Factual aspect
1. On 26th January 2025, our Constitution became 75 years old. One of the most important fundamental rights conferred on the citizens of India is under Article 19 (1)(a) of the Constitution. It is the fundamental right of freedom of speech and expression. This case shows that even after 75 years of the existence of our Constitution, the law enforcement machinery of the State is either ignorant about this important fundamental right or does not care for this fundamental right.
Issue: A poem recited in the background of video clip
2. The issue in this appeal revolves around a poem recited in the background of a video clip. The video clip was posted on social media by the appellant. The text of the poem has been reproduced in paragraph 13 of the impugned judgment, which reads thus:
“ ……… “
The spoken words of the poem incite people of one community against another, and it hurts a community’s religious and social sentiments
3. The appellant is a Member of the Rajya Sabha. The 2nd respondent is the first informant at whose instance a First Information Report (for short, ‘FIR’) was registered with Jamnagar Police Station for the offences punishable under Sections 196, 197(1), 302, 299, 57 and 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short, ‘the BNS’). In the complaint of the 2nd respondent, he stated that on 29th December 2024, on the occasion of the birthday of one Altaf Ghafarbhai Khafi, a member of the Municipal Corporation of Jamnagar, a mass wedding program was held at Sanjari Education and Charitable Trust. The said Municipal Councillor invited the present appellant to the function. A video of the event was made. The appellant posted the video on the social media platform ‘X’ from his verified account. The video has the recitation of the poem reproduced above in the background. The allegation in the complaint is that the spoken words of the poem incite people of one community against another, and it hurts a community’s religious and social sentiments. It is alleged that the song had lyrics that incited people of other communities to fight for the community’s rights. It is alleged that the video posted by the appellant created enmity between two communities at the national level and hatred towards each other. It was further alleged that it had a detrimental effect on national unity.
Proceedings before the high court
Quash preferred against the registered FIR
4. The appellant filed a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (for short, ‘the BNSS’) read with Article 226 of the Constitution of India, praying for quashing the said FIR. While issuing notice on the said petition, the learned Judge had directed the appellant to file an affidavit disclosing the poem’s source. Accordingly, an affidavit was filed by the appellant. In paragraphs 3 to 5 of the affidavit, he stated thus:
“3. In compliance with this Hon’ble Court’s oral order dated 13.01.2025 in R/Special Criminal Application (Quashing) No.551 of 2025, I stated that the poem in question, based on available information, including sources reviewed through ChatGPT and public domain opinions, the poem is attributed to either Faiz Ahmed Faiz or Habib Jalib. However, as internet opinions remain divided, I am unable to conclusively ascertain the definite authorship between the two. A copy of the screenshot of the results of ChatGPT search engine are annexed herewith and marked as ANNEXURE-A.
4. It is further stated that a plain reading of the song poem, it is a message of love and non-violence
5. I further solemnly affirm that I am not the writer of the song/poem in question.
6. I state that the annexures produced with this affidavit are true copies of their originals.” (emphasis added)
Quash dismissed quoting Neeharika Infrastructure Pvt Ltd
5. By the impugned judgment and order, the learned Single Judge rejected the petition by holding that as the investigation is at a very nascent stage, interference cannot be made in view of the decision of this Court in the case of Neeharika Infrastructure Pvt. Ltd. v State of Maharashtra.
Consideration of submissions
Words spoken – English translation of the poem
9. A broad English translation of the said poem reads thus:
“Those who are blood thirsty, listen to us If the fight for our rights is met with injustice We will meet that injustice with love If the drops flowing from a candle are like a flame (Analogy: if the tears from our face are like a flame) We will use it to light up all paths If the bodies of our loved ones are a threat to your throne We swear by God that we will bury our loved ones happily Those who are blood thirsty, listen to us.”
Conclusion of Apex court in the poem
10. On plain reading of the original Urdu version and its English translation, the following conclusions can be drawn:
a) This poem has nothing to do with any religion, community, region or race;
b) By no stretch of imagination, the contents affect national integration;
c) It does not jeopardise the sovereignty, unity, integrity or security of India;
d) It suggests that while fighting to secure our rights if we are met with injustice, we will face it with love. We will use our tears as flames to light up all paths;
e) It gives a warning to the throne (the rulers). It states that if the bodies of our loved ones are a threat to the rulers, we will bury our loved ones happily;
f) It preaches non-violence. It says that if the fight for our rights is met with injustice, we will meet injustice with love. This gives a message that injustice should not be retaliated, but it should be met with love;
g) The poem refers to the throne in the context of the fight against injustice. The reference to the throne is symbolic. It is a reference to an entity which is responsible for causing injustice. It gives a warning that if the bodies of loved ones are a threat to the throne, we will happily accept the deaths of our loved ones. It suggests that one should be willing to sacrifice life in the fight against injustice; and
h) Thus, the poem does not encourage violence. On the contrary, it encourages people to desist from resorting to violence and to face injustice with love. It states that if our fight with injustice results into the death of our near and dear ones, we would be happy to bury their bodies.
Whether any offence is made out?
Poem does not refer to any religion, caste or language
12. The poem does not refer to any religion, caste or language. It does not refer to persons belonging to any religion. By no stretch of imagination, does it promote enmity between different groups. We fail to understand how the statements therein are detrimental to national unity and how the statements will affect national unity. On its plain reading, the poem does not purport to affect anyone’s religious feelings.
Section 196 BNS would attract only when the poem promote enmity between different groups
13. Now, let us examine whether any offence as alleged is attracted. Section 196 of the BNS reads thus:
“ ………… “
14. The offence under Section 196 is attracted when the words, either spoken or written, or by signs or visible representations, promote enmity between different groups, on the grounds of religion, race, place of birth, residence, language, caste or, community or any other ground. The offence will be attracted when the words either spoken or written, or signs or visible representation, promote or attempt to promote disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities. On a plain reading of the poem, we find that the same has nothing to do with any religion, caste, community or any particular group. The poem’s words do not bring about or promote disharmony or feelings of hatred or ill-will. It only seeks to challenge the injustice made by the ruler. It is impossible to say that the words used by the appellant disturb or are likely to disturb public tranquility. Therefore, neither clause (a) nor clause (b) of Section 196 (1) are attracted. There is no allegation against the appellant of organising any exercise, movement, drill or similar activity. There is no allegation against the appellant that he uttered the words in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies. Hence, clause (c) will have no application. The appellant has put a video of a mass marriage function, and in the background, the words are uttered. Therefore, Section 196 can have no application.
16. As stated earlier, the poem does not make or publish any imputation and is not concerned with any religious, racial, language, regional group, caste, or community. It does not suggest that any class of persons have been denied rights as citizens because they are members of a religious, racial, language, regional group, caste, or community. It does not make or publish any assertion, counsel, plea or appeal likely to cause disharmony or feeling of enmity or hatred or ill will. The poem does not publish or make any false or misleading information.
Section 299 BNS: Poem only wrote against the rulers and hence not attracted
17. Offence under Section 299 of the BNS is also alleged against the appellant, which reads thus:
“299. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.—Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or through electronic means or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
To say the least, it is ridiculous to say that the act of the appellant is intended to outrage the religious feelings of any class by insulting its religion or religious beliefs. The poem only tells the rulers what the reaction will be if the fight for rights is met with injustice.
Obligation to register a first information report
20. The question is whether in the facts of the case, it was obligatory under sub-Section (1) of Section 173 of the BNSS to register FIR. Section 173, which deals with information in cognizable cases, reads thus:
“ …………. “
No further inquiry can be made by the police officer if the information discloses commission of cognizable offence
Sub-Section (1) provides for giving information relating to the commission of a cognizable offence. It may be given orally or by electronic communication to the officer-incharge of a police station. If the information discloses the commission of a cognizable offence, it is mandatory to record the substance of the information in a book to be kept by the officer in the form prescribed by the State Government. No further inquiry can be made by the police officer if the information discloses the commission of a cognizable offence. Therefore, subject to the exception carved out by sub-Section (3) of Section 173, which we will deal with later, it is mandatory to record the information in a book. Thus, it is mandatory to register the FIR if information received discloses the commission of a cognizable offence.
22. Sub-Section (1) of Section 173 of BNSS is substantially the same as Sub-Section (1) of Section 154 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’). Therefore, the law laid down by this Court in the case of Lalita Kumari v. Govt. of U.P. on Section 154 of the CrPC will be relevant. Paragraph 120 of the said decision containing conclusions/directions reads thus:
“ ……………. ”
Provision & Procedure to do preliminary enquiry under BNSS explained
23. Section 154 of the CrPC does not provide for making any preliminary inquiry. However, as held in the case of Lalita Kumari, a preliminary inquiry is permissible if the information received does not disclose a cognizable offence and indicates the necessity for an inquiry. A preliminary inquiry must be conducted only to ascertain whether a cognizable offence is disclosed. However, sub-Section (3) of Section 173 of the BNSS makes a significant departure from Section 154 of the CrPC. It provides that when information relating to the commission of a cognizable offence which is made punishable for 3 years or more but less than 7 years is received by an officer-in-charge of a police station, with the prior permission of a superior officer as mentioned therein, the police officer is empowered to conduct a preliminary inquiry to ascertain whether there exists a prima facie case for proceeding in the matter. However, under Section 154 of the CrPC, as held in the case of Lalita Kumari, only a limited preliminary inquiry is permissible to ascertain whether the information received discloses a cognizable offence. Moreover, a preliminary inquiry can be made under the CrPC only if the information does not disclose the commission of a cognizable offence but indicates the necessity for an inquiry. Sub-Section (3) of Section 173 of the BNSS is an exception to sub-Section (1) of Section 173. In the category of cases covered by sub-Section (3), a police officer is empowered to make a preliminary inquiry to ascertain whether a prima facie case is made out for proceeding in the matter even if the information received discloses commission of any cognizable offence. That is very apparent as sub-Section (3) of Section 173 refers explicitly to receiving information relating to the commission of a cognizable offence. Therefore, in a case where sub-Section (3) of Section 173 is applicable, even if the information pertaining to the commission of any cognizable offence is received, an inquiry can be conducted to ascertain whether a prima facie case exists for proceeding in the matter. The intention appears to be to prevent the registration of FIRs in frivolous cases where punishment is up to 7 years, even if the information discloses the commission of the cognizable offence. However, under Section 154 of the CrPC, the inquiry permitted by paragraph 120.2 of the decision in the case of Lalita Kumari is limited only to ascertain whether the cognizable offence is disclosed.
24. Under sub-Section (3) of Section 173 of the BNSS, after holding a preliminary inquiry, if the officer comes to a conclusion that a prima facie case exists to proceed, he should immediately register an FIR and proceed to investigate. But, if he is of the view that a prima facie case is not made out to proceed, he should immediately inform the first informant/complainant so that he can avail a remedy under sub-Section (4) of Section 173.
Example how to do preliminary enquiry?
25. Before we go into the applicability of sub-Section (3) of Section 173 of the BNSS to the facts of the case, we must deal with sub-Section (1) of Section 173. Take a case where a person approaches an officer-in-charge of a police station either personally or by electronic communication and alleges that he has seen ‘A’ assaulting ‘X’ with a stick. If the injury caused is simple, it will be an offence punishable under Section 115 (2) of the BNS. As per the first Schedule of the BNSS, it is a non-cognizable offence. Therefore, based on such information, FIR cannot be registered. If grievous hurt is caused, it will be an offence punishable under Section 117 (2) of the BNS, which is a cognizable offence. Therefore, the allegations made in the information furnished to an officer-in-charge of a police station must be examined by the officer only with a view to ascertain whether a cognizable offence is made out. Taking the information as correct, the officer has to determine whether it makes out a case of the commission of a cognizable offence. If the allegation makes out a case of a cognizable offence, unless the offence falls in sub-Section (3) of Section 173, it is mandatory to register FIR.
In this case, the officer must have considered the meaning of the spoken or written words
26. Coming back to the offence punishable under Section 196 of the BNS to decide whether the words, either spoken or written or by sign or by visible representations or through electronic communication or otherwise, lead to the consequences provided in the Section. The police officer to whom information is furnished will have to read or hear the words written or spoken, and by taking the same as correct, decide whether an offence under Section 196 is made out. Reading of written words, or hearing spoken words will be necessary to determine whether the contents make out a case of the commission of a cognizable offence. The same is the case with offences punishable under Sections 197, 299 and 302 of the BNS. Therefore, to ascertain whether the information received by an officer-in-charge of the police station makes out a cognizable offence, the officer must consider the meaning of the spoken or written words. This act on the part of the police officer will not amount to making a preliminary inquiry which is not permissible under sub-Section (1) of Section 173.
Example
27. We will give an example. A person utters the following words. “If the rulers attack me, I will not retaliate and, on the contrary, face the attack with love. If I do that, it will lead to the defeat of the rulers.” If the person who furnishes information, alleges that these words are spoken or written to promote enmity between different groups as provided in Section 196, while deciding whether the information is of commission of a cognizable offence, the officer concerned will have to read and understand the meaning of the alleged spoken words. This exercise does not amount to making a preliminary inquiry which is prohibited under sub-Section (1) of Section 173 of BNSS.
28. Sub-Section (3) of Section 173 of the BNSS confers a discretion on the officer receiving information relating to the commission of a cognizable offence to conduct a preliminary inquiry to ascertain whether a prima facie case exists to proceed. This option is available when the offence alleged is made punishable for 3 years or more but less than 7 years. In the facts of the case, all the offences except the offence under Section 57 of the BNS are punishable by imprisonment for less than 7 years. Section 57, on the face of it, is not applicable. Therefore, this option was also available to the police officer in the present case. The officer did not exercise the said option.
The State must ensure that the police officers are educated and sensitized by starting massive training programs
30. Even while dealing with the performance of an obligation under sub-Section (1) of Section 173, where the commission of the offence is based on spoken or written words, the police officer concerned will have to keep in mind the fundamental rights guaranteed under Article 19(1)(a) read with an exception carved out under clause (2) of Article 19. The reason is that he is under an obligation to abide by the Constitution and to respect the ideals under the Constitution. The Constitution is more than 75 years old. By this time, the police officers ought to have been sensitized about their duty of abiding by the Constitution and respecting the ideals of the Constitution. If the police officers are not aware of these obligations, the State must ensure that they are educated and sensitized by starting massive training programs.
31. In the facts of the case, even without taking recourse to sub-Section (3) of Section 173 of the BNSS, the information furnished to the police officer did not attract the offences punishable under Sections 196, 197, 299 and 302 of the BNS.
Mens rea
Hence, mens rea will have to be read into Section 196 of the BNS. In this case, looking to the text of the words spoken and the context in which those were spoken, it is impossible to attribute any mens rea to the appellant.
Conclusion
42. Following is the summary of our conclusions:
(i) Sub-Section (3) of Section 173 of the BNSS makes a significant departure from Section 154 of CrPC. It provides that when information relating to the commission of a cognizable offence which is made punishable for 3 years or more but less than 7 years is received by an officer-incharge of a police station, with the prior permission of a superior officer as mentioned therein, the police officer is empowered to conduct a preliminary inquiry to ascertain whether there exists a prima facie case for proceeding in the matter. However, under Section 154 of the CrPC, as held in the case of Lalita Kumari, only a limited preliminary inquiry is permissible to ascertain whether the information received discloses a cognizable offence. Moreover, a preliminary inquiry can be made under the CrPC only if the information does not disclose the commission of a cognizable offence but indicates the necessity for an inquiry. Sub-Section (3) of Section 173 of the BNSS is an exception to sub-Section (1) of Section 173. In the category of cases covered by sub-Section (3), a police officer is empowered to make a preliminary inquiry to ascertain whether a prima facie case is made out for proceeding in the matter even if the information received discloses commission of any cognizable offence.
(ii) Under sub-Section (3) of Section 173 of the BNSS, after holding a preliminary inquiry, if the officer comes to a conclusion that a prima facie case exists to proceed, he should immediately register an FIR and proceed to investigate. But, if he is of the view that a prima facie case is not made out to proceed, he should immediately inform the first informant/complainant so that he can avail a remedy under sub-Section (4) of Section 173.
(iii) In case of the offence punishable under Section 196 of the BNS to decide whether the words, either spoken or written or by sign or by visible representations or through electronic communication or otherwise, lead to the consequences provided in the Section, the police officer to whom information is furnished will have to read or hear the words written or spoken, and by taking the same as correct, decide whether an offence under Section 196 is made out. Reading of written words, or hearing spoken words will be necessary to determine whether the contents make out a case of the commission of a cognizable offence. The same is the case with offences punishable under Sections 197, 299 and 302 of BNS. Therefore, to ascertain whether the information received by an officer-in-charge of the police station makes out a cognizable offence, the officer must consider the meaning of the spoken or written words. This act on the part of the police officer will not amount to making a preliminary inquiry which is not permissible under sub-Section (1) of Section 173.
(iv) The police officers must abide by the Constitution and respect its ideals. The philosophy of the Constitution and its ideals can be found in the preamble itself. The preamble lays down that the people of India have solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic and to secure all its citizens liberty of thought, expression, belief, faith and worship. Therefore, liberty of thought and expression is one of the ideals of our Constitution. Article 19(1)(a) confers a fundamental right on all citizens to freedom of speech and expression. The police machinery is a part of the State within the meaning of Article 12 of the Constitution. Moreover, the police officers being citizens, are bound to abide by the Constitution. They are bound to honour and uphold freedom of speech and expression conferred on all citizens.
(v) Clause (2) of Article 19 of the Constitution carves out an exception to the fundamental right guaranteed under sub-clause (a) of clause (1) of Article 19. If there is a law covered by clause (2), its operation remains unaffected by sub-clause (a) of clause (1). We must remember that laws covered by the clause (2) are protected by way of an exception provided they impose a reasonable restriction. Therefore, when an allegation is of the commission of an offence covered by the law referred to in clause (2) of Article 19, if subSection (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused. This will ensure that the fundamental rights guaranteed under sub-clause (a) of clause (1) of Article 19 remain protected. Therefore, in such cases, the higher police officer referred to in subSection (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry.
(vi) When an offence punishable under Section 196 of BNS is alleged, the effect of the spoken or written words will have to be considered based on standards of reasonable, strong-minded, firm and courageous individuals and not based on the standards of people with weak and oscillating minds. The effect of the spoken or written words cannot be judged on the basis of the standards of people who always have a sense of insecurity or of those who always perceive criticism as a threat to their power or position.
(vii) There is no absolute rule that when the investigation is at a nascent stage, the High Court cannot exercise its jurisdiction to quash an offence by exercising its jurisdiction under Article 226 of the Constitution of India or under Section 482 of the CrPC equivalent to Section 528 of the BNSS. When the High Court, in the given case, finds that no offence was made out on the face of it, to prevent abuse of the process of law, it can always interfere even though the investigation is at the nascent stage. It all depends on the facts and circumstances of each case as well as the nature of the offence. There is no such blanket rule putting an embargo on the powers of the High Court to quash FIR only on the ground that the investigation was at a nascent stage.
viii) Free expression of thoughts and views by individuals or group of individuals is an integral part of a healthy civilised society. Without freedom of expression of thoughts and views, it is impossible to lead a dignified life guaranteed by Article 21 of the Constitution. In a healthy democracy, the views, opinions or thoughts expressed by an individual or group of individuals must be countered by expressing another point of view. Even if a large number of persons dislike the views expressed by another, the right of the person to express the views must be respected and protected. Literature including poetry, dramas, films, stage shows including stand-up comedy, satire and art, make the lives of human beings more meaningful. The Courts are duty-bound to uphold and enforce fundamental rights guaranteed under the Constitution of India. Sometimes, we, the Judges, may not like spoken or written words. But, still, it is our duty to uphold the fundamental right under Article 19 (1)(a). We Judges are under an obligation to uphold the Constitution and respect its ideals. If the police or executive fail to honour and protect the fundamental rights guaranteed under Article 19 (1)(a) of the Constitution, it is the duty of the Courts to step in and protect the fundamental rights. There is no other institution which can uphold the fundamental rights of the citizens.
(ix) 75 years into our republic, we cannot be seen to be so shaky on our fundamentals that mere recital of a poem or for that matter, any form of art or entertainment, such as, stand-up comedy, can be alleged to lead to animosity or hatred amongst different communities. Subscribing to such a view would stifle all legitimate expressions of view in the public domain which is so fundamental to a free society.
43. Though this judgment is authored by one of us (Abhay S. Oka, J.), it is based on valuable inputs by Ujjal Bhuyan, J.
44. In the circumstances, the impugned order deserves to be set aside. We, accordingly, quash and set aside the impugned order. We also quash and set aside FIR No. 11202008250014 of 2025, registered with City A-Division Police Station, Jamnagar, and further proceedings based thereon. The Appeal is accordingly allowed.
Judgments Cited or relied
1. Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra – Citation: 2021 SCC Online SC 315 – Context: Discussed regarding the stage of investigation and interference by the court.
2. Lalita Kumari v. Govt. of U.P. – Citation: (2014) 2 SCC 1 – Context: Established the mandatory registration of FIRs when a cognizable offence is disclosed.
3. Manzar Sayeed Khan v. State of Maharashtra – Citation: (2007) 5 SCC – Context: Addressed the standards for judging the effect of words in promoting enmity.
4. Ramesh v. Union of India – Citation: (1988) 1 SCC 668 – Context: Related to the interpretation of free speech and its limits.
5. Javed Ahmad Hajam v. State of Maharashtra – Citation: (2024) 4 SCC 156 – Context: Discussed the applicability of Section 153-A IPC, similar to Section 196 of the BNS.
6. Bhagwati Charan Shukla v. Provincial Government, C.P. & Berar – Citation: 1946 SCC OnLine MP 5 – Context: Explored the standards for determining sedition and free speech.
7. Shreya Singhal v. Union of India – Citation: (2015) SCC 1 – Context: Examined the importance of freedom of speech and expression under Article 19(1)(a).
Acts and Sections Cited
1. Indian Penal Code (IPC)
– Section 196: Promoting enmity between different groups.
– Section 197: Imputations prejudicial to national integration.
– Section 299: Deliberate and malicious acts intended to outrage religious feelings.
– Section 302: Uttering words with the intention to wound religious feelings.
2. Bharatiya Nyaya Sanhita (BNS)
– Section 57: Abetting the commission of an offence by the public.
– Section 173: Information in cognizable cases.
– Section 154 of the Code of Criminal Procedure (CrPC): Registration of FIRs in cognizable offences.
3. Constitution of India
– Article 19(1)(a): Right to freedom of speech and expression.
– Article 19(2): Reasonable restrictions on freedom of speech.
Party
Case Name: Imran Pratapgadhi vs. State of Gujarat; Case Number: Criminal Appeal No. 1545 of 2025; Citation: 2025 INSC 410; Date of Judgment: March 28, 2025; Judges: Justices Abhay S. Oka and Ujjal Bhuyan.
