2025 (3) TMI 1483 - SC - Indian Laws

Poem recited in the background of a video clip posted on social media - offence under Sections 196 197(1) 299 302 57 and 3(5) of the Bharatiya Nyaya Sanhita 2023 (BNS) - promoting enmity between groups imputations prejudicial to national integration and deliberate acts intended to outrage religious feelings - Mens rea - Free expression of thoughts and views by individuals or group of individuals - appellant is a Member of the Rajya Sabha - HELD THAT - 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. In the instant case as we have seen no prima facie case can be said to have been made out against the appellant qua the sections invoked. In such a case registration of the FIR appears to be a very mechanical exercise and is a clear abuse of the process of law. In fact registration of such FIR virtually borders on perversity. We are surprised that this very crucial aspect escaped the notice of the High Court. The High Court ought to have nipped the mischief at the threshold itself. 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. We fail to understand how the High Court concluded that the message was posted in a manner that would certainly disturb social harmony. Thereafter the High Court gave a reason that the investigation was at a nascent stage. 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. If such embargo is taken as an absolute rule it will substantially curtail the powers of the High Court which have been laid down and recognised by this Court in the case of State of Haryana v. Bhajan Lal 1990 (11) TMI 386 - SUPREME COURT 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 satire and art make the life 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 also 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. Thus 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.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered in this judgment are:

- Whether the poem recited in the background of a video posted on social media by the appellant constitutes an offence under Sections 196, 197(1), 299, 302, 57, and 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS), specifically relating to promoting enmity between groups, imputations prejudicial to national integration, and deliberate acts intended to outrage religious feelings.

- Whether the poem and the video incite hatred, enmity, or ill-will between different religious, racial, language, or regional groups or communities, thereby affecting national unity and social harmony.

- Whether the registration of the First Information Report (FIR) against the appellant was justified under the provisions of the BNS and the constitutional framework, including the fundamental right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India.

- The extent and scope of the police's obligation to register an FIR upon receipt of information alleging commission of a cognizable offence under Section 173 of the BNSS, particularly the applicability of the preliminary inquiry provision under sub-Section (3) of Section 173.

- The standards and principles to be applied in assessing whether the poem's content constitutes an offence, including the mens rea requirement and the test of reasonable, strong-minded individuals.

- The role and powers of the High Court in quashing FIRs at the nascent stage of investigation, especially when fundamental rights are implicated.

- The constitutional importance of freedom of speech and expression and the duty of courts to protect this right, even when the expression may be unpopular or controversial.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Whether the poem constitutes an offence under the BNS provisions alleged

Relevant legal framework and precedents: Sections 196, 197(1), 299, 302, and 57 of the BNS outline offences related to promoting enmity between groups, imputations prejudicial to national integration, outraging religious feelings, and abetment of offences. The Court also referred to analogous provisions under the IPC, including Section 153-A, and seminal precedents such as Manzar Sayeed Khan v. State of Maharashtra, Patricia Mukhim v. State of Meghalaya, and Javed Ahmad Hajam v. State of Maharashtra, which emphasize the requirement of mens rea and the standard of reasonable, strong-minded individuals in evaluating such offences.

Court's interpretation and reasoning: The Court undertook a detailed linguistic and contextual analysis of the poem, both in original Urdu and its English translation. It concluded that the poem:

• Does not target or refer to any religion, caste, community, or group;
• Does not promote disharmony, hatred, or ill-will between different groups;
• Does not affect national integration or jeopardize sovereignty, unity, or security;
• Preaches non-violence and advocates meeting injustice with love;
• Symbolically addresses the "throne" (rulers) warning about sacrifice in the fight against injustice;
• Lacks any deliberate or malicious intention to outrage religious feelings or incite violence.

Applying the statutory provisions, the Court held that none of the ingredients of the offences under Sections 196, 197, 299, 302, or 57 of the BNS were made out on the face of the FIR or the poem's content. The poem's words did not promote enmity or hatred on any prohibited grounds, nor did it contain false or misleading imputations prejudicial to national integration. There was no allegation or evidence of organizing any violent activity or abetment by the appellant.

Key evidence and findings: The poem's text, its translation, the context of the video (a mass wedding function), and the appellant's affidavit clarifying the poem's source and message were critical. The absence of any direct reference to religious or communal groups and the peaceful, non-violent message were decisive.

Treatment of competing arguments: The prosecution's claim that the poem incited enmity and hatred was rejected as baseless. The appellant's argument that the poem was a message of love and non-violence was accepted. The Court noted that mere criticism or protest, even if unpopular, is protected under Article 19(1)(a).

Conclusion: The poem does not constitute any offence under the BNS sections alleged.

Issue 2: Obligation to register FIR and the scope of preliminary inquiry under Section 173 of BNSS

Relevant legal framework and precedents: Section 173 of BNSS and Section 154 of CrPC govern the registration of FIRs and preliminary inquiries. The Court relied heavily on the landmark decision in Lalita Kumari v. Govt. of U.P., which mandates mandatory FIR registration if information discloses a cognizable offence, with limited scope for preliminary inquiry only to ascertain if a cognizable offence is made out. The BNSS introduces a significant deviation via sub-Section (3) of Section 173, allowing a preliminary inquiry with prior permission when the offence is punishable with imprisonment between three and seven years.

Court's interpretation and reasoning: The Court explained that the police officer must read or hear the alleged words and take them as correct to decide if a cognizable offence is made out; this exercise is not a preliminary inquiry prohibited under sub-Section (1). The preliminary inquiry under sub-Section (3) of Section 173 BNSS is an exception, allowing discretion to prevent frivolous FIRs in offences punishable up to seven years. The Court emphasized that this discretion should be exercised especially when fundamental rights under Article 19(1)(a) are involved, to protect freedom of speech and expression.

Key evidence and findings: The police did not exercise the option to conduct a preliminary inquiry under sub-Section (3) of Section 173 BNSS in this case, despite the offences alleged being punishable by less than seven years. The Court found this omission problematic as it led to a mechanical and unjustified registration of the FIR.

Treatment of competing arguments: The prosecution argued that the police were obligated to register the FIR and that the High Court correctly refused quashing. The Court disagreed, holding that the police failed to properly apply the law and that the High Court erred in not appreciating the lack of offence on the face of the complaint.

Conclusion: The police should have either conducted a preliminary inquiry under sub-Section (3) of Section 173 BNSS or refrained from registering the FIR, given the absence of a cognizable offence.

Issue 3: Standard of assessment of the alleged offence and mens rea requirement

Relevant legal framework and precedents: The Court referred to the standard laid down by Vivian Bose, J., in Bhagwati Charan Shukla v. Provincial Government, and subsequent approvals in Manzar Sayeed Khan and Javed Ahmad Hajam, requiring the effect of words to be judged by reasonable, strong-minded, firm, and courageous individuals rather than weak or vacillating minds. The mens rea or intention to promote enmity or hatred is a sine qua non for offences under Sections 196 and 197 of BNS (analogous to Section 153-A IPC).

Court's interpretation and reasoning: The Court held that the poem's language and context do not reveal any intention to incite hatred or disharmony. The appellant's expression was a legitimate protest and criticism, protected under Article 19(1)(a). The Court emphasized that the right to dissent and express unpopular views is fundamental in a democracy.

Key evidence and findings: The poem's content, the circumstances of its posting, and the absence of any incitement to violence or hatred were central. The Court noted the appellant's affidavit affirming the poem's message of love and non-violence.

Treatment of competing arguments: The prosecution's allegations of incitement and hatred were rejected as lacking mens rea. The Court underscored that the prosecution must prove the intention to promote enmity, which was absent.

Conclusion: Mens rea is essential and is absent here; thus, no offence is made out.

Issue 4: Powers of the High Court to quash FIR at the nascent stage of investigation

Relevant legal framework and precedents: The Court referred to its own precedents, including State of Haryana v. Bhajan Lal, which recognize the High Court's power to quash FIRs to prevent abuse of process of law. The Court rejected the notion of a blanket embargo on quashing FIRs merely because the investigation is at an early stage.

Court's interpretation and reasoning: The Court held that when no offence is made out on the face of the complaint, the High Court must intervene to prevent misuse of the criminal justice system. The High Court's failure to appreciate this principle and to quash the FIR was a serious error.

Key evidence and findings: The impugned High Court order merely deferred to the nascent stage of investigation without analyzing the absence of offence, which the Supreme Court found unacceptable.

Treatment of competing arguments: The prosecution relied on the nascent stage of investigation to justify refusal to quash; the Court rejected this as an absolute rule.

Conclusion: The High Court has jurisdiction and duty to quash FIRs where no offence is prima facie made out, irrespective of the stage of investigation.

Issue 5: Constitutional importance of freedom of speech and expression and the duty of courts

Relevant legal framework and precedents: Article 19(1)(a) guarantees freedom of speech and expression, subject to reasonable restrictions under Article 19(2). The Court cited multiple precedents, including Shreya Singhal v. Union of India and Anand Chintamani Dighe, emphasizing the cardinal importance of free expression in a democratic society and the courts' role in protecting this right.

Court's interpretation and reasoning: The Court underscored that freedom of expression is essential to a dignified life under Article 21 and that courts must zealously protect this right, even when the expression is unpopular or controversial. The Court warned against stifling legitimate expression through frivolous or vexatious criminal proceedings.

Key evidence and findings: The Court highlighted the poem as a form of artistic and political expression deserving constitutional protection.

Treatment of competing arguments: The Court rejected any approach that would suppress dissent or legitimate criticism under the guise of maintaining social harmony.

Conclusion: The fundamental right to freedom of speech and expression must be upheld and protected by courts against misuse of criminal law.

3. SIGNIFICANT HOLDINGS

- "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; ... (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."

- "The offence under Section 196 is attracted when the words ... 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 police officers must abide by the Constitution and respect its ideals. ... 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."

- "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."

- "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 ... 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."

- "Free expression of thoughts and views by individuals or groups 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."

- "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)."

- "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 ... 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."

- The impugned FIR and proceedings based thereon are quashed as no offence is made out, and the registration of the FIR was a mechanical and unjustified exercise.