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TMI Blog2025 (3) TMI 1483X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in paragraph 13 of the impugned judgment, which reads thus: "ए खून (blood) के प्यासो (thirsty) बात सुनो ग़र हक्क़ (truth) की लड़ाई जुल्म (excesses/injustice) सही हम जुल्म (excesses/injustice) से इश्क़ (love) निभा देंगे गर शम- ए- गिरिया (melting of a candle which resembles tears) आतिश (flame) है हर राह वो शम्मा (light) जला देंगे गर लाश हमारे अपनोंकी खतरा है तुम्हारी मसन ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance 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) 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 Maharash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using shock, inciting others to commit a crime." (emphasis added) 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. 13. Now, let us examine whether any offence as alleged is attracted. Section 196 of the BNS reads thus: "196. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.-(1) Whoever- (a) by words, either spoken or written, or by signs or by visible representations or through electronic communication or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. Section 197 reads thus: "197. Imputations, assertions prejudicial to national integration.-(1) Whoever, by words either spoken or written or by signs or by visible representations or through electronic communication or otherwise,- (a) makes or publishes any imputation that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India; or (b) assert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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. 18. Even offence under Section 302 of the BNS has been alleged, which reads thus: "302. Uttering words, etc., with deliberate intent to wound religious feelings of any person.-Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both." An offence under Section 302 will be made out if any words are uttered with the deliberate intention of wounding the religious feelings of any person. Even this section is not applicable on its face. 19. Section 57 of the BNS is alleged to be applicable, which reads thus: "57. Abetting commission of offence by public o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be; (b) the recording of such information shall be videographed; (c) the police officer shall get the statement of the person recorded by a Magistrate under clause (a) of sub-section (6) of Section 183 as soon as possible. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant or the victim. (3) Without prejudice to the provisions contained in Section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is given by the woman against whom an offence under Section 326-A, Section 326-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376C, Section 376-D, Section 376-DA, Section 376-DB, Section 376-E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer: Provided further that- (a) in the event that the person against whom an offence under Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376C, Section 376-D, Section 376-DA, Section 376-DB], Section 376-E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made timebound and in any case it should not exceed fifteen days generally and in excep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (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 Kumari2 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 sub-Section (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry. Therefore, when the commission of cognizable offences is alleged, where punishment is for imprisonment up to 7 years, which is based on spoken or written words, it will always be appropriate to exercise the option under sub-Section (3) of Section 173 and conduct a preliminary inquiry to ascertain whether there exists a prima facie case to proceed. If an option under sub-Section (3) is not exercised by the police officer in such a case, he may end up registering an FIR against a person who has exercised his fundamental right under Article 19 (1)(a) even though clause (2) of Article 19 is not attracted. If, in such cases, the option under sub-Section (3) of Section 173 is not exercised, it will defeat the very object of incorporating sub-Section (3) of Section 173 of the BNSS and will also defeat the obligation of the police under Article 51-A (a). 30. Even while dealing with the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o in the Ordinance, is precisely the formula used in S. 124 A, therefore to the extent of the formula the two things are the same. The only difference is that under the Press Act we have to consider not only whether there is sedition in fact but also whether the words tend, directly or indirectly, to excite to sedition and whether they are intended or are likely to produce that effect. We pause to observe that here, as in the case of reasonable doubt in criminal cases, and as in the case of putting in fear of hurt in a matter of assault, we must use the standards of reasonable, strongminded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. Using those standards we hold as a fact that the effects apprehended by the Crown and required by the section are not likely to be caused by this article, nor do the words used, viewed in their proper setting, tend to cause that effect. The paper is in English. It has a limited circulation. It is read by those who know and understand English. It is a party paper and is read mainly by persons who are politically minded. They are aware of contemporary pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curity or of those who always perceive criticism as a threat to their power or position. INGREDIENT OF MENS REA 34. In the case of Manzar Sayeed Khan4 and the case of Patricia Mukhim v. State of Meghalaya (2021) 15 SCC 35, the ingredient of mens rea has been read into Section 153-A of IPC by this Court. Paragraphs 8 to 14 of the decision in the case of Javed Ahmad Hajam6, which analyses both the above decisions, read thus: "8. This Court in Manzar Sayeed Khan referred to the view taken by Vivian Bose, J., as a Judge of the erstwhile Nagpur High Court in Bhagwati Charan Shukla v. Provincial Govt. A Division Bench of the High Court dealt with the offence of sedition under Section 124-AIPC and Section 4(1) of the Press (Emergency Powers) Act, 1931. The issue was whether a particular article in the press tends, directly or indirectly, to bring hatred or contempt to the Government established in law. This Court has approved this view in its decision in Ramesh v. Union of India . In the said case, this Court dealt with the issue of applicability of Section 153-AIPC. In para 13, it was held thus : "13. ... the effect of the words must be judged from the standards of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The matter complained of within the ambit of Section 153-A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning." (emphasis in original and supplied) 10. Now, coming back to Section 153-A, clause (a) of sub-section (1) of Section 153-AIPC is attracted when by words, either spoken or written or by signs or by visible representations or otherwise, an attempt is made to promote disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities. The promotion of disharmony, enmity, hatred or ill will must be on the grounds of religion, race, place of birth, residence, language, caste, community or any other analogous grounds. Clause (b) of sub-section (1) of Section 153AIPC will apply only when an act is committed which is prejudicial to the maintenance of harmony between different religious, racial, langua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of protest and anguish. If every criticism or protest of the actions of the State is to be held as an offence under Section 153-A, democracy, which is an essential feature of the Constitution of India, will not survive. 14. The right to dissent in a legitimate and lawful manner is an integral part of the rights guaranteed under Article 19(1)(a). Every individual must respect the right of others to dissent. An opportunity to peacefully protest against the decisions of the Government is an essential part of democracy. The right to dissent in a lawful manner must be treated as a part of the right to lead a dignified and meaningful life guaranteed by Article 21. But the protest or dissent must be within four corners of the modes permissible in a democratic set up. It is subject to reasonable restrictions imposed in accordance with clause (2) of Article 19. In the present case, the appellant has not at all crossed the line." 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. IMPUGNED JUDGMENT 35. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 1992 Supp (1) SCC 335. IMPORTANCE OF THE FREEDOM OF EXPRESSION AND THE DUTY OF THE COURTS 38. 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. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the mainstream are cardinal values. A society wedded to the rule of law cannot trample upon the rights of those who assert views which may be regarded as unpopular or contrary to the views shared by the majority. Right of the playwright, of the artist, writer and of the poet will be reduced to husk if the freedom to portray a message - whether it be in canvas, prose or verse - is to depend upon the popular perception of the acceptability of that message. Popular perceptions cannot override constitutional values such as the guarantee of freedom. Relevant portion of the aforesaid judgment is extracted hereunder with approval: "19. .......But, it is important to realise that there are eternal values on which the Constitution of a democracy is founded. Tolerance of a diversity of view points and the acceptance of the freedom to express of those whose thinking may not accord with the mainstream are cardinal values which lie at the very foundation of a democratic form of Government. A society wedded to the rule of law, cannot trample upon the rights of those who assert views which may be regarded as unpopular or contrary to the views shared by a majority. The law d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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