Bharatiya Nyaya Sanhita, 2023 – ss.196, 197(1), 299, 302, 57 and 3(5) – Appellant, a Member of Rajya Sabha had put out a video of a mass marriage function on his social media platform, and in the background of the video, the words of the poem in question were uttered – FIR was lodged against the appellant u/ss.196, 197, 299 and 302 alleging that the poem inter alia promoted communal enmity – Whether offences made out: Held: No – Offence u/s.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 – In the present case, the poem 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 or affect national unity – Further, mens rea has to be read into s.196 of the BNS – However, in the present 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 – No prima facie case made out against the appellant u/ss.196, 197, 299 and 302, BNS – FIR was registered mechanically and is an abuse of the process of law – Impugned order set aside – FIR quashed. [Paras 14, 31, 34, 36, 43]
Bharatiya Nyaya Sanhita, 2023 – s.197 – Imputations, assertions prejudicial to national integration:
Held: The poem in question 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. [Para 16] Bharatiya Nyaya Sanhita, 2023 – s.299 – Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs – Whether on facts, the appellant intended to outrage the religious feelings of any class by insulting its religion or religious beliefs: Held: No – Act of the appellant was not 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. [Para 17] Bharatiya Nyaya Sanhita, 2023 – s.302 – Uttering words, etc., with deliberate intent to wound religious feelings of any person – s.302, if applicable on the facts of the present case: Held: No – An offence u/s.302 will be made out if any words are uttered with the deliberate intention of wounding the religious feelings of any person – s.302, is not applicable on its face. [Para 18] Bharatiya Nyaya Sanhita, 2023 – s.57 – Abetting commission of offence by public or by more than ten persons: Held: Even if it is assumed that the appellant has committed some offence, it cannot be said that he has abetted the commission of an offence by the public generally or by any number or class of persons exceeding ten. [Para 19]
Constitution of India – Articles 19, 51-A – Protection of certain rights regarding freedom of speech, etc. – Duty of Police officers to abide by the Constitution – Obligation of the Police u/Article 51-A (a) – Bharatiya Nagarik Suraksha Sanhita, 2023 – s.173(1) – Information in cognisable cases – Object of s.173(3) – If allegation is of commission of an offence covered by the law under clause (2) of Article 19 and if s.173(3) is applicable, preliminary inquiry to be conducted: Held: Police officers must abide by the Constitution and respect its ideals – Liberty of thoughts and expression is one of the ideals of the Constitution – Article 19(1)(a) confers a fundamental right on all citizens to freedom of speech and expression – Police machinery is a part of the State within the meaning of Article 12 – 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 – Laws covered by the clause (2) are protected by way of an exception provided they impose a reasonable restriction – Article 19(2) is an exception to the freedom enumerated under Article 19(1)(a) – Reasonable restrictions provided for in Article 19(2) must remain reasonable and not fanciful and oppressive – Article 19(2) cannot be allowed to overshadow the substantive rights u/Article 19(1), including the right to freedom of speech and expression – Therefore, when an allegation is of the commission of an offence covered by the law referred to in clause (2) of Article 19, if sub-Section (3) of s.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 Article 19(1)(a) remain protected – Therefore, in such cases, the higher police officer referred to in sub-Section (3) of s.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 s.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 s.173 is not exercised, it will defeat the very object of incorporating sub-Section (3) of s.173, BNSS and will also defeat the obligation of the police u/Article 51-A (a) – Even while dealing with the performance of an obligation under sub-Section (1) of s.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 u/Article 19(1)(a) r/w an exception carved out under clause (2) of Article 19 as he is under an obligation to abide by the Constitution and to respect its ideals. [Paras 29, 30] Bharatiya Nagarik Suraksha Sanhita, 2023 – s.173(3) – Information in cognisable cases – Bharatiya Nyaya Sanhita, 2023 – ss.196, 197(1), 299, 302, 57 and 3(5) – Whether on facts, it was obligatory under sub-Section (1) of Section 173 of the BNSS to register FIR:
Held: Sub-Section (3) of s.173 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 present case, all the offences except the offence u/s.57 are punishable by imprisonment for less than
7 years – s.57, on the face of it, is not applicable – Therefore, this option was also available to the police officer in the present case but was not exercised – In the facts of the case, even without taking recourse to sub-Section (3) of s.173, the information furnished to the police officer did not attract the offences punishable u/ss.196, 197, 299 and 302. [Paras 28, 31]
Bharatiya Nagarik Suraksha Sanhita, 2023 – s.173(1) – Information in cognisable cases – Bharatiya Nyaya Sanhita, 2023 – ss.196, 197(1), 299, 302, 57 and 3(5):
Held: Allegations made in the information furnished to an officerin-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 s.173, it is mandatory to register FIR – The offence punishable u/s.196, 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 u/s.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 u/ss.197, 299 and 302, 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 s.173. [Paras 25, 26, 28] Code of Criminal Procedure, 1973 – s.154 – Obligation to register FIR – s.173, BNSS vis-à-vis s.154, CrPC – Lalita Kumari judgment discussed – s.173(3) significant departure from s.154, CrPC. [Paras 23, 24, 42]
Bharatiya Nagarik Suraksha Sanhita, 2023 – s.528 – Code of Criminal Procedure, 1973 – s.482 – Quashing of FIR – Constitution of India – Article 226 – High Court refused to quash the FIR on ground that investigation is at nascent stage – Correctness:
Held: 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 or u/s.482, CrPC equivalent to s.528, BNSS – 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 – 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. [Para 42]
Constitution of India – Article 19 – Importance of the Freedom of speech and expression – Duty of Courts – Enumerated. [Paras 38-40, 42(viii)]
Bharatiya Nyaya Sanhita, 2023 – s.196 – Standard to be applied: Held: When an offence punishable u/s.196 of BNS is alleged, the effect of the spoken or written words will have to be considered based on standards of reasonable, strongminded, 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. [Paras 33, 42] Penal Code, 1860 – s.153-A – Bharatiya Nyaya Sanhita – s.196 – “Mens rea” – Essential ingredient:
Held: Mens rea will have to be read into s.196, BNS – On facts, 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. [Para 34]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.