Introduction         

Imran Pratapgadhi v. State of Gujarat and Others is a landmark case on freedom of speech, registration of FIR under BNSS, preliminary inquiry, quashing power of High Court and various offences under BNS criminalising hate speech and communal disharmony. The Supreme Court delved into a deep discussion of freedom of speech and what standards should be applied while deciding whether a speech is beyond limits or not, how police officers should act in cases where offence can also be part of an important Constitutional scheme, such as a fundamental right.

The discussion of constitutional principles and ideals of the preamble referred to in this judgment carves clarity of concept between freedom of speech and offence of hate speech, communal hatred and religious disharmony.

Facts

A video posted on internet where a poem was recited was the main issue of this case. A FIR was registered with the Jamnagar Police Station for the offences punishable under Sections 196, 197(1), 302, 299, 57 and 3(5) of the Bhartiya Nyaya Sanhita, 2023 (BNS). The offence was that the poem is hurting the emotional sentiments of one community, inciting against each other and promoting enmity between them. The actual recited poem was this:

The English translation of the same poem is:

“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.”

In response to FIR, a quashing of FIR petition was filed by the Appellant under section 528 of Bharitya Nagrika Suraksha Sanhita (BNSS) read with Article 226 of the Constitution of India. The High Court rejected the petition stating 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.

The appellant preferred the criminal appeal before the Supreme Court with the following issue:

Issue

Whether the registration of FIR violates the appellant’s fundamental right guaranteed under Article 19(1)(a) of the Constitution?

Arguments

Appellant

The counsel representing appellant submitted that the poem does not promote disharmony or feelings of enmity, hatred or icll-will between the various religious, racial, language or regional groups and castes or communities. The poem promotes non-violence and preaches that one must suffer injustice with love and registration of FIR is violation of appellant’s fundamental right under Article 19(1)(a).

Respondent

The Learned Solicitor General of India has taken a fair stand and has left it to the Court to make an appropriate decision. He, however, submitted that the claim of author being Faiz Ahmed Faiz or Habib Jalib is entirely wrong. He further stated that the registration of FIR is obligation of police. The High Court has followed law while rejecting the appellant’s petition.

Judgment

The Supreme Court quashed and set aside the impugned order of High Court and also quashed and set aside FIR registered against appellant with the following reasoning and observation as provided below.

Reasoning

The court provided its consideration in para 10 of the judgment related to poem wherein it was stated by the court that the poem has nothing to do with religion, community, region or race; by no stretch of imagination, the contents affect national integration; it does not jeopardies the sovereignty, unity, integrity or security of India; 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.

Further, 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; and so on.

On the question whether any offence is made

Section 196

There is no offence made out under Section 196 BNS. The offence under Sec. 196 is made only when the words 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 court find nothing in this regard; it found out that there is no allegation against the appellant of organizing any exercise, movement, drill or similar activity. 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.

Section 197

Further, there is no offence committed under section 197 since the poem does not make or publish any imputation and is not concerned with any religious, racial, language, regional group, caste, or community.

Section 299

Section 299 provides punishment for the deliberate and malicious acts, intended to outrage religious feeling of any class by insulting its religion or religious beliefs. From the poem, it cannot be said that the appellant is trying to outrage the religious feeling of any class rather it is only telling what will be the reaction if the fight for right met with injustice.

Section 302

Section 302 provides punishment for uttering words, etc. with deliberate intent to wound religious feelings of any person. The court finds that this section is also not applicable on face of it.

Section 57

Section 57 provides punishment for abetting commission of offence by public or by more than ten persons. The court also find no reason whatsoever possible for this section to be attracted.

Obligation to register FIR

The court determined whether in the given facts it is obligatory to register FIR under 173 of Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS). The court stated that subject to exception provided under Section 173(3), it is mandatory to register FIR when information discloses commission of a cognizable offence.

The court referred para 120 of the case of Lalita Kumar v. Govt. of U.P., wherein it was stated that there is no necessity of preliminary inquiry, if the information discloses commission of a cognizable offence, it is mandatory to register a FIR.

If the police officer did not register the FIR if the information received by him discloses cognizable offence, an action can be taken against such police officer. Also, the scope of preliminary inquiry is not to find out the veracity of the information but only to ascertain that cognizable offence is disclosed or not. Court also gave an illustrative list of cases in which preliminary inquiry can be made:

1. Matrimonial disputes/family disputes
2. Commercial offences
3. Medical negligence cases
4. Corruption cases
5. 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 time of preliminary inquiry is only 15 days or 6 weeks in exceptional cases.

Section 173(3) of BNSS

The court stated that section 173(3) is an exception to section 173 BNSS, it provides offence which is made punishable for 3 years or more but less than 7 years, a preliminary inquiry can be conducted with prior permission of superior officer as mentioned therein. The intention of this section is to prevent registration of FIR in frivolous cases where punishment is up to 7 years, even if the information discloses commission of cognizable offence. After conducting preliminary inquiry, if the officer finds that a prima facie case exist, he is duty bound to register FIR. However,  in case of Lalita Kumari only limited preliminary inquiry is prescribed under section 154 of Code of Criminal Procedure, 1973 (Cr. PC).

FIR registration in this case

The officer registering FIR needs to determine the meaning of contents of poem and ascertain whether a cognizable offence is made out or not. This act of determining meaning would not amount to conduct of preliminary inquiry which is not permissible under Section 173 (1) BNSS.

The Hon’ble Supreme Court referred to Fundamental Duties under Article 51-A of the Constitution wherein under clause (a) it is stated that it is duty of every citizen to abide by the Constitution and respect its ideals and institutions, the National Flag and National Anthem. The police officer must abide by the Constitution and respect it ideals and liberty of thought, expression, belief, faith and worship is an important aspect for every citizen and it is also Fundamental Right of citizens under Article 19(1) (a). Clause (2) of Article 19 laid down certain reasonable restriction under which this right can be curtailed.

Further, the Supreme Court stated that our Constitution is more than 75 years old. By this time, the police officer ought to have 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.

Standard to be applied while ascertaining statements

Supreme Court referred to the para 67 of Bhagwati Charan Shukla v. Provincial Government, C.P. & Berar, wherein Nagpur High Court held that:

“67. Viewing the impugned article in that light we are of opinion, as a matter of fact, that it is not seditious because its professed aim is to obtain a change of Government through the ballot box and not to incite people to a disobedience of the laws of Government. Some extravagance of language there is, and there is the usual crude emotional appeal which is the stock in trade of the demagogue, as well as a blundering and ineffective attempt to ape the poets. But that is all.

However, it is not enough to find that the writer is not guilty of sedition because we are concerned with Section 4 of the Press (Emergency Powers) Act which travels wider than Section 124 A. We have therefore further to see whether these words tend directly or indirectly incite to sedition, or, in the words of the ordinance, whether they are intended or are likely to produce that effect. We say deliberately whether the words are likely to incite to sedition because, as the Federal Court points out, the formula of words used in S. 4, as also in Ordinance, is precisely the formula used in Section 124 A, therefore to the extent of the formula the two things are 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 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, strong-minded, 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.”

Ingredients of Mens Rea

In Ramesh v. Union of India, it was stated by court dealing with the issue of applicability of Section 153-A IPC, in para 13:

“13. ……the effect of the words must be judges from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. … it is the standard of ordinary reasonable man or as they say in English law ‘the man on the top of a Clapham Omnibus’.”

In Manzar Sayeed Khan, the hon’ble Supreme Court has read “intention” as an essential ingredient of the said offence. Every citizen of India has a right to be critical of the action of abrogation of Article 370 and the change of status of Jammu and Kashmir. 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. 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. Right to dissent is essential part of Article 21 of the Constitution of India.

On quashing of FIR

The Supreme Court stated that there is no absolute rule prescribing that a FIR cannot be quashed at the nascent stage, by High Courts exercising it power under Article 226 and Section 482 of CrPC equivalent to 528 of the BNSS.

Further, the judgment of the Full Bench of the Bombay High Court was referred wherein, Justice Dr. D.Y. Chandrachud in Anand Chintamani Dighe v. State of Maharashtra, speaking for the bench stated that “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.”

Conclusion

This judgment analyses the deep impact of analysing freedom of speech and expression from strong minded reasonable person and not from person who scent danger in every hostile situation. The current status of country where standup comedy is making a lot of controversy, judgment like these play an important role by highlighting an important fundamental right in a democratic society. This judgment ensures that wherever a fundamental right is in question, the police must determine, applying reasonable standards, whether an offence is committed or not.

Further, High Court should not abstain from quashing FIR under Article 226 or Section 482 CrPC wherever no offence is made out on face of it, it can always quash FIR even at the nascent stage.

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