Imran Pratapgadhi vs State Of Gujarat 2025 INSC 410 - Ss. 173 BNSS - S.196 BNS - Article 19 Constitution - Freedom of Speech - Preliminary inquiry
Bharatiya Nagarik Suraksha Sanhita 2023 - Section 173(3) ; Constitution of India - Article 19(2) - 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 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 sub- Section (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry.
Bharatiya Nagarik Suraksha Sanhita 2023 - Section 173(3) -Sub-Section (3) of Section 173 of the BNSS makes a significant departure from Section 154 of CrPC- 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- 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. (Para 42- i-ii)
Bharatiya Nyaya Sanhita 2023 - Section 196 - Mens rea will have to be read into Section 196 (Para 34) - 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. (Para 42-vi) 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. (Para 42-iii)
Constitution of India - Article 12 - 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. (Para 42-iv)
Constitution of India - Preamble - 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. (Para 42-iv)
Bharatiya Nagarik Suraksha Sanhita 2023 - Section 528 ; Code of Criminal Procedure 1973 - Section 482 - Constitution of India - Article 226 - 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. (Para 42-vii)
Bharatiya Nagarik Suraksha Sanhita 2023 - Section 173 - 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. (Para 25)
Quotable Quotes- 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. (Para 42-viii) 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. (Para 42-ix)
1. What is the significance of the preliminary inquiry introduced in Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023?
Section 173(3) of the BNSS marks a significant departure from the earlier Code of Criminal Procedure (CrPC) Section 154. In specific categories of cases covered under this sub-section, a police officer is empowered to conduct a preliminary inquiry before registering a First Information Report (FIR), even if the information received discloses the commission of a cognizable offense. This inquiry aims to ascertain whether a prima facie case exists to proceed against the accused, ensuring that the fundamental rights, particularly freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution, are protected.
2. In what type of offenses is a preliminary inquiry under Section 173(3) of the BNSS considered appropriate?
When an allegation pertains to an offense covered by Article 19(2) of the Constitution (which allows for reasonable restrictions on freedom of speech and expression), a preliminary inquiry under Section 173(3) is usually appropriate. This is to carefully assess if the threshold for such restrictions has been met before a formal investigation is launched, safeguarding freedom of speech.
3. What is the procedure if a police officer conducts a preliminary inquiry under Section 173(3) of the BNSS?
After conducting a preliminary inquiry, if the police officer concludes that a prima facie case exists, they must immediately register an FIR and proceed with the investigation. However, if the officer believes that no prima facie case is made out, they must immediately inform the first informant or complainant, allowing them to avail the remedy provided under Section 173(4) of the BNSS.
4. How should police officers assess allegations related to offenses under Section 196 of the Bharatiya Nyaya Sanhita (BNS) 2023 (related to speech and expression)?
When dealing with offenses punishable under Section 196 of the BNS, which likely pertains to offenses related to speech and expression, police officers must consider the effect of the spoken or written words based on the standards of reasonable, strong-minded, firm, and courageous individuals. They should not judge the impact based on the sensitivities of those with weak or insecure minds or those who perceive criticism as a threat. The officer must read or hear the words, take them as correct, and then determine if they constitute an offense under Section 196. This initial assessment to ascertain if a cognizable offense is made out does not amount to a prohibited preliminary inquiry under Section 173(1) of the BNSS. Furthermore, mens rea (criminal intent) must be considered in relation to Section 196.
5. How does the Constitution of India influence the actions of the police regarding freedom of speech and expression?
The police machinery is considered part of the "State" under Article 12 of the Constitution and police officers, as citizens, are bound to abide by the Constitution. They have a duty to honor and uphold the fundamental right to freedom of speech and expression (Article 19(1)(a)), which is also reflected in the Preamble's emphasis on liberty of thought and expression. If the police or executive fail to protect these rights, the courts are obligated to intervene.
6. Can the High Court intervene in a case involving freedom of speech and expression even when the investigation is at an initial stage?
Yes, the High Court can exercise its inherent powers under Article 226 of the Constitution or Section 482 of the CrPC (equivalent to Section 528 of the BNSS) to quash an offense even if the investigation is at a nascent stage. If the High Court finds that no offense is made out on the face of it, it can interfere to prevent abuse of the legal process. There is no absolute bar on the High Court's power to quash an FIR solely because the investigation is in its early stages; it depends on the specific facts and circumstances of each case and the nature of the offense.
7. What is the judiciary's role in safeguarding freedom of speech and expression in the context of these new laws?
The courts are duty-bound to uphold and enforce the fundamental rights guaranteed by the Constitution, including freedom of speech and expression. Even if judges personally dislike certain spoken or written words, their duty is to uphold the right to express them. They must step in if the police or executive fail to honor and protect this fundamental right. The judiciary recognizes that a healthy democracy requires the free exchange of ideas, even if some views are disliked by many. Stifling legitimate expressions of view in the public domain would be detrimental to a free society.
8. What is the underlying philosophy regarding freedom of expression as highlighted in the provided text?
The core philosophy emphasizes that free expression of thoughts and views is integral to a healthy civilized society and a dignified life (guaranteed by Article 21). In a healthy democracy, differing viewpoints should be countered with opposing arguments, and the right to express views must be respected even if widely disliked. Various forms of expression, including literature, poetry, drama, films, stand-up comedy, satire, and art, enrich human lives. The text cautions against a fragile understanding of national fundamentals where mere artistic expression can be seen as leading to animosity or hatred, as this would stifle essential public discourse.