In the case of Bhagwati Charan Shukla v. Provincial Government, C.P. & Berar[1], (Bose and Puranik, JJ., authored as the Judges of the erstwhile Nagpur High Court) in paragraph 67, it is held thus:
“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 S. 124 A. We have therefore further to see whether these words tend directly or indirectly to 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 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, 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.
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 political thought and occurrences. They realise as well as any one else that neither His Excellency the Governor nor his advisers went round shooting and killing persons. They know that these acts were done by the troops and by the police. They know that there was a demand for an impartial investigation and a judicial enquiry. They know that the demand was refused and they know that the whole complaint, so far as Government is concerned, lies there.
They are therefore no more likely to attribute to Government any greater responsibility than Mr. Jamnadas Mehta and other members of the Central Assembly did. They are as much aware as the writer that the appeal is for a constitutional change of Government by constitutional means. They were not, in our opinion, likely to interpret it otherwise. Therefore, in our judgment, the article does not tend, directly or indirectly to sedition, nor is it likely to produce that result. In out view, the applications should be allowed and the orders of forfeiture set aside. The costs should, we think, in each case be paid by the Crown.”
What is held by Bose and Puranik, JJ. has been quoted with approval in at least two cases. The first such case is in the decision of Manzar Sayeed Khan v. State of Maharashtra[2]. The second case is the decision in the case of Ramesh v. Union of India[3]. Finally, the view taken by Bose and Puranil,JJ., as the Judges of Nagpur High Court, is again quoted with approval by Supreme Court in the case of Javed Ahmad Hajam[4], was dealing with an offence punishable under Section 153-A of the IPC. Section 153-A of the IPC is pari materia with Section 196 of the BNS.
The only difference is that the words ‘or through electric communication’ have been added in clause (a) of Section 196 of the BNS, which were not in clause (a) of Section 153-A of the IPC.
Further, it was approved by the Supreme Court in the most recent case of Imran Pratapgarhi v. State of Gujrat (2025),
“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.”
INGREDIENT OF MENS REA
In the case of Manzar Sayeed Khan and the case of Patricia Mukhim v. State of Meghalaya[5], the ingredient of mens rea has been read into Section 153-A of IPC by Supreme Court. Paragraphs 8 to 14 of the decision in the case of Javed Ahmad Hajam, which analyses both the above decisions, read thus:
“8. Supreme 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. Supreme Court has approved this view in its decision in Ramesh v. Union of India . In the said case, Supreme 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 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’.
Therefore, the yardstick laid down by Vivian Bose, J., will have to be applied while judging the effect of the words, spoken or written, in the context of Section 153-A IPC.”
We may also make a useful reference to a decision of Supreme Court in Patricia Mukhim v. State of Meghalaya. Paras 8 to 10 of the said decision read thus:
“8. ‘It is of utmost importance to keep all speech free in order for the truth to emerge and have a civil society.’— Thomas Jefferson. Freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution is a very valuable fundamental right. However, the right is not absolute. Reasonable restrictions can be placed on the right of free speech and expression in the interest of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence. Speech crime is punishable under Section 153-AIPC.
9. Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony is punishable with imprisonment which may extend to three years or with fine or with both under Section 153-A. As we are called upon to decide whether a prima facie case is made out against the appellant for committing offences under Sections 153-A and 505(1)(c), it is relevant to reproduce the provisions which are as follows:
***
9. Only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquillity, the law needs to step in to prevent such an activity. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153-AIPC and the prosecution has to prove the existence of mens rea in order to succeed.
10. The gist of the offence under Section 153- AIPC is the intention to promote feelings of enmity or hatred between different classes of people. The intention has 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.”
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 153- AIPC will apply only when an act is committed which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities and which disturbs or is likely to disturb the public tranquillity.
11. Now, coming to the words used by the appellant on his WhatsApp status, we may note here that the first statement is that August 5 is a Black Day for Jammu and Kashmir. 5-8-2019 is the day on which Article 370 of the Constitution of India was abrogated, and two separate Union Territories of Jammu and Kashmir were formed. Further, the appellant has posted that “Article 370 was abrogated, we are not happy”. On a plain reading, the appellant intended to criticise the action of the abrogation of Article 370 of the Constitution of India. He has expressed unhappiness over the said act of abrogation. The aforesaid words do not refer to any religion, race, place of birth, residence, language, caste or community.
It is a simple protest by the appellant against the decision to abrogate Article 370 of the Constitution of India and the further steps taken based on that decision. The Constitution of India, under Article 19(1)(a), guarantees freedom of speech and expression. Under the said guarantee, every citizen has the right to offer criticism of the action of abrogation of Article 370 or, for that matter, every decision of the State. He has the right to say he is unhappy with any decision of the State.
12. In Manzar Sayeed Khan, Supreme Court has read “intention” as an essential ingredient of the said offence. The alleged objectionable words or expressions used by the appellant, on its plain reading, cannot promote disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities. The WhatsApp status of the appellant has a photograph of two barbed wires, below which it is mentioned that “AUGUST 5 — BLACK DAY — JAMMU & KASHMIR”. This is an expression of his individual view and his reaction to the abrogation of Article 370 of the Constitution of India. It does not reflect any intention to do something which is prohibited under Section 153-A. At best, it is a protest, which is a part of his freedom of speech and expression guaranteed by Article 19(1)(a).
13. 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. Describing the day the abrogation happened as a “Black Day” is an expression 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.
Imran Pratapgarhi Case (supra)
In Imran Pratapgarhi case, The Supreme Court said,
“The decisions of Supreme Court in the case of Manzar Sayeed Khan and Javed Ahmad Hajam were relied upon by the appellant before the High Court. Therefore, the High Court was aware that it was dealing with the appellant’s fundamental right guaranteed under Article 19 (1)(a) of the Constitution. The High Court quoted both decisions extensively in the judgment. What is surprising is the finding recorded by the High Court. The finding on merits is only in paragraph 22 of the judgment, which reads thus:
“22. Looking to the tenor of the poem, it certainly indicates something about the throne. The responses received to the said post by other persons also indicate that message was posted in a manner which certainly create disturbance in social harmony. It is expected from any citizen of India that he should behave in a manner where the communal harmony or social harmony should not be disturbed, and the petitioner, who is a Member of Parliament, is expected to behave in some more restricted manner as he is expected to know more about the repercussions of such post.”
36. 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.
37. 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 Supreme Court in the case of State of Haryana v. Bhajan Lal[6].”
Reference
Imran Pratapgarhi v. State of Gujrat (2025)
[1] 1946 SCC OnLine MP 5
[2] (2007) 5 SCC 1
[3] (1988) 1 SCC 668
[4] (2024) 4 SCC 156
[5] (2021) 15 SCC 35
[6] 1992 Supp (1) SCC 335