12.4. To sum up, laws restricting speech must be narrowly tailored. There must be a direct and imminent connection between the speech and the likelihood of rebellion or secession to invoke such provisions. Legitimate dissent or criticism cannot be equated with sedition or antinational acts. For instance, in cases involving Section 124A (sedition) of the repealed IPC, casual or rhetorical statements did not amount to sedition, unless, of course, they incite violence or public disorder. To my mind, a similar approach would apply to Section 152. Its broad phrasing necessitates careful application to prevent misuse or overreach. The provision must be interpreted in conjunction with the constitutional rights to free speech and expression to ensure it does not infringe on democratic freedoms. One must stay mindful that the provision is used as a shield for national security and not a sword against legitimate dissent.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Misc(Pet.) No. 5005/2024
Tejender Pal Singh @ Timma Vs State Of Rajasthan,
HON'BLE MR. JUSTICE ARUN MONGA
Pronounced on : 16/12/2024.
1. Lakhvinder Singh (Respondent No. 2/complainant), a citizen of
India, asserts that Tejender Pal Singh (the petitioner) poses a threat to
India's integrity and sovereignty, thus prompting him to file a police
complaint/report. The said complaint was subsequently
converted/registered as an FIR, which is assailed herein. The petitioner,
calls himself to be a preacher of Sikh religion, claiming to be officially
appointed by Sikh Gurudwara Prabandak Committee, Amritsar as coordinator of Dharam Prachaarak Committee for state of Rajasthan. He,
on the other hand, contends that the complainant is a proxy planted by
a rival from another Gurdwara to exploit state machinery and settle
[2024:RJ-JD:34845] (2 of 32) [CRLMP-5005/2024]
personal scores. His stand is that the allegations against him are
baseless and part of a vendetta. More of it, in greater details, later.
1.1. Instant Criminal Misc. Petition is for quashing of F.I.R.
No.0239/2024 dated 06.07.2024 registered at Police Station Purani
Abadi, District Ganganagar, and all consequential proceedings for
alleged offences under Sections 152 and 197(1)(c) of the Bhartiya
Nyaya Sanhita, 2023.
FACTS
2. Succinctly, relevant facts, shorn of unnecessary details, are that
the complainant lodged a written report with P.S. Purani Abadi, District
Sri Ganganagar, alleging that on July 5, 2024, at approximately 3:30
PM, the petitioner posted an audio-video recording on his account
Facebook from Baba Deep Singh Gurudwara. In the recording, the
petitioner reportedly expressed sympathy for Amritpal Singh, an elected
member of Parliament in Lok Sabha. The said MP is currently in judicial
custody, lodgedin a jail in Assam. According to the complainant, the
petitioner’s speech was anti-national, advocating for Khalistan, and
deeply offensive to his religious sentiments. The petitioner is further
accused of disseminating anti-national content on social media i.e.
Facebook/WhatsApp, with the complainant expressing concerns that this
could incite public unrest. Additionally, it is alleged that the petitioner
maintains his association with pro-Khalistan individuals and has been
seen displaying Khalistan flags at public events.
2.1. In fact, narrative as given in the police complaint (converted inverbatim into FIR), being apposite, is translated in English as under :-
“To
The Station House Officer,
Police Station Purani Abadi,
Sri Ganganagar.
[2024:RJ-JD:34845] (3 of 32) [CRLMP-5005/2024]
For taking legal action by registering a case against the
accused Tejendrapal Singh Timma for hurting religious
sentiments on Facebook and WhatsApp groups and
instigate sedition by misleading the public and demanding
Khalistan by making comments against the country.
The complainant states/reports as under :
1. That the complainant is a Jat Sikh having faith in his religious
sentiments. That the complainant is connected on social media with
accused Tejendrapal Singh Timma s/o Surjeet Singh through Facebook and
WhatsApp groups.
2. That on 05.07.2024 at around 03.00-03:30 pm, a video was made by
accused Tejendrapal Singh Timma on his Facebook ID while sitting in the
office at Gurudwara Babadeep Singh located in Purani Abadi. In the said
video, the accused expressed his sympathy with the so-called Amritpal
Singh, who had committed the crime of treason by occupying a police
station in Punjab and is imprisoned in the jail of Dibrugarh, Assam for that
crime, and is against the country of India. While making comments, he gave
provocative speeches, demanding Khalistan that will make the government
bawl which has hurt his religious sentiments and addressing the public in
the name of treason i.e. demanding Khalistan, due to which there is
possibility of unrest or riots in the country. Statements regarding treason
are being made continuously on Facebook and WhatsApp groups by
accused Tejendrapal Singh Timma, which has hurt the religious sentiments
of the applicant because the applicant is an Indian citizen and the applicant
remains loyal to the Constitution of India. If in this way the accused keeps
making demand of Khalistan, then at any time, the public can get angry
which may lead to any untoward incident. Accused Tejendrapal Singh
Timma has relations with the people demanding Khalistan and in this
regard, the accused has also made his pictures and videos viral, wherein he
is seen roaming around with Khalistan flags in gatherings and programs in
whole country. All the photographs and videos in this regard are attached
with the application. Now the applicant has also come to know that 25-30
cases are pending against the accused Tejendrapal Singh Timma in various
courts.
3. That the video made by the accused on social media Gurudwara Baba
Deep Singh is situated in the puraniabadi area of Padampur Road, Sri
Ganganagar, which comes under the area of the old abadi police station
area.
4. That the accused Tejendra Pal Singh had insulted the Collector and used
threatening words in the Collector’s Office, Sri Ganganagar, whose videos
have been made by the accused. Before this incident, the accused while
standing in front of the office of Superintendent of Police has insulted and
threatened him and he had said, whoever comes in between, will have to
face consequences. Before that, he used threatening words in front of the
Collector and said that we are the death warrants who went to Delhi and
killed Indra. Therefore, by submitting an application, it is requested that a
case should be registered against the accused Tejendrapal Singh Timma for
hurting religious sentiments on Facebook and WhatsApp groups, inciting
treason by misleading the public and demanding Khalistan by making
comments against the country and take legal action.
Please register the FIR and pass appropriate order directing the police
officials PS puraniabadi, Sri Ganganagar, for taking further action.”
[2024:RJ-JD:34845] (4 of 32) [CRLMP-5005/2024]
2.2. Basis above complaint/report, the FIR impugned herein was
registered.
3. In the aforesaid factual backdrop, I have heard the rival
contentions and perused the case file and also gone through the
contents of the FIR.
SUBMISSIONS ON BEHALF OF THE PETITIONER
4. Mr. Vikas Balia, learned Senior Counsel for the petitioner at the
outset would contend that the FIR is false and frivolous, claiming that it
is the result of personal animosity arising out of rivalry between groups
of two different gurudwaras located in the same neighbourhood. His
argument is that the complainant is a close associate of another
individual with whom the petitioner has a dispute and that the FIR is an
abuse of the legal process, having been lodged at the instance of a
proxy of the rival of the petitioner.
5. He would submit that the complainant had previously also filed
two other false FIRs due to this animosity. He asserted that a review of
the video in question will show that the petitioner did not demand a
separate State or incite violence, but merely criticized political figures.
Consequently, he contended that the FIR lacks merit and is an attempt
to harass the petitioner.
6. Adumbrating further, learned Senior Counsel for the petitioner
would argue that from the bare perusal of the contents of the video
dated 05/07/2024, it becomes evident that the same does not
constitute offence punishable u/s 152 or 197(1)(c) of the BNS, 2023 as
the alleged act of the petitioner cannot be said to amount to excite or
attempt to excite secession or armed rebellion or subversive activities
or encouragement of separatist activity or endangering the sovereignty
or unity and integrity of India. The petitioner has merely criticized the
[2024:RJ-JD:34845] (5 of 32) [CRLMP-5005/2024]
amendment brought in the parliament regarding the procedure of
taking oath right before the oath ceremony of the said Member of
Parliament- Amritpal Singh was scheduled.
6.1. Moreover, the explanation to section 152 of BNS, 2023 makes it
crystal clear that comments expressing disapprobation of the measures
or administrative or other action of the Government with a view to
obtain their alteration by lawful means without exciting or attempting to
excite the activities referred into this section do not constitute an
offence under the said section.
6.2. The essential ingredients of the offence are conspicuously missing
in the alleged audio-video recording referred to by the complainant in
the impugned FIR.
6.3. The complainant has levelled the allegations against the petitioner
that he has made statements against India and demanded Khalistan
while showing his sympathy towards Amritpal Singh who is an elected
member of Parliament. However, a bare perusal of the contents of the
alleged AVR makes it crystal clear that none of these allegations leveled
by the complainant against the petitioner in the FIR are present in the
alleged video and the entire genesis of the FIR lodged against the
petitioner is misconceived and distorted.
6.4. The allegations levelled against the petitioner in the impugned FIR
on the basis of the remaining AVRs are thus false, vague and are in
respect of events of the dates prior to the date on which the BNS, 2023
was brought into effect i.e., prior to 01/07/2024.
6.5. During the course of the arguments, the learned counsel for the
complainant played an alleged video of the petitioner before this Court
wherein he was in chains and was protesting against the State
authorities. He would contendthat, what is pertinent is that the
[2024:RJ-JD:34845] (6 of 32) [CRLMP-5005/2024]
petitioner was merely protesting against the conduct of the State for
refusing to release the prisoners who had completed the maximum
sentence of the offence that they have been charged with.
6.6. Furthermore, he would point out that the complainant though
claims the aforesaid incident to be at the office of the Superintendent of
Police and District Magistrate, Sri Ganganagar, but none of the State
authorities have filed any FIR / complaint against the petitioner for the
said incident, about which allegations have been levelled by the
complainant. This clearly establishes the fact that the version of the
said incident as alleged by the complainant is absolutely false and
concocted.
6.7. The said video played / shown by the petitioner dates way back to
the year 2016. Hence, even if the said allegations contained in the FIR
are taken as it is, the same does not constitute an offence under the
provisions of BNS 2023 which came into effect from 1st July, 2024. BNS,
2023 being a substantive criminal law cannot be applied retrospectively.
In other words, the petitioner cannot be charged with an offence for
under the BNS 2023 for an act which was done at the time when the
BNS 2023 was not in force. Hence, the impugned FIR based on those
allegations cannot be sustained in the eyes of law, he would
emphatically argue.
6.8. Even otherwise, the said allegations contained in the impugned
FIR have been levelled after an extraordinarily and unexplained delay of
6-7 years. As no FIR was lodged against the petitioner either by the
State authorities or by the complainant at the relevant point of time in
year 2016 or later, the allegations pertaining to the same have been
added in the present FIR only in order to add artificial gravity to the
present case, which is nothing but an abuse of process of law.
[2024:RJ-JD:34845] (7 of 32) [CRLMP-5005/2024]
6.9. He would urge that the petitioner is a social worker with strong
religious belief in Sikhism and has received various
accolades/appreciation letters from the diverse departments of the
State Government as well as the administrative officers. The
complainant who is nurturing a grudge against the petitioner cannot be
permitted to seek fishing or a roving inquiry against the petitioner by
referring to the alleged incidents/videos which are more than 8 years
old, since no FIR was lodged against the petitioner at the relevant point
of time.
7. In support of his aforesaid arguments, learned Senior Counsel
relied on judgments in Mohammad Wajid &Anr. Versus State of
U.P.1
, Balwant Singh &Anr. Vs. State of Punjab2
, Javed Ahmad
Hajam Vs. State of Maharashtra3
, Kedar Nath Singh Vs. State of
Bihar4
.
7.1. Learned Senior Counsel for the petitioner thus urged that in light
of his arguments and read with judgments ibid, the impugned FIR and
entire subsequent proceedings may be quashed and set aside.
7.2. Learned Senior Counsel also relied on the Supreme Court
judgment rendered in case ofPradmodSuryabhanPawar vs. State of
Maharashtra5
, in respect of WhatsApp messages wherein it is opined
as under:-
“23. Without entering into a detailed analysis of the content of the
WhatsApp messages sent by the appellant and the words alleged to have
been spoken, it is apparent that none of the offences set out above are
made out. The messages were not in public view, no assault occurred,
nor was the appellant in such a position so as to dominate the will of the
complainant. Therefore, even if the allegations set out by the complainant
with respect to the WhatsApp messages and words uttered are accepted
on their face, no offence is made out under the SC/ST Act (as it then
1
2023 Livelaw (SC) 624 : 2023 INSC 683
2
[1995] 0 AIR (SC) 1785
3
[2024] 3 S.C.R. 317 : 2024 INSC 187
4
[1962] 0 AIR (SC) 955
5
(2019) 9 SCC 608, 2019 INSC 939
[2024:RJ-JD:34845] (8 of 32) [CRLMP-5005/2024]
stood). The allegations on the face of the FIR do not hence establish the
commission of the offences alleged.”
PROSECUTION ARGUMENTS
8. Per contra, Mr. Vikram Singh Rajpurohit, learned Public Prosecutor
would argue that he is in receipt of factual report and which reveals that
petitioner is a serial offender and as may as 18 FIR in past were
registered against him.
8.1. The accused-Petitioner has been consistently making and
publishing videos on his Facebook and WhatsApp group against the
sovereignty of the State. It was thus that, on the basis of above
allegations, that an F.I.R., sought to be quashed herein, was registered.
8.2. During investigation it has also come to light that the Petitioner,
through his videos, is carrying out propaganda of being part of the
Sikhs who were present in the Golden Temple/Harmandir Sahib
Gurudwara during the operation Blue Star against the Defence forces of
country for the Sikh Community. He is doing so through digital means,
thus instigating others to raise demand of declaring Punjab State as
Khalistan State which is against the sovereignty and integrity of the
Nation. Due to his such acts, there is an apprehension of disturbance in
the sovereignty and integrity of the Nation.
8.3. Petitioner is a habitual offender against whom multiple cases have
been registered under the provisions of TADA act, Assault, Destruction
of Government Property and hurting the religious sentiments of the
public.
8.4. After the investigation, offences under section 152, 197(1)(C) of
the Bharatiya Nyaya Sanhita, 2023 are prima facie found to be proved
against the Petitioner.
[2024:RJ-JD:34845] (9 of 32) [CRLMP-5005/2024]
8.5. Furthermore, learned PP would point out that the petitioner has
been evading to appear before the Investigating Officer. Resultantly,
further investigation has not even taken off due to such dilatory tactics.
The present petition deserved to be thus dismissed, learned PP would
thus contend.
CONTENTIONS ON BEHALF OF THE COMPLIANANT
9. M/s Himmat Jagga and Deepesh Singh Beniwal, learned counsel
for the complainant/respondent No.2 would seek dismissal of the
petition submitting thus :-
9.1. That the petitioner has admitted the fact that he has made viral
the alleged video (video no. 1) on his Facebook account. In this video,
he has stated that Amritpal Singh (now a sitting MP from Khadoor Sahib
(Punjab) and presently lodged in Central Jail Dibrugarh (Assam) will
raise the slogan of Khalistan in Parliament) and now the Government
could not do anything except screaming. He has 32K followers on
Facebook account. His video has been seen by 8.4K people and has
been shared by 77. He has, therefore, tried to encourage the feelings of
separatist activities by electronic communication. He is in close touch of
Amritpal Singh and his team as is evident from the photographs. This
act of the petitioner comes under Sections 152 and 197((1)(C)of BNS,
2023. Therefore, the impugned FIR ought not to be quashed by this
court.
9.2. It was also urged that after getting interim relief from this Court
in this very case, the petitioner again uploaded another reel and a
photo on his Facebook account with comment “1984 tks/kiqj tsy n s canh vkt
njckj lkfgc ”kghn xSyjh fo[ks) and “njckj lkfgc fLFkr ”kghn xSyjh esa tks/kiqj tsy lkfFk;ksa ds lkFk vkt
dh ,d ;knxkj rLohjA 1984 dk oks ldk ftlesa dqN ”kghn gq,] dqN t[eh gq,] dqN fxjQrkj gq, vksj dqN
[2024:RJ-JD:34845] (10 of 32) [CRLMP-5005/2024]
Qjkj gq,A tax ds vkye esa gksrk Hkh ;gh gSA ckck cank flag cgknqj ls ysdj canh fla?kksa dh nkLrku gekj s lkeus
gSA’’.
9.3. The said video has been recorded with the portrait of deceased
Jarnail Singh Bhindrawala in the background. Same reflects that the
petitioner is misusing the interim orders passed by this Court.
Petitioner is again trying to encourage feelings of separatist activities by
electronic communication. By the said act he has also tried to pollute
the mind of the youth. This act is endangering the sovereignty and
integrity of India and comes under the definition of 152 BNS, 2023.
Only on this ground alone, the present petition deserves to be
dismissed.
9.4. Entire matter is only at a preliminary stage and the investigation
has not been proceeded with, except some preliminary effort made on
the date of the registration of the case. The evidence has to be
gathered after a thorough investigation and placed before the
competent trial Court. Basis thereof alone, the Court can come to a
conclusion one way or the other on the plea of mala fides. If the
allegations are found bereft of truth and made maliciously, the
investigation will disclose so. At this stage, when there are only
allegations and recriminations, but no evidence, this Court cannot
anticipate the result of the investigation and render a finding on the
question of mala fides. Therefore, the complaint/FIR should not be
thrown overboard on the mere unsubstantiated plea of mala fides. Even
assuming that the complainant filed the complaint only on account of
his personal animosity, that, by itself, will not be a ground sufficient to
discard the complaint containing serious allegations. Same has to be
tested and weighed after the evidence is collected.
[2024:RJ-JD:34845] (11 of 32) [CRLMP-5005/2024]
9.5. Reliance was placed on Supreme Court in the case of Vinod
Raghuvanshi Vs. Ajay Arora6
. It is held therein that investigation
should not be shut out at the threshold, if the allegations have some
substance. FIR has to be taken on its face value. There is no question of
considering the merits of the allegations contained in the FIR at
preliminary stage or testing the veracity of allegations. In the present
case, the petitioner himself has admitted that he had made viral the
alleged video and he used the word of Khalistan. Therefore, the instant
FIR can not be quashed.
9.6. Relying further on judgment rendered in Satvinder Kaur Vs.
State-Govt. of NCT of Delhi7
, learned counsel for the complaint would
lay emphasis on the following extract thereof :-
“14. Further, the legal position is well settled that if an offence is disclosed
the court will not normally interfere with an investigation into the case and
will permit investigation into the offence alleged to be completed. If the
FIR, prima facie, discloses the commission of an offence, the court does
not normally stop the investigation, for, to do so would be to trench upon
the lawful power of the police to investigate into cognizable offences.
[State of W.B. v. Swapan Kumar Guha, (1982) 1 SCC 561 : 1982 SCC
(Cri) 283] It is also settled by a long course of decisions of this Court that
for the purpose of exercising its power under Section 482 CrPC to quash
an FIR or a complaint, the High Court would have to proceed entirely on
the basis of the allegations made in the complaint or the documents
accompanying the same per se; it has no jurisdiction to examine the
correctness or otherwise of the allegations. [Pratibha Rani v. Suraj
Kumar, (1985) 2 SCC 370, 395 : 1985 SCC (Cri) 180]”
9.7. Learned counsel for the complainant would therefore submit that
it would not be proper for this Court to analyze the case of the
complainant in the light of all probabilities in order to determine
whether a conviction would be sustainable and on such premise, arrive
at a conclusion that the proceedings are to be quashed. It would be
erroneous to evaluate and assess the material placed before this Court
to conclude that the FIR/complaint cannot be proceeded with.
6
(2013) 10 SCC 581
7
(1999) 8 SCC 728
[2024:RJ-JD:34845] (12 of 32) [CRLMP-5005/2024]
9.8. They would further point out that the petitioner has raised the
defence of mala fide against complainant while stating that the
complainant along with certain others had lodged the various FIR’s
against him in which the police has filed negative final reports.
Complainant had also lodged another FIR No. 290/2022 at PS
Padampur, district Sriganganagar against the petitioner and others. It
was reported therein that the petitioner along with others had taken
away the holy book of Shri Guru Granth Sahib from Gurudwara and
deposited the same with Damdama Sahib. The petitioner has even
defied court orders. Despite a status quo directive in Civil Suit No.
119/2019, he issued a video publicly declaring the interim order’s
applicability. The Guru Granth Sahib was forcibly removed, leading to
registration FIR No. 168/2020. It was thus that the police filed the
negative final report in FIR No. 290/2022, on the ground that on the
same cause of action, one Avtar Singh had already lodged an FIR No.
168/2020 at Police Station Chunawadh, District Sriganganagar. The
complainant has moved a protest petition in the matter and same is still
pending before the Judicial Magistrate, Padampur, District
Sriganganagar.
9.9. That one Jagseer Singh had also lodged FIR No. 222/2020 under
Section 295,295-A,499,500 IPC against the petitioner at Police Station
Kotwali, Sriganganagar. The police again filed the negative final report
in this FIR. But the Complainant therein has also filed protest petition
and is contesting the matter.
9.10. Another FIR No. 198/22 under Section(s) 395, 153, 153(a) and
153(b) IPC was registered against the petitioner at Police Station
Kotwali, Srigangangar (available at page no. 25 of the instant Crl. Misc.
Petition). In that too, the police filed negative final report. The
[2024:RJ-JD:34845] (13 of 32) [CRLMP-5005/2024]
complainant therein again filed protest petition and is contesting the
matter. In aforesaid two FIRs No. 198/22 and in FIR No. 222/20, the
allegations against the petitioner are to raise the slogans of Khalistan,
but the police, acting under the pressure of the petitioner, has filed the
negative final report. Since his childhood, the petitioner is a staunch
supporter of Khalistan and Jarnail Singh Bhindrawala. This act is
fortified by the videos, reel and photos submitted by the complainant
along with the written submissions. Such type of persons are very
harmful for the sovereignty and integrity of the India.
9.11. In yet another FIR No. 88/16, registered under Section 3 of
Prevention of Damage to Public Property Act and Section 245 of
Rajasthan Municipality Act against the petitioner, he is alleged to have
caused illegal encroachment of land of Gurudwara Baba Deep Singh,
Srigangangar. In this FIR also, the police filed negative final report
without conducting any inquiry under the fear and pressure of the
petitioner and other members of the Gurudwara. The complainant
therein too has filed the protest petition in this matter also and
contesting the matter.
9.12. That once the information is reported at the police station and an
FIR is registered, then the question of mala fides of the informant would
be of secondary importance. It is the material collected during the
investigation and evidence adduced in the court which decides the fate
of the accused person. The allegations of mala fides against the
informant are of no consequence and cannot by themselves be the basis
for quashing the proceedings. Reference was made to Dhanalakshmi v.
R. Prasanna Kumar8
, State of Bihar v. P.P. Sharma9
, RupanDeol Bajaj v.
8
[1990 Supp SCC 686 : 1991 SCC (Cri) 142]
9
[1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192]
[2024:RJ-JD:34845] (14 of 32) [CRLMP-5005/2024]
Kanwar Pal Singh Gill10, State of Kerala v. O.C. Kuttan11, State of U.P. v.
O.P. Sharma12, Rashmi Kumar v. Mahesh Kumar Bhada13, Satvinder
Kaur v. State (Govt. of NCT of Delhi)14 and Rajesh Bajaj v. State NCT of
Delhi15.The counsels reiterated the aforesaid position by citing still more
case law viz State of Karnataka v. M. Devendrappa16, State of M.P. v.
Awadh Kishore Gupta17 and State of Orissa v. Saroj Kumar Sahoo18
.
9.13. Relying on the above case law, they would insist that, if the FIR
allegations indicate a cognizable offense, the informant's mala fides
become irrelevant. The petitioner has himself candidly admitted to
making a video go viral, advocating for Khalistan, leaving thus no
choice for this Court to entertain the instant petition.
9.14. The petitioner has a history of over 20 criminal cases and has
spent more than nine years in jail due to involvement in Operation Blue
Star and association with Jarnail Singh Bhindranwale.
Referring to various videos, they would, inter alia, urge that a video
from the petitioner's Facebook account shows him declaring allegiance
to Jarnail Singh Bhindranwale. In another video, alongside Amritpal
Singh, he called for establishing Sikh rule and urged readiness for
sacrifice. In another video, the petitioner organized a rally where
participants displayed Bhindranwale's photos and attempted to
influence young Sikhs to follow Bhindranwale's ideology.
9.15. In a TV interview, the petitioner himself admitted to serving over
nine years in various jails related to Operation Blue Star and openly
advocated for Sikh rule in Punjab.
10[(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]
11[(1999) 2 SCC 651 : 1999 SCC (Cri) 304]
12[(1996) 7 SCC 705 : 1996 SCC (Cri) 497]
13[(1997) 2 SCC 397 : 1997 SCC (Cri) 415]
14[(1999) 8 SCC 728 : 1999 SCC (Cri) 1503]
15[(1999) 3 SCC 259 : 1999 SCC (Cri) 401]
16[(2002) 3 SCC 89 : 2002 SCC (Cri) 539]
17[(2004) 1 SCC 691 : 2004 SCC (Cri) 353]
18[(2005) 13 SCC 540 : (2006) 2 SCC (Cri) 272] , SCC pp. 547-50, paras 8-11
[2024:RJ-JD:34845] (15 of 32) [CRLMP-5005/2024]
9.16. The petitioner habitually pressures authorities by mobilizing
protests. In one instance, he led a gathering declaring that Sikhs would
not tolerate government policies. He even mentioned Indira Gandhi's
assassination and stated that Sikhs are one who went to Delhi and
killed Indira (Prime Minister Indira Gandhi) (vlh aekSr ns vk ijokus gSaA ftUgksus fnYyh
tkds bfUnjk Bksdh).
9.17. The petitioner’s actions, in collaboration with Amritpal Singh,
aimed at establishing Khalistan and promoting separatism, undermine
national unity. His admission of making the video viral precludes
quashing the FIR. Section 152 BNS penalizes acts inciting separatism,
rebellion and/or threats to India’s sovereignty. With a record of
incarceration for Operation Blue Star and clear admission of creating
and sharing the video advocating for Khalistan, the petitioner is not
entitled to any relief from this Court.
10. To sum up, learned counsel for the complainant would argue that
the petitioner’s conduct and the contents of audio video recordings and
the tone and tenor of the petitioner are self-speaking.
10.1. Learned counsel for the complainant and learned Public
Prosecutor would re-emphasize, in unison, on petitioner’s speech, which
he has self-uploaded on Facebook and WhatsApp. They would argue
that said speech clearly discloses the statutorily prescribed ingredients
under Sections 152 and 197(1)(c) of the Bhartiya Nyaya Sanhita, 2023.
Therefore, they urge that the petition be dismissed.
DISCUSSION, ANALYSIS AND OPINION
11. Having heard both sides and perused the record of the case, I
shall now proceed to deal with the rival submissions and render my
opinion by recording reason thereof in the succeeding part.
[2024:RJ-JD:34845] (16 of 32) [CRLMP-5005/2024]
12. First and foremost, let us see the penal sections invoked herein by
the prosecution i.e. 152 and 197(1)(c) of the Bhartiya Nyaya Sanhita,
2023 which read as under:
“152. Acts endangering unity and integrity of India.-
Whoever, purposely or knowingly, by words, either spoken or written, or
by signs, or by visible representation or by use of financial mean, or
otherwise, excites or attempts to excite, secession or armed rebellion or
subversive activities, or encourages feelings of separatist activities or
endangers sovereignty or unity and integrity of India; or indulges in or
commits any such act shall be punished with imprisonment for life or with
imprisonment which my extend to seven years, and shall also be liable to
fine.
Explanation.- Comments expressing disapprobation of the measures, or
administrative or other action of the Government with a view to obtain
their alteration by lawful means without exciting or attempting to excite
the activities referred to in this section do not constitute an offence under
this section.
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) xxx
(b) xxx
(c) makes or publishes any assertion, counsel, plea or appeal concerning
the obligation of any class of persons, by reason of their being members
of any religious, racial, language or regional group or caste or
community, and such assertion, counsel, plea or appeal causes or is likely
to cause disharmony or feelings of enmity or hatred or ill-will between
such members and other persons;
or
(d) xxx
shall be punished with imprisonment which may extend to three years, or
with fine, or with both. ”
12.1. Perusal of section 152, ibid, reveals that same is aimed at protecting the unity, sovereignty, and integrity of India. This provision has its genesis to section 124A (sedition) of repealed IPC. Offence of Sedition was originally introduced in year 1870 (after 10 years of enactment of IOC in 1860) by the British Government for punishing the acts of hatred or contempt or disaffection towards Her Majesty or the Crown. The offence of sedition under section 124-A of IPC has though been done away in the BNS, but a new provision in section 152, somewhat similarly worded, has been brought in by the law makers in Parliament. It criminalizes acts or attempts that incite secession, armed rebellion, or subversive activities, or encourage separatist sentiments that threaten the country’s stability. Prima facie, it is appears to be rather reintroducing section 124-A (sedition) by another name. It is rather debatable as to which of two provisions i.e. the one repealed (sedition) or the one reintroduced is more stringent. Pertinently, punishment under section 124-A of IPC was either imprisonment for life or upto three years in prison to which fine could also be added. Whereas, punishment under section 152 of BNS is either imprisonment for life or upto seven years in prison and shall also have the mandatory liability of fine. Be that as it may, both the provisions are worded stringently, and I am thus of the mind that a high threshold of intent (mens rea), ensuring that only deliberate actions with malicious intent would fall under its ambit. Thus the provision (section 152 of BNS) has to be read and meant and interpreted in a way that it mandatorily requires that the act must be committed purposely or knowingly i.e. Mens Rea (Intent). Alleged acts which are covered within the ambit of the section are use of words (spoken or written) and/or signs or visible representation and/or financial means or any other methods and/or encouragement of secession, rebellion, or subversive activities and/or acts that directly or indirectly endanger India's sovereignty, unity, or integrity. The provision thus seeks to maintain national integrity and prevent destabilization. Given India's diversity and history of secessionist movements, the legislature aims to curb acts that could fragment the country.
12.2. Appositely, explanation Clause to section 152 provides the requisite safeguard by exempting that lawful criticism of government policies, aimed at reform or alteration through lawful means, does not fall under the ambit of the section. The explanation protects individuals expressing disapproval of government policies as long as their criticism does not incite rebellion or separatism. This distinction has been carved out for preserving lawful dissent and democratic freedoms, particularly the freedom of speech and expression. Explanatory provision thus provides the balancing Act. It balances national security with individual rights, ensuring that lawful political dissent is not stifled under the pretext of maintaining sovereignty.
12.3. In this context, reference may be had to Supreme Court
judgments, rightly cited by learned senior counsel for the petitioner,
which are as below :- Balwant Singh &Anr. Vs. State of Punjab
“A plain reading of the above Section would show that its application
would be attracted only when the accused brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India, by words either written or spoken or visible signs or representations etc. Keeping in view the prosecution evidence that the slogans as noticed above were raised a couple of times only by the appellant and that neither the slogans evoked a response from any other person of the Sikh community or reaction from people of other
communities, we find it difficult to hold that upon the raising of such
casual slogans, a couple of times without any other act whatsoever the
charge of sedition can be founded. It is not the prosecution case that the
appellants were either leading a procession or were otherwise raising the
slogans with the intention to incite people to create disorder or that the
slogans in fact created any law and order problem. It does not appear to
us that the police should have attached much significance to the casual
slogans raised by two appellants, a couple of times and read to much into
them. The prosecution has admitted that no disturbance, whatsoever, was
caused by the raising of the slogans by the appellants and that inspite of
the fact that the appellants raised the slogans a couple of times, the people,
in general, were un-affected and carried on with their normal activities.
The casual raising of the Slogans, once or twice by two individuals alone
cannot be said to be aimed at exciting or attempt to excite hatred or
disaffection towards the Government as established by law in India,
Section 124A IPC, would in the facts and circumstances of the case have
no application whatsoever and would not be attracted to the facts and
circumstances of the case.
9. In so far as the offence under Section 153A IPC is concerned, it
provides for punishment for promoting enmity between different groups on
grounds of religion, race, place of birth, residence, language, caste or
community or any other ground whatsoever or brings about disharmony or
feeling of hatred or ill-will between different religious, racial, language or
regional groups or castes or communities. In our opinion only where the
written or spoken words have the tendency or intention of creating public
disorder or disturbance of law and order or effect public tranquility, that
the law needs to step in to prevent such an activity. The facts and
circumstances of this case unmistakably show that there was no
[2024:RJ-JD:34845] (19 of 32) [CRLMP-5005/2024]
disturbance or semblance of disturbance of law and order or of public
order or peace and tranquility in the area from where the appellants were
apprehended while raising slogans on account of the activities of the
appellants. The intention to cause disorder or incite people to violence is
the sine qua non of the offence under Section 153 A IPC and the
prosecution has to prove the existence of mens rea in order to succeed. In
this case, the prosecution has not been able to establish any mens rea on
the part of the appellants, as envisaged by the provisions of Section 153A
IPC, by their raising causally the three slogans a couple of times. The
offence under Section 153A IPC is, therefore, not made out.”
Javed Ahmad Hajam Vs. State of Maharashtra &Anr. Supreme Court
“As held by Vivian Bose, J, the effect of the words used by the
appellant on his WhatsApp status will have to be judged from the
standards of reasonable women and men. We cannot apply the standards
of people with weak and vacillating minds. Our country has been a
democratic republic for more than 75 years. The people of our country
know the importance of democratic values. Therefore, it is not possible to
conclude that the words will promote disharmony or feelings of enmity,
hatred or ill-will between different religious groups. The test to be applied
is not the effect of the words on some individuals with weak minds or who
see a danger in every hostile point of view. The test is of the general impact
of the utterances on reasonable people who are significant in numbers.
Merely because a few individuals may develop hatred or ill will, it will not
be sufficient to attract clause (a) of sub-section (1) of Section 153-A of the
IPC.”
Kedar Nath Singh Vs. State of Bihar:
“26.(2). It is well settled that if certain provisions of law construed
in one way would make them consistent with the Constitution, and another
interpretation would render them unconstitutional, the Court would lean in
favour of the former construction. The provisions of the sections read as a
whole along with the explanations, make it reasonably clear that the
sections aim at rendering penal only such activities as would be intended,
or have a tendency, to create disorder or disturbance of public peace by
resort to violence. As already pointed out, the explanations appended to
the main body of the section make it clear that criticism of public measures
or comment on Government action, however strongly worded, would be
within reasonable limits and would be consistent with the fundamental
right of freedom of speech and expression. It is only when the words,
written or spoken, etc. which have the pernicious tendency or intention of
creating public disorder or disturbance of law an order that the law steps
in to prevent such activities in the interest of public order, so construed,
the section, in our opinion, strikes the correct balance between individual
fundamental rights and the interest of public order. It is also well settled
that in interpreting an enactment the Court should have regard not merely
to the literal meaning of the words used, but also take into consideration
the antecedent history of the legislation its purpose and the mischief it
seeks to suppress vide (1) Bengal Immunity Co. Ltd. v State of Bihar, 1955-
2 SCR 603 and (2) R. M. D. Chamarbaugwala v. Union of India, 1957 SCR
930 . Viewed in that light, we have no hesitation in so construing the
provisions of the sections impugned in these cases as to limit their
application to acts involving intention or tendency to create disorder, or
disturbance of law and order, or incitement to violence.”
(emphasis supplied)
12.4. To sum up, laws restricting speech must be narrowly tailored. There must be a direct and imminent connection between the speech and the likelihood of rebellion or secession to invoke such provisions. Legitimate dissent or criticism cannot be equated with sedition or antinational acts. For instance, in cases involving Section 124A (sedition) of the repealed IPC, casual or rhetorical statements did not amount to sedition, unless, of course, they incite violence or public disorder. To my mind, a similar approach would apply to Section 152. Its broad phrasing necessitates careful application to prevent misuse or overreach. The provision must be interpreted in conjunction with the constitutional rights to free speech and expression to ensure it does not infringe on democratic freedoms. One must stay mindful that the provision is used as a shield for national security and not a sword against legitimate dissent.
13. Moving on now to the other penal section which has been invoked
in the FIR i.e. Section 197 of BNS (corresponding with section 153-B of
IPC). Said section is a legislative measure aimed at preserving the
harmony and cohesion of India's diverse society by criminalizing acts
that foster enmity, hatred, or disharmony among different groups. This
provision serves as a vital safeguard against divisive and inflammatory
expressions that could undermine national integration. The section
targets acts done through words (spoken or written), signs, visible
representations, electronic communication, or any other means. This
wide ambit reflects the need to address modern communication
channels such as social media. Subclause (c) thereof prohibits
assertions, pleas, appeals, or counsel concerning the obligations of
individuals based on their membership in a particular religious, racial,
linguistic, regional, caste, or community group, if these acts cause or
are likely to cause disharmony, enmity, hatred, or ill-will.
[2024:RJ-JD:34845] (21 of 32) [CRLMP-5005/2024]
13.1. The intent (Mens Rea)or likelihood of causing disharmony is
central to invoking this provision. If the offending act need does not
result in actual disharmony; the mere likelihood of such an outcome is
may not be sufficient to establish Mens Rea, in the absence of any other
material. The offensive statements urging members of one religious
community to boycott another group based on religious differences
must impact on Society so as to spark violence, perpetuate stereotypes,
and create deep-seated mistrust among communities, leading to longterm societal fragmentation. Strict interpretation thereof has to be
adopted, else the law (both section 152 and 197 of BNS) would be
fraught with danger of being misapplied to stifle legitimate expressions
of dissent or critical opinions, especially in sensitive issues like caste or
regional disparities. The provision must be balanced against the
constitutional right to freedom of speech and expression under Article
19(1)(a).Speech that is critical but does not incite violence or hatred
should not fall under the ambit of this section.
13.2. Thus there has to be a direct nexus between the impugned act
and the likelihood of causing disharmony or hatred. A distinction must
be drawn between genuine grievances expressed in good faith and
malicious intent to provoke enmity or hatred. For instance, in cases
under Section 153A of the IPC (similar in nature), mere expression of
unpopular or controversial views does not constitute an offense unless
there is a clear intent or likelihood of inciting communal hatred. In
modern day times where speech in the digital era is the norm, rise of
social media has made such provisions more relevant as platforms are
often used to spread divisive content rapidly and widely. The law needs
to adapt to tackle anonymous or pseudonymous hate speech effectively.
Enforcement authorities must exercise restraint and discretion to avoid
stifling constructive dialogue or political dissent. Thus, application of
[2024:RJ-JD:34845] (22 of 32) [CRLMP-5005/2024]
sections 152 and 197 must be judicious to avoid infringing on free
speech and prevent misuse. Proper judicial oversight and clear
guidelines on interpreting terms like "disharmony" and "ill-will" are
essential to ensure the law achieves its intended purpose without
becoming a tool for oppression or suppression of dissent.
13.3. In the light of aforesaid position of law, let us now advert to the
specifics of the case in hand. In course of arguments, learned counsel
also had brought the uploaded audio video recording dated 05.07.2024
of the petitioner in a pen drive which was played in the Courtroom. The
same is in Vernacular (Punjabi). It would also be apposite to have
transliteration (in English script) and also the English version of the
Vernacular audio-video recording dated 05.07.2024, which are as
under:
TRANSLITERATION OF VERNACULAR AVR :
“Parliament de vich Hindu Rasthriya da nara vajiya te bhajpa waleya ne
tadiya mark ke mej thap-thapa ke ise gal da swagat kitta. Ajj aa giya bhai
Amritpal Singh, sarkar diyan cheekan nikalgiya Om Birla ne ek din pehlan
byan jari karta ke nawa amendment kiti gayi haike koi v banda hun sonh
chakkan to baad koi nara ni maruga. Pata siga ke aagya patandar jeda
Parliament de hik te chadhke Khalistan da nara maruga. Tuhanu pehlan
kehasiga ke desh kise de piyo da niga, har bande nu jawab dena aunda
hai. Ajj jis tara sarkar diyan cheekan nikalian, pani cho kaddi macchi
wangu jis taran sarkar tadfi, jehde nare marde si, jehde damgaje marde
sige, ajj labhe ni Parliament Ch. Kis taran Amritpal di sonh jhukaun di
rasam nibhayi gayi, fotuaan video takht te paun di layi gayi, eh khauf hai
khalse da, eh khauf hai Dashmesh di Kaum da, te khauf hona chahida hai.
Sarkar nu pata lagna chahidahai, ke jehdi kaumna tusi panga len dye ho,
eh Dashmesh di Kaum hai, eh 21 di 31 bhaji moud di hai. Ajj de ghatna
karam ne jo wapriya Parliament ch, oh ne sabit karta ki wakiya eh Sheran
di Kaum hai, te Sheran di Kaum de muhre, Gidad Kalolan ni kar sakde,
khauf ch rehnge, te khauf ch rehna chahida v hai.”
ENGLISH TRANSLATION OF THE TRANSCRIPT OF THE
ALLEGED VIDEO
The slogan of Hindu Rashtra was raised inside the Parliament and BJP
people welcomed this by clapping and thumping the tables. Today, brother
Amritpal Singh has come and the government is bawling. Om Birla had
issued a statement a day before that no person will raise any slogans after
taking the oath. They knew that a mischievous person has come, who will
go to the gallery of Parliament and raise slogans of Khalistan.I had told
[2024:RJ-JD:34845] (23 of 32) [CRLMP-5005/2024]
you earlier that the country does not belong to anyone's father, every
person knows how to answer. Today the way the government screamed is
like a fish taken out from the water. The slogans that the government used
to raise earlier were not found in the Parliament today. The manner in
which the swearing ceremony of Amritpal Singh was performed that
even the photos and videos of the same were prohibited shows that this is
the fear of Khalsa, this is the fear of Dashmesh community and this fear
should be there. The governments should know that the community with
which you are messing is of Dashmesh. This is a community that returned
31 of 21. Today's event that happened in the Parliament has proved that
this is a community of lions and jackals cannot do mischief in front of
lions and that they will live in fear and should also remain in fear.
14. Learned Public Prosecutor and the learned counsel for the
complainant have relied upon the contents of the AVR, particularly the
following utterances in the petitioner’s AVR dated 05.07.2024 and
contended that the same disclose the commission of offences under
sections 152 and 197(1) of the BNS.
“They knew that a mischievous person has come, who will go to the
gallery of Parliament and raise slogans of Khalistan.
xxx xxxx xxx
I had told you earlier that the country does not belong to anyone's father,
every person knows how to answer.
xxx xxx
The manner in which the swearing ceremony of Amritpal Singh was
performed that even the photos and videos of the same were prohibited
shows that this is the fear of Khalsa, this is the fear of Dashmesh
community and this fear should be there.
(emphasis supplied)
xxx xxx xxx
The governments should know that the community with which you are
messing is of Dashmesh. This is a community that returns 31 rupees for 21
rupees. Today's event that happened in the Parliament has proved that this
is a community of lions and jackals cannot do mischief in front of lions
and that they will live in fear and should also remain in fear.”
15. Before dealing with the above, first let us analyse the merits of the
argument of learned PP that the petitioner was non-cooperative with
investigation by not giving his mobile phone and sharing his user name
and password of facebook. However, in course of hearing, learned
Public Prosecutor has stated that pursuant to an order dated
09.10.2024 passed by this court, the petitioner provided his mobile
phone, user ID and password of the WhatsApp and Facebook accounts
[2024:RJ-JD:34845] (24 of 32) [CRLMP-5005/2024]
but some of its data has been found deleted. Order dated 09.10.2024
being relevant is reproduced here in under :-
1. Pursuant to previous Court order dated 22.08.2024, on resumed
hearing today, learned Public Prosecutor submits that even though the
petitioner has joined the investigation, but he is not cooperating with the
Investigating Officer. In as much as, despite being directed by the
Investigating Officer to hand over his mobile phone to examine its
contents, he has not provided the same.
2. Mr. Vikas Balia, Senior Counsel appearing on behalf of the
petitioner, under instructions, submits that the petitioner has not objected
to handing over his mobile phone at any stage, but since a corresponding
receipt of its seizure was not being issued by the Investigating Officer, he
did not give his mobile to him.
3. Apropos, learned Public Prosecutor submits that the Investigating
Officer shall issue him a receipt by noting its International Mobile
Equipment Identity (IMEI) number of the mobile phone therein, and the
same would be returned to him after carrying out the necessary
investigation.
4. It appears that the mobile phone is required to access the
petitioner’s WhatsApp and Facebook accounts, which as per the FIR
allegations, are said to have been used by him to upload his video
graphed public statement under investigation. Since the petitioner has
already volunteered to surrender the mobile phone, he shall do the
needful.
5. Though this Court is of the view that, for accessing WhatsApp as
well as Facebook accounts of the petitioner, the Investigating Officer
does not require physical possession of the mobile phone, as both
accounts can be accessed through any platform as long as the user ID
and passwords are provided.
6. Be that as it may, the petitioner is also directed to give his user ID
and password of the WhatsApp and Facebook accounts, so as to enable
the Investigating Officer to look into the same. Let a report be filed on or
before the next date of hearing.
7. Post it on 18.10.2024.
8. Meanwhile, subject to the compliance, as above, no coercive steps
shall be taken against the petitioner qua the FIR in question.
Sd/-
(Arun Monga), J.”
16. Apropos, it transpires that mobile phone was given by the
petitioner to the investigation team. At this stage, I may hasten to
opine that with aforesaid inputs already provided by the petitioner, the
police itself could/can get the deleted mata data retrieved from the
concerned service provider and/or cyber experts. In any case,
petitioner has a right to remain silent under Article 21 of the
Constitution of India and cannot be held guilty for not thus rendering
co-operation.
[2024:RJ-JD:34845] (25 of 32) [CRLMP-5005/2024]
17. Be that as it may, even after having got the mobile phone of the
petitioner, nothing has been placed on record or relied in course of the
arguments to establish any mens rea or otherwise being incriminating
discovered from the Facebook account or the WhatsApp account of the
petitioner. It is not even claimed that the data deleted from the
petitioner’s mobile phone contains any specific incriminating material
against him. In the absence of any pointer/indication at all that the
data deleted from the petitioner’s mobile phone contains any specific
incriminating material against him, in my opinion, it would be sheer wild
guess to say whether or not the same, if/when retrieved, would yield
any incriminating material against him. It would, therefore, be unfair to
the petitioner if he is made to suffer by further prolongation of the
police investigation, simply to enable the police to carry out a rowing
and fishing exercise in an effort to find something in the deleted data,
which might turn out to be incriminating against the petitioner.
18. Pertinently, it needs to be noted that the complainant admits that
he had lodged the FIR No. 290/2022 at PS Padampur, district
Sriganganagar against the petitioner and others with the allegations
that the petitioner along with others had taken away Shri Guru Granth
Sahib from Gurudwara and deposited the same with Damdama Sahib;
that one Jagseer Singh had also lodged FIR No. 222/2020 under Section
295, 295-A, 499 & 500 IPC against the petitioner at Police Station
Kotwali, Sriganganagar; that in another FIR No. 88/16 under Section 3
of Prevention of Damage to Public Property Act and Section 245 of
Rajasthan Municipality Act against the petitioner, the matter pertains to
the illegal encroachment made by the petitioner in Gurudwara Baba
Deep Singh, Srigangangar and that in all those FIRs, the police has filed
the negative final reports in the Courts.
[2024:RJ-JD:34845] (26 of 32) [CRLMP-5005/2024]
18.1. No doubt it is submitted that the protest petitions against those
negative final reports have also been filed which are pending.
18.2. Nonetheless, the fact remains that except one, the remaining
aforesaid FIRs against the petitioner had been lodged by respondent
No. 2 (the complainant in the instant case). Mere filing and pendency of
the protest petitions does not also negate the reality that the police
have already filed negative final reports in those FIRs registered against
the petitioner. A reasonable possibility of the instant impugned FIR
being actuated by complainant’s motive and malice against the
petitioner cannot, therefore, be ruled out. This being the state of affairs,
the contents of the impugned FIR need more than ordinary standard of
scrutiny.
18.3. Moreover, qua antecedents of petitioner, which has been primary
ground of attack by prosecution and complainant, reference may be had
to Supreme court judgement in Mohammad Wajid, supra. Relevant part
thereof is reproduced hereinbelow:-
“The learned Additional Advocate General appearing for the State
in her written submissions has furnished details in regard to the
antecedents of the appellants. A bare look at the chart may give an
impression that the appellants are history sheeters and hardened
criminals. However, when it comes to quashing of the FIR or criminal
proceedings, the criminal antecedents of the accused cannot be the sole
consideration to decline to quash the criminal proceedings. An accused
has a legitimate right to say before the Court that howsoever bad his
antecedents may be, still if the FIR fails to disclose commission of any
offence or his case falls within one of the parameters as laid down by this
Court in the case of Bhajan Lal (supra), then the Court should not decline
to quash the criminal case only on the ground that the accused is a history
sheeter. Initiation of prosecution has adverse and harsh consequences for
the persons named as accused.”
19. Aside all above, having read the contents of and heard the AVR
dated 05.07.2024 ascribed to the petitioner in the light of the aforesaid
factual background of series of other FIRs lodged by the complainant
against the petitioner, I am of the opinion that the same do not attract
[2024:RJ-JD:34845] (27 of 32) [CRLMP-5005/2024]
the applicability either of section 152 or of section 197(1) of the BNS
against the petitioner.
20. Let us now analyze the alleged offending statements which are
purportedly the cause of invoking the penal sections, ibid. The part of
the petitioner’s statement that “a mischievous person has come, who will go to the
gallery of Parliament and raise slogans of Khalistan” only refers to the likelihood
that another person (Amritpal Singh MP) would go the gallery of
Parliament and raise slogans of Khalistan. By no stretch of imagination
can it be said that thereby the petitioner meant to convey that he
(Tejinderpal Singh Timma petitioner herein) himself would raise slogans
of Khalistan or purposely or knowingly excite or attempt to excite,
secession or armed rebellion or subversive activities, or encouraged
feelings of separatist activities or endanger the sovereignty or unity and
integrity of India; or indulge in or commit any such act.
21. The next part of petitioner’s statement that “I had told you earlier that
the country does not belong to anyone's father, every person knows how to answer”only
means and conveys that the country belongs all it’s citizen, conversely
all it’s citizens belong to the country and that there is equality of all
citizens. Colloquial Punjabi, with its rich and expressive nature, can
invariably come across as offensive, even when no malice or intent to
offend is present. This characteristic stems from the inherent directness
and vigor of the language, which may sometimes be misunderstood.
However, for such expressions to be deemed criminal, there must be
demonstrable public repercussions or substantive evidence indicating
deliberate malicious intent (mens rea) to commit any public unrest or
incite violence. Merely perceiving a statement as offensive is insufficient
without a broader context or tangible harm to substantiate the claim.
[2024:RJ-JD:34845] (28 of 32) [CRLMP-5005/2024]
22. The petitioner’s further statement that “the manner in which the
swearing ceremony of Amritpal Singh was performed that even the photos and videos of
the same were prohibited shows that this is the fear of Khalsa, this is the fear of Dashmesh
community and this fear should be there” shows that thereby the petitioner was
only commenting upon and expressing disapprobation of the measures,
or administrative or other action of the Government with a view to
obtain their alteration by lawful means but without exciting or
attempting to excite the activities referred to in this section.
23. The petitioner’s next statement is that “the governments should know
that the community with which you are messing is of Dashmesh. This is a community that
returns 31 rupees for 21 rupees. Today's event that happened in the Parliament has proved
that this is a community of lions and jackals cannot do mischief in front of lions and that
they will live in fear and should also remain in fear.” It seems only to convey his
admiration for the bravery, valour and large heartedness of the
followers of the tenth Sikh Guru Gobind Singh (Dashmesh).
24. In my view, the contents of the AVR dated 05.07.2024 taken as a
whole do not attract the applicability of section 152 of the BNS, 2023
which came into force from 01.04.2024. The same do not amount to
purposely or knowingly, exciting or even an attempt to excite secession
or armed rebellion or subversive activities, or encourage feelings of
separatist activities or endanger sovereignty or unity and integrity of
India; or indulging in or committing of any such act. To my mind, they
are not more than comments expressing disapprobation of the
measures, or administrative or other action of the Government with a
view to obtain their alteration by lawful means without exciting or
attempting to excite the activities referred to in the explanation below
the section ibid and which comments have been specifically excepted
from it’s applicability.
[2024:RJ-JD:34845] (29 of 32) [CRLMP-5005/2024]
25. I am of also the opinion that the contents of the AVR dated
05.07.2024, taken in totality, do not attract the applicability of section
197(1) of the BNS as the same do not contain any imputation that any
class of persons by reason of their being members of any religion,
racial, language or regional group or caste or community, cannot bear
true faith and allegiance to the Constitution of India or uphold the
sovereignty and integrity of India; OR any assertion, counsel, advice,
propagation or publication that any class of persons shall, by reason of
their being members of any religion, racial, language or regional group
or caste or community be denied or deprived of their rights as citizens
of India; OR any assertion or counsel, plea or appeal concerning the
obligation of any class of persons, by reason of their being members of
any religion, racial, language or regional group or caste or community
and such assertion or counsel, plea or appeal, causes or is likely to
cause disharmony or feelings of enmity or hatred or ill-will between
such members and other persons; OR false and misleading information,
jeopardizing the sovereignty, unity and integrity or security of India.
26. All other AVRs (video Nos.1 to 16) referred by the learned counsel
for complainant were prepared and published long before 01.07.2024
i.e. prior to the coming into force of the BNS, 2023. The alleged criminal
acts thereby committed were before 01.07.2024. They have also been
included in the instant impugned FIR No.239/2024 registered on
06.07.2024. In my opinion, the substantive penal provisions of the BNS,
2023 [in this case section 152 and sections 197(1) of the Bhartiya
Nyaya Sanhita, 2023] cannot be retrospectively invoked against the
petitioner for the so-called criminal acts done or committed before
01.07.2024, the date of it’s coming into force.
[2024:RJ-JD:34845] (30 of 32) [CRLMP-5005/2024]
27. In Vijay Sharma vs. State19
, a judgement authored by me, I
have held, inter alia, that qua the offences committed before
01.07.2024 under the Indian Penal Code (IPC),an FIR cannot be
registered under (BNS) after enforcement of Bhartiya Nyaya Sanhita
(BNS) from 01.07.2024. Reproduce:-
“7. For dealing with and adjudicating the rival contentions, the
following questions of law need consideration and adjudication:
(a). Whether or not after enforcement of Bhartiya Nyaya
Sanhita from 01.07.2024, an FIR can be registered under
IPC for offences committed under the Indian Penal Code
(IPC) before 01.07.2024?
(b). Whether or not qua offences committed before
01.07.2024 under the Indian Penal Code (IPC), an FIR
can be registered under (BNS) after enforcement of
Bhartiya Nyaya Sanhita (BNS) from 01.07.2024?
(c). Which procedure would apply to an FIR registered
after enforcement of Bhartiya Nagrik Suraksha Sanhita
(BNSS) for offences under IPC committed before
01.07.2024?
8. to 11. xxx xxxx xxx
12. In my opinion, a combined reading of Article 20 of the
Constitution of India and aforesaid saving provisions of section 358 of the
BNS amply show that the IPC shall apply to any obligation, liability,
penalty or punishment accrued or incurred before 01.07.2024. In other
words, in respect of the offences committed under the Indian Penal Code
(IPC) before 01.07.2024, the offender can/has to be dealt with and
punished under IPC even after enforcement of Bhartiya Nyaya Sanhita
from 01.07.2024. Thus, it seems that for the offences committed under the
Indian Penal Code (IPC) before 01.07.2024, FIR has to be registered
under the IPC.
13. In this context, a Division Bench Judgment of Allahabad High
Court in case of Deepu&Ors. Vs. State of Uttar Pradesh &Ors.20 has held
as under:
“16. On the basis of above analysis, this Court is also
summarising the law regarding effect of repealing the IPC
and Cr.P.C. by BNS and BNSS respectively and same is
being mentioned as below:
(i). If an FIR is registered on or after 1.7.2024 for the
offence committed prior to 1.7.2024, then FIR would be
registered under the provisions of IPC but the investigation
will continue as per BNSS.
(ii) In the pending investigation on 01.07.2024 (on the
date of commencement of New Criminal Laws),
investigation will continue as per the Cr.P.C. till the
cognizance is taken on the police report and if any direction
192024 SCC Online Raj. 2897 and 2024:RJ-JD:35171
202024 SCC Online All 4289 :(2024), 129ACC127 and 2024 : AHC : 126843-DB
[2024:RJ-JD:34845] (31 of 32) [CRLMP-5005/2024]
is made for further investigation by the competent Court
then same will continue as per the Cr.P.C.;
(iii) The cognizance on the pending investigation on or
after 01.07.2024 would be taken as per the BNSS and all the
subsequent proceeding including enquiry, trial or appeal
would be conducted as per the procedure of BNSS.
(iv) Section 531(2)(a) of BNSS saved only pending
investigation, trial, appeal, application and enquiry,
therefore, if any trial, appeal, revision or application is
commenced after 01.07.2024, the same will be proceeded as
per the procedure of BNSS.
(v) The pending trial on 01.07.2024, if concluded on or
after 01.07.2024 then appeal or revision against the
judgement passed in such a trial will be as per the BNSS.
However, if any application is filed in appeal, which was
pending on 01.07.2024 then the procedure of Cr.P.C. will
apply.
(vi) If the criminal proceeding or chargesheet is
challenged before the High Court on or after 01.07.2024,
where the investigation was conducted as per Cr.P.C. then
same will be filed u/s 528 of BNSS not u/s 482 Cr.P.C.”
14. to 17. xxx xxxx xxx
18. Accordingly, question (a) framed above is answered in the
affirmative. As a corollary thereto, it is held that qua the offences
committed before 01.07.2024 under the Indian Penal Code (IPC), an FIR
cannot be registered under (BNS) after enforcement of Bhartiya Nyaya
Sanhita (BNS) from 01.07.2024. Question (b) is, therefore, answered in
the negative.
xxx xxxx xxx”
28. As noted above in present case, except the AVR dated
05.07.2024, the remaining AVRs were prepared and published before
01.07.2024. Offences, if any, thereby committed had been committed
before 01.07.2024, to which the provisions of IPC would apply. In that
view of the matter, it was impermissible to register the impugned FIR
dated 06.07.2024 under the provisions of the BNS, 2023 for the
offences, if any, under the IPC which were committed before
01.07.2024. It follows, therefore, that to the extent to the impugned
FIR dated 06.07.2024 registered under the provisions of the BNS, 2023
is based on and relates to alleged criminal acts and offences, if any,
committed under the IPC by preparing and publishing the AVRs before
01.07.2024, is liable to be quashed.
29. It seems neither necessary nor appropriate, therefore, to enter
into any further discussion about the alleged criminal acts committed by
preparing uploading the AVRs prior to 01.04.2024
30. As a result of the aforesaid discussion, I am of the opinion that
the continuance of the impugned FIR and the consequential proceedings
against the petitioner amounts to abuse of process of law, cause undue
harassment and humiliation to the petitioner and that it is a fit case, in
order to secure the ends of justice, to quash the impugned FIR and the
consequential proceedings against the petitioner.
31. Accordingly, the petition is allowed and impugned F.I.R.
No.0239/2024 dated 06.07.2024 lodged at Police Station Purani Abadi,
District Ganganagar and all consequential proceedings for offences
under Sections 152 and 197(1)(c) of the Bhartiya Nyaya Sanhita, 2023
against the petitioner are quashed.
32. Pending applications, if any, also stand disposed of.
(ARUN MONGA),J
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