It is definitely a matter of great solace to know that none other than the Andhra Pradesh High Court at Amaravati itself in a latest circular – Circular No. 8/2025 dated 05.07.2025 and ROC No.99/SO/2023 has notified with subject titled: “High Court of Andhra Pradesh – Multiple cases registered across different police stations over one social media post/comment for which maximum sentence prescribed is less than seven years — Strict adherence to the principles laid down in “Arnesh Kumar v. State of Bihar and another” by the Magistrates remanding the accused – Certain instructions – Issued.” There is no valid reason for the Magistrates to not comply with what the Andhra Pradesh High Court has directed in this latest circular. It must be most strictly complied in totality. There can be just no denying or disputing it!
It must be mentioned here that the Reference then made in this latest circular mentions that, “Judgment, dated 02.07.2014 in Criminal Appeal No. 1277 of 2014 (Special Leave Petition (Crl.) No. 9127 of 2013) in Arnesh Kumar v. State of Bihar and another.” It is definitely in the fitness of things that the Andhra Pradesh High Court has very rightly ordered judicial magistrates serving in the State to strictly follow the law laid down by the Supreme Court in Arnesh Kumar and so also in Imran Pratapgadhi cases before remanding a person booked for social media posts. It merits just no reiteration that there is certainly no bona fide reason for not complying with such a most commendable direction!
At the very outset, it is pointed out in this circular that, “It has been brought to the notice of the High Court that most of the Judicial Magistrates are remanding the accused in cases pertaining to social media postings/comments without adhering to the principles laid down in Arnesh Kumar v. State of Bihar case.” This is most unfortunate indeed! It is high time and Judicial Magistrates must definitely comply with what has been so very commendably directed by the Andhra Pradesh High Court!
It would be ostensibly instructive to note that while going ahead, it is further stated in this circular that, “In a decision held between Imran Pratap Garhi v. State of Gujarat, (March 28th, 2025) the Hon’ble Supreme Court of India with a aim to prevent misuse of criminal law to stifle free expression, while quashing FIR, held that the police before registering an FIR involving speech, writing or artistic expression (where the offences carry 3-7 years of imprisonment) must conduct a preliminary enquiry under Section 173 (3) of B.N.S.S. that such enquiry shall be preceded by an approval from Deputy Superintendent of Police that such enquiry must be concluded within fourteen (14) days.”
Of course, it must be brought out here that in this leading case of Imran Pratagarhi, we witnessed how the Apex Court Bench comprising of Hon’ble Mr Justice Abhay S Oka and so also Hon’ble Mr Justice Ujjal Bhuyan quashed an FIR that had been filed against Congress MP Imran Pratapgarhi by the Gujarat police concerning a poem that he had posted on social media. We need to also note that this notable judgment initially arose from FIR that had been filed by the Gujarat Police against Congress MP Imran Pratapgarhi over an Instagram post featuring a video clip with the poem “Ae khoon ke pyase baat suno” in the background. The police had alleged that the post violated the provisions of the Bharatiya Nyaya Sanhita (BNS), particularly Section 196, which pertains with promoting enmity between communities.
It is worth noting that in this high profile Pratapgarhi judgment, the Apex Court held most firmly that the allegations did not constitute a cognizable offence under Section 173(1) of the Bharatiya Nyaya Sanhita (BNS), underscoring the paramount importance that is attached with free speech in a democratic society and democratic country like India! Absolutely right! This is where police erred grievously! It is definitely a no-brainer that by mandating a preliminary inquiry, the Apex Court has ensured that legal safeguards are in place to prevent any misuse of any kind of the criminal justice system!
Let us now discuss the Apex Court’s analysis and observations in this leading case most briefly!
Court’s Analysis and Observations
1. Preliminary Inquiry is Mandatory for Offences Punishable Between 3-7 Years
- The Court held that Section 173(3) of the BNSS introduces a major change from Section 154 of the CrPC by allowing for a preliminary inquiry before registering FIR.
- This provision is intended to prevent frivolous FIRs, especially in cases involving speech and expression.
2. Police Must Consider the Context and Impact of Words
- The Court underscored that before registering FIR under Section 196 of the BNS, police must evaluate the actual effect of the speech or expression.
- The mere existence of written or spoken words is not enough; the police must assess whether the content truly incites hatred or violence.
3. No Prima Facie Case Existed Against Imran Pratapgarhi
- The Court found very clearly prima facie that the offences alleged were not made out even without applying Section 173(3) of the BNSS.
- The poem in the video was also not inflammatory in any manner and did not create any communal tension.
- The FIR was quashed as it violated free speech protections under Article 19(1)(a).”
While proceeding ahead, we must also note very clearly that the Andhra Pradesh High Court in its most laudable circular further states most explicitly and directs expressly that, “Therefore, all the Judicial Magistrates are hereby instructed to satisfy themselves before ordering remand, particularly in cases relating to the social media postings/comments that the Investigating Officer complied with the law laid down in ‘Arnesh Kumar’ and ‘Imran Pratap Garhi’ cases that the accused had committed repeated and multiple offences, that the accused, if not ordered to be remanded to judicial custody, may influence the witnesses or tamper evidence that the police require custodial investigation.”
In its concluding part, the Andhra Pradesh High Court in this most commendable, courageous and creditworthy circular very rightly, robustly and rationally concludes by directing most unambiguously that, “All the Judicial Magistrates shall follow the circular instructions, scrupulously, and any deviation in this regard will be viewed very seriously. The Judicial Magistrates who violate the circular would render themselves liable for contempt of the High Court besides facing departmental enquiry.” Very rightly so!
In conclusion, I most strongly feel that it is high time and every High Court in India must definitely emulate what Andhra Pradesh High Court has stated in this most commendable circular as early as possible! This will definitely without fail also ensure that those judicial magistrates who do any deviation on this score will be strictly punished! No doubt, this will also definitely ensure most unequivocally that Judicial Magistrates refrain from remanding people mechanically for social media posts which in turn will palpably ensure that the right to free speech is always protected most zealously and so also the paramount importance that is always attached with free speech in a democratic society and so also democratic country like India is always most zealously protected not just by lip service by political leaders but in reality also on the ground! Only then are we entitled to call ourselves a truly democratic country in the real sense! Of course, there can be definitely just no denying or disputing it!
Sanjeev Sirohi,
