Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
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At this stage, we may refer to Clause (a) of Article 51-A of the Constitution, which reads thus:
"51-A. Fundamental duties.-It shall be the duty of every citizen of India-
(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
The police officers must abide by the Constitution and respect its ideals. The philosophy of the Constitution and its ideals can be found in the preamble itself. The preamble lays down that the people of India have solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic and to secure all its citizens liberty of thought, expression, belief, faith and worship. Therefore, liberty of thoughts and expression is one of the ideals of our Constitution. Article 19(1)(a) confers a fundamental right on all citizens to freedom of speech and expression. The police machinery is a part of the State within the meaning of Article 12 of the Constitution. Moreover, the police officers being citizens, are bound to abide by the Constitution. They are bound to honour and uphold freedom of speech and expression conferred on all citizens. Clause (2) of Article 19 of the Constitution carves out an exception to the fundamental right guaranteed under sub- Clause (a) of Clause (1) of Article 19. If there is a law covered by Clause (2), its operation remains unaffected by sub- Clause (a) of Clause (1). We must remember that laws covered by the Clause (2) are protected by way of an exception provided they impose a reasonable restriction. Article 19(2) is an exception to the freedom enumerated Under Article 19(1)(a). The reasonable restrictions provided for in Article 19(2) must remain reasonable and not fanciful and oppressive. Article 19(2) cannot be allowed to overshadow the substantive rights Under Article 19(1), including the right to freedom of speech and expression. Therefore, when an allegation is of the commission of an offence covered by the law referred to in Clause (2) of Article 19, if Sub-section (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the Accused. This will ensure that the fundamental rights guaranteed under Sub-clause (a) of Clause (1) of Article 19 remain protected. Therefore, in such cases, the higher police officer referred to in Sub-section (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry. Therefore, when the commission of cognizable offences is alleged, where punishment is for imprisonment up to 7 years, which is based on spoken or written words, it will always be appropriate to exercise the option Under Sub-section (3) of Section 173 and conduct a preliminary inquiry to ascertain whether there exists a prima facie case to proceed. If an option Under Sub-section (3) is not exercised by the police officer in such a case, he may end up registering an FIR against a person who has exercised his fundamental right Under Article 19(1)(a) even though Clause (2) of Article 19 is not attracted. If, in such cases, the option Under Sub-section (3) of Section 173 is not exercised, it will defeat the very object of incorporating Sub-section (3) of Section 173 of the BNSS and will also defeat the obligation of the police Under Article 51-A(a). {Para 29}
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 1545 of 2025
Decided On: 28.03.2025
Imran Pratapgadhi Vs. State of Gujarat and Ors.
Hon'ble Judges/Coram:
Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.
Author: Abhay Shreeniwas Oka, J.
Citation: MANU/SC/0408/2025,2025 INSC 410.
