Imran Pratapgarhi v. State of Gujarat: Can an FIR Be Filed Over a Social Media Post? Supreme Court Explains Section 173(3) BNSS

Can an FIR Be Filed Over a Social Media Post? Supreme Court Explains Section 173(3) BNSS

Case: Citation: 2025  (SC) 362 | 2025 INSC 410

 Case No.: Special Leave Petition (Criminal)

Decided: 28 March 2025

 Bench: Justice Abhay S. Oka and Justice Ujjal Bhuyan

Introduction

Can police register an FIR against someone simply for posting a poem on Instagram?

The Supreme Court answered this in Imran Pratapgarhi v. State of Gujarat. The Court quashed an FIR filed by the Gujarat Police against a sitting Member of Parliament over a social media video post. More importantly, it explained exactly when police can and cannot file an FIR for speech-related offences under the new criminal law framework.

This judgment is one of the most important cases under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. It clarifies the role of Section 173(3) BNSS and its relationship with free speech under Article 19(1)(a). 

Background: What Led to the FIR?

Imran Pratapgarhi is a Congress MP and a well-known poet. He posted a video on Instagram that featured a poem titled "Ae khoon ke pyase baat suno" playing in the background.

The Gujarat Police registered an FIR alleging that the post violated Section 196 of the Bharatiya Nyaya Sanhita (BNS), 2023, which deals with promoting enmity between different groups on grounds of religion, race, language, or region. The police claimed the post had the potential to create communal disharmony.

Pratapgarhi first challenged the FIR before the Gujarat High Court under Section 528 BNSS. The High Court refused to intervene. He then approached the Supreme Court.

Understanding the Legal Framework: Old Law vs. New Law

Before this judgment can be understood, it is important to know how the law on FIR registration changed between the CrPC and the BNSS.

Under Section 154 CrPC (Old Law)

Under the Code of Criminal Procedure, 1973, the rule was straightforward. If information given to the police disclosed a cognizable offence, the police were under a mandatory obligation to register an FIR. This was firmly established by the Constitution Bench in Lalita Kumari v. Government of Uttar Pradesh (2014).

There was no discretion. Once a cognizable offence was disclosed, an FIR had to be registered immediately.

Under Section 173 BNSS (New Law)

The Bharatiya Nagarik Suraksha Sanhita, 2023, which came into force on 1 July 2024, introduced a structured change.

Section 173(1) BNSS is the general rule. It provides that when information relating to the commission of a cognizable offence is given to the police, the officer in charge must reduce it to writing, get it signed by the informant, and register it. A copy must be given to the informant free of cost under Section 173(2) BNSS.

But Section 173(3) BNSS is an important exception. It applies to offences that are punishable with imprisonment for three years or more but less than seven years. In such cases, the police officer may, with the prior permission of an officer not below the rank of Deputy Superintendent of Police (DSP), conduct a preliminary inquiry before registering the FIR.

The purpose of this preliminary inquiry is specific. It is to determine whether a prima facie case actually exists, not just whether the complaint uses the language of a cognizable offence.

This is a significant departure from the Lalita Kumari regime. Under the CrPC, the form of the complaint mattered. Under Section 173(3) BNSS, the police are now empowered to look beyond the form to the substance of the allegations.

What the Supreme Court Held

The Supreme Court quashed the FIR on two separate grounds.

Ground 1: The Allegations Did Not Disclose Any Offence

The Court examined the poem itself. It found that the content was a piece of artistic and literary expression. There was nothing in the poem that promoted enmity between communities or incited violence. The ingredients of Section 196 BNS were simply not made out.

The Court observed that when allegations are based on spoken or written words, law enforcement officers must carefully examine the content before deciding whether it amounts to a legally prosecutable offence. Police cannot register FIRs mechanically just because a complaint uses the word "communal" or "enmity."

Ground 2: Section 173(3) BNSS Was Not Invoked

Even if one were to assume that the complaint disclosed a prima facie offence, the Court held that Section 173(3) BNSS should have been invoked before registering the FIR.

The offence under Section 196 BNS attracts a punishment ranging from three to seven years. This brings it squarely within the category of offences that require a preliminary inquiry under Section 173(3) BNSS.

The Court found that the police acted with "unusual expediency" and registered the FIR in a mechanical manner. No preliminary inquiry was conducted. No DSP-level permission was sought. This was a failure to comply with the legislative safeguard built into Section 173(3) BNSS.

Direction on Section 173(3) BNSS in Free Speech Cases

The Court went further and issued a broader direction. It held that in cases involving the exercise of free speech under Article 19(1)(a), where the potential punishment falls within the range of three to seven years, a superior police officer should ordinarily grant permission to conduct a preliminary inquiry under Section 173(3) BNSS.

This is not just a procedural point. The Court treated Section 173(3) BNSS as a constitutional safeguard. It held that neglecting to invoke this provision in speech-related cases would undermine the very purpose for which it was incorporated in the BNSS. It would also violate the police officer's fundamental duty under Article 51-A(a) to uphold the Constitution and respect its ideals.

Key Distinction: Section 154 CrPC vs. Section 173(3) BNSS

The Court drew a clear distinction between the old and new regimes:

Article 19(1)(a) and FIR Registration

A key constitutional thread runs through this judgment. The right to freedom of speech and expression under Article 19(1)(a) can be restricted only on the grounds listed in Article 19(2), and only to a reasonable extent.

Registering FIRs for social media posts without examining the actual content of speech is a form of chilling effect on free expression. The Court used Section 173(3) BNSS as a procedural tool to prevent this chilling effect, without declaring any law unconstitutional.

The Court also said that freedom of expression is integral to a civilised society and is a key component of the right to live with dignity under Article 21. This connects Section 173(3) BNSS directly to two fundamental rights.

Connection to Lalita Kumari

The Lalita Kumari judgment (2014) made FIR registration mandatory. The Court in Pratapgarhi did not overrule Lalita Kumari. What it did was clarify that Lalita Kumari operated under Section 154 CrPC, while Section 173(3) BNSS creates a distinct statutory regime for a specific category of offences.

Section 173(1) BNSS is the general rule, corresponding to Section 154 CrPC. Section 173(3) BNSS is the exception, applicable only to offences in the three to seven year bracket.

Where the exception applies, a preliminary inquiry is not just permitted. The Court suggested it should ordinarily be conducted in speech-related cases, to protect constitutional rights at the very first stage of criminal proceedings.

Key Takeaways From the Judgment

· Case decided: 28 March 2025. Citation: 2025 LiveLaw (SC) 362 | 2025 INSC 410.

· Section 173(1) BNSS is the general rule for FIR registration, replacing Section 154 CrPC.

· Section 173(3) BNSS allows a preliminary inquiry before FIR registration for offences punishable between 3 and 7 years, with prior DSP-level permission.

· Police cannot register FIRs mechanically in speech-related cases without examining the actual content of the expression.

· The FIR was quashed both because the poem did not disclose any offence and because Section 173(3) was not invoked.

· Section 173(3) BNSS is a constitutional safeguard to protect free speech under Article 19(1)(a).

· Section 196 BNS replaces Section 153A IPC for the offence of promoting enmity between communities.

· Section 528 BNSS (replaces Section 482 CrPC) is the provision under which the FIR was challenged.

Conclusion

Imran Pratapgarhi v. State of Gujarat is a landmark ruling in the early BNSS era. It clarifies that Section 173(3) BNSS is not merely a procedural convenience. It is a constitutional safeguard against the misuse of criminal law to silence voices that the powerful find inconvenient.

FAQs

Q1. What is the Imran Pratapgarhi v. State of Gujarat case about? It is a 2025 Supreme Court judgment in which the Court quashed an FIR filed against a Congress MP for posting a poem on Instagram. The Court held that the poem did not promote communal enmity and that the police should have conducted a preliminary inquiry under Section 173(3) BNSS before registering the FIR.

Q2. What is Section 173(3) BNSS and how is it different from Section 154 CrPC? Section 154 CrPC made FIR registration mandatory once a cognizable offence was disclosed. Section 173(3) BNSS creates an exception for offences punishable between 3 and 7 years. In such cases, police may conduct a preliminary inquiry with prior DSP-level permission to determine whether a prima facie case actually exists, before registering the FIR.

Q3. Does this judgment mean police can refuse to register an FIR for social media posts? Not exactly. The judgment means that where a social media post is alleged to constitute an offence punishable between 3 and 7 years (such as Section 196 BNS), police should ordinarily invoke Section 173(3) BNSS and conduct a preliminary inquiry before registering the FIR. The right to register an FIR is not removed, but a procedural filter is now required.

Q4. What is Section 196 BNS and which IPC section does it replace? Section 196 of the Bharatiya Nyaya Sanhita (BNS), 2023 deals with promoting enmity between different groups on grounds of religion, race, language, region, or place of birth. It replaces Section 153A of the Indian Penal Code (IPC), 1860.