Suleman v. State of Himachal Pradesh (2025 HHC 27866)

Commentary: The High Court Re-defines the Reach of Section 152, Bhartiya Nayay Sanhita, 2023

Introduction

The Himachal Pradesh High Court, through Justice Rakesh Kainthla, delivered a significant order on 19 August 2025 while deciding Cr.M.P.(M) No.1647 of 2025. The petitioner, Suleman, a fruit-cart vendor, sought regular bail after being charged under Section 152 of the newly enacted Bhartiya Nayay Sanhita, 2023 (BNS) for allegedly sharing an AI-generated image of the Prime Minister captioned “Pakistan Zindabad.” The State opposed bail, calling the act “anti-national.” The Court’s ruling—the first reported decision on Section 152 BNS from the Himachal Pradesh High Court—sets down a clear “intent + incitement” benchmark for sedition-type prosecutions, echoing but also extending older Supreme Court jurisprudence under repealed Section 124-A IPC.

Summary of the Judgment

• The Court granted Suleman regular bail on a bond of ₹50,000 with conditions.
• It held that the FIR allegations, even if accepted at face value, did not prima facie disclose the essential ingredients of Section 152 BNS because:
  • There was no averment that the act intended to incite violence or create public disorder.
  • Mere chanting or writing “Pakistan Zindabad,” without more, cannot be equated with sedition.
• Custodial interrogation was deemed unnecessary—the mobile phone was already seized and the charge-sheet filed.
• The bail decision was tethered to Supreme Court guidelines on factors for bail (AJWAR v. WASEEM, Ramratan, Shabeen Ahmed), particularly proportionality and absence of mens rea (criminal intent).

Analysis

3.1 Precedents Cited and Their Influence

1. AJWAR v. WASEEM (2024) 10 SCC 768 – Re-enumerated bail factors: gravity, role, antecedents, tampering possibility, etc. Justice Kainthla quoted para 26 to structure his discretion.
2. Ramratan v. State of M.P. (2024 SCC OnLine SC 3068) – Emphasised proportional and rational bail conditions; Court lifted “any condition” language from this ruling to craft the five bail conditions imposed.
3. Vinod Dua v. Union of India (2023) 14 SCC 286 – A seminal rebuke of broad sedition prosecutions. The HC relied on para 45.5 to narrow Section 152 BNS to speech that incites disorder/violence.
4. Balwant Singh v. State of Punjab (1995) 3 SCC 214 – Held that slogan-shouting “Khalistan Zindabad” immediately after Indira Gandhi’s assassination was not an offence absent public disorder. The HC analogised “Pakistan Zindabad.”
5. Manzar Sayeed Khan v. State of Maharashtra (2007) 5 SCC 1 and Javed Ahmad Hajam (2024) 4 SCC 156 – Reaffirmed requirement of mens rea under Section 153-A IPC; Court imported the “reasonable person” yardstick into Section 152 BNS assessment.
6. Farooq Ahmad v. State of H.P. (2025 HHC 23619) – A coordinate bench case granting bail under Section 153-A IPC; cited for parity.

3.2 Court’s Legal Reasoning

1. Statutory Parity: Section 152 BNS is the functional successor of Section 124-A IPC but with lexical changes (“attempt to excite secession” vs “attempt to excite hatred”). Hence prior 124-A jurisprudence remains persuasive.
2. Mens Rea & Incitement Test: Drawing on Kedar Nath (implicitly) and Vinod Dua, the Court held that words must show a “tendency to create public disorder by resort to violence.” Absent an overt call to violence or rebellion, the constitutional right to free speech prevails.
3. Contextual Reading: The post lacked references to overthrowing the Indian government or instigating communal violence. “Hailing a foreign nation” ≠ “subverting one’s own.”
4. Application of Bail Parameters: • Accused’s poverty, roots in the locality, no criminal antecedents, device seized.
   • Investigation substantially complete (charge-sheet filed).
   • No risk of evidence tampering—posts already in police possession.
5. Proportionality: Possible punishment (up to 3 years under Section 152(1)(b) BNS) vis-à-vis elapsed custody (over two months) weighed in favour of bail.

3.3 Potential Impact

• First Direction on Section 152 BNS: Courts nationwide will likely cite Suleman for guidance until the Supreme Court pronounces on the constitutionality of the new sedition provision.
• Narrowing of “Anti-National” Narrative: The decision tempers police reflex to criminalise social-media speech that is politically inconvenient but not violent.
• Bail Practice: Reiterates that mere labelling of an act as “anti-national” cannot override constitutional liberty when investigation is mechanical and proof of intent is thin.
• Digital-Speech Jurisprudence: The ruling bridges classic sedition law with contemporary realities (AI-generated images, social media virality), demanding evidence beyond device seizure.

Complex Concepts Simplified

Section 152 BNS

The new sedition-type offence in the 2023 criminal code. Like old Section 124-A IPC, it punishes speech that attempts to excite secession, war, or violence, but requires intention or likely effect of public disorder.

Mens Rea

Latin for “guilty mind.” Prosecutor must show Suleman intended to incite violence or had knowledge his post would likely cause disorder.

Bail Parameters

Courts balance (i) seriousness of accusation, (ii) risk of flight/tampering, (iii) need for custody for investigation, and (iv) right to liberty.

Incitement vs. Advocacy

Incitement is a direct call to violence or illegal action; advocacy is mere expression of opinion or support. The Court said “Pakistan Zindabad” is, at worst, advocacy absent a violent call.

Conclusion

Suleman v. State of H.P. performs two vital functions. First, it offers the earliest judicial exposition of Section 152 BNS, firmly rooting it in the “intent + incitement” paradigm long applied to the sedition debate. Second, it fortifies the bail jurisprudence that liberty is the norm, incarceration the exception, especially when prosecution evidence is purely digital and already secured. Going forward, investigators will have to demonstrate a credible nexus between allegedly seditious speech and an intention or likelihood of violent public disorder; mere rhetoric or sloganeering will not suffice. The decision therefore stands as a bulwark for free expression in the era of amplified online speech, ensuring that the new penal code is not wielded as a blunt instrument against dissent.