(This is a guest post by Rahul Machaiah)
The recent decision of a two-judge bench of the Supreme Court in State of Telangana v. Nalla Balu contains an erroneous interpretation of the procedural law governing criminal defamation. In September 2025, the Telangana High Court issued eight “operational guidelines”/directions to be followed by magistrates and the police when criminal cases are sought to be filed against political speech, particularly through social media posts. The High Court issued these directions while quashing three First Information Reports (“FIRs”) registered against Dhurgam Shashidhar Goud @ Nalla Balu under provisions pertaining to hate speech, defamation, obscenity, etc., in connection with his social media posts criticising the Chief Minister of Telangana and the ruling party.
Directions issued by the Telangana High Court
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The directions issued by the High Court may be summarised as follows:
- The police must verify whether the informant is a “person aggrieved” before registering an FIR for defamation or similar offences.
- The police must conduct a preliminary enquiry before registering an FIR so as to ascertain whether the alleged act attracts the ingredients of a cognizable offence, prima facie.
- The police must not register cases under provisions pertaining to sedition, promotion of enmity or public mischief unless the social media post or speech incites violence, hatred or public disorder.
- The police must not mechanically register cases pertaining to harsh or critical political speech unless the speech incites violence.
- The police must not immediately register an FIR when defamation is alleged. Instead, the informant must be “directed to approach the magistrate” and the police may register a case only after the magistrate passes an order under Section 174 (2) of the Bharatiya Nagarik Suraksha Sanhita (“BNSS”), referring the case for investigation.
- The police must follow the Supreme Court’s directions in Arnesh Kumar vs State of Bihar (AIR 2014 SC 2756) and refrain from arresting the accused mechanically.
- The police must seek a legal opinion from the prosecutor before registering an FIR pertaining to political speech.
- The police must close frivolous cases without embarking on an investigation, by invoking Section 176 of the BNSS.
Problematic Order of the Supreme Court
The State of Telangana assailed the judgment by filing Special Leave Petitions (“SLPs”) before the Supreme Court. While the State did not assail the judgment on merits i.e. quashing of the cases, it was contended that the broad directions issued by the High Court were “inconsistent with each other” and warranted interference from the Supreme Court. On 2 February, 2026, the Supreme Court dismissed the SLPs. Though the order does not set out the State’s contentions in detail, it reads as follows:
“We have looked into para 29 threadbare. We are of the view that we should not interfere with the impugned judgment and order passed by the High Court including the guidelines issued by the High Court.”
The Supreme Court’s refusal to interfere has subsequently resulted in the Director General & Inspector General of Police of Karnataka issuing a circular dated 07-02-2026, endorsing and reproducing the High Court’s directions pertaining to registration of FIRs in connection with social media posts and directing compliance thereof, by all the police stations in Karnataka.
Flawed interpretation of procedural law pertaining to criminal defamation
A perusal of the Direction No.1 and Direction No.5 issued by the High Court would indicate that the High Court has recognised the power of the police to investigate cases of defamation, albeit with prior permission of the magistrate under Section 174 (2) of the BNSS. With due respect, the directions are erroneous in view of the prohibition contained in Section 222 of the BNSS which stipulates that a court shall not take cognizance of an offence punishable under Section 356 (criminal defamation) of the Bharatiya Nyaya Sanhita (“BNS”) “except upon a complaint made by some person aggrieved by the offence”. The term ‘Complaint’ has been defined under Section 2(h) of the BNSS as “any allegation made orally or in writing to a Magistrate, with a view to his taking action.. but does not include a police report”.
This clearly indicates that a case of criminal defamation may be instituted only by way of a complaint before the magistrate/competent court and the magistrate/competent court may take cognizance of the offence only if the complaint is filed by a “person aggrieved”. It precludes the police from registering an FIR in respect of defamation and the magistrate from referring the case for investigation under Section 174 (2) as such a course would nullify the mandate of Section 222 of the BNSS and lead to a police report being filed in respect of criminal defamation. At the cost of repetition, ‘complaint’ has been defined to explicitly exclude a police report.
Though Explanation to Section 2(h) of the BNSS stipulates that “A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint”, this Explanation applies to a post-investigation scenario where an investigation reveals commission of a non-cognizable offence alone. In such a case, the Explanation creates a fiction through which a police report is deemed to be a ‘complaint’ in respect of the non-cognizable offence, so as to enable the court to take cognizance of the police report. More importantly, the Explanation also stipulates that in such a case the police officer filing the report “shall deemed to be a complainant”. Consequently, if the police were to draw support from the Explanation to Section 2(h) in a case of criminal defamation, it would fall foul of the mandate of Section 222 as the police officer would be deemed to be the ‘complainant’ as opposed to the person aggrieved. Therefore, even the Explanation to Section 2(h) of the BNSS does not empower the police to file a police report in respect of criminal defamation.
To appreciate this proposition and for a broader perspective on the scheme of procedural law, it would be useful to refer to Section 186 of the Indian Penal Code (“IPC”) which criminalises the act of obstructing a public servant in discharging public functions. Section 195 of the Code of Criminal Procedure, 1973 (“CrPC”) stipulates that a court may take cognizance of an offence under Section 186 IPC only based on a ‘complaint’ filed by the public servant concerned or his senior officer. In Devendra Kumar v. State by NCT of Delhi (2025 INSC 1009) and Umashankar Yadav v. State of UP (2025 INSC 653), the Supreme Court held that the Explanation to the definition of ‘Complaint’ under Section 2 (d) of the CrPC (similarly worded as Section 2 (h) of the BNSS) would not enable a police officer to file a police report in respect of an offence under Section 186 in light of the bar imposed by Section 195 of CrPC. In Umashankar Yadav, it was contended that in a scenario where an FIR is registered under Sections 353 (cognizable offence of assaulting a public servant) and 186 of IPC, a police report disclosing the commission of an offence under Section 186 would be sustainable as a ‘complaint’ under the Explanation, even if Section 353 is quashed. The Supreme Court repelled the contention by ruling:
“Even then, the legal embargo under section 195 Cr.PC is not dispelled as the legal fiction deems the police officer and not the aggrieved public servant as the complainant.”
Section 222 of the BNSS is similar to Section 199 of CrPC. Section 199 has been interpreted authoritatively in several judgments of the Supreme Court and various High Courts. In Subramanian Swamy v. Union of India (AIR 2016 SC 2728), wherein the Supreme Court upheld the constitutional validity of Section 499 & 500 of the IPC (criminal defamation) and Section 199 of the CrPC, the Supreme Court categorically held that it would be impermissible to register an FIR in respect of defamation and even a magistrate must not refer cases of defamation for investigation by the police. These prohibitions were traced to the mandate of Section 199 of the CrPC. The Supreme Court also held that there is a “heavy burden” on the magistrate to scrutinize complaints of defamation and permit further proceedings only if the allegations attract the ingredients of the offence of defamation, as the law of defamation must not be allowed to turn into an instrument of vendetta.
Thereafter, in Arnab Goswami v. Union of India (AIR 2020 SC 2386), a three-judge bench of the Supreme Court reiterated the law laid down in Subramanian Swamy (supra). The police had registered an FIR against anchor Arnab Goswami for the offence of defamation under Section 500 of the IPC along with other provisions such as Sections 153, 153A and 295A of the IPC. The Supreme Court held that the scope of the FIR and the investigation must not extend to the offence of defamation in light of the bar contained in Section 199 of the CrPC and the Court’s decision in Subramanian Swamy.
Therefore, the Telangana High Court erred in recognizing the power of the police to register an FIR when defamation is alleged and the power of the magistrate to permit investigation in such cases, under Section 174(2) of BNSS. Strangely, the High Court arrived at this erroneous conclusion despite observing in paragraph 21 of the judgment that cognizance of defamation ought to be taken only based on a ‘complaint’ filed by an aggrieved person.
Unfortunately, the Supreme Court failed to notice Section 222 of the BNSS and engage with the law laid down in the cases of Subramanian Swamy (supra) and Arnab Gowswami (supra). Instead, the Court observed that it had examined the High Court’s directions “threadbare” and no interference was warranted.
Impact on free speech and judicial discipline
Suppose an application is filed before the magistrate under Section 174 (2) seeking investigation into allegations of defamation arising out of a political post on social media, the magistrate would be faced with conflicting propositions of law laid down by the constitutional courts. In the interest of freedom of speech and judicial discipline, it is imperative that the Supreme Court exercises its power of review and rectifies the patent error of permitting registration of an FIR in respect of defamation.
The legislature has consciously incorporated safeguards against stifling of free speech and misuse of law of defamation, by prescribing a distinct procedure to initiate criminal defamation proceedings i.e. filing of a complaint before a magistrate, recording of the complainant’s sworn statement by the magistrate, hearing of the accused etc. before the accused is summoned for trial. The Telangana High Court’s directions, as upheld by the Supreme Court, may have a chilling effect on free speech as they enable these crucial safeguards to be circumvented.
