DATE: 01/01/2026
COURT: High Court of Himachal Pradesh
BENCH: Justice Rakesh Kainthla
FACTS:
The petitioner, Abhishek Singh Bhardwaj,
was arrested following FIR No. 71 of 2025 dated 28.5.2025 at Police Station
Dehra, District Kangra, Himachal Pradesh, under Section 152 of the Bharatiya
Nyaya Sanhita, 2023 (BNS), which corresponds to Section 124A of the Indian
Penal Code (IPC) for sedition. On 28.5.2025, police on patrolling duty received
secret information that the petitioner had uploaded photos and videos on
Facebook featuring prohibited/illegal weapons, his name written with those
weapons, the Pakistan flag, and content supporting Khalistan while criticizing
Operation Sindoor. The police, accompanied by independent witnesses Mohinder
Singh and Jagdish Ram, visited the petitioner's house where his parents were
present; the petitioner emerged shortly after. Upon checking his Facebook ID,
they found the alleged uploads and chats with a Pakistani national named Niaz
Khan, where he expressed support for Khalistan and opposition to Operation
Sindoor. A house search yielded no prohibited arms or substances, but the
police seized his mobile phone, which was sent for forensic analysis at the
FSL, and the report was obtained.
The petitioner denied the allegations,
claiming innocence and false implication, asserting that the content did not
incite disorder or violence. The police completed the investigation, filed a
charge sheet, and the case was listed for recording prosecution witnesses'
statements on 14.1.2026. The petitioner filed the bail petition arguing that
the charge sheet's filing rendered further custody unnecessary and that the
allegations did not meet the criteria for Section 152 BNS. The State opposed
the bail, citing the petitioner's alleged anti-national activities and contacts
with Pakistani nationals, emphasizing the offense's gravity. The court heard
arguments from both sides, with the petitioner's counsel stressing
non-fulfillment of sedition elements and the State's counsel highlighting the
risks involved.
ISSUES:
The core issue before the Himachal Pradesh
High Court was whether the petitioner, Abhishek Singh Bhardwaj, should be granted
regular bail under Section 152 of the BNS in FIR No. 71 of 2025, considering
whether the alleged acts, uploading photos/videos of prohibited weapons, the
Pakistan flag, and content supporting Khalistan while criticizing Operation
Sindoor on Facebook, along with chats with a Pakistani national constituted
sedition by intending or tending to create public disorder, disaffection
towards the government, or disturbance of public peace; the applicability of
bail parameters such as the nature of accusations, evidence, risk of tampering,
and the fact that the charge sheet had been filed with no recovery of
prohibited items; and balancing the offense's gravity against the petitioner's
right to liberty without using bail as pre-trial punishment.
JUDGEMENT WITH REASONING:
The Himachal Pradesh High Court allowed the
bail petition, ordering the release of the petitioner, Abhishek Singh Bhardwaj,
on furnishing bail bonds of Rs.50,000 with one surety of the like amount to the
satisfaction of the Trial Court. The court imposed
conditions including not intimidating witnesses or influencing evidence,
attending all trial hearings without unnecessary adjournments, not leaving his
address for over seven days without informing the SHO, police station, and
Trial Court, surrendering his passport (if any), and providing mobile and
social media details to the police and court with updates on changes; violation
of conditions would allow the prosecution to seek bail cancellation. The
petition was disposed of, with observations limited to bail and no bearing on
merits, and a copy sent to relevant authorities.
The court applied established bail
parameters from Supreme Court precedents like Pinki v. State of U.P. (2025) 7
SCC 314, emphasizing factors such as the nature of the charge, evidence,
potential punishment, risk of justice being thwarted, antecedents, and
likelihood of tampering or absconding, while exercising discretion judiciously
without arbitrary denial based on offense gravity alone. It clarified that
Section 152 BNS (akin to Section 124A IPC) penalizes only acts intended or
tending to create public disorder, disturbance of peace, or incitement to
violence, as per Kedar Nath Singh v. State of Bihar (1962) and Vinod Dua v.
Union of India (2023) 14 SCC 286, distinguishing criticism of government
actions from subversion of the state. Prima facie, the FIR lacked averments of
hatred or discontent towards the government established by law; the mobile data
showed chats criticizing India-Pakistan hostilities and advocating peace across
religions, which did not incite violence or disorder. No prohibited weapons
were recovered, and mere uploads of arms forming a name or the Pakistan flag
did not constitute sedition without evidence of disaffection or public
excitement. Even assuming "Khalistan Zindabad" slogans (not found in
data), Balwant Singh v. State of H.P. (1995) 3 SCC 124 held such casual raising
without causing disturbance or mens rea does not offend, as there was no proof
of incitement or impact on public order here.
Furthermore, the court reiterated from
Manzar Sayeed Khan v. State of Maharashtra (2007) 5 SCC 1 and Javed Ahmad Hajam
v. State of Maharashtra (2024) 4 SCC 156 that intention to promote enmity or
hatred must be judged from the entire context using the standard of a reasonable,
strong-minded person, not weak or vacillating minds, and isolated passages
cannot infer guilt without mens rea to incite violence between groups. The
content, read holistically, promoted unity and peace rather than disharmony,
with no involvement of multiple communities or evidence of actual disorder from
the Facebook posts. With the charge sheet filed and trial imminent (statements
on 14.1.2026), continued detention served no purpose, as bail cannot punish
pre-conviction, per Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC
496. The petitioner's cooperation, lack of antecedents suggesting flight or
tampering risk, and the offense's non-heinous nature (no violence caused)
outweighed the State's concerns, leading to bail with safeguards to ensure
trial integrity and presence.
ANALYSIS:
In Abhishek Singh Bhardwaj's bail petition
before the Himachal Pradesh High Court, the court granted regular bail in FIR
No. 71 of 2025 under Section 152 of the Bharatiya Nyaya Sanhita, 2023
(sedition), holding that the alleged social media posts and chats did not prima
facie satisfy the stringent threshold required for the offence. The petitioner
was accused of uploading photographs and videos of prohibited weapons (with his
name written alongside), the Pakistan flag, and content supporting Khalistan
while criticizing Operation Sindoor, along with chats with a Pakistani national
expressing opposition to the operation. The court, however, found no averment
in the FIR of any direct hatred, contempt, or disaffection towards the
Government established by law in India. Applying the settled law from Kedar
Nath Singh v. State of Bihar (1962), Vinod Dua v. Union of India (2023), and
related precedents, it emphasized that Section 152 BNS criminalizes only those
acts which are intended or have a tendency to incite violence, create public
disorder, or disturb public peace. The content, when viewed holistically,
appeared to criticize hostilities between India and Pakistan and advocate peace
and religious harmony, rather than subvert the state or provoke disorder. The
absence of recovery of any prohibited weapons, the lack of evidence showing
actual public excitement or disturbance, and the non-finding of “Khalistan
Zindabad” slogans in the forensic data further weakened the prosecution’s case
at the bail stage.
The High Court exercised its discretion
judiciously by balancing the gravity of the sedition charge against
constitutional safeguards and bail principles laid down in Pinki v. State of
U.P. (2025) and other authorities, reiterating that bail is the rule and jail
the exception, especially where continued detention serves no purpose after the
charge sheet is filed. It dismissed the State’s contention of anti-national
activities and foreign contacts as insufficient to justify pre-trial
incarceration, noting no mens rea to promote enmity between communities (per
Manzar Sayeed Khan and Javed Ahmad Hajam), no risk of tampering given the
documentary nature of evidence, and no antecedents suggesting flight. With the
trial process already advanced (witness statements scheduled for 14.1.2026),
the court held that prolonged custody would amount to pre-conviction
punishment. Bail was therefore granted subject to stringent
conditions—including surrender of passport, furnishing contact details, and
restrictions on movement and witness interference—to safeguard the trial’s
integrity while upholding the petitioner’s right to liberty. This decision
underscores the judiciary’s cautious and narrow interpretation of sedition laws
in the digital age, protecting free speech unless clear incitement to violence
is demonstrable.
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