Patna High Court
Nitish Kumar vs The State Of Bihar on 17 June, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.25589 of 2025
Arising Out of PS. Case No.-321 Year-2025 Thana- BEGUSARAI COMPLAINT CASE
District- Begusarai
======================================================
Nitish Kumar S/o Late Ram Lakhan Singh At present R/o 1, Aney
Marg, P.S.- Sachivalaya, Distt.- Patna.
... ... Petitioner
Versus
1. The State of Bihar
2. Vikash Paswan S/o Late Mahesh Paswan R/o Bhagatpur, P.s.- Balia,
Distt.- Begusarai.
.. ... Opposite Party
======================================================
Appearance :
For the Petitioner/s : Mr.P.K. Shahi, Sr. Advocate (AG)
Mr.Amish Kumar, Advocate
Mr.Sanjiv Kumar, Advocate
Ms.Nausheen Fatma, Advocate
Mr.Atul Anjan, Advocate
For the Opposite Party/s : Mr.Bhanu Pratap Singh, APP
Mr.Akash Shankar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
C.A.V. JUDGMENT
Date : 17-06-2025
Heard Mr. P.K. Shahi, learned Advocate General
appearing for the petitioner and Mr. Bhanu Pratap Singh,
learned A.P.P. for the State duly assisted by Mr. Akash
Shankar, learned counsel for the respondent/opposite party
No. 2.
2. The present quashing petition preferred under
Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023
(in short, the "B.N.S.S.") by the petitioner for quashing the
entire complaint case including order dated 25.03.2025
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passed in Complaint Case No. 321(C)/2025 and
consequential notice issued against petitioner as 'proposed
accused', pending in the court of Sri Mayank Kumar Pandey,
learned Judicial Magistrate - 1st Class, Begusarai.
3. The brief case of the prosecution as it appears
from the complaint petition, as mentioned aforesaid, filed
before the court of learned C.J.M., Begusrai, that on
20.03.2025
, while the complainant was watching a broadcast
on Nav Bharat TV Channel at about 1:45 P.M., You
Tube Channel and other social media, he noticed that the
petitioner while inaugurating the event of ‘World Cup Sepak
Takra, during the singing of the ‘National Anthem’ found
talking with a person standing next to him, and he was
continuously disturbing the said person and also found in the
posture of ‘Pranaam’. It is alleged that the aforesaid conduct
of the petitioner during the playing of the National Anthem is
an offence punishable under section 3 of the Prevention of
Insult to National Honour Act, 1971 and said act of the
petitioner/proposed accused has deeply hurt the complainant.
4. The petitioner is presently holding the office of
Patna High Court CR. MISC. No.25589 of 2025 dt.17-06-2025
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Chief Minister of Bihar.
5. It is submitted by Mr. P.K. Shahi, learned
Advocate General, while arguing on behalf of the petitioner,
that the present complaint was filed under political motivation
to tarnish the image of the petitioner, who is the Chief
Minister of the State of Bihar since 2005.
6. It is submitted by Mr. Shahi that the complaint
was filed on 22.03.2025, when regular C.J.M. was on special
leave and Sri Mayank Kumar Pandey, Judicial Magistrate, was
the In-charge C.J.M. After receipt of the complaint, the
learned Magistrate put up the case on 25.03.2025 for further
proceedings after exercising power under section 212 of the
Bhartiya Nagarik Suraksha Sanhita, 2023 (in short, the
‘B.N.S.S.’). Being In-charge C.J.M., he recorded the
requirement under section 218 of the B.N.S.S. is dispensed
with at this stage, as prima-facie, on perusal of the complaint
petition, the act of the proposed accused is distinct from his
acting or purporting in discharge of his official duty, which is a
perverse finding.
7. It is submitted that the learned Judicial
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Magistrate, in a hurried manner, exercised the power under
Section 212(2) of the B.N.S.S. and transferred the case into
his own file for further inquiry, trial and disposal.
8. It is submitted by Mr. Shahi that in the same
hurried manner, the learned Magistrate without recording the
statement of the complainant on S.A., ordered the issuance of
notice to the petitioner as “proposed accused” as per
provisions available under section 223 of the B.N.S.S.
9. Mr. Shahi, learned Advocate General, while
arguing the matter, submitted further that the complainant is
a private person and, therefore, the issuance of notice to the
petitioner as “proposed accused” without examination of
complainant upon oath and the witnesses present, if any, and
the issuance of notice as “proposed accused” in view of
section 223(1) of the B.N.S.S. is illegal on its face.
10. It is also pointed out by Mr. Shahi that the
petitioner was present at the alleged event in the capacity of
Chief Minister of Bihar to inaugurate the event, and,
therefore, his presence at the event cannot be distinguished
from his official function. Any such observation is perverse on
Patna High Court CR. MISC. No.25589 of 2025 dt.17-06-2025
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its face, as if the petitioner was not the Chief Minister of State
and had no occasion to present for inaugurating the World
Cup event of “Sepak Takra”. It is submitted that holding the
petitioner not as a public servant for the alleged event is bad
in the eyes of the law and, therefore, the issuance of notice as
“proposed accused” to the petitioner is liable to be quashed
and set aside.
11. In support of his submission, learned Advocate
General relied upon the legal report of Hon’ble Supreme Court
as available through Bijoe Emmanuel and others Vs.
State of Kerala and others [(1986) 3 SCC 615]; as well
as the legal report of Hon’ble Kerala High Court at Ernakulam
as available through Suby Antony Vs. Judicial First-Class
Magistrate-III [2025 SCC OnLine Ker 532]. As far as
the requirement of the sanction being a public servant is
concerned, Mr. Shahi also relied upon the legal report of the
Hon’ble Supreme Court as available through G.C.
Manjunath & Others Vs. Seetaram reported as 2025
INSC 439.
12. Arguing further, Mr. Shahi, learned Advocate
Patna High Court CR. MISC. No.25589 of 2025 dt.17-06-2025
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General submitted that the complainant himself admitted
through his complaint petition that the petitioner was in a
standing position during the singing of the ‘National
Anthem’ and was doing “Pranaam” with a smiling face,
which in itself does not constitute any offence on its face as
far as the insult of the ‘National Anthem’ is concerned.
13. It is submitted that as far as the allegation qua
disturbing the next standing person in the row is concerned, it
appears politically motivated, which can be gathered from the
complaint itself as the name of the person who was said to be
disturbed by the petitioner during the national anthem in the
alleged video clips, was not even named, who otherwise
could be the best witness in support of allegation.
14. In the background of the aforesaid factual
submission, Mr. Shahi submitted that under political
motivation the complainant lodged the present baseless
complaint against the petitioner just to tarnish his image, who
has been holding the constitutional office of the Chief Minister
of State of Bihar since 2005, with oblique and ulterior
motives, as the election of the State Assembly is likely to be
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held in a few months.
15. Notice, as issued by this Court, was duly served
upon the complainant/opposite party no. 2 namely, Vikash
Paswan, on 18.04.2025 at about 8:15 P.M. Complainant was
duly represented by Mr. Akash Shankar, learned advocate.
16. Mr. Akash Shankar, learned counsel appearing
for the complainant/opposite party No. 2, while arguing the
matter, submitted that the inauguration of the event cannot
be said to be an official duty of the Chief Minister. It is
submitted that the petitioner may raise all such issues before
the learned Magistrate through his advocate, however, he
conceded that in terms of the complaint, the petitioner was
said to be standing at the time of singing of the ‘National
Anthem’ and found doing “Pranaam” and also the name of
the person, who was said to be disturbed by him, is not
mentioned in the complaint petition.
17. At the outset, it would be apposite to reproduce
the allegatory part of the complaint petition dated
22.03.2025, which is in para 3, 4 & 5 of the complaint
petition, which reads as under:
3-;g fd fnukad & 20-03-2025 dks yxHkx fnu ds 01-45 cts VkbZe Now
Patna High Court CR. MISC. No.25589 of 2025 dt.17-06-2025
8/23Nav Bharat pSuy lfgr vU; fofHkUu Youtube pSuyksa] lks’ky ehfM;k
ds }kjk izlkfjr ohfM;ks fDyi ns[kus dk ifjoknh dks ekSdk feyk] ftls
ns[kdj ifjoknh dkQh grizHk gqvk ,oa ifjoknh dks vR;Ur nq%[k igqWpk ,oa
fcgkj jkT; ds ekuuh; eq[;ea=h uhfr’k dqekj ds }kjk ns’k ds jk”Vªxku dks
viekfur gksrk] ns[kdj vkRe xykuh ls Hkj x;k ,oa [kqn dks ‘kfeZnk eglwl
djus yxkA
4- ;g fd mijksDr ohfM;ks fDyi oxSjg dks ns[kus ls ;g Li”V gqvk gS fd
fcgkj ds ekuuh; eq[;ea=h uhfr’k dqekj us iVuk fLFkr ikVfyiq=k LVsfM;e
esa fo’o lsod Vdjk izfr;ksfxrk ds mn~?kkVu lekjksg ds vk;kstu esa
jk”Vªxku ds nkSjku vius ikl [kM+s O;fDr ls ckrphr ,oa mDr O;fDr ds
‘kjhj dks ckj ckj Nqdj ijs”kku ,oa galrs gq, iz.kke djus dh eqnzk esa
fn[kkbZ iM+ jgs gSaA
5- ;g fd Jh uhfr’k dqekj ekuuh; eq[;ea=h fcgkj ljdkj ds }kjk
jk”Vªxku ds lEeku esa lko/kku dh eqnzk esa [kM+k ugha jguk] gWluk] ckrphr
djuk rFkk vius ikl [kM+s O;fDr dks ijs’kku djrs gq, jk”Vªxku djus ls
jksdus dk iz;kl djus dk d`R; Li”V :i ls jk”Vªh; xkSjo vieku fuokj.k
vf/kfu;e^^ 1971 dh /kkjk & 3 ds vUrxZr n.Muh; vijk/k gS] pwWfd Hkkjrh;
lafo/kku ds vuqPNsn 51 ¼,½ ds vuqlkj jk”Vªxku dk lEeku djuk Hkkjr ds
izR;sd ukxfjd dk ekSfyd drZO; gS vFkkZr~ izR;sd ukxfjd ls ;g mis{kk dh
tkrh gS fd og jk”Vªxku ds izfr viuk lEeku fn[kk,W vkSj mudk vieku
djus okys fdlh dk;Z esa ‘kkfey u gksA blfy, fcgkj ds ekuuh; eq[;ea=h
uhfr’k dqekj ds mijksDr d`R; ls ifjoknh ,oa vU; ukxfjdksa dh Hkkoukvksa
dks xgjh Bsl igWqph gSA
18. It would be apposite to reproduce Section 223 of
the B.N.S.S. for ready reference:
“223. Examination of complainant – (1) A Magistrate
having jurisdiction while taking cognizance of an offence on
complaint shall examine upon oath the complainant and the
witnesses present, if any, and the substance of such
examination shall be reduced to writing and shall be signed
by the complainant and the witnesses, and also by the
Magistrate:
Provided that no cognizance of an offence shall be taken by
the Magistrate without giving the accused an opportunity of
being heard:
Provided further that when the complaint is made in writing,
the Magistrate need not examine the complainant and the
witnesses–
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(a) if a public servant acting or purporting to act in the
discharge of his official duties or a Court has made the
complaint; or
(b) if the Magistrate makes over the case for inquiry or trial
to another Magistrate under section 212:
Provided also that if the Magistrate makes over the case to
another Magistrate under section 212 after examining the
complainant and the witnesses, the latter Magistrate need
not re-examine them.
(2) A Magistrate shall not take cognizance on a complaint
against a public servant for any offence alleged to have
been committed in course of the discharge of his official
functions or duties unless–
(a) such public servant is given an opportunity to make
assertions as to the situation that led to the incident so
alleged; and
(b) a report containing facts and circumstances of the
incident from the officer superior to such public servant is
received.”
19. From a bare perusal of section 223 of the
B.N.S.S., it appears that while taking cognizance of an
offence complainant shall be examined upon oath and the
witnesses present, if any, except when the complaint is made
in writing by a public servant acting or purporting to act in
discharge of his official duty or if a court has made the
complainant or if the Magistrate makes over the case for
inquiry or trial to another Magistrate under section 212 of the
B.N.S.S. where a further provision was made that if the
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Magistrate makes over the case to another Magistrate under
Section 212 after examining the complainant and the
witnesses, the later Magistrate need not have examined them.
Having such a legal position, without examining the
complainant on oath and prosecution witnesses, the finding of
learned Magistrate as to proceed further and therefore to
issue notice to the petitioner as “proposed accused” is
totally unfounded and misconceived.
20. In aforesaid context, it would be relevant to
reproduce paras 4, 5, 6 & 7 of Suby Antony case (supra),
which reads as under:
“4. As the term cognizance is not defined in BNSS, it will
be profitable to refer the following erudite exposition of
the Supreme Court in S.K. Sinha, Chief Enforcement
Officer v. Videocon International Ltd. [(2008) 2 SCC
492].
“19. The expression “cognizance” has not been
defined in the Code. But the word (cognizance) is of
indefinite import. It has no esoteric or mystic
significance in criminal law. It merely means
“become aware of” and when used with reference to
a court or a Judge, it connotes “to take notice of
judicially”. It indicates the point when a court or a
Magistrate takes judicial notice of an offence with a
view to initiating proceedings in respect of such
offence said to have been committed by someone.
20. “Taking cognizance” does not involve any formal
action of any kind. It occurs as soon as a Magistrate
applies his mind to the suspected commission of an
offence. Cognizance is taken prior to
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11/23commencement of criminal proceedings. Taking of
cognizance is thus a sine qua non or condition
precedent for holding a valid trial. Cognizance is
taken of an offence and not of an offender. Whether
or not a Magistrate has taken cognizance of an
offence depends on the facts and circumstances of
each case and no rule of universal application can be
laid down as to when a Magistrate can be said to
have taken cognizance.
“5. Thus, the taking of cognizance of an offence occurs
when the Magistrate takes judicial notice of an offence
with a view to initiate proceedings in respect of such
offence alleged to have been committed by the accused.
Once cognisance is taken, then the Magistrate has to
decide whether to issue process to the accused or not.
Section 225 confers power on the Magistrate to
postpone the issue of process to the accused even after
taking cognisance of the offence. At that stage the
Magistrate can either inquire into the case himself, or
direct investigation to be made by a police officer or such
other person for the purpose of deciding whether there
is sufficient ground for proceeding. The Apex Court in
Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi
[(1976) 3 SCC 736], dilating on the limited scope of
inquiry under Section 202 Cr. P.C., corresponding to
Section 225 of BNSS, held as under;
“4. It would thus be clear from the two decisions of
this Court that the scope of the inquiry under Section
202 of the Code of Criminal Procedure is extremely
limited — limited only to the ascertainment of the
truth or falsehood of the allegations made in the
complaint– (i) on the materials placed by the
complainant before the court : (ii) for the limited
purpose of finding out whether a prima facie csse for
issue of process has been made out; and (iii) for
deciding the question purely from the point of view of
the complainant without at all adverting to any
defence that the accused may have. In fact it is well
settled that in proceedings under Section 202 the
accused has got absolutely no locus standi and is not
entitled to be heard on the question whether the
process should be issued against him or not.”
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The above decision leaves no room for doubt that under
the Code the accused had no locus standi even at the
stage where the Magistrate decides whether or not to
issue process to the accused.
6. While on this question, it will also be profitable to
refer the decision of the Apex Court in A.R. Antulay v.
Ramdas Sriniwas Nayak [(1984) 2 SCC 500], wherein
the procedure to be followed by the Magistrate upon
filing of a complaint is detailed as under;
“When a private complaint is filed, the court has to
examine the complainant on oath save in the cases
set out in the proviso to Section 200 CrPC. After
examining the complainant on oath and examining
the witnesses present, if any, meaning thereby that
the witnesses not present need not be examined, it
would be open to the court to judicially determine
whether a case is made out for issuing process.
When it is said that court issues process, it means
the court has taken cognizance of the offence and
has decided to initiate the proceeding and as a visible
manifestation of taking cognizance, process is issued
which means that the accused is called upon to
appear before the court. This may either take the
form of a summons or a warrant, as the case may
be. It may be that after examining the complainant
and his witnesses, the court in order to doubly assure
itself may postpone the issue of process, and call
upon the complainant to keep his witnesses present.
The other option open to the court is to direct
investigation to be made by a police officer.
Upon a complaint being received and the court
records the verification, it is open to the court to
apply its mind to the facts disclosed and to judicially
determine whether process should or should not be
issued. It is not a condition precedent to the issue of
process that the Court of necessity must hold the
inquiry as envisaged by Section 202 or direct
investigation as therein contemplated. The power to
take cognizance without holding inquiry or directing
investigation is implicit in Section 202 when it says
that the Magistrate may “if he thinks fit, postpone
the issue of process against the accused and either
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13/23inquire into the case himself or direct an
investigation to be made by a police officer…, for the
purpose of deciding whether or not there is sufficient
ground for proceeding”. Therefore, the matter is left
to the judicial discretion of the court whether on
examining the complainant and the witnesses if any
as contemplated by Section 200 to issue process or
to postpone the issue of process. This discretion
which the court enjoys cannot be circumscribed or
denied by making it mandatory upon the court either
to hold the inquiry or direct investigation. Such an
approach would be contrary to the statutory
provision. Therefore, there is no merit in the
contention that by entertaining a private complaint,
the purpose of speedy trial would be thwarted or that
a pre-process safeguard would be denied.”
7. Indeed, a radical change in procedure is brought
about by the proviso to Section 223(1) of BNSS.
Pertinently, in spite of the proviso to Section 223(1)
making it mandatory to provide opportunity of hearing
to the accused before taking cognisance, Section 226
does not reckon the accused’s objection at the stage of
taking cognisance as a relevant factor for dismissing the
complaint. Being guided by the precedents on Sections
200 and 202 of the Code and the plain language of the
proviso to Section 223(1) of the BNSS, this Court is of
the opinion that, after the complaint is filed, the
Magistrate should first examine the complainant and
witnesses on oath and thereafter, if the Magistrate
proceeds to take cognisance of the offence/s,
opportunity of hearing should be afforded to the
accused. I am also in complete agreement with the
following procedural drill delineated by the High Court of
Karnataka in Basanagouda’s case (supra);
“9. To steer clear the obfuscation, it is necessary to
notice the language deployed therein. The
Magistrate while taking cognizance of an offence
should have with him the statement on oath of the
complainant and if any witnesses are present, their
statements. The taking of cognizance under Section
223 of the BNSS would come after the recording of
the sworn statement, at that juncture a notice is
Patna High Court CR. MISC. No.25589 of 2025 dt.17-06-2025
14/23required to be sent to the accused, as the proviso
mandates grant of an opportunity of being heard.
10. Therefore, the procedural drill would be this way
: A complaint is presented before the Magistrate
under Section 223 of the BNSS; on presentation of
the complaint, it would be the duty of the
Magistrate/concerned Court to examine the
complainant on oath, which would be his sworn
statement and examine the witnesses present if
any, and the substance of such examination should
be reduced into writing. The question of taking of
cognizance would not arise at this juncture. The
magistrate has to, in terms of the proviso, issue a
notice to the accused who is given an opportunity of
being heard. Therefore, notice shall be issued to the
accused at that stage and after hearing the accused,
take cognizance and regulate its procedure
thereafter.”
21. While issuing notice dated 04.04.2025 as
“proposed accused” to the petitioner, the act of the petitioner
was found distinguished from his officials and for said
purpose, the petitioner was prima facie not treated as a public
servant and, therefore, section 218 of the B.N.S.S. was not
found applicable by learned trial court in the present case.
22. Admittedly, the petitioner has been the Chief
Minister of State of Bihar since 2005. The duty hours of a
Chief Minister or, for that purpose, any minister of the
government cannot be limited to their official work time only,
i.e. between 9:00 A.M. and 5:30 P.M. Ministers, particularly
the head of the Cabinet not only leads the Cabinet but also
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undertakes various additional responsibilities including
attending public events, meetings and conferences, many of
which may be scheduled beyond regular working hours. The
petitioner was present at the inaugural function of the
“World Cup Sepak Takra” at Patliputra Stadium, Patna, in
the capacity of Chief Minister. If petitioner was not the Chief
Minister, he had no occasion to inaugurate the event and,
therefore, his presence at the inaugural event, as aforesaid,
cannot be distinguished by saying that his participation was
not in capacity of a public servant as to import the protection
of section 218 of the B.N.S.S.
23. In the aforesaid context, It would be appropriate
here to reproduce para 35 and 36 of the G.C. Manjunath
case (supra), which reads as under:
“35. Recently, this Court in Gurmeet Kaur vs.
Devender Gupta, 2024 SCC OnLine SC 3761
dealt with the object and purpose of Section 197 of
the CrPC which reads as follows:
“22. … the object and purpose of the said provision is
to protect officers and officials of the State from
unjustified criminal prosecution while they discharge
their duties within the scope and ambit of their powers
entrusted to them. A reading of Section 197 of the
CrPC would indicate that there is a bar for a Court to
take cognisance of such offences which are mentioned
in the said provision except with the previous sanction
Patna High Court CR. MISC. No.25589 of 2025 dt.17-06-2025
16/23of the appropriate government when the allegations
are made against, inter alia, a public servant. There is
no doubt that in the instant case the appellant herein
was a public servant but the question is, whether,
while discharging her duty as a public servant on the
relevant date, there was any excess in the discharge of
the said duty which did not require the first respondent
herein to take a prior sanction for prosecuting the
appellant herein. In this regard, the salient words
which are relevant under subsection (1) of Section 197
are “is accused of any offence alleged to have been
committed by him while acting or purporting to act in
the discharge of his official duty, no Court shall take
cognisance of such offence except with the previous
sanction”. Therefore, for the purpose of application of
Section 197, a sine qua non is that the public servant
is accused of any offence which had been committed
by him in “discharge of his official duty”. The said
expression would clearly indicate that Section 197 of
the CrPC would not apply to a case if a public servant
is accused of any offence which is de hors or not
connected to the discharge of his or her official duty.”
36. In light of the aforesaid judgments, the guiding
principle governing the necessity of prior sanction
stands well crystallised. The pivotal inquiry is whether
the impugned act is reasonably connected to the
discharge of official duty. If the act is wholly
unconnected or manifestly devoid of any nexus to the
official functions of the public servant, the requirement
of sanction is obviated. Conversely, where there exists
even a reasonable link between the act complained of
and the official duties of the public servant, the
protective umbrella of Section197 of the CrPC and
Section 170 of the Police Act is attracted. In such
cases, prior sanction assumes the character of a sine
qua non, regardless of whether the public servant
exceeded the scope of authority or acted improperly
while discharging his duty.”
24. Hence, the observation of the learned Magistrate
Patna High Court CR. MISC. No.25589 of 2025 dt.17-06-2025
17/23
is completely perverse on this issue that the presence of the
petitioner in the inaugural event of “World Cup Sepak
Takra” was not in the capacity of a public servant being Chief
Minister of the State.
25. The complainant himself disclosed that at the
time of singing of the national anthem, the petitioner was
standing and was doing “Pranaam” with a smiling face. This
admitted conduct of the petitioner shows only high respect for
the national anthem having a smiling face at the time of
singing of the national anthem, merely folding hand in
‘Pranaam Mudra’ in standing position and ‘smiling face’
cannot be construed by any prudent imagination that it was
the insult of the “National Anthem”.
26. The other part of the allegation was that the
petitioner was disturbing the person who was standing next to
him in the row, who could be the best witness, but the name
of such a person was not disclosed in the complaint petition,
which made the allegation completely baseless and frivolous,
just to gain cheap popularity in politics by tarnishing the
image of the petitioner, who has been the Chief Minister of
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18/23
the State since 2005.
27. In the aforesaid context, it would further be
apposite to reproduce paras 21, 22, 23, 24 & 25 of Bijoe
Emmanuel case (supra), which reads as under:
“21. In Minersville School District v. Gobitis [84 Law
Ed 1375 : 310 US 586 (1940)] the question arose
whether the requirement of participation by the pupils
and public schools in the ceremony of saluting the
national flag did not infringe the liberty guaranteed by
the 14th amendment, in the case of a pupil who
refused to participate upon sincere religious grounds.
Frankfurter, J., great exponent of the theory of judicial
restraint that he was, speaking for the majority of the
United States Supreme Court upheld the requirement
regarding participation in the ceremony of flag
salutation primarily on the ground : (L Ed p. 1381)
“The wisdom of training children in patriotic
impulses by those compulsions which necessarily
pervade so much of the educational process is not
for our independent judgment…. For ourselves, we
might be tempted to say that the deepest
patriotism, is best engendered by giving unfettered
scope to the most crochety beliefs…. But the
courtroom is not the arena for debating issues of
educational policy. It is not our province to choose
among competing considerations in the subtle
process of securing effective loyalty to the
traditional ideals of democracy, while respecting at
the same time individual idiosyncracies among a
people so diversified in racial origins and religious
allegiances. So to hold would in effect make us the
school board for the country. That authority has not
been given to this Court, nor should we assume it.”
Frankfurter, J.’s view, it is seen, was founded entirely
upon his conception of judicial restraint. In that very
case Justice Stone dissented and said : (L Ed p. 1383)
“It (the Government) may suppress religious
practices dangerous to morals, and presumably
those also which are inimical to public safety, health
and good order. But it is a long step, and one which
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19/23
I am unable to take, to the position that
government may, as a supposed, educational
measure and as a means of disciplining young,
compel affirmations which violate their religious
conscience.”
Stone, J. further observed : (L Ed p. 1384)
“The very essence of the liberty which they [ Ed. :
Referring to the guarantees of civil liberty]
guarantee is the freedom of the individual from
compulsion as to what he shall think and what he
shall say, at least where the compulsion is to bear
false witness to his religion.”
It was further added : (L Ed p. 1384)
“History teaches us that there have been but few
infringements of personal liberty by the State
which have not been justified, as they are here, in
the name of righteousness and the public good,
and few which have not been directed, as they are
now, at politically helpless minorities.”
22. We do not think that it is necessary to consider the
case of Gobitis [84 Law Ed 1375 : 310 US 586
(1940)] at greater length as the decision was
overruled very shortly after it was pronounced by the
same court in West Virginia State Board of Education
v. Barnette [87 Law Ed 1628, 1633 : 319 US 624,
629 (1943)] . Justices Black and Douglas who had
agreed with Justice Frankfurter in the Gobitis case
retraced their steps and agreed with Justice Jackson
who gave the opinion of the court in West Virginia
State Board of Education v. Barnett [87 Law Ed 1628,
1633 : 319 US 624, 629 (1943)] . Justice Jackson in
the course of his opinion observed flag:
“It is also to be noted that the compulsory Flag
salute and pledge requires affirmation of a belief
and an attitude of mind. It is not clear whether the
regulation contemplates the pupils forego any
contrary convictions of their own and become
unwilling converts to the prescribed ceremony or
whether it will be acceptable if they simulate assent
by words without belief and by a gesture barren of
meaning. It is now a commonplace that censorship
or suppression of expression of opinion is tolerated
by our Constitution only when the expression
presents a clear and present danger of action of a
Patna High Court CR. MISC. No.25589 of 2025 dt.17-06-2025
20/23kind the State is empowered to prevent and punish.
It would seem that involuntary affirmation could be
commanded only on even more immediate and
urgent grounds than silence. But here the power of
compulsion is invoked without any allegation that
remaining passive during a flag salute ritual creates
a clear present danger that would justify an effort
even to muffle expression. To sustain the
compulsory flag salute we are required to say that
a Bill of Rights which guards the individual’s right
to speak his own mind, left it open to public
authorities to compel him to utter what is not in his
mind.”
Justice Jackson referred to Lincoln’s famous
dilemma:”Must a government of necessity be too
strong for the liberties of its people, or too weak to
maintain its own existence?” and added:
“It may be doubted whether Mr Lincoln would have
thought that the strength of government to
maintain itself would be impressively vindicated by
our confirming power of the state to expel a
handful of children from school. Such
oversimplification, so handy in political debate,
often lacks the precision necessary to postulates of
judicial reasoning. If validly applied to this problem,
the utterance cited would resolve every issue of
power in favour of those in authority and would
require us to override every liberty thought to
weaken or delay execution of their policies.
Government of limited power need not be anaemic
government. Assurance that rights are secure
tends to diminish fear and jealousy of strong
government, and by making us feel safe to live
under it makes for its better support. Without
promise of a limiting Bill of Rights it is doubtful if
our Constitution could have mustered enough
strength to enable its ratification. To enforce those
rights today is not to choose weak government over
strong government. It is only to adhere as a means
of strength to individual freedom of mind in
preference to officially disciplined uniformity for
which history indicates a disappointing and
disastrous end.”
Dealing with the argument that any interference with
the authority of the School Board would in effect make
Patna High Court CR. MISC. No.25589 of 2025 dt.17-06-2025
21/23
the court the School Board for the country as
suggested by Justice Frankfurter, Justice Jackson said:
“There are village tyrants as well as village
Hampdens, but none who acts under colour of law
is beyond reach of the Constitution…. We cannot,
because of modest estimates of our competence in
such specialities as public education, withhold the
judgment that history authenticates as the function
of this Court when liberty is infringed.”
Justice Jackson ended his opinion with the statement
“If there is any fixed star in our constitutional
constellation, it is that no official, high or petty,
can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith
therein. If there are any circumstances which
permit an exception, they do not now occur to us.
We think the action of the local authorities in
compelling the flag salute and pledge transcends
constitutional limitations on their power and
invades the sphere of intellect and spirit which it is
the purpose of the First Amendment to our
Constitution to reserve from all official control.”
23.Sheldon v. Fannin [221 F Supp 766 (1963)] was a
case where the pupils refused even to stand when the
National Anthem was sung. We do not have to
consider that situation in the present case since it is
the case of the appellants and it is not disputed that
they have always stood up and they will always stand
up respectfully when the National Anthem is sung.
24. Donald v. Board of Education for the City
Hamilton was again a case of objection by Jehovah’s
Witnesses to flag salutation and singing the National
Anthem. Gillanders, J.A., said:
“There is no doubt that the teachers and the school
board, in the case now being considered, in good
faith prescribed the ceremony of the flag salute
only with the thought of inculcating respect for the
flag and the Empire or Commonwealth of Nations
which events of recent years have given more
abundant reason than ever before to love and
respect. If I were permitted to be guided by my
personal views, I would find it difficult to
understand how any well disposed person could
offer objection to joining in such a salute on
Patna High Court CR. MISC. No.25589 of 2025 dt.17-06-2025
22/23religious or other grounds. To me, a command to
join the flag salute or the singing of the National
Anthem would be a command not to join in any
enforced religious exercise, but, viewed in proper
perspective, to join in an act of respect for a
contrary principle, that is, to pay respect to a
nation and country which stands for religious
freedom, and the principle that people may worship
as they please, or not at all.
But, in considering whether or not such exercises
may or should, in this case, be considered as
having devotional or religious significance, it would
be misleading to proceed on any personal views on
what such exercises might include or exclude.”
After referring to Jackson, J’s opinion in West Virginia
State Board of Education v. Barnette [87 Law Ed
1628, 1633 : 319 US 624, 629 (1943)] and some
other cases, it was further observed:
“For the court to take to itself the right to say that
the exercises here in question had no religious or
devotional significance might well be for the court to
deny that very religious freedom which the statute
is intended to provide.
It is urged that the refusal of the infant appellants
to join in the exercises in question is disturbing and
constitutes conduct injurious to the moral tone of
the school. It is not claimed that the appellants
themselves engaged in any alleged religious
ceremonies or observations, but only that they
refrained from joining in the exercises in
question. . . . To do just that could not, I think be
viewed as conduct injurious to the moral tone of the
school or class.”
25. We are satisfied, in the present case, that the
expulsion of the three children from the school for the
reason that because of their conscientiously held
religious faith, they do not join the singing of the
National Anthem in the morning assembly though they
do stand up respectfully when the anthem is sung, is a
violation of their fundamental right “to freedom of
conscience and freely to profess, practise and
propagate religion”.
28. In view of the aforesaid factual and legal
discussion, the entire complaint, along with notice dated
Patna High Court CR. MISC. No.25589 of 2025 dt.17-06-2025
23/23
04.04.2025 issued to “proposed accused” i.e. petitioner
appears contrary to established principles of law, by ignoring
legal provisions as available under sections 223 & 226 of the
B.N.S.S., which prima-facie not appear to be taken care of by
the learned Judicial Magistrate, accordingly, the entire
complaint with notice to the petitioner as “proposed
accused” with consequential proceedings, if any, is hereby
set-aside/quashed.
29. This quashing petition stands allowed.
30. Let a copy of this judgment be sent to the court
concerned/learned trial court forthwith.
(Chandra Shekhar Jha, J)
Rajeev/-
AFR/NAFR AFR CAV DATE 13.05.2025 Uploading Date 17.06.2025 Transmission Date 17.06.2025