ON JULY 5, the Andhra Pradesh High Court issued a circular directing all judicial magistrates to comply with the law laid down by the Supreme Court before remanding accused booked in cases pertaining to social media posts. The magistrates should confirm that the police officer conducted the mandated preliminary inquiry before lodging an FIR in such cases, as laid down in Imran Pratapgarhi v. State of Gujarat (2025), and recorded valid grounds for arrest, as required in Arnesh Kumar v. State of Bihar (2014). It was noted that the magistrates were remanding the accused in such cases without adhering to the principles laid down by the Supreme Court. Crucially, the High Court cautioned that magistrates who ignore these instructions can be held in contempt of court and face departmental action.
This circular implements a two-tier safeguard against frivolous FIRs and arrests for speech. First, Pratapgarhi requires the police to conduct a preliminary inquiry under Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita before even registering an FIR in cases of speech, writing, or artistic expression that carry imprisonment of 3 to 7 years. Second, the magistrate must verify that this police inquiry was conducted and that the Arnesh Kumar safeguards were strictly followed. These require the magistrate to be satisfied that there are specific grounds justifying custody such as repeated offences, a likelihood of witness intimidation, or a genuine need for custodial interrogation to prevent tampering with evidence. This layered review - first by police, then by courts, aims to prevent the misuse of criminal law to curb free speech.
Several courts have issued similar directions in the past few years. In 2021, the Madhya Pradesh High Court directed police authorities and judicial magistrates to implement the Arnesh Kumar guidelines in all cognizable offences punishable up to 7 years. However, these guidelines were merely persuasive. By contrast, the current circular makes the process mandatory for the magistrates and warns them of contempt proceedings in cases of non-compliance.
