Introduction:

In the matter of Vivek Pawar v. Sub Divisional Magistrate Bichhiya (WP-28112/2025 (CR)) the Madhya Pradesh High Court, through Justice Vishal Mishra, has directed the State to clarify whether a show cause notice was served to the petitioner before passing an order that declared him a habitual offender under Section 129 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The case arises from a plea filed by Vivek Pawar, a 50-year-old social worker from District Balaghat, who challenged the legality of preventive proceedings initiated against him based on an alleged objectionable Facebook comment regarding the Kumbh Mela in Prayagraj. The petitioner contends that the proceedings, which included a requirement to furnish interim and final bonds of ₹25,000 each for six months, were arbitrary, lacked due process, and were based on fabricated allegations of habitual offending. He alleges that the Sub-Divisional Magistrate (SDM) relied entirely on police-generated records without conducting an independent inquiry or providing the petitioner with any opportunity to present his case. Justice Vishal Mishra’s interim order dated July 23, 2025, has sought instructions from the State regarding the issuance of any show cause notice or the provision of an opportunity for the petitioner to be heard before invoking Section 129 of BNSS, 2023, with the matter scheduled for further consideration on July 24, 2025.

Arguments of Both Sides:

The petitioner, represented by advocates Aishwarya Choudhary, Malavika Prasad, Nikita Sonavane, Sagar Soni, Spoorthi Cotha, Maheshwari Mawase, and Tasveer Parmar, submitted that the entire preventive action was initiated on flimsy grounds, solely because of a single comment posted on Facebook that was mischaracterized as likely to incite communal unrest. The petitioner argued that the invocation of Section 129 of BNSS, 2023, was not only excessive but also unwarranted, as there was no evidence of any persistent unlawful behaviour that could justify classifying him as a habitual offender. He asserted that the SDM acted mechanically and relied solely on a complaint filed by the officer-in-charge of Police Station Bichhiya on January 17, 2025, without conducting an independent examination of facts. According to the petitioner, the police reproduced this complaint verbatim in the daily Roznamcha (station diary) and forwarded it to the SDM, who, without issuing any show cause notice or providing a hearing, directed him to furnish an interim bond of ₹25,000.

The petitioner further argued that when he appeared before the SDM to contest the bond requirement, his objections were dismissed, and he was placed under judicial custody due to his inability to furnish the interim bond. He was released only after a week, under compulsion, having been forced to comply without even being provided a copy of the complaint or any supporting evidence. In March 2025, the petitioner submitted a detailed reply challenging the preventive proceedings and enclosed documents highlighting his extensive record as a social worker, which, he argued, negated any claims of habitual offending. He also pointed out that out of the seven cases cited by the SDM to declare him a habitual offender, four were preventive in nature and did not indicate a pattern of criminal or unlawful conduct. The petitioner accused the SDM of misusing preventive provisions and violating principles of natural justice by denying him the right to cross-examine witnesses or challenge the evidence presented against him. He termed the final order dated March 18, 2025, reiterating police allegations as arbitrary, procedurally flawed, and unconstitutional. The petitioner thus sought the quashing of the SDM’s order, emphasizing that the absence of a show cause notice and hearing rendered the proceedings void ab initio.

The State, on the other hand, relied on the complaint filed by the officer-in-charge of the Bichhiya police station to justify the invocation of Section 129 of BNSS, 2023. According to the complaint, the petitioner’s Facebook comment was objectionable and potentially inflammatory, capable of disturbing communal harmony during the religiously sensitive period of the Kumbh Mela. The police further cited the petitioner’s history of prior cases to argue that his continued liberty posed a threat to public peace and security. The State’s representatives contended that preventive measures such as those under Section 129 are designed to preempt potential threats to law and order, and in this case, the petitioner’s conduct warranted such preventive action. It was argued that the petitioner’s refusal to furnish the interim bond justified the SDM’s decision to place him in judicial custody temporarily. While the State acknowledged the petitioner’s claim of being a social worker, it maintained that preventive proceedings are not punitive but protective, aimed at averting potential disturbances to public tranquility. However, during the hearing, Justice Vishal Mishra questioned whether any prior notice or opportunity of hearing was granted to the petitioner, directing the State’s counsel to clarify this aspect before the next date of hearing.

Court’s Judgment:

At this stage, the Madhya Pradesh High Court has not delivered a final ruling but has issued an interim order reflecting serious concerns over procedural lapses in the preventive proceedings initiated by the SDM. Justice Vishal Mishra, after hearing the petitioner’s counsel and examining the records, observed that the principle of natural justice—particularly the right to notice and hearing—appears to have been overlooked. The Court emphasized that preventive proceedings under Section 129 of BNSS, 2023, which empower executive magistrates to bind individuals by bonds to maintain peace, cannot be invoked mechanically without ensuring due process. The Court directed the State’s counsel to seek instructions regarding whether any show cause notice was served to the petitioner or whether he was given any meaningful opportunity to defend himself before the SDM. The case has been listed for further hearing on July 24, 2025, and the Court’s direction suggests that it will scrutinize whether the SDM’s order declaring the petitioner a habitual offender meets the statutory requirements under BNSS, 2023.

Justice Mishra also appeared to take cognizance of the petitioner’s argument that four of the seven cases cited against him were preventive in nature and did not amount to habitual offending as defined by law. The Court noted that while preventive measures are legitimate tools for maintaining public order, they must be exercised within the bounds of fairness, transparency, and legality. The interim order indicates that the Court is inclined to examine whether the SDM’s actions were arbitrary or violative of constitutional guarantees such as the right to personal liberty under Article 21. The petitioner’s contention that he was compelled to furnish bonds without being provided a copy of the complaint or supporting documents also raises serious procedural questions.

In preventive proceedings, the doctrine of audi alteram partem (hear the other side) is of paramount importance, and the High Court appears to be focusing on whether this principle was followed. The Court’s intervention highlights the judiciary’s role in checking misuse of executive powers, particularly in cases involving preventive detention or binding orders that curtail an individual’s liberty. If the State fails to demonstrate that due process was followed, the High Court may quash the SDM’s final order and issue directions to prevent such procedural lapses in the future.

The present case also underscores the growing tension between social media expression and preventive law enforcement. The petitioner’s Facebook comment, which he claims was innocuous or misinterpreted, has been treated by the police as a potential trigger for communal discord. The High Court is expected to carefully examine whether the comment in question met the threshold of incitement or whether the preventive proceedings were an overreach by the authorities. The outcome of this case could set a precedent on how social media comments are scrutinized under preventive laws and how authorities are expected to uphold the fundamental rights of individuals while maintaining public order.