How I Would Defend Santosh Pandit: When Offensive Speech Becomes a Criminal Case, the First Question Is Not “Did He Offend?” — It Is “Where Is the Offence?”

Free Speech And The Rule Of Law

“The real test of free speech is not whether we protect words we agree with. It is whether we protect the law when the words offend us. Because once the State can punish a voice merely for being unpleasant, tomorrow it may not ask whether you are guilty—it may only ask whether you are inconvenient.”

— Adv. Tarun Choudhury

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Supreme Court Advocate | 25+ Years of Legal Experience

There is something deeply unsettling about a citizen being taken away from his home in the middle of the night.

It becomes even more unsettling when the person is a social-media commentator whose principal tools are a camera, a microphone and a willingness to confront people in public life.

But after more than 25 years in the legal profession, I have learned one thing very clearly:

A courtroom cannot be governed by emotion. It must be governed by law.

So I want to approach the Santosh Pandit case differently.

I am not interested in deciding whether Santosh Pandit is a hero, a troublemaker, an activist, an influencer or a man who sometimes crosses the line.

Those are questions for public opinion.

My question as a lawyer is much narrower—and much more important:

If I were representing Santosh Pandit before the court, how would I defend him?

My answer is simple:

I would not defend every word he may have spoken. I would defend the legal process by which the State seeks to take away his liberty.

That distinction could ultimately decide this case.

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The Midnight Arrest

According to reports, Pune Police arrested Santosh Pandit in the early hours of September 3, 2026, after complaints concerning videos allegedly containing obscene, sexually suggestive, abusive and defamatory remarks involving Maharashtra Minister Chandrakant Patil and a woman corporator. The Kothrud FIR reportedly invokes Sections 75(1)(iv), 75(3), 356(2) and 352 of the Bharatiya Nyaya Sanhita, along with Section 67 of the Information Technology Act.

A separate case had already been registered at Deccan Gymkhana Police Station concerning alleged remarks against Chandrakant Patil. That case reportedly invokes Sections 356, 296 and 3(5) BNS. Importantly, police had reportedly earlier served Pandit a notice asking him to cooperate with that investigation.

The Kothrud case is therefore not occurring in isolation.

That chronology matters.

But chronology is not proof of guilt.

And political controversy is not proof of police misconduct.

Both sides must ultimately be tested against evidence.

My First Principle: Separate “Offensive” From “Criminal”

If I appeared for Santosh Pandit, I would not begin by saying:

“He is an activist.”
“He was criticising the government.”

And I would certainly not begin by alleging political vendetta unless evidence supported it.

I would begin much more quietly:

“My Lords, please separate what is offensive from what is criminal.”

That is the heart of the matter.

A statement may be rude.

It may be crude.

It may be insulting.

It may be politically provocative.

It may even be deeply unpleasant.

But the criminal law does not punish every unpleasant expression.

The prosecution must take the next legal step.

It must establish:

What exactly was said?
Who was it directed at?
In what context?
What did it mean?
Which statutory provision is attracted?
What ingredient of that provision is satisfied?
What evidence proves that ingredient?

And, separately:

Why was arrest necessary?

Those are the questions I would put at the centre of the defence.

I Would Not Make the Mistake of Saying the Midnight Arrest Was Automatically Illegal

This is important.

An arrest at 1 a.m. is visually disturbing.

It may raise legitimate questions.

But the hour of arrest, by itself, does not establish illegality.

Nor would I tell the court that failure to issue a Section 35(3) BNSS notice automatically makes every subsequent arrest void.

That would be an overstatement.

The law is more nuanced—and the nuance actually gives the defence a stronger argument.

The 2026 Supreme Court Judgement That Changes the Arrest Argument

The Supreme Court’s January 2026 decision in Satender Kumar Antil v. Central Bureau of Investigation, 2026 INSC 115, is now one of the most important authorities for this case.

The Court clarified the relationship between Section 35(1)(b) and Section 35(3) BNSS.

For offences punishable with imprisonment up to seven years:

Notice under Section 35(3) is the rule; arrest is the exception.

The Court held that the police must first ask themselves whether arrest is actually necessary. Arrest cannot become a matter of routine or investigative convenience. The Court further held that the statutory conditions under Section 35(1)(b) must exist and that arrest must be based upon objective necessity, not merely the subjective preference of the investigating officer.

This is extraordinarily relevant here.

The reported Kothrud offences carry maximum punishments below seven years.

So I would ask:

Where is the objective necessity for arrest?

Notice Is the Rule. Arrest Is the Exception.

The Supreme Court has now put considerable emphasis on this principle.

The police can arrest.

But the existence of the power to arrest is not the same thing as the justification for exercising it.

That distinction is fundamental.

The Court in Satender Kumar Antil explained that investigation can continue without arrest and that arrest is an investigative tool—not an inevitable consequence of registration of an FIR.

Therefore, I would not ask the prosecution merely:

“Why did you arrest him?”

I would ask something much more precise:

Why was arrest necessary?
What evidence existed before the arrest?
What statutory condition under Section 35(1)(b) was satisfied?
Why was a notice insufficient?
Was there a genuine risk of absconding?
Was there a genuine risk of evidence destruction?
Was there a genuine risk of influencing witnesses?
Was there a genuine risk of repetition?
What investigative task could not have been performed without custody?

Those questions are far more powerful than a political allegation.

The Digital Evidence Paradox

There is an interesting paradox in this case.

The prosecution’s case is substantially based upon digital material.

The alleged offences arise from videos uploaded to social media.

The police themselves are reportedly examining the videos, their circulation and their reach.

But digital evidence has one unusual characteristic:

It can often be preserved without imprisoning the person who allegedly created it.

The prosecution can potentially:

preserve URLs;
download the videos;
create forensic images;
calculate hash values;
obtain platform records;
examine metadata;
seize devices through lawful process;
seek relevant account information;
Obtain electronic records through legally recognised procedures.

Therefore, I would ask:

What exactly requires Santosh Pandit’s physical custody?

That is not the same as saying custody can never be necessary.

If the police can demonstrate a genuine custodial investigative requirement, the court can consider it.

But the answer must be specific.

“Investigation is pending” is not an explanation.

“Custodial interrogation is required” is a conclusion.

The defence should demand the reason behind the conclusion.

And There Is a Particularly Interesting Chronology

In the Deccan Gymkhana case, police reportedly served Pandit a notice to cooperate with the investigation.

Then, in the later Kothrud case, he was reportedly taken from his residence around 1 a.m.

I would not say:

“Therefore the second arrest was illegal.”

That does not follow automatically.

Instead I would ask:

What materially changed between the two cases?
Did the evidence change?
Did the alleged offence change?
Did the accused’s conduct change?
Did Pandit fail to cooperate?
Was there new evidence suggesting intimidation, destruction of evidence, abscondence or repetition?

If the answer is yes, the State can explain it.

If the answer is no, the difference in treatment becomes relevant to the question of whether custodial arrest was genuinely necessary.

That is how a lawyer should use chronology.

Not as rhetoric.

As evidence.

BNS Section 75: The Most Serious Substantive Issue

The Kothrud FIR reportedly invokes Section 75(1)(iv) read with Section 75(3) BNS concerning sexually coloured remarks.

This is serious.

And I would not trivialise it.

But precisely because it is serious, I would demand precision.

The prosecution should identify:

The exact words.

Not a description such as “obscene remarks”.

Not a newspaper summary.

Not an allegation that the video was “lewd”.

The actual words.

Then:

Who was the target?
What was the context?
What did the words mean?
Were they genuinely sexual in character?
Were they directed at the woman corporator?
Were they directed at a male politician?
Were they political satire?
Were they allegations?
Were they merely abusive?

Those distinctions matter.

I Would Not Deny an Uncomfortable Fact If the Video Shows It

This is where responsible advocacy differs from propaganda.

If the original video clearly shows Santosh Pandit making an unmistakably sexualised and humiliating statement about a woman, I would not stand before the court and pretend that it was merely “political criticism”.

That would destroy the credibility of the defence.

I would instead focus upon:

the precise statutory ingredients;
attribution;
context;
intention;
evidence;
proportionality;
arrest necessity;
bail.

A lawyer’s duty is not to deny reality.

It is to place reality within the correct legal framework.

IT Act Section 67: Obscenity Has a Legal Test

The prosecution also invokes Section 67 of the Information Technology Act.

This provision concerns electronic publication/transmission of material that is, among other things, lascivious, appeals to prurient interest, or tends to deprave and corrupt persons likely to see or hear it.

Therefore:

“It contains bad words” is not the complete legal test.

The Supreme Court’s obscenity jurisprudence is important.

In Aveek Sarkar v. State of West Bengal, the Court adopted a contemporary community-standards approach.

In Apoorva Arora v. State (NCT of Delhi), the Supreme Court reaffirmed that vulgarity or profanity cannot simply be equated with obscenity and that context matters.

The communication must be assessed as a whole rather than through isolated words or sentences.

Therefore, I would insist upon placing the complete video before the court.

Not a clipped 20-second excerpt.

Not a screenshot.

Not an allegation in the FIR.

The whole communication.

Context Is Not a Technicality. Context Is Evidence.

Suppose a video contains the sentence:

“This minister has behaved disgracefully.”

That is obviously different from:

“This minister stole ₹50 crore.”

And both are different from a sexually explicit personal remark.

And all three are different again from a direct threat.

Yet social media disputes frequently collapse all of these into one word:

“Objectionable.”

The criminal law cannot operate at that level of vagueness.

My Digital Speech Forensic Matrix

If I were conducting the defence, I would prepare a document for every disputed video.

It would look something like this:

Question	Defence Analysis
Exact words	Verbatim transcript
Timestamp	Precise location in video
Target	Person allegedly referred to
Context	Complete surrounding passage.
Subject	Civic/political/personal
Prosecution allegation	Exact charge
Statutory ingredient	What must legally be proved
Evidence	What prosecution relies upon
Defence evidence	What contradicts it?
Precedent	Relevant Supreme Court authority
Defence conclusion	Why is the ingredient not satisfied?

This is what I would call a digital speech defence matrix.

It is not a new legal doctrine.

It is a new method of organising the defence.

And sometimes good litigation is not about inventing new law.

It is about organising existing law so clearly that the real issue becomes impossible to avoid.

BNS Section 352: An Insult Is Not Automatically Section 352

Section 352 concerns intentional insult with the necessary intention or knowledge concerning provocation and breach of peace.

Therefore, the prosecution must establish more than:

“He abused someone.”

The Supreme Court’s jurisprudence under the predecessor provision has emphasised that mere abuse does not automatically satisfy the offence; the statutory ingredients involving provocation and the likelihood of breach of peace must be established.

So I would ask:

Who was provoked?
How was the provocation caused?
What breach of peace occurred or was likely?
What evidence establishes the necessary intention or knowledge?

A democracy inevitably contains angry speech.

If every insult became Section 352, the criminal justice system would become an enormous complaints department for hurt feelings.

That cannot be the legal standard.

Criminal Defamation Requires a Different Analysis

Now we come to BNS Section 356.

This is where I would be particularly careful.

Criminal defamation contains statutory exceptions.

Among them are protections concerning truth where publication is for public good and good-faith opinion concerning the conduct of a public servant in discharge of public functions or matters of public concern.

That is highly relevant when the subject matter involves:

roads;
potholes;
civic infrastructure;
public projects;
elected representatives;
public administration;
government performance.

But there is an important qualification.

Truth is not an automatic magic word.

The statutory exception concerning truth contains the additional public-good requirement.

And an allegation of fact is different from an opinion.

For example:

“The administration has failed the people.”

is essentially evaluative.

Whereas:

“The minister stole ₹50 crore.”

is a specific factual allegation.

The defence should never confuse the two.

The “Person Aggrieved” Question

There is another issue that deserves examination.

Reports identify Sarika Kamble as the complainant in the Kothrud matter, while the alleged targets include Chandrakant Patil and a woman corporator.

BNSS Section 222 contains a specific restriction concerning cognisance of criminal defamation and refers to a complaint by a person aggrieved.

I would therefore examine:

Who is allegedly defamed?
Who filed the complaint?
What personal legal interest does the complainant assert?
Is the complainant the person allegedly defamed?
If not, what is the statutory basis for treating her as a person aggrieved?

But again, I would not make the reckless argument that this automatically destroys the FIR.

Why?

Because the FIR also contains cognisable allegations, and BNSS Section 174 contains provisions dealing with cases involving multiple offences where at least one is cognisable.

Therefore the stronger argument is:

The presence of a cognisable offence in the FIR does not erase the separate statutory requirements governing criminal defamation and eventual cognisance.

That distinction is critical.

The Special Procedure Where a Minister Is Allegedly Defamed

BNSS Section 222 also contains a special mechanism in cases involving alleged defamation of a minister or certain public servants concerning conduct in discharge of public functions.

That raises another set of questions:

Was the alleged imputation about the minister personally or about his official conduct?
Who initiated the complaint?
At what stage is cognisance being sought?
Has the special statutory procedure been followed?

This may become particularly significant at the cognisance stage.

An Important Safeguard Many People Overlook: Section 223 BNSS

There is another procedural safeguard which deserves attention.

The BNSS now contains a significant provision concerning the hearing of an accused before a magistrate takes cognisance upon a complaint.

The Supreme Court in 2026 INSC 519 has held that the first proviso to Section 223(1) BNSS—which gives an accused an opportunity of being heard before cognisance—is substantive in nature and forms part of the accused’s fair-trial rights under Article 21. The Court held that cognisance taken without compliance with that mandatory safeguard is void ab initio.

This does not mean Section 223 automatically applies to the present FIR investigation in the same way.

But if any portion of the matter proceeds through a complaint route requiring judicial cognisance, this safeguard must be carefully examined.

That is why an experienced defence lawyer should think not only about today’s arrest but also about tomorrow’s cognisance proceedings.

The Deccan Gymkhana FIR Needs Its Own Defence

The second FIR reportedly invokes Sections 356, 296 and 3(5) BNS.

I would not merge this case with the Kothrud case merely because the political subject matter overlaps.

The evidence must be separated.

Section 296: Public Place Matters

Section 296 concerns obscene acts or obscene words/songs in or near a public place to the annoyance of others.

Reports say the video in the Deccan matter was shot near SNDT College on Karve Road.

But:

A video being shot in a public location does not automatically establish every ingredient of Section 296.

The prosecution must establish the actual statutory elements.

What exactly happened?
Where?
Who was present?
What exactly was said?
Was it an act or utterance covered by the provision?
Who was annoyed?
How is that proved?

Again, the adjective “obscene” cannot substitute for the statutory test.

Section 3(5): Common Intention Is Not Guilt by Association

If Pandit is prosecuted along with another person, Section 3(5) must not become a shortcut.

The prosecution must establish the substantive offence first and then establish the common intention necessary to attribute the act.

The defence should ask:

What did Santosh Pandit personally do?
What did the other accused personally do?
What evidence establishes their common intention?

A person cannot be criminally liable merely because he knows another person or appears in the same video.

The Digital Evidence Question Will Become Increasingly Important

Modern criminal litigation is increasingly becoming litigation over:

screenshots;
recordings;
metadata;
account ownership;
editing;
timestamps;
authenticity.

The Bharatiya Sakshya Adhiniyam contains specific provisions governing electronic records, including Section 63.

Recent judicial decisions have stressed that the mere production of an electronic record does not automatically establish its authenticity, integrity and reliability.

Therefore, the defence should preserve:

original videos;
complete versions;
URLs;
upload dates;
timestamps;
screenshots;
captions;
thumbnails;
metadata where available;
original devices;
forensic hash values;
account ownership information.

The defence must be prepared for the possibility of:

selective clipping;
editing;
translation differences;
misleading captions;
context being removed.

Did Santosh Actually Publish the Content?

This is another question that should not be assumed.

If the prosecution says:

“The video was uploaded on account X.”

Then the prosecution must ultimately establish the connection between the accused and that account.

That may be easy if Pandit admits ownership.

But if disputed, the defence should examine:

account control;
device evidence;
platform records;
login information;
admissions;
forensic evidence;
upload history.

The defence should never allow authorship to become an assumption merely because a social media account carries a particular name.

Millions of Views Do Not Prove Guilt

The complaint reportedly refers to very high view counts—approximately 4.53 lakh views for one video and more than 12.16 lakh for another.

Those figures may establish reach.

They do not establish:

obscenity;
sexual harassment;
defamation;
intention;
provocation;
guilt.

Virality is not a statutory ingredient.

Indeed, there is a strange lesson here:

The fact that a video was seen by millions does not make it more criminal; it makes accurate legal characterisation more important.

The Grounds of Arrest Are Crucial

I would obtain the written grounds of arrest immediately.

BNSS Section 47 requires the arrested person to be informed of the particulars of the offence or the grounds for arrest, subject to the statutory framework.

The Supreme Court has repeatedly emphasised that meaningful communication of the grounds of arrest is a constitutional safeguard.

The distinction is important.

A document saying:

“Arrest is required for investigation.”

is not necessarily the same thing as explaining:

Why this particular accused had to be arrested.

That distinction can determine whether the accused had a meaningful opportunity to challenge custody.

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My Arrest Document Audit

Before filing the strongest High Court petition, I would obtain:

Complete FIR
Original complaint
Arrest memo
Written grounds of arrest
Section 35(3) notice, if any
Reasons recorded for arrest
Section 35 checklist
Case diary material concerning arrest necessity
Remand application
Magistrate’s remand order
Device seizure memo
Forensic examination request
Medical examination report
Record of intimation to family/friend
Complete original videos

Only after examining these documents would I call the arrest legally defective.

The Remand Order Deserves Independent Scrutiny

The arrest and remand are not the same thing.

Even if the original arrest survives challenge, continued police custody requires judicial consideration.

The magistrate should examine:

What remains to be investigated?
Why is police custody necessary?
What recovery is expected?
Why cannot that recovery be achieved through ordinary investigative methods?
Why cannot the accused cooperate while on bail?

A remand order should not become a rubber stamp.

The BNSS Has Changed the Police-Custody Equation

There is another important point that should not be overlooked.

Section 187 BNSS permits police custody of up to 15 days in the aggregate, but unlike the old CrPC structure, the statute permits that police custody to be taken in parts during the prescribed initial period of detention. For offences falling within the 60-day category, the relevant window is the initial 40 days.

The Supreme Court in July 2026 also clarified that BNSS permits police custody in parts within the statutory window, subject to the overall statutory limit.

Why Does This Matter?

Because the defence must not assume:

“If we stop police custody today, the police can never ask for it again.”

Under the BNSS, the custody architecture is more complicated.

Therefore, if Pandit is released, the bail order should be drafted intelligently, and the defence should remain alert to any subsequent attempt to seek further custody.

The 60-Day Default-Bail Clock Must Also Be Watched

For offences falling within the “other offences” category, Section 187(3) provides a 60-day outer period for completion of investigation before the statutory default-bail mechanism arises, subject to the conditions of the provision.

This is not an immediate argument, because Pandit has only recently been arrested.

But an experienced defence team should diarise it from day one.

Criminal defence is partly about winning today’s hearing and partly about not missing tomorrow’s statutory right.

Bail: I Would Make It a Necessity-and-Liberty Application

I would not file a bail application that merely says:

“My client is innocent.”

At the bail stage, that is rarely enough.

I would build it around:

The alleged evidence is predominantly electronic.
The principal videos can be preserved independently.
The accused is willing to cooperate.
There is no demonstrated necessity for continued custodial interrogation.
The offences carry relatively limited maximum punishments.
Any legitimate concern can be addressed through conditions.
The arrest must independently satisfy Section 35 BNSS.
Personal liberty under Article 21 cannot become collateral damage to investigative convenience.

I Would Offer Strict Bail Conditions

I would tell the court:

“My client is prepared to cooperate.”

And then put it into concrete terms.

He can undertake:

to appear before the Investigating Officer when lawfully required;
to preserve relevant digital material;
to produce devices as legally required;
not to contact complainants;
not to intimidate witnesses;
not to interfere with investigation;
to attend court;
to furnish his address;
to comply with reasonable conditions.

This is strategically important.

The defence is not saying:

“Do not investigate.”

It is saying:

“Investigate—but show why incarceration is necessary.”

The Most Important Advice I Would Give Santosh Pandit Personally

I would tell him:

Stop Talking About the Case on Social Media.

Immediately.

Do not attack:

the complainant;
the police;
the Minister;
witnesses;
the Magistrate;
the investigation.

Do not repeat disputed allegations as established facts.

Do not upload a video accusing the government of conspiracy unless there is evidence and counsel has advised you.

Why?

Because a single new video can create an entirely new legal problem.

A good lawyer does not merely defend yesterday’s conduct.

A good lawyer prevents tomorrow’s evidence from being created against his own client.

Article 19 Is Important—but It Is Not a Magic Wand

Freedom of speech under Article 19(1)(a) is central to this case.

But I would never argue:

“Article 19 allows him to say anything.”

It does not.

Article 19(2) permits constitutionally recognised restrictions.

Criminal defamation jurisprudence also demonstrates that freedom of speech must coexist with protection of reputation.

Therefore, I would make the constitutional argument more carefully:

The State must identify the precise legal restriction, establish the ingredients of the offence and exercise coercive criminal powers proportionately.

That is the constitutional argument worth making.

The Santosh Pandit Case Is Not a Referendum on Whether He Is a Good Man

This is perhaps the most important philosophical point.

A criminal court is not asked:

Is Santosh Pandit a good man?
Is he a responsible influencer?
Does the minister like him?
Does the public like his videos?

The court is asked:

Has a legally recognised offence been disclosed and, where necessary, proved?

And at the arrest stage:

Was taking away his liberty legally justified and objectively necessary?

Those are different questions.

The Political-Vendetta Argument: Use It Carefully

Opposition leaders have alleged that the police action is an attempt to suppress dissent and criticism of the government. Those are political allegations, not established judicial findings.

As a lawyer, I would not make political motive the foundation of the case.

I would collect objective evidence.

For example:

chronology of complaints;
timing of arrest;
previous notices;
inconsistent investigative treatment;
exact reasons recorded for arrest;
sequence of FIRs;
identity of complainants;
statements by public officials;
evidence concerning selective enforcement.

Then I would let the court draw its own conclusions.

That is far more powerful than shouting “vendetta”.

The Strongest Defence Is Not Political. It Is Forensic.

Imagine placing before the court a single table:

Prosecution Says	Defence Asks
“Obscene video”	What exact material satisfies Section 67?
“Sexual harassment”	What exact words satisfy Section 75?
“Defamation”	What exact imputation? Who is the person aggrieved?
“Intentional insult”	Where is the statutory provocation/breach-of-peace nexus?
“Custody necessary”	What investigative act requires custody?
“Evidence may be destroyed.”	Which evidence is actually vulnerable?
“He may repeat it.”	Can a reasonable bail condition address the concern?
“He has influence.”	Where is the concrete risk of interference?

Suddenly the political temperature drops.

The court is left with legal questions.

That is where I want the case to be.

The “Four-Layer” Defence I Would Use

My defence would operate on four separate layers.

Layer One — Legality of Arrest

Was Section 35 complied with?
Was notice required?
If notice was not given, why?
Was arrest objectively necessary?
Were reasons recorded?
Were grounds of arrest meaningfully communicated?

Layer Two — Necessity of Custody

What investigative purpose requires physical custody?
What evidence is sought?
Can it be preserved independently?
Can questioning occur without continued incarceration?

Layer Three — Ingredients of Offence

For each disputed communication:

Exact words → context → target → meaning → statutory ingredient → evidence.

Layer Four — Constitutional Protection

Where the expression concerns public affairs:

Article 19(1)(a) → Article 19(2) → statutory offence → proportionality → Article 21.

This prevents the defence from becoming a simplistic free-speech argument.

My Proposed Digital Speech Defence Matrix

I would go one step further.

I would prepare a digital speech defence matrix for every disputed communication.

Each statement gets a separate row.

Statement	Exact Words	Target	Context	Alleged Offence	Required Ingredient	Evidence	Defence
Statement 1	Exact words.	Target.	Context.	Alleged offence.	Required ingredient.	Evidence.	Defence.
Statement 2	Exact words.	Target.	Context.	Alleged offence.	Required ingredient.	Evidence.	Defence.

And so on.

Why?

Because a prosecution should not be permitted to combine ten different statements and call the whole video “obscene and defamatory”.

Every statement must survive its own legal test.

The “Context Envelope” Technique

For every disputed sentence, I would preserve:

60 seconds before the statement.
The statement itself.
60 seconds after the statement.
The full video.
Caption and thumbnail.
Upload information.
Relevant surrounding posts.

This creates what I would call a context envelope.

It prevents a legally significant statement from being judged in a vacuum.

Again, this is not a new statute.

It is a litigation method.

The Three Most Important Questions for the Prosecution

If I had only three minutes before the court, I would ask three questions.

Question One

What exact words constitute the alleged offence?

Question Two

How do those exact words satisfy every ingredient of the particular statutory provision?

Question Three

What exact investigative necessity required the custodial arrest of Santosh Pandit rather than notice and controlled cooperation?

Those three questions go to the heart of the case.

What I Would Never Do

I would never say:

❌ “Politicians have no right to reputation.”
❌ “Everything said about a politician is protected speech.”
❌ “Midnight arrest is automatically illegal.”
❌ “No Section 35 notice automatically nullifies the arrest.”
❌ “Truth automatically defeats defamation.”
❌ “Vulgarity can never constitute obscenity.”
❌ “A woman complaining does not make Section 75 applicable.”
❌ “The entire FIR is void because the defamation complainant may not be the person allegedly defamed.”
❌ “Previous FIRs prove nothing whatsoever.”
❌ “Political vendetta is established.”

These arguments are too broad.

And broad arguments are easy for a prosecution to destroy.

What I Would Do Instead

I would say:

Show me the exact words.
Show me the exact context.
Show me the exact victim.
Show me the exact statutory ingredient.
Show me the evidence.
Show me the necessity for arrest.
Show me the necessity for custody.

And if the prosecution cannot answer those questions, I would ask the court to protect the accused’s liberty.

If the FIR Itself Does Not Disclose the Offence

There is another important distinction.

At the High Court stage, I would not ask the court to conduct a mini-trial.

The Supreme Court’s well-established Bhajan Lal principles permit quashing in appropriate cases where, for example:

allegations taken at face value do not constitute an offence;
the allegations do not disclose the necessary ingredients;
proceedings are legally barred;
the allegations are inherently improbable;
The proceeding amounts to abuse of process.

But disputed facts ordinarily require evidence.

Therefore, I would divide the case into two categories.

Category A

Legal defects visible from the FIR itself.

These are suitable for an early quashing challenge.

Category B

Factual disputes requiring examination of evidence.

These may be better suited to trial, discharge or evidentiary proceedings depending upon the stage.

That distinction prevents the High Court petition from becoming vulnerable to the argument that the defence is asking the court to conduct a mini-trial.

My Strategy for Quashing

I would consider a petition under the High Court’s inherent jurisdiction under Section 528 BNSS only after examining the actual FIR and evidence.

The strongest possible grounds would be:

Ground 1

The allegations, even if accepted at face value, do not satisfy the statutory ingredients.

Ground 2

The particular section is legally inapplicable to the alleged conduct.

Ground 3

The proceeding is procedurally barred at the relevant stage.

Ground 4

The prosecution is attempting to criminalise conduct that the statute does not criminalise.

Ground 5

There is demonstrable abuse of process.

But I would not file a blanket “everything is political” petition.

That is not how serious constitutional litigation is won.

What About the April Case?

Reports state that Pandit had also been booked in April 2026 over allegations involving a female journalist.

I would obtain that FIR.

But I would not allow the prosecution to turn:

“There was an earlier FIR.”

into:

“Therefore he is guilty now.”

An FIR is an allegation.

A conviction is a judicial finding.

They are not interchangeable.

At the same time, I would not conceal the earlier case.

If the prosecution relies upon it, the defence should be ready with its exact procedural status.

The Biggest Risk to the Defence

Let me be completely honest.

If the original videos contain:

unmistakable sexual humiliation of a woman;
explicit sexualised remarks;
genuinely obscene electronic material satisfying Section 67;
direct criminal threats;
knowingly false factual allegations made with the requisite defamatory intent;

Then the defence becomes significantly harder.

No experienced lawyer should pretend otherwise.

But even then, the legality and necessity of arrest remain separate questions.

A difficult substantive case does not automatically create a right to unnecessary custody.

That distinction is fundamental.

The Most Dangerous Mistake Pandit Could Make Now

The prosecution’s best friend could be Santosh Pandit’s own social media account.

If, after arrest, he uploads:

“The government is scared of me.”
“The minister has got me arrested because I exposed him.”
attacks a complainant or witness,

The defence may have to deal with fresh allegations.

Therefore, my advice would be:

Let the lawyers speak in court. Let the evidence speak in the case. Let Santosh remain silent about the merits of the pending investigation.

Silence at the right moment is not weakness.

It is a litigation strategy.

The Larger Question Behind This Case

There is a bigger constitutional issue here.

India’s digital public sphere has created a new class of commentator.

They are not necessarily journalists.

They are not necessarily politicians.

They are ordinary citizens with cameras and audiences.

Some perform valuable civic functions.

Some investigate genuine public grievances.

Some exaggerate.

Some sensationalise.

Some cross the line.

The State must deal with genuine criminal conduct.

But the answer cannot be that every unpleasant political statement becomes a criminal investigation.

Nor can the answer be that social media popularity creates immunity from criminal law.

We need a principled middle ground.

My Proposed Reform: A “Digital Speech Arrest Review”

This case also suggests a practical institutional reform.

Whenever police propose to arrest someone primarily for online expression in a case involving offences punishable up to seven years, the investigating officer should complete a structured Section 35 review.

The officer should record:

Exact offence alleged.
Maximum punishment.
Whether Section 35(3) notice was considered.
If notice was not issued, why.
Which Section 35(1)(b) necessity ground exists.
Evidence supporting that conclusion.
Whether electronic evidence has been preserved.
Whether physical custody is genuinely required.
Risk of witness intimidation.
Risk of evidence destruction.
Risk of repetition.
Risk of abscondence.
Whether reasonable bail conditions can address the risks.

This would not prevent legitimate arrests.

It would make unnecessary arrests harder to justify.

And that is exactly what the Supreme Court’s 2026 Satender Kumar Antil judgement is trying to achieve.

If I Were Standing in Court Tomorrow

I would probably say:

“My Lords, I am not asking this Court to decide whether my client is a gentleman.”

“I am not asking this Court to approve every word he may have spoken.”

“I am asking the court to apply the law.”

“Identify the words.”

“Identify the target.”

“Identify the context.”

“Identify the statutory ingredient.”

“Identify the evidence.”

“And then, separately, identify the necessity for arrest.”

“Because the power to arrest and the necessity to arrest are not the same thing.”

That, in my view, is the correct way to defend Santosh Pandit.

My Final Assessment

After examining the reported facts, the statutory framework and the latest Supreme Court position, I do not regard Santosh Pandit’s case as a hopeless defence case.

But neither would I call it an automatic free-speech victory.

The strongest immediate defence is not political.

It is procedural, evidentiary and constitutional.

The defence should aggressively examine:

Section 35 BNSS

Was notice the appropriate course?
If not, what objectively justified arrest?

Section 75 BNS

What exact words constitute sexually coloured remarks?

Section 67 of the IT Act

Does the actual material satisfy the statutory obscenity test, rather than merely contain vulgar language?

Section 352 BNS

Where is the necessary provocation and breach-of-peace nexus?

Section 356 BNS

What exact imputation was made?
Who is the person aggrieved?
Do statutory exceptions apply?

BNSS Section 222

Has the statutory criminal-defamation procedure been properly followed at the relevant stage?

BNSS Section 223

If proceedings proceed by complaint and cognisance is sought, has the accused’s statutory right to be heard before cognisance been respected?

BNSS Section 187

Is continued police custody actually necessary, and is the statutory custody/default-bail timetable being properly monitored?

Bharatiya Sakshya Adhiniyam

Can the prosecution establish the authenticity, integrity and evidentiary reliability of the digital material it proposes to rely upon?

These are not technical distractions.

These are the defence.

The Four Questions That Could Decide the Case

If I had to reduce everything to four questions, they would be:

1. What exactly did Santosh Pandit say?

Not what the FIR says he said.

Not what social media says he said.

The actual words.

2. What did those words mean in their complete context?

Not a clipped excerpt.

Not an isolated sentence.

The entire communication.

3. Which exact statutory ingredient does each statement satisfy?

Every offence must stand independently.

4. Why did the State need his liberty?

Not why did the State need to investigate?

Why did it need to arrest him?

That fourth question is particularly important after Satender Kumar Antil.

And Here Is The Broader Lesson

The Santosh Pandit case is ultimately bigger than Santosh Pandit.

It is about what happens when social media, politics and criminal law collide.

A citizen can say something offensive.

A politician can feel insulted.

A woman can legitimately complain about sexualised abuse.

Police can legitimately investigate.

A court can legitimately punish a person who commits a proven offence.

All of those propositions can be true at the same time.

But there is one proposition that must remain equally true:

The State must take away a person’s liberty according to law—not according to anger, popularity, political pressure or investigative convenience.

That principle protects the complainant.

It protects the accused.

It protects the police.

It protects politicians.

And ultimately, it protects the credibility of the judiciary itself.

My Closing Thought

Over 25 years of practice have taught me that the best advocacy is rarely the loudest.

It is the ability to take an emotionally charged dispute and reduce it to the questions that law can actually answer.

The Santosh Pandit case is precisely such a test.

I would not ask the court to decide whether Santosh Pandit deserves applause.

I would not ask the court to decide whether Chandrakant Patil deserves criticism.

I would not ask the court to decide which political side is right.

I would ask something far more fundamental:

Where Is The Offence?

And once the prosecution identifies the alleged offence:

Where Is The Evidence?

And once the prosecution identifies the evidence:

Where Is The Statutory Ingredient?

And even if a prima facie offence is established:

Where Is The Necessity For Incarceration?

Because in a constitutional democracy, criminality and custody are two separate questions.

A person may be investigated without being imprisoned.
A person may be prosecuted without being convicted.
A person may be accused without becoming guilty.
A person may be unpopular without losing his constitutional rights.

That is not a defence of Santosh Pandit’s personality.

It is a defence of the rule of law.

And that is the defence I would take to court.

Need Experienced Legal Guidance?

Adv. Tarun Choudhury

Supreme Court Advocate | 25+ Years of Legal Experience

If you are facing criminal allegations, arrest, police investigation, bail proceedings, defamation claims, or complex constitutional and legal issues, experienced legal representation can make a critical difference.

📞 Call: 9650499965
💬 WhatsApp: 8851978611

Seek informed legal advice before making statements, responding to investigators, or taking any step that may affect your legal rights.

In my years of practice, I have increasingly believed that the finest advocacy is not about speaking the loudest. It is about identifying the precise legal question hidden inside an emotionally charged controversy.

The Santosh Pandit case presents exactly that challenge.

The question is not whether we approve of his words.

The question is whether the State has established the legal basis for taking away his liberty.

Frequently Asked Questions

Here are 5 SEO-friendly Frequently Asked Questions (FAQs) based on the article, designed around high-value legal search terms such as Santosh Pandit arrest, BNS Section 75, IT Act Section 67, bail, defamation, and freedom of speech:

1. Why Was Santosh Pandit Arrested in Pune in September 2026?

Santosh Pandit was arrested in connection with Pune police cases involving alleged obscene, sexually coloured, abusive and defamatory social media content concerning Maharashtra political figures.

Reports indicate that separate FIRs invoked provisions including BNS Sections 75, 356, 352 and 296, along with Section 67 of the Information Technology Act.

The allegations remain subject to investigation and judicial determination.

2. Can a person be arrested without receiving a notice under Section 35(3) BNSS?

Yes, but arrest is not supposed to be the automatic first step where the alleged offence is punishable with imprisonment of up to seven years.

Section 35(3) BNSS generally requires a notice to appear, while arrest is an exception that must satisfy the statutory conditions and be objectively necessary.

The Supreme Court has emphasised that police cannot use arrest merely as a routine investigative tool.

No. Offensive speech and criminal speech are not automatically synonymous.

Depending on the exact words, context, target, intention and surrounding circumstances, different provisions may or may not apply.

For example, BNS Section 352 requires intentional insult coupled with the requisite intention or knowledge concerning provocation and breach of peace, while BNS Section 356 involves the specific ingredients of criminal defamation.

Yes, Section 67 of the Information Technology Act can apply to electronic material that meets its statutory test of lasciviousness, appeal to prurient interest, or tendency to deprave or corrupt persons likely to see or hear it.

However, merely using vulgar, insulting or offensive language does not automatically establish obscenity.

Courts have repeatedly stressed the importance of examining the content as a whole and its context.

5. What Legal Remedies Are Available To Santosh Pandit After His Arrest?

After arrest, the defence can examine the legality of the arrest and remand, challenge non-compliance with BNSS arrest safeguards, seek regular bail under the BNSS, contest the necessity of further police custody, and, where legally justified, approach the High Court for relief under its inherent jurisdiction.

The defence can also scrutinise each FIR separately and challenge allegations that do not satisfy the essential ingredients of the offences charged.

Key Takeaways

Legal Issue	Key Takeaway
Santosh Pandit Arrest	Santosh Pandit was arrested in Pune over allegations relating to obscene, sexually coloured, abusive and defamatory social media content involving political figures.
Section 35 BNSS and Arrest	Police cannot treat arrest as an automatic investigative tool. For offences punishable up to seven years, Section 35(3) BNSS notice is generally the rule, while arrest is an exception requiring statutory conditions and objective necessity.
BNS Section 75	Allegations of sexually coloured remarks must be tested against the exact words used, the person targeted, the context, and the statutory ingredients of Section 75.
IT Act Section 67	Not every vulgar or offensive social media statement is legally “obscene”. Section 67 requires the electronic material to satisfy the statutory test of lasciviousness, prurient appeal, or tendency to deprave or corrupt.
Criminal Defamation Under BNS Section 356	Political criticism is not automatically criminal defamation. Courts must distinguish fact, opinion, criticism, truth, public good and defamatory imputation.
BNS Section 352	Mere abusive language does not by itself establish intentional insult. The prosecution must establish the statutory requirement relating to provocation and likelihood of breach of peace or another offence.
Digital Evidence Is Crucial	The defence should examine the complete original video, context, timestamps, captions, metadata, account ownership, editing, authenticity and electronic-record requirements, rather than relying on isolated clips.
Police Custody Must Have A Purpose	Where the evidence is predominantly digital and already available to investigators, the defence can question whether continued police custody is genuinely necessary for investigation.
Arrest Safeguards Matter	The legality of the arrest should be examined through the grounds of arrest, arrest memo, reasons for arrest, Section 35 compliance, relative/friend notification and production before a magistrate within the prescribed period.
Freedom of Speech Has Limits—But So Does Criminal Prosecution	Article 19(1)(a) protects freedom of speech and expression, while Article 19(2) permits reasonable restrictions. The central question is whether the specific speech satisfies the ingredients of a specific criminal offence.
Multiple FIRs Require Scrutiny	Where separate FIRs concern overlapping social media content, the defence should compare the allegations, videos, complainants and offences to determine whether there is duplication, overlapping transactions or abuse of criminal process.
Political Allegations Require Evidence	Claims of political vendetta or misuse of police power should not be assumed merely because the accused is politically controversial. The stronger legal approach is to establish the allegation through chronology, documents, arrest records, notices and objective investigative conduct.

Important Legal Disclaimer

This article is a legal analysis based on publicly reported information available as of September 4, 2026.

The final legal position must necessarily be reassessed after examining the certified FIRs, complaints, arrest memo, written grounds of arrest, Section 35 documentation, remand application, remand order, complete original videos and electronic evidence.

Nothing in this article should be understood as a finding of guilt or innocence.

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