Excerpt-
“There is prima facie evidence to suggest that the applicants had intended to outrage religious feelings “under the garb of standup comedy” while denying the bail application file by comedian Munnawar Faruqui, “Society’s coexistence must not be polluted by negative forces.”
Brief Facts-
The present case is a bail application under Section 439 of Cr.P.C., for grant of bail filed on behalf of the applicant Munnawar Faruqui who is in custody since 01/01/2021 for the offence punishable under sections 295A, 298, 269, and 188/34 IPC in lieu of the complaint filed by the prosecution Eklavya Singh Gaud. The complainant in the complaint had alleged that he is a custodian of the Hindu Protection Congregation (Sanghatan). On 01/01/20201, a standup comedy show was organized at Munro Cafe, (56 Shops) Indore without following any Covid-19 guidelines where the comedians were cutting inappropriate jokes on Hindu religion Gods and Goddesses and BJP National President, Amit Shah. As a result of which the religious sentiments of the complainant were hurt. An application under section 437 Cr.P.C., filed by them has been rejected by the Magistrate on 02/01/2021 and a bail application filed under section 439 Cr.P.C., has also been rejected by the Court below by the impugned order.
Petitioner’s Arguments-
The accused pleaded before the Hon’ble Court that the case has been registered in a fraudulent manner against them. The ingredients of Section 295A IPC are not violated. The cracking of jokes on political leaders will not attract any offence, in view of Article 19(1) (a) of the Constitution of India, as it enshrines freedom of speech and expression. Even otherwise, the offence is triable by Judicial Magistrate First Class and the maximum punishment for the offence is three years, therefore, it was pleaded there is no necessity of their judicial remand.
Learned counsel for the applicant further submits that the applicant is innocent by citing several cases like Deepak Nagle Vs. State of M.P where the Hon’ble High Court at Main Seat Jabalpur granted interim protection to the applicants under section 438 Cr.P.C., Mahendra Singh Dhoni Vs. Yerraguntla Shyamsundar and another, 2017 (7) SCC 60 which held that every act of insult to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class will not fall in the domain of section 295A IPC. The applicant pleaded to have no criminal antecedents. The applicant requested to be released on bail on such terms and conditions, as the Hon’ble Court deems fit and proper.
Respondent’s Arguments
The public prosecutor submits that the accused have been involved in the commission of the crime. The clippings of the show and speech extracts of the applicant and his associates have been submitted. Learned counsel cites the case of Amish Devgan Vs. Union of India (2021) 1 SCC 1; Aman Kumar Vs. State of Haryana (2004) 4 SCC 379 where it was held that “an attempt is to be punishable because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is same as if he had succeeded”. Learned counsel makes a few contentions that the accused persons have deliberately made indecent jokes against Hindu gods while also making such jokes on social media, despite protests by Hindu devotees. As the accused persons deliberately with mala fide intention hurt the religious sentiments of the people and incited communal riots, mens rea is also established. Learned counsel calls the applicant and his associates to be highly influential people and Urban Naxals who are hurting religious sentiments of Hindus under the name of freedom and expression. As the applicant has criminal antecedents and a tendency to hurt religious sentiments of a particular class of citizens, if released on bail pending investigation and process of collection of more incriminating material, the same shall be seriously jeopardized.
Court’s observation
From Article 51A, the court stated that there should be harmony and brotherhood irrespective of the various diversities present and our rich heritage should be valued and preserved. The case of M.C.Mehta Vs. Union of India and others (2003) 5 SCC 376 was also referred to which stated there should be a balance between one’s liberty and the duty one owes to others. The court moved onto Mens rea and how the discourse was intended is of more importance. The court cited the case of Ramji Lal Modi vs. the State of U.P., AIR 1957 SC 620 wherein it is mentioned that Section 295A IPC penalizes such acts of insults or those varieties of attempts to insult the religion or the religious beliefs of that class which perpetrated with the deliberate and malicious intention of outraging religious feelings of that class. The evidence/material collected suggests that the applicant with deliberate intent made “scurrilous, disparaging utterances, outraging religious feelings of a class of citizens of India”.
Judgement
Keeping in mind the material seized, the statements of the witnesses, and that the investigation is in progress, no case is made out for grant of bail.
