In a couple of writ petitions filed before the Bombay High Court by Shekhar Suman and Bharati Singh to challenge the registration of First Information Reports (FIRs) against them for allegedly committing offences punishable under Section 295-A read with Section 34 of the Indian Penal Code, 1860 (IPC), a Single Judge Bench of Justice Amit Borkar quashed the impugned FIR holding that criminal law should not be invoked casually against artists or programme judges only because somebody feels insulted by a performance viewed out of context.
The impugned FIR was lodged after a complaint was lodged by the President of Raza Academy. Shekhar Suman was a judge on a programme – “Comedy Circus Ka Jadoo”, telecast on Sony Entertainment Television (SET), and Bharati Singh was a performing artist on the same programme. The FIR also referred to Multi Screen Media Private Limited (MSM), an Indian company that served as the exclusive distributor of the channels owned by MSM Satellite (Singapore) Pvt. Ltd. (MSM Singapore), a Singapore-incorporated company that owned SET.
On 29-11-2010, MSM received a notice from the Pydhonie Police Station, asking it to furnish details of the persons connected to the said programme and to require their presence for investigation. MSM expressed its willingness to cooperate with the investigating authorities and was informed that the complaint alleged that an episode telecast on 20-11-2010 contained certain expressions, including “Ya Allah! Rasgulla! Dahi Bhalla!”, which were perceived as offensive to the religious sentiments of the Muslim Community.
In the said episode, Bharati Singh performed a character styled as ‘Umrao Jaan’, and her performance included costume, dialogue, mannerisms, and linguistic elements that corresponded to the character’s historical setting. It was contended that the said phrase was used merely because of rhyming exclamations without any intention to insult or offend any religion or community. The petitioners contended that the complaint was made by a person who did not appear to have watched the programme himself and had only acted on representations allegedly received by the Raza Academy.
The Court found substance in the petitioner’s contention that no reasonable reading of the said episode would show a deliberate design to insult any religion or religious belief and stated that it could not ignore the context of the programme. The Court said that a comedy show is not judged by the same standards as a doctrinal speech or political statement.
It was noted that Section 295A of the IPC spoke about deliberate and malicious intention of outraging the religious feelings of a class of citizens, and the Court stated that to attract such a provision, both elements were necessary since the absence of either one would mean that the offence is not completely made out. The Court did not find any deliberate malicious intention on the part of either petitioner, and said that the performance was done in a theatrical manner with the object of entertainment.
The Court supported the petitioner’s assertion that the expressions ‘Dahi Bhalla’ and ‘Rasgulla’ were common food items consumed by people across communities and that they had no religious colour. The Court held that mere mention of food items in a comic act could not amount to an insult to religion, as there must be material to show that the words were selected as a weapon of offence. It was also stated that the offence felt by a section of viewers is not enough in law unless the mental element is also disclosed.
Further, the Court stated that a judge in a comedy show does not stand in the position of a speaker making a declaration against a religious group and that a performing artist also performs on stage as per the episode’s script. The Court found that the record failed to disclose that Shekhar Suman and Bharati Singh personally authored the expressions and said that the role attributed to them was too remote to bring them within the purview of offences alleged by the complainant.
The Court stated that no sanction was obtained as per Section 196 of the Code of Criminal Procedure, 1973 (CrPC), and that this omission affected the legality of the prosecution. It was stated that the present case was not one where the Court was asked to appreciate disputed evidence, and that compelling petitioners to face the rigour of criminal proceedings would be unjustified if the foundation was absent.
The Court also opined that criminal law should not be invoked casually against an artist or programme judge solely because someone felt insulted by a performance viewed out of context. It was said that the legal requirement of Section 34 was also not fulfilled since common intention cannot be assumed from the presence in a programme or participation in a televised act, and that there must be material of a shared mind.
Thus, the Court quashed the impugned FIR and allowed both petitions.
Appearances:
For Petitioners – Mr. Niteen Pradhan (Sr. Adv), P.D. Desai
For Respondents – Mrs. Megha Bajoria (APP)
