Sudheer Rikhari Vs State Of Goa : Non Deliberate Insult To Religion Cannot Be An Offence Under Section 295A Of IPC

DATE OF JUDGEMENT:
Pronounced on 09 April 2021

CORUM:
M.S. SONAK & SMT. M.S. JAWALKAR

PARTIES:
SUDHEER RIKHARI (Petitioner)
STATE OF GOA (Respondent)

ISSUE
Whether the non-deliberate insult to a religion or religious feelings without any intention or malice cannot be an offence under section 295A of IPC.

SUMMARY
The Bombay HC in its judgement states that necessary ingredients of section 295A were not met and arrest of petitioners by police was also unlawful.

IMPORTANT PROVISIONS

• Section 295A,B and Section 34 of IPC
• Section 482 of CrPC
• Article 226 and Article 19(1)(A) of the Indian Constitution

OVERVIEW OF THE CASE

• In the present case the petitioners are active members of an art Rock live performance group known as "Dastaan Live". This group performs live and tours the country for its performances. The petitioners claim that the group has been influenced by several poets and writers like Ahmad Faiz, Nazeer Akbarabadi etc. And composed the lyrics using rock music and shades of folk music to create live performances before an audience.
• The petitioners were performing live at Panaji Goa at the the Serendipity arts festival 2019 on 17th December 2019. during their performance they performed a song called Mantra Kavita by Vaidyanath Mishra which was composed in the year 1969.
• The next day of the performance some of the members were called to Panaji police station and were informed that some persons have lodged a complaint against them, and they were present there to issue an apology in the police station.
• The petitioners claim that the police place them under custody informing them that an offence under section 295A of IPC read with Section 34 of IPC was registered against them based on a complaint lodged by K. Venkat Krishna.
• The petitioner also told that those who were put in custody were released on bail and those who were yet to be arrested secured anticipatory bail.

ARGUMENT BY THE PARTIES

• The petitioner in the present petition have prayed for the quashing of FIR No. 268/2019 dated 18th December 2019. The petitioners also claimed that the complaint made by the respondent does not disclose any commission of offence against them. The petitioner also claimed that this is a case of abuse of criminal process by invoking the provisions of article 226 of the constitution and section 482 of the CrPC. The petitioners in their defence also said that they were only performing a musical adaptation of a poem by bhai Shri Vaidyanath Mishra and they did not even modify any of the lyrics and many such musical adaptations have been made out of that poem which was composed in the year 1969.
• The petitioners further claimed that the hastiness inn lodging the FIR shows that the intention was driven by political and collateral reasons with malicious intent to damage the reputation of the group and to suppress free speech and artistic intent. The band also submitted the entire text of Mantra Kavita by Shri Vaidyanath Mishra undet a certificate under section 65B of the evidence act.
• The council for petitioners also submitted that the ingredients of section 295 A read with Section 34 of IPC have not met to the slightest and the FIR is a deliberate attempt with malicious intention of outraging the religious feeling of any class of citizens of India for it is an attempt to insert religious belief of that class. The council also refer to various cases in support of their submission. Ramji Lal Modi vs State of UP1 and Mahendra Singh Dhoni vs Yerraguntla Shyamsundar2 etc.
• The council for the respondent claims that the complaint has disclosed the commission of an offence under section 295 A read with Section 34 of IPC. And because the investigation was stayed by the court the authorities could not gather material on the aspect of deliberate and malicious intention. The council also claims that the burden of proof lies upon the petitioner as to why they chose such a song which outrage the religious feelings of the Hindus. He also claims that the word "Om" which is quite secret to Hindus is replaced with negative phrase "Ullu Ka Pattha" insulting the religious beliefs of Hindus. The respondent also claims that the petition should not be tolerated, and the petitioners shall face trial and prove their innocence.

ANALYSIS OF THE JUDGEMENT

1. As noted earlier the petitioners was called in the police station to issue an apology according to the court the police authorities cannot call citizens to the police station to demand apologies of such nature. And even worse the police placed some of the petitioners under arrest late in the evening and forcing them to seek bail and the others secured anticipatory bail to avoid physical arrest. Referring to the judgement of the honorable Supreme Court in the case of Arnesh Kumar vs State of Bihar and another3, the court thinks that there was no justification on the part of police for arresting the petitioners.
2. The court also refer to the judgement of Joginder Kumar vs State of UP4, by the honorable Supreme Court in which it was held that no arrest can be made because it is lawful for the police officer to do so the existence of power to arrest and the justification for such exercises to arrest are quite different things. The police officer on his part shall be able to justify the arrest and detention. Denying a person of his personal liberty is a serious matter. Apart from heinous officers and arrests must be awarded by the police officer. And the court observed, in this case the police officers were not justified to arrest the petitioners.
3. The court also held that it by the song the petitioners did not had any sentimental feelings of any community and the ingredients of section 295A one not even satisfied remotely. There were no allegations about any malicious intent of outraging the feelings or sentiments of any class of citizens in India. The court also concluded that "blasphemy" is not an offence under IPC as of now.
4. In the present circumstances, the pursuance of such and FIR would amount in abuse of the process of court. Head the freedom of speech and expression of the petitioner was in question and the police authorities shall be sensitive in such matters.
5. The court also referred to Ramji Lal Modi case in which the constitutional validity of section 295A was upheld but it was also stated that any insult or attempt to insult religious feelings of any class of citizens cannot be penalised. There needs to be a presence of malicious intention to deliberately causing such outrage. Right guaranteed by article 19 (1) (a) of the Constitution shall also be protected.
6. In the case of Mahendra Singh Dhoni the cricketer monsoon in advertisement where a image of God was also made and respondent filed FIR against it letter A Judicial magistrate summoned the cricketer for the proceedings. While delivering the judgement in the favour of Mahendra Singh Dhoni the court later scrutinized such officials who have power to summon the accused shall first look into the offence and see if the ingredients of the offence made the basic principle of the offence. This has to be treated as judicial responsibility of the court issuing such processes. The court held that even though the above-mentioned observations were made in the context of Judicial magistrate but shall also apply equally to the police authorities as well.
7. The court also held that in the present case the respondent has taken out a word here and a word there and filed an incomplete complaint was that not even spell out the basic ingredients of section 295 A of IPC. The police authorities also completely ignored the dictum of the supreme court which says that the words in question must be judged from the standards of a reasonable, strong minded, firm, and courageous men and not those of weak mindsets, and not those who sense danger in every hostile point of view.
8. The court also refer to the case of Maqbool Fida Husain vs Raj Kumar Pandey5. In which the petitioner was charged with the obscenity and hurting religious sentiments as he painted a picture in which he depicted India as a nude woman with her hair flowing in the form of Himalayas. The court upheld the artistic freedom of the painter in the case and all the allegations against him were dismissed.
9. The court concluded the case by saying that this is a case where in the FIR the commission of any offence was not disclosed and the basic ingredients necessary for Section 295B of the IPC were totally missing. Besides the court also holds the view that the respondent misused the criminal process by filing such FIR. The petitioners were unnecessarily called in the police station in were asked to issue an apology and were later arrested. And the others were forced to get anticipatory bail. The council of petitioner is quite right in their submission that this was an unwanted assault on creativity and freedom of speech and expression itself. For all the above-mentioned reasons the court quashes the FIR No. 268/2019 dated 18th December 2019.

CONCLUSION

The present case was brought forward when FIR (FIR No. 268/2019) was filed on 18th December 2019 against the rock band named "Dastaan LIVE" for allegedly hurting the sentimental and religious feelings of the Hindu community during their live performance in Goa. Some of the band members were later called in the police station and were asked to issue an apology. When they refused to issue the apology the band members were arrested and was later released on bail and the other petitioners were forced to seek anticipatory bail.

In a prayer seeking to quash this FIR, the petitioners moved before this court. The court in its judgement held that the basic ingredients of section 295A were not fulfilled and calling the petitioners in police station and asking them to issue an apology and even worse arresting them, was unlawful and very careless on the part of Police. The FIR was filed by taking some words from the here and there and misinterpreting their meaning and this was a misuse of process of law. The court also held at the petitioners were well within their rights guaranteed by article 19 (1) (A) of the constitution. Subsequently, the FIR was quashed.

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