"Prima Facie Curtailment Of Right Under Art 19": Calcutta HC Stays Probe Over FB Post Containing Lord Krishna's 'Intimate' Portrait With Radha

An artist has moved the Calcutta High Court against the registration of an FIR under Section 295A of the IPC over a Facebook post made by him containing a portrait depicting an intimate scene between Lord Krishna and Radha, influenced by Geet Govinda (an epic love poem of Jaya Deva.)

Taking into account the facts of the case, the Court prima facie noted that the criminal complaint in the case didn't disclose a cognizable offence, and that the registration of the FIR against the petitioner over the FB Post curtailed the right to freedom of speech under Article 19(1)(g) of the Constitution of India, and further, it stayed the probe in the matter.

The case in brief

Essentially, the said portrait had been displayed in Christie's, an auction house, and later on, the same was posted on a Facebook page by the student-artist/petitioner (Jayarshi Bhattacharya).

Thereafter, a complaint was filed by one Prasun Maitra, alleging that the post may hurt religious sentiments and incite communal hatred and consequently, over the said post, an FIR was registered u/s 295A of the IPC, read with Section 67 of the IT Act.

Now, challenging the FIR, Jayarshi Bhattacharya (Petitioner) moved the Court contending that the said post could not be treated as an offence as the portrait was taken from Geet Govinda. The petitioner also raised an issue regarding infringement of his fundamental right guaranteed under Article 19(1)(g) of the Constitution of India.

Court's order

At the outset, the bench of Justice Shampa Sarkar took a prima facie view that the complaint does not disclose any cognizable offence as it noted that the provisions of Section 295A of the Indian Penal Code would be attracted only when there is an intention to deliberately hurt religious sentiments.

"This post is a portrait and the artist has remarked that the love was the essence of Janmasthami. The registration of the FIR, in the prima facie view of the Court, amounts to curtailment of the right to freedom of speech under Article 19(1)(g) of the Constitution of India, and also the liberty of the petitioner. The complaint was filed an apprehension that the post may hurt religious sentiments, although the said picture is available publicly at art galleries and in different illustrated and translated version of Geet Govinda," the Court further remarked as it stayed the investigation in the matter for a period of three months.

Further, the Court directed the Inspector-in-Charge, Cyber Crime Police Station, Raiganj, Uttar Dinajpur to produce the order of the Metropolitan Magistrate, on the basis of which the investigation was started in this matter.

Now, regarding the question as to whether the instant writ petition be heard on the facts and law pleaded, or should the petitioner be relegated to the appropriate forum under Section 482 of the Code of Criminal Procedure, the Court said that a decision in this regarding would be taken on perusal of the records to be produced by the investigating officer.

However, in this regard, Senior Advocate Bikash Ranjan Bhattacharya submitted that the Court should entertain the writ petition despite any order having been passed, if at all, by the Metropolitan Magistrate on the ground that denial of the fundamental right of the petitioner has to be adjudicated by the writ court.

He further argued that the constitutional point that has been raised by the petitioner, cannot be decided by the criminal court under Section 482 of the Code of Criminal Procedure. Before, arriving upon any decision, the Court posted the matter for further hearing on November 1.

Senior Advocate Bikash Ranjan Bhattacharjee appeared with Advocates Shamim Ahmed and Saloni Bhattacharjee.

Case title - Jayarshi Bhattacharya VS The State of West Bengal & Ors.

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