Non-Deliberate Insult to Religion Without Intention to Hurt Religious Feelings Not An Offence U/S 295A IPC: Bombay High Court

While rapping up the Goa Police for lodging FIR under sec. 295A read with sec. 34 of the Indian Penal Code against members of "Dastaan LIVE", an art rock live performance band, for using the word "OM" and clubbing it with phrases like "Ullu Ka Pattha" thereby outraging religious feelings of Hindus, the Bombay High Court, Goa Bench on Friday observed that insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the preview of sec. 295A of the IPC.

The observation came by the division bench comprising of Justice MS Jawalkad and Justice MS Sonak wherein the Court while quashing the said FIR called the conduct of the police as an "unwarranted assault on creativity and freedom of speech and expression itself."

The facts of the case dates back to 17th December 2019 wherein Dastaan LIVE gave a live performance at Serendipity Arts Festival, 2019, at Campal, Panaji, Goa. It was the case of the petitioners, member of the said band, that the band was driven by several influential poets and writers from Faiz Ahmed Faiz, Baba Nagarjuna, Sahir Ludhianvi and Nazeer Akbarabadi, and had composed their lyrics using progressive rock and shades of folk music to create an audio-visual live performance. During the live performance, a song named "Mantra Kavita" originally composed in 1969 by Vaidyanath Misra was performed by them.

An FIR was registered against the petitioners the very next day after the Goa Police received a complaint against them. When the petitioners were called to the police station for tendering an apology, they were in fact informed by the police that an FIR under sec. 295A and 34 of IPC was registered against them.

The petitioners had then filed the said petition challenging the FIR by alleging tha it was a case of abuse of the criminal process warranting interference of the Court as the complaint did not disclose comission of the said offences as alleged.

Advocates Shivan Desai and Aniroodh Sardesai appeared for the petitioners whereas Additional Public Prosecutor Mr. Pravin Faldesai appeared for the Respondent.

Submissions of the Parties

While arguing that there was an undue haste and alacrity in registering the FIR by the police, the petitioners submitted that the whole process was driven by political interest with malicious intent to damage the band's reputation and to curb free speech and artistic intent or creative capital.

On the other hand, it was also argued by the APP that the word "OM" was quite sacred to the Hindus and if the same was recited in a negative narrative or clubbed with the words or phrases "Ullu ka pattha", then, the same amounted to insulting religion and religious beliefs. 

Observation of the Court

Unwitting, Careless, Non Deliberate Insult to Religion Without Intention to Hurt Religious Feelings not an Offence u/sec. 295A

The Court after analysing the FIR, observed that the complainant had adverted to only one small portion of the song's composition, interpretation of which do not even remotely constitute the ingredients of Section 295-A thereby calling the allegations as vague.

"Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. In other words, the language employed in the section is not wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Article 19(1)(a) of the Constitution." The Court held.

Noting that there was no justification whatsoever for the Police Inspector to hurriedly register such an FIR without even going into the complaint, the Court observed that the Police authorities are expected to be quite sensitive in such matters, "because, what is at stake is the freedom of speech and expression."

"Therefore, unless the complaint discloses the ingredients of the offense under section 295-A of IPC, it is not expected of the Police authorities to rush and register an FIR in such cases. In any case, there was no justification whatsoever to call some of the Petitioners to the Police Station and require them to apologize or to arrest some of the Petitioners, no sooner the FIR was registered." The Court observed at the outset.

No Arrest Can Routinely Be Made on Mere Allegation of Commission of an Offence

While observing that the police officer must be able to justify the arrest apart from his power to do so, the Court observed that arrest and detention in police lock-up of a person can cause incalculable harm to his reputation and self-esteem. 

"No arrest can be made routinely on a mere allegation of commission of an offense made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even to the need to effect an arrest." The Court observed.

Furthermore, the Court went ahead to observe:

"Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offense. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to a person to attend the Station House and not to leave the station without permission would do."

While calling the complaint as vague, the Court quashed the FIR after observing thus:

"The action of the Respondents was contrary to judicial precedents in matters of arrest or explaining the true scope of Section 295-A of IPC. There is merit in the submission of Mr. Desai that the FIR was registered hurriedly and possibly without even perusing the complaint or in any case the provisions of section 295-B of the IPC. Mr. Desai is quite right in his submission that this was an unwarranted assault on creativity and freedom of speech and expression itself." 

Title: Sudheer Rikhari v. State of Goa & Ors.

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