HC restrains police from arresting Kunal Kamra, but refuses to stay the probe

MUMBAI: The Bombay High Court on Friday admitted the petition filed by stand-up comedian Kunal Kamra seeking to quash the First Information Report (FIR) registered against him for allegedly defaming Maharashtra Deputy Chief Minister Eknath Shinde during a show in February.

A division bench of justices Sarang Kotwal and SM Modak restrained the Mumbai police from arresting Kamra until it passed a ruling, but refused to halt its investigation into the case.

The bench also allowed the Mumbai police to record the Tamil Nadu-based comedian’s statement in Chennai after giving him reasonable notice. However, it restrained the trial court from taking cognisance of any charge sheet filed by the police.

Kamra had approached the court earlier this month, claiming that the FIR registered against him at the Khar police station, based on a Shiv Sena leader’s complaint, was a gross misuse of the criminal justice system. His petition said that the FIR infringed his constitutionally guaranteed freedom of speech and expression, right to profession and business of choice, and right to life and liberty.

The FIR was filed on March 24, a day after Kamra released a video of his February stand-up special, Naya Bharat, on YouTube and social media. The video included a parody song referring to a “gaddaar” (traitor) in Maharashtra politics, without naming anyone. Shiv Sena workers, who believe the song targeted party chief Shinde, vandalised The Habitat studio in Khar, where the show was recorded, and also threatened to beat Kamra up if he was spotted in Mumbai.

The FIR charged the comedian under sections 353(1)(b) (making, publishing or circulating any statement, false information, rumour, or report), 353(2) (creating feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities), and 356(2) (defamation)of the Bharatiya Nyaya Sanhita (BNS).

Kamra’s counsel, senior advocate Navroz Seervai, argued that sections 353(1) and 353(2) of the BNS did not apply to the case as the comedian had only referred to a political situation and whatever he said cannot be termed as false information, rumour or alarming news. Seervai also said there was no reference to any religious, racial, linguistic or regional groups or castes during the show. Public prosecutor Hiten Venegaonkar, however, countered that the word “communities” used in section 353(2) was wide enough to cover a political party.

After hearing both parties, the bench admitted Kamra’s petition, saying it is necessary to interpret the scope of section 353(2) of the BNS, which requires serious consideration. “There are larger issues of fundamental right of freedom of speech guaranteed under Article 19(1)(a) of the Constitution canvassed by Mr Seervai against the restrictions put on that right as canvassed by Mr Venegaonkar, which included the aspect of decency, morality and public order. All these questions raised by both sides deserve serious consideration,” the bench added.

The court, however, rejected Kamra’s prayer for an interim stay on the Khar police’s investigation, citing previous Supreme Court rulings that such orders could be passed only in exceptional circumstances.

The court also restrained the police from arresting Kamra while his petition is being heard. It noted that the investigating officer had issued a notice to the comedian under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, which itself indicated that the petitioner’s arrest was not necessary.