Bombay HC quashes case against singer Kailash Kher over song ‘hurting religious sentiments’

A bench of Justices Bharati H Dangre and Shyam C Chandak passed an order on Kher’s plea on March 4, copy of which was made available on Thursday.

Kher had moved the high court in 2014 after the complaint was lodged in Ludhiana. On July 4, 2014, the high court had granted interim relief to Kher and had directed that till further orders, no coercive action be taken by the Mumbai police and that warrant, if issued by Ludhiana court against Kher, would be stayed till then.

Advocate Ashok Saraogi for Kher had argued that while his client had merely sung the song, the choreography and picturisation of the song were conceptualised by the producer and director of the album and that the Central Board of Film Certification (CBFC) had certified the song video fit for “unrestricted public exhibition”.

Ludhiana resident Narinder Makkar had filed a complaint before a local magistrate court seeking registration of a case against Kher under sections 295A (deliberate and malicious acts intended to outrage religious feelings) and 298 (uttering words, etc., with deliberate intent to wound the religious feelings) of the Indian Penal Code (IPC).

The complainant, who said he was a Lord Shiva worshipper, had contended that the video of Kher’s song ‘Babam Bam’ displayed vulgarity. The video showed scantily dressed women dancing with Kher and people kissing, and this hurt his religious feelings and emotions, the complainant said.

The court noted that the complainant, however, had not alleged that lyrics sung by the petitioner had outraged his religious feelings.

“What is important to note in this whole scenario is the absence of the deliberate and malicious intention on part of the petitioner, who is just singing the song, and in any case he is not the producer of the album nor he has directed its filming/recording,” the court said.

It went on to hold, “Merely because he is singing the song being surrounded by a large number of people, who have independently performed the role assigned to them by the director, according to us the ingredients of Section 295 A of IPC are not made out”. It also said that offence under Section 298 of the IPC was also not made out.

The high court noted that except for the filing of the complaint, no cause of action had arisen within the purview of the Ludhiana court and as the song was produced by a company in Mumbai, it had authority to entertain Kher’s plea.

The court added that “the song sung by petitioner and picturised on him was a musical piece sung in praise of Lord Shiva” and consisted of attributes of Shiva’s “mighty character and nothing else”.

“More so every action which may be to the dislike of a class of people may not necessarily lead to outraging religious sentiments…,” it said while allowing the plea.