Bombay HC grants Kunal Kamra protection from arrest till its verdict on his plea challenging FIR over ‘gaddar’ jibe

After four-hour long arguments, the HC reserved its order on Kamra’s writ plea, which, pending its disposal, has also sought a stay on proceedings arising out of the said FIR by Mumbai Police.

Taking cognisance of a complaint filed by Shiv Sena MLA Murji Patel, the MIDC police in Mumbai booked Kamra on March 24 for offences punishable under sections 353(1)(b) and 353(2) (statements conducing to public mischief), along with 356(2) (defamation) of the Bharatiya Nyaya Sanhita (BNS). They later transferred the Zero FIR to Khar police.

A bench of Justices Sarang V Kotwal and Shriram M Modak noted that public prosecutor Hiten Venegaonkar for the state government had “agreed that summons was issued to the petitioner under section 35 (3) of Bhartiya Nagrik Suraksha Sanhita (BNSS), which specifically refers to the notice where the arrest of a person is not required.” It added, “In that background, the question of arresting the applicant in this particular case in the respect of FIR by Khar police does not arise. Matter reserved for orders. Till then the petitioner shall not be arrested.”

Senior advocate Navroz Seervai for Kamra argued that none of the three offences mentioned in the FIR were “ex-facie made out,” therefore the FIR be quashed and pending hearing of the probe, there shall be complete stay on investigation.

“This case exemplifies an attempt by the state, at the behest of a political party to make an example of an artist, stand-up comedian which if permitted, will inevitably have the effect of self-censorship and chilling effect,” Seervai argued.

He alleged that the FIR was registered with “non application of mind,” by the police officers who “completely disregarded the procedure of preliminary enquiry” before registering the FIR.

Seervai said the FIR was registered with “haste” and consisted of “gross abuse of power” by politically motivated members of Shinde-led Shiv Sena, which is part of the present ruling dispensation in the state and the same was reflected in the vandalism of the studio by certain politically affiliated persons pursuant to uploading of the video.

Seervai argued that the FIR was registered with “malafide” intention as no such proceedings were initiated by the complainant despite the present Deputy CM Ajit Pawar had allegedly referred to Shinde as ‘traitor’ and former Chief Minister had made remarks against Shinde during the election campaign.

He added that the FIR failed to show any intent by Kamra to cause fear or alarm to the public or harm to public peace or tranquillity.

“This case shows even after 75 years of the Constitution, law enforcement machinery is ignorant about fundamental right of freedom of speech under Article 19 (1) (a) or does not care about it,” Seervai claimed.

He further said, “it was almost unprecedented” that persons who attended the show and producers of the show were called for questioning and the same was “sheer witch hunt.”

In his response, PP Venegaonkar, while opposing the plea, claimed that FIR was registered as all offences were disclosed. He said as the probe is at a “nascent stage, the officers are required to collect corroborative material and evidence to find out ‘the truth in respect of allegations.”

The state claimed that Kamra’s comments in the show were “malicious targeting of an individual” who is holding the position of Deputy CM by lowering his reputation and dignity. Venegaonkar said the same was not a “humorous criticism” or a “political satire by any stretch of imagination” or “opinion on the manner in which the state was functioning.”

Venegaonkar further argued that “the alarm was caused by inducing citizens to vandalise the studio where the show took place” which “affected public peace and tranquillity” and a separate offence was registered against the same.
He claimed that even an individual party comprising lakhs of followers, who share common ideology or interests does constitute ‘community’ under section 353 of BNS, therefore the offence was made out in the case.

Venegaonkar said Kamra cannot resort to a defence that he cannot be prosecuted merely because none came forward to register offence on earlier comments made by politicians.

Seervai, in his rejoinder opposed the state and said the state cannot say that Kamra was responsible for action of political workers indulging in vandalism.

The court asked the police as to what the difficulty was in going to Tamil Nadu to record Kamra’s statement as he had cited “reasonable excuse” of death threats in Mumbai and Maharashtra and instead had sought recording of the statement through video conference mode. The court said it will pass an appropriate order after considering the relevant submissions.