"States must endeavour that ecosystem and sustenance of coexistence in our welfare society is not polluted by negative forces and must strive for achievement of goals as enshrined under Article 51A(e) and (f) of the Constitution” - Munawar v. State of Madhya Pradesh
On January 28, the Madhya Pradesh High Court rejected the bail application of comedian Munawar Faruqui. The order was reserved on January 25, when Justice Rohit Arya made some additional remarks regarding the case. Today's outcome was a rather predictable one, given that the judge had stated in court that people like Faruqui and other accused “must not be spared.”
Here is an analysis of the bail order and why some observations are contrary to the settled principles of law.
The Arrest
On January 1, the Madhya Pradesh Police arrested Faruqui on a complaint made by the son of BJP MLA Malini Gaud. The complainant stated that the comedy act was an attempt to hurt ‘religious sentiments’. The comedian was arrested along with four others, namely - Nalin Yadav, Prakhar Vyas, Priyam Vyas, Edwin Anthony and Sadakat Khan.
The complaint was registered at Police Station Tukoganj, Indore for the offences punishable 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, among others.
On the very next day, a bail plea was filed before the Sessions Court at Indore, but the Magistrate rejected the contentions and bail was denied. To make matters worse, it was reported that officials had openly expressed the fact that they didn't have any evidence/video against the comedian.
To make matters worse, Superintendent of Police at Indore Vijay Khatri went on record to say that it didn’t really matter if Faruqui had not made the comments or jokes that were the basis for the arrests.
The case before the High Court
The bail application was moved before the Madhya Pradesh High Court at Indore. On January 15, the police authorities failed to produce the case diary due to which the Court adjourned the matter for another six days.
It was also reported that the Uttar Pradesh Police had filed a case against the comedian in a previous complaint which was filed in Prayagraj, Uttar Pradesh. After this, Faruqui had moved an application before the Madhya Pradesh High Court for his bail application to be listed.
On January 28, the Madhya Pradesh High Court rejected the bail applications of Faruqui and Yadav.
Jail, not bail
The Court relied on various statements made by the complainants under Section 161 of the Criminal Procedure Code. It is pertinent to note that all the complainants were interested parties to the act and the statements themselves were hearsay evidence. While deciding the bail application, the Court only relied on these statements made under Section 161 and no such ‘record’ or ‘video evidence’ was placed before it. It was observed:
“This Court has carefully perused the case diary. The statements of witnesses recorded under section 161 Cr.P.C., particularly; statements of the complainant Eklavya Singh Gaud and witness, Kunal. Emphasis laid on some portions of the statements by the learned Public Prosecutor have already been reproduced in the form of his contention. The evidence/material collected so far, suggest that in an organized public show under the garb of stand-up comedy at a public place on commercial lines, prima facie; scurrilous, disparaging utterances, outraging religious feelings of a class of citizens of India with deliberate intendment, were made by the applicant.”
The Court ultimately felt that it was not a fit case to grant bail, after it was contended that some material might be possessed by the investigating agency.
It is pertinent to note that the comedian has been under judicial custody since January 1.
The pending case in Uttar Pradesh was also one of the ‘main’ reasons mentioned by the Court to reject Faruqui’s bail plea. The order reads:
“The possibility of collection of more incriminating material and complacency of other persons cannot also be ruled out. Further, it has come on record that similar nature of offence has been registered against the applicant at Police Station Georgetown, Prayagraj, State of Uttar Pradesh.”
No place for ‘human liberty’
In State of Rajasthan, Jaipur v. Balchand, Justice VR Krishna Iyer observed that “the basic rule of our criminal justice system is bail, not jail”. Though this is a well-established principle, the High Court's order seems to be more inclined toward 'jail, not bail’ as the principle.
The Supreme Court in Arnab Manoranjan Goswami v. State of Maharashtra, while granting bail to the journalist, observed that “human liberty is a precious constitutional value". It was further held,
“Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”
In Faruqui's bail order, the interpretation of Section 295A was very narrow. The intention behind an offence under this provision needs to be tangible and it has to be proved with some stringent evidence, and not by mere statements recorded.
It is important to note that the Supreme Court in Mahendra Singh Dhoni v. Yerraguntla Shyamsundar and another had stated that everything cannot be penalised under Section 295A.
“It is clear as crystal that Section 295A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalise only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens. 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.”
The concluding slope
While parting with its order, the Court stated that it "refrains from commenting upon contentions of the parties touching on merits”.
However, when the matter was taken up January 25, the Court observed,
"How can you hurt the religious feelings of others?"
This goes against the Supreme Court's directions in Kanwar Singh Meena v. State Of Rajasthan, in which it had observed,
“The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial.”
The Court also gave a brief overview of the fundamental duties and held that “it is the constitutional duty of every citizen of the country and also of the States to promote harmony and the spirit of common brotherhood amongst all the people of India irrespective of religious, linguistic, regional or sectional diversities and to value and preserve the rich heritage of our composite culture (Article 15A (e) and (f) of the Constitution of India.”
We are living in such times when comedy is regarded as a crime and bail is the exception. The bail order is not only against the settled principles of law, but it totally neglects the concept of liberty as propounded by the apex court in a number of decisions.
It remains to be seen what will be the outcome of the trial against the accused, who face a long and arduous legal process for jokes that they seemingly did not tell in public.