Police should be sensitive when registering the offence of outraging religious sentiments as freedom of speech and expression is at stake, the Goa Bench of Bombay High Court said on Friday quashing First Information Reports (FIR) filed in 2019 against members of an art-rock live performance project “Dastaan LIVE” (Sudheer Rikhari v. State of Goa).
A Bench of Justices MS Sonak and MS Jawalkar was hearing pleas moved by nine of the members of the band seeking quashing of FIR filed against them for the offence registered under Section 295A (deliberate and malicious acts intended to outrage religious feelings) of the Indian Penal Code at the instance of a complaint by one K Venkat Krishna.
The Court observed that the complainant precisely chose to pick out sentences or words on the basis of which a vague complaint was filed which did not even spell out the basic ingredients of Section 295A of IPC.
The Court said that prosecution of the petitioners in pursuance of such an FIR will amount to an abuse of the process of the court.
“According to us, there was no justification whatsoever for the Police Inspector to hurriedly register such an FIR… 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,” the order said.
The members were performing live at the Serendipity Arts Festival at Panaji, Goa in 2019 and during their performance they played a set-list of eight songs which they had been performing in various cities of India unhindered till then.
The song against which the complaint came to be filed – Mantra Kavita – was composed by the poet and two time Sahitya Akademi Award Winner poet Vaidyanathan Mishra.
The petitioners’ contention was that their band was only performing their own musical adaptation of the poem and even the lyrics were not modified.
The petitioners stated that the day after their performance, some of the band members, Anirban Ghosh, Sumant Balkrishnan, Shiva Pathak, and Nirmala Ravindran were called to the Panaji police station where they were informed about the complaint against their band and that they have to issue an apology.
The four persons which included two women, pleaded their intention to co-operate with the police, however they were placed under arrest based on the FIR lodged.
The arrested petitioners were eventually released on bail and the petitioners who were yet to be arrested, secured anticipatory bail.
The petitioners contended that the complaint made did not disclose any offence against them and this case was an abuse of the criminal process hence ought to be quashed by the Court.
Advocate Shivan Desai for the petitioners submitted the complainant attempted to misinterpret the composition and allege blasphemy. He argued that the complainant was taking lines out of context to claim that the same hurt the sentiments of “hundred crores of India and few million abroad”.
Additional Public Prosecutor Pravin Faldessai submitted that the burden lay on the petitioners to explain why this particular composition was chosen and why there was no deliberate and malicious intention to hurt religious feelings of the Hindus.
He further added that due to stay on further proceedings by this court, the investigating officers could not gather evidence to prove the malicious intention and hence this was a premature stage to quash an FIR.
“If based on investigation, the Police agencies are satisfied that there is no case for filing a charge-sheet, they will not file any charge-sheet,” Faldessai submitted.
The Court deduced that the allegations in the complaint do not remotely disclose ingredients of Section 295-A of the IPC and there was no justification to call the some of the members to the police station for an apology or to arrest them.
The FIR, the Court said, does not disclose the commission of any offence and the basic ingredients necessary to invoke the provisions are totally missing.
“We are satisfied that this is a case where the criminal process has been abused by the Respondents by registering the FIR based upon a vague complaint. The Petitioners were unnecessarily arrested possibly because they refused to tender any apology at the Police Station. Some of the Petitioners were forced to seek anticipatory bail. …this was an unwarranted assault on creativity and freedom of speech and expression itself,” the order stated
The Court refused to impose costs expressing hope that the police will not act similarly in future.