New Delhi: The Madhya Pradesh High Court Thursday rejected bail applications of stand-up comedians Munawar Faruqui and Nalin Yadav, observing that the prosecution evidence collected so far prima facie suggests the two had made “scurrilous, disparaging utterances” with a “deliberate intendment” to “outrage religious feelings of a class of citizens”.
A single bench of Justice Rohit Arya said the accused persons’ complacency at this stage cannot be ruled out in the light of the statements of the complainant, witnesses, seized articles by the police and video footage of the show.
“It is not a case of no evidence,” the judge held.
The judge also said it was the duty of every citizen “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”.
“Liberty of an individual has to be balanced with his duties and obligations towards his fellow citizens,” he added.
The court said states must ensure that the welfare of society is “not polluted by negative forces”.
“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 of India (related to fundamental duties),” the court said.
The judge’s order came on bail applications filed by Faruqui and Nalin who along with three other artistes were arrested on 1 January for allegedly cracking jokes at Hindu gods and goddesses and Union Home Minister Amit Shah during a show at a cafe in Indore on New Year’s Eve.
The case was registered on a complaint filed by Aklavya Singh Gaud, convenor of Hind Rakshak, a local outfit.
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Court weighs in on complainant’s statement
The HC judge weighed in on the complainant’s statement that accused Faruqui and Nalin cracked “outraging filthy jokes on social media, deliberately against Hindu gods and goddess, hurting religious sentiments of Hindus for the last 18 months, despite protest on various social media platforms”.
“There is nothing on record to the contrary,” the judge noted in his order, recording that a similar nature of offence has been registered against the accused at the Georgetown police station in Uttar Pradesh.
In court, Gaud’s lawyer addressed Faruqui and the other accused as ‘urban Naxals’ who hurt religious feelings of Hindus under the garb of freedom of speech and expression.
Accepting the prosecution’s stand that the case is still under progress, the court said in its order the possibility of collection of more incriminating material cannot be ruled out.
According to the judge, under section 295A of IPC the prosecution is required to establish that the intention of the accused to outrage religious feelings was malicious, deliberate and directed to a class of persons and not an individual.
“What is punishable under this section is not so much the matter of discourse, written or spoken, but as the manner with which it intended,” the judge ruled.
He, however, said the observations made in the order were for the purpose of deciding the bail applications and will have no bearing on the pending trial.
‘As comic artistes, jokes are cracked to entertain public’
In jail since 1 January, the five artistes have been booked under Section 295A (deliberate and malicious act intended to outrage religious feelings of any class) and 298 (uttering words with the deliberate intention to wound the religious feelings of any other person.
Besides, they have also been charged with organising the show in violation of Covid-19 protocols existing at that time.
Faruqui and his associates have denied the accusations, deeming them baseless and fraudulent, and contending that they are artistes “who cut jokes to make laughter and entertainment of the general public and they have no intention to hurt religious feelings of any person of the society”.
There was no malicious intent to outrage anyone’s religious sentiments, they have said.
Both the magistrate and the sessions court had rejected the duo’s bail application, which was then challenged before the HC.
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Footage, Rs 2,000 note, mobile phones part of police evidence
Before Justice Arya, the public prosecutor opposed the bail applications on the grounds that Faruqui and his associates “have been actively involved in the crime”.
He said the police had sought police remand of Faruqui to collect his voice sample and that the matter is still under investigation.
The Indore police submitted six seizure memos to the court that contained recording of the comedy show by the Gaud, Faruqui’s mobile phone, a letter by Nalin to book the café for the show, a Rs 2,000 note, driving licence and PAN card of co-accused Edwin Anthony who was sitting at the counter for collecting money, a mobile phone of a co-accused, a booking register page for organising the comedy show and one more pen drive of the video footage.
Though the court was in possession of two video footage, the order is silent on the contents of the footage.
Faruqui had sought bail on the ground that he had not uttered the words attributed to him in the FIR. For this, he had requested the court to view the video footage or seek a report from the police on this.
The prosecutor relied heavily on Gaud’s statement to the police as well as versions given by three witnesses — two of whom claimed they overheard Faruqui insult Hindu gods and goddesses while he was practising.
The third witness’ statement was against co-accused Nalin in which he claimed the artiste used unparliamentary language while taking about sex, marriage and sex education in the presence of an audience comprising women and children.
‘Accused are urban Naxals’
The HC also heard Gaud’s lawyer who alleged that Faruqui and his associates had deliberately hurt religious feelings of Hindus to incite communal riots.
Such acts, he argued, establish mens rea or intention on his part. Faruqui and his associates, he claimed, were highly influential persons and ‘urban Naxals’, who hurt religious feelings of Hindus under the garb of freedom of speech and expression.
He referred to the UP case and alleged the accused has criminal antecedents and tendency of outraging religious feelings. Their release will jeopardise the process of collection of more incriminating material against them, the complainant had submitted.
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