The complaint was filed by a Ludhiana resident who described himself as a devotee of Lord Shiva. He claimed that after purchasing the CD of Kailash Kher’s album and watching the song ‘Babam Bam’, his religious sentiments were hurt.
MUMBAI: The Bombay High Court has dismissed the criminal case against famous singer Kailash Kher. He was accused of hurting religious sentiments through his song ‘Babam Bam‘.
The bench, consisting of Justices Bharati Dangre and Shyam C Chandak, emphasized the value of tolerance in a democratic society.
The judges stated, “Intolerance of dissent has been the bane of Indian society for centuries, but a free society distinguishes itself by its acceptance of differing views.”
During the hearing, Additional Public Prosecutor DS Krishnaiyar argued that the Bombay High Court did not have the authority to quash the case, as it was pending in Ludhiana.
However, Kailash Kher’s legal team, represented by advocates Ashok M Saraogi, Priti Rao, and Amit Dubey, argued that the Bombay High Court did have jurisdiction. They explained that the music was composed and released by Sony Music Entertainment Pvt. Ltd., which is based in Mumbai. Therefore, the case could be heard in Mumbai.
Saraogi further argued that just because the CD was sold worldwide and the complainant chose to file the case in Ludhiana, it did not mean that the entire matter should be limited to the Punjab court.
The bench agreed with Saraogi’s arguments. The court ruled that the complaint did not meet the necessary conditions for a criminal offence. The judges noted that the song ‘Babam Bam‘ was a devotional song dedicated to Lord Shiva. They also highlighted that Kailash Kher was only the singer and had no role in how the song was filmed.
The court stated,
“What is important to note in this whole scenario is the absence of deliberate and malicious intention on the part of the petitioner, who is just singing the song. He is not the producer of the album nor has he directed its filming.”
Background of the Case
The complaint was filed by a Ludhiana resident who described himself as a devotee of Lord Shiva. He claimed that after purchasing the CD of Kailash Kher’s album and watching the song ‘Babam Bam’, his religious sentiments were hurt.
The complainant pointed out that the song showed a girl wearing revealing clothes, scenes of a couple kissing, and some vulgar content. He also mentioned that the video depicted police officers accepting a bribe and leaving the scene. The video ended with a flag showing a heart symbol being set on fire. He stated that these visuals “deeply hurt his religious sentiments” and filed a case in a Ludhiana Magistrate court.
In 2014, Kailash Kher approached the Bombay High Court seeking relief before the Ludhiana court could proceed with the case. The High Court granted him interim protection and directed the Mumbai Police not to take any coercive action against him. The court also stayed any warrants issued by the Ludhiana court. This protection remained in place until the final judgment.
The judges emphasized that Section 295A of the Indian Penal Code requires a “deliberate and malicious intention to outrage religious feelings“, which was not evident in this case. Referring to past judgments by the Supreme Court, the bench observed that not every act considered offensive by some people amounts to hurting religious sentiments.
The court also pointed out that for prosecution under Section 295A, prior sanction under Section 196(1) of the Criminal Procedure Code (CrPC) is necessary. In this case, such a sanction was not obtained.
Case Title: Kailash Mehar Singh Kher vs State of Maharashtra (Writ Petition 2291 of 2014)
