A division bench of the Bombay High Court, including Justice Sarang Kotwal and Justice Shriram Modak, was hearing Kunal Kamra’s petition to cancel the FIR (First Information Report) filed against him.
MUMBAI: The Bombay High Court on Wednesday gave temporary protection from arrest to stand-up comedian Kunal Kamra.
The case is related to his controversial comment where he allegedly called Maharashtra Deputy Chief Minister Eknath Shinde a “traitor“.
A division bench of the Bombay High Court, including Justice Sarang Kotwal and Justice Shriram Modak, was hearing Kunal Kamra’s petition to cancel the FIR (First Information Report) filed against him.
During the hearing, the court pointed out that the section of the law under which Kamra was summoned does not make arrest compulsory.
According to the the court: “Arguments concluded. In meantime as agreed by PP that summons are under 35(3) which specifically refers that arrest of person is not required, in that background arrest of this person does not arrise. Matter reserved for orders till then petitioner shall not be arrested.”
This means the public prosecutor (PP) accepted that Section 35(3) of the law—under which the summons were issued—clearly says that the person does not need to be arrested. So, the judges ruled that there is no need to arrest Kamra for now.
The court added that it has kept the matter on hold for a final decision, and in the meantime, Kamra will not be arrested.
As stated in the order: “Till then petitioner shall not be arrested”
Kamra told the Court that despite receiving over 500 death threats and requests for virtual questioning, the police were insisting that he appear physically in Mumbai for questioning.
He said:
“It appears that my communication with police is reaching the media…These are the posters openly put up: ‘Will kill you…Cut you into pieces.’ Pictures are being burned…Police know this and yet they are insisting on my physical presence for a stand-up comedy show.”
He added that the police failed to act when his show’s venue was vandalised, and even audience members were harassed and summoned for questioning.
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At the beginning of the hearing, the counsel for the complainant made a strange statement:
“We have instructions to be present but not appear.”
This puzzled the judges, prompting a sharp response:
“What does it mean? Once you appear before the Court and waive notice…It’s your duty to file reply. You understand the seriousness of appearing before High Court?”
Kamra is facing charges under Sections 353(1)(b), 353(2), and 356(2) of the Bharatiya Nyaya Sanhita (BNSS). These sections deal with public mischief, promotion of enmity between groups, and defamation. The FIR was filed by Shiv Sena MLA Muraji Patel, even though Shinde himself has not claimed to be offended.
Seervai argued:
“There is no identification of groups…There is not even an allegation…All political parties are competitors and all political parties behave with malice towards each other. They don’t need a stand-up comedian for that. Nobody takes stand-up comedy at face value.”
Seervai said that the complaint was made within just 70 minutes of watching the video, without conducting a preliminary enquiry, which is mandatory under Section 173(3) of the BNSS when freedom of speech is involved.
“Kindly see the timeline. He says he got the video clip at 9:30 on 23rd (March), made the complaint at 10:45 and the FIR is filed at 11:55 on 23rd.”
“All illegal or improper attempts at censorship are repelled by the Supreme Court since time immemorial because threat of criminal action leads to censorship, what our Court calls chilling effect.”
ALSO READ: Traitor Joke On Eknath Shinde: Kunal Kamra Gets 2nd Legal Notice From Mumbai Police
Reference to Imran Pratapgarhi case
Seervai referred to the Imran Pratapgarhi case, where the Supreme Court criticised the Gujarat Police for lodging a case against the Congress leader over a poem he had recited. He drew a parallel with Kamra’s case, arguing that the same misuse of criminal law was happening.
“Police failed to make a determination of whether offence is made out through a preliminary enquiry. Three summons demanding his physical presence despite physical threats…Madras High Court, taking note of the threats, gave interim relief. The police still gave a summons for Kamra to be present on April 5. And the harassing of elderly parents. To call a person who gave attended a show in an investigation. You can call the team that produced the show. This is sheer and completely malafide.”
