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.
MUMBAI: Stand-up comedian Kunal Kamra has approached the Bombay High Court seeking to quash an FIR filed against him by the Mumbai Police for allegedly calling Maharashtra Deputy Chief Minister Eknath Shinde a “gaddar” (traitor) during a comedy show.
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Kamra argued that the case was filed hastily, without following proper legal procedures, and was an attack on his freedom of speech under Article 19 of the Constitution.
The case was heard by a Bench of Justice Sarang Kotwal and Justice SM Modak. Kamra was represented by Senior Advocate Navroz Seervai, who strongly criticised the FIR and the actions of the police.
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.”
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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.”
“This shows that even after 75 years of the existence of Constitution…Law enforcement machinery is ignorant of the fundamental right or does not care about the fundamental right.”
The Court sought clarity on whether a preliminary enquiry should be conducted before or after registering an FIR.
They said:
“Our question is whether filing of FIR is first stage then preliminary enquiry, or whether preliminary enquiry is first and then FIR. Since your contention is that FIR was filed before preliminary enquiry. We are not making any opinion…We need your assistance on this.”
Seervai replied:
“…a plain reading of sub-section 3 (of Section 173 of Bharatiya Nagarik Suraksha Sanhita) is that preliminary enquiry precedes FIR. The phrase used is ‘receipt of information’ and nothing says it has to be written.”
The judges then asked:
“After Section 173, when to register FIR…does it say? When to file the FIR after preliminary enquiry?”
Seervai cited Supreme Court rulings and responded:
“Where allegation is of an offence covered by clause (2) of Article 19…Section 173(3) is applicable. It is always recommended to conduct a preliminary enquiry so that fundamental rights remain protected. If in such cases, 173(3) is not exercised…it will defeat the purpose of including this sub-section.”
Kamra originally moved the Madras High Court for anticipatory bail, since he lives in Villupuram, Tamil Nadu. The Madras High Court granted him interim bail until April 17. He then approached the Bombay High Court to seek quashing of the FIR filed in Mumbai.
Seervai strongly argued that Kamra’s speech was satirical, not defamatory or inciting hatred.
“Only when speech creates disturbance in public tranquility the law needs to step in…Illegal vandalism (in the aftermath of the stand-up show), however, is not an event affecting public tranquility…”
Kamra’s petition also highlighted that under Section 356(2), only the person who feels defamed can file a complaint. Since Eknath Shinde has not made any such complaint, the FIR lacks legal merit.
Kamra clarified that:
- His comment was not false.
- There was no intent to spread fear or enmity.
- The FIR does not disclose a cognizable offence.
- His satirical parody in the show Naya Bharat was meant to criticise political events, especially the Shiv Sena split.
