Supreme Court grants interim bail to comic Munawar Faruqui

 

The comic was accused of allegedly hurting Hindu sentiments and was arrested on January 1. On Friday, the apex court acknowledged Faruqui's argument that the allegations against him are vague, according to The Hindu.

The Supreme Court Friday granted interim bail to stand-up comedian Munawar Faruqui and also stayed the production warrant issued in connection with a case registered by the Uttar Pradesh Police against him last year.

The court was hearing Faruqui’s appeal of a Madhya Pradesh high court order denying him bail. The comedian has been charged with hurting religious sentiments based on the complaint of the son of a BJP MLA, but was arrested even before the allegedly offensive show took place. The BJP leader’s son has claimed that he overheard Faruqui rehearsing for the show but could not submit proof of this.

"The learned counsel has pointed out to us that quite apart from the fact that the allegations made in the FIR are vague that the procedure contained in Section 41 Cr.P.C. as adumbrated by our judgment in Arnesh Kumar Vs. State of Bihar & Anr., reported in (2014) 8 SCC 273 has not been followed before arresting the petitioner. This being the case, we issue notice in both the petitions, and stay the Judgment of the High Court. The petitioner is released on ad-interim bail on conditions to the satisfaction of the trial court. In the meantime, there shall be stay of the production warrants as well," the order said.

Faruqui’s lawyer, Saurabh Kirpal, told the Supreme Court that the court’s directions in Arunesh Kumar – which put in place guidelines and restrictions for the police while making arrests – were not followed while arresting the comedian. “Judgment of 2014 not followed in this case and that has been pointed out to us as per Section 41 CrPC. We issue notice [to the Madhya Pradesh government] on the interim bail plea,” Justice Nariman said, according to Bar and Bench.

Faruqui was arrested on January 1 by the Madhya Pradesh Police on allegations that he made derogatory remarks against Hindu Gods during a recent stand-up show. A complaint to this effect was reportedly filed by Eklavya Singh Gaur, chief of Hindutva organisation Hind Rakshak Sangathan.

The bench led by Justice R.F. Nariman issued notice to the Madhya Pradesh government on Faruqui’s petition, challenging the MP High Court’s earlier order that dismissed his request for bail.

The stand-up comedian has been in judicial custody since January 1, when he was arrested along with four others for allegedly passing “indecent remarks” about Hindu deities and Union home minister Amit Shah during a New Year show at a cafe in Indore. His arrest, police say, was based on “oral evidence” given by the son of a BJP MLA, who claimed to have “overheard” Faruqui rehearsing jokes that he was “going to” say in his act.

Faruqui's bail plea was earlier rejected by a Sessions Court and thereafter the Madhya Pradesh High Court on January 28.

Faruiqui's counsel has asserted in the High Court that there was no video or material to show that Faruqui has made any comment to hurt Hindu deities during his show as alleged. An objection was also raised to the Uttar Pradesh Police seeking Faruqui's custody in relation to comments allegedly made during another show in May 2020.

The Madhya Pradesh high court had on January 28 rejected Faruqui’s bail plea and said that it was the constitutional duty of every citizen “to promote harmony and the spirit of common brotherhood”.

The single-judge bench of Justice Rohit Arya that gave the judgement after reserving its order on Monday, held that “no case is made out for grant of bail”. It also said that there was prima facie evidence to suggest that the applicants intended to outrage religious feelings “under the garb of standup comedy.”

The State must endeavour to ensure that this "ecosystem and sustenance of coexistence in our welfare society is not polluted by negative forces," the High Court had added.

Justice Rohit Arya of Madhya Pradesh High Court had said in his order denying bail that, "regard being had to the material seized and the statements of the witnesses and that the investigation is in progress, no case is made out for grant of bail."

It stated that there is a Constitutional duty on every citizen and the State to promote harmony and the spirit of common brotherhood irrespective of religious, linguistic, sectional and regional diversities (under Article 51A(e) and (f) of the Constitution).

Faruqui has been lodged in jail for over a month now in Indore, and his bail petition was denied thrice by a sessions court and the High Court.

On 28 January, a single-judge HC bench of Justice Rohit Arya had said Faruqui and co-accused Nalin Yadav’s complacency could not be ruled out in light of the statements made by the complainant and witnesses as well as the articles seized by the police and video footage of the show.

It was not a case of “no evidence”, the judge had held.

Faruqui and four other artistes were arrested on 1 January under various sections of the Indian Penal Code (IPC), including Section 295A (deliberate and malicious act intended to outrage religious feelings of any class), for allegedly cracking jokes about Hindu gods and goddesses, and also Union Home Minister Amit Shah, during a show at a café in Indore.

The case was registered on a complaint filed by Aklavya Singh Gaud, convenor of local Hindu outfit Hind Rakshak, alleging that Faruqui and others had hurt “religious feelings of Hindus” through their “outrageously filthy jokes cracked deliberately against Hindu gods and goddess”.

Faruqui also moved SC with a separate writ petition to quash the FIR registered against him by the Madhya Pradesh Police. The top court has also issued notice on the same.

Bail granted because MP Police did not follow 2014 SC judgment

During Faruqui’s bail hearing Friday, his lawyer Saurabh Kirpal told Justice Nariman that the case against the comedian was an instance of victimisation.

The bench then asked Kirpal if SC’s 2014 judgment on arrests was followed by the Madhya Pradesh Police when Faruqui was detained, which the lawyer replied was not followed.

“Judgement of 2014 is not followed in this case and that has been pointed out to us. We issue notice on the interim bail plea. Production warrant by UP stayed,” the court then ordered.

In the case of Arnesh Kumar Vs State of Bihar in 2014, the top court had laid down a procedure to be followed to arrest persons in matters where an offence is punishable with a jail term of up to seven years.

Reiterating the provisions under Section 41A of the Criminal Procedure Code (CrPc), the SC had ruled that every police officer shall forward a check list of the arrest duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding or producing the accused before the magistrate.

According to the judgment, notice of appearance has to be extended by the superintendent of police concerned to the accused within two weeks of filing the case, under Section 41A of CrPC.

“Arrest brings humiliation, curtails freedom and casts scars forever,” the top court had said, adding that the police must ensure they do not arrest an accused unnecessarily and the magistrate does not authorise detention casually and mechanically.

Victim of ‘gross persecution’

In his appeal against the HC order, Faruqui had said he was a victim of “gross persecution” and was “illegally abducted” without “any incriminating evidence”.

He alleged that he was forcefully taken to Tukoganj police station in Indore and was arrested on the spot without any prior investigation.

The impugned HC order “spells a death knell to the fundamental concomitant of bail jurisprudence which rests upon the principle that grant of bail is a rule whereas its rejection it’s only by way of an exception”, Faruqui submitted to the SC.

The High Court had concluded that there is prima facie evidence to suggest that the applicants (Faruqui and the show organiser, Yadav) had intended to outrage religious feelings "under the garb of standup comedy."

He added that the order highlighted the HC’s “prejudice”, which rejected his bail plea on the grounds of complacency and videos that were published earlier on social media platforms and “were never part of the transaction on the basis of which the instant FIR was registered”.

The HC order, the appeal maintained, is contrary to settled tenets of law and provisions of Section 295A of the Indian Penal Code.

His petition noted that the HC incorrectly relied upon earlier videos of Faruqui that were uploaded on YouTube, which had no relation or bearing to the present case.

According to him, the HC completely ignored the words spoken by Faruqui at the show.

He added that they were never meant to insult or meant to outrage the religious feelings of a particular class of people “but merely a satire for the purpose of entertainment”.

“The entire comic was never meant to be taken literally,” he stated in his petition, noting that the HC erred in basing its order on content that was never part of the FIR or ever alleged by the complainant.

The alleged complacency and selected bits and pieces of videos, which are circulating in the public domain, could not have been made the basis for deciding the question of petitioner’s liberty, Faruqui stated in his petition.

The appeal also cited the Arnesh Kumar judgment and highlighted that the police transgressed its jurisdiction by arresting him without complying with mandatory procedural requirements.

Besides Faruqui, four other persons – Nalin Yadav, Prakhar Vyas, Edwin Anthony and Priyam Vyas – associated with organising the show were booked under IPC section 295A (outraging religious feelings) and other counts. One day later, Faruqui’s friend Sadaqat Khan was also arrested for allegedly making abusive remarks about Gaur. Khan’s bail plea was also rejected by a sessions court in Indore for “being involved in hurting Hindu religious sentiments by passing objectional remarks against Hindu god-goddess and showing objectionable articles to women and children”.