Bombay High Court: In a writ petition filed by the famous singer Kailash Kher seeking quashing of a complaint registered against him under Sections 295A1 and 2982 of the Penal Code,1860 (‘IPC’) for singing in a Lord Shiva song with a specific depiction, the Division Bench of Bharati Dangre* and Shyam C. Chandak, JJ., allowed the petition holding that merely because Kailash Kher was singing the song being surrounded by a large number of people who independently performed their roles assigned to them, the ingredients of Section 295A of IPC were not made out. Similarly, regarding Section 298 of IPC, the Court held that the complainant failed to make out even a prima facie case of his religious feelings being wounded with a deliberate intention attributed to Kailash Kher.
Background
The complainant, a worshiper of Lord Shiva, bought a CD of Kailash Kher’s new album ‘Kailasa Jhoomo Re’ and watched the video for the song ‘Babam Bam’ wherein Kailash Kher was singing about Lord Shiva and dancing with a girl who was scantily clothes. Allegedly, watching the same hurt the religious feelings of the complainant, and he filed the case before the Court of Ilaka Judicial Magistrate, Ludhiana, against Kailash Kher as well as the producer, Sony Music Entertainment Pvt Ltd (‘Sony’). Aggrieved, Kailash Kher filed the present petition.
Analysis
On the issue of jurisdiction, the Court agreed with the contention that the Court had jurisdiction since Kailash Kher was a singer located in Bombay, he had a global appeal, and he was required to travel across the length and breadth of the country for his shows and shooting. As far as Sony was concerned, the Court noted that it had its office in Mumbai. Furthermore, except for the filing of the complaint by the complainant in Ludhiana, no cause of action had arisen within the jurisdiction of the said Court.
The Court further noted that the album featuring the petitioner was recorded on CDs available for sale in the entire country, and just because the complainant viewed the song in Ludhiana, he chose to file the complaint in Ludhiana. Since the song was produced by Sony, which was situated in Mumbai, it could not be said that the exclusive cause of action arose in Ludhiana, but instead, it arose in Mumbai. Thus, the Court held that it had jurisdiction to entertain the present petition.
The Court stated that the necessary ingredient of Section 295A of the IPC was the deliberate and malicious intention of outraging the religious feelings of any class of citizens of India by words, either spoken or written, by signs, or by visible representations otherwise, when it amounted to insulting or attempting to insult the religion or religious belief of that class. To attract the offence under Section 295A, what was necessary to be demonstrated was a deliberate attempt by Kailash Kher to hurt religious sentiments. The Court stated that the test to invoke Section 295A is whether the act has the potential to disturb public order or morality.
In this regard, the Court noted that the only accusation against Kailash Kher was that he was dancing with some scantily dressed girls, and a girl and boy were kissing each other in the song. Such picturization was allegedly to hurt the religious feelings and emotions of the complainant. The Court remarked that deliberate and malicious intention was absent on the part of Kailash Kher, who was just singing the song. Additionally, he was neither the producer of the album nor did he direct its filming/recording. The Court held that merely because Kailash Kher was singing the song being surrounded by many people who had independently performed the role assigned to them by the Director, the ingredients of Section 295A of IPC were not made out.
The Court added that every action that might be disliked by a class of people may not necessarily lead to the outraging of religious sentiments because an act without the intention to outrage religious feelings would not be covered under Section 295A.
The Court referred to Ramji Lal Modi v. State of U.P. 1957 SCC OnLine SC 77, wherein the Supreme Court held that Section 295A does not penalise any and every act of insult to or attempt to insult the religion or religious feelings of a class of citizens, which are perpetuated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly, carelessly, or without any deliberate or malicious intention to outrage the religious feelings of that class are not encompassed within the said provision.
The Court added that the one who alleges a malicious and deliberate act on the part of another has to prove it, and then it would be considered what act could be said to have been done maliciously. A man acts maliciously when he wilfully and without lawful excuse does something that he knows will injure another in person or property. The term ‘malicious’ denotes ill-will, perversion, or incorrigible disposition. It means and implies an intention to do an act which is wrongful to the detriment of another. Whether a person has acted corruptly or maliciously is a question of fact which must be proved.
The Court stated that the alleged act of Kailash Kher, though he had only vocalized the song, would have to be tested against the fundamental right of freedom of speech and expression and liberty of conscience guaranteed to every citizen under the Constitution. Though the Constitution does not guarantee it as an absolute right, reasonable fetters can be imposed by law under Article 19(2) of the Constitution.
The Court mentioned a quote from A.G. Noorani, a famous Supreme Court advocate, scholar, author, and political commentator, which reads, “Intolerance of dissent from the orthodoxy of the day has been the bane of Indian society for centuries. But it is precisely in the ready acceptance of the right to dissent as distinct from the mere tolerance that a free Society distinguishes itself.” The Court stated that this quote aptly described the situation. While safeguarding the freedom of speech, the burden lay on the complainant to prove the ingredients of Section 295A, as it was intended to deal with an offence that was more serious than the one punishable under Section 298 of IPC, which related to words uttered in presence of the person with intention of wounding his religious feelings.
The Court underscored that another important aspect was the requirement for obtaining a sanction under Section 196(1) of the CrPC for prosecuting Kailash Kher under Section 295A, without which the prosecution could not be sustained. Similarly, as far as the offence under Section 298 of IPC was concerned, the Court held that the complainant failed to make out even a prima facie case of his religious feelings being wounded with a deliberate intention attributed to Kailash Kher. The lyrics of the song sung by him were nothing but praise of Lord Shiva and the attributes of his mighty character, nothing else.
Accordingly, the Court allowed the petition holding that it was satisfied that the present case fell within clause (1) of the guidelines issued by the Supreme Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 wherein the Supreme Court permitted the High Courts to exercise its powers for quashing a case when the allegations, even on face value and accepted in its entirety, do not prima facie constitute any offence or make out a case against the accused.
Thus, the complaint case was quashed and set aside.
[Kailash Kher v. State of Maharashtra, WP No. 2291 of 2024, decided on 04-03-2025]
*Judgment authored by: Justice Bharati Dangre
Advocates who appeared in this case:
For the petitioner: Ashok M Saraogi, Priti Rao, and Amit Dubey
For the respondent: APP D.S. Krishnaiyar
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1. Section 299 of the Bharatiya Nyaya Sanhita, 2023
2. Section 302 of the Bharatiya Nyaya Sanhita, 2023
