New Delhi: The Indore bench of the Madhya Pradesh high court on Thursday rejected Munawar Faruqui’s bail plea for hurting religious sentiments 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 evidence/material collected so far, suggest that in an organized public show under the garb of standup comedy at a public place on commercial lines, prima facie; scurrilous, disparaging utterances, outraging religious feelings of a class of citizens of India with deliberate intendment, were made by the applicant,” the order said.
“Every [Fundamental] right is coupled with duty,” the court said and added that an individual’s liberty has to be balanced with his duties and obligations towards his fellow citizens. The state must endeavour to ensure that this “ecosystem and sustenance of coexistence in our welfare society is not polluted by negative forces,” the court added.
“Our country is a beautiful country and sets an example of coexistence amid diversities; be it religion, language, culture, geographical locations etc, to the world at large. Mutual respect, faith and trust amongst all citizens of India are basic tenets of co-existence, in a welfare society governed by the principles of rule of law,” the order said.
The stand-up comedian has been in judicial custody since January 1, when he 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.
Asked for his reaction to the high court’s denial of bail, Justice Deepak Gupta, a former judge of the Supreme Court told The Wire. “Bail, not jail is the accepted jurisprudential principle. Every undertrial is presumed to be innocent till proven guilty.
He said, “The exceptions to the above principle are where there are chances of the accused fleeing from justice or influencing/thwarting a free and fair investigation. The third exception is the gravity or heinousness of the offence. There is no discussion qua the first two exceptions. As far as third exception is concerned, the maximum sentence [in Faruqi’s case] is only 3 years and therefore the alleged offence cannot be considered to be a heinous one.”
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”.
The court also rejected the submission that Faruqui had not made any of the statements alleged in the criminal complaint and that in view of the complaint, the witnesses in the case and video footage seized of the show, said that the “complacency of the applicant” cannot be ruled out.
“In the light of the statements of the complainant and the witnesses referred above, the seized articles, viz., video footage of the show and the seizure memos detailed above, at this stage it is difficult to countenance to the submissions of the learned counsel for the applicant as complacency of the applicant cannot be ruled out, besides vulnerability of his acts in public domain,” the court said.
Dismissing the bail plea, Justice Arya further said that the investigation was still underway and there was a possibility that “more incriminating material may be collected”.
“The possibility of collection of more incriminating material and complacency of other persons cannot also be ruled out. Further, it has come on record that similar nature of offence has been registered against the applicant at Police Station Georgetown, Prayagraj, State of Uttar Pradesh,” the order said, referring to the case filed by the Uttar Pradesh police to seek Faruqui’s custody for statements allegedly made by him in May 2020.
At a previous hearing, Justice Arya had told Faruqui, “But why you take undue advantage of other’s religious sentiments and emotions. What is wrong with your mindset? How can you do this for the purpose of business?”
Justice Arya also asked senior advocate Vivek Tankha, appearing for Faruqui, if he wanted to withdraw the bail application. “He has committed no offence in the matter your lordships. Bail should be granted,” Tankha said.
After another lawyer accused Faruqui of making “objectionable statements” against Ram and Sita, Justice Rohit Arya observed, “Such people must not be spared. I will reserve the order on merits”.
At a bail hearing before the Indore bench on January 16, the Indore police failed to produce the case diary and added that it had no evidence whatsoever to back the allegations made against the comedian and five others who have been arrested in the same case. Town Inspector of Tukaganj Police Station Kamlesh Sharma told The Indian Express there was “no evidence against [Faruqui] for insulting Hindu deities or Union Minister Amit Shah”.
Indore East Superintendent of Police Vijay Khatri also told Article 14 that Faruqui had made no jokes about Hinduism, but “it didn’t really matter” if Faruqui had not made the comments that were the basis for the arrests. “We were told (by the complainants) that when they (comics) were rehearsing before the show, they were cracking jokes about Ram, Shivji,” Khatri said.