PRIYA PRAKASH VARRIER AND OTHERS versus STATE OF TELANGANA AND ANOTHER on 31 August 2018

[2018] 10 S.C.R. 615

PRIYA PRAKASH VARRIER AND OTHERS

v.

STATE OF TELANGANA AND ANOTHER

(Writ Petition (Criminal) No. 44 of 2018)

AUGUST 31, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D.Y. CHANDRACHUD, JJ.]

Penal Code, 1860: s. 295A – When attracted – On facts,allegation against petitioner that by picturization of the song‘manikya malaraya poovi’, in the movie, they offended sentimentsof muslim community – FIR against petitioners for offence u/s. 295A– Petitioners-actor, producer and director of the movie, seekingquashing of FIR – Petitioners case that the said song was sung invarious parts of the State of Kerala since 1978, the said song, is amappila song which is a version of a traditional Muslim song fromthe Malabar region of Kerala; and that the song is being sung inthe movie which is yet to be released and is available in Youtubeand other mediums as a promotional venture – Held: Section 295Anot attracted in the instant case – Picturization of the said songsolely because of the ‘wink’ would not tantamount to an insult orattempt to insult the religion or the religious beliefs of a class ofcitizens – Said song has been on Youtube since February, 2018 –It cannot be perceived that any calculated tendency is adopted bythe petitioners to insult or to disturb public order to invite the wrathof s. 295A – Furthermore, intervenor, who was informant in FIR, inall possibility has been an enthusiast to gain a mileage from theFIR, though the same was really not warranted – In view thereof,FIR is quashed – Also, no FIR u/s 154 or any complaint u/s. 200CrPC to be entertained against the petitioners – Constitution ofIndia – Art. 32.

Ramji Lal Modi v. State of U.P. AIR 1987 SC 620– relied on.

Manohar Lal Sharma v. Sanjay Leela Bhansali and Ors.(2018) 1 SCC 770 ; Mahendra Singh Dhoni v.Yerraguntla Shyamsundar and Another (2017) 7 SCC760 : [2017] 3 SCR 763 – referred to.

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ACase Law Reference

CRIMINAL ORIGINAL JURISDICTION : Writ Petition(Criminal) No. 44 of 2018

Under Article 32 of the Constitution of India.

CHaris Beeran, Mushtaq Salim, Usman Ghani Khan, Dev Prakash,Ms. Pallavi Pratap, S. Udaya Kumar Sagar, Mrityunjai Singh, PradeepKumar Kaushik, Dr. Sunil Kumar, R.P. Goyal, Advs. for the appearingparties.

The Order of the Court was passed byD

DIPAK MISRA, CJI. 1. In the instant writ petition preferredunder Article 32 of the Constitution of India, the petitioners, namely, theactor, producer and director of the movie, have prayed for quashing ofF.I.R. No.34 of 2018, dated 14.02.2018, registered at Falaknama PoliceStation, Hyderabad, Telengana. That apart, a prayer has also been madeEthat no F.I.R. should be entertained or no complaint under Section 200of the Code of Criminal Procedure should be dealt with because of thepicturization of the song “Manikya Malaraya Poovi” by the petitionerNo.1 in the film, namely, “Oru Adaar Love”.

2. The grievance of the petitioners is that the said song has beensung in various parts of the State of Kerala since 1978. It is urged by theFlearned counsel for the petitioners that the song has been picturized bypetitioner No.1 as a part of the movie and the said song, as averred inthe writ petition, is a mappila song which is a version of a traditionalMuslim song from the Malabar region of Kerala. It is contended thatthe petitioners cannot be made liable for the song being sung in theGmovie which is yet to be released. It is not disputed that the song hasbeen available in Youtube and other mediums as a promotional venture.

3. The F.I.R. in the matter has been lodged by the intervenor,namely, M.A. Muqeeth Khan, son of Jawad Khan. The allegation in theF.I.R. is that the song offends the sentiments of a particular community.H

The F.I.R. has been lodged for an offence under Section 295A of theIndian Penal Code.

4. The pivotal issue that emerges for consideration is whetherSection 295A of the I.P.C. would get attracted to the obtaining factsituation.

5. We have heard Mr. Haris Beeran, learned counsel for thepetitioners, Mr. S. Udaya Kumar Sagar, learned counsel for the State ofTelangana and Mr. Pradeep Kumar Kaushik, learned counsel for theintervenor.

6. Section 295A of the I.P.C. reads thus:- “295-A. Deliberate and malicious acts, intended to outragereligious feelings or any class by insulting its religion orreligious beliefs.- Whoever, with deliberate and maliciousintention of outraging the religious feelings of any class of citizensof India, by words, either spoken or written, or by signs or byvisible representations or otherwise, insults or attempts to insultthe religion or the religious beliefs of that class, shall be punishedwith imprisonment of either description for a term which mayextend to three years, or with fine, or with both.”

7. It is worthy to note here that the constitutional validity of thesaid provision was assailed before this Court and a Constitution Benchin Ramji Lal Modivs. State of U.P. A.I.R. 1987 SC 620, spoke thus:- “8. It is pointed out that S. 295A has been included in chap. 15,Penal Code which deals with offence relating to religion and notin chap. 8 which deals with offences against the public tranquillityand from this circumstance it is faintly sought to be urged, therefore,that offences relating to religion have no bearing on themaintenance of public order or tranquility and consequently a lawcreating an offence relating to religion and imposing restrictionson the right to freedom of speech and expression cannot claimthe protection of cl. (2) of Art. 19. A reference to arts. 25 and 26of the Constitution, which guarantee the right to freedom of religion,will show that the argument is utterly untenable. The right tofreedom of religion assured by those Articles is expressly madesubject to public order, morality and health. Therefore, it cannotbe predicated that freedom of religion can have no bearing A

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whatever on the maintenance of public order or that a law creatingan offence relating to religion cannot under any circumstances besaid to have been enacted in the interests of public order. Thosetwo Articles in terms contemplate that restrictions may be imposedon the rights guaranteed by them in the interests of public order.

9. Learned counsel then shifted his ground and formulated hisobjection in a slightly different way. Insults to the religion or thereligious beliefs of a class of citizens of India, may, says learnedcounsel, lead to public disorders in some cases, but in many casesthey may not do so and, therefore, a law which imposes restrictionson the citizens’ freedom of speech and expression by simplymaking insult to religion an offence will cover both varieties ofinsults, i.e., those which may lead to public disorders as well asthose which may not. The law in so far as it covers the firstvariety may be said to have been enacted in the interests of publicorder within the meaning of cl. (2) of Art. 19, but in so far as itcovers the remaining variety will not fall within that clause. Theargument then concludes that so long as the possibility of the lawbeing applied for purposes not sanctioned by the Constitution cannotbe ruled out, the entire law should be held to be unconstitutionaland void. We are unable, in view of the language used in theimpugned section, to accede to this argument. In the first placecl. (2) of Art. 19 protects a law imposing reasonable restrictionson the exercise of the right to freedom of speech and expression“in the interests of public order,” which is much wider than “ formaintenance of” public order. If, therefore, certain activities havea tendency to cause public disorder, a law penalising such activitiesas an offence cannot but be held to be a law imposing reasonablerestriction “ in the interests of public order” although in somecases those activities may not actually lead to a breach of publicorder. In the next place section 295A does not penalise any andevery act of insult to or attempt to insult the religion or the religiousbeliefs of a class of citizens but it penalises only those acts ofinsults to or those varieties of attempts to insult the religion or thereligious beliefs of a class of citizens which are perpetrated withthe deliberate and malicious intention of outraging the religiousfeelings of that class. Insults to religion offered unwittingly orcarelessly or without any deliberate or malicious intention to outrage PRIYA PRAKASH VARRIER AND OTHERS v. STATE OFTELANGANA AND ANOTHER [DIPAK MISRA, CJI]

the religious feelings of that class do not come within the sanction.It only punishes the aggravated form of insult to religion when it isperpetrated with the deliberate and malicious intention of outragingthe religious feelings of that class. The calculated tendency ofthis aggravated form of insult is clearly to disrupt the public orderand the section, which penalises such activities, is well within theprotection of cl. (2) of Art. 19 as being a law imposing reasonablerestrictions on the exercise of the right to freedom of speech andexpression guaranteed by Art. 19 (1) (a). Having regard to theingredients of the offence created by the impugned section, therecannot, in our opinion, be any possibility of this law being appliedfor purposes not sanctioned by the Constitution. In other words,the language employed in the section is not wide enough to coverrestrictions both within and without the limits of constitutionallypermissible legislative action affecting the fundamental rightguaranteed by Art. 19 (1) (a) and consequently the question ofseverability does not arise and the decisions relied upon by learnedcounsel for the petitioner have no application to this case.”

8. The English translation of the song that has been promoted isto the following effect:- “She bloomed like a precious flower

in the sacred land of Mecca, great Khadeeja Beeviwas roaming in the sacred landThe lady roamingShe called for the respected lord, prophetAnd send him for tradeShe saw him andCoveted him in the heart of heartsShe came back after tradeAnd She sought her handSought her hand”

9. Learned counsel for the informant, who has filed an applicationfor intervention, would submit that he has no problem with regard to thesong as it is a folk song and is in the public domain since 1978. Hisgrievance relates to the manner of picturization. Be that as it may.

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A10. On a keen scrutiny of Section 295A and the view expressedby the Constitution Bench in Ramji Lal Modi(supra), we do not findthat the said provision would be attracted in the present case. We areinclined to think so, for the picturization of the said song solely becauseof the ‘wink’ would not tantamount to an insult or attempt to insult thereligion or the religious beliefs of a class of citizens. The said song hasBbeen on Youtube since February, 2018. We do not perceive that anycalculated tendency is adopted by the petitioners to insult or to disturbpublic order to invite the wrath of Section 295A of the IPC. In thisregard, we may refer to a three-Judge Bench decision in Manohar LalSharmavs. Sanjay Leela Bhansali and Others(2018) 1 SCC 770,Cwherein the Court observed thus:- “A story told on celluloid or a play enacted on a stage or anovel articulated in a broad and large canvas or epic spokenwith eloquence or a poem sung with passion or recited withrhythm has many a layer of freedom of expression of thoughtthat requires innovation, skill, craftsmanship and, above all,individual originality founded on the gift of imagination orreality transformed into imagination or vice versa. Theplatform can be different and that is why, the creative instinctis respected and has the inherent protective right from withinwhich is called artistic license.”

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11. In Mahendra Singh Dhonivs. Yerraguntla Shyamsundarand Another(2017) 7 SCC 760, the justification for the registration ofan F.I.R. under Section 295A had come up for consideration before thisCourt. Appreciating the act done by the petitioner therein, the Courtquashed the F.I.R. for an offence under Section 295A I.P.C.F

12. If the ratio of the Constitution Bench is appropriatelyappreciated, the said provision was saved with certain riders, inasmuchas the larger Bench had observed that the language employed in thesection is not wide enough to cover restrictions, both within and withoutthe limits of constitutionally permissible legislative action affecting theGfundamental right guaranteed by Article 19(1)(a) of the Constitution.The emphasis was laid on the aggravated form of insult to religion whenit is perpetrated with the deliberate and malicious intention of outragingthe religious feelings of that class.

PRIYA PRAKASH VARRIER AND OTHERS v. STATE OFTELANGANA AND ANOTHER [DIPAK MISRA, CJI]

13. As we perceive, the intervenor, who was an informant inF.I.R. No.34 of 2018, in all possibility has been an enthusiast to gain amileage from the F.I.R., though the same was really not warranted.What is urged before us is that picturization which involves the actresswith a wink is blasphemous. Barring that there is no other allegation.Such an allegation, even if it is true, would not come within the ambit andsweep of Section 295A I.P.C., as has been explained inRamji Lal Modi(supra).

14. In view of the aforesaid, we allow the writ petition and quashthe F.I.R. No.34 of 2018. We also direct that no F.I.R. under Section154 or any complaint under Section 200 of the Code of Criminal Procedureshould be entertained against the petitioners because of the picturizationof the song. However, there shall be no order as to costs.

Nidhi Jain

Writ Petition allowed.

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