'Traitor' jibe: Bombay HC halts Kunal Kamra's arrest, allows probe to proceed after comedian's plea against FIR

The Bombay High Court on Friday said the police investigation against Kunal Kamra over his purported remarks against Maharashtra Deputy Chief Minister Eknath Shinde can continue, but the comedian shall not be arrested. A bench of Justices Sarang Kotwal and S M Modak, while admitting Kamra's petition, said "larger" and "serious" issues related to restrictions on the freedom of speech need to be considered.

The court said it was not inclined to grant a complete stay on the investigation into the case registered against the comedian at Khar police station here. "The investigation can continue, however, it is not necessary to arrest the petitioner," the court said.

The court noted that if the police file the chargesheet in the case during the pendency of the petition, the trial court shall not take cognisance of it. It further said that Kamra's statement could be recorded in Chennai, as the comedian was receiving death threats after the show in Mumbai. Kamra is presently residing in Tamil Nadu.

The bench, in its order, noted that the police sent Kamra a notice under section 35(3) of the Bharatiya Nyaya Suraksha Sanhita (BNSS). Under this section, the police, in cases where the arrest of a person is not required, shall issue a notice to that person to appear before it to record the statement.

"Since notice is given to the petitioner (Kamra), the arrest is not necessary. The investigation can be continued without his arrest," the court said.

The court admitted Kamra's petition seeking the quashing of the first information report (FIR) registered at the Khar police station for his alleged "traitor" jibe at Shinde during a stand-up comedy show. This means Kamra's petition will be heard at length later.

"Investigation can continue. The petitioner (Kamra) shall not be arrested during the pendency of the petition," the court said. It said Kamra had shown his willingness to give a statement, and hence, if the police wanted to record his statement, they could do so in Chennai after giving him prior notice.

Kamra, in his plea, had stated that he was a resident of Tamil Nadu and was apprehensive about coming to Maharashtra due to the death threats he had been receiving after the show. The court said since the petitioner has said that he has been receiving death threats, his "security is of concern".

"If during the pendency of the petition, a chargesheet is filed in the case by the police, the concerned court shall not proceed with the same," the court ordered. The bench, in its order, noted that the petition raises larger issues of the fundamental right of freedom of speech as against the restrictions put on that right, which include the aspects of decency, morality, and public order.

"All these questions deserve serious consideration," the court said. The court said while the offence of defamation has been invoked against Kamra in the FIR under the Bharatiya Nyaya Sanhita (BNS), there is a different procedure prescribed in the law for prosecution for defamation under the BNSS Act.

This section of BNSS provides how a complaint has to be made and by whom it can be made, the HC said, adding the procedure laid down under the BNSS has to be separately followed. The bench said all these serious issues will have to be considered while hearing the petition.

The court had last week, while reserving its order on the plea, granted the comedian interim protection from arrest. Kamra has sought the quashing of an FIR registered against him for allegedly making defamatory remarks against Shinde.

The comedian, in the petition, stated that the allegations, even if taken at face value, do not constitute an offence. He also sought the HC to protect him from any coercive action, including arrest, seizure of his electronic devices, and examination of his financial transactions and accounts.

Kamra had submitted to the court that he had agreed to appear via video-conferencing before the Mumbai police for questioning in the case.
He had said he was facing death threats ever since the FIR was registered. An FIR was registered at Khar police station here against the stand-up comedian for allegedly calling Shinde "gaddar" (traitor) during a show in the metropolis.

Workers of Shinde's party, Shiv Sena, also vandalised the studio where the show had been recorded.

During the show, Kamra sang a parody version of a song from the film "Dil To Pagal Hai", in which he used the word "gaddar". He then joked about how Shinde rebelled against Uddhav Thackeray and split the Shiv Sena in 2022. Kamra, in his plea, claimed the police action against him was an "illegal censorship" of a stand-up comedy show.

He had said if such FIRs were allowed to continue, it would have a "chilling effect" on the right to freedom of speech. Public prosecutor Hiten Venegaonkar had opposed the plea, arguing that the comedian's remarks were not only in bad taste but a direct personal attack on a person who is the deputy chief minister of Maharashtra.

(Except for the headline, this story has not been edited by DNA staff and is published from PTI)