Bombay High Court: Arrest can not be made on mere allegation of Commission of an Offence

FIR was registered by Mumbai police under section 295A r/w 34 of IPC where Petitions raise a common issues of law and fact and therefore, it can be disposed of by a common Judgment and Order.

The petitioners are live performers of “Dastaan LIVE”. And the question here was of religious sentiments. Respondents stated that “OM” is quite sacred to the Hindus and if the same is recited in a negative narrative or clubbed with the words or phrases “Ullu ka pattha”, then, the same amounts to insulting religion and religious beliefs.

Justice MS Jawalkar and Justice MS Sonak observed that the Police authorities, registered the FIR, literally the minute the same was lodged, perhaps, without even bothering to either read the complaint or the provisions of section 295-A of the IPC.

Referring to case of Ramji Lal Mod the constitutional validity of section 295-A was no doubt upheld by the Constitution Bench of the Hon’ble Supreme Court, but it stated that section 295-A of IPC penalizes only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are deliberate, and are done with malicious intent.

The language employed in the section is not wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Article 19(1)(a) of COI.

With this it was also stated that the basic ingredients necessary to invoke the provisions of section 295-B of the IPC are totally missing, and the action of the Respondents was contrary to judicial precedents in matters of arrest or explaining the true scope of Section 295-A of IPC.

The FIR was hurried and this is a matter of unwarranted assault on creativity and freedom of speech and expression.

The court said that No Arrest Can Routinely Be Made on Mere Allegation of Commission of an Offence, and so the FIR was quashed.Sudheer Rikhari v. State of Goa & Ors.

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