BREAKING | Bombay HC Grants Interim Protection From Arrest To Kunal Kamra Till Decision On Plea To Quash FIR

The Bombay High Court on Wednesday (April 16) granted interim protection from arrest to comedian Kunal Kamra in his plea for quashing an FIR lodged against him following his satirical video and "gaddar" comment purportedly made against Maharashtra's Deputy CM Eknath Shinde.

Granting protection from arrest to Kamra and reserving order on the plea, a division bench of Justice Sarang Kotwal and Justice Shriram Modak in its order dictated, "Arguments are concluded. Reserved for orders. In the meantime as agreed by Shri Venegaonkar the learned Public Prosecutor that summons were issued under Section 35(3) BNSS which specifically refers to notice where arrest of person is not required, in that background the questioning of arresting applicant in this particular case does not arise. Matter reserved for orders till then petitioner shall not be arrested". 

In the previous hearing, the high court had asked the State to get instructions on Kamra's plea. Notably, the Madras High Court on April 7 extended Kamra's interim protection till April 17, before which the comedian had moved seeking transit anticipatory bail in connection with the FIR lodged against him at Mumbai. 

During the hearing, senior advocate Navroz Seervai made the following submissions on behalf of Kamra. 

Falls within Article 19

The counsel argued that the comedy clip falls within freedom of speech under Article 19(1)(a) of the Constitution. He argued that it did not fall within the exceptions to freedom of speech.

He submitted that the Supreme Court has, on various occasions, set aside improper attempts at censorship as mere threats of criminal action lead to self-censorship and create a chilling effect. He stated that the FIR against Kamra exemplify an "attempt by the State at the behest of a political party to make an example of an artist". 

He relied on the case of Imran Pratapgadhi v. State of Gujarat (2025 LiveLaw (SC) 362), where the Supreme Court underscored the importance of protecting the freedom of speech and expression and reminded the Courts and the Police of their duty to uphold the rights of persons expressing unpopular opinions.

"This is fundamentally a case of freedom of speech under A 19(1)(a) of an artist who happens to be a satirist and a stand up comedian. Taking everything on face value it does not come under offence alleged. Other aspect, ref in several judgments including case of a poet in SC, is machinery of law used by persons who take umbridge at exercise of free speech. It does not fall foul of A 19(2)…to victimize and almost terrorize a person so that they are hobbled in exercise of free speech is yet another case of rarest of rare mentioned in Bhajan Singh (SC)," Seervai said. 

He said that all illegal and improper attempts at censorship are repelled by Supreme Court and the mere threat of criminal action leads to self censorship having a chilling effect. 

On Police action

Seervai submitted that as per the complaint made by MLA Murji Kanji Patel, he lodged the complaint for the reason that Kamra's speech would create hostility between two political parties. Highlighting the timeline of registering the FIR, Serervai said that the complainant received the comedy video on his phone on March 23 at 9:30pm, made a complaint at 10:45 pm and the FIR was filed at 11:52 pm; and the next day summons were issued. He said “Even if we take that FIR is registered on 11:55 the morning of March 24 even then my argument remains that it was filed in haste. We said this bcoz statement recording on FIR mentions March 23.”

The counsel argued that the police did not apply their mind while registering the FIR. He submitted for 356(2) BNS for defamation, the person alleged to be defamed (Eknath Shinde) did not file the complaint.

The counsel highlighted that Kamra received several death threats from Shiv Sena workers. He stated that despite threats against Kamra, the police demanded his personal presence for the investigation. 

“We have also pointed to mechanical and in some cases malafide conduct of police including almost illogical emphasis on his (Kamra's) physical presence when he has already said he will answer all questions on VC as he is being threatened.”

The counsel further argued that before registration of the FIR, a preliminary inquiry was required to be conducted by the police as per Section 173(3) BNSS. Referring to Supreme Court's decision in Imran Pratapgarhi's case, the counsel said that the first stage before registration of FIR would be preliminary inquiry.

No intent to create fear or alarm to public

On the charge of Section 353 (1)(b) BNS, which relates to intent to cause fear or alarm to the public to commit an offence against the State or against the public tranquility, the counsel argued that ex facie the contents of the video do not show commission of the offence.

Stating that the comedy show of factual events which had taken place in Maharashtra  which took place 2 years ago does not come under Section 353 (1)(b) BNS, the counsel argued that satire cannot be taken seriously or on face value. He stated that Kamra expressed personal views on the split in Shiv Sena, which is a factual aspect.

On politicians' comments over split in the party as reported in news reports, the counsel stated, “What is amazing is when Mr Ajit Pawar in 2023 February nine months after events at public meetings said that 'we have to teach this traitor a lesson', nobody said anything that it is an insult, a criminal offence? Nobody complained to anyone. But a comedian is to be crushed, harassed, terrorized, victimized and a signal sent out to all artists- that 'you better watch out if we don't like it this is what we will do to you through the police'.”

He further argued that there are no allegations that Kamra's statements are rumours or false statements and that there was no intent or likelihood of fear or alarm to public. He argued that the effects of words must be judged using standard of reasonable strong minded persons.

He also submitted that the persons who attended the comedy shows were called for investigation. Calling the actions of police a 'witch hunt', the counsel said “This is unprecedented that you call persons who attended a show in an investigation? You call the team that produced the show over 60 times? This is complete witch hunt!”

Seervai submitted that Kamra's show 'Naya Bharat' covers a number of social and political themes including the intolerance of Indian political class for satirical speech, the Indian billionaire class, their garish display of wealth, the relentless patriarchal demands made on Indian women. 

"As part of that show petitioner inter alia commented and expressed his personal views on political upheaval in Maharashtra the same being events leading to resignation of the then Chief Minister Uddhav Thackeray in June 2022, the formation of a new government under the Chief Ministership of Mr Eknath Shine, split in Shiv Sena and creation of two factions. The said events are engraved in history and are also a matter of judicial record in the case of Subhash Desai v Principal Secretary Govt of Maharashtra (2024)," he said. 

State's submissions

The State counsel argued that Article 19 of the Constitution does not come into play when a cognizable offence is made out. Referring to the contents of the comedy show, the counsel said that it was not a police satire but 'malicious targeting'. Stating that one has to draw distinction between humorous criticism and malicious targeting, the counsel said the Kamra was targeting one individual and thus it did not fall within the tenor of humorous criticism.

“When artist, stand up comedian, puts up his piece his criticism should fall within tenor of humorous criticism. When you are targeting one individual it does not fall in bracket of humorous criticism; it is malicious targeting," he said.

The counsel submitted that Kamra knew the consequences of words spoken. The counsel said  “He (Kamra) has a Youtube channel for years together. He knows the consequences of words spoken, manner in which it is spoken. It is with intent. He is not an illeterate person.”

On politicians' remarks on certain events which had taken place earlier it was stated, “Merely because some words were spoken earlier by some politicians but no prosecution had taken place, based on that petitioner can't say that don't prosecute me.”

The State counsel argued that under the guise of Article 19, one cannot target an individual and lower his dignity. The counsel argued that Kamra's comedy lowered Shinde's dignity. It was stated, “Petitioner can't say that I have dignity and rights and reputation but public figure has no rights and then you start maliciously targeting the individual. Reading of our FIR clearly demonstrates that it seeks to lower the person's dignity in the society...Article 21 which is referred gives dignity not only to person who has made the person, but against also against whom statements are made, he also has right of Article 21, a right to lead dignified life. He cant be tarnished on his looks. He has a family. Merely because you want to do some parody on somebody's reputation, it will not take you out of clutches of law.”

On the charge of Section 353(2) BNS, the counsel said that the comedy clip contained false information, rumour and caused alarm. The counsel said that it created ill will on the ground of promoting hatred between communities. The counsel referred to a law lexicon on the discussion on the term community and emphasized that a political party having lakhs of followers/members and sharing a common ideology is a 'community'. He also submitted that the investigation was at a nascent stage and hence FIR may not be quashed. 

On the threats received by Kamra, the State counsel stated the State would protect him as the State has responsibility to protect everyone. Although the counsel stated that Kamra did not disclose the threats he received and not made any request. The court said that Kamra had replied to the summons that he was receiving threats to which State's counsel said that he has not filed any complaint till now. 

After the arguments, the High Court noted that Kamra's interim protection would be ending tomorrow. It asked the State's counsel if the police wants to arrest and also asked about the State's requirement of recording Kamra's statement and the modality for the same. The court also asked if the police can go to Madras to record the statement. 

The court also asked Kamra's counsel as to how long he will stay out of Mumbai and told the State's counsel that it can direct the police to take help of local police in Madras. 

It stated that the notice was issued under Section 35(3) BNSS wherein arrest is not necessary. The State's counsel said that in case some other material comes it will approach the court, and sought that liberty may be given. The Court said to the State counsel, "Your notice is under 35(3), that intention not to arrest is already there. We will record that. You can't run away from that." 

Background

Kamra, who presently resides in Tamil Nadu, was earlier granted interim anticipatory bail in connection with the Mumbai police FIR. The initial interim protection, which ended on April 7, was extended up till April 17.

A Zero FIR was lodged against Kamra under Sections 353(1)(b), 353(2) [Public mischief] and 356(2) [Defamation] BNS by Shiv Sena MLA Muraji Patel. The FIR was later transferred to Khar police station in Mumbai. Though Kamra had not directly taken the Deputy Chief Minister Eknath Shinde's name, the party workers allege that he had called Shinde a traitor while referencing to his split from the Shiv Sena. Offended by Kamra's remarks, a group of Shiv Sena workers had also vandalised Mumbai's Habitat studio, where the comedian had performed the show.

Twelve people were arrested in connection with the violence that had erupted and were subsequently granted bail. Kamra claims he has been receiving death threats since the show. 

(Compiled by Sanjana Dadmi)