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Munawar Faruqui Bail Plea Rejected, But Questions Over HC Order

Justice Rohit Arya’s order relies on witness statements which say different things, do not indicate intent required.

Updated
Law
4 min read

Video Editor: Deepthi Ramdas

The Madhya Pradesh High Court on Thursday, 28 January rejected the bail application of comedian Munawar Faruqui and one of his associates.

The high court held that no case for bail had been made out, and that:

“The evidence/material collected so far, suggest that in an organized public show under the garb of standup comedy 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 judge has primarily relied on statements by the witnesses in the case, particularly the complainant Eklavya Singh Gaur (son of BJP MLA Malini Gaur and leader of a local Hindutva oufit), and one Kunal.

In Gaur’s statement under Section 161 of the CrPC, he claims that Faruqui made derogatory comments about Hindu deities during his show after asking the audience to turn their phones off.

The cited segment in Kunal’s 161 statement, however, says that Faruqui was making derogatory jokes while practicing. Neither of the statements reference any intent behind the alleged comments by Faruqui, which the judge himself acknowledges as a requirement for offences under Section 295A of the IPC in para 11 of the order.

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Faruqui’s lawyer, senior advocate Vivek Tankha, had argued that Faruqui had not made any of the comments alleged by the complainant at the show.

The judge said that in light of the statements of the complainant and witnesses, and video footage from the show (recorded by Gaur), “at this stage it is difficult to countenance 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.”

[Note: It is unclear what the judge means by “complacency” here.]

The order goes on to note that there may be a possibility of collecting more incriminating material and “complacency” of other persons cannot also be ruled out. It is also noted that a similar case was registered against Faruqui in Prayagraj, Uttar Pradesh, previously (In May 2020).

The judge also notes the complainant’s assertions that Faruqui has made similar jokes against Hindu deities during the last 18 months on various social media platforms, and that this has not been countered by Faruqui’s lawyers.

[Note: The complaint and FIR do not relate to these previous jokes but the show in Indore.]

The judge notes that none of these observations apply to the pending trial, and are only relevant to the issue of bail.

He also goes on to make several further observations in the order (not in the operative part) about how India is a land of diversity where “mutual respect, faith and trust” amongst all citizens are basic tenets of co-existence.

He also states that it is “the constitutional duty of every citizen of the country and also of the States to promote harmony and the spirit of common brotherhood amongst all the people of India” while making an incorrect reference to Article 15A of the Constitution (instead of Article 51A).

He further writes that “States must endeavour that ecosystem and sustenance of coexistence in our welfare society is not polluted by negative forces and must strive for achievement of goals as enshrined under Article 51A(e) and (f) of the Constitution of India in particular as these provisions are part of our vibrant Constitution and not dead letters.”

[Note: Article 51A describes the fundamental duties of citizens under the Constitution. Unlike the fundamental rights in Part III of the Constitution, including the right to freedom of speech (Article 19(1)(a)) and personal liberty (Article 21), fundamental duties are not enforceable and are not relevant to bail decisions.]

Controversial Comments by Judge During Short Hearing on 25 January

The decision by Justice Rohit Arya came days after he had conducted a brief but controversial hearing in the case on Monday, 25 January, when he was reported to have asked Faruqui’s lawyers: “But why do 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?”

The judge is also reported to have said that “such people should not be spared”, according to LiveLaw.

Faruqui was represented by senior advocate Vivek Tankha, who had argued that the accused should be granted bail as no offence had been committed by them. As the hearing on 25 January only lasted around 15 minutes, there had been no time for extensive oral arguments.

The judge had asked lawyers for all parties, including those who opposed bail, to provide written submissions with their arguments, and reserved his order on the day itself.

Why is Munawar Faruqui in Jail?

29-year-old Munawar was arrested by Madhya Pradesh’s Indore Police on 2 January, a day after he was detained from Monroe Cafe in Indore on 1 January.

His show had been interrupted by BJP MLA Malini Gaur’s son Eklavya Singh Gaur. Gaur is also the convenor. of the local Hindutva outfit, Hindu Rakshak. Munawar had not spoken on this show yet, the interruptions led to his detention and then arrest.

By 3 January, Faruqui and five others were arrested on charges under Section 295-A (outraging religious feelings of any class by insulting its religion or religious beliefs), 298 (uttering words with deliberate intent to wound religious feelings), 269 (negligent act likely to cause spread of disease), 188 (disobedience to order duly promulgated by public servant) and 34 (common intention) of the IPC.

The MP Police has told several publications that they or the complainant do not have any evidence of Faruqui hurting any religious sentiments. Gaur claimed he had “overheard Munawar rehearsing the jokes.”

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Bail pleas filed by Faruqui’s lawyers before the local magistrate and the sessions court had previously been rejected. In the order by the sessions court on 5 January, the judge had said that “Grant of bail to the accused may give rise to the possibility of law and order issues.”

This is the third bail plea and the first one in the state’s high court. It had first been listed for hearing on 15 January, but because the police had not submitted the case diary the matter was adjourned to two weeks later.

“In the interim, we moved a application seeking early hearing. This was accepted, and now that is how matter is being heard on 25 January,” Faruqui’s counsel, advocate Anshuman Shrivastava, who was earlier the deputy advocate general for the state of MP, told The Quint.

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