Bombay High Court protects Kunal Kamra from arrest but allows probe to proceed; questioning only in Chennai

The Bombay High Court on Friday granted protection from arrest to stand-up comic Kunal Kamra in the first information report (FIR) registered against him by the Mumbai Police for his 'gaddar' (traitor) remark directed at Maharashtra Deputy Chief Minister Eknath Shinde..A Bench of Justices Sarang Kotwal and SM Modak refused to stay the probe for the time being but said that if the police want to question Kamra, they would have to do it in Chennai since Kamra resides in Tamil Nadu.The directions were passed in a plea by Kamra seeking quashing of the FIR.Pertinently, the Court also said that if chargesheet is filed by the Mumbai police during the pendency of Kamra's present petition before the High Court, the trial court shall not procced against Kamra. The Court had on April 16 granting interim protection to Kamra from arrest which has now been made permanent. .In a nutshell.- Kamra not to be arrested;- Mumbai Police can continue probe in the FIR;- If Kamra (a resident of Tamil Nadu) has to be questioned, it has to be done in Chennai;- If police file chargesheet, trial court should not proceed till High Court decides the quashing petition filed by Kamra..Background.The FIR was filed following a complaint by Shiv Sena legislator Muraji Patel after Kamra, during a performance of his stand-up show Naya Bharat, allegedly referred to Shinde as a 'gaddar'. The remark was seen as a reference to Shinde’s political defection from the Uddhav Thackeray-led Shiv Sena to join hands with the BJP, which led to a dramatic split in the party and the rise of a new ruling coalition.Kamra was booked under Sections 353(1)(b), 353(2), and 356(2) of the Bharatiya Nyaya Sanhita (BNS). The FIR was registered in Mumbai's Khar, although Kamra resides in Tamil Nadu. He was initially granted interim anticipatory bail by the Madras High Court before he approached the Bombay High Court to seek quashing of the FIR..Arguments.Appearing for Kamra, Senior Advocate Navroz Seervai argued that the FIR was filed in a hasty and arbitrary manner, with no proper preliminary enquiry. He noted that it was registered within just over an hour of the police receiving information, describing the process as “perverse” and indicating “non-application of mind.”Seervai also challenged the invocation of criminal defamation through an FIR, asserting that defamation is a non-cognizable offence and must be pursued through a private complaint. He contended that similar expressions and political criticisms had been made publicly by other leaders, including Ajit Pawar and Uddhav Thackeray, without drawing criminal proceedings..He emphasized that Kamra’s performance was satirical in nature and protected by the constitutional right to free speech. “You may not like it. You will be criticised. One judgment says politicians should have thick skin. It can’t be used to crush freedom of speech,” he argued.Seervai further revealed that Kamra has received hundreds of death threats since the controversy began, including threats of physical violence and posters calling for his execution. Despite this, the police insisted on his physical presence for inquiry, raising serious concerns for his safety.He also contested the applicability of Section 353 of the BNSS, which concerns public alarm or promotion of enmity between groups. “There is no identification of groups… All political parties are competitors and behave with malice with each other. They don’t need a stand-up comedian for that,” he said, adding that political parties cannot be construed as “communities” under the section..Public Prosecutor Hiten Venegaonkar, appearing for the State, defended the FIR and the application of the relevant sections. He claimed that Kamra’s remarks were not political satire but amounted to a targeted attack on a public figure. He also said preliminary verification was conducted before registering the FIR.Venegaonkar informed the Court that the video had incited public unrest, including vandalism of the studio where the performance was delivered and incidents in Thane district. While he conceded that defamation under Section 356 is a non-cognizable offence that must be initiated privately, he maintained that the FIR was valid due to the presence of other cognizable offences.In response to the Court’s concern regarding Kamra’s safety, the prosecutor assured that the State would extend protection if requested.Following arguments, the Court had reserved its order and had granted Kamra protection from arrest..Order .In its order delivered today, the Court noted that there are larger issues of freedom of speech that needs to be seen."Thus, there are larger issues of fundamental right of freedom of speech guaranteed under Article 19(1)(a) of the Constitution canvassed by Mr.Seervai against the restrictions put on that right under Article 19(2) as canvassed by Mr. Venegavkar which included the aspect of decency, morality and public order. All these questions raised by both the sides deserve serious consideration. Hence, arguable points are raised and, therefore, we are inclined to admit this petition."Subsequently, it refused to stay the investigation. However, it granted interim protection to Kamra from arrest."In the background of the above discussion, we are not inclined to grant complete stay on the investigation of this case which is still in progress. The Petitioner has also shown willingness to give his own statement. It is the case of the petitioner that he has been receiving death threats, therefore, his security is of concern. To that extent, some protection can be granted to him. Learned counsel for the petitioner has submitted that the statement can be recorded in Chennai if reasonable notice is given to the petitioner. Therefore, the investigation can continue, however, it is not necessary to arrest the petitioner," the Court said..Appearance.Senior Advocate Navroz Seervai along with advocates Arti Raghavan, Ashwin Thool, Ayush Singh, Archishmati Chandramore, Sarthak Bharsakle and Mohammad Abdi instructed by advocate Meenaz Kakalia appeared for Kamra.Public Prosecutor HS Venegaonkar along with Additional Public Prosecutor MM Deshmukh appeared for the State.Advocate Brijesh Shukla appeared for complainant Muraji Patel..[Read Order]