WP(Crl.) 44/2018

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO.44 OF 2018
Priya Prakash Varrier and Others

Petitioner(s)

Versus
State of Telangana and Another

Respondent(s)

O R D E R
Dipak Misra, CJI

In the instant writ petition preferred under Article
32 of the Constitution of India, the petitioners, namely, the
actor, producer and director of the movie, have prayed for
quashing

of

F.I.R.

No.34

of

2018,

dated

14.02.2018,

registered at Falaknama Police Station, Hyderabad, Telengana.
That apart, a prayer has also been made that no F.I.R. should
be entertained or no complaint under Section 200 of the Code
of Criminal Procedure should be dealt with because of the
picturization of the song “Manikya Malaraya Poovi” by the
Signature Not Verified
Digitally signed by
CHETAN KUMAR
Date: 2018.08.31
17:55:14 IST
Reason:

petitioner No.1 in the film, namely, “Oru Adaar Love”.
2.

The grievance of the petitioners is that the said

song has been sung in various parts of the State of Kerala

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since

1978.

It

is

urged

by

the

learned

counsel

for

the

petitioners that the song has been picturized by petitioner
No.1 as a part of the movie and the said song, as averred in
the writ petition, is a mappila song which is a version of a
traditional Muslim song from the Malabar region of Kerala.
It is contended that the petitioners cannot be made liable
for the song being sung in the movie which is yet to be
released. It is not disputed that the song has been available
in Youtube and other mediums as a promotional venture.
3.

The F.I.R. in the matter has been lodged by the

intervenor, namely, M.A. Muqeeth Khan, son of Jawad Khan.
The allegation in the F.I.R. is that the song offends the
sentiments of a particular community.

The F.I.R. has been

lodged for an offence under Section 295A of the Indian Penal
Code.
4.

The pivotal issue that emerges for consideration is

whether Section 295A of the I.P.C. would get attracted to the
obtaining fact situation.
5.

We have heard Mr. Haris Beeran, learned counsel for

the petitioners, Mr. S. Udaya Kumar Sagar, learned counsel
for the State of Telangana and Mr. Pradeep Kumar Kaushik,
learned counsel for the intervenor.
6.

Section 295A of the I.P.C. reads thus:“295-A.
intended

to

Deliberate and malicious acts,
outrage religious feelings or

 WP(Crl.) 44/2018

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any class by insulting its religion or
religious beliefs.- Whoever, with deliberate
and malicious intention of outraging the
religious feelings of any class of citizens
of India, by words, either spoken or written,
or by signs or by visible representations or
otherwise, insults or attempts to insult the
religion or the religious beliefs of that
class, shall be punished with imprisonment of
either description for a term which may
extend to three years, or with fine, or with
both.”
7.

It is worthy to note here that the constitutional

validity of the said provision was assailed before this Court
and a Constitution Bench in Ramji Lal Modi vs. State of U.P.
A.I.R. 1987 SC 620, spoke thus:“8.
It is pointed out that S. 295A has
been included in chap. 15, Penal Code which
deals with offence relating to religion and
not in chap. 8 which deals with offences
against the public tranquillity and from this
circumstance it is faintly sought to be
urged, therefore, that offences relating to
religion have no bearing on the maintenance
of
public
order
or
tranquility
and
consequently a law creating an offence
relating
to
religion
and
imposing
restrictions on the right to freedom of
speech and expression cannot claim the
protection of cl. (2) of Art. 19.
A
reference to arts. 25 and 26 of the
Constitution, which guarantee the right to
freedom of religion, will show that the
argument is utterly untenable. The right to
freedom of religion assured by those Articles
is expressly made subject to public order,
morality and health. Therefore, it cannot be
predicated that freedom of religion can have
no bearing whatever on the maintenance of
public order or that a law creating an
offence relating to religion cannot under any
circumstances be said to have been enacted in
the interests of public order.
Those two
Articles
in
terms
contemplate
that
restrictions may be imposed on the rights

 WP(Crl.) 44/2018

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guaranteed by them in the interests of public
order.
9.
Learned
counsel
then
shifted
his
ground and formulated his objection in a
slightly different way.
Insults to the
religion or the religious beliefs of a class
of citizens of India, may, says learned
counsel, lead to public disorders in some
cases, but in many cases they may not do so
and,
therefore,
a
law
which
imposes
restrictions on the citizens' freedom of
speech and expression by simply making insult
to religion an offence will cover both
varieties of insults, i.e., those which may
lead to public disorders as well as those
which may not.
The law in so far as it
covers the first variety may be said to have
been enacted in the interests of public order
within the meaning of cl. (2) of Art. 19, but
in so far as it covers the remaining variety
will not fall within that clause.
The
argument then concludes that so long as the
possibility of the law being applied for
purposes not sanctioned by the Constitution
cannot be ruled out, the entire law should be
held to be unconstitutional and void. We are
unable, in view of the language used in the
impugned section, to accede to this argument.
In the first place cl. (2) of Art. 19
protects
a
law
imposing
reasonable
restrictions on the exercise of the right to
freedom of speech and expression “in the
interests of public order,” which is much
wider than “ for maintenance of” public
order.
If, therefore, certain activities
have a tendency to cause public disorder, a
law penalising such activities as an offence
cannot but be held to be a law imposing
reasonable restriction “ in the interests of
public order” although in some cases those
activities may not actually lead to a breach
of public order.
In the next place section
295A does not penalise any and every act of
insult to or attempt to insult the religion
or the religious beliefs of a class of
citizens but it penalises 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 perpetrated
with the deliberate and malicious intention
of outraging the religious feelings of that

 WP(Crl.) 44/2018

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class.
Insults
to
religion
offered
unwittingly or carelessly or without any
deliberate or malicious intention to outrage
the religious feelings of that class do not
come within the sanction.
It only punishes
the aggravated form of insult to religion
when it is perpetrated with the deliberate
and malicious intention of outraging the
religious feelings of that class.
The
calculated tendency of this aggravated form
of insult is clearly to disrupt the public
order and the section, which penalises such
activities, is well within the protection of
cl. (2) of Art. 19 as being a law imposing
reasonable restrictions on the exercise of
the right to freedom of speech and expression
guaranteed by Art. 19 (1) (a). Having regard
to the ingredients of the offence created by
the impugned section, there cannot, in our
opinion, be any possibility of this law being
applied for purposes not sanctioned by the
Constitution.
In other words, 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 Art. 19 (1) (a) and
consequently the question of severability
does not arise and the decisions relied upon
by learned counsel for the petitioner have no
application to this case.”
8.

The English translation of the song that has been

promoted is to the following effect:“She bloomed like a precious flower
in the sacred land of Mecca, great Khadeeja Beevi
was roaming in the sacred land
The lady roaming
She called for the respected lord, prophet
And send him for trade
She saw him and
Coveted him in the heart of hearts
She came back after trade
And She sought her hand
Sought her hand”

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9.

Learned counsel for the informant, who has filed an

application for intervention, would submit that he has no
problem with regard to the song as it is a folk song and is
in the public domain since 1978.
the manner of picturization.
10.

His grievance relates to

Be that as it may.

On a keen scrutiny of Section 295A and the view

expressed

by

the

Constitution

Bench

in

Ramji

Lal

Modi

(supra), we do not find that the said provision would be
attracted in the present case.

We are inclined to think so,

for the picturization of the said song solely because of the
‘wink’ would not tantamount to an insult or attempt to insult
the religion or the religious beliefs of a class of citizens.
The said song has been on Youtube since February, 2018.

We

do not perceive that any calculated tendency is adopted by
the

petitioners

to

insult

or

to

disturb

invite the wrath of Section 295A of the IPC.

public

order

to

In this regard,

we may refer to a three-Judge Bench decision in Manohar Lal
Sharma vs. Sanjay Leela Bhansali and Others (2018) 1 SCC 770,
wherein the Court observed thus:“A story told on celluloid or a play enacted
on a stage or a novel articulated in a broad
and large canvas or epic spoken with
eloquence or a poem sung with passion or
recited with rhythm has many a layer of
freedom
of
expression
of
thought
that
requires innovation, skill, craftsmanship
and,
above
all,
individual
originality
founded on the gift of imagination or
reality transformed into imagination or vice

 WP(Crl.) 44/2018

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versa.
The platform can be different and
that is why, the creative instinct is
respected and has the inherent protective
right from within which is called artistic
license.”
11.
and

In Mahendra Singh Dhoni vs. Yerraguntla Shyamsundar
Another

(2017)

7

SCC

760,

the

justification

for

the

registration of an F.I.R. under Section 295A had come up for
consideration before this Court. Appreciating the act done by
the petitioner therein, the Court quashed the F.I.R. for an
offence under Section 295A I.P.C.
12.

If

the

ratio

of

the

Constitution

Bench

is

appropriately appreciated, the said provision was saved with
certain riders, inasmuch as the larger Bench had observed
that 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

the

Constitution. The emphasis was laid on the aggravated form of
insult to religion when it is perpetrated with the deliberate
and malicious intention of outraging the religious feelings
of that class.
13.

As we perceive, the intervenor, who was an informant

in F.I.R. No.34 of 2018, in all possibility has been an
enthusiast to gain a mileage from the F.I.R., though the same
was really not warranted. What is urged before us is that
picturization

which

involves

the

actress

with

a

wink

is

 WP(Crl.) 44/2018

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blasphemous.

Barring

that

there

is

no

other

allegation.

Such an allegation, even if it is true, would not come within
the ambit and sweep of Section 295A I.P.C., as has been
explained in Ramji Lal Modi (supra).
14.

In view of the aforesaid, we allow the writ petition

and quash the F.I.R. No.34 of 2018. We also direct that no
F.I.R. under Section 154 or any complaint under Section 200
of

the

Code

of

Criminal

Procedure

should

be

entertained

against the petitioners because of the picturization of the
song.

However, there shall be no order as to costs.

..................CJI.
[Dipak Misra]

....................J.
[A.M. Khanwilkar]

....................J.
[Dr. D.Y. Chandrachud]
New Delhi
August 31, 2018.

 WP(Crl.) 44/2018

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ITEM NO.14

COURT NO.1

SECTION X

S U P R E M E C O U R T O F
RECORD OF PROCEEDINGS

I N D I A

Writ Petition (Criminal) No.44/2018
PRIYA PRAKASH VARRIER & ORS.

Petitioner(s)
VERSUS

THE STATE OF TELANGANA & ANR.

Respondent(s)

(With appln.(s) for intervention)
Date : 31-08-2018 These matters were called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE A.M. KHANWILKAR
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
For Petitioner(s)

Mr.
Mr.
Mr.
Mr.
Ms.

Haris Beeran, Adv.
Mushtaq Salim, Adv.
Usman Ghani Khan, Adv.
Dev Prakash, Adv.
Pallavi Pratap, AOR

For Respondent(s)

Mr. S. Udaya Kumar Sagar, Adv.
Mr. Mrityunjai Singh, Adv.
Mr. Pradeep Kumar Kaushik, Adv.
Dr. Sunil Kumar, Adv.
Mr. R.P. Goyal, Adv.

UPON hearing the counsel the Court made the following
O R D E R
The writ petition is allowed in terms of the signed
reportable order.
The

interlocutory

applications,

if

any,

disposed of.

(Chetan Kumar)
(H.S. Parasher)
A.R.-cum-P.S.
Assistant Registrar
(Signed reportable order is placed on the file)

stand