Calcutta High Court: Shampa Sarkar, J. stayed the investigation in a matter which came up over an artist’s Facebook post containing intimate image of Lord Krishna and Radha.

The writ petitioner, an artist had posted a portrait of Lord Krishna, which had been displayed in the Christie’s, an auction house. The picture is a depiction of an intimate scene between Lord Krishna and Radha, influenced by Geet Govinda which an epic love poem of Jaya Deva. The petitioner contended that the Facebook post within a specified group of artists, namely, ‘Akiyader Adda’ could not be treated as an offence under Section 295A of the Penal Code, 1860 read with Section 67 of the Information Technology Act, 2000. It was submitted that the complaint did not disclose an offence. The complainant had alleged that the post may hurt religious sentiments and incite communal hatred.

The Court noted that the complaint prima facie does not disclose any cognizable offence. It has been legally settled that the provisions of Section 295A of the Penal Code would be attracted when there is an intention to deliberately hurt religious sentiments.

The registration of the FIR, in the prima facie view of the Court, amounted to curtailment of the right to freedom of speech under Article 19(1)(g) of the Constitution of India, and also the liberty of the petitioner. The court further pointed out that the complaint was filed on an apprehension that the post may hurt religious sentiments, although the said picture is available publicly at art galleries and in different illustrated and translated version of Geet Govinda.

Advocate appearing for the State respondents submitted that the FIR was lodged by the Cyber Crime Police Station and the same was forwarded by the Superintendent of Police, on the basis of the order of the Chief Metropolitan Magistrate, Calcutta.

The Court directed that the investigation shall remain stayed for a period of three months and the inspector-in-charge was asked to produce the order of the Metropolitan Magistrate, on the basis of which the investigation was started only after which the decision as to whether this writ petition shall be heard on the facts and law pleaded or the petitioner will be relegated to the appropriate forum under Section 482 of the Criminal Procedure Code, 1973 on perusal of the records to be produced by the investigating officer will be taken.

Matter to be taken up on 01-11-2022.

[Jayarshi Bhattacharya v. State of West Bengal, WPA 9658 of 2020, decided on 03-08-2022]

For petitioner: Advocate Bikash Ranjan Bhattacharya

For State: Advocates Lalit Mohan Mahata, Prasanta Behari Mahata

*Suchita Shukla, Editorial Assistant has reported this brief.

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