Madhya Pradesh High Court: In an anticipatory bail application filed by cartoonist Hemant Malviya in an FIR filed against hm under Sections 196, 299, 302, 352, and 353(3) of Bhartiya Nyaya Sanhita, 2023 (‘BNS’) and Section 67-A of the I.T. Act, 2000 (‘IT Act’) for an offensive caricature depicting the Rashtriya Swayamsewak Sangh (‘RSS’) and Prime Minister Narendra Modi, the Single Judge Bench of Subodh Abhyankar, J., rejected the application, holding that the Sections 41(1)(b)(i) and (ii) of the Code of Criminal Procedure, 1973 (‘CrPC’) would be attracted against Malviya who overstepped the threshold of freedom of speech and expression. Accordingly, the Court held that his custodial interrogation was necessary.
Background
Hemant Malviya drew a caricature, purportedly against the RSS and PM Modi, which offended the complainant’s religious fervour, temperament, and sentiments. Aggrieved, they filed an FIR against Hemant.
The caricature showed the RSS in a human form with the RSS uniform. The man was bending over with his shorts pulled down and exposing his bottom to the caricature of the Prime Minister, who was shown with a stethoscope around his neck and holding an injection in his hand. He was further shown to be administering the injection on the bottom of the man. The caricature was captioned with,
Hemant further commented that the audience was free to use his cartoons with their own captions.
Malviya contended that he had drawn the caricature in his satirical work, which was published on his Facebook page, and it was open for all to access.
Analysis
The Court opined that, prima facie, Malviya’s conduct in depicting the RSS, a Hindu organisation along with the Prime Minister, coupled with his endorsement of a rather demeaning remark and dragging the name of Lord Shiva unnecessarily in the caption, was nothing but the sheer misuse of the freedom of speech and expression as enshrined under Article 19(1)(a) of the Constitution, and fell under the definition of offence as contended by the complainant.
The Court remarked that the cartoon became more unsettling when the aforesaid derogatory lines involving Lord Shiva were added, which were favourably endorsed by Malviya, who encouraged other people to experiment with the said caricature. The Court stated that this could certainly not be said to be made in good taste or faith.
“It is apparent that the act is deliberate and malicious, intended to outrage religious feelings of the complainant and the public at large by insulting its religion, which is prejudicial to the maintenance of harmony in the society.”
Thus, the Court held that Sections 41(1)(b)(i) and (ii) of the CrPC would be attracted against Hemant, who had demonstrated his propensity to commit the said offence and to promote the same in future, without recourse of the benefit of Section 41-A of the CrPC or Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The Court added that the benefit of the dictum in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 would also not be available to him.
The Court rejected Malviya’s attempt to draw a comparison of his work with the work of famous cartoonist R.K. Laxman, stating that no such similar caricature drawn by R.K. Laxman or any other noted cartoonist was brought to the attention of the Court.
The Court stated that Malviya ought to have used his discretion while drawing the aforesaid caricature; he clearly overstepped the threshold of freedom of speech and expression, and did not appear to know his limits. Accordingly, the Court held that his custodial interrogation was necessary.
Thus, the application was rejected.
[Hemant Malviya v. State of Madhya Pradesh, Misc. Criminal Case No. 24617 of 2025, decided on 03-07-2025]
Advocates who appeared in this case :
For the applicant: Rishabh Gupta
For the respondent: Government Advocate Amit Raval
For the objector: Govind Rai Purohit
Buy Code of Criminal Procedure, 1973 HERE
Buy Constitution of India HERE
