Mumbai: Bombay High Court has quashed and set aside a 2014 case filed in a Ludhiana magistrate's court against singer Kailash Kher for allegedly hurting a man's religious feelings in his song on Lord Shiva.

"Merely because he is singing the song being surrounded by a large number of people who have independently performed the role assigned to them by the director, according to us, the ingredients of Section 295A are not made out," said Justices Bharati Dangre and Shyam Chandak on Thursday.

The criminal complaint was filed by Narinder Makkar, ‘a worshipper of Lord Shiva', under IPC sections 295A (deliberate and malicious acts intended to outrage religious feelings) and 298 (uttering words etc with deliberate intent to outrage religious feelings).

He said Kher is singing the song ‘Babam Bam' in his album ‘Kailasa Jhoomo Re' with a girl ‘wearing clumsy and very short clothes', ‘a boy and girl are kissing each other', and ‘vulgarity is being shown in the song'."

Since Augusut 2014, the High Court protected Kher from arrest. Kher's advocate Ashok Saraogi argued that the choreography and picturisation of the song is the concept of the producer and director. He played the song on a laptop. The judges said Kher is seen singing "with a clapper drum (damaru) and he is surrounded by a mob (sic) of people dancing around."

There is no allegation in Makkar's complaint that the song's lyrics outraged his religious feelings. Also, there is the absence of the deliberate and malicious intention on the part of Kher "who is just singing the song, and in any case, he is not the producer of the album nor has he directed its filming/recording."

The judges noted every action which may be to the dislike of a class of people may not necessarily lead to outraging religious sentiments, as a person can be foisted upon with Section 295A if his action is intentional and malevolent… and would not cover an act which is not intended to outrage religious feelings.

While safeguarding freedom of speech, the burden lies on the complainant to prove ingredients of Section 295A "as it is an offence more serious than the one punishable" under Section 298.

Regarding the latter, similarly, Makkar failed to make out a prima facie case, adding: "The lyrics of the song sung by the petitioner is nothing but praise of Lord Shiva and the attributes of his mighty character and nothing else."