DELHI HIGH COURT
Anoop Kumar Mendiratta, J.
Dr. Shashi Tharoor – Petitioner
versus
State and Anr. – Respondent
Crl.M.C.1394 of 2020, Crl.M.A.5381 of 2020
Decided on 29.8.2024

IMPORTANT POINTS
(1) Defamation – ”BJP” is a determinate and identifiable body and complaint for defamation under Section 500 IPC is maintainable.
(2) Defamation – Right of a person against whom offence of defamation is committed to file a complaint independently is saved and is not barred by sub-section (2) and sub-section (4) of Section 199 Cr.P.C.
(3) Defamation – Reputation is an essential attribute of personality and violation of this right is actionable both a as a tort as well as a crime.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 482 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 528] – Indian Penal Code, 1860 – Section 500 [Bharatiya Nyaya Sanhita, 2023 – Section 356(2) – Defamation – When substantial justice and technical considerations are pitted against each other cause of substantial justice deserves to be preferred other side cannot claim to have vested right in injustice being done – Underlying object for exercising powers under Section 482 Cr.P.C. is to secure ends of justice and there is no limitation prescribed for seeking relief under Section 482 Cr.P.C. – Since offence under Section 500 IPC has a significant bearing on person’s right to life and liberty and if a complaint is made of defamation, Court exercising powers under Section 482 Cr.P.C. or in writ jurisdiction under Article 226 of Constitution of India, may interfere, if a clear case of abuse of process of law is made out – Petition cannot be thrown out at threshold on technical objection itself and issues should be examined to determine if a case of abuse of process has been made out or not.(Para 12)

(B) Indian Penal Code, 1860 – Section 500 [Bharatiya Nyaya Sanhita, 2023 – Section 356(2) – Criminal Procedure Code, 1973 – Section 482 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 528] – Defamation – Derogatory reference made to Primer Minister of India – Reputation is an essential attribute of personality and violation of this right is actionable both a as a tort as well as a crime – In offence of defamation, statements need to be considered in entirety and the manner the statement would be read or understood by a common person of ordinary prudence – Adding something to an original quote and giving it a selective context, supplying missing meaning and messages, is a crucial aspect which cannot be ignored – Comment (Scorpion sitting on a Shivling) exemplifies that Shri Narendra Modi is unacceptable with many in RSS establishment and compares expression of their frustration, as dealing with a leader with characteristics of a scorpion possessing a venomous instinct – Propagation of original comments in the manner done by petitioner amounts to defamation, considering text and relevant period during which defamatory imputation is made by modifications and additions – Once Magistrate has exercised his jurisdiction, it is not for High Court or even for Supreme Court, to substitute its own discretion for that of Magistrate or to examine case on merits with a view to find out whether or not allegations of complaint, if proved, would ultimately end in conviction of accused.(Paras 13, 14, 17, 18 and 20)

(C) Indian Penal Code, 1860 – Section 500 [Bharatiya Nyaya Sanhita, 2023 – Section 356(2) – Criminal Procedure Code, 1973 – Section 482 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 528] – Defamation – Derogatory reference made to Primer Minister of India – Defence of petitioner that imputation was in good faith and a fair reproduction of an earlier published article is a question of fact which can only be decided during course of trial – In exercise of powers under Section 482 Cr.P.C., it may be premature to give a definite finding on the basis of material on record that there was no element of bad faith on part of petitioner while imputing the statement in Literary Festival – There was sufficient material before Judicial Magistrate for summoning petitioner under Section 500 of IPC – Alleged imputations are admitted by petitioner and possibility of any manipulation in imputations is ruled out – No grounds are made out for quashing proceedings, at this stage, under Section 482 Cr.P.C. – It is expedient in interest of justice to permit proceedings before Trial Court to continue – Interim orders vacated.(Paras 24, 26 and 49)

(D) Criminal Procedure Code, 1973 – Section 199 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 222] – Defamation – Right of a person against whom offence of defamation is committed to file a complaint independently is saved and is not barred by sub-section (2) and sub-section (4) of Section 199 Cr.P.C. – Section 199(2) Cr.P.C. requires complaint to be initiated by Public Prosecutor on receipt of previous sanction of Competent Authority in State/Central Government in case offence of defamation is alleged to have been committed in respect of acts and conduct in discharge of public functions by concerned person.(Para 29)

(F) Indian Penal Code, 1860 – Section 500 [Bharatiya Nyaya Sanhita, 2023 – Section 356(2) – Defamation – A political party, as such, is a distinct definite identity which may expand or contract with addition or deletion of members but in no way is indeterminate, as members at any point of time can be determined and are definite – Constitutional recognition is enjoined on political party and is also a separate person apart from its members – “BJP” is a determinate and identifiable body and complaint for defamation under Section 500 IPC is maintainable.(Para 36)

Result: Quashing Petition dismissed.