Delhi HC refuses to quash proceedings against Dr. Shashi Tharoor for making defamatory statements against PM Modi

Delhi High Court: In a petition under Section 482 of the Code of Criminal Procedure, 1973 ¹ (‘CrPC’) preferred by Dr. Shashi Tharoor, a Member of Parliament and leader of the Indian National Congress (‘INC’) to challenge the order dated 27-04-2019 passed by the Additional Chief Metropolitan Magistrate-I (‘ACMM-I’), Rouse Avenue Courts, New Delhi wherein Dr. Shashi Tharoor had been summoned for commission of offence under Section 500 of the Penal Code, 1860 ² (‘IPC’), a Single Judge Bench of Anoop Kumar Mendiratta, J. did not find any ground to quash the proceedings and directed the parties to appear before the Trial Court on 10-09-2024.

Background

As per the facts of the present matter, Dr. Shashi Tharoor addressed the audience at the Bangalore Literature Festival on 28-10-2018 and made a defamatory comment wherein he quoted lines from the article of an unnamed RRS source which had been published by the Caravan magazine and said that “Mr. Modi is like a scorpion sitting on a Shivling; you cannot remove him with your hand, and you cannot hit it with a chappal either.” Dr. Shashi Tharoor went on to support the statement with his own opinions as well.

A complaint under Section 200, CrPC ³ for the commission of offence under Section 499/500, IPC ⁴ was filed by one of the Vice Presidents (‘VP’) of the Bharatiya Janta Party (‘BJP’) (respondent 2) wherein, he stated that the Prime Minister of India is a supreme leader of BJP and that the said statement by the petitioner was baseless, unfounded, misleading, and defamatory.

The complaint also mentioned that the unknown RSS source had allegedly made the remarks in 2012, but Dr. Shashi Tharoor made the statement in October 2018 deliberately since Mr. Narendra Modi was leading the country at the time as Prime Minister of India.

It was said that the statement was stated to have been made to defame Narendra Modi, hurt the sentiments of crores of devotees of Lord Shiva, lower the credit and image of the VP of BJP, RSS, and tarnish the image of BJP in the eyes of the general public.

The speech had been widely reported and was claimed to be an intolerable abuse and absolute vilification of the faith of millions of devotees of Lord Shiva.

Further, the VP of BJP mentioned that since the media houses had published the said speech, he was visited by a person in the party office on 01-11-2018 who passed certain statements in the presence of other persons which lowered his credit and image in the eyes of others.

Analysis and Decision

The Court noted that the VP of BJP challenged the maintainability of the present petition on grounds of delay and laches while submitting that the proceedings under Section 482 CrPC had been initiated with the intent of delaying the trial. It was well-settled that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred since the other side cannot claim to have a vested right in injustice being done.

Further, the Court said that since the offence under Section 500, IPC has a significant bearing on the person’s right to life and liberty and if a defamation complaint is made, the Court exercising powers under Section 482, CrPC or in writ jurisdiction under Article 226 of the Constitution, may interfere if a clear case of abuse of the process of law is made out. Thus, the Court said that the objection raised on the maintainability was without any merits.

The Court stated that in an offence of defamation, it is important to underline that the statements need to be considered in entirety as well as the manner in which the statement would be read/understood by a common person of ordinary prudence. It was also said that adding something to an original quote and giving it a selective context, supplying the missing meaning and messages, was a crucial aspect that could not be ignored.

The Court stated that in case any adverse qualification had been attributed by Dr. Shashi Tharoor with the intention to harm or lower the reputation or knowing or having reason to believe that such imputation would harm the reputation of such person, the same would amount to defamation.

The Court found it crucial to notice that the article in Caravan did not name any source that Dr. Shashi Tharoor had relied upon. Further, he mentioned the name of ‘Mr. Modi’ as the person who was referred to by the RSS leader concerned even though the excerpt from the magazine did not reveal any such name. It was also said that the understanding of the metaphor was exemplified by Dr. Shashi Tharoor by linking the statement with the complex dynamics that existed between the Hindutva movement and the ‘Moditva’ expression of it.

The Court said that the statement had to be seen from the perspective of what an ordinary person would understand to be the actual message being conveyed between the lines. It was also noted that ‘Mr. Modi’ had a direct reference to the Prime Minister who also represented BJP as the legislative head, and the imputation compared ‘Mr. Modi’ to a scorpion sitting on a Shivling.

The Court viewed that the propagation of the original comments in the manner done by the petitioner amounted to defamation, considering the text and the relevant period during which the defamatory imputation was made by modifications and additions.

The Court referred to Nagawwa v. V.S. Konjalgi (1976) 3 SCC 736 wherein the Supreme Court observed that in proceedings under Section 202 CrPC ⁵, the accused has no locus standi at the stage of issue of process and is not entitled to be heard on the question of whether the process should be issued against him or not.

The Court said that the Magistrate, in proceedings like the ones in the present matter, can consider the inherent improbabilities appearing on the face of the complaint or in the evidence led to support the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him.

Further, the Court stated that once the Magistrate had exercised his jurisdiction, it is not for the High Court or even the Supreme Court to substitute its own discretion for that of the Magistrate or to examine the case on merits to find out whether or not the allegations of the complaint, if proved, would ultimately end in the conviction of accused.

The Court opined that the defence of the petitioner stating that the imputation was in good faith was a question of fact that could be decided during trial. It was also said that in exercise of Section 482 of CrPC, it would be premature to give a definite finding that there was no element of bad faith on Dr. Shashi Tharoor’s part and that there was enough material before the Judicial Magistrate for summoning him under Section 500, IPC.

The Court noted that another contention that had been raised by Dr. Shashi Tharoor was that a newspaper report by itself does not constitute evidence of the contents thereof and is only hearsay evidence. The Court also noted another contention wherein the summoning order was urged to be bad in law since the alleged newspaper reports were not proved.

The Court opined that even though a newspaper report by itself, at best, may be secondary evidence, the evidence by way of video clippings which were relied on by the VP of BJP had been widely circulated on the internet, which could not be overlooked.

It was stated that the summoning order could not be held to be premature merely on the grounds that the newspaper reports had not been proved by summoning the relevant witness at the pre-summoning stage.

Further, the Court noted the contention of Dr. Shashi Tharoor wherein it was stated that the complaint was not maintainable since Section 199 (4), CrPC provided that if defamation is committed against the constitutional functionaries and public servants, no complaint shall be made by the Public Prosecutor in the absence of previous sanction of the competent authority in the State/Central Government.

The Court said that Section 199(2), CrPC requires the complaint to be initiated by the Public Prosecutor in case defamation is alleged to have been committed in respect of the acts and conduct in the discharge of public functions by the concerned person. The Court referred to Manoj Kumar Tiwari v. Manish Sisodia 2022 SCC OnLine SC 1434 wherein the Supreme Court held that the right of an individual is saved under sub-section (6) even if he falls under the category of persons mentioned in sub-section (2).

Thus, the Court stated that the complaint by the VP of BJP was not barred by sub-section (2) and sub-section (4) of Section 199 CrPC.

While considering the issue of whether the political party could be considered an identifiable, definite, and determinate body and whether the VP of BJP fell within the ambit of ‘person aggrieved’, the Court referred to Explanation 2 of Section 499, IPC and said that it was important to underline that if a collection of persons or an association or company is defamed, any of the members representing such company/association/collection of persons may file a complaint but the imputation must be shown to be defamatory to the persons mentioned above.

The Court said that a political party is a distinct definite identity as the members at any point in time can be determined and are definite. Thus, the Court opined that BJP is a determinate and identifiable body and the complaint for defamation under Section 500, IPC was maintainable. The Court also observed that if a well-defined class is defamed, every member of that class could maintain a complaint.

Further, the Court referred to John Thomas v. K. Jagadeesan (2001) 6 SCC 30 wherein it was observed that ‘some person aggrieved’ indicated that the complainant need not necessarily be the defamed person himself. Thus, the Court said that it is implicit that if a political party is defamed, a complaint by a high-ranking functionary of the party may be maintained and the members may also file the complaint if they can prove that they also stand defamed.

The Court said that prima facie the imputations against the sitting Prime minister were despicable and deplorable and the imputations also defamed the BJP as well as its office bearers and members. It was said that since the complaint was filed by the Vice President of BJP, he fell within the ambit of ‘some aggrieved person’ under Section 199, CrPC.

Lastly, the Court held that no grounds were made for quashing the proceedings under Section 482, CrPC, and permitted the proceedings to continue before the Trial Court in the interest of justice.

While dismissing the petition, the Court directed the parties to appear before the Trial Court on 10-09-2024.

[Dr. Shashi Tharoor v. State, 2024 SCC OnLine Del 6005, Decided on 29-08-2024]

Advocates who appeared in this case :

For Petitioner — Sr. Advocate Kapil Sibal, Advocate Muhammad Ali Khan, Advocate Abhik Chimni, Advocate Omar Hoda, Advocate Eesha Bakshi, Advocate Uday Bhatia, Advocate Arjun Sharma, Advocate Kamran Khan

For Respondent — ASC Nandita Rao, Advocate Amit Peshwani, Sr. Advocate Pinky Anand, Advocate Neeraj, Advocate Saudamini Sharma, Advocate Samarth Pasricha, Advocate Ojasvi