Rahul Gandhi Had No Nexus With Alleged Defamatory Publication: Karnataka High Court While Quashing BJP's Defamation Case

The Karnataka High Court on Tuesday (February 17) quashed proceedings against Congress leader Rahul Gandhi in a criminal defamation case filed by State BJP over an alleged defamatory advertisement and related social media posts, holding that the party was not the aggrieved person. 

In doing so the court further held that except for the use of his photo, Gandhi had no nexus with the alleged defamatory advertisement. 

The case arises out of the Congress party's “Corruption Rate Card” advertisement which claimed that various posts and transfers under the then-BJP government carried fixed “rates” and “commissions”. 

The BJP had alleged that the advertisement is defamatory, false, and based on “fanciful imagination”. The complaint also takes objection to the phrase “trouble engine Sarkar”, allegedly used instead of BJP's slogan “double engine Sarkar”, contending that it was intended to malign the party's reputation ahead of elections.

Justice Sunil Dutt Yadav in his order observed that the complainant before the trial Court is "Bharatiya Janata Party, represented by its State Secretary, BJP Karnataka, S.Keshava Prasad".

The court noted that the complaint appeared to indicate that the BJP's state unit, the government formed by the BJP in the stat earlier and the BJP political party have bee defamed by the advertisement. 

It however said that if the aggrieved party is a "national party"–BJP then he complaint ought to have been filed by the "duly authorized representative of the National Party". 

"However, the letter of authorisation is issued by the President of the State Unit to its Secretary of the State Unit as made out by Ex.C.1. Such authorisation of the President of the Sate Unit cannot be accepted as legal authorisation to represent the BJP as a National Party," the court said.

The court said that there was no material to indicate that the party had authorised the President of the Karnataka Unit to initiate proceedings and so the complainant party was not "represented by a competent person" and this vitiates the defamation proceedings. 

"The procedural requirement of complaint being brought before the Magistrate by "some person aggrieved" would require the entity defamed in the present case to bring the complaint. The complaint broadly appears to make out a case that it is the party that is the aggrieved  person...Insofar as accused No.4 (Gandhi) and his role in publication of the advertisement, a perusal of advertisement would indicate that except for the photograph of accused No.4 there is no other apparent nexus of accused No.4 with the advertisement.  In an action which seeks to fasten criminal liability, it must be demonstrated that the imputation made must be at the instance of a person who has mens rea to defame...In the absence of any material to show that the advertisement was at the instance of accused No.4, the reliance on the advertisement by itself could not lead to the assertion that it was published by accused No.4 with the requisite intention to defame," it said.

Referring to a memo, the court said that Gandhi may have been a leader of the Congress party but did not hold any position in the organizational hierarchy as on the relevant date when the advertisement was issued Gandhi was neither the President nor Vice President of Congress.

"A mere photograph on the advertisement would not be sufficient to indicate that the advertisement was at the instance of accused No.4 when the legal provision stipulates that the person must have requisite mens rea. The position of the accused No.4 is different and in contradistinction to the other accused and their nexus to the advertisement by virtue of their position and the contextual background of the complaint. It is however necessary to notice that the complainant's complaint also refers to tweet of accused No.4 wherein he is stated to have tweeted the advertisement along with certain additional remarks. It is stated that the said tweet in specific refers to BJP while forwarding the advertisement which would tie down accused No.4 as having defamed the complainant. However, strangely the text of the said tweet has not been marked along with other documents while sworn statement was recorded nor any Section 65B certificate produced in requisite format," the court said.

The court further said that the trial court when taking cognizance has made reference to documents which does not include the tweet. If the trial court order issuing process has been passed after the judge applied his mind to the material before him where such material in the form of tweet was not marked as an exhibit, then the material which would remain is only the advertisement, the court said.

"Sans the tweet, the advertisement by itself as noticed above cannot lead to any presumption of accused No.4 having defamed the complainant," the court said. 

The court said that where a functionary–such as an office bearer of the party is defamed, then such functionary would be the aggrieved person. It however said that in the present case, the imputation itself is by way of innuendo and such imputation is "sought to be stretched to the party".

"However, sans the tweet the advertisement by itself makes no reference to the party but rather makes an imputation to the functionaries mentioned in the advertisement. The reference that is made in the advertisement is to constitutional functionaries and Government employees being beneficiaries and to the irregularities in Government Schemes. None of the persons or entities referred to above are before this Court. Accordingly, the aggrieved person in the advertisement at Exhibit-C series factually cannot be the political party," the court held

The court further observed that there had been a series of procedural lapses as well since there is no enquiry under Section 202 of Cr.P.C. which is mandated where the accused is outside the territorial jurisdiction of the Court.

It said that the objective of such enquiry under Section 202 Cr.P.C. is to ensure that accused situated outside the territorial limits are not dragged into litigation before a Court without the Court being convinced of a prima facie case being made out to issue summons to the accused, after an enquiry.

"Considering that accused No.4 resides outside the territorial limits of the Court, non following of Section 202 of Cr.P.C. procedure has prejudiced the said accused and would also reveal a very casual approach of the complainant in not insisting for such enquiry before summons is issued to accused no.4.  The Court while issuing summons ought to apply its mind so as to ensure that the consequence of issuing process to an accused and thereby making him a part of the prosecution of the complaint cannot be done casually. The Court when issuing process has to make up its mind that atleast a prima facie case is made out against the accused. In the present case material before the Magistrate in the form of Ex.C1 to C14 consists only of  the advertisement and on the basis of such material as discussed above, no case is made out against accused No.4," the court said.

On the BJP's contention that Gandhi's tweet is found in the file and would be marked at a subsequent stage, the court however said that such explanation cannot cure the legal defect of not having the tweet on record when process was issued to Gandhi.

It said that marking of the Tweet though without 65B certificate would still have made a difference insofar as 65B certificate could have been produced at a subsequent point of time. However, in absence the marking of the tweet, the material before the trial Judge when process is issued is legally deficient as there is no material to connect Gandhi with the alleged offence. 

The plea was allowed. 

Case title: Rahul Gandhi v/s BJP

CRL.P 14473/2024

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