- The sheer magnanimity of reputational injury caused by
posting defamatory content against a person who holds his reputation
dear to him, which may often be dismissed as a mere tweet or
retweet, has been urged to be examined, persuading this Court to
adjudicate this critical issue since now the Cyber World turns
Whispers into Symphony. - In today‟s digital age, the dynamics of law change, as
exemplified by the present case, where this Court has been posed
with a situation where reputational harm has been alleged by the
complainant by a repost in cyberspace. In this evolving digital age,
physical damage to someone‟s reputation is not the only possibility
but it is the cyber world which now has taken over the real world,
where if any defamatory statement is made, the effect of reputational
harm is amplified. In the realm of defamation, statements made in
the physical world may resemble a mere whisper, but when
echoed in the cyber domain, the impact magnifies exponentially. - The issue before this Court through the present petition is one
which requires this Court to lay down certain principles based on
jurisprudence of defamation, in the light of the evolution of
cyberspace, and its extensive usage as a means to damage the
reputation of someone. The Court is posed with a situation where an
alleged defamatory content has been posted by an original author,
CRL.M.C. 6347/2019 Page 4 of 50
and then the same content has been retweeted/reposted on the popular
social media platform „Twitter‟ (now ‘X’) by the present petitioner. - While the Courts may still struggle, faced with issue as to what
will amount to „publishing‟ and whether „re-tweeting‟ of a
defamatory content also amounts to publishing so as to be covered
under the definition of Section 499 of Indian Penal Code, 1860
(‘IPC’), the concerns arising out of such vast reach of defamatory
content and corresponding reputational injury to a person has given
rise to the following important question of law:
Whether ‘Retweeting’ any defamatory
content will be covered in the meaning of
‘publication’ or not, in terms of Section
499 of IPC & whether the act of the
person ‘retweeting’ such content though
not being the original author of the tweet,
will also be liable to attract action under
Section 499 of IPC or can he take refuge
under the argument that he was not the
original author of the content? - In case reported as 2017 SCC Online Delhi 1191, this Court
had observed that it was for the Trial Court to decide if retweeting an
allegedly defamatory content/tweet would attract rigours of Section
499 of IPC or not, by way of a full fledged trial. These observations
are as under:
“26. …Whether retweeting would attract the liability
under Section 499 IPC, is a question which requires to be
determined in the totality of the circumstances and the
same will have to be determined during trial and any
CRL.M.C. 6347/2019 Page 5 of 50
interference at this stage by this court is likely to
prejudice the findings of the Trial Court…” - In this background, this Court is of the opinion that whether a
retweet is defamatory in content or not, so as to attract rigours of
Section 499 of IPC, will of course be a matter of trial. However,
whether ‘Retweeting’ by a person, a defamatory content, will amount
to ‘publication’ or not so as to form the ingredient of Section 499 of
IPC for the purpose of summoning of an accused, will essentially
have to be decided prior to commencement of the trial. It is not the
issue for adjudication before this Court in the present case to return a
finding as to whether it was proved beyond doubt that the retweet in
question was defamatory or not. The issue before this Court is the
critical issue as to whether a retweet in itself, being not
considered as original content by an original author, can form
the basis of summoning an accused for offence under Section 499
of IPC. - This major issue being at the centre of controversy in multiple
cases pending before this Court reveal the difficulties currently faced
by Trial Courts in this regard and has persuaded this Court to take a
comprehensive look at this issue for the purpose of summoning an
accused.
BACKGROUND FACTS - On 06.05.2018, one Sh. Dhruv Rathee i.e. original author of
the impugned/alleged defamatory content had uploaded a video on
YouTube, wherein inter alia, certain allegations were made against
CRL.M.C. 6347/2019 Page 6 of 50
respondent no. 2 which has been referred to as ‘First Offending
Publication’ in the petition. On 07.05.2018, Sh. Dhruv Rathee
published on his Twitter account, an allegation that the Information
and Technology („IT‟) Cell of Bharatiya Janata Party („BJP‟) had
attempted to bribe a person to defame Sh. Dhruv Rathee and he had
drawn a reference to Uniform Resource Locator („URL‟) of the first
impugned publication, which has now been termed as ‘Second
Offending Publication’ in the petition. On 07.05.2018, the petitioner
herein, Sh. Arvind Kejriwal had reposted i.e. „retweeted‟ the second
offending publication of Sh. Dhruv Rathee, which is termed as the
‘Impugned Publication’, and which read as under: - On 28.02.2019, a complaint was filed by the
complainant/respondent no. 2 Sh. Vikas Sankritayan @ Vikas
CRL.M.C. 6347/2019 Page 7 of 50
Pandey, against the petitioner Sh. Arvind Kejriwal, for initiating
proceedings against him for commission of offences punishable
under Section 499/500 of IPC.
The Allegations - Respondent no. 2 states that he is the founder and operator of
popular social media page “I SUPPORT NARENDRA MODI”, and
that it shows true and correct information, and has a following of
over crores of persons on his social media handles. He alleges that
Sh. Dhruv Rathee, who claims to be an engineer and lives in
Germany, operates a YouTube channel under the name and style of
„Dhruv Rathee‟ and has a huge following, and as on date of filing of
complaint, he had 16,26,422 subscribers. According to the complaint
filed alongwith the supporting evidence before the learned Trial
Court, a YouTube video with the title “BJP IT Cell Part-2” was
circulated by Sh. Dhruv Rathee on 06.05.2018, wherein certain
defamatory statements were made against respondent no. 2, extracts
of which are reproduced hereinbelow:
“…Vikas Pandey is the Second-in-Command of the BJP
IT Cell. Through his Social Media Page, “I Support
Narendra Modi”, which is linked by more than 1 Crore
50 Lakh people, Vikas Pandey spreads fake news. Vikas
Pandey has offered a bribe of Rs. 50 Lakhs to Mahavir
Prasad through one Abhishek Mishra”.
“… Yahaan pe aap dekh sakte hain dosto Mahavir pura try
kar rha hai ki kisi trah se Vikas Pandey se directly phone
pe baat ho jaaye uski, qki agar uski audio recording
saamne aa gyi to puri tarah se inka game over ho jaana
tha. Lekin unfortunately iski audio recording saamne nahi
aa payi, yahi ek reason hai ki mene is video ko upload
CRL.M.C. 6347/2019 Page 8 of 50
karne me bhi 2 mahine laga diye, usko do mahine guzar
chuke hain. Qki me bhi try kar rha tha Mahavir ko bolne
ki. .. ki tu is tarah se try kar … tu us tarah se try kar …
kiisse directly phone par baat ho jaaye, wo audio
recording mil jaati to boht sahi ho jaata. Lekin kher nahi
mil paayi, ye bhi boht achha proof hai mujhe lagta hai, ye
bhi boht definite proof hai ki BJP IT Cell aise gande
kaam karta hai
…. Or dekh abhi, bhi time hai galti hui hai tujhse uske liye
rl,laafi maang Ie, ek naya video bana or desh ki janta se
sorry bol de ki haan mene ye galti kari pr me iske liye
maafi mangta hu. Or desh ko sach bata ki Vikas Pandey
or BJP IT Cell ke baare me, qki ye log desh” ko tabah
karne me lage “- hue hain, itni nafrat faila rahe hain aaj
ke time me …..
…. Is video ko share kijiye dosto or janta fak sach
pahunchaaiye iske baare me ….”
- Thereafter, Sh. Dhruv Rathee had also shared the URL of the
defamatory video on his Twitter account. - It is alleged that the petitioner herein had then retweeted the
said defamatory content from his Twitter account, without checking
the authenticity of the video, prior to spreading it to the public at
large. It is further alleged that Sh. Arvind Kejriwal is followed by a
large number of people, and by retweeting the offending content, he
had made available the defamatory content to a large number of
audience, at national and international level. - He further alleged that two of his friends namely Sh. Abhishek
Kulshrestra and Sh. Punit Agrawal had called him to express their
dismay with regard to the allegations made against him.
History of Judicial Proceedings - The respondent no. 2 was examined under Section 200 of the
CRL.M.C. 6347/2019 Page 9 of 50
Code of Criminal Procedure, 1973 (‘Cr.P.C.’) at the pre-summoning
stage, as he had filed the complaint under Section 499/500 of IPC on
the allegations mentioned above. The petitioner was summoned as an
accused by the learned Additional Chief Metropolitan Magistrate-I,
Rouse Avenue Courts, New Delhi (‘Trial Court’) vide order of
summoning dated 17.07.2019. - Being aggrieved by the issuance of summons and the
complaint filed by the respondent no. 2, the petitioner had preferred a
revision petition before the Sessions Court which was dismissed vide
order dated 30.10.2019 by learned Additional Sessions Judge/Special
Judge (PC Act) CBI-09, Rouse Avenue Courts, New Delhi (‘Sessions
Court’). - Aggrieved by the aforesaid orders passed by the learned Trial
Court and Sessions Court, the petitioner Sh. Arvind Kejriwal has
approached this Court by way of present petition under Section 482
of Cr.P.C. seeking setting aside of the order dated 17.07.2019 passed
by the learned Trial Court in in Ct.Case No.15/2019, and order dated
30.10.2019 passed in Criminal Revision No. 28/2019 by the learned
Sessions Court.
ARGUMENTS ON BEHALF OF PETITIONER - Sh. Manish Vashishth, learned Senior Counsel appearing on
behalf of the petitioner, while assailing the orders passed by both the
learned Trial Court and Sessions Court, argues that the learned Trial
Court has summoned the petitioner in a mechanical manner and has
presumed the alleged statements/re-tweet to be defamatory on the
CRL.M.C. 6347/2019 Page 10 of 50
face of it, without even properly examining the same. It is stated that
summoning is contrary to the settled principles of law since the
Magistrate has to carefully scrutinize the evidence brought on record
and must satisfy itself that the ingredients of the alleged offence are
made out, which was not done in this case. It is argued that a bare
perusal of the retweet in question would show that the same does not
constitute any offence of defamation as the offence of defamation,
besides the requirement of mens rea, should consist of three essential
ingredients i.e. (i) making or publishing any imputation concerning
any person, (ii) such imputations must have been made by words
either spoken or intended to be read or by signs or by visible
representations, and (iii) the said imputation must have been made
with the intention to harm or with knowledge or having reason to
believe that it will harm the reputation of the person concerned. It is
submitted by learned Senior Counsel that the impugned orders failed
to appreciate that the alleged re-tweet was not done with intent to
harm respondent no. 2, nor was it likely to harm him in any manner.
It is further argued that the learned Trial Court has failed to consider
that admittedly, the entire version deposed by PW-2 is hearsay, and
an expression of dismay is not defamation. It is contended that the
best case as alleged by the respondent no. 2 is that the petitioner has
retweeted a link of some video, of which neither the petitioner was
creator/author nor publisher of the same, and thus, essential
ingredients of the defamation are not attracted in the present case as
the same would not amount to publication in terms of ingredients of
Section 499 of IPC. It is also stated that the learned Trial Court, while
CRL.M.C. 6347/2019 Page 11 of 50
passing the impugned summoning order, has failed to consider the
exceptions provided under Section 499 of IPC, including the
exception of public good, and has recorded an erroneous finding that
at this stage, the consideration is whether there exists sufficient
grounds to summon or not. - Further, it is also argued by learned Senior Counsel for the
petitioner, that the respondent no. 2 had initially filed a complaint i.e.
Ct. Cases 5786/2018 in Saket Courts, South East District, Delhi and
on 18.10.2018, he had got his statement recorded before the
concerned Magistrate and had withdrawn the complaint qua the
petitioner, and accordingly the proceedings qua the petitioner herein
were dropped. It is submitted that withdrawal/dropping of
proceedings qua an accused in complaint case amounts to acquittal of
the accused as per Section 257 of Cr.P.C, therefore, no cause of
action whatsoever survives against the petitioner herein and the
respondent no. 2 cannot be allowed to bypass the mandate of law by
filing a fresh complaint case. It is therefore argued that respondent
no. 2 had withdrawn his earlier complaint qua the petitioner and had
instituted a subsequent complaint against the petitioner alleging that
the petitioner through his retweet had defamed the respondent no. 2,
without arraying the other accused persons in the present complaint.
It is submitted that only recourse available to the respondent no. 2
was to approach this Court under Section 407 of Cr.P.C. seeking
transfer of the case to the Court of competent jurisdiction. - It is also contended that the petitioner was not named by the
respondent no. 2 in his statement dated 18.10.2018 recorded in the
CRL.M.C. 6347/2019 Page 12 of 50
earlier complaint case whereas in the statement dated 01.05.2019
recorded in the present case, the respondent no. 2 because of his
mala-fide intention, has deposed an entirely different version and
named the petitioner. Thus, it is argued that respondent no. 2 has
deposed two entirely different versions and purposely named the
petitioner, which on the face of it, shows mala-fide intentions and
oblique motives. Therefore, in view of these submissions, learned
Senior Counsel prays that the present petition be allowed and the
impugned order be set aside or the case be remanded back to the
learned Trial Court for deciding afresh as per law.
ARGUMENTS ON BEHALF OF RESPONDENT NO. 2 - Sh. Raghav Awasthi, learned counsel for respondent no. 2,
who seeks to sustain the impugned orders, argues that the allegations
made against the respondent no. 2 are false, malicious and
defamatory and the same have lowered his reputation in the eyes of
right thinking members of the society. It is contended that without
there being any proof in support of allegations levelled against the
respondent no. 2, the petitioner herein, who is the Chief Minister of
Delhi, has retweeted the video, shared by Sh. Dhruv Rathee on his
YouTube channel, without verifying its authenticity and due to the
large following of the petitioner herein, the video had reached a large
number of people not only in India, but internationally also. On these
grounds, it is argued that the impugned orders suffer from no
infirmity and the learned Trial Court has rightly summoned the
petitioner herein in the present case since a prima facie case of
CRL.M.C. 6347/2019 Page 13 of 50
defamation is made out against the petitioner and the issues which the
petitioner has raised by way of this petition are all triable in nature. - It is further submitted on behalf of respondent no. 2 that the
earlier complaint filed by respondent no. 2 before the Saket Courts,
Delhi was withdrawn qua the present petitioner only since the said
Court was not competent to try any matter in relation to the petitioner
herein, who is an MLA and Chief Minister of Delhi, and therefore,
the respondent no. 2 had no option but to withdraw the complaint
from the previous Court with liberty to file a fresh complaint against
the petitioner in the court which is competent to try cases pertaining
to MPs/MLAs. In this regard, reliance is also placed on decision of
this Court in case of Satish Dayal Mathur v. Mackinnon Mackenzie
and Company MANU/DE/0240/1986 to argue that Section 257 of
Cr.P.C would not be applicable. On these grounds, learned counsel
for respondent no. 2 prays that the present petition be dismissed. - This Court has heard arguments addressed by learned Senior
Counsel for the petitioner as well as learned counsel for respondent
no. 2, and has gone through the material placed on record and written
submissions filed by both the parties.
THE ORDERS IMPUGNED BEFORE THIS COURT - The learned Trial Court, while summoning the petitioner
herein vide order dated 17.07.2019, had passed the following order:
“11. Defamatory statement is one which tends to injure the
reputation of a person. It is a publication which tends to
lower a person’s reputation in the estimation of right
thinking members of the society generally or which make
CRL.M.C. 6347/2019 Page 14 of 50
them shun or avoid that person. ‘According to section 499
of The Indian Penal Code, a person is said to commit the
offence of defamation when he, by words either spoken or
intended to be read, or by signs or by visible
representations, makes or publishes any imputation
concerning any person intending ,to harm, or knowing or
having reason to believe that such imputation will harm,
the reputation of such person except where the publication
is protected by the ten statutory exceptions provided in this
provision itself. - The complaint clearly set out the imputations made
against the complainant by the respondent. The
complainant has relied upon the defamatory video Ex.
CW1/2 and computer printout of the tweet Ex.CW1/3 of
the respondent whereby he re-tweeted the video. These
electronic evidences are supported by the complainant’s
certificate under section 65 B of the Indian Evidence Act
Ex.CW1/5. Complainant ‘has also filed the transcript of the
video on record. - Respondent is not the original author of the alleged
defamatory video. The only allegations against him is that
he re-tweeted the video containing the defamatory
allegations against the complainant, without confirming its
veracity. - In this manner, what the respondent has done, is that he
has repeated the defamatory statements on a social media
platform, which amounts to its further publication. It is no
defence to an action of defamation that the respondent
published it by way of repetition. “Talebearers are as bad
as tale-makers”. Every repetition of defamatory words is a
new publication and a distinct cause of action. - In order to decide whether to summon respondent for
trial, existence of only a prima facie case to summon them
has to be seen in contrast to the standard of proof “beyond
reasonable doubt” required for conviction. In legal terms,
the consideration at this stage is whether there exists
sufficient grounds to summon them or not (section 204 of
The Code of Criminal Procedure). The situation may be
different if the respondent is able to make out a defence for
him from amongst those defences carved out in the
provision itself (section 499 of The Indian Penal Code).
But these defences cannot be looked at this stage according
to the law. The defences have to be pleaded and proved by
CRL.M.C. 6347/2019 Page 15 of 50
the person charged with defamation. At the initial stage,
the Court has to look into the complaint and the
statement/evidence of the complainant and has to believe
him. The Court has to see whether if the impugned material
is prima facie defamatory or not and whether the Court has
sufficient grounds to proceed with the case. The video
referred above are if seen in the entire context of the things
and evidence of the complainant seems to be defamatory if
they do not fall within any of the statutory defences
prescribed by law itself as well as the other legal
requirements. The entire burden will be on respondent to
plead and prove the defence on which he may rely upon. - In defamation cases, one of the test is whether under
the circumstances in which the writing was published
reasonable men to whom the publication was made would’
be likely to understand it in a defamatory sense. Much also
depends on the intention of the maker of the statement
which is a subject of trial. - Therefore, the aforesaid discussions shows that
allegations in the video are prima facie defamatory and
refers to complainant Mr. Vikas Sankrityayan @ Vikas
Pandey making him an aggrieved person within the
meaning of section 199 Cr.P.C. The inquiry as
contemplated under section 202 of the Code of Criminal
Procedure has been duly conducted by examining the
complainant and his witnesses to arrive at the conclusion
for this stage of the case. Therefore, in view of the
aforesaid discussion there exists sufficient grounds to
proceed against the respondent Arvind Kejriwal under
section 500 IPC. Accordingly, Sh. Arvind Kejriwal is
summoned for commission of offence of defamation under
section 500 of the Indian Penal Code.” - Learned Sessions Court, while dismissing the revision petition
filed by the petitioner where the order of summoning was challenged,
had passed the following order dated 30.10.2019:
“21. It is not in dispute that republication of libel is a new
libel which was so held in the case of Harbhajan Singh vs
State of Punjab, 1961 Cri. Law Journal 710. It was further
observed therein that the publisher of the libel is strictly
responsible, irrespective of the fact whether he is the
CRL.M.C. 6347/2019 Page 16 of 50
originator of the libel or is merely repeating it. Tweeter a
micro blogging and social network website, is used for
spreading of messages. The Tweets so made on this platform
are read by public on Internet who visit the platform of the
creator of the Tweet. The platform, like Tweeter, can be
used for sharing ideas and dissemination of thoughts.
Whenever the user of this platform after reading the Tweet
click on the ‘re-tweet’ button of any user, the Tweet reaches
the followers of the ‘re-tweeting’ user. Thus, it reaches the
new viewers for whom it may amount to publication. Re-
tweeting, therefore, would amount to re-publication so far as
the followers of retweeting user are concerned. - The question in the present revision petition is whether
the revisionist had re-tweeted the contents of the video. The
learned counsel for the revisionist has submitted that the
revisionist has not re-tweeted the video. However, the copy
of the re- tweet placed on record shows that the link of video
was also mentioned in the re-tweet. The re-tweet by the
revisionist shows that he has referred to the link i.e.
“youtu.be/BsIKjxaP4Ik” on which the video containing the
defamatory contents can be watched. He has further
mentioned ‘Share and RT’. Thus, it appears that the
revisionist had re-tweeted the entire tweet along with
mentioning the link on which the video can be watched by
his followers on his tweeter account. - Learned counsel for revisionist argued that there was no
intention on the part of the revisionist to cause any
defamation. He referred to the judgment titled as Standard
Chartered Bank vs Vinay Kumar Sood, CrL M. C.
No.3828/2007 decided on 06.02.2009. He argued that the
revisionist does not know complainant therefore, there
cannot be any intention on his part to cause harm to the
reputation of complainant. In the judgment on which learned
counsel has relied, it was observed by the Hon’ble Delhi
High Court that the intention to cause harm is most essential
sine qua non for the offence under Section 499 IPC. It was
held that the offence under Section 500 IPC requires blame
worthy mind and is not a statutory offence requiring no
mensrea. However, it may be noted here that the Hon’ble
Delhi High Court in the Standard Chartered Bank’s case
(supra) was dealing with a car in which a limited company
was arrayed as an accused for the offence under Section 500
IPC. Therefore, the court dealt with the issue of ‘mensrea’
and held that a company cannot in any case be held guilty
CRL.M.C. 6347/2019 Page 17 of 50
under Section 500 IPC because the most essential
ingredients of the offence i.e. ‘mensrea’ would be missing as
a company is juristic entity or an artificial person. - Section 499 IPC defines the offence on defamation as
under:” Defamation.-Whoever, by words either spoken or
intended to be read, or by signs or by visible representations,
makes or publishes any imputation concerning any person
intending to harm, or knowing or having reason to believe
that such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter expected, to
defame that person.” - A bare perusal of the definition of the defamation would
show that the imputation which harm the reputation of the
person against whom they are made must be either (a) with
an intention, or (b) with knowledge or (c) having reasons to
believe that such imputation will harm the reputation of the
‘person concerned’. - Whether in a particular case there was any such
intention, knowledge, reason to believe or not is a question
of fact which can be decided by way of leading evidence.
Section 499 IPC is also subject to certain exceptions which
bring the imputation out of the periphery of defamation.
However, these exceptions would always be question of
facts which can be decided at the trial. What is the nature of
imputation, under what Circumstances it was made, the
status of the person who is making imputation and of the
person against whom the said imputation is made, whether
the imputation were made in good faith etc. are some of the
defences which are available to an accused. However, such
defence can be considered by the trial court after the
evidence is led by both the parties. - The impugned order has dealt with all the relevant
aspects of the issues involved at the stage of summoning. At
this stage, the court has only to see if there are sufficient
grounds to proceed further or not and if the impugned order
is weighed on this scale then I find no illegality, in propriety
or irregularity in the order. - With these observations, the revision petition is
dismissed. - TCR along with the copy of the order be sent to the
learned trial court. - Revision Petition be consigned to record room.”
CRL.M.C. 6347/2019 Page 18 of 50
ANALYSIS & FINDINGS
I. ARGUMENT THAT THE COMPLAINT WAS
WITHDRAWN EARLIER - It was argued on behalf of the petitioner that respondent no. 2
had earlier withdrawn a complaint which he had filed against three
accused persons in Saket Courts, Delhi with the liberty to approach
appropriate Court, and in these circumstances, Section 257 of Cr.P.C.
would come into picture which provides that if a complainant
withdraws his complaint against an accused, the Magistrate may
permit him to do so, thereby acquitting the accused. While opposing
these arguments, it was contended on behalf of respondent no. 2 that
the previous complaint qua the present petitioner, who was accused
no. 3 therein, was withdrawn with liberty to file a fresh in the Court
having competent jurisdiction to deal with cases pertaining to
MPs/MLAs and the same would not amount to an acquittal. In this
regard, learned counsel for respondent no. 2 had relied on the
decision of this Court in case of Satish Dayal Mathur (supra),
wherein it was held as under:
“17. These observations in my view are very apposite in the
facts of the case on hand. Since the learned Additional Chief
Metropolitan Magistrate was of the view, though
erroneously, that the entire proceedings were illegal because
of noncompliance with the mandatory provisions of Section
200, he could not have in all fairness to him passed an order
of acquittal in terms of Section 257 the Code and this is
what he precisely did. So applying the ratio of the decisions
adverted to above which has also been referred to by both
the courts below, the order dated 5th August 1983 of the
CRL.M.C. 6347/2019 Page 19 of 50
learned Additional Chief Metropolitan Magistrate in the
previous complaint cannot operate as an acquittal within the
meaning of Section 257 so as to bar subsequent prosecution
of the petitioner on the same facts.” - This Court notes that in the present case, the respondent no. 2
herein had filed a complaint i.e. Ct. Cases 5786/2018, titled „Vikas
Sankritayan @ Vikas Pandey v. Dhruv Rathee & Ors.‟ on 04.07.2018
for offence under Section 499/500 of IPC against three accused
persons i.e. Sh. Dhruv Rathee (the original author), one Sh. Mahavir
Prasad Khileri and Sh. Arvind Kejriwal i.e. the petitioner herein. On
18.10.2018, the complainant had tendered his pre-summoning
evidence, and on the same date, he had also given a statement before
the learned MM-01, South-East, Saket Court, Delhi that he wishes to
withdraw his complaint against accused no. 3 with liberty to file
afresh before the court of competent jurisdiction. This statement
reads as under:
“On SA
I wish to withdraw my complaint against alleged No. 3 Sh.
Arvind Kejriwal with liberty to file the same before the Court
of competent jurisdiction. I may be permitted for the same.
RO & AC” - Further, on the same day, the following order was passed by
the learned Magistrate:
“Complainant submits that he wishes to withdraw his
complaint qua alleged No. 3 Sh. Arvind Kejriwal with liberty
to file fresh complaint as per law in the court having
competent jurisdiction. Statement of the complainant is
separately recorded to this effect and name of alleged No. 3 is
dropped accordingly.
Complainant is examined as CW1 and discharged.
CRL.M.C. 6347/2019 Page 20 of 50
Complainant seeks time to file the list of remaining witnesses
and for further pre summoning evidence. Heard. Allowed.
Be put up for further pre summoning…” - Thereafter, in the aforesaid complaint case, the learned
Magistrate had issued summons to the other two accused persons
vide order dated 23.07.2019. - It is, thus, noted that in the present case, the respondent no. 2
had withdrawn his earlier complaint i.e. Ct. Cases 5786/2018, only
qua accused no. 3, purely on the grounds of lack of jurisdiction of the
learned Magistrate in Saket Courts to adjudicate a case related to a
sitting MLA, who is also the Chief Minister of Delhi. In this regard,
this Court also takes note of the fact that pursuant to directions
passed by the Hon‟ble Apex Court in case of Ashvini Kumar
Upadhyay vs. Union of India & Anr. W.P. (C) 699/2016, a
notification no. 35/DHC/Gaz./G-1/VI.E.2(a)/2018 dated 23.02.2018
was issued by this Court constituting special Courts to deal with
cases against sitting/former MPs/MLAs. - As regards the argument regarding applicability of Section 257
of Cr.P.C., it is important to note that the case i.e. Ct. Cases
5786/2018, at the time when complaint qua petitioner herein was
withdrawn, was still at the stage of recording of pre-summoning
evidence. The petitioner i.e. accused was not before the Court
concerned, as he had not yet been summoned, and the learned
Magistrate had not applied his mind even to the material before him
to arrive at a finding as to whether the accused persons were required
CRL.M.C. 6347/2019 Page 21 of 50
to be summoned or not. Thus, the trial in that complaint case had not
yet begun, when the complaint was withdrawn. Having also gone
through the decision of this Court in case of Satish Dayal Mathur
(supra), this Court is of the opinion the learned MM-01, South-East,
Saket Court, Delhi did not have the jurisdiction to adjudicate
complaint case pertaining to the present petitioner, in view of Special
Courts constituted by this Court for the purpose of dealing with cases
pertaining to sitting/former MPs/MLAs. In view thereof, the learned
Magistrate himself did not pass any order of acquittal of the accused
no. 3 i.e. petitioner herein. Thus, this Court is of the opinion that such
a case would not be covered within the provisions of Section 257 of
Cr.P.C., which falls under Chapter XX i.e. „Trial of Summons-Cases
By Magistrates‟. Even otherwise, as observed hereinabove, the case
of the complainant qua the present petitioner, being a sitting MLA,
could not have been dealt with by the Magistrate concerned.
II. THE OFFENCE OF DEFAMATION - As the present case revolves around the offence of defamation,
it shall be necessary to first examine and analyse the concept of
defamation and defamatory statements, essential ingredients to
constitute this offence under Section 499 of IPC and the judicial
precedents highlighting the role of courts while issuing summons to
an accused in a complaint filed for offence of defamation.
Meaning and Definition - According to Halsbury’s Laws of England, Fourth Edition,
CRL.M.C. 6347/2019 Page 22 of 50
Volume 28, the term ‘defamatory statement’ has been defined as “a
statement which tends to lower a person in the estimation of right
thinking members of the society generally or to cause him to be
shunned or avoided or to expose him to hatred, contempt or ridicule,
or to convey an imputation on him disparaging or injurious to him in
his office, profession, calling trade or business”. - The Black’s Law Dictionary, 4th Ed., explains the meaning of
„defamation‟ as “the taking from one‟s reputation. The offense of
injuring a person‟s character, fame, or reputation by false and
malicious statements”. - In addition, P.H. Winfield in A Textbook of the Law of Tort,
5th Ed. 1950, defines „defamation‟ as “the publication of a statement
which tends to lower a person in the estimation of right-thinking
members of society generally; or which tends to make them shun or
avoid that person”. - As per R.F.V. Heuston, Salmond on the Law of Torts, 17th Ed.
1977, the wrong of defamation “consists in the publication of a false
and defamatory statement concerning another person without lawful
justification. That person must be in being. Hence not only does an
action of defamation not survive for or against the estate of a
deceased person, but a statement about a deceased or unborn person
is not actionable at the suit of his relatives, however great their pain
and distress, unless the statement is in some way defamatory of
them”.
CRL.M.C. 6347/2019 Page 23 of 50
Provisions of Law - The offence of defamation has been defined under Section 499
of IPC, which reads as under:
“499. Defamation.—Whoever, by words either spoken or
intended to be read, or by signs or by visible
representations, makes or publishes any imputation
concerning any person intending to harm, or knowing or
having reason to believe that such imputation will harm,
the reputation of such person, is said, except in the cases
hereinafter excepted, to defame that person.
Explanation 1.—It may amount to defamation to impute
anything to a deceased person, if the imputation would
harm the reputation of that person if living, and is intended
to be hurtful to the feelings of his family or other near
relatives.
Explanation 2.—It may amount to defamation to make an
imputation concerning a company or an association or
collection of persons as such.
Explanation 3.—An imputation in the form of an
alternative or expressed ironically, may amount to
defamation.
Explanation 4.—No imputation is said to harm a person’s
reputation, unless that imputation directly or indirectly, in
the estimation of others, lowers the moral or intellectual
character of that person, or lowers the character of that
person in respect of his caste or of his calling, or lowers
the credit of that person, or causes it to be believed that the
body of that person is in a loathsome state, or in a state
generally considered as disgraceful.
First Exception.—Imputation of truth which public good
requires to be made or published.—It is not defamation to
impute anything which is true concerning any person, if it
be for the public good that the imputation should be made
or published. Whether or not it is for the public good is a
question of fact.
Second Exception.—Public conduct of public servants.—It
is not defamation to express in good faith any opinion
whatever respecting the conduct of a public servant in the
discharge of his public functions, or respecting his
CRL.M.C. 6347/2019 Page 24 of 50
character, so far as his character appears in that conduct,
and no further.
Third Exception.—Conduct of any person touching any
public question.—It is not defamation to express in good
faith any opinion whatever respecting the conduct of any
person touching any public question, and respecting his
character, so far as his character appears in that conduct,
and no further.
Fourth Exception.—Publication of reports of proceedings
of courts.—It is not defamation to publish substantially
true report of the proceedings of a Court of Justice, or of
the result of any such proceedings.
Explanation.—A Justice of the Peace or other officer
holding an enquiry in open Court preliminary to a trial in a
Court of Justice, is a Court within the meaning of the
above section.
Fifth Exception.—Merits of case decided in Court or
conduct of witnesses and others concerned.—It is not
defamation to express in good faith any opinion whatever
respecting the merits of any case, civil or criminal, which
has been decided by a Court of Justice, or respecting the
conduct of any person as a party, witness or agent, in any
such case, or respecting the character of such person, as far
as his character appears in that conduct, and no further.
Sixth Exception.—Merits of public performance.—It is not
defamation to express in good faith any opinion respecting
the merits of any performance which its author has
submitted to the judgment of the public, or respecting the
character of the author so far as his character appears in
such performance, and no further.
Explanation.—A performance may be submitted to the
judgment of the public expressly or by acts on the part of
the author which imply such submission to the judgment
of the public.
Seventh Exception.—Censure passed in good faith by
person having lawful authority over another.—It is not
defamation in a person having over another any authority,
either conferred by law or arising out of a lawful contract
made with that other, to pass in good faith any censure on
the conduct of that other in matters to which such lawful
authority relates.
CRL.M.C. 6347/2019 Page 25 of 50
Eighth Exception.—Accusation preferred in good faith to
authorised person.—It is not defamation to prefer in good
faith an accusation against any person to any of those who
have lawful authority over that person with respect to the
subject-matter of accusation.
Ninth Exception.—Imputation made in good faith by
person for protection of his or other’s interests.—It is not
defamation to make an imputation on the character of
another provided that the imputation be made in good faith
for the protection of the interests of the person making it,
or of any other person, or for the public good.
Tenth Exception.—Caution intended for good of person to
whom conveyed or for public good.— It is not defamation
to convey a caution, in good faith, to one person against
another, provided that such caution be intended for the
good of the person to whom it is conveyed, or of some
person in whom that person is interested, or for the public
good. - Section 500 of IPC, which provides for punishment for
defamation, reads as under:
“500. Whoever defames another shall be punished with
simple imprisonment for a term which may extend to two
years, or with fine, or with both.”
Essential Ingredients to Co nstitute Offence of Defamation - In case of Jeffrey J. Diermeier v. State of W.B. (2010) 6 SCC
243, the Hon‟ble Apex Court had observed that to constitute
defamation under Section 499 of IPC, the following ingredients must
be fulfilled:
“29. To constitute “defamation” under Section 499 IPC,
there must be an imputation and such imputation must
have been made with the intention of harming or knowing
or having reason to believe that it will harm the reputation
of the person about whom it is made. In essence, the
CRL.M.C. 6347/2019 Page 26 of 50
offence of defamation is the harm caused to the reputation
of a person. It would be sufficient to show that the accused
intended or knew or had reason to believe that the
imputation made by him would harm the reputation of the
complainant, irrespective of whether the complainant
actually suffered directly or indirectly from the imputation
alleged.” - The Hon‟ble Apex Court in case of Subramanian Swamy v.
Union of India (2016) 7 SCC 221, while analysing the
constitutionality of offence of defamation, had also enumerated the
essentials of Section 499 of IPC, which are as under:
“168. For the aforesaid purpose, it is imperative to analyse
in detail what constitutes the offence of “defamation” as
provided under Section 499 IPC. To constitute the offence,
there has to be imputation and it must have been made in
the manner as provided in the provision with the intention
of causing harm or having reason to believe that such
imputation will harm the reputation of the person about
whom it is made. Causing harm to the reputation of a
person is the basis on which the offence is founded and
mens rea is a condition precedent to constitute the said
offence. The complainant has to show that the accused had
intended or known or had reason to believe that the
imputation made by him would harm the reputation of the
complainant. The criminal offence emphasises on the
intention or harm. Section 44 IPC defines “injury”. It
denotes any harm whatever illegally caused to any per-son,
in body, mind, reputation or property. Thus, the word
“injury” encapsulates harm caused to the reputation of any
person. It also takes into account the harm caused to a
person’s body and mind. Section 499 provides for harm
caused to the reputation of a person, that is, the
complainant.” - The Hon‟ble Apex Court in Google India Private Limited v.
Visakha Industries and Ors. (2020) 4 SCC 162 had also examined
the ingredients of Section 499 as well as the meaning of terms
CRL.M.C. 6347/2019 Page 27 of 50
“making of an imputation” and “publishing of an imputation”. The
relevant observations in this regard are reproduced hereunder:
“105. Under the said provision, the Law Giver has made
the making or publishing of any imputation with a
requisite intention or knowledge or reason to believe, as
provided therein, that the imputation will harm the
reputation of any person, the essential ingredients of the
offence of defamation. What is the meaning to be attached
to the words “making of an imputation” and “publishing of
an imputation”? This question has been set out with clarity
in a recent judgment which is reported in Mohd. Abdulla
Khan v. Prakash K. (2018) 1 SCC 615. It was held as
follows: - An analysis of the above reveals that to constitute
an offence of defamation it requires a person to make
some imputation concerning any other person;
(i) Such imputation must be made either
(a) With intention, or
(b) Knowledge, or
(c) Having a reason to believe
that such an imputation will harm the reputation of the
person against whom the imputation is made.
(ii) Imputation could be, by
(a) Words, either spoken or written, or
(b) By making signs, or
(c) Visible representations
(iii) Imputation could be either made or published.
The difference between making of an imputation and
publishing the same is:
If ‘X’ tells ‘Y’ that ‘Y’ is a criminal — ‘X’ makes an
imputation.
If ‘X’ tells ‘Z’ that ‘Y’ is a criminal — ‘X’ publishes the
imputation.
The essence of publication in the context of Section
499 is the communication of defamatory imputation
to persons other than the persons against whom the
CRL.M.C. 6347/2019 Page 28 of 50
imputation is made.”
(Emphasis supplied) - Therefore, the essence of „publication‟ of a content which is
defamatory in nature, for the purpose of applicability of Section 499
of IPC, is the „communication‟ of such defamatory content to persons
other than the person who is being defamed. - To reiterate once again, in today‟s world, when the law with
regard to posting of a defamatory content by way of re-tweeting or
reposting is still not settled and is evolving, the Court has to
adjudicate a case on the basis of test of a reasonable common man
and the social background of the parties concerned alongwith the
relevant facts and circumstances of the case which will become the
edifice of finding for the purpose of evolving jurisprudence in the
field of law, not yet effectively treaded or adjudicated upon.
Issuance of Process/Summons vis-a-vis Offence of Defamation:
Material Considerations - The Hon‟ble Apex Court in the case of Iveco Magirus
Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya and Ors
2023 SCC OnLine SC 1258, after considering several judicial
precedents, had made the following observations on the issue of
summoning an accused for an offence of defamation:
“44. Thus, when a Magistrate taking cognisance of an
offence proceeds Under Section 200 based on a prima
facie satisfaction that a criminal offence is made out, he
is required to satisfy himself by looking into the
allegations levelled in the complaint, the statements
CRL.M.C. 6347/2019 Page 29 of 50
made by the complainant in support of the complaint,
the documentary evidence in support of the allegations,
if any, produced by him as well as statements of any
witness the complainant may choose to produce to
stand by the allegations in the complaint. Although we
are not concerned with Section 202 here, if an inquiry or
an investigation is conducted thereunder, it goes without
saying that the reports should also be looked into by the
Magistrate before issuing process Under Section 204.
However, there can be no gainsaying that at the stage the
Magistrate decides to pass an order summoning the
Accused, examination of the nature referred to above
ought not to be intended for forming an opinion as to
whether the materials are sufficient for a ‘conviction’;
instead, he is required to form an opinion whether the
materials are sufficient for ‘proceeding’ as the title of the
relevant chapter would indicate. Since the Accused does
not enter the arena at that stage, question of the Accused
raising a defence to thwart issuance of process does not
arise. Nonetheless, the fact that the Accused is not before
the Magistrate does not mean that the Magistrate need not
apply his judicial mind. Nothing in the applicable law
prevents the Magistrate from applying his judicial mind to
other provisions of law and to ascertain whether, prima
facie, an “offence”, as defined in Section 2(n) of the Code
of Criminal Procedure is made out. Without such opinion
being formed, question of “proceeding” as in Section 204
does not arise. What the law imposes on the Magistrate as
a requirement is that he is bound to consider only such of
the materials that are brought before him in terms of
Sections 200 and 202 as well as any applicable provision
of a statute, and what is imposed as a restriction by law on
him is that he is precluded from considering any material
not brought on the record in a manner permitted by the
legal process. As a logical corollary to the above
proposition, what follows is that the Magistrate while
deciding whether to issue process is entitled to form a
view looking into the materials before him. If, however,
such materials themselves disclose a complete defence
under any of the Exceptions, nothing prevents the
Magistrate upon application of judicial mind to accord the
benefit of such Exception to prevent a frivolous complaint
from triggering an unnecessary trial. Since initiation of
prosecution is a serious matter, we are minded to say that
it would be the duty of the Magistrate to prevent false and
CRL.M.C. 6347/2019 Page 30 of 50
frivolous complaints eating up precious judicial time. If
the complaint warrants dismissal, the Magistrate is
statutorily mandated to record his brief reasons. On the
contrary, if from such materials a prima facie
satisfaction is reached upon application of judicial
mind of an “offence” having been committed and there
being sufficient ground for proceeding, the Magistrate
is under no other fetter from issuing process. Upon a
prima facie case being made out and even though much
can be said on both sides, the Magistrate would have no
option but to commit an Accused for trial, as held in
Chandra Deo Singh (supra) …… - In the context of a complaint of defamation, at the
stage the Magistrate proceeds to issue process, he has
to form his opinion based on the allegations in the
complaint and other material (obtained through the
process referred to in Section 200/Section 202) as to
whether ‘sufficient ground for proceeding’ exists as
distinguished from ‘sufficient ground for conviction’,
which has to be left for determination at the trial and
not at the stage when process is issued. Although there is
nothing in the law which in express terms mandates the
Magistrate to consider whether any of the Exceptions to
Section 499, Indian Penal Code is attracted, there is no bar
either. After all, what is ‘excepted’ cannot amount to
defamation on the very terms of the provision. We do
realize that more often than not, it would be difficult to
form an opinion that an Exception is attracted at that
juncture because neither a complaint for defamation
(which is not a regular phenomenon in the criminal
courts) is likely to be drafted with contents, nor are
statements likely to be made on oath and evidence
adduced, giving an escape route to the Accused at the
threshold. However, we hasten to reiterate that it is not
the law that the Magistrate is in any manner precluded
from considering if at all any of the Exceptions is attracted
in a given case; the Magistrate is under no fetter from so
considering, more so because being someone who is
legally trained, it is expected that while issuing process he
would have a clear idea of what constitutes defamation. If,
in the unlikely event, the contents of the complaint and the
supporting statements on oath as well as reports of
investigation/inquiry reveal a complete defence under any
of the Exceptions to Section 499, Indian Penal Code, the
CRL.M.C. 6347/2019 Page 31 of 50
Magistrate, upon due application of judicial mind, would
be justified to dismiss the complaint on such ground and it
would not amount to an act in excess of jurisdiction if such
dismissal has the support of reasons.”
III. BALANCING CRITICAL YET COMPETING
INTERESTS: FREEDOM OF SPEECH & EXPRESSION Vs.
PROTECTING A PERSON FROM REPUTATIONAL INJURY - Reputation is a form of honor and honor has many aspects.
The recognition of reputation as a significant social asset is
fundamental, and the Courts play an important role in ensuring
equal protection to every individual, regardless of their standing
in society. - By analysing the limited sphere of jurisprudence evolved till
date regarding „retweet‟ or „repost‟ being covered under meaning of
„publication‟, this Court would note that the law on defamation on
the one hand protects one person’s reputation who is the
complainant and one person’s fundamental right who has been
alleged to be an accused to freedom of expression. Freedom of
expression and the use of cyberspace and social media for the said
purpose, especially by persons who hold positions of authority and
have huge following on their social media accounts, needs to be kept
in mind while balancing the contrasting approaches to be adopted
towards both the parties, when they come to a Court to determine
their rights. - In addressing a democratic community, it is crucial to
CRL.M.C. 6347/2019 Page 32 of 50
emphasize that freedom of speech, while a fundamental right,
does not grant individuals the license to inflict harm or tarnish
the reputation of others. This distinction becomes particularly
pertinent when grappling with the court’s dilemma of striking a
balance between the cherished value of free expression and the
equally essential need to protect an individual’s reputation. - Thus, a Court, while weighing the value of reputation of one
party and freedom of expression of the other, has to keep in mind that
in a democratic setup, a person who is complainant in such cases may
be vulnerable in a given set of circumstances in face of his
competing interest with that of the accused. The principle of equal
protection under the law mandates that the courts consider the plight
of every individual, regardless of their societal status. In rendering
equal protection, the court must balance the right of free speech
with the need to prevent unjust harm to reputation. The
injurious falsehood of a statement will definitely invite
defamation and loss of reputation. - Whether a person has achieved great heights in society, or
finds himself marginalised considering himself as the last and
least in terms of access to Court of law to fight for safeguarding
his reputation, their right to fair treatment and protection from
unwarranted harm remains paramount before any Court of law
while adjudicating. This approach and duty becomes more
critical when the complainant may be pitted against a person
who may have more power, influence and followers.
CRL.M.C. 6347/2019 Page 33 of 50
IV. MEETING THE CHALLENGE OF ADJUDICATING
GREY AREA OF LAW NOT YET EFFECTIVELY
ADJUDICATED UPON: LAYING FOUNDATION STONE OF
JURISPRUDENCE - The evolution of technology and all pervasive influence of
social media have transformed the landscape through which
reputational harm can occur. As communication has shifted from
traditional forms of speech to the digital space, the law must adapt to
effectively addressing the new weapons of harm to reputation,
particularly in the context of posts and reposts on social media
platforms. Unlike private conversations, digital content posted and
reposted on social media has the potential for immediate and
widespread dissemination. The virality and permanence of online
content amplifies its impact, making it a tool for causing reputational
harm. - The use of cyberspace, as in the present case – the social media
platform of Twitter (now ‘X’), has seen rapid development. The users
of cyberspace, for the purpose of posting their content even by way
of re-tweeting, should remain conscious of a keen sense of danger in
this new technological method of spreading information and ideas.
The content shared at such platforms spreads rapidly, and any
content involving the reputation of a person will attract
considerable harm in case he is negatively portrayed on the basis
of a content which is scandalous or indictable. - Twitter (now ‘X’), as a platform, serves as a megaphone
that amplifies messages and broadcasts them to an extensive
CRL.M.C. 6347/2019 Page 34 of 50
audience. It provides the ability to communicate with millions of
people at the stroke of a button. The immediacy and accessibility
of social media means that defamatory statements disseminated
through tweets can rapidly reach individuals worldwide. The
audience includes not only followers of the public figure but also
anyone who has access to the social media platform and who may
come across or be exposed to the tweet. Words which are posted,
which may be these days in the form of a video also, will amount to
publication and will be actionable in case it contains defamatory
content or malice. Needless to say, the extensive circulation of such
content in public can cause considerable injury to a person‟s
reputation. Such written and posted content has the inherent quality
of being permanent by virtue of the fact that a man‟s reputation
suffers while the video remains available on the public platform and
in the cyber space. - The number of followers or the reach of an individual’s online
presence can significantly magnify the impact of a post or repost. As
a result, the law needs to evolve to navigate the complexities of this
digital era. The concept of publication, traditionally associated
with printed materials, must be re-examined in the context of
virtual platforms where information can reach a vast audience in
seconds. Moreover, the legal system should be attuned to the
dynamics of social media influence.
CRL.M.C. 6347/2019 Page 35 of 50
Pace of Spread of Scandalous Content: From the Echo of
Whispers in Pre-Digital Era compared to the Spread at Lightning
Speed of Digital Dissemination in Digital Era - While deciding such cases, the Courts have to realize that in
this advanced age of technology, the content of defamation which is
scandalous in nature, spreads like a wildfire, leading to instant
injury to reputation of a person by sheer extent of its reach to millions
within minutes and is not like whispered scandal of the previous past. - In other words, when a public figure tweets a defamatory
post, the ramifications extend far beyond a mere whisper in
someone’s ears. In social media, where information travels at
lightning speed and has the potential to reach a global audience, the
act of tweeting transforms the communication into a form of public
publication. The audience, in this context, is not restricted to those
physically present or within immediate earshot but encompasses the
vast and diverse online community. In the digital age, the
boundaries of ‘publication’ have expanded, and the implications
of defamation are heightened due to the potential of widespread
dissemination. - The force of causing injury to reputation in virtual realms
can be particularly potent, with the impact transcending physical
boundaries and reaching a global audience. The virtual space
provides a platform where individuals, especially those with
significant influence, can disseminate information rapidly, leading to
swift and widespread consequences for a person’s reputation.
CRL.M.C. 6347/2019 Page 36 of 50 - The force of a virtual blow is often exemplified by the sheer
number of followers an individual commands on digital
platforms. The larger the following, the greater the potential reach
and influence of their virtual actions. In the virtual realm, a damaging
statement or action can reverberate across social media, online
forums, and other digital spaces, magnifying its impact on the
targeted individual’s reputation. - Unlike physical injury, which may be localized and limited
in scope, virtual injury can have far-reaching and long-lasting
effects. The force of a virtual blow is intricately tied to the
dynamics of online engagement, where the virality and
permanence of digital content contribute to the enduring nature
of reputational harm. - Recognizing and addressing virtual injury requires an
understanding of the power dynamics inherent in the digital
landscape. Legal frameworks and societal norms must adapt to
consider the implications of reputational harm inflicted through
virtual modes, acknowledging the influence exerted by individuals
with substantial online followings.
V. ‘RETWEETING’ A DEFAMATORY IMPUTATION
WILL AMOUNT TO ‘PUBLICATION’ FOR THE PURPOSE
OF APPLICABILITY OF SECTION 499 OF IPC - When a person makes a smart move to dodge law, the
Courts and the laws have to be smarter to catch that smartness.
Courts play a pivotal role in this process, acting as the vanguards of
CRL.M.C. 6347/2019 Page 37 of 50
justice. They must not only interpret the law but also possess the
foresight to anticipate evolving strategies aimed at circumventing
legal consequences. - It has to be noted that a person retweeting a defamatory
content, which has the potential of causing reputational injury to a
person, cannot wriggle out of his responsibility by merely contending
that it was a retweet and not the original tweet. Accepting this view
as canvassed by the petitioner would amount to permitting people to
retweet any objectionable or defamatory content in cyberspace and
social media platforms, without any responsibility being attached to
their act of posting such content on social media even if the content
has the potential to cause reputational injury to another. - The retweeting of the content in the present case which was
originally created by some other person who did not have as much
public following as the present petitioner, by virtue of the petitioner
retweeting that content, represented to the public at large that he
believed the content created by another person to be true. It has to be
held so since the general public would ordinarily believe that the
person retweeting such content on his own Twitter account, must
have understood, verified and believed the content to be true. The
critical issue to be taken note of in such circumstances is the fact that
the petitioner who retweeted the content had much larger following
than the original content creator, thus, having multiplied potential of
spreading the defamatory content to a much larger audience. - The freedom of expression is essential in a democratic setup
to spread one’s opinion, however, it cannot extend to the extent of
CRL.M.C. 6347/2019 Page 38 of 50
affecting the right of the people not to be defamed. - In case, the act of retweeting or reposting is allowed to be
misused since it is still considered to be a vacant grey area of law
where the sapling of jurisprudence as to whether retweeting
defamatory content will be considered publication or not is yet to
take place, it will encourage people with ill intentions to misuse
this vacant field of law and therefore, despite retweeting the
defamatory content, the accused can thereafter conveniently take
a plea that he had merely retweeted a content. - In this background, this Court holds that retweeting or
reposting defamatory content, without any disclaimer as to whether
the person so retweeting agrees or disagrees or has verified the
content so posted or not, and as to whether he projected to the world
at large, who care to follow him, that he believes the content to be
true so shared, a person would be republishing the original
defamatory content which has the potential of lowering the moral or
intellectual character or credit of a person. - A sense of responsibility has to be attached while retweeting
content about which one does not have knowledge. Since in case
reputational injury is caused by defaming a person, the person doing
so by retweeting must attract penal, civil or tort action against him in
absence of any disclaimer. - If we assume that the law exclusively attributes harm to the
original author of a post in cases of defamation, a potential loophole
emerges. Any case has to be adjudicated in its accompanying
circumstances and the background of not only the facts but the actors
CRL.M.C. 6347/2019 Page 39 of 50
of the act in question. When a vast majority follows a particular
person on twitter, not all, may be aware of the nitty gritties of tweets
or retweets. Most common persons who follow a person, who may be
an influencer for a particular segment of community will find it
enough reason to believe a content just because the content is posted
on account of a particular person. - This Court, while trying to lay down foundational stone on
jurisprudence of retweeting, and whether it amounts to publication
or not for the purpose of Section 499 of IPC, presents the following
scenario to explain the reasons weighing in this Court‟s mind as to
why this Court holds that retweeting amounts to publication for the
purpose of Section 499 of IPC:
Consider an individual, Z, who commands a specific group of
followers, who regularly engage with his tweets. Z could
potentially evade legal repercussions by instructing one of his
followers to post defamatory content or by creating a fake
account for the same purpose. Subsequently, the content is re-
posted on Z‟s account, garnering a substantial audience. In
such a scenario, the crux of the concern lies in the fact that if
the law only holds the original author accountable, it creates an
avenue for individuals like Z to escape the clutches of law.
Despite being the one actively disseminating the defamatory
material on his account, Z might escape punishment if the
focus is solely on the initial creator of the content. If the law
fails to address situations where the true culprit is the one
CRL.M.C. 6347/2019 Page 40 of 50
amplifying and re-posting defamatory content, it undermines
the very purpose of defamation laws that is to protect
individuals from false and damaging statements. - Therefore, this Court is of the view that rigours of Section 499
of IPC will be attracted prima facie in case a person will
retweet/repost the alleged defamatory remarks or content, for the
purpose of the general public to see, appreciate and believe. - This can also be explained by way of following illustrations,
which weigh in the mind of this Court and have been purely created
by this Court for the purpose of explanation, which are not
exhaustive but suggestive in nature:
Illustrations By This Court
(a) B posts defamatory content about Z on his social media
account. A, reposts the defamatory content, disseminating
it to a larger audience. The act of both A and B is
defamation, unless it falls within one of the exceptions or
A posts a disclaimer in the repost that the content has not
been verified regarding its correctness/ genuineness.
(b) B, a well-known influencer, shares a false accusation
against Z on her blog. A, a follower, reblogs the content,
amplifying its reach. A’s and B’s act constitutes defamation,
unless it falls within one of the exceptions, or A posts a
disclaimer in the retweet that the content has not been
verified regarding its correctness/ genuineness.
(c) B tweets derogatory statements about Z, a public figure.
A, another user, retweets B’s content, making it visible to a
broader audience. A’s and B’s action is defamation, unless
CRL.M.C. 6347/2019 Page 41 of 50
it falls within one of the exceptions or A posts a disclaimer
in the retweet that the content has not been verified
regarding its correctness/ genuineness.
(d) B publishes a misleading article about Z on an online
forum. A, a forum member, reposts the article,
contributing to its wider circulation. A’s and B’s action is
defamation, unless it falls within one of the exceptions or
A posts a disclaimer in the repost that the content has not
been verified regarding its correctness/ genuineness.
(e) B uploads an edited video falsely portraying Z engaging
in inappropriate behavior. A, a subscriber, shares the same
video on a video-sharing platform, expanding its
viewership. A’s and B’s action is defamation, unless it falls
within one of the exceptions or A posts a disclaimer while
sharing the video that the content has not been verified
regarding its correctness/ genuineness.
VI. REACH & INFLUENCE OF THE PERSON
RETWEETING DEFAMATORY CONTENT - The assertion that the petitioner simply retweeted defamatory
content without any intention to harm the reputation of the
respondent no. 2 raises a complex legal issue, especially considering
the political standing and maturity of the petitioner, who also
holds the position of Chief Minister of the State of Delhi. - The background of the petitioner, being a Chief Minister,
necessitates an acknowledgment of the inherent sense of
responsibility that comes with such a significant political role. As
CRL.M.C. 6347/2019 Page 42 of 50
a leader with political standing and maturity, the petitioner is
presumed to be aware of the potential impact of his actions,
including retweets, on the public perception. When a public
figure, particularly one with a political standing, tweets or
retweets a defamatory post, the stakes and repercussions escalate
given the broader implications on society. The audience,
therefore, becomes the citizenry at large, whose opinions and
decisions may be influenced by the information they consume,
including defamatory statements published on social media. - In other words, the argument of mere retweeting without
harmful intent has to be weighed against a public figure‟s duty to
exercise due diligence and care in disseminating information on
social media platforms. - Where millions of people follow a particular person such as
the petitioner herein on social media platforms such as Twitter
(now ‘X’), anything which is posted by the petitioner on his
account is for public notice i.e. notice for all the people who care
to follow him.
VII. WILL EVERY ‘RETWEET’ ATT RACT ACTION
UNDER SECTION 499 OF IPC? - Let us consider a scenario where an original author „Z‟ posts
defamatory content against „Y‟ on his Twitter (now ‘X’) account. The
same is retweeted by thousands of users on their profiles. However,
interestingly, one such retweet is from a public figure or influencer
CRL.M.C. 6347/2019 Page 43 of 50
with over 10 million followers, whereas the rest of retweets are from
those who do not command such levels of popularity. Now, would
every such person who retweets the defamatory content, be liable to
face action for defamation? - In this Court‟s opinion, while all acts of „retweeting‟ may
amount to „publication‟ of defamatory imputation, the extent of harm
caused to the reputation of the aggrieved person would depend on the
level of influence and the potential reach of the individual who
retweets such defamatory imputation. - To illustrate, the reputational harm caused by virtue of
retweeting defamatory content, by a person with a mere 10 followers,
in contrast to another individual with a substantial following of over
10 million, would be undoubtedly different. The gravity of the
situation would also differ substantially in such cases especially in
view of explanation 4 of Section 499 of IPC which clearly provides
that for an imputation to be defamatory in nature so as to harm‟s one
reputation, it must inter alia directly or indirectly, in the estimation of
others, lowers the moral or intellectual character or credit of the
person who is being defamed. - Therefore, the social media reach as well as the social and
political standing of the person, retweeting the defamatory
imputation, is of great relevance. If a public figure with a millions
of followers retweets any defamatory content, the impact on the
aggrieved person‟s reputation and his character will be much greater,
since the larger audience and the influence wielded by a public figure
would amplify the spread and longevity of the defamatory content.
CRL.M.C. 6347/2019 Page 44 of 50
Such a person’s influence may also make his audience believe the
defamatory content to be true, thereby lowering the reputation of the
aggrieved person. - Conversely, if a defamatory imputation is retweeted by an
individual with negligible followers or very limited influence, the
impact on the complainant’s reputation may be less severe or may not
even be of a nature to fall within the ambit of offence of defamation,
since the limited or negligible reach of such a person would reduce
the potential for the defamatory content to gain any significance
among the right thinking members of the society, this of course,
would be a matter of trial as to whether a person‟s retweet of
defamatory content, with following of ten persons or zero persons
would be sufficient to attract action under Section 499 of IPC. - If one analyses the facts of the present case in light of aforesaid
observations, it is to be noted that in this case also, the respondent no.
2 had examined two witnesses at the pre-summoning stage who had
deposed that they followed the present petitioner on Twitter, and they
had seen the YouTube video which the petitioner had retweeted on
his Twitter account, and after hearing the allegations contained in that
video against the respondent no. 2 herein, they had immediately
called respondent no. 2 to express their dismay. - Certainly, the harm inflicted upon the reputation of respondent
no. 2, as claimed, by the actions of the petitioner herein, who not only
commands a substantial social media following but also holds the
position of the Chief Minister of Delhi, would be exponentially more
than that resulting from thousands of retweets by other social media
CRL.M.C. 6347/2019 Page 45 of 50
users. Thus, the petitioner herein cannot take a defence that the
complainant had chosen only to prosecute him for retweeting the
alleged defamatory imputation, even though several other thousands
of social media users had retweeted the same original tweet
containing hyperlink/URL of defamatory video. - Therefore, though every ‘retweet’ of defamatory imputation
would ordinarily amount to ‘publication’ under Section 499 of
IPC, it is ultimately for the person so aggrieved to decide as to
which retweet caused more harm to his reputation, and inter alia
lowered his moral or intellectual character or his credibility
among the members of society. This also will be decided by the
learned Trial Court on the basis of material before it as to whether the
retweet with its accompanying circumstances had the potential to
defame the complainant concerned.
VIII. WHETHER PETITIONER IS LIABLE TO BE
SUMMONED FOR HIS ACT OF RETWEETING THE
ALLEGE DLY DEFAMATORY CONTENT? - In the present case, the petitioner had retweeted the original
tweet of Sh. Dhruv Rathee, and the said retweet contained the
embedded hyperlink/URL to the allegedly defamatory video which
had been uploaded on the YouTube channel owned and run by Sh.
Dhruv Rathee. - While the petitioner may plead absence of any malicious
intent in the act of retweeting, the Court has to consider the
CRL.M.C. 6347/2019 Page 46 of 50
responsibility that accompanies the petitioner’s political and
social standing. Needless to say, the large social media following
of a Chief Minister of a State undoubtedly implies a wider reach,
making any retweet, a form of public endorsement or
acknowledgment. - When a political person of such standing or a public figure or a
social influencer, posts some content on his social media account, it
can be reasonably believed by the Court while adjudicating such
cases, at the initial stage of a case where summoning is in question,
that he did understand the repercussions and implications of posting
such content and the corresponding harm it can cause to the person
aggrieved. In this Court‟s opinion, the online interactions and
engagement on Twitter, which involves publication of defamatory
statements and content, and sharing such content with others by
retweeting will surely attract liability since it would amount to
posting defamatory content as one‟s own by believing it to be true
and thus, sharing it with the public at large. - The original author of the alleged defamatory content will also
be liable for any action if a complaint is filed against him. However,
it is the choice of the complainant, who may decide as to whether the
person who retweeted such content had caused him more damage or
not, since he had more friends or followers, by sharing a content. - In the present case, the defamatory video in question, posted
by Sh. Dhruv Rathee and retweeted by the petitioner herein, was
aimed at „exposing‟ the IT Cell of BJP and as alleged in the video,
the respondent no. 2 was the „second-in-command‟ of the IT Cell of
CRL.M.C. 6347/2019 Page 47 of 50
BJP and was offering bribes for the purpose of defaming Sh. Dhruv
Rathee. Taking note of the same, the argument that the petitioner was
not aware that the contents of the material retweeted by him would
cause harm to the reputation of the respondent no. 2 cannot be
appreciated at the stage of summoning itself, since the adjudication
with regard to determination of whether the petitioner herein had
acted responsibly or not, and whether as a political person of a long
standing, he could have had the knowledge that the content being
posted by him would cause defamation or reputational injury to the
respondent, is a matter of trial. - Further if, the petitioner herein wants to justify his act by any
of the defences or exceptions, it can be done only at an appropriate
stage of trial and not when he has just received summons and where
prima facie, the case does not fall under any of the exceptions of
Section 499 of IPC. Also, the question regarding an intentional injury
or unintentional injury to a complainant‟s reputation by an accused
can only be decided during the course of trial by leading evidence by
both the parties. To prove actual defamatory injury by impairment of
reputation cannot be decided at the threshold of summoning, when
only a prima facie view of the matter is to be taken by the learned
Magistrate. - The original author of the defamatory content i.e. Sh. Dhruv
Rathee alongwith another accused i.e. Sh. Mahavir Prashad are
already accused in Ct. Cases 5786/2018, which is pending trial before
the learned MM-01, South-East, Saket Court, Delhi. - Further, whether it was his duty or not, as a political person of
CRL.M.C. 6347/2019 Page 48 of 50
long standing, to have taken some steps to verify the story or
allegations against the respondent before posting it on social media,
which would make an impact on a huge section of society and
corresponding effect on the reputation of the person concerned who
is at the centre stage of the defamatory content, will also be
considered during the course of trial. - Whether the impugned publication and the alleged
defamatory content will help the petitioner as a political person
or not, is not in this Court’s domain to go into, at this stage.
Thus, regardless of whether posting such content or filing a
defamation case serves the interests of the petitioner or the
respondent in gaining political mileage, this Court must
adjudicate a criminal matter solely based on the legal provisions
outlined in the relevant sections of criminal law and in
accordance with established judicial precedents. The decision
should be made without any consideration of personal agendas or
the potential impact or implications on the political landscape at
the threshold of journey of a case i.e. summoning on the basis of
adequate material on record. - The present case is still at the stage of the accused having been
summoned. He has challenged the issuance of summons and the
summoning order and has raised the issues of illegality in issuance of
summons which have been adjudicated upon by this Court in the
preceding paragraphs. The issues have been decided against the
petitioner herein. Resultantly, this Court finds no reason to interfere
with the order of summoning passed by the learned Trial Court. The
CRL.M.C. 6347/2019 Page 49 of 50
petitioner herein will have opportunity to raise contentions before the
learned Trial Court during the course of trial which will be decided as
per law, including the issue as to whether for the purpose of trial case
under Section 499 of IPC is made out or not. At this stage, there was
sufficient material before the Court concerned to summon the
petitioner under Section 499 of IPC. - It is for the Trial Court Judge to determine at a pre-summoning
stage what is capable of being defamatory for the purpose of
summoning. Whether the content has been proved to be defamatory
or not is a matter of trial.
CONCLUSION - At times, it is difficult to erase the reputational injury from
public memory, as the tweets may be deleted but perceptions are
difficult to be deleted from the minds of the community. - This Court, thus, for the purpose of adjudicating the present
case, holds that retweeting a content, which is allegedly defamatory,
on the Twitter account and projecting it to be as if his own views,
will prima facie attract the liability under Section 499 of IPC, for the
purpose of issuance of summons. - Therefore, this Court finds no infirmity with the impugned
orders passed by the learned Trial Court as well as learned Sessions
Court. - Accordingly, the present petition stands dismissed.
- It is, however, clarified that the observations made hereinabove
qua the present complaint case are solely for the purpose of deciding
CRL.M.C. 6347/2019 Page 50 of 50
the instant petition challenging the summoning orders, and the same
shall not be construed as opinion of this Court on the merits of the
case, which will be adjudicated upon during the course of trial. - The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J
FEBRUARY 5, 2024/ns