Bharatiya Janata Party vs Rizwan Arshad on 22 February, 2024

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Karnataka High Court

Bharatiya Janata Party vs Rizwan Arshad on 22 February, 2024

Author: Krishna S Dixit

Bench: Krishna S Dixit

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                                                         NC: 2024:KHC:7525
                                                   CRL.P No. 11213 of 2022




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 22ND DAY OF FEBRUARY, 2024
                                                                             R

                                          BEFORE

                       THE HON'BLE MR JUSTICE KRISHNA S DIXIT

                     CRIMINAL PETITION NO. 11213 OF 2022 (482)

                   BETWEEN:

                   BHARATIYA JANATA PARTY
                   KARNATAKA STATE UNIT
                   NO.48, JAGGANATH BHAVAN,
                   TEMPEL STREET, MALLESHWARAM,
                   BENGALURU-560 055.
                   REPRESENTED BY ITS PRESIDENT
                   NALIN KUMAR KATEEL.
                                                             ...PETITIONER
                   (BY SRI. DILLI RAJAN., ADVOCATE FOR
                       SRI. K N SUBBA REDDY.,ADVOCATE)
                   AND:

                   RIZWAN ARSHAD,
                   S/O R Q ARSHAD,
Digitally signed   AGED ABOUT 39 YEARS,
by SHARADA         R/AT NO.24, SRIDEVARU APARTMENTS,
VANI B
                   FLAT NO.G2, BENSON A CROSS,
Location: HIGH
COURT OF           BENSON TOWN, BENGALURU-560 046.
KARNATAKA                                                   ...RESPONDENT
                   (BY SRI.S A AHMED.,ADVOCATE)
                        THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO ALLOW
                   THIS PETITION AND QUASH COMPLAINT AND ENTIRE
                   PROCEEDINGS REGISTERED AND PENDING ON THE FILE OF
                   THE LEARNED 42nd A.C.M.M., BENGALURU (SPECIAL COURT
                   FOR TRIAL OF CASES AGAINST SITTING AS WELL AS FORMER
                   MPs/MLAs, TRIABLE BY MAGISTRATE IN THE STATE OF
                   KARNATAKA) OF C.C.NO.28124/2022 BY THE RESPONDENT
                   FOR ALLEGED OFFENCE P/U/S 499,500 OF IPC.
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                                           NC: 2024:KHC:7525
                                    CRL.P No. 11213 of 2022



    THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
                          ORDER

Petitioner is a registered & recognized national political

party. It is invoking the inherent jurisdiction of this court

u/s.482 of the Code of Criminal Procedure, 1973 seeking

quashment of Criminal Proceedings in C.C.No.28124/2022

for the offence of defamation punishable u/s.500 of Indian

Penal Code, 1860. The said proceedings are pending on

the file of learned 42nd ACMM Court, Bangalore (ie.,

Special Court for the trial of cases of MPs/MLAs). The

petitioner along with another happen to be accused

therein.

    II.    FOUNDATIONAL FACTS OF THE CASE:

   (1)     The respondent herein had filed a private

complaint in PCR No.41/2019 dated 22.05.2019 alleging

that the accused had tweeted certain matter that are

grossly defamatory of him. The said tweets are as under:

“a) “Congress Exposed – Youth Cong Nation
Secretary Ibrahim Khaleelulla has been
arrested after being caught printing fake voters
ID cards. Bengaluru central candidate
@ArshadRizwan is behind this racket”

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CRL.P No. 11213 of 2022

b) “Youth Congress National Secretary
Ibrahim Khaleelulla was operating from prabhat
complex, 3rd floor room no.507. They were
caught red handed by BJP corporate and
karyakarthas. It’s speculated @INC India is
printing fake voter cards in other parts of the
country too.”

c) “Congress party should be disqualified
from contesting elections. They have
challenged the very existence of democratic
values in the country. Will @RahulGandhi
come out in open and explain the neus
between his party and the anti constitutional
activities of his party members.”

d) “Election Commission should ban
@ArshadRizwan from contesting elections until
the investigation is completed. The congress
today stays exposed before the country. They
have waged war on the democracy of this
nation @RahulGandhi, do you any shame left?
Speak out!!”

(2) Learned Judge of the court below on perusal of

the complaint took cognizance of the offence by the

impugned order dated 02.11.2019 and further, having

recorded the Sworn Statement of the complainant on

16.12.2019 & 09.01.2020, directed vide order dated

04.01.2020 registration of the ‘criminal case against

accused No.1 & 2 for the offence punishable u/s.499 r/w
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CRL.P No. 11213 of 2022

Sec.500 of Indian Penal Code’ (sic). He also directed issue

of summons to them. Accused has been admitted to bail

vide order dated 10.03.2020 and the cash security of

Rs.25,000/- was obtained as a condition for the

enlargement on bail. Petitioner seeks quashment of the

said proceedings.

III. SUBMISSION ON BEHALF OF PETITIONERS:

The petitioner-political party is not a ‘person’, the
same being only a ‘society’ or ‘association of persons’;
such entities do not fit into the word ‘whoever’ employed
in both the sections 499 & 500 of IPC and therefore, the
proceedings of the kind are not maintainable. Secondly, a
bare perusal of the complaint does not reflect the
commission of any offence much less the one in question;
Even otherwise, the complaint does not generate
confidence in the mind of court; allowing the said
proceedings to continue amounts to abuse of process of
the court. That being the position, the same is liable to be
quashed in terms of law declared by the Apex Court in
STATE OF HARYANA vs. BHAJAN LAL, AIR 1992 SC

604.

IV. SUBMISSION ON BEHALF OF RESPONDENT:
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CRL.P No. 11213 of 2022

The word ‘person’ employed in sections 499 & 500 is

inclusively defined u/s 11 of IPC; even otherwise, section

3(42) of the General Clauses Act, 1897 expansively

defines this word. The contents of the complaint taken at

their face value reflect commission of the offence of

defamation and therefore, learned Judge of the court

below has rightly taken cognizance of the same. At that

stage, it is not in the province of the court to have a mini-

trial; all contentions are open to the petitioner in the

pending proceedings in the court below. There is

absolutely no case of abuse of process of court. So

contending, he seeks dismissal of the petition.

V. Having heard the learned counsel for the parties

and having perused the Petition Papers, this court declines

interference in the matter for the following reasons:

(a) The right to reputation, like the right to personal

security is very important to any person. The publication of

defamatory words is so manifestly detrimental that a

person publishes them at the peril of being able to justify
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CRL.P No. 11213 of 2022

them in the sense in which the general public will

understand them. Whenever words sound to the

disreputation of an individual, they are said to be

defamatory on their face. Injury to the reputation happens

to be the gist of action.

(b) Winfield & Jolowicz on TORT, 13th Edition, Sweet

& Maxwell, at page 294 say:

‘Defamation is the publication of a statement
which reflects on a person’s reputation and
tends to lower him in the estimation of right-
thinking members of society generally or tends
to make them shun or avoid him.’

Reputation can be defined as ‘the respect or esteem which

a person enjoys in society’; in other words, it is what

people think of him or the good esteem in which others

hold him. Right not to be defamed. It is said in Latin that

a good name is better than great riches. Shakespeare, in

‘Othello’ says:

“Good name in man and woman, dear my lord,
Is the immediate jewel of their souls;
Who steals my purse, steals trash; ’tis
something, nothing;

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‘T was mine, ’tis his, and has been slave to
thousands;

But he that filches from me my good name,
Robs me of that which not enriches him,
And makes me poor indeed.”

All civilized jurisdictions recognize reputation as an

essential attribute of personality and therefore, it is

jealously protected. Breach of this right is a tort or a

crime or both.

(c) Section 499 of IPC defines the offence of

defamation which reads as under:

“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.”

The offence of defamation consists of three essential

ingredients, namely, (i) making or publishing any

imputation concerning any person, (ii) such imputation

must have been made by words either spoken or by visible

representations, and (iii) such imputation must be made

with the intention to cause harm or with the knowledge or
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CRL.P No. 11213 of 2022

having reasons to believe that it will harm reputation of

the person concerned. Section 500 of IPC which prescribes

punishment for the offence of defamation, reads as under:

“Whoever defames another shall be punished
with simple imprisonment for a term which may
extend to two years, or with fine, or with both.”

Insulting words are a form of uncivilised violence and

intimidation. They are inconsistent with civilized standards

of a community living. The subject provisions in a way

intend to promote civilized standards and improve the

quality of communication or expression.

(d) Ours is a constitutionally ordained democratic

republic. Periodic elections to the legislative bodies and

local bodies are a basic feature of our polity. Political

parties and their candidates have a great role to play in

deciding destiny of the nation. Generally, the freedom of

political debate is at the very core of the concept of a

democratic society. The U.S. Supreme Court in NEW

YORK TIMES vs. SULLIVAN, 376 U.S.254 (1964)

observed that a democratic polity should have “a profound

national commitment to the principle that debate on public
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CRL.P No. 11213 of 2022

issues should be uninhibited, robust and wide-open”. This

may be a bit broader proposition. However, truth remains

that unlike private individuals, politicians and political

parties consciously expose themselves to the close

scrutiny by the public at large and therefore, they have to

display a greater degree of tolerance. That being said,

their image & reputation have a bearing on the electoral

process and its product, cannot be disputed. Disreputing

them or damaging their public image would not augur well

to the system. A vibrant democracy like ours warrants a

reasonable protection of reputation of political parties and

elected representatives of the people. Therefore, the tort

or offence of defamation cannot be viewed leniently

merely because punishment prescribed for the offence is

not stringent. Excluding political parties from the purview

of Sections 499 & 500 would deleteriously mask this

perspective.

(e) A bare perusal of the subject tweets which are

reproduced herein above, by no stretch of imagination can

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CRL.P No. 11213 of 2022

be said to be innocent/innocuous. The allegations are wild

such as fabricating the fake voters ID cards and that the

complainant is behind this racket. ‘They were caught red

handed by BJP corporate and karyakarthas. It’s speculated

@INCIndia is printing fake voter cards in other parts of the

country too.’ The complainant claims to be the Vice

President/President of Karnataka Pradesh Youth Congress

Committee, National Secretary of Indian Youth Congress;

he was elected to the Karnataka Legislative Council and

thus, an MLC. That being the position, the subject tweets

taken at their face value are defamatory of him. There is

no scope for the invocation of any of the propositions in

BHAJAN LAL supra. It hardly needs to be stated that at the

stage of taking cognizance, learned Judge has done the

exercise in a normative way, and rightly he did not hold

the mini-trial. The prayer for quashment of impugned

proceedings structured on a contra premise therefore is

liable to be rejected.

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CRL.P No. 11213 of 2022

(f) Petitioner’s counsel contended that his client is

only a registered society or an unincorporated association

of individuals and therefore, it cannot be treated as a

‘person’ within the meaning of sections 499 & 500 of IPC.

He argues that the expression ‘whoever’ employed in

these provisions implies ‘person’ and any entity having no

legal personality cannot fit into the precincts of these

provisions. Learned counsel appearing for the respondent

contradicts this submission. He is right in telling that

section 11 of IPC defines ‘person’ in an inclusive way with

the following text:

“The word “person” includes any Company or
Association or body of persons, whether
incorporated or not.”

This definition is in pari materia with section 3(42) of the

1897 Act. In N.D.P. NAMBOODRIPAD vs. UNION OF

INDIA (2007) 4 SCC 502, at para 19, it is observed as

under:

“…Justice G. P. Singh in his treatise ‘Principles
of Statutory Interpretation’, (Tenth Edition,
2006), has noticed that where a word defined
is declared to ‘include’ such and such, the
definition is prima facie extensive, but the word

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‘include’ when used while defining a word or
expression, may also be construed as
equivalent to ‘mean and include’ in which
event, it will afford an exhaustive explanation
of the meaning which for the purposes of the
Act must invariably be attached to the word or
expression…”

(g) An unincorporated body of individuals also

answers the definition of ‘person’ in terms of Section 11 of

IPC. There is no difference between a corporate entity

which obviously is a legal person and an unincorporated

body of individuals, which fits into statutory inclusive

definition of ‘person’. Traditionally speaking, an

unincorporated body of individuals may not have the

attributes of a ‘legal person’ is true. However, Solmond’s

Jurisprudence, 12th Edition at paragraph 66, page 305

says:

” A legal person is any subject matter
other than a human being to which the law
attributes personality. This extension for good
and sufficient reasons, of the conception of
personality beyond the class of human beings is
one of the most noteworthy feats of the legal
imagination…”

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Thus, it is open to law to create fictions as of practical

necessity and that is how personality is attributed to

otherwise non-organic entities like companies,

governments, deities, trade unions, etc.,. A contra

contention cannot be countenanced without manhandling

Section 11 of IPC.

(h) When an entity, whether incorporated or not, is

inclusively defined by a statute as a ‘person’, it can

maintain a proceeding for the offence of defamation; in

other words, the idea of reputation is not ‘natural person’

specific. Even legal persons like governments, companies,

deities, trade unions, can also have reputation. As a

corollary of this, there can be a proceeding of the kind

against such persons, as well. (Law can prescribe

modalities for taking up such proceedings, is beside the

point). An argument to the contrary does not stand to the

rules of reason & justice. Therefore, I am of the

considered opinion that the word ‘whoever’ inter alia

employed in sections 499 & 500 of IPC implicitly includes

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CRL.P No. 11213 of 2022

an association of individuals, whether incorporated or not,

like the petitioner herein and such entities can be arrayed

as accused in criminal proceedings of the kind.

(i) The vehement submission of learned counsel for

the petitioner that his client is only an association of

individuals, although it is registered as a Society and

further, it is registered & recognized by the Election

Commission of India, may be true. However, his further

submission that intention cannot be attributed to it, is

difficult to countenance in view of the inclusive definition

of ‘person’ and there being a natural person as a co-

accused in the impugned proceedings. The Apex Court in

SUNIL BHARTI MITTAL vs. CENTRAL BUREAU OF

INVESTIGATION, (2015) 4 SCC 609 has observed at

para 43 as under:

“Thus, an individual who has perpetrated the
commission of an offence on behalf of a
company can be made accused, along with the
company, if there is sufficient evidence of his
active role coupled with criminal intent…”

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Added, the contention of the petitioner that the idea of

vicarious culpability should remain alien to criminal

jurisprudence cannot come to his aid, there being a co-

accused, who is alleged to have acted on behalf of the

petitioner. In STANDARD CHARTERED BANK vs.

DIRECTORATE OF ENFORCEMENT (2005) 4 SCC 530, it

has been held that there is no immunity to the corporate

entities from prosecution merely because it is in respect of

offences for which the punishment is mandatory

imprisonment and fine.

(j) The above view is supported by Solmond’s

Jurisprudence in paragraph 69, page 314 which reads as

under:

“It is well settled in the law of England that a
corporation may be held liable for wrongful
acts, and that this liability extends even to
those cases in which malice, fraud, or other
wrongful motive or intent is a necessary
element. A company may be sued for libel,
malicious prosecution, or deceit (h). Nor is this
responsibility civil only. Corporations, no less
than men, are within reach of the arm of the
criminal law. They may be indieted or
otherwise prosecuted for a breach of their

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statutory or common law duties, and punished
by way of fine and forfeiture (i).”

It is relevant to mention that the prescribed punishment

for the offence of defamation is imprisonment or fine or

both. In fact, the 41st Report of the Law Commission had

suggested the following amendment to section 62 of IPC:

“In every case in which the offence is only
punishable with imprisonment or with
imprisonment and fine and the offender is a
company or other body corporate or an
association of individuals, it shall be competent
to the court to sentence such offender to fine
only.”

However, the above view has secured imprimatur in

STANDARD CHARTERED BANK supra and therefore, need

to amend the statute has arguably withered away.

In the above circumstances, this petition being

devoid of merits, is liable to be & accordingly, dismissed,

costs having been made easy.

It is clarified that the observations herein above

made being confined to disposal of the petition, shall not

prejudice any contention of the parties, that may be taken

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up in the proceedings pending in the court below and

further that all contentions are kept open.

This Court places on record its deep appreciation for

the able research & assistance rendered by its official Law

Clerk cum Research Assistant, Mr.Raghunandan K S.

Sd/-

JUDGE
Snb/cbc
List No.: 1 Sl No.: 5

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