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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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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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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 2022Sec.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 2022The 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 2022them 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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CRL.P No. 11213 of 2022‘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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CRL.P No. 11213 of 2022
‘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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CRL.P No. 11213 of 2022
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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CRL.P No. 11213 of 2022
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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CRL.P No. 11213 of 2022statutory 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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CRL.P No. 11213 of 2022
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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