Rouse Avenue District Court: In the case of defamation filed in the year 2013 by Sh. Surender Kumar Sharma, Advocate, Shahdara Bar Association (Complainant) against three persons i.e., Sh. Arvind Kejriwal, presently the Chief Minister of Delhi and convener/founder of Aam Aadmi Party (Accused 1), Sh. Manish Sisodia, presently Deputy Chief Minister of Delhi and the then Member of Political Affairs Committee of Aam Aadmi Party (Accused 2) and Sh. Yogender Yadav, the then Member of Political Affairs Committee of Aam Aadmi Party (Accused 3), Vidhi Gupta Anand, J. acquitted the accused person, despite examination of plethora of witnesses and bringing several documents on record, Complainant failed to prove his case beyond all reasonable doubts as required in law.
It has been alleged in the instant case that in June 2013, accused 1 was impressed by the social services provided by the Complainant and granted him ticket of MLA from Shahdara Constituency which has been published in several esteemed newspapers of the country. The grievances of the Complainant with respect to his alleged defamation came to the fore on 14-10-2013 when he read some newspaper articles in the leading Hindi and English newspapers pertaining to his replacement as the candidate of seat of MLA from Shahdara Constituency on the ticket of Aam Aadmi Party having headlines AAP replaces candidate with ‘criminal’ record. Allegedly, similar derogatory and defamatory language has also been used and got published by the Accused persons in other daily leading Newspapers i.e., Hindustan Times (Hindi) and Rastriya Shahara on 14-10-2013.
The complainant alleges that the aforesaid derogatory and defamatory words have lowered his image and reputation at the Bar as well as in the eyes of the general public and society at large and caused mental trauma to the Complainant and his family members and also affected his business of Advocacy as well as that of his nephew Yogesh Kumar Gaur. The complainant has stated that most of their litigants stopped coming to them because of their defamation. Thus, Complainant had prayed for taking lawful action against the Accused persons for offences U/s 120-B/420/499/500/34 Penal Code(‘IPC’).
Law of Defamation in India
The offence of defamation is defined u/s 499 of the IPC and punishable under Section 500 IPC. Placing reliance on Subramanian Swamy v. Union of India, (2016) 7 SCC 221, the Court noted that it is manifest that mens rea i.e., intention of defame is indispensable to establish the offence of defamation. There must be an intention on the part of the Accused to cause harm to the reputation of the complainant. The ingredients of the offence are as follows:
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Imputation made by the Accused: In the case at hand, it has been denied by the Accused persons that they gave any press-release on the basis of which the alleged defamatory news articles were published. Hence, it becomes a question of determination of this court as to whether the alleged defamatory news articles were published at the behest of the Accused persons or not.
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Statement/Imputation must be published: In the case at hand, the entire basis of the alleged defamation is several news-articles published in leading newspapers on 14-10-2013. Hence, as regards publication of the statement/imputation, there remains no scope of doubt as undoubtedly, newspaper is a document in public domain which can be accessed by any person and rather the entire purpose of publication is such that the information reaches as many people as possible.
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Intention to cause harm to the reputation of the Complainant: The Court noted that the parameter to judge as to whether a particular statement or imputation has harmed the reputation of a person or not, as encoded in Explanation — 4 to Section 499 IPC, is whether the imputation, directly or indirectly, in the estimation of others, lowers the character or credit of that person or causes it to be believed that the person is in a loathsome or disgraceful state. Thus, in order to prove that the injury was caused to his reputation, it is essential for the Complainant to prove that in the eyes of a third person, his character and credentials were questioned.
Appreciation of Evidence
Issue 1: Whether the alleged defamatory news articles were published at behest of accused persons or not?
The source of publication of alleged defamation is an e-mail sent by one Aswathi Muralidharan on 13-10-2013, which has been testified by different witnesses. According to her testimony, she denied being the Media Manager of the Aam Aadmi Party meaning thereby, that Aswathi Muralidharan has cut-off the chain linking the Accused persons to the alleged defamatory news articles. The ideal flow of information would have been from the Political Affairs Committee of the Aam Aadmi Party to Aswathi Muralidharan and from her to the Media Channels.
Thus, the source of the news articles which was determined after going through testimonies of several witnesses i.e., the e-mail from Aswathi Muralidharan, could not lend much support to the Complainant’s case so as to attribute the actus reus to the Accused persons.
Admissibility of Electronic Records
Placing reliance on Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, the Court noted that any document on a computer device, unless produced in original, is admissible in the form of secondary evidence only when supported by a mandatory certificate as required u/s 65B (4) of Evidence Act.
The Court noted in light of the instant case that no certificate at all has been produced by any witness from other news publications i.e., Times of India and Rashtriya Sahara, with respect to the e-mails received by them. No primary evidence has been produced during the trial with respect to the receipt of the e-mail by Aswathi Muralidharan, hence, in view of the law elucidated above, filing of a certificate u/s 65B (4) of the Evidence Act was mandatory in this case. Thus, the admissibility of the e-mails relied upon by the Times of India and Rashtriya Sahara becomes questionable.
Thus, the Court observed that as is manifest from the essentials quoted above, merely stating that the electronic record is generated from the computer and printer maintained in the office in regular course of business shall not suffice and specifications of the devices used to generate the copy of the electronic record has also to be mentioned in the certificate u/s 65B (4) of the Indian Evidence Act. Hence, the source of news articles in question are inadmissible in evidence.
The Court remarked despite scrutiny of the entire evidence on record, it could not be established that the news publication was made by the Accused persons. The most essential ingredient of the offence i.e., Actus Reus could not be established on the part of the Accused persons. Thus, this Court shall not get into the question as to whether the alleged news articles were defamatory or not and straight away move to the decision.
The Court opined that in order to constitute any offence two essential ingredients are — actus reus i.e., act or omission on the part of the Accused to constitute physical element of crime and mens rea i.e., guilty intention on the part of the accused. Particularly in regard to the offence of defamation, the primary ingredient, that is actus reus, is making of a statement or imputation by words or signs or visible representations by the Accused and all other ingredients, viz. publication and intention to defame, come thereafter. The case of the complainant becomes weak on the very first aspect itself. When the Complainant has been unable to prove that it was the Accused persons who gave the alleged defamatory press release/statements, no question arises as to whether those statements were defamatory or not. In other words, where the foundation of the complaint case itself fails, the superstructure built on the same is bound to fail.
The Court thus held that the complainant has failed to attach culpability to the accused persons despite several efforts. In these circumstances, all the accused persons namely Arvind Kejriwal, Manish Sisodia and Yogender Yadav are held not guilty and acquitted for the charge leveled against them under section 500 IPC.
[Surender Kumar Sharma v. Arvind Kejriwal, 2022 SCC OnLine Dis Crt (Del) 32, decided on 20-08-2022]
*Arunima Bose, Editorial Assistant has put this report together.
