Swati Chaturvedi ….Petitioners

Bar & Bench (www.barandbench.com)

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL. MISC. (MAIN) OF 2018

IN THE MATTER OF: -

SWATI CHATURVEDI ….PETITIONERS

VERSUS

TAJINDER PAL SINGH BAGGA …RESPONDENTS

PETITION UNDER SECTION 482 OF CRIMINAL PROCEDURE CODE, 1973 SEEKING QUASHING OF CRIMINAL COMPLAINT CASE NO. 44490 OF 2017 FILED UNDER SECTION 200 OF CR.P.C. FOR INITIATING THE PROCEEDINGS UNDER SECTION 499, 500 AND 501 OF IPC AS WELL AS SUMMONING ORDER DATED 17.05.2018 ISSUED BY LD. METROPOLITAN MAGISTRATE-6, PATIALA HOUSE COURTS, NEW DELHI IN THE AFOREMENTIONED COMPLAINT CASE TITLE AS TAJINDER PAL SINGH BAGGA VS. SWATI CHATURVEDI

The Petitioners above-named most respectfully submit as under: -

1. That the present petition is being filed under section 482 of

Criminal Procedure Code, 1973 seeking quashing of the

complaint (being Complaint Case No. 44490 of 2017) filed by

the Respondent herein under Section 200 of Cr.P.C. for

initiating the proceedings under Section 499, 500 and 501 of

IPC against the Petitioner herein. This petition also seeks

quashing of the summoning order dated 17.05.2018 passed by

the Ld. Metropolitan Magistrate-6, Patiala House Courts, New

Delhi in Complaint Case No. 44490 of 2017 titled as “Tajinder

Pal Singh Bagga vs. Swati Chaturvedi”.

The petitioner

2. The petitioner is a journalist of high repute, standing and

eminence. She has worked with various newspapers and

channels like The Statesman, The Indian Express, Hindustan Bar & Bench (www.barandbench.com)

Times, The Tribune, NDTV.com, TheWire.in etc. She is the

author of several books. Her investigative stories have

exposed the wrong acts of various governments and political

parties over the last 20 years. She has not faced any

defamation or other charges throughout her career as an

investigative journalist.

3. Petitioner‟s investigative book „I am a troll: Inside the secret

world of the BJP‟s digital army‟ reveals the systemic abuse

and attack by BJP affiliated persons on the Internet. The

respondent has been named as an example in the book as a

BJP‟s Internet warrior who graduated from online abuse to

actual violence. Her book has been widely acclaimed and

praised internationally and nationally. She has also been

writing investigative stories and editorial comments exposing

the wrongdoings of the current government and the party in

power.

4. Petitioner is the accused in the complaint dated 18.03.2017

filed by the respondent herein under Section 200 CrPC

alleging that he has been defamed by the petitioner. Petitioner

has been summoned by the Ld. Metropolitan Magistrate on

the basis of the said complaint vide order dated 17.05.2018.

The respondent

5. The respondent is an accused in the brutal attack on lawyer

Mr. Prashant Bhushan, for which he had himself claimed

responsibility. He had been arrested and charge-sheeted by

the Delhi Police, and is currently out on bail.

6. The respondent in 2010 had attacked the car of one Kashmiri

leader in Delhi, in 2011 he had disrupted Ms. Arundhati Bar & Bench (www.barandbench.com)

Roy‟s book launch in Delhi and in 2012 he had heckled a

Kashmiri Hurriyat leader in Delhi. Respondent has been

extremely active on micro-blogging website Twitter and other

social media targeting critics of the BJP. Respondent has

been appointed BJP spokesperson for Delhi unit.

7. The respondent had been accused of sexual harassment by

Dr. Jwala Gurunath in a police complaint. She alleged that

the respondent had made an indecent proposal by calling her

25 times to stay over her place. A FIR was registered by the

Karnataka police. However, no offence relating to sexual

harassment was invoked by the police in the FIR with the

result that Ld. Single Judge of the Karnataka High Court

quashed the FIR.

Brief Facts

8. The respondent along with two others on 12.10.2011 had

trespassed and assaulted advocate Prashant Bhushan in

his Supreme Court chamber. After the attack, Bhushan

was taken to Ram Manohar Lohia hospital where doctors

said that he had received minor injuries on his head and

leg. Hours before the assault the respondent had tweeted.

"God give us power to complete our mission." After the

assault, the respondent claimed credit for the assault

exulting, “He try to break my nation, I try to break his head.

Hisab chukta. Congrats to all. Operation Prashant Bhushan

successful." In another tweet he posted: "We hit Prashant

Bhushan hard in his chamber in Supreme Court. If you will

try to break my nation, I will break your heads.” A copy of

the tweet by the respondent on assault of Mr.Prashant Bar & Bench (www.barandbench.com)

Bhushan dated 12.10.2011 is annexed and marked as

Annexure P-1 (pages _____).

9. An FIR (182/2011) was registered at Tilak Marg Police

Station on the same date, i.e. 12.10.2011 and one of the

accused Inder Verma was arrested. On the next date, the

respondent was arrested by the Delhi Police along with

another accused Vishnu Gupta for the assault of Mr.

Prashant Bhushan. A chargesheet was later filed by the

Delhi Police against the three accused including the

respondent under Sections 452, 323, 120(B) and 34 of the

IPC for the brutal assault on Mr. Prashant Bhushan. A

copy of chargesheet filed in FIR No. 182/2011 dated 2011

is annexed and marked as Annexure P-2 (pages _____).

10. That this incident was tweeted and retweeted on several

accounts by various people. Even all the media houses in

the country covered this episode. However, the respondent

has chosen not to take any defamation action against any

one of these people. Where as in the criminal defamation

complaint against the petitioner with the motive to harass

her, respondent pleads that no one would comment on his

case till the trial is completed and he is convicted. A copy

of news reports and tweets dated 2011 is annexed and

marked as Annexure P-3 (Colly) (pages _____).

11. Between 02.01.2016 and 08.06.2017, Dr Jwala Gurunath

on twitter (@DrJwalaG) repeatedly accused the respondent

of sexual harassment for calling her 33 times in a night for

wanting to stay overnight. She has addressed these tweets

to prominent persons including the Prime minster, Home Bar & Bench (www.barandbench.com)

ministry, Delhi Police, Bangalore police and to the public

at large. Similar comments made on twitter by other

persons. A copy of tweets accusing respondent for sexual

harassment by Dr Jwala Gurunath dated nil is annexed

and marked as Annexure P- 4 (Colly) (pages _____).

12. A police complaint was lodged by Dr. Jawala Gurunath on

01.01.2016 with the Karnataka Police against the

respondent for sexual harassment and insult to her caste

identity. In her letter to the police, Dr Gurunath has

accused the respondent of making an indecent proposal by

calling her nearly 25 times. On 08.01.2016, an FIR

3/2016 was registered by the Karnataka Police at Kalburgi,

Karnataka on the complaint of Dr. Jwala Gurunath against

the respondent. The case was subsequently transferred to

Bangaluru. Crime No. 32/2016 was registered by

Bangaluru Police under Section 3 of SC&ST Prevention of

Atrocities Act, 1989, and Section 66A of the Information

Technology Act 2000. Though the complainant had alleged

harassment by the respondent, the FIR did not mention

the sections in IPC relating to sexual harassment.

13. It is pertinent to mention here that Dr. Jwala Gurunath

even wrote to the petitioner via email informing about the

sexual harassment incident. So, it is safe to say that

petitioner only tweeted what is already in the public

domain. A copy of the complaint made by Dr. Jwala

Gurunath dated 01.01.2016 and the email written by Dr.

Jwala Gurunath to the petitioner dated xx is annexed and

marked as Annexure P-5 (pages _____). Bar & Bench (www.barandbench.com)

14. Respondent even tried to defend himself in one the print

interview. Hence for the respondent to state in the present

complaint that he has never been accused of sexual

harassment case is in toto false and fabricated. A copy of

the interview of respondent dated nil is annexed and

marked as Annexure P-6 (pages _____).

15. Ld. Single Judge of the Karnataka High Court in a petition

filed by the respondent herein under Section 482 CrPC,

vide judgment dated 14.07.2016, quashed proceedings in

Crime No. 32/16 of Kumaraswamy Layout police station,

Bengaluru on the ground that the complainant (Dr. Jawala

Gurunath) had not disclosed in her complaint that the

respondent was not a member of SC/ST and that he had

intentionally insulted her with an intent to humiliate in

public view. The learned single judge also observed that

the Hon‟ble Supreme Court had already struck down

Section 66A of the IT Act and therefore, the said offence

was not attracted. A copy of the said judgment dated

14.07.2016 of the Karnataka High Court is annexed as and

marked as Annexure P-7 (pages _____).

16. On 14.03.2017, the respondent was appointed by the BJP

as their spokesperson for the Delhi State unit of the party.

A copy of the announcement made by Delhi BJP on

14.03.2017 is annexed and marked as Annexure P-8

(pages _____).

17. On 15.03.2017, the petitioner through her Twitter handle

i.e. @bainjal was commenting on the code of conduct of the Bar & Bench (www.barandbench.com)

ruling party in appointment of a spokesperson of low

credentials as that of the respondent while tweeting that

“Now the man who beat up @pbhushan1 was arrested in a

sexual harassment case speaks for @BJP4India. Good job”

dated 15.03.2017. Petitioner had only remarked on the

code of conduct of the ruling party herein BJP in

appointment of a person as their spokesman who had

criminally assaulted an advocate and who had been

involved in a sexual harassment case. The tweet was

targeted at the BJP and not respondent per se. The tweet

was also based on nothing but truth and in good faith as

this petition shows. The tweet was a step towards

accountability of the functioning of the ruling party BJP

and to alert the public about its code of conduct. The tweet

was thus in public interest. A copy of the said tweet of the

petitioner dated 15.03.2017 is annexed and marked as

Annexure P-9 (pages _____).

18. That the respondent lodged a complaint with the

Commissioner of Police, New Delhi against the petitioner

for defamation under section 499, 500 and 501 of the IPC

for tweeting through her twitter handle. The relevant

paragraph is reproduced herein below:

“I wish to inform you that the contents of aforesaid tweet are out rightly false, frivolous and concoted as primarily I am not involved in beating up of advocate Prashant Bhushan, and moreover the said case being sub judice can not be attributed to me. Secondly, I was never ever arrested or accused of any case pertaining to sexual harassment or similar offence. The said tweet is intentional attempt to defame me and cause harm Bar & Bench (www.barandbench.com)

to my name and reputation, on personal or on behest of someone else.” A copy of the complaint lodged with the Commissioner of

Police, New Delhi against the petitioner dated 16.03.2017

is annexed and marked as Annexure P-10 (pages _____).

19. Since this matter came in public domain, numerous

publically influential persons have commented on it,

including on the character of the respondent. The

respondent also chose not to file any complaint against

them. The respondent specifically targeted the petitioner,

using her tweet as an excuse, in order to harass her using

the legal process by filing a mala fide complaint. This has

been clearly done to further his political career within the

BJP since he knows that his party has been adversely

commented upon by the petitioner in her numerous

articles. Thus it can be inferred that only the petitioner

has been specifically targeted to silence her voice. It is also

to be noted that the petitioner has never been accused of

defamation in her career spanning over 20 years. A copy of

news reports and tweets dated nil is annexed and marked

as Annexure P- 11 (Colly) (pages _____).

20. The respondent on 18.03.2017 filed a criminal complaint

no. 44490/2017 before the Additional Chief Metropolitan

Magistrate, Patiala House Courts, New Delhi under Section

22 of the CrPC against the petitioner for having allegedly

committed offences under section 499, 500 and 501 of the

IPC. In the said complaint the respondent stated that the

case of assault of Mr. Prashant Bhushan is sub-judice and Bar & Bench (www.barandbench.com)

also falsely stated that he had never been accused of

sexual harassment, and therefore the tweet of the

petitioner herein is defamatory. A copy of the said criminal

complaint no. 44490/2017 before the Additional Chief

Metropolitan Magistrate, Patiala House Courts, New Delhi

filed by the respondent dated 18.03.2017 is annexed and

marked as Annexure P-12 (pages _____).

21. Ld. Metropolitan Magistrate, Patiala House Courts, vide

order dated 17.05.2018, was pleased to summon the

petitioner for offences punishable under Section 499, 500

and 501 IPC to appear before her on 12.07.2018. The

relevant paragraph is reproduced herein below:

“… The Complainant is aggrieved that y the aforesaid false frivolous and concocted tweet, the accused has injured the reputation of the complainant who himself at the time had a following more than two lacs users. It is averred that the allegations are not well founded as the incident pertaining to Sh. Prashant Bhushan is sub judice and the complainant was never accused of sexual harassment.” A copy of the order dated 17.05.2018 passed by Ld.

Metropolitan Magistrate is annexed and marked as

Annexure P-13(pages _____).

22. That the Petitioner has written an investigative book titled

„I am a troll: Inside the secret world of the BJP‟s digital

army‟ which uncovers the systemic abuse and attack made

by the BJP affiliated persons on the social networking

websites. The Petitioner has illustrated respondent in the

book as a BJP‟s Internet warrior who graduated from

online abuse to actual violence. Her book has been widely Bar & Bench (www.barandbench.com)

acclaimed and praised internationally and nationally. A

copy of article on the Book titled „I am a troll: Inside the

secret world of the BJP‟s digital army‟ dated 22.12.2016 is

annexed and marked as Annexure P-14(pages _____).

The tweet

23. Twitter is a micro-blogging website in which millions of

people post their views/comments, share

news/information etc. Twitter is part of social media with

multiple interactions daily. At the time of the petitioner‟s

tweet for which the respondent has filed the complaint, the

maximum length of a tweet permitted was 140 characters

or less, a length which is hardly enough to form one full

sentence.

24. The petitioner has a popular twitter handle namely

„@bainjal‟ and has been commenting on daily happenings

for several years now. She currently has about 1,12,000

followers and has tweeted about 58000 times over several

years. This pattern is consistent with all popular twitter

handles belonging to journalists.

25. The petitioner, through one of her tweets posted on

15.03.2017, had commented on the code of conduct and

the state of the ruling party that they appoint a person as

their spokesman who has criminally assaulted a senior

lawyer and who has been involved in a sexual harassment

case. The tweet was targeted at the BJP and not the

respondent per se. The tweet was also based on nothing

but truth and in good faith as this petition shows. The

tweet was a step towards accountability of the functioning Bar & Bench (www.barandbench.com)

of the ruling party BJP and to alert the public about its

conduct. The tweet was thus in public interest.

26. The tweet had two parts: a) referring to Mr. Prashant

Bhushan‟s case and b) referring to involvement in a sexual

harassment case. As far as the first part is concerned, i.e.

assault on Mr. Bhushan, the same is reported extensively

by a large section of the media, both on the date of assault

as well as afterwards. The respondent had himself claimed

credit for the same using his twitter handle. The

respondent was arrested and charge-sheeted by the Delhi

Police. The respondent is out on bail and the trial is still

going on. For the respondent to expect that no one would

comment on his case till the trial is completed and he is

convicted, would mean that public would have to wait for

another 7-10 years before they can accuse the respondent

of the crime.

27. As far as the second part of the petitioner‟s tweet is

concerned, the same was a reference to the accusation of

sexual harassment made by Dr. Jwala Gurunath in

January 2016. Dr. Gurunath has been tweeting and

repeatedly accusing the respondent of sexual harassment

and commenting extensively about it on twitter. An FIR

was also lodged against the respondent for sexual

harassment by Dr. Jwala Gurunath. Her accusations have

been reported in media and have been commented on

Twitter by various prominent persons, but the respondent

has chosen not file any complaint against them. He has Bar & Bench (www.barandbench.com)

also not filed any defamation complaint against Dr

Gurunath.

28. The fact of the matter is that the respondent has been

repeatedly accused of sexual harassment, an FIR has been

lodged against him and by his own public admission, he

has been investigated and also summoned by the police.

For the respondent to falsely state on oath that he has

never been accused of sexual harassment shows the extent

to which the respondent can go in order to harass the

petitioner. The respondent might not have been arrested in

the sexual harassment matter (even though he had been

arrested in Prashant Bhushan assault case) and he might

also have got the FIR quashed on technical grounds, but

still the respondent cannot claim that the petitioner‟s tweet

was an outright lie for which she should be prosecuted for

defamation.

Mala fide complaint

29. The respondent being the spokesperson of the BJP has

targeted the petitioner by filing the mala fide complaint

since the petitioner who is an investigative journalist has

been consistently exposing the wrong doings of the

government and the ruling party in her book and her

writings. She has been vocally critical of the BJP and its

government. The fact that a man of the reputation of the

respondent was appointed its spokesperson, speaks

volumes about the party. The respondent and his party

clearly have an axe to grind against the petitioner. Bar & Bench (www.barandbench.com)

30. Thus, there is a clear reason why the respondent has

chosen to target specifically the petitioner and not file any

complaint or case against numerous others who have

commented on his appointment as spokesperson of the

BJP. The fact that the respondent is the person who

attacked Mr. Prashant Bhushan is confirmed by various

news reports, the charge-sheet filed by Delhi Police and

respondent‟s own candid admissions. Respondent has not

filed any defamation complaint against any person for

naming him as the person who assaulted Mr. Bhushan.

31. The respondent has not filed any defamation complaint

Dr. Jwala Gurunath, a member of BJP for publically

naming the respondent as the person who harassed her by

calling her 25 times and asking her to allow him to spend

the night with her. Dr. Gurunath not only lodged an FIR

against the respondent, but also publically tweeted about

it numerous times and also wrote about it to several

prominent persons including the petitioner herein. Since

this matter came in public domain, numerous publically

influential persons have commented on it, including on the

character of the respondent. The respondent chose not to

file any complaint against them.

32. The respondent specifically targeted the petitioner, using

her tweet as an excuse, in order to harass her using the

legal process by filing a mala fide complaint. This has been

clearly done to further his political career within the BJP

since he knows that his party has been adversely Bar & Bench (www.barandbench.com)

commented upon by the petitioner in her numerous

articles.

33. The Hon‟ble Supreme Court in the case of State of

Haryana vs. Bhajan Lal (1992) Supp 1 SCC 335 dealt

extensively with the power of the High Courts under Article

482 CrPC specifically with reference to petitions seeking

quashing of criminal complaints. The Hon‟ble Supreme

Court specifically stated that the High Courts have the

power to quash complaint which is mala fide and laid

down:

“In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list for myriad kinds of cases wherein such power should be exercised:

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2)of the Code;

(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; Bar & Bench (www.barandbench.com)

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

Law of defamation

34. There is no right to reputation against truth. Truth

triumphs any claim for damaged reputation. Truth and

public interest are clear statutorily recognized defenses to

defamation under the IPC.

35. The respondent is a public personality and BJP is the

dominant national political party. The information shared

in the article relates to public conduct of a public person

and a public entity. When the petitioner came to know

about the appointment of the respondent as BJP‟s

spokesperson, she made a legitimate comment on public

conduct of a political party and their spokesperson.

Petitioner‟s tweet was manifestly and ex-facie based on Bar & Bench (www.barandbench.com)

truth and made in public interest. Thus, the complaint of

the respondent is clearly bad in law and is only filed to

harass the petitioner.

36. Clear exceptions are provided in Section 499 IPC which

protects petitioner. The relevant part is reproduced herein

below:

“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 a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his 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. … 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.”

Thus, ex-facie the offence of defamation is not made out

since the petitioner‟s tweet is clearly covered by above clear Bar & Bench (www.barandbench.com)

exceptions in built in the very definition of defamation as

provided in Section 499 IPC.

37. The Hon‟ble Supreme Court in R. Rajagopal vs. State of

Tamil Nadu, (1994) 6 SCC 632 had endorsed Justice

Brennan‟s caution that:

“A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount—leads to … “self-censorship”. Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. … Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which „steer far wider of the unlawful zone‟…. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with „actual malice‟ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

If a libel action is forbidden, even more so should criminal

action be forbidden lest it stifle democratic discourse.

Criminal Courts should therefore adjudge defamation

complaints in the spirit of Supreme Court‟s philosophical

mandate.

38. A three judge bench of the Hon‟ble Supreme Court had

quashed a criminal defamation complaint vide its Bar & Bench (www.barandbench.com)

judgment in S. Khushboo v. Kaniammal & Ors. (2010) 5

SCC 600 by stating:

“We now turn to the question whether the appellant's remarks could reasonably amount to offence of defamation as defined under Section 499 IPC. In the impugned judgment dated 30.4.2008, the High Court observed that as to whether the appellant could claim a defence against the allegations of defamation was a factual question and thus would be decided by a trial Court. However, even before examining whether the appellant can claim any of the statutory defences in this regard, the operative question is whether the allegations in the impugned complaints support a prima facie case of defamation in the first place. It is our considered view that there is no prima facie case of defamation in the present case.”

39. The Hon‟ble Supreme Court while upholding the

constitutional validity of criminal defamation (Section 499-

501 IPC) in Subramanian Swamy v. Union of India

(2016) 7 SCC 221 cautioned regarding mechanical

issuance of process by the Magistrate in cases of

defamation. The relevant paragraph is reproduced herein

below:

“The Court, though in a different context, has observed that there lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly.”

Bar & Bench (www.barandbench.com)

40. The Hon‟ble Supreme Court in Rajendra Kumar Sitaram

Pande v. Uttam (1999) 3 SCC 134 held that exceptions to

defamation, as provided in Section 499 IPC, can be tested

even at the initial stage when the exceptions are apparent

from the record. The Court held:

“The next question that arises for consideration is whether reading the complaint and the report of the Treasury Officer which was obtained pursuant to the Order of the Magistrate under sub-section (1) of Section 201 can it be said that a prima facie case exist for trial or exception 8 to Section 499 clearly applies and consequently in such a case, calling upon the accused to face trial would be a travesty of justice. The gravamen of the allegations in the complaint petition is that the accused persons made a complaint to the Treasury Officer, Amravati, containing false imputations to the effect that the complainant had come to the office in a drunken state and abused the Treasury Officer, Additional Treasury Officer and the Collector and circulated in the office in the filthy language and such imputations had been made with the intention to cause damage to the reputation and services of the complainant. In order to decide the correctness of this averment, the Magistrate instead of issuing process had called upon the Treasury Officer to hold inquiry and submit a report and the said Treasury Officer did submit a report to the Magistrate. The question for consideration is whether the allegations in the complaint read with the report of the Magistrate make out the offence under Section 500 or not. Section 499 of the Indian Penal Code defines the offence of defamation and Section 500 provides the punishment for such offence. Exception 8 to Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject matter of accusation. The report of the Treasury Officer clearly indicates that pursuant to the report made by the accused persons against the complainant, a departmental inquiry had been initiated and the complainant was found to be guilty. Under such circumstances the fact that the accused persons had made a report to the superior officer of the complainant alleging that he had abused to the Treasury Officer in a Bar & Bench (www.barandbench.com)

drunken state which is the gravamen of the present complaint and nothing more, would be covered by exception 8 to Section 499 of the Indian Penal Code. By perusing the allegations made in the complaint petition, we are also satisfied that no case of defamation has been made out. In this view of the matter, requiring the accused persons to face trial or even to approach the Magistrate afresh for reconsideration of the question of issuance of process would not be in the interest of justice. On the other hand in our considered opinion this is a fit case for quashing the order of issuance of process and the proceedings itself. We, therefore, set aside the impugned order of the High Court and confirm the order of the learned Sessions Judge and quash the criminal proceeding itself. This appeal is allowed."

GROUNDS

A. Because petitioner through her Twitter handle i.e. @bainjal

was commenting on the code of conduct of the ruling party in

appointment of a spokesperson of low credentials as that of

the respondent while tweeting that “Now the man who beat up

@pbhushan1 was arrested in a sexual harassment case

speaks for @BJP4India. Good job” dated 15.03.2017.

Petitioner had only remarked on the conduct of the ruling

party herein BJP in appointment of a person as their

spokesman who had criminally assaulted an advocate and

who had been involved in a sexual harassment case. The

tweet was targeted at the BJP and not respondent per se. The

tweet was also based on nothing but truth and in good faith

as this petition shows. The tweet was a step towards

accountability of the functioning of the ruling party BJP and

to alert the public about its code of conduct. The tweet was

thus in public interest.

Bar & Bench (www.barandbench.com)

B. Because respondent being the spokesperson of the BJP has

with ulterior intention targeted the petitioner who is a

journalist of high repute and eminence, by filing the mala fide

complaint because the petitioner has written an investigative

book titled „I am a troll: Inside the secret world of the BJP‟s

digital army‟ which uncovers the systemic abuse and attack

made by the BJP affiliated persons on the social networking

websites. The Petitioner has illustrated respondent in the

book as a BJP‟s Internet warrior who graduated from online

abuse to actual violence. Her book has been widely acclaimed

and praised internationally and nationally. The petitioner has

been consistently exposing the wrong doings of the

government and the ruling party in her book and her

writings. Her investigative stories have exposed the wrong

acts of various governments and political parties over the last

20 years. However, till date she has not faced any defamation

or other criminal charges throughout her career as an

investigative journalist. Respondent with an ulterior motive to

harass the petitioner has filed this defamation case.

C. Because there is a clear reason why the respondent has

chosen to target specifically the petitioner and not to file any

complaint or case against numerous others who have

commented on his appointment as spokesperson of the BJP.

The fact that the respondent is the person who attacked Mr.

Prashant Bhushan is confirmed by various news reports, the

charge-sheet filed by Delhi Police and respondent‟s own

candid admissions. However, respondent has chosen not file Bar & Bench (www.barandbench.com)

any defamation complaint against any person for naming him

as the person who assaulted Mr. Bhushan. Further

respondent has also not taken any action against Dr. Jwala

Gurunath for filing a sexual harassment case against him.

Thus it can be inferred that only the petitioner has been

specifically targeted to silence her voice. It is also to be noted

that the petitioner has never been accused of defamation in

her career spanning over 20 years.

D. Because the conduct of the respondent is dubious and

questionable. Respondent in 2010 had attacked the car of one

Kashmiri leader in Delhi, in 2011 he had disrupted Ms.

Arundhati Roy‟s book launch in Delhi and in 2012 he had

heckled a Kashmiri Hurriyat leader in Delhi. Respondent has

been extremely active on micro-blogging website Twitter and

other social media targeting critics of the BJP. He is a

notorious social media troller. Respondent has even claimed

in his complaint that he has never been charged for sexual

harassment whereas it is not true as the complaint against

sexual harassment has been filed by Dr. Jawala Gurunath on

01.01.2016 with the Karnataka Police against the respondent

for sexual harassment and insult to her caste identity. Thus

the conduct of the respondent is dishonest, misleading and

questionable.

E. Because petitioner‟s tweet is nothing but truth and it had two

parts: a) referring to Mr. Prashant Bhushan‟s assault case;

and b) referring to involvement in a sexual harassment case. Bar & Bench (www.barandbench.com)

As far as the first part is concerned, i.e. assault on Mr.

Bhushan, the same is reported extensively by a large section

of the media, both on the date of assault as well as

afterwards. The respondent had himself claimed credit for the

same using his twitter handle and was also arrested and

charge-sheeted by the Delhi Police. The respondent is out on

bail and the trial is still going on. For the respondent to

expect that no one would comment on his case till the trial is

completed and he is convicted, would mean that public would

have to wait for another 7-10 years before they can accuse

the respondent of the crime. As far as the second part of the

petitioner‟s tweet is concerned, the same was a reference to

the accusation of sexual harassment made by Dr Jwala

Gurunath in January 2016. Dr. Gurunath had tweeted and

repeatedly accused the respondent of sexual harassment. An

FIR was also lodged against the respondent for sexual

harassment by Dr. Jwala Gurunath. Her accusations have

been reported in media and have been commented on Twitter

by various prominent persons, but the respondent has

chosen not file any complaint against them. Further, he has

also not filed any defamation complaint against Dr.

Gurunath.

F. Because the respondent along with two others on 12.10.2011

had trespassed and assaulted advocate Prashant Bhushan in

his Supreme Court chamber. After the attack, Mr. Bhushan

was taken to Ram Manohar Lohia Hospital where doctors said

that he had received minor injuries on his head and leg. Bar & Bench (www.barandbench.com)

Hours before the assault the respondent had tweeted. "God

give us power to complete our mission." After the assault, the

respondent claimed credit for the assault exulting, “He try to

break my nation, I try to break his head. Hisab chukta.

Congrats to all. Operation Prashant Bhushan successful." In

another tweet he had posted: "We hit Prashant Bhushan hard

in his chamber in Supreme Court. If you will try to break my

nation, I will break your heads.” An FIR (182/2011) was

registered at Tilak Marg Police Station on the same date, i.e.

12.10.2011 and one of the accused Inder Verma was arrested.

On the next date, the respondent was arrested by the Delhi

Police along with another accused Vishnu Gupta for the

assault of Mr. Prashant Bhushan. A chargesheet was later

filed by the Delhi Police against the three accused including

the respondent under Sections 452, 323, 120(B) and 34 of the

IPC for the brutal assault on Mr. Prashant Bhushan.

G. Because the respondent has also been accused of sexual

harassment by Dr. Jwala Gurunath in a police complaint.

Between 02.01.2016 and 08.06.2017, Dr Jwala Gurunath on

twitter (@DrJwalaG) repeatedly accused the respondent of

sexual harassment. She alleged that the respondent had

made an indecent proposal by calling her 25 times to stay

over her place. A police complaint was lodged by Dr. Jawala

Gurunath on 01.01.2016 with the Karnataka Police against

the respondent for sexual harassment and insult to her caste

identity. In her letter to the police, Dr Gurunath has accused

the respondent of making an indecent proposal by calling her Bar & Bench (www.barandbench.com)

nearly 25 times. On 08.01.2016, an FIR 3/2016 was

registered by the Karnataka Police at Kalburgi, Karnataka on

the complaint of Dr. Jwala Gurunath against the respondent.

The case was subsequently transferred to Bangaluru. Crime

No. 32/2016 was registered by Bangaluru Police under

Section 3 of SC&ST Prevention of Atrocities Act, 1989, and

Section 66A of the Information Technology Act 2000. Though

the complainant had alleged harassment by the respondent,

the FIR did not mention the sections in IPC relating to sexual

harassment. Ld. Single Judge of the Karnataka High Court in

a petition filed by the respondent herein under Section 482

CrPC, vide judgment dated 14.07.2016, quashed proceedings

in Crime No. 32/16 of Kumaraswamy Layout police station,

Bengaluru on the ground that the complainant (Dr. Jawala

Gurunath) had not disclosed in her complaint that the

respondent was not a member of SC/ST and that he had

intentionally insulted her with an intent to humiliate in

public view. The learned single judge also observed that the

Hon‟ble Supreme Court had already struck down Section 66A

of the IT Act and therefore, the said offence was not attracted.

Though the FIR got quashed based on legal technicalities, it

can not be completely negated that the sexual harassment

case was initiated against the respondent.

H. Because the respondent is a public personality and BJP is the

dominant national political party. The information shared in

the article relates to public conduct of a public person and a

public entity. When the petitioner came to know about the Bar & Bench (www.barandbench.com)

appointment of the respondent as BJP‟s spokesperson, she

made a legitimate comment on public conduct of a political

party and their spokesperson. Petitioner‟s tweet was

manifestly and ex-facie based on truth and made in public

interest. Thus, the complaint of the respondent is clearly bad

in law and is only filed to harass the petitioner. There is no

right to reputation against truth. Truth triumphs any claim

for damaged reputation. Truth and public interest are clear

statutorily recognized defenses to defamation under the IPC.

Clear exception is provided in Section 499 IPC which protects

petitioner against the charges of defamation. Thus, ex-facie

the offence of defamation is not made out since the

petitioner‟s tweet is clearly covered by above clear exceptions

in built in the very definition of defamation as provided in

Section 499 IPC.

I. Because the respondent has not filed any defamation

complaint against Dr. Jwala Gurunath, a member of BJP for

publically naming the respondent as the person who

harassed her by calling her 25 times and asking her to allow

him to spend the night with her. Dr. Gurunath not only

lodged an FIR against the respondent, but also publically

tweeted about it numerous times and also wrote about it to

several prominent persons including the petitioner herein.

Since this matter came in public domain, numerous

publically influential persons have commented on it,

including on the character of the respondent. The respondent

also chose not to file any complaint against them. The Bar & Bench (www.barandbench.com)

respondent specifically targeted the petitioner, using her

tweet as an excuse, in order to harass her using the legal

process by filing a mala fide complaint. This has been clearly

done to further his political career within the BJP since he

knows that his party has been adversely commented upon by

the petitioner in her numerous articles.

J. Because the Hon‟ble Supreme Court in the case of State of

Haryana vs. Bhajan Lal (1992) Supp 1 SCC 335 dealt

extensively with the power of the High Courts under Article

482 CrPC specifically with reference to petitions seeking

quashing of criminal complaints. The Hon‟ble Supreme Court

specifically stated that the High Courts have the power to

quash complaint which is mala fide and laid down:

K. Because the Hon‟ble Supreme Court in R. Rajagopal vs.

State of Tamil Nadu, (1994) 6 SCC 632 had endorsed

Justice Brennan‟s caution that:

to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which „steer far wider of the unlawful zone‟…. The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with „actual malice‟ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

If a libel action is forbidden, even more so should criminal

action be forbidden lest it stifle democratic discourse.

Criminal Courts should therefore adjudge defamation

complaints in the spirit of Supreme Court‟s philosophical

mandate.

L. Because a three judge bench of the Hon‟ble Supreme Court

had quashed a criminal defamation complaint vide its

judgment in S. Khushboo v. Kaniammal & Ors. (2010) 5

SCC 600 by stating:

PRAYER

It is, therefore, most respectfully prayed that this Hon'ble

Court may kindly be pleased to:

(a) Quash the Complaint Case No. 44490 of 2017 titled

“Tajinder Pal Singh Bagga vs. Swati Chaturvedi”

pending in the Court of Ld. Metropolitan Magistrate-6,

Patiala House Courts, New Delhi, filed by the

respondent under Section 200 CrPC against the

petitioner for allegedly having committed offences under

Section 499, 500 and 501 IPC;

(b) Quash the summoning order dated 17.05.2018 passed

by the Ld. Metropolitan Magistrate-6, Patiala House

Courts, New Delhi in Complaint Case No. 44490 of 2017

titled “Tajinder Pal Singh Bagga vs. Swati Chaturvedi”;

order/orders as may be deemed fit and proper on the

facts and in the circumstances of this case.

PETITIONER:

THROUGH:

PRANAV SACHDEVA COUNSEL FOR THE PETITIONER

DRAWN BY: Surabhi Kumari DELHI DATED: JULY 2018