Justice N R Borkar rejected Gandhi’s petition on Tuesday, finding no manifest illegality or perversity in the magistrate’s decision to issue process on a complaint filed by Bharatiya Janata Party member Mahesh Shrishrimal. The court, however, extended protection from proceedings before the magistrate for six weeks to enable Gandhi to approach the Supreme Court.
The case stems from remarks Gandhi made in 2018 while attacking Modi over the Rafale fighter jet deal. Shrishrimal alleged that Gandhi’s statements, including the description of the Prime Minister as a “commander-in-thief”, harmed not only Modi’s reputation but also that of BJP members and supporters associated with him.
Gandhi, a Congress MP and Leader of Opposition in the Lok Sabha, had challenged an August 28, 2019 order of a metropolitan magistrate in Mumbai issuing summons in the complaint. His lawyers argued that Shrishrimal lacked the legal standing to prosecute the case because the allegedly defamatory words were directed at Modi and not at an identifiable class of people.
Senior advocate Sudeep Pasbola and advocate Kushal Mor, appearing for Gandhi, also contended that the complaint was frivolous, not maintainable and intended to harass him. They argued that criminal defamation law permits a complaint only by a person who can show that he or she was directly aggrieved by the alleged imputation.
The High Court did not accept that contention at this stage. Justice Borkar held that the BJP, as a registered national political party, constituted an identifiable body and that it could not be ruled out at the threshold that the alleged remarks extended to people clearly identified with the party and its leadership.
The judge observed that the statements prima facie described Modi, who is a prominent face of the BJP, as having engaged in theft while being portrayed as the commander of thieves. Whether the alleged imputation affected only the Prime Minister or extended to BJP office-bearers and members was a question requiring evidence, the court said.
That issue, Justice Borkar held, should be examined by the trial court rather than decided by the High Court while exercising its inherent powers. The court said it found no infirmity in the magistrate’s order warranting interference under Section 482 of the Code of Criminal Procedure, the provision invoked by Gandhi to seek quashing of the proceedings.
Advocate Rohan Mahadik, representing Shrishrimal, argued that the comments targeted party members as a group and that the complainant was therefore an aggrieved person entitled to initiate prosecution. Maharashtra Advocate-General Milind Sathe also opposed Gandhi’s plea, maintaining that Shrishrimal had locus standi and that disputed questions should not be assessed at the preliminary stage.
The original summons was issued under Section 500 of the Indian Penal Code, which then prescribed punishment for criminal defamation of up to two years’ simple imprisonment, a fine, or both. The magistrate had recorded that Shrishrimal’s sworn statement made out a prima facie case for issuing process. The complaint relied on Gandhi’s public remarks and material placed before the court concerning his criticism of Modi during the political dispute over the Rafale procurement.
Gandhi’s challenge focused on who could maintain the complaint. His side said an individual party worker could not claim injury from words aimed at the Prime Minister. Shrishrimal maintained that the language also lowered the standing of BJP members because Modi was the party’s leader and face at the time.
The High Court had first stayed further proceedings before the magistrate on December 16, 2021, while Gandhi’s petition was pending. It had also exempted him from personal appearance. Following Tuesday’s ruling, that protection will remain in force for six weeks, during which Gandhi can challenge the decision before the Supreme Court.
