Rahul Gandhi Defamation Case: Bombay High Court Seeks Advocate General Birendra Saraf’s Assistance On Legal Issues Involved

The Bombay High Court on Tuesday sought the Advocate General’s assistance in the petition moved by Congress leader Rahul Gandhi to quash the defamation case filed by a BJP leader against him for his "commander in thief" social media post and video from 2018.

Justice Sarang Kotwal noted that Gandhi had raised significant questions of law in his plea, including a legal bar under Section 199 of the CrPC for complainant Mahesh Shrishrimal to file the complaint.

“Considering these submissions, it is quite clear that the matter involves important questions of law, including special procedure provided U/s.199 of the CrPC. Therefore, I deem it necessary to request the learned Advocate General of Maharashtra to address the Court on all the legal issues involved in this case.”

In 2021 Gandhi approached the Bombay High Court under section 482 of the CrPC to quash a Girgaum Magistrate's order issuing process and summoning him to record his plea under section 204a of CrPC on Shrishrimal's complainant.

In his plea, Rahul Gandhi claimed the constitutional guarantee of freedom of speech and expression protects criticism of the opposite person unless any statement was made with actual malice, which means the statement was "by knowledge and made with reckless disregard whether it was false or not."

In an affidavit filed recently, the complainant said that Gandhi's remarks were clearly directed toward the Prime Minister, thereby not only tarnishing his image but by implication and insinuation comparing all BJP functionaries, including me to thieves and lowering their reputation in society at large.

He accused Gandhi of publishing the video so that the newspaper agencies and other media would further amplify and circulate it.

On Tuesday Advocate Sudeep Pasbola for Gandhi made various submissions on merits of the matter. He also made certain submissions on legal aspects. He referred to Section 199 of the CrPC and submitted that there was a legal bar for BJP leader to file the complaint.

He referred to Section 199(2) of the Code which prescribes special procedure in respect of the alleged defamation of the authorities mentioned under that sub section.

Pasbola referred to Section 499 of the Indian Penal Code and in particular referred to Explanation 2 which speaks about collection of persons. He submitted that, the political party is not an identifiable group of persons and, therefore, Shrishrimal could not have filed the complaint in his representative capacity. Pasbola also submitted that the case involves infringement of Article 19 of the Constitution of India.

On the other hand, Advocate Niteen Pradhan, for the complainant submitted that Shrishrimal himself is an aggrieved person. In any case, he is a member of ‘BJP Maharashtra Pradesh Committee’ and therefore, in that capacity he was entitled to file the complaint.

However, the court was of the view that the Advocate General Birendra Saraf’s assistance would be required in the case and adjourned the matter till October 17, 2023. Interim relief of stay on proceedings to continue till then.