Rahul Gandhi gets reprieve from Supreme Court in RSS case

Giving huge relief to Congress vice-president Rahul Gandhi, the Supreme Court said on Wednesday that in criminal defamation cases, the police can’t enquire into the complaint and the magistrate should independently examine its truth or veracity before taking cognisance and issuing summons.

In the resumed hearing of the petition by Rahul Gandhi, seeking to quash the summons and criminal proceedings, a bench of Justices Dipak Misra and Rohinton Nariman said the police had no role in criminal defamation cases. In this case the magistrate had called for a police report on the alleged statement by Rahul Gandhi on the role of the RSS in Mahatma Gandhi’s assassination, and on that basis had taken cognisance of the complaint, which is erroneous.

The matter will have to be sent back to the magistrate for fresh consideration, the bench observed. Justice Misra told senior counsel U.R. Lalit (father of Justice Uday Lalit) that the magistrate had abdicated his duty by asking the police for a report. This was unheard of in criminal law, he added.

Mr Lalit, however, said the magistrate only wanted to know from the police if any such incident had occurred. But Justice Misra said in his judgment upholding the validity of IPC Sections 499 and 500, he had clearly held that the power of magistrate to call for a report from the police under CrPC provisions 156(3) and 202 wouldn’t apply to criminal defamation cases. The bench posted the matter for further hearing on August 23.

Justice Misra pointed out that in defamation complaints the onus of proving the averments is on the complainant who will have to bring in evidence or witnesses and the magistrate will have to independently make an enquiry and exercise his powers of taking cognizance of the complaint, if he is satisfied with the evidence. Curiously none of the parties were aware of this legal position till Justice Misra pointed out to them about his judgment on defamation law.

Justice Misra said the procedure adopted by the magistrate is erroneous and asked Mr. Lalit whether he had practiced in criminal law and counsel replied that he had some practice in criminal law. But after Justice Rohinton Nariman whispered something to Justice Misra, he recogised the senior counsel as one with vast experience in criminal law.

Rahul Gandhi during an election speech in March 2014 at Bhiwandi in Maharashtra is alleged to have said that Gandhiji was shot dead by RSS people and their people talk of Gandhiji. The comment led to a criminal complaint being filed by RSS activist Rajesh Kunte against Rahul and the case is still pending.

Justice Misra told senior counsel Kapil Sibal, appearing for Rahul that the magistrate could not have sought a police report before taking cognizance of the compliant. Mr. Sibal conceded that he was not aware the legal position as he did not fully read the judgment on defamation and agreed for remanding the matter back to the magistrate.

When Additional Solicitor General Tushar Mehta, appearing for Maharashtra said the issue needed examination by the apex court, Mr. Sibal objected and said in private complaint the State had no role to play.

The Bombay High Court had in May 2015, dismissed Rahul’s plea for quashing the case, following which he had filed the special leave petition in the apex court which is now being heard.