The Supreme Court Wednesday said it could ask the magistrate to examine afresh whether there was evidence to prosecute Congress vice-president Rahul Gandhi in a criminal defamation case for allegedly accusing the RSS, during a speech two years ago, of killing Mahatma Gandhi.
A bench of Justices Dipak Misra and Rohinton F Nariman questioned the magistrate’s order on directing the police to collect evidence against Rahul after an RSS member filed a complaint under relevant provisions of the IPC in Maharashtra’s Bhiwandi court. The court remarked that the case could be sent back to the magistrate for re-examining if there were serious legal flaws in the procedure adopted by him.
“Magistrate can’t call for report from police. In criminal defamation, police has no role, everybody makes all sorts of speeches. Section 199 (filing private complaint) of the Criminal Procedure Code (CrPC) is a different procedure,” observed the bench. It pointed out that the case was instituted on the basis of a private complaint and the complainant was obligated to adduce material to satisfy a magistrate that the prosecution was warranted.
The bench underlined the “limitations” of a criminal defamation case and also referred to its May 13 judgment that had noted that a magistrate should be careful in examining a criminal defamation complaint.
Senior advocate U R Lalit, appearing for RSS member and complainant Rajesh Kunte, sought time to respond.
Representing Rahul, senior lawyer Kapil Sibal said the law was settled that the person alleging criminal defamation was required to convince the magistrate and no role of police was called for. The bench adjourned the matter to August 24.