Arvind Kejriwal V State

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Page 1 Monday, September 02, 2024

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2024 SCC OnLine Del 719 : (2024) 307 DLT 226
In the High Court of Delhi at New Delhi

(BEFORE SWARANA KANTA SHARMA, J.)
Arvind Kejriwal … Petitioner;

Versus
State and Another … Respondents.
CRL.M.C. 6347/2019
Decided on February 5, 2024, [Reserved on : 10.01.2024]
Advocates who appeared in this case :
Mr. Manish Vashishth, Senior Advocate with Mr. Karan Sharma, Mr.
Rishabh Sharma, Mr. Vedanth Vashishth, Mohd. Irshad & Ms. Harshita
Nathrani, Advocates.
Mr. Manoj Pant, APP for the State.
Mr. Raghav Awasthi, Mr. Kunal Tiwari and Mukesh Sharma,
Advocates for respondent No. 2.
The Judgment of the Court was delivered by
SWARANA KANTA SHARMA, J.:—
INDEX TO THE JUDGMENT
PRELUDE ……………………………………………………………………………… 3
BACKGROUND FACTS ………………………………………………………….. 5
The Allegations
………………………………………………………………………………….. 7
History of Judicial Proceedings
…………………………………………………………… 8
ARGUMENTS ON BEHALF OF PETITIONER ……………………… 9
ARGUMENTS ON BEHALF OF RESPONDENT NO. 2 ……….. 12
THE ORDERS IMPUGNED BEFORE THIS COURT …………… 13
ANALYSIS & FINDINGS ………………………………………………………. 18
I. ARGUMENT THAT THE COMPLAINT WAS WITHDRAWN
EARLIER ……………………………………………………………………………… 18
II. THE OFFENCE OF DEFAMATION ……………………………….. 21
Meaning and Definition …………………………………………………………………….
21
Provisions of Law ……………………………………………………………………………..
23
Essential Ingredients to Constitute Offence of Defamation
……………… 25
Issuance of Process/Summons vis-a-vis Offence of Defamation :
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Material Considerations …………………………………………………………………….

28
III. BALANCING CRITICAL YET COMPETING INTERESTS :
FREEDOM OF SPEECH & EXPRESSION v. PROTECTING A PERSON
FROM REPUTATIONAL INJURY ………………………… 31
IV. MEETING THE CHALLENGE OF ADJUDICATING GREY
AREA OF LAW NOT YET EFFECTIVELY ADJUDICATED UPON :
LAYING FOUNDATION STONE OF JURISPRUDENCE
……………………………………………………………….. 33
Pace of Spread of Scandalous Content : From the Echo of
Whispers in Pre-Digital Era compared to the Spread at Lightning
Speed of Digital Dissemination in Digital Era
…………………………………………………………….. 35
V. ‘RETWEETING’ A DEFAMATORY IMPUTATION WILL
AMOUNT TO ‘PUBLICATION’ FOR THE PURPOSE OF
APPLICABILITY OF SECTION 499 OF IPC ………………………….. 36
VI. REACH & INFLUENCE OF THE PERSON RETWEETING
DEFAMATORY CONTENT …………………………………………………. 41
VII. WILL EVERY ‘RETWEET’ ATTRACT ACTION UNDER
SECTION 499 OF IPC? …………………………………………………………. 42
VIII. WHETHER PETITIONER IS LIABLE TO BE SUMMONED
FOR HIS ACT OF RETWEETING THE ALLEGEDLY DEFAMATORY
CONTENT? ………………………….. 45
CONCLUSION …………………………………………………………………….. 49
PRELUDE
1. The sheer magnanimity of reputational injury caused by
posting defamatory content against a person who holds his reputation
dear to him, which may often be dismissed as a mere tweet or retweet,
has been urged to be examined, persuading this Court to adjudicate
this critical issue since now the Cyber World turns Whispers into
Symphony.
2. In today's digital age, the dynamics of law change, as exemplified
by the present case, where this Court has been posed with a situation
where reputational harm has been alleged by the complainant by a
repost in cyberspace. In this evolving digital age, physical damage to
someone's reputation is not the only possibility but it is the cyber
world which now has taken over the real world, where if any
defamatory statement is made, the effect of reputational harm is
amplified. In the realm of defamation, statements made in the
physical world may resemble a mere whisper, but when echoed
in the cyber domain, the impact magnifies exponentially.
3. The issue before this Court through the present petition is one
which requires this Court to lay down certain principles based on
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jurisprudence of defamation, in the light of the evolution of cyberspace,

and its extensive usage as a means to damage the reputation of
someone. The Court is posed with a situation where an alleged
defamatory content has been posted by an original author, and then
the same content has been retweeted/reposted on the popular social
media platform ‘Twitter’ (now ‘X’) by the present petitioner.
4. While the Courts may still struggle, faced with issue as to what
will amount to ‘publishing’ and whether ‘re-tweeting’ of a defamatory
content also amounts to publishing so as to be covered under the
definition of Section 499 of Penal Code, 1860 (‘IPC’), the concerns
arising out of such vast reach of defamatory content and corresponding
reputational injury to a person has given rise to the following
important question of law:
Whether ‘Retweeting’ any defamatory content will be
covered in the meaning of ‘publication’ or not, in terms of
Section 499 of IPC & whether the act of the person
‘retweeting’ such content though not being the original author
of the tweet, will also be liable to attract action under Section
499 of IPC or can he take refuge under the argument that he
was not the original author of the content?
5. In case reported as 2017 SCC OnLine Del 11191, this Court had
observed that it was for the Trial Court to decide if retweeting an
allegedly defamatory content/tweet would attract rigours of Section 499
of IPC or not, by way of a full fledged trial. These observations are as
under:
“26. …Whether retweeting would attract the liability under Section
499 IPC, is a question which requires to be determined in the totality
of the circumstances and the same will have to be determined
during trial and any interference at this stage by this court is likely
to prejudice the findings of the Trial Court…”
6. In this background, this Court is of the opinion that whether a
retweet is defamatory in content or not, so as to attract rigours of
Section 499 of IPC, will of course be a matter of trial. However, whether
‘Retweeting’ by a person, a defamatory content, will amount to
‘publication’ or not so as to form the ingredient of Section 499 of IPC
for the purpose of summoning of an accused, will essentially have to be
decided prior to commencement of the trial. It is not the issue for
adjudication before this Court in the present case to return a finding as
to whether it was proved beyond doubt that the retweet in question
was defamatory or not. The issue before this Court is the critical
issue as to whether a retweet in itself, being not considered as
original content by an original author, can form the basis of
summoning an accused for offence under Section 499 of IPC.
7. This major issue being at the centre of controversy in multiple
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cases pending before this Court reveal the difficulties currently faced by
Trial Courts in this regard and has persuaded this Court to take a
comprehensive look at this issue for the purpose of summoning an
accused.
BACKGROUND FACTS
8. On 06.05.2018, one Sh. Dhruv Rathee i.e. original author of the
impugned/alleged defamatory content had uploaded a video on
YouTube, wherein inter alia, certain allegations were made against
respondent no. 2 which has been referred to as ‘First Offending
Publication’ in the petition. On 07.05.2018, Sh. Dhruv Rathee published
on his Twitter account, an allegation that the Information and
Technology (‘IT’) Cell of Bharatiya Janata Party (‘BJP’) had attempted
to bribe a person to defame Sh. Dhruv Rathee and he had drawn a
reference to Uniform Resource Locator (‘URL’) of the first impugned
publication, which has now been termed as ‘Second Offending
Publication’ in the petition. On 07.05.2018, the petitioner herein, Sh.
Arvind Kejriwal had reposted i.e. ‘retweeted’ the second offending
publication of Sh. Dhruv Rathee, which is termed as the ‘Impugned
Publication’, and which read as under:
9. On 28.02.2019, a complaint was filed by the

complainant/respondent no. 2 Sh. Vikas Sankritayan @ Vikas Pandey,
against the petitioner Sh. Arvind Kejriwal, for initiating proceedings
against him for commission of offences punishable under Section
499/500 of IPC.
The Allegations
10. Respondent no. 2 states that he is the founder and operator of
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popular social media page “I SUPPORT NARENDRA MODI”, and that it

shows true and correct information, and has a following of over crores
of persons on his social media handles. He alleges that Sh. Dhruv
Rathee, who claims to be an engineer and lives in Germany, operates a
YouTube channel under the name and style of ‘Dhruv Rathee’ and has a
huge following, and as on date of filing of complaint, he had 16,26,422
subscribers. According to the complaint filed alongwith the supporting
evidence before the learned Trial Court, a YouTube video with the title
“BJP IT Cell Part-2” was circulated by Sh. Dhruv Rathee on 06.05.2018,
wherein certain defamatory statements were made against respondent
no. 2, extracts of which are reproduced hereinbelow:
“…Vikas Pandey is the Second-in-Command of the BJP IT Cell.
Through his Social Media Page, “I Support Narendra Modi”, which is
linked by more than 1 Crore 50 Lakh people, Vikas Pandey spreads
fake news. Vikas Pandey has offered a bribe of Rs. 50 Lakhs to
Mahavir Prasad through one Abhishek Mishra”.
***
“… Yahaan pe aap dekh sakte hain dosto Mahavir pura try kar rha
hai ki kisi trah se Vikas Pandey se directly phone pe baat ho jaaye
uski, qki agar uski audio recording saamne aa gyi to puri tarah se
inka game over ho jaana tha. Lekin unfortunately iski audio recording
saamne nahi aa payi, yahi ek reason hai ki mene is video ko upload
karne me bhi 2 mahine laga diye, usko do mahine guzar chuke hain.
Qki me bhi try kar rha tha Mahavir ko bolne ki. .. ki tu is tarah se try
kar … tu us tarah se try kar … kiisse directly phone par baat ho
jaaye, wo audio recording mil jaati to boht sahi ho jaata. Lekin kher
nahi mil paayi, ye bhi boht achha proof hai mujhe lagta hai, ye bhi
boht definite proof hai ki BJP IT Cell aise gande kaam karta hai
…. Or dekh abhi, bhi time hai galti hui hai tujhse uske liye rl, laafi
maang Ie, ek naya video bana or desh ki janta se sorry bol de ki
haan mene ye galti kari pr me iske liye maafi mangta hu. Or desh ko
sach bata ki Vikas Pandey or BJP IT Cell ke baare me, qki ye log
desh” ko tabah karne me lage “- hue hain, itni nafrat faila rahe hain
aaj ke time me …..
…. Is video ko share kijiye dosto or janta fak sach pahunchaaiye
iske baare me ….”
11. Thereafter, Sh. Dhruv Rathee had also shared the URL of the
defamatory video on his Twitter account.
12. It is alleged that the petitioner herein had then retweeted the
said defamatory content from his Twitter account, without checking the
authenticity of the video, prior to spreading it to the public at large. It
is further alleged that Sh. Arvind Kejriwal is followed by a large number
of people, and by retweeting the offending content, he had made
available the defamatory content to a large number of audience, at
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national and international level.

13. He further alleged that two of his friends namely Sh. Abhishek
Kulshrestra and Sh. Punit Agrawal had called him to express their
dismay with regard to the allegations made against him.
History of Judicial Proceedings
14. The respondent no. 2 was examined under Section 200 of the
Criminal Procedure Code, 1973 (‘Cr.P.C.’) at the pre-summoning stage,
as he had filed the complaint under Section 499/500 of IPC on the
allegations mentioned above. The petitioner was summoned as an
accused by the learned Additional Chief Metropolitan Magistrate-I,
Rouse Avenue Courts, New Delhi (‘Trial Court’) vide order of
summoning dated 17.07.2019.
15. Being aggrieved by the issuance of summons and the complaint
filed by the respondent no. 2, the petitioner had preferred a revision
petition before the Sessions Court which was dismissed vide order
dated 30.10.2019 by learned Additional Sessions Judge/Special Judge
(PC Act) CBI-09, Rouse Avenue Courts, New Delhi (‘Sessions Court’).
16. Aggrieved by the aforesaid orders passed by the learned Trial
Court and Sessions Court, the petitioner Sh. Arvind Kejriwal has
approached this Court by way of present petition under Section 482 of
Cr. P.C. seeking setting aside of the order dated 17.07.2019 passed by
the learned Trial Court in in Ct. Case No. 15/2019, and order dated
30.10.2019 passed in Criminal Revision No. 28/2019 by the learned
Sessions Court.
ARGUMENTS ON BEHALF OF PETITIONER
17. Sh. Manish Vashishth, learned Senior Counsel appearing on
behalf of the petitioner, while assailing the orders passed by both the
learned Trial Court and Sessions Court, argues that the learned Trial
Court has summoned the petitioner in a mechanical manner and has
presumed the alleged statements/re-tweet to be defamatory on the
face of it, without even properly examining the same. It is stated that
summoning is contrary to the settled principles of law since the
Magistrate has to carefully scrutinize the evidence brought on record
and must satisfy itself that the ingredients of the alleged offence are
made out, which was not done in this case. It is argued that a bare
perusal of the retweet in question would show that the same does not
constitute any offence of defamation as the offence of defamation,
besides the requirement of mens rea, should consist of three essential
ingredients i.e. (i) making or publishing any imputation concerning any
person, (ii) such imputations must have been made by words either
spoken or intended to be read or by signs or by visible representations,
and (iii) the said imputation must have been made with the intention
to harm or with knowledge or having reason to believe that it will harm
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the reputation of the person concerned. It is submitted by learned

Senior Counsel that the impugned orders failed to appreciate that the
alleged re-tweet was not done with intent to harm respondent no. 2,
nor was it likely to harm him in any manner. It is further argued that
the learned Trial Court has failed to consider that admittedly, the entire
version deposed by PW-2 is hearsay, and an expression of dismay is not
defamation. It is contended that the best case as alleged by the
respondent no. 2 is that the petitioner has retweeted a link of some
video, of which neither the petitioner was creator/author nor publisher
of the same, and thus, essential ingredients of the defamation are not
attracted in the present case as the same would not amount to
publication in terms of ingredients of Section 499 of IPC. It is also
stated that the learned Trial Court, while passing the impugned
summoning order, has failed to consider the exceptions provided under
Section 499 of IPC, including the exception of public good, and has
recorded an erroneous finding that at this stage, the consideration is
whether there exists sufficient grounds to summon or not.
18. Further, it is also argued by learned Senior Counsel for the
petitioner, that the respondent no. 2 had initially filed a complaint i.e.
Ct. Cases 5786/2018 in Saket Courts, South East District, Delhi and on
18.10.2018, he had got his statement recorded before the concerned
Magistrate and had withdrawn the complaint qua the petitioner, and
accordingly the proceedings qua the petitioner herein were dropped. It
is submitted that withdrawal/dropping of proceedings qua an accused
in complaint case amounts to acquittal of the accused as per Section
257 of Cr. P.C., therefore, no cause of action whatsoever survives
against the petitioner herein and the respondent no. 2 cannot be
allowed to bypass the mandate of law by filing a fresh complaint case.
It is therefore argued that respondent no. 2 had withdrawn his earlier
complaint qua the petitioner and had instituted a subsequent complaint
against the petitioner alleging that the petitioner through his retweet
had defamed the respondent no. 2, without arraying the other accused
persons in the present complaint. It is submitted that only recourse
available to the respondent no. 2 was to approach this Court under
Section 407 of Cr. P.C. seeking transfer of the case to the Court of
competent jurisdiction.
19. It is also contended that the petitioner was not named by the
respondent no. 2 in his statement dated 18.10.2018 recorded in the
earlier complaint case whereas in the statement dated 01.05.2019
recorded in the present case, the respondent no. 2 because of his mala-
fide intention, has deposed an entirely different version and named the
petitioner. Thus, it is argued that respondent no. 2 has deposed two
entirely different versions and purposely named the petitioner, which
on the face of it, shows mala-fide intentions and oblique motives.
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Therefore, in view of these submissions, learned Senior Counsel prays

that the present petition be allowed and the impugned order be set
aside or the case be remanded back to the learned Trial Court for
deciding afresh as per law.
ARGUMENTS ON BEHALF OF RESPONDENT NO. 2
20. Sh. Raghav Awasthi, learned counsel for respondent no. 2, who
seeks to sustain the impugned orders, argues that the allegations made
against the respondent no. 2 are false, malicious and defamatory and
the same have lowered his reputation in the eyes of right thinking
members of the society. It is contended that without there being any
proof in support of allegations levelled against the respondent no. 2,
the petitioner herein, who is the Chief Minister of Delhi, has retweeted
the video, shared by Sh. Dhruv Rathee on his YouTube channel, without
verifying its authenticity and due to the large following of the petitioner
herein, the video had reached a large number of people not only in
India, but internationally also. On these grounds, it is argued that the
impugned orders suffer from no infirmity and the learned Trial Court
has rightly summoned the petitioner herein in the present case since a
prima facie case of defamation is made out against the petitioner and
the issues which the petitioner has raised by way of this petition are all
triable in nature.
21. It is further submitted on behalf of respondent no. 2 that the
earlier complaint filed by respondent no. 2 before the Saket Courts,
Delhi was withdrawn qua the present petitioner only since the said
Court was not competent to try any matter in relation to the petitioner
herein, who is an MLA and Chief Minister of Delhi, and therefore, the
respondent no. 2 had no option but to withdraw the complaint from the
previous Court with liberty to file a fresh complaint against the
petitioner in the court which is competent to try cases pertaining to
MPs/MLAs. In this regard, reliance is also placed on decision of this
Court in case of Satish Dayal Mathur v. Mackinnon Mackenzie and
Company, 1986 SCC OnLine Del 128 to argue that Section 257 of Cr.
P.C. would not be applicable. On these grounds, learned counsel for
respondent no. 2 prays that the present petition be dismissed.
22. This Court has heard arguments addressed by learned Senior
Counsel for the petitioner as well as learned counsel for respondent no.
2, and has gone through the material placed on record and written
submissions filed by both the parties.
THE ORDERS IMPUGNED BEFORE THIS COURT
23. The learned Trial Court, while summoning the petitioner herein
vide order dated 17.07.2019, had passed the following order:
“11. Defamatory statement is one which tends to injure the
reputation of a person. It is a publication which tends to lower a
person's reputation in the estimation of right thinking members of
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the society generally or which make them shun or avoid that person.
‘According to section 499 of The Penal Code, 1860, a person is said
to commit the offence of defamation when he, by words either
spoken or intended to be read, or by signs or by visible
representations, makes or publishes any imputation concerning any
person intending, to harm, or knowing or having reason to believe
that such imputation will harm, the reputation of such person except
where the publication is protected by the ten statutory exceptions
provided in this provision itself.
12. The complaint clearly set out the imputations made against
the complainant by the respondent. The complainant has relied upon
the defamatory video Ex. CW1/2 and computer printout of the tweet
Ex.CW1/3 of the respondent whereby he re-tweeted the video. These
electronic evidences are supported by the complainant's certificate
under section 65 B of the Indian Evidence Act Ex.CW1/5.
Complainant ‘has also filed the transcript of the video on record.
13. Respondent is not the original author of the alleged
defamatory video. The only allegations against him is that he re-
tweeted the video containing the defamatory allegations against the
complainant, without confirming its veracity.
14. In this manner, what the respondent has done, is that he has
repeated the defamatory statements on a social media platform,
which amounts to its further publication. It is no defence to an
action of defamation that the respondent published it by way of
repetition. “Talebearers are as bad as tale-makers”. Every repetition
of defamatory words is a new publication and a distinct cause of
action.
15. In order to decide whether to summon respondent for trial,
existence of only a prima facie case to summon them has to be seen
in contrast to the standard of proof “beyond reasonable doubt”
required for conviction. In legal terms, the consideration at this
stage is whether there exists sufficient grounds to summon them or
not (section 204 of The Code of Criminal Procedure). The situation
may be different if the respondent is able to make out a defence for
him from amongst those defences carved out in the provision itself
(section 499 of The Penal Code, 1860). But these defences cannot be
looked at this stage according to the law. The defences have to be
pleaded and proved by the person charged with defamation. At the
initial stage, the Court has to look into the complaint and the
statement/evidence of the complainant and has to believe him. The
Court has to see whether if the impugned material is prima facie
defamatory or not and whether the Court has sufficient grounds to
proceed with the case. The video referred above are if seen in the
entire context of the things and evidence of the complainant seems
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to be defamatory if they do not fall within any of the statutory

defences prescribed by law itself as well as the other legal
requirements. The entire burden will be on respondent to plead and
prove the defence on which he may rely upon.
16. In defamation cases, one of the test is whether under the
circumstances in which the writing was published reasonable men to
whom the publication was made would’ be likely to understand it in
a defamatory sense. Much also depends on the intention of the
maker of the statement which is a subject of trial.
17. Therefore, the aforesaid discussions shows that allegations in
the video are prima facie defamatory and refers to complainant Mr.
Vikas Sankrityayan @ Vikas Pandey making him an aggrieved person
within the meaning of section 199 Cr. P.C. The inquiry as
contemplated under section 202 of the Code of Criminal Procedure
has been duly conducted by examining the complainant and his
witnesses to arrive at the conclusion for this stage of the case.
Therefore, in view of the aforesaid discussion there exists sufficient
grounds to proceed against the respondent Arvind Kejriwal under
section 500 IPC. Accordingly, Sh. Arvind Kejriwal is summoned for
commission of offence of defamation under section 500 of the Penal
Code, 1860.”
24. Learned Sessions Court, while dismissing the revision petition
filed by the petitioner where the order of summoning was challenged,
had passed the following order dated 30.10.2019:
“21. It is not in dispute that republication of libel is a new libel
which was so held in the case of Harbhajan Singh v. State of Punjab,
1961 Cri LJ 710. It was further observed therein that the publisher of
the libel is strictly responsible, irrespective of the fact whether he is
the originator of the libel or is merely repeating it. Tweeter a micro
blogging and social network website, is used for spreading of
messages. The Tweets so made on this platform are read by public
on Internet who visit the platform of the creator of the Tweet. The
platform, like Tweeter, can be used for sharing ideas and
dissemination of thoughts. Whenever the user of this platform after
reading the Tweet click on the ‘re-tweet’ button of any user, the
Tweet reaches the followers of the ‘re-tweeting’ user. Thus, it
reaches the new viewers for whom it may amount to publication.
Retweeting, therefore, would amount to re-publication so far as the
followers of retweeting user are concerned.
22. The question in the present revision petition is whether the
revisionist had re-tweeted the contents of the video. The learned
counsel for the revisionist has submitted that the revisionist has not
re-tweeted the video. However, the copy of the re-tweet placed on
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record shows that the link of video was also mentioned in the re-
tweet. The re-tweet by the revisionist shows that he has referred to
the link i.e. “youtu.be/BsIKjxaP4Ik” on which the video containing
the defamatory contents can be watched. He has further mentioned
‘Share and RT’. Thus, it appears that the revisionist had re-tweeted
the entire tweet along with mentioning the link on which the video
can be watched by his followers on his tweeter account.
23. Learned counsel for revisionist argued that there was no
intention on the part of the revisionist to cause any defamation. He
referred to the judgment titled as Standard Chartered Bank v. Vinay
Kumar Sood, CrL M. C. No. 3828/2007 decided on 06.02.2009. He
argued that the revisionist does not know complainant therefore,
there cannot be any intention on his part to cause harm to the
reputation of complainant. In the judgment on which learned
counsel has relied, it was observed by the Hon'ble Delhi High Court
that the intention to cause harm is most essential sine qua non for
the offence under Section 499 IPC. It was held that the offence
under Section 500 IPC requires blame worthy mind and is not a
statutory offence requiring no mensrea. However, it may be noted
here that the Hon'ble Delhi High Court in the Standard Chartered
Bank's case (supra) was dealing with a car in which a limited
company was arrayed as an accused for the offence under Section
500 IPC. Therefore, the court dealt with the issue of ‘mensrea’ and
held that a company cannot in any case be held guilty under Section
500 IPC because the most essential ingredients of the offence i.e.
‘mensrea’ would be missing as a company is juristic entity or an
artificial person.
24. Section 499 IPC defines the offence on defamation as under:”
Defamation.-Whoever, by words either spoken or intended to be
read, or by signs or by visible representations, makes or publishes
any imputation concerning any person intending to harm, or knowing
or having reason to believe that such imputation will harm, the
reputation of such person, is said, except in the cases hereinafter
expected, to defame that person.”
25. A bare perusal of the definition of the defamation would show
that the imputation which harm the reputation of the person against
whom they are made must be either (a) with an intention, or (b)
with knowledge or (c) having reasons to believe that such
imputation will harm the reputation of the ‘person concerned’.
26. Whether in a particular case there was any such intention,
knowledge, reason to believe or not is a question of fact which can
be decided by way of leading evidence. Section 499 IPC is also
subject to certain exceptions which bring the imputation out of the
periphery of defamation. However, these exceptions would always be
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question of facts which can be decided at the trial. What is the

nature of imputation, under what Circumstances it was made, the
status of the person who is making imputation and of the person
against whom the said imputation is made, whether the imputation
were made in good faith etc. are some of the defences which are
available to an accused. However, such defence can be considered by
the trial court after the evidence is led by both the parties.
27. The impugned order has dealt with all the relevant aspects of
the issues involved at the stage of summoning. At this stage, the
court has only to see if there are sufficient grounds to proceed
further or not and if the impugned order is weighed on this scale
then I find no illegality, in propriety or irregularity in the order.
28. With these observations, the revision petition is dismissed.
29. TCR along with the copy of the order be sent to the learned
trial court.
30. Revision Petition be consigned to record room.”
ANALYSIS & FINDINGS
I. ARGUMENT THAT THE COMPLAINT WAS WITHDRAWN EARLIER
25. It was argued on behalf of the petitioner that respondent no. 2
had earlier withdrawn a complaint which he had filed against three
accused persons in Saket Courts, Delhi with the liberty to approach
appropriate Court, and in these circumstances, Section 257 of Cr. P.C.
would come into picture which provides that if a complainant withdraws
his complaint against an accused, the Magistrate may permit him to do
so, thereby acquitting the accused. While opposing these arguments, it
was contended on behalf of respondent no. 2 that the previous
complaint qua the present petitioner, who was accused no. 3 therein,
was withdrawn with liberty to file a fresh in the Court having competent
jurisdiction to deal with cases pertaining to MPs/MLAs and the same
would not amount to an acquittal. In this regard, learned counsel for
respondent no. 2 had relied on the decision of this Court in case of
Satish Dayal Mathur (supra), wherein it was held as under:
“17. These observations in my view are very apposite in the facts
of the case on hand. Since the learned Additional Chief Metropolitan
Magistrate was of the view, though erroneously, that the entire
proceedings were illegal because of noncompliance with the
mandatory provisions of Section 200, he could not have in all
fairness to him passed an order of acquittal in terms of Section 257
the Code and this is what he precisely did. So applying the ratio of
the decisions adverted to above which has also been referred to by
th
both the courts below, the order dated 5 August 1983 of the
learned Additional Chief Metropolitan Magistrate in the previous
complaint cannot operate as an acquittal within the meaning of
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Section 257 so as to bar subsequent prosecution of the petitioner on

the same facts.”
26. This Court notes that in the present case, the respondent no. 2
herein had filed a complaint i.e. Ct. Cases 5786/2018, titled ‘Vikas
Sankritayan @ Vikas Pandey v. Dhruv Rathee’ on 04.07.2018 for
offence under Section 499/500 of IPC against three accused persons
i.e. Sh. Dhruv Rathee (the original author), one Sh. Mahavir Prasad
Khileri and Sh. Arvind Kejriwal i.e. the petitioner herein. On
18.10.2018, the complainant had tendered his pre-summoning
evidence, and on the same date, he had also given a statement before
the learned MM-01, South-East, Saket Court, Delhi that he wishes to
withdraw his complaint against accused no. 3 with liberty to file afresh
before the court of competent jurisdiction. This statement reads as
under:
“On SA
I wish to withdraw my complaint against alleged No. 3 Sh. Arvind
Kejriwal with liberty to file the same before the Court of competent
jurisdiction. I may be permitted for the same.
RO & AC”
27. Further, on the same day, the following order was passed by the
learned Magistrate:
“Complainant submits that he wishes to withdraw his complaint
qua alleged No. 3 Sh. Arvind Kejriwal with liberty to file fresh
complaint as per law in the court having competent jurisdiction.
Statement of the complainant is separately recorded to this effect
and name of alleged No. 3 is dropped accordingly.
Complainant is examined as CW1 and discharged.
Complainant seeks time to file the list of remaining witnesses and
for further pre summoning evidence. Heard. Allowed.
Be put up for further pre summoning…”
28. Thereafter, in the aforesaid complaint case, the learned
Magistrate had issued summons to the other two accused persons vide
order dated 23.07.2019.
29. It is, thus, noted that in the present case, the respondent no. 2
had withdrawn his earlier complaint i.e. Ct. Cases 5786/2018, only qua
accused no. 3, purely on the grounds of lack of jurisdiction of the
learned Magistrate in Saket Courts to adjudicate a case related to a
sitting MLA, who is also the Chief Minister of Delhi. In this regard, this
Court also takes note of the fact that pursuant to directions passed by
the Hon'ble Apex Court in case of Ashvini Kumar Upadhyay v. Union of
India W.P. (C) 699/2016, a notification no. 35/DHC/Gaz./G-1/VI.E.2
(a)/2018 dated 23.02.2018 was issued by this Court constituting
special Courts to deal with cases against sitting/former MPs/MLAs.
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30. As regards the argument regarding applicability of Section 257

of Cr. P.C., it is important to note that the case i.e. Ct. Cases
5786/2018, at the time when complaint qua petitioner herein was
withdrawn, was still at the stage of recording of pre-summoning
evidence. The petitioner i.e. accused was not before the Court
concerned, as he had not yet been summoned, and the learned
Magistrate had not applied his mind even to the material before him to
arrive at a finding as to whether the accused persons were required to
be summoned or not. Thus, the trial in that complaint case had not yet
begun, when the complaint was withdrawn. Having also gone through
the decision of this Court in case of Satish Dayal Mathur (supra), this
Court is of the opinion the learned MM-01, South-East, Saket Court,
Delhi did not have the jurisdiction to adjudicate complaint case
pertaining to the present petitioner, in view of Special Courts
constituted by this Court for the purpose of dealing with cases
pertaining to sitting/former MPs/MLAs. In view thereof, the learned
Magistrate himself did not pass any order of acquittal of the accused
no. 3 i.e. petitioner herein. Thus, this Court is of the opinion that such a
case would not be covered within the provisions of Section 257 of Cr.
P.C., which falls under Chapter XX i.e. ‘Trial of Summons-Cases By
Magistrates’. Even otherwise, as observed hereinabove, the case of the
complainant qua the present petitioner, being a sitting MLA, could not
have been dealt with by the Magistrate concerned.
II. THE OFFENCE OF DEFAMATION
31. As the present case revolves around the offence of defamation, it
shall be necessary to first examine and analyse the concept of
defamation and defamatory statements, essential ingredients to
constitute this offence under Section 499 of IPC and the judicial
precedents highlighting the role of courts while issuing summons to an
accused in a complaint filed for offence of defamation.
Meaning and Definition
32. According to Halsbury's Laws of England, Fourth Edition, Volume
28, the term ‘defamatory statement’ has been defined as “a statement
which tends to lower a person in the estimation of right thinking
members of the society generally or to cause him to be shunned or
avoided or to expose him to hatred, contempt or ridicule, or to convey
an imputation on him disparaging or injurious to him in his office,
profession, calling trade or business”.
th
33. The Black's Law Dictionary, 4 Ed., explains the meaning of
‘defamation’ as “the taking from one's reputation. The offense of
injuring a person's character, fame, or reputation by false and malicious
statements”.
th
34. In addition, P.H. Winfield in A Textbook of the Law of Tort, 5
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Ed. 1950, defines ‘defamation’ as “the publication of a statement which

tends to lower a person in the estimation of right-thinking members of
society generally; or which tends to make them shun or avoid that
person”.
th
35. As per R.F.V. Heuston, Salmond on the Law of Torts, 17 Ed.
1977, the wrong of defamation “consists in the publication of a false
and defamatory statement concerning another person without lawful
justification. That person must be in being. Hence not only does an
action of defamation not survive for or against the estate of a deceased
person, but a statement about a deceased or unborn person is not
actionable at the suit of his relatives, however great their pain and
distress, unless the statement is in some way defamatory of them”.
Provisions of Law
36. The offence of defamation has been defined under Section 499 of
IPC, which reads as under:
“499. Defamation.—Whoever, by words either spoken or intended
to be read, or by signs or by visible representations, makes or
publishes any imputation concerning any person intending to harm,
or knowing or having reason to believe that such imputation will
harm, the reputation of such person, is said, except in the cases
hereinafter excepted, to defame that person.
Explanation 1.—It may amount to defamation to impute anything
to a deceased person, if the imputation would harm the reputation of
that person if living, and is intended to be hurtful to the feelings of
his family or other near relatives.
Explanation 2.—It may amount to defamation to make an
imputation concerning a company or an association or collection of
persons as such.
Explanation 3.—An imputation in the form of an alternative or
expressed ironically, may amount to defamation.
Explanation 4.—No imputation is said to harm a person's
reputation, unless that imputation directly or indirectly, in the
estimation of others, lowers the moral or intellectual character of
that person, or lowers the character of that person in respect of his
caste or of his calling, or lowers the credit of that person, or causes it
to be believed that the body of that person is in a loathsome state,
or in a state generally considered as disgraceful.
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
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defamation to express in 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.
Fourth Exception.—Publication of reports of proceedings of courts.
—It is not defamation to publish substantially true report of the
proceedings of a Court of Justice, or of the result of any such
proceedings.
Explanation.—A Justice of the Peace or other officer holding an
enquiry in open Court preliminary to a trial in a Court of Justice, is a
Court within the meaning of the above section.
Fifth Exception.—Merits of case decided in Court or conduct of
witnesses and others concerned.—It is not defamation to express in
good faith any opinion whatever respecting the merits of any case,
civil or criminal, which has been decided by a Court of Justice, or
respecting the conduct of any person as a party, witness or agent, in
any such case, or respecting the character of such person, as far as
his character appears in that conduct, and no further.
Sixth Exception.—Merits of public performance.—It is not
defamation to express in good faith any opinion respecting the
merits of any performance which its author has submitted to the
judgment of the public, or respecting the character of the author so
far as his character appears in such performance, and no further.
Explanation.—A performance may be submitted to the judgment
of the public expressly or by acts on the part of the author which
imply such submission to the judgment of the public.
Seventh Exception.—Censure passed in good faith by person
having lawful authority over another.—It is not defamation in a
person having over another any authority, either conferred by law or
arising out of a lawful contract made with that other, to pass in good
faith any censure on the conduct of that other in matters to which
such lawful authority relates.
Eighth Exception.—Accusation preferred in good faith to
authorised person.—It is not defamation to prefer in good faith an
accusation against any person to any of those who have lawful
authority over that person with respect to the subject-matter of
accusation.
Ninth Exception.—Imputation made in good faith by person for
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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.
37. Section 500 of IPC, which provides for punishment for
defamation, reads as under:
“500. Whoever defames another shall be punished with simple
imprisonment for a term which may extend to two years, or with
fine, or with both.”
Essential Ingredients to Constitute Offence of Defamation
38. In case of Jeffrey J. Diermeier v. State of W.B., (2010) 6 SCC
243, the Hon'ble Apex Court had observed that to constitute
defamation under Section 499 of IPC, the following ingredients must be
fulfilled:
“29. To constitute “defamation” under Section 499 IPC, there
must be an imputation and such imputation must have been made
with the intention of harming or knowing or having reason to believe
that it will harm the reputation of the person about whom it is made.
In essence, the offence of defamation is the harm caused to the
reputation of a person. It would be sufficient to show that the
accused intended or knew or had reason to believe that the
imputation made by him would harm the reputation of the
complainant, irrespective of whether the complainant actually
suffered directly or indirectly from the imputation alleged.”
39. The Hon'ble Apex Court in case of Subramanian Swamy v. Union
of India, (2016) 7 SCC 221, while analysing the constitutionality of
offence of defamation, had also enumerated the essentials of Section
499 of IPC, which are as under:
“168. For the aforesaid purpose, it is imperative to analyse in
detail what constitutes the offence of “defamation” as provided
under Section 499 IPC. To constitute the offence, there has to be
imputation and it must have been made in the manner as provided
in the provision with the intention of causing harm or having reason
to believe that such imputation will harm the reputation of the
person about whom it is made. Causing harm to the reputation of a
person is the basis on which the offence is founded and mens rea is
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a condition precedent to constitute the said offence. The complainant

has to show that the accused had intended or known or had reason
to believe that the imputation made by him would harm the
reputation of the complainant. The criminal offence emphasises on
the intention or harm. Section 44 IPC defines “injury”. It denotes
any harm whatever illegally caused to any per-son, in body, mind,
reputation or property. Thus, the word “injury” encapsulates harm
caused to the reputation of any person. It also takes into account the
harm caused to a person's body and mind. Section 499 provides for
harm caused to the reputation of a person, that is, the complainant.”
40. The Hon'ble Apex Court in Google India Private Limited v.
Visakha Industries, (2020) 4 SCC 162 had also examined the
ingredients of Section 499 as well as the meaning of terms “making of
an imputation” and “publishing of an imputation”. The relevant
observations in this regard are reproduced hereunder:
“105. Under the said provision, the Law Giver has made the
making or publishing of any imputation with a requisite intention or
knowledge or reason to believe, as provided therein, that the
imputation will harm the reputation of any person, the essential
ingredients of the offence of defamation. What is the meaning to be
attached to the words “making of an imputation” and “publishing of
an imputation”? This question has been set out with clarity in a
recent judgment which is reported in Mohd. Abdulla Khan v. Prakash
K., (2018) 1 SCC 615. It was held as follows:
10. An analysis of the above reveals that to constitute an
offence of defamation it requires a person to make some
imputation concerning any other person;
(i) Such imputation must be made either
(a) With intention, or
(b) Knowledge, or
(c) Having a reason to believe
that such an imputation will harm the reputation of the
person against whom the imputation is made.
(ii) Imputation could be, by
(a) Words, either spoken or written, or
(b) By making signs, or
(c) Visible representations
(iii) Imputation could be either made or published.
The difference between making of an imputation and publishing
the same is:
If ‘X’ tells ‘Y’ that ‘Y’ is a criminal — ‘X’ makes an imputation.
If ‘X’ tells ‘Z’ that ‘Y’ is a criminal — ‘X’ publishes the imputation.
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The essence of publication in the context of Section 499 is

the communication of defamatory imputation to persons other
than the persons against whom the imputation is made.”
(Emphasis supplied)
41. Therefore, the essence of ‘publication’ of a content which is
defamatory in nature, for the purpose of applicability of Section 499 of
IPC, is the ‘communication’ of such defamatory content to persons
other than the person who is being defamed.
42. To reiterate once again, in today's world, when the law with
regard to posting of a defamatory content by way of re-tweeting or
reposting is still not settled and is evolving, the Court has to adjudicate
a case on the basis of test of a reasonable common man and the social
background of the parties concerned alongwith the relevant facts and
circumstances of the case which will become the edifice of finding for
the purpose of evolving jurisprudence in the field of law, not yet
effectively treaded or adjudicated upon.
Issuance of Process/Summons vis-a-vis Offence of Defamation :
Material Considerations
43. The Hon'ble Apex Court in the case of Iveco Magirus
Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya, 2023 SCC OnLine
SC 1258, after considering several judicial precedents, had made the
following observations on the issue of summoning an accused for an
offence of defamation:
“44. Thus, when a Magistrate taking cognisance of an
offence proceeds Under Section 200 based on a prima facie
satisfaction that a criminal offence is made out, he is required
to satisfy himself by looking into the allegations levelled in
the complaint, the statements made by the complainant in
support of the complaint, the documentary evidence in
support of the allegations, if any, produced by him as well as
statements of any witness the complainant may choose to
produce to stand by the allegations in the complaint. Although
we are not concerned with Section 202 here, if an inquiry or an
investigation is conducted thereunder, it goes without saying that
the reports should also be looked into by the Magistrate before
issuing process Under Section 204. However, there can be no
gainsaying that at the stage the Magistrate decides to pass an order
summoning the Accused, examination of the nature referred to
above ought not to be intended for forming an opinion as to whether
the materials are sufficient for a ‘conviction’; instead, he is required
to form an opinion whether the materials are sufficient for
‘proceeding’ as the title of the relevant chapter would indicate. Since
the Accused does not enter the arena at that stage, question of the
Accused raising a defence to thwart issuance of process does not
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arise. Nonetheless, the fact that the Accused is not before the
Magistrate does not mean that the Magistrate need not apply his
judicial mind. Nothing in the applicable law prevents the Magistrate
from applying his judicial mind to other provisions of law and to
ascertain whether, prima facie, an “offence”, as defined in Section 2
(n) of the Code of Criminal Procedure is made out. Without such
opinion being formed, question of “proceeding” as in Section 204
does not arise. What the law imposes on the Magistrate as a
requirement is that he is bound to consider only such of the
materials that are brought before him in terms of Sections 200 and
202 as well as any applicable provision of a statute, and what is
imposed as a restriction by law on him is that he is precluded from
considering any material not brought on the record in a manner
permitted by the legal process. As a logical corollary to the above
proposition, what follows is that the Magistrate while deciding
whether to issue process is entitled to form a view looking into the
materials before him. If, however, such materials themselves
disclose a complete defence under any of the Exceptions, nothing
prevents the Magistrate upon application of judicial mind to accord
the benefit of such Exception to prevent a frivolous complaint from
triggering an unnecessary trial. Since initiation of prosecution is a
serious matter, we are minded to say that it would be the duty of the
Magistrate to prevent false and frivolous complaints eating up
precious judicial time. If the complaint warrants dismissal, the
Magistrate is statutorily mandated to record his brief reasons. On the
contrary, if from such materials a prima facie satisfaction is
reached upon application of judicial mind of an “offence”
having been committed and there being sufficient ground for
proceeding, the Magistrate is under no other fetter from
issuing process. Upon a prima facie case being made out and even
though much can be said on both sides, the Magistrate would have
no option but to commit an Accused for trial, as held in Chandra Deo
Singh (supra) ……
45. In the context of a complaint of defamation, at the
stage the Magistrate proceeds to issue process, he has to form
his opinion based on the allegations in the complaint and
other material (obtained through the process referred to in
Section 200/Section 202) as to whether ‘sufficient ground for
proceeding’ exists as distinguished from ‘sufficient ground for
conviction’, which has to be left for determination at the trial
and not at the stage when process is issued. Although there is
nothing in the law which in express terms mandates the Magistrate
to consider whether any of the Exceptions to Section 499, Penal
Code, 1860 is attracted, there is no bar either. After all, what is
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‘excepted’ cannot amount to defamation on the very terms of the

provision. We do realize that more often than not, it would be
difficult to form an opinion that an Exception is attracted at
that juncture because neither a complaint for defamation
(which is not a regular phenomenon in the criminal courts) is
likely to be drafted with contents, nor are statements likely to
be made on oath and evidence adduced, giving an escape
route to the Accused at the threshold. However, we hasten to
reiterate that it is not the law that the Magistrate is in any manner
precluded from considering if at all any of the Exceptions is attracted
in a given case; the Magistrate is under no fetter from so
considering, more so because being someone who is legally trained,
it is expected that while issuing process he would have a clear idea
of what constitutes defamation. If, in the unlikely event, the
contents of the complaint and the supporting statements on oath as
well as reports of investigation/inquiry reveal a complete defence
under any of the Exceptions to Section 499, Penal Code, 1860, the
Magistrate, upon due application of judicial mind, would be justified
to dismiss the complaint on such ground and it would not amount to
an act in excess of jurisdiction if such dismissal has the support of
reasons.”
III. BALANCING CRITICAL YET COMPETING INTERESTS : FREEDOM OF
SPEECH & EXPRESSION v. PROTECTING A PERSON FROM
REPUTATIONAL INJURY
44. Reputation is a form of honor and honor has many aspects.
The recognition of reputation as a significant social asset is
fundamental, and the Courts play an important role in ensuring
equal protection to every individual, regardless of their standing
in society.
45. By analysing the limited sphere of jurisprudence evolved till date
regarding ‘retweet’ or ‘repost’ being covered under meaning of
‘publication’, this Court would note that the law on defamation on
the one hand protects one person's reputation who is the
complainant and one person's fundamental right who has been
alleged to be an accused to freedom of expression. Freedom of
expression and the use of cyberspace and social media for the said
purpose, especially by persons who hold positions of authority and have
huge following on their social media accounts, needs to be kept in mind
while balancing the contrasting approaches to be adopted towards
both the parties, when they come to a Court to determine their rights.
46. In addressing a democratic community, it is crucial to
emphasize that freedom of speech, while a fundamental right,
does not grant individuals the license to inflict harm or tarnish
the reputation of others. This distinction becomes particularly
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pertinent when grappling with the court's dilemma of striking a

balance between the cherished value of free expression and the
equally essential need to protect an individual's reputation.
47. Thus, a Court, while weighing the value of reputation of one
party and freedom of expression of the other, has to keep in mind that
in a democratic setup, a person who is complainant in such cases may
be vulnerable in a given set of circumstances in face of his
competing interest with that of the accused. The principle of equal
protection under the law mandates that the courts consider the plight
of every individual, regardless of their societal status. In rendering
equal protection, the court must balance the right of free speech
with the need to prevent unjust harm to reputation. The
injurious falsehood of a statement will definitely invite
defamation and loss of reputation.
48. Whether a person has achieved great heights in society, or
finds himself marginalised considering himself as the last and
least in terms of access to Court of law to fight for safeguarding
his reputation, their right to fair treatment and protection from
unwarranted harm remains paramount before any Court of law
while adjudicating. This approach and duty becomes more
critical when the complainant may be pitted against a person
who may have more power, influence and followers.
IV. MEETING THE CHALLENGE OF ADJUDICATING GREY AREA OF
LAW NOT YET EFFECTIVELY ADJUDICATED UPON : LAYING
FOUNDATION STONE OF JURISPRUDENCE
49. The evolution of technology and all pervasive influence of social
media have transformed the landscape through which reputational
harm can occur. As communication has shifted from traditional forms of
speech to the digital space, the law must adapt to effectively
addressing the new weapons of harm to reputation, particularly in the
context of posts and reposts on social media platforms. Unlike private
conversations, digital content posted and reposted on social media has
the potential for immediate and widespread dissemination. The virality
and permanence of online content amplifies its impact, making it a tool
for causing reputational harm.
50. The use of cyberspace, as in the present case - the social media
platform of Twitter (now ‘X’), has seen rapid development. The users of
cyberspace, for the purpose of posting their content even by way of re-
tweeting, should remain conscious of a keen sense of danger in this
new technological method of spreading information and ideas. The
content shared at such platforms spreads rapidly, and any
content involving the reputation of a person will attract
considerable harm in case he is negatively portrayed on the basis
of a content which is scandalous or indictable.
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51. Twitter (now ‘X’), as a platform, serves as a megaphone that

amplifies messages and broadcasts them to an extensive audience. It
provides the ability to communicate with millions of people at the
stroke of a button. The immediacy and accessibility of social media
means that defamatory statements disseminated through tweets can
rapidly reach individuals worldwide. The audience includes not only
followers of the public figure but also anyone who has access to the
social media platform and who may come across or be exposed to the
tweet. Words which are posted, which may be these days in the form of
a video also, will amount to publication and will be actionable in case it
contains defamatory content or malice. Needless to say, the extensive
circulation of such content in public can cause considerable injury to a
person's reputation. Such written and posted content has the inherent
quality of being permanent by virtue of the fact that a man's reputation
suffers while the video remains available on the public platform and in
the cyber space.
52. The number of followers or the reach of an individual's online
presence can significantly magnify the impact of a post or repost. As a
result, the law needs to evolve to navigate the complexities of this
digital era. The concept of publication, traditionally associated
with printed materials, must be re-examined in the context of
virtual platforms where information can reach a vast audience in
seconds. Moreover, the legal system should be attuned to the
dynamics of social media influence.
Pace of Spread of Scandalous Content : From the Echo of
Whispers in Pre-Digital Era compared to the Spread at Lightning
Speed of Digital Dissemination in Digital Era
53. While deciding such cases, the Courts have to realize that in this
advanced age of technology, the content of defamation which is
scandalous in nature, spreads like a wildfire, leading to instant
injury to reputation of a person by sheer extent of its reach to millions
within minutes and is not like whispered scandal of the previous past.
54. In other words, when a public figure tweets a defamatory
post, the ramifications extend far beyond a mere whisper in
someone's ears. In social media, where information travels at
lightning speed and has the potential to reach a global audience, the
act of tweeting transforms the communication into a form of public
publication. The audience, in this context, is not restricted to those
physically present or within immediate earshot but encompasses the
vast and diverse online community. In the digital age, the
boundaries of ‘publication’ have expanded, and the implications
of defamation are heightened due to the potential of widespread
dissemination.
55. The force of causing injury to reputation in virtual realms
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can be particularly potent, with the impact transcending physical

boundaries and reaching a global audience. The virtual space
provides a platform where individuals, especially those with significant
influence, can disseminate information rapidly, leading to swift and
widespread consequences for a person's reputation.
56. The force of a virtual blow is often exemplified by the
sheer number of followers an individual commands on digital
platforms. The larger the following, the greater the potential reach and
influence of their virtual actions. In the virtual realm, a damaging
statement or action can reverberate across social media, online forums,
and other digital spaces, magnifying its impact on the targeted
individual's reputation.
57. Unlike physical injury, which may be localized and limited
in scope, virtual injury can have far-reaching and long-lasting
effects. The force of a virtual blow is intricately tied to the
dynamics of online engagement, where the virality and
permanence of digital content contribute to the enduring nature
of reputational harm.
58. Recognizing and addressing virtual injury requires an
understanding of the power dynamics inherent in the digital landscape.
Legal frameworks and societal norms must adapt to consider the
implications of reputational harm inflicted through virtual modes,
acknowledging the influence exerted by individuals with substantial
online followings.
V. ‘RETWEETING’ A DEFAMATORY IMPUTATION WILL AMOUNT
TO ‘PUBLICATION’ FOR THE PURPOSE OF APPLICABILITY OF
SECTION 499 OF IPC
59. When a person makes a smart move to dodge law, the
Courts and the laws have to be smarter to catch that smartness.
Courts play a pivotal role in this process, acting as the vanguards of
justice. They must not only interpret the law but also possess the
foresight to anticipate evolving strategies aimed at
circumventing legal consequences.
60. It has to be noted that a person retweeting a defamatory
content, which has the potential of causing reputational injury to a
person, cannot wriggle out of his responsibility by merely contending
that it was a retweet and not the original tweet. Accepting this view as
canvassed by the petitioner would amount to permitting people to
retweet any objectionable or defamatory content in cyberspace and
social media platforms, without any responsibility being attached to
their act of posting such content on social media even if the content
has the potential to cause reputational injury to another.
61. The retweeting of the content in the present case which was
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originally created by some other person who did not have as much
public following as the present petitioner, by virtue of the petitioner
retweeting that content, represented to the public at large that he
believed the content created by another person to be true. It has to be
held so since the general public would ordinarily believe that the person
retweeting such content on his own Twitter account, must have
understood, verified and believed the content to be true. The critical
issue to be taken note of in such circumstances is the fact that the
petitioner who retweeted the content had much larger following than
the original content creator, thus, having multiplied potential of
spreading the defamatory content to a much larger audience.
62. The freedom of expression is essential in a democratic
setup to spread one's opinion, however, it cannot extend to the
extent of affecting the right of the people not to be defamed.
63. In case, the act of retweeting or reposting is allowed to be
misused since it is still considered to be a vacant grey area of
law where the sapling of jurisprudence as to whether retweeting
defamatory content will be considered publication or not is yet
to take place, it will encourage people with ill intentions to
misuse this vacant field of law and therefore, despite retweeting
the defamatory content, the accused can thereafter conveniently
take a plea that he had merely retweeted a content.
64. In this background, this Court holds that retweeting or reposting
defamatory content, without any disclaimer as to whether the person
so retweeting agrees or disagrees or has verified the content so posted
or not, and as to whether he projected to the world at large, who care
to follow him, that he believes the content to be true so shared, a
person would be republishing the original defamatory content which
has the potential of lowering the moral or intellectual character or credit
of a person.
65. A sense of responsibility has to be attached while retweeting
content about which one does not have knowledge. Since in case
reputational injury is caused by defaming a person, the person doing so
by retweeting must attract penal, civil or tort action against him in
absence of any disclaimer.
66. If we assume that the law exclusively attributes harm to the
original author of a post in cases of defamation, a potential loophole
emerges. Any case has to be adjudicated in its accompanying
circumstances and the background of not only the facts but the actors
of the act in question. When a vast majority follows a particular person
on twitter, not all, may be aware of the nitty gritties of tweets or
retweets. Most common persons who follow a person, who may be an
influencer for a particular segment of community will find it enough
reason to believe a content just because the content is posted on
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account of a particular person.

67. This Court, while trying to lay down foundational stone on
jurisprudence of retweeting, and whether it amounts to publication
or not for the purpose of Section 499 of IPC, presents the following
scenario to explain the reasons weighing in this Court's mind as to why
this Court holds that retweeting amounts to publication for the purpose
of Section 499 of IPC:
Consider an individual, Z, who commands a specific group of
followers, who regularly engage with his tweets. Z could potentially
evade legal repercussions by instructing one of his followers to post
defamatory content or by creating a fake account for the same
purpose. Subsequently, the content is re-posted on Z's account,
garnering a substantial audience. In such a scenario, the crux of the
concern lies in the fact that if the law only holds the original author
accountable, it creates an avenue for individuals like Z to escape the
clutches of law. Despite being the one actively disseminating the
defamatory material on his account, Z might escape punishment if
the focus is solely on the initial creator of the content. If the law fails
to address situations where the true culprit is the one amplifying and
re-posting defamatory content, it undermines the very purpose of
defamation laws that is to protect individuals from false and
damaging statements.
68. Therefore, this Court is of the view that rigours of Section 499
of IPC will be attracted prima facie in case a person will
retweet/repost the alleged defamatory remarks or content, for
the purpose of the general public to see, appreciate and believe.
69. This can also be explained by way of following illustrations,
which weigh in the mind of this Court and have been purely created by
this Court for the purpose of explanation, which are not exhaustive but
suggestive in nature:
Illustrations By This Court
(a) B posts defamatory content about Z on his social media account.
A, reposts the defamatory content, disseminating it to a larger
audience. The act of both A and B is defamation, unless it falls
within one of the exceptions or A posts a disclaimer in the repost
that the content has not been verified regarding its
correctness/genuineness.
(b) B, a well-known influencer, shares a false accusation against Z
on her blog. A, a follower, reblogs the content, amplifying its
reach. A’s and B’s act constitutes defamation, unless it falls within
one of the exceptions, or A posts a disclaimer in the retweet that
the content has not been verified regarding its
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(c) B tweets derogatory statements about Z, a public figure. A,

another user, retweets B's content, making it visible to a broader
audience. A’s and B’s action is defamation, unless it falls within
one of the exceptions or A posts a disclaimer in the retweet that
(d) B publishes a misleading article about Z on an online forum. A, a
forum member, reposts the article, contributing to its wider
circulation. A’s and B’s action is defamation, unless it falls within
one of the exceptions or A posts a disclaimer in the repost that
(e) B uploads an edited video falsely portraying Z engaging in
inappropriate behavior. A, a subscriber, shares the same video on
a video-sharing platform, expanding its viewership. A’s and B’s
action is defamation, unless it falls within one of the exceptions or
A posts a disclaimer while sharing the video that the content has
not been verified regarding its correctness/genuineness.
VI. REACH & INFLUENCE OF THE PERSON RETWEETING
DEFAMATORY CONTENT
70. The assertion that the petitioner simply retweeted defamatory
content without any intention to harm the reputation of the respondent
no. 2 raises a complex legal issue, especially considering the political
standing and maturity of the petitioner, who also holds the position
of Chief Minister of the State of Delhi.
71. The background of the petitioner, being a Chief Minister,
necessitates an acknowledgment of the inherent sense of
responsibility that comes with such a significant political role. As
a leader with political standing and maturity, the petitioner is
presumed to be aware of the potential impact of his actions,
including retweets, on the public perception. When a public
figure, particularly one with a political standing, tweets or
retweets a defamatory post, the stakes and repercussions
escalate given the broader implications on society. The audience,
therefore, becomes the citizenry at large, whose opinions and
decisions may be influenced by the information they consume,
including defamatory statements published on social media.
72. In other words, the argument of mere retweeting without
harmful intent has to be weighed against a public figure's duty to
exercise due diligence and care in disseminating information on social
media platforms.
73. Where millions of people follow a particular person such
as the petitioner herein on social media platforms such as
Twitter (now ‘X’), anything which is posted by the petitioner on
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his account is for public notice i.e. notice for all the people who
care to follow him.
VII. WILL EVERY ‘RETWEET’ ATTRACT ACTION UNDER SECTION
499 OF IPC?
74. Let us consider a scenario where an original author ‘Z’ posts
defamatory content against ‘Y’ on his Twitter (now ‘X’) account. The
same is retweeted by thousands of users on their profiles. However,
interestingly, one such retweet is from a public figure or influencer with
over 10 million followers, whereas the rest of retweets are from those
who do not command such levels of popularity. Now, would every such
person who retweets the defamatory content, be liable to face action for
defamation?
75. In this Court's opinion, while all acts of ‘retweeting’ may amount
to ‘publication’ of defamatory imputation, the extent of harm caused to
the reputation of the aggrieved person would depend on the level of
influence and the potential reach of the individual who retweets such
defamatory imputation.
76. To illustrate, the reputational harm caused by virtue of
retweeting defamatory content, by a person with a mere 10 followers,
in contrast to another individual with a substantial following of over 10
million, would be undoubtedly different. The gravity of the situation
would also differ substantially in such cases especially in view of
explanation 4 of Section 499 of IPC which clearly provides that for an
imputation to be defamatory in nature so as to harm's one reputation,
it must inter alia directly or indirectly, in the estimation of others,
lowers the moral or intellectual character or credit of the person
who is being defamed.
77. Therefore, the social media reach as well as the social and
political standing of the person, retweeting the defamatory imputation,
is of great relevance. If a public figure with a millions of followers
retweets any defamatory content, the impact on the aggrieved person's
reputation and his character will be much greater, since the larger
audience and the influence wielded by a public figure would amplify the
spread and longevity of the defamatory content. Such a person's
influence may also make his audience believe the defamatory content
to be true, thereby lowering the reputation of the aggrieved person.
78. Conversely, if a defamatory imputation is retweeted by an
individual with negligible followers or very limited influence, the
impact on the complainant's reputation may be less severe or may not
even be of a nature to fall within the ambit of offence of defamation,
since the limited or negligible reach of such a person would reduce the
potential for the defamatory content to gain any significance among the
right thinking members of the society, this of course, would be a matter
-----------------------------------------------------------------------------------------------------------------------------------------------------------
of trial as to whether a person's retweet of defamatory content, with

following of ten persons or zero persons would be sufficient to attract
action under Section 499 of IPC.
79. If one analyses the facts of the present case in light of aforesaid
observations, it is to be noted that in this case also, the respondent no.
2 had examined two witnesses at the pre-summoning stage who had
deposed that they followed the present petitioner on Twitter, and they
had seen the YouTube video which the petitioner had retweeted on his
Twitter account, and after hearing the allegations contained in that
video against the respondent no. 2 herein, they had immediately called
respondent no. 2 to express their dismay.
80. Certainly, the harm inflicted upon the reputation of respondent
no. 2, as claimed, by the actions of the petitioner herein, who not only
commands a substantial social media following but also holds the
position of the Chief Minister of Delhi, would be exponentially more
than that resulting from thousands of retweets by other social media
users. Thus, the petitioner herein cannot take a defence that the
complainant had chosen only to prosecute him for retweeting the
alleged defamatory imputation, even though several other thousands of
social media users had retweeted the same original tweet containing
hyperlink/URL of defamatory video.
81. Therefore, though every ‘retweet’ of defamatory imputation
would ordinarily amount to ‘publication’ under Section 499 of
IPC, it is ultimately for the person so aggrieved to decide as to
which retweet caused more harm to his reputation, and inter alia
lowered his moral or intellectual character or his credibility
among the members of society. This also will be decided by the
learned Trial Court on the basis of material before it as to whether the
retweet with its accompanying circumstances had the potential to
defame the complainant concerned.
VIII. WHETHER PETITIONER IS LIABLE TO BE SUMMONED FOR
HIS ACT OF RETWEETING THE ALLEGEDLY DEFAMATORY
CONTENT?
82. In the present case, the petitioner had retweeted the original
tweet of Sh. Dhruv Rathee, and the said retweet contained the
embedded hyperlink/URL to the allegedly defamatory video which had
been uploaded on the YouTube channel owned and run by Sh. Dhruv
Rathee.
83. While the petitioner may plead absence of any malicious
intent in the act of retweeting, the Court has to consider the
responsibility that accompanies the petitioner's political and
social standing. Needless to say, the large social media following
of a Chief Minister of a State undoubtedly implies a wider reach,
making any retweet, a form of public endorsement or
-----------------------------------------------------------------------------------------------------------------------------------------------------------
acknowledgment.
84. When a political person of such standing or a public figure or a
social influencer, posts some content on his social media account, it
can be reasonably believed by the Court while adjudicating such cases,
at the initial stage of a case where summoning is in question, that he
did understand the repercussions and implications of posting such
content and the corresponding harm it can cause to the person
aggrieved. In this Court's opinion, the online interactions and
engagement on Twitter, which involves publication of defamatory
statements and content, and sharing such content with others by
retweeting will surely attract liability since it would amount to posting
defamatory content as one's own by believing it to be true and thus,
sharing it with the public at large.
85. The original author of the alleged defamatory content will also be
liable for any action if a complaint is filed against him. However, it is
the choice of the complainant, who may decide as to whether the
person who retweeted such content had caused him more damage or
not, since he had more friends or followers, by sharing a content.
86. In the present case, the defamatory video in question, posted by
Sh. Dhruv Rathee and retweeted by the petitioner herein, was aimed at
‘exposing’ the IT Cell of BJP and as alleged in the video, the respondent
no. 2 was the ‘second-in-command’ of the IT Cell of BJP and was
offering bribes for the purpose of defaming Sh. Dhruv Rathee. Taking
note of the same, the argument that the petitioner was not aware that
the contents of the material retweeted by him would cause harm to the
reputation of the respondent no. 2 cannot be appreciated at the stage
of summoning itself, since the adjudication with regard to
determination of whether the petitioner herein had acted responsibly or
not, and whether as a political person of a long standing, he could have
had the knowledge that the content being posted by him would cause
defamation or reputational injury to the respondent, is a matter of trial.
87. Further if, the petitioner herein wants to justify his act by any of
the defences or exceptions, it can be done only at an appropriate stage
of trial and not when he has just received summons and where prima
facie, the case does not fall under any of the exceptions of Section 499
of IPC. Also, the question regarding an intentional injury or
unintentional injury to a complainant's reputation by an accused can
only be decided during the course of trial by leading evidence by both
the parties. To prove actual defamatory injury by impairment of
reputation cannot be decided at the threshold of summoning, when
only a prima facie view of the matter is to be taken by the learned
Magistrate.
88. The original author of the defamatory content i.e. Sh. Dhruv
Rathee alongwith another accused i.e. Sh. Mahavir Prashad are already
-----------------------------------------------------------------------------------------------------------------------------------------------------------
accused in Ct. Cases 5786/2018, which is pending trial before the

learned MM-01, South-East, Saket Court, Delhi.
89. Further, whether it was his duty or not, as a political person of
long standing, to have taken some steps to verify the story or
allegations against the respondent before posting it on social media,
which would make an impact on a huge section of society and
corresponding effect on the reputation of the person concerned who is
at the centre stage of the defamatory content, will also be considered
during the course of trial.
90. Whether the impugned publication and the alleged
defamatory content will help the petitioner as a political person
or not, is not in this Court's domain to go into, at this stage.
Thus, regardless of whether posting such content or filing a
defamation case serves the interests of the petitioner or the
respondent in gaining political mileage, this Court must
adjudicate a criminal matter solely based on the legal provisions
outlined in the relevant sections of criminal law and in
accordance with established judicial precedents. The decision
should be made without any consideration of personal agendas
or the potential impact or implications on the political landscape
at the threshold of journey of a case i.e. summoning on the basis
of adequate material on record.
91. The present case is still at the stage of the accused having been
summoned. He has challenged the issuance of summons and the
summoning order and has raised the issues of illegality in issuance of
summons which have been adjudicated upon by this Court in the
preceding paragraphs. The issues have been decided against the
petitioner herein. Resultantly, this Court finds no reason to interfere
with the order of summoning passed by the learned Trial Court. The
petitioner herein will have opportunity to raise contentions before the
learned Trial Court during the course of trial which will be decided as
per law, including the issue as to whether for the purpose of trial case
under Section 499 of IPC is made out or not. At this stage, there was
sufficient material before the Court concerned to summon the petitioner
under Section 499 of IPC.
92. It is for the Trial Court Judge to determine at a pre-summoning
stage what is capable of being defamatory for the purpose of
summoning. Whether the content has been proved to be defamatory or
not is a matter of trial.
CONCLUSION
93. At times, it is difficult to erase the reputational injury from
public memory, as the tweets may be deleted but perceptions
are difficult to be deleted from the minds of the community.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
94. This Court, thus, for the purpose of adjudicating the present
case, holds that retweeting a content, which is allegedly defamatory, on
the Twitter account and projecting it to be as if his own views, will
prima facie attract the liability under Section 499 of IPC, for the
purpose of issuance of summons.
95. Therefore, this Court finds no infirmity with the impugned orders
passed by the learned Trial Court as well as learned Sessions Court.
96. Accordingly, the present petition stands dismissed.
97. It is, however, clarified that the observations made hereinabove
qua the present complaint case are solely for the purpose of deciding
the instant petition challenging the summoning orders, and the same
shall not be construed as opinion of this Court on the merits of the
case, which will be adjudicated upon during the course of trial.
98. The judgment be uploaded on the website forthwith.
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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Monday, September 02, 2024

2024 SCC OnLine Del 719 : (2024) 307 DLT 226

In the High Court of Delhi at New Delhi

Arvind Kejriwal … Petitioner;

Material Considerations …………………………………………………………………….

jurisprudence of defamation, in the light of the evolution of cyberspace,

9. On 28.02.2019, a complaint was filed by the

popular social media page “I SUPPORT NARENDRA MODI”, and that it

national and international level.

the reputation of the person concerned. It is submitted by learned

Therefore, in view of these submissions, learned Senior Counsel prays

to be defamatory if they do not fall within any of the statutory

question of facts which can be decided at the trial. What is the

Section 257 so as to bar subsequent prosecution of the petitioner on

30. As regards the argument regarding applicability of Section 257

Ed. 1950, defines ‘defamation’ as “the publication of a statement which

defamation to express in good faith any opinion whatever respecting

protection of his or other's interests.—It is not defamation to make

a condition precedent to constitute the said offence. The complainant

The essence of publication in the context of Section 499 is

‘excepted’ cannot amount to defamation on the very terms of the

pertinent when grappling with the court's dilemma of striking a

51. Twitter (now ‘X’), as a platform, serves as a megaphone that

can be particularly potent, with the impact transcending physical

account of a particular person.

(c) B tweets derogatory statements about Z, a public figure. A,

of trial as to whether a person's retweet of defamatory content, with

accused in Ct. Cases 5786/2018, which is pending trial before the

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