The apex court said “prima facie the procedure of taking cognizance by the judicial magistrate is erroneous” as police has no role in a private criminal defamation case and it can not register an FIR.
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Gandhi, who was charged with defamation over his statement, accusing the RSS of the assassination of Mahatma Gandhi, had earlier urged the apex court to quash the case against him.
Significantly, Swamy’s move to raise Gandhi’s assassination comes against the backdrop of the Supreme Court warning Congress leader Rahul Gandhi on his RSS-Mahatma Gandhi remark.
The question arose as the local magistrate had referred the complaint against Rahul to the police to investigate.
The apex court also said after its judgment in Bharatiya Janata Party (BJP) leader Subramanian Swamy’s case, where the criminal defamation was upheld, the police have no authority to conduct an investigation. It can not lodge an FIR and a Magistrate can not seek a inquiry report from police under sections 156 (3) and 202 of the Code of Criminal Procedure. It observed that the magistrate “abdicated” his duty by not carrying out the inquiry himself.
It also prima facie found fault with the order of the Maharashtra lower court asking the police to inquire into the allegations against Gandhi and said that instead of “quashing” the case, it may “remand” the matter back to the lower court. The hearing was deferred to August 23.
Rajesh Kunte, the secretary of Bhiwandi unit of RSS, had alleged that Rahul at an election rally blamed the RSS for Gandhi’s death.
On May 7 past year, the apex court had stayed the proceedings against the Congress vice-president, pending before a magisterial court in Bhiwandi of Maharashtra’s Thane district.
“Criminal defamation has its own limitation”.
Pointing to Additional Solicitor General Tushar Mehta, appearing for Maharshtra, in court, Mr. Sibal asked: “How does the State come into the picture here? It is a private complaint”. In cases of defamation, the allegations are to be proven on the basis of the evidence provided by the complainant and the police will have no role in it.
At the fag end of the hearing, the court made it clear thatthe proceedings before the trial court would remain adjourned.
As Congress members protested that no names be taken, Swamy replied: “I will only name Mahatma Gandhi”.
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Kunte had alleged that the Congress leader had sought to tarnish the reputation of the Sangh through his speech.
