No restraint can be made on free communication during the process of election, the Delhi High Court has said while refusing to bar a person from circulating messages on a social networking platform against a candidate contesting the upcoming assembly polls.
Justice Rajiv Sahai Endlaw refused to pass an ex-parte order to direct a national daily and Internet giant Google to take down alleged defamatory content relating to the candidate from its electronic platform.
The court was hearing a plea by a BJP leader, who is contesting in the upcoming Delhi Legislative Assembly election to be held on February 8, seeking to restrain the newspaper, Google and others from publishing or disseminating the alleged defamatory material against him.
His counsel contended that a WhatsApp sender be restrained from circulating messages to the effect that the candidate was accused of the offence of rape, as he has been discharged of the charge by a court here.
The high court said though the candidate has been discharged of the offence of rape, he is still accused of the offences under Section 354 (molestation), 354A (sexual harassment), B (use of criminal force to woman with intent to disrobe) and D (stalking), 201 (destruction of evidence), 506 (criminal intimidation) IPC and Section 67 (punishment for publishing or transmitting obscene material in electronic form) of the Information Technology Act under which also the FIR has been registered.
"The court certainly cannot by its order, direct the allegedly defamatory material to be so dissected," it said.
"It has been held that during election and campaigning for elections, a lot of claims and speeches are made and at least the candidates contesting the election cannot be bound by the promises made by them to the electorate and on the same parity, I feel that any restraint on free communication during the process of election is not envisaged under the law relating to elections," the judge said.
The court issued summons to the parties on the suit and listed it for further hearing on February 19.
The candidate has filed a suit in the court seeking direction to the newspaper to take down the offending article, published in 2015, stating that he was accused of molesting and sexually assaulting a woman.
The plea said once he has been discharged of the charge of rape, the content on the website of the newspaper to the effect that he had been booked under Section 376 of the IPC, is ex-facie defamatory of him and affects his chances in the ensuing election.
The candidate's counsel contended that since the content of the news item also contained information which is not correct as of today, it is liable to be removed in entirety.
The judge, however, said, "I am unable to agree, it is up to the plaintiff to inform its electorate that he has been discharged of the offence under Section 376 IPC."
The court said it cannot be lost sight of the fact that the offences of molestation, sexual harassment, use of criminal force to woman with intent to disrobe and stalking of which he is still accused, are allied to the offence of rape for which he has been discharged.
And the impact of other offences, of which he is still accused, on the public is likely to be the same as of offence of which he is discharged. Thus, no case is made out for grant of ex parte order, the court said.
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