Delhi High Court
Rakesh Jagdish Kalra @ Rakesh Kalra vs The India Today Group & Ors. on 22 July, 2024
$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 22.07.2024
+ CS(OS) 560/2024
RAKESH JAGDISH KALRA @ RAKESH KALRA .....Plaintiff
Through: Mr. Sri Ram Verma and Mr. Sanjeev
Babbar, Advocates
versus
THE INDIA TODAY GROUP & ORS. .....Defendants
Through: Mr. Rishi K. Awasthi, Mr. Rahul
Mishra, Mr. Abhigyat Chatanya and
Mr. Jasmeet Singh Bindra, Advocates
for D-2
CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J. (ORAL)
I.A. 33710/2024 (exemption)
1. Allowed, subject to all just exceptions.
CS(OS) 560/2024
2. The plaint be registered as a suit.
3. On filing of process fee, summons be issued to the defendants by all
permissible modes.
4. Mr. Rishi K. Awasthi, learned counsel for the defendant no.2
appearing on advance service accepts summons and waives issuance of
formal summons to defendant no. 2. He submits that the defendant no. 2 has
received a copy of the plaint, IAs and documents. Let written statement be
filed by the defendant no. 2 within thirty days.
5. The summons to other defendants shall indicate that written
statements must be filed within thirty days from the date of receipt of
summons. The defendants shall also file an affidavit of admission/denial of
the documents filed by the plaintiff, failing which the written statements
shall not be taken on record.
6. The plaintiff is at liberty to file replication thereto within thirty days
after filing of the written statements. The replication shall be accompanied
by affidavit of admission/denial in respect of the documents filed by the
defendants, failing which the replication shall not be taken on record.
7. It is made clear that any unjustified denial of documents may lead to
an order of costs against the concerned party.
8. Any party seeking inspection of documents may do so in accordance
with the Delhi High Court (Original Side) Rules, 2018.
9. List before the learned Joint Registrar for completion of service,
pleadings, admission/denial of documents and marking of exhibits on
27.09.2024.
10. List before the Court after completion of pleadings 29.10.2024.
I.A. 33709/2024(u/O.XXXIX R.1&2 CPC)
11. This is an application filed by the plaintiff under Order XXXIX Rules
1 and 2 read with Section 151 CPC seeking grant of ad-interim ex parte
injunction.
12. Issue notice.
13. The learned counsel for the defendant no.2 who appears on advance
service accepts notice. Let notice be issued to other defendants by all
permissible modes.
14. This is a suit for permanent and mandatory injunction and damages.
The pleaded case of the plaintiff is that plaintiff was falsely implicated in a
case under Sections 176/201/202/336/334 of IPC and Sections 3 & 25 of the
Arms Act, which was registered in Mumbai on 24.06.2018.
15. Learned counsel appearing on behalf of the plaintiff invites the
attention of the Court to the judgment dated 15.10.2019 passed by the
learned Metropolitan Magistrate, 66th Court, Andheri, Mumbai, to contend
that the plaintiff was acquitted after full dressed trial on the ground that the
prosecution failed to prove the guilt of plaintiff.
16. He submits that at the time when the criminal case was originally
registered in June 2018, certain news items were posted by various media
houses including the defendant nos.1 to 4 i.e. the India Today Group,
INDIADOTCOM Digital Pvt. Ltd., Mid day info media Ltd. and The Indian
express, respectively, on their websites alleging plaintiff's involvement in
crime.
17. Even after the acquittal of the plaintiff, the said posts were not
removed thus, the plaintiff served legal notice dated 03.05.2024 to the
various media houses. Some of the media houses as mentioned in para 17 of
the plaint, who had published / circulated the news, removed the offending
contents from their respective platforms after receipt of notice. However, the
defendant nos. 1 to 4 have not deleted the defamatory news/articles against
the plaintiff.
18. On the contrary, the defendant no. 1, the defendant no. 2 and the
defendant no.4 have updated the old posts mentioning the fact of plaintiff's
acquittal which has revived and brought to the fore allegations as originally
made against the plaintiff.
19. Elaborating on his submissions, the learned counsel for the plaintiff
invites the attention of the Court to Document No. 2 annexed with the plaint,
which is an updated post published by defendant no.1 on 28.05.2024,
updating its previous post of 27.06.2018. Besides giving the update of
plaintiff's acquittal, the updated post also says - "The original story
follows" and then original post has been extracted containing allegations
which are defamatory per se and in respect of which an order of acquittal
has already been recorded in the year 2019. Thus, the contents of original
posts are still available to the public at large for reading.
20. Attention of the Court was also drawn to a similar update published
by defendant no.2 on 07.05.2024 in respect of its original post dated
27.06.2018 and the said original post containing contents that are
defamatory per se is also available as a trail to the updated post.
21. Likewise, attention has been drawn to the post published by the
defendant no.3 on 28.06.2018 as well as to the post updated by the
defendant no.4 on 11.07.2024, to contend that the said posts containing
similar defamatory allegations are still available on the internet and are thus,
viewed by thousands of people even after the acquittal of the plaintiff.
22. Apart from the posts published by defendants nos. 1 to 4, attention of
the Court is also invited to various posts dated 06.03.2024, 07.03.2024,
21.03.2024 and 23.03.2024,on the defendant no.5's platform i.e., 'X',
wherein, some unknown persons have castigated the plaintiff and have
called for awarding punishment to him notwithstanding plaintiff's acquittal.
23. He submits that the plaintiff is an established businessman, with a
family comprising of a daughter aged about 23 years and a son aged about
21 years, who are of marriageable age. The disparaging and defamatory
contents of the posts referred to above have caused serious damage and
injury to the reputation and image of the plaintiff in the corporate world as
well as amongst his relatives, friends and family members. It is thus, urged
that necessary directions be given to the defendants to remove the impugned
libelous posts / news articles from their respective websites as well as from
'X'.
24. The learned counsel for the plaintiff has relied upon the decisions of -
the Hon'ble Apex Court in - K.S. Puttaswamy (Retd.) vs. Union of India,
(2017) 10 SCC 1; the High Court of Himachal Pradesh in State of HP Vs.
'X', 2024 SCC OnLine HP 3169 and the High Court of Karnataka in XXXX
vs. Registrar General, High Court of Karnataka, represented by State
Public Prosecutor and Others, 2024 SCC Online Kar 18, to contend that
the right to be forgotten is an inherent aspect of right to privacy and thus, the
plaintiff cannot be seen as an accused and chastised for all his life,
especially when he has been honourably acquitted by the court of law.
25. Having heard the learned counsel for the plaintiff, at the outset it is to
be noted that the acquittal of the plaintiff is not in dispute. The posts have
though been updated by the defendant nos. 1, 2 and 4 to state that the
plaintiff has been acquitted, however, the fact remains that the updated posts
still have the trail of original posts containing allegations against the plaintiff
which are disparaging, defamatory and libelous and portrays the plaintiff in
bad light.
26. Therefore, the question which confronts this Court at this stage is
whether any direction to the defendants is warranted to remove the posts /
articles containing libelous and defamatory contents against the plaintiff in
respect of a criminal case in which the plaintiff has secured honourable
acquittal, which has attained finality.
27. The answer is not far to seek. In Registrar General, High Court of
Karnataka (supra) the High Court of Karnataka dealing with somewhat
similar situation has observed that after the accused gets blame-free by a
process of law, he cannot be seen to be carrying the sword of him being
accused on his head for all his life. The Court further noted that right to
oblivion; right to be forgotten are the principles evolved by the democratic
nations, as one being a facet of right to informational privacy.
28. After considering dicta in the Hon'ble Supreme Court's decision in
K.S. Puttaswamy (Retd.) (Supra); this Court's decision in SJ vs. Union of
India, (2023) 2 HCC (Del) 520 as well as decision of the Queen's Bench in
NT 1 vs. GOOGLE LLC, [2018] EWHC 799, the High Court of Karnataka
observed that even an accused who has been discharged or acquitted
honourably by a competent court of law has a right to live with dignity. The
relevant paragraphs of the decision read thus:
"18. The Queen's Bench declines to accept the contentions of
Google for delisting the name of the accused therein. The claim
of the appellant before the Queen's Bench, on an allegation of
misuse of private information succeeded. The distilled
essence of the judgments rendered by the Apex Court and the
judgment of the Delhi High Court, as also that of the judgment
of Queen's Bench all quoted supra would mean that, even an
accused who has been discharged or acquitted honourably by
a competent Court of law has a right to live with dignity.
19. Article 21 of the Constitution of India mandates that no
person shall be deprived of his life or liberty except in
accordance with law. The expression 'life' cannot be seem to
connote a mere animal existence, it has a much wider meaning.
It takes within its sweep right to live with dignity. In the crime,
once the accused gets acquitted - honourably, discharged by a
competent Court of law, or this Court would quash those
crimes in exercise of its jurisdiction under Section 482 of
the Cr. P.C. and those orders become final, the shadow of
crime, if permitted to continue in place of shadow of dignity,
on any citizen, it would be travesty of the concept of life under
Article 21 of the Constitution of India. Every citizen born in
this nation, governed by the Constitution, has a right to live
with dignity. What is being sought for, is masking of the name
of the petitioner in the cause title of the case found in the
records of this Court.
20. In the peculiar facts of the case, no fault can be found with
such a demand. I deem it appropriate to observe that when
identical demands are made by those accused or victims, as the
case would be, accused who come within the circumstances
narrated hereinbefore, the Fourth Estate should also consider
masking, delisting and deleting their names from their
respective digital records and not drive them to this Court
seeking such deletion. However, it is made clear that mere
erasure of the name of the petitioner in the cause title, does not
mean that he is entitled to seek such erasure from the police
records. The direction would be only to enable the internet
forget, like the humans forget. If it is allowed to stay on
record, the internet will never permit the humans to forget.
21. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed.
(ii) The Registrar General of the High Court of Karnataka is
directed to mask the name of the petitioner in its digital records
pertaining to Criminal Petition No. 8172 of 2021 forthwith."
(emphasis supplied)
29. Reference may also be had to the decision of this Court in Zulfiqar
Ahman Khan vs. Quintillion Business Media Pvt. Ltd. and Others, 2019
SCC OnLine Del 8494 wherein this Court while considering the question
that whether defendants therein be restrained from republication of the
contents which have already been pulled down by the original publisher has
held as under:
"9. Accordingly, recognising the Plaintiff's Right to privacy, of
which the 'Right to be forgotten' and the 'Right to be left alone'
are inherent aspects, it is directed that any republication of the
content of the originally impugned articles dated 12th October
2018 and 31st October 2018, or any extracts/or excerpts
thereof, as also modified versions thereof, on any print or
digital/electronic platform shall stand restrained during the
pendency of the present suit."
30. The decision in Zulfiqar Ahman Khan (supra) was
subsequently relied upon by this Court in Jorawer Singh Mundy vs.
Union of India and Others, 2021 SCC OnLine Del 2306. In latter
case this Court was considering the grant of interim relief in writ
petition seeking removal of judgment of acquittal of petitioner therein
from various platforms like Google, Indian Kanoon, vLex.in etc.
which was affecting the petitioner's prospects of getting an
employment as said judgment was available to any potential
employer, who wanted to conduct petitioner's background verification
before employing him. In this backdrop, this Court held as under:
"11. It is the admitted position that the Petitioner was
ultimately acquitted of the said charges in the case levelled
against him. Owing to the irreparable prejudice which may be
caused to the Petitioner, his social life and his career
prospects, inspite of the Petitioner having ultimately been
acquitted in the said case via the said judgment, prima facie
this Court is of the opinion that the Petitioner is entitled to
some interim protection, while the legal issues are pending
adjudication by this Court.
12. Accordingly, Respondent Nos. 2 and 3 are directed to
remove the said judgment dated 29th January 2013 in Crl.A.
No. 14/2013 titled Custom v. Jorawar Singh Mundy from their
search results. Respondent No. 4 - Indian Kanoon is directed to
block the said judgement from being accessed by using search
engines such as Google/Yahoo etc., till the next date of hearing.
Respondent No. 1 to ensure compliance of this order."
31. Likewise, in one of the latest decisions of this Court in SJ vs. Union
of India, 2023 SCC OnLine Del 3309, whilst relying upon the judgment in
Zulfiqar Ahman Khan (supra), it was held as under:
"7. In the opinion of the court, the fact that the entire career of
the petitioner, who is a young executive, is likely to be
jeopardised due to the continued presence of the impugned
articles on the internet would weigh in favour of directing the
removal of these publications. Moreover, the court has to draw
a balance between the right to access information, in general
on the one hand and the petitioner's well-being, mental
health, career prospects and prospects in life and family on
the other hand. The fulcrum of any society following the rule
of law would be to reform a person and not condemn a person
permanently. While bearing these factors in mind and
considering the order extracted above, it is deemed appropriate
to direct all the publishers i.e. Respondents 3 to 10 to remove
the articles which have been collectively attached to the petition
as Annexure P-1.
8. In addition, access to the said articles shall also be blocked
by Respondent 2/Google LLC.
9. MeitY shall also issue directions for blocking of any articles
relating to the petitioner and the FIR which has been quashed,
within 48 hours. The present order shall be communicated by
Mr Rakesh Kumar learned CGSC, to MeitY for necessary
compliance.
10. Learned counsel for the petitioner shall provide learned
counsel for the respondents all the specific URLs of the articles
of which removal is sought. The list shall be communicated by
the end of day to the respondents.
11. The said URLs shall be removed within 48 hours and the
access to the same shall be blocked by the respondents.
12. Insofar as the Indian Express is concerned, one week's time
is granted to the said respondent to remove the articles."
(emphasis supplied)
32. Recently, a Division Bench of the High Court of Himachal Pradesh in
State of HP Vs. 'X' (supra) had an occasion to consider the "right to be
forgotten" in the context of an acquittal in a criminal case wherein it was
held as under:
"20. Thus, there can be no dispute that right of privacy of
which the right to be forgotten and the right to be left alone are
inherent aspects. Once that be so, obviously, the names of the
prosecutrix as also the appellant need to be masked/erased so
that they do not appear/visible in any search engine, least the
same is likely to jeopardize and cause irreparable hardship,
prejudice etc., not only to the respondent and the prosecutrix,
but to their little daughter in their day-today life, career
prospects etc. etc.
21. Article 21 of the Constitution of India mandates that no
person shall be deprived of his life or liberty except in
accordance with law. It is more than settled that the expression
'life' cannot be seem to connote a mere animal existence it has
a much wider meaning. It takes within its sweep right to live
with dignity. In the crime, once the accused gets
acquitted/honorably discharged by a competent Court of law or
this Court, and the order becomes final, the shadow of crime, if
permitted to continue and substitute its place for the shadow of
dignity on any citizen, it would be a travesty of the concept of
life under Article 21. Every person has a right to live with
dignity.
22. In view of the aforesaid discussion, we not only do not find
any merit in the instant application and accordingly reject the
application for grant of leave to appeal, but also direct masking
the names of the appellant and the prosecutrix from the data
base of the learned Special Judge, Bilaspur and further direct
the Registrar General of this Court to mask the names of the
appellant in the digital records, pertaining to the instant
appeal."
33. Incidentally, the Hon'ble Supreme Court in K.S. Puttaswamy (Retd.)
(supra) observed that the right of an individual to exercise control over his
personal data encompass his right to control his existence on the internet, but
the same is not an absolute right. The existence of such a right does not
imply that a criminal can obliterate his past. The right to privacy has to be
balanced against other fundamental rights like the freedom of expression, or
freedom of media etc. The relevant part of the said decision reads as under:
629. The right of an individual to exercise control over his
personal data and to be able to control his/her own life would also
encompass his right to control his existence on the internet.
Needless to say that this would not be an absolute right. The
existence of such a right does not imply that a criminal can
obliterate his past, but that there are variant degrees of mistakes,
small and big, and it cannot be said that a person should be
profiled to the nth extent for all and sundry to know.
Xxxx xxxx xxxx
635. Whereas this right to control dissemination of personal
information in the physical and virtual space should not amount to
a right of total eraser of history, this right, as a part of the larger
right to privacy, has to be balanced against other fundamental
rights like the freedom of expression, or freedom of media,
fundamental to a democratic society.
34. Thus, Courts will have to balance the competing rights in the facts
and circumstances of each case. This Court is prima facie of the view right
to freedom of expression of the press in the present case must give way to
the right to privacy of the plaintiff especially when he has been exonerated
of all the allegations leading to his honourable acquittal. Apart from the
existence of old news articles / posts on the internet, the plaintiff's
reputation has been injured on account of updation of such posts which has
again brought plaintiff's accusation under public glare. Further, the posts
made by unknown persons on the defendant no.5's / 'X' platform have also
equally injured the reputation of the plaintiff. Therefore, it appears to be a fit
case to invoke the right to be forgotten in favour of the plaintiff. The balance
of convenience also lies in favour of the plaintiff. I am also satisfied that
grave and irreparable damages will be caused to the plaintiff, if ad interim
injunctive orders are not passed in his favour. Accordingly, it would be
appropriate to grant ad-interim injunction in favour of the plaintiff and
against the defendant nos. 1 to 4 as well as unknown persons (John Doe)
who have made per se defamatory statements against the plaintiff on 'X'.
35. In view of the above, the defendant nos. 1 to 4 are hereby restrained
from posting / updating any posts in respect of alleged criminal case from
which the plaintiff has already been honourably acquitted in the year 2019.
The defendant nos.1 to 4 are also directed to remove / delete the impugned
posts dated 28.05.2024, 07.05.2024, 28.06.2018 and 11.07.2024 respectively
from their websites. The aforesaid directions shall be complied with, within
a period of 15 days.
36. It is apposite to mention here that as the addresses / email IDs /
contact numbers, of unknown persons (John Doe) are not available with the
plaintiff and only their 'X' handles are available, as can be seen from the
screenshots of the posts annexed at Document No.2 of the plaint, which are:
(i) @AAMIRCRAZE; (ii) @swarup_x; (iii) @aruna_771; (iv) @bablu_250;
(v) @mikux_124; (vi) @Miss_charmi... (vii) @munax_12; and (viii)
@kadalodi04, the defendant no. 5 / 'X' is directed to disclose the contact
details of aforesaid unknown persons, including their names, e-mail IDs, IP
address and all other information which is at present available with
defendant no. 5 to the plaintiffs within a period of 10 days.
37. It is further directed that the plaintiff on getting the requisite
information as directed in paragraph 36 above, shall contact the unknown
(John Doe) persons immediately for removing / deleting the posts dated
06.03.2024, 07.03.2024, 21.03.2024 and 23.03.2024 wherein the defamatory
statements were posted against the plaintiff.
38. It is also directed that if the aforesaid posts made by unknown persons
are not deleted within the period of 48 hours after the plaintiff having
contacted them, the defendant no.5 / 'X', shall delete / remove the same
within 48 hours from receipt of plaintiff's request.
39. Provisions of Order XXXIX Rule 3 of the CPC be complied with qua
defendant nos. 1 to 5 within one week from today, and affidavit of
compliance be filed within three days thereafter. The defendant nos. 1 to 5
will be at liberty to apply for vacation, variation or modification of this
order, if necessary.
40. The observations made herein are prima facie for the consideration of
interim relief under Order XXXIX Rules 1 & 2 C.P.C by the plaintiffs.
41. List before Joint Registrar for completion of service and pleadings on
27.09.2024.
42. List the suit along with all pending applications on 29.10.2024.
VIKAS MAHAJAN, J
JULY 22, 2024
'rs'
