[AAP vs BJP Defamation Case] Supreme Court Reserves Judgement On Petitions Moved By BJP MP Manoj Tiwari, Delhi MLA Vijender Gupta

The defamation case was filed by Sisodia in 2019 against BJP leaders — Members of Parliament Manoj Tiwari, Hans Raj Hans and Pravesh Verma, former MLA Manjinder Singh Sirsa, Rohini constituency; MLA Vijender Gupta, and Spokesperson Harish Khurana — for allegedly making defamatory statements about his involvement in corruption of nearly Rs 2,000 crore in the building of classrooms in Delhi's government schools.

The order was reserved by Justices Abdul Nazeer and V Ramasubramaniam after hearing the case for two days.

On November 28, 2019, the Additional City Metropolitan Magistrate, Rouse Avenue Courts, New Delhi, issued summons to Tiwari and other accused on the criminal complaint. Though Tiwari approached the Delhi High Court challenging the summons, a single bench of Justice Anu Malhotra rejected his plea on December 17, 2020. The High Court expressed the prima facie view that the statements and imputations harmed the reputation of the minister and that the defence of Tiwari can be considered only at the trial stage.

During the hearing today, Senior Advocate Pinky Anand, appearing for Gupta, submitted that the procedure followed by Sisodia was not correct while moving the case for defamation. And that, the alleged "defamatory" matter were certain tweets by Gupta, the court was told.

The subject matter of the case was a set of tweets by Gupta where he raised about 24 questions on Sisodia's alleged involvement in corruption of nearly Rs 2,000 crore in the building of classrooms in Delhi's government schools. The last part of the tweet was – "Your scam would come out, if you answer these questions."

"What is the allegation against me? I was not at the press conference. It's an admitted position. The allegation against me is that I made a tweet. And in that tweet I ask questions (relating to Sisodia's involvement in corruption). I'm an MLA, as leader of opposition, I ask questions to the government. There is no other allegation, there's no other electronic evidence," argued the counsel representing Gupta.

As per Section 199(2) CrPC, a defamation complaint in respect of statements against a Minister can be taken cognizance of only by a Court of Sessions, that too on a complaint made by the Public Prosecutor.

However, the complaint was filed by Sisodia invoking Section 199(6) CrPC, which says that the section does not affect the right of a person, against whom the offence is alleged to have been committed, to make a complaint before the jurisdictional magistrate.

During the hearing, Anand further stated that there are two questions in the case - one is the element of questioning in a democracy. Secondly, it is the process itself, which is exhausted. Summoning procedures in criminal trials goes through several procedures, she said. Section199 (6) can be invoked only if no sanction has been granted by the State government under section 199 (2) to initiate a case of defamation, it was added.

"Summoning order has been issued. Sections 199 (2) is before section 199 (6). As per the section, nobody can just get up and prosecute. That's the intention. On section 199 itself, anybody cannot raise their hands and go against a senior person, performing government function. Therefore, you have the entire process set up for sanction. It is equivalent to the sanction under section 197 under the criminal law," she submitted further

Advocate on record, Shadan Farasat, appearing for Sisodia, attempted to convince the Bench on how the tweets by Gupta were defamatory in nature.

"Your scam would come out, if you answer these questions-that is the last part of the tweet. Milords, Though, it's under the guise of a question, it is an imputation under section 499 of the Indian Penal Code [Defamation]."

However, the bench remarked, "If you think this is an imputation, then all questions under the Right to Information Act would come under this category".

At this point, the lawyer apprised the Bench of the High Court's view in the matter.

"At the least, Gupta knew that if he puts across tweets in this manner, he had the knowledge that it would harm Sisodia's reputation, the High Court had noted, milords….Under the second part of Section 499 of IPC (Defamation), the High Court has been very careful, saying that this not a direct imputation," submitted Farasat.

However, the court observed that the tweet did not the paint the complainant as a corrupt man and therefore, the intention to harm in this scenario was questionable.

Yesterday, Senior Advocate Venkatramani appearing for Tiwari argued that the Magistrate had ignored Section 199(2) of the Code of Criminal Procedure while taking cognizance of the complaint.

"When the defamation is with respect to a public servant for work in his official capacity, there's a special procedure under section 199 (2). A case such as this, can be moved only before a Court of Sessions, through the public prosecutor," the senior counsel argued.

Countering the submission, Senior Advocate Dr. Abhishek Singhvi, appearing for Sisodia, had argued that the right of the complainant to move the Magistrate under Section 199 (6) is preserved.

Case Title: Manoj Kumar Tiwari Versus Manish Sisodia And Ors | Slp(Crl) No. 351/2021 Ii-C, Vijender Gupta vs State Govt of Delhi | SLP(Crl) No. 658/2021 II-C

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