Delhi Court Upholds Order Summoning Zee News Chief Sudhir Choudhury In Mahua Moitra's Defamation Complaint

Background

On 25^th June, 2019, Moitra, the Complainant/Respondent, had delivered a speech in the Indian Parliament and had indicated that the ruling dispensation had been conducting itself in a manner which brought about a situation that was contemplated by a poster in the Holocaust Museum in USA and referred to several signs of Fascism.

Chaudhary, the Revisionist/Accused, alleged that Moitra's speech was plagiarized from an article authored by Marin Longmean available on Washington Monthly. The Order staes that the Revisionist repeatedly claimed that the Complainant had stolen her speech and had labelled her acts as theft during the broadcast on his channel.

However, even after Longmean clarified that the speech was not plagiarized, the Revisionist did not take down the broadcast from various official social media platforms of Zee News nor did he make any retractions or apologies.

Accordingly, cognizance of the offence was taken by the learned MM and a summoning order was issued wherein the Revisionist was summoned as an accused to face trial.

Arguments

Advocate Vijay Aggarwal, appearing for Chaudhury, submitted that the order passed by the learned MM was a cryptic order, passed in mechanical manner without application of judicial mind, and had failed to appreciate the seriousness of summoning of accused in a criminal case.

It was further argued that the Complainant had not approached the Court with clean hands; that it was mandatory to conduct inquiry under Section 202 of the CrPC. Additionally, it was settled proposition of law that when accused resides beyond the jurisdiction of the trial court, it was mandatory on the part of the Magistrate to conduct an inquiry or investigation before summoning of the accused.

Aggarwal also submitted that the case of Chaudhury was squarely covered under the exceptions of Section 499 of CrPC as the essential ingredients for the commission of the offence of defamation were not made out, and there was no intention or knowledge on the part of the revisionist to defame anyone.

Additionally, judicial notice was taken of news, reports, articles etc, which was not legally admissible. Further, gross misrepresentation and concealment had been made by the Complainant with regard to material or vital aspects of the matter.

Senior Advocate Vikas Pahwa, appearing for Moitra, per contra submitted that there was no infirmity or illegality in the order as due process of law had been followed, and the grounds raised in the revision petition were frivolous and flimsy. It was submitted that they were filed with an ulterior motive and to delay the matter.

It was also argued that the Revisionist had approached the Court in an entirely dishonest and malafide manner. Further, the argument that the reliance could not be placed on newspaper reports was wholly incorrect when it came to cases of defamation. The case of Vijay Dhanuka was referred in order to aver that the requirement of inquiry as envisaged under Section 202 of the CrPC had been met by the MM with the examination of the complainant and her witnesses.

It was further submitted that it was settled law that to ascertain whether a defamatory imputation had been made was a matter of evidence and not conjecture; it could not be determined at the preliminary stage. Therefore, the act of the Revisionist was not in good faith or for the benefit of the public at large.

Findings

Whether Inquiry Mandated Under Section 202(1) CrPC Was Duly Conduted By MM:

The Court, while relying on landmark Vijay Dhanuka, held that the mandate of the law had been duly complied with. It was stated that the legal principle that flowed was that inquiry or the investigation as the case may be, was mandatory before summons were issued against the accused, leaving beyond territorial jurisdiction of the trial court.

Additionally, it was noted that every inquiry other than the trial conducted by the Magistrate or the Court was an inquiry; there was no specific mode or manner of the inquiry to be conducted.

In the context of the instant case, the Court observed that the MM had specifically recorded that arguments were heard on the aspect of inquiry under Section 202, and this implied that the MM was conscious of the mandate of law.

Furthermore, the MM had also proceeded to discuss this aspect of requirement of law, and after appreciating evidence of complainant and two other witnesses examined on behalf of the Complainant, had specifically held that the mandatory inquiry had been complied with.

In light of the above, the Court held that it could not be said that the impugned order suffered from any illegality of non-compliance.

Whether Newspaper Reports Are Legally Admissible Evidence:

Regarding the admissibility of newspaper reports and other documents as evidence, the Court noted that it was suffice to state at this stage that the impugned order was primarily based not on documentary evidence, but also on ocular and other evidence placed before the Court.

The issue regarding the same could be adjudicated by the Trial Court at the stage of trial, and the question of relevancy, admissibility of the documents and their evidentiary value could be agitated by the Revisionist before the Trial Court.

Noting that the objection of the Revisionist that the order was cryptic, without application of judicial mind, could not be sustained, the Court dismissed the Revision Petition.

Appearance for Revisionist/Accused: Vijay Aggarwal and Neeraj Tiwari

Appearance for State: SK Kain, learned Additional Public Prosecutor

Appearance for Respondent/Complainant: Senior Advocate Vikas Pahwa, along with Shadan Farasat, Adit S. Pujari, Syed Arham Masud, Chaitanya Sundriyal, Tusharika Matoo, Kajal Dalal and Bharat Gupta