MP High Court Refuses To Quash Sr Adv Vivek Tankha's Defamation Case Against Union Minister Shivraj Singh Chouhan And Two Others

The Madhya Pradesh High Court dismissed a plea by Union Minister Shivraj Singh Chouhan and two others challenging a magisterial court's order taking cognizance of criminal defamation complaint registered against them by senior advocate and Member of Parliament Vivek Tankha in connection with certain court proceedings from 2021.

In doing so, the Jabalpur bench of the high court said that it was only for the trial court to see whether offence under Section 499 IPC is made out or not which can only be done by evidence adduced during trial. 

A single judge bench of Justice Sanjay Dwivedi in its October 25 order observed:

“In my opinion also, this is not a stage where the court can draw an inference that the material placed by the complainant could have been thrown-out terming it 'inadmissible'. Here, it is profitable to see Fifth Exception to Section 499 of IPC, which bespeaks that offence of Section 499 has to be tested by the court...It is amply clear that the case has to be decided on merits in Court. Highlighted it was that after making statement by the applicants, the complainant did send notice to them asking whether they had made any such statement or not and in that event, the applicants could have denied the same, but remained reticent and did not bother to send reply to the complainant's notice”

The high court referred to certain paragraphs of the Supreme Court's observations in Subramanian Swamy v. Union of India (2016), which said that "causing harm to the reputation of a person is the basis on which" the offence of defamation is founded under Section 499 IPC and "mens rea is a condition precedent" to constitute the offence. 

The high court thereafter said, “Ergo, it is for the trial Court to see whether the offence under Section 499 of IPC has been committed or not and that can only be determined on the basis of evidence adduced during the trial...Notably, as per the Supreme Court, the only thing which is required to be seen before taking cognizance in the matter, whether the material placed before the court is sufficient to take cognizance in the matter or not, but it does not mean that the Magistrate would form an opinion whether the material is sufficient for conviction". 

The high court further said that the evidence was placed before the concerned court to take cognizance, and it will be proved in the trial whether such evidence/material are sufficient to convict the accused or not.

However the high court said, that if "prima facie" the court thinks the evidence cannot be ignored at the initial stage, then it has no other option but to proceed with the trial and issue summons to the accused to rebut the presumption drawn by the court in respect of the evidence produced before it.

Background

The complainant-respondent Member of Parliament and Senior advocate Vivek Tankha moved a complaint before a trial court claiming that petitioners–including Union Minister and former Madhya Pradesh Chief Minister Shivraj Singh Chouhan and two others, made allegedly defamatory statements against the senior counsel in print and visual media and for "propagandizing" the proceedings pertaining to a matter on Panchayat elections heard by the Supreme Court and the High Court in 2021.

Tankha, who appeared for the petitioner in the matter before the Apex Court, claimed that during the hearing in December 2021, he had neither argued the issue with regard to OBC reservation nor made any pleading about OBC reservation. However, after the Supreme Court's December 17, 2021 order, Tankha alleged that the petitioners "launched a coordinated, malicious, false and defamatory campaign against him through scandalising the proceedings of the Supreme Court and the High Court in print and visual media", wherein the "complainant is being targeted as the one who is against OBC reservations". 

The complainant claimed that the statements were false and designed to tarnish his reputation, resulting in significant public criticism. After the complainant moved the trial court, the petitioners approached the high court against the registration/cognizance of the complainant. 

Before the high court, the petitioners argued that the evidence supporting the allegations was inadmissible since it consisted primarily of media stories and lacked substantiating testimony from the journalists who wrote them. It was submitted that the complainant had produced the list of witnesses, but essentially it did not contain any news reporter as a witness. This meant that whatever news was published and relied by the complainant cannot be proved in absence of any witness as news reporter. 

The Petitioner's counsel contended that the Magistrate's decision to proceed was based on inadmissible evidence including here say newspaper articles and media statements that lacked legal authentication. It was contended that the  dispute was purely civil in nature and at the most complainant could claim compensation for defamation, but no case is made out for initiating criminal prosecution against the petitioners. 

The respondent complainant argued that the evidence produced by him along with the complaint and cognizance taken thereupon, was prima facie found sufficient having ingredients to constitute the offence. He submitted that the evidence adduced before the court was admissible or not, would be decided during the course of trial. It was  submitted that it is not a case of 'no evidence'. It was contended that merely because the list of witnesses does not contain the name of any news reporter would not mean that any such witness cannot be added or  called in the court to record his statement at a later stage.

Findings

Taking note of the exceptions to the offence of defamation, the high court said that indisputably, "public good" is a question of fact and "good faith" also has also to be established as a fact. Hence to prove good faith so as to constitute offence of Section 499 of IPC(criminal defamation), trial is necessary, it said. 

"I am fully impressed and agreed with the submission made on behalf of the respondent-complainant that if no newspaper reporter was cited in the list of witnesses, it does not mean that no other person can be called as witness or the court lacks power to call any person as witness not included in the list of witnesses. Indeed, that is not a ground for terming the material produced as inadmissible," it added. 

Finding no reason to quash the complaint, the high court dismissed the plea. 

Case title: Shivraj Singh Chouhan And Others v/s Vivek Krishna Tankha

Counsel for applicants: Senior advocate Surendra Singh, advocates Akshat Arjariya, Rohan Harne and Karnik Jaggi

Counsel for respondent : Senior advocate Kapil Sibbal, advocates H.S. Chhabra and Shri Shivendra Pandey

Case No: MISC. CRIMINAL CASE NO.12558/2024

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