Supreme Court Issues Notice On Union Minister Shivraj Singh Chouhan's Plea To Quash Vivek Tankha's Criminal Defamation Case

Gursimran Kaur Bakshi

11 Nov 2024 5:23 PM IST

  • Supreme Court Issues Notice On Union Minister Shivraj Singh Chouhans Plea To Quash Vivek Tankhas Criminal Defamation Case

    The Supreme Court on Monday (November 11) exempted Union Minister Shivraj Singh Chouhan from a bailable warrant issued in a criminal defamation case filed against him by Senior Advocate and Rajya Sabha MP Vivek Tankha, subject to his participation in the proceedings.The Court also issued notice on the plea of Chouhan (and others) challenging the Madhya Pradesh High Court's order which refused...

    The Supreme Court on Monday (November 11) exempted Union Minister Shivraj Singh Chouhan from a bailable warrant issued in a criminal defamation case filed against him by Senior Advocate and Rajya Sabha MP Vivek Tankha, subject to his participation in the proceedings.

    The Court also issued notice on the plea of Chouhan (and others) challenging the Madhya Pradesh High Court's order which refused to quash the Magistrate's cognizance order on Tankha's complaint.

    Tankha filed the defamation case over the alleged statements of Chouhan and others that he was against OBC reservations because of his appearance in a case relating to OBC reservations in MP Panchayat elections in the Supreme Court in 2021.  

    Before a bench of Justices Hriskesh Roy and S.V.N. Bhatti, Senior Advocate Mahesh Jethmalani (appearing for Chouhan) apprised the Court about the background of the case and stated that the High Court passed an order without referring to what is defamatory. 

    He argued that the High Court erred in the fact that the legislator's speech, which is a matter of defamation proceedings, is subjected to Article 194(2) on legislative immunity. 

    Jethmalani added that the speech was made in the "course of a political discourse" between "two political parties". One statement dated December 22, 2021, was made in the course of Assembly proceedings. Another relates to December 25, 2021.

    Apart from this, Jethmalani prayed that he may be excused from appearing against the bailable warrant issued.

    To this, Senior Advocate Kapil Sibal (for Tankha) stated that it was just a summon. But added that he should appear. 

    The Court showed its willingness to issue notice and ordered: "The counsel submits that if defamation proceedings are initiated against the petitioners at the instance of respondent (complainant).... The concerned alleged defamatory statements are set out in annexure and relates to 25-12-2021 and 22-12-21 in the backdrop of the MP Panchayat Elections. The counsel submits cognisance of the said proceedings erroneously invoked by the concerned court and the same should not have been done is in the teeth of Article 194(2) of the Constitution.

    Issue notice, returnable 4 weeks. Till then, petitioner may not be subjected to bailable warrant, subject to their effective participation with their counsels before concerned court."

    The order applies to the two other persons as well accused in the defamatory proceedings. 

    Order of Madhya Pradesh High Court 

    A single-judge 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 is 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 the 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 could not 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 hearsay 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.

    High Court's 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.

    Appearance: Senior Advocates Mahesh Jethmalanai, Maninder Singh, and Gagan Gupta, along with AoR Nikhil Jain for the petitioners

    Senior Advocate Kapil Sibal along with Adv. Sumeer Sodhi for the respondent

    Case title: Shivraj Singh Chouhan And Others vs Vivek Krishna Tankha, SLP(Crl) No. 15212/2024

    Click Here To Read/Download Order

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