Supreme Court Issues Notice On Union Minister Shivraj Singh Chouhan's Plea To Quash Vivek Tankha's 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 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.BackgroundThe 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 ...

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

Gursimran Kaur Bakshi

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