Vivek Tankha defamation case against Shivraj Chouhan can proceed: Madhya Pradesh High Court

The Madhya Pradesh High Court recently upheld the trial court’s decision to take cognizance of Senior Advocate Vivek Krishna Tankha’s defamation complaint against Union Minister Shivraj Singh Chouhan and two other leaders of the Bharatiya Janata Party (BJP) [Shivraj Singh Chouhan and Others vs Vivek Krishna Tankha]..Tankha, who is also a Member of Parliament (MP), filed a criminal defamation complaint against Chouhan, MP Vishnu Datt Sharma and Member of Legislative Assembly (MLA) Bhoopendra Singh earlier this year for allegedly defaming him in relation to a case on State Panchayat elections heard by Supreme Court in 2021.While upholding the trial court’s decision, Justice Sanjay Dwivedi in the verdict dated October 25 opined that the Court at this stage cannot draw an inference that the material placed by the complainant could have been thrown-out as inadmissible.“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,” it added..It is for the trial court to see whether the offence under Section 499 (defamation) of the Indian Penal Code (IPC) has been committed or not and that can only be determined on the basis of evidence produced during the trial, the Court further said..The counsel representing Chouhan and others had earlier argued that the material produced before the trial court was inadmissible and insufficient for taking cognizance.However, Senior Advocate Kapil Sibal, who appeared for Tankha, submitted that evidence produced by him, was prima facie found sufficient to constitute the offence. Sibal added that the question of admissibility of evidence would be decided during the trial..The single-judge also noted that the Supreme Court had held that the only thing which is required to be seen before taking cognizance in the matter is whether the material placed before the court is sufficient to take cognizance.“In the case at hands, in which, evidence was placed before the court to take cognizance in the matter and it will be proved in the trial whether such evidence/material are sufficient to convict the accused or not, but prima facie if the court comes to the conclusion that those evidence cannot be ignored at initial stage, 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,” the Court further said..The Court also agreed with Tankha’s counsel 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 said.Accordingly, the plea moved for quashing the trial court order and Tankha’s complaint was dismissed by the High Court..Senior Advocate Surendra Singh with advocates Akshat Arjariya, Rohan Harne and Karnik Jaggi represented Chouhan and other petitioners.Senior Advocate Kapil Sibal with advocates HS Chhabra and Shivendra Pandey appeared for Tankha, the complainant. [Read Judgment]