Tuesday, October 29, 2013

Truth of defamation case filed by Mr Pawan Khera for defamation of Ms Sheila Dixit against Mr Arvind Kejriwal for calling her dalal

Development dated 28.10.2013 in the court of Mr. Sanjay Bansal, Karkardooma Courts in the defamation complaint case filed by Mr. Pawan Khera, Political Secretary/OSD to Ms. Sheila Dixit, Hon’ble CM of Delhi against Mr. Arvind Kejriwal is being projected as big development in the media channels/newspapers. Sorry to say that such is not the case and this piece is to explain the same.

Criminal cases are of two kinds viz. summon and warrant cases. Unlike sec. 239 applicable to a warrant case, in a summon case there is no provision in CrPC available to the accused to provide a counter to the complaint for discharge. Once cognizance has been taken by the concerned magistrate (which happens on the basis of hearing just the complainant and his witnesses, if any and without hearing the accused) and the accused gets summoned, the concerned court, even though feels satisfied after hearing the accused that no case is made out, is helpless and can’t do anything but to frame the notice and start the trial. The defence extended in a summons case under sec. 251 of CrPC get recorded along with the notice and is not considered to drop the charges. This was not the case until the judgment of Hon’ble Supreme Court of India in case titled Adalat Prasad versus Roop Lal Jindal 2004 (7) SCC 338 came wherein it was said that the earlier review in K M Mathew’s case that no specific provision is required for recalling an erroneous order of issuance of process amounting to one without jurisdiction does not lay the correct law since in the absence of any review power or inherent power with the subordinate Courts, the remedy lies  in invoking section 482 of the CrPC to revoke or recall an order of issuance of process by the magistrate under section 204 CrPC.

In view of the above when the court, predecessor to the present one, took cognizance of the complaint filed by Mr Pawar Khera and issued process under section 204 CrPC summoning Mr Arvind Kejriwal, the only way available was either to challenge the issuance process or file a petition under section 482 of CRPC before Hon’ble High Court of Delhi for quashing of the complaint and processes originating therefrom. It was precisely this position of law which did not allow the ld. Court, as recorded in the order dated 26th of October 2013, to adjudicate our arguments extended before the Hon’ble court and the point of locus of Mr Pawan Khera in view of sec. 199(1) of CrPC and the judgement of Hon’ble Bombay High Court in the case titled “Balasaheb Keshav Thakrey versus state of Maharashtra” to 2002 Lawsuit (Bom) 1150. In this case was clearly held that the term “the person aggrieved” does not include anyone but the person defamed unless the person so defamed is under the age of 18 years or is idiot or a lunatic or is from sickness or infirmity unable to name a complaint or woman who according to the local customs and manners ought not to be compelled to appear in public in which case some other person may with the leave of the court make a complaint on his or her behalf. Ms. Sheila Dixit in my opinion does not fall in any of these categories unless Mr Pawan Khera has reasons to believe/prove so and hence cognizance of complaint of Mr. Khera for defamation of Ms Dixit is bad in law.

For the reasons above, we have decided to move to Hon’ble High Court of Delhi for quashing of the complaint and the processes originating therefrom under section 482 of CrPC. I have firm belief that the cognizance and summoning orders suffer from serious legal infirmities as they are devoid of legal merits and will not withstand judicial scrutiny of Hon'ble High Court of Delhi. And for such wastage of precious judicial time lower judiciary needs to be more sensitised.

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