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2019 Supreme(Del) 1782
IN THE HIGH COURT OF DELHI AT NEW DELHI
Brijesh Sethi, J.
Mahua Moitra – Appellant
Versus
State And Another – Respondents
Writ Petition (Criminal) No. 2864 of 2019
Decided On : 17-10-2019
Nitya Ramakrishnan, Adv., Siddharth Aggarwal, Adv., Adit S Pujari, Adv., Tusharika Mattoo, Adv., Jahnvi, Adv., Chaitanya Sundriyal, Adv., Archit, Adv., Sneha, Adv., Abhinav Sekhri, Adv., Surabhi Dhar, Adv., Nikita, Adv., Rahul Mehra, Adv., Jamal Akhtar, Adv., Chaitanya Gosain, Adv., Amanpreet Singh, Adv., Mudit Jain, Adv., Deepanshu Choithani, Adv., Shailesh Pandey, Adv., Yugany Sharma, Adv., Hardik Sharma, Adv.
The accused has no right to participate in the proceedings at the pre-summoning stage, and the order passed by the Ld. MM was interlocutory in nature.
Headnote:
Article 226 - Writ of Certiorari - Sec. 482 CrPC - Sections 499, 500 IPC - Summary of Acts and Sections: The court discussed the application of Section 340 CrPC, the jurisdiction of the Magistrate at the pre-summoning stage, and the legality of the order passed by the Ld. ASJ. The key legal provisions discussed were the limitations on the participation of the accused at the pre-summoning stage and the interlocutory nature of the order passed by the Ld. MM and Ld. ASJ.
Fact of the Case:
The petitioner, a Member of Parliament, filed a complaint against a TV news presenter for defamation. The Ld. MM took cognizance of the offence and listed the case for presummoning evidence. The respondent filed an application under Section 340 CrPC seeking the prosecution of the petitioner for suppressing facts in her criminal complaint. The Ld. MM deferred the arguments on the maintainability of the application and listed the case for further pre-summoning evidence. The Ld. ASJ stayed the proceedings before the Ld. MM on the ground that the respondent had not been heard before passing the order dated 01.08.2019.
Finding of the Court:
The court found that the Ld. ASJ erred in staying the proceedings on the ground that the prospective accused had not been heard. It held that the accused has no right to participate in the proceedings at the pre-summoning stage and that the order passed by the Ld. MM was interlocutory in nature. The court set aside the order passed by the Ld. ASJ and quashed the proceedings pending before the Ld. Addl. Sessions Judge.
Issues: The issues revolved around the legality of the order passed by the Ld. ASJ staying the proceedings before the Ld. MM, the jurisdiction of the Magistrate at the pre-summoning stage, and the maintainability of the application under Section 340 CrPC.
Ratio Decidendi: The court's decision was based on the interpretation of the limitations on the participation of the accused at the pre-summoning stage and the interlocutory nature of the order passed by the Ld. MM and Ld. ASJ. It emphasized that the accused has no right to participate in the proceedings at the pre-summoning stage and that the order passed by the Ld. MM was interlocutory in nature.
Final Decision: The court set aside the order passed by the Ld. ASJ and quashed the proceedings pending before the Ld. Addl. Sessions Judge.
JUDGMENT :
Brijesh Sethi, J.
The present petition under Article 226 of the Constitution of India read with Sec. 482 CrPC seeking a Writ in the nature of certiorari to set aside the ex-parte order dated 25.09.2019 passed by the Ld. ASJ, New Delhi, Patiala House Courts in Criminal Revision No. 506/2019 pending before the Ld. MM, Patiala House Courts.
2. It is submitted by Ld. Counsel for the petitioner that petitioner, who is the complainant before the Ld. Trial Court, has filed the present writ petition seeking inter alia the issuance of a writ of certiorari quashing and setting aside the order dated 25.09.2019 passed by the Learned Additional Sessions Judge in C.Rev. No. 506/2019 titled "Sudhir Chaudhary v. State and Anr. Whereby the entire proceedings in the Ct. Case 9397 of 2019 before Ld. MM, PHC, New Delhi instituted by the petitioner seeking prosecution of Respondent no.2 under Sections 499, 500 IPC have been stayed on the ground that Ld. MM passed order dated 01.08.2019 without hearing the respondent no.2.
3. It is further submitted by Ld. Counsel for the petitioner that petitioner is accomplished member of the All India Trinamool Congress party (hereinafter referred as "TMC"), and is a currently serving as a Member of Parliament in the present 17th Lok Sabha from Krishnanagar constituency in West Bengal. Prior to entering politics, the petitioner had a well-established career as an investment banker in London.
4. It is further submitted by Ld. Counsel for the petitioner that on 25.06.2019, the petitioner delivered a speech in the Indian Parliament wherein she warned that India is currently displaying the following 7 signs of fascism:
(i) Superficial Nationalism.
(ii) Disdain for Human rights.
(iii) Media Control.
(iv) Obsession with national Security.
(v) Intertwining of Religion and Government.
(vi) Disdain for intellectuals and Art.
(vii) Erosion of independence in Electoral System.
5. It is further submitted by Ld. Counsel for the petitioner that in her speech she clarified that these 7 signs of fascism formed a part of a poster put up at the Holocaust Memorial Museum in the United States of America and never claimed to have coined or authored the signs of fascism' herself. Her speech explaining how these factors applied in the Indian context was extremely well received and lauded by the public and widely covered in both print and online media all across the country, as also internationally.
6. It is further submitted by Ld. Counsel for the petitioner that respondent no.2 is a TV news presenter who hosts the Hindi show, Daily News and Analysis (hereinafter referred as "DNA"), which is aired on the Indian news channel, Zee News. The respondent no.2 on 02.07.2019, dedicated an entire segment of approximately 7 minutes and 50 seconds of the primetime show, DNA, on Zee News, personally attacking the petitioner and passing defamatory comments about both her personal and professional capacity. He accused the complainant of plagiarizing her speech delivered in Parliament from an Article authored by Mr. Martin Longman that had appeared on an American Website, Washington Monthly, on 31.01.2017 titled, "12 Signs of Fascism." and he referred to this article as the "source" from which the complainant allegedly copied her speech. The link to the broadcast of the respondent no.2 was then shared on the Facebook, Youtube, and Twitter accounts of Zew News and the official website of Zee News.
7. It is further submitted by Ld. Counsel for the petitioner that following the broadcast by the respondent no.2 fraught with false and defamatory allegations, the petitioner issued a statement on her Twitter Account by which she explained that she had clearly attributed her source for the signs of fascism in her speech itself. Mr. Martin Longman, from whom the petitioner as per the respondent no.2 had allegedly plagiarized her speech, also stated in a po
