"Evidently case of firing by someone from shoulder of complainant," says Delhi court setting aside summons against CM Atishi

Special Judge Vishal Gogne said, "The present complaint is evidently a case of someone else firing from the shoulder of Praveen Shankar Kapoor. Praveen Shankar Kapoor is not 'some person aggrieved' within the meaning of section 199 Cr. PC but only looking to be 'some person aggrieved'."

"The machinery of criminal justice delivery ought not to be activated upon fishing exercises," the special judge added.CM Atishi had challenged the summons issued to her on the defamation complaint filed by BJP Leader Praveen Shankar Kapoor.

"The present complaint is ill-conceived, circuitous and unsupported by any evidence of defamation. Being a tool for defeating criminal investigation, the complaint and the pre-summoning evidence does not justify the summoning of Atishi as an accused," the Court said in the judgement.

The court said that a reading of the complaint under section 200 of CrPC filed by Praveen Shankar Kapoor reveals that in fact, the President of Delhi BJP namely Virendra Sachdeva himself sought investigation on the allegations made by Atishi by filing a complaint with the Commissioner of Police, Delhi on 30.01.2024 seeking 'registration of FIR against the corrupt persons for offence of bribing AAP party MLAs'.

"Apparently, the top leader of the BJP in Delhi wants an investigation against his own party through registration of a FIR under the Prevention of Corruption Act upon the allegations made by Atishi while the Head of the Media Cell of the Delhi BJP seeks to prosecute her for defamation," the court said.

The court also said that the complaint is reflective of a "cloak and dagger approach" where officials from the same party the BJP have first acted to initiate a criminal investigation into the allegations of horse trading made by Atishi Marlena and simultaneously sought to prosecute her for defamation upon having made these very allegations. Regardless of status, a complainant, even if a seemingly powerful person as the Chief Minister, deserves protection, at least from prosecution on the specious allegations of defamation.

The court also raised questions over the conduct of Praveen Shankar Kapoor and said, "Quite conveniently, the said complaint dated January 30, 2024, made by Sachdeva was not exhibited in the pre-summoning evidence. The entire conduct of Praveen Shankar Kapoor is reflective of selective allegations and convenient assertions."

It further said that Quite contrary to the averment by Praveen Shankar Kapoor in his complaint under section 200 CrPC that since the allegations levelled against the BJP were false, Virendraa Sachdeva preferred a complaint seeking registration of an FIR, Sachdeva himself did not express even a semblance of falsehood in the allegations made by Atishi Marlena. Sachdeva did not assert that her allegations were defamatory.

The court observed, "This complaint is not directed against Atishi but against the very own party of Mr. Virendraa Sachdeva. It is not for the court to fathom the motivations of Sachdeva in seeking investigation of allegations of corruption against his own party."

Since the same party (BJP), from which one member/office bearer viz present complainant Praveen Shankar Kapoor seeks to be 'some person aggrieved' for the offence of defamation, has rather found it fit to press for registration of an FIR under the Prevention of Corruption Act to investigate the allegations of attempt at bribery of Rs 25 crores each to multiple MLAs of the AAP, the basis for the complainant to be aggrieved of defamation, only as a member of the said party, collapses to oblivion, the court said in the judgement passed on January 28.

The court held that Praveen Shankar Kapoor was required to justify his complaint in the light of the seriousness of the allegations made by CM Atishi, the forwarding of these very allegations to Delhi Police by his own party president in Delhi and the Commissioner of Police duly assigning it for enquiry to the Crime Branch. His efforts to somehow claim legal status as 'some person aggrieved' fall abysmally short in the context of the above three powerful circumstances.

"There is absolutely no defamation of the media head of the BJP if the leader of the AAP accuses the BJP of trying to buy their MLAs with huge sums of money," the court held.

While allowing the revision petition, the court also emphasized the freedom of speech and said "Freedom per se shall thrive only if it is guaranteed by the freedom of speech and expression as is secured by the Indian constitution."

The court said that the present action alleging defamation by Atishi is an oblique effort of complainant to circumvent both criminal investigation and the right to freedom of speech.

"Whilst such tactics may be part and parcel of political strategy, a court of law cannot be a party to the creation of a chilling effect on freedom of speech by admitting or acting upon such efforts to silence whistle-blowers or smaller political opponents. To summon Atishi for the offence of defamation in the present allegations would be suppressive of the freedom of speech and the accountability of public office, the court held.

"The repercussions of entertaining the present complaint upon the freedom of speech, by resorting to a low threshold for perceiving defamation, are sublime but certainly not invisible to the court," the court added.

The court further said that the prosecution of an elected representative (Chief Minister Atishi Marlena) who alleges horsetrading or the threat of prosecution by the ruling dispensation, under the veil of defamation seeks to suppress the narrative that a large political behemoth is admitting to swallowing smaller political outfits by the use of money power and the threat to unleash investigation agencies. To propagate such a narrative is also a part of the freedom of political speech of the smaller party.

"The big voice cannot scupper the smaller voice using the weapon of defamation. Any foot solider of a big enterprise like the party in question (BJP) must necessarily project broad shoulders in accepting an alternative political narrative. Such responsibility accompanies the privilege of being the ruling party," the court said.

The court is unable to find the allegations to constitute the 'high threshold' for defamation asserted by the order of the Hon'ble Supreme Court in Arvind Kejriwal, it added.

The court observed, " If the assertion of the Sr. Counsel for the complainant is accepted and complainant Praveen Shankar Kapoor is treated as 'some person aggrieved' under section 199 Cr. PC, floodgates would open for every worker of a party to institute criminal proceedings against the leaders of the opposing political party who may have made comments alleging political corruption or a like misdemeanour. The country being governed by different parties in different states, the chaos to ensue would be unfathomable." (ANI)