New Delhi [India], February 3 : The Delhi High Court on Monday heard the arguments on the plea filed by BJP leader Praveen Shankar Kapoor against the trial court order. Kapoor has challenged the trial court order quashing the summons issued to CM Atishi in a Defamation case filed by him.
She had challenged the summoning order. The trial court had allowed her revision against the summons.
Justice Vikas Mahajan heard the arguments by senior advocate Ajay Burman, who appeared for petitioner Praveen Shankar Kapoor. Advocates Neeraj, Satya Ranjan Swain, and Shoumendu Mukherjee also appeared for Kapoor.
Senior counsel Burman argued that the revision court went beyond its jurisdiction by calling a status report on the complaint filed by Delhi State BJP Unit head Virender Sachdeva while quashing the summons.
The revision court observed, like a political analyst, the counsel argued. It was also argued that Atishi was not a whistleblower, as she did not file any complaint nor provide any source for her allegations.
It was alleged that Arvind Kejriwal and Atishi made false allegations against BJP in a press conference.
It was submitted that the magistrate court had issued a summons to CM Atishi by passing a detailed order on the complaint filed by Praveen Shankar Kapoor.
The revision court had also called a report in a complaint filed by the State BJP head from the police, which is out of its jurisdiction, the senior counsel argued.
The revision court used this position against me (Kapoor) saying that you can't file a defamation complaint as there is a criminal complaint filed pending into the allegations made by Kejriwal and CM Atishi.
A detailed summoning order was passed. She never gave any evidence for the allegations she levelled, counsel for the petitioner submitted.
The High Court perused the report filed by the crime branch on January 6, 2025.
It was submitted that serious false allegations were levelled by Arvind Kejriwal against the BJP. It was alleged that 21 MLAs were contacted. Rs. 24 crores were offered to each MLA, and 7 MLAs were offered Rs. 25 crores. The same allegations were made by Atishi.
It was argued by the counsel that to date they have not provided any information about the source of their allegations.
"If she was a whistleblower, she should have filed a complaint," the counsel argued.
It was alleged that if Kejriwal was to be arrested, their government would fall, and you (MLAs) would be given a chance to contest the election.
It was alleged that the BJP, under Operation Lotus, contacted 7 members of AAP and offered 5 crore. No source of information was given, the counsel argued.
She alleged that she was informed by one of her close persons that if she didn't join the BJP, she would be arrested.
Allegations are defamatory, the counsel argued.
The petition also mentioned the transcription, which reads "....Through this, I was approached to join the Bharatiya Janata Party and I was told that either I join the Bharatiya Janata Party and save my career and advance my political career, or if I do not join the Bharatiya Janata Party, then I will be arrested by ED within the next month."
The counsel also pointed out that the revision court also said that the BJP is a big political party and the AAP is a smaller party. AAP is the largest party in Delhi, the council added.
It was also argued that no complaint was made by her (Atishi) for the allegations she made. No source, no complaint; how can she be a whistleblower when she has not filed a complaint?
It was also argued that the media head and spokesperson of Delhi BJP is the aggrieved person, as the allegations were against the party to which he is associated. The person aggrieved may be directly or indirectly involved, the senior advocate submitted.
On January 30, BJP leader Praveen Shankar Kapoor moved to the Delhi High Court seeking quashing of the order of the Rouse Avenue court that had set aside the summons issued to CM Atishi in a defamation case.
Kapoor has filed a petition praying for the quashing of the order of 28.1.2025 passed by the special judge of the Rouseouse Avenue Court aside from the order of 28.5.2024 summoning the Delhi CM.
Atishi has dismissed the complaint under Section 200 CrPC filed by the petitioner.
The petition was moved through advocate Satya Ranjan Swain. Shoumendu Mukherjee has stated that the special judge has gravely erred by substituting his own views in a revision proceeding over the discretion of the magistrate and thus contravened the solemn principles as expounded in the decision of the Supreme Court in Nagawwa vs. Veeranna Shivalingappa Konjalgi and Ors.
It is further stated that the special judge has ventured into political adventurism akin to political discourse by attempting to determine who is a bigger / smaller political entity, which was not at all and never will be the scope of adjudication in revision proceedings.
The special judge did not even permit the complainant to have a trial in order to make good his allegations. The Ld. Special Judge's reliance on the decisions of the Hon'ble Supreme Court of India in S. Khushboo vs. Kanniammal and Subramaniam Swamy v. Union of India is erroneous and an outcome of selective reading.
It is further stated that in the present case, there exists an identifiable group/association/collection of persons, namely the Bharatiya Janata Party and legal injury has been inflicted on its members, more so its office bearers. The party has membership and the members of the party form an identifiable group, so any defamatory imputation made against the party can make its member fall under the term 'some person aggrieved.'
Hence, the Special Judge (MP/MLA Cases) has failed to appreciate Explanation II of Section 499 of IPC--which clearly states that making an imputation concerning a collection of persons would be tantamount to defamation, the plea said.
It is submitted that an individual's reputation, which has been included in the right to life, cannot be given a go-by at the expense of the elevated ideal of "freedom of speech". This balancing of the rights is also propounded by the Hon'ble Supreme Court.
The plea said that the special judge has chosen to undermine the other binding precedents of the Supreme Court, which hold that when a well-defined class is defamed, every particular of that class can file a complaint even if the defamatory imputation in question does not mention him by name.
It is also said that the special judge (MP/MLA cases) failed to appreciate that in the press conference, the respondent deliberately did not disclose the identity of the person who approached her.
Moreover, the details were not even disclosed to the Enquiry Officer of the Crime Branch, who had sent a notice along with a questionnaire to both the accused persons to give their following information. The complaint made to the Commissioner of Police was to ring loud the hollowness/falsity in the allegations made by respondents. The special judge has completely misread the lack of response by both the accused persons as well as the status report filed by the crime branch.
It is further said that the Special Judge (MP/MLA Cases) has intermingled the allegations against Arvind Kejriwal and Atishi Marlena. It is submitted that the role of the Atishi Marlena is greater in comparison to that of the Arvind Kejriwal.
Kapoor has said in the petition that the order passed by the special judge needs to be quashed, as there are various legal infirmities in the said Order. The special judge (MP/MLA cases) has transgressed from the criminal complaint and has dealt with issues that are of little significance to the case at hand. Hence the present petition.
The case stems from allegations made by Atishi, accusing the BJP of attempting to poach AAP MLAs. In his petition, Kapoor has sought the quashing of the trial court's order and the revival of the original defamation case. Kapoor argues that the trial court's decision contains legal flaws, asserting that the Special Judge (MP/MLA Cases) deviated from the criminal complaint and addressed matters irrelevant to the core issue.