Delhi High Court Reserves Verdict On Plea By 'The Wire' Against Summoning Order Passed In Ex-JNU Professor's Defamation Complaint

The Delhi High Court on Wednesday (May 7) reserved its verdict on pleas moved by Foundation of Independent Journalism–which runs the media platform 'The Wire' and its editor Ajoy Ashirwad Mahaprastha challenging an order summoning them on a criminal defamation case filed by former JNU professor Amita Singh. 

Appearing for the petitioners, senior advocate Shadan Farasat argued, "This is a challenge to a summoning order. The main ground of challenge is that under Section 223 BNSS now its a defamation proceeding–complaint. As per the proviso there is a requirement of pre-summoning issuance of notice to the accused. That has not been complied in this case".

For context, Section 223 BNSS states that a Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. First proviso states that "Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard".

Farasat said that earlier the position under CrPC was different and now notice has to be issued prior to summoning under BNSS. 

"Your ground of challenge is since no notice was given, therefore this order is...," the court orally said. 

Farasat said that this was the primary ground; the secondary ground was that notice had gone to The Wire through the Chief Editor, and that The Wire was not a legal entity. "They could have made the Chief Editor the party but they cant say The Wire through Chief Editor. But thats an ancillary point," he added. 

The counsel appearing for Singh argued that there were judgments of various high courts on the point that once inquiry has started it is prospective in nature. 

Farasat said that the saving clause of BNSS Section 531 does not apply to the facts of the present case. Meanwhile Singh's counsel referred to Section 531(2) BNSS which states "Notwithstanding such repeal- (a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1973, as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhita had not come into force". 

He submitted that inquiry under Section 202 CrPC was completed in 2016 when pre summoning evidence was done. He said that this matter went all the way to the Supreme Court had was remanded to the stage of summons. "They have concealed an order where JNU has gone on record and filed an affidavit saying that there was no such Dossier in question. This order has never been put on record. They have concealed such facts," Singh's counsel said.

Farasat meanwhile said that when the petitioners had come to the high court in the first round the High Court had quashed the proceedings in March 2023. 

"They (Singh) went up in appeal against that order. That order on July 24 (2024) the Supreme Court set aside the high court order and said 65B etc had not been filed and its possibly a curable defect. Proceed again in the matter," Farasat said pointing to the Supreme Court's order. 

For context on July 24, 2024 the Supreme Court, while setting aside the Delhi High Court's 2023 order (which had quashed the summons against The Wire) had, without going into the merits remanded the matter back to the Magistrate to decide it afresh on the issue of issuance of summons. 

The Supreme Court had in its order said, "Though, arguments have been made at length, we are of the view that the High Court has certainly exceeded its jurisdiction. Section 204 of the Cr.P.C., as it then was, merely facilitates a Magistrate who, upon entertaining a private complaint, has to proceed further by issuing summons for which purpose he has to satisfy the existence of sufficient grounds. In such view of the matter, we have no hesitation in setting aside the impugned order...In such view of the matter, without expressing anything on merits, we set aside the impugned order by remitting the issue of summons to the Learned Magistrate after duly taking note of the publication said to have been made by the respondents. It is made clear that we have not expressed anything on merits. While doing so, the Learned Magistrate shall proceed with the matter afresh, without being influenced by any observation made by the High Court in the impugned judgment". 

Farasat thereafter said, "date of Supreme Court's order is July 24. Provision being relied upon by respondent is Section 531(2) BNSS...this Sanhita came in force on July 1, 2024. That is on June 30 some proceeding should have been pending against me...There was no proceeding pending against me because the proceeding had been quashed by the high court. The proceeding was revived only on July 24, 2024 by which time the Sanhita had already come in force and therefore Section 531 does not apply. For June 30 there had to be some proceeding under CrPC for it to continue. If the Supreme Court had remanded the matter on June 10, maybe my learned friend could have claimed that an inquiry was pending when the Sanhita came into force. But thats not the case here. Therefore they had to issue a notice, notice not being issued the proceedings are vitiated. Im asking for stay. If your ladyship remands it let them summon me back". 

Meanwhile Singh's counsel referred to judgments of various high courts and said that stage of inquiry was completed under Section 202 CrPC. He said that SLP is continuation of proceedings, and that is settled law.

After hearing the parties for some time, Justice Neena Bansal Krishna orally said, "Your main argument is that there is nothing pending. He is saying appeal is continuation of the proceedings and therefore you cannot say it is not pending. That is the short question...Arguments heard. Order in Chamber...There is only a technical objection whether BNSS would apply or CrPC. Im just confining myself to that".

Background

The complaint was filed by former JNU professor Amita Singh in 2016 wherein she has referred to an article written by the Wire's Deputy Editor Ajoy Ashirwad Mahaprastha in April 2016 titled “Dossier Call JNU "Den of Organised Sex Racket"; Students, Professors Allege Hate Campaign”. Singh had claimed that the publication imputed that she prepared a dossier allegedly depicting JNU as a “Den of Organised Sex Racket”. The complaint alleged that the Editor did not verify the authenticity of the Dossier and used it for monetary benefits of its magazine, defaming Singh's reputation. The summoning order was passed against the Wire's Editor Siddharth Bhatia and Deputy Editor Ajoy Ashirwad by a Delhi metropolitan court in 2017. Moreover, in the complaint, she also alleged that the accused persons had started a hate campaign against her to malign her reputation. 

Case title : FOUNDATION FOR INDEPENDENT JOURNALISM V/s AMITA SINGH and another petition