Thread by @lawbarandbench

#BombayHighCourt is hearing the appeal filed by #KanganaRanaut challenging defamation proceedings initiated by #JavedAkhtar before Andheri Magistrate.

Hearing before Justice RM Dere.

Advocate Rizwan Siddiquee appearing for Ranaut: Ranaut is in Mumbai shooting. The outcome of this hearing will decide whether she will go to Andheri or not.

@RizwanSiddiquee: I will make submissions on the merits of the case.
My argument is simply based on one point.

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Siddiquee: If magistrate has power to choose options, he cannot do so.

Court: Once you say it is magistrate's discretion, isn't it properly exercised?

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Siddiquee: No it is not. Magistrate had to satisfy the judicial discretion. The point is whether the order was mechanical. Statements of witnesses were required to be taken.

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Siddiquee: People staying beyond jurisdiction should not be harassed. Ranaut stays in Khar, Court has jurisdiction over Andheri.
In my case magistrate uses the word inquiry and not investigation.

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Siddiquiee: No material evidence brought on record by complainant. Material was brought by third party. Magistrate relied on that. Magistrate was duty bound to determine veracity of complaint.

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Siddiquee: It was one sided investigation in the name of inquiry. My witnesses were never examined. Material evidence by third party was never examined on oath. Magistrate should have ensured that no party is harassed.

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Court: come directly to the point. The discretion has to be exercised in specific manner.

Siddiquee refers to Birla corporation judgement.
He submits a compilation of 23 judgments.

Court: Cite your best judgmemt then.

Siddiquee: only point before the court is whether discretion was exercised properly.

Court: Only question is whether magistrate has exercised powers under section 202 properly.According to you he should have inquired into facts of case himself instead of directing investigation

Siddiquee: yes, he should have dealt as master of investigation. Cites a judgment which says magistrate should not just act as post office.

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Court: your point is small - on discretion.

Siddiquee: He has simpliciter went with Sec 200 and Sec 202 was just formality. It was biased investigation. My witness was not present.

Siddiquee: My long and short of argument is magistrate excercised power but without application of mind. He asked police to conduct inquiry for himself by delegation of powers to police.

Siddiquee: It was a one sided investigation. It is a defamation case. It is not so serious matter under criminal law. Magistrates usually follow certain process. There has to he presumption in favour of the accused. I don't know him.

Siddiquee: this started when Kangana Hrithik issue had started. Akhtar did not know Kangana but had called her to make them understand and she did not listen to him.

Court asks Siddiquee to not take names and stick to merits of the case.

Siddiquee: The investigation was one sided. This affects my rights under Article 20 and 21. The Magistrate relied on third party statement but statement of my witness was neither recorded by police nor magistrate.

Siddiquee: Magistrate has to be master of investigation and record reasons and cannot just pass orders mechanically.

Siddiquee is reading an NDPS case..

Court: You can't just read judgements where facts of the case are different from yours…

Siddiquee: Magistrate should have asked for statements of witnesses who were not present under 311 CrPC.

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Siddiquiee: Magistrate asked police to collect statements under some signatures.

Court: This is an incorrect allegation. He directed an enquiry. He did not ask for recording of statements.

Siddiquiee apologises.

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Siddiquee: This police case favours me. Even their witness said I was forced to say sorry. I have criminal intimidation and threat against me instead. The magistrate should not have relied on police statements.

Siddiquee: He should have called the witnesses himself. The very amendment of the 202 was defeated as the amendment was to see that people do not get harassed by defamation complaints.

Siddiquee concludes his submissions.

Advocate Jay Bharadwaj begins his submissions for Javed Akhtar.

@Javedakhtarjadu

Bharadwaj: This is a classic case of defamation going on even after filing of defamation case.

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Bharadwaj: Action of magistrate derives from excerpts of interview. The statement is exhaustive and signed by the complainant.

Bharadwaj: In order to conduct impartial inquiry, all people involved were summoned. However she (Ranaut) did not attend.

Bharadwaj shows the allegedly defamyory interview to the court. He goes through the various dates of court hearing since the case was filed in 2020.

Bharadwaj: In order to enquire, Ranaut was summoned to police station she went ahead and put a defamatory tweet.

Siddiquiee: She was summoned but she was at her native place. Her sister could have been called but was not.

Siddiquee: I have to rush to Andheri.

Court: There is no question of staying, I will continue in afternoon and finish.

Court breaks for lunch.

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Hearing continues.

Bharadwaj reads out Order passed by the Magistrate.

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Order: At the stage of summoning, the Court is supposed to consider the allegations in the complaint. and in the present case, the Magistrate considered the statement of the complainant, the report of the police.

Court: I am only on the point whether judicial mind was applied or not.

Bharadwaj reads out provisions 200 and 202 crpc.

Court: His submission that Magistrate has three options and he has used the first option.

Bharadwaj is reading a judgment..

Court: you are reading the ratio but the facts are important too.

Bharadwaj: Magistrate has relied not just the police report, he has relied upon the statement, the video,

Bharadwaj: Final submission, my learned friend and I have taken a mutual date of September 14, 2021 before the Magistrate court today.

Bharadwaj concludes his submissions.

Siddiquee: Section 202 is post cognizance..

Court: No read the language, it is not post cognizance..

Siddiquee: But this material evidence has been brought on record by a third party.. he could have taken cognizance based on that..

Court: So the limited question is whether the police should have been directed to make inquiry or not? The discretion..

Siddiquee: Yes.

Court: Most important reading is the bare reading of the section.

Siddiquee: The reasons for appointing of police for inquiry was not recorded in the order… that was required.

Bharadwaj: The section does not mention so..

Siddiquee submits his written notes..

Court: Why is this required?

Siddiquee: because this is a difficult point of law.

Court: It is a very simple straihtforward question.

Court: Okay I am reserving for orders. Keeping it on Sept 9, 2021.