Underlining it was not at all defamatory to appear before a court of law,the Delhi High Court on Monday asked three senior Army officers,including Vice Chief of Army Staff Lt Gen S K Singh,to show up in person before a trial court on Thursday in connection with a criminal defamation complaint by Lt Gen (retd) Tejinder Singh who was accused of bribery and spreading misinformation in an Army press release this March.
Justice P K Bhasin also declined to stay the proceedings before a magistrate who last month issued summons against the three petitioners and two others,including former Army Chief General V K Singh and Lt Gen B S Thakur,Director General,Military Intelligence.
The magistrate had directed all five to appear on July 20 to face prosecution under penal provisions relating to defamation and committing a criminal act with intention or knowledge.
Disposing the petitions that had challenged the summon order,the High Court held that the three officers Lt Gen S K Singh,Maj Gen S L Narasimhan and Lt Col Hitten Sawhney can raise objections after appearing before the magistrate.
The trial court is at the stage of framing of notice against you. You can raise the issue of sanction even now. You dont have to ask for recalling the summons. So you appear before the court and move your plea. Appearing before a court of law is not at all defamatory. Why should I decide your plea for exemption from personal appearance before the magistrate? Justice Bhasin said when the petitioners sought to appear before the magistrate through their counsel and not in person.
Advocate Siddharth Aggarwal,appearing for all the petitioners,had contended that being serving Army officers,they could not have been summoned without obtaining prior sanction for their prosecution.
While issuing summons,the trial court had said they could not seek the benefit of Section 197 (2) of CrPC at this stage.
This legal provision prohibits a court from taking cognisance of any offence alleged to have been committed by any member of the armed forces in the discharge of official duty.
It had said a final decision regarding their entitlement to immunity under this provision could be decided only once the respondents enter appearance and lead evidence in their defence.
It is clear that their actions pertained to performing duties in discharge,or at least purported discharge,of official functions since they were following a hierarchical structure. Hence,sanction was a mandatory requirement before summoning them, Aggarwal said.
The court,however,referred to several case laws on the issue and noted that objections over lack of sanction could be raised at any stage of the trial.
At this,Aggarwal pointed to the magistrates May 18 order,saying it had already held that the petitioners were not entitled to immunity at this stage and,therefore,it would be difficult for them to go back and convince the magistrate.
But advocate Anil K Aggarwal,appearing for Tejinder Singh,said since it was a settled law that questions relating to sanction could be raised at any stage as it was the right of an accused,his client was ready not to raise objections over fresh applications in this regard.
The court then took their submissions on record and disposed the petitions by asking the magistrate to decide their applications over sanction afresh,without getting influenced by his previous views. The trial court,it added,will peruse the materials on records,including the Ministry of Defence file it had earlier called for,and pass orders in accordance with the law.