Bombay High Court
Ambar Koiri vs Serum Institute Of India Pvt. Ltd. ... on 5 June, 2023
Bench: R. I. Chagla
2023:BHC-OS:4317
IAL.33254.22 in SL.33253.22 wt..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 33254 OF 2022
IN
SUIT (L) NO. 33253 OF 2022
Serum Institute of India Pvt. Ltd. & Anr. ... Applicants/Plaintiffs
In the matter between
Serum Institute of India Pvt. Ltd. & Anr. ... Plaintiffs
Versus
Yohan Tengra & Ors. ... Defendants
WITH
INTERIM APPLICATION (L) NO. 3344 OF 2023
IN
SUIT (L) NO. 33253 OF 2022
Ambar Koiri ... Applicant/Orig.
Defendant No.3
In the matter between
Serum Institute of India Pvt. Ltd. & Anr. ... Plaintiffs
Versus
Yohan Tengra & Ors. ... Defendants
WITH
INTERIM APPLICATION (L) NO. 39735 OF 2022
IN
SUIT (L) NO. 33253 OF 2022
Waghmare 1/48
::: Uploaded on - 05/06/2023 ::: Downloaded on - 08/06/2023 08:55:13 :::
IAL.33254.22 in SL.33253.22 wt..doc
Ambar Koiri ... Applicant/Orig.
Defendant No.3
In the matter between
Serum Institute of India Pvt. Ltd. & Anr. ... Plaintiffs
Versus
Yohan Tengra & Ors. ... Defendants
WITH
INTERIM APPLICATION (L) NO. 1146 OF 2023
IN
SUIT (L) NO. 33253 OF 2022
Ambar Koiri ... Applicant/Orig.
Defendant No.3
In the matter between
Serum Institute of India Pvt. Ltd. & Anr. ... Plaintiffs
Versus
Yohan Tengra & Ors. ... Defendants
Mr. Aspi Chinoy, Senior Advocate, a/w Mr. Chetan Kapadia,
Mr. Hitesh Jain, Mr. Yuvraj Sing, Monisha Mane Mr. Bijal Vora, Pranav
Nair i/b Parinam Law Associates, for Plaintiff Nos. 1 and 2 in
S(L)/33252/2022/Applicants in IAL/33254/2022.
Mr. C. Keswani a/w Mr. Dinesh Pednekar i/b Shailesh Poria i/b
Economic Laws Practice, for Defendant No 6 in
S(L)/33253/2022 and in IA(L)/33254/2022.
Mr. Vedchetan Patil a/w Saransh Jain, Sneha Dey, Sunayana Kashid for
Defendant No.7.
Waghmare 2/48
::: Uploaded on - 05/06/2023 ::: Downloaded on - 08/06/2023 08:55:13 :::
IAL.33254.22 in SL.33253.22 wt..doc
Ishwarlal Agarwal a/w Dipali Ojha, Meena Thakur,
Pratik Jain Saklecha, Snehal Surve, Hania Shaikh, Sourav
Khanna, Vikas Pawar, Sohan Agate, Samkit Shah for Defendant
No. 1 in S(L)/33253/2022.
Mr. Vijay Kurle and Tanveer Nizam a/w Ms. Dipali Ojha, Meena
Thakur, Mr. Pratik Jain Saklecha, Snehal Surve, Hania
Shaikh, Sourav Khanna, Sohan Agate, Vikas Pawar, Samkit
Shah for Defendant No.2 in S(L)/33253/2022.
Mr. Nilesh C. Ojha i/b Abhishek Mishra a/w Dipali Ojha,
Meena Thakur, Pratik Jain Saklecha, Snehal Surve, Hania
Shaikh, Sourav Khanna, Sohan Agate, Vikas Pawar, Samkit
Shah for Defendant No.3 in S(L)/33253/2022.
CORAM : R.I. CHAGLA, J.
RESERVED ON : 13th FEBRUARY, 2023.
PRONOUNCED ON : 5th JUNE, 2023.
JUDGMENT :
1 By the present Interim Application, the Applicants/Plaintiffs
are seeking to restrain the Defendant Nos.1 to 5, (themselves and
through their servants, agents, assigns and/or any person claiming by or
through them) from making and/or publishing and/or reproducing
and/or circulating and/or speaking and/or communicating, any
derogatory and defamatory statements i.e., the defamatory videos and the
defamatory contents as mentioned in Exhibits E to K of the Plaint and/or
any like nature in any medium including television, print media and/or
the internet and/or whatsapp in any manner whatsoever. Further
Waghmare 3/48
IAL.33254.22 in SL.33253.22 wt..doc
consequential relief has been sought inter-alia against Defendant Nos.1 to
5 to forthwith delete and/or remove the defamatory videos and the
defamatory contents at Exhibits E to K of the Plaint from their respective
websites and social media platforms and to issue an unconditional
apology stating that the defamatory contents were baseless,
unsubstantiated and unwarranted. The relief has also been sought
against YouTube and Twitter and other social media platforms in
particular, Defendant Nos.6 and 7 or social media accounts, in like nature
to the aforementioned relief.
2 The Plaintiffs have filed the defamatory Suit against the
Defendants in respect of statements/contents/posts uploaded on the
websites/links/twitter handles of the Defendants which they claim are per
se defamatory and referred to as Defamatory Content Nos.1 to 6, in
paragraph 15 (f) to 15 (p) of the Plaint. In the tabular form at paragraph
15 (p) of the Plaint, the Plaintiffs have set out as one of Defamatory
Contents, being Defamatory Content No.6 which is as under :
Sr. No. Date of Post Posts
1. 2nd October 2022 "Our taxpayer money is being used to
murder millions! High time we shut
down the @SerumInstIndia
#arrestadarpoonawalla..."
Waghmare 4/48
IAL.33254.22 in SL.33253.22 wt..doc
2. 30th September 2022 "ChaloPune
#ArrestAdarPoonawala..."
3. 28th September 2022 "Arrest Adar Poonawalla..."
4. 26th September 2022 "A Humdust has been issued by
Bombay High Court for Adar
Poonawala for Dr. Snehal Lunawat's
vaccine murder case."
3 According to the Applicants/Plaintiffs these statements/
contents/posts which the Defendants have uploaded on their
websites/links/twitter handles make false and defamatory statements
against the Applicants/Plaintiffs.
4 Plaintiff No.1 is a Company incorporated under the
Company's Act, 1956 and Plaintiff No.2 is the Chief Executive Officer
(CEO) of Plaintiff No.1. The father of Plaintiff No.2 viz. Dr. Cyrus
Poonawalla founded a registered partnership firm under the name and
style of "Serum Institute of India", to carry on the business, inter alia, as
manufacturer and trader of vaccines at affordable prices. In or about May
1984, Plaintiff No.1 was promoted by Dr. Cyrus Poonawalla to take over
the business of the partnership firm "M/s. Serum Institute of India" and
to carry on the business of the said firm.
Waghmare 5/48
IAL.33254.22 in SL.33253.22 wt..doc
5 The Plaintiffs have in paragraph 3 of the Plaint stated that
Plaintiff No.1 is currently ranked as India's No.1 biotechnology company,
manufacturing highly specialized lifesaving biologicals like vaccines using
cutting edge genetic and cell-based technologies, antisera and other
medical specialties. The Plaintiff No.1 is well-known not only in India but
across the world and is one of the few private limited companies with a
tremendously high turnover and has come to achieve this position with its
own funds and resources and without public participation in equity. The
Plaintiffs have thereafter in paragraph 4 of the Plaint stated that they are
recipients of various awards and accolades and have received worldwide
recognition for the work done by them in the field of medicine and
pharmaceuticals. They have set out some of the awards and recognition
received by Plaintiff No.1. They have further set out the qualifications of
Plaintiff No.2 as well as the awards and accolades received by Plaintiff
No.2, for his contribution in the field of medicine, in paragraph 5 of the
Plaint.
6 The Plaintiffs have stated that Defendant No.1 claims to be a
social media influencer and uses his YouTube channel called 'Anarchy for
Freedom India' (Defendant No.2) to post several videos. Defendant No.1
uses his twitter handle that goes by his own name 'Yohan Tengra
Waghmare 6/48
IAL.33254.22 in SL.33253.22 wt..doc
@ytengra' to post various content. Defendant No.3 claims to be a
member of the Committee of Awaken India Movement and has been
appearing in the alleged defamatory videos as mentioned in the Plaint.
Defendant No.4 is an online news portal which has re-shared the alleged
defamatory content by Defendant No.3 as set out in the Plaint. Defendant
No.5 is John Doe/ Mr. Ashok Kumar whose co-ordinates and addresses are
unknown to the Plaintiffs who are creating/publishing/uploading/
recirculating/reproducing the alleged offending material. Defendant
Nos.6 and 7 are social media intermediaries which primarily or solely
enable online interaction and allow the users to create, upload, share,
diseminate, modify or access information using its services.
7 It is necessary to give a brief background of the facts which
has led to the filing of the present Suit and Interim Application.
8 Plaintiff No.1 had manufactured a vaccine named
'COVISHIELD'. The vaccine had been manufactured on the patented
Oxford-Astrazeneca technology. The reason for manufacture of the
vaccine and the approvals obtained from the Drug Control General of
India from time to time, are set out in paragraphs 15(a) and 15(b) of the
Plaint. The Plaintiffs have stated that the entire world was facing and
Waghmare 7/48
IAL.33254.22 in SL.33253.22 wt..doc
continues to suffer the Covid-19 pandemic which infected more than 61
crores people in the world and claimed over 65 lakh lives. The Indian
scientists had also become part of the global fight against the decease and
Indian Companies had been working on the said vaccines for Covid-19,
thus joining global efforts to find a quick preventive for the deadly
infection which had been spreading rapidly across the world.
9 The Plaintiffs have further stated in paragraph 15 (c) of the
Plaint that Plaintiff No.1 upon manufacturing the said vaccine named
'Covishield' has been recognized for administering 1.50 billion doses of
said vaccine in India itself, which was the highest amongst all vaccinations
for corona virus introduced till date. Plaintiff No.1 worked tremendously
towards developing and producing almost 250 million doses of vaccines
per month.
10 One Dilip Lunawat filed Writ Petition No.5767 of 2022
before this Court against the Plaintiffs and a few others. The Writ Petition
had been filed seeking compensation and other reliefs on the ground that
the daughter of the Petitioner had allegedly suffered from adverse effects
of immunization of Covishield vaccine which resulted in her death. On
26.08.2022, this Court passed an order issuing notice to the Plaintiff No.1
Waghmare 8/48
IAL.33254.22 in SL.33253.22 wt..doc
as well as other Respondents in Writ Petition No.5676 of 2022, which was
made returnable on 17.11.2022. By the said order this Court recorded
that 'Hamdast' was allowed.
11 The Plaintiffs claim to have on 26.09.2022 come across
tweets posted online on twitter and other websites/links of the
Defendants wherein they claim that false, disparaging and malicious
allegations and statements against the Plaintiffs were being published and
circulated. This has been referred to as Defamatory Content Nos.1 to 6 in
paragraphs 15(f) to (p) of the Plaint. These include a video by Defendant
No.3 re-shared on Defendant No.4's YouTube channel, showing Plaintiff
No.2 being hung to death by a rope. Further, on 28.09.2022, Defendant
No.1 through his YouTube channel, Defendant No.2 i.e. 'Anarchy for
Freedom India' had uploaded a video calling the Plaintiffs 'criminals',
'murderers' and thereby encouraging the public at large to approach the
location of Plaintiff No.1 in 50 to 100 cars on 01.10.2022 to handover the
'Hamdust' that was issued to Plaintiff No.1.
12 Defendant No.1 on 29.09.2022 through his YouTube channel,
titled 'Anarchy for Freedom India' is seen making an appeal to the public
at large to gather at a certain location in Pune to handover the 'Hamdust'
Waghmare 9/48
IAL.33254.22 in SL.33253.22 wt..doc
to Plaintiff No.1. Defendant No.1 in the said video is claimed to have
made defamatory and derogatory statements claiming that the Plaintiffs
have allegedly murdered people openly and taken law into their own
hands. The Plaintiffs have also been termed as "criminals'.
13 Defendant No.1 on 30.09.2022 through his YouTube channel
is seen inciting anger and hatred among the general public against the
Plaintiffs by influencing them that the Plaintiffs have allegedly committed
a murder. Defendant No.1 had also circulated a video by whatsApp
whereby it appears that Defendant No.1 is gathering people in huge
crowds and is encouraging them to chant that Plaintiff No.2 be arrested
and Plaintiff No.1 shut down.
14 Defendant No.1's posts on his twitter handle forms part of
Defamatory Content No.6, which has also been reproduced hereinabove
and includes a post on 02.10.2022 to the effect that tax payer money is
being used to murder millions and Plaintiff No.1 be shut down.
15 On 01.10.2022, the Plaintiffs addressed complaints to the
Commissioner of Police, Pune and Senior Inspector, Hadapsar Police
Station, against Defendant No.3's group i.e. Awaken India Movement
seeking precautionary measures against their team in respect of the illegal
Waghmare 10/48
IAL.33254.22 in SL.33253.22 wt..doc
march against Plaintiff No.1 to incite hatred and enmity.
16 The Plaintiffs have thereafter filed the present Suit on
17.10.2022 for the aforementioned relief.
17 Defendant No.3 has in the present Suit filed an Interim
Application (L) No.39735 of 2022 for recording a finding under Section
340 of Cr.P.C. that the Plaintiffs described as accused have filed a false
affidavit in this Court that the Covishield vaccines are completely safe.
Defendant No.3 has placed reliance upon the Writ Petition filed by Dr.
Lunawat and claimed that the death of Dr. Snehal Lunawat was due to the
side effects of Covishield. Defendant No.3 has claimed that there is
deliberate and malafide suppression of relevant material facts which
would reveal that there are many deaths found due to side effects of
Covishield vaccines, including the death of Dr. Snehal Lunawat and that
many European countries have banned the said vaccines due to the death
causing side effects. It is contended that this material has been suppressed
by the Plaintiffs in order to obtain an order in the Interim Application
filed by them in the present Suit by filing false and misleading affidavit
and thereby have abused the process of the Court and committed
contempt of Court. Consequential relief has been sought for prosecution
Waghmare 11/48
IAL.33254.22 in SL.33253.22 wt..doc
of Directors and responsible Officers of Plaintiff No.1 under Section 340
of Cr.P.C. and other relief as per Section 340 and 340(1) of the Cr.P.C. as
well as holding the Plaintiffs guilty of contempt under Section 12 of the
Contempt of Courts Act r/w Article 215 of the Constitution of India. This
Interim Application has been filed together with Interim Application (L)
No.3344 of 2023 which is also for relief of recording a specific finding as
per Section 340(1) of the Cr.P.C. and similar relief is sought for as in
Interim Application (L) No.39735 of 2022. There is an Interim
Application No.1146 of 2023 filed by Defendant No.3 seeking a striking of
the Plaint under Order VII Rule 11 of the Code of Civil Procedure and for
dismissal of the Suit on ground of suppression and false statements on
oath by the Plaintiffs. At the outset of the hearing, this Court had with
the consent of the parties, proceeded to hear all the Interim Applications
filed in the present Suit together.
18 Mr. Aspi Chinoy, learned Senior Counsel appearing for the
Plaintiffs has submitted that the said vaccine "Covishield" was developed
and manufactured by Plaintiff No.1 and when clinical trial of AZD1222
(ChAdOx1 nCoV-19) vaccine was conducted, it was given to healthy
adults in the United Kingdom before the commencement of the research
study at Plaintiff No.1. In phase I and II of the clinical trials conducted in
Waghmare 12/48
IAL.33254.22 in SL.33253.22 wt..doc
United Kingdom, there were no serious adverse reactions. The United
Kingdom Medicines and Healthcare products Regulatory Agency (MHRA)
had approved Astra Zeneca vaccine on 30.12.2020. The Astra Zeneca
vaccine also received the conditional authorization from European
Medicines Agency (EMA) in January, 2021.
19 Mr. Chinoy has further submitted that considering the robust
immune response to the vaccine, Plaintiff No.1 applied to the Government
of India seeking permission to conduct further clinical trials in India.
After an evaluation of the data generated on the vaccine in phase I and II
of the Oxford University trial of ChAdOx1 nCoV-19 (dubbed as Covishield
in India), the Drugs Controller General of India gave an approval to
Plaintiff No.1 to perform Phase II and III clinical trials based on the
recommendations of the Subject Expert Committee (SEC). Thereafter,
Plaintiff No.1 in collaboration with Indian Council of Medical Research
(ICMR) commenced observer blind, randomized, controlled Phase II and
III clinical trials of Covishield vaccine at 15 different centres, across the
Country. No causally related serious adverse event was recorded during
these clinical trials. The safety, efficacy and immunogenicity of the
Covishield vaccine was established in Phase II and III studies. Upon the
Plaintiff No.1 submitting the safety, immunogenicity and efficacy data of
Waghmare 13/48
IAL.33254.22 in SL.33253.22 wt..doc
Phase II/III clinical trials of Astra Zeneca vaccine carried out in U.K.,
Brazil and South Africa, permission for "restricted use in emergency
situation" was granted on 02.01.2021 following which the said vaccine
was included in the National Covid-19 vaccination program which
commenced on 16.01.2021.
20 Mr. Chinoy has submitted that after a further rolling review
of clinical trial data, the Covishield vaccine was approved for regular use
on 27.01.2022. The Plaintiff No.1 has administered 1.50 billion doses
(1500 million doses) of Covishield vaccine in India (of the total of 2019
million doses administered) till the end of 2022.
21 Mr. Chinoy has referred to the Committees been set up for
Adverse Events Following Immunization (AEFI) which comprised of State
level and National level AEFI Committees. These Committees have
clinical experts, such as medical specialists, forensic medical specialist and
public health specialists and representatives of WHO and UNICEF and
carried out documentation, investigation and causality assessment. Mr.
Chinoy in this context has referred to the affidavit of Union of India which
has been annexed to the Plaintiffs' affidavit in rejoinder at page 209 of the
Interim Application and portions of which have also been extracted by
Waghmare 14/48
IAL.33254.22 in SL.33253.22 wt..doc
Defendant No.3 in his affidavit in reply. Mr. Chinoy has submitted that in
the Union of India's affidavit which was filed in the case of ' Rachana
Gangu and Another vs. Union of India' before the Supreme Court, the
Union of India had referred to the finding of the Committee for AEFI viz.
"that there was a very miniscule but definitive risk of Thromboembolic
events. The reporting rate of these events in India is around 0.61 million
doses, which is lower than 4 cases/million reported by U.Ks Regulator
Medical and Health Regulatory Authority (MHRA)". The Union of India
has accordingly stated that the occurrence of AEFI was and is still a very
rare event, at a far less frequency than that observed in Europe. The
Union of India has referred to the Advisory dated 17.05.2021 and the
statement of WHO to state that a causal relationship between the Astra
Zeneca/Covishield vaccine and Thrombosis with Thrombocytopenia
Syndrome (TTS) is considered plausible although the biological
mechanism for the syndrome is being investigated. The available AEFI
data from India does not suggest an overall increase in clotting conditions
such as deep venous thrombosis or pulmonary embolism following covid-
19 vaccines. Reported rates of thrombo embolic events following covid-
19 vaccines are in line with expected number of diagnoses of these
conditions. Both conditions occur naturally and are not uncommon. The
Waghmare 15/48
IAL.33254.22 in SL.33253.22 wt..doc
Union of India has stated that "covishield, the Covid-19 vaccine, continues
to have a definite positive benefit risk profile, with tremendous potential
to mitigate the severity of infections and reduce deaths due to Covid-19
across the world and in India. Over 15.3 crore doses of Covishield have
been administered as of 08.05.2021 in India".
22 Mr. Chinoy has referred to paragraph 35 of the Union of
India's affidavit which states as under :
"35. It may be noted that as on 30.09.2022 there have been a
total of 26 AEFI cases of TTS reported in India, out of which in
14 cases, the individual recovered after hospitalisation and in
12 cases the individual passed away. The reporting rate of TTS
in India is .001 per one lakh doses administered making it an
extremely rare event".
23 Mr. Chinoy has thereafter referred to the defamatory content
Nos.1 to 6 set out in the Plaint as well as annexed at Exhibits E to K to the
Plaint and which the Plaintiffs came across on 26.09.2022 from the tweets
posted on twitter and videos uploaded on YouTube by Defendant Nos.1
and 3. He has submitted that Defendant Nos.1 and 3 have falsely and
maliciously stated :
Waghmare 16/48
IAL.33254.22 in SL.33253.22 wt..doc
i) that the Plaintiffs had "murdered millions" by their
vaccines;
ii) that Plaintiffs 1 and 2 were accordingly criminals and
murderers;
iii) that Plaintiff No.1 should accordingly be shut down and
iv) that Plaintiff No.2 should be arrested and jailed for
murder.
24 Mr. Chinoy has submitted that the transcripts/English
translations of the videos uploaded and the tweets posted have been
annexed in full at Exhibits E to K to the Plaint and the aforementioned
defamatory and malicious statements made in each of the said videos and
tweets have been separately highlighted and extracted in the Plaint and
the Interim Application. Mr. Chinoy has submitted that these defamatory
statements have been made inspite of the aforementioned affidavit of the
Ministry of Health and Family Welfare of the Union of India in Rachana
Gangu (supra) having referred to a noted scientific paper in the journal
Lancet which estimated that the access to/ use of Covid-19 vaccines is
estimated to have prevented at least 4 million deaths in India. Further,
reference is made to the case of Jacob Puliyel wherein the Supreme Court
Waghmare 17/48
IAL.33254.22 in SL.33253.22 wt..doc
has referred to the "National AEFI Surveillance Secretariat" and setting up
of a 'well defined mechanism for collection of data relating to adverse
events that occur due to Covid vaccines', and had rejected the
submission/allegation 'that the surveillance system of AEFI's in this
Country is faulty and the correct figures of those who have suffered any
side effects, severe reactions or deaths post inoculation have not been
disclosed'.
25 Mr. Chinoy has referred to the figures prior to causation
analysis and which shows that for the period till November, 2022, a total
of 219.86 crore (2198.60 million) doses of Covid vaccines have been
administered in the Country. During this period a total of 92,114 AEFI
cases (0.0042%) have been reported, of which 89,332 (0.041%) were
minor AEFI cases and a total of 2782 cases were serious and severe AEFI's
(0.00013%). He has submitted that in view of the figures being prior to
causation analysis, any such severe AEFI's including death cannot be
attributed to vaccination till the same is causally assessed by the National
AEFI Committee.
26 Mr. Chinoy has submitted that there have been a total of 26
AEFI cases of TTS (Thrombosis and Thrombocytopenia Syndrome)
Waghmare 18/48
IAL.33254.22 in SL.33253.22 wt..doc
reported in India, out of which in 14 cases the individual had recovered
after hospitalization and in 12 cases the individuals had passed away. The
reporting rate of TTS in India is .001 per one lakh doses administered,
making it an extremely rare event.
27 Mr. Chinoy has submitted that the defamatory statements
made by Defendant Nos.1 to 4 wherein the Plaintiffs have been referred
to as having "murdered millions" by making available their Covishield
vaccine and that the Plaintiffs are consequently "murderers" and
"criminals" and Plaintiff No.1 should be shut down and Plaintiff No.2
arrested and put in jail, are ex facie false, totally baseless, defamatory and
have been made recklessly and malafide. Defendant No.3 has not
referred to and produced any material/basis whatsoever to justify such ex
facie false and defamatory allegation that the Plaintiffs have "murdered"
"millions" by making available the 1st Plaintiff's Covishield vaccine for the
Governments vaccination program. He has submitted that Defendant
No.3 in the affidavit in reply, has only referred to four civil writ
proceedings and one criminal writ proceeding filed by individual
Petitioners claiming compensation for their relatives/children who have
died post vaccination. Defendant No.3 has in his affidavit in reply himself
referred the aforementioned affidavit dated 23.11.2022 filed by Dr. Veena
Waghmare 19/48
IAL.33254.22 in SL.33253.22 wt..doc
Dhawan, Additional Commissioner (Immunization) Ministry of Health
and Family Welfare before the Supreme Court in Rachana Gangu (supra).
28 Mr. Chinoy has submitted that the complete absence of any
material to support/justify the Defendants' defamatory allegations of the
Plaintiffs vaccine having murdered millions and the facts stated by the
Union of India in the aforementioned affidavit which has also been relied
upon by Defendant No.3 in the affidavit in reply establish the false,
baseless and malafide nature of the defamatory allegations and negate
any possibility of the Defendants being able to justify these allegations at
any stage.
29 Mr. Chinoy has referred to the allegations made in the affidavit
in reply of Defendant No.3 which includes that Canada's Health
Department having in November, 2021 issued a warning about
'Thrombocytopenia' being a potential side effect of the Astra Zenica
Covid-19 vaccine and WHO in July, 2021 having issued a warning about
Guillain Barre Syndrome (GBS) being caused due to Covishield. He has
submitted that these allegations do not in any way justify or support the
baseless/false allegations made by Defendant Nos.1 to 4. He has referred
to the statement of 26.07.2021 of WHO which in fact records that cases
Waghmare 20/48
IAL.33254.22 in SL.33253.22 wt..doc
may occur co-incidentally following vaccination. For example rare cases
of GBS have been observed following seasonal influenza vaccines and
vaccines to protect against shingles, but it is not known if the vaccines
cause GBS. Further, the European Medicines Agency had issued a
statement that 'GBS be listed as a very rare side effect of Covid-19
vaccine'. WHO statement itself concludes that the potential benefits of
both the Janson and Astra Zenica Covid-19 vaccines continue to outweigh
any potential risk of GBS, particularly given the increase in the more
transmissible Delta Variant.
30 Mr. Chinoy has submitted that the allegation made in the
affidavit in reply of Defendant No.3 that since March, 2021 around 21
European countries have banned the Covishield Astra Zenica vaccine is
misleading. He has submitted that Astra Zenica's vaccine was only paused
as a temporary measure and it was never banned in any European
Country.
31 Mr. Chinoy has submitted that it is well settled including in
the decision of this Court in Shree Maheshwar Hydel Power Corporation
Ltd. vs. Chitroopa Palit and Anr.1 which has referred to the earlier
decisions of this Court and the judgments of the Supreme Court in S.
1 2003 SCC Online Bom 702
Waghmare 21/48
IAL.33254.22 in SL.33253.22 wt..doc
Rangarajan vs. P. Jagjivan Ram2, and R. Rajagopal vs. State of Tamil
Nadu3; that in India a mere plea of justification would not be sufficient for
denial of interim relief. The Defendants, apart from taking a plea of
justification would have to show that the statements were made bonafide
and were in public interest, and that the Defendants have taken
reasonable precaution to ascertain the truth, and that the statements were
based on sufficient material which could be tested for its veracity. The
Courts are very much entitled to scrutinize the material tendered by the
Defendants so as to test its veracity and to find out whether the said
statements were made bonafide and that whether they were in public
interest. Therefore, in India, even at the interlocutory stage, the Court is
very much entitled to look into the material produced by the Defendants
for the plea of justification, so as to test its veracity with regard to the
allegations, alleged to be defamatory.
32 Mr. Chinoy has submitted that Defendant Nos.1 to 4 by their
making false and reckless allegations and despite material which
conclusively negates and establishes the falsity of the same, the
Defendants have in their affidavit in reply reiterated the false and
defamatory statements and intend to carry on making such false
2 (1989) 2 SCC 574
3 (1994) 6 SCC 632
Waghmare 22/48
IAL.33254.22 in SL.33253.22 wt..doc
defamatory statements. Moreover, Defendant No.3 has falsely alleged
that millions of vaccine deaths have occurred in the Country. This is
prejudicial to public interest and public health in as much as it is a false
and malafide attempt to malign the Government's National Covid vaccine
Program and to spread vaccine hesitancy. Accordingly, the Plaintiffs have
made out a strong case for grant of interim relief.
33 Mr. Nilesh Ojha, learned Counsel appearing for Defendant
No.3 has made submissions on behalf of the Defendants. He has
submitted that there is suppression of material facts in the
pleadings/affidavits filed by the Applicants/Plaintiffs and for which
proceedings under Section 340 of the Cr.P.C. be instituted against them.
He has submitted that without prejudice to this contention, the Plaintiffs
have failed to provide any basis for grant of interim relief. He has
submitted that there are no details given by the Plaintiffs of any witness in
whose estimation the image of the Plaintiffs is lowered. He has in that
context relied upon the decision of the Supreme Court in Subramanian
Swamy vs. Union of India4.
34 Mr. Ojha has submitted that there is gross suppression of
material facts including the Writ Petition (C) No.5767 of 2022 filed by
4 (2016) 7 SCC 221
Waghmare 23/48
IAL.33254.22 in SL.33253.22 wt..doc
Dilip Lunawat. There is also suppression of Criminal Writ Petition
No.6159 of 2021 filed on 23.11.2021 by Smt. Kiran Yadav vs. State of
Maharashtra and Anr. calling the Plaintiffs mass murderer and seeking
Narco Test and death penalty for the Plaintiffs.
35 Mr. Ojha has referred to various articles in the news
published in India by biotech express on 30.11.2021; Indian Bar
Association on 25.11.2021 and Published Worldwide in Children Health
Defence (USA) on 20.01.2022. He has submitted that in these articles,
specific reference is made to the Plaintiffs as mass murderers. He has
submitted that despite the very same statements which the
Applicants/Plaintiffs have referred to as defamatory, the Plaintiffs have
failed to proceed against those publications.
36 Mr. Ojha has further submitted that the Plaintiffs have
suppressed, twisted and concealed facts and made submissions during the
course of the hearing that Defendant No.1, Defendant No.3 and their
NGO Awaken India Movement have no connection with the Court case
filed by Dilip Lunawat. This is contrary to the record which shows that
these Defendants are pursuing cases of Criminal Prosecution and mass
murder charges against the Plaintiffs and other co-accused.
Waghmare 24/48
IAL.33254.22 in SL.33253.22 wt..doc
37 Mr. Ojha has submitted that there should be a meaningful
reading and not casual reading of the Plaint. Failure to make out a single
cause of action is a sufficient ground to dismiss the Suit under Order VII
Rule 11 of the C.P.C. He has submitted that in the present case no cause
of action has been made out in the Plaint. He has referred to the decision
of the Supreme Court in Shree Surya Developers & Promoters vs. N.
Sailesh Prasad 5 in this context.
38 Mr. Ojha has submitted that the Plaintiffs are misusing the
process of this Court as an instrument to harass and create pressure upon
witnesses and complainants. He has referred to the decision of this Court
in SNP Shipping Services Private Limited vs. World Tanker Carrier
Corporation,6 in this context. This Court had held that though so-called
libelous articles have been published, no action has been so far taken
either against the publications or the authors of the articles. Accordingly,
it was held that the Suit was frivolous, vexatious and scandalous and
abuse of the process of the Court.
39 Mr. Ojha has submitted that the present Suit is not
maintainable as proper remedy lies under Article 215 of the Constitution
5 (2022) 5 SCC 736
6 (1999) SCC OnLine Bom 584
Waghmare 25/48
IAL.33254.22 in SL.33253.22 wt..doc
of India. He has submitted that since the main grievance of the Plaintiffs
is regarding misreporting of the proceedings before the Division Bench in
the case of death of Dr. Snehal Lunawat, the Constitution Bench of the
Supreme Court has in the case of Sahara India Real Estate Corporation
Limited vs. SEBI,7 held that the proper remedy is to file a Petition under
Article 215 of the Constitution before the Division Bench.
40 Mr. Ojha has referred to the decision of the Delhi High Court
in Tata Sons Limited vs. Greenpeace International ,8 wherein the Delhi
High Court has held that the Courts, the world over, have set a great value
to free speech and its salutary catalyzing effect on public debate and
discussion on issues that concern people at large. The issue, which the
Defendants in that case sought to address, was considered to be one of
public concern. The Court was of the opinion that granting an injunction
would freeze the entire public debate on the effect of the port project on
the Olive Ridley turtles' habitat. That, plainly would not be in public
interest; it would most certainly be contrary to established principles.
Reliance has been placed on the words of Walter Lippman viz. "The theory
of the free press is not that the truth will be presented completely or
perfectly in any one instance, but that the truth will emerge from free
7 (2013) 10 SCC 603
8 (2011) SCC OnLine Del 466
Waghmare 26/48
IAL.33254.22 in SL.33253.22 wt..doc
discussion".
41 Mr. Ojha has submitted that the present Suit filed by the
Plaintiffs is nothing but an attempt to obstruct the fundamental duties of
the Defendants and therefore, the Plaintiffs are liable to be saddled with
heavy cost and in that context has relied upon National Stock Exchange
of India Limited vs. Moneywise Media Private Limited 9, Indirect Tax
Practitioners' Association vs. R.K. Jain10 and Aniruddha Bahal vs. State11.
42 Mr. Ojha has further referred to the judgment of this Court in
the case of Essel Infraprojects Ltd. vs. Devendra Prakash Mishra & Ors.12
in support of his submission that it was not adequate for the
Applicants/Plaintiffs merely to annex the entire article/statement/report/
transcript. Where the Plaintiff complains of a book or long article, he
must specify the passages which he alleges to be defamatory. Rather than
merely pleading the whole book or article, the defamatory words must be
set out in the Plaint. Mr. Ojha has submitted that in the present case the
Plaintiff has failed to set out the defamatory words in the Plaint.
9 MANU/MH/2384/2015
10 (2010) 7 SCC 2821
11 2010 (110) DRJ 102
12 (2015) AIR Bom. R 482
Waghmare 27/48
IAL.33254.22 in SL.33253.22 wt..doc
43 Mr. Ojha has relied upon judgments in Prabhakaran vs.
Gangadharan13,; Joy Anto vs. C.R. Jaison & Ors.14, and Radhakrishnan
Gurusamy & Ors. vs. M.R. Vinit Srivastava15 and Shivaji Rao Gaikwad vs.
S. Mukunchand Bothra16, which have held that filing a pleadings in a Civil
Court constitutes Publication under Section 500 of I.P.C. and is actionable
under Sections 499/500 of I.P.C. This is in context of Mr. Ojha's
submission that the Writ Petition pending in this Court namely Writ
Petition filed by Dilip Lunawat, similar statements which are alleged in
the present case to be per se defamatory had already been
made/published and accordingly, the Defendants should not be restrained
from making same/similar statements.
44 Mr. Ojha has also relied upon the decision of the Delhi High
Court in Mahesh Murthy vs. Pooja Chauhan & Ors.17 and Kailash vs.
Vijendra Gupta18 in support of his submission that there can be no
restraint orders on grounds of defamation in that the Defendants have
referred to material to support/ justify the statements and hence, the
Defendants could not be acting malafide.
13 (2006) SCC OnLine Ker 302
14 Manupatra/KE/0632/2021
15 Manu/TN/3491/2021
16 2018 SCC OnLine Mad 3541
17 MANU/DE/1346/2020
18 (2022) SCC OnLine Del 679
Waghmare 28/48
IAL.33254.22 in SL.33253.22 wt..doc
45 Mr. Ojha has referred to the articles published across the
world wherein there is an appeal to prohibit the use of such vaccines. He
has submitted that the paper published in Lancet which is relied on by the
Plaintiffs is a mathematical model and not real data. The said article is in
fact prepared and created on the sponsorship given by the partner of the
Plaintiffs i.e. Bill & Milind a Gates Foundation.
46 Mr. Ojha has submitted that the record shows that the
Plaintiffs are still selling their deadly vaccine without publishing all the
side effects. The Plaintiffs in the Plaint have built their case on the
premise that the vaccines are completely safe. It is nowhere mentioned
that the vaccines are having death causing side effects. There are T.V.
interviews, tweets, articles published by the Plaintiffs showing the
complete safety of the Covishield vaccines and by which the people are
mislead and forced to enter into a danger zone. The law mandates
publishing all side effects of the vaccine to the beneficiaries prior to
vaccinating them. This is not followed with the ulterior purposes of
making profits. He has submitted that the vaccines have caused mass
murder which is borne out from the articles published.
Waghmare 29/48
IAL.33254.22 in SL.33253.22 wt..doc
47 Mr. Ojha has thereafter referred to the decision of the
Supreme Court in Jacob Pulivel vs. Union of India 19 which has upheld the
system of AEFI investigation. He has submitted that in context of the
death of Dr. Snehal Lunawat such Report of AEFI Committee is of
evidentiary value as per Section 35 of the Evidence Act and order of
compensation be granted to the victim on that basis.
48 Mr. Ojha has submitted that as per settled law when there is
delay in filing a Suit for defamation then injunction cannot be granted.
The limitation starts from the date of publication. The present Suit is
barred by limitation for not filing a case against the first publication of
charges of mass murderer against the Plaintiffs. He has submitted that
the first Publication of mass-murderer charges against the Plaintiffs was
on 17.10.2021 in a complaint on affidavit to the police. The second
Publication was on 25.10.2021 in pleadings in Criminal Writ Petition
No.6159 of 2021 in the case of Smt. Kiran Yadav. The third Publication
was news of the above said case in India, America and across the world.
These publications have been referred to. In view of no case being filed
against those Publications, the Plaintiffs cannot now file any Suit against
those publications because it is barred by limitation for one year.
19 (2022) SCC OnLine SC 533
Waghmare 30/48
IAL.33254.22 in SL.33253.22 wt..doc
49 Mr. Ojha has submitted that as per Section 342 of Cr.P.C. and
law laid down by the Supreme Court and this Court, the accused Adar
Poonawalla and Serum Institute are liable to be imposed with heavy costs
which are proportionate to the amount involved in the dispute. In that
context has relied upon the decision of this Court in Godrej & Boyce
Manufacturing Co. Pvt. Ltd. vs. Union of India 20 as well as in the decision
of the Supreme Court in Dr. Sarvepalli Radhakrishnan vs. Union of
India21 .
50 Mr. Ojha has thereafter make submissions on Section 340 of
the Cr.P.C. He has submitted that there is falsity of the version given by
the Plaintiffs in the Interim Application which is ex-facie proved to be
false from the records of the case itself and the sound proof given by the
Applicant/Defendant No.3 and also admissions made by the Plaintiffs. He
has submitted that though the Plaintiffs had filed the reply affidavit to the
application under Section 340 of the Cr.P.C., it is well settled, that the
Court conducting enquiry under Section 340 of Cr.P.C. cannot allow the
accused to take part in the proceedings contemplated. The accused can
participate in the proceeding only after this Court directs prosecution and
the Magistrate issues process against them. He has referred to various
20 (1991) SCC OnLine 496
21 (2019) 14 SCC 761
Waghmare 31/48
IAL.33254.22 in SL.33253.22 wt..doc
case laws in this context. He has submitted that in view of the
suppression and concealment and twisting of material facts, there are
serious offences against the administration of justice committed. In order
to save the purity and sanctity of Court proceedings it is mandatory to
initiate prosecution against the accused. He has relied upon the decision
of the Supreme Court in Afzal vs. State of Haryana 22 which has held that
a person neither making candid submission nor tendering apology and
then creating false evidence in subsequent affidavit should be prosecuted
and punished under perjury and contempt.
51 Mr. Ojha has submitted that in the present case the Plaintiffs
have failed to disclose that European Countries have stopped
administering covishield/Astra Zeneca to persons below the age of 40.
Further, WHO have related Covishield vaccines to GDS. False statements
have been made on oath that Dr. Snehal Lunawat's death was not due to
Covid vaccine and there was no death causing side effect. He has further
submitted that there is failure to disclose the Canada warning on
09.11.2021 regarding Thrumbocytopenia risk and WHO warning
regarding GBS risk. A false statement has been made with regard to
vaccines being safe and that Plaintiffs have worked to stop the pandemic.
22 (1996) 7 SCC 397
Waghmare 32/48
IAL.33254.22 in SL.33253.22 wt..doc
He has submitted that on account of the false statements made in the
affidavit, a case is made out for prosecution against the accused under
Section 340 of Cr.P.C.
52 Mr. Ojha has also submitted that due to the false statement of
facts the plaint suffers from fundamental defect and without any cause of
action being made out requires to be rejected under Order 7 Rule 11 of
the C.P.C.
53 Having considered the submissions, in my view the present
Suit being a defamatory Suit is required to be considered in that light.
The issue which falls for consideration is whether the statements which
have been published by the Defendants (annexed at Exhibits E to K of the
Plaint) are per se defamatory. A mere plea of justification taken by the
Defendants will not be sufficient for denial of interim relief. This Court
has laid down the principles of law in India with regard to grant of
interlocutory relief in a civil action of libel and has held that the principals
of law in England and in India are different. In this context it is
necessary to refer to the decision of this Court in Shree Maheshwar Hydel
Power Corporation Ltd. (supra) wherein in paragraph 49 of the said
decision, this Court held as under :
Waghmare 33/48
IAL.33254.22 in SL.33253.22 wt..doc
"49. After having heard the learned Counsel for both
the parties at length and after perusal of the impugned
judgment and order and also the various judgments cited
by both the parties, it is clear that in any event, the
principles of law in England and in India with regard to
grant of interlocutory reliefs in a "civil action for Libel
are different. In England, the principle of law is that in
case of an action for defamation, once the defendants
raise the plea of justification at the interim stage, the
plaintiff will not be entitled to an interlocutory
injunction. To put in other words, in England, a mere
plea of justification by the defendant would be sufficient
to deny the plaintiff any interim relief. As far as India is
concerned, as has been clearly held by this Court in the
judgments referred to hereinabove, specially the
judgment of this Court in the case of Dr. Yashwant
Trivedi v. Indian Express Newspapers (Bombay) Private
Ltd. dated 21st March, 1989 and the judgment of
appellate Bench dated 29th June, 1989 with regard to
the same matter in appeal, the judgment of this Court in
Waghmare 34/48
IAL.33254.22 in SL.33253.22 wt..doc
Purshottam Odhnvji Solanki v. Sheela Bhatta dated 3rd
December, 1990, judgment of this Court in the case of
Mrs. Betty Kapadia v. Magna Publishing Co. Ltd. dated
22nd July, 1991, and the judgment in the case of Indian
Express Newspapers (Bombay) Ltd. v. M/s. Magna
Publishing Co. Ltd., dated 21st July, 1995, it is clear that
in India, a mere plea of justification would not be
sufficient for denial of interim relief. The defendants,
apart from taking a plea of justification will have to
show that the statements were made bona fide and were
in public interest, and that the defendants had taken
reasonable precaution to ascertain the truth, and that
the statements were based on sufficient material which
could be tested for its veracity. Therefore, in India, the
Court is very much entitled to scrutinise the material
tendered by the defendants so as to test its veracity and
to find out whether the said statements were made bona
fide and that whether they were in public interest.
Therefore, in India, even at the interlocutory stage, the
Court is very much entitled to look into the material
Waghmare 35/48
IAL.33254.22 in SL.33253.22 wt..doc
produced by the defendants for the plea of justification,
so as to test its veracity with regard to the allegations,
alleged to be defamatory."
54 Thus, it is clear from the law laid down that the Defendants,
apart from taking a plea of justification will have to show that the
statements are made bonafide and in public interest, and that the
Defendants had taken reasonable precaution to ascertain the truth, and
the statements were based on sufficient material which could be tested for
its veracity. This Court has held that even at the interlocutory stage, the
Court is very much entitled to look into the material produced by the
Defendants for the plea of justification, so as to test the veracity with
regard to the allegations alleged to be defamatory.
55 In the present case, a perusal of statements/contents
contended by the Plaintiffs to be defamatory content Nos.1 to 6 reveals
that there are the words used against the Plaintiffs such as their having
"murdered millions" by their vaccines; that the Plaintiffs are consequently
"murderers" and "criminals"; that Plaintiff No.1 should be shut down and
Plaintiff No.2 arrested and put in jail. Thus, it was necessary for these
Defendants to produce material to justify these allegations against the
Waghmare 36/48
IAL.33254.22 in SL.33253.22 wt..doc
Plaintiffs.
56 Having perused the material on record, far from the Plaintiffs
being "murderers" and "Criminals", the Plaintiffs have been considered to
have saved four millions lives in India as mentioned by Dr. Veena Dhawan,
Additional Commissioner (Immunization) Ministry of Health and Family
Welfare in her Affidavit dated 23.11.2022 filed in the Supreme Court in
Rachana Gangu (supra). It is observed from the said Affidavit which has
also been relied upon by Defendant No.3 in his affidavit in reply to the
Interim Application that far from the Plaintiffs having murdered millions
as per the impugned statement of the Defendants, there have been
negligible adverse events from the vaccines administered. Dr. Veena
Dhawan's in her Affidavit has stated that against 2190 million doses
administered till November, 2022 there had been a total of 26 Adverse
Events Following Immunization (AEFI) cases of TTS reported in India, out
of which in 14 cases the individual recovered after hospitalization and in
12 cases the individual passed away. The reporting rate of
Thrombocytopenia Syndrome (TTS) in India is .001 per one lakh doses
administered making it an extremely rare event. Further, she has
mentioned that till November, 2022, a total of 219.86 crore (2198.60
million) doses of Covid vaccines have been administered in the Country.
Waghmare 37/48
IAL.33254.22 in SL.33253.22 wt..doc
A total of 92,114 AEFI cases (0.0042%) have been reported, of which
89,332 (0.041%) were minor AEFI cases and a total of 2782 cases were
serious and severe AEFI's (0.00013%). The figures were stated to be prior
to causation analysis and any such severe AEFI's including death cannot
be attributed to vaccination till the same is casually assessed by the
National AEFI Committee.
57 In the case of case of Jacob Puliyel (supra) the Supreme
Court had referred to the "National AEFI Surveillance Secretariat" and
had considered it to be a 'well defined mechanism for collection of data
relating to adverse events that occur due to Covid vaccines'. The Supreme
court rejected the submission 'that the surveillance system of AEFI's in this
Country is faulty and the correct figures of those who have suffered any
side effects, severe reactions or deaths post inoculation have not been
disclosed'. Thus, one can rely upon the figures given by the national
AEFI surveillance system and which has been relied upon by Dr. Veena
Dhawan in her Affidavit.
58 This material is to be tested against the material produced by
the Defendants. The Defendants have relied upon the warning issued by
the World Health Organization (WHO) in July, 2021 about Guillain Barre
Waghmare 38/48
IAL.33254.22 in SL.33253.22 wt..doc
Syndrome (GBS) being caused due to Covishield and Canada's Health
Department having in November, 2021 issued a warning about
'Thrombocytopenia' Syndrome (TTS) being a potential side effect of Astra
Zenica Covid-19 vaccine. However, upon perusal of the statement of
WHO dated 26.07.2021, WHO has stated that it could not confirm or rule
out association with the vaccine. The cases may occur co-incidentally
following vaccination. For example rare cases of GBS have been observed
following seasonal influenza vaccines and vaccines to protect against
shingles, but it is not known if the vaccines cause GBS. These warnings of
WHO do not amount to a finding that the said Covishield vaccines of
Plaintiff No.1 have murdered millions. In fact the WHO statement itself
concludes that the potential benefits of inter alia Astra Zenica Covid-19
vaccines continue to outweigh any potential risk of GBS, particularly
given the increase in the more transmissible Delta Variant. Further, the
warning about TTS by the Canada's Health Department has to be read in
the light of the findings of the National AEFI Surveillance Secretariat that
the reporting rate of TTS in India is .001 per one lakh doses administered
making it an extremely rare event.
59 The reliance placed by Mr. Ojha for the Defendants on the
fact that since March, 2021 around 21 European countries have banned
Waghmare 39/48
IAL.33254.22 in SL.33253.22 wt..doc
the Covishield/Astra Zenica vaccine is in fact a misconceived reliance.
The correct facts are that the said vaccine was only suspended as a
temporary measure till review and was never banned in any European
Country.
60 In my considered view, Defendant No.3 in the said affidavit
by placing reliance upon the Dilip Lunawat Writ Petition as well as Smt.
Kiran Yadav Criminal Writ Petition and the articles published around the
world have sought to divert this Court's attention from the
aforementioned issue in the present Suit and Interim Application. The
issue arising in the present Suit is not whether the vaccines are good or
bad and/or have adverse effects. Further, there is a misplaced reliance
upon the order in the Dilip Lunawat Writ Petition as well as the order of
the Supreme Court orders in Rachana Gangu (supra) as these orders
other than issuing notice have not considered the issue of whether the
Plaintiffs are mass murderers and/or criminals and/or their having
murdered millions through their Covishield vaccine. In fact, though there
may have been articles/publications where the vaccines such as those
manufactured by the Plaintiff No.1 have been considered to cause deaths,
this does not in any manner prevent the Plaintiffs from filing the present
Suit for defamation in respect of the said contents which have been
Waghmare 40/48
IAL.33254.22 in SL.33253.22 wt..doc
posted/uploaded by the Defendants and which are exhibited in the Plaint.
It has been held by the Division Bench of this Court in Umar Abid Khan
and Others vs. Vincy Gonsalves23 that every repetition of defamatory
words "is a new publication and distinct cause of action". Thus, this
decision has taken a view contrary to the view taken by the Delhi High
Court in the case of "Khawar vs. Asif Nazir, as upholding the single
publication rule. Being a decision of this Court, it is required to be
followed.
61 Further I find no merit in the submission of Mr. Ojha that the
present Suit is barred by limitation in view of there being similar articles
published prior to the one year period for filing the claim for defamation.
The present claim is on the basis of the publication of the Defendants
which are exhibited and form the subject matter of the present Suit and
though there may be a repetition of defamatory words, the present
publication is a new and distinct cause of action.
62 I further do not find any merit in the submission of Mr. Ojha
that the Plaintiffs have not specified the statements which are defamatory
and have merely annexed the transcripts of the contents claimed to be
defamatory. Having perused the Plaint, I am of the prima facie view that
23 (2009) SCC OnLine Bom 1676
Waghmare 41/48
IAL.33254.22 in SL.33253.22 wt..doc
the Applicants/Plaintiffs have made it amply clear as to which statements
are defamatory and in fact have underlined the defamatory words used in
those transcripts. Thus, in the present case the principles laid down by
this Court in SL Infra Project (supra), that defamatory words must be set
out in the Plaint have in fact been met.
63 The submission on behalf of the Defendants that the Plaintiffs
proper remedy was not to ask for a restraining order on the ground of
defamation but to file a Petition under Article 215 of the Constitution in
view of there main grievance being misreporting of proceedings before
the Division Bench in the Lunawat Petition, does not deserve acceptance.
The Plaintiffs have not sought restraint orders on the ground of prejudice
to any legal proceeding and/or administration of justice. Thus, the
decision relied upon on behalf of the Defendants viz. Sahara India Real
Estate Corporation Limited (supra) is inapplicable in the present case.
64 Further, I do not find any merit in the submission on behalf of
the Defendants that though in the Lunawat Writ Petition, similar words
have been used viz. "mass murderers" with reference to the Plaintiffs
which amounts to publication and which the Plaintiffs allege herein as
being per se defamatory, the Plaintiffs having not taken any action against
Waghmare 42/48
IAL.33254.22 in SL.33253.22 wt..doc
that publication and hence would be barred from taking action herein.
The decisions relied upon by the Defendants in support of their
contention that statements in pleadings in Court amount to publication
and can be proceeded against, merely hold that the statements made in
the pleadings before the Court can be the subject of a criminal
prosecution under Section 499 and 500 of the C.P.C. However, these
statements made in pleadings are protected by absolute privilege and
cannot be made the subject matter of a Civil Suit of defamation claiming
damages as has been held in the decision of this Court in Miss Kamalini
Manmade vs. Union of India24,. Accordingly, the submission that a
restraint order sought in the Interim Application operates to restrain any
statement made by the Defendants in pleadings filed in the course any
judicial proceedings is misconceived. It is well settled that absolute
privilege only applies to fair reporting of proceedings "by news papers".
Only documents read/recorded in course of actual open judicial
proceedings can be repeated. The mere fact that the defamatory
statement might have been made in a pleading/affidavit filed in the
course of judicial proceedings does not give any entitlement to the
Defendant to repeat the same. The Defendants have no immunity in an
24 (1965) SCC OnLine Bom 149
Waghmare 43/48
IAL.33254.22 in SL.33253.22 wt..doc
action for defamation. It has been held in Stern vs. Piper & Ors.25 that
every republication of a libel is a new libel and each publisher is
answerable for his act to the same extent as if the defamatory statement
originated with him.
65 The decisions cited on behalf of Defendants in support of
their plea of justification viz. Tata Sons Ltd. (supra); Mahesh Murthy
(supra) and Kailash Gelot (supra) have in fact held that an injunction
would not be granted in cases where the defamatory statements are such
that they could not be proved true/correct at trial. Further, in Mahesh
Murthy (supra) it has been held that the Court would grant an interim
injunction where the statement is unarguably defamatory. That there are
no grounds for concluding the statement may be true and there was
evidence of an intention to repeat a published defamatory statement. The
Court therein had applied the test in Bonnard vs. Perryman. Further, the
Delhi High Court in Swami Ramdev vs. Juggernaut Books Pvt. Ltd.26 has
held that an interlocutory injunction ought to be granted when the
Defendant contends that he will be able to justify the libel and the Court
is, prima facie, not satisfied that he will be able to do so. No amount of
25 (1996)
26 2018 SCC OnLine Del 11549
Waghmare 44/48
IAL.33254.22 in SL.33253.22 wt..doc
damages can redeem the damage to the reputation of any person and
merely because there has been previous publications on the same issue,
the same does not permit any repetition of prima facie defamatory
allegations.
66 Having considered the contents claimed to be defamatory in
the present Suit, I am of the prima facie view that the contents are in fact
per se defamatory in that there is no justification made out by the
Defendants in support of the statements made which have been referred
to above. I further do not find any case made out by the Defendants in
support of the Interim Application filed by Defendant No.3 for recording a
finding that a false affidavit have been filed in the Court. The case of
suppression of facts, in my view does not arise considering that the
present Suit which this Court is concerned, is a defamatory Suit and not
whether the vaccine is bad. I am prima facie satisfied that the Plaintiffs
have made out a case that the videos and contents at Exhibits E to K of
the Plaint are per se defamatory.
67 Further, the material relied upon by the Defendants in
support of their contention that prosecution be initiated under Section
340 Cr.P.C. against the Plaintiffs for suppression of documents/ articles are
Waghmare 45/48
IAL.33254.22 in SL.33253.22 wt..doc
of no merit considering that the material in respect of which suppression
is alleged is in no way germane to the cause of action in the present Suit.
In view of the present Suit being a defamatory Suit, this Court is not
called upon consider the issue as to whether the vaccines are bad and/or
having harmful side effects. This issue arises in an independent Writ
Petition/Public Interest Litigation separately filed before this Court.
68 In view thereof there is no merit in the Interim Application
(L) No.39735 of 2022 and Interim Application (L) No.3344 of 2023 as
both proceed on the same footing i.e. for initiation of prosecution under
Section 340 (I) of Cr.P.C.
69 Further, in view of the above findings, I do not find any merit
in the Interim Application (L) No.1146 of 2023 which is filed under Order
VII Rule 11 of the C.P.C. for rejection of the Plaint on the ground of
suppression of material facts.
70 Accordingly, Interim Application (L) No.33254 of 2023 is
partly made absolute in terms of paragraph 32 (i) and (ii) as under :
i) Pending hearing and final disposal of the suit,
Defendant Nos.1 to 5 (themselves and through their servants,
agents, assigns and/or any person claiming by or through
Waghmare 46/48
IAL.33254.22 in SL.33253.22 wt..doc
them) are restrained from making and/or publishing and/or
reproducing and/or circulating and/or speaking and/or
communicating, any derogatory and defamatory statements
i.e., the Defamatory Videos and the defamatory contents as
mentioned in Exhibit E to K and/or of any like nature in any
medium including television, print media and/or the internet
and/or whatsapp in any manner whatsoever;
ii) Pending hearing and final disposal of the suit, the
Defendant Nos.1 to 5 (themselves and through their servants,
agents, assigns and/or any person claiming by or through
them) are directed to forthwith delete and/or remove the
Defamatory Videos and defamatory contents at Exhibits E to
K from their respective websites and social media platforms
and shall issue an unconditional apology stating that the
defamatory contents were baseless, unsubstantiated and
unwarranted.
71 Interim Application (L) No.33254 of 2023 is accordingly
disposed of.
Waghmare 47/48
IAL.33254.22 in SL.33253.22 wt..doc
72 In view of the above findings, Interim Application (L)
No.39735 of 2022, Interim Application No.3344 of 2023 and Interim
Application No.1146 of 2023 are disposed of.
73 There shall be no order as to costs.
(R.I. CHAGLA, J.)
Waghmare 48/48
