Whether defamatory allegations made in arguments before a Court, can form a basis for prosecution for defamation? J&K and Ladakh HC answers

Jammu & Kashmir and Ladakh High Court: While deliberating over the instant petition the Court had to consider whether any defamatory allegations made, either in the pleadings or during the course of arguments, before a Court of law can form a basis for prosecution for offence of defamation; the Bench of Sanjay Dhar, J.*, opined that the arguments made by a counsel upon instructions from his client, which are per se defamatory in nature, can form basis for prosecution of such client for offence of defamation.

Background: As per the impugned complaint, the respondent alleged that during the course of arguments of bail application of the respondent before the Courts in Rajasthan, the counsel for the petitioner argued that the respondent was associated with banned terrorist organization “Hizbul Mujahideen”. The impugned complaint alleged that the allegation resulted in dismissal of his bail application by the Sessions Court, Jaipur, and injury to his reputation and business. Furthermore, the respondent alleged that several national newspapers also published articles regarding the respondent’s alleged association with Hizbul, thereby bringing him under investigation by the NIA and further damaging his reputation.

Based on the aforesaid allegations, the respondent sought prosecution of the petitioner for offences under Section 499¹ of RPC read with Section 500² and 501³ of Ranbir Penal Code (RPC) before the Court of Chief Judicial Magistrate, Srinagar (Trial Magistrate). The Trial Magistrate, after recording preliminary statements of the respondent and his witness, passed the impugned order dated 23-06-2016, whereby satisfaction was recorded that, prima facie, the petitioner had committed offences under Section 499 RPC read with Section 500 and 501 of RPC. Consequently, process was issued against the petitioner.

The instant petition challenged the complaint filed by the respondent before the Trial Magistrate and the impugned order dated 23-06-2016.

The petitioner contended that the allegation regarding respondent’s association with Hizbul Mujahideen, was made by his counsel without his advice and consent. It was further contended that the alleged act has been committed at Jaipur, as such, the Trial Magistrate at Srinagar did not have jurisdiction to entertain the impugned complaint.

Court’s Assessment: Perusing the issue, the Court stated that the law is well settled that when pleadings containing defamatory material are relied before a Court of law, the same amounts to publication within the meaning of Section 499 of RPC.

The Court further referred to case laws decided by Madras and Madhya Pradesh High Courts, wherein they dealt with similar question. Therefore, the Court was of the view that arguments made by a counsel upon instructions from his client, which are per se defamatory in nature, can form a basis for prosecution of such client for offence under Section 499 of RPC.

Vis-a-vis the territorial jurisdiction of the Trial Magistrate, the Court said that alleged defamatory submissions were made by counsel for the petitioner before the Sessions Court and the High Court at Jaipur, Rajasthan. So, the publication of alleged defamatory statements has taken place within the territorial jurisdiction of the Courts at Jaipur.

The Court took note of the news reports which reported the defamatory allegations levied on the respondent and pointed out that that none of them were defamatory in nature. It was pointed out that the news reports publicized that the respondent was given a clean chit by NIA and that he has no terror links and because of this reason he was granted bail by the Rajasthan High Court. Furthermore, none of these news reports seemed to have been published at the instance of the petitioner.

The Court pointed out that the only act which has resulted in defamation of the respondent has taken place within the local limits of the Courts at Jaipur. None of these acts took place within the local limits of the Courts at Srinagar. The Court stated that the instant matter is a case where the alleged act of defamation took place only in Jaipur where during arguments certain allegations were levelled against the respondent by the counsel for the petitioner. The alleged defamatory arguments were not publicized at any place in Srinagar. Therefore, the observation of the Trial Magistrate that it has jurisdiction to try the case is not sustainable in law.

The Court concluded that the petitioner is a resident of Rajasthan, and he is alleged to have committed the offence of criminal defamation beyond the limits of erstwhile State of Jammu and Kashmir. Therefore, the petitioner cannot be prosecuted at Srinagar in the instant case. The trial Magistrate has, therefore, erred in entertaining the impugned complaint.

The Court thus quashed the impugned order dated 23-06-2016 and directed the Trial Magistrate to return the complaint to the respondent for its presentation before the Court having jurisdiction.

[Satya Prakash Arya v. Syed Abid Jalali, 2024 SCC OnLine J&K 556, decided on 20-07-2024]

*Judgment by Justice Sanjay Dhar

Advocates who appeared in this case:

For petitioner- Z. A. Qureshi, Sr. Advocate, with Agha Faisal Ali, Advocate