Case BriefsHigh Courts

Jammu Kashmir and Ladakh High Court: Rajnesh Oswal, J., quashed the FIR registered against a journalist for publishing the news report disclosing an incident Police brutality. The Bench expressed,

“The mode and manner in which the impugned FIR has been lodged clearly reflects the mala fide on the part of respondents as the respondents could have given their version by similar mode but they chose unique method of silencing the petitioner and it is undoubtedly an attack on the freedom of press.”


The petitioner was a reputed journalist who published a story in the Newspaper “Early Times” in its edition of 19-04-2018 under the heading, “Father of 5 brutally tortured by Kishtwar Police”. The said news related to one Akhter Hussain, 26 year-old Kishtwar man, the father of five children, who was shifted in a critical condition to Government Medical College Jammu after being allegedly subjected to third degree torture by Kishtwar police. The victim was stated to be kept in illegal detention by the police where he was subjected to brutal torture as a result of which he was in critical condition.

It was further submitted that brother of said Akhter Hussain, Abdul Ganie had filed a criminal complaint against respondents under sections 330, 331, 342, 348 RPC in which the similar contents were mentioned, those were got published in the newspaper mentioned above. The grievance of the petitioner was that the respondents got furious due to the reporting by the petitioner, and an FIR had been registered against him under Ss. 499, 500, 504 and 505 of RPC. The petitioner had impugned the FIR on the ground that it FIR had been lodged to harass the petitioner so as to stop him from publishing any news item against the Police establishment and to gag the press and electronic media, which amounts to infringement of right of free speech and expression as guaranteed under the Article 19 of the Constitution of India.

Stand taken by the Police

The stand of the Police was the petitioner had tried to instigate the people of Kishtwar against the Police and thus created rage/confusion among the public through the publication of that news report to the extent to commit offence of any type including road blockade, vandalism, breakage of public property etc.

Can Publication of News amount to Defamation?

Opining that the petitioner being a journalist his job was to gather information and publish the same in the newspaper or in any other media, the Bench stated that mere perusal of the news item reflected that it had been published pursuant to the information disclosed by the kin of the victim which was further corroborated by the criminal complaint lodged by the real brother of victim.

Hence, the Bench opined that the publication of the news item on the basis of statement made by the cousin and brother of the victim did not amount to offence under section 499 RPC as the petitioner had been performing his professional duty of reporting the matter specially when a complaint pertaining to the similar facts had been lodged by the relatives of the victim.

Freedom of Press v. Breach of Peace

 Rejecting the allegation that the petitioner by publishing the controversial news item tried to instigate the peaceful public to commit acts of vandalism, road blockages and acts of destruction of public property, the Bench stated that the petitioner had simply published what was told to him by the kin of the victim and as per Section 505 RPC, the making, publication or circulating of any statement, report or rumour must be with intention to create alarm in the public or any section of public so as to induce them to commit offence against state or public tranquillity.

Relying on the decision of Supreme Court in Bilal Ahmad Kaloo v. State of A.P., 1997 (3) Crimes 130 (SC), wherein it was held that, “ingredient of offence mens rea is a necessary postulate for the offence under Section 505 IPC”; the Bench stated that mens rea is an essential under Section 505 RPC and as Section 505 RPC provides a reasonable restriction on the fundamental right to freedom of speech and expression, therefore, the same is required to be strictly construed. The Bench stated,

“The intention to generate the consequences as contained in Section 505 RPC must be forthcoming from the plain reading of the statement/report or rumour and should not left at the discretion of a particular person.”

Accordingly, it was held that prima facie there was nothing in the FIR that the petitioner desired to generate the consequences as claimed by the respondents and rather he had performed his professional duty. Further, the said news was published on 19-04-2018 where as FIR was registered on 12-05-2018 and till then no such offences as anticipated by the respondents were committed by the public.

The Bench added, even if the sais offence was committed the case of the petitioner would fall under exception to Section 505 RPC which clearly provides that when a person making, publishing or circulating such report, rumour or report has reasonable grounds for believing that such statement, rumour or report is true and make publishes or circulates in good faith and without any such intent, such publication would not amount to offence.


“No fetters can be placed on the freedom of press by registering the FIR against a reporter, who was performing his professional duty by publishing a news item on the basis of information obtained by him from an identifiable source.”

Hence, the Bench held that the FIR impugned was nothing but an abuse of process of law as mere fact that FIR was lodged only against the journalist and not against the person, who had disclosed the said incident to the journalist prima facie, established malice on the part of the respondents. In view of the above, the impugned FIR was quashed. [Asif Iqbal Naik v. UT of J&K, CRMC No. 289 of 2018, decided on 23-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: F. S. Butt, Advocate

For the UT of J&K: Suneel Malhotra, GA

Case BriefsHigh Courts

Bombay High Court: Nitin W. Sambre, J., expressed that,

“The law on the principle of Torts that an action dies with the person, in a defamation proceedings is required to be appreciated.”

Restraining the movie Gangubai Kathiawadi

Instant suit was initiated against the respondent/defendant seeking decree of permanent injunction restraining them from publishing, printing, advertising, selling, alienating, assigning and/or creating any third-party rights and/or holding any press meets, promoting the Novel namely “The Mafia Queens of Mumbai” and/or writing any other story of the life of mother of the plaintiff.

Defendants 5, 3 and 4 took out Notice of Motion under Order VII, Rule 11 Code of Civil Procedure after the respondents were served with suit summons. The said notice of motions were allowed. As a consequence, plaint came to be rejected. Hence the first appeal was filed.

Analysis, Law and Decision

High Court while expressing that the law on the principle of Torts that an action dies with the person, in a defamation proceeding is required to be appreciated, held that the contents of defamatory nature against so-called adoptive mother of appellant dies with her death.

Further, the Bench stated that appellant had to demonstrate that he was the adoptive son of deceased Gangubai Kathiawadi, which he prima facie failed to as he suffered a legal injury.

The said principle is based on the Supreme Court decision in Melapurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair,  (1986) 1 SCC 118, and Bombay High Court decision in Luckumsey Rowji v. Hurbun Nursey, 1881 SCC Online Bom 39 was rightly considered by the City Civil Court while passing the order of rejection of plaint.

Merely because the appellant is claiming to be son of such person cannot be prima facie inferred to have the legal right to show indulgence.

In view of the above, temporary injunction was not granted.[Babuji Rawji Shah v. S. Hussain Zaidi, First Appeal (ST) No. 9761 of 2021, decided on 30-07-2021]

Advocates before the Court:

Mr Narendra Dubey for Applicant in both IA.

Mr Madhu Gadodia and Sujoy Mukherji i/by Naik Naik & Co. for Respondent Nos. 1 and 2.

Mr Mayur Khandeparkar a/w Mr Parag Khandhar & Ms Prachi Garg, i/by DSK Legal for Respondent Nos. 3 to 5.

Case BriefsHigh Courts

Madras High Court: V. Bhavani Subbaroyan, J., while addressing the allegations of defamation, held that,

While printing and publishing matters with regard to the leaders of the Country or State, the petitioners (Newspaper) are supposed to give respect and address them accordingly.

Instant petition was filed to quash the proceedings initiated against the petitioners for an offence punishable under Sections 500, 501 of Penal Code, 1860.

Petitioner’s counsel submitted that even if the allegations made in the complaint were taken as it is, the same does not constitute defamatory allegations with respect to the act or conduct of the then Chief Minister in the discharge of her public functions and at the best, it can only be treated as personal defamation.

Hence the counsel submitted that such a complaint cannot be maintained through the City Public Prosecutor, and it does not satisfy the requirements under Section 199 (2) CrPC.

Further, the Counsel for the Government submitted that the petitioner indulged in making wild allegations against the then Chief Minister and thereby defamed her name in the eyes of the general public.

Adding to the above submission, it was stated that in the name of freedom of press, petitioners cannot make defamatory and derogatory allegations against the former Chief Minister.

Analysis, Law and Decision

Bench stated Section 199(2) of CrPC provides a special procedure with regard to the initiation of proceedings for prosecution for defamation of a public servant.

 If the defamatory statement is personal in nature, this special procedure will not apply, and it is only the concerned person who has to file the complaint in his or her individual capacity.

In Court’s opinion, the allegations based on which the criminal complaint was filed did not in any way touch upon the conduct of the aggrieved person in discharge of her public function. The said allegation can only be construed as personal defamation.

Hence the said complaint cannot be maintained since it did not satisfy the requirements of Section 199(2) of CrPC.

High Court quashed the proceedings in view of the above discussion.

While concluding the matter, the petitioner’s newspaper was directed to refrain from printing matters in a disrespectful manner.[Dr R. Krishnamurthy v. City Public Prosecutor,  2021 SCC OnLine Mad 2676, decided on 12-07-2021]

Advocates before the Court:

For Petitioners: Mr S.Elambharathi

For Respondent: Mr E.Raj Thilak, Counsel for Government (Crl Side)

Case BriefsHigh Courts

Madras High Court: G. Ilangovan, J., expressed that a cartoonist is also bound by the law and he cannot defame anyone.

Accused, who is the petitioner in the present matter had published a cartoon on his Facebook page regarding the self-immolation incident.

In the said cartoon burning body of a baby, being watched by three people, without clothes and carrying currency notes to cover their private parts was portrayed.

Three people in the cartoon were named as District Collector, the Superintendent of Police and Chief Minister of Tamil Nadu, it was said that the cartoon was highly humiliating and defamatory.

Due to the said cartoon, Government Officers were prevented from discharging their duties, because of the false accusation.

Based on complaint, a case was registered for the offences punishable under Section 501 of Penal Code, 1860 and Section 67 of the Information and Technology Act, 2000. When the investigation was undertaken, the accused preferred this petition.

Petitioner was arrested in 2017 and was later enlarged on bail.

Question for consideration:

Where from the fundamental rights of freedom of thought and expression must begin and where must it end?

Freedom of thought and expression is subject to the limitations that have been set out in the Article 19(2) of the Constitution of India.

Just like, any other citizen, a cartoonist is also bound by the law and in the form of a cartoon, he cannot defame anyone, this is the settled position of law.

 Toon Controversy

In the ‘Toon Controversy’ a cartoon about the Prophet Mohammed was created resulting to a controversy in the World. A discussion emanated from the said episode wherein the limitation of freedom of speech and expression along with the principles of hate speech and expression came in.

Nature of thought and expression are not boundless. Whether a particular criticism by the cartoonists was within his bounds and must be decided only in the context of the particular issue.

Words spoken, cartoon drawn if taken away from the context, it will loss its soul and life.

In the present matter, the cartoonist was trying to portray his anger, grief and criticism regarding the inability of the administration, both Executive and Police, in containing the collection of exorbitant interest by money lenders.

Collector of Thirunelveli got humiliated by the said depiction. On the face of it, if any ordinary person looks at the cartoon may encounter so many thoughts. Some may feel that it is an over exaggeration of the event. Some may feel that the Authorities are not taking proper steps and they are not interested in protecting the life of the citizens and others may thought it is highly obscene.

 In view of the above-said, question for consideration was as follows:

Whether the cartoon was obscene and highly defamatory?

What the cartoonist wanted to express was his anger and the said cannot be construed as an intention to indulge on abscenity or defamation.

Court cannot teach ethicality to the people and it is for the Society to evolve and follow the ethical standards.

High Court concluded the matter while putting down the words of Benjamin Franklin:

” Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as public Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or control the Right of another; And this is the only Check it ought to suffer, and the only Bounds it ought to know, Two centuries later it remains difficult in law to draw the outmost bounds of freedom of speech and expression, the limit beyond which the right would fall foul and can be subordinated to other democratic values and public law considerations, so as to constitute a criminal offence. The difficulty arises in ascertaining the legitimate countervailing public duty, and in proportionality and reasonableness of the restriction which criminalises written or spoken words. Further, criminalisation of speech is often demarcated and delineated by the past and recent significant events affecting the nation including explanation of their causes. “

 Therefore, in Court’s opinion, continuing the investigation against the petitioner would make no purpose and no criminality was involved in the cartoon as the petitioner’s intention was not to defame the authorities but to expose the gravity of the issue involved. [Balamurugan v. State, 2021 SCC OnLine Mad 2086, decided on 19-04-2021]

Advocates before the Court:

For Petitioner: S. Vanchinathan

For Respondents:M. Ganesan Government Advocate (Crl. Side) for R1.

R2 – No appearance

Case BriefsHigh Courts

Delhi High Court: Yogesh Khanna, J., reiterated that there is no provision in the Criminal Procedure Code to amend a criminal complaint, but amendment can be allowed if the amendment is sought before taking of cognizance.

Petitioner (Aroon Purie, Editor-in-Chief, India Today) filed an application for amendment challenging the order dated 26-02-2020 whereby the trial court directed to issue notice against the petitioner for offences under Sections 500/501/502 read with Section 120-B IPC.

Factual matrix

India Today Magazine in its edition dated 30-04-2007 had published a news item under the title “Mission Misconduct”. The said item asserted allegations, against the complainant, of soliciting sexual favour leading to a probe that revealed financial irregularities and fudging of bills. It was also reported that consequently, the official (complainant) is back in India is facing disciplinary action.

Petitioner’s arguments

(a)       As per Section 7 of the Press and Registration of Books Act, 1867, normally an editor, printer can only be prosecuted. The petitioner is the editor-in-chief and therefore could never be prosecuted. The news item itself shows the petitioner is editor-in-chief and not an editor.

(b)       The news item merely reported the facts and hence it cannot be said to be defamatory. Facts were accurate and reflected the public record and hence no defamation case could be made out.

(c)        Violation of Section 196(2) CrPC: It was argued that it prohibited any Court from taking cognizance of an offence of conspiracy, other than criminal conspiracy to commit an offence punishable with death or imprisonment for life or rigorous imprisonment for two years or above. Such cognizance can be taken only in a case where the State Government or the District Magistrate has consented in writing and since there is no consent of the State Government or by the District Magistrate, the cognizance in the present case is barred under Section 196(2) CrPC.

(d) Challanege was also based on the grounds of violation of Section 197 CrPC. It was contended that necessary sanction for prosecution was not obtained.

(e) Lastly, it was asserted that the instant petition under Section 482 CrPC was maintainable despite availability of the remedy under Section 397 CrPC.

Complainant’s story

As per the complainant, information about allegation of “sexual harassment at work place” was conveyed to him only in the form of a show cause notice. On the basis of his reply, the Ministry of External Affairs conveyed to the complainant that they would not pursue the matter further at that stage. Thus, without any basis, India Today went ahead with the publication of an unsubstantiated and unverified defamatory story and splashed it all over the world through the medium of the internet.

Act of Defamation was done on 30-04-2007 on which date there were no charges of any financial irregularities or of fudging of bills, etc, against the complainant. Such charges were created and disciplinary action initiated and pursued by the Department under the shadow of a democles sword in the form of the publication of the defamatory news story which ignited the flame and the resultant fire engulfed the whole unblemished service career, jeopardized his chances of promotion and, above all, assassinated his precious reputation.

As per the complainant, the so-called complaint dated 10.07.2005 (2006) never existed and was subsequently planted. Further, it was alleged that on the date of publication of story in India Today dated 30-04-2007, no show cause notice much less the memorandum of charges were issued to him.

Whatever information with regard to any allegations was available to the accused/officers of the MEA, who were privy to such classified/confidential information; they rather provided such classified information to India Today in an unauthorized manner and in violation of the GOI Conduct Rules applicable to them, which specifically prohibits sharing any information about service matters of its officer with the media. Thus the assertion the news story on 30-04-2007 was only reporting of a fact which was in public record, was completely misleading.

Analysis, Law and Decision

(a) The High Court was of the opinion that the argument that as per Section 7 of the Press and Registration of Books Act, 1867, normally an editor can only be prosecuted cannot be adhered to. It was reiterated that it is matter of evidence in each case and if the complaint is allowed to proceed only against the editor whose name is printed in the newspaper against whom there is a statutory presumption under Section 7 and in case such editor succeeds in proving that he was not the editor having control over the selection of alleged libelous matter published in the newspaper, the complainant would be left without any remedy left to redress the arguments against the real culprits.

(b) On the second issue, the Court said that the assertions that the news item merely reported facts which were accurate and reflected public records and cannot be held to be defamatory, cannot be accepted. Rather such assertion and who was responsible for its publication and has it came to the fore of editors require critical examination and hence evidence of these issues is required.

The ingredients of Section 499 IPC clearly point out towards the imputation published in any form which also include newspaper. In case the petitioner seeks the protection of an exception under Section 499, that stage is yet to come, meaning thereby the submissions made by the petitioners are not applicable at this stage.

It was noted that as per record available before the Court, the story by the petitioner against the complainant, was allegedly published much prior to the issue of show cause notice. Subsequent to this, the complainant was exonerated from all the allegations vide an order dated 04-04-2008, but as per the complainant, with the publication of the article in question, the complainant was allegedly defamed in the eyes of his wife, his family, his friends and colleagues and society, in India and all over the world. Till date the defamatory article allegedly haunts him and that is the reason the complainant has been vigorously pursuing litigation.

(c) Further, the Court doubted whether Section 196(2) CrPC will be applicable in the present case. Anyhow, in this case, the Magistrate after due process of law and after applying her mind to the facts and circumstances of the complaint, has taken cognizance and thus has consented in writing to the initiation of the proceedings against the petitioner vide a summoning order dated 20.04.2013, hence this objection was not relevant at this stage.

(d) With respect to the objection qua violation of Section 197 CrPC, the High Court expressed that in the present matter, petitioner was neither a judge nor a public servant, therefore no sanction was required to initiate criminal action by the Magistrate against the petitioner.

Relying on the Supreme Court decision in State v. Battenapatla Venata Ratnam, (2015) 13 SCC 87, the Court opined that as the allegations against the government official are of leaking of the confidential information of complainant to block his career, and allegedly for their own pleasure, hence, prima facie, at this stage, per allegations, sanction was not required.

(e) On the question of maintainability of the instant petition, the Court was of the view that allegations and counter allegations in the present matter raised disputed questions of facts and cannot be dwelled into by the High Court under Section 482 CrPC.

All the defenses raised in the instant petition, can very well be taken up by the petitioner during the course of trial, said the High Court.

Whether amendment can be allowed at the instant stage

In the present case, the trial court had already taken cognizance of the complaint and proceeded with the trial. As per the High Court, the amendment which was now sought is illegal and against the provisions of law.

In the present matter, the amendment were sought when the Magistrate had already taken cognizance of the complaint and had proceeded with trial. The High Court relied on the Supreme Court decision in S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609, wherein it was held that, there is no provision in CrPC to amend criminal complaint, but amendment can be allowed if the amendment is sought before taking cognizance.

Therefore, the present petition was dismissed as no ground to interfere under Section 482 CrPC was found. [Aroon Purie v. State, Crl. MC No. 3492 of 2013, decided on 07-04-2021]

Advocates before the Court:

[CRL.M.C. 3492/2013 CRL.M.As. 12820/2013 & 18912/2014]

For the Petitioner: Mr. Siddharth Luthra, Senior Advocate with Mr.Hrishikesh Baruah, Mr. Pranav Jain.

For the Respondents: Mr. Amit Ahlawat, APP for State. Mr.SS.Ahluwalia, Advocate for R2/ Amicus Curie.

[CRL.M.C. 4636/2013, CRL.M.A.Nos.16659/2013, 17386/2020]

For the Petitioner: Mr. Ajay Digpaul, CGSC with Mr. Kamal R.Digpaul, Advocate

For the Respondents: Mr. S.S. Ahluwalia, Advocate/ amicus curie and Mr. Mohit Bansal, Advocate.

[CRL.M.C. 1762/2014, CRL.M.A.Nos.5882/2014, 17297/2020, 17299/2020]

For the Petitioner: Mr. Hrishikesh Baruah, Mr. Ajay P.Tushir, Mr. Shailendra Singh, Mr. Pranav Jain, Mr. Shahrukh, Advocates.

For the Respondents: Mr. Amit Ahlawat, APP for State. Mr.S.S.Ahluwalia, Advocate/ amicus curie and Mr. Mohit Bansal, Advocate for Mr. O.P.Bhola

Case BriefsHigh Courts

Madras High Court: N. Sathish Kumar, J., expressed that:

“…to constitute an offence under Section 500 of IPC, against the constitutional functionaries or the Minister of State, it has to be established by the prosecution that the alleged imputation made in respect of the conduct of a public servant/public functionary in discharge of his/her public functions and the public function stands on a different footing than the private activities of a public servant.

If the statement is made on mere criticism then it is a right guaranteed under Article 21 of the Constitution of India.”

The present criminal original petition was filed to quash the proceedings pending with regard to criminal cases related to elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai.

Prosecution submitted that in an interview, the petitioner gave a defamatory statement against the Chief Minister and Ministers of Government of Tamil Nadu which was telecasted in leading Television Channels and the same came in the leading dailies on a subsequent day.

In view of the above-stated complainant gave a complaint under Section 199(2) of CrPC of the alleged offence under Section 499 of IPC punishable under Section 500 IPC.

Analysis, Law and Decision

In the instant matter, the imputation alleged to have made by the petitioner was only an allegation made against the ministers in general and in no way connected with the discharge of their official functions.

“…power of quashing of a criminal proceedings should be exercised sparingly, with circumspection and in rarest of rare cases. The court, is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation.”

 Supreme Court decision in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, was cited.

Bench stated that the allegations in the FIR and the materials collected by the prosecution did not disclose the commission of any offence and made out a case against the accused and prosecution itself is instituted with an ulterior motive for wreaking vengeance, Court can exercise power under Section 482 CrPC.

Supreme Court in a catena of decisions such as Rajdeep Sardesai v. State of A.P., (2015) 8 SCC 239 held that judicial process should not be an instrument of oppression or needless harassment.

Mere allegation made against the Ministers in general without any intent on the part of the petitioner and/or without any nexus with discharge of public duties will not come under the purview of offence punishable under Section 500 of IPC.

 While taking cognizance of a complaint under Section 199(2) CrPC, defamation should be directly attributed to a person in discharge of his/her public functions and only in such circumstances the said provision would stand attracted.

Hence, in view of the above discussion, the pending complaint related to Members of Parliament and Members of Legislative Assembly of Tamil Nadu was liable to be quashed.

Before parting with the decision, High Court recorded that persons in public life and the leaders of various political parties should restrain themselves from making serious allegations or criticism against constitutional functionaries since leaders of political parties have huge followers and the same will have a serious impact on the followers and the followers also blindly follow the path of their leaders.

“…irrespective of the political affiliation, when a person raised to the level of leader of a political party should show atmost respect to the others in public life. Of course, every citizen of a democratic country have a freedom of speech, but at the same time such criticism should not exceed affecting the sentiments of others also.”

[T.T.V. Dhinakaran v. City Public Prosecutor, 2021 SCC OnLine Mad 1370, decided on 08-03-2021]

Advocates before the Court:

For Petitioner: Mr.P.S. Raman Senior Counsel for Mr N.Raja Senthoor Pandian

For Respondent: Mr.A.Natarajan, State Public Prosecutor

Case BriefsHigh Courts

Bombay High Court: G.S. Patel, J.,  while addressing a matter wherein the offence of defamation has been alleged, expressed:

Simply using another’s image, and most especially a private image, without consent is prima facie impermissible, unlawful and entirely illegal. In a given case, it may also be defamatory, depending on the type of use.

Instant suit was with regard to an action for damages in defamation and for a permanent injunction.

Plaintiff is a model and an actor.

Dispute that needs to be addressed is with regard to the 1st and 2nd defendants utterly illicit use of a still image of the plaintiff in their 2020 Telugu film entitled ‘V’. The said film was is available on Amazon Prime.

Plaintiff, as a part of her professional work, commissioned a photographer to prepare a photo portfolio, 5 years ago. Photographer had shared the images with the plaintiff via a Google link or on Instagram, after which the plaintiff uploaded at least part of this photo portfolio to her Instagram account.

The grievance is that, a photograph from the above mentioned privately commissioned portfolio has been used in that portion of 1st and 2nd Defendants’ film where there is a reference to a female escort or a commercial sex worker. Further, it has been added that, What is depicted in the film is a message on a mobile screen with an image; and the image used is one of those from the Plaintiff’s portfolio, apparently lifted from her Instagram account.

Counsel for the plaintiff has hence submitted that the plaintiff’s image has been used unauthorizedly to depict her in the motion picture as an escort or commercial sex worker.

Hence the plaintiff submitted that all of the above amounts to defamation.

High Court on perusal of the above prima facie believed the above averments of plaintiff’s counsel to be correct, and added that:

“…I do not believe there is any other way of looking at it.” 

Adding to the above, Bench stated that any right-thinking motion picture producer would have insisted on seeing an approval or consent by the model or person who is featured or to be featured.

“…it is not possible to use the image of any person for a commercial purpose without express written consent. If images are to be used without such express consent, they must be covered by some sort of legally enforceable and tenable licensing regime, whether with or without royalty.”

Bench directed defendant 3 to take down the telecast of the film in all versions, irrespective of language and sub-titles, until such time as the 1st and 2nd defendants have completely deleted all images of the Plaintiff from their work.

To merely pixelate or blur the images, won’t be acceptable. The entire sequence which has the plaintiff’s image is to be removed immediately.

Court added, If the 1st and 2nd Defendants wish to replace the deleted segments, they are free to do so but without using any of the Plaintiff’s images in any shape, fashion or form without her express written consent.

Additionally, the Bench added in its list of instructions, the 1st and 2nd Defendants are restrained from releasing their film on any media platform or through any medium or in any version until the deletions that have been indicated above are effected.

Correspondingly, the 3rd Defendant is not to release any re-edited version of the film without a specific order of this Court following the deletion of the offending portion. The 1st and 2nd Defendants will have to show Mr Kirpekar and his client the altered portion before the Court will permit the 3rd Defendant to re-release this film.

Matter to be listed on 08-03-2021. [Sakshi Malik v. Venkateshwara Creations (P) Ltd.,  2021 SCC OnLine Bom 352, decided on 02-03-2021]

Advocates who appeared for the matter:

Mr Alankar Kirpekar, with Saveena T Bedi, i/b Lawhive Associates, for the Plaintiff

Mr Akash Menon, with Bency Ramakrishnan, i/b Akash Menon, for Defendants Nosf 1 and 2f

Mr Thomas George, with Nikhil Sonker, i/b Saikrishna & Associates, for Defendant Nof 3f

Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., quashed a complaint about defamation filed by a lawyer against Business Standard. It was held that the complainant had no locus to file the complainant.

What do the petitioners want?

Petitioner sought the quashing of Order as well as Complaint Case titled: Lohitaksha Shukla v. Business Standard (P) Ltd. pending before the Metropolitan Magistrate.

What was the basis of complaint?

Complaint was based on an article titled: “The Long and Short of it” which was published in the petitioner’s newspaper – Business Standard under the authorship of Mitali Saran.

Averments of the Complainant

Lohitaksha Shukla, Complainant who was an advocate by profession averred that he was informed about the factum of publication of the article by his friends. In the complaint he alleged that the article was not based on facts and contained some defamatory insinuations against RSS and it’s members, as it accused members of RSS being oppressive to Indians, mentally disturbed and disrespectful to Indian National Symbols ridden with psycho sexual complexes, practitioners of discrimination based on caste and physically unfit.

Further, he added that being a member of RSS, his reputation had been adversely affected.

Metropolitan Magistrate found that there was sufficient material for summoning the accused 1, 2 and 3 under Section 500 IPC.

Petitioner’s Stand

Petitioners submitted that if a Magistrate were to take cognizance of the offence of defamation on a complaint filed by one who was not an “aggrieved person”, the trial and conviction of an accused in such a case by Magistrate would be void and illegal.

Petitioner 2 has averred that the allegation of complainant that he was ‘Editor in Chief’ of petitioner 1 at the time of publication of the article was baseless, as he had never been ‘Editor in Chief’ of petitioner 1.

Adding to the above, it was submitted that the complainant was not “person aggrieved” within the meaning of Section 199(1) CrPC and hence, was not competent to institute a private complaint and even if the complaint was taken on the face value, the same did not disclose any offence whatsoever which falls within the ambit of Sections 499 and 500 IPC.

Complainant could not establish how his reputation was harmed or his moral or intellectual character was lowered as a result of the said article. Though he claimed that he had been asked by his friends to leave RSS as a result of that article, but he could not bring anyone to the witness box in support of the said assertion, hence failed to prove that article brought any kind of defamation to him.

Bench noted that Section 199(1) CrPC mandated that the magistrate could take cognizance of the offence only upon receiving a complaint by a person who was aggrieved.

Purpose and intent of this provision is to limit the power of Magistrate to take cognizance of offences pertaining to defamation in order to prevent and discourage the filing of frivolous complaints. 

Court observed that, in the present case, the complainant had not been able to show as to how he was the “person aggrieved” within the definition of Section 199(1) CrPC and thus, the contents of complaint suffered from vices of illegality or infirmity. Even complainant was not a part of “identifiable class” or definite “association or collection of persons” as enumerated in Explanation (2) to Section 499 of IPC.

Trial Court did not take into consideration the above-stated provision.

High Court referred to the Supreme Court decision in Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 with regard to the scope of “opinion of Magistrate”.

Hence, in view of the above discussions, Court held that the complaint in question was not maintainable and was liable to be dismissed.  [Business Standard (P) Ltd. v. Lohitaksha Shukla,  2021 SCC OnLine Del 988, decided on 01-03-2021]

Case BriefsDistrict Court

Rouse Avenue Court, New Delhi: Ravindra Kumar Pandey, ACMM, in an essentially significant decision revolving around the  #MeToo movement, acquitted Priya Ramani (accused) and held that no case under Section 500 of the Penal Code, 1860 was found against her.

“Most of the women who suffer abuse do not speak up about it or against it for simple reason “The Shame” or the social stigma attached.”

 “The woman has a right to put her grievance at any platform of her choice and even after decades.”

What led to the filing of the present complaint under Section 500 IPC?

Complainant MJ Akbar, who was a politician moved the present complaint alleging accused Priya Ramani, a Journalist for defaming and damaging the complainant’s reputation by way of tweets, articles, etc. While presenting the set of allegations, complainant stated that the accused had made false, derogatory and malicious imputations against him such as:

I began this piece with my MJ Akbar story. Never named him because he didn’t ‘do’ anything. Lots of women have worse stories about this predator­ maybe they’ll share’, ‘ the media’s biggest sexual predator’. ‘ How many more stories do you need to hear?’, ‘Am glad # MJ Akbar won’t be in the workplace any more but Akbar represent countless men who believe they can say and do whatever they want to women without any consequences’. ‘You’re an expert on obscene phone calls, texts, inappropriate compliments and not taking no for an answer’.

Another allegation that the complainant puts forward is the accused herself, while putting forward the above mentioned quoted defamatory statements, relating to an incident occurred 20 years ago, admits that the complainant did not do anything to her.

Allegations of the Accused as: Figment of her imagination

Complainant goes on to submit that accused’s conduct on taking any action before any authority, with respect to the alleged incident clearly belies the sanctity of the articles and allegation made against the complainant with the intention to malign his reputation.

It was further alleged by the complainant that accused Priya Ramani had resorted to a series of maliciously fabricated allegations, which was diabolically and viciously spread by her by using media.

All of the above caused great humiliation and damaged the complainant’s goodwill and reputation in his social circles and on the political stage.

On the basis of pre-summoning evidence led by the complainant, accused Priya Ramani was summoned by this Court for commission of offence punishable under Section 500 IPC.

Priya Ramani’s Defence

Accused took the defence that she made the publication of the articles and tweets in good faith for protection for other women’s interest in general regarding sexual harassment at the workplace. Accused contended that her publication covered under the exception 1,3 and 9 of Section 499 IPC.

Further, it was added that the complainant was not a man of stellar and impeccable reputation and the accused did not defame him by publishing the tweets and article.

Analysis and Decision

It cannot be ignored that most of the time, the offence of sexual ­harassment and sexual abuse is committed in the close doors or privately. Sometimes the victims herself does not understand what is happening to them or what is happening to them is wrong. Despite how well respected some persons are in society, they in their personal lives, could show extreme cruelty to the females.

While analysing the facts and circumstances of the case, Bench considered the systematic abuse at the workplace due to the lack of mechanism to redress the grievance of sexual harassment at the time of the incident of sexual harassment against the accused Priya Ramani and witness Ghazala Wahab prior to the enactment of The Sexual­ Harassment of women at workplace ( Prevention, Prohibition and Redressal) Act, 2013, or their option to not lodge the complaint of sexual ­harassment due to the social stigma attached with the sexual ­harassment of women.

Unaware of what is happening

Bench while addressing the issue of sexual abuse expressed that victims of sexual abuse not even speak a word about abuse for many years because sometimes she herself has no idea that she is a victim of abuse.

“…victim may keep believing that she is at fault and victim may live with that shame for years or for decades.”

Defamation complaint against sexual abuse victims

Court stated that woman cannot be punished for raising voice against the sexual­ abuse on the pretext of criminal complaint of defamation as the right of reputation cannot be protected at the cost of the right of life and dignity of woman as guaranteed in Constitution of India under Article 21 and right of equality before the law and equal protection of the law as guaranteed under Article 14 of the Constitution.

While concluding with its decision, Bench asserted that the ‘glass ceiling’ will not prevent the Indian Women as a road lock for their advancement in society, if equal opportunity and social protection be given to them.

Therefore, while acquitting Priya Ramani of the offence under Section 500 IPC, Court directed her to furnish bail bonds and surety bonds in terms of Section 437-A CrPC. [Mobashar Jawed Akbar v. Priya Ramani, Complaint Case no. 05 of 2019, decided on 17-02-2021]

Op EdsOP. ED.

1.Every person has a right to have his reputation preserved inviolate. It is a jus in rem, a right good against all in the world.

2. Defamation in law, means attacking another person’s reputation by a false publication (communication to a third party), tending to bring the person into disrepute.

As per MerriamWebster Dictionary, defamation means the act of communicating false statements about a person that injure the reputation of that person.

Black’s Law Dictionary records that defamation means offence of injuring a person’s character, fame, or reputation by false and malicious statements.

3. Section 499 of Penal Code, 1860[1] defines defamation as:

Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

 Explanation 1.— It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2.— It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

 Explanation 3.— An imputation in the form of an alternative or expressed ironically, may amount to defamation.

 Explanation 4.— No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.

4. Defamation is a public communication which tends to injure the reputation of another. What statements are defamatory and the span of defences varies from jurisdiction to jurisdiction but there is common agreement in all jurisdictions that statements that are unflattering, annoying, irksome, embarrassing or hurt one’s feelings are not actionable. Common element in all jurisdictions is the potential to injure the reputation. (Refer Ram Jethmalani Subramaniam Swamy.[2])

5. For any defamation action under special law of torts to be successful, the following essential elements are to be proved before the court:

(i) the statement is made by words, either spoken or intended to be read, or by signs or by visible representations;

(ii) the said statement must refer to the plaintiff;

(iii) the statement must be defamatory;

(iv) the person making the defamatory statement knows that there are high chances of other people believing the statement to be true and it will result in causing injury to the reputation of the person defamed;

(v) the statement should be false;

(vi) the statement should not be privileged;

(vii) the statement must be published;

(viii) the third party believes the defamatory matter to be true; and

(ix) the statement must cause injury.

6. However, there are certain exceptions to the general rule:

(i) If the statement made is truth, then it does not constitute defamation.

(ii) If it is a fair comment made in public interest.

The Delhi High Court in Sasikala Pushpa v. Facebook India[3], while dismissing the suit, held that if the people like the plaintiff meet someone behind closed doors, more particularly a person of rival political party, such matters are of public interest and the public at large has a right to know the true state of affairs, the same outweighing the private interest of the plaintiff of keeping the same hidden from public eyes. Therefore, such a public interest shall be an exception to make somebody liable for defamation and to seek injunction against him/them.

 Defence of absolute and qualified privileges.— Absolute privilege gives the person an absolute right to make the statement even if it is defamatory, as the person is immune from liability arising out of defamation lawsuit. Generally, absolute privilege exempts defamatory statements made during judicial proceedings; by government officials; by legislators during debates in the parliament; during political speeches in parliamentary proceedings; and communication between spouses.

When a person making the statement has a legal, social or moral duty to make it and the listener has an interest in it, then the defence of qualified privilege is allowed. Generally, such a defence can be availed in case of reference for a job applicant; response to police enquiries; fair criticism of a published book or movie in review; communication between parents and teachers; communication between employers and employees; and communication between traders and credit agencies.

In Ram Jethmalani[4], the Delhi High Court while dwelling upon absolute and qualified privileges, in the context of defamation, observed as:

“67. Even the issue of absolute privilege has remained a subject-matter of considerable debate. Is absolute privilege absolute in the sense of being infinite? As late as 1998, in the decision reported as Waple v. Surrey County Council[5], it was held:

The absolute privilege which applies to statements made in the course of judicial or quasi-judicial proceedings and in the documents made in such proceedings, would only be entitled where it was strictly necessary to do so in order to protect those who were to participate in the proceedings from being sued themselves.

  1. The decision brings out that absolute privilege is not absolute in the context of being infinite. Even when the occasion is privileged one gets no licence to utter irrelevant and scandalous things unrelated to the proceedings. If what is stated is necessary or relevant to the proceedings, immunity would be absolute.

                                                *                    *                         *

  1. Qualified privilege may be defeated and its protection destroyed by proof of express malice. But how is express malice to be established?”

(iv) If the statement made is an opinion and not a statement of fact, then the said statement cannot be termed as defamatory.

(v) If a person consents to a statement made, then there is no defamation.

(vi) Censure passed in good faith by the person having lawful authority.

(vii) Accusation made in good faith against a person who has lawful authority over that person is not defamation.

7. Under the law of defamation, the test of defamatory nature of a statement is its tendency to incite an adverse opinion or feeling of other persons towards the plaintiff. A statement is to be judged by the standard of ordinary, right thinking members of society at the relevant time. The words must have resulted in the plaintiff to be shunned or evaded or regarded with the feeling of hatred, contempt, ridicule, fear, dislike or disrespect or to convey an imputation to him or disparaging him or his office, profession, calling, trade or business.

8. Defamation can either be libel or slander. Libel is a publication of false and defamatory statement tending to injure the reputation of another person without lawful justification. For example, writing, printing, etc. On the other hand, slander is a false and defamatory statement by spoken words or gestures tending to injure the reputation of another.

9. Defamation traditionally requires the proof of publication of a matter intentionally and with malice. It is important to mention that any person who intentionally and maliciously publishes or distributes such defamatory statement, is also liable as if he has made the statement himself. However, if the defendant proves that the statement is true he will not be liable for such defamation. In India and most other common law countries, the burden of proof is on the defendant to show that the statement is true or the publication was not intentional.

10. The right to reputation, as per the judicial interpretation, is a dimension of the right of life and also comes in the ambit of Article 21 of the Constitution of India[6]. In Subramanian Swamy Union of India[7], where defamation was sought to be decriminalised, challenging the constitutional validity of Sections 499 and 500 of the Penal Code, 1860 alleging them to be unreasonable restriction on the freedom of speech and expression, the Supreme Court held that criminal defamation under Sections 499 and 500 did not violate Article 19(1)(a) as it is a reasonable restriction under Article 19(2). The term “defamation” in Article 19(2) includes both civil and criminal defamation. Sections 499 and 500 IPC were held to be non-discriminatory and non-arbitrary and not violative of the right to equality guaranteed under Article 14 of the Constitution. While in a democracy, an individual has a right to criticise and dissent, but his right under Article 19(1)(a) is not absolute and he cannot defame another person as that would offend the victim’s fundamental right to reputation which is an integral part of Article 21 of the Constitution of India.

11. A nine-Judge Bench of the Supreme Court inS. Puttaswamy v. Union of India[8], has authoritatively elucidated the following important principles regarding right to privacy:

(i) the right of privacy is a fundamental right;

(ii) it is a right which protects the inner sphere of the individual from interference from both State and non-State actors and allows the individuals to make autonomous life choices;

(iii) technology has made it possible to enter a citizen’s house without knocking at his/her door and this is equally possible both by the State and non-State actors;

(iv) it is an individual’s choice as to who enters his house, how he lives and in what relationship;

(v) privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity;

(vi) if the individual permits someone to enter the house it does not mean that others can enter the house; the only check and balance is that it should not harm the other individual or affect his/her right;

(vii) the only permitted exception is where there is a countervailing public interest which in particular circumstances is strong enough to outweigh it;

(viii) the question to be asked is, was it necessary and proportionate for the intrusion to take place, for example, in order to expose illegal activity or to prevent the public from being significantly mislead by public claims made by the individual concern or what it necessary because the information would make a contribution to a debate of general interest; and

(ix) the court, in order to decide a case, must carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.

12. The internet has made it easier than ever before to spread a huge amount and variety of information worldwide. Social network websites (SNWs) are, at a grass root level, a medium for exchanging information between people. SNWs allow any person to write any statement, including the defamatory one, on their own or on a third party’s virtual profile. In this scenario, the question which arises is: who can be sued by the person against whom such defamatory statement has been made? Under the operative Indian Law, the person who made such statement as well as its distributor and publishers can be sued. Apart from the author of such statement, intermediaries such as SNWs concerned, the website holder, the internet service providers, as well as other users of such SNWs on whose profiles defamatory statements have been written by the author, can be sued in their capacity as publisher of defamatory statements and can be held liable for such statements. It is to be noted that such intermediaries or other users of SNWs may not be aware of such defamatory statements by the author on their own virtual profile.

13. Section 2(1)(w) of Information Technology Act, 2000[9] (ITA) defines “intermediary” as under:

“intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.

14. Section 79 of ITA[10] gives immunity to intermediary. According to clause (1) to the said section, an intermediary shall not be liable under the Act or Rules or Regulations made thereunder, for any third-party information or data made available by him, if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

In Shreya Singhal v. Union of India[11], wherein Section 66-A of ITA was a subject-matter of challenge, inter alia, for providing protection against annoyance, inconvenience, insult, injury, or criminal intimidation, all not covered under Article 19(2) of the Constitution of India, the Supreme Court found the said impugned section of ITA to be vague, and invalidated it on the ground of being violative of the right to freedom of speech and expression. It further held that the liability of an intermediary under the ITA shall arise only where the intermediary upon receiving actual knowledge from a valid court order or otherwise that unlawful acts relatable to Article 19(2) of the Constitution of India are going to be committed, fails to expeditiously remove or disable access to such material.

. Achal Gupta is an Advocate and a qualified Chartered Accountant, presently practising at Supreme Court and Delhi High Court. Author’s views are personal only.

[1] Section 499 IPC.

[2] 2006 SCC OnLine Del 14.

[3] 2020 SCC OnLine Del 618.

[4] 2006 SCC OnLine Del 14.

[5] (1998) 1 WLR 860 : (1998) 1 All ER 625.

[6]Constitution of India, Article 21.

[7] (2016) 7 SCC 221.

[8] (2017) 10 SCC 1.

[9] Information Technology Act, 2000.

[10] Ibid, Section 79.

[11] (2015) 5 SCC 1.

Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J., while addressing the instant matter with regard to the application of Section 228A of Penal Code, 1860 and subsequently the provision of defamation expressed that:

“…publishing of newspaper report of facts of lodging of an FIR cannot be said to be defamatory, especially when the FIR has been lodged by the victim herself.”

Through this interlocutory application it was submitted that during the pendency of the case, lower court cancelled the bail bonds of the petitioners, which necessitated the filing of the instant interlocutory application.

The criminal miscellaneous petition under Section 482 of the Code of Criminal Procedure was filed by the petitioners to quash the order taking cognizance by which cognizance of offence under Sections 228 (A)/500/501/34 of the Penal Code, 1860 was been taken by the Judicial Magistrate.

OP 2 had filed a complaint against the petitioners who happen to be the Publisher, Chief Editor, Senior Editor and Resident Editor of a local newspaper and also against the newspaper itself and its publisher alleging therein that a newspaper report was published in the said newspaper with the following heading:

The said report contained that the victim was married and there was some dispute in relation to their residential house. She was subjected to sexual assault.

Complainant lodged a criminal complaint against the petitioners who happen to be the Editor and other officials of the newspaper alleging therein that as a result of the reporting of the FIR and incident, the victim was being harassed daily and sustained mental torture hence the said report amounts to be defamatory in nature.

Lower court on taking cognizance of the above incident issued summons to the petitioners.

Analysis and Decision

Bench noted that the said newspaper as stated above published a report about a lady, who had filed an FIR alleging that she was sexually assaulted after being administered with some narcotics. Though the sum and substance of the FIR was mentioned in the report no identity disclosure of the victim was reported.

Further, the Court added that only because the petitioners were Publisher, Chief Editor, Senior Editor and Resident Editor of the newspaper, they were named as accused.

In the complaint submitted it was nowhere mentioned that the fact reported was false, rather it was admitted that the fact, which was reported was true and the FIR had already been lodged by the victim under Sections 376/328 of the IPC.

In view of the above, Court stated that on perusal of the newspaper report it was found that name of the victim was not disclosed and since nothing was found in the newspaper report, which could suggest that the identity was made known, no application of Section 228 A IPC was made out.

Hence the Court held that in the present case it was a news which was admitted to be not false, thus not amounting to the application of Section 500 or 501 of the Penal Code, 1860.

High Court allowed the present criminal miscellaneous petition in view of the above discussion. [Ashutosh Choubey v. State of Jharkhand, 2019 SCC OnLine Jhar 2484, decided on 24-10-2019]

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Sanjiv Khanna, JJ has held that the true test of a valid FIR is only whether the information furnished provides reason to suspect the commission of an offence which the police officer concerned is empowered under Section 156(1) of the Criminal Code to investigate.

“The questions as to whether the report is true; whether it discloses full details regarding the manner of occurrence; whether the accused is named; or whether there is sufficient evidence to support the allegation are all matters which are alien to consideration of the question whether the report discloses commission of a cognisable offence.”

  1. FIR or the First Information Report, is neither defined in the Criminal Code nor is used therein, albeit it refers to the information relating to the commission of a cognisable offence. This information, if given orally to an officer in-charge of the police station, is mandated to be reduced in writing.
  2. The informant who lodges the report of the offence may not even know the name of the victim or the assailant or how the offence took place. Information to be recorded in writing need not be necessarily by an eye-witness, and hence, cannot be rejected merely because it is hearsay. Section 154 does not mandate nor is this requirement manifest from other provisions of the Criminal Code. Thus, at this stage, it is enough if the police officer on the information given suspects – though he may not be convinced or satisfied – that a cognisable offence has been committed.
  3. Section 154 of the Criminal Code, in unequivocal terms, mandates registration of FIR on receipt of all cognisable offences, subject to exceptions in which case a preliminary inquiry is required[1].
  4. There is a distinction between arrest of an accused person under Section 41 of the Criminal Code and registration of the FIR, which helps maintain delicate balance between interest of the society manifest in Section 154 of the Criminal Code, which directs registration of FIR in case of cognisable offences, and protection of individual liberty of those persons who have been named in the complaint.
  5. FIR is not an encyclopaedia disclosing all facts and details relating to the offence[2]. It is not meant to be a detailed document containing chronicle of all intricate and minute details. FIR is not even considered to be a substantive piece of evidence and can be only used to corroborate or contradict the informant’s evidence in the court[3].
  6. Even if information does not furnish all details, it is for the investigating officer to find out those details during the course of investigation and collect necessary evidence[4]. Thus, the information disclosing commission of a cognisable offence only sets in motion the investigating machinery with a view to collect necessary evidence, and thereafter, taking action in accordance with law.
  7. As per clauses (1) (b) and (2) of Section 157 of the Criminal Code, a police officer may foreclose an FIR before investigation if it appears to him that there is no sufficient ground to investigate. At the initial stage of the registration, the law mandates that the officer can start investigation when he has reason to suspect commission of offence.
  8. Requirements of Section 157 are higher than the requirements of Section 154 of the Criminal Code. Further, a police officer in a given case after investigation can file a final report under Section 173 of the Criminal Code seeking closure of the matter.

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, decided on 07.12.2020]

[1] Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1

[2] Ibid

[3] Dharma Rama Bhagare v. State of Maharashtra, (1973) 1 SCC 537

[4] Superintendent of Police, CBI and Others v. Tapan Kumar Singh, (2003) 6 SCC 175

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar and Sanjiv Khanna, JJ refused to quash the FIRs registered against News18 Journalist Amish Devgan for using the term “Lootera Chisti” in one of his shows but has granted interim protection to him against arrest subject to his joining and cooperating in investigation till completion of the investigation.

While holding this, the bench made an attempt to define “hate speech” albeit it was of the opinion that a universal definition of ‘hate speech’ remains difficult, except for one commonality that ‘incitement to violence’ is punishable.

Here are 15 notable excerpts from the judgment that runs to 128 pages:

  1. Criminality would not include insults to religion offered unwittingly, carelessly or without deliberate or malicious intent to outrage the religious feelings. Only aggravated form of insult to religion when it is perpetuated with deliberate and malicious intent to outrage the religious feelings of that group is punishable. [1]
  2. Criticism and comments on government’s action in howsoever strong words would not attract penal action as they would fall within the fundamental right of freedom of speech and expression.[2]
  3. Dissent and criticism of the elected government’s policy, when puissant, deceptive or even false would be ethically wrong, but would not invite penal action. Elected representatives in power have the right to respond and dispel suspicion. The ‘market place of ideas’ and ‘pursuit of truth’ principle are fully applicable. Government should be left out from adjudicating what is true or false, good or bad, valid or invalid as these aspects should be left for open discussion in the public domain. (…) Political speech relating to government policies requires greater protection for preservation and promotion of democracy. Falsity of the accusation would not be sufficient to constitute criminal offence of ‘hate speech’.

  4. Security of the State, public order and law and order represent three concentric circles: law and order being the widest, within which is the next circle representing public order and the smallest circle represents the security of the State. The phrase ‘security of the State’ is nothing less than endangering the foundations of the State or threatening its overthrow. It includes events that have national significance or upheavals, such as revolution, civil strife, war, affecting security of the State but excludes breaches of purely local significance. The phrase ‘minor breaches’ refers to public inconvenience, annoyance or unrest. The phrase ‘in the interest of…public order’, in the context of clause (2) to Article 19, would mean breaches of purely local significance, embracing a variety of conduct destroying or menacing public order.[3]
  5. A speech by ‘a person of influence’ such as a top government or executive functionary, opposition leader, political or social leader of following, or a credible anchor on a T.V. show carries a far more credibility and impact than a statement made by a common person on the street. (…)The reasonable-man’s test would always take into consideration the maker. (…) This is not to say that persons of influence like journalists do not enjoy the same freedom of speech and expression as other citizens, as this would be grossly incorrect understanding of what has been stated above. This is not to dilute satisfaction of the three elements, albeit to accept importance of ‘who’ when we examine ‘harm or impact element’ and in a given case even ‘intent’ and/or ‘content element’.

  6. The terms ‘public order’ and ‘public tranquillity’ do overlap to some extent but are not always synonymous as ‘public tranquillity’ is a much wider expression and it’s breach may even include things that cannot be described as public disorder. (…) For breach of public order, it is not necessary that the act should endanger the security of the State, which is a far stricter test, but would not include every kind of disturbance of society. Accepting that ‘law and order’ represents the largest circle within which is the next circle representing ‘public order’ and inside that the smallest circle representing the ‘security of the State’ is situated, it was observed that State is at the centre and the society surrounds it. Disturbances of society can fall under broad spectrum ranging from disturbance of serenity of life to jeopardy of the State. Therefore, the journey travels first through public tranquillity then through public order and lastly to the security of the State.[4]
  7. Public order would embrace more of the community than law and order. Public order refers to the even tempo of the life of the community taking the country as a whole or even a specified locality.[5] (…) The test which is to be examined in each case is whether the act would lead to disturbance of the current life of the community so as to amount to disturbance of public order, or does it affect merely an individual leaving the tranquillity of the society undisturbed. The latter is not covered under and restriction must meet the test of ordre publique affecting the community in the locality.

  8. Dignity is a part of the individual rights that form the fundamental fulcrum of collective harmony and interest of a society. While right to speech and expression is absolutely sacrosanct in the sense that it is essential for individual growth and progress of democracy which recognises voice of dissent, tolerance for discordant notes and acceptance of different voices, albeit the right to equality under Article 14 and right to dignity as a part of Article 21 have their own significance.[6]
  9. Individual dignity can be achieved in a regime which recognises equality with other citizens regardless of one’s religious beliefs or the group to which one belongs. Religious beliefs and faiths ensure wider acceptance of human dignity and liberty, but when conflict arises between the two, the quest for human dignity, liberty and equality must prevail.[7]

  10. Dignity of individual and unity and integrity of the nation are linked, one in the form of rights of individuals and other in the form of individual’s obligation to others to ensure unity and integrity of the nation. The unity and integrity of the nation cannot be overlooked and slighted, as the acts that ‘promote’ or are ‘likely’ to ‘promote’ divisiveness, alienation and schematism do directly and indirectly impinge on the diversity and pluralism, and when they are with the objective and intent to cause public disorder or to demean dignity of the targeted groups, they have to be dealt with as per law. The purpose is not to curtail right to expression and speech, albeit not gloss over specific egregious threats to public disorder and in particular the unity and integrity of the nation.
  11. To ensure maximisation of free speech and not create ‘free speaker’s burden’, the assessment should be from the perspective of the top of the reasonable member of the public, excluding and disregarding sensitive, emotional and atypical. (…) This does not mean exclusion of particular circumstances as frequently different persons acting reasonably will respond in different ways in the context and circumstances. This means taking into account peculiarities of the situation and occasion and whether the group is likely to get offended. At the same time, a tolerant society is entitled to expect tolerance as they are bound to extend to others.

  12. Freedom and rights cannot extend to create public disorder or armour those who challenge integrity and unity of the country or promote and incite violence. Without acceptable public order, freedom to speak and express is challenged and would get restricted for the common masses and law-abiding citizens. This invariably leads to State response and, therefore, those who indulge in promotion and incitement of violence to challenge unity and integrity of the nation or public disorder tend to trample upon liberty and freedom of others.
  13. Communities with a history of deprivation, oppression, and persecution may sometimes speak in relation to their lived experiences, resulting in the words and tone being harsher and more critical than usual. Their historical experience often comes to be accepted by the society as the rule, resulting in their words losing the gravity that they otherwise deserve. (…) Such speech should be viewed not from the position of a person of privilege or a community without such a historical experience, but rather, the courts should be more circumspect when penalising such speech. This is recognition of the denial of dignity in the past, and the effort should be reconciliatory.

  14. Loss of dignity and selfworth of the targeted group members contributes to disharmony amongst groups, erodes tolerance and open-mindedness which are a must for multi-cultural society committed to the idea of equality. It is however necessary that at least two groups or communities must be involved; merely referring to feelings of one community or group without any reference to any other community or group does not attract the ‘hate speech’ definition.
  15. There are multiple justifications for ‘tolerance’, which include respect for autonomy; a general commitment to pacifism; concern for other virtues such as kindness and generosity; pedagogical concerns; a desire for reciprocity; and a sense of modesty about one’s ability to judge the beliefs and actions of others. However, tolerance cannot be equated with appeasement, permissiveness, or indifference. It is also not identical to neutrality. Toleration requires self-consciousness and self-control in a sense that it is a restraint of negative judgment that is free and deliberate. It implies no lack of commitment to one’s own belief but rather it condemns oppression or persecution of others.

[Amish Devgan v. Union of India, 2020 SCC OnLine SC 994, decided on 07.12.2020]

*Justice Sanjiv Khanna has penned this judgment 

[1] Ramji Lal Modi v. State of UP, AIR 1957 SC 620

[2] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955

[3] Superintendent, Central Prison, Fatehgarh v. Dr. Ram Manohar Lohia, AIR 1960 SC 633

[4] Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, (1970) 3 SCC 746

[5] Shreya Singhal v. Union of India, (2015) 5 SCC 1

[6] Subramanian Swamy v. Union of India, (2016) 7 SCC 221

[7] India Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1

Also read: SC refuses to quash FIRs for remarks on Sufi saint Khwaja Moinuddin Chisti but Amish Devgan not to be arrested pending investigation

Case BriefsHigh Courts

Punjab and Haryana High Court: Sanjay Kumar, J., quashed the proceedings under Section 499 IPC against the petitioner holding that the complainant was neither a family member nor a near relative of the deceased whose defamation was alleged to have been caused by the petitioner, and hence the complaint itself was not maintainable.

The instant petition was filed under Section 482 of the Criminal Procedure Code, 1973 seeking to quash complaint titled Sant Kanwar v. Raj Kumar Saini, Complaint No. 83 of 2018 under Sections 499, 500 and 501 of Penal Code, 1860.

It was noted by the Court that the issue of maintainability of the instant petition under Section 482 CrPC stands settled in favour of the petitioner as the inherent powers of this Court cannot be curtailed by existence of the alternative remedy of revision under Section 397 CrPC. 

On perusal of the complaint, respondent-complainant demonstrated that he claimed to be a follower of late Chaudhary Matu Ram Hooda, an Arya Samajist and freedom fighter. He stated that late Chaudhary Matu Ram Hooda was an inspiration and a guiding light for him. While so, he claimed to have read newspapers on 02-04-2018 and 03-04-2018, wherein it was reported that the petitioner had made several defamatory statements against late Chaudhary Matu Ram Hooda. It is on the strength of these newspaper reports that he filed the subject complaint alleging that the petitioner had committed the offence of defamation.

Section 199 CrPC deals with prosecution for defamation. Sub-section 1 thereof states that no Court should take cognizance of an offence punishable under Chapter XXI of the Penal Code, 1860, except upon a complaint made by some person aggrieved by the offence. The said provision mandates that the complaint made by a ‘person aggrieved’.

Section 499 IPC defines defamation and Explanations 1 and 2 appended thereto give an indication as who would be a ‘person aggrieved’. Explanation 1 states that imputing anything to a deceased person would amount to defamation, if such imputation would have harmed the reputation of that person had he been living and such imputation is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2 states that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

In view of the above, the Court stated that the ‘person aggrieved’ must have an element of personal interest, being either the person defamed himself or in the case of a deceased person, his family member or other near relatives.

Section 320 CrPC permits compounding of the offence of defamation but it is only the person who is defamed who can agree to the same. For the said, Patna High Court’s decision in Bhagwan Shree Rajneesh v. State of Bihar, 1986 SCC OnLine Patna 174 was referred to, wherein it was observed that though generally, the person aggrieved is only the person defamed, an exception has been made in the case of a deceased person but the ‘persons aggrieved’ even in such case are limited only to members of his family or his near relatives, whose feelings would be hurt by the defamatory statement, and none else.

In the instant case, the respondent-complainant did not claim to be a member of the family of late Chaudhary Matu Ram Hooda or his near relative. The summoning order manifested that he contended before the Magistrate that he fell within the definition of a ‘person aggrieved’ as his family was closely ‘related’ to late Chaudhary Matu Ram Hooda, but this claim seemed to have been based more on ideological considerations rather than any actual ‘relationship.

Explanation 1 to Section 499 IPC makes it amply clear that it is only the ‘family members’ or ‘near relatives’ of the deceased person, against whom imputations have been made, who can claim to be ‘persons aggrieved’.

Therefore, the respondent-complainant, who is not a ‘family member’ or ‘near relative’ of late Chaudhary Matu Ram Hooda, cannot unilaterally assume unto himself the status of an ‘aggrieved person’ under Section 199 CrPC, whereby he could assert that his feelings were hurt and maintain the subject complaint against the petitioner before the Magistrate for the alleged offence of defamation.

In view of the above discussion, the Court stated that the complaint was deficient and tainted in its very inception, therefore not maintainable. [Raj Kumar Saini v. Sant Kanwar, 2020 SCC OnLine P&H 2165, decided on 02-12-2020]

Case BriefsHigh Courts

Kerala High Court: P. Somarajan, J., observed that,

“…fourth estate is not expected to shy away from the matters governing public importance, but it is their solemn duty to serve the society with the news item with its pros and cons so as to bring the society more functional and vigil.”

The Managing Editor, the Chief Editor and the Printer and Publisher of a daily newspaper came up to quash the proceedings initiated on the allegation of the offence under Section 500 of Penal Code, 1860 through a private complaint on which cognizance was taken by the magistrate and process was issued under Section 204 of Criminal Procedure Code, 1973.

The news item published was based on a report submitted by the Vigilance to set the criminal law in motion against the defacto complainant.

With reference to the news item published, it was clear that what was reported was the true version of report submitted by the Vigilance against the defacto complainant and three others after conducting a preliminary enquiry and recommended registration of crime against them.

It is true that they were referred to as accused persons in the news item, even before registration of crime in connection with the allegations.

While addressing the instant matter, Court observed that,

It is the duty of the fourth estate to publish all news materials, especially having public importance and it is their further duty to comment on the news material with its pros and cons so as to enlighten the society to remain vigil on the matters of public importance.

It was further noted that,

fourth estate being one of the rostrums to address and comment on each and every matter governing public interest/ public importance in a democratic society, the news item published with necessary comments, though sometimes contemptuous, may not itself amount to defamation as defined under Section 499 IPC unless the same is lacking in good faith and not concerning with a matter of public interest or public good.

Section 499 IPC Proviso 1

Bench observed that the said provision has a wide canvass in a Democratic system and right to publish a news item with its necessary comments and views though sometimes contemptuous, cannot be defeated unless malafides writ large on its face and not concerning with a matter of public interest.


Court observed that, Contemptuous nature of news item, if it is connected with the imputation of truth, which requires publication for the public goodwill not attract the offence and there shall not be any misunderstanding with respect to the requirement to attract Section 499 IPC with the first exception.

Hence, in the instant case, news item published will not attract the offence of defamation as defined under Section 499 IPC.

Further, it was that the private complaint submitted was really intended to defeat the solemn function vested with the fourth estate and it will tell upon what is behind it. The said fact is an abuse of the process of court, liable to be quashed. [Philip Mathew v. State of Kerala, 2020 SCC OnLine Ker 5105, decided on 13-11-2020]

Case BriefsForeign Courts

London High Court of Justice (Queen’s Bench): The instant high profile case of libel brought in by well known American actor Johnny Depp against The Sun newspaper, the High Court on appreciation of facts and evidences, decided to dismiss Mr Depp’s claim. Andrew Nicol, J., in his 129-page judgment, observed that, “The claimant has proved the necessary elements of his cause of action in libel; the Defendants have shown that what they published in the meaning which I have held the words to bear was substantially true”. The Court further held that, “It has not been necessary to consider the fairness of the article or the defendants’ ‘malice’ because those are immaterial to the statutory defence of truth”.

Facts and contentions

The 1st defendant is the publisher of The Sun newspaper and also the owner and publisher of the associated website The claim revolves around an article first published on the website on 27th April 2018 with the headline- ‘GONE POTTY: How Can J K Rowling be “genuinely happy” casting wife-beater Johnny Depp in the new Fantastic Beasts film?’. On 28th April 2018 the headline of the website article was changed to, ‘GONE POTTY: How Can J K Rowling be “genuinely happy” casting Johnny Depp in the new Fantastic Beasts film after assault claim?”. The contents of the article on the website however remained unchanged and it was published in the hard copy edition of The Sun.

The solicitors of Mr Depp (the claimant) argued that the natural and ordinary meaning attributed to each of the articles was that – “the claimant was guilty, on overwhelming evidence, of serious domestic violence against his then-wife (Amber Heard), causing significant injury and leading to her fearing for her life”. They further argued that the publication of the articles has caused serious harm to the actor’s personal and professional reputation. Since the article was published in the backdrop of “Me Too” Movement, as a result it is likely to finish the claimant’s career.

Per contra, the defendants relied on the ‘defence of truth’ as per S. 2 of Defamation Act, 2013. As per their pleadings- ‘throughout their relationship the Claimant was controlling and verbally and physically abusive towards Ms Heard, particularly when he was under the influence of alcohol and/or drugs.’ The defendants further presented the particulars of 14 incidents in supporting their defence.

What is “defence of truth”-

While deciding the matter, the Court shed some light on the statutory defence of truth as taken by the defendants.  The ‘defence of truth’ was a common law defence to a claim for libel to prove that the libel was ‘justified’. The common law defence has now found in a statutory form under Defamation Act, 2013. Section 2 (1) of the 2013 Act makes it clear that, it is for the defendant to prove that the libel was substantially true. The burden of proof therefore rests on the defendant.  As for the standard of proof, the starting point is that these are civil proceedings and in civil proceedings the standard of proof is the balance of probabilities.  The Court observed that the points upon which they must judge the defendant’s defence are – is it more probable than not that the article was substantially true in the meaning that it bore; is it more likely than not that the claimant did what the articles alleged?

Observations and conclusion

The Court at length perused the list of incidents presented by the defendants and the claimant’s reply to them. The Court observed that a libel claimant must, in brief, prove that “defamatory material has been published by the defendant of and concerning him and in a form that has a degree of permanence”. It was stated by the Judge that, “the overall purpose of the task which is to decide whether the Defendants have proved the substantial truth of their articles in the meanings which I have found them to bear”. The Court delved into the core of the issue i.e. the dispute between Mr Depp and Ms Heard and perused the details of incidents and ongoing simultaneous court cases in other countries. The Court also considered the evidences brought in by the defendants which included photos, audio recordings and Depp’s own text messages. The Court also noted the claimant’s admission regarding long-term problems with drugs and alcohol during the trial and the impact that these allegations had on Ms Heard’s career.

After examining in detail the evidences etc. the Judge stated that the great majority of alleged assaults of Ms Heard by Mr Depp have been proved to the civil standard. The Court also disagreed with the claimant’s portrayal of Ms Heard as a “gold- digger” stating that, “There were other elements to the divorce settlement as well, but her donation of the $ 7 million to charity is hardly the act one would expect of a gold-digger.” The Judge finally concluding the judgment held that he reached these conclusions having examined in detail the 14 incidents on which the defendants rely as well as the overarching considerations which the claimant submitted.[John Christopher Depp II v. News Group Newspapers Ltd., [2020] EWHC 2911 (QB), decided on 02-11-2020]

Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., allowed the injunction application filed by the TV Today Network finding they have established prima facie case in their favour.

Present suit was preferred by a media conglomerate which transmits and broadcasts news etc. through print as well as electronic media.

By the instant suit, the plaintiff sought a decree of a permanent and mandatory injunction against defendant 1 restraining him from making the systematic attack on plaintiff’s reputation by making false and baseless tweets.

Defendant 1 levelled allegations against the plaintiff and one of its main anchors of having taken a sum of Rs 8 crores to interview a personality presently in news. It was also alleged that at the time of the birth of the said anchor itself, nurse concerned made obnoxious remarks and that the said anchor is involved in making fake news. The said anchor was also compared to a person, who is facing extradition proceedings.

High Court found that the plaintiff made out a prima facie case in its favour.

Bench stated that till the next date of hearing, defendant 1 is restrained from directly or indirectly publishing, re-publishing, sending or posting any tweet or information either in the electronic form or through the internet, email, social media or any print or communication media whatsoever, the statement or post which is derogatory/defamatory in its contents to the plaintiff or its top management or its anchors or its other office-bearers.

Defendant 2 has been directed to suspend/block the Twitter handles of defendant 1 and to file the basic subscription information of the account holder of the Twitter accounts impugned i.e. ‘@theanuragkts’ and ‘@theanuragoffice’ in the Court and supply a copy thereof to the learned counsel for the plaintiff as a password-protected document before the next date of hearing. [T.V. Today Network Ltd. v. Anurag Srivastava, 2020 SCC OnLine Del 1354, decided on 24-09-2020]

Case BriefsHigh Courts

Madras High Court: R. Subramanian, J., refused to allow the application filed by Sathiyam Media praying for rejection of plaint filed by the Isha Foundation claiming damages for defamation from the applicant.

Cause of Action

The present application was filed to seek rejection of the plaint due to non-disclosure of the cause of action.

The above-stated suit is pertaining to damages for defamation and for permanent injunction restraining the defendant from publishing or telecasting any material or news item which either directly or indirectly defames the plaintiff foundation.

Plaintiff’s case

The defendant which is a television channel airing news items has been indulging in persistently broadcasting various programs that tend to lower the image of the plaintiff foundation and the founder of the plaintiff foundation.

Disparaging the reputation

Compere of the programmes can be seen to put leading questions with a view to extracting a response which disparages the reputation of the plaintiff foundation and its founder.

Motive: To increase Television Rating Points (TRPs)

Further, the plaintiff added that, the only concern of the defendant was to increase the television rating points and to sensationalize by publishing the response of people who had certain grievances against the plaintiff foundation and its founder.

Defendant sought the rejection of plaint on the ground that few issues which had been raised in the various broadcasts by the defendant were subject matter of certain writ petitions pending before this Court and therefore the suit will have to await the disposal of the petitions.

Counsel for the applicant/defendant P.T. Perumal and Advocate Rajendra Kumar for the respondent/plaintiff.



Applicant’s counsel invited the Court’s attention to the decision of Gujarat High Court in Narottamdas L Shah v. Patel Maganbhai Revabhai, 1984 Cri. Law Journal 1790 to contend that the suit having been filed by the foundation it should prove that there was a loss caused to the reputation of the foundation as such and reputation being what neighbours and others think about another person unless it is proved that the reputation of the plaintiff in the eyes of such other person or persons was lowered it cannot be said that there was defamation.

Presence or absence of evidence is essentially a matter to be decided in the suit and not in an application under Order 7 Rule 11 CPC.

Bench stated that the absence of evidence regarding the plaintiff’s damage to the reputation in the eyes of the third person could not form a ground for rejection of plaint at this stage or even at a later stage.

Other Proceedings Pending

In Court’s opinion, if the defendant in an action for defamation raises the defence of truth it is for him to establish it and succeed on the basis of evidence.

Further, it was added that he cannot rely upon or seek the aid of some dispute which is pending before a court of law to prove his case.

“Rejection of a plaint is an extraordinary remedy and the same cannot be invoked on grounds other than the ones specified in the rule itself.”

If there are hundred TV channels and a hundred newspapers and all of them publish defamatory material against an individual or an organisation, the organisation or the individual cannot be forced to file suits for damages against all of them. It is left to the discretion of the plaintiff to decide as to who is to be sued depending on the damage caused.

In view of the above, application was dismissed. [Sathiyam Media Vision (P) Ltd. v. Isha Foundation, 2019 SCC OnLine Mad 33067, decided on 06-08-2019]

Case BriefsHigh Courts

Karnataka High Court: H.B. Prabhakara Sastry, J., while allowing the criminal revision in part, remarked that, if the accused seeks to take defense of truth under Section 499 Penal Code, 1860, it is upon him to prove that the statements made are facts.

 Brief Facts

The present criminal revision is instituted under Section 397 read with Section 401 Criminal Procedure Code, praying to set aside the judgment and sentence confirmed in criminal appeal no. 815 of 2010 by Additional Sessions Judge and also to set aside the judgment of conviction and sentence, passed by the Additional Chief Metropolitan Magistrate in CC No. 11445 of 2006, thereby acquitting the petitioner against charges of defamation under Section 500 IPC. The series of events leading to the present petition has been summarized hereunder:

  1. That the respondent-husband had instituted a case for restitution of conjugal rights against the petitioner which was decreed in his favour.
  2. That in the suit for conjugal rights, the wife made serious allegations against the husband questioning his character, repute, conduct and behaviour against which the husband filed a criminal case (CC No. 11445 of 2006), alleging the offences punishable under Section 500, 191, 193 IPC, 1860.
  3. That the said criminal case, after trial, ended in the conviction of the accused wife for the offence punishable under Section 500 IPC and was further directed to undergo a simple imprisonment for a period of one month along with payment of fine amounting to Rs 5000.
  4. Challenging the sentence and conviction, the wife preferred a Criminal Appeal in the Court of Additional Sessions Judge, which was dismissed by an order dated, 15-02-2012, confirming the decision of the Trial Court.
  5. That against the said confirmation and the judgment, the present criminal revision petition no. 152 of 2014 has been preferred by the wife and seeking enhancement of sentence, ordered by the Trial Court, a criminal revision petition no. 1358 of 2010 has been sought by the complainant (husband).

Both these Criminal Revision Petitions have been treated as connected matters and were taken up together for hearing and disposal.


  1. Whether the complainant has proved beyond reasonable doubt that the accused has committed an offence punishable under Section 500 IPC?
  2. Whether the sentence, as passed by the trial court, deserves to be enhanced?
  3. Whether the judgments and order on sentence impugned under these revision petitions suffer with any illegality, impropriety, warranting interference at the hands of the Court? 


The Court while reproducing Section 500 IPC, said, “In order to be defamatory, a publication must tend to lower the complainant in the opinion of men whose standard of opinion, the Court can properly recognize or tend to induce them to entertain an ill-opinion of him. However, the complainant need not show a tendency of imputation to prejudice him in the eye of every one in the community or all of his associates, but it is sufficient to establish that the publication tends to lower him in the estimation of a substantial, respectable group, even though they are totally different community or of the complainant’s associates.”

The Court further cited opinions of several Courts with respect to whether pleadings can constitute publication to determine the offence of Defamation, under Section 500 IPC.

  1. Chiranshree Das v. Amitabh Das, reported in LAWS(KAR)-2018-8-304; “Making a defamatory matter known after it has been written to some person other than the person for whom it is written is a ‘publication’ in its legal sense. A defamatory matter must, therefore, be communicated to some person other than the person concerning whom it is written.”
  2. Madhuri Mukund v. Mukund Martand, 1990 SCC OnLine Bom 410, “Bombay High Court observed that the imputations made in a proceeding which is filed in a Court is clearly a publication. It further observed that even a publication to an authority over the person against whom imputations are made must be held to be sufficient publication falling within the purview of Section 499 IPC.”
  3. K. Prabhakaran v. Gangadharan, 2006 SCC OnLine Ker 302, “Kerala High Court, in a matter where it is alleged that defamatory statements against complainant were made in a written statement filed before the Court held that, once a statement has been filed in the Court of law, that statement can be taken as published. If such statement amounts to per se defamatory, then it is the duty of the accused to establish that, they are justified in making such a statement under any of the exceptions to Section 499 IPC.”
  4. Sanjay Mishra v. NCT of Delhi, 2012 SCCOnLine Del 1779, “For criminal purposes ‘publication’ has a wider meaning than it has in Civil Law, since it includes a communication to the person defamed alone. The prosecution for defamation in criminal cases can be brought although the only publication is to the person defamed as it is very likely to provoke a breach between the persons involved.”
  5. Thangavelu Chettiar v. Ponnamal, 1965 SCC OnLine Mad 248, “Madras High Court was pleased to observe that, there can be no doubt that the defamation contained in the plaint was published by the plaint being filed in the Court.”

The Court further, examined the statements made by the wife before the trial court and said, “The contents of the statements of the accused, per se, reveal that the allegations are defamatory in nature unless they are shown to be falling under any of the exceptions within Section 499 IPC.” 


Allowing the criminal revision in part, the Court upheld the conviction on the ground of disclosing the allegations in the plaint to her relatives and friend. The sentence of simple imprisonment for the period of one month was set aside, on considerate terms and the fine amount was increased from Rs 5000 to Rs 15000.[Sushma Rani v. Nagaraja Rao, Criminal Revision Petition No. 152 of 2014, decided on 1-10-2020]

Case BriefsHigh Courts

Madras High Court: G.K. Ilathiraiyan, J., observed that, Section 500 of the Penal Code, 1860 cannot be attracted wherein an advocate acts professionally on the instructions of his or her client.

The reason for present criminal original petitions was to quash the proceedings of Metropolitan Magistrate having been taken cognizance for the offences under Sections 500, 192 read with 34 of the Penal Code, 1860.

Five accused persons are there in the present petition, in which the petitioners are arrayed as A1 to A5. The second accused is an Advocate who appeared on behalf of other accused persons.

A1 to A5 are members of the Committee of Creditors. Respondent was initially appointed as the Insolvency Resolution Professional of Oceanic Edibles International Limited which is undergoing Corporate Insolvency Resolution Process by the National Company Law Tribunal, Chennai.

In light of several allegations against the respondent, accused persons filed an application seeking appointment of another Resolution Professional, after which the respondent was removed and another person was appointed as Resolution Professional.

Respondent stated that petitioners made statements which were defamatory in nature resulting in defaming his reputation.

Statements like:

a) Resolution Professional “is not up to the expected standard” (para 21)

b) “He is only keen on entering into the brawl with everyone, thus undermining the judicial process, if he is allowed to continue the interest of COC will be jeopardized”(para 21)

c) COC had already lost precious 50 days from the date of his appointment, no effective business has been conducted to evolve the resolution process in a forward-moving directions (para 22)

d) Resolution professional has misrepresented to media violating the code of conduct (para 23)

e) seeking amendments in IBC is beyond the Rps scope(para 18)

f) resolution professional again sent mails to the top executives wherein he had made statements to the top executives in a very unethical manner and uncalled for (para 19)

Petitioner Counsel submitted that the petitioners were members of COC vested with statutory powers under the IBC to replace the Resolution Professional in the manner provided under IBC. Accordingly, they instructed their counsel namely the second accused to filed an application before the NCLT.

In view of the above, Court stated that it would not attract offence under Section 499 IPC.

Section 499 IPC:

Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Bench stated that the statements of the petitioners do not attract Section 499 of IPC. A2 was an advocate for other accused persons and filed an application on the instruction of COC before the NCLT to remove the respondent.

Petitioners Counsel relied on the decision in Ayeasha Bi v. Peerkhan Sahib,1953 SCC OnLine Mad 3, wherein it was held that,

“…a lawyer is an advocate, one who speaks for another.Naturally beyond what his client tells him the lawyer has no opportunity to test the truth or falsity of the story put forward by the client.”

Kerala High Court in K. Daniel v. T. Hymavathy Amma, 1985 SCC OnLine Ker 110, held that the English Courts have reiterated the view during last four hundred years that the statements made by Judges, Juries, counsel, parties and witnesses in the course of judicial proceedings are not actionable in civil law for defamation as the occasion is absolutely privileged. 

Supreme Court along with various High Courts repeatedly held that,

an advocate who acted professionally as per the instruction of his or her client cannot be made criminally liable for offence of defamation under Section 500 unless contrary is alleged and established.

Hence, the Court allowed the criminal original petitions and the entire proceedings on the file of the Metropolitan Magistrate Court, Chennai. [M.L. Ganesh v. CA V. Venkata Siva Kumar, 2020 SCC OnLine Mad 2732, decided on 30-09-2020]