Mohammad Amin Bhat vs Mohammad Sartaj Madni
2021 Latest Caselaw 1287 j&K/2

                          IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                             AT SRINAGAR


                                                                       Reserved on:01.10.2021
                                                                     Pronounced on:12.10.2021


                                               CRMC No.379/2018


                        MOHAMMAD AMIN BHAT                               ...PETITIONER(S)

                        Through: - Mr. M. Saleem Parray, Advocate.

                        Vs.

                        MOHAMMAD SARTAJ MADNI                         ...RESPONDENT(S)

                        Through: - Mr. Jahangir Iqbal Ganai, Sr. Adv. with
                                   M/S: Sheikh Umar & Murfad, Advocates.


                        CORAM:     HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                                     JUDGMENT

1) Petitioner has challenged the complaint filed by

respondent against him for offence under Section 500 RPC

before the Court of Chief Judicial Magistrate, Anantnag, as

also the order dated 20.08.2018, passed by the learned

Magistrate, whereby, after taking cognizance of the offence,

process has been issued against the petitioner.

2) It emerges from the record that the respondent has

filed a complaint before the Court of Chief Judicial

Magistrate, Anantnag, against the petitioner herein who, at

the relevant time, was a member of the Jammu and

MOHAMMAD ALTAF BHAT Kashmir Legislative Assembly from Devsar constituency. In 2021.10.12 16:47 I attest to the accuracy and integrity of this document

the complaint it is alleged that the complainant has been a

two-time member of the State Legislative Assembly and he

had also held the post of Deputy Speaker of the State

Legislative Assembly. It is further alleged that on

14.07.2018, the petitioner/accused addressed two public

meetings, one at Devsar and another at Kund, wherein he

made defamatory and baseless allegations against the

respondent/complainant. The translated version of the

alleged defamatory allegations attributed to the

petitioner/accused have been reproduced in the complaint.

3) The statements alleged to have been made by the

petitioner during the public meeting at Devsar, are that

respondent/complainant has accumulated property worth

Rs.10,000/ crores by looting poor people; he got loan

amount of Rs.40.00 lakhs waived off; he ensured allotment

of project worth Rs.200/ crores to his son at Anantnag

without undertaking any tendering process for

construction of Medical College at Larkipora; received bribe

of Rs.10.00 lakhs for each appointment in J&K Bank;

received an amount of rupees one crore from every officer.

4) Similar statements are alleged to have been made by

the petitioner during public meeting at Kund. In the said

public meeting the petitioner is alleged to have stated that

MOHAMMAD ALTAF BHAT the respondent/complainant has accumulated assets at 2021.10.12 16:47 I attest to the accuracy and integrity of this document

Chandigarh, Delhi, Jammu, Pahalgam and Bihar. The

petitioner has further alleged to have affirmed the

correctness of the imputations made by him against the

respondent by throwing a challenge to him to file a case in

this regard.

5) In the complaint it is averred that the complainant/

respondent received the recorded statements of aforesaid

allegations through social media as the same had gone

viral. It is further averred that the allegations made by the

accused have, besides tarnishing image of the complainant,

also impacted the trust and faith reposed in him by the

public which is likely to affect his political career.

6) After presentation of the complaint, the learned

Magistrate recorded the preliminary statement of the

complainant and his witness. On the basis of the

averments made in the complaint together with the

preliminary statements of the complainant and his witness,

the learned Magistrate took cognizance of offence against

the petitioner herein and issued process against him in

terms of order dated 20.08.2018.

7) The petitioner/accused has challenged the complaint

as well as the order of taking cognizance and issuance of

process against him on the grounds that the petitioner at MOHAMMAD ALTAF BHAT 2021.10.12 16:47 I attest to the accuracy and integrity of this document

the relevant time was a member of the Legislative Assembly,

as such, no cognizance of offence could have been taken

against him without sanction for prosecution from the

competent authority; that the alleged defamatory

statements were made by the petitioner at Devsar and Kund

and both these places are located in District Kulgam, thus,

Chief Judicial Magistrate, Anantnag, did not have territorial

jurisdiction to entertain the complaint; that the preliminary

statement of the complainant and his witness have not been

recorded on oath and, as such, a grave illegality has been

committed by the learned trial court; that the respondent

has not reproduced whole speech of the petitioner and if he

would have done so, no offence would have been disclosed

against the petitioner; that in the capacity of Member

Legislative Assembly, it was the duty of the petitioner to

bring to the notice of the public the wrong doings of

respondent/complainant and thus no offence can be stated

to have been committed by the petitioner and that

accusations that are stated to have been made by the

petitioner were made by him in good faith and, as such,

ninth exception to Section 499 of RPC would come into play

taking out act of the petitioner from the purview of the

definition of defamation.

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8) I have heard learned counsel for the parties and

perused the material on record including the record of the

trial Magistrate.

9) Before analyzing the facts emanating from the record

of the trial court, it would be apt to notice the legal position

as regards the scope of powers of the High Court under

Section 561-A of J&K Cr. P. C which is in pari materia with

Section 482 of the Code of 1973, to interfere with the

proceedings/complaint filed before a Magistrate.

10) The power under Section 561-A of J&K Cr. P. C can

be exercised by the High Court to prevent the abuse of

process of the Court and otherwise to secure the ends of

justice. The authority of the Court exists for advancement

of justice and if any attempt is made to abuse the said

authority, the Court has the power to prevent that abuse.

These inherent powers of the High Court are wide in their

scope. Wider the power more the responsibility upon the

authority vested with such power to exercise it with

circumspection. These powers are generally exercised to

secure the ends of justice.

11) The Supreme Court in the celebrated case of State of

Haryana and others v. Bhajan Lal and others, 1992 Supp

(1) SCC 335, has dealt with the scope of power of High

MOHAMMAD ALTAF BHAT Court under Section 482 of Cr. P. C, 1973 in an elaborate 2021.10.12 16:47 I attest to the accuracy and integrity of this document

manner. Para 102 and 103 of the said judgment are

relevant to the context and the same are reproduced as

under:

"102. in the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or ri9gid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

1) wherein the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order or a Magistrate within the purview of Section 155(2) of the Code.

3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code

5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceedings against the accused.

6) Where there is an express legal bar engrafted in any MOHAMMAD ALTAF BHAT of the provision of the Code or the concerned Act 2021.10.12 16:47 I attest to the accuracy and integrity of this document

(under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or the concerned Act, providing efficacious redress of the grievance of the aggrieved party.

7) Where a criminal proceeding is manifestly attended with malalfide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

12) From the foregoing analysis of law on the subject, it is

clear that power to quash the criminal proceedings can be

resorted to by the High Court in the cases illustrated in the

afore-quoted judgment or in cases of like the nature. The

inherent powers cannot be, however, exercised to stifle or

impinge upon the proceedings.

13) In the light of aforesaid legal position, let us now

proceed to deal with the contentions raised by the petitioner

during the course of the arguments so as to ascertain

whether the case of petitioner falls in any of the categories

illustrated by the Supreme Court in Bhajan Lal's case

(supra).

14) One of the grounds urged by the petitioner is that

there is a legal bar engrafted in Section 197 of Cr. P. C to MOHAMMAD ALTAF BHAT 2021.10.12 16:47 I attest to the accuracy and integrity of this document

taking cognizance of offence against the petitioner without

previous sanction of the Competent Authority as the

petitioner being an MLA was a public servant at the relevant

time. To support his contention, learned counsel for the

petitioner has relied upon the judgment of this Court in

Jagjiwan Lal v. Krishen Chand, 1987 Cri. L. J. 1149.

15) In order to determine the merits of the above

contention, we need to first notice the definition of "public

servant" as given in Section 21 of the RPC. It reads as

under:

"21. Public Servant. -- The words "public servant" denote a person falling under any of the descriptions hereinafter following namely: --

First.--Every Civil servant of the State; Second.--Every Commissioned officer in the military, naval or air force of India;

Third.--Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; Fourth.--Every officer of a Court of Justice (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court; and every person specially authorized by a Court of Justice to perform any of such duties;

Fifth.--Every juryman, assessor or member of a panchayat assisting a Court of Justice or public servant Sixth.--Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;

Seventh.--Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

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Eighth.--Every officer of Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience; Ninth.--Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government or to make any survey, assessment or contract on behalf of the Government or to execute any revenue process, or to investigate or to report on any matter affecting the pecuniary interests of the Government or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government, and every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty; Tenth.--Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

Eleventh.--Every servant under the Government of India who is posted, and when he is performing his legitimate duties, within the State;

Twelfth.--Every servant of the Department of Devasthan; Thirteenth.--Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;

Fourteenth.--Every officer or servant employed by a Municipal Committee, Town Area Committee, Notified Area Committee, Panchayat, Cooperative Society or Co- operative Bank whether for the whole or part of his time, and every member of such committee, society or bank; Fifteenth.--Every officer or servant, and every member (by whatever name called) of a corporation engaged in trade or industry or of any other autonomous body which is established by an Act of the State Legislature or of a Government company as defined in any law for the time being in force in the State;

Sixteenth.--Every officer or servant including medical or para-medical staff of the Sher-i-Kashmir institute of Medical Sciences, Srinagar.

Explanation 1: -- Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.

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Explanation 2: -- Wherever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant whatever legal defect there may be in his right to hold that situation.

Explanation 3: -- The word "election" denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election.

Explanation 4: -- The expression 'Corporation engaged in any trade or industry includes a banking, insurance or financial corporation."

16) In Jagjiwan Lal (supra), the High Court, while

interpreting ninth clause of Section 21 of RPC, as quoted

above, came to the conclusion that a Cabinet Minister is a

public servant within the meaning of said clause. The Court

came to the aforesaid conclusion on the basis of the

following facts:

1. That a Minister is appointed or dismissed by the Government and is, therefore, subordinate to him whatever be the nature and status of his constitutional functions.

2. That a Chief Minister or a Minister gets salary for the public work done or the public duty performed by him.

3. That the said salary is paid to the Chief Minister or the Minister from the Government funds.

17) The aforesaid conclusion was drawn by this Court by

relying upon the ratio laid down by the Supreme Court in

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the case of M. Karunanidhi v. Union of India, AIR 1979

SC 898.

18) The ratio laid down in M. Karunanidhi's case (supra)

was examined and considered by a Constitution Bench of

the Supreme Court in the case of R. S. Nayak v. A. R.

Antulay, AIR 1984 SC 684 in the light of interpretation of

the expression "Government" appearing in Clause (12)(a) of

Section 21 of IPC, which is in pari materia with later part of

Clause (9) of Section 21 RPC. It would be profitable to quote

the following observations of the Supreme Court made in R.

S. Nayak v. A. R. Antulay to elucidate the issue:

"It would appear at glance that no argument was advanced and none has been examined by the Constitution Bench bearing on the interpretation of the expression 'Government' in cl. (12)(a). It was assumed that salary and allowances paid to the Chief Minister are by Government. What does expression 'Government' in the clause connote was not even examined. And it is on the aforementioned finding that the Chief Minister was held to be a public servant but that does not conclude the matter.

This is not the end of the matter. The question may be posed thus: 'Even if M.L.A. receives salary and allowances under the relevant statute, is he in the pay of the Government'? In other words, what does the expression 'Government' connote?

There is a short and a long answer to the problem.

Section 17 IPC provides that 'the word Government' denotes the Central Government or the Government of a State'. Section 7 IPC provides that 'every expression which is explained in any part of the Code, is used in every part of the Code in conformity with the explanation'. Let it be noted that unlike the modern statute Section 7 does not provide 'unless the MOHAMMAD ALTAF BHAT context otherwise indicate' a phrase that prefaces the 2021.10.12 16:47 I attest to the accuracy and integrity of this document

dictionary clauses of a modern statute. Therefore, the expression 'Government' in Section 21 (12)(a) must either mean the Central Government or the Government of a State. Substituting the explanation, the relevant portion of Section 21 (12) (a) would read thus: 'Every person in the pay of the Central Government or the Government of a State or remunerated by fees or commission for the performance of any public duty by the Central Government or the Government of a State'. At any rate, the Central Government is out of consideration. Therefore, the question boils down to this: whether M.L.A. is in the pay of the Government of a State or is remunerated by fees for the performance of any public duty by the Government of a State ?

19) The question whether MLA is in the pay of the

Government or is remunerated by fees for the performance

of public duty by the Government of the State which is

mentioned in ninth clause of Section 21 of RPC, which is in

pari materia with Clause (12)(a) of Section 21 of IPC, has

been addressed by the Supreme Court in R. S. Nayak v. A.

R. Antulay (supra) in paras 57 and 58 of the judgment

which are quoted below:

"57.There thus is a broad division of functions such as executive, legislative and judicial in our Constitution. The Legislature lays down the broad policy and has the power of purse. The executive executes the policy and spends from the Consolidated Fund of the State what Legislature has sanctioned. The Legislative Assembly enacted the Act enabling to pay to its members salary and allowances. And the members vote the grant and pay themselves. In this background even if there is an officer to disburse this payment or that a pay bill has to be drawn up are not such factors being decisive of the matter. That is merely a mode of payment, but the M.L.As. by a vote retained the fund earmarked for purposes of disbursal for pay and allowances payable to them under the relevant statute. Therefore, even though M.L.A.

MOHAMMAD ALTAF BHAT receives pay and allowances, he is not in the pay of 2021.10.12 16:47 I attest to the accuracy and integrity of this document

the State Government because Legislature of a State cannot be comprehended in the expression 'State Government'.

58.This becomes further clear from the provision contained in Art. 12 of the Constitution which provides that 'for purposes of Part III, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India'. The expression 'Government and Legislature', two separate entities, are sought to be included in the expression 'State' which would mean that otherwise they are distinct and separate entities. This conclusion is further reinforced by the fact that the executive sets up its own secretariat, while Art. 187 provides for a secretarial staff of the Legislature under the control of the Speaker, whose terms and conditions of the service will be determined by the Legislature and not by the executive. When all these aspects are pieced together, the expression 'Government' in Sec. 21 (12)(a) clearly denotes the executive and not the Legislature. M.L.A. is certainly not in the pay of the executive. Therefore, the conclusion is inescapable that even though M.L.A. receives pay and allowances, he cannot be said to be in the pay of the Government i.e. the executive. This conclusion would govern also the third part of cl..(12)(a) i.e. 'remunerated by fees for performance of any public duty by the Government'. In other words, M.L.A. is not remunerated by fees paid by the Government i.e. the executive."

20) On the basis of aforesaid discussion, the Supreme

Court came to the conclusion that an MLA, because he is

not remunerated by fee for performance for any public duty

by the executive Government, would not come within the

expression "public servant" within the meaning of the

expression in Clause 12(a) of Section 21 of IPC. The Court

concluded that after meticulously examining the MOHAMMAD ALTAF BHAT 2021.10.12 16:47 I attest to the accuracy and integrity of this document

submission from diverse angles, it appears that M.L.A. is

not a public servant within the meaning of the expression

in clause (12)(a), clause (3) and clause (7) of Section 21 IPC.

21) The ratio laid down by the Constitution Bench of the

Supreme Court in R. S. Nayak v. A. R. Antulay seems to

have escaped the notice of this Court while deciding

Jagjiwan Lal's case (supra). In any event, in the instant

case, we are dealing with the status of an M. L. A and not

the status of the Minister. In Jagjiwan Lal's case the Court

considered the status of a Minister whereas in A. R.

Antulay's case the Supreme Court examined the status of

an M. L. A. Thus, the ratio laid down by the Supreme Court

in A. R. Antulay's case (supra) squarely applies to the

instant case.

22) From the foregoing discussion, it is clear that an MLA

is not a public servant within the meaning of Section 21 of

RPC and, as such, there was no requirement for prior

sanction for prosecution of the petitioner as the provisions

of Section 197 of J&K Cr. P. C are not attracted to the case.

23) The next ground that has been urged by learned

counsel for the petitioner is that before taking cognizance

of the offence, learned Magistrate did not record statements

of the complainant and his witness on oath. According to MOHAMMAD ALTAF BHAT 2021.10.12 16:47 I attest to the accuracy and integrity of this document

the learned counsel, the expression which has been used

by the learned Magistrate while recording statements of the

complainant and his witness is "Ba Karareh Saleh", an

expression in Urdu which according to the learned counsel

means "solemn affirmation" and not "on oath".

24) Urdu word "Iqrari Saleh" as per English-Urdu

Dictionary by Mr. Nasir Qadri, means "oath". Urdu word

"halaf" also means "oath". So, the terms "Iqrari Saleh" and

"halaf" appear to be two interchangeable Urdu expressions

for their English version "oath". Even if we assume that

word "Iqrari Saleh" means "solemn affirmation" and not

"oath", still then it does not help the case of the petitioner

because as per Section 51 of RPC word "Oath" includes a

solemn affirmation. Section 51 RPC reads as under:

"51. Oath.--The word "oath" includes a solemn affirmation substituted by law for an oath, and any declaration required or authorized by law to be made before a public servant or to be used for the purpose of proof, whether in a Court of Justice or not."

25) From a reading of aforesaid provision, it is clear that

a declaration authorized by law to be made before a public

servant falls within the definition of "oath". Therefore, even

if the contention of the petitioner that complainant and his

witness had only made solemn declaration and they were

not administered oath by the learned Magistrate at the time

of recording their statements, it cannot be stated that the MOHAMMAD ALTAF BHAT 2021.10.12 16:47 I attest to the accuracy and integrity of this document

learned Magistrate has not complied with the requirements

of Section 200 of Cr. P. C which postulates recording of

statement of the complainant and his witnesses on oath.

Section 5 of the Oaths Act, 1969, which is now applicable

to the Union Territory of Jammu and Kashmir, also

provides that a witness instead of making an oath, may

make an affirmation.

26) Apart from the above, the failure to record statements

of the complainant and his witness on oath while taking

cognizance and issuing process against an accused is

merely an irregularity and the same would not vitiate the

proceedings. I am supported in my aforesaid view by the

judgment of this Court in Rahul Kanwal v. P. K. Tikoo

(Brig.) & another, 2013 (1) JKJ 380[HC]. Thus, viewed

from any angle, the ground urged by the petitioner appears

to be without any merit.

27) That takes us to the question whether contents of the

complaint and the material supporting it constitute the

offence of defamation against the petitioner. Defamation

has been defined in Section 499 RPC (which is applicable

to the instant case) whereas Section 500 of the said Code

provides for its punishment. Section 499 RPC reads as

under:

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"499. 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 excepted, 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. First Exception - Imputation of truth which public good requires to be made or published - It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.

Second Exception - Public conduct of public servants - It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.

Third Exception - Conduct of any person touching any public question - It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

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Fourth Exception - Publication of reports of proceedings of Courts - It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.

Explanation - A Justice of the Peace or other officer holding an enquiry in open Court preliminary to a trial in a Court of Justice, is a Court within the meaning of the above section.

Fifth Exception - Merits of case decided in Court or conduct of witnesses and others concerned - It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. Sixth Exception - Merits of public performance - It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.

Explanation - A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.

Seventh Exception - Censure passed in good faith by person having lawful authority over another - It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.

Eight Exception - Accusation preferred in good faith to authorized person - It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

Ninth Exception - Imputation made in good faith by person for protection of his or other interest - It is not defamation to make an imputation on the character of another, provided that the imputation be made in good MOHAMMAD ALTAF BHAT 2021.10.12 16:47 I attest to the accuracy and integrity of this document

faith for the projection of the interest of the person making it, or of any other person, or for the public good. Tenth Exception - Caution intended for good of person to whom conveyed or for public good - It is not defamation to convey a caution, in good faith, to one person against another; provided that such caution be intended of the good of the person to whom it is conveyed, or of some person in whom that person is interested or for the public good."

28) From a perusal of the afore-quoted provision, it is

clear that an offence of defamation is made out whenever a

person by words spoken etc. 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. The offence,

however, would not get attracted when a case falls under

any of the ten exceptions quoted above.

29) The Supreme Court in the case of Subramanian

Swamy v. Union of India, (2016) 7 SCC 221, while

considering the constitutional validity of Section 499 IPC,

had an occasion to discuss the anatomy of aforesaid

provision and its field of operation. Para 168 of the

judgment is relevant to the context and the same are

reproduced as under:

"168. For the aforesaid purpose, it is imperative to analyse in detail what constitutes the offence of "defamation" as provided under Section 499 of IPC. To constitute the offence, there has to be imputation and it must have been made in the manner as provided in the provision with the intention of causing harm or having MOHAMMAD ALTAF BHAT 2021.10.12 16:47 I attest to the accuracy and integrity of this document

reason to believe that such imputation will harm the reputation of the person about whom it is made. Causing harm to the reputation of a person is the basis on which the offence is founded and mens rea is a condition precedent to constitute the said offence. The complainant has to show that the accused had intended or known or had reason to believe that the imputation made by him would harm the reputation of the complainant. The criminal offence emphasizes on the intention or harm. Section 44 of IPC defines "injury". It denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. Thus, the word "injury" encapsulates harm caused to the reputation of any person. It also takes into account the harm caused to a person's body and mind. Section 499 provides for harm caused to the reputation of a person, that is, the complainant."

30) From a perusal of the afore-quoted observations of the

Supreme Court, it is clear that for constituting an offence

of defamation, it must be shown that the accused had

intention or had reason to believe that such imputation

would harm reputation of the complainant. So, mens rea is

a condition precedent to constitute the offence. There has

to be an intention or knowledge on the part of the accused

to cause harm to the reputation of the complainant.

Without intention or knowledge, the offence would not be

constituted.

31) In the instant case, the petitioner is alleged to have

made certain statements in two public meetings alleging

that the respondent has accumulated massive assets by

sucking blood of poor people, managed loan waiver in his

favour, obtained illegal gratification from officers and people

for arranging jobs, so on and so forth. It is not the case of MOHAMMAD ALTAF BHAT 2021.10.12 16:47 I attest to the accuracy and integrity of this document

the petitioner that he made these statements on the basis

of any document or information which was in the public

domain. All these imputations and allegations against the

respondent/complainant have originated from petitioner

only. The statements of the petitioner are ex-facie libelous

and defamatory in nature. Petitioner does not even claim

that these allegations and statements are true. The

question whether petitioner has made these allegations

against the respondent in good faith is a question of fact

and the same can be determined only during the trial of the

complaint. The contention of the petitioner that his

statements fall within exception ninth of Section 499 RPC

can also be determined during the trial of the case as it is a

settled law that the burden of proving that a case falls

within the purview of the exceptions lies upon the accused

and not upon the complainant. (Refer to Subramanian

Swamy v. Union of India, (2016) 7 SCC 221). So, it cannot

be stated that the complaint and the material annexed

thereto does not make out a case of defamation against the

petitioner.

32) It has also been contended by learned counsel for the

petitioner that the alleged defamatory statements were

made by the petitioner outside the local limits of

jurisdiction of Chief Judicial Magistrate, Anantnag, as both MOHAMMAD ALTAF BHAT 2021.10.12 16:47 I attest to the accuracy and integrity of this document

the places where the public meetings were held are located

within the territorial jurisdiction of District Kulgam.

33) A perusal of contents of para (6) of the complaint

would show that the complainant has claimed that these

defamatory statements were received by him through social

media. The complainant, as per title of the complaint,

resides at Housing Colony, Khannabal Anantnag. It is also

averred in the complaint that these defamatory statements

went viral.

34) Section 179 of the Jammu and Kashmir Code of

Criminal Procedure, which is applicable to the instant case,

provides that when a person is accused of commission of

any offence, such offence may be inquired into or tried by a

Court within the local limits of whose jurisdiction any such

thing has been done or any such consequence has ensued.

Thus, even if the defamatory statements were made by the

petitioner within local limits of territorial jurisdiction of

District Kulgam, the fact that these statements went viral

would give jurisdiction to all the Courts within whose local

limits these statements were heard by the public. Making

and publication of imputations which are defamatory in

nature is an essential ingredient of offence of defamation.

Therefore, consequences of defamatory statement ensue at

MOHAMMAD ALTAF BHAT all those places where these statements are published or 2021.10.12 16:47 I attest to the accuracy and integrity of this document

disseminated. Thus, the mere fact that the petitioner had

made the statements outside the local limits of jurisdiction

of Chief Judicial Magistrate, Anantnag, does not bar the

jurisdiction of the said Magistrate when these statements

are alleged to have reached the public in Anantnag as well.

The contention of learned counsel for the petitioner in this

regard is also without any merit.

35) It has also been contended that the petitioner has, in

his capacity as an M. L.A, made the alleged statements to

the electorate of his Constituency so as to make them aware

about the acts and omissions of the complainant who is also

a public figure. Thus, according to the learned counsel for

the petitioner, no offence is made out against the petitioner.

36) Merely because the petitioner was an M. L. A, does not

give him a licence to make unsubstantiated and

unconfirmed libelous statements against his political rival.

The fact that the petitioner challenged the complainant to

sue him, shows that he has levelled these allegations

knowing well that these allegations are going to tarnish the

reputation of the complainant. While it is duty of an elected

representative to keep his electorate informed about the

official conduct of public figures but such duty cannot

extend to the extent of making reckless defamatory

MOHAMMAD ALTAF BHAT allegations against political rivals. The statements alleged 2021.10.12 16:47 I attest to the accuracy and integrity of this document

to have been made by the petitioner, prima facie, do not fall

within the purview of the expression "public good" and

"good faith" as appearing in the exceptions to Section 499

of RPC. The contention of the petitioner, therefore, deserves

to be rejected.

37) Lastly, it has been contended by learned counsel for

the petitioner that whole of the speech of the petitioner has

not been annexed by the respondent with his complaint and

had he done so, no offence of defamation would have been

made out against him.

38) The question whether whole of the speech of the

petitioner/accused was made part of the complaint can be

determined only during trial of the case and the question

whether after examining the whole of the speech, no offence

would be made out against the petitioner can also be

determined only during trial of the case and not in these

proceedings. The contention of the petitioner in this regard,

therefore, deserves to be rejected.

39) For all what has been discussed hereinbefore, it is

clear that the averments made in the complaint and the

material in support thereof clearly disclose commission of

offence under Section 500 RPC against the petitioner. The

learned Magistrate has, after applying his mind to the MOHAMMAD ALTAF BHAT 2021.10.12 16:47 I attest to the accuracy and integrity of this document

complaint as well as the preliminary statement of the

complainant and his witness, recorded satisfaction that the

offence under Section 500 RPC is made out against the

petitioner/accused, whereafter process has been issued

against him. Therefore, no fault can be found with the

impugned order dated 20.08.2018 whereby process has

been issued against the petitioner.

40) It is, thus, clear that the instant case does not fall

within the category of any of the illustrations given by the

Supreme Court in Bhajan Lal's case (supra). Therefore, it

is not open to this Court to exercise its jurisdiction under

Section 561-A of J&K Cr. P. C to quash the complaint and

the proceedings emanating there from.

41) For the forging reasons, the petition is found to be

without any merit. The same is, accordingly, dismissed. The

trial court shall proceed ahead with the case in accordance

with law.

42) Copy of this judgment be sent to the learned trial court

for information and compliance.

(Sanjay Dhar) Judge Srinagar 12.10.2021 "Bhat Altaf, PS"

                                           Whether the order is speaking:          Yes
MOHAMMAD ALTAF BHAT
                                           Whether the order is reportable:        Yes
2021.10.12 16:47
I attest to the accuracy and
integrity of this document