In a recent judgment, the J&K High Court has observed that 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.
The respondent had filed a private complaint under Section 500 RPC against the petitioner before the Court of Chief Judicial Magistrate, Anantnag and the said Magistrate after taking cognizance had issued process against the petitioner. Thereafter, the petitioner challenged the said order and urged for the quashment of the complaint by filing the instant petition under Section 561-A CrPC.
It was alleged in the complaint that the Petitioner, who at the time of alleged incident was a M.L.A at the Devsar Constituency, addressed two public meetings, one at Devsar and another at Kund, wherein he made defamatory and baseless allegations against the respondent/complainant.
The respondent/complainant had stated in his complaint that the petitioner during the public meeting at Devsar, made defamatory statements against the respondent that he has accumulated property worth of crores by looting poor people and further 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 and he received bribe of Rs.10.00 lakhs for each appointment in J&K Bank, also received an amount of rupees one crore from every officer.
Similar statements were alleged to have been made by the petitioner during public meeting at Kund. 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.
The complainant/respondent had received the defamatory statements through social media as the same had gone viral.
Proceedings before the CJM, Anantnag:
The CJM, Anantnag on receiving the complaint filed by the respondent recorded a preliminary statement of the respondent and his witnesses. Thereafter the said Magistrate took cognizance of the complainant and issued process against the petitioner. It is the said order which was assailed by the petitioner in the instant petition and also prayed for quashment of the complaint.
Grounds of Challenge:
It was the plea of the petitioner that at the relevant time he 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.
He further pleaded 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.
He also pleaded 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.
Observations of the Court:
The Court after relying upon the judgment of the Supreme Court in R. S. Nayak v. A. R. Antulay observed that MLA is not a public servant within the meaning of Section 21 of RPC and 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.
While answering another contention of the petitioner, the Court observed that 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. The Court relied upon its own judgment in Rahul Kanwal v. P. K. Tikoo (Brig.) & another, 2013 (1) JKJ 380[HC].
With regard to the question that whether the complaint and other supported material constitute an offence of defamation against the petitioner. The Court after referring to the judgment in Subramanian Swamy v. Union of India, (2016) 7 SCC 221 observed 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.
It was also contended by the petitioner that the alleged defamatory statements were made outside the local limits of jurisdiction of Chief Judicial Magistrate, Anantnag, as both the places where the public meetings were held are located within the territorial jurisdiction of District Kulgam.
While answering the contention of the petitioner the court observed as under;
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 all those places where these statements are published or 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.
The Court while dismissing the petition observed that the 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 Court ultimately upheld the order of the trail Court and held that the averments made in the complaint by the respondent and the supported material clearly disclose commission of offence under Section 500 RPC and directed the trail Court to proceed ahead in accordance with law.
Title: Mohammad Amin Bhat vs Mohammad Sartaj Madni
Case no: CRMC No.379/2018
Coram: Justice Sanjay Dhar
Mr. M. Saleem Parray, Advocate for the Petitioner.
Mr. Jahangir Iqbal Ganie Sr. Adv. with
M/S: Sheikh Umar & Murfad, Advocates, appeared for the respondent.