In what has come as a big relief to two eminent journalists named Aditya Raj Kaul and Arnab Goswami, the Jammu and Kashmir and Ladakh High Court has in a learned, latest, laudable and landmark judgment titled Aditya Raj Kaul & Ors. Vs Naeem Akhter in CRMC No. 58/2019 that was reserved on 16.09.2021 and delivered finally on 13.10.2021 quashed a defamation complaint filed by the senior leader of Peoples Democratic Party (PDP), Naeem Akhter against the Editor-in-Chief of Republic TV, Arnab Goswami and journalist Aditya Raj Kaul.

While underscoring that the press has a bounden duty to bring to the notice of the viewers and readers the day-to-day events, particularly those relating to public figures and public servants concerning their actions/omissions affecting the public at large, the Bench of Justice Sanjay Dhar observed thus:

...when a journalist publishes accurate and true report in respect of a public figure relating to his public functions, which is already in public domain, it cannot be stated that there was any intention to harm the reputation of such person. No denying it!

To start with, the single Judge Bench of Hon'ble Mr Justice Sanjay Dhar of Jammu and Kashmir and Ladakh High Court who authored this brief, brilliant, bold and balanced judgment sets the ball rolling by first and foremost citing from very well known old cases stating that:
Those who fill a public position must not be too thin skinned in reference to comments made upon them. It would often happen that observations would be made upon public men which they know from the bottom of their hearts were underserved and unjust; yet they must bear with them and submit to be misunderstood for a time. (Per Cock Burn, CJ, in Seymour V. Butten worth (1862) 3 F&F 372). Whoever fills a public position renders himself open thereto. He must accept an attack as a necessary, though unpleasant, appendage to his office. (Per Bramewll, B in Kelly V. Sherlock, (1866 ) LRIQB, 689).

While laying the background, the Bench then puts forth in para 1 that, Petitioners have challenged the complaint filed by the respondent against them before the Court of Chief Judicial Magistrate, Srinagar, alleging commission of offences under Section 499 and 500 RPC, as also the order dated 27.12.2018 passed by the said Magistrate whereby cognizance of the offences has been taken and process has been issued against the petitioners. They have also challenged order dated 23rd February, 2019 passed by learned Chief Judicial Magistrate, Srinagar, whereby bailable warrants for securing attendance of the petitioners have been issued.

As we see, it is then stated in para 2 that, Petitioner No.3 happens to be the Editor-in-Chief of the news channels Republic TV and Republic Bharat/R. Bharat and Managing Director of ARG Outlier Media Asianet News Pvt. Ltd. whereas petitioners No.1, 2 and 4 are associated with the aforesaid news channels.

To put things in perspective, the Bench then envisages in para 3 that, It emerges from the record of the trial court that the respondent (complainant herein), a member of the Jammu and Kashmir People's Democratic Party, who was also a member of the Jammu and Kashmir Legislative Assembly besides being leader of the Legislative Party, JKPDP at the relevant time, filed a complaint against the petitioners (accused hereinafter) before the Court of learned Chief Judicial Magistrate, Srinagar.

In the complaint it was alleged that on July 4th, 2018, the news channel of petitioner No.3 broadcast a defamatory and malicious news segment against the complainant following a letter dated June 21st, 2018, written by one Mr. Khalid Jahangir, member of Bhartiya Janta Party and former VC of J&K Projects Construction Corporation (JKPCC), to the Governor , wherein Mr. Khalid Jahangir had leveled allegations of corruption and favouritism against a close aide of former Chief Minister of the State.

According to the complainant, even though the letter did not make a mention of name of any person, yet petitioner No.3, while reporting about the said letter, deliberately and intentionally mentioned the name of complainant in connection with the allegations leveled in the aforementioned letter of Mr. Khalid Jahangir.

Furthermore, the Bench then enunciates in para 4 that:
It is further alleged in the complaint that the anchors of the programme i.e., petitioners No.1 and 4, repeatedly and intentionally kept on mentioning complainant's name in connection with the allegations made in the letter that was addressed to the Governor. The aforesaid accused persons talked about massive corruption happening in JKPCC and concluded that such alleged corruption was happening at the behest of the complainant.

It is averred in the complaint that the petitioner No.2 heads and reports on the affairs related to Srinagar for the channel owned by petitioner No.3. The complainant also annexed the video of the news segment in the form of a compact disk(CD) along with his complaint.

Going ahead, the Bench then brings out in para 5 that:
According to the complainant, the accused made and published direct imputations against him and also to the political party to which he belongs with the intention to harm his reputation in the eyes of public at large. It was alleged in the complaint that though in the news segment, Mr. Khalid Jahangir, who had written letter against the complainant, did not mention the name of the complainant in the programme yet the anchors of the programme, kept on asking him about the identity of the Minister referred to in the letter and thereafter they themselves concluded that the Minister in question is the complainant. It is alleged that the news segment in question is defamatory and has been made with a mala fide intention to cause irreparable damage to the reputation of the complainant.

What then ensues is stated in para 6 that:
On the basis of aforesaid allegations and after recording statements of the complainant and his witness on oath in support of the allegations made in the complaint, the learned Chief Judicial Magistrate, Srinagar, took cognizance of the offences against the accused and after observing that offence under Section 500(b) RPC is made out against the accused, the learned Magistrate proceeded to issue process against them. It appears that when accused did not cause their appearance before the learned Magistrate, order dated 23.02.2019 came to be passed whereby bailable warrants were issued against the accused to secure their presence before the Court.

As a fallout, what next ensues is then laid bare in para 7 that:
The petitioners have challenged the complaint as well as the proceedings emanating there from on the grounds that the allegations of corruption against the complainant were not made by the petitioners but these were made by Mr. Khalid Jahangir in his letter addressed to the Governor and the petitioners on the basis of the said letter only broadcast a news segment relating to these allegations.

It is contended that the letter in question was already in public domain at the relevant time, therefore, offence complained of is not made out against the petitioners. It is further contended that not only the petitioners but several other news agencies carried the news item on the basis of the letter dated 21st June, 2018.

The petitioners go on to contend that the broadcast was concerning the conduct of a public servant in discharge of his public duties and the same was aired in good faith for public good. It is also contended that the broadcast reported fairly the contents of the letter which contained serious allegations of corruption in relation to the working of the JKPCC and the manner in which contracts/works were awarded to third parties. Thus, according to the petitioners, the offence under Section 500 RPC is not made out against them and, as such, the complainant as well as the proceedings emanating therefrom deserve to be quashed.

To be sure, the Bench then hastens to add in para 9 that:
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 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.

Quite forthrightly, the Bench then points out in para 10 that:
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, higher the degree of responsibility upon the authority vested with such power to exercise it with circumspection. These powers are generally exercised to secure the ends of justice.

Truth be told, it cannot be glossed over that the Bench then observes in para 32 that:
Having carefully watched the news programme contained in the compact disk attached to the complaint, I do not find any imputation or any allegation having emanated from the presenters of the news programme.

The anchors and presenters only repeatedly referred to the letter of Shri Khalid Jahangir and read out contents thereof. In fact, upon watching the programme on the compact disk, it appears that the news anchors were at pains to emphasize the fact that their source of information is the letter in question and they go on repeatedly telling the viewers about the charges/allegations with each caption carrying question mark(?) at its end, thereby conveying to the viewers that the allegations/charges contained in the letter are yet to be established. By doing so, the channel has, while telecasting the programme, taken due care that is expected of a responsible news channel. In this view of the matter, it cannot be stated that the accused intended to harm the reputation of the complainant.

No doubt, the Bench then makes it clear in para 33 that:
The next question that arises for consideration is as to whether reporting of allegations levelled by a senior office bearer of a Public Sector Corporation against a Minister touching the public duties of the said Minister would amount to offence of defamation. The answer to this question has to be in negative. This is so because categorizing as defamation, the publication of allegations/ charges concerning public duties of public figure recorded in a letter which is in public domain, would be an unreasonable restriction on the freedom of press guaranteed under Article 19(1)(a) of the Constitution.

More to the point, the Bench then rightly points out in para 36 that, In somewhat similar circumstances, the Supreme Court in the case of Jawaharlal Darda and others v. Manoharrao Ganpatrao Kapsikar and another, AIR 1998 SC 2117, quashed the prosecution against Chief Editor, Editor and Executive Editor of a newspaper who had published a news item regarding happenings that had taken place during a debate in the Assembly. Paras 4 and 5 of the said judgment are relevant to the context and the same are reproduced as under:

4. As we have stated earlier, the news item was published on 4.2.84. The complaint in that behalf was filed by the complainant on 2.2.87. The news item merely disclosed what happened during the debate which took place in the Assembly on 13.12.83. It stated that when a Question regarding misappropriation of Government funds meant for Majalgaon and Jaikwadi was put to the Minister concerned, the had replied that a preliminary enquiry was made by the Government and it disclosed that some misappropriation had taken place. When questioned further about the names of persons involved, he had stated the names of five person, including that of the complainant. The said proceedings came to be published by the accused in its Daily on 4.2.84. Because the name of the complainant was mentioned as one of the persons involved and likely to be suspected he filed a complaint before the learned CJM alleging that as a result of publication of the said report he had been defamed.

5. It is quite apparent that what the accused had published in its newspaper was an accurate and true report of the proceedings of the Assembly. Involvement of the respondent was disclosed by the preliminary enquiry made by the Government. If the accused bona fide believing the version of the Minister to be true published the report in good faith it cannot be said that they intended to harm the reputation of the complainant. It was a report in respect of public conduct of public servants who were entrusted with public funds intended to be used for public good. Thus, the facts and circumstances of the case disclose that the news items were published for public good. All these aspects have been overlooked by the High Court.

As a corollary, the Bench then remarkably adds in para 37 that:
From the foregoing ratio laid down by the Supreme Court, it is clear that when a journalist publishes accurate and true report in respect of a public figure relating to his public functions, which is already in public domain, it cannot be stated that there was any intention to harm the reputation of such person.

What's more, the Bench then states straightforwardly in para 39 that:
There can be no quarrel with the legal proposition that in order to bring a case within the exceptions, the burden always lies upon the accused but then in the instant case, even the ingredients of main Section 499 RPC are not made out from the contents of the complaint and the material attached thereto because the imputations which have been published by the channel of the petitioners have not originated from them but the originator of these imputations is someone else i.e., Shri Khalid Jahangir who had written a letter containing allegations against the respondent to the Governor which found its way into public domain.

Having carefully watched the whole of news programme as contained in the CD annexed to the complaint, I could not find even a single allegation or imputation originating from the anchors of the program. The accused/anchors only go on repeating the contents of the letter referred to above. They only repeated what was contained in the letter. Thus, the argument raised by learned Senior counsel appearing for the respondent does not hold any merit.

Interestingly enough, the Bench then holds in para 40 that:
Having held that the complaint and the material on record do not constitute an offence of defamation against the petitioners, let us now proceed to analyze as to whether the learned Magistrate has applied his mind to the material on record before passing the impugned order of issuing process against the petitioners. Before undertaking such an exercise, it would be apt to notice the legal position as regards the duty of a Magistrate at the time of taking cognizance of offences and issuing process against the accused.

Be it noted, the Bench then proceeds to point out in para 41 that:
Section 204 of the J&K Cr. P. C provides that before issuing a process against the accused, a Magistrate taking cognizance of an offence has to form an opinion that there is sufficient ground for proceeding in the matter. The said opinion has to be formed on the basis of the material on record. The provision contemplates application of mind on the part of the Magistrate before proceeding against the accused.

It is worth noting that the Bench then waxes eloquent to state in para 42 that:
The Supreme Court in the case of Pepsi Foods Ltd. & anr. (supra), while discussing the matter relating to summoning of an accused in a criminal case, has, in para 28, of the judgment observed as under:

28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto.

He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

Quite significantly, the Bench then brings out in para 43 that:
Again, in Mehmood ul Rehman v. Khazir Mohammad Tunda and others, (2015) 12 SCC 420, the Supreme Court, while explaining the duty of a Magistrate at the time of issuing process against the accused, has issued certain guidelines to the Magistrates. Paras 20, 21 and 22 of the judgment are relevant to the context and the same are reproduced as under:

20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Limited (supra), to set in motion the process of criminal law against a person is a serious matter.

21 Under Section 190(1)(b) of Cr.P.C., the Magistrate has the advantage of a police report and under Section 190(1)(c) of Cr.P.C., he has the information or knowledge of commission of an offence. But under Section 190(1)(a) of Cr.P.C., he has only a complaint before him. The Code hence specifies that a complaint of facts which constitute such offence. Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) of Cr.P.C. The complaint is simply to be rejected.

22. The steps taken by the Magistrate under Section 190(1)(a) Cr.P. C followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court.

No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course.

There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 Cr.P.C, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 Cr.P.C, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction.

If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 Cr.P.C, the High Court under Section 482 Cr.P.C is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.

No less significant is what is then laid bare in para 44 that:
In Subramanian Swamy's case (supra), the Supreme Court once again emphasized the fact that a heavy responsibility and duty lies on the Magistrate to find whether the accused concerned is legally responsible for the offences charged for. The Court, particularly, made these observations with reference to complaints pertaining to the offence of defamation. Paras 207 and 208 of the said judgment are relevant to the context and the same are reproduced as under:

207. Another aspect required to be addressed pertains to issue of summons. Section 199 CrPC envisages filing of a complaint in court. In case of criminal defamation neither can any FIR be filed nor can any direction be issued under Section 156(3) CrPC. The offence has its own gravity and hence, the responsibility of the Magistrate is more. In a way, it is immense at the time of issue of process.

Issue of process, as has been held in Rajindra Nath Mahato v. T. Ganguly Rajindra Nath Mahato v. T. Ganguly, 1972 1 SCC 450, is a matter of judicial determination and before issuing a process, the Magistrate has to examine the complainant. In Punjab National Bank v. Surendra Prasad Sinha Punjab National Bank v. Surendra Prasad Sinha, 1993 Supp 1 SCC 499 it has been held that judicial process should not be an instrument of oppression or needless harassment.

The Court, though in a different context, has observed that there lies responsibility and duty on the Magistracy to find whether the accused concerned should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded, then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly.

Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. In Pepsi Foods Ltd. v. Special Judicial Magistrate Pepsi Foods Ltd. v. Special Judicial Magistrate, 1998 5 SCC 749, a two-Judge Bench has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. 208.

We have referred to these authorities to highlight that in matters of criminal defamation the heavy burden is on the Magistracy to scrutinise the complaint from all aspects. The Magistrate has also to keep in view the language employed in Section 202 CrPC which stipulates about the residence of the accused at a place beyond the area in which the Magistrate exercises his jurisdiction. He must be satisfied that ingredients of Section 499 CrPC are satisfied. Application of mind in the case of complaint is imperative.

No wonder, the Bench then deduces in para 45 that:
From the analysis of aforesaid ratio laid down by the Supreme Court in its various judgments, it is clear that issuing a process in a criminal complaint against an accused is a serious business and it cannot be done in a casual and mechanical manner, particularly in cases relating to defamation.

Most significantly, the Bench then states upfront in para 46 that:
In the instant case, the learned Magistrate, while issuing process against the petitioners, it seems, has not applied his mind to the whole material before him. The complainant has himself admitted in the complaint that Shri Khalid Jahangir had written a letter to the Governor which contained allegations of corruption etc. against him. He had also placed on record a copy of the said letter along with his complaint. The news programme, which is contained in a compact disk attached to the complaint, clearly shows that the programme was based on the letter of Shri Khalid Jahangir and no allegation or imputation emanated from the news anchors or the channel.

The complainant has also placed on record along with the complaint the news paper cuttings of different newspapers in which contents of the aforesaid letter were extensively referred to and quoted. Therefore, it was obvious that the letter in question was already in public domain. Had the learned Magistrate applied his judicial mind to the material on record, he would have come to the conclusion that the alleged offence is not made out against the petitioners/accused. It seems that the learned Magistrate has approached the whole matter lightly, and in a mechanical manner while issuing the process against the petitioners.

For sake of clarity, the Bench also added in para 47 that:
As already noted, in the case of complaints alleging commission of offence of defamation, the responsibility of a Magistrate to examine the material on record is of a higher degree. However, in the instant case, the approach of the learned Magistrate while passing the impugned order exhibits lack of application of mind to the material on record. The impugned order of issuing process against the accused is, therefore, not sustainable in law.

Quite ostensibly, the Bench then added in para 48 that:
In view of what has been discussed hereinbefore, it is clear that no offence is disclosed against the petitioners from the contents of the complaint and the material annexed thereto. The case, therefore, squarely falls within the four corners of illustration No. (1) of Bhajan Lal's case (supra). Thus, the complaint and the proceedings emanating there from deserve to be quashed.

Simply stated, the Bench then holds in para 49 that:
Accordingly, the petition is allowed and the complaint titled Naeem Akhter v. Arnab Goswami & others pending before the Court of Chief Judicial Magistrate, Srinagar, and the proceedings emanating therefrom are quashed.

Last but not the least, it is then finally held in para 50 that:
Trial court record along with a copy of this judgment be sent back.

In conclusion, India today need such fearless Judges like Hon'ble Mr Justice Sanjay Dhar who never buckle under any political or other pressure and lay down the correct legal position in accordance with law. If journalists are suppressed under the garb of defamation then how can our fourth pillar of democracy that is the Press function freely, fairly and fearlessly? Mercifully, we see in this case that Jammu and Kashmir and Ladakh High Court while quashing complaint against journalists - Arnab Goswami and Aditya Raj Kaul have made it crystal clear that the reporting of allegations about official duties of public figures do not constitute defamation. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh