Arguments Before Court Can also Form Basis for Defamation: J&K and Ladakh HC

The Jammu and Kashmir and Ladakh High Court has observed that arguments made by lawyers in court can serve as the basis for initiating a criminal defamation case if they are inherently defamatory.

A single bench of Justice Sanjay Dhar explained that such arguments or pleadings in court would amount to “publication,” a requirement for the offence of criminal defamation under Section 499 of the Ranbir Penal Code (RPC).

“The law is well settled that when pleadings containing defamatory material are relied upon before a court of law, the same amounts to publication within the meaning of Section 499 of RPC. Taking a cue from this, it can safely be stated that even the arguments made by counsel upon instructions from his client, which are per se defamatory in nature, can form the basis for prosecution of such client for the offence under Section 499 of RPC,” the bench stated.

The Judge made the observation while hearing a man’s plea challenging the initiation of a defamation case pending before a trial court in Srinagar. The defamation case stemmed from a complaint filed by the petitioner against a Kashmir-based businessman in 2013.

The petitioner, a Jaipur-based businessman, had accused the respondent of taking jewelry without payment and having militant connections, leading to the respondent’s arrest. The respondent sought bail, first from a trial court in Jaipur and later from the Rajasthan High Court. The petitioner opposed the bail applications, claiming the respondent had links to the banned terror outfit Hizbul Mujahideen. This led the Rajasthan High Court to refer the matter to the National Investigation Agency (NIA), which in May 2016 gave a clean chit to the respondent, concluding he had no links to Hizbul Mujahideen. The respondent was granted bail by the Rajasthan High Court in 2016 after spending about six months in jail.

The respondent then filed a defamation case against the petitioner, arguing that the petitioner’s baseless allegations had led to his illegal detention, loss of business, and damaged reputation. The petitioner contended that the defamation case could not stand for two reasons. Firstly, he claimed that the allegations of “militant” connections were made by his lawyer without his advice or consent. Secondly, he argued that the allegations were made before courts in Jaipur, Rajasthan, not Jammu and Kashmir, and therefore the trial court in Srinagar did not have territorial jurisdiction.

The High Court rejected the petitioner’s first contention, noting that it is already settled law that even defamatory arguments and pleadings before a court constitute “publication.”

However, the Court agreed with the petitioner’s argument regarding territorial jurisdiction, stating that the defamation case could not be tried in Srinagar since the alleged offence occurred in Jaipur, Rajasthan.

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