The High Court of Jammu and Kashmir and Ladakh recently observed that falsely branding a person as having links to terrorists would ex facie (on the face of it) lower his reputation in society and, therefore, amounts to criminal defamation [Sanjay Gupta & Anr. v. Prem Kumar].

Justice Sanjay Dhar made the observation while dealing with a petition filed by the editor and the owner of a newspaper, challenging criminal defamation proceedings arising out of a newspaper report.

The report allegedly portrayed a person as having been an overground worker for terrorists. The Court noted that a bare perusal of the news item would show that its contents are per se defamatory.

"Branding a person as an over ground worker of terrorists or stating that the person has links with terrorists ex-facie lowers the image of such person in the estimation of those who knows him," the High Court added.

The Court also rejected the defence that the petitioners had no intent to harm anyone's reputation.

"Still then, having regard to the nature of the news item, it can prima facie be stated that they (newspaper representatives) had the knowledge that the said news item would harm the reputation of respondent/complainant," the Court reasoned.

The Court refused to quash the defamation proceedings against the editor of the newspaper, observing that he would be responsible for the selection and publication of newspaper articles.

However, it agreed to quash the criminal defamation proceedings against the newspaper's owner, after accepting the contention that there was nothing to show that he was in charge of selecting the allegedly defamatory newspaper article for publication.

The case arose from a complaint alleging that a news item published in Dainik Jagran portrayed a private individual as an overground worker for militants. The article is said to have claimed that the individual had links with terrorists and had assisted them in attacks on security forces.

According to the complainant, the report was false and fabricated, and its publication seriously damaged his reputation in society and among his relatives and acquaintances.

It was further alleged that despite being served with a legal notice seeking an apology, the publishers failed to issue any clarification or apology, leading to the filing of a criminal defamation complaint before the trial court.

A trial magistrate also took cognizance of the case. While the trial proceedings were underway, the newspaper's owner, Sanjay Gupta, and its editor, Abhimanyu Sharma, moved a plea before the High Court to quash the defamation proceedings.

Their counsel argued that the news in question was already in the public domain and was based on information received from the investigating agency probing militant attacks, including the Nagrota attack.

It was further contended that publication of the report was part of the exercise of freedom of speech and expression, and there was no intention on the part of the petitioners to harm the reputation of the complainant.

It was further argued that the owner of the newspaper was only responsible for the general policy of the publication, whereas the editor and other officials were responsible for the selection and publication of news items. Therefore, it was contended that proceedings against the owner were not legally sustainable in any case.

Counsel appearing for the complainant opposed the petition and argued that the news report contained serious and defamatory allegations portraying the complainant as an associate of militants, which had severely damaged his reputation in society.

It was submitted that the report was published without verification of facts and without any official confirmation from the investigating agencies, and therefore, the accused could not escape liability merely by claiming freedom of press.

The High Court noted that portraying a person as an overground worker of terrorists or alleging links with militants inherently damages the person’s reputation.

The Court held that such statements lower the image of a person in the estimation of others, which satisfies the ingredients of the criminal offence of defamation.

The Court added that while newspapers enjoy the fundamental right to freedom of speech and expression, this right is subject to reasonable restrictions, including the law relating to defamation.

"A newspaper or a media house is free to obtain information from all kinds of sources and to propagate the same amongst the readers/viewers which is a fundamental right. However, the said right is subject to the reasonable restrictions, inter-alia, on the ground of defamation as contemplated in Clause (2) of Article 19 of the Constitution. Thus, while a newspaper has right to dissemination of information obtained from antagonistic sources but it cannot disseminate false imputations against a person as the same is restricted in terms of Clause (2) of the Article 19 of the Constitution," it reiterated.

The Court further noted that the news item in question did not disclose that it was based on any official briefing from investigating agencies, nor was there material on record to show that the information was already in the public domain. Such questions, the Court said, could only be determined during the trial of the case.

Referring to the Press and Registration of Books Act, 1867, the Court observed that the editor of a newspaper is presumed to be responsible for the selection of material published in the newspaper, and therefore a statutory presumption arises against the editor in respect of defamatory content.

However, the Court noted that no such presumption exists against the owner of the newspaper, and criminal proceedings against the owner can continue only if there are specific allegations showing his involvement in the publication of the offending news item. Since no such allegation against the owner was found in the complaint, the Court quashed the proceedings against the newspaper's owner.

The petition was thus partly allowed, with the High Court directing the trial court to proceed with the case against the editor.

Advocate Atul Raina appeared for Dainik Jagran's owner and editor.

Advocate Meenakshi S Salathia appeared for the complainant, Prem Kumar.

[Read Order]