New Delhi, Apr 30 (PTI) A Delhi court on Thursday set aside a magistrate’s order taking cognisance of a criminal defamation complaint filed by AAP leader Satyendar Jain against BJP MLA Karnail Singh, underlining that the order, which also summoned Singh, did not consider the exceptions to the offence of defamation.
Special Judge Jitendra Singh was hearing Singh’s revision plea challenging the magisterial court order on various grounds, including that it failed to determine whether the essential ingredients of the offence under Section 356 (defamation) of the Bharatiya Nyaya Sanhita (BNS) were met, particularly in the light of some of its exceptions.
The judge said, “The (BNS) provision defines defamation as the making or publication of an imputation with the intention, knowledge or reason to believe that it will harm the reputation of another. However, the provision itself incorporates exceptions which limit the scope of the offence.” He said the first exception protected a statement which was true and made for the public good, while the second and third recognised that the conduct of public servants and persons dealing with public questions was open to comment, provided such opinion was expressed in good faith and confined to their public conduct.
The ninth exception, additionally, protected statements made in good faith for the protection of one’s own interest, the interest of another, or for the public good, the judge said.
“Thus, the offence (of defamation) cannot be read in isolation from these exceptions. They are part of the statutory scheme and define the permissible limits of speech,” he said.
“If, from the complaint and the statements of witnesses, the alleged imputation appears to fall within one of these categories, that circumstance is relevant while forming an opinion on whether sufficient grounds exist to proceed,” the judge said.
He noted that the magisterial court’s complete exclusion of the exceptions from consideration was not justified.
“The trial court (magisterial court) was required to examine whether, on the material placed by the complainant itself, the alleged statements could be said to fall, even prima facie, within the scope of the exceptions invoked.” “A mere observation that such issues can be considered only at trial does not meet the requirement of judicial scrutiny, particularly when the proposed accused has been granted an opportunity of hearing,” Judge Singh said.
He underlined that where the statement concerned the conduct of a public servant or a matter of public concern, a degree of caution was required before issuing the process.
“Public acts are open to comment and criticism, and the court must examine whether the complaint discloses material sufficient to rule out, even prima facie, the protection of the statutory exceptions,” the judge said.
The proper course would have been to consider the statements in their entirety, the context in which they were made, the status of the complainant, and the nature of the issue involved, along with the exceptions pleaded, he added.
“The view taken by the trial court that the applicability of statutory exceptions can be examined only at the stage of trial is not in accordance with law… It was required to undertake a limited examination of the alleged statements, the material on record, and the exceptions pleaded, to determine whether sufficient grounds exist to proceed,” the judge said, setting aside the order.
He remanded the matter back to the magistrate to consider the applicability of the exceptions to the alleged statements.
“The impugned order is deficient since no finding has been returned on the exceptions specifically raised by the revisionist… It is clarified that this court has not expressed any opinion on the merits of the exceptions, and nothing stated herein shall be construed as an expression on their applicability,” the judge said.
On April 1, the magisterial court had said that all the ingredients of defamation were prima facie established by Jain in his complaint and by his witnesses’ testimonies, which were sufficient to proceed with the trial.
“Accordingly, there is no reason to hold that the accusation is groundless and sufficient material exists in the present case to put notice of accusation to the accused under Section 274 (substance of accusation to be stated) of the BNSS.
“Accused (Singh) to be present before this court on the next date of hearing for putting up notice of accusation to him without fail,” the court had said.
The court had taken cognisance of the complaint in January, saying there were “sufficient grounds to proceed” in the case, besides directing “issuance of process” (notice) to Singh.
Jain has accused Singh of damaging his reputation during a television interview on January 19 last year.
According to the complaint, Singh made a defamatory statement in the interview.
Singh had allegedly claimed that the Enforcement Directorate had recovered 37 kg of gold from Jain’s home, and the Aam Aadmi Party leader had 1,100 acres of land in his name, bought with wealth amassed from corruption and money laundering. PTI MNR ARI
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