For an offence to be considered as defamation, both mens rea and actus rea must be present: Jammu and Kashmir High Court

For an offence to be counted as defamation, the mental intent which is the mens rea and the physical act which is actus rea are both valid essentials. An act performed which lacks either or both of the essentials is not considered as defamation in the eyes of law. This was decreed by the Hon’ble Mr. Justice Javed Iqbal Waniin the case of Altaf Hussain Mufti Vs. Javed Choudhary [CRM (M) 214/2019] before the Hon’ble High Court of Jammu and Kashmir at Srinagar.

The brief facts of the case are, on 27.12.2016 an article appeared in daily newspaper “Rising Kashmir” mentioning therein that the complainant respondent herein is being considered for the coveted post of Principal of Government Medical College (GMC) Srinagar and reactions thereto by various organizations. These organizations, the article stated, had issued a joint statement to Kashmir News Service in which it was stated that the complainant respondent herein has huge question mark of his past as Medical superintendent and HoD of G.B. Panth Hospital, Srinagar, where hundreds of infants died right under his nose in the year 2012 and that he has many cases registered against him in the Vigilance, Crime Branch and other agencies. the petitioner herein as a conscientious citizen and being sensitive to the death of children in the G. B. Panth Hospital, where the complainant respondent herein was holding the position of HoD, decided to express his views and accordingly got published an article written by him on 28.12.2016 in daily newspaper “Greater Kashmir”. In his article, stated to have also mentioned what previously had been reported by the newspapers about the death of the children in G. B. Panth Hospital, without mentioning anywhere the name of the complainant respondent herein. The article and the comments therein are stated to have been made by the petitioner fairly as having been previously made in the press note of the aforesaid organizations/institutions as also being emotionally connected to GMC Srinagar, wherefrom the petitioner had obtained his graduation in medicine. The petitioner is also stated to have mentioned in the article the report of one-man commission headed by Director SKIMS who after inquiry had concluded that the HoD Pediatrics/Medical Superintendent was guilty of dereliction of duty, incompetence, lack of integrity and that he was responsible. Shocked by this, the respondent filed a complaint before the court of judicial magistrate for defamation where cognizance was taken. Aggrieved by this, the petitioner has filed the present petition.

The counsel for the petitioner submitted that, in the backdrop of what has been stated in the petition, no offence whatsoever is made out in the complaint against the petitioner and that in essence the article in question falls within the “Exception-I” and “Exception-II” appended to section 499 IPC. According to learned counsel, the petitioner has in good faith written the article in question, which was based on the information and write-ups published in the newspapers, with a view to ensure that the post of principal of GMC Srinagar is held by a person being above board, man of integrity and possessed of professional ethics. According to learned counsel, by stating these as norms for purposes of appointment, which undoubtedly are for public good having regard to the nature of appointment, the petitioner has therefore not defamed the respondent. The counsel for the respondent however argued that the complaint is based on certain motives and ill will discernable from the perusal of the complaint itself and that the documents annexed with the complaint show that there were inquiries held against the complainant respondent.

The learned judge heard the contentions of both the parties and held that the gist of the offence of defamation lies in the dissemination of the harmful imputation. The court relied on the judgement in S. Khushboo Vs. Kanniammal reported in 2010 (5) SCC 600, wherin it was held that, “it is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the `freedom of speech and expression’ is indeed a very high one and there should be a presumption in favour of the accused in such cases. It is only when the complainants produce materials that support a prima facie case for a statutory offence that Magistrates can proceed to take cognizance of the same. We must be mindful that the initiation of a criminal trial is a process which carries an implicit degree of coercion and it should not be triggered by false and frivolous complaints, amounting to harassment and humiliation to the accused.” The court also relied on the judgement in Kartar Singh and others Vs. the State of Punjab, reported in AIR 1956 SC 541, wherein it was held that, “Those who fill a public position must not be too thin skinned in reference to comment made upon them. Whoever fills a public position, renders himself open to attack. He must accept an attack as a necessary, though unpleasant, appendage to this office.”

Thus, applying the above-mentioned rationale, the court allowed the petition ruling that, “What emerges from the aforesaid analysis it is deducible that both the elements i.e. mens rea and actus rea, sine qua non for constituting an offence of defamation are found missing in the article in question in its entirety. There has been neither any intent on the part of the petitioner to cause harm to the reputation of the complainant respondent herein nor is it discernible that any actual harm has been done to the reputation of complainant respondent herein, more particularly in view of the fact that the complainant respondent herein has been found eligible for promotion as Principal GMC Srinagar by the government. The case of the petitioner indisputably can be said to fall within the above Exceptions appended to section 499 IPC.”

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