Calling Someone 'Over Ground Worker' Of Terrorists Is Per Se Defamatory; Mens Rea Essential: J&K&L High Court

The Court further observed that for constituting the offence of defamation, it must be shown that the accused had intention or had reason to believe that such imputation would harm the reputation of the complainant, and that mens rea is a condition precedent.

The Court was hearing a petition filed under Section 482 Cr.P.C. challenging a complaint filed by the respondent alleging commission of offences under Section 500 RPC (defamation) pending before the court of learned Judicial Magistrate 1st Class, Samba, and the order whereby process was issued against the petitioners.

Justice Sanjay Dhar observed,

"Branding a person as 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 know him…… A bare perusal of the aforesaid news item would reveal that contents thereof are, per-se, defamatory against the respondent as he has been projected as over ground worker of terrorists having deep connections with them”

Background:

A complaint was filed by the respondent before the trial Magistrate alleging that the respondent is a businessman dealing in repairing of computers having his shop at Ramgarh, Samba. Petitioner No. 1, Sanjay Gupta, was stated to be the owner of newspaper Dainik Jagran, while petitioner No. 2, Abhimanyu Sharma, was stated to be the Chief Editor of the said newspaper.

It was alleged that the petitioners, without going into the truth of the matter, published a news item stating that the respondent is an overground worker of militants and that he along with other persons was taken into custody. It was contended that the petitioners knowingly published a defamatory news item against the respondent, due to which his image was lowered in the eyes of his relatives and other members of public.

The learned trial Magistrate, after recording the statement of the complainant and one witness, passed the impugned order, taking cognizance of the offence and observing that the petitioners had prima facie committed offence punishable under Section 500 RPC, and that there were sufficient grounds for proceeding against them.

The petitioners challenged the complaint on the grounds that petitioner No. 1 was only responsible for the general policy of the newspaper and that there were separate Resident Editors responsible for selection and publication of news items. It was also contended that the news item was already in public domain and based on information received from the investigating agency investigating the Nagrota attack, and that the trial Magistrate ought not to have issued the process as it interfered with the right to freedom of speech and expression.

Court's Observation:

The Court examined the provisions of Section 499 RPC, which defines the offence of defamation, and noted that an offence of defamation is made out whenever a person by words spoken, etc., makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person.

The Court noted that while a newspaper or media house is free to obtain information from all kinds of sources and to propagate the same amongst readers, which is a fundamental right, this right is subject to reasonable restrictions on the ground of defamation as contemplated in Clause (2) of Article 19 of the Constitution. Thus, while a newspaper has a right to publish news items based on information gathered from sources, it is also under an obligation to verify the truth of such information, the Court underscored.

Analyzing the news item in question, the Court noted that the headline stated, "OGW- Prem has made a big disclosure upon his questioning." The news item went on to state that the respondent, a resident of village Nanga of Ramgarh and an over ground worker of militants, had during questioning disclosed that the attack at Army Regiment at Nagrota, Jammu and BSF Chowki at Ramgarh Sector was revenge of Pakistan against Surgical Strike.

The Court observed that a bare perusal of the impugned news item reveals that its contents are per se defamatory in nature, as the respondent has been portrayed as an over ground worker of terrorists with deep-rooted connections to them. The Court further noted that the imputation that the respondent assisted terrorists in carrying out attacks on security forces at Nagrota and Ramgarh gravely tarnishes his reputation.

It emphasised that branding an individual as an overground worker or alleging links with terrorists ex facie lowers such a person's image and standing in the eyes of those acquainted with him.

The Court, referring to the Press and Registration of Books Act, 1867, observed that a statutory presumption attaches to the Editor, being the person responsible for selection of content. In the present case, petitioner No. 2 was declared as Editor of Dainik Jagran (Jammu edition), thereby attracting such presumption. However, there was no material to show that petitioner No. 1, the owner, had any role in the selection or publication of the impugned news item, the Court maintained.

In view of the absence of specific allegations against petitioner No. 1, the Court quashed the complaint to that extent. However, the petition was dismissed qua petitioner No. 2, and the trial Magistrate was directed to proceed against him in accordance with law.

Case Title: Sanjay Gupta & Anr. vs. Prem Kumar

Citation: 2026 LiveLaw (JKL)

Click here to read/download Judgment