J&K&L High Court Stays Defamation Proceedings Against Film Director Aditya Dhar Over 'Article 370' Movie

The order was passed by Justice Moksha Khajuria Kazmi in a petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, assailing the criminal complaint as well as the order passed by the Forest Magistrate, Srinagar in terms of which pre cognisance summons had been issued against the Director.

The proceedings stem from a criminal complaint filed by Ghulam Mohammad Shah, who alleged that the petitioners, engaged in the business of development and production of feature films, had used a photograph allegedly belonging to him in the film Article 370 and depicted him as a terrorist within the narrative of the film, thereby causing damage to his reputation.

On the basis of these allegations, the complainant approached the Magistrate seeking initiation of criminal prosecution. The Magistrate, in turn, issued pre-cognizance summons to the petitioners for an offence punishable under Section 356 of the Bharatiya Nyaya Sanhita, 2023. Aggrieved by the issuance of summons, the petitioners approached the High Court.

Appearing for the petitioners, Senior Advocate Syed Faisal Qadri, assisted by Advocates Farman Ali Magrey, Parag Khandhar, Ibrahim Alam, Chandrima Mitra and Sikander Hayat Khan, raised extensive procedural objections to the manner in which the Magistrate had proceeded.

It was submitted that the Magistrate had not followed the mandatory procedure prescribed under Section 223(1) of the BNSS, which requires the Magistrate, upon presentation of a complaint, to examine the complainant and the witnesses present on oath, reduce the substance of such examination into writing, and have the same signed by the complainant, witnesses, and the Magistrate.

It was argued that, contrary to this statutory mandate, no sworn statement of the complainant or witnesses had been recorded, yet pre-cognizance notice had been issued to the petitioners directing them to appear before the trial court.

Senior counsel further contended that Section 223 BNSS also obligates the Magistrate to supply copies of the complaint, sworn statement, and other relevant material to the accused, so as to enable them to effectively avail the statutory opportunity of being heard before cognizance is taken. It was submitted that no such material had been furnished to the petitioners.

The petitioner's counsel also drew the Court's attention to the record summoned from the trial court, submitting that it did not reflect compliance with the procedural requirements contemplated under the BNSS prior to issuance of notice.

In support of these submissions, reliance was placed on the judgment of the Allahabad High Court reported as 2025 SCC OnLine All 4884, wherein it was held that after filing of a complaint under Section 210 BNSS, the Magistrate must first record sworn statements under Section 223 BNSS and only thereafter consider issuance of notice to the accused.

Reference was also made to similar views taken by other High Courts, including the Kerala High Court, on the mandatory nature of compliance with Section 223 BNSS before proceeding further on a private complaint.

After hearing the submissions advanced on behalf of the petitioners and perusing the record of the trial court, the High Court issued notice to the respondent.

Pending further consideration of the matter and subject to objections from the other side, the High Court has stayed the proceedings in the criminal complaint filed against the petitioners before the trial court. The matter has been directed to be listed on March 23 for further consideration.

APPEARANCES:

Mr. Syed Faisal Qadri, Sr. Advocate with Mr. Farman Ali Magrey, Advocate Mr. Parag Khandhar, Advocate Mr. Ibrahim Alam, Advocate Ms. Chandrima Mitra, Advocate Mr. Sikander Hayat Khan, Advocate

Case Title: Aditya Dhar and Ors. VS Ghulam Mohammad Shah

Click Here To Read/Download Judgment