Allegation Of Corrupt Practices Against Public Servant Can't Be Considered Defamatory Without Proving Malice: Jammu & Kashmir High Court

Quashing a complaint involving allegations of defamation against a Senior Office Bearer of a Public Sector Corporation for writing a letter to the Governor of Jammu and Kashmir highlighting acts of omission and commission in the J&K Project Construction Corporation, the Jammu and Kashmir and Ladakh High Court has recently observed that every citizen has a right to comment on those acts of public men which concerns him as a citizen of the Country, if he does not make his commentary a cloak for Malice and Slander.

Justice Javed Iqbal Wani made these observations while hearing a plea under Section 482 CrPC in terms of which the petitioner had sought quashing of complaint pending before the Chief Judicial Magistrate and the proceedings emanating therefrom.

In the instant matter the letter written by the petitioner to the Governor had been made public and as a consequence the complainant/respondent had filed a complaint alleging that the petitioner had levelled baseless allegations of corruption and favoritism against him.The Magistrate took cognizance of the complaint and summoned the accused-petitioner which in turn constrained the petitioner to filed a petition challenging the impugned complaint and order.

The moot question that fell for adjudication before the bench was to determine the existence of the essential ingredient of making an imputation concerning any person with the intention to harm or with the knowledge that such imputation will harm the reputation of the said person, and whether the allegations in the complaint constituted a prima facie case of defamation.

Justice Wani observed that the essentials of defamation require the words to be defamatory, to refer to the aggrieved party, and to be maliciously published and the Section 499 of the Indian Penal Code brings under the criminal law the person who publishes as well as the person who makes defamatory imputations.

Describing the mandate of section 499 IPC the court said that the Explanations appended to the Section amplify the scope of the Section whereas the Exceptions take certain things out of the application of the Section. Therefore, in order to constitute an offence of defamation, the essential ingredient is to make an imputation concerning any person with intention to harm or with a knowledge or reason that such imputation will harm the reputation of the said person and an imputation without an intention to harm or without knowledge or having reason to believe that it will harm the reputation of such person will not constitute an offence of defamation, the bench underscored.

Observing that the allegations of corrupt practices against public servants could not be considered defamatory without proving malice, the bench pointed that the petitioner, as a senior officer of the Corporation, had reported alleged the allotment of various construction contracts by the Works Minister without tenders or following the codal procedures in violation of rules and regulations, requesting the Governor to constitute a Fact Finding Committee in the matter. Such allegations were made to a lawful authority by the senior officer of the Corporation, making the public conduct of the complainant/respondent the subject of comment for public good after having noticed certain acts of omission and commission committed in the running of the affairs of the Corporation, the bench recorded.

Highlighting the fact that every citizen has a right to comment on those acts of public men which concern him as a citizen of the Country, provided he does not make his commentary a cloak for Malice and Slander, the court pointed that letter resulted in the issuance of a Government Order, which constituted a Fact Finding Committee comprising of senior officers of the Government for looking into the matters/acts of alleged omission and commission pointed out by the petitioner.

“Having regard to the contents of the impugned complaint and the material attached thereto inasmuch as upon the legal principles supra against the accused petitioner, it can safely be said that the offence under Section 499 is not made out”, the bench maintained.

Having held the impugned complaint and material on record not constituting the offence of defamation against the petitioner, the court said the Magistrate has exhibited lack of application of mind to the material on record and instead seemingly has approached very lightly and in a mechanical manner in the matter while passing the impugned order.

In view of the same the bench found it necessary to invoke its inherent powers and accordingly quashed the complaint.

Case Title: Sheikh Khalid Jehangir Vs Nayeem Akhter

Citation : 2023 LiveLaw (JKL) 84

Coram: Justice Javed Iqbal Wani

Counsel For Petitioner: Mr Mohsin Qadri Sr AAG with Ms Mehreen Adv

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