Issuing Summons In Defamation Cases Cannot Be A Mechanical Exercise, Requires Proper Application Of Mind: J&K High Court

Justice Sanjay Dhar emphasized that the responsibility of a magistrate in such cases cannot be reduced to a mere mechanical exercise.

Highlighting the responsibility of a Magistrate in such cases the court remarked, “It cannot be a casual or mechanical exercise, particularly in cases relating to defamation.The responsibility of a Magistrate to examine the material on record in the case of complaints alleging commission of offence of defamation is of a higher degree”.

The case involved petitioner, Manju Bhat, who had challenged the criminal complaint filed by her estranged husband, Dr. Amit Wanchoo, alleging her involvement in multiple offences under the Ranbir Penal Code, including defamation.

Dr. Wanchoo, a prominent businessman and social activist, claimed that following their marital discord, Bhat engaged in a defamatory campaign against him through various media outlets. The complaint was supported by social media posts, news clippings, and other communications deemed defamatory by the respondent.

The petitioner, a Maharashtra resident, challenged the Srinagar court's jurisdiction, arguing that the complaint lacked merit and failed to establish a prima facie case. They contended that a similar complaint was previously dismissed by another Srinagar magistrate, highlighting the complainant's malicious intent to harass amidst their ongoing divorce proceedings.

The respondent asserted that the petitioner's defamatory actions inflicted substantial personal and professional harm. He provided documented evidence, including social media posts and communications, to substantiate the allegations.

Adjudicating the matter Justice Dhar noted that the trial magistrate's process issuance was based solely on the preliminary statement of the complainant, without substantial evidence from other witnesses.

“Although it is recorded in the impugned order dated 26.03.2019 that the statement of one more witness has been recorded but a perusal of the statement of the said witness reveals that he has only identified the complainant and has not stated anything on merits of the complaint”, the bench recorded.

Observing that the impugned order failed to specify which offences were prima facie made out against the petitioner, the court added,

“..it is to be noted that in the complaint respondent has alleged commission of offences under Section 406, 500, 501, 506, 326/511 and 109 RPC but the learned trial Magistrate has not stated as to which of these offences is made out against the petitioner. This clearly reflects mechanical functioning of the learned trial Magistrate”.

Citing the Supreme Court's decision in Subramanian Swamy vs. Union of India (2016) the court emphasized the heightened responsibility of magistrates in defamation cases to meticulously evaluate the accused's legal liability before issuing processes.

“In the aforesaid circumstances, before proceeding to issue process against the petitioner, it would have been more prudent for the learned trial Magistrate to undertake an investigation/enquiry in terms of Section 202 of the Cr. P. C with regard to truth or falsehood of the allegations made in the complaint”, the bench underlined.

Furthermore, the court pointed at the non-adherence of sub-section (1)(a) of Section 204 of the Cr. P. C by the Magistrate which provides that summons cannot be issued against the accused until a list of prosecution witnesses has been filed.

“In the instant case, no such list of prosecution witnesses is accompanying the impugned complaint”, the court said.

In view of these considerations, the court set aside the trial magistrate's order and directed a comprehensive inquiry under Section 202 of the CrPC. It also instructed the trial court to review the records of a previously dismissed complaint on similar grounds, ensuring that the new complaint's maintainability is thoroughly examined.

Case Title: Manju Bhat Vs Dr Amit Wanchoo

Citation: 2024 LiveLaw (JKL) 215

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