PART 1 - THINGS TO KNOW BEFORE FILING DEFAMATION COMPLAINT

Being aggrieved of the ruthless comments made upon Birbal by Akbar (His Majesty) in front of the entire Darbar, Birbal has decided to file a Defamation Complaint before the Court of Law. (If you feel clueless, read the first paragraph of - PREVIEW OF DEFAMATION COMPLAINTS PROCEDURE) Also, Birbal is clueless about the legal process, so he approached Me (Note: this anecdote is fictional, if you have not realized till now).

I had to tell him the following information to make him aware about “Defamation Case Procedures in Indian Courts” in exchange of some legal-fee of course:

• SECTION 499: Defamation is a Criminal offence under Section 499 of Indian Penal Code. This legal provision contains the legal definition of ‘Defamation’, which has to be followed by Courts and the judicial fraternity in order to convict or acquit an Accused person.

 

Short-Gyan: Did you know that making defamatory comments against a dead individual is also a criminal defamation offence!

 

• PUNISHMENT: Upon conviction, the convict can be imprisoned for a maximum period of 2 Years AND/OR can be fined for an amount which is deemed reasonable and fit by the Judicial Magistrate, as per Section 500 of Indian Penal Code.

 

• DEFAMATION CASE FOLLOWS PROCEDURE OF A SUMMONS-CASE: As punishment is of 2 years, therefore, Defamation case procedure will follow a Summons Case procedure. “Summons Cases” are such cases, the maximum punishment of which is Imprisonment of 2 years (See, Section 2(w) and 2(x) of Code of Criminal Procedure, 1973).

 

 

 

STEP-BY-STEP PROCEDURE IN A CRIMINAL DEFAMATION CASE

1.   Legal Notice: It is always better to send a Legal Notice, through an Advocate, to the Accused person before filing the case in Court, so that the dispute can be settled then and there.

 

Short-Gyan: Pursuing Litigation is always a hassle for individual parties, and hence, should always be opted as the last resort.

 

2.   File Complaint in Court: A Complaint mentioning all the factual details as well as legal details related to the Defamation incident shall be filed before the appropriate Court. The Appropriate Court can be ascertained from Schedule - 1 of CrPC (i.e. Code of Criminal Procedure).

 

Short-Gyan: Generally, the First-step regarding criminal incidents is to file an F.I.R with a police station. However, in Defamation cases the complaints are to be filed at the Court directly, at the first instance. (See, Section 199 of CrPC)

 

3.   Verification of Complainant: The Complainant is required to recite the important facts of the case to the Magistrate. It is imperative that the ‘chain of events’ is properly explained to the Magistrate which led to the publication of the defamatory content by the Accused. Such recital of facts to the Magistrate is to be done by the Complainant himself/herself. This stage is called “Verification of Complainant” in legal language. (See, Section 200 of CrPC)

 

4.  Cognizance by Magistrate (Sections 202 / 203 / 204): After recording the verification of the Complainant, the Magistrate requires the Complainant’s Advocate to prima-facie establish the case. It is the job of the Advocate to establish that the case is genuine and that it prima-facie fulfills all the ingredients of a Defamation Offence u/s. 499 of IPC.

 

 

After hearing the Advocate, the Magistrate may pass the either of the following 03 Orders:

a.    Issue Process Order: This means that the Magistrate is in favour of the Complainant and believes that the Accused must now be brought to Court to make his defense. (See, Section 204 of CrPC)

b.  Dismissal Order: This Order means that the Magistrate is not in favour of the Complainant’s case, and therefore has dismissed the case. (See, Section 203 of CrPC)

c.    Inquiry Order u/s. 202: This means that the facts and evidences produced before the Magistrate are not enough to establish the case. Therefore, the Magistrate passes this Order directing the Police to inquire into the case and submit a report to Magistrate after the inquiry. Relying upon the Inquiry report of Police, the Magistrate then passes the Issue Process/Dismissal Order afterwards. (See, Section 202 of CrPC)

 

5.   Summons Issued: In case the “Issue Process Order u/s. 204 CrPC” is passed by the Magistrate, it means that a ‘Summons’ shall also be issued by the Court Department against the Accused, which will force the Accused Person to come to Court on the next hearing date.

 

Short-Gyan: Don’t be under the misconception that the Court will send the Summons to the Accused! In order to save time and accelerate the court procedures, the Complainant / Advocate has to send the Summons to the address of Accused - Refer to - PART 1: PRACTICAL INSIGHTS AND STAGES IN A CHEQUE BOUNCE COMPLAINT?

I will stop here for now. The further steps / procedures involved in a Defamation case will be discussed in the next Short-icle.

There is a reason, I call these “SHORT”-icles!

Also, in the upcoming short-icles, in order to give a reality-check to everyone, I will discuss some common incidents which may seem to be 'Defamatory' to normal public, but actually are NOT as per law. 

 

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NEXT SHORT-ICLE ON:

PART 2 – THINGS TO KNOW BEFORE FILING DEFAMATION COMPLAINT

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ABOUT THE AUTHOR:

Advocate Shreyas Jain, being a legal practitioner based in Mumbai, specializes in Criminal Law and primarily deal with criminal matters placed before Metropolitan Magistrates and Session Courts at Mumbai & Thane. Mr. Jain is a first generation lawyer and believes in working and excelling at the ground level before going big. You may reach him through his e-mail jainshreyas1995@gmail.com

NOTE: VIEWS MENTIONED IN THE ARTICLE ABOVE ARE PERSONAL AND HAS NOTHING TO DO WITH ANY PERSON, PLACE, ORGANISATION OR ANY OTHER FALLING UNDER THE DEFINITION OF ‘PERSON’ UNDER INDIAN PENAL CODE, 1860.