Arguments before court can form basis for defamation case: Jammu and Kashmir High Court

The High Court of Jammu and Kashmir and Ladakh recently observed that even arguments made by lawyers before a court can form the basis for the initiation of a criminal defamation case if the arguments are per se defamatory [Satya Prakash Arya v. Syed Abid Jalali]..Justice Sanjay Dhar explained that such arguments or pleadings before a court would amount to the "publication", which is a requirement for the offence of criminal defamation under Section 499 of the Ranbir Penal Code (RPC)."The law is well settled that when pleadings containing defamatory material are relied before a court of law, the same amounts to publication within the meaning of Section 499 of RPC ... Taking a cue from this, it can safely be stated that even the arguments made by a counsel upon instructions from his client, which are per se defamatory in nature, can form basis for prosecution of such client for offence under Section 499 of RPC," the Court's July 20 ruling said. .The High Court made the observation while dealing with a man's (petitioner) plea challenging the initiation of a defamation case that was pending before a trial court in Srinagar. The defamation case was tied to a complaint filed by the petitioner against a Kashmir-based businessman (respondent) in 2013. The petitioner, a Jaipur-based businessman, had accused the respondent of taking jewellery without making payment and having militant connections, eventually leading to the respondent's arrest.The respondent moved for bail, first before a trial court in Jaipur and later before the Rajasthan High Court. The petitioner opposed the respondent's bail applications on various grounds, including by claiming that he (the respondent) had links to the banned terror outfit, Hizbul Mujahideen. This led the Rajasthan High Court to refer the matter to the National Investigation Agency (NIA). In May 2016, the NIA gave a clean chit to the respondent and concluded that he did not have any link with the Hizbul Mujahideen.The respondent was eventually granted bail by the Rajasthan High Court in 2016 after he spent around six months in jail.The respondent then filed a defamation case against the petitioner. The respondent argued that the petitioner's baseless allegations had led to the respondent's illegal detention, a loss of business and damaged his reputation..The petitioner, however, argued that the defamation case could not stand for two reasons. Firstly, he claimed that the allegations of "militant" connections were made by the petitioner's lawyer without his advice or consent. Secondly, he argued that the allegations were made before courts in Jaipur, Rajasthan and not Jammu and Kashmir. Therefore, the petitioner argued that the trial court in Srinagar did not have the territorial jurisdiction to deal with the case..The High Court rejected the petitioner's first contention, after noting that it is already settled law that even defamatory arguments and pleadings before a court would constitute its "publication.""Therefore, the contention of the learned Senior Counsel appearing for the petitioner that the submissions made by the counsel for the petitioner during the course of arguments on bail application of the respondent before the Court at Jaipur cannot form basis for prosecution of the petitioner for offence under Section 499 of RPC, is not tenable," the Court said..However, the High Court agreed with the petitioner's argument that the defamation case could not be tried in Srinagar since the alleged offence occurred in Jaipur, Rajasthan. "The petitioner is a resident of Rajasthan and he is alleged to have committed offence of criminal defamation beyond the limits of erstwhile State of Jammu and Kashmir; as such, he cannot be prosecuted at Srinagar in the instant case," the High Court said while allowing the plea. .Senior advocate ZA Qureshi with advocate Agha Faisal Ali appeared for the petitioner..[Read Judgment]