HP High Court to magistrates: Think twice before criminal prosecution

Vijay Arora

Shimla, May 27

Before launching criminal prosecution, it is incumbent upon magistrates to think twice. They must arrive at prima facie satisfaction that the prosecution for defamation, etc., is not based on fabricated, concocted, fictitious material.

This was held by the HP High Court while dealing with a petition challenging the order of a Judicial Magistrate, who had issued summons to the petitioner in a criminal defamation case. While setting aside the order of the magistrate, the court held that “the issuance of summons for criminal prosecution without application of mind may instill fear, altering the way a person views his/her right of free speech, and in turn, impinging on the health of any democracy. Thus, the scrutiny of the complaint must be air-tight”.

Justice Anoop Chitkara observed that “when allegations are based on defamation due to some media report(s), then it has to be ascertained that the complainant has adduced sufficient evidence to establish that such media reports were based on false or fabricated or concocted stories and were in fact not true”.

The court said “before proceeding to summon the accused, the magistrates must prima facie be satisfied that the material tendered in the complaint is not fake or incomplete or is not intentionally withheld, and the accused alone, and none else was responsible for such publication or uploading on social or other media. If the complaint clears these stages, and the imputations against the accused seem to be true, still the magistrates must assess that whether such expression of opinion, belief or criticism falls under any exceptions, including Section 499 of the IPC, given the contents of such publication(s)/ post(s)”.

The court held that “when the allegations in the complaint can curtail or impact the freedom of speech and expression, the magistrates must endeavour to protect such rights and not to hamper, curb or penalise these rights”. The court made these observations on a petition filed by Amar Singh, who contended therein that his neighbour had filed a criminal complaint before the Judicial Magistrate, Shimla, against him for the commission of offences punishable under Section 499 and 501 of the IPC (defamation) on the basis of a news report. On the basis of this, the magistrate had issued summons to him without verifying the facts.

The court declared that the discretion exercised by the magistrate in issuing summons was capricious and arbitrary.