Defamation in India

“Just because something isn’t a lie does not mean that it isn’t deceptive. A liar knows that he is a liar, but one who speaks mere portions of truth in order to deceive is a craftsman of destruction” Criss Jami writes in Killosophy. This is one of the accurate observation of slander that I have read. 
Grundnorm for Defamation in India could be found in Article 19(1)(a)r/w Article 19(2). Article 19(1)(a) provides for the freedom of speech but it not absolute. It is restricted by article 19(2) which imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Defamation
Defamation is the act of communicating false statements about a person that injure the reputation of that person when observed through the eyes of ordinary man. Any false and unprivileged statement published or spoken deliberately, intentionally, knowingly with the intention to damage someone’s reputation is defamation. A man’s reputation is treated as his property and such damage are punishable by law. It could be written or verbal. Written defamation, printed or typed material or images is called as libel and spoken defamation is called slander.
In India, Defamation can be viewed as a civil offence as well as criminal offence and may be defined as the writing, publication and speaking of a false statement which causes injury to reputation and good name for private interest. 
The remedy for civil offences covered under the Law of Torts. According to the law, an offended person can approach the district or high courts to get the recovery in the form of monetary compensation for the damages from the accused person.
What causes Civil Defamation:
The statements made need to be false and it must be made without the consent of the alleged defamed person. Monetary compensation can be claimed from the defendant for defamation. There are certain requirements for successful defamation suit. They are:
1. The presence of a defamatory statement is required. Defamatory content is one calculated to injure the reputation of a person or a class of persons by exposing them to hatred, contempt or ridicule. The test whether it damages reputation has to be calculated from the eyes of a common man and his comprehension of the matter.
2. Secondly, the statements must purport to a person or a class of persons. General statements like all politicians are corrupt is too broad and no specific politician can gain compensation for the same.
3. It must be published either in oral or written form. Unless the content is made available to a third person, there can be no defamation. Where a letter is sent in a language unknown to the recipient, he needs a third person to read to it him. If any defaming statement is made in it, it will constitute defamation even if it was sent as a private letter, since the aid of a third person was needed to read it.
Criminal Defamation: 
Section 499 and 500 of the Indian Penal Code provides an opportunity to the victim to file a criminal case for defamation against the accused. 
Exceptions:
Section 499 also cites exceptions. These include “imputation of truth” which is required for the “public good” and thus has to be published, on the public conduct of government officials, the conduct of any person touching any public question and merits of the public performance. Persons who make defamatory statements are exempted from punishments if they fall in one of the ten exceptions provided in Section 499. They are:
1. Attribution of any truth made for public good. Truth is seldom defense unless made for a public good.
2. Any opinion made in good faith regarding the conduct of a public servant in the discharge of his public functions.
3. Any opinion made in good faith respecting the conduct of any person which relates to a public question.
4. Publication of true reports of the proceedings of the Courts or the result of the proceedings is not defamation.
5. Any opinion made in good faith regarding the merits of any civil or criminal case decided by the Court of Justice, or the conduct of any person as a party, witness or agent to that case and no further.
6. Opinions made about the merits of any performance which its author has submitted to the judgement of the public, or about the author is not defamation if made in good faith.
7. Censures passed by persons neither having authority over another either conferred by a law or from a lawful contract in good faith is nor defamation. Censure is formal statement of severe disapproval.
8.Accusation of offence to any person having lawful authority over the alleged person in good faith is an exception to defamation. Complaints about servants to masters and children to parents are examples to the exception.
9. Statements made about the character of character is not defamation if it is made in order to protect the interests of the person making it, or any other person, or for the public good.
10. Cautions conveyed to one person against another are not defamation if it is intended for the good of the conveyed person, or any other, or for public good.
Punishment for the guilty person for criminal defamation is simple imprisonment which may extend to two years or fine or both. Under the criminal law, it is bailable, non-cognizable and compoundable offence.
Constitutionality of Criminal Defamation
Supreme Court upheld criminal defamation (u/s 499/500) and its constitutional validity. The judgment delivered on May 13, 2016, by the Supreme Court in Subramanian Swamy V. The Union of India (“Judgement“) was delivered by Justice Dipak Misra, with Justice Prafulla C. Pant. 
Subramanian Swamy V. The Union of India [AIR 2016 SC 2728]
A person is bound to allow the existence of something that one may dislike or disagrees within other words -criticism, dissent, and discordance, but not expected to tolerate a rush which may tarnish the reputation of that person.

Anticipatory Bail

Before going in-depth analysis of what is Anticipatory Bail and When can one apply for it and the how part of applying it, let’s see what the section says in verbatim:

Section 438: Direction for grant of Bail to person apprehending arrest:

  1. Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely—
    1. the nature and gravity of the accusation;
    2. the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
    3. the possibility of the applicant to flee from justice; and.
    4. where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail;
      Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

      1-A. Where the Court grants an interim order under Sub-Section (1), it shall forthwith cause a notice being not less than seven days’ notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court,

      1-B. The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
  2. When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including—
    • a condition that the person shall make himself available for interrogation by a police officer as and when required;
    • a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
    • a condition that the person shall not leave India without the previous permission of the Court;
    • such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.
  3. If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1).
  4. Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code1.

Now, if you are at this sentence, I hope you’ve read the section carefully. Because if you’ve then you would’ve noticed the fact that its not in verbatim. In verbatim means in exactly the same words as were used original. And the section you just read has certain amendments in it. How did we reach here? Here’s how:

A brief history of Anticipatory Bail, its object, Jurisdiction, Previous Judgments, Current Standing and the rationale behind

Under the old Code there was no provision for grant of anticipatory bail. The Law Commission in its 41st Report observed: “The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from ‘false cases’, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

Parvinderjit Singh v State (U.T. Chandigarh) AIR 2009 SC 502

Thus, the rationale behind ‘anticipatory bail’ (insurance against police custody) is that individual liberty must not be put in jeopardy on the instance of unscrupulous and irresponsible persons. While granting anticipatory bail the court must strike a balance so that individuals may be protected from unnecessary humiliation and the faith of the public in the administration of justice is not shaken. An order under Sec. 438 is a device to secure the individual’s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely.

HDFC Bank Ltd. v J. Mannan alias J.M. John Paul AIR 2010 SC 618

The object of Sec. 438 is that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant.

Adri Dharan Das v State of W.B. (2005) 4 SCC 303

An interim order restraining arrest, if passed while dealing with an application under Sec. 438 will amount to interference in the Investigation, which cannot, at any rate, be done under Sec. 438.

Before substitution Sections 438(1) read:

“When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court/ Court of Session for a direction under this section; and that court, if it thinks fit direct that in the event of such arrest, he shall be released on bail.”


Sec. 438 has been amended in 2005 to provide for certain circumstances under which the Court shall exercise its discretion for granting anticipatory bail; in case of an interim bail, the Court is required to give notice to the Public Prosecutor/Superintendent of Police and the question of bail would be re-examined in the light of the respective contentions of the parties. Further, the presence of the person seeking anticipatory bail has been made mandatory at the time of hearing of the application for the grant of anticipatory bail subject to certain exceptions.

The aforesaid amendments have been criticized. The provision relating to anticipatory bail is meant to protect people from arrest on false charges. An application for anticipatory bail does not require a vakalat, and can be filed by the accused from wherever he is. The amendment will allow the Public Prosecutor to ask for the accused to be physically present in court when the application is pending, thus making it easy for the police to intercept and arrest the accused before he reaches court. If the application is rejected, the police can arrest him immediately, thus preventing him from appealing against the decision.

This amendment thus provides an unexpected opportunity and embarrassment to the advocates to bring the alleged accused before the court. The amendment therefore defeats the purpose of the provision, doing away with an important safeguard for the accused person in criminal law. It was with a view to avoid the applicant’s physical presence that the provision for anticipatory bail was made.

Changes brought by Amendment Act of 2018
-Amendment Act of 2018 inserted clause (4) to Section 438. It provides that the provisions of Section 438 shall not be applicable to any person who has been accused of committing an offence under Sections 376(3), 376-AB, 376-DA, 376-DB of the Indian Penal Code.

Jurisdiction- Who can grant Anticipatory Bail & when can it be granted:

The section contemplates two concurrent jurisdictions, viz. the High Court and the Sessions Court (the power under Sec. 438 being rather of an unusual nature, it is entrusted only to the higher echelons of judicial service). It is left to the person to choose either of them. A person after unsuccessfully moving the Sessions Court for anticipatory bail can again approach the High Court for the same purpose and under the same section. But if he moves the High Court first and his application is rejected, he cannot approach the Sessions Court with a similar application.

Chajju Ram v Stateof Haryana, 1978 Cr LJ 608 (P&H)

Thus, it is normally to be presumed that the Sessions Court would be first approached for the grant of anticipatory bail unless an adequate case for not approaching the said court has been made out.

Syed Zafrul Hassan v State AIR 1986 Pat 1941

The power to grant anticipatory bail vests only in the Sessions Court/ High Court having jurisdiction over the locale of the commission of the offence of which the person is accused. Neither the place of residence nor the place of the apprehension of arrest give jurisdiction


NKSM Shahul Hameed, 1992 CrLJ 227 (Mad)

Anticipatory bail cannot usually be granted during the pendency of investigation. Where a previous petition for such bail was dismissed, unless there is substantial change in situation or discovery of new incriminating facts, anticipatory bail should not be granted
 

Nirbhay Singh v State, 1995 CRLJ 3317 (M.P.) (FB)

Application for anticipatory bail would be maintainable even after the Magistrate issued process under Sec. 204 or at the stage of committal of the case to the Sessions Court or even at a subsequent stage (viz, after issue of a non-bailable arrest warrant).

Suresh Vasudeva v State, 1978 Cr LJ 677 (Del)

Though Sec. 438 applies only to a non-bailable offence, it is not essential that the offence must also be a cognizable one.

Conditional order:

Section 438(2) provides that Court may include such conditions in the order as it may think fit in the light of facts and circumstances of the case. These conditions may include: –
1.  that the person shall make himself available for interrogation by a police officer as and when required;
2.  that the person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
3. that the person shall not leave India without the previous permission of the court;
4. Such other conditions as may be imposed under Section 437 (3).

Principles with regard to anticipatory bail

Supreme Court in Gurubaksh Singh Sibba v. State of Punjab, (1980) 2 SCC 565 laid down following principles in respect of anticipatory bail: –


1. Registration of FIR is not a condition precedent to exercise the power under Section 438;
2. Interim order can be passed without notice to the Public Prosecutor but before passing the final order notice must be given;
3. Order under Section 438 would not affect the right of police to conduct investigation;
4. Where a case has been made for remand under Section 167(2) or reasonable claim to secure incriminating material under section 27 of the Evidence Act, the power under Section 438 should not be exercised;
5. Blanket order of anticipatory bail should not be made.

Sushila Aggarwal (2020) Case Judgment:

  • There is nothing in Criminal Procedure Code that indicates the grant of anticipatory Bail should be time-bound.
    • However, under Criminal Procedure Code, it is discretionary power of the Court to decide on a case-to-case basis (depending upon the stage at which the Bail application has moved or prevalence of any peculiar circumstances necessitating to limit the tenure) and impose a time limit while granting pre-arrest Bail.
    • Also, this duration primarily does not end after first summoning by the Court and can continue till the end of the trial period.
  • If any Court wants to limit the Bail, it can attach special features or circumstances warranting the same.
    • The Court while granting anticipatory Bail, should examine the seriousness and gravity of the offence (like nature of the crime, material placed on records, etc.) to impose any condition on the petitioner, if necessary.
    • The police can reach the Court seeking permission for arrest in case of breach of such imposed conditions.
  • Application for anticipatory Bail could be filed by a person before the FIR (First Information Report) as soon as the facts make clear there is a substantial reason for the arrest.
  • Appellate jurisdiction to check the correctness of the granted Bail lies with the superior Court on the request of the investigating agency or the State.

The Court remarked that “when Parliament has not thought it appropriate to curtail the rights of the citizens and the power of Courts in granting anticipatory Bails, hence, it is not in larger societal interest to curtail such powers & limit the liberty of citizens. The rights of the citizens are fundamental and not the restrictions.”

In relation to the State of Uttar Pradesh, the deletion of the application of Sec. 438 under the State Amendment Act (1976) has been held to be valid. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 also excludes the application of Sec. 438 from the cases under this Act. But, recently the provision of anticipatory bail has been reintroduced in U.P. Vide Code of Criminal Procedure (U.P. Amendment) Act, 2018 (U.P. Act No. 4 of 2019; With Effect From 06.07.2019). The following amendments have taken place-

Application of anticipatory bail should be decided within 30 days.[S. 438(5) Cr.P.C.]

Cases in which Anticipatory Bail can’t be given (Sec. 438 (6) – UP Amendment)

(i) Cases of Unlawful Activities (Prevention) Act, 1967;
(ii) Cases of NDPS Act;
(iii) Cases of Official Secrets Act, 1923;
(iv) Cases of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986.
(v) Cases punishable with death sentences

If application has already been made before High Court, then second application before Sessions Court is not maintainable.[S. 438(7) Cr.P.C.]

Cancellation of anticipatory bail
Anticipatory bail can also be cancelled on those principles on which
regular bail is cancelled.

State of Punjab v Raninder Singh, AIR 2008SC 609

it was held that anticipatory bail may be cancelled if the accused does not appear before the investigating officer for interrogation and commits breach of order granting anticipatory bail.

Criminal Procedure – Object & Importance

There was at first no uniform law of criminal procedure for the whole of India. It was the Criminal Procedure Code of 1882 which gave for the first time such a uniform law of procedure. Later supplanted by Code of 1898 and then amended in 1923 and 1955. The Law Commission studied the previous codes and made various suggestion in it’s detailed 41st report. So, the code that you see, read and study now came into force on 1st April, 1974.

While drafting the code, three basic considerations, 1. Fair Trial 2. Avoidance of delay in investigation/trial 3. Fair deal to poorer sections has been kept in mind.

Object & Importance of Criminal Procedure

The law of criminal procedure is intended to provide a mechanism for the enforcement of substantive criminal law (i.e. Penal Code). The law of criminal procedure is meant to be complementary to criminal law; it creates the necessary machinery for;

  • the detection of crime,
  • arrest of suspected criminals,
  • collection of evidence,
  • determination of guilt or innocence of the suspected person, and
  • the imposition of proper punishment on the guilty person

lqbal Ismail Sodawala v State of Maharashtra (1975) 3 SCC 140

The Supreme Court has aptly stated in the above-mentioned case that: “It is the procedure that spells much of the difference between the rule of law and the rule of whim and caprice.”

The code further attempts to strike a just balance between the need to give discretionary powers to the functionaries under the Code to make the investigative and adjudicatory processes strong and effective and the need for controlling the probable misuse/abuse of these powers.

It has been rightly said that too much expense, delay and uncertainty (flaws and loopholes) in applying the law of criminal procedure would render even the best of penal laws useless and oppressive.

It may be noted that the procedural code is not wholly procedural or adjective in nature. There are certain provisions of the Code which partake of the nature of substantive law e.g. prevention of offences, maintenance proceedings, etc. The Code confers the ‘right of maintenance’, ‘right of habeas corpus’, ‘right of appeal’, etc.

Enactments regulating the procedure of courts seem usually to be imperative or Mandatory and not merely directory, In other words, the rules of procedure are enacted to be obeyed. The object of these rules is to simplify and shorten proceedings. The Code Is a complete code with respect to matters provided for by it. So far as it deals with any point specifically, the Code must be deemed to be exhaustive and the law must be ascertained by reference to its provisions.

However, absence of any provision on a particular matter in the Code does not mean that there is no power in a criminal court to make such order as the ends of justice required; the court may act on the principle that every procedure should be understood as permissible till it is shown to be prohibited [Hansraj (1942) Nag 333].

Fair Trial

A person accused of any offence should not be punished unless he has been given a fair trial’ and his guilt has been proved in such trial. The requirements of a fair trial relate to the character of the court (unbiased judge), the venue (atmosphere of judicial calm), the mode of conducting the trial (fair prosecutor; no prejudices or threats against the witnesses), rights of the accused in relation to defence and other rights (Law Commission, 37th Report). The fair conduct of a trial upholds the dignity of man in a free society which diligently guards the rights, claims and privileges of its citizens against any encroachment upon them. Denial of a fair trial is as much injustice to the accused as is to the victim and the society.

The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. In fact, the primary object of criminal procedure is to ensure a fair trial to every person accused of any crime.

Adversary System of Trial

The system of criminal trial envisaged by the Cr. P.C. is the adversary system based on the accusatory method. In this system the prosecutor representing the State accuses the defendant (the accused person) of the commission of some crime; and the law requires him to prove his case beyond reasonable doubt. The law also provides fair opportunity to the accused person to defend himself. Thus, in an adversary system, both the parties are allowed to plead their cases, put forward their arguments, rebuttals, etc., with the help of evidence or counter evidence. The judge, more or less, is to work as an umpire between the two contestants.

Experience has shown that adversary system is by and large dependable for the proper reconciliation of public and private interests i.e. public interest in punishing the criminals and private interest in preventing wrongful convictions. The system of criminal trial assumes that the State using its investigating resources and employing competent counsel will prosecute the accused who, in turn, will employ equally competent legal services to challenge the evidence of the prosecution.

The above assumption has been found to be incorrect in one respect. Though the adversary system envisages equal legal rights and opportunities to the parties to present their respective cases before the court, such legal rights and opportunities in practice operate unequally and harshly, affecting adversely the poor indigent accused persons who are unable to engage competent lawyers for their defence. The system therefore departs from its strict theoretical passive stance and confers on the accused not only a right to be defended by a lawyer of his choice, but also confers on the indigent accused person a right to get legal aid for his defence at State’s cost (Sec. 304).

Further, apart from attempting to give legal aid to the indigent accused persons, the Code has suitably altered the notions of judge-umpire. The judge is not to remain passive as an umpire, but he has to play a more positive and active role for protecting the public interests as well as the individual interests of the accused person. For instance, the charge against the accused is to be framed not by the prosecution but by the court after considering the circumstances of case (Sec. 228), the prosecutor cannot withdraw the case without the consent of court (Sec 321), the court can examine the accused at any time to get explanations from him (Sec. 331).

Though the notion of adversary system of trial has undergone some transformation by legislative prescriptions and judicial gloss, it can still be reasonably considered as an essentially important component of the concept of ‘fair trial.”

Final Take Away:

Although we have come a long way from the times when there was codified procedure to follow and the present code provides ample solutions to the loopholes but it still requires several additions to it so that the balance of power could be maintained. Also, a legal system which is quick yet thoughtful and affordable, keeping Justice, Liberty, Equality and Fraternity in mind.