Comment against minister-public good

IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRMC No. 29/2019 (CRM (M) No. 29/2019
CrlM No. 230/2019 (01/2019) CrlM No. 635/2022
Reserved on: 13-02-2023
 Pronounced on: 07 -04-2023
Sheikh Khalid Jehangir  Petitioner(s)
Through: Mr. Mohsin Qadri, Sr. AAG with
Ms. Mehreen, Adv.
Vs.
Nayeem Akhter ...Respondent(s)
Through: None
CORAM:
HONBLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

7. Keeping in mind the aforesaid position of law and the letter dated 21-
06-2018 supra on the basis of which the complainant/respondent
herein maintained the impugned complaint, it needs to be examined
and analyzed in order to find out as to whether the allegations in the
impugned complaint constitute prima facie a case of defamation.
8. Admittedly the accused petitioner in the capacity as Senior Office
Bearer of a Public Sector Corporation has reported alleged the
allotment of various construction contracts by the Works Minister
claimed by the complainant/respondent to be referring to him, without
tenders or following the codal procedures in violation of Rules and
Regulations requesting the then Governor to constitute a Fact Finding
Committee in the matter. Such report/allegations leveled by the
accused petitioner herein indisputably is an accusation made to a
lawful authority by the senior officer of the Corporation making the
public conduct of the complainant/respondent herein the subject of
comment for public good after having noticed certain acts of omission
and commission committed in the running of the affairs of the
Corporation as otherwise also every citizen has a right to comment on
those acts of public men which concerns him as a citizen of the
Country, if he does not make his commentary a cloak for Malice and
Slander. Perusal of the record would reveal that the letter dated 21-
06-2018 supra resulted into issuance of a Government Order No.
1690-GAD of 2018 dated 28-11-2018 whereby sanction came to be
accorded to the Constitution of Fact Finding Committee comprising of
Senior Officers of the Government for looking into the matters/acts of
alleged omission and commission pointed out by the accused
petitioner in the letter dated 21-06-2018 supra.
It is an admitted position of law that the expression, good
faith and public good appearing in Exceptions to Section 499 are
questions of facts and can be determined only during trial of the
case and the burden of proving an Exception being always upon the
accused.
Hereunder a reference to the Judgment of the Apex Court
passed in case titled as S. Khushboo vs. Kanniammal reported
in 2010 (5) SCC 600 becomes imperative being relevant wherein at
Para 44 and 45 following has been laid down:-
44.It is not the task of the criminal law to punish individuals merely
for expressing unpopular views. The threshold for placing reasonable restrictions on the
freedom of speech and expression is indeed a very high one and there should be a
presumption in favour of the accused in such cases. It is only when the complainants
produce materials that support a prima facie case for a statutory offence that Magistrate
can proceed to take cognizance of the same. We must be mindful that the initiation of a
criminal trial is a process which carries an implicit degree of coercion and it should not
be triggered by false and frivolous complaints, amounting to harassment and humiliation
to the accused.
45.Even though the constitutional freedom of speech and expression is
not absolute and can be subjected to reasonable restrictions on grounds such as decency
and morality among others, we must lay stress on the need to tolerate unpopular views
in the socio-cultural space. The framers of our Constitution recognized the importance of
safeguarding this right since the free flow of opinions and ideas is essential to sustain the
collective life of the citizenry. While an informed citizenry is a pre-condition for
meaningful governance in the political sense, we must also promote a culture of open
dialogue when it comes to societal attitudes.
A further reference to the Judgment of the Apex Court
Judgment passed in Kartar Singh and Ors. vs. State of Punjab
reported in AIR 1956 SC 541 also would be advantageous wherein
following has been noticed:-
50.Those who fill a public position must not be too thin skinned
in reference to comment made upon them. Whoever fills a public position,
renders himself open to attack. He must accept an attack as a necessary, though
unpleasant, appendage to this office.
Having regard to the contents of the impugned complaint and
the material attached thereto inasmuch as upon the legal principles
supra against the accused petitioner, it can safely be said that the
offence under Section 499 is not made out.