If you are stuck in such a situation, here is what to do.
Mr. Sameer Khanna, a software developer from the city of Anandpur, found himself in a distressing situation. He received a formal notice from Ms. Rina Deshmukh, a former business associate, which he believed contained false and malicious statements intended to harm his professional reputation. Feeling aggrieved, Mr. Khanna approached the local police station to file a First Information Report (FIR) for defamation. However, the police declined to register the case, citing it as a non-urgent matter.
Undeterred, Mr. Khanna, on the advice of his counsel, filed a private complaint before the local Magistrate’s court. He presented the defamatory notice and other preliminary evidence. After hearing the matter, the Magistrate was satisfied that a cognizable offence appeared to have been committed. Consequently, the court issued an order under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, directing the police to register an FIR against Ms. Deshmukh for the offence of defamation under Section 356 of the Bharatiya Nyaya Sanhita (BNS), 2023, and to conduct a thorough investigation.
Advice in such cases
Remain Calm and Document Everything: Do not react impulsively. Keep a record of all communications, notices, and any incidents related to the matter. Preserve the original defamatory material securely.
Understand the Legal Path: When the police do not register an FIR, the law provides a remedy to approach the Magistrate’s court. This is a standard legal procedure and not an unusual event.
Cooperate with the Investigation: Once the FIR is registered by court order, the police are bound to investigate. Cooperate fully with the Investigating Officer (IO) and provide all evidence and information you possess.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
Applicable Sections of Law
Section 356 of the Bharatiya Nyaya Sanhita (BNS), 2023 – Defamation: This section defines the offence of defamation. It penalizes anyone who, by words (spoken or written), signs, or visible representations, makes or publishes any imputation concerning any person with the intent to harm, or knowing that it will harm, their reputation. The punishment can include imprisonment up to two years, a fine, or both. The new law also introduces community service as a possible punishment.
Section 173 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 – Information in cognizable cases: This section outlines the duty of the police to record information related to the commission of a cognizable offence, which is commonly known as filing an FIR.
Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 – Magistrate’s power to order investigation: This is a crucial provision. If a person’s FIR is not registered by the police, they can approach a Magistrate with a complaint. If the Magistrate finds merit in the complaint, they can order the police to register the FIR and investigate the offence, as happened in the case of Mr. Khanna.
If you are the complainant
Follow up with the Police: After the court order, provide a copy to the concerned police station. Ensure the FIR is registered with the correct facts and sections of law.
Provide Evidence: Submit all evidence, including the defamatory notice, emails, messages, and a list of witnesses, to the Investigating Officer.
Stay in Touch with Your Lawyer: Keep your lawyer informed about the progress of the investigation and seek guidance on every step.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
If you are the accused
Do Not Panic: Being named in an FIR does not mean you are guilty. It is the beginning of an investigation to ascertain the truth.
Seek Legal Counsel Immediately: This is the most critical step. An experienced criminal lawyer can advise you on your rights and the best course of action, which may include applying for anticipatory bail if you fear arrest.
Prepare Your Defense: Compile all evidence, documents, and communications that can prove your innocence or provide context to the allegations. For instance, if your statements were true and made in the public good, it could be a valid defense.
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
How the police behave in such cases
When an FIR is registered under a court’s direction, the police are mandated to act. Typically, the police station will formally register the FIR and assign the case to an Investigating Officer (IO). The IO will commence the investigation by summoning the complainant to record a detailed statement and collect evidence. Subsequently, the IO will summon the accused person for questioning and to present their side of the story. The police will also record statements from any witnesses mentioned by either party and collect documentary or digital evidence. Their primary role is to collect facts and evidence to determine if a case is made out for trial. They will then file a final report (chargesheet or closure report) in court.
FAQs people normally have
Can the police refuse to investigate after a court order?
No, the police are legally bound to comply with a Magistrate’s order under Section 175(3) of the BNSS. Refusal can lead to contempt of court proceedings against the concerned officers.Is defamation a civil or a criminal offence?
Defamation has both civil and criminal remedies in India. A person can file a criminal complaint under Section 356 of the BNS and can also file a civil suit for damages for loss of reputation.Will I be arrested immediately if a defamation FIR is filed against me?
Not necessarily. The offence of defamation is bailable. Furthermore, as per Supreme Court guidelines, arrest is not automatic. The police must follow due procedure, and in many such cases, they may issue a notice for you to join the investigation without making an immediate arrest.
What evidence is required?
For the complainant (the person who was defamed):
The original defamatory material (e.g., the letter, notice, email, social media post).
Proof of publication or communication to a third party.
Testimony of witnesses who saw or read the defamatory content.
Evidence showing the harm caused to your reputation, such as testimony from colleagues, friends, or evidence of business loss.
For the accused (the person alleged to have defamed):
Evidence proving the truth of the statement.
Proof that the statement was made in good faith for the public good.
Evidence showing the statement was a fair comment on a matter of public interest.
How long will the investigation take?
The BNSS aims for a swifter justice system. For offences punishable with imprisonment of less than three years, the investigation should ideally be concluded promptly. However, the exact timeline can vary depending on the complexity of the case, the number of witnesses, the availability of evidence, and the workload of the police. An investigation in a defamation case could take anywhere from a few months to over a year before a final report is filed in court.
Advocate Sudhir Rao, Supreme Court of India