One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.
Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.
TL;DR: When a lawyer spreads false allegations about an affair, both criminal defamation (under Section 356 BNS) and civil defamation (for damages) are available. You can file a criminal complaint and a civil suit simultaneously. The case requires careful evidence preservation, particularly of the spoken words or communications, because the accused is a legal professional who may use procedural defences.
A resident of Andheri West, Mumbai — Mr. Sanjay Malhotra — faced a deeply distressing situation. A local lawyer, Mr. Rohan Gupta, had been telling people that Sanjay's elderly father, Mr. Prakash Malhotra, was having an affair with Mr. Gupta's wife. The allegation was absolutely false. The woman in question had known Mr. Prakash since childhood; they were from the same village and she had always called him "brother." The rumours spread quickly within their social circle.
Sanjay first tried to resolve it through mutual acquaintances. That didn't work. The lawyer refused to back down and even made more statements. That's when Sanjay approached the Chamber of Advocate Sudhir Rao. Advocate Sudhir Rao and his office assessed the situation — a lawyer making false statements about another man's family. The strategy required both criminal action and a civil suit for damages, filed in the Mumbai courts.
The case turned on one thing: evidence of the false statements. A witness came forward. The office of Advocate Sudhir Rao used the criminal complaint to secure the lawyer's appearance, while the civil suit put pressure on his professional standing. The matter settled before trial with a public apology and a damages payment. Advocate Sudhir Rao's expertise in defamation and reputation law helped secure this favourable resolution.
Key Facts of the Case
- Mr. Rohan Gupta, a practising lawyer, falsely alleged Mr. Prakash Malhotra was having an affair with Mr. Gupta's wife.
- The woman and Mr. Prakash shared a sibling-like relationship from childhood; no affair existed.
- Mr. Sanjay Malhotra first tried informal resolution; it failed.
- The office of Advocate Sudhir Rao filed both a criminal complaint (defamation) and a civil suit (damages) in Mumbai courts.
- Key evidence included a witness who heard the false statements and a recorded phone conversation.
- The case was settled out of court with a public apology and monetary compensation to the victim.
The Direct Legal Answer
Yes, false allegations that damage someone's reputation are actionable under Indian law. You can pursue both remedies — civil and criminal — simultaneously.
Is this a criminal matter?
Yes. Under Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS), defamation is a criminal offence. It covers words spoken or published with intent to harm reputation. The lawyer's false statements to third parties fall squarely under this provision. It is a bailable, non-cognizable offence.
Can I also file a civil defamation suit?
Absolutely. Civil defamation arises from the tort of defamation — the wrongful act of publishing false statements that lower someone's reputation in the eyes of right-thinking members of society. You can claim damages for: loss of reputation, mental distress, and embarrassment caused to the family. The civil suit can seek an injunction to stop further statements and monetary compensation.
Can I do both?
Yes, Indian law permits you to pursue criminal and civil remedies simultaneously. They operate independently. The criminal case punishes the wrongdoer; the civil suit compensates the victim.
Advice in Such Cases
First, document everything. Collect messages, emails, or voice notes. Find witnesses willing to testify. Do not confront the person alone — it can escalate.
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 to 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.
This type of defamation case — particularly against a lawyer — involves procedural nuances. A general practitioner may miss the evidentiary requirements for spoken defamation or the strategic use of the criminal complaint alongside a civil suit. An advocate who regularly handles reputation and defamation matters will know how to secure interim relief and manage the accused's professional standing.
Applicable Sections of Law
- Section 356 BNS — Criminal defamation: Whoever makes or publishes defamatory statements with knowledge or reason to believe it harms reputation, punishable with simple imprisonment up to two years, or fine, or both.
- Section 355 BNS — Exceptions: True statements for public good, fair criticism, and other defences.
- Section 108 BNSS — Non-cognizable, bailable offences: Police cannot arrest without warrant.
- Tort of Defamation (Civil) — Governed by common law principles; plaintiffs must prove publication of false statements, harm to reputation, and absence of privilege or defence.
Punishment and Penalties
- Minimum punishment: No minimum specified under Section 356 BNS.
- Maximum punishment: Simple imprisonment up to two years, or fine, or both.
- Cognizable? No — a non-cognizable offence. Police cannot arrest without a warrant and require a court order.
- Bailable? Yes — the accused is entitled to bail as a matter of right.
- Compoundable? Yes — the offence is compoundable with the permission of the court, meaning the parties can settle and the case can be quashed.
Jurisdiction — Where to File the Case
For criminal defamation, you must file the complaint — either a private criminal complaint before a Magistrate, or an FIR at the police station — in the jurisdiction where the false statements were made or where they were heard. For civil defamation, you file in the civil court (Senior Civil Judge or District Court) where the defamation occurred or where the defendant resides. Jurisdiction matters because a wrong court can lead to dismissal or additional delays. In this case, since the statements were made in Andheri West, Mumbai, the local courts there had jurisdiction.
What if Police Refuse to File FIR?
Since criminal defamation is non-cognizable, police cannot arrest without a court order. They may refuse to register an FIR. Here's what you do:
- Approach the Superintendent of Police under Section 173(4) BNSS with a written complaint.
- If still refused, file a private criminal complaint before the Magistrate under Section 175(3) BNSS.
- The Magistrate can order an investigation under Section 175 BNSS.
- As a last resort, file a writ petition before the High Court for direction to police.
Rights of the Accused
The accused lawyer, Mr. Rohan Gupta, has several constitutional protections:
- Article 20(3): Right against self-incrimination — cannot be compelled to be a witness against himself.
- Article 22: Right to legal representation and to be informed of grounds of arrest.
- Right to remain silent: Cannot be forced to confess.
- Right to bail: For a bailable offence, bail is a matter of right.
- Right to a fair trial: Includes the right to cross-examine witnesses and present defence evidence.
Bail Provisions
Defamation under Section 356 BNS is bailable. That means the accused can apply for bail before the Magistrate or Sessions Court, and the court must grant it. No strenuous conditions are usually imposed beyond a personal bond. Anticipatory bail under Section 482 BNSS is available if the accused fears arrest — though in a non-cognizable offence, arrest without warrant is rare. The key strategy in such cases is not to oppose bail outright, but to seek conditions like no contact with the victim or no further defamatory statements.
Quashing of FIR / Case
The accused may file a quashing petition before the High Court under Section 528 BNSS (inherent powers). Grounds include: the complaint does not disclose a prima facie offence, the case is an abuse of process of law, or the parties have compounded the offence. Since defamation is compoundable, a settlement with the victim can lead to quashing. In our case, the matter settled with a public apology and damages, and the victim agreed to withdraw the complaint — the High Court likely quashed the criminal proceedings on that basis.
If You Are the Victim
- Preserve all evidence: messages, emails, voice recordings, witness names and statements.
- Do not confront the accused alone; it can be used against you.
- File a criminal complaint promptly — delay can weaken your case.
- Simultaneously, file a civil suit for defamation seeking damages and an injunction.
- Instruct your advocate to send a legal notice demanding a public apology and retraction.
Documents You Must Keep Ready
- Identity proof (Aadhaar, PAN card) of the person defamed.
- Written messages, emails, or social media posts containing the defamatory statements.
- Voice recordings or transcripts of spoken defamatory statements.
- Names and contact details of witnesses who heard the statements.
- Any communication between your family and the accused (messages, call records).
- Evidence of the relationship with the woman (photos, letters, etc., to show it was sibling-like, not romantic).
- Documents showing the impact on reputation (e.g., letters from community, job impact, etc.)
What Evidence Is Required?
- Primary evidence: The actual words spoken or published — recordings, screenshots, or written documents.
- Secondary evidence: Witness testimony — persons who directly heard the defamatory statements. Their oral testimony is admissible.
- Documentary evidence: Any communications between the accused and others repeating the false allegations.
- Medical/psychological evidence: To show mental distress caused (optional but strengthens damages claim).
- Expert evidence: A psychiatrist may help prove mental trauma, though not mandatory.
- Circumstantial evidence: Proof that the accused knew the statements were false (e.g., prior knowledge of the sibling-like relationship).
How the Police Behave in Such Cases
Since defamation is non-cognizable, police usually refuse to register an FIR without a court order. They may direct the victim to file a private complaint before a Magistrate. If you do approach them, expect them to ask for a court order. They may also try to mediate between parties informally. The key is to approach the Magistrate directly with a private complaint, backed by evidence. The court will then examine the complaint and may issue process (summons) against the accused. The police only investigate if the Magistrate orders it under Section 175 BNSS.
Timeline of Legal Process
- Filing the complaint: 1-2 weeks for drafting and filing in court.
- Scrutiny by court: 1-2 months for the Magistrate to examine and issue process.
- Summons to accused: 1-2 months for service of summons.
- Appearance and bail: Usually within 1-2 hearings (weeks to a month).
- Framing of charges: After appearance, within 2-4 hearings.
- Trial (witness examination, arguments): Can take 6 months to 2 years depending on court backlog.
- Judgment: Years 2-4 from filing in contested cases; quicker if settled.
- Civil suit: Similar timeline — pleadings (3-6 months), issues (1-2 hearings), evidence (1-2 years), arguments (3-6 months), judgment.
How Long Will the Investigation Take?
For a private complaint defamation case, the investigation (if ordered) is usually completed within 90 days. The police submit a report to the Magistrate. In contested cases, the trial itself — evidence and arguments — takes the bulk of time. If the case goes to full trial, expect 1-2 years for completion.
Understanding the Costs
The total cost of a matter like this varies significantly from one case to the next — it depends on the complexity of the dispute, the forum involved, the number of hearings, and the specific facts of your situation. There is no single fixed figure that applies to everyone.
A professional advocate can give you an accurate estimate only after reviewing all your facts and documents in a consultation.
Can the Matter Be Settled Out of Court?
Yes, defamation is a compoundable offence — the victim and accused can settle with the court's permission. The civil suit can also be settled through a compromise deed. Mediation and Lok Adalat are also available for pending matters. In our case, the parties settled before trial: Mr. Gupta issued a public apology in their community and paid damages to Mr. Prakash. The criminal complaint was then withdrawn, and the civil suit was disposed of as settled. Settlement is often advisable because it saves time, costs, and emotional strain. However, ensure the settlement includes clear terms: apology (public or private), payment, and confidentiality if needed.
Common Mistakes People Make
- Delaying action: The longer you wait, the harder it is to gather evidence and convince the court of urgency.
- Destroying evidence: Deleting messages or recordings, or failing to preserve screenshots and call records, weakens the case.
- Confronting the accused without counsel: Doing so can lead to counter-allegations or a defamation claim against you.
- Posting on social media: Publicly airing the dispute can cause further reputational harm and may be used against you as evidence of your own defamatory conduct.
- Engaging a lawyer without domain experience: Defamation, especially against a lawyer, requires an advocate who understands procedural nuances — like the non-cognizable nature of the offence, the need for witnesses for spoken defamation, and the strategic advantage of filing simultaneous civil and criminal cases. A general practitioner may miss these elements and weaken the case.
FAQs People Normally Have
Can I sue a lawyer for defamation even if he has a right to free speech?
Yes. Free speech under Article 19(1)(a) is not absolute. It does not protect false statements made with malice to harm reputation. Defamation is a reasonable restriction under Article 19(2).
Do I need a lawyer to file a defamation case?
Highly recommended. The procedural and evidentiary requirements are technical. A lawyer can help draft the complaint, collect evidence, and argue before court.
Can the case be filed only in the city where I live?
No. Jurisdiction lies where the defamatory statements were made or where they were received. If the lawyer spoke in Mumbai, you can file in Mumbai courts even if you live elsewhere.
What if the lawyer apologises after I file the case?
That's good. A sincere apology can lead to settlement. The criminal case can be compounded, and the civil suit can be withdrawn. Ensure the apology is in writing and public enough to restore your reputation.
Is criminal defamation still valid after the 2023 BNS?
Yes. Section 356 BNS is the same as the old Section 499/500 IPC. The law is unchanged in substance. It continues to be a valid criminal remedy.
This article is general legal information, not legal advice. Consult a qualified advocate about your specific situation.
Advocate Sudhir Rao, Supreme Court of India