J&K High Court Stays Defamation Case Against 'Article 370' Makers for BNSS Procedural Lapse

Introduction

In a significant ruling emphasizing procedural rigor in criminal complaints under the newly enacted Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the High Court of Jammu & Kashmir and Ladakh has stayed further proceedings in a criminal defamation case against filmmaker Aditya Dhar and others involved in the production of the movie Article 370 . The court's interim order, passed by Justice Moksha Khajuria Kazmi on February 6, 2026, comes in response to a petition challenging the issuance of pre-cognizance summons by a trial court magistrate, who allegedly failed to adhere to mandatory examination requirements under Section 223 of the BNSS. This decision underscores the high court's insistence on strict compliance with statutory safeguards designed to protect accused persons from undue harassment, particularly in private complaints alleging reputational harm stemming from artistic or cinematic portrayals. The petitioners, including Aditya Dhar as a producer and a related production company, argued that the trial court's hasty summons issuance bypassed essential steps, such as recording sworn statements from the complainant and witnesses. The stay remains in effect pending objections from the respondent, Ghulam Mohammad Shah, with the matter listed for further hearing on March 23, 2026. This development highlights ongoing tensions between freedom of expression in the film industry and claims of defamation, especially in the sensitive context of narratives involving Jammu & Kashmir's socio-political landscape.

Case Background

The dispute originates from the 2024 release of Article 370 , a feature film directed by Aditya Suhas Jambhale and produced by Aditya Dhar, among others, which dramatizes events surrounding the abrogation of Article 370 in Jammu & Kashmir. The film, produced under the banner of a private company incorporated under the Companies Act, 2013, portrays fictionalized elements inspired by real events, including depictions of militancy and terrorism in the region. Ghulam Mohammad Shah, the respondent and complainant, filed a private complaint under Section 210 of the BNSS before the Forest Magistrate in Srinagar on December 30, 2025. Shah alleged that the filmmakers had incorporated a photograph resembling him into the movie, portraying him as a terrorist character within the plot, thereby damaging his personal and social reputation.

Shah's complaint invoked Section 356 of the Bharatiya Nyaya Sanhita (BNS), 2023, which criminalizes defamation through words, signs, or visible representations that harm a person's reputation. He sought initiation of prosecution against the petitioners—Aditya Dhar (petitioner No. 1), another individual (petitioner No. 2), and the production company (petitioner No. 3)—claiming the unauthorized use of his likeness caused irreparable harm. Without recording any sworn statements or providing the accused with relevant documents, the magistrate issued pre-cognizance summons on the same date, directing the petitioners to appear in court on February 7, 2026.

Aggrieved by this order, the petitioners approached the High Court under Section 528 of the BNSS, seeking to quash the complaint and the summons. This section empowers higher courts to intervene in subordinate proceedings to prevent abuse of process or secure the ends of justice. The petition was filed as CRM(M) No. 36/2026, accompanied by an application (CrlM No. 72/2026) for dispensation of certain formalities, which was allowed. The core legal questions before the High Court included: Whether the magistrate's issuance of summons without examining the complainant and witnesses on oath violated Section 223(1) of the BNSS; whether the accused were denied a fair opportunity to be heard prior to cognizance; and if such procedural lapses warranted staying or quashing the proceedings. The case timeline reflects the swift judicial response: the complaint was filed and summons issued on December 30, 2025, the petition entered the High Court by early 2026, and the stay order followed hearings on February 6, 2026. This backdrop illustrates the intersection of entertainment law, defamation claims, and procedural criminal jurisprudence in a post-BNSS legal framework.

Arguments Presented

The petitioners, represented by a formidable team led by Senior Advocate Syed Faisal Qadri, alongside Advocates Farman Ali Magrey, Parag Khandhar, Ibrahim Alam, Chandrima Mitra, and Sikander Hayat Khan, mounted a robust challenge centered on procedural infirmities. They contended that the Forest Magistrate's actions flouted the explicit mandate of Section 223(1) BNSS, which requires a magistrate, upon receiving a complaint, to examine the complainant and any present witnesses on oath, reduce the substance of their statements to writing, and obtain signatures from all parties involved. No such examination occurred, they argued, rendering the summons premature and illegal. Furthermore, the proviso to Section 223(1) mandates that no cognizance be taken without affording the accused an opportunity to be heard, and copies of the complaint, sworn statements, and related materials must be supplied to enable effective defense. The petitioners highlighted that they received no such documents, and a review of the trial court record—summoned by the High Court—confirmed the absence of any sworn statements.

To bolster their position, the petitioners invoked a series of High Court precedents emphasizing the mandatory nature of these steps. They relied heavily on the Allahabad High Court's ruling in a 2025 case (2025 SCC OnLine All 4884), where it was held that post-complaint under Section 210 BNSS, the magistrate must first record sworn statements under Section 223 before considering dismissal or issuance of notice. Similar arguments drew from a Karnataka High Court judgment dated March 7, 2025, which criticized non-compliance with Section 223, including flawed notices that confused complainant and accused identities, and stressed diligent adherence to prevent non-application of mind. The petitioners also cited decisions from the Kerala High Court and a coordinate bench of the J&K High Court in Prateek Agarwal, reinforcing that procedural safeguards are non-derogable to avoid harassing the accused unnecessarily. On the merits, they implied that the film's fictional narrative did not warrant criminal defamation charges without prima facie evidence of malicious intent, though the primary focus remained on procedural grounds.

The respondent, Ghulam Mohammad Shah, appeared without counsel at the initial hearing, and thus no substantive counter-arguments were advanced before the High Court at this stage. However, the complaint's narrative suggested that the depiction was not merely fictional but a deliberate misuse of Shah's photograph to malign him as a terrorist, causing tangible reputational injury in his community. Implicit in the respondent's position was the assertion that Section 356 BNS applied squarely to protect against such harms from public media like films, and that the magistrate's summons were justified based on the complaint's allegations alone. The High Court noted the issuance of notice to the respondent for a response, indicating that fuller arguments from Shah's side would be considered at the next listing. This asymmetry in the initial presentations underscores the petitioners' procedural attack as a threshold barrier to substantive adjudication.

Legal Analysis

The High Court's reasoning, as articulated in the order by Justice Moksha Khajuria Kazmi, pivoted on the inviolability of procedural norms under the BNSS, a legislative overhaul intended to modernize and streamline criminal procedure while bolstering fair trial rights. The court meticulously dissected Section 223(1) BNSS, quoting its text verbatim to emphasize the sequential drill: examination on oath must precede any notice or cognizance, except in limited cases like public servant complaints or transfers under Section 212. In the instant case, none applied, and the magistrate's direct issuance of summons without sworn statements was deemed a clear violation. This lapse not only denied the accused their statutory right to pre-cognizance hearing but also risked turning the process into an "empty formality," as cautioned in precedents.

Central to the analysis were the cited judgments, each dissected for relevance. The Allahabad High Court precedent (2025 SCC OnLine All 4884) was quoted extensively, particularly paragraphs 8-11, which outline that after recording statements under Section 223, the magistrate must evaluate sufficiency before issuing notice; only then can cognizance follow post-hearing. This ensures the accused receives material (complaint copies, statements) for meaningful participation, preventing undue harassment if the complaint is dismissible under Section 226 BNSS. The Karnataka High Court ruling (March 7, 2025) was invoked to highlight practical errors, such as unserved documents and erroneous notices, labeling them as "absolute non-application of mind." The court noted a coordinate bench's alignment in Prateek Agarwal and the Kerala High Court's similar stance in Suby Antony, forming a consensus across jurisdictions that Section 223's mandates are procedural imperatives, not directory.

Distinguishing related concepts, the order clarified that pre-cognizance summons differ from post-cognizance processes; the former demand rigorous preliminary scrutiny to filter frivolous claims, especially in defamation cases where artistic expression intersects with personal rights. Under Section 356 BNS, defamation requires intent to harm reputation via false imputations, but procedural gateways like Section 223 act as filters against abuse. The High Court perused the trial record, confirming no statements were recorded and the notice was a "blank" form with unfilled details, further evidencing non-compliance. This analysis reinforces BNSS's shift from CrPC equivalents (e.g., Section 200 CrPC), amplifying accused protections in private complaints. By staying proceedings subject to objections, the court balanced expedition with fairness, signaling that future magistrates must internalize these steps to avoid higher court interventions.

Key Observations

The judgment features several pivotal excerpts that illuminate the court's stance on procedural compliance:

• On the statutory mandate: “A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.” (Quoting Section 223(1) BNSS directly, emphasizing the oath requirement.)

• Highlighting the procedural sequence: “After filing of complaint under Section 210 BNSS, the learned Magistrate has to first examine upon oath the complainant and the witnesses, if any, and the substance of such examination is to be reduced in writing... thereafter, after considering the same, if he finds that there is no sufficient ground to proceed, he shall dismiss the complaint under Section 226 BNSS.” (From Allahabad HC precedent, underscoring pre-notice evaluation.)

• On the need for meaningful hearing: “The proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the accused... shall append to it the complaint; the sworn statement; statement of witnesses if any.” (Extract from Karnataka HC analysis, stressing substantive safeguards.)

• Court's factual finding: “Record was called from the Court of learned Forest Magistrate, Srinagar, its perusal would reveal that the Court has not proceeded in accordance with law. The pre-cognizance notice has been issued to the petitioners on 30.12.2025... but there is nothing on record to show that the statement of the complainant or those of the witnesses have been recorded.” (Direct observation from the order, confirming non-compliance.)

• Broader implication: “Notices have been issued to the applicant without recording the statements of the complainant and witnesses, which is against the prescribed procedure under the BNSS, therefore, this Court is of the view that the impugned order is not sustainable in the eyes of law.” (Core reasoning for the stay.)

These quotes encapsulate the judgment's emphasis on due process as a cornerstone of just adjudication.

Court's Decision

The High Court issued notice to the respondent, Ghulam Mohammad Shah, and granted an interim stay on the proceedings in the trial court complaint until the next hearing on March 23, 2026, subject to any objections raised by the other side. Specifically, the order states: “In the meantime, subject to objections of other side and till next date of hearing before the Bench, the proceedings in the complaint filed by respondent, shall stay.” The court also directed the petitioners to file certified copies of the impugned complaint and order within two weeks, dispensed with initial filing requirements via the miscellaneous application, and returned the trial record while cautioning against future issuance of blank or incomplete notices.

This decision has immediate practical effects: It halts the petitioners' requirement to appear before the Forest Magistrate, averting potential harassment and allowing time for substantive arguments on the defamation merits. For the film industry, it serves as a procedural shield in defamation suits arising from creative works, particularly those touching on contentious issues like Kashmir's history, by enforcing BNSS gateways that weed out unsubstantiated claims early. Broader implications include reinforcing uniform application of the BNSS across India, as the ruling aligns with other High Courts and may influence training for magistrates to prioritize Section 223 compliance. In future cases, especially private complaints under Section 356 BNS, courts may more readily quash or stay proceedings marred by similar lapses, reducing forum shopping or rushed summons. This could deter frivolous litigation against media and artists while upholding complainants' rights through structured processes. Ultimately, the outcome may set a precedent for balancing expressive freedoms with reputational protections in an evolving digital and cinematic era, with the final adjudication potentially clarifying thresholds for defamation in fictional narratives.