Criminal Defamation Under Section 356 BNS: Filing and Defending

What counts as defamation under section 356 BNS?

Section 356(1) defines defamation in the same words the IPC used. A person commits defamation who, by words spoken or intended to be read, by signs or by visible representations, makes or publishes an imputation concerning another person, intending to harm that person's reputation, or knowing or having reason to believe that it will harm it. Four elements have to be shown: an imputation, about an identifiable person, published to someone other than that person, with the required intention or knowledge.

Publication is the element most often missing. An abusive message sent only to the person concerned is not defamation, however offensive, because no third person read it; it may be insult under another provision, but not section 356. Equally, the imputation must be about the complainant: a statement about "some people in this office" does not defame an individual unless the context identifies them.

The explanations to the section widen the net. An imputation about a deceased person can be defamation if it would have harmed their reputation while living and is intended to hurt the family. A company or an association can be defamed. An imputation in the form of a question, an alternative or irony still counts. And harm to reputation means lowering the person's moral or intellectual character, character in respect of caste or calling, or credit, in the estimation of others.

What changed from IPC sections 499 and 500?

Very little in substance. The definition, the explanations and the ten exceptions are carried over almost word for word. The main change is in punishment: section 356(2) adds community service as a possible sentence alongside simple imprisonment of up to two years and fine. The old section 501 (printing defamatory matter) and section 502 (selling it) are now section 356(3) and 356(4).

Which law applies depends on when the statement was made or published. A defamatory article published in March 2024 is prosecuted under the IPC even if the complaint is filed in 2026; one published after 1 July 2024 falls under the BNS. Procedure follows the BNSS for complaints filed after that date. Our post on which law applies to your case, IPC or BNS explains the transition rules in more detail.

The four parts of section 356 at a glance

All four offences are non-cognizable and bailable, and are triable by a magistrate. The Supreme Court upheld the constitutional validity of criminal defamation in Subramanian Swamy v Union of India (2016), so the debate about whether it should remain a crime is for Parliament, not a defence in an individual case.

The ten exceptions: when an imputation is not defamation

The exceptions are where most defamation cases are really fought. Each has its own conditions, and good faith runs through most of them.

• First: truth for the public good. A true imputation is protected only if it is made or published for the public good. Truth alone is not enough, and whether it was for the public good is a question of fact.
• Second: public conduct of public servants. An opinion expressed in good faith about a public servant's conduct in discharging public functions, and their character so far as it appears in that conduct.
• Third: conduct touching a public question. An opinion in good faith on any person's conduct on a public question, and their character as it appears in that conduct.
• Fourth: reports of court proceedings. A substantially true report of the proceedings of a court, or of the result.
• Fifth: merits of a decided case. An opinion in good faith on the merits of a case decided by a court, or on the conduct of a party or witness in it.
• Sixth: merits of a public performance. An opinion in good faith on a book, film, speech or other work submitted to public judgement, and on the author's character as it appears in it.
• Seventh: censure by a person in authority. Censure passed in good faith by someone with lawful authority over another, such as an employer or a teacher, in matters to which that authority relates.
• Eighth: accusation to an authority. An accusation preferred in good faith to a person with lawful authority over the subject, such as a complaint to the police, a magistrate or a superior officer.
• Ninth: protection of interests. An imputation made in good faith to protect the interest of the person making it, the person to whom it is made, or the public.
• Tenth: caution. A caution conveyed in good faith to one person against another, for the good of the person cautioned or of the public.

Can the police register an FIR for defamation?

No. Defamation is non-cognizable, and BNSS section 222 goes further: a court can take cognizance of defamation only on a complaint made by a person aggrieved. A police complaint about defamation will be recorded, at most, as a non-cognizable report, and the complainant will be told to approach the court. This is one of the commonest misunderstandings, and people lose months waiting for the police to act.

There is one exception. Where the defamation is of the President, the Vice-President, a Governor, the Administrator of a Union territory, a Minister, or another public servant in respect of their public functions, section 222 allows the Public Prosecutor to file the complaint directly in the Court of Session, with prior sanction of the government, within six months of the offence. The public servant can still file a private complaint before a magistrate instead.

The same facts can sometimes disclose cognizable offences as well. A defamatory post made from a fake profile may involve identity theft or impersonation under the IT Act; a threat attached to the imputation may be criminal intimidation under section 351 BNS. The police can register an FIR for those offences, but the defamation part still has to come to court by complaint.

Who is the 'person aggrieved' who can file?

Ordinarily the person defamed. Where the imputation is about a deceased person, close family members whose feelings it was intended to hurt can file. A company files through a director or officer authorised by a board resolution, and the authority document should be filed with the complaint; complaints without it are a frequent ground of challenge.

A member of a group can file only if the group is definite and identifiable, so that the imputation can be said to refer to each member. A statement about a profession or a community as a whole does not usually let any individual member prosecute. Courts have also been wary of complaints filed by supporters or party workers about statements concerning a leader, since they are not the persons defamed.

Filing a criminal defamation complaint: the steps

The sequence below is for a complaint before a magistrate in Delhi. The structure is the same in Noida and Ghaziabad.

1. Secure proof of publication

   Collect the original newspaper, letter, pamphlet or recording, or certified screenshots for online material with a certificate under BSA section 63. Identify the people who read or heard the imputation and are willing to say so. Without publication, there is no case.

2. Decide whether to send a legal notice

   A notice is not compulsory, but asking for a retraction and apology within a short time often ends the matter and shows the court you acted reasonably. Our post on sending a legal notice explains what it should contain.

3. Draft the complaint

   Set out who made the imputation, its exact words, when and where it was published, to whom, why it is false or not protected by any exception, and the harm caused. Attach the documents and a list of witnesses.

4. File before the right magistrate

   File before the Chief Judicial or Chief Judicial Magistrate (earlier called the Chief Metropolitan Magistrate) of the district where the publication took place, who marks it to a court. In Delhi this is at the district complex for that area, such as Saket, Patiala House, Tis Hazari, Karkardooma, Rohini, Dwarka or Rouse Avenue.

5. Pre-summoning evidence

   Under BNSS section 223 the magistrate examines the complainant and witnesses on oath. If the accused lives outside the court's jurisdiction, the magistrate must conduct an inquiry under section 225 before issuing process.

6. Hearing of the accused before cognizance

   The proviso to BNSS section 223 requires that the accused be given an opportunity of being heard before the magistrate takes cognizance. The accused receives notice and may appear through an advocate.

7. Summons, appearance and trial

   If the court finds sufficient ground, it issues summons. The accused appears, furnishes a bail bond, and the case proceeds as a summons case: notice of accusation, complainant's evidence, the accused's statement, defence evidence, arguments and judgment.

What does the new hearing before cognizance change?

Under the old CrPC, the accused usually had no say until summons were issued. The BNSS now requires the magistrate to give the accused an opportunity of being heard before taking cognizance of a complaint. In defamation cases this matters a great deal, because many of the strongest defences are visible from the complaint itself: no third-party publication, a complainant who is not the person aggrieved, a complaint filed after three years, or an imputation that falls plainly within an exception, such as a complaint made to the police.

Courts are still settling how much the accused can argue at this stage, and practice varies between courtrooms. The hearing is not a trial, and the accused cannot lead evidence in the full sense. But a short, focused reply that points to a legal defect on the face of the complaint can end the case before summons, which saves years. A point Advocate B.K. Singh makes to clients who receive such a notice is that this hearing should be treated as the first real opportunity in the case, not as a formality to be adjourned.

Where should a defamation complaint be filed?

Where the publication took place, which means where the imputation was read, heard or seen by a third person. For a newspaper, that can be any place where it circulated; for a speech, where it was delivered; for a letter, where it was received and read. For online content, publication occurs where it is accessed, which in theory can be anywhere, but courts look unfavourably at complaints filed in a distant city with no real connection to the parties, chosen to cause inconvenience.

Defamation cases against sitting or former MPs and MLAs in Delhi go to the special courts for such cases at Rouse Avenue. Other complaints go to the magistrate of the relevant district. In Noida the complaint goes to the Gautam Buddh Nagar court at Surajpur, and in Ghaziabad to the Ghaziabad district court. If the accused lives outside the court's territorial jurisdiction, the mandatory inquiry under BNSS section 225 adds time, so the complainant should be ready with witnesses from the start.

What is the time limit for filing a defamation complaint?

Three years. Under BNSS section 514, a court cannot take cognizance of an offence punishable with imprisonment of more than one year but not more than three years after three years have passed, and defamation carries up to two years. Under section 515 the period runs from the date of the offence or, where the aggrieved person did not know of it, from the date they first came to know. The relevant date for limitation is the date of filing the complaint, not the date the magistrate takes cognizance.

Each fresh publication can be a fresh offence, so a statement repeated in a later article or speech has its own limitation period. For online posts, the question of whether continued availability is a continuing publication is argued both ways; a complainant should not rely on it and should file within three years of first knowledge. Delay can be condoned where it is properly explained, but a defamation complaint filed late with no explanation is easy to defeat.

Defending a defamation complaint: what to check first

Start with the complaint and its annexures, not with the merits of what was said. Check whether publication to a third person is actually alleged and supported by a witness; whether the complainant is the person aggrieved and, for a company, whether the authorisation is on record; whether the complaint is within three years; whether the court has territorial jurisdiction; and whether the section 225 inquiry was held if you live outside the district. Any of these can end the case without touching the truth of the statement.

Then look at the exceptions. A complaint to the police, a letter to an employer, a report to a regulator or a warning to a business partner may fall within the Eighth, Ninth or Tenth Exceptions if made in good faith. A review of a restaurant, a book or a film usually falls within the Sixth. Criticism of how an official handled a public matter falls within the Second. The burden of proving an exception lies on the accused, but on a preponderance of probability, not beyond reasonable doubt.

Finally, look at intention. Section 356 requires intention to harm, or knowledge or reason to believe that harm will result. A statement made in a private conversation, overheard by chance, or a forwarded message whose content the accused did not adopt, may not meet this requirement. These arguments need evidence and are usually decided at trial, not at the summoning stage.

Can a defamation complaint be quashed by the High Court?

Yes, under BNSS section 528, but only on limited grounds. The High Court will quash where the complaint, taken at face value, does not disclose the offence: no publication, no identifiable imputation about the complainant, a complainant who is not the person aggrieved, or a summoning order passed without the inquiry the law requires. It will also quash where an exception applies so clearly on the complainant's own documents that a trial would be pointless.

Where the defence depends on proving good faith, truth or public good, the High Court usually says these are matters for trial. A revision petition before the Sessions Court against the summoning order is the other route; which is better depends on the defect. Our post on choosing between a criminal appeal and revision explains how revision works in general.

Criminal complaint or civil suit for damages?

Defamation is both a crime and a civil wrong. The two routes can run side by side, but they do different jobs.

If the urgent need is to stop a publication, the civil route with an injunction application is usually the right first step; our civil law practice page explains how civil suits run. If the aim is accountability and an apology, the criminal complaint is often more effective.

Documents for the complainant and the accused

Settling a defamation case: apology, compounding and mediation

Defamation is compoundable by the person defamed under BNSS section 359 without needing the court's permission, at any stage before judgment. In practice most cases that settle do so on an apology, sometimes published in the same medium as the original statement, together with an undertaking not to repeat it. The terms are recorded in a compromise and filed in court, and the accused is acquitted on compounding.

Delhi's district courts refer suitable cases to their mediation centres, and defamation disputes between neighbours, relatives or former business partners often settle there. An apology given in mediation is not an admission that can be used if mediation fails. For the accused, an early, well-worded apology is often the cheapest way out; for the complainant, a published apology may restore reputation more effectively than a conviction that comes years later.

What happens if the accused is convicted?

The court can impose simple imprisonment of up to two years, a fine, both, or community service under section 356(2). Most convictions in ordinary disputes end in a fine or a short sentence, and the court can release a first offender on probation. Community service is new and courts are still developing how they use it.

A conviction can be appealed to the Sessions Court, and the sentence suspended pending appeal. For elected representatives, a sentence of two years or more can carry consequences for their seat under election law, which is why such cases attract attention. For everyone else, the practical impact is often the record of conviction itself, which may matter for employment, passports and visas.

Before you file or reply to a defamation complaint

• Write down the exact words used, the date and the medium.
• Identify every person who read or heard the statement.
• Check that the complaint is within three years of the publication or knowledge.
• Confirm which court has jurisdiction and whether the accused lives outside it.
• Ask which of the ten exceptions could apply, and to which part of the statement.
• Preserve electronic material properly, with a BSA section 63 certificate.
• Consider whether a notice and apology would end the matter faster.
• If accused, prepare for the hearing before cognizance; do not ignore the notice.

How we handle defamation complaints

We act for both complainants and accused in defamation matters in Delhi NCR, and the first conversation is usually about whether a criminal complaint is the right tool at all. Sometimes a legal notice, a civil suit or a takedown request will achieve more, faster. Where a complaint has already been filed against you, the first job is to read it for the defects that can end it at the cognizance stage.

Our pages on criminal law practice and criminal cases in Delhi's courts explain how we work in the magistrates' courts. If you want an advocate to read a defamation complaint or a draft statement before it goes out, the team of Advocate B.K. Singh at B.K. Singh & Associates can look at it through our online enquiry page.