GOVERNING LAW & RELEVANT SECTIONS
Primary Offence: Section 356 of BNS, 2023 (formerly Sections 499/500, IPC) — Criminal Defamation
Who May Complain: Section 222, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
Complaint Procedure: Sections 223–226, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
Digital/Social Media Overlay: Sections 66A, 69A, 79, Information Technology Act, 2000
Evidentiary Requirement: Section 63, Bharatiya Sakshya Adhiniyam (BSA), 2023 (electronic records certification)
Keywords: Criminal Defamation BNS, Defamation Complaint, Section 356 BNS
PART I — ABSTRACT / INTRODUCTION
The transition from the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973 to the Bharatiya Nyaya Sanhita, 2023 (“BNS”) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) has renumbered, but not fundamentally altered, the law of criminal defamation in India. What has changed dramatically, however, is the medium through which reputations are attacked. Character assassination once confined to whispered gossip or a printed pamphlet now travels through a viral tweet, a defamatory Instagram reel, or a coordinated troll campaign, reaching thousands of viewers within minutes. This article is written specifically for law interns and young researchers who must understand not merely the bare text of the statute, but the lived, step-by-step procedure an aggrieved person follows when filing a defamation complaint for criminal defamation BNS against an online defamer.
The scope of this analysis is confined to criminal defamation, the private complaint mechanism before a Judicial Magistrate, and the special complications that arise when the offending statement is published on a social media platform rather than in a newspaper or in speech. Civil defamation, though briefly referenced for contrast, is not the primary focus. Key terms used throughout include “imputation” (the defamatory statement itself), “intermediary” (the platform hosting the content), and “cognizance” (the formal judicial acknowledgment that an offence may have been committed, triggering further proceedings).
PART II — BACKGROUND / LEGAL FRAMEWORK
A. The Substantive Offence — Section 356, BNS
Criminal defamation is presently codified in Section 356 of the BNS, which consolidates what were previously two separate provisions, Sections 499 and 500 of the IPC, into a single section. Sub-section (1) retains the classical definition: a person defames another when, through spoken or written words, signs, or visible representations, they make or publish an imputation concerning that person with intent to harm, or with knowledge or reason to believe that the imputation will harm, that person’s reputation. The accompanying explanations extend this protection to imputations against deceased persons where the statement would harm surviving relatives, to companies and associations, to ironically phrased statements, and to imputations that lower a person’s moral, intellectual, or professional standing. Ten statutory exceptions continue to operate as complete defences, the most significant being truth published for the public good, fair comment on the conduct of public servants, and fair reporting of judicial proceedings.
The punishment prescribed under Section 356 remains simple imprisonment extending to two years, or fine, or both, with the notable addition of community service as an alternative sentencing option, reflecting the BNS’s broader philosophy of reformative punishment. The offence is non-cognizable, meaning the police cannot register an FIR or arrest without a magistrate’s order, and it is bailable, meaning the accused is entitled to bail as of right. Because the offence is non-cognizable, ordinary police-driven prosecution is unavailable, and the aggrieved person must instead approach a Magistrate directly through a private complaint.
B. Who May Complain — Section 222, BNSS
This is where the BNSS becomes central to the process. Section 222 of the BNSS (corresponding to the former Section 199 of the CrPC) provides that no court can take cognizance of any offence falling within the chapter on defamation except upon a complaint made by the person aggrieved, subject to limited exceptions for public servants and certain categories of complainants acting on behalf of another. This is a critical procedural filter: unlike most offences, a stranger or a public-spirited citizen cannot ordinarily set the criminal machinery in motion for defamation; only the person whose reputation has been harmed, or someone specifically authorised to act for them, may do so.
C. The Complaint Procedure — Sections 223–226, BNSS
Once a valid complainant approaches the appropriate Magistrate, the procedure prescribed under Sections 223 to 226 of the BNSS governs how the complaint is examined. Section 223 (replacing Section 200 of the CrPC) requires the Magistrate to examine the complainant and any witnesses present on oath, reduce the substance of that examination to writing, and have it signed by the complainant, the witnesses, and the Magistrate. A newly introduced proviso to Section 223(1), absent from the old Section 200, further requires that the accused be given a notice and an opportunity of being heard before the Magistrate takes cognizance of the offence. Section 225 permits the Magistrate to postpone the issuance of process and either conduct a personal inquiry or direct an investigation to test whether sufficient grounds exist. Section 226 empowers the Magistrate to dismiss the complaint outright, with reasons recorded in writing, if no sufficient ground for proceeding is found.
D. The Digital Overlay — Information Technology Act, 2000
Where the defamatory content is posted on social media, an additional statutory layer applies: the Information Technology Act, 2000. Section 79 of the IT Act grants intermediaries such as X (formerly Twitter), Meta platforms, and YouTube a conditional “safe harbour” from liability for third-party content, provided they do not initiate, select, or modify the content, and provided they act promptly upon receiving actual knowledge or a government or court notification of unlawful material. The Supreme Court’s decision in Shreya Singhal v. Union of India narrowed this safe harbour further, holding that intermediaries are obliged to take down content only pursuant to a court order or a notification from the appropriate government agency, and struck down the vague and overbroad Section 66A of the IT Act as unconstitutional. Consequently, a complainant seeking removal of defamatory posts, and not merely the prosecution of the individual poster, must typically obtain a specific judicial or governmental direction rather than relying on a simple private request to the platform.
E. Civil Remedy as a Parallel Track
It is worth noting that criminal prosecution under Section 356 BNS is not the aggrieved person’s only remedy. A parallel civil suit for damages, or an interim application for an injunction restraining further publication, may be filed before the appropriate civil court, and the two remedies are not mutually exclusive. In practice, many complainants pursue both tracks simultaneously: the civil suit offers a faster route to an injunction that can compel a platform or individual to take down content pending trial, while the criminal complaint carries the deterrent weight of potential imprisonment. Interns drafting a complaint should therefore always ask whether urgent injunctive relief is required, since a criminal court’s power to order interim takedown is comparatively limited, whereas a civil court exercising its equitable jurisdiction can move swiftly on a properly supported application.
PART III — MAIN ANALYSIS & CASE STUDIES
Translating this statutory framework into an actionable filing procedure requires four broad stages: evidence preservation, identification of the appropriate forum, drafting and presentation of the complaint, and navigating the pre-cognizance hearing. Each stage carries its own practical hazards, particularly where the defamer operates behind the anonymity that social media affords.
Stage 1: Evidence Preservation
Digital evidence is volatile; a defamatory post, tweet, or story can be deleted within hours. The aggrieved person should immediately capture time-stamped screenshots showing the content, the URL, the profile handle, and, where visible, engagement metrics such as likes, shares, or comments that indicate the scale of publication. Because electronic records require certification for admissibility under the Bharatiya Sakshya Adhiniyam, 2023 (the evidentiary counterpart to the Indian Evidence Act), a certificate under the section corresponding to the former Section 65B should be prepared, ideally with the assistance of a forensic expert, to ensure the screenshots and any downloaded content are treated as reliable secondary evidence before the Magistrate.
Stage 2: Choosing the Forum
A complainant has two broad routes. The first is to lodge a written complaint with the local police station under Section 173 of the BNSS or approach the cybercrime cell through the national portal, cybercrime.gov.in, although since defamation itself is non-cognizable, police action is typically limited to associated cognizable offences such as those under Sections 78 (stalking) or 79 (word, gesture, or act intended to insult the modesty of a woman) of the BNS, or provisions of the IT Act dealing with identity theft or obscenity, where applicable. The second and more direct route for pure defamation is to file a private complaint under Section 222 read with Section 223 of the BNSS before the Judicial Magistrate of First Class having territorial jurisdiction, generally the court within whose limits the complainant resides or the imputation was received and read, given the wide territorial reach of online publication.
Stage 3: Drafting and Filing the Defamation Complaint
A well-drafted defamation complaint should be presented as a formal petition addressed to the Magistrate, setting out the complainant’s credentials and locus standi as the person aggrieved, a chronological narration of the defamatory publication, verbatim reproduction of the imputation with annotated screenshots as annexures, an explanation of how the statement satisfies the ingredients of Section 356 BNS (intent or knowledge, publication, and harm to reputation), and a prayer seeking the issuance of process against the accused. Where the identity of the poster is concealed behind a pseudonymous or fake account, the complaint should additionally pray for a direction to the intermediary or the investigating agency to disclose subscriber information, since Indian courts have recognised online impersonation and anonymous harassment as independently actionable, as seen in Kalandi Charan Lenka v. State of Odisha, where a fabricated profile used to harass and defame the petitioner was treated as a serious cyber offence warranting police investigation despite the accused initially being unidentified.
Stage 4: The Pre-Cognizance Hearing and Beyond
Upon presentation, the Magistrate examines the complainant and any witnesses on oath, records the statements, and only thereafter issues notice to the proposed accused as mandated by the proviso to Section 223(1). The Karnataka High Court’s ruling in Basanagouda R. Patil v. Shivananda S. Patil clarified this sequencing precisely: the complainant and witnesses must be examined first, and only afterward should notice go out to the accused, since issuing notice prematurely undermines the safeguard the proviso was designed to create. After hearing both sides at this threshold stage, the Magistrate either dismisses the complaint under Section 226 for want of sufficient ground, recording brief reasons, or takes cognizance and issues summons to the accused, formally commencing the trial.
Judicial Precedents Shaping Online Defamation
Indian courts have steadily extended settled defamation principles into the digital context. In the country’s first recognised instance of cyber defamation, SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, the Delhi District Court (Tis Hazari Courts) granted an ex-parte injunction against a former employee who circulated derogatory emails about the company and its managing director, establishing early on that the medium of publication does not change the underlying legal analysis. In Vyakti Vikas Kendra v. Jitender Bagga, the Delhi High Court restrained further publication of derogatory blog content and treated the hosting intermediary as bound by Section 2(1)(w) and Section 79 of the IT Act. The retweeting controversy involving a sitting Chief Minister further confirmed that amplification, and not merely original authorship, can attract liability: courts have held that endorsing or forwarding a defamatory post as one’s own view can independently satisfy the ingredients of the offence. On the intermediary side, Google India Pvt. Ltd. v. Visaka Industries illustrated the limits of safe harbour on facts predating the 2009 amendment to Section 79, with the Supreme Court holding that the platform could not claim safe harbour in the strict sense once it had received specific notice of the defamatory content and failed to act; after Shreya Singhal, the operative trigger for an intermediary’s takedown obligation is now a court order or government notification rather than a mere private notice. Finally, Swami Ramdev v. Facebook Inc. resulted in the Delhi High Court directing global removal of defamatory material uploaded through a computer resource located in India, reflecting a growing judicial willingness to issue borderless takedown orders where the origin of publication is domestic.
PART IV — CRITICAL ANALYSIS & EVALUATION
The procedure described above, while textually clear, exposes several structural tensions that legal researchers must appreciate rather than gloss over. The first is the enduring conflict between Article 19(1)(a)’s guarantee of free expression and Article 21’s protection of reputation, a conflict the Supreme Court addressed in Subramanian Swamy v. Union of India by upholding the constitutional validity of criminal defamation and characterising reputation as an inseparable facet of the right to life. Critics continue to argue that the criminal route, unlike its civil counterpart, disproportionately burdens speech because even a meritless complaint can force a defendant through the anxiety and expense of a prosecution before any adjudication of falsity occurs.
Second, the pre-cognizance hearing introduced by the proviso to Section 223(1) of the BNSS, though intended to protect against frivolous complaints, has generated genuine procedural uncertainty. High Courts remain divided on the precise sequencing of the complainant’s sworn examination and the accused’s notice, as the contrasting approaches of the Karnataka High Court and the Calcutta High Court in Kaberi Dey v. Sourav Bhattacharjee demonstrate. Until the Supreme Court authoritatively settles this question, interns and practitioners must track their own jurisdiction’s High Court position closely before advising on timelines.
Third, anonymity remains the single greatest practical obstacle in social media defamation cases. Fake accounts, VPN-masked IP addresses, and offshore server hosting frequently delay or defeat identification of the true publisher, forcing complainants to rely on court-directed disclosure requests to intermediaries, a process that is neither fast nor guaranteed to succeed, particularly against foreign-headquartered platforms that resist Indian jurisdiction absent a specific treaty mechanism.
Fourth, the safe harbour regime under Section 79, though narrowed by Shreya Singhal, still shields intermediaries from proactive monitoring obligations, meaning defamatory content frequently remains accessible until a court order or governmental notification specifically demands its removal. This creates a lag between publication and remedy during which reputational harm compounds, an outcome the current notice-and-takedown structure does not adequately address for private individuals lacking the resources for urgent litigation.
Finally, there is a documented risk of misuse in the opposite direction: powerful individuals and institutions have historically used criminal defamation complaints as strategic tools to intimidate journalists, whistle-blowers, and ordinary critics commenting on matters of public interest, sometimes described as SLAPP-style litigation. A balanced procedural regime must therefore continue refining safeguards, such as the Section 223 proviso and robust exceptions for fair comment, so the law protects genuine victims of character assassination without becoming an instrument for silencing legitimate online discourse.
A further nuance concerns the standard of proof and mens rea. Because criminal defamation demands proof beyond reasonable doubt, complainants must establish not merely that a statement was hurtful but that the accused intended harm or knew, or had reason to believe, that harm would follow. Social media complicates this inquiry further: a hastily typed comment, a satirical meme, or an opinion shared without independent verification may lack the requisite intent even where it causes genuine reputational damage, and courts must carefully separate careless or exaggerated online expression from deliberate character assassination. Interns should therefore train themselves to plead intent with specificity, drawing on the tone, repetition, and context of the impugned post rather than relying solely on the fact of publication.
PART V — CONCLUSION
The migration from IPC and CrPC to BNS and BNSS has not rewritten the substance of India’s defamation law, but it has arrived precisely when the medium of defamation itself has been transformed by social media. For interns and researchers, the essential takeaway is procedural literacy: knowing that Section 356 BNS defines the wrong, that Section 222 BNSS restricts who may complain, that Sections 223 to 226 BNSS govern how a Magistrate tests the complaint before summoning an accused, and that the IT Act’s safe harbour provisions determine whether and how a platform can be compelled to act.
Looking forward, the law would benefit from a more codified, time-bound mechanism for identifying anonymous online defamers, clearer appellate guidance resolving the Section 223 sequencing debate, and stronger safeguards distinguishing fair criticism of public figures from genuine character assassination. Until such reforms materialise, careful evidence preservation, precise pleading, and a firm grasp of the interplay between BNS, BNSS, and the IT Act remain the aggrieved individual’s most reliable tools against reputational harm inflicted through the click of a button.
REFERENCES & CITATIONS
Bharatiya Nyaya Sanhita, 2023, Section 356 (India).
Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 222–226 (India).
Information Technology Act, 2000, Sections 66A, 69A, 79 (India).
Bharatiya Sakshya Adhiniyam, 2023, Section 63 (India) (electronic records certification, successor to Evidence Act Section 65B).
Ministry of Home Affairs, Government of India, Statement of Objects and Reasons, Bharatiya Nyaya Sanhita Bill, 2023.
CASE LAW CODEX (case name — citation — court — core principle — official link)
Subramanian Swamy v. Union of India — (2016) 7 SCC 221 — Supreme Court of India — Upheld constitutional validity of criminal defamation under IPC §§499–500 / BNS §356. — https://indiankanoon.org/doc/80997184/
Shreya Singhal v. Union of India — (2015) 5 SCC 1 — Supreme Court of India — Struck down IT Act §66A; read down §79 intermediary safe harbour. — https://indiankanoon.org/doc/110813550/
Basanagouda R. Patil (Yatnal) v. Shivananda S. Patil — Crl.P. No. 7526/2024, order dated 27.09.2024 — High Court of Karnataka — Fixed sequencing of complainant examination and accused’s pre-cognizance hearing under BNSS §223. — https://indiankanoon.org/doc/148891090/
Kaberi Dey v. Sourav Bhattacharjee — 2025:CHC-JP:104 — High Court at Calcutta — Diverging view on scope of pre-cognizance inquiry under BNSS §223. — https://www.verdictum.in/court-updates/high-courts/calcutta-high-court/kaberi-dey-ors-v-sourav-bhattacharjee-neutral-citation-2025chc-jp104-1585411
SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra — Suit No. 1201/2001 (New No. 65/14) — Delhi District Court (Tis Hazari Courts) — India’s first recognised cyber defamation case; ex-parte injunction against derogatory emails. — https://indiankanoon.org/doc/31110930/
Vyakti Vikas Kendra v. Jitender Bagga — CS (OS) No. 1340/2012; AIR 2012 Del 180 — High Court of Delhi — Injunction against defamatory blog content; intermediary bound under Section 2(1)(w) and Section 79 of the IT Act. — https://indiankanoon.org/doc/121103864/
Kalandi Charan Lenka v. State of Odisha — 2017 SCC OnLine Ori 435 — High Court of Orissa — Fake profile and morphed images used for online harassment treated as cyber defamation. — https://indiankanoon.org/doc/73866393/
Google India Pvt. Ltd. v. Visaka Industries — (2020) 4 SCC 162 — Supreme Court of India — On pre-2009 facts, held Google could not claim safe harbour after specific notice; post-Shreya Singhal, a court order/govt. notification is now the operative trigger. — https://indiankanoon.org/doc/97017195/
Swami Ramdev v. Facebook Inc. — CS (OS) 27/2019 — High Court of Delhi — Global takedown order for defamatory content uploaded via a computer resource located in India. — https://indiankanoon.org/doc/63056689/
Chandra Deo Singh v. Prokash Chandra Bose — AIR 1963 SC 1430 — Supreme Court of India — Defined the Magistrate’s limited role in scrutinising a complaint before summoning the accused. — https://indiankanoon.org/doc/1758785/
Author: Shashwat Mishra
Law Student