The Kathmandu District Court has sentenced the then editor of Rajdhani Daily, Saroj Mishra, to four months in prison and a fine of Rs 1,000 in a defamation case. The court has also ordered editor Mishra and Rajdhani Daily to pay an additional compensation of Rs 250,000 for the damage caused to the plaintiff.

The full text of the verdict delivered by the bench of District Judge Atmadev Joshi on 25 Chaitra was made public this week. The full text states, ‘Since it is found that the defendant Saroj Mishra has committed the offence of character assassination under Section 306 (1) of the Criminal Code, 2074 BS by accusing the plaintiff based on baseless speculation and belittling his character, conduct, morality and reputation, it is hereby ordered that he shall be imprisoned for three months under Section 307 (1) of the same Act and an additional one month imprisonment and a fine of one thousand rupees under the proviso to the same section.’

This legal dispute began with a news item titled ‘Three Colonels in the Army’ published in Rajdhani Daily and its online edition on 6th Shrawan 2080 BS. Advocate Shobha Karki had filed a case in the Kathmandu District Court alleging that the news item made serious allegations against her such as visiting judges’ homes, ‘fixing’ court proceedings and earning money illegally.

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I am not aware that four months in prison and compensation have been imposed for the news published. It is unexpected to come up with the issue of imprisonment when the case received through the Press Council and even the refutation has been published. – Saroj Mishra, then editor, Rajdhani Dainik

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This imprisonment is an attack on the freedom of expression guaranteed by the constitution. Freedom of expression is a necessary condition for democracy, but it is regrettable that there is an attempt to weaken it. – Nirmala Sharma, President, Federation of Nepali Journalists

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This should not be viewed within the scope of criminal law. Only compensation should be paid in the case of insult. Nepal's legal system also says that insult should be viewed under the principle of personal damage. – Taranath Dahal, Executive Chief, Freedom Forum

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In a case registered on 15th Shrawan 2080, Karki had demanded Rs 10 million in compensation, claiming that her social and professional reputation had been tarnished. On the other hand, the Press Council of Nepal filed a complaint the day after the news was published. Following the council's instructions, Rajdhani Daily also published a denial of the news on 19th Shrawan. In the response submitted to the court, it was stated that the direct name of the plaintiff was not mentioned in the news, that journalism was done on a matter of public interest and that the denial had already been printed.

The court, however, concluded that the crime of defamation would be established under Section 306 of the Criminal Code, 2074 BS. The verdict clarified that although Karki's name was not directly mentioned in the news, a clear description was presented as 'Karki's family, a lawyer by profession and the wife of Mahendra Jung Shah', which easily reveals the identity of the person concerned among the readers.

The verdict states that the newspaper failed to present any concrete evidence, basis or official source to substantiate the allegations made by the newspaper. The court has decided to pay compensation for the damage done to Karki's social reputation and character, saying that the material was disseminated without basis and evidence, seriously damaging someone's personal conduct, morality and reputation.

'The defendant Saroj Mishra and Rajdhani Daily published a news report stating that Karki, the wife of Mahendra Jung Shah, a lawyer by profession, used to go to the judge's house, maintain a close relationship with the judge, earn money by settling cases through his wife and get a house and property, and that in order to divorce her husband, he paid her daily expenses from Mahendra Jung's ATM and settled the case and got her divorced. The defendant has not been able to present any factual source or evidence to prove that this was the plaintiff's conduct,' the full text states.

Although Karki has demanded compensation of Rs 10 million, the court has held that 'the defendants (then editor Mishra and Rajdhani Daily) can each collect compensation of Rs 250,000 from each of them'.

The court held a preliminary hearing on 12 Poush 2080 and on 13 Falgun of the same year decided to take the case to a 'full hearing', holding that the plaintiff had the legal right to contest the case. Immediately after that, the court, which had taken the statements of the witnesses, had requested the original copy of the news and the complaint file of the Press Council on 3 Jestha 2081. Broadening the scope of the investigation, on 11 Asho, an order was issued to retrieve a copy of the judgment of the military court involving Prem Shahi from the PRD Department of the Nepal Army, and after the process was not completed, on 20 Ashad 2082, a request was made to send the documents of the Press Council and the Military Special Court clearly.

After ordering the lawyers of both sides to submit written argument notes on 26 Falgun 2082, the judgment was delivered by the bench of Judge Joshi on 25 Chaitra. The full text of this judgment was authenticated only on 26 Jestha.

If you are not satisfied with the order of the district court, the legal avenue to appeal to the Patan High Court within 35 days is open. The defendants and media rights activists have said that they will go to the High Court, saying that the verdict is against the principles of criminal justice and the essence of press freedom.

Mishra, the then editor of Rajdhani, has said that it is surprising that a prison sentence has been imposed on a journalist for writing a news story. He said that he was not aware of any judicial record to date that a four-month prison sentence and compensation have been imposed on a journalist for publishing a news story. ‘No one has ever been punished to this extent,’ he said, ‘This verdict is a bit strange. It is unexpected to come up with a prison sentence when the case that came through the Press Council and the rebuttal have already been published.’

Mishra expressed his suspicion that the judge was being a bit too ‘pro-active’ and was trying to secure his future by pleasing the government.

Legal and media stakeholders have called the imprisonment of a journalist in a controversy over defamation by writing a news story a step against press freedom. Taranath Dahal, the executive director of Freedom Forum, an organization working in the field of press freedom, said that press-related disputes should not be viewed within the scope of criminal law. He said that only compensation should be paid for defamation.

Although Nepal's legal system directs us to view defamation on the principle of personal injury, Dahal says that there has been a lot of prejudice against the press in the courts recently. "Nepal's legal system also says that defamation should be viewed on the principle of personal injury. Imprisonment for defamation is objectionable," he said, "There has been a lot of prejudice against the press in the courts."