AI Structured Summary
Not yet generated for this judgment
Judgment
Pratap Singh, J.—The second accused in S.T.C. 681/93 on the file of Judicial Magistrate, Amour, has filed this petition under S.482, Cr.P.C, praying to call for the records in the above case and quash the same.
Short facts are: The respondent has filed the private complaint against one Varadarajan and this petitioner, arraying them as accused 1 and 2 for offence punishable under S.500, I.P.C. The allegations in it are briefly as follows:
The complainant is Inspector of Police (Law & Order), Ambur. He is having unblemished record. Ambiga Devi, wife of the first accused, had sent a complaint to the Additional Director General of Police (Law & Order), Madras on 21.1.93. That was forwarded to the Superintendent of Police, North Arcot Ambedkar District by the Additional Director General of Police. In turn, the Superintendent of Police forwarded it to the complainant through the Deputy Superintendent of Police for his enquiry and for taking necessary action. As directed by superiors the complainant went to Melsanakuppam on 4.3.93 for making enquiries. The first accused was not available there. While so, the second accused sent notice on 8.3.93 to the complainant and two Sub-Inspectors, said to be on the instructions of the first accused. Copies of the said notice were sent to the Chief Minister of Tamil Nadu and nine superior police officers of the complainant. This notice contains false and defamatory statements about the complainant and the two police officers. Kumar, the Sub-Inspector of Police is not the friend of Jothiraj Kumar. It is false to say that Ambiga Devi approched the complainant and the Sub-Inspector through him. The allegations in that notice, are all false. In para 1 of the notice, it is alleged that under the banner of police, all of you are misusing the powers for personal gains and not for the public cause. That instead of maintaining law and order in your place, all of you are instigating and creating troubles in my client''s family. All of you are acting without any jurisdiction and thinking that you can take the law in your own hands according to your whims and fancies''. Defamatory statements were also made in paras 4, 6 and 7 of the notice. The defamatory statements are extracted and given. They are highly defamatory and they have been made with an intention to defame and lower the complainant and the two Sub-Inspectors in the esteem of others and their superiors and these defamatory statements have caused injuries to the feelings of the complainant and lowered him in the esteem of the superiors and others. The second accused, being an advocate in his professional capacity ought not to have used these unwarranted statements, which expresses his opinion and which are perse defamatory too in utter disregard to the standards of professional conduct. The first accused has committed offence of defamation punishable under S.500, I.P.C. by causing publication of notice with defamatory statements as against the complainant. The second accused had sent the notice dated 8.3.93 with defamatory statements, which expresses his own opinion and wish in violation of rules of professional conduct and etiquette and thereby he has committed offence punishable under S.500, I.P.C. Hence the complaint.
Mr. P. Sukumar, the learned counsel appearing for the petitioner, would submit that petitioner is an advocate that he had sent a notice as per the instructions given by his client, who is the first accused herein and in the discharge of his professional work he had sent that notice containing the allegedly defamatory statements and while so, he has got no mala fides but only bona fides and hence the case would fall squarely within Exception (9) to S.499, I.P.C. He would further submit that copies of the notice were sent to the higher authorities of the complainant herein and that it would further go to prove the bona fides. Per contra, Mr. N.P. Kumar, the learned counsel appearing for the respondent, would submit that the defamatory statements in the notice sent by the petitioner herein, on behalf of the accused, do contain defamatory statements and that if he wants to take umbrage under Exception (9), he has to prove it during trial and that the proceedings cannot be quashed at the threshold.
I have carefully considered the submissions made by rival counsel. The petitioner, who is the second accused in STC. 681/93 had sent notice on behalf of the first accused. In that notice, defamatory statements are said to have been made in paras 1, 4, 5, 6 and 7. In Para 1, the allegations are as follows:
Under the banner of police, all of you are misusing the powers for personal gains and not for the public cause. That instead of maintaining law and order in your place, all of you are instigating and creating troubles in my client''s family. All of you are acting without any jurisdiction and thinking that you can take the law in your own hands according to your whims and fancies.
In Para 4 of the notice, it is alleged as follows:
My client''s wife has received a house advance amount of Rs. 15,000/- from the Madras House owner and spending that amount like water on all of you to take illegal action.
In para 5 of the notice, it is alleged as follows:
That it is none of the business of No. 1 of you to waste the public money by coming to my client''s house by police jeep for your personal gain by abusing the power beyond your scope.
No. 1 in the notice is Palani, the complainant in the private complaint. Likewise, defamatory statements are made in paras 6 of 7 of the notice. The above allegations are perse defamatory.
I shall next consider whether the petitioner can take umbrage under Exception (9) and whether on the materials available, the proceedings as against the petitioner are liable to be quashed. To consider the above aspects, certain relevant facts need bestated. The petitioner had issued a notice containing the defamatory allegations, in his capacity as advocate for the first accused. Prior to the filing of the complaint, there was exchange of notices between the parties. Notice was sent to the first accused as well as to the second accused by the complainant. The first accused Varadarajan had sent reply through his advocate on 17.4.93. In it he has stated as follows:
My client states that the notice dated 8.3.1993 issued to you by my client is only under his directions and instructions. My client emphatically states that the avernments contained in the said notice dated 8.3.1993 are true and there is no necessity for him to give false, frivolous and vexatious notice to you. My client states that he is a graduate, Ex-President, decent'', dignified, respectable and also law-abiding citizen...
Thus, it is seen that the notice sent by the second accused/petitioner herein, in his capacity as advocate for the first accused, was sent only on the instructions given by the first accused. There are no allegations of any ill-will or enmity or motive against the second accused/petitioner for sending this notice. The petitioner had also sent a reply on 12.5.93. In it he has stated that as per the instructions given by the first accused, he issued the notice in discharge of his professional duties and he has no personal animosity against the complainant and only he had discharged his duty as an advocate on the instructions of his client. Now, in these circumstances, it is to be construed whether the petitioner can be proceeded with for offence under S.500, I.P.C. in respect of the defamatory allegations made in the lawyer''s notice.
Another relevant factor is that copies of this were sent to the Chief Minister and the officials of the complainant. In M.K. Parameswara Kurup Vs. N. Krishna Pillai, , it was held that a court may presume that counsel who has signed the pleading has acted bona fide and without malice and no counsel should be called upon to answer a complaint for defarmation merely because he has signed a pleading which contains defamatory matter. If this is not the position, then no counsel can possibly discharge his duties to his client. In Upendra Nath Bagchi v. Emperor ( ILR 36 Cal 375), a Division Bench of the Calcutta High Court had held that when a pleader is charged with defamation, in respect of words spoken or written, while performing his duty as a pleader, the Court ought to presume good faith, and not hold him criminally liable, unless there is satisfactory evidence of actual malice and unless there is cogent proof that unfair advantage was taken of his position as a pleader for an indirect purpose. In the instant case before me, no malice is alleged and neither there is any allegation that unfair advantage was taken by the advocate of his position as an advocate for an indirect purpose. While so, good faith is to be presumed. In Filomeno Pereira v. Foao Lourenco Femandes (1981 Cri.L.J. 117), it was held that if serious and baseless allegations are made against the opponent a lawyer may make himself liable for prosecution but in that case it has to clearly established that he acted in bad faith or malicioulsy. The lawyer can certainly rely on Exception 9 to S.499, I.P.C. A court may presume that a lawyer who has signed the pleadings has acted bona fide and without malice. Unless such presumption is made no lawyer can possibly discharge his duties towards his clients. If a lawyer makes himself liable for prosecution every time he makes a serious allegation in a pleading under instructions of his clients, it would be impossible for him to carry on his duties. In Seshagiri Rao v. Sadulla (1937 MWN 1195), a question was put by an advocate in the course of re-cross-examination to the complainant "Is it not a fact that you took a fowl of the accused and sent it away through a boy, which was the subject-matter of the panchayat", it was held that the question was not perse defamatory and it was further held that the presumption is that it was asked under instructions and good faith. The prosecution of the advocate for defamation was quashed in that case. In Bashyam Ayyangar v. Andal Ammal (1934 MWN 481) a pleader was charged for offence of defamation under S.500, I.P.C. In that he unnecessrly in cross-examination put to the complainant, who was a witness in a criminal case, certain questions which imputed immoral character and there is no allegations that the pleader in putting the questions was actuated by any motive of private malice and was not acting in the interest of is clients it was held that the pleader is entitled to the benefit of Exception (9) to S.499, I.P.C. and the charge which imputes no ill will but merely refers to the questions as having been put unnecessarily cannot stand and that therefore the entire proceedings against the pleader was quashed. In Mir Anwarrudin v. Fathim Bai Abidin (I.L.R. 50 Mad 667), it was held that when a lawyer is acting in the course of his professional duties and is thus compelled, to put forward everything that may assist his client, good faith is to be presumed, and bad faith is not to be presumed merely because the statements is prima facie defamatory, but there must be to some independent allegation and proof of private malice from which, in the circumstances of the case, the court considers itself justified in inferring, that the statement was made, not because it was necessary in the interests of the client, but that the occasion was wantonly seized as an opportunity to vent private malice. In the instance case, there is no such allegation that the occasion was seized by the advocate as an opportunity to vent private malice and so good faith is to be presumed.
From the above rulings, the following principle emerges:
In a case where the advocate acted on behalf of his client and had made defamatory statements, on the instructions of his client it is to he presumed that he did so in good faith and he would come within Exception (9) to S.499, I.P.C. and would not be liable for offence punishable under S.500, I.P.C. in the absence of any allegation against the advocate that he was actuated by malice and that the occasion was wantonly seized as an opportunity to vent private malice and proof of the same.
In the instant case, there are no allegations of ill will or malice against the petitioner. It is seen that he sent the notice on the instructions given by his client. So it is to be presumed that he acted in good faith and made these allegations on behalf of his client and on the instructions given by him and hence he is not liable to be proceeded with for offence under S.500, I.P.C.
Mr. N.P. Kumar, the learned counsel appearing for the respondent, would submit that copies of this notice were sent to the Chief Minister and higher officials of the petitioner and that would show mala fides. On the other hand, Mr. P. Sukumar, would submit that it will show only bona fides because those authorities are the higher '' authorities of the person to whom notices were sent and certain allegations against the police officials which required action by the higher authorities were made so copies were sent to them.
In Rebacca Mandal v. Emperor (50 CWN 545), the question was whether a deliberately false imputation made at the instance of a party false to his knowledge, though made for his own protection, would be punishable or not. The learned Judges have held that it is not necessary for them to decide in that case whether a deliberately false imputation made at the instance of a party, false to his knowledge, though made for this own protection, would be punishable or not. In NGA Poona v. Emperor (AIR 1916 LB 108), the scope of Exception (8) to S.499 I.P.C. has been considered. Saukhi Gope v. Uchit Rai (AIR 1948 Pat 57) was cited by Mr. N.P. Kumar. But it is not relevant for this case.
In the result, the petition is allowed and all further proceedings against the petitioner, who is accused No. 2 in S.T.C. 681/93 on the file of Judicial Magistrate, Ambur, shall stand quashed.