Sankardas Banerjee vs Nanda Kishore Agarwal

A.N. Banerjee, J.—The facts leading to the issuance of the present rule may be briefly stated as follows:

The complainant opposite party filed a complaint against Sm. Maneka Gandhi and Sri Kushwant Singh, Assistant Editor and Consulting Editor respectively of an English monthly ''Surya'' alleging commission of an offence u/s 292/114 of the Indian Penal Code. The learned Judicial Magistrate, Alipore, took cognizance of the offence and issued process against the aforesaid two accused persons fixing August 18, 1977, for their appearance. On the date fixed the two accused persons appeared before the learned Magistrate. The Petitioner, who is a senior Advocate of this Court, was engaged to appear on their behalf along with his juniors and to apply for bail and personal exemption u/s 205 of the Code of Criminal Procedure, of the accused persons. The lawyer of the complainant opposite party during the hearing of the aforesaid case filed an application objecting to the prayers of the said accused persons and insisted on imposing conditions on the said accused persons so that they might not leave India without prior permission of the Court. The Petitioner, while moving the application for bail and for personal exemption of the accused persons, made a statement and it is alleged that in course of his statement he characterised the prosecution as ''blackmail'' and the complainant opposite party as a ''blackmailer''. On the same date the complainant opposite party filed an application before the learned Magistrate drawing his attention to the above statement of the Petitioner. The learned Magistrate recorded an endorsement on the said application to the effect ''received long after the case was called''. Thereafter, M/s. D.D. Agarwalla and Company, Advocates, sent a letter dated September 26, 1977, calling upon the Petitioner to give a reply to the letter wherein they wanted to know whether the statement made by the Petitioner was made on the instructions of his clients. In it they also threatened legal consequences in the event of his failure to reply to the letter within seven days from the receipt of the same. The Petitioner replied to that letter through his Solicitors and Advocates, M/s Mukherji and Biswas, by a letter dated October 3, 1977. In this letter the allegations contained in the letter of M/s D.D. Agarwalla and Company were denied and it was stated that the allegations were distorted versions of what had actually taken place at the time of hearing of the case and it was further denied that the Petitioner made any defamatory imputation against the complainant opposite party. It was also pointed out in the letter that the threats communicated though the letter of D.D. Agarwalla and Company constituted a deliberate attempt to interfere with the administration of justice. Thereafter, on or about August 18, 1977, the complainant opposite party filed an application in the Court of the Sub-divisional Judicial Magistrate, Alipore, against the Petitioner and the said Sm. Maneka Gandhi and Sri Kushwant Singh alleging commission of an offence under Sections 500/114 of the Indian Penal Code. In the petition of complaint it was alleged that on the instructions of Sm. Maneka Gandhi and Sri Kushwant Singh the Petitioner had stated that the complainant filed the case only to blackmail the accused persons and as such, the said case was a blackmailing case and the complainant was a blackmailer. The learned Magistrate took cognizance of the offence and transferred the case to another Magistrate who issued process under Sections 500/114 of the Indian Penal Code against the Petitioner and the said Maneka Gandhi and Kushwant Singh directing them to appear before the Court on December 28, 1977. On receipt of the summons the Petitioner appeared before the Court of the learned Magistrate through his lawyer and filed an application for his personal exemption u/s 205 of the Code of Criminal Procedure. Thereafter, the Petitioner moved this Court and obtained the present rule. In this application the Petitioner is asking for quashing of the proceeding under Sections 500/114 of the Indian Penal Code.

The question before us is whether the learned Magistrate was justified in issuing process under Sections 500/114 of the Indian Penal Code.

We have already seen that it has been alleged in the petition of complaint that the Petitioner under instructions of Sm. Maneka Gandhi and Kushwant Singh stated that the case under Sections 292/114, Indian Penal Code, was a blackmailing case and the complainant was a blackmailer. It may be that the imputation that the case was a blackmailing case and the complainant was a blackmailer may amount to a defamatory statement coming within the mischief of Section 500, Indian Penal Code. At this state of the proceeding we cannot take into consideration whether in fact the Petitioner made such imputation. The complainant opposite party made the aforesaid allegation and led evidence in support of it. We are therefore, required to see whether the Petitioner as an Advocate of the accused persons Sm. Maneka Gandhi and Kushwant Singh could be said prima facie to have committed an offence under Sections 500/114, Indian Penal Code, in making the alleged imputation in the course of his argument and that also as stated in the complaint, was under the instructions of his clients, namely Sm. Maneka Gandhi and Kushwant Singh.

The 9th Exception of Section 499, Indian Penal Code, lays down that it is not defamation to make an imputation on the character of another provided that imputation be made in good faith for the protection of the interest of the person making out a threat to any other person or for public good. In our country a lawyer does not enjoy an absolute privilege as obtaining under the common law in England. At one time, a Full Bench of the Madras High Court went to the length of laying down that even in our country a lawyer has as much absolute privilege as obtaining in U.K. vide Sullivan v. Norton ILR 10 Mad. 28 (F.B.). But subsequently in a later Full Bench decision of the same Court in Tiruvengada Mudali Vs. Tripurasundari Ammal, . 906 it was laid down that the absolute privilege as obtaining; under the common law of England was not available to this country. Even then it is a well-settled law in our country that a lawyer conducting a case on behalf of his client enjoys certain privileges and latitudes and that the presumption will be that he has acted in good faith unless the contrary is alleged or established. In other words, a lawyer will come within the 9th Exception to Section 499, Indian Penal Code and will be presumed to have acted in good faith in the interest of protection of his client unless the contrary is alleged or established. In a Madras case 1954 Cri.L.J. 1229 Ramaswami J. not only said that a lawyer would be entitled to such a presumption but also went on to say that unless such presumption was rebutted, no complaint u/s 500, Indian Penal Code, against such lawyer should be entertained. In this connection, reference may be made to some other decisions which were cited by the learned Advocate appearing for the Petitioner, namely, the cases of P.C. Gupta v. State 75 C.W.N. 402, Upendra Nath Bagchi v. The Emperor 13 C.W.N. 340 and In re Nagarji Trikamji ILR 19 Bom. 346. We may, therefore, safely proceed on the footing that it is a well-settled law that unless it be seen that the lawyer was actuated by a malice or that in order to feed a private grudge he made certain imputations in course of his argument against the party, he cannot be said to have acted not in good faith and thereby has made himself liable for prosecution u/s 500, Indian Penal Code, even if the alleged imputations are defamatory in nature. The learned Advocate appearing for the complainant opposite party cited a number of cases to which we do not think it would be necessary to make any reference in support of his contention that the statement made by a lawyer, which is reckless and careless, can be said to have been actuated by a malice. This proposition was not disputed by the learned Advocate appearing for the Petitioner and for this reason we do not make any reference to the number of decisions referred to by the learned Advocate appearing for the complainant opposite party. In so far as the present case is concerned we do not think that it can be said, even if it be assumed that the Petitioner in course of his argument stated that the case under Sections 292/114, Indian Penal Code, against Maneka Gandhi and Kushwant Singh was a blackmailing case and the complainant was a blackmailer, that he made such statements without due care and caution. We have already seen that even in the complaint it has been stated that he made such statements under the instructions of his clients, namely Sm. Maneka Gandhi and Kushwant Singh. It has neither been alleged in the complaint nor in the evidence in support of it that in making such statements the Petitioner was actuated by any personal malice against the complainant opposite party. In fact, it is not in dispute that the Petitioner does not know the complainant opposite party personally and he could have no scope for bearing any malice or personal grudge against him. It would also be seen that even though an offence u/s 292, Indian Penal Code, was a bailable offence and it was the discretion of the Court to allow personal exemption to an accused in a case under the aforesaid section, the complainant opposite party was vehemently opposing the prayers made by the accused persons for bail and also for personal exemption u/s 205 of the Code of Criminal Procedure and was also pressing the Court to impose conditions upon the accused persons restricting their freedom of movement. If in such circumstances and if under the instructions of his clients the Petitioner was constrained to make the statements as alleged in the petition of complaint under Sections 500/114 of the Indian Penal Code, it cannot be said that he was actuated by any malice or that he was lacking in good faith in making such statements, We are, therefore, of the view that having regard to the facts and circumstances of the case and also the nature of the complaint and the evidence in support of it, it can be said that any prima facie case under Sections 500/114 of the Indian Penal Code was made out against the Petitioner and that the learned Magistrate was not justified in issuing the process under the aforesaid section against the Petitioner. In view of what we have stated above, we hold that the entire proceeding under Sections 500/114, Indian Penal Code, should be quashed even though the two other accused persons are not before us.

In the result, the rule is made absolute and the entire proceeding under Sections 500/114 of the Indian Penal Code pending in the Court of the learned Judicial Magistrate, Fifth Court, Alipore is quashed.

Borooah, J.

I agree.