1. This criminal revision case has been, filed against the order of discharge made by the learned Sub-Divisional Magistrate of Cheyyar in C.C No. 493 of 1951 and which was refused to be interfered with by the District Magistrate of Vellore in C.R.P No. 5 of 1952.
2. The facts are: C.C No. 1647 of 1951 was filed before the Sub-Magistrate, Polur, for offences under Ss. 324 and 323, Penal Code, by Ayesha Bee, wife of Kasim Saheb, Chinnapushpagiri village, Polur Taluk, against Peerkhan Sahib, Fathima Bee and Chote Bee, all residing in Chinnapushpagiri village, Polur Taluk. It is unnecessary for us to go into the details of that case. So far as the present case is concerned, what happened was this. On this Ayesha Bee, the complainant, being examined as a prosecution witness, the accused who were defended by Mr. V.M Sundaresa Aiyar, Advocate, Vellore put questions to this witness containing ‘per se’ defamatory imputations to the following effects viz.
(a) that the complainant was in criminal and illicit sexual intimacy with one Aziz Khan, husband of accused 2 in that case;
(b) that the complainant was taken to Vellore and kept there by the said Aziz Khan in pursuance of such intimacy;
(c) that the complainant bore two children to the said Aziz Khan; and
(d) that the complainant was living in illicit sexual intimacy with the said Aziz Khan for the past ten years and upto the date of the abovesaid questioning.
3. On the other hand, it is the case for the complainant that she is the lawfully wedded wife of Kasim Saheb and has been living with her husband for the past 15 years and has borne him no less than four children alive and two dead and that she has been leading a chaste life and that the imputations were grossly defamatory. The complainant gave a lawyer's notice marked as Ex. P. 4 through her advocate Mr. Asker Ali Sahib and to this Mr. Sundaresa Aiyar has sent a reply notice which the Magistrate refused to allow to be exhibited as coming within the mischief of Section 126 of the Evidence Act. There is no dispute however that Mr. Sundaresa Aiyar put those questions on instructions from the accused and in fact this was made out in another way, viz., the testimony of the complainant. As P.W 1, she deposed:
“Such questions were asked by counsel on the instructions of the accused. The allegations were unfounded. I was dishonoured in public Court. I questioned the accused. They said they would have such questions to be put to me. I sent a notice to the advocate Sundaresa Ayyar. He gave the reply notice.”
4. The married status and the purity of the married life of this Ayesha Bee unsullied by any extra-marital adventures was proved not only through P.W 1 but also by the Khazi of Kizhambur P.W 3 and the husband of P.W 1, viz., P.W 5. The advocate for the accused was examined as P.W 4 and his evidence proceeded to a certain extent viz., his admitting the receiving of the notice given through Mr. Asker Ali Sahib and his own reply notice. Then at that stage the Sub-Divisional Magistrate has made a note:
“Defence counsel objects to the filing. Objections upheld as the notice is in the nature of disclosing instructions by counsel which is debarred under Section 126 of the Evidence Act, and as it does not appear to me that it is saved by the provisos to the section in the circumstances of the case”.
5. The examination-in-chief was not proceeded with and the lawyer got out of the box with cross-examination marked ‘nil’. In other words, the case had proceeded to the stage when a charge should have been framed and the learned Sub-Divisional Magistrate discharged the accused on the following grounds:
“These words would therefore be ‘per se’ defamatory. However it has to be observed, though the charge of defamation was based on the questions put by the counsel, there is nothing to show the precise nature and form of the questions, though, no doubt, we have the precise answers. Taking the evidence in the case, there is nothing to show that the accused instructed their counsel, P.W 4, to put these questions to P.W 1 during her cross-examination in C.C No. 1643 of 1951 on the file of the Stationary Sub-Magistrate, Polur. Where and when these instructions were given to the counsel and which of the accused gave the instructions are matters which have no place in evidence. Then again even if the accused had given the imputed instructions to put such questions to P.W 1, the counsel P.W 4 is debarred under Section 126 of the Evidence Act to disclose the instructions given to him as such. P.W 4 could not say that these questions were put by him to P.W 1 on instructions from the accused. The authority in — ‘Palaniappa Chettiar v. Emperor’, 1935 Mad WN 460 (A) is to the point.
Their Lordships observed that the accused cannot be found guilty of defamation committed through the mouth of the vakil. He should only be convicted by making the imputation to the vakil, thus publishing it, but that as that fact cannot be proved by the vakil without the consent of the complainant (S. 126, Evidence Act) the chance of getting such a conviction would be rare. This decision has been referred to in — ‘K. Appayya v. Rama Subhayya’, AIR 1950 Mad 537 (B) and followed. Their Lordships stated that when a person acted as a lawer to a party, he is debarred from disclosing the instructions received from his clients. P.W 4 has not deposed that the accused gave instructions to put such questions and he is debarred from disclosing such instructions, if any.”
6. This order of the Magistrate resolves itself into two parts viz., one of fact and one of law. In so-far as the finding of fact is concerned, the Sub-Divisional Magistrate has undoubtedly distorted the plain facts and drawn a totally unjustified inference. On the other hand, there is every thing in this case to show that it was only on instructions that these questions were put by Mr. Sundaresa Ayyar to P.W 1. In fact the presumption, with which we have to start investigation is that these questions were put on instructions and that it is only when the contrary is proved we can come to the finding that these questions were put without instructions. (‘V. Pike v. Ma Khin Thein’, AIR 1940 Rang 77 (C); — ‘Md. Taqi v. M.A Ghani’, AIR 1945 Lah 97 (D); — ‘Rex v. Gendan Lal)’, AIR 1948 All 409 (E), relying on — ‘Satish Chandra v. Ram Dayal’, AIR 1921 Cal 1 (SB) (F); — ‘In re Nagarji Trikamji’, 19 Bom 340 (G); — ‘Emperor v. Ganga Prasad’, 29 All 685 (H) and — ‘Fakir Prasad Ghose v. Kripasindhu Pal Bhuti*’, AIR 1927 Cal 303 (I)). The learned Sub-Divisional Magistrate has apparently not perceived the gross unfairness to the advocate when he writes the evidence in the case does not show that the accused instructed their counsel. Does it mean that the advocate invented the imputations himself and for no other purpose than to discredit the witness put these wholly false allegations? On the other hand, we have the evidence of P.W 1 which stood unshaken in cross-examination that the accused told her that they would have such questions put to her through their advocate in order to humiliate and intimidate her. Then the advocate himself in the box categorically admitted that the questions were put by him on instructions and his reply notice was shut out on grounds which will be shown to be erroneous.
7. The nature of the questions is such that no decent vakil would invent them without instructions. That is why I have pointed out that the hastily arrived at finding of the Sub-Divisional Magistrate was grossly unfair to a respectable member of the bar viz., that without instructions he would go out of his way to impute unchastity, a continuous course of misconduct and a couple of bastard children to a young woman appearing before him with reference to a complaint in respect of offences under Ss. 324 and 323, I.P.C (hurt). Therefore, the finding of fact is wholly Incorrect and I have not the slightest hesitation in holding that the questions were put by the advocate on behalf of the accused-clients on instructions.
8. Then, on the point of law we have to consider the two important points raised viz., the circumstances under which a lawyer and/or his accused-client would be liable to be proceeded against for defamation in respect of ‘per se’ defamatory questions put in cross-examination of prosecution witnesses.
9. “The rule of law”, as pointed out by Lord Sankey,
“is the condition of liberty. Amid the crosscurrents and shifting sands of public life, the law is like a great rock upon which a man may set his feet and be safe while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts at any rate he can get justice.”
10. For it is on the maintenance and enforcement of the Reign of Law that civilisation exists. The alternative to the Reign of Law is the life of primitive savagery.
11. This rule of law in so far as the administration of criminal justice is concerned is ensured by the fundamental concept viz., that (1) the accused who can be tried only in accordance with law and (2) who can be convicted only in accordance with law — Courts of justice are not Courts of morals — must be able to protect his own interests by all legitimate means against the accusations made against him. This can be done by the only weapon which he possesses viz., the right to cross-examine his accusers. This cross-examination will be worth nothing if questions cannot be asked to test the veracity of the witness to discover who he is and what is his position in life and shake his credit by injuring his character (S. 146, Evidence Act).
12. But unfortunately most of the accused persons are either illiterate or people unskilled in unravelling the motives, physiological limitations of the powers of observation etc., the psychological imperfections and the faulty and incoherent deductions of the witnesses. In the few cases where the accused is able to be his own lawyer and acts as one, he finds owing to several circumstances that he is illustrating once more the old English adage that “a man who is his own lawyer has got a fool for his client”. In other words, a man unpracticed in speech, unskilled in law should have the aid of one possessing skill and power of speech but professing no personal knowledge or belief of the matters in questions, and that he should be able by his counsel to say all that he could say himself given the necessary skill, is an elementary requisite for enforcing the Reign of Law. On this it follows that there should be absolute confidence between the client and his legal adviser and that this confidence should be protected.
13. The foundation of this rule embodied in Section 126 of the Evidence Act is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection. It is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of courts, and in those matters affecting rights and obligations, which form the subject-matter of all judicial proceedings. If the privilege did not exist at all every one would be thrown upon his own legal resources. Deprived of all professional assistance, a man would not venture to consult any skilled person, or would only dare to tell his counsel half his case. (Per Brougham L.C, in — ‘Greenough v. Gaskell’, (1883) 1 Myl & K 98 at p. 103 (J)).
14. It is absolutely necessary that a man in order to proscute his rights or to defend himself from an improper claim to have recourse to the assistance of professional lawyers and it being so absolutely necessary it is equally necessary to use the-vulgar phrase, that he should be able to make a clean breast of it to the gentleman and whom he-consults with a view to the prosecution of his claim or the substantiating his defence; that he should be able to place unrestricted and unbounded confidence in the professional agent and that, the communications he so makes to him should be-kept secret unless with his consent (for it is his-privilege and not the privilege of the confidential agent) that he should be enabled properly to conduct his litigation. That is the meaning of the rule embodied in Section 126 of the Evidence Act (Per Jessel M.R in — ‘Anderson v. Bank’, (1876) 2 Ch D 644 at p. 649 (K); per Brougham L.C in — ‘Bolton v. Corporation of Liverpool’, (1831-33) 1. Myl & K 88 (D). The rigid enforcement of this-rule no doubt occasionally operates to the exclusion of truth. But as pointed by Knight Bruce L.J in — ‘Pearse v. Pearse’, (1846) 16 LJ Ch 153 (M):
“Truth, like all other good things, may be loved unwisely,—may be pursued too keenly, — may cost too much. And surely the meanness and the mischief of prying into a man's confidential consultations with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, suspicion, and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself”
(Taylor on Evidence Ss. 911 to 913; Best on Evidence, S. 581; Roscoe on Criminal Evidence 133, to 135; Stephan's Digest Art. 115 and Art. 116; Phipson's Law of Evidence, p. 182 (Book 2); Wigmore on Evidence, S. 2292; and Sirkar on Evidence, page 1206 (Seventh Edition)).
15. Thus, we arrive at the position that an accused or a party to a proceeding to protect his own interest is able to test the evidence of a witness appearing against him by cross-examination as to credit etc. through an advocate and that the intercourse between him and that advocate is protected unless expressly waived by the client.
16. This position has not always been the case and it would be interesting at this stage to trace the history of advocacy in our country albeit briefly owing to the limitation of space.
17. The best exposition of advocacy in Hindu India is to be found in Radha Kumud Mookerjee Endowment Lectures, 1945, on the Hindu Judicial System, delivered by Sir S. Varadachariar, Kt., Judge, Federal Court, and published by the M.L.J, Office for the Lucknow University:
“It is not possible to say anything definite as to the existence of a legal profession in Ancient. India (See a discussion in — ‘19 M.L.J, pp. 15 et seq’ (Journal)). Mr. Jayaswal thinks that professional lawyers ought to have existed from the days of Manu or at least from the first Century, A.D (M. & Y., pp. 288–292). I find it difficult to interpret the reference to ‘Vipra’ in Manu 8, 169, as a reference to a ‘Lawyer Brahmin’. The commentaries on this verse lend no-support to such a reading. The passages in Narada (122) and Katyayana (90 to 95) seem rather to refer to Agents than to Advocates or pleaders as we know them, because the persons representing are declared to be “Parties to the litigation with the difference however that the success or defeat is that of the party represented”.
(cf the Cognitores and the Procuratores of the Roman Law; Buckland, p. 404). Such a declaration would be uncalled for if the passages were intended to refer to a professional class whose profession itself was to represent others. I may however add that Mr. Kane reads these passages of Katyayana as referring to recognised Agents and Pleaders. (See his Introduction to Katyayana, p. xv).
18. The succeeding passages in Katyayana place the ‘Niyukta’ in the same category as Servants, Agents, Disciples and Relatives (of the party). This seems to me to militate against that expression being read as referring to a professional class. The passage in the Sukraniti is perhaps more significant, because it fixes the remuneration payable to the ‘representative’ and declares him liable to punishment for receiving anything more; but it is noteworthy that it provides for the appointment of a ‘representative’ not only on the ground of the party's ignorance of Vyavahara but also on the ground of his being otherwise busy. (Anya Karya Kulena). The Arthasastra makes no reference to a legal profession. Mr. Nilakanta Sastriar in his book on the Cholas (Vol. II, p. 260) states that there appears no trace of the employment of advocates in the days of Chola Administration. In the laws of the Ancient Persians (translated by Mr. Bulsara), it is stated that in ancient Babylonia the institution of lawyers did not exist, but that by the time of the book which Mr. Bulsara was translating i.e, about the 6th or 7th century A.D, lawyers were in existence. (See pp. 34 and 612). In the Athens of Pericles, there was no Bench of trained Judges or Bar of trained lawyers. A party was not allowed to have his case presented by an Advocate, but there was nothing to prevent his learning by heart and repeating a speech prepared for him by a professional speech-writer (Logographer). The aim of the speech was not so much to inform the Court about the relevant matters, as to excite the emotions of the large audience and make it give its verdict on the impulse of the moment. There were in Athens a large number of Logographers who wrote out speeches for parties and many of them made large incomes but the profession was regarded with little respect by enlightened Athenians. (See ‘Trial of Socrates’ by Coleman Phillipson). In Rome, there no doubt existed a class of persons (Jurisprudents) who made law their specialty; but they were not professional lawyers in our sense. They received no remuneration for their services. They were public men who only devoted some of their time to law as part of their public career. Advocacy proper was not the business of the Jurisconsult but of the Orator (cal. pp. 91 to 94). The notion of law does not include of necessity the existence of a distinct profession of lawyers whether as Judges or as Advocates. ‘There cannot well be a science of law without such a profession but justice can be administered according to settled rules by persons taken from the general body of citizens. In England there was no definite legal profession till more than a century after the Norman Conquest’. (P. & M. Intro, p. xxvii).
19. Similarly, regarding lawyers in Muslim India we have no detailed and reliable account and the utmost learning and sympathetic consideration of the ‘Administration of Justice in Medieval India’ could evolve nothing more than the following sketch by Mr. M.B Ahmad I.C.S:
“Their duties are mentioned in the two Muslim Indian Codes, Fiqh-c-Firoz Shahi and Fatawa-e-Alamgiri. They were known as Vakils, a term which still applies to them. Marvardi speaks of the profession and considers expert knowledge of the law necessary both for the practice of law and for the acting as Qazi (J.R.A.S 1910, p. 764). Moreland thinks that the profession did not exist but contemporary authorities have referred to Vakils. Ibn Batuta who was himself a Judge in the time of Muhammad Tughlaq (1315-51) speaks of them (p. 194, Travels-Lee). Badaoni refers to Rae Arzani, a Hindu Vakil of Khan Zaman (p. 97, Vol. II and p. 76, Vol. II). Sir Thomas Roe refers to his ‘Solicitor’ who perused his plaint (Roe's Embassy, Foster, p. 260). The petition of the East India Company was presented by lawyers on the original side of the Emperor's Court. * * * * A high standard was expected of Vakils — “The practice of the Law” said Omar, the second Caliph of Islam, ‘was to be in good faith and pursued in sincerity as calling’.
Vakils had a right of audience in Courts and were attached to the staff of every King and his sons. One Vakil was given the title of ‘Vakalat Khan’ in the time of Bahadur Shah (1707-12) (vide Bahadur Shah Mamah MS. K.C.C) for his successful advocacy.
A client could withdraw the powers of his vakil. During the reigns of Shahajahan and Aurangazeb, lawyers were appointed ta defend civil suits against the State and to assist poor litigants with free legal advice. They were, as I have mentioned, in the previous chapter, known as Vakil-e-Sharai (Khafi Khan 2, p. 249). The vakils had to file their powers of attorney (Vakalat Namah) in all cases (see Br. Mus. Or. 2011) and even today the form in which the power is filed in Court is more or less the same.
Remuneration was paid by the State to the Vakil-e-sharai at the rate of Re one a day (Mirat Supp p. 149) but it is not clear what fees were charged by other Vakils from their clients. The order of Aurangzeb directing the State vakils to give free advice to paupers suggests that the practice of accepting ‘Mahentanah’ was in vogue. No receipts of payments have come to my notice, and the decrees in Baqiat do not mention the fees of the Vakils.
There were no Bar Associations as the medieval Government was not based on modern democratic ideas, and there was no demand for such public organisations.
As recorded elsewhere, Vakils could be appointed Qazis in the districts where they were practising. A perusal of judgments in Baqiat shows that Qazi Quim Ali was a local lawyer and officiated as Qazi for some time (p. 22). After he left the Bench he again appeared as a lawyer in — ‘Dunia Murai v. Mir Shahamat’, (Ali Baqiat, p. 25) for the Defendant.
It should, however, be borne in mind that the word ‘vakil’ was also a general term applied in those days to Agents (I.O.L MS. 370) Shahjahan's ‘diplomatic’ representative at the Court of Aurangzeb was referred to as ‘Vakil-e-An Hazrat’, ‘Waqua’ at-e-Alamgir MS. 1640 (Br. Mus f. 39). At another place Suj an Rae in his Khulasat ut Tawarikh has used the word Vakil as Saltanat or Vakil-e-Mutalaq for the Prime Minister.”
20. Similarly, regarding advocacy we have very little tangible information both in the Vijayanagar empire and in the Maratha administration probably due to its little scope in the authoritarian regime of the former and arbitral system in vogue in the latter. (See Saletore, Social and Political Life in Vijayanagar Empire; N. Venkatramanayya's Studies in the history of the Third dynasty of Vijanagar; Maha Lingam's Administration and social life under Vijayanagar; C.K Srinivasan, Maratha Rule in the Carnatic and other well known works on Maharatta administration by Grant Duff, Kincaid etc.).
21. Then coming to the British Times, the Madras Bar is the oldest in India. First the merchant came and built his factory in 1639. The soldier then came to guard and protect it. With him the Doctor came to attend to the sick and wounded and the Chaplain to remind them of their religion. But the lawyer came at a later stage and that too not from reputable or skilled sources owing to the fact that in the beginning there were grave doubts and uncertainties about the Company's right to maintain courts and administer justice over non-English inhabitants. In fact under the Charter of 1661 which gave the president and the Council of Fort St. George some kind of judicial authority over the English inhabitants, they constituted themselves a judicial tribunal to dispense justice. They had Consultation Days on which they attended to their administrative work and the Day of Administering Justice on which they attended to judicial work. They set apart two days in the week for the latter purpose and also kept a diary of their proceedings in English and Portugese.
22. The first agent who appears to have had some taste for law was Sir William Laughorne. When he was near his imbarquing (sic: embarking?) the Minutes of Consultation dated 19-9-1677, take stock of all his law-books and it was then resolved that the Agent do make payment out of the Honourable Company's cash for the same £5-15-6 (Rs. 51-8-0) to him for that library of law-books judged most useful for this place. The list is interesting. This court constituted by the Agent and Council was presided by Judges who had the advantage of local knowledge and had commonsense but painfully lacking in legal knowledge of which they were fully aware. Therefore, they started encouraging legal practitioners and in Consultation dated 18-3-1678 a regular table of fees was drawn up. It is interesting to remember that the Attorney's fees for the plaintiff for drawing declaration and pleading was 14 ‘fanams’ and the like fees for the defendant was 21 ‘fanams’. This is the first reference to the Bar in the Company's records of Fort St. George and some more years passed before the practitioners appeared to act and plead.
23. By charter dated 9-8-1683 the Governor and Council were empowered to establish Admiralty Courts to try cases against interlopers, forfeiture of ships and the like. This Admiralty Court had a chequered career and gave no scope for legal talents. In the meanwhile the responsibilities of the company became ever increasingly larger and larger and offences other than piracy had to be taken cognizance of. In 1726 came the Letters Patent establishing regular civil and criminal courts of Madras. The Civil Court was called the Mayor's court composed of a Mayor and nine Aldermen. From their decision, appeal lay to the Governor-in-Council or where the subject of dispute exceeded 1000 pagodas in value to the King-in-Council. A criminal court was constituted at the same time by appointing the Governor and five senior members of Council as Justices of the Peace and directing them to hold quarter sessions for trial of crimes, treason excepted, as much as possible after the manner in which crimes were heard and punished in England. Therefore, the pattern of Grand Juries and Petty Juries and the application of the ferocious Penal Code of England mitigated by local customs and sentiments as much as possible, followed.
24. In addition there were caste Panchayats to dispose of all caste disputes and other disputes submitted to by the parties and Military Courts with reference to military offences. It was in this atmosphere that a group of Attorneys plied their trade. In regard to these Attorneys most of them were a doubtful lot though some of them like Popham, Bromley and Spencer made their mark. The general description of these attorneys is given by Lockyer at the beginning of the century.
“Lawyers are a plenty and as knowing as can be expected from broken linen drapers and other cracked tradesmen who seek their fortunes here by their wits.”
25. It was only in course of time when the court of the Governor-in-Council and the Mayor's courts and the native courts came to be replaced by regular civil and criminal courts and the emoluments of the bar came to be considerable — by 1835 Hon'ble Mr. John Shore in his Notes on Indian Affairs Vol. 2 was able to write that in one mofussal court counsel made upto Rs. 210 p.m and in the Sudder court some as much as Rs. 1000 p.m — a rupee then being many times worth its value now — that these doubtful and unqualified characters practising as Attorneys came to be replaced by men of learning and responsibility educated in Law Colleges possessing prescribed qualifications subject to elaborate rules of professional conduct and having Bar Associations of their own.
26. This is not the place for tracing the history of these courts viz., institutions of Diwani Adalat, Fauzdari Adalat, the Regulating Act constituting the Supreme Court of Judicature in Bengal, the Reforms of Lord Cornwallis, re-constitution of the Adalat courts under the Marquis of Wellesley and the constitution of the ordinary courts of justice in its present form by Lord William Bentinck and the Indian High Court Act of 1862. Those desirous of doing so in so far as Madras is concerned may consult Colonel Love's Vestiges of old Madras. Forster's Factories in India, Mrs. Frank Penny Fort Saint George Madras Fawcett. The first century of British Justice in India and Cowell's History and constitution of the courts and Legislative Authorities in India (T.L.L 1872) I have elsewhere summarised them in Part I of Vol. 1 of my Magisterial and Police guide” (M.L.J publication). The Bar required Regulations and Acts for placing them on a firm basis.
27. In regard to Regulations, the most important are Regulation 27 of 1814 and Regulation 2 of 1833. It is interesting to note that Regulation 27 of 1814 compelled every vakil to take an oath regarding his duties before he commenced his practice. The fees of pleaders had to be deposited in court and security given for payment of the adversary's pleaders before the trial started and vakils were required to be careful in accepting vakalatnamahs and to examine and sign pleadings before filing them and pleaders were made liable for damages which the clients might sustain by breach of law on the part of the pleaders and the client could withdraw the vakalat at any stage of the case in case of his pleader's misconduct by application made to the court and if the pleaders were unable to attend court, they had to notify the same to the court in writing and otherwise they were made liable to pay a fine and vakils were prohibited from becoming law-agents or Muktears and a pleader was liable to be dismissed for giving an illegal or dishonest opinion and for incompetency.
28. Then we have a series of Acts culminating in the Legal Practitioners Ace 28 of 1879 amended by the Indian Bar Councils Act 38 of 1926, placing the entire bar on a sound basis and regulating their relationship with the courts on the one hand and the clientele on the other.
29. Thus we arrive at the present position set out by an eminent lawyer the late Sir P.S Sivaswami Iyer, in his foreword to Justice Sundara Iyer's Professional Ethics:
“Detractors of the legal profession have never been wanting in any time or country. The art. of making the worse appear the better reason is one which to many a lay mind appears incompatible with a regard for truth and justice. Critics of this kind overlook the fact that the legal profession like every other has its own code of ethics and that the ethics of the Bar are the necessary result of the system of administration of justice in England and in all the countries which have borrowed their system from England. The theory underlying the English system is that the best means of finding out the truth between two contending parties is to hear the best that can be said for each side by a skilful advocate and entrust the decision to an impartial judge capable of weighing the arguments on both sides. Necessarily the system involves a division of functions between the judge and the advocate.
It is the business and the duty of the advocate to make the best of his client's case and it is the province of the court to weigh the contentions in the balance and determine on which side the right lies. Whether this system has invariably worked for justice or not, there can be no manner of doubt that it does so in the large majority of cases and that it is essentially sound. It is needless to enter on any justification of the system and to dwell on the need for the legal profession as an indispensable aid to the administration of justice or on the futility of expecting litigants to engage advocates to point out the weaknesses in their own cases or the strength of their opponent's cases. While it is the duty of the advocate to make the best of his client's case, it is his duty to conform to the rules of the game, which have been laid down by the traditions of the English Bar, traditions inspired by an eminent love of fair play and by a deep sense of the duty of the profession to assist in the administration of justice.”
30. Having set out the long process by which we arrive at the position that it is a fundamental right of the accused under Section 340(1) of the Cr PC and which has been reproduced in Art. 22(1) of the Indian Constitution that every accused has the right to consult and to be defended by a legal practitioner of his own choice to protect his interests by legitimate cross-examination of the witnesses appearing against him and for that purpose put questions to those witnesses which he the client would have put if he had the necessary professional skill, we have got to see what is the extent of the privilege of the party and the advocate in putting ‘per se’ defamatory questions (— ‘In Re Ramaswami Padayachi’, AIR 1916 Mad 933 (N); — ‘In re Murugesa Naidu’, AIR 1916 Mad 142 (O); — ‘Pita v. Emperor’, AIR 1925 All 285 (P); — ‘Sher Singh v. Emperor’, AIR 1916 Lah 445(1) (Q)).
31. Let us take the party accused first. The Ninth Exception to S. 499, I.P.C affords protection when a defamatory statement is made in good faith for the protection of the interests of the person making it. The Exception covers not only such allegations of fact as could be proved true but also expressions of opinion and personal inferences: — ‘Jaffar v. Emperor’, 11 Cri LJ 588 (Sind) (R). But in order to come within this exception the imputation must have been made or published by the accused (a) relevantly, (b) for the protection of his interest and (c) in good faith; — ‘Queen Empress v. State’, 15 Bom 351 (S); — ‘Kewala Nandgir v. Crown’, 317 Pun LR Cr 1913 (T) and — ‘Muhammad Gul v. Fazley Karim’, AIR 1929 Cal 346 (U). In good faith, an essential ingredient is honesty of purpose. The accused must firstly, honestly believe his imputation to be true, and, secondly, he must honestly make it from a sense of duty to himself. He must not exaggerate or say unnecessary things. He must not make his duty the cover for spreading the libel. The question for enquiry in such cases will be whether the accused had reasonable grounds for believing the imputations to be true and for believing that it was necessary for his safety to give publicity to them.
32. The leading cases on the requisites of good faith are: — ‘Subrahmaniah v. Narasinga Rao’, 4 Mys LJ 13 (V); — ‘In the matter of Shibo Prosad Pandah’, 4 Cal 124 (W), cited with approval in — ‘Promotho Nath Mukhopadhya… v. King-Emperor….’, AIR 1923 Cal 470 (X) and followed in — ‘AIR 1929 Cal 346 (U); — ‘Empress of India v. Ramanand’, 3 All 664 (Y); — ‘Abdul Hakim v. Tej Chander’, 3 All 815 (Z) and — ‘Supdt. & Remembrancer of Legal Affairs, Bengal v. Purna Chandra’, AIR 1924 Cal 611 (Z1). Of course in determining whether the accused should or should not have placed implicit reliance on the credibility of his source of information courts should not naturally insist upon exacting standards but should take into account the mental attitude of the person, his prejudices and predilections and the surroundings in which he was placed. These indicate the scope of the privilege of an accused or party in making or publishing through his lawyer or by himself — it makes no difference whatsoever — ‘per se’ defamatory imputations.
33. In other words, the privilege conferred upon an accused or party under the ninth Exception to S. 499, I.P.C is a qualified privilege and is not an absolute privilege as under the Common Law of England. On grounds of public policy attempts were made now and then by Judges with strong predilections for engrafting English Common Law on purely Indian problems but it is now settled law that the court cannot engraft in Exceptions to section 499 I.P.C the doctrine derived from the Common Law of England or based on public policy. It has been so held in — ‘AIR 1921 Cal 1 (SB) (F), by a Special Bench of the Calcutta High Court consisting of five Judges in which Mookerjee, A.C.J has exhaustively reviewed the law on the subject. But the cases on this point were by no means consistent since a contrary view was currently entertained by the Madras High Court in, — ‘In re Venkata Reddi’, 36 Mad 216 (Z2); — ‘Raman Nayar v. Subramania Iyer’, 17 Mad 87 (Z3); — ‘Nadu Gounden v. Madu Gounden’, 1 Weir 589 (Z4); — ‘Pundmarazu v. Venkatramana’, 19 MLJ 217 (Z5); — ‘In re Alraza Naidu’, 30 Mad 222 (Z6); — ‘Queen Empress v. Govinda Pillai’, 16 Mad 235 (Z7); — ‘Manjayya v. Sesha Chetty’, 11 Mad 477 (Z8); — ‘Sullivan v. Norton’, 10 Mad 28 (FB) (Z9).
34. But later the Full Bench case in — “Tiruvengada v. Tripurasundari’, AIR 1926 Mad 906 (FB) (Z10), has held that on matters specifically dealt with by the Penal Code, such as this, the English Common Law is not applicable. The Allahabad High Court has uniformly been holding that the liability to prosecution for defamation must always be determined with reference to this section: — ‘3 All 815 (Z); — Tsuri Parsad v. Umrao Singh’, 22 All 234 (Z11); — ‘29 All 685 (H) and — ‘Tilkanchan v. Emperor’, 11 Cri LJ 594 (All) (Z12). The Bombay authorities which were generally in favour of holding such statements as absolutely privileged have been departed from in the later Full Bench case in — ‘Shantabai v. Umrao’, AIR 1926 Bom 141 (Z13). The Rangoon High Court in — ‘Medonnell v. Emperor’, AIR 1925 Rang 345 (Z14), the Punjab High Court in — ‘Phundi Ram v. Emperor’, 12 Cri LJ 193 (Lah) (Z15) and the Sind Court in — ‘Hoondraj v. Emperor’, AIR 1921 Sind 92 (Z16), held the same view as the Calcutta High Court. Therefore, as pointed out by me above in order to come within the ninth Exception to S. 499, I.P.C, the accused must show that the imputation was made relevantly, for the protection of his interest and in good faith.
35. The liability of an advocate charged with defamation in respect of words spoken or written in the performance of his professional duty depends on the provisions of this section; the court will presume good faith unless there is cogent proof to the contrary: — ‘Nirsu Narayan Singh v. King-Emperor*’, AIR 1926 Pat 499 (Z17); — ‘M. Banerjee v. Anukul Chandra’, AIR 1927 Cal 823 (Z18) and — ‘Anwarruddin v. Fathim Bai’, AIR 1927 Mad 1379 (Z19). The privilege is not absolute but qualified, but the burden is cast upon the prosecution to prove absence of good faith: In — ‘19 Bom 340 (G); — ‘Nikunji v. Harendra Chand’, AIR 1914 Cal 255(1) (Z20) and — ‘Upendra Nath v. F.A Savi’, 9 Cal LJ 259 (Z21). So far as the English Law is concerned, it is settled that Advocates have absolute and unqualified privilege in respect of questions asked in cross-examination: — ‘10 Mad 28 (FB) (Z9)’; —‘36 Mad 216 (Z2)’; —‘36 Cal 375 (Z21)’ and — ‘AIR 1914 Cal 255(1) (Z20).
36. But Advocates in India, including in the term vakils and pleaders, have no absolute privilege on the prosecution for defamation: AIR 1927 Cal 823 (Z18). There is no basis for the doctrine that the Legislature in enacting the Penal Code, intended to leave untouched the provisions of the English Common Law on the question of defamation. This section is meant to be universal in its application. Consequently, for purposes of fixing criminal liability, the English Law of absolute privilege does not apply in this country to statements of advocates in judicial proceedings. The contrary view taken in the following cases is no longer tenable: 10 Mad 28 (FB) (Z9) : 36 Mad 216 (Z2) and — ‘Jagat Mohan v. Kalipado’, AIR 1922 Pat 104 (Z22). When a complaint is made against an Advocate or Legal Practitioner for defamation in respect of a statement made in the course of a judicial proceeding, it is the duty of the Court to presume that the I statement was made on instruction and in good faith and for the protection of his client's interest, and that unless circumstances clearly show that the statement complained of as defamatory was made wantonly or from malicious or private motive, the complaint should not be entertained: AIR 1925 Rang 345 (Z14) : AIR 1927 Mad 379 (Z19) and AIR 1927 Cal 823 (Z18).
37. 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 statement is ‘prima facie’ defamatory; but there must be 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. Even the presence of malice will not override the presumption of good faith, when the statement was obviously necessary in the interests of the client, and where the lawyer could not omit to make it without gravely imperilling the interests of his client, and would in fact not be discharging his duty to his client unless he made it.
38. Under Exception 9 it is not defamation to make an imputation on the character of a witness in good faith, and for the protection of the client. The presumption therefore is that a question asked in cross-examination, making such an imputation affords no ground, ordinarily, for a criminal prosecution. It is the duty of the Court, when a complaint is filed against an advocate, ordinarily to presume that the remarks or questions objected to were made on instructions and in good faith. There may be circumstances showing that the remark was made, or the question put, wantonly, or from malice or private motive, but the greatest care should be taken to enquire into the circumstances and an opportunity should be given to the Advocate to offer an explanation before summons is issued: AIR 1927 Cal 823 (Z18) : AIR 1914 Cal 255(1) (Z20); — ‘Nazir Ahmad v. Jogesh Chandra’, 29 Cri LJ 889 (Cal) (Z23) : AIR 1927 Mad 379 (Z19); and AIR 1925 Rang 345 (Z14).
39. At the same time while Advocates have their privileges, they have also responsibilities, and they ought not to abuse their privileges. An Advocate should exercise his own discretion before putting an offensive question: AIR 1927 Cal 823 (Z18). A pleader must use a certain amount of common sense and caution in asking defamatory questions to witnesses. If he puts defamatory questions to a witness with utter recklessness and without seeking whether there is any truth in them with a view to injure the reputation of the witness publicly rather than for the proper conduct of his case, he acts in bad faith and is not entitled to claim privilege; — ‘Fakir Prasad v. Kripa Sindhu’, AIR 1927 Cal 303 (Z24).
40. Having set out the rights and limitations of an accused and his advocate in regard to questions ‘per se defamatory’ put to witnesses, what are the remedies open to such a witness when the accused and his advocate exceed and abuse their privilege, and disentitle themselves to the protection afforded under the ninth Exception to S. 499, I.P C?
41. The remedies contemplated by the law are three-fold viz.: (a) protection by court; (b) self-help in the shape of setting the criminal law in motion or (c) filing a suit for damages. The extensive powers which have been granted to the court for protecting witnesses from questions I not lawful in cross-examination are set out in Ss. 146 to 153, Evidence Act. The questions lawful are set out in S. 146; this does not mean I that a witness may be asked questions on irrelevant topics for the mere purpose of contradicting him or of proving contradictory statements. For, unless in the case of the Exceptions mentioned in S. 153, his answers to questions tending to shake his credit cannot be contradicted; nor by S. 155, can former contradictory statements be proved, unless that part of the witnesses's evidence, which they contradict, was itself liable to be contradicted.
42. Sections 147 and 148 protect witnesses against improper questions. The court has the power either of prohibiting questions under this S. 148, and, if the question be allowed, of drawing or not drawing an inference from a witness's refusal to answer. The exclusions provided in sub-ss. (2) and (3) in S. 148 and in Ss. 151 and 152 indicate with more distinctness than is to be found in the English Law, the principles on which the court should proceed in protecting witnesses from reckless and unjustifiable interrogation. A witness is not to have his whole past life raked up and dragged into publicity merely because he comes forward in obedience to the law to give evidence in Court; so serious a private inconvenience can be justified only be a real necessity; and it is not so justified when either the imputation, if true, would not affect the witness's credibility, or when the injury to the witness's character is very serious, while the importance of the evidence very small.
43. A woman who in some question of petty quarrel is asked, “Did you not, twenty years ago, have an illegitimate child?” has a right to be protected on the ground, first, that if she had, it does not affect her truthfulness; and second, that it is not worthwhile to endanger her reputation for so trifling a cause. Section 149 deals with questions not to be asked without reasonable grounds and the illustrations thereto are very important. They show the scope of the reasonable grounds which justify such questions and ought to guide legal practitioners of our courts. Section 150 has already been referred to and Ss. 151 and 152 empower a court to forbid indecent and scandalous questions and questions intended to insult or annoy or needlessly offensive in form. The court has got ample powers not only to prevent the putting of such questions which if answered or unanswered could have brought about the mischief which was intended to be created but also hand up the offending practitioner to the High Court and ether appropriate authorities for disciplinary action.
44. It is unfortunate however that in this country owing very often, to timidity of courts and a desire not to become unpopular with the bar, cross-examination is allowed to be carried on to the extents which can only be described as scandalous with the result that courts are avoided by respectable people and the administration of justice suffers thereby and the Bar gets into greater and greater disrepute and become unpopular with the public and the Judges become objects of ‘contempt: (See the opinions of eminent Indian lawyers — Mahatmaji, Pandit Motilal Nehru, President Rajendra Prasad collected in my Magistrial and Police Guide, Vol. I). It is the duty of the court to see that not only such questions should not be answered but that they ‘should not be asked; for the moment such a question is asked half the mischief is done though no answer is compelled’ There are therefore to be some checks on the putting of such questions: and a sufficient check would probably be imposed if the Judges not only refuse to compel answers but actively discountenance the putting of such questions.
45. There is however one limitation in the exercise of this power by courts because first of all it is not desirable that the court should be interposing frequently and asking the advocate to explain the line of his defence. This will force the hand of the advocate to prematurely disclosing his object in putting the questions and this would put the witness on guard and the effectiveness of the cross-examination will be completely destroyed: — ‘Harnam Singh v. Emperor’, AIR 1931 Sind 38 (Z25); — ‘Abbas Ali v. Emperor’, AIR 1933 Lah 667 (Z26). We must not forget that in many cases as pointed out by Lord Birkenhead
“the issues are of such a nature that severe and even very wounding cross-examination is required. Justice in such cases could not be elucidated without the most searching offensive and exasperating cross-examination” (Law Life and Letters, Vol. I, 242)”.
46. Because as pointed out in our Dharma Sastras the deceit underlying a case has got to be extracted as a physician takes out from the body an iron dart by means of surgical instruments. (P.V Kane ‘History of the Dharmasastras’ Vol. 3, p. 271).
47. In this connection, it must be stated that the offensive cross-examination and insulting of the witness which used to be the fashion in the Old Bailey and in our Magisterial Courts has been fast disappearing. Take England. Here, for an example is an Attorney-General Coke, the Great Coke — not two hundred years ago addressing a prisoner about to give evidence
“Thou art. an odious fellow, thy name is hateful to all the realm of England for thy pride. I will now make it appear to the world that there never lived a viler viper upon the face of the earth than thou.” (Macdonnel Light Side of the Law — ‘In Court’, p. 198).
48. In two noted passages of fiction such abuse of cross-examination has been satirized — Dickens Pickwick Papers, Chapter 24, Anthony Trollope ‘The Three Clerks’, Chapter 40*; such counsel are sometimes called ‘Forensic bullers’. The bullying attorney is graphically portrayed by Dickens in his ‘Great Expectations' in Mr. Jaggers. I am tempted to extract two lines:
“Mr. Jaggers had a woman under examination or cross-examination — I don't know which — and was striking her and the Bench and everybody with awe. If anybody whichsoever degree said a word that he did not approve of, he instantly required it to have it ‘taken down’. If anybody would not make an admission he said, ‘I will have it out of you’ and if anybody made an admission he said ‘now I have got you’. The Magistrates shivered and thieves and thief-takers hung in dread rapture on his words etc.”
49. In India Mr. P.W Dillon, Bar-at-law in his ‘From an Indian Bar Room’ gives the following pen-picture of a Magistrate's Court-hall:
“At first you are able to see little of the pleader and the witness owing to the dense crowd between. At intervals, however, you glimpse these two principal actors on the scene. You get to understand that the pleader wants an answer to his question — ‘Yes or no’. He beseeches the witness in a voice raised high and cracked with emotion, to give him what he would have. But this the witness has no intention of doing. He rambles off into a story or feigns inability to understand or sulks. The pleader grows more and more agitated. He bawls and bangs the bar table. Then the pleader on the other side interposes, the witness begins to talk back at the examining pleader, the Judges take a hand in the game, and pandemonium ensues”.
50. The reason for this gradual improvement in the tone of the cross-examination is due both in England and in India to three causes. Firstly, everything now gets reported in the ubiquitous press & no lawyer wants bullying & insolent cross-examination to be reproduced. Secondly, witnesses have come to realise their own rights and start talking back and in fact nowadays it is more often the lawyer rather than the witness who has to be protected by courts. As the old adage has rightly has it, “molasses catch more flies than venegar”. Thirdly, Judges and Magistrates and Jurors and Assessors have now become very sensitive to such bullying and insolvent cross-examination and such cross-examination often gets a boomerang effect and lawyers who are naturally quick-witted and sensible people refrain from jeopardizing their client's cause and their own standing. There is however much room in our parts for an improvement in the tone and efficacy of the cross-examination. Competent persons have always been pointing out that cross-examination in India often exceeds proper bounds. Sir Cecil Walsh in ‘Crimes in India’ page 18 writes:
“Quantity has to take the place of quality. Witnesses are subjected to every species of attack, often without any foundation, to their discredit; suggestions of their sympathy with, or share in, former litigations with the accused, or with some members of his family, and of imaginary sources of enmity, are flung broadcast. When witnesses are attacked on the merits, the cross-examiner will often elicit additional facts against the accused”.
51. This type of cross-examination is due to two things viz., a fatuous desire of the clients to pile evidence upon evidence in the hope that they are building up a case which would be equally strong in all parts and the bad habit of the pleaders due to a wish to stand well with their clients and the public in general who cannot believe that in defence silence is often the most golden virtue and judge and advocate's ability by the amount of the court's time which he consumed. On the other hand, great criminal lawyers like Sir Henry Hawkins, Sergeant Ballantyne and Rufus Choate have said that the art of cross-examination is not to examine crossly and most often not to cross-examine at all because as pointed out by Sir Henry Hawkins, no question is to be put unless there is a sound reason for doing so, and an unnecessary question put which if it does not break the witness breaks only the coss-examiner's case as mentioned by Rufus Choate. The reckless asking of a number of questions, as pointed out by Sergeant Ballantyne, on the chance of getting at something is too often a plan adopted by unskilled advocates and noise is mistaken for energy. But in our parts unfortunately many lawyers appear when cross-examining to have followed Roussequ's receipt for a love letter — to begin without knowing what you are going to say, and to leave off without knowing what you have said (Wellman Day in Court). The net result of this kind of cross-examination can best be summarised in the words of an inscription on an Italian Tomb Stone “I was feeling well, I wanted to feel better, I took medicine, and here I am”.
52. That is why in so far as our courts are concerned, there are judicial decisions enjoining the limitations of cross-examination. Lord Wright said in — ‘Vassiliades v. Vassiliades’, AIR 1945 PC 38 at p. 41 (Z27):
“Now cross-examination is one of the most important processes for the elucidation of the facts of a case and all reasonable latitude should be allowed but the Judge has always a discretion as to how far it may go or how long it may continue. A fair and reasonable exercise of his discretion by the Judge will not generally be questioned by an Appellate Court.”
His Lordship also referred to the well-known observations of the Lord Chancellor Lord Sankey in — ‘Mechanical and General Inventions Co., Ltd. v. Austin etc.,’, 1935 AC 346 at p. 360 (Z28). See also — ‘Suraj Prasad v. Standard Life Insurance Co.,’, 30 Cal 625 (Z29); — ‘Bibi Kaniz Zainab v. Mobarak Hossain’, AIR 1924 Pat 284 (Z30); — Rajkumar Sen v. Ram Sunder’, AIR 1932 PC 69 (Z31), and — ‘Brahmaya v. The King’, AIR 1938 Rang 442 (FB) (Z32).
53. As already pointed out above, half the mischief is done when the questions are put and it becomes too late for the court to prevent the putting of the same. Therefore valuable as the powers are under these sections owing to the timid way in which it is exercised and owing to the difficulties not unoften in the exercise of the same, the aggrieved party has to rely only upon his own remedies for ventilating his grievance viz., file a suit for damages or file a complaint under S. 500 I.P.C with which alone we are concerned here.
54. The steps which an aggrieved witness cruelly defamed has got to take are firstly, to find out whether the questions put to him by the advocate were on instructions by the accused-client or were put by the advocate without instructions and on his own volition; because in such a case if the questions were put on instructions the lawyer would have done nothing more than his duty and if the questions are put without instructions and on the lawyer's own imagination the lawyer will be liable and his client will be innocent of such making or publishing of defamatory statements.
55. Having thus sifted the party responsible for the defamatory statement, the next stance is the launching of a complaint either against the accused party and or the advocate. Though it is not beyond the bounds of possibility it is extremely unlikely that circumstances will exist for proceeding both against the lawyer and the client-accused on the foot of conspiracy to defame. It will be for the complainant then to establish ‘prima facie’ that the defamatory questions were made or published as complained by him by the accused concerning himself and that the words were made or published with the intention of harming the reputation of the complainant. In cases where the complainant is proceeding against the advocate on the ground that he has admitted that the questions were put by him on his own volition, and without instructions from the client, the reply notice given by the lawyer should be proved by the complainant or if a notice had been given to the lawyer and he has declined to reply that fact will have to be proved to show that in putting the questions the advocate was not discharging his professional duties but put them without instructions.
56. In cases where the client-accused alone is proceeded against on account of the reply notice-given by the lawyer intimating that what he did was on instructions or that he never exceeded his instructions in doing what he did, that notice will have to be filed. It is not legally necessary and would be a needless piece of formality to insist upon the lawyer getting into the witness-box and speaking to the notice given to him and the reply notice both of which would be undisputed and what is more can be proved by the giver of the notice as well as the receiver of the notice.
57. In this connection a strange misconception seems to prevail that the reply notice of the lawyer or his stating that what he did was in accordance with his instructions or not in excess of his instructions, is a breach of the provisions of Section 126 of the Evidence Act. Section 126, as has already been explained, has been enacted for the protection of the client and not of the lawyer; and it is founded on the impossibility of conducting legal business without the professional assistance and on the necessity in order to render that assistance effectual, of securing full and unreserved intercourse between the two. The privilege is the privilege of the client and not of the legal adviser. The latter is therefore bound to claim the privilege unless it is waived by his client expressly under S. 126 or impliedly under S. 128, e.g, by examining the legal adviser as to the privileged communication. A party cannot be compelled to disclose any confidential communication made to his legal adviser unless he offers himself as a witness. The privilege applies to all communications oral or documentary in the course of & for the purpose of the employment as legal adviser and the privilege continues throughout and does not get terminated by the termination of the litigation or the death of the parties. This rule however covers only the private and confidential communications between the client and the lawyer and which cannot be disclosed either by means of direct questions or elicited by means of indirect tactics. It does not however preclude the lawyer from replying to the opposite party who wants to proceed against him from stating that what all he did was in pursuance of the instructions given to him and not on his own volition. The rule under Section 126 of the Evidence Act does not require that a lawyer should vicariously make himself responsible for an offence which he never committed and in any event he will not be advancing his client's cause by remaining mute since in that case it is a fair inference to draw that what he did was either in violation or in excess of the instructions given to him or that he and the client conspired to defame this complainant and in which event both the lawyer and the client would find themselves in the dock, ranged as co-accused. So looked at from any point of view the rule under Section 126 of the Evidence Act cannot cover the case of a lawyer acknowledging a notice given to him and replying that what he did was only in pursuance of his instructions and nothing more.
58. In this connection three decisions have been relied upon by the courts below for drawing the inference that the lawyer Mr. Sundaresa Ayyar in this case could not be allowed to state that the questions put by him were under instructions viz., 1935 Mad WN Cr 76 (A); — ‘Saukhi Gope v. Uchit Rai’ AIR 1948 Pat 56 (Z33) and AIR 1950 Mad 537 (B).
59. The facts of 1935 Mad WN Cr 76 (A) decided by Burn J. were as follows: In C.C No. 26 of 1934, Taluk Magistrate, Avanashi, D.W 1 was cross-examined whether he was beaten with shoe for dragging the hand of a sweeper woman of Goundan caste at Tiruppur Muthu Kumara Chettiar Choultry. This D.W 1 filed a complaint under Section 500, I.P.C and testified that he was a respectable man and that, the above question was put to him with the deliberate object of injuring his character and that the imputation was unalloyed falsehood. In addition, he examined the pleader who put the question in cross-examination as P.W 2 who stated that question was suggested to him by the accused in C.C 26 of 1934, his client. The Taluk Magistrate's clerk P.W 3 proved the deposition duly recording this question and the accused admitted that it was true that he asked his pleader to put the above question and that he did so with the object of proving enmity between himself and the complainant in C.C 26 of 1934.
60. The Sub-Divisional Magistrate of Coimbatore, convicted the accused. Thereupon there was an appeal and this was disposed of by me as Sessions Judge of Coimbatore. I reviewed the entire facts and came to the conclusion that the accused did not bring himself within any of the Exceptions to S. 499, I.P.C and confirmed the conviction and sentence and dismissed the appeal with the following observations:
“It is unfounded aspersions of this kind recklessly and constantly made in our courts with impunity — few witnesses can spare the time, trouble and expense to book the culprits in this respect — that makes respectable men reluctant to give evidence and promote the cause of justice.”
61. Thereupon, there was a Revision to the High Court and it was disposed of by Burn J. with more than his customary brevity as follows:
“The learned Magistrate ought not to have allowed the accused's vakil to depose to the instructions given to him for the purpose of the accused's case; Section 126 of the Evidence Act is an absolute bar.
Moreover the accused seems to have been convicted because his vakil put a question to the complainant. This is certainly wrong. The vakil must bear the responsibility for asking the question. The accused certainly cannot be held guilty of defamation committed as it were ‘by proxy’ through the mouth of his vakil. He could only be convicted of defamation by making the imputation ‘to his vakil’, thus publishing it; but as that fact could not be proved by the vakil without the consent of the client (S. 126, Evidence Act) the chance of getting such a conviction would be very rare. I set aside the conviction and sentence and order the fine to be refunded if collected.”
62. This order of Burn, J. can hardly be described, with the greatest respect, as well-reasoned. As I have not got the deposition of P.W 2 in C.C 52 of 1934, I am unable to state the precise nature of the evidence which Burn J. considered as disclosing the instructions. If the vakil had merely deposed that the questions put by him were under instructions, it would not offend Section 126 of the Evidence Act. Then, I am unable to follow, with great respect, how the vakil should bear the responsibility for asking the question when his responsibility arises only, as pointed out above, when he exceeds the bounds of his instructions and actuated by malice of his own puts questions on behalf of his client which he should not have put. There is no meaning also in stating that defamation cannot be committed by proxy through the mouth of his vakil.
63. On the other hand, when the accused instructs his lawyer to put the questions and questions are put to the witness in court, it would certainly be publication by the accused. In other words, though it is the voice of the lawyer which puts the questions, it is the mind and intent of the client-accused which make or publish the defamatory questions. Otherwise if this doctrine were to be extended, so long as the accused is able to employ an innocent third party agency to commit offences he would be absolutely immune. Suppose a vicious man employs a crier to go and publish shameful news in front of his opponent's house. Can he escape criminal liability for defamation? He cannot. The imputation is made or published not to the vakil but to the witness and public in open court.
64. In this connection it must be borne in mind that the responsibility of a lawyer for putting defamatory questions is different from the responsibility of the client-accused for putting the questions. This has been made clear by Bardswell J. in — ‘Bashyam Ayyangar v. Andal Ammal’, 1934 Mad WN Cr 81 (Z34):
“Where a pleader is charged with the offence of defamation punishable under Section 500, I.P.C in that he unnecessarily 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 allegation, and much less proof, that the pleader in putting the questions was actuated by any motive of private malice and was not acting in the interests of his clients, the pleader is entitled to the benefit of Exception 9 to S. 499, I.P.C and the charge which imputes no ill-faith but merely refers to the questions as having been put unnecessarily cannot stand and that therefore the entire proceedings against the pleader ought to be quashed.”
65. The scope of a lawyer's privilege as stated by Wallace J. in AIR 1927 Mad 379 (Z19) was applied. Similarly, Newsam J. in — ‘Seshagiri Rao v. Sadulla’, 1937 Mad WN Cr 243(1) (Z35) held that in regard to a question 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” is not ‘per se’ defamatory; because the presumption is that it was asked under instructions and good faith and the advocate is privileged. Pearson and M.C Ghose JJ. held in — ‘Narayana Chandra v. Harish Chandra’, AIR 1933 Cal 185 (Z35) that a pleader asking the questions in cross-examination under instructions from his client is protected from a charge under S. 500, I.P.C Similarly, Baker and Broomfield JJ. in — ‘Tulsidas v. Billimoria’, AIR 1932 Bom 490 (Z37) held that in India an Advocate who makes a defamatory statement in the conduct of a case has to bring his case within the terms of Exception 9 to S. 499, I.P.C and the burden of proof would normally be upon him. But in practice the courts ought to presume that he acted in good faith and upon instructions and ought to require the other party to prove express malice.
66. Quite different would be the case in the case of a party-accused who claimed the benefit of Exception 9 to S. 499, I.P.C and he has to prove that he made the imputation in good faith for the protection of his interest, though as already pointed out above, good faith is relative to a great extent and must be determined by the circumstances under which the imputation was made, the social status and level of education of the person making the imputation and his reasoning capacity (per Rajamannar J. as he then was) in — ‘Anthoni Udayar v. Velusami Thevar’, AIR 1948 Mad 469 (Z38) and the truth of the imputation need not be proved by an accused person claiming the privilege of the Exception: — ‘Karuppanna Goundan v. Kuppuswami Mudaliar’, 1935 Mad WN Cr 69 (Z39). (Pandrang Row J.).
67. I do not at all see why the chance of getting a conviction would be very rare if we apply the common sense principle laid down in the above decisions and action is taken against the proper party. It was no part of the policy of the British administration of justice and much less of the present Republican Government with its proud motto of ‘Satyameva Jayathe Nanritam’ ‘that a class of hirelings immune from all penal consequences should be treated for intimidating and brow-beating and humiliating witnesses and to bring the administration of justice into contempt and make our courts to be shunned as plague spots. Therefore, this decision which gives no reasons for the conclusions arrived at can hardly be described as concluding the matter.
68. In regard to the decision of Meredith J. in AIR 1948 Pat 56 (Z33) it would be wholly improper for me to canvass the correctness of this single Judge's decision of another High Court which is not binding upon me except to the extent that it refers to the decision of Burn J. in 1935 Mad WN Cr 76 (A). The learned Judge writes:
“I have been referred to the notes In Ratanlal's Penal Code for a Madras case, 1935 Mad WN Cr 76 (A) which, according to the learned commentator, laid down that where the accused was charged with defamation because his vakil put a defamatory question to the complainant and the vakil gave evidence that he did so on the instruction of his client, the accused, the instructions of the accused to his vakil were inadmissible under Section 126 of the Evidence Act and the accused was not guilty of defamation committed as it were by proxy through the mouth of his vakil. Unfortunately, the decision is not obtainable in the library here, but the reasoning quoted seems to me sound.”
69. It is quite possible that if Meredith J. had perused the entire report he might have come to a different conclusion. In any event, his conclusion that no one could ever be prosecuted for defamation in regard to any instructions which he might have given to his lawyer, because it is the lawyer's business to decide whether he could properly act upon the instructions, and whatever responsibility might ensue from acting upon those instructions would be his and no one else's, is opposed to the entire trend of decisions defining the scope and extent of the privilege conferred upon the lawyer and secondly, it will make a lawyer's position in India hopelessly impossible if he were to be held vicariously responsible for all the instructions given by his client and in fact it would be a case not of the lawyer representing his client but of a lawyer doubling or substituting for his client-accused. Tins would cut at the root of the ‘impersonality’ of advocacy which is the basis of our criminal administration of justice. A lawyer is an advocate — one who speaks for another. Naturally beyond what his client tells him the lawyer has no opportunity to test the truth or falsity of the story put forward by the client. It would therefore be unrighteous to make the lawyer the whipping-boy for his client.
70. The third decision of Somasundaram J. in AIR 1950 Mad 537 (B) is a very short order in Cri RC No. 779 of 1949 in which my learned brother had merely followed 1935 Mad WN Cr 76 (A). On the facts also the learned Judge does not seem to have considered that a case had been made out and which also seems to have been the case in AIR 1948 Pat 56 (Z33), where in the circumstances of that case the learned Judge found that it was not possible for him to assume that the questions were put upon definite instructions.
71. This is not the case in the instant case. Here besides the evidence given by the advocate himself, no one outside a lunatic asylum can imagine that this lawyer has spun out of his own head the various details comprising the questions put by him. This information could not have come to him except from his client because there is no private malice in this case which would make that lawyer eager to put those questions notwithstanding the fact that not his client but somebody else had given him the information. These three decisions therefore do not in any way affect our conclusion.
72. In the result, the order of discharge made by the learned Sub-Divisional Magistrate and refused to be interfered with by the District Magistrate is manifestly perverse on facts and unsound in law and merits interference at my hands. But merely because an order of discharge can be set aside, it does not mean that the High Court should set it aside. There are many circumstances in this case showing that a further enquiry need not be made because by these proceedings the purity of the married life of the complainant has been made evident and the falsity of the imputations made against her have been amply demonstrated and the accused persons have been taught a lesson by being put to the expense, trouble and suspense of an enquiry and two revisional hearings. The bitterness between the parties seems to be disappearing and any further enquiry would only give a fresh period of currency for bitter ill-feelings. The offence itself took place long ago and it would not be fair to protract these proceedings. The learned advocate for the petitioner states that his client is not vindictive and wanted only to vindicate her character. Now that it has been vindicated in the highest court of the State, further proceedings are unnecessary. This revision case, subject to these observations, is dismissed.
A/K.S.B
73. Revision dismissed.
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