Saukhi Gope And Others v. Uchit Rai Opposite Party.

1. The four petitioners were accused in a criminal case. The opposite party was a prosecution witness. During cross-examination by the petitioners' lawyer the opposite party made these statements; “It is not a fact that Lachhuman and all the prosecution witnesses of this case are members of a gang of thieves stealing Mokaman Ghat railway goods” and “It is not a fact that this case has been concocted against the accused as these accused were instrumental in reporting to the Superintendent of Police about the formation of a gang of thieves by us.”

2. After this, but while the criminal case was still pending, the opposite party filed a petition of complaint in the Court of the Sub-divisional Officer, Barh, for prosecuting the petitioners for defamation under S. 500, Penal Code. The Magistrate dismissed the complaint, holding that it could not be argued that these statements had been made simply to defame, and they were privileged under exception 9 of S. 499, Penal Code. A petition was then made in the Court of Sessions, and the Additional Sessions Judge, Patna, allowed the application and directed further inquiry into the case. The present application is directed against this order for further inquiry.

3. The question whether statements made by parties to judicial proceedings or their advocates are absolutely privileged as in English law or enjoy only a qualified privilege if made in good faith under S. 499, Penal Code, is one about which there has been considerable difference of opinion. A Full Bench of the Madras High Court in In re, P. Venkata Reddy 36 Mad. 2161 held that the exceptions in S. 499 were not exhaustive, and did not exclude the application of the English common law rule for absolute privilege to judicial proceedings in this country.

4. That is the opinion I should like to have adopted myself, because, in my opinion, where statements are made by parties or witnesses, or their lawyers they ought to have absolute freedom subject to the protection which the Court is authorised to afford under Section 148 of the Evidence Act, or such as is afforded in the case of witnesses on oath by a prosecution for false evidence, as was pointed out by the Privy Council in Baboo Ganesh Dutt Singh v. Mugneeram Chowdhry 11 Beng. L.R 321.2 If the Court does its duty no further protection should be necessary by way of a prosecution for defamation, or civil suits for damages. But I find myself concluded by authority. In Tiruvengada Mudali v. Tripura Sundari Ammal 49 Mad. 7283 the previous Full Bench decision in In re P. Venkate Reddy 36 Mad. 216 was dissented from, and in Satish Chandra Chakravarti v. Ram Doyal De 48 Cal. 3884 the whole position was examined, and a distinction was made between prosecution for defamation under S. 500 and suits for damages, and it was held that while in the latter case the English rule may be applied in accordance with the principles of equity and good conscience, in criminal prosecutions it is not possible to go outside the exceptions specified in S. 499 of the Code. The ninth exception is qualified only, and depends upon good faith. This decision in 48 Cal. 388 has been followed by a Division Bench of this Court in Nirsu Narayan Singh v. Emperor 6 Pat. 224,5 where it was laid down that 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 S. 499, Penal Code, and the Court will presume good faith, unless there is cogent proof to the contrary. The privilege is not absolute, but qualified. The common law of England under which an advocate can claim an absolute privilege for words uttered in the course of his professional duty is not applicable to India.

5. As this decision is binding upon me I must hold that there is only qualified privilege, and the question of good faith is involved, and though good faith will be presumed, further investigation would be necessary to see if there was evidence of bad faith, but for other circumstances to which I shall now refer and in view of which the decision of the learned Additional Sessions Judge can be by no means supported.

6. In the first place, the complaint was premature, because the criminal case is still pending and we do not yet know what view the Court will express with regard to the witnesses or witness in question. Presumably the Court did not think the questions put in cross-examination improper or irrelevant, or it would not have allowed them. In the second place, the actual statements of the advocate are not before us. There is nothing to show what he said. We only have the answers and we cannot be sure that the questions might not have been put in such form that they could not in any event be regarded as defamatory.

7. In the third place, there seems to be nothing whatever to show that whatever questions were put were put upon definite instructions from the petitioners. The learned Additional Sessions Judge wants to presume that, but I am afraid that cannot be done. The defence lawyer might conceivably have based his cross-examination upon some other materials in the case, or some statements of other witnesses, and not on specific instructions from his clients.

8. Lastly, the petitioners would not, in any event, be liable, and if any one were liable for defamation it would be the lawyer. I have been referred to the notes in Ratanlal's Penal Code for a Madras case, [Palaniappa Chettiar v. Emperor] 1935 M.W.N 460,6 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. If the petitioners did anything it was only to make certain communications to their lawyer. Under S. 126 no lawyer shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course, and for the purpose, of his employment as such. I have said that it is not possible to assume that the questions were put upon definite instructions. It would have to be proved, and having regard to S. 126 it could not possibly be proved, unless with the client's express consent which in the circumstances he would hardly be likely to accord. It follows from this that no one could ever be prosecuted for defamation in regard to any instructions which he might have given to his lawyer. 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. The present attempt to prosecute the petitioners was in the circumstances completely misconceived. The application succeeds, the rule is made absolute and the complaint against the petitioners will stand dismissed.

R.G.D

9. Rule made absolute.