1. Babu Upendra Nath Bagchi, a Vakil of the High Court and one of the leading pleaders of the Bhagalpur Bar, was convicted by the learned District Magistrate under Section 500 of the Indian Penal Code and ordered to pay a fine of Rs. 150. The conviction and sentence were upheld on appeal by the learned Sessions Judge.

2. The circumstances of the case are peculiar and raise a question of very great importance. The facts of the case are practically admitted. Mr. F.A. Savi, who is the assistant manager of the Boneli Raj, was called as a witness in a case under Section 147 of the Criminal Procedure Code, which was being contested between the Boneli Raj and the Darbhanga Raj. The appellant, who appeared as a pleader on behalf of the Darbhanga Raj, cross-examined Mr. Savi, and, with the object of impeaching his credit, asked him whether the Sessions Judge had disbelieved his evidence in the case of Biranchi Singh. It appears that when the appellant put this question, the pleaders on the side of the Boneli Raj objected to it,(SIC) being improper, and the Court itself only allowed the question to be put on the appellant's assertion that he knew of his own knowledge, that such was the case, and that the next question that he would put would prove it. The question was then put and was answered in the negative by Mr. Savi. The next question that was put to him (and also negatived) was

"Did you not state before Mr. Hamilton in Lal Behary Singh's case that you were disbelieved by the Sessions Judge but were believed by the High Court?"

To this question also objection was taken and it was allowed to be put by the Court only on the assurance of the pleader that it was correct. The fact that the second question was pressed, Has been held by the lower Courts as aggravating the offence, but it seems to us that if he had not put it, that fact would have been some evidence against his bona fides. These two questions form the subject-matter of the charge of defamation of which the accused has been convicted.

3. In order to understand the case it is necessary to set out some further facts. Sometime in September 1905, one Biranchi Singh, amongst others, was tried on a charge of dacoity before the Sessions Judge of Bhagalpur. His defence was an alibi and, in support of it, he called and examined Mr. Savi as a witness. The Court of Session, however, convicted Biranchi Singh, holding as a matter of fact, that, although there was no reason to doubt Mr. Savi's evidence, yet that evidence did not establish the alibi. On appeal, this Court held that Mr. Savi's evidence, which had been believed by the Sessions Judge and also by this Court, did establish the alibi, and acquitted Biranchi Singh. The appellant, Upendra Nath Bagchi, had nothing to do with that case and apparently was entirely ignorant of what had happened in that case. This is an important feature to bear in mind.

4. On the 1st of May 1906, one Lal Behary Singh was tried for rioting by Mr. Hamilton, the then Sessions Judge of Bhagalpur, and in that case also Mr. Savi was called as a witness for the defence and deposed to an alibi set up by the accused. In this case the appellant appeared as the pleader for the accused; so that Mr. Savi was his own witness. The Government pleader, in cross-examining Mr. Savi, put certain question to him, obviously, with the intention of shaking his credit. The Government pleader has been examined in this case and so also has Mr. Savi; but after the lapse of over two years, it is not unnatural that neither of them can recollect the exact form of the questions. But from the way in which the answers have been recorded, we do not think, there can be much substantial doubt as to what the question or questions were. The record runs: we had a servant Biranchi Singh who was charged for dacoity. I gave evidence for him. He was acquitted by the High Court." We think the Government pleader probably asked him whether the Sessions Judge disbelieved the alibi, get up by Biranchi Singh in that case, which alibi was supported by Mr. Savi's evidence. What the Government pleader himself says is When I put the question to Mr. Savi, in regard to which his statement is recorded, I wanted to show, most probably, that his evidence was not believed by the Sessions Judge." Now, how came the Government pleader to put this question? He is a very experienced practitioner and has been Government pleader for over 13 years. He admits that he had not read the Sessions Judge's judgment in Biranchi Singh's case; and he also admits that if he had read it, he could not have put the question--and this is obvious, because he would then have realized that the question would have been as useless as it was improper. He did, however, put the question. We do not think he had instructions to put the question. He says I myself knew of the case of Biranchi Singh and needed very little instruction." As he had not read the judgment of the Sessions Judge, his personal knowledge or recollection can only have amounted to this--namely, that Mr. Savi had sworn in support of Biranchi Singh's alibi, and that in spite of this the Sessions Judge convicted Biranchi Singh. Is it not very likely, that putting these two circumstances together the Government pleader himself fell into a similar error as the appellant, and drew the wrong inference that the Sessions Judge had disbelieved Mr. Savi and was thereby induced to cross-examine Mr. Savi on the point? Mr. Savi's answer appears at the very end of a rather long cross-examination, and we think that if the appellant, who is described as an experienced and acute pleader, had known the real facts of Biranchi Singh's case, he would certainly in re-examination have cleared up the matter by asking Mr. Savi (his own witness) if he had not, as a matter of fact, been believed even by the Sessions Judge. On the other hand, if as it appears, he knew nothing beforehand of Biranchi Singh's case, it is possible that the inference which the appellant drew at the time, from the way in which the answer is recorded, was that Mr. Savi admitted or at least, left it open to implication that as a fact he had been disbelieved by the Sessions Judge but that his veracity had been established by the High Court. If this was the inference which he drew at the time he might well have thought it quite unnecessary to re-examine him on the point thinking that it was enough that the High Court had believed his witness.

5. In the petition of complaint in this case it is stated that the appellant put the questions intending to harm and injure the complainant's reputation and that the complainant had reason to believe that the appellant was dissatisfied and annoyed with the manager of the Boneli Raj and with the complainant and put the questions maliciously knowing that he was making a false and untrue allegation and insinuation in order to satisfy his personal grudge. In the course of his exhaustive and very able judgment, the learned District Magistrate, Mr. Lyall, has distinctly found that there is no evidence to prove express malice on the part of the accused or any reason to believe that he had any personal motive Or animus against Mr. Savi. He goes on to say, however, quoting from Collett that malice is of two kinds, malice in law and malice in fact. Malice in law is where a wrongful act (e.g., the defamation of another) is done without just cause or excuse. He then goes on to consider whether the appellant, when he put the questions, had just cause or excuse. He finds that he was not instructed to put the questions and he also finds that he had no right to rely implicitly on his recollection of what Mr. Savi had said in Lal Behari Singh's case and in short, that in any case he should certainly not have drawn the inference which, he says, he drew, because it was not the only or true inference which he could have drawn and that, therefore, he acted without just cause or excuse.

6. The learned Sessions Judge has come to no finding on the question of express malice holding that it was unnecessary to decide the point. To us it seems a matter of very great importance and we have no hesitation in coming to the conclusion arrived at by Mr. Lyall. We do not think that the appellant had the slightest personal motive in the matter. We believe that he was acting entirely in the interest of his client and the only question which we have to decide is whether, on the facts of this case the appellant is or is not protected by the 9th exception to Section 499. We are entirely of opinion that he is. The learned District Magistrate seems to be of opinion that the appellant should not have pat the first question merely relying on his memory without first perusing the records of the case to verify his recollection and, more especially, should not have relied on his memory when the pleaders on the other side warned him that he was mistaken. But the records of the case were not in the Court and we certainly do not think that the Court would or should have adjourned the taking of further evidence of Mr. Savi to enable the appellant to examine a record deposited in some other Court. It seems to us it would be very dangerous to tie the hands of counsel in this way. We find on examination that in fact, the appellant's memory of the incident was substantially accurate. The mistake he made was in the inference he drew from what he remembered to be Mr. Savi's answer. But this inference was a possible one, although not of course the necessary inference to be drawn and we think that if the accused, rightly or wrongly, did draw this inference, he was bound, in the interest of his client, to rely on his own recollection. It seems to us specially in the Mofussil of this country where instructions, to the personal knowledge of one of us are very commonly inaccurate and misleading, that a pleader would certainly be at least as much justified in acting on his own recollection as on specific instructions and we do not think that, because he has drawn merely a wrong inference from a fact, that that of itself, in the absence of any malice, should take him out of the 9th exception to Section 499. We agree with the remarks of Jardine and Farran, JJ., in re Nagarji Trikamji 19 B. 340, which were recently referred to with approval by Chandavarkar and Knight, JJ., in Emperor v. Purshottamdas Ranchhoddas 9 Bom. L.R. 1287, namely, when a pleader is charged with defamation in respect of words spoken to 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 pleader for an indirect purpose." In this case, as we have pointed out there is no evidence of any express malice and the alleged unfair advantage taken of his position without due care and attention turns out to be at most a very natural though as it happens a wrong inference evidently made at the time Mr. Savi was examined in Lal Behari's case, and used in apparent good faith in the later case, entirely in the interest of his client and not for his own ends.

7. For these reasons, we make the rule absolute and direct that the conviction be set aside and the fine, if paid, refunded.