JUDGMENT M.F. Saldanha, J.
1. This is a criminal writ petition filed by a practising advocate whereby he has assailed the validity of an order passed by the learned Metropolitan Magistrate, 23rd Court, Esplanade, Bombay, in Criminal Case No. 356/S of 1987 issuing process against him for an alleged offence of defamation. To say the least, the facts of the present case represent a rather unsavoury state of affairs and it is ironical that we are concerned here with not one but two practising advocates embroiled in a personal tiff that, to my mind, should never have reached a Court of law. Respondent No. 1, who is the original Complainant, to crown matters, is a lady advocate. She was appointed legal adviser of the Indian Motion Pictures Producers' Association ("IMPPA" for short) in the month of November 1984. It appears that a dispute arose with regard to certain bills submitted by her in relation to the professional work done for this body and for the Film Industry Anti-Video Piracy Organization ("AVPO" for short), which is supposed to be separate and independent from the IMPPA. It appears that for certain reasons, the retainership arrangement came to be terminated and it is alleged that her dues were also settled. In the Executive Committee meeting of the IMPPA held on 14.5.1985, the resignation of one Ramraj Nahata, who was earlier the President of the body, came to be accepted and one Prakash Mehra was elected the President. Thereafter by another communication dated 4.6.1985, Respondent No. 1 was once again appointed legal adviser/retainer of the IMPPA on a monthly remuneration of Rs. 1000/- to look after all the legal work of the IMPPA and its allied organizations. The out-of-pocket expenses incurred by Respondent No. 1, except the conveyance allowance, were to be reimbursed to her. It is pointed out by the Petitioner, who was the lawyer acting on behalf of IMPPA and its President, that between the period 24th to 26th April 1985 when the services of Respondent No. 1 were first terminated and 4.6.1985 when Respondent No. 1 was re-appointed, no claim of whatsoever nature was preferred by her against the IMPPA. It is also contended by the Petitioner that a list of payments as set out in Exhibit 'B' to the Petition had been made by the IMPPA to Respondent No. 1.
2. According to the Petitioner, general elections were thereafter held to the Executive Committee of the IMPPA and Ramraj Nahata was elected as the President once again. Respondent No. 1, by letter dated 15.10.1985, submitted her resignation mentioning that the pending bills should be settled. By a letter dated 4.11.1985, the resignation was accepted with effect from 15.10.1985 and Respondent No. 1 was requested to attend the office of the IMPPA to collect her dues. A cheque dated 15.11.1985 for a sum of Rs. 500/- was sent to Respondent No. 1, which was received by her on 17.12.1985 against which a receipt in a general cyclostyled form was issued by her.
3. Thereafter begins the acrimonious correspondence between Respondent No. 1 starting with her letter dated 20.1.1986 alleging that there were huge outstanding dues which were not paid and she claimed a sum of Rs. 34,000/-. According to the Petitioner, the record of the IMPPA indicated that there were no outstanding bills pending nor were any bills nor copies thereof seen on the files and thereafter on the instructions of the IMPPA, he addressed a letter dated 2.4.1986 to Respondent No. 1, inter alia, requesting to submit bills or duplicates with full details. A reference was also made to the receipt issued by Respondent No. 1 for the payment of Rs. 500/- on 17.12.1985 in full and final settlement of her dues. Respondent No. 1, by her letter dated 7.7.1986, sent copies of 33 alleged bills and further stated that some of the bills were not traceable. On this occasion, the aggregate amount had increased to Rs. 36,560/-.
4. Between this period and January 1987, there is on record certain detailed correspondence because the Petitioner who was representing the IMPPA had seriously disputed the correctness of the claim made by Respondent No. 1. Apart from other aspects, he had contended that Respondent No. 1's dues had been fully settled on 17.12.1985 as per her own admission on a plain reading of the receipt of that date and, furthermore, that the IMPPA was not liable to pay the bills relating to the AVPO, which was a different organization. In paragraph (23), the Petitioner has briefly pointed out that there is considerable overlapping with regard to the subject-matter of the 33 bills, that some of them are copies of the earlier bills and that several of the bills have been prepared on the same day. There is a serious charge of making false demands levelled against Respondent No. 1 in the petition, which cannot really be disputed by her on the basis of the record.
5. It appears that since the payments were disputed on various grounds, Respondent No. 1 addressed a letter threatening all the 15 members of the Executive Committee with prosecution for a host of offences, starting with cheating, forgery and user of a forged document, if her dues were not settled and a copy of the proposed criminal complaint was even sent to these persons. Essentially, Respondent No. 1 alleged that the receipt dated 17.12.1985 had been interpolated and that the words "full and final settlement" were subsequently added. A xerox copy of the receipt in question is on record and on a prima facie examination of the receipt, it is rather difficult to accept this contention because the handwriting of the words in question is identical with that in the rest of the receipt and, furthermore, there does not appear to be any indication that this writing did not form part of the original document.
6. The conclusion that the receipt has not been tampered with gains considerable support from the fact that Respondent No. 1 followed up her threats of filing a criminal complaint against all the 15 members of the Executive Committee, and it is the submission of her learned Counsel, Mr. Baphana, that the complainant only asked for process against Accused No. 1 Ramraj Nahata, which was issued. Subsequently, Respondent No. 1 herself allowed the complaint to be dismissed, which is a circumstance of some consequence. Mr. Baphana has stated that in view of certain subsequent development whereby the dues of Respondent No. 1 were settled at a certain figure and paid to her that she decided not to proceed with the complaint. This explanation is unconvincing and, in any event, unacceptable because Respondent No. 1 is an advocate who had instituted a judicial proceeding of considerable seriousness and it was her duty to have appeared before the Court and pointed out the circumstances under which she desired to have the proceedings disposed of if such circumstances existed. It is the contention of the Petitioner, Mr. Navin Parekh, that this Court should take a serious view of the conduct of Respondent No. 1 who had threatened all the 15 members of the Executive Committee with a prosecution purely in order to extort the amount wrongly demanded by her and that when this objective was achieved, she was no longer interested in the proceeding and allowed it to lapse. We are not immediately concerned with this aspect of the case, though it would have some bearing on the overall decision of the present petition for which reason I have referred to it.
7. As indicated earlier, the petitioner on behalf of his clients, is alleged to have addressed two letters to Respondent No. 1 dated 15.1.1987 and 27.1.1987 and it is In respect of the statements contained in these two letters that Respondent No. 1 has prosecuted him and Ramraj Nahata on a charge of defamation. The statements to which Respondent No. 1 has taken exception are summarised below:
1. You had acted in a highly unprofessional and unethical manner.
2. You acted in gross violation of the trust reposed in you.
3. IMPPA is contemplating actions to be taken against you for gross professional misconduct with the Bar Council of Maharashtra.
8. It is essentially to the aforesaid statements that Respondent No. 1 has taken serious exception and alleged that they are per se defamatory. She has proceeded against Ramraj Nahata under whose instructions it is alleged that the correspondence was carried on by Respondent No. 2 in his capacity as an advocate and has also made the present petitioner the second accused in the complaint. Respondent No. 1 had not adduced any special reasons for prosecuting the present petitioner who admittedly has addressed the correspondence on behalf of his clients. Strangely enough, during the pendency of the present petition. Respondent No. 1 has arrived at a settlement with Ramraj Nahata, accepted certain payments and has also agreed that she will not proceed with the original complaint as against him. As a result, the companion petition filed by Ramraj Nahata has been disposed of and it is only the present petition which has been furiously contested. As indicated by me in the beginning of this Judgment, this matter ought never to have reached a criminal Court. It is most unfortunate that the fight was continued both vigorously and vehemently right through the High Court.
9. It is not out of place to mention that prosecutions for defamation are often instituted, in a majority of cases because of hurt-feelings, or damaged egos but the parties invariably see reason and conclude these skirmishes amicbaly. In this case, despite my advice to both the advocates that as responsible officers of the Court, they should not continue with this litigation. Respondent No. 1 put forward impossible terms and the petitioner was almost equally adamant in not agreeing to settle the dispute. Arguments were advanced in such detail as though this were a matter of utmost importance, and precious time of the Court was virtually wasted. Truly has it been said, with a degree of lament, that becomes eloquent in these situations, that if the arrears are mounting, there are Advocates responsible for it.
10. It is in this unfortunate background that the present petition is required to be taken up and disposed of on merits. The short issue before this Court is confined to deciding as to whether at the pre-trial stage, grounds exist for quashing of the criminal complaint. The petitioner, who appears in person, has submitted a compilation that runs into almost 200 pages apart from the 14 authorities on which he relies, which span almost another 100 printed pages. The Respondent No. I has also submitted a compilation of 11 authorities running into another 100 pages, apart from written submissions. In addition, the matter was strenuously argued at length by both sides in different sessions spread over about two months. The reference to this aspect is only for the limited purpose of illustrating that virtually no aspect of the case either factual or legal, has been overlooked and this Court has been required to examine every conceivable angle of the matter in the course of these hearings. These dimensions would be of some consequence because in view of the fact that the entire material that could and would have been placed before the Trial Court is before me, one of the aspects of the matter, namely, the all important question as to whether on the strength of this material a conviction is reasonably certain or possible or whether it is remote or virtually impossible would provide an answer to the issue as to whether interference at this stage by this Court is justified. It has always been the argument of an original complainant in the Section 482 proceedings that the litigant be afforded the freedom and the opportunity of proving the case before the Trial Court, that this ought not to be curtailed on the anticipatory ground that the High Court would assume what the complainant's case is going to be and shoot it down if it appears that either no case is made out or that a conviction would be impossible. In the present set-up, where the criminal Courts are struggling in desperation to dispose of custody cases, the first question arises as to whether litigation of the present type is in the public interest and, more so, whether at all it should be permitted. The term "abuse of the process of court" will have to be afforded an added dimension in certain situations where it is a legal necessity to curtail proceedings of a certain category. It is in keeping with this principle that the Supreme Court in Scindia's case carved out a principle that even if a prima facie case is made out, where a conviction appears to be remote, that the quashing of such a proceeding is fully justified. If the Criminal Courts are to be left with a fair opportunity of doing justice within a reasonable time to the voluminous number of criminal cases, particulary the custody matters that are pending before them, a weeding out process for purposes of elimination of some of the dead-wood litigation, even at the initial stages, would be essential.
11. I have already outlined the three passages that have been set out in the complaint on the basis of which it is contended that the offence punishable under Section 500 of the Indian Penal Code has been made out. Objection is taken to the statements which are contained in letters dated 15th January 1987 and 20th January 1987 addressed to the complainant. Obviously, in order to sustain the complaint whereby the ingredient of publication is a must, a common statement is added in the hand of the complainant to the effect that "several friends, colleagues and others who have read the defamatory statements are shocked". It is of some importance to point out that neither the originals nor copies of the documents seem to have been produced before the learned Trial Magistrate at the stage of securing process. Regardless of this fact, the first aspect of the issue that arises is the question as to whether the aforesaid statements contained in the correspondence addressed by one member of the Bar to another can be construed as being defamatory per se. The first of these alleged that the complainant had acted in a highly unprofessional and unethical manner. This statement is descriptive of the conduct of the complainant and has to be viewed along with the following two statements, not in isolation but in the context of the disputes, that had arisen between the parties. As I shall presently point out, this sentence summarises the grievance of the petitioner's client, who was not happy with the manner in which the complainant had acted in the course of handling the case. The same applies to the charge that she acted in gross violation of the trust reposed in her and the third statement is a declaration of intention that the Association was contemplating action against her. That a dispute of some seriousness had arisen between the parties is more than borne out by the correspondence and by the record, wherein it was the Association's case that they were justified in declaring that they were more than dissatisfied with the complainant's work and that they did not owe her any money. The complainant's advocate sought to make out that the relatively large amounts claimed by her were justified, that she had an explanation for her conduct and that she could at all costs see to it that the amounts were paid to her. In the light of this background, which is evident to me after the detailed hearing in the course of which I have examined the correspondence, documents, statements of accounts, etc., that were produced is that, to my mind, the charge of defamation itself is baseless. What needs to be borne in mind is that where a party on the basis of sufficient material arrives at a conclusion and states its case and the contemplated course of action in the legal correspondence, it would be wholly inappropriate to allege that an offence of defamation is committed. I am unable to conclude that there was any malice involved in the statement of one's grievance in the circumstances as set out by me hereinabove. The correspondence was received directly by the complainant and it is nobody's case that it was circulated and under these circumstances the basic ingredients of an offence of defamation, namely, the malicious intention whereby a false imputation is published with the intention of damaging a person's reputation is totally absent from the present set of facts.
12. Mr. Navin Parekh, the petitioner, has argued this case in person. Himself a lawyer of some eminence, in his own right, Mr. Parekh has done useful research into important angles and it was indeed a pleasure evaluating the quality of his arguments. I am summarising the heads of submissions advanced by him because the facts not being in dispute, the essential question that falls for determination in this proceeding is as to whether accepting the prosecution case at face value, an offence can be spelt out in law and, consequently, whether on this material a conviction is possible, likely, unlikely or very remote. The heads of submissions are summarised below:
(a) That the essence of an offence of defamation being that it tarnishes the reputation and status of the complainant in the eyes of the public or third parties, that such a communication to the person concerned cannot constitute defamation because the ingredient of damage is totally nonexistent.
(b) That if in the process of such communication though the medium of a clerk or a typist is used, that it would not in law constitute publication for purposes of the charge of defamation.
(c) The ingredient of malice being the gravamen of the charge, that it cannot be presumed against an advocate acting in discharge of his professional duties. An advocate being the mouthpiece or the spokesman of his client, a presumption to the contrary that he is only a channel for communicating the client's case will have to be accepted. Where express malice is absent, there is no warrant for proceeding against an advocate for defamation.
(d) In the case of an advocate, since he is obliged to act and carry out instructions of the client, a Court should presume that the advocate acted in good faith and upon instructions and ought to require the other party to prove malice.
(e) That in a situation where the cause of action is absent in the complaint, the Court cannot allow the complainant to substitute the essential requirements by subsequent evidence, specifically, that the complaint as drafted makes out no case and the complainant cannot be heard to say that the charge will be substantiated through evidence at a later point of time.
(f) That where the alleged imputations concern pending litigation that it is only after the civil proceedings have been adjudicated, can a grievance be made with regard to the justification or otherwise of the imputations and that so long as those proceedings are pending, a criminal complaint which proceeds on the assumption that the imputations were false or unjustified is premature.
13. In support of his submissions, Mr. Parekh has called my attention to certain authorities to which a brief reference would be useful. In the case of Sukhdeo Vithal Pansare v. Prabhakar Sukhdeo Pansare 1974 Cri.L.J. 1435, a single Judge of this High Court, relying on some of the leading English cases, upheld the position in law that an advocate while acting in the discharge of his duties and addressing a notice containing imputations cannot be said to have published the imputation, even though it was transcribed by the typist. The Court also upheld the important proposition that the notice having been addressed to the complainant, since the typist would have to be excluded, that there was no publication in law. Mr. Parekh also relied on a Full Bench decision of the Allahabad High Court in the case of Queen Empress v. Taki Hussain I.L.R. 7 Allahabad 205, wherein the Court after considering Section 499 of the Indian Penal Code and the case law in detail took the view that a communication of defamatory matter to the complainant alone could not constitute an offence under the section as it lacked the essential requirement of publication. The learned Judges of the Allahabad High Court have considered the law virtually threadbare and, to my mind, laid down a principle that would be squarely applicable to the present proceeding. Assuming, therefore, that even if the imputation is per se defamatory, which is to my mind not the case here; the complaint can never result in a conviction because the defamatory material was not published.
14. On the question of publication, Mr. Parekh has relied on a decision of the Kerala High Court in the case of M. Gopi v. A. Shamsuddin , wherein, after considering the provisions of Sections 126, 127 and 129 of the Evidence Act, the Court held that where a letter containing imputations concerning the complainant was dictated by an advocate to his clerk and sent to the complainant's advocate in reply to the notice issued by the latter, that there was no publication in law. Relying on the leading English cases on the point in the case of Boxius v. Goblet 1894 (1) Q.B. 842; and in the case of Edmondson v. Birch 1987 (1) KB. 371, and the Bombay decision in the case of Sukhdeo Vtthal v. Prabhakar Sukhdeo 1974 Cri.L.J. 1435 referred to supra, the Court held that the communication to a clerk or stenographer does not constitute publication of the type that is contemplated in a proceeding for defamation. Similarly, with regard to the second aspect, namely, the fact that the communication was received by a human being other than the opponent, namely, his lawyer, the Court relied on the decision of this Court in the case of Hormusji K. Bhabha v. Nana Appa AIR 1934 Bom. 299, wherein it was held that the lawyer receiving the communication being an agent receiving it on behalf of his client, no publication can be said to have taken place.
15. On the all important issue that is really the central focal point of the controversy before me, namely, the question as to whether a lawyer who admittedly functions as an agent of his client and acts under instructions is entitled to special consideration in law, it was the contention of Mr. Parekh that good faith must be presumed in all such cases and, consequently, the ingredient of express malice must be demonstrated before a charge of defamation against a lawyer can be sustained. In Re Nagarji Trikamji ILR 19 Bom. 340, a Division Bench of our High Court, while interpreting the Ninth Exception to Section 499 of the Indian Penal Code and the question of privileges of Counsel, held that in the absence of express malice being established that a counsel was protected by the Ninth Exception. The Court observed:
In the case of an Advocate where express malice is absent, a Court having due regard to public policy would be extremely cautious of depriving him of the protection of Exception 9 to c 499 of the Indian Penal Code.
The Court had occasion to consider a large number of cases both under Indian Law and under English Law and carved out this principle which, to my mind, is a most salutary one. Considering the fact that litigations often involve violent disputes founded on allegations far from pleasant, the position of a lawyer who is required to handle such litigation would not only become vulnerable but dangerous and it would encroach upon his professional duty to act without fear or reservation. Some insurance is, therefore, essential for a lawyer and the Division Bench in the course of a very considered judgment held that barring those few situations where it was possible to impute express malice to the lawyer concerned that he was entitled to the immunity conferred by the Ninth Exception to Section 499 of the Indian Penal Code. The case in question relates to November 1984 and having regard to the considerable worsening of the situation around the Courts thereafter, where allegations are made with impunity and indiscriminately against lawyers, such insurance, to my mind, is one of necessity.
16. A Division Bench of the Bombay High Court in the celebrated case of Emperor v. Purshottamdas Ranchhoddas, reported in IX BLR 1287 while dealing with a prosecution against a lawyer under Section 499 of the Indian Penal Code observed:
When a pleader is charged with defamation in respect of words spoken or written while performing his duty as a pleader, the Court ought to presume good faith and not hold him criminally liable unless there is satisfactory evidence of actual malice and unless there is cogent proof that unfair advantage was taken of his position as pleader for an indirect purpose.
One needs to emphasise time and again that the Trial Magistrates would be well advised to be doubly cautious while entertaining complaints against legal practitioners because the law does confer on them certain privileges which are necessary for the conduct of their professional duties and it is, therefore, only in that class of cases where those privileges have been virtually abused alone should process be issued. It would be impermissible to categorise the present proceeding in the latter class. Dealing with the aspect of privilege, Mr. Parekh has relied on the decision in the case of Baker v. Carrick (1894) I Q.B. 838, wherein the Court of Appeal held that a legal practitioner addressing a communication in the ordinary course of duty to his client was immune from an action for libel since the occasion was a privileged one. In another decision of a Court of Appeal in the case of Boxsius v. Goblet Freres 1894 I Q.B. 842 (supra), the Court enunciated the proposition that where a Solicitor acting on behalf of his client dictated to a clerk in the office a letter containing defamatory statements, that no action for libel lay because the action was privileged since the communication if made by the Solicitor direct to the plaintiff would have been privileged and the publication to his clerk was necessary in the discharge of his duty to his client and was made in the interest of his client. Mr. Parekh has cited these decisions to meet the argument that since the communication addressed by him was admittedly typed by his stenographer that it should not be argued that he was acting outside his privilege. The principles enunciated in the aforesaid two decisions, though dealing with the position in civil law, lay down certain salutary tenets that would be applicable to all proceedings for defamation against a legal practitioner, both civil and criminal.
17. Mr. Parekh has drawn my attention to a decision of the Goa, Daman and Diu J.C.'s Court reported in 1981 Cri.L.J. 117. The Court, while quashing a prosecution against a lawyer who had been proceeded against for having drafted an affidavit under the client's instructions containing a defamatory statement, observed that while a lawyer must perform his duty with discretion, it needs to be remembered that he is not the Judge and it is not for him to decide whether the allegations made by his client against the opponent are true or false. Observing that the Ninth Exception to Section 499 of the Indian Penal Code clearly covered such cases, the Court held that it would have to be presumed that the lawyer has acted bona fide and without malice. "Unless such presumption is made no lawyer can possibly discharge his duties towards his clients. If a lawyer makes himself liable for prosecution every time he makes a serious allegation in a pleading under instructions of his clients, it would be impossible for him to carry on his duties."
18. In a slightly later decision of this Court to the one referred to supra, Bakar and Broomfield, JJ. in Tulsidar Amanmal Karani v. S.F. Billimoria AIR 1932 Bom. 490, reiterated the above position and summarised it as follows:
A member of the Bar in India has no absolute privilege. Strictly speaking an advocate who makes defamatory statements in the conduct of a case has no wider protection than a layman, that is to say, he has to bring his case within the terms of Excep. 9 to Section 499 and under Section 105, Evidence Act, the burden of proof would normally be upon him. But in practice the Courts have held on grounds of public policy that an advocate is entitled to special protection and that if an advocate is called in question in respect of defamatory statements made by him in the course of his duties as an advocate, the Court ought to presume that he acted in good faith and upon instructions and ought to require the other party to prove express malice.
The obligation of making out a case that the present petitioner who is an advocate had not acted in good faith and that he had acted maliciously is, therefore, condition precedent and in the absence of this necessary ingredient, the present prosecution cannot be sustained.
19. I need to deal with an unusual aspect of the present proceeding, namely, that Mr. Parekh's client having expressed his regret and the matter having been compromised as far as he is concerned, whether at all this Court should permit the prosecution to continue against the advocate, namely, the present petitioner. An identical situation arose before the Kerala High Court in the case of M.K. Parameshwara Kurup v. N. Krishna Plllai , and the Court observed that it would be an abuse of Court process to permit such a proceeding to continue against the advocate whose only sin was that he acted in the matter. I need to observe that ill-feeling between professionals is something that a Court will neither encourage nor will it foster malicious litigation and the continuation of a litigation against the lawyer in the absence of his client would be indicative of malice on the part of the prosecuting party. Where a prosecution is motivated by such considerations, as observed by Kerala High Court, it is the duty of the High Court to interfere and put an end to such harassment.
20. In another decision where the Editor, Printer and Publisher of a newspaper were prosecuted for defamation, in the case of Konath Madhavi Amma v. S.M. Sherief 1985 Cri.L.J. 1496, the Court had occasion to deal with another aspect of the matter, namely, the question as to whether or not it was essential that the complaintas presented must make out a complete cause of action. Mr. Parekh argues that the present complaint, which is cryptic and wherein an attempt has been made to refer to evidence that will be subsequently produced, was a defective complaint and it is precisely this issue that fell for determination before the Kerala High Court which upheld an order of dismissal of the complaint on the ground that it was defective and does not disclose a cause of action.
21. Drawing a parallel from civil law, Mr. Parekh has pointed out to me that in a decision of the Calcutta High Court in the case of Tarapada Majumdar v. K.B. Ghosh and Co. , Sabyasachi Mukharji, J. (as he then was), had occasion to observe that even though a lawyer has no freedom to act in contravention of a sense of dignity and restraint in the course of his professional duties that where he conveys allegations in a letter addressed under instructions of his client, that he could not be proceeded against for defamation unless express malice could be specifically attributed to him. The advocate enjoys an absolute privilege in public because it is in public interest as well as in the interest of his client that the administration of justice should be entirely unfettered. The learned Judge has, in a detailed judgment, considered a host of decisions under English Law, observations from the opinions of several standard authors and has come to the conclusion that unless malice is pleaded to dislodge the presumption of bona fides of a lawyer that since he acts on instructions and in furtherance of the interest of his client, no cause of action is maintainable against a legal practitioner.
22. A Division Bench of this High Court in the case of Gajanan Laxman Bhalchandra v. Rangrao Amrutrao Deshpande 1980 Mh.L.J. 821 : 83 BLR 12, had occasion to consider the applicability of the Ninth Exception to Section 499 of the Indian Penal Code in the context of a lawyer who is required to convey allegations in the course of cross-examination. The Court was dealing with the vexed question of whether an advocate is liable in cases where he is a spokesman for the communication of allegations on behalf of his client. Holding that the Ninth Exception to Section 499 of the Indian Penal Code would apply, the Court quashed the proceedings and observed:
Converting some questions put in cross-examination by an advocate into a substratum for a singularly strange charge of criminal offence against an advocate would be virtually akin to abuse of judicial process and rank nothing short of stultifying the very dynamic art of cross-examination and rendering its object nugatory and infructuous.
It is essential in situations such as this to bear in mind that the discharge of professional duties necessarily involves the difficult process of conveying material that may be far from pleasant or far from complimentary, but that cannot justify a prosecution for defamation.
23. Lastly, Mr. Parekh has relied on a single Judge decision of the Calcutta High Court in the case of Dr. S.C. Sarkar v. Mahendra K. Saraf 1986 (2) Crimes 564, in support of his proposition that where the defamatory communication itself makes out no case, that the proceedings are liable to be quashed without having resort to the question as to whether it is covered under one of the Exceptions to Section 499 of the Indian Penal Code. One does not require an authority for this proposition because as 1 have already observed, to my mind, the complaint itself does not make out a case of defamation and, therefore the necessity of examining the applicability of an exception would be redundant.
24. The inherent powers under Section 482 of the Code of Criminal Procedure, 1973 have sometimes to be used in order to rid the judicial system of unworthy litigation. Hitherto, the Courts had classified certain categories of criminal litigations as being, unfit for continuance and, therefore, liable to be quashed. To this class one needs to graft on one more, namely, those cases which, as of necessity, must be terminated at the earliest point of time. Where lawyers get at each other instead of faithfully utilising their professional time and skill in representing their respective clients, and where on the basis of contrived super sensitivity they utilise judicial process alleging defamation and where it appears manifest that for all the hurt-feeling that is professed, it is personal vendetta that is the motivation, it is in the interest of the Bar and, more so, that of the Courts, that such proceedings be snuffed out at the very inception. The fact that such cases are filed is most unfortunate, but more importantly, having regard to the extreme pressure on judicial time, Section 482 of the Code of Criminal Procedure will have to be utilised as a guillotine for culling all but hundred percent genuine legal disputes. Whereas it is remarked that a legal practitioner has to develop a thick skin and in the modern context, possibly the proverbial rhinoceros hide, there cannot be any room for the entertainment of protracted proceedings before the law Courts between lawyers who have fallen out with each other and got into legal brawls that are more imaginary than real.
25. On the other hand, Mr. Baphana. learned Counsel appearing on behalf of the complainant, who is respondent No. 1 to this petition, has distinguished these authorities and has contended that the petitioner is attempting to overstep the permissible limits of an examination under Section 482 of the Code of Criminal Procedure because these aspects can only arise after the stage of evidence has been completed. It is Mr. Baphana's contention that legal niceties which are being pleaded can be of assistance, if at all, only at that stage, and it is his basic submission that the defence set out be it one of privilege or on facts must be pleaded before the Trial Court. To this extent, he places strong reliance on the decision of the Supreme Court in the case of Sewakram v. R.K. Karanjiya , wherein the Supreme Court observed while dealing with the Ninth Exception to Section 499 of the Indian Penal Code that "It is significant that under Section 105 of the Evidence Act the burden of proving that the case of the accused comes within Exceptions whether under Chapter 4 of the Indian Penal Code or any special Exception or proviso is on the accused and the Court shall presume the absence of such circumstances." The Supreme Court had in that case rejected the pre-trial challenge as being premature. Mr. Baphana also relied on a decision of the Supreme Court in the case of Balraj Khanna v. Moti Ram , wherein the Court observed as follows:
The principle of absolute privilege of English Law is not applicable in India. The question of Exceptions can be gone into only at the time of the trial. Actual words need not be set out in the complaint.
Mr. Baphana also reinforced his argument with the assistance of another Supreme Court decision in the case of Hareram Satpathy and Ors. v. Tikaram Agarwala and Ors. , wherein it was laid down that the High Court cannot launch out on a detailed and meticulous examination of a case on merits and set aside the order issuing process. The Magistrate having satisfied himself, the probability of a conviction is not the test. The only requirement is that a prima facie case has to be made out.
26.Regarding this aspect of the matter, it is necessary to take stock of the fact that in the subsequent judgments to the above ones, namely, in Nagawwa v. Veeranna and in the case of Madhavrao v. Sambajirao AIR 1988 SC 789, there has been some departure from the old position with regard to the permissible approach of the High Court while dealing with a prayer for quashing of a complaint. Apart from the instances cited in Nagawwa's case, the Supreme Court has laid down in Madhavrao's case that where the possibility of conviction is remote, the High Court would be justified in quashing a proceeding. In sum and substance, the issue before me in the present case boils down to a situation where neither on facts nor in law is the present complaint sustainable and the technical argument pleaded is that the conventional procedure requires the accused to be hauled over the coals before the Trial Court and that this should be permitted. With the chronic overloading of the Courts to the levels reached at present, the survival of the system requires, as of necessity, that worthless litigation be weeded out at the earliest available opportunity. It will be a travesty to submit the accused to this unjustified trauma and to torture the system by allowing the agony of this still-born litigation to endure.
27. While distinguishing the series of English cases cited by Mr. Parekh, Mr. Baphana drew my attention to the case of Pulmann v. Hill 1891 (1) Q.B. 524; and to the case of Gaborn v. Boulter 1932 KB. 266, and pointed out that even English Courts have taken slightly different views in this matter. Having regard to the wealth of case law that we have in this country, Mr. Baphana is somewhat justified in pointing out that some Courts have discouraged undue reliance and emphasis on English cases, but what Mr. Baphana overlooks is the fact that certain salutary principles embodied in those decisions have been reiterated by the Indian Courts.
28. Mr. Baphana has pointed out to me that the status of an advocate such as the present petitioner is governed by certain provisions of the Indian Contract Act. He has referred to Section 23, which prohibits unlawful agreements involving injury to any person which would include injury to reputation, and Section 24, which deals with contracts where the consideration and subject are unlawful and concluded that these being opposed to public policy, there cannot be any question of conferring immunity on a lawyer's action in publishing defamatory statements. In actual fact, this is a misunderstanding of the submissions advanced by Mr. Parekh, who has never canvassed blanket immunity for lawyers with regard to libelous statements. Mr. Baphana then relied on Section 188 of the Contract Act, which confers on an agent the authority to do any lawful act, and he contends that Section 223 of the Contract Act, which indemnifies an agent for the acts done in good faith, would also not be available to the present petitioner. Essentially, Mr. Baphana submits that the petitioner cannot shield himself behind his claim on the ground that he acted on instructions because he is required to use his discretion and avoid carrying out wrong instructions. A lawyer as an agent does not qualify for any special consideration merely because he is acting on instructions unless the aspect of good faith can be established. There is no dispute about the correctness of these propositions, but as indicated by me earlier, I do not find the petitioner having tried to shift the blame to his client because he admits having addressed the letters on behalf of the client, but it is his contention that they do not contain any defamatory material in the background of this case. It is condition precedent that the act of the lawyer constitutes an offence ipso facto and in a situation where it is not so, the niceties of whether he is liable individually or vicariously becomes quite academic.
29. Mr. Baphana made a passing reference to Section 126 of the Evidence Act and argued that it cannot involve a case of a lawyer because the Madras High Court, while interpreting the section in the case of Ayesha Bi v. Peer Khan Saheb , has held that this is a privilege of a client. The present case does not involve any controversy regarding privileged disclosure and, therefore, this argument is quite irrelevant.
30. On the aspect of good faith, Mr. Baphana submits that the Supreme Court has in the case of Sukra Mahto v. Basudeo Kumar , emphasised that the accused has to substantiate his plea, that he made inquiries, acted with care and caution and that he must prove good faith. Relying also on the case of Harbhajan Singh v. State of Punjab . Mr. Baphana submits that good faith requires the accused to act with due care and caution and in case of defamation to carefully verify the correctness of statements before making allegations. He reinforced this argument by referring to the decision of the Supreme Court in the case of Chimanlal v. State of Punjab , wherein the Court has laid down how good faith can be established by the accused. In addition, Mr. Baphana relied on another Supreme Court decision in the case of Balraj Khanna v. Mott Ram , wherein it has been reiterated that the principle of absolute privilege of English Law is not applicable in India. The question as to whether a case is covered by an Exception can be gone into only at the time of the trial. Actual words need not be set out in the complaint. All these decisions, to my mind, lay down principles which, again, cannot assist Mr. Baphana's client, because the set of facts before me in this case does not justify either the filing of a complaint for defamation or the continuation thereof. The niceties with regard to the stage at which the accused can defend himself and the manner in which he is permitted to do so do not require to be even examined.
31. Mr. Baphana relied on a decision in the case of Shikachand v. Emperor AIR 1927 Sind 54, wherein it is laid down that it is not necessary to allege in the complaint that the defamatory communication is directed to any specific person. He also contended that the decision in the case of The Queen v. Sankara ILR Mad. Vol. VI, 1883 at page 381, lays down that a post-card, even if it is registered, might be read by others and it amounts to publication. He also relied on another decision in the case of Municipal Board, Konch v. Ganesh Prasad 1952 Cri.L.J. 282, wherein the Court has laid down that the imputation that will harm is enough to constitute defamation, the intention is not relevant. These are relatively old decisions and, to my mind, legal thinking has progressed substantially since those judgments.
32. Lastly, Mr. Baphana has come to the often-debated issue; namely, the position of a lawyer in unpleasant circumstances. Where a dispute arises, a lawyer has, as of necessity, to communicate statements and charges which are in the form of imputations and allegations. More so, while cross-examining on behalf of a client, an advocate is often required to put questions that on strict technicalities may come within the ambit of defamation. While acting in the discharge of such duties, where admittedly there is no malice, the Court will certainly protect a lawyer who does not transgress the bounds of his professional functions. Mr. Baphana drew my attention to the decision in the case of Deepchand v. Sampatraj 1970 Cri.L.J. 260, wherein the Court observed that a counsel had to use common sense and caution in asking defamatory questions. I have looked at the complaint as also the compilation placed before me containing the correspondence wherein the statements that the complainant has objected are set out. To my mind, Mr. Parekh has not exceeded the bound of restraint. He was required to convey what he did in discharge of his professional duties and in doing so, he cannot be said to have breached the law. Having examined the matter in some depth, I am constrained to observe that the statements in question were justified and there is not even a tint of any malice on his part. On the other hand, the filing of the complaint was most definitely motivated, as was evident from the fact that the complainant sent copies of it with the threat that criminal proceedings will be instituted if the payments demanded were not made and that it is these threats that had been followed up. This Court cannot disregard the conduct of the complainant who is insistent on proceeding with the prosecution even after the matter regarding the payment had been settled, an apology tendered by the client and the dispute compromised with him. It is in these circumstances that I am constrained to observe that the present proceeding falls in that small category of cases where the High Court is duty bound to quash the proceedings outright as it would be difficult to conceive of a more gross instance of misuse of Court process than the continuation of this proceeding.
33. In the result, the petition is allowed and the proceedings before the trial Court are quashed. The rule is accordingly made absolute.
34. After the above judgment was pronounced, Mr. Thakkar, learned Counsel appearing on behalf of the respondent No. 1 has made an oral application for leave to appeal to the Supreme Court under Article 134(1)(c). He also submits that the point of law involved in this proceeding viz., the question of privilege that a practising advocate is invested with as also the subsidiary issue viz., the question as to whether the power under Section 482 of the Code of Criminal Procedure can be invoked at a pre-trial stage in a defamatory proceeding are the subject matter of conflicting decisions in various High Courts and, therefore, that this is a fit case in which leave to appeal to the Supreme Court ought to be granted.
35. As against this, Mr. Parekh reiterates that before canvassing lofty points of the law, one is required to examine the basic structure of the complaint and the all important issue as to whether the essential ingredients of a charge for defamation have in fact been made out. He further contends, that this Court has upheld his submissions on both counts viz., that, in the first instance, no case of defamation has been made out and secondly, that since the communication was addressed directly to the complainant, that there was no publication in law. Apart from this, he seriously contests the position that this is a fit case in which the Apex Court should be called upon to decide any complicated question that may arise.
36. To my mind, this is not a proceeding that raises a substantial question of law of immense public importance and under these circumstances, particularly having regard to the observations made by me in the judgment, that this is a class of litigation which ought not to be permitted to continue: the application for leave to appeal to the Supreme Court is rejected.