JIBAN KRISHNA DAS Vs. MONORANJAN BHATTACHARJEE

JUDGEMENT

(1.) THIS is a revisional application at the instance of the petitioner Jiban Krishna Das for quashing, the proceeding pending against him in the court of the Judicial Magistrate, Barrackpore under section 500 of the Indian Penal code.

(2.) THE opposite party Monorahjan Bhattacharjee filed a petition of complaint against rabindra Nath Guha in the Court of the sub-Divisional Judicial Magistrate, Barrack pore for an offence punishable under section 500 of the Indian Penal Code; In the said petition the complainant-opposite party Monoranjan Bhattacherjee alleged that rabindra Nath Guha was a monthly tenant under him and he sent an ejectment notice on July 15, 1977 to Rabindra Nath Guha. On receipt of the said notice Rabindra Nath guha approached his Advocate Sri Jiban krishna Das to send a reply to the said letter. According to the instruction of rabindra Nath Guha, Jiban Krishna Das sent a reply to the ejectment notice and the said reply contained malicious and defamatory statements against the opposite party monoranjon Bhattacharjee. The learned magistrate took cognizance of the case and after judicial enquiry issued process against rabindra Nath Guha. In support of his case the complainant, examined the petitioner who was an Advocate of Rabindra nath Guha. The petitioner, who was P. W. 4, stated that the reply was drafted by sri A. L. Mitra, an Advocate. As instructed by him the petitioner sent the reply. Thereafter, the complainant filled an application under section 319 of the Code of criminal Procedure for proceeding against sri A. L. Mitra and Sri Jiban Krishna Das. The Learned Magistrate allowed she said application and issued process against them by an order dated June 26, 1978. The petitioner surrendered before the learned magistrate and on September 12, 1978 he was released on bail. The petitioner obtained the present Rule on December 18. 1979 for quashing the proceeding pending against him.

(3.) MR D. N. Lahiri, learned Advocate appearing for the petitioner, has argued that the petitioner was in on way connected with the drafting of the reply. The reply in question was drafted by the Senior Advocate Sri A. L, Mitra. Mr. Lahiri argues that Sri A. L. Mitra who was an accused in the case moved this Court in Criminal Revision Case no. 730 of 1979 and Manoj Kumar Mukherjee, J. by his judgment dated June 28, 1979 has quashed the proceeding so far as it related to Sri A. L. Mitra. Mr Lahiri has referred to the case of Sankardas Banerjee v. Nanda Kishore Agarwal, 1979 (1) C. H. N. 305 and has argued that in view of the principles of law laid down in the said decision the present criminal proceeding against the petitioner should be quashed as there is nothing to show that the petitioner did not act in good faith. Mr. Lahiri has further argued that there is also nothing to show that the petitioner was actuated by malice or he had any private grudge against the opposite party Monoranjan Bhattacharjee. In Sankar das Banerjee's case it has been held that it is a well settled law in our country that a lawyer conducting a case on behalf of his client enjoys certain privileges and latitudes and the presumption will be that he has acted in good faith unless the contrary is alleged or established. A lawyer will come within the ninth exception to section 499 of the Indian Penal Code and it will be presumed that he acted in good faith in the interest of the protection of his client unless the contrary is alleged or established. A lawyer would be entitled to such a presumption and unless such presumption was rebutted no complaint under section 500 of the Indian Penal Code against such lawyer should be entertained. There is no material to show that the petitioner was actuated by any malice or he had grudge against the opposite party. Even if the allegations contained in petition filed by opposite party be accepted no cognizable case against the petitioner could arise. The reply in question would merely show that certain irresponsible statements were made. In view of the principles of the law laid down in the decision referred to above there will be no sufficient ground for proceeding against the petitioner. The contention raised by Mr. Lahiri thus succeeds.