BRUNDABAN MOHAPATRA Vs. KULAMANI MISHRA

JUDGEMENT

(1.) PETITIONERS in this revision have prayed for quashing the order of the learned Sub -divisional Judicial Magistrate, Bhubaneswar taking congnizance of the offence under Section 500 I. P. C. in I. C. C. No. 19/85. The opposite party filed a complaint alleging therein that he and his wife were members of first party in a proceeding under Section 107 Cr. P. C. numbered as Criminal Misc. Case No. 186/84 in the Court of the Executive Magistrate, Bhubaneswar. In the said 107 Cr. P C. proceeding the opposite party was examined as a witness and the present petitioners were the members of the second party. The counsel for the second party in the said 107 Cr. P. C. proceeding cross -examined the complainant and eligited some answers which have absolutely no bearing with the 107 Cr. P. C. proceeding but were intended only to defame the complainant opposite party and to injure the reputation of the complainant and his wife in the public estimation. The complainant further averred that such questions having been put by the Advocate of the petitioners, the petitioners must be held to have committed the offence of defamation. The initial statement of the complainant was recorded on 12. 3. 1985. The learned Magistrate on being satisfied as to the existence of a prima facie case under Section 500 I. P. C. took cognizance of the same by order dated 13. 3. 1985 which is being impugned in the present revision.

(2.) MR . I. Ray, the learned counsel for the petitioners contends that law authorises to cross -examine a witness by asking any question which tends to test his veracity, to discover who he is and what is his position in life or to shake his credit, by injuring his character although the answer to such questions might tend directly or indirectly to criminate him or might expose him to a penalty or forfeiture and the Advocate of the petitioners in the 107, Cr. P. C. proceeding was well within the jurisdiction by putting the questions which have become the basis of the complaint petition and, therefore, the learned Magistrate committed an error in taking cognisance of the offence under Section 500, I. P. C. The learned counsel further urges that when an Advocate makes a statement or puts a question to a witness in course of a judicial proceeding, he does so for the protection of his client's interest and a Court must presume that it was so made in good faith and, therefore, unless it is clearly established that such statement was wantonly made for any private motive clearly out of malice then a complaint should not be entertained for defamation and such an. act would be covered by the ninth exception to Section 499, Indian Penal Code. It is then urged that the allegations in the complaint petition as well as the statement of the complainant in his initial deposition does not make out any offence under Section 500, I. P. C., and consequently the order passed by the learned Magistrate taking congnisance of the same must be held to be bad in law. All these contentions require careful examination.

(3.) COMING to the second submission of Mr. Ray, no doubt, there is some force in the same but at this stage it cannot be said that the ninth exception to Section 499 of the Indian Penal Code must apply. Section 499 of the Indian Penal Code defines the defamation and the ninth exception to the same is to make an imputation on the character of another provided the imputation is made in good faith for protection of the interest of the person making it or of any other person or for the public good. Mr. Ray in this connection placed reliance on the decision of the Madras High Court reported in the case of Ayesha Bi v. Peerkhan Sahib and Ors., A. I. R. 1954 Madras 741. The learned Judge in that case no doubt observed that the liability of an Advocate charged with defamation in respect of words spoken ot written in the performance of his professional duty depends on the provisions of Section 499 of the Indian Peaal Code and the Court will presume good faith unless there is cogent proof to the contrary. But at the same time, it was held in that case that the privilege is not an absolute one but qualified. Thus, even if a' burden is cast on the prosecution to prove the absence of good faith yet such burden can be discharged only at the trial and not at this stage and, therefore, a cognisance cannot be quashed on that ground at this stage of the proceeding. In my view, therefore, the second contention of Mr. Ray cannot be sustained.