NIKUNJA BEHARI SEN Vs. HARENDRA CHANDRA SINHA

JUDGEMENT

(1.) This case comes before us on a reference from the Sessions Judge of Sylhet. One Nikunja Behari Sen was a prosecution witness in a case under Section 408 of the Indian Penal Code. The pleader for the defence asked the witness in cross examination: "Do you drink or smoke ganja? The witness replied in the negative. Subsequently the witness laid a complaint against the pleader before a Magistrate alleging that the question was asked only to satisfy the grudge of the pleader s client. Summons was issued under Section 500 of the Indian Penal Code.

(2.) The learned Sessions Judge has referred the matter to this Court and has recommended that the proceeding against the pleader be quashed. The petition of complaint did not allege any improper motive on the part of the pleader himself. There was merely a suggestion that the pleader had no means of knowing whether the instruction he had received from his client in the matter was true or false.

(3.) In our opinion the Magistrate should have dismissed the complaint. It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it or of any other person (Indian Penal Code Section 499, 9th Exception). A pleader is entitled to the presumption that the questions he asks in cross-examination are, asked in good faith for the protection of the interest of his client. The presumption, therefore, is that a question asked in cross- examination making an imputation affords no ground for a criminal prosecution. To rebut this presumption it is not sufficient merely to allege that the client knew the imputation to be untrue for the duty of the pleader is to present his clients case. So far, at any rate, as the purposes of a prosecution for defamation are concerned, it would be wholly unreasonable to say that it is the duty of a pleader to require whether his clients case is true or false. To rebut the presumption of good faith in such a case there must be convincing evidence that the pleader was actuated by an improper motive personal to himself and not by a desire to protect or further the interests of his client in the cause. No such motive was suggested in the present case.