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TMI Blog1953 (1) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... ere defended by Mr. V. M. Sundaresa Aiyar, Advocate, Vellore put questions to this witness containing 'per se' defamatory imputations to the following effects viz., (a) that the complainant was in criminal and illicit sexual intimacy with one Azia Khan husband of accused "2 in that case;. (b) that the complainant was taken to Vellore and kept there by the said Aziz Khan in pursuance of such intimacy; (c) that the complainant bore two children to the said Aziz Khan; and (d) that the complainant was living in illicit sexual intimacy with the said Aziz Khan for the past ten years and upto the date of the abovesaid questioning. 3. On the other Hand, it is the case for the complainant that she is the lawfully wedded wife of Kasim Saheb and has been living with her husband for the past 15 years and has borne him no less than four children alive and two dead and that she has been leading a chaste life and that the imputations were grossly defamatory. The complainant gave a lawyer's notice marked as Ex. P. 4 through her advocate Mr. Asker All sahib and to this Mr. Sundaresa' Aiyar has sent a reply notice which the Magistrate refused to allow to be exhibited as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in even if the accused had given the imputed instructions to put such questions to P. W. 1, the counsel P. W. 4 is debarred under Section 126, Evidence Act to disclose the instructions given to him as such. P. W. 4 could not say that these questions were put by him to P. W. 1 on instructions from the accused. The authority in --'Palaniappa Chettiar v. Emperor', 1935 Mad WN 460 (A) is to the point. Their Lordships observed that the accused cannot be found guilty of defamation committed through the mouth of the vakil. He should only be convicted by making the Imputation to the vakil, thus publishing it, but that as that fact cannot be proved by the vakil without the consent of the complainant (Section 126, Evidence Act) the chance of getting such a conviction would be rare. This decision has been referred to in -- 'K. Appayya v. Rama Subhayya', AIR 1950 Mad 537 (B) and followed. Their Lordships stated that when a person acted as a lawyer to a party, he is debarred from disclosing the instructions received from his clients. P. W. 4 has not deposed that the accused gave instructions to put such questions and he is debarred from disclosing such instructions, if any. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the finding of fact is wholly incorrect and I have not the slightest hesitation in holding that the questions were put by the advocate on behalf of the accused-clients on instructions. 4. Then, on the point of law we have to consider the two important points raised viz., the circumstances under which a lawyer and/or his accused-client would be liable to be proceeded against for defamation in respect of 'per se' defamatory questions put in cross-examination of prosecution witnesses. 5. "The rule of law", as pointed out by Lord Sankey, is the condition of liberty. Amid the crosscurrents and shifting sands of public life, the law is like a great rock upon which a man may set his feet and be safe while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts at any rate he can get Justice. For it is on the maintenance and enforcement of the Reign of Law that civilisation exists. The alternative to the Reign of Law is the life of primitive savagery. 6. This rule of law in so far as the administration of criminal justice is concerned is ensured by the fundamental concept viz., that CD t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a man would not venture to consult any skilled person, or would only dare to tell his counsel half his case. (Per Brougham L. C., in -- 'Greenough v. Gaskell', (1883) 1 Myl & K 98 (J)). It is absolutely necessary that a man in order to prosecute his rights or to defend himself from an improper claim to have recourse to the assistance of professional lawyers and it being so absolutely necessary it is equally necessary to use the vulgar phrase, that he should be able to make a clean breast of it to the gentleman and whom he consults with a view to the prosecution of his claim or the substantiating his defence; that he should be able to place unrestricted and unbounded confidence in the professional agent and that the communications he so makes to him should be kept secret unless with his consent (for it is his privilege and not the privilege of the confidential agent) that he should be enabled properly to conduct his litigation. That is the meaning of the rule embodied in Section 126, Evidence Act (Per Jessel M. R. in -- 'Anderson v. Bank', (1876) 2 Ch D 644 (K); per Brougham L. C. in --'Bolton v. Corporation of Liverpool', (1831) 1 Myl & K 83 (D). The rigid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates or pleaders as we know them, because the persons representing are declared to be 'Parties to the litigation with the difference however that the success or defeat is that of the party represented. (cf. the Cognitores and the Procuratores of the Roman Law; Buckland, p. 404). Such declaration would be uncalled for if the passages were intended to refer to a professional class whose profession itself was to represent others. I may however add that Mr. Kane reads these passages of Katyayana as referring to recognised Agents and Pleaders. (See his Introduction to Katyayana, p. xv). The succeeding passages in Katyayana place the 'Niyukta' in the same category as Servants, Agents, Disciples and Relatives (of the party). This seems to me to militate against that expression being read as referring to a professional class. The passage in the Sukraniti is perhaps more significant, because it fixes the remuneration payable to the 'representative' and declares him liable to punishment for receiving anything more; but it is noteworthy that it provides for the appointment of a 'representative' not only on the ground of the party's ignorance of Vyavahara but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a' could evolve nothing more than the following sketch by Mr. M. B. Ahmad I. C. S.: Their duties are mentioned in the two Muslim Indian Codes, Fiqh-c-Firoz Shahi and Fatawa-e-Alamgiri. They were known as Vakils, a term which still applies to them. Marvardl speaks of the profession and considers expert knowledge of the law necessary both for the practice of law and for the acting as Qazi (J. R. A. Section 1910, p. 764). Moreland thinks that the profession did not exist but contemporary authorities have referred to Vakils. Ibn Battuta who was himself a Judge in the time of Muhammad Tughlaq (1315-1351) speaks of them (p. 194, Travels-Lee). Badaoni refers to Rae Arzanl, a Hindu Vakil of Khan Zaman (p. 97, Vol. II and p. 78, Vol. ID. Sir Thomas Roe refers to his 'Solicitor' who perused his plaint (Roe's Embassy. Foster, p. 260). The petition of the East India Company was presented by lawyers on the original side of the Emperor's Court. * * * * A high standard was expected of Vakils -- "The practice of the Law" said Omar, the second Caliph of Islam, 'was to be in good faith and pursued in sincerity as calling'. Vakils had a light of audience in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al system in vogue in the latter. (See Saletore, Social and Political Life in Vijayanagar Empire; N. Venkatramanayya's Studies in the history of the Third dynasty of Vijanagar; Maha Lingam's Administration and social life under Vijayanagar; C. K. Srinivasan, Maratha Rule in the Carnatic and other well known works on Maharatta administration by Grant Duff, Kincaid etc.). 12. Then coming to the British Times, the Madras Bar is the oldest in India. First the merchant came and built his factory in 1639. The soldier then came to guard and protect it. With him the Doctor came to attend to the sick and wounded and the Chaplain to remind them of their religion. But the lawyer came at a later stage and that too not from reputable or skilled sources owing to the fact that in the beginning there were grave doubts and uncertainties about the Company's right to maintain courts and administer justice over non-English inhabitants. In fact under the Charter of 1661 which gave the president and the Council of Fort St. George some kind of judicial authority over the English inhabitants, they constituted themselves a judicial tribunal to dispense justice. They had Consultation Days on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were heard and punished in England. Therefore, the pattern of Grand Juries and Petty Juries and the application of the ferocious Penal Code of England mitigated by local customs and sentiments as much as possible, followed. In addition there were caste Panchayats to dispose of all caste disputes and other disputes submitted to by the parties and Military Courts with reference to military offences. It was in this atmosphere that a group of Attorneys plied their trade. In regard to these Attorneys most of them were a doubtful lot though some of them like Popham, Bromley and Spencer made their mark. The general description of these attorneys is given by Lockyer at the beginning of the century. Lawyers are a plenty and as knowing as can be expected from broken linen drapers and other cracked tradesmen who seek their fortunes here by their wits. It was only in course of time when the court of the Governor-in-Council and the Mayor's courts and the native courts came to be replaced by regular civil and criminal courts and the emoluments of the bar came to be considerable -- by 1835 Hon'ble Mr. John Shore in his Notes on Indian Affairs Vol. 2 was able to write that in one mof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eader was liable to be dismissed for giving an illegal or dishonest opinion and for incompetency. Then we have a series of Acts culminating in the Legal Practitioners Act 28 of 1879 amended by the Indian Bar Councils Act 38 of 1928, placing the entire bar on a sound basis and regulating their relationship with the courts on the one nand and the clientele on the other. 13. Thus we arrive at the present position set out by an eminent lawyer the late Sir P. S. Sivaswami Iyer, in his foreword to Justice Sundara Iyer's Professional Ethics: Detractors of the legal profession have never been wanting in any time or country. The art of making the worse appear the better reason is one which to many a lay mind appears incompatible with a regard for truth and justice. Critics of this kind overlook the fact that the legal profession like every other has its own code of ethics and that the ethics of the Bar are the necessary result of the system of administration of justice in England and in all the countries which have borrowed their system from England. The theory underlying the English system is that the best means of finding out the truth between two contending parties is to hear the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the interests of the person making it. The Exception covers not only such allegations of fact as could be proved true but also expressions of opinion and personal inferences: -- 'Jaffar v. Emperor', 11 Cri LJ 588 (R). But in order to come within this exception the imputation must have been made or published by the accused (a) relevantly, (b) for the protection of his interest and (c) in good faith; -- 'Queen Empress v. Slater', 15 Bom 351 (S); --'Kewala Nandgir v. Crown', 317 Pun LR Cri 1913 (T) and -- 'Muhammad Gul v. Pazley Karim' AIR 1929 Cal 346 . In good faith, an essential ingredient is honesty of purpose. The accused must firstly, honestly believe his imputation to be true, and, secondly, he must honestly make it from a sense of duty to himself. He must not exaggerate or say unnecessary things. He must not make his duty the cover for spreading the libel. The question for enquiry in such cases will be whether the accused had reasonable grounds for believing the imputations to be true and for believing that it was necessary for his safety to give publicity to them. The leading cases on the requisites of good faith are : -- 'Subrahmaniah v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 906 (Z10), has held that on matters specifically dealt with by the Penal Code, such as this, the English Common Law is not applicable. The Allahabad High Court has uniformly been holding that The liability to prosecution for defamation must always be determined with reference to this section : --'3 All 815 (Z); -- 'Isuri Parsad v. Umrao Singh', 22 All 234 (Z11); -- '29 All 685 (H) and -- 'Tilkanchan v. Emperor', 11 Cri LJ 594 (All) (Z12). The Bombay authorities which were generally in favour of holding such statements as absolutely privileged have been departed from in the later Full Bench case in -- 'Shantabai v. Umrao', AIR 1926 Bom 141 (Z13). The Rangoon High Court in -- 'Medonnell v. Emperor', AIR 1925 Rang 315 (Z14), the Punjab High Court in -- 'Phundi Ram v. Emperor', 12 Cri LJ 193 (Lah) (Z15) and the Sind Court in -- 'Hoondraj v. Emperor', AIR 1921 Sind 92 (Z16), held the same view as the Calcutta High Court. Therefore, as pointed out by me above in order to come within the ninth Exception to Section 499, I. P. C., the accused must show that the imputation was made relevantly, for the protection of his interest and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is thus compelled to put forward everything that may assist his client, good faith is to be presumed and bad faith is not to be presumed merely because the statement is 'prima facie' defamatory; but there must be some independent allegation and proof of private malice from which in the circumstances of the case, the Court considers itself justified in inferring that the statement was made not because it was necessary in the interests of the client, but that the occasion was wantonly seized as an opportunity to vent private malice. Even the presence of malice will not override the presumption of good faith, when the statement was obviously necessary in the interests of the client, and where the lawyer could not omit to make it without gravely imperilling the interests of his client, and would in fact not be discharging his duty to his client unless he made it. Under Exception 9 it is not defamation to make an imputation on the character of a witness in good faith, and for the protection of the client. The presumption therefore is that a Question asked in cross-examination, making such an imputation affords no ground, ordinarily, for a criminal prosecution. It is the duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 155, can former contradictory statements be proved, unless that part of the witnesses's evidence, which they contradict, was itself liable to be contradicted. Sections 147 and 148 protect witnesses against improper questions. The court has the power either of prohibiting questions under this Section 148, and, if the question be allowed, of drawing or not drawing an inference from a witness's refusal to answer. The exclusions provided in Sub-sections (2) and (3) in Section 148 and in Sections 151 and 152 indicate with more distinctness than is to be found in the English Law, the principles on which the court should proceed in protecting witnesses from reckless and unjustifiable interrogation. A witness is not to have his whole past life raked up and dragged into publicity merely because he comes forward in obedience to the law to give evidence in Court; so serious a private inconvenience can be justified only be a real necessity; and it is not so justified when either the imputation, if true, would not affect the witness's credibility, or when the injury to the witness's character is very serious, while the importance of the evidence very small. A woman wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. This will force the hand of the advocate to prematurely disclosing his object in putting the questions and this would put the witness on guard and the effectiveness of the cross-examination will be completely destroyed: -- 'Harnam Singh v. Emperor', AIR 1931 Sind 38 (Z25); -- 'Abbas Ali v. Emperor', AIR 1933 Lah 667 (Z26). We must not forget that in many cases as pointed out by Lord Birkenhead the issues are of such a nature that severe and even very wounding cross-examination is required. Justice in such cases could not be elucidated without the most searching offensive and exasperating cross-examination" (Law Life and Letters, Vol. I, 242). Because as pointed out in our Dharma Sastras the deceit underlying a case has got to be extracted as a physician takes out from the body an iron dart by means of surgical instruments, (P. V. Kane 'History of the Dharmasastras' Vol. 3, p. 271). 22. In this connection, it must be stated that the offensive cross-examination and insulting of the witness which used to be the fashion in the Old Bailey and in our Magisterial Courts has been fast disappearing. Take England. Here, for an example is an Attorney-Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying & insolent cross-examination to be reproduced. Secondly, witnesses have come to realise their own rights and start talking back and in fact nowadays it is more often the lawyer rather than the witness who has to be protected by courts. As the old adage has rightly has it, "molasses catch more flies than venegar". Thirdly, Judges and Magistrates and Jurors and Assessors have now become very sensitive to such bullying and insolvent cross-examination and such cross-examination often gets a boomerang effect and lawyers who are naturally quick-witted and sensible people refrain from jeopardizing their client's cause and their own standing. There is however much room in our parts for an improvement in the tone and efficacy of the cross-examination. Competent persons have always been pointing out that cross-examination in India often exceeds proper bounds. Sir Cecil Walsh in 'Crimes in India' page 18 writes: Quantity has to take the place of quality. Witnesses are subjected to every species of attack, often without any foundation, to their discredit; suggestions of their sympathy with, or share in, former litigations with the accused or with some members of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Court. His Lordship also referred to the well-known observations of the Lord Chancellor Lord Sankey in -- 'Mechanical and General Inventions Co., Ltd. v. Austin etc.,', 1935 AC 346 (Z28). See also -- 'Suraj Prosad v. Standard Life Insurance Co.,', 30 Cal 625 (Z29); -- 'Bibi Kaniz Zainab v. Mobarak Hossain', AIR 1924 Pat 284 (Z30); -- Rajkumar Sen v. Ram Sunder' and -- 'Brahmaya v. The King', AIR 1938 Rang 442 (Z32). 24. As already pointed out above, half the mischief is done when the questions are put and it becomes too late for the court to prevent the putting of the same. Therefore valuable as the powers are under these sections owing to the timid way in which it is exercised and owing to the difficulties not unoften in the exercise of the same, the aggrieved party has to rely only upon his own remedies for ventilating his grievance viz., file a suit for damages or file a complaint under Section 500 I. P. C. with which alone we are concerned here. 25. The steps which an aggrieved witness cruelly defamed has got to take are firstly, to find out whether the questions put to him by the advocate were on instructions by the accused-client or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 126, Evidence Act. Section 126, as has already been explained, has been enacted for the protection of the client and not of the lawyer; and it is founded on the impossibility of conducting legal business without the professional assistance and on the necessity in order to render that assistance effectual, of securing full and unreserved intercourse between the two. The privilege is the privilege of the client and not of the legal adviser. The latter is therefore bound to claim the privilege unless it is waived by his client expressly under Section 126 or impliedly under Section 128, e.g., by examining the legal adviser as to the privileged communication. A party cannot be compelled to disclose any confidential communication made to his legal adviser unless he offers himself as a witness. The privilege applies to all communications oral or documentary in the course of & for the purpose of the employment as legal adviser and the privilege continues throughout and does not get terminated by the termination of the litigation or the death of the parties. This rule however covers only the private and confidential communications between the client and the lawyer and which cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enmity between himself and the complainant In C. C. 26 of 1934. The Sub-Divisional Magistrate of Coimbatore, convicted the accused. Thereupon there was an appeal and this was disposed of by me as Sessions Judge of Coimbatore. I reviewed the entire facts and came to the conclusion that the accused did not bring himself within any of the Exceptions to Section 499, I. P. C. and confirmed the conviction and sentence and dismissed the appeal with the following observations: It is unfounded aspersions of this kind recklessly and constantly made in our courts with impunity -- few witnesses can spare the time, trouble and expense to book the culprits in this respect -- that makes respectable men reluctant to give evidence and promote the cause of justice. Thereupon, there was a Revision to the High Court and it was disposed of by Burn J. with more than his customary brevity as follows: The learned Magistrate ought not to have allowed the accused's vakil to depose to the Instructions given to him for the purpose of the accused's case; Section 126, Evidence Act is an absolute bar. Moreover the accused seems to have been convicted because his vakil put a question to the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used for putting the questions. This has been made clear by Bardswell J. in -- 'Bashyam Ayyangar v. Andal Ammal', 1934 Mad WN Cri 81 (Z34): Where a pleader is charged with the offence of defamation punishable under Section 500, I. P. C. in that he unnecessarily in cross-examination put to the complainant, who was a witness In a criminal case, certain questions which Imputed immoral character and there is no allegation, and much less proof, that the pleader in putting the questions was actuated by any motive of private malice and was not acting in the interests of his clients, the pleader is entitled to the benefit of Exception 9 to Section 499, I. P. C. and the charge which imputes no ill-faith but merely refers to the questions as having been put unnecessarily cannot stand and that therefore the entire proceedings against the pleader ought to be quashed. The scope of a lawyer's privilege as stated by Wallace J. in AIR 1927 Mad 379 (Z19) was applied. Similarly, Newsam J. In -- 'Seshagiri Rao v. Sadulla', 1937 Mad WN Cri 243 (Z35) held that in regard to a question puts, by an advocate In the course of re-cross-examination to the complainant: "Is it not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; and make our courts to be shunned as plague spots. Therefore, this decision which gives no reasons for the conclusions arrived at can hardly be described as concluding the matter. 31. In regard to the decision of Meredith J. in AIR 1948 Pat 56 (Z33) It would be wholly improper for me to canvass the correctness of this single Judge's decision of another High Court which is not binding upon me except to the extent that it refers to the decision of Burn J. in 1935 Mad WN Cri 76 (A). The learned Judge writes: I have been referred to the notes in Ratanlal's Penal Code for a Madras case, 1935 Mad WN Cri 76 (A) which, according to the learned commentator, laid down that where the accused was charged with defamation because his vakil put a defamatory question to the complainant and the vakil gave evidence that he did so on the instruction of his client, the accused, the instructions of the accused to his vakil were inadmissible under Section 126, Evidence Act and the accused was not guilty of defamation committed as it were by proxy through the mouth of his vakil. Unfortunately, the decision is not obtainable In the library here. but the reasoning quoted, seems to me sound. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any way affect our conclusion. 33. In the result, the order of discharge made by the learned Sub-Divisional Magistrate and refused to be interfered with by the District Magistrate is manifestly perverse on facts and unsound in law and merits interference at my hands. But merely because an order of discharge can be set aside, it does not mean that the High Court should set it aside. There are many circumstances in this case showing that a further enquiry need not be made because by these proceedings the purity of the married life of the complainant has been made evident and the falsity of the imputations made against her have been amply demonstrated and the accused persons have been taught a lesson by being put to the expense, trouble and suspense of an enquiry and two revisional hearings. The bitterness between the parties seems to be disappearing and any further enquiry would only give a fresh period of currency for bitter ill-feelings. The offence itself took place long ago and it would not be fair to protract these proceedings. The learned advocate for the petitioner states that his client is not vindictive and wanted only to vindicate her character. Now that it has been vindi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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