DEFAMATION COMPLAINT QUASHED

Main Search Forums Advanced Search Disclaimer
G. Narayan Reddy vs P. Sitapathi, Advocate And ... on 28 June, 1991

Cites 9 docs - [View All]
Section 499 in The Indian Penal Code, 1860

The Indian Penal Code, 1860

Section 500 in The Indian Penal Code, 1860

Section 482 in The Code Of Criminal Procedure, 1973


Blog Links
powered by

Andhra High Court

Equivalent citations: 1991 (2) ALT 683
Bench: D J Raju
G. Narayan Reddy vs P. Sitapathi, Advocate And Special Prosecutor And Anr. on
28/6/1991

ORDER

D.J. Jagaunadha Raju, J.

1. This criminal revision is filed by the complainant against the rejection
of complaint (S.R. N. 3735 of 1989) by order dated 29-12-1990 on the file of the
VI Metropolitan Magistrate, Hyderabad. The complainant Sri G. Narayan Reddy who
is advocate by profession, filed the complaint against an advocate Sri P.
Sitapathi alleging that in the course of conducting C.C. No. II of 1988 which
emanated on a complaint filed by the present comPlainant-petitioner and in the
course of arguing Criminal Appeal No. 359 of 1989 on the file of the Additional
Metropolitan Sessions Judge's court, the present accused Sri P. Sitapathi made
various defamatory imputations and thus he is guilty of an offence Under Section
500 I.P.C. The main alegations arc that in the course of cross-examination, the
advocate suggested that the present complainant is in impecunious circumstances
and he is cantankerous by nature and that the marriage proposals for his
daughters failed because of his cantankerous attitude and it was beyond his
capacity to think of having an alliance with an I.P.S. Officer because of his
poor financial position. It is also alleged that during the course of the
arguments in the criminal appeal, the advocate-accused went to the extent of
suggesting that the complainant is an insolvent and that all these things were
done with a view to forcing the complainant not to take interest in the
prosecution of the case and the criminal appeal and they were done with a view
to cow down the complaint and it is also alleged that the suggestion of
insolvency was made more due to malice and ill will against the complainant.

2. The learned Magistrate, after recording the statement of the com-plaint,
rejected the complaint relying upon exception (9) to Section 499 I.P.C. and he
also rejected the complaint on that ground that it is filed belatedly, The
relevant cross-examination of the complainant was done on 2-12-1988 and the
imputations made at the time of the arguments in the criminal appeal look place
on 9-12-1988 and then the complaint was filed after a long delay on 26-12-1990.
The Magistrate came to the conclusion that there is no sufficient material to
proceed further in the case and accordingly rejected the complaint. Aggrieved by
this order, the present revision is filed.

3. In this revision petition Mr. Narayan Reddy, who argued the case as a
party in person, contends that while he was forced to prosecute one S. Gopal
Reddy I.P.S. and his brother Panduranga Reddy in C.C. No. 11 of 1988, Sri. P.
Sitapathi. appearing as the defence advocate, did not follow the rules of
professional conduct and advocacy and he adopted a vilification and smear
campaign and carried on cross-examination of the present complainant making
defamatory statements. This is done with deliberate object of brow-beating the
complainant and to humiliate him. As the case ended in conviction inspite of all
those tactics, during the course of arguments in appeal, the advocate went on to
make further imputations and made damaging statements and he represented to the
court that the complainant is an insolvent and that he was not justified in
hoping to have a marriage alliance for his daughter with a highly qualified
I.P.S. Officer. Mr. Narayan Reddy submits that all these imputations were made
out of private vengeance and malice and with a view to prevent the complainant
from taking active interest in the prosecution of the criminal case and the
criminal appeal. He relics upon Chandra Deo v. Prokash Chandra, and contends

that when the scope of enquiry Under Section 202 Cr. P.C. is very limited and
it is confined to ascertaining the truth or falsehood of the complaint before
issuing the process, the Magistrate has only to sec whether any process is to be
issued or not and he should only satisfy himself as to whether there is
sufficient ground for proceeding further and not whether there is sufficient
ground for conviction. Mr. Reddy contends that the Magistrate dismissing the
complaint relying upon exception (9) to Section 499 I.P.C. is clearly an
illegality. The defence of Section 499 exception (9) is a thing which the
accused should plead and establish after process has been issued to him.. He
also contends that the order does not give reasons as to how the complaint and
the sworn statement and the copy of the written arguments tiled by the
complainant in the course of the argument of the criminal appeal do not, prima
facie, establish a case of defamation. He contends that the order dated
29-12-1990 should be set aside and the Magistrate should be directed to take the
complaint on file and proceed with the case as per law.

4. On behalf of the accused-advocate Sri P. Sitapathi, the learned counsel
Sri. C. Padmanabha Reddy contends that it is well-settled law that in a case of
this nature for imputations made in the course of defending an accused, when the
imputations are made for the purpose of protecting the case of the client and to
advance his cause, no action can be taken to prosecute the advocate for an
offence of defamation even if the words are per so defamatory. In such cases,
unless there is a positive allegation that out of private malice or private
vindictiveness the imputations are made, not with the object of advancing the
cause of the client, but purely to wreak vengeance or to settle old scores, then
alone a complaint would be maintainable. He relies upon Anwaruddin v. Fathim
Bai, ( A.I.R. 1927 Madras 378) in support of his arguments.

5. The point for consideration is whether the order dated 29-12-1990
rejecting the complaint is justified or whether it is liable to be modified.

6. The complainant-revision petitioner, who argued the case in person, took
me through the entire cross-examination portion of his evidence in C.C. No. 11
of 1988. One of the questions put to the witness is, "I suggest to, you that
because of your cantankerousness several alliances were broken." The petitioner-
complainant has taken me through the written arguments which he filed in Crl.
Appeal No. 359 of 1989 in his capacity as person who was permitted to assist the
prosecution, in these written arguments, the main imputation complained against
is that in the course of the arguments the advocate described the complainant as
a man of impecunious circumstances and described him as an insolvent, fn the
present case on hand, there is absolutely no allegation in the complaint that
Sri Sitapathi was acting beyond the instructions of his client and that he was
acting out of private vengeance or private malice against the complainant.

7. Mr. Padmanabha Reddy rightly contended that exception (9) to Section 499
I.P.C. provides a complete privilege and protects the advocate who made
imputations even if they arc per sc defamatory if they are meant to protect the
interests of the client and to advance his cause. He placed strong reliance on
Anwaruddin v. Fathim Bai (2 supra). In that decision which is binding on this
court, the entire law on this branch has been settled. In that decision, the
court upheld the dismissal of a complaint filed for defamation against a lawyer
for matters uttered in court in the course of his professional duties. The court
stated that such a complaint cannot be entertained and then traced the law on
the subject. It referred to one of the earliest decisions Sullivan v. Norton,(
(1887) 10 Mad. 28 (F.B.)) which laid down that such utterances by a lawyer in
the course of his professional duties and required by his duty to his client are
absolutely privileged. Then referring to Tirurangada Mudali v. Tripurasundari
Ammal,( A.I.R. 1926 Mad. 906) which doubted the correctness of the application
of the English common law principles to the criminal law in India regarding
doctrine of absolute privilege, the learned judge stated that the law has to be
applied purely on the provisions of the Indian Penal Code. The court obvserved
as follows:

"There is a course of such decisions which. interpreting the ninth
exception to Section 499 Indian Penal Code, definitely lays down that, when a
lawyer is acting in the course of his professional duties and is thus compelled,
subject to the disciplinary action of the Court, to put forward everything which
may assist his client, good faith is to be presumed, and bad faith is not to be
assumed, merely because the statement is prima facie defamatory, and that there
must be some independent allegation and proof of private malice from which in
the circumstances of the case the Court considers itself justified inferring
that the statement was not made because it was necessary in the interests of the
client but that the occasion was wantonly seized as an opportunity to vent
private malice. This is the general principle to be gathered from the decisions
of the High Court of Bombay"

Then the judge cited various decisions in support of his view. The learned
judge further observed :

"I take it that this principle implies and carries with it this other
principle that even the presence of malice will not override the presumption of
good faith where the statement made 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; that is, that, eventhough some private
malice is gratified by the publication of the statement, if such publication was
imperatively called for in the interests of his duty to his client, the presence
of such malice will not negative the presumption of good faith. That principles
seems to me to apply directly to the present case.............if counter-
petitioner's duty to his client imperatively demanded that the statement should
be made, good faith is present, sufficient good faith to remove the offence out
of the category of defamation. That the counter-petitioner's duty to his client
imperatively demanded that the statement should be made, seems to me
unquestionable."

8. This principle was followed by a later decision reported in Bashyam
Ayyangar v. Andal Ammal.( (1934) M.W.N. 481) In this particular decision various
questions were asked to the witness, a lady, as to whether she was living a
married life or whether she was living in concubinage and as to whether she was
kept by a washerman and a Mohammedan. When the lawyer was proceeded against for
defamation, the court referred to the law laid down in Sullivan v. Norton (3
supra) Tiruvangada Mudali v. Tripurasundari Ammal (4 supra) and the judgment of
Justice Wallace in Anwaruddin v. Fathim Bai (2 supra) and observed as follows:

"That learned judge however, has said in that decision that the effect of
the interpretations of the Indian Law of defamation in the various High Courts
with reference to exception 9 to Section 499 I.P.C. is that "When a lawyer is
acting in the course of his professional duties and is thus compelled subject to
the disciplinary action of the court, to put forward everything which may assist
his client, good faith is to be presumed and bad faith is not to be assumed
merely because the statement is prima facie defamatory, but there must be some
independent allegation and proof from which, in the circumstances of the case,
the court considers itself justified inferring that the statement was not made
because it was in the interest of the client, but that the occasion was wantonly
seized as an opportunity to vent private malice."

9. The above principle of law as laid down by Anwaruddin v. Fathim Bai (2
supra) was said to be attacked by Mr. Bushyam Ayyangar on the ground that
Justice Wallace has put the case too high. Referring to that argument the
learned judge observed that though it is claimed that the judge has put the case
too high, no other authority is shown which has taken a different view and hence
he would, with respect, agree with the view of Wallace. J. and decide the
petition with reference to it. The judge went on to observe as follows:

"Here there is no allegation, and much less proof, that the petitioner in
putting the questions to Andalammal as to her moral character was actuated by
any motive of private malice and was not acting in the interest of his client.
It follows then that he was acting in good faith and this brings him within the
ninth exception and so the charge, which imputes no illfaith but merely refers
to the questions as having been put unnecessarily cannot stand. It is,
therefore, quashed as are also the entire proceedings against the petitioner".

10. The decisions reported in Anwaruddin v. fathim Bai (2 supra) and Bashyam
Ayyungar v. Andal Ammal (5 supra) are the decisions which are binding on this
court. No authority expressing a contrary view is brought to my notice.

11. Sri Narayan Reddy relics upon two other decisions reported in Ayesha Bi
v. Peerkhan Sahib(1954 Cri. L.J.1239) and H. Singh v. State of Punjab and
contends that where there is no proof of instructions from the client and where
the counsel keeps mute or mum about his putting the defamatory imputations on
the basis of specific instructions of the client, the counsel could be liable to
be proceeded against for defamation. Mr. Narayan Reddy contends that defence of
Section 499 exception (9) is a thing which will come into consideration at the
time of trial and not at the stage of deciding whether a complaint shall be
entertained or not. Sri C. Padmanabha Reddy contends that the question of a
defence Under Section 499 exception (9) can be considered even at the stage of
entertaining a complaint. Mr. Padmanabha Reddy points out that the decisions
relied upon by Mr. Narayan Reddy do not lay down any proposition which is in
deviation of the decision rendered by Justice Wallace.

12. H. Singh v. State of Punjab (7) is a case dealing with exception (9) of
Section 499 I.P.C. The Supreme Court held that the question whether or not good
faith has been proved by an accused person who pleads in his defence the ninth
exception Under Section 499 to a charge of defamation Under Section 500 I.P.C.
is a question of fact and on such questions of fact or mixed questions of law
and fact, when there arc concurrent findings, the Supreme Court does not
generally re-examine the matter. The Supreme Court also laid down that failure
to prove good faith would exclude the applicability of ninth exception in favour
of the accused. The principle of this decision does not in any way, Apply to the
facts of our case. The Supreme Court decision dies not lay down that good faith
is not to be presunied(sic) as laid down by Justice Wallace. Ayesha Bi v.
Peerkhan Sahib (6 supra) actually reiterates the principle laid down in
Anwaruddin v. Fathim Bai (2 supra). A reading of the body of the judgment,
particularly, paragraph 17 clearly indicates that the judge is actually
reproducing the paragraph in Justice Wallace's judgment. There is absolutely
nothing to in indicate in these two decisions that the defence of Section 499
exception (9) cannot be taken at the singe of consideration of a complaint.

13. As to at what stage this defence can be raised has been considered by
this Honourable Court in T.R. Devarajan v. Del. Credere Bank of India (1988 APLJ
(Crl) 81). His Lordship Justice Jayachandra Reddy (as he then was) dealing with
a petition Under Section 482 Cr.P.C. observed that the court can examine the
question of the exception after examining the complaint and after recording the
sworn statement of the complainant. The learned judge observed as follows:

"It cannot universally be said that even in case of the applicability of
the 10th exception where the Court, after examining the complaint and its
contents and the contents of the sworn statement and in the context in which the
caution is made, is satisfied that it is prima facie made in good faith, it is
still prevented from exercising its inherent jurisdiction. In examining the
question of good faith, it is not in every case that a trial should go on and
the same to a great extent depends upon the facts. In the instant case, viewed
from any angle, it cannot be said that the caution given by the Reserve Bank is
not made in good faith and no further enquiry is necessary on this aspect.
Consequently, the 10th exception is squarely applicable to the facts of this
case and therefore even if the allegations made in the complaint and the sworn
statement are taken to be true no offence is made out and is laid down in
Kapur's case (1) supra the

proceedings arc liable to be quashed. Accordingly, the proceedings in C.C.
12 of 1987 on the file of the 11th Metropolitan Magistrate, Secunderabad are
quashed and the petition is allowed."

14. Apart from the decision in T.R. Devarajan v. Del Credere Bank of India (8
supra), even on a prior reasoning, it is common knowledge that an exception can
be pleaded even at the stage of initiation of the criminal proceedings. For
example, if a chargesheet is filed accusing a child of three years of committing
murder, can it be argued that the child should face the trial and only at the
time of the trial, the defence of general exceptions can be pleaded? Common
sense dictates that even at the stage of initiation of the proceedings, the
general exception provided under Chapter IV of the Indian Penal Code can be
raised and the accused is entitled to ask for quashing of the criminal
proceedings. It is a well established principle that the exceptions which go to
the root of the matter can always be pleaded even at the stage of mitration(sic)
of the criminal proceedings and parties are certainly entitled to seek relief on
that basis in Section 482 Cr.P.C. petitions.

15. Judging the present case in the light of those decisions it is clearly a
case where the action of the advocate is fully protected. There are absolutely
no allegations of private malice or private vengeance and there is nothing to
indicate that the advocate, who made the remarks and suggestions in the course
of the cross-examination and in the course of the arguments, was making them for
any ulterior purpose and not for the purpose of advancing the cause of his
client. The learned Magistrate is perfectly justified in rejecting the complaint
and not taking it on file.

16. In the result, the criminal revision is dismissed. The order of the
Magistrate dated 29-12-1990 is confirmed.