1. It is not necessary to call upon the Government Pleader in this case because after having heard a very careful argument addressed to us by Mr. Shah in support of the application we see no reason to interfere with the conviction and sentence.
2. In the first place it is contended that a pleader is absolutely privileged from criminal prosecution for defamatory words uttered or written by him in the course of his professional duty. In support of that the decision of the Madras High Court in Sullivan v. Norton I L R (1886) 10 Mad. 28 F. B is cited. The point appears to have been raised in In re Nagarji Trikamji I L R (1894) 19 Bom. 340. But there the Court thought it unnecessary to decide whether an advocate or pleader has the unqualified privilege accorded to him in the Madras decision. In the present case too we think it unnecessary to decide the point. It is no doubt a salutary principle that the Bar should be protected and that unnecessary restrictions should not be put upon advocates or pleaders in the exercise of their duty, because without the valuable assistance of the Bar the Bench cannot be expected to perform its duties with efficiency. Therefore when a pleader is charged with defamation in respect of words spoken or written while performing his duty as a pleader, the Court ought to presume good faith and not hold him criminally liable unless there is satisfactory evidence of actual malice and unless there is cogent proof that unfair advantage was taken of his position as pleader for an indirect purpose.
3. Here the Magistrate has found substantially that the imputations were made by the accused not in the course of the discharge of his duty as a pleader and when we look at the surrounding circumstances we find sufficient evidence to justify that finding of the Magistrate. In the first place the imputation occurs in a letter which was sent to the Magistrate through the post. The libellous words complained of were not used while the pleader was conducting his client's case. If the pleader had Used the words complained of while addressing the Court it would have been an entirely different matter. But here the pleader sent a letter in which he enquired when the Magistrate was going to take up the case for trial. There was no occasion for making any observation on the character of the accused. He all that the pleader was enquiring about was when the Magistrate would take up the case, therefore, he was not called upon to describe in any way the character or conduct of the accused. If then he went out of his way and called the accused a 'notorious wrong-doer' it was open to the Magistrate to infer from that circumstance that the pleader was not acting as a pleader. We think it sufficient to say for the purposes of this case that its determination depends upon a very narrow point whether the libel was uttered by the petitioner in the discharge of his duty as a pleader. Here it has been found by the Magistrate that it was not and we agree with him that the imputation was made by him not as a pleader. The rule must, therefore, be discharged.