1. This is an appeal against the order of acquittal passed by the learned Sessions Judge, Jalgaon setting aside the order of conviction passed by the Judicial Magistrate, Jalgaon in a case in which a Police Inspector prosecuted the Special Public Prosecutor for having used defamatory language.
2. This matter arose because of a Sessions case on account of communal riots, which broke out at Jalgaon on May 8, 1970, As a result of these riots forty-three lives were lost and several houses set on fire. The complainant was the Police Inspector attached to the city police station, Jalgaon and was posted on duty in the locality where Maniyar Mohalla and Jumma Mashid were situated. It was the complainant who had given the first information reports in respect of some of the offences alleged to have been committed in the Muslim localities and he was, therefore, the person who had investigated into some of the offences. It has also come on record that the complainant Police Inspector was suspended on May 25, 1970 pending inquiry into his conduct in connection with the communal riots which took place at Jalgaon on May 8, 1970. It is in these circumstances that the. complainant was examined as a witness in Sessions Case No. 1 of 1971 by the accused who was the Special Public Prosecutor for conducting the prosecution in that sessions case.
3. The evidence of the complainant Inspector was recorded as a prosecution witness on April 20, 1971 and he had stated there in his examination-in-chief that he had investigated some cases in connection with the communal riots and then handed over the investigation to the Dy. S.P., C.I.D. after eight days. He had also recorded some statements during those days. He had also admitted that forty-three persons were killed and 126 houses were burnt during the period of the riots and out of these 126 houses 108 were of Muslims. It is in his cross-examination that he started deposing to the defence counsel that there were no lights in Maniyar Mohalla and Jumma Mashid locality till about 8-30 p.m., that Syed Musa was in normal condition when he recorded his statement on May 13, 1970; that he did not find any of the persons whose statements he recorded panicky at the time when they gave the statements; that the leaders of the Muslim community on the next day were announcing on loud speakers in the refugee camps and telling the Muslims not to give any statements to the police without consulting them. In the context of the said development the accused, who was conducting the sessions case as the Special Public Prosecutor, started saying to the Court that the witness be declared hostile to the prosecution. He also said the following:
Mr. Sawant is anti-Muslim and pro-Hindu and that is why he has been suspended by the Government and he is going to be dismissed for that. He is a liar and also an untruthful witness. He is not telling the facts which will support the prosecution and is won' over by the defence.
He then filed an application before the Court to treat the complainant as a hostile witness. His application, however, was rejected but the Court allowed him to ask questions after the cross-examination in the re-examination.
4. It appears that at that time the complainant also filed a separate application requesting the learned Sessions Judge to take necessary action against the accused because of the defamatory words which he used against him, but the learned Sessions Judge did not take any action and suggested to the complainant that if he is so advised, he can take recourse to law. It is in these circumstances that the complainant came to file a complaint against the accused. It is in these circumstances also that the accused came to be charged with the offence punishable under Section 500, Indian Penal Code for having uttered the defamatory words against the complainant on April 20, 1971.
5. The accused admitted having made the statement but explained that the impugned statement was made on an occasion which was absolutely privileged and that it was done without any malice. He, therefore, claimed protection under the ninth exception to Section 499, Indian Penal Code. This defence, however, found no favour with the learned Magistrate, who held that the accused had failed to establish good faith. The matter, therefore, went in appeal and the learned Sessions Judge did not agree with the view of the trial Court and accordingly therefore set aside the order of conviction and sentence of a fine of Rs. 500 and imprisonment till the rising of the Court and acquitted him of the offence with which he was charged. That order of acquittal, therefore, is now challenged here by the complainant, who was granted leave and whose appeal was admitted. The only point, therefore, that arises here for consideration is whether the order passed by the learned Sessions Judge is legal and proper.
6. It will be useful for the purpose of deciding this appeal to mention here that the complainant Inspector of Police had filed his complaint not only on the basis of the language used by the accused in the Sessions Court while prosecuting that case but also on the basis of another allegation. The other allegation was that the accused had mentioned some words earlier when he was putting up in the travellers' bungalow at Jalgaon in the presence of the two police sub-inspectors Patil and Thakur and those were that the complainant was a Jan Sangh man and was trying to bribe the Muslim witnesses. The complainant, therefore, is alleged to have questioned about this conduct of the accused to him on the morning of April 20, 1971 in the travellers' bungalow but the accused avoided to answer his query. The learned Magistrate wanted in the beginning to send the complaint of the complainant for inquiry under Section 202, Criminal Procedure Code, but when the complainant appeared on August 23, 1971 and informed the Court that he did not want to proceed with the allegations about the incident alleged to have taken place in the travellers' bungalow, he did not send the complaint for inquiry under Section 202, Criminal Procedure Code but issued process under Section 500, Indian Penal Code in respect of the other allegations viz. the use of the defamatory language in the Court while conducting the sessions case.
7. A purshis was also passed by the complainant later on October 27, 1971 deleting the allegations contained in para. No. 2 of the complaint. The allegation was regarding the talk of the accused in the presence of the two police sub-inspectors Patil and Thakur that the complainant was Jan Sangh man and was bribing the Muslim witnesses, and that he questioned him on the morning of April 20, 1971 at the travellers' bungalow in Jalgaon.
8. The only evidence in this case is the evidence of the complainant Police Inspector Sawant; although he had deleted the first incident regarding the talk of the accused in the presence of inspectors Thakur and Patil in the travellers' bungalow, yet he was allowed to depose about it in his evidence. He said that about fifteen days before his evidence in the Sessions Court the accused conveyed to him through the sub-inspectors Thakur and Patil that he was a Jan Sangh and that he was carrying Rs. 1,000 to 1,200 with him for Muslim witnesses and was trying to win them over, that he (accused) was going to make an affidavit to that effect. Because these allegations were false, therefore the complainant went on April 20, 1971 and asked the accused in his office at the travellers' bungalow the basis of the allegations but the accused avoided to give a reply to his questions. It is on the basis of this evidence end without asking any question about it to the accused that the Magistrate held that he had an express malice against the complainant when he used the defamatory language in Court against him. The learned Sessions Judge commented upon the strange way of the Magistrate who held that the accused had shown his express malice and that is because of the incident at the travellers bungalow, and I think rightly. The learned Magistrate not only did not ask any question on this part of the evidence given by the complainant to the accused disregarding the provisions of Section 342, Criminal Procedure Code but relied on the same knowing full well that that part of the allegations was dropped by the accused. He has expressed it also by a purshis. The Magistrate was in error because the complainant had abandoned his ground on the basis of the incident in the travellers' bungalow and had never sought to make it a foundation for the charge of defamation. He had committed one more error when he disregarded the provisions of Section 342, Criminal Procedure Code and not asked the accused any question upon this circumstance of express malice; he ought not to have relied on it for the purpose of concluding that the accused had express malice when he used the defamatory language in the Sessions Court while trying to declare the complainant a hostile witness.
9. The learned advocate Mr. Pradhan for the complainant has taken me through the various applications made by the parties in the Sessions Court. The first application is at exh. 20 dated April 20, 1971. made for declaring the complainant as a hostile witness. The application was not allowed but the accused as the Special Public Prosecutor was allowed to re-examine the complainant after his cross-examination. Then we have at exh. 21 of the same date an application by the complainant protesting against the defamatory statement made by the Public Prosecutor in the presence of other witnesses who were present in the Court, 'We have also the reply of the accused dated April 21, 1971 at exh. 22 attempting some modification of the defamatory statement alleged by the complainant. There is also an application by the complainant at exh. 23 dated April 21, 1971 with a request to the Court that legal action should be taken against the Special Public Prosecutor for using the defamatory language the previous day. The learned Sessions Judge rejected that application but suggested to the complainant, if he wanted, to have a recourse to law; it is after this that the complaint was filed by the complainant on grounds which included the allegations alleged to have been made by the accused in the Dak bungalow in the presence of two police sub-inspectors. It is on the basis of these applications that Mr. Pradhan contends that there was no withdrawal of the query which the complainant made with the accused in the morning of April 20, 1971 at the travellers' bungalow regarding the allegations made by the accused in the presence of two police sub-inspectors. Mr. Pradhan says that although the defamatory charge on the basis of the alleged defamatory language used by the accused in the travellers' bungalow was withdrawn, yet according to Mr. Pradhan the allegation of complaint ask-ins- the accused as to whether he said so was not withdrawn. It is, however, difficult for me to accept this contention for the obvious reason that the complainant himself had passed a purshis at exh. 6 on October 27, 1971 and deleted the charge contained in para, 2 of the complaint. The learned Magistrate also has entered so in the Rojnama on August 23, 1971, when the complainant appeared before him and said that he did not want to proceed with the allegation contained in para. 2 of the complaint. It is mentioned in the Rojnama that the complainant told the Court that he did not want to prosecute the accused regarding the incident alleged to have taken place before the police inspectors Thakur and Patil and also said that he restricted his case only to the incident which took place before the learned Sessions Judge on April 21, 1971. The complainant as well as his counsel had also agreed to pass a purshis to that effect. An inquiry under Section 202, Criminal Procedure Code was therefore dropped and the process issued under Section 500, Indian Penal Code only in respect of the restricted incident.
10. Evidently, therefore, having regard to this circumstance of restricting the charge of defamation only to the incident which took place before the learned Sessions Judge on April 21, 1971, the learned Magistrate could not have taken into consideration any circumstance connected with the other incident at the travellers' bungalow after its withdrawal by the complainant. Mr. Pradhan's contention, therefore that even after the complainant had withdrawn the defamatory charge based on the incident in the travellers' bungalow, the Court could still consider that incident for malice is without substance. For the purpose of establishing that there was malice on the part of the accused, it is very essential that the incident at the travellers' bungalow was proved. In the absence of any proof as regards the allegation in the travellers bungalow it is impossible to say that there was malice on the part of the accused when the incident took place in the Court of the Sessions Judge on April 21, 1971.
11. Under the ninth exception to the offence of defamation, it is no defamation to make an imputation on the character of another provided that the imputation is made in good faith for the protection of the interest of the person making it or of any person or for the public good. In Tulsidas v. Billimoria : AIR1932Bom490 , the division Bench of this Court was dealing with the case of an advocate and some defamatory remarks made by him. While discussing the remarks based on the instructions made by the advocate the division Bench observed as follows:
In India a member of the bar has no absolute privilege. An advocate who makes defamatory statements in the conduct of a case has no wider protection than a layman, that is to say, he has to bring his case within the terms of exception 9 to Section 499, and under Section 105 of the Indian Evidence Act the burden of proof is normally upon him. In practice, however, an advocate is entitled to special protection, and if an advocate is called in question in respect of defamatory statements made by him in the course of his duties as an advocate, the Court ought to presume that he acted in good faith upon instructions and ought to require the other party to prove express malice.
12. Therefore, if an advocate is hauled up in respect of some defamatory statements made by him during the proceedings in which he appears and he makes those statements in course of his duties as an advocate the Court ought to presume that he acted in good faith and upon instructions; and ought to require the other party to prove the express malice. Now, so far as the facts and circumstances of our case are concerned admittedly the accused has used the words, which are alleged to have been used during the trial of the sessions case. The statement is that the complainant was anti-Muslim and pro-Hindu and that he was a liar and that he had been won over by the defence. The accused says that he had done so under instructions. He was admittedly appointed as a Special Public Prosecutor to conduct the case which resulted as a consequence of the riots which took place at Jalgaon on May 8, 1970. Admittedly a large number of lives were lost and many houses were burnt. The accused who was conducting the case as a public prosecutor was not satisfied with the way the complainant had given answers during the course of his cross-examination and therefore wanted to declare him and treat him as hostile to the prosecution. He has naturally to give some reasons why he wanted to declare him hostile. It is at that moment that he appears to have used the words, which are the subject-matter of this case. Admittedly the complainant was suspended pending an inquiry into his conduct in connection with the communal riots at Jalgaon on May 8, 1970. The accused is also alleged to have stated that the complainant was anti-Muslim and pro-Hindu and that is why he had been suspended by the Government and that he was soling to be dismissed for that. The accused said that he not only said that he was going to be dismissed for that but he also added at the end the words 'if the charge was proved against him' Mr. Pradhan hotly contends and says that the accused ought not to have used such words. But the complainant could only have been suspended for misconduct during the riots. The complainant has stated during the course of his cross-examination that there were no lights at all in the localities. He had also stated that the Muslim witnesses whose statements were recorded were also not panicky. This was a ease where there were some inconsistencies in the evidence of the Muslim witnesses and therefore the public prosecutor was anxious to disclose the reasons as to why there were these inconsistencies. It is in the light of such mental approach when the complainant during the course of his cross-examination although a formal witness said a contrary thing, that he was triggered to tell the Court what he said. In such circumstances the accused can have no personal animus towards the complainant Police Inspector. There is nothing on record to show that there was any act on the part of the accused to malign the complainant for any untoward motive. I have no doubt that the accused while conducting the sessions case as a Special Public Prosecutor had to say all this because of the unexpected disclosure by the complainant in his cross-examination. Even if it is granted that his statement that the complainant was pro-Hindu and anti-Muslim was not true, yet in a case which was as a result of Hindu-Muslim riots when quite a number of Muslims had lost their lives the Special Public Prosecutor anxious to bring home the guilt to the accused can say all that was said especially when he found that the complainant was giving evidence which he thought could not be true.
13. In Kamalini v. Union of India  Mah. L.J. 823: 69 Bom. L.R. 512, the privilege in judicial proceedings 'was discussed. It was held that, advocates, Judges, witnesses and parties have absolute privilege for the words spoken during the course of judicial proceedings and that claim for damages was not maintainable as the statements were made on an occasion which was absolutely privileged. The rule of absolute privilege is based on sound public policy to enable a Judge, party, witness, counsel or attorney to discharge his duty with a free mind uninfluenced by any fear of being used for defamation. The accused in this case was conducting a sessions case. He must have read all the records of the case including the police statements of different witnesses and also of the investigating officer. He must have also been instructed for conducting the case properly. When in the midst of the trial after noticing the complainant saying something which according to the accused was hostile to the prosecution if- he (accused) said something for declaring him so, he surely cannot be hauled up for defamation.
14. Mr. Pradhan invites my attention to Sukra Mahto v. Basudeo Kumar : 1971CriLJ1168 , and contends that in order to claim good faith in a prosecution for defamation the accused must show that before making an alleged imputation he had made an inquiry with due care and attention and that he was satisfied about the truth of that imputation. This proposition is certainly true in other cases but not true in a case in which the advocate was compelled to talk in Court while conducting his case. Mr. Pradhan also invites my attention to Chamm Lai v. State of Punjab. : 1970CriLJ1266 . That is also a case based on its own facts and any observation there will not help him.
15. This is a case of a Special Public Prosecutor against whom the complainant Police Inspector has brought a charge of defamation. In the ordinary course no action can lie against an advocate for defamatory words spoken with reference to and in course of an inquiry before the Court because that is done for the purpose of protecting the interests of his client. His client always trusts him at times for fortune and character and life. The advocates therefore should have privilege in respect of liberty of speech in Court. If his liberty is restrained beyond a, certain limit, then it may be disastrous to the interest of his client. Normally there cannot be any express malice and if that is so, then having due regard to the public policies the Courts should be extremely cautious if they deprive the advocate of the protection of the ninth exception. The Court normally ought to also presume that the advocate acts in good faith and upon instructions and ought to require the other party prove express malice.
16. I think the learned Sessions Judge was also right when he found that the order of conviction passed by the learned Magistrate was bad' even on the ground of want of sanction. In the absence of previous sanction under Section 197, Criminal Procedure Code conviction can easily be said to be bad. The accused who was a Special Public Prosecutor was a public servant and the words used by him can easily be said to have been used while acting or purporting to act in the discharge of his official duties. But Mr. Pradhan says that he can-not certainly use the defamatory language or abusive words while discharging his duties. According to Mr. Pradhan it is not a part of the Special Prosecutor's duty to abuse a witness in Court. If that is so, then according to Mr. Pradhan sanction was not necessary at all. It is, however, difficult for me to accept this contention for the obvious; reason that whatever language he used in Court can easily be said to have been used while discharging his duties as a public prosecutor. If that is so, the order of the learned Sessions Judge even on that count is proper.
17. In the above view of the matter this appeal must fail.
18. I, therefore, confirm the order passed by the learned Sessions Judge, Jalgaon and dismiss this appeal filed by the complainant.
19. Mr. Pradhan, the learned advocate for the appellant requests that leave be granted to appeal to the Supreme Court. As I do not think there is any question of law of general importance involved in this case, I reject the request.