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Gajanan Laxman Bhalchandra Vs. Rangrao Amrutrao Deshpande and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 1073 of 1979
Judge
Reported in(1981)83BOMLR12; 1980MhLJ821
ActsIndian Penal Code (IPC), 1860 - Sections 34, 109, 499 and 500; Evidence Act, 1872 - Sections 138, 143, 148 and 149
AppellantGajanan Laxman Bhalchandra
RespondentRangrao Amrutrao Deshpande and ors.
Appellant AdvocateA.V. Sawant, Adv.
Respondent AdvocateS.S. Badve, Adv. for respondent No. 1 and ;J.A. Barday, P.P., for State-respondent No. 3
DispositionPetition allowed
Excerpt:
.....-- indian evidence act (i of 1872), sections 138, 148 and 149.;converting some questions put in cross-examination by an advocate into a substratum for a singularly strange charge of criminal offence against an advocate would be virtually akin to abvise of judicial process and rank nothing short of stultifying the very dynamic art of cross-examination and rendering its object nugatory and infructuous.;though the rights and privileges of an advocate are not absolute but qualified, he should not, in the exercise thereof, be unduly fettered. even in the discharge of his duties to his client and to the court, he should, by and large, be allowed to function according to his own sense of right and wrong, subject, of course, to the paramount principle that none is above the law.;no alert..........one rangrao amrutrao deshpande, a witness for the prosecution. in the course of this cross-examination some of the questions put and constituting the subject-matter of the instant proceedings were :'q.1: you are trying to defame n.k. deshmukh by hook or crook?q.2: you have caused the municipal council to purchase land by using your influence?q.3: you are in the habit of blackmailing the municipal council president by publishing defamatory and sensational matters?'answers thereto were as follows :'a.1: it is not true to say that since my defeat i am always trying to defame n.k. deshmukh as the president by hook or crook. a.2: it is not true to say that i caused the municipal council to purchase my land using my influence. a.3: it is false to suggest that i am in habit of.....
Judgment:

S.C. Pratap, J.

1. This petition under Article 227 of the Constitution challenges the legality, propriety and validity of a most surprising, if not also a shocking order passed by the learned Judicial Magistrate, First Class, Ambejogai, directing issue of process under section 500 of the Penal Code against the petitioner herein Gajanan Laxmna Bhalchandra, a senior Advocate practising at Ambejogai, District Beed.

2. Pending before the learned Judicial Magistrate was Criminal Case No. 840 of 1977 filed by one Motilal Shankarlal Zanver against twenty-two accused persons under section 500 read with sections 109 and 34 of the Penal Code. These accused were represented by their Advocate the petitioner herein. While in charge of the defence, he was cross-examining one Rangrao Amrutrao Deshpande, a witness for the prosecution. In the course of this cross-examination some of the questions put and constituting the subject-matter of the instant proceedings were :

'Q.1: You are trying to defame N.K. Deshmukh by hook or crook?

Q.2: You have caused the Municipal Council to purchase land by using your influence?

Q.3: You are in the habit of blackmailing the Municipal Council President by publishing defamatory and sensational matters?'

Answers thereto were as follows :

'A.1: It is not true to say that since my defeat I am always trying to defame N.K. Deshmukh as the President by hook or crook.

A.2: It is not true to say that I caused the Municipal Council to purchase my land using my influence.

A.3: It is false to suggest that I am in habit of blackmailing the President of Municipal Council by publishing defamatory and sensational matters. The letter now shown to me (photo static copy) was sent by me to the present President by registered post. Its contents are correct.'

3. On the basis of the these questions witness Deshpande filed against Advocate G.L. Bhalchandra as accused No.1 and one B.K. Deshmukh as accused No. 2 Criminal Case No. 894 of 1979 under sections 500, 501 and 109 of the Penal Code. The trial Magistrate dismissed the said complaint against accused No. 2 but as against accused No.1 Advocate G.L. Bhalchandra process was issued under section 500 of the Penal Code. Hence this petition.

4. Hearing Mr. A.V. Savant, the learned Advocate for the petitioner, Mr. S.S. Badve, the learned appearing for respondent No. 1, R.A. Deshpande, the original complaint, and Mr. J.A. Barday, the learned Public Prosecutor for the State, we have no hesitation in quashing the impugned order and dismissing the complaint in question.

5. We are astonished not only at the proceedings taken out by the complainant but also at the trial Magistrate's order directing process against the Advocate. Considering the nature of the original defamation proceedings instituted by Motilal Zanver and the consequent nature of evidence thus relevant and requisite therein, we find the questions supra put therein to witness Deshpande in his cross-examination fully justified. That these questions and/or the answers there to may ultimately happen to result in no gain to the concerned party is altogether beside the point. But converting such questions into a substratum for a singularly strange charge of criminal offence against the Advocate would be virtually akin to abuse of judicial process and rank nothing short of stultifying the very dynamic art of cross-examination and rendering its object nugatory and infructuous. The very weapon of cross-examination would stand scuttled. Cross-examination is not a mere continuation of examination-in-chief nor is it in all cases and circumstances supposed to fall within the routine strait-jacket formula as of examination-in-chief. Indeed, to the contrary. It is a very effective instrument and a powerful searchlight to draw out the truth and further the cause of justice. Its object inter alia is to impeach the very credit of the concerned witness and shake his entire testimony. Such impeachment, even assuming it not to have a direct link or nexus with the alleged offence, is nevertheless an important and a relevant element in a case of defamation. Though the rights and privileges of an Advocate are not absolute but qualified, he should not, in the exercise thereof, be unduly fettered. Even in the discharge of his duties to his client and to the Court, he should, by and large, be allowed to function according to his own sense of right and wrong, subject, of course, to the paramount principle that none is above the law.

6. This position also accords with the legislative intention crystallized in the Evidence Act. The relevant scheme thereunder shows that cross-examination need not be confined to the facts to which the witness testifies in his examination-in-chief (section 138). Under section 143 of the said Act, even leading questions may be asked in cross-examination. Again (vide section 146), a witness may be asked any questions which tend not only to test his veracity and not only to discover who he is and what is his position in life but also to shake his credit, by injuring his character, although the answers to such questions might tend to criminate him or might expose him to a penalty or forfeiture. Furthermore (vide section 148), questions containing imputations which, if true, would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies, and are proper questions even if these relate to a matter not otherwise relevant. Under section 149 of the said Act, the person asking such question as referred to in section 148 would have reasonable grounds for thinking that the imputation which it conveys is well founded. In this respect, the case of the petitioner Advocate Bhalchandra stands covered by illustration (b) to section 149. We are also in this case satisfied that Advocate Bhalchandra was not at all actuated by bad faith or any motive of private malice or any extraneous consideration personal to himself. His action is protected also by the Ninth Exception to section 499 of the Penal Code.

7. In all these circumstances, questions put to witness Deshpande by Advocate Bhalchandra cannot in the least be said to be unwarranted or irrelevant or of a defamatory nature or beyond the legitimate scope of cross-examination Indeed, far from all this. To hold otherwise would nullify the paramount importance and value attached to cross-examination. No alert Advocate worth his salt is expected to cross-examine a witness in a manner meek and submissive and regardless of his duty to his client and to the administration of justice. Indeed, he would be falling in his duty if, even after being properly instructed (as Mr. Bhalchandra was in this case) in a full-fledged manner together with cogent written materials, he does not put questions based thereon to the concerned witness. We find Advocate Bhalchandra doing nothing more than acting in the best traditions and discharging his professional duties to the best of his ability. We do not find that in the process he has in any manner exceeded his role as an Advocate put in charge of the defence. Filing of the instant complaint against him strikes to us as something most unusual. Impression cannot be said to be unfounded that its object was to deter the Advocate from performing his duty boldly and fearlessly.

8. In this view of the matter that we take, the impugned order against Advocate Bhalchandra pre-eminently deserves to be set aside and quashed and the impugned complaint deserves to be dismissed.

9. The present petition also prays for action against respondent No.1 Rangrao Amrutrao Deshpande under the Contempt of Courts Act. We may observe that prima facie the action of respondent No.1 in filing, during the pendency and in respect of a live judicial proceeding, a criminal complaint against Advocate Bhalchandra on the basis of certain questions in cross-examination put to a witness in the said live judicial proceedings may also amount to interference with and/or obstruction in the course of administration of justice. We, however, do not propose to decide this question, as the same is not pressed by the learned Advocate Mr. A.V. Savant.

10. In the result, this petition succeeds and is allowed. The impugned order dated 20th July, 1979 passed by the learned Judicial Magistrate, First Class, Ambejogai, issuing process under section 500 of the Penal Code against the petitioner herein Gajanan Laxman Bhalchandra is set aside and quashed and Criminal Case No. 894 of 1979 filed against him is dismissed. Rule earlier issued on this petition is made absolute.


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