1. This second appeal, the facts of which are substantially the same as the facts in the Second : AIR1946All204 with which we have already dealt, raises a question of interest and importance. The facts have already been set out in detail, in our judgments in the other appeal, and for the present purpose it will not be necessary to set them out again. The suit out of which this appeal arises is a suit for damages for defamation. The plaintiff, Sheo Dutt Sharma, is an agent of the Hindustan Co-operative Insurance Society Limited of Calcutta and is resident at Nagina. His father, Ram Sarup Shastri, is a Professor of Sanskrit of the Aligarh University and lives at Aligarh. The father owned certain premises within the jurisdiction of the Munsif of Nagina and he had occasion to bring a suit against a neighbour - one Baldeo Sahai - upon cause of action in trespass relating to his premises.
For the purpose of conducting these proceedings before the Munsif of Nagina, Rain Sarup Shastri, not unnaturally, employed his son as his pairokar or agent. He accordingly began his suit for trespass against Baldeo Sahai by a plaint in January 1939.
2. The defendant, Baldeo Sahai, engaged a certain B. Sumat Prasad Jain, an advocate practising at Nagina, to defend the suit and in due course, on 27th March 1939, Sumat Prasad Jain delivered a written statement. This written statement in para. 2 of the 'special pleas,' contained the following passage:
2. That the plaintiff has no cause of action foe the present suit. All the allegations as to the arising of the cause of action are wrong and the suit of the plaintiff is liable to be dismissed. The present suit has been filed at the instigation of Bhagwan Das, brother of the plaintiff, and an opponent of the defendants, in collusion with Sheo Dutt an 'awara' son of the plaintiff in order to harm the defendants.
3. I need hardly say that this passage of the written statement was a piece of idle and provocative pleading, which had no relation to the real issues in the suit and should have been struck out as being unnecessary and scandalous. It is common ground that*the word 'awara' is an expression which is highly offensive and bears a meaning indicative of a 'vagabond.' It is not, I think, denied that its application to a person of normal reputation and standing would be prima facie defamatory of him. Nor, be it said to the credit of the present defendant-appellant, has any attempt been made to justify its application in the written statement to Sheo Dutt Sharma. I need not relate the unfortunate proceedings which followed culminating in an application to the High Court which have been dealt with in the other appeal. The suit out of which this appeal arises is a simple suit by Sheo Dutt Sharma against Baldeo Sahai and his advocate, B. Sumat Prasad Jain, who is the present appellant-defendant for damages for defamation by reason of the application of the epithet 'awara' to the plaintiff in para. 2 of the written statement in the suit mentioned above. The suit was tried in the first place by the Munsif of Nagina, who dismissed it on the ground, so far as is now material, that the defendant-appellant was protected by an absolute privilege against any liability for defamation in respect of anything in a pleading drawn by him in his capacity as an advocate. In first appeal the Additional Civil Judge of Bijnore reversed the decree of the Munsif giving the plaintiff a decree for damages on the ground that the use by the defendant-appellant of the defamatory word in the written statement was not privileged, since, in the view he took, it was irrelevant to any issue in the suit. That, as I understand it, stated in its briefest terms, is the matter which we have now to consider in second appeal.
4. The question is one which is important not only because it affects the interests of litigants and of the legal profession, but because it appears to be the subject of some difference of opinion in Indian Courts. The question of the privilege, where it exists, of Judges, witnesses, litigants and counsel in relation to legal proceedings has been often considered both in England and in India, and the protection they enjoy in respect of statement made by them in the course of legal proceedings has in many cases been compendiously discussed as a privilege covering them all. I find it necessary, however, to remind myself at the outset of the consideration of this case that we are here dealing with a case of the privilege, if any, attaching to a member of the Bar, acting in his professional capacity and in the course of proceedings for which he has been engaged by his client. There may, therefore, be other considerations to be borne in mind in addition to or outside those considerations which relate to the witnesses or parties, or indeed, to the Judge himself. Inasmuch as the principles of litigation in India, and in particular the practice and status of members of the Bar in India, have been closely modelled on English law and practice, it is right to approach this case by considering the position in English law, and then by seeing whether that law applies to India and, if it does not apply to India, why it does not apply. Under the English law, I think, there could be little doubt that a statement in a pleading drawn and signed by counsel in reference to the proceedings in which he was engaged would be entitled to an absolute privilege. In King v. Skinner (1876) 98 E.R. 529 Lord Mansfield, in a passage which has often been referred to, said:
'...neither party, witness, counsel, jury or Judge, can be put to answer, civilly or criminally, for words spoken in office. If the words spoken are opprobrious or irrelevant to the case the Court will take notice of them as a contempt, and examine on information. If anything of mala mens is found on such inquiry it will be punished suitably....
5. It will be seen that this general statement of the position by Lord Mansfield covers both civil and criminal liability, and leaves to the Courts themselves, in their domestic jurisdiction in contempt, the exclusive right to deal with cases in which the privilege is abused. The next case to be referred to is the well known case in Seaman v. Netherelift (1876) 1 C.P.D. 540. That was a case of witness. The defendant, who was a handwriting expert, had given evidence in certain proceedings and his evidence had been adversely criticised by the Judge. In subsequent and different proceedings the same handwriting expert was again called as a witness and in cross-examination for the purpose of discounting his evidence, he was asked whether his attention had been drawn to what had been said about him by the Judge in the previous case. He at once asked the Presiding Magistrate to be allowed to make a statement as regards the previous case, but the Magistrate did not permit him to do so. Nevertheless, apparenlty after leaving the witness-box, he insisted on doing so and he said: 'I believed that will,' referring to the will in the previous case, 'to be a rank forgery, and shall believe so to the day of my death.' He was thereupon sued in tort for defamation by an attesting witness of the will. Lord Coleridge, Lord Chief Justice of the Common Pleas, entertained no doubt as to the absolute privilege belonging to the parties both in the pleadings and during the conduct of the case and he said that he conceived
the law on this point to be now quite certain, although most men of any experience in the profession must have seen many instances in which judicial proceedings have been made by parties to them to serve the ends of private malignity. It is equally certain, however, nor has any question ever been raised that the privilege of parties is confined to what they do or say in the conduct of the case.
Lord Coleridge was referring in that passage to the parties themselves, as is clear from what immediately follows:
It is not necessary to discuss the case of counsel but it may be observed that their privilege is at least not greater than that of the parties, and that it may be less for, it has never yet been decided that they would not be subject to an action for words spoken even during the conduct of a case, if the words were irrelevant, mala fide, and spoken with express malice, all which qualities in the words, it is to be observed, are and must be questions of proof, and for the jury.
6. This case came in appeal before Lord Chief Justice Cockburn, Sir George Bramwell and Sir Richard Amphlett, Seaman v. Netherclift (1876) 2 C.P.D. 53. The decision before Lord Coleridge had turned on the verdict of the jury that the words spoken by the witness had been uttered by him, not as a witness, but in a lay capacity and with malice. In the Court of appeal, however, the view was taken that what he said was said 'in his character of witness' and it was held accordingly that he was absolutely privileged. The Chief Justice in the course of his judgment observed that:
If there is anything as to which the authority is overwhelming it is that a witness is privileged to the extent of what he says in course of his examination. Neither is that privilege affected by the relevancy or irrelevancy of what he says for then he would be obliged to judge of what is relevant or irrelevant, and questions might be, and are, constantly asked which are not strictly relevant to the issue.... But I agree that if in this case, beyond being spoken maliciously, the words had not been spoken in the character of a witness or not while he was giving evidence in the case, the result might have been different. For I am very far from desiring to be considered as laying down as law that what a witness states altogether out of the character and sphere of a witness, or what he may say dehors the matter in hand, is necessarily protected.... Or if a man when in the witness-box were to take advantage of his position to utter something having no reference to the cause or matter of inquiry in order to assail the character of another...it certainly might well be said in such a case that the statement was altogether dehors the character of witness, and not within the privilege.
7. That refers to the privilege of a witness. In the equally well-known case of Munster v. Lamb (1883) 11 Q.B.D. 588 in the Court of Appeal in 1883 the question of the privilege attaching to an advocate was discussed. The facts in this case were peculiar. A woman was being tried at petty Sessions at Brighton for having unlawfully administered drugs to the plaintiff's servants. The defendant was a solicitor who was acting as the advocate of the woman at the trial. During the hearing before the petty Sessions and while acting as the advocate of the accused, the defendant made observations relating to the plaintiff who himself happened to be a Barrister imputing to him that he kept a stock of drugs in his house for an immoral purpose. The solicitor was then sued in defamation. It may be taken that the expressions used by the solicitor were defamatory and had no foundation whatever. No attempt was made either to justify or excuse them. At the trial Sir James Mathew, holding the defendant to be covered by an absolute privilege, explained the reason of that privilege in these words:
It may be inconvenient to individuals that advocates should be at liberty to abuse their privilege of free speech, subject only to animadversion or punishment from the presiding Judge. But it would be a far greater inconvenience to suitors if advocates were embarrassed or enfeebled in endeavouring to perform their duty by the fear of subsequent litigation. This consequence would follow, that no advocates could be as independent as those whose circumstances rendered it useless to bring actions against them. The passage in Seaman v. Netherelift (1876) 1 C.P.D. 540 [this is the passage from the judgment of Lord Coleridge to which I have referred-above] upon which Mr. Waddy relied was not, as it seems to me, intended to qualify the statement of the law contained in the earlier judgments relied upon for the defendant. All that was intended to be laid down was this, that, for defamatory statements made by an advocate outside his office of advocate and with no reference to the subject before the Court, and which, therefore, were necessarily made in bad faith and were irrelevant, a. counsel might be proceeded against in an action.
8. The Master of the Rolls, Sir William Brett, took the same view in the Court of Appeal Discussing the privilege of counsel, he said:
If upon the grounds of public policy and free administration of the law the privilege be extended to Judges and witnesses, although they speak maliciously and without reasonable or probable cause, is it not for the benefit of the administration of the law that counsel also should have an entirely free mind? Of the three classes - Judge, witness, and counsel - it seems to me that a counsel has a special' need to have his mind clear from all anxiety. A. counsel's position is one of the utmost difficulty. He is not to speak of that which he knows he is not called upon to consider, whether the facts with. which he is dealing are true or false.... The rule of law is that what is said in the course of the administration of the law, is privileged; and the reason of that rule covers a counsel even more than a Judge or a witness. To my mind it is illogical to argue that the protection of privilege ought not to-exist for a counsel who deliberately and maliciously slanders another person. The reason of the rule is, that a counsel, who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him. If the rule of law were otherwise, the most innocent of counsel, might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel' are included who have been guilty of malice and-misconduct.... Into the rule thus stated the word 'counsel' must be introduced, and the rule may be taken to be the rule of the common law. That rule is founded upon public policy. With regard to counsel, the questions of malice, bona fides, and relevancy, cannot be raised, the only question, is, whether what is complained of has been said in. the course of the administration of the law. If that be so, the case against a counsel must be stopped at once. No action of any kind, no criminal prosecution, can be maintained against a defendant, when it is established that the words complained of were uttered by him as counsel in. the course of a judicial inquiry, that is, an inquiry before any Court of justice into any matter concerning the administration of the law.
9. I draw attention to the width of this privilege, at any rate as it exists in English. law and that it extends to everything that is said by an advocate 'in the course of the administration of the law' with reference to the case in which he is engaged. Lord Justice Pry agreed, and expressed the reason of the rule as being
not a desire to prevent actions from being brought in oases, where they ought to be maintained...but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions....
10. As I understand the principles so enunciated, they mean, that, on grounds of public policy, an advocate, acting professionally in a cause, is absolutely protected from a suit for defamation for words spoken or written in his professional capacity in the course of the administration of the law in respect of that cause even though the words are uttered without justification and maliciously and are irrelevant to any issue then before the Court. The learned Master of the Rolls and Lord Justice Fry in (1883) 11 Q.B.D. 588 have expressed the absolute character of the privilege attaching to counsel in terms wider than those in which Lord Coleridge and the Lord Chief Justice expressed the privilege of witnesses in Seaman v. Netherclift (1876) 1 C.B.D. 540 and I think with respect that they did so with good reason since the privilege which the public interest requires to be conceded to counsel is not necessarily limited by the privilege of witnesses. The only two other English cases to which I desire to refer are Bottomely v. Brougham (1908) 1 K.B. 584 and Rodriguez v. Speyer Brothers 1919 (1919) A.C. 59. In Bottomely v. Brougham (1908) 1 K.B. 584 a case in which the defendant was the senior Official Receiver under the Companies Acts - Channel J., explained that he thought that the expression 'privilege' was misleading, since the law conferred on a Judge, a witness or an advocate no private right to be malicious. He said that:. The real doctrine of what is called 'absolute privilege' is that in the public interest it is not desirable to inquire whether the words or acts of certain persons are malicious or not. It is not that there is any privilege to be malicious, but that, so far as it is a privilege of the individual - I should call it rather a right of the public the privilege is to be exempt from all inquiry as to malice; that he should not be liable to have his conduct inquired into to see whether it is malicious or not - the reason being that it is desirable that persons who occupy certain positions as Judges, as advocates, or as litigants should be perfectly free and independent, and to secure their independence, once, that their acts and words should not be brought before tribunals for inquiry into them merely on the allegation that they are malicious.
11. In Rodriguez v. Speyer Brothers (1919) 1919 A.C. 59 (ubi supra) Lord Atkinson said in the House of Lords that:.the well established rule of law which throws the protection of an absolute privilege around the observations of a Judge while presiding in a Court of justice, of an advocate while speaking, there on behalf of his client, of a witness while giving his evidence there,...is also based upon a principle of public policy - namely, this that it is more for the public good that private individuals should be made to suffer in pocket or repute by the observations of the individuals I have named than, that these latter should, by fear of hostile litigation, be deterred from speaking their mind freely when discharging their respective duties.
12. These cases, which explain the principles of, and the reasons for, the English law relating the absolute privilege of Judges, advocates, witnesses and parties in litigation, relate to the spoken word, in a Court of law but I cannot doubt that the same principles apply to the written word when contained in pleadings and other documents' drawn by counsel acting in a professional capacity. And conformably with these principles, I should not doubt that in the present' case in English law the defendant-appellant would have been protected by the absolute privilege of his profession from the present suit. I think that, if the same principles apply in India, a conclusive answer to this suit would have been that the drafting and service of a written statement is an act performed by an advocate in his professional capacity and, that being so, following the reason of Channell J., in Bottomely v. Brougham (1908) 1 K.B. 584 it is not open to any Court to inquire what motive may have inspired the defendant-appellant to make use of the opprobrious-term 'awara' in relation to the plaintiff. It may be convenient at that point to say that in fact the defendant-appellant has pleaded in the suit that his instructions-given him by his client were that the plaintiff had no defined means of livelihood and lived separate from his father and idled away his life. Assuming that the defendant enjoyed an absolute privilege in respect of his draft of the written statement, I should1 not have thought that it was necessary to have inquired what his instructions from his client were, nor do I think that either he or his client should have been compelled to disclose them. But, accepting it that they are in evidence, I should have some difficulty in finding on the facts of this case that the expression used by the defendant amounted to more, putting it at its highest, than an exaggeration of the actual instructions he had been given. If, however, an absolute privilege attaches to him, I do not think the point could ever properly be reached of examining what his instructions were, assuming, as I must assume, that the drafting and delivery of a written statement are part of the professional work of an advocate in a cause in these Provinces.
13. But it remains to be seen whether in India the law as it stands affords to an advocate the same absolute privilege as is extended to him under the English law. The first case to which our attention has been drawn is Nathji Muleshvar v. Lalbhai Ravidat ('90) 14 Bom. 97. In this case an action to recover damages for slander was brought against the defendants. The defendants to the defamation suit were themselves actually the defendants to the suit in which the alleged defamation arose and the plaintiff in the defamation suit was himself the plaintiff to that suit. In the course of the suit, the defendants put on the file an application containing a defamatory statement of the plaintiff and the plaintiff duly sued for damages for defamation. The learned Chief Justice of Bombay referred to the observations of Lord Coleridge in Seaman v. Netherclift (1876) 1 C.P.D. 540 and said that it was settled law in England that no action for slander lay for any statement in the pleadings or during the conduct of a case and he went on to observe:
We doubt whether there is anything in the circumstances of this country which makes it leas desirable from the point of view 'of public policy as concerning the public and administration of justice' as it is expressed by the Privy Council in the case above cited, that such statements, though false and malicious, should in no case be made the subject of civil action quite independently of the question as to their being criminally punishable.
14. The case referred to in Privy Council was Baboo Gunesh Dutt Sing v. Mugneeram Chowdhry ('73) 11 Beng. L.R. 321 (P.C.) in which it had been held that the absolute privilege of witnesses applied equally in India as in England. In the above passage from the judgment of the learned Chief Justice of Bombay the words in italics 'independently of the question as to their being criminally punishable' are of some significance since it has been contended that Section 499, Penal Code, in defining criminal defamation gives no immunity by way of exception to any of the classes of persons including members of the Bar whom we are now discussing. Prom that it has been reasoned in some cases that it would be absurd to suppose that there should be an immunity from civil proceedings but not from criminal proceedings and that for that reason it must be assumed that the same absolute privilege against civil liability does not exist in India as in England. It is, however, clear that this was present to the mind of the learned Chief Justice of Bombay who said that, quite independently of the question of criminal liability, he saw no reason to suppose that the immunity of a party from a civil action was less in India than it was in England. In 1917 in our own High Court this question came before a Bench of five Judges in Chunni Lal v. Narshigh Das ('18) 5 A.I.R. 1918 All. 69. This was a case of the privilege of parties. A pleader had occasion by a complaint of 24th September 1913 to charge his own client with defamation under Section 499, Penal Code. This complaint was dismissed on the ground that it was covered by the ninth exception to Section 499, Penal Code. Thereupon the respondent to the foregoing complaint brought a civil action for damages for libel against the complainant in respect of alleged defamation in the complaint of 24th September 1913. The report is a little confusing in reference to the present case with which we are dealing, since the plaintiff and defendant in that case happened to be, or rather formerly to have been, pleader and client. The case, however, does not turn on any privilege of counsel as such but merely on the privilege of parties. Nevertheless, in this case, it was clearly argued that the whole of the principles of English law relating to absolute privilege against civil liability in litigation applied as much in India as in England, notwithstanding Section 499, Penal Code. On the one side it was said that there was no reason why the principles and tests of the Indian Penal Code should be introduced into a civil action for damages for defamation, or, to put it shortly, that it could not be supposed that the Indian Penal Code, a purely criminal statute, had altered the civil law relating to the absolute privilege of parties to litigation. On the other hand, it was argued that, so far as Indian law was concerned, the Indian Penal Code had not accepted the wide principles of English law and that, therefore, the Indian law relating to absolute privilege should be governed rather by the principles enunciated in the Indian Penal Code as matters of justice, equity and good conscience, than by the principles, however well established, of English law. The question, therefore, which had been present to the mind of the learned Chief Justice of Bombay, was expressly raised before this Full Bench of our own Court. At the outset of their judgment the learned Judges at page 351 of the report went out of their way to make it clear that they were dealing with a case of civil suit for defamation, thereby emphasising that, whatever might be the law applicable to criminal proceedings under Section 499, Penal Code, the law relating to absolute privilege in relation to defamation in civil proceedings might be quite different. With this in their minds their Lordships came to the conclusion that there was an absolute privilege protecting a party - in this case the complainant - from damages in a civil suit for a defamatory statement made in this complaint and that the law of England did apply in India. They said:.the learned advocate for the respondent has failed to show us what there is in the circumstances and society of this country that will make it improper or inadvisable to apply the English rule. It is suggested that the mass of the population is uneducated and more impulsive and sensitive, and therefore more likely to take the law into its own hands if it cannot get redress for defamation, and that, therefore, it would not be sound public policy to enforce the English rule. We do not think that these are weighty reasons. The English law does not seek to protect dishonest parties, witnesses or advocates, but deems it a lesser evil that they should escape than that the great majority of hone3t parties, witnesses and advocates should be exposed to vexatious actions. Unless it can be said that the great majority of these classes in India is dishonest, there can be no good reason against applying the same rule in this country. Needless to say this has not been urged before us, and in this instance we consider 'that what is sound public policy in England is equally sound policy in India and that the rule of English law is in accordance with the principles of justice, equity and good conscience.'
15. This Full Bench of the Allahabad High Court had itself succeeded a previous case in 1907, Ganga Prasad v. Banka Lal ('07) 29 All. 685, which was a casa relating to the criminal liability of a witness for defamation by statements made in the witness-box. This case was concerned with criminal liability only, but even so, had given rise to a conflict of opinion in the Court. Two of the learned Judges (one of whom was Knox J., who subsequently presided over the Full Bench in 1917) had reached the conclusion that there vested by reason of Section 499, Penal Code, a criminal liability on a witness in respect of statements made in the course of his depositions. This lends considerable force to the subsequent Full Bench case in 1917 with which I have dealt above, in which the learned Judges, including Knox J., draw so marked a distinction between a civil suit for defamation and criminal proceedings. It makes it all the more certain-that these Judges at any rate were prepared to contemplate a difference in law between the absolute privilege of a witness or a party for the purpose of criminal liability for defamation under Section 499, Penal Code, on the one hand and civil liability for slander or libel on the other hand. But it is to be observed that even in Ganga Prasad v. Banka Lal ('07) 29 All. 685 the third of the learned Judges, Richards J., even then held that for the purpose of criminal liability also there was an absolute privilege against defamation in favour of a witness. He said that in his view
it will be simply disastrous to the administration of justice in this country if a prosecution could be instituted against every witness who gave evidence in a Court of justice for defamation.
This learned Judge, at any rate, held a decided view that Section 499, Penal Code, had made no alteration to the absolute privilege of a witness and he was prepared to extend the English rule of absolute privilege to the consequences of defamation, criminal as well as civil. Decisions in this Court since 1918 are a little uneven. In 1928 the question again came before a Bench of the Court in Rahim Bakhsh v. Bachcha Lal : AIR1929All214 . That case arose in somewhat peculiar circumstances. A merchant was in the course of being tried for an offence under the Penal Code. The complainant was under cross-examination and was asked whether the merchant's firm was a large one. He replied that it was. Thereupon the complainant's (i.e. the witness's) own mukhtar, who was in Court representing the complainant, interjected words to the effect that it was 'also the most dishonest firm in the city'. The merchant sued the mukhtar for defamation. It may be assumed for the present purpose that the words were defamatory. The five Judge Full Bench in Chunni Lal v. Narsingh Das ('18) 5 A.I.R. 1918 All. 69 discussed above was never referred to at all and the learned Judges - Sen and Niamat Ullah JJ., - came to the conclusion that there was no absolute privilege protecting the mukhtar and that he was liable in damages for defamation without regard to any question of bona fides. In the course of the judgment the learned Judges observed that the rules of English common law ought not to be applied in India without regard to the dissimilarity in the conditions of the two countries, from which it is to be inferred that they held the view that there were conditions in India which did not justify the extension of an absolute privilege in the course of civil litigation to the legal profession in. India. They say that:
The common law of England has rarely been applied in deciding oases relating to slander outside the presidency towns. In the absence of any statutory provision, 3uits for damages founded upon tort, and more especially which are based upon slander, have to be decided according to the principles of justice, equity and good conscience and in the light of judicial principles to be found in the decisions of eminent English Judges and recognised jurists which are broad based upon human nature and common experience of mankind.
It is unfortunate that the learned Judges had not before them the decision of the Pull Bench of their own Court which had applied the common law of England to a case of a civil suit for slander, but accepting their view that the English law ought to be applied with caution in India, there is little in the concluding part of the foregoing passage which would exclude the propriety of examining the judicial principles which lie at the root of the absolute privilege accorded in England to counsel. The learned Judges, however, appear actually to have founded their decision on the opinion that the lawyer's interjection went beyond anything he could properly have made in the performance of his professional duties as his client's representative. They thought that it was 'uncalled for' and 'inopportune', and that it was not addressed to the Court, but rather to the world at large present in the court-room. It is possible that the decision might still be reconciled with the law as laid down in the Full Bench on that ground, but it is not altogether easy to see why, however irrelevant and improper the mukhtar's observation was, it was not made in the course of the administration of the proceedings in which he was engaged. I cannot help, with great deference, doubting whether a burden can be placed on counsel of discriminating between what is strictly 'necessary or called for in the prosecution of the case...then under inquiry.' This seems to me to be approaching closely the same state of affairs of which, in reference to a witness, the Lord Chief Justice spoke in the Court of Appeal in Seaman v. Netherclift (1876) 2 C.P.D. 53 when he said that
neither is that privilege affected by the relevancy or irrelevancy of what he says, for then he would be obliged to judge of what is relevant or irrelevant and questions might be, and are, constantly asked which are not strictly relevant to the issue....
Nor does it appear to me, with respect, to be consistent with the principle that it is-in the interests of the public to face the risk of entrusting to counsel an absolute-privilege rather than to expose them to the danger of their being circumscribed in their liberty of speech. Almost immediately after, wards in 1929 the same question came-before Bennet J., as a single Judge in another case, Ali Mohammad v. Manna Lal : AIR1929All972 . In this case the learned Judge was referred to the-Pull Bench decision but was not referred to the Bench decision of a few months earlier. The learned Judge, as he was bound to do, followed the Pull Bench and decided that words contained in a written application to the Court, being made in a judicial proceeding, were absolutely privileged. He-thought that, while the language of the Pull Bench was somewhat guarded, its intention was to apply the principles of English law to a case in which the question of civil liability for defamation arose out of words written or spoken in the course of a judicial proceeding. The most recent case in our own Court is another casa before a single Judge, Mahammad Isa v. Nazim Hussain : AIR1940All246 . This case was, however, a case of the criminal liability of a person making a statement in the course of judicial proceedings. Rachhpal Singh J., referred to the case in Ganga Prasad v. Banke Lal ('07) 29 All. 685 which I have already discussed, and followed, as he was bound to do, the decision of the two learned Judges from whom Sir Henry Richards dissented. That case is, of course, no authority in relation to an absolute privilege against a civil liability for defamation.
16. In the Allahabad High Court, accordingly, the law relating to the absolute privilege of parties, and I think of advocates also, against the civil consequences of written or spoken words published by them 'in office' in the course of the administration of a cause is covered by the authority of the Full Bench of five Judges in 1917 reinforced by the views of Sir Henry Richards and Sir Edward Bennet. Unless the decision of the Bench consisting of Sen and Niamat Ullah JJ., in 1928 is to be consider, ed as at variance with the view of this Pull Bench, the only question that remains is to fix the boundary of relevancy at which the privilege of an advocate ends. As the learned Lord Chief Justice pointed out in Seaman v. Netherclift (1876) 2 C.P.D. 53 in reference to a witness, it is obvious that even in the presence of the Court a point can be reached at which departure from relevancy takes a witness's or even an advocate's words and actions altogether outside the realm of his office, and it is possible that to that extent motive might to some extent be material. But unless that boundary has been prima facie shown to have been crossed, my view is, as has been explained by Channell J. in Bottomely v. Brougham (1908) 1 K.B. 584, that no inquiry can properly be made as to the extent if at all, that an advocate has exceeded or departed from his instructions or has even acted from an improper motive. Upon the point of the fixing the boundary at which irrelevancy in an advocate amounts to an abandonment of his 'office', a learned Judge of the Madras High Court, Venkatasubba Rao J., in Duraiswami Thevan v. Lakshmanan : AIR1933Mad537 has observed that relevancy in relation to the absolute privilege which we are now discussing is not to be construed narrowly, but rather in the sense of 'having reference' or being 'made with reference' to the inquiry in the course of which the question arises. It is obvious that, even in a Court, a party, a witness or an advocate 'may say something which has no reference whatever to the proceedings going on, as, for instance, if a man were to come in at the door of the Court and the party, the witness or the advocate were to say him 'that man picked my pocket' obviously no question of privilege would arise, where such a statement were made not 'in office' at all. I respectfully agree with the learned Judge that this is true sense in which the word 'relevance' has to be construed. In Seaman v. Netherclift (1876) 2 C.P.D. 53 Bramwell J., who was the author of the illustration suggested above, said:
As to the first proposition I am by no means sure that the word 'relevant' is the beat word that could be used, the phrases used by the Chief Baron and the Lord Chancellor in Dawkins v. Lord Rokeby (1875) 7 H.L.C. 744 would seem to be preferable 'having referenoe' or made with 'reference to the inquiry'....
17. I do not propose to discuss the views of other High Courts at any great length but I do desire to refer briefly to three cases in the Calcutta High Court. The current of authority in the High Court of Calcutta has been, I think, less favourable to the absolute privilege than in our own High Court. In 1896 in Augada Ram Shaha v. Nemai Chand Shaha ('96) 23 Cal. 867, Sir Comer Petheram and Eampini JJ., after reviewing the authorities came to the conclusion that, whatever might be the case as regards a witness, no absolute privilege applied to an irrelevant defamatory statement made by a party in a pleading. The learned Judges said that they thought it impossible that a statement might be made the subject of a criminal prosecution for defamation by reason of Section 499, Penal Code, and, at the same time, be absolutely privileged as far as the civil Courts were concerned. In 1921 another Bench of the Calcutta High Court consisting of Sir N.R. Chatterjee and Suhrawardy JJ. came to the same conclusion with reference to a statement made by a party in a pleading. The learned Judges, after acknowledging that there was some divergence of judicial opinion in India, again favoured the view that it was not possible that a statement might be the subject of a criminal prosecution for defamation and yet be absolutely privileged so far as civil liability was concerned. But they again drew attention to the fact that the privilege of witnesses might possibly stand on a different footing, and I would myself suggest that the privilege of the advocate in India may equally be governed by considerations which do not necessarily apply either to witnesses or parties. In the latest case, however, in the Calcutta High Court which I have been able to find the absolute privilege appears to have been re-established. This is the case in Madhab Chandra v. Niroda Chandra : AIR1939Cal477 . That was a case in which a civil liability for defamation was sought to be established in respect of a report sent to the police alleging the commission of a crime and also in respect of evidence given in judicial proceedings in support of the same complaint. The learned Judges, after considering the authorities at great length including our own Pull Bench case in Chunni Lal v. Narsingh Das ('18) 5 A.I.R. 1918 All. 69, declined to accept the view that the absolute privilege in respect of civil liability had been destroyed by Section 499, Penal Code. Mukherjea J. said:.The reasoning upon which it is based is that there being no codified law relating to torts in British India, it is not always proper or safe to import in its entirety the rules of English law on the subject as principles of equity, justice and good conscience. The Court may very well look to the provisions of Section 499, Penal Code, as the rule to be followed even in a civil action for libel. No doubt, something can be said in support of this view and it is to some extent anomalous if certain statements are held to be privileged in civil Courts, though no such defence can be raised in criminal proceedings, I think, however, that it is not possible to pursue this line of reasoning, having regard to the pronouncement of the Judicial Committee in the case reported in Baboo Gunesh Dutt Sing v. Mugneeram Chowdhry ('73) 11 Beng. L.R. 321 (P.C.). There the Judicial Committee definitely invoked the principles of English law and held that the statements of the defendants as witnesses in the box were absolutely privileged and could not form the foundation of a libel suit. They did not take the provision o the Penal Code as criterion for determining as to what should be the extent of the privilege, for the witnesses under Section 499, Penal Code, do not enjoy an absolute immunity. Once the principle of English law is held applicable, I do not think that there is any justification for making a distinction between witnesses and parties....
18. It would appear from this passage that even in the Calcutta High Court there is no certain expression of opinion against the existence of an absolute privilege in favour of witnesses and parties, and still less should there be against the existence of such a privilege in favour of counsel and advocates. The defamatory epithet in the appeal before us is the word 'awara' applied to the plaintiff in a written statement drawn, and signed according to Order 6, Rule 14 of Schedule 1 to the Civil Procedure Code by the defendant, the advocate engaged on behalf of the defendant in the suit in which the pleading was delivered. In respect of that epithet the defendant has been sued in a civil suit for defamation. The question is whether he is protected by an absolute privilege by virtue of his office of advocate. In my opinion he is so protected, both on the authority of our own Full Bench case in Chunni Lal v. Narsingh Das ('40) 5 A.I.R. 1918 All. 69, which we are bound to follow, and, if I may say so with respect, because I think the principles which that case enunciates reflect both the public interest and the law of India.
19. So long as the interests of litigants in this country are entrusted to recognized and qualified professional men and so long as the Courts repose their confidence in the Bars which practise before them, I respectfully agree with Sir Henry Richards in thinking that it would be a disaster to the litigating public, both if the liberty of speech or action of their advocates were circumscribed by exposure to civil suits for words spoken or written in the course of the administration of cause entrusted to them, and if the Courts were by law compelled to withdraw their confidence from them. Such exposure would, I think, be calculated to limit their freedom and independence in their clients' interests to a greater extent than would be the case in England, if no absolute privilege existed there, since the risk of vexatious and often ruinous litigation in India is far greater. Nor do I perceive for what good reasons, so long as the same principles of the practice and administration of justice are maintained, or aimed at, in this country as in England the necessity for the maintenance of the absolute privilege of the Bar should be less. Indeed, there is the greater need for it in a country in which the advocate is exposed to larger risks of spiteful litigation. If it be said that conversely, the risk of the abuse of an absolute privilege is also greater, I should still maintain that it were better in the public interest that the immunity of the advocate should be sufficiently large to enable him to perform his duty fearlessly than that some relatively few cases of abuse should be made the subject of a just civil liability. If abuse occurs, as sometimes from inexperience and sometimes from less excusable causes is bound to happen, the remedy lies, I think, not in an alteration of the law relating to the privilege but in fostering high standards of practice, in the censure of the public and in the continuous vigilance of the Courts themselves.
20. In this High Court, the view has not been accepted that the definition of defamation contained in Section 499, Penal Code, has by inference affected the absolute privilege of witnesses, parties and advocates in respect of civil liability for words spoken or written by them in office in the course of legal proceedings in which they are engaged. Whatever may be the proper view of the effect of the Penal Code on the immunity of these classes from criminal proceedings for defamation and even if the exceptions to Section 499 of the Code are exhaustive - which are matters not falling to be considered in the case now before us-I should for myself be loath to think that the provisions of a criminal statute have altered or affected the civil common law as to the privilege of certain classes in litigation a privilege which existed, in India as in England, long before the Penal Code was enacted. If an anomaly has been created in consequence of Section 499, Penal Code, then I should rather accept it than admit either that established civil rights designed in the public interest can b& curtailed by mere analogies to be drawn from the Criminal Code or that the public can be deprived of the immunity accorded to their advocates in Courts of law at least from civil liability. But I should not wish to imply that there is no limit to the immunity of an advocate from the consequences of his words and acts in the causes he conducts. There comes a point at which 'irrelevance' in the sense in which it ha3 been explained above takes him outside his 'office' altogether. When that point is reached, he ceases to be an advocate even in a Court. At what point that stage is reached in any particular case, must necessarily vary with the facts. But, until it has been shown that what an advocate says or writes in the course of the administration of a suit is not said or written in reference to that suit, and is in the broad sense 'irrelevant' I should hold that, in his client's interest rather than in his own, he enjoys an absolute privilege. And, in my view at least, a prima facie case of irrelevance in the wide sense must be shown in the suit against him before his conduct can even be inquired into in a Court of law. When, however, irrelevance in the proper sense is established, then the absolute privilege of the advocate ceases. I should desire to add that what I have said refers to the privilege of advocates and of the other recognized legal representatives of parties. Whether it applies to witnesses and to the parties themselves to the same extent is not a question with which it is necessary for me to deal in this appeal and I particularly desire to express no concluded view. It is hardly possible to doubt that the drafting and delivery of a written statement is part of the professional work of an advocate to be performed in the course of the administration of the cause in which he is engaged. Prima facie, therefore, the advocate was acting 'in office' in the case before us. We have been pressed by Mr. Rafiq to say, nevertheless that in the composition of para. 2 of the special pleas of this written statement the defendant had departed from his office of advocate altogether, because the paragraph, and particularly the word 'awara' contained in it, was irrelevant to the matter in hand. In my opinion, in the wide sense in which the word irrelevance has been explained above in relation to the absolute privilege we are discussing, neither the paragraph itself nor the offending word were 'irrelevant.' I entirely agree that a skilled and competent draughtsman would have omitted the paragraph altogether. It sought to allege a motive for the suit for the purpose of showing that it was a malicious suit. That, strictly speaking, was quite irrelevant to the issue of trespass raised. But, in my opinion, it was certainly made 'in reference' to the suit. The practice of imparting improper motives to litigants, rather than attending strictly to the cause of action pleaded, is unfortunately too common in plaints and written statements. But, nonetheless, in the view I take, although from the point of view of proper pleading according to 0rder 6, Rule 2 of Schedule 1 to the Civil Procedure Code, the passages complained of left much to be desired, I cannot say that they were not made 'in reference to' the suit. That is enough, in my judgment, to afford them the benefit of an 'absolute privilege and to preclude all further inquiry. If, however, it is permissible to look further and to examine the instructions of the defendant, then it appears that his instructions were that the plaintiff had no means of livelihood, lived separate from his father and was an idler. This he translated into the word 'awara.' Even judged by this test and even assuming that the word 'awara' expressed his instructions more strongly than was justified, I could not hold oil that account that the matter became irrelevant in the sense I have tried to explain. From nothing I have said would I have it supposed, however, that as between the defendant-appellant and his own profession, this' type of pleading is to be approved. For the reasons I have endeavoured to explain, this appeal must be allowed and the suit dismissed. The defendant-appellant is entitled to his costs in each Court. Cross-objections have been filed by the plaintiff-respondent. These, however, have not been pressed and are dismissed.
21. I agree.