1. The applicant in this revision is one Lala Gendan Lal. He was an accused person in a case, Habid v. Gendan Lal, under Section 324, Penal Code, in the Court of the Bench Magistrates at Muzaffarnagar. Habib was represented in that case by an advocate, Mr. Banarsi Das. It in alleged that, while arguing the case for Habib, Mr. Banarsi Das made two defamatory statements regarding Gendan Lal. The first statement was that he, Gendan Lal, had abducted a Khattri woman. The second statement was that he 'had illicit connection with a Jain woman. These statements were quite unnecessary for the purposes of argument in the case and the case of Gendan Lal is that they are deliberately made with a view to lower him in the estimation of his fellow men.
2. Gendan Lal filed a complaint under Section 500, Penal Code, in respect of these statements. It came up for trial before a Bench of two Magistrates. The two Magistrates were not in complete agreement as regards what had happened during the course of the trial. Ultimately they gave the accused the benefit of doubt and he was acquitted. Prom that order of the Bench Magistrates the complainant went in revision to the District Magistrate. The District Magistrate came to the conclusion that Mr. Banarsi Das had undoubtedly made the statements attributed to him by Gendan Lal in open Court, but that it was not for him to go into the question of fact unless it could be shown that the finding of the Magistrate that he had done it in discharge of his duty as counsel for the applicant was shown to be perverse. He, therefore, held that Mr. Banarsi Das was acting in good faith. He dismissed the application in revision. It is against that order that the applicant has come in revision to this Court.
3. I have given this case my careful consideration and have come to the conclusion that I ought not to interfere with the order of the learned District Magistrate. But, while declining to interfere with that order for the reason that the lower Courts have held that express malice which ought not to be presumed but must be proved by the prosecution as a fact is absent in the case before me, I deem it necessary to make a few observations regarding the extent of immunity which an advocate enjoys under the 9th exception to Section 499, Penal Code, for words uttered in his capacity as advocate. I may point out that it was observed by Mookerjee A.C.J. in Satish Chandra v. Ram Dayal 8 A.I.R. 1921 Cal. 1 at p. 407, that:
In this country questions of civil liability for damages for defamation arid questions of liability to criminal prosecution for defamation do not, for purposes of adjudication, stand on the same basis, as regards the former, we have no codified law, as regards the latter, relevant provisions are embodied in the Penal Code.
The position appears to be that the immunity which an advocate or a pleader enjoys in a criminal proceeding for words uttered or written in the performance of his functions as an advocate is not in the nature of an absolute but of a qualified privilege and it is for the prosecution to prove absence of good faith. See also In re Nagarji Trikamji ('95) 19 Bom. 340, and Emperor v. Ganga Parasad ('07) 29 All. 685. It is highly improper for counsel to misuse the privilege of free speech which they enjoy when examining witness or presenting arguments for consideration of the Court. They owe it to the Court and the profession of which they are members not to indulge in their arguments in defamatory remarks of a gratuitous nature about the complainant, accused or witnesses in the cases, entirely irrelevant for the purpose pf protection of the interest of the party whom they are representing. The balance of authorities appears to be in favour of the view that such gratuitous remarks reflecting on the conduct of a party, if made with a malicious intent to lower him in the estimation of his fellow-men in a case where the party's character is not in issue or relevant for the purposes of a right determination of the case, would not protect counsel from criminal defamation. In this case, it has been difficult to understand for me what connection there was between Gendan Lai's alleged immorality and the case in which he was accused under Section 324, Penal Code. I am bound to say that Mr. Banarsi Das was reckless in making the remarks he did in the course of his arguments. The character of Gendan Lal, the accused, was an entirely irrelevant issue. He was being charged under Section 324, Penal Code, and there had been no suggestion in cross-examination that it was the sexual character of the accused that had led him to voluntarily cause hurt by some dangerous weapon such as would bring the offence he had committed under Section 324. Counsel need to remember that if the law gives them the privilege of free speech in argument, it is for some reasons of high policy. For, if counsel were not to possess, at least, a qualified privilege in regard to arguments addressed by them in Court, their independence would suffer. Their freedom of speech is vital for the administration of justice. But the privilege of free speech which counsel enjoy is not intended for the protection of benefit of such counsel as can be proved to be guided by corrupt or malicious motives. Counsel would undoubtedly be entitled to the protection which exception 9 to Section 499, Penal Code, gives if he uses the occasion with due regard for the responsibility that is imposed upon him. But it would not be consistent with notions of justice as I understand them if counsel were to be deemed entitled to protection even it was shown that he had used the occasion to satisfy some private grudge which either he or his client entertained against the opposite party. The duty of counsel to exercise commonsense and caution in asking a defamatory question or addressing an argument which is defamatory to the opposite party was well emphasised by Duval J. in Fakir Prasad Ghose v. Kripasindhupal : AIR1927Cal303 . I quote below from the judgment of Duval J.
It is also perfectly clear from the latest authorities that the pleader must use a certain amount of common-sense and caution in asking a defamatory question. There may be cases where, under proper instructions, he is entitled to ask questions which are defamatory to the person, so as to impeach his credit. In the present case, unless he had known (I do not see any reason to believe, that he did not know) of the good character and the reputation of the witness he was examining, he might have well asked the questions such as whether he was gambler or a thief, so as to cast doubt on the troth of his examination, if he was instructed that this man did bear this character. But here it appears to me abundantly clear that these questions, and especially the subsequent ones about his wife, were asked with utter recklesness and without regard to seeing whether there was any truth in them and with absolute disregard of whether he was entitled to ask them or not.
4. There is not the least doubt that Mr. Banarsi Das was perfectly reckless in the manner in which, in the course of his argument, he attacked the accused, Gendan Lal. Prom the point of view of presenting the case for his client, it was absolutely unnecessary for him to make statements of a prima facie defamatory character against the applicant, Gendan Lal, particularly when in cross-examination such questions which would have been in any case of an irrelevant nature had never been asked of the witnesses produced on his behalf. The only excuse that can be advanced for Benarsi Das and which has appealed to the Courts below is that these reckless statements were made by him in a moment of excitement, without premeditation and forethought. The reason for this excitement appears to have been the fact that counsel for the opposite party had in the course of his arguments indulged in an attack on his client. It is because of this consideration and the fact that the lower Courts were not satisfied that he was actuated by malice that I have not considered it proper to interfere in this revision. Further this Court is reluctant to interfere in applications by private parties for revision against orders of acquittals.
5. I cannot part with this ease without observing that Mr. Banarsi Dag's conduct, though it does not come technically under Section 500, Penal Code, was not worthy of a member of one of the most honourable professions in the world. The result is that I dismiss this application.