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Brundaban Mohapatra and ors. Vs. Kulamani Mishra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 114 of 1985
Judge
Reported in61(1986)CLT37; 1985(II)OLR564
ActsEvidence Act, 1872 - Sections 146 to 152; Indian Penal Code (IPC), 1860 - Sections 499
AppellantBrundaban Mohapatra and ors.
RespondentKulamani Mishra
Appellant AdvocateIndrajit Ray and B.K. Nayak
Respondent AdvocateM.M. Basu and B.P. Tripathy
DispositionPetition allowed
Cases ReferredAyesha Bi v. Peerkhan Sahib and Ors.
Excerpt:
.....magistrate committed an error in taking cognisance of the offence under section 500, i. the learned counsel further urges that when an advocate makes a statement or puts a question to a witness in course of a judicial proceeding, he does so for the protection of his client's interest and a court must presume that it was so made in good faith and, therefore, unless it is clearly established that such statement was wantonly made for any private motive clearly out of malice then a complaint should not be entertained for defamation and such an. it is then urged that the allegations in the complaint petition as well as the statement of the complainant in his initial deposition does not make out any offence under section 500, i. , and consequently the order passed by the learned..........same by order dated 13. 3. 1985 which is being impugned in the present revision.2. mr. i. ray, the learned counsel for the petitioners contends that law authorises to cross-examine a witness by asking any question which tends to test his veracity, to discover who he is and what is his position in life or to shake his credit, by injuring his character although the answer to such questions might tend directly or indirectly to criminate him or might expose him to a penalty or forfeiture and the advocate of the petitioners in the 107, cr. p. c. proceeding was well within the jurisdiction by putting the questions which have become the basis of the complaint petition and, therefore, the learned magistrate committed an error in taking cognisance of the offence under section 500, i. p. c. the.....
Judgment:

G.B. Pattnaik, J.

1. Petitioners in this revision have prayed for quashing the order of the learned Sub-divisional Judicial Magistrate, Bhubaneswar taking congnizance of the offence under Section 500 I. P. C. in I. C. C. No. 19/85. The opposite party filed a complaint alleging therein that he and his wife were members of first party in a proceeding under Section 107 Cr. P. C. numbered as Criminal Misc. Case No. 186/84 in the Court of the Executive Magistrate, Bhubaneswar. In the said 107 Cr. P C. proceeding the opposite party was examined as a witness and the present petitioners were the members of the second party. The counsel for the second party in the said 107 Cr. P. C. proceeding cross-examined the complainant and eligited some answers which have absolutely no bearing with the 107 Cr. P. C. proceeding but were intended only to defame the complainant opposite party and to injure the reputation of the complainant and his wife in the public estimation. The complainant further averred that such questions having been put by the Advocate of the petitioners, the petitioners must be held to have committed the offence of defamation. The initial statement of the complainant was recorded on 12. 3. 1985. The learned Magistrate on being satisfied as to the existence of a prima facie case under Section 500 I. P. C. took cognizance of the same by order dated 13. 3. 1985 which is being impugned in the present revision.

2. Mr. I. Ray, the learned counsel for the petitioners contends that law authorises to cross-examine a witness by asking any question which tends to test his veracity, to discover who he is and what is his position in life or to shake his credit, by injuring his character although the answer to such questions might tend directly or indirectly to criminate him or might expose him to a penalty or forfeiture and the Advocate of the petitioners in the 107, Cr. P. C. proceeding was well within the jurisdiction by putting the questions which have become the basis of the complaint petition and, therefore, the learned Magistrate committed an error in taking cognisance of the offence under Section 500, I. P. C. The learned counsel further urges that when an Advocate makes a statement or puts a question to a witness in course of a judicial proceeding, he does so for the protection of his client's interest and a Court must presume that it was so made in good faith and, therefore, unless it is clearly established that such statement was wantonly made for any private motive clearly out of malice then a complaint should not be entertained for defamation and such an. act would be covered by the ninth exception to Section 499, Indian Penal Code. It is then urged that the allegations in the complaint petition as well as the statement of the complainant in his initial deposition does not make out any offence under Section 500, I. P. C., and consequently the order passed by the learned Magistrate taking congnisance of the same must be held to be bad in law. All these contentions require careful examination.

3. So far as the first submission of Mr. Ray is concerned, it is based on Section 146 of the Indian Evidence Act. No doubt, the provisions of Section 146 authorises the cross-examining counsel to put questions which may shake the credit of the witness, but at the same time the questions must be relevant for the purpose of impeaching the credit of the witnesses. The questions may be irrelevant to the matter in issue but if the answer tends to affect the credit of the witnesses then such a question is permissible to be put by the cross-examining counsel. However, in the garb of shaking credit irrelevant or vexatious questions are not allowed to be put if they do not really impeach the credit of a witness or do not challenge the evidence given in examination-in-chief relating to the matter in enquiry. It is often complained of by a person going to a witness box that the privilege of cross-examination to test his credibility is frequently abused by the counsel and the witnesses are unnecessarily and wantonly disgraced by being asked numerous questions in regard to their family lives, private affairs, past errors, long forgotten impropriety of conduct and a thousand other things which have no bearing whatsoever upon their veracity or the point in issue and such complaint is not without foundation. But the Judge has the power to protect the witness and to disallow improper questions in exercise of his discretion and in fact Section 148 to 132 of the Evidence Act confer a discretion on the Court to present abuse of the privilege of cross-examination. Section 148 provides that if a question relates to a matter not relevant to the proceeding, but is intended onlyto affect the credibility of a witness by injuring his character, then the Court shall decide whether or not the witness shall be compelled to answer and in appropriate cases the Court may warn the witness that he is not obliged to answer. The direction of the Court, however, in this regard must be a judicious one and not capricious. Section 149 is a restriction on the counsel not to put: question unless he has reasonable grounds for thinking that the imputation which it conveys is well-founded and Section 150 provides that if the Court is of the opinion that such question was asked without reasonable grounds, then the Court may report the circumstance of the case to the appropriate authority which may affect the professional career of the cross-examining counsel. Section, 151 authorises the Court from forbidding any question which is indecent or scandalous and Section 152 authorises the Court to forbid a question which appears to it to be intended to insult or annoy or which appears to the Court to be needlessly offensive. Thus the provisions of Section 148 to 152 are intended to protect the witnesses from molestation by being improperly cross-examined, a protection which is often required. This being the position of law, I find ample force in the contention of the learned counsel for the petitioners that the vulnerable question, the answer to which according to the complainant became per se defamatory were put by the counsel well within the permissible limits particularly when the Court recording the evidence has not overruled the questions nor has he prevented the witness from answering the same and, therefore, it cannot be said that the petitioners for whom the Advocate was appearing in the 107 Cr. P. C. proceeding committed the offence of defamation. It may be noted at this stage that the questions put by the cross-examining counsel were not defamatory, but the answer elicited from the witnesses became a defamatory one. If the witness really thought that the answer could defame him, then he could have as well sought the protection of the Court and would have refused to answer the same. If there is no allegation in the complaint petition, that the questions put by the cross-examining counsel have been defamatory. I do not see how the party for whom the counsel was representing would be made liable on the assertion that the answer which the witness gave defamed himself. In my opinion, the first submission of Mr. Ray, the learned counsel for the petitioners, must prevail.

4. Coming to the second submission of Mr. Ray, no doubt, there is some force in the same but at this stage it cannot be said that the ninth exception to Section 499 of the Indian Penal Code must apply. Section 499 of the Indian Penal Code defines the defamation and the ninth exception to the same is to make an imputation on the character of another provided the imputation is made in good faith for protection of the interest of the person making it or of any other person or for the public good. Mr. Ray in this connection placed reliance on the decision of the Madras High Court reported in the case of Ayesha Bi v. Peerkhan Sahib and Ors., A. I. R. 1954 Madras 741. The learned Judge in that case no doubt observed that the liability of an Advocate charged with defamation in respect of words spoken ot written in the performance of his professional duty depends on the provisions of Section 499 of the Indian Peaal Code and the Court will presume good faith unless there is cogent proof to the contrary. But at the same time, it was held in that case that the privilege is not an absolute one but qualified. Thus, even if a' burden is cast on the prosecution to prove the absence of good faith yet such burden can be discharged only at the trial and not at this stage and, therefore, a cognisance cannot be quashed on that ground at this stage of the proceeding. In my view, therefore, the second contention of Mr. Ray cannot be sustained.

5. So far as the third submission is concerned, I also find ample force in the submission of the learned counsel for the petitioners. Under Section 499, I. P. C. if a person by words spoken or intended to be read or by signs, or by representation makes in imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such, parson, then such person must be held to have defamed the other. In the allegations made in the complaint petition, it is not the case of the complainant that either the petitioners or the Advocate for the petitioners on the instructions of the petitioners spoke anything or read anything or made any representation making any imputation on the character of the complainant by which his reputation was defamed. On the other hand, it is the answer which the complainant gave defamed himself. If that be the case, then I fail to understand how the persons who were being represented by the Advocate can be held liable for the offence in question. In my opinion, the averments made in the complaint petition together with the initial statement of the complainant taken on its face value do not make out the offence under Section 499, I. P. C. and consequently it will be a fit case where the order of cognisance must be quashed,

6. In the ultimate result, therefore, the order of the learned Magistrate dated 13. 3. 1985 in I. G. C. No. 19/85 is hereby quashed and so also the criminal proceedings.

This criminal revision is accordingly allowed.


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