H.L. Anand, J.
(1) This petition under Section 482 of the Code of Criminal Procedure is directed the order of the trial court by which the trial court refused to summon Respondents 1 and 2 in a complaint under Section 500 of the Indian Penal Code and of the Additional Sessions Judge upholding the order of the trial Court.
(2) The petition, which ex facie exposes a crude and clumsy attempt at character assassination of an educated young lady to defeat the claim for restitution of conjugal rights, has been made in circumstances which, to say the least show not only an utter disregard of any scruple on the part of an Advocate but also an unawareness on the part of the Courts below to their duty to give protection to a lady from an act of calumny. Respondent No. 2 is an Advocate of U.P. Respondent No. I is his,son and happens to be an Executive in a Nationalised Bank. Smt. Neelam Chaturvedi, sister of the petitioner who apparently come of a respectable family, was married to the son of the Advocate in June, 1979. Matrimonial disharmony seems to have overtaken the couple soon after the marriage primarily, if not wholly, according to the wife, because of the attitude of the father of the husband for reasons which could perhaps be attributed either to the generation gap or other factors. In 1980, wife sought restitution of conjugal rights in a court in Delhi and also sought maintenance pendente lite. The claim of restitution of conjugal rights and for maintenance was resisted by the husband. The father of the husband, being himself an Advocate, has been acting and appearing for the husband in the proceedings in Delhi. In the course of these proceedings, the father of the husband filed on behalf of his son an affidavit dated December 8, 1980 of one Brij Pal Singh, Respondent No. 3 herein, containing allegations of unchastity against the lady, in terms, which if untrue, could be described as a very crude and clumsy, as indeed, reckless attempt at character assassination of a respectable young lady to defeat the purpose of proceedings in which it was filed. Brij Pal Singh incidently is no relation of either of the parties, had never known the lady before and it is not a sheer coincidence that he was known to the father of the husband because only a little while before the date of the affidavit, they have had a business deal about a parcel of land. The close connection between the father and Brij Pal Singh was not disputed. In the affidavit, which was attested by an Oath Commissioner in Delhi on the identification of the deponent by the said Advocate, Brij Pal Singh alleges that the lady performs naked dance For money; that he had occasion to watch the performance for a payment of Rs. 200.00 in Delhi and that she was reportedly having sexual intercourse at the Delhi Railway Station with a person with two other persons waiting for their turn and claims that the deponent turned down an offer of such intercourse against a payment of Rs. 25.00 In the affidavit, Brij Pal Singh gave a Delhi address which was found to be false and it was not disputed that he is a resident of a town in U.P. The claim of the wife for restitution was decreed by the Additional Sessions Judge by an ex-parte order, but, unfortunately, the learned Additional Sessions Judge did not consider it necessary to deal with the request made on behalf of the wife that the deponent, the husband and his father were guilty of defaming the lady and of fabricating and using false evidence and should be suitably dealt with. The petitioner, who is the brother of the aggrieved lady, eventually filed a complaint of an offence under Section 500 read with Section 34 of the Indian Penal Code in the Court of a Magistrate in Delhi. The husband, his father, and the deponent were imp leaded as accused in the complaint. In support of the complaint, the lady appeared and made a statement on oath alleging that a false affidavit had been procured by the husband and his father from Brij Pal Singh and had been filed in the proceedings before the Additional District Judge, with a view to defame the petitioner. She also alleged that the father of the husband and the deponent have had a deal with regard to immovable property and that the father and the deponent were, thereforee, known to each other. It was also stated that the deponent in the affidavit gave a Delhi address which was found to be false. By an order of March 3, 1983, and now sought to be assailed, the trial court summoned Brij Pal Singh under Section 500 Indian Penal Code ., but discharged the husband and his father on the ground that there was 'no evidence to summon them under Section 34 of the Indian Penal Code .' The order was upheld in revision by the Additional Sessions Judge by an order of May 4, 1983, on the ground that there was 'no error apparent on the face of the record' nor had the trial court 'acted with any illegality or material irregularity', which may justify interference in revision. .That is how the petitioner invokes the inherent powers of this Court.
(3) I have heard learned .counsel for the petitioner, as well as the father of the husband, who argued the case on his behalf and that of his son, and it appears to me that both the husband and his father were eminently liable to be proceeded against for an offence under Section 500 read with Section 109 of the Indian Penal Code and that it would be a gross abuse of the process of the court, in the circumstances of the case, to discharge these two persons and both the courts below have taken a view of the matter which is absolutely perverse and, which no judicial tribunal, duly instructed in the law, could possibly take on any reckoning. By declining to issue process against the husband and his father, the courts below have rather taken lightly an attempt at character assassination of a young lady which deserved to be taken serious note of and if ultimately proved, would justify unreserved condemnation at the hands of any court.
(4) It was not disputed that the averments made by Brij Pal in the affidavit are prima facie defamatory. Prima facie, the imputations in the affidavit are too ridiculous to be true. It was also not disputed that Brij Pal was neither a relation of the parties nor otherwise interested in the controversy between the husband and wife or their matrimonial disharmony. He was a complete stranger to the proceedings in which the affidavit had been filed. He had not been summoned by the court, much less required by the Court to produce any material touching the question as to the chastity of the wife. It was also not disputed that Brij Pal Singh had known the father of the husband and has had a business deal with him relating to a parcel of land a few days before the date of the affidavit. In the ordinary course of even s, thereforee, such an affidavit could have been given by Brij Pal Singh only at the instance of the father of the husband. It was also not disputed that the affidavit was filed by the father of the husband, acting as the Advocate for the husband, in the proceedings to which the husband was a party and in support of the plea of the husband with a view to justify denial of the claim of the wife made in those proceedings. If the father of the husband was merely acting as an Advocate, some controversy would have been possible as to how he could be liable merely because on instructions from a client, he filed in judicial proceedings an affidavit containing defamatory statements. But Respondent No. 2 is not a mere Advocate of the husband. He not only happens to be his father but made bold to tell this Court, in an apparent attempt to save his son from embarrassment, that the affidavit had been filed by him on his 'own responsibility' without 'the instructions of or reference to the son'. He even went to the extent of saying, presumably with the same anxiety, that the son was not even aware of the developments in the proceedings. There is some support for this contention in that it was pointed out on behalf of the wife that the differences between the husband and the wife were not irreconcilable and that what stood in the way of their harmonious matrimonial life was the attitude of the father. The husband is an Executive in a nationalised bank and I can understand the anxiety of the father to save the son a possible embarrassment if process was issued against him by a court in criminal proceedings but it is difficult to resist the conclusion that prima facie, on the material on the record, process would be justified not only against the deponent, who had given a false affidavit at the instance of the father of the husband, but also against the husband, on whose behalf and for whose benefit the same was filed in Court, as also the father who not only acted as an Advocate for a party but also happened to be his father and what is more, on his own showing, was acting in relation to the proceedings without reference to the party whom he purported to represent. The lady has made a sworn statement in the court supporting the contention that the affidavit had been procured by the father and filed in the proceedings by the father on behalf of the son and I fail to see how in the face of such material, the courts below could have possibly justified withholding of process against these two persons. The Courts below unfortunately appeared to have assumed that the deponent, a complete stranger to the proceedings, and who was in no way connected with the lady, had on his own decided to make his investigation with regard to her character, prepared a nasty affidavit and presented it to the Advocate for being filed in the proceedings without any possible provocation or inducement or approach by anyone connected with the proceeding, Such an assumption would be unwarranted and wholly uncalled for. The inherent characteristics of the situation would belly any such assumptions and if the courts below required further material, in support of the complicity of the husband and his father, it was amply provided by the lady's testimony in court. Letting off someone who may appear to be guilty of an offence is as much denial of justice as proceeding against a person who is innocent.
(5) A contention was raised on behalf of the respondents that the petitioner having exhausted his right of revision, the inherent powers of this court could not be invoked. There is no substance in this contention. The exhaustion of the revisional remedy does nor in any manner divest this Court of its inherent power, even though such powers are to be 'sparingly' used and in 'rare cases' on the conditions for the exercise of such power being satisfied. There is no bar to the exercise of that power and it has been held to be a mere 'self-restraint'. This, to my mind, is a case of extreme type in which this Court is not only entitled to exercise its inherent power to secure the ends of justice but is also under a duty to do so to prevent an abuse of the process of a court. The inherent powers of this Court under Section 482 of the Code are not subject to the law of limitation either.
(6) A faint attempt was made on behalf of the respondents to invoke the Advocate's privilege as also the benefit of 9th exception to Section 499 of the Indian Penal Code. The contents of the affidavit, the reckless nature of the imputations, and the inherent characteristics of the situation prima facie establish that making and publication of the imputation had a mala fide object. The Advocate was not merely acting in that capacity but also happened to be the father of the husband and allegedly procured the affidavit from the deponent. Prima facie, this would disentitle him to the protection of the Advocate's privilege, and put the case beyond the protection of the exception. The husband and his father are prima facie liable to be proceeded against for defamation and it would be open to them to set up the Advocate's privilege or the 9th exception by way of defense, if so advised. Neither of these would justify withholding of a process against these persons, on the material on record.
(7) It is very unfortunate that the father of the husband prima facie appears to have acted in a manner which was not only unworthy of a father in-law but also unbecoming of an Advocate. It is also unfortunate that the learned Magistrate dealt with a rather sensitive matter- in a cavalier fashion and the learned Additional Sessions Judge made himself a victim of the hypertechnicality of the law in declining to interfere on the revisional side.
(8) The petition succeeds and the orders of the courts below are set aside to the extent process was refused against Respondents 1 and 2. Respondents 1 and 2 would be summoned for an offence under Section 500 read with Section 109 of the Indian Penal Code in accordance with law. The case is transferred from the Court of the learned Magistrate, who made the order, to any other magistrate to whom it may be entrusted by the learned Sessions Judge.
(9) A copy of the order be forwarded to the Chairman of the Bar Council concerned for such action against the Advocate as the Council may consider appropriate, having regard to all the circumstances.
(10) I have used rather strong language to express my revulsion to the imputations and to give expression to this Court's reaction to the manner in which the matter was dealt with by the courts below. Any expression of opinion by this Court, however, must be understood in its proper perspective and the trial court, as indeed, the Council would be entitled, as indeed, bound in law to deal with the matter in accordance with law and arrive at their own conclusion uninfluenced by the opinions expressed by this Court with the limited object of determining if Respondents I and 2 were liable to be summoned having regard to certain inherent characteristics of the situation and the material on record.