P. Govinda Menon, J.
1. This is a petition under Section Section 561A Cr. P. C. to quash the charge framed by the First Class Magistrate, Trivandrum against the petitioner under Section 500 read with Section 34 I.P.C. The petitioner, Sri. M. K. Parameswara Kurup, is a practising advocate of the Trivandrum Bar. He is the fifth accused in Calendar Case 697 of 1964. The complaint was that in the counter statement Ex. P-10 filed by the first accused in some proceeding in the sub court, Trivandrum certain allegations were made against the complainant which were false and per se defamatory, that similar defamatory imputations were made in the counter Ex. P-11 filed by accused 2 to 4 in the same matter and in both, the petitioner being their lawyer had attested the counter statements before they were actually put into court. During the pendency of the case accused 1 to 4 compounded the offence with the respondent and on the compromise petition being put in court, they were ordered to be acquitted. The complainant, however, wanted to proceed with the complaint against the petitioner and examined witnesses and the learned Magistrate on finding that a prima facie case had been made out has framed a charge against the petitioner under Section 500 read with Section 34 I.P.C.
Section 34 is only a rule of evidence and does not create a substantive offence. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. I am unable to see how the offence of defamation committed by accused 1 to 4 in filing the statements could be said to have been done in furtherance of the common intention of all of them. Common intention within the meaning of Section 34 I.P.C. presupposes a prior conceit. It requires a prearranged plan, a meeting of minds. There is no such allegation, much less proof.
2. Now we have to see whether it could be said that the petitioner had committed the offence himself. Section 499 brings under the criminal law the person who publishes as well as the person who makes the defamatory imputation. So there can be no offence of defamation unless the defamatory statement was either made or published by the accused. Section 499 emphasises me words 'makes or publishes'. If there is no evidence that the petitioner had either made or published the defamatory imputation, then there is an end of the matter and the further question of justification or whether there was express malice will not arise. In the complaint it was alleged that the two counter statements were publicly read out by the petitioner in the hearing of others, and thereby the petitioner had published the imputation. But no such evidence has been led that the petitioner had read out the statement to anybody. There is also no allegation that the counter statements were in fact drafted or prepared by the petitioner and no evidence has in fact been led to show that the petitioner had anything to do with the preparation of the counter. The evidence of the first accused who is examined as a witness for the prosecution completely negatives this case. The counter-statements are also not in the handwriting of the petitioner. So the essential ingredient of the offence has not been made out and the charge cannot stand. Merely attesting the written statement or counter of a client to enable it to be filed in court without anything more would not be sufficient to make out the offence of defamation against the lawyer. This point probably has been overlooked by the learned Magistrate.
3. Now even assuming that it was the lawyer who drafted the written statements there can be no offence against him. A counsel owes a duty to his client and he must carry out faithfully his client's instructions. If the client makes serious allegations against a party in a suit, it is the counsel's duty to plead those allegations in the plaint or written statement or other pleadings. No doubt the counsel must perform his duty with discretion, and clearly he should not plead what are obviously irrelevant, wanton, wild or reckless allegations. On the other hand, it must be remembered that a counsel is not a Judge in the case and it is not for him to decide whether the allegations made by his client are true or false. He is bound except in very exceptional circumstances to accept his client's words. If serious and untrue allegations are made he brings himself open to a prosecution for defamation, but he cannot be successfully prosecuted unless it is clearly shown that he had acted in bad faith or maliciously. The counsel can rely on exception 9 to Section 499, but he would lose that defence if he had abused his position and made allegations maliciously or for his own purposes.
A court may presume that counsel who has signed the pleading has acted bona fide and without malice and no counsel, in my view, should be called upon to answer a complaint for defamation merely because he has signed a pleading which contains defamatory matter. If this is not the position, then no counsel can possibly discharge his duties to his client. If a counsel renders himself liable to prosecution every time he makes a serious allegation in a pleading on instructions from his client, it would be impossible for him to carry on his duties. All that the learned Magistrate had before him in this case are the two counter statements containing the offending passages in the written statements, not drafted or prepared by the lawyer, but only attested by him and a mere statement of the complainant that enmity existed between him and the petitioner. No doubt some evidence has been adduced about the existence of malice, but the evidence is vague, unbelievable and unworthy of credit. I am, therefore, of opinion that no prima facie case of defamation has been made out. No facts were placed before the Magistrate from which it could be inferred that the petitioner acted otherwise than in good faith. That being so, no charge could have been framed. Authority for this position could be had in the decision in Muhammad Taqi v. M. A. Ghani, AIR 1945 Lah. 97.
In the case in Tulsidas Amanmalv. S.F. Billimoria, AIR 1932 Bom. 490, it was held that on grounds of public policy an advocate is entitled to special protection, and that if an advocate was called in question in respect of defamatory statements made by him in the course of his duties as an advocate, the court ought to presume that he acted in good faith and upon instructions.
A similar view was taken in Mcdonnell v. Emperor, AIR 1925 Rang. 345, where it was held by a Bench that it was the duty of a court when a complaint was made against an advocate for defamation to presume that the defamatory statement complained of was made on instructions and in goon faith.
4. This court is reluctant to interfere with the ordinary course of law and substitute its own judgment for the judgment of the Magistrate who is trying the case before the completion of the trial. But where on the facts of the case this court is satisfied that there is no case against the accused and that the further prolongation of the prosecution would amount to harassment of the process of the court, it is the duty of this court to interfere under Section 561A and to put an end to this abuse by directing the quashing of the prosecution. The actual persons who had made the defamatory imputations having expressed regret and apologised the matter was compromised. So it does not seem necessary in the interests of justice to proceed against the petitioner, whose only sin was that he happened to be their advocate and to attest the statements as required by law before actually filing in court.
In the result, the revision petition is allowed and the proceedings pending against the petitioner are quashed.