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Narottamdas L. Shah Vs. Patel Maganbhai Revabhai and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1984CriLJ1790
AppellantNarottamdas L. Shah
RespondentPatel Maganbhai Revabhai and anr.
Cases ReferredKartar Singh v. State of Punjab
Excerpt:
- - if the strike goes on being prolonged by lawyers like this, a stage may be reached when the people would not find it necessary to retain a, lawyer at all. such brokers of disputes exhibit childishness or irresponsibility like going on a long strike on a problem with which lawyers are not concerned directly or indirectly, a question would arise how far the lawyers will be protecting the interests of their clients. if lawyers continue to behave like this by clinging to their caprices or arbitrary ideas without caring for the interest of the society, they will stand to lose their position and status (8) but then it would be too late. even now it is in their best interest if those who have resorted to a mistaken path having lost senses, return to wiser course and repent for their.....ordera.p. ravani, j.1. some questions of vital public importance have arisen in this petition. on this point at least, the learned counsel appearing for rival parties appear to be ad idem. the questions are : does it behave to the lawyers as a class to resort to strike and if anyone publicly comments and publishes the same in a rather unhappy or unpleasant language, would it amount to defamation of an individual member of the class of lawyers? further, if the insinuating remarks are directed against the entire class of lawyers, would it amount to an offence of defamation so as to attract the provisions of sections 499 and 500 of the indian penal code2. according to the complainant, since september 23, 1983, the lawyers in gujarat were protesting against the interference of the government.....
Judgment:
ORDER

A.P. Ravani, J.

1. Some questions of vital public importance have arisen in this petition. On this point at least, the learned Counsel appearing for rival parties appear to be ad idem. The questions are : Does it behave to the lawyers as a class to resort to strike and if anyone publicly comments and publishes the same in a rather unhappy or unpleasant language, would it amount to defamation of an individual member of the class of lawyers? Further, if the insinuating remarks are directed against the entire class of lawyers, would it amount to an offence of defamation so as to attract the provisions of Sections 499 and 500 of the Indian Penal Code

2. According to the complainant, since September 23, 1983, the lawyers in Gujarat were protesting against the interference of the Government in judiciary. On account of the agitation, they ceased to participate in court proceedings and resorted to 'satyagraha'. As stated in the Resolution passed on February 2, 1984 by the Executive Committee of the State Bar Council of Gujarat (hereinafter referred to as 'the Bar Council' which is produced on record, the agitation was with respect to the appointment and transfer of Chief Justices of High Courts. Sometime in the third week of October 1983, lawyers decided to extend their strike up to November 6, 1983. Thereupon the petitioner herein wrote and printed an editorial 'Whither the Dispute Brokers (Kajia Dalals)', Kajiya Dalalo Kya Marge, in the issue of 'Jay-Hind' daily dt. October 22, 1983.

3. The editorial is in Gujarati and when translated into English reads as follows:

Whither the dispute-brokers (Kajia Dalals)(1)

The controversial agitation conducted by lawyers in Gujarat for the last several days has taken a new turn since the lawyers have decided to extend the strike up to 6th November.

Leaving aside for the time being going into the merits of the question which is the subject-matter of the agitation, the question does arise, namely whether the strike of the lawyers is behaving to them?

Lawyers have eroded their own image by resorting to a prolonged strike. It has reduced respect for them amongst their clients.

In reality, who stands to lose on account of such strike? In a sense, lawyers are brokers of disputes. (2) To the extent lawyers are absent, the lesser will be the disputes. (3) people then will be inclined to have their disputes settled by their own mutual efforts.

Where was the system of lawyers prevalent in the past on a wider scale? Even today in some regions, disputes are being settled through people's courts without the presence of lawyers.

If the strike goes on being prolonged by lawyers like this, a stage may be reached when the people would not find it necessary to retain a, lawyer at all. Is it not that brokers of disputes are necessary only where there are disputes? (4)

In reality, lawyers have been encouraging disputes more and more by giving impetus to the disputes. (5) Lawyers may be interested in disputes arising between the parties. However, continuous strike of lawyers is making the clients see for themselves what is what?

Such brokers of disputes exhibit childishness or irresponsibility like going on a long strike on a problem with which lawyers are not concerned directly or indirectly, a question would arise how far the lawyers will be protecting the interests of their clients. (6)

It is unfortunate matter that these dispute-brokers have taken a wrong path (7) by disregarding their duties and obligations cowards law, towards the clients and towards the society. People will feel inclined to settle their legal problems by themselves in view of such tendency on the part of lawyers. As far as possible they will avoid approaching lawyers. In other words, lawyers are causing injury to their own interests. If lawyers continue to behave like this by clinging to their caprices or arbitrary ideas without caring for the interest of the society, they will stand to lose their position and status (8) but then it would be too late.

Even now it is in their best interest if those who have resorted to a mistaken path having lost senses, return to wiser course and repent for their mistake. (9)

4. According to the complainant, sentences marked (1) to (9) and which are underlined are defamatory. As stated by the complainant, he read the editorial on October 24, 1983 and filed the complaint for offence of defamation (Section 500 IPC) on October 25, 1983. The learned JMFC, Visnagar, after examining the complainant on oath and recording his statement ordered to issue process under Section 500 of the Indian Penal Code.

5. There is no dispute with regard to the fact that the editorial in question has been written and published by the petitioner in his capacity as Editor of the daily newspaper 'Jay Hind'. The same has been published in the issue of October 22, 1983. The complainant himself is a lawyer. As stated in the complaint, he is doing the business of lawyering for last about 20 years and his principal place of business is Visnagar.

6. As per the complaint, 'the constitutional peaceful non-violent and disciplined agitation' of lawyers of Gujarat was in progress. With a view to defame such a constitutional and systematic agitation and with an intention mainly to lower down the reputation and prestige of the lawyers in public, the petitioner-accused published the offending editorial. The complainant has extracted nine sentences from the editorial and has reproduced the same in para 3 of the complaint. Hereinabove, the entire editorial is reproduced and the sentences have been marked (1) to (9) and underlined. These sentences, according to the complainant, are defamatory. By making the aforesaid statements, as contended by the complainant, the petitioner-accused has lowered down the prestige of the complainant and that of the class of lawyers as a whole (Vakil Alam). It is further stated that if the entire writing is taken into consideration, the accused has, without going into the merits of the agitation, described the lawyers as 'Kajia Dalals' and thereby lowered down the reputation and prestige of the lawyers. The complainant was examined on oath by the learned Magistrate on October 25, 1983 before ordering to issue process. Therein he has again stated that the accused has attempted to lower down the reputation and prestige of the Lawyers' World (Vakil Alam).

7. The petitioner-accused has invoked the inherent jurisdiction of this High Court and prayed that the process issued by the learned Magistrate and the proceedings initiated against him be ordered to be quashed and dropped inter alia on the grounds that the complaint as well as the contents of the editorial published by the petitioner-accused do not disclose any offence whatsoever and the complainant is not an aggrieved person within the meaning of Section 199 of Cr.P.C. and the writing of the editorial is referable to the entire class of lawyers and the same is not referable to any particular person or a determinate group/class of persons.

8. Just after the commencement of arguments by the counsel for the petitioner, Shri G.N. Desai, learned advocate, intervened to make request on behalf of the Bar Council. He placed on record a Resolution dt. February 2, 1984 passed by the Executive Committee of the Bar Council which, as stated at the Bar, has been approved by the General Body of the State Bar council later on. In view of the contents of the Resolution and having regard to the questions involved in the case, request is granted and the Bar Council is permitted to appear as intervener.

9. Before adverting to the rival contentions of the parties, it would be appropriate to deal with two of the submissions made by the counsel for the Bar Council. The counsel for the Bar Council in the beginning of his arguments submitted that the legal profession includes in the system. Yesterday's lawyers who are today's judges' and also includes 'the yesterday's judges who are today's lawyers'. According to him all these persons who are included in the system and who belong to the legal profession are referred to as 'Kajia Dalals' in the alleged offending editorial published by the accused. He submitted that the dignity of the profession must be maintained by everyone concerned in the system. The thrust of the argument was clear, since the judges are also included in the legal profession, even the reputation of judges also was affected by the writing in question.

10. Being an important part of the system, the judges also belong to the legal profession. The Supreme Court in the case of The Bar Council of Maharashtra v. M.V. Dabholkar, reported in : [1976]2SCR48 , felt blushed while narrating the conduct of the advocates involved in the case and observed by posing a question-

do we not all together belong to the 'inner republic of bench and bar?'

Thus in a sense judges do belong to the legal profession. But the question involved in the case cannot and should not be decided by keeping this factor in mind. If this is done, it would amount to becoming a judge in one's own cause. In the instant case, a citizen is arraigned as an accused He owns a press. He prints and circulates a newspaper. Nevertheless, he does not cease to be a citizen of this country. He has a right to approach this Court for getting his grievances redressed. His case cannot be decided on the basis that the judges are also an integral part of the system and therefore the alleged defamatory statement made in the editorial refers to judges also. Assuming that the editorial covers even the judges, then also the same factor should not be allowed to enter into the mind while deciding the issue involved in the case. If this is done, it would be against the basic tenets of our judicial system. It is one of the fundamental principles of our judicial system that no one can become a judge in his own cause. A citizen has a right to claim impartial justice even when the legal profession is involved in the case. Hence, this aspect, i.e. judges being an integral part of the system though repeatedly advanced during the course of the arguers has to be kept out of consideration as the same is irrelevant.

11. However, incidentally it may be mentioned that in the plethora of literature cited before me in the shape of articles, reports of various committees, speeches, books and law reports, etc., nowhere judges have been associated with lawyers when lawyers have been described by ascribing to them such 'Honourable' adjectives like Leeches, expert craftsman. Parasites, etc. somehow, right or wrong, knowingly or unknowingly, people seem to have made distinction and have not considered judges worthy of being conferred such privileged distinction. At any rate, as far as this case is concerned, there is nothing in the editorial or anywhere on the record of the case that the writing in question refers to judges also. The plain reading of the editorial and the complaint shows that the editorial refers to lawyers. The complainant as well as the Bar Council have also understood the editorial in the same fashion, that is to say, referring only to lawyers and not to judges. Since the submission is based on facts non-existing, the same requires to be rejected even on this count.

12. He also submitted that when the president of a Bar Association (Visnagar Bar Association a Taluka level bar association) has filed the complaint, it should not be ordered to be thrown out at the threshold. However, there is nothing on the record of the case to show that the complainant is the president of Visnagar Bar Association. The complaint is filed in his individual capacity. Nowhere in the complaint any reference whatsoever is made to Visnagar Bar Association or to any other Association whatsoever, It is not even mentioned that he is a president of Bar Association. Even in the deposition before the learned Magistrate, the complainant has not stated that the complaint is filed at the instance of or on behalf of Visnagar Bar Association. Therefore, factually it is incorrect to say that the President of Visnagar Bar Association has filed the complaint. The complainant may be the President of the said Bar Association. But he has not described himself as such. However, even if the complainant happens to be the President of Visnagar Bar Association, it does not make any difference whatsoever so far as the merits of the case are concerned.

13. The Counsel for the complainant submits that the question as to whether the editorial refers to a determinate class of lawyers only or as to lawyers' class as a whole should not be decided at this stage. In his submission this question should be decided after the evidence is recorded in the case. The case has got to be determined on the basis of the writing in the editorial. If the editorial does not refer to any individual or to any determinate class or group of persons, no useful purpose can be served by allowing to proceed further with the case before the trial court. Hence the submission cannot be accepted.

14. Counsel for the complainant (opponent No. 1 herein) has relied upon a decision of the Supreme Court in the case of Sewakram v. R.K. Karanjiya, reported in : 1981CriLJ894 . He has also referred to an unreported decision rendered by me in Criminal Misc. Appln. No. 1583 of 1983 decided on September 14, 1983. The aforesaid decisions have been cited and read in expense with a view to submit that a journalist is in no way a better position than any other citizen. He has the same right of freedom of speech and expression just as any other citizen has. He cannot claim any higher privilege. In this case, the petitioner does not claim any higher privilege whatsoever. His simple case is: 'treat me as an ordinary citizen and judge the merits of the case on the basis of normal standards applicable to an ordinary citizen'. Hence these two decisions are of no help to the oopponent-complainant.

15. It is also submitted by the counsel for the complainant that, at this stage the accused cannot avail of the benefit of any of the exceptions to Section 499 IPC. As to whether the petitioner-accused is entitled to any such benefit or not can be decided only after recording evidence. Again the reliance is placed on the decision of the Supreme Court in Sewakram's case 1981 Cri LJ 894 (supra). The petitioner-accused does not claim benefit of any of the exceptions to Section 499 IPC at this stage. His claim is : read the editorial as a whole, there is no defamation whatsoever of any particular person or a group of particular persons. The criticism made, if any. is that of the entire class of lawyers and at the most some words used may cause resentment but the same would never amount to an offence of defamation.' In above view of the matter the decisions cited by the counsel for the complainant are of no assistance to him and the contentions made by him do not arise at all in this case, at least at this stage.

16. The counsel for the complainant submitted that applicability of Section 199 of the Cri.P.C. (i.e. whether the complainant is an aggrieved party or not) and as to whether, the alleged insinuating remarks refer to a particular determinate class of lawyers or not, can be decided only after recording evidence. Therefore, at this stage this Court should not interfere. The argument has no merits. As to whether the insinuating remarks are referable to any specified individual or a group of individuals can be ascertained from:

(1) writing of the editorial;

(2) contents of the complaint: and

(3) examination of the complainant before the learned Magistrate.

As stated hereinabove, it is not even the case of the complainant, as disclosed in the complaint and in his deposition before the learned Magistrate, that the writing in question refers to himself and/or to a particular individual or a determinate class/ group of individuals. Therefore, this contention also has no basis and the same requires to be rejected.

17. The counsel for the complainant has relied upon the following two decisions of the Supreme Court; 1. Akhilesh Prasad v. Union Territory of Mizoram, reported in : 1981CriLJ407 , 2. Chandra Deo v. Prokash Chandra reported in : [1964]1SCR639 :

Questions involved in the aforesaid two decisions were quite different Neither the facts of these cases, nor the principles laid down in either of the two decisions are in any way relevant for the determination of the question involved in this case and hence it is not necessary to discuss them in any further details.

18. In this ease, the petitioner-accused does not dispute the writing and publication of the editorial. His case is : 'read the editorial as a whole or in any manner you like; the writing printed and published does not disclose any offence whatsoever. The writing is not in respect to the complainant or in respect to any particular individual or a determinate group of persons as distinguished from the rest of the members of the community and whose identity can be established As stated in the Resolution passed by the Executive Committee of the Bar Council identical complaints have been filed by Mehsana Bar Association and Chanasma Bar Association. The counsel for the petitioner-accused has also submitted that in respect of the publication of this very writing, the petitioner-accused is facing prosecutions from other parts of the State also. Since the agitation in respect of which the editorial is written concerned all the lawyers, it is not unlikely that there may be similar complaint against the petitioner-accused from other parts of the State also. In this view of the matter, when the authorship of the editorial is not disputed and the contention is that the averments made in the complaint as well as the writing of the editorial do not disclose an offence of defamation, the ends of justice require that the case should be decided at this stage only. If this course is adopted, both the petitioner-accused and the complainant would know their respective position. Multiplicity of litigation will be avoided and the ends of justice will be secured.

19. At this stage it will be appropriate to have a quick look at the relevant provisions of law. Section 499 IPC in so far as it is relevant reads as follows:

499. Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said except in the cases hereinafter exempted, to defame that person.

Explanation 1 : x x x x

Explanation 2: - It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3 & Expln. 4 : x x x

It is not necessary to refer to the rest of the provisions of the section for the purposes of this case.

20. The section is aimed at the protection of the reputation of persons. If one looks at the definition of the offence, it contains three important elements, namely, 1. the person; 2. his reputation, and 3. the harm to reputation of the person with necessary mens rea.

If the imputation is defamatory per se, necessary mens rea will be presumed. No resultant harm may be proved if the expression itself is defamatory per se. The maker of the statement must know that it will harm the reputation of one concerning whom the same is made. Explanation I includes even a dead person. We are not concerned with this explanation. Explanation 2 embraces imputation concerning a company or association or collection of persons as such. The gist of the offence is dissemination of harmful imputation concerning a person. It is not necessary to refer to other explanations for our purposes.

21. In this case, at this stage it may be assumed for the sake of argument that there can be defamation for an indeterminate class of people such as 'Lawyers'. In that case, the question that would arise for determination would be : Does the editorial lower down the prestige and reputation of the Lawyers' as a class? The term 'reputation' means, 'what is generally said or believed about the persons or things' character'. The two terms 'character' and 'reputation' are prone to be confused. Character, in the context, would mean, fortitude or moral constitution or strength of a person. It has no relevance with the belief or opinion of others in respect to a person. Therefore, character is what a person 'actually is', while 'reputation' is what neighbours and others say 'what he is'. The man may have, in fact, a good character and yet suffer from bad reputation or vice versa. In short, 'reputation' is, what is reputed about, that is to say, common knowledge or general opinion in respect to a person. It is the estimation in which a person is hold by others and not the opinion which he himself may have about himself. It may be said that 'reputation' is a composite hearsay, being the community's opinion which implies the definite and final formation of belief by the community. By no stretch of reasoning the term 'reputation' can imply ones own belief about himself. A lawyer may think that he belongs to a noble profession and his activity as a lawyer is on the highest stage of the mundane plane. Collectively, all the lawyers taken together, also may hold such opinion about their profession. They may call the profession learned and noble' and 'dedicated to the service of the people'. But while determining as to what is their 'reputation' in the society, their own opinion about themselves and about their profession is irrelevant even though the same may be 'extremely conservative, reasonable and therefore correct'.

22. Hence, before answering the question as to whether the editorial has lowered down the reputation of lawyers as a class, it will be necessary to refer to the different writings which give us an idea as to the opinion of the people or the community at large in respect to the lawyers and legal profession. Therefore the submission made by the counsel for the Bar Council that while deciding the question involved in this matter, other literatures should not be referred to at all cannot be accepted.

23. K. Marx described 'lawyer as a paid wage-labourer in a capitalist society'. (Communist Manifesto, Penguin edition, 1967, page821 Mahatma Gandhi, himself a great lawyer, has said about lawyers and legal profession to the following effect:

The profession teaches immorality; it is exposed to temptation from which few are saved.... The lawyers, therefore, will, as a rule, advance quarrels instead of repressing them.... It is one of the avenues of becoming wealthy and their interest exists in multiplying disputes.... They (lawyers) are glad when men have disputes. Petty pleaders actually manufacture them (disputes).... It is the lawyers who have discovered that theirs is an honorable profession....' (Pp. 143-4, 'The Selected Works of Mahatma Gandhi Vol. IV. The Basic Works. 'Navjivan').

24. Swift has referred to lawyers as a society of men bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white; according as they are paid. To this society all the rest of the people are slaves. (Gullivers Travels).

25. Justice Krishna Iyer's Committee has noted:.that the legal profession is merely an aspect of 'the capitalistic society', which is an 'acquisitive society' where the 'greatness of a lawyer is measured by the amount of the fees he charges and not by the quantum of social service which he renders as lawyer.

26. Mr. Justice O. Chinnappa Reddy, Judge of the Supreme Court, inaugurated the Chandigarh Unit of the Indian Association of Lawyers on May 3, 1982. In this inaugural address he observed:.In fact, if we but walk across the road, stop a few of the passers-by and ask them what they think of us lawyers, we may learn quite a few home truths. We will learn that they view us as expert craftsman, proficient in the mysteries of the mystic language of the law, generally available for sale to the highest bidder to do the bidding of other men. If the person is gifted with a sour tongue he may even describe us is parasites.... The plain truth of the matter is that ours is an occupation which involves our espousing other people's causes but always for a nice, round, fat fee.... And, of ten enough, the legal profession has been identified not as the champion of justice, social, economic and political but as the able mouthpiece and the loyal lieutenant of powerful economic, social and political, special interests....

(see 'Mainstream', a weekly published from New Delhi, dated May 22, 1982).

27. The Judicial Reforms Committee appointed by the Government of Gujarat and headed by Shri P.N. Bhagwati (then Chief Justice of Gujarat High Court) has observed:.the lawyer though indispensable to society is yet universally unpopular. It was not without reason that Shakespeare made one of his characters in Henry IV say emphatically: 'The first thing we do, let us kill all lawyers'. Napolean rudely described them as 'nothing but leeches'. Dr. Beniprasad, the famous historian, speaking of Jehangir's system of administration of justice said : 'Mogul justice had a silver lining: it had no lawyers'. The public image of the legal profession is no better to-day.

28. In an article published in 'Hindustan times' dt. June 28, 1981 written by Shri Krishan Mahajan, the lawyers have been described as a tribe of fixers. It is further stated therein that the profession has become no more than a business for earning the maximum amount of money with the minimum amount of work.

29. The counsel for the Bar Council has also referred to certain writings of Mahatma Gandhi from the book 'the Law and The Lawyers' to show that Mahatma Gandhi never referred to lawyers as Kajia Dalals. This was in reply to the submission made by the counsel for the petitioner that Mahatma Gandhi had used the term 'Kajia Dalals' for lawyers. It does appear that Mahatma Gandhi did not use the term 'Kajia Dalals' for lawyers. However, the counsel for the Bar Council was requested to refer to Chapter 6 of the same book under the title 'The First Shock' wherein Mahatma Gandhi has narrated his experience as lawyer at Rajkot where he had gone to practice after being disappointed at Bombay. It is better to quote the experience about the payment of commission in his own words:

I must confess that here I had to compromise the principle of giving no commission, which in Bombay, I had so scrupulously observed. I was told that conditions in the two cases were different; that whilst in Bombay commissions had to be paid to touts, here they had to be paid to vakils who briefed you; and that here as in Bombay all barristers, without exception, paid a percentage of their fees as commission....

After referring to the argument of his brother Mahatma Gandhi has candidly stated:

I was taken in by this plea, and felt that, if I was to practice as a barrister, I could not press my principle regarding commissions in such cases. That is how I argued with myself, or to put it bluntly, how I deceived myself....

30. Learned counsel for the Bar Council wets requested to show any ethical basis for distinguishing the payment of commission to a tout and the payment of commission to a vakil or a briefing lawyer. In essence, would both the types of payments- i.e. payment of commission to a lawyer and payment of certain share of fees to a tout - would not amount to touting? What else is it? Counsel for the Bar Council tried to explain by stating that those were the different days and Mahatma Gandhi made reference to some experience in Rajkot. This is no explanation whatsoever. Counsel for the petitioner then posed a question : Probably is it not left to the saintly people like Mahatma Gandhi to make confession regarding 'self deception' and render satisfactory explanation? Is it a task to be performed by ordinary mortals!

31. The counsel for the Bar Council referred to a lecture given by Mr. Justice Venkataramiah Hon'ble Judge of the Supreme Court AIR 1983 Journal Section, P. 58 wherein the legal profession has been referred to as the only profession in the country, which has found its place of pride in the Constitution of India.

32. True, there is a brighter side of the picture. The counsel for the Bar Council and the complainant could have pointed out the recent developments in Gujarat itself. Gujarat has shown a novel path to the nation in the technique of resolving disputes by innovating and applying the machinery of 'Lok Adalat' to the pending cases in courts. It is a matter of common experience and knowledge that under proper leadership and in a congenial atmosphere the 'Lok Adalat' has brought about wonderful results. Even now, except for a brief interlude, it is working well Lawyers of Gujarat have shown a superb sense of social awareness and sacrifice. Without their selfless service, the 'Lok Adalat' movement would not have reached a take-off stage at all. Similarly lawyers of Gujarat displayed a sense of devotion and sacrifice when (hey whole-heartedly took the cases of dependents of the victims of accident of 'Shantinath Silk Mill(Surat)'.

33. The counsel for the petitioner conceded that there is a brighter side of the picture. But (his is not all. There is yet another side of the picture, probably more popular and almost universally accepted. After referring to the various currents of thoughts reflected in literary works as well as in public speeches. Law Reforms Committee Report, etc. all that is submitted by the counsel for the petitioner-accused is that there is also an another aspect of the legal profession. People make their own assessment according to the extent of their knowledge and experience. His submission is that the appraisal and assessment made by the petitioner, an Editor of a daily newspaper regarding the action of the lawyers extending the strike should be judged in the aforesaid background of different currents of thoughts.

34. The occasion for writing the editorial was the decision of lawyers to extend the strike. The cause of agitation was the interference by the Govt. in judiciary or the transfer and appointment of Chief Justices of different High Courts. The main grievance is that the lawyers have been described as 'Kajia Dalals'.

35. The petitioners counsel submitted that the term 'Kajia Dalai' used in the editorial should be examined from the larger perspective of the place of lawyers in the society and their functions and duties towards the society. In this context their conduct and their day-to-day behaviour, their relations with the clients, their life style, their behaviour pattern and the overall reflection of the people at large should be taken into consideration If there is another aspect also, which is certainly not honourable, should it not be placed by a responsible editor before the public? If the editor fails to place before the public another side of the picture (probably more realistic one), will he not be failing in his duty as a journalist? If he depicts only a partial picture before the public, will he not be guilty of presenting a grotesque and distorted version of general opinion or belief prevailing in the society regarding the reputation of lawyers' class as a whole

36. In this background, the following aspects need to be examined:

(1) Is this term 'Kajia Dalals' capable of being understood in three-four different meanings? If so, which one is to be taken into consideration? In the context which one fits in?

(2) In which context the editorial was written? The context was - the cause for the strike and the decision to extend the strike.

(3) Does the editorial refer to any individual or to a determinate class of people as distinguished from the rest of the members of the community? Is the writing defamatory and the publication thereof would amount to an offence under Section 500 of the Indian Penal Code?

37. Meaning of the term 'Kajia Dalai' as given in different dictionaries, are as follows:

1. One who earns by inciting disputes or by becoming an arbitrator.

2. One who makes arrangement for disputes to fight in court of justice.

3. A man who stays away after inciting quarrels, and

4. The term used for lawyers in derision.

In the editorial it is stated that 'in a sense lawyers are brokers in dispute'. After referring to the old system of settlement of disputes, the editor asks, where was the system of lawyers prevalent in the past on a wider scale? A further question is asked, 'is it not that the brokers of dispute are necessary only where there are disputes?' In the context it appears that the term 'Kajia Dalal' has been used to mean, one who earns by becoming an arbitrator of disputes or to mean that one who makes arrangement for dispute to fight in court of justice. The term does not seem to have been, used even prima facie in derision or in contemptuous sense. True, (he term 'Kajia Dalal' if used in respect of lawyers will certainly cause some resentment. But simply because an adjective or description causes resentment, it would not become defamatory.

38. Now the context in which the editorial has been written be examined The lawyers decided to extend the strike and that decision provided an occasion to the petitioner-accused for writing the editorial. When the lawyers take up the weapon of boycott in their hands and resort to cessation of work, how will they be looked upon by the people who have granted monopoly to their profession? The counsel for the Bar Council stated that for just cause the lawyers can and should take up such weapon of boycott in their hands. In support of his submission he referred to the writings of Mahatma Gandhi from the book 'The Law and the Lawyers', Chapters 27, 28 and 36. Mahatma Gandhi exalted the role of lawyers in 'swadeshi' movement and called upon them to sacrifice for the cause of nation'. It is not understood, how boycott of courts by lawyers which was considered a good weapon in fighting against an imperialist rule can be justified by the legal profession in the country today.

19. Since 1947, the country has become free from the imperialist yoke. Since 1951, it has set before itself the objectives of rapid socio-economic development through the mechanism of National Plans. The nation has determined to establish social order based on egalitarian and socialist principles. Can this goal be achieved by resorting to strikes? Economic development calls for sacrifice and rapid economic development demands both stricter standards of discipline and sacrifice. One is reminded of Stakhanovite and Subbothik movements of the early days of soviet economic development. Alexander Stakhonovite - a miner, set record by producing 14 times the norm of coal output fixed for average miner. 'Subbothik' movement was for voluntary contribution of labour for the benefit of society. It had started in early 1920s and had become popular. Nearer home, Mahatma Gandhi established a tradition in the trade union organized with his blessings and guidance (i.e. Majoor Mahajan in Ahmedabad) that workers should never resort to strike and should always solve their problems by negotiations with the management. Why is this not considered worthy of emulation? Socio economic development is not likely to be achieved by resorting to strike, and the strike which involve no sacrifice, no risk, leads nowhere. When lawyers abstain from work, what do they suffer and sacrifice? They earn well paid rest. Then, who suffers the consequences of strike. At whose risk this weapon is raised.

40. Be it realised that the legal profession is an autonomous self regulating profession. The lawyers have their own self-regulating machinery. The State Bar Council and the Bar Council of India are repositories of the professional ethics. As far as the relation between the members of the legal profession and the public at large is concerned. Bar councils are the custodians of the interests of the people. Here reference may be made to the provisions of the Bar Council of India Rules, 1975. A lawyer is an 'officer of the court'. He is so described in the Rules framed under the Advocates Act. The Preamble to the Statutory Rules (standards of Professional Conduct and Etiquette) shows that an advocate practicing today is expected to show the same high standards of rectitude and moral behaviour as was expected of him in the past, i.e. prior to independence of the country.

41. As per the provisions of Bar Council of India Rules 1975, an advocate is bound to accept a case for reasonable fees, except under special circumstances which may justify refusal, moreover he is not permitted to withdraw from an engagement, once he had accepted the same', without sufficient cause and unless he has given sufficient notice to his client (see Rules 11-12). In this context, observations made by a leading lawyer of the country be noted:

The boycotting of a court by members privileged to practice, there is virtually holding justice to ransom. It certainly contributes to the law's delay.

'Do this - or else':- is implicit in an organised abstention from the courts by those who have held themselves out as practising there. It is a threat to the administration of law and undermines the rule of law which is the bedrock of our Constitution.

(see - Boycott - a Lawyer's Weapon? article by Shri F.S. Nariman)

Thus, even a leading member of the Supreme Court Bar and an important office bearer (Shri Nariman was Vice President at the relevant time) of the Bar Association of India, has strongly expressed his views against the strike by lawyers. Then what is wrong if an ordinary citizen also expresses his views and feelings on this question? Is he not required to be heeded to patiently?

42. As stated hereinabove, withdrawal from work by a lawyer without sufficient cause and without sufficient notice to his client may be considered to be even unlawful. In Industrial Law in certain situations and particularly in public utility services there is no distinction between an illegal strike and unjustified strike. A strike may be legal but it may be unjustified, but a strike which is illegal cannot be justified. The two propositions that a strike is illegal and at the same time justified cannot in Industrial Jurisprudence co-exist at least in public utility services and in certain specified situation, (see I.G. Navigation & Rly. Co. v. Their Workmen, : (1960)ILLJ13SC . Is it necessary that someone should approach court and law should be laid down in respect to the strike by lawyers?

43. The editor feels that the lawyers had proceeded on an unjustified strike on a question with which they were not directly connected. As disclosed by the complainant in his deposition before the trial court the agitation was in protest against the interference by the Government in judiciary. The Bar Council Resolution states that the agitation was about the appointment and transfer of Chief Justices. The common man and a man of ordinary understanding in life, is likely to ask a question, how the lawyers are concerned with the appointment and transfer of judges? The question may be justified, may not be justified. But the same has got to be viewed from the angle of such ordinary people in life. If lawyers feel that they can become the surest bulwark for the independence of judiciary against the executive inroads in the administration of justice, it is necessary for them to educate public opinion in this regard. And public opinion cannot be cultivated by resorting lo strike which involves no risk, no sacrifice and which is nothing but a well paid holiday. A section of the people may be holding the views as expressed by the petitioner-accused. Like any other common man, the editor has felt that the lawyers who are supposed to argue their cases before any judge, why should they take up the cause of appointment or non-appointment or late appointment of a particular judge? Or, why should they believe that on account of such happenings, the independence of the judiciary is lost or is likely to be lost? Is he not entitled to ask....: 'On such occasions, why should lawyers inflict punishment on their clients? Is it necessary that for no fault of the litigants they should be punished? Neither the judges nor the people are responsible for thy interference in judiciary by the Government. Then why boycott the court work and penalise the people?

44. After all what are the dangers to the cause of 'independence of judiciary' and from which sources do they emanate? It has got to be conceded that the judges should be insulated from being influenced by the executive. But it should not be forgotten that in modern day complex society, the powerful economic interests are in a position to influence each organ of the State. The public limited companies in private sector come to courts with cases involving stakes of crores of rupees. In matters pertaining to excise and customs duty and such other fiscal laws, the claim of refund of amount which the industrial and big business houses make, run into thousands of crores of rupees. Such claims have probably no parallel in any other country of the world. See 1983 (2) 24 Guj LR 1108 : 1984 Tax LR NOC 52. Para 31. Thus the corporate sector has continuous flow of litigation involving substantial stakes both in terms of money and also in terms of principles.

45. If a Judge after retirement gets some political assignment or position in Government, his conduct is being commented upon. This criticism may be right, may not be right. But if it is right, how can the conduct of a judge, who gets himself engaged in big business and industrial houses after his retirement can be justified? Why such conduct is not criticised? Is it not necessary to ponder over the question that the necessary safeguards are required to be thought out and implemented so that the judges can be insulated from being influenced by big business and industrial houses? Is it also not worthwhile raising a question : are the Judges not required to be independent from the influence of the members of the Bar also? In fact such a voice was raised when this very agitation of lawyers in Gujarat had reached its climax. That was the voice of Shri Kundanlal Dholakiya, a practising lawyer and Ex-Speaker of the Gujarat State Legislative Assembly. Thus, the threat to the independence of judiciary does not emanate only from executive. It also emanates from powerful economic interests in the society who exert their influences by adopting subtle and imperceptible means. Such threat may also emanate in a veiled manner even from the members of the Bar. Is there no threat to the independence of judiciary from print media also?

46. These questions are posed only with a view to indicate that the question of independence of judiciary is not as simple as it is many a times thought to be. It is a many faceted problem. But, in the ultimate analysis, the secret of independence lies in the courage of conviction as well as in the capacity to resist outside interference. And courage is not a commodity which can be bought or borrowed. It is not capable of being advanced on loan either temporarily or on permanent basis. No agitation - whether peaceful or violent - can produce and supply this commodity, called courage. It is something inherent and an innate quality of every individual. One who thinks that his independence can be protected by some outside agency is sadly mistaken. Such outside agency may be a strong Bar or sympathetic Executive. It makes no difference. The moment one pins his hope for the protection of his independence on some outside agency, from that moment onwards he loses his independence. And how can Judges look forward to legal profession for the protection of their independence? Even as stated by Justice O. Chinnappa Reddy - legal profession is often identified 'as the able mouthpiece and the loyal lieutenant of powerful economic, social and political special interests'. How Judges can be made to depend upon the loyal lieutenant and able mouthpiece' of vested interests? Does the question not require deeper study and further research?

47. Yes, as suggested by the counsel for the Bar Council the questions involved in the case were required to be examined from the larger perspective. That is why, certain contours of the wider perspectives have been indicated hereinabove with the hope and trust that all concerned will ponder over the discussion made hereinabove in right spirit without in any way being influenced by narrow consideration of one's own self. These questions cannot be examined from the view point of the complainant who himself narrates that he is engaged in the business of lawyering and who does not describe his occupation as profession.

48. Now let us consider the question, does the publication of the writing amount to an offence of defamation? To whom does the editorial refer? In respect of whom the alleged insinuating remarks are published? Person in respect of whom the alleged insinuating remarks have been made, must be searched out. After specifically referring to nine sentences (which have been underlined and marked (1) to (9) in the alleged defamatory writing reproduced hereinabove), the complainant alleges in the complaint-

(1) that the accused had an intention to defame the constitutional and systematic agitation;

(2) that the accused had intended to publicly lower down the reputation and prestige of lawyers;

(3) that by the writing in question, the reputation of lawyers' world (Vakil Alam) and that of the complainant is lowered down;

(4) that the comment has been made without taking into consideration the scope of the functions and duties of lawyers;

(5) that the accused has, without going into the merits of the agitation of lawyers, depicted them as 'Kajia Dalals' which term according to the complainant means 'tout', and

(6) that by publishing the writing the accused has defamed all lawyers and the complainant.

49. Thus, even according to the complainant, the editorial does not refer to him personally or to any other individual. The same is the position in the deposition given by him before the learned Magistrate. In the complaint at least at six to seven places the grievance is made that the defamation is that of lawyers. In paras 4 and 5 of the complaint, the complainant has referred to himself in conjunction with the defamation of the entire class of lawyers. Reading the complaint as well as the deposition of the complainant, it is absolutely clear that the complaint is not with respect to an offence of defamation of the complainant or any other individual person. The grievance, if any, is not an individual grievance of the complainant. Whatever is the grievance, the same is shared by all the members of the lawyers' fraternity. The complainant speaks of defamation of lawyers as a class. There is no mention of defamation of a particular section of lawyers. At the most by implication it may be said that the editorial refers to the lawyers of Gujarat. By no stretch of reasoning it can be said that in the complaint or in the deposition of the complainant recorded on oath, anywhere even it is remotely suggested that the alleged defamation is in respect of a determinate or identifiable section/class of lawyers as distinguished from the rest of the members of lawyers' fraternity and whose identity can be established On the contrary, it is stated in the complaint itself that the editorial is published with an intention to defame the constitutional and systematic agitation and it lowers down the prestige of lawyers' world (Vakil Alam). Thus, as per the case put up by the complainant, both in his complaint and in his deposition before the learned Magistrate, it is clearly stated that the editorial is in respect of lawyers as a class. It does not refer to a particular section of lawyers or any determinable class/group of individuals.

50. Counsel for the Bar Council contended that the editorial refers to a determinate section of lawyers. According to him, a group of lawyers who had proceeded on strike has been referred to in the editorial and therefore the editorial is in respect of lawyers who were on strike. However, submission is contrary to what is stated in the Resolution of the Executive Committee of the Bar Council. The Bar Council itself has not read the editorial so as to referable only to a determinate section of lawyers. It would be profitable to quote the relevant part of the Resolution dt. February 2, 1984 passed by the Executive Committee of the Bar Council (which as stated by the counsel for the Bar Council, has been approved by the General Body of the Bar Council later on). After referring to the letter of the Vice President of the Visnagar Bar Association, it is stated in the Resolution as under:.Since the contents of the said Editorial, are concerning all the Advocates. Vice-President of Visnagar Bar has requested this Council to intervene in the said matter by engaging an Advocate. Since the matter is of an urgent nature and final hearing is fixed on 10.2.1984, and since the subject matter of said petition is concerning the Advocates class as a whole, this Committee unanimously resolves that the State Bar Council should intervene in the said matter to support the cause and case of original complainant. It is further resolved that Shri Giriraj N. Desai, Advocate be requested to appear and intervene in the said matter for and on behalf of the Bar Council and to support the cause and case of the original complainant.

Copy of this Resolution along with the necessary papers be entrusted to Shri Giriraj N. Desai. Advocate to do the needful as per the contents of this Resolution.

51. The contents of the Resolution are very clear. The basis of the decision taken by the Bar Council is to be discerned in the following sentences:

(1) 'Since the contents of the said Editorial are concerning all the Advocates', and

'Since the subject matter of said petit ion is concerning the Advocates Class as a whole'.

This appears to be quite natural. A statutory body like the Bar Council would not and normally should not be interested in individual cases or the cases pertaining to a group of lawyers. The members of the Bar Council appeared to have felt that since the editorial pertained to all the advocates and the subject matter of the case was concerning the advocates class as a whole, it was necessary to support the case. Moreover, there is clear instruction to the counsel, 'to do the needful as per the contents of this Resolution'. There is no ambiguity in the resolution: it speaks of lawyers' class as a whole. Yet the submission is made to the effect that the editorial refers to a group or section of lawyers of Gujarat who had proceeded on strike.

52. The complainant himself nowhere refers to a determinate section or a group of lawyers, in respect of whom the insinuating writing is published. He positively refers to the entire world of lawyers (Vakil Alaml). That is the footing on which the Bar Council proceeds. That is how the instruction is given to the counsel for the Bar Council. As far as the record of the petition is concerned, the fact remains that the Bar Council has proceeded on the footing that the editorial pertained to all the lawyers and the subject matter of the petition was concerning lawyers' class as a whole. Thus the submission is contrary to the facts stated in the complaint and it is not even supported by the material on record.

53. Examining the record of the case, the following position emerges:

(1) The editorial does not refer to any specific individual whomsoever. It does not refer to any institution of lawyers, that is to say, to any Taluka Bar Association, District Bar Association or High Court Bar Association or State Bar Council of Gujarat, or the Bar Council of India. The editorial positively refers to lawyers in general.

(2) The complaint is filed by the complainant in his individual capacity. He himself is a lawyer of about 20 (twenty) years standing. The complaint is not filed at the instance of or on behalf of any Bar Association. In the complaint or in the examination before the learned Magistrate, nowhere it is stated that the writing in question pertains to a determinate section of agitating lawyers and he being a member of that determinate section of lawyers, has been aggrieved by the writing in question.

(3) On the other hand, it is clear from. the complaint and the examination of the complainant before the learned Magistrate that the allegation is that the editorial is in respect of the entire world of lawyers (Vakil Alam) whose reputation is affected by the publication of the editorial. It is Categorically stated in the complaint that the editorial is aimed at defaming the constitutional and systematic agitation against the interference in judiciary by the Government.

(4) It is also stated in the complaint that the intention of the accused was to harm the reputation and prestige of the lawyers and to lower down the same in public. The complaint refers to lawyers en masse.

(5) Whenever the complainant has referred to the reputation and prestige and the lowering down thereof, the reference is made to the reputation and prestige of lawyers' class as a whole. Even in the examination before the learned Magistrate the complainant has categorically mentioned that the reputation of our business (Amara Dhandha Ni Abaru) is lowered down and commented upon.

(6) It is further stated in the examination before the learned Magistrate that his lawyer friends and the entire world of lawyers (Vakil Alam) were assisting in the cause of justice and were engaged in the noble and reputed business (dhandha) of providing best possible justice to the people. It is stated that an attempt to bring down the reputation has been knowingly made.

54. The editorial is in respect of lawyers. The occasion for writing the editorial was that the lawyers had decided to extend their strike up to November 6, 1983. The complainant is also clear that the editorial is in respect of lawyers' class as a whole. According to him, it is aimed at defaming and lowering down the constitutional, peaceful and systematic agitation of lawyers. Moreover, it lowers down the prestige of lawyers as a class. This is the basis on which, the complainant has proceeded. On this very basis the Bar Council has resolved to intervene in the proceedings. The reading of the entire editorial makes it abundantly clear that it does not refer to any particular group of lawyers. It refers to lawyers class as a whole. Therefore, on this basis only the question is required to be examined and answered. If the writing which is published in the newspaper does not refer to a person or to a determinate class or group of persons, but if it is in respect to a profession or in respect to a particular agitation, would it amount to an offence punishable under Section 500 IPC? The position is covered by a decision of the Supreme Court in the case of C. Narasimhan v. T.V. Chokkappa, reported in : 1973CriLJ52 . After referring to Explanation 2 to Section 499 of the Indian Penal Code, the Supreme Court has observed as follows At P. 56 of Cri LJ:.The language of the Explanation is wide, and therefore, besides a company or an association, any collection of persons would be covered by it. But such a collection of persons must be an identifiable body so that it is possible to say with definiteness that a group of particular persons, as distinguished from the rest of the community, was defamed. Therefore, in a case where Explanation (2) is resorted to, the identity of the company or the association or the collection of persons must be established so as to be relatable to the defamatory words or imputations....

In the aforesaid case, the Supreme Court has also referred to the Law of Crimes (22nd Edition) by Ratanlal and Dhirajlal. It will be profitable to quote the relevant portion from the same book (page 1317):

If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual.' Where a writing inveighs against mankind in general, or against a particular order of men. as, for instance, men of the gown, it is no libel, but it must descend to particulars and individuals to make it a libel, e.g. the religious society called the S. Nunnery, or 'certain persons lately arrived from Portugal and living near Broad Street.' The imputation must be capable of being brought home to a particular individual or Collection of individuals as such....

55. In this case, it is an admitted position that the editorial does not refer to any particular person. Then, does it refer to 'a company or an association or collection of persons as such'? The words 'as such' are important. The editorial refers to lawyers class as a whole. Since the occasion for writing the editorial is the decision to extend the strike up to November 6, 1983. there is reference to the said decision. But the term 'Kajia Dalal' which is defamatory according to complainant has been used in respect to the 'lawyers'. Wherever the term 'Kajia Dalal' is written in the editorial, it takes in its sweep all the lawyers. In fact, even the counsel for the Bar Council made submission on the basis that the question involved in the petition concerns every one in the profession. According to him, even the judges are covered by the statements made in the editorial. Therefore the writing is not capable of being brought home to a particular individual or a collection of persons as such. The grievance if any is to be shared by all the members of the profession. It is not distinctive to any particular individual or group of individuals.

56. In this connection reference may be made to the decision of this High Court in the case of Raj Kapoor v. Narendra Desai, reported in (1974) 15 Guj LR 125. It was a case in connection with a film known as 'Kal. Aaj Aur Kal'. In the picture, an orthodox section of Brahmin community makes certain contemptuous remarks against Bhangi community in general. The complainant fell that he was defamed by such remarks. Therein the Court held to the effect that, uttering contemptuous words against Bhangi community in general, would not amount to defamation as defined in Section 499 IPC. It is further held in that case that, even it ii is believed for the sake of argument that the film 'Kal. Aaj Aur Kal' contained sonic imputations against the Bhangi community in general to the effect that the said community was held lower in status in the eyes of the Brahmins, that would not, by itself, amount to an act of defamation. The alleged remarks were not directed against any particular group of members of that community who could be identified. There was no imputation against the complainant as an individual. If he felt that as a member of the 'Bhangi' community, he was defamed, that would not entitle him to maintain a prosecution for defamation unless the imputation was against him personally. The impugned scene in the said film was general in nature. It was not directed against any individual or particular group of individuals who could be identified or particularized.

57. In the instant case also, writing published is relatable to the entire class of lawyers. The writing does not refer to any identifiable body of persons. So also the writing is not in respect to any group/class of persons as distinguished from the rest of the community of lawyers. To make out an offence of defamation the writing should be such that a person/persons to whom the writing is relatable can be identified. It is not even the case of the complainant that the writing is referable to particular group of persons as distinguished from the rest of the community of lawyers. Since the imputation, if any, is in respect of the lawyers' class as a whole and the same is not referable to a person or a group of persons who can be identified and can be distinguished from the rest of the members of the legal profession, there is no offence of defamation.

58. In this case, the complainant himself is not an aggrieved person, since the writing does not relate to him individually. As provided under Section 199 of the Cr.P.C., unless it is prima facie shown that the complaint is filed by an aggrieved person, the Court is precluded from taking cognizance of the case. Thus, in the instant case, cognizance of the case taken by the Court is not in accordance with the provisions of law. Therefore also the trial Court cannot be permitted to record evidence in a case of which cognizance is not taken legally. As per the provisions of Section 199 of the Cr.P.C. cognizance of an offence under Chapter XXI, i.e. defamation, could not have been taken by the trial Court 'except on a complaint made by an aggrieved person'. In the instant case, the complainant cannot be said to be an aggrieved person.

59. At this stage it may be considered as to why the imputation made by a person in respect of an indeterminate section of the society would not amount to an offence. Offence of defamation aims at the protection of personal reputation of an individual. Explanation 2 to the section expands the meaning of 'person'. But at the same time the expansion does not widen the scope of the term 'persons' to such an extent that even persons belonging to an indeterminate class or group may be covered. If this is done, it would amount to putting restrictions on the fundamental right of a citizen regarding freedom of speech and expression. As held by the Supreme Court in Dabholkar's case : [1976]2SCR48 (supra) 'the integral bond between the lawyer and the public is unbreakable. And the vital role of the lawyer depends upon his probity and professional life-style. Be it remembered that the central function of the legal profession is to promote the administration of justice.' In the aforesaid decision it is further held by the Supreme Court that the legal profession is a public utility of great implications and it is a monopoly statutorily granted by the nation. When members of such a profession proceed on strike and extend the period of strike, can an enlightened citizen whose duty is to express views on public issues remain silent? Would he be not failing in his duty if he remains silent? If he speaks something in exercise of his right of freedom of speech and expression which relates to the entire class of lawyers and which has reference to an action which affects thundered society, would it amount to an offence? If this amounts to an offence, it would directly come in conflict with the fundamental right of citizens. A citizen has right lo say what he feels about I he. function and duties of tlumembers of a profession which is a public utility as held by the Supreme him! So lung as he docs not (ouch any individual or even a group or collection of individuals who can be distinguished from the rest of the members of the profession, he would be within his rights to make comments.

60. In this view of the matter, the language of Explanation 2 to Section 499 I.P.C. cannot be construed so as to cover even an indeterminate class of persons. Doing so would amount to-

(1) crossing the limits of the scope and purpose of the section. The scope and purpose of the section is to protect the personal reputation of an individual and not that of social and public institutions or professions.

(2) as encroachment of ones fundamental right to freedom of speech and expression. A citizen cannot be restrained to speak (or print and publish) about a particular profession - be it a legal profession or medical profession. Judging from the aforesaid point of view also once it is held that the editorial is in respect of lawyers as a class and does not refer to any individual person or a determinate collection or group of persons as such, it would not amount to an offence punishable under Section 500 I.P.C.

61. Counsel for the Bar Council submitted that the editorial is relatable to the section of lawyers of Gujarat who had decided to extend the strike up to November 6, 1983. The submission is that in the editorial there is a specific reference to-

(1) the region of Gujarat,

(2) the controversial agitation.

(3) the decision to extend the strike up to November 6, 1983.

(4) the words 'advocates and lawyers' expressing that the lawyers have position and status in the society: and

(5) the phrase 'Aava Kajia Dalalo', which restricts the reference to lawyers who had proceeded on agitation.

It was submitted that the term 'Kajia Dalal' has been used six times and therefore prima facie it should be construed, that the use of the term is deliberate and it is not a casual reference. The argument proceeds that since the writer knew that the lawyers had status and reputation in the society, and even then the term 'Kajia Dalal' has been used which indicates that the same has been used contemptuously and to derogate the section of lawyers.

62. The advocates have been described as 'Kajia Dalals'. Wherever the term 'Kajia Dalal' has been used in the editorial it is in respect of lawyers' class as a whole. The writer specifically states that in another sense the lawyers are brokers in disputes, i.e. Kajia Dalai. The author does not say that lawyers of Gujarat who have proceeded on strike are 'Kajia Dalals'. The controversial agitation in Gujarat and the decision to extent! the strike provided an occasion to the accused to express his views as an editor of a daily newspaper. The subject 'boycott of Court work by lawyers' had a topical relevance and value. Simply because the occasion and the subject matter to write the editorial are provided by the lawyers of Gujarat, it cannot be said that the description 'Kajia Dalals' given by the Editor is restricted to and relatable to a particular section of lawyers in Gujarat.

63. The title of the editorial is 'Whither the dispute-brokers'. There is another sentence occurring in the editorial and that is 'in a sense the lawyers are brokers in dispute'. The title and the sentence extracted hereinabove clearly indicate that the term 'Kajia Dalal' refers to the entire class of lawyers. It is not permissible to read the sentences containing the term 'Kajia Dalal' separately out of context and then construe the same with a view to determine the scope or extent of its coverage. If one reads the editorial in its entirety. It becomes clear that the term 'Kajia Dalal' has been used as synonymous with lawyers. The term 'Kajia Dalal' as far as the editorial is concerned does not refer to a limited section of lawyers. The editor does not make any discrimination whatsoever. He takes in his sweep all the lawyers when he uses the term 'Kajia Dalal'. Therefore the argument that the editorial refers to a determinate section of lawyers in Gujarat, namely, the lawyers who were participating in the agitation, cannot be accepted. As stated hereinabove, even the complainant has not understood the term 'Kajia Dalat' in that, sense. So also the Bar Council has not understood in that sense, Independently also, as discussed and pointed out hereinabove. it is not possible to read the term in that restricted meaning. Hence the contention so raised has got to be rejected.

64. It must be remembered that legal profession has a vital role to play. The central function of the legal profession is to promote the administration of justice. The practice of law is a public utility of great implications see : [1976]2SCR48 . Thus a lawyer by the very nature of his occupation fills in a public character. Those who fill in public positions must be little thick-skinned and learn to ignore certain criticisms. In this connection reference may be made to the decision of the Supreme Court in the case of Kartar Singh v. State of Punjab, reported in : 1956CriLJ945 , wherein it is observed At p. 947 of Cri LJ-

Those who fill a public position must not be too thin skinned in reference to comments made upon them. It would often happen that observations would be made upon public men which they know from the bottom of their hearts were undeserved and unjust yet they must bear with them and submit to be misunderstood for a time.... Whoever fills a public position renders himself open thereto. He must accept an attack as a necessary, though unpleasant, appendage to his office.... Public men in such positions may as well think it worth their-while to ignore such vulgar criticisms and abuses hurled against them rather than give an importance to the same by prosecuting the' persons responsible for the same.

Would it not have been better to ignore the editorial even if one considered the writing of the editorial defamatory?

65. However, a considerable section of the lawyers themselves appear to have forgotten the true nature and character of their occupation. The complainant is an advocate of 20 years standing. According to the Resolution passed by the Executive Committee of the Bar Council he is the President of Visnagar Bar Association. He can be said to be a senior lawyer being in the profession for last about 20 years. In engaged in the business of lawyering (Vakilathno Dhandho) for last about 20 years. He further states that his principal place of business is Visnagar. Even in the examination before the trial Court he stated that the insinuating words in the editorial are likely to harm or lower down the reputation of his business (Dhandhani Abru. Now if the complainant himself describes his occupation as business and not as profession, how can an editor of a newspaper be expected to describe lawyers as anything but dispute brokers? If lawyering is business, then brokerage will be an integral part of the business. If one does business in disputes, would he not be described as a dispute broker?

66. In the aforesaid light the editorial may be examined. The editor puts the profession in an exalted position. He says that the lawyers have a place and position in the society. He reminds them of their role and poses the question, should they go on strike? According to the editor the lawyers have nothing to do with the question on which the agitation was started. The thrust of the editorial is that the lawyers should not have gone on strike. It did not behave to the legal profession to go on strike. Therefore, if one sees the editorial in proper light, ignoring some unpleasant expressions and coarse language, the sum total is that the lawyers should not have resorted to strike. Thereby they were causing harm to their own profession. They were not serving the people by resorting to strike. In the end he wants that before it becomes too late it would be better if the lawyers swerve away from the mistaken path. Thus viewed from this angle, the editorial does not refer to any individual or to a determinate group or class of persons. It refers to the profession as a whole, that it to say, the entire class of lawyers. It refers as stated by the complainant himself, to the agitation started by lawyers. Though some unpleasant words are used, these words would not amount to defamation if understood in proper light. The term 'Kasia Dalals' is not per se defamatory inasmuch as it has four different meanings. If read in proper context, it applies to theentire class of lawyers. Therefore it would not amount to an offence under Section 500 of the Penal Code. Even if some resentment is caused in the minds of the members of the legal profession on account of the use of this term or phrase, it is better to ignore the same keeping the high traditions of the legal profession in mind. Since the lawyers have a public duty and function and (hey fill in public positions, it would behave them to ignore such unhappy and unpleasant assertions rather than be touchy over them. If one wishes to take serious view of such remarks, then the case is for introspection and not for prosecution of the maker of the statement. The continuation of the proceedings before the lower Court against the petitioner would surely amount to abuse of the process of Court and the interest of justice demands that the same be ordered to be quashed and dropped.

67. In the result, the petition is allowed. The order passed by the learned JMFC. Visnagar, to issue process against the petitioner-accused in Criminal Case No. 2003 of 1983 is hereby quashed and the proceedings of Criminal Case No. 2001 of 1983 is ordered to be dropped. Rule made absolute to the aforesaid extent.


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