1. In this matter the petitioner, a pleader in the Munsif's Court at Vishnupur, has obtained a rule against an order of the Sessions Judge of Bankura, upholding a sentence under Section 500 of the Indian Penal Code for defamation, and reducing a fine from Rs. 500 to one of Rs. 100, as to why the conviction and sentence should not be set aside. The case for the prosecution is that there was a suit before the Munsif of Vishnupur in which the petitioner was a pleader appearing for the plaintiff, and the complainant was one of the defendants. The suit was in respect of certain fishery rights, and it appears that the complainant was made a party as he was a mukhia of a social group and as that group claimed the fishery, and he also produced a sanad under which that group of persons claimed a right of fishery in the tank in dispute.
2. While the case was being heard the complainant went into the box, and he was asked by the petitioner whether he was a gambler, whether he was a thief, whether he dined in prostitutes' houses, whether he had driven away his wife from his house, and whether his wife is leading the life of a prostitute. He protested against these questions, but the Munsif apparently took little notice of his protest, and he categorically denied them. He then brought a criminal case for defamation, and after a long and careful trial by the Deputy Magistrate the pleader was convicted and sentenced to a fine of Rs. 500 which fine, as I have stated, was reduced on appeal by the Sessions Judge to one of Rs. 100. The grounds on which the rule has been obtained are firstly, that the questions having been put by the petitioner in the course of judicial proceedings and with reference thereto, and to support the case of his client under instructions, the conviction is bad in law and ought to be set aside; and, secondly, that the questions having been put by the petitioner, while performing his duty as a pleader, the Courts below ought to have presumed good faith on his part, and, in the absence of any evidence of actual malice and without any cogent proof that the petitioner had taken any unfair advantage of his position as pleader for any indirect purpose, the conviction in unsustainable.
3. Now there are certain findings of facts in the first Court, and certain facts which appear from the record and which have not been controverted on appeal. One of these facts is this that some of the defendants in the suit compromised their case with the plaintiff, and that the present complainant was asked by this pleader and by the man who was conducting the plaintiff's case also to compromise the case, and that he refused, and there is evidence that thereupon he was threatened that it would be the worse for him. The evidence is that this took place about a month before the complainant was examined. Further, the complainant was summoned in the case as being a mukhia, and the complainant admitted, and the pleader knew that it was admitted, that the present complainant was there in his capacity as a mukhia. Therefore, it was not a question to ask in the cross-examination to show that he was not a mukhia as it was the plaintiff's case that he was a mukhia.
4. As to the first point the first Court has found, as a matter of fact, that this threat was given, and in appeal there was apparently nothing urged against this finding of fact, and the judgment being one of concurrence it must be held that the Judge also accepted this as a finding of fact. As to the question of his being a mukhia, I refer to it because it was argued before us that the question as to the alleged misconduct of the complainant's wife was put simply to show that the complainant was not fit to be mukhia. As admittedly he was a mukhia, it was perfectly irrelevant to ask this question. There is one other finding of fact and that is this. Vishnupur is not a large town, and the petitioner is a person living there, and there is a finding that the complainant is well known in the town. It is difficult to believe that the pleader did not know enough bout the reputation of the witness he was examining, and that he did not know whether he was entitled to ask these questions or not. These three points appear to me to dispose of any effort which counsel made in the argument which was addressed to us to prove that he acted in good faith. It is also perfectly clear from the latest authorities that the pleader must use a certain amount of common-sense and caution in asking a defamatory question. There may be cases where, under proper instructions, he is entitled to ask questions which are defamatory to the person, so as to impeach his credit.
5. In the present case, unless he had known (I do not see any reason to believe that he did not know) of the good character and the reputation of the witness he was examining, he might-have well asked the questions such as. whether he was a gambler or a thief, so as to cast doubt on the truth of his examination, if he was instructed that this man did bear this character. But here it appears to me abundantly clear, that these questions, and especially the subsequent ones about his wife, were asked with utter recklessness, and with out regard to seeing whether there was any truth in them, and with absolute disregard of whether he was entitled to ask them or not. It seems to me that on this point lack of good faith has been found by the first Court, and this finding has not been upset by the second Court, The evidence is overwhelming to show that these questions were asked not for the good of the case set up by the complainant, but with no other view then publicly to injure the reputation of the complainant. In this view I cannot hold that it is necessary to go into intricate points of law as to how far defamatory questions may be asked, for in this case the findings of fact, in my opinion, clearly show that these questions were asked in absolutely bad faith. In my opinion, therefore, the rule must be discharged.
6. I agree.