1. The petitioner is a pleader who was charged with defamation under Section 500, I.P.C. The Magistrate found that no case had been made out and dismissed the case under Section 203, Criminal P.C. The Sessions Judge however has set aside that order and has directed a further inquiry. This Rule was obtained on the ground that there being admittedly no malice or grudge or want of good faith, etc., the order for further inquiry was wholly illegal. The petitioner was a pleader for the defendant in a certain Title Suit No. 59 of 1930 in the Subordinate Judge's Court at Howrah and it appears that during the cross-examination of one of the witnesses named Kshiroda Moyee Dasi, the present accused, asked the following question: 'Is there any rumor of scandal in the name of Hari's wife.' It is conceded for the purposes of the present ease that was an imputation of unchastity against the woman in question. It appears further that particular question was asked in the course of a commission the actual date of which is in some doubt, but it was either 7th December 1930 or more probably 21st December 1930.
2. It appears that on 22nd December the petitioner was called upon in a letter from the pleader on the other side to disclose the source of his instructions regarding the asking of that question. His reply was a refusal to do so because the instructions were in the nature of privileged communications. In answer to that the pleader on the other side wrote a letter saying that in consequence of this refusal there remained no other alternative for him except to take such legal steps as his client might be advised. Nothing however was done and no complaint was made at that time at all. Subsequently on 7th April 1931 there was a further commission during which the evidence was taken of defendant 1 in course of her cross-examination it was elicited that the instructions for this particular question in the previous December had been given by herself or by her tadbirkar. Even then nothing was done by way of complaint until 21st May 1931 when the present complaint was made before the Magistrate, directed not against the client but against the pleader. It has been conceded by Mr. Roy that if as a matter of fact the pleader was acting under instructions in putting the question he would be protected from a charge under Section 500. It is quite clear from all the cases both in this and other Courts that the presumption in the case of pleaders asking questions in cross-examination is that such questions are put in good faith for the protection of his client's interests within the exception to Section 499; and further than that there is a definite finding of the Magistrate in so far as he says that he supports the report of the President of the Bar Association, that the complainant admitted that the accused had no malice or grudge against him or his family. The presumption is not rebutted or impugned by the letters that had passed at the end of December.
3. The letters do not say that he did not put the question under instructions but merely say that he was not prepared to divulge the source of his instructions; and what happened in the following April after the cross-examination of defendant 1 only lends further strength to the fact that question was asked on instructions. It is difficult, in these circumstances, to understand why the pleader should be brought to Court at all on this charge once the source of the instructions had been divulged, and yet it was not before five weeks had passed or later that the complaint was made. It appears to me that there is no real foundation for the order of the learned Judge and that the fact is that there was no malice or grudge or want of good faith shown in this case at all. The presumption that the question was put upon proper instructions far from being rebutted has been corroborated. If there was any want of good faith arising in this case it is rather to be attributed to the other side implicating the pleader in such circumstances as these. The client was the source of his instructions as regards the objectionable question. It need only further be said that it does in my opinion appear that the question is one which was not irrelevant to the issues in the case and cannot be held to be objectionable on that ground. The question was one of adoption and the answer to the question, if in the affirmative, would have gone to support the probabilities of the case which was being made by defendant 1. In my opinion this Rule must be made absolute. The order of the Sessions Judge is set aside and that of the Magistrate restored. The accused will be discharged from his bail bonds.
M.C. Ghose, J.
4. I agree.