1. The petitioner in this case Miss Rebecca Mondal has been convicted under Section 500, Penal Code and sentenced to pay a fine of Rs. 51 in default to suffer simple imprisonment for 15 days. The charge was to the effect:
That you, on or about 21-8-1943 at Serampore defamed Birajini Lai by publishing the following imputation concerning the latter to your pleader Babu Ram Chandra Mukherjee who put it in Court of Second Officer Mr. Choudhury to the complainant Birajini intending to harm or knowing or having reason to believe that, such imputation would harm the reputation of the complainant. The imputation was : That Prosad Chatterjee came to the house of complainant and behaved riotously in the house to the annoyance of Bebecca Mondal, and thereby committed an offence punishable under Section 500, Penal Code, and within my cognizance.
The complainant in the case was Mrs. Birajini Lai. There had been previous cases between these two ladies in which Mrs. Birajini had been unsuccessful In her complaint in the present ease Mrs. Birajini referring to a previous case stated that she had been cross-examined by the pleader for the accused (Rebecca Mondal) to the effect 'that one Prosad Chatterjee came to my house a ad behaved riotously to which the accused having taken objection and had instituted a false case.' The evidence in the present case given by the pleader Earn Chandra Mukherjee P.W. 2 who represented Miss Rebecca Mondal in the previous case, and by Mrs. Lal herself was to the effect that the suggestion in cross-examination was that Prosad Chatterjee had behaved riotously in the complainant's house to which the accused (Miss Mondal) took objection and since then there had been enmity between the parties. The record of the cross-examination of Mrs. Lai in the previous case (Ex. 1 in the present case) shows that in addition to the suggestion that Prosad Chatterjee came and behaved riotously, that the accused took objection and that since then there had been enmity due to that between the parties there was a final suggestion to Mrs. Lal that having lost a previous case she had lodged falsely the case in which she was being cross-examined.
2. There has been we think some considerable confusion of ideas by the lower Courts in dealing with this matter. In the first place, the charge itself is not clear as to where and when publication of the alleged defamation was made. In our opinion there was clear publication in Court by the pleader. Whether there was also publication by Miss Mondal to her pleader or not depends on the evidence of the pleader and the circumstances. The charge as framed refers to both occasions. It would have helped to clear ideas considerably if the Courts had made up their minds as to which publication was to be made the subject-matter of the charge. One point dealt with by the Courts is as to protection given by Section 126, Evidence Act. If we are dealing with the publication in Court, no possible question under Section 126, Evidence Act could arise. The publication was made by the lawyer in the presence of his client for all the world to hear. If such a case as the present is to succeed at all we imagine that it would always be better to proceed on the publication made in Court. In passing we may point out that if the publication is by the lawyer the client cannot be charged directly with the offence of defamation because the client at most is an abettor. It may happen in a particular case that the lawyer has a good defence whereas the client might be still liable for abetment. (Vide Expln. 3, Section 108, Penal Code.)
3. Another point on which the ideas of the Courts below were not clear was as to the necessity here for finding whether the imputation regarding the alleged incident with Mr. Prosad Chatterjee was true or not. The accused called some witnesses in defence to establish that the incident took place or may have taken place. The trial Court discussed their evidence and evidently was not impressed by it, but it cannot be said that the Court came to any clear finding on the point. The one point on which both Courts are clear is that, true or false, the suggestion that there had been such an incident was irrelevant. In view of the fact that it was the complainant's own case in her complaint and that as we have pointed out above the suggestion was made in cross-examination that the present case was a false case brought out of enmity arising out of this alleged incident, we cannot see how, assuming that the incident took place, it can be said that it was irrelevant to put the matter to the complainant. The findings, therefore, of the lower Courts are in any view of the case in our opinion not sufficient to justify a conviction.
4. Before leaving the matter we make a few observations on some of the points discussed before us. The relevant sections allowing imputations to be made to witnesses in cross-examination and controlling the exercise of that right are 146 to 153, Evidence Act. It is quite clear that questions may be asked for which there are only reasonable grounds for thinking that imputations contained in them are well founded and that it is by no means necessary before the question is asked that the person asking it should be in a position to establish the truth of the imputations beyond all doubt, There are provisions giving the Court power to control the asking of questions and in Section 150 if an improper question is asked by a lawyer the Court may move the High Court to deal with it. There is so to speak no cross reference between the provisions in the Evidence Act giving the right to make imputations to witnesses on the one hand and Section 499, Penal Code, making provisions for punishing people who make imputations against others on the other. All that is necessary for us here is to say that we find it difficult to believe that an thing which will be permissible to be put under the Evidence Act can be punishable under the Penal Code. It is not necessary for us to decide here whether a deliberately false imputation made at the instance of a party, false to his knowledge, though made for his own protection, would be punishable or not.
5. We are quite satisfied that the findings in the present case are not sufficient to justify any conviction of the present petitioner and we do not consider it necessary for the matter to go any further.
6. The result is that we set aside the conviction of the petitioner and direct the fine if paid be refunded.