1953 (1) TMI 32 - HC - Indian Laws

Defamatory Questions Lead to Dismissal; Client Liable for Counsel's Statements, Legal Privilege Limited.

Ayeasha Bi Versus Peerkhan Sahib and Ors.

The HC found the Sub-Divisional Magistrate's order of discharge to be perverse and unsound, as the questions were deemed defamatory and put by the ... - Issues Involved:1. Legality of the Sub-Divisional Magistrate's order of discharge.2. Defamatory nature of the questions asked by the defense counsel.3. Applicability of Section 126 of the Evidence Act.4. Responsibility of the advocate versus the client in defamatory statements.5. Legal privilege and good faith under Section 499, IPC.6. Remedies available to a defamed witness.Detailed Analysis:1. Legality of the Sub-Divisional Magistrate's Order of Discharge:The criminal revision case was filed against the order of discharge by the Sub-Divisional Magistrate, which was upheld by the District Magistrate. The Sub-Divisional Magistrate discharged the accused on the grounds that there was no evidence to show that the accused instructed their counsel to put the defamatory questions. The High Court found this finding of fact to be 'grossly unfair' and held that the questions were indeed put by the advocate on instructions from the accused. The presumption should be that the questions were put on instructions unless proven otherwise.2. Defamatory Nature of the Questions Asked by the Defense Counsel:The questions asked by the defense counsel were 'per se defamatory' as they imputed criminal and illicit sexual intimacy to the complainant. The complainant proved her lawful marriage and chaste life through multiple witnesses. The High Court noted that the nature of the questions was such that no decent vakil would invent them without instructions, thus reinforcing the presumption that they were put on instructions.3. Applicability of Section 126 of the Evidence Act:Section 126 of the Evidence Act prohibits disclosure of professional communications between a lawyer and his client. The High Court clarified that this section is meant to protect the client's privilege and not the lawyer's. It does not preclude the lawyer from stating that the questions were put under instructions. The privilege is the client's, and the lawyer is bound to claim it unless waived by the client.4. Responsibility of the Advocate Versus the Client in Defamatory Statements:The High Court distinguished between the responsibilities of the advocate and the client. While the advocate is protected under Section 126, the client can still be held responsible for defamatory statements made through the advocate. The court noted that the advocate should not bear the responsibility for asking the question if it was under instructions, and the client cannot escape liability by claiming the statements were made through the advocate.5. Legal Privilege and Good Faith Under Section 499, IPC:The Ninth Exception to Section 499, IPC, provides protection for defamatory statements made in good faith for the protection of the person making it. The High Court emphasized that this privilege is qualified and not absolute. The accused must prove that the imputation was made relevantly, for the protection of his interest, and in good faith. The court noted that good faith involves honesty of purpose and reasonable grounds for believing the imputations to be true.6. Remedies Available to a Defamed Witness:The High Court outlined the remedies available to a defamed witness: (a) protection by court, (b) setting the criminal law in motion, or (c) filing a suit for damages. The court has extensive powers to protect witnesses from improper questions under Sections 146 to 153 of the Evidence Act. However, the court noted that these powers are often exercised timidly, leading to the need for witnesses to rely on their own remedies.Conclusion:The High Court found the order of discharge to be perverse on facts and unsound in law but chose not to interfere further due to the passage of time and the vindication of the complainant's character. The revision case was dismissed with observations that further proceedings were unnecessary.