Defamatory cross-examination and client privilege: counsel's instructions do not create absolute immunity under defamation law.

Defamatory questions put by counsel during cross-examination are not absolutely immune from defamation law merely because they were asked in court or on a client's instructions; liability depends on whether the imputation satisfies the statutory requirements of relevance, protection of interest and good faith under the Ninth Exception to Section 499 of the Penal Code. Section 126 of the Evidence Act protects confidential client communications, but it does not bar counsel from stating that the questions were asked on instructions or from denying that they were self-generated. The document also notes that a discharge order based on an overbroad view of privilege and an assumption that instructions could not be proved would be legally unsound.

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Issues: (i) Whether defamatory questions put in cross-examination by counsel on behalf of an accused expose the accused to liability for defamation when the questions are shown to have been asked on instructions; (ii) whether counsel can be compelled to disclose client instructions in view of the privilege under the Evidence Act; and (iii) whether the discharge order rejecting the complaint was sustainable.

Issue (i): Whether defamatory questions put in cross-examination by counsel on behalf of an accused expose the accused to liability for defamation when the questions are shown to have been asked on instructions.

Analysis: The right of an accused to defend himself includes the right to cross-examine prosecution witnesses effectively, even on matters affecting credit, but that right is not absolute. A defamatory imputation made in the course of judicial proceedings is protected only if it falls within the Ninth Exception to Section 499 of the Penal Code, namely, that it is relevant, made for the protection of the maker's interest, and made in good faith. The Court held that the impugned questions were not invented by counsel on his own and were put on the client's instructions. In such a situation the publication is attributable to the client, but criminal liability still depends on whether the imputation satisfies the statutory requirements of good faith and protection of interest.

Conclusion: The accused-clients could not escape scrutiny merely because the questions were asked through counsel, and the revision court held that the questions were put on instructions; the complaint was not barred on that ground.

Issue (ii): Whether counsel can be compelled to disclose client instructions in view of the privilege under the Evidence Act.

Analysis: The privilege under Section 126 of the Evidence Act protects confidential communications made by the client to the legal adviser; it is the client's privilege, not the lawyer's. The Court distinguished between disclosure of confidential instructions, which is prohibited, and a lawyer stating in answer to a complaint that his act was done on instructions and within professional duty, which does not amount to disclosing the substance of confidential communications. The Court also held that in complaints against advocates for defamatory questions asked in court, good faith should ordinarily be presumed unless wantonness, private malice, or abuse of duty is shown.

Conclusion: Section 126 did not prevent the advocate from denying that he acted on his own volition or from asserting that the questions were asked on instructions; the evidence of instructions was not excluded on the ground taken by the subordinate court.

Issue (iii): Whether the discharge order rejecting the complaint was sustainable.

Analysis: The subordinate court had proceeded on an erroneous view both of fact and of law, including an overbroad reading of the privilege under Section 126 and an incorrect assumption that the accused's instructions could not be proved. The revisional court found the order of discharge perverse and unsound. However, having regard to the lapse of time, the vindication already achieved, and the lack of usefulness in continuing the proceedings, the Court declined to direct further enquiry.

Conclusion: The discharge order was unsustainable, but the revision was ultimately dismissed without ordering further proceedings.

Final Conclusion: The Court held that defamatory cross-examination questions asked by counsel on instructions do not enjoy an absolute immunity, that the client's privilege under the Evidence Act does not bar the limited assertion that counsel acted on instructions, and that the impugned discharge order was legally and factually flawed, though no further enquiry was ordered.

Ratio Decidendi: In judicial proceedings, defamatory questions put by counsel on instructions are governed by the statutory law of defamation and the qualified privilege of good faith and protection of interest, while Section 126 of the Evidence Act protects only confidential client communications and does not create an absolute immunity for counsel or client against liability for defamatory publications.

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