Ramaswami, J. -
(1.) This criminal revision case has been filed against the order of discharge made by the learned Sub-Divisional Magistrate of Cheyyar In C. C. No. 493 of 1951 and which was refused to be interfered with by the District Magistrate of Vellore in C. R. P. No. 5 of 1952.
(2.) The facts are: C. C. No. 1647 of 1951 was filed before the Sub-Magistrate, Polur, for offences under Sections 324 and 323, Penal Code, by Ayesha Bee, wife of Kasim Saheb, Chinnapushpagirt village, Polur Taluk, against Peerkhan sahib, Pathima Bee and Chote Bee, all residing in Chinnapushpagiri village, Polur Taluk. It is unnecessary for us to go into the details of that case. So far as the present case is concerned, what happened was this. On this Ayesha Bee, the complainant, being examined as a prosecution witness, the accused who were defended by Mr. V. M. Sundaresa Aiyar, Advocate, Vellore put questions to this witness containing 'per se' defamatory imputations to the following effects viz., (a) that the complainant was in criminal and illicit sexual intimacy with one Azia Khan husband of accused "2 in that case;. (b) that the complainant was taken to Vellore and kept there by the said Aziz Khan in pursuance of such intimacy; (c) that the complainant bore two children to the said Aziz Khan and (d) that the complainant was living in illicit sexual intimacy with the said Aziz Khan for the past ten years and upto the date of the abovesaid questioning.
(3.) On the other Hand, it is the case for the complainant that she is the lawfully wedded wife of Kasim Saheb and has been living with her husband for the past 15 years and has borne him no less than four children alive and two dead and that she has been leading a chaste life and that the imputations were grossly defamatory. The complainant gave a lawyer's notice marked as Ex. P. 4 through her advocate Mr. Asker All sahib and to this Mr. Sundaresa' Aiyar has sent a reply notice which the Magistrate refused to allow to be exhibited as coming within the mischief of Section 126, Evidence Act. There is no dispute however that Mr. Sundaresa Aiyar put those questions on instructions from the accused and in fact this was made out in another way, viz., the testimony of me complainant. As P. W. 1, she deposed:
"Such questions were asked by counsel on the instructions of the accused. The allegations were unfounded. I was dishonoured in public Court. I questioned the accused. They said they would have such questions to be put to me. I sent a notice to the advocate Sundaresa Ayyar. He gave the reply notice." The married status and the purity of the married life of this Ayesha Bee unsullied by any extra-marital adventures was proved not only through P. W. 1 but also by the Khazi of Kizham-bur P. W. 3 and the husband of P. W. 1, viz., P. W. 5. The advocate for the accused was examined as P. W. 4 and his evidence proceeded to a certain extent viz., his admitting the receiving of the notice given through Mr. Asker Ali Sahib and his own reply notice. Then at that stage the sub-Divisional Magistrate has made a note: "Defence counsel objects to the filing. Objections upheld as the notice is in the nature of disclosing instructions by counsel which is debarred under Section 126, Evidence Act, and as it does not appear to me that it is saved by the provisos to the section in the circumstances of the case". The examination-in-chief was not proceeded with and the lawyer got out of the box with cross-examination marked 'nil'. In other words, the case had proceeded to the stage when a charge should have been framed and the learned Sub-Divisional Magistrate discharged the accused on the following grounds:
"These words would therefore be 'per se' defamatory. However it has to be observed, though the charge of defamation was based on the questions put by the counsel, there is nothing to show the precise nature and form of the questions, though, no doubt, we have the precise answers. Taking the evidence in the case, there is nothing to show that the accused instructed their counsel, P. W. 4, to put these questions to P. W. 1 during her cross-examination in C. C. No. 1643 of 1951 on the file of the stationary Sub-Magistrate, Polur. Where and when these instructions were given to the counsel and which of the accused gave the instructions are matters which have no place in evidence. Then again even if the accused had given the imputed instructions to put such questions to P. W. 1, the counsel P. W. 4 is debarred under Section 126, Evidence Act to disclose the instructions given to him as such. P. W. 4 could not say that these questions were put by him to P. W. 1 on instructions from the accused. The authority in --'Palaniappa Chettiar v. Emperor', 1935 Mad WN 460 (A) is to the point. Their Lordships observed that the accused cannot be found guilty of defamation committed through the mouth of the vakil. He should only be convicted by making the Imputation to the vakil, thus publishing it, but that as that fact cannot be proved by the vakil without the consent of the complainant (Section 126, Evidence Act) the chance of getting such a conviction would be rare. This decision has been referred to in -- 'K. Appayya v. Rama Subhayya', (B) and followed. Their Lordships stated that when a person acted as a lawyer to a party, he is debarred from disclosing the instructions received from his clients. P. W. 4 has not deposed that the accused gave instructions to put such questions and he is debarred from disclosing such instructions, if any." This order of the Magistrate resolves itself into two parts viz., one of fact and one of law. In so far as the finding of fact is concerned, the sub-Divisional Magistrate has undoubtedly distorted the plain facts and drawn a totally unjustified inference. On the other hand, there is every thing in this case to show that it was only on instructions that these questions were put by Mr. Sundaresa Ayyar to P. W. 1. In fact the presumption with which we have to start investigation is that these questions were put on instructions and that it is only when the contrary is proved we can come to the finding that these questions were put without instructions. ('V. Pike v. Ma Khin Thein') AIR 1940 Rang 77 (C) --'Md. Taqi v. M. A. Ghani', AIR 1945 Lah 97 (D); -- 'Rex v. Gendan Lal (Sapru J.)', AIR 1948 All 409 (E), relying on -- 'Satish Chandra V. Ram Dayal', AIR 1921 Cat 1 (SB) (P); -- 'In re Nagarji Trikamji', 19 Bom 340 (G); -- 'Emperor v. Ganga Prasad', 29 All 685 (H) and - 'Fakir Prasad v. Kripasindhu Pat', AIR 1927 Cal 303 (I)). The learned Sub-Divisional Magistrate has apparently not perceived the gross unfairness to the advocate when he writes the evidence in the case does not show that the accused instructed their counsel. Does it mean that the advocate invented the imputations himself and for no other purpose than to discredit the witness put these wholly false allegations? On the other hand, we have the evidence of P. W. 1 which stood unshaken in cross-examination that the accused told her that they would have such Questions put to her through their advocate in order to humiliate and intimidate her. Then the advocate himself in the box categorically admitted that the questions were put by him on instructions and his reply notice was shut out on grounds which will be shown to be erroneous. The nature of the questions is such that no decent vakil would invent them without instructions. That is why I have pointed out that the hastily arrived at finding of the Sub-Divisional Magistrate was grossly unfair to a respectable member of the bar viz., that without instructions he would go out of his way to impute unchastityt a continuous course of misconduct and a couple of bastard children to a young woman appearing before him with reference to a complaint in respect of offences under Sections 324 and 323, I. P. C. (hurt). Therefore, the finding of fact is wholly incorrect and I have not the slightest hesitation in holding that the questions were put by the advocate on behalf of the accused-clients on instructions.;