(1.) THIS Rule is for quashing an order dated the 7th September, 1968, passed by Sri P. C, Chakraborty, Presidency Magistrate, 4th Court, Calcutta, framing two charges against the two accused petitioners under Section 500 I. P. C. in Case No. C-230 of 1968.
(2.) THE facts leading on to the Rule can be put in a short compass. The accused-petitioner No. 1 is an Advocate practising at the Judge's Court, Alipore and the accused-petitioner No. 2 is a son of the late Dulal Chandra Sadhukhan. The complainant who is an Advocate now employed as an Income Tax Officer, filed a petition of complaint on 4. 4. 68 before the learned Additional Chief Presidency Magistrate, Calcutta against the two accused-petitioners as also one Jagabandhu Sadhukhan under Section 500 I. P. C. stating inter alia that he was born of the union of the late Dulal Chandra Sadhukhan and Sm. Durga Rani Sadhukhan, who were lawfully married to each other and that the accused Nos. 2 and 3 are his step-brothers, being the sons of the said late Dulal Chandra Sadhukhan by his first wife, Mahamaya Dassi, since deceased; that the said Mahamaya Dassi died insane; that the father of the Complainant died on the 14th February, 1968, bequeathing considerable properties to him by a will, to the exclusion of his step-brothers; that the accused No. 1, P. C. Gupta, is very much known to the complainant's family and the co accused, having opportunity to know their status; that the accused No. 1 had prepared, as an Advocate, the General Power of Attorney in favour of the complainant's mother, Sm. Durgarani Dassi and had it registered on 12. 11. 62; that there are also other documents proving his knowledge of the said status; that the accused No. 1 sent a letter dated 16. 3. 68 to the Art Union Printing Works (P) Ltd. of 165, Sri Arabinda Sarani, Calcutta, containing defamatory statements, really imputing that the complainant is not the son of lawfully wedded parents; that the publication of the said communication harmed the complainant's reputation; and that the accused accordingly committed the offence of defamation. The learned Additional Chief Presidency Magistrate, Calcutta, examined the complainant on solemn affirmation and by his order dated the 4th April, 1968, sent the matter for a judicial enquiry by Sri S. R. Bhattacharya, Presidency Magistrate, 5th Court, Calcutta. The learned enquiring magistrate examined several witnesses, considered the offending letter and after hearing the learned Advocates appearing on behalf of the complainant, submitted a report on 24. 4. 68, holding that there was a prima facie case against the two accused under Section 500 I. P. C. and 500/109 I. P. C. respectively. The learned Additional Chief Presidency Magistrate, Calcutta, thereafter, by his order dated 3. 5. 68 summoned both the accused under Section 500 I. P. C. and transferred the case to the file of Sri P. C. Chakraborty, Presidency Magistrate, 4th Court, Calcutta, for disposal. 4 witnesses were examined by the prosecution before the learned trying magistrate and several exhibits were proved and ultimately by his order dated the 7th September, 1968 the learned Presidency Magistrate framed charges under Section 500 I. P. C. against the two accused: The said order has been impugned and forms the subject-matter of the present Rule.
(3.) MR. Ajit Kumar Dutt, Advocate (with Mr. Subhas Chandra Bhattacharya, Advocate) appearing on behalf of the two accused-petitioners made a twofold submission, besides raising a third one relating to the accused-petitioner No. 1, P. C. Gupta alias Probhas Chandra Gupta. Mr. Dutt contended in the first place that the publication complained of does not come within, the ambit of defamation as defined in Section 499 of the Indian Penal Code read with explanation 4, inasmuch as it does not amount to an imputation against the character of any person but is only made in the context of the law of inheritance, for safeguarding the rights of a party affected. The second contention of Mr. Dutt is that the accused are protected under the 9th exception to Section 499 of the Indian Penal Code because the statements were made in good faith by a person for the protection of his or others' interests. In this context Mr. Dutt pinpointed the pendency of the probate case. The third contention raised by Mr. Dutta relating to the accused-petitioner No. 1, who is a practising Advocate at the Judge's Court, Alipore, is one of law and of some importance. The pith and substance thereof is that a lawyer, acting under the instructions of his client cannot commit the offence of defamation, unless and until there is an express malice on his part. In this context Mr. Dutt urged that even knowledge cannot be equated with express malice and pinpointed the fact that in the letter (Ext. 5|1) dated the 16th March, 1968, it was clearly averred that the learned lawyer was acting under the instructions and authority given to him by his client, the accused opposite party No. 2, and as such the charge under Section 500 I. P. C. is not maintainable against him. Several cases were cited in support of this contention and the same would be considered in the proper context. Mr. Nalin Chandra Banerjee, Advocate (with Mr. Arun Kumar Mukherjee, Advocate) appearing on behalf of the complainant-opposite party No. 2, Chandra Sekhar Sadhukhan, opposed the Rule and at the outset made a broad submission that the prayer, for quashing the charge at this stage in clearly premature and that the complainant should be allowed to proceed with the case which should be determined on merits, in a full-fledged trial. As to the first two contentions raised by Mr. Dutt bearing on the definition of defamation under Section 499 I. P. C. read with explanation 4, as also the protection provided for under exception 9 to the said Section, Mr. Banerjee contended that the points, involved are ultimately one of fact and cannot be decided at this stage. According to Mr. Banerjee the test for consideration at this stage is whether a prima facie case has been made out against the accused on the evidence adduced which as yet remained unchallenged; and the question of the availability of the protection under exception 9 to Section 499 I. P. C. or of the existence of the ingredients of the offence of defamation under Section 499 read with explanation 4 must abide the cross-examination of the witnesses and the evidence of rebuttal, if any, adduced by the defence in course of the trial. As to the third specific submission raised by Mr. Dutt, in favour of the accused-petitioner No. 1, Mr. Banerjee contended that the averments made in paragraphs 6 and 7 of the petition of complaint as also the statements made in the evidence by p. w. 1 clearly establish knowledge on the part of the said learned lawyer as to the true relationship between the parties and the 'status' of the complainant opposite-party No. 2. Mr. Banerjee further submitted on the position in law that knowledge on the part of the offending person is tantamount to express malice and in any event, this point of law should also be decided either way in the light of the entire evidence available in course of the trial. Mr. Jitendra Kumar Bhattacharya, Advocate appearing on behalf of the State also opposed the Rule. Mr. Bhattacharya contended in the first place that the test to be applied now is whether the evidence so far adduced does make out a prima fade case against the accused-petitioners under Section 500 I. P. C. entitling the learned magistrate to frame charges thereunder. The evidence on record, according to Mr. Bhattacharya, does make out a prima facie case at this stage and as such the prayer for quashing is unwarranted and untenable. Mr. Bhattacharya next contended that the plea of good faith and of the essential ingredients constituting the offence charged, is premature at this stage.;