W. Broome, J. - (1.) IN this criminal reference the Second Addl. District and Sessions fudge of Allahabad has recommended the quashing of an order passed on 9 -5 -1970 by a first class Magistrate of Allahabad, directing P.C. Chaturvedi, Advocate, to be summoned as an accused in a case Under Section 500 IPC filed against him by the opposite party Harbans Kaur.
(2.) HARBANS Kaur had filed a complaint against Dr. A.N. Mukerji Under Sections 117, 493 and 376 IPC and Dr. Mukerji was convicted by the Sessions Judge of Varanasi Under Section 417 IPC but was acquitted an the other charges. Thereupon Dr. Mukerji filed an appeal to the High Court against his conviction Under Section 417, while Harbans Kaur filed an appeal against the acquittal of Dr. Mukerji Under Sections 493 and 376 IPC. In both these appeals P.C. Chaturvedi appeared as counsel for Dr. Mukerji and argued on his behalf. The present case Under Section 500 IPC was filed on 1 -11 -1969, alleging that P.C. Chaturvedi while arguing the appeals in the High Court used abusive and filthy language in respect of Harbans Kaur, asserted that she had been the concubine of Dr. Mukerji, accused her of sexual incontinence and promiscuity and reinforced his arguments by making obscene gestures. The complainant's statement was recorded Under Section 200 Code of Criminal Procedure on 27 -11 -1969, but it appears that the learned Magistrate, who was dealing with the case, was not prepared to summon the accused on the basis of her uncorroborated testimony and accordingly a date was fixed for the production of witnesses Under Section 202 Code of Criminal Procedure. The only witness examined Under Section 202 was S.N. Mulla, Advocate, who had been engaged in the appeals before the High Court as special counsel for the State and it was his testimony that was relied upon by learned Magistrate when passing the impugned order on 9 -5 -1970, summoning the accused. A perusal of the statement of S.N. Mulla shows that he corroborated the complainant's allegations only with regard to the assertion that P.C. Chaturvedi had described her as a concubine and chhinala (adulteress). He denied that Chaturvedi has used filthy language and could not say what gestures he had made.
(3.) THE question to be decided therefore is whether the Magistrate was justified in summoning the accused to stand trial Under Section 500 IPC merely on being satisfied that a prima facie case had been made out that the accused had used the words "concubine" and "chhinala" in respect of the complainant. These words are no doubt per se defamatory, but we cannot lose sight of the fact that even on the complainant's own showing the accused had used these words as an Advocate, while arguing in Court on behalf of his client in the criminal appeals. The Ninth Exception to Section 499 IPC states that - It is not defamation to make an imputation on the character of another provided the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. A lawyer who makes imputations on the character of a person while arguing on behalf of his client is obviously entitled to the immunity afforded by this Exception, provided the imputations are made in good faith and are relevant to the case that is being argued. Learned Counsel appearing for Harbans Kaur, however, relies on the provisions of Section 105 of the Evidence Act, which lays down that the burden of proving the existence of circumstances bringing the case within any of the General Exceptions of the IPC or within any special exception or proviso contained in any part of the same Code or in any law defining the offence is upon the accused who wishes to take advantage of the said exception. He therefore contends that if P.C. Chaturvedi wishes to have the benefit of the Ninth Exception to Section 499 IPC the onus is on Chaturvedi to prove that the imputations made by him on the character of Harbans Kaur were made in good faith for the protection of the interests of his client Dr. Mukerji and this onus, he maintains, can only be discharged if Chaturvedi comes forward in court as an accused, pleads the exception and produces evidence to substantiate his plea.;