- (1.) The facts leading to the issuance of the present rule may be briefly stated as follows: The complainant opposite party filed a complaint against Sm. Maneka Gandhi and Sri Kushwant Singh, Assistant Editor and Consulting Editor respectively of an English monthly 'Surya' alleging commission of an offence under Section 292/ 114 of the Indian Penal Code. The learned Judicial Magistrate, Alipore, took cognizance of the offence and issued process against the aforesaid two accused persons fixing August 18, 1977, for their appearance. On the date fixed the two accused persons appeared before the learned Magistrate. The Petitioner, who is a senior Advocate of this Court, was engaged to appear on their behalf along with his juniors and to apply for bail and personal exemption under Section 205 of the Code of Criminal Procedure, of the accused persons. The lawyer of the complainant opposite party during the hearing of the aforesaid case filed an application objecting to the prayers of the said accused persons and insisted on imposing conditions on the said accused persons so that they might not leave India without prior permission of the Court. The Petitioner, while moving the application for bail and for personal exemption of the accused persons, made a statement and it is alleged that in course of his statement he characterised the prosecution as 'blackmail' and the complainant opposite party as a 'blackmailer'. On the same date the complainant opposite party filed an application before the learned Magistrate drawing his attention to the above statement of the Petitioner. The learned Magistrate recorded an endorsement on the said application to the effect 'received long after the case was called'. Thereafter, M/s. D.D. Agarwalla and Company, Advocates, sent a letter dated September 26, 1977, calling upon the Petitioner to give a reply to the letter wherein they wanted to know whether the statement made by the Petitioner was made on the instructions of his clients. In it they also threatened legal consequences in the event of his failure to reply to the letter within seven days from the receipt of the same. The Petitioner replied to that letter through his Solicitors and Advocates, M/s Mukherji and Biswas, by a letter dated October 3, 1977. In this letter the allegations contained in the letter of M/s D.D. Agarwalla and Company were denied and it was stated that the allegations were distorted versions of what had actually taken place at the time of hearing of the case and it was further denied that the Petitioner made any defamatory imputation against the complainant opposite party. It was also pointed out in the letter that the threats communicated though the letter of D.D. Agarwalla and Company constituted a deliberate attempt to interfere with the administration of justice. Thereafter, on or about August 18, 1977, the complainant opposite party filed an application in the Court of the Sub-divisional Judicial Magistrate, Alipore, against the Petitioner and the said Sm. Maneka Gandhi and Sri Kushwant Singh alleging commission of an offence under Sections 500/ 114 of the Indian Penal Code. In the petition of complaint it was alleged that on the instructions of Sm. Maneka Gandhi and Sri Kushwant Singh the Petitioner had stated that the complainant filed the case only to blackmail the accused persons and as such, the said case was a blackmailing case and the complainant was a blackmailer. The learned Magistrate took cognizance of the offence and transferred the case to another Magistrate who issued process under Sections 500/ 114 of the Indian Penal Code against the Petitioner and the said Maneka Gandhi and Kushwant Singh directing them to appear before the Court on December 28, 1977. On receipt of the summons the Petitioner appeared before the Court of the learned Magistrate through his lawyer and filed an application for his personal exemption under Section 205 of the Code of Criminal Procedure. Thereafter, the Petitioner moved this Court and obtained the present rule. In this application the Petitioner is asking for quashing of the proceeding under Sections 500/ 114 of the Indian Penal Code.
(2.) The question before us is whether the learned Magistrate was justified in issuing process under Sections 500/ 114 of the Indian Penal Code.
(3.) We have already seen that it has been alleged in the petition of complaint that the Petitioner under instructions of Sm. Maneka Gandhi and Kushwant Singh stated that the case under Sections 292/ 114, Indian Penal Code, was a blackmailing case and the complainant was a blackmailer. It may be that the imputation that the case was a blackmailing case and the complainant was a blackmailer may amount to a defamatory statement coming within the mischief of Section 500, Indian Penal Code. At this state of the proceeding we cannot take into consideration whether in fact the Petitioner made such imputation. The complainant opposite party made the aforesaid allegation and led evidence in support of it. We are therefore, required to see whether the Petitioner as an Advocate of the accused persons Sm. Maneka Gandhi and Kushwant Singh could be said prima facie to have committed an offence under Sections 500/ 114, Indian Penal Code, in making the alleged imputation in the course of his argument and that also as stated in the complaint, was under the instructions of his clients, namely Sm. Maneka Gandhi and Kushwant Singh.;