Sec 500 IPC: Advocate acting under instructions of client cannot be prosecuted for defamation [Read the Order]

June 06, 2019:

The Chattisgarh High Court quashed criminal proceedings under Section 500 IPC against Advocate who acted under the instructions of his client and proceeded professionally after factual considerations and observations of various judgements.

The petitioner (Advocate by profession) has been accused of defaming Pratibha Pandey who was the defendant in the said suit the petitioner filed on behalf of his client. His client Madhuri Pandey, after the death of her father Ghanshyam Pandey had claimed for his property.

The said defendant in an application filed has been mentioned as the concubine (keeper) of his client's father to which the defendant objected and claimed and said that she was married to him after the death of his first wife.

She filed a complaint before the Police which was not taken cognizance of by the police authorities.

She then filed a complaint in the Court for taking action against the State and other persons in terms of Lalita Kumari v. Government of Uttar Pradesh and others in which this Court directed the concerned police to proceed in accordance with law after registering the first information report (FIR). Thereafter, the police investigated and registered the offence under Sections 506 & 509 of the IPC and thereafter, charge-sheet was filed for offence under Sections 294, 500, 506 and 509 read with Section 34 of the IPC.

The petitioner on the other side takes exception to the initiation and continuance of his prosecution for the aforesaid offences principally, on the ground that he being an Advocate in performance of his professional duty has drafted the plaint bona fidely against respondent No.2 herein which was duly filed before the trial Court and in which she is contesting the suit and therefore the defamatory statement, if any, is covered by Ninth Exception to Section 499 of the IPC and therefore no action can be taken on the basis of his act in the professional capacity in a bona fide manner.

Even otherwise, taking the complaint as it is on its face value, no offences punishable under Sections 294, 500, 506 and 509 read with Section 34 of the IPC are made out, therefore, Criminal Case against the petitioner pending in the Court of Chief Judicial Magistrate, Jagdalpur deserves to be quashed and the impugned order refusing to discharge him on the ground of limitation deserves to be set-aside.

The respondents however claims that action taken by the police authorities is strictly in accordance with law.

Learned Counsel appearing for the petitioner, would submit that the petitioner has acted strictly in performance of his professional duty by drafting the plaint as per the instructions of his client which cannot be taken exception to, as the Advocate enjoys privilege while acting professionally for administration of the cause in which he is professionally engaged. He would further submit that by virtue of the provision contained in Section 196 of the CrPC, cognizance of offence under Section 500 of the IPC cannot be taken on the basis of police report as such, for offence under Section 500 of the IPC, cognizance on police report is barred.

Lastly, he would also submit that no such offence under Sections 294, 506 and 509 of the IPC are made out against the petitioner and the learned trial Magistrate is absolutely unjustified in rejecting his application for discharge on the ground of limitation.

Learned Deputy Advocate General appearing on behalf of the State/respondent No.1, would submit that the report filed by respondent No.2 herein was considered and the offences charged were found against the petitioner and as per the material available on record, the petitioner has been charge- sheeted which is strictly in accordance with law and thus, initiation and continuance of prosecution of the petitioner cannot be held to be unsustainable under the law and the instant petition deserves to be dismissed.

Learned Counsel appearing for respondent No.2, would submit that the petitioner knowing fully well that respondent No.2 is the legally wedded wife of Shri Ghanshyam Pandey, who is no more, in order to defame her, drafted the plaint in the manner which is clearly defamatory to respondent No.2, as the duty of the Advocate prescribed in Chapter II, Part VI, of the Bar Council of India Rules – Duty to Opponent has been prescribed which the petitioner has not followed, therefore, taking cognizance of the offence under Section 500 of the IPC on police report is strictly justified. He would further submit that the petitioner has not only made defamatory statement in the plaint while drafting the plaint, but also thereafter, abused and threatened respondent No.2 which constitutes the offence under Sections 294, 506 and 509 of the IPC. Therefore, the petitioner has rightly been charge-sheeted for the aforesaid offences which is in accordance with law and no interference is called for in the impugned order in exercise of inherent jurisdiction under Section 482 of the CrPC.

Ninth Exception to Section 499 of the IPC, which is relevant to the present case, is quoted herein-below: -

“Ninth Exception.—Imputation made in good faith by person for protection of his or other's interests.—It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.”

In order to attract the Ninth Exception to Section 499 of the IPC, the imputation must be shown to have been made (i) in good faith; and (ii) for the protection of person making it or for any other person or for public good.

In a Supreme Court Judgement held in Chaman Lal v. State of Punjab, it stated thatin order to establish good faith and bona fide, it has to been seen first the circumstances under which the letter was written or words were uttered; secondly, whether there was any malice; thirdly, whether the accused made any enquiry before he made the allegations; fourthly, whether there are reasons to accept the version that he acted with care and caution and finally, whether there is preponderance of probability that the accused acted in good faith.

The Court also examined the various other High Courts and Supreme Court judgement and concluded an advocate, who acted professionally as per instructions of his/her client, cannot be made criminally liable for the offence of defamation under Section 500 of the IPC unless contrary is alleged and established.

What about the Ninth Exception to Section 499 of the IPC?

The High Court has observed that the petitioner has mentioned the respondent as concubine on the instructions of his client who was claiming the her father's property stating that the respondent cannot have a share as she is not wife to his father.

The petitioner in his capacity as advocate in discharge of professional duty on the instructions of his client incorporated the said averment in para 7 of the plaint filed in the civil suit. His acts are bona fide and he cannot be fastened with criminal liability. As such, imputation was made in good faith and on the basis of instructions of his client in order to protect her right to property which she is claiming, as right to property is a constitutional right under Article 330A of the Constitution of India and therefore does not constitute the offence of defamation under Section 499 of the IPC punishable under Section 500 of the IPC and falls within the Ninth Exception to Section 499 of the IPC.

As such, an Advocate who has acted professionally and drafted plaint making averment as per the instructions of his client, cannot be held liable for the offence of defamation under Section 500 of the IPC.

The other reason for quashing of the prosecution as stated by the Court was that Section 199 of the CrPC provides that no court shall take cognizance of an offence punishable under Chapter XXI of the IPC except upon a complaint made by some person aggrieved by the offence. Offence of defamation under Section 499 of the IPC punishable under Section 500 of the IPC is one of the offences punishable under Chapter XXI of the IPC. But, in the instant case, the offence has been registered on the basis of police report. The word “complaint” has been defined in Section 2(d) of the CrPC and “police report” is defined in Section 2(r) and according to the said definition, “police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173. The law in this regard is also well settled.

The petitioner has been charged for offence under Section 509 of the IPC only on the ground by aid of Section 34 of the IPC, as from the allegation itself it is evident that the petitioner was not in the company of co-accused when the alleged words were spoken by the other co-accused to show that he ever shared common intention.

With the facts it has been clarified that FIR has been lodged 3-4 years later of the incident which clearly goes to show that there was no intention of the petitioner to cause harm, as in such a case, she would have rushed to the police authority well in time. As such, even it cannot be held that the petitioner has abused and insulted respondent No.2 in terms of Section 506 of the IPC.

The Order has been given by Hon’ble Shri Justice Sanjay K. Agrawal on 10-05-2019.

Read the Order here:

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