High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 2583 OF 2010Mahadeo Manohar ParkarVERSUSThe State Of Maharashtra And OrsMr. H. I. Pathan, Advocate for the applicant Mr. S. P. Sonpawale, APP for the respondent/StateMr. S. S. Kote h/f Mr. A. V. Hon, Advocate for respondent No.2CORAM: S. G. MEHARE, J.DATE: 19th AUGUST, 2024PER COURT :-1.Heard the learned counsel for the applicant, learnedAPP for the State and learned counsel for respondent No.2.2.It is an interesting case of defamation filed againstthe lawyer who was representing accused.3.The respondent No.2 was the witness in R.C.C. No.39/2005 for the complainant. The lawyer/petitioner for theaccused put some questions to him. However, he felt insulted ofthose questions. He considered it his defamation. He tried toconvince the petitioner that he should verify the facts first andthen put the question to him. It is alleged that when therespondent No.2 had objection on the questions neither the Court108.ca2583.10.odt1 of 7 nor the Public Prosecutor stopped the petitioner from asking suchquestions. The questions were relating to his past. He feltaggrieved of those questions and filed a complaint under Section500 r/w 34 of the Indian Penal Code.4.The learned Judicial Magistrate First Class byimpugned order dated 10/09/2009 in Summary Case No.447/2009 passed an order of issue process against the applicantunder Section 500 r/w 34 of IPC.5.The learned counsel for the petitioner submits thatthe accused had engaged a legal practitioner. The accused hadinstructed him the facts. Whatever questions he put to thewitness were on the instructions of his client. He was notpersonally liable for the effect of such question. The oppositeparty has a right to cross-examine the witness. As far as thequestion on the character of the witness is concerned, section (3)of section 146 of the Indian Evidence Act provides that it is lawfulto shake the credit of the witness by injuring his characteralthough the answer to such questions might tend directly orindirectly to criminate him or might expose or tend directly orindirectly to expose him to a penalty or forfeiture. The law gavethe rights the other side to shake the credit of the witnesses by108.ca2583.10.odt2 of 7 injuring his character. Therefore it cannot be said that theapplicant being the practicing lawyer has committed any offence.6.He further argued that learned Judicial MagistrateFirst Class mechanically issued the process without application ofmind. He did not examine the contents of the complaint carefullyand passed the illegal impugned order. He relied on the case ofRajendra Kumar Shahani Vs. State of Maharashtra, 2018(3),Mh.L.J. (Cri.)621. He prayed to allow the application.7.Learned counsel for respondent No.2 has vehementlyargued that though the applicant was brought to the notice thatthe questions are defamatory and without foundations, he wenton asking the questions. Not only this on the next day of cross-examination the news was flashed in the newspaper that fewdefamatory questions were put to respondent No.2 in Section146(3) of the Indian Evidence Act does not allow this. Though theinstructions were given to the lawyer by the litigant, he being thelegal practitioner was bound to examine the effects of suchquestions. Since the law permits that does not give theunfettered powers to the legal practitioner to put any questionwithout foundation. Therefore, the applicant though practicing lawis equally responsible for the acts. There was no need to publish a108.ca2583.10.odt3 of 7 news in the news paper under the head of defamatory questions.Considering the role attributed to the applicant, he did notdischarge his legal duties to maintain the decorum of the Court oflaw and he didn't respect his profession. Therefore, prima faciecase was made out and the learned Judicial Magistrateconsidering the deliberate acts against, by the applicant correctlyissued the process. What was the intention the applicant inputting such defamatory question would be proved on merit. Thecourt exercised the power within the the provisions of law. Thecase of Rajendra Kumar Shahani (supra) does not apply to caseat hand. Hence, petition may be dismissed.8.The Bombay High Court in the case of RajendraKumar Shahani (supra) had an occasion to deal with identicalissue. The complaint was filed against the legal practitioneralleging that he had committed offence under Section 500 ofIndian Penal Code. The application was filed for revocationprobate granted to the complainant on the basis of falsedefamatory statement against the complainant. Various groundswere raised for revocation of probate certificate. However,defamation case was filed. Crystallizing the law on the role of theAdvocate for parties, the Court observed that the legal108.ca2583.10.odt4 of 7 practitioner cannot travel beyond the scope of advocacy. He hadprovided the legal assistant as the professional to the applicanttherein. It would be an abuse of process of law to prosecute himfor offence of defamation. By any stretch of imagination it can’tbe said that counsel in any manner had made averments.Advocate or Solicitor in this regard the professional duties whilerepresenting his client in the Court and unless he crossedboundary of his professional duty he cannot be attributed to anymalafides of acting in connivance with with clients. There could beevidence of malice or malafide on fact of the counsel and noprima facie case is made out against him.9.The court also discussed the contents of Section 500r/w 34 of the IPC and evaluating the law ruled that it is evidentthat respondent No.2 ought not to have prosecuted for theoffence of defamation. He did not cross the boundary line of hisprofessional duties. The application was filed on the basis of theinstructions which is apparent on the face of record. Merely,because, the complainant has averred in the complaint that therewas express defamation, it cannot be said that prima facie case ismade out against respondent No.2. Time and again it is emphasisthat, the Trial Court would be well adviced to be cautious while108.ca2583.10.odt5 of 7
Legal Reasoning
entertaining complaints against legal practitioners. It is onlywhere privileges have been abused they shall prosecuted.10.Before inviting the person an accused the Court issuppose to apply his mind. He should be satisfied with thematerial placed before is that the case is made out against theproposed accused to be tried and there is likelihood of hisconviction or at least there is a material to open the trial. Theorder passing of issue process must reflect the application ofmind otherwise such orders are liable to vitiated. Though theCourt has recorded the finding that on perusal of the contentionand allegations in the matter it does not reflect that heconsidered the status of the applicant being a legal practitioner,pleading against the complainant. Prima facie there was nothingto believe that there was material to issue process against theapplicant.11.In view of the provisions of law, the role attributed tothe lawyer for and on behalf and on instructions of the litigant hecannot be said that deliberately put the questions affecting thecharacter of the witness. What the questions put to respondentNo.2 in cross-examinations were obviously on instructions of thecomplainant. Unless a specific facts are brought before the Court108.ca2583.10.odt6 of 7 that those questions were put with ulterior motive having concernwith lawyer, no orders of issuing process should be passedagainst legal practitioner representing his client. Law laid in thecase of Rajendra Kumar Shahani (supra) is squarely applicable tocase in hand. Hence, the application deserves to be allowed. Theimpugned order of the Judicial Magistrate First Class dated10/09/2009 passed in Summary Case No. 447/2009 standsquashed and set aside. The complaint against the applicantstands dismissed. No order as to costs. (S. G. MEHARE, J.) ssp108.ca2583.10.odt7 of 7