Judgement ORDER :- This criminal revision case has been filed against the order of discharge made by the learned Sub-Divisional Magistrate of Cheyyar in C.C. No. 493 of 1951 and which was refused to be interfered with by the District Magistrate of Vellore in C.R.P. No. 5 of 1952. 2. The facts are : C.C. No. 1647 of 1951 was filed before the Sub-Magistrate, Polur, for offences under Ss. 324 and 323, Penal Code, by Ayestia Bee, wife of Kasim Saheb, Chinnapushpagiri village, Polur Taluk, against Peerkhan Sahib, Fathima Bee and Chote Bee, all residing in Chinnapushpagiri village, Polur Taluk. It is unnecessary for us to go into the details of that case. So far as the present case is concerned, what happened was this. On this Ayesha Bee, the complainant, being examined as a prosecution witness, the accused who were defended by Mr. V.M. Sundaresa Aiyar, Advocate, Vellore put questions to this witness containing per se defamatory imputations to the following effects viz., (a) that the complainant WRP in criminal and illicit sexual intimacy with one Aziz Khan, husband of accused 2 in that case; (b) that the complainant was taken to Vellore and kept there by the said Aziz Khan in pursuance of such intimacy; (c) that the complainant bore two children to the said Aziz Khan; and (d) that the complainant was living in illicit sexual intimacy with the said Aziz Khan for the past ten years and upto the date of the above said questioning. 3. On the other hand, it is the case for the complainant that she is the lawfully wedded wife of Kasim Saheb and has been living with her husband for the past 15 years and has borne him no less than four children alive and two dead and that she has been leading a chaste life and that the imputations were grossly defamatory. The complainant gave a lawyers notice marked as Ex. P. 4 through her advocate Mr. Asker Ali Sahib and to this Mr. Sundaresa Aiyar has sent a reply notice which the Magistrate refused to allow to be exhibited as coming within the mischief of S. 126, Evidence Act. There is no dispute however that Mr. Sundaresa Aiyar put those questions on instructions from the accused and in fact this was made out in another way, viz., the testimony of the complainant. Sundaresa Aiyar has sent a reply notice which the Magistrate refused to allow to be exhibited as coming within the mischief of S. 126, Evidence Act. There is no dispute however that Mr. Sundaresa Aiyar put those questions on instructions from the accused and in fact this was made out in another way, viz., the testimony of the complainant. As P.W. 1, she deposed : "Such questions were asked by counsel on the instructions of the accused. The allegations were unfounded. I was dishonoured in public Court. I questioned the accused. They said they would have such questions to be put to me. I sent a notice to the advocate Sundaresa Ayyar. He gave the reply notice." The married status and the purity of the married life of this Ayesha Bee unsullied by any extra-marital adventures was proved not only through P.W. 1 but also by the Khazi of Kizhambur P.W. 3 and the husband of P.W. 1, viz., P.W. 5. The advocate for the accused was examined as P.W. 4 and his evidence proceeded to a certain extent viz., his admitting the receiving of the notice given through Mr. Asker Ali Sahib and his own reply notice. Then at that stage the Sub-Divisional Magistrate has made a note; "Defence counsel objects to the filing. Objections upheld as the notice is in the nature of disclosing instructions by counsel which is debarred under S. 126, Evidence Act, and as it does not appear to me that it is saved by the provisos to the section in the circumstances of the case". The examination-in-chief was not proceeded with and the lawyer got out of the box with cross-examination marked nil. In other words, the case had proceeded to the stage when a charge should have been framed and the learned Sub-Divisional Magistrate discharged the accused on the following grounds : "These words would therefore be per se defamatory. However it has to be observed, though the charge of defamation, was based on the questions put by the counsel, there is nothing to show the precise nature and form of the questions, though, no doubt, we have the precise answers. However it has to be observed, though the charge of defamation, was based on the questions put by the counsel, there is nothing to show the precise nature and form of the questions, though, no doubt, we have the precise answers. Taking the evidence in the case, there is nothing to show that the accused instructed their counsel, P.W. 4 to put these questions to P.W. 1 during her cross-examination in C.C. No. 1643 of 1951 on the file of the Stationary Sub-Magistrate, Polur. Where and when these instructions were given to the counsel and which of the accused gave the instructions are matters which have no place in evidence. Then again even if the accused had given the imputed instructions to put such questions to P.W. 1, the counsel P.W. 4 is debarred under S. 126, Evidence Act to disclose the instructions given to him as such. P.W. 4 could not say that these questions were put by him to P.W. 1 on instructions from the accused. The authority in - Palaniappa Chettiar v. Emperor, 1935 Mad WN 460 (A) is to the point. Their Lordships observed that the accused cannot be found guilty of defamation committed through the mouth of the vakil. He should only be convicted by making the imputation to the vakil, thus publishing it, but that as that fact cannot be proved by the vakil without the consent of the complainant (S. 126, Evidence Act) the chance of getting such a conviction would be rare. This decision has been referred to in - K. Appayya v. Rama Bubhayya, AIR 1950 Mad 537 (B) and followed. Their Lordships stated that when a person acted as a lawyer to a party, he is debarred from disclosing the instructions received from his clients. P.W. 4 has not deposed that the accused gave instructions to put such questions and he is debarred from disclosing such instructions, if any." This order of the Magistrate resolves itself into two parts viz., one of fact and one of law. In so far as the finding of fact is concerned, the Sub-Divisional Magistrate has undoubtedly distorted the plain facts and drawn a totally unjustified inference. On the other hand, there is every thing in this case to show that it was only on instructions that these questions were put by Mr. Sundaresa Ayyar to P.W. 1. In so far as the finding of fact is concerned, the Sub-Divisional Magistrate has undoubtedly distorted the plain facts and drawn a totally unjustified inference. On the other hand, there is every thing in this case to show that it was only on instructions that these questions were put by Mr. Sundaresa Ayyar to P.W. 1. In fact the presumption With which we have to start investigation is that these questions were put on instructions and that it is only when the contrary is proved we cant come to the finding that these questions were put without instructions. (V. Pike v. Ma Khin Thein, AIR 1940 Rang 77 (O); - Md. Taqi v. M.A. Ghani, AIR 1945 Lah 97 (D); - Rex v. Gendan Lal (Sapru, J.), AIR 1948 All 409 (E), relying on - Satish Chandra v. Ram Dayal, AIR 1921 Cal 1 (SB) (F); - In re Nagarji Trikamji, 19 Bom 340 (G); - Emperor v. Ganga Prasad, 29 All 685 (H) and - Fakir Prasad v. Kripasindhu Pal, AIR 1927 Cal 303 (I)). The learned Sub-Divisional Magistrate has apparently not perceived the gross unfairness to the advocate when he writes the evidence in the case does not show that the accused instructed their counsel. Does it mean that the advocate invented the imputations himself and for no other purpose than to discredit the witness put these wholly false allegations ? On the other hand, we have the evidence of P.W. 1 which stood unshaken in cross-examination that the accused told her that they would have such questions put to her through their advocate in order to humiliate and intimidate her. Then the advocate himself in the box categorically admitted that the questions were put by him on instructions and his reply notice was shut out on grounds which will be shown to be erroneous. The nature of the questions is such that no decent vakil would invent them without instructions. That is why I have pointed out that the hastily arrived at finding of the Sub-Divisional Magistrate was grossly unfair to a respectable member of the bar viz., that without instructions he would go out of his way to impute unchastity, a continuous course of misconduct and a couple of bastard children to a young woman appearing before him with reference to a complaint in respect of offences under Ss. 324 and 323, I.P.C. (hurt). 324 and 323, I.P.C. (hurt). Therefore, the finding of fact is wholly incorrect and I have not the slightest hesitations in holding that the questions were put by the advocate on behalf of the accused-clients on instructions. 4. Then, on the point of law we have to consider the two important points raised viz., the circumstances under which a lawyer and/or his accused-client would be liable to be proceeded against for defamation in respect of per se defamatory questions put in cross-examination of prosecution witnesses. 5. "The rule of law", as pointed out by Lord Sankey, is the condition of liberty. Amid the crosscurrents and shifting sands of public life, the law is like a great rock upon which a man may set his feet and be safe while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts at any rate he can get justice." For it is on the maintenance and enforcement of the Reign of Law that civilisation exists. The alternative to the Reign of Law is the life of primitive savagery. 6. This rule of law in so far as the administration of criminal justice is concerned is ensured by the fundamental concept viz., that (1) the accused who can be tried only in accordance with law and (2) who can be convicted only in accordance with law - Courts of justice are not Courts of morals - must be able to protect his own interests by all legitimate means against the accusations made against him. This can be done by the only weapon which he possesses viz., the right to cross-examine his accusers. This cross-examination will be worth nothing if questions cannot be asked to test the veracity of the witness to discover who he is and what is his position in life and shake his credit by injuring his character (S. 146, Evidence Act). But unfortunately most of the accused persons are either illiterate or people unskilled in unravelling the motives, physiological limitations of the powers of observation etc., the psychological imperfections and the faulty and incoherent deductions of the witnesses. But unfortunately most of the accused persons are either illiterate or people unskilled in unravelling the motives, physiological limitations of the powers of observation etc., the psychological imperfections and the faulty and incoherent deductions of the witnesses. In the few cases where tae accused is able to be his own lawyer and acts as one, he finds owing to several circumstances that he is illustrating once more the old English adage that "a man who is his own lawyer has got a fool for his client". In other words, a man unpractised in speech, unskilled in law should have the aid of one possessing skill and power of speech but professing no personal knowledge or belief of the matters in questions, and that he should be able by his counsel to say all that he could say himself given the necessary skill, is an elementary requisite for enforcing the Reign of Law. On this it follows that there should be absolute confidence between the client and his legal adviser and that this confidence should be protected. The foundation of this rule embodied in S. 126, (Evidence Act is not difficult to discover. - It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection. It is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of courts, and in those matters affecting rights and obligations, which form the subject-matter of all judicial proceedings. If the privilege did not exist at all every one would be thrown upon his own legal resources. Deprived of all professional assistance, a man would not venture to consult any skilled person, or would only dare to tell his counsel half his case. (Per Brougham L.C., in - Greenough v. Gaskell, (1883) 1 Myl and K 98 at p. 103 (J)). It is absolutely necessary that a man in order to prosecute his rights or to defend himself from. (Per Brougham L.C., in - Greenough v. Gaskell, (1883) 1 Myl and K 98 at p. 103 (J)). It is absolutely necessary that a man in order to prosecute his rights or to defend himself from. an improper claim to have recourse to the assistance of professional lawyers and it being so absolutely necessary it is equally necessary to use the vulgar phrase, that he should be able to make a, clean breast of it to the gentleman and whom he consults with a, view to the prosecution of his claim or the substantiating his defence that he should be able to place unrestricted and unbounded confidence in the professional agent and that the communications he so makes to him should he kept secret unless with his consent (for it is his privilege and not the privilege of the confidential agent) that he should be enabled properly to conduct his litigation. That is the meaning of the rule embodied in S. 120, Evidence Act (Per Jessel M.R. in - Anderson v. Bank, (1876) 2 Ch D 644 at p. 649 (K); per Brougham L.C. in - Bolton v. Corporation of Liverpool, (1831-33) 1 Myl and K 88 (L)). The rigid enforcement of this rule no doubt occasionally operates to the exclusion of truth. But as pointed by Knight Brace, L.J. in - Pearse v. Pearse, (1846) 1C LJ Ch 153 (M) : "Truth, like all other good things, may be loved unwisely may be pursued too keenly, - may cost too much. And surely the meanness and the mischief of prying into a mans confidential consultations with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, suspicion, and fear, into those communications which must take place, and which, unless in a condition of perfect security, must, take place uselessly or worse, are too great a price to pay for truth itself" (Taylor on Evidence Ss. 911 to 913; Best on Evidence, S. 581; Roscoe on Criminal Evidence 133 to 135; Stephans Digest Art. 115 and Art. 116; Phipsons Law of Evidence, p. 182 (Book 2); Wigmore on Evidence, S. 2292; and Sirkar on Evidence, page 1206 (Seventh Edition)). 7. Thus, we arrive at the position that an accused or a party to a proceeding to protect his own interest is able to test the evidence of a witness appearing against him by cross-examination as to credit etc. 7. Thus, we arrive at the position that an accused or a party to a proceeding to protect his own interest is able to test the evidence of a witness appearing against him by cross-examination as to credit etc. through an advocate and that the intercourse between him and that advocate is protected unless expressly waived by the client. 8. This position has not always been the case and it would be interesting at this stage to trace the history of advocacy in our country albeit briefly owing to the limitation of space. 9. The best exposition of advocacy in Hindu India is to be found in Radha Kumud Mookerjee Endowment Lectures, 1945, on the Hindu Judicial System, delivered by Sir S. Varadachariar, Kt., Judge, Federal Court, and published by the M.L.J. Office for the Lucknow University : "It is not possible to say anything definite as to the existence of a legal profession in Ancient India (See a discussion in - 19 M.L.J., pp. 153 et seq (Journal)). Mr. Jayaswal thinks that professional lawyers ought to have existed from the days of Manu or at least from the first Century, A.D. (M. and Y., pp. 288-292). I find it difficult to interpret the reference to Vipra in Manu 8, 169, as a reference to a Lawyer Brahmin. The commentaries on this verse lend no support to such a reading. The passages in Narada (122) and Katyayana (90 to 95) seem. rather to refer to Agents than to Advocates or pleaders as we know them, because the persons representing are declared to be Parbies to the litigation with the difference however that the success or defeat is that of the party represented". (cf. the Cognitores and the Procurators of the Roman Law Buckland, p. 404). such a declaration would be uncalled for if the passages were intended to refer to a professional class whose profession itself was to represent others. I may however add that Mr. Kane reads these passages of Katyayana as referring to recognised Agents and Pleaders. (See his Introduction to Katyayana, p. xv). The succeeding passages in Katyayana place the Niyukta in the same category as Servants, Agents, Disciples and Relatives (of the party). This seems to me to militate against that expression being read as referring to a professional class. Kane reads these passages of Katyayana as referring to recognised Agents and Pleaders. (See his Introduction to Katyayana, p. xv). The succeeding passages in Katyayana place the Niyukta in the same category as Servants, Agents, Disciples and Relatives (of the party). This seems to me to militate against that expression being read as referring to a professional class. The passage in the Sukraniti is perhaps more significant, because it fixes the remuneration payable to the representative and declares him liable to punishment for receiving anything more; but it is noteworthy that it provides for the appointment of a representative not only on the ground of the partys ignorance of Vyavahara but also on the ground of his being otherwise busy. (Atiya Karya Kulena). The Arthasastra makes no reference to a legal profession. Mr. Nilakanta Sastriar in his book on the Cholas (Vol. II, p. 260) states that there appears no trace of the employment of advocates in the days of Chola Administration. In the laws of the Ancient Persians (translated by Mr. Bulsara), it is stated that in ancient Babylonia the institution of lawyers did not exist, but that by the time of the book which Mr. Bulsara was translating i.e., about the 6th or 7th century A.D., lawyers were in existence. (See pp. 34 and 612). In the Athens of Pericles, there was no Bench of trained Judges or Ear of trained lawyers. A party was not allowed to have his case presented by an Advocate, but there was nothing to prevent his learning by heart and repeating a speech prepared for him by a professional speech-writer (Logographer). The aim of the speech was not so much to inform the Court about the relevant matters, as to excite the emotions of the large audience and make it give its verdict on the impulse of the moment. There were in Athens a large number of Logo-graphers who wrote out speeches for parties and many of them made large incomes but the procession was regarded with little respect by enlightened Athenians. (See Trial of Socrates by Coleman Phillipson). In Rome, there no doubt existed a class of persons (Jurisprudentes) who made law their specialty; but they were not professional lawyers in our sense. They received no remuneration for their services. They were public men who only devoted some of their time to law as part of their public career. (See Trial of Socrates by Coleman Phillipson). In Rome, there no doubt existed a class of persons (Jurisprudentes) who made law their specialty; but they were not professional lawyers in our sense. They received no remuneration for their services. They were public men who only devoted some of their time to law as part of their public career. Advocacy proper was not the business of the Jurisconsult but of the Orator (Jol. pp. 91 to 94). The notion of law does not include of necessity the existence of a distinct profession of lawyers whether as Judges or as Advocates. There cannot well be a science of law without such a profession but justice can be administered according to settled rules by persons taken from the general body of citizens. In England there was no definite legal profession till more than a century after the Norman Conquest. (P. and M. Intrc. p. xxvii)." 10. Similarly, regarding lawyers in Muslim India we have no detailed and reliable account and the utmost learning and sympathetic consideration of the Administration of Justice in Medieval India could evolve nothing more than the following sketch by Mr. M.E. Ahmad I.C.S. : "Their duties are mentioned in the two Muslim Indian Codes, Fiqh-c-Firoz Shahi and Fatawa-e-Alamgiri. They were known as Vakils, a term which still applies to them. Marvardi speaks of the profession and considers expert knowledge of the law necessary both for the practice of law and for the acting as Qazi (J.R.A.S. 1910, p. 764). Moreland thinks that the profession did not exist but contemporary authorities have referred to Vakils. Ibn Batuta who was himself a Judge in the time of Muhammad Tughlaq (1315-1351) speaks of them (p. 194, Travels-Lee). Badaoni refers to Rae Arzani, a Hindu Vakil of Khan Zaman (p. 97, Vol. II and p. 76, Vol. II). Sir Thomas Roe refers to his Solicitor who perused his plaint (Roes Embassy, Foster, p. 260). The petition of the East India Company was presented by lawyers on the original side of the Emperors Court. * * * * A high standard was expected of Vakils - "The practice of the Law" said Omar, the second Caliph of Islam, was to be in good faith and pursued in sincerity as calling. Vakils had a right of audience in Courts and were attached to the staff of every King and his sons. * * * * A high standard was expected of Vakils - "The practice of the Law" said Omar, the second Caliph of Islam, was to be in good faith and pursued in sincerity as calling. Vakils had a right of audience in Courts and were attached to the staff of every King and his sons. One Vakil was given the title of Vakalat Khan in the time of Bahadur Shah. (1707-1712) (vide Bahadur Shah Mamah MS. K.C.C.) for his successful advocacy. A client could withdraw the powers of his vakil. During the reigns of Shahajahan and Aurangazeb, lawyers were appointed to defend, civil suits against the State and to assist poor litigants with free legal advice. They were, as I have mentioned, in the previous chapter, known as Vakil-e-Sharai (Khan Khan 2, p. 249). The vakils had to file their powers of attorney (Vakalat Namah) in all cases (see Br. Mus. Or. 2011) and even today the form in which the power is filed in Court is more or less the same. Remuneration was paid by the State to the Vakil-e-sharai at the rate of Re. one a clay (Mirat Supp. p. 149) but it is not clear what fees were charged by other Vakils from their clients. The order of Aurangzab directing the State vakils to give free advice to paupers suggests that the practice of accepting Mahentanah was in vogue. No receipts of payments have come to my notice, and the decrees in Baqiat do not mention the fees of the Vakils. There were no Bar Associations as the medieval Government was not based on modern democratic ideas, and there was no demand for such public organisations. As recorded elsewhere, Vakils could be appointed basis in the districts where they were practising. A perusal of judgments in Baqiat shows that Qazi Quim Ali was a local lawyer and officiated as Qazi for some time (p. 22). After he left the Bench he again appeared as a lawyer in - Dunia Murai v. Mir Shahamat, (Ali Baqiat, p. 25) for the Defendant. It should, however, be borne in mind that the word vakil was also a general term applied in those days to Agents (I.O.L. MS. 370) Shahjahans diplomatic representative at the Court of Aurangzeb was referred to as Vakil-e- An Hazrat, Waqua at-e-Alamgir MS. 1640 (Br. Mus. f. 39). It should, however, be borne in mind that the word vakil was also a general term applied in those days to Agents (I.O.L. MS. 370) Shahjahans diplomatic representative at the Court of Aurangzeb was referred to as Vakil-e- An Hazrat, Waqua at-e-Alamgir MS. 1640 (Br. Mus. f. 39). At another place Sujan Rae in his Khulasat ut Tawarikh has used the word Vakil as Saltanat or Vakil-e-Mutalaq for the Prime Minister." 11. Similarly, regarding advocacy we have very little tangible information both in the Vijayanagar empire and in the Maratha administration probably due to its little scope in the authoritarian regime of the former and arbitral system in vogue in the latter. (See Saletore, Social and Political Life in Vijayanagar Empire; N. Venkatramanayyas Studies in the history of the Third dynasty of Vijanagar; Maha Lingams Administration and social life under Vijayanagar; C.K. Srinivasan, Maratha Rule in the Carnatic and other well known works on Maharatta administration by Grant Duff, Kincaid etc.). 12. Then coming to the British Times, the Madras Bar is the oldest in India. First the merchant came and built his factory in 1639. The soldier then came to guard and protect it. With him the Doctor came to attend to the sick and wounded and the Chaplain to remind them of their religion. But the lawyer came at a later stage and that too not from reputable or skilled sources owing to the fact that in the beginning there were grave doubts and uncertainties about the Companys right to maintain courts and administer justice over non-English inhabitants. In fact under the Charter of 1661 which gave the president and the Council of Fort St. George some kind of judicial authority over the English inhabitants, they constituted themselves a judicial tribunal to dispense justice. They had Consultation Days on which they attended to their administrative work and the Day of Administering Justice on which they attended to judicial work. They set apart two days in the week for the latter purpose and also kept a diary of their proceedings in English and Portugese. The first agent who appears to have had some taste for law was Sir William Laughome. They set apart two days in the week for the latter purpose and also kept a diary of their proceedings in English and Portugese. The first agent who appears to have had some taste for law was Sir William Laughome. When he was near his imbarquing (sic : embarking ?) the Minutes of Consultation dated 19-9-1677, take stock of all his law-books and it was then resolved that the Agent do make payment out of the Honourable Companys cash for the same £5-15-6 (Rs. 51-8-0) to him for that library of law-books judged most useful for this place. The list is interesting. This court constituted by the Agent and Council was presided by Judges who had the advantage of local knowledge and had commonsense but painfully lacking in legal knowledge of which they were fully aware. Therefore, they started encouraging legal practitioners and in Consultation dated 18-3-1678 a regular table of fees was drawn up. It is interesting to remember that the Attorneys fees for the plaintiff for drawing declaration and pleading was 14 fanams and the like fees for the defendant was 21 fanams. This is the first reference to the Bar in the Companys records of Fort St. George and some more years passed before the practitioners appeared to act and plead. By charter dated 9-8-1683 the Governor and Council were empowered to establish Admiralty Courts to try cases against interlopers, forfeiture of ships and the like. This Admiralty Court had a chequered career and gave no scope for legal talents. In the meanwhile the responsibilities of the company became ever increasingly larger and larger and offences other than piracy had to be taken cognizance of. In 1726 came the Letters Patent establishing regular civil and criminal courts of Madras. The Civil Court was called the Mayors court composed of a Mayor and nine Aldermen. From their decision, appeal lay to the Governor-in-Council or where the subject of dispute exceeded 1000 pagodas in value to the King-in-Council. A criminal court was constituted at the same time by appointing the Governor and five senior members of Council as Justices of the Peace and directing them to hold quarter sessions for trial of crimes, treason excepted, as much as possible after the manner in which crimes were heard and punished in England. A criminal court was constituted at the same time by appointing the Governor and five senior members of Council as Justices of the Peace and directing them to hold quarter sessions for trial of crimes, treason excepted, as much as possible after the manner in which crimes were heard and punished in England. Therefore, the pattern of Grana Juries and Petty Juries and the application of the ferocious Penal Code of England mitigated by local customs and sentiments as much as possible, followed. In addition there were caste Panchayats to dispose of all caste disputes and other disputes submitted to by the parties and Military Courts with reference to military offences. It was in this atmosphere that a group of Attorneys plied their trade. In regard to these Attorneys most of them were a doubtful lot though some of them like Popham, Bromley and Spencer made their marit. The general description of these attorneys is given by Lockyer at the beginning of the century. "Lawyers are a plenty and as knowing as can be expected from broken linen drapers and other cracked tradesmen who seek their fortunes here by their wits." It was only in course of time when the court of the Governor-in-Council and the Mayors courts and the native courts came to be replaced by regular civil and criminal courts and the emoluments of the bar came to be considerable - by 1835 Honble Mr. John Shore in his Notes on Indian Affairs Vol. 2 was able to write that in one mofussal court counsel made upto Rs. 240 p.m. and in the Sudder court some as much as Rs. 1000 p.m. - a rupee then being, many times worth its value now - that these doubtful and unqualified characters practising as Attorneys came to be replaced by men of learning and responsibility educated in Law Colleges possessing prescribed qualifications subject to elaborate rules of professional conduct and having Bar Associations of their own. This is not the place for tracing the history of these courts viz., institutions of Diwani Adalat, Fausdari Adalat, the Regulating Act constituting the Supreme Court of Judicature in Bengal, the Reforms of Lord Cornwallis, re-constitution of the Adalat courts under the Marquis of Wellesley and the constitution of the ordinary courts of justice in its present form by Lord William Bentinck and the Indian High Court Act of 1862. Those desirous of doing so in so far as Madras is concerned may consult Colonel Loves Vestiges of old Madras. Forsters Factories in India, Mrs. Frank Penny Fort Saint George Madras Fawcebt. The first century of British Justice in India and Cowells History and constitution of the courts and Legislative Authorities in India (T.L.L. 1872) I have elsewhere summarised them in Part I of Vol. 1 of my Magisterial and Police guide" (M.L.J. publication). The Bar required Regulations and Acts for placing them on a firm basis. In regard to Regulations, the most important are Regulation 27 of 1814 and Regulation 2 of 1833. It is interesting to note that Regulation 27 of 1814 compelled every vakil to take an oath regarding his duties before he commenced his practice. The fees of pleaders had to be deposited in court and security given for payment of the adversarys pleaders before the trial started and vakils were required to be careful in accepting vakalatnamahs and to examine and sign pleadings before filing them and pleaders were made liable for damages which the clients might sustain by breach, of law on the part of the pleaders and the client could withdraw the vakalat at any stage of the case in case of his pleaders misconduct by application made to the court and if the pleaders were unable to attend court, they had to notify the same to the court in writing and otherwise they were made liable to pay a fine and vakils were prohibited from becoming law-agents or Muktears and a pleader was liable to be dismissed for giving an illegal or dishonest opinion and for incompetency. Then we have a series of Acts culminating in the Legal Practitioners Act 28 of 1879 amended by the Indian. Bar Councils Act 38 of 1926, placing the entire bar on a sound basis and regulating their relationship with the courts oil the one hand and the clientele on the other. 13. Thus we arrive at the present position set out by an eminent lawyer the late Sir P.S. Sivaswami Iyer, in his foreword to Justice Sundara Iyers Professional Ethics : Detractors of the legal profession have never been wanting in any time or country. The art of making the worse appear the better reason is one which to many a lay mind appears incompatible with a regard for truth and justice. The art of making the worse appear the better reason is one which to many a lay mind appears incompatible with a regard for truth and justice. Critics of this kind overlook the fact that the legal profession like every other has its own code of ethics and that the ethics of the Bar are the necessary result of the system of administration of justice in England and in all the countries which have borrowed their system from England. The theory underlying the English system is that the best means of finding out the truth between two contending parties is to hear the best that can be said for each side by a skilful advocate and entrust the decision to an impartial judge capable of weighing the arguments on both sides. Necessarily the system involves a division of functions between the judge and the advocate. It is the business and the duty of the advocate to make the best of his clients case and it is the province of the court to weigh the contentions in the balance and determine on which side the right lies. Whether this system has invariably worked for justice or not, there can be no manner of doubt that it does so in the large majority of cases and that it is essentially sound. It is needless to enter on any justification of the system and to dwell on the need for the legal profession as an indispensable aid to the administration of justice or on the futility of expecting litigants to engage advocates to point out the weaknesses in their own cases or the strength of their opponents cases. While it is the duty of the advocate to make the best of his clients case, it is his duty to conform to the rules of the game, which have been laid down by the traditions of the English Bar, traditions inspired by an eminent love of fair play and by a deep sense of the duty of the profession to assist in the administration of justice." 14. Having set out the long process by which we arrive at the position that it is a fundamental right of the accused under S. 340(1), Criminal P.C. and which has been reproduced in Art. 22(1) of the Indian Constitution that every accused has the right to consult and to be defended by a legal practitioner of his own choice to protect his interests by legitimate cross-examination of the witnesses appearing against him and for that purpose put questions to those witnesses which he the client would have put if he had the necessary professional skill, we have got to see what is the extent of the privilege of the party and the advocate in putting per se defamatory questions (- In Re Ramaswami Padayachi, AIR 1916 Mad 933 (N); - In re Murugesa Naidu, AIR 1916 Mad 142 (O); - Pita v. Emperor, AIR 1925 All 285 (P); - Sher Singh v. Emperor, AIR 1916 Lah 445 (1) (Q)). 15. Let us take the party accused first. The Ninth Exception to S. 499, I.P.C. affords protection when a defamatory statement is made in good faith for the protection of the interests of the person making it. The Exception covers not only such allegations of fact as could be proved true but also expressions of opinion and personal inferences - Jaffar v. Emperor, 11 Cri LJ 533 (Sind) (R). But in order to come within this exception the imputation must have been made or published by the accused (a) relevantly, (b) for the protection of his interest and (c) in good faith - Queen Empress v. Slater, 15 Bom 351 (S); - Kewala Nandgir v. Crown, 317 Pun LR Cr 1913 (T) and - Muhammad Gul v. Fazley Karim. AIR 1929 Cal 346 (U). In good faith, an essential ingredient is honesty of purpose. The accused must firstly, honestly believe his imputation to be true, and, secondly, he must honestly make it from a sense of duty to himself. He must not exaggerate or say unnecessary things. He must not make his duty the cover for spreading the libel. The question for enquiry in such cases will be whether the accused had reasonable grounds for believing the imputations to be true and for believing that it was necessary for his safety to give publicity to them. He must not exaggerate or say unnecessary things. He must not make his duty the cover for spreading the libel. The question for enquiry in such cases will be whether the accused had reasonable grounds for believing the imputations to be true and for believing that it was necessary for his safety to give publicity to them. The leading cases on the requisites of good faith are - Subrahmaniah v. Narasinga Rao, 4 Mys LJ 13 (V); - In the matter of Shibo Prosad Pandah, 4 Cal 124 (W), cited with approval in - Promotho Kath v. Emperor, AIR 1923 Cal 470 (S) and followed in - AIR, 1929 Cal 346 (U); - Empress of India v. Ramanand, 3 All 664 (Y); - Abdul Hakim v. Tej Chander, 3 All 815 (Z) and - Supdt. and Remembrancer of Legal Affairs, Bengal v. Purna Chandra, AIR 1924 Cal 611 (Z1). Of course in determining whether the accused should or should not have placed implicit reliance on the credibility of his source of information courts should not naturally insist upon exacting standards but should take into account the mental attitude of the person, his pre-judices and predilections and the surroundings in which he was placed. These indicate the scope of the privilege of an accused or party in making or publishing through his lawyer or by himself - it makes no difference whatsoever - per se defamatory imputations. 16. In other words, the privilege conferred upon, an accused or party under the ninth Exception to S. 499, I.P.C. is a qualified privilege and is not an absolute privilege as under the Common Law of England. On grounds of public policy attempts were made now and then by Judges with strong predilections for engrafting English Common Law on purely Indian problems but it is now settled law that the court cannot engraft in Exceptions to Section 499 I.P.C. the doctrine derived from the Common Law of England or based on public policy. It has been so held in - AIR 1921 Cal 1 (SB) (F), by a Special Bench of the Calcutta High Court consisting of five Judges in which Mookerjee, A.C.J. has exhaustively reviewed the law on the subject. It has been so held in - AIR 1921 Cal 1 (SB) (F), by a Special Bench of the Calcutta High Court consisting of five Judges in which Mookerjee, A.C.J. has exhaustively reviewed the law on the subject. But the cases on this point were by no means consistent since a contrary view was currently entertained by the Madras High Court in, - In re Venkata Reddi, 36 Mad 216 (Z2); - Raman Nayar v. Subramania Iyer, 17 Mad 87 (Z3); - Nadu Gounden v. Madu Gounden, 1 Weir 589 (Z4); - Pundmarazu v. Venkatramana, 19 MLJ 217 (Z5); - In re Alraza Naidu, 30 Mad 222 (Z6); - Queen Empress v. Govinda Pillai, 16 Mad 235 (Z7); - Manjayya v. Besha Chetty, 11 Mad 477 (Z8); - Sullivan v. Norton, 10 Mad 28 (FB) (Z9). But later the Full Bench case in - Tiruvengada v. Tripurasundari, AIR 1926 Mad 906 (FB) (Z10), has held that on matters specifically dealt with by the Penal Code, such as this, the English Common Law is not applicable. The Allahabad High Court has uniformly been holding that The liability to prosecution for defamation must always be determined with reference to this section : - 3 All 315 (Z); - Isuri Parsad v. Umrao Singh, 22 All 234 (Z11); - 29 All 635 (H) and - Tilkanchan v. Emperor, 11 Cri LJ 594 (All) (Z12). The Bombay authorities which were generally in favour of holding such statements as absolutely privileged have been departed from in the later Full Bench case in - Shantabai v. Umrao AIR 1926 Bom 141 (Z13). The Rangoon High Court in - Medonnell v. Emperor, AIR 1925 Rang 345 (214), the Punjab High Court in - Phundi Ram v. Emperor, 12 Cri LJ 193 (Lah) (Z15) and the Sind Court in - Hoondraj v. Emperor, AIR 1921 Bind 92 (Z16), held the same view as the Calcutta High Court. Therefore, as pointed out by me above in order to come within the ninth Exception to S. 499, I.P.C., the accused must show that the imputation was made relevantly, for the protection of his interest and in good faith. Therefore, as pointed out by me above in order to come within the ninth Exception to S. 499, I.P.C., the accused must show that the imputation was made relevantly, for the protection of his interest and in good faith. Judgement ORDER :- This criminal revision case has been filed against the order of discharge made by the learned Sub-Divisional Magistrate of Cheyyar in C.C. No. 493 of 1951 and which was refused to be interfered with by the District Magistrate of Vellore in C.R.P. No. 5 of 1952. 2. The facts are : C.C. No. 1647 of 1951 was filed before the Sub-Magistrate, Polur, for offences under Ss. 324 and 323, Penal Code, by Ayestia Bee, wife of Kasim Saheb, Chinnapushpagiri village, Polur Taluk, against Peerkhan Sahib, Fathima Bee and Chote Bee, all residing in Chinnapushpagiri village, Polur Taluk. It is unnecessary for us to go into the details of that case. So far as the present case is concerned, what happened was this. On this Ayesha Bee, the complainant, being examined as a prosecution witness, the accused who were defended by Mr. V.M. Sundaresa Aiyar, Advocate, Vellore put questions to this witness containing per se defamatory imputations to the following effects viz., (a) that the complainant WRP in criminal and illicit sexual intimacy with one Aziz Khan, husband of accused 2 in that case; (b) that the complainant was taken to Vellore and kept there by the said Aziz Khan in pursuance of such intimacy; (c) that the complainant bore two children to the said Aziz Khan; and (d) that the complainant was living in illicit sexual intimacy with the said Aziz Khan for the past ten years and upto the date of the above said questioning. 3. On the other hand, it is the case for the complainant that she is the lawfully wedded wife of Kasim Saheb and has been living with her husband for the past 15 years and has borne him no less than four children alive and two dead and that she has been leading a chaste life and that the imputations were grossly defamatory. The complainant gave a lawyers notice marked as Ex. P. 4 through her advocate Mr. Asker Ali Sahib and to this Mr. Sundaresa Aiyar has sent a reply notice which the Magistrate refused to allow to be exhibited as coming within the mischief of S. 126, Evidence Act. The complainant gave a lawyers notice marked as Ex. P. 4 through her advocate Mr. Asker Ali Sahib and to this Mr. Sundaresa Aiyar has sent a reply notice which the Magistrate refused to allow to be exhibited as coming within the mischief of S. 126, Evidence Act. There is no dispute however that Mr. Sundaresa Aiyar put those questions on instructions from the accused and in fact this was made out in another way, viz., the testimony of the complainant. As P.W. 1, she deposed : "Such questions were asked by counsel on the instructions of the accused. The allegations were unfounded. I was dishonoured in public Court. I questioned the accused. They said they would have such questions to be put to me. I sent a notice to the advocate Sundaresa Ayyar. He gave the reply notice." The married status and the purity of the married life of this Ayesha Bee unsullied by any extra-marital adventures was proved not only through P.W. 1 but also by the Khazi of Kizhambur P.W. 3 and the husband of P.W. 1, viz., P.W. 5. The advocate for the accused was examined as P.W. 4 and his evidence proceeded to a certain extent viz., his admitting the receiving of the notice given through Mr. Asker Ali Sahib and his own reply notice. Then at that stage the Sub-Divisional Magistrate has made a note; "Defence counsel objects to the filing. Objections upheld as the notice is in the nature of disclosing instructions by counsel which is debarred under S. 126, Evidence Act, and as it does not appear to me that it is saved by the provisos to the section in the circumstances of the case". The examination-in-chief was not proceeded with and the lawyer got out of the box with cross-examination marked nil. In other words, the case had proceeded to the stage when a charge should have been framed and the learned Sub-Divisional Magistrate discharged the accused on the following grounds : "These words would therefore be per se defamatory. However it has to be observed, though the charge of defamation, was based on the questions put by the counsel, there is nothing to show the precise nature and form of the questions, though, no doubt, we have the precise answers. However it has to be observed, though the charge of defamation, was based on the questions put by the counsel, there is nothing to show the precise nature and form of the questions, though, no doubt, we have the precise answers. Taking the evidence in the case, there is nothing to show that the accused instructed their counsel, P.W. 4 to put these questions to P.W. 1 during her cross-examination in C.C. No. 1643 of 1951 on the file of the Stationary Sub-Magistrate, Polur. Where and when these instructions were given to the counsel and which of the accused gave the instructions are matters which have no place in evidence. Then again even if the accused had given the imputed instructions to put such questions to P.W. 1, the counsel P.W. 4 is debarred under S. 126, Evidence Act to disclose the instructions given to him as such. P.W. 4 could not say that these questions were put by him to P.W. 1 on instructions from the accused. The authority in - Palaniappa Chettiar v. Emperor, 1935 Mad WN 460 (A) is to the point. Their Lordships observed that the accused cannot be found guilty of defamation committed through the mouth of the vakil. He should only be convicted by making the imputation to the vakil, thus publishing it, but that as that fact cannot be proved by the vakil without the consent of the complainant (S. 126, Evidence Act) the chance of getting such a conviction would be rare. This decision has been referred to in - K. Appayya v. Rama Bubhayya, AIR 1950 Mad 537 (B) and followed. Their Lordships stated that when a person acted as a lawyer to a party, he is debarred from disclosing the instructions received from his clients. P.W. 4 has not deposed that the accused gave instructions to put such questions and he is debarred from disclosing such instructions, if any." This order of the Magistrate resolves itself into two parts viz., one of fact and one of law. In so far as the finding of fact is concerned, the Sub-Divisional Magistrate has undoubtedly distorted the plain facts and drawn a totally unjustified inference. On the other hand, there is every thing in this case to show that it was only on instructions that these questions were put by Mr. Sundaresa Ayyar to P.W. 1. In so far as the finding of fact is concerned, the Sub-Divisional Magistrate has undoubtedly distorted the plain facts and drawn a totally unjustified inference. On the other hand, there is every thing in this case to show that it was only on instructions that these questions were put by Mr. Sundaresa Ayyar to P.W. 1. In fact the presumption With which we have to start investigation is that these questions were put on instructions and that it is only when the contrary is proved we cant come to the finding that these questions were put without instructions. (V. Pike v. Ma Khin Thein, AIR 1940 Rang 77 (O); - Md. Taqi v. M.A. Ghani, AIR 1945 Lah 97 (D); - Rex v. Gendan Lal (Sapru, J.), AIR 1948 All 409 (E), relying on - Satish Chandra v. Ram Dayal, AIR 1921 Cal 1 (SB) (F); - In re Nagarji Trikamji, 19 Bom 340 (G); - Emperor v. Ganga Prasad, 29 All 685 (H) and - Fakir Prasad v. Kripasindhu Pal, AIR 1927 Cal 303 (I)). The learned Sub-Divisional Magistrate has apparently not perceived the gross unfairness to the advocate when he writes the evidence in the case does not show that the accused instructed their counsel. Does it mean that the advocate invented the imputations himself and for no other purpose than to discredit the witness put these wholly false allegations ? On the other hand, we have the evidence of P.W. 1 which stood unshaken in cross-examination that the accused told her that they would have such questions put to her through their advocate in order to humiliate and intimidate her. Then the advocate himself in the box categorically admitted that the questions were put by him on instructions and his reply notice was shut out on grounds which will be shown to be erroneous. The nature of the questions is such that no decent vakil would invent them without instructions. That is why I have pointed out that the hastily arrived at finding of the Sub-Divisional Magistrate was grossly unfair to a respectable member of the bar viz., that without instructions he would go out of his way to impute unchastity, a continuous course of misconduct and a couple of bastard children to a young woman appearing before him with reference to a complaint in respect of offences under Ss. 324 and 323, I.P.C. (hurt). 324 and 323, I.P.C. (hurt). Therefore, the finding of fact is wholly incorrect and I have not the slightest hesitations in holding that the questions were put by the advocate on behalf of the accused-clients on instructions. 4. Then, on the point of law we have to consider the two important points raised viz., the circumstances under which a lawyer and/or his accused-client would be liable to be proceeded against for defamation in respect of per se defamatory questions put in cross-examination of prosecution witnesses. 5. "The rule of law", as pointed out by Lord Sankey, is the condition of liberty. Amid the crosscurrents and shifting sands of public life, the law is like a great rock upon which a man may set his feet and be safe while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts at any rate he can get justice." For it is on the maintenance and enforcement of the Reign of Law that civilisation exists. The alternative to the Reign of Law is the life of primitive savagery. 6. This rule of law in so far as the administration of criminal justice is concerned is ensured by the fundamental concept viz., that (1) the accused who can be tried only in accordance with law and (2) who can be convicted only in accordance with law - Courts of justice are not Courts of morals - must be able to protect his own interests by all legitimate means against the accusations made against him. This can be done by the only weapon which he possesses viz., the right to cross-examine his accusers. This cross-examination will be worth nothing if questions cannot be asked to test the veracity of the witness to discover who he is and what is his position in life and shake his credit by injuring his character (S. 146, Evidence Act). But unfortunately most of the accused persons are either illiterate or people unskilled in unravelling the motives, physiological limitations of the powers of observation etc., the psychological imperfections and the faulty and incoherent deductions of the witnesses. But unfortunately most of the accused persons are either illiterate or people unskilled in unravelling the motives, physiological limitations of the powers of observation etc., the psychological imperfections and the faulty and incoherent deductions of the witnesses. In the few cases where tae accused is able to be his own lawyer and acts as one, he finds owing to several circumstances that he is illustrating once more the old English adage that "a man who is his own lawyer has got a fool for his client". In other words, a man unpractised in speech, unskilled in law should have the aid of one possessing skill and power of speech but professing no personal knowledge or belief of the matters in questions, and that he should be able by his counsel to say all that he could say himself given the necessary skill, is an elementary requisite for enforcing the Reign of Law. On this it follows that there should be absolute confidence between the client and his legal adviser and that this confidence should be protected. The foundation of this rule embodied in S. 126, (Evidence Act is not difficult to discover. - It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection. It is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of courts, and in those matters affecting rights and obligations, which form the subject-matter of all judicial proceedings. If the privilege did not exist at all every one would be thrown upon his own legal resources. Deprived of all professional assistance, a man would not venture to consult any skilled person, or would only dare to tell his counsel half his case. (Per Brougham L.C., in - Greenough v. Gaskell, (1883) 1 Myl and K 98 at p. 103 (J)). It is absolutely necessary that a man in order to prosecute his rights or to defend himself from. (Per Brougham L.C., in - Greenough v. Gaskell, (1883) 1 Myl and K 98 at p. 103 (J)). It is absolutely necessary that a man in order to prosecute his rights or to defend himself from. an improper claim to have recourse to the assistance of professional lawyers and it being so absolutely necessary it is equally necessary to use the vulgar phrase, that he should be able to make a, clean breast of it to the gentleman and whom he consults with a, view to the prosecution of his claim or the substantiating his defence that he should be able to place unrestricted and unbounded confidence in the professional agent and that the communications he so makes to him should he kept secret unless with his consent (for it is his privilege and not the privilege of the confidential agent) that he should be enabled properly to conduct his litigation. That is the meaning of the rule embodied in S. 120, Evidence Act (Per Jessel M.R. in - Anderson v. Bank, (1876) 2 Ch D 644 at p. 649 (K); per Brougham L.C. in - Bolton v. Corporation of Liverpool, (1831-33) 1 Myl and K 88 (L)). The rigid enforcement of this rule no doubt occasionally operates to the exclusion of truth. But as pointed by Knight Brace, L.J. in - Pearse v. Pearse, (1846) 1C LJ Ch 153 (M) : "Truth, like all other good things, may be loved unwisely may be pursued too keenly, - may cost too much. And surely the meanness and the mischief of prying into a mans confidential consultations with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, suspicion, and fear, into those communications which must take place, and which, unless in a condition of perfect security, must, take place uselessly or worse, are too great a price to pay for truth itself" (Taylor on Evidence Ss. 911 to 913; Best on Evidence, S. 581; Roscoe on Criminal Evidence 133 to 135; Stephans Digest Art. 115 and Art. 116; Phipsons Law of Evidence, p. 182 (Book 2); Wigmore on Evidence, S. 2292; and Sirkar on Evidence, page 1206 (Seventh Edition)). 7. Thus, we arrive at the position that an accused or a party to a proceeding to protect his own interest is able to test the evidence of a witness appearing against him by cross-examination as to credit etc. 7. Thus, we arrive at the position that an accused or a party to a proceeding to protect his own interest is able to test the evidence of a witness appearing against him by cross-examination as to credit etc. through an advocate and that the intercourse between him and that advocate is protected unless expressly waived by the client. 8. This position has not always been the case and it would be interesting at this stage to trace the history of advocacy in our country albeit briefly owing to the limitation of space. 9. The best exposition of advocacy in Hindu India is to be found in Radha Kumud Mookerjee Endowment Lectures, 1945, on the Hindu Judicial System, delivered by Sir S. Varadachariar, Kt., Judge, Federal Court, and published by the M.L.J. Office for the Lucknow University : "It is not possible to say anything definite as to the existence of a legal profession in Ancient India (See a discussion in - 19 M.L.J., pp. 153 et seq (Journal)). Mr. Jayaswal thinks that professional lawyers ought to have existed from the days of Manu or at least from the first Century, A.D. (M. and Y., pp. 288-292). I find it difficult to interpret the reference to Vipra in Manu 8, 169, as a reference to a Lawyer Brahmin. The commentaries on this verse lend no support to such a reading. The passages in Narada (122) and Katyayana (90 to 95) seem. rather to refer to Agents than to Advocates or pleaders as we know them, because the persons representing are declared to be Parbies to the litigation with the difference however that the success or defeat is that of the party represented". (cf. the Cognitores and the Procurators of the Roman Law Buckland, p. 404). such a declaration would be uncalled for if the passages were intended to refer to a professional class whose profession itself was to represent others. I may however add that Mr. Kane reads these passages of Katyayana as referring to recognised Agents and Pleaders. (See his Introduction to Katyayana, p. xv). The succeeding passages in Katyayana place the Niyukta in the same category as Servants, Agents, Disciples and Relatives (of the party). This seems to me to militate against that expression being read as referring to a professional class. Kane reads these passages of Katyayana as referring to recognised Agents and Pleaders. (See his Introduction to Katyayana, p. xv). The succeeding passages in Katyayana place the Niyukta in the same category as Servants, Agents, Disciples and Relatives (of the party). This seems to me to militate against that expression being read as referring to a professional class. The passage in the Sukraniti is perhaps more significant, because it fixes the remuneration payable to the representative and declares him liable to punishment for receiving anything more; but it is noteworthy that it provides for the appointment of a representative not only on the ground of the partys ignorance of Vyavahara but also on the ground of his being otherwise busy. (Atiya Karya Kulena). The Arthasastra makes no reference to a legal profession. Mr. Nilakanta Sastriar in his book on the Cholas (Vol. II, p. 260) states that there appears no trace of the employment of advocates in the days of Chola Administration. In the laws of the Ancient Persians (translated by Mr. Bulsara), it is stated that in ancient Babylonia the institution of lawyers did not exist, but that by the time of the book which Mr. Bulsara was translating i.e., about the 6th or 7th century A.D., lawyers were in existence. (See pp. 34 and 612). In the Athens of Pericles, there was no Bench of trained Judges or Ear of trained lawyers. A party was not allowed to have his case presented by an Advocate, but there was nothing to prevent his learning by heart and repeating a speech prepared for him by a professional speech-writer (Logographer). The aim of the speech was not so much to inform the Court about the relevant matters, as to excite the emotions of the large audience and make it give its verdict on the impulse of the moment. There were in Athens a large number of Logo-graphers who wrote out speeches for parties and many of them made large incomes but the procession was regarded with little respect by enlightened Athenians. (See Trial of Socrates by Coleman Phillipson). In Rome, there no doubt existed a class of persons (Jurisprudentes) who made law their specialty; but they were not professional lawyers in our sense. They received no remuneration for their services. They were public men who only devoted some of their time to law as part of their public career. (See Trial of Socrates by Coleman Phillipson). In Rome, there no doubt existed a class of persons (Jurisprudentes) who made law their specialty; but they were not professional lawyers in our sense. They received no remuneration for their services. They were public men who only devoted some of their time to law as part of their public career. Advocacy proper was not the business of the Jurisconsult but of the Orator (Jol. pp. 91 to 94). The notion of law does not include of necessity the existence of a distinct profession of lawyers whether as Judges or as Advocates. There cannot well be a science of law without such a profession but justice can be administered according to settled rules by persons taken from the general body of citizens. In England there was no definite legal profession till more than a century after the Norman Conquest. (P. and M. Intrc. p. xxvii)." 10. Similarly, regarding lawyers in Muslim India we have no detailed and reliable account and the utmost learning and sympathetic consideration of the Administration of Justice in Medieval India could evolve nothing more than the following sketch by Mr. M.E. Ahmad I.C.S. : "Their duties are mentioned in the two Muslim Indian Codes, Fiqh-c-Firoz Shahi and Fatawa-e-Alamgiri. They were known as Vakils, a term which still applies to them. Marvardi speaks of the profession and considers expert knowledge of the law necessary both for the practice of law and for the acting as Qazi (J.R.A.S. 1910, p. 764). Moreland thinks that the profession did not exist but contemporary authorities have referred to Vakils. Ibn Batuta who was himself a Judge in the time of Muhammad Tughlaq (1315-1351) speaks of them (p. 194, Travels-Lee). Badaoni refers to Rae Arzani, a Hindu Vakil of Khan Zaman (p. 97, Vol. II and p. 76, Vol. II). Sir Thomas Roe refers to his Solicitor who perused his plaint (Roes Embassy, Foster, p. 260). The petition of the East India Company was presented by lawyers on the original side of the Emperors Court. * * * * A high standard was expected of Vakils - "The practice of the Law" said Omar, the second Caliph of Islam, was to be in good faith and pursued in sincerity as calling. Vakils had a right of audience in Courts and were attached to the staff of every King and his sons. * * * * A high standard was expected of Vakils - "The practice of the Law" said Omar, the second Caliph of Islam, was to be in good faith and pursued in sincerity as calling. Vakils had a right of audience in Courts and were attached to the staff of every King and his sons. One Vakil was given the title of Vakalat Khan in the time of Bahadur Shah. (1707-1712) (vide Bahadur Shah Mamah MS. K.C.C.) for his successful advocacy. A client could withdraw the powers of his vakil. During the reigns of Shahajahan and Aurangazeb, lawyers were appointed to defend, civil suits against the State and to assist poor litigants with free legal advice. They were, as I have mentioned, in the previous chapter, known as Vakil-e-Sharai (Khan Khan 2, p. 249). The vakils had to file their powers of attorney (Vakalat Namah) in all cases (see Br. Mus. Or. 2011) and even today the form in which the power is filed in Court is more or less the same. Remuneration was paid by the State to the Vakil-e-sharai at the rate of Re. one a clay (Mirat Supp. p. 149) but it is not clear what fees were charged by other Vakils from their clients. The order of Aurangzab directing the State vakils to give free advice to paupers suggests that the practice of accepting Mahentanah was in vogue. No receipts of payments have come to my notice, and the decrees in Baqiat do not mention the fees of the Vakils. There were no Bar Associations as the medieval Government was not based on modern democratic ideas, and there was no demand for such public organisations. As recorded elsewhere, Vakils could be appointed basis in the districts where they were practising. A perusal of judgments in Baqiat shows that Qazi Quim Ali was a local lawyer and officiated as Qazi for some time (p. 22). After he left the Bench he again appeared as a lawyer in - Dunia Murai v. Mir Shahamat, (Ali Baqiat, p. 25) for the Defendant. It should, however, be borne in mind that the word vakil was also a general term applied in those days to Agents (I.O.L. MS. 370) Shahjahans diplomatic representative at the Court of Aurangzeb was referred to as Vakil-e- An Hazrat, Waqua at-e-Alamgir MS. 1640 (Br. Mus. f. 39). It should, however, be borne in mind that the word vakil was also a general term applied in those days to Agents (I.O.L. MS. 370) Shahjahans diplomatic representative at the Court of Aurangzeb was referred to as Vakil-e- An Hazrat, Waqua at-e-Alamgir MS. 1640 (Br. Mus. f. 39). At another place Sujan Rae in his Khulasat ut Tawarikh has used the word Vakil as Saltanat or Vakil-e-Mutalaq for the Prime Minister." 11. Similarly, regarding advocacy we have very little tangible information both in the Vijayanagar empire and in the Maratha administration probably due to its little scope in the authoritarian regime of the former and arbitral system in vogue in the latter. (See Saletore, Social and Political Life in Vijayanagar Empire; N. Venkatramanayyas Studies in the history of the Third dynasty of Vijanagar; Maha Lingams Administration and social life under Vijayanagar; C.K. Srinivasan, Maratha Rule in the Carnatic and other well known works on Maharatta administration by Grant Duff, Kincaid etc.). 12. Then coming to the British Times, the Madras Bar is the oldest in India. First the merchant came and built his factory in 1639. The soldier then came to guard and protect it. With him the Doctor came to attend to the sick and wounded and the Chaplain to remind them of their religion. But the lawyer came at a later stage and that too not from reputable or skilled sources owing to the fact that in the beginning there were grave doubts and uncertainties about the Companys right to maintain courts and administer justice over non-English inhabitants. In fact under the Charter of 1661 which gave the president and the Council of Fort St. George some kind of judicial authority over the English inhabitants, they constituted themselves a judicial tribunal to dispense justice. They had Consultation Days on which they attended to their administrative work and the Day of Administering Justice on which they attended to judicial work. They set apart two days in the week for the latter purpose and also kept a diary of their proceedings in English and Portugese. The first agent who appears to have had some taste for law was Sir William Laughome. They set apart two days in the week for the latter purpose and also kept a diary of their proceedings in English and Portugese. The first agent who appears to have had some taste for law was Sir William Laughome. When he was near his imbarquing (sic : embarking ?) the Minutes of Consultation dated 19-9-1677, take stock of all his law-books and it was then resolved that the Agent do make payment out of the Honourable Companys cash for the same £5-15-6 (Rs. 51-8-0) to him for that library of law-books judged most useful for this place. The list is interesting. This court constituted by the Agent and Council was presided by Judges who had the advantage of local knowledge and had commonsense but painfully lacking in legal knowledge of which they were fully aware. Therefore, they started encouraging legal practitioners and in Consultation dated 18-3-1678 a regular table of fees was drawn up. It is interesting to remember that the Attorneys fees for the plaintiff for drawing declaration and pleading was 14 fanams and the like fees for the defendant was 21 fanams. This is the first reference to the Bar in the Companys records of Fort St. George and some more years passed before the practitioners appeared to act and plead. By charter dated 9-8-1683 the Governor and Council were empowered to establish Admiralty Courts to try cases against interlopers, forfeiture of ships and the like. This Admiralty Court had a chequered career and gave no scope for legal talents. In the meanwhile the responsibilities of the company became ever increasingly larger and larger and offences other than piracy had to be taken cognizance of. In 1726 came the Letters Patent establishing regular civil and criminal courts of Madras. The Civil Court was called the Mayors court composed of a Mayor and nine Aldermen. From their decision, appeal lay to the Governor-in-Council or where the subject of dispute exceeded 1000 pagodas in value to the King-in-Council. A criminal court was constituted at the same time by appointing the Governor and five senior members of Council as Justices of the Peace and directing them to hold quarter sessions for trial of crimes, treason excepted, as much as possible after the manner in which crimes were heard and punished in England. A criminal court was constituted at the same time by appointing the Governor and five senior members of Council as Justices of the Peace and directing them to hold quarter sessions for trial of crimes, treason excepted, as much as possible after the manner in which crimes were heard and punished in England. Therefore, the pattern of Grana Juries and Petty Juries and the application of the ferocious Penal Code of England mitigated by local customs and sentiments as much as possible, followed. In addition there were caste Panchayats to dispose of all caste disputes and other disputes submitted to by the parties and Military Courts with reference to military offences. It was in this atmosphere that a group of Attorneys plied their trade. In regard to these Attorneys most of them were a doubtful lot though some of them like Popham, Bromley and Spencer made their marit. The general description of these attorneys is given by Lockyer at the beginning of the century. "Lawyers are a plenty and as knowing as can be expected from broken linen drapers and other cracked tradesmen who seek their fortunes here by their wits." It was only in course of time when the court of the Governor-in-Council and the Mayors courts and the native courts came to be replaced by regular civil and criminal courts and the emoluments of the bar came to be considerable - by 1835 Honble Mr. John Shore in his Notes on Indian Affairs Vol. 2 was able to write that in one mofussal court counsel made upto Rs. 240 p.m. and in the Sudder court some as much as Rs. 1000 p.m. - a rupee then being, many times worth its value now - that these doubtful and unqualified characters practising as Attorneys came to be replaced by men of learning and responsibility educated in Law Colleges possessing prescribed qualifications subject to elaborate rules of professional conduct and having Bar Associations of their own. This is not the place for tracing the history of these courts viz., institutions of Diwani Adalat, Fausdari Adalat, the Regulating Act constituting the Supreme Court of Judicature in Bengal, the Reforms of Lord Cornwallis, re-constitution of the Adalat courts under the Marquis of Wellesley and the constitution of the ordinary courts of justice in its present form by Lord William Bentinck and the Indian High Court Act of 1862. Those desirous of doing so in so far as Madras is concerned may consult Colonel Loves Vestiges of old Madras. Forsters Factories in India, Mrs. Frank Penny Fort Saint George Madras Fawcebt. The first century of British Justice in India and Cowells History and constitution of the courts and Legislative Authorities in India (T.L.L. 1872) I have elsewhere summarised them in Part I of Vol. 1 of my Magisterial and Police guide" (M.L.J. publication). The Bar required Regulations and Acts for placing them on a firm basis. In regard to Regulations, the most important are Regulation 27 of 1814 and Regulation 2 of 1833. It is interesting to note that Regulation 27 of 1814 compelled every vakil to take an oath regarding his duties before he commenced his practice. The fees of pleaders had to be deposited in court and security given for payment of the adversarys pleaders before the trial started and vakils were required to be careful in accepting vakalatnamahs and to examine and sign pleadings before filing them and pleaders were made liable for damages which the clients might sustain by breach, of law on the part of the pleaders and the client could withdraw the vakalat at any stage of the case in case of his pleaders misconduct by application made to the court and if the pleaders were unable to attend court, they had to notify the same to the court in writing and otherwise they were made liable to pay a fine and vakils were prohibited from becoming law-agents or Muktears and a pleader was liable to be dismissed for giving an illegal or dishonest opinion and for incompetency. Then we have a series of Acts culminating in the Legal Practitioners Act 28 of 1879 amended by the Indian. Bar Councils Act 38 of 1926, placing the entire bar on a sound basis and regulating their relationship with the courts oil the one hand and the clientele on the other. 13. Thus we arrive at the present position set out by an eminent lawyer the late Sir P.S. Sivaswami Iyer, in his foreword to Justice Sundara Iyers Professional Ethics : Detractors of the legal profession have never been wanting in any time or country. The art of making the worse appear the better reason is one which to many a lay mind appears incompatible with a regard for truth and justice. The art of making the worse appear the better reason is one which to many a lay mind appears incompatible with a regard for truth and justice. Critics of this kind overlook the fact that the legal profession like every other has its own code of ethics and that the ethics of the Bar are the necessary result of the system of administration of justice in England and in all the countries which have borrowed their system from England. The theory underlying the English system is that the best means of finding out the truth between two contending parties is to hear the best that can be said for each side by a skilful advocate and entrust the decision to an impartial judge capable of weighing the arguments on both sides. Necessarily the system involves a division of functions between the judge and the advocate. It is the business and the duty of the advocate to make the best of his clients case and it is the province of the court to weigh the contentions in the balance and determine on which side the right lies. Whether this system has invariably worked for justice or not, there can be no manner of doubt that it does so in the large majority of cases and that it is essentially sound. It is needless to enter on any justification of the system and to dwell on the need for the legal profession as an indispensable aid to the administration of justice or on the futility of expecting litigants to engage advocates to point out the weaknesses in their own cases or the strength of their opponents cases. While it is the duty of the advocate to make the best of his clients case, it is his duty to conform to the rules of the game, which have been laid down by the traditions of the English Bar, traditions inspired by an eminent love of fair play and by a deep sense of the duty of the profession to assist in the administration of justice." 14. Having set out the long process by which we arrive at the position that it is a fundamental right of the accused under S. 340(1), Criminal P.C. and which has been reproduced in Art. 22(1) of the Indian Constitution that every accused has the right to consult and to be defended by a legal practitioner of his own choice to protect his interests by legitimate cross-examination of the witnesses appearing against him and for that purpose put questions to those witnesses which he the client would have put if he had the necessary professional skill, we have got to see what is the extent of the privilege of the party and the advocate in putting per se defamatory questions (- In Re Ramaswami Padayachi, AIR 1916 Mad 933 (N); - In re Murugesa Naidu, AIR 1916 Mad 142 (O); - Pita v. Emperor, AIR 1925 All 285 (P); - Sher Singh v. Emperor, AIR 1916 Lah 445 (1) (Q)). 15. Let us take the party accused first. The Ninth Exception to S. 499, I.P.C. affords protection when a defamatory statement is made in good faith for the protection of the interests of the person making it. The Exception covers not only such allegations of fact as could be proved true but also expressions of opinion and personal inferences - Jaffar v. Emperor, 11 Cri LJ 533 (Sind) (R). But in order to come within this exception the imputation must have been made or published by the accused (a) relevantly, (b) for the protection of his interest and (c) in good faith - Queen Empress v. Slater, 15 Bom 351 (S); - Kewala Nandgir v. Crown, 317 Pun LR Cr 1913 (T) and - Muhammad Gul v. Fazley Karim. AIR 1929 Cal 346 (U). In good faith, an essential ingredient is honesty of purpose. The accused must firstly, honestly believe his imputation to be true, and, secondly, he must honestly make it from a sense of duty to himself. He must not exaggerate or say unnecessary things. He must not make his duty the cover for spreading the libel. The question for enquiry in such cases will be whether the accused had reasonable grounds for believing the imputations to be true and for believing that it was necessary for his safety to give publicity to them. He must not exaggerate or say unnecessary things. He must not make his duty the cover for spreading the libel. The question for enquiry in such cases will be whether the accused had reasonable grounds for believing the imputations to be true and for believing that it was necessary for his safety to give publicity to them. The leading cases on the requisites of good faith are - Subrahmaniah v. Narasinga Rao, 4 Mys LJ 13 (V); - In the matter of Shibo Prosad Pandah, 4 Cal 124 (W), cited with approval in - Promotho Kath v. Emperor, AIR 1923 Cal 470 (S) and followed in - AIR, 1929 Cal 346 (U); - Empress of India v. Ramanand, 3 All 664 (Y); - Abdul Hakim v. Tej Chander, 3 All 815 (Z) and - Supdt. and Remembrancer of Legal Affairs, Bengal v. Purna Chandra, AIR 1924 Cal 611 (Z1). Of course in determining whether the accused should or should not have placed implicit reliance on the credibility of his source of information courts should not naturally insist upon exacting standards but should take into account the mental attitude of the person, his pre-judices and predilections and the surroundings in which he was placed. These indicate the scope of the privilege of an accused or party in making or publishing through his lawyer or by himself - it makes no difference whatsoever - per se defamatory imputations. 16. In other words, the privilege conferred upon, an accused or party under the ninth Exception to S. 499, I.P.C. is a qualified privilege and is not an absolute privilege as under the Common Law of England. On grounds of public policy attempts were made now and then by Judges with strong predilections for engrafting English Common Law on purely Indian problems but it is now settled law that the court cannot engraft in Exceptions to Section 499 I.P.C. the doctrine derived from the Common Law of England or based on public policy. It has been so held in - AIR 1921 Cal 1 (SB) (F), by a Special Bench of the Calcutta High Court consisting of five Judges in which Mookerjee, A.C.J. has exhaustively reviewed the law on the subject. It has been so held in - AIR 1921 Cal 1 (SB) (F), by a Special Bench of the Calcutta High Court consisting of five Judges in which Mookerjee, A.C.J. has exhaustively reviewed the law on the subject. But the cases on this point were by no means consistent since a contrary view was currently entertained by the Madras High Court in, - In re Venkata Reddi, 36 Mad 216 (Z2); - Raman Nayar v. Subramania Iyer, 17 Mad 87 (Z3); - Nadu Gounden v. Madu Gounden, 1 Weir 589 (Z4); - Pundmarazu v. Venkatramana, 19 MLJ 217 (Z5); - In re Alraza Naidu, 30 Mad 222 (Z6); - Queen Empress v. Govinda Pillai, 16 Mad 235 (Z7); - Manjayya v. Besha Chetty, 11 Mad 477 (Z8); - Sullivan v. Norton, 10 Mad 28 (FB) (Z9). But later the Full Bench case in - Tiruvengada v. Tripurasundari, AIR 1926 Mad 906 (FB) (Z10), has held that on matters specifically dealt with by the Penal Code, such as this, the English Common Law is not applicable. The Allahabad High Court has uniformly been holding that The liability to prosecution for defamation must always be determined with reference to this section : - 3 All 315 (Z); - Isuri Parsad v. Umrao Singh, 22 All 234 (Z11); - 29 All 635 (H) and - Tilkanchan v. Emperor, 11 Cri LJ 594 (All) (Z12). The Bombay authorities which were generally in favour of holding such statements as absolutely privileged have been departed from in the later Full Bench case in - Shantabai v. Umrao AIR 1926 Bom 141 (Z13). The Rangoon High Court in - Medonnell v. Emperor, AIR 1925 Rang 345 (214), the Punjab High Court in - Phundi Ram v. Emperor, 12 Cri LJ 193 (Lah) (Z15) and the Sind Court in - Hoondraj v. Emperor, AIR 1921 Bind 92 (Z16), held the same view as the Calcutta High Court. Therefore, as pointed out by me above in order to come within the ninth Exception to S. 499, I.P.C., the accused must show that the imputation was made relevantly, for the protection of his interest and in good faith.