Judgment 1. THIS Rule is for quashing an order dated the 7th September, 1968, passed by Sri P. C, Chakraborty, Presidency Magistrate, 4th Court, Calcutta, framing two charges against the two accused petitioners under Section 500 I. P. C. in Case No. C-230 of 1968. 2. THE facts leading on to the Rule can be put in a short compass. The accused-petitioner No. 1 is an Advocate practising at the Judge's Court, Alipore and the accused-petitioner No. 2 is a son of the late Dulal Chandra Sadhukhan. The complainant who is an Advocate now employed as an Income Tax Officer, filed a petition of complaint on 4. 4. 68 before the learned Additional Chief Presidency Magistrate, Calcutta against the two accused-petitioners as also one Jagabandhu Sadhukhan under Section 500 I. P. C. stating inter alia that he was born of the union of the late Dulal Chandra Sadhukhan and Sm. Durga Rani Sadhukhan, who were lawfully married to each other and that the accused Nos. 2 and 3 are his step-brothers, being the sons of the said late Dulal Chandra Sadhukhan by his first wife, Mahamaya Dassi, since deceased; that the said Mahamaya Dassi died insane; that the father of the Complainant died on the 14th February, 1968, bequeathing considerable properties to him by a will, to the exclusion of his step-brothers; that the accused No. 1, P. C. Gupta, is very much known to the complainant's family and the co accused, having opportunity to know their status; that the accused No. 1 had prepared, as an Advocate, the General Power of Attorney in favour of the complainant's mother, Sm. Durgarani Dassi and had it registered on 12. 11. 62; that there are also other documents proving his knowledge of the said status; that the accused No. 1 sent a letter dated 16. 3. 68 to the Art Union Printing Works (P) Ltd. of 165, Sri Arabinda Sarani, Calcutta, containing defamatory statements, really imputing that the complainant is not the son of lawfully wedded parents; that the publication of the said communication harmed the complainant's reputation; and that the accused accordingly committed the offence of defamation. The learned Additional Chief Presidency Magistrate, Calcutta, examined the complainant on solemn affirmation and by his order dated the 4th April, 1968, sent the matter for a judicial enquiry by Sri S. R. Bhattacharya, Presidency Magistrate, 5th Court, Calcutta. The learned Additional Chief Presidency Magistrate, Calcutta, examined the complainant on solemn affirmation and by his order dated the 4th April, 1968, sent the matter for a judicial enquiry by Sri S. R. Bhattacharya, Presidency Magistrate, 5th Court, Calcutta. The learned enquiring magistrate examined several witnesses, considered the offending letter and after hearing the learned Advocates appearing on behalf of the complainant, submitted a report on 24. 4. 68, holding that there was a prima facie case against the two accused under Section 500 I. P. C. and 500/109 I. P. C. respectively. The learned Additional Chief Presidency Magistrate, Calcutta, thereafter, by his order dated 3. 5. 68 summoned both the accused under Section 500 I. P. C. and transferred the case to the file of Sri P. C. Chakraborty, Presidency Magistrate, 4th Court, Calcutta, for disposal. 4 witnesses were examined by the prosecution before the learned trying magistrate and several exhibits were proved and ultimately by his order dated the 7th September, 1968 the learned Presidency Magistrate framed charges under Section 500 I. P. C. against the two accused: The said order has been impugned and forms the subject-matter of the present Rule. Mr. Ajit Kumar Dutt, Advocate (with Mr. Subhas Chandra Bhattacharya, Advocate) appearing on behalf of the two accused-petitioners made a twofold submission, besides raising a third one relating to the accused-petitioner No. 1, P. C. Gupta alias Probhas Chandra Gupta. Mr. Dutt contended in the first place that the publication complained of does not come within, the ambit of defamation as defined in Section 499 of the Indian Penal Code read with explanation 4, inasmuch as it does not amount to an imputation against the character of any person but is only made in the context of the law of inheritance, for safeguarding the rights of a party affected. The second contention of Mr. Dutt is that the accused are protected under the 9th exception to Section 499 of the Indian Penal Code because the statements were made in good faith by a person for the protection of his or others' interests. In this context Mr. Dutt pinpointed the pendency of the probate case. The third contention raised by Mr. Dutta relating to the accused-petitioner No. 1, who is a practising Advocate at the Judge's Court, Alipore, is one of law and of some importance. In this context Mr. Dutt pinpointed the pendency of the probate case. The third contention raised by Mr. Dutta relating to the accused-petitioner No. 1, who is a practising Advocate at the Judge's Court, Alipore, is one of law and of some importance. The pith and substance thereof is that a lawyer, acting under the instructions of his client cannot commit the offence of defamation, unless and until there is an express malice on his part. In this context Mr. Dutt urged that even knowledge cannot be equated with express malice and pinpointed the fact that in the letter (Ext. 5|1) dated the 16th March, 1968, it was clearly averred that the learned lawyer was acting under the instructions and authority given to him by his client, the accused opposite party No. 2, and as such the charge under Section 500 I. P. C. is not maintainable against him. Several cases were cited in support of this contention and the same would be considered in the proper context. Mr. Nalin Chandra Banerjee, Advocate (with Mr. Arun Kumar Mukherjee, Advocate) appearing on behalf of the complainant-opposite party No. 2, Chandra Sekhar Sadhukhan, opposed the Rule and at the outset made a broad submission that the prayer, for quashing the charge at this stage in clearly premature and that the complainant should be allowed to proceed with the case which should be determined on merits, in a full-fledged trial. As to the first two contentions raised by Mr. Dutt bearing on the definition of defamation under Section 499 I. P. C. read with explanation 4, as also the protection provided for under exception 9 to the said Section, Mr. Banerjee contended that the points, involved are ultimately one of fact and cannot be decided at this stage. According to Mr. Banerjee the test for consideration at this stage is whether a prima facie case has been made out against the accused on the evidence adduced which as yet remained unchallenged; and the question of the availability of the protection under exception 9 to Section 499 I. P. C. or of the existence of the ingredients of the offence of defamation under Section 499 read with explanation 4 must abide the cross-examination of the witnesses and the evidence of rebuttal, if any, adduced by the defence in course of the trial. As to the third specific submission raised by Mr. As to the third specific submission raised by Mr. Dutt, in favour of the accused-petitioner No. 1, Mr. Banerjee contended that the averments made in paragraphs 6 and 7 of the petition of complaint as also the statements made in the evidence by p. w. 1 clearly establish knowledge on the part of the said learned lawyer as to the true relationship between the parties and the 'status' of the complainant opposite-party No. 2. Mr. Banerjee further submitted on the position in law that knowledge on the part of the offending person is tantamount to express malice and in any event, this point of law should also be decided either way in the light of the entire evidence available in course of the trial. Mr. Jitendra Kumar Bhattacharya, Advocate appearing on behalf of the State also opposed the Rule. Mr. Bhattacharya contended in the first place that the test to be applied now is whether the evidence so far adduced does make out a prima fade case against the accused-petitioners under Section 500 I. P. C. entitling the learned magistrate to frame charges thereunder. The evidence on record, according to Mr. Bhattacharya, does make out a prima facie case at this stage and as such the prayer for quashing is unwarranted and untenable. Mr. Bhattacharya next contended that the plea of good faith and of the essential ingredients constituting the offence charged, is premature at this stage. 3. HAVING heard the learned Advocates appearing on behalf of the respective parties and on going through the evidence on record, both oral and documentary, I proceed to determine the points raised. The first contention of Mr. Dutt is that the imputation concerned does not come within the ambit of the definition of defamation as laid down in Section 499 of the Indian Penal Code read with explanation 4 thereof inasmuch as it is not against the character of any person but only made in the context of the law of inheritance and for safeguarding the rights of the party affected. Mr. Dutt in this connection referred to the pending probate proceedings. Mr. Dutt in this connection referred to the pending probate proceedings. Section 499 of the Indian Penal Code defines defamation as follows : "whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person". Then there are four explanations and nine exceptions. For the purpose of the present case, a consideration of explanation 4 is necessary and it is as follows : "no imputation is said to harm a person's reputation, unless that imputation directly or indireclly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be beieved that the body of that person is in a loathsome state, or in a state generally considered as disgraceful". The sine qua non of the offence of defamalion as defined above, appears to be the publication by the accused of an imputation concerning the complainant intending to harm or knowing or having reason to believe that such imputation will harm the reputation of the said complainant by lowering his moral or intellectual character or credit, directly or indirectly in the estimation of others. Explanation 4 is an integral part of the offence of defamation. Going through the imputations contained in Ext. 5|1, and in the absence of any other evidence, it is difficult for me to agree at this stage with Mr. Dutt that the imputations do not prima facie come within the aforesaid definition of defamation and the proceedings should be quashed on that ground alone. The opposite party No. 2 who is an Advocate and an officer in the income tax department is a respectable person and any communication prima facie purporting to lower his credit in the estimation of others cannot be brushed aside in the absence of sufficient evidence or on grounds not yet established by cross - examination or other cogent materials. The first contention raised by Mr. Dutt accordingly fails. 4. THE second contention of Mr. Dutt also does not stand on a firmer footing. Mr. The first contention raised by Mr. Dutt accordingly fails. 4. THE second contention of Mr. Dutt also does not stand on a firmer footing. Mr. Dutt has urged that both the petitioners are protected under the 9th exception to Section 499 of the Indian Penal Code because the imputation concerned has been made in good faith by a person for the protection of his or other's interest. It is necessary therefore to refer to the provisions of the 9th exception to Section 499 I. P. C. and the same is as follows : "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". Nobody disputes that if the imputation is made in good faith for the protection of the interests of the person making it or of any other person or even for the public good, the same will be protected by the 9th exception to Section 499 I. P. C. The point at issue at this stage however is whether there is any clear and cogent evidence on the record to establish beyond reasonable doubt the said good faith on the part of both the accused. A charge has been framed by the learned trying magistrate on the evidence already on record on the ground that a prima facie case has been made out against the accused. It is not possible at this stage to hold that the learned trying magistrate has in any way not exercised his discretion judicially and in any event, the determination of the said point, in the case of the accused No. 2, must abide the trial for being considered in the light of further evidence that may be available. As was observed by the Supreme Court in the Case of (1) R. Kapor v. State of Punjab reported in AIR 1960 SC page 866 that quashing is an extraordinary remedy and should be sparingly used. I shall not be justified, in the facts and circumstances of the case to quash the proceedings pending against the accused No. 2, in the court below, on this ground and at this stage. The second contention therefore raised by Mr. Dutt also fails. The third and last submission of Mr. I shall not be justified, in the facts and circumstances of the case to quash the proceedings pending against the accused No. 2, in the court below, on this ground and at this stage. The second contention therefore raised by Mr. Dutt also fails. The third and last submission of Mr. Dutt is one of law and of some importance. It relates to the accused No. 1 and poses the question whether a lawyer, while acting under the instructions of his client, can commit the offence of defamation. For a proper determination, the point at issue has to be approached from two different angles viz, a case wherein the lawyer making the defamatory imputation has no knowledge of the correctness or otherwise thereof, and a case wherein he has such knowledge. In the first case, where the imputation has been written by the lawyer under the instructions of his client, without any knowledge on his part as to the correctness or otherwise of the facts, the position is simple and no offence is prima facie established. In the other case, where the lawyer who writes the intimation containing the defamatory imputations, though under the instructions of his client, has nonetheless the requisite knowledge regarding the allegations contained therein, the position is not so simple and requires consideration. The point involved is an intriguing one and has been considered by different authorities and in a number of cases. The pith and substance of such consideration is that a lawyer while acting under the instructions of his client and proceeding professionally has a qualified privilege; that while acting as such the lawyer does not, if not otherwise implicated, come within the ambit of defamation unless and until there is an express malice on his part; and that mere knowledge in such cases cannot be equated with express malice or malice in fact. 5. A proper appreciation of the concept of "express malice" depends on an understanding of the essential ingredients of the offence of defamation and the impact thereon of the doctrine of privilege. It is pertinent therefore to refer to the authorities for a proper definition of the term "defamation" and the ingredients thereof. Many definitions have been attempted to circumscribes the word "defamation" but none has been found exhaustive. The classical definition of the term has been given by Mr. It is pertinent therefore to refer to the authorities for a proper definition of the term "defamation" and the ingredients thereof. Many definitions have been attempted to circumscribes the word "defamation" but none has been found exhaustive. The classical definition of the term has been given by Mr. Justice Cave in the case of (2) Scott v. Sampson reported in (1882) 8 Q. B. D. page 491 as a "false statement about a man to his discredit". As was observed by Odgers on "libel and Slander" (6th Edn.) 'every man has a right to have his good name maintained, unimpaired. This right is a jus in rem a right absolute and good against all the world'. The statute in India clearly and categorically defines what defamation is and the same is incorporated in the definition contained in Section 493) of the Indian Penal Code. It is as follows : "whoever by words either spoken or intended to be read, or by signs or by visible representations makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person, is said except in the cases hereinafter excepted, to defame that person". Then there are 4 explanations and 9 exceptions. The present case involves a consideration of explanation 4 whereunder it is laid down that "no imputation is said to harm a person's reputation, unless that imputation directly or indirectly in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered, as disgraceful"; and of the 9th exception, relating to imputation made in good faith by person for protection of his or others' interest, which is as follows : "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". Bereft of all verbiage, the government of the offence of defamation, as applicable to the facts of the present case, therefore appears to be the publication by the accused, of an imputation concerning the complainant, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of the said complainant, directly or indirectly in the estimation of others, by lowering the moral or intellectual character of that person or his credit. 6. AGAINST the background of this definition of defamation, the concept of privilege has to be considered. The; concept of privilege is as old as the hills and its distinctive mark is its ancillary character. In a welfare state the consideration of the concept of privilege assumes additional importance. A privileged statement as Lord Dunedin puts it really stands for "the occasion which is privileged". It has been defined by Salmond in his "law of Torts" as one which is made in such circumstances as to be exempt from the rule that a man attacks the reputation of another at his; own risk'. Privilege again is of two kindsabsolute and qualified and varies from case to case. The privileges of the Parliament, as Erskine May observed in his "parliamentary Practice", "are rights which are 'absolutely necessary for the due execution of its powers'. They are enjoyed by individual members because the house cannot perform its function without unimpeded use of the service of its members. The privileges are rightly the necessary complements of the functions". As to the privilege enjoyed by the lawyers, a reference may be made to Halsbury's Laws of England (3rd Simond's Edn.) Vol. 3 at page 28 wherein it has been observed that "the expression of counsel uttered in his professional capacity with reference to and in the course of a judicial enquiry are absolutely privileged and no action will lie in respect of them. . . . . The rule of law is that what is said in the causes of administration of the law is privileged". Richard O'sullivan and Ronald Brown have also observed in their "law of Defamation" (1958 Edn) at page 59 that "no action will lie for defamatory words spoken by an advocate in his professional capacity in the course of a judicial enquiry, even though these words were uttered maliciously and were irrelevant to the enquiry". Richard O'sullivan and Ronald Brown have also observed in their "law of Defamation" (1958 Edn) at page 59 that "no action will lie for defamatory words spoken by an advocate in his professional capacity in the course of a judicial enquiry, even though these words were uttered maliciously and were irrelevant to the enquiry". It was further observed by the said authors that "there are occasions on which, in the interests of common convenience and the welfare of society, the law attaches a certain protection to defamatory matters spoken or written : these occasions are said to be privileged. " These are two sharply divided schools of thoughts on the point whether the privilege enjoyed by the lawyers is qualified or absolute. The qualified privilege that counsel enjoyed at one stage in common law, was made wider and became an absolute privilege. Chief Justice Erle observed in the case of (3) Kennedy v. Broun and Wife, reported in (1863) 32 Law Journal Reports C. P. (N. S.) page 137 that the words and acts of the Advocate are to be guided by his sense of duty to the court and himself, binding him to guard against the abuse of the powers entrusted to him. In a later case viz., the well-known case of (4) Munster v. Lamb reported in (1882-83) Law Reports 11 Q. B. D. page 588, this rule of privilege was made wider and it was held that according to common law no action will lie against an Advocate for defamatory words spoken with reference to and in course of an enquiry before a judicial tribunal though uttered maliciously or without any justification or excuse or from personal ill-will. The bounds of privilege were thus thrown wide open and the qualified privilege enjoyed by the lawyer became an absolute one. In India too, the law regarding defamatory statements made by lawyers in the course of judicial proceedings, was in an unsettled condition. In this country the privileges of the judges, the counsel, the attorneys and the witnesses must came within the bounds of exception 9 to section 499 of the Indian Penal Code. After a conflict of decisions at one stage, it has been ultimately held that the rule is not one of absolute privilege. In this country the privileges of the judges, the counsel, the attorneys and the witnesses must came within the bounds of exception 9 to section 499 of the Indian Penal Code. After a conflict of decisions at one stage, it has been ultimately held that the rule is not one of absolute privilege. As far back as in 1887 the Madras High Court in a Full Bench decision applied the common law principle of absolute privilege to the Advocates of this country. In a later decision of the Madras High Court, Mr. Justice Wallace doubted the aforesaid principle laid down by the Full Bench ruling and held that "there must be some independent allegation and proof of private malice". At the later Madras decision, this privilege was held in several other cases to be not absolute but qualified. The Calcutta High Court in a Special Bench case held in 1920 that the privilege envisaged in exception 9 to Section 499 I. P. C. is not a rule of absolute privilege. The case on the point decided by the different High Courts in India ultimately lay down that privilege enjoyed by the Jawyer in this country is only a qualified privilege; that he will not come within the bounds of the offence of defamation unless and until there is an "express malice" or malice in fact on his part; and that such express malice "ought not to be presumed". It is pertinent to refer to the various decisions on the subject for determining the point at issue and ascertain properly what is "express malice". 7. THE concept of "express malice" and its bearing on defamation has a chequered history. It is necessary therefore to ascertain in the first place as to what is "malice" before proceeding to discuss the case law on the extent of the privilege enjoyed by the lawyer and the effect thereupon of the concept of "express malice". As to the meaning of the word "malice" Mr. Justice Mccardie in the case of (5) Pratt and ors v. British Medical Association and ors. reported in (1919) 1 KB. page 244 observed at page 275 that "it is a matter of regret that a full explanation of the meaning of the word "malice'' when employed in other than a formal sense is not to be found. Perhaps the word is incapable of complete definition". Mr. reported in (1919) 1 KB. page 244 observed at page 275 that "it is a matter of regret that a full explanation of the meaning of the word "malice'' when employed in other than a formal sense is not to be found. Perhaps the word is incapable of complete definition". Mr. Justice Mccardie thereafter proceeded to define "malice" under two heads and after considering the definition of "malice" as sought to be given in the various cases, observed that "a prosecution may be malicious, in the full sense, if it be instigated by motive which the law does not approve". In a later case viz., the case of (6) British Railway Traffic and Electric Company Ltd. v. C. R. C. Company Ltd. and the London County Council reported in (1922) 2 KB. page 260, Mr. Justice Mccardie observed at page 267 that "from early times it has been stated -that 'malice is an essential part of a cause of action for a slander of title' ". A reference was made to the observations of Chief Justice Wilde in the case of (7) Pater v. Baker reported in (1847) 8 C. B. page 831 that "malice was not to be inferred merely because the defendant acted upon an incorrect view of Ms duty. Proof of actual malice was requisite to sustain the action". 8. IT is now pertinent to consider in details the decisions on the point to ascertain the extent and limits of this privilege on the part of the lawyer. A reference in the first instance, may be made to the case of (3) Kennedy v. Broun and Wife reported in (1803) Law Journal Reports, C. P. (N. S.) page 187. Chief Justice Erle observed at pages 146-147 that the Advocate "is trusted with interests and privileges and powers, almost to an unlimited degree. His client must trust to him at times for fortune and character and life. The law trusts him with a privilege in respect of liberty of speech, which is in practice bounded only by his own sense of duty, and he may have to speak upon subjects concerning the deepest interests of social life and the innermost feelings of the human soul". The law trusts him with a privilege in respect of liberty of speech, which is in practice bounded only by his own sense of duty, and he may have to speak upon subjects concerning the deepest interests of social life and the innermost feelings of the human soul". It was further observed at page 147 that "his words and acts ought to be guided by sense of duty that is to say, duty to his client binding him to exert every faculty and privilege, and power in order that he may maintain that client's right, together with duty to the court and himself, binding him to guard against the abuse of the powers and privileges entrusted to him by constant recourse to his own sense of right. " This concept was made definitely wider by the observations made in a well known case later on viz., the case of (4) Munster v. Lamb reported in (1882-83) Law Reports 11 Q. B. D. page 588 wherein M. R. Brett observed at page 599 that "i shall assume that the words complained of were uttered by the Solicitor maliciously, that is to say, not with the object of doing something useful towards the defence of his client; I shall assume that the words were uttered without any justification or even excuse and from the indirect motive of personal ill-will or anger towards the prosecutor arising out of some previously existing cause; and I shall assume that the words were irrelevant to every issue of fact which was contested in the court where they were uttered; nevertheless, inasmuch as the words were uttered with reference to and in the course of the judicial enquiry which was going on, no action will lie against the defendant however improper his behaviour may have been. " These observations extend in a marked manner, the privileges of the lawyer, amounting to an absolute privilege in common law. It is now pertinent to consider the decisions on the point by the different High Courts in India. " These observations extend in a marked manner, the privileges of the lawyer, amounting to an absolute privilege in common law. It is now pertinent to consider the decisions on the point by the different High Courts in India. In a Full Bench case of the Madras High Court viz., the case of (2) Sullivan (Petitioner) and Norton (Respondent) reported in (1887) I. L. R. X Madras (F. B.) page 28 wherein the common law principle was applied to advocates in this country, Chief Justice Sir Arthur Collins, delivering the majority judgment, observed at page 35 that "i think that the advocates in this country have and should have the same privileges in respect of liberty of speech 'bearing always in mind the remarks of Erle, C. J., in (3) Kennedy v. Broun', they have so long enjoyed in England; and that in this country it would be beyond measure embarrassing to the advocate and disastrous to the interests of the client if the advocate was exposed to the liability of a criminal or civil charge for defamation for words uttered in court. " In the case of (9) in Re : Nagarji Trikamji reported in (1895) I. L. R. XIX Bombay page 340 wherein Mr. Justice Jardine and Mr. Justice Farran observed at page 349 that "in considering whether there was good faith i. e., under Section 52, due care and attention of the person making the imputation must be taken into consideration. That of an advocate is well expressed by the Master of the Rolls in the passage cited above. He speaks from instructions; he reasons from facts sometimes true, sometimes false. He draws inferences from those facts sometimes correct, sometimes fallacious. He does not express his own inferences, his own opinions or his own sentiments. . . . such being his duty, it seems to us that where express malice is absent (and it ought not to be presumed) a court having due regard to public policy will be extremely cautious before it deprived the advocate of the protection of exception 9". A reference in this context may be made to the case of (10) Mr. Bhaishankar Nanabhai. applicant v. Mr. L. M. Wadia Barrister-at-Law and Mr. Hiralal D. Sarava, Attorney, opponents, reported in (1900) Bombay Law Reporter, Vol. A reference in this context may be made to the case of (10) Mr. Bhaishankar Nanabhai. applicant v. Mr. L. M. Wadia Barrister-at-Law and Mr. Hiralal D. Sarava, Attorney, opponents, reported in (1900) Bombay Law Reporter, Vol. II page 3 wherein Chief Justice Sir Lawrence Jenkins approved of the principles laid down in the case of (4) Munster v. Lamb and observed at page 5 that "the privilege of an advocate, as an answer to an action for slander is well established in England and it has been considered that the same measure of licence belongs to an advocate in the courts of this country". Mr. Justice Tayebji however held at page 16 that "assuming that an offending counsel is protected from liability in a civil action or criminal prosecution by reason of the privilege which he enjoys as an advocate, it by no means follows that he should not be responsible by this court under clause 10 of the Letters Patent for abusing the privileges to which he is entitled only by reason of his being an advocate of this court. . . . ". If therefore a proper case was made out and express malice or wanton disregard of the facts was proved or if it was shown that reckless and scandalous charges were made by any counsel absolutely without justification or without any instruction I would not hesitate to use the powers conferred on the High Court under clause 10 of the Letters Patent even though, under the doctrine as laid down in (4) Munster v. Lamb the counsel would not be held liable in a civil or criminal action". A reference may now be made to the case of (11) Emperor v. Purushottam Das Ranchhoddas reported in (1907) Bombay Law Reporter, Vol. IX page 1287 wherein Mr. Justice Chanda Varker and Mr. Justice Knight observed at page 1288 that "when a pleader is charged with defamation in respect of words spoken or written when performing his duty as a pleader, the court ought to presume good faith and not held him criminally liable unless there is satisfactory evidence of actual malice and unless there is cogent proof that unfair advantage was taken of his position as a pleader for an indirect purpose". In another case viz., in the case of (12) Upendranath Bagchi v. Emperor reported in (1909) I. L. R. XXXVI Calcutta page 375 Mr. In another case viz., in the case of (12) Upendranath Bagchi v. Emperor reported in (1909) I. L. R. XXXVI Calcutta page 375 Mr. Justice Holm wood and Mr. Justice Ryves approved of the principles laid down in (9) Nagarji Trikamji's case that "when a pleader is charged with defamation in respect of words spoken or written when performing his duty as a pleader, the court ought to presume good faith and not hold him criminally liable unless there is a satisfactory evidence of actual malice and unless there is cogent proof that unfair advantage was taken of his position as a pleader for an indirect purpose". I will now refer to the case of (13) Nikunja Behari Sen v. Harendra Chandra Sinha reported in (1914) ILR XLI Calcutta page 514. Mr. Justice Imam and Mr. Justice Chapman observed at page 517 that "a pleader is entitled to the presumption that the question he asks in cross-examination are put in good faith for the protection of the interest of his client. . . . To rebut the presumption of good faith in such a case there must be convincing evidence that the pleader was actuated by an improper motive personal to himself and not by a desire to protect or further the interests of his client in the case". A reference again may be made to the case of (14) Satish Chandra Chakraborty v. Ram Dayal De reported in (1921) ILR xlviii Calcutta (S. B.) page 388 wherein it was observed by Sir Asutosh Mukherjee, Acting Chief Justice, delivering the judgment of the Full Bench at page 425 that "if a party to a judicial proceeding is prosecuted for defamation in respect of a statement made therein, on oath or otherwise, his liability must be determined by reference to the provisions of Section 499 I. P. C. . . . . The court cannot engraft thereupon exceptions derived from the Common Law of England or based on grounds of public policy. Consequently a person in such a position is entitled only to the benefit of the qualified privilege mentioned in Section 499 I. P. C. ". The next case on the point is the case of (15) M. Banerjee, accused-petitioner v. Emperor, opposite party, decided by C. C. Ghosh and Cammiade JJ. and reported in AIR 1927 Calcutta page 823. Consequently a person in such a position is entitled only to the benefit of the qualified privilege mentioned in Section 499 I. P. C. ". The next case on the point is the case of (15) M. Banerjee, accused-petitioner v. Emperor, opposite party, decided by C. C. Ghosh and Cammiade JJ. and reported in AIR 1927 Calcutta page 823. Sir C. C. Ghosh delivering the judgment of the Division Bench observed at page 824 that "so far as the English law is concerned, it is settled that advocates have absolute and unqualified privilege in respect of questions asked in cross-examination. So far as advocates in this country is concerned. . . . they have not such unqualified and absolute privilege as is accorded to their brethren in England". Mr. Justice Wallace held in the case of (16) Mir Anwaruddin (Petitioner) complainant in both cases v. Fathim Bai Abidin and another (Accused) respondents reported in (1927) ILR 50 Madras page 667 that "when a lawyer is acting in the course of his professional dirties and is thus compelled subject to the disciplinary action of the court, to put forward every thing which may assist his client, good faith is to be presumed, and bad faith is not to be assumed merely because the statement is prima facie defamatory, but that there must be some independent allegation and proof of private malice" and that "even though some private malice is gratified by the publication of the statement, if such publication was imperatively called for in the interests of his duty to his client, the presence of such malice will not negative the presumption of good faith". In another case viz., the case of (17) Narayan Chandra Ganguly, accused-petitioner v. Harish Chandra Saha, complainant, opposite-party reported in AIR 1933 Calcutta page 185 Mr. Justice Pearson and Mr. Justice M. C. Ghosh held that "the presumption in the case of pleader asking questions in cross-examination is that such questions are put in good faith for the protection of his client's interests within the exception to Section 499". A reference in this context may again be made to a more recent case viz., the case of (18) lyeasha Bi, petitioner v. Peer Khan Sahib and ors. respondents reported in AIR 1954 Madras page 741 wherein Mr. A reference in this context may again be made to a more recent case viz., the case of (18) lyeasha Bi, petitioner v. Peer Khan Sahib and ors. respondents reported in AIR 1954 Madras page 741 wherein Mr. Justice Rama Swamy observed at page 748 that "the privilege conferred upon an accused or party under the 9th exception to Section 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. . . . When a complaint is made against an Advocate cc legal practitioner for defamation in respect of a statement made in the course of a judicial proceeding, it is the duty of the court to presume that the statement was made on instruction and in good faith and for the protection of his client's interest, and that unless circumstances clearly show that the statement complained of as defamatory, was made wantonly or from malicious or private motive, the Complaint should not be entertained". In a more recent case viz., that of (19) Tushar Kanti Ghosh v. Bina Bhowmick reported in ILR 1955 (2) Calcutta page 181, Chakravartti C. J. delivering the judgment of the Court observed at pages 180-181 that "a defamatory statement, not germane in any way to the privileged occasion and not pertinent to the defendants' vindication, is itself evidence of malice (20) Adam v. Ward, 1917 AC 309, per Loreburn, LC at p. 321 and it may be such evidence as to the whole of the publication (ibid. It is true that the malice required to be proved is express malice, in other words, malice in fact, as distinguished from the implied malice which the law presumes from the mere publication of defamatory matter. . . . It is true that the malice required to be proved is express malice, in other words, malice in fact, as distinguished from the implied malice which the law presumes from the mere publication of defamatory matter. . . . One of the ways in which the plaintiff can prove such wrong state of mind is by referring to the statement itself which may, from its nature alone, furnish evidence of express malice (per Lord Dunedin Adam v. Ward at page 329) and it does so when it is found to contain libellous statements in no way pertinent to the exigency of the occasion". The latest case on the point, though in a different context, is the case of (21) Miss Kamalini Manmade v. Union of India, repeated in (1967) LXIX Bombay Law Reporter, page 512 wherein the legal position pertaining to the doctrine of absolute privilege in relation to civil suits for damages for defamation was considered. On a consideration of several authorities and decisions, Mr. Justice Tulzapurkar held at page 517-18 that "the next question is as to whether this rule of Common Law obtaining in England has been recognized and applied by Indian Courts in our country. At the outset it may be stated that one time there was divergence of opinion among the several High Courts as to whether this rule of Common Law regarding absolute privilege enjoyed by an advocate or counsel should be recognized and applied in this country and some older decisions of Calcutta and Allahabad High Courts had taken the view that it should not be applied in India. . . . But I may observe that so far as the applicability of this Common Law Rule (the absolute privilege is enjoyed by the advocates and counsel in regard to whatever is spoken or written during the course of a judicial proceeding) to civil actions in libel or slander is concerned there is no preponderance of authority in favour of applying this Common Law Rule in this country". It was ultimately held at page 522 that "having regard to the aforesaid discussion of the several authorities it is clear to me that the English Common Law Rule pertaining to absolute privilege enjoyed by Judges, Advocates, Attorneys, witnesses and parties in regard to words spoken or uttered during the course of a judicial proceeding is applicable in India, at any rate in relation to civil suits filed for damages for libel or slander". It is abundantly clear therefore that even in the said Single Bench decision of the Bombay High Court, the doctrine of absolute privilege enjoyed by a lawyer in regard to words spoken or uttered during the course of a judicial proceeding was applied only to civil suits filed for damages for libel or slander and it was noted that there was originally a divergence of opinion and ultimately the preponderance of the decisions of the different High Courts is that the said doctrine of absolute privilege should not be applied to a criminal proceeding where the party prosecuted should be required to bring his case within exception 9 to Section 499 of the Indian Penal Code. 9. APPLYING the test laid down in the aforesaid cases to the facts of the present case I hold that the accused-petitioner No. 1 although he appears to have knowledge of the status of the plaintiff opposite party, had merely written the letter (Ext. 5/1) under the instructions from his client in his professional capacity and any express malice is ruled out by the evidence on record. Mr. Banerjee, appearing on behalf of the plaintiff opposite party No. 2, submitted that mere knowledge is sufficient and referred in this context to the avertments made in paras. 6 and 7 of the petition of complaint as also to the evidence of P.W. 1. The said evidence only proves prima facie that the accused-petitioner No. 1 had knowledge of the status of the plaintiff. Knowledge alone, however, cannot establish express malice or malice in fact as otherwise the sky would be the limit. A lawyer cannot carry on his profession if his freedom is so fettered. The said evidence only proves prima facie that the accused-petitioner No. 1 had knowledge of the status of the plaintiff. Knowledge alone, however, cannot establish express malice or malice in fact as otherwise the sky would be the limit. A lawyer cannot carry on his profession if his freedom is so fettered. The imputation complained of is after all not his own but has been made on behalf of the and under the instructions of his client; he need not vouchsafe for the truth The accused-petitioner No. 1, who is the lawyer, had acted, as the evidence discloses, professionally on the earlier occasion on behalf of the plaintiff's father and on the present occasion he was acting in the same capacity on behalf of the accused-petitioner No. 2. There is therefore no express malice or malice in fact on the part of the accused-petitioner No. 1 who accordingly does not come within the ambit of Section 500 I. P. C. The third and the last submission of Mr. Dutt therefore succeeds. 10. IN the backdrop of the case law cited above, I hold that the principle underlying such concept of privilege, qualified or absolute appears to be expediency. As was observed by the Master of the Rolls in the case of (4) Munster v. Lamb, "if any one needs to be free of all fear in the performance of his arduous duty, an advocate is that person" and therefore unless and until there is a proof of "express malice" on the part of the lawyer, in the discharge of his professional duties, he does not come within the bounds of the offence of defamation. In ancient Rome a class of persons called the juris prudentes came into existence though they were not professional lawyers in their true sense. Notion of law does not include of necessity the extent of a distinct profession of lawyers whether as judges or as advocates, but "there cannot well be a science of law without such profession". The lawyers ere the high priests in pursuit of truth at the altar of justice and there should be no spoke in the wheels of justice by fettering unreasonably the freedom of such lawyers. Fiat justitia mat coelum : let justice be done, though heavens may fall. In the result, I make the Rule absolute in part. The lawyers ere the high priests in pursuit of truth at the altar of justice and there should be no spoke in the wheels of justice by fettering unreasonably the freedom of such lawyers. Fiat justitia mat coelum : let justice be done, though heavens may fall. In the result, I make the Rule absolute in part. I uphold the order dated the 7th September, 1968 passed by Sri P. C. Chakraborty, Presidency Magistrate, 4th Court, Calcutta, in case No. C-23)) of 1968, framing a charge against the accused-petitioner No. 2 under Section 500 I. P. C. but I quash the charge framed against the accused-petitioner No. 1, P. C. Gupta alias Prabhas Chandra Gupta, under Section 500 I. P. C. and [direct that the case against the accussed No. 2, Kamal Kanta Sadhukhan, shall go back to the court below for being disposed of in accordance with law and expeditiously by the learned trying magistrate. The records are to go down as early as possible.