ORDER W. Broome, J. - In this criminal reference the Second Addl. District and Sessions fudge of Allahabad has recommended the quashing of an order passed on 9-5-1970 by a first class Magistrate of Allahabad, directing P.C. Chaturvedi, Advocate, to be summoned as an accused in a case u/s 500 IPC filed against him by the opposite party Harbans Kaur. 2. Harbans Kaur had filed a complaint against Dr. A.N. Mukerji Under Sections 117, 493 and 376 IPC and Dr. Mukerji was convicted by the Sessions Judge of Varanasi u/s 417 IPC but was acquitted an the other charges. Thereupon Dr. Mukerji filed an appeal to the High Court against his conviction u/s 417, while Harbans Kaur filed an appeal against the acquittal of Dr. Mukerji Under Sections 493 and 376 IPC. In both these appeals P.C. Chaturvedi appeared as counsel for Dr. Mukerji and argued on his behalf. The present case u/s 500 IPC was filed on 1-11-1969, alleging that P.C. Chaturvedi while arguing the appeals in the High Court used abusive and filthy language in respect of Harbans Kaur, asserted that she had been the concubine of Dr. Mukerji, accused her of sexual incontinence and promiscuity and reinforced his arguments by making obscene gestures. The complainant's statement was recorded u/s 200 Code of Criminal Procedure on 27-11-1969, but it appears that the learned Magistrate, who was dealing with the case, was not prepared to summon the accused on the basis of her uncorroborated testimony and accordingly a date was fixed for the production of witnesses u/s 202 Code of Criminal Procedure. The only witness examined u/s 202 was S.N. Mulla, Advocate, who had been engaged in the appeals before the High Court as special counsel for the State and it was his testimony that was relied upon by learned Magistrate when passing the impugned order on 9-5-1970, summoning the accused. 3. A perusal of the statement of S.N. Mulla shows that he corroborated the complainant's allegations only with regard to the assertion that P.C. Chaturvedi had described her as a concubine and chhinala (adulteress). He denied that Chaturvedi has used filthy language and could not say what gestures he had made. 4. 3. A perusal of the statement of S.N. Mulla shows that he corroborated the complainant's allegations only with regard to the assertion that P.C. Chaturvedi had described her as a concubine and chhinala (adulteress). He denied that Chaturvedi has used filthy language and could not say what gestures he had made. 4. The question to be decided therefore is whether the Magistrate was justified in summoning the accused to stand trial u/s 500 IPC merely on being satisfied that a prima facie case had been made out that the accused had used the words "concubine" and "chhinala" in respect of the complainant. These words are no doubt per se defamatory, but we cannot lose sight of the fact that even on the complainant's own showing the accused had used these words as an Advocate, while arguing in Court on behalf of his client in the criminal appeals. The Ninth Exception to Section 499 IPC states that- It is not defamation to make an imputation on the character of another provided the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. A lawyer who makes imputations on the character of a person while arguing on behalf of his client is obviously entitled to the immunity afforded by this Exception, provided the imputations are made in good faith and are relevant to the case that is being argued. Learned Counsel appearing for Harbans Kaur, however, relies on the provisions of Section 105 of the Evidence Act, which lays down that the burden of proving the existence of circumstances bringing the case within any of the General Exceptions of the IPC or within any special exception or proviso contained in any part of the same Code or in any law defining the offence is upon the accused who wishes to take advantage of the said exception. He therefore contends that if P.C. Chaturvedi wishes to have the benefit of the Ninth Exception to Section 499 IPC the onus is on Chaturvedi to prove that the imputations made by him on the character of Harbans Kaur were made in good faith for the protection of the interests of his client Dr. He therefore contends that if P.C. Chaturvedi wishes to have the benefit of the Ninth Exception to Section 499 IPC the onus is on Chaturvedi to prove that the imputations made by him on the character of Harbans Kaur were made in good faith for the protection of the interests of his client Dr. Mukerji and this onus, he maintains, can only be discharged if Chaturvedi comes forward in court as an accused, pleads the exception and produces evidence to substantiate his plea. 5. I am unable to accept this argument. The consensus of judicial opinion appears to be that when an Advocate is charged with defamation in respect of words spoken or written by him in the performance of his professional duty, the court will presume that he acted in good faith unless there is cogent proof to the contrary and the burden lies on the prosecution in such a case to prove the absence of good faith-vide In re Nagarji Trikamji ILR 19 Bom 340, Nirsu Narayan Sinha Vs. King-Emperor, AIR 1926 Patna 499 and Munithayamma and Another Vs. Muddobalappa, AIR 1955 Kar 135 . The privilege enjoyed by counsel in this respect is of course not absolute but so long as there is no material before the court to suggest that an advocate was actuated by malice or improper motives in making the imputations which form the subject matter of the charge, he is presumed to have acted in good faith and is entitled to the benefit of the Ninth Exception to Section 499 IPC. The burden cast on the general run of accused by Section 105 of the Evidence Act to prove that the imputation on the character of the complainant was made in good faith, so as to bring the case within the Ninth Exception, is displaced, when the accused is an Advocate, by this legal presumption that exists in his favour; and the burden then shifts on to the prosecution to prove that there was absence of good faith on the part of the accused Advocate. 6. In the present instance, as already pointed out, the learned Magistrate decided to summon the accused only because the testimony of S.N. Mulla provided some corroboration for that of the complainant. 6. In the present instance, as already pointed out, the learned Magistrate decided to summon the accused only because the testimony of S.N. Mulla provided some corroboration for that of the complainant. But S.N. Mulla's statement contains nothing whatsoever that might give rise to the inference that P.C. Chaturvedi was not acting in good faith in the discharge of his professional duty when he described Harbans Kaur as a concubine and chhinala and some further evidence was thus needed before the accused could be summoned to stand his trial. My attention has been drawn to para. 22 of the complaint, which states that the imputations made by the accused against the complainant's character "were absolutely irrelevant for the purpose of a fair argument in the case and were not borne out from the record of the case, nor they were made in good faith nor in furtherance of his professional duties nor he had any privilege to make them" and it has been suggested that the Magistrate could summon the accused on the basis of these allegations. It is clear, however, that the Magistrate was not prepared to act on the uncorroborated assertions of the complainant and he admittedly made no attempt to verify the correctness of the allegations set forth in para. 22 by examining the record of the case in question. I am fully satisfied therefore that when the Magistrate passed the impugned order he was relying on the complainant's testimony only in so far as it received corroboration from the statement of S.N. Mulla and while deciding on this basis that the accused should be summoned, he totally ignored the presumption of good faith that existed in the accused's favour. 7. My conclusion therefore is that the Magistrate's order summoning the accused at a stage of the proceedings when there was no reliable material before him to displace this presumption that the accused had acted in good faith, was premature and unjustified. This reference is accordingly accepted and the impugned order of 9-5-1970 is quashed.