JUDGEMENT 1. The petitioner before me is a practising advocate, ordinarily at Margao. He was engaged by the defendants (respondents Nos. 2 and 3) in Suit Number 203/78 brought by respondent No. 1 and others. The plaintiffs in the suit had prayed for temporary injunction. The prayer for temporary injunction was refused. Respondents Nos. 2 and 3 had filed two affidavits opposing the issue of temporary injunction. In their affidavits they said that respondent No. 1 was also commonly known as "Endo" (idiot). Respondent No. 1 took exception to his being so described and filed a complaint under Section 501 I.P.C. not only against respondents Nos. 2 and 3 but against the present petitioner on the ground that he had drafted the affidavits. 2. Before issue of summons the complainant besides examining himself examined 4 other witnesses, including his advocate. Mr. Gilman Fernandes, under Section 202 of Cr. P.C. On 8-2-1979 the J.M.F.C., Margao - respondent No. 4 - took cognizance of the case against all the accused including the petitioner under Section 500 of the I.P.C. and directed issue of summons against all. It is against this order the petitioner's advocate has moved this Court for quashing criminal proceedings as against him. 3. The advocate for the petitioner has urged the following points for consideration :- (i) The learned Magistrate failed to appreciate that under law as well as precedent no prosecution would lie against an advocate for acts done for defence of his client. (ii) There being no allegation of malice or absence of good faith either in the complaint or the depositions, the counsel is entitled to protection under the principle of counsel-privilege. 4. It has been held by the Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 886 : (1960 Cri LJ 1239), that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to ensure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. 5. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. 5. In Parameshwar v. Krishna Pillai ( AIR 1966 Ker 264 ) : (1966 Cri LJ 1269), the High Court has observed as follows :- "The High Court is reluctant to interfere with the ordinary course of law and substitute its own judgement for the judgement of the Magistrate who is trying the case before the completion of the trial. But where on the facts of the case the High Court is satisfied that there is no case against the accused and that the further prolongation of the prosecution would amount to harassment of the process of the Court, it is the duty of the High Court to interfere under Section 561-A and to put an end to the abuse by directing the quashing of the prosecution. When the actual persons who had made the defamatory imputation having expressed regret and apologised, the matter was compromised, it was not necessary in the interests of justice to proceed against the petitioner, whose only sin was that he happened to be their advocate and to attest the statements as required by law before actually filing in Court." 6. The Supreme Court decision as well as the decision of Kerala High Court are based on Section 561-A of the Old Code corresponding to Section 482 of the new Cr. P.C. This does not make any difference in the application of the principle decided to this case. 7. Now, I have to see whether it could be said that the petitioner had committed the offence himself. Sec. 499 I.P.C. brings under Criminal law the person who publishes as well as the person who makes defamatory imputation. Thus, there can be no offence of defamation, unless the defamatory statement was either made or published by the accused. If there is no evidence that the petitioner has either made or published the defamatory imputation, the matter comes to an end and the further question of justification or whether there was express malice would not arise. Thus, there can be no offence of defamation, unless the defamatory statement was either made or published by the accused. If there is no evidence that the petitioner has either made or published the defamatory imputation, the matter comes to an end and the further question of justification or whether there was express malice would not arise. In the complaint petition, there is no allegation that the affidavits which carried the word "Endo" meaning "idiot" were publicly read out in the Court by the petitioner. No such evidence had also been led in the course of inquiry. Not a word has been said in the affidavit about the connection of the petitioner with the affidavits. So the essential ingredient of the offence has not been made out against the petition and so it is extremely doubtful if the charge could stand against him at all. 8. The learned counsel for the petitioner (sic) has submitted before me that the petitioner has drafted the affidavits. Now, even assuming that it was the lawyer who has drafted the affidavits, there can be no offence against him. The lawyer owes a duty to his client and he must carry out faithfully his client's instructions. It is the lawyer's duty to plead allegations in the plaint or written statement or other pleadings, such as affidavits, on the instructions of the client. It is no doubt true that the counsel must perform his duties with discretion for example he should not plead what are obviously irrelevant, wild or baseless allegations. It should also be remembered that the lawyer is not the Judge and it is not for him to decide whether the allegations made by his client against the opponent are true or false. Except in exceptional circumstances, he is bound to act on the client's instructions. If serious and baseless allegations are made against the opponent a lawyer may make himself liable for prosecution but in that case it has to be clearly established that he acted in bad faith or maliciously. The lawyer can certainly rely on Exception 9 to S.499 I.P.C. A Court may presume that a lawyer who has signed the pleadings has acted bona fide and without malice. Unless such presumption is made no lawyer can possibly discharge his duties towards his clients. The lawyer can certainly rely on Exception 9 to S.499 I.P.C. A Court may presume that a lawyer who has signed the pleadings has acted bona fide and without malice. Unless such presumption is made no lawyer can possibly discharge his duties towards his clients. If a lawyer makes himself liable for prosecution every time he makes a serious allegation in a pleading under instructions of his clients, it would be impossible for him to carry on his duties. In this case there was nothing before the Magistrate except the two affidavits and some notices issued to the accused including the lawyer before the complaint was filed. There is absolutely no evidence of malice or mala fide on the part of the counsel. I, therefore, am of the opinion that no prima facie case of defamation has been made out. That being so, the Court should not have issued summons against the petitioner. Prosecution of the petitioner would clearly be abuse of the process of the Court and would not be in the interest of justice. 9. For the reasons stated above this petition is allowed and the proceedings pending against the petitioner be only quashed the proceedings shall however proceed against other accused. Petition allowed.