Judgment : The above two criminal miscellaneous petitions have been filed by Mrs.M.Kalyansundari and R.Srinivasan respectively, the third accused and 1st accused in C.C No.15950 of 1983 on the file of the learned Chief Metropolitan Magistrate, Madras to quash the proceedings under Sec.482, Cr.P.C. 2. The first respondent in Crl.M.P.No.1426 of 1984 and the sole respondent in Crl.M.P.No. 2981 of 1984 is Dr.A.K.Faziluddin who is the complainant in the abovesaid calendar case. The second accused V.D.Muthu is the third respondent in Crl.M.P.No.1426 of 1984. The complainant Dr.AK.Faziluddin in both the petitions has filed a private complaint under Sec.499 read with Secs.34 and 500,I.P.C. against accused 1 to 3. The first accused is an advocate. The facts of the case are briefly stated as follows: 3. The complainant is a Dental Doctor by profession, having B.Sc, and B.D.S. Degrees and a respectable and prominent Public man in Madras City. He is a member of the Executive Committee of the Tamil Nadu Congress Committee (J) and also a prominent Executive Member in the Indo Arab Friendship Association. He is also the Associated Editor of the English Weekly “News Wind” and also Commissioner of Oaths. He is the younger son of (Late) Dr.M. A.Kareem, who was a popular public figure in his time and a prominent Councillor of the Corporation of Madras for more than 13 years. The complainant’s father is a freedom fighter. The elder brother of the complainant is Dr.A.K.Zainduddin and he is the President of the Tamil Nadu Congress (J) Committee, President of Indu-Arab Friendship Association, Editor of the English Weekly “News Wind” and also a prominent and popular public man and a social worker. So, the members of the family of (Late) Dr.M.AKareem and his sons including the complainant, are respectable and popular citizens with a status and reputation in public and personal life. 4. The third accused Mrs.M.Kalyanasundari was the respondent in a civil suit filed by Dr.A.K. Zainuddin on behalf of himself and the complainant, which was pending before the learned First Assistant Judge, City Civil Court, Madras in O.S.No. 99 of 1978. The second accused V.D.Muthu is the husband of the third accused and he represented the third accused in the suit and gave evidence for his wife. The first accused was the counsel for the accused 2 and 3 in O.S.No.99 of 1978. The second accused V.D.Muthu is the husband of the third accused and he represented the third accused in the suit and gave evidence for his wife. The first accused was the counsel for the accused 2 and 3 in O.S.No.99 of 1978. The first accused had shown a special interest more than the professional responsibility in the case, as he was very much closer to the second and third accused for whom he appeared in various cases against the complainant and his brother Dr.A.K.Zainuddin. On various occasions, the first accused has behaved in a provocative manner against the complainant with animosity and illfeeling and unbecoming of a professional. 5. On 27. 1983 at about 1.30 P.M. when the first accused was arguing on behalf of the second and third accused before the learned First Assistant City Civil Judge, Madras, he showed to the learned Judge a letter said to have been sent by a lawyer A on behalf of his client to Late Advocate B who represented Dr.M.A-Kareem on 15. 1972 which letter was marked earlier as Ex.R-42 (Document No. 10) through the second accused in the case and the first accused looked at contemptuously expressing his feeling of personal animosity towards the complainant and his brother and without any relevancy to the issue, he read the following wordings from the letter: “At first thought my client doubted whether the deceased for which your client (referring to Dr.M.A.Kareem) is treating lunatic patients is contagious and that his first letter was as a result of the said congation and did not intend to send a reply thereto.” Again the first accused looked at the complainant contemptuously and with an informative and suggestive look around the assembled lawyers and other public as if he was reading the extract from the letter for the sake of information to the assembled gathering in the court. He was also contemptuously laughing at with a sarcastic and ironical accent reading the extracts which irrevocably suggested his personal malice towards the complainant and his family and his intention with knowledge that he wanted to defame the complainant and his family, particularly Dr.A.K. Zainuddin and lower their status in the eyes of the public and lawyers. Many lawyers were present in court in addition to the members of the staff and public. Many lawyers were present in court in addition to the members of the staff and public. The extract which the first accused read out in open court was perse defamatory and derogatory in contents and the first accused thereby intended to harm the reputation of the complainant and his family including his deceased reputed father. Learned First Assistant Judge himself objected to the reading of the extract by the first accused and he dismissed the argument on the point of the extract as irrelevant and professionally unethical. He also warned the first accused for indulging in such unprofessional conduct by a lawyer. The first accused had also read out the extract which is per se defamatory with intent to defame the complainant and his family also to satisfy the second and third accused for whom he appeared as a counsel and at their instigation, he read out the same. The second accused was laughing as if he heard a jock when the defamatory extract was read by the first accused. At about2.30 p.m. on the same day, when the complainant was walking towards the coffee shop at Nethaji Subhus Chandra Bose Road outside the compound of the High Court Buildings, he happened to meet the first accused on the pavement in front of the office of the Bar Council, and the complainant peacefully asked him as to why he took so much interest in reading the defamatory extract from the letter and the first accused without any regret for his action, retorted by saying The first accused was loudly saying such defamatory words in the presence of many passers by and the friends of the complainant. Therefore, all the accused have commitied offences under the above provisions of law. 6. The complainant has also cited twelve witnesses in the complaint. These two criminal Miscellaneous petitions are filec for quashing the abovesaid complaint. Learned Chief Metropolitan Magistrate, Madras has taken the complaint on file under Sec.499 read with 34 and 500,I.P.C. 7. Both the petitioners in the above two criminal miscellaneous petitions have contended that they have not committed any offence that the complaint is barred by limitation since the defamatory notice is dated 15. 1972 and the complainant is filed only in December, 1983 nearly 11 years after the notice. In the entire complaint, there is no mention that the complainant was present in court on the date in question. 1972 and the complainant is filed only in December, 1983 nearly 11 years after the notice. In the entire complaint, there is no mention that the complainant was present in court on the date in question. The accused were not responsible for the lotice dated 15. 1972 and that the complainant’s father Dr.M.A.Kareem has not taken any action during his life time against the advocate or his clients who caused the notice to be sent and ther is no allegation that the complainant knew at out the contents or read the contents in the Court. The impugned notice was already exhibited in civil proceedings and if the allegation was defarr atory, because it must be a false one then the offences are said to have been committed in relation to the proceedings in the court and a special complaint under Sec.193, Cr.P.C, is necessary before taking cognizance of that case. It is submitted that the lawyer who filed the document has argued the case as a legal duty to do so on behalf of his client and that he is privileged in his conduct and no prosecution is maintainable against him. Even a reading of the entire complaint does not disclose any offence against the petitioners. The third accused being a woman who normally would not come out of the house, was deliberately and maliciously dragged before the criminal court due to long standing civil disputes over the property and to cause hardship to her. The first accused has made a specific plea that the notice was sent by the advocate ‘A’ and that the first accused was not responsible for it. No action was taken by Late Dr.M.A.Kareem in respect of that notice dated 15. 1972. The first accused has read out the notice dated 15. 1972 as per the instructions from his clients and in good faith and he had not malice against the complainant or his father. The first accused submitted that under Exception 9 of Sec.499, Cr.P.C, it is not a defamation to make an imputation on the character of a witness in good faith and for the protection of the client. Both the petitioners contended that the criminal proceedings is abuse of process of court and vindictiveand therefore, the criminal proceedings are liable to be quashed. 8. Learned counsel for the first accused Mr.N.T.Vanamamalai. Both the petitioners contended that the criminal proceedings is abuse of process of court and vindictiveand therefore, the criminal proceedings are liable to be quashed. 8. Learned counsel for the first accused Mr.N.T.Vanamamalai. the Senior Advocate contended that the first accused is a lawyer and that he was instructed by the client to read out the contents of the notice in the court and that as a professional, he has done the duty and nothing else and he has no malice against the complainant either to defame his late father and the family of the complainant and himself. Learned counsel for the first accused submitted that as per Explanation 1 to SeC.499,I.P.C., the first accused cannot be said to have committed any offence. Sec.499,I.P.C. reads as follows: “499. Defamation: Who ever, 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 cases hereinafter excepted, to defame that person.” Explanation 1 to Sec.499, I.P.C., reads as follows: “It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.” Therefore, according to the learned counsel, late Dr.M. A.Kareerh had not filed any proceedings or complaint before any court against the alleged defamatory statement contained in the impugned notice. Further, the notice was sent in the year 1972. The complaint was preferred in 1983, nearly after eleven years. There is no averment in the complaint that the deceased late Dr.M. A.Kareem had taken any action against Kuppammal who was responsible for causing the notice to be sent through her Lawyer ‘A’ now dead. The Advocate ‘B’ of late Dr.M.A.Kareem who had received notice from later Advocate ‘A’ is also now dead. Therefore, the advocate ‘A’ who sent the notice and the advocate ‘B’ who received the notice on behalf of late Dr.M. A.Kareem and Dr.M.A.Kareem himself are all dead now. The impugned notice was already marked as Ex.R-42 in the previous proceedings between Dr.M.A-Kareem and the 2nd accused. Therefore, this was once exhibited in open court as a document in the suit. The impugned notice was already marked as Ex.R-42 in the previous proceedings between Dr.M.A-Kareem and the 2nd accused. Therefore, this was once exhibited in open court as a document in the suit. Late Dr.M.AKareem possibly did not want to proceed against the 2nd accused or Kuppammal and her advocate ‘A’ who sent the notice with the alleged defamatory contents. This notice is now sought to be exhibited in the subsequent civil proceedings pending before the learned First Assistant City Civil Judge, Madras, The complainant took objection to the reading out of the contents of the notices. But, if the notice had to be marked as a document in civil proceedings, the first accused who is an advocate in charge of the second litigation pending before the court of the learned First Assistant City Civil Judge, Madras had no other option but to mark the same in the interest of his clients who are accused 2 and 3. This cannot be prevented because the impugned notice contains some defamatory allegation, according to the complainant. That notice might be relevant and material for the just decision of the second litigation. Once the document is to be exhibited, naturally it has to be read before the Presiding Officer in charge of that case and also before the learned counsel appearing for the complainant. 9. Mr.N.T.Vanamamalai, learned Senior Counsel relied upon a decision reported in MirAnwaryudin v. Coelho, 1927 M. W.N. 164:A.I.R. 1927 Mad. 572: 100 I.C. 62. This lays down a proposition that when a lawyer is acting in the course of his professional duties and is thus compelled, subject to the disciplinary action of the court, to put forward everything which may assist his client good faith is to be presumed, and bad faith is not to be assumed nearly because the statement is prima facie defamatory. There must be some independent allegation and proof of private malice from which in the circumstances of the case, the court considers itself justified in inferring that the occasion was want only seized as an opportunity to vent private malice. There must be some independent allegation and proof of private malice from which in the circumstances of the case, the court considers itself justified in inferring that the occasion was want only seized as an opportunity to vent private malice. Even the presence of malice will not override the presumption of good faith where the statement made was obviously necessary in the interests of the client, and where the lawyer could not omit to make it without gravely imperilling the interests of his client and would in fact not be discharging his duty to his client unless he made it. Even though some private malice is gran-tified 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. 10. Learned counsel Mr.N.T.Vanamamalai, Senior Advocate for the first accused also brought to my notice the judgment reported in Bashyam Ayyangar v. AndalAmmal 1934 M.W.N. 481, where it has been held that where a pleader is charged with the offence of defamation punishable under Sec.500,I.P.C., in that he unnecessarily in cross-examination put to the complainant, who was a witness in a criminal case certain questions which imputed immoral character and there is no allegation, and much less proof, that the pleader in putting the questions was actuaed by any motive of private malice and was not acting in the interests of his clients, the pleader is entitled to the benefit of Exception 9 to Sec.499,I.P.C., and the charge which imputes no ill faith but merely refers to the questions as having been put unnecessarily cannot stand and that therefore, the entire proceedings against the pleader ought to he quashed. Mr.N.T.Vanamamalai, Senior Advocate relied upon the decision reported in Miss Violet Warshaeev. Miss Maureen Froud, 1970L.W. (Crl.) 4. In that case, the defamatory matter was published by the accused. It was observed that mere communication of defamatory matter merely to the person defamed is not publication within the meaning of Sec.499, I.P.C. In other words, the defamatory matter must be published, that is communicated, to some person other than the person concerned to whom it is addressed. The word ‘publish’ in Sec.499, I.P.C. is used in its etymological sense as connoting ‘to make public’ or ‘to make known to people in general’. The word ‘publish’ in Sec.499, I.P.C. is used in its etymological sense as connoting ‘to make public’ or ‘to make known to people in general’. Since ‘publication implies cammunication to the public or the people, it follows that it is not publication if the libeller merely communicates his libel to the person defamed. Such communications my amount to an insult and be punishable as such, but it is not publication for which the could be held liable under Sec.499, I.P.C. Further, publication to constitute defamation should be made with the intention to defame some person. Explanation 4 to Sec.499, I.P.C, states 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 in, tellectual character of that person or lowers the character of that person in respect of his caste or of his celling or lowers the credit of that person, or causes it to be believed that the body of that person is in lath some state, or in state generally considered as disgraceful. The word ‘harm’ used her relates to imputations on a man’s character made and expressed to others; so as to lower him in their estimation and anything who lowers him merely in his own estimation certainly does not constitute defamation. 11. Mere, the first accused is stated to have published or made known to the public in general about the defamatory contents as found in the impugned notice. It is not the first accused who had made the alleged defamatory statement in the impugned notice. The notice is said to have been issued on the instructions of the client Kuppammal through her advocate ‘A’ who is now dead. Therefore whether that notice itself was issued at the instance of Kuppammal is not known. The author of that notice, advocate ‘A’ is now dead and therefore, it cannot be proved even in court in this criminal proceedings whether that notice was issued at all with the instructions of Kuppammal since that advocate ‘A’ is no more. Further, the first accused in this case has only read out the contents in open court and nothing else. The notice contained defamatory matters besides other points and therefore, the lawyer had to read out the entire contents in the interest of his clients. Further, the first accused in this case has only read out the contents in open court and nothing else. The notice contained defamatory matters besides other points and therefore, the lawyer had to read out the entire contents in the interest of his clients. The first accused could not read a portion and refuse to read the other portion of the notice. It is attempted to be marked in the present litigation even though this notice has already been marked as Ex.R-42 and therefore late Dr.M.AKareem did not take any action at the time when it was exhibited in open court. .12. Learned counsel Mr.N.T.Vanamamalai, Senior Advocate pointed out Explanation 1 to Sec.499, I.P.C., According to him this is not to defame late Dr.M.AKareem who if he had been really defamed, would have taken action against Kuppammal and also against the later Advocate ‘A’ who issued the notice. Therefore, according to the learned counsel for the first accused, the imputation if any, had no thar med the reputation of the person late Dr.M.AKareem while he was alive and therefore, he did not pursue the matter. The said notice was also not intended to be hurtful to the feelings of Dr.M.AKareem, Mr.N.T. Vanamamalai. Senior Advocate also relied upon a decision reported in Anuria Pathar v. Muthiah, 1971 L.W. (Crl.) 57, for the proposition that when a lawyer is acting in the course of his professional duties and is thus compelled subject to the disciplinary action of the court to put forward everything 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. .13. Mr.David Thyagarajan, learned counsel for the complainant submitted that the petitions for quashing the proceedings under Sec.482, Cr.P.C. are not maintainable as according to him, there is a prima facie case on a mere reading of the complaint that a case has been made out under Sec.499 read with 34 and 500,IP.C., it is also submitted by him that this Court will not scrutinise the evidentiary value of the complaint and it would mean prejudging the issue. He relied on a decision reported in Radhanath v. Balakrishna, 1985 Crl.L.J. 735. He relied on a decision reported in Radhanath v. Balakrishna, 1985 Crl.L.J. 735. The ratio decided in that case is that the inherent jurisdiction of the High Court under Sec.482, Cr.P.C, to quash a criminal proceeding is to be exercised in a proper case to prevent an abuse of process of the court or to secure the ends of justice. The criminal proceedings instituted against an accused person shall ordinarily be proceeded with in accordance with law. But however the allegation made in the first information report or in the complaint, even on their face value and if accepted in their entirely, do not constitute an offence or the impugned order clearly brings about a situation which is an abuse of he process of the court or for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary, the High Court may exercise its power under Sec.482, Cr.P.C. As the Magistrate at the stage of taking cognizance is restricted to findings out whether there is a prima facie case or not for proceeding against the accused person, the High Court is not to enter into a detailed discussion regarding the tactual aspects and should not launch on a meticulous examination of the case on merits and set aside the order of the Magistrate, taking cognizance and directing issue of process against some accused persons. Whether there are sufficient materials to hold a person guilty of the offence is to be decided at the stage of trial and not while finding out as to whether there are materials to take cognizance and proceed against the accused. Thus, where the allegations made against the petitioners do constitute the offences punishable under Secs.500 and 301,I.P.C., for which cognizance has been taken by the Sub-Divisional Judicial Magistrate and the trial has not been taken up and evidence has not been led, the High Court declined to interfere at such stage under its inherent jurisdiction. Learned Judge of the Orissa High Court referred to certain judgments of the Supreme Court in this judgment. 14. In the instant case, the advocate who issued the notice which according to the complainant contained defamatory matters, is now dead and it cannot now be found out whether the said advocate had got instructions from his client Kuppammal to issue such notice. Kuppammal is not an accused in the present complaint. 14. In the instant case, the advocate who issued the notice which according to the complainant contained defamatory matters, is now dead and it cannot now be found out whether the said advocate had got instructions from his client Kuppammal to issue such notice. Kuppammal is not an accused in the present complaint. Therefore, in the absence of evidence due to demise of the learned advocate A’ it is fatal to the prosecution if the proceedings are allowed to continue in the lower court. According to me, it would be an abuse of process of the court if the trial is allowed to be proceed with or alternatively to be turned out to be vexatious proceedings since it may not be possible for the complainant to prove the contents of the notice the author of which, namely Advocate ‘A’ is now dead. The first accused also had to read the notice in open court since it was already exhibited as Ex.R-42 in a previous litigation and he cannot read out the contents of the notice in a truncated form. Even the late Dr.M.AKareem had not taken any action when the notice had been issued in 1972. At this distance of time i.e., after 11 years, the complainant wants to vindicate justice. Even though there is no limitation for instituting the complaint, yet, it is very belated. Learned counsel for the complainant Mr.David Thiayaga-rajan submitted that these two criminal miscellaneous petitions are not maintainable under Sec482, Cr.P.C, in view of the judgment reported in Radnanath v. Balakrishna, 1985 Crl.L.1 735. According to me, there is no use of permitting the complainant to prosecute this case, since ultimately there is no chance of any success in the complaint. It will be futile for the complainant to prosecute these accused. It would amount to allowing vexatious proceedings to be proceeded with and it will be an abuse of process of the court. 15. It will be futile for the complainant to prosecute these accused. It would amount to allowing vexatious proceedings to be proceeded with and it will be an abuse of process of the court. 15. In the decision reported in Vinod Kumar v. State, A.I.R. 1982 P. & H. 372, a Full Bench of the Punjab & Haryana High Court had an occasion to discuss the power of the High Court under inherent jurisdiction in the matter of quashing the first information report under Sec.482, Cr.P.C. Their Lordships of the Punjab and Haryana High Court, relied upon a judgment of the Supreme Court reported in State of Kamataka v. L.Muniswamy, (1977)3 S.C.R. 113 : A.I.R. 1977 S.C. 1489 at 1492. The four tests summarised in the above decision are as follows: “(i) when the first information report, even if accepted as to be, discloses no reasonable suspicion of. the commission of a cognizable offence; (ii) when the materials subsequently collected in the course of an investigation further disclose no such cognisable offence at all; (iii) when the continuation of such investigation would amount to an abuse of power by the police thus necessitating interference in the ends of justice; and (iv) that even if the first information report or its subsequent investigation purports to raise a suspicion of a cognizable offence, the High Court can still quash if it is convinced that the power of investigation has been exercised mala fide” Their Lordships of the Supreme Court in the decision State of Kamataka v.L.Muniswamy, A.I.R. 1977 S.C. 1489 at 1492, observed as follows: “....In the exercise of this whole some power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to generate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justic. has got to be administered according to law made by the legislature. The compelling necessity for making these observations is that without proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width are contours of that salient jurisdiction .......” “.....Considerations justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to cause and a jurisdiction as wholesome as the one conferred by Sec.482 ought not to be encashed within the straitjacket of a rigid formula.” 16. In view of the at ove discussion I hold that the 1st accused has discharged his propersonal duty bona fide and the accused 2 and 3 had nothing in to say in this matter and the continuation of the criminal proceedings would be an abuse of process of the court, I am of the view that the complainant cannot be permitted to pursue this prosecution and that ends of justice require that the proceedings are to be quashed and these petitions are maintainable under Sec.482, Cr.P.C. Accordingly, the proceedings in C.C.No.15950 of 1983 on the file of the Chief Me tropolitan Magistrate, Madras are hereby quashed and the criminal miscellaneous petitions are allowed. However, it is not open to the accused to pursue against the complainant for having filed this complaint in the lower court in any manner.