Chhattisgarh High Court: Sanjay K. Agrawal, J. held that the continuation of criminal proceedings for the offence of defamation against an advocate who acted professionally as per the instructions of his client was nothing but abuse of process of Court.
The petitioner was an Advocate having standing of more than 45 years at the Bar in District Court, Jagdalpur (Bastar). He drafted a plaint on behalf of one Madhuri Pandey, daughter of late Ghanshyam Pandey, for declaration of title, confirmation of possession and permanent injunction against one Pratibha Pandey (hereinafter, the complainant). In the plaint, she was referred to as “concubine” of Ghanshyam Pandey. She filed a complaint against the petitioner and other alleging that she was the widow of Ghanshyam Pandey and not her concubine. She prayed for appropriate action or damage to her reputation.
The precise question for consideration of the Court was: Whether an Advocate, while acting under the instructions of his client and proceeding professionally, can be prosecuted/punished for the offence of defamation punishable under Section 500 IPC?
Rahul Tamaskar, Advocate for the petitioner contended that the petitioner was acting strictly in performance of his professional duty and he enjoyed privilege while acting as such. Chandresh Shrivastav, Deputy Advocate General, submitted that the present petition deserved to be dismissed. Punit Ruparel, Advocate submitted that the petitioner ignored the Duty to Opponent prescribed under Bar Council of India Rules.
The High Court was of the view that the petitioner was liable to be given the benefit of the ninth exception (imputation made in good faith by person for protection of his or others interests) to Section 499 (defamation) IPC. It was noted that the petitioner drafted the plaint on the basis of instructions provided by his client, the plaintiff. Referring to a plethora of Judicial Precedents, the High Court held: “an advocate, who acted professionally as per instructions of his/her client, cannot be made criminally liable for the offence of defamation under Section 500 IPC unless the contrary is alleged and established.” Finding the petitioner’s act to be bona fide, it was said: “As such, imputation was made in good faith and on the basis of instructions of his client in order to protect her right to property which she is claiming, as right to property is a constitutional right under Article 300A of the Constitution of India and therefore does not constitute the offence of defamation under Section 499 punishable under Section 500 and falls within the Ninth Exception to Section 499.”
In such view of the matter, the criminal proceedings pending against the petitioner before the Court of Chief Judicial Magistrate, Jabalpur was quashed.[Arun Thakur v. State of Chhattisgarh, 2019 SCC OnLine Chh 51, decided on 10-05-2019]
