Bombay High Court
28 Aug, 2009
CASE NO. Criminal Writ Petition No. 37 of 2009
Aires Rodrigues
vs.
Subodh Kantak
ATTORNEY(S)
Mr. S.G Bhobe with Mr. A.V Lawande, Advocate for respondent no. 1.
Ms. W. Coutinho, Public Prosecutor for respondent no. 2.
Petitioner present in person.
JUDGES
N.A Britto, J.
JUDGMENT
Rule. By consent heard forthwith.
1. This petition has been filed by the accused who is facing trial under section 499/500 I.P.C and is directed against the orders of the Learned J.M.F.C disallowing three questions as irrelevant. When grammatically corrected, they are as follows:-
1. Is it not true that amongst the constitutional functionaries of State of Goa as well as the Executives of the State Government you are the highest paid Officer of the Government, per month?
2. Can you name any officer of the Government of Goa by designation who draws a sum equivalent to the average monthly remuneration paid to you?
3. Is it true that the Bombay High Court at Goa on various occasions expressed concern as to your conduct and performance as the Advocate General?
2. The complainant is the Advocate General of the State of Goa and the accused is practicing Advocate, and though both ought to have been at the Bar and appearing for their clients, they have chosen, either by choice or compulsion to be in the witness box and the dock, respectively.
3. The complainant claims that he s in legal practice from August, 1987 and became Advocate General from 11.02.05 to 5.3.05 and again from 15.6.05 and continues till date. The complaint is based on certain statements allegedly made by the accused at a press conference held on 29.3.08 and which were reported on Marathi Daily “Gomantak” dated 30.3.08 and when translated read as follows:-
“The Governor S.C Jamir in public interest should immediately dismiss Subodh Kantak who has shamed the Constitutional post of the Advocate General.
Inquiry should be conducted into the bills submitted by Mr. Kantak and extra money paid to him should be recovered.
Shri Kantak is paid Rs. 8000/- per day per case even if the case is adjourned at his request”.
4. It is not necessary for the purpose of this petition to see how the statements were reported on the other dailies namely “Tarun Bharat” and “Goa Dhoot”, as mentioned in paragraphs 25 and 26 of the complaint. The case of the complainant is that the said statements were made by the accused as spokesperson of an organisation called “Utt Goenkara” which has no legal status and no legal entity and the said statements are defamatory, false and made deliberately in bad faith and with intention to malign the reputation of the complainant and have been made recklessly without exercising any responsibility or care which the accused as an advocate was bound to do. According to the complainant, the gist of the defamatory statements made by the accused is that the complainant as Advocate General has done double or excessive billing to the State Government in cases in which he appeared before the Hon’ble High Court and has disgraced the office of Advocate General.
5. The first question came to be rejected by the Learned trial Court observing that the complaint was filed alleging that the accused had defamed the complainant for cheating the State by double and excessive billing and thereby degrading the office of the Advocate General and had looted and raped the Goa exchequer and as such the fees in general of the Advocate General of Goa are not required to be inquired into.
6. The second question was disallowed with similar observation to the effect that the fees paid in general to the Advocate General of Goa were not in issue in this case. Further, the Learned Magistrate directed the accused not to ask any questions pertaining to the fees otherwise paid to the Advocate General of Goa; liberty was given to the accused to ask questions to the complainant as regards excessive and double billing.
7. The third question was objected because according to the complainant it was meant to annoy and scandalise the complainant. It was disposed off by detailed Order dated 15.6.2009 The Learned Magistrate after referring to various Judgments and particularly to the case of Govardhansing Raghuvanshi v. Chandanmal 1982 (1) Bom C.R 519 came to the conclusion that the general character or reputation of the complainant was not a matter in issue in an action for defamation under Section 499 I.P.C, and, considering the specific nature of the allegations which did not in any manner pertain to the competency or reputation in general of the complainant, the Learned Magistrate held that the question regarding competency of the complainant or his reputation in general is not a fact in issue and therefore the third question asked was not relevant and proceeded to uphold the said objection.
8. The petitioner submits that the case of Govardhansing has been revisited by the same Learned Judge in Baburao S. Chavan 1984 (1) BCR 194 wherein it was observed that “truth of the allegation is not necessarily a complete defence available to the accused in the case of defamation. While it may be true that in certain cases truth of the allegation may itself be a basis for the plea of good faith, it was not necessary in every case that truth of the allegation was a relevant defence for the accused”.
9. The petitioner submits with reference to para 25 of the complaint, that the gravamen is also the accusation of quantum of fees paid to the Advocate General of Goa and therefore the first order passed by the Learned J.M.F.C on 1.4.2009 that the fees in general of the Advocate General of Goa are not required to be inquired into, is an order which reveals lack of application of mind as it proceeds without considering the factual matrix of the case of the complainant and as such the said order needs to be set aside. The petitioner then submits that the complainant has basically claimed that he has been defamed by the petitioner/accused as to his character and as well as his competence as Advocate General. The petitioner has referred to para 52 of the complaint and has further submitted that the complainant has pleaded not only that his character has been attacked but also his competence has been called in question by the petitioner and these facts are relevant as to his character, conduct and competence as Advocate General of Goa which was the thrust of the questioning of the complainant in his cross examination focused by the petitioner. The petitioner further submits that the Learned Magistrate has arrived at a finding that the complainant as Advocate General is/was a public servant is not required to be decided at this stage and this reveals lack of application of judicial mind since the finding on this aspect would be relevant to examine whether the petitioner will be entitled to take the defences available to the petitioner under the exceptions to Section 499 I.P.C The petitioner has further submitted that while on one hand the Learned Magistrate has shut down the petitioner’s right to cross examination by taking recourse to the exception of Section 499 I.P.C and in case the cross examination is shut, it would prevent the petitioner from raising the said exception which at the end of trial can cause great prejudice to the petitioner. The petitioner submits that the Learned Magistrate ought to have given a finding whether the complainant was a public servant in terms of Section 21 I.P.C and on that count alone the second order requires to be set aside. As per the petitioner, Section 499 I.P.C itself provides that the words used should be “intending to harm or anything or having reason to believe that such imputation will harm the reputation of such person” and in order to claim that reputation is harmed, it is axiomatic that such person who makes such a plea, shall establish that he has a reputation which he has a right to defend and which the accused is of course entitled to rebut or disprove and in case there is no reputation, there can be no harm to reputation. The petitioner submits that in the aforesaid background it was necessary for the petitioner to prove that the allegations were not made by him recklessly or falsely but were factually correct statements and consequently in good faith and for public good. It is submitted that whether the statements were made to injure or harm the complainant and/or in good faith or for public good is statutorily laid down to be a question of fact which will be a relevant fact in issue. The petitioner submits that the question of proving the fact being true and that it is in good faith and for public good are intertwined and cannot be separated unless of course the the complainant withdraws the averments that the statements are false and admits that the allegations made by the petitioner are true in which case what would remain would be only the defences available to the petitioner.
10. On the other hand, Shri Bhobe, Learned Counsel, on behalf of the complainant, has submitted that truth is not a defence in case of defamation in a criminal case and in support thereof has placed reliance on the case of Devbrata Shastri v. Krishna Ballabh (AIR 1954 Patna 84). Shri Bhobe further submits that the complainant might have been paid the highest fees in the State of Goa but that was not in issue nor relevant to decide the complaint. Learned Counsel further submits that the orders passed by the Learned Magistrate show that the Magistrate is in control of the proceedings and whenever irrelevant questions have been asked, the same have been disallowed. Learned Counsel further submits that the complainant is entitled to show that the statements made are per se defamatory and therefore the complainant is not required to prove anything more and it is for the accused to prove the exception 1 and 2 of Section 499 I.P.C Learned Counsel further submits that as regards the second order, that in case the complainant had answered the questions in the negative the petitioner would not have been able to ask any further questions in terms of Section 153 of the Evidence Act (Illustration (d). On behalf of both parties, reliance has been placed on various decided cases.
11. The complainant has sought to restrict the accused in his cross examination. Whether the accused wishes to be covered by the first or the second exception to Section 499 is entirely his lookout. The complainant’s Counsel seems to be under a wrong impression that in a case of this nature it is the accused who is required to prove the exception and the complainant is required to prove nothing. The accused is certainly entitled to obtain from the complainant such facts and admissions which will enable the accused to prove any of the exceptions. The first exception to Section 499 IPC provides that it is no defamation to impute anything which is true and if made for public good. So truth and good faith are defences available to an accused. In a criminal trial or for that matter even in civil proceedings, every party must be given a fair chance to cross examine his adversary as long as the cross examination remains relevant under one of the other provision of the Act, and as long as the cross examination does not turn out to be a rumbling cross examination, as it is often called, or cross examination intended to annoy or insult the party or a witness. The essence of cross examination is that it is interrogation by the advocate of one party of the other party or his or her witness called by his adversary with the object either to obtain from such party/witness admissions favourably to his cause or to discredit him. Nobody likes to be cross examined and I suppose it is human tendency and yet cross examination is considered to be the most effective of all means of extracting truth and exposing falsehood. It is stated in para 801 of the Halsbury’s Laws of England, Third Edition, Volume 15 that the purpose of cross examination is that it is directed to (1) credibility of the witness; (2) the facts to which he has deposed in chief, including cross examiner’s version thereof; and (3) the facts to which the witness has not deposed but to which the cross examiner thinks he is able to depose. It is also stated therein that failure to cross examine a witness on some material part of his evidence, or at all, may be treated as acceptance of the truth of that part or the whole of his evidence. The object of cross examination is two fold and that is to weaken, qualify or destroy the case of the opponent; and to establish the party’s own case by means of his opponent’s witnesses (Phipson, 11th Ed p. 648). As per Powell, (9 Ed, p 532), the objects are to impeach the accuracy, credibility and general value of the evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross-examining party. The exercise of this right is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth. By means of it, the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he had used those means, his powers of discernment, memory and description are all fully investigated and ascertained and submitted to the consideration of the jury, (or the Court) who have an opportunity of observing his demeanor, and of determining the just value of his testimony. Considerable latitude is allowed in cross examination. It need not be confined to the facts elicited in examination in chief or to strictly relevant facts. The accused is entitled to cross examination to elicit facts in support of his defence from the prosecution witnesses wholly unconnected with the examination in chief. The cross examining advocate can even undertake to show at some subsequent stage that questions apparently irrelevant are really relevant. “Relevant facts” in cross examination must necessarily have a wider meaning then the term when applied to examination in chief. For instance the facts though otherwise irrelevant may involve questions affecting the credit of the witness and such questions are permissible in cross examination. Cross examination is not limited to the matters upon which the witness has already been examined in chief but extends to the whole case (See Sarkar on Evidence, 15 Edition page 2172). It must also not be forgotten that many a times the privilege of cross examination to credit is abused and this happens when the cross examiner allows himself to be a tool in the hands of unscrupulous litigant disrespecting his profession.
12. Section 499 I.P.C deals with defamation. It is nothing but an assault on the reputation of a person intending to harm or knowing or having reason to believe that the imputation made will harm such reputation. Section 499 has ten exceptions and the first three may be taken note of as being relevant to the case at hand. As per the first exception, it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. The second exception is that it is not defamation to express in a good faith any opinion whatever, respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. The third exception is that it is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question and respecting his character, so far as his character appears in that conduct, and no further. That a man has certain reputation is question of fact as set out by illustration (e) to Section 3 of the Indian Evidence Act, 1872.
13. The essence of the offence of defamation is the harm caused to the reputation of a person. There are still persons who cherish their reputation more than their life itself. Reputation, character and disposition are words which are not free from difficulty, in their meanings. Reputation, as generally understood, is what the neighbours and others say a person is. It is a composite hearsay and is the opinion of the community of a person. It is a form of hearsay and is admitted on the ground of necessity. In the words of Apex Court (in Bhagwan Swarup, AIR 1965 SC 682) it is general credit of the person amongst the public. Character is what a person actually is. Strictly speaking character means actual disposition i.e inherent qualities of a person or the sum total of his traits. Disposition, in the words of the Apex Court (in Bhagwan Swarup, supra) is inherent qualities of a person. In other words, character and disposition can mean one and the same thing. Explanation to Section 55 of the Act says that the word character in sections 52 to 55 includes both reputation and disposition. Section 3(e) of the Act says that “that a man has certain reputation, is a fact. It must be borne in mind that” no one is entirely virtuous or entirely vicious and that is why the Apex Court (in Bhagwan Swarup, supra) says that evidence of general reputation and general disposition is relevant in criminal proceedings. At page 986, Sarkar on Evidence, 15 Ed., it is stated that “what law admits as character evidence is not real character i.e particular traits but reputed character, i.e the opinion formed by others of a person, which is known as reputation. Reputation, therefore, is only one of several modes of proving character….”. Way back in Stirland v. Director of Public Prosecutions (1944) 2 ALLER 13) Viscount Simon, L.C had noted that there was some vagueness in the use of the term “good character” (similar to Section 54 of the Act) and that he was disposed to think that the word character included both concepts of good reputation which a man may have in his own circle and man’s real disposition as distinct from his friends and neighbours may think of him (See 1966 3 ALLER 285). The preponderance of judicial opinion is in favour of the proposition that questions in relation to complainant’s reputation cannot be excluded, as long as the imputations are not per se defamatory. This Court in Prakash Rajaram (infra) has held that section 146(3) of the Act permits a cross examiner to put question which will not only shake the credit of a witness but also expose his ethical and moral behaviour which may ultimately weigh with the Court while evaluating or appreciating testimonial evidence.
14. The Learned Magistrate held that the complainant’s reputation in general was not a fact in issue. What was in issue then? In terms of section 3 of the Act “facts in issue” mean and includes any fact from which, either by itself or in connection with other facts the existence, non existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows. It is now fairly well settled that the facts in issue in a criminal case are those which are included in the charge or substance of accusation. In this context reference would be made to Devbratta Shastri v. Krishna Ballabh (AIR 1954 Patna 84):
“Facts in issue on a charge under that section are the necessary ingredients to be established in order to bring the charge home to the accused person, and those ingredients relate only to the publication of a libellous statement intending to harm or knowing or having reason to believe that such imputation would harm the reputation of the person”.
It is also stated at page 43, Sarkar on Evidence (supra) that as regards criminal cases, the charge constitutes and includes the facts in issue. The Learned Magistrate has held that the third question was not relevant. The Act does not define what is relevant. It simply describes when one fact becomes relevant to another, and Section 3 of the Act says that one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to relevancy of facts. Relevant also means admissible. All facts are relevant which are capable of affording any reasonable presumptions to the facts in issue, or the principle matters in dispute. Section 9 of the Act says that facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose. A Judge is expected to admit as relevant the evidence of all those matters which shed a real, though perhaps an indirect and feeble light on the question in issue and refuse to admit facts which merely furnishes a fanciful analogy or conjectural inference.
15. The Division Bench Judgment of this Court in Baburao Patel v. Bal Thackeray (1979 Mh. L.J 11) was in fact followed in the case of Shri Govardhansing Raghuvanshi v. Chandanmal Ramprasad Rati 1982 (1) Bom. C.R 519. In the case of Baburao Patel, the Division Bench of this Court has held that the extent and manner of cross examination would depend on the circumstances and the issues involved, and that is rightly so. because the relevancy of any question has to be determined with reference to the facts in issue and other relevant facts and only because one question was allowed in one case of defamation it need not necessarily follow that a similar question would be allowed in another case of defamation. The Division Bench further held that unless a piece of evidence is admissible under the Evidence Act no question eliciting that evidence can be put to a witness. As regards Section 146 of the Act the Division Bench held that clauses (1) and (2) are self explanatory and as regards clause (3) it was observed that it permits questions in the cross-examination to shake the credit of a witness and for this purpose his character may be injured. In other words, injuring the character of a witness for the purpose of shaking the credit of that witness can be the subject matter of the assault. In fact, it is pointed out on behalf of the petitioner that the Learned trial Court, on previous occasion, had allowed a question inquiring into the character of the complainant when the complainant was asked about the names of the advocates who were earlier working with him and who were appointed as Government Advocates, on the complainant being appointed as Advocate General. The Division Bench further held that assault on the character of a witness permitted by clause (3) of section 146 must be directed only for the purpose of shaking the credit of the witness and not for any other purpose. In other words, if the cross examination was intended to shake the credit of a witness it must naturally be to impugn the credibility of that witness in relation to the matter which is involved and relevant under one or the other provisions of the evidence act. It is not permissible to have recourse to clause (3) of section 146 to ask all sorts of questions which are not necessary to shake the credibility of that witness. The Division Bench further held that three types of questions which are permissible under section 146 may be relevant under one or the other provisions of the evidence act or they may not be relevant though they are permitted to be asked under section 146. In case the question relates to a matter relevant to the suit or the proceeding the provisions of section 132 shall apply to that question as provided under section 147. If, on the other hand, such questions relate to a matter not relevant to the suit or proceeding, powers have been given to Court to decide whether the witness shall be compelled to answer and prescribe the limits and the manner in which that question can be asked and answer to that question be given. The Division Bench referred to the case of S. Pillay (AIR 1940 Rang. 113) and reiterated that the practice of asking questions indiscriminately by having recourse to the provisions of section 146 has been rightly frowned upon. Referring to Mosley J., the Division Bench reproduced what Mosley J. had to say:-
“……..Section 146, Evidence Act, allows question in cross-examination to shake the credit of the witness by injuring his character. Section 148 of the Act lays down that where a question is only relevant to character, the Court should decide whether the questions should be asked, and such questions are improper if the imputation which they convey is of such character that the truth of the imputation would not affect or would only slightly affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies”.
16. The Division Bench then held that considering the clear terminology of sections 146 to 148 it is clear that clause (3) of section 146 does not open the gates to unbridled cross-examination of a witness in order to assail his character except in so far as it is necessary to shake his credit in relation to the matter in issue. The Division Bench also observed that to allow the accused to cross-examine the complainant merely because the complainant has chosen the arena of the Magistrate’s Court and to assail his character not for the purposes covered by the provisions of the evidence act but for some other purposes such as embarrassing him and to ask such other further questions which are not relevant but which will only embarrass and expose him to other proceedings will amount to an abuse of the process of the Court.
17. In Shri Govardhansing Raghuvanshi 1982 (1) Bom. C.R 519 this Court held that section 146(3) of the Evidence Act permits cross-examiner to put questions which will not only shake the credit of a witness but which will also expose his ethical and moral behaviour which may ultimately weigh with the court while evaluating or appreciating testimonial evidence. What could be brought before the Court under section 155, can surely be put to the witness. “Credit” including “character” of a witness is a relevant factor to be taken into account by the Court. Indecent and scandalous question can be put if they directly relate to the facts in issue and also if it is necessary to be known in order to determine whether or not the facts in issue existed. If, in a given case the Court is satisfied, that even an indecent or scandalous question may have a bearing upon a fact in issue the same cannot be forbidden. If a question is merely intended to insult or annoy the witness and is offensive in form, the Court has power to forbid the same and protect the witness. Referring to the Division Bench Judgment in Baburao Patel’s case this Court reiterated that the permission given under section 146(3) cannot be allowed to degenerate into a license for the purpose of shaking the character of a witness indiscriminately. clause (3) of section 146 does not open the gates to unbridled cross-examination of a witness in order to assail his character except in so far as it is necessary to shake his credit in relation to the matter in issue. Questions cannot be asked for the purpose or scandalising and embarrassing the witness, but on the facts of that case held that no amount of challenge to the veracity of the complainant’s evidence or to the credibility of his evidence would make even a whit of difference in the ultimate inevitable conclusion that the said statements are patently defamatory. Cross examining the complainant on the question of the defamatory character of the statements, is therefore, wholly without any purpose. The Court also observed that the criminal law looks down upon the act of washing dirty linen of respectable persons in the public. Every person has got his own right of privacy, to his reputation and to the protection of his public image. It may be that for the public good, it might be sometime necessary to reveal the true character of the person, but revelation of such character only with a view to seek vengeance against the person is not something which is looked upon by the criminal law with approbation (emphasis supplied).
18. The Division Bench of Patna High Court in the case of Devbrata Shastri v. Krishna Ballabh (AIR 1954 Patna 84) had referred to the case of Lahore High Court reported in AIR 1923 Lahore 225 wherein the Single Judge has held as follows:-
“Similarly, in a criminal prosecution where it is essential, in order to constitute the offence of defamation, that the person who makes or publishes the imputation complained of should intend to harm, or know or have reason to believe that the imputation will harm the reputation of the person concerning whom it is made or published, the question what reputation the complainant had is relevant. If the petitioner in the present case were able to prove that the complainant had a notoriously bad reputation as a bribe-taker it might reasonably be argued that the imputation made as to his having taken a bribe on the particular occasion in question, even if false, could not damage his reputation as he had none to lose; and in any case proof of the complainant’s bad reputation would affect the sentence to be passed in case of conviction. I hold therefore, that the evidence which the petitioner wished to adduce in proof of the complainant’s bad reputation was wrongly excluded”.
The Division Bench however concluded stating that reputation is not at all the necessary fact to be proved in a charge under section 500 and hence it does not become a fact in issue. The accused is not entitled to ask questions in general concerning the character and reputation of the complainant so as to show that it was of such type that the news items or correspondence complained of could not lower it further and hence the publication by the editor did not bring him within the mischief of section 500 but before that, the Division Bench is para 15 observed as follows:-
“It may be that under the first exception to S.499, Penal Code, in a case of defamation imputing anything which is true concerning any person, if it be for the public good that the imputation should be published, the truth of the matter alleged may be established, and as has been held in a number of decisions, this can be done either by putting questions in cross-examination of the complainant or by leading evidence on behalf of the defence. In some cases, according to the nature of the allegation made by an accused person, it may well be that he gets the privilege of putting questions to the persecutor or his witnesses which are very near damaging the reputation of the person concerned, it cannot be denied that the burden of proving the exception lies upon the accused person, and on account of that responsibility he may feel justified, in certain circumstances, in putting questions or leading evidence which may not be warranted under any general right of showing up the reputation of the prosecutor. That, however, is an aspect of the matter with which we are not concerned in the present case”.
The Division Bench referred to Laidman v. Hearsey (ILR 7 All 906) and held that the principle of law laid down in that case would not help the petitioner in the case. According to the petitioner in Laidman (supra) a certain question was allowed because firstly it related to the question what was the reputation which the defendant was said to have harmed and secondly it was required to be gathered from the document as a whole whether it showed malicious intention or not.
19. In the case of Prakash Rajaram v. State of Maharashtra (1975 Cri. L. J. 1297) this Court held that the word ‘credit’ used in section 146 is of a wide and varied connotation and has to be distinguished from the word ‘character’, though the latter may include the former. ‘Credit’ would take in belief, estimate of reputation, however, good character, and ‘creditable’ so construed would mean, honourable or trustworthy. It was further observed that ‘character’ envisages a moral or ethical qualities of a person as a social being and thus it is plain that the provisions of section 146(3) permit a cross examiner to put questions which will not only shake the credit of a witness, but which will also expose his ethical and moral behaviour which may ultimately weigh with the Court while evaluating or appreciating testimonial evidence. By its very nature questions on malafides as opposed to bonafides, immorality as opposed to good morality, dishonesty as against honesty, falsehood as against truthfulness, can all conceivably be put, provided there is necessity and foundation for the same. For further (sic) section 155 expressly permits by indicating a mode and manner to bring in evidence upon the credit of a witness so as to impeach such testimony. Mere exercise by the media indicated by section 155, without asking questions permissible under section 146, may in a given case loose all its effectiveness and would be futile. What could therefore be brought before the Court under Section 155 can surely be put to the witness – hay must be put while he is giving evidence in a cause. The Court further observed that looking to the interwoven scheme of statutory provisions, it is plain that under the Indian law, “credit” including “the character” of a witness, is a relevant factor to be taken into account by every Court administering justice. However, such being the amplitude of necessity, limitations may arise because of the issues that may be involved in a particular given controversy and further the questions being merely asked to insult or annoy a witness or the question if by itself indecent or scandalous. In such offensive only the Court is empowered to protect the witness by the manner indicated by section 148, section 150 or even putting an embargo under section 151 or 152 of the Act. Till conditions of these provisions are not satisfied the matter is at large and witness must stand all the test before his word can be raised to pedestal of the proof. This Court referred to the case reported in AIR 1970 Mysore 34 and noted that provisions of section 146(3) of the Indian Evidence Act permitted a question which will injure the character of a witness and further considered on its basis the liability of the cross examining counsel in such matters an further observed as follows:-
“…… Thus, it would be seen that it is perfectly open to a lawyer to put questions to a witness in cross-examination in order ……. to shake his credit by injuring his character and the mere fact that the answer to such question may directly or indirectly tend to criminate the witness is no justification to refuse to answer such questions”.
A Division Bench of the Madras High Court in In re G. Vasantha Pai (AIR 1960 Mad 73) has pointed out that an advocate in the discharge of his duties to his client must not be hampered by any fear offending the opposite party or any witness, and in the wake of such a duty it is further pointed out that questions will have to be asked which may not be fit for the drawing-room or which may appear to be scandalous by “what is relevant cannot be scandalous”. These are enough illustrations to indicate that every matter has to be viewed from a larger and all-round perspective. By merely putting out the question the ground of relevancy in a given case, may disserve the cause of justice.
20. It is not necessary to refer to the case of Gajanan Laxman Bhalchandra v. Rangrao Amrutrao Deshpande (1980 Mh. L.J 821) wherein it is only observed that questions asked during cross-examination to discredit witness cannot form substratum for charge of criminal offence against advocate. In the case of Munnalal v. D.P Singh (AIR (37) 1950 Allahabad 455) it was observed that while the complainant was entitled to lead evidence to prove that the imputation was made with intention of harming, or with the knowledge or reason to believe that it would harm the reputation of the person concerning whom it was made, the accused was entitled to produce evidence or put questions in cross-examination of the complainant or his witnesses to rebut it. It was also stated that in a criminal prosecution for defamation, the accused was entitled to rebut the complainant’s case that the alleged imputation was likely to harm his reputation by showing that the complainant’s reputation was, in view of certain acts of omission or commission, already at a low ebb.
21. I am unable to agree with the conclusion arrived at by the Learned trial Court that the statements made by the accused are per-se defamatory. True, the Apex Court in the case of John Thomas v. K. Jagadeeshan (AIR 2001 SC 2651) has stated that when the imputation is per-se defamatory it would relieve the complainant of the burden to establish that the publication of such imputations has lowered him in the estimation of the right thinking members of the public. That observation or for that matter the observations of this Court in Govardhansing Raghuvanshi (supra) to the effect that “No amount of challenge to the veracity of complainant’s evidence or the credibility of his evidence would make even a whif of difference in the ultimate inevitable conclusion that the said statements are patently defamatory. Cross examining the complainant on the question of a defamatory character of the statements, is therefore, wholly without any purpose” cannot be made applicable to the facts of the case at hand because one of the allegations of the petitioner/accused is that the complainant has claimed extra payment of bills submitted by him and that being the case, the petitioner would certainly be entitled to demonstrate the truth of the said allegation or in default suffer the consequences thereof. It is too early in the day to contend that the accused should confine his cross-examination to the first or second exception to Section 499 I.P.C It is a choice of the accused as to under which exception he should set up his case, though the accused has made more than clear that he is sheltered by first exception. As stated by the Apex Court in Sewakram Sobhani v. R.K Karanjiya (AIR 1981 SC 1514) the questions of “public good” and “good faith” etc, (see first and second exception of section 499) are questions of facts to be decided after the regular trial is held and cannot be answered at a stage when even the accused has not been examined.
22. In my view none of the questions asked by the accused to the complainant could be considered as irrelevant, indecent or scandalous. The questions on fees of the complainant were relevant questions since according to the accused the complainant having been paid highest fees in the State of Goa had indulged in double or excessive billing to the State Government and this was a relevant question to be asked pertaining to the reputed character of the complainant. The complainant stated that the accused had called in question his competence as Advocate General by making false allegations on unsubstantial facts, etc. The accused was certainly entitled to ask the third question with a view to substantiate the imputation made by the accused that the complainant had disgraced the office of Advocate General with a view to bring his case under first exception, as the accused is entitled to prove his case not only on his own evidence but also by seeking admissions favourable to his defence, from the complainant. All questions asked were intended to bring the case of the accused under the exceptions.
23. None of the three questions could be said to be irrelevant or indecent or scandalous or meant to annoy or scandalise the complainant. In my view, therefore, the Learned trial Court was not justified in dis allowing any of the said three questions.
24. The petition therefore succeeds and the impugned orders disallowing the said questions as irrelevant are hereby set aside. Rule made absolute in terms prayers (b) and (c). Parties to appear before the trial Court on 18.9.2009 a 10.00 a.m for further proceedings.