The duty of a counsel to faithfully carry out his client's instructions and the presumption of good faith in signing pleadings containing defamatory matter.

1. This is a petition under S.561 A, Cr. P. C. to quash the charge framed by the First Class Magistrate, Trivandrum against the petitioner under S.500 read with S.34,1. P. C. The petitioner, Sri M. K. Parameswara Kurup, is a practising advocate of the Trivandrum Bar. He is the fifth accused in Calendar Case 697 of 1964. The complaint was that in the counter statement Ex. P-10 filed by the first accused in some proceedings in the Sub Court, Trivandrum certain allegations were made against the complainant which were false and per se defamatory, that similar defamatory imputations were made in the counter Ex. P-11 filed by accused 2 to 4 in the same matter and in both, the petitioner being their lawyer had attested the counter statements before they were actually put into court. During the pendency of the case accused 1 to 4 compounded the offence with the respondent and on the compromise petition being put in court, they were ordered to be acquitted. The complainant, however, wanted to proceed with the complaint against the petitioner and examined witnesses and the learned Magistrate on finding that a prima facie case had been made out has framed a charge against the petitioner under S.500 read with S.34 I. P. C. Section 34 is only a rule of evidence and does not create a substantive offence. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. I am unable to see how the offence of defamation committed by accused 1 to 4 in filing the statements could be said to have been done in furtherance of the common intention of all of them. Common intention within the meaning of S.34 I. P. C. pre-supposes a prior concert. It requires a pre-arranged plan, a meeting of minds. There is no such allegation, much less proof.

2. Now we have to see whether it could be said that the petitioner had committed the offence himself. S.499 brings under the criminal law the person who publishes as well as the person who makes the defamatory imputation. So there can be no offence of defamation unless the defamatory statement was either made or published by the accused. S.499 emphasises the words "makes or publishes". If there is no evidence that the petitioner had either made or published the defamatory imputation, then there is an end of the matter and the further question of justification or whether there was express malice will not arise. In the complaint it was alleged that the two counter statements were publicly read out by the petitioner in the hearing of others and thereby the petitioner had published the imputation. But no such evidence has been led that the petitioner bad read out the statement to anybody. There is also no allegation that the counter statements were in fact drafted or prepared by the petitioner and no evidence has in fact been led to show that the petitioner had anything to do with the preparation of the counter. The evidence of the first accused who is examined as a witness for the prosecution completely negatives this case. The counter-statements are also not in the hand-writing of the petitioner. So the essential ingredient of the offence has not been made out and the charge cannot stand. Merely attesting the written statement or counter of a client to enable it to be filed in court without anything more would not be sufficient to make out the offence of defamation against the lawyer. This point probably has been overlooked by the learned Magistrate.

3. Now even assuming that it was the lawyer who drafted the written statements there can be no offence against him. A counsel owes a duty to his client and he must carry out faithfully his client's instructions. If the client makes serious allegations against a party in a suit, it is the counsel's duty to plead those allegations in the plaint or written statement or other pleadings. No doubt the counsel must perform his duty with discretion, and clearly he should not plead what are obvious