ORDER :- This criminal revision case has been filed against the order of discharge made by the learned Sub-Divisional Magistrate of Cheyyar in C.C. No. 493 of 1951 and which was refused to be interfered with by the District Magistrate of Vellore in C.R.P. No. 5 of 1952.

2. The facts are : C.C. No. 1647 of 1951 was filed before the Sub-Magistrate, Polur, for offences under Ss. 324 and 323, Penal Code, by Ayestia Bee, wife of Kasim Saheb, Chinnapushpagiri village, Polur Taluk, against Peerkhan Sahib, Fathima Bee and Chote Bee, all residing in Chinnapushpagiri village, Polur Taluk. It is unnecessary for us to go into the details of that case. So far as the present case is concerned, what happened was this. On this Ayesha Bee, the complainant, being examined as a prosecution witness, the accused who were defended by Mr. V.M. Sundaresa Aiyar, Advocate, Vellore put questions to this witness containing per se defamatory imputations to the following effects viz.,

(a) that the complainant WRP in criminal and illicit sexual intimacy with one Aziz Khan, husband of accused 2 in that case;

(b) that the complainant was taken to Vellore and kept there by the said Aziz Khan in pursuance of such intimacy; (c) that the complainant bore two children to the said Aziz Khan; and

(d) that the complainant was living in illicit sexual intimacy with the said Aziz Khan for the past ten years and upto the date of the above said questioning.

3. On the other hand, it is the case for the complainant that she is the lawfully wedded wife of Kasim Saheb and has been living with her husband for the past 15 years and has borne him no less than four children alive and two dead and that she has been leading a chaste life and that the imputations were grossly defamatory. The complainant gave a lawyers notice marked as Ex. P. 4 through her advocate Mr. Asker Ali Sahib and to this Mr. Sundaresa Aiyar has sent a reply notice which the Magistrate refused to allow to be exhibited as coming within the mischief of S. 126, Evidence Act. There is no dispute however that Mr. Sundaresa Aiyar put those questions on instructions from the accused and in fact this was made out in another way, viz., the testimony of the complainant. As P.W. 1, she deposed :

"Such questions were asked by counsel on the instructions of the accused. The allegations were unfounded. I was dishonoured in public Court. I questioned the accused. They said they would have such questions to be put to me. I sent a notice to the advocate Sundaresa Ayyar.

He gave the reply notice."

The married status and the purity of the married life of this Ayesha Bee unsullied by any extra-marital adventures was proved not only through P.W. 1 but also by the Khazi of Kizhambur P.W. 3 and the husband of P.W. 1, viz., P.W. 5. The advocate for the accused was examined as P.W. 4 and his evidence proceeded to a certain extent viz., his admitting the receiving of the notice given through Mr. Asker Ali Sahib and his own reply notice. Then at that stage the Sub-Divisional Magistrate has made a note;

"Defence counsel objects to the filing. Objections upheld as the notice is in the nature of disclosing instructions by counsel which is debarred under S. 126, Evidence Act, and as it does not appear to me that it is saved by the provisos to the section in the circumstances of the case".

The examination-in-chief was not proceeded with and the lawyer got out of the box with cross-examination marked nil. In other words, the case had proceeded to the stage when a charge should have been framed and the learned Sub-Divisional Magistrate discharged the accused on the following grounds :

"These words would therefore be per se defamatory. However it has to be observed, though the charge of defamation, was based on the questions put by the counsel, there is nothing to show the precise nature and form of the questions, though, no doubt, we have the precise answers. Taking the evidence in the case, there is nothing to show that the accused instruct