Advocate Who Acted Professionally As Per Client's Instruction Cannot Be Made Criminally Liable For Defamation: Madras HC [Read Order]

An advocate who acted professionally as per the instruction of his or her client cannot be made criminally liable for offence of defamation under Section 500 unless contrary is alleged and established, the Madras High Court has observed.

In this case, a lawyer had filed an application on behalf of committee of creditors to remove the complainant and seeking appointment of another Resolution Professional under Section 27 of Insolvency and Bankruptcy Code, 2016 before the National Company Law Tribunal, Chennai. A criminal defamation complaint was filed against the lawyer and the committee of creditors alleging that the statements made in the application were defamatory. The lawyer, and the other accused approached the High Court seeking to quash the complaint filed against them.

Referring to a judgment in Ayeasha Bi Vs.Peerkhan Sahib reported in AIR 1954 Mad 741, Justice GK Ilanthiraiyan, observed:

"It is held that a lawyer is an advocate, one who speaks for another. Naturally beyond what his client tells him the lawyer has no opportunity to test the truth or falsity of the story put forward by the client. Therefore no lawyer could ever be prosecuted for defamation in regard to any instructions which he might have given to his lawyer, because it is the lawyer's business to decide whether he could properly act upon the instructions, and whatever responsibility might ensue from acting upon those instruction would be his, and no one else's, is opposed to the entire trend of decisions defining the scope and extent of the privilege conferred upon the lawyer."

The court also noted a judgment of Chhattisgarh High Court in Arun Thakur Vs. State of Chhattisgarh, in which it was held that 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 of the IPC unless contrary is alleged and established. The court said:

"The Hon'ble Supreme Court of India and also various High Courts repeatedly held that an advocate who acted professionally as per the instruction of his or her client cannot be made criminally liable for offence of defamation under Section 500 unless contrary is alleged and established."

The court then quashed the entire complaint observing that allegations made in the application filed on behalf of the members of COC are not defamatory in nature.

Case name: M.L.Ganesh vs. CA V.Venkata Siva Kumar

Case no.: Crl.O.P.Nos.4669 & 5115 of 2020

Coram: Justice GK Ilanthiraiyan

Counsel: Adv S.Arunkumar

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