Bhole, J.
1. The petitioner, who was accused No. 1 along with his three sons, was tried for an offence punishable under Section 500, Indian Penal Code. The complainant in this case happens to be the son of the first wife of the petitioner. The complainant and his mother are living separately after the marriage of the petitioner with his second wife. The complainant was claiming by a notice addressed to the petitioner partition of his share in the ancestral property. The petitioner replied through a lawyer saying that the complainant was not his son; that his mother Anusuya had left him and that she was living an unchaste life; that he had no access to her and that therefore the complainant was not his son because he was born through sexual intercourse of his mother with some unknown person. The complainant who received the reply showed it to his father-in-law and then to his advocate. On the basis of the defamatory allegation by his father in the notice he prosecuted not only his father but also his other three step-brothers by the second wife for an offence punishable under Section 500, Indian Penal Code. The petitioner pleaded not guilty and also stated that even if it is a defamatory publication, his case would come within the Ninth Exception of Section 499, Indian Penal Code.
2. The Judicial Magistrate, Nasik Road found that under instructions from the accused to his advocate Mr. Kokate, the latter got it typewritten by a typist and that that notice was sent to the complainant. The learned Magistrate is of the view that there was imputation in the notice but did not believe the story of the complainant that he was unable to read the letter although he was educated upto 4th Marathi standard. He is of the opinion that the complainant's story that he was not literate enough to read the letter and that, therefore, he showed it to his father-in-law was concocted. Therefore, the complainant's story that he showed it to his father-in-law so that he could read it for him on the ground that he was illiterate was disbelieved. But even on the basis of this finding of fact the learned Magistrate is of the opinion that there was publication of the defamatory allegation because the advocate got it typewritten from a typist. The learned Magistrate also held that the petitioner will not be protected by the Ninth Exception of Section 499, Indian Penal Code, because the allegation was not done in good faith and that the petitioner was also not able to show that the complainant was not his son. Accordingly, therefore, he convicted the petitioner under Section 500, Indian Penal Code, and sentenced him to suffer imprisonment till the rising of the Court and also to pay a fine of Rs. 500. Petitioner's sons were acquitted. That order of conviction and sentence was challenged by the petitioner before the learned Additional Sessions Judge who agreed with the view of the Magistrate and dismissed the appeal. That order, therefore, is now challenged here. The point, therefore, that arises here for consideration is whether this order of conviction is legal and proper.
3. Now the findings of fact are as follows. The complainant claims a right of partition in the ancestral property belonging to the petitioner and his family on the ground that he is his son by the first wife. The petitioner engaged his advocate Mr. Kokate and under his instructions the advocate replied to the notice given by the complainant by a reply typed by a typist saying that he was not his son, that his mother was living an unchaste life after she left him and that therefore he is the son of an unknown person. That notice was received by the complainant. That notice was received by the complainant and the finding of fact also is that he must have read it himself as he has admittedly studied upto 4th Marathi standard. The learned Magistrate did not believe the story of the complainant that he was unable to read the letter and that therefore he went to his father-in-law to get it read. In other words, the finding of fact is that he must have read it and he must have read it himself. The learned Magistrate on these findings of fact is of the opinion that the allegations which are defamatory in character were published because the reply was type-written by the typist of the advocate at the instance of the advocate who was given instructions by the complainant. The point, therefore, that arises here for consideration is whether that is a publication of any imputation concerning the complainant.
Section 499, Indian Penal Code, is as follows:
499. Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person....
4. This section, therefore, requires the making or publication of any imputation concerning any person. Such imputation must have been made by words either spoken or intended to be read or by signs or by visible representations. Such imputation must have been made with, intention of harming or with knowledge or having reason to believe that it will harm the reputation of the person concerning whom it is made. There is no doubt that the petitioner has made some imputation concerning the complainant. The first point, however, is whether such imputations were made with an intention that they should be read. The second point is whether those imputations were published by the petitioner and yet the third point that will arise is whether the imputation was made with an intention of harming the reputation of the complainant. The important and essential point for consideration, in our case, is whether those imputations were published by the petitioner. What is publication? Making a defamatory matter known after it has been written to some person other than the person for whom it is written is a publication in its legal sense. A defamatory matter must, therefore, be communicated to some person other than the person concerning whom it is written. Communicating a defamatory matter to the person concerned only cannot be said to be a publication. The point, therefore, is whether the circumstance that the contents of notice which was got typewritten by the advocate after instructions of the complainant is a publication in its legal sense. Mr. Kane for the petitioner contends here that it is no publication at all because it was a notice in reply to the notice of the complainant, and it was sent through a lawyer and it was therefore a private and privileged communication without any publication. Mr. Kane further says that this is not a case where the notice was published in a newspaper. He, therefore, says that the petitioner has taken all due care and attention while sending the reply to notice. According to him, therefore, such a reply cannot be said to be a publication within the meaning of Section 499, Indian Penal Code.
5. I am inclined to agree with him because the advocate who sent the notice acted on behalf of his client. He got it type-written in the discharge of his duties from the typist. If, therefore, the advocate acting on behalf of his client while discharging his duties got it typewritten and sent it, can it be said to be a publication to the typist? After all communication by the petitioner to his lawyer was a privileged communication and the lawyer in the discharge of his duties got it typewritten from the typist. Such a publication to a clerk or typist, in my view, cannot be a publication to a person other than the complainant. But Mr. Tendulkar for the original complainant invites my attention to Pullman v. Hill & Co. [1891] 1 Q.B. 524 and contends here that the decision of the English Court of Appeal is in his favour. That was a case for libel and the alleged libel was contained in a letter respecting the plaintiffs, two of the members of a partnership, written on behalf of the defendants, a limited Company and sent by post in an envelope addressed to the firm. The writer did not know that there were other partners in the firm. The letter was dictated by the managing director of the defendants to a clerk, who took down the words in shorthand and then wrote them out in full by means of a type-writing machine. The letter thus written was then copied by an office-boy in a copying-press. When it reached the destination, it was in the ordinary course of business opened by a clerk of the firm and was read by two other clerks. It was held by the Court of Appeal:.that the letter must be taken to have been published both to the plaintiffs' clerks and the defendants' clerks, and that neither occasion was privileged.
Mr. Tendulkar, therefore, says that our facts and circumstances are also similar and ours is a case then of publication of a defamatory allegation. I cannot agree because that was a ease of a merchant dictating to a clerk libellous statement about a customer, which that clerk took down and gave to another in the office to copy. That was certainly a publication to the clerk and the occasion of such publication was not privileged. It does not fall within the ordinary course of business of a merchant to write such defamatory statement and it was also not reasonably necessary. The question before me, however, is of the ease of an advocate instructed by his client who receives a notice claiming a partition. More or less on similar facts the Court of appeal in Boxsius v. Goblet Freres [1894] 1 Q.B. 842 supports my view. That was a solicitor, acting on behalf of his client, who wrote and sent to the plaintiff a letter containing defamatory statements regarding her. The letter was dictated to a clerk in the office, and was copied into the letter-book by another clerk. In that action against the solicitor for libel it was held:
that the occasion was privileged, since the communication if made by the solicitor direct to the plaintiff would have been privileged, and the publication to his clerks was necessary and usual in the discharge of his duty to his client, and was made in the interest of the client.
The case Pullman v. Hill & Co, was distinguished in this case. There is also another case: Edmondson v. Birch & Co., Limited and Horner [1907] 1 K.B. 371. That was a case where a business communication containing defamatory statements concerning the plaintiff was made by the defendants, a company, to another company, on a privileged occasion, and it was held:
that the privileged occasion covered such a publication of those statements, which was therefore not actionable.
In this case also Pullman v. Hill & Co, was discussed and distinguished. I do not, therefore, think that the view taken by both the Courts below is correct. Even granting, therefore, that the petitioner had an intention of harming the reputation of the complainant, although that does not appear to be the case, the imputation in this case cannot be said to have been published at all.
6. Even if it is said to have been published, the petitioner will be protected by Exception 9 to Section 499, Indian Penal Code. Under the Ninth Exception, it is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good. Admittedly the imputation was made for the protection of the petitioner and the petitioner's family interest. I have no doubt also that he has done it in good faith because he has taken due care and attention before sending the notice through his lawyer. After all the reply was; to the claim made by the complainant. It was sent through a lawyer under 'instructions. He did not advise his lawyer to publish the notice in a newspaper. He can, therefore, very legitimately be said to have done this thing in good faith. In other words he had done it with due care and attention. In this view also, therefore, the order of conviction is not proper.
7. The result, therefore, is that the application is allowed and the order of conviction and sentence passed against the petitioner by the Court below is set aside. Fine if paid shall be refunded.