HEMRAJ POONAMCHAND Vs. BABULAL BHAGIRATH

JUDGEMENT

(1.) THIS is an appeal by leave under Section 417 (3) Criminal Procedure Code by the complainant from the acquittal by the Magistrate of the respondent of a charge of defamation while deposing in a Civil Suit by stating "hemraj (present complainant and uncle (mama) of the plaintiff in that suit in which the respondent was defendant) was at Barnagar but has come away after becoming insolvent there. " the ground for acquittal by the Magistrate was that the witness might have thought that he was bound to answer the question and as such he was protected by the proviso to Section 132 of the Evidence Act. However, the trend of paragraph 6 of the Magistrate's judgment is that whenever a witness answers questions in the witness box the very fact of the Court allowing the question to be put would lead to the presumption that it is relevant, and the very context would indicate that the witness is being competed to answer; thus, in effect, he grants privilege--or absolute privilege--in regard to the statement of a witness in the witness-box. The case is therefore of interest in that it calls for the examination, firstly, of the question of a witness's absolute protection from prosecution or suit for defamation for statements made in the box, the circumstances in which the benefit of the proviso to Section 132 Evidence Act may be claimed and thirdly, the manner in which a person charged with defamation by his statement in the witness-box can plead one of the exceptions mentioned in Section 499 I. P. C.

(2.) THE facts of the case are simple and common ground. The respondent was being sued by one Pannalal, who happens to be the nephew (that is, sister's son)of Hemraj. The defendant in that suit that is, the respondent, was giving evidence on his own behalf. He was being cross-examined in course of which he made the statement-''hemraj Barnagar se diwala nikal kar aya hai. Inke mama hai tab se janta hun. . . . . . " there is nothing in the evidence or the proceedings to show that the witness was unwilling to answer and was being compelled; nor has Hemraj in any manner the least connection with, the subject-matter of the suit. When the suit ended, Hemraj filed a complaint against this respondent under Section 500 I. P. C. The statement was proved by the examination of the Civil Judge and the Clerk of the Court. Naturally, the correctness of the record has not been questioned. There was no serious direct attempt to prove the truth of the statement or the applicability of any of the exceptions; but it was urged that under the proviso to Section 182 evidence Act, the respondent could not be prosecuted. This being accepted in a very general sense by the Magistrate, the respondent was acquitted.

(3.) OUR law of defamation and the privilege or immunity from action in regard to a defamatory statement has been originally derived from the law of England but has from the very beginning been enacted in unmistakable words. The English law is that a witness is absolutely protected from action for defamation in respect of statements made by him in witness-box though possibly, he could be indicated for perjury, in case the statement is false and known to be false. But even there, the statement should relate to the subject-matter of the judicial proceeding, and it is very doubtful if a statement that is altogether without any bearing on that subject-matter, if made, will be protected. We are not, however, concerned with the english law as such except that the Madras High Court has in, early cases accepted those principles. The Madras view in the Full Bench decision The Queen v. Gopal Doss, ILR 3 Mad 271 and in Manjaya v. Sesha Shetti, ILR 11 Mad 477 though followed in a number of cases has been substantially modified in the comparatively later cases in Tiruvenga Mudali v. Tripurasundari, ILR 49 Mad 728 : (AIR 1926 Mad 906) (FB) and Elavarlhi Peddabba Reddi v. Iyyala Varada Reddi, air 1929 Mad 236. The trend in Bombay also had originally been in the same direction as Madras; but in later decisions like Bai Shanta v. Umrao Amir Malik, ILR 50 Bom 162 : (AIR 1926 Bom 141) (FB), the view is that there was no absolute privilege. Calcutta has been more consistently against absolute privilege and the ruling--Haider Ali v. Abru Mia, ILR 32 Cal 756 is fairly typical of the decisions of that High Court. The majority view of the Allahabad High Court has been to the same effect. In general practically all our courts are against the principle of absolute protection of a witness. We are concerned directly with the opinion of the nagpur High Court. In Chotelal v. Phulchand, AIR 1937 Nag 198 it was held: