POTARAJU VENKATA REDDY Vs. EMPEROR

JUDGEMENT

(1.) The question which has been referred to us is this----"Is the statement of a person charged with an offence in answer to a question by the Court trying him What have you to say, an absolutely privileged statement so as to make him not liable to be punished for an offence under Section 499, Indian Penal Code in respect of the statement?" There can be no question that under the law of England the occasion would have been absolutely privileged. Mr. Rosario, who argued in support of the view that under the law of this country the statement was not privileged unless the prisoner could show that it was made in good faith within the meaning of the 9th exception to Section 499 of the Indian Penal Code, has conceded this. The law of England is that there are occasions when it is for the public interest that persons should not be in any way fettered in their statements; in this case the privilege is absolute and no action lies for words spoken. The occasions are (1) Parliamentary Proceedings, (2) Judicial Proceedings and (3) Naval and military affairs and the affairs of State generally. See Odgers on Libel and Slander 5th Edition, page 230.

(2.) With regard to the absolute privilege in the case of judicial proceedings under the English law, I need only refer to the leading case of Dawkins v. Lord Rokeby (1875) 7 H.L. 744 and the judgment of Lopes, L.J. in Royal Aquarium v. Parkinson (1892) 1Q.B. 450. The Lord Justice said The authorities establish beyond all question this--that neither party, witness, counsel, Jury nor Judge can be put to answer civilly or criminally for words spoken in office; that no action for libel or slander lies, whether against Judges, counsel, witnesses or parties for words written or spoken in the course of any proceeding before a court recognised by law and this though the words written or spoken were written or spoken maliciously, without any justification or excuse and from personal ill-will and anger against the person defamed."

(3.) The question we have to determine is whether this Common law doctrine of absolute privilege is part of the law of this country, or whether on the true construction of Section 499, Indian Penal Code, the law of defamation as laid down in that section excludes the application of this doctrine. The contention in support of the latter view was that the law of defamation, so far as this country was concerned, was created by Section 499 and inasmuch as that section contains no reference to this English Common law doctrine of absolute privilege, it should be inferred that it was the intention of the legislature that it should form no part of the law of this country. In my opinion, it does not necessarily follow that, because this doctrine is not expressly recognised in the section, it was the intention of the legislature to exclude its application from the law of this country. The provisions of the Indian Penal Code and also those of the Evidence Act of 1872 are mainly based upon the English law and it is to be observed that, whenever the legislature in this country intended to depart from the English law, they made their intention clear by express enactment. As regards the Evidence Act, I may refer to Section 132 and Section 167. As regards Section 499 of the Penal Code, the legislature has made it clear, by express enactment, that in certain respects they intended to depart from the English law of libel and slander. For instance, under the Penal Code, slander of a private person is a criminal offence : it is not so in England. It is not to be supposed that the framers of the Penal Code had not before their minds the doctrine of the English law with regard to the question of absolute privilege; and it seems to me that in dealing with a matter of such importance, if they had intended to exclude its application, they would have made their intention clear and would not have left it to be a matter of negative inference. Mr. Rosario argued that only a qualified privilege existed in connection with the occasion of judicial proceedings and that the plea of privilege was only open to counsel, party, witness or prisoner subject to the obligation of proving that the imputation conveyed by the defamatory statement was made in good faith within the meaning of the 9th exception to Section 499. If these were so, one would have expected to find amongst the exceptions and illustrations in Section 499 some reference to a case of qualified priviege in connection with a statement made in the course of judicial proceedings. Not only do we find no reference to a case of absolute privilege as recognised by the law of England, but we find no reference to any case of qualified privilege in connection with judicial proceedings. The inference which I should draw from this would be that it was not the intention of the legislature to exclude the application of this doctrine of the English Common law from the law of defamation in India. The exceptions would seem to have been drafted with reference to the occasions of qualified privilege as recognised by the law of England omitting all reference to the question of privilege in connection with statements made in judicial proceedings or to the other classes of absolute privilege recognised by the law of England. There may be said to be five groups of exceptions to the section, all relating to occasions as to which qualified privilege is recognised. Exception I corresponds to the plea of justification. Exceptions II, III, V and VI correspond to the plea of fair comment. On a matter of public interests exceptions VII and VIII cover the cases of censure by a lawful authority passed in good faith. Exceptions IX and X cover the cases of imputation made in good faith by a. person for the protection of his interests or for the public good and the case of caution intended for the good of the person to whom it is conveyed or for the public good. Exception IV covers the plea of fair report of public proceeding.