EMPEROR Vs. GANGA PRASAD

JUDGEMENT

(1.) In this case one Ganga Prasad applies for the revision of the conviction under Section 500 of the Indian Penal Code and a sentence of fine and imprisonment. It appears that one Birbal was being tried for an offence under Section 379 of the Indian Penal Code. Ganga Prasad was called as a witness for the defence, and he thereupon made some remarks of a defamatory nature concerning one Banke Lal. Banke Lal then instituted the present prosecution against Ganga Prasad under Section 500 of the Indian Penal Code, and the prosecution resulted, as already stated, in the conviction of Ganga Prasad. It has been contended on behalf of Banke Lal that the words spoken by Ganga Prasad were so irrelevant and foreign to the charge against Birbal that we ought to hold that the words were not spoken by Ganga Prasad in his capacity as a witness at all, and furthermore that some of the words spoken were spoken by Ganga Prasad after he had left the witness box. As to this last allegation it is by no moans clear on the evidence what it was that Ganga Prasad said after he had left the box, and I do not think that it is possible to separate these remarks from the other remarks he made while he was in the witness box. No doubt, under certain circumstances, a Court might hold that the statements of a man made even In the witness box were not made in, the capacity of a witness, and in such a case an accused person might be convicted under Section 500 of the Indian Penal Code. The Court, however, ought in my opinion to be very slow to find that the statements of a witness made in the course of his examination or cross-examination were not made in his capacity as a witness, and it is quite clear upon the authorities that the strict relevancy of the statements to the matters in issue is not a proper test. In the present case I consider that Ganga Prasad is at least entitled in this criminal prosecution to the benefit of the doubt, and that we ought to hold that the statements he made were made by him in his capacity of a witness.

(2.) The important question remains--Is it sufficient for Ganga Prasad to answer the charge against him by simply saying: "The words I spoke were spoken by me in my capacity as a witness, "or is it necessary for him, upon proof that he spoke the words, to bring himself within one of the exceptions mentioned in Section 499 of the Indian Penal Code? Section 499 of the Indian Penal Code provides that "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." Then follow ten exceptions. Exception 9 provides as follows: "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 interests of the person making it or of any other or for the public good." There is no express exception protecting a person making defamatory statements on the sole ground that they were made in the capacity of a witness. Section 79, however, provides that" nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact, and not by reason of a mistake of law, in good faith believes himself to be justified by law in doing it." It is argued in support of the conviction that the Code clearly lays down what is defamation, and that unless a person who has defamed another can bring himself under one or more of the exceptions to Section 499 he ought to be convicted; that the Court ought not to go outside of the Code, and that if the Legislature had intended to confer absolute privilege on a witness it would have introduced a special exception to Section 499. The arguments on the other side are that the Legislature could never have intended to throw the onus on a witness of bringing himself within the exceptions, an onus which in many cases would be most difficult to discharge, and that the opening words of Section 79 "justified by law" do in fact provide the exception which is omitted from Section 499. It is absolutely clear that in England words spoken by a witness are absolutely privileged. This is so clear that it is quite unnecessary to deal with the authorities in detail.

(3.) In Dawkins V/s. Lord Rokeby (1875) L.R., 7 H.L., 744 the question arose whether this immunity applied to the statements made by a military man in the course of a military inquiry. It was held that it did, and that evidence of the falsehood and, malice of the words was immaterial and irrelevant. The House of Lords consulted the Judges and their answer was given by Kelly, C.B.: "A long series of decisions has settled that no action will lie against a witness for what he says or writes in giving evidence before a Court of Justice. This does not proceed on the ground that the occasion rebuts the prima facie presumption that words disparaging are maliciously written or spoken. If this were all, evidence of express malice would remove this ground. But the principle we apprehend is that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice. The authorities as regards witnesses in the ordinary Courts of Justice are numerous and uniform. "His Lordship then proceeds to give it as the opinion of the Judges that the same principle applies to statements made before a Court of Inquiry.