Bombay High Court
Bai Shanta vs Umrao Amir Malek on 5 October, 1925
Equivalent citations: AIR1926BOM141
JUDGMENT Fawcett, J.
1. The petitioner Bai Shanta, a married Brahmin woman, residing at Umreth, made a complaint against one Umrao Amir in the Court of the Second Class Magistrate, Thasra, under Section 354, Indian Penal Code, for assaulting her with intent to outrage her modesty. The accused Umrao, when examined by the Magistrate under Section 342, Criminal Procedure Code, put in a written statement, alleging that he had connexion (i.e., immoral relations) with Bai Shanta for about a year and a half. He cited witnesses, who supported this allegation in their evidence in Court. The Magistrate disbelieved the defence and convicted Umrao, sentencing him to pay a line of Rs. 151. Thereupon Bai Shanta brought a complaint in the Court of the Resident First Class Magistrate, Nadiad, against Umrao (Opponent No. 1), his four witnesses in the previous criminal case (Opponents Nos. 2, 3, 5 and 6) and Opponent No. 4, a neighbour of Umrao, under Sections 500 and 506, Indian Penal Code, i.e. for defamation and criminal intimidation. She alleges that, while the case was pending, they threatened that, unless she withdrew the complaint, they would make a charge against her that would seriously prejudice her reputation; and that as she did not comply, they contrived to defame her in the manner already mentioned. She says her reputation has grievously suffered, people laugh at her, and she fears that, until she is re-habilitated by proceedings against the accused for defamation, her husband will not resume marital relations with her.
2. The First Class Magistrate, after issuing notice to the opponents in regard to the charge under Section 500, Indian Penal Code, dismissed her complaint under Section 203, Criminal Procedure Code, holding that Umrao was protected by Exception 9 to Section 499, Indian Penal Code, and the witnesses had made relevant statements, which were protected under the view taken by some of the High Courts.
3. On revision, the Additional Sessions Judge refused to interfere with the order of the Magistrate dismissing the complaint under Section 500, Indian Penal Code, but directed him to dispose of the complaint under Section 506, Indian Penal Cede, according to law.
4. Bai Shanta now applies to this Court, asking that the Magistrate's order of dismissal be also reversed in regard to the charge under Section 500, Indian Penal Code. We have heard all the parties, except Opponent No. 2, who has not been served. The petitioner has agreed, to drop her, and her name should be struck out accordingly. Of the remaining five opponents, No. 4 is not alleged to have made any defamatory statement before the Second Class Magistrate, Thasra. We are, therefore, only concerned with Opponents Nos. 1, 3, 5 and 6. The oral and written statements of Opponent No. 1. Umrao, and the depositions of the other three opponents, have been translated. Umrao's statement was clearly relevant for the purposes of his defence, and not an unnecessary and uncalled for attack on the person defamed, of the kind referred to in Dinshaji Edalji v. Jehangir A.I.R. 1922 Bom. 381 and Haidar Ali v. Abru Mia [1905] 32 Cal. 756, so as to take such statement outside rulings like those in Queen-Empress v. Babaji [1892] 17 Bom. 127 and Queen-Empress v. Balkrishna Vithal [1893] 17 Bom. 573. The other three have made direct relevant statements supporting Umrao's allegation against the petitioner. The question, therefore, arises whether we should follow the view that a party or a witness is absolutely protected from prosecution for defamation, apart from the provisions of the Indian Penal Code on the subject (as has been held by the two lower Courts) or the view that the provisions of the Code must be followed and the Court cannot engraft thereon exceptions derived from the Common Law of England or based on public policy.
5. It is unnecessary to go into a detailed discussion of the case-law on the subject. A full examination of it will be found in the judgment of Mookerjee, Acting, C.J., in Satish Chandra Chakravarti v. Ram Dayal De [1920] 48 Cal. 388. As regards the case of witnesses like Opponents Nos. 3, 5 and 6, we could of course follow the view taken in the two Bombay cases already mentioned, although personally I prefer the contrary view taken by Mookerjee, J. But our attention has been drawn to the fact that in Criminal Application for Revision No. 336 of 1907, Chandavarkar and Knight, JJ., referred to a Full Bench the question whether statements made by a witness in a judicial proceeding render him liable to prosecution for defamation under Section 499, Indian Penal Code. The referring judgment is reproduced in a foot-note at p. 1087 of Ratanlal's "Law of Crimes," 9th Ed. It refers to the doubts expressed by other Judges of this Court as to the soundness of the view taken in Queen-Empress v. Babaji [1892] 17 Bom. 127 and Queen-Empress v. Balkrishna Vithal [1893] 17 Bom. 573 in favour of the absolute privilege of a witness, as regards prosecution under Section 500, Indian Penal Code. I believe I am correct in saying that that view has; not been taken elsewhere in India, except in Madras. The reference to the Pull Bench in 1907 fell through; owing to the parties having compounded the case before the reference came on for hearing, In the circumstances I think, a similar reference should be, made in the present case.
6. The question has been raised before us-whether in any case the proviso to Section 132, of the Indian Evidence Act does not protect Opponents Nos. 2, 5 and 6 from prosecution under Section 500, Indian Penal Code. This enactment only protects are answer to a question which a witness is "compelled" to give. In Emperor v. Chatur Singh [1920] 43 All. 92 it was held by Tudball, J., that an answer given by a witness in a criminal case on oath to a question put to him either by the Court or by counsel on either side especially when the question is on a point, which is relevant to, the case, is within this protection, whether or not the witness has objected to the question asked him. A similar view was taken by Walsh, J., in Emperor y. Ganga Sahai [1920] 42 All. 257. On the order hand in Queen v. Gopal Doss [1881] 3 Mad. 271 (F.B.); Queen-Empress v. Moss [1893] 16 All. 88; and Kallu v. Sital [1918] 40 All. 271; it was held that to get the protection afforded by Section 132 of the Indian Evidence Act, the witness must show that he asked to be excused from answering the question and the Court obliged him to answer it. This view was adopted by a majority in Queen-Empress v. Ganu Sonba [1888] 12 Bom. 440 as also by Shah, J., and Hay ward, J., in Emperor v. Gunna . But having regard to the difference of judicial opinion on the point, I think it should also be referred to the Pull Bench for specific decision.
7. As regards an accused person like Opponent No. 1, he cannot be prosecuted for giving false evidence in respect of his answers to the Court under Section 342, Sub-section (2) and (4); so the argument based on the liability of a complainant or witness to such punishment does not apply. In Nathji Muleshver v. Lalbhai Ravidat [1889] 14 Bom. 97 the Court left open the question of the liability of a party to a judicial proceeding to criminal prosecution for defamation. The ruling in Emperor v. Esufalli Abdul Hussein [1918] 20 Bom. L.R. 601 does not touch the question of absolute privilege, apart from the protection afforded by the exceptions to Section 499, Indian Penal Code. There appears to be no direct ruling of this Court on the subject, and it is doubtful how far the view taken in Queen-Empress v. Babaji [1892] 17 Bom. 127 and Queen-Empress v. Balkrishna Vithal [1893] 17 Bom. 573 should be held applicable to an accused person. Some of the arguments are equally applicable, while others are not. There is also a difference of judicial authority on the point. The Madars High Court have held in In re Venkata Reddy [1912] 36 Mad. 216, that the statement of an accused person under 8. 342, Criminal Procedure Code, is absolutely privileged. the Calcutta High Court in Satish Chandra Ghakravarti v. Ram Dayal De [1920] 48 Cal. 388 have held the contrary the Allahabad High Court and the former Chief Courts of the Punjab and Lower Burma seem to have taken the same view as the Calcutta High Court : See the cases cited in foot-notes 9 and 10 at p. 1090 and foot-note 1 at p. 1091 of Ratanlal's "Law of Crimes," 9th Ed. the latter decisions are opposed to the reasoning on which Queen-Empress v. Babaji [1892] 17 Bom. 127 and Queen-Empress v. Balkrishna Vithal [1893] 17 Bom. 573 are based. I think, therefore this point should also be referred to the Pull Bench. 1 would accordingly refer the following questions:
(1) Whether relevant statements made by a witness on oath or solemn affirmation in a judicial proceeding are absolutely protected from being made the subject of a prosecution for defamation under Section 500, Indian Penal Code, on grounds of public policy or exceptions derived from the Common Law of England, apart from the provisions of Section 499, Indian Penal Code?
(2) Whether such statements can be held to be protected by the proviso to Section 132 of the Indian Evidence Act, in cases where the witness has not objected to answering the question put to him and been obliged by the Court in spite of his objection to answer it?
(3) Whether relevant statements made by an accused person under Section 342, Criminal Procedure Code, or contained in a written statement filed by him "with the Court's permission, are absolutely protected from being the subject of a prosecution for defamation under Section 500, Indian Penal Code, on the grounds, etc., referred to in question (1)?
Madgavkar, J.
8. I agree.
JUDGMENT Macleod, C.J.
9. We answer the first question referred to us by the Bench in the negative. In Satish Chandra Chakravarti v. Ram Dayal De [1920] 48 Cal. 388, it was held by a Full Bench of the Calcutta High Court "that a defamatory statement, on oath or otherwise, by a party to a judicial proceeding falls within Section 499 of the Indian Penal Code, and is not absolutely privileged. Under Clause 30 of the Letters Patent, 1865, the provisions of such Code must be followed, and the Court cannot engraft thereon exceptions derived from the Common Law of England or based on public policy." Every case on the subject has been most exhaustively dealt with by the learned Acting. Chief Justice and it would be superfluous for us to add anything to what has been said in that case. We think accordingly that the decision in Queen-Empress v. Babaji [1892] 17 Bom. 127 was wrongly decided, and that the decision in Queen-Empress v. Balkrishna Vithal [1893] 17 Bom. 573 should, have been decided according to the opinion of Mr. Justice Telang.
10. We also think that the third question should also be answered in the negative, as the decision I have already referred to applies to this question also. There, is nothing in Section 342 of the Criminal Procedure Code which gives an accused person an absolute privilege as regards defamatory statements made by him in his examination.
11. With regard to the second question : we think that the words at the end of the question "and been obliged by the Court in spite of his objection to answer it" must have been put in by inadvertence, as the question propounded for our opinion should be whether relevant statements made by a witness on oath or solemn affirmation in a judicial proceeding can be held to be protected by the proviso to Section 132 of the Indian Evidence Act, in the cases where the witness has not objected to answering the question?" It was hardly necessary to refer that question to a Full Bench, as there is no decision of this Court that such statements can be protected where the witness has not objected to answering them. On the contrary it was decided in Emperor v. Cunna that, unless a person objects to any question the answer to which is likely to criminate him, he cannot be said to have been compelled to give such answer within the meaning of the proviso. On page 1271, Mr. Justice Hayward said :
If a man voluntarily makes an incriminating statement, he must take the consequences for it. He can only plead protection if he has specifically declined to make the statement, and has been specifically compelled to do so by the Court.
12. The decisions referred to of the Allahabad High Court in Emperor v. Ganga Sahai [1920] 42 All. 257 and Emperor v. Ghatur Singh [1920] 43 All. 92 are decisions of a single Judge.
13. We answer the second question in the negative.