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Dinshaji Edalji Karkaria Vs. Jehangir Cowasji Mistri - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 61 of 1922
Judge
Reported in(1922)24BOMLR400
AppellantDinshaji Edalji Karkaria
RespondentJehangir Cowasji Mistri
DispositionApplication rejected
Excerpt:
.....the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - 50. he bad filed a complaint in the court of the presidency magistrate at girgaon against the opponent jehangir, his wife hirabai, his servant jiva rupa, and his friend jamshetji for the offence of insult and assault. when the case came on before the magistrate, the accused's pleader said that he was going to prove that the words complained of were true in substance and in fact. that exception can only afford protection when the defamatory statement has been made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. it is clear,..........the only question was whether he was protected by exception 9 to section 499 of the indian penal code. that exception can only afford protection when the defamatory statement has been made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. it is clear, therefore, that the accused cannot possibly bring himself within that exception, because it cannot be said that the statement he made was made in good faith for the protection of himself or of any other person or for the public good.3. then it is suggested that we should disregard the 9th exception to section 499 of the indian penal code and consider whether the occasion on which the statement was made was not absolutely privileged. no doubt it has been held by this.....
Judgment:

Norman Macleod, C.J.

1. The present applicant has been convicted by the Additional Presidency Magistrate under Section 500 of the Indian Penal Code and directed to pay a fine of Rs. 50. He bad filed a complaint in the Court of the Presidency Magistrate at Girgaon against the opponent Jehangir, his wife Hirabai, his servant Jiva Rupa, and his friend Jamshetji for the offence of insult and assault. Jiva Rupa was convicted on his own plea of guilty, while the other persons were discharged. In the course of the hearing, the Magistrate asked the complainant to go into the witness box and state his grievance, and also asked the opponent to do likewise in order that he might see whether a settlement of the case could be arrived at. The opponent made a statement first. Then when the complainant was making his statement on invitation by the Magistrate, in answer to a question from the Bench, he said 'that Jamshetji was kept by Hirabai', the innuendo being that there were immoral relations between Jamshetji and Hirabai. Accordingly the opponent, after the proceedings were finished, filed a complaint against the original complainant for defamation. When the case came on before the Magistrate, the accused's pleader said that he was going to prove that the words complained of were true in substance and in fact. He was unable to prove that.

2. Then the line of defence was altered, and the accused tried to make out that he had never used the words. But the Magistrate found on the evidence that the accused had made a defamatory statement; and the only question was whether he was protected by Exception 9 to Section 499 of the Indian Penal Code. That Exception can only afford protection when the defamatory statement has been made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. It is clear, therefore, that the accused cannot possibly bring himself within that Exception, because it cannot be said that the statement he made was made in good faith for the protection of himself or of any other person or for the public good.

3. Then it is suggested that we should disregard the 9th Exception to Section 499 of the Indian Penal Code and consider whether the occasion on which the statement was made was not absolutely privileged. No doubt it has been held by this Court in Queen-Emprees v. Babaji I.L.R. (1892) 17 Bom. 127 and Queen-Empress v. Balkrishna Vithal I.L.R. (1893) 17 Bom. 573 that a witness cannot be prosecuted for defamation in respect of statements made by him when giving evidence in a judicial proceeding, although in the latter case Telang J. was of a contrary opinion but was constrained to follow the decision in the former case. I do not, however, think that the protection which may be given upon principles of public policy to a witness can be given to a complainant who when asked by the Magistrate to state his grievance deliberately makes a defamatory statement without the slightest justification. In my opinion the provisions of the Indian Penal Code are strictly applicable to this case so that we cannot say that under the law prevailing, the occasion was absolutely privileged, or that the accused was at liberty to make any defamatory statement he chose with regard to the opponents who were before the Court. The conviction, therefore, was right and there is no reason to interfere in revision. The application is, therefore, rejected.


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