1. This is an application in revision against the conviction of the petitioner on a charge of defamation.
2. The complainant filed a complaint against the petitioner for having called him a rogue before the police on the 5th of July 1917. The defamatory matter referred to in the charge framed against the accused is that 'the complainant was a rogue and had swindled a relative out of Rs. 1,000.' For the purposes of this case the charge should have been confined to the allegation in the complaint, and in the evidence of the complainant and his son. Taking the charge as restricted in that manner, we have to consider whether the conviction of the accused is proper.
3. It appears that the accused had made an application to the police against one Allibhai to prevent a breach of the peace, and Allibhai had made a similar application to the police against the accused and some others. It was in connection with these applications that the parties were before the police on the 5th of July. Allibhai at that time mentioned the complainant as one of his witnesses and with reference to that the accused is alleged to have stated to the police that the proposed witness was a rogue.
4. The expression used is undoubtedly defamatory and unless the case is covered by any of the exceptions the conviction would be justified. Having regard to the fact that an inquiry was being made by the police with reference to the application of the accused and the counter-application of his opponent Allibhai and that the expression was used in the course of that inquiry, it seems to me that the 9th exception to Section 499 would apply to this case. The statement was made apparently for the protection of his own interest and when his application was under investigation by the police. In such a case reasonable freedom and latitude must be allowed to the party who has to put his case before the authorities. The evidence of the Deputy Superintendent of Police shows that the parties were making allegations against each other and that he allowed them to make such allegations in order that he might get some important information. Besides the accused used the expression with reference to a man, who was convicted and fined on the complaint of the accused about four months ago. Under the circumstances the expression must be held to have been used by the accused in good faith.
5. We have not had the advantage of hearing any argument in support of the conviction in this case ; but on a consideration of the evidence, I am satisfied that this conviction cannot be sustained.
6. I would, therefore, set aside the conviction and sentence and direct the fine, if paid, to be refunded.
7. I entirely agree. I think that the fact that the statement, otherwise defamatory, was made in good faith is corroborated by the fact that the complainant in the present case had been convicted and fined for insult to the accused. I also think accused's remark about him was made in the protection of his own interests.