1. This is an application for revision of the appellate judgment of acquittal of the non-applicants of the offences punishable under Sections 211 and 600, Indian Penal Code.
2. The learned Additional Sessions Judge has found that the accused did not make a report against the complainant to the Sub-Inspector (P.W. 2) but they answered certain questions put to them by him during investigations and consequently they cannot, be held guilty of the offence punishable under Section 211, Indian Penal Code.
3. As regards the offences under Section 500 the t learned Judge has held that the answers in investigation are absolutely privileged and cannot be the subject-matter of the charge for defamation. The learned Judge, who has not referred to any principle or precedent, had probably in mind the rule of English common law according to which a witness in a Court of justice is absolutely privileged as to anything he may say as a witness having reference to the enquiry on which he is called as a witness. This rule of absolute privilege has not been adopted in this country. Satish Chandra v. Ram Doyal 48 Cal 388 and Shanta Bai v. Umrao Amir 50 Bom 162 ; Surajmal v. Ramnath .
4. It is true that it has been held that answers to questions put to a witness by a police officer in the course of an investigation under Section 161, Criminal P.C., are privileged and cannot be made the foundation of a charge, nor can he be made liable in an action for damages for any words spoken during such investigation. Queen Empress v. Govinda Pillar 16 Mad 235 and Methuram Das v. Jagannath Dass 28 Cal 794. Under Section 161 of the Code of 1882, under which the first case was decided, a Witness was bound to answer truly all questions put to him except such as tended to incriminate him. A refusal to answer such questions was held punishable under Section 179, Indian Penal Code. Methuram Dass v. Jagannath Dass 28 Cal 794, has failed to notice the omission of the word 'truly' from Section 161 though it was decided after the Code Of 1898. 'Govinda Pillai's case' was followed and it was held that a witness answering questions under Section 161 is entitled to the same protection as that extended to a witness in a Court of justice. The learned Judges followed the rule of English law of absolute privilege to a witness in respect of Ills evidence in a Court of law.
5. Section 132 of the Indian Evidence Act, Which relates to the privilege of a witness in answering incriminating questions provides that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer. The absolute privilege is therefore limited in a Court of law to such answers as the witness is compelled to give.
6. Under the present Criminal P.C. a police officer making an investigation under Chapter XIV Is entitled to examine orally any person supposed to be acquainted with the facts and circumstances of the case under investigation and such person is bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. On account of the omission of the word 'truly' in the section it has been held that such a witness cannot be prosecuted for giving false evidence nor can he be prosecuted for refusal to answer such questions. Queen Empress v. Sankaralinga 23 Mad 544 and Mawzanagyi v. Emperor 8 Rang 511.
7. There is considerable difference between Section 161 of the Code and Section 132 of the Indian Evidence Act. Since a witness answering questions under toe former section, is not bound to state truly, nor can he be prosecuted for refusal to answer, there is no privilege; at any rate, the privilege is not absolute. Under Clause 23 of our Letters Patent persons brought before this Court for trial in the exercise of its jurisdiction as a Court of appeal, reference, or revision, charged with any offence for which provision is made by the Indian Penal Code, shall be liable to punishment under the said Act and not otherwise. The High Court cannot ea-graft thereon exceptions derived from the common law of England or based on public policy. A defamatory statement made on oath or otherwise falls within Section 499 of the Indian Penal Code and is not absolutely privileged. Satish Chandra Chakravarti v. Ram Dayal De 48 Cal 388 . In order to escape liability for defamation the case Of tile accused must fall under the Eighth Exception to Section 499, Indian Penal Code, which says:
It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with. respect to the subject-matter of accusation.
In order to appreciate the plea of privilege it wan therefore necessary for the learned Additional Sessions Judge to come to definite findings as to that questions put to the three accused and the answers by each of them. The learned Additional Sessions Judge has also to find whether these answers were given in good faith and whether the Sub-Inspector (P.W. 2) had lawful authority over the accused or any of them with respect to the subject-matter of the accusation. If the questions put by the Sub-Inspector were not relevant to the investigation he was making, the question of privilege would not arise.
8. The learned Additional sessions Judge has thus acquitted the accused of the charge under Section 500, Indian Penal Code, under a clear misapprehension of law and without finding the facts necessary to attract the rule of absolute privilege or qualified privilege.
9. Under these circumstances the acquittal of the non-applicants under Section 500, Indian Penal Code, cannot be sustained and is set aside. The case is remanded to the Additional Sessions Judge, Bhandara, for a fresh decision of the appeal against the conviction and sentence under Section 500 with advertence to the above remarks.
10. The application is partly allowed. It to dismissed so far as it relates to the acquittal under Section 211, Indian Penal Code.