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Bai Shanta Vs. Umrao Amir Malek - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 435 of 1924
Judge
Reported in(1926)28BOMLR1
AppellantBai Shanta
RespondentUmrao Amir Malek
Excerpt:
indian penal code (act xlv of 1860), section 499-defamation-defamatory statements by witnesses in witness box-liability for prosecution-absolute privilege-exceptions to section 499-criminal procedure code (act v of 1898), section 342-statement by accused in d fence-not absolutely privileged on prosecution for defamation-indian evidence act (i of 1872), section 132- incriminating statements by witness- liability for making them-statements which a witness is compelled to make.;relevant statements made by a witness on oath or solemn affirma-tion in a judicial proceeding are not absolutely privileged, on a pro-secution for defamation under section 600 of the indian penal code, but are governed by the provisions of section 499 of the code.;similarly, relevant statements made by an accused..........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 put to him?' 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 (1920) 23 bom. l.r. 1247 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.....
Judgment:

Norman Macleod, Kt., C.J.

1. We answer the first question referred to us by the Bench in the negative, In Satish Chandra Chakravarti v. Ram Doyal De I.L.R. (1920) 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 I.L.R.1892 17 bom. 127 was wrongly decided, and that the decision in Queen-Empress v. Balkrishna Vithal I.L.R.(1893) 17 Bom. 573 should have been decided according to the opinion of Mr. Justice Telang.

2. 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.

3. 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 put to him?' 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 (1920) 23 Bom. L.R. 1247 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 be make the statement, and has been specifically compelled to do so by the Court.

4. The decisions referred to of the Allahabad High Court in Emperor v. Ganga Sahai I.L.R. (1920) All. 257 and Emperor v. Chatur Singh I.L.R. (1920) All. 92 are decisions of a single Judge.

5. We answer the second question in the negative.


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