1. In this case a man has been charged under Section 500 of the Indian Penal Code and ordered to pay a fine of lie. 250 for an answer given by him on oath in a civil case. The fine was reduced by the Sessions Judge to Rs. 100. The applicant being still dissatisfied has applied to this Court to set aside the order on the ground that no offence has been committed.
2. The circumstances of the case are possibly exceptional. It appears that at an adjourned hearing of a suit the witness, who was a mortgagee, and was suing his mortgagor for his money, was asked by the Munsif who was trying the case why he wanted back his money. His answer was that he did not wish to keep the land of the present complainant, the then defendant, under mortgage, because he was a badmash and a thief, Of course that means that he thought him so.
3. It appears that this answer was given to the Munsif at an adjourned hearing after the witness had left the witness-box. So far as good faith is concerned that is the strongest possible point in favour of the applicant because it shows that he had already gone through the witness-box and given his evidence without making any gratuitous or malicious attack upon the mortgagor, and it was only in answer to a question by the Munsif at the eleventh hour and to satisfy a perfectly natural but not strictly relevant curiosity of the Munsif that the answer came to be given in court. A suggestion is made that when a witness has once been in the box and has left it, and at any late stage of the proceeding is asked some supplementary question by the Judge, he is no longer a witness, or the proceeding is something different from the ordinary legal proceeding, I regard this contention as hardly worth discussion. When a witness is once sworn and afterwards re-called he must behave himself in the same way as if he were giving evidence in the box for the first time at the commencement of the trial, No change has taken place by adjournment, or by his leaving the box, which relieves him from any obligation to speak the truth and to treat the court with respect. Were it not for one or two authorities which have been mentioned to me I should hold without the slightest hesitation that a witness was compelled to answer such a question asked him by the Judge within the meaning of Section 132 of the Indian Evidence Act. The two cases which raise any difficulty are the case of Queen Empress v. Moss (1894) I.L.R. l6 All. 88 and the recent decision of my brother Piggott in Kallu v. Sital (1918) I.L.R. 40 All. 271. I have not examined the circumstances under which the Chief Justice construed the section in the former case, which after all was not a decision ex cathedra upon this point at all, but was merely a ruling obiter on the admissibility of certain evidence, and I do not presume to express any opinion as to the correctness of that decision. I do think, however, that in the course of the decision and in the head-note a too narrow interpretation has been put upon the word 'compelled' in Section 132. The view there suggested is that ' compelled ' can only mean compelled by an order of the court expressly made upon a claim put forward by the witness to be excused from answering. The difficulty about accepting that view is that, for example, in the case of an experienced lawyer acquainted with the section and with the procedure of courts of law, it may well be that, knowing that his reason was one which was bound to be rejected, he would think it waste of time and not unlikely to irritate the court to take an objection which was bound to fail, and that he might answer a question which, if he had refused to answer, the court would have told him he must answer. In my view an experienced lawyer, answering a question which, if it were not for the section, he might refuse to answer, is just as much compelled to answer it as if he had taken an objection and was over-ruled. Ho knows that he must answer it and he knows that, he has no good ground for refusing. He is therefore in my view compelled. I think a witness who is not trained 'in the procedure of the law and probably knows nothing of these fine points but who comes into the box, whether or not with a desire to tell truth, at any rate with a very natural determination to pay respect to the court and to answer the Judge's questions, is compelled ' by the situation in which he finds himself and the force of circumstances, and indeed by the rules of ordinary decency and the respect which ho owes to the court. I now turn to the decision in Kallu v. Sital (1918) I.L.R. 40 All. 271, in which my brother Piggott applied the principle laid down in the case of Queen-Empress v. Moss (1894) I.L.R. 16 All. 88 to the facts of the case which he was deciding, but in the following passage he, in my opinion, recognized that cases must arise in which the courts would be compelled to hold that the witness was placed under compulsion by his appearance in the box. I accept this view, which cannot be better expressed than in the passage which I adopt from my brother Piggott's judgment: Obviously no form of words can be prescribed in which this claim is to be made, and conceive that cases may arise in which the courts will be compelled to hold that the olaim has been made by implication or that the witness was placed under practical compulsion to answer certain questions by the mere fact of his appearance in the witness-box.' I hold that this witness was compelled to answer the question which the Munaif put to him and that any proceedings for defamation in respect to the answer are prohibited by Section 132. The whole proceeding against him for defamation is misconceived and must be quashed. I admit the revision and quash all the orders made against him. The fine, if paid, must be refunded.