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Mohammad Isa Vs. Nazim Husain - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1940All246
AppellantMohammad Isa
RespondentNazim Husain
Excerpt:
- - it appears to me to be quite clear that so far as this court is concerned it is well settled as a result of the full bench ruling referred to above that there is no absolute privilege and that a person making a defamatory statement in the course of a judicial proceeding can be prosecuted for defamation. but that case can have no reference to a case like the one before me. where the law clearly says that it is a condition precedent to the prosecution that a sanction shall be obtained from the local government, it is not open to any subordinate authority to override the provision of the law by saying that the offence falls under another section of the penal code and if no sanction is necessary for the prosecution under that section, the offender may be prosecuted without any sanction......them he filed complaints against chhote lal and nazim husain under section 500, i.p.c. the learned trial magistrate was of opinion that the complaints of the complainant were incompetent. according to his view, no case could be started against the two accused persons unless there was a complaint made by the judicial officer before whom the alleged defamatory statements were made. the two complaints were dismissed. the applicant filed revisions before the learned sessions judge who summarily rejected them. the applicant has now come up in revision before this court.2. two points arise for consideration in this case. the first is whether the statements made by the accused persons during the judicial proceedings are absolutely privileged and for that reason the complaints by the complainant.....
Judgment:
ORDER

Rachhpal Singh, J.

1. These are two connected revision applications which can be conveniently disposed of together. In connexion with a murder charge Chhote Lal and Nazim Husain made statements before a Magistrate. Khan Bahadur Syed Muhammad Isa, the complainant, alleged that these statements were defamatory towards him and in connexion with them he filed complaints against Chhote Lal and Nazim Husain under Section 500, I.P.C. The learned trial Magistrate was of opinion that the complaints of the complainant were incompetent. According to his view, no case could be started against the two accused persons unless there was a complaint made by the judicial officer before whom the alleged defamatory statements were made. The two complaints were dismissed. The applicant filed revisions before the learned Sessions Judge who summarily rejected them. The applicant has now come up in revision before this Court.

2. Two points arise for consideration in this case. The first is whether the statements made by the accused persons during the judicial proceedings are absolutely privileged and for that reason the complaints by the complainant were incompetent. The second is whether a complaint could be made by a private person without the sanction of the Magistrate before whom the alleged defamatory statements were made. I will at first deal with the first point. I do not think that the statements made in judicial proceedings are absolutely privileged. In Ganga Prasad v. Banke Lal (1907) 29 All 685, a Full Bench of this Court held that

the question of criminal liability of a witness for defamation for statements made in course of their depositions must be decided by what is laid down in the Indian Penal Code without regard to the state of law in England or considerations of what would be desirable in the interest of public policy and administration of justice.

3. The majority view in this Full Bench was that when a witness makes a statement which is defamatory of a third party in a judicial proceeding he can be convicted of defamation. In Bai Shanta v. Umrao Amir Malik : AIR1926Bom141 , a Full Bench of the Bombay High Court held that the statement made by a witness in judicial proceedings was not absolutely protected from being made the subject of a prosecution for defamation under Section 500, I.P.C., on the ground of public policy or exceptions derived from the common law of England, apart from the provisions of Section 499, I.P.C. In view of these two Full Bench rulings, I am of opinion that the view taken by the learned trial Magistrate is not correct. It appears to me to be quite clear that so far as this Court is concerned it is well settled as a result of the Full Bench ruling referred to above that there is no absolute privilege and that a person making a defamatory statement in the course of a judicial proceeding can be prosecuted for defamation. This view is supported by the Full Bench ruling of the Bombay High Court referred to above.

4. As regards the second question also I am of opinion that the decision of the trial Magistrate cannot be sustained. If we read the provisions of Sections 195 and 476, Criminal P.C., it will appear that there is nothing which prevents a man from making a complaint for defamation in respect of a statement made during judicial proceedings. It may be that where a false statement is made the person making the statement is liable for prosecution on two counts if the statement happens to be defamatory. On the complaint of the complainant he can be prosecuted for defamation and he can further be prosecuted under Section 211 or 193, I.P.C. So far as charges under Sections 211 and 193, I.P.C., are concerned, it is clear that no prosecution can be started unless a complaint is made by the judicial officer before whom the false statement is made. But in the matter of defamation the Magistrate on his own authority cannot take any initiative. He has no power to say that a person should be prosecuted for defamation because he has made a defamatory statement. I am not aware of any provision in the Indian criminal law under which it can be said that a party who has been defamed has to take the sanction of the Court where the defamatory statement was made before starting a prosecution for defamation. In connexion with this matter it is very necessary to take into consideration the provisions of Section 198, Criminal P.C., which enacts that:

No Court shall take cognizance of an offence falling under Chap. 19 or Chap. 21, I.P.C., or under Sections 493 to 496(both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence.

5. Section 500, I.P.C., is in Chap. 21 of that Code. It, therefore, follows that in view of the provisions of Section 198, Criminal P.C., a Magistrate is not competent to file a complaint for the prosecution of a witness for making a defamatory statement. It is the complainant alone who has been defamed who is given the sole right to file a complaint for defamation if he so chooses. The learned trial Magistrate has relied in his judgment on a ruling of this Court which is reported in Ram Nath v. Emperor : AIR1925All230 . That was a case where according to law it was essential for the prosecution to obtain sanction of the Local Government before a prosecution could be started. Where such is the case no prosecution could succeed. But that case can have no reference to a case like the one before me. Here according to law it was not at all necessary for the applicant to have obtained sanction of the Government before starting the prosecution. The learned trial Magistrate relied on the following observations made in that case:

Where the law clearly says that it is a condition precedent to the prosecution that a sanction shall be obtained from the Local Government, it is not open to any subordinate authority to override the provision of the law by saying that the offence falls under another Section of the Penal Code and if no sanction is necessary for the prosecution under that Section, the offender may be prosecuted without any sanction.

6. Here, in the present case, the matter stands on a different footing altogether. Here the law ordains under Section 198, Criminal P.C., that a complaint for defamation cannot be filed by any person except the complainant. According to Section 198, Criminal P.C., a Magistrate would be incompetent to make a complaint for defamation. So it cannot be said that the ruling relied upon by the learned trial Magistrate has any application to the case before me. The result is that I allow these applications, set aside the orders passed by the trial Magistrate and send back both the cases to the Court of the trial Magistrate through the District Magistrate with directions that the learned Magistrate should try both the cases according to law.


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