1. In this case one Ganga Prasad applies for the revision of the conviction under Section 500 of the Penal Code and a sentence of fine and imprisonment. It appears that one Birbal was being tried for an offence under Section 379 of the Indian Penal Code. Ganga Prasad was called as a witness for the defence, and he thereupon made some remarks of a defamatory nature concerning one Banke Lal. Banke Lal then instituted the present prosecution against Ganga Prasad under Section 500 of the Indian Penal Code, and the prosecution resulted, as already stated, in the conviction of Ganga Prasad. It has been contended on behalf of Banke Lal that the words spoken by Ganga Prasad were so irrelevant and foreign to the charge against Birbal that we ought to hold that the words were not spoken by Ganga Prasad in his capacity as a witness at all, and furthermore that some of the words spoken were spoken by Ganga Prasad after he had left the witness box. As to this last allegation it is by no moans clear on the evidence what it was that Ganga Prasad said after he had left the box, and I do not think that it is possible to separate these remarks from the other remarks he made while he was in the witness box. No doubt, under certain circumstances, a Court might hold that the statements of a man made even In the witness box were not made in, the capacity of a witness, and in such a case an accused person might be convicted under Section 500 of the Indian Penal Code. The Court, however, ought in my opinion to be very slow to find that the statements of a witness made in the course of his examination or cross-examination were not made in his capacity as a witness, and it is quite clear upon the authorities that the strict relevancy of the statements to the matters in issue is not a proper test. In the present case I consider that Ganga Prasad is at least entitled in this criminal prosecution to the benefit of the doubt, and that we ought to hold that the statements he made were made by him in his capacity of a witness.
2. The important question remains--Is it sufficient for Ganga Prasad to answer the charge against him by simply saying: 'The words I spoke were spoken by me in my capacity as a witness, 'or is it necessary for him, upon proof that he spoke the words, to bring himself within one of the exceptions mentioned in Section 499 of the Indian Penal Code? Section 499 of the Indian Penal Code provides that 'whoever by words either spoken or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.' Then follow ten exceptions. Exception 9 provides as follows: 'It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it or of any other or for the public good.' There is no express exception protecting a person making defamatory statements on the sole ground that they were made in the capacity of a witness. Section 79, however, provides that' nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact, and not by reason of a mistake of law, in good faith believes himself to be justified by law in doing it.' It is argued in support of the conviction that the Code clearly lays down what is defamation, and that unless a person who has defamed another can bring himself under one or more of the exceptions to Section 499 he ought to be convicted; that the Court ought not to go outside of the Code, and that if the Legislature had intended to confer absolute privilege on a witness it would have introduced a special exception to Section 499. The arguments on the other side are that the Legislature could never have intended to throw the onus on a witness of bringing himself within the exceptions, an onus which in many cases would be most difficult to discharge, and that the opening words of Section 79 'justified by law' do in fact provide the exception which is omitted from Section 499. It is absolutely clear that in England words spoken by a witness are absolutely privileged. This is so clear that it is quite unnecessary to deal with the authorities in detail.
3. In Dawkins v. Lord Rokeby (1875) L.R., 7 H.L., 744 the question arose whether this immunity applied to the statements made by a military man in the course of a military inquiry. It was held that it did, and that evidence of the falsehood and, malice of the words was immaterial and irrelevant. The House of Lords consulted the Judges and their answer was given by Kelly, C.B.: 'A long series of decisions has settled that no action will lie against a witness for what he says or writes in giving evidence before a Court of Justice. This does not proceed on the ground that the occasion rebuts the prima facie presumption that words disparaging are maliciously written or spoken. If this were all, evidence of express malice would remove this ground. But the principle we apprehend is that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice. The authorities as regards witnesses in the ordinary Courts of Justice are numerous and uniform. 'His Lordship then proceeds to give it as the opinion of the Judges that the same principle applies to statements made before a Court of Inquiry.
4. Cairns says: 'Now, my Lords, adopting the expressions of the learned Judges with regard to what I take to be the settled law as to the protection of witnesses in judicial proceedings, I certainly am of opinion that upon all principles, and certainly upon all considerations of convenience and of public policy, the same protection which is extended to a witness in a judicial proceeding who has been examined on oath ought to be extended and must be extended to a man who is called before a Court of Inquiry of this kind for the purpose of testifying therein in a matter of military discipline connected with the army.'
5. Lord Penzance says: 'I also agree in the view which has been stated, but I wish to say one word on the supposed hardship of the law which is brought into question by this appeal. It is said that a statement of a fact of a libellous nature which is palpably untrue, known to be untrue by him who made it and dictated by malice, ought to be the subject of a civil remedy though made in the course of a purely military inquiry. This mode of stating the question assumes the untruth and assumes the malice. If by any process of demonstration free from the defects of human judgment the untruth and malice could be set above and beyond all question of doubt, there might be ground for contending that the law of the land should give damages to the injured man. But this is not the, state of things under which this question of law has to be determined. Whether the statements were in fact untrue and whether they were dictated by malice, are, and always will be open questions, upon which opinions may differ, and which can only be resolved by the exercise of human judgment, and the real question is whether it is proper on grounds of public policy to remit such questions to the judgment of the jury. The reasons against doing so are simple and obvious. A witness may be utterly free from malice and may yet in the eyes of a jury be open to that imputation, or again the witness may be cleared by the jury of the imputation and may yet have to encounter the expenses and distress of harassing litigation. With such possibilities hanging over his head a witness cannot be expected to speak with that free and open mind which the administration of justice requires. These considerations have long since led to the legal doctrine that a witness in the Courts of Law is free from any action.'
6. The decision I have just referred to shows clearly the well recognized state of, the law in England. In the case of Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry (1873) 11 B.L.R., 821 the question arose as to the liability in India of a witness to be sued for damages in respect of evidence given in the course of a judicial proceeding. At page 328 their Lordships gay: 'This action has been called a suit to recover damages for defamation of character. Their Lordships are of opinion with the High Court that if it had been strictly speaking such an action it could not have been maintained; for they agree with that Court that witnesses cannot be sued in a Civil Court for damages in respect of evidence given by them in a judicial proceeding. Their Lordships hold this maxim, which certainly has been recognized by all the Courts of this country, to be one based upon principles of public policy. The ground of it is this--that it concerns the public and the administration of justice that witnesses giving their evidence on oath in a Court of justice should not have before their eyes the fear of being harassed by suits for damages, but that the only penalty which they should incur if they give evidence falsely should be an indictment for perjury.'
7. It is true that these remarks of their Lordships had reference to a civil suit, but it is abundantly clear that every reason for the protection of a witness against a civil suit for defamation as a consequence of his having given his evidence applies a fortiori to protection against a criminal prosecution for defamation, and more especially in this country. Civil suits for defamation in India must, I think, to some extent at least, be based upon, the fact that the Penal Code makes the speaking of defamatory words illegal. The very question involved in this application came before the High Court of Calcutta in the case of Woolfun Bibi v. Jesarat Sheikh (1890) I.L.R., 27 Calc., 262 and the Court consisting of Mr. Justice Sale and Sir John Stanley, then Mr. Justice Stanley, set aside the conviction, holding that the defamatory statements were made by the accused in the course of their evidence as witnesses in a Court of Justice.
8. The authorities will be found collected in the report in this case. There is no binding decision of this High Court, although there are some dicta contrary to the view I take to be found in the case of Abdul Hakim v. Tej Chandar Mukerji (1881) I.L.R., 3 All., 815 and the case of Isuri Prasad Singh v. Umrao Singh (1900) I.L.R., 22 All., 284. The question is not free from difficulty, but I consider that in principle it is ruled by the decision of the Privy Council in the case of Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry. It would be simply disastrous to the administration of justice in this country if a prosecution could be instituted against every witness who gave evidence in a court of justice for defamation. In proper cases with the sanction of the Court a prosecution can be instituted against a witness for giving false evidence. It is hardly conceivable that the law which provides for the sanction of the Court being obtained as a condition precedent to the institution of a prosecution against a witness for giving false evidence would, permit a prosecution for defamation without any such sanction. I would allow the application.
Knox, Acting, C.J.
9. The facts found, and the facts which I am prepared to accept, are that the petitioner was witness in this trial of one Birbal for theft; He was cited as a witness for the defence, and when asked what he know about Birbal's case he replied that he knew nothing. He added that he knew that Birbal had stolen his watch eight years previously, and that he had had to give Rs. 10 to one Banke Lal, whom ho pointed out as one of the persons present in Court, before he got the watch back. If Banke Lal's house were searched thousands of rupees worth of stolen property would be found in it.
10. It is also found that Banke Lal is a respectable zamindar drug contractor for the Moradabad district, and pays Rs. 400 as income tax.
11. Banke Lal prosecuted Ganga for defamation. He has been convicted and the sentence confirmed on appeal. He now claims that the words having been spoken by him while in the witness box are absolutely privileged and asks that the conviction and sentence be set aside.
12. I agree with my learned brother that in the present case we ought to hold that the statements which Ganga Prasad made were made by him in his capacity as a witness, but I regret much that I find myself unable to agree with him that the question which we have to consider is ruled in principle by the decision of the Privy Council in the case of Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry (1872) 11 B.L.R., 321.
13. The decision of their Lordships is entitled to great weight and respect, and had it been given on a matter in issue before them should have followed it unhesitatingly; but I find that their Lordships themselves say the question did not arise for consideration and I can find no reference in the judgment to the Penal Code. Moreover, the Indian Evidence Act had not, when this judgment was passed, been, consolidated. I am therefore forced to consider the question virtually as res integra and in the light of the laws which govern offences and evidence in India at the present time. At the game time I accept the words of their Lordships as giving a complete and accurate account of what the law in England is on the subject.
14. The original judgment of the Calcutta High Court which was considered by their Lordships in appeal is to be found in 5 W.R., Cr. R., 134, and a perusal of the judgment will make it evident that the question which we have now to consider did not arise in that case.
15. The suit was a suit for damages on account of the disgrace to which one Gunnesh Dutt alleged he had been exposed by a false prosecution, in which his life and liberty had been put in danger at the instance of Mugneeram and others, who had been put forward by the prosecution as Crown witnesses at the original trial. In the course of their judgment the learned judges stated: 'Witnesses giving evidence judicially cannot be sued in a Civil Court for damages, though they certainly are liable to be punished is a Criminal Court for any false and malicious statement that they may make prejudicial to the character or life or liberty of any person.'
16. These are very general and safe observations and they leave the conclusion open that a witness is liable to be punished in a Criminal Court for any false (i.e., perjury) and malicious (i.e., defamatory) statement he may make prejudicial to the character, &c.;, of any person.
17. In commenting upon this passage their Lordships of the Privy Council observed:
18. 'This action has been called a suit to recover damages for defamation of character. Their Lordships are of opinion with the High Court, that if it had been strictly speaking such an action, it could not have been maintained, for they agree with that Court that witnesses cannot be sued in a Civil Court for damages in respect of evidence given by them upon oath in a judicial proceeding. Their Lordships hold this maxim, which certainly has been recognised by all the Courts of this country, to be one based upon principles of public policy. The ground of it is this--that it concerns the public and the administration of justice that witnesses giving their evidence on oath in a Court of Justice should not have before their eyes the fear of being harassed, by suit for damages; but that the only penalty which they should incur, if they give evidence falsely, should be an indictment for perjury. The precise question now raised did not then arise for decision.
19. At the time when this trial was held in 1866 the law of evidence in India had not been codified. It has now been codified, and it appears to me that since the Code was enacted, the question is one which has to be decided by the Indian Penal Code and by the Indian Evidence Act of 1872, and not by any maxim, however excellent that maxim may be, which has been universally recognised in England, but has not obtained universal recognition in this country, unless indeed it can be shown beyond room for reasonable doubt that the, question was never considered in either Code.
20. It is true that neither Code in so many words says that a witness is absolutely privileged or is not privileged as to any statement which he may make in the witness box, but the very fact that no direct mention of or indirect allusion to such a privilege is to be found in either Code satisfies me that the Indian Law did not intend to recognize the existence of such a privilege. 'Expressum facit cessare tacitum' is a maxim that cannot be overlooked in construing Statutes whether English or Indian.
21. The Indian Penal Code in making defamation a criminal offence was creating an offence which was not till then an offence in India. The caution with which the offence was placed among the offences in the Indian Penal Code is evident from the four explanations and the ten special exceptions or provisoes with which it was limited and circumscribed. There are also the general exceptions contained in Chapter IV of the Code, which, when and where they can be proved to exist, take an act out of the category of offences. It is difficult to conceive that a maxim, which, as their Lordships says, 'certainly has been recognized by all the Courts in England to be one based upon principles of public policy,' could have been absent from the minds of the framers of the Code, when they were considering this new offence they were creating. They could easily have provided for it had they intended to make it part of the law among the various exceptions contained in the Code. Sections 77 and 79 and the exceptions to Section 499, if I may use the expression, just grazed the point; indeed the latter may from one point of view be said to entirely provide for it, with one exception, and this exception is one created, not by the Indian Penal Code but by the Indian Evidence Act, 1872. The ninth exception is a very wide one, and if good faith might be presumed would cover the case now before us.
22. The real difficulty in recognizing this privilege appears to me to lie in Section 105 of the Indian Evidence Act, which compels a Criminal Court to presume the absence of all circumstances bringing a case within any of the general exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same Code, and lays the burden of proving the existence of such circumstances upon the person accused of the offence. But for this section so heavy a burden of proof would lie upon the prosecution that prosecutions of a witness for defamatory matter would be abortive.
23. The genesis of Section 105 is interesting and seems to me throws some light upon the question now raised. The rule of evidence that prevailed in India on this point when the Indian Penal Code was under consideration is formulated by Mr. Norton in his Law of Evidence applicable to the Courts of the East India Company, 2nd Edn., 1859, Section 592, in the following words: 'The technical rule is this; when a Statute in the enacting clause contains an exception and fixes a penalty, then the party seeking to criminate another under that Statute is bound to show that the case does not fall within the exception: but when there is no exception within the enacting clause, but in another distinct and separate clause, or even if it be in the same section, but be not incorporated with the enacting clause by words of reference, the onus probandi is shifted. It is not then necessary for the prosecutor to do more than show that the party whom he arraigns has been guilty of the crime in the enacting clause; and it is for the accused to show that the independent exceptive clause takes his case out of the danger of the law.'
24. The Muhammadan Law, which awing to the original constitution of Criminal Courts in India had much influence in such Courts until replaced by Statutes, was much more simple and direct, but it was to the same effect. According to it when any special plea was raised by a defendant the onus probandi rested upon him (see Hukeem Wahid Ali Khan v. Khan Beebee (1821) 3 S.D.A., Rep., 102.
25. Act No. II of 1855 did not attempt to deal with the burden of proof; but in the Criminal Procedure Code of 1861, which came into force pari passu with the Indian Penal Code, it was provided as follows:
235. It shall not be necessary to allege in the charge any circumstances for the purpose of showing that the case does not come nor shall it be necessary to allege that the case does not come, within any of the General Exceptions contained in Chapter IV of the Indian Penal Code, but every charge shall be understood to assume the absence of all such circumstances.
236. It shall not be necessary at the trial, on the part of the prosecutor, to prove the absence of such circumstances in the first instance; but the accused person shall be entitled to give evidence of the existence of any such circumstances, and evidence in disproof thereof may then be given on behalf of the prosecutor.
237. When the section referred to in the charge contains an exception, not being one of such General Exceptions, the charge shall not be understood to assume the absence of circumstances constituting such exception so contained in the section, without a distinct denial of the existence of such circumstances.
26. This was the law for Mofussil Courts; but Act No. XVII of 1862, which was passed to control the procedure for Her Majesty's Supremo Courts of Judicature re-enacted the provisions just cited and made this very important addition (section 27):
In proving the existence of circumstances as a defence under the 2nd, 3rd, 5th, 7th, 8th, 9th, or 10th Exception to Section 499 of the Indian Penal Code, good faith shall be presumed unless the contrary appear.
27. Section 27 was not repealed by Act No. I of 1872, nor even by Act No. X of 1875. It continued to be law until Act No. X of 1882 was passed. In the mean while Act No. X of 1872 had swept away, so far as Mofussil Courts were concerned, the provisions contained in Section, 235, 236 and 237 of Act No. XXV of 1861, and Act No. X of 1882 made the procedure for the framing of charges uniform both in High Court and in Criminal Courts subordinate to them. But it is evident that the provision container the Section 105 found little favour at first especially with the Presidency High Courts.
28. In enacting Section 105 the framers of the Indian Evidence Act appear to have introduced no new law, but to have adopted the principle laid down above.
29. In any case the Indian Evidence Act of 1872 did not overlook the question of what privileges should, be accorded to witnesses. Chapter IX, Sections 122--132, and Chapter X, Sections 148--152, are examples of this, and if it had been the intention of the Legislature to extend to communications made by witnesses in the witness box the privilege of freedom from being made the subject of a civil or criminal trial, they could and would surely have amplified Section 132 of Act No. I of 1872. Can it be possible that prudent men who thought of this privilege should have lost sight of the privilege now under consideration? It seems impossible to answer the question but in the negative. The absence of enactment is to my mind conclusive that they omitted it from the Code of set purpose.
30. It seems, to me then that, by introducing such a maxim of English Law as we are asked to do by the learned Counsel for the petitioner we should be legislating in such a manner as to modify both the Indian Penal Code and the Indian Evidence Act of 1872, and this I am not prepared to do.
31. Further, it must not be left out of consideration that the Indian Evidence Act of 1872 was intended to be and is an Act consolidating, defining and amending the Law of Evidence. It is an Act based on the English Law of Evidence modified to suit India. As Section 2 of the Act shows, all rules of evidence not contained in any Statute, Act or Regulation in force in any part of British India wore expressly repealed.
32. If the rule of evidence now in consideration may be held in consequence of what their Lordships of the Privy Council stated in Gunnesh Dutt v. Mugneeram Chowdhry (1872) 11 B.L.R., 321 to have been a rule of evidence which did or ought, to prevail in India, it was a rule not contained in any Statute, Act or Regulation in force in 1872, and was expressly repealed by Section 2 of the Indian Evidence Act. The method, moreover, of construction to be adopted in the case of a Code like this has been pointed out by Lord Herschell in Bank of England v. Vagliano Brothers L.R., 1891, A.C. 107 and approved by their Lordships of the Privy Council in Norendra Nath Sircar v. Kamalbasini Dasi (1895) L.R., 23 I.A., 18 and also in Robinson v. Canadian Pacific Railway Company L.R., 1892, A.C., 481, where they add that resort must be had to the pre-existing law in all instances where a Code contains provisions of doubtful import or uses language which had previously acquired a technical meaning. But an appeal to earlier law and decisions for the purpose of interpreting a Statutory Code can only be justified upon some such special ground. No such special ground appears to exist in the present case.
33. The case law, while in favour of the contention raised by the petitioner, still points both ways:
34. In 1865 (Queen v. Pursoram Das) (1865) 3 W.R., Cr. R., 45, the Calcutta High Court were asked by Mr. Doyne to extend the principle of English Law that a defendant in a criminal case is not tongue-tied and may make use of any remark, however defamatory per se, with perfect immunity and protection from indictment or action. Kemp and Glover JJ., ruled that the case must be considered as governed by the provisions of the Indian Penal Code. Both learned Judges who heard the case refused to follow the English Law.
35. In Sealy v. Ram Narain Bose (1865) 4 W.R., Cr. R., 22 Glover, J., refused to extend the provisions of Section 27 of Act No. XVIII of 1862 to Mofussil Courts.
36. The authorities relied upon for the opposite view are:
37. Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry (1872) 11 B.L.R., 321.
38. Manjaya v. Sesha Shetti (1888) I.L.R., 11 Mad., 477.
39. Queen-Empress v. Babaji (1892) I.L.R., 17 Bom., 127.
40. Queen-Empress v. Balkrishna Vithal (1893) I.L.R., 17 Bom., 573.
41. Bikumber Singh v. Becharam Sircar (1888) I.L.R., 15 Calc., 264.
42. Woolfun Bibi v. Jesarat Sheikh (1890) I.L.R., 27 Calc., 262, and
43. Dawan Singh v. Mahip Singh (1886) I.L.R., 10 All., 425.
44. In all these cases the foundation may be said to be the case of Gunnesh Dutt Singh v. Mugneeram Chowdhry, and I cannot find that in any of them the attention of the learned Judges concerned was drawn to the fact that the observations of their Lordships of the Privy Council were really obiter dicta; that their Lordships had abstained from any allusion to the provisions of the Indian Penal Code, and, lastly, to the fact that when that case was decided the Indian Evidence Act had not been modified.
45. All these considerations appear to me to deprive Gunnesh Dutt Singh v. Mugneeram Chowdhry, of much of the weight the observations contained in it, even though obiter dicta, would otherwise undoubtedly have, and in dealing with the cases that follow I shall confine myself to any other considerations which influenced the Judges in extending this maxim of English Law to India.
46. In Manjaya v. Sesha Shetti (1888) I.L.R., 11 Mad., 477 Sir A. Collins, C.J., applied the observations of Cook burn, C.J., in the case of Seaman v. Netherclift (1876) L.R., 2 C.P.D., 58, and of Field, J., in Goffin v. Donnelly (1881) L.R., 6 Q.B.D., 807 as to the rules of public policy which subordinate the interest of the individual to that of a higher interest, viz., public justice, and referred to an earlier case, Hindi v. Bandhy (1876) I.L.R., 2 Mad., 13. Shephard, J., relied particularly upon Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry (1872) 11 I.L.R., 321. The Indian Evidence Act was not at all considered.
47. In Queen-Empress v. Babaji again the learned Judges gave no independent reasons for holding as they did. They were content to follow the rulings cited above.
48. In Queen-Empress v. Balkrishna Vithal, Telang, J., began by confessing that if the point had been res integra he would have been of opinion that the conviction should be affirmed. He continues: 'I am unable to adopt the view that on any correct principles of construction we should limit the meaning of the words of the section of the Indian Penal Code defining defamation so as to exclude therefrom any evidence given by a witness before a Court of Justice. It is admitted that the words are wide enough to include such evidence, and I do not think that judicial interpretations can properly limit their scope either in view of general considerations about the policy of protecting witnesses from being harassed or of the absence of any prosecutions being hitherto instituted in such cases.'
49. Mr. Justice Fulton, while admitting that is was undoubtedly a serious measure to limit the meaning of words in such a carefully drawn Act as the Indian Penal Code, and one which no Court would attempt unless it were practically certain that the matter to be eliminated was not within the contemplation of the Legislature, came to the conclusion that such certainty did exist.
50. Now, with all the respect due to such a learned Judge, I am unable to arrive at any such certainty. As I have already pointed out, a Legislature which had taken care to provide against the prosecution of a witness making a statement under compulsion, as is shown in Act No. II of 1855, Section 32, and Act No. I of 1872, Section 132, was not likely to overlook a maxim so well known and of such importance regarding statements made not under compulsion. It seems to me, on the other hand, from the very provisions set out in the Indian Penal Code that the Legislature did provide, and provide abundantly, for the protection of the honest witness. They considered the case of the dishonest witness and left him unprotected. Nor do I find myself able to attach much weight to the second reason given by Mr. Justice Fulton. If the objection be that no thought of the consequence that might follow should hinder a witness from speaking freely and unreservedly, then why retain the prosecution for perjury? Fully 90 per cent, of the witnesses who give evidence in a Court of Justice are ignorant of, and most of them incapable of appreciating, the different position in which a prosecution for perjury and a prosecution for defamation places them. The interest of public policy can be and would be better guarded otherwise. For instance, the simple addition of the words and figures 'section 499' to Section 195 of the Code of Criminal Procedure would be one way. Another way would be by the applying of Chapter XXXVII of the Code of Criminal Procedure, It is too often forgotten that the complainant in a criminal trial is a witness, and that if he does conduct the prosecution he only does so with the permission of the Court. This point seems to have been overlooked by Mr. Justice Fulton. The same learned Judge argues that the absence of prosecutions in such cases for defamation points to the conclusion that Judges and the public were of opinion that such prosecutions were not intended by Section 499. I venture to doubt whether this is a correct view. In these Provinces prosecutions for defamation of any kind are comparatively rare, but the reason lies elsewhere. It is rather to be traced to the unwillingness of men to court a public trial under such circumstances and to the fact that Criminal Courts overburdened with, work have no scruples about referring a complainant of such an offence to the Civil Court for his remedy. In this they have been encouraged by the words of Straight, J., in Empress v. Amir Hasan Weekly Notes, 1883, p. 167.
51. In Bhikumber Singh v. Becharam Sircar (1388) I.L.R., 16 Calc., 264 the learned Judges simply followed the English law and did not notice Indian law.
52. In Woolfun Bibi v. Jesarat Sheikh (1890) I.L.R., 27 Calc., 262 the Judges merely followed the cases cited and had to deal with the easier case of statements made by witnesses relevant to the issue in the case under inquiry.
53. There remains the case in this Court--Dawan Singh v. Mahip Singh (1886) I.L.R., 10 All., 425.
54. Neither of the Judges who decided the case considered the Indian law bearing upon the point. Even Mr. Justice Mahmood, after holding that the English common law, though it must always be referred to for guidance in questions of difficulty and regarded with respect, is not necessarily fit to be adopted in its integrity, irrespective of the conditions of the country (p. 438), and again that unadvanced countries like India present a state of society where personal insult needs more checks than in more civilized countries like England (p. 445), went on to consider the question of privilege without one allusion to the Indian Penal Code or to the Indian Evidence Act.
55. These cases do not remove from my mind the difficulties I have set out earlier in my judgment, and I think the view held by Mr. Justice Young in Queen-Empress v. Gajadhar is a sounder view to take of the Indian Law upon the paint. I am therefore not in favour of granting the prayer of the applicant, as I do not consider he has discharged the burden laid upon him by Section 105 of the Indian Evidence Act, 1872. The words used by him regarding Banke Lal were prima facie irrelevant to the inquiry and highly defamatory, and the petitioner has not attempted to prove any circumstances which would bring him within any of the special exceptions attached to Section 499 of the Indian Penal Code.
56. Under the provisions of Sections 439(1) and 429 of the Code of Criminal Procedure the case was laid before Aikman, J., who delivered the following opinion:
57. This case has been laid before me under the provisions of Section 439(1) read with Section 429 of the Code of Criminal Procedure, the Judges composing the Court of Revision being equally divided in opinion on the question raised by the application for revision. That question is whether a witness can be convicted under Section 500 of the Indian Penal Code for the use of defamatory words when giving evidence. This is a question which has given rise to great conflict of opinion in the Courts of this country. A large number of Judges, following the law as it exists in England, have held that witnesses cannot be prosecuted for defamatory statements made by them in giving evidence. In some cases the language used would indicate that in the opinion of the Judges, the immunity of a witness is absolute; in other cases it has been held that the statement of a witness are privileged only if relevant to the issue under inquiry. In many of these cases the learned Judges have put forward in support of their views considerations of public policy as affecting the public and the administration of justice. Such considerations, it seems to me, might well be adduced as arguments to induce the Legislature to amend the law, but when the law of offences has been codified as it has in this country, they are in my judgment entirely out of place in construing the language of the Act. The judges who have held that statements of witnesses are privileged have laid great stress on the observations of their Lordships of the Privy Council in the case of Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry (1872) 11 B.L.R., 321, at page 329. That case has been considered by the learned Acting Chief Justice in the opinion he has recorded in the present case, and he has given reasons for holding that what their Lordships said in the case cited is not conclusive of the question before us. With these reasons I entirely concur. The argument drawn from Section 132 of the Evidence Act, which was not in force when the judgment of the Privy Council was pronounced, appears to me unanswerable. If, as the law then stood, witnesses were protected from any criminal prosecution for statements made in the witness-box, except a prosecution for giving false evidence, what necessity was there for making special provision protecting witnesses from prosecution for anything said in reply to questions which they are compelled to answer? If the law in India was the same as that in England, the proviso to Section 132 of the Evidence Act is useless
58. But although many Judges in this country, following English law and actuated by considerations of public policy, have held that witnesses cannot be prosecuted for defamation, a still larger number have held that the question must be decided by what the Indian Penal Code says, without regard to the state of the law in England or consideration of what would be desirable in the interests of public policy and the administration of justice, and with that view I agree.
59. In the case of Green v. Delanney (1870) 14 W.R., Cr. R., 27 Phear J., said;--'I think the Judge erred in looking outside the Penal Code itself for the purpose of ascertaining the criminal law of this country with regard to defamation. If the facts which are the subject of a complaint fall within the limits of Section 499, construed, as the section ought to be, according to the plain meaning of the words therein used, and if they are not covered by any of the exceptions to be found in the Code, then in my judgment they amount to defamation, quite irrespective of what may be the English law on the subject.' In this view Jackson, J., fully concurred.
60. In the case Queen-Empress v. Balkrishna Vithal (1893) I.L.R., 17 Bom., 573 it was held, following previous rulings, that a witness cannot be prosecuted for defamation on account of statements made when giving evidence in the witness-box; Telang, J., said: 'I confess, if the point which arises in this case had been res integra, I should have been of opinion that the conviction should be affirmed. I am unable to adopt the view that on any correct principles of construction we should limit the meaning of the words of the section of the Indian Penal Code defining defamation so as to exclude therefrom any evidence given by a witness before a Court of Justice. It is admitted that the words are wide enough to include such evidence and I do not think that judicial interpretation can properly limit their scope either in view of general considerations about the policy of protecting witnesses from being harassed or of the absence of any prosecutions being hitherto instituted in such cases.'
61. In the case In re Nagarji Trikamji (1894) I.L.R., 19 Bom., 340 Jardine and Farran, JJ., referring to the above case, said that they were inclined to share the doubts expressed by Telang, J., and in regard to the liability of witnesses to be prosecuted for defamation observed: 'It would, however, in our opinion be beyond the province of mere interpretation to engraft a new exception on the definition. The Legislature has enacted a general exception in favour of Judges, to wit, Section 77 of the Penal Code, and in Section 132 of the Evidence Act has gone a certain length in protecting witnesses against the Criminal law; it may be assumed that it had no intention of going further.'
62. In the case Angada Ram Shaha v. Nemai Chand Shaha (1896) I.L.R., 23 Calc., 867 Petheram, C.J., and Rampini, J., said that they were bound by the earlier decisions of their Court, and added: 'if there had been no authority on the point in this Court, we should have come to the same conclusion.' In regard to the particular question before them, i.e., whether a statement made in the pleadings of an action was absolutely privileged in accordance with the rule of English law, they say: 'if it is defamation, nothing but one or other of the reasons mentioned in the exceptions can prevent the publication from being criminal.'
63. In the case Abdul Hakim v. Tej Chandar Mukarji (1881) I.L.R., 3 All., 815, the head-note, which correctly represents the sense of the judgment, is as follows: 'The law of defamation which should be applied in suits in India for defamation is that laid down in the Indian Penal Code, and not the English law of libel and slander.' In their judgment the learned Judges (Straight and Tyrrell, JJ.) say: 'It seems to us that when there is substantive law which can be appealed to for information and guidance, the safer course is to look there to ascertain some intelligible rule or rules by which determination of suits like the present should be regulated.
64. As pointed out by the learned Acting Chief Justice, the language of the Indian Penal Code was not considered in the Privy Council judgment in the case reported in 11 B.L.R., 321. Had it been considered, there can, I think, be little doubt that their Lordships would not have departed from the principles laid down by Lord Herschell in the Bank of England v. Vagliano L.R., 1891, A.C. 107 and approved of by the Privy Council in Narendra Nath Sircar v. Kamalbasini Dasi (1895) L.R., 23 L.A., 18, at p. 26, These are the principles which in my opinion should guide us in the present case. The applicant Ganga Prasad, in giving evidence used language in regard to the complainant Banke Lal, which clearly amounts to defamation as defined by Section 499 of the Penal Code, and he has not brought himself within any of the exceptions set forth in the Code. He therefore committed the offence made punishable by Section 500 of the Code.
65. In my opinion, therefore, he was rightly convicted. I was addressed by applicant's learned Counsel on the third plea set forth in the application, namely, that the sentence is excessive. I think, that, having regard to the circumstances of the case, this plea has force. The applicant, who has undergone the greater part of the term of imprisonment imposed on him, has been released on bail. I would reduce the term of imprisonment to that already undergone by him. I would also reduce the fine to Rs. 250.
66. In accordance with the above opinion the sentence of imprisonment passed on the applicant Ganga Prasad is reduced to the term already undergone. The fine is also reduced to Rs. 250. Any excess paid by the applicant must be refunded. The bail on which he was released is discharged.