Knox, Pramada Charan Banerji, Tudball, Muhammad Rafiq and Walsh, JJ.
1. This second appeal arises out of a civil action for damages for defamation, the facts of which are briefly as follows:
The defendant, who is the appellant before us, was prosecuted in a Criminal Court for an offence under Section 193 of the Indian Penal Code. The plaintiff, who is a pleader, appeared to defend him. The court allowed bail and the plaintiff stood surety for the defendant to the extent of Rs. 100. Not being sure of his client, however, he asked the Court to allow Rs. 100 to be deposited in cash. The prayer was granted. The defendant produced the cash, giving it to the plaintiff, and it was actually deposited on the same date, the 22nd of August, 1913, in the Sub-Treasury at Shikohabad. There was some error in the usual procedure for the depositing of money and the full number of acknowledgements was not issued.
2. On the 4th of September, 1913, the case was heard and the defendant acquitted. On that date, however, he employed another pleader. On the 17th of September, 1913, he filed a petition stating that no receipt had been issued by the Treasury and he was in doubt as to whether the money had actually been deposited by the plaintiff. He asked for inquiry to be made from the Tahsildar. Inquiry was ordered and made, and on the 22nd of September, 1913, the Court received a reply that the money had actually been deposited on the 22rid of August. Without first inquiring from the court the result of the inquiry ordered, the defendant, on the 24th of September, 1913, filed a written complaint in the court of the District Magistrate charging the plaintiff with having committed the offences of cheating and criminal breach of trust in respect to the sum of Rs. 100.
3. The District Magistrate issued no process on this complaint, but made a preliminary inquiry and dismissed it on ascertaining the facts as to the deposit. The plaintiff thereupon prosecuted the defendant in a Criminal Court. For reasons with which we are not concerned, the defendant was acquitted.
4. The plaintiff then filed the suit out of which this appeal has arisen to recover Rs. 1,000 as damages for defamation. The courts below have decreed the claim to the extent of Rs. 200. Hence the present appeal by the defendant.
5. The plea raised on his behalf is that, in a civil action arising out of facts such as have been found in the present case, the defendant has an absolute privilege and is absolutely protected by the law from a civil action for damages for defamation.
6. For the plaintiff it is urged that in such a case there is no absolute privilege, but only a qualified privilege, and that as the defendant did not act in good faith, he is not protected. There being a conflict of rulings on the point, the case has been referred to this Full Bench for decision.
7. We deem it necessary, in view of certain arguments that have been raised before us in regard to the criminal law of defamation, to emphasize in the forefront of our judgement that we are not here concerned with libel as a criminal offence, but only with the civil wrong and the right to redress in a civil action. The civil and the criminal law and procedure do not in oar opinion coincide, but are independent of each other. We may quote as an instance one admitted difference between the civil and the criminal law. In a civil action the plea of mere truth is, if established, a complete defence. In a criminal charge it is not so, for the accused has further to prove the fact that it was for the public good that the imputation was made or published. We therefore restrict ourselves to the civil wrong and the right to redress in a civil action. Next, it is clear (and is also admitted before us) that the English rule of law on the point for decision is well established and beyond discussion, and that under that rule the appellant before us would be absolutely protected. It is unnecessary, therefore, to discuss the English decisions on a principle which has been accepted for generations and has never been questioned in England, It has been recognized by Indian Judges. It had to be conceded before us that the High Courts of Bombay and Madras have applied it without hesitation, and that the latter has even gone to the extent of applying it to criminal cases, on the correctness of which we abstain from expressing any opinion.
8. There is no Statute in India dealing with civil liability for defamation. We have, therefore, to apply the rule of equity, justice and good conscience. This has been interpreted by the Privy Council in Waghela Rajsanji v. Shekh Masluddin (1887) L. R. 14 I. A., 89; I. L. R., 11 Bom., 551. to mean the rules of English Law if found applicable to Indian society and circumstances. On behalf of the plaintiff respondent it is urged that in the present instance the rule of English law is inapplicable to the circumstances of this country, and that, whatever may have been the rule applied prior to 1860, the Legislature in introducing the Penal Code in that year did not apply the rule of English Law to criminal cases and may be said, by implication, to have amended the civil law. Reliance has been placed on the decision of the Calcutta High Court in Augada Ram Shaka v. Nemai Chand Shaha (1896) I.L.R., 28 Calc, 867. and on the dictum in Abdul Hakim v. Tej Chandar Muharji (1881) I. L. R., 3 All., 815.
9. Reference has also been made to several decisions in criminal cases; but we decline to discuss them, for the reasons already given. In regard to the first part of the argument the learned advocate for the respondent has failed to show us what there is in the circumstances and society of this country that would make it improper or inadvisable to apply the English rule. It is suggested that the mass of the population is uneducated and more impulsive and sensitive and therefore more likely to take the law into its own hands if it cannot get redress for defamation, and that therefore it would not be sound public policy to enforce the English rule. We do not think that these are weighty reasons. The English Law does not seek to protect dishonest parties, witnesses or advocates; but deems it a lesser evil that they should escape than that the great majority of honest parties, witnesses and advocates should be exposed to vexatious actions. Unless it can be said that the great majority of these classes in India is dishonest, there can be no good reason against applying the same rule in this country. Needless to say this has not been urged before us, and in this (sic)insance we consider that what is sound public policy in England is equally sound policy in India and that the rule of English Law is in accordance with the principles of justice, equity and good conscience.
10. The dictum of the Privy Council in the case of Gunnesh Dutt Singh v. Mugneeram Chowdhry (1872) 11 B. L. R., 321. supports us; that in 3 All., 815, is based on vague and indefinite grounds.
11. We cannot agree with the decision of the Calcutta High Court in Augada Ram Shaha v. Nemai Chand Shaha (1896) I. L. R., 23 Calc., 867. It appears to be based upon the assumption that there was no law of defamation in India before the Penal Code. This is not the case, for there are reported decisions on the subject in this province as far back as 1852. Moreover, the learned Judges applied the test of the Criminal Law to the Civil Law, whereas we hold that the two are independent of each other.
12. Lastly, the plea that a criminal enactment can be interpreted as amending the civil law by implication stands unsupported. It may be anomalous that a party should be criminally punishable and yet be not civilly liable in a case like the present, but it is not the only anomaly in this branch of the law.
13. We therefore hold that defamatory words used on such an occasion as is alleged by the plaintiff in this suit are not actionable, on the ground of absolute privilege, and that the present suit fails.
14. We allow this appeal, set aside the decrees of the court below and dismiss the suit. In view of the circumstances of the case the parties will abide their own costs throughout.