1. This is a plaintiff's appeal from a decree and order-of the Additional Subordinate Judge of Etah, confirming the decision of the trial Court. The plaintiff sued the defendant, who is a Deputy Collector and Magistrate, for damages on account of certain expressions used by the Magistrate while presiding over his Court in which the plaintiff was being examined as a witness for the defence in a criminal case under Section 110, Criminal P.C. The circumstances alleged by the plaintiff wore that when he was being examined by the counsel for the accused he was asked 'is the Deputy Collector on intimate terms with Baquallah?' and when he replied in the affirmative the Magistrate said 'dishonest, liar, foolish and peat of Aliganj.' The trial Court found that the Magistrate did use these expressions in these circumstances, and the lower appellate Court has found that he did utter if the words 'dishonest, liar and foolish' to the plaintiff when he was in the witness-box and that he used them in order to degrade the plaintiff in the public eye because he did not like him. Nevertheless both the Courts have agreed that the defendant was in the circumstances absolutely protected and that no action against him would lie. This finding has been challenged in appeal by Dr. Asthana who has pointed to certain passages in the case of Rahim Bakhsh v. Bachcha Lal : AIR1929All214 , in which a Bench of this Court has held that the English common law of torts (on which the lower appellate Court in the present suit has relied)
is not applicable to India in its entirety and rules of English common law as enunciated or recognised by English Courts ought not to be applied to this country with inflexibility without regard to the dissimilarity in the two countries with reference to their customs and usages, the state of society and the conditions of things to be found therein.
2. Dr. Asthana has argued that it is going too far to hold that every Judicial Officer in this country enjoys the protection which the law in England would extend to him for it would be open to all Subordinate Magistrates and even the members of a village panchayat to use the most slanderous language in dealing with members of the public and yet enjoy complete immunity from any unpleasant consequences in the form of civil action for damages. In my opinion, however, the Courts below were perfectly right in holding that a Judicial Officer enjoys an absolute privilege. In the case of Chunni Lal v. Narsingh Das A.I.R. 1918 All. 69 at p. 371 (of 16 A.L.J.) a Full Bench of this Court held in 1917 that as 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. Sheikh Masludin (1887) 11 Bom. 551 to mean the rules of English law if found applicable to Indian society and circumstances... 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.
3. In the case of Raman Nayar v. Subramanya Ayyan (1894) 17 Mad. 87, a Bench of the Madras High Court held that an action, for defamation cannot be maintained against a Judge for words used by him whilst trying a cause in Court evert though such words are alleged to be false, malicious and without reasonable cause. The learned Judges followed the English law and remarked that in circumstances-very similar to those of the case before them the Court of Exchequer unanimously decided that such action would not lie:
The reasons given were that it is essential in all Courts that the Judges who are appointed to administer the law should be permitted to administer it under the protection of the law, independently and freely without favour and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt Judge, but for the benefit of the public whose interest it is that the Judges do exercise their functions with independence and without fear of consequences.
4. In the present case I am bound by the findings of fact that the objectionable expressions were used by the defendant. If he did act in a manner unbecoming to a Judicial Officer he is no doubt open to disciplinary action on the part of the authorities to which he is subordinate. It has been pointed out by Mr. Mushtaq Ahmad that the question put to the witness was irrelevant and might have been ruled out as such, by the Magistrate but that instead of ruling it out the Magistrate may have; lost his temper and used expressions which perhaps he regretted afterwards. He is however subordinate to the Local Government and it is unnecessary for me to say anything further regarding this part of the case. It is sufficient for the purposes of the present appeal to say that the decisions of the Courts below are perfectly correct, and the appeal is therefore dismissed with costs.