1. The five applicants, Chatur Singh, Tula Ram, John, Pothi and Sri Chand have been convicted each of an offence under Section 500 of the Indian Penal Code and have been sentenced to a fine of Rs. 51 each or, in default, to undergo 'one month's rigorous imprisonment. These five persons were sailed as witnesses in a certain case As the learned Sessions Judge has pointed out, the question in that case was whether one Lallu Singh had been to a certain house. The question was relevant to the case and, in order to prove that he had not been to that house, these five persons were called to prove that he could not have gone there because he had been outcaste by reason of what is known as a dhariche marriage, with his uncle's wife. In that case Lallu Singh was a witness for the prosecution and the present five applicants were witnesses for the defense and, apparently, they were called to disprove the statement of Lallu Singh in order that the accused might be acquitted. In the result, the accused was acquitted. Thereupon, Lallu Singh made a complaint against these five persons charging them under Section 500 of the Indian Penal Code in that they had falsely stated that he had been outlasted for the reasons mentioned above. The Magistrate who tried the case found that the statement of outlasting was untrue because he found it satisfactorily established by evidence that a dhariche marriage of this description is common in the caste and did not constitute a reason for out casting. He, therefore, held that the statements made by these persons in the former case were untrue and, therefore, defamatory and he convicted and fined the accused as above stated.
2. The learned Sessions Judge on appeal upheld the conviction. Two points were taken before him which have also been taken before this Court. The first was, that the statements made by these persons were privileged statements and that they were compelled to answer the questions put to them when they were Sailed as witnesses; that the questions were relevant to the trial which was then before the Court and that, therefore, under Section 132 of the Indian Evidence Act, they were protected and could not be prosecuted for any offense other than that of perjury. The second point taken was that the trial of these five persons in one joint trial was illegal as each man was solely responsible for his own statement and not for the statements of his other co accused.
3. The learned Sessions Judge held that the accused persons could not claim the protection of Section 132 of the Indian Evidence Act because they had not protested when the question was put to them but answered it voluntarily. His judgment runs as follows: 'The question as to whether Lallu Singh had been to a certain house was relevant in that case and an attempt was made to show that he could not have gone to the house as he was an out-caste. under Section 132 of the Evidence Act the witnesses could have been compelled to answer the questions that were put to them but it appears that they took no objection when the questions were put and so, according to the interpretation placed upon the law by the various High Courts, they were not entitled to the protection afforded by the proviso to that section.' The rulings to which the learned Sessions Judge probably referred, though he does not say so, are to be found in Queen v. Gopal Doss 3 M. 271 : 2 Weir 782 : 1 Ind. Dec. (N.S.) 644 and Queen-Empress v. Moss 16 A. 88 : A.W.N. (1894) 23 : 8 Ind. Dec. (N.S.) 58. Perhaps, also, the Judge may have had in his mind the decision of this Court in Kallu v. Sital 43 Ind. Cas. 823 : 16 A.L.J. 201 : 19 Cr. L.J. 231 : 40 A. 271. My attention has also been called to the decision of a single Judge of this Court which is to be found in Ganga Sahai v. Emperor 54 Ind. Cas. 890 : 18 A.L.J. 112 : 21 Cr. L.J. 186 : 42 A. 257.
4. As regards the Madras ease, it will be noticed that it was a Full Bench case. Only shree Judges were in favour of the interpretation of the law given by the learned Chief Justice, whereas two Judges differed from that interpretation. The decision in Kallu v. Sital 43 Ind. Cas. 823 : 16 A.L.J. 201 : 19 Cr. L.J. 231 : 40 A. 271 was also a decision of a single Judge of this Court. The point deals with the meaning of the word 'compelled.' The question was discussed in the case of Kallu v. Sital 43 Ind. Cas. 823 : 16 A.L.J. 201 : 19 Cr. L.J. 231 : 40 A. 271, mentioned above, by Mr. Justice Piggott of this Court and a quotation from his judgment was made by Mr. Justice Walsh in his judgment in Ganga Sahai v. Emperor 54 Ind. Cas. 890 : 18 A.L.J. 112 : 21 Cr. L.J. 186 : 42 A. 257, personally, have no doubt whatsoever that the Accused persons in the present case were compelled, within the meaning of the law, to answer the questions put to them when they entered the witness-box. A voluntary statement by a witness may stand on a totally different footing to an answer given by him as a witness on oath to a question put to him either by the Court or Counsel on either side, specially when the question is on a point which is relevant to the case. It would be too much to ask of an ordinary layman that he should know all the terms of Section 132 of the Indian Evidence Act and that he should be prepared to protest against every question put to him in order to protest himself under that section. I think, if a common sense meaning be given to the word 'compelled' in Section 132, it is clear that in the present case these five persons were compelled to answer. They were under the direct compulsion of the law and, of the Court and in my opinion, they were protected by that section.
5. As regards the second point, the learned Sessions Judge remarks that 'it follows that these defamatory statements being similar to one another must have been made in concert and as the result of conspiracy. That being so, the joint trial appears to me to be proper.' Excepting the similarity of the statements and the fact that the Court of first instance has, on a somewhat flimsy ground, held them to be untrue there is nothing else to indicate conspiracy. If it had been necessary, I should have been compelled to send the case back for re trial of the accused separately. However, no order on this point is necessary as, in my opinion, they are protected by the law as laid down under Section 132 of the Indian evidence Act and they cannot be convicted of defamation. I, therefore, allow, this application, set aside the convictions and sentences and direct that the fines, if paid, be refunded.