1. This is a case in which a man has been charged under Section 500 of the Indian Penal Code and ordered to pay a fine of Rs. 250 for an answer given by him on oath in a Civil ease. The fine was reduced by the Sessions Judge to Rs. 100. The applicant, being still dissatisfied, has applied to this Court to fet aside the order on the ground that no offence had been committed.
2. The circumstances of the ease are possibly exceptional, but it is perfectly certain that at an adjourned hearing of the case the witness, who was a mortgagee and was suing his mortgagor for his money, was asked by the Munsif who was trying the case why he wanted back his money. His answer was that he did not wish to keep the land of the present complainant, the then defendant, under mortgage, because he was a badmash and a thief. Of course that meant that be thought him so.
3. It appears that this answer was given to the Munsif at an adjourned bearing after the witness had left the witness-box. So far as good faith is concerned, that is the strongest possible point in favour of the applicant because it shows that he had gone through the witness box and given his evidence without making any gratuitous or malicious attack upon the mortgagor, and it was only in answer to a question by the Munsif at the eleventh hour and to satisfy a perfectly natural but net strictly relevant curiosity of the Munsif that the answer came to be given in Court. A suggestion is made that when a witness has once been in the box and has left it, and at any late stage of the proceeding is asked some supplementary question by the Judge, he is 10 lorger a witress, or the proceeding is something different from the ordinary legal proceeding. I regard this contention as hardly worth discussion. When a witness is once sworn and afterwards re-called, he must behave himself in the same way as if he were giving evidence in the box for the first time at the commencement of the trial. No change has taken place by adjournment, or by his leaving the box, which relieves him from any obligation to speak the truth and to treat the Court with respect. Were it not for one or two authorities which have been mentioned to me, I should hold without the slightest hesitation that a witness was compelled to answer such a question asked him by the Judge within the meaning of Section 132 of the Indian Evidence Act. The two cases which raise any difficulty are the case of Queen-Empress v. Moss 16 A. 88 : A.W.N. (1894) 23 and the recent decision of my brother Piggott in Kallu v.Sital 43 Ind. Cas. 823 : 16 A.L.J, 201 : 19 Cr. L.J. 231 : 40 A. 271. I have not examined the circumstances under which the Chief Justice construed the section in the former case (which after all was not a decision ex cathedra upon this point at all, but was merely a ruling obiter on the admissibily of certain evidence) and I do not presume to express any opinion as to the correctness of that decision. I do think, however, that in the course of the decision and in the head-note a too narrow interpretation has been put upon the word 'compelled' in Section 132. The view there suggested is that compelled' can only mean 'compelled' by an order of the Court expressly made upon a Claim put forward by the witness to be excused from answering. The difficulty about accepting that view is that, for example, in the case of an experienced lawyer acquainted with the section and with the procedure of Courts of law, it may well be that knowing that his reason was one which was bound to be rejected he would think it waste of time and not unlikely to irritate the Court to take an objection which was bound to fail and that he might answer a question which, if he had refused to answer, the Court would have told him he must answer, in my view an experienced lawyer, answering a question which, if it were not for the section, he might refuse to answer, is just as much compelled to answer it as if he bad taken an objection and was overruled. He knows that he must answer it and he knows that he has no good ground for refusing. He is, therefore, in my view compelled. I think a witness who is not trained in the procedure of the law and probably knows nothing of these fine points but who comes into the box, whether or not with a desire to tell the truth, at any rate with a very natural determination to pay respect to the Court and to answer the Judge's questions, is compelled by the situtation in which he finds himself and the force of circumstances, and indeed by the Code of ordinary decency, and the respect which he owes to the Court. I now turn to the decision in Kallu v. sital 43 Ind. Cas. 823 : 16 A.L.J, 201 : 19 Cr. L.J. 231 : 40 A. 271 in which my brother Piggott applied the principle laid down in the case of Queen-Empress v. Moss 16 A. 88 : A.W.N. (1894) 23 to the facts of the case which he was deciding but in the following passage he, in my opinion, recognised that cases must arise in which the Courts would be compelled to hold that the witness was placed under compulsion by his appearance in the box. I accept this view, which cannot be better expressed than in the passage which I adopt from my brother Piggott's judgment: 'Obviously no form of words can be prescribed in which this Claim is to be made : and I conceive that cases may arise in which the Courts will be compelled to hold that the Claim has been made by implication, or that the witness was placed under practical compulsion to answer certain questions by the mere fact of his appearance in the witness-box'. I hold that this witness was compelled to answer the question which the Munsif put to him and that any proceedings for defamation in respect to the answer are prohibited by Section 132. The whole proceeding for defamation against him is misconceived and must be quashed. I admit the revision and quash all the orders made against him. The fine, if paid, must be refunded.