1. This is an application in revision asking for further inquiry into a complainant of defamation under Section 500. I.P. C, which has been dismissed under Section 203, Criminal P.G. An application was made to the Sessions Judge who has rejected it. One Mt, Champa Devi filed a complaint charging Pirbhu Lal, Basdeo and Banarsi Das with offences under Sections 451 and 506, I.P.C. When asked for their answer to the charge they said that they could file a written statement. In the course of that written statement they made an imputation of unchastity against the complainant alleging that she had an illegal connexion with one Piare Lal and that the case had been instituted at the instigation of Piare Lal in consequence. That complaint was dismissed, and Mt. Champa Devi and Piare Lal then filed this complaint of defamation against Pirbhu Lal, Basdeo and Banarsi Das.
2. The Deputy Magistrate made an inquiry under Section 202, Criminal P.C. He then dismissed the complainant partly on the technical ground that the written statement had not been formally proved and partly on the ground that the defamatory imputation was not a 'serious direct, clear and complete imputation' and was not made with the intention of harming, or knowledge that it was likely to harm, the reputation of the complainants. The learned Sessions Judge has rightly brushed aside the reasons given by the learned Deputy Magistrate. He decided the case on the broad ground that a statement made by an accused parson in a written statement filed by him in answer to a criminal prosecution is privileged, and that even if the privilege is not absolute it covers the present case because the imputation was made for the protection of the persons making it and not with the intention of doing harm to the complainants.
3. The learned Judge refers to the decision of the Madras High Court in Potaraju Venkata Reddy v. Emperor (1913) 36 Mad 216, in which they held that an oral statement made by an accused person was absolutely privileged; but I am not sure that he intends to adopt the view taken in this case; otherwise he would have hardly remarked below that the privilege may not be absolute. The view consistently taken by this Court has been that there is a distinction between criminal and civil liability for defamation. Civil liability is to be determined by the principles of English Law, but criminal liability is governed by the provisions of the Indian Penal Code and by those provisions alone. This view was taken by Aikman, J., in Isuri Prasad Singh v. Umrao Singh (1900) 22 All 234, and was re-affirmed by a Full Bench in Emperor v. Ganga Prasad (1907) 29 All 685. The view taken by this Court has quite recently been unanimously approved by a Full Bench of five Judges of the Calcutta High Court in Satis Chandra v. Ram Dayal De AIR 1921 Cal 1. The immunity conferred by Section 342(2) does not extend to a written statement.
4. I entirely concur with the Sessions Judge in finding that in the circumstances of this case the statement was made for the protection of the interests of the persons making it. The statement was undoubtedly a defamatory statement which the parties making it must have known to be likely to harm the reputation of the complainant;. The only further question is whether the imputation was made in good faith within the meaning of the ninth exception to Section 499. If there had been a definite finding of the Court below that the imputation was made in good faith I would have unhesitatingly refused to interfere, but I cannot read any such finding into the general statement of the learned Sessions Judge that the case is covered by privilege and that the statement was not made with the intention of doing harm to the applicants but with the object of saving the persons making it. Indeed on he materials on the record, I do not see how it would have been possible for the Courts to arrive at any such finding. No notice had been issued to the accused and all that the Deputy Magistrate had before him was the statements of the complainants and the statements of their witnesses called under Section 202. I therefore accept this revision and direct further inquiry to be made into the complaint.