1. This is an appeal by leave under Section 417 (3) Criminal Procedure Code by the complainant from the acquittal by the Magistrate of the respondent of a charge of defamation while deposing in a Civil Suit by stating
'Hemraj (present complainant and uncle (mama) of the plaintiff in that suit in which the respondent was defendant) was at Barnagar but has come away after becoming insolvent there.'
The ground for acquittal by the Magistrate was that the witness might have thought that he was bound to answer the question and as such he was protected by the proviso to Section 132 of the Evidence Act. However, the trend of paragraph 6 of the Magistrate's judgment is that whenever a witness answers questions in the witness box the very fact of the Court allowing the question to be put would lead to the presumption that it is relevant, and the very context would indicate that the witness is being competed to answer; thus, in effect, he grants privilege--or absolute privilege--in regard to the statement of a witness in the witness-box. The case is therefore of interest in that it calls for the examination, firstly, of the question of a witness's absolute protection from prosecution or suit for defamation for statements made in the box, the circumstances in which the benefit of the proviso to Section 132 Evidence Act may be claimed and thirdly, the manner in which a person charged with defamation by his statement in the witness-box can plead one of the exceptions mentioned in Section 499 I. P. C.
2. The facts of the case are simple and common ground. The respondent was being sued by one Pannalal, who happens to be the nephew (that is, sister's son) of Hemraj. The defendant in that suit that is, the respondent, was giving evidence on his own behalf. He was being cross-examined in course of which he made the statement-
''Hemraj Barnagar se diwala nikal kar aya hai. Inke mama hai tab se janta hun. .....'
There is nothing in the evidence or the proceedings to show that the witness was unwilling to answer and was being compelled; nor has Hemraj in any manner the least connection with, the subject-matter of the suit. When the suit ended, Hemraj filed a complaint against this respondent under Section 500 I. P. C. The statement was proved by the examination of the Civil Judge and the Clerk of the Court. Naturally, the correctness of the record has not been questioned. There was no serious direct attempt to prove the truth of the statement or the applicability of any of the exceptions; but it was urged that under the proviso to Section 182 Evidence Act, the respondent could not be prosecuted. This being accepted in a very general sense by the Magistrate, the respondent was acquitted.
3. Our law of defamation and the privilege or immunity from action in regard to a defamatory statement has been originally derived from the law of England but has from the very beginning been enacted in unmistakable words. The English law is that a witness is absolutely protected from action for defamation in respect of statements made by him in witness-box though possibly, he could be indicated for perjury, in case the statement is false and known to be false. But even there, the statement should relate to the subject-matter of the judicial proceeding, and it is very doubtful if a statement that is altogether without any bearing on that subject-matter, if made, will be protected. We are not, however, concerned with the English law as such except that the Madras High Court has in, early cases accepted those principles. The Madras view in the Full Bench decision The Queen v. Gopal Doss, ILR 3 Mad 271 and in Manjaya v. Sesha Shetti, ILR 11 Mad 477 though followed in a number of cases has been substantially modified in the comparatively later cases in Tiruvenga Mudali v. Tripurasundari, ILR 49 Mad 728 : (AIR 1926 Mad 906) (FB) and Elavarlhi Peddabba Reddi v. Iyyala Varada Reddi, AIR 1929 Mad 236. The trend in Bombay also had originally been in the same direction as Madras; but in later decisions like Bai Shanta v. Umrao Amir Malik, ILR 50 Bom 162 : (AIR 1926 Bom 141) (FB), the view is that there was no absolute privilege. Calcutta has been more consistently against absolute privilege and the ruling--Haider Ali v. Abru Mia, ILR 32 Cal 756 is fairly typical of the decisions of that High Court. The majority view of the Allahabad High Court has been to the same effect. In general practically all our courts are against the principle of absolute protection of a witness. We are concerned directly with the opinion of the Nagpur High Court. In Chotelal v. Phulchand, AIR 1937 Nag 198 it was held:
'A person giving evidence in a Court of law is not entitled to an absolute privilege in respect of the statement which he makes, and consequently he is not immune from a complaint of defamation by reason of words uttered on oath in the witness-box ... .. .. a person who alleges that he has been defamed and has not been a party to the proceedings at all, ... can move a Magistrate to entertain a complaint in respect of a defamation without moving the Court in which the statement was made, to make a complaint under Section 195 Criminal Procedure Code.'
4. Considering that our law of defamation unlike the English law on the subject has been completely codified in Section 499 I. P. C. and the exceptions have been enacted in the section itself, it is really not proper to go beyond them and to invoke the principles of the English law laid down in another context. Certainly, an unwilling witness who is being compelled by a Court to answer its question under express or tacit threat of prosecution, is entitled to consideration and should not be exposed to a suit or prosecution for defamation if what he deposes under compulsion turns out to be defamatory. But that situation also is fully met by the proviso to Section 132 Evidence Act.
5. As already noted, the learned Magistrate though ostensibly acquitting by application of the proviso to Section 182, has in the relevant part of the judgment (in paragraph 6) set out what in effect turns out to be absolute privilege-
'The statement was one that was made in answer to a question put to him and not voluntary. The fact that the Court allowed the questions shows that it Was relevant in the opinion of the Court The accused being asked questions on the subject, must have found himself in a very awkward position as according to law, he was bound to answer them'.
This is a situation in which every witness finds himself and the proper way of approach is to see, firstly, whether the statement is even remotely relatable to the subject-matter of the controversy in the judicial proceeding and the witness has been really unwilling to make it. If, while under examination, and on being asked how he knows so-and-so a party in the suit, the witness goes off at a tangent and says he knows--so-and-so, 'as a nephew of so-and-so who had become insolvent in such-and-such place and had moved on at his nephew's place afterwards .. ... .. ...' such a statement cannot in any manner be considered to be either one concerning the subject-matter of the judicial proceeding or one made under compulsion. Whether the question was relevant or not, most often--and certainly in this case-the answer itself would indicate. Here, for example, it was only as to the witness's knowledge of Pannalal, the plaintiff, and he quite unnecessarily moves away from the real point to speak ill of Pannalal's mama who had nothing whatsoever to do with the controversy. The compulsion in Section 132 is not the general latent compulsion over every witness, but some thing definite and express. The record itself should, indicate that the witness was really unwilling to make the statement concerned, and was being pulled up by an insistent Court to give an answer. It may not be necessary for him to prove that the Court expressly threatened him with consequences if he refused to answer; but compulsion should be clearly indicated as the proviso itself states-
'No answer which a witness shall be compelled to give shall subject him to any arrest..........'
In such a situation, the proper course for the witness is to ask the Court if he was bound to answer, and if the Court still insisted, there would be compulsion attracting the proviso. But, if the witness goes on without showing the least hesitation or asking the court to excuse him then on facts, there is no compulsion. The learned magistrate has read into the proviso, the principle of absolute privilege by presuming that there is compulsion whenever a witness conies into the box; that is not correct.
6. It is an interesting question, whether in the event of the witness under compulsion giving a statement which is false and defamatory, be could be prosecuted on the latter ground. That question does not arise in the present case; but it would appear, in view of the wording of the proviso, that in such event, he cannot be prosecuted on complaint for defamation, but can be dealt with in a complaint by the Court for perjury.
7. In this case, it is clear that the witness was not entitled to any protection under the proviso to Section 132 Evidence Act. He was, however, entitled to plead that his statement came under one or the other of the exceptions in Section 499 IPC which however, is exactly what he has not attempted to do. All that he has done is to bring on record a document showing that in 1943, about 15 years before his statement in Court, some property belonging to the complainant had been sold upon satisfaction of a court-decree. The idea apparently was that the sale of property in execution of a decree is an 'act of insolvency,' and therefore it would be true to state in 1957 or 158 that a person, some property belonging to whom had been sold in 1943 in execution of a decree had been insolvent. I do not agree. What is technically an 'act of insolvency' may in certain circumstances lead to a declaration of insolvency; but it is not always so. Apart from it, the question in this case is not whether the statement given by the respondent can in a very round-about manner be described as an exaggeration of something that really happened many years ago, but whether any of the exceptions was attracted. None of them was applicable even according to the witness.
8. The result is that the judgment of acquittal is set aside and the respondent is convicted under Section 500 IPC. In view of the lapse of time before the case has come up here and the general background in this case, we are of opinion that a fine of Rs. 200/- or imprisonment in default for six months is sufficient. The appeal is allowed in these terms. The fine, if realised, shall in entirety be made over to the complainant as compensation under Section 345(1) Criminal Procedure Code.