1. The main question raised upon this revision is a pure question of law, and depends upon the true construction to be placed on Section 499 IPC. A brief narration of facts is necessary. The petitioner Ashok Kumar filed a complaint against three respondents under Section 500 IPC for launching false criminal proceedings under Section 107 and 151, Cr.P.C. against him with a view to defame him as a bad character. He says that he has been lowered in the estimation of his relatives, friends and others. He alleges that people shun and avoid him.
2. The facts are as follows. Then petitioner preferred a criminal complaint against (1) Radha Kishan Vij, (2) Pritam Das, and (3) Thakur Chanderbadan Singh on 31-10-1973, under Section 500/120-B-/427 IPC. His case is that these persons entered into a criminal conspiracy to implicate him in a false case of teasing Vanita, daughter of Vij. Accused Vij was the complainant in the proceedings under Section 107/151 Cr.P.C. Pritam Das was a witness in that case. Chanderbadan Singh, in charge of police post arrested the petitioner and made a statement in court.
3. In the proceedings under Section 107/151 Cr.P.C. the petitioner was bound down for one year security by Shri S. L. Dua, S.D.M., Delhi on 7-1-71. On appeal this period was reduced by Shri O. N. Vohra, Additional Sessions Judge to four months by order dated 20-4-1971. The petitioner came in revision to the High Court. Ansari J. remanded the case back. Shri M. K. Chawla, Additional Sessions Judge Delhi after remand allowed the appeal and acquitted the petitioner.
4. Basing himself on the observations made by Shri M. K. Chawla, Additional Sessions Judge in his order dated 4-6-1973 the petitioner alleges that the respondents have committed the offences under Sections 427, 500 and 120-B IPC. By order dated 2-8-1975 the charge under Section 120-B was dropped as sanction of the State Government had not been obtained to prosecute the accused in respect of the conspiracy.
5. By his order dated 20-7-1981 the learned Magistrate dismissed the complaint in liming holding that it was not maintainable. He formed the view that the accused enjoyed complete immunity by reason of absolute privilege and no complaint thereforee can be preferred under Section 500 IPC. From his decision the petitioner has come in revision.
6. The trial Magistrate has put his decision on the grounds that the imputations against the petitioner, defamatory per se though he held them were absolutely privileged as these were made in the course of judicial proceedings. It is the correctness of this view that is in question.
7. The concept of defamation is as old as the hills. The classic definition was given by Mr. Justice Cave in Scott v. Sampson (1882) 8 QBD 491 as 'a false statement about a man to his discredit'. In Sim v. Stretch (1936) 52 TLR 669 Lord Atkin gave this test : 'Would the words tend to lower the complainant in the estimation of the right thinking members of the society generally ?' The malicious defamation deprives a man of the benefits of public confidence and social intercourse.
8. In the law of defamation it is a defense that the statement was made on a privileged occasion. In certain circumstances it is excusable to publish matter which is defamatory. Such excuse is termed privilege. Privilege is of two kinds : (i) absolute (ii) qualified. If the occasion is one of absolute privilege, this is a complete bar to an action for defamation, however irresponsible or malicious the statement may be. A person defamed on an occasion of absolute privilege has no legal redress, however outrageous the untrue statement which has been made about him and however malicious the motive of the maker of it. If, on the other hand, the occasion is one of qualified privilege, the privilege may be defeated by proof of malice. If the maker of the statement is actuated by malice he forfeits this protection of the shield of qualified privilege. The right of free speech is allowed wholly to prevail over the right of reputation in cases of absolute privilege. The right of freedom of speech prevails over the right of reputation, but only to limited extent in cases of qualified privilege.
9. Defamation is, and has always been, regarded as both a civil injury and a criminal offence. The person defamed may pursue his remedy for damages or file a criminal prosecution. Or he may concurrently both sue for damages and prosecute, as the petitioner has done. The petitioner brought, a civil suit for recovery of damages. He also filed this criminal complaint under Section 500 IPC. Both in civil law and crime the person defamed can vindicate his honour. Harm to the reputation is the common ground. In civil action the defendant pays compensation for vilification of the plaintiff. In criminal prosecution the law punishes him for the offence of defamation. Many people think that the civil law is simply inadequate to deal effectively with some of the most obnoxious types of defamation. In particular, poison-pen campaigns by cranks, and 'Character-assassination' - purposeful attempts to harm people by spreading deliberate lies about them to the police, their superiors, their family or their acquaintances (Reshaping the Criminal Law ed., by P. R. Glazebrook (1978) Stevens p. 285).
10. Anomalous as it may seem, the law of tort of defamation is different from the criminal law of defamation in this country. In the law of tort we follow the English law. The civil liability for defamation to pay damages is not governed by any statute law but is determined with reference to the principles of justice, equity and goods conscience which have been imported into this country from the English law (see Bira Gareri v. Dulhin Somaria, : AIR1962Pat229 ). In civil actions for damages there is what has been called 'judicial privilege'. Neither party, witness, counsel, nor Judge can be sued civilly for words spoken or written in the course of any proceeding before any court or tribunal recognised by law, and this though the words written or spoken were written or spoken maliciously without any jurisdiction or excuse, and from personal ill-will and anger against the person defamed. This absolute privilege has been conceded on the grounds of public policy to ensure freedom of speech should exist. The freedom of communication is of such paramount importance that civil suits for defamation cannot be entertained at all.
11. As long ago as 1872 this principle was recognised by the Privy Council in Baboo Ganesh Dutt Singh v. Mugneeram Chowdhry (1872) 17 Suth WR 283. The Board said :
'This action, has been called a suit to recover damages for defamation of character. Their Lordships are of opinion with the High Court that, if it had been, strictly speaking, such an action, it cannot be sued in a Civil Court for damages in respect of evidence given by them upon oath in a judicial proceeding. Their Lordships hold this maxim, which certainly has been recognised by all the Courts of this country to be one based upon principles of public policy. The grounds of it is this - that it concerns the public and the administration of justice that witnesses giving their evidence on oath in a Court of justice should not have before their eyes the fear of being harassed by suits for damages, but that the only penalty which they should incur if they give evidence falsely should be indictment for perjury.'
12. Since 1872 Baboo Ganesh Dutt Singh 1872 Suth WR 284 (supra) has been followed in India whenever a suit for damages has been brought, whether for defamation or for malicious prosecution. (See Madhab Chandra v. Nirod Chandra, : AIR1939Cal477 and Lachhman v. Pyarchand, 0065/1959 ).
13. With criminal liability it is different. The criminal liability for defamation is codified in India. It is enacted in S. 499 of the Penal Code and differs from the law of England. S. 499 confers only qualified privilege on certain occasions. It is common to speak of the statement as having privilege, but the better view is that it is an occasion and not the statement which is privileged. (See Minter v. Priest (1930) AC 558. A complete list of those occasions of qualified privilege is furnished by nine exceptions enacted in S. 499. The Indian Penal Code exhaustively codifies the law relating to offences with which it deals and the rules of the common law cannot be resorted to for investing exemption which are not expressly enacted.
14. As early as 1953 the Supreme Court rules that in criminal proceedings of defamation the witnesses can claim only qualified privilege and not absolute privilege. In Basir-ul-Huq v. State of West Bengal, : 1953CriLJ1232 Mahajan J. said :
'Section 499, Penal Code, which mentions the ingredients of the offence of defamation gives within defined limits immunity to person making depositions in Court, but it is now well settled that immunity is a qualified one and is not absolute as it is in English law.'
15. The Supreme Court expressly approved of the Full bench decision of Madras High Court reported in Narayana v. Veerappa, : AIR1951Mad34 . The citation is not given in the judgment of the Supreme Court by inadvertence, but the reference is clear from the approval expressed of the Madras decision.
16. The Full Bench of the Madras High Court after an exhaustive survey of the case-law concluded thus :
'It seems to us that the consensus of opinion in the various High Court in India has converged on the conclusion that the question of absolute privilege to a witness does not arise in view of S. 499, Penal Code, which relates to a criminal prosecution.' (Page 40).
17. An early decision on the question is Satish Chandra Chakravarti v. Ram Doyal De, (1921) 2nd 48 Cal 388 : 1921 22 Cri LJ 31. Five Judge of the Calcutta High Court considered this question. Ashutosh Mookerjee, Acting C.J. delivering the opinion of the Special Bench said :
'If a party to a judicial proceeding is prosecuted for defamation in respect of a statement made therein on oath or otherwise, his liability must be determined by reference to the provisions of S. 499, I.P.C. Under the Letter Patent the question must be solved by the application of the provisions of the Indian Penal Code and not otherwise; the Court cannot engraft thereupon exceptions derived from the Common Law of England or based on grounds of public policy. Consequently, a person in such a position is entitled only to the benefit of the qualified privilege mentioned in S. 499, I.P.C.'
18. The Calcutta case remains the leading authority on the question of privilege in criminal prosecutions for defamation. In 1926 a Full Bench of the Bombay High Court followed this Calcutta view. (See Shanta Bai v. Umrao Amir : AIR1926Bom141 . The Madras Full Bench followed the Calcutta and Bombay views. The Supreme Court approved of the Calcutta Special Bench and the Madras Full Bench. It is somewhat strange that everybody has forgotten this Supreme Court decision of Basir-ul-Huq : 1953CriLJ1232 . Neither the decided cases notice it nor the text book writers refer to it. The industry of counsel has brought it to limelight.
19. With the authoritative pronouncement by Supreme Court the law may be said to be well settled and indisputable. A party to a judicial proceeding enjoys only qualified privilege because that is what is statutorily enumerated in the nine exceptions to S. 499. No absolute privilege can be claimed. That is available in the common law. The law of crimes in India is not a mosaic of statute and common law. It is pure and unalloyed codified law. The court cannot engraft, on the provisions of the Code, exceptions derived from the common law of England which are based on public policy. We have now the high authority of the apex court that under S. 499 the 'immunity is a qualified one and is not absolute as it is in English law.'
20. What is the nature of this qualified privilege When an occasion of qualified privilege exists a person (provided he is not actuated by malice) is entitled to make defamatory statements about another. The statement must be made honestly and without any direct or improper motive. The principle is that the statement is protected if it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. (Too good v. Spyring (1834) 40 R R 523. The exceptions to S. 499 afford examples of this qualified privilege. These occasions are called occasions of qualified privilege, for the protection which the law, or grounds of public policy, affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made. If the freedom of speech is absurd and the liberty is made the cloak of maliciousness, the maker of the statement will not be able to rely on the privilege.
21. Qualified privilege is a conditional defense. It affords immunity to those alone who use the privileged occasion for the purpose which the law deems of sufficient social importance to defeat the countervailing claim to protection of reputation. In other words the immunity is forfeited by the abuse of the occasion.
22. The learned Magistrate held that the respondents are protected by absolute privilege. He was clearly wrong. He was misled by cases of tort for defamation or malicious prosecution in which civil suits for damages were instituted and the courts held that the defendants were protected by absolute privilege. For the view he took the Magistrate relied on Vattappa Kone v. Muthuk Aruppan AIR 1941 Mad 538 and Narayana v. E. Subbanna, : AIR1975Kant162 . These decisions were cases of civil liability. They were not cases of criminal prosecution. The law of civil liability is different from the criminal law of defamation in this respect.
23. Counsel for respondents 1 and 2 referred me to Lachman v. Pyarchand, 0065/1959 , Sanjiv v. Koneri, AIR 1926 Mad 521, Madhab Chandra v. Nirod Chandra : AIR1939Cal477 and Ram Prasad v. Emperor, : AIR1918All68 : 1919 20 Cri LJ 19 in support of his submission that there is absolute privilege in judicial proceedings in India and that the view of the learned magistrate was correct. The cases referred to by counsel are all cases of civil liability for tort of defamation or malicious prosecution and have no relevance in deciding cases under S. 499, I.P.C. The learned Magistrate fell into this error. He applied the law of tort to crimes. The two are as different as chalk and cheese. One is the unwritten law. The other is codified or statute law. Questions of civil liability or for damages for defamation and questions of liability in criminal prosecution do not, thereforee, for purpose of adjudication stand on the same footing.
24. Only two other cases remain to be notice. Counsel relied on Rajinder Singh v. State and Dinshaji Edalji Karkaria v. Jehangir Cowasji Mistri AIR 1922 Bom 381 : 1922 23 Cri LJ 654. The Punjab ruling follows the Bombay decision. The Bombay decision in its turn is based on Queen-Empress v. Babaji (1893) 17 Bom 127 and Queen-Empress v. Balkrisna Vithal, (1893) 17 Bom 573. In Shanta Bai v. Umrao Amir : AIR1926Bom141 the Full Bench overruled these two decisions holding that Babaji was wrongly decided and Vithal should have been decided according to the opinion of Telang J., was the first to point out in India, even before Mookerji, Acting C.J., that there is an 'anomaly' in law inasmuch as 'civil law is not in entire harmony with that of criminal law.' He said :
'I am unable to adopt the view, that on any correct principles of construction we should limit the meaning of the words of the section of Penal Code defining defamation, so as to exclude there from any evidence given by a witness before a court of justice.'
25. Mookerji, Acting C.J. in Satish Chandra Chakraverti 1921 22 Cri LJ 31 (supra) referred to the opinion of Telang J. as of 'considerable weight'. The province of the judge is to expound the written law only from the statute. He cannot engraft exceptions or invent exemptions from outside source foreign to the statute. His duty is to declare the law and not to legislate. The authority of Dinshaji Edalji Karkaria 1922 23 Cri LJ 654 thereforee has been considerably shaken in view of the discordant note struck by Telang J. and the express overruling of Babaji and Vithal on which it is based. The same is true of the Punjab decision of a single Judge.
26. A host of other objections were raised to the complaint instituted under S. 499. They relate to the merits of the questions in controversy. The learned Magistrate has grounded his decision only on absolute privilege and that view as I have shown is erroneous. It must thereforee be held that the respondents can only plead qualified privilege in defense. They have no absolute privilege. I do not propose to decide other objections raised before me to the complaint because the learned Judge has not dealt with them in his order. The parties' counsel will be entitled to raise them before him.
27. For these reasons the revision petition is allowed. The order dated 20-7-81 is set aside. The matter is remitted to the learned Magistrate for proceeding with the case in accordance with law.
28. Petition allowed.