Govinda Menon and Basheer Ahmed Sayeed, JJ.
1. We think that the point of law involved in this case on which there is a conflict of opinion should be decided by a Full Bench. The decision of Leach C. J. and Chandrasekhara Aiyar J. in Nallappa Goundan v. Chinnammal, A. I. R.1942 Mad. 19 : 43 Cr. L. J. 44l runs couI. L. R. 1942 Mad. 158 nter to four earlier decisions, Shanmugasundaram Pillai v. Manicka Mudaliar, 1939 M. W. N. 192 : A. I. R. 1939 Mad. 368 : 40 Cr. L. J. 542 and Ammanna Sastri v. Sitaramayya, 1939 M. W. N. 336 and Gurubasayya v. Siddalingappa, 1940 M. W. N. 392 : A. I. R. 1940 Mad. 677 : 41 Cr. L. J. 906 and Ramaswami Konar v. Nachiar Ammal, 1940 M.W.N. 867. Recently one of us considered the point in Cri. R. C. No. 1524 of 1949 and distinguished the case in Nallappa Goundan v. Chinnammal, I. L. R. 1942 Mad. 158 : A. I. R. 1942 Mad. 19 : 43 Cr. L. J. 441. The same case was considered in Chinnayya Goundan v. Emperor, 1948 M. W. N. 357 : A. I. R. 1948 Mad. 474 : 49 Cr. L. J. 737. Sen J. of the Calcutta High Court in Bishan Singh v. Bam Nagina Singh, : AIR1950Cal77 expresses the opinion that where an offence of defamation is committed by a person during the course of a proceeding inCourt, no complaint under Section 500 can be made against that person, except under a complaint filed by the Court or the officer concerned under Section 195, Criminal P. C. The ratio decidendi of quite a large body of case-law, namely, Manjayya v. Sesha Shetti, 11 Mad. 477 : 1 Weir 586, Perianna Muthirian v. Vengu Ayyar, 1929 M. W. N. 196 : A. I. R.1929 Mad. 21, In re Ravanappa Reddi, 65 Mad. 343 : A. I. R. 1932 Mad. 253 : 33 Or. L. J. S6i and Dholliah v. Sub-Inspector of Police, Wellington Station : AIR1931Mad702 is to the effect that in similar circumstances, where the facts constitute two offences for one of which a complaint by the Court is necessary and for the other no such complaint is necessary, it is not possible to circumvent the provision of Section 195, Criminal P. C., by filing acomplaint for an offence for which a previous complaint under Section 195 is not necessary. Chandra Reddi J, who referred the case to a Bench, was also of the view that there is a conflict. We, therefore, are of the opinion that the entire case may be posted before a Full Bench for resolving the conflict on the point of law involved.
Opinion of the Full Bench.
Govinda Menon, J.
1a. The petitioner was the accused in c. c. No. 2 of 1950 on the file of the Court of the Joint Magistrate of Kumbakonam and he seeks to revise the order of the Joint Magistrate overruling a preliminary objection raised, that without a complaint from the Court under Section 195 (1) (b), Criminal P. C., the proceedings now pending in C. C. No. 2 of 1950 cannot be enquired into.
2. The petitioner is the managing director of Messrs. Eaman and Eaman Limited, a joint stock company running a fleet of motor buses in the Tanjore District. O. S. No. 37 of 1944 in the Court of the Subordinate Judge of Kumbakonam was a suit for a declaration that a sale by defendant 3 therein to defendant l (present petitioner) was void and inoperative and for recovery of possession of a number of buses which formed the subject-matter of the suit. The plaintiff in that suit is the present respondent and his claim was that he purchased the buses from defendant 3, but that after having sold the same to the plaintiff, defendant 3 again purported to sell them to defendant 1 firm which sale had no authority or justification. O. S. No. 37 of 1944 filed on 8-10-1944 was on the ground that the plaintiff purchased the buses on 10-4-1944. The contentions of defendant l, the present petitioner, among others were that the sale to the plaintiff by defendant 3 was a collusive transaction made withthe object of resiling from the earlier sale to him. While the suit was pending, the plaintiff applied for the appointment of a receiver and he was appointed receiver on 7-8-1945. As receiver, the plaintiff got possession of the buses and was running the same. There was a decree as prayed for in O. S. No. 87 of 1944 and the plaintiff who functioned as a receiver till then applied to continue in possession in his own right and this was ordered on 18-9-1946. Thereupon, defendant l filed an appeal to this Court against the decree of the Subordinate Judge and the same came up for hearing before the Hon'ble Chief Justice and Mack J. By their judgment dated 2-9-1949, they allowed the appeal and dismissed the plaintiff's suit with costs. Thereafter, the present petitioner, as defendant 1, applied by B, A. No. 883 of 1949 in E. P. No. 183 of 1949 to the Subordinate Judge, Kumbakonam, for restitution of the buses taken away from his possession. In that application it was claimed that damages amounting to a lakh of rupees should be ascertained and also that before the amount was ascertained the buses in the possession of the plaintiff-respondent should be attached. The affidavit in support of the application states that the attachment of all the properties of the plaintiff described in the schedule to the application filed along with the affidavit should be ordered under Order 21, Rule 42, Civil P. C., and that the plaintiff should be called upon to give security for Rs. 84,000 due as damages and Rs. 31,000 being the value of the buses and if the plaintiff failed to give adequate security to the satisfaction of the Court, the order of attachment should be made absolute. The third prayer was for the appointment of a receiver. E. A. No. 389 of 1949 supported by the affidavit was filed in Court on 26-10-1949 praying for the reliefs mentioned above. In addition to the affidavit dated 26-10-1949, another affidavit was also filed in support of the application.
3. Thereafter, the plaintiff-respondent filed a complaint on 5-1-1950 before the Joint Magistrate of Kumbakonam alleging that in the affidavit filed by the defendant-petitioner in support of his restitution application, there are statements which are false and also defamatory of the plaintiff-respondent. He, therefore, prayed that as defendant l has committed an offence under Section 500, Penal Code, the matter should be enquired into and the defendant punished. In the sworn statement of the same date the complainant alleged that the accused filed an affidavit containing false imputation in order to defame him and that all the defamatory statements are set out in the complaint. After summons was issued to the accused, hefiled an application on 10-2-1950 raising a preliminary objection that the complaint cannot be proceeded with in the absence of a complaint by the Court under Section 195 (1) (b), Criminal P. C. The reasons alleged are that the subject-matter of the complaint relates to the statements made by the accused in an affidavit filed before the Subordinate Judge of Kumbakonam in support of the prayer for attachment of the complainant's properties and the appointment of a receiver and since, according to the complainant, the statements were false, they constitute an offence under Section 193, Penal Code, for taking cognizance of which a complaint by Court is a necessary pre-requisite and in the absence of a complaint from the Subordinate Judge as provided for under Section 195 (1) (b), Criminal P. C., the Joint Magistrate has no jurisdiction to entertain the complaint and proceed with the enquiry. The learned Joint, Magistrate overruled the preliminary objection on the ground that Section 195, Criminal P. C., did not apply to a case of defamation. He distinguished an unreported decision of this Court and found that a complaint by the Court was not necessary for taking action for an offence of defamation under Section 500, Penal Code. As stated already, it is against the order of the Joint Magistrate overruling the preliminary objection that this revision petition has been filed. The entire case has been posted before this Full Bench on account of a conflict of decisions in this Court and with the object of resolving this conflict.
4. The learned Subordinate Judge of Kumbakonam before whom the affidavits containing the alleged defamatory statements have been filed has not decided about the truth or otherwise of the averments contained therein. It is necessary to preface the discussion with that statement. This is not a case where a Court has found that false evidence has been intentionally given in any stage of a judicial proceeding. It has yet to be decided as to whether the statements contained in the affidavits arefalse or not, though the complainant alleges that those statements are false and therefore an offence under Section 193, Penal Code has been committed. The further allegation is that not only are most of the statements false to the knowledge of the person who made the same, but that all of them, are defamatory intended to harm and injure the reputation of the complainant. The alleged false and defamatory statements are recited in paras. 5, 6, 7 and 10 of the complaint. The allegation in para. 7 of the complaint that the imputation that the complainant may collude with his friends and agree to have the ownership transferred to thirdparties is said to be a grossly defamatory one;but that is a matter which the Court, when it enquires into the truth or falsity of the other statements contained in the affidavit, would be able to decide because only a possibility is alleged and not an actuality.
5. We have heard elaborate and learned arguments on the various points of law arising in the case both from Mr. K. S. Jayarama Aiyar for the petitioner and from Mr. M. K. Nambiar, for the respondent and a wealth o judicial authority has been cited before us by both of them to substantiate the point of view which each of them seeks to justify.
6. The petitioner's counsel elaborates and builds up his argument in this way. According to the complaint, the averments contained in the affidavit are false, though the petitioner disputes that description. If the averments are false, according to the respondent, then the declarant of the affidavit has given false evidence in a judicial proceeding and thereby committed an offence under Section 193, Penal Code. If this is so, assuming, without admitting, that false evidence has been given, the result is that an offence under Section 193, Penal Code, is committed, in which case, by virtue of Section 195 (1) (b), Criminal P. C., no Court can take cognisance of an offence under Section 193, Penal Code, committed in relation to, or in the course of a judicial proceeding without a complaint from the Court before which the offence has been committed. There is no such complaint in the present case. If the alleged false statements partake of the nature of the defamatory statements also, then the person who, as a witness, who in this case is the same as a party to the proceeding, makes such a false statement, has absolute privilege in the making of those statements, and therefore cannot be proceeded with in a criminal Court for an offence under Section 500, Penal Code. If the plea of absolute privilege has to be accepted, then the only other imaginable offence which could have been committed is one under Section 193, Penal Code for which there is no complaint from Court and hence the lower Court ought not to have entertained the complaint. Secondly, even if the declarant has no absolute privilege in relation to the statements made, still, since, according to the complaint, by the self-same statement not only an offence under Section 193, Penal Code, but also an offence under Section 500, Penal Code, is committed according to the decisions of this and other Courts, an offence under Section 499, Penal Code, cannot be enquired into in the absence of a complaint from the Court for an offence under Section 193, Penal Code. Various authorities were cited in favour of the above proposition. On the other hand learned counsel for the respondent urges that the caseof absolute privilege has not been put forward in the lower Court at all but the objection to the entertainability of the complaint was put forward on the assumption that an offence under Section 500, Penal Code, has been committed. It is further contended that the Indian Lawof Defamation as enacted in Sections 499 and 500, Penal Code, is different from the law of England because the English Common Law relating to libel and slander cannot be administered in India in the face of the statutory provision contained in Sections 499 and 500, Penal Code. Though some earlier oases of this Court and other Courts had taken the view that witnesses have an absolute privilege in India inthe same manner as they enjoy in England, later cases have veered round to the view that the question is only one of qualified privilege as enunciated in Sections 499 and 500 of the Code. In England ordinarily libel alone is indictable in a criminal Court whereas slander is an actionable tort. But both libel and slander have been included in Section 499, Penal Code, and therefore even though a slanderous statement cannotordinarily be criminally indicted in England, in India slander can be made the subject of acriminal prosecution on account of the statutory provision contained in Sections 499 and 500, Penal Code. The English Common Law regarding civil remedies for libel and slander are alone administered in India and not where it relates to a crime. Therefore the contention is raised that there is only a qualified privilege so far aswitnesses are concerned. The decisions which lay down that, where one and the same set ofcircumstances or transaction creates offences for one of which a complaint from Court isnecessary and for entertaining the other, such a complaint is not, a Court cannot take cognizance of the minor complaint and thereby circumvent the provisions of Section 195, Criminal P. C., cannot apply to this case, where the two offences alleged to have been committed, viz., underSections 193 and 500, Penal Code, cannot be termed to be offences related to each other in any way but are totally separate and independent offences. The reason put forward is that a conviction or acquittal for an offence under Section 198, Penal Code, does not bar the conviction or acquittal for an offence under 3. 500, Penal Code, on the same set of facts. In other words, the merger of offences, viz., a minor one being merged in a major one, which requires a complaint from a Court, or a graver crime in which is, included a less serious crime, cannot apply where the offences are giving false evidence and defamation as in this case. The two are distinct and separate, the elements of the one having ^nothing to do with the elements of the other.
In this view, it is urged by the learned counsel for the respondent that the view taken in some of the decisions that the provisions of Section 195, Criminal P. C., do not apply to defamation, that a person who is defamed by a witness is at liberty to file a complaint against the person who defamed him under the Penal Code and that in such a case it is not necessary that a Court should itself complain or that the sanction of the Court should be obtained, is the more acceptable and correct view. In any event, there are statements in the affidavit per se defamatory and which could not possibly be made the subject of an enquiry and decision by a Court as to the truth or falsity of the same, and therefore at least with regard to those statements the complaint should be entertained. In addition, it is urged that since the Court has not adjudicated upon the truth or otherwise of the allegations in the affidavit, it cannot be surmised that simply because the complaint states that the allegations are false they are really untrue.
7. In support of the contention that no difference exists between sworn statements contained in an affidavit and those made orally in a Court on solemn oath, our attention has been invited to Adivaramma v. Raniachandra Reddy, 1910 M. W. N. 155 where it is held that there is no difference between evidence given in the box and evidence given on affidavit in that they are both absolutely privileged and no suit for damages will lie in respect of evidence given therein. Wallis J. relies upon the observations contained in Dawkins v. Lord Rokeby, (1859) 7 H. L. C. 744 45 L. J. Q. B. 8.It is not seriously contended that we should make any difference with regard to the applicability of Section 193, Penal Code, between sworn statements contained in an affidavit and those given in the witness-box. But as we have already stated, so far as a suit for damages is concerned, the law in India is still the Common Law of England, viz., that witnesses are absolutely privileged and that the dictum in Dawkins v. Lord Rokeby, (1859) 7 H. L. C. 744 and 752 and 755 holds good in this country. In that case, in response to a question from the Lord Chancellor the consulted Judges through the Lord Chief Baron (Sir F. Kelly) expressed the opinion that
'no action will lie against a witness for what he says or writes in giving evidence before a Court of Justice. This does not proceed on the ground that the occasion rebuts the prima facie presumption that words disparaging to another are maliciously, spoken or written. If this were all, evidence of express malice would remove the ground. But the principle is that public policy requires that witnesses should give their testimony free from any fear of being harassed by an actionon allegation, whether true or false, that they acted from malice.'
The House of Lords accepted the opinion of the Judges.
8. Dawkins v. Lord Rokeby, (1873) 8 Q. B. 265 is a decision of the same case in the trial Court where Kelly C. B. expressed the same opinion :
'The authorities are clear, uniform and conclusive, that no action of libel or slander lies, whether against Judges, counsel, witnesses or parties, for words written or spoken in the ordinary course of any proceeding before any Court or tribunal recognised by law.'
It is therefore clear, as already remarked by us, that in England witnesses are absolutely privileged both against criminal prosecution and against civil suits for damages. In India, since we have no codified law relating to the tort of defamation, the English law prevails. Mr. K. S. Jayarama Iyer relied upon the decisions in Sullivan v. Norton, 10 Mad. 28 , Manjayya v. Sesha Shetti, 11 Mad. 477, In the matter of Alraja Naidu, 30 Mad. 222: 6 Cr. L. J. 180, In re Venkata Reddy, 86 Mad. 216 : 14 I. C. 659, In re Muthuswami Naidu, 37 Mad. 110 : A. I. R. 1914 Mad. 472 : 13 Cr. L. J. 293 and Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry, 17 W. R. 283 ; 11 Bang. L. R. 321 for the contention that witnesses have absolute privilege in India, even against criminal prosecutions. The early case in Sullivan v. Norton, 10 Mad. 28 did not relate to a witness or to a criminal proceeding. It was a case of an advocate having made defamatory statements while in the course of his professional work and a Full Bench of this Court held that an advocate in India cannot be proceeded against civilly or criminally for words uttered in his office as an advocate. The earlier decision of their Lordships of the Judicial Committee in Baboo Gunnesh Dutt Singh v. Mugneeram Chowdry, 17 W. R. 283 : 11 Beng. L. R. 321 related to a suit for damages for defamation and their Lordships held that witnesses cannot be sued in civil Courts for damages in respect of evidence given by them upon oath in a judicial proceeding. This maxim, which certainly has been recognised in this country by all the Courts, is based upon the principle of public policy in 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 an indictment for perjury.
9. In Manjaya v. Sesha Shetti, 11 Mad. 477 : 1 Weir 586, a Bench of this Court held that when a person was convicted under Section 500,Penal Code, for defaming another by making: a statement when under cross-examination in a judicial proceeding before a criminal Court, such a conviction was bad because the statements of witnesses are privileged and, if false, the remedy is by indictment for perjury and not for defamation. The learned Judges relied; upon the decisions of the English Courts to that effect. This decision was followed in In the matter of Alraja Naidu, 30 Mad. 222 : 6 C. L. J. 180 where Benson J. held that it is contrary to public policy that a person bound to state the truth in answer to questions put to-him by a Court should be liable to be prosecuted for defamation in respect of answers so given, though untrue and not given in good? faith. The matter was elaborately discussed later on by a Full Bench in In re Venkata Reddy, 36 Mad. 216 : 14 I. C. 659 where Arnold White C. J. reviewing all the cases and relying upon the dicta contained in the English cases held that where a person was charged with an offence and when replying to the Magistrate in answer to a question put to him made a statement defamatory of one of the prosecution witnesses, that statement was absolutely privileged and that he was not liable to be punished in respect thereof for an offence under Section 499, Penal Code, The Full Bench further went on to hold that although the English doctrine of absolute privilege is not expressly recognised in Section 499, Penal Code, it does not necessarily follow that it was the intention of the Legislature to exclude its application from the law of this country. Reference was made to the observations of Lopes L. J. in Royal Acquarium v. Parkinson, (1892) l Q. B 431 : 66 L. T. 513 as well as to the decision in Dawkins v. Lord Rokeby, (1859) 7 H. L. C. 744 and (1873) 8 Q. B. 255. We need not dilate upon the observations contained in this case because it came up for consideration in a larger Full Bench in Tiruvengada Mudali v. Tripurasundari Ammal, 49 Mad. 728 : A. I. R. 1926 Mad. 906 : 27 C. L. J. 1026 though In re Venkata Reddi, 36 Mad. 216 ; 14 I. C. 639 was followed in a later case, In re Muthuswami Naidu, 37 Mad. 110 : A. I. R. 1914 Mad. 472 : 18 C. L. J. 293 where a Bench held that a defamatory statement in a complaint to a Magistrate is absolutely privileged. In Gopal Naidu v. Emperor 46 Mad. 605 : A. I. R. 1923 Mad. 523 a Full Bench of five Judges came to the conclusion that since the criminal law of India has been codified in the Penal Code and the Criminal Procedure Code, the Court is not entitled to invoke the Common Law of England in such matters at all, because the law has to be ascertained by interpretingthe language used in the Codes themselves. In the judgment of Devadoss J. reference was made to the decision in In re Venkata Reddi, 86 Mad. 216: 14 I. C. 659 though the other Judges have not adverted to that decision or expressed an opinion regarding the correctness of that particular case. What they were concerned was regarding the correctness of the decision in In re Ramaswami Ayyar, 44 Mad. 913 : A. I. R. 1921 Mad. 438 : 22 C. L. J. 412 which the Full Bench held to be correct not for the reasons given by the learned Judges in In re Ramaswami Ayyar, 44 Mad. 913: A. I. R.1921 Mad. 458 : 22 C. L. J. 412 but on other grounds.
10. As mentioned a Full Bench of five Judges in Tiruvengada Mudali v. Tripurasundari Ammal, 49 Mad. 728 : A. I. R. 1926 Mad. 906 : 27 Cr. L. J. 1026 had to consider about the correctness of In re Venkata Reddi, 86 Mad. 216 : 14 I. C. 659 and in the opinion of the Full Bench, In re Venkata Reddy, 86 Mad. 216 : 14 I. C. 659 was wrongly decided and was therefore overruled. The actual decision in Tiruvengada Mudali v. Tripurasundari Ammal, 49 Mad. 728 : A. I. R.1926 Mad. 906 : 27 C. L. J. 1026 was that according to the eighth exception defamatory statements made in complaint to Magistrates are not absolutely privileged, because matters specifically dealt with by the Penal Code such as the one under consideration should not be decided by the application of the English Common Law. The learned Judges of the Full Bench reserved the question as to whether absolute privilege attaches to advocates and witnesses in the following words at p. 787 :
'The question of privilege that may attach to an advocate or witness is not before us and we express no opinion as to whether it might or might not be possible to distinguish their position.'
In view of the clear exposition contained in Tiruvengada Mudali v. Tripurasundari Ammal, 49 Mad. 728 : A. I. R. 1926 Mad. 906 : 27 C. L. J. 1026 we have now to take it that In re Venkata Reddy, 36 Mad. 216 : 14 I. C. 659 stands overruled. Though the matter was left open in Tiruvengada Mudali v. Tripurasundari Ammal, 49 Mad. 728 : A. I. R. 1926 Mad. 906 : 27 Cr. L. J. 1026 it came up for consideration regarding the absolute privilege claimed by a witness in Peddabba Reddi v. Varada Reddi, 52 Mad. 482 : A. I. R. 1929 Mad. 236 : 30 C. L. J. 613 where Devadoss and Waller JJ. held, dissenting from Manjayya v. Sesha Shetti, 11 Mad. 477 : 1 Weir 586 that in India statements made by witnesses are entitled not to an absolute but to only a qualified privilege so far as criminalprosecutions are concerned. They further held that a witness who answers a question put to him by counsel without seeking the protection of the Court under Section 182, Evidence Act, is not entitled to that protection. Devadoss J. notes the distinction between the English and Indian law regarding defamation both as an indictable offence as well as a civil remedy. The learned Judge exhaustively discussed the law on the point citing a large body of case-law both English and Indian and we are in entire agreement with him. It is therefore now too late in the day for Mr. Jayarama Iyer to contend that a witness has absolute privilege with regard to evidence given by him in a Court of law when he is prosecuted for defamation under Sections 499 and 500, Penal Code. The other High Courts in India have also taken the same view. The whole subject is discussed in Ratanalal's Law of Crimes, Edn. , where the decisions of the various High Courts have been noted. All the High Courts have held that a person giving evidence in a Court of law is not entitled to an absolute privilege in respect of statements 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. So far as the Bombay High Court is concerned, we need only refer to the Full Bench decision in Bai Shanta v. Umrao Amir : AIR1926Bom141 . It is unnecessary for us to refer to the decisions of the other High Courts because all of them are found collected by the author at pp. 1263 and 1264. In this connection we may refer to a decision by a Full Bench of five Judges in Satish Chandra v. Ram Doyal De, 48 Cal. 388 : : AIR1921Cal1 where Mukerjee Ag. C. J., after reviewing the entire body of case-law, held that a defamatory statement, on oath or otherwise, by a party to a judicial proceeding, falls within Section 499, Penat Code, and is not absolutely privileged. It is not open to the Court to engraft exceptions derived from the Common Law of England on the statute law of India. What happened in that case was this : A party made an accusation against his vakil of professional misconduct and requested the Court to take disciplinary action. The High Court, after enquiry, refused to take any action, whereupon the pleader filed a complaint before the Presidency Magistrate charging his accuser for defamation under Section 500, Penal Code, in respect of statements contained in the petition which he filed before the High Court. This complaint was filed despite the refusal by the High Court to sanction prosecution of the client for an offence under Sections 181 and 193,Penal Code, and when objection regarding the maintainability of the complaint under Section 500, Penal Code, was taken on the ground that the Court had refused sanctions to file a complaint under Sections 181 and 193, Penal Code, the Full Bench held that them is no bar to the maintainabilityof the prosecution for defamation even though the Court refused to sanction the complaint foroffences under Sections 181 and 193, Penal Code. In re Venkata Reddi, 36 Mad. 216 : 14 I. C. 659was referred to and dissented from. It seems tous that the consensus of opinion in the variousHigh Courts in India has converged on theconclusion that the question of absolute privilege to a witness does not arise in view of Section 499, Penal Code, which relates to a criminalprosecution.
11. We have nest to see as to how fat the contention, that the alleged defamatory statement, being also one to which is attached the characteristic of an offence under Section 198, Penal Code, cannot be made the subject of a prosecution because of the absence of a complaint from Court under Section 195, Criminal P. C., can be acceded to or not. A large number of cases have been quoted in relation to this topic. The second part of the contention of the learned counsel for the petitioner is that even if there is no absolute privilege or immunity from criminal prosecution still, since the passages complained against, according to the present complainant-respondent, are false and constitute an offence under Section 193, Penal Code, it is more in consonance with natural justice and equity that where, on the same facts, a general offence, which does not require a complaint by a Court or public servant, is committed along with a more aggravated, and, particularised form of offence, it is not open to the prosecution to circumvent the provisions of Section 195, Criminal P. C., by resorting to proceed with the general minor offence without attempting to move the Court, or the officer concerned, for taking action under Section 195, Criminal P. C. It is hence urged that the Court must consider the facts in the complaint as a whole and if they disclose an offence for which a special complaint is necessary under Section 195, Criminal P. C., the Court cannot take cognizance of the case at all unless such a complaint has been filed. Various decisions are cited in support of this contention, but it is not quite necessary to refer to them in detail. The latest case is by one of us in Chinnayya Goundan, In re : (1948)1MLJ448 where it was held that when certain persons are prosecuted under Section 143 read with Section 188, Penal Code, for defianceof an order under Section 144, Criminal P. C., the real offence committed is one under Section 188,Penal Code, and the accused cannot be tried for a minor general offence like the one under Section 143, Penal Code, without a proper complaint under Section 195 (1) (a), Criminal P.C., and the trial and conviction without such a complaint would be without jurisdiction. In this case reference has been made to the decision of Curgenven J. in Perianna Muthirian v. Vengu Ayyar, 56 M.L.J. 208 : A.I.R. 1929 Mad. 21 : 30 Cr.L.J. 322 to the decision of a :Bench consisting of Jackson and Curgenven JJ. in Ravanappa Reddi v. Emperor, 55 Mad. 348 : A. I. R. 1932 Mad. 253 : 38 Cr. L. J. 86l and to other, decisions. The decision of Madhavan Nair and Burn JJ., In re Appadurai Nainar, 59 Mad. 165 : A.I.R. 1936 Mad. 89 : 37 Cr.L.J. 159 has also been discussed and followed. Happell J. in Antarvedi Sarma, In re, (1946) l M.L.J. 466 : A.I.R.1946 Mad. 489 : 47 Cr.L.J. 1034 has also referred to the earlier cases and analysed them exhaustively and the learned Judge followed the decision in Appadurai Nainar v. Sampath Rao Nainar, 59 Mad. 165 : A.I.R. 1936 Mad. 89:37 Cr.L.J. 159. We are in entire agreement with the decision in Perianna Muthirian v. Vengu Aiyar, 56 M. L. J. 208 : A. I. R. 1929 Mad. .21 : 30 Cr.L.J. 322 which was followed in Ravanappa Reddi v. Emperor, 55 Mad. 343 : A.I.R. 1932 Mad. 253 : 33 Cr.L.J. 361 Which again was followed in Re Appadurai Nainar, 59 Mad. 165: A.I.R. 1936 Mad. 89: 37 Cr.L.J. 159 where the proposition of law has been laid down that parties should not be allowed to evade the provisions of Section 195 (1) (b), Criminal P. C., by filing a complaint under another provision of the Penal Code if, clearly, an offence under Section 193, Penal Code, or any other section mentioned in Section 195 (1) (b), Criminal P. C., has been committed. This view is supported not only by the three cases adverted to above but also by Anatarvedi Sarma, In re, (1946) l M.L.J. 466 : A.I.R. 1946 Mad. 489 : 47 Cr.L.J. 1034, Chinnayya Goundan, In re, (1948) l M. L. J. 448 : A.I.R. 1948 Mad. 474 : 49 Cr.L.J. 737, Srinivasa v. Ramasami : AIR1945Mad9 , Subramanya Aiyar v. Swamikannu Chetty : AIR1933Mad413 , Somayya v. Satyanarayana, 1934 M.W.N. 694 and Gopalaswami v. Emperor, 1935 M.W.N. 1344.
12. But the question is does this principle apply where on the same set of facts, an offence under Section 499, Penal Code, as well as one for) which a complaint is required under Section 195 (1) (b), Criminal P.C., are both committed? Sections 195 to 198, Criminal P. C., deal with the conditions requisite for taking cognisance of cases by Courts and Section 195 enumerates :the classes ofcases dealing with contempt of lawful authority of public servants, false evidence and offences against public justice, as well as using as genuine a false document, counterfeiting device or mark used for authenticating documents, etc. Section 196, Criminal P. C., deals with prosecution ofoffences against the State and Section 196A, Criminal P.C., with prosecution for certain classes of criminal conspiracy. Section 197, Criminal P. C.,deals with prosecution of Judges and public servants; Section 198, Criminal P. C,, with prosecution for breach of contract, defamation andoffences against marriage. Each of these sections deals with a separate class or classes ofcases and provides for different contingencies. Whereas under Section 195, Criminal P. C., the complaint should be by the public servant or Court, under SECTIONS 196 and 196A, Criminal P. C., the complaint should be under the authority of the Provincial Government or the officer empowered by the Provincial Government. In the caseof Section 197, Criminal P. C., the complaint should be after getting the previous sanction of the President or the Governor of the State. Allthese sections refer to offences against the public and do not have any concern whatever with crimes committed as against individuals. Section 198, Criminal P. C., makes it obligatory that for offences falling under chap. XIX or chap. XXI of the Penal Code, or under Sections 493 to 496 of the same Code, the aggrieved person must be the complainant. Therefore, what is sought to be complained against is an infringement of a personal right and in such a case no Court can take cognizance of a complaintexcept upon a complaint made by the person aggrieved. We have to decide as to whether, when the same set of facts or circumstancesconstitute an offence against public justice, say under Section 193, Penal Code, as well as an infringement of a personal right of the individual (sic)should be subordinated to the supreme interestsof the public as controlled by the State and whether a person can be permitted to invoke the provisions of Section 499, Penal Code, by filing acomplaint under Section 198, Criminal P. C., without having recourse to moving the Court, or the public officer concerned, before whom the offence under Section 193, Penal Code, was committed. On the facts of the case in Mallappa Goundan v. Chinnammal, I.L.R. (1942) Mad. 158 : A.I.R. 1942 Mad. 19 : 43 Cr. L. J. 44l there was no finding by the Court before which the defamer had given evidence that what he had stated was false evidence punishable under Section 193, Penal Code. All that is gatherable from the report of the case is that the defamatory words were uttered by the defamer when giving evidence in support of a complaint filed by him tothe effect that his wife had been guilty of theft. The Court before which that evidence was given did not give a finding that the complainant-witness had committed an offence under Section 193, Penal Code. Such being the case, the view adumbrated by the learned Judges that the provisions of Section 195, Criminal P. C., do not apply to defamation and that a person who is defamed by a witness when in the witness-box is at liberty to file a complaint against his defamer, cannot be said to be unjustified, and has got to be upheld. If the Court before which the evidence had been given had come to a conclusion that the evidence was false, which evidence at the same time amounted to a defamatory statement as well, in such a case the question as to whether the supreme interests of the public as controlled by the State should override the personal right of the individual, would have to be considered. As the decision stands, we cannot say that the ruling in Nallappa Goundan v. Chinnammal, I. L. R. (1942) Mad. 158 ; A. I. R. 1942 Mad. 19 : 43 Cr. L. J. 44l is unsound. The three cases decided by Lakshmana Rao J. are referred to in Nallappa Goundan v. Chinnammal, I. L. R. (1942) Mad. 158 : A. I. R. 1942 Mad. 19 : 43 Cr. L. J. 44l viz., Shanmugasundaram Pillai v. Manicka Mudaliar, 1939 M. W. N. 192 : A. I. R. 1939 Mad. 368 : 40 Cr. L. J. 642; Ganapathi Asari v. Kuppuswamy Asari, 1939 M. W. N. 320 : A. I. R.1939 Mad. 493 : 40 Cr. L. J. 757 and Ramaswami Konar v. Nachiar Ammal, 1940 M.W.N. 867. In two out of the three cases decided by Lakshmana Rao J. there had been a finding by the Court before which the evidence was let in that the party had given false evidence. Under those circumstances, Lakshmana Rao J. held that without a complaint by the Court under Section 193, Penal Code, the party aggrieved should not be allowed to take advantage of the provisions contained in Section 499, Penal Code, and prosecute the defamer for an offence under Section 499, Penal Code. The following cases viz., Krishna, Row v. Appaswami Aiyar, 1 Weir 585, Venkataramanjulu Chetty v. Kanniah Chetty, 1933 M. W. N. 1263, Segu Moideen v. Sheik Muhammad, 1936 M.W.N. 490 and Muhammad Isa v. Nazim Hussain : AIR1940All246 are all cases where it has been held that if the defamatory words were uttered in the course of giving evidence in a judicial proceeding, then there is no necessity for the filing of a complaint by the Court if the aggrieved person seeks recourse to a criminal prosecution for an offence under Section 499, Penal Code. The question then arises as to what shall be the position when there is no finding by the Courtas to the falsity or otherwise of the evidence given or statements made by the witness. For example, let us take a case where the Court has had no opportunity of adjudging whether the alleged defamatory statement amounted to giving false evidence at all as for instance where, after the evidence was given the proceedings were withdrawn without affording an opportunity for the Court to pronounce upon the truth or otherwise of the statement, or a case where the Court found that the statement is not false but at the same time it may be defamatory. In such a case, it is impossible for the Court to file a complaint under Section 195, Criminal P. C. Can it be said that the personal right of the aggrieved party, i.e., the party defamed, will be taken away by the non-existence of a complaint by Court? In our opinion, it cannot be. The only way of reconciling the various decisions of this and the other High Courts is to confine the pre-requisite of a complaint by the Court, where the statement amounted to false evidence as well as to defamation, to cases where the Court or the public officer before whom the evidence was given on oath has already found, in the judicial proceeding, that such statement was false. If that were so, the aggrieved person who claims to have been defamed should not be permitted to proceed with a complaint of defamation without a complaint by the Court. But we think any such reconciliation will defeat the very purpose and object of Section 198, Criminal P. C. For, after all the Court can file a complaint only in respect of offences mentioned in Section 195, Criminal P. C., and the offence of defamation is not one mentioned by the said section. The aggrieved party must be left to his own right and remedy as it will not be within the province of the Court to prosecute for private wrongs.
13. Mr. Nambiar contends that even where the Court has found that an offence under Section 193, Penal Code, has been committed, still, if the party defamed wants to proceed against the deponent of the false evidence on a charge of defamation, there can be no impediment even if a complaint by Court has not been filed. For this argument he placed reliance upon the distinctive nature of the two offences, via., that of giving false evidence and of defamation. The ingredients of the one cannot be said to be the ingredients of the other; nor can it be said that the offence of false evidence relates to the same group as that of defamation. The learned counsel invites our attention to the observations of the Calcutta High Court in Ramsewak Lal v. Muneswar Singh, 37 Cal. 604 : 6 I. C. 352 and to the Full Bench Judgment of the same Court in Satish Chandra v. RamDoyal, : AIR1921Cal1 . He also stresses that the Federal Court in Hori Ram Singh v. Emperor has held that where a person has committed two offences 'one of which can be tried only with the pre-requisite of a sanction by the Government and the other can be tried without such a sanction, it is possible to try the case for which no sanction is necessary and convict the offender. Observations of Sulaiman J. and Varadachariar J. in that case were relied upon. What their Lordships held was that if a public servant were to commit the offence of embezzling property entrusted and thereby commits a breach of trust under Section 409, Penal Code, it cannot be said that he is doing an act or purporting to do an act in execution of his duty as a servant of the Crown. But where he falsifies an account and thereby commits an offence under Section 477-A, Penal Code, he is certainly purporting to act, though not actually acting, in the execution of his duty. The case there is a converse one for the reason that the more serious offence under Section 409, Penal Code, does not require any sanction by the authority under whom the public servant was working and it seems to us that not much support can be gained for the proposition enunciated by the learned counsel from the observations of their Lordships of the Federal Court. The other case on which he places reliance is the Full Bench decision in U Aung Pe v. The King, A.I.R. 1938 Rang. 232 : 39 Cr. L. J. 663 where the decision was that there is no exception to Section 499, Penal Code, saying that when the defamation is made in a statement to a public servant or in Court proceedings, by virtue of which the offence was punishable under Section 182 or Section 211, Penal Code, or some other section, then no prosecution under Section 500, Penal Code, would lie, and hence a complaint under Section 500, Penal Code, cannot be dismissed even if the same facts constitute also an offence under Section 182 and sanction required by Section 195, Criminal P. C., is not obtained. Even here there was no finding given by the Court before which the defamatory statement was made that an offence under Section 193, Penal Code, had been committed.
14. Mr. Jayarama Ayyar, on the other hand, wants us to follow the observations contained in Prafulla Kumar v. Harendra Nath, 44 Cal. 970 : AI.R. 1917 Cal. 708 : 18 Cr. L. J. 377 as well as the observations of Rankin C. J. and Ghose J. in Ibrahim v. Emperor, 111 I. C. 433 : 29 Cr. L. J. 849 both of which were considered by a single Judge, Sen J. in Bishan Singh v. Ram Nagina Singh, : AIR1950Cal77 . In our opinion, in view of the dissenting note sounded in Satish Chandra Chakravarti v. Ram Doyal, 48 Cal. 388 : : AIR1921Cal1 , Prafulla Kumar v. Harendra Nath, 44 Cal. 970 : A. I. R. 1917 Cal. 708 : 18 Cr. L. J. 377 cannot be considered as good law, even though Sen J. in Bishan Singh v. Ram Nagina, : AIR1950Cal77 was of a contrary view. Both in Prafulla Kumar v. Harendra Nath, 44 Cal. 970 : A.I.R. 1917 Cal. 708 : 18 Cr. L. J. 377 and Bishan Singh v. Ram Nagina Singh, : AIR1950Cal77 there had already been a finding by the Court before which the evidence was given that the testimony was false and therefore an offence under Section 193, Penal Code, had been committed. So far as Ibrahim v. Emperor, 111 I. C. 433 : 29 Cr. L. J. 849 is concerned, there was an adjudication that the complaint was false. Though on the facts of the particular cases, the decisions in Ibrahim v. Emperor, 111 I. C. 433: 29 Cr. L. J. 849 and Bishan Singh v. Ram Nagina Singh, : AIR1950Cal77 can be justified as correct, we cannot, in view of the Full Bench judgment in Satish Chandra Chakravarti v. Ram Doyal, 48 Cal. 388 : : AIR1921Cal1 subscribe to some of the very wide observations contained in these judgments.
15. Another case on which the learned counsel for the respondent places some reliance is in Guru Prosad v. Rameswar, : AIR1938Cal527 where Jack and Khundkar JJ. following Satish Chandra v. Ram Doyal, 48 Cal. 388 : : AIR1921Cal1 were of opinion that since the Legislature has not chosen to include Section 500, Penal Code, amongst those sections in which the prosecution must be initiated by the Court in connection with which the offence hasbeen committed, there is no provision of law by which the Court can refuse to permit aprosecution under Section 500, Penal Code, where the facts appear to justify such a prosecution, on the ground that the proceedings have not been initiated under Section 476, Criminal P. C., by the Court before which the offence is alleged to have been committed and that the prosecution is designed to evade the provisions of Section 195, Criminal P. C. This, decision only reiterates what has been exhaustively considered by Mukerjee A. C. J. in Satish Chandra v. Ram Doyal, 48 Cal. 388 : : AIR1921Cal1 . If the offences of giving false evidence in a judicial proceeding and defamation do not belong to the same genus, but are distinct and separate in their characteristics and ingredients, we are not able to perceive any serious inhibition by the Criminal Procedure Code for initiation and trial of one of these offences independently of anterior resort to fulfilling the conditions necessary to commence a prosecution for the other. Therefore it is not possible to hold that Section 195, Criminal P. C., should supersede the later provision in Section 198, Criminal P. C.
16. My conclusion therefore is that even when the Court before which the alleged defarmer had given evidence finds that the deposition is false, it is open to the person defamed to institute proceedings under Section 499, Penal Code, without the Court filing a complaint in accordance with the provisions laid down in Section 195, Criminal P. C. All the more so is such a complaint unnecessary where a defamatory statement is made by a witness in the course of a judicial proceeding and the Court has not adjudicated upon the truth or falsity of it, or where the Court was deprived of an opportunity of so adjudicating; in all such cases it is open to the party defamed to take proceedings under Section 499, Penal Code. It is not essential to emphasise the point of difference (viz.) that the prior decision by the Court regarding the falsity of the statement made would deprive the party defamed from proceeding with the complaint. In the present case, the Subordinate Judge of Kumbakonam has not even adjudicated upon the allegations made in the affidavits and therefore it is premature to say that an offence under Section 198, Penal Code, has been committed.
17. It has been pressed upon us that if a party against whom a witness deposes is permitted to run to a criminal Court and file a complaint of defamation, then, the safeguard of protection given to witnesses would be lost and that even truthful and honest witnesses would be reluctant to come forward and give evidence. We do not think that the picture so presented, is real. It is more than eight years since the decision in Nallappa Goundan v. Chinnammal, I.L.R. (1942) Mad. 158: A.I.R.1942 Mad. 19 : 43 Cr. L. J. 441 has been passed. No serious calamity has so far occurred. It is safer to depend upon the good sense of the common man rather than provide for extreme contingencies. Witnesses can always seek the protection of the Court under Section 132, Evidence Act, if they are compelled to answer questions involving defamatory answers. As I have already stated, in the present case as the Sub-Court has not even adjudicated upon the truth of the allegations contained in the affidavits, the criminal revision petition has to be dismissed and we order accordingly.
Balakrishna Ayyar, J.
18. One Narayana Ayyar, the accused in C. C. No. 2 of 1950 on the file of the Joint Magistrate of Kumbakonam is the petitioner before this Court. In October 1949 he filed an Exn. Appln. No. 383 of 1949 in the Court of the Subordinate Judge of Kumbakonam in which among other reliefs he prayed for; (1) the attachment of all the properties of Veerappa Pillai, the plaintiff in the suit; (2) an order requiring Veerappa Pillai to give security for certain amounts and (3) the appointment of a receiver. In support of this application he filed two affidavits in the course of which he alleged; ' (1) I am now reliably informed that there are several other claims of a very huge magnitude against the plaintiffs.' (2) Veerappa Pillai owed on 31-7-1949 over Rs. 42,000 to the Hanuman Bank and the balance due to the bank was still very large; (3) Veerappa Pillai had borrowed largo amounts from several other persons; (4) Veerappa Pillai's properties consisted largely of shares which ','are' of no value now,' and his immovable properties were only of insignificant worth; (5) there are various criminal charges against him; (6) Veerappa Pillai was in such embarrassed circumstances that 'I am reliably informed that he is arranging to dispose of all his properties and secrete the money so as to defraud me and the other creditors; ' and (7) it was understood that the Official Liquidator, Madras, was about to institute proceedings against Veerappa Pillai for the appointment of a receiver. Narayana Ayyar also prayed in his affidavit that after the Court had effected the attachment of some buses in the possession of Veerappa Pillai the District Superintendent of Police, Tanjore, should be informed of the fact as
'I am afraid that to frustrate the application that is now filed by me the plaintiff may collude with his friends and agree to the ownership being transferred to third parties and if the District Superintendent of Police, Tanjore, orders the transfer it will be later difficult for the receiver to run the buses even if one is appointed.'
19. According to Veerappa Pillai, all these allegations and others, appearing in the affidavits of Narayana Ayyar, are false and defamatory and were made maliciously in order to lower his reputation. He therefore filed a complaint under Section 500, Penal Code, against Narayana Ayyar before the Joint Magistrate, Kumbakonam. The Magistrate recorded a sworn statement from Veerappa Pillai and thereafter took the complaint on file under Section 500, Penal Code, and issued processes. After Narayana Ayyar appeared before the Magistrate, a petition was filed on his behalf raising a preliminary objection to the jurisdiction of the Magistrate on the ground that since the averments in thecomplaint of Veerappa Pillai 'primarily disclose offences which come within the purview of Section 195, Criminal P. C.,' a complaint by the appropriate Court was necessary and that in the absence of such a complaint the accused should be discharged under Section 253 (2), Criminal P. C. The learned Magistrate overruled this objection and Narayana Ayyar has now come to this Court to have that order quashed.
20. The main question of law that we have now to determine is whether when the allegations in a private complaint are tantamount to an accusation of an offence which falls both under Section 193 and Section 500, Penal Code, a complaint of the Court is necessary where the prosecutor desires to proceed only in respect of the offence under Section 500, Penal Code. On this question there has been a sharp cleavage of opinion and that is why this case has been referred to a Full Bench.
21. A large number of decisions was cited on both sides but it is unnecessary for me to examine them. In the judgment which he has just delivered, my learned brother Govinda Menon J. has reviewed them as comprehensively as is possible. It is therefore sufficient for me to say which of the two opposing views I prefer and why.
22. Mr. K. S. Jayaram Aiyar, the learned advocate for the accused argued that in this country a witness is entitled to absolute privilege against proceedings both civil and criminal. In support of this view he referred to some of the earlier decisions of this Court two of which are reported in Manjaya v. Sesha Shetti, 11 Mad. 477 : l Weir 586 and In the matter of Alraja Naidu, 30 Mad. 222 : 6 Cr. L. J. 130.
23. But all these decisions are seen to be based on a rule of the English Common Law which though it still holds good so far as civil proceedings are concerned, has ceased to apply to criminal proceedings. As has been explained in the later decisions of this Court, vide Gopal Naidu v. Emperor, 46 Mad. 605 : A. I. R. 1923 Mad. 523 and Tiruvengada Mudali v. Tripurasundari Ammal, 49 Mad. 728 : A.I.R. 1926 Mad. 906 : 27 Cr. L. J. 1026 the rule of the English Common Law has in this respect been superseded by the provisions contained in the Penal Code. The Penal Code insists on good faith and does not confer absolute privilege on witnesses when they are being proceeded against in a criminal Court for defamation. Where a law on a particular subject has been codified by statute, it is not permissible to add to it, or subtract from it or modify it by referring to the earlier rules of the Common Law which occupied the fieldbefore the enactment of the Statute. The resulting position is no doubt anomalous that where a witness is being sued in tort for damages he can plead absolute privilege bat that when he is being prosecuted before a criminal Court and therefore presumably placed in greater peril, his privilege should be more qualified and his protection correspondingly circumscribed. But, as has been pointed out in some of the decisions, that anomaly can be rectified only by the legislature.
24. Mr. Jayaram Aiyar next contended that the accused in the present case has only filed an affidavit in Court and that, therefore, there has been no. 'publication' of the defamatory matter and in support of this argument referred to same passages in the decision in Dawkins v. Lord Rokerby, (1873) 8 Q. B. 255. But the observations read out by Mr. Jayaram Aiyar stem out of the peculiarities of the English Law and it does not appear that these observations have been followed by any Court in this country. This argument also must be repelled.
25. Mr. Jayaram Aiyar next elaborated an argument based on Section 195 (1) (b), Criminal P. C. So far as is now material that section runs as follows.
'No Court shall take cognizance........... (b) of anyoffence punishable under any of the following sections of the same Code, namely Sections 193 to 211 when suchoffence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court .....'
The word offence has been defined in Section 4(c) of the same Code as :
'Any act or omission made punishable by any law for the time being in force :....'
Now, argued, Mr. Jayaram Aiyar, if we insert the definition of 'offence' occurring in Section 4(c) in Section 195(1)(b), the passage will read as follows :
'No Court shall take cognizance of any act or omission made punishable under Section 193 except on the complaint in writing of the Court.' In other words, where, the act or omission falls under Section 193, Penal Code, a complaint of the Court is necessary.
26. This argument looks straightforward and attractive but if followed to its logical end it would produce some very startling results. Section 198, Criminal P. C. enacts that:
'No Court shall take cognizance of an offence falling under Chap. 21, Penal Code .... except upon a complaint made by some person aggrieved by such offence.'
Chapter 21, Penal Code, is the one dealing with defamation. Now, if the argument of Mr. Jayaram Aiyar on this point were sound, and if a complaint of the Court were necessary in respect of an offence on the ground that it falls under Section 193, it would also follow that a complaint of the person aggrieved would be necessary if the alleged illegal act or omission falls under Section 600, Penal Code also. That means that where an offence falls both under Section 193 and under Section 600, Penal Code, two complaints would be necessary one by the Court and the other by the person aggrieved. Now, it is perfectly evident that the Criminal Procedure Code does not envisage such a situation, It would mean that where a witness has committed perjury by making a statement which is at the same time defamatory it will be impossible for the Court to prosecute the offender except with the concurrence of the person defamed. It has to be borne in mind here that though there are provisions in the Code which enable an aggrieved person to move the Court to lay a complaint under Section 193, Penal Code--he can proceed by way of an application under chap. 36 of the Code--it does not contain any provision whereby the Court can obtain the concurrence of the person aggrieved by the making of a defamatory statement. It is not to be supposed that if the Legislature intended that there should be two separate complaints it would not have made some clear provision for co-ordinating the two complaints and the further conduct of the prosecution. If the argument of Mr. Jayaram Aiyar is accepted two complaints would, as already stated, become necessary ; who would then be in charge of the prosecution? Who would decide which witnesses should be examined and which witness given up? The Public Prosecutor representing the State and the Court or the private party and his advocate? It is easy to see that there will be an impasse.
27. This is not the only aspect of the matter. An offence under Section 193, Penal Code, is not compoundable under any circumstances while an offence under Section 600, Penal Code, can be compounded by the person defamed even without the leave of the Court. If, therefore, the contention of Mr. Jayaram Aiyar is acceded to, it would become possible for a person who is being prosecuted for perjury to circumvent the prohibition against the compounding of such an offence, by compounding the offence of defamation with the person aggrieved. He could thus effectively bar a prosecution under Section 183, Penal Code. It is a familiar rule that you cannot do indirectly what you are prohibited from doing directly and an argument which would enable an accused person indirectly to compound a non-compoundable offence cannot be countenanced.
28. The difficulty raised by the argument of Mr. Jayaram Aiyar would apply not merely to an offence under Section 193, it would extend to a series of other offences enumerated in Sections 195 to 199, Criminal P. C. I would mention onlyone more. Let us take for instance a case where X goes to a Magistrate and falsely states on oath that A murdered B. Now by making such a false statement, X would have committed three offences; he would have committed perjury under Section 193; he would have made a false charge with intent to injure, punishable under the 2nd part of Section 211, Penal Code, with imprisonment for a period of seven years; he would have also defamed A. Now, if the view that Mr. Jayaram Aiyar pressed before us were accepted, X could compound the offence of defamation with A and thus effectively prevent his being prosecuted either for the offence under Section 193 or for the offence under Section 211, Penal Code. It is thus clear that the contention put forward by Mr. Jayaram Aiyar would permit the law to be evaded in a manner and in circumstances which the Legislature could never have intended.
29. These considerations suggest that the better view would be that where an offence falls both under Section 193 and under Section 500, Penal Code, a prosecution under Section 600, Penal Code, would lie without a complaint by a Court for the offence under Section 193. One objection to this view would be that to a certain extent it would enable a private individual to circumvent the prohibition imposed by Section 195 (1) (b), Criminal P.O., against prosecuting a person for an offence under Section 183, Penal Code, without the leave of the Court. It must be recognised that to some extent this is so. But then this does appear to be a contingency which if not manifestly envisaged is provided for in our criminal law. Section 235 (2), Criminal P. C. enacts :
'If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.'
Section 403 (1) and (2) run as follows :
'(1) A person who has been once tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 286, or for which he might have been convicted under Section 237.
(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1).'
It will be seen from these provisions that though they prohibit a person who has been tried and either acquitted or convicted from being again prosecuted for an offence for which a different charge might have been framed against him under Section 236 or 237, Criminal P.C.they do not cover cases falling under Section 235(2) of the Code. Section 236 makes provision in respect of offences of such a nature that it is doubtful which of several offences the facts which can be proved will constitute as for instance whether the offence would amount to theft or receipt of stolen property or criminal misappropriation. Section 235 deals not with such cases but with cases where the acts alleged, constitute an offence falling under two or more different sections e.g., Sections 193 and 600, Penal Code, and others if any. Section 235, Criminal P. C. is not referred to in Section 403, Criminal P. C. This would suggest that if an act constitutes an offence falling under Sections 193 and 211 and 500, Penal Code, a conviction of an acquittal under Section 500, Penal Code, will not bar a prosecution for an offence either under Section 198 or under Section 211, Penal Code. Similarly a conviction or an acquittal with respect to an offence under Section 193, Penal Code, would not bar a subsequent prosecution for an offence under Section 211, Panel Code or Section 600, Penal Code. Likewise, a conviction or acquittal under Section 211 will not bar a prosecution for an offence under Section 193 or 600, Penal Code.
30. But, it might be objected that this would mean that for one and the very same act a person is liable to be punished several times over and this is manifestly unjust. But sufficient safeguard against any possible injustice exists in Section 71, Penal Code, the second para, of whichreads :
'Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished ..... the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.'
By applying this section we would get this result: A person who has by the same act committed an offence under Sections 193, 211 and 600, Penal Code, and who has been convicted and sentenced under either Section 193 or Section 211 and sentenced, let us suppose for seven years, would not, when he is subsequently prosecuted under Section 500, Penal Code, be given any additional sentence. If, on the other hand, he is first prosecuted and convicted under Section 500, Penal Code, and he is subsequently prosecuted under Section 193 or Section 211, Penal Code, the sentence imposed on the second conviction would not after taking into account the punishment already imposed exceed the maximum prescribed for the offence under Section 211, Penal Code.
31. Another objection that has been urged against the view that a complaint by a Court is not necessary is that witnesses who give evidence would have before them a standing threat of a prosecution for defamation; that this wouldnaturally make them hesitate to speak the truth and that the administration of justice, with which the interests of the community are bound up, would suffer. One answer to this objection is that this is really a matter of substantive law, that the Legislature, for reasons it thought sufficient, declined to grant absolute privilege to witnesses when it codified the criminal law on this matter, and that when the substantive law deliberately declined to confer absolute privilege it does not seem to be appropriate that the procedural law should be strained to confer such absolute privilege.
32. In the second place a certain measure of protection is conferred on witnesses by Section 132, Evidence Act, which after laying down that 'a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend, directly or indirectly, to criminate such witness, or that it will expose, or tend directly or indirectly, to expose, such witness to a penalty or forfeiture of any kind' goes on to provide that
'no such answer, which a witness shall be compelledto give, shall subject him to any arrest or prosecution,or be proved against him in any criminal proceeding,except a prosecution for giving false evidence by suchanswer,'
No doubt, there are observations in the decision in Peddabba Reddi v. Varada Reddi, 52 Mad. 432: A. I. R.1929 Mad. 236 : 30 Cr. L. J. 613 which suggest that before the protection conferred by this proviso can be claimed something more must appear than that a witness has been put into the box and sworn to tell the truth and nothing but the truth. It seems to us that the requirement of this section has been laid down too stringently in the above case. Ordinarily, when a witness is sworn and a question is put to him and no objection is raised to the question everybody expects him to answer it; the command of the Court to answer the question is implicit and there is nothing improper in inferring that the witness has been compelled to answer the question. Of course, the position would be different where the witness to whom a question is put makes a pretext for launching out into something wholly irrelevant. We think that where a question is put to a witness and no objection is taken to the question and his answer is a relevant answer to the question, we may properly presume that he has been compelled to answer the question within the meaning of the proviso and that therefore he cannot be prosecuted.
33. If Section 132, Evidence Act, is understood in this manner the risk of witnesses being threatened with vexatious prosecutions would be practically confined to cases where they havesworn to affidavits. These figure more in civil proceedings than in criminal, and even there only in respect of matters in which viva voce examination of the witnesses is considered unnecessary and proof by affidavit sufficient. If the position be such that it is necessary to make in an affidavit a statement that might expose the person making it to a prosecution under 8. 500, Penal Code, it is always open to the party who wants to avail himself of such evidence to move the Court to examine the witness viva voce when Section 132, Evidence Act, will come into operation. We recognise that there would still be a residuary field wherein persons who swear to affidavits would run the risk of being prosecuted for defamation ; but it is to be doubted whether the risks are large and in any case that would be a matter for the Legislature.
34. For these reasons, we take the view that where an alleged offence falls both under Sections 193 and 500, Penal Code, a complaint of the Court is not necessary to enable a Magistrate to take cognizance of a complaint under Section 500, Penal Code, alone.
35. It follows that the revision petition must be dismissed.
Basheer Ahmed Sayeed, J.
36. I agree with my learned brother Govinda Menon J. and I wish to add only a few words. The Common Law of England allows an absolute privilege, both in the criminal and civil spheres, to advocates, parties and witnesses in regard to statements and averments made and evidence given in the course of any judicial proceedings. When such is the state of law in English society which is one of the most advanced societies, in every respect, one would very much wish that in our country, where the society has yet to make considerable advance in education and other spheres of life, the state of law had been similar. Actually, such was the position prior to the decision in Gopal Naidu v. Emperor, 46 Mad. 605 : A. I. R. 1923 Mad. 523, notwithstanding the fact that the criminal law in force in the country had been codified long prior thereto. But after that decision, such absolute privilege obtains only in the civil sphere in regard to statements and averments made and evidence given in the course of judicial proceedings. However eminently desirable it may be that such absolute privilege should also be made available in the field of criminal law, in the interests of the promotion of justice, in so far as the Full Bench decisions in Gopal Naidu v. Emperor, 46 Mad. 605 : A. I. R.1923 Mad. 523 and Tiruvengada Mudali v. Tirupurasundari Ammal, 49 Mad. 728: A.I.R. 1926 Mad. 906: 27 Cr. L. J. 1026 have held that the criminal law in this countryhaving been codified, the common law doctrine could not be imported any more in this country, they leave no room for us to hold that there is anything more than a qualified privilege available to parties and witnesses in regard to statements and averments made and evidence given in the course of judicial proceedings. Until the law is amended by the competent Legislature they must hold the field and we are bound by these decisions.
37. But the question which is referred to us for decision is whether any statement or averment made in the course of judicial proceedings, whether false or true, could be made the subject-matter of a criminal prosecution by the person aggrieved, when the said statement or averment or evidence is also capable of being brought within the scope of Section 193, Penal Code, without a complaint being given by the Court before which the statement or averment was made or evidence given. This point has been elaborately dealt with by my learned brother Govinda Menon J., and I think, in view of the authorities discussed by him, the only safe conclusion to arrive at is to give an answer to the question in the affirmative. The answer has to be in the affirmative notwithstanding the fact that this is likely to give enough room for abuse of the process of law by parties to litigation such abuse tending not merely to harass opposing parties and their witnesses but also to defeat and delay the ends of justice. My learned brother, Balakrishna Aiyar J. however thinks that there is sufficient protection afforded to witnesses and parties by the provisions contained in Section 132, Evidence Act, and other provisions of the criminal law, and that if witnesses seek to avail of these there need be no difficulty in securing immunity from harassment by criminal prosecution. But how far Section 132, Evidence Act, should be availed of by parties or witnesses giving evidence by means of affidavits or averments in plaints and written statements is a doubtful matter. However that be, it seems to me that a negative answer to the question referred to us will be fraught with more serious consequences in the shape of unjustly affecting the rights of individual citizens to vindicate the wrongs done to them by statements and evidence of a nature tending to damage the reputation and character of parties. It is unnecessary for me to say that it is within the province of the Legislature to prevent the abuse of the process of law in this matter by amending Section 195, Criminal P. C., in a suitable manner. In the result this petition must be dismissed.