1. The appellant Mr. J.W. Hayes, a barrister by profession, appeals against a conviction for defamation under Section 500, Indian Penal Code.
2. It appears that on 2nd September 1891, Mr. Hayes was prosecuted for defamation, the complainant being Mr. Christian who is described as being a Minister of the Gospel. Mr. Hayes was represented by counsel and when Mr. Christian was in the witness-box, Mr. Hayes said to him 'yon cheated people at Hyderabad and had to leave the ministry.' For using this expression Mr. Hayes was prosecuted before the Court of the 1st Assistant to the Resident of Mysore and convicted under Section 500,. Indian Penal Code. Mr. Hayes through his counsel admitted that he used the defamatory words complained of but contended that being an accused person he was privileged. It is argued before us that an accused person is absolutely privileged as to any statement he makes or any words that he utters during the progress of the case and that no proceeding can be taken against him either civilly or criminally for any defamatory statement that he makes, and a number of English cases are cited in support of that proposition, Munster v. Lamb 11 Q.B. D. 588. being especially relied on. The utmost extent to which the English cases go is 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 recognized by law,' see Dawkins v. Lord Rokeby L. R 8 Q. B. 255. Although we are not bound to follow the English cases cited, yet we fully recognize the great importance of allowing the utmost freedom to counsel, parties and witnesses during the progress of a case and if the counsel for Mr. Hayes or Mr. Hayes if he had been defending himself had asked Mr. Christian in cross-examination whether in consequence of cheating people at Hyderabad he had not been turned out of the ministry, the question could not have been made the subject of a civil action nor could any criminal proceeding lie for defamation under Section 500, Indian Penal Code. It must be borne in mind that in India Act I of 1872 gives the court power to decide whether the witness shall be compelled to answer questions affecting the credit of such witness by injuring his character and the court has also power to prevent any question being put to a witness merely for the purpose of giving him annoyance. See Sections 146 to 152 of Act I of 1872.
3. In the case before us it is not contended that the words are true and it appears that Mr. Hayes at the time he uttered the words was not defending himself, neither was he called upon by the presiding Magistrate to answer or explain the charge made against him. Mr. Hayes therefore although appearing by counsel chose to interfere during the examination of a witness and to make grossly defamatory remarks respecting the character of such witness. It cannot therefore be said that Mr. Hayes used the words complained of in the ordinary course of any legal proceeding. We think therefore that even under the English cases cited the occasion on which Mr. Hayes used the words was not privileged. Mr. Hayes is however charged under Section 500 of the Indian Penal Code and we hold that the words are clearly defamatory and therefore fall within the section. We hold further that the occasion was not privileged, that the words were not uttered in good faith but maliciously and that Mr. Hayes is not protected by any of the exceptions to Section 499, Indian Penal Code. We therefore dismiss the appeal and confirm the conviction and sentence.