Alfred Henry Lionel Leach, C.J.
1. The petitioner was convicted by the Joint Magistrate of Karur under Section 500 of the Indian Penal Code for the defamation of his wife. He was ordered to pay a fine of Rs. 100 and in default of payment to undergo simple imprisonment for three months. The defamatory words had been uttered by the petitioner when giving evidence in support of a complaint filed by him to the effect that his wife had been guilty of theft. In the course of his evidence in support of the complaint he accused his wife of unchastity. They had quarrelled and she was living separately, but in the same building. The conviction of the petitioner was confirmed by the Sessions Judge of Trichinopoly on appeal. The petitioner now asks this Court to set aside the conviction on the ground that a complaint of defamation which is based on a statement in Court can only be filed by the Court in which the statement was made. There are conflicting decisions of this Court on the question. In three cases Lakshmana Rao, J., has expressed the opinion that the complaint must be filed by the Court, while Burn, J., has expressed an opinion to the contrary.
2. The first of the decisions by Lakshmana Rao, J., was given in Shanmughasundaram Pillai v. Manicka Mudaliar : AIR1939Mad368 . In that case the petitioner charged the son-in-law of the respondent with theft of certain documents and records and in an affidavit filed in support of an application for a search warrant stated that some of the articles had been secreted in the house of the respondent. A search warrant was issued and in accordance with this authority the respondent's house was searched. Nothing was, however, found there and the son-in-law was ultimately discharged. The learned Judge considered that as the complaint of defamation was founded on false evidence the offence would fall within Section 193 of the Penal Code and was only cognizable on a complaint by the Court. In support of his order Lakshmana Rao, J., relied on the decision of this Court in Appadurai Nainar In re : (1935)69MLJ812 , to which reference will be made presently. The learned Judge expressed a similar opinion in Ganapati Asari v. Kuppuswami Asari (1939) 1 M.L.J. 614 : 1939 M.W.N. 320 and in Ramaswami Konar v. Nachiar Ammal : (1940)2MLJ491 .
3. The opinion of Burn, J., was stated in Venkataramanjulu Chetti v. Kanniah Chetti (1933) M.W.N. 1263 and is to be gathered from the following excerpt from his judgment:
The mere fact that the defamation is committed in, or in relation to, criminal proceedings in a Court is not a reason for requiring the sanction of that Court or for requiring that Court to prefer a complaint.... The petitioner in this case has complained of the acts which have, according to him, caused harm to his reputation; he has no concern with the same acts in so far as they may have constituted an offence against public justice.
4. The provisions of Section 195 of the Code of Criminal Procedure do not apply to defamation. This Court has held in Tiruvengada Mudali v. Tripurasundari Ammal : AIR1926Mad906 , that a person who is defamed by a witness when in the witness-box is at liberty to file a complaint against his defamer under the provisions of the Indian Penal Code. When such a right exists it can only be taken away by an express statutory provision to that effect. There is nothing in Section 195 of the Code of Criminal Procedure, or in any other part of that Code, or in any other enactment which takes away this right.
5. We consider that an examination of the judgment in Appadurai Nainar, In re : (1935)69MLJ812 , does not render real support for the opinion that when a person is defamed in evidence given in support of an offence which falls within the purview of Section 195 of the Code of Criminal Procedure, the Court in which the defamation takes place must lay the complaint charging the witness with defamation. In Appadurai Nainar, In re : (1935)69MLJ812 , the facts were these. A Civil Court had held that a promissory note had been fabricated and had dismissed the suit. Thereupon the defendant, without asking the aid of the Civil Court, filed a complaint charging the maker, the writer and the attestors of the instrument with forgery, an offence falling in the circumstances within the mischief of Section 195 of the Criminal Procedure Code. On a preliminary objection being taken to the effect that the maker of the instrument could not, in view of the provisions of Section 195 (1) (c) of the Criminal Procedure Code, be charged, except on the complaint of the Court, the complaint so far as the maker was concerned was dismissed, but the Magistrate proceeded with the charge against the attesting witnesses. Madhavan Nair and Burn, JJ., held this to be wrong and stated that parties should not be allowed to evade the provisions of Section 195 (1) (b) of the Code of Criminal Procedure by filing a complaint under another provision of the Penal Code if an offence under Section 193 of that Code or of any other of its sections mentioned in Section 195 (1) (b), Criminal Procedure Code, had been committed. In that case the complaint was based on a forged instrument which had been given in evidence, and we do not read the judgment as placing in the same category a charge of defamation which is an entirely personal matter. That question was not under consideration.
6. We consider that the opinion expressed by Burn, J., in Venkataramanjulu Chetti v. Kanniah Chetti (1933) M.W.N. 1263 is preferable and it is to be remembered that Burn, J., was a member of the Bench which decided Appadurai Nainar In re : (1935)69MLJ812 . It is also in point to mention that the opinion of Burn, J., in Venkataramanjulu Chetti v. Kanniah Chetti (1933) M.W.N. 1263 accords with a much earlier decision of this Court and one given by a Bench. (See Krishna Rao v. Appasami Aiyar (1891) 1 Weir 585. There a Magistrate had held that the sanction of the Court was required to a proceeding for defamation in respect of a statement made in Court and as sanction had not been accorded dismissed the complaint filed by the person alleged to have been defamed. The complainant applied to this Court to correct the order in revision and this was done. In fact no attempt was made to support the Magistrate's order which was described by this Court as being untenable.
7. It may be mentioned that opinions which have been expressed by other High Courts support the opinion of Burn, J. See Satish Chandra Chakravarthi v. Ram Dayal De I.L.R.(1920) Cal. 388 (S.B.) Mohamed Isa v. Nazim Hussain I.L.R. (1940) All. 314 Mst. Binia v. Crown I.L.R. (1937) Nag. 338 and Chotelal v. Phulchand I.L.R. (1937) Nag. 425 .
8. The petition will be dismissed.