W. Comer Petheram, C.J. and Rampini, J.
1. The question we have to consider is, whether a statement made in the pleadings in an action, and which effects the caste of the person of whom it is made, is absolutely privileged in accordance with the rule of the English Common law, or whether it is subject only to the Indian Statute law which relates to defamation. The decisions of the various Courts in India on the point have not been uniform. The High Court of Bombay, in the case of Naihji Muleshvar v. Lalbhai Ravidat I.L.R. 14 Bom. 97, has held that the privilege is absolute; that of Allahabad, in Abdul Hakim v. Tej Chandar Mukarji I.L.R. 3 All. 815, that it is not; while that of Madras, though it has never decided the question judicially, would seem to agree with the High Court of Bombay : See Hinde v. Baudry I.L.R. 2 Mad. 13. The point does not appear to have ever come before this Court in a civil suit; but it has twice decided that, in such a case, the only privilege in a criminal proceeding is that provided by the exceptions to Section 499 of the Indian Penal Code : See Queen v. Pursoram Doss 3 W.R. Cr. 45, Greene v. Delauney 14 W.R. Cr. 27. These rulings are, we think, binding upon us, as we do not think it possible that a statement may be the subject of a criminal prosecution for defamation, and at the same time may be absolutely privileged, as far as the Civil Courts are concerned. But if there had been no authority on the point in this Court, we should have come to the same conclusion.
2. It is, we think, very doubtful whether any remedy for defamation was known to the Indian law before the passing of the Indian Penal Code in 1860. Gap. 21 of that Code created and defined the offence of defamation, and by Section 499 the publication of words which lower the character of a person in respect of his caste, is defamation, and subjects the publisher to punishment, unless it can be brought within one of the ten exceptions to the section. In making it criminal to defame another, the Legislature certainly made it illegal, and so made it a cause of action, if the person defamed was injured.
3. If the publication is within any one of the exceptions, it is not defamation at all, and is neither an offence, nor illegal under the Code; but, if it is defamation, nothing, but one or other of the reasons mentioned in the exceptions can prevent the publication from being criminal and consequently illegal. There is nothing in any one of the exceptions which can be strained so as to include any statement, whether relevant or not, which may be inserted in a plaint or written statement, or application to a Court, though it may well be that a statement which is essential to the cause of action, or to the defence, is protected by the 9th exception; but that exception cannot help the defendant in the present case, as the statement here complained of is not material to the cause of action in any way, and is, if untrue, a mere gratuitous insult.
4. In the case of Gonesh Dutt Singh v. Mugneeram Chowdhry 11 B.L.R. (P.C.), 321, 328 the Judicial Committee said that they agreed with the High Court that witnesses cannot be sued in a Civil Court for damages in respect of evidence given by them upon oath in a judicial proceeding. And they stated the reason to be 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 they should incur, if they give evidence falsely, should be an indictment for perjury. This dictum is said to establish the proposition that the same absolute privileges exist in this country as in England, and that, as the pleadings in an action would be absolutely privileged in England, they must be so here, We do not think the dictum establishes anything of the kind. The Judicial Committee, in the course of their remarks, do not mention the Penal Code; but it does not follow from that, that it was not present to their minds, and it may quite well be that the dictum in question was founded on the 9th exception to Section 499, as the evidence given by a witness on oath would certainly be within that exception, whenever his statement was relevant to the question in issue.
5. But however this may have been, it is evident, that the reason given by the Judicial Committee for saying that a suit cannot be maintained against a 'witness cannot apply to an irrelevant defamatory statement in a pleading, and, therefore, the dictum cannot compel us to hold that such a publication is absolutely protected. We think the learned Judge of this Court was wrong in thinking that such an action could, under no circumstances, be maintained, and the result will be that the appeal will be allowed, and the judgment of the District Judge restored with costs of both the hearings in this Court.