1. In this case, the accused, Kari Singh, who is the petitioner before us, was put on his trial before Maulvi Najum-ud-din, an Honorary Magistrate, on a charge under Section 147, Indian Penal Code. In the course of that trial, he presented a petition to the District Magistrate of Monghyr for a transfer of the case to another Court on the ground that he would not get a fair and impartial trial before the Honorary Magistrate. Paragraph 5 of that petition was as follows: That on the 17th Jane last, on the date fixed for hearing of this case, Mr. Macpherson and the Manager of Manjhoul Kothi, where some properties of the trying Honorary Magistrate have been leased out, came to the Court of the trying Magistrate and had some private talk with the Honorary Magistrate and the petitioner apprehends that the Manager of the Manjhoul Kothi was brought to put additional pressure on the trying Magistrate to induce him to convict the petitioner and that he cannot get a fair and impartial trial in that Court or in any other Court in Beguserai.'
2. The accused was charged under Section 499 of the Indian Penal Code with defaming Mr. Macpherson and also the Manager of Manjhoul Kothi (Mr. Finch) and has been in each case convicted and sentenced to pay a fine of Rs. 100 or in default to undergo three months' rigorous imprisonment. The accused made two applications to this Court in revision, one in each case. For some reason, a Rule was issued only in Mr. Finch's case, the question in Mr. Macpherson's case being left over for further consideration until after the disposal of the Rule so issued.
3. It has been found as a fact that the allegation above set out was untrue to the knowledge of the accused, inasmuch as neither of the gentlemen in fact came to Beguserai on the day alleged or had any conversation with the trying Magistrate.
4. The only question before us is whether the statement of the petitioner must be judged only by the provisions of Section 499, Indian Penal Code, or whether it was absolutely privileged.
5. The question in its broadest aspect has been the subject of a large number of judicial decisions in the High Courts of India and in no one of the Courts have such decisions been entirely uniform.
6. The statement here is not the statement of a person who is a mere witness or who is a party to a civil suit. It is the statement made by an accused person in the course of his trial upon a criminal charge. In view of the decisions to which we have referred, that fact may not be without its importance. It certainly makes it pertinent to observe that in a very recent case Pataraju Veknkata Raddy v. Emperor 23 M.L.J. 39; (1912) M.W.N. 476; 13 Cr. L.J. 275; 11 M.L.T. 416; 14 Ind. Cas. 659 not yet reported in the Indian Law Reports, a Full Bench of the Madras High Court, after a careful examination of the authorities, has held that the statement of an accused person in answer to a question by the trying Court is absolutely privileged. In another recent case in this Court Golap Jan v. Bhola Nath Khettry 38 0. 880 at p. 888; 11 Ind. Cas. 311; 15 C.W.N. 917 where the defamatory statement was made in a complaint preferred under the Criminal Procedure Code, the Chief Justice remarked 'but even if the complaint to the Magistrate was defamatory, still the complainant was entitled to protection from suit and this protection is the absolute privilege accorded in the public interest to those who make statements to the Courts in the course of and in relation to judicial proceedings.' The remark would apply with as great, or even greater, force to a statement made by an accused person.
7. We have said that the statement here was made in the course of criminal proceedings, but it was not made in the Court of the trying Magistrate by way of answer to the charge. It was made in the Court of the District Magistrate to support an application for transfer. The order we are about to make must not be understood as in any degree implying that we desire to weaken the sense of responsibility, which such applications entail. Sometimes they may be justified. Sometimes they may be mere devices for delaying justice. Or again they may be resorted to because it is thought that the trial Judge or Magistrate has, not improperly, from personal bias or from extraneous information, but on the Bench and judicially, as the case proceeded before him, formed, or provisionally formed, an opinion on the merits, favourable or unfavourable to one side or the other.
8. The authorities have been examined so often and with such differing results that we do not think that it would serve any useful purpose to traverse the same ground again upon this Rule. The controversy is of a character which can only be finally settled by an authoritative ruling of the Privy Council or by the Legislature. We refrain, therefore, from expressing an unqualified opinion upon the question of principle involved and we content ourselves with saying that in view of the two cases which we have specifically cited, the propriety of the conviction is at least open to serious doubt.
9. In that view of the matter, we make the Rule absolute, set aside the conviction and sentence and direct that the fine, if paid, be refunded.
10. A Rule in the same terms must be issued in Mr. Macpherson's case.