1. This is an appeal from the judgment and decree of the Additional Subordinate Judge at Burdwan in. a suit for defamation in which he has given the plaintiff a decree for Rs. 500 with costs.
2. It appears that the defendant was appointed Receiver to 'the joint estate of the Searsol Babus and that the plaintiff, a lady co-sharer in that estate, has in addition a large separate estate of her own.
3. Her manager Chandra Mohan Das filed a petition in her name making allegations of the grossest dishonesty against the defendant and asking for his removal from the Receivership. The defendant was called upon by the Court for an explanation and the explanation he submitted is couched in the most inflated and exaggerated language showing that he has an imperfect knowledge of English idiom and has a very great feeling of rancour towards Chandra Mohan Das, against whom there is in the explanation a great deal which, if not privileged, is most defamatory.
4. It appears that Chandra Mohan Das prosecuted the defendant criminally and the latter compromised the case and was acquitted. The present case is in respect of certain reflections on the lady which are set out in the Subordinate Judge's judgment and which seem to cover all the allusions there are to the lady in the lengthy explanation. The lady, who was only told by her servants what the explanation contained, appears to have got the idea that she is charged with being an idiot, incompetent and perfectly worthless and she brought this suit accordingly.
5. The words used do not appear to be in themselves defamatory except in so far as they cast reflections on her management of her independent estate upon which the defendant had no right to comment. This is the first point pressed before us in appeal and it is not necessary to consider it further. The second point is that the explanation is absolutely privileged being the written statement of a party in a judicial proceeding.
6. The third point is that it is protected by qualified privilege being made in self-defence in answer to an attack. Even, therefore, if the words used go beyond the occasion and are in themselves defamatory, it is for the plaintiff to prove malice affirmatively. The fourth point is that the lady was not examined in Court and the real meaning of the words used was not explained to her and she is not, therefore, able to affirm that she has suffered any damage.
7. This last point is immaterial.
8. The two questions of privilege are the important points for the purpose of disposing of the case. The explanation was called for in a proceeding, filed in the Partition Suit No. 333 of 1896, the Receiver being appointed pendente lite, for his removal.
9. This is a judicial proceeding and any order made thereon is appealable to the High Court.
10. Under the well-known and long established rules of law in England, the occasion would be absolutely privileged as Lopes, L.J., says in Royal Aquarium v. Parkinson (1892) 1 Q.B. 431 at p. 451 : 61 L.J.Q.B. 409 : 66 L.T. 513 : 40 W.R. 450 : 56 J.P. 404.
11. The authorities establish beyond all question that neither party, witness, counsel, jury, nor Judge can be put to answer civilly or criminally for words spoken in office; that no action of libel or slander lies, whether against Judges, counsel, witnesses or parties for words written or spoken in the course of any proceedings before any Court recognized by law and this though the words written or spoken were written or spoken maliciously, without any justification or excuse, or from personal ill-will and anger against the person defamed'. The Court has the power and ought to have the will, to check any abuse of this privilege by those who appear before it. What the Subordinate Judge to whom the explanation was submitted ought to have done was not to read it out in open Court nor to give a copy of it to the plaintiff, but he ought to have returned it to the Receiver pointing out that it must be couched in language which was not defamatory of any one and kept within the limits of the matters to which he had to answer. The case of Haidar Ali v. Abru Mia 32 C. 756 : 9 C.W.N. 911 : 2 C.L.J. 105 : 2 Cr. L.J. 459 does not touch the matter before us. That was a case of a voluntary statement made by a witness in the box which, there was previous authority for holding, was not within the proviso to Section 132, Evidence Act. Whether this ruling is inconsistent with the rule laid down by Lopes, L.J., we need not enquire as the case before us is excepted from the rule by the Indian authority of Augada Ram Shaha v. Nemai Chand Shaha 23 C. 867. We are, therefore, of opinion that absolute privilege does not apply to this case. Nor upon the same authority would it be an occasion of qualified privilege under the well-known English rule that whenever the defendant has an interest in the subject-matter of the communication and the person to whom the communication is made has some duty to perform in the matter, the occasion is privileged.
12. That rule appears to be no longer of any effect in India as the Indian Penal Code has expressly made all defamatory statements the subject of Criminal prosecution unless they fall within the exceptions to Section 499.
13. Had the matter been res Integra, one of us would have been inclined to hold that a provision in a penal statute should not be allowed to override those well-known principles of the Common Law which are applicable to Civil cases in India where there is no statutory provision to the contrary.
14. But we feel ourselves bound by the decision of this Court in Augada Ram Shaha v. Nemai Chand Shaha 23 C. 867, which has never been dissented from and the principle of which has been followed in Kali Nath v. Gobinda Chandra 5 C.W.N. 293 and in Emperor v. Ganga Prasad 29 A. 685 at p. 706 : A.W.N. (1907) 235 : 4 A.L.J. 605 : 6 Cr. L.J. 197. But we think under the circumstances that the damages awarded by the Subordinate Judge are very excessive and we accordingly modify his judgment and decree and award Rs. 100 only to the plaintiff as damages. Each party to bear its own costs in both Courts.