Authored By : William Comer Petheram, Robert Fulton Rampini

William Comer Petheram, C.J. and Robert Fulton Rampini, J.

1. The question we have to consider is, whether a statementmade in the pleadings in an action, and which effects the caste of the personof whom it is made, is absolutely privileged in accordance with the rule of theEnglish Common law, or whether it is subject only to the Indian Statute lawwhich relates to defamation. The decisions of the various Courts in India onthe point have not been uniform. The High Court of Bombay, in the case ofNaihji Muleshvar v. Lalbhai Ravidat I.L.R. 14 Bom. 97, has held that theprivilege is absolute; that of Allahabad, in Abdul Hakim v. Tej Chandar MukarjiI.L.R. 3 All. 815, that it is not; while that of Madras, though it has neverdecided the question judicially, would seem to agree with the High Court ofBombay : See Hinde v. Baudry I.L.R. 2 Mad. 13 [LQ/MadHC/1973/348] . The point does not appear tohave ever come before this Court in a civil suit; but it has twice decidedthat, in such a case, the only privilege in a criminal proceeding is thatprovided by the exceptions to Section 499 of the Indian Penal Code : See Queenv. Pursoram Doss 3 W.R. Cr. 45, Greene v. Delauney 14 W.R. Cr. 27. Theserulings are, we think, binding upon us, as we do not think it possible that astatement may be the subject of a criminal prosecution for defamation, and atthe same time may be absolutely privileged, as far as the Civil Courts areconcerned. But if there had been no authority on the point in this Court, weshould have come to the same conclusion.

2. It is, we think, very doubtful whether any remedy fordefamation was known to the Indian law before the passing of the Indian PenalCode in 1860. Gap. 21 of that Code created and defined the offence ofdefamation, and by Section 499 the publication of words which lower thecharacter of a person in respect of his caste, is defamation, and subjects thepublisher to punishment, unless it can be brought within one of the tenexceptions to the section. In making it criminal to defame another, theLegislature certainly made it illegal, and so made it a cause of action, if theperson 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 theCode; but, if it is defamation, nothing, but one or other of the reasonsmentioned in the exceptions can prevent the publication from being criminal andconsequently illegal. There is nothing in any one of the exceptions which canbe strained so as to include any statement, whether relevant or not, which maybe inserted in a plaint or written statement, or application to a Court, thoughit may well be that a statement which is essential to the cause of action, orto the defence, is protected by the 9th exception; but that exception cannothelp the defendant in the present case, as the statement here complained of isnot material to the cause of action in any way, and is, if untrue, a meregratuitous insult.

4. In the case of Gonesh Dutt Singh v. Mugneeram Chowdhry 11B.L.R. (P.C.) 321, 328 the Judicial Committee said that they agreed with theHigh Court that witnesses cannot be sued in a Civil Court for damages inrespect of evidence given by them upon oath in a judicial proceeding. And theystated the reason to be that it concerns the public and the administration ofjustice that witnesses giving their evidence on oath in a Court of Justiceshould not have before their eyes the fear of being harassed by suits fordamages; but that the only penalty they should incur, if they give evidencefalsely, should be an indictment for perjury. This dictum is said to establishthe proposition that the same absolute privileges exist in this country as inEngland, and that, as the pleadings in an action would be absolutely privilegedin England, they must be so here, We do not think the dictum establishesanything 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 wasnot present to their minds, and it may quite well be that the dictum inquestion was founded on the 9th exception to Section 499, as the evidence givenby a witness on oath would certainly be within that exception, whenever hisstatement was relevant to the question in issue.

5. But however this may have been, it is evident, that thereason given by the Judicial Committee for saying that a suit cannot bemaintained against a "witness cannot apply to an irrelevant defamatorystatement in a pleading, and, therefore, the dictum cannot compel us to holdthat such a publication is absolutely protected. We think the learned Judge ofthis Court was wrong in thinking that such an action could, under nocircumstances, be maintained, and the result will be that the appeal will beallowed, and the judgment of the District Judge restored with costs of both thehearings in this Court.

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Augada Ram Shaha and Ors. vs. Nemai Chand Shaha (29.06.1896- CALHC)