Shivdayal, J.

1. Gayaram, Shivlal and Narad were prosecuted by Smt Shanti Kunwar under section 500/120-B, Penal Code, for defamation and conspiracy. All the three were convicted under section 500, Penal Code, and sentenced to pay a fine of Rs. 500/ each; in default, to suffer rigorous imprisonment for six months. On appeal, the learned Additional Sessions Judge maintained the conviction but reduced the sentence of fine to Rs. 250/ each, or, in default to undergo simple imprisonment for three months each.

2. Smt. Shanti Kunwar had, earlier, filed a complaint in the Court of the Magistrate 1st Class, Sarangarh, against one Lodha Panika under sections 323, 342 and 354, Penal Code (Criminal Case No, 93/1959). In that case, she alleged that the accused Lodha outraged her modesty by pulling off her sari and holding her by hand at a public place and also beat her and kept her in wrongful confinement. In that case, Gayaram, Shivlal and Narad (revision petitioners) were produced as defence witnesses. They made statements to the effect that Smt. Shanti Kunwar had not only intimacy with Lodha but also had by her conduct and expression declared herself to be his concubine. Smt. Shanti Kunwar is a widow and is possessed of 17 acres of land. The witnesses were not believed by the trial Court in that case and Lodha Panika was found guilty of all the offences and was sentenced to four months rigorous imprisonment on each count, vide Ex. P-1.

3. Smt. Shanti Kunwar then filed a complaint against the revision-petitioners on the basis of their statements in the above mentioned case and it has been further alleged in the present case that the three accused told her caste fellows in the village that she was corrupt and unchaste and incited them to cut off all social relations with her. They also asked the washerman not to wash her clothes and also restrained her from drawing water from the public well.

4. In this revision, Shri Pandey, Learned Counsel for the petitioners, contends that the petitioners are entitled to the benefit of exception 1, to section 499, Penal Code. This contention is mentioned only to be rejected as the accused were unable to show that Smt. Shanti Kunwar was kept as a mistress by Lodha. The accused merely stated that it was the complainant herself who had informed them of having been kept by Lodha. This was not proved.

5. It is then urged for the petitioners that they are entitled to the benefit of exception 9 to section 499, Penal Code. In my opinion, this contention too must be rejected at once. In order that the accused may avail himself of this exception, he must show that the imputation was made in good faith and that it was made for the protection of the interest of the maker or of some other person or for the public good. Their story that it was the complainant who told them that she had become a keep of Lodha having been disbelieved and the Learned Counsel being unable to show that any other enquiry was made by the accused to ascertain whether she had become a concubine of Lodha, it cannot be said that they made the imputation in good faith. Nothing is said to be done in good faith which is done or believed without due care and attention.

6. Shri Pandey then strenuously urged that it is an absolute privilege of a witness to make any statement in a judicial proceeding. Reliance is placed on Rajindra Kishore V. Durga Sahi : AIR 1967 All. 476 . and Brijlal Prasad V. Mahant Laldas 25 MPLC 283 : ILR 1940 Nag. 48. In my opinion, this contention must be rejected. Under the English law, a witness is absolutely protected from action of defamation in respect of a statement made by him in the witness box, although he may be indicted for perjury if the statement is false and known to be false. In our country, the privilege or immunity from action in regard to such statement was borrowed from the law of England. The question of such privilege and immunity can be set up as a defence in a civil suit for damages under the law of torts. But no such privilege is recognised by the Penal Code beyond the limits of the exceptions embodied in section 499, Penal Code. The law on the subject, so far as criminal liability is concerned, is completely codified in section 499, Penal Code, and the exceptions under it. The principles of English Law cannot be invoked by going beyond what is enacted in the said exceptions. It is thus quite clear that the principles governing the privilege of a witness are different in criminal defamation from these in civil defamation. Due protection is provided in section 132, Evidence Act, where a witness is compelled to answer a question, which answer may amount to defamation. In the Allahabad case (supra), abusive language was used by the defendant during the cross-examination by the plaintiff and a civil suit was instituted for the recovery of Rs. 500/- as damages for slander. It will thus be seen that that was not a case under the Penal Code. But it is worthy of note that while discussing the legal aspect, Mr. Justice Dhavan made the following observations :

Under section 499 I.P.C. the absolute privilege enjoyed by a witness under the English Law has been reduced to a qualified privilege. But in civil defamation, there being no statute or Code governing the law of torts, the principles of the English Law, which are based on equity justice and good conscience are applied, unless they are shown to be in applicable due to social conditions prevailing in this country. Therefore, a witness making a statement injudicial proceedings, who is subsequently sued for slander for having made that statement, can claim absolute privilege unless it can be shown that the statement was made without any reference to the proceedings before the Court and had no connection with them.

These observations support the view I take. See also Haji Ahmed v. State : AIR 1960 All 623 .

7. The Nagpur decision (supra) also relates to a civil liability for defamation.

8. It is then maintained by the Learned Counsel for the petitioners that they are entitled to the benefit of section 132, Evidence Act. Shri Pandey is unable to show that the defamatory statements were made by the petitioners when they were compelled to answer certain questions. His argument is that asking any question to a witness is implied compulsion because he cannot refuse to answer. This proposition must be rejected. Section 132, Evidence Act enacts that a witness shall not be excused from answering any question, which question relates to any matter relevant to the matter in issue upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate him. At the same time, the proviso comes to the aid of the witness where it is laid down that for truthful answers to questions which he is compelled to give, a witness shall not be subject to any arrest or prosecution, nor shall it be proved against him in any criminal proceeding. But if he gives a false answer he is liable to be prosecuted. Thus, the section achieves two ends: (1) If a witness does not want to answer a question because that would incriminate or tend to incriminate him, he can still be compelled to answer the question. Evidence can thus be obtained, which a witness would otherwise refuse to give. The benefit of the witnesss answer to the cause of justice is secured. (2) At the same time, it secures benefit of the rule than no one shall be compelled to criminate himself by giving him protection that such answer shall not subject him to any arrest or prosecution, nor can it be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

9. The protection embodied in the proviso to section 132, Evidence Act, does not come into play when a witness voluntarily gives an answer. The proviso gives protection only when a witness is "compelled" to answer a question. To put it differently, it is only when a witness is forced or insisted upon to answer a question that he can claim the benefit of the proviso to section 132. For instance, where a witness refuses to answer or hesitates to answer a question and the Court tells him that he must answer it, such direction of the Court brings the case under the proviso. But where a witness, of his own accord, answers a question and the answer is defamatory, it cannot be said that he was compelled to give an answer. "Compulsion" denotes compulsion by the Court.

10. In the present case, it has not been shown that the petitioners, when they were defence witnesses, hesitated or elected not to answer the questions, but they were compelled to answer them and it was in answer to those questions that they made the defamatory statements.

11. It is further argued for the petitioners that since the alleged facts disclosed an offence under section 193, Penal Code, for which there could be no prosecution unless and until the requirements of section 195, Criminal Procedure Code, were fulfilled, they could not be prosecuted for any other offence by dropping that serious charge and selecting one to which section 195, Criminal Procedure Code docs not apply. Reliance is placed on Dr. S. Dutt v. State of U.P. : AIR 1966 SC 523 .. In that case, the appellant was examined as an expert witness by the defence in a Sessions trial. He claimed to hold a diploma from the Imperial College of Science and Technology, London, to the effect that he had specialised in the subject of criminology. He produced a diploma. After the decision of that trial, the prosecution applied to the Sessions Judge under section 195, Criminal Procedure Code for prosecution of the appellant under section 193, Penal Code. That application was rejected. The Deputy Superintendent Police who assisted the District Government counsel in the sessions trial, lodged a report against the appellant that he committed an offence under section 466/477 (subsequently changed to section 465/471) of the Penal Code, while he gave evidence in the sessions trial. It was alleged that the diploma of the Imperial College of Sciences and Technology, London, and the statement produced by the appellant were forged and that he had used them in Court with a bad motive, passing them as genuine. The Police filed a challan against the appellant under section 465/471, Penal Code. The accused-appellant took an objection that he could not be legally prosecuted as the alleged facts disclosed an offence under section 193, Penal Code, and a complaint in writing of the Court was required under section 195, Criminal Procedure Code, before cognizance could be taken. The matter went upto the Supreme Court. It was conceded before their Lordships that the offence under section 465/471 Penal Code, falls within the purview of section 195(1)(c), Criminal Procedure Code, as that provision applies to an offence committed by a party. Their Lordships observed :--

It would thus be seen that the action of Dr. Dutt was covered by sections 192 and 196 of the Penal Code. If Dr. Dutt gave false evidence in Court or if he fabricated false evidence, the offence under section 193 was clearly committed. If he used fabricated evidence an offence under section 196 was committed by him. These offences would have required a complaint in writing of the Sessions Judge before cognizance could be taken.

Their Lordships then held :--

We are therefore, satisfied that Dr. Dutts conduct does not come within section 471. On the other hand, it falls within section 196 which casts its net wider in the interest of the purity of administration of justice. It may be noted that an offence under section 196 of the Penal Code is a far more serious offence than the offence under Ss. 165/471. The former is punishable with imprisonment upto seven years and fine while the letter is punishable with imprisonment upto two years or with fine.

Having arrived at these conclusions, their Lordships observed that it was not permissible for the prosecution to drop a serious charge and select one which does not require the procedure under section 195, Criminal Procedure Code. See also Basir-ul-Huq and others v. The State of West Bengal : 1953 SCR 836 (846).

12. In my opinion, the Supreme Court ruling is not apposite to the present case. Their Lordships dictum is applicable to a case where the requirements of section 195 Criminal Procedure Code are deliberately circumvented.

The Supreme Court decision cannot be read as laying down a rule that a private individual is debarred from filing a complaint in respect of offence of defamation, if there is a possibility of the accused being prosecuted for an offense to which the provisions of section 195. Criminal Procedure Code will apply.

13. It seems to me clear that the object and purpose of section 195, Cr. P. C, is to prevent vexatious of frivolous prosecution by private persons for offences committed against the administration of public justice and those relating to contempt of lawful authority of a public servant. On the other hand, section 198 of the Code relates to offences of private character and the object of this section is to impose a limitation so that only the person aggrieved can initiate prosecution, and it is not that any and every body can drag such offences into a Court of justice. The right to file a complaint about defamation belongs to the person defamed and those who are affected by defamation.

14. It will thus be seen that whereas prosecution for an offence under section 193, Penal Code, could not be initiated by the complainant and could be initiated only by the Court, prosecution for defamation could not be initiated by the Court but could be initiated by the complainant only. The two offences are quite different in character. The former relates to administration of public justice; the latter is a private offence. I am clearly of the view that the right of the individual defamed, to prosecute the offender, cannot be taken away by the omission of the Court to file a complaint regarding the offence of perjury.

15. The conviction of the petitioners is proper. As regards sentence, the appellate Court has already reduced the sentence of fine. I see no ground for further reduction. The revision is dismissed.