[1] The accused in this case has been convicted of defaming one Mr. Macpherson. It appears that in a former case he applied to the District Magistrate for a transfer and in that application, he stated that Mr. Macpherson had brought to Court the Manager of the Maghoul Factory, who was the trying Magistrate s tenant, and had had a private talk with the trying Magistrate. He inferred that this was done to put pressure on the trying Magistrate and to induce him to convict the petitioner. [2] It appears that this was all pure invention. The Manager of the Maghoul Factory was not brought to Court at all and Mr. Macpherson had no private talk with the trying Magistrate. The assertion clearly amounted to an accusation against Mr. Macpherson that he had attempted to corrupt justice and it cannot be gainsaid that it was defamatory and made in bad faith. [3] The petitioner has obtained a Rule on the Magistrate to show cause why the conviction should not be set aside on the ground that the statement in the application for transfer was absolutely privileged. [4] It is evident on reference to the terms of the section itself that statements made in bad faith are not protected. But it is argued by the learned Pleader, who appears in support of this Rule, following the decision of Potaraju Venkata Reddy v. Emperor 13 Cr. L.J. 275; (1912) M.W.N. 476; 11 M.L.T. 416; 23 M.L.J. 39; 14 Ind. Cas. 659 [LQ/MadHC/1912/123] that the English Common Law doctrine of absolute privilege is also law in this Country. Speaking with the utmost respect for that decision, we are unable ourselves to take this view. The learned Pleader has not shown us any authority, historical or otherwise, for holding that the English Common Law ever had any application to the Indian Mofussil and despite some casual expression in certain decisions, we are unable to understand how it could ever have had any application. It is argued, however, that as the exceptions in Section 499 of the Penal Code correspond only to the classes of qualified privilege in English Law, and as there is no reference in the Penal Code to the cases of absolute privilege, it must be assumed that the framers of the Code, who were introducing the English Law into this country, cannot have intended to exclude that portion of it. The rule laid down in Bank of England v. Vagliano (1891) A.C. 107; 60 L.J.Q.B. 145; 64 L.T. 353; 39 W.R. 657; 55 J.P. 676 quoted in Norendra Nath Sircar v. Kamalbasini Dasi 23 C. 563; 23 I.A. 18 was that the proper course to adopt in construing an Act was to ascertain the natural meaning of its language and not to assume that it was intended to leave the existing law unaltered, except when that intention was stated. This decision is distinguished on the ground that Lord Herschell in laying down that rule was dealing with an Act codifying the existing law and not with an Act introducing new law. It seems to us that the distinction tells rather against the appellant than for him. If it is wrong to assume that in codifying existing law, the Legislature intended to leave it unaltered unless that intention is expressly stated, it seems to us that it would be more, and not less, wrong to assume that in introducing a foreign law into a country, the Legislature intended to introduce the whole of it unless the contrary is expressly stated. It was held in Gokul Mandar v. Pudmanund Singh 29 C. 707; 4 Bom.L.R. 793; 6 C.W.N. 825; 29 I.A. 189 (P.C.) that it is the essence of a Code to be exhaustive on the matters in respect of which it declares the law and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction." The Penal Code certainly declares the law in respect of defamation. It contains a definition of defamation and sets out a number of exceptions. It appears to us that it must be regarded as exhaustive on the point. Section 2 enacts that every person shall be liable to punishment under this Code and not otherwise for their acts. If there are a number of exceptions to the offence of defamation other than those contained in Section 499, it appears to us that an offender must be liable to punishment for defamation otherwise than under the Code. On principle, therefore, it would seem to us that Section 499 is exhaustive and that if a defamatory statement does not come within the specified exceptions, it is not privileged. [5] It appears to us also that in Bengal the matter is concluded by authority. The cases of Greene v. Delaney 14 W.R. Cr. 27; Augada Ram Shaha v. Nemai Chand Shaha 23 C. 867; Kali Nath Gupta v. Gobinda Chandra Basu 5 C.W.N. 293 seem to us clear authority for holding that the question of privilege must be decided by the terms of Section 499. The decisions of this Court that have been cited on behalf of the appellant are, in our opinion, distinguishable. The first case relied on is that of Baboo Ganesh Dutt Singh v. Magneeram Chowdhry 11 B.L.R. 321; 17 W.R. 28

3. There it was held that on principle of public policy, a witness cannot be sued for damages in respect of defamatory evidence given by him in a judicial proceeding. But there their Lordships were dealing with a civil suit and not with a criminal prosecution; and were not considering the effect of Section 499 of the Penal Code. This is a real distinction because while the law of crimes has been codified and offences have been defined by statute, the codification of the law of torts was abandoned and actionable wrongs are not defined by statute. It is likely enough that if the law of torts had been codified, some provision would have been introduced, such as exists in the Contract Act, by which suits opposed to public policy would have been barred. But this has not been done and the question what is or is not an actionable wrong has to be gathered from case-law and considerations of justice, equity and good conscience, and not from a statutory definition. It is, therefore, possible in such cases to apply principles of the English Law which are consonant with justice, equity and good conscience which would have no application, if actionable wrongs had been defined by statute. Secondly, it is clear that a voluntary statement by an accused is different from a statement made by a witness who is compelled to answer the questions, put to him. The distinction may be fine but it has been recognised and acted upon by this Court. We may refer again to the case of Kali Nath Gupta v. Gobinda Chandra Basu 5 C.W.N. 293 quoted above. And in Haidar Ali v. Abru Mia 32 C. 756; 9 C.W.N. 911; 2 C.L.J. 105; 2 Cr. L.J. 459 the learned Judges refused to extend the privilege even to a witness when the statement was not made in answer to a question that the witness was bound to answer, but was volunteered. [6] In Bhikumber Singh v. Becharam Sirkar 15 C. 264 it was held that a statement made by a witness was absolutely privileged. That was a suit for damages and the case goes no further than Ganesh Dutt Singh v. Magni Ram 11 B.L.R. 321; 17 W.R. 283 already discussed. The same may be said of Woolfun Bibi v. Jesarat Sheikh 27 C. 26

2. In Golap Jan v. Bhola Nath Khetry 38 C. 880; 15 C.W.K. 917; 11 Ind. Cas. 311 [LQ/CalHC/1911/303] the statement was made by a complainant and not by a witness, but the privilege was claimed not in a criminal prosecution but in a suit for damages. That also was a case within the original jurisdiction of this Court, where the application of English law might be supported by arguments that would be inapplicable to a case in the Mofussil. [7] It seems to us, therefore, clear both on principle and authority that in Bengal there is no absolute privilege for a statement like that now under consideration when made in bad faith. It has been pressed upon us that in the analogous case brought by the Manager of the Maghoul Factory, a Bench of this Court set aside the conviction and it has been suggested that we should refer the matter to a Full Bench. But we can only refer to a Full Bench a decision from which we dissent on a point of law and we do not so dissent from any decision that has been laid before us. In the analogous case, the learned Judges expressly declined to lay down any principle of law and set aside the conviction because in view of the two cases cited by them Potaraju Venkata Reddi v. Emperor 13 Cr. L.J. 275; (1912) M.W.N. 476; 11 M.L.T. 416; 23 M.L.J. 39; 14 Ind. Cas. 659 [LQ/MadHC/1912/123] and Golap Jan v. Bhola Nath Khetry 38 C. 880; 15 C.W.K. 917; 11 Ind. Cas. 311 [LQ/CalHC/1911/303] the propriety of the conviction was open to serious doubt. But speaking with all respect, we are unable to share the doubts of the learned Judges as to what is at present the law on this point in this Province. [8] The Rule is discharged.