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Case Number

Criminal Appeal No. 291 of 1960

Attorney(S)

G.Z. Oza
L.S. Shukla State

Judges

H.R Krishnan
S.B Sen, JJ.

Acts

Section 345(1) Criminal Procedure Code.
Section 417 (3) Criminal Procedure Code
SECTION 195 CRIMINAL PROCEDURE CODE
SECTION 132 EVIDENCE ACT
Section 182 Evidence Act,
Section 499 I. P. C.
Section 500 I. P. C.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is an appeal by leave under Section 417(3) of the Criminal Procedure Code brought by the complainant against an acquittal by the Magistrate. The acquittal related to a charge of defamation under Section 500 I.P.C. arising from a statement made by the respondent while deposing in a civil suit. The offending statement (as recorded) was: "Hemraj (present complainant and uncle (mama) of the plaintiff in that suit in which the respondent was defendant) was at Barnagar but has come away after becoming insolvent there."

After the civil suit ended, Hemraj filed a complaint under Section 500 I.P.C. The respondent's statement in the civil court record was proved by the examination of the Civil Judge and the Clerk of the Court, and the correctness of the record was not challenged. The Magistrate acquitted the respondent on the ground that the witness might have thought he was bound to answer and therefore was protected by the proviso to the Evidence Act (the judgment refers to the proviso to Section 132 of the Evidence Act in parts of the opinion, and also uses the label "Section 182 Evidence Act" in one passage of the lower-court discussion as reported in the opinion).

The complainant appealed against that acquittal. The High Court considered the wider legal questions of whether witnesses have absolute protection for statements made in the witness-box, when the proviso to the Evidence Act can be claimed, and how exceptions in Section 499 I.P.C. may be pleaded by a defendant charged with defamation based on testimony.

Legal Issues Presented

Whether a witness has absolute protection from prosecution or suit for defamation in respect of statements made while giving evidence in the witness-box.
In what circumstances the benefit of the proviso to the Evidence Act (referred to in the opinion as the proviso to Section 132 of the Evidence Act) may be claimed by a witness who gives allegedly defamatory testimony.
How a person charged with defamation for a statement made in the witness-box can plead any of the exceptions enumerated in Section 499 I.P.C.

Arguments of the Parties

Respondent's Arguments

The respondent (accused) relied on the proviso to the Evidence Act (referred to in the record as the proviso to Section 182 in one place and to Section 132 in others) to contend that he could not be prosecuted for the statement made while answering questions in the witness-box. The Magistrate accepted this contention in general terms and acquitted the respondent.
There was no serious direct attempt, according to the opinion, by the respondent to establish the truth of the defamatory statement or to demonstrate that any of the exceptions in Section 499 I.P.C. applied; the only evidentiary step taken was production of a document showing a 1943 sale in execution of a decree against the complainant's property.

The opinion does not contain a detailed account of any pleaded arguments advanced by the complainant in opposition to the contention that the proviso applied; it records primarily the respondent's invocation of the proviso and the Magistrate's acceptance of that argument.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
The Queen v. Gopal Doss, ILR 3 Mad 271	Early Madras authority accepting principles of English law regarding witness testimony privilege.	Cited as part of the historical Madras view that initially accepted absolute protection for witnesses.
Manjaya v. Sesha Shetti, ILR 11 Mad 477	Another early Madras case in the same line accepting English-law principles on witness privilege.	Shown to be part of the early Madras trend; later Madras decisions modified that position.
Tiruvenga Mudali v. Tripurasundari, ILR 49 Mad 728 : (AIR 1926 Mad 906) (FB)	A later Madras Full Bench decision that substantially modified the earlier acceptance of absolute privilege.	Used to demonstrate that Madras jurisprudence had moved away from the principle of absolute privilege.
Elavarlhi Peddabba Reddi v. Iyyala Varada Reddi, AIR 1929 Mad 236	Later Madras authority limiting or modifying the earlier rule of absolute privilege.	Pointed to as a subsequent Madras decision inconsistent with absolute privilege.
Bai Shanta v. Umrao Amir Malik, ILR 50 Bom 162 : (AIR 1926 Bom 141) (FB)	Bombay Full Bench decision holding that there was no absolute privilege for witnesses.	Cited to show that Bombay later rejected absolute privilege and took the same direction as the later Madras cases.
Haider Ali v. Abru Mia, ILR 32 Cal 756	Calcutta decision representative of that High Court's consistent opposition to absolute privilege.	Adduced to show that Calcutta jurisprudence has been against absolute protection of witnesses.
Chotelal v. Phulchand, AIR 1937 Nag 198	Held that a person giving evidence is not entitled to absolute privilege and that a non-party may move a Magistrate for a complaint of defamation.	Directly relied upon as the Nagpur High Court's authority that there is no absolute privilege and that a non-party can seek redress before a Magistrate without moving the court where the statement was made.

Court's Reasoning and Analysis

The court began by observing that the Indian law of defamation derives originally from English law but has been codified in Section 499 I.P.C. and its exceptions. It noted that English law affords an absolute privilege to witnesses in the witness-box for statements relating to the subject-matter of the proceeding, but even under English law it is doubtful whether wholly irrelevant statements unconnected to the subject-matter would be protected.

The opinion surveyed the trajectory of Indian High Court decisions: early Madras and Bombay cases accepted principles akin to English absolute privilege, but later Full Bench decisions in Madras (and later decisions in Bombay and Calcutta) rejected absolute privilege. The Nagpur High Court decision in Chotelal v. Phulchand was cited as holding explicitly that there is no absolute privilege and that a person not party to the proceedings may move a Magistrate for a complaint of defamation.

Turning to the present facts, the court examined the Magistrate's reasoning. The Magistrate had equated the court's allowance of a question with a presumption of relevance and, in turn, with compulsion—thereby effectively creating absolute privilege for any answer given in the witness-box. The High Court rejected that approach.

The court emphasized the narrow meaning of "compulsion" under the proviso to the Evidence Act: compulsion must be definite and express (or clearly indicated on the record), not the generalized latent sense that every witness is 'compelled' by the setting of the court. The court stated that the proper inquiry is whether the statement is "remotely relatable" to the subject-matter of the judicial proceeding and whether the record indicates the witness was really unwilling and was being compelled to answer the specific question.

Applying these principles to the record, the court found no indication of compulsion: the respondent's answer went off the relevant point (he volunteered information about the complainant's uncle, who had nothing to do with the controversy) and there was no hesitation or request by the witness to be excused. The mere fact that a question was allowed by the court did not, in itself, establish compulsion attracting the proviso.

The court also found that the respondent had not properly attempted to avail himself of any exception in Section 499 I.P.C. The only evidentiary material produced was a document showing a sale in execution in 1943, which the respondent sought to treat as supporting a claim of insolvency many years later; the court held that such a document did not, as a matter of law based on the record, establish that the statement fell within any exception to defamation in Section 499.

Finally, the court noted a related point (not arising on the facts): if a witness were compelled to give a false and defamatory statement, the proviso's wording suggests that prosecution for defamation might be barred but that the court could entertain a complaint for perjury. However, that question did not arise in this case.

Holding and Implications

Holding: The High Court set aside the Magistrate's judgment of acquittal and convicted the respondent under Section 500 I.P.C. The court imposed a fine of Rs. 200, or imprisonment in default for six months. The appeal was allowed on these terms. The opinion ordered that any fine realised be paid in its entirety to the complainant as compensation under Section 345(1) Cr.P.C.

Implications:

The court rejected the notion that mere allowance of questions by the court creates a presumption of compulsion sufficient to invoke the proviso to the Evidence Act; compulsion must be clearly indicated on the record.
The opinion affirms that Indian defamation law is governed by the codified provisions of Section 499 I.P.C. and its exceptions, and the courts should not extend protection beyond those statutory exceptions by importing a principle of absolute privilege.
Where a witness is not shown to have been under compulsion and the statement is unrelated to the subject-matter of the proceeding, the witness is not immune from prosecution for defamation and must either avail himself of a statutory exception in Section 499 I.P.C. or face prosecution.
The court observed (by way of legal clarification) that if a compelled witness gives a false defamatory statement, prosecution for defamation may be barred by the proviso, but the court may still deal with the matter by a complaint for perjury; this point was noted without being decided on the facts of the case.
Direct consequence for the parties: the respondent was convicted and ordered to pay a fine (or face default imprisonment), and the fine, if collected, is to be awarded to the complainant as compensation. The opinion does not purport to create a new exception to Section 499 I.P.C., but clarifies the limits of the proviso to the Evidence Act and rejects an expansive reading that would amount to absolute privilege for witnesses.

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Hemraj Poonamchand v. Babulal Bhagirath .

1. This is an appeal by leave under Section 417 (3) Criminal Procedure Code by the complainant from the acquittal by the Magistrate of the respondent of a charge of defamation while deposing in a Civil Suit by stating

"Hemraj (present complainant and uncle (mama) of the plaintiff in that suit in which the respondent was defendant) was at Barnagar but has come away after becoming insolvent there."

The ground for acquittal by the Magistrate was that the witness might have thought that he was bound to answer the question and as such he was protected by the proviso to Section 132 of the Evidence Act. However, the trend of paragraph 6 of the Magistrate's judgment is that whenever a witness answers questions in the witness box the very fact of the Court allowing the question to be put would lead to the presumption that it is relevant, and the very context would indicate that the witness is being competed to answer; thus, in effect, he grants privilege--or absolute privilege--in regard to the statement of a witness in the witness-box. The case is therefore of interest in that it calls for the examination, firstly, of the question of a witness's absolute protection from prosecution or suit for defamation for statements made in the box, the circumstances in which the benefit of the proviso to Section 132 Evidence Act may be claimed and thirdly, the manner in which a person charged with defamation by his statement in the witness-box can plead one of the exceptions mentioned in Section 499 I. P. C.

There is nothing in the evidence or the proceedings to show that the witness was unwilling to answer and was being compelled; nor has Hemraj in any manner the least connection with, the subject-matter of the suit. When the suit ended, Hemraj filed a complaint against this respondent under Section 500 I. P. C. The statement was proved by the examination of the Civil Judge and the Clerk of the Court. Naturally, the correctness of the record has not been questioned. There was no serious direct attempt to prove the truth of the statement or the applicability of any of the exceptions; but it was urged that under the proviso to Section 182 Evidence Act, the respondent could not be prosecuted. This being accepted in a very general sense by the Magistrate, the respondent was acquitted.

3. Our law of defamation and the privilege or immunity from action in regard to a defamatory statement has been originally derived from the law of England but has from the very beginning been enacted in unmistakable words. The English law is that a witness is absolutely protected from action for defamation in respect of statements made by him in witness-box though possibly, he could be indicated for perjury, in case the statement is false and known to be false. But even there, the statement should relate to the subject-matter of the judicial proceeding, and it is very doubtful if a statement that is altogether without any bearing on that subject-matter, if made, will be protected. We are not, however, concerned with the English law as such except that the Madras High Court has in, early cases accepted those principles. The Madras view in the Full Bench decision The Queen v. Gopal Doss, ILR 3 Mad 271 and in Manjaya v. Sesha Shetti, ILR 11 Mad 477 though followed in a number of cases has been substantially modified in the comparatively later cases in Tiruvenga Mudali v. Tripurasundari, ILR 49 Mad 728 : (AIR 1926 Mad 906) (FB) and Elavarlhi Peddabba Reddi v. Iyyala Varada Reddi, AIR 1929 Mad 236. The trend in Bombay also had originally been in the same direction as Madras; but in later decisions like Bai Shanta v. Umrao Amir Malik, ILR 50 Bom 162 : (AIR 1926 Bom 141) (FB), the view is that there was no absolute privilege. Calcutta has been more consistently against absolute privilege and the ruling--Haider Ali v. Abru Mia, ILR 32 Cal 756 is fairly typical of the decisions of that High Court. The majority view of the Allahabad High Court has been to the same effect. In general practically all our courts are against the principle of absolute protection of a witness. We are concerned directly with the opinion of the Nagpur High Court. In Chotelal v. Phulchand, AIR 1937 Nag 198 it was held:

"A person giving evidence in a Court of law is not entitled to an absolute privilege in respect of the statement which he makes, and consequently he is not immune from a complaint of defamation by reason of words uttered on oath in the witness-box ... .. .. a person who alleges that he has been defamed and has not been a party to the proceedings at all, ... can move a Magistrate to entertain a complaint in respect of a defamation without moving the Court in which the statement was made, to make a complaint under Section 195 Criminal Procedure Code."

4. Considering that our law of defamation unlike the English law on the subject has been completely codified in Section 499 I. P. C. and the exceptions have been enacted in the section itself, it is really not proper to go beyond them and to invoke the principles of the English law laid down in another context. Certainly, an unwilling witness who is being compelled by a Court to answer its question under express or tacit threat of prosecution, is entitled to consideration and should not be exposed to a suit or prosecution for defamation if what he deposes under compulsion turns out to be defamatory. But that situation also is fully met by the proviso to Section 132 Evidence Act.

5. As already noted, the learned Magistrate though ostensibly acquitting by application of the proviso to Section 182, has in the relevant part of the judgment (in paragraph 6) set out what in effect turns out to be absolute privilege-

"The statement was one that was made in answer to a question put to him and not voluntary. The fact that the Court allowed the questions shows that it Was relevant in the opinion of the Court The accused being asked questions on the subject, must have found himself in a very awkward position as according to law, he was bound to answer them"

This is a situation in which every witness finds himself and the proper way of approach is to see, firstly, whether the statement is even remotely relatable to the subject-matter of the controversy in the judicial proceeding and the witness has been really unwilling to make it. If, while under examination, and on being asked how he knows so-and-so a party in the suit, the witness goes off at a tangent and says he knows--so-and-so,

"as a nephew of so-and-so who had become insolvent in such-and-such place and had moved on at his nephew's place afterwards .. ... .. ..."

such a statement cannot in any manner be considered to be either one concerning the subject-matter of the judicial proceeding or one made under compulsion. Whether the question was relevant or not, most often--and certainly in this case-the answer itself would indicate. Here, for example, it was only as to the witness's knowledge of Pannalal, the plaintiff, and he quite unnecessarily moves away from the real point to speak ill of Pannalal's mama who had nothing whatsoever to do with the controversy. The compulsion in Section 132 is not the general latent compulsion over every witness, but some thing definite and express. The record itself should, indicate that the witness was really unwilling to make the statement concerned, and was being pulled up by an insistent Court to give an answer. It may not be necessary for him to prove that the Court expressly threatened him with consequences if he refused to answer; but compulsion should be clearly indicated as the proviso itself states-

"No answer which a witness shall be compelled to give shall subject him to any arrest.........."

In such a situation, the proper course for the witness is to ask the Court if he was bound to answer, and if the Court still insisted, there would be compulsion attracting the proviso. But, if the witness goes on without showing the least hesitation or asking the court to excuse him then on facts, there is no compulsion. The learned magistrate has read into the proviso, the principle of absolute privilege by presuming that there is compulsion whenever a witness conies into the box; that is not correct.

6. It is an interesting question, whether in the event of the witness under compulsion giving a statement which is false and defamatory, be could be prosecuted on the latter ground. That question does not arise in the present case; but it would appear, in view of the wording of the proviso, that in such event, he cannot be prosecuted on complaint for defamation, but can be dealt with in a complaint by the Court for perjury.

7. In this case, it is clear that the witness was not entitled to any protection under the proviso to Section 132 Evidence Act. He was, however, entitled to plead that his statement came under one or the other of the exceptions in Section 499 IPC which however, is exactly what he has not attempted to do. All that he has done is to bring on record a document showing that in 1943, about 15 years before his statement in Court, some property belonging to the complainant had been sold upon satisfaction of a court-decree. The idea apparently was that the sale of property in execution of a decree is an "act of insolvency," and therefore it would be true to state in 1957 or 158 that a person, some property belonging to whom had been sold in 1943 in execution of a decree had been insolvent. I do not agree. What is technically an "act of insolvency" may in certain circumstances lead to a declaration of insolvency; but it is not always so. Apart from it, the question in this case is not whether the statement given by the respondent can in a very round-about manner be described as an exaggeration of something that really happened many years ago, but whether any of the exceptions was attracted. None of them was applicable even according to the witness.

8. The result is that the judgment of acquittal is set aside and the respondent is convicted under Section 500 IPC. In view of the lapse of time before the case has come up here and the general background in this case, we are of opinion that a fine of Rs. 200/- or imprisonment in default for six months is sufficient. The appeal is allowed in these terms. The fine, if realised, shall in entirety be made over to the complainant as compensation under Section 345(1) Criminal Procedure Code.

Hemraj Poonamchand v. Babulal Bhagirath .

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Hemraj Poonamchand v. Babulal Bhagirath .

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