Haidar Ali v. Abru Mia

1. The question before us in revision is whether the applicant, Abru Mia, was properly convicted under Section 500 of the Penal Code.

2. The facts found are these. In a case concerning false weights in which one Haidar Ali was the accused, the applicant (who was the complainant) deposed as a witness. He was asked 1. whether he knew one Kanu, 2. whether Haidar Ali had had any quarrel with Kami, and 3. whether Kanu had asked pardon of Haidar Ali in a panchayat. The Convicting Magistrate goes on to say:— “the alleged objectionable statement was apparently made in continuation of the 3rd question and not in answer to any put by the pleader cross-examining him.” The statement so made was—”Accused (Haidar Ali admitted in the panchayat that Kana beat him with a wooden shoe.” This was a false and very defamatory statement. There was no panchayat. Thus, the applicant has been convicted under Section 500, I.P Code.

3. We are not disposed to interfere in this matter. The ruling in Woolfun v. Bibi Jesarat Sheikh (1), is no doubt in favour of the contention that Abru Mia should have been prosecuted for giving false evidence, and not for the offence of defamation. But that case makes no reference to section 132 of the Evidence Act, the proviso to which has been construed, in Moher Sheikh v. Queen-Empress (2), to be not applicable to voluntary statements. On the other hand, some Bombay and Madras authorities, for instance Queen-Empress v. Babaji (3), Queen-Empress v. Balkrishna Vithal (4), Manjaya v. Sesha Shetti (5), go very much further than the above first-cited ruling, and apply the English rule of protection against indictment for defamation, to witnesses in this country. But that rule is stated in Odgers' work on Libel and Slander to be subject to certain qualifications. “A remark made by a witness in the box wholly irrelevant to the matter of enquiry, uncalled for by any question of counsel, and introduced by the witness maliciously for his own purposes, would not be privileged” (p. 227).

4. We think that even according to the above rule, as limited, Abru Mia has been rightly convicted. His voluntary statement as to shoe-beating was not relevant to the issue whether Haidar Ali was found to be in possession of false weights. It was not elicited by th a pleader putting questions to Abru Mia. Again, it is perfectly clear, from the judgment of the Magistrate, that Abru Mia was actuated by malicious motives against Haidar Ali who is a wholesale dealer in the bazar, against whom the retail sellers have combined, then, the case of Moher Sheikh v. Queen-Empress () is directly in point, and we follow that authority.

5. We, therefore, decline to interfere. Let the papers be returned.

6. Reference discharged.