Chunni Lal v. Narsingh Das

Babu Piari Lal Banerji, for the appellant:—

Sir Sundar Lal, for the respondent:—

The statements complained of are defamatory, but it is submitted that they are absolutely privileged. Because a man may be criminally liable, is he necessarily liable for damages in a civil action too’? In England, he will not be liable in a civil action; absolute privilege will be allowed to him. There is no reason why the law should be different in India.

The difference in this particular instance between the criminal laws of India and England has no effect. Because a man is criminally liable he is not necessarily liable civilly also. Let us take for example, the defence of truth in England under the Lihel Act—as well as in India under the Penal Code—truth in criminal proceedings is a defence only under certain circumstances and within certain welt-known limitations. But in a civil action it is complete defence. So, the defence of absolute privilege may or may not be a good defence in criminal proceedings, but as it is a good defence in civil actions in England, it should be so in India too. The fact of a man being criminally liable for a certain act is no test or criterion for determining his liability in a civil action for damages for that act.

The English Law on the subject is to be found in Pollock, Law of Torts, 6th Edition, pp. 254 and 257; Halsbury's Laws of England, Vol. 18, pp. 678 and 738.

The following are the leading English cases on the subject:—

Munster v. Lamb This was a case of a counsel being sued for defamation. The judgements of Breit, M.R and Fry, L.J, are very clear and instructive. This case shows that there is no difference between a witness and a party.

Revis v. Smith. This was a case of a witness making a attachments in an affidavit in principle there is no difference between this and the case of a party filing a complaint. The case just cited does away with the supposed distinction between viva voce statements and those made deliberately.

Henderson v. Broomhead This was a case of a party making statements in an affidavit.

Watson v. MeEwan(4); Hodson v. Pare(5). This was a case of a petition instituting proceedings like the present.

Bottomley v. Brougham(6), Lilley v. Roney(7), Dawtcins v. Lord Rokeby(8), Seaman v. Neiherclift(9).

Here a witness persisted in making voluntary statements, in spite of the fact that the Judge had told him not to make any statement, and refused to listen to him, and had practically discharged the witness. Yet it was held that the man was privileged. It is thus settled that, in England, judge, counsel, witness and party all stand on the same footing. And it is submitted, that the same privilege should be accorded in India too as to the Indian authorities, the first case is that of Baboo Gunnesh Dutt Singh v. Mugneeram Chowdhry. The observations relating to the privilege of witnesses in their Lordships' judgement at p. 328 are not obiter. Even if they were so, they are entitled to great respect, and no Civil Court can refuse to follow them. In a criminal case it may be different. The case just cited also shows that in actions for malicious-prosecution, the tests of the Indian Penal Code are not applied, although a remedy by criminal proceedings under section 211 of the Penal Code is also open. The first case in this Court is that of Chowdhry Goordutt Singh v. Gopol Dass. It is not of much help, for it held that the proceedings were not judicial. The next case is that of Tulshi Ram v. Harbans. It is in my favour, although it accords to witnesses a sort of a limited privilege only. The next case is that of Abdul Hakim v. Tej Chandar Mukarji. This is the only case which is really in favour of the plaintiff. But it has not been followed in a large number of cases. Even Subordinate Courts have refused to follow it and this Court has not censured them. The observations which help the plaintiff are entirely obiter dicta. The principle on which they are based is that to determine liability in civil actions also we must go to the Indian Penal Code for guidance. This is not warranted. There is no reason why the principles and tests of the Indian Penal Code should be introduced into a civil action for damages for defamation, especially when the Indian Penal Code is not imported for guidance in any other form of civil action where a criminal remedy is also open, e.g, malicious prosecution. The next case is that of Dawan Singh v. Mahip Singh. It has been supposed by some that Mahmood, J. has in ibis case expressed himself as against the view now contended for by me. But that is not so. He only effused to follow the English law of slander, which is highly artificial. But the learned Judge does not refuse to follow the English law as to the absolute privilege of a witness. The judgement has been misunderstood. As a matter of fact, he goes the whole length with Brodhurst, J., so far as the question of the privilege of a witness is concerned. So that as early as 10 Allahabad, the authority of 3 All, 815, (Abdul Hakim v. Tej Chandar Mukarji) had been shaken. The next case is that of Emperor v. Ganga Prasad. There the question was as to the criminal liability of a witness who makes defamatory statements whilst giving evidence. Even on that point Richards, J., differed from Knox, J. The ruling must be considered to be limited to criminal cases, and is therefore distinguishable. The principal judgement was that of Knox, J., and he is careful to employ language which cannot be extended to civil actions. The next case is that of Babu Prasad v. Muda Mal. The case helps me inferentially. The case in 3 All., 815, was not cited nor were the lower courts censured for not following it. It cannot be argued that the cases in 3 All, 815, and 11 A.L.J, 193, are consistent. Such being the state of the authorities in this Court, it cannot be urged by the other side that acceptance of my arguments would disturb any current of decision. My contention that in a civil action for damages for libel, the tests of the Indian Penal Code cannot be applied derives support from the fact that in the well-known Benares caste case, Bishambhar Das v. Gobind Das, the High Court did not refer to the Penal Code for guidance, nor did the Privy Council. See Gobind Das v. Bishambhar Das. There is great conflict in the Calcutta Court, but the later rulings are in my favour. Omitting the earlier cases, the first case is Bhikumber Singh v. Becharam Sircar which favours the appellant. The case of Augada Ram Shaha v. Nemai Chand Shaha is against me. But the reasoning in this case is unsound and incorrect. The opinion that “we do not think it possible that a statement may be the subject of a criminal prosecution for defamation, and at the same time may be absolutely privileged, as far as the Civil Courts are concerned,” is too widely stated. The case has been followed up to a certain stage, but later on the tendency has been to ignore it. The case of Kali Nath Gupta v. Gobinda Chandra Basu, was a criminal case. Besides, it simply follows the case in 23 Calc., 867. The distinction drawn between a witness and a party is obviously erroneous. The Judges base the privilege of a witness on section 132 of the Indian Evidence Act, and the obligation that lies on a witness to answer all questions put to him. But it has been held that the privilege of a witness is much wider, i.e, it extends even to voluntary, absolutely irrelevant and obviously malicious statements. The case of H.P Sandyal v. Bhaba Sundari Debi, is also against me. But that also simply follows the case in 23 Calc, 867. One of the learned Judges, however, does not do so without reluctance. This is the last case which recognizes the authority of 23 Calc, 867. The cases of Kori Singh v. The King-Emperor and Kori Singh v. Mr. J. Finch were criminal cases and are of no help. The first one, however, shows that there is a difference between a criminal case;and a civil action. The case of Golap Jan v. Bholanath Khettry is entirely in my favour. In the case of C.H Crowdy v. L.O Reilly, Mookerji, J., cites the American cases on the subject. In all systems of civilised jurisprudence absolute privilege, as contended for here, has been allowed. The leading case in the Madras Court is that of In re P. Venkata Reddy, in which all the Madras authorities on the subject are collected. The case of Re Muthusami Naidu is also in my favour. They are both criminal cases, and the Madras Court has extended the principle of absolute privilege oven to criminal cases. The Bombay case of Nathji Muleshvar v. Lalbhai Ravidat is entirely in my favour. The case of Queen-Empress v. Babaji(10) shows that the Bombay Court too has extended the doctrine of absolute privilege to criminal cases also.

The Punjab cases of Ali Khan v. Malik Yaran Khan and Kundan v. Ramji Das are in my favour. The case of Fatch Muhammad v. The Empress was a criminal case and has no application to the present case. It is on the same footing as the case in I.L.R, 29 All., 685. Thus, apart from English cases, the balance of authority in India too, I submit, is in my favour, and the recent cases of all the High Courts support me.

The question is whether a person filing a complaint, however groundless, malicious and false, is entitled to the protection of absolute privilege on the ground of any public policy. Under section 37 of the Bengal, N.W.P and Assam Civil Courts Act, (Act XII of 1887), whenever there is no statute law, courts in India have to act according to justice, equity and good conscience. This being a civil suit for damages for defamation, for which there is no statute law, the question is whether it is in accordance with justice, equity and good conscience to hold in India, following English case-law, that a statement of the kind we are considering in this case is protected. It may be protected in England. But the question is whether the English Law should be followed in India. The facts found in the present case clearly show that the statements made by Chunni Lal in his petition of complaint, especially the one to the effect that the pleader had pocketed the money, were most reckless and made without due care and caution. Is such a man entitled to the protection of absolute privilege? For the purpose of deciding this question, the matter to consider is how far has the wide doctrine of absolute privilege to be found in English Law been followed in India and how far should it be followed by this Court.

So far as Indian Law is concerned, the Indian Penal Code has not accepted the wide principle of English Law. Section 499 of the Code gives only a qualified privilege. Thus, so far as criminal matters are concerned, we have a law enacted by the Indian Legislature which does not accept the English Law in its entirety. Why should we not go to it for guidance, rather than to English law, in order to find out what is in accordance with justice, equity and good conscience? The rule of English law is based on the theory that parties and witnesses must be absolutely unfettered and without fear of civil and criminal liability of any kind. In India, as section 499 of the Penal Code gives only a qualified privilege, parties and witnesses have to be in fear of at least one form of liability, viz.: criminal, which is the more serious of the two. Thus the whole reason of the English rule disappears so far as this country is concerned. If such persons are liable criminally, there is no reason why they should be protected when a civil action is brought against them. The Indian Legislature has thought it necessary to pass Act XVIII of 1850. If the rule of English law were applicable to this country in is entirety, judicial officers would have been amply protected by it and there would have been no need for this enactment. Then again, there is section 132 of the Indian Evidence Act. That also militates against the view that the English Common Law on the subject is applicable to this country. The question in this country has to be considered not in the light of case law but in that of principle and legislation so far as it has proceeded in this country.

Mr. A.P Dube, followed on the same side:—

The rule of English Law, giving absolute privilege, is a rule of adjective law. It takes away jurisdiction; Bottomley v. Brougham Therefore, unless it can be held that there is something in the adjective law of India which takes away the jurisdiction of the courts in such matters, the rule of English Law is of no assistance.

The case just cited clearly explains that the doctrine of absolute privilege means that the courts are precluded from inquiring into such matters, It cannot be denied that the present action is a suit of a civil nature, and there is nothing in the law of India which expressly or impliedly bars its cognizance by the courts, Under section 9 of the Code of Civil Procedure, therefore, the plaintiff is entitled to have his suit tried, and the English law has no application. It has been admitted even by writers of text-books on English law that the protection created by the English law for the sake of honest litigants and persona might also protect dishonest and malicious persons. It is for this Court to consider whether it is not possible to give in this country only a qualified privilege which will protect only honest and Innocent persons. In England the rule had its origin in a feeling that the conduct of judges and advocates should not be made the subject of an inquiry by a jury. It has been extended to other persons engaged in judicial proceedings, e.g, witnesses, parties and jurors. No such considerations arise here. Besides, there are some very important differences between Indian and English society which are clearly explained by Spencer, J., in 36 Mad., 216. The weight of authority in India is in favour of giving only a qualified privilege. He cited and discussed the following cases:— Gobindhi v. Jodha Bali, Abdul Hakim v. Tej Chandar Mukarji, Dawan Singh v. Mahip Singh (at page 450, judgement of Mahmood, J.), Babu Mal v. Muda Mal, Bishambhar Das v. Gobind Das, Queen v. Pursoram Doss, , Shibnath Tulapultro v. Sat Cowree Deb, Bhikumber Singh v. Becha Ram Sircar, Augada Ram Shaha v. Nemai Chand Shaha, Kari Singh v. Emperor, In re Nagarji Trikamji(11) and Sullivan v. Norton(12).

Babu Piari Lal Banerji, was not called upon to reply, but cited Varden Seth Sam v. Luckpathy Royjee Lallah(13) and ??? Rajsanji v. Shekh Masluddin(14).