MOHAMMAD ISA Vs. NAZIM HUSAIN

JUDGEMENT

(1.) These are two connected revision applications which can be conveniently disposed of together. In connexion with a murder charge Chhote Lal and Nazim Husain made statements before a Magistrate. Khan Bahadur Syed Muhammad Isa, the complainant, alleged that these statements were defamatory towards him and in connexion with them he filed complaints against Chhote Lal and Nazim Husain under Section 500, I.P.C. The learned trial Magistrate was of opinion that the complaints of the complainant were incompetent. According to his view, no case could be started against the two accused persons unless there was a complaint made by the judicial officer before whom the alleged defamatory statements were made. The two complaints were dismissed. The applicant filed revisions before the learned Sessions Judge who summarily rejected them. The applicant has now come up in revision before this Court.

(2.) Two points arise for consideration in this case. The first is whether the statements made by the accused persons during the judicial proceedings are absolutely privileged and for that reason the complaints by the complainant were incompetent. The second is whether a complaint could be made by a private person without the sanction of the Magistrate before whom the alleged defamatory statements were made. I will at first deal with the first point. I do not think that the statements made in judicial proceedings are absolutely privileged. In Ganga Prasad V/s. Banke Lal (1907) 29 All 685, a Full Bench of this Court held that the question of criminal liability of a witness for defamation for statements made in course of their depositions must be decided by what is laid down in the Indian Penal Code without regard to the state of law in England or considerations of what would be desirable in the interest of public policy and administration of justice.

(3.) The majority view in this Full Bench was that when a witness makes a statement which is defamatory of a third party in a judicial proceeding he can be convicted of defamation. In Bai Shanta V/s. Umrao Amir Malik , a Full Bench of the Bombay High Court held that the statement made by a witness in judicial proceedings was not absolutely protected from being made the subject of a prosecution for defamation under Section 500, I.P.C., on the ground of public policy or exceptions derived from the common law of England, apart from the provisions of Section 499, I.P.C. In view of these two Full Bench rulings, I am of opinion that the view taken by the learned trial Magistrate is not correct. It appears to me to be quite clear that so far as this Court is concerned it is well settled as a result of the Full Bench ruling referred to above that there is no absolute privilege and that a person making a defamatory statement in the course of a judicial proceeding can be prosecuted for defamation. This view is supported by the Full Bench ruling of the Bombay High Court referred to above.