Devadoss, J - (1.)The petitioner is being prosecuted for defamation in respect of certain statements made by him as a witness before arbitrators. He has applied to this Court for quashing the proceedings against him on the ground that no indictment for defamation would lie in respect of statements made in answer to questions by counsel. The question for determination is : "Is a witness absolutely privileged as regards statements made by him on oath in answer to questions by counsel or Court except as to a charge for perjury?" So far as the Criminal Law of this country is concerned, defamation is defined in Section 499 of the Indian Penal Code. Section 499 contains ten exceptions and a person who pleads privilege has to bring himself within one or more of the ten exceptions. The first exception and the 9 exception afford sufficient protection to a witness; in the case of the first exception, the imputation should be true and for the public good, and in the case of the ninth exception, imputation should be made in good faith for the protection of the interest of the person making it or of any other person or for public good. What is claimed for the petitioner is absolute privilege whether the statement be relevant or irrelevant, bona fide or malicious or false or true. In other words, a eleventh exception is sought to be added to Section 499 to provide for the case of witnesses.
(2.)The Criminal Law of India as to defamation is different in many respects from the English Law. Under the Indian Penal Code all libels and slanders are indictable, for Section 499 begins thus: Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes, etc....
(3.)Under the English Law slander is not indictable except in the case of slanderous words to a Magistrate in the execution of his office. Only certain cases of libel are indictable, such as seditious libel, blasphemous libel, libel affecting the administration of justice, obscene libel and defamatory libel calculated or intended to provoke a breach of the peace or to expose a person to public hatred, contempt or ridicule or to damage his reputation. In the Indian Criminal Law there is no distinction between libel and slander. When a statute like the Penal Code contains exhaustive provisions as to the law of defamation we cannot hold that an exception was left out and that the Court should engraft an exception to the codified law. The Indian Penal Code which was drafted by Lord Macaulay in the early thirties and was considered by more than one Law Commission did not become law till 1860. When a Code has been in a state of gestation for more than 20 years, it should not be lightly considered to have omitted anything material. The framers of the Indian Penal Code were English lawyers who were familiar with the state of the law at the time in England, and if they had wanted to give absolute protection to a witness, they would have done so in so many words and it is bad policy to add to codified law some of the provisions of the English Common Law on the ground that the codified law is silent as to them. The words of a statute should not be departed from on the ground that something was omitted to be enacted. In this view I hold that a witness has not absolute privilege as regards the statements made by him but has only a qualified privilege under the ninth exception or first exception to Section 499 of the Indian Penal Code. In Gopal Naidu V/s. King-Emperor (1922) I.L.R. 46 M. 605 : 44 M.L.J. 655 (F.B.) it was held: The Criminal Law of India has been codified in the Indian Penal Code and the Criminal Procedure Code the former Code deals specifically with offences and states what matters will afford an excuse or a defence to a charge of any offence and the Court is not entitled to invoke the Common Law of England in such matters at all.