S.S.Dhavan, J. - (1.)THIS is a plaintiffs second appeal from the decree of the Additional Civil Judge, Deoria reversing that of the First Additional Munsif, Deoria and dismissing his suit for recovery of Rs 500 from the defendant-- respondent as damages for slander. The plaintiff appellant Rajindra Kishore Sahi is a practicing lawyer of Deoria and that the defendant respondent Durga Sahi is his pattidar. The relations between them have been bad, and a number of proceedings, civil and criminal, have been fought between them. In 1959 the dispute led to proceedings under Section 107 Cr.P.C. and there were two cross-cases. In one of them the plaintiff-appellant and his brother were the accused, (State v. Ravindra Kishore Sahi and others) and in the other the defendant respondent Durga Sahi and his party were the accused. The case against the plaintiff-appellant was heard on 6-2-1959 and Durga Sahi gave evidence as a prosecution witness.
The plaintiff appellant, who appeared as counsel for himself and his brother, cross-examined Durga Sahi. During the cross-examination the appellant asked him whether he had ever been convicted of theft under Section 379 I.P.C., and Durga Sahi replied that he was not a thief and then volunteered the statement that the appellant himself was a thief A little later he explained that he did not mean that the appellant was a thief but that he harboured thieves, and patronised all the badmashes in the village. He also made a statement that the appellant's, grandfather Manandeo Prasad Sahi had been convicted under Section 110. The exact words used by the respondent Durga Sahi were these: "Mannan Deo Prasad Sahi Ki 110 Men Sal Bhar ki saja huwi thi.... Chor aap khud hain... Rajemlra Kishore Sahi ko chor kahta hun. Yah kahta hun ki way chor rakhte hain. Dehat ke tamam badmash aap rakhte hain."
After the proceedings, the plaintiff appellant filed the present suit. He contended that the statement that he was a thief or harboured thieves and badmashes was false and defamatory, and had been made by the respondent Durga Sahi maliciously and with intent to defame the appellant. The respondent resisted the suit and denied all liability. He contended that the words imputed to him were never uttered by him; alternatively that they were absolutely privileged as he had made them while giving evidence in judicial proceedings before a court of law.
(2.)THE trial court believed the plaintiff-appellant and disbelieved the respondent, and held that the respondent did make the statements imputed to him. It also held that the abatements were false and defamatory of the appellant. It further held that the statements were not privileged as they were volunteered and, not made in reply to the question put to the respondent in cross-examination. It held that the appellant was entitled to recover damages from the respondent and awarded a decree of Rs. 500. On appeal the learned Additional Civil Judge agreed with the trial court teat the respondent did make the statements alleged against him and that they were defamatory, but held that no action for defamation lay against the respondent as the statements were made by him as a witness, in judicial proceedings and were absolutely privileged. He allowed the appeal and dismissed the suit. The plaintiff has come here in second appeal.
Learned counsel for the appellant argued that the view of the lower appellate court that the statements are absolutely privileged is erroneous. He contended that a witness who, when asked a question in cross-examination while answering it makes a slanderous and defamatory statement against the counsel loses his privilege as a witness and becomes liable to pay damages for defamation. On the other hand counsel for the respondent contended that the statement of a witness in judicial proceedings is absolutely privileged, however malicious, irrelevant or defamatory it might be.

(3.)THIS case involves the question of defining the limits to the doctrine of absolute privilege as regards statements made by a witness on oath in judicial proceedings for which he is subsequently sued for defamation. Under the English Law the following statements are absolutely privileged, so that no action will lie in respect of them, however false, defamatory and malicious they may be:--
1. Any statement made in the course of and with reference to judicial proceedings made by am Judge. Jury man, party, witness, or advocate. (It is not necessary for me to consider the other classes of privileged statements). But it is important to note that the statement to be privileged must be made in the course of and with reference to judicial proceedings. If the offending statement has no connection with the proceedings, and is made wantonly and without reference to these proceedings, the person making them cannot claim privilege. This qualification is explained by Salmond as follows: "The statement, in order to be privileged, need not be relevant, in the sense of having a material bearing upon the matter in issue in the case. Thus, the statement of a witness is privileged, even though inadmissible as evidence, and even though so immaterial that no prosecution for perjury would be possible in respect of it. Nevertheless the statement, though it need not be relevant in this sense, must, it would seem, be made in the course of and with reference to the case in hand. A judge who from the bench makes a defamatory observation in respect of some entirely extraneous matter would no longer be speaking in his capacity as a judge, and would have no privilege-- Salmond on Torts, 11th Edition page 461. Winfield explains the limits of absolute privilege as regards statements made in judicial proceedings thus: "The statement is not privileged if it has no reference to the inquiry which is proceeding. This is generously interpreted and the privilege of a witness is not limited to statements for which, if untrue, he might be indicted for perjury. But it would not extend to an entirely irrelevant answer unprovoked by any question put to him: e.g. June?" he replies, "Yes, and X picked my pocket there". Winfleld on Torts, 6th Edition P. 335.