Manohar Lall, J.@mdashThis is an application in revision on behalf of Sheokaran Lal who has been convicted for an offence u/s 500, Penal Code, and sentenced to pay a fine of Rupees 100, in default three months'' rigorous imprisonment. For some reason or other, serious differences have arisen between the petitioner and his brother Sheoprasad Lal. A number of cases--civil and criminal--have been or are being fought out between these two brothers who belong to a respectable family. A proceeding u/s 145, Criminal P.C., was pending some time ago between the petitioner and his brother with regard to possession of a house. In that case the petitioner was examined as a witness on 11th August 1941. His evidence in chief was to the effect that as a result of a partition he was living separately from his brother and that he got the western portion of the disputed house which was the residential house of the family. He also deposed that on 2nd June 1941, when he sent his servant Hira with masons and labourers for repairing the house they were obstructed by the second party and his men. This led to the drawing up of a proceeding u/s 145, Criminal P.C. On 12th August 1941, cross-examination of the petitioner began in these proceedings before Mr. V. Jha, a Deputy Magistrate. In the beginning of the cross-examination the petitioner was asked as to what his age was when Baiju Babu died. He said he was nine years old. Then in answer to a further question he stated that his present aunt was his uncle''s only wife and she was 17 or 18 years at that time. He was adopted by Baiju Babu in 1973-74. A number of questions were put to this witness which appeared to make veiled suggestions about his relationship with his adoptive mother, namely, his aunt. The witness was then asked as to his relationship with his wife. It is desirable to quote the answers:
I am on good terms with my wife. There was never any trouble about her coming from Bombay. Once she came about two years ago with a servant. In 1939 she was sent to Bombay and after staying there for four or five months she was sent back through a servant of my father-in-law. She was sent from here through a servant of my father-in-law. In 1939 when my wife returned from Bombay, she came and stayed in the old house. It is not a fact that she was not allowed to enter the old house, where I am living and that she had to seek shelter in the new house. Rs. 50,000 belonging to my aunt is deposited with my father-in-law in my name about 15 days after the partition as it war. not deposited in the name of his Samdhin. Over this sum of money, there was no trouble between myself and my father-in-law. It is not a fact that in respect of my refusal to admit my wife in my house and also regarding the trouble of Rs. 50,000 my father in-law had written any letter to Shiva Prasad Babu and that for this, I bear any grudge against Shiva Prasad Babu.
(2) I had never tried to marry for the second time when there was trouble regarding my wife or Rupees 50,000. I know Pandit Kanhaiya Lall (P.W. 7) since 15 or 16 years. I never attempted to have a second marriage through him. It is not a fact that Shiva Prasad Babu objected to my second marriage and hence I have grudge against him.
2. It is impossible for me to conceive why the learned Deputy Magistrate allowed these most objectionable and irrelevant questions to be put in a caws u/s 145, Criminal P.C. The Deputy Magistrate, a witness in the defamation caw), refused to disclose the reason for allowing these questions as the Section 145 case was still pending. It is clear that the witness was being closely cross-examined regarding his relationship with his wife. The clear implication was that his wife was not of good character and he was refusing to live with her and was actually contemplating a second marriage. While answering this series of questions, the petitioner is said to have stated that he was not pulling on well with his wife and father-in-law (and this was his explanation as to the cause of ill-feeling with his brother) as he had illicit connexion with the wife of Sheoprasad Lal Seth. The relevant words are: "Sheoprasad Lal ka wife se anuchit sambandh tha." On 18th October 1941, a complaint was filed by one Bundi Prasad as the servant of Gilki Bai, wife of Sheoprasad Lal Seth complaining that she had been defamed by the aforesaid answer given by the petitioner in cross-examination. The petitioner was accordingly summoned u/s 500, Penal Code.
3. His defence was that he has not defamed his brother''s wife, bat that in the course of his cross-examination u/s 145, Criminal P.C., proceedings on behalf of Sheoprasad Lal his pleader put highly insulting questions to him about his wife and mother, that the questions were deliberately false, insulting, scandalous and irrelevant, that the pleaders on behalf of the petitioner protested that these questions should not be allowed to be asked, but the objection was not listened to. This exasperated the petitioner, and he could not tolerate the insult any more.
4. Therefore, he lost his control over himself and over such scandalous questions. In order to stop them he abused Sheoprasad Lal and stated that he had "anuchit sambandh" with the wife of Sheoprasad Lal. The Courts below have concurrently come to the conclusion that the petitioner did make the statements alleged in the petition of complaint to have been made by him in his cross-examination, that the words were highly defamatory and that the accused cannot claim protection under any of the exceptions to Section 500, Penal Code. The Courts below also overruled the contention on behalf of the accused that he was protected u/s 132, Evidence Act. It was forcibly argued on behalf of the petitioner by Mr. S.N. Sahay that when the Deputy Magistrate has not recorded the exact question and answer, it would be unsafe to convict the petitioner. He also argued that in law it was not permissible to convict the petitioner when the question and answer had not been reduced to writing. He relied upon a decision of the learned Chief Justice in Jainarain Singh v. Emperor A. I. R. 1941 Pat 9. In the next place, he argued that he was fully protected by the provisions of Section 132, Evidence Act.
5. The Courts below have held concurrently that the petitioner did utter the words which I have reproduced above, and this fact is not denied by the petitioner in his examination u/s 342, Criminal P.C. Pandit V. Jha was a witness for the prosecution in this case and he says that in the course of the cross-examination Sheokaran Lal was asked by the pleader for the opposite party if he was pulling on well with his wife and father-in-law and that in answer to the question, Sheokaran Lal stated that he was not pulling on well with his wife as he had illicit connexion with the wife of Sheoprasad Seth. The evidence of this witness must be believed and is corroborated by the evidence of some other witnesses who were present at the time of the trial of that case. In these circumstances, I am bound to accept the finding of fact as correct that the petitioner did utter these words. The case relied upon is Jainarain Singh v. Emperor A. I. R. 1941 Pat 9 where the learned Chief Justice observed:
Where a charge of defamation is based on an answer to a question much turns upon the precise form of question and the precise form of the answer. If a Court is not satisfied on these matters, it is impossible to maintain a conviction. It is not sufficient for a Court to come to the conclusion that substantially something or other was said. The Court must be satisfied that certain words were used.
6. I do not take this case to decide that if the precise question and answer are not reduced to the form of writing the Court cannot in law ever come to a conclusion as to what the words were that were uttered. All that the learned Chief Justice points out is that it would be unsafe to come to a conclusion that substantially something or other was said unless the exact words which were uttered can be safely relied upon the evidence produced in the case. In the present case, the Courts below have come to the conclusion that the words uttered were that Sheokaran Lal had "anuchit sambandh" with his brother''s wife. There is no ambiguity about this. It may be observed that in the case before the learned Chief Justice he held that
it is difficult to base a conviction for a defamation when the precise words uttered by the accused are not before the Court. As I have stated, no record of Jainarain''s answer was kept and as the Divisional Inspector first gave evidence two months after the occurrence he did not pretend to remember what the words were. In cross-examination three and a half months after the occurrence he gave verbatim what Jainarain is alleged to have said.
7. It was in these circumstances, the learned Chief Justice said:
It is very difficult to accept such evidence having regard to the lapse of time. Police officers of this kind are always taking statements, and I for one find it quite impossible to accept the Divisional Inspector''s evidence given three and a half months afterwards as an accurate statement of what Jainarain said.
8. This case does not help the petitioner. The next question is what was the exact question to which this answer was given and what was the stage at which this answer was given. The cross-examination of the learned Deputy Magistrate shows that he is unable to say whether the question as to whether Sheokaran Lal was pulling on well with his wife was put to him once or several times. He also says that perhaps there was an opposition by the pleaders of Sheokaran Lal when these questions were put regarding the relationship of Sheokaran Lal with his wife. But I am satisfied that it was in answer to a series of questions put, that the answers which I have reproduced above were given including the defamatory answer. The witness was being pressed that the reason why there was ill-feeling between him and his brother was that the petitioner did not pull, on well with his wife and his father-in-law. It was suggested to the witness that his wife had come after some time from Bombay with his servant and was not allowed to live in the old house. Veiled suggestions were made to the witness regarding his relationship with his adoptive mother. It was also suggested to the witness that he wanted to marry a second time. In other words, on behalf of the opposite party it was being insisted that the petitioner was not on good terms with his wife and father-in-law because of the behaviour of his wife, and, therefore, he was on bad terms with his brother who was not agreeing to his marrying a second time on his refusal to thus admit his wife in the house. At this stage the petitioner replied that the reason why he was not pulling on well with his wife was that he had illicit intercourse with his brother''s wife. In my opinion this is an answer to a question which the witness was being required at this stage by a series of questions to answer. Whether the answer is true or false is not relevant for the purposes of this case, but most probably the answer was false.
9. Was this answer given voluntarily? The Deputy Magistrate himself in the course of his cross-examination stated that he did not remember whether he allowed or disallowed this question, but he added that he did not record the answer to that question as the answer to that question appeared to be irrelevant and then stated:
I have volunteered the last portion of my answer as I wanted to give a reason for not recording the answer to the question.... At times a witness states the reason of his answer so that it may not be given any other implication than what is intended.
10. Now, this is exactly what happened in this case. Even if it is assumed that the particular answer was volunteered to be an answer to the main question as to why he was on bad terms with his brother, it was quite natural and permissible for him to give that answer which in the witness''s opinion gave the reason why his brother was on bad terms with him. In my opinion this answer was not irrelevant and was an answer to a question put to the witness as to what was the reason why he was on bad terms with his brother. The foundation for the ill-feeling between the brothers was sought to be laid on the fact that the witness was on bad terms with his wife, because her character was not good. Having thus cleared the ground as to what the question put to the witness was and at what stage the question was put to which the impugned answer was given, I now proceed to consider whether it does not come under the protection of Section 132, Evidence Act. That section provides:
A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind : Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
11. As I have already said, the witness in the present case was being asked a number of questions as to why he was on bad terms with his brother. When the opposite side cross-examined him as to his relationship with his wife, he protested, but his protest was overruled. I believe the statement of the accused u/s 342, Criminal P.C., that protest was made on behalf of his lawyers to these questions. A special lawyer from Calcutta was engaged to put these questions because the local lawyers very properly refused to put these scandalous and irrelevant questions. The witness was, therefore, bound to answer, and in my opinion, compelled to answer questions as to why he was on bad terms with his brother consequent on his being on bad terms with his wife and father-in-law. A large number of cases were cited on behalf of the petitioner to show when in law it can be said that a witness has been compelled to give an answer within the meaning of Section 132, Evidence Act, but, in my opinion, it is a question of fact to be determined by the tribunal in each case. In Emperor v. Banarsi AIR 1924 All. 381 a bench of the Allahabad High Court held that:
The proviso (that is the proviso to Section 132, Evidence Act) in this instance, as in most other cases, really depends upon the right moaning to be given to the word "compelled." It has been held that the word "compelled" involves the necessity of a formal objection to giving the answer, and an order made at the time to the witness compelling him to answer. We are of opinion that that is too narrow an interpretation. The matter has been recently discussed in two or three eases, particularly by a member of this Court in
12. In my opinion this is the correct way in which this question should be approached. In Peddabba Reddi v. Varada Reddi AIR 1929 Mad. 236 a Bench of the Madras High Court while considering the meaning of this proviso held that:
The proviso protects him from arrest or prosecution or proof of the statement in criminal proceedings against him except as to perjury. The compulsion contemplated in Section 132 is something more than being put into the box and being sworn to give evidence, the compulsion may be express or implied. It is not necessary that the compulsion must be in any set form of words or that the asking for protection should be in a particular form.
13. I have come across the ease in Baboo Gunesh Dutt Singh v. Mugneeram Chowdry (72) 17 W.R. 283 in which the following important passage occurs in the course of the judgment:
...That it concerns the public and the administration of justice that witnesses giving their evidence on oath in a Court of justice should not have before their eyes the fear to being harassed by suits for damages; but that the only penalty which they should incur if they give evidence falsely should be an indictment for perjury.
14. In the present case the Court did not listen to the objection raised on behalf of the accused and did not stop the witness from answering the question put to him about his relationship with his wife, his mother and his father-in-law. The Court did not tell the petitioner on his objection that he need not answer the question "Was it not a fact that he was on bad terms with his brother because of his relationship with his wife and father-in-law?" but by overruling the objection compelled him to answer the questions put. The accused, in my opinion, had a right to answer the question put to him in any way he thought proper because he was compelled in my opinion to answer the question. Whether the answer was deliberately false is quite irrelevant for the present inquiry. For these reasons I am of the opinion that the petitioner is entitled to claim the protection afforded by Section 132, Evidence Act. It was argued by Mr. S.N. Sahay that as the Deputy Magistrate did not record the answer given by the petitioner the prosecution is debarred from proving it by any oral evidence. He relied on Kadir Pakiri v. Emperor AIR 1918 L.B. 129 and Mohendra Nath Missir v. Emperor 12 C.W.N. 845. But I am unable to agree with this contention. If the Court has made a record, then no other evidence was admissible except by the proof of the statement which was thus reduced to writing. But in this case there is no written record, and, therefore, in my opinion, the prosecution was free to prove by oral evidence the actual words which are the subject of this prosecution. It was also contended by Mr. S.N. Sahay that the petitioner uttered these words merely as an abuse. I do not agree with this contention either. These words are not words of abuse but were intended to convey a certain impression.
15. It was also argued by Mr. S.N. Sahay that the Court was wrong in giving leave to the complainant in this case to file a complaint on behalf of the lady. He points out that the lady did not give any written authority to file the petition on her behalf. But the evidence of the complainant shows that he filed this complaint with the oral authority from the lady. The complainant is the servant of this lady and he says he informed her as to the defamatory statement and he was authorized by her to file this complaint. It is true that the husband of the complainant''s malik was actually present in Court, and he does not seem to have taken any serious notice of the statement, nor did he move in the matter. But that is no ground for holding that the leave of the Court was not properly given within the meaning of Section 198, Criminal P.C. The Courts below have come to the conclusion that the complainant was duly authorized by the lady. The lady is a pardanasheen lady, and I am satisfied that the provisions of Section 198, Criminal P.C., have been complied with. Reliance was placed, on behalf of the petitioner, on the cases in Gurdit Singh v. Emperor AIR 1924 Lah. 559 and Emperor v. Imitiazan (02) 25 All. 132. These cases do not support the contention raised by Mr. S.N. Sahay. For these reasons I am of the opinion that the petitioner should be acquitted of the charge u/s 500, Penal Code, and the fine, if paid by him, should be refunded.
Chatterji, J.
16. I agree. I was at first inclined to think that the petitioner volunteered the defamatory statement complained of in answer to a question to which it was not a relevant answer, and therefore he was not entitled to the protection of the proviso to Section 132, Evidence Act. But after having gone through his deposition in connection with which he made the defamatory statement and through the evidence of the Magistrate P.W. 2 who recorded his deposition, I do not feel justified in holding that it was a volunteered answer. It appears that the petitioner in his cross-examination was repeatedly asked questions suggestive of his wife''s unchastity, and though his pleader objected, the questions were allowed by the Magistrate and he had to give answer. The evidence of the Magistrate, which has been accepted by the Courts below, shows that the defamatory statement was made by the petitioner in answer to the question "If he was pulling on well with his wife and father-in-law." His evidence also shows that
when the question whether Sheokaran Lal was pulling on well with his wife was put, perhaps there was opposition by the pleader of Sheokaran Lal.
17. He says he does not remember whether he allowed or disallowed the question. But apparently he did not disallow the question, as will appear from his next following statement.
I did not record the answer to that question as the answer given to that question appeared to be irrelevant.
18. His refusal to record the answer on the ground that it was irrelevant itself implies that the question was allowed. Though there is no evidence at what stage of the petitioner''s cross-examination he was asked the question in answer to which he made the defamatory statement, it is pretty clear that it must have been the last of the objectionable questions involving his wife, because the startling answer given to this question must have gagged the mouth of the cross-examiner. The petitioner had had to answer similar questions, though objection was taken by his pleader. The implied suggestion in those questions was that his wife was unchaste and for that reason he was not pulling on well with her. This was also the implication in the question in answer to which the defamatory statement was made. This question was allowed by the Court in spite of the pleader''s protest, and naturally the petitioner thought he was bound to give answer. The object of the cross-examiner was not only to elicit the answer that the petitioner was not pulling on well with his wife but also the reason for it. The petitioner answered that he was not pulling on well with his wife as he had illicit connexion with the wife of his brother. He thus gave the desired answer and also his reason. Whether the reason given by him was well founded or not, it was given in answer to the question put to him. His answer, therefore, cannot be said to be a volunteered statement.
19. This view is in no way opposed to the petitioner''s statements u/s 342, Criminal P.C. The substance of those statements is that the cross-examining pleader asked him several insulting and scandalous questions regarding his wife, his mother (adoptive) and himself, and in spite of protests such questions were repeated; he then lost control over himself, and, in order to stop such scandalous questions, he gave the answer complained of. Whatever his object in giving the answer might be, the answer was quite within the scope of the question the purpose of which I have already indicated. That being so, the answer cannot be said to be irrelevant or volunteered.
20. I do not think Section 132 requires that the witness, before he can claim protection under the proviso, must first ask to be excused from answering the question on the ground that the answer will criminate him. What the section really means is that the witness is bound to answer all relevant questions, even though the, answer may criminate him, but he will not be liable to prosecution except for perjury. Questions which are allowed by the Court in spite of objection by the pleader must be deemed to be relevant, so far as the witness is concerned, and he is bound to give answer. Answer so given is an answer which the witness is "compelled to give" within the meaning of Section 132. This is exactly the position in the present case. The petitioner, therefore, is entitled to the protection of the proviso to Section 132.
