JUDGMENT

Harington, J. - This is an appeal by the Plaintiff against the judgment of the Subordinate Judge dismissing with costs an action which he brought for slander. The Defendant was a witness in a case before a Deputy Magistrate : in the course of his cross-examination he was asked whether his sister was in the employ of Tokhan Singh as cook instead of answering the question he said "the sister of Girwar Singh (the Plaintiff) is in the keeping of a Kaisth."

2. On this Girwar Singh sued the Defendant for slander and recovered a judgment for Rs. 500 damages before the Munsif. This was reversed on appeal on the ground that a slander imputing unchastity to a woman was not actionable without proof of special damage, and in this case no actual damage was proved.

3. The learned vakil for the Appellant contends that in the mofussil defamatory words are actionable without proof of actual damage.

4. For the Respondent it is contended that where no actual damage is sustained, redress must be sought through the Criminal Courts, and that the words without actual damage are not actionable : that in any case the suit is not maintainable by the Plaintiff because he was not slandered : and lastly that the occasion on which the words were spoken was privileged.

5. With the last contention I disagree and I do not think the cases laying down that words spoken in the course of an examination by a witness in a judicial enquiry are privileged even if they are irrelevant, touch the point. In this case the words were not spoken in the course of an examination in a judicial enquiry. The words had no sort of connection with the examination and were in no sense an answer to the question put to the witness. While I quite agree with the dictum that what a witness says in the course of his examination is privileged even if irrelevant, I am of opinion that no witness is entitled to claim privilege for a slanderous statement wantonly made which is neither au answer to any question addressed to him in examination or cross-examination, nor has any connection at all with the case under trial.

6. In my opinion the judgment of the lower Appellate Court must be supported on the second ground taken, i.e., no action will lie at the suit of the Plaintiff because the words are neither defamatory of him nor have they caused him any injury.

7. The only person who can sue for defamatory words is the person defamed. He may be defamed directly or the slander may be only indirectly defamatory of him, as for example, a slander may be uttered of A. which implies that B. has committed au indictable offence. Then of course B. can sue. In the present case the words complained of can bear no innuendo imputing any sort of misconduct to the Plaintiff.

8. Had the words, though in the first instance defamatory to the Plaintiff's sister, been calculated to cause actual damage to the Plaintiff then under the principle laid down in Ratcliffe v. Evans L.R. (1892) 2 Q.B. 524 they would, if they had caused the Plaint id' actual damage, been actionable in a suit by him.

9. The learned vakil for the Respondent contends that the Plaintiff would have been entitled to institute a prosecution under sec. 499 of the Indian Penal Code and that he is therefore entitled to sue. I do not agree with this proposition.

10. Even if it be conceded that the Plaintiff would have been entitled to prosecute under sec. 499 of the Indian Penal Code as a person aggrieved under sec. 198, Cr. P.C., it by no means follows that he is entitled to bring a suit. If it could be contended that when the Criminal Procedure Code gives a person the power to prosecute it ex necessitate gives to that person a right to sue in tort, notwithstanding that the tort is not committed against him but against some one else and he has suffered no sort of damage from it, then it would follow that under sec. 199 a person who had the care of a married woman could get damages from a person who enticed her away, notwithstanding that she was not his