1982 Supreme(Del) 238

High Court Of Delhi
ASHOK KUMAR - Appellant
Versus
RADHA KISHAN VIJ - Respondent
CRIMINAL APPEAL 254 of 1981
Decided On : 09/01/1982

Headnote:Indian Penal Code, 1860-Sections 499, 500-Circumstances in which a defamation is excusable-Defamation both a civil injury and a Criminal Offence Law of tort and Criminal Defamation Law distinguished-Codification of Criminal liability for defamation in India-Impact of this situation upon the facts of the present case-

       Facts-

       The petitioner Ashok Kumar filed a compliant against three respondents under section 500 Indian Penal Code for launching a false criminal proceeding against him under sections 107/151 Criminal Procedure Code in which he was ultimately acquitted. The complaint of the petitioner was dismissed by the Magistrate in limine holding that it was not maintainable. He formed the view that the accused enjoy complete immunity by reason of absolute privilege and no complaint therefore can be preferred under section 500 Indian Penal Code.

       The petitioner then went in High Court in revision. The following questions arose for consideration:

       Questions-

        1. What are the privileges under which a defamation is excusable?

        2. What is the nature of the wrong and crime of defamation as civil injury and as crime?

        3. What is the distinction between the law of tort on defamation and the criminal law on defamation in India? What is the distinction between the two?

        4. How codification of criminal liability in India has changed the position from that of the English law on the subject, and what is the impact of this position on the case of the petitioner.

       Decision-

       The High Court allowed the revision petition and remanded the case for disposal according to the principles of law indicated.

       Reasons-

        1. In the law of defamation it is a defence that the statement was made on a privileged occasion. In certain circumstances it is excusable to publish matter which is defamatory. Such excuse is termed privilege. Privilege is of two kinds; (i) absolute, (ii) qualified. If the occasion is of one of absolute privilege this is a complete bar to an action for defamation, however irresponsible or malicious the statement may be. A person defamed on an occasion of absolute privilege has no legal refers, however out rage us the untrue statement which has been made about him and however malicious the motive of the maker of it. If on the other hand, the occasion is one of qualified privilege, the privilege may be defeated by proof of malice. If the maker of the statement is actuated by made he forfeits he is protection of the shield of qualified privilege. The right of free speech is allowed wholly to prevail over the right of reputation in case of absolute privilege. The right of freedom of speech prevails over the right of reputation, but only to a limited extent in cases of qualified privilege.

        2. Defamation is, and has always been regarded as both a civil injury and a criminal offence. The person defamed may pursue his remedy for damages or file a criminal prosecution. Or he may concurrently both sue for damages and prosecute, as the petitioner has done. Both in civil law and crime the person defamed can vindicate his honour.

        3. Anomalous as it may seem, the law of tort of defamation is different from the criminal law of defamation in this country. In the law of tort we follow the English law. The civil liability for defamation to pay damages is not governed by any statute but is determined with reference to the principles of justice, enquiry and good conscience which have been imported into this country from the English law. In civil sections for damages there is what has been called "judicial privilege". Neither party, witness, counsel, nor judge can be sued civilly for words spoken or written in the course of any proceeding before any court or tribunal recognized by law. This is absolute privilege.

        4. With criminal liability it is different. The criminal liability for defamation is modified in India. It is enacted in section 499 of the Penal Code and differs from the law of England. Section 499 confers only qualified privilege on certain occasions. It is common to speak of the statement as having privilege, but the better view is that it is an occasion and not the statement which is privileged. A complete list of these occasions is furnished by nine exceptions enacted in section 499. The Indian Penal Code exhaustively codifies the law relating to offences with which it deals and the rules of the common law cannot be resorted to for inventing exemptions which are not expressly enacted. In the present case the Magistrate held that the respondents are protected by absolute privilege. He was clearly wrong. He was misled by cases of tort for defamation or malicious prosecution in which civil suits for damages were instituted and the courts held that the defendants were protected by absolute privilege.