A complaint of defamation in relation to criminal proceedings can be filed by the affected party and is not solely the prerogative of the Court.

Alfred Henry Lionel Leach, C.J.

1. The petitioner was convicted by the Joint Magistrate of Karur under Section 500 of the Indian Penal Code for the defamation of his wife. He was ordered to pay a fine of Rs. 100 and in default of payment to undergo simple imprisonment for three months. The defamatory words had been uttered by the petitioner when giving evidence in support of a complaint filed by him to the effect that his wife had been guilty of theft. In the course of his evidence in support of the complaint he accused his wife of unchastity. They had quarrelled and she was living separately, but in the same building. The conviction of the petitioner was confirmed by the Sessions Judge of Trichinopoly on appeal. The petitioner now asks this Court to set aside the conviction on the ground that a complaint of defamation which is based on a statement in Court can only be filed by the Court in which the statement was made. There are conflicting decisions of this Court on the question. In three cases Lakshmana Rao, J., has expressed the opinion that the complaint must be filed by the Court, while Burn, J., has expressed an opinion to the contrary.

2. The first of the decisions by Lakshmana Rao, J., was given in Shanmughasundaram Pillai v. Manicka Mudaliar AIR1939Mad368 . In that case the petitioner charged the son-in-law of the respondent with theft of certain documents and records and in an affidavit filed in support of an application for a search warrant stated that some of the articles had been secreted in the house of the respondent. A search warrant was issued and in accordance with this authority the respondents house was searched. Nothing was, however, found there and the son-in-law was ultimately discharged. The learned Judge considered that as the complaint of defamation was founded on false evidence the offence would fall within Section 193 of the Penal Code and was only cognizable on a complaint by the Court. In support of his order Lakshmana Rao, J., relied on the decision of this Court in Appadurai Nainar In re (1935)69MLJ812 , to which reference will be made presently. The learned Judge expressed a similar opinion in Ganapati Asari v. Kuppuswami Asari (1939) 1 M.L.J. 614 : 1939 M.W.N. 320 and in Ramaswami Konar v. Nachiar Ammal (1940)2MLJ491 .

3. The opinion of Burn, J., was stated in Venkataramanjulu Chetti v. Kanniah Chetti (1933) M.W.N. 1263 and is to be gathered from the following excerpt from his judgment:

The mere fact that the defamation is committed in, or in relation to, criminal proceedings in a Court is not a reason for requiring the sanction of that Court or for requiring that Court to prefer a complaint.... The petitioner in this case has complained of the acts which have, according to him, caused harm to his reputation; he has no concern with the same acts in so far as they may have constituted an offence against public justice.

4. The provisions of Section 195 of the Code of Criminal Procedure do not apply to defamation. This Court has held in Tiruvengada Mudali v. Tripurasundari Ammal AIR1926Mad906 , that a person who is defamed by a witness when in the witness-box is at liberty to file a complaint against his defamer under the provisions of the Indian Penal Code. When such a right exists it can only be taken away by an express statutory provision to that effect. There is nothing in Section 195 of the Code of Criminal Procedure, or in any other part of that Code, or in any other enactment which takes away this right.

5. We consider that an examination of the judgment in Appadurai Nainar, In re (1935)69MLJ812 , does not render real support for the opinion that when a person is defamed in evidence given in support of an offence which falls within the purview of Section 195 of the Code of Criminal Procedure, the Court in which the defamation takes place must lay the complaint charging the witness with defamation. In Appadurai Nainar, In re (1935)69MLJ812 , the facts were these. A Civil Court had held t