Ravi Nandan Sahay, J.
1. The appellant Kalawati Devi brought a suit for damages for defamation against the respondent. The suit was decreed by the 2nd Additional Munsif, Siwan. The appellant was awarded compensation of Rs. 800/-. On appeal, learned Additional District Judge, Siwan reversed the decree dismissing the suit on the short ground that the claim for compensation for defamation was not maintainable since the defamatory statement was made in a Court proceeding which was absolutely privileged.
2. The only question for consideration is whether the appellate Court took the correct view of the law.
3. The case of the plaintiff is that one Mathura Lal was husband of the plaintiff. He was joint with his brother Thakur Prasad, who died issueless. Mathura Lal died leaving behind sole heir the plaintiff-appellant. One Baleshwar Lal is cousin of Mathura Lai. After the death of Mathura Lal, aforesaid Baleshwar Lal started living with the plaintiff and looking after the affairs of the family. According to the plaintiff, the defendant is an old enemy of the plaintiffs family. He started dispute with an intention to grab the plaintiff's land for which a proceeding under Section 144, Cr.P.C. was started which was later converted under Section 145, Cr.P.C. The defendant's claimed the suit land on the basis of certain sale-deed. The defendants filed show cause in 145, Cr.P.C. proceeding in which he alleged that the plaintiff was a lady of very bad character and leads immoral life so much so that soon after the death of Mathura Lai she married Balehswar Lal. The plaintiff alleged that the statement of the defendant was false out and out and it was read in presence of many persons in open Court. The plaintiff being aggrieved with such reckless allegation filed suit for compensation.
4. In the written statement, the defendant did not deny the allegation, rather he has asserted the fact to be true. The appellate Court in para-22 of the judgment has held as follows:
22. Thus on analysing and weighing the evidence adduced by the parties before the Munsif, I find that the statement of the appellant in para-4 of his show cause in the proceeding under Section 144, Cr.P.C. i.e. First Party No. 2 Kalawati Devi was originally married to late Mathura Lal. She is a lady of very bad character and leads an immoral life so much so that soon after the death of Mathura Lal, she re-married with Baleshwar Lal first Party No. 1' is totally false and defamatory and the appellant had knowingly and deliberately made this statement and as a result of this statement the respondent had suffered mental pain and injury. Hence, I agree with the finding of the learned Munsif regarding it, and decide this point in favour of the respondent.
5. However, the learned appellate Court dismissed the suit on the ground that the suit was not maintainable as the alleged defamatory statement relates to judicial proceeding which is absolutely privileged.
6. On the question of defining the limits to the doctrine of absolute privilege as regards statements made by a witness on oath in judicial proceedings, it is important to note the statement to be privileges must be made in accordance and with reference to judicial proceedings. If the offending statement has no connection with the proceedings and is made 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 forms 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.
7. The appellate Court in the instant case has found that the appellant has substantiated by overwhelming evidence that she was defamed by the respondent. It was found that the defendant had brought unfound and nasty allegation against the appellant in the show cause filed in the proceeding under Section 144, Cr.P.C. and thereby reputation of the plaintiff was lowered down. Several witnesses stated that the appellant was a respectable lady of good character. They denied that the appellant remarried after the death of her husband. The appellate Court, however,, non-suited the appellant on the ground that in the proceeding under Section 144, Cr.P.C. the statement of show cause was absolutely privileged.
8. In Dawan Singh v. Mahip Singh ILR 1988 (X) Allahabad Series 425, Mahmood, J. held that the facts which might sustain a peal of privilege have not been ascertained by judicial trial in that case, nor has the question of bonafide been made the subject of inquiry. Learned Judge further held 'It is perfectly true, as admitted in this case, that the abusive language was employed in an answer to a question put by the Munsif. But, it is equally true that the question was not needed, and it would be extending the doctrine of privilege far beyond its bounds, even as known to the English Law, to hold that the mere incident of such a question being put by the Court is to afford the person to whom such question is put an unbounded privilege of abusing another in open Court, without a proper ascertainment by trial of the facts which might furnish a legal basis for such privilege, a trial which we as a Court of second appeal can scarcely hold ourselves.
9. In the present, case, the defendant without rhyme or reason or justification brought false and malicious allegation against the appellant, who was a respectable lady. The allegation was not at all relevant during the inquiry under Section 144, Cr.P.C. There is no doubt divergence of views in the High Courts on the question of absolute privilege. None of the cases have dealt with the similar situation as in the present case. Here a defamatory statement was made by a party in a criminal proceeding. In the facts and circumstances of the case, the plea of absolute privilege cannot be successfully raised. I, therefore, hold that the appellate Court erred in holding that the damages could not be awarded to the plaintiff as the defamatory statement was absolutely privileged.
10. In the result, this appeal is allowed and the decree of the appellate Court is set aside. The Trial Court has awarded Rs. 800/- as damages to the appellant but in the facts and circumstances of the case, the appellant is awarded damage of Rs. 250/- only to be paid by the respondent-defendant.
11. This appeal is allowed with cost.