ORDER
J.N. Bhat, J.
1. This is a reference dated 10.5.65 made by the Sessions Judge Srinagar with the recommendation that the criminal complaint lodged by the respondent against the petitioners be quashed.
2. The facts that have given rise to this reference are as under. A civil suit for Rs. 19,900 was brought by Sewindra Singh Sethi manager and attorney of Bhagat Singh Sethi and Takht Singh Sethi, proprietors of Messrs Punjab Timber Traders, against the respondent in the court of the District Judge Srinagar on 30.12.64. Along with this suit Sewindra Singh put in an application supported by an affidavit for attachment before judgment and issue of a temporary injunction against the respondent. The District Judge was prima facie satisfied with the allegations in the application and the affidavit of S.S. Sethi and thereupon issued an attachment before judgment and a temporary injunction against the respondent. In pursuance of this order of the District Judge attachment was effected. It appears from the record that the defendant respondent did not file any objections against this application and the affidavit of the attorney S.S. Sethi but on 2nd January 1965 he put in an application before the District Judge to the effect that the Nazir of the court did not accept his security but effected attachment which had caused him a great loss. An appeal was preferred against this order of attachment before a Division Bench of this Court and, after undergoing various processes, the order of attachment was upheld.
It is stated that the DB ordered that security be furnished by the respondent Zind Lal for the suit amount and costs. Feeling aggrieved with some of the contents of the application for attachment before judgment and temporary injunction the respondent filed a complaint under Section 500 R.P.C. against all the three persons, i.e., Bhagat Singh and Takht Singh proprietors of Punjab Timber Traders and Sewinder Singh Sethi, the manager and attorney who had actually brought the suit and put in an affidavit for attachment before judgment, on 2.1.65. This complaint was accompanied by a certified copy of the application for attachment before judgment and the affidavit sworn by S.S. Sethi in support of that application. The complaint was transferred to the court of the Sub-Registrar Magistrate first class who recorded the statement of the complainant and issued warrants of arrest against all the three accused, fixing 16.2.65 as the date in the complaint. Against this order of summoning the accused the petitioners went in revision before the learned Sessions Judge who has made the recommendation as stated above for quashing of the complaint.
3. The learned Sessions Judge has written a very detailed order. Before me also the case was argued by the learned Counsel for the parties. The learned Sessions Judge has remarked that the two accused, Bhagat Singh and Takht Singh reside in Bombay. They have of instituted the suit nor put in the application for attachment before judgment and injunction. The affidavit also is not sworn by either we them. It is only to harass the petitioners and coerce them into a compromise in the civil suit that these two accused have been imp leaded in the complaint. According to the learned Sessions Judge these people cannot by any stretch of imagination be considered to be responsible for the so-called defamation caused to the respondent. It was conceded before me that the suit or the application for attachment before judgment and temporary injunction or, for that matter, the affidavit in support thereof was not subscribed to by these two accused. They are resident of and carry on business in Bombay. But according to the learned Counsel appearing for Zind Lal there is an allegation in para (7) of the complaint that the entire proceedings of instituting the civil suit and obtaining the attachment before judgment and the applications connected therewith have been done by the joint consultation of all the accused and. therefore, these two accused are also responsible for the defamation caused to the respondent.
4. When I jointly with the learned Counsel for the parties perused the statement made by Zind Lal before the issue of process, I did not find any such thing of conspiracy or joint consultation amongst all the accused in launching these proceedings against the respondent. A mere allegation in the complaint without its being supported even by the complainant, much less any evidence being produced in support of the complaint, will not make these two accused liable for criminal prosecution for the acts of the third accused, S.S. Sethi their manager and attorney. It has been remarked times out of number by me and the other learned Judges of this Court that Magistrates should apply their mind to the facts of a case before issuing process in a criminal case. In this case-the certified copies of the application and the affidavit presented by S.S. Sethi were filed along with the complaint. The statement of the complainant has been recorded by some court clerk. If the learned Magistrate had simply perused the allegations in the complaint and the certified copies of the application for attachment before judgment and the affidavit and the statement of the complainant, I am sure he would not have issued any process at least against these two accused.
The trouble, so far as these two petitioners are concerned, has been caused by the carelessness of the Magistrate. Their residence and address is shown to be in Bandra, Bombay. Anyway, this being the entire material against these two accused, this one line in para (7) of the complaint is not sufficient to hold them liable for any defamation which the respondent thinks has been caused to him by the averments in the application and the affidavit. Therefore there was not and is not the least justification for the continuance of the criminal case of defamation against these two accused.
5. Then remains the case of the third accused S.S. Sethi. In the complaint objection' has been taken to the following contents of paras (4), (6) and (7) of the application for attachment before judgment, the temporary, injunction and the affidavit. The complaint contains a gist of these allegations in Urdu. It is bolter if those paras of the application are reproduced verbatim:
Para 4: The defendant has deliberately and dishonestly refused to deliver the plaintiff timber in spite of the huge amounts taken by him as advance for the same.
Para 6: The defendant has disposed of huge quantities of timber and is disposing of the rest also. Further he has dishonestly to defraud the plaintiffs and other creditors kept certain items of his property in the name of his other members of the family though they actually belong to him and are paid for and purchased by him.
Para 7: That the defendant is in hot haste to dispose of the whole stocks of timber in log and sawn form outturn of compartment No. Section 23 Sri Pratap Singh Pora Range Pir Panjal Dn. South Circle, lying at his saw mill (Shakti Saw Mills Parimpora) and the very small quantity now left in or outside the forest, alongwith the saw mill at Parimpora in order to defraud his creditors and thus deprive us of the fruits of the decree that is likely to be passed in this case.
6. It is significant to remark that the respondent Zind Lal has not factually challenged these contents in his complaint or in his-statement specifically. It is also very important to state here that in the application for attachment before judgment he did not put in his objections controverting the facts alleged against him. All that he did was that on 2nd January, 65 he put in an application before the District Judge that the Nazir had not accepted security from him but had effected attachment. The learned Judge remarked thereon that the order of security was already there. This matter went up before the High Court also. These factual allegations were not denied by the respondent. At any rule the Division Bench of the High Court upheld the order of attachment. It is necessary for an order of attachment before judgment that the court must be satisfied on an affidavit or otherwise that the defendant with intent to obstruct or delay the execution of a decree that may be passed against him is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the court. Unless these conditions are satisfied an attachment before judgment cannot be ordered.
Similarly to obtain an order of temporary injunction the court has to be satisfied by an affidavit or otherwise that any property in dispute in a suit is in danger of being wasted away or alienated by any party or that the defendant threatens or intends to remove or dispose of any property with a view to defraud his creditors. So on and so forth. The presumption is that the court was satisfied about these conditions preceding the issue of an order of attachment before judgment or temporary injunction. The court of first instance therefore passed these orders; in appeal these orders were confirmed. The legal conclusion is that these matters which warranted the issue of an attachment before judgment or a temporary injunction did exist. This matter is therefore concluded and cannot be reopened. These things having been established from judicial record, I am afraid the complaint of the complainant cannot be permitted to continue even against S.S. Sethi accused. That would be sufficient to dispose of the reference made by the learned Sessions Judge.
7. But let me examine the contents of paras 4, 6 and 7 of the application and the affidavit of S.S. Sethi on their own merits. I am afraid even on a reading of these paras and interpreting them properly and thoroughly no case of defamation as defined in Section 499 of the RPC is made out. This accused has stated that the defendant has deliberately and dishonestly refused to deliver the stipulated timber; that the defendant has disposed of huge quantities of timber and is disposing of the rest of it He has dishonestly defrauded his creditors amongst whom the plaintiff is one, kept certain items of his property in the name of the members of his family though the property actually belongs to him. That the defendant has disposed of the whole stocks of timber in log and sawn from out turn of compartment No. Section 23 and that there is a very small quantity now left in or outside the forest. This the defendant did with intent to defraud his creditors and deprive the plaintiffs of the fruits of the decree that is likely to be passed in this case. These are exactly the requirements which would justify the procurement of an order of attachment before judgment and temporary-injunction. It is very well known that pleadings in this country are very loosely worded. Courts of law should try to analyze and understand the true purport of the pleadings no matter what language has been used.
8. In this case all that the petitioner S.S. Sethi has stated in his application and affidavit is that the defendant had not fulfilled the terms of his contract; he had disposed of some portion of his property and had kept some in the name of his relatives to defraud his creditors. This by itself would not constitute defamation if understood in its true perspective. (I am not here emphasizing ore the factual side of the case that these averments have not been denied by the respondent either in the complaint or in his statement before the Magistrate. I am assuming them to be made and possibly being incorrect also). We are taking these allegations as they occur in the application or as it is said at their face value. The case of S.S. Sethi is covered by exception 9 to Section 499 of the RPC which reads as under:
It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public-good.
This principle is contained in the doctrine of privilege in law. In England statements made by witnesses or parties in the course of judicial proceedings whether they are in the form of pleadings or sworn testimonies are absolutely privileged and no action can lie against a party or a witness for any allegation made by him or in the course of a statement or in a pleading. But the doctrine of absolute privilege about such matters has been held not to be applicable in India, where defamation is the subject matter of a specific provision of the Penal Code. That absolute privilege cannot be enjoyed by litigants or witnesses in India as is done in England, reference may be made to ILR 49 Mad 728 : AIR 1926 Mad 906(FB) and (1913) ILR 40 Cal 433. In the former case their Lordships overruled an earlier Full Bench decision of the same Court (1913) ILR 36 Mad 216 and held that according to exception 8 to Section 499 IPC defamatory statements in complaints to Magistrates are not absolutely privileged Unless they are made in good faith, the complainant is guilty of defamation. They have further held that on matters specifically dealt with by the Penal Code such as this, the English common law does not apply.
9. In (1913) ILR 40 Cal 433 (Supra) it has been held that the English common law doctrine of absolute privilege does not obtain in the moffussil in India, and a defamatory statement made in bad faith by an accused, against whom a trial is pending in a criminal court, is not absolutely privileged, but is punishable under Section 499 of the I.P.C.
10. Absolute privilege not being applicable to cases under the Penal Code in India, we come to what is termed legally as 'qualified privilege'. In India the authorities lay down that if in a pleading of a party certain matters are alleged which may not strictly be correct but are made in good faith and are made to protect the interests of the maker, they are privileged and the person making them cannot be prosecuted or convicted for defamation. Only few authorities may be mentioned in this Lehalf.
11. In (1900) ILR 22 All 234 in an application for the transfer of a criminal case the applicants alleged, with some apparent reason, that the case had been falsely got up against them by the complainant at the instigation of one Umrao Singh in order to prejudice them in their defence in a civil suit which Umrao Singh had caused to be brought against them. It was held that the statement did not amount to defamation, not because of the application of any principles of English Law for such principles did not apply to prosecutions for defamations under the I.P.C. but because the statement fell within the ninth exception to Section 499 of the I.P.C. A whole host of authorities has been discussed in this judgment.
12. Here also the petitioners allege and it has been so held by the learned Sessions Judge, that this criminal complaint has been lodged against the petitioners simply to coerce them into a compromise in the civil suit brought against the respondent.
13. In (1876) ILR 2 Mad 13 the plaintiffs and the defendants were the members of two firms, each creditors of an absconded debtor one B. The plaintiffs' firm brought a suit to recover the sum alleged to be due to them by the said B, and pending that suit the defendant's firm presented a petition to the court which contained the statement complained of, which was to the effect that the plaintiffs had prejudiced the petitioners by suing the said B for sums greatly in excess of their just claims against him.
14. It was held that as the defendants were creditors of an absconded debtor and deeply interested in seeing that his estate was not swept of in satisfaction of an excessive claim made by the earliest suitor, they, in presenting a petition pointing out what they considered suspicious elements in the plaintiffs' claim against such debtor, were at all events entitled to the qualified privilege of persons acting in good faith and making communications with a fair and reasonable purpose of protecting their own interest.
15. Here also the petitioner Swindra Singh has made the impugned allegation in good faith and with a view to protect the interests of the plaintiffs.
16. In AIR 1918 Nag 221(1) it has been laid down that a statement made by a party to a suit in good faith and for the protection of his interests, and which is relevant to the matter in issue, falls under Exception 9, Section 499 of the Penal Code and is privileged. In order to take such a statement out of the exception, express malice must be proved.
17. In AIR 1925 Mad 246 it has been laid down that exception 9 applied to a case where a lawyer's notice was sent on behalf of the widow of a deceased Hindu in which the accused was charged with criminal breach of trust and theft of the properties of the deceased and he was threatened with civil and criminal proceedings and the accused sent in his reply through a vakil alleging that the widow was living an adulterous life and that she was discarded owing to her such conduct by her husband and that her daughter was not the daughter of the husband and that she had never lived with the deceased for about 25 years and the accused, who was the deceased's nephew, claimed under a will by the deceased.
18. In AIR 1948 Mad 469 it was held that to secure the protection of exception 9 to Section 499 for allegations made in a written statement, it is necessary that the imputation should have been made in good faith and for the protection of the interest of the person making it or of any other person or for the public good. In this case Rajamannar J. further held that there cannot be any rule of thumb to determine in a particular case whether an imputation is made in good faith or not. Good faith is relative to a great extent and must be determined by the circumstances under which the imputation was made, the social status and the level of education of the person making the imputation and his reasoning capacity. That the allegations contained in the statements made by the petitioners are not established to be true is not tantamount to absence of good faith.
19. In AIR 1937 Rang 535 a lawyer on behalf of his client asked the witness of the other party whether his daughter had given birth to a child without marriage. The question was asked by the lawyer under the instructions of his client and with a belief that such question was permissible under Section 146(1) Evidence Act. The lawyer and his client were prosecuted under Section 500, Penal Code. It was not shown that the client made this imputation to any person other than the lawyer or that they made the imputation not in good faith. On these facts it was held that the accused persons could not, under the circumstances, be convicted under Section 500 and they were entitled to the benefit of Excep. 9 to Section 499 in the publication made by them of the defamation to their lawyer.
20. In this case I have proceeded to determine whether the accused S.S. Sethi was privileged to have made the statement in the application for attachment before judgment and the temporary injunction and the affidavit. I am convinced that further proceedings even against S.S. Sethi are useless. There will be no purpose in postponing the consideration of the complaint till the disposal of the final suit, as was argued by the learned Counsel for the respondent. The suit as such has nothing to do with the application for attachment before judgment. It is a separate proceeding and the allegations are made only in the application and the affidavit. Those proceedings are concluded by the order of the Division Bench of this Court. Further, as I have tried to show these allegations were made in good faith to protect the interests of the petitioner in the suit. No express malice has been pleaded or alleged in the complaint or the statement of the complainant before the trial Magistrate.
21. In view of all these facts I feel that the recommendation of the learned Sessions Judge for quashing the entire proceedings is justified and consequently the reference is accepted, and the criminal proceedings pending against all the three accused before the Sub-Registrar Srinagar are hereby quashed.