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TMI Blog2013 (7) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... tion with a press communique dated 4th November 1996 issued by the Ministry of Railways. When the suit was transferred to the Court of the learned Additional District Judge ('ADJ') on account of revision of pecuniary jurisdiction, it was re-numbered as CS No. 83 of 2009. The said suit was dismissed on 26th July 2010 on the ground of limitation. A copy of the said judgment has been placed on record. The Plaintiff states that he has filed an appeal being RFA No. 757 of 2010 against the said judgment which is pending. 3. Para 13 of the judgment dated 26th July 2010 shows that on behalf of the Defendants in CS No. 83 of 2009 Mr. Sunil Kumar, the Defendant herein, was examined as the sole witness DW 1. The present suit concerns the deposition of the Defendant in the said suit. According to the Plaintiff the answers given by the Defendant during the aforementioned deposition were totally false, not supported by any material on record or by any documentary proof and that the statements were disparaging to the image and reputation of the Plaintiff and as result is also causing immense mental agony and mental harassment to the Plaintiff. In particular, the Plaintiff refers to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 4th November 1996 issued by the Railway Ministry to the effect that the Plaintiff was not found guilty of charges of sexual harassment or misbehavior . As already noted, the said suit was dismissed on the ground of limitation. No other issue was decided. So there was no occasion for the Court to rely on the statement made by the Defendant herein in his cross examination. 5. In the present suit summons were directed to issue on 3rd October 2011. The case of the Plaintiff is that although the aforementioned statements were made by the Plaintiff on 9th and 23rd August 2005, a fresh cause of action arose when the trial court pronounced the judgment on 26th July 2010 when it dictated the judgment including the above portion of the statements made on oath by the Defendant and that he did not withdraw his false statements even at that stage. The present suit was filed on 19th May 2011. 6. In the present application by the Defendant under Order VII Rule 11 CPC, notice was directed to be issued on 9th January 2012. Meanwhile, written statement was also filed. The delay in filing the written statement was condoned on 7th September 2010. 7. Learned counsel for the Defendant re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atements, without being compelled to do so, and those statements are defamatory of the Plaintiff, they were not protected by the doctrine of absolute privilege. 9. The Court begins by referring to Section 132 of the Evidence Act which reads as under Witness not excused from answering on ground that answer will criminate.- A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind: Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer. 10. The above provision is essentially concerned with the possible hesitation a witness may have in answering a question, either in civil or criminal proceedings, fearing that he may either incriminate himself or expose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of defending actions. 13. After noticing the above judgment, the Kerala High Court in K. Daniel proceeded to observe that the common law rule of absolute privilege in civil action for slander in regard to statements made in the course of judicial proceedings has been followed by Courts in India. 14. In Kamalini Manmade v. Union of India: (1967) Bom LR 512 the Bombay High Court was dealing with a case where the plaintiff filed a suit for damages against the defendants, who were the advocates of one of the parties in a prior suit in which the plaintiff was involved, on the ground that certain allegedly defamatory statements were made by the defendants, against the plaintiff, during the suit proceedings. The Court emphasised the distinction between criminal prosecution and civil actions for defamation with regard to the applicability of the English common law rule of absolute privilege. The Court observed that although Sections 499 and 500 IPC constituted an exception to the English common law rule in relation to criminal prosecutions for defamation, the rule of absolute privilege with regards to civil actions for defamation was not affected by the above provisions of the IPC. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. In Halls v. Simmons [2001] 1 AC 615, the House of Lords, while doing away with the immunity enjoyed by advocates in cases of liability of negligence, in and outside the court, refused to take away their absolute privilege from claims of defamation. A similar proposition was followed later in Medcalf v Mardell [2002] UKHL 27, [2003] 1 AC 120. 19. Each of the decisions cited by the Plaintiff pertains to application of the doctrine of absolute privilege in criminal proceedings. The facts and circumstances in Hemraj Poonamchand v. Babulal Bhagirath: AIR 1962 MP 41 were that the appellant filed a complaint in the Court of the Judicial Magistrate under Section 500 IPC against Babulal stating that while deposing in a civil suit filed by one Pannalal (who was the nephew of Hemraj) against Babulal, a statement was made by Babulal during his deposition that Hemraj was at Barnagar but has come away after becoming insolvent there . The Magistrate acquitted Babulal holding that he might have thought that he was bound to answer the question. The High Court examined whether (1) the witness enjoyed absolute protection from prosecution for statements made in the box (2) the circumstances i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the context was whether the Defendant knew if there were any other resolutions concerning any complaint by any lady officer. Even as regards the answer given by the witness in cross-examination on 23rd August 2005, the context was whether there was any complaint or not against the Plaintiff during these 30 years of service about causing any sexual harassment to any lady official... This Court is, therefore, unable to conclude that these statements were wholly irrelevant to the subject matter of the suit. It was made by the Defendant in his capacity as a sole witness for the Ministry of Railways. Nowhere did the Defendant hold out that he had any personal knowledge of these matters. Consequently, the Court fails to appreciate how answers given during the course of cross-examination in a civil suit can become subject matter of subsequent defamation proceedings when those statements have actually not been relied upon to decide the case. 23. Thirdly, in rendering the decision on 26th July 2010 dismissing the Plaintiffs earlier suit, the judicial officer was performing his official duty. There is nothing to show that the Defendant was present in Court when the judgment was pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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