UNIVERSITY OF

PETROLEUM & ENERGY STUDIES

B.A. - LL.B. (HONS.)

SEMESTER IV

ACADEMIC YEAR: 2020-21 SESSION: JAN-MAY 2021

PROJECT

FOR

LAW OF EVIDENCE

SUBMITTED TO: MR. UDIT RAJ SHARMA

SUBMITTED BY: DEVESH PRATAP SINGH

SAP ID: 500077115

ROLL NO.: R450214215

ANKIT GUPTA
SAP ID: 500077346
Roll No.: R4502192098

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 Table of Contents
Facts of the Case....................................................................................................................................5
Issue of the Case....................................................................................................................................8
Judgement.............................................................................................................................................9

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 PREFACE

We feel great pleasure in presenting this analysis on the case - Bai Shanta vs
Umrao Amir Malek AIR 1926 Bom 141. I hope that the readers will find this
analysis interesting and that the analysis in its present form shall be well
received by all. The analysis contains the detailed facts, issues and the
judgement given by the Bombay High Court on 5th October 1925.

Every effort is made to keep the analysis error free. We would gratefully
acknowledge the suggestions to improve the analysis so as to make it more
useful.

DEVESH PRATAP SINGH ANKIT GUPTA

University of Petroleum and Energy Studies

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 ACKNOWLEDGMENTS

On successful completion of this project, we would like to thank you Mr Udit

We would like to convey our gratitude towards our friends and batch mates who
have rendered us their valuable time and without their help this project would
have not been in its present shape and form. No work is complete with solo
endeavour, neither is ours. We would like to thank each and every non-teaching
staff of UPES for their unconditional support and coaction. We would also like
to convey our thanks to the Library Staff of UPES.

We are also beholden to Almighty, who has given us enough strength and
blessings to work hard and make it to best of our ability. Last but not the least:
We would also like to thank our parents who have given us the chance to study
in this esteemed University a sanctum for legal andragogy.

University of Petroleum and Energy Studies

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 Facts of the Case

Bai Shanta, a married Brahmin woman from Umreth, filed a complaint in the
Court of the Second-Class Magistrate, Thasra, alleging that Umrao Amir
assaulted her with the intent to offend her modesty under Section 354, Indian
Penal Code. When questioned by the Magistrate under Section 342, Criminal
Procedure Code, the accused Umrao gave a written statement alleging that he
had a connection with Bai Shanta, i.e., immoral connections, for about a year
and a half.

He quoted witnesses who testified in court that this statement was true. The
Magistrate disbelieved the defense and found Umrao guilty, ordering him to pay
a Rs. 151 fine. Bai Shanta then filed a complaint in the Court of the Resident
First Class Magistrate, Nadiad, alleging defamation and criminal intimidation
against Umrao, referred to as the Opponent No. 1, his four witnesses in the
previous criminal case, referred to as the Opponents Nos. 2, 3, 5 and 6, and
Opponent No. 4, a neighbour of Umrao, under Sections 500 and 506 of the
Indian Penal Code. She asseverated that while the case was pending, they
threatened to file a charge against her that would seriously harm her reputation
unless she removed the complaint, and that when she refused, they devised a
scheme to defame her in the manner described. She said that her image had
been severely damaged, that people mocked her, and that she believed that her
husband would not restore marital relations with her until she was rehabilitated
by defamation proceedings against the accused.

After serving notice on the defendants about the charge under Section 500 of
the Indian Penal Code, the First-Class Magistrate dismissed her complaint under
Section 203 of the Criminal Procedure Code, ruling that Umrao was covered by
Exception 9 to Section 499 of the Indian Penal Code (Imputation made in good
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faith by person for protection of his or another's interests), and the witnesses had
made relevant statements.

On appeal, the Additional Sessions Judge declined to overturn the Magistrate's

Bai Shanta then petitioned the Bombay High Court, requesting that the
Magistrate's dismissal order be overturned in relation to the charge under
Section 500 of the Indian Penal Code. Except for Opponent 2, who was not
served, the Court heard both of the parties. The petitioner had decided to
exclude her from the case, and her name was taken out as a result. No. 4 was not
accused of making any defamatory statements before the Second-Class
Magistrate, Thasra, of the remaining five opponents. As a result, the court was
only interested in Opponents Nos. 1, 3, 5, and 6. The depositions of the other
three opponents, as well as the oral and written comments of Opponent No. 1
Umrao, were translated. The court cited Dinshaji Edalji v. Jehangir A.I.R. 1922
Bom. 3811 and Haidar Ali v. Abru Mia [1905] 32 Cal. 756,2 saying that Umrao's
argument was clearly important for the purposes of his defense and was not an
inappropriate and uncalled for assault on the individual defamed. The other
three made clear claims in support of Umrao's claim against the petitioner.

As a result, the question arose as to whether the court should follow the view
that a party or witness was absolutely protected from prosecution for
defamation, apart from the provisions of the Indian Penal Code on the subject,

https://indiankanoon.org/doc/1348006/

https://www.casemine.com/judgement/in/56e0f283607dba38965fcd79

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as held by the two lower Courts, or the view that the Code's provisions must
have been followed and the Court cannot engraft exceptions derived from the
Common Law of English.

The Court stated that the accused 1st could not be punished for providing false
proof in respect of his answers to the Court under Section 342(2) and (4),
indicating that the claim centered on the responsibility of a complainant or
witness to the referred penalty did not apply in this case. The Court had
previously left open the issue of whether a party to a legal action is liable to
criminal prosecution for defamation in a previous case3. Apart from the
immunity offered by the exceptions to Section 499 of the Indian Penal Code, the
Bombay High Court did not address the issue of absolute privilege in Emperor
v. Esufalli Abdul Hussein [1918]4. The Court also brought up the fact that the
Bombay High Court had not issued a direct ruling on the matter in its decision.

Nathji Muleshver v. Lalbhai Ravidat [1889] 14 Bom. 97

https://www.legalindia.com/judgments/emperor-vs-esufalli-abdul-hussein-on-7-march-1918

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 Issue of the Case

(1) whether in any case the proviso to Section 132, of the Indian Evidence
Act does not protect Opponents Nos. 2, 5 and 6 from prosecution under
Section 500, Indian Penal Code? Section 132 in The Indian Evidence
Act, 1872?
(2) Whether pertinent statements made by a witness on oath or solemn
affirmation in a judicial proceeding are undeniably protected from being
made the subject of a prosecution for defamation under Section 500 of
the Indian Penal Code on grounds of public policy or exclusions derived
from the Common Law of England, apart from the provisions of Section
499 of the Indian Penal Code?
(3) If such claims are covered by the proviso to Section 132 of the Indian
Evidence Act5 in cases where the witness has not objected to answering
the question and has been ordered by the Court to answer it despite his
objection?
(4) Are valid statements made by an accused person under Section 342,
Criminal Procedure Code, or included in a written statement filed by him
with the Court's permission completely immune from defamation
prosecution under Section 500 of the Indian Penal Code, on the grounds,
etc., mentioned in question (1)?

Judgement

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 1. Section 132 of Indian Evidence Act. 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:
(Proviso) —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. Enactment only protects are
answer to a question which a witness is "compelled" to give.
The bench cited that the Allahabad High Court had held in Emperor v.
Chatur Singh [1920]6 that a response given under oath by a witness in a
criminal case to a question put to him by the Court or by counsel on
either side, particularly when the question is on a point important to the
case, is protected, whether or not the witness has objected to the question.
Another Allahabad High Court bench, led by Justice Walsh, took a
similar stance in Emperor v. Ganga Sahai [1920]7. On the other hand, the
concerned courts held in Queen v. Gopal Doss [1881], Queen-Empress v.
Moss [1893], and Kallu v. Sital [1918]8 that the witness would prove that
he pleaded to be excused from answering the query and the Court obliged
him to answer it to get the defense afforded by Section 132 of the Indian

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https://indiankanoon.org/doc/1268139/

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 Evidence Act. In Queen-Empress v. Ganu Sonba [1888]9, a majority of
the Bombay High Court agreed, as did a two-judge bench in Emperor v.
Gunna10.
The three-judge bench headed by Justice Fawcett, held this issue in
negative.

2. In retort to the second issue, the court cited the case of Satish Chandra
Chakravarti v. Ram Dayal De [1920]11, in which a Calcutta High Court
bench held that a defamatory remark made under oath or otherwise by a
respondent to a judicial trial is not fully covered under Section 499 of the
Indian Penal Code. The rules of such Code must be upheld under Clause
30 of the Letters Patent, 186512 and the Court cannot engraft on it,
exceptions arising from English Common Law or reliant on public policy.
The Court also held that the same High Court's decision in Queen-
Empress v. Babaji [1892] was incorrect, and that Justice Kashinath
Trimbak Telang's dissenting opinion should have been taken into account
when making the decision in Queen-Empress v. Balkrishna Vithal
[1893]13.
9

https://indiankanoon.org/doc/1500940/

10

https://www.casemine.com/judgement/in/56b4928a607dba348f000eee

11

https://indiankanoon.org/doc/592091/

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https://www.mondaq.com/india/patent/783120/clause-xii-of-letters-patent-and-original-jurisdiction-of-the-
high-court-established-under-letters-patent

13

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type=title&sort_by=1&order=ASC&rpp=20&etal=-1&null=&starts_with=Q

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 Held- Negative.

3. Referring to the 3rd Issue, the Court held the words "and been obliged by
the Court in spite of his objection to answer it" may have been inserted
inadvertently at the end of the question, since the question posed for the
bench's opinion could have been whether relevant statements made by a
witness under oath or solemn affirmation in a judicial proceeding may be
held to be protected by the proviso to Section 132 of the Indian Evidence
Act. In Emperor v. Cunna, the Bombay High Court had already held that
unless a person objected to any question the answer to which was likely
to criminate him, he cannot be said to have been compelled to give such
answer within the meaning of the proviso14.
The court cited Justice Hayward’s statement from Page 1271 of Emperor
v. Cunna in which he had held “If a man voluntarily makes an
incriminating statement, he must take the consequences for it. He can
only plead protection if he has specifically declined to make the
statement, and has been specifically compelled to do so by the Court.”
Held- Negative.

4. The Court also held the 4th issue in negative stating that the decision
given by Chief Justice Norman Cranstoun MacLeod on the 2nd issue had
already answered the question of the concerned issue. The Court held that
there is nothing in Section 342 of the Criminal Procedure Code which
gave an accused person an absolute privilege as regards defamatory
statements made by him in his inspection.

14

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Held- Negative

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