ORDER Shacheendra Dwivedi, J. -- 1. This revision challenges the correctness of the order of conviction under section 500 I.P.C. and sentence of fine thereunder of Rs. 1,000/- or in default of payment, S.I. for three months, confirmed in appeal, which was preferred against the order of the J.M.F.C., Vidisha. 2. The complainant Rajmal had brought a criminal action against the petitioner by filing a complaint in the Court of J.M.F.C. under section 500 I.P.C. on the allegation that he was addressed a 'Murti Chor' (idol thief) by the petitioner, in his statement recorded by police during investigation of a criminal case which was initiated on the petitioner's report. 3. The two Courts below have convicted the petitioner solely on the ground of his police statement (Ex. P-2), proved by PW 4 Arun Khemaria, Sub-Inspector of Police. It is contended by the petitioner that under the law the alleged police statement of the petitioner could not be made the basis of an action/conviction and, therefore, the orders of the two Courts below deserve to be set aside. 4. The revision poses some vital problems of legal character concerning the nature of privilege an the admissibility of the statement recorded by police of a witness during investigation of a criminal case. 5. It was alleged by the complainant that against him a report/application was lodged by the petitioner with the police making imputations on his character and conduct. During investigation he had stated to sub-inspector police that the complainant was an idol thief. Since the complainant did not file nor he brought on record the alleged report, the two Courts below, therefore, proceeded only on the strength of the police statement (Ex. P. 2), which was filed by the police in the Court of the S.D.M. in a case against the complainant under section 107 Cr.P.C. 6. Now, firstly it is to be examined whether the petitioner can claim absolute privilege as contended, for his statement recorded by polite in his capacity as a witness under section 161 Cr.P.C. 7. The immunity or the extent of protection of privilege to be accorded to the witnesses and litigants for their statements made in the course of judicial proceedings has been a subject-matter of divergent opinions. The immunity or the extent of protection of privilege to be accorded to the witnesses and litigants for their statements made in the course of judicial proceedings has been a subject-matter of divergent opinions. One view is based on English rule and favours the protection to the extent of absolute privilege, whereas in the other view the situations are different for civil and criminal actions. In respect to the civil liability for defamation and the payment of damages, there are no specific provisions, in our country but the criminal liability is codified, as appearing in section 499 of I.P.C. 8. There being no codified law governing the civil liability relating to the tort of defamation, the principles of justice, equity and good conscience of common law of England are being applied. In England, the witnesses are absolutely privileged both against civil suits for damages and the criminal prosecution. In that country, it is clear, uniform and conclusive that no action of libel or slander lies against the witnesses or the parties for the words written and spoken in the ordinary course of any proceedings before any Court or Tribunal recognised by law. 9. The doctrine of absolute privilege is founded on the fact that it is not desirable nor in the public interest to examine whether the words or the acts of certain persons appearing in the course of judicial proceedings are malicious or not, as it concerns the public at large and the effective administration of justice. The witnesses giving their statements in inquiry or evidence on oath in a Court of Law should be free from the fear and be given to understand that their narration would not make them the subject of an action. It is thought necessary for taking out the truth from the witness. But at the same time the fact should not go unnoticed that the privilege is also likely to be misused with intent to malign a person. Therefore, the balancing of interest between the two is essential. This has culminated in the codification of Chapter XXI with the Exceptions in section 499 of the Indian Penal Code. In fact, the existing law relating to defamation is also a reasonable restriction on the fundamental right of freedom of speech and expression conferred by Article 19 (1) (a) of our Constitution and is saved by clause (2) of the Article. In fact, the existing law relating to defamation is also a reasonable restriction on the fundamental right of freedom of speech and expression conferred by Article 19 (1) (a) of our Constitution and is saved by clause (2) of the Article. A man's reputation is his property, more valuable than any other. It is a jus in rem, a right, good against all the world. This right has been protected by the provisions of section 499 of I.P.C. The legal aspect whether a witness should be immune for whatever he may state in an inquiry or trial, has been considered for over a century differently by different High Courts in the country, but in the initial years, their Lordships of Privy Council had an occasion of examining this aspect in the celebrated case of Baboo Gunnesh Singh v. Mugneeram Chowdhry (1872) 11 Beng L.R. 321 and it was found that though the witnesses cannot be sued in a civil Court for damages in respect of evidence given by them upon oath in judicial proceedings, yet they could be liable for perjury, on their statements being found to be false. While discussing the basis of this principle and the underlying public policy, it was held: "that it concerns the public and the administration of justice that witnesses giving their evidence on oath in a Court of justice should not have before their eyes the fear of being harassed by suits for damages, but that the only penalty which they should incur if they give evidence falsely should be an indictment for perjury." The public policy may be considered when there be no codified law, else is the concern of legislature. It does assume relevance for the Court only when it comes to the Courts' discretion, where it may declare any impugned 'action' to be void, being against the public policy if it was not authorised by law. The public policy certainly does not authorise a witness and make him free to make unwarranted defamatory statement about the other. If it is required that the witness be kept free to narrate the truth, it is not desired as well that he may make a statement howsoever defamatory it may be and claim the freedom, to be immune. The public policy certainly does not authorise a witness and make him free to make unwarranted defamatory statement about the other. If it is required that the witness be kept free to narrate the truth, it is not desired as well that he may make a statement howsoever defamatory it may be and claim the freedom, to be immune. Still section 499 I.P.C. with its exceptions and section 132 of Evidence Act, provide him some protection which is more than what a witness can deserve. 10. So here in the insk1nt case, the problem is not relating to the civil liability in respect of the tort defamation; though some High Courts have held that the witness gets the absolute privilege, for example Majju v. Lachman Prasad (AIR 1924 Allahabad 535), Madhab Chandra Ghose v. Nirad Chandra (AIR 1939 Cal. 477) but in the other view the privilege is not absolute. In the year 1937, Nagpur High Court had an occasion to deal with this aspect and it was observed that when a person alleges to be defamed, through a statement made in a suit or proceedings by a witness and files a complaint against such witness under section 499 I.P.C. the witness cannot claim absolute privilege. The Court in Chotelal Bhurelal Jain v. Phulchand Ramchand Jain (AIR 1937 Nag. 138) found that- "Now, it has been held in all the High Courts of India and I cite 48 Cal. 388, 52 Mad. 432 and 50 Bom. 162 as examples that a person giving evidence in a Court of law is not entitled to an absolute privilege in respect of the statements which he makes and, consequently, that he is not immune from a complaint of defamation by reason of words uttered on oath in the witness-box." 11. Under section 499 I.P.C. the absolute privilege which a witness enjoys under the English law has been reduced only to a qualified privilege. 12. But apart from the privilege, the material question as urged by the petitioner, is also of the admissibility and reliability of the statement recorded under section 161 Cr.P.C. In Civil and Criminal cases, there is no difference in the rules as to the admissibility of evidence, though there may be difference in their application. If evidence is inadmissible, even omission to take objection to its reception does not render it admissible. If evidence is inadmissible, even omission to take objection to its reception does not render it admissible. The Evidence Act casts a duty on the Court as well under sections 5, 60, 64, 136 and 165 of Evidence Act to compel the parties for the observance of the provisions of the Act. 13. Section 162 Cr.P.C. controls the use of Statements recorded under section 161 and provides that it can be used only to contradict the witness under section 145 of Evidence Act. The general provisions of Evidence Act as contained in section 145 are controlled by the special provisions of section 162 Cr.P.C. which is a subsequent and a special enactment. The statement recorded under section 161 Cr.P.C. prohibits the use in evidence of the statement k1ken under section 161 of a witness. 14. But then such prohibition would be effective only in any inquiry of trial in respect of the offence regarding which the investigation was made, wherein the statement came to be recorded. The advantage of prohibition would not be available in a subsequent inquiry or trial, not concerning the investigated offence. Therefore, in my view, the witness will have only the qualified privilege for his statement recorded by police under section 161 CLP.C. and it cannot also be urged that such a defamatory statement cannot be used or would not be admissible in evidence against the maker, in his prosecution under section 500 I.P.C. 15. Now adverting to the next and the last crucial question involved in the instant case, whether the complainant succeeded in proving the statement allegedly made to police, by the petitioner? The petitioner had denied to have made the alleged statement. The statement (Ex. P-2) was admittedly not tendered in evidence in the inquiry in which it is stated to have been filed before the Sub-Divisional Magistrate under section 107/116 Cr.P.C. There is no endorsement on it of its receipt on the record of the Court, neither any copy thereof was supplied to the complainant. The fate of inquiry is also not on record. The statement, therefore, remained unexhibited in the said inquiry and was not proved by any witness. It had remained simply as a paper in the file and is not a public document. The fate of inquiry is also not on record. The statement, therefore, remained unexhibited in the said inquiry and was not proved by any witness. It had remained simply as a paper in the file and is not a public document. The version of complainant himself, in this regard, in the Court is hearsay, as the alleged remarks by the petitioner about him were not made to him, but to his witness Arun Khemariya (PW 4). This witness PW 4 did not narrate in Court tilt statement or the alleged remarks made to him by petitioner about the complainant. Even the gist or the substance of alleged statement is not deposed by the witness. The certified copy of the alleged statement which is an unexhibited document, is not the substantive evidence. In the circumstances the substantive evidence would only be which the witness has deposed in the Court. The witness did not state as to what was the statement given to him by the petitioner. He simply stated that the statement given to him by the petitioner is in the file of the Magistrate, the copy of which is Ex. P-2. The police statement Ex. P-2 is not a substitute for the evidence. The contents of the statement Ex. P-2 are not self proving and cannot be read in evidence. The witness did not state that the statement was recorded by him in his own handwriting nor has proved his signature on Ex. P. 2. The witness has also not stated whether the alleged remark was made by the petitioner in answer to a question or was voluntary. As such, the contents of the document Ex. P-2 cannot be taken to be proved in the case. 16. P. 2. The witness has also not stated whether the alleged remark was made by the petitioner in answer to a question or was voluntary. As such, the contents of the document Ex. P-2 cannot be taken to be proved in the case. 16. Further more the certified copy of such a paper from the Court file also cannot be granted to a third person under the rule framed by the High Court in exercise of power conferred under sub-section (6) of section 363 of the Code of Criminal Procedure which reads thus : "Save as otherwise provided by the Law for the time being in force copy of a Judgment or order of a criminal Court may be granted to any person who is not affected by a Judgment or order on payment, by such person of the usual charges and subject to prescribed conditions, under orders of the Presiding Officer or the Officer Incharge of the record Room as the case may be: Provided that copies required for official use or purpose, by officers of the Central or State Government should be delivered free of cost." 17. In the stated circumstances, it has also not been proved that the alleged remarks, made to a person in authority investigating an offence, were intended to harm the reputation of the complainant, nor that the accused petitioner had such knowledge or reason to so believe. The statements of the other witnesses Babulal and Susheela Bai (PW 2 & 3) are absolutely irrelevant as they do not depose at all about the fact of making of the alleged statement Ex. P-2. The essence of the offence is the intention or knowledge to harm the reputation of the complainant and that necessarily requires either such making or the publicity to be given to the imputation, which is wholly missing in the instant case. 18. P-2. The essence of the offence is the intention or knowledge to harm the reputation of the complainant and that necessarily requires either such making or the publicity to be given to the imputation, which is wholly missing in the instant case. 18. On the foregoing discussion, though I have found that the petitioner could not claim the privilege for the alleged statement made to police under section 161 Cr.P.C. and also that such statement would not be hit by the provisions of section 162 Cr.P.C., and would be admissible in the other inquiry or trial, independent of the investigated offence, yet the prosecution having failed to prove the essential ingredients of the offence against the petitioner by any legal and substantive evidence, the order of his conviction and sentence cannot be maintained. 19. The revision, therefore, succeeds. The conviction and sentence of the petitioner is set aside. He is acquitted of the charge and his bail bonds are discharged.