Patna High Court
Bira Gareri vs Dulhin Somaria And Ors. on 22 December, 1961
Equivalent citations: AIR1962PAT229, AIR 1962 PATNA 229, ILR 41 PAT 816
Bench: V. Ramaswami, N.L. Untwalia
JUDGMENT Untwalia, J.
1. This is an appeal by the defendant under Clause 10 of the Letters Patent against the decision of a learned single Judge of this Court. It arises out of a suit filed by the plaintiffs respondents claiming damages for the alleged defamatory statements made by the appoint in Ext 3 a written information bearing the thumb impression of the appellant sent to the Police, it appears, with the object of taking action and instituting a case against the respondents.
2. One Mewa was a cousin of respondent No. 2. Mewa's wife suddenly died. It was suspected that her death was due to poisoning. The appellant informed one Sheopujan Ram, the scribe of the written information sent to the Police, that Mewa's wife had been poisoned by respondent No. 1 and she and her two sons, respondents 2 and 3, had become lapata (scares) after poisoning her (Mewa's wife), as a result of which she had died. The Police treated the written information as a first information and ins instituted a case under Section 302 of the Penal Code against the respondents.
The case, on investigation, was found to be false; a final report was submitted; action was taken against the appellant under Sections 182 and 211 of the Penal Code but the said proceedings were also ultimately dropped. The plaintiffs thereafter instituted the money suit claiming damages to the extent of Rs. 1000/- for defamation. The learned Munsif decreed the suit in part and awarded a sum of Rs. 150/- only by way of damages to plaintiff N0. 1 alone and did not grant any damages to respondents 2 and 3.
Two appeals were filed in the lower appellate Court one by the defendant and the other by the plaintiffs. The learned Subordinate Judge allowed the defendant's appeal and dismissed that of the plaintiffs. He took the view that the statement contained in the written information to the police was protected by the doctrine of absolute privilege and, therefore, the suit was dismissed even though the finding of the learned Munsif that the appellant's statement was take and was actuated by malice was not upset.
Two second appeals were filed in this Court--one each by either side and the learned single Judge bus disposed of the two appeals by allowing them in part, whereby he has set aside the decree of the lower appellate Court and restored that of the trial Court. Hence this appeal by the defendant. There is no appeal under Letter's Patent by the Plaintiffs.
3. Although Mr. Kailash Roy appearing in support of the appellant at one stage faintly argued that the statement made by the appellant in Ext. 3 was neither deliberately false nor was it actuated by malice and so, even if it is covered by the principle of qualified privilege no decree for damages could be passed, he ultimately did not pursue this matter feeling the difficulty on the findings of fact arrived at by the courts below. The only point which has been argued is as to whether the appellant enjoyed the protection of absolute privilege in respect of the defamatory statement made by him in the information sent to the Police.
4. It is well settled that in India the criminal liability for defamation is codified and embodied in Section 499 of the Penal Code and differs from the law in England in that regard. The Civil liability for defamation to pay damages, however, is not governed by any statute law but is determined with reference to the principles of justice, equity and good conscience, which generally have been imported in this country from the English principles. There seems to be little scops for an appreciable difference between the Indian and the English law on this subject In order, therefore to answer the question of law, I would briefly quote a few passages from some of the standard English text books. Thereafter I would refer to a few English and Indian decisions on the point.
5. Folkard in his book "The Law of Slander and Libel', 7th edition, has said at pages 88-89.
"As to defamatory statement and publications made in the regular course of proceedings in Courts of justice; by the general policy of the law, the occasion is such that it not only repels the presumption, of malice, but, as it appears, excludes all evidence of malice, and allows the occasion and circumstance? to supply an a solute and peremptory bar to an action or prosecution for slander or libel in respect of any such statements or publication. And the reason is founded on the principle, that, 'the law will rather suffer a private mischief than a public inconvenience:' and that persons engaged in the administration of the law, and those who seek justice in respect of wrongs or injuries suffered, or give evidence as to any such or make defence thereto, may not be deterred from so doing by the fear of being harassed by actions or prosecutions for defamation in resepct thereof.
X X X X It has, indeed, been held that whether (whatever?) is said, however, false or injurious to the character or interests of a complainant, by Judges upon the Bench, whether in the Superior Courts of law or equity, or in County Courts, or Sessions of the Peace, by counsel "at the bar in pleading causes, or by witnesses in giving evidence, or by members of the legislature in either House of Parliament, or by ministers of the Crown in advising the Sovereign, is absolutely privileged, and cannot be inquired into in an action at-law for defamation.'' The law of absolute privilege concerning the judicial proceedings is summed up under the heading Judicial privilege' at pages 348-349 of the 12th edition of the well-known book 'Salmond on Torts'. The following few lines need be quoted here:-
"This absolute privilege his been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist, and with the knowledge that courts of justice are presided over by those who from their high character are not likly to abuse the privilege, and who have the power and ought to have the will to check any abuse of it by those who appear before them. The privilege extends to all counts, superior and inferior, civil and military. ........... The privilege extends not merely to Judges but witnesses, parties, and advocates. It includes not merely statements made by a witness in court but also statements made by him to a party, or to the party's solicitor, in the course of preparation for trial."
The principle and extent of absolute privilege relating to Judicial proceedings is lucidly stated at pages 765-768 of the 11th edition of 'Clerk and Lindsell on Torts' thus--
"It is impossible that litigation and public business, can be carded on without the character of individuals being constantly called in question. If everyone thus impeached were permitted to pursue his legal remedy, not merely would freedom of communication in matters where it is vitally necessary be rendered impossible, but a perennial source of litigation would be opened. Accordingly, on occasions absolutely privileged not merely are those protected who act in the honest discharge of their legal right or duty, but also those who abuse the opportunity with malacious motive and deliberate untruthfulness to malign their neighbours; and this because it, is impossible to devise a shield sufficiently broad to cover the former without also including the latter .'............ With regard to Judicial proceedings, "neither party witness, counsel, Jury, or Judge can be put to answer civilly, or criminally, For words spoken in office'. The authorities are clear, uniform, and conclusive that no action of slander or libel lies whether against judges, counsel, witnesses, or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognised by law' ............. It is not merely with respect to the hearing in open court that there is absolute privilege but also with regard to every step taken in the conduct of legal proceeding. For instance, an affidavit filed in support of as interlocutory application can in no case give a cause of action, and the same applies to the report of an official receiver under Section 8 (2) of the Companies Winding-up Act, 1890.'' At page 767, the learned authors have further observed;-
"But where something is done as a mere preliminary to setting a court in motion, as for instance where an information is laid or notice of action is given it may be doubted whether there is more than a qualified privilege which may be defeated by proof of malice."
I would presently show that whatever may be the doubt in regard to the preliminary steps, such as giving o£ notice by the creditor to the debtor to start an action in a court of law, there cannot be any doubt that in India giving information to the police of a commisable offence with. the object of setting the law in motion for the police to investigate and institute the case to be tried in a court of law is a necessary step to betaken in the conduct of a legal proceeding and statements made in such an information must be absolutely privileged. There are numerous English cases on the subject but I would first make reference to the decision of the House of Lords in H. Watson v. Mrs. J.P. Jones 1905 AC 480. The argument before the House in the words of Earl of Halsbury was--
"......... although it is true that a witness is protected from an action in respect of evidence actually given in Court of Justice yet no such protection exists in respect of his attendance before the solicitor at what is called apparently in Scottish law his precognition--what we call the interview between the intended witness and the solicitor who takes from him what we call the proof--that is to say, reduces to writing the evidence which the witness is about to give."
The learned Lord Chancellor repelled the argument in these words:-
"It appears to me that the privilege which surrounds the evidence actually given in a Court of Justice necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of proceedings in Courts of justice when what is intended to be "stated in a Court of Justice is narrated to them that is, to the solicitor or writer to the Signet. If it were otherwise, I think what one of the learned counsel has with great cogency pointed out would apply--that from time to time in these various efforts which have been made to make actual witnesses responsible in the shape of an action against them for the evidence they have given, the difficulty in the way of those who were bringing the action would have been removed at once by saying, "I do not bring the action against you for what you said in the witness-box, but I bring the action against you for what you told the solicitor you were about to say in the witness-box.' If that could be done the object for which the privilege exists is gone, because then no witness could be called, no one would know whether what he was going to say was relevant to the question in debate between the parties. A witness would only have to say, 'I shall not tell you anything; I may have an action brought against me tomorrow if I do; therefore I shall not give you any information at all. 'It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is pait of the administration of justice--namely, the preliminary examination of witnesses to find out what they can prove. It may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony."
The view taken in Watson's case, 1905 AC 480 (supra), was followed by the Court of Appeal in Berestord v. White, (1914) 30 TLR 591. I would leave out of my consideration the case of More v. Weaver, (1928) 2 KB 520 as the correctness of this decision has been doubted by the House of Lords in Minter v. Priest, 1930 AC 558. But I would rely upon a recent decision of the Court of Appeal in Szalatnay Stacho V. Fink, (1947) KB 1.
In 1941 the Plaintiff was the Czechoslovak Acting Minister in Egypt, and the defendant was the General Prosecutor of the Czechoslovak Military Court of Appeal, a tribunal establish d in England under the Allied Forces Act, 1910. In November of that year, the defend nt wrote and despatched a letter marked as being confidential, to the Military Office of the president of the Republic of Czechoslovakia, the Government of which, owing to the occupation of that Country by the Germans, was then functioning in London. That letter contained certain defamatory statements relating to the plainiff. He, therefore, brought an action for libel alleging that by the communication he was charged with serious criminal offences, disloyalty to his country and with unfitness to be employed in the Czechoslovak diplomatic service. The action proceeded on the footing that none of the changes was well founded. The defendant did not plead justification, but relied on the plea of privilege, absolute or qualified. Evidence was given on his behalf, and accepted by the trial Judge, that an action founded on libel was inconceivable under Czech law as against a defendant who was a state official and acting as such.
Henn Collins, J., dismissed the action, holding that the communication was absolutely privileged. The plaintiff appealed. On behalf of the defendant, it was argued before the Court of Appeal that the communication was a step in Judicial proceedings and as such absolutly privileged. During the course of the argument, Cohen, L. J., observed:-
"Admittedly this communication could not have been directed to proceeding in a military Court, and there was no Czech civil court functioning in London. It could atmost be directed to some executive action. It is very difficult in those circumstances to say that this communication was a report which could properly be considered as a step in Judicial proceedings."
Dealing with the submission of Mr. Slads, counsel for the defendant, that the communication should be protected as being first step in criminal proceedings, Sommervell, L.J., delivering the Judgment of the Court, and after considering the earlier English cases including the cases of 1905 AC 480 and (1914) 30 TLR 591 referred to by me above, has said at page 11--
"In the view we take of this document, it was not the first step in Criminal proceedings. At that time there were no Czechoslovak Courts available either here or in Czechoslovakia before which the plaintiff, not being a soldier, could be charged."
The learned trial Judge has based his decision on a different principle. According to him, although the document was made and published in England, he felt that he must consider what would have been the rights of the parties if the action had come before a Czechoslov kian Court. But this basis of applying the Czechoslovak 1 w was not accepted by the Court of Appeal and it was observed--
"Having due regard to the exceptional position of the Czechoslovak Government, we do not think that the principle of the comity of nations compels or entitles the Courts of this country to apply Czechoslovak law to acts done here, in proceedings in tort between Czechoslovak citizens, that law giving a general protection in civil suits to acts done by officials, which is not afforded under our law. This would be to make inroad on a very fundamental principle. I there is to be such an application of foreign law in the circumstances set out it would in our opinion, have to be expressly provided for by legislation. We, therefore, decide that this document was not absolutely privileged."
Applying the doctrine of qualified privilege, however, it was held that the letter was not written out of malice and in the result the appeal was dismissed.
6. In the instant ease, it would be noticed that giving information to the Police was the first step in Criminal Proceedings. The Police treated the information given by the appellant as a first information under Section 154 of the Code of Criminal Procedure (hereinafter referred to as the Code). Section 44 (1) of the Code provides--
"Every person, whether within or without the presidency-towns, aware, of the commission of, or of the indention of any other person to commit, any offence punishable under any o[ the following sections of the Indian Penal Code (namely), 121, 121-A, 122, 123, 124, 124-A 125, 126, 130, 143, 144, 145, 147, 148, 302, 303, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 456, 457, 458, 459 and 460, shall, in the absence of reasonable excuse, the burden of proving which shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.'' Under Section 156 investigation into cognizable cases has to be done by the officer in charge of the police station, on whom it is incumbent to forward a report to the Magistrate empowered to take cognizance of the offence on a police report in the prescribed form under Section 173 (1) of the Code. Cognizance of the offence can be taken by the Magistrate concerned under Section 190 (1) (b) of the Code 'upon a report in writing of such facts made by any police officer'.
In my opinion, therefore reading these provisions of the Code, it is clear that the appellant's statements in the communication to the police was a report which would properly be considered as a step in judicial proceedings'. The mere fact that a final report was submitted in the case, in my opinion, would not make any difference. Judicial proceedings might start or might not The question as to whether the statement made in an information given to the police of a cognizable offence is absolutely privileged or not would not depend upon the future event of the starting of the judicial proceedings. Even after starting of such proceedings, it may be found that the case was false and that the information was given out of malice. This point of distinction made out in some of the Indian cases does not commend to me and I am of the view that such a statement confined in a communication to the police or made before a police officer with the object of string, or in relation to, judicial proceedings is absolutely privileged. If that be not so, no body giving information to the police would be safe for he will have to run the risk of being civilly liable for the information. It may well be that if the information is found to be false and to have been actuated by malice, the informant is criminally liable for defamation under the Indian law as embodied in section 499 of the Penal Code or even civilly liable under certain circumstances to pay damages ges for malicious prosecution but he must be held to enjoy the absolute privilege and protected from civil liability for defamation on such a statement.
In volume 24 of Halsbury's Laws of England, 3rd edition, in Article 91 at p. 51, it is stated--
"The privilege attaches not merely to proceedings at the trial, but to proceedings which are essentially steps in judicial proceedings, including statements in pleadings and communications passing between a solicitor and his client on the subject on which the client has retained the solicitor and which are relevant to the matters."
On principle, I find no difficulty in extending the applicability of the doctrine of absolute privilege to the statements made before the police in connection with the alleged commission of a, cognizable offence, inasmuch as this is essentially a step in judicial proceedings.
7. In Baboo Gunesh Dutt Singh v. Mugneeram Chowdbry, 17 Suth WR 283, accusations were made against Gunesh Dutt Singh of having been accessory to the murder by inciting his partisans to violence. He was brought before the Magistrate, who, however, upon hearing the case dismissed it as against him for want of proof, and declined to commit him for trial. There upon, Gunesh Dutt Singh brought an action which was called a suit to recover damages for defamation of character.
Their Lordships of the Judicial Committee agreed with the High Court and opined that such an action could not be brought as the witnesses could not be sued in a civil court for damages in respect of evidence given by them upon oath in a judicial proceeding. They, however, observed that the action could be supported as one to recover damages for malicious prosecution in which case the burden would lie upon the plaintiff to prove that defendants were the prosecutors of the criminal proceedings against the plaintiff; that they were actuated by malice; and further that their proceedings were without any reasonable or probable cause. The proposition of law laid down by the Privy Council with reference to the evidence of witnesses in judicial proceedings is beyond any question now.
In the instant case, the decree of the learned single Judge cannot be suppor ed as a decree in an action for malicious prosecution as, in that event, the entire finding would be vitiated by the wrong throwing of onus on the appellant on whom the onus lay to prove want of malice in action to recover damages for defamation.
8. On behalf of the respondents, reliance was placed on Golap Jan v. Bholanath Khettry, ILR 38 Cal 880 in support of the contention that in the instant case no action to recover damages for malicious prosecution would be maintainable as, in fact, the respondents were not prosecuted in any Court of law. In the Calcutta case, a complaint had been laid before a Magistrate by the defendant against the plaintiff for criminal breach of trust and the Magistrate referred the matter to the police under Section 202 of the Code for enquiry and report and finally dismissed the complaint under section 203 of the Code without issuing processes. It was observed that the prosecution had not commenced and no suit for malicious prosecution was maintainable. Although I am not called upon to finally decide as to whether a suit for damages for malicious prosecution would have been maintainable in this case, I would only observe that the authority of Gopal Jan's case, ILR 38 Cal 880 does not seem to have been approved in a recent Privy Council decision in Mohamd Amin v. Jogendra Kumar, AIR 1947 PC 108.
9. Mr. T.K. Prasad placed reliance upon the Full Bench decision of the Allahabad High Court in Majju V. Lachman Prasad, ILR 46 All 671 : (AIR 1924 All 535) and the case of Joseph Maye v. Charles Warwick, ILR (1943) 1 Cal 250. The so-called Full Bench decision of the Allahabad High Court, as has been pointed out by Blagden, J., in Joseph Maye's case, ILR (1943) 1 Cal 250 is not really a decision of the Full Bench. Walsh, Acting C.J., sitting singly, decided the suit for damages for defamation. The alleged defamation had been done in a written document in the nature of a report or information lodged with the police officer in which the defendants charged the plaintiffs with assault and rioting, both of which were cognisable offences. The police took no action. A complaint was eventually laid before a Magistrate and that too was dismissed. The plaintiffs thereafter brought a suit for damages.
While hearing the second appeal, Walsh A. C. J., sitting singly, held--
"I cannot agree with the two courts that information or a report made to the police comes within this principle. The District Judge says that the first report to the police in a cognizable case is a commencement of a judicial proceeding and that the report is receivable in evidence. There is a fallacy in this statement. It may lead to a judicial proceeding or it may not, but it is a preliminary step taken before any judicial proceeding has been commenced. If as the learned Judge says, the report is receivable in evidence and is in fact taken in evidence in the course of a judicial proceeding, then no doubt, by the Full Bench decision, that publication, namely, the putting it in as evidence in a judicial proceeding, would be absolutely privileged.' An appeal was filed under the Letters Patent in the Allahabad High Court against the decision of Walsh, A. C. J., and it is rather extraordinary and interesting to find that, in spite of the preliminary objection raised on behalf of the appellants as to the desirability and propriety of a Judge taking part in the hearing of an appeal against his own decision, Walsh, A. C. J., presided over the Full Bench constituting of himself, Raves and Dalai, JJ. The Bench affirmed the decision of the learned single Judge without any discussion of the point decided in the second appeal.
With respect. I do not agree with this decision of the Allahabad High Court as, in my opinion, if the statement was made as a preliminary step to the starting of the judicial proceedings, the same (statement) is absolutely privileged irrespective of the fact as to whether the judicial proceedings actually had commenced or not.
10. Blagden, J., has however, considered the point exhaustively in Maye's case, ILR (1943) 1 Cal 250 but I respectfully differ from it. Considering the various English authorities, he has summed up the position of law in England at p. 263 and catalogued the different types of statements which according to the law in England, are absolutely privileged and thereafter has observed at page 264--
"In particular, a statement to an officer of the police with a view to setting the criminal law in motion is certainly not, as such, privileged absolutely in England."
The learned Judge has thereafter pointed out the three modes of instituting criminal proceedings in England. Against proceedings for defamation, the two courses of instituting criminal proceedings before the Grand Jury at the Assize or Quarter Sessions for the county or borough or before the Magistrate it has been pointed out, afforded the informant complete and absolute protection, but he was exposed to the risk of an action for malicious prosecution if the prosecution failed. The third course of laying a complaint before a police officer freed the informant the risk of malicious prosecution unless indeed he made the police his agents by saying, "in effect, 'I wish you to prosecute whatever you think about it' ".
I do not find any such distinction in the law as at present prevailing in this country. If the informant gives a false information to the police, he may be liable to damages for malicious prosecution even though in express words he did not ask the police to prosecute; he may be criminally liable under Sections 182, 211 or 499 of the Penal Code. But the mere falsity of the information should not expose him to the risk of proving want of malice in a civil action for damages for defamation. I find myself in respectful disagreement with the observations of Blagden J., whereby he has distinguished the earlier Indian authorises on the point including a Bench decision of the Calcutta High Court in Madhab Chandra Ghose v. Nirod Chandra, ILR (1939) 1 Cal 574 : (AIR 1939 Cal 477).
11. In the said Calcutta case a suit was filed for recovery of Rs. 500/- as damages against the defendants on the ground that they had made certain defamatory statements against the plaintiffs by sending a certain report to the police and gave false evidence in two criminal cases. In a well considered judgment, if I may any so with reject, S.K. Ghose, J., held at page 479 (AIR Volume):-
"With regard to the question whether statements to the police as distinct from statements in Court are protected, I have already pointed out that the settled law in England is that statements made with a view to repeating them on oath in a subsequent judicial proceeding are similarly protected. In a sense, statements made to the police appear to be in this respect on, stronger ground than statements made to the solicitor as reported in (1905) AC 480 or (1914) 30 TLR 591. For statements made to a solicitor may or may not be followed up by judicial proceeding, the matter being at the opinion of the party consulting such solicitor, in which case the statement would slumber in the office of the solicitor as Lord Halsbury said. But the party lodging information before the police has no option and the police are empowered to go on with the matter and investigate, leading to other results. It has been held in the case of complaints to a Magistrate followed by statements to the police to whom the Magistrate may have referred the matter for investigation that such statements are absolutely privileged and no action for defamation is maintainable. See the case in Sanjuvi Reddy v. Koneri Reddy, ILR 49 Mad 315 : (AIR 1926 Mad 521)".
The Madras case noticed by the learned Judge is a Bench decision or that Court also reported in AIR 1926 Mad 521, wherein Coutts-Trotter, C. J., observed at page 523--
"I am, therefore, of opinion that the statements made to the police officer which could not be made with a view to their being repeated on oath before the Magistrate, were absolutely privileged".
Vishwanatha Sastri, J., another member of the Division Bench of the Madras High Court, deciding Sanjivi's case has observed--
"I am, therefore, of opinion that apart from Section 202 of the Criminal Procedure Code, it was competent to the Deputy Magistrate, Adoni, to have referred the matter to he Police for investigation and that the Sub-Inspector of Police, Aspari, was entitled to hold the investigation and having presented the petition, it was the duty of the defendant to assist in the investigation.
It was said that such wide privileges would have disastrous consquences on innocent citizens, who would be left without redress. But it will always be open to such person to put Sections 182 and 211, Indian Penal Code, in motion by an application under Section 195, Criminal Procedure Code."
In Balammal v. Palandi Naidu, AIR 1938 Mad 164 the facts were that the defamatory matter complained of was a communication made by the defendants 1 and 2 to a vakil and repeated by the said vakil in a letter addressed to plaintiff No 1. After an exhaustive consideration of the standards English text book and authorities in England and in India Venkataramana Rao, J., on the facts of that case, held:--
"In our opinion, the older view of treating communication like the one in question under the head of qualified privilege ought to be the rule of justice, equity and good conscience ....
Therefore the defendants cannot escape liability for their wrongful act, unless it is proved that in so doing they were not actuated by malice."
The learned Judge came to this conclusion however, by observing at page 167--
"Unless therefore a communication is made to a solicitor in connection with a judicial proceeding or in connection with a necessary step preliminary thereto or with reference to an act incidental to the proper initiation thereof, (Bottomley v. Brougham (1908) 1 KB 584 at pages 588 and 589), it would not be absolutely privileged and therefore prima facie the communication made by defendants 1 and 2 to Mr. Krishnamachari in connection with the reply notice dated 9th of May would not he protected by the absolute immunity from liability to an action. But in 1928 the Court, of Appeal in England seems to have extended the doctrine of absolute privilege even to communications between a solicitor and a client though not connected with any judicial proceeding or a necessary step preliminary thereto."
The last observation in the quotation was made with reference to the decision of the Court of Appeal in the case of (1928) 2 KB 520. I have already noted above that the correctness of this authority was doubted by the House of Lords in 1930 and, therefore, I have also not placed reliance upon this case.
But the distinction between the Madras case and the case in hand is that, while in the former it was held that the latter was not written in connection with any judicial proceedings or as a necesary step preliminary thereto, in this case I find that the information was given to the police as a necessary step to the starting of a judicial proceeding although on investigation the information was found to be false and no judicial proceeding started.
In Madhab Chandra's case, AIR 1939 Cal 477 B.K. Mukherjea, J., as he then was, was also a member of the Division Bench and by a separate judgment, he concurred in the decision of S.K. Ghose, J. Mukherjee, J. observed--
"No action for defamation therefore lies in respect of the statements made by the defendants as witnesses in the criminal cases even though the statements were false and malicious. The question now arises as to whether this immunicy can be claimed in respect of the statements contained in the reports Exts, 1 and 2 which were sent to the police by defendants 3 and 5 ...... I do not think therefore that I can accept the argument of the learned advocate for the respondent client that the statements as contained in the police report were not privileged simply because they were made by parties and not by witnesses."
The learned Judge further observed that another argument could indeed be advanced as to the statement contained in the reports on the ground that these statements were not made in the course of any judicial proceeding but were made only before a police officer and were, therefore, not absolutely privileged. But, on referring to Watson's case, (1905) AC 480 the argument did not find favour with him.
12. I, therefore, hold that the view taken by the learned single Judge of this Court that the statement contained in Ext. 3 was not absolutely privileged is not correct.
13. In the result, this appeal is allowed the judgment and decrees of the learned single Judge of this Court are set aside and those of the teamed Subordinate Judge are restored. I would make no order as to cost.
Ramaswami, C. J.
14. I agree.