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5. By his order dated 20-7-1981 the learned Magistrate dismissed the complaint in liming holding that it was not maintainable. He formed the view that the accused enjoyed complete immunity by reason of absolute privilege and no complaint therefore can be preferred under Section 500 IPC. From his decision the petitioner has come in revision.

6. The trial Magistrate has put his decision on the grounds that the imputations against the petitioner, defamatory per se though he held them were absolutely privileged as these were made in the course of judicial proceedings. It is the correctness of this view that is in question.

7. The concept of defamation is as old as the hills. The classic definition was given by Mr. Justice Cave in Scott v. Sampson (1882) 8 QBD 491 as "a false statement about a man to his discredit". In Sim v. Stretch (1936) 52 TLR 669 (671) Lord Atkin gave this test : "Would the words tend to lower the complainant in the estimation of the right thinking members of the society generally ?" The malicious defamation deprives a man of the benefits of public confidence and social intercourse.

8. In the law of defamation it is a defense that the statement was made on a privileged occasion. In certain circumstances it is excusable to publish matter which is defamatory. Such excuse is termed privilege. Privilege is of two kinds : (i) absolute (ii) qualified. If the occasion is one of absolute privilege, this is a complete bar to an action for defamation, however irresponsible or malicious the statement may be. A person defamed on an occasion of absolute privilege has no legal redress, however outrageous the untrue statement which has been made about him and however malicious the motive of the maker of it. If, on the other hand, the occasion is one of qualified privilege, the privilege may be defeated by proof of malice. If the maker of the statement is actuated by malice he forfeits this protection of the shield of qualified privilege. The right of free speech is allowed wholly to prevail over the right of reputation in cases of absolute privilege. The right of freedom of speech prevails over the right of reputation, but only to limited extent in cases of qualified privilege.

21. Qualified privilege is a conditional defense. It affords immunity to those alone who use the privileged occasion for the purpose which the law deems of sufficient social importance to defeat the countervailing claim to protection of reputation. In other words the immunity is forfeited by the abuse of the occasion.

22. The learned Magistrate held that the respondents are protected by absolute privilege. He was clearly wrong. He was misled by cases of tort for defamation or malicious prosecution in which civil suits for damages were instituted and the courts held that the defendants were protected by absolute privilege. For the view he took the Magistrate relied on Vattappa Kone v. Muthuk Aruppan AIR 1941 Mad 538 and Narayana v. E. Subbanna, . These decisions were cases of civil liability. They were not cases of criminal prosecution. The law of civil liability is different from the criminal law of defamation in this respect.

26. A host of other objections were raised to the complaint instituted under S. 499. They relate to the merits of the questions in controversy. The learned Magistrate has grounded his decision only on absolute privilege and that view as I have shown is erroneous. It must therefore be held that the respondents can only plead qualified privilege in defense. They have no absolute privilege. I do not propose to decide other objections raised before me to the complaint because the learned Judge has not dealt with them in his order. The parties' counsel will be entitled to raise them before him.