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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.

12. Since 1872 Baboo Ganesh Dutt Singh (1872-17 Suth WR 284) (PC) (supra) has been followed in India whenever a suit for damages has been brought, whether for defamation or for malicious prosecution. (See Madhab Chandra v. Nirod Chandra, AIR 1939 Cal 477 and Lachhman v. Pyarchand, ).

13. With criminal liability it is different. The criminal liability for defamation is codified in India. It is enacted in S. 499 of the Penal Code and differs from the law of England. S. 499 confers only qualified privilege on certain occasions. It is common to speak of the statement as having privilege, but the better view is that it is an occasion and not the statement which is privileged. (See Minter v. Priest (1930) AC 558, 571-72). A complete list of those occasions of qualified privilege is furnished by nine exceptions enacted in S. 499. The Indian Penal Code exhaustively codifies the law relating to offences with which it deals and the rules of the common law cannot be resorted to for investing exemption which are not expressly enacted.

20. What is the nature of this qualified privilege ? When an occasion of qualified privilege exists a person (provided he is not actuated by malice) is entitled to make defamatory statements about another. The statement must be made honestly and without any direct or improper motive. The principle is that the statement is protected if it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. (Too good v. Spyring (1834) 40 R R 523). The exceptions to S. 499 afford examples of this qualified privilege. These occasions are called occasions of qualified privilege, for the protection which the law, or grounds of public policy, affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made. If the freedom of speech is absurd and the liberty is made the cloak of maliciousness, the maker of the statement will not be able to rely on the privilege.

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.