Pandey Surendra Nath Sinha v. Bageshwari Pd

Raj Kishore Prasad, J.

(1) These two appeals, by the plaintiffs, arise out of an action for damages for libel by the defendant.

(2) The suit was partly decreed by the first Court, in favour of plaintiff 2 only, but when the matter was taken in appeal by the defendant, the plaintiffs also filed cross-objection, and the first appellate Court dismissed the cross-objection, but allowed the appeal of the defendant, and, dismissed the suit in toto. The plaintiffs, therefore have presented these two appeals, arising out of the appeal by the defendant and the cross-objection by them in the Court of appeal below.

(3) Mr. A. C. Sinha, appearing for the plaintiffs appellants, raise the following points:

(1) That the plea of privilege was not open to the defendant, as this plea was nut specifically raised either in the written statement or in the issues: (2) That, even if the question of privilege could be raised, it was not a case of absolute privilege, as rightly held by the trial Court, but wrongly held by the Court of appeal below; (3) That, at best, it was a case of qualified privilege; (4) That, if it was a case of qualified privilege then as malice had been proved by the plaintiffs, the defendant was liable; and, (5) That, the plaintiffs, therefore, were entitled to such damage as the Court thinks proper in its discretion.

(4) Mr. Rajeshwari Pd., appearing for the defendant-respondent, on the other hand, while countering the above arguments submitted that the Court of appeal below has correctly decided the appeal.

(5) In order to decide the above questions, it is necessary to know the facts of the case, which may briefly be stated as below.

(6) On the 19th of October, 1953, the defendant filed a petition before the Superintendent of Police, Saran, Chapra, against the plaintiffs and two Others. The offending statements, in the said petition, Exhibit I, which are said to be defamatory of the plaintiffs, are the following: (1) ". . . . Surendra Narain Sinha (that is, plaintiff 2) who has perhaps been rusticated for five years). . .", and. (2)" .... that raking advantage of his relationship with Shri Jogcndra Pd. Sub-inspector of Manjhi, Pandcy Jagannath Pd. (that is, plaintiff, 1, father of plaintiff 2) intevenes in almost all the disputes of the locality and terrorises the parties therein and derives undue advantage from him, which will be fully proved, by an independent and impartial enquiry made by a responsible officer."

(7) The prayer made in the said petition was that "some suitable steps may kindly be taken after due enquiry for preventing such illegal acts so that the real and genuine grievances of the persons concerned may be mitigated." The plaintiffs, therefore, alleged that the above statements were defamatory, which caused them loss of reputation and prestige, and, as such, they (are) entitled to Rs. 100 as nominal damages from the defendant.

(8) The suit was contested by the defendant. The defence was that on the 18th of October, 1952, the plaintiff 2 along with his brother and servant, came to the defendants residence and shouted and used abusive and threatening words against him, on the pretext that he had used abusive Language against plaintiff 1, and, therefore, the defendant, next day, on the 19th of October, 195

2. filed a petition before the Superintendent of Police to make accessary enquiry into the matter and to take steps against the plaintiffs. The defendant alleged that the statements made in the petition to the Superintendent of Police were true and not actuated by any malice.

(9) The trial judge, who heard the suit in the first instance, held that the statements complained of made in petition (Exhibit 1) regarding the character of plaintiff 1 was absolutely correct, but the statement made in it with regard to plaintiff 2 was false, and, it was made with an intent to injure his reputation and to lower him in the estimation of the pubilc. He further held that the statements made by the defendant against the character oi the plaintiffs could not be said to be absolutely privileged. He, therefore, found that plaintiff 2 was entitled to damages from the defendant, and accordingly, a nominal damage of Rs. 25 was awarded to him.

(10) On appeal, the learned Subordinate Judge, who heard the appeal, took the view that the statements made in the petition (Exhibit 1) were absolutely privileged, and therefore, the defendant was not liable to damages. He, further, observed that the statement complained of regarding plaintiff 2 was that "perhaps" he had been rusticated for five years, and, therefore, the use of the word "perhaps" shows that the defendant did not categorically state that plaintiff 2 was rusticated. The finding ot the first Court, however, that the statement made by the defendant regarding plaintiff 1 was correct was neither expressly reversed nor affirmed by the Court of appeal below. He, therefore, dismissed the plaintiffs suit in its entirety.

(11) For a proper appreciation and determination of the points raised, it would be useful, at the outset, to know the law relating to an action tor defamation, with particular reference to libel.

(12) Speaking generally, every man is entitled to his good name and to the esteem in which he is held by others, and, has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person or persons without lawful justification or excuse. Reputation and honour are no less precious to good men than bodily safety and freedom. In some cases they may be dearer than life itself. Thus it is needful for the peace and well-being of civilized commonwealth that the law should protect the reputation as well as the person of the citizen.

(13) In India, both libel and slander are criminal offences. We are, however, not here concerned with libel as a criminal offence, hut only with the civil wrong and the right to redress it in a civil action.

(14) A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be shunned or avoided or regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. Defamation, therefore, is the wrong done by a person to anothers reputation by words, signs, or visible representations.

(15) The test of the defamatory nature of a statement, thereiore, is its tendency to excite against the plaintiff the adverse opinions or feelings of other persons. The statement is judged by the standard to opinion which prevails among ordinary, right-thinking members of society, reasonable people of time and place, and not the opinion which prevailed in another time, or in another country or among a special class or abnormally constituted people. Hence, the test is an objective one, and it is no defence to any that the statement was not intended to be defamatory, or uttered by way ot a joke. As lightly said: "No one can cast about firebrands and death, and then escape from being responsible by saying he was in sport."

(16) A wrong ot defamation, as such, consists in the publication of a false and defamatory statement concerning another person without lawful justification.

(17) The word defamation is the generic name for the wrong; libel and slander are particular forms of it. Defamation, therefore, is of two kinds, namely, libel and slander. In libel the defamatory statement is made in some permanent and visible form in writing or otherwise recorded, such as, printing, typing, pictures, photographs, caricatures, effigies. In slander the defamatory statement or representation is expressed by speech or its equivalents, that is, in some other transitory form, whether visible or audible, such as, a nod, wink, smile, hissing, the finger-language of the deaf and dumb, gestures or inarticulate but significant sounds.

(18) The actions of libel and slander are thus private legal remedies, the object of which is to make reparation lor the private injury done by wrongful publication to a third person or persons of defamatory statements concerning the plaintiff. The defendant in these actions may prove the truth ot the defamatory matter and thus show that the plaintiff has received no injury. For though there may be damage accruing from the publication, yet, if the facts published ace true, the law gives no remedy by action.

(19) We are here concerned with an action for libel. In an action for libel the plaintiff should prove that the statement complained of (1) refers to him; (2) is in writing, (3) is defamatory, and, (4) was published by the defendant to a third person or persons. A man publishes defamatory statements at his peril. An action for libel, therefore, lies on mere proof of publication, even though the plaintiff does not prove that he has sutiered any special damage, that is, the loss of some definite temporal advantage.

(20) On proof of the above facts, the plaintiff makes out his case, and, then it is for the defendant to establish one of the defences recognised by law.

(21) It may, however, be mentioned that, although both in England and in India, it is unnecessary for the plaintiff to prove the following facts, it has been customary to allege them in the plaintiffs pleading; (a) Falsity of the statement. It is for the defendant to prove that it is true; (b) Malice of the defendant. The plaintiff has to prove malice to rebut the defence of privilege or fair comment, but otherwise it is not necessary in order to make out the plaintiffs case. The allegation of malice means nothing more than that the defendant published a defamatory statement without lawful excuse; and (c) damage to plaintiffs reputation. The law presumes it from the defamatory tendency of the words. The above points the plaintiff need not prove.

(22) Besides the general defences applicable to all actions in torts, such as, limitation, consent, accord and satisfaction, previous judgment, etc., the three special defences available in an action for defamation, under the common law, are (1) justification (or truth), or (2) privilege, absolute or qualified, and, (3) fair comment. In England there is a statutory defence in actions for libel against newspapers, viz., apology.

(23) We are here concerned with the first two defences, that is, Justification and Privilege.

(24) The defence of justification is the plea of truth of the words or statements published by the defendant. The form of the plea is that "the words complained of are true in substance and in tact". Truth is a defence in a Civil action, "For the law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess." No action, therefore, will lie for the publication of a defamatory statement if the defendant pleads and proves that it is true. This is so even though the defendant is proved to have been actuated by malicious and improper motives. In a civil action the defendant has to plead and prove the truth of the defamatory words, and not merely his belief in their truth, though honest. Therefore, if the words, or the statements, complained of, are true, he escapes liability, however improper his motives may have been. If, however, the word or statement turns out not to be true, he is liable, however honestly and carefully he may have acted and however inevitable his mistake, the liability is almost absolute.

(25) Privilege is used here in the sense of an excuse or immunity conferred by law on statements or communications made on certain occasions called privileged occasions. A privileged statement, therefore, is one which is made in such circumstances as to be exempt from the rule that a man attacks the reputation of another at his peril, that is, at his own risk. In other words privilege includes those exceptional cases in which it is not enough, in order to create liability, to prove that the defendant has published a false and defamatory statement. The defendant being privileged, is not responsible for this alone; he is either wholly free from responsibility or is liable only on proof that he was animated by a malicious motive, and not by any genuine intention to use his privilege for the purpose for which the law gave it to him,

(26) Privilege is of two kinds: (1) absolute and (2) qualified.

(27) Absolute Privilege: A statement is said to be absolutely privileged when it is of such a nature that no action will lie for it, however false and defamatory it may be, and even though it is made maliciously, that is to say, from some improper motive. These cases are at the opposite extreme from the ordinary cases of unprivileged defamation. When a statement is not privileged, it is actionable, however honest its publication may have been; but if it is absolutely privileged it is not actionable, however dishonest its publication may have been. On such occasions the interest of society requires that a man should speak out his mind fully and frankly without thought of fear or consequences. The general good of the commonwealth requires that there should be absolute freedom of speech and that no restraint should be laid upon it. On such an occasion irce speech wholly prevails over the right or reputation. This rests on the ground of public interest or the due administration of justice. The real doctrine, of what is called Doctrine of absolute privilege, is that in the public interest it is not desirable to enquire whether the words or acts of certain persons are malicious or not. It is not that there is any privilege to be maii-cious. The reason for the doctrine is that it is desirable that persons who occupy certain positions, or example, Judge, Advocates, and witnesses, in the course of legal proceedings, should be permitted to express themselves with complete freedom; and to secure their independence, absolute privilege is given to their acts and words, so that they should not be brought before other Courts for inquiry merely on the allegation that they were malicious. It is a striking instance of the subordination of the individuals interest to that of the community.

(28) The occasions of absolute privilege may be classed as the administration of justice, proceedings in Parliament and advising the State in affairs of State, this last mentioned category extending to communications between officers of State in relation to State affairs. The plea of absolute privilege, therefore, is available, for example, in respect of any statement made in the course of and with reference to judicial proceedings by any Judge, jurymen, party, witness or advocate. Such privilege is called judicial privilege and "professional privilege."

(29) We are concerned here with Judicial Privilege. This privilege extends to all Courts, superior or inferior, civil or revenue or military. It applies not only to all kinds of Courts of justice, but also to other tribunals recognised by law and acting judicially. The privilege, although it extends to tribunals acting in a manner similar to Courts of justice, does not, however, apply to tribunals which merely discharge administrative functions, or to officials possessing merely administrative as opposed to genuinte judicial functions, and it makes no difference that in the performance of these administrative functions they exercise a judicial discretion. The privilege attaches not merely to proceedings at the trial, but also to proceedings which are essentially steps in judicial proceedings, including statements in pleadings. This privilege, therefore, will also apply to Officers of Court, who may have a duty to report in the course of a judicial proceeding.

(30) The above principles will be the decisive factors in deciding the question, here, whether the complaint made to the Superintendent of Police was absolutely privileged, as held by the Court of Appeal below

(31) As answer to this question however will depend on, whether he was merely exercising administrative functions or judicial functions, or, whether he was acting in the course of a judicial proceeding, and, whether the enquiry, he was asked to make, was a judicial enquiry.

(32) I will now take up the second question, whether the defendant was entitled to absolute privilege, first, as this question is really the crux of the matter, and, on its decision will depend the decision of the other questions raised.

(33) The ground on which Mr. Sinha urged that, here, was not a case of absolute privilege, was that, in the present case, the statements complained of, were made in a petition filed before the Superintendent of Police to get "an independent and impartial enquiry made by a responsible officer" and, then, after due enquiry, to take some suitable steps, by him, and, it was not a complaint before a Magistrate, or, any other Court of Justice, and, as such it could not be a case of absolute privilege at all.

(34) In support of his above contention, Mr. Sinha relied on a Full Bench decision of the Allahabad High Court in Majju v. Lachhman Prasad, AIR 1924 All 535 [LQ/AllHC/1924/158] : ILR 46 All 671; a decision of Sen, J., sitting singly, of the same Court, in Md. Samtulla, Khan v. Bishu Nath, AIR 1928 All 316 [LQ/AllHC/1927/159] ; a Division Bench decision of the Calcutta High Court, in Madhab Chaudra Ghose v. Nirode Chandra Ghose, AIR 1939 Cal 477 [LQ/CalHC/1939/40] ; ILR (1939) 1 Cal 574; a decision of Blagden, J., sitting singly, of the same Court, in Joseph Mayr v. Charles Warwick Rivaz, 47 Cal WN 627: ILR (1943) 1 Gal 250; and a decision of Abdur Rahman J., sitting singly, of the Madras High Court, in Vattappa Kone v. Muthu Karuppam Servai, AIR 1941 Mad 538 [LQ/MadHC/1940/431] .

(35) Rajesbwari Prasad, appearing for the respondent, however, relied, very strongly, on the decision of King J., silting singly, of the Madras High Court, in Bapalal and Co. v. A. R. Krishnaswami Iyer, AIR 1941 Mad 26 [LQ/MadHC/1940/211] , in which the above mentioned case of (i) Madhab Chandra Ghose, AIR 1939 Cal 477 [LQ/CalHC/1939/40] , and, (ii) Majju, AIR 1924 All 535 [LQ/AllHC/1924/158] (FB), which affirmed the decision of Walsh, J., sitting singly, in Lachman Prasad v. Majju, 77 Ind Cas 913: (AIR 1923 All 167), also relied upon, were also referred to.

(36) As observed by Lord Uthwatt, in M. G. Perera v. Andrew Vincent Peiris, AIR 1949 PC 106 [LQ/PC/1948/74] , on an appeal to the Privy Council from Ceylon, the general principle underlying the defence of privilege is the "common convenience and welfare of society", or, "the general interest of society". For that reason, it was said there, that in the case of reports of judicial and parliamentary proceedings, which were under consideration there, the basis of the privilege is not the circumstance that the proceedings reported arc judicial or parliamentary -- viewed as isolated facts -- but that it is in the public interest that all such proceedings should be fairly reported, and, the basis of the privilege, therefore, is the general advantage to the country in having these proceedings made public.

(37) The doctrine of judicial privilege, has, in process of time, developed, and, now, it has been extended to tribunals exercising functions equivalent to those of an established Court of justice. The law on the subject is stated by Lord Isher in Royal Aquarium and Summer find Winter Garden Society v. Parkinson, (1892) 1 QB 431, at p. 442, where "the noble Lord says that the privilege, "applies wherever there is an authorised inquiry, which though not before a Court of justice, is before a tribunal which has similar attributes ........ The doctrine has never been extended further than to Courts of justice and tribunals acting in a manner similar to that in which such Courts act." The above statement of the law on the subject was stated to be accurately laid down by Lord Esher and was quoted with approval, by Lord Atkin, in William Francis OConnor v. Gordon Waldron, AIR 1935 PC

3. Lord Atkin, at p. 4, said:

"The question therefore in every case is whether the tribunal in question has similar attributes to a Court of justice or acts in a manner similar to that in which such Courts act This is of necessity a differentia which is not capable of very precise limitation. It is clear that the functions of some tribunals bring them near the line on one side or the other; and the final decision must be content with determining on which side of the line the tribunal stands. There must be remembered on the one hand the public policy which protects the independence of the Judge; and on the other the public policy which requires that a citizens reputation must be protected against false and malicious defamatory statements."

Their Lordships, in the above case, held that a Commissioner appointed under the Combines Investigation Act is not such a tribunal having attributes similar to those of a Court of justice.

(38) It is manifest, therefore, from the above persuasive decision of the Privy Council, that the doctrine of judicial privilege, even when extended to tribunals exercising functions equivalent to those of an established Court of justice, applies where there is an authorised enquiry, which though not before a Court of justice, is before a tribunal which has similar attributes, has never been extended further than to Courts of appeal and tribunals acting in a manner similar to that in which such Courts act.

(39) The question, therefore, which arises, here is, has a Superintendent of Police attributes similar to those of a Court of justice; or, Does he act in a manner, similar to that in which such Courts act In my opinion, the answer must be in the negative. The Superintendent of Police is merely an administrative machinery for enquiring whether offence had been committed. His conclusion, under the Criminal Procedure Code, is expressed in a report; he determines no rights, nor the guilt or innocence of any one. No doubt, he can initiate a proceeding, but it is to be left to the ordinary criminal procedure. While it is true that he is charged with a duty to enquiry, whether an offence has been committed, and, thereafter, to submit a report to the Court of justice for proceeding in accordance with law; but it cannot be said, with any stretch of imagination, that he has attributes similar to those of a Court of justice so as to make the occasion one of absolute privilege. The enquiry before the police is not a judicial enquiry. The Superintendent of Police, charged with the duty of enquiry, in exercising merely administrative function, was not, in doing so, acting "judicially so as to be entitled to judicial immunity. He was asked to make a private enquiry, but, he did not do so, nor did he submit a report to any Magistrate. He cannot, therefore, be said to be acting in course of a judicial proceeding. For these reasons, in my opinion, the privilege cannot be called an absolute privilege, but, at best, a qualified privilege.

(40) In this connection, while referring to the statement of law of Lord Dunedin, in Hearts of Oak Assurance Co. v. Attorney General, (1932) A. C, 392, that an enquiry by an Inspector under statutory powers given by the Friendly Societies Act, was not a judicial proceeding, and, that privilege in it would be qualified, not absolute, in the just mentioned Privy Council case, AIR 1935 PC

3. At p. 5, Lord Atkin made the following observation, which may appositely be read here:

"The defendant in this case will be protected if he establishes that he spoke the words complained of on privileged occasion, and the plaintiff fails to prove express malice. This is the measure of protection given to other administrative officers exercising similar duties, and their Lordships know of no legal principle which affords any further or better protection."

The above conclusion of mine, that a complaint made to a Superintendent o Police is not absolutely privileged is also supported by most of the decisions, relied upon by Mr. Sinha, also by other cases mentioned hereinafter.

(41) But before I do so, I want first, to notice the case, strongly relied upon, by Mr. Prasad for the respondents.

(42) In AIR 1941 Mad 26 [LQ/MadHC/1940/211] , King J. held that a complaint to a police officer, from its very nature as a statement which the complainant is prepared later, if called upon to do so, to substantiate upon oath, is absolutely privileged. His Lordship, in coming to the above conclusion, was obviously impressed by the decision of the Calcutta High Court, in Madhab Chandra Ghoses case, AIR 1939 Cal 47

7. But as I shall shew presently, the above view is not correct in law, and, I express my respectful dissent to it. I am, therefore, unable to follow it and take it as a correct guide.

(43) In AIR 1924 All 535 [LQ/AllHC/1924/158] (FB), a written report or information was lodged with the police officer, in course of his duty, charging the plaintiffs with assault and riot, both of which were Cognizable offences. The police took no action on the report. A complaint was eventually made before a Magistrate and dismissed. The plaintiffs then brought a suit for damages. On those facts, it was held that an information or a report made to the police, does not come within the rule of absolute privilege, which covers judicial proceedings, nevertheless, it is prima facie privileged, that is to say, the person making it has the right to make it if he honestly believes it and the person receiving it has the duty to receive it; but, qualified privilege, as the term indicates, provides only a qualified protection, and, the person charged with defamation must prove that he used the privilege honestly, honestly believing the truth of what he said, or in other words having reasonable grounds for making the statement; and the onus of establishing that lies upon him.

(44) A similar view was taken, subsequently, by Sen, J., also, of the Allahabad High Court, in AIR 1928 All 31

6. His Lordship held, with which observation I respectfully agree, that a report made to a police officer is not a judicial proceeding and imputations contained in such a report may be privileged if there was an occasion of privilege, but they are not absolutely privileged.

(45) In Madhab Chandra Ghoses case, AIR 1939 Cal 477 [LQ/CalHC/1939/40] , however, it was held that statements made by a party in reports to police with a view to repeating them on oath in a (sic) subsequently privileged, even though they are defamatory and false, and, therefore, no civil action for damages lies. The facts of that case are quite different from the facts here. In that case, the defendant, of that suit made certain defamatory statements against the plaintiff by sending certain reports to the police and giving later false evidence in two criminal cases. As a result of the reports made by the defendant against the plaintiff the police officer started investigation, and, the result of the investigation was that a case, under Section 147 and other sections of the Indian Penal Code, against the plaintiff and others, was started. The defendant deposed in those cases, but ultimately the accused were acquitted. The plaintiff, thereafter, brought a suit for damages basing his claim on the statements made to the police and in the depositions in the aforesaid judicial proceedings. In those circumstances, it was held that statements made to the police with a view to repeating them on oath in a subsequent judicial proceeding are similarly protected.

(46) It was observed by S. K. Ghose, J., in the above case, while referring to the case of Watson v. MEwan, (1905) AC 480, that statements made to a solicitor, which may or may not be followed up by judicial proceedings, the matter being at the option of the party consulting such solicitor in which case the statements would slumber in the office of the solicitor, but the party lodging information before the police has no option and the p lice are empowered to go on with the matter and investigate leading to other results, and, therefore, it was held that, in the case of complaints to a Magistrate, followed by statements to the police, to whom the Megistrate may have referred the matter for investigation, such statements are absolutely privileged and no action for defamation is maintainable. The above observation, however, if I may say so with respect, appears to be in the nature of an obiter.

(47) In the subsequent case of the Calcutta High Court, in Joseph Mayr. 47 CWN 627, the above mentioned case, was doubted and distinguished, and, it was held that a written communication to the Commissioner of Police containing defamatory statements is not absolutely privileged. The distinction pointed out by his Lordship, Blagden, J. in the just-mentioned case, while distinguishing the case of Madhab Chandra Ghose, AIR 1939 Cal 477 [LQ/CalHC/1939/40] , was that, in that case, the Writer of the earlier offending statement to the police did, in fact, substantiate it in the witness-box but, in the case before his Lordship, that was not the position. That distinction, in my opinion, exists in the present case also, because, here, ad-mittedly the Superintendent of Police did not take any action in the matter, although he was invited by the defendant to do; and, certainly the matter was never brought to any Court of Justice.

(48) The Madras decision, in AIR 1941 Mad 538 [LQ/MadHC/1940/431] , is clearly distinguishable. In that case, a verbal complaint was made to a village Magistrate against a certain person charging him with the offence of robbery. The Magistrate ordered an enquiry by the police, which made a report that the complaint was false, and that no robbery had taken place in fact. The Magistrate, thereupon, declined to take any further action, and the proceedings were dropped. During the enquiry conducted by the police the person complained against was not even summoned. On those facts, it was held that the person complained against was not prosecuted, and he could not for that reason bring an action for damages for malicious prosecution. In that case, no doubt, an observation was made that statements made in a complaint to a Magistrate, or even a police officer, which could only be made with a view to their being repeated on oath before the Magistrate are absolutely privileged, but in my opinion, the above observation can have no application here for two reasons: (i) There the police officer made a report on being asked by the Magistrate to make an enquiry into the prior verbal complaint made to the Magistrate himself, but here that is not the position, and, (ii) the general observation, that statements made even to a police officer with a view to their being repeated on oath before the Magistrate are absolutely privileged besides being too wide, is in the nature of an obiter dictum, because, in that case, that question did not at all arise for decision.

(49) In Kishan Lal v. Moosi Raza, AIR 1923 Oudh 247: 72 Ind Cas 57, a complainant, who made a complaint in good faith to police, but was found to be false, was held not liable for defamation Kanhaiya Lal, J. C., sitting singly, held that to such a statement a qualified privilege attaches.

(50) In Ram Kirat v. Biseswar Nath, 14 Pat LT 279: (AIR 1933 Pat 35 [LQ/PatHC/1932/42] ), Sir Courtney Terrel, C. J., with whom Kulwant Sahay, J. agreed, while holding that statements made to a Magistrate for the purpose of getting him to act within the scope of his authority are matters of absolute privilege, at p. 280 (of Pat LT) : (at p. 36 of AIR), observed that:

"It has been pointed out again and again that in so far as criminal proceedings are concerned the law of defamation is not a matter of common law but is a matter of statute and of Section 499 of the Indian Penal Code. On the other hand a civil action for damages for defamation is not a matter of any legislation. It is inherited from the English Common law and is applicable in India by virtue of the principles that the Indian Courts in default of special legislation are to apply the rules of equity and good conscience which have been held certainly in this particular case to include the English Common Law of defamation. We have, therefore, in a case of civil action for defamation to apply the English Common law and it has long been a well known and commonly recognised maxim that statements made to a magistrate for the purpose of getting him to act within the scope of his authority are matters of absolute privilege".

(51) The above case was relied upon by Wort, J., sitting singly, in Bhairo Mahto v. Raj Kishore Singh, 17 Pat LT 816 : (AIR 1936 Pat 309 [LQ/PatHC/1936/43] ), in which, he held that a complaint made to a Deputy Commissioner or to a Manager of Court of Wards, for making a private enquiry into the matter, was not a case of absolute privilege, but, at best, a case of qualified privilege.

(52) In Lincoln v. Daniels, (1960) 3 All ER 205; Q. B. D., Salmon J., held that complaints made to the General Council of the Bar concerning the conduct of a member of the Bar are protected in proceedings for defamation by qualified privilege, but not by absolute privilege, since that body have no power, to carry out judicial or quasi-judicial functions and, accordingly, any document addressed to them cannot be regarded as setting in motion judicial or quasi-judicial proceedings.

(53) It follows, therefore, and, it is also quite plain, from the above authorities, that the essence of the rule of absolute privilege is that the complaint must be addressed) to a body which has judicial functions, or, quasi-judicial functions, and, the complaint must be a step in setting in motion judicial or quasi-judicial proceedings.

(54) For the reasons which I have stated, I would reverse the finding of the Court of appeal below and hold that the letter of complaint in this case is not of that character, and, as such, it was not protected by absolute privilege, and, accordingly, the plea of absolute privilege was not open to the defendant.

(55) Qualified Privilege : In order, however, to decide the question of qualified privilege, raised by the appellants, it would be useful, at this very stage, also to know, what is a qualified privilege what are its essentials and, in what respect does qualified privilege differ from an absolute privilege

(56) Privilege is qualified where the defendant is entitled to make the statement, even if it is false, but only if he makes it honestly with respect to what he states and carefully with respect to the means by which he states it. Qualified privilege exists when the defendant is exempted from the rule of strict liability for defamation not absolutely, but only conditionally on the absence of malice. When, therefore, an occasion of qualified privilege exists a person, provided he is not actuated by malice, is entitled to make defamatory statements about another. On such an occasion, no doubt the right of freedom of speech prevails over the right of reputation, but only to a limited extent, that is, only when the statement is made honestly and without any indirect or improper motive and is not actuated by any malice. Qualified privilege, therefore, is an intermediate case between total absence of privilege and the presence of absolute privilege.

(57) The principle, which determines whether any particular occasion is privileged, was expounded by Parke B. in Toogond v. Spyring, (1834) 1 Cr. M. and Rule 181, at p. 193, thus:

"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. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of the society; and the law has not restricted the right to make them within any narrow limits."

Amongst the chief instances of qualified privilege, which are relevant tor our purpose, are also the following two: (1) Statements made in the performance of a duly; whether legal, moral, or social; such as, Police investigating a crime; and, (2) Statements made in the protection of some lawful interest, which include statements in self-protection -- protection of oneself or of ones property, and statements made to the proper authorities in order to procure the redress of public grievances.

(58) A statement, therefore, is conditionally privileged, if the person who makes the communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and, the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential; per Lord Atkinson, in Adam v. Ward, (1917) AC 309, H. L. at p. 334. The privilege extends only to a communication upon the subject with respect to which privilege exists, and, does not extend to anything that is not relevant and pertinent to the discharge of the duty, or, the exercise of the right, or, the safeguarding of the interest which creates the privilege.

(59) It would be useful to know the distinction between absolute privilege and qualified privilege. The points of distinction between absolute privilege and qualified privilege are the following: "(i) In absolute privilege, it is the occasion which is privileged, and when once the nature of the occasion is shown, it follows, as a necessary inference, that every communication on that occasion is protected; in qualified privilege, the occasion is, not privileged, until the defendant has shown how that occasion was used. It is not enough to have an interest or a duty in making a statement, the necessity of the existence of an interest of duty in making the statement complained of, must also be shown: (ii) In absolute privilege, the defendant gets absolute exemption from liability; in qualified privilege, the defendant gets a conditional exemption from liability: (iii) In absolute privilege, the defendant is exempted from liability even when there is malice on his part; in qualified privilege, the defendant is exempted from liability only when there is no make On his part: (iv) In absolute privilege, statements are protected in all circumstances, irrespective of the presence of good or bad motives; in qualified privilege, even after a case of qualified privilege has been established by the defendant, it may be met by the plaintiff proving in reply improper or evil motive on the part of the defendant, in which case the defence of qualified privilege vanishes, and the plaintiff succeeds; and, (v) In Absolute Privilege as well as in Qualified Privilege, the defendant has to prove his plea of privilege, but with this difference that in Absolute Privilege the defence is absolute and irrebuttable by plaintiff, whereas in Qualified Privilege the defence is not absolute but reburtable by the plaintiff. In the case in which it is sought to rely on a defence of qualified privilege, it is for the defendant to prove the facts and circumstances which establish that the occasion was privileged. If he does so, the burden of showing actual or express malice rests upon the plaintiff, and, if this is shown, communications made even on a privileged occasion, can no longer be regarded as privileged communications. If the Court rules that the occasion was not privileged, the plaintiff is not called upon to prove actual malice. In such a case the law implies malice from the falsity of the statement.

(60) A statement made in the performance of a duty is conditionally privileged if it is made in the performance of any legal or moral duty imposed upon the person making it, provided that the person to whom the statement is made has a corresponding interest or duty to receive it. This is not to say that both parties must have a duty, or both an interest: One may have an interest and the other a duty. A statement made in the protection of an interest, even when there is no duty to make the statement, is nevertheless privileged if it is made in the protection of some lawful interest of the person making it; for example, if it is made in the defence of his own property or reputation. But hare also there must be reciprocity. There must be a interest to be protected on one side and a duty to protect it on the other,

(61) In order, therefore, to make out a communication to be privileged the defendant should prove (a) that there was a privileged occasion, i.e., an occasion in which he had a duty or interest in making the communication to a person or persons who had a corresponding duty or interest to receive it; and, (b) that the communication was relevant or pertinent to the occasion. It is then for the plaintiff to prove malice of the defendant in making the statement; it is not enough fcr the defendant to prove that he honestly believed in the duty or interest in himself or the other person, or in the relevancy of what he said : it is necessary that the Court be satisfied that a reasonable person would have done so.

(62) As observed by Lord Buckmaster, L. C., in London. Association for Protection of Trade v. Greenlands Ltd., (1916) 2 AC 15, at p. 22, the circumstances that constitute a privileged occasion cannot be catalogued or rendered exact; new arrangements of business and new habits of life may create new occasions of privilege which would tall within the flexible language of the definition of privileged occasion, as laid down by Lord Atkinson in (1917) AC 309, H. L, and followed in Watt v. Longsdon, (1930) 1 KB 130, C.A.

(63) The above principles relating to an action for defamation have been taken from Halsburys Laws of England, Simonds Edition, Volume 24, Third Edition, 1958, Parts I and II; Salmond on. The Law of Torts, Twelfth Edition, 1957 : and Ramaswamy Iyers Law of Torts, Fifth Edition, 1857; and, the cases mentioned in them; and, also from Raj Kishore Prasads Principles on The Law of Torts, Chapter XIII, 1947 Edition.

(64) The above cardinal principles govern the plea of qualified privilege.

(65) In the light of these governing principles, I will now proceed to decide the third question raised, that, here, at best, it is a case of qualified privilege.

(66) In AIR 1924 All 535 [LQ/AllHC/1924/158] , referred to before, the Full Bench held that the written report lodged with the Police Officer, in that case, was a case of qualified privilege, and not of absolute privilege.

(67) The same view was taken by Blagden, J., in 47 Cal WN 627, and, by Sen J., in AIR 1928 All 31

6. Sen, J., observed, that if the defendant-pleads privilege, the onus lies upon him to prove the affirmative, and, if he succeeds in proving privilege, the onus of proving actual malice is then cast upon the plaintiff, for malice destroys privilege; but if the defendant has failed to prove that he made the statements on a privileged occasion honestly, the plaintiff is not called upon to prove actual maliee. His Lordship relied on the Full Bench decision of the same Court, AIR 1924 All 535 [LQ/AllHC/1924/158] , referred to earlier.

(68) It may be mentioned here that the decision of Walsh, J., in 77 Ind Cas 913 : (AIR 1923 All 167), relied upon, on behalf of the respondents, was later affirmed by the Full Bench in AIR 1924 All 535 [LQ/AllHC/1924/158] , to which Walsh, J. who was then Acting C. J., was also a party.

(69) In Khirod Ranjan Das v. Syed Mohammad Wasy, 19 Pat LT 186 : (AIR 1939 Pat 190), the libel, complained of, was contained in a report submitted by the appellant, who was a Traffic Inspector under the Railway, to the Traffic Manager, and the question was, whether this report had a. qualified privilege, Khaja Mohammad Noor, J., against whose decision the above Letters Patent appeal was filed and dismissed, held that it was a case of qualified privilege.

(70) In Kishan Lals case, AIR 1923 Oudh 247, referred to before, Kanhaiya Lal, J. C., held that to a complaint made to a Police officer a qualified privilege attached.

(71) In support of his above view, His Lordship relied on the following passages from Clerk and Lindsell an Torts and Odgers on Libel and Slander: "As a rule an action lies for the malicious publication of statements, which are false in fact and injurious to the character of another within certain limits and the law considers such publication as malicious unless 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. In the latter class of cases the occasion prevents the inference of malice which the law draws from unauthorised communications; and a qualified privilege attaches to the statements so made, if fairly warranted by any reasonable occasion or exigency and honestly made, or made in good faith for the common convenience and welfare of society. There are three elements necessary to make the defence of qualified privilege good, namely, the occasion must be fit, the matter must have reference to the occasion, and it must be published from right motives". (Clerk and Lindsell on Torts, 7th Edition, p. 580). "Indeed it is a duty which every one owes to society and to the State to assist in the investigation of any alleged misconduct, and to promote the detection of any crime. When it comes to the knowledge of any one that a crime has been committed, a duty is laid on him, as a citizen of the country, to state to the authorities what he knows respecting the commission of the crime; and if he states only what he knows and, honestly believes he cannot be subjected to an action of damages merely because it turns out that the person, as to whom he has given the information, is after all not guilty of the crime. For the sake of public justice, charges and communications, which would otherwise be slanderous, are protected, if bona fide made in the prosecution of any inquiry into a suspected crime." (Odgers on Libel and Slander, 5th Edition, p. 272). On the facts of that case, it was held that the occasion was clearly privileged, but it was a case of qualified privilege, and, that that privilege was not controverted by any evidence of malice.

(72) In 17 Pat LT 816 : (AIR 1936 Pat 309 [LQ/PatHC/1936/43] ), also it was held, as already indicated, that a complaint addressed to a Deputy Commissioner or to a Manager of Court of Wards, for making a private enquiry into the matter mentioned in it, was, at best, a case of qualified privilege.

(73) In view of the above authorities and principles, therefore, there is no doubt that the contention of Mr. Sinha that, here, at best, it was a case of qualified privilege is correct. I, accordingly, hold that the statements complained of enjoyed, at best, only a qualified privilege, and not an absolute privilege as rightly held by the trial Court.

(74) If the plea of privilege is open to the defendant, then, certainly as the plea o qualified privilege raises a mixed question of law and fact, the matter will have to be referred for further investigation, to the Court of appeal below, because, the onus, in such a case, in the first instance, is on the defendant to prove the affirmative that the privilege exists, and if he succeeds in proving privilege, then only the onus shifts and is cast on the plaintiff to prove malice, for malice destroys privilege.

(75) I would, therefore, now proceed to decide the first question raised, whether the plea of privilege was open to the defendants here

(76) After having held that the statements complained of did not enjoy an absolute privilege, but, at best, a qualified privilege, the next question which falls to be considered is, whether the plea of privilege was, at all, open to the defendant.

(77) It was urged by Mr. Sinha that the Courts should not have entertained the plea of privilege and gone into it and decided it, when it was not specifically pleaded in the written statement, or, raised in the issues at the trial. In support of his contention, Mr. Sinha relied on the decision of Wort, J., referred to earlier, in 17 Pat LT 816 : (AIR 1936 Pat 309 [LQ/PatHC/1936/43] ), in which it was held that where the question is one of a qualified privilege, in which case the onus is, on the defendant, in the first instance, to prove that the privilege exists, and, the question is not raised, the defendant cannot be allowed to raise it successfully at the appellate stage, as the plaintiff never had the opportunity of proving what he ought to have proved. His Lordship, Wort J., upheld the decision of the lower appellate Court, in that case, overruling the plea of absolute privilege raised at the appellate stage.

(78) In AIR 1939 Cal 477 [LQ/CalHC/1939/40] : ILR (1939) 1 Cal 574, already referred to, however, B. K. Mukherjea, J., as he then was in a separate but concurring judgment, while agreeing with S. K. Ghose, J., said that where the question raised before the lower appellate court was one of absolute privilege, no investigation of fresh facts was necessary, and, therefore, it cannot be said that the respondent was in any way taken by surprise, and, as such, the ap- pellant could be allowed to raise this plea before the lower appellate Court, even if the plea had not been taken in so many words in the written statement at the trial.

(79) In the above case, the defence substantially was that the defendant acted in good faith and that the allegations were true, but the plea of absolute privilege was raised at the first appellate stage. Both S. K. Ghosh and B. K. Mukherjee, JJ., however, observed that had it been a case of qualified privilege, raising a mixed question of law and fact, it might have been necessary to refer the matter for further investigation.

(80) In my opinion, the fact that, their Lordships, in the just mentioned case, held, on the facts of that case, that the plea of absolute privilege could be raised before the lower appellate Court, even when it was not pleaded in so many words in the written statement, cannot be taken as having laid down such a broad proposition of law, that the plea of absolute privilege can be raised at the first appellate stage, in all cases and under all circumstances, even when it is not specifically pleaded in the written statement or raised in the issues at the trial. The above decision must, therefore, be confined to the particular facts of that case, because, as observed by Lord Halsbury, in Quinn v. Leathern, (1901) AC 495, at p. 506 -

"that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed or qualified by the particular facts of the case in which such expressions are to be found."

In AIR 1924 All 535 [LQ/AllHC/1924/158] the Full Bench of the Allahabad High Court, held that, in a case of qualified privilege, where the defendant sets up, in defence, that the allegation is true to his own knowledge, the defence of qualified privilege becomes illogical and impossible, and it cannot he raised in such a case where the defendant pleads justification.

(81) Mr. Prasad, relying on the decision of Walsh, J., reported in 77 Ind Cas 913 : (AIR 1923 All 167), which was subsequently affirmed on Letters Patent Appeal by the Full Bench in AIR 1924 All 535 [LQ/AllHC/1924/158] , contended that the plea of privilege was not raised in the pleading, as the defendants pleaded in defence justification. I cannot understand, if that stand is correct, how can it be argued that although the plea of qualified privilege cannot he pleaded in the written statement, yet it can be raised at the trial or the appellate stage, without raising it in the pleading or the issues.

(82) It is not necessary, however, on the facts here, to decide in the present appeal, whether the defendant, when he pleades justification, can or cannot raise the defence of qualified privilege as observed in the above mentioned Full Bench case, I, however, express my cordial assent to the ratio decidendi of the Patna case and hold that where qualified privilege is not pleaded or raised in the issues at the trial, it should not be allowed to be raised at the trial or at the appellate stage.

(83) Here also, the defendant set up, in defence, the plea that the statements made by him to the Superintendent of Police were true to his belief and knowledge, and, that they were not false or defamatory, and, that seems to be the reason why the defendant made no effort in the written statement, or, in the issues at the trial, to rely upon the defence of privilege, either absolute or qualified.

(84) Here, it is not a case of absolute privilege, so that it could be said, if at all, that it did not require fresh investigation of facts. At best, here, if could be a case of qualified privilege, to prove which the initial onus was on the defendant, and, the defence of qualified privilege raises a mixed question of law and fact, which would require further investigation.

(85) Here, the trial court held that it was not a case of absolute privilege, but, the lower appellate court, in disagreement with it, held that it was. I have also agreed with the trial judge that it was not a case of absolute privilege, but, at best, it was a case of qualified privilege, as held by Wort, J., in the Patna case, and, by the Full Bench in the Allahabad case.

(86) In the words of Peafson, J., in Webb v. Times Publishing Co. Ltd., (1960) 2 All E. R. 789, Q. B. D., at p. 800, ".....there is no qualified privilege of a general or blanket character." The plea of qualified privilege, as such, in the present case, should have been pleaded specifically in the written statement, either as a substantial defence, or, as an alternative defence, and, also raised in the issues at the trial; because, in the case of a qualified privilege, the defendant has this limited protection that, provided he is not misusing the privileged occasion, the publication is covered by the privilege, but, if, however, he is malicious he has no defence on the ground of privilege. This not having been done, the defendant cannot now be allowed at the appellate stage to raise the defence of qualified privilege, and, as such, it is not necessary, in the present case, to refer the question of qualified privilege for further investigation to the Courts below.

(87) The above view, which I have taken, that the defendant not having put forward the plea of privilege in his pleading, cannot be allowed to raise the defence of qualified privilege, which is a mixed question of law and fact, is supported by three decisions of the Privy Council in the Official Trustee of Bengal v. Krishna Chunder Mazoomdar, ILR 12 Cal 239: 12 Ind App. 166; Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57 [LQ/PC/1929/93] (1) ; and, Hem Chand v. Pearey Lal, AIR 1942 PC

64. These decisions firmly establish, beyond doubt, that where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward. Venkatarama Aiyer, J., of the Supreme Court, also, in pronouncing the unanimous opinion of the Court, in State of Mysore v. Sri Venkataramana Devaru, AIR 1958 SC 255 [LQ/SC/1957/119] , on this question, at p. 263, observed that:

"The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his Case. And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of parties on the basis of that finding."

(88) For the reasons given above, therefore, I hold that the Courts below should not have entertained the plea of privilege when it was not pleaded in defence, in the written statement by the defendant, or, raised in the issues at the trial.

(89) I hold further that as it was not a case of absolute privilege, but, at best, a Case of qualified privilege, which raised a mixed question of law and fact, the initial onus to prove which was on the defendant, the Courts below would have been better advised if they had tried the issues as framed, the most important of which was Issue No. 4, at the trial.

(90) No doubt the learned Judge of the Court of appeal below has made some observations regarding the statement of the defendant against plaintiff 2, but, it appears to me that he has not specifically dealt with the question of justification, the only plea taken in defence by the defendant, or, with the question of damages, as it held that the statements complained of were absolutely privileged, and, therefore, the case must go back to the Court of appeal below to dispose of the two main issues of facts namely, (1) whether the defamatory statements complained of are true and, (2) If untrue, to what amount of damages, are the plaintiffs entitled

(91) In deciding the question of damages, the Court of appeal before will also consider the contention of the respondents, put forward before me, as to whether the plaintiffs, having jointly claimed damages of Rs. 100/-, could be awarded a decree for damages separately, if so found entitled to.

(92) In deciding the above material questions of fact, the Court of appeal below will do well to keep in view the observations of Lord God-dard, in Advocate Co. Ltd. v. Arthur Leslie Abraham, AIR 1946 PC 13, already referred to, that (a) in actions for defamation the function of the Court "is to say whether the words complained of are capable of a defamatory meaning and are cap" able of being defamatory of the plaintiff." Here, in India also it is the duty of the Court to say whether the statements complained of are in fact defamatory, and, defamatory of the plaintiff; and, (b) "In libel damage is presumed and no doubti punitive or, as they are sometimes called, vindicative damages may be given, but extravagance is not to be permitted.

(93) In view of my above decision, it is not now necessary to decide the fourth question, whether the plaintiffs have proved malice, at all, or, even to decide the fifth question the quantum of damages, here, at this stage, as it is being remitted to the Court of appeal for decision.

(94) These appeals, therefore, succeed, and, I set aside the judgment and decree of the Court of appeal below, and, remit these appeals to it for deciding the above mentioned questions, and, for disposing of the appeal of the defendant and the cross-objection of the plaintiffs, before it, in accordance with law in the light of this Judgment.

(95) Costs of these two appeals will abide the result of the appeal and the cross-objection in the Court of appeal below.