1. The present appeal unfolds a tragic tale of two friends showing that not only their initial friendship was fragile but after falling apart, one of them resorted to accusations shown to be false against the other. The case has its own sensitive facets both of fact and law. Those arise this way.
2. The appellant filed a suit in tort seeking to recover compensation for defamation against the defendant. The act of defamation is the report (Ex. 35) lodged with the Police Station, Ambernath, on 25th March 1972. That alleged that the plaintiff was distilling alcohol and liquor in his house and was thus indulging in commission of cognizable offences. This information given to the police has been found to be false to the knowledge of the maker of the report.
3. One the basis of the report, the Ambernath police proceeded to the house of the plaintiff and while the plaintiff was absent and only female-folks of the family were there, the police subjected the house to search and found nothing incriminating. Consequently, the police investigation was closed and the matter was dropped. It is an admitted position that in the conduct of the police search of the house of the plaintiff, the defendant actively associated himself, in that not only he was present along with the police party, by the acted as police panch. The allegations contained in the report leading to the house search were of such character that the same, according to the plaintiff, caused all sorts of embarrassment and he and his family were defamed thereby. All that affected the reputation of the plaintiff, lowering him in the eye of the members of the society. The plaintiff thereafter issued notice and eventually moved the Court by filing the suit for recovery of damages.
4. The defendant did not dispute the making of the report to the police nor the fact of the search and his association in that regard. As can be gathered, his main defence was that he had a strong suspicion with regard to the use of the premises by the plaintiff for the purposes complained of and on the basis of such suspicion, he moved the wheels of law. He being a citizen was duty bound to alert and to report to the police and, as such, was not liable in tort.
5. After hearing the evidence, the trial court found in favour of the plaintiff, in that the report at Ex. 35 was per se defamatory, for the said allegations and the further house, search did, and had the tendency to, lower the prestige of the plaintiff in the estimation of the ordinary and right -thinking members of the society. The Court further held that, initially the relations between the parties were quite close and friendly so much so that they shifted to Ambernath together and were residing in the house built by the plaintiff. With regard to the occupation of the house, quarrels started and with a view to evict the plaintiff, the defendant resorted to make such a false complaint to the police. As a fact, the defendant could have any reason to believe that the premises in the occupation of the plaintiff were being used for commission of any such crime. Even the case that the defendant could harbour any reasonable suspicion against the plaintiff with regard to distilling illegally alcohol or country liquor was found to be unfounded. Eventually, the Court recorded the finding that the report lodged was false malicious and defamatory and further that it was lodged with ulterior motives so as to evict the plaintiff from the house which the plaintiff was occupying.
6. This holding of the trial Court is based on the appreciation of evidence consisting of plaintiff Govind Walavalkar (P.W. 1) and his two witnesses Sahebrao (P.W. 2) and Shantaram (P.W. 3)and the evidence of defendant Pandharinath and his other witnesses Suhas (D.W. 2), Indira (D. W. 3) and Pratibha (D.W. 4). After going through their evidence, it is amply proved that these findings are well-merited. Maximum that can be said in favor of the testimony of Pandharinath and Pratibha, the husband and wife, is that they were getting some sort of alcoholic smell from the premises in the occupation of the plaintiff. It is indeed difficult, even remotely, to find support for the assertion that they could have suspicion against the plaintiff with regard to the alleged illicit distillation of liquor, particularly in the background of their association and friendly relations until the quarrels started.
7. After holding so, the trial Court refused to make the decree even after quantifying the damages at Rs. 4,000/-solely on the ground that the defendant's action could be protected by the doctrine of absolute privilege
8. Now, it is indeed difficult to uphold the application of the principle of absolute privilege, for, both upon the facts and the law in this regard, the judgment under appeal is erroneous.
9. As against the tort of defamation, privilege is a matte if defence. It may be styled as a protective umbrella against the charge that is based on slander or defamation. But for upholding the defence on its basis, it must be clearly shown that the person who seeks to have the protection thereof was so positioned in relation to the facts in issue that he could be said to be jjjustified in saying writing the matter which amounts to defamation of the other person. Once the occasion and the position of the person are so established by reason of privilege, no action in tort lies for defamation.
10. While considering such assertions, the Court has to remember that privilege is not a universal defence available in matters of defamation, but is a mere specie. Certain central questions for judicial consideration should initially be raised before privilege is made available to the defence. What was the occasion and how the parties were positioned to it Was the occasion such that which, in furtherance of public policy and convenience, should receive judicial protection by reason of necessity to safeguard its free and unaffected identity? In other words, what is the impact of the character of the occasion upon the matters that caused the injury? Lastly, would the necessities of public policy not be satisfied by extending qualified privilege Once these questions are satisfactorily appreciated and applied to the given set of facts, the operative field of privilege would become clear. If occasions were such that they required total protection, absolute privilege would be available, but in other cases, depending upon the facts, the field would be covered by qualified privilege. In the former, notwithstanding malice, the action would not succeed, but in the latter, if malice is evident or established, damages would be decreed against the defendant.
11. Primarily, therefore, the position of the person and the occasion of the making defamatory statements come in issues. Now, in the present case, the evidence does not suggest that there was any occasion for the defendant so as to make the report at Ex. 35, notwithstanding the duty of the citizen to report matters of cognizable crimes to the police. As stated earlier, maximum the defence has asserted was the doubt which was harboured by reasons of the smell, but the evidence on this aspect too is highly improbable so as to sugges any possibility of such a suspicion. It is easy and handy to assert in this way while answering charge of defamation the defence evidence thus, shows that there could be no occasion for the defendant to rush to the police so as to lodge Ex. 35, nor can it be said that with regard to the alleged doubt, the defendant was so positioned that he could be jjjjustified in saying the facts that eventually amount to defamation. As the matter stands, therefore, the plea of privilege can hardly be said to be available to the defendant.
12. Even assuming that by reason of the alleged alcoholic smell the defendant had some occasion, and as a duty bound citizen, to report the matter to the police, the next question is whether is he absolutely privileged in making the defamatory accusations? The trial Court extended that privilege in spite of the holding that the defamatory allegations were far from true and were so made with ulterior motives. The plea prevailed with the trial Court mainly on the basis of the decision of the Rajasthan High Court in Lachhman v. Pyarchand .
13. Conceptually, privilege is a matter of defence permitted on the ground of public policy and public convenience so as to assure everyone that he would be free from responsibility for the publication of defamatory words, provided there exists an occasion for making the same. Absolute privilege is restricted to certain recognized occasions. It is not generally available. Even with regard to qualified privilege, occasion does play an important part. The law with regard to absolute privilege extending to the enumeration of occasions is not covered by any strait-jacket formula, but is ever in the process of evolution. By reason of the necessity to protect persons from actions in tort, juridically such occasions have been identified for affording protection. These are classified in several ways, but can be broadly stated to be one concerning judicial proceedings, quasi-judicial proceedings, official communications by one officer of the State to another, proceedings of the legislative bodies, fair and accurate publication of reports of judicial and parliamentary proceedings, communications between persons concerned in judicial proceedings, like client and lawyer or client and solicitor. With regard to the extension of absolute privilege in these matters and upon these occasions, the underlying principle that attracts the privilege is the necessary on the ground of public policy and convenience to keep free the flow of information and assure and safeguard freedom of expression.
14. The residuary field of privilege which has also the basis of public policy and public convenience is governed by qualified privilege. That too has clear relevance to the occasion and is not a mere matter of arbitrary whim or choice of the person making the allegations. Occasions should be such where such qualified privilege is being claimed on the ground of public policy and convenience. Once the occasions are established, qualified privilege will extend to the statements which are per se defamatory and which are in fact untrue, but would be protected from the legal liability in torts. (See Watson v. M'Ewan, 1905 AC 480; Beresford v. White, (1914) 30 TLR 591, Watt v. Longsdon, (1930) 1 KB 130; and Lincoln v. Daniels, (1962) 1 QB 237. Upon such occasions, the person is permitted to state what he believes to be true, provided the statements are made honestly without any indirect or improper motive. The rule in this regard is based on general welfare of the society and is only available on the ground of public policy, provided the honesty of the maker of the defamatory statement is not in doubt. No doubt, reports of crime upon successful investigation lead to initiation of judicial proceedings, but from that it cannot be said that in all matters, complaints lodged with the Police are necessarily a step in an intended judicial proceeding. For it is equally possible that no judicial proceeding may ensue upon such a complaint to the police, the same being false and imaginary. Such a complaint is to the non-judicial authority and would rule out the extension of absolute privilege. The matter would fall in the arena of qualified privilege ordinarily, unless cognizance is taken by the Court of such report. However, in appropriate case, a question may arise when, after such a complaint, the same is lodged with the Court and did form part judicial proceedings. But that would be governed by different considerations. For the purposes of the present appeal, it is enough to observe that the character of the statement made to the police even under the Code of Criminal Procedure, is not the one to which privilege can be extended. The position of the police officer is not one of official confidence, (see Hittu Bansi v. Sheolal Dinaji, ; L. Subbayya v. Sub-Judge, Vijayawada : AIR1951Mad864a (2); and Haji Ahmad v. State : AIR1960All623 , nor the inquiry is either quasi-judicial or judicial. It is for all purposes investigatory by reason of the authority conferred by law upon the police to investigate into the same. Once that be the character of the police complaint, the matter is clear. Investigative proceedings do nor furnish occasions for claiming absolute privilege. This position of law has been but beyond doubt even in England by the decision in Lincoln v. Daniels, (1962) 1 QB 237. There the Court was concerned with a defamatory statement contained in the complaint to the Bar-Council which had no quasi-judicial or judicial authority and had at the most investigative authority. In that case, all the learned Lord Justices were of the view that only qualified privilege could be extended. Devlin, L. J., after considering the decisions of the English Courts, has observed:-
'The function of the Bar Council was to investigate the matter and take any action that they thought proper. The same sort of description would apply to a complaint made at a police station or to a letter addressed to the Director of Public Prosecutions. Such 'Statements in aid of justice' are said, in Gatley on Libel and Slander (5th ed., P. 210) to attract qualified privilege, and authority is cited for the proposition, though it does not appear that the question whether the privilege should be absolute or qualified has ever been specifically considered.'
Thus, the distinction appears to have been made between the steps in the judicial proceedings and the statements given 'in aid of justice'. Statements made to the investigative machinery established by law, like the police, would, ordinarily, be the statements in aid of justice and nothing more. They could not be elevated to the status of the statements made as a step in the administration of justice itself. In the holding of Danckwerts, L. J. in Daniels's case, the position is further made clear that since the Bar Council was no more than an investigating body, without any judicial or quasi-judicial function or disciplinary powers, the statements contained in the complaint to the Bar Council would attract qualified privilege and not absolute privilege (p. 269, supra). The position of the police in India would be the same with regard to the complaint made and entertained for the offences having reference to the Prohibition Act.
15. The decision of the Rajasthan High Court in Lachhman v. Pyarchand , which appears to take the view that the report made to the police officer is a preliminary step towards moving the proper Court of law and, therefore, protected by absolute privilege, with respect, does not appear to lay down correct position of law. The decision mainly follows the English case in Watt v. Longsdon, (1930) 1 KB 130, which has been considered in extenso in England in Lincoln v. Daniels (supra) by the Lord Justices, all of whom ruled that the statements contained in the communication to a body like Bar Council, having no judicial authority, could not be protected by absolute privilege.
16. As far as this Court is concerned, in Maroti Sadashiv v. Godubai Narayanrao : AIR1959Bom443 , absolute privilege was not extended to the statements made before the police officer in the course of investigation, following the earlier decision of the Division Bench of this Court in Gangappagouda v. Basayya,. : AIR1943Bom167 . That also appears to be the position of the decision of the Patna High Court in Surendra Nath v. Bageshwari Pd. : AIR1961Pat164 , where to the statement contained in the complaint to the Superintendent of Police qualified privilege was extended, and the decision in T. Ayyangar v. K.S.Ayyangar : AIR1957Mad756 , which is the case concerned the petition to the Deputy Inspector General of Police, where the plea of absolute privilege was negatived. Further, as far as the cases of this Court are concerned, the doctrine of absolute and qualified privilege has been considered in Keshavlal v. Bai Girija, (1899) 1 Bom LR 478, by observing that the same would be determined by the occasion, the relations and duty arising therefrom between the parties and the manner and circumstances under which the communication ws made. In respect of qualified privilege, it is available when the occasion is lawful, and is limited by the necessities of the case, if good faith is proved, but not where the express malice or mala-fides are established. Narasimha Shankar v. Balvant Lakshman, (1903) 5 Bom LR 664, is distinguishable as the case of privilege extended to a report by Government officer to the superior officer. Similarly, qualified privilege was extended to the statements made to the superior officer, though those statements were such which were not intended to be made in a Court of Justice nor made as any step or at any stage of the judicial proceedings, in the case of Jusab Tharia v. G. S. Morrison : (1913)15BOMLR249 . These decisions of this Court clearly go to show that absolute privilege is not available unless the occasion is clearly identified for extension of such absolute privilege. By reason of official duty or by reason of any other public duty if the occasion arises, then the matter may be governed by qualified privilege. Complaints or statements made to the police, which do not form part of any judicial proceedings and particularly when matters do not go to Court, would not thus be governed by absolute privilege. Maximum that can be made available is the qualified privilege.
17. As in the present case the defendant is shown to have been actuated by ulterior motives, even the qualified privilege would not protect the defence.
18. That being the position, the trial Court was in error in dismissing the suit for damages.
19. Both the sides did not question the quantum and left the matter to the Court. In fact, at the conclusion of the hearing, a cheque for a sum of Rs. 4,000/-, inclusive of costs, was accepted on behalf of the appellant in full and final settlement.
20. In the result, the appeal is allowed and is decreed in the sum of Rs.4,000/-, inclusive of costs, which such has been accepted by the appellant-plaintiff in full and final settlement of his claim.
21. Appeal allowed.