1. This was a suit for damages for defamation. The alleged defamation is contained in a-written document la the nature of a report or information lodged with a Police Officer in the course of the Police Officer's duty, in which the defendants charged the plaintiffs with assault and not, both of which are cognizable offences. The Police took no action on the report. They were not bound to do so. It was for them to decide whether or not the case was one on which they should charge the persons against whom the complaint was made. A complaint was eventually made before a Magistrate and dismissed. The plaintiffs nave brought this suit for damages.
2. The First Court held that the defendants had published the libel complained of; that it was untrue, and that Rs. 40 damages were an adequate compensation. The defendant's in substance pleaded justification. In paragraph 1 of the particular pleas, they said, the report was correct. They raised no plea of privilege. Both Courts have dismissed the suit on the ground that it is privileged. It would be much better if the inferior Courts would confine themselves to the dispute between the parties and not go out of their way to raise fancy points which are not raised by the parties themselves. I gather that both Courts are of opinion that the information was covered by absolute privilege. A recent Full Bench decision of this Court reported as Chunni Lal v. Narsingh Das 45 Ind. Cas. 540 : 16 A.L.J. 360 : 40 A. 341 (F.B.) held, that in questions of this kind the English Common aw must prevail, and that inasmuch as statements made in the course of judicial p race dings are absolutely privileged in England, they must be held to be absolutely privileged in India. 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. I am unable to follow the inference which the learned Judge draws from Section 125 of the Evidence Act.
3. There are two kinds of privileges, absolute privilege and qualified privilege. It is perhaps desirable to say a word about the latter, although in this particular case it does not help the defendants. In my opinion, without having heard and argument on the point a report made at a Police Station, though not within the rule of absolute privilege which covers judicial proceedings is prima faice privileged, that is to say, the person making it has a right to make it if he honestly believes it, and the person receiving it has a duty to receive it. But qualified privilege, as the term indicates, provides only a qualified protection and the person charged with the defamation must prove that he used the privilege honestly, honestly believing in the truth of what he said, or in other words, having reasonable grounds for making the statements and the onus of establishing that lies upon him, It is obvious that where the statement is made with reference to something in which the person making the complaint was himself involved as a party it is impossible for him to have had an honest belief in its truth if it is shown to be untrue. And, therefore, 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. That may be the reason why no effort was made in the written statement to rely upon it. And to my mind it cannot be raised in such a case as this where the defendants plead justification. I hold, as a matter of law, that there was no absolute privilege and that there was no ground for raising any question of qualified privilege, and the Courts would have been better advised in they had tried the issues as framed. The lower Appellate Court his not dealt with the question of justification or with the question of damages and the case must go back to the lower Appellate Court to dispose of the two main issues of fact, that is to say, Issues Nos. 2 and 3, namely, whether the defamatory statement is true or not, and if true, to what amount of damages is the plaintiff entitled. I set aside the decrees of both the Courts below and remit the case under Order XLI, Rule 23. Costs of this appeal will abide the result.