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Lachhman Vs. Pyarchand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 31 of 1954
Judge
Reported inAIR1959Raj169
ActsCode of Civil Procedure (CPC) - Sections 35A; Constitution of India - Article 105; Indian Penal Code (IPC) - Sections 95, 182, 379 and 499; Code of Criminal Procedure (CrPC) - Sections 44 and 107
AppellantLachhman
RespondentPyarchand and ors.
Appellant Advocate U.M. Trivedi, Adv.
Respondent Advocate B.B. Desai, Adv.
DispositionAppeal dismissed
Cases ReferredHariram v. B. P. Sood
Excerpt:
- - this piqued the jagirdar and the friends of the thikana like the plaintiff. the learned judge also came to the conclusion that the plaintiff was a man of questionable status and reputation and that he had entirely failed to prove that no had sustained the quantity of damagas claimed by him. the question at once arises what is an absolute privilege and whether a report made by a person to the police officer in circumstances like those of the present case can legitimately fall within the protection of this defence in a civil suit for defamation. it is indeed well established that the plea of absolute privilege means that by a sort of legal fiction the law, owing to compelling considerations of public policy invests statements made upon certain occasions with a special protection so.....i.n. modi, j. 1. this is a regular first appeal by the plaintiff lachhman in a suit for damages for defamation, which has been dismissed by the trial court. 2. the material facts, out of which this appeal arises, lie in a short compass and may be briefly stated as follows. the parties belong to a village named kurawad, district udaipur. the plaintiff is a panch of the gram panchayat kura-wad. the respondents are 28 in number and of these about half the number are mahajans and the rest belong to various other communities. the plaintiff's case was that on 18-3-1952, the defendant made a report (ex. p.1) to the station house officer, police thana kurawad, which translated in english reads as follows : 'it is prayed that the undermentioned 'goondas' are misbehaving and harassing us (the.....
Judgment:

I.N. Modi, J.

1. This is a regular first appeal by the plaintiff Lachhman in a suit for damages for defamation, which has been dismissed by the trial Court.

2. The material facts, out of which this appeal arises, lie in a short compass and may be briefly stated as follows. The parties belong to a village named Kurawad, District Udaipur. The plaintiff is a Panch of the Gram Panchayat Kura-wad. The respondents are 28 in number and of these about half the number are Mahajans and the rest belong to various other communities. The plaintiff's case was that on 18-3-1952, the defendant made a report (Ex. P.1) to the Station House Officer, police thana Kurawad, which translated in English reads as follows :

'It is prayed that the undermentioned 'Goondas' are misbehaving and harassing us (the applicants). On Chait Vadi 3rd and 5th they formed themselves into an assemblage of a number of persons of which they were the leaders and they have treated us very shabbily information whereof has been given to the police from time to time. Our shops have had to be closed. Therefore, please make adequate arrangements, otherwise our life and property is in serious danger. Urgent action is solicited.'

The name of the plaintiff was mentioned as one of the seven persons against whom the aforesaid complaint was made. The plaintiffs case further was that the defendants had made the above-mentioned complaint to the Sub-Inspector falsely and maliciously with intent to disgrace the former and lower him in the estimation of the public. Consequently, the plaintiff instituted the present suit in the court of the Civil Judge, Udaipur, for damages amounting to Rs. 10,000/-. These damages appear' to have been claimed not as special damages but generally.

3. The defendants respondents with some variance (which is not material for the purposes of the present appeal) admitted that they had made the report to the Station House Officer, Kurawad. But they contended that they had made the said report out of feelings of self-protection, and with a view to see that adequate arrangements are made for the maintenance of public peace and tranquility in their village.

It is in evidence that there was a commotion in this village in the month of March, 1952, on the occasion of the Holi festival. It is admitted that some ancestor of the then Jagirdar of Kurawad had died on the Holi day a few years ago and, therefore the usual festivities which take place on Falgun sudi 15 (which is, the day of the Holi), and the following day are postponed in this village to two to three days and the customary festivities are observed on Chait Vadi 3 and a day or two following.

It is also in evidence that the defendants who are mostly Mahajans and their friends had observed the Holi ceremonies on Falgun Sudi 15 and Chait Vadi 1st, that is the 11th and the 12th March, 1952, regardless of the aforesaid practice. This piqued the Jagirdar and the friends of the Thikana like the plaintiff. Consequently, the case of the defendants as disclosed by their evidence is that the plaintiff and certain other persons who had been named by them in the report Ex. P-1 had taken out procession on Chait Vadi 3 and Chait Vadi 5th during which they carried the effigies of the defendants Chhaganlal and Pyarchand and gave them shoe-beating while the procession was being carried in the village.

The result was that feelings ran very high in the village and there was rioting, and the Mahajans had to close down their shops, and it was in these circumstances that the report Ex. P-1 came to be made to the police. The defendants, therefore, contended that they had no desire to defame the plaintiff or anybody else but that what they had done was in protection of their own interests and for the preservation of peace and tranquillity in their village.

The defendants also pleaded that the police had prosecuted six out of the seven persons against whom they had made the complaint, and among these six, the plaintiff was one of the persons who had been challaned. The defendants denied that they had any malice in making the complaint which they did to the police and they prayed that the plaintiff had filed this suit merely to harass them, and, therefore, they also prayed for grant of special damages to them under Sec, 35-A of the C. P. C.

4. The learned Civil Judge, after recording the evidence of the parties, dismissed the plaintiffs suit The material findings arrived at by the learned Judge may be shortly stated as follows. He held in the first place that the defendants had not given publicity to the contents of Ex. P-1 at any place, and, therefore, there was no publication of the alleged defamatory matter. The learned Judge further held that Ex. P-1 was absolutely privileged inasmuch as the defendants had made the report in question to the police for reasons of self-protection.

As to the background against which this complaint happened to be made referred to above, the finding of the learned Judge appears to be that the peace and tranquillity in village Kurawad was greatly endangered as a result of the doings of the plaintiff and his companions, and the learned Judge arrived at this finding chiefly relying on the evidence of D. W. Bothnia, a Sar Panch of the Kurawad Cram Panchayat, from 1945 to 1952.

The learned Judge also appears to have believed that as a result of all this, the Superintendent of Police himself came over to the village and that armed police force was posted there for some time, and that the plaintiff and his associates were prosecuted for rioting and some other offences and cases relating thereto were pending at the time the learned Judge decided this case.

In this view of the matter, he came to the conclusion that the contents of Ex, P-1 were absolutely privileged and no action could lie with respect to them in a civil Court. The learned Judge also came to the conclusion that the plaintiff was a man of questionable status and reputation and that he had entirely failed to prove that no had sustained the quantity of damagas claimed by him. In the result, the learned Judge dismissed the plaintiff's suit. The present appeal has been filed by the plaintiff from the aforesaid judgment and decree.

5. It is contended by learned Counsel for the plaintiff that the findings of the learned Judge of the trial Court on the question of absolute privilege and as to want of publication are wrong. Learned Counsel further contended that if this Court came to the conclusion that it was a case of a qualified privilege, then an issue as to whether the statement in question was actuated by malice or otherwise should be framed and the case remanded to the trial court for a finding on this-issue, and, thereafter, the whole case should be decided afresh.

6. I shall take up the question of absolute privilege first. The question at once arises what is an absolute privilege and whether a report made by a person to the police officer in circumstances like those of the present case can legitimately fall within the protection of this defence in a civil suit for defamation. A number of judicial decisions were cited at the bar in this connection; but I consider it unnecessary to refer to them in particular.

It is indeed well established that the plea of absolute privilege means that by a sort of legal fiction the law, owing to compelling considerations of public policy invests statements made upon certain occasions with a special protection so that all statements made on such occasions, even though they may be defamatory, cannot be made the subject-matter of litigation in courts of law and no action for defamation will lie in respect of them.

Thus no member of Parliament in our country can be made liable for defamation in respect of anything said by him in Parliament or in any committee thereof. (See Article 105 of the Constitution) The same privilege is enjoyed by a member of the Legislature of a State in respect of anything said by him in the Legislature of the State or any committee thereof. (See Article 194 of the Constitution).

It may also be pointed out in passing that statements contained in authorised reports of proceedings in the Parliament or the Assemblies of the various States are also absolutely privileged. Similarly, no action for defamation can lie against Judges, counsel, witnesses or parties, for words written or spoken by them in the course of any proceeding before any court recognised by law, and this would be so even if the words may have been written or spoken maliciously or from personal ill-will or anger. Thus, their Lordships of the Privy Council observed in Babu Ganesh Dutt Singh v. Mugneeram Chowdhry, 17 Suth WR 283 as follows:

'Their Lordships hold this maxim which certainly has been recognized by all the Courts of this country to be one based upon principles of public policy. The ground of it is this -- that it, concerns the public and the administration of justice that witnesses giving their evidence on oath in a Court of Justice should not have before' their eyes the fear of being harassed by suits for damages but that the only penalty which they should incur if they give evidence, falsely should be an indictment for perjury.'

Again, as pointed out by Channell, J. in Bottomley v. Brougham, 1908-1 KB 584, the doctrine of absolute privilege is based on the fact that it is not desirable in the public interest to inquire whether the words or acts of certain persons are malicious or not, and the learned Judge preferred to call it a right of the public, the theory being public advantage almost amounting to public necessity. The true reason of this rule is not that the law gives a privilege to certain people to be malicious but public interest demands that persons in certain situations should be exempt from all inquiries as to malice. It may also be pointed out in this connection that it is not merely in respect of a hearing in open court that there is an absolute privilege but also with regard to every step taken in the conduct of a legal proceeding.

Thus, the privilege of witnesses and parties in this connection also extends to statements made by them in affidavits, pleadings and other documents which form part of the procedure of the inquiry as well as to statements made by them to a solicitor or an advocate when he is engaged in preparing brief for the purpose of such proceedings.

7. This brings me to the case of Watson v. Jones, 1905 A.C. 480 which was decided by the House of Lords. The facts of this case were briefly these. Mrs. J. was desirous of obtaining a separation from her husband on the ground of cruelty, and so she sent for P. a medical man, to examine her as regards ill usage by her husband. Mrs. J. thereafter brought an action for separation against her husband which was decided against her. During this action, P along with certain other doctors made an examination of Mrs. J. on her husband's behalf.

P then reported the result of this examination and the nature of evidence which he was prepared to give to the husband and his solicitors. He also gave information as to what he had seen of Mrs. J in 1901 when he examined her on the first occasion. While P was examined as a witness for the husband, he deposed to certain matters which he had come to know of on the occasion of his previous examination of Mrs. J.

On this disclosure having been made which was felt by Mrs. J to be harmful to her reputation, she filed an action for slander against P on the ground that P should not have made the disclosure he did to the solicitors of her husband or to the latter, and claimed damages. I wish respectfully to quote the observations of the Earl of Halsbury, which are highly instructive:

'It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice -- namely, the preliminary examination of witnesses to find out what they can prove.

It may be that to some extent it seems to impose, a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony......

My Lords, the hardship to which I refer is this: that although when a witness does give evidence which is wilfully false you can indict him for perjury, on the other hand, if he makes the same statement not upon oath to a person taking down the evidence he is prepared to give, it seems to be very difficult to devise anything that would bring him to justice for that false statement.

The answer of course, dealing with it as a matter of convenience and indeed of necessity for the administration of justice, I suppose, is this: unless, he does give evidence in a court of justice in which case he can be indicted for perjury if his evidence is wilfully false, nobody knows anything about it -- it slumbers, I suppose, in the office of the solicitor, and nobody hears or cares anything about it. Practically, I think that would be the answer.

But whether that be a good answer or not, what seems to me to be an over-whelming consideration in the determination of this case is that a witness must be protected for his preliminary statement or he has no protection at all, and that there is that protection established is, as I have already said, beyond all possibility of doubt.'

In this view of the matter, it was held that the preliminary examination of a witness by a solicitor was within the same privilege as that which he would have if he had said the same thing in his sworn testimony in court and the plaintiff's action was dismissed.

8. The question before me for decision is somewhat different and more difficult inasmuch as the statement which is assailed here was not one which was made in the course of a judicial proceeding but was made to a police officer.

9. Before I address myself to that question, I wish to say two things. Firstly that in the present case, I am only concerned with a civil remedy or the right to redress in a civil action and not with a remedy for defamation as a criminal offence. It appears to me that there has been a divergence of judicial opinion in the Indian courts as to whether the civil and the criminal law and procedure in this respect do not coincide.

I propose, therefore, to restrict myself to the consideration of the question of privilege from the view point of a civil wrong and not as a defence under Section 499 of the Indian Penal Code. In the second place, it seems to me to be well established that a complaint made to a Magistrate is absolutely privileged. See Muthuswami Naidu v. Emperor, 14 Ind Cas 757: (AIR 1914 Mad 472), Golap Jan v. Bholanath Khettry, ILR 38 Cal 880 and Chunni Lal v. Narsingh Das, ILR 40 All 341: (AIR 1918 All 69) (FB).

10. Now, a case of a report to a police Officer arose in In re, Kakumara Anjaneyalu, 35 Ind Cas 833 : (AIR 1917 Mad 600), and it was held that though a complaint to a Magistrate was absolutely privileged, that principle could not be extended to a complaint to a police constable, But apart from that the case contains no further reasoning.

11. Such a case also arose in Majju v. Lachman Prasad, AIR 1924 All 535, and it was held by a Full Bench that a report made at a police station was not within the rule of absolute privilege but might be covered by a qualified privilege. The judgment in this case, however, contains - very little discussion, and, with great respect, it was more or less assumed that a report made at a police station could not possibly be governed by absolute privilege.

12. In Sajjad Husain v. Mul Chand, AIR 1926 Oudh. 18, it was also held that a report of a crime to the police carried with it merely a qualified privilege with regard to defamation. This judgment also does not contain any reasoning and more or less seems to have followed the decision of the Allahabad High Court, AIR 1924 All 535 referred to above.

13. The next case to which reference might be made is Sanjivi Reddi v. Koneri Reddi, AIR 1926 Mad 521. In this case the defendant had presented a petition to a Magistrate praying that the plaintiffs and some others should he bound over under Section 107, Cr. P. C. The Magistrate sent the petition to the police for inquiry and report. The police reported that there was no foundation for the allegations mentioned in the petition, whereupon the petition was dismissed.

The plaintiffs then brought a civil suit for defamation. The question arose whether the statements made by the defendant to the police officer were absolutely privileged. Coutts-Trotter, C. J. relying on 1905 AC 480 referred to above held that all statements made by a potential witness as a preliminary to going into the witness-box are equally privileged with the statements made when actually in the box in Court.

14. In Madhab Chandra v. Nirod Chandra, AIR 1939 Cal 477, the question arose whether a report made by the defendants to an officer of the police that a certain widow had given birth to a child and the plaintiff was responsible for her illicit pregnancy and that the child had been killed was absolutely privileged. It was held that in a sense statements made to the police appeared to be on stronger ground than statements made to the solicitor as reported in (1905) AC 480, the reason being that the statement made to a solicitor may or may not be followed up by judicial proceeding depending on the option of the party consulting such solicitor; but the party lodging information before the police has no option and the police are empowered to go on with the matter and investigate it.

The other learned Judge, B. K. Mukherjea, J., as he then was, concurred in this view and was prepared to hold that a statement made by a potential witness as a preliminary to going into the witness-box was as much privileged as a statement actually made in the witness-box.

15. Again in Vattappa Kone v. Muthuka-ruppan, AIR 1941 Mad 538, the question arose whether a complaint to a police officer as being a statement which the complainant would be required if called upon to do so to substantiate later on oath was absolutely privileged, and it was held that it was.

16. I should then like to refer to Joseph Mayr v. C. VV. Rivaz, ILR (1943) 1 Cal 250, on which learned Counsel for the plaintiff laid very great stress in support of his argument. In this case the defendant wrote to the Commissioner of Police, Calcutta, a letter containing passages which were admittedly defamatory of the plaintiff. It also appeared that the Commissioner of Police was or might have been reasonably thought to be a proper person, who could have redressed his grievances, (if the grievances of the defendant were genuine) and to whom the complaint might have been made.

The learned single Judge (Blagden, J.) held that the defendant was not protected by absolute privilege even though it was accepted that if the grievances of the defendant were genuine, it was his moral, if not legal, duty to inform some proper public authority such as the Commissioner of Police about them. The attention of the learned single Judge was drawn to two Bench decisions of the Calcutta High Court in Brojonath Roy v. Kishen Loll Roy, 5 Suth WR 282 and ILR (1939) 1 Cal 574 : (AIR 1939 Cal 477).

With all respect, the learned Judge seems to have thought that these two decisions gave contradictory answers, which, speaking for myself, I am unable to see, All that was said in Brojonath Roy's case, 5 Suth WR 282 was that

''every man who considers that a criminal of-fence has been committed against him has a right to make a complaint before the police or before a Magistrate, and it is not because he fails in proving the charge, made by him that he is liable to an action for damages for defamation.' It was further said that

'in making such a complaint, the presumptiorr is that he is pursuing the remedy given him by the law properly and in a legal manner, and he does no wrong and is not liable to suits except for making such a charge falsely and maliciously.' The learned Judges do not appear to me to have held that a report made to the police would only be covered by a qualified privilege. So far as the other Calcutta case is concerned, viz., ILR (1939) 1 Cal 574 : (AIR 1939 Cal 477), it definitely held against the view which the learned Judge was prepared to accept, and I entirelv fail to understand how the later decision of the Division Bench could be brushed aside by merely saying that the same was not binding on him.

The learned Judge also seems to have tried to distinguish Watson's case, 1905 AC 480, from. Madhao Chandra's case, ILR (1939) 1 Cal 574 : (AIR 1939 Cal 477), by saying that the former was not a case of a witness claiming protection for a statement which he repeated in a subsequent judicial proceeding, for the proceeding was pending at the publication and it was a case of a witness, pure and simple, and not of a partv who in fact gave evidence.

The distinction, however, in my humble judgment, is without any real difference; firstly, because, the decision of the House of Lords in Watson's case, T905 AC 480 was not based on any such narrow ground as the learned Judge seems to have thought but was really founded on overwhelming considerations of public policy which would apply equally to a witness as to a party seeking redress.

Secondly, I am unable to understand what difference it makes in principle where the protection is claimed by a witness as distinguished from a case where it is claimed by a party on the reasoning of the House of Lords in Watson's case, 1905 AC 480. In this view of the matter, with very great respect I find myself unable to agree with the reasoning of Blagden, J. in the case discussed above.

17. From a review of the above discussion it would appear that there is some divergence of judicial opinion in the Indian High Courts as to whether a statement made by a party in his report or complaint to the police is absolutely privileged or not. It appears to me that the correct view is to hold that it is absolutely privileged. This view may foe questioned as being unduly generous, for example, where a complaint to the police has been made absolutely falsely and maliciously and without any rhyme or reason.

On a careful and anxious consideration of the whole matter, however, I am disposed to hold that far greater mischief would be caused by laying such complaints open to a civil action for defamation than by affording it absolute privilege. Again, speaking on principle, if a complaint made to a Magistrate is accepted as properly falling within the doctrine of absolute privilege, and on that point judicial authority is firm and unanimous, I do not see any valid reason why a report in a cognizable case which the police are empowere; by law to investigate should be placed on a different footing.

In either case, the object of the aggrieved party is to seek justice. Again, in either case, the same considerations of public policy do apply in that such party must be left free and unfettered to seek his remedy and to state what he considers to be the fact without fear of having to be sued in damages for defamation.

18. I may, here, at the risk of repetition, quote the reason of the rule of absolute privilege as stated by Folkard in his book on the Law of Slander and Libel at pp. 88 and 89 :

'And the reason is founded on the principle that 'the law will rather suffer a private mischief than a public inconvenience'; and that persons engaged in the administration of the law, and those who seek justice in respect of wrongs or injuries suffered or give evidence as to any such, or make defence thereto, may not be deterred from so doing by the fear of being harassed by actions or prosecutions for defamation in respect thereof.

And accordingly the law, without regard to the question of intention and on grounds of obvious policy, repels the claim to damages in respect of any publication, whether oral or written, made, in the ordinary course of a judicial proceeding civil or criminal. And this rule applies to Judges, juries, witnesses, suitors and parties, in respect of anything stated by them in the course of any such proceeding.'

I am inclined to hold that the same considerations should foe held to be applicable to a report made to a police officer by an aggrieved party who, after all, files such a report only as a preliminary to its being adjudicated upon in a proper court of law and which is thus nothing but a preliminary step thereto, and where such a party has made a false report against another, the latter is free to seek his redress in the matter by a suit-able proceeding under Section 182, I. P. C., which clearly provides for prosecution for and punishment of a person for giving to a public servant any false information intending thereby to cause injury to him.

19. Before proceeding further, I may briefly notice the contention that the defendants had no need or business to make the complaint which they did to the Police Officer, and that if any action under Section 107 of the Code of Criminal Procedure was intended, an application should have been made to the Magistrate concerned.

I have carefully considered this contention, and I think that it is entirely baseless. The report in question was made to the police not merely as a preventive measure but also to seek redress for the crimes that had already been committed. According to the defendants, and I propose to deal with this point a little later in some detail, the plaintiff and his associates had committed rioting and certain other offences., and it can by no means be argued that an offence of rioting, was not a cognizable offence or that the police could not have taken cognizance of it.

In fact, they were the proper authority which could have been approached by the complainants for suitable redress. I may in this connection also draw attention to Section 44 of the Criminal Procedure Code which clearly provides that it is the duty of every person who is aware inter alia of the commission of, or of the intention of any other person to commit any offence punishable under Section 147 or 436 to give information to the nearest Magistrate or the police-Officer of such commission or intention.

The defendants were, therefore, plainly, justified in making the complaint which they did, and the Sub-Inspector of Police to whom the report had been made was equally plainly authorised to deal with the matter which was the subject-matter of the complaint. I, therefore, overrule this contention.

20. Having regard to all these considerations, I have arrived at the conclusion that the report made by the defendants to the police in the pre-sent case was absolutely privileged, and the doctrine of absolute privilege forbids any inquiry into the motives of the persons who made the complaint. I hold accordingly.

21. Even if I were to hold for the sake of argument that the report Ex. P-1 in this case was not absolutely privileged but carried only a qualified privilege with it, (and this is indeed not denied by learned Counsel for the plaintiff appellant) I am of opinion that there is ample material on this record which has been believed by the trial Court to show that the report was warranted by the occasion which prompted it.

There is a volume of evidence in the statements of the defence witnesses D.W.1 Biharilal D.W.2 Chhaganlal, D.W. Roopchand. D.W.4 Bothlal and D.W.5 Jodhraji and D.W.6 Kaloo to show that a procession was taken out on Chait Vadi 3 and Chait Vadi 5, during which the effigies of the defendants Chhaganlal and Pyarchand were carried by a large number of people, and these were shoe beaten throughout the course of the procession, that the plaintiff was one of the important leaders of the processionists and that rioting ensued during which a shop of Mangilal Mahajan was looted with the result that the Bazar had to be closed for about three days and the police arrived, and that there was a good deal of insecurity of life and property in the village in those days.

No cross-examination, worth the name, was directed against these witnesses on the side of the plaintiff. It may also be pointed out in this connection that the plaintiff himself admitted that a rase of rioting arising out of the events which happened in village Kurawad soon after the Holi festival was commenced against him obviously by the police which was said to be pending at the time-his evidence was recorded in this case in January. 1953.

It is pointed out that the accused was acquitted in that case though there is nothing on this record to show what the result of the case was. The plaintiff further admitted that he was also prosecuted under Section 379, I. P. C., for stealing a cot in the court of the Sub-Divisional Magistrate, Udaipur, and this prosecution is also admitted to have emanated about the time and apparently from the events which took place in this village when the present report was made, and the plaintiff first said that that case had been dismissed under Section 95, I. P. C., but later pointed out that the State had withdrawn that case against him.

I have no hesitation in saying that it has been sufficiently proved that a commotion had been created in this village by the plaintiff and his associates during the days following immediately on the Holi festival most probably because the defendants and their companions were not prepared to observe mourning (as appears to have been customary in tin's village) on account of a former Jagirdar of this village having died on the day of the Holi, and that this led to violence against which the defendants alleged to have made a number of reports to the police, which unfortunately have not been brought on this record : but it is admitted that they certainly made the one which has culminated in the present litigation. In these circumstances, I have no doubt that the report was made on an occasion which certainly gave rise to a qualified privilege if not to an absolute one.

22. It may be pointed out here that privilege is of two kinds (1) absolute privilege and (2) quali-fied privilege. I have already dealt with the plea of absolute privilege above and would content myself with repeating only this much here that no action whatsoever lies for a statement made on an occasion which is absolutely privileged.

Now, as to a qualified privilege, a communication is said to be so privileged if it is made by a person in discharge of some duty, whether public or private, of a legal, moral or social character, or having an interest to be protected to a person who has some interest in receiving it, or to a person honestly believed to have a duty to protect that interest.

Such communications where they are fairly warranted by any reasonable occasion or exigency are also protected for the common convenience and welfare of the society. It may also be pointed out that a plea of qualified privilege can always be defeated by proving malice, that is, malice actual or in fact. The law is well settled that no action for a communication made on an occasion of a qualified privilege and fairly warranted by it lies unless it is proved to have been made maliciously or with an improper motive.

It is also well established that the word 'malice' in this connection is used in the sense of an improper motive and that the burden of proving the same lies on the plaintiff. Malice in this sense means that the statement is made for some purpose other than the one for which the law confers the privilege of making it and so the defendant is entitled to the possession of the privilege if he uses the occasion for that reason but not where he uses it for some indirect and wrong motive.

23. Now, malice may be proved by intrinsic I evidence or it may be inferred from the language used in the statement itself. Thus when the language is so violent or insulting then it may amount to evidence of malice by itself. It may be pointed out, however, that the language employed by the defendant may be strong to a degree and yet he will be entitled to protection, if having regard to all the circumstances of the case it can be justly said that what he said or wrote was justified by the exigencies of the occasion, because if that were not the true principle, the plea of qualified privilege would be virtually defeated.

24. Now so far as the present case goes, I have already referred to the background in some detail which led to the report Ex. P-1 being made by the defendants. I am clearly of the view that the occasion when the report Ex. P-1 bad been made was one to which the doctrine of qualified privilege, reasonably speaking, does apply.

The defendants finding themselves in the situation in which they happened to be at the relevant time had either a duty to perform or an interest to be protected and the person to whom they made the complaint was certainly authorised to give them some redress.

The communication was, therefore, certainly warranted in the circumstances, and the only question which then arises is whether the plaintiff has proved that the defendants made the report, which is challenged in this case, with malice in fact.

25. The argument of learned Counsel for the plaintiff was that even if the defendants made a report to the police they had no business to call the plaintiff a 'goonda' or a 'badmash' and that in saying so they had abused the privilege and malice was thereby proved and, therefore, even the plea of qualified privilege would not be open to them.

In the alternative, learned Counsel argued that no specific issue on the question of malice had been framed by the trial Court, and, therefore, if this Court came to the conclusion that the plaintiff had not succeeded in establishing malice in the circumstances of the case, an issue should be framed on this point, and the parties be allowed to lead evidence thereon and then the case should be decided on the basis of such evidence.

26. Now so far as the first aspect of the matter is concerned, it is true that the defendants had virtually called the accused a 'goonda.' I had occasion to construe this word in Hariram v. B. P. Sood, 1956 Raj LW 279 : (AIR 1957 Raj 51), though in another context, and it was held by me that the word 'goonda,' according to the dictionary called 'Raj-Kaj Shabd Kosh by Somdev Upadhyaya means a hooligan, a rogue, a bad-mash.' A hooligan is a person, according to the usual dictionary meaning, who is 'one of gang of young street rogues,' or a person who readily allows himself to indulge in lawless violence.

That being so, I do not feel persuaded to hold that in the circumstances of this case already pointed out above, the defendants can be said to have indulged in unnecessarily strong language when they called the plaintiff a 'goonda' so that they can be held disentitled to the plea of a qualified privilege.

In other words, the description of the plain-tiff as a 'goonda' can by no means be said to be entirely unjustified and I am not at all satisfied that it can be accepted as an intrinsic evidence of malice on their part. I, therefore, hold that the plaintiff has not succeeded in proving malice merely because the defendants used the word 'goonda' in relation to him.

27. The next question which then arises is whether there is any other evidence of malice in this case. I have no hesitation in saying that there is no evidence worth the name in, this connection, and I therefore, hold that malice has not been proved.

(27-a) As to the contention of learned Counsel that if this Court came to the conclusion that malice was not proved by the plaintiff in this case, a fresh issue should be framed and a finding invited on it after parties are allowed to lead evidence afresh on that point. I have no hesitation in saying that this plea does not merit acceptance at this late stage of the case.

It is true that no clear issue was raised in the trial court on this point; hut all the same, I am altogether unable to hold that the plaintiff was not alive to this aspect of the case, and it may even be said that issue No. 2 was certainly wide enough to permit the production of evidence of malice without any trouble. In fact, the plaintiff did make an allegation in paragraph 3 of the plaint that the report had been made by the defendants deliberately or maliciously to injure his reputation.

Thereafter when he came into the witness-box, he also stated in his examination-in-chief that the defendants intended to disgrace him when they called him a 'goonda' in Ex. P-1, But apart from that, none of the plaintiff's witnesses, namely, P. W. 2 Jodh Singh, P.W. 3 Wazir Shah, P.W. 4 Shambhunath, P.W. 5 Surajmal, P.W. 6 Govind-rani, P.W. 7 Kalooram P.W. 8 Bhemram and P.W. 9 Khudabux has said anything on that point.

Some of these witnesses have said that no procession had been taken out on the 3rd or 5th of the month of Chait after the Holi, but this evidence is obviously false and I refuse to believe it, None of them, however, say anything about malice on the part of the defendants. I may also point out in this connection that the plea which has now been sought to be raised by learned counsel has not been taken up by him in his memorandum of appeal.

In these circumstances, I am clearly of opinion that it would be not at all in the interests of justice to frame a fresh issue on the question of malice and invite a fresh finding thereon after allowing the parties opportunity to lead evidence on it. That would be unnecessarily protracting the litigation which has been hanging on for the last seven years or so.

28. There are only two more points which require brief notice. The first is whether there was publication of the alleged defamatory matter in the present case. The learned trial Judge seems to have thought that there was none; because, in the first place, the plaint does not mention that the defendants gave any publicity to the contents of Ex. P-1 and further that there was no evidence on this record that they had communicated them to the public.

This view of the learned trial Judge seems to me to be incorrect. The word 'publish' means to make known to others. The plaint undoubtedly said that the report had been made to the police. That being so, it cannot but be held that the alleged objectionable matter had certainly been communicated to some person or persons other than the plaintiff himself.

I may further point put in this connection that though in common parlance the word 'publication' is usually understood in the sense of making the contents known to the public, yet the meaning of this expression in the present context is not so limited in law. Thus, where a libel is contained in a telegram or is written on a post-card, that would amount to publication even though it is addressed to the party concerned, the reason being that the telegram would inevitably be read by the officials concerned in receiving or transmitting the contents thereof, and the past-card will also in all probability be read by some persons in the course of transmission.

There is no doubt that in the present case when the report was made to the police, it was certainly made known to persons other than the plaintiff and this was sufficient publication in the legal sense.

It is, therefore, entirely incorrect to say that there was no allegation as to publication on the part of the plaintiff in so far as the plaint was concerned.

It may also be pointed out in this connection that the defendants themselves admit that they had made a report to the police and consequently no further proof of publication was required.

29. In the second place, tie learned Civil Judge seems to have thought that the plaintiff had failed to prove the damages claimed by him and therefore he was not entitled to receive any. Now. so far as this aspect of the case goes, I desire to say, first that damages are of two kinds: generat and special, and the learned Civil Judge does not appear to have appreciated the distinction between them, and, second, that while special damages are required to be specifically pleaded and proved general damages are not.

General damages are damages which the law presumes to flow from, and as it were be the natural and probable consequence of the defendants' act. Therefore general damages need not be plead-ed specifically nor need any evidence be produced to prove them as such. I have no doubt that having regard to the pleading of the plaintiff in the present case, what he really claimed was general and not special damages.

That being so it was not necessary for him to produce evidence to prove them. The learned Civil Judge was, therefore, wrong in thinking that no damages could be awarded to the plaintiff in this case because he had not really suffered any or he had failed to prove them.

I may add, however, that both these errors in the judgment of the trial court are immaterial to the substantial result of the suit, as I have come to the conclusion that in the first place the report made by the defendants was absolutely privileged and secondly that even if it carried, only a qualified privilege, there was no proof whatsoever that it was born of malice in fact, and, on the other hand, there was ample proof to show that it had been made by the defendants in order to protect their own interests to a person in lawful authority and who could have or could reasonably be considered to have granted redress to them.

30. In the result this appeal fails and is hereby dismissed. The defendants will be entitled toone set of costs of this appeal from the plaintiff.


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