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J.B. Leslie Rogers Vs. A.R. Hajee Fakir Muhammad Sait (Dead) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1918)35MLJ673
AppellantJ.B. Leslie Rogers
RespondentA.R. Hajee Fakir Muhammad Sait (Dead) and ors.
Cases ReferredProtection of Trade v. Greenlands Ltd.
Excerpt:
.....of as he was anxious that enquiries should be started regarding the truth of the rumour that the saits were at the bottom of the poisoning. on the question as to whether d'souza started the conversation or whether the statements were first made by the defendant, there is not much reliable evidence. the learned counsel for the plaintiff admitted that it was after the examination of the defendant in the suit for wrongful dismissal that enquiries were started from which it was learned that defendant spoke to those two persons the words complained of. he stated at page 193 :in general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as, to verbal slander), and the law considers such..........the certificate of the sub-assistant surgeon given on the 16th to a certain extent supports him. d'souza's evidence given on the former occasion also corroborates his evidence. i have no doubt that he was unwell. this illness coupled with what he believed about the bringing in of human ashes so worked upon his nerves that he thought that the saits had engaged men to poison him. what we have to consider is, whether it was an honest belief. tindal, c.j. said in coxhead v. richards (1846) 3 common bench 569: 'on the contrary all the evidence went to prove that what he did, he did, under the full belief that he was performing a duty, however mistaken he might have been as to the existence of such a duty, or in the mode of performing it.' in stuart v. bell (1891) 2 q.b. 341. lord justice.....
Judgment:

John Wallis, C.J.

1. These are appeals from two decrees of the Subordinate Judge of Ootacamund awarding the two plaintiffs damages against the same defendant for alleged slander by falsely and maliciously publishing the following words : ' I have been poisoned and I suspect the Saits are at the bottom of it,' meaning thereby that the Saits had instigated the alleged poisoning. The Subordinate Judge has found publication proved in three instances, that the occasion was not privileged, that, if it was, the defendant was actuated by malice, and also apparently that he was never ill at all and never believed himself poisoned, The defendant from April 1913 had been in the service of the plaintiff's firm at Ootacamund as general manager of their office and planting estates. The evidence in this case shows, what is brought out more fully in the case of wrongful dismissal, that his relations with his employers towards the end of November 1914 were very bad, and that they did not wish to retain his services. The defendant appears to have suspected that, rather than dismiss him and face an action for damages as they subsequently did, they might endeavour to get rid of him by foul play whilst in one of his planting tours. He has spoken of various circumstances which excited suspicion in his mind, and while I do not think the circumstances were such as to give rise to a well-founded suspicion, it is I think clear that the defendant laboured under it. Before starting on his December tour he borrowed a gun to take with him, communicated with the Police, and had the names of his party taken down by the Police, and a constable in plain clothes sent round with him. Mr. Richmond for the plaintiffs argues that all these precautions, as well as the subsequent story of poisoning, were malicious inventions planned by the defendant to injure his employers. This in my opinion has not been proved. The defendant was clearly anxious to remain in the employment of the Saits, and could only have imperilled his prospects of doing so by getting up a case of poisoning against them. As I observed in the other case, it may be thai; some one in the interests of the Saits had been trying to frighten him into resigning, but his conduct before starting on tour as well as the entries in his diary show that, however unreasonably, he was under apprehensions as to his personal safety. This being so, if he suffered from poisoning symptoms, on the 13th and 14th, he would naturally in the circumstances of the case suspect that the Saits were, as was said, at the bottom of it. The Subordinate Judge in the present case goes so far as to refuse to believe that he suffered from the symptoms to which he speaks, but D'Souza the Estate Agent, speaks to his looking ill on the 15th, the day after the alleged poisoning, and on his way back to Ooty on the 16th he obtained a medical certificate, Exhibit, J. (9 C. (a) in the other appeal) which showed that he had symptoms of irritant porsoning. The facts that the defendant did not send for the Devarshola doctor at once, that he brought back some of the food he had eaten for examination by the Chemical Examiner instead of excreta, and that he did not call in a doctor after his return to Ootacamund are not in my opinion a sufficient foundation for the Subordinate Judge's conclusion that the whole thing was a, malicious invention for the purpose of injuring the Saits. That is not conduct to be expected from a gentleman in the position of Mr. Rogers, however much he might dislike and whatever grievances he might consider himself to have against his employers; and as I have already said, such a senseless and wicked plot would have endangered his position which he was unduly anxious to retain in spite of his differences with the Salts. The Subordinate Judge appears to me to have made far too much of the entries in his private diary in which he had relieved his feelings by jotting down what he-thought of his employers from day to day. It must, I think be taken that he really did suffer on the 13th and 14th from symptoms of poisoning, which may well in this country arise from purely accidental circumstances. This being so, I think it very natural having regard to the evidence as to what preceded, that he should have suspected however unjustly the Saits, who were the only persons interested in getting rid of him, of being at the bottom of it.

2. The Subordinate Judge found publication to three persons proved. There is no evidence of publication to Major Ward to justify the finding, and we may confine ourselves to the publications to D'Souza, an Estate Superintendent, on the 15th and to the publication on the 16th on the defendant's way back to Ootacamund to Bikram Singh another Estate Superintendent. In the evidence, which was given in July 1917, two and a half years after the event, there was a conflict between the plaintiffs witnesses and the defendant as to the details of their conversations with the defendant, and as to whether it was the witness or the defendant who first spoke of the suspicion against the Saits arising out of the defendant's illness. As to this I am not prepared to differ from the Subordinate Judges finding that it was the defendant who first mentioned his suspicons as this appears the more likely story.

3. At common law it is not actionable to say of a man that you suspect him of a crime, at any rate, in the absence of special damage or unless the observation be made with reference to his business See Buller's Nisi Prius 1200, Harrison v. King (1817) 4 Price, 46 Tozer v. Mash ford (1851) 6 Ex. 539 and Simmons v. Mitchell (1880) 6 App Cas 156 a decision of the Privy Council on appeal from the Windward Islands. In Parvathi v. Mannar I.L.R. (1884) Mad. 175. Sir Charles Turner, C.J. and Muthuswami Aiyar, J., held that the common law rule as to special damage being necessary to support an action for slander except in certain cases, was inapplicable in India and the case has been argued before us as one of privilege. Justification has not been pleaded. Taking it then to be defamatory to say that a person is suspected of having committed an offence, I think the person against whom the offence is alleged to have been committed must have a qualified privilege to discuss the case mentioning his suspicions with people who may be in a position to throw light on it, and that the privilege has not been exceeded in the case of the two publications of the words actually charged which are merely words of suspicion. The case appears to me to come within the wellknown rule laid down by Parke, B. in Toogood v. Spyring (1834) 1 C.M. and Rule 181 at p. 193, which has been approved in so many cases and recently by the highest tribunal, and may be looked to for guidance in the absence of any decision more closely in point. ' In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another, (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of a public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion or exigency and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.' Here the communication was in my opinion made by the defendant ' in the conduct of his own affairs in matters where his interest was concerned ' within the meaning of the rule, and was therefore privileged in the absence of actual malice, which in my opinion has no been proved. It has been argued that the communication to the two superintendents could not be privileged because there was no common interest, that is to say, that it did not matter to them whether the defendant was poisoned or not. Happily this contention appears to be erroneous in law. Statements made to protect the interest of the speaker, and statements made to protect a common interest form distinct heads of privilege, and are so dealt with in Arts. 36 and 37 of the most recent edition of Sir Hugh Eraser's Law of Libel and Slander, 5th Edn., pp. 226 and 228. In my opinion the case comes within the former head of privilege and malice has not been proved.

4. The appeals must be allowed and the suits dismissed with costs throughout.

Seshagiri Aiyar, J.

5. I agree. In this case the plaintiff, the head of the firm in which the defendant was employed as General Manager, and who is known as the Senior Sait claims damages against the defendant for defamation. The allegation in the plaint is that the defendant maliciously spoke and published the following words;--' I have been poisoned and I suspect that the Saits are at the bottom of it.' These defamatory statements were said to have been made to three individuals namely,--A.W. D'Souza, P.J. Bikram Singh and Major Ward. The dates of the publication were the 15th and 17th of December, 1914.

6. The defence is that the suggestion about poisoning came from the subordinates of the plaintiff, and that the defendant, ' having regard to the surrounding incidents of the particular tour on which he was engaged, thought it likely to be true.' At the time of the issues, apparently no plea of justification was advanced. Issue 1 (b) raises the question of privilege. The Subordinate Judge found that the words were uttered by the defendant, that there was no privilege, and that he was actuated by malice. In the appeal Mr. Chamier mainly rested his contention upon the plea of privilege. In order to appreciate this contention a few facts have to be stated. Defendant was employed by the plaintiff and his sons as their General Manager. The engagement was in May 1913. The parties were not on good terms almost from the beginning. There were frequent disputes. Ultimately plaintiff was dismissed from service on the 17th February 1915. Ten days before the dismissal the defendant started on his tour of inspection to the estates belonging to the plaintiff in Wynaad. His case is that on the 13th evening he was unwell and that he suspected one Jamaluddin, a writer at the estate, of having poisoned him. He says he got worse on the morning of the 14th and that when D'Souza the Superintendent of the estate came to see him, the latter suggested that he must have been poisoned at the instance of the Saits, and that thereupon he informed D'Souza that he also believed that the Saits were at the bottom of the poisoning. On the 15th, defendant met Bikram Singh, the Superintendent of another estate who, according to him, also believed that the Saits must have set up somebody to poison him. On his way back to Octacamund from the tour he met Major Ward to whom he communicated his suspicions.

7. The question for consideration is whether these communications to these three people were privileged and if privileged, whether on the evidence it is proved that defendant was actuated by malice. As regards Major Ward, Mr. Richmond who appeared for bhe defendant did not seriously argue that the evidence is sufficient to establish publication. Major Ward himself does not remember having heard from the defendant the words complained of, and the other evidence is not strong enough to establish that the defamatory words were published to Major Ward. The case of the other two persons stands on a different footing.

8. D'Souza and Bikram Singh and the defendant were co-employees under the plaintiff. Defendant says that he gave expression to the words complained of as he was anxious that enquiries should be started regarding the truth of the rumour that the Saits were at the bottom of the poisoning. On the question as to whether D'Souza started the conversation or whether the statements were first made by the defendant, there is not much reliable evidence. I shall proceed to deal with the case on the footing that the defendant first communicated his suspicions to D'Souza. It was argued by the learned Counsel for the plaintiff that the defendant's evidence about his desire that enquiries should be made should not be accepted. He refers to the fact that in his deposition in the suit for damages for wrongful dismissal he did not mention this circumstance. But it must be remembered that in that case the question about poisoning arose very incidentally and consequently the omission to refer to the starting of. enquiries is not a ground for holding that the defendant is not speaking the truth. It was also contended that the evidence oi D'Souza and Bikram Singh is more entitled to weight than that of the defendant. These two persons did not communicate to the plaintiff their version of what happened immediately after the words were spoken and even after the dismissal of the plaintiff. The learned Counsel for the plaintiff admitted that it was after the examination of the defendant in the suit for wrongful dismissal that enquiries were started from which it was learned that defendant spoke to those two persons the words complained of. I feel little hesitation in holding that the evidence of the defendant is entitled to greater weight than the evidence of these two persons. If we reject the vidence of these two witnesses the defendant's evidence is practically uncontradicte 1. My coaclusion is that defendant spoke these words to D'Souza and Bikram Singh with a view to starting enquiries regarding the truth of the suspicion that the Saits were at the bottom of the poisoning incident. On this conclusion, the question is whether the statement is privileged.

9. In Toogood v. Spyring (1834) 1C.M. & R 181 Baron Parke in defining the limits of privilege uses language which has since become classical. He stated at page 193 :--' In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as, to verbal slander), and the law considers such publication as malicious, unles 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 such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice.' In London Association for Protection of Trade v. Greenlands, Limited (1916) 2 A.C. 15 and in Adam v. Ward (1917) A.C.309, this dictum of the learned Baron was regarded as laying down the law correctly. Eeference may also be made to Harnon v. Falle (1879) L.R. 4 A.C. 247 and to Stuart v. Bell (1391) 2 Q.B. 341 The point for determination, therefore, is whether the words published to D'Souza comes within the protection referred to in the dictum above quoted. There can be no doubt that the defendant was acting in the discharge of a private duty, and that the communication related to the conduct of his own affairs. He was under the employ of the Saits, He had rightly or wrongly come to the conclusion that the Saits were anxious to get rid of him. Under these circumstances, if he asked D'Souza, a subordinate of the Saits and who was also a subordinate of his, to institute enquiries regarding the truth of the suspicion, was he not acting in the conduct of his own affairs and in respect of a matter in which his own interests were concerned I am of opinion that the communication to D'Souza comes within the principle of Baron Parke's pronouncement. Mr. Richmond contended that the person to whom the communication is made must have an equal interest with the communicator if the privilege is to be maintained. He relied on Force v. Warren (1864) 15 Com Ben (N.S.) 806 which to a certain extent supports him. In Whitley v. Adams (1863) 15 Com Ben 392 Erle, C.J. said:-' So also is the rule as to giving information concerning private individuals, when given bona fide, and to a person having an interest in making the enquiry.' I do not understand the learned Chief Justice to have laid down that unless the person who receives the communication is equally interested, there can be no privilege. He was only referring to one class of cases. As a matter of face if we look into the earlier portion of the judgment, it is clear that the Lord Chief Justice was stating the law in terms identical with those employed by Baron Parke. He states : ' Not only, therefore, was the defendant in my judgment discharging a social and moral duty, but he was also acting with a just view to his own interest in writing that letter.' Mr. Justice Byles in the same case says that the law has been well laid down in Toogood v. Spyring (1834) 1 C.M. & Rule 181. Mr. Richmond stated that if the receiver of the communication is a friend or a police officer the privilege would exist. I fail to see why the communication made to a subordinate with a view to starting an enquiry should stand on a different footing. In Stuart v. Bell (1891) 2 Q.B. 341 communications made to a friend were considered to be within the rule enunciated by Baron Parke. The same principle governs communications made to a subordinate. In my opinion the communication made to D'Souza was privileged.

10. As regards Bikram Singh, it was contended by the learned Counsel for the respondent that as already a communication was made to D'Souza and as subsequently the defendant had conveyed his suspicions to a Sub-Inspector of Police, the further communication to Bikram Singh was unjustifiable. No doubt in Force v. Warren (1864) 15 Com Ben 806 Erle, C.J. says :--' It is no part of a man's duty to go into the confessional to every chance person who may choose to ask impertinent questions. And I see no interest that the defendant could have to justify himself in the eyes of that witness.' This decision of the Lord Chief Justice has not been commerited upon or followed in any of the subsequent decisions. After all the question for consideration is whether in the circumstances in which the defendant found himself, he exceeded the privilege by repeating his suspicions to another subordinate of his. He, no doubt, had set D'Souza on the track of an enquiry, and he apparently thought that this matter should be taken up in band by Bikram Singh' also. I do not think that even on the principle stated in Force v. Warren (1864) 15 C.B. 806 the defendant can be said to have excseded his privilege. I therefore hold that both the communications were privileged.

11. The next question is whether the defendant was actuated by malice The Subordinate Judge found that the defendant could have had no reasonable belief in the rumour which he had given currency to. At first sight it seems almost incredible that a person of the status and attainments of the defendant should have believed that the Saits intended to poison him. But the state of mind of the defendant had to be judged from the surrounding circumstances. He had conceived a great dislike to the plaintiff and the plaintiff made no secret of his desire to dispense with the services of the defendant. One ludicrous incident seems to have told on the nerves of the defendant. The Saits had stored in the office godown some manure. The defendant was led to think that these were ashes from the cremation ground brought in order to practice incantation. The defendant who says that he had been attracted to the subject of black magic by what he heard during his employment in the north of India, seems apparently to have been impressed that these ashes were brought tothe office with a view to practising black magic on him. Some persons in the office of the Saits seem to have played upon his credulity. In this frame of mind the defendant believed that the visit of Jaffar Sait in November 1914 to the Wynaad Estates was with a view to get the defendant into trouble. He seems to have asked the Superintendent of Police at Ootacamund for the service of a detective in his tour. There can be no question that the defendant was in a morbid state of mind regarding his safety. I have no doubt that there was no reasonable ground for this belief. At the same time, I am not prepared to say that he was not bona fide, under the impression that attempts were being made to get rid of him. He went on his inspecting tour in this nervous state. I fully believe his evidence that he was unwell on the evening of the 13th and on the morning of the 14th. The certificate of the Sub-Assistant Surgeon given on the 16th to a certain extent supports him. D'Souza's evidence given on the former occasion also corroborates his evidence. I have no doubt that he was unwell. This illness coupled with what he believed about the bringing in of human ashes so worked upon his nerves that he thought that the Saits had engaged men to poison him. What we have to consider is, whether it was an honest belief. Tindal, C.J. said in Coxhead v. Richards (1846) 3 Common Bench 569: 'On the contrary all the evidence went to prove that what he did, he did, under the full belief that he was performing a duty, however mistaken he might have been as to the existence of such a duty, or in the mode of performing it.' In Stuart v. Bell (1891) 2 Q.B. 341. Lord Justice Lindley after examining a number of decisions says that the opinion of Tindal, C.J. 'is the most accurate and safe to take as a guide.: Lord Buckmaster in 1916 Appeal Cases London Association for Protection of Trade v. Greenlands Ltd. (1916) 2 A.C. 15. states the law in similar terms. I am of opinion that the defendants must be taken to have been under a bona fide belief that the Saits were at the bottom of an attempt to get rid of him, and hold that no malice has been established in this case. I confess that I have come to the conclusion on the question of malice with come hesitation. But Having regard to the strained relations that existed between the plaintiff and the defendant just before the incident happened and having regard to the state of mind which the defendant was in, and rejecting as I do the evidence of D. Souza and Bikram Singh for the reason that their story, if true, should have been communicated to the plaintiff either at once or at least after the dismissal of the defendant from the service, I see no reason for not accepting the uncontradicted evidence of the defendant on the question of his bona fides. I would therefore reverse that judgment of the Subordinate Judge and dismiss the plaintiff's suit with costs throughout.


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