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Bapalal and Co. Vs. A.R. Kishnaswami Aiyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad26; (1940)2MLJ556
AppellantBapalal and Co.
RespondentA.R. Kishnaswami Aiyar
Cases ReferredIn Madhab Chandra Ghose v. Nirod Chandra Ghose I.L.R.
Excerpt:
- .....mad. 315 and golap jan v. bholanath khettry i.l.r.(1911) cal. 880, complaints to a magistrate were held absolutely privileged, even though the magistrate dismissed them. in madhab chandra ghose v. nirod chandra ghose i.l.r. (1939) 1 cal. 574, the complaint to the police was no doubt followed by an actual trial, but there is nothing in the judgment to suggest that that fact influenced the learned judges in coming to their decision. both judges apply the principle of watson v. m'ewan (1905) a.c. 480, to a complaint to the police and ghose, j., points out on page 580 that the reason for the privilege is stronger in the case of a complaint to the police than in the case of statements to a solicitor for the question whether a prosecution shall follow upon the complaint is taken out of.....
Judgment:

King, J.

1. This appeal arises out of a suit riled by respondent against the appellants for damages for defamation. The facts may be stated very briefly. Respondent, a Medical Practitioner in Madras took some diamonds from the appellants a firm of jewellers, on approval in April, 1936. On 25th May appellants presented him with an invoice for their cost. By 27th September, the diamonds had not been paid for. On that day the appellants sent a letter to the Inspector of Police, Flower Bazaar Police Station, which is claimed by respondent to be defamatory, as being equivalent to a charge against him of criminal breach of trust. In their written statement appellants contended that this communication was privileged, having been sent bona fide with the sole purpose of protecting their own interests. The learned City Civil Judge held that the occasion was privileged and if the letter were in fact bona fide the suit must be dismissed, but he held further that the letter did not state the true facts; that there was an outright sale on 25th May; and that the appellants were maliciously referring to the Police for investigation what they knew could be only the subject-matter of a civil claim. He accordingly decreed the suit.

2. In appeal an entirely new point has been taken with reference to the law of privilege. It is now contended that the letter in question was privileged absolutely, that is to say, that a Civil Court is precluded from adjudicating upon the question whether it was sent maliciously or not. On a careful consideration of the authorities I think this contention must prevail.

3. The principal authorities to which I have been referred to in the course of the arguments are Sanjivi Reddi v. Koneri Reddi (1925) 50 M.L.J. 460 : I.L.R. 49 Mad. 315, Golap Jan v. Bholanath Khettry I.L.R.(1911)Cal. 880, Madhab Chandra Ghose v. Nirod Chandra Ghose I.L.R. (1939) 1 Cal. 574 and Majju v. Lachman Prasad I.L.R. (1924) All. 671 . All these authorities are unanimous in holding that the common law of England which grants an absolute privilege to all statements made in the witness-box should be applied in India. That privilege extends in England to the preliminary examination of witnesses, e.g., by a solicitor to find out what they can prove see Watson v. M'Ewan (1905) A.C. 480. The question then is how far this principle derived from Watson v. M'Ewan (1905) A.C. 480 should be extended. Sanjivi Reddi v. Koneri Reddi (1925) 50 M.L.J. 460 : I.L.R. 49 Mad. 315 dealt with a complaint to a Magistrate requesting him to take action under Section 107, Criminal Procedure Code, and to statements made by the complainant to a Police Officer investigating that complaint. Both were held to be absolutely privileged. No actual evidence was given in this case, as the Magistrate eventually refused to take any action under Section 107. In Golap Jan v. Bholanath Khettry I.L.R.(1911)Cal. 880, a complaint laid before a Magistrate for criminal breach 6i trust which led to no trial but was dismissed under Section 203, Criminal Procedure Code, was held to be absolutely privileged. In Madhab Chandra Ghose v. Nirod Chandra Ghose I.L.R. (1939) 1 Cal. 574, it was held that both a report to the police alleging the commission of a crime, and evidence given in Court in support of the accusation were absolutely privileged. In Majju v. Lachman Prasad I.L.R.(1924)All. 671 , a distinction was drawn between a complaint to the police which in fact led to judicial proceedings, and one which did not. A complaint in the latter case was held not to be privileged.

4. Now there is nothing in the three other decisions referred to above to suggest that this particular ground of distinction would find favour with the Madras or Calcutta High Courts. In Sanjivi Reddi v. Koneri Reddi (1925) 50 M.L.J. 460 : I.L.R. 49 Mad. 315 and Golap Jan v. Bholanath Khettry I.L.R.(1911) Cal. 880, complaints to a Magistrate were held absolutely privileged, even though the Magistrate dismissed them. In Madhab Chandra Ghose v. Nirod Chandra Ghose I.L.R. (1939) 1 Cal. 574, the complaint to the police Was no doubt followed by an actual trial, but there is nothing in the judgment to suggest that that fact influenced the learned Judges in coming to their decision. Both Judges apply the principle of Watson v. M'Ewan (1905) A.C. 480, to a complaint to the police and Ghose, J., points out on page 580 that the reason for the privilege is stronger in the case of a complaint to the police than in the case of statements to a solicitor for the question whether a prosecution shall follow upon the complaint is taken out of complainant's hands by his own action.

5. I am accordingly of opinion that the weight of authority is in favour of the view that a complaint to a Police Officer from its very nature as a statement which the complainant is prepared later, if called upon to do so, to substantiate upon oath is absolutely privileged. I must accordingly allow this appeal, and dismiss respondent's suit. As the main ground in the appeal was never pleaded in the Court of first instance I make no order as to costs.


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