A. Alagiriswami, J.
1. This second appeal arises out of a suit for damages for defamation. The defamation consists of a complaint by the appellant to the police in which he had stated in connection with a theft, that the respondent alone was his enemy in all respects and that the theft might have been committed only by him to give trouble to him. The trial Court took the view that the appellant bona fide and reasonably thought that the respondent (plaintiff) might have been responsible for the theft and could not, therefore, be said to have defamed the respondent. The lower appellate Court took the view that the complaint does not admit of any other interpretation than that respondent must have committed that theft and, therefore, allowed the appeal and decreed the suit.
2. In this Court, the only point taken before me is that the complaint given by the respondent is absolutely privileged and that therefore, the lower appellate Court was wrong in having allowed the appeal and decreed the respondent's claim. Clearly this contention has got to be upheld in view of the decisions of this Court in Bapalal & Co. v. Krishnaswami Iyer : AIR1941Mad26 , King, J., after an exhaustive review of all the decisions on the question, held 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. Abdur Rahman, J., in a case reported in the same volume at page 538 Vettappa Kone v. Muthukaruppa : AIR1941Mad538 , also took the same view. Both the learned Judges referred to an earlier Bench decision of this Court in Sanjeevi Reddi v. Koneri Reddi : AIR1926Mad521 , in which Coutts Trotter, C.J. and Viswanatha Sastri, J., took the view that statement made in a complaint to a Magistrate under Section 107. Criminal Procedure Code, and; a repetition of the same statement before a police officer to whom the Magistrate referred the complaint for enquiry and report are absolutely privileged and no action for defamation in respect of such statement is maintainable. In that case though the original complaint was before a Magistrate and therefore absolutely privileged, it could plausibly be argued, that a statement made before a police officer when a complaint made to a Magistrate is referred by him to the police for investigation, should be held to be equally privileged like the statement or the complaint before the Magistrate. All the same the view of the Law taken by the Bench is categoric. At page 319 Coutts Trotter, C.J., puts the principle thus:
I am, therefore, of opinion that the statements made to the police officer which could only be made with a view to their being repeated on oath before the Magistrate were absolutely privileged.
3. The learned Judge referred to the statement of law in Watson v. M'Ewan L.R. (1905) A.C. 480, in which Lord Halsbury stated:
It is very obvious that the public policy which renders the protection of wits' nesses 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.
4. After referring to the statement of law by Lord Halsbury, Coutts Trotter, C.J. proceeded:
I take that as clearly implying that all statements made by a potential witness as a preliminary to going into witness box are equally privileged with the statements made when actually in the box in Court.
5. Viswanatha Sastri, J., referred to the Bench decision in In re Muthuswamy Naidu I.L.R. (1914) Mad. 110, where it was held that a defematory statement in a complaint to a Magistrate was absolutely privileged and while discussing the question whether any such privilege could be claimed in respect of statements made to the police the learned Judge referred to the decision of Seshagiri Aiyar, J., In re Kakimara Anjaneyalu (1916) 35 I.C. 813, to the effect that the rule of law that parties before the Court are absolutely privileged cannot be extended to the case of complaints to a police constable. Then he went on to refer to the case in Watson v. M'Ewan L.R. (1905) A.C. 480, already referred to and held that where a Magistrate referred a matter to the police for investigation, statements made to the police were also absolutely privileged. The case in Sanjivi Reddi v. Koneri Reddi : AIR1926Mad521 , as I mentioned, was a case of a complaint made to a Magistrate which was referred to the police for investigation and therefore it could be said that as the statement made to the police was only following a complaint made to a Magistrate that was privileged. But the statement of law as laid down by Coutts Trotter, C.J. is categoric and this was accepted by King, J., and Abdur Rahman, J. The Calcutta High Court Madhabchandra Gose v. Nirode Chandra Goss I.L.R. (1939) 1 Cal. 574, took the same view. In fact Ghose, J., referring to the decision in Watson v. M'Ewan L.R. (1905) A.C. 480, stated that in a sense statements made to the police appear to be on stronger ground than statements made to a solicitor, as reported in the case of Watson v. M'Ewan L.R. (1905) A.C. 480. That also was a case where the complaint was made to the police in the first instance. The decision of this Court relied upon by the respondent in T. Ayyangar v. K.S. Ayyangar : AIR1957Mad756 , cannot help him. In that case the petition which was sought to be made the basis of a claim for defamation was held, on the facts, not to be a petition where an action was sought to be taken under Section 107, Criminal Procedure Code and that in the absence of the basis for any belief by the defendant that he was making these statements with a view to repeat them on oath at subsequent judicial proceedings to be taken by the Deputy Inspector-General of Police the defendant was not free from liability for damages.
6. In Majju v. Lakshman 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 and the complaint in the latter case was held not to privileged. As would be observed from the Calcutta decision and the decisions of this Court such a ground of distinction is not made either by this Court or by the Calcutta High Court. Reliance was placed on behalf of the respondent on the decision of the Bombay High Court in Marogi Sathasiv v. Godubai Narayanarao : AIR1959Bom443 . The learned Judge who decided that case refers to the Calcutta High Court decision and this Court's decision and prefers to follow the earlier decision of the Bombay High Court in Ganagapagounda v. Bamyya A.I.R. 1943 Bom. But it is not open to me to do so and I am bound to follow the decision of this Court and following the decision, I hold that the complaint by the appellant to the police was absolutely privileged. The appeal therefore has got to be allowed. It is accordingly allowed and the suit will stand dismissed. But in view of the uncertain position of law, both parties will be directed to bear their own costs throughout.