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C.H. Crowdy Vs. L. O'Reilly (02.09.1912 - CALHC) - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in18Ind.Cas.737
AppellantC.H. Crowdy
RespondentL. O'Reilly
Cases ReferredAugada Ram Shah v. Nemai Chand Shah
Excerpt:
malicious prosecution - prosecution, meaning of--defamatory statement--pleading--damages, suit for, whether maintainable. - asutosh mookerjee, j.1. this is an appeal on behalf of the plaintiff is what has been described as a suit for recovery of damages for malicious prosecution and libel. as the suit has been dismissed, without trial on the merits, on the ground that it is not maintainable, we must, for our present purpose, assume that the allegations made in the plaint are well founded in fact. the case for the plaintiff is that on the 16th june 1909, the defendant presented a petition in the court of the joint magistrate of begusarai in which he made a number of false and malicious allegations against the plaintiff in that petition, the defendant stated that on the 11th june 1909, the plaintiff and his servants, four in number, prevented him from sowing on his land, and that they intimidated his servants.....
Judgment:

Asutosh Mookerjee, J.

1. This is an appeal on behalf of the plaintiff is what has been described as a suit for recovery of damages for malicious prosecution and libel. As the suit has been dismissed, without trial on the merits, on the ground that it is not maintainable, we must, for our present purpose, assume that the allegations made in the plaint are well founded in fact. The case for the plaintiff is that on the 16th June 1909, the defendant presented a petition in the Court of the Joint Magistrate of Begusarai in which he made a number of false and malicious allegations against the plaintiff In that petition, the defendant stated that on the 11th June 1909, the plaintiff and his servants, four in number, prevented him from sowing on his land, and that they intimidated his servants and were prepared to assault him, whereupon his servants for fear of danger to their lives left the place. The defendant further stated in the petition that, on the day following this incident, the plaintiff came up armed with a gun, and accompanied by his servants, who were armed with sticks, rushed towards the defendant with shouts of 'beat, beat.' Upon these allegations, the defendant prayed that in order to avoid a breach of the peace, proceedings might be instituted under Section 145 of the Code of Criminal Procedure, or security and recognizance bond taken from the plaintiff under Section 107 of the Code. On receipt of this application, the Magistrate directed notice to issue on the plaintiff and his servants enjoining them not to go upon the land. This order was made under Section 144 of the Criminal Procedure Code. ON the 21st June 1909, the plaintiff filed a written statement in which he traversed the allegations of the defendant. The Magistrate thereupon recorded an order to the effect that the allegations of the defendant clearly showed that a breach of the peace was likely and imminent and that proceedings under Section 145 of the Criminal Procedure Code must be instituted; he also directed that in the meantime the land be attached. The proceedings were subsequently transferred to the Court of the Joint Magistrate of Monghyr. The plaintiff filed his written statement on the 7th September 1909, and the case was adjourned till the 11th September, to enable the defendant to revise his written statement: the Magistrate noted that the land had been actually attached as ordered, and directed the attachment to continue. On the 11th September 1909, the defendant filed a petition to the effect that there was no longer any likelihood of a breach of the peace and prayed that the proceedings might be cancelled. The plaintiff was represented in Court, and he took exception to the insinuation that he had ever been out of possession of the land till the order of attachment had been made. The Magistrate held that as there was no danger of a breach of the peace, he had no jurisdiction to continue the inquiry. The proceedings were thereupon cancelled, and the land directed to be released from attachment. On the 15th December 1909, the plaintiff commenced the present action for damages. He asserted that the proceedings before the Magistrate had been falsely and maliciously instituted, that he and his servants had been needlessly harassed, and that his reputation had been injured by the wholly untrue allegation that he went, armed with a riffle and accompanied by armed retainers, with a view to cause a breach of the peace. The plaintiff claimed Rs. 11,000 as damages The defendant contested the claim on the merits, and further urged that the plaint did not disclose a cause of action and the suit was not maintainable. The Subordinate Judge has dismissed the suit on the preliminary ground that it is not maintainable. He has held that proceedings under Sections 141 and 145 of the Criminal Procedure Code did not constitute a 'prosecution' of the plaintiff by the defendant, so that damages Cannot be claimed for malicious prosecution. He has farther held that the statements in the petition to the Magistrate, on the strength whereof the proceedings were instituted, were privileged, and could not form the foundation of a claim for damages for libel. The plaintiff has appealed to this Court, and on his behalf both the grounds, upon which the suit has been dismissed, have been assailed as untenable. In my opinion, the decision of the Subordinate Judge cannot be supported.

2. In so far as the first ground assigned by the Subordinate Judge is concerned, the learned Vakil for the respondent has sought to support it by an analysis of the provisions of the Criminal Procedure Code of 1893. He has pointed out that the Code is divided into nine parts, of which the fourth deals with the prevention of offences while the sixth treats of proceedings in prosecutions. Sections 107, 144 and 145 find a place in the fourth part of the Code; from this circumstance, it has been argued that an application to a Magistrate to institute a proceeding under any of these sections cannot be deemed a prosecution of the person against whom the proceeding is sought to be commenced. This contention may, for our present purpose, be assumed to be well-founded; but it does not follow that when jurists speak of the tort known as 'malicious prosecution,' they use the term 'prosecution' in the limited sense suggested by the respondent. An action for maliciously putting the law in motion lies in all cases where there is a concurrence of the following elements: (1886) 11 Ap. Cas. 247; 52 L.J.Q.B. 620; 49 L.T. 618; 32 W.R. 50 the commencement or continuance of a criminal proceeding; (1905) App. Cas. 168; 74 L.J.P.C. 62; 92 L.T. 483 its legal causation by the present defendant against the plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favour of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; (6) damage conforming to legal standards resulting to the plaintiff: Abrath v. North, Eastern Railway Company (1886) 11 Ap. Cas. 247; 52 L.J.Q.B. 620; 49 L.T. 618; 32 W.R. 50; Cox v. English, Scottish and Australian Bank Ld. (1905) App. Cas. 168; 74 L.J.P.C. 62; 92 L.T. 483. Any enforcement of the Criminal law through Courts of Justice concerning a matter which will subject the accused to a prosecution, without regard to the technical form in which the charge has been preferred and irrespective of the grade of the criminal offence, is a sufficient proceeding upon which an action of malicious prosecution may be based. To take one illustration, the action has been held to lie for maliciously and without probable cause instituting and carrying forward proceedings under a search warrant: Elsee v. Smith (1822) 2 Chitty 304; 24 R.R. 639; 1 D. & R. 97; Leigh v. Webb (1800) 3 Esp. 165. It has also been ruled that proceedings maliciously taken against a person to compel him to furnish surety to keep the peace may be made the foundation for a suit for damages for malicious prosecution: Fisher v. Hamilton (1874) 49 Ind. 341. It is well settled that it is an actionable wrong to institute various kinds of legal proceedings against another person, maliciously and without reasonable and probable cause; for instance, a liability attaches to him who, maliciously and without reasonable and probable cause, petitions to have another person adjudicated a bankrupt, Johnson v. Emerson (1871) 6 Ex. 329; 25 L.T. 337; 40 L.J. Ex. 201 or attempts to have a company wound-up as insolvent, Quartz Hill Gold Mining Company v. Eyre (1883) 11 Q.B.D. 674; 52 L.J.Q.B. 488; 49 L.T. 249; 31 W.R. 668 or procures the arrest of a person by means of judicial process, whether civil or criminal, Churchill v. Siggers (1854) 3 E. & B. 929; 2 C.L.R. 1509; 23 L.J.Q.B. 308; 18 Jur. 773; 2 W.R. 551; 23 L.T. (o.s.) 220; 97 R.R. 83 or obtains execution against the property of a judgment-debtor: Clissold v. Cratchley (1910) 2 K.B. 244; 79 L.J.K.B. 635; 102 L.T. 620; 54 S.J.442; 26. T.L.R. 409. I am not prepared to accept the contention that an action for damages for malicious prosecution should lie only when the original proceeding was a 'prosecution' in the sense in which the term is used in the Code of Criminal Procedure; it is not essential that the original proceeding should have been of such a nature as to render the person, against whom it was taken, liable to be arrested, fined or imprisoned. The present case, however, is reasonably free from difficulty. Here, the application of the defendant stated facts, which, if true, rendered the plaintiff liable to prosecution for being a member of an unlawful assembly. It is further worthy of note that the defendant invited the Magistrate to take action under Section 107 of the Criminal Procedure Code, and an order under that section may ultimately lead to the detention of the person called upon to furnish security, under the circumstances mentioned in Section 123. It must also be remembered that, as a result of the proceedings initiated by the defendant, the land claimed by the plaintiff was attached; if this order was obtained maliciously and without reasonable and probable cause, an action clearly lies against the defendant for unlawful interference with the exercise of property rights of the plaintiff: Madhan Mohan Das v. Gokul Doss 10 M.I.A. 563; 1 Ind. Jur. (N.S.) 269; 5 W.R. (P.C.) 91; Bishun Singh v. A.W.N. Wyatt 14 C.L.J. 515; 16 C.W.N. 540 : 11 Ind. Cas. 729; Bhut Nath v. Chandra Binode 16 C.L.J. 34; 16 Ind. Cas. 443. If the allegations of the plaintiffs be ultimately established as well-founded on fact, it is manifest that there has been a deliberate abuse of the process of the Criminal Court; salutary provisions framed by the Legislature to secure the prevention of offences, have been utilised maliciously and without reasonable and probable cause for the harassment of the plaintiff who has thereby suffered damage, as he asserts, in reputation and property. Under these circumstances, I must hold that the suit as framed is maintainable.

3. In so far as the second ground assigned by the Subordinate Judge is concerned, the learned Vakil for the respondent has contended that the statements in the petition to the Magistrate whereon the proceedings were based, are absolutely privileged and cannot form the foundation of a claim for damages for libel. He has argued that we ought to adopt the rule of English Law that no action lies against a party for words spoken in the ordinary course of any proceeding before any Court or tribunal recognised by law. The statement of the law on this subject by Lord Mansfield in R. v. Skinner (1772) Lofft 55 to the effect that neither party, witness, Counsel, Jury, nor Judge can be put to answer, civilly or by criminally, for words spoken in office, has met with approval in subsequent decisions which must be deemed, so far as the law of England is concerned, clear, uniform and conclusive: Dawkins v. Rokeby (1873) 8 Q.B. 255 at p. 266; 45 L.J.Q.B. 8; 33 L.L.T. 196; 23 W.R. 931; 7 H.L. 744; Munster v. Lamb (1883) 11 Q.B.D. 588 at p. 606; 52 L.J.Q.B. 726; 49 L.T. 252; 32 W.R. 248; 47 J.P. 805. The principle upon which these decisions are founded is that the administration of justice would be paralysed if those who are engaged in it were to be liable to actions of libel or slander upon the imputation that they tad acted maliciously and not bona fide: Dawkins v. Paulet (1869) 5 Q.B.D. 94 at p. 116; 9 B. & S. 768; 39 L.J.Q.B. 53; 21 L.T. 584; 18 W.R. 336. This immunity, it has been maintained, extends to everything said by the parties in the conduct of their case, so long as it is in any way connected with the inquiry before the Court, because in the words of Pigott, C.B., in Kennedy v. Hilliard (1859) 10 Ir. C.L.R. 195 at p. 209; 1 L.T. 578 public policy requires that a party, in preferring or resisting a legal proceeding, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel: See also McLaughlin v. Doey (1893) 32 L.R. Ir. 518 at p. 530. Amongst decisions which support the proposition that all documents necessary to or properly used in a judicial proceeding are absolutely privileged, for instance, all pleadings delivered or affidavits sworn in the course of a judicial proceeding before a Court of competent jurisdiction, reference may be made to those of Revis v. Smith (1856) 18 C.B. 126; 25 L.J.C.P. 195; 2 Jur (N.S.) 614; 4 W.R. 506; 27 L.T. (o.s.) 106; 107 R.R. 236; Henderson v. Broomhead (1859) 4 H. & N. 569; 28 L.J. Ex. 360; 5 Jur. (N.S.) 1175; 7 W.R. 492; 118 R.R. 618; Hare v. Meller (1584) 3 Leon. 138 at p. 163 as explained by Baron Pollock in Proctor v. Webster (1885) 16 Q.B.D. 112; 55 L.J.Q.B. 150; 53 L.T. 765; Weston v. Dobniet (1618) Cro. Jac. 432 and Cukler v. Dickson (1885) 4 Coke 146. In the case last mentioned, it was ruled that no allegation contained in Articles of the Peace exhibited to Justices is actionable; the Court of King's Bench observed that 'if one exhibits Articles to Justices of the Peace against a certain person, containing diverse great abuses and misdemeanours not only concerning the petitioners themselves but many others, and all this to the intent that he should be bound to his good behaviour, the party accused shall not have for any matter contained in such Articles any action upon the case, for they have pursued the ordinary course of justice in such case, and if action should be permitted in such cases, those who have just cause for complaint would not dare to complain for infinite vexation.' The same rule has been adopted in the American Courts where it has been ruled that defamatory matter contained in pleadings filed according to law in a Court of competent jurisdiction, if relevant and pertinent to the issues in the case, is absolutely privileged, and it is immaterial that the allegations are false and malicious and are made under cover and pretence of a wrongful or groundless suit: McLaughlin v. Cowley (1879-81) 127 Mass. 316; 131 Mass. 70; Sherwood v. Powell (1895) 52 Am. St. Rep. 614; 61 Minn. 479; Runge v. Franklin (1889) 13 Am. St. Rep. 833; 72 Fex. 585; King v. McKissick (1903) 26 Fed. Rep. 215. There is a divergence of judicial opinion, however, upon the question whether allegations made in a criminal complaint are absolutely privileged, and it has been ruled that where one institutes criminal proceedings without intending to prosecute them in the regular course, but as a pretence to promulgate slander or to serve any other improper purpose, an action may be maintained for any libellous matter contained in them: McDavid v. Boyer (1897) 169 III.475; 48 N.E. 317. But the balance of authority is in favour of the theory of absolute privilege; though the view taken in the case last mentioned may possibly be defended on the ground that where a person prefers a complaint not intending to prosecute it but merely with a view to publish false and malicious statements, he really abuses the process of the Court which cannot be allowed to be utilised as a vehicle for the publication of defamatory statements. Ball v. Rawles (1892) 27 Am. St. Rep. 174; 93 Cali. 232; Harttook v. Reddick (1842) 38 Am. Deo. 141;6 Blackford 255; Laing v. Mitten (1904) 185 Mass. 233; Allen v. Crofoot (1829) 20 Am. Dec. 647; 2 Wendell 515; Vausse v. Lee (1833) 26 Am. Dec. 168; 1 Hill 197 and in the American Courts, the principle has been repeatedly applied as recognised in England in the cases of Johnson v. Evans (1800) 3 Esp. 32; 6 R.R. 809; Fowler v. Homer (1812) 3 Camp. 294; 13 R.R. 807; Seaman v. Netherclift (1876) 1 C.P.D. 540 on appeal; 46 L.J.C.P. 128; 2 C.P.D. 53; 35 L.T. 784; 25 W.R. 159; Dawkins v. Rokeby (1873) 8 Q.B. 255 at p. 266; 45 L.J.Q.B. 8; 33 L.L.T. 196; 23 W.R. 931; 7 H.L. 744; Munster v. Lamb (1883) 11 Q.B.D. 588 at p. 606; 52 L.J.Q.B. 726; 49 L.T. 252; 32 W.R. 248; 47 J.P. 805; Astley v. Younge (1859) 2 Burr. 807; 2 Ld. Ken. 536; Ravis v. Smith (1856) 18 C.B. 126; 25 L.J.C.P. 195; 2 Jur (N.S.) 614; 4 W.R. 506; 27 L.T. (o.s.) 106; 107 R.R. 236; Henderson v. Broomhead (1859) 4 H. & N. 569; 28 L.J. Ex. 360; 5 Jur. (N.S.) 1175; 7 W.R. 492; 118 R.R. 618 Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1892) 1 Q.B. 431 at p. 451; 66 L.T. 513; 40 W.R. 450; 56 J.P. 404; 61 L.Q.B. 499; Hodson v. Pare (1899) 1 Q.B. 455; 68 L.J.Q.B. 309; 47 W.R. 241; 80 L.T. 13; 15 T.L.R. 171. In so far as the Indian Courts are concerned, there is a divergence of judicial opinion on the subject. The language of exceptions 7 and 9 to Section 499 of the Indian Penal Code does not import such absolute immunity as is recognised by English Law; each of these exceptions uses the term 'good faith' as an element in the definition, and this is repeated in each of the illustrations annexed. Consequently, where a party to a proceeding in Court has used defamatory expression, the statement has been held punishable under the Indian Penal Code, when not made in good faith, i.e., with due care and attention. Queen v. Pursoram Dass 2 W.R. 36 Cr.; Greene v. Delanney 14 W.R. 27 Cr.; Kali Nath v. Gobinda Chandra Basu 5 C.W.N. 293; Giribala v. Prankrishto 8 C.W.N. 292 and Emperor v. Ganga Prasad 29 A. 685; A.W.N. (1907) 235; 4 A.L.J. 605; 6 Cr. L.J. 197. A strict adherence to statutory provisions may be defended on the ground mentioned by their Lordships of the Judicial Committee in Norendra Nath v. Kamalbasini 23 I.A. 18; 23 C. 563 namely, that a statutory enactment must receive its natural meaning and must not be frittered away by reference to what may be supposed to be the law in England or the antecedent law on the subject here. This view appears to have commended itself to the Court in Abdul Hakim v. Tejchandar Mukherji 3 A. 815; A.W.N. (1881) 81; Isuri Prasad v. Umrao Singh 22 A. 234; A.W.N. (1900) 46 and In re Nagarji Trikamji 19 B. 340. But in Civil suits for damages for defamation, as the Court is not fettered by any statutory provision, the Court is free to adopt or reject the English rule on the subject. In so far as the immunity of witnesses is concerned, which stands in England on the same footing as the immunity of a party, their Lordships of the Judicial Committee have broadly formulated the rule that they cannot be sued in a Civil Court for damages in respect of evidence given by them upon oath in a judicial proceeding, Gunnesh Dutt Singh v. Mugneeram Chowdhry 11 B.L.R. 321; 17 W.R. 283 and that principle has been repeatedly applied. Bhikumber Singh v. Becharam Sirkar 15 C. 264; Dawan Singh v. Mahip Singh 10 A. 425; A.W.N. (1888) 157; Manjaya v. Sesha Shetti 11 M. 477. In so far as the immunity of a party is concerned, judicial opinion is divided. The opinions expressed in Hinde v. Baudry 2 M. 13; Venkata Narasimha v. Kottayya 12 M. 374; Nathji v. Lalbhai 14 B. 97 and Golap Jan v. Bholanath Khetry 15 C.W.N. 917; 38 C. 880; 11 Ind. Cas. 311 support the theory of absolute privilege, accorded in the public interest to those who make statements to the Court in the course of and in relation to a judicial proceeding. On the other hand, the decisions in Abdul Hakim v. Tejchandar 3 A. 815; A.W.N. (1881) 81; Guru Dutt Sing v. Gopal Das 1 Agra H.C.R. 33; Shibnath v. Satcowree 3 W.R. 198; Augada Ram v. Nimai Chand 23 C. 867; H.P. Sandyal v. Bhaba Sundari Debi 15 C.W.N. 995; 14 C.L.J. 31; 7 Ind. Cas. 803 support the theory of a qualified privilege. To put the matter briefly, the divergence of judicial opinion between the representatives of the two different schools of thought, arises in this way: it is said, on the one hand, that the provisions of the Indian Penal Code negative the theory of an absolute privilege and that the same rule ought to be applied in civil suits for damages for defamation; it is argued, on the other hand, that the principle of English Law which represents the result of judicial experience for centuries, ought to be applied in so far as it has not been made inapplicable by statutory provisions to the contrary, and that the very fact that a party who has made a false and malicious statement in a judicial proceeding is liable to be criminally prosecuted, renders it unnecessary that he should be liable also in a civil suit for damages for defamation. It is obvious that a great deal may be urged in support of each of these conflicting views, and, as at present advised, I am not prepared to dissent from the rule recognised in England, not only for the weighty reason assigned in Cukler v. Dickson (1885) 4 Coke 146 but also for the additional reason that if suits of this description were allowed, it would be an encouragement to the institution of what must, in many instances, be mischievous and speculative litigation. It is not necessary, however, to decide the point finally for the purposes of the present litigation, because, as I have already held, the plaintiff is entitled to maintain this action as one for damages for malicious prosecution or malicious abuse of judicial process.

4. The result is that this appeal is allowed, the decree of the Subordinate Judge discharged and the case remanded to him for trial on the merits. The plaintiff is entitled to his costs in this Court; he will also have hearing fee in the Court below which we assess at ten gold mohurs. Under Section 13 of the Court Fees Act, we direct that the amount of the Court-fee paid by the plaintiff on the memorandum of appeal presented to this Court be refunded to him.

Beachcroft, J.

5. The two questions for our consideration are whether on the facts stated in the plaint a suit will lie for damages (1) for malicious prosecution, (2) for defamation.

6. With the first question my learned brother has dealt so fully that little remains to be said. 1 quite agree with him that the term 'prosecution' ought not to be interpreted in the restricted sense in which it is used in the Code of Criminal Procedure. It is argued that a contrary view has been taken in the case of Golap Jan v. Bholanath Khettry 15 C.W.N. 917; 38 C. 880; 11 Ind. Cas. 311. That case is clearly distinguishable from this, but if the learned Judges, who decided that case, intended to lay it down as a rule of law that no suit can lie for malicious prosecution unless the plaintiff was actually put on his trial for a criminal offence, I venture to think, with the greatest respect to them, that the view taken was too narrow. In Volume XIX of the Laws of England, edited by Lord Halsbury, at page 670, prosecution is thus defined: 'A prosecution exists where a criminal charge is made before a judicial officer or tribunal, and any person who makes, or is actively instrumental in the making or prosecuting of such a charge is deemed to prosecute it.' This would seem to suggest that there may be said to have been a prosecution even when no action at all has been taken against the plaintiff. For the purpose of the present appeal, it is unnecessary to say whether I am prepared to go to this length, for in fact action, detrimental to the plaintiff, was taken by the Magistrate, though that action did not take the form of a criminal trial.

7. The petition presented by the defendant on the 16th June was unquestionably a complaint within the meaning of Section (4)(h) of the Criminal Procedure Code. On that complaint, the Magistrate might have put the plaintiff on his trial for the offences of being a member of an unlawful assembly and of criminal intimidation. It is true the defendant asked only for action under the preventive sections of the Code. That, however, does not affect the question. If a person sets the criminal law in motion, it is no defence for him to say that the law took a direction which he did not anticipate and did not desire. The responsibility of the person begins with the presenting of the complaint, but it does not end with it and is not limited to the prayer contained in it.

8. The discussion whether the facts alleged amount to a prosecution is perhaps of a somewhat academical nature, for it is quite obvious that a suit will lie on those facts, and it is immaterial whether it is described as a suit for malicious prosecution or one for malicious abuse of the process of the Court.

9. In regard to the second question, I incline to the view that a suit for damages for defamation may be maintained.

10. The question of privilege in respect of defamatory statements has frequently occupied the attention of the High Courts in India and the decisions have, by no means, been uniform. For the purposes of the present appeal, it is unnecessary to consider cases in which merely the question of qualified privilege, by reasons of the person, who made the defamatory statement, having some interest in the subject-matter, has arisen. I shall accordingly confine myself to those cases in which the question of absolute privilege has been discussed. The English Law was enunciated by Lopes, L.J., in the case of Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1892) 1 Q.B. 431 at p. 451; 66 L.T. 513; 40 W.R. 450; 56 J.P. 404; 61 L.Q.B. 499: 'The authorities establish, beyond all question, this, that neither party, witness, Counsel, Jury nor Judge can be put to answer civilly or criminally for words spoken in office; that no action of libel or slander lies, whether against Judges, Counsel, witnesses or parties, for words written or spoken in the course of any proceeding before any Court recognised by law, and this though the words written or spoken were written or spoken maliciously, without any justification or excuse, and from personal ill-will and anger against the person defamed. This absolute privilege' has been conceded on the grounds of public policy to ensure freedom of speech where it is essential that freedom of speech should exist.' In India, the law as regards the privilege of a witness was declared by the Judicial Committee of the Privy Council, to be the same as that in England, as regards civil suits in respect of evidence given in a judicial proceeding: Babu, Gunnesh Dutt v. Mugneeram 11 B.L.R. 321; 17 W.R. 283. It is argued that parties to a suit are in the same position and entitled to the same privilege.

11. The expressions used by their Lordships in this case have been quoted in some cases to support the view that a person cannot be criminally prosecuted for defamation in respect of words uttered by him as witness in a judicial proceeding. On the question of criminal prosecution the views of the Courts have differed, but I can find no case in the Indian Courts, in which it has been decided that a party making a defamatory statement in the course of a judicial proceeding enjoys the absolute privilege of immunity from prosecution accorded by the English law. On the contrary, it has been decided in two of the High Courts that a party is liable to a prosecution for defamation in the cases of Queen v. Pursoram Dass 3 W.R. 45 Cr.; Kali Nath Gupta v. Gobinda Chandra Basu 5 C.W.N. 293 and Isuri Prasad Singh v. Umrao Singh 22 A. 234; A.W.N. (1900) 46; see also the remarks of Jardine, J., in Raghavendra v. Kashi Nath Bhat 19 B. 717 at p. 723.

12. It was on the ground that a statement, which might be the subject of a criminal prosecution for defamation could not be absolutely privileged so far as the Civil Courts are concerned, that this Court held, in the case of Augada Ram Shaha v. Nemai Chand Shaha 23 C. 867 that a defamatory statement in the pleadings in an action was not privileged. This decision was followed in the case of H.P. Sandyal v. Bhaba Sundari Debi 15 C.W.N. 995; 14 C.L.J. 31; 7 Ind. Cas, 803. To the same effect is the decision of Abdul Hakim v. Tej Chandar Mukherji 3 A. 815; A.W.N. (1881) 81 and the remarks of Jardine, J., in Raghavendra v. Kashi Nath Bhat 19 B. 717 at p. 723. To the contrary is the decision of Nathji Muleshvar v. Lalbhai Ravidat 14 B. 97 the remarks of the Madras High Court in Hinde v. Baudry 2 M. 13 and the decision of this Court in Golap Jan v. Bholanath Khetry 15 C.W.N. 917; 38 C. 880; 11 Ind. Cas. 311. The earlier decision of this Court does not appear to have been brought to the notice of the learned Judges who decided the last mentioned case.

13. It is clear that witnesses and parties stand on a very different footing. This was recognised in the case of Kali Nath Gupta v. Gobind Chandra Basu 5 C.W.N. 293; a witness can be compelled to give evidence and to answer any question relevant to the subject-matter of the suit, but the statements of a party in his pleadings are entirely within his own direction.

14. No doubt, the principle that the Courts should sanction no course which would have the effect of curtailing freedom of speech is one of general application, but freedom of speech must not be allowed to degenerate into license, and in the application of the principle we must, I think, look to the conditions obtaining in this country, so different from those in England and should not slavishly follow English precedents, I agree with the remarks of Straight, J., in Abdul Hakim v. Tej Chandar Mukerji 3 A. 815; A.W.N. (1881) 81 in this connection.

15. The strongest reason in favour of the English view appears to me to be that stated by Fry, L.J. in Munster v. Lamb (1883) 11 Q.B.D. 588 at p. 606; 52 L.J.Q.B. 726; 49 L.T. 252; 32 W.R. 248; 47 J.P. 805: It is not intended to protect malicious and untruthful persons, but it is intended to protect persons acting bona fide, who under a different rule would be liable, not Perhaps to verdicts and judgments against them, but to the vexation of defending actions.' But when it is borne in mind in how large a proportion of the pleadings in cases in this country, statements are made, which are not merely exaggerations, but deliberately false, I do not think a rule should be laid down which would give currency to the idea that a party has carte blanche to make any statement he likes, however defamatory. I should be extremely sorry to favour any view which would encourage what my learned brother aptly terms mischievous and speculative litigation, but I am not aware that the decision in Augada Ram Shah v. Nemai Chand Shah 23 C. 867 which has been the law in this Presidency for 16 years, has had that effect.

16. Against false statements in pleadings or in petitions there is, no doubt, this safeguard that a criminal prosecution for giving false evidence or for giving false information may be instituted with the sanction of the presiding officer or public servant, as the case may be, and in all cases of defamation whether the statement be true or false, a criminal prosecution for defamation may be instituted by the person aggrieved. Criminal prosecution will not, however, always provide a sufficient solatium for the injury caused, and though much may be paid for the view that this is a class of cases in which private interest must yield to the general interest of the public. I am not prepared to dissent from the view expressed in Augada Ram Shah v. Nemai Chand Shah 23 C. 867.

17. The difference of opinion will not, however, affect the result of this appeal, as we are agreed that the suit may be maintained as one for malicious prosecution or malicious abuse of judicial process.


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