GOPALANKUTTY NALR Vs. SANKUNNY EZHUTHASSAN

JUDGEMENT

(1.) I have no doubt that a proceeding taken by a magistrate under provisions like S.107 to 110, 133, 144, 145 and 488 of the Criminal Procedure Code is a judicial proceeding-see Babulal Parate v. State of Maharashtra AIR. 1961 Supreme Court 884 and State of Uttar Pradesh v. Kaushailiya AIR. 1964 Supreme Court 416; indeed, the contrary has not been urged before us. That being so, I should think that in the state of the Indian authorities (whatever to the contrary counsel for the respondent plaintiff might think he has succeeded in extracting from certain observations by Sellers and Devlin L. JJ. in Lincoln v. Daniels (1962) 1 QB. 237 - after all when, as in this case, the question is, what does public policy dictate under Indian conditions, Indian authorities must be of greater value) the per se defamatory statements made by the appellant defendant about the respondent plaintiff in a petition he submitted to the (Executive) First Class Magistrate, Ottapalam, with a view to initiating proceedings under S.107 of the Criminal Procedure Code True, he did not in terms pray that proceedings be taken under S.107 of the Code, but he did pray that immed ,ate action be taken to preserve the peace and the only way in which the magistrate could have done that was to take action either under S.107, or, since the dispute seems to have been over the possession of immovable property, under S.145. - he not merely called the plaintiff and his brother notorious bad characters, but said that their success in life was by blackmail and criminal breach of trust - are absolutely privileged: Golap Jan v. Bholanath Khettry ILR. 38 Calcutta 880, Re Muthusami Naidu ILR. 37 Madras 110, Chuni Lal v. Narsingh Das ILR. 40 Allahabad 34i and RamKirat v. Biseswar Naih AIR. 1933 Patna 35 - there seems to be no Indian authority to the contrary. The question then is whether the same absolute immunity is available in respect of the copy of the petition he presented the same day to the Sub-Inspector of Police, Ottapalam. I think it is, on the principle underlying decisions such as: Watson v. M 'Ewan 1905- AC. 480 - statement made in the course of a proof taken by a solicitor with a view to examine the maker as a witness in a pending judicial proceeding, in other words, a statement made by a potential witness as Coutts-Trotter C. J. rightly put it in San jivi v Koneri AIR. 1926 Madras 521, the criticism whereof by Beaumont C. J. in Gangappagouda v. Basayya AIR. 1943 Bombay 167 seems to proceed on the misapprehension that the statement considered in O 'Conor v. Waldron AIR. 1935 P. C. 3 was a statement made by a witness before a commissioner holding a statutory enquiry as a preliminary to a prosecution for a criminal offence whereas in fact it was a statement made by the Commissioner himself; San jivi v. Koneri AIR. 1926 Madras 521 - statement made to a police officer from whom a magistrate had called for a report in connection with a proceeding under S.107 of the Criminal Procedure Code; and Madhab Chandra v. Nirod Chandra AIR. 1939 Calcutta 477, Bapalal & Co. v. V. Krishnaswami Iyer AIR. 1941 Madras 25, Lachhman v. Pyarchand AIR. 1959 Rajasthan 169 and Bira Gareri v. Dulhin Samaria AIR. 1962 Patna 229 statements made in the course of information given under S.154 of the Criminal Procedure Code. And, if there is anything said in Md. Samiullah Khan v. Bishu Nath AIR. 1928 Allahabad 316, or Mayr v. Rivaz ILR. (1943) 1 Cal. 250, or T. Ayyangar v. K. S. Ayyangar AIR. 1957 Madras 756 that points to the contrary, I must express my respectful dissent.

(2.) THE principle is that absolute immunity is not confined to statements made coram judice but extends to statements made in the course of proceedings so closely related to a judicial proceeding as to constitute a step in or towards such a proceeding and, therefore, proceedings forming part of the administration of justice. THE true position is thus stated in Halsbury: Third Edition, Volume 24, pages 51 and 52, Second Edition, Volume 20, pages 465 and 466.

(3.) I would allow this appeal and dismiss the plaintiff's suit leaving the parties to bear their own costs throughout. That, of course, means that the memorandum of cross objections filed by the plaintiff claiming a sum of Rs. 5,500 as damages (as claimed by him in the plaint) instead of the sum of Rs. 500 awarded to him by the lower appellate court has to be dismissed. Mathew, J:- 1 This is a second appeal by the defendant from a decree awarding damages in a suit for recovery of damages for defamation. 2 The defendant filed a petition Ext. A1 on 26 10 1961 in the Court of the Executive First Class Magistrate, Ottapalam, alleging that the plaintiff and his brother are "two notorious bad characters", that their "success in life was by blackmailing and criminal breach of trust", and that they are making frantic efforts to encroach on his property on that night or next morning and have hired bad characters to assault him if he resisted them; and prayed for maintenance of peace, by maintaining the status quo till the re-survey of the property. The petition runs as follows: