THEKKITTIL GOPALANKUTTY NAIR Vs. MELEPURATH SANKUNNI EZHUTHASEAH

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 immediate 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: Golaplan v. Bholanath Khettry ILR 38 Cal. 880, Re Muthusami Naidu ILR 37 Mad. 110 , Chuni Lal v. Narsingh Das ILR 40 All. 341 and Ram Kirat 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:

(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.) That the police have independent powers for preserving the peace and that the defendant might have had the concurrent object of invoking those powers cannot deprive the statement he made in the copy presented to the Sub Inspector of Police of the absolute privilege that attaches to it, if indeed it was essentially a step in the proceeding before the magistrate.