THIRUMALIRUNJOLAIMALAI AYYANGAR Vs. K SARANGAPANI AYYANGAR

JUDGEMENT

(1.) IN these two appeals a plea of absolute privilege is taken in defence to an action by the two plaintiffs (in Order S. Nos. 139 and 140 of 1947 on the file of the district Munsif of Madurai taluk at Madurai) who are brothers, in respect of certain defamatory statements alleged to have been made against the plaintiffs contained in a petition Ex. A. 1 dated 19-2-194" sent by the 2nd defendant along with several others to the Deputy Inspector-General of Police, Southern Range, madurai. Copies of this petition were sent to the District Superintendent of Police, madurai South and to the District Magistrate, Madurai. The allegations were enquired into by the Circle Inspector of Police, Tirumangalam and on his report the District Superintendent of Police, Madurai South, made an endorsement on the petition that the allegations mentioned in the petition Ex. A. 1 were enquired into and found to be false and frivolous and the complainant, who is the 2nd defendant, was warned against sending such petitions in future. The courts below held that the allegations made Ex. A. 1 were per se defamatory and found against the plea of absolute privilege. They granted a decree for damages rs. 260 in each of these suits.

(2.) IN support of that contention, principle of law applicable to such cases has been referred to and the learned counsel for the appellant relied on the decisions in bapalal and Co. v. Krishnaswami Iyer, ILR 1941 Mad 332; (AIR 1941 Mad 26) (A), and Vattappa Kone v. Muthukaruppan Servai, 1941-1 Mad LJ 200: (AIR 1941 Mad 538) (B ). In the earlier case the plaintiff (respondent), a medical practitioner, was charged with having taken some diamonds, by the appellants who sent a letter to the Inspector of Police. This letter, in a suit for damages for "defamation was claimed by the respondent to be defamatory as being equivalent to a charge against him of criminal breach of trust. The appellants contended that the communication was privileged. It was held that the complaint to the police officer, being from its very nature a statement which the complainant was prepared later, if called upon to do so, to substantiate upon oath, was absolutely privileged. In that decision reliance was placed upon several decisions of this court and other High Courts where the principle of common law of england which grants an absolute privilege to all statements made in the witness box was held to be applicable in India and that privilege extended in England to the preliminary examination of witness, e. g. , by a solicitor to find out what they can prove vide Watson v. Mewan, 1905 AC 480 (C ). The other case referred to in that decision is Sanjivi Reddi v. Koneri Reddi, ILR 49 Mad 315: (AIR 1926 Mad 521) (D), which dealt with a complaint to a Magistrate requesting him to take-action under Section 107 Crl. P. C. , and to statements made by the complainant to a police officer investigating that complaint. Both ' were held to be absolutely privileged.

(3.) THE decision in 1941-1 Mad LJ 200: (AIR 1941 Mad 538) (B), followed the view taken by King J. , in ILR 1941 Mad 332 (AIR 1941 Mad 26) (A ). In that case a verbal complaint was made by the defendant against the plaintiff to a village magistrate charging the plaintiff with the offence of robbery. The village Magistrate sent a report on, the same day to the police and to the Stationary Magistrate. The magistrate ordered, an enquiry by the police who subsequently made a report that the complaint was false. The plaintiff was not even summoned. The Magistrate thereupon declined to take any further action and the proceedings were dropped. Plaintiff then filed a suit for damages for malicious prosecution. It was held that as the plaintiff was not prosecuted and as the occasion was privileged, no action for defamation would lie.