BIRA GARERI Vs. DULHIN SOMARIA

JUDGEMENT

(1.) This is an appeal by the defendant under Clause 10 of the Letters Patent against the decision of a learned single Judge of this Court. It arises out of a suit filed by the plaintiffs respondents claiming damages for the alleged defamatory statements made by the appoint in Ext 3 a written information bearing the thumb impression of the appellant sent to the Police, it appears, with the object of taking action and instituting a case against the respondents.

(2.) One Mewa was a cousin of respondent No. 2. Mewa's wife suddenly died. It was suspected that her death was due to poisoning. The appellant informed one Sheopujan Ram, the scribe of the written information sent to the Police, that Mewa's wife had been poisoned by respondent No. 1 and she and her two sons, respondents 2 and 3, had become lapata (scares) after poisoning her (Mewa's wife), as a result of which she had died. The Police treated the written information as a first information and ins instituted a case under Section 302 of the Penal Code against the respondents. The case, on investigation, was found to be false; a final report was submitted; action was taken against the appellant under Sections 182 and 211 of the Penal Code but the said proceedings were also ultimately dropped. The plaintiffs thereafter instituted the money suit claiming damages to the extent of Rs. 1000/- for defamation. The learned Munsif decreed the suit in part and awarded a sum of Rs. 150/- only by way of damages to plaintiff N0. 1 alone and did not grant any damages to respondents 2 and 3. Two appeals were filed in the lower appellate Court one by the defendant and the other by the plaintiffs. The learned Subordinate Judge allowed the defendant's appeal and dismissed that of the plaintiffs. He took the view that the statement contained in the written information to the police was protected by the doctrine of absolute privilege and, therefore, the suit was dismissed even though the finding of the learned Munsif that the appellant's statement was take and was actuated by malice was not upset. Two second appeals were filed in this Court--one each by either side and the learned single Judge bus disposed of the two appeals by allowing them in part, whereby he has set aside the decree of the lower appellate Court and restored that of the trial Court. Hence this appeal by the defendant. There is no appeal under Letter's Patent by the Plaintiffs.

(3.) Although Mr. Kailash Roy appearing in support of the appellant at one stage faintly argued that the statement made by the appellant in Ext. 3 was neither deliberately false nor was it actuated by malice and so, even if it is covered by the principle of qualified privilege no decree for damages could be passed, he ultimately did not pursue this matter feeling the difficulty on the findings of fact arrived at by the courts below. The only point which has been argued is as to whether the appellant enjoyed the protection of absolute privilege in respect of the defamatory statement made by him in the information sent to the Police.