M. Neelakantadas vs M. Gopinathan

K. Ramamoorthy, J.—The plaintiff is the appellant. He filed a suit for damages claiming Rs. 10,000/- with interest at 6% per annum against

the defendant. The Courts below dismissed the suit, and therefore, the plaintiff is before this Court. The facts which had given rise to the second

appeal are not very much in dispute. Before I advert to the point of law that I have to deal within this matter, I have to notice a few facts. The

plaintiff is an Advocate. There was no love lost between the plaintiff and the defendant and their neighbours. The plaintiff had a sister by name

Devaki. She was suffering from illness for a long time and she was a spinster. In spite of the best treatment given to her she died on 29.12.1976.

On 30.12.1976 the defendant gave a complaint to the police stating that there was difference of opinion between the plaintiff and his deceased

sister Devaki. In the night of 28.12.1976 there was a quarrel between the plaintiff and his sister and the next day he came to know that Devaki

died in the night of 29.12.1976 under suspicious circumstances. In short, the complaint given by the defendant to the police was that the plaintiff

and his family members had done away with Devaki and the body of the deceased was disposed of secretly. Thuckalay Police registered a

criminal case in Cr. No. 1848 of 1976 of Thuckalay Police Station. The defendant gave such a false information without any justification and

knowing fully well that, if the police complaint is given the news will spread all over Tamil Nadu and the news item will appear in the newspapers

next day. Pursuant to the complaint, given by the defendant, the police set in motion the criminal law and ultimately, the police dropped further

proceedings being convinced that the complaint had emanated from the defendant because of the enmity between the defendant and the plaintiff

On these allegations, the plaintiff laid the suit stating that the defendant had defamed the name of the family and he and his family members were put

to mental agony and pain and his status as an Advocate is very much affected and he came to a low ebb in the eyes of the brother members of the

bar. The plaintiff sent a lawyer''s notice to the defendant on 5.12.1977 and the defendant sent a reply on 14.12.1977 justifying his action.

The defendant filed a written statement contending inter alia the plaintiff has to prove that his sister was suffering from asthma, that the defendant

had no direct knowledge of the cause of the death of his sister, that he was not aware of the circumstances under which Devaki died, that it is for

the plaintiff to prove that the sister was given treatment for ailment, that the defendant did not give any statement before the Thuckalay Police on

30.12.1976, that the defendant did not give any signed statement before the Police Station and that during investigation the police got the

signatures of the defendant in various papers. It is further stated in the written statement that whatever facts stated by him before the police during

investigation were passed on hearsay reliable information. According to him no false information was given by him to defame the plaintiff and that

he was not at all responsible for publication and that he was not aware of the same. The plaintiff has no active practice as an advocate and he was

not affected much in his practice by this action and that the plaintiff and the members of his family were not put to any loss of reputation, as alleged.

Lastly, the defendant contended that the amount claimed is excessive.

The plaintiff filed Ex. A-1 a paper publication in ""Dinamalar"" dated 1.1.1977 which is a Tamil publication, Ex. A.2, a similar Tamil Publication in

Dhinathanthi"" dated 1.1.1977, Ex. A3, a paper publication in ""Malaimurasu"", an evening Tamil daily dated 2.1.1977, Ex. A4, Death extract

certificate dated5.4.1977,Ex. A6 reply notice dated 14.12.1977, Ex. A7 statement of the defendant given before the Sub-Inspector of Police,

Thuckalay, dated 30.12.1976, Ex. A8 first information report dated 30.12.1976, Ex. A9 notice to the compliant dated 31.03.1977 and Ex. A10

signature of the Deputy Superintendent of Police, Thuckalay, in the grave Crime Report No. 9/78 of Thuckalay dated31.12.1976. Besides filing

these documents, the plaintiff examined himself as P.W. 1 and one A. Kumaresan as P.W. 2.

The defendant did not file any documents. He examined himself as D.W.1. Learned Subordinate Judge, Padmanabhapuram, observed in

paragraph 13 of the judgment.

Consideration of the arguments of the Learned Counsel for both sides makes it clear that it is true that there is enmity due to litigation between the

family of the plaintiff and the family of the defendant for a long time.

Learned Subordinate Judge further observed in the same paragraph.

Therefore, in such circumstances in the present case, though the defendant had uttered defamatory statements under Ex. A7 about the death of the

plaintiff''s sister, such statement is a privileged statement as referred supra and the same could not have given a cause of action for the plaintiff for a

suit for damages for defamation. Therefore, in such circumstances I hold that the plaintiff is not entitled to any damages as claimed in the plaint.

The learned Subordinate Judge has noted the two facts, one is that there was enmity between the plaintiff and the defendant, and the other is that

there was a statement by the defendant to the police. Applying the law referred to by the learned Subordinate Judge in the case mentioned in the

said judgment, learned Subordinate Judge dismissed the suit. As regards costs he directed the parties to bear their respective costs.

The plaintiff preferred A.S. No. 211 of 1978 before the District Judge, Kanyakumari at Nagercoil. The defendant preferred cross appeal

claiming costs. Learned District Judge by Judgment dated 12.2.1981 concurred with the view taken by the learned Subordinate Judge, both on the

plaintiff''s claim and on awarding costs. Learned District Judge confirmed the judgment as I had mentioned in the earlier part of the judgment and

noted the following facts:-

Point in the appeal:- The facts proved or which cannot be denied are these:-

The appellant (Plaintiff) and the respondent (defendant) are neighbours. The house of the respondent is just 150 feet away from the house of the

appellant. There had been litigation between the two families since 1958 and they are on inimical terms. Devaki was the younger sister of the

appellant (P.W. 1). She took ill on 29.12.1976 and she was taken to the hospital at Palliadi for treatment. She died in the evening of the same day.

Her body was cremated the same night. The respondent D.W.1 preferred a complaint to the Thuckalay Police under the original ofExt.A7 on

30.12.1976, before P.W. 2 the then S.I. of Police Thuckalay. On the basis of the said complaint, P.W. 2 prepared the printed F.I.R. under the

original of Ext.A8. The case was investigated and ultimately the complaint was referred. Ex. A9 dated 31.3.1977 is the copy of the refer notice

given to the respondent herein.

The original of Ext.A7 has given the cause of action for the appellant to file the present suit Admittedly, the deceased Devaki was unmarried and

she was aged 25 at the time of her death. The gist of the allegations in the abovesaid complaint against the appellant is, that Devaki was often

quarrelling with her elder brother Neelakantadas, the appellant herein demanding partition, that about a month prior to her death, there was

partition and Devaki got a share, that she was pestering her elder brother the appellant herein to get her married to an educated and employed

bridegroom and since she did not succeed in her attempts, she became frustrated and on that account, there was wordy quarrel on the night of

29.12.1976 between her and the appellant and the noise of her cries were heard and that since Devaki died on 29.12.1976, her brothers

cremated her the same night and he came to know about it only on the morning of 30.12.1976 and that it is a case of suspicious death. The

respondent in the said complaint seems to suggest that the appellant herein, his brothers and brother-in-law have murdered Devaki and cremated

her the same night and it is a case of suspicious death.

In paragraph 9, learned District Judge has come to the definite conclusion that,

The allegation per se in the abovesaid complaint is defamatory.

But, learned District Judge has posed the question whether the complaint containing defamatory allegations made to a police officer is absolutely

privileged.

I have heard Mr. Srikumaran Nair, Learned Counsel for the appellant and Mr. P. Gopalan for the respondent.

Mr. Srikumaran Nair contended that the defendant cannot claim any absolute privilege and the learned District Judge has completely

misunderstood the scope of privilege that has to be claimed in such cases. Learned District Judge has come to the conclusion that the defamatory

statement made to a police is absolutely privileged and that cannot be made the basis for allegations and the doctrine of absolute privilege bars any

enquiry into the motive of the person who made the complaint. Learned District Judge, according to the Learned Counsel has completely

misapplied the law by stating:

The plea of absolute privilege means that by a sort of legal fiction, the law, owing to compelling consideration of public policy invests statements

made upon certain occasions with a special protection so that all statements made on such occasions even though they may be defamatory, cannot

be made the subject matter of, litigation in courts of law, and no action for defamation J will lie in respect of them.

Further, learned District Judge while referring to the publication has observed that there is no proof that the publications were made at the instance

of the defendant and therefore, in the light of the ratio decided in the decision referred to, the statement made to a police officer is absolutely

privileged.

Having regard to the circumstances of the case and the findings rendered by the Courts below, I could not completely accept on the prima facie

consideration of the matter that the lower courts were right, but at the same time while listening to the arguments of Learned Counsel for the

appellant, I could not have a complete hand over the matter with reference to the principles stated in the cases and therefore, I wanted to have an

examination of the cases by me would persuade me to take a different view of the matter, because, the question of privilege depends upon the act

complained of on the basis of which the plaintiff claims to have been defamed by the defendant Therefore, drawing analogy from the facts of the

decided case, we cannot come to the conclusion on the facts of this case that the defendant is entitled to the privilege.

Section 182 of the Indian Penal Code has to be borne in mind. The marginal note of the Section reads:

False information with intent to cause public servant to use his lawful power to the injury of another person.

The section reads as follows:

Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely

that he will thereby cause, such public servant -

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given

were known by him, or

(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either

description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Therefore, the ingredients of the offence mentioned in the Section are:

i. give a false information,

ii. to public servant,

iii. the informant knew that the information is believed to be false, and

iv. he gave the information in order to annoy the public servant to behave in a way in which he ought not to behave when the true state of facts

were known to him.

Therefore, it is clear on the facts of the case before me that the defendant ought to come within the perspective of Section 182 of the Code.

Therefore, here is a person who has committed an offence u/s 182 of the Code and that is the finding given by the courts below on the basis of Ex.

A7. Therefore, the question 1 asked myself is whether the person who could be found guilty of an offence under the Indian Penal Code could take

umbrage under the obsessive description of an unknown phrase ""absolute privilege.

Learned Counsel Mr. P. Gopalan, brought to my notice the decision in Bapalal and Co. Vs. A.R. Kishnaswami Aiyar, In that case, a medical

practitioner at Madras who was the respondent took some diamonds from the appellant''s firm of jewelers, in April, 1936. In May, the appellants

presented the respondent with an invoice for their cost. By 27.9.1936 the money had not been paid by the respondent On that date, the appellants

sent a letter to the Inspector of Police, Flower Bazaar Police Station, which is claimed by the respondent to be defamatory, as being equivalent to

a charge against him of criminal breach of trust. In the written statement the appellants contended that this communication was privileged, having

been sent bona fide with the sole purpose of protecting their own interests. The City Civil Court held that the occasion was privileged and if the

letter were in fact bona fide the suit must be dismissed, but it held further that the letter did not state the true facts. The suit was decreed. On

appeal, it was contended that the letter in question was privileged absolutely and consequently, the civil court was precluded from adjudicating

upon the question whether it was sent maliciously or not. King, J. observed.

On a careful consideration of the authorities I think this contention must prevail. Principal authorities to which I have been referred to in the course

of the arguments are Sanjivi Reddi vs. Koneri Reddi (49 Mad 315), Golap Jan vs. Bholanath (38 Cal 880), Madhab Chandra vs. Nirode Chandra

(I.L.R.) 1939 (1) Cal. 574 and Majju vs. Lachman Prasad (46 All.671). All these authorities are unanimous in holding that the Common Law of

England which grants an absolute privilege to all statements made in the witness box should be applied in India. That privilege extends in England to

the preliminary examination of witnesses, by a solicitor to find out what they can prove. The question then is how far this principle derived from

Watson vs. M. Ewan (1905 A.C.480) should be extended. 49 Madras 315 (cited supra) dealt with a complaint to a Magistrate requesting him to

take action under S. 107, Criminal P.C. and to statements made by the complaint to a police officer investigating that complaint. Both were held to

be absolutely privileged. No actual evidence was given in this case, as the Magistrate eventually refused to take any action under S. 107. In 3 Cal.

880 (cited supra) a complaint laid before a Magistrate for criminal breach of trust which led to no trial, but was dismissed under S. 203, Crl. P.C.

was held to be absolutely privileged. In ILR (1939) 1 Cal. 574 (cited supra) it was held that both a report to the police alleging the commission of

a crime and evidence given in court in support of the accusation were absolutely privileged. In 46 AI1.671 (cited supra) a distinction was drawn

between a complaint to the police which in fact led to judicial proceedings, and one which did not. A complaint in the latter case was held not to be

privileged.

Learned Judge concluded by saying:

I am accordingly of opinion that the weight of authority is in favour of the view that a complaint to a police officer from its very nature as a

statement which the complaint is prepared later, if called upon to do so, to substantiate upon oath is absolutely privileged.

The appeal by the plaintiff was dismissed by the learned Judge.

In Pedda Sanjivi Reddy and Another Vs. Kondasari Koneri Reddi, the view taken was that all statements made by a potential witness as a

preliminary to going into the witness-box are equally privileged with the statement made when actually in the box in the Court.

In V. Narayanan vs. F. Subbanna (A.I.R. 1975 Kar 162) the view taken by the learned single Judge is that defamatory statements made in

complaint to a police officer are absolutely privileged and no action in damages can lie regarding such statements. Alagiriswami, J. (as he then was)

had an occasion to deal with the point in K. Ramdass Vs. P. Samu Pillai, and held that a complaint to a police officer from its very nature, as a

statement which the complaint is prepared later, if called upon to do so, to substantiate upon oath, is absolutely privileged and no action for

defamation in respect thereof is maintainable.

Learned judge relied on Pedda Sanjivi Reddy and Another Vs. Kondasari Koneri Reddi, Learned Counsel relied on the judgment Maroti

Sadashiv and Others Vs. Godubai Narayanrao and Others, wherein Dator, J. observed as follows.

A statement, if made before an officer who was not acting in judicial capacity or who was not exercising the attributes of a court cannot be said to

be absolutely privileged. Hence, defamatory statements made before the police officer in the course of the investigation carried on under Criminal

P.C. cannot be regarded as absolutely privileged, but only a qualified privilege attached to them which is liable to be destroyed by proof of malice.

Lower appellate court has referred to this judgment and has referred to the view taken by this Court earlier.

On hearing Mr. Sreekumaran Nair, Learned Counsel for the appellant, I reacted very sharply and felt that the act of the defendant was defamatory

and he cannot claim absolute privilege. But, in the light of the view taken by this Court, I do not want to take a different view and the Learned

Counsel for the appellant did not produce any weighty authority which can persuade me to differ from the view taken by this Court on the earlier

occasions. Therefore, I have to confirm the judgment an decree of the Courts below. The Second Appeal is dismissed. No costs.