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Allahabad High Court
Mohammad Samiullah Khan vs Bishu Nath on 4 July, 1927
Equivalent citations: AIR 1928 All 316
Author: Sen


Sen, J.

1. This is plaintiff’s appeal from the decree of the learned Subordinate Judge of Cawnpore, dated 30th September 1924, dismissing his suit for damages against Bishunath, defendant, founded upon certain defamatory statements made by the defendant against the plaintiff. The plaintiff belongs to a respectable family and is a man of substance. The defendant is a tenant in the plaintiff’s zamindari. Strained relations had existed between the parties for some time. The defendant had addressed a petition to the District Magistrate of Fatehpur through his son-in-law, Mukatdhari, on 9th February 1922. This has been marked as Ex. 1 of the Munsif’s record. A second petition was addressed to the Sub-Inspector of Khakraitu through the same son-in-law and on the same date. This has been marked as Ex. 2. These petitions contained a number of serious imputations against the plaintiff. A Sub-Inspector, Faruq Ahmad, was deputed to investigate into the matter. During the progress of the investigation a third petition was submitted by the defendant and delivered to the investigating officer on 21st February 1922. This was signed by the defendant Bishunath and also by Mukatdhari. This document has been marked as Ex. 14.

2. I have been told that all the three petitions contained in substance the same imputations. The learned Munsif has reproduced in his judgment the contents of Ex. 14:

All these persons (Samiullah Khan and others) rushed up to my house, six of them got at my door and some to my well, and from both the sides some got up to my house, got hold of my son-in-law, twisted his hand and snatched away six gold mohars from his person and delivered them to Samiullah Khan and persons who were present at my door, set fire to my house and threw brick bats and took away my son-in-law fastened in a rope…. I charge them for extortion and forcibly taking of gold mohars and wrongfully imprisoning and taking my son-in-law.

3. The three petitions, one after the other, illustrated the attitude of the defendant. His action was deliberate and determined, so that he might be sure of his victim without any possibility of missfire.

4. The Sub-Inspector sent up his report that the charges against the plaintiff were unfounded and false.

5. The defendant was prosecuted under Section 182, I.P.C. He was convicted and sentenced to three months rigorous imprisonment and a fine of Rs. 50 in the criminal trial. The defendant put up a bold front and admitted having made all the three petitions already alluded to.

6. In the present action the plaintiff alleges that the statements of the defendant were false and malicious, and that he was defamed, degraded and put to mental worry. He claimed Rs. 1,000 as compensation from the defendant.

7. The pleadings in the case were very far from satisfactory. The essential particulars were not set out in detail, nor the facts narrated in their due chronological sequence. The plaintiff ought to have set out with distinctness the statements in the three exhibits separately which were libellous, and he ought to have scrupulously avoided any paraphrases circumlocution or argument.

8. At a later stage the plaintiff was required to submit further particulars, and this he did on 2nd August 1923. But in the document submitted by the plaintiff he does not give all the details necessary, and the document is more apologetic than informing. The trial Court should have insisted upon the particulars being submitted with greater precision so that the statements complained of as defamatory in all the three petitions separately should have been marked off into distinct paragraphs and not jumbled together.

9. This defect, however, did not prejudice the trial of the suit in any way. The defendant knew the lay of the land. Moreover, all the three petitions were placed on the record and separately exhibited.

10. The defendant, in his written statement dated 7th May 1923, pleaded justification. He further pleaded that the statements were privileged, that he had been convicted by the criminal Court and his conviction absolved him from civil liability, that the plaintiff suffered no damage and that the compensation claimed was excessive.

11. In his supplementary written statement, dated 6th August 1923, the defendant made a complete volte face. He disowned having made any of the three petitions and in fact fastened the authorship upon his son-in-law Mukatdhari, who, it was said, without informing, him and without his authority, had addressed the three petitions.

12. In the course of proceedings, dated 20th September 1925, the defendant denied having made any report or complaint against the plaintiff either through his son-in-law Mukatdhari or through anybody else.

13. At a later stage, when the defendant was on his oath he stated that his third petition presented to the investigating officer was not a voluntary act. It is true he signed the petition, but he was coerced to do so by threats from the investigating officer.

14. Statements like these are not calculated to inspire confidence as to the bona fide nature of the defence or the character of the defendant. I entertain no doubt that the defendant was a thoroughly dishonest person and was not to be depended upon. The learned Munsif gave the plaintiff a decree for Rs. 400. He held that, so far as the complaint addressed to the District Magistrate was concerned and which was embodied in Ex. 1, it, could not form the basis of a civil suit for damages-not upon the ground that the complaint was not made by the defendant or that the complaint was not false but because the said statement bore the seal of absolute privilege, and consequently could not afford basis for a civil action. As to the other two petitions, he found that the defendant had made them or caused them to be made, that the statements were grossly libellous and false, that there was no justification for them in law or in fact and that the plaintiff had by reason of those libels “suffered socially, physically and mentally to some extent,” The defendant appealed, and he reiterated the pleas taken by him in the trial Court. But the noticeable feature in his grounds of appeal is that on the one hand he pleaded justification; on the other hand he denied that any of the petitions was either made by him or made at his instance.

15. At the hearing of the appeal in the Court below only two pleas were urged: (1) the reports to the Sub-Inspector (Exs. 2 and 14) were privileged statements: and (2) even if they were not so privileged the defendant having undergone his trial in the criminal Court, been convicted and sentenced to imprisonment, no further action could be taken against him in a Court of civil jurisdiction so as to fasten upon him liability in the shape of damages.

16. The learned Additional Subordinate Judge held, in agreement with the Munsif, that the complaint to the Magistrate (Ex. 1) was absolutely privileged and in support of his view referred to the Pull Bench ruling in Chhuni Lal v. Narsingh Das [1918] 40 All. 341. He further held that there was no difference in principle between a complaint addressed to a criminal Court and a report made to a Sub-Inspector. They were on the same footing, and, therefore, the reports to the Sub-Inspector were absolutely privileged and as such could form no basis for a civil action. On the second point, he held upon the authority of Gopal Chander v. Grish Chander 25 W.R. 22, that the defendant having been convicted by the criminal Court for having made a false report the civil Court was not bound as a matter of law to award damages to the plaintiff for the wrongful act of the defendant, the plaintiff not having proved that he had suffered any actual damage. In the result, he allowed the defendant’s appeal, and dismissed the plaintiff’s suit. In appeal before this Court it has not been seriously argued that, however defamatory the statements contained in the complaint addressed to the Magistrate on 9th February 1922, it could in law constitute an actionable wrong. But what was strenuously argued was that the statements made to the police officer in Exs. 2 and 14 were not privileged statements, and that the plaintiff’s suit should not have been dismissed on the bare ground that he had failed to tender evidence of actual damage.

17. It is settled law that defamatory statements contained in a complaint addressed to a Magistrate cannot form the basis of a suit for damages in a civil Court. The rule is founded upon broad principles of public policy. The Magistrate is a judicial officer. The complaint made to him is the initial step which gives rise to a judicial proceeding. If the charges preferred by the complainant turn out to be extravagant, reckless or false, there is the long arm of law to punish the offender and avenge public justice. He can be prosecuted for lodging a false complaint or for committing perjury. But it is the policy of law that no party, counsel or witness in any judicial proceeding should at any time be harassed with the thought that he might be exposed to the risk of a law suit. In this respect the law in India has been shaped differently from the law of England, which gives a complete protection civilly or criminally.

18. It ought to be remembered that the jurisdiction of the civil and criminal Courts are far apart. The law administered, the procedure followed, and the end and the objective of the litigation before the two tribunals are completely different. The difference between a criminal case and a civil suit founded upon libel is a difference not merely of form, but is one of substance. Section 499, I.P.C., grants only a qualified privilege to the accused person. If a party is within the recognized limits he is safe. If, however, his statements are reckless, malicious or false, he place3 himself thereby within the grip of law which is not a comfortable situation.

19. Professor Holland, in his work on jurisprudence, observes:

The distinction between these wrongs which are generally called torts and those which are called crimes may at first sight appear to be a fine one. The facts and circumstances will in fact, from one point of view, constitute a tort while from another point of view they amount to a crime…. It is sometimes alleged by books of authority that the difference between a tort and a crime is a matter of procedure, the former being redressed by the civil while the latter is punished by the criminal Courts. But the distinction lies deeper, and is well expressed by Blackstone, who says that torts are an infringement or privation of the private or civil rights belonging to individuals considered as individuals; crimes are a breach of public rights and duties which affect the whole community considered as a community.

20. The civil liability of a person arising from defamation is to be determined by tests and standards different from these which are acceptable to the criminal Courts, and the extent of the privilege which may be claimed by the accused person in a criminal Court is necessarily confined in this country to the limits imposed by the Indian criminal law. This distinction was emphasized and appreciated in the case reported in Chunni Lal v. Narsingh Das [1918] 40 All. 341, where it was held that statements, if defamatory, contained in a petition addressed to a Magistrate, might not be absolutely privileged for a criminal Court, but the privilege was absolute in a Court of civil jurisdiction.

21. The reason is not far to seek. The action for damages for defamation is not the creature of statute. In the absence of statutory law one has to follow the broad principles of justice, equity and good conscience for guidance. Lord Hob-house is reported to have observed in Waghela Raj Sanji v. Shekh Musludin [1887] 11 Bom. 551:

The matter must be decided by equity and good conscience, generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances.

22. In every civilized society a man’s good name has for centuries without number been recognized as property and an asset of great value; and no man is allowed to play fast and loose with the reputation of another. In the jurisprudence of the Bast and the West defamation is held in abhorrence and considered to be a tortious wrong, and all the text-writers and eminent Judges are in full accord as to the principles which should determine the liability of a person who without just cause invades the good name of another.

23. The law has been thus stated by Odgers on Libel, 5th edn., p. 361.

The mere fact that the words now proved are admitted to be false is no evidence of malice unless evidence is also given by the plaintiff to show that the defendant knew they were false at the time of publication…. Such accusations must always be made in the honest desire to promote the ends of justice and not with a spiteful or malicious feeling against the person accused nor with a purpose of obtaining any indirect advantage to the accuser, nor should serious accusation be made recklessly or want only. They must always be warranted by some circumstances reasonably arousing suspicion.

24. Sir Hugh Fraser, in his compendium of the Law of Torts (10th edn., 1921, p. 160), gives some of the cases of qualified privilege, that is, cases in which the plaintiff on proof of malice is entitled to succeed. Amongst the cases so enumerated are: (1) when the circumstances are such as to cast on the defendant the duty of making the communication to a third party; (2) when the defendant has an interest in making the communication to a third person and the third person has a corresponding interest in receiving it.

25. Sir Frederic Pollock remarks in his Law of Torts, 11th edn., p. 272:

Communications addressed in good faith to a person in a public position for the purpose of giving information to be used for the redress of grievances, the punishment of crime or the security of public morals, are privileged, provided the subject-matter is within the competence of the person addressed.

26. The matter has been the subject of judicial pronouncements both in this country and abroad. Lord Esher, M.R., in Hebdich v. Macilwaine [1894] 2 Q.B. 54(58) observes:

Where the defendant claimed privilege, it was for him to prove that the occasion was privileged. If the defendant succeeded in so proving the burden of showing actual malice rested upon the plaintiff; but where the defendant initially failed to prove that the occasion was privileged the plaintiff was not called upon to prove actual malice.

27. In the leading case of Clarkes v. Molyueux [1842] 3 Q.B.D. 237 at p. 246) Brett, L.J., is, reported to have said:

Malice does not mean malice in law… but only malice, that which is popularly called malice. If a man is proved to have stated that which he knew to be false no one need enquire further. Everybody assumes thenceforth that he was malicious, that he did a wrong thing from some wrong motive.

28. In the case of Ishri v. Mohammad Hadi [1902] 24 All. 368(371), Banerji and Aikman, JJ., observed as follows:

The laying of an information before the police cannot, therefore, be held to be the commencement of a criminal prosecution; consequently a suit for malicious prosecution does not lie unless cognizance of the offence imputed has been taken by a Magistrate…. The report to the police, of which the plaintiff complains, contains an imputation of the offence of dacoity, and is thus defamatory of the plaintiff’s character. It was, therefore a libel or a slander, and it was not the less so because the words constituting the libel or slander were written or spoken to a police officer.

29. The above is an authoritative pronouncement by two eminent Judges of this Court and the value of the same has in no way been affected by the decision of Chunni Lal v. Narsingh Das [1918] 40 All. 341. This very matter came up before a Full Bench of this Court consisting of Walsh, Ag. C.J., Ryves and Dalal, JJ., in the Letters Patent appeal from a judgment of Walsh, J., whose judgment was affirmed. It affirmed by implication the pronouncement of Walsh, J., that a report made at a police-station, though not within the rule of absolute privilege which covers judicial proceedings, is prima facie privileged, that is to say, the person making it has a right to make it if he honestly believes it, and the person receiving it has a duty to receive it; but qualified privilege, as the term indicates, provides only a qualified protection, and the person charged with the defamation must prove that he used the privilege honestly, honestly believing the truth of what he said, or, in other words having reasonable grounds for making the statement, and the onus of establishing that lies upon him. The learned Counsel for the respondent has referred me to day to a case reported in Sanjivi Reddi v. Koneri Reddi A.I.R. 1926 Mad. 521. This case is not in accord with the decision of this Court just referred to. It may be held as settled law (1) that the report made to a police officer is not a judicial proceeding; (2) that imputations contained in the said report may be privileged if there was an occasion of privilege, but they are not absolutely privileged; (3) that if the defendant pleads privilege the onus lies upon him to prove the affirmative; (4) that if he succeeds in proving privilege the onus of proving actual malice is then cast upon the plaintiff, for malice destroys privilege. But if the defendant has failed to prove that he made the statement on a privileged occasion honestly the plaintiff is not called upon to prove actual malice; and (5) that privilege, which affords a ground of defence can only arise either from the nature of the publication or from the relation between the parties.

30. The defendant’s plea of justification entirely failed, and the finding of the Court below is that the imputations made by the defendant were false and malicious. No qualified privilege was pleaded before the Munsif, before the lower appellate Court nor before this Court. The subordinate Judge treated the statements contained in Exs. 2 and 14 on the same basis as the complaint made to the Magistrate. Here the learned Judge was manifestly incorrect, The police officer was not a judicial officer and his duties were ministerial and not judicial. No duty was cast upon the defendant to make those imputations to the police officer and the relation of the defendant was not that of a subordinate approaching his superior officer with a statement which he was honestly bound to communicate. The defendant, therefore, was not entitled to absolute exoneration, but could only plead a qualified privilege. Here too his defence failed. The findings of the Court below are clear and specific that the imputations were false and malicious. Under these circumstances the plaintiff’s claim was well founded.

31. The learned Additional Subordinate Judge was not justified in dismissing the plaintiff’s suit on the ground that the plaintiff having failed to prove actual damage the Court was not bound to decree the plaintiff’s suit in view of the fact that the defendant had paid for his criminal folly by the sentence passed upon him under Section 182, I.P.C. It is true that the plaintiff did not adduce any evidence as to the actual damage sustained by him or of its amount. Ordinarily damage in such cases does not admit of exact appraisement. But in view of the monstrous charges made by the defendant with cold and calculated deliberation it may well be presumed that the plaintiff did not escape completely unscathed. Considering the infirmity of humans nature and strained relations of the parties damage in some form or shape was inevitable as the natural and proximate consequence of the wrongful act complained of. It was not necessary for the plaintiff to allege that he had suffered special damage and it was not necessary for him to prove special damage. He still had the right to resort to and recover general damages, for the law presumes that the publication of a libel or slander which is actionable per se has of itself a natural and necessary tendency to injure the plaintiff. Special damage is not the gist of those actions, but a consequence only of the right of action; and thought the plaintiff offers no evidence of actual damage, the jury are not obliged to award nominal damages only. This is not the formulation of a new rule of law and was laid down so far back as 1824 In re Tripp v. Thomas [1824] 3 B. & C. 427. In this case the plaintiff’s counsel had produced no evidence whatsoever as to the amount of damages and yet a sheriff’s jury returned a verdict for £ 40, and the same verdict was upheld.

32. In the present case, where the defendant, maliciously with a view to put his adversary into trouble charged him with the commission of serious crimes such as dacoity, extortion, arson, etc., a Court, would find itself justified in granting a decree for Rs. 400 even in the absence of evidence of actual damage. The sum so decreed is neither improper nor extravagant. I, therefore, allow this appeal, set aside the decree of the lower appellate Court and restore the decree of the Court of first instance with costs in all Courts.

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