Datar, J.:— [His Lordship after stating the facts as above and dealing with points not material to this report, proceeded.] Then Mr. Padhye argues that defendants Nos. 6 and 8 were entitled to a privilege, which according to Mr. Padhye, is an absolute privilege, and says Mr. Padhye, no matter how outrageous the lie which was propagated by these witnesses and no matter how malicious the motive of these persons who made the statements that they made and to which they adhered, they would still be protected and their statements would not be at all actionable. Before I consider this point as to whether defendants Nos. 6 and 8 are entitled to an absolute privilege or to a qualified privilege which is liable to be destroyed by proof of malice, I must set, out as a statement of fact that the statements complained of by the plaintiff were made before the police officers in the course of the investigation stated to have started upon certain applications. It is not quite clear whether the police officers in the course of a regular investigation under the provisions of the Code of Criminal Procedure, having registered an offence, called upon these persons, particularly defendants Nos. 6 and 8, to make the statements. It is true that one of these defendants says that in answer to the police officer's query the statements were made but that cannot clearly show that these statements were made in the course of the investigation of the nature which the police officer has got to start and carry on under the provisions of the Code of Criminal Procedure. But for the sake of Mr. Padhye's argument T may assume that these statements were made in the course of the investigation. Then the question arises: were the statements absolutely privileged or was only a qualified privilege attached to those statements? In support of his contention, reliance is mainly placed upon two decisions; one reported in Madhab Chandra v. Nirod Chandra . [1939] A.I.R Cal. 477. and the other in Sanjivi Beddy v. Koneri Reddi . 1925 I.L.R 49 Mad. 315.. In Sanjivi Beddy v. Koneri Reddi it has been held that the statements made in a complaint to a Magistrate under s. 107, Criminal Procedure Code, praying that security should be taken from a person for keeping the peace and a repetition of the same statements before a police officer to whom the Magistrate referred the complaint for enquiry and report are absolutely privileged and no action for defamation in respect of such statement is maintainable. In the Calcutta case, the learned Judges of the Calcutta High Court held (p. 478):
“No action for libel, or slander lies, whether against Judges, counsel, witnesses or parties, for words written or spoken in the course of any proceeding before any Court recognised by law and this though the words were written or spoken maliciously without any justification or excuse, and from personal ill-will and anger against the person defamed. Further, the statements made with a view to repeating them on oath in a subsequent judicial proceeding are similarly protected. Hence statements made by a party in reports to police and statements made by him in subsequent judicial proceedings as a witness are absolutely privileged even though they are defamatory and false.”
2. These two decisions have, however, not been approved in a decision of our own Court which is reported in Gangappagouda Gadigeppagouda v. Basayya Shiva rudrayya . 1942 45 Bom. L.R 215, S.C [1943] A.I.R Bom. 167., where it was held that a Mahalkari holding a preliminary enquiry in the conduct of a police patil on the directions of the Collector in order to report to the Collector is not acting in a judicial capacity, nor exercising the attributes of a Court and that the evidence given before the Mahalkari in such an enquiry is not absolutely privileged. It is true in this case the statements were made before the Mahalkari and not before a police officer as in the instant case. But the principle underlying the decision was that if a statement is not made before a Court or a tribunal having the attributes of a Court, then it could not be said that the statement was absolutely privileged. This has been made clear by the learned Chief Justice in the course of his judgment when he has stated (p. 218):
“…I am clearly of opinion that it is impossible to hold that the Mahalkari was acting in a judicial capacity, or was exercising the attributes of a Court.”
3. The learned Chief Justice also referred to the well-known case of Watson v. M'Ewan: Watson v. Jones . [1905] A.C 480., and to the Madras and Calcutta cases to which I have already referred. The learned Chief Justice in the final paragraph of his judgment observed that he was disposed to think that the Madras and the Calcutta cases referred to above went too far, and could not be reconciled with the decision of the Privy Council in O'Connor v. Waldron . [1935] A.C 76.. If the test that has been laid down in this case that a statement, if made before an officer who was not acting in a judicial capacity or who was not exercising the attributes of a Court, could not be said to have been absolutely privileged, is correct, then the statements made in this case before the police officers cannot be regarded as absolutely privileged. The police officer can never be stated to have been acting in a judicial capacity or exercising the attributes of a Court when he purported to record the statements in the present case and, therefore, I have no doubt that the statements such as were made before the police officers were not absolutely privileged but that only a qualified privilege attached to them. I am bound by the decision reported in Gangappagouda Gadigeppagouda Patil…(Original Plaintiff), v. Basayya Shivarudrayya Lingad…(Original Defendant), .* in so far as it goes and I must, therefore, hold that these statements were not absolutely privileged. Incidentally I may also refer to a subsequent decision of the Calcutta High Court itself which is reported in Joseph Mayr v. Charles Warwick . 1942 47 C.W.N 627., where the learned Judge, Mr. Justice Blagden, has reviewed all the cases and has held that a written communication to the Commissioner of Police, containing defamatory statements, is not absolutely privileged. The learned Judge has, in the course of his judgment, observed that a statement to an officer of the police with a view to his setting the criminal law in motion is certainly not, as such, privileged absolutely in England. After considering the position of law in England, he has further held that it is certainly not the policy of the law in India either to prevent a judicial enquiry into the motive of a person who says something to a policeman defamatory of somebody else. The learned Judge has considered the case reported in Madhab Chandra v. Nirod Chandra and has observed (p. 616):
“I think, with great respect, that their Lordships understood Watson v. Mac Ewan to decide more than it really did decide. That was not, as is stated at p. 580, a case of a witness claiming protection for a statement which he repeated in a ‘subsequent’ judicial proceeding, for the proceeding was pending at the publication and not merely contemplated; and it was a case of a witness, pure and simple, and not of a party who in fact gave evidence.”
4. The learned Judge has also referred to the case in Sanjivi Beddy v. Koneri Reddi and also to a subsequent case reported in Bapalal v. Krishnaswami Iyer . [1940] M.W.N 1054., but he was not inclined to accept the reasoning in either of these, two cases. But so far as this case is concerned, as I have already stated, the decision in Gangappagouda Gadigeppagouda v. Basayyd Shivarudrayya is clear upon the point and I must, therefore, hold that the statements were not absolutely privileged.
5. Then the question arises whether the plaintiff has been able to prove malice.
6. As I already stated that the evidence on record shows that the statements made by the defendants were made with full knowledge that those statements were untrue. This itself, in my opinion, is a conclusive proof of malice. It was stated before me in the course of arguments submitted by Mr. Padhye that they might have believed that when the whole village was saying that the plaintiff was carrying, the plaintiff was really pregnant. To say the least, this would be a totally unreasonable belief in the rumour or the gossip of the village and I cannot say that there was any justification for the defendants to have such belief. It is rather surprising that defendants having known that these statements were untrue to their knowledge, they were adhered to and were even repeated during the course of the trial. The defendants persisted again in making these statements in the written statement and repeated the other statements which they had admitted that they had made before the police officers. This conduct itself is some indication of the malice which actuated them in making the statements. When no serious attempt was made to prove these reckless statements, I should think that these statements were made by these defendants having been actuated by the malice which is necessary to be proved before the plaintiff can say that the defendants are not entitled to the qualified privilege. If, therefore, the learned trial Judge has held that the statements being defamatory and untrue, malice can be easily inferred, I have no doubt that this is a case where the statements were made by the defendants being actuated by malice.
7. [The rest of the judgment is not material to this report.]