The Judgment of the Court was as follows:

Blagden, J.:— This is a suit for defamation and is before me on a point of law arising on the pleadings.

2. The Plaintiff alleges that on or about the 18th July, 1940, the Defendant wrote and published to the Commissioner of Police, Calcutta, a letter of and concerning the Plaintiff. I will say the least about its terms, that I must, because its publication in extenso at the moment would be unfair to both the parties. The Defendant alleges that it is true, but has as yet had no opportunity to prove it, while the Plaintiff has had no opportunity to answer the charges it contains. Suffice it to say that it contains passages (set out in paragraph 2 of the plaint) which are capable of at least three highly defamatory meanings; indeed it is not disputed that they are in fact defamatory and refer to the Plaintiff. By the matters asserted in his letter the Defendant complains that he personally is aggrieved. His grievances, if genuine, are such that the addressee of the letter would be, or might reasonably be thought to be, by virtue of his office, a fit and proper person to remedy them. Moreover, if the Defendant honestly thought that his charges or any of them were true it was his moral, if not legal, duty to inform some proper public authority, such as the Commissioner of Police, about them.

3. It is not, consequently, disputed that the occasion of publishing this letter was privileged. The Defendant has pleaded publication without malice on a privileged occasion, but he takes the point (which I have to decide) that his denial of malice was not strictly necessary, the privilege in question being, as a matter of law, absolute, that is to say, that no matter how improper the motive of the publication, it is still not actionable.

4. The question whether he is right is extremely interesting and has been very ably argued on both sides.

5. It is agreed that I am not fettered by the provisions of the Indian Penal Code as to the criminal offence of defamation and have to decide the point under the “justice equity and good conscience” clause of Letters Patent. That means that English law is applicable save and in so far as it is not incompatible with the conditions of life (includng the Code of Criminal Procedure) in this country, though I respectfully agree with the Madras High Court in Balammal v. Palandi Naidu(1) that where there are two possible opinions as to what English law is, an Indian High Court can choose that opinion which appears to it the more reasonable.

6. English history is largely that of a struggle, both in domestic and foreign affairs, against any form of despotism. English common law is a reflection of English history, and most citizens of the country take it for granted that every man in a civilized country is equal before the law.

7. Actually the idea is almost peculiar, in origin, to Great Britain, where it has been established by bloodless battles in the Courts. It survives to-day principally in that country and in those countries to which it has been exported and which are still free from enemy domination.

8. One consequence of this fundamental principle of the common law is that it has been most reluctant to make the words or actions of any man wholly immune from question in Courts of law. It has readily admitted that there are numerous occasions when a man can and should, for proper reasons, speak what he believes to be the truth even though it may be damaging to the reputation of another. He (for example) who discharges his butler for theft and thereafter tells an enquirer as to his character that he is an admirable servant is guilty of a heinous moral offence not only against the enquirer but also (which is worse) against the whole class of honest butlers. If he replies at all—which he is not bound to do—it is his clear duty, (and the law recognizes and respects that duty) to say in plain language what he believes to be the truth, namely “I dismissed him because he was a thief.” But if the employer says this not because he really believes that the butler stole but because he dislikes the butler he is doing a cruel wrong to the butler, for which he can, and should, be made to atone in heavy damages, irrespective of the parties' positions in society. Consequently English law while not ungenerous to qualified privilege has been reluctant to extend the categories of occasions absolutely privileged. Wherever it has done so it has, I believe, been actuated always and exclusively by consideration for the public interest.

9. The instances of absolute privilege relevant to this case arise out of legal proceedings, civil or criminal, actual or contemplated.

10. It is necessary to consider in some detail—how far absolute privilege in this connection has been extended.

11. Even before the end of the 17th century (when the judicature was, in theory at all events, freed from any possibility of pressure by the Executive) the common law recognised that a Judge as such could speak as he liked without any fear or favour whatsoever. One reason for this is clearly stated as early as 1674 by North, C.J, in Barmardiston v. Soame(2) as follows:

“They who are interested to judge, ought to be free from vexation, that they may determine without fear; the law requires courage in a Judge and therefore provides security for the support of that courage”.

12. This passage was cited with approval in More v. Weaver(3), by Scrutton, L.J, who himself, through a long career on the Bench, was plain-spoken to, and sometimes beyond, the limits of good manners, utterly fearless, and conspicuously impartial between the Government and the governed. These qualities earned him the hatred of Bureaucrats, but the memory of this great Judge will long be revered by many who practised before him and could be sure of a fair hearing for their clients, however poor or disreputable, so long as they themselves talked sense boldly and distinctly.

13. It is important to observe that even a Judge is not (in Scrutton, L.J's words) “privileged to be malicious or careless” but, as was said by Channel, J., in Bottomley v. Brougham(4) “is privileged from enquiry as to whether he is malicious or not.” Nor is even that privilege the privilege of the individual holder of the office or even that of the high office he holds. If a man says “I should like to be a Judge because then I could say exactly what I like about every body” he is demonstrating his own unfitness for that office. We are but bare trustees of our privilege which is, really, the privilege of the public to have their disputes decided by persons who shall be free from favour and from fear.

14. It is, theoretically, unfortunate that no one can prevent an abuse of this privilege by Judges, but in a Court of law someone must be supreme if business is to proceed, and that some one must be the Judge. In this, democracy forbids but necessity compels.

15. How early the extension of the same absolute privilege to Counsel engaged in a case was recognised I do not know, but the reasons for it are equally obvious, and it is long settled law that it does extend to them. Equally, it must extend to a litigant in person who is acting as his own Counsel, since fairness demands that the amateur and professional Advocates should at least bat on the same wicket. Here, again, the privilege is that of the public. A man has no right to say just what he likes about some one else because he is a party to a law suit or a member of the Bar, but the public have a right, if involved in litigation, to say, personally or by Counsel, exactly what they wish to say to the Judge who has to decide their dispute. It is for him to prevent or check any abuse of their privilege by them or by their Advocates. The privilege is applicable, equally clearly, to pleadings, affidavits and other similar documents used or intended to be used in the course of judicial proceedings.

16. I do not know that the absolute or any privilege extends to officers of a Court subordinate and assistant to the Judge, when not acting judicially. If, for example, the officer whose duty it is to call on cases should, when the case next to be called on was Brown v. Jones, cry out “Burglar Brown against Honest Jones,” I doubt if he would have any defence to an action of slander by Brown except proof that the word “Burglar” was a truthful description of the Plaintiff, and he certainly could, and I hope would, be summarily dealt with by the Court for contempt. It certainly was, however, long ago and clearly extended (in England) to the utterances of witnesses and jurors in the course of judicial proceedings. No doubt the like privilege extends to assessors.

17. Apart from interruptions of and interpolations on judicial proceedings (such as the Usher's charge in Gilbert and Sullivan's “Trial by Jury,” which was a clear contempt and a quite unprivileged slander) the foregoing cover the case of every person who in the course of proceedings in Court is entitled to make a statement and makes one.

18. If the foregoing people were not absolutely protected, most ordinary suits would no sooner be decided than they would each beget a number of others, since the losing party would promptly sue the Judge, the successful Counsel, and the witnesses whom the latter called. The Courts would be snowed under with work and justice thereby delayed, impeded, and finally frustrated.

19. Only, apparently, in the last 40 years has the question arisen whether there are any more instances of absolute privilege of this class, mainly through the ingenuity of a Scotch lady and or her advisers. It would be useless and hazardous for a litigant to call a witness if he had no idea at all what the latter would say even in chief, consequently it is an almost invariable practice for both parties to a suit involving questions of fact to obtain proofs, if they can, from those whose evidence will, they think, assist their case. Jessie Prentice Mc Ewan hit on the happy idea of suing a witness (whose evidence imputed to her an addiction to drugs and a criminal intention) not for what he said in the box but for what he said to the solicitor for the party who called him, and to that party himself, when he was asked what he was prepared to say in the box. The result was Watson v. Mc Ewan(6). It is the most important British authority which affects the present ease. The House of Lords there clearly recognised as settled law the absolute privilege of a witness in respect of what he says in giving evidence; that to uphold the contention of Jessie Prentice Mc Ewan would virtually destroy that privilege; and that, therefore, the reasons on which that undoubted privilege was founded were fatal to the ingenious device of the Plaintiff Respondent for getting round the privilege (see per Lord Halsbury, L.C, at p. 487). It is not now disputed that a witness who gives evidence is as fully protected as regards his proof as he is as regards his actual testimony, whether he volunteers his statement or whether it is made in response to a request, and whether he makes it to a litigant or to his agent.

20. But the Lord Chancellor carefully left open the question of the donor of a proof who is not in fact called. He admitted (p. 487) that this case might be one of hardship to a person defamed and at p. 489 clearly points out that his opinion (with which the other noble and learned Lords agreed) is confined to the case of a witness—that is, a person who actually gives evidence. To the question of the statement of a person who does not do so Lord Halsbury, at p. 488 gives only what he thinks “practically, would be the answer,” namely that “nobody knows anything about it. It slumbers, I suppose, in the office of the solicitor and nobody hears or cares anything about it.” Doubtless in the overwhelming majority of cases that is what would happen. But that means, not that the person defamed has not been injured, but only that he does not know of his injury. Actually the solicitor, and probably his managing and articled clerks, have seen what was said: At any rate, if litigation ensues, so have his typists who tapped out the briefs to Counsel, and who love to use their tongues in a good gossip. So have learned Counsel, senior or junior, and so have their “devils” and the latter's pupils. So, finally, has the taxing master. In all, even if the maker of the statement is not called, thirty people may easily have seen the statement or a copy of it: some of them will doubtless be female, and others married. It is therefore quite impossible, whatever their obligations to secrecy, if any, to say how far the statement may not spread and that its nature might not come to the knowledge of the person defamed. It would be an odd case if it did, but it is odd cases which provide interesting and instructive legal problems.

21. To deny a cause of action to the person defamed in such a case, when he has had no opportunity to test by cross-examination, still less to disprove, that which is imputed to him, or to prosecute his defamer for perjury, would, as Lord Halsbury indicates, be to create a hardship. But to allow him one might easily create a very paradoxical and puzzling situation, best illustrated by a hypothetical case. Mr. and Mrs. A attempt to cross a street; Mr. A. escapes uninjured, but Mrs. A is knocked down and injured by a motor car driven by X, who drives on. Obeying the impulses of his head rather than his heart, Mr. A at once notes the number of the car and begins to collect statements from the on-lookers of whom one (M) says that he saw the whole incident and that the driver was obviously drunk—thereby imputing to X the serious crime of being drunk in charge of a motor car. At the very next moment X either has or has not a good cause of action against M. Mrs. A later commences a suit for damages against X. But meanwhile some one has told X what M said about him, and X has commenced a suit for slander against M, which comes on for hearing before suit A v. X. In the suit X v. M the Defendant does not allege that what he said was true, but pleads only privilege. It is found in that suit that in fact he spoke maliciously. If his privilege be not absolute unless he becomes a witness, what conceivable right has M to have the suit against him stayed pending that of A v. X in order to see whether he will be called in that suit? I know of none. Suppose M. fails to get a stay and suffers judgment, what is the effect on that judgment if as a result of what happens at the trial of A v. X it transpires that M's privilege was really absolute? An action for tort may abate as a result of something that happens after it is commenced, e.g, at common law, the death of the Defendant: but I know of no precedent for holding that if judgment in such a suit has actually been pronounced it can be, in effect, satisfied merely by something that happens in another suit between different parties. To such most perplexing problems the decision in Watson v. Mc Ewan affords no answer. If and in so far as a Bench of this Court in Ghosh v. Ghosh(7) assumed that it decided anything about intended litigation I can only say that it seems to me their Lordships were under a misapprehension as to what the House of Lords really decided, for it appears at pp. 481-2 of the report that the statement there complained of was made long after litigation was commenced.

22. I do think that the English Court of Appeal carried the matter a long stage further in Beresford v. White(8) which seems to show that the answer to the problem of Mr. and Mrs. A.M and X is that M's statement is in any event absolutely privileged. The Plaintiffs in that case had for over eight years been intermittently putting forward a claim to an Irish peerage but had never actually commenced proceedings. Learning that the Defendant was likely to have some knowledge of the matters in question, his solicitor sought and obtained an interview with her. Her statement to him, imputing to his client bastardy and imposture, was held by the Court of Appeal to have been made on an absolutely privileged occasion, though in fact she never gave evidence. Buckley, L.J, who delivered the only reported judgment, thought it necessary to point out that the Defendant's statements were relevant to the matter on which she was being interviewed.

23. Whether the absolute privilege which thus attaches to a statement to an actual or potential litigant or to his agent with the idea that the person making it may give evidence extends to a statement made by such a litigant in preparation for his law suit (for example, instructions to his solicitor), or to statements by a solicitor to his own client, is very doubtful.

24. In Browne v. Dunn(9), Lord Herschell, at p. 72, was of opinion that communications passing between a solicitor and a potential client leading up to and relevant to a retainer which the solicitor reasonably contemplates are made on a privileged occasion. Lord Bowen (at p. 80) had no doubt about it at all, and thought, though he left the point open, that the privilege was absolute as regards communications by the solicitor to the client germane to the matter on which he was consulted. Where, however, a third party consulted the Defendant (a solicitor) and made to him statements defamatory of the Plaintiff with a view to obtaining his (the Defendant's) advice thereon and the Defendant faithfully but quite unnecessarily, recorded those statements in his bill of costs, Darling, J., held that the privilege attaching to the occasion of publishing the latter document was only qualified privilege [Morgan v. Wallis(10)]. The converse case, that of a defamatory communication by a client to a solicitor asking for his advice, arose in More v. Weaver and both Swift, J., and the Court of Appeal (Scrutton, Lawrence and Greer, L.J.J) were unanimously of opinion that such an occasion was absolutely privileged as regards statements relevant to the matter on which advice was desired. Scrutton, L.J, points out that Fraser, J. (a great authority on this branch of the law) had, in his book, expressed the opinion that Darling J.'s decision was erroneous. More v. Weaver, however, is itself a doubtful authority since Minter v. Priest(11). There the House of Lords make it clear that the privilege of the occasion when a solicitor is consulted protects only statements relevant to the matter about which the consultation takes place, and does not protect a statement made by the solicitor for a purpose other than that of advising his client. Each of their Lordships felt some doubt whether More v. Weaver was rightly decided and expressly left that question open.

25. What the test of “relevancy” is for the purpose of a claim to absolute privilege was considered by Scrutton, L.J, in More v. Weaver. The question, he thought, is one of fact for the jury. This seems to indicate that what is meant is not that the statement should, as a matter of law, be material for the purpose of obtaining or giving advice (for of that only a lawyer could judge) but that it should be one which the maker of the statement genuinely (or, perhaps, reasonably) thinks material for that purpose. His Lordship gives an excellent instance of a statement which might on the face of it be irrelevant and which a jury would probably so find, viz.:— that of a building owner who, when consulting his solicitor about a dispute with his builder, adds to his instructions the statement that Jones has run away with another man's wife. I will venture to give a case nearer the border line: an intending purchaser of immovable property obtains an abstract of title which he sends to his solicitor with a covering letter asking his opinion as to the soundness of the title. He adds the observation that the vendor is a bigamist. His object may be merely to brighten the solicitor's grey life with a bit of interesting gossip; or it may be that he genuinely believes that the felonious character of the vendor may affect his capacity to own or give a good title to property, for which belief there would have been considerable reason 72 years ago. Which it is is a question of fact.

26. From the foregoing and earlier authorities it seems to me that by the law of England the occasion of making each of the following statements is absolutely privileged:—

1. Any statement by a Judge as such.

2. Any statement made by a subordinate officer of a Court when acting either judicially or on duty … by a subordinate officer of a Court in the course of his duty in judicial proceeding—but not otherwise.

3. Any statement by an advocate as such “advocate” (including counsel, a solicitor or Official Receiver where he has a right of audience in judicial proceedings, and a litigant in person).

4. Any statement in a pleading, affidavit, notice, summons, report, bill of indictment, information, or other similar document used or prepared with a view to use in litigation actual or contemplated.

5. Any statement by a juror or asseessor as such.

6. Any statement toy a witness as such.

7. Any statement as to the subject-matter of litigation, actual or potential, by a person not a party thereto to a party or his adviser made at the request of, or with a view to assisting, that party.

8. Any statement, supposed—or, perhaps, reasonably supposed—to be material for the purpose, made by a person seeking legal advice or assistance to a legal practitioner, or by such practitioner to such person in the course and or for the purpose of advising him.

27. In the above statement I use the word “Judge” in the widest sense, subject only to a minor qualification affecting in England the Judges of sub-ordinate Courts with limited jurisdiction; and I include in the term “litigation” criminal as well as civil proceedings and in the term “party” the actual prosecutor or complainant in criminal proceedings.

28. On the authorities as they stand I do not think there are any more categories of the absolute privilege which attaches to judicial proceedings. In particular, 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.

29. A would-be institutor of criminal proceedings in England could till the recent abolition of grand juries take any one of at least three courses. If his charge was one of an indictable offence he could prefer a voluntary bill of indictment to the grand jury at the Assizes or Quarter Sessions for his county, or borough (he must now prefer it to the presiding Judge or recorder); or, whatever the offence charged, he could lay information before a Magistrate: or he could complain to the police. Against proceedings for defamation either of the first two courses afforded him complete and absolute protection, but he was exposed to the risk of an action for malicious prosecution if the prosecution failed. The third course freed him of that risk, unless indeed he made the police his agents by saying, in effect, “I wish you to prosecute whatever you think about it” instead of “I wish you to look into the matter and prosecute if you think fit.” It was therefore not unreasonable that, if he took the third course, he should be open to a suit for defamation. In any case, if he acted honestly he had nothing to fear beyond the annoyance of a law suit which he could successfully defend. But since the law from the earliest times permitted suits for malicious prosecution it has clearly never been its policy to stifle enquiry into the motives of prosecutors as such, still less those of would-be prosecutors.

30. Before considering, whether on authority or on principle the law of India is different, I must point out that it is certainly not the policy of the law, in this country either, to prevent a judicial enquiry into the motive of person who says something to a policeman defamatory of somebody else. Here, also, there is an action for malicious prosecution, and even if in fact there is no prosecution, it is by sec. 182, I.P.C, a criminal offence “to give to any police officer any information known to be believed to be false intending to cause such police officer to use his lawful power to the injustice or annoyance of” anyone.

31. If the complainant is worth powder and shot and the person complained against so elects, I know of no principle on which he should be restricted to the meagre remedy offered him by the criminal law, even if no prosecution takes place. Learned Counsel for the Defendant has most persuasively suggested that if a false and defamatory statement can innocuously “slumber in a solicitor's office” it can do so even better in a thana, but I cannot see any reason to suppose that its rest, in either dormitory, will necessarily be harmless. True, fewer women are likely to see it in the police station than in the solicitor's office; but even male police officers, both in England and in the East, not infrequently fail to appreciate the nice distinction between proved crimes and alleged crimes—at least, that has been my own experience,— and their lawful powers of annoyance are greater than those of solicitors.

32. Learned Counsel also points out that the communication now in question was to no ordinary policeman but to the Commissioner of Police, Calcutta, who by sec. 7 of the Calcutta Police Act, 1866, is to be appointed a Justice of the Peace. But it is not proved or admitted before me that the present holder of the office has any higher magisterial powers than those inherent in a Justice of the Peace which are defined by secs. 22 and 36 of, and Schedule III to, the Criminal Procedure Code. I may, I think, assume that the Commissioner has been duly appointed a Justice of the Peace, but cannot assume that his powers have been increased. It is true that some of the powers of even a Justice of the Peace are judicial powers and might possibly, on some of the facts alleged in the Defendant's letter, be exercised judicially by the Commissioner of Police as a Justice of the Peace. But the power to entertain complaints is not one of his powers as such [Logan v. Romer, (12)] and sec. 7 of the Calcutta Police Act expressly, and understandably, forbids his exercising the generality of those powers “except so far as may be necessary for the preservation of the peace, the prevention of crimes, and the detection apprehension and detention of offenders in order to their being brought before a Magistrate of Police” (now “Presidency Magistrate”). Nothing in the letter suggests that these ends, and especially the preservation of the peace, could be achieved only by the Commissioner's assuming to exercise judicial powers. In fact it leaves it to his discretion what steps he should take if he decides to act on it, though it contains several alternative suggestions. In substance, it invites the Commissioner of Police to take action as such, that is as an administrative and executive officer, and some of the powers whose exercise is expressly suggested are purely administrative. Even the Commissioner's powers under sec. 78A are inquisitorial rather judicial. Their exercise leads him not to make a decision affecting the rights of others but gives him information to assist him in deciding whether he will or will not take other steps to obtain such a decision. To my mind, it imports into the case a complete air of unreality to suggest that the letter on the face of it is written to a judicial officer. That is why I have alluded to its distinguished recipient as “a policeman”; for such he is, although a very senior and responsible policeman. In so doing I have not intended to cause the gentleman who now occupies the office any offence, though I recognize that, to-day, the use of accurate language often does do so.

33. Indian authority on the matter now in dispute speaks with a divided voice. As regards this Court, my attention has been drawn to two Bench decisions, one containing dicta, directly one way and the other (more satisfactorily reported) directly the other way.

34. In Roy v. Roy(13) the Plaintiff had assaulted the Defendant, who thereupon denounced him to the police as a dacoit but later withdrew the charge of dacoity; the Plaintiff sued for defamation. The Court (Norman and Campbell, JJ.) said that every man who considered that a criminal offence had been committed had a right to make a complaint before the police or before a Magistrate “and,” they said, “he does no wrong and is not liable to suits except for making such a charge falsely and maliciously.” If the Judges intended to decide that a prosecutor may be liable for defamation, as distinct from malicious prosecution, for a statement to a Magistrate in his judicial capacity, they were wrong, but I do not think they did so. It was not strictly necessary for them to hold that a statement to the police by a would-be prosecutor is the subject of only qualified privilege, for there was no finding and no evidence of malice, but they certainly did so hold. On the other hand in Ghosh v. Ghosh, Ghose and Mukherjea, JJ., were of opinion that a complaint made to a police officer by an intending prosecutor who subsequently gave evidence for the prosecution was absolutely privileged. They held, (and here I respectfully agree) that the law of England is applicable, but reached a conclusion which, I humbly conceive, is not warranted in English law. There is a possible distinction between this case and the present in that there the maker of the earlier offending statement did in fact substantiate it in the witness box. That being so I do not think that Ghosh v. Ghosh (7) is binding on me, especially having regard to Roy v. Roy (13).

35. I think, with great respect, that their Lordships understood Watson v. Mc 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.

36. One difference between English and Indian law there certainly is, and it arises out of a difference in criminal procedure. Where a Magistrte under sec. 202, Cr. P.C, directs the police to enquire into and report on a complaint he is exercising a power which does not exist in England, and a statement to the police when they are acting in pursuance of his orders is absolutely privileged. They are, for the time being, the delegates of a judicial authority and their investigation is to be considered as part of a judicial proceeding.

37. Sanjivi Reddy v. Koneri Reddy(14).

38. Ghosh v. Ghosh was followed and extended by King, J., in Bapalal v. Krishnaswami Iyer(15), where he held that a complaint to a policeman alleging theft by the Plaintiff was absolutely privileged in a suit for defamation. The final ground given by the learned Judge, as reported, is very curious. He reached the conclusion

“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 complainant is prepared later, if sailed upon to do so, to substantiate on oath, is absolutely privileged”.

39. If this reasoning is correct, the gates are thrown open to the editor of every newspaper to libel anybody to any extent he pleases with impunity. He has only to say—

“A.B is “a murderer: “I” am (or rather “we are”) prepared later, if called upon to do so, to substantiate this upon oath. We challenge A.B to take proceedings, in which we will prove that he is a murderer”.

40. Should A.B take the proceedings invited, the editor need not bother with the hazardous defence of justification, if King, J.'s reasoning is correct; he can plead, and plead only, privilege, and no evidence of malice which A.B may be able to adduce will assist him in the least. This seems to me a completely untenable proposition.

41. The result is paradoxical for another reason. If there appears to the police to be some substance in the complaint and an unsuccessful prosecution ensues, the person charged clearly has open to him a suit for malicious prosecution, to succeed in which he will have to prove (inter alia) malice. But if the charge appears to the police utterly groundless, and no prosecution follows, then, according to King, J., he would have no civil remedy at all. It is true that the injury he has suffered may in the latter case be less than in the former. But it is at least odd if the more reckless the complaint, the safer is the complainant.

42. It seems to me, with respect, that no adequate distinction is made in the judgment between complaints to a Magistrate and complaints to a policeman, or between complaints to a policeman acting under sec. 202, Cr. P. Code and other such complaints. Nor does the learned Judge seem to have observed that Majju v. Lachhmi Prasad(16) is a decision (for what it is worth) diametrically opposite to the conclusion he reached. In fact, so far from the weight of authority being as he states, not one of the authorities to which he refers [except Ghosh v. Ghosh] at all supports his decision. Nor, it seems, was his attention called to Balammal v. Palandi Naidu a decision of a Bench of his own Court (after a very full review of the authorities) flatly inconsistent with his decision. From the latter, therefore, I must most respectfully dissent.

43. In Majju v. Lachman Prasad a Bench of the Allahabad High Court held that the privilege now in question is only qualified privilege. The value of the decision is not great. The presiding Judge on the Bench was Walsh, A.C.J, and it was an appeal from Walsh, J. His two brethren on the Bench agreed with the judgment of the trial Judge in judgments of 17 and 2 words respectively, while the learned Acting Chief Justice, though he referred kindly to the merits of learned Counsel for the Appellants, said nothing whatsoever about the merits of the appeal; described as “indefinite” the very definite and in my opinion, most proper protest made by Counsel against his sitting on appeal from him self; and did not seriously attempt to justify his position. In fact the judgment appealed against contained statements to the effect that on a defence of qualified privilege the onus is on the Defendant to prove absence of malice and that the defence of qualified privilege is “illogical and impossible” where the Defendant also pleads that the words complained of are to his knowledge true. The latter error arises from the former, which itself would be serious if made by a candidate in a Bar examination and is truly astonishing in three High Court Judges. “Ignorantia juris non excusat”— but one ought not to assume, because three Judges display crass ignorance on one point, that they are necessarily wrong in their decision on another.

44. A year earlier the Oudh Judicial Commissioner had held in Kishan Lal v. Moosi Reza(17) that the privilege exists but (by necessary implication) that it would be destroyed by proof by the Plaintiff of malice. It is not a very high authority but the learned Commissioner seems to me to have appreciated correctly the legal principles involved, and he reached what seems to me a correct conclusion.

45. In that state, as far as I know, Indian authority rests. It does not compel me to hold that there is anything in the conditions of life in Calcutta (including the conditions created by the legislature) which prevents the application of English common law.

46. On the contrary it supports me, on the whole, in thinking that English common law is applicable to the present question. By that law the writer of the letter, set cut in paragraph 3 of the plaint, is not in my opinion protected by absolute privilege. I therefore decide that the suit must proceed.

Solicitors: Birendra Nath Bose for the Plaintiff; A.P Roy & Co. for the Defendant.

C.C