Excerpt: though the statement made under Sec.161 CrPC is a “privileged statement”, the “privilege” is not absolute. but only “qualified privilege”. The contrary view that it is “absolutely privileged” taken by this Court in earlier cases has been impliedly over ruled by the Supreme Court in the cases referred above. Therefore the argument of the learned counsel for the petitioner that the statement on which the complaint has been filed is “absolutely privileged statement”, is not acceptable.
P.Zainulabideen vs Kmh Sahul Hameed @ Abu Abdulah on 25 February, 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25/02/2003
CORAM THE HONOURABLE MR. JUSTICE A.K. RAJAN
Crl.O.P.No.8636 of 2003
P.Zainulabideen .. Petitioner
-Vs-
KMH Sahul Hameed @ Abu Abdulah .. Respondent !
For Petitioner .. Mr. A.Sirajudeen for M/s. Siraj & Siraj
^For Respondents .. Mr. Thiagarajan for Ms. Revathi :
O R D E R
This is a petition filed under 482 Cr.P.C. to call for the records relating to the proceedings in C.C No.138 of 2003 on the file of the Judicial Magistrate-I, Trichy, and to quash the same.
2. It is stated in the petition that the petitioner was an Organiser of Tamizhaga Muslim Munnetra Kazhagam (TMMK), a political party in Tamil Nadu. The petitioner is the author of many religious books on Islam, and he is delivering religious discourses on Islam and he is also writing in magazines. On 14.2.1998, a serial bomb blast took place in Coimbatore. The petitioner was enquired during investigation, and he made a statement to the Investigating Officer. Thereafter, the statement was furnished to him. In fact, he did not make such statement to the police. When the petitioner came to know of this, he and other Office Bearers appointed a Committee to enquire and to submit a report. The Committee also submitted a report in which it was stated that such a statement was not given by the petitioner; and that was also published in one of the magazines “Unarvu”. But, thereafter the respondent issued a notice, dt.20.7.2002, in which he has stated that the statement given by the petitioner was defamatory. The petitioner sent a reply, dt.26.8.2002, to the said notice. A private complaint was filed by the respondent before the Judicial Magistrte-I, Trichirappalli for an offence punishable under Section 500 IPC, which was taken on file as C.C. No.138 of 2002. As per the complaint, the petitioner made a statement to the police that the property of Al Nazad was registered in the name of the Treasurer and unable to bear with that treachery, the petitioner quit the organisation. Therefore, the present petition has been filed for quashing the criminal proceedings on the grounds that the complaint is barred by limitation prescribed under section 468 Cr.P.C; and that the statement made by the petitioner to the police was not defamatory; and that the alleged statement comes under exception 9 of Sec.499 IPC, and therefore no prosecution can be lodged against the petitioner for such statement.
3. Notice was served on the respondent, and he entered appearance through Counsel.
4. The learned counsel for the petitioner submitted that the statement made to a Police Officer during investigation is an “absolutely privileged statement” and no action including an action for damages lies. Therefore, the complaint, which is now pending, shall be quashed. In support of his contention, the learned counsel relied upon the judgment of this Court in RAMASWAMI MUDALIAR, In re [47 LW 136], where this Court has held that – “….the statements having been made on a privileged occasion under S.161 of crpc , they would certainly come within the exception 9 of S.499
The learned counsel for the petitioner also referred to a Division Bench judgment of this Court in PEDDA SANJIVI REDDY v.. KONDAGARI KONERI REDDI [(5) MLJ REPORTS 460], where the Division Bench of this Court has held that –
“that the claim for defamation was also unsustainable, because the plea of absolute privilege prevailed both with respect to the statements made to the Sub-Inspector of Police and with respect to those contained in the petition to the Magistrate.
All statements made by a potential witness as a preliminary to going into the witness-box are equally privileged with the statements made when actually in the box in Court. The statements made to the police-officer which could only be made with a view to their being repeated on oath before the Magistrate were therefore absolutely privileged.
By the common law of England absolute privilege attaches not merely to the actual proceedings of any tribunal exercising judicial function, but to all preliminary steps which are in accordance with the cognised and reasonable procedure of such a tribunal. That principle must be held to obtain in India also.”
The learned counsel for the respondent submitted that the present action has been taken only on the statement given to the police, when he was examined under section 161 CrPC, it is an absolutely ” privileged statement” and therefore no action can lie. The learned counsel also submitted that the statement given under Sec.161 CrPC is not admissible in evidence before the Court in any other proceedings and therefore the complaint is liable to be quashed.
5. The learned counsel for the respondent submitted that the statement given to the Police Officer, though a “privileged statement”, it is not “absolutely privileged”; but, only “qualified privilege” is available to such statement. In support of his argument, the learned counsel for the respondent relied on the judgment of the Supreme Court in KHATRI v.. STATE OF BIHAR [(1981) 2 SCC 493]. In this case, the Supreme Court has held that a statement given under Sec.161 Cr.P.C is not admissible in evidence only in that particular case. But, that statement is inadmissible in any other proceedings other than inquiry or trial of that offence.
The learned counsel for the respondent also relied upon another judgment of the Supreme Court in M.N. DAMANI v.. S.K. SINHA [AIR 2001 SC 2037] where the Supreme Court has held that –
“the respondents had made imputations intending to harm or knowing or having reasons to believe that such imputation will harm reputation of the complainant”.
The learned counsel submitted that there is a prima facie case against the petitioner and therefore the Court cannot quash the proceedings. Therefore, the present petition is liable to be dismissed.
6. It is true that this Court in the two decisions, referred to by the learned counsel for the petitioner, has held that a statement made in a complaint to the Magistrate or to a Police Officer, during inquiry of a case is “privileged”, and it would fall within exception 9 of Sec.499 IPC. But the later Supreme Court decisions are contrary to that. Though the Supreme Court does not refer to these two judgments, yet these two judgments are no longer good law, in view of the later judgments of the Supreme Court contrary to the propositions laid down in those two cases by this Court.
7. The Supreme Court in the Khatri’s case, after extracting the provisions of Section 162(1) and 162(2), observed as follows: “It bars the use of any statement made before a police officer in the course of an investigation under Chapter XII, whether recorded in a police diary or otherwise, but, by the express terms of the section, this bar is applicable only where such statement is sought to be used ‘at any inquiry or trial in respect of any offence under investigation at the time when statement was made, the bar of Section 162 would not be attracted. This section has been enacted for the benefit of the accused, as pointed out by this Court in Tahsildar Singh v. State of U.P [AIR 1959 Supreme Court 1012], it is intended “to protect the accused against the user of statements of witnesses made before the police during investigation, at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence”. This Court, in Tahsildar Singh case approved the following observations of Braund, J. in Emperor v.. Aftab Mohd. Khan [AIR 1940 All 291:
” As it seems to us it is to protect accused persons from being prejudiced by statements made to police officers who by reason of the fact that an investigation is known to be on foot at the time the statement is made, may be in a position to influence the maker of it, and, on the other hand, to protect accused persons from the prejudice at the hands of persons who in the knowledge that an investigation has already started, are prepared to tell untruths.”
and expressed its agreement with the view taken by the Division Bench of the Nagpur High Court in Baliram Tikaram Marathe v.. Emperor [AIR 1945 Nag 1] that “the object of the section is to protect the accused both against overzealous police officers and untruthful witnesses”. Protection against the use of statement made before the police during investigation is, therefore, granted to the accused by providing that such statement shall not be allowed to be used except for the limited purpose set out in the proviso to the section, at any inquiry or trial in respect of the offence which was under investigation at the time when such statement was made. But, this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar.”
It further observed that such statements cannot be shut out from being produced, “provided they are otherwise relevant under some provisions of the Indian Evidence Act
8. In Damani’s case, the Supreme Court, after referring to some of its earlier judgements, has held that –
“Assuming that the imputations made could be covered by exception 9 section 499 of IPC several questions still remain to be examined – whether such imputations were made in good faith, in what circumstances, with what intention, etc. All these can be examined on the basis of evidence in the trial.”
Further –
“… it is for the respondent to plead that he was protected under Ninth Exception to Section 499 of the Penal Code. The burden, such as it is, to prove that his case would come within that exception is on him. The ingredients of the Ninth Exception are that (1) the imputation must be made in good faith, and (2) the imputation must be for the protection of the interests of the person making it or of any other person or for the public good.” Further it has held that
“….. it is the settled legal position that a Court has to read the complaint as a whole and find out whether allegations disclosed constitute an offence under Section 499.
9. From the above decisions of the Supreme Court, it is seen that though the statement made under Sec.161 CrPC is a “privileged statement”, the “privilege” is not absolute. but only “qualified privilege”. The contrary view that it is “absolutely privileged” taken by this Court in earlier cases has been impliedly over ruled by the Supreme Court in the cases referred above. Therefore the argument of the learned counsel for the petitioner that the statement on which the complaint has been filed is “absolutely privileged statement”, is not acceptable. Therefore, the criminal case pending against the petitioner cannot be quashed.
10. In the result, the petition is dismissed. Consequently, CMP No.3000/03 is also dismissed.
Index: Yes Internet: Yes pb
Defamation 