The main legal point established in the judgment is the application of absolute privilege to statements made in a petition to a Magistrate and during police investigation, as well as the authority of the Magistrate to refer matters for police investigation under the Criminal Procedure Code.

Victor Murray Coutts Trotter, J.

1. The Chief Justice: The plaintiffs in this case brought a suit claiming damages for malicious prosecution and for defamation. The defendant presented a petition to the Deputy Magistrate of Adoni praying that the plaintiffs and some others should be bound over under Section 107 of the Criminal Procedure Code. The Magistrate on receipt of the petition sent it to the police for enquiry and report. The police reported, after enquiry and after hearing what the petitioner had to say, that there was no foundation for the allegations in the petition. Thereupon the Magistrate dismissed it and refused to take any action under Section 107, Criminal Procedure Code. This Civil suit is the outcome of those proceedings.

2. No difficulty arises with regard to the claim for malicious prosecution. The short and sufficient answer to such a claim is that the plaintiffs were not in fact prosecuted. But the claim for defamation raises a question of some little importance.

3. A Code like the Criminal Procedure Code which purports to provide for every conceivable situation labours under at least one disadvantage and that is that it is difficult, if not impossible, to argue by analogy and to extend the principle to be found in one class of cases with which it deals to another I make no question but that it is against the general principles of the Code that action should lie for statements made in circumstances such as the present. But unfortunately while the Code contains definite provisions as to certain statements the effect of which is to make them absolutely privileged it can hardly be said to have provided for statements such as those. Indeed contention for the plaintiffs is that the present occasion cannot be brought within the words of the Code at all. The difficulty in the present case is created by the wording of Section 202, Criminal Procedure Code, the S. which authorises a Magistrate to refer a matter for investigation to a police officer taken in conjunction with the definition of complaint contained in Section 4 (1-A). In the latter section complaint is defined as "the allegation made orally or in writing to a Magistrate, with a view to his faking action under this Code that some person, whether known or unknown has committed an offence" and Section 202 which gives the Magistrate the power to refer a matter for investigation by a police officer is in term restricted by defining the occasion on which he may so act by the word "on receipt of a complaint of an offence of which he is authorised to make cognizance." It is argued that as a petition under Section 107 does not allege the commission of an offence but merely the apprehension that an offence may be committed, the Magistrate has no jurisdiction to order a police investigation. From this it would follow that the investigation is one not authorised by the Code and it is said to follow that the statements made on such an occasion cannot be supposed to be absolutely privileged. It is further pointed out that, on the principle of expressum facit cessare taciturn where the Code indicates that absolute privilege should attach to statements, it has done so by implication under Section 161. That S. makes a person interrogated by a police officer making an investigation bound to answer all questions relating to the case put to him by the Police Officer. Unfortunately the investigation dealt with by Section 161 is limited to an investigation made under Chapter XIV of the Code which relates to information as to the commission of a cognizable offence. I have already stated that this was not a case of an offence at all but merely a threatened or contemplated offence. The argument is thus two-fold first that the Magistrate had no jurisdiction to refer the case for investigation at all, and secondly, that even if he had, as the information did not relate to the commission of an offence, the witness was under no necessity to answer questions put to him and the