Wijegunatileke V. Joni Appu

Present : Bertram C.J. and Schneider A.J.   1920.

WIJEGUNATILEKE v. JONI APPU.

108-D. C. Kalutara, 8,394.

False statement made by a person before the police implicating another- Inquiry by police under Criminal Procedure Code, chapter XII.- Privilege-Action for damages-Malicious prosecution.

At a preliminary inquiry by the police under chapter XII. of the Criminal Procedure Code the defendant made a false statement to the police implicating the plaintiff in an affray.

Held, that as the statement was made on a privileged occasion, an action for damages did not lie against him.

THE facts appear from the judgment.

A. St. V. Jayawardene, for defendant, appellant.

H. J. C. Pereira, for plaintiff, respondent.

Cur. adv. vult.

December 2, 1920. BERTRAM C.J.-

I have read and agree with the judgment of Schneider A.J. I would only add that the conclusion of this Court appears to be in harmony with the principle observed in the Courts of South Africa. I cite the following passage from Nathan's Common Law of South Africa, vol. III., para. 1643, the case referred to not being available locally:-

"The defendant must have set the criminal law in motion that is, he must have voluntarily instituted criminal proceedings. If A is asked by the civil authorities, or, where martial law is in force, by the military authorities, to make an affidavit concerning certain acts of B, and A makes an affidavit stating certain facts which, if true, would constitute a crime, in consequence whereof B is prosecuted at the public instance, A is in the position of mere witness, and his affidavit will not be regarded as having been made by him voluntarily with a view to securing the prosecution of B. (Michau v. Westerman.1[10 C. T. R. 671.])"

SCHNEIDER A.J.-

For the purpose of this appeal I would take the following to be the facts:-

The President of a Village Tribunal reported to the police that an affray had taken place between some Tamil labourers on the . one side and a number of Sinhalese villagers on the other. The President's own observations told him that the affray was of a serious nature. An Assistant Superintendent of Police proceeded to the spot and began an inquiry into the occurrence, but shortly afterwards he handed this to a Sub-Inspector. This officer examined a number of witnesses. In the course of his inquiry it transpired that the boutique of Lewis, one of the witnesses examined by him, had been looted, and that the defendant owned the adjoining boutique. The Sub-Inspector questioned the defendant. He told him that he knew nothing. The Sub-Inspector then pressed the defendant to disclose what he knew, presumably because he had been told that the defendant was present in his boutique at the time of the occurrence. The defendant then stated to him that he saw the plaintiff with a club among the crowd, but that he did not see him do anything.

As a result of the inquiry the Sub-Inspector, under the instructions of the Assistant Superintendent of Police, made a report to the Police Court under section 148 (b) of the Criminal Procedure Code, in which he charged four Tamils and seven Sinhalese-the plaintiff being the fifth accused-with having committed an affray. In his list of witnesses for the prosecution the name of the defendant was not given. In the course of the Police Court trial the President of the Village Tribunal when giving evidence stated that the names of the Sinhalese who had run away from inside a boutique upon his approach were given to him by Lewis and the defendant. The names were those of the tenth and eleventh accused. The defendant was called as a witness presumably because of this statement. In his evidence he stated that he identified the fifth, sixth, seventh, eighth, ninth, tenth, and eleventh accused, and three other Sinhalese in the crowd during the affray. These three others, whose names he mentioned, were not among those who were o

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