Present: Branch C.J. and Garvin J.

LEISA v. SIYATUHAMY.

171-D. C. Kegalla, 6,600.

    Defamation-Statement made in course of proceedings in answer to Magistrate-Privilege.

An unsworn statement made by a headman, in the course of proceedings before a Police Magistrate, in answer to questions put by the Magistrate is absolutely privileged.

ACTION for defamation brought against the defendant, a village headman, by the plaintiff, a resident of his wasama. It was based upon a statement made by the defendant, in answer to the Police Magistrate, in the course of a case in which the plaintiff charged certain persons with assaulting and robbing her. During the course of the proceedings in the Police Court the plaintiff was cross-examined as to her moral character, and when objection was taken to these questions, on the ground that there was no foundation for the allegations, it was suggested to the Magistrate that the defendant should be called and questioned on the point. While the plaintiff was in the witness box the defendant was summoned into court, and in answer to a question stated that " the plaintiff's house is a house of prostitutes." The learned District Judge held, that the defendant made the statement, without sufficient ground or material, and awarded the plaintiff fifty rupees as damages.

Drieberg, K.C. (with him H.V. Perera), for defendant, appellant.- The learned Judge was wrong in thinking the statement was not privileged. In Silva v. Balasuriya1 the court only considered the case of a witness making a statement in the witness box. It did not consider at all the case of a statement not made on oath or affirmation. Generally speaking, privilege is extended not because it is sworn testimony but on grounds of public policy.

Privilege is extended to judges, counsel, witnesses, and parties. (Royal Aquarium and Winter Garden Society v. Parkinson.2)

Privilege extended to witness in witness box is extended to the preliminary statement made by him to his solicitor before trial. (Watson v. J. M'Ewan3).

In Wijeygoonetileke v. John Appu4 privilege was extended to statements other than those on sworn testimony.

1 (1911) 14 N. L. R. 452.
2 (1892) 1 Q. B. (at page 451).
3 (1905)4. C. 480.
4 (1920) 22 N. L. R. 231.

 Statements made to Police Office tinder Chapter XII., Criminal  Procedure Code, are privileged.

Section 166, Evidence Act, allows Judges to ask questions from witnesses. There is no irregularity in it. This is also allowed by section 429, Criminal Procedure Code.

Even if it is qualified privilege, express malice must be proved to support a claim for defamation, Fernando v. Peiris.

F. J. Soertsz (with him Ranawake), for plaintiff, respondent.-No privilege is available here. This benefit is available only if he is a witness in the case and the testimony is on oath (Odgers on Libel and Slander, 4th Edition, page 227); Trotman v. Dunn.3

The facts show that the statement was irrelevant, and malice is therefore present.

December 15, 1925. BRANCH C.J.-

The facts of this case are shortly as follows:-The defendant, Siyathuhamy, is a village headman, and is the Gan-Arachchi of Eturupotha wasama, and the plaintiff is a resident of that wasama. In August, 1923, the plaintiff was the complainant in a Police Court case in which certain persons were charged with assaulting and robbing her. The defendant, in his capacity as village headman, had made the usual report as to the offence, and came to the courthouse on the day of the trial. He had not been summoned as a witness, but his evidence is that he was asked by the Police to come to court and give evidence for the prosecution. The learned District Judge thinks he came to the court as a spectator merely. During the course of the case the plaintiff was cross-examined as to her moral character, and when objection was taken by her proctor to these questions, on the ground that there was no foundation