Report No. 33
43. Privilege for first information report.-
There is, we note, a conflict of decisions on the question whether a statement made by way of First Information Report1 possesses qualified privilege2-3, or whether the privilege is absolute on the ground that it is a step towards a judicial proceeding4-5.
1. Section 154, Code of Criminal Procedure, 1898.
2. Mojju v. Lachman Prasad, ILR 46 All 671: AIR 1924 All 435 (FB).
3. Balamnal v. Pataudi Naidu, AIR 1938 Mad 164 (DB).
4. Bira Gareri v. Dulhin Somaria, AIR 1962 Pat 229 (223), para. 6 (Ramaswami C.J. and Untawalia J.).
5. See also paras. 28-29, supra.
44. The position in England was thus stated by Blagden J. in a very exhaustive judgment1.
'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 Assize 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 from 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.'.
1. Mayr v. Rivaz, ILR (1943) 1 Cal 250 (265) (Blagden J.).
45. We do not elaborate this point. Whichever view is correct, the difficulty which we have in minds-the prospect of the institution of a suit-is not eliminated.
1. Para. 36, supra.