K. Jayachandra Reddy, J. - (1.) These two appeals arise out of the same order of the High Court of Kerala dismissing two Cr. M. Ps. filed by the Customers Officers under S. 482, Cr. P. C. The respondent herein Shri C. L. Subramaniam, who was a subordinate to the appellants, was common respondent in both those Cr. M. Ps. before the High Court. He filed two writ petitions under Art. 226 of the Constitution of India against the appellants in connection with his promotion and transfer. The appellants herein who figured as respondents in those writ petitions filed counter-affidavit making certain averments. Shri C. L. Subramaniam, the respondent herein filed two complaints under S. 200, Cr. P. C. before the Chief Judical Magistrate, Ernakulam for offence punishable under Ss. 500 read with 34, I.P.C. alleging that in the said counter-affidavit, the appellants have made defamatory statements. The Chief Judicial Magistrate took cognizance of the offence complained of and issued process and summoned the appellants to face the trial. The appellants filed two Cr. M. Ps. under Section 482, Cr.P.C. in the High Court for quashing the complaints on the ground that the Chief Judicial Magistrate had no jurisdiction to take cognizance of the offence in the absence of any sanction under Section 197, Cr.P.C. by the Government and also on the ground that they were entitled to the benefit under the 9th Exception to Section 499, I.P.C. By the impugned judgment, the learned single Judge of the High Court dismissed both the Cr. M.Ps. Hence the present appeals.
(2.) The appellants contended before the High Court that the affidavit was filed by them on behalf of the Customs authorities stating the facts and circumstances relating to the transfer of the respondent and his non-selection purely in discharge of their official duties and therefore the same cannot be made the basis for cognizance of the offence without the necessary sanction being accorded by the Government and also that imputations, if any, in the counter-affidavit were made in good faith for the protection of the interests of the Government and also for the public good and therefore it does not amount to defamation as per the 9th Exception to Sec. 499, I.P.C. The learned single Judge firstly observed that the question whether sanction is required or not is a mixed question of law and fact and that the act constituting the offence must be directly and reasonably connected with the official duty. Then the learned Judge referred to some decisions. Thereafter the learned Judge observed that the sum and substance of the imputations in the counter-affidavit is that the respondent was corrupt and the motivation in asking for the transfer was to facilitate his corrupt practices and if there were to be no basis for such a statement or if it was not necessary to make such a statement for the sake of defence in that case then the plea of the respondent that such a statement was actuated by ill-will per se may not amount to acting or purporting to act in the discharge of the official duties and the question of sanction may not arise. Having taken this view the learned Judge held that the High Court under S. 482, Cr. P.C. cannot collect materials to decide whether in making the alleged statements in the counter-affidavit the petitioners were acting or purporting to act in the discharge of their official duties and that it is open to the parties to place all the relevant materials before the Magistrate and make a request to decide whether the sanction was necessary or not. Regarding the 9th Exception of S. 499, I.P.C. the learned Judge held that the same cannot be decided by the High Court while exercising inherent powers and that the petitioners would have to prove before the Magistrate that they made the imputations in the counter-affidavit in good faith for protection of their official interests or for public good and that burden would be on the accused to prove the benefit of any exception taking away his act from the purview of the penal provisions.
(3.) In these appeals before us, we do not purpose to go into the question whether the said 9th Exception to S. 499, I.P.C. is attracted or not. We shall however examine the respective contentions in respect of scope of Sec. 197, Cr. P.C. and the necessary sanction that is to be accorded thereunder in such cases. To appreciate the question precisely we may state few relevant facts. As we find from the records, the respondent was as senior grade Preventive Officer at the relevant time. In the month of May 1982 he was served with a transfer order issued by the Assistant Collector of Customs, who is one of the appellants herein, transferring him from Town Unit to Cochin Shipyard. He filed a writ petition before the High Court which was admitted and notice was ordered. In that Shri N. Sasidharan, Under-Secretary, Ministry of Finance, Department of Revenue, one of the appellants herein, filed a counter-affidavit on his behalf as well as on behalf of other respondents. The writ petition was, however, dismissed. According to the respondent (complainant) certain imputations were made in the affidavit which amounted to defamation. In the complaint the averments in some of the paragraphs in the counter-affidavit have been extracted and it is alleged that the said statements in the counter-affidavit are nothing but a figment of imagination and that per se amounts to defamation punishable under Ss. 500 read with 34, I.P.C.;