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TMI Blog1994 (9) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appellant 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 Sections 500 read with 34 I.P.C. 4. To appreciate the points involved, we may refer to the averments in the said counter affidavit. In Paragraph 2 it is stated that the deponent was authorised to swear the affidavit on behalf of other respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her enquiry into his misconduct was necessary. These and some such similar averments in the counter-affidavit were made the basis of the complaints for an offence of defamation. 5. Viewed from another angle, from what has been stated above it is crystal clear that the counter-affidavit was filed on behalf of the accused-respondents in their defence to the allegations made in the writ petition by the respondent. Therefore whatever imputations that have been made in the counter-affidavit were made certainly while acting or purporting to act in the discharge of the official duties. The imputations which according to the complainant amounts to defamation cannot in any manner said to be not in connection with the official duty. The appellants made these alleged imputations only by virtue of their office while filing the counter-affidavit. The contents of the complaint and the averments in the counter-affidavit are so closely inter-related and no further material is necessary to examine this aspect. 6. If the provisions of Section 197 Cr.P.C. are examined, it is manifest that two conditions must be fulfilled before they become applicable; one is that the offence mentioned therein m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul claim,that he did it in the course of the performance of his duty. Approving these principles this Court in Pukhraj v. State of Rajasthan and Anr. this Court observed as under: The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed by a public servant in an act done or purporting to be done in the execution of duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nconnected or not reasonably connected with the official duties. These statements in the counter-affidavit were made by the appellants definitely while acting or atleast purporting to act in discharge of the official duties namely filing the same in their defence to the allegations made in the writ petition which they had to do. 7. The respondent, however, contended that he wrote a letter to the customs authorities by way of abundant caution asking for sanction for prosecuting the appellants and that the customs authorities replied that the permission sought by him was not necessary. A copy of the said reply dated 14.2.93 is placed before us for the first time. A similar contention was rejected by the High Court in the impugned order on the ground that no such papers were available in the case. However, we have perused the reply but from that alone it cannot be said that the provisions of Section 197 Cr.P.C. are not attracted under the facts and circumstances of the case. Except stating that the permission sought by him on the above subject is not necessary in accordance with the Govt. of India decision No. 10 under Rule 3 of the C.C.S. (Conduct) Rules there is nothing else to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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