V. Bhaskaran Nambiar, J.
1. I do not think that discipline in a Government office should erode to such an extent as to encourage a Government servant to file a complaint in a criminal court alleging that entries in a confidential report made by his superior officer are defamatory.
2. The petitioner is a Superintendent of the R.M.S, Division and the respondent is the Head Sorting Assistant, a subordinate of the Superintendent. The petitioner as an authority competent to make entries in the Confidential report of the respondent stated that the respondent did not have adequate grasp of the subject, he was 'argumentative' and described him as 'defiant' and 'not very devoted to duty' and stated that he was not industrious'. It was added further that he was not 'trustworthy' and 'is not a very satisfactory worker'.
3. The respondent alleged that these statements made were per se defamatory and that they were communicated not according to the procedure prescribed under the administrative manual, but were typed and forwarded to the Sub Record Officer, Badagara, the immediate superior of the respondent. He also alleged that in the Office of the S.R.O., Badagara, a class IV employee who carried it to get the stamp impressed, had also seen the communication. A complaint was, therefore, filed alleging that the Superintendent was guilty of the offence under Section 500, I.P.C.
4. The lower court took cognizance of the case and directed notice to be issued to the accused. The accused, the Superintendent of the Railway Mails Division has filed this application under Section 482 of the Code to quash the .whole proceedings.
5. It is contended that the complaint could not have been filed without the necessary sanction under Section 197 of the Code, that the entries made in the confidential report are protected by exceptions 2 and 7 to Section 499, I.P.C., that the entries made are not defamatory; that there has been no publication of that communication and even if there was any irregularity in the process of communication, it could not land the accused in a criminal court. It was also contended that if the respondent was aggrieved by the adverse entry made against him in the confidential report, his remedy was to make representation as provided under the rules applicable to him and not rush to a court with a complaint.
6. The learned Counsel for the respondent, however, submitted that the question as to whether sanction was required or not is a matter on which evidence has to be adduced and could not be decided now at this stage. He was frank enough to submit that an entry in a confidential report cannot amount to defamation; but if those entries are not communicated 'confidentially' to the person to whom it is addressed, it will constitute defamation attracting the penal provision.
7. He also submitted that when the petitioner contends that he is entitled to the benefit of the exception, it is not a question to be decided at the initial stage but only later at the final stage when the entire evidence is taken. He stressed the fact that the onus lay on the accused to prove that he was entitled to the protection of exception.
8. I am not considering the question whether sanction is required or not as it is a mixed question of fact and law and it cannot be decided at this stage when no evidence has been let in.
9. An entry in the confidential report of a subordinate officer by his superior is an opinion which the officer is entitled to make respecting the conduct of a public servant in the discharge of his public duties. These entries have the statutory protection of exceptions 2 and 7 specifically engrafted in Section 499, I.P.C. An entry in a confidential report in respect of the conduct of a public servant regarding his suitability, ability, integrity, etc., in the discharge of his duties cannot give rise to a criminal complaint of defamation. The person aggrieved by the remarks has his remedy under the relevant rules or administrative instructions to move the higher authority or the same authority to expunge the remarks. He cannot have any remedy in criminal law and procedure. He cannot have special rights to ignore the rules and circulars binding on him and to make a public grievance of an official Act and then drag his officer to a court, an aggressive posture not countenanced by the discipline in service or under the criminal law.
10. It is true, that the onus is on the accused to prove the exception contained in Section 499, I.P.C. If the complaint itself discloses the ingredients necessary to attract the exceptions mentioned in Section 499, I.P.C., it follows that the complaint does not disclose an offence. It is unnecessary then to direct any further proof or allow the proceedings to continue. The complaint has no legs to stand and has thus to fall without any support. The proceedings if continued will be an abuse of the process of the Court.
11. Rightly, therefore, the Counsel for the respondent contended that even if the entries cannot form the basis of a criminal action, an unwarranted publication of the confidential remark justified initiation of the criminal process.
12. Publication of defamation is itself defamation. Communication of an official entry in a confidential report x>f, a superior officer through the official channel cannot be described as publication to warrant initiation of a prosecution for defamation.
13. In this case the report was sent to the respondent through his immediate superior and it was served by the person who put the seal of the office. It cannot be said that there was any mistake in communication or that it was communicated to a wrong person. Any minor irregularity, even if there is any, in the form of communication does not affect the substance of publication to attract a case for defamation.
In the result, the continuation of the criminal proceedings by the R.M.S. Head Sorting Assistant, the respondent against his Superintendent will be an abuse of the process of the Court. The complaint does not disclose any offence under Section 500, I.P.C. The proceedings initiated in C.C. No. 25/84 by the Chief Judicial Magistrate's Court, Kozhikode, shall stand quashed.