ORDER: 1. First respondent is common in both cases and he is a subordinate of the petitioners in the Customs Department. In connection with his promnotion and transfer back to a place first respondent filed two Original Petitions before this Court under Article 226 of the Constitution against the petitioners as O.P. Nos.4590 and 7701 of 1982. In the counter-affidavits filed by the petitioners, as respondent in those cases, they said “The motivation for asking for posting is obvious. While working as Air Customs Officer at Madras a lady passenger made a complaint against the petitioner (first respondent herein) that he demanded money”. Alleging that this defamatory imputation was made in furtherance of the common intention of the petitioners, first respondent filed C.C.Nos.113 and 124 of 1983 before the Chief Judicial Magistrate, Ernakulam for an offence punishable under S.500 read with S.34 of the Indian Penal Code. These two Criminal Miscellaneous Cases are for quashing the proceedings in those two cases in exercise of the inherent powers of this Court. 2. The Magistrate took cognizance of the offence and issued process. Nobody had a case before me that the imputation was not made or published or that it is not per as defamatory. If so evidently the complaints disclose the offence. The two grounds relied on by the petitioners for quashing the complains are: (1) The Magistrate acted illegally in taking cognizance without the complainant producing saction for prosecution and (2) They are entitled to the benefit of the 9th Exception to S.499 of the Indian Penal Code. 3. Nosmally when a competent magistrate takes cognizance of an offence on the basis of information which discloses commission of the offence the accused will have to stand trial before the magistrate taking all the available defence. Both sides should have the opportunity of placing all the relevant materials on which the magistrate will have to give his verdict. Then the normal remedies of appeal or revision must follow as the concerned parties desire. Interference by the High Court in the trial of such cases in exercise of the inherent powers saved under S, 482 of the Code of Criminal Procedure could only be in exceptional cases in order to avert an illegality and the consequent miscarriage of justice when no other provision is available, to set the law in motion. Interference by the High Court in the trial of such cases in exercise of the inherent powers saved under S, 482 of the Code of Criminal Procedure could only be in exceptional cases in order to avert an illegality and the consequent miscarriage of justice when no other provision is available, to set the law in motion. Taking cognizance of an offence on the basis of a complaint which does not disclose the offence will be an illegality. So also it may be illegal to take cognizance on the basis of a complaint filed by a person who is not competent to set the law in motion. Same may be the case in which cognizance is taken without the requisite sanction when, as in S. 197 of the Code, it is provided that no court shall take cognizance except with the previous sanction. These are only instances which are not exhaustive. In all such cases it is a question of illegality affecting the very jurisdiction of the court to try the case. When the cognizance itself is illegal and thus without jurisdiction the accused cannot be asked to go and stand his trial before the magistrate pointing out the illegality. That will amount to harassment and injustice which will have to be avoided. On the basis of such a trial no conviction could follow and the purpose of the trial cannot be bringing an offender to justice for which along a criminal trial could be had. In such cases this Court will be fully justified in avoiding the ordeal of the trial by quashing the complaint in exercise of the inherent powers. 4. Under S. 197 of the Code when a public servant not removable from office save by or with the sanction of the Government is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the concerned authority. This provision is not an empty formality. In this case there is no dispute regarding the fact that sanction is required provided the petitioners were ‘acting or purporting to act in the discharge of official duties’. If they were so acting the discretion must be with the concerned authority to decide whether they are liable to be prosecuted or not. This provision is not an empty formality. In this case there is no dispute regarding the fact that sanction is required provided the petitioners were ‘acting or purporting to act in the discharge of official duties’. If they were so acting the discretion must be with the concerned authority to decide whether they are liable to be prosecuted or not. The provision is intended to safeguard against honest official actions being made the subject-matter of prosecution. A process of screening is involved before showing the green signal for a prosecution. All the relevant facts and materials must be made available to the authority and the decision either way should be after applying the mind to these materials. In a case where sanction is required, prosecution without sanction will be an illegality and the cognizance also will be an illegality because the concerned authority did not have the opportunity to consider and decide whether prosecution is to be had or not. That is a matter affecting jurisdiction of the court which takes cognizance. 5. But in this case the question whether sanction is required or not itself is a point in dispute. First respondent says that he was getting unfair deals at the hands of the petitioners on account of enmity and therefore he had to fight out some litigations upto the Supreme Court where he ultimately won. According to him the impugned imputation was not only false and not borne out of any record but unnecessary for the defence in the Original Petitions. He would say that it was only aimed at maligning him out of enmity and cannot be said to be in the course of acting of purporting to act in the discharge of official duties. His further case is that even though sanction is not necessary he has written for sanction by way of abundant caution and in one case, to his knowledge, it was ordered that no sanction is necessary. None of those papers are available in the case. 6. So far as this case is concerned the question whether sanction is required or not has become a mixed question of law and fact. Materials are necessary to decide whether the petitioners were acting or purporting to act in the discharge of official duties while making the alleged imputations. It is no part of the official duty of a public servant to commit an offence. Materials are necessary to decide whether the petitioners were acting or purporting to act in the discharge of official duties while making the alleged imputations. It is no part of the official duty of a public servant to commit an offence. At the same time bona fide official actions must get protection even if those actions could amount to offence. Otherwise bona fide discharge of official duties may sometimes become difficult on account of the risk of prosecution. The act constituting the offence must be directly and reasonably connected with the official duty. There must be direct and reasonable nexus between the act and the official duty. The real test will be whether the officer could reasonably claim the action to be part of his official duty when it is challenged. A fanciful claim will not be sufficient. In a case where motivation other than honest discharge of official duties is patent and the alleged official act challenged to be an offence has no legs to stand, a claim that it was acting or purporting to act in the discharge of official duties may not be accepted by a court. The act must be one which the officer could bonafide and reasonably claimto have done by virtue of his office. It may not matter even if there was a little bit of excess than what is strictly necessary for the discharge of official duty provided there is bona fide and reasonableness. A bona fide mistake regarding the exigencies of ther situation also may be capable of bringing the act within the protection. These aspects were elaborately considered by Bhat, J in Somarajan v. Jayakumar Somarajan v. Jayakumar (1983) K.L.T. 756. 7. So far as these two cases are concerned, the petitioners say that saction is required not only under S. 197 of the Code, but also under Rule 19 of the Central Civil Services Conduct Rules. But under Rule 19 also sanction is contemplated only regarding vindication of any official act. 8. In B.S. Sambhu v. T.S. Krishnaswamy B.S. Sambhu v. T.S. Krishnaswamy (1983) 1 S.C.J. 224: (1983) MLJ. (Crl) 435: (1983)Crl. L.J. 158: (1983) 1 S.C.C. 11 : (1983) S.C.C. (Crl) 123: A.I.R. 1983 S.C. 64. But under Rule 19 also sanction is contemplated only regarding vindication of any official act. 8. In B.S. Sambhu v. T.S. Krishnaswamy B.S. Sambhu v. T.S. Krishnaswamy (1983) 1 S.C.J. 224: (1983) MLJ. (Crl) 435: (1983)Crl. L.J. 158: (1983) 1 S.C.C. 11 : (1983) S.C.C. (Crl) 123: A.I.R. 1983 S.C. 64. Their Lordships were dealing with a case in which in the remarks submitted by a Munsiff-Magistrate to the District Judge in a transfer petition the Advocate who filled the transfer petition was described as a rowdy and a big gambler and a mischievous element. It was held that the act had no connection with the discharge of official duty and hence S. 197 of the Code is not attracted. Here the sum and substance of the imputation is to facilitate the his corrupt practices. If there was no basis for this statement or it was not necessary for the defence in that case and it was actuated by ill will as contended by the first respondent it may not amount to acting or purportiong to act in the discharge of the official duties and the question of sanction may not arise. It is not each and every act of a public servant that will get protection under S. 197. In this proceedings under S. 482 of the Code this Court cannot collect materials to decide whether in making the alleged statement the petitioners were acting or purporting to act in the discharge of their official duties. Before the Magistrate the parties could place all the relevant materials and make a request to decide whether sanction is necessary or not. 9. The claim based on Exception 9 to S. 499 of the Indian Penal Code also cannot be decided by this Court in exercise of the inherent powers. In order to establish the benefit of the exception the petitioners will have to prove the Magistrate that they made the imputation in good faith for the protection of their official inherent or for public good proof of exception will arise only when the offence is established. Without an offence there cannot be an exception. It is the exception that takes away the act from the purview of the penal provisions and makes it not an offence. Burden is on the accused to prove the benefit of any exception which takes away his act from the penal provisions. Without an offence there cannot be an exception. It is the exception that takes away the act from the purview of the penal provisions and makes it not an offence. Burden is on the accused to prove the benefit of any exception which takes away his act from the penal provisions. Burden of proof in that respect will not be as onerous as that of the prosecution in proving the offence. But any how it is within the powers and functions of the magistrate during trial to evalute the evidence and decide whether any of the exceptions are attracted. The party who gets defeated in that respect must have the opportunity to challenge that finding in the appropriate form. The functions and powers of the magistrate in that respect cannot be usurped by this Court in exercise of the inherent powers especially when the availability of the exception itself is in dispute and the matter requires evidence. What has to be achieved during trial in the normal course cannot be allowed to be gained by the short-cut method of a proceeding under S. 482. 10. Learned counsel for the petitioners brought to my notice the decision in Bhimanagouda v. Malleshappa Bhimanagouda v. Malleshappa (1980) 1 Karn. L.J. 123. In that case the statement in a plaint or affidavit that the complainant was a rowdy type of man and an ex-convict was held to come under Exception 9 to S. 499, IPC, since it was proved to be in good faith and in the interest of the accused. That finding was in an appeal against the acquittal in that case. So far as we are concerned trial of the case itself has not commenced. That decision cannot in any way help the petitioners. The Criminal Miscellaneous Cases are therefore dismissed. Petitions dismissed.