ORDER: The instant criminal original petition is to call for the records and quash the proceedings in C.C.No.1 of 1997 on the file of the Assistant Sessions Judge, Salem. 2. The facts relevant for the purpose of this case briefly stated are as under: The petitioner Dr.Chella Kumar is a Member of Tamil Nadu Legislative Assembly, who has been chosen by the citizens of the Constituency. He also happens to be the President of the Tamil Manila Congress (Youth Wing). Mr.Veerapandi Arumugham is a Cabinet Minister in the Government of Tamil Nadu, who is assigned with the portfolio of Agriculture. On 15.3.1997, the Minister announced on the Floor of the Assembly about implementation of Tree Planting Scheme. Later, regarding this scheme, the petitioner made certain comments outside the Floor of the Assembly which were reported in the Vernacular Dailies, regarding which, the Government felt that the petitioner has made defamatory statement and therefore, they sanctioned prosecution of the petitioner under Sec.500, I.P.C. Accordingly, the Public Prosecutor, Salem filed a private complaint before the learned Assistant Sessions Judge, Salem, who took cognizance of the matter and issued summons. Now, questioning the competency of issuance of summons, the petitioner has come forward with the instant criminal original petition. 3. The petitioner had raised three grounds in this Criminal Original Petition. According to him, (i) the complaint, is bereft of the averments necessary to constitute an offence required under Explanation 4 to Sec.499, I.P.C. (ii) no supporting affidavit from the Minister has been filed and in the absence of such supporting affidavit, it cannot be said that the Minister is the person aggrieved; (iii) he had made the comment in his capacity as a sitting M.L.A. and therefore, he enjoys a privilege, in that no direct prosecution can be resorted against him and instead, the matter should have been referred to the Privilege Committee of the Assembly; and (iv) the remarks made by him is an opinion made in good faith and for public good and therefore, it comes under Exceptions 8 and 9 to Sec. 499, I.P.C. 4. The learned Public Prosecutor submitted that the judicial discretion either to drop or not to drop proceedings rest with the learned Sessions Judge and therefore, it cannot be done at the instance of the party. The learned Public Prosecutor made his submissions on the points raised by the petitioner. 5. The learned Public Prosecutor submitted that the judicial discretion either to drop or not to drop proceedings rest with the learned Sessions Judge and therefore, it cannot be done at the instance of the party. The learned Public Prosecutor made his submissions on the points raised by the petitioner. 5. Heard both the sides, Sec.499 with Fourth Explanation reads as under: “499. Defamation: Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said except in the cases hereinafter excepted, to defame that person. Explanation 4. No imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the credit of that person, in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.” 6. It is submitted by Mr.Panchabakesan, the counsel for the petitioner that the averments necessary to constitute an offence as required under Explanation 4 to Sec.499, I.P.C. are absent and therefore, the learned Sessions Judge ought not to have taken cognizance of the matter. In support of his submissions, the learned Counsel referred to the following decisions: In Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi, (1997) Crl.L.J. 212, where in an interview published in a film magazine, the petitioner therein Shatrughna Prasad Sinha was alleged to have made a statement that marvari community have no faith and love towards India, their mother land and such statement was alleged to be defamatory, it was held that the statement was of general character and that was not sufficient to constitute an offence of defamation. In Ashok Chaturvedi v. Shitul H.Chanchani, A.I.R. 1998 S.C. 2796, where the facts of the case involved making a bald allegation in complaint that shares of complainant have been transferred to forged signature and there was no iota of material to indicate how all or any of the accused were involved in that forgery and further, the statement of the complainant as well as the witnesses having not lent any support to the case, the Apex Court held that no prima facie case is made out in the private complaint under Secs.406, 420, 467, 468 and 130-B, I.P.C. The above case relates to a private complaint given by the private individual on the basis of which before taking cognizance, the Magistrate has examined the complainant and witnesses. 7. Now, that sanction has been accorded by the Government to the Public Prosecutor to prosecute the petitioner. In discharge of his duty, the Public Prosecutor, Salem has preferred the complaint. When such a complaint is made to the Magistrate before the Magistrate takes cognizance of the offence on the complaint, so as to take the other steps, the complaint shall contain all the necessary facts constituting an offence for which the complaint was laid, so that the Magistrate can proceed with further steps after cognizance of the offence is taken by issuing process, etc. The averments in the instant complaint that the petitioner herein had stated, In the complaint, it is stated that such statement had caused harm to the reputation of the Minister and lower his esteem in the eyes of the general public. The learned Sessions Judge has rightly held that the averment in the complaint constitute an offence as required under Sec.499, I.P.C. 8. The next contention is that the supporting affidavit from the Minister has not been enclosed with the complaint. Of course, the whole criminal law has been set in motion on the complaint by the Public Prosecutor, Salem. In other words, it is a private complaint. Sec.200 of the Code of Criminal Procedure recites as under: “200. Examination of complainant. The next contention is that the supporting affidavit from the Minister has not been enclosed with the complaint. Of course, the whole criminal law has been set in motion on the complaint by the Public Prosecutor, Salem. In other words, it is a private complaint. Sec.200 of the Code of Criminal Procedure recites as under: “200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complaint and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his Official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Sec.192; Provided further if the Magistrate makes over the case to another Magistrate under Sec.192 after examining the complaint and the witness, the latter Magistrate need not re-examine them.” Therefore, if a oral complaint is made, the Magistrate shall examine the complainant and witness present in person and reduce in substance of the complaint in writing, which shall be signed by the complainant and witnesses. If a written complaint is made, the Magistrate need not examine the witnesses, especially when he is a public servant acting or purporting to act in the discharge of his official duty. 9. The petitioner claims privilege, Mr.V. Anantharaju, learned counsel for the petitioner submitted that the petitioner is a sitting M.L.A. he has commented about the certain announcements made by the Minister concerned in the Floor of the House, and such comment was made in his capacity as a sitting M.L.A., which would not harm the reputation of the Minister. 10. The learned Public Prosecutor submitted that such comment was not made in the Floor of the Assembly to treat the same as a privileged speech for making a reference to the Privilege Committee of the House, but it has been made outside the Floor of the House and therefore, it cannot be said that the petitioner has enjoyed any privilege in making such comment. I agree with the learned Public Prosecutor that the allegation, if proved, would show that it was made outside the Assembly house and the petitioner cannot seek protection of privilege. 11. Lastly, the learned counsel for the petitioner submitted that even if what has been stated in the complaint is true, the comment has to be considered as the opinion made in good faith and for public good and therefore, it comes under Eighth and Ninth Exceptions to Sec.499, I.P.C. Eighth and Ninth Exceptions to Sec.499, I.P.C. read as under: "Accusation preferred in good faith to authorised person. Eighth Exception. It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation." "Imputation made in good faith by person for protection of his brother’s interests.-Ninth Exception: It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or for any other person, or for the public good." 12. In support of his contention, the learned counsel for the petitioner referred to various decisions, where the alleged defamatory statements were held to have been made in good faith. The decisions cited by the counsel are as under: (i) Balasubramania v. Rajagopalachariar, A.I.R. 1944 Mad. 484; (ii) Sewalram Sobhani v. R.K.Karanjia, 1981 S.C.C. (Crl.) 698 and (iii) Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi, (1997) Crl.L.J. 212. All the decisions cited relate to certain publications made in the Newspaper/ Weeklies where the persons responsible to print and publish the newspapers and weeklies were prosecuted. In those cases, it was held that the publications were in good faith without any mala fides against whom the publications were made. The ratio laid down in those decisions are not applicable to the facts of the instant case, because this is not a case where editors or publishers of the dailies in which the statements appear are hauled up for defamation. 13. The learned counsel for the petitioner drew my attention to the decision reported in Rajendra Kumar Sitaram Pande v. Uttam and another, A.I.R. 1999 S.C. 1028. 13. The learned counsel for the petitioner drew my attention to the decision reported in Rajendra Kumar Sitaram Pande v. Uttam and another, A.I.R. 1999 S.C. 1028. That was a case where the accused complained to the superior officers about the misconduct of the complainant and in the departmental enquiry, the complainant was found guilty. On the basis of the same allegations, the complainant preferred a private complaint under Sec.499, I.P.C. It was held that the complaint was made to the Superior Officer of the complainant by the accused was in good faith and it was covered by Eighth Exception to Sec.499, I.P.C. 14. Sec.52, I.P.C. defines what is good faith, which reads as under: "Good faith".-"Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention." Analysing the statement said to have been made by the petitioner, it cannot be said that it was made in good faith to protect the interest of the Minister and the statement was made for the public good 15. The learned Public Prosecutor submitted that if the petitioner is to seek imputation under any of the exceptions, the burden lies upon him and it is for him to prove that it will come within the exception at the time of the trial before the Magistrate. At this juncture, it would be useful to recall the provisions of Sec.105 of the Evidence Act, which reads as under: "105. Burden of proving that case of accused comes within exceptions.-When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other part of the same code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances." It is thus evident that the initial presumption is absence of exception and the burden of proving exception from criminal responsibility by reason of good faith lies upon the accused, namely, the petitioner herein. If it is apparent from the evidence on record that a general exception would apply, of course, even in the absence of the accused, letting in any evidence, the court can consider whether the evidence on record proves to its satisfaction that the accused comes within the exception. In the instant case, the trial is to yet to commence. Bare reading of the complaint itself would prima facie indicate the presence of ingredients for making an offence under Sec.499, I.P.C. In fact, the complaint reads that the Minister gave a chance to the petitioner to rectify his attitude, but the petitioner made further imputative statements which were published in the Tamil Daily on 13.6.1997 that he stood by the allegation which he had made against the Minister and he was prepared to face the prosecution in Court. When that is the case, it cannot be said that the provision of Sec.52, I.P.C. are attracted or that a prima facie case to attract Eighth and Ninth Exceptions to Sec.499, I.P.C. is made out. It is for the petitioner to establish the good faith and fair comment at the time of trial. I feel that the learned Assistant Sessions Judge had come to a right conclusion that there is no illegality in issuance of summons and the further proceedings cannot be dropped. Accordingly, this Crl.O.P. is dismissed. Consequently, Crl.M.P.No.3935 of 1998 is also dismissed and Crl.M.P.No.3570 of 1999 is closed.