IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.19670 of 1999 KRISHNA KANT JHA, SON OF LATE BIDYANAND JHA, RESIDENT OF VILLAGE- BHOJPATTI, P.S. SARAI, DISTRICT- VAISHALI AT PRESENT POSTED AS AYURVED MEDICAL OFFICER, BAKHARI, P.S. RAM NAGAR, DISTRICT- WEST CHAMPARAN….. …………………………….. PETITIONER Versus 1. STATE OF BIHAR 2. SRI MANGAL PRASAD, SON OF LATE RAGHUNATH PRASAD, VILLAGE- CHAUTARIYA TOLA, P.O. BETTIAH, P.S. BAIRIYA, DISTRICT- WEST CHAMPARAN AT PRESENT POSTED AS HEAD CLERK, ZILA PARISHAD, WEST CHAMPARAN, BETTIAH………………………OPP. PARTIES. ----------- 9 29-04-2010 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel appearing for opposite party no.2, the complainant . 2. The short ground on which petitioner seeks quashing of order of cognizance dated 4-5-1999 passed by learned Judicial Magistrate, Ist. Class, Bettiah in complaint case no. 1302-C/1998, Tr.No. 904/99, is that the alleged defamation made by the petitioner in a writ petition are covered by the Eighth exception in Section 499 of the Indian Penal Code. On facts there is no dispute that petitioner alleged in a written petition that opposite party no.2 had demanded illegal gratification of Rs.6500/- for paying his retiral dues. Such allegation was made by the petitioner in a petition filed in this Cour for initiating contempt proceeding against opposite party no.2. That contempt petition never came to be finally decided because admittedly that was dismissed for non-prosecution. 3. The eighth exception to section 499 of the I.P.C. 2 provides that 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. 4. There is no difficulty in appreciating that eighth exception can be a valid defence against an accusation for defamation but the question is whether the issue of good faith can be decided as a pure question of law or it has to be decided on the basis of evidence and all the relevant issues as an issue of facts. In my considered opinion the question whether a defamatory statement made is in good faith or not is an issue of fact which may be taken as a defence but has to be decided on evidence. Finding on such an issue is difficult to be given only on the basis of allegations in the complaint petition which is main material besides the evidence of the complainant and his witnesses at the time of cognizance. In that view of the matter, it is not found possible to give any finding on the defence raised by the petitioner that the alleged defamatory statement is in good faith. This application is, therefore, dismissed. It goes without saying that if such a defence is raised by the petitioner at appropriate stage then the same shall be considered in accordance with law without being prejudiced by this order. Naresh ( Shiva Kirti Singh, J.)