Patna High Court
Birendra Nath Thakur vs State Of Bihar And Ors. on 26 August, 1999
Equivalent citations: 1999(3)BLJR2148
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh
ORDER Shiva Kirti Singh, J.
1. In this application filed under Section 482 of Code of Criminal Procedure, the petitioner is an Assistant Settlement Officer in the Department of Revenue, Government of Bihar, who seeks quashing of the entire criminal proceeding against him in Complaint Case No. 509 (C) of 1998 pending before a Judicial Magistrate, 1st Class, at Patna and also of the order dated 23-7-1998 by which learned Judicial Magistrate has taken cognizance against the petitioner under Section 500 of the Indian Penal Code.
2. The complainant, opposite party No. 2, in this case is also an officer in the service of Government of Bihar, presently posted as Sub-Divisional Officer. The complaint filed by opposite party No. 2 discloses that at the relevant time he was Assistant Settlement Officer, Headquarters, Patna and the two accused-persons including this petitioner swore false affidavit on 10-12-1997 containing defamatory statements against the complainant and used the same for defaming and damaging the career of the complainant. A number of facts connected with the contents of those affidavits have been given out in the complaint petition to demonstrate that the affidavits contain falsehood. Further with regard to the accused No, 2, the petitioner, it has been alleged in the complaint petition that due to his transfer on 18-11-1997 the petitioner nursed grievance against the complainant and, therefore, he has sworn the aforesaid affidavit in league with the other accused and he has relied on statement of the other accused and reiterated the same in his affidavit fully well knowing that the same are false. The complainant has further alleged that the petitioner was in habit of writing false and offensive accusations in the file against senior officers and for violation of the official norms and conduct rules, he was given a written warning to improve his behaviour and language and thereafter, he started nursing a grievance against the complainant. Thus, in the complaint petition it has been alleged that the petitioner was acting with vengeance against the complainant in conspiring with the other accused and swearing false affidavit which he used in the department and the same has lowered the image of the complainant in the eyes of his colleagues and officers and has defamed him.
On behalf of the petitioner, learned Counsel raised several points for quashing of the complaint case against him. However, it was not disputed that the contents of the affidavits sworn by the petitioner does defame the complainant. The first point seriously canvassed on behalf of the petitioner was that since the petitioner is a Government servant and by virtue of that he has also opted to be an office-bearer of an employees, Union, hence, his action will be protected by provisions of Section 197 of Code of Criminal Procedure (hereinafter referred to as 'the Code'). In support of this plea some letters and documents annexed with this application have been referred to and the same show that the petitioner had sworn the affidavit in question purporting to act as President of the Union and it was the Union which communicated those affidavits to higher officials. On the basis of this fact, it has been submitted that only a Government servant could have been member of the said Union and hence, even while acting as office-bearer of the Union, the petitioner will continue to be a public servant and his impugned action will come within the protection of Section 197 of the Code because he must be deemed to be acting or purporting to act in the discharge of his official duty even while acting as an office-bearer of the Union.
3. In my view, the aforesaid contention cannot be accepted for a simple reason that a public servant may act in various different capacities and whenever he acts in a particular capacity which is not connected with his official duty, it cannot be said that he continues to act or purports to act in the discharge of his official duty. The argument that only a Government servant is eligible to be a member or office-bearer of the concerned Union, in my opinion, does not make the duty connected to the office of the Union as official duty. Joining of such Unions is optional and hence, it cannot be said that it was the part of petitioner's official duty to act as President of the Union so as to make his actions as an office bearer of the Union came with the term official duty. No law, rule or order has been brought to my notice to infer that it was obligatory on the part of the petitioner to act as office-bearer of the Union by virtue of his being a public servant. Hence, in my view, the aforesaid contention on behalf of the petitioner has no merit and cannot be accepted.
4. The next point urged on behalf of the petitioner was that he had initially made only verbal communication of the defamatory statements against the complainant to authorities and it was on being asked by them that he swore the affidavit in question which contains primarily what was communicated to him by the other accused. Hence, it has been submitted that the petitioner himself did not make the defamatory statements and that his actions were bona fide and covered by eighth exception to Section 499 of the Indian Penal Code. It was further submitted on behalf of the petitioner that as a result of allegations made against the complainant a prima facie inference was drawn against him leading to his transfer and hence, on the basis of judgment of Hon'ble Supreme Court , Rajendra Kumar Sita Ram Pande and Ors. v. Uttam and Anr., it should be held that no case of defamation was made out, and the proceeding should be quashed.
On behalf of the complainant, opposite parry No. 2, it was submitted that a perusal of entire complaint petition shows that there is clear allegation that the petitioner was having grudge against the complainant for different reasons and for those reasons he in conspiracy with the other accused chose to make false and defamatory statements against the complainant. In view of such allegations, the petitioner should not be permitted to urge at this stage that his action was bona fide and, therefore, protected by eighth exception to Section 499 of the Indian Penal Code.
On behalf of the complainant, it was further submitted on the basis of a Division Bench judgment of this Court reported in 1998(1) All P.L.R. 495, Ram Harsh Das v. the State of Bihar and Ors. containing reference to the judgment of Hon'ble Supreme Court in the case of State of Bihar v. P.P. Sharma reported in 1991 (2) PLJR 11, that Annexures with this application should not be accepted as evidence because they are not part of the case records before the Magistrate and this Court should not convert itself into a trial Court.
5. Having given a careful consideration to the aforesaid submissions of the parties. It has to be said that it is not one of those cases where the complaint for a defamation is directed against strangers or third parties without any specific allegation of ill motive. Here the complaint petition contains clear averments to allege lack of bona fides in the petitioner and hence, in the facts of the case, it cannot be held that the petitioner is protected by eighth exception to Section 499 of the Indian Penal Code. So far as his defence of having circulated only the views of other accused is concerned, the same is also difficult to be accepted at this stage in view of specific allegation of being in league and conspiracy with the other accused. Moreover, defamation as defined in Section 499 of the Indian Penal Code, includes riot only making of an imputation but also publishing the same and hence, the aforesaid ground also cannot be of any help to the petitioner.
6. In the facts of the present case, petitioner's reliance upon the judgment of the Apex Court in the case of Rajendra Kumar Sita Ram Pande (supra) is not of much help because in that case, as appears from paragraph 7 of the judgment, the Supreme Court noticed that upon a report made by the accused-persons to the superior officers a departmental enquiry had been initiated and the complainant was found to be guilty. In that case after going through the complaint petition, the Supreme Court further recorded its own satisfaction that no case of defamation had been made out. The facts of the present case was quite different. There is no material or even a whisper that any departmental inquiry was held in the matter against the complainant or that he was found guilty in such departmental inquiry.
7. Lastly, it was argued on behalf of the petitioner that under the Conduct Rules the complainant being a Government servant was required to obtain permission from the Government before instituting any criminal case. In reply to this submission, a counter-affidavit was filed on behalf of the complainant, opposite parry No. 2, wherein he annexed an order of Settlement Officer, Patna contained in Memo No. 708-1 dated 18-12-1997 to show that the complainant had been given promotion to permission to file case against the petitioner and some others. Copy of the aforesaid order of the Settlement Officer appears to have been sent to the Commissioner-cum-Secretary of the department and also to the complainant. The aforesaid argument, in my view, does not have much relevance or bearing so far as this application for quashing of the criminal case is concerned. So far as the Code is concerned, Section 199(4) of the Code provides that a complaint for defamation shall not be made by the public prosecutor except with the previous sanction of the State Government in case of any public public servant employed in connection with the affairs of the State but Sub-section (6) of Section 199 further provides that nothing in this section shall affect the right of the person against whom the offence is alleged to have been committed to make a complaint in respect of that offence before a Magistrate of competent jurisdiction. Even if it is presumed that the complainant has not obtained proper permission in terms of Conduct Rules applicable to his service, the effect of the same cannot invalidate and otherwise lawful prosecution brought about by such Government servant against his defamation.
8. For the aforesaid reasons, I find no merit in this application for quashing the complaint case at its threshold and, therefore, this application is dismissed.