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1999 Supreme(Pat) 814
PATNA HIGH COURT
Shiva Kirti Singh, J.
Birendra Nath Thakur
Versus
State Of Bihar
Criminal Miscellaneous No. 26801 of 1998 ;
Decided On : AUGUST 26, 1999
A public servant's actions as an office-bearer of a union are not protected by Section 197 of the Code of Criminal Procedure unless those actions are connected with the public servant's official duty.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 197 - PUBLIC SERVANT - UNION OFFICE-BEARER - DEFAMATION - SECTION 499 - EIGHTH EXCEPTION - BONA FIDE - SECTION 199(4) AND (6) - SANCTION FOR PROSECUTION - GOVERNMENT SERVANT - COMPLAINT BY VICTIM - VALIDITY - CONDUCT RULES - PERMISSION TO FILE CASE - RELEVANCE IN QUASHING APPLICATION.
Fact of the Case:
The petitioner, an Assistant Settlement Officer, sought to quash a criminal complaint against him for defamation under Section 500 of the Indian Penal Code. The complaint alleged that the petitioner, along with another accused, swore false affidavits containing defamatory statements against the complainant, a Sub-Divisional Officer. The petitioner claimed protection under Section 197 of the Code of Criminal Procedure, arguing that his actions were taken in the discharge of his official duty as an office-bearer of an employees' union. He also claimed that he had only communicated the defamatory statements made by the other accused and that his actions were bona fide and covered by the eighth exception to Section 499 of the Indian Penal Code.
Finding of the Court:
The court held that the petitioner's actions as an office-bearer of the union were not connected with his official duty as a public servant and, therefore, he was not protected by Section 197 of the Code of Criminal Procedure. The court also rejected the petitioner's claim that he was protected by the eighth exception to Section 499 of the Indian Penal Code, finding that there were clear allegations of lack of bona fides and conspiracy against him. The court further held that the complainant, being a government servant, was not required to obtain permission from the government before instituting the criminal case, as provided under Section 199(4) of the Code of Criminal Procedure, since Section 199(6) allows the victim of the offense to make a complaint without such permission.
Issues: 1. Whether the petitioner's actions as an office-bearer of the union were protected by Section 197 of the Code of Criminal Procedure? 2. Whether the petitioner's actions were bona fide and covered by the eighth exception to Section 499 of the Indian Penal Code? 3. Whether the complainant was required to obtain permission from the government before instituting the criminal case?
Ratio Decidendi: 1. The court held that the petitioner's actions as an office-bearer of the union were not connected with his official duty as a public servant and, therefore, he was not protected by Section 197 of the Code of Criminal Procedure. The court reasoned that joining a union is optional and that the petitioner's duty as an office-bearer of the union did not make his actions part of his official duty. 2. The court rejected the petitioner's claim that he was protected by the eighth exception to Section 499 of the Indian Penal Code, finding that there were clear allegations of lack of bona fides and conspiracy against him. The court held that the petitioner's actions were not bona fide and that he was not merely communicating the views of the other accused. 3. The court held that the complainant, being a government servant, was not required to obtain permission from the government before instituting the criminal case, as provided under Section 199(4) of the Code of Criminal Procedure, since Section 199(6) allows the victim of the offense to make a complaint without such permission.
Final Decision: The court dismissed the petitioner's application to quash the criminal complaint against him.
Shiva Kirti Singh, J.
1. In this application filed under Sec. 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 Sec. 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 Sec. 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 Sec. 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
