BIRENDRA NATH THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(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.