364 2009 12 1501 16072 Judgement 19-Aug-2019 PDF
364 2009 12 1501 16072 Judgement 19-Aug-2019 PDF
364 2009 12 1501 16072 Judgement 19-Aug-2019 PDF
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 503 OF 2010
BHARAT SANCHAR NIGAM LIMITED
AND OTHERS ..........APPELLANT(S)
VERSUS
PRAMOD V. SAWANT
AND ANOTHER ......RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
prosecution for lack of sanction under Section 197 of the Code
of Criminal Procedure, 1973 (hereinafter called as “Cr.P.C.”).
Digitally signed by
SANJAY KUMAR
respondent no.1 before the Additional Chief Metropolitan
Date: 2019.08.19
14:27:04 IST
Reason:
Magistrate under clauses 26(2)(3) and 39 read with clause 27
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of the Private Security Guards (Regulation of Employment and
Welfare) Scheme, 1981 read with Section 3(3) of Maharashtra
registered with the respondent Security Guards Board. The
registered with respondent no.1 only. An inspection revealed
process against the appellants in 2003. The appellants prayed
for recall of the process, which was rejected on 06.04.2004. A
criminal revision preferred against the rejection was allowed on
which was again rejected by the Magistrate on 07.06.2005. The
writ petition preferred by the appellants against the issuance of
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issuance of process was bad in absence of sanction under
their challenge on grounds of limitation and inapplicability of
the Act which has therefore attained finality. The challenge in
the writ petition is confined to the question of sanction only.
3. The High Court relying on Mohd. Hadi Raja vs. State of
Bihar and another, (1998) 5 SCC 91, held that the protection
officers of Government companies or public undertakings even
if it fell within the definition of ‘State’ under Article 12 of the
Constitution.
4. Shri R.D. Agarwal, learned senior counsel appearing on
behalf of the appellants, submitted that appellants nos.2 to 4
Central Government. Appellants nos.2 to 4, belonged to the
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Central Civil Service – ClassI, having been appointed by
Hon’ble the President of India to the Indian Telecommunication
under Section 197, Cr.P.C. before their prosecution. The High
appellants nos.2 to 4 were removable by orders of the President
of India only.
original appointment of appellants nos.2 to 4 in Central Civil
Services Class1. It was however submitted that the appellant
nos.2 to 4 were sent on deputation initially. Option was given
for absorption in the appellant Corporation. Appellants nos.3
and 4 opted for absorption and thus became employees of the
appellant Corporation with effect from 01.10.2000 and ceased
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to be government employees in the Central Civil Services Class
1. Appellant no.2 appears to have retired from the appellant
Corporation while on deputation, but his status is not clear.
6. The appeal raises a short and pure question of law for
consideration with regard to the protection under Section 197,
claiming the status of a ‘public servant’. The relevant extract of
Section 197, Cr.P.C., reads as follows:
of the Indian Penal Code, the relevant portion for the present
case reads as follows:
Twelfth —Every person—
(a) in the service or pay of the Government or
remunerated by fees or commission for the
performance of any public duty by the
Government;
(b) in the service or pay of a local authority, a
corporation established by or under a Central,
Provincial or State Act or a Government
company as defined in section 617 of the
Companies Act, 1956 (1 of 1956).”
7. At the very outset, we are of the opinion that the question for
grant of sanction for prosecution under Section 197, Cr.P.C. on the
appellant Corporation on 01.10.2000, prior to the complaint. The
fact that their past service may count for purposes of pension in
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case of removal or dismissal by the Corporation or that
administrative approval of the concerned ministry may be formally
required before any punitive action will not confer on them the
status of ‘public servant’ under the Cr.P.C.
8. The necessary facts with regard to status of appellant no.2 are
not very clear from the pleadings. It appears that at the relevant
point of time before superannuation he was on deputation to the
Corporation. The allegations related to discharge of his duties in the
sanction under Section 197, Cr.P.C. was a prerequisite with regard
to him in a status as a ‘public servant’. The question is no more
public sector corporations are not entitled to the protection under
Section 197 Cr.P.C. as ‘public servant’.
undertakings or government companies falling within the definition
removable from office save by sanction of the Government. Holding
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that protection under Section 197, Cr.P.C. was not available to
such persons, it was held as follows:
197, Cr.P.C., it was observed as follows:
“13. Admittedly the salary of the appellant is not
paid by the Government. He at the relevant time
was not in the service of the State. Prosecution
against an officer of a government company or a
public undertaking would not require any
sanction under Section 197 CrPC.”
11. The question again fell for consideration in Chandan Kumar
Basu vs. State of Bihar, (2014) 13 SCC 70, involving an officer of
Cr.P.C., it was observed as follows:
“8. A reading of the provisions of Section 197(1) of
the Code reveals that there are three mandatory
requirements under Section 197(1) of the Code,
namely:
(a) that the accused is a public servant;
(b) that the public servant can be removed from
the post by or with the sanction either of the
Central or the State Government, as the case
may be;
(c) the act(s) giving rise to the alleged offence had
been committed by the public servant in the
actual or purported discharge of his official
duties.”
12. We are of the opinion that sufficient evidence is not available
on record at this stage with regard to the status of appellant no.2 in
all aspects for us to unhesitatingly hold that the protection under
Section 197 Cr.P.C shall be available to him. These are matters to
be considered by the Magistrate on basis of the evidence that may
be placed before him during the course of trial.
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13. Mohd. Hadi Raja (supra) has been noticed more recently in
Punjab State Warehousing Corporation vs. Bhushan Chander
and another, (2016) 13 SCC 44, holding that the High Court erred
employee of the appellant Corporation which was fully government
respondent fell within the definition of a ‘public servant’. Setting
aside the orders of the High Court, this Court observed as follows:
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that the said decision was cited before the High
Court…”
14. Dr. Lakshmansingh Himatsingh Vaghela (supra), on which
Corporation as a Laboratory Officer. He was only entrusted with
discharge of duties as a public analyst. His remuneration was not
paid by the Government, but by the Corporation. The observations
in Paragraph 5 have to be understood in that context:
“5. Section 197, CrPC clearly intends to draw a
line between public servants and to provide that
only in the case of the higher ranks should the
sanction of the government to their prosecution
be necessary. While a public servant holding an
office of the kind mentioned in the section is as
such public servant appointed to another office,
his official acts in connection with the latter
office will also relate to the former office. The
words “removable from office” occurring in
Section 197 signify removal from the office he is
holding. The authority mentioned in the section
is the authority under which the officer is serving
and competent to terminate his services. If the
accused is under the service and pay of the local
authority, the appointment to an office for
exercising functions under a particular statute
will not alter his status as an employee of the
local authority.”
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15. It is therefore, held that the question of sanction under
Section 197, Cr.P.C. with regard to appellants nos.3 and 4 treating
them to be ‘public servant’ simply does not arise because of their
evidence is available.
16. The trial has turned out to be stillborn since 2003, with the
concluded at an early date. It is ordered accordingly. The Magistrate
shall endeavour to conclude the trial within a period of one year.
The parties are directed to cooperate for its early disposal.
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17. The appeal is dismissed.
………………………………….J.
(NAVIN SINHA)
……….………………………..J.
(A.S. BOPANNA)
New Delhi,
August 19, 2019.
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