NONREPORTABLE
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.
The appellants are aggrieved by the dismissal of
their writ application, rejecting the challenge to their
prosecution for lack of sanction under Section 197 of the Code
of Criminal Procedure, 1973 (hereinafter called as “Cr.P.C.”).
2. A criminal complaint case no.14/S/2003 was filed by
respondent no.1 before the Additional Chief Metropolitan
Magistrate under clauses 26(2)(3) and 39 read with clause 27
1
of the Private Security Guards (Regulation of Employment and
Welfare) Scheme, 1981 read with Section 3(3) of Maharashtra
Private Security Guards (Regulation of Employment and
Welfare) Act, 1981 (hereinafter called as “the Act”). The
complaint stated that the appellant – Corporation was
registered with the respondent Security Guards Board. The
Corporation was under obligation to engage security guards
registered with respondent no.1 only. An inspection revealed
engagement of unregistered guards. The Magistrate issued
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
07.09.2004. The matter was remanded for reconsideration,
which was again rejected by the Magistrate on 07.06.2005. The
writ petition preferred by the appellants against the issuance of
process was also rejected on 22.12.2006. The fresh revision
against order dated 07.06.2005 assailed the prosecution on
grounds of being barred by limitation, that the Act was not
applicable to the appellants’ establishment, and that the
2
issuance of process was bad in absence of sanction under
Section 197, Cr.P.C., appellants nos.2 to 4 being ‘public
servants’. The revision application was again dismissed on
05.09.2007 leading to the impugned order assailed in the
present appeal. In the writ petition, the appellants gave up
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
of sanction under Section 197, Cr.P.C. was not available to
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
fell within the definition of ‘public servant’ as they were
discharging public duty in pursuance of the policy of the
Central Government. Appellants nos.2 to 4, belonged to the
3
Central Civil Service – ClassI, having been appointed by
Hon’ble the President of India to the Indian Telecommunication
Service, were removable by orders of the President only. The
fact that they may have been sent on deputation to the
appellant Corporation is inconsequential mandating sanction
under Section 197, Cr.P.C. before their prosecution. The High
Court erred in distinguishing Dr. Lakshmansingh
Himatsingh Vaghela vs. Naresh Kumar Chandrashanker
Jah and another, (1990) 4 SCC 169, considering that the
appellants nos.2 to 4 were removable by orders of the President
of India only.
5. Learned counsel for the respondents acknowledged the
original appointment of appellants nos.2 to 4 in Central Civil
Services Class1. It was however submitted that the appellant
Corporation was established on 01.10.2000. The appellants
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
4
to be government employees in the Central Civil Services Class1. 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,
Cr.P.C. available to employees of public sector corporation
claiming the status of a ‘public servant’. The relevant extract of
Section 197, Cr.P.C., reads as follows:
“197. Prosecution of Judges and public
servants.
(1) When any person who is or was a Judge or
Magistrate or a public servant not removable
from his office save by or with the sanction of
the Government is accused of any offence
alleged to have been committed by him while
acting or purporting to act in the discharge of
his official duty, no Court shall take cognizance
of such offence except with the previous
sanction
(a) in the case of a person who is employed or,
as the case may be, was at the time of
commission of the alleged offence employed, in
connection with the affairs of the Union, of the
Central Government;
(b) in the case of a person who is employed or,
as the case may be, was at the time of
commission of the alleged offence employed, in
connection with the affairs of a State, of the
State Government.”
5
The term ‘public servant’ has been defined in Section 21
of the Indian Penal Code, the relevant portion for the present
case reads as follows:
“21. “Public servant”.—The words “public
servant” denote a person falling under any of
the descriptions hereinafter following; namely:
—
xxxxxxx
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
ground of being a ‘public servant’ is not available to appellants
nos.3 and 4 on account of their ceasing to be employees of the
Indian Telecommunication Service after their absorption in the
appellant Corporation on 01.10.2000, prior to the complaint. The
fact that their past service may count for purposes of pension in
6
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
appellant Corporation. We are therefore required to consider if
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
res integra and stands authoritatively settled that employees of
public sector corporations are not entitled to the protection under
Section 197 Cr.P.C. as ‘public servant’.
9. In Mohd. Hadi Raja (supra), the court was considering the
need for sanction for prosecuting officers of public sector
undertakings or government companies falling within the definition
of ‘State’ under Article 12 of the Constitution and who were
removable from office save by sanction of the Government. Holding
7
that protection under Section 197, Cr.P.C. was not available to
such persons, it was held as follows:
“27. Therefore, in our considered opinion, the
protection by way of sanction under Section 197
of the Code of Criminal Procedure is not
applicable to the officers of government
companies or the public undertakings even when
such public undertakings are “State” within the
meaning of Article 12 of the Constitution on
account of deep and pervasive control of the
Government….”
10. In N.K. Sharma vs. Abhimanyu, (2005) 13 SCC 213,
rejecting the challenge for requirement of sanction under Section
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
an Indian Administrative Service serving on deputation as
AdministratorcumManaging Director of Bihar State Housing
8
Cooperative Federation Ltd. Elucidating the requirements to be
fulfilled for the applicability of the protection under Section 197,
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.
9
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
in providing the protection under Section 197, Cr.P.C. to an
employee of the appellant Corporation which was fully government
owned and financed by the State Government, and therefore,
respondent fell within the definition of a ‘public servant’. Setting
aside the orders of the High Court, this Court observed as follows:
“23. In Mohd. Hadi Raja v. State of Bihar the
question arose whether Section 197 CrPC was
applicable for prosecuting officers of the public
sector undertakings or the government companies
which can be treated as State within the meaning of
Article 12 of the Constitution of India. The Court
referred to Section 197 CrPC, noted the
submissions and eventually held that the
protection by way of sanction under Section 197
CrPC is not applicable to the officers of government
companies or the public undertakings even when
such public undertakings are “State” within the
meaning of Article 12 of the Constitution on
account of deep and pervasive control of the
Government.
24. The High Court has not accepted the
submission of the Corporation in this regard. We
are constrained to note that the decision in Mohd.
Hadi Raja has been referred to in the grounds in
this appeal. There is nothing on record to suggest
10
that the said decision was cited before the High
Court…”
14. Dr. Lakshmansingh Himatsingh Vaghela (supra), on which
the appellants have placed reliance, is completely distinguishable
on its own facts. The appellant was employed in the Municipal
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.”
11
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
absorption in the Corporation. With regard to appellant no.2,
considering his status as on deputation to the appellant
Corporation at the relevant point of time and in absence of
necessary evidence with regard to his status in the appellant
Corporation throughout the litigation being ambiguous, we leave
that question open for consideration in the trial after necessary
evidence is available.
16. The trial has turned out to be stillborn since 2003, with the
appellants filing one application after another. We are of the
considered opinion that the trial needs to be expedited and
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.
12
17. The appeal is dismissed.
………………………………….J.
(NAVIN SINHA)
……….………………………..J.
(A.S. BOPANNA)
New Delhi,
August 19, 2019.
13
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.
The appellants are aggrieved by the dismissal of
their writ application, rejecting the challenge to their
prosecution for lack of sanction under Section 197 of the Code
of Criminal Procedure, 1973 (hereinafter called as “Cr.P.C.”).
2. A criminal complaint case no.14/S/2003 was filed by
respondent no.1 before the Additional Chief Metropolitan
Magistrate under clauses 26(2)(3) and 39 read with clause 27
1
of the Private Security Guards (Regulation of Employment and
Welfare) Scheme, 1981 read with Section 3(3) of Maharashtra
Private Security Guards (Regulation of Employment and
Welfare) Act, 1981 (hereinafter called as “the Act”). The
complaint stated that the appellant – Corporation was
registered with the respondent Security Guards Board. The
Corporation was under obligation to engage security guards
registered with respondent no.1 only. An inspection revealed
engagement of unregistered guards. The Magistrate issued
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
07.09.2004. The matter was remanded for reconsideration,
which was again rejected by the Magistrate on 07.06.2005. The
writ petition preferred by the appellants against the issuance of
process was also rejected on 22.12.2006. The fresh revision
against order dated 07.06.2005 assailed the prosecution on
grounds of being barred by limitation, that the Act was not
applicable to the appellants’ establishment, and that the
2
issuance of process was bad in absence of sanction under
Section 197, Cr.P.C., appellants nos.2 to 4 being ‘public
servants’. The revision application was again dismissed on
05.09.2007 leading to the impugned order assailed in the
present appeal. In the writ petition, the appellants gave up
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
of sanction under Section 197, Cr.P.C. was not available to
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
fell within the definition of ‘public servant’ as they were
discharging public duty in pursuance of the policy of the
Central Government. Appellants nos.2 to 4, belonged to the
3
Central Civil Service – ClassI, having been appointed by
Hon’ble the President of India to the Indian Telecommunication
Service, were removable by orders of the President only. The
fact that they may have been sent on deputation to the
appellant Corporation is inconsequential mandating sanction
under Section 197, Cr.P.C. before their prosecution. The High
Court erred in distinguishing Dr. Lakshmansingh
Himatsingh Vaghela vs. Naresh Kumar Chandrashanker
Jah and another, (1990) 4 SCC 169, considering that the
appellants nos.2 to 4 were removable by orders of the President
of India only.
5. Learned counsel for the respondents acknowledged the
original appointment of appellants nos.2 to 4 in Central Civil
Services Class1. It was however submitted that the appellant
Corporation was established on 01.10.2000. The appellants
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
4
to be government employees in the Central Civil Services Class1. 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,
Cr.P.C. available to employees of public sector corporation
claiming the status of a ‘public servant’. The relevant extract of
Section 197, Cr.P.C., reads as follows:
“197. Prosecution of Judges and public
servants.
(1) When any person who is or was a Judge or
Magistrate or a public servant not removable
from his office save by or with the sanction of
the Government is accused of any offence
alleged to have been committed by him while
acting or purporting to act in the discharge of
his official duty, no Court shall take cognizance
of such offence except with the previous
sanction
(a) in the case of a person who is employed or,
as the case may be, was at the time of
commission of the alleged offence employed, in
connection with the affairs of the Union, of the
Central Government;
(b) in the case of a person who is employed or,
as the case may be, was at the time of
commission of the alleged offence employed, in
connection with the affairs of a State, of the
State Government.”
5
The term ‘public servant’ has been defined in Section 21
of the Indian Penal Code, the relevant portion for the present
case reads as follows:
“21. “Public servant”.—The words “public
servant” denote a person falling under any of
the descriptions hereinafter following; namely:
—
xxxxxxx
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
ground of being a ‘public servant’ is not available to appellants
nos.3 and 4 on account of their ceasing to be employees of the
Indian Telecommunication Service after their absorption in the
appellant Corporation on 01.10.2000, prior to the complaint. The
fact that their past service may count for purposes of pension in
6
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
appellant Corporation. We are therefore required to consider if
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
res integra and stands authoritatively settled that employees of
public sector corporations are not entitled to the protection under
Section 197 Cr.P.C. as ‘public servant’.
9. In Mohd. Hadi Raja (supra), the court was considering the
need for sanction for prosecuting officers of public sector
undertakings or government companies falling within the definition
of ‘State’ under Article 12 of the Constitution and who were
removable from office save by sanction of the Government. Holding
7
that protection under Section 197, Cr.P.C. was not available to
such persons, it was held as follows:
“27. Therefore, in our considered opinion, the
protection by way of sanction under Section 197
of the Code of Criminal Procedure is not
applicable to the officers of government
companies or the public undertakings even when
such public undertakings are “State” within the
meaning of Article 12 of the Constitution on
account of deep and pervasive control of the
Government….”
10. In N.K. Sharma vs. Abhimanyu, (2005) 13 SCC 213,
rejecting the challenge for requirement of sanction under Section
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
an Indian Administrative Service serving on deputation as
AdministratorcumManaging Director of Bihar State Housing
8
Cooperative Federation Ltd. Elucidating the requirements to be
fulfilled for the applicability of the protection under Section 197,
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.
9
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
in providing the protection under Section 197, Cr.P.C. to an
employee of the appellant Corporation which was fully government
owned and financed by the State Government, and therefore,
respondent fell within the definition of a ‘public servant’. Setting
aside the orders of the High Court, this Court observed as follows:
“23. In Mohd. Hadi Raja v. State of Bihar the
question arose whether Section 197 CrPC was
applicable for prosecuting officers of the public
sector undertakings or the government companies
which can be treated as State within the meaning of
Article 12 of the Constitution of India. The Court
referred to Section 197 CrPC, noted the
submissions and eventually held that the
protection by way of sanction under Section 197
CrPC is not applicable to the officers of government
companies or the public undertakings even when
such public undertakings are “State” within the
meaning of Article 12 of the Constitution on
account of deep and pervasive control of the
Government.
24. The High Court has not accepted the
submission of the Corporation in this regard. We
are constrained to note that the decision in Mohd.
Hadi Raja has been referred to in the grounds in
this appeal. There is nothing on record to suggest
10
that the said decision was cited before the High
Court…”
14. Dr. Lakshmansingh Himatsingh Vaghela (supra), on which
the appellants have placed reliance, is completely distinguishable
on its own facts. The appellant was employed in the Municipal
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.”
11
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
absorption in the Corporation. With regard to appellant no.2,
considering his status as on deputation to the appellant
Corporation at the relevant point of time and in absence of
necessary evidence with regard to his status in the appellant
Corporation throughout the litigation being ambiguous, we leave
that question open for consideration in the trial after necessary
evidence is available.
16. The trial has turned out to be stillborn since 2003, with the
appellants filing one application after another. We are of the
considered opinion that the trial needs to be expedited and
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.
12
17. The appeal is dismissed.
………………………………….J.
(NAVIN SINHA)
……….………………………..J.
(A.S. BOPANNA)
New Delhi,
August 19, 2019.
13
