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

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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

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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

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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

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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,

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.”   

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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

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

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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

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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.

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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

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

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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.”

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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

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.

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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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