rejecting the challenge to their prosecution for lack of sanction under Section 197 of the Code of Criminal Procedure, 1973 = 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.

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.”).

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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).”

  1. 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.
  2. 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’.
  3. 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….”
  4. 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.”
  5. 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.”
  6. 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
  7. 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.
  8. 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…”
  9. 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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  10. 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.
  11. 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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  12. The appeal is dismissed.
    ………………………………….J.
    (NAVIN SINHA)
    ……….………………………..J.
    (A.S. BOPANNA)
    New Delhi,
    August 19, 2019.
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