N.K. Sharma Vs. Abhimanyu
[2005] Insc 565 (7 October 2005)
S.B. Sinha & R.V.
Raveendran S.B. Sinha, J :
Whether a Class I Officer of the State Government (Haryana) deputed to work
as Managing Director of a Co-operative Society is entitled to protection under
Section 197 of the Code of Criminal Procedure is in question in this appeal
which arises out of a judgment and order dated 14.7.2000 passed by the High
Court Punjab and Haryana at Chandigarh.
The fact of the matter, shorn of all unnecessary details is as under :
The Respondent herein was working as Land Valuation Officer under one Dalip
Singh, Manager, Primary Agricultural Land Development Bank, Dabwali, a branch
office of the Cooperative Society wherein the Appellant was the Managing
Director.
A Veterinary Doctor V.K. Mittal was arrested by the Vigilance Bureau on or
about 29.3.1995, allegedly while accepting illegal gratification of Rs.700/-
from a farmer. The said doctor made an allegation that out of the said amount
of Rs. 700/-, a sum of Rs.400/- was to be paid to the Manager. Dalip Singh, on
the basis of the said statement, was arrested. He was later on, however,
acquitted.
The District Manager, Sirsa, in charge of the Circle, by a letter dated
12.4.1995 brought to the Appellant's notice that a relative of the Respondent,
working as Inspector in Vigilance at the instance of the Respondent, got the
said Manager arrested as he had been nursing a grudge against him having been
transferred from Dabawali on his recommendation.
Upon receipt of the said letter, the Appellant addressed a letter dated
19.4.1995 to the Director General of Police, Vigilance Department, Haryana,
Chandigarh, requesting him to look into the matter personally. The letter
contained a statement "Later on with the connivance of Shri Abhimanyu,
Land Valuation Officer and his one relative who is in Haryana Police, has
falsely implicated Shri Dilip Singh.The Manager has been implicated due to
personal difference with Shri Abhimanyu" The said letter was published in
a newspaper, whereafter the Respondent filed a complaint against the Appellant
herein in the Court of the Chief Judicial Magistrate, Sirsa, purported to be
for commission of an offence under Section 500 of the Indian Penal Code (for
short, IPC), on the ground that by reason thereof his prestige got lowered in
the general public as also amongst his relatives.
The Appellant was summoned in the said case by the Chief Judicial Magistrate
by an order dated 13.7.1998.
The Appellant herein filed an application before the said Court on 30.4.1999
on the ground that no sanction in terms of Section 197 Cr. PC having been
obtained, the entire proceeding was vitiated in law as, according to him, the
aforementioned DO letter was issued by him in his official capacity. It was
further contended that the said letter has been procured by some persons
wherewith the Appellant has no concern.
The said application, however, was dismissed by the Chief Judicial
Magistrate by an order dated 14.8.1999. Aggrieved thereby the Appellant filed
an application under Section 482 of the Code of Criminal Procedure praying
therein for quashing the order dated 13.7.1998 whereby he had been summoned. By
reason of the impugned order, the said application was dismissed holding that
as the Appellant was working on deputation in the Cooperative Housing
Federation at the relevant time, he was not entitled to get the protection
under Section 197 Cr.PC. Being aggrieved, the Appellant is before us.
Mr. Vijay Kumar, the learned counsel appearing on behalf of the Appellant,
would submit that the Appellant being a Class-I Officer of the State Government
was entitled to the said protection in terms of the provisions of the Haryana
Civil Services (Punishment or Appeal) Rules, 1987 as also the Haryana
Cooperative Societies Act, 1984.
Sanction for prosecution of a public servant, the learned counsel would
contend, is a valuable right. It was submitted that the High Court committed a
manifest error in dismissing the Appellant's application under Section 482
Cr.PC. relying on or on the basis of a decision of this Court in Mohd. Hadi
Raja vs. State of Bihar and Another [(1998) 5 SCC 91] without taking into
consideration paragraph 25 thereof wherein it is laid down that such protection
can be afforded by any statute or statutory rules framed by the State.
Mr. Mahabir Singh, the learned counsel appearing on behalf of the
Respondent, on the other hand, would contend that in absence of any statutory
provision, the question as to whether an officer deputed to work in a
cooperative society is a 'public servant' or not must be determined strictly in
terms of Section 21 of IPC.
It was submitted that the provisions of the Haryana Civil Services
(Punishment or Appeal) Rules, 1987, referred to above, are wholly inapplicable
inasmuch as the definition of 'public servant' contained therein is meant to be
applied for the purpose of the said rules only.
As regards the availability of protection under Section 123 of the Haryana
Cooperative Societies Act, 1984, the learned counsel for the Respondent would
contend that only those employees who come within the purview of Section 123
thereof would be 'public servant' and not others and the Appellant herein does
not answer the description of the employees specified therein.
Indisputably the underlying object in enacting Section 197 of the Cr.PC is
to protect a public servant from a frivolous prosecution. The said provision,
however, although may not be construed too narrowly, as was held in
Shreekantiah Ramayya Munipalli vs. State of Bombay [1955 (1) SCR 1177],
whereupon the learned counsel for the Appellant placed reliance, cannot be
interpreted liberally so as to bring within its purview other officers who are
not so protected. Section 197 of the Code of Criminal Procedure, inter alia,
protects the public servants. 'Public Servant' has been defined in Section 21
of the IPC, clause 12 whereof is as under :
"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)" 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 the Government company or a public undertaking would not
require any sanction under Section 197 Cr. PC .
It has not been denied or disputed before us that the Appellant herein does
not answer the description of a public servant within the meaning of the
provision of Section 21 of IPC. What is contended is that he continues to be a
public servant within the meaning of the Haryana Civil Services (Punishment or
Appeal) Rules, 1987, Rule 2(D) whereof is as under :
"2(D) government employees : means any person appointed to any civil
service or post in connection with the affairs of the State of Haryana
Explanation :A govt. employee whose services are placed at the disposal of a
company, corporation or organization or a local authority or university by the
Govt. shall for the purpose of these rules be deemed to be a government
employee serving under the government notwithstanding that his salary is drawn
from sources other than the consolidated fund of the State." The said rule
had been made in terms of proviso appended to Article 309 of the Constitution
of India. An employee of the State, whose services have been placed at the
disposal of a company, corporation or organization or a local authority or
university would be deemed to a Government employee despite the fact that his
salary has been drawn from sources other than the consolidated fund of the
State, for the purpose of the said rules.
The definition of the 'Government employee' cannot be extended for purposes
other than sought to be achieved thereby. Provisions of the said rules,
therefore, cannot be invoked for affording protection under Section 197 of the
Code of Criminal Procedure.
Reliance has also been placed upon Sections 118 and 123 of the Haryana
Cooperative Societies Act, 1984, which read as under :
"S. 118. Cognizance of offence i) No court inferior to that of Judicial
Magistrate of the First Class shall try any offence under this Act .
ii) No prosecution shall be instituted without the sanction of the Registrar
and such sanction shall not be given without giving to the person concerned a
reasonable opportunity to represent his case.
S. 123.. Employees etc. to be public servants : - Any employee of
cooperative society engaged in the recovery of loans under the provisions of
this Act or rules or any person appointed as liquidator or arbitrator shall be
deemed to be a public servant within the meaning of Section 21 of the Indian
Penal Code." [Emphasis supplied] Section 117 of the said Act enumerates
offences. Section 118 limits taking of cognizance of offences which come within
the purview of the said Act, as would be evident from clause (i) thereof, and not
under the provisions of the Indian Penal Code or any other statute. The said
provision, therefore, has no application. In terms of Section 123, only an
employee who is engaged in the recovery of loans or a person who has been
appointed as a liquidator or an arbitrator only shall be treated as a public
servant. By reason of the said provision, a legal fiction has been created. A
legal fiction, as is well known, is created for a specific purpose and, thus,
applicability thereof cannot be extended for a purpose other than those for
which it has been created. As the Managing Director of the Haryana State
Cooperative Land Development Bank Ltd., the Appellant was not engaged in the
recovery of loans or appointed as a liquidator or an arbitrator and in that
view of the matter, the limited purpose for which the legal fiction has been
created would have no application in the instant case.
The views we have taken find support from a decision of this Court in S.S.
Dhanoa vs,. Municipal Corporation, Delhi and Others [(1981) 3 SCC 431] wherein,
this Court noticed a well marked distinction between a body created by a
statute and a body coming into existence and governed in accordance with the
provisions of a statute. In that case the Appellant therein, was a member of
the Indian Administrative Service. His services were placed at the disposal of
Cooperative Stores Ltd., a society registered under the Bombay Cooperative
Societies Act. He was prosecuted under Section 7 of the Prevention of
Food Adulteration Act, 1954. Rejecting a contention that he was entitled to
protection under Section 197 of Cr. PC, it was observed :
"5. The short question that falls for our determination in this appeal
is whether a member of the Indian Administrative Service, whose services are
placed at the disposal of an organisation which is neither a local authority,
nor a corporation established by or under a Central, Provincial or State Act,
nor a Government Company, by the Central Government or the Government of a
State, can be treated to be a 'public servant' within the meaning of clause
Twelfth of Section 21 of the Indian Penal Code for purposes of Section 197 of
the Code of Criminal Procedure, 1973. The answer to the question turns on the
construction of clause Twelfth of Section 21 of the Indian Penal Code,
1860 and Section 197 of the Code of Criminal Procedure, 1973" It was
opined :
"By no stretch of imagination, could it be said that the appellant was
employed in connection with the affairs of the Union within the meaning of
Section 197 of the Code of Criminal Procedure, 1973. The Super Bazaars are not
owned by the Central Government. They are owned and managed by the Cooperative
Store Limited. Pursuant to an agreement executed between the Cooperative Store
Limited and the Union of India, the Central Government has advanced a loan of
Rs 40,00,000 to the Society for establishment and management of the Super Bazaars,
and the Central Government also holds more than 97 per cent shares in the total
shareholding of the Society. Clause 6 of the Agreement provides:
"That the incumbents of supervisory and other key posts including those
of General Manager, Deputy General Manager, Finance Manager, Assistant General
Manager, Purchase Manager, Sales Manager and Accounts Manager, by whatever
other designation they may be known shall not be appointed or removed from
their posts by the debtor except with the prior approval of the creditor in
writing." The Super Bazaar at Connaught Place and at various other places
are run by the Cooperative Store Limited under the control of the Ministry of
Agriculture (Department of Cooperation). The incumbents of supervisory and other
key posts including that of the General Manager cannot be appointed or removed
without the prior approval of the Central Government.
The whole purpose of clause 6 of the Agreement in the matter of appointment
of General Manager and other incumbents holding key posts is to safeguard the
interests of the Central Government. Legally speaking, the Super Bazaars are
owned and managed by the Society and not by the Central Government and,
therefore, the appellant was not employed in connection with the affairs of the
Union within the meaning of Section 197 of the Code of Criminal Procedure,
1973." We may, however, notice that therein a distinction between a
company engaged under the Act and the Company which comes into existence in
accordance with the Act was noticed relying on or on the basis of a decision of
this Court in Sukhdev Singh vs. Bhagatram Sardar Singh Raghuvanshi [(1975) 1
SCC 421]. The Court therein also relied upon Sabhajit Tewary vs. Union of India
[(1975) 1 SCC 485]. The said decision, however, has been reversed by a Seven
Judge Bench of this Court in Pradeep Kumar Biswas & Ors. vs. Indian
Institute of Chemical Biology & Ors. [JT 2002 (4) SC 146]. In this case, we
are not, however, concerned with the said issue.
The said decision has been followed in Mohd. Hadi Raja (supra) whereupon
reliance has been placed by the High Court, observing :
"21. It is to be noted that though through the contrivance or mechanism
of corporate structure, some of the public undertakings are performing the
functions which are intended to be performed by the State, ex facie, such
instrumentality or agency being a juridical person has an independent status
and the action taken by them, however important the same may be in the interest
of the State cannot be held to be an action taken by or on behalf of the
Government as such within the meaning of Section 197 CrPC." It was further
observed :
"23. The importance of the public undertaking should not be minimised.
The Government's concern for the smooth functioning of such instrumentality or
agency can be well appreciated but on the plain language of Section 197 of the
Code of Criminal Procedure, the protection by way of sanction is not available
to the officers of the public undertaking because being a juridical person and
a distinct legal entity, such instrumentality stands on a different footing
than the government departments.
xxx xxx xxx xxx
25. It will be appropriate to notice that whenever there was a felt need to
include other functionaries within the definition of "public servant",
they have been declared to be "public servants" under several special
and local acts.
If the legislature had intended to include officers of an instrumentality or
agency for bringing such officers under the protective umbrella of Section 197
CrPC, it would have done so expressly." We have noticed hereinbefore that
the petition does not come within the purview of Section 123 of the Act.
At this juncture, we may notice that in B.S. Sambhu vs. T.S.
Krishnaswamy [(1983) 1 SCC 11], this Court emphasized there must be a
reasonable connection between the act and the discharge of official duty by the
accused.
The learned counsel for the Appellant submitted that the allegations made by
the Respondent herein even if given face value and taken to be correct in its
entirety would not attract the mischief of Section 499 of IPC in view of
several exceptions carved out therein. From the judgment of the High Court it
does not appear that such a question was raised therein.
We have noticed hereinbefore that the Appellant filed an application
purported to be under Section 203 of the Cr. PC before the Chief Judicial
Magistrate. Such an application was not maintainable in view of the decision of
this Court in Adalat Prasad vs. Rooplal Jindal and Others [(2004) 7 SCC 338],
wherein it has been held :
"15. It is true that if a Magistrate takes cognizance of an offence,
issues process without there being any allegation against the accused or any
material implicating the accused or in contravention of provisions of Sections
200 and 202, the order of the Magistrate may be vitiated, but then the relief
an aggrieved accused can obtain at that stage is not by invoking Section 203 of
the Code because the Criminal Procedure Code does not contemplate a review of
an order. Hence in the absence of any review power or inherent power with the
subordinate criminal courts, the remedy lies in invoking Section 482 of the
Code." [See also Poonam Chand Jain vs. Fazru - (2005) SCC (Cri) 190] For
the reasons aforementioned, we do not find any merit in this appeal, which is
dismissed accordingly.
However, the Appellant shall be at liberty to raise other contentions in an
appropriate proceeding.
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