Allahabad High Court
S.B.Agrawal And Another vs State Of U.P. on 11 January, 2018
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 28 Case :- CRIMINAL REVISION No. - 252 of 2003 Revisionist :- S.B.Agrawal And Another Opposite Party :- State Of U.P. Counsel for Revisionist :- Vivek Shrotria Counsel for Opposite Party :- Govt.Advocate Hon'ble Abdul Moin,J.
1. None appears for the revisionists despite the list having being revised.
2. The Court has perused the judgments passed by the learned Trial Court as well as the Revisional Court and have heard the arguments of Sri Dharmendra Singh learned A.G.A. for the State-respondents.
3. The instant revision has been preferred against the judgment and order dated 20.5.2003 passed by the VI Additional Sessions Judge, Raebareli, in Criminal Revision No.-53 of 2001 in Re: State Versus S.B.Agarwal and Another by which the Revisional Court has set aside the order dated 10.3.2000 passed by the Special Judicial Magistrate, Raebareli in Case No.-513 of 1999, under Section 92 Factories Act, at Police Station Unchahar District Raebareli by which the complaint filed against the revisionists had been rejected.
4. A perusal of the order passed by the learned Trial Court dated 10.3.2000 indicates that a complaint was filed by one Sri Anurag Srivastava, Assistant Director of Factory, U.P. Lucknow under Section 92 & 7-A of Factories Act and Rule 52-B of the Factories Rules 1950 against the accused S.B. Agarwal and P.C. Kumbaj, Manager of M/s National Thermal Power Corporation (hereinafter referred to as NTPC), Unchahar District Raebareli, alleging that on 21.9.1998 at about 9:00 a.m. a worker who was working on the hand grinding machine became a victim of electric current, fell down senseless and was subsequently declared dead in the NTPC Hospital. It is alleged that due to failure of proper earthing procedure, the said incident had occurred. The complaint was presented before the learned Judicial Magistrate, who summoned both the accused.
5. Thereafter, before the learned Trial Court, both the accused filed an application claiming protection under Section 197 Cr.P.C. contending that they are public servants and the prosecution has been lodged against them without obtaining the sanction as contemplated under the provision of the 197 Cr.P.C. and accordingly the order summoning them cannot be sustained. The learned Trial Court placing reliance on a judgment of the Karnataka High Court came to the conclusion that both the accused are public servants being officers of a public undertaking and the legal umbrella would be available to them under the provision of 197 Cr.P.C. and in his opinion, as sanction under Section 197 Cr.P.C. was not obtained, accordingly the complaint was rejected and both the accused were discharged vide judgment and order dated 10.3.2000.
6. Being aggrieved against the said order Criminal Revision No.-53 of 2001 in Re: State Versus S.B.Agarwal and Another was filed before the Sessions Judge, Raebareli subsequently transferred to VIth Additional Sessions Judge for disposal. The learned Revisional Court after considering the facts and considering the law laid down by this Court in the case of NTPC Versus Industrial Tribunal Allahabad-F.L.R. 1991 page 391 came to the conclusion that the officers of the NTPC cannot be considered to be Government Servant and accordingly protection available under Section 197 Cr.P.C. would not be available to them. After observing so, the order dated 10.3.2000 was set aside and the learned Trial Court was directed to proceed with the matter.
7. Upon the instant revision being filed, this Court vide order dated 19.6.2003 stayed the effect and operation of the said judgment and order dated 20.5.2003.
8. This Court has gone through the grounds taken by the revisionists and heard the learned A.G.A. appearing for the State. The main stress in the grounds taken by the revisionists are that the officers of the NTPC would be covered by the definition of "Public Servant" removable only by the Central Government and hence entitled for the benefit of Section 197 Cr.P.C. Further ground has been taken that the learned Trial Court did not properly appreciate Section-21 (twelfth) (b) of the Indian Penal Code and accordingly failed to appreciate that the revisionists would be public servants removable by the Central Government and thus contend that the Revisional Court without application of mind, patently erred in setting aside the order of the learned Trial Court dated 10.3.2000 and directing for proceeding with the trial.
9. Having heard the arguments advanced by the learned A.G.A., it would be relevant to reproduce the provisions of Section 7-A & 92 of the Factories Act and Rule 52-B of the Factories Rules 1950 as under:-
"
7A. General duties of the occupier.- (1) Every occupier shall ensure, so far as is reasonably practicable, the health, safety and welfare of all workers while they are at work in the factory.
(2) Without prejudice to the generality of the provisions of sub- section (1), the matters to which such duty extends, shall include- (a) the provisions and maintenance of plant and systems of work in the factory that are safe and without risks to health; (b) the arrangements in the factory for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) the provision of such information, instruction, training and supervision as are necessary to ensure the health and safety of all workers at work; (d) the maintenance of all places of work in the factory in a condition that is safe and without risks to health and the provision and maintenance of such means of access to, and egress from, such places as are safe and without such risks; (e) the provision, or maintenance or monitoring of such working environment in the factory for the workers that is safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work.
(3) Except in such cases as may be prescribed, every occupier shall prepare, and, as often as may be appropriate, revise, a written statement of his general policy with respect to the health and safety of the workers at work and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision thereof to the notice of all the workers in such manner as may be prescribed.
92. General penalty for offences.- Save as otherwise expressly provided in this Act and subject to the provisions of Section 93, if in, or in respect of, any factory there is any contravention of any of the provisions of this Act or of any rules made thereunder or of any order in writing given thereunder, the occupier and manager of the factory shall each be guilty of an offence and punishable with imprisonment for a term which may extend to [two years] or with fine which may extend to [one lakh rupees] or with both, and if the contravention is continued after conviction, with a further fine which may extend to [one thousand rupees] for each day on which the contravention is so continued.
Provided that where contravention of any of the provisions of Chapter IV or any rule made thereunder or under section 87 has resulted in an accident causing death or serious bodily injury, the fine shall not be less than [twenty five thousand rupees] in the case of an accident causing death, and [five thousand rupees] in the case of an accident causing serious bodily injury. Explanation.-In this section and in section 94 "serious bodily injury" means an injury which involves, or in all probability will involve, the permanent loss of the use of, or permanent injury to, any limb or the permanent loss of, or injury to, sight or hearing, or the fracture of any bone, but shall not include, the fracture of bone or joint (not being fracture of more than one bone or joint) of any phalanges of the hand or foot.
The Uttar Pradesh Factories Rules 1950 52-B. Machiney and plant:- No machinery or plant equipment shall be constructed, situated, operated or maintained in any factory in such a manner as to cause risk of bodily injury.
10. Section-7A (1) of the Factories Act 1948 clearly indicates the general duties of the occupier which specifies that every occupier shall ensure the health, safety and welfare of all workers while at work in the factory. Section-7A (2) specifies that the matters to which such duty as indicated in Section-7A-(1) shall extend including the provisions and maintenance of plant and systems of work in the factory that are safe and without risk to health, the provisions of maintenance or monitoring of such working environment in the factory for the workers which is safe and without risks to health etc. Section-92 of the Factories Act 1948 prescribes the penalties and procedures that where in any factory there is any contravention of any of the provisions of the Factories Act or any Rule, the Occupier and Manager of the factory shall each be guilty of such offence and punishable with imprisonment or with fine. Further Rule 52(B) of the Uttar Pradesh Factories Rules 1950 provides that no machinery or plant equipment shall be constructed, situated operated or maintained in any factory in such a manner as to cause risk of the bodily injury.
11. Accordingly when the relevant provisions under which both the revisionists have been charged are seen in the context of the Factories Act and Rules, it clearly transpires that death by electrocution of the employee would attract the provisions of Section 92 of the Factories Act 1950.
12. Section 197 of the Cr.P.C. gives protection to a Public Servant which provides that no court shall take cognizance of such offence except with the previous sanction of the Central Government. Accordingly this Court proceeds to consider the provisions of Section 197 of the Cr.P.C., which for the sake of convenience is being reproduced below:-
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: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted (3A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
13. Whether the revisionists can be given the benefit of Section 197 of the Cr.P.C. has to be considered in the context of as to whether they are "Public Servant" so as to attract the provisions of Section 197 of the Cr.P.C. as is sought to be argued by them.
14. In this regard this Court will first have to see as to what is the National Thermal Power Corporation. From the information available on the website, it comes out that National Thermal Power Corporation Limited, now known as NTPC, is an Indian Public Sector Undertaking, engaged in the business of generation of electricity and allied activities. It is a company incorporated under the Companies Act 1956 and a "Government Company" within the meaning of the said Act. The headquarters of the company is situated at New Delhi. NTPC's core business is generation and sale of electricity to state-owned power distribution companies and State Electricity Boards in India. The company also undertakes consultancy and turnkey project contracts that involve engineering, project management, construction management and operation and management of power plants.
15. Thus, the NTPC is a public sector undertaking and accordingly the Court has to see as to whether the employees of the public sector under taking can be considered to be a "Public Servant" so as to get the benefit of Section 197 of the Cr.P.C.
16. Though the word "public servant" has not been defined in the Cr.P.C., but Section 2(y) of the Cr.P.C. provides that the words and expressions used in the Cr.P.C. and not defined but defined in the Indian Penal Code have the same meanings respectively assigned to them in that Code. "Public Servant" is defined in Section 21 of the Indian Penal Code, which for the sake of convenience is being reproduced below:-
"21. "Public Servant"-The words "public servant' denote a person falling under any of the descriptions hereinafter following; namely:-
Second- Every Commissioned Officer in the Military, [Naval or Air] Forces [of India];
Third- Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;] Fourth- Every officer of a Court of Justice [(including a liquidator, receiver or commissioner)] whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;
Fifth. - Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;
Sixth- Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;
Seventh- Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
Eighth- Every officer of [the Government] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
Ninth- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of [the Government], or to make any survey, assessment or contract on behalf of [the Government], or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of [the Government], or to make, authenticate or keep any document relating to the pecuniary interests of [the Government], or to prevent the infraction of any law for the protection of the pecuniary interests of [the Government] ;
Tenth- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;
Eleventh- Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;] 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.
Explanation 1.- Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.
Explanation 2.- Wherever the words " public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.
Explanation 3.- The word "election" denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election."
For the purpose of this case Section-21 (twelfth) of the Indian Penal Code, over which which reliance has also been placed in the grounds for revision, defines every person (a) in the service or pay of the Government or remunerated by fees or commission for the performance of public duty by the Government; and (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, to be a public servant.
17. Thus, although a person in the service of a corporation established by or under a Central or State Act or a Government company could be considered to be a public servant, but protection under Section 197 of the Cr.P.C. is not available to a public servant unless the conditions indicated in that section are fulfilled, though through the mechanism of corporate structure some of the public sector undertakings are in fact performing the functions which are intended to be performed by the State yet such instrumentality or agency being a juristic persons has an independent status and the action taken by it however important and 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 of the Cr.P.C.
18. In this regard this Court takes notice of the judgment of the Hon'ble Supreme Court in the case of S.L. Agarwal Versus General Manager, Hindustan Steel Ltd. Reported in 1970 Volume-1 SCC page 177, wherein the Hon'ble Supreme Court considered as to whether Dr. S.L. Agarwal who was working as Assistant Surgeon in Hindustan Steel Ltd., could be considered as the holder of a civil post and as to whether the provisions of Article 311 of the Constitution were applicable to him. The Hon'ble Supreme Court held that Hindustan Steel Ltd. was not a department of the Government nor its servants held posts under the State so as to attract the protection under Article 311 of the Constitution of India.
19. Similarly the Hon'ble Supreme Court in the case reported in 1998 Volume 5 SCC page 91 Mohd. Hadi Raja Versus State of Bihar and Another considered at length as to whether the provisions of Section 197 of the Cr.P.C. were applicable for prosecuting officers of the public sector undertakings or the Government Companies when on account of deep and pervasive control of finance and administration of such undertakings and Government Companies they are held as State within the meaning of Article 12 of the Constitution of India and held as under:-
"20- Although the instrumentality or agency with a corporate veil, for all intents and purposes may be held to be a third arm of the government and such instrumentality discharges the duties and functions which the State intends to do as indicated in Ajay Hasia's case, such instrumentality or agency is none the less a juridical person having a separate legal entity. Therefore, such instrumentality must be held to have an independent status distinct from the State and cannot be treated as a government department for all purposes. Therefore, even if an officer of such instrumentality or agency takes or receives, keeps or expends any property or executes any contract, such acts even though in ultimate analysis may be held to have been done in the interest of the State, such action cannot be construed, as of rule, an action of the government by its employees or by an authority empowered by the government. It may be indicated here that it is not necessary that persons falling under any of the descriptions given in various clauses under Section 21 of IPC need to be appointed by the government. If such person falls under any of the descriptions as contained in various clauses of Section 21 of the Indian Penal Code, such person must be held to be a public servant. Explanation 1 of Section 21 indicates that persons falling under any of the above descriptions are public servants whether appointed by the government or not. Explanation 2 indicates that wherever the words 'public servant' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. Sub clause (b) of clause twelve of Section 21 expressly makes the officers of local authority and corporation established by or under a Central, Provincial or State Act or a government owned company as defined in Section 617 of the Companies Act, 1956, public servants. But protection under Section 197 Cr.P.C. is not available to a public servant unless other conditions indicated in that Section are fulfilled.
21- It is be noted that though through the contrivance or mechanism of corporate structure, some of the public under takings 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 Governments as such within the meaning of Section 197 Cr.P.C.
22- For the purpose of enforcing the fundamental rights, the public undertaking which, on account of deep and pervasive control, can be held to be a State within the meaning of Article 12 has been treated on a par with the government department but in all its facets, public undertaking has not been equated with the department run directly by the Government. It was on this account that the Surgeon appointed in Hindustan Steel Works Ltd. has not been equated with the government servant for the purpose of applicability of Article 311 of the Constitution. In Praga Tools case, even though Praga Tools was held to be an instrumentality or agency of the State, it has been indicated by this Court that Praga Tools Corporation had a separate legal existence and being a juridical person cannot be held to be a government concern run by or under the authority of the Government. Similar view was taken by the Patna High Court in Sindhri Fertilizer's case by indicating that even though the said concern was completely owned by the President of India who could also issue directions and the Directors were to be appointed by the President of India, in the eye of law, the company was a separate legal entity and had a separate legal existence. Such decision of Patna High Court has been approved by this Court. In Dhanoa's case, an IAS Officer when on deputation to a public undertaking having deep and pervasive control of the State, was not held to be a government officer entitled to protection under Section 197 of the Code of Criminal Procedure, even though such officer did not cease to be a government servant and had a lien in government service while on deputation. The protection which a government department was entitled to has also not been given to Hindustan Steel Works Ltd. in K. Jayamohan's case.
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.
24- It is also to be indicated here that in 1973, the concept of instrumentality or agency of State was quite distinct. The interest of the State in such instrumentality or agency was well known. Even then, the legislature, in its wisdom did not think it necessary to expressly include the officers of such instrumentality or the government company for affording protection by way of sanction under Section 197 Cr. P.C. 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 instrumentality or agency for bringing such officers under the protective umbrella of Section 197 Cr.P.C., it would have done so expressly.
26- Therefore, it will not be just and proper to bring such persons within the ambit of Section 197 by liberally construing the provisions of Section 197. Such exercise of liberal construction will not be confined to the permissible limit of interpretation of a statute by a court of law but will amount to legislation by Court.
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. The appeals are disposed of accordingly."
20. The aforesaid judgment in the case of Md. Hadi Raja (supra) has been relied on and followed recently by the Hon'ble Supreme Court in the case of Punjab State Warehousing Corporation Versus Bhushan Chandra and Another reported in 2016 SCC on-line SC 632 wherein while hearing the appeal of the Punjab State Warehousing Corporation against the judgment of the High Court, which had set aside the conviction of its Managing Director Bhushan Chandra on the ground of he being an employee of the corporation and thus being a Public Servant and the trial court having commenced trial without obtaining sanction under Section 197 of the Cr.P.C., set aside the judgment of the High Court and held as under:-
"The Court referred to Section 197 Cr.PC, noted the submissions and eventually held that the protection by way of sanction under Section 197 Cr.PC 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.
28. In view of the aforesaid analysis, the irresistible conclusion is that the respondents are not entitled to have the protective umbrella of Section 197 Cr.PC and, therefore, the High Court has erred in setting aside the conviction and sentence on the ground that the trial is vitiated in the absence of sanction. Consequently, we allow the appeal and set aside the judgment and order passed by the High Court and remit the matter to the High Court to decide the revision petition in accordance with law."
21. Here it would be pertinent to mention that the revisionists have not brought on record any order/ notification declaring the Officers of the NTPC as "Public Servants" as has been indicated by the Hon'ble Supreme Court in the case of Mohd. Hadi Raja (Supra).
22. Keeping in view the aforesaid discussions and the settled proposition of law, this Court is of the opinion that the revisionists cannot be said to be public servants so as to get the protective umbrella of Section 197 of Cr.P.C. Accordingly, none of the grounds taken in the revision are legal or tenable in the eyes of law. The judgment and order passed by the Revisional Court dated 20.5.2003 is perfectly legal and justified. The revision is accordingly dismissed. The learned Trial Court is directed to proceed with the trial and conclude the same expeditiously in accordance to law say within a period of six months of the date of judgment of this Court after giving due opportunity to the revisionists. The Registrar shall send a copy of the judgment to the trial court within a month from today.
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(Abdul Moin, J.) Order Date:-11.1.2018 Jyoti/ -