Andhra HC (Pre-Telangana)
Government Of India vs Sukhlal Singareni Collieries Company ... on 18 August, 1993
Equivalent citations: 1993(2)ALT(CRI)457, 1994CRILJ418
ORDER
1. The petitioner-complainant filed a complaint under Section 72 of the Mines Act and the Regulations framed thereunder for prosecuting the accused-respondents, which was numbered as C.C. No. 64 of 1989 on the file of the Judicial Magistrate of First Class, Chennur. Then the accused-respondents filed a petition - Crl. M.P. No. 1005 of 1990 under Section 197, Cr.P.C. contending that they are employees of the Singareni Collieries Company Limited which is a Government undertaking, that as such they are public servants as defined under Clause (12) of Section 21 of the Indian Penal Code, that therefore, prior sanction of Government to prosecute them u/S. 197, Cr.P.C. is necessary and that therefore, the complaint filed by the complainant who is the revision petitioner herein, is not maintainable and liable to be dismissed.
2. On a consideration of the material on record, the learned Magistrate found that the accused-respondents who are the employees of Singareni Collieries Co. Ltd., are public servants within the meaning of Section 21(12) of the Indian Penal Code, that prior sanction of the Government is necessary to prosecute them and as no such sanction was accorded by the Government, the complaint is liable to be dismissed. Accordingly, the Magistrate allowed the petition, dismissed the complaint, stopped further proceedings and discharged the accused who are respondents herein under Section 258 of the Code of Criminal Procedure. Challenging the order of discharge, the petitioner preferred this revision.
3. Heard the counsel for the revision petitioner and the counsel for the respondents-accused.
4. Now the point for consideration is whether sanction from the Government to prosecute the accused as required under Section 197, Cr.P.C. is necessary ?
5. To appreciate the rival contentions, it is first and foremost relevant to extract Section 197, Cr.P.C. which is 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.
(2) and (3) x x x x x x x x x x x x x x x x x (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."
As could be seen from the above provision, I am of the view that this section affords protection from false, vexatious or mala fide prosecutions to important categories of public servants performing onerous and responsible functions fearlessly. The sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.
6. The question of sanction under Section 197, Cr.P.C. can be raised and considered at any stage of the proceedings. In considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint. It can take into account all the materials on the record at the time when the question is raised and falls for consideration. In considering the question whether sanction for prosecution was or was not necessary, the criminal acts attributed to the accused are to be taken as alleged.
7. From a plain reading of sub-section (1) of Section 197, Cr.P.C., it is clear that sanction is necessary not in every case, but only in the case of 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'. In other words, sanction is necessary for a public servant who is amenable to the jurisdiction of the State or Central Government, as the case may be, for removal from office. Until and unless this prime ingredient of Section 197, Cr.P.C. is fulfilled, it cannot be said that, merely because he is a public servant, though the other ingredients are fulfilled, sanction to prosecute him, is necessary.
8. The learned counsel for the petitioner relied on a decision of this Court reported in Konkati Narayana v. Balakanti Veerayya, , wherein it was held as follows :
"Section 197, Cr.P.C. does not afford protection to all public servants but only to certain category of public servants, namely, those who are not removable from office save by or with the sanction of a State Government or the Central Government as the case may be. It is true that the Sarpanch and the Upa-Sarpanch are deemed to be public servants by virtue of S. 145 of the Hyderabad Gram Panchayats Act, but a Sarpanch or an Upa-Sarpanch of a Gram Panchayat is not a public servant not removable from his office save by or with the sanction of the State Government; nor is he a person employed in connection with the affairs of the State."
From the above decision, it is manifest that the respondents-accused who are employees of Singareni Collieries Company Limited are not public servants not removable from office save by or with the sanction of the State or Central Government.
9. The learned counsel for petitioner also relied on a decision reported in The State v. B. L. Ohri, , wherein it was clearly held that 'where the accused persons at the time of the commission of the alleged offence were employed in connection with the affairs of the National Coal Development Corporation and not of Union of India, no sanction of Central Government is necessary for their prosecution'. The facts of the present case are similar to those in the above cited case, which was rendered following a decision of the Supreme Court reported in State of Punjab v. Barkat Ram, . The Patna High Court further held that the Corporation even though is a Government company has got a separate legal entity from the Government itself and hence sanction of the Central Government will not be required for prosecution of all its employees.
10. From the above rulings, it is amply clear that persons may be public servants within the definition of Section 21 of the Indian Penal Code, but still if they are not removable from office save by or with the sanction of the Government, no sanction for their prosecution under Section 197, Cr.P.C. is necessary.
11. The lower Court relied upon an unreported decision of this Court in Crl. Revision Cases Nos. 521 and 569 of 1989 and declined to rely on The State v. B. L. Ohri. To my mind, perhaps, the true import of Section 197, Cr.P.C. might not have been brought to the notice of the learned single Judge while delivering judgment in Crl. Revision Cases Nos. 521 and 569 of 1989. The view taken by the lower Court that the respondents-accused are public servants is right, but as the other and prime ingredient of Section 197, Cr.P.C. that they are not removable from office save by or with the sanction of the Government, is not fulfilled, the order under revision is set aside and the Criminal Revision Case is allowed. The lower Court is directed to restore the case i.e. C.C. No. 64/89 to file and proceed with the trial, as sanction to prosecute the respondents-accused is not necessary.
12. Revision allowed.