Delhi District Court
J.P. Singh vs . Ashughosh Kumar Nirmal & Anr. on 20 March, 2014
J.P. Singh Vs. Ashughosh Kumar Nirmal & Anr.
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE (SHAHDARA),
KARKARDOOMA COURTS, DELHI
Unique I.D. : 02402R0361362013
Criminal Revision No. : 39/14
Sh. J.P. Singh
DGM, BSES Yamuna Power Ltd.,
Shakti Kiran Building, Karkardooma,
Delhi-110092.
...........Revisionist
Versus
1. Ashughosh Kumar Nirmal,
S/o. Sh. S.S. Nirmal,
R/o. H.No.1/4018, Ram Nagar Extension,
Loni Road, Shahdara, Delhi-110032.
2. The State of NCT of Delhi.
..........Respondents
1. Date of Institution : 07.11.2013
2. Date of reserving the order : 18.03.2014
3. Date of pronouncement : 20.03.2014
4. Decision : Revision
petition is
dismissed.
(Pulastya Pramachala)
Page no. 1 of 13 Addl. Sessions Judge (Shahdara)
Karkardooma Courts / Delhi.
J.P. Singh Vs. Ashughosh Kumar Nirmal & Anr.
ORDE R IN REVISION Vide this order, I shall decide the criminal revision against the order dated 05.08.2013, passed by Sh. Munish Garg, ld. MM, in the complaint case no.1175/1/2012. Vide impugned order ld. MM had dismissed the application filed by the revisionist herein, under Section 197 Cr.P.C.
Briefly stated the relevant facts of this case are as follows :-
1. Respondent herein filed a criminal complaint against the revisionist for offence under Section 500 IPC. The revisionist was summoned by the trial court for offence under Section 500 IPC, vide order dated 10.08.2011. Thereafter, the revisionist moved an application under Section 197 Cr.P.C. seeking discharge on the grounds of absence of sanction required under Section 197 Cr.P.C.
2. The respondent had alleged in his complaint that he was employed as circle coordinator in BSES through the Safe Guard Man Power Consultant and he was posted in North East Circle. The revisionist was working as DGM (MMG) BYPL and he was annoyed with the respondent. Therefore, he with intention to damage the carrier of respondent, framed a false case due to which a motivated raid was conducted against the respondent on 13.03.2008. On 14.03.2008, respondent submitted his resignation to AGM (Business), which was forwarded to Vice President (BYPL). The revisionist was (Pulastya Pramachala) Page no. 2 of 13 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
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aware about the acceptance of the resignation of respondent and, thereafter, respondent went to Canada. Thereafter, respondent came to know through his father that a criminal complaint was lodged by BSES against him and later on, it was revealed that the revisionist had made a false written complaint to DCP (North East) on 18.03.2008 against the respondent, in order to damage and defame his reputation. After undergoing a lot of mental suffering, the respondent was finally discharged by the Court of ld. ASJ, Special Court (Electricity) on 21.07.2010. On the basis of such facts, the respondent alleged that he had suffered injury to his reputation, due to which such complaint was filed against the revisionist.
3. In the application under Section 197 Cr.P.C., revisionist pleaded that the respondent had filed the complaint case against him, without seeking sanction from the Administrator, which was essential to prosecute a Government Servant. He also pleaded that he was appointed through UPSC and was sent to DESU. Later on, he was transfered to DVB and after unbundling of DVB, he was transfered to DISCOM-I ( a Govt. company). At the time of registration of FIR against the respondent, he was working for BSES Yamuna Power Ltd., which was joint venture with GNCT of Delhi.
4. Revisionist further pleaded that as per Clause 3 (1) of the Tripartite Agreement and Section 21 Clause (12) (a) & (b) of IPC, he was a (Pulastya Pramachala) Page no. 3 of 13 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
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public servant and, therefore, without sanction of the Administrator, cognizance should not have been taken against him.
5. In support of his contentions, revisionist relied upon copy of Tripartite Agreement between Govt. of NCT Delhi, DVB and DVB Junior Eng. Association, order passed by Supreme Court in Civil Appeal. no. 663/2004, titled as Kuldeep Kumar Vs. Delhi Power Supply Co. Ltd. & Ors. on 14.01.2010 and copy of salary slip issued to the revisionist on behalf of respondent.
6. Reply was filed to this application, in which respondent refuted the contentions of the revisionist and pleaded that M/s. BSES Yamuna Power Ltd. is not a Govt. company neither the revisionist is a public servant. Respondent also relied upon a judgment passed by Hon'ble High Court of Delhi in a case titled as Ashok Kumar Vs. CBI, Crl. Revision Petition 495/2005, decided 06.02.2009 to submit that no sanction was required to prosecute the revisionist.
7. Vide impugned order, ld. MM appreciated the respective contentions of the parties and held that no protection as of public servant was extended to employee of BSES and, therefore, the revisionist herein is not entitled to the protection of Section 197 Cr.P.C. Ld. MM while reaching to aforesaid conclusion, also observed that the revisionist did not place any document on the record to show the share of Government of NCT of Delhi in BSES Yamuna Power Ltd., in order to prove that it was a Government (Pulastya Pramachala) Page no. 4 of 13 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
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company. He also observed that the reply given by public information officer of Government of NCT of Delhi, Dept. of Power, to the application moved by respondent herein under RTI Act mentioned that BSES Yamuna Power Ltd. company is a distribution company, in which private equity is 51 %. He also relied upon the judgment passed by Hon'ble High Court of Delhi in Ashok Kumar's case (supra).
8. Before this Court, ld. counsel for revisionist made same contentions, which were apparently made before the trial court. He argued that as per Clause 3 of Tripartite Agreement, status of the revisionist would remain as of a public servant because terms and conditions of his service could not have been changed. He also argued that the salary slips of the revisionist show that he is renumerated by DISCOM-I, which was formed after dissolution of DVB and same is sufficient to show that he get salary as a public servant without any change in his service conditions. He further argued that this DISCOM-I is engaged in the services of public utilities and revisionist is therefore, well covered under Section 21 of IPC. He further argued that the judgment passed by Hon'ble High Court of Delhi in Ashok Kumar's case (supra) was based on the admission of the petitioner therein that he was working in a private company and, therefore, same cannot be applicable to this case because revisionist herein claims himself to be a public (Pulastya Pramachala) Page no. 5 of 13 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
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servant. He further argued that Rule 6 of Delhi Electricity ? (transfer claim) Rules 2001 r/w Rule 8 and 11 shows that revisionist is to be treated as public servant. He also referred to order passed by Supreme Court in Kuldeep Kumar's case (supra) to argue that even this order shows that employee in the position of revisionist should be treated as public servant.
9. I have carefully perused the impugned order and the record of this case. Ld. trial court has basically relied upon the judgment passed by Hon'ble High Court of Delhi in Ashok Kumar's case (supra) to hold that revisionist is not entitled for protection of Section 197 Cr.P.C. The relevant portion of Section 197 Cr.P.C. is reproduced herein under :-
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.
(Pulastya Pramachala) Page no. 6 of 13 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
J.P. Singh Vs. Ashughosh Kumar Nirmal & Anr.
(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) 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.
10.The aforesaid provision talks about a public servant, which is defined in Section 21, clause 12 of IPC, in the following terms :-
The words "public servant" denote a person falling under any of the descriptions hereinafter following :-
(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.
11. These law provisions as well as the facts peculiar to the revisionist herein were dealt with by Hon'ble High Court of Delhi in the case of Ashok Kumar (supra). In that case a chargesheet was filed (Pulastya Pramachala) Page no. 7 of 13 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
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against the accused under Section 13 (2) r/w Section 13 (1) (e) of the PC Act. The accused was earlier employed in Delhi Vidyut Board (hereinafter referred to as DVB). Subsequently he was transferred to BSES Rajdhani Power Ltd. in the year 2002. The accused had challenged the framing of charge against him before Hon'ble High Court of Delhi, taking plea that he was a public servant being employed in DVB and without obtaining sanction under Section 19 (1) (c) of the PC Act, he could not have been prosecuted. Before Hon'ble High Court of Delhi, on behalf of the accused reference was made to Delhi Electricity Reforms Act 2000 and the Rules framed there under and Tripartite Agreement between Government of NCT of Delhi, DVB and Delhi State Electricity Workers Union and Others. The Court took into consideration the effect of transfer of the accused from DVB to BSES, the effect of Tripartite Agreement and the Rules framed under Delhi Electricity Reforms Act 2000, especially Rules 6 relating to transfer of personnel. After considering these aspects, the Court held that the accused was not covered within definition of public servant after his transfer to BSES and he was, hence, not entitled for protection under Section 19 of the PC Act or Section 197 Cr.P.C. While reaching this conclusion the Court made following observation :-
"14. Neither Tripartite agreement nor Delhi (Pulastya Pramachala) Page no. 8 of 13 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
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Electricity Reforms Rules, 2001 made any provisions thereby maintaining status of the employees as public servant on their transfer to respective companies. Similarly, no protection under Section 197 of the Criminal Procedure Code (hereinafter referred to as Cr.P.C.) nor Section 19 of the PC Act was extended to the personnel so transferred after 01.07.2002, except pecuniary benefits and security of job, pension etc. No other protection, as of a public servant was extended to the employees of DVB or of DESU after DVB became non-est. Service Rules incorporated in FRSR, only regulate the service condition of a public servant qua their length of service, promotions, transfers, department enquiries, termination from service and voluntary retirement etc. FRSR in no manner can be said to be protecting the status of the transferred employees of DVB as public servant for offences covered under the PC Act and other offences for which sanction under Section 19 of the PC Act or Section 197 Cr.P.C. is a pre- requisite for prosecuting him in a court of law.
15. Public Servant is defined in Section 2(c) of the PC Act. It means and includes any person in the (Pulastya Pramachala) Page no. 9 of 13 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
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service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty; any person in the service or pay of a local authority; any person in the service or pay of a corporation established by or under a Central, Provincial or State Act or an authority or a body owned or controlled or aided by the Government or a Government company and so on. As per explanation 2 of this Section 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.
16. In this case, after his transfer to BSES, petitioner ceased to be a public servant because he ceased to be in service of the Government and no longer remained on the pay of the Government or remunerated by the Government in any manner for the performance of his duties and he was not performing any public duty as a public servant. Petitioner being an employee of DVB was a public servant within the meaning of Section 2 (e) of the PC Act when the FIR was registered against him but, he (Pulastya Pramachala) Page no. 10 of 13 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
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ceased to be a Government servant when the chargedsheet was filed against him.
17. Therefore BSES cannot be termed as government company as defined in Section 617 of the Companies Act. The petitioner was a public servant within the meaning of Section 2 (c) of PC Act while in employment of DESU, which was a public undertaking but, ceased to be a public servant with the BSES and other companies having completely taken over DESU. No sanction under Section 19 of the PC Act was therefore required for prosecuting the petitioner after he was transferred to BSES, a private company. Now, he can be removed from his office by BSES only for which no sanction is required.
18. Petitioner at the same time can also not be termed as a public servant as being employee of BSES he is not connected with the affairs of the Union or of a State and can be removed by his employer without any sanction of the Central or the State Government as the case may be. Therefore, no protection under Section 19 of the PC Act can be claimed by the petitioner."
12.The status of revisionist in this case is similar to the status of (Pulastya Pramachala) Page no. 11 of 13 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
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accused before Hon'ble High Court of Delhi in aforesaid case. The revisionist herein has also taken support of same Rules and same Tripartite Agreement to submit that he is a public servant. Ld. Counsel for revisionist distinguished the ratio of judgment passed in Ashok Kumar's case on the basis of a plea that the accused in that case had himself pleaded before the Hon'ble High Court of Delhi that BSES is a private company. He argued before this Court that BSES is not a private company and there is no reliable document in support of reply given to the respondent by the Department of Power to show that Government has minor share holding in this company. It is worth to refer here that as per reply given by PIO, Department of Power of Government of NCT of Delhi, the BSES Yamuna Pvt. Ltd. is a distribution company in which private equity is 51% and the Government equity is only 49% through Delhi Power Company Ltd.
13.In my considered opinion, the ratio of the judgment passed in Ashok Kumar's case (supra) cannot be distinguished on the basis of the fact that accused in that case himself pleaded that BSES is a private company. Hon'ble High Court of Delhi in categorical terms observed that BSES is a private company after considering the provisions of the Company Act as well (refer the para 17 of the judgment). Moreover, revisionist herein has not placed any such material on the record to show the share holding, which is contrary (Pulastya Pramachala) Page no. 12 of 13 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.
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to the reply given by PIO, Department of Power, Government of NCT of Delhi. In my opinion, Ashok Kumar's case (supra) is directly applicable to the case of revisionist and, therefore, I find that the order passed by ld. trial court does not suffer from any legal infirmity. Ld. MM has passed well reasoned order, taking support of directly applicable case law, which cannot be termed to be illegal order. The order passed by Hon'ble Supreme Court in Kuldeep Kumar's case (supra) does not deal with the question that whether such employee would be treated as public servant or not? That order is limited to the question of entitlement of pecuniary benefits of that employee. Therefore, no guidance can be taken from that order, to reach any conclusion in respect of the question involved herein.
14.Hence, I do not find any merit in this revision petition.
Accordingly, present revision petition is dismissed.
Announced in the open court (PULASTYA PRAMACHALA) today on 20.03.2014 Additional Sessions Judge (Shahdara), Karkardooma Courts, Delhi.
(This Order contains 13 pages) (Pulastya Pramachala) Page no. 13 of 13 Addl. Sessions Judge (Shahdara) Karkardooma Courts / Delhi.