Document Fragment View

Matching Fragments

It will be appropriate at this stage to refer to the provisions of Section 197 of the Code of Criminal procedure:-

" section 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 Courts shall take cognizance of such offence except with the previous sanction.

In support of the contention that sanction under Section 197 of the Code of Criminal Procedure is warranted in the case of officers of public undertakings and government companies having deep and pervasive control of the government, it has been submitted that the object of sanction under Section 197 of the Code of Criminal Procedure is to guard against vexatious proceedings against judges, magistrates and public servants and to secure the opinion of superior authority whether it is desirable that there should be prosecution against public servants satisfying the requirements of Section 197 (1) of the Code of Criminal Procedure. In this Connection, reference has been made to the decision of this Court in Director of inspection & audit and others Vs. C.L. Subramaniam (1994 Suppl. (3) SCC 615) and in Shambhoo Nath Misra Vs. State of U.P. & Others ( 1997 (5) SCC 326). In the said decisions, this Court has indicated that sanction by appropriate authority as contemplated in Section 197(1) of the Code of Criminal Procedure, is intended to protect public servant from needless harassment. Such protection by way of sanction renders assurance and protection to the honest officer to perform public duties honestly and to the best of his abilities because the threat of prosecution demoralises the honest officer.

Relying on the said decision, it has been contended that when the instrumentality and the agency of the government through the corporate veil is the third arm of the government and such instrumentality is discharging the functions which the government had intended to do by evolving the mechanism or contrivance of a corporate structure, the officers of such corporate structure should not be treated differently for the purpose of requirement of sanction under Section 197 of the Code of Criminal Procedure. Such differentiation between the government servant employed in the departments directly run by the government and the officers of public undertakings discharging the functions intended to be performed by the government through the contrivance or veil of a corporate structure will frustrate the very purpose to protect the officers discharging the public duties intended to be performed by the State. Such officers of Corporate sector, therefore, must get the protection by way of sanction under Section 197 of the Code of Criminal Procedure, and the provisions of Sections 197 of the Code of Criminal Procedure should be interpreted not in a restricted manner hereby limiting its application only to the government servant setting in the departments directly run by the government. On the country, Section 197 must be interpreted broadly so that the officers of the instrumentalities of the State having deep and pervasive control of the State and discharging the duties and functions intended to be performed by the government through the contrivance of corporate structure, get the desired protection under Section 197 of the Code of Criminal procedure. Such contentions have, however, been seriously disputed by Shri Sandal, learned senior counsel appearing for the State of Bihar and also Mr. Jain, learned senior counsel appearing for the prosecuting agency. It is contended by them that even though some of the public undertakings and the government companies may be treated as instrumentalities or agencies of the State in view of deep and pervasive control of the government but it cannot be held that they are employed in connection with the affairs of the Union of the State. A department directly run by the government has always been placed on a different footing and the employees of the public undertaking and the government company even when they are instrumentalities or agencies of the Stat, have never been treated at per with the government servants. In this connection, reference has been made to the decision of this Court in Dr. S. L. Agarwal vs. The General Manager, Hindustan Steel Ltd. (1970 (1) SCC 177). The Constitution Bench of this Court in the said decision had to consider whether Dr. Agarwal who was appointed as Asstt. Surgeon in Hindustan Steel Ltd. was holder of a civil post under the Union and whether Article 311 of the Constitution is applicable in respect of such employee. it has been held in the said decision that the Hindustan Steel Ltd. is not a department of the government nor the servants of it are holding posts under the State. The said concern has its independent existence and by law relating to corporation it is distinct even from its members. Therefore, employees of Hindustan Steel Ltd. do not answer the description of holder of civil post under the union as stated in Article 311 of the Constitution.

It has been contended that sanction contemplated under Section 197 of the Code of Criminal Procedure must be restricted only in respect of a Judge or a Magistrate or a Public Servant who is directly employed by the government and not by any instrumentality or agency of the government. When the Legislature has declined to render the same protection as available to public servant contemplated under Section 197 of the Code of Criminal Procedure to the officers of instrumentalities or the agencies of the State by expressly covering such officers, they cannot claim such protection under Section 197 of the Code of Criminal procedure and any liberal interpretation of Section 197 for covering such officer will amount to legislation by Court.