IMPORTANT POINT
Employees of public sector corporations not entitled to the protection u/s 197, CrPC.

JUDGMENT

Navin Sinha, J.

The appellants are aggrieved by the dismissal of their writ application, rejecting the challenge to their prosecution for lack of sanction under Section 197 of the Code of Criminal Procedure, 1973 (hereinafter called as "Cr.P.C.").

2. A criminal complaint case no.14/S/2003 was filed by respondent no.1 before the Additional Chief Metropolitan Magistrate under clauses 26(2)(3) and 39 read with clause 27 of the Private Security Guards (Regulation of Employment and Welfare) Scheme, 1981 read with Section 3(3) of Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981 (hereinafter called as "the Act"). The complaint stated that the appellant - Corporation was registered with the respondent - Security Guards Board. The Corporation was under obligation to engage security guards registered with respondent no.1 only. An inspection revealed engagement of unregistered guards. The Magistrate issued process against the appellants in 2003. The appellants prayed for recall of the process, which was rejected on 06.04.2004. A criminal revision preferred against the rejection was allowed on 07.09.2004. The matter was remanded for reconsideration, which was again rejected by the Magistrate on 07.06.2005. The writ petition preferred by the appellants against the issuance of process was also rejected on 22.12.2006. The fresh revision against order dated 07.06.2005 assailed the prosecution on grounds of being barred by limitation, that the Act was not applicable to the appellants' establishment, and that the issuance of process was bad in absence of sanction under Section 197, Cr.P.C., appellants nos.2 to 4 being 'public servants'. The revision application was again dismissed on 05.09.2007 leading to the impugned order assailed in the present appeal. In the writ petition, the appellants gave up their challenge on grounds of limitation and inapplicability of the Act which has therefore attained finality. The challenge in the writ petition is confined to the question of sanction only.

3. The High Court relying on Mohd. Hadi Raja vs. State of Bihar and another, (1998) 5 SCC 91, held that the protection of sanction under Section 197, Cr.P.C. was not available to officers of Government companies or public undertakings even if it fell within the definition of 'State' under Article 12 of the Constitution.

4. Shri R.D. Agarwal, learned senior counsel appearing on behalf of the appellants, submitted that appellants nos.2 to 4 fell within the definition of 'public servant' as they were discharging public duty in pursuance of the policy of the Central Government. Appellants nos.2 to 4, belonged to the Central Civil Service - Class-I, having been appointed by Hon'ble the President of India to the Indian Telecommunication Service, were removable by orders of the President only. The fact that they may have been sent on deputation to the appellant Corporation is inconsequential mandating sanction under Section 197, Cr.P.C. before their prosecution. The High Court erred in distinguishing Dr. Lakshmansingh Himatsingh Vaghela vs. Naresh Kumar Chandrashanker Jah and another, (1990) 4 SCC 169, considering that the appellants nos.2 to 4 were removable by orders of the President of India only.

5. Learned counsel for the respondents acknowledged the original appointment of appellants nos.2 to 4 in Central Civil Services Class-1. It was however submitted that the appellant Corporation was established on 01.10.2000. The appellants nos.2 to 4 were sent on deputation initially. Option was given for absorption in the appellant Corporation. Appellants nos.3 and 4 opted for absorption and thus became employees of the appellant Corporation with effect from 01.10.2000 and ceased to be government employees in the Central Civil Services Class-1. Appellant no. 2 appears to have retired from the appellant Corporation while on deputation, but his status is not clear.

6. The appeal raises a short and pure question of law for consideration