IMPORTANT POINT
Employees of MSEDCL are considered public servants under the Electricity Act, necessitating sanction for prosecution under the Criminal Procedure Code.

JUDGMENT :

1. The petitioners/employees of the then MSEDCL had impugned the order of the learned Judicial Magistrate First Class issuing process against them for the offences punishable under Sections 323 and 506 of the Indian Penal Code in Criminal Case No.114 of 2008 dated 17.06.2008 and the order of the learned Additional Sessions Judge, Biloli passed in Criminal Revision No.17 of 2008 dated 08.09.2008 dismissing the revision.

2. The learned counsel for the petitioners submits that before the complaint was filed against the petitioners, an FIR was registered against the complainant for the offences punishable under Sections 353 and 504 of the Indian Penal Code and Section 135 of the Indian Electricity Act, 2003. However to counter that case, respondent no.2 had filed the false complaint against them. He submitted that the petitioners being public servants, the order issuing the process against them could not be passed unless the sanction is obtained as provided under Section 197 of the Criminal Procedure Code. No Court can take the cognizance against the public servants, who are the public servants defined under Section 21 of the Indian Penal Code or any other relevant provisions of law. To bolster his argument, he relied on the case of Lalankumar Singh and Others Vs. State of Maharashtra, 2022 SCC Online SC 1383 and State of Haryana and Others Vs. Bhajanlal and Others, 1992 Supp(1) SCC 335. He also submitted the notification of the State of Maharashtra dated 04.06.2005 to bolster his argument that the entire property of the Maharashtra State Electricity Board with assets and liability has been vested with the State Government.

3. The learned counsel for the respondent submits that the petitioners were not the public servants at the relevant time. They were the employees of a Board run by the Government. Therefore, sanction under Section 197 of the Criminal Procedure Code was not essential. The Court had directed an inquiry under Section 202 of the Criminal Procedure Code. After receiving the report, the learned Magistrate has applied his mind and satisfied that there was a case for issuing process against the petitioner. The case laws relied upon by the learned counsel for the petitioners do not support his contention. Those are on different facts.

4. On hearing the respective counsels, the following question arises for determination :

(i) Whether the petitioners were public servants ?

(ii) Was the order issuing process against the petitioners was bad in law for want of sanction under Section 197 of the Criminal Procedure Code ?

5. Section 197 of the Criminal Procedure Code provides that no Court shall take cognizance of any offence, except with the previous sanction of the concerned authority. The Magistrate proceed to issue summons or warrant as the case may be under Section 204 of the Criminal Procedure Code only on taking the cognizance.

6. At the time of admission of present writ petition, a statement was made before the Court that the question whether the petitioners are public servants is a subject matter for consideration before the Apex Court in S.L.P. (Cri.) No.7366 of 2007 and connected Petitions bearing S.L.P (Cri.) No.7338 of 2007. The question whether they are entitled to seek protection under Section 197 of the Criminal Procedure Code requires consideration. On these submissions, the rule was made and ad-interim relief was granted and the record was called.

7. In Criminal Appeal No.1979 of 2010 arising out of S.L.P. (Cri.) No.7336 of 2007, no issue was before the Court about sanction under Section 197 of the Criminal Procedure Code and the appellants did not claim that they were the public servants.

8. Section 169 of the Electricity Act, 2003 provides that, members, officers, etc., Appellate Tribunal, appropriate commission to be public servants. The said Section reads thus :

“169. Members, officers, etc., of Appellate Tribunal, Appropriate Commission to be public servants.– The Chairperson, Members, officers and othe