1982 Supreme(Del) 189

High Court Of Delhi
ORIENTAL BANK OF COMMERCE - Appellant
Versus
DELHI DEVELOPMENT AUTHORITY - Respondent
CRIMINAL APPEAL 260 of 1981
Decided On : 07/16/1982

Headnote:(i) Criminal Trial — Cyclostyled forms of sanction and complaints used by the D.D.A. and of summoning orders used by the Magistrate — user of such forms does not show non-application of mind.

       (ii) Delhi Development Act - Sections 14, 22, 29(2) & 49 — Bank using premises as Staff Training College-cum-Hostel in residential area — whether permissible — banking activity purely commercial and not public utility to constitute a permitted user.

       (iii) Code of Criminal Procedure - Sections 468, 469, 472 & 473 — Scope — limitation for prosecution and time to be excluded discussed — knowledge of the offence and person aggrieved, meaning of — non-conforming user is a continuing offence — prosecution not barred by limitation if it continues on the date the court is called upon to take cognizance — bar on taking cognizance and not on filling of a complaint — period of sanction and notice to be excluded.

       (iv) Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 — Code of Criminal Procedure - Section 21 Clause 12(b) — Whether banks are corporations? — No — Whether Chairman of the Bank is public servant and whether sanction under Section 197 Cr. PC. for prosecution necessary? — No — Both the D.D.A. and the public servant who files the complaint are complaints — The director of the bank does not act as servant, representative, agent or delegate, but the very ego of the bank — no master and servant relationship — the affairs of the banks are not affairs of the Union.

       Residential premises in the occupation of the petitioners which are nationalised banks, were inspected and it was found that they were being used for non-residential purpose. Show-cause notices were issued by the D.D.A., why action should not be taken under Section 14 rad with Section 29(2) and Section 32 of the Delhi Development Act. The replies filed were rejected and sanction accorded for prosecution. A complaint was then lodged in the court of the Metropolitan Magistrate who directed issue of process against the accused. The Chairman of the Banks claimed inter alias protection of Section 197 Cr. P.C. and bar of limitation under Section 468 Cr. P.C. Dismissing the petitions challenging the issue of process,

       Held:

       1. The cyclostyled sanctions, the complaints and the orders. do not at all disclose that the sanctioning or the complaining authority or the Magistrate did not apply their minds. It was only after considering the record that the sanctions, the complaints and the process orders were made. The carefully worded drafts of sanctions, complaints and summoning orders were prepared in advance so that no loopholes could later on be found in the wordings of the sanctions, the complaints and the summoning orders. In case of a large number of similar prosecutions, it saves lot of precious time involved in wirting or typing each time a case is handled. Self same are the reasons which prompt the enacting and the rule making authorities to prescribe standard forms. The executive and judicial authorities can also resort to use of standard forms. There is no legal infirmity in doing so. The filing of the necessary facts in the blank space indicates consideration and proper application of mind.

       2. The user of the premises is a question of fact and require to be investigated, upon evidence, by the Magistrate. Banking is purely a commercial activity and cannot be considered a public utility.

       3. The words person aggrieved are of wide import and should not be subjected to restrictive interpretation. They do not include a mere busy body who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because something has been done or omitted to be done contrary to what the law requires. The simple meaning of the words person aggrieved in Section 469 Cr. P. C. should be a person having suffered loss or injury, a victim of the crime. This will also include a person or an authority who is by or under any law charged with the duty or administer it and to prosecute those who violate its provisions. In a criminal case, any person can set the law into motion and in case of a non-conforming user, besides the D.D.A. a neighbour or even a local resident will be a person aggrieved. The officer who has authorised to file complaint was the aggrieved person, and the period of limitation should commence from his knowledge.

       4. Since the offence of non-conforming user was a continuing offence the date of inspection, the date of sanction and the date of filing of the complaint become irrelevant because when the Magistrate had taken cognizance, the offence had not ceased six months before. Cognizance of an offence of non-conforming user will never be barred by limitation if it continues on the date the court is called upon to take cognizance of the offence.

       5. Both the DDA and the public servant who files the complaint are complainants. Persons who are victims of the offence or desire or are enjoined or expected to see that the offender be dealt with are all complainants.

       6. The bar of limitation under Section 468 Cr. P. C. is imposed not on the filing of the complaints but on taking cognizance thereof by the court, hat is when the Magistrate applies his mind to the contents of the complaint, information or police report or on is own knowledge with a view to dealing with the offence. If the offence is a continuing one and continues at the moment of taking cognizance thereof then cognizance will be within limitation irrespective of when the offence came to be committed for the first time, or when it first came to the knowledge of the person aggrieved or when the complaint was lodged.

       7. Objection to limitation should be raised before the Magistrate so that he could be invited to condone the delay under Section 473 Cr. P.C.

       8. In order to get the protection of Section 197 Cr. P.C. the accused must satisfy the following conditions :

       (1) that the accused is a public servant;

       (2) that he is a public servant not removeable from his office save by or with the sanction of the appropriate Government:

       (3) that the offence should have been committed by him while acting or purporting to act in the discharge of his official duty;

       (4) that the accused is employed or was at the time of commission of the offence, employed in connection with the affairs of the Union or the State, as the case may be.

       9. Whether an accused is a public servant or not, is a mixed question of fact and law.

       10. Nationalised bank is not a Corporation within the narrow meaning of Section 21(12)(b) I.P.C.

       11. A Corporation is a legal entity entirely separate and distinct from the individuals who compose it. The Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 does not provide for the individuals who will compose or constitute a New Bank. The Board of Directors are not the individuals who compose the Corporation. The Bank are personified institutions, artificial legal persons np doubt but not because they are corporations.

       12. In order that a person can claim to be in the service of or in the pay of the corporation he must establish a master and servant relationship between the Corporation and himself. The directors in whom the control, superintendence and management of the Bank vest cannot be considered to have a master and servant relationship vis-a-vis the Bank. The corporation does not control the manner of their work. The director does not act as servant, representative, agent or delegate. He is an embodiment of the company. He is its very ego and centre.

       13. There is no general proposition apart from Article 311 of the Constitution that a person cannot be removed by an authority subordinate to that by which he was appointed. It is one thing to urge that the Government which appoints, can dismiss him as it is the privilege of the employer but in the absence of any provision, it is quite another to say that no person other than the Government can remove him.

       14. The word office occurring in Section 197 Cr. P.C. should be construed to mean not a private office, but a public office, an agency for the State the duties of which involve in their performance the exercise of some portion of sovereign power either great or small, either in making, executing or maintaining the laws. A public office is one which entitles a man to act in the affairs of others without appointment or permission.

       15. The Chairman is employed in the affairs of the body corporate, the Bank. but not of the Union. Banking will be an affair of the Union, if the business of the Bank was directly administered by the Government.

       16. The share capital and the profits of the Banks vest in the Central Government, and the Central Government and the Reserve Bank exercise control upon their activities. The appointment of the managing Director is made by the Government. Yet, the Banks are entities entirely distinct and separate from the Union and their affairs and activities cannot be considered affairs of the Union. The employees of the Banks cannot be held to be employees of the Union and that leads to the

       inevitable inference that Chairman and Directors of the Bank are not employed in the affairs of the Union. To make their appointments and to exercise control over them is an economic affair of the Union, but the hiring of the premises by the Banks in persuance of their business cannot be called an affair of the Union. The Chairman or the Directors of the Banks are not public are not public servants and no sanction is required for their prosecution under Section 197 Cr.P.C.