The court clarified that employees of a corporate entity like B.S.N.L. are not necessarily considered public servants in connection with Union affairs, thus not requiring sanction for prosecution under Section 197 Cr.P.C.

O R D E R

In Crl.M.C. 1997 of 2003 filed under Section 482 Cr.P.C., the petitioners, three in number, seek to quash Annexure B order dated 7-6-2003 passed by the J.F.C.M., Kunnamkulam in Crl. M.P. 9533 of 2002 in C.C. 1030 of 2002 as per which that court rejected the claim of the petitioners that their prosecution without a sanction under Sec. 197 Cr.P.C. is bad. In Crl.M.C. 4042 of 2003 the very same petitioners, by way of abundant caution, have sought to quash Annexure III private complaint pending before the J.F.C.M.

Kunnamkulam as C.C. 1030 of 2002.

2. I heard Advocate Sri. K. Ramakumar, the learned counsel appearing for the petitioners and Advocate Sri. K.V. Sohan, the learned counsel appearing for the Ist respondent/complainant.

3. C.C. 1030 of 2002 referred to above arose out of a private complaint filed by the first respondent herein alleging the commission of offences punishable under Sections 120B, 167, 340, 341, 342, 464, 465, 499, 500 and 420 I.P.C. by the petitioners who are employees of the Bharat Sanchar Nigam Limited (B.S.N.L).

4. Assailing the impugned order Sri. K. Ramakumar, the learned counsel for the petitioners made the following submissions before me: -

In paragraph 9 of the private complaint it has been admitted that the accused are public servants. The private complaint which was registered as Crl.M.P. 785 of 2002 was initially dismissed on 1-2-2002 holding that no sanction under Sec. 197 Cr.P.C. was obtained . The said dismissal was challenged by the first respondent/complainant by filing Crl.R.P. 244 of 2002 before this Court. As per order dated 1-7- 2002 produced as Annexure II in Crl. M.C. 4042 of 2003 this Court set aside the order of dismissal and directed the learned Magistrate to re-consider the question of sanction in the light of the decision of the Supreme Court inMuhammed Haji Raja v. State of Bihar – AIR 1998 SC 1945. Instead of complying with the said order of this Court the learned Magistrate has relegated the question of sanction to the stage of trial and has at the same time, held that no sanction is necessary to prosecute the petitioners. InSankaran Moitra v. Sadhna Das and Another - 2006 (4) SCC 584 it has been held by the Apex Court that sanction is a condition precedent for taking cognizance and that the want of sanction can be raised by the accused at any stage and when once it is raised, a decision on the question of sanction cannot be postponed. There is nothing in the decision reported inMohd. Hadi Raja v. State of Bihar and Another - 1998 SC 1945 to hold that sanction to prosecute the petitioners is not necessary. The petitioners were admittedly employees of the Telecommunication Department of the Union of India and they were on deputation to the B.S.N.L. on 19-7-2001 when the offences were allegedly committed. They were, therefore, “public servants” within the meaning of Sec. 21 I.P.C. and were removable from office only by the Government of India as they were employed in connection with the affairs of the Union within the meaning of Sec. 197 (1) (a) Cr.P.C. Rule 41 of the B.S.N.L. Conduct, Discipline and Appeal Rules, 2006 (“BCDA Rules” for short) shows that the services of the employees of the Telecommunication Department were lent to the B.S.N.L. and the Lending Authority retained control over them. As per Circular dated 2-9-2003 the employees were given the option to be absorbed in the B.S.N.L. and until then they were to be treated as the officers of the Department of Telecommunication. Rule 34 of the B.C.D.A. Rules would indicate that the Telecommunication Department alone could terminate their services. By virtue of Rule 43 of the said Rules with effect from 1-10-2000 they were deemed to be on deputation in the B.S.N.L. Providing Telecommunication service is the function of the Telecommunication Department and it is this function which has been taken over by the B.S.N.L. which is a company registered under the Companies Act., 1956. When the services of the accused can be t