SECTION 197 CRIMINAL PROCEDURE CODE Vis-a-Vis PUBLIC SERVANT UNDER SECTION 21(Twelfth)(b) IPC
Section 197 CrPC vis-a-vis & Idquo; Public Servant” under section 21(twelfth)(b) IPBy Ch.Amritalingam.
Cite as( 2010)PL August S-8 The moot question under discussion is that whether the protection given under Section 197 of the Criminal Procedure Code 1973(called&Idquo, CrPC”) could be made applicable in respect of employees of government companies who are not removable from office save by or with sanction of the government provided other implied conditions are fulfilled. Flowing from a plain reading of the section, sub section (1) of Section 197 uses the term&idquo;public servant” thereby meaning the person who is employed in connection with the &Idquo; affairs of the Union, of the Central Government/State Government” under sub clauses (a) and (b) of sub section (1) of section 197 CrPC . Within the meaning of the term&Idquo; affairs of the Union of the Central Government/State Government&rdquo as set out in section 197, brings within its fold the government companies as the instrumentality of the Government through the Corporate veil, having separate juridical identity.
Different courts ruled differently in the matter of definition of &Idquo; public servant” under section 21(twelth)(b) IPC. In S.P.Das V.State of Bihar 1 it has been held that the Senior Divisional Manager and the Assistant Manager of the Insurance Company are & Idquo; public servant” as defined under section 21 IPC for entitling sanction under section 197 CrPC. However. it has been held by the Allahabad High Court that no sanction is required for prosecuting an employee or officeer of a nationalised bank (Bhagwan Prasad Saxena v. State of U.P.2). However, in State of Mharashtra v.L.D.Kanchan 3 it has been held that an employee of a nationalized Bank is a public servant. Although, in a different context, the recent judgement of the Supreme Court in National Small Industries Corpn. Ltd v State (NCT of Delhi) 4 while dwelling on the definition of &Idquo; public servant” it has been held that a government company is not a &Idquo; public servant&irdquo; but every employees of the company is a &Idquo; public servant&rdquo.
Contrarily, the SC judgement in Mohd.Hadi Raja v. State of Bihar 5 held that the employees of government companies cannot come within the ambit of the term&Idquo;public servant” for getting the protective cover as envisaged in section 197 of the Criminal Procedure Code 1973 as they cannot be treated on a par with the government servant based on the following supportive and rival contentions.
Section 197 CrPC vis-a-vis & Idquo; Public Servant” under section 21(twelfth)(b) IPBy Ch.Amritalingam.
Cite as( 2010)PL August S-8 The moot question under discussion is that whether the protection given under Section 197 of the Criminal Procedure Code 1973(called&Idquo, CrPC”) could be made applicable in respect of employees of government companies who are not removable from office save by or with sanction of the government provided other implied conditions are fulfilled. Flowing from a plain reading of the section, sub section (1) of Section 197 uses the term&idquo;public servant” thereby meaning the person who is employed in connection with the &Idquo; affairs of the Union, of the Central Government/State Government” under sub clauses (a) and (b) of sub section (1) of section 197 CrPC . Within the meaning of the term&Idquo; affairs of the Union of the Central Government/State Government&rdquo as set out in section 197, brings within its fold the government companies as the instrumentality of the Government through the Corporate veil, having separate juridical identity.
Different courts ruled differently in the matter of definition of &Idquo; public servant” under section 21(twelth)(b) IPC. In S.P.Das V.State of Bihar 1 it has been held that the Senior Divisional Manager and the Assistant Manager of the Insurance Company are & Idquo; public servant” as defined under section 21 IPC for entitling sanction under section 197 CrPC. However. it has been held by the Allahabad High Court that no sanction is required for prosecuting an employee or officeer of a nationalised bank (Bhagwan Prasad Saxena v. State of U.P.2). However, in State of Mharashtra v.L.D.Kanchan 3 it has been held that an employee of a nationalized Bank is a public servant. Although, in a different context, the recent judgement of the Supreme Court in National Small Industries Corpn. Ltd v State (NCT of Delhi) 4 while dwelling on the definition of &Idquo; public servant” it has been held that a government company is not a &Idquo; public servant&irdquo; but every employees of the company is a &Idquo; public servant&rdquo.
Contrarily, the SC judgement in Mohd.Hadi Raja v. State of Bihar 5 held that the employees of government companies cannot come within the ambit of the term&Idquo;public servant” for getting the protective cover as envisaged in section 197 of the Criminal Procedure Code 1973 as they cannot be treated on a par with the government servant based on the following supportive and rival contentions.
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