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The Supreme Court on 19th August directed the Magistrate to expeditiously dispose of the “stillborn since 2003” case where lack of evidence has incapacitated the courts to determine whether the person was a ‘public servant’.

Justice Navin Sinha and Justice A.S. Bopanna were hearing BSNL v Pramod Sawant, an appeal challenging the dismissal of a writ application for lack of sanction under Section 197, CrPC which grants protection to judges and public servants from prosecution for offences alleged to have been done while acting or purporting to act in the discharge of official duty except with the sanction of the concerned State or Central Government.

BSNL was under obligation to employ registered private security guards only.  An inspection revealed engagement of unregistered guards. The Magistrate issued process against the officers in 2003. Several applications were made for recall of process and at each level the same were rejected. The appellants nos. 2 to 4 were sent on deputation to BSNL from Indian Telecommunication Service. Since appellant no. 3 & 4 were absorbed in BSNL, Court held that they do not enjoy protection of sanction under Section 197/CrPC. But the position of Appellant no. 2 is unclear as he retired while still on deputation.

Public Servant is defined under Section 21(12) in the Indian Penal Code as a person:

“(a) in the service or pay of the Government or remunerated   by   fees   or   commission   for   the performance   of   any   public   duty   by   the Government;

(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial   or   State   Act   or   a   Government company   as   defined   in   section   617   of   the Companies Act, 1956 (1 of 1956).”

It is settled law that employees of public sector corporations are not entitled to the protection under Section 197 Cr.P.C. as ‘public servant’.

In Mohd. Hadi Raja v State of Bihar (1998), SC 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.

‘Public Servant’ or not is a question of fact and thus the Bench kept it open for consideration by the Magistrate. Court has urged that the trial meet its end within a year from today.

–India Legal Bureau


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