Order [ENTITY], J.
Page 1133
1. The petitioner being the accused in [CASE NUMBER], pending on the file of learned XXI Addl. City Civil & Sessions Judge & Special Judge for [ENTITY] Cases, Bangalore, has prayed for her discharge under [SECTION] of [ACT] The said prayer is rejected by the Court below by its order dated 9.3.2007. Hence, this petition is filed against the said order.
2. The case of the prosecution is that, while the accused-petitioner was working as a Manager of State Bank of Mysore, Rajajinagar Branch, dining the period from August 1982 to June 1983, she had misappropriated an amount of Rs. 40,400/- by making false entries in the S.B. accounts of the customers by name [ENTITY], [ENTITY], Smt. [ENTITY]. She has also allegedly made false entries in Ledger Books, Books of Accounts of the Bank pertaining to all these accounts. She has also forged the signatures on the cheques and withdrawal forms. Thus, the charge sheet is lodged against her alleging offences punishable under [SECTION], [SECTION], [SECTION] of [ACT]. At the first instance, she was tried in [CASE NUMBER]. The said case ended in acquittal on the ground that the sanction order issued is invalid. Subsequently, another charge sheet is filed by [ENTITY] on 18.8.1995 based on same facts. At the time of training of charge, it was contended by the accused that the taking of cognizance without sanction order is bad in the eye of law etc., The said argument was turned down by the trial Court. Thereafter, [CASE NUMBER] was filed before this Court questioning the order of the trial Court. This Court by its order dated 10.4.2002 upheld the contention of the accused and quashed the proceedings. Consequently, the proceedings in [CASE NUMBER] stood quashed. Against the said order, [ENTITY] went to Apex Court. The Apex Court set aside the order of this Court passed in [CASE NUMBER] and directed the trial Court to dispose of the case in accordance with law within six months. The order of the Apex Court was passed on 7.10.2005. This resulted in revival of [CASE NUMBER]. As aforementioned, the accused argued for her discharge before the trial Court. The same came to be refused by the order impugned in this petition.
3. Two contentions are raised before the trial Court by the petitioner viz., (a) the accused is not a public servant within the meaning of [SECTION] of [ACT] and therefore, she cannot be tried for the offences under the provisions of [ACT]; and (b) the orders passed under [SECTION] and [SECTION] of Delhi Special Police Establishment Act, 194[SECTION], are invalid and thereby the [ENTITY] does not get jurisdiction to investigate the case in Karnataka State, The very contentions are raised before this Court also in this petition.
4. Sri [ENTITY], learned Counsel for the petitioner vehemently contented that the petitioner is not a public servant within the meaning of [SECTION] of [ACT], inasmuch as, she is neither a Government servant nor a Page 1134 servant of local authority or a Corporation established by or under a Central, Provincial or State Act or a Government company as defined under [SECTION] of the [ACT], 195[SECTION]. The said submission is opposed by Sri [ENTITY], learned Counsel appearing for the respondent-[ENTITY], who inter alia contended that the petitioner is an employee of a Government, company as defined under [SECTION] of the [ACT], inasmuch as, the State Bank of Mysore is an subsidiary bank of State Bank of India. He further submits that State Bank of India is a government organisation and 92% of the shares of the State Bank of Mysore are held by State Bank of India, which is a government company as defined under [SECTION] of the [ACT].
It is not in dispute that under the provisions of [ACT], a public servant means as a person as mentioned defined under [SECTION] of [ACT]. [SECTION] of [ACT] has got 12 clauses. The relevant clause i.e., [SECTION] of [ACT] reads thus:
[SECTION] Public Servant:
Clause 12:- Every 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] of the [ACT], 195[SECTION] (1 of 195[SECTION]).
Explanation -1 to [SECTION] of [ACT] reads thus:
Exploitation -1: Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.
Thus, it is clear from the aforesaid provisions that if a person is hi the service of a Government company as defined under [SECTION] of the [ACT], he/she becomes a public servant whether or not he/she is appointed by the Government, In this context it is relevant to note the provisions of [SECTION] of the [ACT], 195[SECTION], which read thus:
[SECTION]: Definition of 'Government company':-. For the purposes of this Act, Government company means any company in which not less than fifty-one per cent of the paid up share capital is held by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments and includes a company which is a subsidiary of a Government company as thus defined.
From the aforesaid provision of [SECTION] of the [ACT], it is clear that if 51% or more of the paid up share capital is held by the Central Government or by the State Government, the said company would Page 1135 become a Government company. It is also made clear therein that the Government Company includes a company which is subsidiary of a Government company.
The [ACT], is enacted by the Central Government to provide for formation of certain Government or Government associated banks as subsidiaries of the State Bank of India and for the constitution, management and control of the subsidiary banks -so formed, and for matters connected therewith, or incidental thereto. Under [SECTION] of the said Act, the State Bank of Mysore is also established, apart from certain other State Banks. Thus, it is clear that the State Bank of Mysore is the subsidiary bank of State Bank of India [SECTION] of the said Act makes it further clear that the State Banks established under the provisions of [ACT], are the body corporates with perpetual succession. The body corporate constituting each of the new State Banks established, including State Bank of Mysore, shall consist of State Bank of India and other shareholders, if any. Thus, it is amply clear from [SECTION] of the said Act that the State Bank of Mysore is a body corporate and it consists of State Bank of India and other shareholders. During the course of argument, learned Counsel appealing for the respondent-[ENTITY] has produced certain statistics along with the memo to inform the Court that the State Bank of India holds 92.33% of shares in State Bank of Mysore. In view of the above, there cannot be any doubt that State Bank of Mysore is the subsidiary bank of State Bank of India, which is a Government company. The State Bank of India came into existence by an Act of Parliament, as successor to the Imperial Bank of India. Hence, it has to be held that the State Bank of Mysore is a Government company as defined under [SECTION] of the [ACT], If it is so, the petitioner being the Manager of State Bank of Mysore, and who was working as a Manager of State Bank of Mysore, during the relevant period is a public servant as mentioned under [SECTION] of [ACT]. As aforementioned, [SECTION] of [ACT] further makes it clear that the person who is in the services of a Government company is a public servant, whether or not is appointed by the Government. In view of the same, it is clear that the petitioner is a public servant and is liable to be prosecuted for the offences committed by her under the provisions of [ACT].
5. The second question raised by the petitioner is also properly answered by the Court below in the impugned order. It is no doubt true that the Central Government may have to pass an order and issue Notification under [SECTION] of Delhi Special Police Establishment Act, 194[SECTION], for extending the powers and jurisdiction of the members of the Delhi Special Police establishment to any area. Likewise, the concerned State Government also will have to give its consent by issuing Notification under [SECTION] of the Delhi Special Police Establishment Act, 194[SECTION], for extending the powers and jurisdiction of members of the Delhi Police Page 113[SECTION] Establishment. In this matter, Notifications are issued both under [SECTION] as well as under [SECTION] of the Delhi Special Police Establishment Act, 194[SECTION]. It is the contention of the petitioner that the notifications so issued under [SECTION] and [SECTION] of the Delhi Special Police Establishment Act, 194[SECTION], are not in accordance with [SECTION] and [SECTION] of the [ACT], as the said Notifications no where disclose that they are issued under the orders of the President of India or the Governor of Karnataka State as the case may be.
It is no doubt true that in the Notifications issued under [SECTION] and [SECTION] of the Delhi Special Police Establishment Act, 194[SECTION], it is not mentioned that they are issued under the orders or authority of the President of India or the Governor of the State. In this connection it is relevant to refer to the judgment of the Apex Court in the case of [PRECEDENT]. , wherein it is observed thus:
Clause (1) requires that all executive action of the State Government shall have to be taken in the name of the Governor. Further, there is no particular formula of words required for compliance with [SECTION]. What the court has to see is whether the substance of its requirement has been complied with. A Constitution Bench in [PRECEDENT] held that the provisions. of the article were only directory and not mandatory in character and if they were not complied with, it could still be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor. Clause (1) does not prescribe how an executive action of the Government is to be performed; it only prescribes the mode under, which such act is to be expressed. While Clause (1) is in relation to the mode of expression, Clause (2) lays down the ways in which the order is to be authenticated. Whether there is any government order in terms of [SECTION]; has to be adjudicated from, the factual background of each case.
(emphasis supplied) The said observations of the Apex Court equally apply in all force to [SECTION] of the [ACT] also. From the observations of the Apex Court, it is clear that the requirements of provisions of the said Articles are only directory and not mandatory in character. But from the Notifications issued, this Court finds that the substance of the requirements of [SECTION] and [SECTION] of the [ACT] has been complied with. In view of the same, it cannot be said that the Notifications issued under [SECTION] and [SECTION] of the Delhi Special Police Establishment Act, 194[SECTION], are bad in the eye of law. Moreover, as observed by the Apex Court, if the petitioner still feels Page 1137 that the said question is to be established as a question of fact that the impugned orders were in fact issued by the State Government or by the Central Government, the same can be gone into during trial.
[SECTION]. Except the aforesaid two points, no other points are argued by the petitioner. Looking to the totality of the facts and circumstances of the case, as there is prima facie case for trial against the petitioner, this is not a fit case to discharge the petitioner. The two points are answered against the petitioner. In view of the same, this Court does not find any error in the impugned order. This Court concurs with the conclusions arrived at by the Court below.
Criminal petition is accordingly dismissed. Since the matter is pending for a long time, the trial Court is directed to decide the criminal case itself on merits as expeditiously as possible, but not later than the outer limit of six months from the date of receipt of this order.