IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2424 OF 2007. M/s. Bharat Sanchar Nigam Ltd. & Ors. ..Petitioners. versus Mr.P.P. Karape & Anr. ..Respondents. .... Mr.O.S. Kutty, a/w. Sabiha Mukadam, for the Petitioners. Mr. Lata Desai, i/b. Pallavi Divekar, for the Respondent No.1. Mr. D.P.Adsule, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 17th September 2008. : 17th September 2008. : 17th September 2008. P.C.: 1. Heard the learned counsel appearing for the petitioners. A private complaint was filed by the first respondent on behalf of the Security Guards Board against the petitioners alleging commission of offence under clause 26(2)(3) and clause 27 read with clause 39 of the Maharashtra Private Security Guards (Regulations of Employment and Welfare) Scheme, 1981. The first petitioner is M/s. Bharat Sanchar Nigam Limited. The second to fourth petitioners are the Chief General Manager, Principal General Manager and Assistant Director (Administration) respectively of the first petitioner-Company who have been arraigned as accused. Process was issued by the learned Magistrate on the said complaint. A revision application was filed by the : 2 : petitioners before the Sessions Court essentially for challenging order issuing process. Various submissions were made before the Sessions Court. The Sessions Court rejected the revision application. 2. The only submission made in this writ petition is that the second to fourth petitioners are entitled to protection under section 197 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the said Code’). The learned counsel appearing for the petitioners submitted that the second to fourth petitioners were public servants within the meaning of section 6 and 21 of the Indian Penal Code, 1860. He submitted that the appointments of the second to fourth petitioners are made by the Hon’ble the President of India and this factual position has not been disputed by the first respondent. He submitted that the said petitioners can be removed from the employment only by the Hon’ble the President of India though they are employees of the first petitioner. He submitted that the second to fourth petitioners being appointed by the Hon’ble President of India were entitled to protection under section 197 of the said Code. The learned counsel appearing for the first respondent relied upon the decision of the Division Bench of this Court dated 9th : 3 : October 2007 in criminal application no.2854/2004 (Shri Asoke Basak & Another v/s. The State of Maharashtra and Others) and other connected matters and submitted that the view taken by the Division Bench of this Court is that the officers of the Government-Companies and Public Sector Undertakings are not protected under section 197 of the said Code. Reliance is also placed by the advocate for the first respondent on the decision of the Apex Court in the case of Mohd. Hadi Raja v/s State of Bihar & Another (AIR 1998 SC 1945). 3. The learned counsel appearing for the petitioners by way of reply relied on a decision of the Apex Court in the case of Dr. Lakshmansingh Himatsingh Vaghela v/s Naresh Kumar Chandrashanker Jah and Another [ (1990) 4 SCC 169 ]. He submitted that the said decision of the Apex Court is of a Larger Bench consisting of three Hon’ble Judges, whereas the said decision in the case of Mohd. Hadi Raja (supra) was rendered by the two Hon’ble Judges. He submitted that the decision in the case of Dr. Laxmansingh Himatsingh Vaghela (supra) has not been considered by the Division Bench of this Court. He also placed reliance on additional affidavit filed by the petitioners. : 4 : 4. I have considered the submissions. The only issue to be decided is whether the second to fourth respondents are entitled to protection of section 197 of the said Code. In the case of Mohd. Hadi Raja (supra), the Apex Court considered the following question as under :- "The common question of law that arises in all these matters is whether the provisions of sanction under section 197 of the Code of Criminal Procedure, 1973 are applicable for 5 prosecuting officers of the public sector undertakings or the Government Companies when on account of deep and pervasive control of finance and administration of such undertakings and Government Companies they are held as State within the meaning of Article 12 of the Constitution of India?" The Apex Court held as under :- "Therefore, in our considered opinion, the protection by way of sanction under section 197 of the Code of Criminal Procedure is not applicable to the officers of Government : 5 : Companies or the public undertakings even when such public undertakings are ‘State’ within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the Government. The appeals are disposed of accordingly. It is, however, made clear that we have not taken into consideration various other grounds raised in these appeals challenging the maintainability of the Criminal Proceedings initiated against the concerned officers of the public undertakings or the Government Companies." After considering the decision of the Apex Court in the case of Mohd. Hadi Raja (supra), the Division Bench of this Court in the case of Shri Asoke Basak (supra) in paragraph 42 has held thus :- "42. Consequently it was held in para 24 of the judgment in the case of Mohammed Raja supra that the language of the Section 197 of the Cr.P.C. did not grant protection to officers of a public undertaking, it being a separate legal person with distinct legal entity. Such instrumentality stood on a different footing : 6 : than Government departments. It was observed that legislature did not think it necessary to expressly include the Officers of Government Companies for affording them protection under section 197 of the Cr.P.C. Hence, they had no such protection even though they were a State within the meaning of Article 12 of the Constitution of India on account of "deep and pervasive control of the Government"." 5. It is true that the Division Bench has not referred to the decision of the Apex Court in the case of Dr. Laxmansingh Himatsingh Vaghela (supra). In the said case, the Apex Court was dealing with an employee of the Ahmedabad Municipal Corporation. The appellant before the Apex Court was holding the post of Laboratory Officer. The State Government by exercising power under the Food Adulteration Act, 1954 appointed the appellant as a Public Analyst for the local area within the limits of the Municipal Corporation. The appellant moved the High Court for quashing the criminal proceeding lodged against him on the ground that there was no requisite sanction obtained under section 197 of the said Code. The High Court dismissed the petition. The Apex Court while dismissing the appeal of the appellant observed : 7 : that the petitioner can be removed by the local authority and not by the Government and therefore, protection under section 197 of the said Code was not available inasmuch as the appellant was not a public servant removable only by the State Government. The learned counsel appearing for the petitioner relied upon paragraph 4 of the said decision which reads thus :- "4. Under Section 197(1), Cr.P.C. when a public servant not removable from his office save by or with the sanction of the government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the government. The section extends immunity from irresponsible, frivolous and vexatious prosecution. The privilege of immunity from prosecution without sanction extends only when the accused is a public servant of the kind mentioned therein. He must be a public servant as defined in Section 21 of the Indian Penal Code and not removable from his office save by or with the sanction of the State Government or : 8 : the Central Government as the case may be. The offence must also be one committed by the accused while acting or purporting to act in the discharge of his official duty." 6. The aforesaid decision will not help the petitioners. The Division Bench of this Court in the case of Shri Asoke Basak and Another (supra) dealt with a case where the petitioners were officers of Maharashtra State Electricity Board who could have been removed only by the State Government. It must be noted here that in the case of Laxmansingh Himatsingh Vaghela (supra), the Apex Court has not made a departure from the view taken earlier in the case of Mohd. Hadi Raji (supra). 7. In the circumstances, what is held by the Division Bench in paragraph 42 of the said decision of the Apex Court in the case of Shri Asoke Basak is squarely applied to the case of the petitioner. Hence, it cannot be accepted that the second to fourth petitioners are entitled to protection under section 197 of the said Code. There is no merit in the petition and the same is accordingly rejected. It is however, made clear that all other contentions of the petitioners on : 9 : merits of the complaint are expressly kept open. (A.S.Oka,J)