Case: M. Gopalakrishnan Vs. State by Addl. S.P. CBI, B.S. &amp; F.C., Bangalore

lieu of notice and the whole time Director, including the Managing Director shall also have the right to relinquish his office at any time before the expiry of the term specified under that sub-clause by giving to the Central Government notice of not less than three months in writing." 14. In the same manner, Section 8(4) reads:- "The Central Government may, if it is satisfied that it is expedient in the interests of the nationalized bank so to do, remove a whole time Director including the Managing Director from office." 15. The above provisions are relied on to say that appellant is a public servant removable only by the Central Government. 16. The above provisions as well as the notification relied on by the appellant would indicate as if he was appointed by the Central Government, thereby impliedly saying that he could be removed only by the Central Government. If this position is correct then the sanction contemplated under Section 197 of Code should come to the aid of the appellant and if there is no sanction, taking cognizance of the case may be against the provisions of the law. 17. The learned counsel for the respondent submitted that under the Banking Regulation Act, 1949 the Chairman of a Banking Company is appointed only by the Reserve Bank of India and the Reserve Bank of India alone is the competent authority to remove the Chairman and in this view though the appellant is described as a public servant he will not come within the phrasing contemplated under Section 197 of Code requiring sanction since the Central Government is not concerned for his removal. 18. Section 10(bb) of the Banking Regulation Act says: "Where the office of the Chairman of the Board of Directors appointed on a whole time basis or a Managing Director of a Banking Company is vacant, the Reserve Bank may, if it is of opinion that the continuation of such vacancy is likely to adversely affect the interests of the Banking Company, appoint a person eligible under sub-section (4) of Section 10-B to be so appointed to be the Chairman of the Board of Directors appointed on a whole time basis or a Managing Director of the Banking Company, he shall so long as the person so appointed is not a Director of such Banking Company, he shall so long as he holds the office of the Chairman of the Board of Directors appointed on a whole time basis or a Managing Director, be deemed to be a Director of the Banking Company." 19. Section 36(AA) empowers the Reserve Bank to remove Managerial and other persons from office including any Chairman and Director which reads as follows: "Where the Reserve Bank is satisfied that in the public interest or for preventing the affairs of a Banking Company being conducted in a manner detrimental to the interests of the depositors or for securing the proper management of any Banking Company, it is necessary so to do, the Reserve Bank may for reasons to be recorded in writing by order remove from office within effect from such date as may be specified in the order any Chairman, Director, Chief Executive Officer by whatever name called or other officer or employee of the Banking Company." 20. Banking Regulation Act, 1949 shall prevail over the Scheme which was formulated under Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. This Scheme cannot have the over riding effect against the Banking Regulation Act. In this view the appellant cannot claim that he is a public servant coming within the meaning of a ‘public servant not removable from his office, save by or with the sanction of the Government. In view of the specific provisions available for the removable of the Chairman under the Banking Regulation Act it is prima facie clear that the appellant will not come within the scope of Section 197 of Code. It was submitted by learned counsel for the respondent before the High Court the question of requirement of sanction for prosecution can be left open to be examined during the trial by giving an opportunity to the defence to prove the same. 21. Learned counsel for the respondent relied on a decision of this Court in P.K. Pradhan v. State of Sikkim (2001 SCC (Crl.) 1234) wherein it is observed as follows: "Question of requirement of sanction for prosecution could be raised at any time after cognizance of the offence is taken, may be even at the time of conclusion of trial or after conviction." 22. It is also observed that: "The claim of the accused that the act alleged was done reasonably and not in pretended course of his official duty can be examined during the trial by giving an opportunity to the defence to prove it. In such cases, the question of sanction can be left open to be decided in the main judgment after conclusion of trial." 23. On the basis of the above conclusions the claim of the accused that he should be discharged for want of sanction is not acceptable at present and the matter should be left open to be decided later on. 24. The High Court held that the question whether the appellant is removable from service by the Reserve Bank or the Central Government is really an academic interest because it is yet to be established that the impugned acts were done by the appellant in position of his official duty. 25.In Parkash Singh Badal v. State of Punjab (2007 (1) SCC 1 ) it was noted as follows: "The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence." 26.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Banking Regulation Act, 1949 shall prevail over the Scheme which was formulated under Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. This Scheme cannot have the over riding effect against the Banking Regulation Act. In this view the appellant cannot claim that he is a public servant coming within the meaning of a ‘public servant not removable from his office, save by or with the sanction of the Government. In view of the specific provisions available for the removable of the Chairman under the Banking Regulation Act it is prima facie clear that the appellant will not come within the scope of Section 197 of Code. It was submitted by learned counsel for the respondent before the High Court the question of requirement of sanction for prosecution can be left open to be examined during the trial by giving an opportunity to the defence to prove the same.d counsel for the respondent relied on a decision of this Court in P.K. Pradhan v. State of Sikkim (2001 SCC (Crl.) 1234)wherein it is observed asof requirement of sanction for prosecution could be raised at any time after cognizance of the offence is taken, may be even at the time of conclusion of trial or afteris also observedclaim of the accused that the act alleged was done reasonably and not in pretended course of his official duty can be examined during the trial by giving an opportunity to the defence to prove it. In such cases, the question of sanction can be left open to be decided in the main judgment after conclusion of trial.On the basis of the above conclusions the claim of the accused that he should be discharged for want of sanction is not acceptable at present and the matter should be left open to be decided later on.The High Court held that the question whether the appellant is removable from service by the Reserve Bank or the Central Government is really an academic interest because it is yet to be established that the impugned acts were done by the appellant in position of his official duty.n Parkash Singh Badal v. State of Punjab (2007 (1) SCC 1 ) it was noted asoffence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the