K. CH. PRASADversusSMT. J.VANALATHA DEVI AND ORS.

                               K. CH. PRASAD
A
                                        v.
                 SMT. J.VANALATHA DEVI AND ORS.

                             FEBRUARY 10, 1987

B                    [G.L. OZA AND M.M. DUTT, JJ]

          Criminal Procedure Code, 1973-s.197-Applicab/e only when
    public servant not removable from office save by or with sanction of          ~
    Government-Officer of nationalised bank-Though 'public servant'
    sanction not necessary.
c         Indian Penal Code, 1860-ss.120(b), 467 & 471-0fficer of
    nationalised bank-Prosecution for offences-Sanction under s.197
    Cr/. P. C.- Whether necessary.

           On a complaint being filed nnder s. 120(b) read with ss.467 and
D   47 I of the Indian Penal Code, the Metropolitan Magistrate summoned
    the appellant and thereafter rejected his objection abont the maintaina-
    bility of his prosecution for want of sanction under s. 197 of the Crimi-
    nal Procedure Code, holding that s.197 does not apply because the
    appellant is an officer who is removable from his office by a competent
    authority and no sanctirno of the Government is necessary. This view
E   was affirmed by the High Court.

          In the appeal to this Court, on behalf of the appellant it was
    contended: (i) that after the nationalisation of the Department of the
    appellant he will fall withitn the definition of pnblic servant and, there-
    fore, s. 197 will be attracted and (ii) that although the competent autho-
F   rity who can remove the appellant from service is not the Government,         ·-t·
    bnt it has been empowered under the regulations framed under the Act
    of Parliament with the approval and sanction of the Central Govern·            )
    ment and, therefore, the view taken by the Courts below is not correct.

          Dismissing the Appeal,
G
          HELD: It is clear that s. 197 of the Criminal Procedure Code is
    attracted only in cases where the public servant is such who is not
    removable from his offi<:e save by or with the sanction of the
    Government. [219BJ

H         In the instant case, i.t is not disputed that the appellant is not

                                       216
                    K. CH. PRASAD v. J. VANALATHA DEVI [OZA, J.J              217

         holding a post where he could not be removed from service except by or A
         with the sanction of the Government. In this view of the matter even if it
         is held that appellant is a public servant still provisions of s. 197 are not
         attracted at all. Therefore, the view taken by the Courts below could
         not be said to be erroneous. [219D I

              CRIMINAL APPELLATE JURISDICTION: Criminal Appeal B
         No. 829 of 1985.

              From the Judgment and order dated 28.11.1983 of the Andhra
""'r     Pradesh High Court in Crl. Revn. Case/Petn. No. 290 of 1983.

               R. Venkataramani and R. Ayyam Perumal for the Appellant.             C

               A. Sobba Rao for the Respondents.

              The Judgment of the Court was delivered by,

               OZA, J. This appeal has been filed by the appellant after D
         obtaining leave from this Court against an order passed by the High
         Court of Andhra Pradesh dated 28.11.1983 wherein the High Court
         rejected a Revision Petition filed by the appellant.

               Against the appellant a complaint was filed in the Court of
         Metropolitan Magistrate, Hyderabad under Section 120(b) read with E
         Sections 467 and 471 of the Indian Penal Code. After summons were
         issued the appellant raised objection about the maintainability of this
         prosecution for want of sanction under Section 197 of the Criminal
         Procedure Code. The objection was rejected by the Metropolitan
         Magistrate, Hyderabad and against the order of the Metropolitan
         Magistrate a Revision Petition was filed in the High Court which has F
         been rejected by the impugned order passed by the Andhra Pradesh
         High Court.

               The learned Metropolitan Magistrate held that Section 197 is
         attracted only when a public servant is not removable from his office
 _.).,   save by or with the sanction of the Government. The appellant is an G
         officer who is removable from his office by a competent authority and
         no sanction of the Government is necessary. Consequently Section 197
         in terms does not apply. This view was affirmed by the High Court of
         Andhra Pradesh.

              It was contended by the learned counsel that after nationalisa- H
     218                   SUPREME COURT REPORTS             (1987] 2 S.C.R.

     tion as the banks are nationalised the appellant will fall within the
A
     definition of public servant and therefore Section 197 will be attracted.
     It was also contended that although the appellant is removable by an
     authority which is not Government but the authority has been em-
     powered under the regulations and these regulations have been framed
     with the sanction of the Government and under these circumstances
B    therefore the view taken by the Courts below is not correct.

           Section 197 of the Code of Criminal Procedure reads:

           "When any person who is or was a Judge or Magistrate or a
           Public servant not removable from his office save by or with the
           sanction of the Governrnent is accused of any offence alleged to
c          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-

           (a) in the case of a person who is employed or, as the case may
D          be, was at the time of commission of the alleged offence emp-
           loyed, in connection with the affairs of the Union, of the Central
           Government;

           (b) in the case of a person who is employed or, as the case may
                                                                                 )..
           be, was at the time of commission of the alleged offence emp-
           loyed, in connection with the affairs of a State, or the State
           Government.

           (2) No Court shall take cognizance of any offence alleged to
           have been committed by any member of the Armed Forces of the
           Union while acting or purporting to act in the discharge of his
           official duty, except with the previous sanction of the Central
           Government.

           (3) The State Government may, by notification, direct that the
           provisions of sub-section (2) shall apply to such class or category
           of the members of the Forces charged with the maintenance of
G          public order as may be specified therein, wherev~r thay may be
           serving, and ihereupon the provisions of that sub-section will
           apply as if for the expression "Central Government'" occurring
           therein the expression "State Government" were substituted.

           (4) The Central Government or the State Government as the
Ii         case may be, may determine the person by whom, the manner in
                    K. CH. PRASAD v. J. VANALATHA DEVI [OZA, J.]              219

               which, and the offence or offences for which, the prosecution of
                                                                                     A
               such Judge, Magistrate or public servant is to be conducted, and
               may specify the Court before which the trial is to be held."

               It is very clear from this provision that this Section is attracted
         only in cases where the public servant is such who is not removable
         from his office save by or with the sanction of the Government. It is       B
         not disputed that the appellant is not holding a post where he could not
         be removed from service except by or with the sanction of the Govern-
         ment. In this view of the matter even if it is held that appellant is a
         public servant still provisions of Section 197 are not attracted at all.

                It was contended by the learned counsel that the competent           c
         authority who can remove the appellant from service derives his power
         under regulations and these regulations ultimately derive their autho-
         rity from the Act of Parliament and therefore it was contended that the
         regulations are framed with the approval of the Central Government
         but it does not mean that the appellant cannot be removed from his
         service by anyone except the Government or with the sanction of the         D
         Government. Under these circumstances on plain reading of Section
         197 the view taken by the Courts below could not be said to be errone-
         ous. We therefore see no reason to entertain this appeal. It is therefore
         dismissed.

         A.P.J.                                                Appeal dismissed.




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