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K. CH. PRASAD
_v._
SMT. J.VANALATHA DEVI AND ORS.
FEBRUARY 10, 1987
[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._
_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
47 I of the Indian Penal Code, the Metropolitan Magistrate summoned
the appellant and thereafter rejected his objection abont the maintainability 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
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, therefore, s. 197 will be attracted and (ii) that although the competent authority who can remove the appellant from service is not the Government,
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,
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
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## _)_
H In the instant case, i.t is not disputed that the appellant is not
216
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__.).,_
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
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
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218 SUPREME COURT REPORTS (1987] 2 S.C.R.
tion as the banks are nationalised the appellant will fall within the
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 empowered under the regulations and these regulations have been framed
with the sanction of the Government and under these circumstances
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
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 employed, 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 employed, 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.
###### )..
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(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
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
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
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
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 Government. 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
authority who can remove the appellant from service derives his power
under regulations and these regulations ultimately derive their authority 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
Government. Under these circumstances on plain reading of Section
197 the view taken by the Courts below could not be said to be erroneous. We therefore see no reason to entertain this appeal. It is therefore
dismissed.
A.P.J. Appeal dismissed.
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