IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID
THURSDAY, THE 4TH DAY OF JULY 2013/13TH ASHADHA, 1935
Crl.Rev.Pet.No. 2229 of 2012 () --------------------------------
AGAINST THE ORDER IN CMP 2392/2011 of JUDICIAL FIRST CLASS MAGISTRATE-I, ALAPPUZHA DATED 11-10-2012
REVISION PETITIONER(S):
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SALIM BABU P.K AGED 45 YEARS S/O.POOKUNJU KANJIRATHIL VEEDU CHERAVALLY KAYAMKULAM VILLAGE 690 502
BY ADVS.SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR
COMPLAINANTS:
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1. THE DIRECTOR OF PROSECUTIONS HIGH COURT OF KERALA ERNAKULAM
2. R.PRADEEP
SREEPADAM PULLIKANAKKU P.O KAYAMKULAM 690502 (NOW WORKING AS SDE BSNL KAYAMKULAM
3. NEHAR BEGAM
DIVISIONAL ENGINEER BSNL ETTUMANOOR 686 631
4. MATHEW JACOB DGM(P&A) BSNL ALAPPUZHA 688011
5. G.MOHANDAS AREA MANAGER BSNL ALAPPUZHA 688011
6. NATARAJAN T
GENERAL MANAGER BSNL ALAPPUZHA 688011
R1 BY PUBLIC PROSECUTOR SRI.VIJU THOMAS. R2 TO 6 BY ADV. SRI.MATHEWS K.PHILIP,SC, BSNL
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
AL/-
## **HARUN-UL-RASHID, J. --------------------------CRL.R.P.No. 2229 of 2012 -------------------------Dated this the 4[th] day of July 2013.**
## **JUDGMENT**
The revision petitioner is the complainant before the court below. The court below by order dated 11.10.2012 in CMP No. 2392 of 2011 dismissed the complaint under section 203 of the Cr.P.C finding that the complainant has not made out sufficient ground for proceeding against the accused. Parties hereinafter are referred to as arrayed in the CMP No. 2392/11.
2. In the complaint filed under section 190 of the Cr.P.C against the five officials of the Bharat Sanchar Nigam Limited (BSNL) it is alleged that the accused hatched a criminal conspiracy and forged a document dated 18.6.2009 in the nature of a 'making over particulars'. It was alleged that such document was not prepared on the said date and that it is a fabricated document prepared as an afterthought. It is also alleged that the accused persons forged the attendance register maintained by the Department. It was alleged that the accused persons forged a false absentee register dated 16.7.2009 excluding the name of the complainant with the malafide intention of blocking the pay and allowance of the complainant for the month of July 2009. The specific averments in para 3 of the complaint it is _interalia_ stated that the accused persons forged false absentee register dated 16.7.2009
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excluding the name of the complainant with a malafide intention to block the pay and allowances of the complainant for the month of July 2009.
3. In paragraph 4 it is _interalia_ stated that the accused persons committed criminal conspiracy and forged a document as if a 'making over particulars' statement dated 18.6.2009 where as no such document was neither served to the complainant nor it was prepared on the said date. It is only a fabricated document which was prepared later only as a result of an afterthought deliberation and conspiracy.
4. In paragraph 5 of the complaint it is alleged that the accused persons committed criminal conspiracy to conceal their misdeeds and to deny the legitimate entitlement to the complainant. Due to the said acts of the accused, the complainant has not only suffered loss, damages and injury and also suffered humiliation, pain and suffering. It is pleaded that the acts of the accused persons constitute the offence punishable under sections 464, 465, 468, 471, 120 B and 34 of IPC and liable to be prosecuted and punished for the same. It is also stated that forgery, fabrication of false evidence and criminal conspiracy are not part of the official acts of the accused.
5. The court below stated two reasons for dismissing the complaint under section 203 of the Cr.P.C. The first reason is that the dispute is a departmental dispute and a service matter and the complainant admittedly obtained redressal from the Tribunal, Ernakulam,
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_primafacie_ , there is no sufficient ground for proceeding. Secondly, the court cannot take cognizance of the offences alleged against the accused without the sanction of the Government as per the mandate of Section 197 of the Code.
6. It is submitted by the counsel for the revision petitioner that both reasons cannot stand in the facts and circumstance of the case. The criminal complaint was filed before the court below alleging commission of offences punishable under sections 464, 465, 468, 471 120 B and 34 of IPC. The allegation is that the accused has committed forgery and fabrication of false evidence and criminal conspiracy. It is seen that the merits of the complaint has not been examined by the learned Magistrate as to whether the averments in the complaint constitute the offence punishable under sections 464, 465, 468, 471, 120 B and 34 of IPC. One of the reasons for dismissal of the complaint is that the dispute is a departmental dispute and a service matter and the relief sought for in this case is connected with a departmental dispute. The allegation is that the accused committed the acts punishable under different sections of IPC. In such circumstance, the court below should have examined _primafacie_ whether there is sufficient grounds for proceeding with the complaint. But the court below failed to examine whether there is sufficient ground for proceeding.
7. Other reasons stated is that cognizance cannot be taken of the offences alleged against the accused without the sanction of the
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government as per the mandate of Section 197 of the Cr.P.C. Learned counsel for the appellant placed reliance on **Reetha Anto and Others**
**v. Romeo Jacob and Another** reported in ( **2007 (3) KHC 791),** it was held that “merely because BSNL which is a company is, after its formation in the year 2000, discharging the functions which were hitherto discharged by the Department of Telecommunication, it cannot be said that BSNL is a Government Department. Similarly, merely because the petitioners/accused were on deputation to BSNL it does not mean that their umbilical chord with the Telecommunication Department has not been snapped so far as their services in the BSNL is concerned. They may be “public servants” within the meaning of Section 21 of the IPC. But that is not enough. They should also be, at the time of commission of the alleged offence, employed in connection with the affairs of the Union. When at the time of commission of the alleged offence the petitioners were employed with the BSNL and not with the Department of Telecommunication it cannot be said that the petitioners were employed in connection with the affairs of the Union. Even if the Central Government were to have all pervasive control over the BSNL which may thereby answer the description of “State” within the meaning of Article 12 of the Constitution of India that is not enough to hold that employees of BSNL are employed in connection with the affairs of the State within the meaning of Section 197 Cr.P.C”.
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In the facts and circumstance noticed above, this Court is of the view that the matter requires reconsideration. In the result, the impugned order passed by the court below in CMP No. 2392/11 is set aside. The case is remanded. The court below shall consider and dispose of the matter afresh and pass orders in accordance with law.
Sd/-
**HARUN-UL-RASHID, Judge.**
al/-
P.A. To Judge
True copy
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## **Reetha Anto and Others v. Romeo Jacob and Another** reported in **2007 (3) KHC 791**
Merely because BSNL which is a company is, after its formation in the year 2000, discharging the functions which were hitherto discharged by the Department of Telecommunication, it cannot be said that BSNL is a Government Department. Similarly, merely because the petitioners/accused were on deputation to BSNL it does not mean that their umbilical chord with the Telecommunication
Crl.R.P.2229/2012
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Department has not been snapped so far as their services in the BSNL is concerned. They may be “public servants” within the meaning of Section 21 of the IPC. But that is not enough. They should also be, at the time of commission of the alleged offence, employed in connection with the affairs of the Union. When at the time of commission of the alleged offence the petitioners were employed with the BSNL and not with the Department of Telecommunication it cannot be said that the petitioners were employed in connection with the affairs of the Union. Even if the Central Government were to have all pervasive control over the BSNL which may thereby answer the description of “State” within the meaning of Article 12 of the Constitution of India that is not enough to hold that employees of BSNL are employed in connection with the affairs of the State within the meaning of Section 197 Cr.P.C.
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