Judgment:
S.B. Sinha, J.
1. These two applications involving common questions of fact and law were heard together and are being disposed of by this common judgment.
2. The petitioner, in both these cases, is the Chariman-cum-Managing Director the Bharat Cooking Coal Limited (BCCL). He was prosecuted for alleged commission of an offence under Section 29 of the Industrial Disputes Act, 1947. Admittedly, prior to initiation of the aforementioned prosecution against the petitioner, sanction in terms of Section 38 of the Industrial Disputes Act, 1947 had been obtained.
3. The short question when arises for consideration in these application is as to whether order taking cognizance as against the petitioner could have been passed without obtaining sanction in terms of Section 197 of the Code of Criminal Procedure,
4. Mr. Banerjee, learned Counsel, appearing on behalf of the petitioner, submitted that as the petitioner was appointed by the President of India, he being removable by the Central Government, no order taking cognizance could have been passed against him without obtaining sanction under Section 197 of the Code of Criminal Procedure. Learned Counsel in support of his aforementioned contention relied upon decision of the learned Single Judge in the case of T.N.Raina v. State reported in 1990 Eastern Cr. Cases page 486.
5. Mr.A.K. Trivedi, learned Additional Standing Counsel, Central Government on the other hand, sumbitted that in the facts and circumstances of the case, sanction under the provisions of Section 197, Cr. P.C. was not required. The learned counsel in support of his contention has relied upon the decision of this Court in State v. B.L. Ohri and Ors., AIR 1967 Pat.441.
Section 197 of the Code of Criminal Procedure, 73 reads thus:
' 197. Prosecution of Judges and public servants. - (1) 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 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 -
(a) 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 the Union, of the Central Government;
(b) in the case of 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, of 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 Armed Forces charged with the maintenance of public order as may be specified therein wherever they may be serving and thereupon the provisions of that subsection will apply as if for the expression 'Central Government' occurring therein, the expressions '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 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 beheld.'
6. From a bare perusal of the afore-mentioned provision, it would appear that the said provision was enacted for the purpose of protecting a public servant who comes within the purview thereof.
7. Section 197, Cr.P.C. ex facie applies to a person who is or was a Judge or a Magistrate or a public servant, not removable from his office save by or with the sanction of the Government; if such an offence has been committed while acting or purporting to act in the discharge of his official duty, such sanction has to be obtained in terms of Clause (a) of Sub-section (1) of Section 197 of the Code of Criminal Procedure, as quoted hereinabove.
8. It is not in dispute that the petitioner is the Chairman-cum-Managing Director, Bharat Cooking Coal Limited, a Government Company within the meaning of Section 617 of the Indian Companies Act. Such a Government Company is merely a 'State' within the meaning of Article 12 of the Constitution of India, i.e., only for the purpose of Parts III and IV thereof.
9. The petitioner is evidently not an employee of the Central Government and thus he does not hold a civil post within the meaning of Part XIV of the Constitution of India. The petitioner's services are thus not protected under Article 311 of the Constitution of India.
10. It is now well-known that a Government Company, like Bharat Cooking Coal Limited, has been held to be an agency or an instrumentality of the State for the purpose of Article 12 of the Constitution. However, in the case of Ramana v. LA. Authority of India and Ors., (1979-II-LLJ 217) the Supreme Court has clearly laid down the law to me effect that agency or instrumentality' of the 'State' does not mean that a relationship of principal and agent by and between the State Government and the said authority has come into being, but actions of such authority would merely be State action only for the purpose of Parts III and IV of the Constitution of India. The petitioner is. therefore, neither the holder of a civil post, nor is an employee of the Union of India.
11. Section 197, Cr. P.C., as noticed herein before, provides for obtaining sanction from the Central Government if he is employed in connection with the affairs of the Union. Bharat Cooking Coal Limited is a juristic person, it being a company registered and incorporated under the Indian Companies Act and thus is liable to sue and be used in its own name.
12.The words 'employed in connection with the affairs of the Union used in Section 197 Cr. P.C. are of great significance. The said words, in my opinion, do not bring within its fold any person who is an officer of the Central Undertaking. This aspect of the matter has been fully considered by a learned Single Judge of this Court in State v. B.L. Ohri wherein it was inter alia, held that the sanction of the Central Government is necessary only when the person accused of an offence, at the time of the commission of the offence, is employed in connection with the affairs of the Union. It was held that if the accused persons at the time of the commission of the alleged offence were employed in connection with the affiars of the National Coal Development Corporation and not of Union of India, no sanction of Central Government is necessary for their prosecution.
13. In this view of the matter, there cannot be any doubt that the petitioner being not employed in connection with the affairs of the Union, no previous sanction in terms of Section 197 of the Code of Criminal Procedure was required before prosecution could be launched as against the petitioner under Section 29 of the Industrial Disputes Act, 1947. In this connection, it may be also mentioned that even a person who is removable by only an officer of the State or even by the Railway Board, no sanction for prosecuting them arise. Further, sanction is necessary if prosecution is to be launched for commission of an act lying within the scope of official duty. In T.N. Raina v. State, (supra), the learned Single Judge did not consider this aspect of the matter, nor his attention was drawn to the decision of this Court in the case of State v. B.L. Ohri (supra). As this case was decided without considering the earlier decision of this Court, the same must be held to have been rendered per incuriam. It is now well-known that a point not argued before the Court does not create any binding precedent with regard thereto. Reference in this connection may be made to the case of Central Coal fields Limited v. State of Bihar reported in 1993(1) PLJR 617.
14. For the reasons afore-mentioned, in my opinion, no case has been made out for exercising the jurisdiction under Section 482 of the Code of Criminal Procedure, 1973. The applications are, therefore, dismissed.