J.S. Bindra and anr. Vs. C.B.i.

Decided On : Aug-18-2004

Court : Punjab and Haryana

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]
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			'acts' => '<a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a> - Sections 2 and 19; <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> - Sections 617',
			'appealno' => 'Criminal Misc. No. 43348-M of 2001',
			'appellant' => 'J.S. Bindra and anr.',
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			'casename' => 'J.S. Bindra and anr. Vs. C.B.i.',
			'casenote' => ' - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana -  Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property  in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab.  Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas  Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920.
HINDU SUCCESSION ACT,1956[C.A.No.30/1956] --  Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ]  Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act,  she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen  for purposes of assessment of estate duty. In Pritam  Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of  property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. -  The legislative object behind the Act has been well explained by the Hon'ble Supreme Court in State of Madhya Pradesh v. In order to curb effectively bribery and corruption not only In Government establishments and departments but also in other semi government authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of 'public servant' has been given in Clause (c) of Section 2 of the 1988 Act. Similarly, when the paid-up share capital held by the Government in a Company is 51% or above, the Government would not only have 'control' over its management as well as affairs but the Company, would also acquire the status of a 'government company' under Section 617 of the Companies Act, 1956. However, from the facts of this case, the intention of the Government to withdraw itself from the 'management' and not to intermeddle in the affairs of the Company is writ large as it was the Government only who transferred 74% of its shares in the Company to the private sector. Further, the petitioners have failed to place on record any material whatsoever to show that the Government has provided the 'financial aid' of any kind to the Company except the retention of 26% shares. 18. On the plain understanding and the context in which it has been used, the word 'aided',is synonymous to 'financial assistance'.The financial aid to a 'body' can be given for various reasons like its functional activities, the payment of salary to the staff, purchase of raw-material and /or other infrastructural facilities, installation of industrial unit and/or providing transportation etc.',
			'caseanalysis' => null,
			'casesref' => 'S. Komaraiah v. State;',
			'citingcases' => '(a) xxx          xxx      xx;(iv) to (vii) xxx      xxx         xxx;(x) to (xii) xxx      xxx          xxx',
			'counselplain' => ' R.S. Cheema, Sr. Counsel and; Pawan Girdhar, Adv.',
			'counseldef' => ' Rajan Gupta, Adv.',
			'court' => 'Punjab and Haryana',
			'court_type' => 'HC',
			'decidedon' => '2004-08-18',
			'deposition' => 'Petition dismissed',
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			'judge' => ' Suryakant, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Suryakant, J.</p><p style="text-align: justify;">1. In this petition under Section 482 of the Code of Criminal Procedure, 1973, the petitioners have sought quashing/setting aside of the order dated Oct. 9, 2001 (Annexure P-3) passed by the Special Judge, C.B.I.. Chandigarh, whereby their application to discharge them in case RC No. 1-2000/SPE-CHD under Section 7, 13(2) of the <a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a> (for short, the 1988 Act) read with Section 120B, of the Indian Penal Code for want of previous sanction for prosecution, has been dismissed.</p><p style="text-align: justify;">2. The core question which has arisen for consideration is as to whether prosecution of the petitioners under the aforementioned provisions of the Penal Laws is liable to fall flat due to absence of previous sanction for their prosecution under Section 19 of the Act, 1988 Act?</p><p style="text-align: justify;">3. The facts relevant to answer the aforesaid issue are that petitioner No. 1 (J.S. Bindra) and petitioner No. 2 (D.B. Malhotra) were working as General Manager and Sales Manager respectively in Messers Modern Food Industries (India) Ltd. (hereinafter referred to as the Company) at the relevant time. The Company, till Feb. 1, 2000 was a 'Government company' under Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>. The Company's 74% shares, however, were transferred in favour of Messers Hindustan Lever Limited, also a Company incorporated under the Companies Act, with effect from 1st Feb, 2000 whereas the remaining 26% share capital continued to be retained by the Government of India. As per the allegations contained in the F.I.R. dated January 19, 2000, the petitioners were caught red handed by the C.B.I, while demanding and accepting a bribe of Rs. 25,000/- at Hotel Metro, Sector 35. Chandigarh, on January 19, 2000 from the complainant, namely, Pawan Kumar son of Shri Ram Gopal, resident of House No. 76, Ward No. 18, Kurali (Punjab). After the investigation, charge-sheet was filed against the petitioners in the Court of Special Judge, C.B.I., Chandigarh, under Section 7, 13(l)(d), 13(2) of the 1988 Act read with Section 120B of the Indian Penal Code on Feb. 10, 2001. The petitioners thereafter moved an application on July 10, 2001 for their discharge from the case on the ground that no previous sanction for their prosecution in terms of Section 19 of the 1988 Act was obtained. The Special Judge, C.B.I., Chandigarh, however, did not find favour with the contention of the petitioners and dismissed the aforesaid application vide impugned order dated Oct. 9, 2001 (Annexure P-3) giving rise to the filing of this petition.</p><p style="text-align: justify;">4. According to the petitioners, at the time when the offence was allegedly committed by them, namely, January 19, 2000, they were 'public servants' and they continue to hold the aforementioned status irrespective of the change in Corporate status of the Company, namely, it having become a 'joint sector company' from that of the 'government company', therefore, previous sanction for their prosecution under Section 19 of the 1988 Act, was mandatorily required. In addition, they assert that there is no adverse alteration in the conditions of their service which are still governed by the 'M/s. Modern Food Industries (India) Limited Staff Regulations' which came into force with effect from 1-4-1990 and that their status as 'public servants' has also been legislatively protected by Section 2(c)(iii) of the 1988 Act.</p><p style="text-align: justify;">5. The C. B. I., in its reply, has averred that after the purchase of 74% of the shares of the company by Messers Hindustan Lever Limited and only 26% shares having remained with the Government with effect from February 1, 2000, the company is neither a 'Government undertaking' any longer, nor its employees are 'public servants' under Section 2(c)(iii), therefore, there is no legal necessity to seek previous sanction from the appropriate Government for their prosecution in terms of Section 19 of 1988 Act.</p><p style="text-align: justify;">6. It appears from the record that the C. B. I. had actually applied for sanction to prosecute the petitioners but the same was refused on the premise that the company was no longer wholly owned by the Government, therefore, the petitioners were not 'public servants' at the time when the charge sheet was required to be submitted and hence, previous sanction for their prosecution was not required.</p><p style="text-align: justify;">7. I have heard Shri R. S. Cheema, learned Senior counsel representing the petitioners and Shri Rajan Gupta, learned Standing counsel for the C. B. I. and have also perused the record.</p><p style="text-align: justify;">8. As pointed out at the out-set, the primary contention of the petitioners revolves around their contention that prior sanction was a sine qua non before launching any lawful prosecution against them and in the absence thereof they are liable to be dis-charged whereas the C. B. I. has denied the requirement of any such necessity in law.</p><p style="text-align: justify;">9. Before answering the issue raised in this Petition, a brief reference to some of the relevant provisions of the 1988 Act may be made. Section 2(b) defines the expression 'public duty' which means a duty in the discharge of which the State, the public or the community at large, has interest. Section 2(c) defines 'public servant' whereas Section 19 provides those circumstances under which the previous sanction of the appropriate Government is necessary for prosecution of a 'public servant' who is alleged to have committed an offence under Sections 7, 10, 11, 13 and 15 of the Act. Since Sections 2(b), (c) and 19 of the 1988 Act which have a direct bearing upon the controversy involved in this case, are reproduced in extenso :-</p><p style="text-align: justify;">'Section 2. : Definitions.- In this Act, unless the context otherwise requires,-</p><p style="text-align: justify;">(a) xxx xxx xx(b) 'public duty' means a duty in the discharge of which the State, the public or the community at large has an interest;</p><p style="text-align: justify;">Explanation.- In this clause 'State' includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>.</p><p style="text-align: justify;">(c) 'public servant' means -</p><p style="text-align: justify;">(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty,</p><p style="text-align: justify;">(ii) any person in the service or pay of a local authority;</p><p style="text-align: justify;">(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>;</p><p style="text-align: justify;">(iv) to (vii) xxx xxx xxx(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;</p><p style="text-align: justify;">(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>;</p><p style="text-align: justify;">(x) to (xii) xxx xxx xxxExplanation 1. Persons falling under any of the above Sub-clauses are public servants, whether appointed by the Government or not.</p><p style="text-align: justify;">Explanation 2.- Wherever the words 'public servant' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.</p><p style="text-align: justify;">Section 19</p><p style="text-align: justify;">Previous sanction necessary for prosecution.-</p><p style="text-align: justify;">(1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-</p><p style="text-align: justify;">(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;</p><p style="text-align: justify;">(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government:</p><p style="text-align: justify;">(c) in the case of any other person, of the authority competent to remove him from his office.</p><p style="text-align: justify;">(2) Where for any reason whatsover any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed, xx xxx xxx xxx xxx xxx'</p><p style="text-align: justify;">10. Shri R. S. Cheema, learned Senior Counsel contended that in view of Section 2(c)(iii), the petitioners are still the public servants' as their employer, namely, the company which was previously a Government company', is now a 'body' aided by the Government' as 26% of the share capital of the company is still retained by the Government.</p><p style="text-align: justify;">11. Shri Rajan Gupta, learned Standing counsel for the C. B. I., on the other hand contended that cognizance of the offence allegedly committed by the petitioners was taken by the C. B. I. because they were 'public servants' on January 19, 2000 in terms of Section 2(c)(iii) as their employer, the company was a 'Government Company' as defined under Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>. However, they have ceased to be 'public servants' after 1-2-2000 and, thus, no previous sanction under Section 19 of the 1988 Act is required.</p><p style="text-align: justify;">12. It stands settled by the Hon'ble Apex Court that in the case of a public servant who is alleged to have committed an offence punishable under the Act, no previous sanction is required if by the time the Court is called upon to take cognizance of the offence, he has ceased to be a 'public servant'. This view was taken by their Lordships in the case of Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411 : (1998 Cri LJ 4003) and has been reiterated in State of J and K v. Charan Dass Puri, (1999) 5 SCC 738, para 4 of which reads as under:-</p><p style="text-align: justify;">'4. This Court in Kalicharan Mahapatra v. State of Orissa (1998 Cri LJ 4003) has held that if a public servant has ceased to be a public servant at the time the Court is called upon to take cognizance of the offence, no previous sanction is necessary. This Court also referred to its previous decision in R. Balakrishna Pillai v. State of Kerala on which reliance has been placed by the High Court for taking the contrary view and has pointed out how that judgment can be of no relevance where the offence alleged is an offence punishable under the Prevention of Corruption Act, 1947. In para 13 of the judgment this Court has specifically dealt with this aspect. Thus, the law on this point is quite clear that in case of a public servant who is alleged to have committed an offence would be required if by the time the Court Is called upon to take cognizance of that offence he has ceased to be a public servant. The High Court was wrong in taking the contrary view. This appeal is, therefore, allowed, judgment and order passed by the High Court are set aside and the trial Court is directed to proceed further with the trial of the case.</p><p style="text-align: justify;">(Emphasis applied)</p><p style="text-align: justify;">13. Before adverting to the issue, a cursory look at the Statement of Objects and Reasons as contained in the Bill which culminated into passing of the 1988 Act, may also be made to find out that it envisages upon widening the scope of the definition of the expression 'public servant', incorporation of offences under Sections 161 to 165-A of the Indian Penal Code and enhancement of penalties provided for these offences etc. The legislative object behind the Act has been well explained by the Hon'ble Supreme Court in State of Madhya Pradesh v. Ram Singh, (2000) 5 SCC 88 wherein it was held that :- (Para 9 of Cri LJ)</p><p style="text-align: justify;">'The Act was intended to make effective 'provisions for the prevention of bribery and corruption rampant amongst the public servants. It is a social legislation intended to curb illegal activities of the public servants and it is designed to be liberally construed so as to advance its object.'</p><p style="text-align: justify;">14. Their Lordships of the Supreme Court in Government of Andhra Pradesh v. P. Venku Reddy, (2002) 7 SCC 631 : held that :-</p><p style="text-align: justify;">'11. Under the repealed Act of 1947 as provided in Section 2 of the 1988 Act, the definition of 'public servant' was restricted to 'public servants' as defined in Section 21 of the Indian Penal Code. In order to curb effectively bribery and corruption not only In Government establishments and departments but also in other semi government authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of 'public servant' has been given in Clause (c) of Section 2 of the 1988 Act.</p><p style="text-align: justify;">12. In construing the definition of 'public servant' in Clause (c) of Section 2 of the 1988 Act, the Court is required to adopt a purposive approach as would give effect to the intention of the legislature. In that view the Statement of objects and reasons contained in the Bill leading to the passing of the Act can be taken assistance of. It gives the background in which the legislation was enacted. The present Act, with a much wider definition of 'public servant', was brought in force to purify public administration. When the legislature has used such a comprehensive definition of 'public servant' to achieve the purpose of punishing and curbing growing corruption in Government and semi-Government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of 'public servant', therefore, deserves a wide construction.'</p><p style="text-align: justify;">15. There can, thus be no doubt that by adopting a purposive approach to give effect to the legislative intentions embodied in the 1988 Act, an expansive meaning has to be given to the expression, public servant' as contained in Section 2(c) thereof so as to make it effective in prevention of corruption rampant amongst the public servants and to curb their illegal activities. However, the object of the Act cannot be allowed to be hampered directly or indirectly by assuming that a 'public servant' as defined under Section 2(c) of the Act shall ipso-facto be a 'public servant' for the purpose of Section 19 also. The very fact that for the purpose of previous sanction under Section 19 of the 1988 Act, the accused person should be a 'public servant' even at the time when the Court takes cognizance of the alleged offence committed by him implies a restrictive and conservative meaning to this provision and its non-compliance can be successfully defended on the plea that such accused person has ceased to be a 'public servant.' It cannot be over-looked that the only object of Section 19 is to provide a limited protection against malicious and vexatious prosecution of a 'public servant' who might be harassed and humiliated by some unscrupulous person through false, engineered and/or frivolous complaint.</p><p style="text-align: justify;">16. Keeping these principles in mind, the status of the petitioners as on February 10, 2001 when the charge-sheet was filed against them, is required to be determined in terms of Section 2(c)(iii) of the 1988 Act.</p><p style="text-align: justify;">17. In my view, the words 'control' and 'aid' as mentioned in the first part of Sub-Clause (iii) of Clause (c) of Section 2 are quite material. The legislature has used both the words, namely, 'control' and 'aided', therefore, the expression 'aided' definitely carries a meaning other than the word, 'control'. The shares in a Company are moveable property and are transferable by their owner only in the manner provided by the Articles of Association of such Company. Owning shares in a corporate body appears to have a direct bearing upon the 'control' over the management and affairs of such body. Majority of shares, if held by an individual or a group of individuals would put them in the 'control' of the body corporate. Similarly, when the paid-up share capital held by the Government in a Company is 51% or above, the Government would not only have 'control' over its management as well as affairs but the Company, would also acquire the status of a 'government company' under Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>. However, from the facts of this case, the intention of the Government to withdraw itself from the 'management' and not to intermeddle in the affairs of the Company is writ large as it was the Government only who transferred 74% of its shares in the Company to the private sector. The retention of some of the shares by the Government in the Company, thus, does not amount to giving any 'aid' by it to such Company as no estimable financial assistance is transacted to the accounts of the Company. It is not the case of the petitioners also that the Company has been authorized to sell-off the shares unilaterally which are a Government property and appropriate their proceeds for running its day-to-day affairs. Further, the petitioners have failed to place on record any material whatsoever to show that the Government has provided the 'financial aid' of any kind to the Company except the retention of 26% shares.</p><p style="text-align: justify;">18. On the plain understanding and the context in which it has been used, the word 'aided', is synonymous to 'financial assistance'. The financial aid to a 'body' can be given for various reasons like its functional activities, the payment of salary to the staff, purchase of raw-material and /or other infrastructural facilities, installation of industrial unit and/or providing transportation etc. when the Government provides financial aid to a body, it is a direct and tangible flow of cash to the accounts of the body from where it pays all and the sundry charges. I have, therefore, no hesitation in concluding that mere retention of 26% shares by the Government in the company, does not amount to an 'aid' given by it to the company. As a necessary corollary of this discussion, it is held that neither the company is a 'body aided by the Government', nor with effect from 1-2-2000 it continued to be a 'government company' as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> for the purposes of Section 2(c)(iii) of the 1988 Act. The obvious consequence is that the petitioners are no longer the 'public servants' with effect from February 1, 2000, and as such the question of seeking previous sanction for their prosecution in terms of Section 19 of the 1988 Act, does not arise.</p><p style="text-align: justify;">19. To be fair to Shri R. S. Cheema, learned senior counsel for the petitioners, he has placed reliance upon certain provisions of the 'Modern Food Industries (India) Limited Staff Regulations' which came into force with effect from 1-4-1990. In my view, prohibition in the service regulations against 'criticism of Government and the company' (Clause 3.6), against taking 'gifts' (Clause 3.9), bar against 'private trade or employment' (Clause 3.11) and 'requirement of disclosure of property statement by every employee of the company' (Clause 3.13), are not the conditions of service, imposition whereof clothes and employee with the status of a 'government employee' or an employee of the other Authorities of the Government. Even a private corporate sector can impose such Code of Conduct upon Its employees depending upon the terms and conditions of their employment. Further, the fact that no adverse alterations in the service conditions of the petitioners have been made after 1-2-2000, does not mean that the 'control' of the company for the purpose of their service conditions, is still in the hands of the 'Government'. It has no material bearing upon the fact that character of the 'employer' of the petitioners has undergone a major change, namely, from a 'Government company' to a 'joint public sector'.</p><p style="text-align: justify;">20. Shri Cheema, learned Senior Counsel has also placed reliance upon certain judgments including (i) State of Maharashtra v. Prabhakarrao (2002) 7 SCC 636: (ii) Government of Andhra Pradesh v. P. Venku Reddy, (2002) 7 SCC 631 : and (iii) a judgment of Andhra Pradesh High Court in S. Komaraiah v. State, rep. by Inspector, CIU ACB, Hyderabad, 2003 (4) Rec. Cri. R. 607, to contend that there is a sweeping change in the definition of 'public servant' by virtue of Section 2(c) of the new legislation, namely, the 1988 Act. There can be no quarrel with the proposition of law laid down in these judgments. However, the widened scope of the expression, 'public servant' cannot be allowed to assume a size larger than the Act itself thereby giving rise to such procedural technicalities which might defeat the legislative object as imbibed in the Act. In other words, an endeavour should be made to see that 'what has been brought by Section 2(c) within the four walls of the 1988 Act', be not tagged as a 'lost baggage' under Section 19 and rather is taken to its logical end.</p><p style="text-align: justify;">21. For the reasons afore-mentioned, I find no merit in this petition which is accordingly dismissed but with no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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	'EVENT' => array(
		(int) 0 => 'the 1988 Act',
		(int) 1 => 'the 1988 Act',
		(int) 2 => 'the 1988 Act''
	),
	'ORDINAL' => array(
		(int) 0 => 'first'
	),
	'QUANTITY' => array(
		(int) 0 => '1-2-2000'
	)
)
$desc = array(
	'Judgement' => array(
		'id' => '630381',
		'acts' => '<a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a> - Sections 2 and 19; <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> - Sections 617',
		'appealno' => 'Criminal Misc. No. 43348-M of 2001',
		'appellant' => 'J.S. Bindra and anr.',
		'authreffered' => '',
		'casename' => 'J.S. Bindra and anr. Vs. C.B.i.',
		'casenote' => ' - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana -  Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property  in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab.  Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas  Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920.
HINDU SUCCESSION ACT,1956[C.A.No.30/1956] --  Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ]  Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act,  she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen  for purposes of assessment of estate duty. In Pritam  Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of  property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. -  The legislative object behind the Act has been well explained by the Hon'ble Supreme Court in State of Madhya Pradesh v. In order to curb effectively bribery and corruption not only In Government establishments and departments but also in other semi government authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of 'public servant' has been given in Clause (c) of Section 2 of the 1988 Act. Similarly, when the paid-up share capital held by the Government in a Company is 51% or above, the Government would not only have 'control' over its management as well as affairs but the Company, would also acquire the status of a 'government company' under Section 617 of the Companies Act, 1956. However, from the facts of this case, the intention of the Government to withdraw itself from the 'management' and not to intermeddle in the affairs of the Company is writ large as it was the Government only who transferred 74% of its shares in the Company to the private sector. Further, the petitioners have failed to place on record any material whatsoever to show that the Government has provided the 'financial aid' of any kind to the Company except the retention of 26% shares. 18. On the plain understanding and the context in which it has been used, the word 'aided',is synonymous to 'financial assistance'.The financial aid to a 'body' can be given for various reasons like its functional activities, the payment of salary to the staff, purchase of raw-material and /or other infrastructural facilities, installation of industrial unit and/or providing transportation etc.',
		'caseanalysis' => null,
		'casesref' => 'S. Komaraiah v. State;',
		'citingcases' => '(a) xxx          xxx      xx;(iv) to (vii) xxx      xxx         xxx;(x) to (xii) xxx      xxx          xxx',
		'counselplain' => ' R.S. Cheema, Sr. Counsel and; Pawan Girdhar, Adv.',
		'counseldef' => ' Rajan Gupta, Adv.',
		'court' => 'Punjab and Haryana',
		'court_type' => 'HC',
		'decidedon' => '2004-08-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Suryakant, J.',
		'judgement' => 'ORDER<p style="text-align: justify;">Suryakant, J.</p><p style="text-align: justify;">1. In this petition under Section 482 of the Code of Criminal Procedure, 1973, the petitioners have sought quashing/setting aside of the order dated Oct. 9, 2001 (Annexure P-3) passed by the Special Judge, C.B.I.. Chandigarh, whereby their application to discharge them in case RC No. 1-2000/SPE-CHD under Section 7, 13(2) of the <a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a> (for short, the 1988 Act) read with Section 120B, of the Indian Penal Code for want of previous sanction for prosecution, has been dismissed.</p><p style="text-align: justify;">2. The core question which has arisen for consideration is as to whether prosecution of the petitioners under the aforementioned provisions of the Penal Laws is liable to fall flat due to absence of previous sanction for their prosecution under Section 19 of the Act, 1988 Act?</p><p style="text-align: justify;">3. The facts relevant to answer the aforesaid issue are that petitioner No. 1 (J.S. Bindra) and petitioner No. 2 (D.B. Malhotra) were working as General Manager and Sales Manager respectively in Messers Modern Food Industries (India) Ltd. (hereinafter referred to as the Company) at the relevant time. The Company, till Feb. 1, 2000 was a 'Government company' under Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>. The Company's 74% shares, however, were transferred in favour of Messers Hindustan Lever Limited, also a Company incorporated under the Companies Act, with effect from 1st Feb, 2000 whereas the remaining 26% share capital continued to be retained by the Government of India. As per the allegations contained in the F.I.R. dated January 19, 2000, the petitioners were caught red handed by the C.B.I, while demanding and accepting a bribe of Rs. 25,000/- at Hotel Metro, Sector 35. Chandigarh, on January 19, 2000 from the complainant, namely, Pawan Kumar son of Shri Ram Gopal, resident of House No. 76, Ward No. 18, Kurali (Punjab). After the investigation, charge-sheet was filed against the petitioners in the Court of Special Judge, C.B.I., Chandigarh, under Section 7, 13(l)(d), 13(2) of the 1988 Act read with Section 120B of the Indian Penal Code on Feb. 10, 2001. The petitioners thereafter moved an application on July 10, 2001 for their discharge from the case on the ground that no previous sanction for their prosecution in terms of Section 19 of the 1988 Act was obtained. The Special Judge, C.B.I., Chandigarh, however, did not find favour with the contention of the petitioners and dismissed the aforesaid application vide impugned order dated Oct. 9, 2001 (Annexure P-3) giving rise to the filing of this petition.</p><p style="text-align: justify;">4. According to the petitioners, at the time when the offence was allegedly committed by them, namely, January 19, 2000, they were 'public servants' and they continue to hold the aforementioned status irrespective of the change in Corporate status of the Company, namely, it having become a 'joint sector company' from that of the 'government company', therefore, previous sanction for their prosecution under Section 19 of the 1988 Act, was mandatorily required. In addition, they assert that there is no adverse alteration in the conditions of their service which are still governed by the 'M/s. Modern Food Industries (India) Limited Staff Regulations' which came into force with effect from 1-4-1990 and that their status as 'public servants' has also been legislatively protected by Section 2(c)(iii) of the 1988 Act.</p><p style="text-align: justify;">5. The C. B. I., in its reply, has averred that after the purchase of 74% of the shares of the company by Messers Hindustan Lever Limited and only 26% shares having remained with the Government with effect from February 1, 2000, the company is neither a 'Government undertaking' any longer, nor its employees are 'public servants' under Section 2(c)(iii), therefore, there is no legal necessity to seek previous sanction from the appropriate Government for their prosecution in terms of Section 19 of 1988 Act.</p><p style="text-align: justify;">6. It appears from the record that the C. B. I. had actually applied for sanction to prosecute the petitioners but the same was refused on the premise that the company was no longer wholly owned by the Government, therefore, the petitioners were not 'public servants' at the time when the charge sheet was required to be submitted and hence, previous sanction for their prosecution was not required.</p><p style="text-align: justify;">7. I have heard Shri R. S. Cheema, learned Senior counsel representing the petitioners and Shri Rajan Gupta, learned Standing counsel for the C. B. I. and have also perused the record.</p><p style="text-align: justify;">8. As pointed out at the out-set, the primary contention of the petitioners revolves around their contention that prior sanction was a sine qua non before launching any lawful prosecution against them and in the absence thereof they are liable to be dis-charged whereas the C. B. I. has denied the requirement of any such necessity in law.</p><p style="text-align: justify;">9. Before answering the issue raised in this Petition, a brief reference to some of the relevant provisions of the 1988 Act may be made. Section 2(b) defines the expression 'public duty' which means a duty in the discharge of which the State, the public or the community at large, has interest. Section 2(c) defines 'public servant' whereas Section 19 provides those circumstances under which the previous sanction of the appropriate Government is necessary for prosecution of a 'public servant' who is alleged to have committed an offence under Sections 7, 10, 11, 13 and 15 of the Act. Since Sections 2(b), (c) and 19 of the 1988 Act which have a direct bearing upon the controversy involved in this case, are reproduced in extenso :-</p><p style="text-align: justify;">'Section 2. : Definitions.- In this Act, unless the context otherwise requires,-</p><p style="text-align: justify;">(a) xxx xxx xx(b) 'public duty' means a duty in the discharge of which the State, the public or the community at large has an interest;</p><p style="text-align: justify;">Explanation.- In this clause 'State' includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>.</p><p style="text-align: justify;">(c) 'public servant' means -</p><p style="text-align: justify;">(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty,</p><p style="text-align: justify;">(ii) any person in the service or pay of a local authority;</p><p style="text-align: justify;">(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>;</p><p style="text-align: justify;">(iv) to (vii) xxx xxx xxx(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;</p><p style="text-align: justify;">(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>;</p><p style="text-align: justify;">(x) to (xii) xxx xxx xxxExplanation 1. Persons falling under any of the above Sub-clauses are public servants, whether appointed by the Government or not.</p><p style="text-align: justify;">Explanation 2.- Wherever the words 'public servant' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.</p><p style="text-align: justify;">Section 19</p><p style="text-align: justify;">Previous sanction necessary for prosecution.-</p><p style="text-align: justify;">(1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-</p><p style="text-align: justify;">(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;</p><p style="text-align: justify;">(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government:</p><p style="text-align: justify;">(c) in the case of any other person, of the authority competent to remove him from his office.</p><p style="text-align: justify;">(2) Where for any reason whatsover any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed, xx xxx xxx xxx xxx xxx'</p><p style="text-align: justify;">10. Shri R. S. Cheema, learned Senior Counsel contended that in view of Section 2(c)(iii), the petitioners are still the public servants' as their employer, namely, the company which was previously a Government company', is now a 'body' aided by the Government' as 26% of the share capital of the company is still retained by the Government.</p><p style="text-align: justify;">11. Shri Rajan Gupta, learned Standing counsel for the C. B. I., on the other hand contended that cognizance of the offence allegedly committed by the petitioners was taken by the C. B. I. because they were 'public servants' on January 19, 2000 in terms of Section 2(c)(iii) as their employer, the company was a 'Government Company' as defined under Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>. However, they have ceased to be 'public servants' after 1-2-2000 and, thus, no previous sanction under Section 19 of the 1988 Act is required.</p><p style="text-align: justify;">12. It stands settled by the Hon'ble Apex Court that in the case of a public servant who is alleged to have committed an offence punishable under the Act, no previous sanction is required if by the time the Court is called upon to take cognizance of the offence, he has ceased to be a 'public servant'. This view was taken by their Lordships in the case of Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411 : (1998 Cri LJ 4003) and has been reiterated in State of J and K v. Charan Dass Puri, (1999) 5 SCC 738, para 4 of which reads as under:-</p><p style="text-align: justify;">'4. This Court in Kalicharan Mahapatra v. State of Orissa (1998 Cri LJ 4003) has held that if a public servant has ceased to be a public servant at the time the Court is called upon to take cognizance of the offence, no previous sanction is necessary. This Court also referred to its previous decision in R. Balakrishna Pillai v. State of Kerala on which reliance has been placed by the High Court for taking the contrary view and has pointed out how that judgment can be of no relevance where the offence alleged is an offence punishable under the Prevention of Corruption Act, 1947. In para 13 of the judgment this Court has specifically dealt with this aspect. Thus, the law on this point is quite clear that in case of a public servant who is alleged to have committed an offence would be required if by the time the Court Is called upon to take cognizance of that offence he has ceased to be a public servant. The High Court was wrong in taking the contrary view. This appeal is, therefore, allowed, judgment and order passed by the High Court are set aside and the trial Court is directed to proceed further with the trial of the case.</p><p style="text-align: justify;">(Emphasis applied)</p><p style="text-align: justify;">13. Before adverting to the issue, a cursory look at the Statement of Objects and Reasons as contained in the Bill which culminated into passing of the 1988 Act, may also be made to find out that it envisages upon widening the scope of the definition of the expression 'public servant', incorporation of offences under Sections 161 to 165-A of the Indian Penal Code and enhancement of penalties provided for these offences etc. The legislative object behind the Act has been well explained by the Hon'ble Supreme Court in State of Madhya Pradesh v. Ram Singh, (2000) 5 SCC 88 wherein it was held that :- (Para 9 of Cri LJ)</p><p style="text-align: justify;">'The Act was intended to make effective 'provisions for the prevention of bribery and corruption rampant amongst the public servants. It is a social legislation intended to curb illegal activities of the public servants and it is designed to be liberally construed so as to advance its object.'</p><p style="text-align: justify;">14. Their Lordships of the Supreme Court in Government of Andhra Pradesh v. P. Venku Reddy, (2002) 7 SCC 631 : held that :-</p><p style="text-align: justify;">'11. Under the repealed Act of 1947 as provided in Section 2 of the 1988 Act, the definition of 'public servant' was restricted to 'public servants' as defined in Section 21 of the Indian Penal Code. In order to curb effectively bribery and corruption not only In Government establishments and departments but also in other semi government authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of 'public servant' has been given in Clause (c) of Section 2 of the 1988 Act.</p><p style="text-align: justify;">12. In construing the definition of 'public servant' in Clause (c) of Section 2 of the 1988 Act, the Court is required to adopt a purposive approach as would give effect to the intention of the legislature. In that view the Statement of objects and reasons contained in the Bill leading to the passing of the Act can be taken assistance of. It gives the background in which the legislation was enacted. The present Act, with a much wider definition of 'public servant', was brought in force to purify public administration. When the legislature has used such a comprehensive definition of 'public servant' to achieve the purpose of punishing and curbing growing corruption in Government and semi-Government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of 'public servant', therefore, deserves a wide construction.'</p><p style="text-align: justify;">15. There can, thus be no doubt that by adopting a purposive approach to give effect to the legislative intentions embodied in the 1988 Act, an expansive meaning has to be given to the expression, public servant' as contained in Section 2(c) thereof so as to make it effective in prevention of corruption rampant amongst the public servants and to curb their illegal activities. However, the object of the Act cannot be allowed to be hampered directly or indirectly by assuming that a 'public servant' as defined under Section 2(c) of the Act shall ipso-facto be a 'public servant' for the purpose of Section 19 also. The very fact that for the purpose of previous sanction under Section 19 of the 1988 Act, the accused person should be a 'public servant' even at the time when the Court takes cognizance of the alleged offence committed by him implies a restrictive and conservative meaning to this provision and its non-compliance can be successfully defended on the plea that such accused person has ceased to be a 'public servant.' It cannot be over-looked that the only object of Section 19 is to provide a limited protection against malicious and vexatious prosecution of a 'public servant' who might be harassed and humiliated by some unscrupulous person through false, engineered and/or frivolous complaint.</p><p style="text-align: justify;">16. Keeping these principles in mind, the status of the petitioners as on February 10, 2001 when the charge-sheet was filed against them, is required to be determined in terms of Section 2(c)(iii) of the 1988 Act.</p><p style="text-align: justify;">17. In my view, the words 'control' and 'aid' as mentioned in the first part of Sub-Clause (iii) of Clause (c) of Section 2 are quite material. The legislature has used both the words, namely, 'control' and 'aided', therefore, the expression 'aided' definitely carries a meaning other than the word, 'control'. The shares in a Company are moveable property and are transferable by their owner only in the manner provided by the Articles of Association of such Company. Owning shares in a corporate body appears to have a direct bearing upon the 'control' over the management and affairs of such body. Majority of shares, if held by an individual or a group of individuals would put them in the 'control' of the body corporate. Similarly, when the paid-up share capital held by the Government in a Company is 51% or above, the Government would not only have 'control' over its management as well as affairs but the Company, would also acquire the status of a 'government company' under Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>. However, from the facts of this case, the intention of the Government to withdraw itself from the 'management' and not to intermeddle in the affairs of the Company is writ large as it was the Government only who transferred 74% of its shares in the Company to the private sector. The retention of some of the shares by the Government in the Company, thus, does not amount to giving any 'aid' by it to such Company as no estimable financial assistance is transacted to the accounts of the Company. It is not the case of the petitioners also that the Company has been authorized to sell-off the shares unilaterally which are a Government property and appropriate their proceeds for running its day-to-day affairs. Further, the petitioners have failed to place on record any material whatsoever to show that the Government has provided the 'financial aid' of any kind to the Company except the retention of 26% shares.</p><p style="text-align: justify;">18. On the plain understanding and the context in which it has been used, the word 'aided', is synonymous to 'financial assistance'. The financial aid to a 'body' can be given for various reasons like its functional activities, the payment of salary to the staff, purchase of raw-material and /or other infrastructural facilities, installation of industrial unit and/or providing transportation etc. when the Government provides financial aid to a body, it is a direct and tangible flow of cash to the accounts of the body from where it pays all and the sundry charges. I have, therefore, no hesitation in concluding that mere retention of 26% shares by the Government in the company, does not amount to an 'aid' given by it to the company. As a necessary corollary of this discussion, it is held that neither the company is a 'body aided by the Government', nor with effect from 1-2-2000 it continued to be a 'government company' as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> for the purposes of Section 2(c)(iii) of the 1988 Act. The obvious consequence is that the petitioners are no longer the 'public servants' with effect from February 1, 2000, and as such the question of seeking previous sanction for their prosecution in terms of Section 19 of the 1988 Act, does not arise.</p><p style="text-align: justify;">19. To be fair to Shri R. S. Cheema, learned senior counsel for the petitioners, he has placed reliance upon certain provisions of the 'Modern Food Industries (India) Limited Staff Regulations' which came into force with effect from 1-4-1990. In my view, prohibition in the service regulations against 'criticism of Government and the company' (Clause 3.6), against taking 'gifts' (Clause 3.9), bar against 'private trade or employment' (Clause 3.11) and 'requirement of disclosure of property statement by every employee of the company' (Clause 3.13), are not the conditions of service, imposition whereof clothes and employee with the status of a 'government employee' or an employee of the other Authorities of the Government. Even a private corporate sector can impose such Code of Conduct upon Its employees depending upon the terms and conditions of their employment. Further, the fact that no adverse alterations in the service conditions of the petitioners have been made after 1-2-2000, does not mean that the 'control' of the company for the purpose of their service conditions, is still in the hands of the 'Government'. It has no material bearing upon the fact that character of the 'employer' of the petitioners has undergone a major change, namely, from a 'Government company' to a 'joint public sector'.</p><p style="text-align: justify;">20. Shri Cheema, learned Senior Counsel has also placed reliance upon certain judgments including (i) State of Maharashtra v. Prabhakarrao (2002) 7 SCC 636: (ii) Government of Andhra Pradesh v. P. Venku Reddy, (2002) 7 SCC 631 : and (iii) a judgment of Andhra Pradesh High Court in S. Komaraiah v. State, rep. by Inspector, CIU ACB, Hyderabad, 2003 (4) Rec. Cri. R. 607, to contend that there is a sweeping change in the definition of 'public servant' by virtue of Section 2(c) of the new legislation, namely, the 1988 Act. There can be no quarrel with the proposition of law laid down in these judgments. However, the widened scope of the expression, 'public servant' cannot be allowed to assume a size larger than the Act itself thereby giving rise to such procedural technicalities which might defeat the legislative object as imbibed in the Act. In other words, an endeavour should be made to see that 'what has been brought by Section 2(c) within the four walls of the 1988 Act', be not tagged as a 'lost baggage' under Section 19 and rather is taken to its logical end.</p><p style="text-align: justify;">21. For the reasons afore-mentioned, I find no merit in this petition which is accordingly dismissed but with no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'Judgement' => array(
			'id' => '630381',
			'acts' => '<a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a> - Sections 2 and 19; <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> - Sections 617',
			'appealno' => 'Criminal Misc. No. 43348-M of 2001',
			'appellant' => 'J.S. Bindra and anr.',
			'authreffered' => '',
			'casename' => 'J.S. Bindra and anr. Vs. C.B.i.',
			'casenote' => ' - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana -  Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property  in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab.  Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas  Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920.
HINDU SUCCESSION ACT,1956[C.A.No.30/1956] --  Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ]  Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act,  she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen  for purposes of assessment of estate duty. In Pritam  Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of  property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. -  The legislative object behind the Act has been well explained by the Hon'ble Supreme Court in State of Madhya Pradesh v. In order to curb effectively bribery and corruption not only In Government establishments and departments but also in other semi government authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of 'public servant' has been given in Clause (c) of Section 2 of the 1988 Act. Similarly, when the paid-up share capital held by the Government in a Company is 51% or above, the Government would not only have 'control' over its management as well as affairs but the Company, would also acquire the status of a 'government company' under Section 617 of the Companies Act, 1956. However, from the facts of this case, the intention of the Government to withdraw itself from the 'management' and not to intermeddle in the affairs of the Company is writ large as it was the Government only who transferred 74% of its shares in the Company to the private sector. Further, the petitioners have failed to place on record any material whatsoever to show that the Government has provided the 'financial aid' of any kind to the Company except the retention of 26% shares. 18. On the plain understanding and the context in which it has been used, the word 'aided',is synonymous to 'financial assistance'.The financial aid to a 'body' can be given for various reasons like its functional activities, the payment of salary to the staff, purchase of raw-material and /or other infrastructural facilities, installation of industrial unit and/or providing transportation etc.',
			'caseanalysis' => null,
			'casesref' => 'S. Komaraiah v. State;',
			'citingcases' => '(a) xxx          xxx      xx;(iv) to (vii) xxx      xxx         xxx;(x) to (xii) xxx      xxx          xxx',
			'counselplain' => ' R.S. Cheema, Sr. Counsel and; Pawan Girdhar, Adv.',
			'counseldef' => ' Rajan Gupta, Adv.',
			'court' => 'Punjab and Haryana',
			'court_type' => 'HC',
			'decidedon' => '2004-08-18',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' Suryakant, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">Suryakant, J.</p><p style="text-align: justify;">1. In this petition under Section 482 of the Code of Criminal Procedure, 1973, the petitioners have sought quashing/setting aside of the order dated Oct. 9, 2001 (Annexure P-3) passed by the Special Judge, C.B.I.. Chandigarh, whereby their application to discharge them in case RC No. 1-2000/SPE-CHD under Section 7, 13(2) of the <a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a> (for short, the 1988 Act) read with Section 120B, of the Indian Penal Code for want of previous sanction for prosecution, has been dismissed.</p><p style="text-align: justify;">2. The core question which has arisen for consideration is as to whether prosecution of the petitioners under the aforementioned provisions of the Penal Laws is liable to fall flat due to absence of previous sanction for their prosecution under Section 19 of the Act, 1988 Act?</p><p style="text-align: justify;">3. The facts relevant to answer the aforesaid issue are that petitioner No. 1 (J.S. Bindra) and petitioner No. 2 (D.B. Malhotra) were working as General Manager and Sales Manager respectively in Messers Modern Food Industries (India) Ltd. (hereinafter referred to as the Company) at the relevant time. The Company, till Feb. 1, 2000 was a 'Government company' under Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>. The Company's 74% shares, however, were transferred in favour of Messers Hindustan Lever Limited, also a Company incorporated under the Companies Act, with effect from 1st Feb, 2000 whereas the remaining 26% share capital continued to be retained by the Government of India. As per the allegations contained in the F.I.R. dated January 19, 2000, the petitioners were caught red handed by the C.B.I, while demanding and accepting a bribe of Rs. 25,000/- at Hotel Metro, Sector 35. Chandigarh, on January 19, 2000 from the complainant, namely, Pawan Kumar son of Shri Ram Gopal, resident of House No. 76, Ward No. 18, Kurali (Punjab). After the investigation, charge-sheet was filed against the petitioners in the Court of Special Judge, C.B.I., Chandigarh, under Section 7, 13(l)(d), 13(2) of the 1988 Act read with Section 120B of the Indian Penal Code on Feb. 10, 2001. The petitioners thereafter moved an application on July 10, 2001 for their discharge from the case on the ground that no previous sanction for their prosecution in terms of Section 19 of the 1988 Act was obtained. The Special Judge, C.B.I., Chandigarh, however, did not find favour with the contention of the petitioners and dismissed the aforesaid application vide impugned order dated Oct. 9, 2001 (Annexure P-3) giving rise to the filing of this petition.</p><p style="text-align: justify;">4. According to the petitioners, at the time when the offence was allegedly committed by them, namely, January 19, 2000, they were 'public servants' and they continue to hold the aforementioned status irrespective of the change in Corporate status of the Company, namely, it having become a 'joint sector company' from that of the 'government company', therefore, previous sanction for their prosecution under Section 19 of the 1988 Act, was mandatorily required. In addition, they assert that there is no adverse alteration in the conditions of their service which are still governed by the 'M/s. Modern Food Industries (India) Limited Staff Regulations' which came into force with effect from 1-4-1990 and that their status as 'public servants' has also been legislatively protected by Section 2(c)(iii) of the 1988 Act.</p><p style="text-align: justify;">5. The C. B. I., in its reply, has averred that after the purchase of 74% of the shares of the company by Messers Hindustan Lever Limited and only 26% shares having remained with the Government with effect from February 1, 2000, the company is neither a 'Government undertaking' any longer, nor its employees are 'public servants' under Section 2(c)(iii), therefore, there is no legal necessity to seek previous sanction from the appropriate Government for their prosecution in terms of Section 19 of 1988 Act.</p><p style="text-align: justify;">6. It appears from the record that the C. B. I. had actually applied for sanction to prosecute the petitioners but the same was refused on the premise that the company was no longer wholly owned by the Government, therefore, the petitioners were not 'public servants' at the time when the charge sheet was required to be submitted and hence, previous sanction for their prosecution was not required.</p><p style="text-align: justify;">7. I have heard Shri R. S. Cheema, learned Senior counsel representing the petitioners and Shri Rajan Gupta, learned Standing counsel for the C. B. I. and have also perused the record.</p><p style="text-align: justify;">8. As pointed out at the out-set, the primary contention of the petitioners revolves around their contention that prior sanction was a sine qua non before launching any lawful prosecution against them and in the absence thereof they are liable to be dis-charged whereas the C. B. I. has denied the requirement of any such necessity in law.</p><p style="text-align: justify;">9. Before answering the issue raised in this Petition, a brief reference to some of the relevant provisions of the 1988 Act may be made. Section 2(b) defines the expression 'public duty' which means a duty in the discharge of which the State, the public or the community at large, has interest. Section 2(c) defines 'public servant' whereas Section 19 provides those circumstances under which the previous sanction of the appropriate Government is necessary for prosecution of a 'public servant' who is alleged to have committed an offence under Sections 7, 10, 11, 13 and 15 of the Act. Since Sections 2(b), (c) and 19 of the 1988 Act which have a direct bearing upon the controversy involved in this case, are reproduced in extenso :-</p><p style="text-align: justify;">'Section 2. : Definitions.- In this Act, unless the context otherwise requires,-</p><p style="text-align: justify;">(a) xxx xxx xx(b) 'public duty' means a duty in the discharge of which the State, the public or the community at large has an interest;</p><p style="text-align: justify;">Explanation.- In this clause 'State' includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>.</p><p style="text-align: justify;">(c) 'public servant' means -</p><p style="text-align: justify;">(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty,</p><p style="text-align: justify;">(ii) any person in the service or pay of a local authority;</p><p style="text-align: justify;">(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>;</p><p style="text-align: justify;">(iv) to (vii) xxx xxx xxx(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;</p><p style="text-align: justify;">(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>;</p><p style="text-align: justify;">(x) to (xii) xxx xxx xxxExplanation 1. Persons falling under any of the above Sub-clauses are public servants, whether appointed by the Government or not.</p><p style="text-align: justify;">Explanation 2.- Wherever the words 'public servant' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.</p><p style="text-align: justify;">Section 19</p><p style="text-align: justify;">Previous sanction necessary for prosecution.-</p><p style="text-align: justify;">(1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-</p><p style="text-align: justify;">(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;</p><p style="text-align: justify;">(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government:</p><p style="text-align: justify;">(c) in the case of any other person, of the authority competent to remove him from his office.</p><p style="text-align: justify;">(2) Where for any reason whatsover any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed, xx xxx xxx xxx xxx xxx'</p><p style="text-align: justify;">10. Shri R. S. Cheema, learned Senior Counsel contended that in view of Section 2(c)(iii), the petitioners are still the public servants' as their employer, namely, the company which was previously a Government company', is now a 'body' aided by the Government' as 26% of the share capital of the company is still retained by the Government.</p><p style="text-align: justify;">11. Shri Rajan Gupta, learned Standing counsel for the C. B. I., on the other hand contended that cognizance of the offence allegedly committed by the petitioners was taken by the C. B. I. because they were 'public servants' on January 19, 2000 in terms of Section 2(c)(iii) as their employer, the company was a 'Government Company' as defined under Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>. However, they have ceased to be 'public servants' after 1-2-2000 and, thus, no previous sanction under Section 19 of the 1988 Act is required.</p><p style="text-align: justify;">12. It stands settled by the Hon'ble Apex Court that in the case of a public servant who is alleged to have committed an offence punishable under the Act, no previous sanction is required if by the time the Court is called upon to take cognizance of the offence, he has ceased to be a 'public servant'. This view was taken by their Lordships in the case of Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411 : (1998 Cri LJ 4003) and has been reiterated in State of J and K v. Charan Dass Puri, (1999) 5 SCC 738, para 4 of which reads as under:-</p><p style="text-align: justify;">'4. This Court in Kalicharan Mahapatra v. State of Orissa (1998 Cri LJ 4003) has held that if a public servant has ceased to be a public servant at the time the Court is called upon to take cognizance of the offence, no previous sanction is necessary. This Court also referred to its previous decision in R. Balakrishna Pillai v. State of Kerala on which reliance has been placed by the High Court for taking the contrary view and has pointed out how that judgment can be of no relevance where the offence alleged is an offence punishable under the Prevention of Corruption Act, 1947. In para 13 of the judgment this Court has specifically dealt with this aspect. Thus, the law on this point is quite clear that in case of a public servant who is alleged to have committed an offence would be required if by the time the Court Is called upon to take cognizance of that offence he has ceased to be a public servant. The High Court was wrong in taking the contrary view. This appeal is, therefore, allowed, judgment and order passed by the High Court are set aside and the trial Court is directed to proceed further with the trial of the case.</p><p style="text-align: justify;">(Emphasis applied)</p><p style="text-align: justify;">13. Before adverting to the issue, a cursory look at the Statement of Objects and Reasons as contained in the Bill which culminated into passing of the 1988 Act, may also be made to find out that it envisages upon widening the scope of the definition of the expression 'public servant', incorporation of offences under Sections 161 to 165-A of the Indian Penal Code and enhancement of penalties provided for these offences etc. The legislative object behind the Act has been well explained by the Hon'ble Supreme Court in State of Madhya Pradesh v. Ram Singh, (2000) 5 SCC 88 wherein it was held that :- (Para 9 of Cri LJ)</p><p style="text-align: justify;">'The Act was intended to make effective 'provisions for the prevention of bribery and corruption rampant amongst the public servants. It is a social legislation intended to curb illegal activities of the public servants and it is designed to be liberally construed so as to advance its object.'</p><p style="text-align: justify;">14. Their Lordships of the Supreme Court in Government of Andhra Pradesh v. P. Venku Reddy, (2002) 7 SCC 631 : held that :-</p><p style="text-align: justify;">'11. Under the repealed Act of 1947 as provided in Section 2 of the 1988 Act, the definition of 'public servant' was restricted to 'public servants' as defined in Section 21 of the Indian Penal Code. In order to curb effectively bribery and corruption not only In Government establishments and departments but also in other semi government authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of 'public servant' has been given in Clause (c) of Section 2 of the 1988 Act.</p><p style="text-align: justify;">12. In construing the definition of 'public servant' in Clause (c) of Section 2 of the 1988 Act, the Court is required to adopt a purposive approach as would give effect to the intention of the legislature. In that view the Statement of objects and reasons contained in the Bill leading to the passing of the Act can be taken assistance of. It gives the background in which the legislation was enacted. The present Act, with a much wider definition of 'public servant', was brought in force to purify public administration. When the legislature has used such a comprehensive definition of 'public servant' to achieve the purpose of punishing and curbing growing corruption in Government and semi-Government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of 'public servant', therefore, deserves a wide construction.'</p><p style="text-align: justify;">15. There can, thus be no doubt that by adopting a purposive approach to give effect to the legislative intentions embodied in the 1988 Act, an expansive meaning has to be given to the expression, public servant' as contained in Section 2(c) thereof so as to make it effective in prevention of corruption rampant amongst the public servants and to curb their illegal activities. However, the object of the Act cannot be allowed to be hampered directly or indirectly by assuming that a 'public servant' as defined under Section 2(c) of the Act shall ipso-facto be a 'public servant' for the purpose of Section 19 also. The very fact that for the purpose of previous sanction under Section 19 of the 1988 Act, the accused person should be a 'public servant' even at the time when the Court takes cognizance of the alleged offence committed by him implies a restrictive and conservative meaning to this provision and its non-compliance can be successfully defended on the plea that such accused person has ceased to be a 'public servant.' It cannot be over-looked that the only object of Section 19 is to provide a limited protection against malicious and vexatious prosecution of a 'public servant' who might be harassed and humiliated by some unscrupulous person through false, engineered and/or frivolous complaint.</p><p style="text-align: justify;">16. Keeping these principles in mind, the status of the petitioners as on February 10, 2001 when the charge-sheet was filed against them, is required to be determined in terms of Section 2(c)(iii) of the 1988 Act.</p><p style="text-align: justify;">17. In my view, the words 'control' and 'aid' as mentioned in the first part of Sub-Clause (iii) of Clause (c) of Section 2 are quite material. The legislature has used both the words, namely, 'control' and 'aided', therefore, the expression 'aided' definitely carries a meaning other than the word, 'control'. The shares in a Company are moveable property and are transferable by their owner only in the manner provided by the Articles of Association of such Company. Owning shares in a corporate body appears to have a direct bearing upon the 'control' over the management and affairs of such body. Majority of shares, if held by an individual or a group of individuals would put them in the 'control' of the body corporate. Similarly, when the paid-up share capital held by the Government in a Company is 51% or above, the Government would not only have 'control' over its management as well as affairs but the Company, would also acquire the status of a 'government company' under Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>. However, from the facts of this case, the intention of the Government to withdraw itself from the 'management' and not to intermeddle in the affairs of the Company is writ large as it was the Government only who transferred 74% of its shares in the Company to the private sector. The retention of some of the shares by the Government in the Company, thus, does not amount to giving any 'aid' by it to such Company as no estimable financial assistance is transacted to the accounts of the Company. It is not the case of the petitioners also that the Company has been authorized to sell-off the shares unilaterally which are a Government property and appropriate their proceeds for running its day-to-day affairs. Further, the petitioners have failed to place on record any material whatsoever to show that the Government has provided the 'financial aid' of any kind to the Company except the retention of 26% shares.</p><p style="text-align: justify;">18. On the plain understanding and the context in which it has been used, the word 'aided', is synonymous to 'financial assistance'. The financial aid to a 'body' can be given for various reasons like its functional activities, the payment of salary to the staff, purchase of raw-material and /or other infrastructural facilities, installation of industrial unit and/or providing transportation etc. when the Government provides financial aid to a body, it is a direct and tangible flow of cash to the accounts of the body from where it pays all and the sundry charges. I have, therefore, no hesitation in concluding that mere retention of 26% shares by the Government in the company, does not amount to an 'aid' given by it to the company. As a necessary corollary of this discussion, it is held that neither the company is a 'body aided by the Government', nor with effect from 1-2-2000 it continued to be a 'government company' as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> for the purposes of Section 2(c)(iii) of the 1988 Act. The obvious consequence is that the petitioners are no longer the 'public servants' with effect from February 1, 2000, and as such the question of seeking previous sanction for their prosecution in terms of Section 19 of the 1988 Act, does not arise.</p><p style="text-align: justify;">19. To be fair to Shri R. S. Cheema, learned senior counsel for the petitioners, he has placed reliance upon certain provisions of the 'Modern Food Industries (India) Limited Staff Regulations' which came into force with effect from 1-4-1990. In my view, prohibition in the service regulations against 'criticism of Government and the company' (Clause 3.6), against taking 'gifts' (Clause 3.9), bar against 'private trade or employment' (Clause 3.11) and 'requirement of disclosure of property statement by every employee of the company' (Clause 3.13), are not the conditions of service, imposition whereof clothes and employee with the status of a 'government employee' or an employee of the other Authorities of the Government. Even a private corporate sector can impose such Code of Conduct upon Its employees depending upon the terms and conditions of their employment. Further, the fact that no adverse alterations in the service conditions of the petitioners have been made after 1-2-2000, does not mean that the 'control' of the company for the purpose of their service conditions, is still in the hands of the 'Government'. It has no material bearing upon the fact that character of the 'employer' of the petitioners has undergone a major change, namely, from a 'Government company' to a 'joint public sector'.</p><p style="text-align: justify;">20. Shri Cheema, learned Senior Counsel has also placed reliance upon certain judgments including (i) State of Maharashtra v. Prabhakarrao (2002) 7 SCC 636: (ii) Government of Andhra Pradesh v. P. Venku Reddy, (2002) 7 SCC 631 : and (iii) a judgment of Andhra Pradesh High Court in S. Komaraiah v. State, rep. by Inspector, CIU ACB, Hyderabad, 2003 (4) Rec. Cri. R. 607, to contend that there is a sweeping change in the definition of 'public servant' by virtue of Section 2(c) of the new legislation, namely, the 1988 Act. There can be no quarrel with the proposition of law laid down in these judgments. However, the widened scope of the expression, 'public servant' cannot be allowed to assume a size larger than the Act itself thereby giving rise to such procedural technicalities which might defeat the legislative object as imbibed in the Act. In other words, an endeavour should be made to see that 'what has been brought by Section 2(c) within the four walls of the 1988 Act', be not tagged as a 'lost baggage' under Section 19 and rather is taken to its logical end.</p><p style="text-align: justify;">21. For the reasons afore-mentioned, I find no merit in this petition which is accordingly dismissed but with no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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	'EVENT' => array(
		(int) 0 => 'the 1988 Act',
		(int) 1 => 'the 1988 Act',
		(int) 2 => 'the 1988 Act''
	),
	'ORDINAL' => array(
		(int) 0 => 'first'
	),
	'QUANTITY' => array(
		(int) 0 => '1-2-2000'
	)
)
$desc = array(
	'Judgement' => array(
		'id' => '630381',
		'acts' => '<a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a> - Sections 2 and 19; <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> - Sections 617',
		'appealno' => 'Criminal Misc. No. 43348-M of 2001',
		'appellant' => 'J.S. Bindra and anr.',
		'authreffered' => '',
		'casename' => 'J.S. Bindra and anr. Vs. C.B.i.',
		'casenote' => ' - HINDU LAW -- Custom: [Vijender Jain, C.J., M.M. Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ] Alienation of ancestral property - Punjab and Haryana -  Held, In respect of State of Punjab by virtue of Punjab Amendment Act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. In Punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by Hindu Law except to the extent it is regulated by Sections 6 and 30 of the Hindu Succession Act. In Haryana, property  in hands of successor has to be treated as coparcenary property as well as ancestral property. Parties can fall back upon Hindu Law in case they fail to establish that rule of decision is custom. Therefore, in Haryana both under Hindu law and the Customary Law, the alienation would be open to challenge. Custom was given precedent over uncodified Hindu Law presumably for reason that custom has been consistently replacing the Hindu Law. However, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst Jats of Punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. It was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. Accordingly, the Punjab Custom (Power to Contest) Act, 1920 (Act No.2 of 1920) was enacted. The Hindu Succession Act was extended to the State of Punjab.  Act 2 of Punjab Act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. A further provision was made by Section 3 that Hindu Succession Act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. Whereas  Section 4 declared that Hindu Succession Act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the Succession Act was to come into force. In other words, Act, No.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. It also preserved the rights of any alienation or appointment of an heir made by a family. After Section 7 was inserted in Act of 1920 by the Punjab Amendment Act of 1973 right of contest being contrary to custom had been totally effaced and taken away. Therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after January 23, 1973. In Haryana, the situation as enunciated by Act No.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to Punjab as brought by Amendment Act of 1973, had been enacted although right to pre-emption has been substantially abolished in Haryana also. No steps even have been taken in that regard. Therefore, situation in Haryana have to be regarded as it existed under Act No. 2 of 1920.
HINDU SUCCESSION ACT,1956[C.A.No.30/1956] --  Sections 6 & 30: [Vijender Jain, C.J., M.M.Kumar, Jasbir Singh, Rajive Bhalla & Rajesh Bindal, JJ]  Alienation of coparcenary property - Law laid down by Full Bench in Joginder Singh Kundha Singh v Kehar Singh Dasaundha Singh [AIR 1965 Punjab 407] and Pritam Singh v Assistant Controller of Estate Duty, Patiala [1976 Punj LR 342] -Whether there is any conflict? - Held, The basic controversy in the Full Bench decision of Joginder Singhs case was regarding constitutional validity of Section 14 of Hindu Succession Act and as to whether it infringes Article 14 of Constitution. It was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. The Full Bench held that Section 14 of Hindu Succession Act postulates that estate held by a Hindu female before enforcement of Succession Act either by inheritance or otherwise, was enlarged and on date of enforcement of Succession Act, she became a full owner. Likewise, if she has inherited any estate after the commencement of the Act,  she was to be regarded as absolute owner rather than a limited owner. Consequently, the limitations on power of alienation automatically vanished. This was the necessary result of the provisions made in Section 14 of the Act. The Full Bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. However, it noticed Section 30 and observed that it only deals with power of his share in coparcenary property by Will, which prior to enforcement of the Act, he had no right to do. The only provision made in respect of male proprietor regarding alienation of property was his power of alienation by Will. In so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the Act. Likewise, other restriction on alienation other than disposal by Will also continued. The Full Bench, thus, recognized the superior right of Hindu females by virtue of Section 14 and upheld the provision as intra vires. The argument that reversioners have ceased to exist after enactment of provisions of Section 14 of Succession Act, was rejected as there was no provision pointed out to that effect. The proposition laid down by the full Bench in Pritam Singhs case was that the Hindu Succession Act has not abolished joint Hindu family with respect to rights of those who were members of Mitakshara coparcenary, except in the manner and to the extent mentioned in Sections 6 and 30 of the Act, This Statement should also imply, though it does not say so expressly, the Succession Act to this extent does not affect the rights of the members governed by Dayabhaga coparcenary. The Full Bench in Pritam Singh;s case expressly noticed the judgment of earlier Full Bench in Joginder Singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by Customary law and constitutional validity of Section 14 of Hindu Succession Act. Thus there is no real conflict between the two Full Bench judgments. Both the Full Bench judgments have been delivered on the assumption that Joginder Singhs case dealt with question of alienation whereas Pritam Singhs case had decided the question concerning succession. Even on fact in Joginder Singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in Pritam Singhs case the question of nature of property in hands of sons on death of their father had arisen  for purposes of assessment of estate duty. In Pritam  Singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of  property belonging to deceased father was considered eligible for estate duty. Therefore, there was no question of alienation in Pritam Singhs case. -  The legislative object behind the Act has been well explained by the Hon'ble Supreme Court in State of Madhya Pradesh v. In order to curb effectively bribery and corruption not only In Government establishments and departments but also in other semi government authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of 'public servant' has been given in Clause (c) of Section 2 of the 1988 Act. Similarly, when the paid-up share capital held by the Government in a Company is 51% or above, the Government would not only have 'control' over its management as well as affairs but the Company, would also acquire the status of a 'government company' under Section 617 of the Companies Act, 1956. However, from the facts of this case, the intention of the Government to withdraw itself from the 'management' and not to intermeddle in the affairs of the Company is writ large as it was the Government only who transferred 74% of its shares in the Company to the private sector. Further, the petitioners have failed to place on record any material whatsoever to show that the Government has provided the 'financial aid' of any kind to the Company except the retention of 26% shares. 18. On the plain understanding and the context in which it has been used, the word 'aided',is synonymous to 'financial assistance'.The financial aid to a 'body' can be given for various reasons like its functional activities, the payment of salary to the staff, purchase of raw-material and /or other infrastructural facilities, installation of industrial unit and/or providing transportation etc.',
		'caseanalysis' => null,
		'casesref' => 'S. Komaraiah v. State;',
		'citingcases' => '(a) xxx          xxx      xx;(iv) to (vii) xxx      xxx         xxx;(x) to (xii) xxx      xxx          xxx',
		'counselplain' => ' R.S. Cheema, Sr. Counsel and; Pawan Girdhar, Adv.',
		'counseldef' => ' Rajan Gupta, Adv.',
		'court' => 'Punjab and Haryana',
		'court_type' => 'HC',
		'decidedon' => '2004-08-18',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' Suryakant, J.',
		'judgement' => 'ORDER<p style="text-align: justify;">Suryakant, J.</p><p style="text-align: justify;">1. In this petition under Section 482 of the Code of Criminal Procedure, 1973, the petitioners have sought quashing/setting aside of the order dated Oct. 9, 2001 (Annexure P-3) passed by the Special Judge, C.B.I.. Chandigarh, whereby their application to discharge them in case RC No. 1-2000/SPE-CHD under Section 7, 13(2) of the <a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a> (for short, the 1988 Act) read with Section 120B, of the Indian Penal Code for want of previous sanction for prosecution, has been dismissed.</p><p style="text-align: justify;">2. The core question which has arisen for consideration is as to whether prosecution of the petitioners under the aforementioned provisions of the Penal Laws is liable to fall flat due to absence of previous sanction for their prosecution under Section 19 of the Act, 1988 Act?</p><p style="text-align: justify;">3. The facts relevant to answer the aforesaid issue are that petitioner No. 1 (J.S. Bindra) and petitioner No. 2 (D.B. Malhotra) were working as General Manager and Sales Manager respectively in Messers Modern Food Industries (India) Ltd. (hereinafter referred to as the Company) at the relevant time. The Company, till Feb. 1, 2000 was a 'Government company' under Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>. The Company's 74% shares, however, were transferred in favour of Messers Hindustan Lever Limited, also a Company incorporated under the Companies Act, with effect from 1st Feb, 2000 whereas the remaining 26% share capital continued to be retained by the Government of India. As per the allegations contained in the F.I.R. dated January 19, 2000, the petitioners were caught red handed by the C.B.I, while demanding and accepting a bribe of Rs. 25,000/- at Hotel Metro, Sector 35. Chandigarh, on January 19, 2000 from the complainant, namely, Pawan Kumar son of Shri Ram Gopal, resident of House No. 76, Ward No. 18, Kurali (Punjab). After the investigation, charge-sheet was filed against the petitioners in the Court of Special Judge, C.B.I., Chandigarh, under Section 7, 13(l)(d), 13(2) of the 1988 Act read with Section 120B of the Indian Penal Code on Feb. 10, 2001. The petitioners thereafter moved an application on July 10, 2001 for their discharge from the case on the ground that no previous sanction for their prosecution in terms of Section 19 of the 1988 Act was obtained. The Special Judge, C.B.I., Chandigarh, however, did not find favour with the contention of the petitioners and dismissed the aforesaid application vide impugned order dated Oct. 9, 2001 (Annexure P-3) giving rise to the filing of this petition.</p><p style="text-align: justify;">4. According to the petitioners, at the time when the offence was allegedly committed by them, namely, January 19, 2000, they were 'public servants' and they continue to hold the aforementioned status irrespective of the change in Corporate status of the Company, namely, it having become a 'joint sector company' from that of the 'government company', therefore, previous sanction for their prosecution under Section 19 of the 1988 Act, was mandatorily required. In addition, they assert that there is no adverse alteration in the conditions of their service which are still governed by the 'M/s. Modern Food Industries (India) Limited Staff Regulations' which came into force with effect from 1-4-1990 and that their status as 'public servants' has also been legislatively protected by Section 2(c)(iii) of the 1988 Act.</p><p style="text-align: justify;">5. The C. B. I., in its reply, has averred that after the purchase of 74% of the shares of the company by Messers Hindustan Lever Limited and only 26% shares having remained with the Government with effect from February 1, 2000, the company is neither a 'Government undertaking' any longer, nor its employees are 'public servants' under Section 2(c)(iii), therefore, there is no legal necessity to seek previous sanction from the appropriate Government for their prosecution in terms of Section 19 of 1988 Act.</p><p style="text-align: justify;">6. It appears from the record that the C. B. I. had actually applied for sanction to prosecute the petitioners but the same was refused on the premise that the company was no longer wholly owned by the Government, therefore, the petitioners were not 'public servants' at the time when the charge sheet was required to be submitted and hence, previous sanction for their prosecution was not required.</p><p style="text-align: justify;">7. I have heard Shri R. S. Cheema, learned Senior counsel representing the petitioners and Shri Rajan Gupta, learned Standing counsel for the C. B. I. and have also perused the record.</p><p style="text-align: justify;">8. As pointed out at the out-set, the primary contention of the petitioners revolves around their contention that prior sanction was a sine qua non before launching any lawful prosecution against them and in the absence thereof they are liable to be dis-charged whereas the C. B. I. has denied the requirement of any such necessity in law.</p><p style="text-align: justify;">9. Before answering the issue raised in this Petition, a brief reference to some of the relevant provisions of the 1988 Act may be made. Section 2(b) defines the expression 'public duty' which means a duty in the discharge of which the State, the public or the community at large, has interest. Section 2(c) defines 'public servant' whereas Section 19 provides those circumstances under which the previous sanction of the appropriate Government is necessary for prosecution of a 'public servant' who is alleged to have committed an offence under Sections 7, 10, 11, 13 and 15 of the Act. Since Sections 2(b), (c) and 19 of the 1988 Act which have a direct bearing upon the controversy involved in this case, are reproduced in extenso :-</p><p style="text-align: justify;">'Section 2. : Definitions.- In this Act, unless the context otherwise requires,-</p><p style="text-align: justify;">(a) xxx xxx xx(b) 'public duty' means a duty in the discharge of which the State, the public or the community at large has an interest;</p><p style="text-align: justify;">Explanation.- In this clause 'State' includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>.</p><p style="text-align: justify;">(c) 'public servant' means -</p><p style="text-align: justify;">(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty,</p><p style="text-align: justify;">(ii) any person in the service or pay of a local authority;</p><p style="text-align: justify;">(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>;</p><p style="text-align: justify;">(iv) to (vii) xxx xxx xxx(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;</p><p style="text-align: justify;">(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>;</p><p style="text-align: justify;">(x) to (xii) xxx xxx xxxExplanation 1. Persons falling under any of the above Sub-clauses are public servants, whether appointed by the Government or not.</p><p style="text-align: justify;">Explanation 2.- Wherever the words 'public servant' occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.</p><p style="text-align: justify;">Section 19</p><p style="text-align: justify;">Previous sanction necessary for prosecution.-</p><p style="text-align: justify;">(1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,-</p><p style="text-align: justify;">(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;</p><p style="text-align: justify;">(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government:</p><p style="text-align: justify;">(c) in the case of any other person, of the authority competent to remove him from his office.</p><p style="text-align: justify;">(2) Where for any reason whatsover any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed, xx xxx xxx xxx xxx xxx'</p><p style="text-align: justify;">10. Shri R. S. Cheema, learned Senior Counsel contended that in view of Section 2(c)(iii), the petitioners are still the public servants' as their employer, namely, the company which was previously a Government company', is now a 'body' aided by the Government' as 26% of the share capital of the company is still retained by the Government.</p><p style="text-align: justify;">11. Shri Rajan Gupta, learned Standing counsel for the C. B. I., on the other hand contended that cognizance of the offence allegedly committed by the petitioners was taken by the C. B. I. because they were 'public servants' on January 19, 2000 in terms of Section 2(c)(iii) as their employer, the company was a 'Government Company' as defined under Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>. However, they have ceased to be 'public servants' after 1-2-2000 and, thus, no previous sanction under Section 19 of the 1988 Act is required.</p><p style="text-align: justify;">12. It stands settled by the Hon'ble Apex Court that in the case of a public servant who is alleged to have committed an offence punishable under the Act, no previous sanction is required if by the time the Court is called upon to take cognizance of the offence, he has ceased to be a 'public servant'. This view was taken by their Lordships in the case of Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411 : (1998 Cri LJ 4003) and has been reiterated in State of J and K v. Charan Dass Puri, (1999) 5 SCC 738, para 4 of which reads as under:-</p><p style="text-align: justify;">'4. This Court in Kalicharan Mahapatra v. State of Orissa (1998 Cri LJ 4003) has held that if a public servant has ceased to be a public servant at the time the Court is called upon to take cognizance of the offence, no previous sanction is necessary. This Court also referred to its previous decision in R. Balakrishna Pillai v. State of Kerala on which reliance has been placed by the High Court for taking the contrary view and has pointed out how that judgment can be of no relevance where the offence alleged is an offence punishable under the Prevention of Corruption Act, 1947. In para 13 of the judgment this Court has specifically dealt with this aspect. Thus, the law on this point is quite clear that in case of a public servant who is alleged to have committed an offence would be required if by the time the Court Is called upon to take cognizance of that offence he has ceased to be a public servant. The High Court was wrong in taking the contrary view. This appeal is, therefore, allowed, judgment and order passed by the High Court are set aside and the trial Court is directed to proceed further with the trial of the case.</p><p style="text-align: justify;">(Emphasis applied)</p><p style="text-align: justify;">13. Before adverting to the issue, a cursory look at the Statement of Objects and Reasons as contained in the Bill which culminated into passing of the 1988 Act, may also be made to find out that it envisages upon widening the scope of the definition of the expression 'public servant', incorporation of offences under Sections 161 to 165-A of the Indian Penal Code and enhancement of penalties provided for these offences etc. The legislative object behind the Act has been well explained by the Hon'ble Supreme Court in State of Madhya Pradesh v. Ram Singh, (2000) 5 SCC 88 wherein it was held that :- (Para 9 of Cri LJ)</p><p style="text-align: justify;">'The Act was intended to make effective 'provisions for the prevention of bribery and corruption rampant amongst the public servants. It is a social legislation intended to curb illegal activities of the public servants and it is designed to be liberally construed so as to advance its object.'</p><p style="text-align: justify;">14. Their Lordships of the Supreme Court in Government of Andhra Pradesh v. P. Venku Reddy, (2002) 7 SCC 631 : held that :-</p><p style="text-align: justify;">'11. Under the repealed Act of 1947 as provided in Section 2 of the 1988 Act, the definition of 'public servant' was restricted to 'public servants' as defined in Section 21 of the Indian Penal Code. In order to curb effectively bribery and corruption not only In Government establishments and departments but also in other semi government authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of 'public servant' has been given in Clause (c) of Section 2 of the 1988 Act.</p><p style="text-align: justify;">12. In construing the definition of 'public servant' in Clause (c) of Section 2 of the 1988 Act, the Court is required to adopt a purposive approach as would give effect to the intention of the legislature. In that view the Statement of objects and reasons contained in the Bill leading to the passing of the Act can be taken assistance of. It gives the background in which the legislation was enacted. The present Act, with a much wider definition of 'public servant', was brought in force to purify public administration. When the legislature has used such a comprehensive definition of 'public servant' to achieve the purpose of punishing and curbing growing corruption in Government and semi-Government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of 'public servant', therefore, deserves a wide construction.'</p><p style="text-align: justify;">15. There can, thus be no doubt that by adopting a purposive approach to give effect to the legislative intentions embodied in the 1988 Act, an expansive meaning has to be given to the expression, public servant' as contained in Section 2(c) thereof so as to make it effective in prevention of corruption rampant amongst the public servants and to curb their illegal activities. However, the object of the Act cannot be allowed to be hampered directly or indirectly by assuming that a 'public servant' as defined under Section 2(c) of the Act shall ipso-facto be a 'public servant' for the purpose of Section 19 also. The very fact that for the purpose of previous sanction under Section 19 of the 1988 Act, the accused person should be a 'public servant' even at the time when the Court takes cognizance of the alleged offence committed by him implies a restrictive and conservative meaning to this provision and its non-compliance can be successfully defended on the plea that such accused person has ceased to be a 'public servant.' It cannot be over-looked that the only object of Section 19 is to provide a limited protection against malicious and vexatious prosecution of a 'public servant' who might be harassed and humiliated by some unscrupulous person through false, engineered and/or frivolous complaint.</p><p style="text-align: justify;">16. Keeping these principles in mind, the status of the petitioners as on February 10, 2001 when the charge-sheet was filed against them, is required to be determined in terms of Section 2(c)(iii) of the 1988 Act.</p><p style="text-align: justify;">17. In my view, the words 'control' and 'aid' as mentioned in the first part of Sub-Clause (iii) of Clause (c) of Section 2 are quite material. The legislature has used both the words, namely, 'control' and 'aided', therefore, the expression 'aided' definitely carries a meaning other than the word, 'control'. The shares in a Company are moveable property and are transferable by their owner only in the manner provided by the Articles of Association of such Company. Owning shares in a corporate body appears to have a direct bearing upon the 'control' over the management and affairs of such body. Majority of shares, if held by an individual or a group of individuals would put them in the 'control' of the body corporate. Similarly, when the paid-up share capital held by the Government in a Company is 51% or above, the Government would not only have 'control' over its management as well as affairs but the Company, would also acquire the status of a 'government company' under Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>. However, from the facts of this case, the intention of the Government to withdraw itself from the 'management' and not to intermeddle in the affairs of the Company is writ large as it was the Government only who transferred 74% of its shares in the Company to the private sector. The retention of some of the shares by the Government in the Company, thus, does not amount to giving any 'aid' by it to such Company as no estimable financial assistance is transacted to the accounts of the Company. It is not the case of the petitioners also that the Company has been authorized to sell-off the shares unilaterally which are a Government property and appropriate their proceeds for running its day-to-day affairs. Further, the petitioners have failed to place on record any material whatsoever to show that the Government has provided the 'financial aid' of any kind to the Company except the retention of 26% shares.</p><p style="text-align: justify;">18. On the plain understanding and the context in which it has been used, the word 'aided', is synonymous to 'financial assistance'. The financial aid to a 'body' can be given for various reasons like its functional activities, the payment of salary to the staff, purchase of raw-material and /or other infrastructural facilities, installation of industrial unit and/or providing transportation etc. when the Government provides financial aid to a body, it is a direct and tangible flow of cash to the accounts of the body from where it pays all and the sundry charges. I have, therefore, no hesitation in concluding that mere retention of 26% shares by the Government in the company, does not amount to an 'aid' given by it to the company. As a necessary corollary of this discussion, it is held that neither the company is a 'body aided by the Government', nor with effect from 1-2-2000 it continued to be a 'government company' as defined in Section 617 of the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> for the purposes of Section 2(c)(iii) of the 1988 Act. The obvious consequence is that the petitioners are no longer the 'public servants' with effect from February 1, 2000, and as such the question of seeking previous sanction for their prosecution in terms of Section 19 of the 1988 Act, does not arise.</p><p style="text-align: justify;">19. To be fair to Shri R. S. Cheema, learned senior counsel for the petitioners, he has placed reliance upon certain provisions of the 'Modern Food Industries (India) Limited Staff Regulations' which came into force with effect from 1-4-1990. In my view, prohibition in the service regulations against 'criticism of Government and the company' (Clause 3.6), against taking 'gifts' (Clause 3.9), bar against 'private trade or employment' (Clause 3.11) and 'requirement of disclosure of property statement by every employee of the company' (Clause 3.13), are not the conditions of service, imposition whereof clothes and employee with the status of a 'government employee' or an employee of the other Authorities of the Government. Even a private corporate sector can impose such Code of Conduct upon Its employees depending upon the terms and conditions of their employment. Further, the fact that no adverse alterations in the service conditions of the petitioners have been made after 1-2-2000, does not mean that the 'control' of the company for the purpose of their service conditions, is still in the hands of the 'Government'. It has no material bearing upon the fact that character of the 'employer' of the petitioners has undergone a major change, namely, from a 'Government company' to a 'joint public sector'.</p><p style="text-align: justify;">20. Shri Cheema, learned Senior Counsel has also placed reliance upon certain judgments including (i) State of Maharashtra v. Prabhakarrao (2002) 7 SCC 636: (ii) Government of Andhra Pradesh v. P. Venku Reddy, (2002) 7 SCC 631 : and (iii) a judgment of Andhra Pradesh High Court in S. Komaraiah v. State, rep. by Inspector, CIU ACB, Hyderabad, 2003 (4) Rec. Cri. R. 607, to contend that there is a sweeping change in the definition of 'public servant' by virtue of Section 2(c) of the new legislation, namely, the 1988 Act. There can be no quarrel with the proposition of law laid down in these judgments. However, the widened scope of the expression, 'public servant' cannot be allowed to assume a size larger than the Act itself thereby giving rise to such procedural technicalities which might defeat the legislative object as imbibed in the Act. In other words, an endeavour should be made to see that 'what has been brought by Section 2(c) within the four walls of the 1988 Act', be not tagged as a 'lost baggage' under Section 19 and rather is taken to its logical end.</p><p style="text-align: justify;">21. For the reasons afore-mentioned, I find no merit in this petition which is accordingly dismissed but with no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 482, Section 7, the Indian Penal Code, Section 19 of the Act, Section 617, the Companies Act, the Companies Act, Section 7,, Section 120B, the Indian Penal Code, Section 19 of the 1988 Act, Section 19, Section 2(c)(iii, Section 2(c)(iii, Section 19 of 1988, Section 19, Section 617, the Companies Act, Section 617, the Companies Act, Section 617, the Companies Act, Section 2(c)(iii, Section 2(c)(iii, Section 617, the Companies Act, Section 19, the Indian Penal Code, Section 2, Section 21, the Indian Penal Code, Section 2, Section 2, Section 2(c, Section 2(c, Section 19, Section 19, Section 19, Section 2(c)(iii, Section 2, Section 617, the Companies Act, Section 617, the Companies Act, Section 2(c)(iii, Section 19 of the 1988 Act, Section 2(c, Section 2(c, Section 19

ORG: ORDERSuryakant, SPE, the Prevention of Corruption Act, the Penal Laws, Messers Modern Food Industries, Company, Messers Hindustan Lever Limited, the Government of India, C.B.I, House, the Court of Special Judge, Company, Modern Food Industries, Messers Hindustan Lever Limited, Government, State, Sections 7, State, State, -(i, Government, the Central Government, Government, Sections 7, the Central Government, State, the State Government, Government:(c, the Central Government, the State Government, the Hon'ble Apex Court, Court, Lordships, Kalicharan Mahapatra, Cri LJ 4003, State of J and K v., Court, Cri LJ 4003, Court, Court, the High Court, the Prevention of Corruption Act, Court, Court, The High Court, the High Court, Court, the Statement of Objects, the Hon'ble Supreme Court, State of, the Supreme Court in Government of Andhra Pradesh, Court, Court, Sub-Clause, the Articles of Association, Government, Company, Government, Company, Company, Company, Company, Government, Company, Government, Modern Food Industries, Authorities of the Government, the 'Government', Maharashtra v. Prabhakarrao, Andhra Pradesh High Court, CIU, Hyderabad

NORP: J.1, Kalicharan Mahapatra, R.

DATE: 1973, Oct. 9, 2001, 1988, Feb. 1, 2000, 1956, 1st Feb, 2000, January 19, 2000, Sector 35, January 19, 2000, 76, 13(l)(d, 1988, Feb. 10, 2001, July 10, 2001, Oct. 9, 2001, January 19, 2000, 1988, February 1, 2000, 10, 11, 13, 1956;(x, 10, 11, 13, January 19, 2000, 1956, 1998, 1998, 1999, 1998, 1947, 2000, 2002, 1947, 1988, '15, February 10, 2001, 1988, 1956, day, 1956, February 1, 2000, 2002, 2002, 2003

PRODUCT: P-3, Section 120B, P-3

PERSON: C.B.I, J.S. Bindra, D.B. Malhotra, Pawan Kumar, Shri Ram Gopal, Kurali, Chandigarh, Chandigarh, The C. B. I., Shri R. S. Cheema, Shri Rajan Gupta, Shri R. S. Cheema, Shri Rajan Gupta, Balakrishna Pillai, Reasons, Bill, Ram Singh, P. Venku Reddy, Bill, Shri R. S. Cheema, Shri Cheema, P. Venku Reddy, S. Komaraiah v. State

CARDINAL: 1-2000, 13(2, 1, 2, 25,000/-, 18, 13(2, 1-4-1990, 19, 2, 1956;(iv, 15, 1, 1, 6, 411, 5, 738, 4, 13, 161, 5, 7, 631, 1-4-1990, 3.9, 3.13, 1, 7, 636, 7, 631, 4, 607, four

PERCENT: 74%, 26%, 74%, only 26%, 26%, 51%, 74%, 26%, 26%

GPE: F.I.R., C.B.I., C.B.I., Act.5, the C. B. I., Orissa, Orissa, Kerala, Clause, Government

TIME: 15 of the Act

EVENT: the 1988 Act, the 1988 Act, the 1988 Act'

ORDINAL: first

QUANTITY: 1-2-2000