Protection Of S. 197(1) CrPC Available Only To Public Servants Whose Appointing Authority Is Central Or State Govt: Supreme Court
The Supreme Court dismissed Criminal Appeals preferred against the common Judgment of the Punjab and Haryana High Court, which allowed a Revision Petition.
The Supreme Court reiterated that the protection of Section 197(1) of the Criminal Procedure Code, 1973 is available only to public servants whose appointing authority is Central or State Government.
The Court reiterated thus in two Criminal Appeals preferred against the common Judgment of the Punjab and Haryana High Court, which allowed a Revision Petition in which the Order of the Special Court dismissing the Application for discharge was under challenge.
The two-Judge Bench of Justice Dipankar Datta and Justice Manmohan observed, “This legal position is fortified by a recent decision of this Court in A. Sreenivasa Reddy v. Rakesh Sharma where a coordinate Bench has held that protection of sub-section (1) of Section 197, Cr. PC is available only to such public servants whose appointing authority is the Central Government or the State Government and not to every public servant.”
The Bench said that where exigency of public service requires the parent department (lending authority) to send its employee on deputation to the receiving department (borrowing authority) and such an arrangement is preceded by a consensus among the three, i.e., the lending authority, the borrowing authority and the officer/employee, the statutory rules do normally provide for his repatriation.
Additional Solicitor General (ASG) Suryaprakash V. Raju appeared for the Appellant while Senior Advocate D.P. Singh appeared for the Respondent.
Brief Facts
In the lead Appeal, the Central Bureau of Investigation (CBI) was the Appellant. An FIR was registered in 2014 under Sections 120B and 420 of the Indian Penal Code, 1860 (IPC) and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (PC Act) against the Respondent. It was alleged that while the Respondent was functioning as the Executive Engineer, Public Health, Municipal Corporation, Chandigarh, in connivance and collusion with the co accused, he caused wrongful loss in excess of Rs. 13.66 crore to the Government exchequer by changing the terms and conditions of the Detailed Notice Inviting Tender.
Thereafter, a chargesheet was filed and the Special Judge framed charges against the accused persons. The Respondent had retired from service having attained the age of superannuation in 2016. The Sanction under Section 197 of the CrPC was not obtained by CBI. The Respondent applied for discharge on the ground of absence of sanction at any stage and also sought protection under the amended provisions of Section 19(1) of the PC Act, which mandated sanction to be obtained even in respect of retired public servants. The Special Court dismissed the Application for discharge whereafter the High Court on the Respondent’s Application under Section 401 read with 482 CrPC passed the impugned Order. Hence, the case was before the Apex Court.
Reasoning
The Supreme Court in the above context of the case, noted, “… during the period the officer/employee is sent on deputation to the receiving department, the parent department may fill up the post vacated by the deputationist in accordance with law under the category of ‘deputation vacancy’, which also is not unknown in public service law, but it is only for a limited period till the officer/employee is repatriated.”
The Court added that although generally an employee is supposed to have one master, in the context of deputation, there could be a plurality of masters. It further said that it is the statutory rules which would be the deciding factor and if the rules indicate that disciplinary control is retained by the parent department, the receiving department would have no jurisdiction to exercise such control.
“It has not been demonstrated before us by CBI that upon assignment of the respondent on deputation with the Municipal Corporation, Chandigarh, he was either absorbed in its services resulting in severance of relationship with the Government of Punjab or that, by any order validly made, the respondent ceased to remain a Government servant once he left the post under the Government he was serving prior to his deputation”, it further noted.
The Court was of the view that neither the Board of the Municipal Corporation, Chandigarh nor its Municipal Commissioner would have the authority or jurisdiction to take disciplinary action against the Respondent had he misconducted himself while discharging his duty under such corporation.
“… the respondent ceased to be a public servant upon being sent on deputation first to the Union Territory, Chandigarh or when he was relieved by the Administrator for joining a new assignment in the Municipal Corporation, Chandigarh. The inevitable result is that the lead appeal and the connected appeal ought to fail”, it concluded.
Accordingly, the Apex Court dismissed the Appeals.
Cause Title- Central Bureau of Investigation v. Ramesh Chander Diwan (Neutral Citation: 2025 INSC 539)
Appearance:
Appellant: ASG Suryaprakash V Raju, AORs Mukesh Kumar Maroria, Neha Mehta Satija, Advocates Mukul Singh, Zoheb Hussain, Annam Venkatesh, Vivek Gurnani, Aditya Grover, Harshit Khanduja, Sujal Gupta, and Pulkit Khanduja.
Respondent: Senior Advocate D.P. Singh, AORs Astha Sharma, Sanjay Jain, Advocates Tarannum Cheema, Aman Prasad, Akash Singh, Manu Mishra, Akashy. N, Garima Saxena, and Imaan Khera.
