G. N. Ray, J. - (1.) The common question of law that arises in all these matters is whether the provisions of sanction under Section 197 of the Code of Criminal Procedure, 1973 are applicable for prosecuting officers of the public sector undertakings or the Government Companies when on account of deep and per-vasive control of finance and administration of such undertakings and government companies they are held as State within the meaning of Article 12 of the Constitution of India
(2.) It will be appropriate at this stage to refer to the provisions of Section 197 of the Code of Criminal Procedure:- Section 197:Prosecution of Judges and Public Servants- (1) when any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or as the case may be was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government: (b) in the case of a person who is employed or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a proclamation issued under Clause (1) of Article 350 of the Constitution was in force in a State, Clause (b) will apply as if for the expression "State Government" occurring there, the expression "Central Government" were substituted. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty except with the previous sanction of the Central Government. (3) ********** (4) ********** Under the aforesaid provisions, in respect of prosecution of an accused who was or is a Judge or Magistrate or a public servant and not removable from his office save by or with the sanction of the government and if such person is accused of any offence alleged to have been committed by him while acting or purporting to act in the official discharge of his duties, no Court would take cognizance of such offence except with the previous sanction as enumerated in Clauses (a) and (b) of sub-section (1) of Section 197 of the Code of Criminal Procedure. For the purpose of requirement of sanction under Section 197 of the Code of Criminal Procedure, the accused will not only be a public servant but he will be such public servant who cannot be removed from his office except by or with the sanction of the Government. Further, the accused will not only be a public servant of above description but the offence alleged to have been committed by such officer must have been committed while such public servant had been acting or purporting to act in the discharge of his official duties.
(3.) It is, therefore, necessary to analyse whether an officer of public sector undertakings or the government companies being State within the meaning of Article 12 of the Constitution, who under the terms of the appointment or the articles of the association of the government companies are removable from their respective office save by the sanction of the government when the offence alleged against them had been committed while acting or purporting to act in the discharge of official duties.;