K.P.S.SANDHU,J - (1.) THESE four criminal revision petitions have been filed against the order of the Special Judge, Ambala, dated 25th August, 1984. Out of these four revision petitions, Criminal Revision No. 1770, 1769 and 1663 of 1984 have been filed by Balwant Singh petitioner while Criminal Revision No. 1631 of 1984 has been filed by two petitioners, namely, B.L. Dalmia and R.C. Jha. The only and common point of law involved in these revision petitions is as to whether the employees of the nationalised banks are public servants within the meaning of section 21, clause 12(b), of the Indian Penal Code.
(2.) THE facts which gave rise to these petitions are that Balwant Singh petitioner is the manager of the State Bank of Patiala at Kalka while B.L. Dalmia and R.C. Jha are factory-owners at Bhiwani in Haryana State. The last mentioned two petitioner had financial dealings with the aforesaid branch of the bank. A case against those three petitioners and some others was registered at the instance of the C.B.I. at Police Station, Ambala Cantt., under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act and section 120-B read with section 420 of the Indian Penal Code. The challan was put up in the Court of Shri V.M. Jain, Special Judge Ambala. The petitioners and their co-accused raised a preliminary objection to the effect that the employees of the nationalised banks were not public servants within the meaning of section 21 of the Indian Penal Code. So, the Special Judge was not competent to try them under the provisions of the Prevention of Corruption Act. However, the learned Special Judge overruled the objection and came to a finding that the employees of the nationalised banks were public servants within the meaning of section 21 of the Indian Penal Code and could be tried under the provisions of the Prevention of Corruption Act. Aggrieved by the order of the learned Special Judge, these petitioners have come up in revision to this Court. Mr. H.N. Mehtani and Mr. K.K. Aggarwal, learned counsel for the petitioners, have placed reliance on a Division Bench authority of Delhi High Court reported as Oriental Bank of Commerce and another v. Delhi Development Authority and others, 1982 Cr. L.J. 2230. Their Lordships in their elaborate judgment while dealing with the contentions of the parties held as under :- "The precise contention of the Chairman petitioners is that they are in the service/pay of a corporation established by the Banks Act and, therefore public servants entitled to the protection of Section 197 Cr.P.C. "21. The question as to what a corporation established by or under the Act is, came to be examined by the Supreme Court in S.S. Dhanoe v. Municipal Corporation of Delhi, AIR 1981 SC 1395: (1981 Crl L.J. 871). It laid down: (1) Corporation in its widest sense, may mean any association of individuals entitled to act as an individual (Para 9). But in the context of clause Twelfth, Section 21 I.P.C. the expression "corporation" must be given a narrow legal connotation (Para 8). (2) Clause Twelfth does not use the words "body corporate", but uses the word 'corporation'. And a corporation is an artificial being created by law having a legal entity entirely separate and distinct from the individuals who compose it with the capacity of continuous existence and succession notwithstanding changes in its membership. They also quoted a passage from the judgment of Chief Justice Marshall in Dartmouth College v. N.H. Woodward, (1816-19) 4 Wheat 518, 639: 4 L. Ed. 629: "A corporation is an artificial being, invisible intangible and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important rare immortality, and, if the expression may be allowed, individuality, properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs, and to hold property, without the perplexing intricacies, the hazardous and endless necessity of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of man, in succession, with those qualities and capacities, that corporations were invented, and are in ue. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object like new immortal being." (3) STC, LIC, ONGC, IFC, etc., are example of the corporation which are covered by the said clause Twelfth. (4) The Super Bazar was a "body corporation" established in pursuance of the Bombay Cooperative Societies Act, 1925, but was not a corporation established by or under the statute within the meaning of the said clause Twelfth. The manager of the Super Bazar was not employed in connection with the affairs of the Union, because the Super Bazars though heavily financed by the Government are not owned by the Central Government but are owned and managed by the Cooperative Stores Ltd. "22. Let us then examine the case of the Chairman petitioners in the light of the observations of the Supreme Court. By Sub-Section (1) of Section 3 of the Banks Act, new Banks were constituted and sub-section (4) thereof provided - "Every corresponding new bank shall be 'body corporate' with perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property, and to contract and may sue and be sued in its name". Now, we have to inquire what has the legislature thought fit to enact by these words. There is no doubt as the enactment says so in express terms that the petitioner Banks are "bodies corporate" and, therefore, are covered by the provisions of Section 32 of the Act. There is also no doubt that they are so declared (in fact not established in terms) by or under the Banks Act. The crucial question that follows is: is it a corporation on within the narrow meaning of the aforesaid clause Twelfth of Section 21 of the I.P.C.? Reverting to the law laid down by the Supreme Court, it is necessary to see that in order that the Corporation is covered by clause Twelfth, it must be proved to be a legal entity entirely separate and distinct from the individuals who compose it. That is a doctrine finally rooted in our motions derived from common law: A.P. State Road Transport Corporation v. Income tax Officer, AIR 1964 SC 1486 Para 17. Our inquiry has, therefore, to be directed to answer the question: the New Bank is an entity separate from whom? The Bank Act does not provide for the individuals who will compose or constitute the New Bank, in contradiction to the Acts which have established the Corporations, such as STC, LIC, etc. and have specified the individuals (indicated by name or by designation) which will constitute or compose these corporations or which the corporation shall consist. I have also scanned several statutes of the united Kingdom and I have found that in all of them the legislature has taken care to provide the human substratum for creating a separate artificial and fictional entity. The Banks Act makes no such provision except say in sub-section (2) of its Section 7 that the general superintendence, direction and management of the affairs and business of a New Bank shall vest in a Board of Directors which shall be entitled to exercise all such powers and do all such acts and things as the corresponding New Bank is authorised to exercise and do. It cannot, therefore, be said that the Board of Directors are the individuals who compose the Corporation. The human components or constituents are thus missing there in the petitioner Banks. Strictly speaking, therefore one has to say the the petitioner Bank are not corporations within the meaning of Clause 12. But then thew to describe such a "body corporate"? The learned counsel for the DDA submitted that a similar question in an identical situation came to be examined by Salmond. In a footnote (k) in para 67 in Chapter X relating to Corporations in his celebrated treatise " Jurisprudence". Ed. 1966, page 66, he has said :- "Occasionally in the statute book we find the so called Corporates which are in truth not Corporations at all having no incorporated members, but are merely personified institutions. The Commonwealth Bank of Australia constituted by an act of the Federal Parliament of Australia is an example. See the Commonwealth Bank Act, 1911, Section 5. "A Commonwealth Bank to be called the Commonwealth Bank of Australia is hereby established," Section 6. "The Bank shall be a body corporate with perpetual succession and a common seal and may hold - land and may sue and be sued in its corporate name." The petitioner Banks, therefore, can be described a personified institution, an artificial legal person no doubt, but not because they are corporations. I agree and it seems to me to be correct to say that the petitioner Banks are not "corporations", though they are "bodies corporate" personified institutions. In paragraph 32 of the judgment their Lordships came to the following conclusion :- "I must, therefore, uphold the contention of the DDA that the Chairman or the Directors of the said two Banks do not satisfy the conditions of Section 197 Cr.P.C. I have come to this conclusion after weeks spent in attempting to come to another." On the other hand, Mr. Amar Advocate appearing for the Advocate-General Haryana, has placed reliance on Kurian v. State of Kerala, 1982(1) Cri, L.J. 780. and S.C. Aggarwal v. The State of U.P., 1979 All. L.J. 922. In Kurian's case (supra) their Lordships came to a definite conclusion that the employees of the nationalised banks were public servants. In view of this apparent conflict in the judgments, I feel that it would only be proper if the case is referred to a larger Bench for an authoritative pronouncement on the point as this point of law is of vital importance and is likely to crop up in a number of cases. The papers be placed before Lord Chief Justice for necessary orders. Sd/- K.P.S. Sandhu, Judge. July 17, 1985. JUDGMENT Dated 16th April, 1986 Passed by D.B. :-
(3.) M .M. Punchhi, J. - These four petitioners (Cr. Revision Nos. 1631, 1663, 1769 and 1770 of 1984) can conveniently be disposed of by a single order. These have jointly been referred to the Division Bench by an Hon'ble Single Judge of this Court to settle a common question of law whether the employees of the nationalised banks are public servants within the meaning of section 21, clause twelfth(b) of the Indian Penal Code. Balwant Singh (now dead) is the revision-petitioner in Criminal Revision Nos. 1663, 1769 and 1770 of 1984. On his death these revision petitions abate as none of his near relatives has approached his court to be substituted as the petitioner. However, in Criminal Revision No. 1663 of 1984 Bhagat Singh co-accused in that particular case, has sought permission to be impleaded as a party pursuing the revision petition. The ground taken is that since the revision petition was likely to abate, he be allowed to prosecute the petition. The ground is altogether untenable. He cannot be allowed to be made petitioner in substitution of Balwant Singh deceased. In the fourth petition i.e. Criminal Revision No. 1631 of 1984 the petitioners are two businessmen and not bank employees. The question in their case indirectly arises for the allegation of the prosecution is that Balwant Singh as manager of the State Bank of Patiala at Kalka and some other co-accused employees of the bank along with other non-employees co-accused, while conducting financial dealings, had committed offence triable under section 5 (1) (d) read with section 5(2) of the Prevention of Corruption Act and section 123-B read with section 420, Indian Penal Code. Despite the death of Balwant Singh, the question still sought to be raised is whether Balwant Singh, and other bank employees (co-accused) were public servants within the meaning of section 21, clause twelfth (b) of the Indian Penal Code as such an objection was taken before the trial Judge and on his answering the question against the accused gave is to twelve petitions. So the question in any case has to be decided.;