Lallan Choubey v. Public Prosecutor — 1989 DIGILAW 90 (PAT)

Judgment S. H. 8. Abidi, J. 1. The petitioner has come to this Court under Sec.482 cr. P. C. quashing the order of cognizance dated 4-4-1978 passed by the learned sessions Judge, Dhanbad, in Session Case No.77 of 1978 under Sec.500 of the Indian Penal Code which is now pending in the court of the learned IVth addl. Sessions Judge, Dhanbad. 2. It appears that a complaint was filed by the then public prosecutor late j. B. Lala in the court of the learned Sessions Judge on 3-4-1978 saying that one S. R. Gope, the then Coaj Mines Provident Fund Commissioner was appointed by the Central Government under Sec.3-C (i) of the Coal Mines Provident fund and Miscellaneous Provisions Act, 1948 (in short the Act of 1948 ). The petitioner published a news item as the Editor of sandesh Suman making wild, deliberate and false allegations that there was nepotism, favouritism and casteism in the appointment of lower Division Clerks in the office of the Coal Mines provident Fund by the said Commissioner. It was also said that two Clerks were appointed on an undertaking of payment of Rs.5,000 each, out of which rs.2500 were paid in advance and the rest were to be paid in due course of time and that when they did not pay the balance of the amount their services were terminated. It was turthar said in the complaint that the said report was published with imputation and with an intention to harm the reputation of the Mines commissioner, S. R. Gope. The complaint mentioned that the sanction of the central Government as required under Sec.199 (4) Cr. P. C. has been obtained which was enclosed with the complaint petition. The learned Sessions Judge passed the impugned order dated 4-4-1978 taking cognizance of the offence under Sec.500 I. P. C. against the petitioner after hearing the Additional p. P. and seeing the complaint petition. The accused was then summoned for appearance on 29-5-1978. The petitioner appeared and was granted bail. No witness was said to have been examined so the petitioner came to this Court on 22-7-1985 against the said order of cognizance. 3. Learned counsel for the petitioner jurged that the public servant in the employment of a corporate body under statute or under the Government Company cannot get the benefit of Sec.199 (2) Cr. No witness was said to have been examined so the petitioner came to this Court on 22-7-1985 against the said order of cognizance. 3. Learned counsel for the petitioner jurged that the public servant in the employment of a corporate body under statute or under the Government Company cannot get the benefit of Sec.199 (2) Cr. P. C. as he cannot be considered to be engaged in the affairs of the Union and the State. He has referred to and relied upon the two decisions one in the case of S. S. Dhanoa V/s. Municipal corporation Delhi, AIR 1981 SC 1395 ; 1981 (3) SCC 431 and the other decision of a learned single judge in the case of 5. Dashrath Rami Ready V/s. A. H. Dara, 1980 Cr LJ 377. 4. To appreciate this contention of the learned counsel it will be relevant to refer to the provisions contained in Sec.199 (2) Cr. P. C. According to this section of the Code of Criminal Procedure the Public Prosecutor can file a complaint against a person who at the time of such commission of the offence bv the accused is either the President of India, Governor of the state, Administrator of a Union Territory or a minister of the Union or a State or a Union territory or any other public servant employed in connection with the affairs of the Union or the State in respect of his conduct in the discharge of his public function. 5. The appointment of the petitioner as a Provident Fund Commissioner is under the provisions of Sec.3-C (i) of the Act of 1948 which says that the central Government shall appoint a Coal Mines Provident Fund Commissioner who shall be the Chief Executive Officer of the Board and shall be subject to the general control and superintendence of the Board. Further Sec.3-C (4) of the Act of 1948 mentions that the method of recruitment, salary and allowances, discipline and other conditions of service of the Coal Mines Provident Fund commissioner shall be such as may be specified by the Central Government. and such salary and allowance shall be paid out of the Fund, (Coal Mines Provident fund Scheme Fund ). 6. and such salary and allowance shall be paid out of the Fund, (Coal Mines Provident fund Scheme Fund ). 6. Section 3 of the Act of 1948 provides for the Coal Mines Provident fund Scheme to the effect that the Central Government may by notification in the Official Gazette, frame a scheme to be called the Coal Mines Provident Fund scheme for the establishment of a provident fund for employees and specify the coal mines to which the said scheme shall apply and the said fund shall vest in, and be administered by, the Board constituted under Sec.3-A of the Act. This Sec.3-A of the Act of 1948 says "the Central Government may, by notification in the Official Gazette, constitute, with effect from such date as may be specified therein, a Board of Trustees for the territories to which this Act extends consisting of (a) a Chairman appointed by the Central Government, (b) the Coal mines Provident Fund Commissioner ex-officio, (c) three persons appointed by the Central Government, (d) not more than six persons representing Governments of such States as the Central Government may specify in this behalf from time to time appointed by the Central Government, (e) six persons representing employers, appointed by the Central Government and (f) six persons representing employees appointed by the Central Government after consultation with such organisations of the employees as may be recognised by the Central Government in this behalf. This Board is to perform such function as may be required to perform under the provisions of the Coal Mines Provident Fund Scheme. Sec.3-B of Act of 1948 further says that the Board of Trustees constituted under Sec.3-A shall be a "body corporate" under the name specified in the notification constituting it, having perpetual succession and a common seal and shall bv the said name sue and be sued. Thus the appointment of the Coal Mines commissioner is in accordance with the provisions of the statute and the Board of Trustees shall be body corporate. 7. Section 21 IPC mentions the various persons who ought to be treated as public servant. Thus the appointment of the Coal Mines commissioner is in accordance with the provisions of the statute and the Board of Trustees shall be body corporate. 7. Section 21 IPC mentions the various persons who ought to be treated as public servant. The 12 Clause of the said Section reads as follows ; every person (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government ; (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or state Act or a Government Company as defined in Sec.617 of the Companies Act 1956 (1 of 1956 ). 8. In the case of 5. S. Dhanoa V/s. Municipal Corporation Delhi, (supra)wherein the question involved was as to whether the Joint Commissioner, an i. A. S, Officer, in the Ministry of Agriculture, Government of India, whose services were placed at the disposal of the department of co-operation for his appointment as General Manager, Super Bazar, Cannaught Place, New Delhi, could be prosecuted under Sec.7 read with Sec.16 of the Prevention of food Adultration Act, 1954 without the sanction of the Central Government, and whether he was a public servant under Sec.21 of the Indian Penal Code, the Supreme Court observed at page 436 para 7 (SCC) : "clause Twelfth does not use the word "body corporate" and the question is whether the expression "corparation" contained therein taken in collocation of the words "established by or under a Central, provincial or State Act" would bring within its sweep a co-operative society. Indubiatably, the Co-operative Store Limited is not a corporation established by a Central or State Act. The crux of the matter is whether the word under occuring in clause Twelfth of section 21 of the Indian Penal Code makes a difference. Does the mere act of incorporation of a body or society under a Central or a State Act make it a corporation within the meaning of clause twelfth of Sec.21 In our opinion the expression corporation, must in the context mean a corporation created by the legislature and not a body or society brought into existence by an act of a group of individuals. A co-operative society is, therefore, not a corporation established by or under an Act of the Central or State legislature. A co-operative society is, therefore, not a corporation established by or under an Act of the Central or State legislature. " Again at page 438 in para 9 the Supreme Court observed : "corporation, in its widest sense, may mean any association of individuals entitled to act as an individual. But that certainlly is not the sense in which it is used here. Corporation established by or under an Act of Legislature can only mean a body corporate which owes its existence, and not merely its corporate status, to the Act. For example, a Municipality, a Zila Parishad or a Gram Panchayat owes its existence and status to an Act of Legislature. On the other hand, an association of persons constituting themselves into a Company under the Companies Act or a Society under the Societies registration Act owes its existence not to the Act of Legislature but to acts of parties though, it may owe its status as a body corporate to an Act of Legislature. " 9. In the case of Oriental Bank of Commerce and another V/s. Delhi Development Authority and others, 1982 Cr. LJ 2230 a division Bench of Delhi High court on a reference arising out of a Criminal Rev. No.259/81 in reunder section 14 read with Sec.59 (2) of the Delhi Development Act, 1957 where the question of sanction for prosecution launched by the Additional Secretary, pro-secution, of the Delhi Development Authority against the accused was involved, considered the question of public servant and corporation and after referring to the observations made by their Lordships of the Supreme Court in the case of s. S. Dhanoa V/s. Municipal Corporation Delhi (supra) observed at page 2242 (para 22): "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 "presonified institutions". After referring to the decision in Kurian V/s. State of Kerala (supra) wherein the Central Bank of India was held to be a corporation within the meaning of section 21 IPC the learned Judges of the Delhi High Court observed at page 2246 (para 31): "as regards whether a nationalised Bank is a corporation or not, with "utmost respect, I disagree with observations made in Kurian 1982 cr LJ 780 (Ker) (supra ). The learned judges have given no reason for their view, as I have attempted to do, as to why I consider that though the nationalised Bank is a body corporate, it is not a corporation within the meaning of Sec.211. P. C. " 10. The learned single judge of Punjab and Haryana High Court in the case of Kundan Lal Sharma V/s. State of Punjab, 1985 Cr. LJ 1411 wherein the petitioner Kundan Lai Sharma was a Branch Manager of the United Commercial bank and was sent up before the learned Special Judge, Patiala, to stand trial under Sec.5 (i) (d) of the Prevention of Corruption Act and Sections 420,467, 468 and 471 read with Sec.120-B I. P. C. , dealt with the contention of tne learned counsel for the petitioner that the petitioner was not a public servant under Sec.21 I. P. C. and so he could not be tried by the learned Special judge and further that the nationalised Bank is just a corporate body and not a corporation. Reference was made to the judgments in the case of Oriental Bank of Commerce Delhi (supra) and also in another case of Raghunath Roy Kumar, bombay V/s. B. M, Khanna Delhi, 1983 Cr. LJ NOC 154. The learned counsel for the State had challenged the soundness of the view propounded by the Delhi High court on the basis of the decision in S. C. Agrawal V/s. State of U. P. , 1979 ALJ 922 and the decision in Kurian y. State of Kerala (supra ). The learned single judge after referring to the decision of Oriental Bank of Commerce V/s. Delhi development Authority (supra) observed in para as 13, 14 and 15 as follows : "thus, it is obvious that the intendment of the statute is to be seen and not merely the science of lawjurisprudence. The learned single judge after referring to the decision of Oriental Bank of Commerce V/s. Delhi development Authority (supra) observed in para as 13, 14 and 15 as follows : "thus, it is obvious that the intendment of the statute is to be seen and not merely the science of lawjurisprudence. As it appears to me, when the Acquisition Act envisaged for each new corresponding bank a Board of Directors, whether the first Board of Directors under Sec.7 or the subsequent Board of Directors under the scheme of Sec.9, it had clearly established separate corporations and conferred on them the corporate character. Strength can be drawn to this conclusion from the interchangeability of the words body corporate and corporation as these have to find way, as said earlier, in the Acquisition Act. Thus the creation of a body corporate under sub-section (4) of Sec.3 is the creation of a corporation with corporate character. If that is so, the petitioner wouid squarely fall within the ambit of the expression public servant since he was in the service ar pay of a corporation established by or under a Central Act and not a personified institution a concept allien to the British soil and necessarily to ours carrying the legacy. In the same strain with due respect to M. L. Jain J. , I differ with the view expressed by him in Raghunath Roy Kamars case (supra) 1983 Cr. LJ NOC 154 (Delhi) (supra) support to the view above taken is also available from the observations of O. Chinnappa reddy, J. in a Division Bench judgment of this Court in Lachhman doss Aggarwal V/s. Public National Bank, (1977) 2 Serv LR 565 : 1978 Lab IB 423. Spelling out the provisions of the Acquisition act their Lordships observed "that the Government instead of itself carrying on the business of banking, as it certainly is entitled to, has chosen to carry on the business through the instrumentality of Punjab national Bank and other corresponding new banks, created by the stature and wholly owned by the Government. It is state action through bodies corporate, owned bodyscul (if such an expression may be used) by the State. " Though this was said in the context of authorities within the meaning of Article 12 of the Constitution but they are meaningful to understand the character and status of the nationalised banks. It is state action through bodies corporate, owned bodyscul (if such an expression may be used) by the State. " Though this was said in the context of authorities within the meaning of Article 12 of the Constitution but they are meaningful to understand the character and status of the nationalised banks. Their lordships further said that the corresponding new banks were the creatures of the statute and were not companies incorporated under Indian Companies Act as is clear from section 11 of the Act. "14. In Kurians case 1982 Cr LJ 780 (supra) a Division Bench of the kerala High Court, held that an employee of a nationalised bank was a public servant within the ambit of Sec.21 of the Penal code. It was held that since the Central Bank of India became a bank of which the entire share capital vested in the Central Government, it followed that a person in the service or pay of the Central bank of India was a public servant within the definition of the term in Sec.21 of the Penal Code. Similarly a Single Bench of the Allahabad High Court in S. C. Agarwals case 1979 All LJ 922 (supra) held on first principles that in view of the Acquisition Act the now corresponding bank became a corporation established by the central Government and thus an employee of the Union Bank of india was a public Servant within the meaning of Clause 12 (b) of section 21 which lays down that every person in the service or pay of a corporation established by or under a Central Act is a public servant. The Hon ble judge went on to the length of observing that "alternatively even if the corresponding bank was treated to be a company it would be a Government company as defined in Section 617 of the Companies Act and its employee is a public servant within the meaning of Clause 12 (b) of Sec.21 which lays down that every person the service or pay of a Government Company as defined in Sec.617 of the Companies Act is a public servant. " "16. " "16. Lastly, to be fair to be learned counsel for the State, I need notice the view of the Supreme Court in relation to the interpretation of the provisions of the Corruption Act in the light of the amendments made in Sec.21 of the Penal Code in the years 1958 and 1964. They are available in the State of Madhya Pradesh V/s. M. V. N narasimhan, AIR 1975 SC 1835 : 1975 Cri. LJ 1639. Their Lordships have held that the Prevention of Corruption Act being a social legislation, its provisions must be liberally construed so as to advance the object of the Act. With regard to the amendments, they observed that this can only be done if an extended meaning can be given to the term public servant as referred to in Sec.2 of the Act by applying the enlarged definition contained in Clause 12 inserted in the Penal Code by the two amendments referred to earlier. Also taking cue therefrom, it is my considered view that liberal construction has to be put on words body corporate and corporation using them interchangeably in the context of the acquisition Act, so that the employees of the corresponding new banks and betreated as pblic servants for the purposes of Sec.21 i. P. C. bringing them within the meaning of section 5 of the Corruption Act to be tried by a Special Judge for misconduct committed by them. 11. Thus in the light of these observation it is clear that a corporation can be brought into existence by a Central or the State Statute. A corporation established by or vnder the Act of legislation can only mean a body corporate. It is not like the company under the Companies Act or the society under the Society registration Act which does not come into existence on account of an Act of legislature. The statute provides as to who will constitute the corporate body. The human ubstratum is specified by the statute for this separate, distinct, invisible official, fictional and legal entity which can sue and which can be sued and which has its own independent seal and perpetuity. The statute provides as to who will constitute the corporate body. The human ubstratum is specified by the statute for this separate, distinct, invisible official, fictional and legal entity which can sue and which can be sued and which has its own independent seal and perpetuity. "the doctrine that a corporation has a separate legal entity of its own is so firmly rooted in our notions derived from common law that it is hardly necessary to deal with it elaborately" are the observations of the Supreme Court in the case of Andhra Pradesh State road Transport Corporation by its Chief Executive Officer, Hyderabad V/s. The income Tax Officer B.1. B. Ward Hyderabad and another, AIR 1964 SC 1486 at 1492 para 17. Further a corporate and a corporate body are interchangeable and non use of the word body corporate in Clause 12 of Sec.21 of the Penal code will not make a body corporate out of the ambit of the corporation. So the body corporate will mean a corporation under the said Clause. Here "the board of Trustees" which has been created has been referred to as "corporate body" in Sec.3-C of the Act. Thus an employee of this "body corporate" is a public servant. 12. Though Sec.3-C (4) of the Act of 1948 says that salary and allowance of the Coal Mines Provident Fund commissioner shall be such as may be specified by the Central Government and such salary and allowances shall be paid out of the Fund, but it does uot mean this payment will necessarily establish the relationship of master and servant between this corporate body and the Commissioner in the case of M. Karunanidhi V/s. Union of India, air 1979 SC 898 the supreme Court dealing with the case of a public servant under Sec.21 Clause 12 I. P. C. , which provided that every person in service or pay of the government or remunerated by office or commission for the purpose of any public duty by the Government shall be deemed to be a public servant, observed at page 912 (para 47 ). "a careful analysis of the meanings assigned to the word pay in the various dictionaries and the texts referred to above would clearly reveal that the expression in the pay of connotes a person is getting salary, compensation wages or any amount of money. "a careful analysis of the meanings assigned to the word pay in the various dictionaries and the texts referred to above would clearly reveal that the expression in the pay of connotes a person is getting salary, compensation wages or any amount of money. This by itself however does not lead to the inference that a relationship of master and servant must necessarily exists in all cases where a person is paid salary. " 13. Further Sec.3-C of the Act says that the Central Government will appoint Coal Mines Provident Fund Commissioner who shall be a Chief executive Officer of the Board and shall be subject to the general control and superintendence of the Board and sub-section (4) of Sec.3-C of the Act provides for the method of recruitment, salary allowances, discipline and other conditions of the service of the Commissioner. Thus the appointment is made by the Central Government and the method of recruitment salary and allowances and disciplines and other conditions of the service are provided by the Central government, although being the Chief Executive Officer of the Board he shall be subject to the general control and Superintendence of the Board. Thus the Board has got no power of appointment and it is only the Central Government which has power. In the case of Hargovind V/s. Raghukul Tilak and others, AIR 1979 sc 1109 while the Supreme Court was dealing with the validity of the appointment of the Governor of Rajasthan, referred to two decisions of the Apex Court in Pradyat Kumar Base V/s. The Hon ble Chief Justice of Calcutta High Court, air 1956 SC 285 and Baldev Raj Gulani V/s. Punjab and Haryana High Court, (1977) 1 SCR 425 : AIR 1976 SC 2490 wherein the question involved was applicability of Article 320 (3) (c) of the Constitution of India to the officers of the State. Their Lordships of the Supreme Court in respert of first referred judgment of Pradyat Kumar Base (supra) said "this Court, speaking through jagannadhadas, J. pointed out" : the phrase "a person serving under the Government of India or the government of a State seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Governments functioning in the name of the President or of the governor or of a Rajpramukh. The officers and the staff of the High Court cannot be said to fall within the scope of the above phrase because in respect of them the administrative control is clearly vested in the Chief Justice. " for the second case of Baldev Raj Guliani V/s. Punjab and Haryana High court (supra) their Lordships of the supreme Court quoted the following observations in the judgment observing "just as the High Court staff are not serving under the Government of the State, the Judicial Officers are also not serving under the State Government", because they are "entirely under the jurisdiction of the High Court for the purpose of control and discipline. " Thereafter their lordships observed in the case of Hargovind V/s. Raghukul (supra) as follows "it will therefore, be seen that the employment can be aid to be under the Government of India if the holder or incumbent of the employment is under the control of the Government of India vis-a-vis such employment. "thus this Provident fund Commissioner, though is paid out of the Coal Mines Fund, and is also under the general control and superintendence of the Board is yet under the control of the Government of India for his employment. For all this also he is a public servant. 14. Learned counsel for the petitioner has also contended that it is not enough that the public servant should be in the employment of the body corporate under the statute but he should be engaged in the affairs of the Union or the State as provided under Sec.199 (2) Cr, P. C. and that the Provident Fund commissioner is not employed in the affairs ot the State or the Union, so no benefit accrues to him uuder Sec.199 (2) Cr. P C. and the complaint is not entertainable. As to this contention, Sec.197 (2) no doubt provides that the public servant should be employed with the affairs of the State. In the case of dashratli Kami Reddy (supra) reference was made to a decision of Division bench of the High Court of Andhra Pradesh in L. Potha Raju V/s. Food Inspector, 1975 APLJ 189 wherein the Division Bench of the court had considered the scope and ambit oi Sec.197 (l) (b) of the Code. In the case of dashratli Kami Reddy (supra) reference was made to a decision of Division bench of the High Court of Andhra Pradesh in L. Potha Raju V/s. Food Inspector, 1975 APLJ 189 wherein the Division Bench of the court had considered the scope and ambit oi Sec.197 (l) (b) of the Code. The learned single judge observed at page 377 : "in other words, under Sec.199 (2) of the Code, it is not enough if a person aggrieved by commission of any offence included in Chapter xxi of the Indian Penal Code is a public servant. He must also establish that he is a public servant employed in connection with the affairs of the State. Sec.199 (2) being a special provision intended to protect the high dignitaries and other public servants employed in connection with affairs of the Union or a State, the conditions laid down therein for invoking the protection must be strictly fulfilled. The satisfaction of the requirements contained in section 199 (2) of the Code should be with reference to the position which the public servant at the relevant time of the commission of the offence alleged by him occupied. Admittedly at the relevant time, when the respondent published the defamatory article, P. W.8 the aggrieved, was the Block Development Officer, on gole Panchayat samithi. Every Panchayat Samithi, it is not denied, is a body corporate having perpetual succession and common seal.2. Following the decision of the Division Bench of the High Court of andhra Pradesh, it must be held -that at the relevant time P. W.8 was not a public servant employed in connection with the affairs of the State Mr. Padmanabha Reddy. learned counsel for the respondent very fairly brings to my notice that the correctness of the decision of the Division Bench was doubted by the Hon ble Mr. Justice Sambasivarao (as he then was) in Dr. A. S. Rao V/s. C. N. N. Kutty, (1972) 2 PLJ 219. I must, however, observe that in the case decided by the Division Bench the learned Judges dealt with the positions and capacities occupied and held by the petitioners therein while manning certain Co-operative Societies. Justice Sambasivarao (as he then was) in Dr. A. S. Rao V/s. C. N. N. Kutty, (1972) 2 PLJ 219. I must, however, observe that in the case decided by the Division Bench the learned Judges dealt with the positions and capacities occupied and held by the petitioners therein while manning certain Co-operative Societies. In the instant case, p. W.8 was at the relevant time Block Development Officer of the panchayat Samithi, a body corporate I, therefore consider it unnecessary to examine the soundness or otherwise of the reasoning adopted by Sambasivarao, J. (as he then was) doubting the earlier decision of the Division Bench of the High Court. The acquittal of the respondent is therefore, confirmed and the appeal preferred by the State is accordingly dismissed Before parting with the case, I must however, observe that such remedies as re-open and available to P. W 8 he may pursue, if so advised. " 15. Form the above case it appears that the Division Bench was dealing with capacities and positions occupied and held by the petitioners therein while manning certain co-operative societies. Here in the instant case the position is quite different. It is not a co-operative society under the Societies Registration Act, but it is a Board created under the statute and a corporate body. So the observations made in the division Bench case may not apply. Yet fact remains that section 197 (2) provides that the officers should be a public servant and employed in connection with the affairs of the State. Corporations or the corporate bodies are expected to fulfill the objects for which they are created and those objects are definitely provided under the statute. The Act of 1948 has been brought into statute book to make provisions for the framing of a provident fund scheme and a pension scheme. Family Pension Scheme, a Deposit Linked insurance Scheme and a Pension Scheme for the persons employed in the coal mines. Sec.3 of Act of 1948 says that the Central Government may by notification in the Official Gazette, frame a scheme to be called the Coal Mines provident Fund Scheme for the establishment of a provident fund for employees and specify the coal mines to which the said scheme shall apply and for that purpose the Central Government will constitute the Board of Trustees as seen above under Sec.3-A of the Act of 1948. The Board under Sections 3-A (3)and (4) is required to administer the fund vested in such manner as may be specified in the scheme and the Board shall perform such other functions as it may be required to perform by or under any provisions of the coal mines scheme the provident Fund Commissioner, as said under Sec.3-C of the Act of 1948, is the Chief Executive Officer of the Board. Thus this Chief Executive Officer of the Board has to perform the duties specified by the statute uuder the scheme. 16. The Supreme Court in the case of Dattatraya Narayan Patil V/s. The state of Maharashtra, AIR 1975 SC 1685 wherein the question involved was as to whether a Minister presiding over the meeting of the District Advisory Committee under the Government notification was performing his duty as public servant, observed at page 1688 (para 8) "the duty assigned to a public servant by his master, be it under a statute or by an executive order will assume the character of public duty, Provided the duty assigned is not illegal or against public policy. "these observations were quoted with approval in the case of m. Karunanidhi V/s. Union of India (supra) at page 914 (para 51 ). Thus in this way the Commissioner performing his duties under the statute is performing a public duty. 17. In the case of Oriental Bank of Commerce and another V/s. Delhi dovelopment Authority and others (supra) while considering the question of office and duties of the employees of the Bank for the purpose of the Article 12 of the constitution of India it was observed at page 2244 in paras 26 and 27 : "in Smt. Kanta Kathuria V/s. Manak Chand Surana, AIR 1970 SC 694 , and Statesman (P) Ltd. V/s. H. R. Deb, AIR 1968 SC 1495 , it was held that office means "a position or place to which certain duties are attached, especially one of a more or less public Character" (vide New English Dictionary ). I would think that the word office occurring in Sec.197 Cr. P. C. should be construed to mean not a private office but a public officean agency for the State the duties of which involve in their performance the exercise of some portion of sovereign power, either great or small, either in making executing or administering the laws (Blacks Law Dictionary 5th edn. ). P. C. should be construed to mean not a private office but a public officean agency for the State the duties of which involve in their performance the exercise of some portion of sovereign power, either great or small, either in making executing or administering the laws (Blacks Law Dictionary 5th edn. ). According to Earl Jowitts Dictionary of English Law a public office is one which entitled a man to act in the affairs of others without their appointment or permission", generally speaking, Banking will be an affair of the Union, if the business of the Banks was directly administered by the Government. Even if such a body being an instrumentality or agency of the State is a State or authority for the purpose of Article 12 of the constitution, yet it cannot be said that the employees of the corporation or its directors are employed in the aifairs or the Union. The construction of Article 12 has to be confined to that Article alone. If the concept were applied too widely, then in the context of the expanded meaning activities of the State, every acticity whether undertaking even by private parties may be called an affair of the Central Government or the State Government, which is a proposition I am not inclined to accept. " 18. In the case of Sukhdeo Singh V/s. Bhagatram Sardar Singh Raghubanshi and another AIR 1975 SC 133) where their lordships of the Supreme Court were dealing with the nature of the corporations namely Oil and natural Gas Commission, Life Insurance and Industrial finance Corporation each of them having been set up under special statute observed at page 1357 (para 111): the crox of the matter is that public corporation is a new type of institution which has sprung from the new social and economy functions of government and that it therefore, does not neatly fit into old legal categories. Instead of forcing it into them, the later should be adapted to the needs of changing times and conditions. Instead of forcing it into them, the later should be adapted to the needs of changing times and conditions. " in the case of Ramano Dayaram Shetty V/s. The International Airport Authority of india and others, AIR 1979 SC 1628 their Lordships of the Supreme Court considered the nature of the corporation and its duties and it as observed at pages 1638 and 1639 (paras 13 and 14) : "now, it is obvious that the Government which represents the executive authority of the State, may act through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of juridical persons to carry out its functions. In the early days, when the Government had limited functions, it could operate effectively through natural persons constitution its civil service and they were found adequate to discharge governmental functions, which were of traditional vintage. But as the tasks of the government multipoled with the advent of the welfare State, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often of specialised and highly technical character. The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handling these new problems. It was in these circumstances and with a view to supplying this administrative need that the public corporation came into being as the third arm of the Government. . . . " ". . . . . . Ordinarily these functions could have been carried out by the government departmentally through its service personnel, but the instrumentality or agency of the corporations was reported to in these cases having regard to the nature of the task to be performed. The corporations acting as instrumentality or agency of Government would obviously be subject to the same limitations in the filed of constitutional and administrative law as Government itself, (though in the eye of the law, they would be distinct and independent legal entitles If Government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that Government acting through the instrumentality or agency of corporations should equally be subject to the same limitations. But the question is how to determine whether a corporation is acting as instrumentality or agency of Government. But the question is how to determine whether a corporation is acting as instrumentality or agency of Government. It is a question not entirely free from difficulty. " further in para 14 at page 1639 it was observed : "what then are the tests to determine whether a corporation established by statute or incorporated under law is an instrumentality or agency of Government It is not possible to formulate an all inclusive or exhaustive test which would adquately answer this question. There is no cut and dried formula which would provide the correct division of corporations into those which are instrumentalities or agencies of government and those which are not. " the Supreme Court considering the aspect of the corporations acting as instrument or agency of the Government began to discuss the nature of the operations of the corporations. It was said at page 1640 (para 16 ). There is also another factor which may be regarded as having a bearing on this issue and it is whether the operation of the corporation is an important public function. It has been held in the united States in a number of cases that the concept of private action must yied to a conception of State action where public functions are being performed. Vide Arthur S. Millar : The Constitutional law of the security state (10 Stenford Law Review 620 at p.664 ). It was pointed out by Dougles, J. in. S. Evans V/s. Charles E. Newton, (1966) 382 US 296 : 15 L Ed.2nd 373 that when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State. Of course, with the growth of the Welfare State. It is very difficult to define what functions are governmental and what are not, because, as pointed out by Villmer, L,j. in Pfizer V/s. Ministry of Health, (1964) 1 Ch 6 4, there has been since mid-Victorian times, "a revolution in political thought and a totally different conception prevails today as to what is and what is not within the functions of government. . " What might have been viewed in an earlier day as an improvident or even dangereous extension of State activities may today be deemed indispensable. . " What might have been viewed in an earlier day as an improvident or even dangereous extension of State activities may today be deemed indispensable. It may be noted that besides the so-called traditional functions, the modern State operates a multitude of public enterprises and discharges a host of other public functions. If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of government. This is precisely what was pointed our by Mathew, J. , in Sukhdev V/s. Bhagatram, AIR 1975 SC 1331 (supra) where the learned judge said that institutions engaged in matters of high public interest or performing public functions are by virtue of the nature of the functions performed government agencies. Activites which are too fundamental to the society are by definition too important not to be considered government function. " 19. In the case of Ajay Hasisa V/s. Khalid Mujib Sehravardi, AIR 1981 SC 487 their Lordships of the Supreme Court again considered the case of the engineering College, a society registered under the jammu and Kashmir Registration of Societies Act as to whether it was an authority within the meaning of article 12 of the Constitution of India. The decision in the case of International airport Authority (supra; was considered and summarised in various paragraphs. In para 16 it was observed at page : "if the functious of the corporation are of public importance and closely related to governmental functions, it will be a relevant factor in classifying the corporation as an instrumentality or agency of government. " their Lordships further observed at page. (Para 110): "we may point out that it is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a government company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies Registration Act, 1860 or any other similar statute. The corporation may be a statutory corporation created by a statute or it may be a government company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies Registration Act, 1860 or any other similar statute. Whatever, be its genetical origin, it would been "anthority" within the meaning of Article 12 if it is an instrumentality or agency of the government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the government so as to come within the meaning of the expression authority in Article 12. " In the recent decision of Tekraj Vasandi alias K. L. Basandhi V/s. Union of India and others, (.1988) 1 SCC 236, considering the nature and the functions of the corporations and the other authorities the Supreme Court quoted the various decisions including the two last above referred decisions and observed at page 254 (para 12): "it is time to turn to the facts of the present case to find out as to what the conclusion should be when the tests formulated by the several cases of this Court referred to above are applied. There cannot indeed be a strait-jacket formula. It is not necessary that all the test should be satisfied for reaching the conclusion either for or against holding an institution to be state. In a given case some of the features may emerge of boldly and prominently that a second view may not be possible. There may yet be other cases where the matter would be on the borderline and it would be difficult to take one view or the other outright. " 20. Thus, from all these it appears that this carporation which has been established under the statute works as an agency or instrument of the Central government. It is subject to the administrative control of the Government and is carrying on the business for the benefit of the public. " 20. Thus, from all these it appears that this carporation which has been established under the statute works as an agency or instrument of the Central government. It is subject to the administrative control of the Government and is carrying on the business for the benefit of the public. The Commissioner of this body corporate, though, is under the general -control and the superintendence of the Board, but its method of recruitment, salary and allowances, disciplines and the other conditions of service ars specified by the Central Government. The duties that are performed by this Commissioner are for the benefit of the public. The duties are public duties which are neither illegal nor against the public policy. He is an employee in connection with the affairs of the Union in respect of his conduct in the discharge of the duties so the P. W.8 the commissioner comes within the protection of Sec.199 (2) Cr. P. C. 21. One of the States duties is to bring the offenders to book. In some cases offences are left to be dealt with by the person aggrieved himself as the injury is confined to that individual alone. But when the resultant injury is in the larger interest of the Society then the State itself moves the machinery of law, without jeopardising the interest of the individual affected by such injury. Even the Judges and public servants are not immuned from the prosecution if they commit offences. To save them from frivolus prosecution and in the interest of the State itself, the provision of previous sanction of the State concerned has been made. Under Sec.197, Cr. P. C. Prosecution against the Judge or public servant is permitted with the previous sanction of the State if the offence is committed in the discharge of his official duty. It becomes open thereafter for the official concerned to show that the offences charged has been committed by him in the discharge of his official duty and so he comes under the umbrella of discharge of official duty: It is known to all that it is no part of official duty to commit offences. An official is not expected to commit offences of bribery, forgery, cheating or assault and if it is found that the offence alleged is not under the cover of the official duty then the official gets his due according to law. An official is not expected to commit offences of bribery, forgery, cheating or assault and if it is found that the offence alleged is not under the cover of the official duty then the official gets his due according to law. With the growth of time needs arose to protect the officials also against the defamation if the allegated offences are committed by them in the discharge of the official duty. Sec.198 (b) was added in the old Code of Criminal Procedure whose equivalent is now in Sec.198 (4) Cr. P. C. in the new Code. 22. In the case of Ramesh Sinha and another V/s. Public Prosecutor, lucknow, AIR.1960 All 763 a learned single Judge observed at page 768 (Para 17): "according to the needs of the society, the legislature, therefore, enacts laws to specify what offences shall be considered to be injuries to the State Principally and the prosecution for them shall be initiated by the State and which others considering the lesser degree of the resultant harm will be left for private action. The provisions of Chapter XV-B has been inserted. Considering the increasing tendency by interested quarters to publish groundless criticism with a view to scandalise the officers and dignatories of the state, the Legislature therefore, enacted the special provisions of section 198-B for taking action against the offenders who commit defamation of such public officers by providing that the complaint shall be filed under Sec.198-B by the public prosecutor also with the sanction of the State Government. This does not mean that the individual defamed has been deprived of his remedy to take action against the offender in his individual capacity. Reading Seection 198-B as a whole, this seems to be the object of the enactment. Sec.198-B (13) Cr. P. C. , has, therefore, been put down to further clarify that henceforth action for defaming a public servant for acts performed by the Government official in the discharge of his duty may be taken by the state Government also but this new provision would not debarred the Government official himself of his own remedy to proceed agains the offender. P. C. , has, therefore, been put down to further clarify that henceforth action for defaming a public servant for acts performed by the Government official in the discharge of his duty may be taken by the state Government also but this new provision would not debarred the Government official himself of his own remedy to proceed agains the offender. " Later a Division Bench of the same court considered the matter in the case of muneshwara Nand V/s. State, AIR 1961 All 24 at page 36 (para 35) and observed : "so much for the law with regard to the act/illegal omission or offence of the public servant in the discharge of his official duty. But in section 198-B we have to deal with his conduct. I am of opinion that parliaments preference for this word over a word like "act" is deliberate. Hence special weight must be given to it. The dictionary meaning of "conduct" is "behaviour, usually with more or less reference to it moral quality, good or bad ; manner of conducting onseself or ones life ;" quite obviously, its compass is very wide, and its far more comprehensive than a mere act or illegal omission. Incidentally, much more than an act, conduct can be in respect of performance of official duty as well as in direliction thereof. Hence for applying Sec.198-B to any imputation we must concentrate not so much on the public functions as on the alleged conduct of the official concerned, more so because the injury caused by defamation is essentially a moral one inasmuch as by its very nature this offence lowers the victim in the estimation of others. " in these circumstances the conclusion becomes irresistible that the phrase "conduct in the discharge of his public functions" occurring in section 198-B covers a vaster field than what has been held by the supreme Court in examining Sec.197 (1 ). It is the combined effect of the intendment of Parliament, the use of word "conduct" as just explained and the extended meaning given by the Supreme court to "act in the discharge of official duty" that markedly augements the scope of Sec.198-B (1 ). It is the combined effect of the intendment of Parliament, the use of word "conduct" as just explained and the extended meaning given by the Supreme court to "act in the discharge of official duty" that markedly augements the scope of Sec.198-B (1 ). Accordingly, in my judgment the true state of the law is that if there is any defamatory statement concerning the behaviour of a public servant which can be reasonably associated with the discharge or non-discharge of his official duty even if not strictly necessary for that discharge, or relating to his conduct which bears such rational though not pretended or fanciful relation to the duty that it appears to have been displayed in the course of the performance or non-performance of the duty, the behaviour or conduct having reference inter alia to its moral quality, it would immediately attract the operation of Sec.198-B. To put it differently in the phraseology of Sec.99 I. P. C. , if in the imputation the conduct of the official is made to appear as stemming from the "colour of his office" even if it may not be strictly justifiable by law", the provisions of Sec.198-B will apply. On the other hand, if the imputation alludes to behaviour or conduct which relates to his life as a private citizen or which does nothing on his public functions, even though his office might have furnisned the excuse or occasion for it, the section will have no relevance. No hard and fast rules can, however, be laid down, and in each case the imputation will have to be dealt who on its own facts and circumstances. " the Supreme Court in the case of Bhagwan Prasad Srivastava V/s. N. P. Mishra, air 1970 SC 1662 : 1970 Cr LJ 1401 in connection with the sanction under section 197 Cr. P. C. considered the difference between the Act and duties in the discharge of official duty of a public servant and also his protection by the provisions of law. P. C. considered the difference between the Act and duties in the discharge of official duty of a public servant and also his protection by the provisions of law. It was observed in para 4 : "the larger interest of efficiency of State administration demands that public servants should be free to perform their official duty fearlessly and undeterred by apprehension of their possible prosecution at the instance of private parties to whom annoyance or injury may have been caused by their legitimate acts done in the discharge of their official duty This section is designed to facilitate efiective and unhampered performance of their official duty by public servant by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their presecution as a condition precede to the cognizance of the cases against them by the courts. It is neither to be too narrowly construed nor too widely. The narrow and pedantic construction may render it other for it is no part of an official duty-and never can be, to commit an offence. In our view, it is not the "duty" which requires examination so much as the "act" because the official act can performed both in the discharge of the official duty as well as in dereliction of it. " further in para 6 it was observed : "as suggested by this Court in Prabhakar V. Sinari V/s. Shankar Anant verlekar, Criminal Appeal No.152 of 1967, D/29-11-1963 : reported in AIR 1969 SC 686 , it would be open to the appellant to place material on the record during the course of the trial for showing what his duty as Civil Surgeon was and also that the impugned acts were interrelated with his official duty so as to atrract the protection afforded by Sec.197 Cr. P. C. , we do not find any material on the existing record suggesting that the impugned acts were done by the appellant in the discharge of his official duty or that they are directly connected with it. " 23 ). Thus, whether the conduct of the official in the discharge of his public functions on account of which defamation has been caused, was performed by him in his official capacity or in private capacity is a question of fact for which evidence is to be laid before the trial court. " 23 ). Thus, whether the conduct of the official in the discharge of his public functions on account of which defamation has been caused, was performed by him in his official capacity or in private capacity is a question of fact for which evidence is to be laid before the trial court. Then it will be for the trial court to asses the same and arrive at a conclusion one way or the other. Without any evidence if a conclusion for or against is reached then it will be denial of justice to the official as well as the offender. For the exercise of its inherent powers under Sec.482 Cr. P. C. or in a revision under Sections 397 and 401 cr. P. C. the High Court will need a concluded evidence and will not take evidence like a trial court. It is only in those cases in which if the allegation on the complaint are taken without adding or substracting anything that it can be said that no prima facie case for trial has been made out then the court will exercise this inherent jurisdiction. But when for the exercise of the power evidence is required and the allegations in the complaint are not sufficient for the purpose of decision then definitely the court will have to send the matter to the court below. Even in the latest decision in State of Bihar V/s. Murad Alt Khan, 1989 PLJR 6 : (1988) 4 SCC 655 : 1985 BLJ 168 (SC) in paragraph 15 the supreme Court has said : "it is trite that jurisdiction under Sec.482, Cr. P. C. which saves the inherent power of the High Court to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court should not embark upon an inquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction. In exercising that jurisdiction the High Court should not embark upon an inquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction. On thing, however, appears clear that it is that when High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of magistrate taking cognizance of an offence, the High Court is guided by the allegations, where those allegations, set out in the complaint or charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would in the circumstances amount to an abuse of the process of the court or not. " 24. Looking to Sec.199 (5) of the Code it appears that it is only the court of Sessions where the complaint is to be filed by the Public Prosecutor. The supreme Court in the case of P. C. Joshi and another V/s. The State of Uttar pradesh, AIR 1961 SC 387 : 1961 Cr LJ 566 observed in para 7 : "the complaint by the Public Prosecutor would undoubtedly be in the court of Sessions. " a Division Bench of the Allahabad High Court in the case of Badri Prasad guptas. Kripa Shanker Tewari, AIR 1967 All 468 : 1967 Cr LJ 1255 observed in para 11 at page 1257 (Cr. LJ ). "ball was set rolling in this case before the Court of a Magistrate by the complaint of the appellant. Thereafter the proceedings continued before him and ultimately he thought it fit to commit the accused to stand his trial before the Court of Session. By the committing of the accused to stand his trial in this manner the proceedings did not terminate. They continued before the court of Session and the continuity having not been broken, the case does not cease to have been instituted up on a complaint. The proceedings before the sessions Judge were not fresh proceedings or proceedings apart from those before the Magistrate. They were a continuation of the proceedings before the Magistrate and if they were instituted before the Magistrate upon complaint, their nature would not change by the accused being committed to the Court of Session. The proceedings before the sessions Judge were not fresh proceedings or proceedings apart from those before the Magistrate. They were a continuation of the proceedings before the Magistrate and if they were instituted before the Magistrate upon complaint, their nature would not change by the accused being committed to the Court of Session. Proceedings under Sec.198-B Cr. P. C, take their birth in the Court of session itself on a complaint. Proceedings for which the accused is committed to stand his trial before the Court of Session, continue before that court on committal but they have already taken their birth at an earlier stage before a magistrate in one or other of the modes provided in Sec.190, Cr. P. C. 25. Thus, this complaint as provided under Sec.199-B of the Code ought to have been filed before the learned Sessions Judge who would have proceeded with the same even without committed. No doubt a Sessions Judge cannot try a case unless it is committed to it by a Magistrate as provided under the code of Criminal Procedure, but on account of the non-obstante clause notwithstanding anything contained in this "code" in Sec.199 (2) of the new code the provisions of the Code of Criminal Procedure are to be by-passed in respect of a committal proceeding and the Sessions Judge is to try the case even without a committal proceeding to it by a Magistrate. Even if the present complaint has been filed before a Magistrate and cognizance has been taken ; the case can be sent to the Court of Sessions for trial. The taking of cognizance is an act of the court by which it decides to proceed with, the case and issue notice to the accused. This taking of the cognizance will not come in the way of the case being sent by the learned Magistrate in the Court of session who will try the same in accordance with the provisions of law 26. There is another aspect of the matter argued by the learned counsel for the State about the complaint if at all, to be filed by the defamed person. The defamed persons right is not barred. He has got right to file complaint under Sec.198 and if it is filed then it can be entertained in accordance with law. There is another aspect of the matter argued by the learned counsel for the State about the complaint if at all, to be filed by the defamed person. The defamed persons right is not barred. He has got right to file complaint under Sec.198 and if it is filed then it can be entertained in accordance with law. If the complaint is filed by the defamed person and also this present complaint by the public prosecutor is pending then the complaint tiled by the public prosecutor will remain stayed till the complaint of the defamed person is committed to the Court of Session and if it is committed then both the complaints will proceed together and not simultaneously as is not the purpose of law that a man should be proceeded against in respect of the same offence more than once. 27. In the result the impugned order of the learned Magistrate is upheld. It will be for learned Magistrate to send the case to the Court of Sessions where it will proceed in accordance with law. This application is, therefore, dismissed. The interim order, dated 23-7-1985 is vacated. The lower courts records are directed to be sent to the court below as early as possible for disposal of the case in accordance with law, application dismissed.