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Himachal Pradesh High Court · body

2016 DIGILAW 722 (HP)

Anil Kumar v. State of H. P.

2016-05-09

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant petition stands preferred by the petitioner herein for quashing of FIR No. 81 of 10.3.2009, under Sections 353, 332, 34 of IPC, with Police Station, Nurpur, District Kangra, H.P. 2. The short ground which stands addressed before this Court for quashing of FIR aforesaid stands anvilled upon the factum of the offence constituted against him under Section 332 of the Indian Penal Code standing unavailable to stand cast by the prosecution against him on the ground of respondent No.2 herein not at the time apposite to the occurrence being either a ‘public servant’ or performing public duties. He proceeds to submit that respondent No.2 herein is merely a driver engaged by HRTC, employees whereof do not fall within the ambit of the definition of a ‘public servant’ as embodied in Section 21 of the Indian Penal Code, relevant portion whereof stands extracted hereinafter. He thereupon contends of no offence under Section 332 of Indian Penal Code standing constituted against him. “ ……………………….. Twelfth-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 denied in section 617 of the Companies Act.” 3. A bare reading of the apposite provisions of Section 21 of the Indian Penal Code unravels of its embodying therein the categories of persons who fall within the ambit of ‘public servant’ besides unfolds the apparent fact of any employee in whatever capacity performing service or drawing pay from a local authority, a corporation established by or under a Central Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956 standing encompassed within the ambit of the definition of a ‘public servant’. Obviously with respondent No.2 herein standing engaged as a driver by the HRTC, the latter being a juristic entity owning its existence to a legislative enactment nomenclatured as “the Road Transport Corporations Act, 1950”. Obviously with respondent No.2 herein standing engaged as a driver by the HRTC, the latter being a juristic entity owning its existence to a legislative enactment nomenclatured as “the Road Transport Corporations Act, 1950”. Consequently with respondent No.2 standing engaged as a driver by HRTC, a juristic entity constituted by a legislative enactment nomenclatured as “the Road Transport Corporations Act, 1950’, as a corollary with respondent No. 2 drawing pay from a corporation established by a statute besides his being in service of a corporation whose juristic existence has sprung from a legislative enactment renders respondent No.2 to be a ‘public servant’. Consequently if any penal misdemeanor within the ambit of Section 332 of IPC stood committed by the petitioner upon respondent No.2 prima-facie rendered attractable qua the petitioner herein the penal consequences spurring from his allegedly committing the aforesaid penal misdemeanor. The learned counsel for the petitioner cannot with any force contend of respondent No.2 being merely an employee of HRTC would not render him to come within the ambit and definition of a public servant whereupon his concert to exculpate his incriminatory role if any constituted under Section 332 of the Indian Penal Code, being liable for its standing discountenanced by this Court. 4. Further more the learned counsel for the petitioner has also placed reliance upon a verdict of the Hon’ble Apex Court reported in AIR 1998 SC 1945, Mohd. 4. Further more the learned counsel for the petitioner has also placed reliance upon a verdict of the Hon’ble Apex Court reported in AIR 1998 SC 1945, Mohd. Hadi Raja versus State of Bihar and another, the relevant paragraph whereof which stands extracted hereinafter, though underscoring the factum of the statutory protection available under Section 197 of the Code of Criminal Procedure to a public servant other than the ones in the employment or of drawing pay while in service of government companies or public undertaking besides making being a loud communication of officers, employees of government companies or employees of a public undertaking standing stripped of entitlement to receive the protection envisaged in Section 197 of Cr.P.C., for acts performed by them in discharge of their duties, with a consequent effect of respondent No.2 herein alike when standing stripped of the benefit of the provisions of Section 197 Cr.P.C. warranting statutory sanction standing purveyed by the competent authority for prosecuting him for the penal misdemeanor committed during the course of his employment as an employee of a public undertaking perse rendered him to fall outside the ambit of the definition of “public servant” besides offence, if any, committed by the petitioner under Section 332 of the I.P.C being hence prima-facie not attractable qua him. Nonetheless the aforesaid paragraph of the judgment supra as stands extracted hereinafter is subject to a further rider engrafted in paragraph 26 of the judgment supra which stands extracted hereinafter in as much as when any employee in whatever capacity is performing duties in a government company or a public undertaking constituted by a legislative enactment, is mandated therein to also stand entitled to the protection contemplated in Section 197 of Cr.P.C., in sequel when within the ambit of the exception constituted in paragraph 26 of the judgment of the Hon’ble Apex Court in dilution of the clout besides sway of its succeeding paragraph 28, the complainant is an employee of a public undertaking which owes its existence to a legislative enactment nomenclatured as “the Road Transport Corporations Act, 1950” besides when thereupon he stands entitled to the benefit of Section 197 Cr.P.C with a consequent effect of his donning the mantle of a ‘public servant’ as defined in the apposite provisions of the Indian Penal Code as extracted hereinabove. “26. “26. It will be appropriate to notice that whenever there was felt need to include other functionaries within the definition of public servant, they have been declared to be ‘public servants’ under several special and local acts. If the legislature had intended to Include officers of instrumentality or agency for bringing such officers under the protective umbrella of section 197 Cr.P.C, it would have done so expressly. 28. Therefore, in our considered opinion, the protection by way of sanction under Section 197 of the Code of Criminal Procedure is not applicable to the officers of Government Companies or the public undertakings even when such public undertakings are ‘State ’within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the government. The appeals are disposed of accordingly…………” 5. Consequently, with the exception constituted in paragraph 26 of the judgment supra qua the mandate of paragraph 28 thereof hence standing attracted qua respondent No.2 herein, in sequel, when respondent No.2 is hence construable to be at the apposite stage performing public duties, the petitioner herein by purportedly committing the penal misdemeanor of preventing him or preempting him to perform them rendered him prima-facie amenable to face prosecution for committing offences constituted under Section 332 of the Indian Penal Code. In view of above, there is no merit in the petition and the same is accordingly dismissed. All pending applications stand disposed of accordingly. Any observations made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.