N.K. SHARMA versus ABHIMANYU

Citation: [2005] SUPP. 4 S.C.R. 207 · Decided: 07-10-2005 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

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Judgment (excerpt)

N.K. SHARMA 
A 
v. 
ABHIMANYU 
OCTOBER 7, 2005 
[S.B. SINHA AND R.V. RAVEENDRAN, JJ.] 
B 
State Government officer-Deputed as Managing Director of a Co-
operative Society-Criminal complaint-Summoning-Held: He was not 
entitled to protection of sanction from prosecution under Section 197 Cr.P.C.- C 
He was not a public servant either under Section 2 I of the JPC as he was not 
in service of State and his salary was not paid by Government, or under 
Section 123 of Haryana Co-operative Societies Act, 1984, as he was not 
engaged in recovery of loans/appointed as liquidator/arbitrator-Also, he was 
not covered under definition of 'Government employee' in Rule 2(D) of Haryana 
Civil Services (Punishment or Appeal) Rules, 1987. 
D 
Criminal Procedure Code, ·/973-Sections 197, 203-Summoning of 
accused-Application against it seeking dismissal of complaint on the ground 
·that sanction for prosecution was not obtained-Held: It is not maintainable 
before subordinate criminal court. 
Interpretation of statutes-Legal fiction-It is created for a specific 
purpose and its applicability cannot be extended for other purposes. 
Appellant is class I officer of a State Government. He was deputed 
E 
as Managing Director of a Co-operative Society. A criminal complaint was 
filed against him for commission of an offence and summons were issued F 
to him by trial cour~. He filed application against it contending that he 
was a public servant and as sanction for his prosecution in terms of Section 
197 of the Code of Criminal Procedure was not obtained, entire 
proceedings against him were vitiated. Trial Court and High Court 
rejected the application. Hence the present appeal. 
G 
Appellant contended that he was a public servant within meaning 
of Rule 20 o_fHaryana Civil Services (Punishment or Appeal) Rules, 1987, 
and Sections 118 and 123 of Haryana Co-operative Societies Act, 1984, 
and hence entitled to protection of sanction against prosecution in terms 
. 
207 
H 
208 
SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R. 
A of Section 197 of the Code of Criminal Procedure. 
Dismissing the appeal, the Court 
HELD: 1.1. The salary of the appellant is not paid by the 
Government. He at the relevant time was not in the service of the State. 
B Prosecution against an officer of the Government Company or a public 
undertaking would not require any sanction under Section 197 Cr.P.C. 
He does not answer the description of a public servant within the meaning 
of the provision of Section 21 of IPC. [212-F, G] 
1.2. The underlying object in enacting Section 197 of the CrPC is to 
C protect a public servant from a frivolous prosecution. The said provision, 
however, cannot be interpreted liberally so as to bring within its purview 
other officers who are not so protected. Section 197 of the Code of 
Criminal Procedure, inter alia, protects the public servants. [212-8, CJ 
Shreekantiah Ramayya Munipalli v. State of Bombay, [1955] 1 SCR 
D 1177, relied on. 
2. Rule 2(D) of Haryana Civil Services (Punishment or Appeal) 
Rules, 1987 had been made in terms of proviso appended to Article 309 
of the Constitution of India. An employee of the State, whose service have 
E been placed at the disposal of a company, corporation or organization or 
a local authority or university would be deemed to be a Government 
employee despite the fact that his salary has been drawn from sources 
other than the consolidated fund of the State, for the purpose of the said 
rules. The definition of the 'Government employee' cannot be extended 
for purposes other than sought to be achieved thereby. Provisions of the 
F said rule, therefore, cannot be. invoked for affording protection under 
Section 197 of the Code of Criminal Procedure. [212-G, H; 213-A, B, C] 
3.1. Section 117 of the Haryana Co-operative Societies Act, 1984 
enumerates offences. Section 118 thereof limits taking of cognizance of 
offences which come within the purview of the said Act, as would be 
G evident from clause (i) thereof, and not under the provisions of the Indian 
Penal Code or any other statute. The said provision, therefore, has no 
application. In terms of its Section 123, only an employee who is engaged 
in the recovery ofloans or a person who has been appointed as a liquidator 
or an arbitrator only shall be treated as a public servant. [213-H; 214-A] 
H 
I 
I 
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N.K. SHARMA v. ABHIMANYU 
209 
3.2. By reason of the said provision, a legal fiction has been created. A 
A legal fiction, as is we

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