CASE NO.: Appeal (crl.) 311-12 of 1995 PETITIONER: UNION OF INDIA AND ANR. RESPONDENT: ASHOK KUMAR MITRA DATE OF JUDGMENT: 24/02/1995 BENCH: DR. A.S. ANAND & M.K. MUKHERJEE JUDGMENT:
JUDGMENT
1995 (2) SCR 369
The Judgment of the Court was delivered by
DR. A.S. ANAND, J. Leave granted.
The only question that we are called upon to consider in these appeals is
whether the employees of a nationalised Bank can be held to be ‘public
servants’ within the meaning of Section 21 of Indian Penal Code and triable
by Special Courts for the offences triable by these courts. The question
arises in the following circumstances.
The respondent was the Branch Manager of Bank of India at the relevant
time. A case was registered against him and another person for offences
under sections 120 B, 420, 409, 467, 468, and 477A IPC and Section 5(2}
read with Section 5(1) (c) (d) of the Prevention of Corruption Act, 1947.
After completion of investigation by the CBI, charge-sheet was filed in the
Court of the Special Judge at Alipur, Calcutta on 4.12.85. Cognizance was
taken but before charges were framed, the respondent moved a petition for
his discharge before the Special Judge stating that he is not a ‘public
servant’ and therefore cannot be tried by the Special Court. The learned
Special judge by his order dated 28.6.91 rejected the application. The
respondent thereupon filed a criminal revision in the Calcutta High Court
seeking quashing of the prosecution launched against him on the ground (a)
delay in the disposal of the case and (b) that not being a ‘public
servant’, he could not be tried by a Special Court.
The High Court rejected the first ground observing that the respondent
himself had ‘handsomely contributed’ to whatever delay had so far been
occasioned and, therefore, the proceedings could not be quashed on the
ground of delay, which was not attributable solely to the prosecution. So
far as the second ground is concerned, the High Court agreed with the
submission made on behalf of the respondent and held that the respondent
could not be deemed to be a ‘public servant’ within the meaning of Section
21 of IPC and as such could not be fried by the Special Court. The High
Court relied upon the judgment in Oriental Bank of Commerce and Ors. v.
Delhi Development Authority, reported in 1982 Crl. Law Journal 2230 in
support of its finding. The prosecution was accordingly quashed. The Union
of India is aggrieved and has come up in appeal by special leave.
It is submitted that since the judgment rendered by the Delhi High Court in
Oriental Bank of Commerce case (supra) has been over-ruled by this Court
therefore the judgment under appeal cannot be sustained. It is urged that a
nationalised bank is a ‘Corporation’ and not a ‘body corporate’ as held in
Oriental Bank’s case (supra) and therefore, the respondent would be
squarely covered by the definition of a ‘public servant’ as per section 21
Twelfth (b) of IPC.
In R.C. Cooper v. Union of India, [1970] 1 SCC 248 this Court with
reference to the nationalised bank constituted under the provisions of the
Banking Companies (Acquisition and Transfer of Undertakings) Ordinance,
1969, hold that the nationalised banks are ‘Corporations’.
The controversy, whether a nationalised bank is only a body corporate or is
a corporation is no longer res-integra. On account of the nationalisation,
the nationalised banks are not only established by a Central Act but are
also owned and controlled by the Central Government.
A Constitution Bench of this Court in Ashoka Marketing Ltd, and Anr. v.
Punjab National Bank and Ors. Etc., [1990] 4 SCC 406 specifically
considered the question whether a nationalised bank is a ‘corporation’ or
a’ body corporate’ and hold :
“Keeping in view the provisions of the Banks Nationalisation Act we are of
the opinion that the nationalised bank is a corporation established by a
Central Act and it is owned and controlled by the Central Government,”
(Emphasis ours)
The Constitution Bench expressly over-ruled the judgment of the Delhi High
Court in the Oriental Bank of Commerce case (supra) and held that the
distinction drawn in that judgment between a ‘body corporate’ and a
‘corporation’ in relation a nationalised bank is erroneous and that the
view that a nationalised bank is not a corporation could not be sustained.
Thus, it now rests settled that a nationalised bank is a corporation which
is established by a Central Act and is owned and controlled by the Central
Government. Are the employees of Corporations which are owned and
controlled by the Central Government and are established by a Central Act,
‘Public Servants’?
In State through CBI v. Of. Dogra & Ors., AIR (1986) SC 312 while setting
aside the judgment of the High Court of J & K, which had held that the
employees of an Insurance Company were not ‘public servants’ within the
meaning of Section 21 RPC (corresponding to Section 21 IPC), this Court
opined :
“So far as the Life Insurance Corporation is concerned, there can be no
second view that the employees of the corporation come within the
definition of the term ‘public servant’ as given under Section 21 of RPC.
So far as the other respondents are concerned, admittedly Jupiter Insurance
Co, has been merged with the Oriental Fire and General Insurance Co. after
nationalisation and the latter is now a part of the corporation, namely,
General Insurance Corporation of India, By such process, the respondents
Dogra and his associates are in the same position as Anand. Mr. Kapil
Sibal, learned council appearing for Dogra and his associates has stated
before us that the finding of the High Court on this score is not tenable
and the respondents must be held to be public servants.”
Section 21 IPC provides :
“21. ‘Public Servant”- The words “public servant” denote a person falling
under any of the descriptions hereinafter following, namely:
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
defined in Section 617 of the Companies Act, 1956.”
On a plain reading of the above provision, it follows that the view of the
Calcutta High Court in the impugned judgment holding that the Branch
Manager of Bank of India is not a ‘public servant’ under Section 21 of IPC
is erroneous and cannot be sustained.
Dr. Ghosh appearing for the respondents, however, stated that right to
speady trial having been held by this Court to be a fundamental right, the
prosecution in this case in which charge-sheet was filed almost ten years
ago in 1985, should be quashed OB account of the inordinate delay in
completing the same. In the fact situation of this case, the argument does
not appeal to us. The High Court itself, after considering the facts of the
case, came to the conclusion that the delay was not attributable only to
the prosecution and that the respondent had himself ‘handsomely
contributed’ to the delay. We agree with the above finding of the High
Court which is based on facts and hold that on the ground of delay, not
attributable only to the prosecution, the respondent cannot challenge his
prosecution for various offences for which he was standing trial before the
Special Court. The respondent, having himself contributed to the delay in
the disposal of the trial, in no small measure, cannot be permitted to take
advantage of his own wrong and take shelter under ‘speady trial’ to escape
from prosecution.
As a result of the above discussion these appeals succeed and are allowed.
The impugned judgment of the High Court is set aside. The trial court shall
proceed with the case and conclude it expeditiously.
