Full Judgment Text
REPORTABLE
2025 INSC 539
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1527 OF 2025
CENTRAL BUREAU OF INVESTIGATION … APPELLANT
VS.
RAMESH CHANDER DIWAN … RESPONDENT
WITH
CRIMINAL APPEAL NO. 1528 OF 2025
ASHOK KUMAR MANUJA … APPELLANT
VS.
CENTRAL BUREAU OF
INVESTIGATION AND ANOTHER … RESPONDENTS
J U D G M E N T
DIPANKAR DATTA, J.
1. These two appeals, by special leave, are directed against a common
th 1
judgment and order dated 29 January, 2024 passed by the High
Court of Punjab and Haryana at Chandigarh. The impugned order of
2
the High Court partly allowed a revision petition of the respondent,
Signature Not Verified
Digitally signed by
JATINDER KAUR
Date: 2025.04.22
17:37:00 IST
Reason:
1
impugned order
2
Crl. Revision Petition No.1388 of 2021
1
th
wherein an order of the Special Court (CBI) dated 29 October, 2021
dismissing the respondent’s application for discharge was under
challenge. While the High Court discharged the respondent in respect
3
of offences punishable under the Indian Penal Code, 1860 on the
ground that no sanction had been obtained as per the statutory
4
mandate contained in Section 197, Code of Criminal Procedure, 1973 ,
the prayer of the respondent for discharge qua offences alleged against
5
him under the Prevention of Corruption Act, 1988 was spurned. The
High Court held that even though the respondent had retired from
service, the amended provisions of Section 19 of the PC Act would
have no retrospective application and, therefore, he was not entitled
to derive any benefit of such amendment.
2. Central Bureau of Investigation (CBI) is the appellant in the lead
appeal whereas the appellant in the connected appeal is the first
informant/complainant.
th
3. An FIR was registered on 9 December, 2014 at Police Station ACB,
CBI Chandigarh, under Sections 120B and 420 of the IPC and under
Section 13(2) read with Section 13(1)(d) of the PC Act against the
respondent. It was alleged in the FIR that while the respondent was
functioning as the Executive Engineer, Public Health, Municipal
Corporation, Chandigarh, in connivance and collusion with the co-
accused, M/s Selvel Media Services Pvt. Ltd., he caused wrongful loss
3
IPC
4
Cr. PC
5
PC Act
2
in excess of Rs.13.66 crore to the Government exchequer by changing
the terms and conditions of the Detailed Notice Inviting Tender. A
detailed investigation followed and on completion thereof, a charge-
th
sheet dated 10 October, 2016 under Section 173(2), Cr. PC was filed
6
in the Court of the Special Judge, CBI, Chandigarh . Bare reading of
the charge-sheet reveals that the respondent, along with the co-
accused, had committed offences of the nature alleged in the FIR. The
rd
Special Judge vide order dated 23 November, 2021 was pleased to
frame charges against the accused persons.
4. The respondent had retired from service, having attained the age of
th
superannuation on 30 September, 2016. Sanction under Section 197
of the Cr. PC was not obtained by CBI. The respondent applied for
discharge on the ground of absence of sanction at any stage. He also
sought protection under the amended provisions of Section 19(1) of
th
the PC Act too, effective from 26 July, 2018, which mandated sanction
to be obtained even in respect of retired public servants. As noted
above, the Special Court dismissed the application for discharge
whereafter the High Court, on the respondent’s application under
Section 401 read with Section 482 of the Cr. PC, passed the impugned
order.
5. Appearing in support of the appeal, Mr. Suryaprakash V. Raju, learned
Additional Solicitor General contended that the respondent though was
a public servant removable from office by the Governor of Punjab but
6
Special Court
3
upon being sent to join his new assignment in the Municipal
Corporation, Chandigarh, on usual terms and conditions, he ceased to
be a public servant and the provisions of Section 197, Cr. PC had no
application to him. According to Mr. Raju, the High Court fell in error
in holding that without sanction under Section 197, Cr. PC, cognizance
of the offence could not have been taken. Reliance was placed by Mr.
Raju on several decisions of this Court in support of his prayer for
interference with the impugned order. The same are:
(i) S.S. Dhanoa v. Municipal Corporation Delhi and
7
Others ,
8
(ii) Mohd. Hadi Raja v. State of Bihar and Another ,
9
(iii) N.K. Sharma v. Abhimanyu ,
(iv) Punjab State Warehousing Corporation v.
10
Bhushan Chander and Another ,
(v) Bharat Sanchar Nigam Limited and Others v.
11
Pramod V. Sawant and Another ,
12
(vi) State of Kerala v. V. Padmanabhan Nair ; and
(vii) Inspector of Police v. Battenapatla Venkata
13
Ratnam .
7
(1981) 3 SCC 431
8
(1998) 5 SCC 91
9
(2005) 13 SCC 213
10
(2016) 13 SCC 44
11
(2019) 16 SCC 63
12
(1999) 5 SCC 690
13
(2015) 13 SCC 87
4
6. We have heard Mr. Raju, at length. Except for seeking certain
clarifications, we have not felt it necessary to call upon learned counsel
for the respondent to argue.
7. The only question that has engaged our consideration is whether the
High Court was right in holding that sanction under Section 197, Cr.
PC not having been obtained, the respondent should be discharged for
the offences registered under Sections 120B and 420 of the IPC against
him.
8. Since a decision on these two appeals would depend entirely on how
we read and interpret Section 197, Cr. PC in the light of the deputation
assignment of the respondent, we prefer to commence our analysis by
noting the relevant positions held by the officers/employees who were
parties to the proceedings before this Court in the decisions cited by
Mr. Raju, what precisely were the questions which arose for
determination in such cases and how the same were answered.
9. In S.S. Dhanoa (supra), the appellant was a member of the Indian
Administrative Service. While the appellant was holding the office of
Joint Commissioner (State Liaison) in the Ministry of Agriculture,
(Department of Agriculture), his services were placed at the disposal
of the Department of Co-operation, for his appointment as the General
Manager, Super Bazar, Connaught Place, New Delhi. The short question
that fell for determination in the appeal was whether a member of the
Indian Administrative Service, whose services are placed at the
disposal of an organisation which is neither a local authority, nor a
5
corporation established by or under a Central, Provincial or State Act,
nor a Government Company, by the Central Government or the
Government of a State, can be treated to be a ‘public servant’ within
the meaning of clause Twelfth of Section 21 of the IPC for the purpose
of Section 197, Cr. PC. The question was answered in the negative.
10. Mohd. Hadi Raja (supra), however, did not involve a deputationist.
The common question of law arising for decision in that case was
whether the provisions of sanction under sub-section (1) of Section
197, Cr. PC are applicable for prosecuting officers of public sector
undertakings or government companies. Since such officers are
removable from service by authorities other than the Government, it
was held that they were not entitled to invoke Section 197 of the Cr.
PC.
11. Whether a Class 1 officer of the Government of Haryana deputed to
work as Managing Director of a cooperative society is entitled to
protection under sub-section (1) of Section 197, Cr. PC was the
question arising for decision in N.K. Sharma (supra). It was held that
no sanction was required in the case therein as the appellant’s salary
was not paid by the Government nor was he at the relevant time in
service of the State, thereby, not satisfying the requirements of being
a “public servant” within the meaning of Section 197, Cr. PC.
12. Punjab State Warehousing Corporation (supra) involved the
question as to whether the first respondent, an employee of the
appellant corporation, was a public servant and the trial in its entirety
6
stood invalid because sanction to prosecute under Section 197, Cr. PC
had not been obtained. It was held by this Court following the decision
in Mohd. Hadi Raja (supra) that the appellant being an employee of
the appellant corporation was not entitled to the benefit of Section
197, Cr. PC and he cannot put forth the claim that breach of trust is
connected with his official duty, thereby not necessitating sanction
under Section 197, Cr. PC.
13. In Bharat Sanchar Nigam Limited (supra), Bharat Sanchar Nigam
Limited was the first appellant whereas the other appellants were its
employees. The complainant was the respondent. The appeal before
this Court raised a short and pure question of law with regard to
protection under Section 197, Cr. PC being available to the employees
of a public sector corporation claiming the status of a ‘public servant’.
This happened to be a case where, except one of the appellants who
retired while on deputation, deputation of the other employees was
followed by absorption in the undertaking. Following Mohd. Hadi Raja
(supra), it was held that the employees of the first appellant were not
entitled to invoke Section 197, Cr. PC.
14. This Court in V. Padmanabhan Nair (supra) held that an accused
facing prosecution for offences under the PC Act cannot claim any
immunity on the ground of want of sanction, if he ceased to be a public
servant on the date when the court took cognizance of the offence.
15. Battenapatla Venkata Ratnam (supra) was cited for emphasizing
that protection under Section 197, Cr. PC from harassment is given in
7
public interest and the same cannot be treated as a shield to protect
corrupt officials.
16. Having considered the precedents cited by Mr. Raju, with which we
have no quarrel, and on consideration of the applicable statutory
provisions, we now proceed to assign reasons for our ultimate
conclusion.
17. The question arising for decision cannot but be decided without
keeping the concept of deputation in the field of public service law in
perspective. We, therefore, see the need to briefly touch upon such
concept.
18. The concept of deputation was explained by this Court in State of
14
Punjab v. Inder Singh as follows:
18. The concept of “deputation” is well understood in service law and
has a recognised meaning. “Deputation” has a different connotation
in service law and the dictionary meaning of the word “deputation”
is of no help. In simple words “deputation” means service outside the
cadre or outside the parent department. Deputation is deputing or
transferring an employee to a post outside his cadre, that is to say,
to another department on a temporary basis. After the expiry period
of deputation the employee has to come back to his parent
department to occupy the same position unless in the meanwhile he
has earned promotion in his parent department as per the
Recruitment Rules. Whether the transfer is outside the normal field
of deployment or not is decided by the authority who controls the
service or post from which the employee is transferred. There can be
no deputation without the consent of the person so deputed and he
would, therefore, know his rights and privileges in the deputation
post. ...
(emphasis ours)
15
19. In Umapati Choudhary v. State of Bihar , this Court had the
occasion to observe:
14
(1997) 8 SCC 372
15
(1999) 4 SCC 659
8
8. Deputation can be aptly described as an assignment of an
employee (commonly referred to as the deputationist) of one
department or cadre or even an organisation (commonly referred to
as the parent department or lending authority) to another
department or cadre or organisation (commonly referred to as the
borrowing authority). The necessity for sending on deputation arises
in public interest to meet the exigencies of public service. The
concept of deputation is consensual and involves a voluntary decision
of the employer to lend the services of his employee and a
corresponding acceptance of such services by the borrowing
employer. It also involves the consent of the employee to go on
deputation or not. ...
(emphasis ours)
20. Where exigency of public service requires the parent department
(lending authority) to send its employee on deputation to the receiving
department (borrowing authority) and such an arrangement is
preceded by a consensus among the three, i.e., the lending authority,
the borrowing authority and the officer/employee, the statutory rules
do normally provide for his repatriation. In such a case, there can be
no severance of relationship with the parent department. However,
during the period the officer/employee is sent on deputation to the
receiving department, the parent department may fill up the post
vacated by the deputationist in accordance with law under the category
of ‘deputation vacancy’, which also is not unknown in public service
law, but it is only for a limited period till the officer/employee is
repatriated.
21. Insofar as disciplinary control over a deputationist is concerned, such
control generally vests with the appropriate authority in the parent
department in which the substantive appointment is held. However, it
cannot be gainsaid that by statutory rules or by conditions contained
9
in the order of deputation, it can be provided that the deputationist,
for the period he is serving on deputation, will be subject to the
disciplinary control of the department to which he is deputed. Should
there be a provision in this behalf, the deputationist may be proceeded
against, if the occasion therefore arises, by the appropriate authority
in the receiving department. Although generally an employee is
supposed to have one master, in the context of deputation there could
be a plurality of masters. Nonetheless, it is the statutory rules which
would be the deciding factor. If the rules indicate that disciplinary
control is retained by the parent department, the receiving department
would have no jurisdiction to exercise such control.
22. Having noted the concept of assignment on deputation, a quick look
at the object that Section 197, Cr. PC seeks to achieve would suffice
for completeness of understanding. We may profitably refer to a
Constitution Bench decision of this Court in Matajog Dobey v. H.C.
16
Bhari . While repelling a challenge that Section 197 of the Code of
Criminal Procedure, 1898 ( pari materia with Section 197, Cr. PC)
offended Article 14 of the Constitution, this Court held:
15. ... Article 14 does not render Section 197 of the Criminal
Procedure Code ultra vires as the discrimination is based upon a
rational classification. Public servants have to be protected from
harassment in the discharge of official duties while ordinary citizens
not so engaged do not require this safeguard. It was argued that
Section 197 of the Criminal Procedure Code vested an absolutely
arbitrary power in the Government to grant or withhold sanction at
their sweet-will and pleasure, and the legislature did not lay down or
even indicate any guiding principles to control the exercise of the
discretion. There is no question of any discrimination between one
16
(1955) 2 SCR 925
10
person and another in the matter of taking proceedings against a
public servant for an act done or purporting to be done by the public
servant in the discharge of his official duties. No one can take such
proceedings without such sanction. If the Government gives sanction
against one public servant but declines to do so against another, then
the government servant against whom sanction is given may possibly
complain of discrimination. But the petitioners who are complainants
cannot be heard to say so, for there is no discrimination as against
any complainant. It has to be borne in mind that a discretionary
power is not necessarily a discriminatory power and that abuse of
power is not to be easily assumed where the discretion is vested in
the government and not in a minor official. Further, we are not now
concerned with any such question. We have merely to see whether
the court could take cognisance of the case without previous sanction
and for this purpose the court has to find out if the act complained
against was committed by the accused while acting or purporting to
act in the discharge of official duty. Once this is settled, the case
proceeds or is thrown out. Whether sanction is to be accorded or not
is a matter for the government to consider. The absolute power to
accord or withhold sanction conferred on the government is irrelevant
and foreign to the duty cast on the court, which is the ascertainment
of the true nature of the act.
(emphasis ours)
23. Turning to the words ‘public servant’ appearing in sub-section (1) of
Section 197, Cr. PC, it has not been defined in the Cr. PC; however,
what the words ‘public servant’ denote is found in Section 21, IPC and
by reason of Section 2(y) of the Cr. PC, the meaning of ‘public servant’
as appearing in Section 197 thereof has to be understood in the light
of its definition in Section 21, IPC. Section 21 of the IPC, to the extent
relevant, reads thus:
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 (1 of
1956).
11
24. Although the respondent’s initial appointment letter is not on record,
it has not been disputed before us (in view of the additional documents
th
placed on record by the respondent in terms of an order dated 18
March, 2025) that the respondent was initially appointed by the
Government of Punjab. If not a member of the State’s civil service, the
respondent was most certainly the holder of a civil post. It is further
undisputed that the respondent was sent on deputation to the Union
Territory, Chandigarh from the State of Punjab (P.W.D P.H Branch).
Also, it is not in dispute that vide an order of the Administrator, Union
17 th
Territory, Chandigarh dated 25 February, 2005, the respondent was
relieved to join a new assignment in the Municipal Corporation,
Chandigarh. From time to time, the Governor of Punjab extended the
deputation period of the respondent with the Municipal Corporation,
th th
Chandigarh. Orders dated 13 October, 2006 and 12 July, 2007
placed on record by the respondent evince extension of the deputation
period of the respondent with the Municipal Corporation, Chandigarh
by none other than the Governor of Punjab for specified periods.
Effectively, what these orders did was to temporarily place the
respondent’s service at the disposal of the Municipal Corporation,
Chandigarh. It has not been demonstrated before us by CBI that upon
assignment of the respondent on deputation with the Municipal
Corporation, Chandigarh, he was either absorbed in its services
17
Administrator
12
resulting in severance of relationship with the Government of Punjab
or that, by any order validly made, the respondent ceased to remain a
Government servant once he left the post under the Government he
was serving prior to his deputation.
25. Moreover, clause (1) of Article 311 of the Constitution ordains that no
authority subordinate to the appointing authority can dismiss or
remove a member of the civil service of the State or a civil post holder.
In case the respondent, while on deputation, were to commit a
misconduct warranting either dismissal or removal, it has not been
shown by referring to statutory rules that upon the respondent’s
assignment on deputation, disciplinary control over him stood
transferred from any authority of the Government of Punjab to an
authority of equal rank in the Municipal Corporation, Chandigarh and
such authority had been empowered to take disciplinary action against
the respondent. In the absence thereof, neither the Board of the
Municipal Corporation, Chandigarh nor its Municipal Commissioner
would have the authority or jurisdiction to take disciplinary action
against the respondent had he misconducted himself while discharging
his duty under such corporation.
26. This legal position is fortified by a recent decision of this Court in A.
18
Sreenivasa Reddy v. Rakesh Sharma where a coordinate Bench
has held that protection of sub-section (1) of Section 197, Cr. PC is
available only to such public servants whose appointing authority is
18
(2023) 8 SCC 711
13
the Central Government or the State Government and not to every
public servant.
27. We are of the considered opinion, having regard to the materials on
record, that the respondent while rendering service for the State of
Punjab as well as the administration of the Union Territory was a public
th
servant covered by clause (a) of the 12 description in Section 21, IPC
and despite his assignment on deputation to the Municipal Corporation,
Chandigarh, he continued to remain a public servant for the purposes
of sub-section (1) of Section 197, Cr. PC, being removable from office
by an appropriate authority in the Government of Punjab and none
else. We are afraid, no material which could persuade us to take a
contrary view has been shown.
28. For the foregoing reasons, we find no reason to accept Mr. Raju’s
contention that the respondent ceased to be a public servant upon
being sent on deputation first to the Union Territory, Chandigarh or
when he was relieved by the Administrator for joining a new
assignment in the Municipal Corporation, Chandigarh. The inevitable
result is that the lead appeal and the connected appeal ought to fail.
29. Mr. Raju, sensing the Court’s mind, requested for liberty being granted
to seek sanction under Section 218 of the Bharatiya Nagarik Suraksha
Sanhita, 2023, which has introduced the concept of deemed sanction.
30. In view of the provisions of Section 531 of the BNSS, the Cr. PC stands
repealed; yet, pending proceedings are to be continued under the
14
repealed law. We, therefore, decline Mr. Raju’s prayer. However, liberty
to seek sanction under the Cr. PC, if so advised, is reserved.
31. While holding the impugned order to be correct, these appeals stand
dismissed on the above terms.
………....................J.
(DIPANKAR DATTA)
………....................J.
(MANMOHAN)
NEW DELHI;
APRIL 22, 2025.
15
2025 INSC 539
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1527 OF 2025
CENTRAL BUREAU OF INVESTIGATION … APPELLANT
VS.
RAMESH CHANDER DIWAN … RESPONDENT
WITH
CRIMINAL APPEAL NO. 1528 OF 2025
ASHOK KUMAR MANUJA … APPELLANT
VS.
CENTRAL BUREAU OF
INVESTIGATION AND ANOTHER … RESPONDENTS
J U D G M E N T
DIPANKAR DATTA, J.
1. These two appeals, by special leave, are directed against a common
th 1
judgment and order dated 29 January, 2024 passed by the High
Court of Punjab and Haryana at Chandigarh. The impugned order of
2
the High Court partly allowed a revision petition of the respondent,
Signature Not Verified
Digitally signed by
JATINDER KAUR
Date: 2025.04.22
17:37:00 IST
Reason:
1
impugned order
2
Crl. Revision Petition No.1388 of 2021
1
th
wherein an order of the Special Court (CBI) dated 29 October, 2021
dismissing the respondent’s application for discharge was under
challenge. While the High Court discharged the respondent in respect
3
of offences punishable under the Indian Penal Code, 1860 on the
ground that no sanction had been obtained as per the statutory
4
mandate contained in Section 197, Code of Criminal Procedure, 1973 ,
the prayer of the respondent for discharge qua offences alleged against
5
him under the Prevention of Corruption Act, 1988 was spurned. The
High Court held that even though the respondent had retired from
service, the amended provisions of Section 19 of the PC Act would
have no retrospective application and, therefore, he was not entitled
to derive any benefit of such amendment.
2. Central Bureau of Investigation (CBI) is the appellant in the lead
appeal whereas the appellant in the connected appeal is the first
informant/complainant.
th
3. An FIR was registered on 9 December, 2014 at Police Station ACB,
CBI Chandigarh, under Sections 120B and 420 of the IPC and under
Section 13(2) read with Section 13(1)(d) of the PC Act against the
respondent. It was alleged in the FIR that while the respondent was
functioning as the Executive Engineer, Public Health, Municipal
Corporation, Chandigarh, in connivance and collusion with the co-
accused, M/s Selvel Media Services Pvt. Ltd., he caused wrongful loss
3
IPC
4
Cr. PC
5
PC Act
2
in excess of Rs.13.66 crore to the Government exchequer by changing
the terms and conditions of the Detailed Notice Inviting Tender. A
detailed investigation followed and on completion thereof, a charge-
th
sheet dated 10 October, 2016 under Section 173(2), Cr. PC was filed
6
in the Court of the Special Judge, CBI, Chandigarh . Bare reading of
the charge-sheet reveals that the respondent, along with the co-
accused, had committed offences of the nature alleged in the FIR. The
rd
Special Judge vide order dated 23 November, 2021 was pleased to
frame charges against the accused persons.
4. The respondent had retired from service, having attained the age of
th
superannuation on 30 September, 2016. Sanction under Section 197
of the Cr. PC was not obtained by CBI. The respondent applied for
discharge on the ground of absence of sanction at any stage. He also
sought protection under the amended provisions of Section 19(1) of
th
the PC Act too, effective from 26 July, 2018, which mandated sanction
to be obtained even in respect of retired public servants. As noted
above, the Special Court dismissed the application for discharge
whereafter the High Court, on the respondent’s application under
Section 401 read with Section 482 of the Cr. PC, passed the impugned
order.
5. Appearing in support of the appeal, Mr. Suryaprakash V. Raju, learned
Additional Solicitor General contended that the respondent though was
a public servant removable from office by the Governor of Punjab but
6
Special Court
3
upon being sent to join his new assignment in the Municipal
Corporation, Chandigarh, on usual terms and conditions, he ceased to
be a public servant and the provisions of Section 197, Cr. PC had no
application to him. According to Mr. Raju, the High Court fell in error
in holding that without sanction under Section 197, Cr. PC, cognizance
of the offence could not have been taken. Reliance was placed by Mr.
Raju on several decisions of this Court in support of his prayer for
interference with the impugned order. The same are:
(i) S.S. Dhanoa v. Municipal Corporation Delhi and
7
Others ,
8
(ii) Mohd. Hadi Raja v. State of Bihar and Another ,
9
(iii) N.K. Sharma v. Abhimanyu ,
(iv) Punjab State Warehousing Corporation v.
10
Bhushan Chander and Another ,
(v) Bharat Sanchar Nigam Limited and Others v.
11
Pramod V. Sawant and Another ,
12
(vi) State of Kerala v. V. Padmanabhan Nair ; and
(vii) Inspector of Police v. Battenapatla Venkata
13
Ratnam .
7
(1981) 3 SCC 431
8
(1998) 5 SCC 91
9
(2005) 13 SCC 213
10
(2016) 13 SCC 44
11
(2019) 16 SCC 63
12
(1999) 5 SCC 690
13
(2015) 13 SCC 87
4
6. We have heard Mr. Raju, at length. Except for seeking certain
clarifications, we have not felt it necessary to call upon learned counsel
for the respondent to argue.
7. The only question that has engaged our consideration is whether the
High Court was right in holding that sanction under Section 197, Cr.
PC not having been obtained, the respondent should be discharged for
the offences registered under Sections 120B and 420 of the IPC against
him.
8. Since a decision on these two appeals would depend entirely on how
we read and interpret Section 197, Cr. PC in the light of the deputation
assignment of the respondent, we prefer to commence our analysis by
noting the relevant positions held by the officers/employees who were
parties to the proceedings before this Court in the decisions cited by
Mr. Raju, what precisely were the questions which arose for
determination in such cases and how the same were answered.
9. In S.S. Dhanoa (supra), the appellant was a member of the Indian
Administrative Service. While the appellant was holding the office of
Joint Commissioner (State Liaison) in the Ministry of Agriculture,
(Department of Agriculture), his services were placed at the disposal
of the Department of Co-operation, for his appointment as the General
Manager, Super Bazar, Connaught Place, New Delhi. The short question
that fell for determination in the appeal was whether a member of the
Indian Administrative Service, whose services are placed at the
disposal of an organisation which is neither a local authority, nor a
5
corporation established by or under a Central, Provincial or State Act,
nor a Government Company, by the Central Government or the
Government of a State, can be treated to be a ‘public servant’ within
the meaning of clause Twelfth of Section 21 of the IPC for the purpose
of Section 197, Cr. PC. The question was answered in the negative.
10. Mohd. Hadi Raja (supra), however, did not involve a deputationist.
The common question of law arising for decision in that case was
whether the provisions of sanction under sub-section (1) of Section
197, Cr. PC are applicable for prosecuting officers of public sector
undertakings or government companies. Since such officers are
removable from service by authorities other than the Government, it
was held that they were not entitled to invoke Section 197 of the Cr.
PC.
11. Whether a Class 1 officer of the Government of Haryana deputed to
work as Managing Director of a cooperative society is entitled to
protection under sub-section (1) of Section 197, Cr. PC was the
question arising for decision in N.K. Sharma (supra). It was held that
no sanction was required in the case therein as the appellant’s salary
was not paid by the Government nor was he at the relevant time in
service of the State, thereby, not satisfying the requirements of being
a “public servant” within the meaning of Section 197, Cr. PC.
12. Punjab State Warehousing Corporation (supra) involved the
question as to whether the first respondent, an employee of the
appellant corporation, was a public servant and the trial in its entirety
6
stood invalid because sanction to prosecute under Section 197, Cr. PC
had not been obtained. It was held by this Court following the decision
in Mohd. Hadi Raja (supra) that the appellant being an employee of
the appellant corporation was not entitled to the benefit of Section
197, Cr. PC and he cannot put forth the claim that breach of trust is
connected with his official duty, thereby not necessitating sanction
under Section 197, Cr. PC.
13. In Bharat Sanchar Nigam Limited (supra), Bharat Sanchar Nigam
Limited was the first appellant whereas the other appellants were its
employees. The complainant was the respondent. The appeal before
this Court raised a short and pure question of law with regard to
protection under Section 197, Cr. PC being available to the employees
of a public sector corporation claiming the status of a ‘public servant’.
This happened to be a case where, except one of the appellants who
retired while on deputation, deputation of the other employees was
followed by absorption in the undertaking. Following Mohd. Hadi Raja
(supra), it was held that the employees of the first appellant were not
entitled to invoke Section 197, Cr. PC.
14. This Court in V. Padmanabhan Nair (supra) held that an accused
facing prosecution for offences under the PC Act cannot claim any
immunity on the ground of want of sanction, if he ceased to be a public
servant on the date when the court took cognizance of the offence.
15. Battenapatla Venkata Ratnam (supra) was cited for emphasizing
that protection under Section 197, Cr. PC from harassment is given in
7
public interest and the same cannot be treated as a shield to protect
corrupt officials.
16. Having considered the precedents cited by Mr. Raju, with which we
have no quarrel, and on consideration of the applicable statutory
provisions, we now proceed to assign reasons for our ultimate
conclusion.
17. The question arising for decision cannot but be decided without
keeping the concept of deputation in the field of public service law in
perspective. We, therefore, see the need to briefly touch upon such
concept.
18. The concept of deputation was explained by this Court in State of
14
Punjab v. Inder Singh as follows:
18. The concept of “deputation” is well understood in service law and
has a recognised meaning. “Deputation” has a different connotation
in service law and the dictionary meaning of the word “deputation”
is of no help. In simple words “deputation” means service outside the
cadre or outside the parent department. Deputation is deputing or
transferring an employee to a post outside his cadre, that is to say,
to another department on a temporary basis. After the expiry period
of deputation the employee has to come back to his parent
department to occupy the same position unless in the meanwhile he
has earned promotion in his parent department as per the
Recruitment Rules. Whether the transfer is outside the normal field
of deployment or not is decided by the authority who controls the
service or post from which the employee is transferred. There can be
no deputation without the consent of the person so deputed and he
would, therefore, know his rights and privileges in the deputation
post. ...
(emphasis ours)
15
19. In Umapati Choudhary v. State of Bihar , this Court had the
occasion to observe:
14
(1997) 8 SCC 372
15
(1999) 4 SCC 659
8
8. Deputation can be aptly described as an assignment of an
employee (commonly referred to as the deputationist) of one
department or cadre or even an organisation (commonly referred to
as the parent department or lending authority) to another
department or cadre or organisation (commonly referred to as the
borrowing authority). The necessity for sending on deputation arises
in public interest to meet the exigencies of public service. The
concept of deputation is consensual and involves a voluntary decision
of the employer to lend the services of his employee and a
corresponding acceptance of such services by the borrowing
employer. It also involves the consent of the employee to go on
deputation or not. ...
(emphasis ours)
20. Where exigency of public service requires the parent department
(lending authority) to send its employee on deputation to the receiving
department (borrowing authority) and such an arrangement is
preceded by a consensus among the three, i.e., the lending authority,
the borrowing authority and the officer/employee, the statutory rules
do normally provide for his repatriation. In such a case, there can be
no severance of relationship with the parent department. However,
during the period the officer/employee is sent on deputation to the
receiving department, the parent department may fill up the post
vacated by the deputationist in accordance with law under the category
of ‘deputation vacancy’, which also is not unknown in public service
law, but it is only for a limited period till the officer/employee is
repatriated.
21. Insofar as disciplinary control over a deputationist is concerned, such
control generally vests with the appropriate authority in the parent
department in which the substantive appointment is held. However, it
cannot be gainsaid that by statutory rules or by conditions contained
9
in the order of deputation, it can be provided that the deputationist,
for the period he is serving on deputation, will be subject to the
disciplinary control of the department to which he is deputed. Should
there be a provision in this behalf, the deputationist may be proceeded
against, if the occasion therefore arises, by the appropriate authority
in the receiving department. Although generally an employee is
supposed to have one master, in the context of deputation there could
be a plurality of masters. Nonetheless, it is the statutory rules which
would be the deciding factor. If the rules indicate that disciplinary
control is retained by the parent department, the receiving department
would have no jurisdiction to exercise such control.
22. Having noted the concept of assignment on deputation, a quick look
at the object that Section 197, Cr. PC seeks to achieve would suffice
for completeness of understanding. We may profitably refer to a
Constitution Bench decision of this Court in Matajog Dobey v. H.C.
16
Bhari . While repelling a challenge that Section 197 of the Code of
Criminal Procedure, 1898 ( pari materia with Section 197, Cr. PC)
offended Article 14 of the Constitution, this Court held:
15. ... Article 14 does not render Section 197 of the Criminal
Procedure Code ultra vires as the discrimination is based upon a
rational classification. Public servants have to be protected from
harassment in the discharge of official duties while ordinary citizens
not so engaged do not require this safeguard. It was argued that
Section 197 of the Criminal Procedure Code vested an absolutely
arbitrary power in the Government to grant or withhold sanction at
their sweet-will and pleasure, and the legislature did not lay down or
even indicate any guiding principles to control the exercise of the
discretion. There is no question of any discrimination between one
16
(1955) 2 SCR 925
10
person and another in the matter of taking proceedings against a
public servant for an act done or purporting to be done by the public
servant in the discharge of his official duties. No one can take such
proceedings without such sanction. If the Government gives sanction
against one public servant but declines to do so against another, then
the government servant against whom sanction is given may possibly
complain of discrimination. But the petitioners who are complainants
cannot be heard to say so, for there is no discrimination as against
any complainant. It has to be borne in mind that a discretionary
power is not necessarily a discriminatory power and that abuse of
power is not to be easily assumed where the discretion is vested in
the government and not in a minor official. Further, we are not now
concerned with any such question. We have merely to see whether
the court could take cognisance of the case without previous sanction
and for this purpose the court has to find out if the act complained
against was committed by the accused while acting or purporting to
act in the discharge of official duty. Once this is settled, the case
proceeds or is thrown out. Whether sanction is to be accorded or not
is a matter for the government to consider. The absolute power to
accord or withhold sanction conferred on the government is irrelevant
and foreign to the duty cast on the court, which is the ascertainment
of the true nature of the act.
(emphasis ours)
23. Turning to the words ‘public servant’ appearing in sub-section (1) of
Section 197, Cr. PC, it has not been defined in the Cr. PC; however,
what the words ‘public servant’ denote is found in Section 21, IPC and
by reason of Section 2(y) of the Cr. PC, the meaning of ‘public servant’
as appearing in Section 197 thereof has to be understood in the light
of its definition in Section 21, IPC. Section 21 of the IPC, to the extent
relevant, reads thus:
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 (1 of
1956).
11
24. Although the respondent’s initial appointment letter is not on record,
it has not been disputed before us (in view of the additional documents
th
placed on record by the respondent in terms of an order dated 18
March, 2025) that the respondent was initially appointed by the
Government of Punjab. If not a member of the State’s civil service, the
respondent was most certainly the holder of a civil post. It is further
undisputed that the respondent was sent on deputation to the Union
Territory, Chandigarh from the State of Punjab (P.W.D P.H Branch).
Also, it is not in dispute that vide an order of the Administrator, Union
17 th
Territory, Chandigarh dated 25 February, 2005, the respondent was
relieved to join a new assignment in the Municipal Corporation,
Chandigarh. From time to time, the Governor of Punjab extended the
deputation period of the respondent with the Municipal Corporation,
th th
Chandigarh. Orders dated 13 October, 2006 and 12 July, 2007
placed on record by the respondent evince extension of the deputation
period of the respondent with the Municipal Corporation, Chandigarh
by none other than the Governor of Punjab for specified periods.
Effectively, what these orders did was to temporarily place the
respondent’s service at the disposal of the Municipal Corporation,
Chandigarh. It has not been demonstrated before us by CBI that upon
assignment of the respondent on deputation with the Municipal
Corporation, Chandigarh, he was either absorbed in its services
17
Administrator
12
resulting in severance of relationship with the Government of Punjab
or that, by any order validly made, the respondent ceased to remain a
Government servant once he left the post under the Government he
was serving prior to his deputation.
25. Moreover, clause (1) of Article 311 of the Constitution ordains that no
authority subordinate to the appointing authority can dismiss or
remove a member of the civil service of the State or a civil post holder.
In case the respondent, while on deputation, were to commit a
misconduct warranting either dismissal or removal, it has not been
shown by referring to statutory rules that upon the respondent’s
assignment on deputation, disciplinary control over him stood
transferred from any authority of the Government of Punjab to an
authority of equal rank in the Municipal Corporation, Chandigarh and
such authority had been empowered to take disciplinary action against
the respondent. In the absence thereof, neither the Board of the
Municipal Corporation, Chandigarh nor its Municipal Commissioner
would have the authority or jurisdiction to take disciplinary action
against the respondent had he misconducted himself while discharging
his duty under such corporation.
26. This legal position is fortified by a recent decision of this Court in A.
18
Sreenivasa Reddy v. Rakesh Sharma where a coordinate Bench
has held that protection of sub-section (1) of Section 197, Cr. PC is
available only to such public servants whose appointing authority is
18
(2023) 8 SCC 711
13
the Central Government or the State Government and not to every
public servant.
27. We are of the considered opinion, having regard to the materials on
record, that the respondent while rendering service for the State of
Punjab as well as the administration of the Union Territory was a public
th
servant covered by clause (a) of the 12 description in Section 21, IPC
and despite his assignment on deputation to the Municipal Corporation,
Chandigarh, he continued to remain a public servant for the purposes
of sub-section (1) of Section 197, Cr. PC, being removable from office
by an appropriate authority in the Government of Punjab and none
else. We are afraid, no material which could persuade us to take a
contrary view has been shown.
28. For the foregoing reasons, we find no reason to accept Mr. Raju’s
contention that the respondent ceased to be a public servant upon
being sent on deputation first to the Union Territory, Chandigarh or
when he was relieved by the Administrator for joining a new
assignment in the Municipal Corporation, Chandigarh. The inevitable
result is that the lead appeal and the connected appeal ought to fail.
29. Mr. Raju, sensing the Court’s mind, requested for liberty being granted
to seek sanction under Section 218 of the Bharatiya Nagarik Suraksha
Sanhita, 2023, which has introduced the concept of deemed sanction.
30. In view of the provisions of Section 531 of the BNSS, the Cr. PC stands
repealed; yet, pending proceedings are to be continued under the
14
repealed law. We, therefore, decline Mr. Raju’s prayer. However, liberty
to seek sanction under the Cr. PC, if so advised, is reserved.
31. While holding the impugned order to be correct, these appeals stand
dismissed on the above terms.
………....................J.
(DIPANKAR DATTA)
………....................J.
(MANMOHAN)
NEW DELHI;
APRIL 22, 2025.
15