TMI Blog1982 (7) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the notice. The Dda did not agree and after some more correspondence its Additional Secretary acting under sections 49/52 of the Act read with its resolution dated 15/7/1978 issued on 12/6/1981, section for the prosecution of the said Bank and its Chairman Mr. M.K. Vig for non-conforming user under section 29(2)(2) read with sections 14 and 32 of the Act. In pursuance of this sanction, a complaint was lodged on 14/7/1981 in the court of the Metropolitan Magistrate by the Additional Secretary (Prosecution) with Delhi Development Authority shown as the complainant. That very day, the learned Metropolitan Magistrate exempted the Additional Secretary from personal attendence, since he was a public servant. This was done under clause (a) of the first proviso to section 200 Cr. P C. because the complaint was made in writing by a public servant acting or purporting to act in discharge of his official duties and in such a case the Magistrate need not examine the complaint. After perusal of the complaint and the documents, he directed issue of process against the accused. The- accused filed a revision petition Cr. R. 259 of 1981 on 26/8/1981 in this court against the said order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-prepared cyclostyled papers by filiing up the blanks and that ex fade most certainly evidences that there is nonapplication of mind both on part of the sanctioning and the complaining authorities and on the part of the learned Magistrate. That vitiates the proceedings at the very threshhold. 2. That the business of banking is a publie utility which is a permissible user in a residential area under the master plan. 3. That in case of Staff Training College of Oriental Bank of Commerce there was no non-comforming user because a hostel was being run which is a permitted user in a residential area according to the master plan and the zonal plan. 4. The punishment prescribed for the offence they are charged with is only fine. The complaints were, therefore, barred by limitation under section 468(2)(a) Cr. P C. because either of them were instituted after expiry of six months. 5. That the Chairmen who were also the Managing Directors and Chief Executives of the said Banks were public servants within sub- clause(b) of clause 12 of section 21 of the I P.C. In case of the Oriental Bank it was further urged that on 29/12/1980, accused Vig was a Custodian and, therefore, a statutory publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounts to a school, a permissible use according to master plan, how much of the premises are being used for training how much for the hostel are all questions to be decided at the relevant time by the court below. I do leave all these facts in the first instance to be determined there, if need be. For this view I have the support of Delhi Development Authority v, Smt. Lila D. Bhagat , and Delhi Development Authority v Principal, Vocational Training College . (10) As a matter of fact, that part of the contentions which related to limitation and sanction under section 197 Criminal Procedure Code . mainly engaged our attention. I now propose to deal with them. (11) The case of the petitioners is that in the case of the Oriental Bank of Commerce, the complaint is barred by fifteen days and in case of the Punjab National Bank by one day. It was urged before the learned single Judge on behalf of the Delhi Development Authority that the period of limitation in such a case shall commence on the first day on which the offence came to the knowledge of the person aggrieved by the offence and that in view of the decision of this court in Gurmeet Kaur (supra), the Delhi Development Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1980} 2 W.L.R. 579 at 585. The simple meaning of the words person aggrieved in the context of this section, therefore, should be a person having suffered loss or injury, a victim of the crime. This will also include a person or an authority who is by or under any law charged with the duty to administer it and to prosecute those who violate its provisions As a matter of fact, in a criminal case, any person can set the law into motion and in case of a non-conforming user, besides the Dda, a neighbour or even a local resident will be a 'person aggrieved', it is a sort of public interest prosecution. I am, therefore, with respect, unable to subscribe to the view taken in Sulochana v State Registrar of Chits. 1978 Cr. L.J. 116, that the words 'person aggrieved by the offence' occurring in section 469(1) (b) (c) should be given a limited or restricted coverage, viz. one who is personally and directly affected by an offence, and not to any member of the public or even an officer who is charged with the duty of enforcing the prohibitory regulations, under a statute. This view was based upon Ex parte Sidebotham, (1880) 14 Ch. D. 458, which was overthrown in Attorney Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly filed the complaint or who is aggrieved by the act of the accused will not be the complainant. I draw support for this proposition from S.P Dubey v. Narsingh Bahadur,. In practice too they are all usually described as complainants and rightly so because they are either victims of the offence or desire or are enjoined to see that the offender be dealt with. If that were not so, how will the Magistrate apply the first proviso to section 200 Criminal Procedure Code . If the Delhi Development Authority is the sole compainant and the public servant who files the complaint is not the complainant, then shall the Magistrate call all the members of the Delhi Development Authority to be examined on oath ? That certainly will be embarrassing in the most for all those who will be concerned. I am, therefore, of the view that both the Dda and the public servant who files the complaint will be considered complainants. Assuming that the Delhi Development Authority is the sole complainant and thus, a person aggrieved, and that it has to act through its officers authorised by it, can the knowledge of the inspecting officer be imputed to the DDA? It cannot be, because until the matter comes to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge (15) The point that was more seriously agitated in this connection was whether an offence under section 29(2) of the Act is a continuing offence and the provisions regarding limitation cannot apply in case of an offence which continues on the date the Magistrate takes cognizance thereof. According to section 469(l)(a) Criminal Procedure Code . the period of limitation in relation to an offender in the first instance shall commence on the date of the offence. Section 472 Cr. P.C. provides that in case of a continuing offence a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. The bar of limitation under section 468 Cri P.C., it must be clearly understood, is imposed not on the filing of the complaint but on taking cognizance thereof by the court, that is when the Magistrate applies his mind to the contents of the complainant, information or police report or on his own knowledge with a view to deal with the offence. And. therefore, it is correct to urge that what the court has to examine is whether on the date of taking cognizance by it, the offence was or was not within the period of limitation prescribed by section 468 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch an offence ? It has now been solved by an amendment made in 1964 that after the first conviction, if the offence continues, then the offender shall be required to pay a daily fine. It clearly implies further that this is an offence which is committed de die in diem so long as the misuse does not discontinue. The amendment has been made just to overcome the type of procedure suggested by the learned Judge that in case of a continuing offence a succession of complaints must be continued to be filed. I have had an occasion to examine this matter in Narain Dutt Jhamb v M C D. State , wherein I have held that continued use of a building without completion certificate issued by the M.C.D. is a continuing contravention because it was susceptible of continuance and is distinguishable from the one which is committed once and for all. It arises out of a failure to obey or comply with a rule or its requirements and involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. (18) There is no substance in the argument made by the learned counsel for the petitioners that unless a conviction is first obtained, there is no continuity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure Code . provides that way. Section 470(3) Criminal Procedure Code . simply says that where previous consent or sanction is required the period for obtaining such consent or sanction shall have to be excluded. Therefore, if the time taken in obtaining sanction from 29/12/1980 in one case and from 13/1/1981 in the other to the date of issue of sanction, as is obvious and from the record, is excluded, the plea of limitation cannot be sustained in view of the provisions of sub-section (3) of section 470 Criminal Procedure Code . I have, therefore, no hesitation in holding : (1) In case of Dda, when the case is sought to be covered by section 469(l)(b) Criminal Procedure Code ., the period of limitation shall be counted from the date when the matter comes to the knowledge of the sanctioning authority. (2) The offence under section 29(2) of the Act is a continuing offence and in fact it continued indisputably on the date the cognizance was taken. Therefore, the bar of limitation cannot be raised in view of section 469(l)(a) read with section 472 Cr. P.C. (3) The period spent in giving the notice where such notice is in fact given and the time taken in obtaining sanction where s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere under, and the facts stated in the complaint and notifications of the appointments of the accused. The petitioners canvass that they are public servants within the meaning of sub-clause (b) of clause 12 of section 71 of the Indian Penal Code. They are not statutory public servants like the Custodian who was declared so by section 14 of. the Banks Act. Here, I may as well before I discuss other matters, dispose of the contention raised by the learned counsel for the petitioners that in the case of the Oriental Bank of Commerce, on the date of offence is said to have been detected the present Chairman Mr. Vig was the Custodian and, therefore, was entitled to the protection of section 197 Criminal Procedure Code . This contention could not be upheld because what we are here concerned with is a continuing offence and by the time the Magistrate took cognizance of the offence, the accused had long since ceased to be a Custodian and, therefore, public servant within the meaning of the section 14 of the Banks Act. Resuming the principal argument, let us read clause (12)(b) of section 21 of the Indian Penal Code : The words 'public servant' denote a person falling under any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being . (3) Stc, Lic, Ongc, Ifc, etc. are examples of the corporations which are covered by the said clause Twelfth. (4) The Super Bazar was a body corporate established in pursuance of the Bombay Co-operative Societies Act, 1925 but was not a Corporation, established by or under the statute within the meaning of the said clause Twelfth. (5) The manager of the Super Bazar was not employed in connection with the affairs of the Union, because the Super Bazars though heavily financed by the Government are not owned by the Central Government but are owned and managed by the Co-operative Stores Ltd. (27) Let us then examine the case of the Chairman petitioners in the light of the observations of the Supreme Court. By sub-section (1) of section 3 of the Banks Act, new Banks were constituted and sub-section (4) thereof provided:- EVERYcorresponding new bank shall be 'body corporate' with perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of clause 12. But then how to describe such a body corporate ? The learned counsel for the Dda submitted that a similar question in an identical situation came to be examined by Salmond. In a footnote (k) in para 67 in Chapter X relating to Corporations in his celebrated treatise Jurisprudence , Ed. 1966, page 66, he has said: Occasionally in the statute book we find the so-called Corporations which are in truth not corporations at all-having no incorporated members, but are merely personified institutions. The Commonwealth Bank of Australia constituted by an Act of the Federal Parliament of Australia is an example. See the Commonwealth Bank Act, 1911, s. 5. A Commonwealth Bank to be called the Commonwealth Bank of Australia is hereby established Section 6 THEBank shall be a body corporate with perpetual succession and a common seal, and may hold land and may sue and be sued in its corporate name. (29) The petitioner Banks, therefore, can be described a personified institution, an artificial legal person no dobut 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in itself make him servant or employee of the Bank. Explaining the position of a director in Tesco Super-Markets Ltd v. Nattras, 1972 Ac 153, Lord Reid said that he is not acting as servant, representative, agent or delegate. He is an embodiment of the company. He is the very ego and centre Haldane in Lennasd's Carrying Co. Ltd v. Asiatic Petroleum Co. Ltd. 1915 A.C. 705. As pointed out in Delhi Development Authority v. Punjab National Bank, (supra) their action is the very action of company itsef. If that is so, then they cannot claim to be servants or employees of the corporation. This contention stands reinforced by the provisions of cls. (d), (e), (f ) (K) of sub-section (2) of section 19 of the Banks Act under which regulations are required to be made by the Board of Directors to provide for appointment and other conditions and benefits of service of the officers and employees of the Bank. In other words, directors are not envisaged to be employees or officers of the Bank and that is why their appointment and emoluments etc. are regulated separately by the provisions of the Scheme made under section 9 of the Banks Act. Section 16 of the Banks Act has made provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hikkavenkatappa and another, Air 1965 Mys. 253, I M Pendse v. Chandragopal Pyarelal Mahajan, 1972 Cri. L.J. 1207, and isher Dass v. Amamath, 1973 Cri. L.J. 718, for the reasons given therein that removal cannot be construbd in a limited sense and it must mean removal by an act of some agency or authority apart from the automatic vacation of office under some statutory provision. Though under section 16 of the General Clauses Act, 1897, the appointing authority can remove a person appointed by it, but the provisions of the General Clauses Act are not made applicable to the Scheme. Nor do I find any such general proposition, apart from Art. 311 of the Constitution, that a person cannot be removed by an authority subordinate to that by which he was appointed. It is one thing to urge that the Government which appoints, can dismiss him as it is the privilege of the employer but in the absence of any provision, it is quite another to say that no person other than the Government can remove him. It cannot be said categorically that the Chairman is a person who cannot be removed save by or under the authority of the Central Government. That lacuna is there in the Scheme and it is not possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Earl Jowitt's Dictionary of English Law a public office is one which entitles a man to act in the affairs of others without their appointment or permission, lam singularly doubtful if one can say that the Chairman, or for that matter, any director of the Bank, can be considered to hold any position exercising any bit of soverign power acting in the affairs of others without their permission. The whole business of the Bank is being carried on by the body corporate. If the state itself had directly done the business, it could be considered as an exercise of soverign executive power. But that is not so. Then, it is extremely difficult to describe the duties or functions performed by the petitioners as official duties or functions. More important is the other aspect that the Chairman is not being prosecuted because he has committed the offence. The offence has been committed by the Bank but the Chairman is being prosecuted because the Board of Directors is responsible for the management and control of the business of the Bank, vide D D.A. v. Punjab National Bank (supra). (34) Granting that the offence was committed by the Chairman in his official capacity, while holding an offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be held to be employees of the Union and that leads to the inevitable inference that the Chairman and directors of the Banks are not employed in the affairs of the Union. To make their appoinmtents and to exercise control over them is an Economic Affair of the Union, but the hiring of the premises by the Banks in pursuance of their business cannot be called an affair of the Union. (36) Stage has now come when I should consider the three rulings relied upon by the learned consel for the petitioners in order to show that the petitioners are public servants employed in the affairs of the Union. He first relied on Chini Mazdoor (supra) wherein the employees were held to be employed in connection with the affairs of the State, but that was because the sugar factory was purchased by the State Government and, was directly administered by it and not by or through any corporation or company. This case has, therefore, no application here. (37) He next referred to Dr. A.S. Rao. v.C. N N Kutty and another, 1978 Cr. L.J. Noc 65 (AP). It was held in this case that the Managing Director of the Electronics Corporation of India Ltd. in which the Central Government had one lac shares minus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations in Regional Inspector of Mines Parsia v. K. K. Sengupta and others, 1973 Cr. L.J. 1671. As regards whether a nationalised Bank is a corporarion or not, with utmost respect, I disagree with the observations made in Kurian (supra). The learned Judges have given no reasons for their view, as I have attempted to do, as to why I consider though the nationalised Bank is a body corporate, it is not a corporation within the meaning of section 21 Indian Penal Code . (40) I must, therefore, uphold the contention of the Dda that the Chairman or the directors of the said two Banks do not satisfy the conditions of section 197 Cr. P.C. I have come to this conclusion after weeks spent in attempting to come to another. (41) Having considered in detail the available facts, enactments, precedents and arguments, I answer the reference in following manner : (1) The bar of limitation will not be attracted in these cases ; (2) No sanction under section 197 Cr. P.C, is required for prosecution of the accused. (42) The only grounds on which the prosecution was challenged in these revisions were these two. Since these are being decided against the petitioners the revision petitions ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
