The Jammu and Kashmir and Ladakh High Court recently comprising of a bench of Justice Sanjay Dhar has observed that there is no need to obtain the previous sanction to prosecute bank officials in connection with offences under IPC/RPC. (STATE BANK OF INDIA ANANTNAG v. G. M. JAMSHEED DAR)
The bench observed that the appointing and removing the authority of the officials of the petitioner Bank is not the Government but it is the competent authority of the State Bank of India that is empowered to do so and therefore, Section 197 of the CrPC [Prosecution of Judges and public servants] are not attracted to the case of bank officials.
Facts of the case
Essentially, a complaint was filed by the respondent-complainant before the Chief Judicial Magistrate, Anantnag, seeking a direction for conducting enquiry/registration of FIR against the officials of the State Bank of India, Branch office Anantnag.
It was alleged that the officials/unknown persons operated the complainant's bank account illegally, thereby inflating the bank account without the the knowledge of the complainant, and fictitious entries/transactions were made in the account head of the complainant.
Contention of the parties
The counsel for the petitioner contended that no offence is made out against the officials of the petitioner Bank is concerned, the determination of merits of the said contention at this moment of time when no process has been issued against the officials of the petitioner Bank would be premature. Any opinion that may be rendered by this Court in this regard would definitely have a bearing upon the course that may be adopted by the learned Chief Judicial Magistrate after getting the report of enquiry from the police. The petitioner has, it seems, prematurely approached this Court when not even process has been issued against the officials of the petitioner Bank, which means that learned Chief Judicial Magistrate has yet to make up his mind whether any offence is made out on the basis of the material before him. In fact, the enquiry report has still not been produced by the police before the learned Chief Judicial Magistrate. It is only thereafter that the learned Magistrate would be in a position to make a, prima facie, opinion as to whether any offence is made out against the officials of the petitioner Bank. The filing of the instant petition, even prior to issuance of process against the officials of the petitioner Bank, is premature, as a prospective accused has no right or locus standi to be heard on the question whether the process should be issued against him or not.
Coming to the second contention raised by learned counsel for the petitioner that it was not open to the learned Magistrate to direct the police to conduct the preliminary verification, the same also appears to be without any merit. A perusal of the trial court record shows that there is no order on record of the file that would indicate that the first complaint filed by the respondent was referred to the police for enquiry by the order of the learned Magistrate. There is only an endorsement by clerk of the Court of Chief Judicial Magistrate, which records that earlier application has been sent for enquiry but no order of the Court could be found on the record of the file to this effect. Although respondent in his complaint filed before the learned Chief Judicial Magistrate had prayed that an FIR should be registered against the officials of the petitioner Bank, yet the learned Magistrate instead of directing registration of the FIR in terms of Section 156(3) of Cr. P. C recorded the preliminary evidence and took cognizance of the complaint, whereafter in terms of Section 202 of Cr. P. C, a direction was issued on 31.07.2018 asking the concerned police to conduct the preliminary verification. The course adopted by the learned Chief Judicial Magistrate is in accordance with law and cannot be found fault with.
The third contention which has been raised by learned counsel for the petitioner is with regard to the bar of limitation. According to the petitioner, cognizance of the offences alleged in the complaint cannot be taken in view of the bar contained in Section 538-B of J&K Cr. P. C. The argument of the learned counsel is misplaced for the reason that respondent in the complaint has alleged commission of offences under Section 409, 420, 120-B, 467, 471 of RPC. Some of these offences carry punishment upto imprisonment for life. Therefore, provisions contained in section 538-B of J&K Cr. P. C, which create a bar to take cognizance after lapse of the period of limitation, is not attracted to the instant case, as the bar to take cognizance of offences carrying punishment of life imprisonment is not applicable at all.
Lastly, it has been argued by learned counsel for the petitioner that officials of the petitioner Bank are public servants and, as such, cognizance of offences against them cannot be taken without previous sanction. He has pressed into service provisions of Section 197 of Cr. P. C in this regard.
Courts observation &judgment
The bench at thievery outset noted, “It is true that the officials of the petitioner Bank come within the definition of public servant as contained in Section 21 of IPC but the officials of the bank are not the public servants who cannot be removed from their office save by or with the sanction of the Government. The appointing and removing authority of the officials of the petitioner Bank is not the Government but it is the competent authority of the State Bank of India who is empowered to do so. Thus, the provisions of Section 197 of the Cr. P. C are not attracted to the case of the petitioners.”
I am supported in my aforesaid view by the judgment of the High Court of Madras in the case of Ramesh Gelli vs. The Inspector of Police, Central Bureau of Investigation, 2017 Supreme (Mad) 1915.
The bench dismissing the petition remarked, “From the foregoing enunciation of law on the subject, it is clear that an official of the bank may qualify to be a public servant and for prosecuting such an official in connection with offences under the provisions of Prevention of Corruption Act, a previous sanction has to be obtained but so far as prosecution of officials of the bank in connection with offences under I.P.C/RPC are concerned, no previous sanction is required.
For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed.”
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