RAMESH GELLI Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) This Criminal Revision Case is filed by the petitioner seeking to set aside the order passed in Crl.M.P.No.5944 of 2016 in C.C.No.3 of 2009 pending on the file of the learned XI Additional Special Court at Chennai and direct the trial Court to return back the charge sheet filed by the respondent in lieu of the dictum laid down by the Honourable Supreme Court in N.K.Ganguly Vs. Central Bureau of Investigation reported in 2016 (2) SCC 143.

(2.) The contention of the learned counsel appearing for the revision petitioner is that the petitioner was former Chairman-cum-Managing Director of Global Trust Bank which later got merged with Oriental Bank of Commerce. Based on the complaint of the year 2004, an F.I.R. was registered on 26.03.2007 by the respondent police which entrusted with specific task of investigation of bank securities and fraud cases. The main contention of the revision petitioner is that he being a servant of private bank, cannot be considered as public servant to be prosecuted under the Prevention of Corruption Act. However this contention, in a different case, was negatived by the Honourable Supreme Court to the extent that under Sec. 46-A of the Banking Regulation Act, for offence under Chapter IX of IPC, the employees of the bank covered under the Banking Regulation Act will be treated as public servants. Later, provisions in Chapter IX of Penal Code namely, Sections 161 to 165-A was omitted in Penal Code and incorporated in the Prevention of Corruption Act, 1988. The corresponding amendment was not brought into the Banking Regulation Act. However, the Honourable Supreme Court has held that it is a causes omissus. As far as substitution of Sections 161 to 165-A under Chapter IX of Penal Code by Prevention of Corruption Act, it is strenuously contended by the learned counsel for the petitioner that the Sections analogous to old Sections 161 to 165-A of Penal Code are only Sections 7 to 12 of the Prevention of Corruption Act and not Sec. 13 of the Prevention of Corruption Act. For that effect, a clarification has also been given by the Honourable Supreme Court in the earlier case filed by the present revision petitioner. Therefore, even if a private Bank employee is a public servant as per Sec. 46-A of the Banking Regulation Act, 1949, the said deeming clause shall apply only to Sections 7 to 12 of the Prevention of Corruption Act and not for Sec. 13 of the Prevention of Corruption Act.

(3.) In the light of the above factual background, the petitioner has filed an application before the trial Court to return back the charge sheet. Since, the prosecution has not applied necessary sanction under Sec. 197 Crimial P.C. 1973 as per the dictum laid down by the Honourable Supreme Court in N.K.Ganguly Vs. Central Bureau of Investigation reported in 2016 (2) SCC 143, whenever there is an allegation against the accused in discharge of official duty, it is mandatory that while prosecuting the accused under the I.P.C., offence, sanction under Sec. 197 Crimial P.C. 1973 is necessary. In the absence of sanction, charge sheet has to be returned.