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O.P. Dogra and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1982CriLJ1548
AppellantO.P. Dogra and ors.
RespondentState
Excerpt:
- .....him on two grounds: firstly, that they were not state subjects; and secondly, that they were not public servants within the meaning of section 21 r.p.c.both the grounds were negatived by the special judge, who consequently charge-sheeted them for the aforesaid offences, hence the revision petitions,3. before us the ground that the special judge had no jurisdiction to try them because they were not state subjects was not pressed by the petitioners. they, however, challenged his jurisdiction to try them on two grounds: one, that they were not public servants within the meaning of section 21; and two, that there was absolutely no evidence to connect them with the offence charged. an additional ground that there was no proper sanction to prosecute him was also raised on behalf of.....
Judgment:

I.K. Kotwal, J.

1. This judgment will govern the disposal of Criminal Revision Petitions Nos. 58, 77 and 78 of 1979 as they arise out of the same order passed by Special Judge Anti Corruption, Jammu, and their decision also turns upon the same questions of law and facts.

2. In Oct. 1973, as the prosecution story goes, the petitioner O. P. Dogra, while he was posted as Assistant Divisional Manager, Oriental Fire and General Insurance Company, Jammu, he laid a false claim of Rs. 1,355/- with Messrs. Jupiter Insurance Company, Jammu, with whom the car had been insured that car bearing No. JKN 8228 belonging to Oriental Fire and General Insurance Company, which he was using in his official capacity, had met with an accident. On this, the company with which the car had been insured, deputed petitioner Balrai Kohli, a surveyor, to assess the damage and make a report accordingly. Suspicion having arisen that he had submitted a false report in conspiracy with petitioner O. P. Dogra, another person namely, J. K. Whig was appointed to assess the damage, who reported that the car had not met with any accident at all, and the claim made by petitioner O. P. Dogra was false and fabricated. Petitioner Sat Brat Sharma, who was then Regional Manager, Jupiter Insurance Company, Amballa, on receipt of the report submitted by J. K. Whig, persuaded the latter to change his report so as to conform to the one submitted by petitioner Balrai Kohli. He did not change his report, but added a para to it that in the interest of both the companies the accident claim to the extent it was verified by petitioner Balrai Kohli may be allowed. On this, petitioners Sat Brat Sharma and Jugal Kishore, who were the members of the Claims Committee, allowed the claim as a consequence whereof a sum of Rs. 742/- was paid to petitioner O. P. Dogra by means of a cheque which was also encashed by him. On these allegations a challan under Sections 120-B, 420, 468 and 471 R.P.C. and Section 5(2) of the Jammu & Kashmir Prevention of Corruption Act, 2006, was put up against all the aforesaid four petitioners in the court of Special Judge Anti Corruption Jammu. The petitioners challenged their trial before him on two grounds: firstly, that they were not state subjects; and secondly, that they were not public servants within the meaning of Section 21 R.P.C.

Both the grounds were negatived by the Special Judge, who consequently charge-sheeted them for the aforesaid offences, hence the revision petitions,

3. Before us the ground that the Special Judge had no jurisdiction to try them because they were not State subjects was not pressed by the petitioners. They, however, challenged his jurisdiction to try them on two grounds: one, that they were not public servants within the meaning of Section 21; and two, that there was absolutely no evidence to connect them with the offence charged. An additional ground that there was no proper sanction to prosecute him was also raised on behalf of petitioner Balraj Kohli.

4. To show that the petitioners except Balraj Kohli, who he frankly conceded, and in our opinion rightly so, is not a public servant. Mr. S. D. Sharma, the learned Additional Advocate General has placed reliance upon Clause Fifteenth of Section 21 R.P.C., the relevant portion whereof reads as under:

Every officer or servant, and every member (by whatever name called) of a corporation engaged in trade or industry or of any other autonomous body which is establish by an Act of the State Legislature or of a Government Company as denned in any law for the time being in force in the State.

Mr. Sharma's reliance on this clause is twofold. His first contention is that the petitioners being employees of a financial corporation are public servants within the meaning of the first part of Clause Fifteenth, read with explanation 4 appended to it, which says that the expression 'Corporation engaged in any trade or industry' includes a banking insurance or financial corporation. His second contention is that Messrs. Jupiter Insurance Co. having merged with the Oriental Fire and General Insurance Company, and the shares of the latter company having vested in the Central Government under the provisions of the General Insurance Business (Nationalisation) Act, 1972, hereinafter to be referred to as the 1972 Act, the petitioners are employees of a Government company and, therefore, public servants within the meaning of second part of Clause Fifteenth.

5. Clause Fifteenth no doubt runs into two parts. Its first part provides that all officers, servants and members of a corporation engaged in trade or industry or of an autonomous body established by the Act of the State Legislature, shall be public servant, and its second part provides that all officers, servants and members of a Government company, as defined in any law in force in the State, shall also be public servants. Its first part read with Explanation 4 no doubt confers the status of a public servant on an officer or servant of an insurance corporation, but before that can happen, it has further to be shown that the corporation is the creature of a statute passed by the State Legislature. The expression 'which is established by an Act of the State Legislature', occurring in the Clause qualifies not only autonomous bodies but also corporations of which this clause speaks. Assuming that the Oriental Fire and General Insurance Company of which the three petitioners are the employees is a corporation, they cannot still be held to be public servants, because it is common ground that this company has not been established by any enactment passed by the State Legislature.

6. This brings us to the second limb of Mr. Sharma's argument that the petitioners except Balraj Kohli being employees of a Government company are public servants within the meaning of the second part of Clause Fifteenth. Messrs. Jupiter Insurance Company, it is common ground, merged with Oriental Fire and General Insurance Company under Section 16 of the 1972 Act before 2-1-1973 i.e the appointed date in terms of Clause (b) of Section 3 of the Act. All the shares in the capital of these two insurance companies stood transferred in favour of the Central Government and thereafter vested in it in terms of Sub-section (1) of Section 4 of the said Act, with the result, that the Oriental Fire and General Insurance Company became a Government company as defined by Section 617 of the Companies Act - Central Act No. 1 of 1956 applicable to the State of Jammu and Kashmir which reads as under:

617. Definition of 'Government company' - For the purposes of this Act Government company means any company in which not less than fifty one per cent of the paid up share capital is held by the Central Government, or by any State Government or Governments, Or partly by the Central Government and partly by one or more State Governments and includes a company which is a subsidiary of a Government company as thus defined.

This definition has been adopted by virtue of Clause (h) of Section 3 of 1972 Act for the purposes of this Act also. Mr. Sharma may be, therefore, right in urging that the petitioners O. P. Dogra, Satbrat Sharma and Jugal Kishore having become employees of a Government company became public servants within the meaning of Clause Fifteenth of Section 21 with effect from the date the shares of Oriental Fire and General Insurance Company vested in the Central Government, But, in raising this argument he clearly overlooks the provisions of Sections 9 and 10 of the 1972 Act, which, for the sake of ready reference, are reproduced as below:

9. Formation of General Insurance Corporation of India.

(1) As soon as may be after the commencement of this Act, the Central Government shall form a Government company in accordance with the provisions of the Companies Act, to be known as the General Insurance Corporation of India for the purpose of superintending, controlling and carrying on the business of general insurance.

(2) The authorised capital of the Corporation shall be rupees seventy-five crores, divided into seventy-five lakhs fully paid-up shares of one hundred rupees each, out of which rupees five crores shall be the initial subscribed capital of the Corporation.

(3) Notwithstanding anything contained in the Companies Act, 1956, it shall not be necessary to add the word 'Limited' as the last word of the name of the Corporation.

10. Transfer to Corporation of shares vested in Central Government.

All the shares in the capital of every Indian Insurance company which stand transferred to and vested in the Central Government by virtue of Section 4 with the exception of the shares transferred to any person under Sub-section (2) of that section shall immediately after such vesting, stand transferred to and vested in the Corporation and every Indian insurance company shall forthwith give effect to such transfer of shares and rectify its register of members by including therein the Corporation as the holder of such shares.

7. Under Section 9, the Central Government has been empowered to form a Government company to be known as the General Insurance Corporation of India for the purpose of superintending, controlling and carrying on the business of general insurance. This corporation, according to the petitioners, came to be formed by the Government before October, 1973, and this fact has not been disputed before us by the learned Additional Advocate General as well. It is also common ground that these three petitioners are not the employees of the Corporation but continue to be the employees of the Oriental Fire and General Insurance Company. This Insurance company ceased to be a Government company, the moment the Corporation in terms of Section 9 came to be formed, because all the shares in the capital of the company which had vested in the Central Government in terms of Section 4, ceased to vest in it and immediately vested in the Corporation by force of Section 10 of the Act. Consequently, the petitioners also ceased to be public servants within the meaning of Clause Fifteenth of Section 21. It, therefore, follows that they could no be tried under Section 5(2) of the J & K Prevention of Corruption Act, 2006. It is true that they have been charged for other offences also, but unless the charge under Section 5(2) against them is sustainable, the Special Judge Anti Corruption cannot try them for other offences also. Obviously, therefore, the entire proceedings pending before him against the petitioners are without jurisdiction.

8. The learned Additional Advocate General also invited our attention to Section 31 of the 1972 Act and raised an argument, even though half heartedly, that the petitioners being employees of the Oriental Fire and General Insurance Company would still be public servants for the purpose of Section 5(2) of the J & K Prevention of Corruption Act, 2006. Section 31 no doubt makes them public servants but only for the purposes of Chapter IX of the Indian Penal Code and not for the purposes of Chapter IX of the Ranbir Penal Code. Merely because the provisions of Chapter IX of the Indian Penal Code are in pari materia with the provisions of Chapter IX of the Ranbir Penal Code, Section 31 shall not be attracted to it.

9. In the result we allow the revision petitions and quash the entire proceedings pending against the petitioners before Special Judge Anti Corruption, Jammu. We, however, refrain from expressing any opinion on the merits of the case and make it clear that this order shall not be interpreted to mean that the petitioners cannot be tried for these offences under ordinary law.


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