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PETITIONER: MOHD. HADI RAJA

       Vs.

RESPONDENT: STATE OF BIHAR AND ANR.

DATE OF JUDGMENT:       28/04/1998

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT: [WITH CRIMINAL  APPEAL NO.  449/87 S.L.P.  (Crl.) Nos. 2501, 2502/93, 1710,1709/94,  2006,3689, 3856/94, 977, 1837, 1838, 3259//95, 1328/96,  69/95, 3816, 3751, 3971/96, 819, 892/97, 3632/96, 1182/97]                       J U D G M E N T G.N. RAY. J      The common  question of  law that  arises in  all these matters is  whether the provisions of sanction under Section 197 of  the Code  of Criminal procedure, 1973 are applicable for prosecuting  officers of the public sector under takings or the  Government companies  when on  account of  deep  and pervasive control  of finance  and  administration  of  such undertakings and  government companies,  they  are  held  as State within  the meaning  of Article 12 of the Constitution of India?      It will  be appropriate  at this  stage to refer to the provisions  of   Section  197   of  the   Code  of  Criminal procedure:-           " section  197: Prosecution of      Judges and  Public Servants  :  (1)      when any  person who  is or  was  a      judge or  magistrate  or  a  public      servant  not   removable  from  his      office save by or with the sanction      of the Government is accused of any      offence  alleged   to   have   been      committed by  him while  acting  or      purporting to  act in the discharge      of his  official  duty.  no  Courts      shall  take   cognizance  of   such      offence except  with  the  previous      sanction.      (a) in  the case of a person who is           employed or as the case may be           ,   was   at   the   time   of           commission  of   the   alleged           offence      employed,      in           connection with the affairs of           the  Union,   of  the  Central           Government.

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    (b) in  the case of a person who is           employed or  as the  case  may           be,  was   at  the   time   of           commission  of   the   alleged           offence      employed,      in           connection with  the affair of           a   State,    of   the   State           Government.      Provided  that  where  the  alleged      offence was  committed by  a person      referred to  in Clause  (b)  during      the  period  while  a  proclamation      issued under  Clause (1) of Article      350  of  the  Constitution  was  in      force it  a State  Clause (b)  will      apply  as  if  for  the  expression      "State       Government"       were      substituted.      (2) No  Court shall take cognizance           of any offence alleged to have           been committed  by any  member           of the  Armed  Forces  of  the           Union    while    acting    or           purporting  to   act  in   the           discharge of his official duty           except   with   the   previous           sanction   of    the   Central           Government.      (3) ...............      (4) ................ Under the aforesaid provisions, in respect of prosecution of an accused  who was  or is a judge or Magistrate or a public servant and  not removable  from his  office save by or with the sanction of the government and if such person is accused of any  offence alleged  to have been committed by him while acting or purporting to act in the official discharge of his duties, no  Court would  take  cognizance  of  such  offence except with  the previous  sanction as enumerated in Clauses (a) and (b) of sub-section (1) of Section 197 of the Code of Criminal  procedure.  For  the  purpose  of  requirement  of sanction  under   Section  197   of  the  Code  of  Criminal Procedure, the accused will not only be a public servant but he will  be such  public servant who can not be removed from his office except by or with the sanction of the Government. Further, the  accused will  not only  be a public servant of above description  but the  offence  alleged  to  have  been committed by  such officer  must have  been committed  while such public  servant had been acting or purporting to act in the discharge of his official duties.      It is,  therefore, necessary  to  analyses  whether  an officer of  public sector  undertakings  or  the  government companies being  State within  the meaning  of Article 12 of the Constitution,  who under the terms of the appointment or the articles  of the association of the government companies are  removal  from  their  respective  office  save  by  the sanction of  the government when the offence alleged against them had been committed while acting or purporting to act in the discharge of official duties.      What acts  can be  alleged to  have been committed by a public servant  while acting  or purporting  to act  in  the discharge of his official duties is a vexed question and had often troubled  various courts including this Court. Broadly speaking, it has been indicated in various decisions of this Court that  the  alleged  action  constitution  the  offence alleged to  have been  committed by  the public servant must

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have a  reasonable and  rational  nexus  with  the  official duties required  to be discharged by such public servant. It is, however not necessary to elaborate on this aspect of the purpose of  deciding the  question raised  in these matters. The question  for decision  is that even if in a given case. The concerned  officer of  the public  sector undertaking or the government  company being  State under Article 12 of the Construction  is  removable  from  office  by  or  with  the sanction of  the government  and such  officer is alleged to have committed  an  offence  by  his  action  which  can  be construed as  action taken while acting or purporting to act in  the  discharge  of  his  official  duties,  whether  for prosecuting such  officer, sanction under Section 197 of the Code of Criminal Procedure is warranted or not.      It may  be stated  here that considering the importance of the  question, notice  was given  to the learned Attorney General for  his opinion  as to  the requirement of sanction under Section  197 (1)  of the Code of Criminal Procedure in the case  of officers  of public  sector undertakings or the government companies.      Mr.  Altaf Ahmad,  learned Additional Solicitor General appeared for  the learned Attorney General and has submitted that the officials of the public sector undertakings and the government companies  which are  State within the meaning of Article  12   of  the   Constitution  will  enjoy  the  same protection as  available to  a public  servant under Section 197  of   the  Code  of  Criminal  Procedure,  although  the officials  of   the  public   sector  undertakings  and  the government companies  are not  directly the employees of the State Government  or the  Central Government  but they being employees of the instrumentalities of the government deserve to be  treated at  par with  the government  servant for the purpose of  protection by  way of  requirement  of  sanction under Section 197 of the Code Criminal Procedure.      The learned  counsel appearing  for the  appellants  in other matters  have also  submitted to  the same effect. The contentions of the learned counsel for the appellant, may be summarized as follows:      The government  in these  days are  discharging some of the activities,  intended to  be performed by the State, not directly but  through the  instrumentality or  the agency of State. In  the early  days, when the government had indulged in limited  functions, it could operate effectively directly by its  officers constituting  the civil  service  and  such employees directly  under the government were found adequate to  discharge   governmental   functions   which   were   of traditional vintage.  But with  the advent of welfare state, government interventions  have been  multiplied and  it  was increasingly felt  that the framework of civil service could not  cope   with  the   new  tasks  which  were  very  often specialised and the technical in nature. In this connection, reference has  been made  to the  decisions of this Court in Ajay Hasia  Vs. Khalid  Mujib Sehravadi  (AIR 1989  (1)  SCC 712). It  has been  held  in  the  said  decision  that  the inadequacy of  the civil  service to  deal  with  these  new problems came  to be  realised and  it became  necessary  to forge a  new instrumentality  or administrative  device  for handling these  new problems.  It was in these circumstances and with  a view to supplying this administrative need, that the corporation  came into  being as  the third  arm of  the government and  over the  years  it  has  been  increasingly utilised by the government for setting up and running public enterprises and  carrying out other public functions. It has also been  held in  the said  decision that  with increasing assumption by  the government  of  commercial  ventures  and

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economic projects,  the corporation  has become an effective legal  contrivance  in  the  hands  of  the  government  for carrying out  its activities for it is found that this legal facility  of   corporate  instrument  provides  considerable flexibility  and   elasticity  and  facilitates  proper  and efficient  management   with  professional   skills  and  on business  principles   and  it   is  blissfully   free  from departmental rigidity,  slow motion  procedure and hierarchy of officers. It has also been held in Ajay Hasia’s case that so far  the said  instrumentalities are  concerned, the true owner is  the State,  real operator  is the  State  and  the effective controllorate  is the  State, real operator is the State and  the effective  controllorate is the state and the accountability for  its  action  to  the  community  and  to parliament is of the State. This court has further indicated that it  is undoubtedly  true  that  the  corporation  is  a distinct juristic  entity with  a corporate structure of its own and  it carries  on its functions on business principles with a certain amount of autonomy which is necessary as well as useful  from the  point of  view  of  effective  business management but  behind the formal ownership which is case in the corporate  mould, the  reality is  very much  the deeply pervasive presence of the government. Therefore, in reality, the government acts through the instrumentality or agency of the corporation.  Therefore, where  the  corporation  is  an instrumentality or  agency of  the government,  it  must  be subjected  to   the  same   limitation  in   the  field   of constitutional law  as the  government itself, though in the eye of  the law it would be a distinct and independent legal entity.      In  support  of  the  contention  that  sanction  under Section 197  of the  Code of Criminal Procedure is warranted in  the   case  of   officers  of  public  undertakings  and government companies  having deep  and pervasive  control of the government,  it has  been submitted  that the  object of sanction under Section 197 of the Code of Criminal Procedure is to  guard against  vexatious proceedings  against judges, magistrates and public servants and to secure the opinion of superior authority whether it is desirable that there should be  prosecution   against  public  servants  satisfying  the requirements of  Section 197  (1) of  the Code  of  Criminal Procedure. In  this Connection,  reference has  been made to the decision of this Court in Director of inspection & audit and others  Vs. C.L.  Subramaniam (1994  Suppl. (3) SCC 615) and in Shambhoo Nath Misra Vs. State of U.P. & Others ( 1997 (5)  SCC  326).  In  the  said  decisions,  this  Court  has indicated  that   sanction  by   appropriate  authority   as contemplated in  Section 197(1)  of  the  Code  of  Criminal Procedure,  is  intended  to  protect  public  servant  from needless harassment.  Such protection  by  way  of  sanction renders assurance  and protection  to the  honest officer to perform public  duties honestly  and  to  the  best  of  his abilities because  the threat of prosecution demoralises the honest officer.      It has  been contended  that if the public undertakings and the  government companies which conform to various tests of deep  and pervasive  control of  the government over such public undertakings or the government companies as indicated in some  of the  decisions of the Court, then the officer of such corporation must be held to be a public servant for all intents and purposes and for applicability of Section 197 of the Code  of Criminal  Procedure. If  such public servant of public undertakings  etc. is  not removable  from his office save by or with the sanction of the government , and if such officer is  made accused of any offence alleged to have been

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committed by  him while  acting or  purporting to act in the discharge of  his official  duties, then no Court shall take cognizance of  such  offence  in  the  absence  of  sanction contemplated under  Section 197  of  the  Code  of  Criminal procedure even though ex facie, such officer is not directly a  government  servant  because  by  piercing  the  veil  of corporate structure, such officer must in reality be treated as a public servant holding office under the government.      The learned counsel have also submitted that since such public undertakings  and government  companies are third arm of the  government, for  the  purpose  of  sanction    under Section 197  of the Code of Criminal Procedure, the officers of such  public undertakings  must be placed at par with the government servants because such officers in fact, discharge the duties and functions of  the State government.      In this  connection, reliance  has  been  made  to  the decision of  this Court in C.V. Raman Vs. Management of Bank of India  and another  (1983 (3) SCC 105). In the said case, the employees  of the  State Bank and the nationalised banks contended that  such banks  cannot be treated to be owned by the Central Government and the expression ’Under the Central Government" appearing  in the  shops and  Establishments Act would only  mean  under  complete  control  of  the  Central Government in  the sense  of  being  owned  by  the  Central Government.  This   Court,  however,  did  not  accept  such contention by indicating that Article 12 of the Constitution occurs in  Part III of the Constitution which deals with the fundamental rights.  Therefore, the  decisions in  the  case dealing with  Article 12  of the  Constitution or  with  the fundamental rights,  cannot be  made a  basis for contending that the  State Bank of India and the nationalised banks are establishments under  the Central Government for the purpose of  applicability   of   the   provisions   of   Shops   and Establishments Act. But it has been observed in C.V. Raman’s case that  although the  decisions relating to Article 12 of the Constitution vis a vis public undertakings were rendered in connection with the enforcement of fundamental rights, it cannot be  gainsaid that  the salient  principles which have been laid down in those cases with regard to the authorities having a  corporate structure  and  exercising  autonomy  in certain spheres  and discharging functions of the government under  a   corporate  veil  will  certainly  be  useful  for determining the  question as  to whether  the State  Bank of India and  the nationalised  banks  are  to  be  treated  as establishments  under   the  Central   Government  for   the enforceability of the Shops and Establishments Act.      Relying on  the said  decision, it  has been  contended that  when   the  instrumentality  and  the  agency  of  the government through  the corporate  veil is  the third arm of the government  and such  instrumentality is discharging the functions  which  the  government  had  intended  to  do  by evolving  the   mechanism  or  contrivance  of  a  corporate structure, the  officers of  such corporate structure should not be treated differently for the purpose of requirement of sanction  under   Section  197   of  the  Code  of  Criminal Procedure.  Such   differentiation  between  the  government servant employed  in the  departments directly  run  by  the government  and   the  officers   of   public   undertakings discharging the  functions intended  to be  performed by the government through  the contrivance  or veil  of a corporate structure will  frustrate the  very purpose  to protect  the officers  discharging  the  public  duties  intended  to  be performed by  the State.  Such officers of Corporate sector, therefore, must  get the protection by way of sanction under Section 197  of the  Code of  Criminal  Procedure,  and  the

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provisions of Sections 197 of the Code of Criminal Procedure should be  interpreted not  in a  restricted  manner  hereby limiting its  application only  to  the  government  servant setting in  the departments  directly run by the government. On the  country, Section  197 must be interpreted broadly so that the  officers of  the instrumentalities  of  the  State having  deep   and  pervasive   control  of  the  State  and discharging  the   duties  and   functions  intended  to  be performed by  the  government  through  the  contrivance  of corporate  structure,   get  the  desired  protection  under Section  197   of  the  Code  of  Criminal  procedure.  Such contentions have,  however, been  seriously disputed by Shri Sandal, learned  senior counsel  appearing for  the State of Bihar and  also Mr.  Jain, learned  senior counsel appearing for the  prosecuting agency.  It is  contended by  them that even  though   some  of  the  public  undertakings  and  the government companies  may be treated as instrumentalities or agencies of  the State in view of deep and pervasive control of the  government but  it cannot  be  held  that  they  are employed in  connection with the affairs of the Union of the State. A  department directly  run  by  the  government  has always been  placed on a different footing and the employees of the  public undertaking  and the  government company even when they  are instrumentalities  or agencies  of the  Stat, have never been treated at per with the government servants. In this  connection, reference has been made to the decision of this  Court in Dr. S. L. Agarwal vs. The General Manager, Hindustan Steel  Ltd. (1970  (1) SCC  177). The Constitution Bench of  this Court  in the  said decision  had to consider whether Dr.  Agarwal who  was appointed as Asstt. Surgeon in Hindustan Steel  Ltd. was  holder of  a civil post under the Union  and  whether  Article  311  of  the  Constitution  is applicable in  respect of such employee. it has been held in the said  decision that  the Hindustan  Steel Ltd.  is not a department of  the government  nor the  servants of  it  are holding posts  under the  State. The  said concern  has  its independent existence  and by law relating to corporation it is distinct  even from  its members. Therefore, employees of Hindustan Steel Ltd. do not answer the description of holder of civil  post under  the union  as stated in Article 311 of the Constitution.      Reliance has  also been  made to  the decision  of this Court in Praga Tools Corporation Vs. C.V. Imanaul and others ( 1969  (1) SCC  58). It  has been  held that although Praga Tools Corporation was a concern in which 88 % of the capital was subscribed  by the Union and the State Governments, even then it  could not  be regarded  as equivalent to government department because being registered under the Companies Act, it had  a separate  legal  existence  and  could  not  be  a government concern  run by  or under  the authority  of  the Union Government.  In Praga  Tool’s  case,  this  Court  has approved the  decision of  the Patna  High Court  in  Subodh Ranjan Ghosh Vs. Sindhri Fertilizers and Chemicals ltd. (AIR 1957 Patna 10). It was held by Patna High Court that Sindhri Fertilizers and  Chemicals ltd.  Was completely owned by the president of  India who  could also issue directions and the Directors were  to be  appointed by  the President of India. Even then,  in the  eye of  law, the  Company was a separate legal entity and had a separate legal existence.      Reference has  also been  made to  the decision of this Court in  State of  Bihar Vs.  Union of  India (1970 (1) SCC 67). It  has been  held that  Hindustan Steel Ltd. was not a State for the purpose of Article 131 of the Constitution.      Reliance has  also been  placed on the decision of this court. In  K. Jaymohan Vs. State of Kerala and another (1997

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(5) SCC  170) .  It has  been held in the said decision that there may  be deep  and pervasive  control of the government over the  appellant company  Hindustan Steel  Works Co. Ltd. and on  such account the said Company may be instrumentality or agency  of the  Central Government,  even then  the  said Company cannot  be held to be department or establishment of the government  of all cases. Another decision of this Court in S.S. Dhanu Vs. Municipal Corporation, Delhi (1981 (3) SCC 438) was  placed for the consideration of this Court. In the said case,  an I.A.S.  Officer was  sent on  deputation to a government owned  registered co-operative  society  and  was appointed as  General Manager  of Super  Bazar. The question arose whether  for an  offence alleged  against such officer the protection  under Section  197 of  the Code  of Criminal Procedure was available to such officer. It has been held in the said  case that while the said officer was on deputation and discharging  the functions  as General  manager of Super Bazar, he could not be held to have discharged the functions under the  state for which sanction under Section 197 of the Code of Criminal Procedure is called for.      It has  been contended that sanction contemplated under Section 197  of the  Code  of  Criminal  Procedure  must  be restricted only  in respect  of a Judge or a Magistrate or a Public Servant  who is  directly employed  by the government and not  by any instrumentality or agency of the government. When  the  Legislature  has  declined  to  render  the  same protection as available to public servant contemplated under Section 197  of  the  Code  of  Criminal  Procedure  to  the officers of  instrumentalities or  the agencies of the State by expressly  covering such officers, they cannot claim such protection  under  Section  197  of  the  Code  of  Criminal procedure and  any liberal interpretation of Section 197 for covering such officer will amount to legislation by Court.      After giving  our careful consideration to the question of law  raised in  these appeals and submissions made by the respective counsel  of the  parties,  it  appears  that  the justification for  the protection  under Section  197 of the Code of  Criminal Procedure  lies in  the public  policy  to ensure that  official acts  performed by a public servant do not lead  to needless  and vexatious  prosecution of    such public servant and it is desirable that it should be left to the government  to determine  the question  do expediency in prosecuting  a  public  servant.  The  41st  Report  of  Law Commission observed  that  under  Section  197  of  the  old Criminal Procedure Code, the protection given  to the public servant applied  only during  his tenure  in office and such protection did not apply after he had left the service. Such protection only  during the tenure in service was considered insufficient because  a  person  if  he  had  any  grievance against a  public servant  on account  of discharging the of public duties,  could lodge  a complaint  against  the  said public servant  after he  would cease to hold public office. Therefore, Section 197 Cr. P.C. was redrafted so as to given protection to  a public  servant even  when he had ceased to hold office  in respect of an alleged offence which had been committed when such officer was holding the public office.      ’Public Servant’  has not  been defined  in the Code of Criminal Procedure but Section 2 [Y] of the Code of Criminal Procedure provides  that the  words  used  in  the  Criminal procedure Code  but not  defined in  the Criminal  Procedure Code but defined in the Indian Penal Code shall be deemed to have the same meaning attributed to them in the Indian Penal Code. Section  21 of  the Indian  Penal Code defines ’public servant’ and therefore, the expression ’public servant’ will have the  same meaning  in the  Criminal procedure  Code. it

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will made  appropriate to  refer to  clauses  9  and  12  of Section 21 IPC.      Ninth - Every officer whose duty it      is  as   such  officer   to   take,      receive,   keep   or   expand   any      property a behalf of the Government      or to  make any  survey, assessment      or  contract   on  behalf   of  the      government  or   to   execute   any      revenue process  or to  investigate      or  to   report   on   any   matter      affecting the  pecuniary  interests      of  the   government  or  to  make,      authenticate or  keep any  document      relating to the pecuniary interests      of the government or to prevent the      infraction  of   any  law  for  the      protection   of    the    pecuniary      interests of the government.      Twelth - 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  91  of           1956.      Although the instrumentality or agency with a corporate veil, for all intents and purposes may be held to be a third arm of  the government  and such  instrumentality discharges the duties  and functions  which the  State intends to do as indicated   in    Ajay   Hasia’s      case   (supra),   such instrumentality or  agency is none the less juridical person having   a    separate   legal   entity.   Therefore,   such instrumentality must  be held  to have an independent status distinct  from   the  State  and  cannot  be  treated  as  a government department he all purposes. Therefore, even if an officer of such instrumentality or agency takes or receives, keeps or expends any property or executes any contract, such acts even  though in  ultimate analysis  may be held to have been done  in the  interest of the State, Such action cannot be construed, as of rule, an action of the government by its employees or by an authority empowered by the government. It may be  indicated here that it is not necessary that persons falling under  any of  the  descriptions  given  in  various clauses under  Section 21 of IPC need to be appointed by the government.  If   such  person   falls  under   any  of  the descriptions as  contained in  various clauses of Section 21 of the  Indian panal  code, such person must be held to be a public servant.  Explanation 1  of Section 21 indicates that persons falling  under any  of the  above  descriptions  are public servants  whether appointed  by the government or not Explanation 2  indicates that  wherever  the  words  ’public servant’ occur,  they shall  be understood  of every  person who is  in actual  possession of  the situation  of a public servant, whatever  legal defect there may be in his right to held that  situation. Sub  clause (b)  of clause  twelve  of section 21  expressly makes  the officers of local authority and  corporation   established  by   or  under   a  Central,

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Provincial or  State Act  or a  government owned  company as defined in  Section 617  of the  Companies Act  1956, public servants. But  protection under  section 197 Cr. P.C. is not available  to   a  public  servant  unless  other  condition indicated in that Section are fulfilled.      It is  be noted  that though through the contrivance or mechanism of  corporate structure,  some of the public under takings are  performing the  functions which are intended to be performed by the State, ex facie, such instrumentality or agency being  a juridical  person has  or independent status and the action taken by them, however important the same may be in  the interest  of the  State cannot  be held  to be an action taken  by or  on behalf  of the  governments as  such within the meaning of Section 97 Cr. P.C.      For the  purposes of  enforcing the fundamental rights, the public  undertakings  which,  on  account  of  deep  and pervasive control  can be  held to  be a  state  within  the meaning of  Article 12  has been  treated at  par  with  the government  department   out  in   all  its  facets,  public undertaking has  not been  equated with  the department  run directly by  the government. it was on this account that the Surgeon appointed in Hindustan Steel Works Ltd. has not been equated with  the government  servant  for  the  purpose  of applicability of  Article 311  of the Constitution. In Praga Tool’s case  (supra), even though Praga Tools was held to be an instrumentality  or agency  of the  State,  it  has  been indicated by  this Court  that Praga tolls Corporation had a separate legal existence and being a juridical person cannot be held  to be  a government  concern run  by or  under t he authority of  the government.  Similar view was taken by the Patna High  Court in  Sindhri Fertilizer’s  case (supra)  by indicating that  even though the said concern was completely owned by  the  President  of  India  who  could  also  issue directions and  the Directors  were to  be appointed  by the President of  India, in  the eye  of law,  the company was a separate legal  entity and  had a separate legal existences. Such decision  of Patna High Court has been approved by this Court. In  Dhonoa’s case  (supra), an  IAS officer  when  on deputation to a public undertaking having deep and pervasive control of  the State,  was not  held  to  be  a  government officer entitled to protection under Section 197 of the Code of Criminal  Procedure, even  though such  officer  did  not cease  to  be  a  government  servant  and  had  a  lien  in government service while on deputation. The protection which a government  department was  entitled to  has also not been given to  the Hindustan  Steel Works  Ltd. in  K. Jaymohan’s case (supra).      The importance  of the  public undertaking  should  not minimised.  The   government’s  concern   for   the   smooth functioning of  such instrumentality  or agency  cab be well appreciated but  on the plain language of Section 197 of the Code  of  Criminal  Procedure,  the  protection  by  way  of sanction is  not available  to the  officers of  the  public undertaking because  being a  juridical person  and distinct legal entity  such instrumentality  stands  on  a  different footing than the government departments.      It is  also to  be indicated  here that  in  1973,  the concept of  instrumentality or  agency of  state  was  quite distinct. The  interest of the State in such instrumentality or agency was well known. Even then, the legislature, in its wisdom, did  not think it necessary to expressly include the officers of  such instrumentality  or the government company for affording  protection by  way of  sanction under Section 197 Cr. P.C.      It will  be appropriate  to notice  that whenever there

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was felt  need to  include other  functionaries  within  the definition of  ’public servant’,  they have been declared to be ’public  servants’ under  several special and local acts. If the  legislature had  intended  to  include  officers  of instrumentality or  agency for  bringing such officers under the protective  umbrella of  Section 197  Cr. P. C. It would have done so expressly.      Therefore, it will not be just and proper to bring such persons  within  the  ambit  of  Section  197  by  liberally construing the  provisions of  Section 197. Such exercise of liberal construction will not be confined to the permissible limit of  interpretation of  a statute by a court of law but will amount to legislation by Court.      Therefore, in our considered opinion, the protection by way of  sanction under  Section 197  of the Code of Criminal procedure is  not applicable  to the  officers of Government Companies or  the public  undertakings even when such public undertakings are  ’State ’  within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the government.  The appeals are disposed of accordingly. It is  , however,  made clear  that we  have not  taken into consideration various  other grounds raised in these appeals challenging the  maintainability of the Criminal proceedings initiated against  the  concerned  officers  of  the  public undertakings or the government companies. It will be open to the concerned  accused to  challenge  the  validity  of  the Criminal cases  initiated against  them on other grounds, if such challenge  is available  in  law.  Such  questions,  if raised, in  these appeals  are kept open to be considered in accordance with law by the appropriate authority.