Protection from criminal prosecution is not available to those public servants who work in government companies or undertakings, the Supreme Court held on Monday.

Under section 197 of Code of Criminal Procedure (CrPC), prior sanction from a competent officer is needed to prosecute a government servant for alleged criminal act done in discharge of his official duty and “no court shall take cognizance of such offence except with the previous sanction“.

A bench of Justices Navin Sinha and A S Bopanna dismissed the appeal of Bharat Sanchar Nigam Ltd (BSNL) against the High Court’s order which had held that protection of sanction under CrPC was not available to the officers of public sector undertakings like BSNL even if they fall within the definition of ‘state’ under Article 12 of the Constitution.

BSNL and its officers, who were of the cadre of Indian Telecommunication Service and later shifted to the PSU, had challenged the order of a trial court initiating criminal prosecution against them in the case.

“At the very outset, we are of the opinion that the question for grant of sanction for prosecution under Section 197, CrPC on the ground of being a ‘public servant’ is not available to appellants nos. 3 and 4 (officers) on account of their ceasing to be employees of Indian Telecommunication Service after their absorption in the appellant Corporation on October 01, 2000, prior to the complaint.

“The fact that their past service may count for purposes of pension in case of removal or dismissal by Corporation or that administrative approval of the concerned ministry may be formally required before any punitive action will not confer on them the status of ‘public servant’ under CrPC,” the apex court held.

About the status of one of the government officers, who was on deputation with the BSNL, the apex court said the trial court would decide on the aspect of sanction during the trial.

A criminal case was lodged with the trial court by one Pramod V Sawant in 2003 alleging that the BSNL and its officers violated the Private Security Guards (Regulation of Employment and Welfare) Scheme, 1981 by engaging “unregistered ” security guards.

The trial court set the criminal law in motion dismissing the pleas of BSNL and its officers that as they were a public body and public servants respectively, the prior sanction was needed to prosecute them.