1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.744 OF 2019
(arising out of SLP(CRL.) No.11070 of 2018)
S.K. MIGLANI .... APPELLANT(S)
VERSUS
STATE NCT OF DELHI .... RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed against the
judgment of Delhi High Court dated 06.08.2018
dismissing the application filed by the appellant
under Section 482 Cr.P.C. praying for setting aside
the order dated 03.12.2014 and 13.12.2014 passed by
Chief Metropolitan Magistrate, Saket Court, New
Delhi and further to quash the F.I.R. No. 432 of
2000 under Sections 201, 409, 419, 420, 467, 468,
471, 120-B I.P.C. and the charge sheet.
2
2. The brief facts of the case necessary to be
noted are:-
2.1 The appellant has been working at the
relevant time as Manager in Bank of
Baroda, Faridabad Branch. Mr. Anant
Chatterjee, Director, Housing gave written
complaint dated 14.11.2000. On said basis
a FIR No. 432 of 2000 dated 15.11.2000 was
lodged at PS Kotla Mubarakpur for offence
under Section 201, 409, 419, 420, 467,
468, 471, 120-B IPC. It was the case of
the prosecution that Mehender Kumar
(Accountant), H.R. Sharma (Senior Account
Officer), S.C. Chugh (Asstt. Director
Housing), V.D. Nanda (Ht. FA (H) in
collusion with other DDA employees M.L.
Ahuja and Asha Gupta and property dealer
S.K. Khanna and S.K. Goel and SPA holder
of original allottee Praveen Kumar
illegally acted on fake request of
original allottee Mr. Gautam Dhar for cost
reduction of flat from 10.66 lakhs to 7.77
3
lakhs with approval of competent authority
and found that the original FDR and refund
application dated 07.07.1994 was
removed/misplaced from the DDA file. The
F.I.R., however, alleged that refund
cheque of Rs.2,22,263/- was withdrawn by
opening a saving bank account No.33604 in
Bank of Baroda, Faridabad with forged
signature of the allottee.
2.2 After investigation, a charge sheet was
submitted against the DDA officials,
property dealers and Special Power of
Attorney Praveen Kumar. A supplementary
charge sheet was also filed, in which the
appellant’s name was included. In the
supplementary charge sheet, it is
mentioned that the appellant opened a
fictitious savings bank account No.33604
in the name of Gautam Dhar in connivance
with Praveen Kumar, attorney of Shri
Gautam Dhar and Shri Rajinder s/o Shri
4
Braham Pal in order to encash the cheque
dated 07.01.2000 for Rs.2,22,263/-. The
supplementary charge sheet further stated
that prosecution sanction under Section
197 Cr.P.C. has been obtained against DDA
officials. Investigation agency also
obtained report dated 30.12.2002 from
Forensic Science Laboratory regarding
handwriting on various documents.
Handwriting opinion was also obtained with
regard to signatures on account opening
form of Gautam Dhar with the signature of
the appellant.
2.3 An application dated 09.05.2012 was filed
by the appellant before the ACMM, Saket
Court, New Delhi in FIR No.432 of 2000
stating that appellant is a public servant
employed with a nationalized bank as a
Manager and it is mandatory to seek
prosecution sanction against the appellant
in terms of Section 197 Cr.P.C. It was
5
stated that prosecution has not sought
prosecution sanction against the
appellant-accused, hence he may be
discharged on account of non-compliance of
Section 197 Cr.P.C. The Chief
Metropolitan Magistrate (South), Saket
Court passed an order on 03.12.2004
rejecting the application of the appellant
seeking discharge for want of sanction.
Case was fixed for framing of charge on
13.12.2014. On 13.12.2014, charge was
framed against the appellant under Section
465/120-B I.P.C. following charge was
framed against the appellant on
13.12.2014:-
“CHARGE
I, Vivek Kumar Gulia, Chief
Metropolitan, Magistrate (South),
Saket Courts Complex, New Delhi do
hereby charge you accused S.K.
Mighlani son of Sh. Lal Chand
Mighlani as under :
That you, in 1996 and
afterwards, at DDA, INA, Vikas
Sadan, New Delhi and other places,
6
alongwith co-accused Mahender
Kumar, H.R. Sharma, S.C. Chugh,
V.D. Nanda, Praveen Kumar, S.K.
Khanna, S.K. Goel. M.L. Ahuja and
Asha Gupta, agreed to commit
criminal breach of trust with DDA,
pursuant to which forged letters
for depositing challans,
application for change of address,
related affidavit, application for
reduction of cost bearing forged
signature of allottee Sh. Gautam
Dhar and forged seal of Notary were
entertained and further the cheque
issued in the name of allottee was
encashed through forged account
opened by you and thereby committed
an offence punishable U/s. 120-B
IPC and within the cognizance of
this Court;
Secondly, that you, at Bank of
Baroda, Faridabad Branch, Haryana,
forged the account opening form in
the name of allottee Sh. Gautam
Dhar (account no. 33604) with
intention to get the refund cheques
encashed and thereby committed an
offence punishable U/s. 465 IPC and
within the cognizance of this
Court.
I hereby direct you to be tried
by this court for the aforesaid
charges.
CMM(South) Saket Courts
New Delhi/13.12.2014
The charge is read over and
explained to the accused in
vernacular language and he is
questioned as under:
7
Ques.: Do you plead guilty or claim
trial ?
Ans. I plead not guilty and claim
trial.”
2.4 An application under Section 482 Cr.P.C.
was filed by the appellant before the High
court of Delhi, where following prayers
have been made:-
i. Set aside the order dated
03.12.2014 passed by Sh. V.K.
Gulia, Ld. CMM, Saket Courts,
New Delhi dismissing the
discharge application of the
petitioner;
ii. Set aside the order dated
13.12.2014 passed by Sh. V.K.
Gulia, Ld. CMM, Saket Courts,
New Delhi, thereby framing
charges against the petitioner
by taking cognizance without
obtaining sanction for
prosecution as required U/s.
197 Cr.P.C. in the interest of
justice;
iii. Quash the FIR No.432/2000, U/s.
406/201/419/420/467/468/471/
120B IPC registered at PS:
Kotla Mubarakpur, Delhi,
Charge-sheet U/s. 406/201/419/
420/467/468/471/120B IPC and
further proceeding emanating
therefrom qua the petitioner;
8
iv. Pass any such or further
order(s) as this Hon’ble Court
may deem fit and proper in the
interest of justice.”
2.5 The High Court vide the impugned judgment
dismissed the application filed under
Section 482 Cr.P.C. upholding the order of
CMM dated 13.12.2014. Aggrieved against
the said judgment, this appeal has been
filed.
3. Learned counsel for the appellant in support
of this appeal submits that the appellant, who was
working as a Branch Manager in Bank of Baroda had
permitted opening of a savings account No.33604 in
discharge of his official duty. The appellant
being a public servant, sanction ought to have been
obtained under Section 197 Cr.P.C. for prosecuting
the appellant. It is submitted that although
sanction has been obtained with regard to DDA
officials, but no sanction has been obtained for
the appellant. He submits that CMM committed error
in rejecting the application of the appellant for
9
discharge due to want of sanction. It is further
submitted that the appellant’s name came only in
the supplementary charge sheet and allegations are
only with regard to opening of a savings bank
account. Investigation Agency has obtained opinion
of handwriting experts with respect to signatures
of Gautam Dhar on the account opening form and the
specimen signatures of the appellant. It is
submitted that in the report dated 30.12.2002,
which was received from Forensic Science
Laboratory, Govt. of NCT of Delhi with regard to
signatures of Gautam Dhar on the account opening
form and with the specimen signatures of the
appellant, it has been mentioned in the report that
it has not been possible to express a definite
opinion on rest of the items on the basis of
materials at hand. It is submitted that although
the said report was very much with the I.O.,
another report was called for from the Chief
Forensic Scientist & Director (FS) to seek further
opinion from GEQD, Shimla. It is submitted that
the report has been submitted by letter dated
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29.10.2003 opining that the signatures of Gautam
Dhar in the account opening form tallies with the
specimen signatures of the appellant. He submits
that the subsequent report, which was sent by
letter dated 29.10.2003 could not have been relied,
since in the signature of Gautam Dhar in the
account opening form and signatures of the
appellant there is no similarity. It is further
submitted that in any view of the matter, opinion
of a handwriting expert is only an opinion
evidence, which is a weak nature of evidence and
could not have been relied in rejecting the claim
of the appellant that he has opened the account in
exercise of his official duty. It is further
submitted that the CMM in his order dated
03.12.2014 has held that forgery has been committed
by the appellant in sanctioning the account opening
form. It is submitted that appellant has been held
guilty before even trial has proceeded.
4. Learned counsel for the respondent refuting
the submission of the appellant contends that
11
appellant cannot claim benefit of Section 197
Cr.P.C., since the allegations against him are
allegations of forgery, which allegations cannot be
held to be performed in exercise of official duty.
It has been submitted that this Court has held in
Parkash Singh Badal and Another Vs. State of Punjab
and Others, (2007) 1 SCC 1 that the offence of
cheating under Section 420 or for that matter
offences relatable to Sections 467, 468, 471 and
120B can by no stretch of imagination by their very
nature be regarded as having been committed by any
public servant while acting or purporting to act in
discharge of official duty.
5. Learned counsel for the State submits that the
application of the appellant has been rightly
rejected by the CMM.
6. We have considered the submissions of the
learned counsel for the parties and have perused
the records.
7. The CMM in his order dated 03.12.2014 while
rejecting the application of the appellant for
12
discharge for want of sanction under Section 197
Cr.P.C. has relied on the judgment of this Court in
Parkash Singh Badal (supra). With regard to the
appellant, following order was passed by CMM:-
“Accused S.K. Mighlani pressed his
application for discharge for want of
sanction u/s 197 Cr.P.C. It was argued
that he had opened account as per the
procedure prescribed and since this act was
done in discharge of his duties, the
cognizance should not have been taken
against him in absence of section 197
Cr.P.C. From the FSL report, it is clear
that accused S.K. Mighlani forged the
signatures of Sh. Gautam Dhar on account
opening form and moreover, the introducer
Rajender Kr. is absconding. In view of
this Court, an act of forgery done by
public servant cannot be considered an
act done in discharge of his official
duties. In this regard, reliance can be
placed on the decision given by the Apex
Court in the case of Parkash Singh Badal &
Another vs. State of Punjab & Others
{(2007) 1 SCC 1}, wherein it was laid
down that:
"……..The offence of cheating under
Section 420 or for that matter
offences relatable to Sections 467,
468, 471 and 120B can by no stretch
of imagination by their very nature
be regarded as having been
committed by any public servant
while acting or purporting to act
13
in discharge of official duty. In
such cases, official status only
provides an opportunity for
commission of the offence”.
Otherwise also, when accused pleads
sanction in bar, the onus is on him to
prove its necessity, but the accused has
not satisfied this Court that Section 197
Cr.P.C applies in this case because at
the relevant time he was public servant
not removable from his office saved by or
with the sanction of the Government.”
8. One of the reasons given by CMM is that
accused has not satisfied the Court that Section
197 Cr.P.C. applies in this case because at the
relevant time, he was public servant not removable
from his office saved by or with the sanction of
the Government. Section 197 Cr.P.C. provides:-
“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 Court shall take
cognizance of such offence except with the
previous sanction [save as otherwise
provided in the Lokpal and Lokayuktas Act,
2013]-
(a) in the case of a person who is
employed or, as the case may be,
14
was at the time of commission of
the alleged offence employed, in
connection with the affairs of the
Union, of the Central Government;
(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 affairs 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
356 of the Constitution was in
force in a State, clause (b) will
apply as if for the expression
“State Government" occurring
therein, the expression “Central
Government" were substituted.
Explanation — For the removal of
doubts it is hereby declared that
no sanction shall be required in
case of a public servant accused of
any offence alleged to have been
committed under section 166A,
section 166B, section 354, section
354A, section 354B, section 354C,
section 354D, section 370, section
375, section 376, section 376A,
section 376AB, section 376C,
section 376D, section 376DA,
section 376DB or section 509 of the
Indian Penal Code (45 of 1860).”
XXXXXXXXXXXXXXXXXXX”
9. The appellant being Manager in nationalized
15
bank whether can claim that before prosecuting him
sanction is required under Section 197. The CMM
having come to opinion that appellant having not
satisfied that he was public servant not removable
from his office saved by or with the sanction of
the Government, Section 197 Cr.P.C. was not
attracted with regard to appellant. After coming
to the above conclusions, it was not necessary for
the CMM to enter into the question as to whether
acts alleged against the appellant were discharged
in performance of official duty.
10. The question as to whether a manager of
nationalized bank can claim benefit of Section 197
Cr.P.C. is not res integra. This Court in K.CH.
Prasad Vs. Smt. J. Vanalatha Devi and Others,
(1987) 2 SCC 52 had occasion to consider the same
very question in reference to one, who claimed to
be a public servant working in a nationalized bank.
The application filed by appellant in above case
questioning the maintainability of the prosecution
for want of sanction under Section 197 Cr.P.C. was
16
rejected by Metropolitan Magistrate and revision to
the High Court also met the same fate. This Court
while dismissing the appeal held that even though a
person working in a nationalized bank is a public
servant still provisions of Section 197 are not
attracted at all. In paragraph No.6 of the
judgment, following has been held:-
“6. It is very clear from this provision
that this section is attracted only in
cases where the public servant is such who
is not removable from his office save by
or with the sanction of the Government. It
is not disputed that the appellant is not
holding a post where he could not be
removed from service except by or with the
sanction of the government. In this view
of the matter even if it is held that
appellant is a public servant still
provisions of Section 197 are not
attracted at all.”
11. The High Court in its impugned judgment has
not adverted to the above aspect and has only
confined to the discussion as to whether acts
alleged of the appellant were in discharge of
official duty. High Court also had relied on
judgment of this Court in Parkash Singh Badal
(supra). We having come to the conclusion that
17
appellant being not a public servant removable from
his office saved by or with the sanction of the
Government, sanction under Section 197 Cr.P.C. was
not applicable. The appellant cannot claim
protection under Section 197 Cr.P.C. We are of the
view that examination of further question as to
whether appellant was acting or purporting to act
in the discharge of his official duty was not
required to be gone into, when he did not fulfill
conditions for applicability of Section 197(1)
Cr.P.C.
12. We further notice that CMM in his order dated
03.12.2014 as extracted above made following
observations:-
“………………From the FSL report, it is clear
that accused S.K. Mighlani forged the
signatures of Sh. Gautam Dhar on account
opening form and moreover, the introducer
Rajender Kr. is absconding. In view of
this Court, an act of forgery done by
public servant cannot be considered an
act done in discharge of his official
duties………………………………”
13. At the stage, when Court is considering the
question regarding applicability of Section 197
18
Cr.P.C., it was not necessary for the CMM to make
observation that appellant has done an act of
forgery. The FSL report was one of the evidences
collected by I.O. Its evidentiary value was still
to be gone into at the time of trial in the light
of the evidences, which may come before the trial
court.
14. Learned counsel for the appellant has relied
on judgment of this Court in S.P.S. Rathore Vs.
Central Bureau of Investigation and Another, (2017)
5 SCC 817, where this Court had held that although
the opinion of a handwriting expert is also
relevant, but that too is not conclusive. This
Court further held that expert evidence as to
handwriting is only opinion evidence, which need to
be corroborated either by clear, direct or
circumstantial evidence. In Paragraph No. 47,
following has been laid down:-
“47. With regard to the contention of the
learned Senior Counsel for the appellantaccused that the signatures of Ms Ruchika
on the memorandum were forged though she
signed the same in front of Shri Anand
19
Prakash, Shri S.C. Girhotra, Ms Aradhana
and Mrs Madhu Prakash and they have
admitted the same, we are of the opinion
that expert evidence as to handwriting is
only opinion evidence and it can never be
conclusive. Acting on the evidence of any
expert, it is usually to see if that
evidence is corroborated either by clear,
direct or circumstantial evidence. The
sole evidence of a handwriting expert is
not normally sufficient for recording a
definite finding about the writing being
of a certain person or not. A court is
competent to compare the disputed writing
of a person with others which are admitted
or proved to be his writings. It may not
be safe for a court to record a finding
about a person’s writing in a certain
document merely on the basis of expert
comparison, but a court can itself compare
the writings in order to appreciate
properly the other evidence produced
before it in that regard. The opinion of a
handwriting expert is also relevant in
view of Section 45 of the Evidence Act,
but that too is not conclusive. It has
also been held by this Court in a catena
of cases that the sole evidence of a
handwriting expert is not normally
sufficient for recording a definite
finding about the writing being of a
certain person or not. It follows that it
is not essential that the handwriting
expert must be examined in a case to prove
or disprove the disputed writing. It is
opinion evidence and it can rarely, if
ever, take the place of substantive
evidence. Before acting on such evidence,
it is usual to see if it is corroborated
either by clear, direct evidence or by
circumstantial evidence.”
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15. The observation made by CMM as extracted
above, by giving opinion using the expression that
appellant has committed forgery ought to have been
avoided. The Magistrate, at any stage prior to
final trial, is to avoid any conclusive opinion
regarding any evidence collected during
investigation. It is true that evidence collected
in the investigation can be looked into to form an
opinion as to whether prima facie charge is made
out against an accused and what is the nature of
offence alleged against him.
16. Insofar as the judgment of this Court in
Parkash Singh Badal (supra) relied on by the
counsel for the respondent and other judgments,
i.e., Inspector of Police and Another Vs.
Battenapatla Venkata Ratnam and Another, (20150 13
SCC 87 and Devinder Singh and Others Vs. State of
Punjab, (2016) 12 SCC 87 reiterating the
proposition, which was laid down in Parkash Singh
Badal (supra), there cannot be any quarrel to the
proposition. In Parkash Singh Badal (supra), this
21
Court laid down following in paragraph No.15;-
“15. It is their stand that where the
public servant has ceased to be a public
servant in one capacity by ceasing to hold
office which is alleged to have been
misused, the fortuitous circumstance of
the accused being in another capacity
holding an entirely different public
office is irrelevant. It was categorically
held in R.S. Nayak case, (1984) 2 SCC 183,
in para 13 that “on analysis of the policy
of the whole section the authority
competent to remove the public servant
from the office alleged to have misused is
alone the competent sanctioning
authority”.”
17. Other judgments relied on by the counsel for
the respondent lays down the same proposition.
Learned counsel for the appellant has also placed
reliance on N.K. Ganguly Vs. Central Bureau of
Investigation, (2016) 2 SCC 143, where this Court
in paragraph No.35 laid down following:-
“35. From a perusal of the case law
referred to supra, it becomes clear that
for the purpose of obtaining previous
sanction from the appropriate Government
under Section 197 Cr.P.C., it is
imperative that the alleged offence is
committed in discharge of official duty by
the accused. It is also important for the
Court to examine the allegations contained
in the final report against the
appellants, to decide whether previous
22
sanction is required to be obtained by the
respondent from the appropriate Government
before taking cognizance of the alleged
offence by the learned Special Judge
against the accused. In the instant case,
since the allegations made against the
appellants in the final report filed by
the respondent that the alleged offences
were committed by them in discharge of
their official duty, therefore, it was
essential for the learned Special Judge to
correctly decide as to whether the
previous sanction from the Central
Government under Section 197 Cr.P.C. was
required to be taken by the respondent,
before taking cognizance and passing an
order issuing summons to the appellants
for their presence.”
18. No exception can be taken to the proposition
as laid down in the above case. We having taken
the view that appellant being not removable by or
saved with the sanction of the Government was not
covered by Section 197 Cr.P.C. There was no
necessity to consider any further as to whether
acts of the appellant complained of were in
discharge of official duty or not.
19. We, thus, upheld the order of the CMM dated
03.12.2014 rejecting the application under Section
23
197 Cr.P.C. on the ground that appellant was not
removable by his office saved by or with the
sanction of the Government. We, however, delete
the following observations from the order dated
03.12.2014:-
“…………………………From the FSL report, it is
clear that accused S.K. Mighlani forged
the signatures of Sh. Gautam Dhar on
account opening form and moreover, the
introducer Rajender Kr. is absconding. In
view of this Court, an act of forgery
done by public servant cannot be
considered an act done in discharge of
his official duties……………………”
20. Although, we uphold the order of the High
Court as well as the order of CMM, but the
observations made by CMM in its order, as noted
above, are deleted. The appeal is partly allowed to
the extent indicated above.
...............................J.
( ASHOK BHUSHAN )
...............................J.
( K.M.JOSEPH)
NEW DELHI,
APRIL 30, 2019.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.744 OF 2019
(arising out of SLP(CRL.) No.11070 of 2018)
S.K. MIGLANI .... APPELLANT(S)
VERSUS
STATE NCT OF DELHI .... RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed against the
judgment of Delhi High Court dated 06.08.2018
dismissing the application filed by the appellant
under Section 482 Cr.P.C. praying for setting aside
the order dated 03.12.2014 and 13.12.2014 passed by
Chief Metropolitan Magistrate, Saket Court, New
Delhi and further to quash the F.I.R. No. 432 of
2000 under Sections 201, 409, 419, 420, 467, 468,
471, 120-B I.P.C. and the charge sheet.
2
2. The brief facts of the case necessary to be
noted are:-
2.1 The appellant has been working at the
relevant time as Manager in Bank of
Baroda, Faridabad Branch. Mr. Anant
Chatterjee, Director, Housing gave written
complaint dated 14.11.2000. On said basis
a FIR No. 432 of 2000 dated 15.11.2000 was
lodged at PS Kotla Mubarakpur for offence
under Section 201, 409, 419, 420, 467,
468, 471, 120-B IPC. It was the case of
the prosecution that Mehender Kumar
(Accountant), H.R. Sharma (Senior Account
Officer), S.C. Chugh (Asstt. Director
Housing), V.D. Nanda (Ht. FA (H) in
collusion with other DDA employees M.L.
Ahuja and Asha Gupta and property dealer
S.K. Khanna and S.K. Goel and SPA holder
of original allottee Praveen Kumar
illegally acted on fake request of
original allottee Mr. Gautam Dhar for cost
reduction of flat from 10.66 lakhs to 7.77
3
lakhs with approval of competent authority
and found that the original FDR and refund
application dated 07.07.1994 was
removed/misplaced from the DDA file. The
F.I.R., however, alleged that refund
cheque of Rs.2,22,263/- was withdrawn by
opening a saving bank account No.33604 in
Bank of Baroda, Faridabad with forged
signature of the allottee.
2.2 After investigation, a charge sheet was
submitted against the DDA officials,
property dealers and Special Power of
Attorney Praveen Kumar. A supplementary
charge sheet was also filed, in which the
appellant’s name was included. In the
supplementary charge sheet, it is
mentioned that the appellant opened a
fictitious savings bank account No.33604
in the name of Gautam Dhar in connivance
with Praveen Kumar, attorney of Shri
Gautam Dhar and Shri Rajinder s/o Shri
4
Braham Pal in order to encash the cheque
dated 07.01.2000 for Rs.2,22,263/-. The
supplementary charge sheet further stated
that prosecution sanction under Section
197 Cr.P.C. has been obtained against DDA
officials. Investigation agency also
obtained report dated 30.12.2002 from
Forensic Science Laboratory regarding
handwriting on various documents.
Handwriting opinion was also obtained with
regard to signatures on account opening
form of Gautam Dhar with the signature of
the appellant.
2.3 An application dated 09.05.2012 was filed
by the appellant before the ACMM, Saket
Court, New Delhi in FIR No.432 of 2000
stating that appellant is a public servant
employed with a nationalized bank as a
Manager and it is mandatory to seek
prosecution sanction against the appellant
in terms of Section 197 Cr.P.C. It was
5
stated that prosecution has not sought
prosecution sanction against the
appellant-accused, hence he may be
discharged on account of non-compliance of
Section 197 Cr.P.C. The Chief
Metropolitan Magistrate (South), Saket
Court passed an order on 03.12.2004
rejecting the application of the appellant
seeking discharge for want of sanction.
Case was fixed for framing of charge on
13.12.2014. On 13.12.2014, charge was
framed against the appellant under Section
465/120-B I.P.C. following charge was
framed against the appellant on
13.12.2014:-
“CHARGE
I, Vivek Kumar Gulia, Chief
Metropolitan, Magistrate (South),
Saket Courts Complex, New Delhi do
hereby charge you accused S.K.
Mighlani son of Sh. Lal Chand
Mighlani as under :
That you, in 1996 and
afterwards, at DDA, INA, Vikas
Sadan, New Delhi and other places,
6
alongwith co-accused Mahender
Kumar, H.R. Sharma, S.C. Chugh,
V.D. Nanda, Praveen Kumar, S.K.
Khanna, S.K. Goel. M.L. Ahuja and
Asha Gupta, agreed to commit
criminal breach of trust with DDA,
pursuant to which forged letters
for depositing challans,
application for change of address,
related affidavit, application for
reduction of cost bearing forged
signature of allottee Sh. Gautam
Dhar and forged seal of Notary were
entertained and further the cheque
issued in the name of allottee was
encashed through forged account
opened by you and thereby committed
an offence punishable U/s. 120-B
IPC and within the cognizance of
this Court;
Secondly, that you, at Bank of
Baroda, Faridabad Branch, Haryana,
forged the account opening form in
the name of allottee Sh. Gautam
Dhar (account no. 33604) with
intention to get the refund cheques
encashed and thereby committed an
offence punishable U/s. 465 IPC and
within the cognizance of this
Court.
I hereby direct you to be tried
by this court for the aforesaid
charges.
CMM(South) Saket Courts
New Delhi/13.12.2014
The charge is read over and
explained to the accused in
vernacular language and he is
questioned as under:
7
Ques.: Do you plead guilty or claim
trial ?
Ans. I plead not guilty and claim
trial.”
2.4 An application under Section 482 Cr.P.C.
was filed by the appellant before the High
court of Delhi, where following prayers
have been made:-
i. Set aside the order dated
03.12.2014 passed by Sh. V.K.
Gulia, Ld. CMM, Saket Courts,
New Delhi dismissing the
discharge application of the
petitioner;
ii. Set aside the order dated
13.12.2014 passed by Sh. V.K.
Gulia, Ld. CMM, Saket Courts,
New Delhi, thereby framing
charges against the petitioner
by taking cognizance without
obtaining sanction for
prosecution as required U/s.
197 Cr.P.C. in the interest of
justice;
iii. Quash the FIR No.432/2000, U/s.
406/201/419/420/467/468/471/
120B IPC registered at PS:
Kotla Mubarakpur, Delhi,
Charge-sheet U/s. 406/201/419/
420/467/468/471/120B IPC and
further proceeding emanating
therefrom qua the petitioner;
8
iv. Pass any such or further
order(s) as this Hon’ble Court
may deem fit and proper in the
interest of justice.”
2.5 The High Court vide the impugned judgment
dismissed the application filed under
Section 482 Cr.P.C. upholding the order of
CMM dated 13.12.2014. Aggrieved against
the said judgment, this appeal has been
filed.
3. Learned counsel for the appellant in support
of this appeal submits that the appellant, who was
working as a Branch Manager in Bank of Baroda had
permitted opening of a savings account No.33604 in
discharge of his official duty. The appellant
being a public servant, sanction ought to have been
obtained under Section 197 Cr.P.C. for prosecuting
the appellant. It is submitted that although
sanction has been obtained with regard to DDA
officials, but no sanction has been obtained for
the appellant. He submits that CMM committed error
in rejecting the application of the appellant for
9
discharge due to want of sanction. It is further
submitted that the appellant’s name came only in
the supplementary charge sheet and allegations are
only with regard to opening of a savings bank
account. Investigation Agency has obtained opinion
of handwriting experts with respect to signatures
of Gautam Dhar on the account opening form and the
specimen signatures of the appellant. It is
submitted that in the report dated 30.12.2002,
which was received from Forensic Science
Laboratory, Govt. of NCT of Delhi with regard to
signatures of Gautam Dhar on the account opening
form and with the specimen signatures of the
appellant, it has been mentioned in the report that
it has not been possible to express a definite
opinion on rest of the items on the basis of
materials at hand. It is submitted that although
the said report was very much with the I.O.,
another report was called for from the Chief
Forensic Scientist & Director (FS) to seek further
opinion from GEQD, Shimla. It is submitted that
the report has been submitted by letter dated
10
29.10.2003 opining that the signatures of Gautam
Dhar in the account opening form tallies with the
specimen signatures of the appellant. He submits
that the subsequent report, which was sent by
letter dated 29.10.2003 could not have been relied,
since in the signature of Gautam Dhar in the
account opening form and signatures of the
appellant there is no similarity. It is further
submitted that in any view of the matter, opinion
of a handwriting expert is only an opinion
evidence, which is a weak nature of evidence and
could not have been relied in rejecting the claim
of the appellant that he has opened the account in
exercise of his official duty. It is further
submitted that the CMM in his order dated
03.12.2014 has held that forgery has been committed
by the appellant in sanctioning the account opening
form. It is submitted that appellant has been held
guilty before even trial has proceeded.
4. Learned counsel for the respondent refuting
the submission of the appellant contends that
11
appellant cannot claim benefit of Section 197
Cr.P.C., since the allegations against him are
allegations of forgery, which allegations cannot be
held to be performed in exercise of official duty.
It has been submitted that this Court has held in
Parkash Singh Badal and Another Vs. State of Punjab
and Others, (2007) 1 SCC 1 that the offence of
cheating under Section 420 or for that matter
offences relatable to Sections 467, 468, 471 and
120B can by no stretch of imagination by their very
nature be regarded as having been committed by any
public servant while acting or purporting to act in
discharge of official duty.
5. Learned counsel for the State submits that the
application of the appellant has been rightly
rejected by the CMM.
6. We have considered the submissions of the
learned counsel for the parties and have perused
the records.
7. The CMM in his order dated 03.12.2014 while
rejecting the application of the appellant for
12
discharge for want of sanction under Section 197
Cr.P.C. has relied on the judgment of this Court in
Parkash Singh Badal (supra). With regard to the
appellant, following order was passed by CMM:-
“Accused S.K. Mighlani pressed his
application for discharge for want of
sanction u/s 197 Cr.P.C. It was argued
that he had opened account as per the
procedure prescribed and since this act was
done in discharge of his duties, the
cognizance should not have been taken
against him in absence of section 197
Cr.P.C. From the FSL report, it is clear
that accused S.K. Mighlani forged the
signatures of Sh. Gautam Dhar on account
opening form and moreover, the introducer
Rajender Kr. is absconding. In view of
this Court, an act of forgery done by
public servant cannot be considered an
act done in discharge of his official
duties. In this regard, reliance can be
placed on the decision given by the Apex
Court in the case of Parkash Singh Badal &
Another vs. State of Punjab & Others
{(2007) 1 SCC 1}, wherein it was laid
down that:
"……..The offence of cheating under
Section 420 or for that matter
offences relatable to Sections 467,
468, 471 and 120B can by no stretch
of imagination by their very nature
be regarded as having been
committed by any public servant
while acting or purporting to act
13
in discharge of official duty. In
such cases, official status only
provides an opportunity for
commission of the offence”.
Otherwise also, when accused pleads
sanction in bar, the onus is on him to
prove its necessity, but the accused has
not satisfied this Court that Section 197
Cr.P.C applies in this case because at
the relevant time he was public servant
not removable from his office saved by or
with the sanction of the Government.”
8. One of the reasons given by CMM is that
accused has not satisfied the Court that Section
197 Cr.P.C. applies in this case because at the
relevant time, he was public servant not removable
from his office saved by or with the sanction of
the Government. Section 197 Cr.P.C. provides:-
“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 Court shall take
cognizance of such offence except with the
previous sanction [save as otherwise
provided in the Lokpal and Lokayuktas Act,
2013]-
(a) in the case of a person who is
employed or, as the case may be,
14
was at the time of commission of
the alleged offence employed, in
connection with the affairs of the
Union, of the Central Government;
(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 affairs 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
356 of the Constitution was in
force in a State, clause (b) will
apply as if for the expression
“State Government" occurring
therein, the expression “Central
Government" were substituted.
Explanation — For the removal of
doubts it is hereby declared that
no sanction shall be required in
case of a public servant accused of
any offence alleged to have been
committed under section 166A,
section 166B, section 354, section
354A, section 354B, section 354C,
section 354D, section 370, section
375, section 376, section 376A,
section 376AB, section 376C,
section 376D, section 376DA,
section 376DB or section 509 of the
Indian Penal Code (45 of 1860).”
XXXXXXXXXXXXXXXXXXX”
9. The appellant being Manager in nationalized
15
bank whether can claim that before prosecuting him
sanction is required under Section 197. The CMM
having come to opinion that appellant having not
satisfied that he was public servant not removable
from his office saved by or with the sanction of
the Government, Section 197 Cr.P.C. was not
attracted with regard to appellant. After coming
to the above conclusions, it was not necessary for
the CMM to enter into the question as to whether
acts alleged against the appellant were discharged
in performance of official duty.
10. The question as to whether a manager of
nationalized bank can claim benefit of Section 197
Cr.P.C. is not res integra. This Court in K.CH.
Prasad Vs. Smt. J. Vanalatha Devi and Others,
(1987) 2 SCC 52 had occasion to consider the same
very question in reference to one, who claimed to
be a public servant working in a nationalized bank.
The application filed by appellant in above case
questioning the maintainability of the prosecution
for want of sanction under Section 197 Cr.P.C. was
16
rejected by Metropolitan Magistrate and revision to
the High Court also met the same fate. This Court
while dismissing the appeal held that even though a
person working in a nationalized bank is a public
servant still provisions of Section 197 are not
attracted at all. In paragraph No.6 of the
judgment, following has been held:-
“6. It is very clear from this provision
that this section is attracted only in
cases where the public servant is such who
is not removable from his office save by
or with the sanction of the Government. It
is not disputed that the appellant is not
holding a post where he could not be
removed from service except by or with the
sanction of the government. In this view
of the matter even if it is held that
appellant is a public servant still
provisions of Section 197 are not
attracted at all.”
11. The High Court in its impugned judgment has
not adverted to the above aspect and has only
confined to the discussion as to whether acts
alleged of the appellant were in discharge of
official duty. High Court also had relied on
judgment of this Court in Parkash Singh Badal
(supra). We having come to the conclusion that
17
appellant being not a public servant removable from
his office saved by or with the sanction of the
Government, sanction under Section 197 Cr.P.C. was
not applicable. The appellant cannot claim
protection under Section 197 Cr.P.C. We are of the
view that examination of further question as to
whether appellant was acting or purporting to act
in the discharge of his official duty was not
required to be gone into, when he did not fulfill
conditions for applicability of Section 197(1)
Cr.P.C.
12. We further notice that CMM in his order dated
03.12.2014 as extracted above made following
observations:-
“………………From the FSL report, it is clear
that accused S.K. Mighlani forged the
signatures of Sh. Gautam Dhar on account
opening form and moreover, the introducer
Rajender Kr. is absconding. In view of
this Court, an act of forgery done by
public servant cannot be considered an
act done in discharge of his official
duties………………………………”
13. At the stage, when Court is considering the
question regarding applicability of Section 197
18
Cr.P.C., it was not necessary for the CMM to make
observation that appellant has done an act of
forgery. The FSL report was one of the evidences
collected by I.O. Its evidentiary value was still
to be gone into at the time of trial in the light
of the evidences, which may come before the trial
court.
14. Learned counsel for the appellant has relied
on judgment of this Court in S.P.S. Rathore Vs.
Central Bureau of Investigation and Another, (2017)
5 SCC 817, where this Court had held that although
the opinion of a handwriting expert is also
relevant, but that too is not conclusive. This
Court further held that expert evidence as to
handwriting is only opinion evidence, which need to
be corroborated either by clear, direct or
circumstantial evidence. In Paragraph No. 47,
following has been laid down:-
“47. With regard to the contention of the
learned Senior Counsel for the appellantaccused that the signatures of Ms Ruchika
on the memorandum were forged though she
signed the same in front of Shri Anand
19
Prakash, Shri S.C. Girhotra, Ms Aradhana
and Mrs Madhu Prakash and they have
admitted the same, we are of the opinion
that expert evidence as to handwriting is
only opinion evidence and it can never be
conclusive. Acting on the evidence of any
expert, it is usually to see if that
evidence is corroborated either by clear,
direct or circumstantial evidence. The
sole evidence of a handwriting expert is
not normally sufficient for recording a
definite finding about the writing being
of a certain person or not. A court is
competent to compare the disputed writing
of a person with others which are admitted
or proved to be his writings. It may not
be safe for a court to record a finding
about a person’s writing in a certain
document merely on the basis of expert
comparison, but a court can itself compare
the writings in order to appreciate
properly the other evidence produced
before it in that regard. The opinion of a
handwriting expert is also relevant in
view of Section 45 of the Evidence Act,
but that too is not conclusive. It has
also been held by this Court in a catena
of cases that the sole evidence of a
handwriting expert is not normally
sufficient for recording a definite
finding about the writing being of a
certain person or not. It follows that it
is not essential that the handwriting
expert must be examined in a case to prove
or disprove the disputed writing. It is
opinion evidence and it can rarely, if
ever, take the place of substantive
evidence. Before acting on such evidence,
it is usual to see if it is corroborated
either by clear, direct evidence or by
circumstantial evidence.”
20
15. The observation made by CMM as extracted
above, by giving opinion using the expression that
appellant has committed forgery ought to have been
avoided. The Magistrate, at any stage prior to
final trial, is to avoid any conclusive opinion
regarding any evidence collected during
investigation. It is true that evidence collected
in the investigation can be looked into to form an
opinion as to whether prima facie charge is made
out against an accused and what is the nature of
offence alleged against him.
16. Insofar as the judgment of this Court in
Parkash Singh Badal (supra) relied on by the
counsel for the respondent and other judgments,
i.e., Inspector of Police and Another Vs.
Battenapatla Venkata Ratnam and Another, (20150 13
SCC 87 and Devinder Singh and Others Vs. State of
Punjab, (2016) 12 SCC 87 reiterating the
proposition, which was laid down in Parkash Singh
Badal (supra), there cannot be any quarrel to the
proposition. In Parkash Singh Badal (supra), this
21
Court laid down following in paragraph No.15;-
“15. It is their stand that where the
public servant has ceased to be a public
servant in one capacity by ceasing to hold
office which is alleged to have been
misused, the fortuitous circumstance of
the accused being in another capacity
holding an entirely different public
office is irrelevant. It was categorically
held in R.S. Nayak case, (1984) 2 SCC 183,
in para 13 that “on analysis of the policy
of the whole section the authority
competent to remove the public servant
from the office alleged to have misused is
alone the competent sanctioning
authority”.”
17. Other judgments relied on by the counsel for
the respondent lays down the same proposition.
Learned counsel for the appellant has also placed
reliance on N.K. Ganguly Vs. Central Bureau of
Investigation, (2016) 2 SCC 143, where this Court
in paragraph No.35 laid down following:-
“35. From a perusal of the case law
referred to supra, it becomes clear that
for the purpose of obtaining previous
sanction from the appropriate Government
under Section 197 Cr.P.C., it is
imperative that the alleged offence is
committed in discharge of official duty by
the accused. It is also important for the
Court to examine the allegations contained
in the final report against the
appellants, to decide whether previous
22
sanction is required to be obtained by the
respondent from the appropriate Government
before taking cognizance of the alleged
offence by the learned Special Judge
against the accused. In the instant case,
since the allegations made against the
appellants in the final report filed by
the respondent that the alleged offences
were committed by them in discharge of
their official duty, therefore, it was
essential for the learned Special Judge to
correctly decide as to whether the
previous sanction from the Central
Government under Section 197 Cr.P.C. was
required to be taken by the respondent,
before taking cognizance and passing an
order issuing summons to the appellants
for their presence.”
18. No exception can be taken to the proposition
as laid down in the above case. We having taken
the view that appellant being not removable by or
saved with the sanction of the Government was not
covered by Section 197 Cr.P.C. There was no
necessity to consider any further as to whether
acts of the appellant complained of were in
discharge of official duty or not.
19. We, thus, upheld the order of the CMM dated
03.12.2014 rejecting the application under Section
23
197 Cr.P.C. on the ground that appellant was not
removable by his office saved by or with the
sanction of the Government. We, however, delete
the following observations from the order dated
03.12.2014:-
“…………………………From the FSL report, it is
clear that accused S.K. Mighlani forged
the signatures of Sh. Gautam Dhar on
account opening form and moreover, the
introducer Rajender Kr. is absconding. In
view of this Court, an act of forgery
done by public servant cannot be
considered an act done in discharge of
his official duties……………………”
20. Although, we uphold the order of the High
Court as well as the order of CMM, but the
observations made by CMM in its order, as noted
above, are deleted. The appeal is partly allowed to
the extent indicated above.
...............................J.
( ASHOK BHUSHAN )
...............................J.
( K.M.JOSEPH)
NEW DELHI,
APRIL 30, 2019.
