S. K. MIGLANI versus STATE NCT OF DELHI on 30 April 2019

[2019] 6 S.C.R. 1158

SUPREME COURT REPORTS

[2019] 6 S.C.R.

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S. K. MIGLANI

v.

STATE NCT OF DELHI

(Criminal Appeal No.744 of 2019)

B APRIL 30, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Code of Criminal Procedure, 1973:

ss. 197 and 482 – Employee of Nationalized Bank chargedCu/ss. 201, 409, 419, 420, 467, 468, 471, 120-B of IPC – Applicationby accused seeking his discharge on the ground of non-complianceof s. 197 i.e. failure to seek sanction for his prosecution –Application dismissed by Chief Metropolitan Magistrate (CMM) –Upheld by High Court in petition u/s. 482 – On appeal, held:Employee, being not a public servant removable from his officeDsaved by or with the sanction of the Government, s. 197 was notapplicable – However, it was not correct for the CMM to makeobservation that the employee had committed forgery, at the stagewhen he was considering question of applicability of s. 197 – TheMagistrate, at any stage, prior to the final trial, is to avoid anyEconclusive opinion regarding any evidence collected duringinvestigation – However, such evidence can be looked into to forman opinion as to whether prima facie case is made out against theaccused – Criminal Trial – Evidence.

Partly allowing the appeal, the Court

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HELD: 1.The appellant being not a public servantremovable from his office saved by or with the sanction of theGovernment, sanction under Section 197 Cr.P.C. was notapplicable. The appellant cannot claim protection under Section197 Cr.P.C. At the stage, when Court is considering the questionGregarding applicability of Section 197 Cr.P.C., it was not necessaryfor the CMM to make observation that appellant has done an actof forgery. The FSL report was one of the evidences collected byI.O. Its evidentiary value was still to be gone into at the time oftrial in the light of the evidences, which may come before thetrial court. [Paras 11 and 13][1167-F-G; 1168-B]H

K.CH. Prasad v. Smt. J. Vanalatha Devi and Others A

(1987) 2 SCC 52 : [1987] 2 SCR 216 – relied on.

2. The observation made by CMM by giving opinion usingthe expression that appellant has committed forgery ought tohave been avoided. The Magistrate, at any stage prior to finaltrial, is to avoid any conclusive opinion regarding any evidencecollected during investigation. It is true that evidence collectedin the investigation can be looked into to form an opinion as towhether prima facie charge is made out against an accused andwhat is the nature of offence alleged against him. [Para 15][1169-B-C]

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S.P.S. Rathore v. Central Bureau of Investigation andAnother (2017) 5 SCC 817 : [2016] 5 SCR 335 –referred to.

3. Therefore, the court upholds the order of the CMM dated03.12.2014 rejecting the application under Section 197 Cr.P.C.on the ground that appellant was not removable by his office savedby or with the sanction of the Government, is upheld. But theobservations made by CMM in its order, as regards Commissionof forgery against the accused, are deleted. [Paras 19 and20][1170-F; 1171-A]

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Parkash Singh Badal and Another v. State of Punjaband Others (2007) 1 SCC 1 : [2006] 10 Suppl. SCR197; Inspector of Police and Another v. BattenapatlaVenkata Ratnam and Another (2015) 13 SCC 87;Devinder Singh and Others v. State of Punjab(2016) 12 SCC 87 : [2016] 6 SCR 295 ; N. K. Gangulyv. Central Bureau of Investigation (2016) 2 SCC 143 :[2015] 10 SCR 192 – relied on.

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Case Law Reference

ACRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.744 of 2019

From the Judgment and Order dated 06.08.2018 of the High Courtof Delhi at New Delhi in Crl. M.C. No.572 of 2015

Ajayinder Sangwan, Rajkumar Sharma, V.P. Singh, T.P. Singh,Sachin Choudhary, Summinder Paswan, Pradeep Kumar Shrama,Amuridh Kumar, Devendra Singh, Advs. for the Appellant.

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V. Balaji, Nachiketa Joshi, Praneet Pranav, B.V. Balaram Das,Advs. for the Respondent.

CThe Judgment of the Court was delivered by

ASHOK BHUSHAN, J. 1. This appeal has been filed againstthe judgment of Delhi High Court dated 06.08.2018 dismissing theapplication filed by the appellant under Section 482 Cr.P.C. praying forsetting aside the order dated 03.12.2014 and 13.12.2014 passed by ChiefDMetropolitan Magistrate, Saket Court, New Delhi and further to quashthe 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. The brief facts of the case necessary to be noted are:- 2.1 The appellant has been working at the relevant time asEManager in Bank of Baroda, Faridabad Branch. Mr. AnantChatterjee, Director, Housing gave written complaint dated14.11.2000. On said basis a FIR No. 432 of 2000 dated15.11.2000 was lodged at PS Kotla Mubarakpur for offenceunder Section 201, 409, 419, 420, 467, 468, 471, 120-B IPC.It was the case of the prosecution that Mehender KumarF(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 andAsha Gupta and property dealer S.K. Khanna and S.K. Goeland SPA holder of original allottee Praveen Kumar illegallyGacted on fake request of original allottee Mr. Gautam Dharfor cost reduction of flat from 10.66 lakhs to 7.77 lakhs withapproval of competent authority and found that the originalFDR and refund application dated 07.07.1994 was removed/misplaced from the DDA file. The F.I.R., however, allegedthat refund cheque of Rs.2,22,263/- was withdrawn by G

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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 againstthe DDA officials, property dealers and Special Power ofAttorney Praveen Kumar. A supplementary charge sheetwas also filed, in which the appellant’s name was included.In the supplementary charge sheet, it is mentioned that theappellant opened a fictitious savings bank account No.33604in the name of Gautam Dhar in connivance with PraveenKumar, attorney of Shri Gautam Dhar and Shri Rajinder s/oShri Braham Pal in order to encash the cheque dated07.01.2000 for Rs.2,22,263/-. The supplementary chargesheet further stated that prosecution sanction under Section197 Cr.P.C. has been obtained against DDA officials.Investigation agency also obtained report dated 30.12.2002from Forensic Science Laboratory regarding handwriting onvarious documents. Handwriting opinion was also obtainedwith regard to signatures on account opening form of GautamDhar with the signature of the appellant.

2.3 An application dated 09.05.2012 was filed by the appellantbefore the ACMM, Saket Court, New Delhi in FIR No.432of 2000 stating that appellant is a public servant employedwith a nationalized bank as a Manager and it is mandatory toseek prosecution sanction against the appellant in terms ofSection 197 Cr.P.C. It was stated that prosecution has notsought prosecution sanction against the appellant-accused,hence he may be discharged on account of non-complianceof Section 197 Cr.P.C. The Chief Metropolitan Magistrate(South), Saket Court passed an order on 03.12.2004 rejectingthe application of the appellant seeking discharge for wantof sanction. Case was fixed for framing of charge on13.12.2014. On 13.12.2014, charge was framed against theappellant under Section 465/120-B I.P.C. following chargewas 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 A

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you accused S.K. Mighlani son of Sh. Lal Chand Mighlanias under :

That you, in 1996 and afterwards, at DDA, INA, VikasSadan, New Delhi and other places, alongwith co-accusedMahender Kumar, H.R. Sharma, S.C. Chugh, V.D. Nanda,Praveen Kumar, S.K. Khanna, S.K. Goel. M.L. Ahuja andAsha Gupta, agreed to commit criminal breach of trust withDDA, pursuant to which forged letters for depositingchallans, application for change of address, related affidavit,application for reduction of cost bearing forged signature ofallottee Sh. Gautam Dhar and forged seal of Notary wereentertained and further the cheque issued in the name ofallottee was encashed through forged account opened byyou 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, FaridabadBranch, Haryana, forged the account opening form in thename of allottee Sh. Gautam Dhar (account no. 33604) withintention to get the refund cheques encashed and therebycommitted an offence punishable U/s. 465 IPC and withinthe cognizance of this Court.

I hereby direct you to be tried by this court for the aforesaidcharges.

CMM(South) Saket Courts New Delhi/13.12.2014

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The charge is read over and explained to the accused invernacular language and he is questioned as under:

Ques.: Do you plead guilty or claim trial ?

Ans. I plead not guilty and claim trial.”

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2.4 An application under Section 482 Cr.P.C. was filed by theappellant before the High court of Delhi, where followingprayers 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 theHdischarge application of the petitioner; ii Set aside the order dated 13.12.2014 passed by Sh. V.K.AGulia, Ld. CMM, Saket Courts, New Delhi, thereby framingcharges against the petitioner by taking cognizance withoutobtaining sanction for prosecution as required U/s. 197Cr.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 IPCand further proceeding emanating therefrom qua thepetitioner; B

iv. Pass any such or further order(s) as this Hon’ble Court maydeem fit and proper in the interest of justice.”

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2.5 The High Court vide the impugned judgment dismissed theapplication filed under Section 482 Cr.P.C. upholding the orderof CMM dated 13.12.2014. Aggrieved against the saidjudgment, this appeal has been filed.D

3. Learned counsel for the appellant in support of this appealsubmits that the appellant, who was working as a Branch Manager inBank of Baroda had permitted opening of a savings account No.33604in discharge of his official duty. The appellant being a public servant,sanction ought to have been obtained under Section 197 Cr.P.C. forprosecuting the appellant. It is submitted that although sanction hasbeen obtained with regard to DDA officials, but no sanction has beenobtained for the appellant. He submits that CMM committed error inrejecting the application of the appellant for discharge due to want ofsanction. It is further submitted that the appellant’s name came only inthe supplementary charge sheet and allegations are only with regard toopening of a savings bank account. Investigation Agency has obtainedopinion of handwriting experts with respect to signatures of GautamDhar on the account opening form and the specimen signatures of theappellant. It is submitted that in the report dated 30.12.2002, which wasreceived from Forensic Science Laboratory, Govt. of NCT of Delhi withregard to signatures of Gautam Dhar on the account opening form andwith the specimen signatures of the appellant, it has been mentioned inthe report that it has not been possible to express a definite opinion onrest of the items on the basis of materials at hand. It is submitted that E

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Aalthough the said report was very much with the I.O., another reportwas called for from the Chief Forensic Scientist & Director (FS) toseek further opinion from GEQD, Shimla. It is submitted that the reporthas been submitted by letter dated 29.10.2003 opining that the signaturesof Gautam Dhar in the account opening form tallies with the specimensignatures of the appellant. He submits that the subsequent report, whichBwas sent by letter dated 29.10.2003 could not have been relied, since inthe signature of Gautam Dhar in the account opening form and signaturesof the appellant there is no similarity. It is further submitted that in anyview of the matter, opinion of a handwriting expert is only an opinionevidence, which is a weak nature of evidence and could not have beenCrelied in rejecting the claim of the appellant that he has opened the accountin exercise of his official duty. It is further submitted that the CMM inhis order dated 03.12.2014 has held that forgery has been committed bythe appellant in sanctioning the account opening form. It is submittedthat appellant has been held guilty before even trial has proceeded.

D4. Learned counsel for the respondent refuting the submission ofthe appellant contends that appellant cannot claim benefit of Section 197Cr.P.C., since the allegations against him are allegations of forgery, whichallegations cannot be held to be performed in exercise of official duty. Ithas been submitted that this Court has held in Parkash Singh Badaland Another Vs. State of Punjab and Others, (2007) 1 SCC 1 thatEthe offence of cheating under Section 420 or for that matter offencesrelatable to Sections 467, 468, 471 and 120B can by no stretch ofimagination by their very nature be regarded as having been committedby any public servant while acting or purporting to act in discharge ofofficial duty.F5. Learned counsel for the State submits that the application ofthe appellant has been rightly rejected by the CMM.

6. We have considered the submissions of the learned counsel forthe parties and have perused the records.

G7. The CMM in his order dated 03.12.2014 while rejecting theapplication of the appellant for discharge for want of sanction underSection 197 Cr.P.C. has relied on the judgment of this Court in ParkashSingh Badal (supra). With regard to the appellant, following order waspassed by CMM:- H

“Accused S.K. Mighlani pressed his application for dischargefor wantof sanction u/s 197 Cr.P.C. It was argued that he had openedaccount as per the procedure prescribed and since this act was donein discharge of his duties, the cognizance should not have been takenagainst him in absence of section 197 Cr.P.C. From the FSLreport, it is clear that accused S.K. Mighlani forged thesignatures of Sh. Gautam Dhar on account opening form andmoreover, the introducer Rajender Kr. is absconding. In viewof this Court, an act of forgery done by public servant cannotbe considered an act done in discharge of his official duties.In this regard, reliance can be placed on thedecision given bythe Apex Court in the case of Parkash Singh Badal & Another vs.State of Punjab & Others {(2007) 1 SCC 1}, wherein it waslaid down that:

“……..The offence of cheating under Section 420 or forthatmatter offences relatable to Sections 467, 468, 471and 120Bcan by no stretch of imagination by theirvery nature beregarded as having been committed by any public servantwhile acting or purporting to act in discharge of officialduty. In such cases, official status only provides anopportunity for commission of the offence”.

Otherwise also, when accused pleads sanction in bar, the onusis on him to prove its necessity, but the accused has not satisfiedthis Court that Section 197 Cr.P.C applies in this case becauseat the relevant time he was public servant not removable fromhis office saved by or with the sanction of the Government.”

8. One of the reasons given by CMM is that accused has notsatisfied the Court that Section 197 Cr.P.C. applies in this case becauseat the relevant time, he was public servant not removable from his officesaved by or with the sanction of the Government. Section 197 Cr.P.C.provides:- “197. Prosecution of Judges and public servants.—(1)Whenany person who is or was a Judge or Magistrate or a public servantnot removable from his office save by or with the sanction of theGovernment is accused of any offence alleged to have beencommitted by him while acting or purporting to act in the discharge A

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of his official duty, no Court shall take cognizance of such offenceexcept with the previous sanction [save as otherwise provided inthe Lokpal and Lokayuktas Act, 2013]- (a) in the case of a person who is employed or, as the casemay be, was at the time of commission of the alleged offenceemployed, in connection with the affairs of the Union, of theCentral Government; B

(b) in the case of a person who is employed or, as the casemay be, was at the time of commission of the alleged offenceemployed, in connection with the affairs of a State, of the StateGovernment:

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Provided that where the alleged offence was committed by aperson referred to in clause (b) during the period while aProclamation issued under clause (1) of Article 356 of theConstitution was in force in a State, clause (b) will apply as ifDfor the expression “State Government” occurring therein, theexpression “Central Government” were substituted.

Explanation — For the removal of doubts it is hereby declaredthat no sanction shall be required in case of a public servantaccused of any offence alleged to have been committed undersection 166A, section 166B, section 354, section 354A, section354B, section 354C, section 354D, section 370, section 375,section 376, section 376A, section 376AB, section 376C, section376D, section 376DA, section 376DBor section 509of theIndian Penal Code (45 of 1860).”

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9. The appellant being Manager in nationalized bank whethercan claim that before prosecuting him sanction is required under Section197. The CMM having come to opinion that appellant having not satisfiedthat he was public servant not removable from his office saved by orwith the sanction of the Government, Section 197 Cr.P.C. was notGattracted with regard to appellant. After coming to the above conclusions,it was not necessary for the CMM to enter into the question as to whetheracts alleged against the appellant were discharged in performance ofofficial duty.

10. The question as to whether a manager of nationalized bankcan claim benefit of Section 197 Cr.P.C. is not res integra. This Court inK.CH. Prasad Vs. Smt. J. Vanalatha Devi and Others, (1987) 2SCC 52 had occasion to consider the same very question in referenceto one, who claimed to be a public servant working in a nationalizedbank. The application filed by appellant in above case questioning themaintainability of the prosecution for want of sanction under Section197 Cr.P.C. was rejected by Metropolitan Magistrate and revision to theHigh Court also met the same fate. This Court while dismissing theappeal held that even though a person working in a nationalized bank isa public servant still provisions of Section 197 are not attracted at all. Inparagraph No.6 of the judgment, following has been held:- “6. It is very clear from this provision that this section is attractedonly in cases where the public servant is such who is not removablefrom his office save by or with the sanction of the Government. Itis not disputed that the appellant is not holding a post where hecould not be removed from service except by or with the sanctionof the government. In this view of the matter even if it is held thatappellant is a public servant still provisions of Section 197 are notattracted at all.”

11. The High Court in its impugned judgment has not adverted tothe above aspect and has only confined to the discussion as to whetheracts alleged of the appellant were in discharge of official duty. HighCourt also had relied on judgment of this Court in Parkash Singh Badal(supra). We having come to the conclusion that appellant being not apublic servant removable from his office saved by or with the sanctionof the Government, sanction under Section 197 Cr.P.C. was not applicable.The appellant cannot claim protection under Section 197 Cr.P.C. Weare of the view that examination of further question as to whetherappellant was acting or purporting to act in the discharge of his officialduty was not required to be gone into, when he did not fulfill conditionsfor applicability of Section 197(1) Cr.P.C.

12. We further notice that CMM in his order dated 03.12.2014 asextracted above made following observations:- “………………From the FSL report, it is clear that accusedS.K. Mighlani forged the signatures of Sh. Gautam Dhar onaccount opening form and moreover, the introducer Rajender Kr.

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[2019] 6 S.C.R.

Ais absconding. In view of this Court, an act of forgery done bypublic servant cannot be considered an act done in dischargeof his official duties………………………………”

13. At the stage, when Court is considering the question regardingapplicability of Section 197 Cr.P.C., it was not necessary for the CMMBto make observation that appellant has done an act of forgery. The FSLreport was one of the evidences collected by I.O. Its evidentiary valuewas 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 ofCthis Court in S.P.S. Rathore Vs. Central Bureau of Investigationand Another, (2017) 5 SCC 817, where this Court had held thatalthough the opinion of a handwriting expert is also relevant, but that toois not conclusive. This Court further held that expert evidence as tohandwriting is only opinion evidence, which need to be corroboratedeither by clear, direct or circumstantial evidence. In Paragraph No. 47,Dfollowing has been laid down:- “47. With regard to the contention of the learned Senior Counselfor the appellant-accused that the signatures of Ms Ruchika onthe memorandum were forged though she signed the same in frontof Shri Anand Prakash, Shri S.C. Girhotra, Ms Aradhana andEMrs Madhu Prakash and they have admitted the same, we are ofthe opinion that expert evidence as to handwriting is only opinionevidence and it can never be conclusive. Acting on the evidenceof any expert, it is usually to see if that evidence is corroboratedeither by clear, direct or circumstantial evidence. The sole evidenceFof a handwriting expert is not normally sufficient for recording adefinite finding about the writing being of a certain person or not.A court is competent to compare the disputed writing of a personwith others which are admitted or proved to be his writings. Itmay not be safe for a court to record a finding about a person’swriting in a certain document merely on the basis of expertGcomparison, but a court can itself compare the writings in order toappreciate properly the other evidence produced before it in thatregard. The opinion of a handwriting expert is also relevant inview of Section 45 of the Evidence Act, but that too is notconclusive. It has also been held by this Court in a catena ofcases that the sole evidence of a handwriting expert is not normally G

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sufficient for recording a definite finding about the writing beingof a certain person or not. It follows that it is not essential that thehandwriting expert must be examined in a case to prove or disprovethe disputed writing. It is opinion evidence and it can rarely, ifever, take the place of substantive evidence. Before acting onsuch evidence, it is usual to see if it is corroborated either byclear, direct evidence or by circumstantial evidence.”

15. The observation made by CMM as extracted above, by givingopinion using the expression that appellant has committed forgery oughtto have been avoided. The Magistrate, at any stage prior to final trial, isto avoid any conclusive opinion regarding any evidence collected duringinvestigation. It is true that evidence collected in the investigation canbe looked into to form an opinion as to whether prima facie charge ismade out against an accused and what is the nature of offence allegedagainst him.

16. Insofar as the judgment of this Court inParkash Singh Badal(supra) relied on by the counsel for the respondent and other judgments,i.e., Inspector of Police and Another Vs. Battenapatla VenkataRatnam and Another, (2015) 13 SCC 87 and Devinder Singh andOthers Vs. State of Punjab, (2016) 12 SCC 87 reiterating theproposition, which was laid down in Parkash Singh Badal (supra),there cannot be any quarrel to the proposition. In Parkash Singh Badal(supra), this Court laid down following in paragraph No.15;-

“15. It is their stand that where the public servant has ceased tobe a public servant in one capacity by ceasing to hold office whichis alleged to have been misused, the fortuitous circumstance ofthe accused being in another capacity holding an entirely differentpublic office is irrelevant. It was categorically held in R.S. Nayakcase, (1984) 2 SCC 183, in para 13 that “on analysis of thepolicy of the whole section the authority competent to remove thepublic servant from the office alleged to have misused is alonethe competent sanctioning authority”.”

17. Other judgments relied on by the counsel for the respondentlays down the same proposition. Learned counsel for the appellant hasalso placed reliance on N.K. Ganguly Vs. Central Bureau ofInvestigation, (2016) 2 SCC 143, where this Court in paragraph No.35laid down following:- AB

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A“35. From a perusal of the case law referred to supra, it becomesclear that for the purpose of obtaining previous sanction from theappropriate Government under Section 197 Cr.P.C., it is imperativethat the alleged offence is committed in discharge of official dutyby the accused. It is also important for the Court to examine theallegations contained in the final report against the appellants, toBdecide whether previous sanction is required to be obtained bythe respondent from the appropriate Government before takingcognizance of the alleged offence by the learned Special Judgeagainst the accused. In the instant case, since the allegations madeagainst the appellants in the final report filed by the respondentCthat the alleged offences were committed by them in discharge oftheir official duty, therefore, it was essential for the learned SpecialJudge to correctly decide as to whether the previous sanctionfrom the Central Government under Section 197 Cr.P.C. wasrequired to be taken by the respondent, before taking cognizanceand passing an order issuing summons to the appellants for theirDpresence.”

18. No exception can be taken to the proposition as laid down inthe above case. We having taken the view that appellant being notremovable by or saved with the sanction of the Government was notcovered by Section 197 Cr.P.C. There was no necessity to consider anyEfurther as to whether acts of the appellant complained of were indischarge of official duty or not.

19. We, thus, upheld the order of the CMM dated 03.12.2014rejecting the application under Section 197 Cr.P.C. on the ground thatappellant was not removable by his office saved by or with the sanctionFof the Government. We, however, delete the following observationsfrom the order dated 03.12.2014:- “…………………………From the FSL report, it is clear thataccused S.K. Mighlani forged the signatures of Sh. GautamDhar on account opening form and moreover, the introducerRajender Kr. is absconding. In view of this Court, an act offorgery done by public servant cannot be considered an actdone in discharge of his official duties……………………”

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20. Although, we uphold the order of the High Court as well asthe order of CMM, but the observations made by CMM in its order, asnoted above, are deleted. The appeal is partly allowed to the extentindicated above.

Kalapana K. Tripathy

Appeal partly allowed.

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