Sec.197 Cr.P.C. – whether a manager of nationalized bank can claim benefit of Section 197 Cr.P.C. is not res integra – no sanction is necessary = 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. = 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. We, thus, upheld the order of the CMM dated 03.12.2014 rejecting the application under Section 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……………………” 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

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

  1. 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.
  2. 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.
  3. 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.
  4. Learned counsel for the State submits that the
    application of the appellant has been rightly
    rejected by the CMM.
  5. We have considered the submissions of the
    learned counsel for the parties and have perused
    the records.
  6. 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.”
  7. 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”
  8. 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.
  9. 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.”
  10. 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.
  11. 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………………………………”
  12. 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.
  13. 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
  14. 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.
  15. 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”.”
  16. 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.”
  17. 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.
  18. 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……………………”
  19. 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.