Supreme Court of India
S. K. MIGLANIversusSTATE NCT OF DELHI
- Citation
- 2019 INSC 602
- Decided
- 30 April 2019
- Disposal
- Case Partly allowed
- Bench
- ASHOK BHUSHAN
Holding
Section 197 CrPC does not apply to a bank manager who is a public servant removable by the government, and therefore the magistrate’s order rejecting the sanction application is upheld, but the magistrate’s observation that the appellant committed forgery is improper and must be deleted.
Summary
The appellant, a manager in Bank of Baroda, was charged with forgery and related offences for opening a fictitious savings account to encash a refund cheque. He filed an application under Section 197 of the CrPC seeking discharge on the ground that prosecution sanction was required, arguing that he was a public servant. The Chief Metropolitan Magistrate rejected the application, holding that Section 197 did not apply because the appellant was not a public servant whose removal required government sanction, and also opined that the appellant had committed forgery. On appeal, the Supreme Court affirmed that a bank manager does not fall within the ambit of Section 197, so the magistrate’s rejection of the sanction application stands, but the magistrate’s conclusive observation of forgery was improper and was deleted. The Court also reiterated that a magistrate must not pass a definitive opinion on evidence before trial, though such evidence may be considered to determine a prima facie case. Consequently, the appeal was partly allowed, upholding the order of the magistrate except for the forged‑act observation.
Issues considered
- The applicability of Section 197 of the Criminal Procedure Code to a manager of a nationalised bank accused of forgery.
- Whether a magistrate may express a conclusive opinion on alleged forgery while deciding the applicability of Section 197.
- The necessity of obtaining prior sanction under Section 197 for prosecuting a public servant in this context.
- The evidentiary weight of forensic handwriting reports in determining forgery before trial.
Legislation cited
- Code of Criminal Procedure, 1973s. 197, s. 482
- Indian Evidence Act, 1872s. 45
- Indian Penal Code, 1860s. 120-B, s. 201, s. 409, s. 419, s. 420, s. 465, s. 467, s. 468, s. 471
- Lokpal and Lokayuktas Act, 2013
Subjects
Section 197 CrPCpublic servantsanction for prosecutionforgerymagistrate's opinionforensic handwriting reportevidence lawcriminal procedurebank employeeSection 482 CrPC
Judgment
1158 [2019]
SUPREME COURT 6 S.C.R. 1158
REPORTS [2019] 6 S.C.R.
A 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 charged
C u/ss. 201, 409, 419, 420, 467, 468, 471, 120-B of IPC – Application
by accused seeking his discharge on the ground of non-compliance
of 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 office
D
saved by or with the sanction of the Government, s. 197 was not
applicable – However, it was not correct for the CMM to make
observation that the employee had committed forgery, at the stage
when he was considering question of applicability of s. 197 – The
Magistrate, at any stage, prior to the final trial, is to avoid any
E conclusive opinion regarding any evidence collected during
investigation – However, such evidence can be looked into to form
an opinion as to whether prima facie case is made out against the
accused – Criminal Trial – Evidence.
Partly allowing the appeal, the Court
F HELD: 1.The 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. At the stage, when Court is considering the question
G regarding applicability of Section 197 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. [Paras 11 and 13][1167-F-G; 1168-B]
H
1158
S. K. MIGLANI v. STATE NCT OF DELHI 1159
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 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 B
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. [Para 15]
[1169-B-C]
C
S.P.S. Rathore v. Central Bureau of Investigation and
Another (2017) 5 SCC 817 : [2016] 5 SCR 335 –
referred to.
3. Therefore, the court upholds 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 D
by or with the sanction of the Government, is upheld. But the
observations made by CMM in its order, as regards Commission
of forgery against the accused, are deleted. [Paras 19 and
20][1170-F; 1171-A]
Parkash Singh Badal and Another v. State of Punjab E
and Others (2007) 1 SCC 1 : [2006] 10 Suppl. SCR
197; Inspector of Police and Another v. Battenapatla
Venkata 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. Ganguly
v. Central Bureau of Investigation (2016) 2 SCC 143 : F
[2015] 10 SCR 192 – relied on.
Case Law Reference
[2006] 10 Suppl. SCR 197 relied on Para 4
[1987] 2 SCR 216 relied on Para 10 G
[2016] 5 SCR 335 referred to Para 14
(2015) 13 SCC 87 relied on Para 16
[2016] 6 SCR 295 relied on Para 16
[2015] 10 SCR 192 relied on Para 17 H
1160 SUPREME COURT REPORTS [2019] 6 S.C.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.744 of 2019
From the Judgment and Order dated 06.08.2018 of the High Court
of Delhi at New Delhi in Crl. M.C. No.572 of 2015
Ajayinder Sangwan, Rajkumar Sharma, V.P. Singh, T.P. Singh,
B Sachin Choudhary, Summinder Paswan, Pradeep Kumar Shrama,
Amuridh Kumar, Devendra Singh, Advs. for the Appellant.
V. Balaji, Nachiketa Joshi, Praneet Pranav, B.V. Balaram Das,
Advs. for the Respondent.
C The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. 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
D 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. The brief facts of the case necessary to be noted are:-
2.1 The appellant has been working at the relevant time as
E 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
F
(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
G acted on fake request of original allottee Mr. Gautam Dhar
for cost reduction of flat from 10.66 lakhs to 7.77 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
H
S. K. MIGLANI v. STATE NCT OF DELHI 1161
[ASHOK BHUSHAN, J.]
opening a saving bank account No.33604 in Bank of Baroda, A
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. B
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 Braham Pal in order to encash the cheque dated
07.01.2000 for Rs.2,22,263/-. The supplementary charge C
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 D
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 E
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 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 F
(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 G
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
H
1162 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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, alongwith co-accused
Mahender Kumar, H.R. Sharma, S.C. Chugh, V.D. Nanda,
B 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
C 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
D 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.
E I hereby direct you to be tried by this court for the aforesaid
charges.
CMM(South) Saket Courts
New Delhi/13.12.2014
F
The charge is read over and explained to the accused in
vernacular language and he is questioned as under:
Ques.: Do you plead guilty or claim trial ?
Ans. I plead not guilty and claim trial.”
G 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
H discharge application of the petitioner;
S. K. MIGLANI v. STATE NCT OF DELHI 1163
[ASHOK BHUSHAN, J.]
ii Set aside the order dated 13.12.2014 passed by Sh. V.K. A
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/ B
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;
iv. Pass any such or further order(s) as this Hon’ble Court may C
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. D
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, E
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 discharge due to want of
sanction. It is further submitted that the appellant’s name came only in F
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 G
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
H
1164 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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 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
B
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
C 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.
D 4. Learned counsel for the respondent refuting the submission of
the appellant contends that 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
E 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.
F 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.
G 7. The CMM in his order dated 03.12.2014 while rejecting the
application of the appellant for 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:-
H
S. K. MIGLANI v. STATE NCT OF DELHI 1165
[ASHOK BHUSHAN, J.]
“Accused S.K. Mighlani pressed his application for discharge A
for wantof 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
B
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 thedecision given by
the Apex Court in the case of Parkash Singh Badal & Another vs. C
State of Punjab & Others {(2007) 1 SCC 1}, wherein it was
laid down that:
“……..The offence of cheating under Section 420 or forthat
matter offences relatable to Sections 467, 468, 471and 120B
can by no stretch of imagination by theirvery nature be D
regarded as having been committed by any public servant
while acting or purporting to act 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 E
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.”
F
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:-
G
“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
H
1166 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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, was at the time of commission of the alleged offence
B 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
C 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
D 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
E 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).”
F XXXXXXXXXXXXXXXXXXX”
9. The appellant being Manager in nationalized 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
G
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.
H
S. K. MIGLANI v. STATE NCT OF DELHI 1167
[ASHOK BHUSHAN, J.]
10. The question as to whether a manager of nationalized bank A
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
B
maintainability of the prosecution for want of sanction under Section
197 Cr.P.C. was 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:- C
“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 D
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 E
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 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 F
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 G
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.
H
1168 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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 Cr.P.C., it was not necessary for the CMM
B 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
C 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,
D following has been laid down:-
“47. With regard to the contention of the learned Senior Counsel
for the appellant-accused that the signatures of Ms Ruchika on
the memorandum were forged though she signed the same in front
of Shri Anand Prakash, Shri S.C. Girhotra, Ms Aradhana and
E 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
F 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
G 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
H cases that the sole evidence of a handwriting expert is not normally
S. K. MIGLANI v. STATE NCT OF DELHI 1169
[ASHOK BHUSHAN, J.]
sufficient for recording a definite finding about the writing being A
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
B
clear, direct evidence or by circumstantial evidence.”
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 C
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 inParkash Singh Badal
(supra) relied on by the counsel for the respondent and other judgments, D
i.e., Inspector of Police and Another Vs. Battenapatla Venkata
Ratnam and Another, (2015) 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 E
(supra), this 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 F
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”.”
G
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:-
H
1170 SUPREME COURT REPORTS [2019] 6 S.C.R.
A “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
B
decide whether previous 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
C 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
D
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
E 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 197 Cr.P.C. on the ground that
appellant was not removable by his office saved by or with the sanction
F 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
G 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……………………”
H
S. K. MIGLANI v. STATE NCT OF DELHI 1171
[ASHOK BHUSHAN, J.]
20. Although, we uphold the order of the High Court as well as A
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.
Kalapana K. Tripathy Appeal partly allowed.
B
C
D
E
F
G
H
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