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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.   

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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

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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cheque of Rs.2,22,263/- was withdrawn by  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

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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

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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,

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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:   

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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;  

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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

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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

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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

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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

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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,

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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

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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

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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

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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 appellant-

accused that the signatures of Ms Ruchika  

on the memorandum were forged though she  

signed the same in front of Shri Anand

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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

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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

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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

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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.