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SUPREME COURT OF INDIA
ASHOK BHUSHAN, K.M. JOSEPH, JJ.
S.K. MIGLANI – APPELLANT
VERSUS
STATE NCT OF DELHI – RESPONDENT
CRIMINAL APPEAL NO. 744 of 2019 (Arising Out of SLP(Crl.) No. 11070 of 2018)
Decided on : 30-04-2019
(B) Indian Penal Code, 1860 – Sections 201, 409, 419, 420, 467, 468, 471 and 120-B – Criminal Procedure Code, 1973 – Sections 197 and 482 – Criminal breach of trust, cheating, forgery and conspiracy by Bank Manager – Rejection of discharge petition and quashing petition by CMM and High Court respectively – CMM having come to opinion that appellant having not satisfied that he was public servant not removable from his office saved by or with sanction of Government, Section 197 Cr.P.C. was not attracted with regard to appellant – After coming to such conclusions, it was not necessary for CMM to enter into question as to whether acts alleged against appellant were discharged in performance of official duty – Appellant being not a public servant removable from his office saved by or with sanction of Government, sanction under Section 197 Cr.P.C. was not applicable – Appellant cannot claim protection under Section 197 Cr.P.C. – Magistrate, at any stage prior to final trial, is to avoid any conclusive opinion regarding any evidence collected during investigation – At the stage, when Court is considering question regarding applicability of Section 197 Cr.P.C., it was not necessary for CMM to make observation that appellant has done an act of forgery – FSL report was one of evidences collected by I.O. – Its evidentiary value was still to be gone into at the time of trial in light of evidences which may come before trial court – Appellant being not removable by or saved with sanction of Government was not covered by Section 197 Cr.P.C. – There was no necessity to consider any further as to whether acts of appellant complained of were in discharge of official duty or not – Impugned orders upheld. (Paras 9, 11, 13, 15, 18, 19 and 20)
Facts of Case:
Cheating and forgery charges. Appellant has been working at the relevant time as Manager in Bank. Present appeal has been filed against judgment of Delhi High Court dismissing application filed by appellant under Section 482 Cr.P.C. praying for setting aside order passed by Chief Metropolitan Magistrate, Saket Court, New Delhi and further to quash F.I.R. under Sections 201, 409, 419, 420, 467, 468, 471, 120-B I.P.C. and charge sheet.
Findings of Court:
We having taken view that appellant being not removable by or saved with sanction of Government was not covered by Section 197 Cr.P.C. There was no necessity to consider any further as to whether acts of appellant complained of were in discharge of official duty or not.
Result : Appeal Partly allowed.
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JUDGMENT
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. 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 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 ShriBraham 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 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. Lai 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, 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, appl
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