Madhya Pradesh High Court
Sharda Devi vs The State Of Madhya Pradesh on 27 March, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:8819
1 WP-30799-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 30799 of 2024
SHARDA DEVI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Yash Sharma - Advocate for the petitioner.
Shri B M Patel, GA for the respondent/State.
Shri Sugam Gupta, Advocate for the respondent [R-4].
Reserved on : 27.3.2025
Pronounced on : 30/04/2025
ORDER
The present petition under Article 226 of the Constitution of India is preferred against the order dated 30.9.2024 passed by the Judicial Magistrate First Class Morena in UN CR 509/2024, whereby an application under section 156 (3) of Cr.P.C. filed by the respondent no.4 was allowed and while taking cognizance of the complaint directions were issued to the Station House Office, Police Station, Civil Lines Morena to register the FIR against the petitioner under section 420, 467, 468, 471 of IPC and also directed to forward the copy of the FIR to it.
(2) The aforesaid order has been assailed on two counts; firstly the Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 2 WP-30799-2024 petitioner being the public servant being Mayor of Municipal Corporation, Morena was not amenable to private complaint without any previous valid sanction from the Government for prosecution and secondly the offences are directed to be registered against the petitioner in wake of the facts of the case are not made out.
(3) Learned counsel for the petitioner has argued before this Court that in the legislative mandate engrafted in sub-section (1) of section 197 of Cr.P.C. the court's are debarred from taking cognizance of offence except with the previous sanction of the Court concerned in the case where the act complained of are alleged to have been committed by public servant in discharge of his official duty or purporting to be in discharge of official duty and such public servant is not removable from the office without sanction of the government which touches the very jurisdiction of the Courts, as it is a prohibition imposed by the statue from taking cognizance, thus, admittedly when no sanction was taken from the competent authority for the prosecution of the petitioner the very cognizance taken by the Court below under 156 (3) of Cr.P.C. was bad in law.
(4) It has further argued that the offences under section 420, 467, 468 and 471 of IPC in which the cognizance has been taken by the learned Court below can be said to be made out only when there is ample material evidence of cheating, forgery of valuable documents, forgery for the purpose of cheating and using the forged documents as a genuine. But, herein case there was no material before the learned Court below to have prima facie come to a conclusion that petitioner had dishonestly induced Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 3 WP-30799-2024 someone in order to deceive him or her to deliver any property to any person or to make alter or destroy the whole or any part of the valuable security, or anything which is signed or sealed, and which is capable or being converted into valuable security, thus, for attracting the provisions of section 420 it is paramount that the accused has not only cheated someone but also while doing so he or she had dishonestly induced the person who is cheated to deliver the property, therefore, there are three components of the offence (i) the deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea or dishonest intention of the accused at the time of making the inducement and it is not gainsaid that for the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made. It was thus argued that when the document i.e. mark-sheet which is stated to have been forged and had been submitted by the petitioner at the time of her nomination was not at all required to be filed along with the nomination, but was filed, it cannot be said that there was any intention of any deception or cheating to anyone.
(5) It was further argued that the Division Bench of this Court in the matter of Mahendra Kumar Shukla Vs. State of M.P. and others passed in Criminal Appeal No.657/2020 dated 2.9.2022 has opined that mark-sheet is not a valuable security, and therefore, offence under section 467 of IPC is not sustainable. Thus, the charge so far as it relates to section 467 of the IPC cannot be said to be made out.
(6) It was further argued that so far as charge under section 468 of Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 4 WP-30799-2024 IPC is concerned, as per the case of the complainant himself the present petitioner had not committed any forgery and tampered the documents, the only allegations against the petitioner is that a forged mark-sheet has been submitted at the time of submission of her nomination, thus, section 468 of IPC cannot be pressed into service against the petitioner.
(7) By taking this Court to the language embodied in section 461 of IPC it was urged that provisions comes into play against the person who had fraudulently or dishonestly used any document knowing fully well that it is a forged document, but as there is no allegation against the petitioner that she has either tampered any document or used said document which is a mark-sheet herein to procure any benefit, thus all the charges levelled against the present petitioner since had not made out deserves to be interfered with. On the basis of the aforesaid arguments it was submitted that the very cognizance taken by the learned Courts below while invoking the provisions under section 156 (3) of the Cr.P.C. the present petition deserves to be allowed and the order impugned herein is liable to be quashed.
(8) On the contrary learned counsel for the respondent/State submits that present matter is arising out of a private complaint filed by the respondent no.4 under section 156 (3) of Cr.P.C. and it had been alleged therein that the petitioner has filed a forged and fabricated mark-sheet along with her nomination form for Mayor of the City Morena which does not fall within the category of performing official/public duty and since the petitioner committed the crime by submitting a forged document and as she Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 5 WP-30799-2024 is not performing any public duties, therefore, there is no requirement of taking sanction from the government for launching prosecution against the petitioner and to this extent the arguments as advanced are baseless.
(9) While relying upon the decision of the Apex Court in the matter of Shadakshari vs The State Of Karnataka, AIR 2024 SC 590 it was argued that manufacturing of the forged document or fabrication of records cannot be a part of the official duty of a public servant and as the petitioner had acted in total derogation of her public duties no relief as claimed can be granted to her. Thus, it was prayed that the present petition be dismissed. Apart from the aforesaid arguments, no other arguments were raised.
(10) So far as counsel for respondent no.4 is concerned it was argued that the reliance placed by the petitioner in the matter of Priyanka Shrivastava Vs. State of U.P., reported in 2015 (6) SCC 287 is wholly misconceived as the very application under section 156 (3) of Cr.P.C was supported by an affidavit and thereafter Magistrate after considering all the facts has passed the order which in no way can be said to be perverse or illegal.
(11) So far as grant for sanction under section 197 of Cr.P.C. was concerned it was argued that there was no need of sanction in the present case as the act alleged against the present petitioner was prior to joining of the office of Mayor.
(12) It was further argued that the petitioner at the time of submitting her nomination form before the Returning Officer on affidavit had submitted a forged mark-sheet of Class X in order to play fraud on public Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 6 WP-30799-2024 at large. It was also argued that the petitioner has unduly influenced the voters of the constituency by personifying herself as an educated woman with an ulterior motive and in such circumstances after considering each and every aspect of the case learned Magistrate and has rightly directed registration of the FIR under section 420, 467, 468, 471 of IPC .
(13) Lastly it was argued that at the time of examining the complaint the learned Magistrate was not required to go into the issue of motive which existed for committing the crime rather it is only required by the Magistrate at that stage to consider whether the complaint discloses commission of cognizable offence and in the present case certainly the act of forgery and cheating is evident. Thus, the impugned order is impeccable and does not deserves to be interfered with.
(14) No other arguments was raised by the learned counsel for the respondent no.4.
(15) Heard the learned counsel for the parties and perused the record. (16) Before adverting to the merits of the matter this Court deems it expedient to discuss the powers of the Magistrate as envisaged under section 156(3) of Cr.P.C. For ready reference provision of Section 156 of Cr.P.C. incorporated under Chapter XII is quoted as under: -
156. Police officer's power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819
7 WP-30799-2024 an investigation as above- mentioned.
(17) While discussing the scope of section 156 (3) of Cr.P.C. the Apex Court in the matter of Anil Kumar vs. M.K. Aiyappa, (2013) 10 SCC 705 has observed in para 11 as under:
"11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
(18) The Apex Court in the case of Ramdev Food Products (P) Ltd. Vs. Sate of Gujarat, reported in (2015) 6 SCC 439 in para 22.1 has held as under:
22.1 The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.
(19) In light of the aforesaid enunciation it would reflected that Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 8 WP-30799-2024 learned Magistrate before exercising the jurisdiction under section 156 (3) is required to apply his mind and the said application of mind by the Magistrate should be reflected in the order. Mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed would the Magistrate to order investigation under section 156 (3) of Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted.
(20) Now in view of the aforesaid legal position, the question arises for consideration before this Court is to "Whether powers exercised by the Magistrate under section 156 (3) of Cr.P.C. was with due application of mind or not." In that regard to separate the wheat from chaff this Court finds it necessary to dwell upon all relatable aspects before reaching to the final conclusion. Per force it is first imperative to deal with provisions of section 197 of Cr.P.C, raised by the petitioner. For reference section 197 of Cr.P.C. quoted hereinbelow:
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 officer 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-
(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 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 Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819
9 WP-30799-2024 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,] [Inserted by Criminal Law (Amendment) Act, 2013 ] or section 509 of the Indian Penal Code.] (2)No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3)The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members(of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein the expression "State Government" were substituted.[(3-A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.(3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 10 WP-30799-2024 (21) Also the decision rendered by the Supreme Court in the case of P.K. Pradhan Vs. The State of Sikkim, reported in AIR 2001 SC 2547 is adverted to wherein the Apex Court has dealt with scope of section 197 of Cr.P.C. and also the intention of legislature for making the provisions mandatory to take previous sanction from government and has observed as under:
"5. The legislative mandate engrafted in sub section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the court itself. It is a prohibition imposed by the Statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code, "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty." The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so inter- related that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of situation. XXX XXX XXX
15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819
11 WP-30799-2024 furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial." (emphasis is ours) All in all, based on the judgments referred to above, it was contended, that even if it was assumed that Neeraj Kumar had been detained with effect from 24.06.1999, his detention by the appellants was "while acting or purporting to act" in the discharge of the appellants' official duties.
(22) Further the Apex Court in the case of Gauri Shankar Prasad v. State of Bihar, (2000) 5 SCC 15, has also dealt with section 197 of Cr.P.C and it was held that: -
"7. Section 197 CrPC affords protection to a Judge or a magistrate or a public servant not removable from his office save by or with the sanction of the Government against any offence which is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The protection is provided in the form that no court shall take cognizance of such offence except with the previous sanction of the Central Government or the State Government as the case may be. The object of the section is to save officials from vexatious proceedings against Judges, magistrates and public servants but it is no part of the policy to set an official above the common law. If he commits an offence not connected with his official duty he has no privilege. But if one of his official acts is alleged to be an offence, the State will not allow him to be prosecuted without its sanction. Section 197 embodies one of the exceptions to the general rules laid down in Section 190 CrPC, that any offence may be taken cognizance of by the Magistrates enumerated therein. Before this section can be invoked in the case of a public servant two conditions must be satisfied i.e. (1) that the accused was a public servant who was removable from his office only with the Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 12 WP-30799-2024 sanction of the State Government or the Central Government; and (2) he must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.
8. What offences can be held to have been committed by a public servant while acting or purporting to act in the discharge of his official duties is a vexed question which has often troubled various courts including this Court. Broadly speaking, it has been indicated in various decisions of this Court that the alleged action constituting the offence said to have been committed by the public servant must have a reasonable and rational nexus with the official duties required to be discharged by such public servant.
14. Coming to the facts of the case in hand, it is manifest that the appellant was present at the place of occurrence in his official capacity as Sub- Divisional Magistrate for the purpose of removal of encroachment from government land and in exercise of such duty, he is alleged to have committed the acts which form the gravamen of the allegations contained in the complaint lodged by the respondent. In such circumstances, it cannot but be held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant. It follows, therefore, that the appellant is entitled to the immunity from criminal proceedings without sanction provided under Section 197 Cr.P.C. Therefore, the High Court erred in holding that Section 197 Cr.P.C. is not applicable in the case."
(23) In case of Abdul Wahab Ansari (supra), the Supreme Court has dealt with Section 197 of Cr.P.C. and expressed the view as under :-
"7. Previous sanction of the competent authority being a pre- condition for the Court in taking cognizance of the offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter of taking cognizance and, therefore, there is no requirement that an accused should wait for taking such plea till the charges are framed. In Suresh Kumar Bhikamchand Jain vs. Pandey Ajay Bhushan and Ors., 1998(1) SCC, 205, a similar contention had been advanced by Mr. M.Cr.C. No.14484/2012, 4368/2013 & 34749/2019 Sibbal, the learned senior counsel appearing for the appellants in that case. In that case, the High Court had held on the application of the accused that the provisions of Section 197 get attracted. Rejecting the contention, this court had observed: (SCC pp.217-18 para 23) (Emphasis Supplied) "The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 13 WP-30799-2024 to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the Court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings."
The Court had further observed: (SCC pp. 218-19, para 24) "The question of applicability of Section 197 of the Code and the consequential ouster of jurisdiction of the court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not debarred from producing the relevant documentary materials which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty M.Cr.C. No.14484/2012, 4368/2013 & 34749/2019 thereby requiring sanction of the appropriate authority."
9. Coming to the second question, it is now well settled by the Constitution Bench decision of this Court in Matajog Dobey vs. H.C. Bhari, 1955 (2) SCR 925, that in the matter of grant of sanction under Section 197 of the Code of Criminal Procedure the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty. In other words, there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. In the said case it had been further held that where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. This decision was followed by this Court in Suresh Kumar Bhikamchand Jains case, 1998(1) SCC 205, and in a recent Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 14 WP-30799-2024 judgement of this Court in the case of Gauri Shankar Prasad vs. State of Bihar and Anr., 2000 (5) SCC 15. The aforesaid case has full force even to the facts of the present case inasmuch as in the said case, the Court had observed: (SCC p. 21, para 14) "It is manifest that the appellant was present at the place of occurrence in his official capacity as Sub-Divisional Magistrate for the purpose of removal of encroachment from government land and in exercise of such duty, he is alleged to have committed the acts which form the gravamen of the allegations contained in the complaint lodged by the respondent. In such circumstances, it cannot but be held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant. It follows, therefore, that the appellant is entitled to the immunity from criminal proceedings without sanction provided under Section 197 Cr.P.C." It is not necessary for us to multiply authorities on M.Cr.C. No.14484/2012, 4368/2013 & 34749/2019 this point and bearing in mind the ratio of the aforesaid cases and applying the same to the facts of the present case as indicated in the complaint itself, we have no hesitation to come to the conclusion that the appellant had been directed by the Sub-Divisional Magistrate to be present with police force and remove the encroachment in question and in course of discharge of his duty to control the mob, when he had directed for opening of fire, it must be held that the order of opening of fire was in exercise of the power conferred upon him and the duty imposed upon him under the orders of the Magistrate and in that view of the matter the provisions of Section 197(1) applies to the facts of the present case. Admittedly, there being no sanction, the cognizance taken by the Magistrate is bad in law and unless the same is quashed qua the appellant, it will be an abuse of the process of Court. Accordingly, we allow this appeal and quash the criminal proceeding, so far as the appellant is concerned."
(24) From the view taken by the Apex Court as aforesaid it is clear that the Court is precluded from entertaining complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is an accused of an offence alleged to have been committed during discharge of his official duty. This view of the Supreme Court makes it clear that if public servant during discharging of his official duty commits an offence for which complaint is made sanction of the government from the competent authority is pre-requisite condition.
(25) Herein case the petitioner, who is Mayor of City Morena, is Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 15 WP-30799-2024 alleged of submitting forged mark-sheet at the time of her nomination and though this Court finds that the status of the petitioner at present is that of a Mayor and can be considered to be of a public servant, but since the act alleged was prior to her being elected on the post of Mayor, therefore, at that time she was not a public servant, therefore, no sanction was required for her prosecution as provided under section 197 of Cr.P.C. Thus, the aforesaid arguments advanced by the learned counsel for the petitioner has no force, accordingly, it is hereby negatived.
(26) Now coming to the second aspect of the matter whether cognizance taken by the learned Magistrate under relevant provisions of IPC was justified and the said provisions are attracted in the matter is required to be answered. The learned Magistrate while taking cognizance had directed the police to register a crime under sections 420, 467, 468 and 471 of IPC. For reference the aforesaid provisions are quoted below:
420. Cheating and dishonestly inducing delivery of property. --
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
467. Forgery of valuable security, will, etc.-- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with 4 [imprisonment for life], or with imprisonment of either description for a term which may extend to Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 16 WP-30799-2024 ten years, and shall also be liable to fine.
468. Forgery for purpose of cheating.-- Whoever commits forgery, intending that the 1 [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged document or electronic record.
--Whoever fraudulently or dishonestly uses as genuine any 3 [document or electronic record] which he knows or has reason to believe to be a forged 3 [document or electronic record], shall be punished in the same manner as if he had forged such 3 [document or electronic record].
(27) A Division Bench of this Court in the matter of Mahendra Kumar Shukla (supra) had opined that mark-sheet is not a valuable security, and therefore, offence under section 467 of IPC is not made out. In the light of the aforesaid judgement Coordinate Bench of this Court in the matter of Ghanshyam Patel Vs. State of M.P., passed in Criminal Revision No.3829/2018 dated 1st December, 2022 had held that in view of the aforesaid judgement which is based upon a decision of the Apex Court in the matter of Shriniwas Pandit Dharmadhikari Vs. State of Maharashtra, reported in 1980 (4) SCC 551, the charge against the applicant therein under section 467 of IPC was not sustainable. This Court is bound by the aforesaid judgements and in view of the said judgements is constrained to hold that the cognizance taken against the present petitioner under section 467 of IPC is not sustainable.
(28) So far as Section 468 and 471 of IPC are concerned they begins with the expression "whoever commits" or "whoever uses". The intention of the law makers is clear that these provisions are aimed against the persons who has used the forged documents as a genuine document. If Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 17 WP-30799-2024 the story of the complainant is accepted on its face value it would be clear that there is no allegations against the present petitioner that she has either tampered the document or had fraudulently used the said documents for obtaining position or for any other purpose. Merely the allegations against the petitioner are that she had submitted a mark-sheet of Class X which later-on was found to be a forged mark-sheet and though the report was made to the police, the police had not registered a crime against her, therefore, the present complaint was moved. Thus, in the opinion of this Court when there are no allegations of tampering the documents against the petitioner or there is even no allegation of fraudulent use of the said mark-sheet for getting elected, in the opinion of this Court no case is made out against the present petitioner under section 468 and 471 of IPC. Another aspect with regard to attracting the provisions under section 468 and 471 of IPC which needs consideration is that there are two primary components that need to be fulfilled in order to establish the offence of forgery (i) that the accused have fabricated an instrument (ii) it had done with an intention that the forged document be used for the purpose of cheating. Simply put the offence of forgery requires a preparation of false document with a dishonest intention of causing damage or injury. The offences of forgery and cheating intersect and converse, as the act of forgery is committed with an intent to deceive or cheat an individual, which is not a case herein.
(29) So far as attracting the provisions under section 420 of IPC is concerned, section 420 of IPC provides that whoever cheats and thereby Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 18 WP-30799-2024 dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy, the whole or any part of valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security, shall be liable to be punished for a term which may extend to seven years and shall also be liable to fine. Further, Section 415 IPC distinctly defines the term 'cheating'. The provision elucidates that an act marked by fraudulent or dishonest intentions will be categorised as 'cheating' if it is intended to induce the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, causing damage or harm to that person. It is thus paramount that in order to attract the provisions of Section 420 IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he or she has dishonestly induced the person who is cheated to deliver property.
(30) Thus, there are, three components of this offence, i.e., (i) the deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea or dishonest intention of the accused at the time of making the inducement. There is no gainsaid that for the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made.
(31) It is well settled that every deceitful act is not unlawful, just as not every unlawful act is deceitful. Some acts may be termed both as unlawful as well as deceitful, and such acts alone would fall within the purview of Section 420 IPC. It must also be understood that a statement of fact is Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 19 WP-30799-2024 deemed 'deceitful' when it is false, and is knowingly or recklessly made with the intent that it shall be acted upon by another person, resulting in damage or loss. 'Cheating' therefore, generally involves a preceding deceitful act that dishonestly induces a person to deliver any property or any part of a valuable security, prompting the induced person to undertake the said act, which they would not have done but for the inducement.
(32) Having fully addressed the contours of the offence of 'cheating', if this Court adverts to the facts of the instant case in the complaint and even in the order impugned there is no allegation of cheating to the general public as has been addressed before this Court for the first time. The crux of Respondent No. 4's allegations are that the petitioner had purportedly submitted a forged mark-sheet at the time of submission of the nomination form for the post of Mayor. Assuming the allegation to be true, it would undoubtedly constitute an unlawful act, however, as set out earlier, it is crucial to underscore that not every unlawful act automatically qualifies as 'deceitful'. In the peculiar facts and circumstances of this case, the mark- sheet of Class X, which is allegedly later-on was found to be forged document, was not required for contesting on the post of Mayor at the time of filing of nomination form.
(33) Section 16 of the Municipal Corporation Act, 1956 provides for the qualification for election as Mayor or Councillor. For reference section 16 of the Municipal Corporation Act, 1956 reads as under:
16. Qualification for election as Mayor or Councillor. (1) Subject to the provisions of this Act, a person who is enrolled in the Municipal Electoral Roll as a voter, shall be qualified to be a Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 20 WP-30799-2024 candidate-
(a) for the election of Mayor, if he is not less than 25 years of age; and
(b) for the election of Councillor, if he is not less than 21 years of age.
(2) No person who is a candidate for any one ward shall be a candidate for any other ward.
(3) Any person who ceases to be a Mayor or Councillor shall, if qualified under sub-section (1), be eligible for re-election as such.] (4) [ If a person is elected for the Office of Mayor and Councillor both, he shall have to resign from one of the office within seven days from the date on which he is declared elected.] (34) Bare reading of section 16 of the Act goes to show that the person who is enrolled in the Municipal Electoral Roll as a voter shall be qualified to be a Councillor/Mayor and to be elected for such ward or from any other ward. No education qualifications have been prescribed for a person to be eligible for contesting for the post of Mayor, thus, when no educational qualifications are required, which is even well known to the public filing of the mark-sheet of any class would not entail that it was for the purpose of projecting oneself before the public to be educated and was with regard to an ulterior motive, therefore, could not be labelled as an act of deceit as filing of the mark-sheet did not confer any benefit upon the petitioner nor it had resulted in the loss or damage to the public. Apart from this when this Court has already held that the mark-sheet is not a valuable security, no question of dishonestly induce any person with an intention to deceive him arises, and therefore, it cannot be said that the petitioner has cheated anyone.
(35) In light of the aforesaid if once again the offence under section 468 and 471 of IPC are seen, the offence of forgery under section 468 of IPC postulates that whoever commits forgery intending that document and Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 21 WP-30799-2024 electronic document forged, shall be used for the purpose of cheating shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, whereas section 471 of IPC postulates that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Thus, there are two primary components that need to be fulfilled in order to establish the offence of forgery (i) the accused has fabricated an instrument, (2) it has done with an intention that the forged document would be used for the purpose of cheating. Simply put, the offence of forgery requires a preparation of a false document with a dishonest intention of causing damage or injury. The offences of forgery and cheating intersect and converge, as the act of forgery is is committed with the intent to deceive or cheat an individual. Having extensively addressed the aspect of dishonest intent in the context of cheating under section 420 its stand establish that no dishonest intention can be made out against the petitioner and as this Court had earlier held that mark-sheet is not a valuable security the offence under section 467 of IPC is also not made out.
Therefore, this Court finds that the cognizance taken by the learned Court below under sections 420, 467, 468, 471 of IPC against the petitioner is wholly misconceived and unsustainable.
(36) Thus, while allowing the petition, this Court is in no hesitation to quash the impugned order. As a consequence the directions so issued by the learned Trial Court for registration of an FIR against the petitioner are Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01 NEUTRAL CITATION NO. 2025:MPHC-GWL:8819 22 WP-30799-2024 also hereby quashed. FIR, if any, registered shall also stands quashed.
(MILIND RAMESH PHADKE) JUDGE (aspr) Signature Not Verified Signed by: ASHISH PAWAR Signing time: 30-04-2025 19:15:01