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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 97 OF 2015

[Arising out of S.L.P.(Criminal) No. 6927/2013]

Sanjaysinh Ramrao Chavan … Appellant (s)

Versus

Dattatray Gulabrao Phalke and others … Respondent (s)

J U D G M E N T

KURIAN, J.:

Leave granted.

2. Appellant is accused no.1 in C.R. No. 3446 of 2010 of Bund

Garden Police Station in the State of Maharashtra. The case is

registered by the Anti-Corruption Bureau under Sections 7, 12, 13(1)

(d) read with Section 13(2) of the Prevention of Corruption Act, 1988

(hereinafter referred to as ‘the PC Act’).

3. Genesis is Annexure-P7-complaint dated 22.11.2010 given

by the first respondent. According to him, he had to pay an amount

of Rs.75,000/- by way of bribe for getting a certificate for non-

agricultural use of his land. To quote from the complaint:

REPORTABLE

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“On 5th October 2009 an advertisement of “Bharat

Petroleum Corporation Ltd. Pune” appeared in daily

Lokmat and Loksatta newspapers. The advertisement was

for giving dealership of Petrol Pump. I had duly applied to

the company Bharat Petroleum Corporation Ltd. for the

same. As per the procedure my interview was arranged

on 30th March 2010. I was selected for this work. As per

the terms and conditions of Bharat Petroleum Corporation

Ltd. Pune it was binding on me to submit a “non

agricultural certificate” of my land at Pimpalsuti, Tal

Shirur, District Pune. To get the said certificate I applied to

the Maval Sub Divisional Officer and Magistrate Pune on

dated 9/9/2010. After the application I fulfilled all the

documents required as per their demand.

After this today on date 22/11/2010 at 11/20 a.m. I

went to the office of Maval Sub Divisional Officer and

Magistrate Pune for enquiring about the non agricultural

certificate which I had not received till then. That time I

met the clerk Shri Suhas Soma. He asked me to meet

clerk Shri Landge. When I personally met Shri Langde he

asked me to meet Shri Sanjaysingh Chavan Sub Divisional

Officer Maval. As per that I met Shri Sanjaysingh Chavan

Sub divisional Officer Maval personally in his office. At

that time he asked me the reason as to why I require the

non agricultural land certificate. I told him the reason of

petrol pump and also told him the area of land. After that

he asked me to meet the clerk Suhas Soma. After I went

out of his office, he called his clerk Suhas Soma in his

cabin. After Shri Soma came out of the cabin he asked me

“At what extent you are ready to pay?”. At that time I

asked him “What will be the amount of challan?”. That

time he said that “Challan amount is meager, an

additional amount of Rs. 1,00,000/- will have to be paid as

practice. If your matter was for house then I would have

requested the boss for less amount. But as you are going

to do business you should not have any objection to pay

Rs.1,00,000/-. At that time I requested the Office

Superintendent Mr. Soma that “this amount is huge, some

concession be given to me”. On that a compromise was

made between me and him and he demanded an amount

of Rs.75,000/- as a bribe.”

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4. On the basis of the above complaint, the vigilance arranged

a trap. The First Information Report narrates the events as follows:

“As the complaint filed by the complainant Mr. Dattatraya

Phalke is of a crime which comes under Anti Corruption

Act and as we are authorized to take cognizance of such

crime on the basis of complaint filed by Mr. Phalke by

deciding to arrange for a trap for arresting Mr. Chavan,

Sub-Divisional Officer and Sub-Divisional Magistrate, Sub

Division Maval, Pune and Mr. Soma, Office Superintendent

(Shirastedar), Sub Divisional Office, Maval Pune while

taking bribe from complainant Mr. Phalke and for that

purpose by giving a written letter to the Hon’ble Medical

Superintendent, Regional Mental Hospital, Yerawada,

Pune from their office, the services of 1) Dr. Amol

Ranganath Jadhav, age 25 years, Occupation-Service–

Medical Officer, Regional Mental Hospital, Yerawada,

Pune-6, residing at C-43, B. J. Medical College Hostel,

Near Collector Office, Pune-48, 2) Dr. Sham Bandu Badse,

age 55 years, Occupation–Service, Medical Officer,

Regional Mental Hospital, Yerawada, Pune-6, residing at

Sunderban Sadan, Nandanwan, Lohagon, Pune-48, got

available as the Panch witnesses. The complainant and

the Panch witnesses were introduced to each other. The

complaint filed by the complainant was briefly stated to

the Panchas. Accordingly, we gave the complaint filed by

the complainant for reading to panch witnesses and after

getting assured that the same is correct, they signed

below it. Thereafter, it was unanimously decided to verify

the complaint filed by the complainant Mr. Phalke in

connection with the bribe demanded by the Sub–

Divisional Officer and Sub-Divisional Magistrate, Sub

Division Maval, Pune Mr. Sanjaysingh Chavan and Office

Superintendent (Shirastedar).

Thereafter on 22/11/2010 at 16.30 o’clock, myself,

complainant Mr. Phalke, aforesaid two panchas, Police

Inspector Mr. B.R. Patil, Police inspector Shri Belsare from

the office of Anti Corruption Bureau came walking via

Sadhu Waswani Chowk and went to new administration

Building Pune-1. At that time, we started voice recorder

from our custody and suppressed it and its mike below

the shirt of complainant and started the recording button

of the same. Thereafter as per our instructions, firstly

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complainant Mr. Phalke and Panch No. 1 Mr. Jadhav went

to the office of the Sub-Divisional Officer and Sub-

Divisional Magistrate, Sub Division Maval, Pune which is in

the New Administrative building. Immediately behind

them, myself, Pancha No. 2 Mr. Bedase and police officer

and employees stood separately around the office of Sub-

Divisional Officer and Sub-Divisional Magistrate Maval,

Sub Division Pune so that no doubt will be created to

anyone. After half an hour from the said place,

complainant Shri Phalke and panch No.1 Mr. Jadhav came

out. Thereafter, we all came back from there to Pune

Office of Anti Corruption Bureau. After coming back to the

said office, we took out the recording machine placed

upon complainant Shri Phalke and closed its button of

recording and heard along with the panchas the

conversation which took place among complainant Mr.

Phalke, public servant Mr. Chavan and Mr. Soma and it

revealed that the public servant Mr. Chavan and Mr. Soma

have demanded a bribe of Rs. 75,000/- from the

complainant Mr. Phalke. With the consent of myself,

panchas and complainant, it was decided to take further

action on 23/11/2010. Accordingly, the complainant and

aforesaid panchas were instructed to remain present in

the office of the Anti-Corruption Bureau, Pune on

23/11/2010 at 10.00 o’clock in the morning.

On 23/11/2010 at 10:00 o’clock in the morning the

aforesaid panchas, complainant Mr. Phalke appeared in

the Pune office of Anti-Corruption Bureau. Thereafter, the

list of all the valuable things which were with the

complainant Mr. Phalke was made. The complainant and

panch wintnesses were informed about the Anthrasin

powder and ultraviolet light and its demonstration was

also shown. Anthrasin powder was applied to all the notes

of amount Rs. 75,000/- presented by the complainant for

giving it as bribe and the said notes were folded and kept

in the right side pocket of the complainant’s pant. Mr. S.K.

Satpute, Police/614, who applied Anthrasin powder to the

notes and who showed demonstration were eliminated

from the action of trap. The detailed instructions were

given to panch witnesses, complainant and other

officers/staff from team of trap regarding the action of

trap. Accordingly, a detailed pre-trap panchanama was

drawn in our office. The trap was arranged on 23/11/2010

at the office of Sub-Divisional Officer and Sub Divisional

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Magistrate Maval, Pune, Sub-Division 1 in the new

administration building when at about 12.02 o’clock

afternoon in the presence of panch No.1 Mr. Jadhav, the

public servant Mr. Suhas Ramesh Soma, age 46 years,

Office Superintendent (Shirastedar), Sub Divisional Office

Maval, Sub Division Pune, demanded the amount of bribe

from complainant Mr. Phalke and personally opened the

drawer No.2 which is on the right hand side of his table

and asked complainant Mr. Phalke to keep the amount in

it. Accordingly, as complainant Mr. Phalke kept the said

amount in the said drawer the public servant Mr. Soma

was caught red handed. When the documents/papers

which came in contact of the bribe amount were

examined in the lamp of ultraviolet light, then the faint

bluish shine of anthrasin powder was seen upon it. The

numbers of notes from bribe amount were compared with

the numbers of notes mentioned in the pre-trap

panchanama. It was seen that they are absolutely

accurate with all the numbers of notes mentioned in the

pre-trap panchnama. As the said amount of bribe is the

same amount which public servant Mr. Soma received

from complainant Mr. Phalke and as the shining of

anthrasin powder was seen on it, the same was seized

and sealed in presence of panchas. All the conversations

regarding demand of bribe amount between complainant

Mr. Phalke, public servant Shri Chavan and Soma was

recorded and it was heard in the presence of panchas and

its script was prepared and its mention has been made in

panchanama. Likewise, when an enquiry was made with

Panch No.1 Mr. Jadhav he told that public servant Mr.

Soma personally said that he has received the said

amount of bribe as per the instructions of Mr. Sanjaysingh

Ramrao Chavan, age 44 years, Sub-Divisional Officer and

Sub-Divisional Magistrate, Maval Sub Division Pune. A

detailed Panchnama of all the incidences which took place

at the time of trap was drawn in the presence of panchas

and the copy of the same was given to public servant Shri

Sanjaysingh Chavan and Suhas Soma and their signatures

were obtained.”

5. The investigating officer submitted his report under Section

173(2) of the Code of Criminal Procedure, 1973 (hereinafter referred

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to as “Cr.PC”) though wrongly mentioned as 169 Cr.PC. To quote

from the closure report:

“From overall investigation of the said crime and

from documents and evidence received, for filing case

under Section 7, 12, 13(1) (D) r/w. 13(2) of Prevention of

Corruption Act, 1988 as per the provisions in Confidential

Circular No.CDR/1099/Pra.Kra.62/99/11-A dated

03/04/2000 of the Maharashtra Government, General

Administration, against the Accused public servant herein

(1) Shri Sanjaysinh Ramrao Chavan, Sub-Divisional Officer

and Sub-Divisional Magistrate, Maval Sub-Division,

District Pune, (2) Shri Suhas Ramesh Soma, Awal Karkoon

(Shirastedar), Sub-Divisional Officer Office, Maval Sub-

Division, Pune, when report was submitted by the then

Investigating Officer Shri P.B. Dhanvat, Assistant

Commissioner of Police, Deputy Superintendent of Police,

Anti-Corruption Bureau, Pune vide outward

No.PBG/ACP/DSP/ACB/Pune/2011-283 dated 21/02/2011 to

the Director General, Anti-Corruption Bureau,

Maharashtra State, Mumbai through the Deputy

Commissioner of Police/Superintendent of Police, Anti-

Corruption Bureau, Pune for writing to the Competent

Officer Maharashtra Government (Revenue and Forests)

Mantralaya, Mumbai, of APS for obtaining pre-prosecution

approval/sanction as required under Section 19 of

Prevention of Corruption Act, 1988, and the Deputy

Superintendent of Police/Superintendent of Police, Anti-

Corruption Bureau, Pune has vide his Outward

No.CR/438/Pune/2010-1591 dated 20/05/2011 sent such

report to the Director General, Anti-Corruption Bureau,

M.S. Mumbai, after scrutinizing the investigation

documents of the crime, the Director General, Anti-

Corruption Bureau, Maharashtra State, Mumbai has

issued orders vide his Order No.CR/438/Pune/2010-4812

dated 03/06/2011 that “since there is no evidence

available to the extent of filing charge-sheet against APS

Shri Sanjaysinh Ramrao Chavan, Sub-Divisional Officer

and Magistrate, Maval, District Pune in the said trap case,

decision is taken not to file charge sheet against him and

by taking legal action against him, for preparing and

sending proposal of Departmental Inquiry to the

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Competent Officer and since evidence is available against

APS Shri Suhas Ramesh Soma, Awal Karkoon

(Shirastedar), Sub-Divisional Officer Office, Maval, District

Pune, orders are issued for submitting pre-prosecution

sanction proposal to his Competent Officer for filing

prosecution in Competent Court against him. The said

Orders are received vide O.No.CR/438/Pune/2010-1846

dated 09/06/2011 of the Deputy Commissioner of

Police/Superintendent of Police, Anti-Corruption Bureau,

Pune and Xerox copy of abovementioned order is

submitted herewith for perusal.

Therefore, if approved, it is requested to acquit

accused public servant Shri Sanjaysinh Ramrao Chavan,

Sub-Divisional Officer and Magistrate, Maval Sub-Division,

Pune, (Class-1) from the said offence as per Section 169

of Criminal Procedure Code.”

6. Learned Magistrate on 15.01.2012, after notice also to the

de facto complainant, accepted the closure report. To quote the

relevant portion fro-m the order:

“7.… Record shows that the complainant lodged report. If

complaint is perused, it appears that role of accused

No. 1 is to the effect that on 22.11.2010 when

complainant met accused No.1, he inquired about the

purpose for which N.A. certificate was required and he

asked the complainant to meet accused No.2. The

complaint shows the demand of money and

acceptance was made by accused No. 2. Accused No. 1

has filed bunch of papers consisting of his

representation for false implication, so also other

relevant papers. He has placed on record the

application for N.A. Certificate filed by the

complainant’s wife, then all correspondence between

the complainant and office of the accused No.1 to show

that the application of the complainant’s wife was

under process. Besides this, the accused No.1 has also

filed copy of his leave application showing that he was

on medical leave for six days from 15.11.2010 to

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20.11.2010 with permission to suffix Sunday falling on

21.11.2010. The applicant has filed the tickets to show

that he travelled during this period. The applicant has

also placed on record a news item published in Daily

Lokmat on 24.11.2010 (sic) in which it is mentioned

that when the amount of Rs.75,000/- was accepted, the

accused No. 1 was not in his office and it was accepted

by accused No. 2 Suhas Soma.

8.It is to be considered that Anti-Corruption Bureau has

filed papers and given reasons why decision not to

proceed against accused No. 1 was taken. If these

papers are perused, it appears that the Director

General of Police, Anti-Corruption Bureau has

considered the relevant papers and after considering

all aspects, passed a well-reasoned order. It is also

mentioned that the vague conversation between the

complainant and accused No.1 recorded at the time of

so-called verification will not help the Prosecution and

there is absolutely no evidence of demand and

acceptance against the accused No.1. It cannot be said

that the Director General of Anti-Corruption Bureau did

not apply his mind to the documents before him. When

the order was passed giving reason and, as it is a

speaking order, it cannot be said that the direction

given by the Director General of Police, Anti-Corruption

Bureau for submitting report under Section 169 of

Cr.P.C. is bad in law.

xxx xxx xxx xxx

12.I am well aware that in view of judgment in Vasanti

Dubey Vs. State of Madhya Pradesh, the Court can

discard closure report and may proceed under Section

190 r.w. 156 of Cr.P.C. or it may take cognizance upon

the complaint and direct inquiry under Section 202

Cr.P.C. However, after going through the case papers, it

is found that the authority under the Anti-Corruption

Bureau has come to the correct conclusion that there is

no sufficient ground to proceed against the accused

No.1. As a result of this, I accept the report under

Section 169 of Cr.P.C.

The proceedings against accused No.1 are closed and

accused No.1 is discharged.”

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7. Dissatisfied, the first respondent - de facto complainant,

approached the High Court in Revision leading to the impugned

judgment. The High Court set aside the order passed by the learned

Magistrate and directed the Director General of Police to forward the

request for sanction for prosecution to the competent authority. The

trial court was also directed to follow the legal course in the matter.

To quote paragraphs-10 to 15 of the impugned judgment:

“4.The crux of the matter is, the conversation between

complainant/applicant and accused no.1 on

22.11.2010 was recorded by the applicant as was

directed by the Investigating Agency, which clearly

prima facie reveals demand by accused-respondent

no.1.

xxx xxx xxx xxx

10.The legal Advisor has presumably a legal knowledge,

could not adversely comment on supplementary

statement of the complainant recorded during the

trap, as the supplementary statement is signed by

panch witness. He could have, prima facie, indicated

his legal knowledge in proper frame which is lacking.

He has no business at the end of report to write that

case against accused no. 2 is weak, as this report

could be flashed, used and raised as a defence by

the concerned in the prosecution. Such unwanted

effort will frustrate and fracture the prosecution.

11.Affidavit of Shri. Hemant V.Bhat though supports the

accused-respondent, however, he should have also

equally gone through the papers, he had no reason

to accept the doubtful findings of CFSL in respect of

recorded conversation between the complainant and

accused-respondent no.1. He has given reference to

the Manual. There should not be contest to the

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Manual, however, it has been twisted for the

benefits of the accused-respondent no.1.

12.The learned Special Judge, basically travelled

through the report or the opinion of the Advocate

which was not expected. He was swayed away

himself by accepting the defences. He should have

gone through the root of the matter, applied his

mind. There should not be dearth to a legal thought.

He could have seen brazen attempt of a colourable

exercise of power by a mighty officer, but the

learned Special Judge missed the track.

13.Reference to the Judgment of “Vasanti Dubey Vs.

State of Madhya Pradesh ((2012)2 SCC 731)”, was

certainly misplaced. In the said case the Judge

dealing with the matter was frustrated by the

persistent negative report furnished by the police.

However, on appreciation of material, the Supreme

Court recorded, already there were findings of

Lokayukta of a particular State of no material

against the said accused. The learned Judge should

not have ignored this aspect.

14.The Hon’ble Supreme Court in the matter of “State

of Maharashtra Through CBI Vs. Mahesh G. Jain” in

Criminal Appeal no. 2345 of 2009 decided on May

28, 2013 also indicated about the parameters

concerning sanction.

15.In the result, the order of the learned Special Judge,

accepting report under Section 169 of the Cr.P.C. is

set aside. The report under Section 169 of Cr.P.C. is

rejected. The learned Special Judge or the

Investigator to follow the legal course in the matter.

Learned DGP to forward case papers to appropriate

Sanctioning Authority to pass orders in accordance

with law. Observations are prima facie in nature.”

8. Heard learned counsel appearing for the parties. Learned

Senior Counsel submits that the appellant has unblemished service

since 1995 and he has been falsely implicated in this case so as to

tarnish his image and spoil his career. The legal advisor in the Anti-

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Corruption Bureau was a retired Judge of the special court for trying

offences under the PC Act, and on his legal advice only, the Director

General of Police came to the conclusion that there was no ground

for proceeding against the appellant. It is further submitted that the

Magistrate of competent jurisdiction, after going through the entire

records and having taken an informed decision not to proceed

against the appellant, the High Court is not justified in setting aside

the said order merely because another view is also possible. Learned

Counsel for the respondents on the other hand submit that the High

Court in revision was fully justified in looking into the merits of the

case and directing to proceed against the appellant. Whether there

is evidence so as to ultimately enter conviction is not what is

required to be seen at the time of taking cognizance; what is

required is only to see whether there is sufficient ground for

proceeding in the case.

9. At the outset, we make it clear that wherever the reference

is made by the investigating officer or the courts to 169 Cr.PC, the

same has to be read as a reference to Section 173 Cr.PC. Section

169 Cr.PC provides for the release of the accused when evidence is

deficient, whereas the report on completion of investigation is under

Section 173 Cr.PC. For easy reference, we may quote the relevant

provision:

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“169. Release of accused when evidence deficient .-

If, upon an investigation under this Chapter, it appears to

the officer in charge of the police station that there is no

sufficient evidence or reasonable ground of suspicion to

justify the forwarding of the accused to a Magistrate, such

officer shall, if such person is in custody, release him on

his executing a bond, with or without sureties, as such

officer may direct, to appear, if and when so required,

before a Magistrate empowered to take cognizance of the

offence on a police report, and to try the accused or

commit him for trial.”

What is submitted by the investigating officer on 05.07.2011 is

in fact a report on completion of investigation under Section 173

Cr.PC.

10. Two questions arise for consideration:

i.Once the Magistrate of competent jurisdiction, on proper

application of mind, decides to accept the closure report

submitted by the police under Section 173(2) Cr.PC, whether

the High Court is justified in setting aside the same in exercise

of its revisional jurisdiction merely because another view may

be possible?

ii. Whether the High Court is within its jurisdiction to direct the

investigating officer to make a request for sanction for

prosecution from the competent authority?

11. At the stage of taking cognizance of a case what is to be

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seen is whether there is sufficient ground for taking judicial notice of

an offence with a view to initiate further proceedings. In S.K. Sinha,

Chief Enforcement Officer v. Videocon International Ltd. and

others

1

, this Court has analysed the process and it has been held as

follows:

“19. The expression “cognizance” has not been

defined in the Code. But the word (cognizance) is of

indefinite import. It has no esoteric or mystic

significance in criminal law. It merely means “become

aware of” and when used with reference to a court or a

Judge, it connotes “to take notice of judicially”. It

indicates the point when a court or a Magistrate takes

judicial notice of an offence with a view to initiate

proceedings in respect of such offence said to have

been committed by someone.

20. “Taking cognizance” does not involve any formal

action of any kind. It occurs as soon as a Magistrate

applies his mind to the suspected commission of an

offence. Cognizance is taken prior to commencement

of criminal proceedings. Taking of cognizance is thus a

sine qua non or condition precedent for holding a valid

trial. Cognizance is taken of an offence and not of an

offender. Whether or not a Magistrate has taken

cognizance of an offence depends on the facts and

circumstances of each case and no rule of universal

application can be laid down as to when a Magistrate

can be said to have taken cognizance.”

12. The above view has been further endorsed in Bhushan

Kumar and another v. State (NCT of Delhi) and another

2

holding that:

1

(2008) 2 SCC 492

2

(2012) 5 SCC 424

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“11. In Chief Enforcement Officer v. Videocon

International Ltd. (SCC p. 499, para 19) the

expression “cognizance” was explained by this Court

as “it merely means ‘become aware of’ and when

used with reference to a court or a Judge, it connotes

‘to take notice of judicially’. It indicates the point

when a court or a Magistrate takes judicial notice of

an offence with a view to initiating proceedings in

respect of such offence said to have been committed

by someone.” It is entirely a different thing from

initiation of proceedings; rather it is the condition

precedent to the initiation of proceedings by the

Magistrate or the Judge. Cognizance is taken of

cases and not of persons. Under Section 190 of the

Code, it is the application of judicial mind to the

averments in the complaint that constitutes

cognizance. At this stage, the Magistrate has to be

satisfied whether there is sufficient ground for

proceeding and not whether there is sufficient

ground for conviction. Whether the evidence is

adequate for supporting the conviction can be

determined only at the trial and not at the stage of

enquiry. If there is sufficient ground for proceeding

then the Magistrate is empowered for issuance of

process under Section 204 of the Code.”

13. In Smt. Nagawwa v. Veeranna Shivalingappa Kinjalgi

and others

3

, the extent to which the Magistrate can go at the stage

of taking cognizance has been discussed. To quote:

“5. … It is true that in coming to a decision as

to whether a process should be issued the

Magistrate can take into consideration inherent

improbabilities appearing on the face of the

complaint or in the evidence led by the complainant

in support of the allegations but there appears to be

a very thin line of demarcation between a probability

3

(1976) 3 SCC 736

Page 15 15

of conviction of the accused and establishment of a

prima facie case against him. The Magistrate has

been given an undoubted discretion in the matter

and the discretion has to be judicially exercised by

him. Once the Magistrate has exercised his

discretion it is not for the High Court, or even this

Court, to substitute its own discretion for that of the

Magistrate or to examine the case on merits with a

view to find out whether or not the allegations in the

complaint, if proved, would ultimately end in

conviction of the accused. …”

14. Cognizance is a process where the court takes judicial notice

of an offence so as to initiate proceedings in respect of the alleged

violation of law. The offence is investigated by the police. No doubt,

the court is not bound by the report submitted by the police under

Section 173(2) of Cr.PC. If the report is that no case is made out, the

Magistrate is still free, nay, bound, if a case according to him is

made out, to reject the report and take cognizance. It is also open to

him to order further investigation under Section 173(8) of Cr.PC. In

the case before us, the learned Magistrate went through the entire

records of the case, not limiting to the report filed by the police and

has passed a reasoned order holding that it is not a fit case to take

cognizance for the purpose of issuing process to the appellant.

Unless the order passed by the Magistrate is perverse or the view

taken by the court is wholly unreasonable or there is non-

consideration of any relevant material or there is palpable

misreading of records, the revisional court is not justified in setting

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aside the order, merely because another view is possible. The

revisional court is not meant to act as an appellate court. The whole

purpose of the revisional jurisdiction is to preserve the power in the

court to do justice in accordance with the principles of criminal

jurisprudence. Revisional power of the court under Sections 397 to

401 of Cr.PC is not to be equated with that of an appeal. Unless the

finding of the court, whose decision is sought to be revised, is shown

to be perverse or untenable in law or is grossly erroneous or

glaringly unreasonable or where the decision is based on no material

or where the material facts are wholly ignored or where the judicial

discretion is exercised arbitrarily or capriciously, the courts may not

interfere with decision in exercise of their revisional jurisdiction.

15. The whole purpose of taking cognizance of an offence under

Section 190(1)(b) Cr.PC is to commence proceedings under Chapter

XVI of the Cr.PC by issuing process under Section 204 Cr.PC to the

accused involved in the case. No doubt, it is not innocence but

involvement that is material at this stage. Once the legal

requirements to constitute the alleged offence qua one of the

accused are lacking, there is no point in taking cognizance and

proceeding further as against him.

16. It is to be noted that in the first complaint filed by the second

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respondent - the de facto complainant, there is no allegation for any

demand for bribe by the appellant. The allegation of demand is

specifically against accused no.2 only. That allegation against the

appellant is raised only subsequently. Be that as it may, the only

basis for supporting the allegation is the conversation that is said to

be recorded by the voice recorder. The Directorate of Forensic

Science Laboratories, State of Maharashtra vide Annexure-B report

has stated that the conversation is not in audible condition and,

hence, the same is not considered for spectrographic analysis.

Learned Counsel for the respondents submit that the conversation

has been translated and the same has been verified by the panch

witnesses. Admittedly, the panch witnesses have not heard the

conversation, since they were not present in the room. As the voice

recorder is itself not subjected to analysis, there is no point in

placing reliance on the translated version. Without source, there is

no authenticity for the translation. Source and authenticity are the

two key factors for an electronic evidence, as held by this Court in

Anvar P.V. v. P.K. Basheer and others

4

.

17. The Magistrate, having seen the records and having heard

the parties, has come to the conclusion that no offence is made out

against the appellant under the provisions of the PC Act so as to

4

2014 (10) SCALE 660

Page 18 18

prosecute him. Even according to the High Court, “the crux of the

matter is the conversation between the complainant and the

accused no.1 of 22.11.2010”. That conversation is inaudible and the

same is not to be taken in evidence. Therefore, once the ‘crux’ goes,

the superstructure also falls, lacking in legs. Hence, prosecution

becomes a futile exercise as the materials available do not show

that an offence is made out as against the appellant. This part,

unfortunately, the High Court missed. “Summoning of an accused in

a criminal case is a serious matter. Criminal law cannot be set into

motion as a matter of course. …”(Pepsi Foods Limited and another v.

Special Judicial Magistrate and others

5

, Paragraph-28). The process

of the criminal court shall not be permitted to be used as a weapon

of harassment. “Once it is found that there is no material on record

to connect an accused with the crime, there is no meaning in

prosecuting him. It would be a sheer waste of public time and

money to permit such proceedings to continue against such a

person”(See State of Karnataka v. L. Muniswamy and others

6

.

Unmerited and undeserved prosecution is an infringement of the

guarantee under Article 21 of the Constitution of India. “… Article 21

assures every person right to life and personal liberty. The word

personal liberty is of the widest amplitude covering variety of rights

5

(1998) 5 SCC 749

6

(1977) 2 SCC 699

Page 19 19

which goes to constitute personal liberty of a citizen. Its deprivation

shall be only as per procedure prescribed in the Code and the

Evidence Act conformable to the mandate of the Supreme law, the

Constitution. …”(State of Bihar v. P.P. Sharma, IAS and another

7

,

Paragraph-60).

18. Once the prosecution is of the view that no case is made out

so as to prosecute an accused, unless the court finds otherwise,

there is no point in making a request for sanction for prosecution. If

the prosecution is simply vexatious, sanction for prosecution is not

to be granted. That is one of the main considerations to be borne in

mind by the competent authority while considering whether the

sanction is to be granted or not. In Mansukhlal Vithaldas

Chauhan v. State of Gujarat

8

, this Court has in unmistakable

terms made it clear that no court can issue a positive direction to an

authority to give sanction for prosecution. To quote:

“32. By issuing a direction to the Secretary to

grant sanction, the High Court closed all other

alternatives to the Secretary and compelled him to

proceed only in one direction and to act only in one

way, namely, to sanction the prosecution of the

appellant. The Secretary was not allowed to consider

whether it would be feasible to prosecute the

appellant; whether the complaint of Harshadrai of

illegal gratification which was sought to be

7

1992 Supp(1) SCC 222

8

(1997) 7 SCC 622

Page 20 20

supported by “trap” was false and whether the

prosecution would be vexatious particularly as it was

in the knowledge of the Government that the firm

had been blacklisted once and there was demand for

some amount to be paid to the Government by the

firm in connection with this contract. The discretion

not to sanction the prosecution was thus taken away

by the High Court.”

19. The High Court exceeded in its jurisdiction in substituting its

views and that too without any legal basis. The impugned order is

hence set aside. Appeal is allowed.

………..………………………..J.

(KURIAN JOSEPH)

………………… ..……………J.

(ABHAY MANOHAR SAPRE)

New Delhi;

January 16, 2015.