SANJAYSINH RAMRAO CHAVAN Vs. DATTATRAY GULABRAO PHALKE & ANR

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 97 of 2015, Judgment Date: Jan 16, 2015

• 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?

                         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.

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').

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:

"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."


 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
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 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."


The investigating officer submitted his report under Section 173(2)  of  the
Code of Criminal  Procedure,  1973  (hereinafter  referred  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 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."


 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  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."


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
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."

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-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.

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:

"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.

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?

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


The above view has been further endorsed in Bhushan  Kumar  and  another  v.
State (NCT of Delhi) and another[2] holding that:

"11. In Chief Enforcement Officer v. Videocon  International  Ltd.  (SCC  p.
499, para 19) the expression "cognizance" was explained  by  this  Court  as
[pic]"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."

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  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. ..."

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 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.

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.

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

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 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 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).

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
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."

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.
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[1]    (2008) 2 SCC 492
[2]    (2012) 5 SCC 424
[3]    (1976) 3 SCC 736
[4]    2014 (10) SCALE 660
[5]    (1998) 5 SCC 749
[6]    (1977) 2 SCC 699
[7]    1992 Supp(1) SCC 222
[8]    (1997) 7 SCC 622

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