SANJAYSINH RAMRAO CHAVANversusDATTATRAY GULABRAO PHALKE AND OTHERS

                          [2015] 1 S.C.R. 130


 A                SANJAYSINH RAMRAO CHAVAN
                                   v.
          DATTATRAY GULABRAO PHALKE AND OTHERS
                (Criminal Appeal No. 97 of 2015)

                          JANUARY 16, 2015
 B
                     [KURIAN JOSEPH AND
                  ABHAY MANOHAR SAPRE, JJ.]

         Code of Criminal Procedure, 1973 - ss.397 to 401 -
  C Revisional jurisdiction - Scope of - Registration of criminal
    case under Prevention of Corruption Act - Closure report by
    police uls 173(2) Cr.P. C. - Accepted by Magistrate - High
     Court in exercise of revisional jurisdiction set aside order of
     Magistrate and directed the Investigating Officer to make a
- D request for sanction for prosecution - On appeal, held: The
    court in exercise of revisional jurisdiction not to interfere,
     unless the decision which is sought to be revised is perverse,
    untenable in law, grossly erroneous, glaringly unreasonable,
    based on no material, or in disregard of material facts or where
  E judicial discretion is exercised arbitrarily and capriciously -
    In the present case, order of Magistrate in accepting the
    closure report was reasoned and not perverse - The High
    Court was not justified in setting aside the order of Magistrate
    - Since no case is made out to prosecute the accused,
  F sanction for prosecution is a/so not required - Prevention of
     Corruption Act, 1988 - ss. 7, 12, 13(1)(d) and 13(2).

         Allowing the appeal, the Court

        HELD: 1.1. At the stage of taking cognizance of a
 G 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. The court is not bound by
   the report submitted by the police u/s 173(2) Cr.PC. If the
   report is that no case is made out, the Magistrate is still
 H                                130
  SANJAYSINH RAMRAO CHAVAN v. DATTATRAY                131
            GULABRAO PHALKE
free, nay, bound, if a case according to him is made out,     A
to reject the report and take cognizance. It is also open
to him to order further investigation under Section 173(8)
of Cr.PC. [paras 11 and 14) [146-A; 148-B-D]

     S.K. Sinha, Chief Enforcement Officer v. Videocon        8
International Ltd. and others 2008 (2) SCR 36 = 2008
(2) sec 492, Bhushan Kumar and another v. State (NCT of
Delhi) and another 2012 (2) SCR 696 = 2012 (5) sec 424;
Smt. Nagawwa v. Veeranna Shivalingappa Kinjalgi and
                               =
others 1976 (0) Suppl. SCR 123 1976 (3) SCC 736 - relied      C
on

    1.2. 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          D
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           E
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    F
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   G
revisional jurisdiction. [para 14) [148-D-H]

     1.3. 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.      H
    132     SUPREME COURT REPORTS            [2015] 1 S.C.R.


A 2. That allegation against the appellant is raised
  subsequently. 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 has stated that the conversation is
B not in audible condition and, hence, the same is not
  considered for spectrographic analysis. 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
c translation. Source and authenticity are the two key
  factors for an electronic evidence. [para 16] [149-C-F]

        Anvar P. V. v. P.K. Basheer and others 2014 (10) SCALE
    660 - relied on.

D     1.4. Prosecution becomes a futile exercise as the
  materials available do not show that an offence is made
  out as against the appellant. The process of the criminal
  court shall not be permitted to be used as a weapon of
  harassment. Unmerited and undeserved prosecution is
E an infringement of the guarantee under Article 21 of the
  Constitution of India. [para 17] [150-B, C, D]

         Pepsi Foods Limited and another v. Special Judicial
    Magistrate and others 1997 (5) Suppl. SCR 12 = 1998
    (5) SCC 749; State of Karnataka v. L. Muniswamy and others
F                    =
    1977 (3) SCR 113 1977 (2) SCC 699; State of Bihar v. P.P.
    Sharma, /AS and another 1991 (2) SCR 1 = 1992 (1) Suppl.
    sec 222 - relie'd on.
       2. Once the prosecution is of the view that no case
G 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
H
   SANJAYSINH RAMRAO CHAVAN v. DATTATRAY                 133
             GULABRAO PHALKE
borne in mind by the competent authority while                  A
considering whether the sanction is to be granted or not.
[para 18] (150-F-G; 151-A]

     Mansukhlal Vithaldas Chauhan v. State of Gujarat 1997
(3) Suppl. SCR 705 = 1997 (7) sec 622 - relied on.              8
                  Case Law Reference :
    2008 (2) SCR 36              relied on        para 11
    2012 (2) SCR 696             relied on        para 12
                                                                c
    1976 (0) Suppl. SCR 123      relied on        para 13
    2014 (10) SCALE 660          relied on        para 16
    1997 (5) Suppl. SCR 12       relied on        para 17
    1977 (3) SCR 113             relied on        para 17       D

    1991 (2) SCR 1               relied on        para 17
    1997 (3) Suppl. SCR 705      relied on        para 18
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal            E
No. 97 of 2015.

    From the Judgment and Order dated 07.08.2013 of the
High Court of Judicature at Bombay in Criminal Revision
Application No. 361 of 2012.
                                                                F
     Harin Raval, Ravindra Keshavrao Adsure, Siddeshwar
Biradar for the Appellant.

    Arun Pednekar, Sunil Kumar Verma, Aniruddha P. Mayee,
Charudatta Mahindrakar, A. Selvin Raja for the Respondents.     G

    The Judgment of the Court was delivered by

    KURIAN, J. 1. Leave granted.

     2. Appellant is accused no.1 in C.R. No. 3446 of 2010 of   H
     134        SUPREME COURT REPORTS                  [2015] 1 S.C.R.


 A   Sund 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').
 8
         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
 C 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
 D         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 a,nd conditions of Bharat Petroleum Corporation
           Ltd. Pune it was binding on me to submit a "non
 E         agricultural certificate" of my land at Pimpalsuti, Tai Shirur,
           District Pune. To get the said certificate I applied to the
           Mavai Sub Divisional Officer and Magistrate Pune on
           dated 9/9/2010. After the application I fulfilled all the
           documents required as per their demand.
 F                 After this today on date 22/11/2010 at 11/20 a.m. I
           went to the office of Mavai 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
 G         Shri Landge. When I personally met Shri Langde he asked
           me to meet Shri Sanjaysingh Chavan Sub Divisional
           Officer Mavai. As per that I met Shri Sanjaysingh Chavan
           Sub divisional Officer Mavai personally in his office. At that
           time he asked me the reason as to why I require the non
·H         agricultural land certificate. I told him the reason of petrol
   SANJAYSINH RAMRAO CHAVAN v. DATIATRAY                     135
        GULABRAO PHALKE [KURIAN, J.]
    pump and also told him the area of land. After tnat·he          A
    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         B
    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     c
    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."

     4. On the basis of the above complaint, the vigilance          D
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          E
    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 Mavai, Pune and Mr. Soma, Office Superintendent        F
    (Shirastedar), Sub· Divisional Office, Mavai 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. Amal             G
    Ranganath Jadhav, age 25 years, Occupatiori-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. Sharn Santlu
    Badse, age 55 years, Occupatio.n-Servlce, Medical               H
    136       SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A         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
B         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
c         complainant Mr. Phalke in connection with the bribe
          demanded by the Sub-Divisional Officer and Sub-
          Divisional Magistrate, Sub Division Mavai, Pune Mr.
          Sanjaysingh Chavan and Office Superintendent
          (Shirastedar).
D         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
E         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
F         of the Sub-Divisional Officer and Sub-Divisional
          Magistrate, Sub Division Mavai, 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-
G         Divisional Officer and Sub-Divisional Magistrate Mavai,
          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
H
    SANJAYSINH RAMRAO CHAVAN v. DATTATRAY                      137
         GULABRAO PHALKE [KURIAN, J.]
    office, we took out the recording machine placed upon              A
    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                    B
    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-            c
    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. Thereafte_!", the list of all   D
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           E
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!>f-tl"ap. T.he detailed instructions were   F
given to panch witnesses, corn_mainant and other officers/staff
from team of trap regardirigJtTeaction 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 Mavai, Pune, Sub-                G
Division 1 in the new administration building when at about
12.02 o'clock afternoon in t~e presence of panch No.1 Mr.
Jadhav, the public servant Mr. Suhas Ramesh Soma, age 46
years, Office Superintendent (Shirastedar), Sub Divisional
Office Mavai, Sub Division Pune, demanded the amount of                H
     138       SUPREME COURT REPORTS             [2015] 1 S.C.R.


A 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. Phalkakept the said amount
  in the said drawer the public servant Mr. Soma was caught red
B 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
c panchanama. It was seen that they are absolutely accurate with
  all the number$ 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
0
  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
E 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, Mavai
  Sub Division Pune. A detailed Panchnama of all the incidences
F 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."

G.        5. The investigating officer submitted his report under
     Section 173(2) of the Code of Criminal Procedure, 1973
     (hereinafter referred to as "Cr.P~") though wrongly mentioned
     as 169 Cr.PC. To quote from the closure report:

           "From overall investigation of the said crime and from
H
SANJAYSINH RAMRAO CHAVAN v. DATTATRAY                139
     GULABRAO PHALKE [KURIAN, J.]
  documents and evidence received, for filing case under A
  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 daJed 03/04/
  2000 of. the Maharashtra Governmeny, General
  Administration, against the Accused public servant herein B
  (1) Shri Sanjaysinh Ramrao Chavan, Sub-Divisional Officer
  and Sub-Divisional Magistrate, M~val Sub-Division, District
  Pune, (2) Shri Su has· Ramesh Soma, Awai Karkoon
  (Shirastedar), Sub-Divisional Officer Office, Mavai Sub-
  Division, Pune, when report was submitted by the then    c
  Investigating Officer Shri P.B. Dhanvat, Assistant
  Commissioner of Police, Deputy Superintendent of Police,
  Anti-Corruption Bure~u. Pune vide outward No.PBG/ACP/
  DSP/ACB/Pune/2b1 ~ -283 dated 21 /02/2011 to the
  Director General, Anti-Corruption Bureau, Maharashtra D
  State, Mumbai thrnugh the Deputy Commissioner of
  Police/Superintende11t of Police, Anti-Corruption ·Bureau,
  Pune for writing to the Competent Officer Maharashtra
  Government (Revenue and Forests) ~antralaya, Mumbai,
  of APS for obtaining pre-prosecution approval/sanction as
· required under Section 19 of Prevention of Corruption Act, E
  1988, and the Deputy Superintend~nt of Police/
  Superintendent of Police, Anti-Corruption Bureau, Pune
  has vide his Outwarcti No.CR/438/Pune/2010-1591 dated
  20/05/2011 sent s~ct\ report to the Director General, Anti-
  Corruption Bureau, M.S. Mumbai, after scrutinizing the F
  investigation doc~ments 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 G
  Shri Sanjaysinh Ramrao Chavan, Sub-Divisional Officer
  and Magistrate, Mavai, 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 H
    140       SUPREME COURT REPORTS                [2015] 1 S~C.R


A        Competent Officer and since evidence is available against
         APS Shri Suhas Ramesh Soma, Awai Karkoon
         (Shirastedar), Sub-Divisional Officer Office, Mavai, District
       · Pune, orders are issued for submitting pre-prosecution
         sanction proposal to his Competent Officer for filing
B        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 ·
c        herewith for perusal.

          Therefore, if approved, it is requested to acquit accused
          public servant Shri Sanjaysinh Ramrao Chavan, Sub-
          Divisional Officer and Magistrate, Mavai Sub-Division,
          Pune, (Class-1) from the said offence as per Section 169
D         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:
E
                "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
F               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
G               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
H               application of the complainant's wife was under
SANJAYSINH RAMRAO CHAVAN v. DATTATRAY                  141
     GULABRAO PHALKE [KURIAN, J.]
      process. Besides this, the accused No.1 has also        A
      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.   B
      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        c
      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        D
      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                E
      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       F
      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        G
      report under Section 169 of Cr.P.C. is bad in law.
      )()()(          xxx              )()()(         xxx
      12. I am well aware that in view of judgment in
      Vasanti Dubey Vs. State of Madhya Pradesh, the          H
    142      SUPREME COURT REPORTS                  (2015) 1 S.C.R.


A              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
8              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.
c              The proceedings against accused No.1 are closed
               and accused No.1 is discharged."

       7. Dissatisfied, the first respondent - de facto complainant,
  approached the High Court in Revision leading to the impugned
D 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
E 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
F              clearly prima facie reveals demand by accused-
               respondent no.1.
               )()()(   )()()(   )()()(         )()()(



G              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
H
SANJAYSINH RAMRAO CHAVAN v. DATTATRAY                143
     GULABRAO PHALKE [KURIAN, J.]
      proper frame which is lacking. He has no business      A
      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.           B

      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      C
      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.
                                                             D
      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       E
      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.
                                                             F
      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      G
      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.
                                                             H
    144      SUPREME COURT REPORTS                 [2015) 1 S.C.R.


A               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.
B
                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
c               matter. Learned DGP to forward case papers to
                appropriate Sanctioning Authority to pass orders in
                accordance with law. Observations are prima facie
                in nature."

D         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-Corruption Bureau was a
E   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
F   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
G   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
H   case.
   SANJAYSINH RAMRAO CHAVAN v. DATTATRAY                    145
        GULABRAO PHALKE [KURIAN, J.]
     9. At the outset, we make it clear that wherever the           A
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         B
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    C
    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         D
    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       E
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        F
           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?                                         G

           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?
                                                                    H
    146        SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A      11. 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
B process and it has been held as follows:

          "19. The expression "cognizance" ha$ 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
c         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.
D
          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
E         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
F         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 another2
    holding that:
G
          "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
    1.    (2008) 2 sec 492.
H   2.   (2012) s sec 424.
     SANJAYSINH RAMRAO CHAVAN v. DATTATRAY                     147
          GULABRAO PHALKE [KURIAN, J.]
      means 'become aware of and when used with reference A
      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 B
      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 c
       constitutes cognizance. At this stage, the Ma.gistrate 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
                                                                       0
       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 Kinja/gi
and others3, the extent to which the Magistrate can go at the          E
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          F
      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         G
      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
3.    (1976) 3 sec 736.                                                H
    148       SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A         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 proce_ss where the court takes judicial
B
  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
C 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
D 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
E 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 accotdance with
F 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
G 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.
H
     SANJAYSINH RAMRAO CHAVAN v. DATTATRAY                     149
          GULABRAO PHALKE [KURIAN, J.]
     15. The whole purpose of taking cognizance of an offence          A
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           B
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 respondent - the de facto complainant, there is no              C
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             D
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                 E
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              F
translatibn. Source and authenticity are the two key factors for
an electronic evidence, as held by this Court in Anvar P. V. v.
P. K. Ba/sheer and others. 16

    17. The Magistrate, having seen the records and having             G
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 qetween the
4.    2014 (10) SCALE 660.                                             H
    150        SUPREME COURT REPORTS . [2015] 1 S.C.R.


A 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
B 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 others5, Paragraph-28). The
c process of the criminal court shall not be permitted_t~ 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.
0
  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 person1al
E 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, !AS and
  another, P~ragraph-60).
F
       18. Once the prosecution is of the yiew 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 ~s simply vexatious, sanction
G for prosecution is not to be granted. That is one of the main
  considerations to be borne in mind by the competent authority

    5.   (1998) 5 sec 749.
    6.   (1977) 2 sec 699.
H   7.   1992 Supp(1) sec 222.
   SANJAYSINH RAMRAO CHAVAN v. DATTATRAY                     151
        GULABRAO PHALKE [KURIAN, J.]

while considering whether the sanction is to be granted or not.      A
In Mansukh/al Vithaldas Chauhan v. State of Gujarat8, 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:
                                                                     B
     "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         C
     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       D
     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."
                                                                     E
    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.

Kalpana K. Tripathy                                 Appeal allowed




1. (1997) 1 sec 522.