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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  

others1, 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  another2  

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 others3, 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

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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

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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 others5, 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  others6.  

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

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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  another7,  

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  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:

“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

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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.