Sunday, 1 November 2015

How to determine admissibility of transcription of recorded conversation?

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 Ors. MANU/SC/0834/2014 : 2014 (10) SCALE 660.
REPORTABLE

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)
Citation;2015CriLJ1259, 2015(1)Crimes90(SC),(2015)3SCC123, 2015 (2) SCJ 253,


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 nonagricultural
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.” Page 3
3
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, firstlyPage 4
4
complainant Mr. Phalke and Panch No. 1 Mr. Jadhav went
to the office of the Sub-Divisional Officer and SubDivisional
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 SubDivisional
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 DivisionalPage 5
5
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 referredPage 6
6
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 SubDivision,
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, AntiCorruption
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, AntiCorruption
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, AntiCorruption
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 thePage 7
7
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 toPage 8
8
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.”Page 9
9
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 thePage 10
10
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-Page 11
11
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:Page 12
12
“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 bePage 13
13
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 424Page 14
14
“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 736Page 15
15
of conviction of the accused and establishment of a
prima facie case against him. The Magistrate has
been given an undoubted discretion in the matter
and the discretion has to be judicially exercised by
him. Once the Magistrate has exercised his
discretion it is not for the High Court, or even this
Court, to substitute its own discretion for that of the
Magistrate or to examine the case on merits with a
view to find out whether or not the allegations in the
complaint, if proved, would ultimately end in
conviction of the accused. …”
14. Cognizance is a process where the court takes judicial notice
of an offence so as to initiate proceedings in respect of the alleged
violation of law. The offence is investigated by the police. No doubt,
the court is not bound by the report submitted by the police under
Section 173(2) of Cr.PC. If the report is that no case is made out, the
Magistrate is still free, nay, bound, if a case according to him is
made out, to reject the report and take cognizance. It is also open to
him to order further investigation under Section 173(8) of Cr.PC. In
the case before us, the learned Magistrate went through the entire
records of the case, not limiting to the report filed by the police and
has passed a reasoned order holding that it is not a fit case to take
cognizance for the purpose of issuing process to the appellant.
Unless the order passed by the Magistrate is perverse or the view
taken by the court is wholly unreasonable or there is nonconsideration
of any relevant material or there is palpable
misreading of records, the revisional court is not justified in settingPage 16
16
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 secondPage 17
17
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 others4
.
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 660Page 18
18
prosecute him. Even according to the High Court, “the crux of the
matter is the conversation between the complainant and the
accused no.1 of 22.11.2010”. That conversation is inaudible and the
same is not to be taken in evidence. Therefore, once the ‘crux’ goes,
the superstructure also falls, lacking in legs. Hence, prosecution
becomes a futile exercise as the materials available do not show
that an offence is made out as against the appellant. This part,
unfortunately, the High Court missed. “Summoning of an accused in
a criminal case is a serious matter. Criminal law cannot be set into
motion as a matter of course. …”(Pepsi Foods Limited and another v.
Special Judicial Magistrate and 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 699Page 19
19
which goes to constitute personal liberty of a citizen. Its deprivation
shall be only as per procedure prescribed in the Code and the
Evidence Act conformable to the mandate of the Supreme law, the
Constitution. …”(State of Bihar v. P.P. Sharma, IAS and 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 622Page 20
20
supported by “trap” was false and whether the
prosecution would be vexatious particularly as it was
in the knowledge of the Government that the firm
had been blacklisted once and there was demand for
some amount to be paid to the Government by the
firm in connection with this contract. The discretion
not to sanction the prosecution was thus taken away
by the High Court.”
19. The High Court exceeded in its jurisdiction in substituting its
views and that too without any legal basis. The impugned order is
hence set aside. Appeal is allowed.

 ………..………………………..J.
 (KURIAN JOSEPH)
 …………………..……………J.
 (ABHAY MANOHAR SAPRE)
New Delhi;


January 16, 2015. 
Print Page

No comments:

Post a Comment