TMI Blog2015 (1) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution is simply vexatious, sanction for prosecution is not to be granted. That is one of the main considerations to be borne in mind by the competent authority while considering whether the sanction is to be granted or not. In Mansukhlal Vithaldas Chauhan v. State of Gujarat[(1997) 7 SCC 622], 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. 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. - CRIMINAL APPEAL NO. 97 OF 2015 [Arising out of S.L.P.(Criminal) No. 6927/2013] - - - Dated:- 16-1-2015 - JOSEPH, KURIAN AND SAPRE,ABHAY MANOHAR, JJ. J U D G M E N T KURIAN, J.: Leave granted. Appellant is accused no.1 in C.R. No. 3446 of 2010 of Bund Garden Police Station in the State of Maharashtra. The case is registered by the Anti- Corruption Bureau under Sections 7, 12, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act'). Genesis is Annexure-P7-complaint dated 22.11.2010 giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded an amount of ₹ 75,000/- as a bribe. On the basis of the above complaint, the vigilance arranged a trap. The First Information Report narrates the events as follows: As the complaint filed by the complainant Mr. Dattatraya Phalke is of a crime which comes under Anti Corruption Act and as we are authorized to take cognizance of such crime on the basis of complaint filed by Mr. Phalke by deciding to arrange for a trap for arresting Mr. Chavan, Sub-Divisional Officer and Sub-Divisional Magistrate, Sub Division Maval, Pune and Mr. Soma, Office Superintendent (Shirastedar), Sub Divisional Office, Maval Pune while taking bribe from complainant Mr. Phalke and for that purpose by giving a written letter to the Hon'ble Medical Superintendent, Regional Mental Hospital, Yerawada, Pune from their office, the services of 1) Dr. Amol Ranganath Jadhav, age 25 years, Occupation-Service- Medical Officer, Regional Mental Hospital, Yerawada, Pune-6, residing at C-43, B. J. Medical College Hostel, Near Collector Office, Pune-48, 2) Dr. Sham Bandu Badse, age 55 years, Occupation-Service, Medical Officer, Regional Mental Hospital, Yerawada, Pune-6, residing at Sunderban Sadan, Nandanw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ₹ 75,000/- presented by the complainant for giving it as bribe and the said notes were folded and kept in the right side pocket of the complainant's pant. Mr. S.K. Satpute, Police/614, who applied Anthrasin powder to the notes and who showed demonstration were eliminated from the action of trap. The detailed instructions were given to panch witnesses, complainant and other officers/staff from team of trap regarding the action of trap. Accordingly, a detailed pre-trap panchanama was drawn in our office. The trap was arranged on 23/11/2010 at the office of Sub-Divisional Officer and Sub Divisional Magistrate Maval, Pune, Sub-Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Bure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o show that the application of the complainant's wife was under process. Besides this, the accused No.1 has also filed copy of his leave application showing that he was on medical leave for six days from 15.11.2010 to 20.11.2010 with permission to suffix Sunday falling on 21.11.2010. The applicant has filed the tickets to show that he travelled during this period. The applicant has also placed on record a news item published in Daily Lokmat on 24.11.2010 (sic) in which it is mentioned that when the amount of ₹ 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 dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t V.Bhat though supports the accused- respondent, however, he should have also equally gone through the papers, he had no reason to accept the doubtful findings of CFSL in respect of recorded conversation between the complainant and accused-respondent no.1. He has given reference to the Manual. There should not be contest to the Manual, however, it has been twisted for the benefits of the accused- respondent no.1. 12. The learned Special Judge, basically travelled through the report or the opinion of the Advocate which was not expected. He was swayed away himself by accepting the defences. He should have gone through the root of the matter, applied his mind. There should not be dearth to a legal thought. He could have seen brazen attempt of a colourable exercise of power by a mighty officer, but the learned Special Judge missed the track. 13. Reference to the Judgment of Vasanti Dubey Vs. State of Madhya Pradesh ((2012)2 SCC 731) , was certainly misplaced. In the said case the Judge dealing with the matter was frustrated by the persistent negative report furnished by the police. However, on appreciation of material, the Supreme Court recorded, already there were findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provision: 169. Release of accused when evidence deficient.-If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial. What is submitted by the investigating officer on 05.07.2011 is in fact a report on completion of investigation under Section 173 Cr.PC. Two questions arise for consideration: i. Once the Magistrate of competent jurisdiction, on proper application of mind, decides to accept the closure report submitted by the police under Section 173(2) Cr.PC, whether the High Court is justified in setting aside the same in exercise of its revisional jurisdiction merely because another view may be possible? ii. Whether the High Court is within its jurisdiction to direct the investigating o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code. In Smt. Nagawwa v. Veeranna Shivalingappa Kinjalgi and others[(1976) 3 SCC 736], the extent to which the Magistrate can go at the stage of taking cognizance has been discussed. To quote: 5. ... It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an offence under Section 190(1)(b) Cr.PC is to commence proceedings under Chapter XVI of the Cr.PC by issuing process under Section 204 Cr.PC to the accused involved in the case. No doubt, it is not innocence but involvement that is material at this stage. Once the legal requirements to constitute the alleged offence qua one of the accused are lacking, there is no point in taking cognizance and proceeding further as against him. It is to be noted that in the first complaint filed by the second respondent - the de facto complainant, there is no allegation for any demand for bribe by the appellant. The allegation of demand is specifically against accused no.2 only. That allegation against the appellant is raised only subsequently. Be that as it may, the only basis for supporting the allegation is the conversation that is said to be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Maharashtra vide Annexure-B report has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis. Learned Counsel for the respondents submit that the conversation has been translated and the same h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 222], Paragraph-60). Once the prosecution is of the view that no case is made out so as to prosecute an accused, unless the court finds otherwise, there is no point in making a request for sanction for prosecution. If the prosecution is simply vexatious, sanction for prosecution is not to be granted. That is one of the main considerations to be borne in mind by the competent authority while considering whether the sanction is to be granted or not. In Mansukhlal Vithaldas Chauhan v. State of Gujarat[(1997) 7 SCC 622], this Court has in unmistakable terms made it clear that no court can issue a positive direction to an authority to give sanction for prosecution. To quote: 32. By issuing a direction to the Secretary to grant sanction, the High Court closed all other alternatives to the Secretary and compelled him to proceed only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. The Secretary was not allowed to consider whether it would be feasible to prosecute the appellant; whether the complaint of Harshadrai of illegal gratification which was sought to be supported by trap was false and whether the prosecution would be ve ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
