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TMI Blog2015 (1) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint filed by the complainant Mr. Phalke in connection with the bribe demanded by the Sub-Divisional Officer and Sub-Divisional Magistrate, Sub Division Maval, Pune Mr. Sanjaysingh Chavan and Office Superintendent (Shirastedar). Thereafter on 22/11/2010 at 16.30 o'clock, myself, complainant Mr. Phalke, aforesaid two panchas, Police Inspector Mr. B.R. Patil, Police inspector Shri Belsare from the office of Anti Corruption Bureau came walking via Sadhu Waswani Chowk and went to new administration Building Pune-1. At that time, we started voice recorder from our custody and suppressed it and its mike below the shirt of complainant and started the recording button of the same. Thereafter as per our instructions, firstly complainant Mr. Phalke and Panch No. 1 Mr. Jadhav went to the office of the Sub-Divisional Officer and Sub-Divisional Magistrate, Sub Division Maval, Pune which is in the New Administrative building. Immediately behind them, myself, Pancha No. 2 Mr. Bedase and police officer and employees stood separately around the office of Sub-Divisional Officer and Sub-Divisional Magistrate Maval, Sub Division Pune so that no doubt will be created to anyone. After half an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et against APS Shri Sanjaysinh Ramrao Chavan, Sub-Divisional Officer and Magistrate, Maval, District Pune in the said trap case, decision is taken not to file charge sheet against him and by taking legal action against him, for preparing and sending proposal of Departmental Inquiry to the Competent Officer and since evidence is available against APS Shri Suhas Ramesh Soma, Awal Karkoon (Shirastedar), Sub-Divisional Officer Office, Maval, District Pune, orders are issued for submitting pre-prosecution sanction proposal to his Competent Officer for filing prosecution in Competent Court against him. The said Orders are received vide O.No.CR/438/Pune/2010-1846 dated 09/06/2011 of the Deputy Commissioner of Police/Superintendent of Police, Anti-Corruption Bureau, Pune and Xerox copy of abovementioned order is submitted herewith for perusal. Therefore, if approved, it is requested to acquit accused public servant Shri Sanjaysinh Ramrao Chavan, Sub-Divisional Officer and Magistrate, Maval Sub-Division, Pune, (Class-1) from the said offence as per Section 169 of Criminal Procedure Code." Learned Magistrate on 15.01.2012, after notice also to the de facto complainant, accepted the closure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in view of judgment in Vasanti Dubey Vs. State of Madhya Pradesh, the Court can discard closure report and may proceed under Section 190 r.w. 156 of Cr.P.C. or it may take cognizance upon the complaint and direct inquiry under Section 202 Cr.P.C. However, after going through the case papers, it is found that the authority under the Anti- Corruption Bureau has come to the correct conclusion that there is no sufficient ground to proceed against the accused No.1. As a result of this, I accept the report under Section 169 of Cr.P.C. The proceedings against accused No.1 are closed and accused No.1 is discharged." Dissatisfied, the first respondent - de facto complainant, approached the High Court in Revision leading to the impugned judgment. The High Court set aside the order passed by the learned Magistrate and directed the Director General of Police to forward the request for sanction for prosecution to the competent authority. The trial court was also directed to follow the legal course in the matter. To quote paragraphs-10 to 15 of the impugned judgment: "4. The crux of the matter is, the conversation between complainant/applicant and accused no.1 on 22.11.2010 was recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside. The report under Section 169 of Cr.P.C. is rejected. The learned Special Judge or the Investigator to follow the legal course in the matter. Learned DGP to forward case papers to appropriate Sanctioning Authority to pass orders in accordance with law. Observations are prima facie in nature." Heard learned counsel appearing for the parties. Learned Senior Counsel submits that the appellant has unblemished service since 1995 and he has been falsely implicated in this case so as to tarnish his image and spoil his career. The legal advisor in the Anti-Corruption Bureau was a retired Judge of the special court for trying offences under the PC Act, and on his legal advice only, the Director General of Police came to the conclusion that there was no ground for proceeding against the appellant. It is further submitted that the Magistrate of competent jurisdiction, after going through the entire records and having taken an informed decision not to proceed against the appellant, the High Court is not justified in setting aside the said order merely because another view is also possible. Learned Counsel for the respondents on the other hand submit that the High Court in revision wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of such offence said to have been committed by someone. 20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance." The above view has been further endorsed in Bhushan Kumar and another v. State (NCT of Delhi) and another[(2012) 5 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt takes judicial notice of an offence so as to initiate proceedings in respect of the alleged violation of law. The offence is investigated by the police. No doubt, the court is not bound by the report submitted by the police under Section 173(2) of Cr.PC. If the report is that no case is made out, the Magistrate is still free, nay, bound, if a case according to him is made out, to reject the report and take cognizance. It is also open to him to order further investigation under Section 173(8) of Cr.PC. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non- consideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting aside the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate, having seen the records and having heard the parties, has come to the conclusion that no offence is made out against the appellant under the provisions of the PC Act so as to prosecute him. Even according to the High Court, "the crux of the matter is the conversation between the complainant and the accused no.1 of 22.11.2010". That conversation is inaudible and the same is not to be taken in evidence. Therefore, once the 'crux' goes, the superstructure also falls, lacking in legs. Hence, prosecution becomes a futile exercise as the materials available do not show that an offence is made out as against the appellant. This part, unfortunately, the High Court missed. "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. ... "(Pepsi Foods Limited and another v. Special Judicial Magistrate and others[(1998) 5 SCC 749], 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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