REFERRED FINAL REPORT IS ALSO A FINAL REPORT: 9. At the outset, we make it clear that wherever the reference is made by the investigating officer or the courts to 169 Cr.P.C, the same has to be read as a reference to Section 173 Cr.P.C. Section 169 Cr.P.C provides for the release of the accused when evidence is deficient, whereas the report on completion of investigation is under Section 173 Cr.P.C. For easy reference, we may quote the relevant provision:
“169. Release of accused when evidence deficient.- If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is no 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.P.C.
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WHAT IS MEANT BY COGNIZANCE? POWERS OF MAGISTRATE DURING TAKING COGNIZANCE: 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.P.C. 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.P.C. 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 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.P.C 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.P.C is to commence proceedings under Chapter XVI of the Cr.P.C by issuing process under Section 204 Cr.P.C 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.
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NO CASE MADE OUT – SANCTION NOT NECESSARY: 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 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 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.”
PARTY: SANJAYSINH RAMRAO CHAVAN VERSUS DATTATRAY GULABRAO PHALKE AND OTHERS – CRIMINAL APPEAL NO. 97 OF 2015 [ARISING OUT OF S.L.P.(CRIMINAL) NO. 6927/2013] – JANUARY 16, 2015.
