Sanction shouldn't be granted for vexatious prosecution; revisional court is not justified in setting aside an order of Magistrate unless the order is perverse or wholly unreasonable: SC [Read the Judgment]

Setting aside an order of the High Court, a Supreme Court Bench comprising of Justice Kurian Joseph and Justice A.M. Sapre observed that one of the main considerations to be borne in mind while considering whether sanction should be granted or not, should be whether the prosecution is genuine and not vexatious.

The first question before the apex Court were whether the High Court is justified in setting aside the same in exercise of its revisional jurisdiction, even after the Magistrate, on proper application of mind, decided to accept the closure report submitted by the police under Section 173(2) Cr.P.C, merely because another view may be possible.

The second question for consideration was whether High Court is within its jurisdiction to direct the investigating officer to make a request for sanction for prosecution from the competent authority.

Answering the first question in negative, the Bench observed, "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."

As for the second question, the Bench observed that 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," it observed.

A case was registered against the appellant, Mr. Sanjaysinh Ramrao Chavan, by the Anti-Corruption Bureau, under the Prevention of Corruption Act, 1988. The complainant, Mr. Dattatray Gulabrao Phalke had alleged that he had to pay an amount of Rs.75, 000/- by way of bribe for getting a certificate for nonagricultural use of his land.

A trap had been laid for the public servants and their conversation recorded with the complainant. It came thereafter came to light that they had indeed demanded a bribe of Rs.75, 000/-. However, the Director General, Anti-Corruption Bureau, M.S. Mumbai, after scrutinizing the investigation documents of the crime, ordered that since there is no evidence available to the extent of filing charge-sheet against APS Shri Sanjaysinh Ramrao Chavan in the trap case, no charge sheet will be filed against him.

A closure report was then submitted by the Investigating Officer, under Section 173(2) of the Code of Criminal Procedure, 1973. The closure Report was accepted by the Magistrate on 15.01.2012, after notice to the de facto complainant, wherein he observed, "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."

Dissatisfied with is, the de facto complainant approached the High Court in Revision. The High Court set aside the order passed by the Magistrate and directed the Director General of Police to forward the request for sanction for prosecution to the competent authority. This judgment was in question before the apex Court.

Read the judgment here.