VASANTI DUBEYversusSTATE OF MADHYA PRADESH

                         [2012] 1 S.C.R. 330

A                         VASANTI DUBEY
                                   v.
                  STATE OF MADHYA PRADESH
                 (Criminal Appeal No. 166 of 2012)
                         JANUARY 17, 2012
B
     [ASOK KUMAR GANGULY AND GYAN SUDHA MISRA,
                       JJ.]

         CODE OF CRIMINAL PROCEDURE, 1973:
c
        ss.190(1)(c), 200, 202, 156(3)- Complaint case - Closure
  report - Filing of chargesheet - Case registered against
  appellant on the basis of the complaint u/ss. 7 and 13(1)(d) rl
  w s. 13(1)(2) of the Prevention of Corruption Act, 1988 - After
D investigation, closure report submitted before the Special
  Judge - Special Judge refused to accept the same and
  directed the police to file chargesheet against the appellant -
  High Cowt quashed the order of the Special Judge granting
  liberty to the Special Judge either to take cognizance ul
E s.190(c) or order for further investigation - Special Judge
  ordered for further investigation and in spite of finding no
  further material to proceed refused to accept the closure
  report - It, however, recorded a direction to obtain sanction for
  prosecution of the appellant and thereafter ordered for re-
  investigation of the complaint for the second time - High Court
F upheld the order of the Special Judge - On appeal, held: On
  receipt of a complaint, the Magistrate is not bound to take
  cognizance but he can without taking cognizance direct
  investigation by the police uls. 156(3) - Once, however, he
  takes cognizance he must examine the complainant and his
G witnesses u/s. 200 - Thereafter, if he requires police
  investigation or judicial enquiry, he must proceed u/s.202 -
  But in any case he cannot direct the police to straightaway
  file charge-sheet - Special Judge instead of following the
  procedure enumerated in the Cr.P.C. rejected the closure
H                               330
VASANTI DUBEY v. STATE OF MADHYA PRADESH 331


report and in the process consistently committed error of law       A
and jurisdiction not only once, but twice - Special Judge was
not competent to proceed in the matter without sanction for
prosecution and hence could not have ordered for
reinvestigation - This amounted to sheer abuse of process of
law resulting into vexatious proceedings and harassment of          s
appellant for more than 10 years without discussing why he
disagreed with the closure report.

    s.200 - Enquiry under - Necessity for - Discussed.

     ss. 190, 200 - A case based on police report and a             C
complaint case - Procedure to be followed by the Magistrate
- Held: While in a case based on Police report, the Court while
taking cognizance will straightaway examine whether a prima
facie case is made out or not and will not enter into the
correctness of the allegation levelled in the F./.R., a complaint   D
case requires an enquiry by the Magistrate u/s.200 if he takes
cognizance of the complaint - In case he refuses to take
cognizance he may either dismiss the complaint or direct the
investigating agency to enter into further investigation - In
case, he does not exercise either of these two options, he will     E
have to proceed with the enquiry himself as envisaged and
enumerated u/s.200 - But, he cannot exercise the option of
directing the Police to submit a charge-sheet as such a course
is clearly not envisaged under the Cr.P. C. and more so in a
complaint case.                                                     F
     The appellant was posted as the Block Development
Officer. She awarded the contract to the Sarpanch of
village Baroda and made payment to him for execution
of the contract. The Sarpanch/contractor filed a complaint
against the appellant in the Lokayukta that he had been             G
paid a sum of Rs.40,000/- only with respect to the contract
awarded to him and when the balance payment of
Rs.10,000/- was demanded by him, an illegal demand for
a sum of Rs.3,000/- was made by the appellant. A case
was registered against the appellant under Sections 7               H
    332
                  -       .
             SUPREME COURT REPORTS
                                  -·
                                               [2012] 1 S.C.R.


A and 13(1)(d) read with Section 13(1)(2) of the Prevention
  of Corruption Act, 1988.

         The Lokayukta investigated the matter. In the course
    of investigation, the complainant resiled from his earlier
    version and stated that a false complaint was made by
8
    him at the instance of someone else whose name he did
    not divulge. After completion of the investigation, the
    Lokayukta directed that a closure report should be filed
    in regard to the complaint lodged against the appellant
C   and appropriate action should be initiated against the
    complainant for lodging a false complaint. Accordingly,
    the closure report was submitted before the Special
    Judge. The Special Judge by order dated 5.8.2002
    refused to accept the same and thereafter directed the
    police to file charge-sheet in the case against the
D   appellant. The State Government filed a criminal revision
    challenging the order of the Special Judge. The Single
    Judge of the High Court allowed the revision petition and
    quashed the order passed by the Special Judge. The
    Lokayukta thereafter again got the complaint examined
E   in the light of the statement of the witnesses and the
    evidence and noticed that there were no materials against
    the appellant to proceed since all payments were already
    received by the complainant prior to lodging of complaint
    specially in view of the subsequent version of the
F   complainant that he had lodged a malicious complaint at
    the instance of a rival of the appellant. On 18.5.2004, the
    Lokayukta once again filed closure report before the
    Special Judge but the Special Judge this time again
    rejected the closure report. The appellant filed a revision
G   petition which was dismissed by the High Court on the
    ground that the order of the Special Judge who had
    refused to accept the closure report for the second time
    did not suffer from any apparent error of jurisdiction.

          The questions which arose for determination. in the
H
VASANTI DUBEY v. STATE OF MADHYA PRADESH 333


instant appeal were whether the Magistrate/Special A.
Judge could straightway direct for submission of charge-
sheet in case he refused to accept final report/closure
report of the police/investigating agency and thereafter
direct the police to submit charge-sheet in case he was
of the opinion that the case was not fit to be closed and B
it required to be proceeded further; and that whether the
Special Judge could refuse to accept closure report and
direct reinvestigation of the case for the second time in
order to proceed further although he was confronted with
the legal impediment indicating lack of sanction for C
 prosecution in the matter.

    Allowing the appeal, the Court

     HELD: 1. Even after the police report indicates that
no case is made out against the accused, the magistrate D
can ignore the same and can take cognizance on
applying his mind independently to the case. But in that
situation, he has two options (i) he may not agree with
the police report and direct an enquiry under Section 202,
Cr.P.C. and after such enquiry take action under Section E
203. He is also entitled to take cognizance under Section
190 Cr.P.C. at once if he disagrees with the adverse
police report but even in this circumstance, he cannot
straightway direct submission of the charge-sheet by the
police. [para 14] [346-D-F]                                F

    2. The order dated 18.5.2004 passed by the Special
Judge straightway directing the police to submit charge-
sheet was quashed by the single Judge of the High Court
and liberty was left open to him either to take cognizance
under Section 190(c), Cr.P.C. or direct the lokayukta G
Police for further investigation. In spite of this order, the
Special Judge did not pass an .order taking cognizance
which he could have done under Section 190(c) of the
Cr.P.C. If the Special Judge considered it legal and
appropriate to proceed in the matter, he could have taken H
    334    SUPREME COURT REPORTS              [2012] 1 S.C.R.

A cognizance upon the complaint and could have
  proceeded further as per the provision under Section 200,
  Cr.P.C. by examining the complainant and if there were
  sufficient ground for proceeding, he could have issued
  process for attendance of the accused. However, such
B process could not have been issued, unless the
  magistrate found that the evidence led before him was
  contradictory or completely untrustworthy. Conversely, if
  he found from such evidence that sufficient ground was
  not there for proceeding i.e. no prima facie case against
c the accused was made out, he had to dismiss the
  complaint, since the complaint did not disclose the
  commission of any offence. But instead of taking any step
  either by issuing the process or dismissing the complaint
  at once, he could have taken immediate step as a third
  alternative to make an enquiry into the truth or falsehood
0
  of the complaint or for an investigation to be made by the
  police for ascertaining whether there was any prima facie
  evidence so as to justify the issue of process. In short,
  on receipt of a complaint, the magistrate is not bound to
  take cognizance but he can without taking cognizance
E direct investigation by the police under Section 156(3),
  Cr.P.C. Once, however, he takes cognizance he must
  examine the complainant and his witnesses under
  Section 200. Thereafter, if he requires police investigation
  or judicial enquiry, he must proceed under Section 202.
F But in any case he cannot direct the Police to
  straightaway file charge-sheet which needs to be
  highlighted as this point is often missed by the
  Magistrates. [para 15] [346-G-H; 347-A-H; 348-A]
G      3. The Special Judge instead of following the
  procedure enumerated in the Cr.P.C. rejected the closure
  report given by the Lokayukta and in the process
  consistently committed error of law and jurisdiction not
  only once, but twice. On the first occasion when the order
H of the Special Judge was quashed and set aside by the
VASANTI DUBEY v. STATE OF MADHYA PRADESH 335

High Court granting liberty to the Special Judge either to        A
take cognizance under Section 190(c) or order for further
investigation as he had committed an error of jurisdiction
by directing the police to straightway submit the charge-
sheet against the accused-petitioner, the Special Judge
did not consider it appropriate to take cognizance but            B
ordered for further investigation by Lokayukta Police and
when the matter was reinvestigated by the Lokayukta
Office, the Special Judge in spite of the finding of the
investigating agency holding that no further material to
 proceed in the matter was found, refused to accept the           c
 closure report and this time it further realized that it could
 not proceed in the matter as there was no sanction for
 prosecution, which the Special Judge obviously noticed
 since he was not in a position to take cognizance directly
 under Sections 7, 13(1)(d) of the Prevention of Corruption       D
 Act in absence of sanction which was a statutory
 requirement. In spite of this, he refused to accept closure
 report but recorded a direction to obtain sanction for
 prosecution of the appellant and thereafter ordered for
 reinvestigation of the complaint for the second time
 creating a peculiar and anomalous situation which is not         E
 in consonance with the provision of the Code of Criminal
 Procedure enumerated under the Chapter relating to
 conditions requisite for initiation of proceedings. [para 16]
 [348-B-H; 349-A]
                                                                  F
     4. The enquiry under Section 200 Cr.P.C. cannot be
given a go-bye if the Magistrate refuses to accept the
closure report submitted by the investigating agency as
this enquiry is legally vital to protect the affected party
from a frivolous complaint and a vexatious prosecution G
in complaint cases. The relevance, legal efficacy and
vi.tality of the enquiry enumerated under Section 200
Cr.P.C., therefore, cannot be undermined, ignored or
underplayed as non compliance of enquiry under Section
200 Cr.P .C. is of vital importance and necessity as it is at H
    336      SUPREME COURT REPORTS               [2012] 1 S.C.R.


A this stage of the enquiry that the conflict between the
  finding arrived at by the investigating agency and enquiry
  by the Magistrate can prima facie justify the filing of the
  complaint and also offer a plank and a stage where the
  justification of the order of cognizance will come to the
B fore. This process of enquiry under Section 200 Cr.P.C.
  is surely not a decorative piece of legislation but is of
  great relevance and value to the complainant as well as
  the accused. [Para 17) [349-B-D]

          5. It is no doubt possible to contend that at the stage
C    of taking cognizance or refusing to take cognizance, only
    prima facie case has to be seen by the Court. But the
    argument would be fit for rejection since it is nothing but
    mixing up two different and distinct nature of cases as
    the principle and procedure applied in a case based on
D   Police report which is registered on the basis of First
    Information Report cannot be allowed to follow the
    procedure in a complaint case. A case based on a
    complaint cannot be allowed to be dealt with and
    proceeded as if it were a case based on Police report.
E   While in a case based on Police report, the Court while
    taking cognizance will straightaway examine whether a
    prima facie case is made out or not and will not enter into
    the correctness of the allegation levelled in the F.l.R., a
    complaint case requires an enquiry by the Magistrate
F   under Section 200 Cr.P.C. if he takes cognizance of the
    complaint. In case he refuses to take cognizance he may
    either dismiss the complaint or direct the investigating
    agency to enter into further investigation. In case, he does
    not exercise either of these two options, he will have to
G   proceed with the enquiry himself as envisaged and
    enumerated under Section 200 Cr.P.C. But, he cannot
    exercise the fourth option of directing the Police to submit
    a charge-sheet as such a course is clearly not envisaged
    under the Cr.P.C. and more so in a complaint case. [para
H   18) [349-E-H; 350-A-B]
VASANTI DUBEY v. STATE OF MADHYA PRADESH 337


     6. The instant matter is one such example and is one A
step ahead wherein the Special Judge was confronted
with yet another legal impediment of lack of sanction for
prosecution giving rise to a peculiar situation when he
noticed and recorded that he could not proceed in the
matter under the Prevention of Corruption Act without B
sanction for prosecution, but in spite of this he directed
to obtain sanction, ordered for reinvestigation and
consequently refused to accept closure report. Since the
Special Judge in the instant matter refused to accept the
closure report dated 18.05.2004 without any enquiry or c
reason why he refused to accept it which was submitted
by the Lokayukta after reinvestigation for which reasons
had been assigned and there was also lack of sanction
for prosecution against the appellant which was
necessary for launching prosecution under the
                                                             0
Prevention of Corruption Act, the Special Judge clearly
committed error of jurisdiction by directing
reinvestigation of the matter practically for the third time
in spite of his noticing that sanction for prosecution was
also lacking, apart from the fact that the Lokayukta after E
reinvestigation had given its report why the matter was
not fit to be proceeded with. The Special Judge in the
wake of all these legal flaws as also the fact that the
Special Judge under the circumstance was not
competent to proceed in the matter without sanction for
prosecution, could not have ordered for reinvestigation F
of the case for the third time by refusing to accept closure
report dated 18.05.2004. This amounts to sheer abuse of
the process oj law resulting into vexatious proceeding
and harassment of the appellant for more than 10 years
without discussing any reason why he disagreed with the G
report of the Lokayukta and consequently the closure
report which would have emerged if the Special Judge
had carefully proceeded in accordance with the
procedure enumerated for initiation of proceeding under
 the Code of Criminal Procedure. The impugned order H
    338      SUPREME COURT REPORTS                  [2012] 1 S.C.R.


A passed by the Special Judge refusing to accept the
  closure report dated 18.05.2004 is set aside and
  consequently the judgment and order of the High Court
  by which the order of the Special Judge was upheld, also
  stands quashed and set aside. [paras 19-22) [350-D-H;
B 351-A-E]

        Abhinandan Jha & Ors. v. Dinesh Mishra (1967) 3 SCR
    668; Ram Naresh Prasad v. State of Jharkhand (2009) 11
    sec 299: 2009 (2) SCR 369; Bains v. State 1980 (4) sec
C 631: 1981 (1) SCR 935 - relied on.

                         Case Law Reference:
          (1967) 3 SCR 668        relied on          Paras 9, 13
          2009 (2) SCR 369        relied on          Para 13
D
          1981 (1) SCR 935        relied on          Para13

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 166 of 2012.

E       From the Judgment & Order dated 24.01.2011 of the High
    Court of Madhya Pradesh at Jabalpur in Criminal Revision No.
    839 of 2004.

        Ravindra Shrivastava, Kunal Verma, Anup Jain, A. Verma
F for the Appellant.

          Vibha Datta Makhija for the Respondent.

          The Judgment of the Court was delivered by

G         GYAN SUDHA MISRA, J. 1. Leave granted.

         2. The appellant herein has challenged the order dated
    24.1.2011 passed by the High Court of Judicature at Jabalpur
    by which the Criminal Revision Petition No. 839/2004 was
    dismissed holding therein that the impugned order passed by
H
 VASANTI DUBEY v. STATE OF MADHYA PRADESH 339
           [GYAN SUDHA MISRA, J.)
the Special Judge (under the Prevention of Corruption Act,        A
1988) District Narsinghpur did not suffer from any apparent
error of jurisdiction.

     3. In the backdrop of the facts and circumstances of the
case to be related hereinafter, the question inter alia which falls 8
for determination by this Court is whether the Magistrate/
Special Judge could straightway direct for submission of
charge-sheet in case he refused to accept final report/closure
report of the police/investigating agency and thereafter direct
the police to submit charge-sheet in case he was of the opinion C
that the case was not fit to be closed and it required to be
proceeded further. The question which also requires
consideration is whether the Special Judge could refuse to
accept closure report and direct reinvestigation of the case for
the second time in order to proceed further although he was D
confronted with the legal impediment indicating lack of sanction
for prosecution in the matter.

       4. However, the question for determination is not a new
  or an extra-ordinary one as the question has cropped up time
  and again before this Court as to what course is left open for .E
  a Magistrate in a situation when the police submits final report
  under Section 173, Cr.P.C. or closure report is submitted by
  any other investigating agency stating that the case is not made
· out on account of lack of evidence or for any other reason.
                                                                   F
      5. But before we proceed to deal with the question
 involved herein, it is essential to state the salient facts and
 circumstances of this matter which has reached upto this Court
 by way of this special leave petition. On perusal of the materials
 on record, it emerges that the appellant- Smt. Vasanti Dubey G
 was posted as the Block Development Officer, Janpad
 Panchayat, Gotegon, Narsinghpur (M.P.) and in that capacity
 was competent to award a contract for constructing concrete
 road in the village Baroda. The contract was awarded to one
 Dinesh Kumar Patel who was the Sarpanch of village Baroda H
    340      SUPREME COURT REPORTS                    [2012] 1 S.C.R.


A   for constructing the concrete road in the village and was initially
    paid a sum of Rs.15,000/- vide cheque No. 101626 dated
    27.2.2001 for execution of the contract. He was further paid a
    sum of Rs.15,000/- vide cheque No.101629 dated 8.5.2001 for
    execution of the contract which was awarded to him. The
B   awardee Sarpanch - Dinesh Kumar Patel was still further paid
    Rs.10,000/-vide cheque No.101635 dated 23.5.2001 and the
    balance payment of Rs. 10,000/-was also finally paid to him
    vide cheque No.319586 dated 1.8.2001 towards full and final
    settlement of the consideration for the above mentioned
c   contract. Admittedly, all the afore-mentioned payments were
    made to the Sarpanch contractor - Dinesh Kumar Patel which
    were due to be paid to him and the cheques were duly
    encashed.

        6. However, the Sarpanch/contractor after several days of
0
   receipt of the final payment, filed a complaint against the
   appellanUBDO - Smt. Vasanti Dubey in the Special Police
   Establishment, Lokayukta Office, Jabalpur stating inter-alia that
  the complainant - Dinesh Kumar Patel had been paid a sum
E of Rs.40,000/- only with respect to the contract awarded to him
   and when the balance payment of Rs.10,000/- was demanded
   by him, the appellant demanded a sum of Rs.3,000/- as
  commission. The complainant's further case is that he although
  paid a sum of Rs.500/-, he felt aggrieved and hence did not
  pay any further amount to the appellant but preferred to lodge
F a complaint on 7.8.2001 in regard to the illegal demand made
  by her. Since the alleged incident was falling within the
  jurisdiction of the Special Police Establishment, Lokayukta
  Office, Bhopal, a case was registered against the appellant on
G the basis of the complaint on the same date i.e. 7.8.2001 under
  Sections 7 and 13(1 )(d) read with Section 13(1 )(2) of the
  Prevention of Corruption Act, 1988.

         7. The Special Police Establishment, Lokayukta Office,
    proceeded to investigate the matter and carried out detailed
H   investigation and also recorded statements of various persons
VASANTI DUBEY v. STATE OF MADHYA PRADESH 341
          [GYAN SUDHA MISRA, J.]
including that of the complainant on 26.3.2002. In course of           A
investigation, the c'.lmplainant resiled from his earlier version
and stC'.ted that he liar made a false complaint at the instance
of someone else w:1ose name he did not divulge. Further
statement of one Shankar Singh was c.lso recorded that the
complainant had paid Rs.2,500/- to the appeilant when she had          B
gone to the bathroom and the money thereafter was recovered
from her. The police also seized various documents from the
office of the BOO located in the office of Janpad Gotegaon
which included the files containing the details of the cheques
 from which payment had been made to the complainant After             C
 completion of the investigation by the Office of Lokayukta who
 was competent to get the matter investigated by the police and
 in view of the statement of the complainant that he made false
 complaint at the instance of someone else as also on account
 of the fact that the entire payment except Rs. 10,000/- had been      o
 made by the appellant - Smt Vasanti Dubey to the complainant
 prior to the date on which the complaint was filed, it was inferred
 that the complaint did not disclose commission of any offence
 and hence the Lokayukta directed that a closure report be filed
 in regard to the complaint lodged against Vasanti Dubey and           E
 appropriate action be initiated against the complainant for
 lodging a false complaint

     8. Accordingly, the closure report was submitted before the
Special Judge, Narsinghpur but by order dated 5.8.2002, the F
Special Judge refused to accept the same. He thus rejected
the closure report and thereafter directed the police to file
charge-sheet in the case against the appellant against which
the State Government filed a criminal revision bearing Criminal
Revision No. 1206/2002 in the High Court challenging the order G
of the Special Judge who refused to accept the closure report
and issued direction for submission of the charge-sheet against
the appellant.

    9. The learned single Judge of the High Court by order
dated 14.1.2003 was pleased to allow the Revision Pe~tion H
    342       SUPREME COURT REPORTS                 [2012] 1 S.C.R.

A    and quashed the order passed by the Special Judge who had
     refused to accept the closure report and had directed
     submission of charge-sheet against the appellant on the ground
    that there is no power expressly or impliedly conferred under
    the Code on a magistrate to call upon the police to submit a
B    charge-sheet when police had sent a report under Section 169
     of the '.::ode stating that there is no case made out for sending
     up an accused for a trial. The learned single Judge took this
    view relying upon the ratio of the authoritative pronouncement
    of this Court delivered in the matter of Abhinandan Jha & Ors.
c   Vs. Dinesh Mishra' wherein it was observed that the functions
     of the magistrate and the police are entirely different and
    though the magistrate may or may not accept the report and
    take action according to law, he cannot impinge upon the
    jurisdiction of the police by compelling them to change their
o   opinion so as to accord with his view. The learned Judge also
    took notice of the observation of the Supreme Court which had
    further been pleased to hold therein that the magistrate
     however, while disagreeing with a final report/closure report of
    a case can take cognizance under Section 190(1 )(c) or order
E   further investigation under Section 156(3) of the Code of
    Criminal Procedure but cannot straightaway direct for
    submission of charge-sheet to the police. Applying the
    aforesaid test as laid down by this Court in the case of
    Abhinandan Jha (supra), the impugned order passed by the
F   Special Judge, Narsinghpur was held to be illegal and without
    jurisdiction and consequently was quashed. However, the
    learned single Judge had added an observation in the judgment
    and order that if the learned Special Judge thinks it fit and
    appropriate to take cognizance, the same can be taken under
G   Section 190(c) of the Code of Criminal Procedure or he may
    direct the Lokayukta police for further investigation. As already
    stated the revision accordingly was allowed and the impugned
    order of the Special Judge dated 5.8.2002 was quashed.

H   1.   AIR 1968 SC 117 = (1967) 3 SCR 668.
VASANTI DUBEY v. STATE OF MADHYA PRADESH 343
          [GYAN SUDHA MISRA, J.]
      10. The Special Police Establishment, Lokayukta Office, A
Jabalpur, thereafter again got the complaint examined in the
light of the statement of the witnesses and the evidence and
noticed that there were no materials against the a·ppellant to
proceed as she had made all payments from 27.2.2001 up to
2.8.2001 yet a complaint dated 7.8.2001 was subsequently filed B
by the complainant - Dinesh Kumar Patel alleging that the
appellant had demanded commission/bribe of Rs.2,500/- from
the complainant in order to clear his bills which complaint was
found to be untrustworthy and hence unacceptable since all
payments had already been received by the complainant prior c
to the lodgement of complaint specially in view of the
subsequent version of the complainant that he had lodged a
malicious complaint at the instance of a rival of the appellant.

     11. The Special Police Establishment, Lokayukta Office, D
therefore, once again filed an application/closure report before
the Special Judge, Narsinghpur but the Special Judge,
Narsinghpur this time again rejected the closure report by order
dated 18.5.2004 observing therein that it had been clarified by
order dated 5.8.2002 that there is sufficient basis to take E
cognizance against the appellant - Smt. Vasanti Dubey and
there is no change in the circumstance on the basis of which
closure report can be accepted clearly overlooking that the High
Court had already quashed the order dated 5.8.2002 passed
by the Special Judge as it had held that the Special Judge had F
no jurisdiction to direct the police to submit charge sheet in
case he refuses to accept closure report although he could take
cognizance under Section 190(C) of the Cr.P.C. or direct further
investigation of the case. In pursuance of this, further
investigation was done by the Special Police Establishment, G
Lokayukta Office and closure report was submitted after
completion of reinvestigation. On this occasion, when the
Special Judge refused to accept closure report, it was his
statutory and legal duty to either pass a fresh order taking
cognizance if he refused to dismiss the complaint and proceed H
    344       SUPREME COURT REPORTS                  [2012] 1 S.C.R.


A with the enquiry under Section 200 Cr.P.C. by examining the
  complainant after which he had to record reasons why he
  disagreed with the closure report. But the Special Judge did
   not discharge this legal obligation and simply in a mechanical
  manner directed the investigating agency to obtain sanction to
B prosecute. the appellant despite the fact that the investigating
  agency had consistently reported that sufficient evidence was
  not there to justify prosecution of the appellant. At this stage, if
  the Special Judge found that there were sufficient ground to
  proceed, it could have taken cognizance but having been
c confronted with the legal impediment that it could not proceed
  without sanction for prosecution, the Special Judge directed to
  reinvestigate the matter once again for the second time and
  also directed the investigating agency to obtain sanction for
  prosecution.
D
        12. Hence, the appellant assailed the order of the Special
  Judge dated 18.5.2004 by filing a criminal revision petition No.
  839/2004 but the High Court on this occasion dismissed the
  revision petition and was pleased to hold that the order of the
E Special Judge who had refused to accept the closure report
  for the second time did not suffer from any apparent error of
  jurisdiction. The learned single Judge while dismissing the
  revision petition observed that it shall still be open to the
  appellant to raise all such pleas as are available to her under
F the law in case charge-sheet is filed against her.

       13. However, the learned single Judge completely missed
  the ratio laid down in the case of Abhinandan Jha (supra) which
  had been relied upon by the learned single Judge of the High
  Court on an earlier occasion also when the order of the Special
G Judge refusing to accept closure report and directing
  submission of charge-sheet was quashed and the entire legal
  position was summed up in unequivocal terms as follows:-

          "There is no power, expressly or impliedly conferred under
H         the Code, on a Magistrate to call upon the police to submit
VASANTI DUBr=Y v. STATE OF MADHYA PRADESH 345
          [GYAN SUDHA MISRA, J.]

     a charge-sheet, when they have sent a report under               A
     Section 169 of the Code, that there is no case made out
     for sending up an accused for trial. The functions of the
     magistrate and the police are entirely different, and though,
     the Magistrate may or may not accept the report, and take
     suitable action according to law, he cannot impinge upon         B
     the jurisdiction of the police, by compelling them to change
     their opinion so as to accord with his view."

This position has been further reiterated and reinforced in a
recent judgment of this Court delivered in the matter of Ram          C
Naresh Prasad vs. State of Jharkhand2 , wherein it has been
held that when the police submitted a final report of investigation
of the case which in colloquial term is called closure report, the
magistrate cannot direct the police to submit the charge-sheet.
However, on the basis of the material in the charge-sheet, he
may take cognizance or direct further investigation. In fact, this    D
position is clearly laid down under Section 190 read with
Section 156 of the Cr.P.C. itself and the legal position has been
time and again clarified by this Court in several
pronouncements viz. in the matter of Bains vs. State3 , wherein
their lordships have summarised the position as follows:-             E

      "1. When a Magistrate receives a complaint, he may,
      instead of taking cognizance at once under Section
      190(1)(a) direct a police investigation under Section 156(3)
      ante;                                                           r:
      2. Where, after completion of the investigation, the police
      sends an adverse report under Section 173(1), the
      Magistrate may take any of the following steps :

       "i.   If he agrees with police report, and finds that there    G
             is no sufficient ground for ;:iroceeding further, he
             may drop th~ proceeding and dismiss the
             complaint.
2.   12009) 11 sec 299.
3.   AIR 1980 SC 1833 = 1980 (4) sec 631.
                                                                      H
    346          SUPREME COURT REPORTS               [2012] 1 S.C.R.


A         ii.      He may not agree with the police report and may
                   take cognizance of the offence on the basis of the
                   original complaint, under Section 190(1 )(a) and
                   proceed to examine the complainant under Section
                   200.
B
          iii.     Even if he disagrees with the police report, he may
                   either take cognizance at once upon the complaint,
                   direct an enquiry under Section 202 and after such
                   enquiry take action under Section 203. However,
                   when the police submits a final report or closure
c                  report in regard to a case which has been lodged
                   by the informant or complainant, the magistrate
                   cannot direct the police to straightway submit the
                   charge-sheet as was the view expressed in the
                   matter of Abhinandan Jha (supra) which was relied
D                  upon in the matter of Ram Naresh Prasad (supra)."

       14. Thus it is undoubtedly true that even after the police
  report indicates that no case is made out against the accused,
  the magistrate can ignore the same and can take cognizance
E on applying his mind independently to the case. But in that
  situation, he has two options (i) he may not agree with the police
  report and direct an enquiry under Section 202 and after such
  enquiry take action under Section 203. He is also entitled to
  take cognizance under Section 190 Cr.P.C. at once if he
F disagrees with the adverse police report but even in this
  circumstance, he cannot straightway direct submission of the
  charge-sheet by the police.

        15. In the light of the aforesaid legal position, when we
G examined the merit of the instant matter, we noticed that the
  order dated 18.5.2004 passed earlier by the Special Judge
  straightway directing the police to submit charge-sheet was
  quashed by the learned single Judge of the High Court and
  liberty was left open to him either to take cognizance under
H Section 190(c) of the Cr.P.C. or direct the Lokayukta Police
VASANTI DUBEY v. STATE OF MADHYA PRADESH 347
          [GYAN SUDHA MISRA, J.]
for further investigation. In spite of this order, tha Special Judge    A
did not pass an order taking cognizance which he could have
done under Section 190(c) of the Cr.P.C. However, he chose
to direct office of the Lokayukta to enter into further investigation
which after further investigation assigned reasons given out
hereinbefore, stating that in view of the stata,,ent of the             B
complainant that he had complained at the instance of a rival
of the accused as also the fact that entire payment.had already
been made by the complainant prior to the lodgement of
complaint, no case was made out against the complainant. In
spite of this, if the Special Judge considered it legal and             c
appropriate to proceed in the matter, he could have taken
cognizance upon the complaint and could have proceeded
further as per the provision under Section 200 of the Cr.P.C.
by examining the complainant and if there were sufficient
g~ound for proceeding, he could have issued process for                 D
attendance of the accused. However, such process could not
have been issued, unless the magistrate found that the
evidence led before him was contradictory or completely
untrustworthy. Conversely, if he found from such evidence that
sufficient ground was not there for proceeding i.e. no prima            E
facie case against the accused was made out, he had to
dismiss the complaint, since the complaint did not disclose the
commission of any offence. But instead of taking any step either
by issuing the process or dismissing the complaint at once, he
could have taken immediate step as a third alternative to make          F
an enquiry into the truth or falsehood of the complaint or for an
rnvestigation to be made by the police for ascertaining whether
there was any prima facie evidence so as to justify the issue
of process. In short, on receipt of a complaint, the magistrate
is not bound to take cognizance but he can without taking               G
cognizance direct investigation by the police. under Section
 156(3) of Cr.P.C. Once, however, he takes cognizance he must
examine the complainant and his witnesses under Section 200.
Thereafter, if he requires police investigation or judicial enquiry,
he must proceed under Section 202. But in any case he cannot            H
    348      SUPREME COURT REPORTS                  [2012) 1 S.C.R.


A direct the Police to straightaway file charge-sheet which needs
  to be highlighted as this point is often missed by the
  Magistrates in spite of a series of decisions of this Court
  including the case of Abf;inanrfan Jha (supra) and Ram Naresh
  Prasad (supra) referred to hereinbefore.
B
          16. When the facts of the instant matter is further tested
    on the anvil of the aforesaid legal position, we find that the
    Special Judge instead of following the procedure enumerated
    in the Cr.P.C. appeared to insist on rejecting the closure report
C   given by the Special Police Establishment, Lokayukta Office
    and in the process consistently committed error of law and
    jurisdiction not only once, but twice. On the first occasion when
    the order of the Special Judge was quashed and set aside by
    the High Court granting liberty to the Special Judge either to
    take cognizance under Section 190(c) or order for further
0
    investigation as he had committed an error of jurisdiction by
    directing the police to straightway submit the charge-sheet
    against the accused-petitioner, the Special Judge did not
    consider it appropriate to take cognizance but ordered for
    further investigation by Lokayukta Police and when the matter
E   was reinvestigated by the Special Police Establishment of the
    Lokayukta Office, the Special Judge in spite of the finding of
    the investigating agency holding that no further material to
    proceed in the matter was found, refused to accept the closure
F   report and this time it further realized that it could not proceed
    in the matter as there was no sanction for prosecution, which
    the Special Judge obviously noticed since he was not in a
    position to take· cognizance directly under Sections 7, 13(1 )(d)
    of the Prevention of Corruption Act in absence of sanction which
G   was a statutory requirement. In spite of this, he refused to
    accept closure report but recorded a direction to obtain
    sanction for prosecution of the appellant and thereafter ordered
    for reinvestigation of the complaint for the second time creating
    a peculiar and anomalous situation which is not in consonance
    with the provision of the Code of Criminal Procedure
H
VASANTI DUBEY v. STATE OF MADHYA PRADESH 349
          [GYAN SUDHA MISRA, J.]
enumerated under the Chapter relating to conditions requisite A
for initiation of proceedings.
      17. It may be worthwhile to highlight at this stage that the
enquiry under Section 200 Cr.P.C. cannot be given a go-bye
if the Magistrate refuses to accept the closure report submitted B
by the investigating agency as this enquiry is legally vital to
protect the affected party from a frivolous complaint and a
vexatious prosecution in complaint cases. The relevance, legal
efficacy and vitality of the enquiry enumerated under Section
200 Cr.P.C., therefore, cannot be undermined, ignored or c
underplayed as non compliance of enquiry under Section 200
Cr.P.C. is of vital importance and necessity as it is at this stage
of the enquiry that the conflict between the finding arrived at by
the investigating agency and enquiry by the Magistrate can
prima facie justify the filing of the complaint and also offer a D
plank and a stage where the justification of the order of
cognizance will come to the fore. This process of enquiry under
 Section 200 Cr.P.C. is surely not a decorative piece of
 legislation but is of great relevance and value to the
 complainant as well as the accused.                                E
      18. It is no doubt possible to contend that at the stage of
taking cognizance or refusing to take cognizance, only prima
facie case has to be seen by the Court. But the argument would
be fit for rejection since it is nothing but mixing up two different
and distinct nature of cases as the principle and procedure F
applied in a ::ase based on Police report which is registered
on the basis of First Information Report cannot be allowed to
follow the procedure in a complaint case. A case based on a
complaint cannot be allowed to be dealt with and proceeded
as if it were a case based on Police report. While in a case G
based on Police report, the Court while taking cognizance will
straightaway examine whether a prima facie case is made out
or not and will not enter into the correctness of the allegation
levelled in the F.1.R., a complaint case requires an enquiry by
the Magistrate under Section 200 Cr.P.C. if he takes H
    350      SUPREME COURT REPORTS                   [2012] 1 S.C.R.

A cognizance of the complaint. In case he refuses to take
  cognizance he may either dismiss the complaint or direct the
  investigating agency to enter into further investigation. In case,
  he does not exercise either of these two options, he will have
  to proceed with the enquiry himself as envisaged and
B enumerated under Section 200 Cr.P.C. But, he cannot exercise
  the fourth option of directing the Police to submit a charge-sheet
  as such a course is clearly not envisaged under the Cr.P.C.
  and more so in a complaint case. As already stated, this
  position can be clearly deduced from the catena of decisions
C including those referred to hereinbefore but needs to be
  reinstated as time and again this magisterial error reaches up
  to this Court for rectification by judicial intervention.

       19. The instant matter is one such example and is one step
0 ahead wherein the Special Judge was confronted with yet
  another legal impediment of lack of sanction for prosecution
  giving rise to a peculiar situation when he noticed and recorde1
  that he could not proceed in the matter under the Prevention c'
  Corruption Act without sanction for prosecution, but in spite of
E this he directed to obtain sanction, ordered for reinvestigation
  and consequently refused to accept closure report.

       20. Since the Special Judge in the instant matter refused
  to accept the closure report dated 18.05.2004 without any
  enquiry or reason why he refused to accept it which was
F submitted by the Special Police Establishment, Lokayukta
  Office, Jabalpur after reinvestigation for which reasons had
  been assigned and there was also lack of sanction for
  prosecution against the appellant which was necessary for
  launching prosecution under the Prevention of Corruption Act,
G we deem it just and appropriate to hold that the Special Judge
  clearly committed error of jurisdiction by directing
  reinvestigation of the matter practically for the third time in spite
  of his noticing that sanction for prosecution was also lacking,
  apart from the fact that the Special Police Establishment,
H
VASANTI DUBEY v. STATE OF MADHYA PRADESH 351
          [GYAN SUDHA MISRA, J.]
Lokayukta Office, after reinvestigation had given its report why A
the matter was not fit to be proceeded with.

     21. We are therefore of the considered view that the
Special Judge in the wake of all these legal flaws as also the
fact that the Special Judge under the circumstance was not 8
competent to proceed in the matter without sanction for
prosecution, could not have ordered for reinvestigation of the
case for the third time by refusing to accept closure report dated
 18.05.2004. This amounts to sheer abuse of the process of law
 resulting into vexatious proceeding and harassment of the C
appellant for more than 10 years without discussing any reason
why he disagreed with the report of the Lokayukta and
 consequently the closure report which would have emerged if
the Special Judge had carefully proceeded in accordance with
the procedure enumerated for initiation of proceeding under the 0
 Code of Criminal Procedure.
      22. In view of the aforesaid discussion based on the
existing facts and circumstances, we deem it just and
appropriate to set aside the imflugned order passed by the
Special Judge refusing to accept the closure report dated E
18.05.2004 and consequently the judgment and order of the
High Court by which the order of the Special Judge was upheld,
also stands quashed and set aside. Accordingly, the appeal
is allowed.
                                                                 F
D.G.                                          Appeal allowed.