A Magistrate has the power to take cognizance under Section 190(1)(b) Cr.P.C., 1973, even if the police report is negative, and is not bound by the police's conclusion.

JUDGMENT

Pankaj Bhandari, J. - Petitioner has preferred this revision petition aggrieved by order dated 05.02.2018 passed by the Special Judge, Anti Corruption Cases, Kota, whereby the Court has taken cognizance against the petitioner under Section 7, 13(1)(d) R/W Section 13(2) of the Anti Corruption Act.

2. It is contended by counsel for the petitioner that the police submitted a negative final report. The Court below issued a notice to the complainant. The complainant moved a protest petition. The Court below did not pass any order on the protest petition and on its own motion took cognizance against the petitioner and has directed the police to submit the charge-sheet. It is contended that the procedure adopted by the Court below is not in conformity with the provisions of the Code of Criminal Procedure.

3. As per section 190 of Cr.P.C., 1973 a Magistrate can take cognizance upon receiving a complaint of facts which constitute such offence or upon a police report of such facts or upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

4. It is argued that none of he provisions of Section 190 Cr.P.C., 1973 are applicable and the Court has erred in taking cognizance without examining the complainant who had filed a protest petition. It is also contended that when the police has submitted a negative final report, there was no justification for directing the police to submit the charge-sheet. It is also argued that there was no spectographic examination of voice. Hence, the report cannot be read against the petitioner. The amount was recovered from the pad and was not recovered from the person of the petitioner. The transcript is also not clear.

5. It is also contended that Trap Laying Officer, Neeraj Jain-Assistant Registrar and Gaurd Manak Ram have not given any evidence against the petitioner. It is also contended that a Spectography examination is required to be conducted and the conclusion is to be drawn only on the basis of auditory examination and spectography examination. Only phonetic and linguistic feature can be examined on the basis of auditory examination. It is argued that spectography examination is thus mandatory to come to the conclusion with regard to the matching of voice. With regard to voice prints, it is argued that voice prints experts have to compare spectography examination to arrive at the conclusion. Reliance in this regard has been placed on " Ritesh Sinha vs. State of Uttar Pradesh and Anr." AIR 2013 Supreme Court 1132 .

6. It is argued that the report is not conclusive but the same was made basis for taking cognizance. Counsel for the petitioner has placed reliance on " H.S. Bains Director Small Saving-Cum-Deputy Secretary, Finan. vs. State (Union Territory of Chandigarh)." 1980 AIR 1883 , wherein, the Court has dealt with the provision of Section 190 Cr.P.C., 1973 Reliance has also been placed on " Messrs India Carat Pvt. Ltd. vs. State of Karnataka and Another" 1989 (2) Crimes 483 and judgment of Allahabad High Court in "Hari Ram vs. State of U.P. and Anr." Criminal Revision No.695/2001 decided on 06.05.2016.

7. Learned Counsel appearing for the complainant has opposed the revision petition. His contention is that the petitioner has demanded Rs. 1,00,000/- from the complainant which is evident from perusal of the transcript. Petitioner was Deputy Registrar of the University. The University has also charge-sheeted the petitioner for wiithholding one hundred sixty eight files of different institutions. It is also contended that change in colour of water on washing hands of the petitioner, points out towards him having accepted the money.

8. It is further contended that Section 190 Cr.P.C., 1973 does not bar a Magistrate from taking cognizance, even if a negative final report is submitted by the police. It is also contended that the Court below has considered the entire aspects of the matter and has gone through the negat