C. L. PANGARKAR J. ORAL JUDGMENT: This is a writ petition under Article 226 and 227 of the Constitution of India. 2. The facts giving rise to this petition are as under: Petitioner runs an Autorikshaw and earns his livelihood. On 21.02.05 the petitioner had undertaken to transport a Merry-go-round from Yavatmal to Chandur Railway in his autorikshaw. While he was going back from Chandur Railway he found kept, for sale the plastic cans by the side of the road. The petitioner thought that he should purchase them in order to store water at his house. He, therefore, purchased the plastic cans. They were smelling of kerosene. One P. S. I. Patil accosted him on his way to Yavatmal and charged him that he was illegally selling kerosene. The cans were smelling of kerosene. P. S. I. Patil had given a threat to him that he would implicate him in a case under Essential Commodities Act and made a demand of money. Respondent No.4 who is also a Police Officer, proposed to the petitioner that if he pays some amount the matter can be settled. Petitioner, therefore, asked respondent No.4 to talk with P. S. I. Patil. He informed that petitioner will have to pay Rs. 50,000/-. The petitioner there after met P. S. I. Patil personally and requested him to reduce the amount. P. S. I. Patil agreed to take Rs.25,000/-. The petitioner did not possess the entire amount. An amount of Rs.4300/- which was with him was seized by P. S. I. Patil. He was there after allowed to go home along with respondent No.4. The petitioner found in his home a sum of Rs. 11,000/-. The same was given to respondent No.4 but he refused to accept that amount of Rs. 11,000/- as he was asked to bring entire amount of Rs. 25,000/-. The petitioner proposed that he will handover the gold ring weighing one tola in lieu of the cash. Respondent No.4, therefore, there after took the petitioner to P. S. I. Patil. It is stated that there after the matter was reported to the Anti Corruption Bureau and a trap was laid and P. S. I. Patil was caught raid handed. A charge sheet has been filed against P. S. I. Patil but no charge sheet has been filed against respondent No. 4. It is stated that there after the matter was reported to the Anti Corruption Bureau and a trap was laid and P. S. I. Patil was caught raid handed. A charge sheet has been filed against P. S. I. Patil but no charge sheet has been filed against respondent No. 4. Respondent No.3 had filed an application before the Special Judge under Section 169 Criminal Procedure Code. Learned Special Judge rejected the application saying that the respondent no.4 was not in custody and therefore there was no necessity to pass any order of discharge under Section 169. He found that application was not tenable. Being aggrieved by that order this Writ petition has been filed by the complainant. 3. I have heard the learned counsel for the petitioner and the respondents. 4. Non applicant No. 3 had filed an application under Section 169 before the Special Judge. The Special Judge has passed an order that non applicant No.4 has not been forwarded along with report and as he is already released on bail the application is not tenable and hence he rejected it. 5. Non applicant No.3 after completion of investigation had forwarded charge sheet under Section 173 of Criminal Procedure Code to the Special Judge only against P. S. I. Patil and the accused No.4 was not shown as accused in the case. Obviously the Investigating Agency did not find sufficient evidence against respondent No.4 and he was not sent for trial. On the other hand application under Section 169 was filed for his discharge. Learned Sessions Judge as observed earlier rejected the application saying that since the non applicant is not sent for trial with report under Section 173 and he is already released on bail the application for discharge was not tenable. The scheme of the Code is that if the Investigating Officer finds that there is no evidence against particular accused he has to simply release him after taking a bond from him under Section 169 Criminal Procedure Code. In fact Investigating Officer is not even supposed to apply to a Magistrate under Section 169 for discharge. The word used in Section 169 is .release., due to the fact that there is no sufficient evidence to proceed against the accused. The Investigating Officer is to obtain a bond with or without surety at the time of release. In fact Investigating Officer is not even supposed to apply to a Magistrate under Section 169 for discharge. The word used in Section 169 is .release., due to the fact that there is no sufficient evidence to proceed against the accused. The Investigating Officer is to obtain a bond with or without surety at the time of release. Section 170 of Criminal Procedure Code says that if after completion of investigation it is found that there is sufficient evidence the Investigating Officer has to forward the report and the accused under under Section 173 of the Criminal Procedure Code to the Magistrate. In this case the respondent No.4 was not forwarded under Section 170 and 173 of the Criminal Procedure Code at all to the Court. 6. Shri Bhalerao learned counsel for the petitioner contended that before discharging the accused No.4 the Special Judge should have given the applicant/petitioner a notice and he should have been heard. He relied on a decision of Supreme Court reported in Gangadhar Janardhan Mhatre Vs. State of Maharashtra And Others (2004)7 Supreme Court Cases 768. The ratio of the case is that, before a Magistrate decides to take cognizance and drop the proceedings after filing the charge sheet the complainant should be heard. Here in the case at hand the accused No. 4 has not been forwarded to the Court for trial at all. There is, therefore, no question of dropping the proceedings against him or refusing to take cognizance against him by the Court. The notice would be necessary only when the Magistrate, though report is sent under Section 173 against particular accused does not deem it proper to take cognizance against him. In this case the evidence was not found sufficient against the respondent No. 4 and and he is released under Section 169. He is not, therefore, an accused who is forwarded to the Court for trial. The case cited supra, therefore, has no bearing on the case at hand. If at all the complainant/petitioner wants that respondent No.4 should be prosecuted he is free to file Criminal Complaint Case against him. Order as passed by the Sessions Judge cannot be faulted with. Petition is, therefore, dismissed.