M/S. SUPREME BHIWANDI WADA MANOR INFRASTRUCTURE PVT. LTD. versus THE STATE OF MAHARASHTRA & ANR. on 26 July 2021

1. This batch of four appeals involves similar issues and wereDheard together. The first two appeals arise out of an order dated 18December 2017 of a Single Judge of the High Court of Judicature atBombay by which two anticipatory bail applications under Section 438 ofthe Code of Criminal Procedure 1973 (“CrPC”) were allowed.

2. The details of these applications are:

E(i)Anticipatory Bail (Application) No 1971 of 2016 moved byNilesh Dayanand Chumble; and

(ii) Anticipatory Bail (Application) No 85 of 2017 moved byMayur Jayantilal Anam.

3. The order passed by the High Court on the above applicationsFunder Section 438 of the CrPC has been questioned by the complainantin the appeals arising out of the first two Special Leave Petitions[1] underArticle 136 of the Constitution. In the remaining two appeals (arising outof Special Leave Petitions[2])the Single Judge of the High Court has on 18December 2017 followed the order granting anticipatory bail in the twoapplications noted above and disposed of the complainant’s challenge toGthe grant of anticipatory bail by the Sessions Court to (i) Diwakar WamanPatil; and (ii) Hemant Haribhau Sonawane.

4. The persons accused to whom anticipatory bail has been grantedin the first two appeals are the first accused, Mayur Jayantilal Anam 1 SLP (Crl) No 3155 of 2018; and SLP (Crl) No 3156 of 2018H2 SLP (Crl) No 2617 of 2018; and SLP (Crl) No 2628 of 2018

(“A1”),and the fourth accused, Nilesh Dayanand Chumble (“A4”). Inthe two companion appeals, the grant of anticipatory bail by the SessionsCourt to the second accused, Hemant Haribhau Sonawane, (“A2”)andthe third accused, Diwakar Waman Patil (“A3”) was in issue.

5. The appellant is a company incorporated under the CompaniesAct 1956 and engages in infrastructure projects. The appellant was awardeda contract for constructing a road which has been described as:

“bypass work of Vishwabharati Phata – Bhinar-Vadapa Junction(km. 0/000 to 7/900, total length 7.90 km), Bhiwandi Taluka, Dist.Thane.”

The four accused who are impleaded as the second respondentsto these appeals were engaged by the appellant as its employees. Interms of the statement of the complainant under Section 161 of the CrPC,A1 was employed in the capacity of a General Manager.A2, A3 and A4were employed as Liaison Officer, Liaison Assistant and Senior LiaisoningOfficer, respectively. It has been alleged that their responsibilities includedidentifying farmers on the basis of a list provided by governmentalauthorities and to disburse compensation to them after verifying theauthenticity of the claims.

6. The appellant filed a complaint with the Powai Police Station,Mumbai following the discovery of an alleged fraud. Thereafter, it filed acomplaint before the Court of the Magistrate at Andheri in Mumbai.

7. On 11 May 2016, the Metropolitan Magistrate at the 66th Court,Andheri, Mumbai passed an order under Section 156(3) of the CrPCdirecting the police to investigate into the complaint. For convenience ofreference, the order of the Magistrate is extracted below:

“Perused complaint filed by complainant viz. M/s SupremeBhiwandi Wada Manor Infrastructure Pvt. Ltd. through itsauthorized signatory Mr. Uday Prabhakar Joshi, supported withhis affidavit. Heard Ld. Advocate Mr. K.K. Shukla for complainant.Perusal of documents placed on record. It is alleged by complainantthat accused persons in collusion with each other prepared falsedocuments in respect of the land situated at Four Lanning of Wada-Bhiwandi State Highway No. 35, State Highway Manor-Wada No34 and Bhiunar Wada Junction work of construction of road handedover to complainant. It is further alleged by complainant that, A

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Aaccused Nos 1 and 2 in collusion with accusd Nos 3 to 12 inducedcomplainant to part with and pay amounts to accused Nos 3 to 9,showing them to be land owners. It is further alleged complainantthat, accused have prepared fraudulent report and used a forgeddocuments, as a genuine. Considering the nature of allegations, insupport of the alleged offences, which is cognizable in nature,Binvestigation by…required in this matter. Accordingly, I passedfollowing order.

ORDER

1Present matter be sent for investigation to Powai policeCstation.

2Concern police official, is hereby directed to investigate thematter under Section 156(3) of Criminal Procedure Code,and filed the report at the earliest.

3There is only prayer to send matter for investigation hence itDis treated as miscellaneous application and accordingly, it isfinally disposed off. “

8. Following the order of the Magistrate, a First Information Reportbeing FIR No 2 of 2016 was registered on 24 May 2016 with the PowaiPolice Station for alleged offences under Sections 418,419,420, 405,E467,468, 471,474, 120 B read with Section 34 of the Indian Penal Code.

9. The substance of the allegation is that the accused did not handover the cheques due to the farmers for their lands taken over for theproject and got the cheques released in the names of other persons therebydefrauding the company and misappropriating its fund. It has been allegedFthat in 2015, the company had handed over the work of disbursing theland acquisition amounts due to the affected farmer to five employeesincluding the respondent-accused who are engaged on the job of the roadconstruction project between Wada and Wadape Junction. It has beenalleged that they made “66 fake and bogus tenants”, without attachingnecessary papers of land acquisition with an intention to obtain personalGgain, resulting in a fraud of Rs 87,76,755. Details of the amounts whichwere allegedly misappropriated were furnished together with the complaint.Moreover, it was alleged that the accused had with the help of twelvefarmers prepared 7/12 extracts, measurement sheets and power of attorneydocuments and had withdrawn an amount of Rs 68 lacs (approx.)byHcheque for the purpose of giving compensation to the farmers.However,

it is alleged that the amount was misappropriated. Furthermore, it hasbeen alleged that between 2014 and 2015, the accused had fabricatedcertificates of the Gram Panchayat Vadpe, Bhinar, Gorsai, Nimbavaliand Kawadin respect of village lands and forest land showing the namesof nine persons and deposited an amount of around Rs 1.57 crores againsttheir names fraudulently. It has been further alleged that the accused inthe name of 10 fake occupants withdrew an amount of Rs. 1,84,30,400by forging and fabricating documents for their personal gain. There areallegations in the complaint to the effect that the accused were also involvedin a fraud of around Rs 5.28 crores by fabricating documents pertainingto the occupants of lands and making nominal payments to villagers.

10. Two of the accused named in the FIR moved the SessionsCourt for the grant of anticipatory bail. By its orders dated 13 February2017 and 16 February 2017, the Sessions Court granted anticipatory bailto A2 and A3. Applications for anticipatory bail were also moved beforethe Bombay High Court by A1 and A4.

11. On 24 January 2017, the High Court granted interim protectionagainst arrest to A1. The High Court granted interim protection fromarrest to A4 on 16 February 2017. The grant of anticipatory bail to A2and A3 also became a subject matter of a similar challenge by thecomplainant before the High Court. Eventually, by its order dated 18December 2017, the High Court granted anticipatory bail toA1 and A4. Inconsequence it disposed of the petitions questioning the grant of anticipatorybail by the Sessions Court toA3 and A4.

12. The High Court has justified the grant of anticipatory bail in abrief order of two paragraphs which it would be convenient to extract atthe present stage. The High Court held:

“2. The record indicates that the complainant Mr. Uday Joshi hasfiled a complaint bearing C.C.No.506/SW/2015 in the Court ofMetropolitan Magistrates, 66'h Court at Andheri, Mumbai and anOrder under Section 153(3) has been passed by the concernedCourt. In pursuance of the said Order, the present Crime No.02/2016 has been registered by the Powai Police Station. The policeare seeking custody of the applicants in the said crime, which isregistered in pursuance of the Order passed under Section 156(3)of Cr.P.C. as noted earlier. The record indicates that, the complaintfiled by first informant was supported with 1 is affidavit elated06.02.2016 and the mandate of law as contemplated under Section AB

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A200 of Cr.P.C. i.e. the said complainant has not been examined onoath by the concernedMagistrate.

3. The basic tenet of law as contemplated under Section 200 ofCr.P.C.has not been complied with, it raises a serious doubt aboutthe validity ofissuance of the said Order passed under Section 156(3)Bof the Cr.P.C. bythe concerned Magistrate. Apart from the saidfact, as has been held by theHon'ble Supreme Court in the case ofSiddharam Satlingappa Mhetre Vs. State of Maharashtra &Ors.,reported in AIR 2011 Supreme Court 312, andinparticular inparagraph 112(v) of the said decision, this Court is of theview that,the accusations have been made against the applicants only withtheCobject of injuring or humiliating the applicants •by arresting them.”

The complainant is in appeal before this Court.

13. Notice was issued initially on 28 March 2018. In pursuance ofthe order issuing notice, both the State of Maharashtra and the respondentD– accused have entered appearance. We have heard counsel.

14. On behalf of the appellants, it has been urged by Mr DineshTiwari and Ms Jaikriti S Jadeja, learned Counsel that

(i) The High Court while grantinganticipatory bail failed to evenprima facie notice the nature and gravity of the allegationsEagainst the accused;

(ii) The Magistrate passed an order under Section 156(3) of theCrPC directing the complaint to be investigated and accordinglyFIR No 2 of 2016 was registered by the Powai Police Stationon 24 May 2016; F

(iii) The order of the High Court proceeds on the basis that themandate of Section 200 of the CrPC has not be compliedwith by the Magistrate since the complainant was not examinedon oath;

(iv) The High Court has, in taking this view, failed to noticeGjudgments of this Court which have clarified the legal positionthat the Magistrate is justified in ordering an investigation underSection 156(3) before taking cognizance of a complaint underSection 200 and the nature of the enquiry by the police whichthe Magistrate may order under Section 202 is distinct fromHthe power under Section156(3);

(v) In any event there was no challengeto the order passed bythe Magistrate ordering an investigation under Section 156(3)and hence there was no occasion for the High Court to doubtits validity; and A

(vi) The High Court has even waived the condition imposed inthe interim order to attend the concerned Police Station as aBresult of which the investigation has been thwarted.

15. On the other hand, Mr R R Deshpande, learned Counselappearing on behalf of the accused submitted that

(i) The accused were protected from arrest by an interim orderdated 16 February 2017and 24 January 2017 and they werecalled for investigation on several occasions; C

(ii) The accused having co-operated in the investigation, therewould be no justification to interfere with the grant ofanticipatory bail in pursuance of the orders which have beenpassed about three and a half years ago; and D

(iii) The view which has been taken by the High Court on theinterpretation of the provisions of Section 202 is correct, havingregard to the proviso to sub-Section (1) of Section 202 underwhich an enquiry by the police can be ordered only after thecomplainant’s statement has been recorded on oath underSection 200 of the CrPC.

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These submissions have been adopted in the other cases as well.

16. The primary basis on which the High Court has allowed theapplications under Section 438 is that the complaint filed by the firstinformant was supportedby an affidavit dated 6 February 2016. However,the High Court held that the mandate of Section 200 of the CrPC ofexamining the complainant on oath has not been fulfilled by the Magistrate.On this basis, the High Court held that this raises a serious doubt aboutthe validity of the order which has been passed under Section 156(3).

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17. There is a serious error in the view of the Single Judge. Firstand foremost, the Magistrate’s order under Section 156(3) was not underchallenge before the High Court and has attained finality. The High Courtwas in error in raising a doubt aboutthe correctness of the order undersection 156(3) passed by the Metropolitan Magistrate on 11 May 2016 inthe course of considering the complaint filed by the complainant. Secondly, H

Athe position in law as set out in the order of the Single Judge does notaccord with the principles which have been consistently enunciated in thedecisions of this Court specifically in the context of Chapter XV of theCrPC. Sections 200 and 202,which form a part of Chapter XV, areextracted below:

“200. Examination of complainant.—A Magistrate takingcognizance of an offence on complaint shall examine upon oaththe complainant and the witnesses present, if any, and the substanceof such examination shall be reduced to writing and shall be signedby the complainant and the witnesses, and also by the Magistrate:Provided that, when the complaint is made in writing, the Magistrateneed not examine the complainant and the witnesses— (a) if apublic servant acting or purporting to act in the discharge of hisofficial duties or a Court has made the complaint; or (b) if theMagistrate makes over the case for inquiry or trial to anotherMagistrate under section 192: Provided further that if the Magistratemakes over the case to another Magistrate under section 192 afterexamining the complainant and the witnesses, the latter Magistrateneed not re-examine them.

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202. Postponement of issue of process.—(1) Any Magistrate, onreceipt of a complaint of an offence of which he is authorised toEtake cognizance or which has been made over to him under section192, may, if he thinks fit, and shall, in a case where the accused isresiding at a place beyond the area in which he exercises hisjurisdiction, postpone the issue of process against the accused, andeither inquire into the case himself or direct an investigation to bemade by a police officer or by such other person as he thinks fit,Ffor the purpose of deciding whether or not there is sufficient groundfor proceeding:

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Provided that no such direction for investigation shall be made,—(a) where it appears to the Magistrate that the offence complainedof is triable exclusively by the Court of Session; or (b) where thecomplaint has not been made by a Court, unless the complainantand the witnesses present (if any) have been examined on oathunder section 200. (2) In an inquiry under sub-section (1), theMagistrate may, if he thinks fit, take evidence of witnesses onoath: Provided that if it appears to the Magistrate that the offencecomplained of is triable exclusively by the Court of Session, he G

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shall call upon the complainant to produce all his witnesses andexamine them on oath. (3) If an investigation under sub-section (1)is made by a person not being a police officer, he shall have forthat investigation all the powers conferred by this Code on an officerin charge of a police station except the power to arrest withoutwarrant.”

18. These provisions have been interpreted in a judgment of twolearned judges of this Court in Suresh Chand Jain v. State of MP[3].After adverting to the provision of Section 156(3)[4], Justice KT Thomasspeaking for the two judge Bench observed:

“8. The investigation referred to therein is the same investigation,the various steps to be adopted for it have been elaborated in ChapterXII of the Code. Such investigation would start with making theentry in a book to be kept by the officer in charge of a policestation, of the substance of the information relating to thecommission of a cognizable offence. The investigation startedthereafter can end up only with the report filed by the police asindicated in Section 173 of the Code. The investigationcontemplated in that chapter can be commenced by the policeeven without the order of a Magistrate. But that does notmean that when a Magistrate orders an investigation underSection 156(3) it would be a different kind of investigation.Such investigation must also end up only with the reportcontemplated in Section 173 of the Code. But the significantpoint to be noticed is, when a Magistrate orders investigationunder Chapter XII he does so before he takes cognizance ofthe offence.”(emphasis supplied)

Dealing specifically with the provisions of Chapter XV, this Courtobserved that once the Magistrate takes cognizance of an offence, the 3 (2001) 2 SCC 628

4 Section 156 of the CrPC is extracted below:

“156. Police officer's power to investigate cognizable cases.—(1) Any officer in chargeof a police station may, without the order of a Magistrate, investigate any cognizablecase which a court having jurisdiction over the local area within the limits of suchstation would have power to inquire into or try under the provisions of Chapter XIII.(2) No proceeding of a police officer in any such case shall at any stage be called inquestion on the ground that the case was one which such officer was not empoweredunder this section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation asabove mentioned.”

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Aprocedure which is enunciated in Chapter XV has to be followed. Theinvestigation which the Magistrate can direct under Section 202(1) eitherby a Police officer or by any other person is for a limited purpose ofenabling the Magistrate to decide whether or not there is sufficient groundto proceed further. The Court held:

B“9. But a Magistrate need not order any such investigation if heproposes to take cognizance of the offence. Once he takescognizance of the offence he has to follow the procedure envisagedin Chapter XV of the Code. A reading of Section 202(1) of theCode would convince that the investigation referred to therein isof a limited nature. The Magistrate can direct such an investigationCto be made either by a police officer or by any other person. Suchinvestigation is only for helping the Magistrate to decide whetheror not there is sufficient ground for him to proceed further. Thiscan be discerned from the culminating words in Section 202(1) i.e.

“or direct an investigation to be made by a police officer or byDsuch other person as he thinks fit, for the purpose of deciding whether ornot there is sufficient ground for proceeding”.

This is because he has already taken cognizance of the offencedisclosed in the complaint, and the domain of the case would thereaftervest with him.”E

The legal position has been summarized in thus:

“10. The position is thus clear. Any Judicial Magistrate, beforetaking cognizance of the offence, can order investigation underSection 156(3) of the Code. If he does so, he is not to examine theFcomplainant on oath because he was not taking cognizance of anyoffence therein. For the purpose of enabling the police to startinvestigation it is open to the Magistrate to direct the police toregister an FIR. There is nothing illegal in doing so. After allregistration of an FIR involves only the process of entering thesubstance of the information relating to the commission of theGcognizable offence in a book kept by the officer in charge of thepolice station as indicated in Section 154 of the Code. Even if aMagistrate does not say in so many words while directinginvestigation under Section 156(3) of the Code that an FIR shouldbe registered, it is the duty of the officer in charge of the policestation to register the FIR regarding the cognizable offence disclosedH

by the complaint because that police officer could take furthersteps contemplated in Chapter XII of the Code only thereafter.”

19. The principle enunciated in the above decision has been followedin several decisions of this Court. In Dilawar Singh v. State of Delhi[4],the decision in Suresh Chand Jain (supra)was cited with approval. InTilak Nagar Industries Limited v. State of Andhra Pradesh[5], a twojudge Bench of this Court held that:

“12…power under Section 156(3) can be exercised by theMagistrate even before he takes cognizance provided the complaintdiscloses the commission of cognizable offence.”

20. In Anju Chaudhary v. State of Uttar Pradesh[6],JusticeSwatanter Kumar for the Bench noted that Section 156 primarily dealswith the powers of the police officer to investigate cognizable cases. Whilepassing an order under Section 156(3), the Magistrate does not takecognizance. The order of the Magistrate is in the nature of “a pre-emptoryreminder or intimation to the police” to exercise their primary duty andpower of investigation. The court held that the power of the Magistrateunder Section 156(3) is not affected by the provisions of Section 202 andobserved:

“40. Still another situation that can possibly arise is that theMagistrate is competent to treat even a complaint termed as anapplication and pass orders under Section 156(3), but where ittakes cognizance, there it would have to be treated as a regularcomplaint to be tried in accordance with the provisions of Section200 onwards falling under Chapter XV of the Code. There also theMagistrate is vested with the power to direct investigation to bemade by a police officer or by such other person as he thinks fit forthe purposes of deciding whether or not there is sufficient groundfor proceeding. This power is restricted and is not as wide as thepower vested under Section 156(3) of the Code. The power of theMagistrate under Section 156(3) of the Code to order investigationby the police have not been touched or affected by Section 202because these powers are exercised even before the cognizance istaken. In other words, Section 202 would apply only to cases whereMagistrate has taken cognizance and chooses to enquire into the 4 (2007) 12 SCC641

5 (2011) 15 SCC 571

6 (2013) 6 SCC 384

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Acomplaint either himself or through any other agency. But theremay be circumstances where the Magistrate, before takingcognizance of the case himself, chooses to order a pure and simpleinvestigation under Section 156(3) of the Code. These cases wouldfall in different class. This view was also taken by a Bench of thisCourt in Rameshbhai Pandurao Hedau v. State of Gujarat [(2010)B4 SCC 185 : (2010) 2 SCC (Cri) 801] . The distinction betweenthese two powers had also been finally stated in the judgment ofthis Court in Srinivas Gundluri v. SEPCO Electric PowerConstruction Corpn. [(2010) 8 SCC 206 : (2010) 3 SCC (Cri) 652]wherein the Court stated that : (SCC p. 218, para 23)C

“23. … to proceed under Section 156(3) of the Code, whatis required is a bare reading of the complaint and if it discloses acognizable offence, then the Magistrate instead of applying his mindto the complaint for deciding whether or not there is sufficientground for proceeding, may direct the police for investigation.”

DBut where it takes cognizance and decides as to whether or notthere exists a ground for proceeding any further, then it is a casesquarely falling under Chapter XV of the Code.”

21. The High Court has evidently not been apprised of the abovejudgments for, if it was, it would not have proceeded to formulate a principleEwhich is contrary to the line of precedent of this Court.

22. The High Court, in granting anticipatory bail under Section 438in the first two appeals and following that order in disposing of the challengeto the order of the Sessions Judge in the companion appeals, has evidentlylost sight of the nature and gravity of the alleged offence. This Court inFSushila Aggarwal v. State (NCT of Delhi)[7] has enunciated theconsiderations that must govern the grant of anticipatory bail in thefollowing terms:

“92.3…While considering an application (for grant of anticipatorybail) the court has to consider the nature of the offence, the role ofGthe person, the likelihood of his influencing the course ofinvestigation, or tampering with evidence (including intimidatingwitnesses), likelihood of fleeing justice (such as leaving the country),etc.

H7 (2020) 5 SCC 1

92.4. Courts ought to be generally guided by considerations suchas the nature and gravity of the offences, the role attributed to theapplicant, and the facts of the case, while considering whether togrant anticipatory bail, or refuse it. Whether to grant or not is amatter of discretion; equally whether and if so, what kind of specialconditions are to be imposed (or not imposed) are dependent onfacts of the case, and subject to the discretion of the court.”

An appellate court or a superior court can set aside the ordergranting bail if the court granting bail did not consider relevant factors. InMyakala Dharmarajam v. The State of Telangana[8] this Court hasheld:

“9. It is trite law that cancellation of bail can be done in caseswhere the order granting bail suffers from serious infirmities resultingin miscarriage of justice. If the court granting bail ignores relevantmaterial indicating prima facie involvement of the Accused or takesinto account irrelevant material, which has no relevance to thequestion of grant of bail to the Accused, the High Court or theSessions Court would be justified in cancelling the bail.”

23. There are serious allegations against the respondent – accusedof a fraudulent misappropriation of amounts intended to be paid by thecompany to the famers affected by the work of road widening beingundertaken by the complainant. The FIR sets out details of the allegedacts of fraud and misappropriation of funds, as explained earlier. Havingregard to the seriousness of the allegations no case for anticipatory bailwas made out. The High Court has erred both in law and in its evaluationof the facts.

24. We accordingly allow these appeals and set aside the orders ofthe High Court. The orders granting anticipatory bail under Section 438to the respondent-accused shall accordingly stand set aside. The appealsare disposed of in the above terms.

25. Pending application(s), if any, stand disposed of.

Devika Gujral

Appeals allowed.

8 (2020) 2 SCC 743

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