Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 420

SUPREME COURT OF INDIA
Dhananjaya Y Chandrachud, M R Shah, JJ.
M/s Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd. – Appellants
Versus
The State of Maharashtra & Anr. – Respondents
Criminal Appeal No. 680 of 2021 @ SLP (Crl) No 3155 of 2018, Criminal Appeal No. 681 of 2021 @ SLP (Crl) No 3156 of 2018, Criminal Appeal No. 682 of 2021 @ SLP (Crl) No 2617 of 2018 , Criminal Appeal No. 683 of 2021 @ SLP (Crl) No 2628 of 2018
Decided On : 26-07-2021

Advocates appeared:
For the Petitioner(s):Dinesh Tiwari, Jaikriti S. Jadeja, Ansh Karnawat, Advocates
For the Respondent(s):Rahul Chitnis, Sachin Patil, Aaditya A Pande, Geo Joseph, Jitendra Kumar, R.R. Deshpande, Prachiti Deshpande, Priyanka Deshpande, Nitil Lonkar, Sonali Suryawanshi, Shankey Agrawal, Advocates

IMPORTANT POINTS
(1) Power under Section 156(3) of Cr.P.C. can be exercised by Magistrate even before he takes cognizance provided complaint discloses commission of cognizable offence. Power of Magistrate under Section 156(3) is not affected by provisions of Section 202 of Cr.P.C.
(2) Anticipatory bail should not be granted in cases where allegations are grave in nature.

Headnote:
(A) Criminal Procedure Code, 1973 – Sections 156(3) and 202 – Direction for Police investigation – Any Judicial Magistrate, before taking cognizance of offence, can order investigation under Section 156(3) of Code – If he does so, he is not to examine complainant on oath because he was not taking cognizance of any offence therein – For the purpose of enabling Police to start investigation it is open to Magistrate to direct police to register an FIR – There is nothing illegal in doing so – Power under Section 156(3) can be exercised by Magistrate even before he takes cognizance provided complaint discloses commission of cognizable offence – Section 156 primarily deals with powers of police officer to investigate cognizable cases – While passing order under Section 156(3), Magistrate does not take cognizance – Order of Magistrate is in tnature of pre-emptory reminder or intimation to police to exercise their primary duty and power of investigation – Power of Magistrate under Section 156(3) is not affected by provisions of Section 202. (Paras 18, 19 and 20)
(B) Criminal Procedure Code, 1973 – Section 438 – Anticipatory bail – Grant of – Challenge as to – Allegation of financial fraud – Substance of the allegation is that accused did not hand over cheques due to farmers for their lands taken over for project and got cheques released in names of other persons thereby defrauding company and misappropriating its fund – Details of amounts which were allegedly misappropriated were furnished together with complaint – High Court, in granting anticipatory bail under Section 438 in first two appeals and following that order in disposing of challenge to order of Sessions Judge in companion appeals, has evidently lost sight of nature and gravity of alleged offence – There are serious allegations against respondent-accused of fraudulent misappropriation of amounts intended to be paid by company to famers affected by work of road widening being undertaken by complainant – Having regard to seriousness of allegations no case for anticipatory bail was made out – High Court has erred both in law and in its evaluation of facts – Orders granting anticipatory bail under Section 438 to respondent-accused set aside. (Paras 9, 22, 23 and 24)
Facts of the case:
Instant batch of four appeals involves similar issues and were heard together. The first two appeals arise out of an order dated 18 December 2017 of a Single Judge of the High Court of Judicature at Bombay by which two anticipatory bail applications under Section 438 of the Code of Criminal Procedure 1973 were allowed.
Findings of Court:
There is a serious error in the view of the Single Judge. First and foremost, the Magistrate’s order under Section 156(3) was not under challenge before the High Court and has attained finality. The High Court was in error in raising a doubt about the correctness of the order under section 156(3) passed by the Metropolitan Magistrate on 11 May 2016 in the course of considering the complaint filed by the complainant.
Result : Appeals allowed.

JUDGMENT :

Dhananjaya Y Chandrachud, J.

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

2. The details of these applications are:

(i) Anticipatory Bail (Application) No 1971 of 2016 moved by Nilesh Dayanand Chumble; and

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

3. The order passed by the High Court on the above applications under Section 438 of the CrPC has been questioned by the complainant in the appeals arising out of the first two Special Leave Petitions¹[SLP (Crl) No 3155 of 2018; and SLP (Crl) No 3156 of 2018] under Article 136 of the Constitution. In the remaining two appeals (arising out of Special Leave Petitions²[SLP (Crl) No 2617 of 2018; and SLP (Crl) No 2628 of 2018]) the Single Judge of the High Court has on 18 December 2017 followed the order granting anticipatory bail in the two applications noted above and disposed of the complainant’s challenge to the grant of anticipatory bail by the Sessions Court to (i) Diwakar Waman Patil; and (ii) Hemant Haribhau Sonawane.

4. The persons accused to whom anticipatory bail has been granted in the first two appeals are the first accused, Mayur Jayantilal Anam (“A1”), and the fourth accused, Nilesh Dayanand Chumble (“A4”). In the two companion appeals, the grant of anticipatory bail by the Sessions Court to the second accused, Hemant Haribhau Sonawane, (“A2”) and the third accused, Diwakar Waman Patil (“A3”) was in issue.

5. The appellant is a company incorporated under the Companies Act 1956 and engages in infrastructure projects. The appellant was awarded a 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 respondents to these appeals were engaged by the appellant as its employees. In terms 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 A4 were employed as Liaison Officer, Liaison Assistant and Senior Liaisoning Officer, respectively. It has been alleged that their responsibilities included identifying farmers on the basis of a list provided by governmental authorities and to disburse compensation to them after verifying the authenticity 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 a complaint 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 CrPC directing the police to investigate into the complaint. For convenience of reference, the order of the Magistrate is extracted below:

“Perused complaint filed by complainant viz. M/s Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd. through its authorized signatory Mr. Uday Prabhakar Joshi, supported with his affidavit. Heard Ld. Advocate Mr. K.K. Shukla for complainant. Perusal of documents placed on record. It is alleged by complainant that accused persons in collusion with each other prepared false documents in respect of the land situated at Four Lanning of Wada-Bhiwandi State Highway No. 35, State Highway Manor-Wada No 34 and Bhiunar Wada Junction work of construction of road handed over to complainant. It is further alleged by complainant that, accused Nos. 1 and 2 in collusion with accused Nos. 3 to 12 induced complainant to part with and pay amounts to accused Nos. 3 to 9, showing them to be land owners. It is further alleged complainant that, accused have prepared fraudulent report and used