2021 (7) TMI 1279 - SC - Indian Laws

Seeking grant of anticipatory bail - substance of the allegation is that the Accused did not hand over the cheques due to the farmers for their lands taken over for the project and got the cheques released in the names of other persons thereby defrauding the company and misappropriating its fund - Section 438 of the Code of Criminal Procedure 1973 - HELD THAT - An Appellate Court or a superior court can set aside the order granting bail if the court granting bail did not consider relevant factors. There are serious allegations against the Respondent-Accused of a fraudulent misappropriation of amounts intended to be paid by the company to the farmers affected by the work of road widening being undertaken by the complainant. The FIR sets out details of the alleged acts of fraud and misappropriation of funds, as explained earlier. Having regard to the seriousness of the allegations no case for anticipatory bail was made out. The High Court has erred both in law and in its evaluation of the facts. The orders granting anticipatory bail Under Section 438 to the Respondent-Accused shall accordingly stand set aside - Appeal allowed.

Summary

Issues Involved:
1. Legality of the order granting anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC).
2. Validity of the Magistrate's order under Section 156(3) of the CrPC.
3. Compliance with Section 200 of the CrPC.
4. Considerations for granting anticipatory bail.

Detailed Analysis:

1. Legality of the Order Granting Anticipatory Bail Under Section 438 of the CrPC:
The Supreme Court scrutinized the High Court's decision to grant anticipatory bail to the accused. The High Court had granted anticipatory bail to A1 and A4 and subsequently disposed of the petitions challenging the grant of anticipatory bail to A2 and A3. The Supreme Court found that the High Court had erred in its evaluation by not considering the nature and gravity of the allegations against the accused, which involved serious charges of fraudulent misappropriation of funds intended for farmers affected by a road construction project.

2. Validity of the Magistrate's Order Under Section 156(3) of the CrPC:
The Supreme Court observed that the High Court had questioned the validity of the Magistrate's order under Section 156(3) on the grounds that the complainant was not examined on oath as mandated by Section 200 of the CrPC. The Supreme Court clarified that the Magistrate's order under Section 156(3) was not under challenge and had attained finality. The High Court's doubt about the correctness of the order under Section 156(3) was unfounded as the legal position allows a Magistrate to order an investigation under Section 156(3) before taking cognizance of an offense.

3. Compliance with Section 200 of the CrPC:
The High Court had held that the mandate of Section 200 of the CrPC was not complied with by the Magistrate, raising doubts about the validity of the order under Section 156(3). The Supreme Court clarified that the provisions of Sections 200 and 202, which form part of Chapter XV of the CrPC, are distinct from the power under Section 156(3). The Magistrate is justified in ordering an investigation under Section 156(3) before taking cognizance of a complaint under Section 200. The Supreme Court cited precedents to support this interpretation, emphasizing that the investigation under Section 156(3) is not affected by the provisions of Section 202.

4. Considerations for Granting Anticipatory Bail:
The Supreme Court underscored the importance of considering the nature and gravity of the offense, the role of the accused, and the likelihood of influencing the investigation or tampering with evidence while granting anticipatory bail. The High Court had failed to consider these relevant factors, leading to a miscarriage of justice. The Supreme Court cited the case of Sushila Aggarwal v. State (NCT of Delhi), which outlines the considerations for granting anticipatory bail, and Myakala Dharmarajam v. The State of Telangana, which permits setting aside an order granting bail if relevant factors were not considered.

Conclusion:
The Supreme Court allowed the appeals, set aside the orders of the High Court granting anticipatory bail under Section 438 to the accused, and emphasized the need for a thorough evaluation of the nature and gravity of the allegations in such cases. The appeals were disposed of accordingly, and any pending applications were also disposed of.