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TMI Blog2021 (7) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... nting anticipatory bail Under Section 438 to the Respondent-Accused shall accordingly stand set aside - Appeal allowed. - Criminal Appeal No. 680 of 2021 (Arising out of SLP (Crl.) No. 3155 of 2018), Criminal Appeal No. 681 of 2021 (Arising out of SLP (Crl.) No. 3156 of 2018) and Ors. - - - Dated:- 26-7-2021 - Dr. D.Y. Chandrachud And M.R. Shah, JJ. Criminal Appeal No. 682 of 2021 (Arising out of SLP (Crl.) No. 2617 of 2018) and Criminal Appeal No. 683 of 2021 (Arising out of SLP (Crl.) No. 2628 of 2018) JUDGMENT Dr. D.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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Under Section 156(3) of the Code of Criminal Procedure 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 a forged documents, as a genuine. Considering the nature of allegations, in support of the alleged offences, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fake occupants withdrew an amount of ₹ 1,84,30,400 by forging and fabricating documents for their personal gain. There are allegations in the complaint to the effect that the Accused were also involved in a fraud of around ₹ 5.28 crores by fabricating documents pertaining to the occupants of lands and making nominal payments to villagers. 10. Two of the Accused named in the FIR moved the Sessions Court for the grant of anticipatory bail. By its orders dated 13 February 2017 and 16 February 2017, the Sessions Court granted anticipatory bail to A2 and A3. Applications for anticipatory bail were also moved before the Bombay High Court by A1 and A4. 11. On 24 January 2017, the High Court granted interim protection against arrest to A1. The High Court granted interim protection from arrest to A4 on 16 February 2017. The grant of anticipatory bail to A2 and A3 also became a subject matter of a similar challenge by the complainant before the High Court. Eventually, by its order dated 18 December 2017, the High Court granted anticipatory bail to A1 and A4. In consequence it disposed of the petitions questioning the grant of anticipatory bail by the Sessions Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the complaint to be investigated and accordingly FIR No. 2 of 2016 was registered by the Powai Police Station on 24 May 2016; (iii) The order of the High Court proceeds on the basis that the mandate of Section 200 of the Code of Criminal Procedure has not be complied with by the Magistrate since the complainant was not examined on oath; (iv) The High Court has, in taking this view, failed to notice judgments of this Court which have clarified the legal position that the Magistrate is justified in ordering an investigation Under Section 156(3) before taking cognizance of a complaint Under Section 200 and the nature of the enquiry by the police which the Magistrate may order Under Section 202 is distinct from the power Under Section 156(3); (v) In any event there was no challenge to the order passed by the Magistrate ordering an investigation Under Section 156(3) and hence there was no occasion for the High Court to doubt its validity; and (vi) The High Court has even waived the condition imposed in the interim order to attend the concerned Police Station as a result of which the investigation has been thwarted. 15. On the other hand, Mr. R R Deshpande, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate Under Section 192: Provided further that if the Magistrate makes over the case to another Magistrate Under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. 202. Postponement of issue of process--(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him Under Section 192, may, if he thinks fit, and shall, in a case where the Accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the Accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a cognizable offence. The investigation started thereafter can end up only with the report filed by the police as indicated in Section 173 of the Code. The investigation contemplated in that chapter can be commenced by the police even without the order of a Magistrate. But that does not mean that when a Magistrate orders an investigation Under Section 156(3) it would be a different kind of investigation. Such investigation must also end up only with the report contemplated in Section 173 of the Code. But the significant point to be noticed is, when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence. (emphasis supplied) Dealing specifically with the provisions of Chapter XV, this Court observed that once the Magistrate takes cognizance of an offence, the procedure which is enunciated in Chapter XV has to be followed. The investigation which the Magistrate can direct Under Section 202(1) either by a Police officer or by any other person is for a limited purpose of enabling the Magistrate to decide whether or not there is sufficient ground to proceed further. The Court held: 9. But a Magistrate need not order an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Andhra Pradesh (2011) 15 SCC 571, a two judge Bench of this Court held that: 12...power Under Section 156(3) can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses the commission of cognizable offence. 20. In Anju Chaudhary v. State of Uttar Pradesh (2013) 6 SCC 384, Justice Swatanter Kumar for the Bench noted that Section 156 primarily deals with the powers of the police officer to investigate cognizable cases. While passing an order Under Section 156(3), the Magistrate does not take cognizance. The order of the Magistrate is in the nature of a pre-emptory reminder or intimation to the police to exercise their primary duty and power of investigation. The court held that the power of the Magistrate Under Section 156(3) is not affected by the provisions of Section 202 and observed: 40. Still another situation that can possibly arise is that the Magistrate is competent to treat even a complaint termed as an application and pass orders Under Section 156(3), but where it takes cognizance, there it would have to be treated as a regular complaint to be tried in accordance with the provisions of Section 200 onwards falling un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court in Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC 1 has enunciated the considerations that must govern the grant of anticipatory bail in the following terms: 92.3...While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. 92.4. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court. An Appellate Court or a superior court can set aside the order granting bail if the court granting bail did not consider relevant factors. In Myakala Dharmarajam v. The State of Telangana (2020) 2 SCC 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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