AMBIT OF
SECTION 156(3) Cr.P.C Redefined
The
judgment of M/s Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd has laid
down the principles
The hon’ble Supreme Court has adjudicated upon
four appeals as “batch appeals” including the present one as depicted above,
defining the legal aspect. The judgment was pronounced on 26th July
2021. The Section 438 of Cr.P.C was revisited emanating from the judgments u/s
156 (3) Cr.P.C has been redefined in M/s
Supreme Bhiwandi Wada Manor Infrastructure Pvt.
Ltd Vs State of Maharashtra Criminal Appeal No. 680 of 2021. The
judgment is significant also, owing to the fact that even principles of
granting or cancellation of bail is also discussed by hon’ble Supreme Court.
One of the appellant in Bhiwandi (Supra) was a company incorporated under the Companies Act
1956 and engages in infrastructure projects and as such was awarded a contract
for constructing a road ‖
The accused were employees of the company . The statement of complainant u/s 161
of the CrPC was recorded. The accused were responsible for 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. The fraud
had surfaced and hence complaint was filed in the Court of the Magistrate at
Andheri, Mumbai. The ld Magistrate was pleased to pass order under Section
156(3) of the CrPC thereby directing the police to investigate into the
complaint. It is alleged by complainant that accused persons in collusion with
each other prepared false documents in respect of the land meant for construction
of road and handed over to complainant for the said purpose. The accused had
allegedly induced the complainant to part with and pay amounts to other accused
showing them to be land owners. Further it was alleged that accused have
prepared fraudulent report and used a forged documents, as a genuine. Since
alleged offence was cognizable, hence, investigation was prayed for. The direction u/s 156(3) Cr.P.C was thus
issued to the Police for investigation. The prayer also was limited to the
aforesaid extent. It was thus treated as miscellaneous application and finally
disposed off. The F.I.R being FIR No 2 of 2016 was registered with the Powai
Police Station, for alleged offences under Sections 418,419,420, 405, 467,468,
471, 474, 120 B read with Section 34 of the Indian Penal Code. The 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. It has been further alleged that the accused in the
name of 10 fake occupants withdrew an amount of Rs. 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 Rs 5.28 crores by fabricating documents pertaining to the occupants of
lands and making nominal payments to villagers.
Two of the accused named in the FIR moved the
Sessions Court for the grant of anticipatory bail and bail was granted to some
of the accused. The Bombay High Court had
granted interim protection to other accused. The complain ant had challenged
all such orders. Eventually, the High Court granted anticipatory bail to four
(4) accused. The High Court has justified the grant of anticipatory bail in a
brief order of two paragraphs to the effect that the record indicates that the
complainant had filed a complaint bearing in the Court of Metropolitan
Magistrate and an Order under Section 153(3) has been passed by the concerned
Court. In pursuance of the said Order, a Crime No.02/2016 was registered by the
Powai Police Station. The police had been seeking custody of the accused in the
said crime, which is registered in pursuance of the Order passed under Section
156(3) of Cr.P.C. as noted earlier. The record indicated that, the complaint
filed by first informant was supported with affidavit and the mandate of law as
contemplated under Section 200 of Cr.P.C. i.e. the said complainant has not
been examined on oath by the concerned Magistrate. The basic tenet of law as
contemplated under Section 200 of Cr.P.C. has not been complied with, it raises
a serious doubt about the validity of issuance of the said Order passed under
Section 156(3) of the Cr.P.C. by the concerned Magistrate.
The case
of complainant:
(i)
The High Court while granting
anticipatory bail failed to even prima facie notice the nature and gravity of
the allegations against the accused;
(ii)
The Magistrate passed an order under
Section 156(3) of the CrPC directing the complaint to be investigated and
accordingly FIR was registered by the Powai Police Station;
(iii)
The order of the High Court proceeds on the
basis that the mandate of Section 200 of the CrPC has not been complied with by
the Magistrate. since the complainant was not examined on oath;
(iv)
The High Court has failed to notice
judgments of Supreme Court that has 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) Cr.P.C;
(v)
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.
CONTENTION
OF ACCUSED
(i)
The accused were protected from arrest
by an interim orders and they were called for investigation on several
occasions;
(ii)
The accused having co-operated in the
investigation, there may not be any justification to interfere with the grant
of anticipatory bail in pursuance of the orders which passed years back; and
(iii)
The view of the High Court on the
interpretation of the provisions of Section 202 is correct, as proviso to sub-Section (1) of Section 202
under which an enquiry by the police can be ordered only after the
complainant’s statement has been recorded on oath under Section 200 of the
CrPC.
These submissions have been
adopted in the other cases as well.
What is of importance is that the
primary basis on which the High Court has allowed the applications under
Section 438 Cr.P.C is that the complaint filed by the first informant was to be
examined on oath under Section 200 of the CrPC and thus it raises a serious
doubt about the validity of the order which has been passed under Section
156(3) Cr.P.C.
According to hon’ble Supreme
Court there is a serious error in the view of the high court. The order of Magistrate
under Section 156(3) was not under challenge before the High Court and had
attained finality. Further, the High Court fell in error in raising a doubt
about the correctness of the order under section 156(3) Cr.P.C passed by the
Metropolitan Magistrate in the course of considering the complaint filed by the
complainant. Secondly, the position in law as set out in the order of the high
court is not in consonance with the principles which have been consistently
enunciated in the decisions of Supreme Court, specifically in the context of
Chapter XV of the CrPC.
Sections 200 and 202, which form
a part of Chapter XV, are extracted below:
200. Examination of complainant.—A
Magistrate taking cognizance of an offence on complaint shall examine upon oath
the complainant and the witnesses present, if any, and the substance of such
examination 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 fit, for the purpose of deciding
whether or not there is sufficient ground for proceeding: Provided that no such
direction for investigation shall be made,—
(a)
where it appears to the Magistrate that the offence complained of is triable
exclusively by the Court of Session; or (b) where the complaint has not been
made by a Court, unless the complainant and the witnesses present (if any) have
been examined on oath under section 200.
(2) In an inquiry under sub-section
(1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is
triable exclusively by the Court of Session, he shall call upon the complainant
to produce all his witnesses and examine them on oath.
(3) If
an investigation under sub-section (1) is made by a person not being a police officer, he
shall have for that investigation all the powers conferred by this Code on an
officer in charge of a police station except the power to arrest without
warrant.‖
LAW
|
S.N |
PARTICULARS |
REMARK |
||
|
1. |
Suresh Chand
Jain v. State of MP (2001) 2 SCC 628 |
The investigation contemplates
steps to be adopted as is elaborated in Chapter XII of the Code. The investigation
would start with making the entry in a book to be kept by the officer in
charge of a police station. The substance of the information relating to the
commission of a cognizable offence is recorded. The investigation starts
thereafter can end up only with the report filed by the police as indicated
in Section 173 of the Code. The investigation under the chapter can be
commenced by the police even without the order of a Magistrate. However, when
a Magistrate orders an investigation under Section 156(3) Cr.P.C, such
investigation must also end up only with the report contemplated in Section
173 of the Code. But the significant point is that when a Magistrate orders
investigation under Chapter XII he does so before he takes cognizance of the
offence. |
||
|
2. |
Dilawar Singh
v. State of Delhi (2007) 12 SCC 641 |
The principles of Suresh Chand (Supra) was reiterated. |
||
|
3. |
Tilak Nagar
Industries Limited v. State of Andhra Pradesh (2011) 15 SCC 571 |
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.‖ |
||
|
4. |
Anju Chaudhary
v. State of Uttar Pradesh (2013) 6 SCC 384 |
A 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 under Chapter XV of the Code. There also the Magistrate is
vested with the power to direct investigation to be made by a police officer
or by such other person as he thinks fit for the purposes of deciding whether
or not there is sufficient ground for proceeding. This power is restricted
and is not as wide as the power vested under Section 156(3) of the Code. |
||
|
5. |
Rameshbhai
Pandurao Hedau v. State of Gujarat (2010)
2 SCC (Cri) 801] |
Section 202 would apply only
to cases where Magistrate has taken cognizance and chooses to enquire into
the complaint either himself or through any other agency. But there may be
circumstances where the Magistrate, before taking cognizance of the case
himself, chooses to order a pure and simple investigation under Section
156(3) of the Code. These cases would fall in different class. |
||
|
CANCELLATION OF BAIL |
||||
|
6. |
Sushila
Aggarwal v. State (NCT of Delhi) 2020 5 SCC 1 |
…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. 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. |
||
|
7. |
Myakala
Dharmarajam v. The State of Telangana (2020 2 SCC 743 |
It
is trite law that cancellation of bail can be done in cases where the order
granting bail suffers from serious infirmities resulting in miscarriage of
justice. If the court granting bail ignores relevant material indicating
prima facie involvement of the Accused or takes into account irrelevant
material, which has no relevance to the question of grant of bail to the
Accused, the High Court or the Sessions Court would be justified in
cancelling the bail.‖
|
||
Dealing specifically with the
provisions of Chapter XV, hon’ble Supreme Court observed that once the
Magistrate takes cognizance of an offence, the procedure which is enunciated in
Suresh Chand (Supra), Section 156 of the CrPC is extracted below:-
156. Police officer's
power to investigate cognizable cases.—
(1) Any officer in charge of a
police station may, without the order of a Magistrate, investigate any
cognizable case which a court having jurisdiction over the local area within
the limits of such station 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 in question on the ground
that the case was one which such officer was not empowered under this section
to investigate.
(3) Any Magistrate empowered under
Section 190 may order such an investigation as above mentioned.‖ 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 hon’ble Supreme
Court held: ―
“
But a Magistrate need not order any such investigation if he proposes to take
cognizance of the offence. Once he takes cognizance of the offence he has to
follow the procedure envisaged in Chapter XV of the Code. A reading of Section
202(1) of the Code would convince that the investigation referred to therein is
of a limited nature. The Magistrate can direct such an investigation to be made
either by a police officer or by any other person. Such investigation is only
for helping the Magistrate to decide whether or not there is sufficient ground
for him to proceed further. This can be discerned from the culminating words in
Section 202(1) i.e. ―or direct an investigation to be made by a police officer
or by such other person as he thinks fit, for the purpose of deciding whether
or not there is sufficient ground for proceeding‖. This is, because he has already
taken cognizance of the offence disclosed in the complaint, and the domain of
the case would thereafter vest with him.‖
The legal position
has been summarized in thus: ―
The position is thus clear. Any Judicial
Magistrate, before taking cognizance of the offence, can order investigation
under Section 156(3) of the Code. If he does so, he is not to examine the
complainant on oath because he was not taking cognizance of any offence
therein. For the purpose of enabling the police to start investigation it is
open to the Magistrate to direct the police to register an FIR. There is
nothing illegal in doing so. After all registration of an FIR involves only the
process of entering the substance of the information relating to the commission
of the cognizable offence in a book kept by the officer in charge of the police
station as indicated in Section 154 of the Code. Even if a Magistrate does not
say in so many words while directing investigation under Section 156(3) of the
Code that an FIR should be registered, it is the duty of the officer in charge
of the police station to register the FIR regarding the cognizable offence
disclosed by the complaint because that police officer could take further steps
contemplated in Chapter XII of the Code only thereafter.‖
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 under Chapter XV of the Code. There also, the Magistrate is vested with
the power to direct investigation to be made by a police officer or by such
other person as he thinks fit for the purposes of deciding whether or not there
is sufficient ground for proceeding. This power is restricted and is not as
wide as the power vested under Section 156(3) of the Code. The power of Dilawar
Singh (Supra), Tilak Nagar Industries Limited (Supra)
and Anju Chaudhary (Supra).
Thus it emerges that
the Magistrate under Section 156(3) of the Code to order investigation by the
police have not been touched or affected by Section 202 Cr.P.C because these
powers are exercised even before the cognizance is taken. In other words,
Section 202 would apply only to cases where Magistrate has taken cognizance and
chooses to enquire into the complaint either himself or through any other
agency. But there may be circumstances where the Magistrate, before taking
cognizance of the case himself, chooses to order a pure and simple
investigation under Section 156(3) of the Code. These cases would fall in
different class. This view was also taken by a Bench of Supreme Court in Rameshbhai Pandurao Hedau v. State of
Gujarat [(2010) 4 SCC 185 : (2010) 2
SCC (Cri) 801] . The distinction between these two powers had also been
finally stated in the judgment of Supreme Court in Srinivas Gundluri v. SEPCO Electric Power Construction Corpn. [(2010) 8 SCC 206 : (2010) 3 SCC (Cri) 652]
wherein the Court stated that :
“to proceed under
Section 156(3) of the Code, what is required is a bare reading of the complaint
and if it discloses a cognizable offence, then the Magistrate instead of
applying his mind to the complaint for deciding whether or not there is
sufficient ground for proceeding, may direct the police for investigation.‖
But where it takes cognizance and decides as to whether or not there exists a
ground for proceeding any further, then it is a case squarely falling under
Chapter XV of the Code”.‖
It is observed by Supreme court, in the Supreme Bhiwandi (Supra0 that
the High Court has evidently not been apprised of the above judgments. It was
further held that the High Court, in granting anticipatory bail under Section
438 of Cr.P.C, has evidently lost sight of the nature and gravity of the
alleged offence. In Sushila Aggarwal (Supra)
has enunciated the considerations that must govern the grant of anticipatory
bail in the following terms:
…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.
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 (Supra) the Supreme Court has held : ―
It is trite law that cancellation of bail can
be done in cases where the order granting bail suffers from serious infirmities
resulting in miscarriage of justice. If the court granting bail ignores
relevant material indicating prima facie involvement of the Accused or takes
into account irrelevant material, which has no relevance to the question of
grant of bail to the Accused, the High Court or the Sessions Court would be
justified in cancelling the bail.‖
In the case in hand, the
hon’ble Supreme Court has held that as there are serious allegations against
the accused of a fraudulent misappropriation of amounts intended to be paid by
the company to the famers 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.
REMARK
The hon’ble Supreme Court has
consistently laid down law, whether, it is as regards law u/s 156 (3) Cr.P.C or
for granting or cancellation of anticipatory bail u/s 438 of Cr.P.C. The
present case is a testimony that law laid down successively by the hon’ble
Supreme Court could not be followed. Ironically, the judgments/precedents were not even placed
before the high court and the judgment, in any case, appears to be per incuriam. However, what is baffling
is that not only the correct and basic principles of section 156(3) Cr.P.C could
not be appreciated by high court, but while granting bail, even if it is discretionary,
still, the courts has to be guided by certain established norms and the bail
was granted without adhering to the norms and hence the hon’ble Supreme court
has not only set aside the bail granted to the accused, but in very unequivocal
term has again set out the parameter of section 156 (3) Cr.P.C.
Anil K Khaware
Founder & Sr Associates
societylawandjustice.com
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