INTRODUCTION
On today’s show, we will discuss the case of Supreme
Bhiwandi Wada Manor Infrastructure Pvt. Ltd. v. State of Maharashtra and
Another, 2021 SCC OnLine SC 507, wherein the Hon’ble Court explained
the scope of powers exercisable by a Magistrate while ordering an investigation
in a Criminal Complaint.
FACTS
The brief facts of the case are that anticipatory
bail under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) was
granted to certain accused persons. The accused persons were employees of the
Appellant Company. It was alleged that the accused persons had the responsibility
of disbursing the compensation claims of persons whose lands were acquired and
that they had forged false documents in relation to a Highway Construction
Project under which various farmers and landowners were to be granted compensation
in lieu of their land acquired. It was further alleged that such fund for
disbursement of compensation was misappropriated by the accused persons.
A Complaint in this regard was filed before a
Magistrate who in exercise of powers under S. 156 (3) of CrPC directed the
Police to investigate into the Complaint. The accused persons approached the High
Court for grant of anticipatory bail that was duly granted to them on the
ground that the mandate of S. 200 of CrPC of examining the complainant on oath
has not been fulfilled by the Magistrate. This grant of anticipatory was challenged
before the Hon’ble Supreme Court.
Before adverting any further, let us discuss the
important provisions of the Code of Criminal Procedure involved in this case.
IMPORTANT PROVISIONS OF CRPC
Section 156 (3) – S. 156 (3) provides powers
to the Magistrate to order an Investigation into a cognizable offence.
Section 200 – S. 200 provides that a
Magistrate taking cognizance of a complaint, if not made in writing, shall
examine upon oath the complainant and substance of such examination shall be
reduced to in writing.
Section 202 – S. 202 provides that if the
Complaint is made by private persons, no order of investigation shall be made
by the Magistrate unless he examines the complainant and the witness.
Now, let us understand the pertinent observations
by the Court.
OBSERVATIONS BY THE COURT
Firstly, the Court observed that even if a
Magistrate orders an investigation, the same is not different from an
investigation that is conducted by the Police. The only difference is that when
a Magistrate orders an investigation, he does so before taking cognizance of
the offence, and the purpose of such investigation is to ascertain whether
there is a sufficient ground for proceeding against accused persons or not.
Secondly, according to the Court, when a Magistrate
orders an investigation, the Police is dutybound to register the FIR regarding
the cognizable offence disclosed by the Complaint as the Police could conduct
investigation only after registration of the FIR.
Thirdly, the Court noted that the powers under
Section 156 (3) can be exercised by a Magistrate even before he takes
cognizance provided the complaint discloses commission of a cognizable offence.
Thus, S. 200 or S. 202 may or may not come into picture at the time a
Magistrate orders an investigation under S. 156 (3).
Fourthly, the Court clarified that while ordering
an investigation under S. 156 (3), a Magistrate does not take cognizance and
such an order is merely “a pre-emptory reminder or intimation to the
police” to exercise their primary duty of investigation.
Fifthly, the Court also explained that S. 202
comes into picture only when the Magistrate has taken cognizance of the offence
and decides to enquire into the complaint. But if such is not the case, the Magistrate
has all powers to order an investigation under S. 156 (3) of CrPC.
And lastly, the Court observed that while deciding
an application for grant of Anticipatory Bail, the Court has to generally
consider the nature of the offence, the role of the accused, the likelihood of
influencing the investigation, the likelihood of fleeing justice etc. and such
grant of bail could be cancelled if the court granting bail ignores relevant
material on record or takes into account irrelevant material.
HELD BY THE COURT
Therefore, upon cumulative consideration of the matter,
the Hon’ble Supreme Court was of the view that the allegations against the
accused relating to misappropriation of funds are serious in nature and no case
for grant of anticipatory bail is made out. Hence, the order of the High Court
granting anticipatory bail was set aside.
That was all about the case. So, what are my
concluding remarks?
CONCLUSION
This is quite an informative judgment as it beautifully explains the scope of the powers exercisable by a Magistrate under S. 156 (3) of CrPC. It seems that the only requirement to exercise powers under S. 156 (3) is that the complaint must disclose commission of a cognizable offence. Once such requirement is satisfied, the Magistrate is within its powers to order an investigation even before taking of cognizance. Further, if a bail has been granted on extraneous considerations that are not relevant to the case, then such grant of bail could be set aside by a higher court.
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