Supreme Court on Power of Magistrate under S. 156 (3) of CrPC to Order Investigation

 

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.