Holding

The High Court erred; anticipatory bail cannot be granted as the magistrate’s Section 156(3) order was final and the alleged offences are of sufficient seriousness to deny bail.

Summary

M/s Supreme Bhiwandi Wada Manor Infrastructure Pvt Ltd, a road‑construction contractor, alleged that four of its employees fabricated land‑ownership documents and misappropriated about Rs 5.08 crore intended for farmer compensation. A complaint led a Metropolitan Magistrate to order a police investigation under Section 156(3) of the CrPC, after which an FIR was lodged. The Sessions Court and later the Bombay High Court granted anticipatory bail under Section 438 to the accused, a decision the appellant challenged. The Supreme Court held that the magistrate’s order under Section 156(3) was final and could not be re‑examined, and that the High Court failed to consider the seriousness of the alleged fraud in granting bail. Consequently, the Court set aside the anticipatory bail orders, allowing the appeals and disposing of the matter.

Issues considered

The validity of challenging a magistrate’s order under Section 156(3) CrPC in anticipatory bail proceedings.
Whether anticipatory bail should be granted in view of the nature and gravity of the alleged fraud offences.
The correct interpretation of Sections 156(3), 200 and 202 of the CrPC concerning investigation before cognizance.
Whether the High Court erred in law and fact in granting anticipatory bail to the accused.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 200, s. 202, s. 438
Indian Penal Code, 1860s. 120B, s. 34, s. 405, s. 418, s. 419, s. 420, s. 467, s. 468, s. 471, s. 474

Subjects

anticipatory bailSection 438 CrPCSection 156(3) CrPCfraudmisappropriationroad construction contractinvestigationmagistrate ordercognizancebail jurisprudence

Judgment

226 [2021]REPORTS
SUPREME COURT 7 S.C.R. 226 [2021] 7 S.C.R.

A M/S. SUPREME BHIWANDI WADA
MANOR INFRASTRUCTURE PVT. LTD.
v.
THE STATE OF MAHARASHTRA & ANR.
B (Criminal Appeal No. 680 of 2021)
JULY 26, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Code of Criminal Procedure, 1973: s.438 – Anticipatory bail
C
– Appellant-complainant was awarded contract for constructing road
– Four accused were engaged by appellant company as its employees
and were assigned responsibility of identifying farmers on the basis
of list provided by the governmental authorities and to disburse
compensation to them after verifying authenticity of the claim –
D Appellant filed complaint against the four accused alleging that the
accused were involved in fraud of around Rs.5.08 crores by
fabricating documents pertaining to the occupants of lands and
making nominal payments to villagers – Trial court ordered
investigation under s.156(3) of the Code – FIR was registered – All
four accused persons were granted anticipatory bail by High Court
E
– Appeal by complainant – Held: Magistrate’s order under s.156(3)
was not under challenge before the High Court and had attained
finality – High Court was in error in raising a doubt about the
correctness of the order under s.156(3) passed by the Magistrate in
the course of considering the complaint – Secondly, the position in
F law as set out in the order of High Court did not accord with the
principles consistently enunciated in the context of Chapter XV of
the CrPC – High Court, in granting anticipatory bail lost sight of
the nature and gravity of the alleged offence – There were serious
allegations against the accused persons of a fraudulent
misappropriation of amounts intended to be paid to the farmers
G
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 – Having regard to the seriousness
of the allegations, no case for anticipatory bail was made out.

H
226
M/S. SUPREME BHIWANDI WADA MANOR INFRA. PVT LTD v. THE 227
STATE OF MAHARASHTRA

Allowing the appeals, the Court A
HELD: The High Court, in granting anticipatory bail under
Section 438 in the first two appeals and following that order in
disposing of the challenge to the order of the Sessions Judge in
the companion appeals, has evidently lost sight of the nature and
gravity of the alleged offence.There are serious allegations against B
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. Having regard to the seriousness C
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.
[Paras 22, 23][238-E-F; 239-D-F]
Suresh Chand Jain v. State of M.P. (2001) 2 SCC
628:[2001] 1 SCR 257; Dilawar Singh v. State of Delhi D
(2007) 12 SCC 641; Tilak Nagar Industries Limited v.
State of Andhra Pradesh (2011) 15 SCC 571; Anju
Chaudhary v. State of Uttar Pradesh (2013) 6 SCC
384:[2012] 13 SCR 901; Sushila Aggarwal v. State NCT
of 15 Delhi (2020) 5 SCC 1:[2020] 2 SCR 1; Myakala E
Dharmarajam v. The State of Telangana (2020) 2 SCC
743 – referred to
Case Law Reference
[2001] 1 SCR 257 referred to Para 18 F
(2007) 12 SCC 641 referred to Para 19
(2011) 15 SCC 571 referred to Para 19
[2012] 13 SCR 901 referred to Para 20
[2020] 2 SCR 1 referred to Para 22 G
(2020) 2 SCC 743 referred to Para 22

H
228 SUPREME COURT REPORTS [2021] 7 S.C.R.

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
680 of 2021
From the Judgment and Order dated 18.12.2017 of the High Court
of Bombay at Bombay in Anticipatory Bail Application No.85 of 2017.
With
B Criminal Appeal Nos. 681, 682 And 683 of 2021
Dinesh Tiwari, Ms. Jaikriti S. Jadeja, Ansh Karnawat, Advs. for
the appellant.
Rahul Chitnis, Sachin Patil, Aaditya A Pande, Geo Joseph, Jitendra
Kumar, Dr. R. R. Deshpande, Ms. Prachiti Deshpande, Ms. Priyanka
C Deshpande, Nitil Lonkar, Ms. Sonali Suryawanshi, Shankey Agrawal,
Advs. for the respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. This batch of four appeals involves similar issues and were
D 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:
E (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 applications
F under Section 438 of the CrPC has been questioned by the complainant
in the appeals arising out of the first two Special Leave Petitions 1 under
Article 136 of the Constitution. In the remaining two appeals (arising out
of Special Leave Petitions2)the Single Judge of the High Court has on 18
December 2017 followed the order granting anticipatory bail in the two
applications noted above and disposed of the complainant’s challenge to
G
the grant of anticipatory bail by the Sessions Court to (i) Diwakar Waman
Patil; and (ii) Hemant Haribhau Sonawane.
4. The persons accused to whom anticipatory bail has been granted
in the first two appeals are the first accused, Mayur Jayantilal Anam
1
SLP (Crl) No 3155 of 2018; and SLP (Crl) No 3156 of 2018
H 2
SLP (Crl) No 2617 of 2018; and SLP (Crl) No 2628 of 2018
M/S. SUPREME BHIWANDI WADA MANOR INFRA. PVT LTD v. THE 229
STATE OF MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]

(“A1”),and the fourth accused, Nilesh Dayanand Chumble (“A4”). In A
the two companion appeals, the grant of anticipatory bail by the Sessions
Court to the second accused, Hemant Haribhau Sonawane, (“A2”)and
the third accused, Diwakar Waman Patil (“A3”) was in issue.
5. The appellant is a company incorporated under the Companies
Act 1956 and engages in infrastructure projects. The appellant was awarded B
a contract for constructing a road which has been described as:
“bypass work of Vishwabharati Phata – Bhinar-Vadapa Junction
(km. 0/000 to 7/900, total length 7.90 km), Bhiwandi Taluka, Dist.
Thane.”
The four accused who are impleaded as the second respondents C
to these appeals were engaged by the appellant as its employees. In
terms of the statement of the complainant under Section 161 of the CrPC,
A1 was employed in the capacity of a General Manager.A2, A3 and A4
were employed as Liaison Officer, Liaison Assistant and Senior Liaisoning
Officer, respectively. It has been alleged that their responsibilities included D
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.
6. The appellant filed a complaint with the Powai Police Station,
Mumbai following the discovery of an alleged fraud. Thereafter, it filed a
E
complaint before the Court of the Magistrate at Andheri in Mumbai.
7. On 11 May 2016, the Metropolitan Magistrate at the 66th Court,
Andheri, Mumbai passed an order under Section 156(3) of the CrPC
directing the police to investigate into the complaint. For convenience of
reference, the order of the Magistrate is extracted below:
F
“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 G
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,
H
230 SUPREME COURT REPORTS [2021] 7 S.C.R.

A accused Nos 1 and 2 in collusion with accusd 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 cognizable in nature,
B
investigation by…required in this matter. Accordingly, I passed
following order.
ORDER
1 Present matter be sent for investigation to Powai police
C station.
2 Concern police official, is hereby directed to investigate the
matter under Section 156(3) of Criminal Procedure Code,
and filed the report at the earliest.
3 There is only prayer to send matter for investigation hence it
D is treated as miscellaneous application and accordingly, it is
finally disposed off. “
8. Following the order of the Magistrate, a First Information Report
being FIR No 2 of 2016 was registered on 24 May 2016 with the Powai
Police Station for alleged offences under Sections 418,419,420, 405,
E 467,468, 471,474, 120 B read with Section 34 of the Indian Penal Code.
9. 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 alleged
F that in 2015, the company had handed over the work of disbursing the
land acquisition amounts due to the affected farmer to five employees
including the respondent-accused who are engaged on the job of the road
construction project between Wada and Wadape Junction. It has been
alleged that they made “66 fake and bogus tenants”, without attaching
necessary papers of land acquisition with an intention to obtain personal
G
gain, resulting in a fraud of Rs 87,76,755. Details of the amounts which
were allegedly misappropriated were furnished together with the complaint.
Moreover, it was alleged that the accused had with the help of twelve
farmers prepared 7/12 extracts, measurement sheets and power of attorney
documents and had withdrawn an amount of Rs 68 lacs (approx.)by
H cheque for the purpose of giving compensation to the farmers.However,
M/S. SUPREME BHIWANDI WADA MANOR INFRA. PVT LTD v. THE 231
STATE OF MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]

it is alleged that the amount was misappropriated. Furthermore, it has A
been alleged that between 2014 and 2015, the accused had fabricated
certificates of the Gram Panchayat Vadpe, Bhinar, Gorsai, Nimbavali
and Kawadin respect of village lands and forest land showing the names
of nine persons and deposited an amount of around Rs 1.57 crores against
their names fraudulently. It has been further alleged that the accused in
B
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.
10. Two of the accused named in the FIR moved the Sessions C
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 D
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 toA1 and A4. In E
consequence it disposed of the petitions questioning the grant of anticipatory
bail by the Sessions Court toA3 and A4.
12. The High Court has justified the grant of anticipatory bail in a
brief order of two paragraphs which it would be convenient to extract at
the present stage. The High Court held: F
“2. The record indicates that the complainant Mr. Uday Joshi has
filed a complaint bearing C.C.No.506/SW/2015 in the Court of
Metropolitan Magistrates, 66'h Court at Andheri, Mumbai and an
Order under Section 153(3) has been passed by the concerned
Court. In pursuance of the said Order, the present Crime No.02/ G
2016 has been registered by the Powai Police Station. The police
are seeking custody of the applicants 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 indicates that, the complaint
filed by first informant was supported with 1 is affidavit elated
06.02.2016 and the mandate of law as contemplated under Section H
232 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 200 of Cr.P.C. i.e. the said complainant has not been examined on
oath by the concernedMagistrate.
3. 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 ofissuance of the said Order passed under Section 156(3)
B of the Cr.P.C. bythe concerned Magistrate. Apart from the said
fact, as has been held by theHon'ble Supreme Court in the case of
Siddharam Satlingappa Mhetre Vs. State of Maharashtra &Ors.,
reported in AIR 2011 Supreme Court 312, andinparticular in
paragraph 112(v) of the said decision, this Court is of theview that,
the accusations have been made against the applicants only withthe
C object of injuring or humiliating the applicants •by arresting them.”
The complainant is in appeal before this Court.
13. Notice was issued initially on 28 March 2018. In pursuance of
the order issuing notice, both the State of Maharashtra and the respondent
D – accused have entered appearance. We have heard counsel.
14. On behalf of the appellants, it has been urged by Mr Dinesh
Tiwari and Ms Jaikriti S Jadeja, learned Counsel that
(i) The High Court while grantinganticipatory bail failed to even
prima facie notice the nature and gravity of the allegations
E 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 No 2 of 2016 was registered by the Powai Police Station
on 24 May 2016;
F
(iii) The order of the High Court proceeds on the basis that the
mandate of Section 200 of the CrPC 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
G 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
H the power under Section156(3);
M/S. SUPREME BHIWANDI WADA MANOR INFRA. PVT LTD v. THE 233
STATE OF MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]

(v) In any event there was no challengeto the order passed by A
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 B
result of which the investigation has been thwarted.
15. On the other hand, Mr R R Deshpande, learned Counsel
appearing on behalf of the accused submitted that
(i) The accused were protected from arrest by an interim order
dated 16 February 2017and 24 January 2017 and they were C
called for investigation on several occasions;
(ii) The accused having co-operated in the investigation, there
would be no justification to interfere with the grant of
anticipatory bail in pursuance of the orders which have been
passed about three and a half years ago; and D
(iii) The view which has been taken by the High Court on the
interpretation of the provisions of Section 202 is correct, having
regard to the 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 E
Section 200 of the CrPC.
These submissions have been adopted in the other cases as well.
16. The primary basis on which the High Court has allowed the
applications under Section 438 is that the complaint filed by the first
F
informant was supportedby an affidavit dated 6 February 2016. However,
the High Court held that the mandate of Section 200 of the CrPC of
examining the complainant on oath has not been fulfilled by the Magistrate.
On this basis, the High Court held that this raises a serious doubt about
the validity of the order which has been passed under Section 156(3).
17. There is a serious error in the view of the Single Judge. First G
and foremost, the Magistrate’s order under Section 156(3) was not under
challenge before the High Court and has attained finality. The High Court
was in error in raising a doubt aboutthe correctness of the order under
section 156(3) passed by the Metropolitan Magistrate on 11 May 2016 in
the course of considering the complaint filed by the complainant. Secondly, H
234 SUPREME COURT REPORTS [2021] 7 S.C.R.

A the position in law as set out in the order of the Single Judge does not
accord with the principles which have been consistently enunciated in the
decisions of this 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:
B “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
C 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
D 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
E 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,
F 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
G 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
H complained of is triable exclusively by the Court of Session, he
M/S. SUPREME BHIWANDI WADA MANOR INFRA. PVT LTD v. THE 235
STATE OF MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]

shall call upon the complainant to produce all his witnesses and A
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.”
B
18. These provisions have been interpreted in a judgment of two
learned judges of this Court in Suresh Chand Jain v. State of MP 3.
After adverting to the provision of Section 156(3) 4, Justice KT Thomas
speaking for the two judge Bench observed:
“8. The investigation referred to therein is the same investigation, C
the various steps to be adopted for it have been elaborated in Chapter
XII of the Code. Such investigation would start with making the
entry in a book to be kept by the officer in charge of a police
station, of the substance of the information relating to the
commission of a cognizable offence. The investigation started
thereafter can end up only with the report filed by the police as D
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. E
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)
F
Dealing specifically with the provisions of Chapter XV, this Court
observed that once the Magistrate takes cognizance of an offence, the
3
(2001) 2 SCC 628
4
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 G
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.” H
236 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 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:
B “9. 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
C 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
D 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.”
E
The legal position has been summarized in thus:
“10. 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
F 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
G 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
H
M/S. SUPREME BHIWANDI WADA MANOR INFRA. PVT LTD v. THE 237
STATE OF MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]

by the complaint because that police officer could take further A
steps contemplated in Chapter XII of the Code only thereafter.”
19. The principle enunciated in the above decision has been followed
in several decisions of this Court. In Dilawar Singh v. State of Delhi4,
the decision in Suresh Chand Jain (supra)was cited with approval. In
Tilak Nagar Industries Limited v. State of Andhra Pradesh5, a two B
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 Pradesh6,Justice C
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 D
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 E
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 F
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 the
Magistrate under Section 156(3) of the Code to order investigation
by the police have not been touched or affected by Section 202 G
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
4
(2007) 12 SCC641
5
(2011) 15 SCC 571
6
(2013) 6 SCC 384 H
238 SUPREME COURT REPORTS [2021] 7 S.C.R.

A 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 this
Court in Rameshbhai Pandurao Hedau v. State of Gujarat [(2010)
B
4 SCC 185 : (2010) 2 SCC (Cri) 801] . The distinction between
these two powers had also been finally stated in the judgment of
this Court in Srinivas Gundluri v. SEPCO Electric Power
Construction Corpn. [(2010) 8 SCC 206 : (2010) 3 SCC (Cri) 652]
wherein the Court stated that : (SCC p. 218, para 23)
C “23. … 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.”
D 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.”
21. The High Court has evidently not been apprised of the above
judgments for, if it was, it would not have proceeded to formulate a principle
E which is contrary to the line of precedent of this Court.
22. The High Court, in granting anticipatory bail under Section 438
in the first two appeals and following that order in disposing of the challenge
to the order of the Sessions Judge in the companion appeals, has evidently
lost sight of the nature and gravity of the alleged offence. This Court in
F Sushila Aggarwal v. State (NCT of Delhi) 7 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
G 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.

7
H (2020) 5 SCC 1
M/S. SUPREME BHIWANDI WADA MANOR INFRA. PVT LTD v. THE 239
STATE OF MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]

92.4. Courts ought to be generally guided by considerations such A
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
B
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 Telangana8 this Court has
held:
C
“9. 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 D
Sessions Court would be justified in cancelling the bail.”
23. There are serious allegations against the respondent – 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 E
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.
24. We accordingly allow these appeals and set aside the orders of F
the High Court. The orders granting anticipatory bail under Section 438
to the respondent-accused shall accordingly stand set aside. The appeals
are disposed of in the above terms.
25. Pending application(s), if any, stand disposed of.
G
Devika Gujral Appeals allowed.

8
(2020) 2 SCC 743 H