1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 66 OF 2010 Amarshi Manshi Nasar .. Applicant V/s State of Maharashtra .. Respondent Mr. Aabad H. Ponda with Mr. Jayesh Kanani & Mrs. Pravina Kanani for the applicant. Mr. Y.S. Shinde, A.P.P. for the State. CORAM : D.G. KARNIK, J. DATE : 12TH JANUARY 2010 P.C. : 1. By this application, the applicant seeks bail in connection with MECR No.23/2009 registered by M.R.A. Marg Police Station, Mumbai. 2. The offence alleged is that of cheating and criminal breach of trust punishable under sections 406, 408, 409 and 420 of the I.P.C. The applicant was a director of M/s Genelec Ltd. (for short “the Company”) which is alleged to have been cheated. The offence is alleged to have taken place in the year 2007 or thereabout. No FIR was lodged. But an application was 2 made by another director of the Company to the Magistrate for an order of investigation under section 156(3) of the Cr. P.C. An order under section 156(3) of the Cr. P.C. was passed exparte. During the course of investigation, the applicant has been arrested on 19th December 2009 and is in custody since then. 3. It appears that there are two groups between the directors of the Company which has gone under the B.I.F.R. According to the applicant, he has been wrongly implicated on account of rivalry. Other directors have already been granted interim anticipatory bail and only the present applicant has been arrested. 4. That apart, in Panchabhai Popotbhai Butani & Ors. v. State of Maharashtra & Ors. (Criminal Writ Petition No.270 of 2009 decided on 10th December 2009 along with other batch of writ petitions), a Full Bench of this Court has framed and answered question no. (i) in the following terms: “Question No.(i) Whether in absence of a complaint to the police, a complaint can be made directly before a Magistrate? Answer: Normally, a person should invoke the provisions of Section 154 3 of the Code before he takes recourse to the power of the Magistrate competent to take cognizance under Section 190 of the Code, under Section 156(3). At least an intimation to the police of commission of a cognizable offence under Section 154(1) would be a condition precedent for invocation of powers of the Magistrate under Section 156(3) of the Code. We would hasten to add here that this dictum of law is not free from exception. There can be cases where noncompliance to the provisions of Section 154(3) would not divest the Magistrate of his jurisdiction in terms of Section 156(3). There could be cases where the police fail to act instantly and the facts of the case show that there is possibility of the evidence of commission of the offence being destroyed and/or tampered with or an applicant could approach the Magistrate under Section 156(3) of the Code directly by way of an exception as the Legislature has vested wide discretion in the Magistrate.” The Full Bench has held that normally a person should invoke the provisions of section 154 of the Code of Criminal Procedure (for short “the Code”) before he takes recourse to the power of the Magistrate under section 156(3) of the Code. In the present case, there is no material on record that any FIR was registered or even an attempt was made to register an FIR as 4 provided by section 154(1) of the Code. The present case does not fall in the exception as carved out by the Full Bench as the case was not urgent and offence alleged to have been committed in the year 2007 and the application under section 156(3) of the Code was made before the Magistrate in October 2009. 5. In the circumstances, the legality of the order passed by the Magistrate is in doubt and would be required to be considered at the appropriate stage before the appropriate court. 6. In the facts and circumstances of the case, in my view, the applicant is entitled to bail. Hence, I pass the following order: ORDER The applicant be released on bail on furnishing a personal bond of Rs.30,000/- with one or two sureties to make up the aggregate amount of Rs.30,000/- subject to a condition that the applicant shall not tamper with the prosecution evidence and shall cooperate with the investigation and attend the police station for interrogation as and when summoned by the police. (D.G. KARNIK, J.)