Dr Dhananjaya Y Chandrachud, J 1 This batch of four appeals involves similar issues and were 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 Signature Not Verified Digitally signed by Chetan Kumar Date: 2021.07.28 15:18:54 IST Reason: applications under Section 438 of the Code of Criminal Procedure 1973 (“ CrPC ”) were allowed.

1 2 The details of these applications are:

3 The order passed by the High Court on the above applications under Section 438 of the CrPC has been questioned by the complainant in the appeals arising out of the first two Special Leave Petitions1 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 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 (―A1‖), and the fourth accused, Nilesh Dayanand Chumble (―A4‖). In 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. 1 SLP (Crl) No 3155 of 2018; and SLP (Crl) No 3156 of 2018 2 SLP (Crl) No 2617 of 2018; and SLP (Crl) No 2628 of 2018 2 5 The appellant is a company incorporated under the Companies Act 1956 and engages in infrastructure projects. The appellant was awarded a contract for constructing a road which has been described as:

6 The appellant filed a complaint with the Powai Police Station, Mumbai following the discovery of an alleged fraud. Thereafter, it filed a 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:

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 , 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 that in 2015, the company had handed over the work of disbursing the land acquisition amounts due to the affected 4 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 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 cheque for the purpose of giving compensation to the farmers. However, it is alleged that the amount was misappropriated. Furthermore, it has been alleged that between 2014 and 2015, the accused had fabricated certificates of the Gram Panchayat Vadpe, Bhinar, Gorsai, Nimbavali and Kawad in 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 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 Court for the grant of anticipatory bail. By its orders dated 13 February 2017 and 16 February 2017, the 5 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 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 to A1 and A4. In consequence it disposed of the petitions questioning the grant of anticipatory bail by the Sessions Court to A3 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:

13 Notice was issued initially on 28 March 2018. In pursuance of the order issuing notice, both the State of Maharashtra and the respondent – 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 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 No 2 of 2016 was registered by the Powai Police Station on 24 May 2016;

(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 judgments of this Court which have clarified the legal position that the Magistrate is justified 7 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) ;

(v) In any event 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.

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 2017 and 24 January 2017 and they were 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

(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 8 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. 16 The primary basis on which the High Court has allowed the applications under Section 438 is that the complaint filed by the first informant was supported by 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 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 about the 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, 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:

18 These provisions have been interpreted in a judgment of two learned judges of this Court in Suresh Chand Jain v. State of MP3 . After adverting to the provision of Section 156(3) 4 , Justice KT Thomas speaking for the two judge Bench observed:

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 judge Bench of this Court held that:

20 In Anju Chaudhary v. State of Uttar Pradesh6, Justice 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 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:

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 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 Sushila Aggarwal v. State (NCT of 14 Delhi )7 has enunciated the considerations that must govern the grant of anticipatory bail in the following terms:

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 v. The State of Telangana8 this Court has held :

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 acts of fraud and misappropriation of funds, as explained earlier. Having regard to the seriousness of the allegations no case for 7 (2020) 5 SCC 1 8 (2020) 2 SCC 743 15 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 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.

……….….....................................................J. [Dr Dhananjaya Y Chandrachud] ..…..….….....................................................J. [M R Shah] New Delhi;

July 26, 2021 16