TaxTMI 
TaxTMI 
2021 (7) TMI 1279
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by the High Court on the above applications Under Section 438 of the Code of Criminal Procedure has been questioned by the complainant in the appeals arising out of the first two Special Leave Petitions [SLP (Crl.) No. 3155 of 2018; and SLP (Crl.) No. 3156 of 2018] Under Article 136 of the Constitution. In the remaining two appeals (arising out of Special Leave Petitions [2SLP (Crl.) No. 2617 of 2018; and SLP (Crl.) No. 2628 of 2018]) 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. 5. The Appellant is a company incorporated unde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is cognizable in nature, investigation by...required in this matter. Accordingly, I passed following order. ORDER 1. Present matter be sent for investigation to Powai police station. 2. Concern police official, is hereby directed to investigate the matter Under Section 156(3) of Code of Criminal Procedure, and filed the report at the earliest. 3. There is only prayer to send matter for investigation hence it 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, 467, 468, 471, 474, 120B 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 farmer to f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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: 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. 02/2016 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 Code of Criminal Procedure 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 200 of Code of Criminal Procedure i.e. the said complainant has not been examined on oath by the concerned Magistrate. 3. The basic tenet of law as contemplated Under Section 200 of Code of Criminal Procedure has not been complied with, it raises a serious doubt about the validity of issuance of the said Order passed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tected 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 be ordered only after the complainant's statement has been recorded on oath Under Section 200 of the Code of Criminal Procedure. 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 Code of Criminal Procedure of examining the complainant on oath has not been fulfilled by the Magistrate. On this basis, the High Court h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 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 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 complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and 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. 18. These provisions have been interpreted in a judgment of two learned judges of this Court in Suresh Chand Jain v. State of MP (2001) 2 SCC 628. After adverting to the provision of Section 156(3) [Section 156 of the Code of Criminal Procedure is extracted below: "156. Police officer's po....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 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 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 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. 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 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng 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 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 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) 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) 23. ... ....