HC, in granting anticipatory bail U/s 438 should look into the nature & gravity of the offence: SC

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. (Para 22)

M/S SUPREME BHIWANDI WADA MANOR INFRASTRUCTURE PVT. LTD. V. THE STATE OF MAHARASHTRA & ANR.

Criminal Appeal No. 680 of 2021 @ SLP (Crl) No 3155 of 2018

With

Criminal Appeal No. 681 of 2021 @ SLP (Crl) No 3156 of 2018

With

Criminal Appeal No. 682 of 2021 @ SLP (Crl) No 2617 of 2018

With

Criminal Appeal No. 683 of 2021 @ SLP (Crl) No 2628 of 2018

26th July 2021

The Divisional Bench of Supreme Court consisting of Justice Dr. Dhananjaya Y Chandrachud, and Justice M.R. Shah has allowed the appeal and set aside the orders of the High Court.

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 applications under Section 438 of the Code of Criminal Procedure 1973 (“CrPC”) were allowed.

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 Petitions under Article 136 of the Constitution. In the remaining two appeals (arising out of Special Leave Petitions ) the Single Judge of the High Court has on 18 December 2017 followed the order granting anticipatory bail in the two applications.

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.

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 notices 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 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.

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 be ordered only after the complainant’s statement has been recorded on oath under Section 200 of the CrPC.

After considering submissions made by both the learned counsels, relevant provisions along with case laws, and analyzing the facts of the case the court concluded that:

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. (Para 22)

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 anticipatory bail was made out. The High Court has erred both in law and in its evaluation of the facts. (Para 23)

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. (Para 24)

Subsequently, the appeals are disposed of in the above terms.

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Swadheen Singh