No Need To Examine Complainant Before Ordering Investigation Under Section 156(3) CrPC : Supreme Court

The Supreme Court has reiterated that there is no requirement of examining the complainant on oath under Section 200 of the Code of Criminal Procedure(CrPC) before a Judicial Magistrate orders police investigation under Section 156(3) CrPC.

Holding so, the Supreme Court set aside an order passed by the Bombay High Court which had granted anticipatory bail on the ground that order of magistrate to direct registration of FIR under Sec 156(3) CrPC was given without examining the complainant on oath as under Section 200 CrPC.

The Supreme Court held that the High Court's view that procedure under Section 200 CrPC had to be followed before Section 156(3) order was erroneous in law.

The Top Court referred to a line of precedents which held that Section 156(3) CrPC is a pre-cognizance stage.

A division bench comprising Justices DY Chandrachud and MR Shah delivered the verdict in the cases M/s Supreme Bhiwandi Wada Manor Infrastructure Pvt Ltd vs State of Maharashtra and another and connected cases.

The appeals were filed against orders passed by the Bombay High Court on December 18, 2017, granting anticipatory bail to some accused on the ground that the Magistrate ordered the registration of FIR under Section 156(3) CrPC without examining the complainant on oath under Section 200 CrPC.

"The record indicates that, the complaint filed by first informant was supported with his affidavit dated 06.02.2016 and the mandate of law as contemplated under Section 200 of Cr.P.C. i.e. the said complainant has not been examined on oath by the concerned Magistrate.

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 of issuance of the said Order passed under Section 156(3) of the Cr.P.C. by the concerned Magistrate", the order passed by Justice AS Gadkari of High Court had observed.

The Supreme Court overturned the above view of the Bombay High Court as contrary to settled principles.

"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", the Court quoted from the judgment authored by Justice KT Thomas in Suresh Chand Jain v. State of MP (2001) 2 SCC 628.

The principle enunciated in the above decision has been followed in several  decisions such as Dilawar Singh v. State of Delhi (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 etc.

"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", the Court observed.

Further, the Court observed that on facts as well, anticipatory bail should not have been granted, as grave allegations of fraud and misappropriation of funds were involved.

"The High Court has erred both in law and in its evaluation of the facts", the Supreme Court said setting aside the anticipatory bail granted by the High Court.

Case Details

Title :  M/s Supreme Bhiwandi Wada Manor Infrastructure Pvt Ltd vs State of Maharashtra and another

Bench : Justices DY Chandrachud and MR Shah

Appearances : Advocates Dinesh Tiwari and Jaikriti S Jadeja for appellants; Advocate RR Deshpande for respondents.

Citation : LL 2021 SC 330

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