A complaint, an affidavit, a missing oath — and anticipatory bail granted.

A complaint, an affidavit, and a missing oath: How a procedural slip saved two men from arrest

Nilesh Dayanand Chumble and Mayur Jayantilal Anam were not yet arrested. But they could see it coming. A criminal complaint had been filed against them before the Metropolitan Magistrate, 66th Court, Andheri, Mumbai. The Magistrate had passed an order under Section 156(3) of the Code of Criminal Procedure, directing the Powai Police Station to investigate. Crime No.02/2016 was registered. The police wanted custody. The two men approached the Bombay High Court for anticipatory bail. What they got was not just interim protection — but a pointed judicial observation that the very foundation of the case against them was procedurally unsound.

The complaint that skipped a step

The complainant, Uday Joshi, had filed CC No.506/SW/2015 before the Metropolitan Magistrate. The complaint was supported by an affidavit. But here's the catch: the Magistrate did not examine Joshi on oath before passing the order under Section 156(3) CrPC. Section 200 CrPC mandates that a Magistrate taking cognizance of a complaint must examine the complainant on oath. That step was skipped. The Magistrate simply looked at the affidavit and directed the police to investigate.

Justice A.S. Gadkari, sitting singly, found this troubling. "The Magistrate has not examined the complainant on oath as required under Section 200 of Cr.P.C.," the Court observed. "The complaint is supported by an affidavit. In the absence of examination of complainant on oath, the order passed by the learned Magistrate under Section 156(3) of Cr.P.C. directing the police to investigate the crime raises a serious doubt about its validity."

This was not a minor oversight. The Court noted that the Magistrate's order was the sole basis for the registration of the FIR. If that order was procedurally defective, the entire investigation that followed was built on shaky ground.

What the Supreme Court had already said

The Bombay High Court did not need to break new ground. It turned to a well-known precedent: Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors., reported in AIR 2011 Supreme Court 312. In that case, the Supreme Court had laid down comprehensive guidelines for the grant of anticipatory bail under Section 438 CrPC. Paragraph 112(v) of that judgment was particularly relevant: where accusations are made with the object of injuring or humiliating the applicant by arresting them, anticipatory bail should be granted.

Justice Gadkari applied that principle directly. The Court found that the accusations against Nilesh and Mayur were not made in good faith. They were made with the object of injuring or humiliating them through arrest. The procedural defect in the Magistrate's order only strengthened this conclusion. The applicants were entitled to protection.

The interim orders and the final confirmation

The procedural journey had already seen interim relief. On 24 January 2017, the Bombay High Court granted interim anticipatory bail in Anticipatory Bail Application No.85 of 2017. On 16 February 2017, similar interim protection was granted in Anticipatory Bail Application No.1971 of 2016. The applicants had been attending the police station as a condition of that interim relief.

On 18 December 2017, Justice Gadkari confirmed both interim orders. The condition requiring the applicants to attend the police station was waived. The applications were allowed. The men were free — not just from arrest, but from the burden of reporting to the police station.

The doctrine that mattered

This judgment is not about the merits of the underlying dispute. It is about procedure — and the consequences of ignoring it. The ratio decidendi is straightforward: a Magistrate cannot pass an order under Section 156(3) CrPC directing police investigation on the basis of a private complaint without first examining the complainant on oath under Section 200 CrPC. Failure to comply with this basic requirement raises a serious doubt about the validity of the Section 156(3) order.

This is not a new rule. It is a restatement of a fundamental principle of criminal procedure. But its application in the context of anticipatory bail is significant. The Court used the procedural defect as a factor — not the sole factor, but a significant one — in concluding that the accusations were motivated by intent to injure or humiliate the applicants.

THE PLAY: When challenging an anticipatory bail application, check whether the Magistrate examined the complainant on oath before ordering investigation under Section 156(3) CrPC. If not, that defect can be used to argue that the entire investigation is procedurally tainted and that the accusations are mala fide.

Why this matters in practice

For advocates, this judgment is a reminder that procedural compliance is not optional — even at the stage of taking cognizance of a complaint. A Magistrate who shortcuts the process by relying on an affidavit instead of examining the complainant on oath risks having the entire investigation called into question. For CFOs and founders, the takeaway is equally practical: if a criminal complaint is filed against you or your company, the first thing to check is whether the Magistrate followed the procedure. If the complainant was not examined on oath, you have a strong argument that the FIR itself is suspect.

The judgment also reinforces the protective scope of Section 438 CrPC. Anticipatory bail is not a remedy of last resort. It is available when the accusations are made with the object of injuring or humiliating the applicant through arrest. The Supreme Court's guidelines in Siddharam Satlingappa Mhetre remain the gold standard for evaluating such applications.

The bottom line

If a Magistrate orders investigation under Section 156(3) CrPC without examining the complainant on oath, that order is procedurally defective — and that defect can be the foundation for a successful anticipatory bail application, especially when the accusations appear motivated by intent to injure or humiliate the accused.