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Synopsis

The Supreme Court on August 7, 2024, held a Gujarat police Inspector and a judicial officer guilty of contempt of court for allowing police remand of an accused in a cheating case despite anticipatory bail granted by the court.

A bench of Justices B R Gavai and Sandeep Mehta declared that the practice prevalent in the state of Gujarat of routinely imposing restrictive conditions on anticipatory bail pleas, and allowing the police blanket permission to seek police custody remand of the accused, was in direct contravention of the 2020 Constitution bench judgment of the top court in Sushila Aggarwal Vs State (NCT of Delhi).

"The power to grant anticipatory bail is not to be exercised in a routine manner and the courts are expected to use this provision with a great degree of circumspection. Once, a court bearing in mind the strict parameters applicable to grant of anticipatory bail exercises such power, then in such a situation, giving a handle to the Investigating Officer to seek police custody remand of the accused, would virtually negate and frustrate the very purpose behind the order of anticipatory bail," the bench said.

The court directed R Y Raval, then Police Inspector, Vesu Police Station, Surat and Deepaben Sanjaykumar Thakar, then Additional Chief Judicial Magistrate, Surat to appear before it on September 2, 2024 for proceedings on quantum of sentence after holding them guilty of having committed contempt of the top court’s order of December 8, 2023. 

Surat resident Tusharbhai Rajnikantbhai Shah was then granted anticipatory bail in a cheating case but he was remanded in police custody, and allegedly threatened to extort Rs 1.65 crore from him in the presence of the complainant in an FIR lodged on July 21, 2023. He was arrested when he went to the police station on December 11, 2023 to join the investigation. 

Dealing with the contempt petition filed by Shah, the bench said, the language of the order was clear and unambiguous, hence, none of the contemnors-respondents could have entertained any doubt in their minds nor was there any scope for the interpretation that the petitioner could be remanded to police custody during the currency of the interim order of December 8, 2023.

The detention of the accused till December 18, 2023 was absolutely unconstitutional and contrary to the letter and spirit of Articles 20 and 21 of the Constitution, the bench said.

"Criminal jurisprudence requires that before exercising the power to grant police custody remand, the courts must apply judicial mind to the facts of the case so as to arrive at a satisfaction as to whether the police custody remand of the accused is genuinely required. The courts are not expected to act as messengers of the investigating agencies and the remand applications should not be allowed in a routine manner," the bench said.

In its judgment, the bench noted that the police inspector acted in flagrant defiance and gross contempt of the court’s order by applying for police custody remand of the petitioner herein. 

If at all, by any stretch of imagination, the Investigating Officer felt genuine and bona fide requirement to seek police custody remand of the petitioner, then the proper course of action would have been to move this court for seeking appropriate directions rather than moving the Magistrate by way of the remand application, which was tainted, malicious and a contemptuous act on the face of the record, the bench said.

It also said that the mandate to install and ensure functionality of CCTV cameras in all police stations by virtue of the top court’s judgment in the case of Paramvir Singh Saini had not been complied with in letter and spirit by the concerned police officials, which would be dealt with separately in departmental proceedings against the police officers.

"The portrayal that accused-petitioner was not cooperating in the investigation was totally cooked up and a clear attempt to draw wool over the Court’s eyes," the bench said.

The court said non-cooperation by the accused is one matter and the accused refusing to confess to the crime is another. 

"There would be no obligation upon the accused that on being interrogated, he must confess to the crime and only thereafter, would the Investigating Officer be satisfied that the accused has cooperated with the investigation. As a matter of fact, any confession made by the accused before a police officer is inadmissible in evidence and cannot even form a part of the record," the bench said.

The court held that there was not even a shred of bona fide in the actions of the Investigating Officer while seeking police custody remand of the accused on the purported ground of non-cooperation in investigation. The exercise of seeking police custody remand during currency of the interim protection granted to the petitioner was in sheer defiance of this Court’s order and tantamounts to contempt on the face of the record, it added.

The court also said the explanation offered by the ACJM, that the order granting police custody remand of the petitioner was passed in the bona fide exercise of jurisdiction, based on a genuine misunderstanding of the legal position did not appeal to it. 

The bench noted the judicial officer acted with bias and in a high-handed manner. 

"The reason offered by her that she was acting under a misconception owing to settled and prevailing practice in the State of Gujarat, is clearly in disregard to the order passed by this court," the bench said.

The court said that the FIR against the accused-petitioner was pertaining to a dispute which prima facie appeared to be of a civil nature, arising out of an oral agreement on sale of property and hence, the Magistrate ought not to have toed the line of the Investigating Officer while granting police custody remand of the accused-petitioner.

"As a matter of fact, the application seeking police custody remand of the petitioner could not have been entertained without seeking permission of this court as observed in the case," it said.

The court also said the judicial officer seemed to have acted in defense of the police officials when she made a note on the complaint of custodial violence made by the petitioner on December 16, 2023, that after personally examining the feet of the accused, she did not find any injury thereupon. 

"Law requires that the moment the accused had made a complaint of torture in police custody, it was incumbent upon the concerned Magistrate to have got the accused subjected to medical examination as per the mandate of Section 54 CrPC," the bench said.

In the case, the court discharged Ajay Kumar Tomar, then Commissioner of Police, Surat, Vijaysinh Gurjar, then Deputy Commissioner of Police, Surat and Abhishek Vinodkumar Goswami, who filed the FIR against the petitioner.

Case Title: Tusharbhai Rajnikantbhai Shah Vs Kamal Dayani & Ors