Supreme Court Contempt Ruling on Anticipatory Bail Violation by Gujarat Police and Magistrate, August 2024

Case Details

This case originated from a Contempt Petition (Civil) Diary No. 1106 of 2024, filed within Special Leave Petition (Criminal) No. 14489 of 2023, before the Supreme Court of India. The bench comprised Justices B.R. Gavai and Sandeep Mehta, and the judgment was delivered on 7 August 2024. The proceedings were instituted under Article 129 of the Constitution of India and Section 12 of the Contempt of Courts Act, 1971, alleging wilful disobedience of the Court's interim order granting anticipatory bail. The core statutory setting involved the interpretation of powers under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) concerning anticipatory bail and the permissible scope of police custody remand thereafter.

Facts

The petitioner, Tusharbhai Rajnikantbhai Shah, was an accused in FIR No. 11210068230266 dated 21 July 2023, registered at Vesu Police Station, Surat, for offences under Sections 420 and 120(B) of the Indian Penal Code. The allegation was that he, along with others, had received Rs. 1.65 crores in cash from the complainant for the sale of 15 shops but failed to hand over possession. After the Sessions Court and the Gujarat High Court rejected his anticipatory bail applications, the petitioner approached the Supreme Court. On 8 December 2023, the Supreme Court granted interim anticipatory bail, directing that in the event of arrest, he be released on bail upon executing a personal bond, and further directing him to cooperate with the investigation. On 11 December 2023, the petitioner appeared before the Investigating Officer (IO), Police Inspector R.Y. Raval (Respondent No. 4), was formally arrested and immediately released on bail as per the Supreme Court's order. Subsequently, the IO served a notice requiring the petitioner's presence before the Magistrate for "the matter of remand." On 13 December 2023, despite the petitioner's counsel producing the Supreme Court's order and objecting, the 6th Additional Chief Judicial Magistrate, Surat, Ms. Deepaben Sanjaykumar Thakar (Respondent No. 7), granted police custody remand for three days, observing that the Supreme Court's order did not prohibit such remand. The petitioner alleged custodial torture during this remand. Upon the remand period ending on 16 December 2023, the Magistrate, instead of releasing him pursuant to the existing bail order, compelled him to file a fresh regular bail application under Section 437 CrPC, which was granted, leading to his release only on 18 December 2023—a delay of nearly 48 hours. The petitioner's complaint regarding custodial violence was later dismissed by the same Magistrate without following the procedure under Sections 200 and 202 CrPC, an order later set aside by the Gujarat High Court. The petitioner then filed the present contempt petition against the police officials and the Magistrate.

Issues

The Supreme Court framed and addressed the following legal questions: (1) Whether the respondents, particularly the Investigating Officer (Respondent No. 4) and the Magistrate (Respondent No. 7), committed contempt of the Supreme Court's order dated 8 December 2023 by seeking and granting police custody remand during the currency of the interim anticipatory bail protection. (2) Whether an Investigating Officer has the liberty to seek police custody remand of an accused after anticipatory bail has been granted by a competent court, and whether the purported long-standing practice in the State of Gujarat of routinely incorporating such a condition in anticipatory bail orders is legally permissible. (3) Whether the Magistrate's exercise of power to grant police custody remand was justified on the facts, particularly in a case where the FIR prima facie disclosed a civil dispute. (4) Whether the Magistrate's handling of the accused's complaint of custodial violence and her subsequent dismissal of his private complaint were legally sound and relevant to the contempt proceedings.

Decision

The Supreme Court allowed the contempt petition, holding Respondents No. 4 (IO R.Y. Raval) and No. 7 (Magistrate Deepaben Thakar) guilty of contempt of the Court's order dated 8 December 2023. The contempt notices issued against other respondents, including the Commissioner of Police and the Deputy Commissioner of Police, were discharged. The Court also made absolute the interim anticipatory bail granted to the petitioner. The reasoning of the Court on each distinct issue is elaborated below.

On the first issue of contempt, the Court held that the order dated 8 December 2023 was unambiguous and granted absolute interim protection, mandating the petitioner's release on bail upon any arrest. There was no stipulation in the order permitting the accused to be remanded to police custody. The Court found that the Investigating Officer (Respondent No. 4) acted in "flagrant defiance and gross contempt" by applying for police custody remand. The portrayal in the remand application that the petitioner was not cooperating was "totally cooked up." The Court noted that the petitioner had appeared before the IO promptly on 11 December 2023, and the notice for remand dated 12 December 2023 did not even allege non-cooperation. The Court reasoned that during the subsistence of the Supreme Court's order, the IO had no authority to seek police custody, and such an application could not have been entertained without first seeking permission from the Supreme Court itself, as indicated in the precedent of Sushila Aggarwal.

Regarding the Magistrate (Respondent No. 7), the Court held her equally guilty of contempt. Her order granting remand was based on a misinterpretation that the Supreme Court's order did not preclude such remand. The Court emphatically rejected this interpretation, stating the order "allowed only one interpretation i.e. the petitioner had to be released on bail in the event of arrest." The Magistrate's action in granting remand was "clearly in teeth of this Court's order." Furthermore, her contumacious conduct extended to contributing to the petitioner's illegal detention for almost 48 hours after the remand period ended, as she failed to release him under the original bail order and instead processed a fresh bail application. The Court also found her explanation—that she acted under a misconception due to a prevailing practice in Gujarat—to be "in disregard to the order passed by this Court" and unacceptable.

On the second issue concerning the legality of seeking police custody after anticipatory bail, the Supreme Court delivered a significant ruling on the practice prevalent in Gujarat. The Court referred to the Constitution Bench judgment in Sushila Aggarwal v. State (NCT of Delhi) and held that neither Section 438 CrPC nor the corresponding Section 482 of the new Bhartiya Nagarik Suraksha Sanhita, 2023, contemplates a blanket liberty for the Investigating Officer to seek police custody remand after anticipatory bail is granted. The Court reiterated that the power to grant anticipatory bail must be exercised with great circumspection and not routinely. If, after applying strict parameters, a court grants anticipatory bail, allowing the IO to subsequently seek police custody would "virtually negate and frustrate the very purpose" of the anticipatory bail order. The Court explicitly condemned the practice in Gujarat, where courts routinely impose a condition in anticipatory bail orders permitting the IO to seek police custody remand, holding it to be in "direct contravention" of the ratio in Sushila Aggarwal. Consequently, the Court impliedly overruled the Division Bench judgment of the Gujarat High Court in Sunilbhai Sudhirbhai Kothari v. State of Gujarat, which had upheld such a practice.

On the third issue regarding the justification for police remand on the facts, the Court applied principles of criminal jurisprudence that the power to grant police remand must not be exercised routinely. The Magistrate must apply judicial mind to ascertain a genuine need. The Court found that in the present case, the FIR itself pertained to a dispute arising from an oral agreement for the sale of property, which "prima facie appears to be of a civil nature." In such a context, and given the lack of any bona fide demonstrated need for custodial interrogation (the State must show more than a prima facie case for custodial investigation, as held in Ashok Kumar v. Union Territory of Chandigarh), the Magistrate ought not to have "toed the line of the Investigating Officer." The remand application itself contained material misrepresentations, such as incorrectly stating that cheques issued by the accused needed recovery, while the FIR stated the cheques were given by the complainant to the accused. The Court also noted the IO's failure to question the complainant about the huge cash transaction alleged, which was in contravention of the Income Tax Act and PMLA, indicating a collusive attempt to give a civil dispute a criminal colour.

On the fourth issue related to the complaint of custodial violence, the Court found the Magistrate's conduct indicative of bias and a pre-determined mind, which aggravated her contumacious actions. When the petitioner complained of torture upon his production on 16 December 2023, the Magistrate personally examined his feet and recorded that no injury was found. The Court held that the mandatory procedure under Section 54 CrPC required her to have the accused medically examined, not to conduct a personal examination. Furthermore, after a different Magistrate had taken cognizance of the petitioner's formal private complaint and posted it for verification (which entails recording statements under Sections 200 and 202 CrPC), Respondent No. 7 usurped the matter and dismissed it under Section 203 CrPC without recording any witness statements. This was done in "sheer disregard" of the earlier order and was rightly set aside by the High Court. This conduct, the Court held, fortified the finding of a biased approach.

In its final conclusion, the Court discharged the contempt notices against the senior police officials (Respondents No. 2 & 3) as their direct involvement in the violation was not established, though it noted their failure to ensure functional CCTV cameras in the police station could be a subject of departmental enquiry. The Court held Respondents No. 4 and 7 guilty of contempt. The connected SLPs were disposed of by making the interim anticipatory bail absolute till the culmination of the trial.

Quotes

"There was no such stipulation in the order under contempt dtd. 08.12.2023... that the accused could be remanded to police custody... respondent No.4, acted in flagrant defiance and gross contempt of the aforesaid order by applying for police custody remand of the petitioner."

"The SLP filed on behalf of the petitioner had not been finally decided and was still pending adjudication, when the remand application was entertained and hence, there was no occasion for her to have proceeded to interpret this Court's order in a fanciful manner... The action of the respondent No.7 in granting police custody remand of the petitioner and in failing to release him upon completion of the said period is clearly in teeth of this Court's order dtd. 08.12.2023 and tantamounts to contempt."

"Neither s.438, CrPC nor s. 482, BNSS, 2023 contemplate any such liberty to the IO – The practice prevalent in the State of Gujarat that the Courts while dealing with the anticipatory bail application routinely impose the restrictive condition whereby, the IOs are granted blanket permission to seek police custody remand of the accused... is in direct contravention to the ratio of the Constitution Bench judgment of this Court in the case of Sushila Aggarwal..."

"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 State would have to show or indicate more than prima facie case as to why custodial investigation of the accused is required for the purpose of investigation."

"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."