Supreme Court Rebukes Gujarat Magistrate For Remanding Accused Despite SC's Interim Bail; Reserves Judgment On Contempt Plea

To give a brief background, the petitioner, who was named as an accused in an FIR for the offence of cheating, approached the Supreme Court after the Gujarat High Court denied him bail. On December 8, 2023, while issuing notice on his petition, the Court granted him interim anticipatory bail with the condition that he should continue to cooperate with the investigation.

However, it is the petitioner's case that despite the interim anticipatory bail order of the Supreme Court, he was served with a notice on December 12, 2023, directing him to remain present before the Magistrate in response to the police's custody application. The Magistrate remanded him to police custody for four days till December 16. He alleged that while in police custody, he was threatened and beaten.

Following this, the petitioner filed a contempt petition in the Supreme Court.

On January 10, a Bench comprising Justices BR Gavai and Sandeep Mehta issued contempt notices to the Additional Chief Secretary of the Home Department of Gujarat Government, Commissioner of Police and Deputy Commissioner of Police, Surat, Police Inspector of Vesu Police Station. The Court also issued contempt notice to the 6th Additional Chief Magistrate, Surat, who remanded the petitioner to police custody despite the interim order of the Supreme Court.

Previously, the Bench had expressed surprise at the practice followed by Courts in Gujarat of giving the police liberty to seek remand of the accused even while granting anticipatory bail.

During today's hearing, Justice Sandeep Mehta inquired from ASG SV Raju, who appeared for the police commissioner, that since the accused was under the protection of this Court's order when the remand was sought, could the IO(Investigating Officer) have sought his custody?

ASG replied that the IO was wrong, but said that the question was whether the mistake was deliberate.

Does Cooperation mean that the accused must bow down to the investigating officers' desires?

As the arguments unfolded, ASG SV Raju relied on Gurbaksh Singh Sibbia Etc vs State Of Punjab., 1980 AIR 1632. Inter-alia, the following para was read in the Court:

“We are concerned here with a situation of an altogether different kind. An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Section 438 (1) are those recommended in Sub-section (2) (i) and(ii) which require the applicant to co-operate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under Section 438 (1), appropriate conditions can be imposed under Section 438 (2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery.”

In this respect, Justice Mehta commented that if the police argue that custody remand is essential to discover certain facts, then they are talking of "third-degree." Otherwise, the condition is there in the bail order to cooperate with the investigation.

“Does Cooperation mean that the accused must bow down to the investigating officers' desires?”, the judge asked.

At this, Raju tried convincing the Bench that custody is necessary for Section 27 under the Evidence Act. However, Justice Mehta countered: If at all during interrogation, there is any discovery despite the accused being on anticipatory bail, it will be deemed custody. It will be deemed custody for the purpose of the discovery of that fact.

ASG agreed and, at the same time, pleaded with the Court to look from the viewpoint of a police officer where day-in and day-out anticipatory bail orders are being passed, and these conditions are being imposed. Raju also submitted that he is not justifying the impugned actions, and the Supreme Court's order was misinterpreted. It might be negligent or a reckless mistake but there is no deliberate intention to flout the Supreme Court's order, ASG attempted to convince the Bench.

ASG further averred that since such conditions were routinely passed in Gujarat, the inspector's mindset was that he was entitled to do so. By the end of his arguments, Raju contended that as far as the police commissioner was concerned, he took timely action. The concerned officer was suspended, and an inquiry has been initiated.

This was followed by the arguments of ASG Aishwarya Bhati, who appeared for the deputy commissioner. When asked about the absence of the CCTV camera in the inspector's room, Bhati submitted that storage was the issue while the camera was working. Further, she apprised that it was not just on the relevant three days of custody that the storage was in disorder and that it had stopped from November [date was inaudible]. 

Can you expect the accused to remain silent?

Advocate K Parameshwar represented the concerned police inspector. Right at the outset, Parameshwar submitted that the test was whether there was wilful disobedience of the Court's order.

“If that was my intention, I would have never disclosed my in remand application that your lordships had protected the contempt petitioner.”

Justice Mehta asked: Can you expect the accused to remain silent?

Parameshwar replied: I do not. I did disclose it before the magistrate, my lords.

The counsel, thereafter, also drew the Court's attention to the unconditional apology tendered and pleaded that this was a case of genuine misinterpretation of this Court's order. 

He also admitted that he cannot pass the buck to anybody regarding the CCTV cameras. He also averred that it was not his intention to create a black hole by not installing the camera.

By the end, weighing in, he also submitted that the concerned inspector facing disciplinary proceedings is under suspension. In view of this, it was pleaded that this was not a deliberate act of contempt.

These kinds of incompetent officers create these situations

Senior Advocate DN Ray, representing the Magistrate, also presented his arguments before the Division Bench. Expressing the Magistrate's predicament, the counsel submitted that Subordinate courts are routinely approached for remand where bail has been granted. Thus, if remand is dismissed in a series of matters, it will result in other complaints to the superiors.

"Because even a liberal magistrate is not kindly taken, my lords...Therefore, magistrates do err on the side of caution and they are little restrictive while granting bail...Your lordships operate on the widest canvass and the more we go down in the hierarchy of Courts, we operate in a slightly more restricted manner.," the Counsel added.

It was also argued that the Magistrate had an unblemished for the past 14 years. The counsel pleaded that the Magistrate was not trying to protect the State or police.

Moving ahead, it was submitted that following the order passed by the Apex Court, an unfortunate chain of events triggered, causing the Magistrate's order to be scrutinized in a microscopic manner.  

Justice Mehta, at this point, asked: Was it in the domain of the magistrate to foreclose the complaint on that date?

Counsel replied: No, my lords.

J Mehta promptly said: That is what she has done.

In this context, it may be noted that, while answering the Magistrate's questions, the petitioner (on December 16) complained about the ill-treatment by the police. However, the Magistrate outrightly rejected such allegations, stating: “Taking into consideration the mental state of the accused, the serious allegations made by him against the police could not be found reasonable and justifiable in view of the present case and circumstances.”

When the counsel argued that the magistrate had no control over the subsequent event, Justice Mehta strongly rebuked this and said: “That is right. She had ever…to reject a complaint by resorting to Section 203 (crpc), even before the statements were recorded. Because she had already decided on 16 (December) that there is no merit in the complaint. So, she comes in, supersedes the order passed by the co-magistrate, who is having the same jurisdiction, who has directed the inquiry…She is almighty… She is above CrPC. These kinds of incompetent officers, they create these situations. Plain and Simple.”

J Gavai, chiming in, said: Incompetent and over competent.

Thereafter, the counsel pleaded that there was no intention. The Counsel submitted: "Therefore, my lords, kindly try to see it. There is no intention….People make mistakes, people make grave mistakes. This is a grave mistake. This is a mistake which can never be justified but is it still sufficient for your lordships to say that passing a wrong judicial order, the magistrate can be taken up in contempt…”

However, Justice Mehta firmly told the counsel that the December 16th order made it apparent that the magistrate was espousing the cause of the police.

“There could not have been such an order unless the magistrate was totally siding with the police officers, for reasons best known to her. The tenor of that order is absolutely shocking the conscience…you just foreclose the complaint even without giving him a remedy!... In a civilised country, it is unheard of.,” said Justice Mehta. 

The Counsel reiterated that this was not a case of contempt as there was no intention. He further assured that this would not happen again and that the same would be given in writing.

Why fresh bail bonds were asked?

Pertinently, the High Court of Gujarat was added as a party to the present proceedings, and notice was issued to the High Court through the Registrar General. This was after the Supreme Court was told on the last occasion that in Gujarat, the Courts had the practice of granting liberty to the police to seek remand while granting anticipatory bail.

Senior Advocate R Basant presented his arguments for the Gujarat High Court. Demonstrating the practice followed, the Senior Counsel referred to several orders of the high court where such conditions were there.

Justice Gavai interjected, saying that then the Magistrate had acted against these conditions as well because it was clarified that upon completion of police remand, the accused should be set free immediately.

Thereafter, Justice Mehta asked: Why were fresh bail bonds asked?

Basant: According to me, it cannot be asked for.

Essentially, in this regard, the petitioner had submitted that despite being granted anticipatory bail by the Supreme Court, the Magistrate did not release the petitioner and insisted that he file a regular bail application. Thereafter, the petitioner preferred another regular bail application, following which he was released and made to execute another bond.

Basant also cited one of the Supreme Court judgments to support his argument that the Court had previously been apprised of such a condition and that it was not frowned upon.

“It is not as though this Court was not apprised of the situation. This Court had come across situations, and it is not commented or frowned upon...,” the counsel explained. 

However, the Bench pointed out that the cited judgment has not considered the Supreme Court's decision in Siddhram Satlingappa Mhetre v State of Maharashtra.

It may be noted that the petitioner relied upon this case to contend that since the anticipatory bail granted by the Supreme Court was never cancelled, the Petitioner cannot file a regular bail application to be released from custody.

Basant pointed out that Siddhram has not considered the remand issue and only considered the tenure of the bail order. The Senior Counsel also referred to the landmark case of Sushila Aggarwal v. State of NCT of Delhi (2020). The following paragraph was read in the Court:

"If breach of any of the above conditions is committed, the order of anticipatory bail would be cancelled. It would be open to the Investigating Officer to file an application for remand, and the concerned Magistrate would decide it on merits, without influenced by the grant of anticipatory bail order."

Justice Mehta asserted that this should be read together. This means that in the event of cancellation of bail, a remand can be granted.

Before parting, the Senior Counsel clarified that he was not justifying any view. However, he averred that the impressions gathered by all these could be that there is nothing wrong with imposing such a condition. 

Senior Advocate Iqbal H Syed and Advocate-on-Record Mohammad Aslam appeared for the petitioner.

CASE TITLE: TUSHARBHAI RAJNIKANTBHAI SHAH Versus STATE OF GUJARAT, SLP(Crl) No. 14489/2023, TUSHARBHAI RAJNIKANTBHAI SHAH vs. KAMAL DAYANI Diary No.- 1106 – 2024