Gujarat Courts' Practice Of Allowing Police To Seek Remand While Granting Anticipatory Bail Illegal : Supreme Court

The Supreme Court has held that the practice followed by the Courts in Gujarat to grant liberty to the investigating officers to seek police custody remand of the accused while granting anticipatory bail is illegal.

Allowing such liberty to the police will negate the very purpose of the grant of anticipatory bail, the Court held.

The Court made this pronouncement while holding a Police Inspector and a Judicial Magistrate guilty of contempt of court for the arrest and remand of an accused in violation of the interim anticipatory bail granted by the Supreme Court.

The contemnors raised the defence that as per the practice followed in Gujarat, police are given liberty to file an application before the Magistrate seeking custody of an accused who has been granted anticipatory bail. They cited a 2014 judgment of the High Court of Gujarat in Sunilbhai Sudhirbhai Kothari v. State of Gujarat which held that an order granting anticipatory bail will not preclude the power of the police to seek custody. They submitted that following this judgment, Courts in Gujarat have been following a consistent practice of incorporating a condition in the orders granting anticipatory bail that the Investigating Officer would be entitled to seek police custody remand of the accused as and when required.

Rejecting this defence, the Supreme Court at the outset pointed out that its interim order did not incorporate any such condition allowing the police to seek custody. Hence, the remand of the accused was in plain violation of the Supreme Court's order.

Moving further, the Court disapproved of this practice prevalent in the State of Gujarat.

A bench of Justices BR Gavai and Sandeep Mehta observed.

"The arguments advanced by learned senior counsel appearing for the Additional Chief Secretary, Government of Gujarat as well as the High Court of Gujarat about the long-standing practice prevailing in the State, that the Investigating Officer(s) are given liberty to seek police custody remand of the accused after competent Court has granted anticipatory bail does not appeal to us for a moment. Such an interpretation does not appear to be in consonance with the unambiguous position of law. The provisions of anticipatory bail enumerated under Section 438 CrPC or the newly enacted Section 482 of the Bhartiya Nagarik Suraksha Sanhita, 2023(hereinafter being referred to as 'BNSS'), which has come into force with effect from 1st July, 2024, do not contemplate any such liberty to the Investigating Officer."

The Court pointed out that as per the Constitution Bench judgment in Sushila Aggarwal and Ors. v. State (NCT of Delhi) and Anr(2020), the Court can restrict the period of anticipatory bail only in exceptional circumstances.

"However, it does not stand to reason that as a matter of course, the High Court or the Court of Sessions, as the case may be, while exercising anticipatory bail jurisdiction, grants pre-arrest bail to the accused and yet, invariably the Investigating Officer is given blanket liberty to keep the accused in custody for prolonged periods in a routine manner. This would virtually frustrate the very purpose and intent behind the grant of anticipatory bail to an accused," the Court stated.

Allowing police to seek remand would negate the purpose of anticipatory bail

"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 Court added.

The Court declared that this practice followed in Gujarat is in direct violation of the judgment in Sushila Aggarwal.

"Hence, we have no hesitation in holding that 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 Investigating Officers are granted blanket permission to seek police custody remand of the accused, in whose favour the order of anticipatory bail is passed, is in direct contravention to the ratio of the Constitution Bench judgment of this Court in the case of Sushila Agarwal(supra)."

The Court further held that the division bench judgment of the Gujarat High Court in the case of Sunilbhai Sudhirbhai Kothari(supra) does not hold good in law as the same runs contrary to the ratio of Sushila Agarwal(supra).

Other reports about the judgment can be read here.