Supreme Court Holds Police Inspector & Magistrate Guilty Of Contempt For Arrest & Remand Of Accused Violating SC Order

In a major development, the Supreme Court today (on August 07) held a Police Inspector and a Chief Judicial Magistrate from Gujarat guilty of Contempt of Court for arresting and remanding an accused ignoring an interim anticipatory bail order passed by the Supreme Court.

"we hold R.Y. Raval, Police Inspector, Vesu Police Station, Surat(contemnor- respondent No.4) and Deepaben Sanjaykumar Thakar, 6th Additional Chief Judicial Magistrate, Surat(contemnor- respondent No.7) guilty of having committed contempt of this Court's order dated 8th December, 2023," the Court observed.

The Court has asked the contemnors to remain present on September 02, 2024, to decide their sentences. 

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.

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 a contempt notice to the 6th Additional Chief Magistrate, Surat, who remanded the petitioner to police custody despite the interim order of the Supreme Court. The Court had reserved its judgment in the matter on March 12 after conducting a detailed hearing. 

Investigating Officer should have sought clarification from SC

In the judgment, the Supreme Court said that the investigating officer ought to have approached it seeking appropriate directions to take the accused into custody.

"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."

Regarding the conduct of the Magistrate

The Court refused to accept the explanation of the Magistrate that the practice followed in Gujarat is that while granting anticipatory bail, the police is given liberty to seek remand of the accused.

"The said explanation is neither convincing nor tenable in view of the fact that it is not a case wherein a Court in Gujarat had passed an order of anticipatory bail under Section 438 CrPC which was vague or open to different interpretations or contained a stipulation that the Investigating Officer could seek police remand of the accused. The order under contempt dated 8th December, 2023 was passed by this Court while exercising its jurisdiction under Article 136 of the Constitution of India wherein there was no such stipulation that the accused could be remanded to police custody."

The Court was also taken aback to note that the accused was kept in detention till December 18, 2023 although the police custody remand expired on December 16, 2023.

"It is noteworthy that despite the period of police custody remand having come to an end on 16th December, 2023, the accused petitioner was further detained till 18th December, 2023 on which date, he was released on bail upon furnishing fresh bail bonds, which is clearly in teeth of this Court's order dated 8th December, 2023. The contemnor-respondent No. 7 has clearly stated in the reply affidavit that no order was passed remanding the accused- petitioner to judicial custody. In this background, detention of the accused till 18th December, 2023 was absolutely unconstitutional and contrary to the letter and spirit of Articles 20 and 21 of the Constitution of India."

If the order granting police custody remand was passed bona fide based on some misconception, then, the Magistrate should have ensured that the accused-petitioner be released from custody immediately at the end of the period of police custody remand without imposing any further conditions and without any delay, the Court said.

Courts must apply their mind on whether custody remand is genuinely required

The judgment stated further :

"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"

In this regard, reference was made to the judgment in Ashok Kumar v. Union Territory of Chandigarh 2024 LiveLaw (SC) 223 that a mere assertion on the part of the State while opposing the plea for anticipatory bail that custodial investigation is required would not be sufficient.

The Court also criticised the Magistrate for casually dismissing the petitioner's complaint regarding custodial torture.

The contempt notices against other officials were discharged.

Mr. IH Syed, Sr Adv., Mr. Abid Ali Beeran P, Adv. and Advocate-on-Record Mohammad Aslam appeared for the petitioners.

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

Citation : 2024 LiveLaw (SC) 557

Click here to read the judgment