Supreme Court Surprised At Practice Of Gujarat Courts Giving Police Liberty To Seek Remand While Granting Anticipatory Bail; Issues Notice To HC

The Supreme Court on Monday (January 29) 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.

The Bench, comprising Justices BR Gavai and Sandeep Mehta, remarked that such a practice would defeat the objective of granting anticipatory bail, nullifying the guarantee of personal liberty. It further observed that proper training must be given to the Judicial Magistrates in the State.

The High Court of Gujarat was added as a party to the present proceedings and notice issued to the High Court through the Registrar General, returnable within two weeks.

Briefly stated, the Court was hearing a contempt petition filed against police officials and a Judicial Magistrate in Gujarat after an accused was remanded to custody despite the order of the Supreme Court granting him interim anticipatory bail. Earlier, the Court had come down heavily on the cops and the Magistrate for violating the interim order and issued contempt notices to them.

For an overview of the matter and earlier proceedings, click here.

Pertinently, Solicitor General Tushar Mehta informed the court today that departmental action against the concerned officer was underway. He further apprised that it is common practice in Gujarat for bail orders to include a condition that the Investigating Officer would be at liberty to apply for remand. It was contended that under this mistaken belief, the officer in the present case applied for remand of the petitioner, which was permitted by the Magistrate. 

Surprised at the revelation, the court remarked that such a condition, after finding that applicant is entitled to anticipatory bail on merits, would defeat the very purpose of Section 438, CrPC. It further commented that Gujarat High Court is routinely passing bail orders, especially under Section 438 CrPC, without making any observations on merits.

In this backdrop, the High Court's response was sought, deeming it necessary before proceeding to decide the case.

Courtroom Exchange

SG: This is not something which can be defended or should be defended. This is clearly the case of a mistake

Justice Gavai: No, what is this? Order of the Supreme Court is there...learned Magistrate notices the order of the Supreme Court and still passes the order...and this is a mistake?

SG: I am for the police officer, not for the...

Justice Gavai: Police officer has also filed an application for remand, knowing very well that an order has been passed by the Supreme Court

SG: The Commissioner was not served, he didn't know about the order...because he is not dealing with each individual case...the person who misread the order has been placed under suspension and he is being proceeded against departmentally.

SG explains that in Gujarat, when anticipatory bail is granted by the High Court or by the Sessions Court, the order usually includes a condition that right of the prosecution to apply for remand is left open. He submits that in this backdrop, the officer in the present case, under a mistaken belief, acted towards seeking remand.

Justice Gavai: Then Gujarat needs to be educated, if some practice contrary to the guarantee of personal liberty is being...if this is the practice that you follow...we will have to deprecate such a practice. Learned Magistrates also need to be educated. You have such a beautiful academy in Ahmedabad, this is the sort of training you impart to your Magistrates?

SG: the practice is not a ground for committing contempt

Justice Mehta: There is no provision in the CrPC to that effect...investigation and interrogation on one side, it's okay...that's the condition of bail...but remand, that is not conceived anywhere in 438

Justice Gavai: That totally nullifies the order passed by the court. We will have to ask the High Court of Gujarat to give a proper training to the Magistrates in the academy and the State government to educate its officers

SG: Absolutely

Justice Gavai: One line will go somewhere in the [inaudible]

SG: Even one word from your Lordships...your Lordships' oral word is also very potent

Justice Gavai (in jest): Everything for Gujarat has to be special.

The bench noted that in the case, the accused had to apply for fresh regular bail before the Magistrate and execute fresh bonds, despite the interim anticipatory bail order passed by the Supreme Court.

Justice Mehta: He [petitioner] had to file a fresh application, the Magistrate grants the bail as if it is an obligation of the accused...that is what the words are. We are finding many orders of the Gujarat High Court wherein no decision is taken on a bail on merits (438)...simply observing offence is punishable for 7 years, so [inaudible] Satendar Antil and Arnesh Kumar...no decision on merits

Senior Adv. Syed (for petitioner): 5 orders in this case itself

Justice Mehta: Numerous other orders

At this juncture, the court dictated the order.

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

Solicitor General Tushar Mehta, ASGs SV Raju and Aishwarya Bhati appeared for the respondents.

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

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