SC intervenes in a case where even anticipatory bail granted by it was not enough to save a man from Gujarat police and magistrate

In a shocking case of defiance of the Supreme Court's anticipatory bail Order, an accused was arrested, remanded to police custody and allegedly tortured. Now the Supreme Court has intervened and found the police officer and the magistrate guilty of contempt..—.IN what may come as a timely and much-needed lesson for the police and judges in subordinate courts, the Supreme Court has found an inspector of the Gujarat police and an additional chief judicial magistrate guilty of contempt of court for acting in utter disregard of an Order granting anticipatory bail to an accused..The blatant abuse of the process of law occurred when the police and the magistrate worked in tandem to put an accused behind bars despite the protection granted by none other than the Supreme Court of India..A two-judge Bench of the Supreme Court comprising Justice B.R. Gavai and Justice Sandeep Mehta expressed its shock at the conduct of the police inspector and the magistrate..Facts.On December 8, 2023, the Bench granted an interim relief to one Tusharbhai Rajnikantbhai Shah while hearing his petition seeking anticipatory bail. The Bench directed that in the event of the arrest of Shah, he would be released on bail subject to his executing personal bonds for a sum of ₹25,000 with one or more sureties in the like amount..“The blatant abuse of the process of law occurred when the police and the magistrate worked in tandem to put an accused behind bars despite the protection granted by none other than the Supreme Court of India..The Bench also directed Shah to cooperate with the investigation and report to the investigating officer as and when directed to do so..On December 11, 2023, Shah appeared before the investigating officer R.Y. Raval. He was arrested and released following the court's Order. On the same day, he was given a notice asking him to remain present at the police station before the investigating officer for the recording of the statement..Shah appeared before the investigating officer. He was then served another notice asking him to remain present before the concerned additional chief judicial magistrate Deepaben Sanjaykumar Thakar to seek his remand..Also read: Casual and mechanical staying of bail Orders disastrous for human liberty, says SC.On December 13, 2023, Judge Thakar took up the remand application. In a gross violation of the Supreme Court's interim Order, she remanded Shah to police custody till December 16, 2023. This was despite the fact she was shown the court's Order giving no such liberty to police to seek remand..Shah alleged that he was compelled by Judge Thakar to move a regular bail application which she allowed on December 16, 2023. But Shah was not released from jail. He was compelled to file fresh bail bonds and was released only on December 18, 2023. Thus, Shah was kept in jail for nearly 48 hours even after the police custody remand had expired..On the day when remand was expiring, Shah was produced before Judge Thakar. Shah alleged that he was tortured by the deputy commissioner of police and police inspector Raval..Judge Thakar undertook an exercise of self-observation of the legs of Shah and remarked on the Order sheet that no signs of beating were visible. Shah had also sent the complaint of torture meted out to him to the police commissioner but no cognisance was taken of it..Shah then filed a private complaint before the magistrate. Judge Thakar was on leave. Hence, the duty magistrate took cognisance of the complaint on December 21, 2023. The duty judge noted that the acts complained of were not committed by concerned police officials while discharging official duties and thus sanction to prosecute them was not required under Section 197 of the Code of Criminal Procedure (CrPC). The complaint was kept for verification on January 3, 2024..On January 6, 2024, Judge Thakar took up the complaint. Surprisingly, she reviewed the Order of her predecessor and rejected the complaint..Supreme Court's whip.This conduct of Judge Thakar has been reproached by the Bench. It observed that the only permissible action under law after the cognisance of the complaint had already been taken by the duty judge, was to record the statements of the complainant and his witnesses by taking recourse to the mandatory procedure prescribed under Sections 200 and 202 of the CrPC..Also read: "Sorry state of affairs", says SC while quashing Delhi HC interim Orders staying bail for more than a year.But Judge Thakar dismissed the complaint in breach of the Order passed by her predecessor. The High Court of Gujarat has already quashed the Order dismissing the private complaint..“On December 11, 2023, Shah appeared before the investigating officer R.Y. Raval..The Bench has termed the conduct of Judge Thakar "biased", adding that she acted in defence of the police officials instead of acting impartially, as was her duty..Besides seeking contempt action against investigating officer Raval and Judge Thakar, Shah had also sought contempt action against the commissioner of police, Surat, the deputy commissioner of police, Zone-4 Surat, and the original complainant at whose behest the FIR was filed..Except for Raval and Judge Thakar, the Bench discharged others from the contempt proceedings observing that they did not have a direct role to play in the matter..In his reply, investigating officer Raval tendered an unconditional apology for any contumacious act. However, he claimed that Shah was evasive during the interrogation. Thus he felt a genuine need to seek Shah's remand to effect discovery of incriminating evidence, Raval stated..Importantly, Raval also argued that there prevails a long-standing practice, followed by all courts in Gujarat, whereby the investigating officer is given liberty to seek police custody remand in Orders granting anticipatory bail to the accused..He thus argued that he was swayed by this misconception based on the practice consistently being followed in the State and applied for remand bona fide..Pertinently, this submission was also made by Judge Thakar in her defence. The High Court of Gujarat, which was made a party to the case, also made this submission, as did the additional chief secretary of Gujarat..The Bench rejected the submissions. Against the investigating officer, the Bench held that its Order of December 8, 2023 was unambiguous; thus, there was no question of the investigating officer or the magistrate entertaining the doubt in their mind that there was a scope for an interpretation that the petitioner could be remanded to police custody during the currency of the interim Order..Also read: In a case involving fake currency, Supreme Court gets real about the right to speedy trial.It also noted that the investigating officer misrepresented the facts in the remand application. The Supreme Court highlighted that it was projected in the remand application that the cheques issued by the accused petitioner had to be recovered. However, as per the first information report (FIR), the cheques had been issued by the complainant to the accused-petitioner and not vice versa..The Bench also found that the claim made in the remand application that the accused was not cooperating with the investigation was cooked up and a clear attempt to draw the wool over the court's eyes. It underscored that the notice for remand to the accused on December 12, 2023 did not indicate that he had not cooperated in the investigation..The Bench also comments on the merits of the FIR. It observed that the FIR was lodged in relation to a civil dispute which arose from an oral agreement for the sale of the property. It said that by failing to test the truth of the complainant's allegations regarding the transmission of a huge cash amount to the tune of ₹1.65 crore to the accused, the investigating officer had acted in sheer ignorance of the mandate of the Income Tax Act, 1961 as well as the provisions of the Prevention of Money Laundering Act, 2002..Against Judge Thakar, the Bench held that she acted with bias and in a high-handed manner while granting police custody remand of the accused. The Bench rejected her argument that she had acted under a misconception owing to settled and prevailing practices in Gujarat. The Bench firmly said its Order of December 8, 2023 allowed only one interpretation, i.e., the accused petitioner had to be released on bail in the event of arrest..“The Bench has termed the conduct of Judge Thakar "biased", adding that she acted in defence of the police officials instead of acting impartially, as was her duty..The action of Judge Thakar, the Bench added, in granting police custody remand of the petitioner and in failing to release him after the custody period was over was clearly in the teeth of the Bench's Order of December 8, 2023. It added that Judge Thakar's contumacious actions also contributed to the illegal detention of the petitioner for almost 48 hours after the period of police remand had come to an end..Also read: Why Mahesh Raut needed an interim bail on top of regular bail to attend his grandmother's funeral.The Bench also underscored that if the Order granting police custody remand was passed bona fide based on some misconception, then Judge Thakar 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.."There was no occasion for the 6th ACJM (contemnor respondent No. 7) to have proceeded to interpret this court's Order in a fanciful manner and that too while acting on a tainted remand application filed by the investigating officer," the Bench held..The Bench also found the practice prevailing in Gujarat which allows custody of the accused despite anticipatory bail, illegal. The Bench held that the provisions of anticipatory bail under Section 438 CrPC or the newly enacted Section 482 of the Bhartiya Nagarik Suraksha Sanhita, 2023 do not accord any such liberty to the investigating officer..The Bench added that the court, while granting anticipatory bail, may, in a given case, restrict the tenure of anticipatory bail as laid down by the Supreme Court in Sushila Agarwal versus the State of NCT (Delhi) and may also impose other suitable conditions..But 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..Also read: Tis' but two-three days: Kejriwal, liberty and artistic expression of criminal justice."This would virtually frustrate the very purpose and intent behind the grant of anticipatory bail to an accused," the Bench held..“The Bench also found the practice prevailing in Gujarat which allows custody of the accused despite anticipatory bail, illegal..The Bench also had a message for magistrates in the country in general. It observed that criminal jurisprudence requires that before exercising the power to grant police custody remand, courts must apply judicial mind to the facts of the case to arrive at a satisfaction as to whether the police custody remand of the accused is genuinely required..Courts are not expected to act as the messengers of the investigating agencies and remand applications should not be allowed routinely, the Bench averred.

SC intervenes in a case where even anticipatory bail granted by it was not enough to save a man from Gujarat police and magistrate

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