Law Web: Supreme Court: Investigating Officers can not seek police custody remand of accused after competent Court has granted anticipatory bail

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. However, the Court adjudicating an application for anticipatory bail may, in a given case, restrict the tenure of anticipatory bail in view of the law laid down by this Court in the case of Sushila Agarwal(supra) and may also impose suitable conditions in light thereof. 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 relevant excerpts in this regard from the Constitution Bench judgment of this Court in the case of Sushila Agarwal(supra) are reproduced below for the sake of ready reference: -

“85.3. Section 438 CrPC does not compel or oblige courts to

impose conditions limiting relief in terms of time, or upon filing

of FIR, or recording of statement of any witness, by the police,

during investigation or inquiry, etc. While weighing and

considering an application (for grant of anticipatory bail) the

court has to consider the nature of the offence, the role of the

person, the likelihood of his influencing the course of

investigation, or tampering with evidence (including

intimidating witnesses), likelihood of fleeing justice (such as

leaving the country), etc. The courts would be justified — and

ought to impose conditions spelt out in Section 437(3) CrPC [by

virtue of Section 438(2)]. The necessity to impose other

restrictive conditions, would have to be weighed on a case-bycase basis, and depending upon the materials produced by the

State or the investigating agency. Such special or other

restrictive conditions may be imposed if the case or cases

warrant, but should not be imposed in a routine manner, in

all cases. Likewise, conditions which limit the grant of

anticipatory bail may be granted, if they are required in the

facts of any case or cases; however, such limiting conditions

may not be invariably imposed.

85.4-85.7.…..

85.8. It is open to the police or the investigating agency to

move the court concerned, which granted anticipatory bail,

in the first instance, for a direction under Section 439(2)

to arrest the accused, in the event of violation of any term,

such as absconding, non-cooperating during investigation,

evasion, intimidation or inducement to witnesses with a

view to influence outcome of the investigation or trial, etc.

The court, in this context, is the court which grants anticipatory

bail, in the first instance, according to prevailing authorities.”

(emphasis supplied). {Para 55}

56. The ratio of the above judgment makes it clear that Section

438 CrPC does not compel or oblige courts to impose conditions

limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. The necessity to impose restrictive conditions other than those spelt out in Section 437(3) CrPC would have to be weighed on a case-by-case basis and depending upon the materials produced by the State or the Investigating Agency. Such special or other restrictive conditions may be imposed if the factual context of the case warrants but should not be imposed in a routine manner and the Court would have to act with circumspection depending on the particular facts of each case before endeavouring to impose such conditions.

57. This Court has time and again held that the discretion to

grant pre-arrest bail should be exercised with great degree of

circumspection. Reference in this regard may be made to P.

Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24.

58. Thus, the power to grant anticipatory bail is not to be

exercised in a routine manner and the Courts are expected to use

this provision with a great degree of circumspection. 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. 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 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) and thus, the same stands impliedly overruled.

REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT/CRIMINAL APPELLATE JURISDICTION

CONTEMPT PETITION(CIVIL) NO(S). OF 2024 (D. No. 1106 OF 2024) IN SPECIAL LEAVE PETITION(CRL.) NO(S). 14489 OF 2023

TUSHARBHAI RAJNIKANTBHAI SHAH Vs

KAMAL DAYANI & ORS.

Dated: August 07, 2024.

Citation: 2024 INSC 588.

1. The instant petition under Section 12 of the Contempt of

Courts Act, 1971 read with Article 129 of the Constitution of India

has been filed by the petitioner alleging wilful disobedience by the

respondents-contemnors of the order dated 8th December, 2023

passed by this Court in SLP(Crl.) No. 14489 of 2023.

Brief facts: -

2. The petitioner, along with other co-accused, was arraigned as

an accused in FIR No. 11210068230266 dated 21st July, 2023 filed

by the contemnor-respondent No. 6 herein(the complainant), with

an allegation that the petitioner had received a sum of Rs.1.65

crores in cash from the complainant towards the sale of 15 shops

but the possession thereof was not handed over to the complainant

despite the assurance given by the accused at the time of entering

into an oral agreement.

3. The petitioner, apprehending his arrest in connection with

the said FIR, sought anticipatory bail from the Sessions Court,

which was denied whereafter, an application for anticipatory bail

was filed before the High Court, which also came to be rejected.

Being aggrieved, the petitioner approached this Court by filing

SLP(Crl.) No. 14489 of 2023 seeking anticipatory bail.

4. This Court granted interim anticipatory bail to the petitioner

vide order dated 8th December, 2023(hereinafter being referred to

as ‘the order under contempt’), which is reproduced hereinbelow:-

“1. Perusal of the impugned order would reveal that the High

Court has not even considered the case on merits.

2. In that view of the matter, issue notice, returnable in four

weeks.

3. In addition to the usual mode, liberty is granted to the

petitioner to serve notice through the Standing Counsel for the

respondent/State.

4. By way of ad interim order, in the event of arrest petitioner

be released on bail in connection with FIR being

No.11210068230266 dated 21.07.2023 registered with Vesu

Police Station, Surat City, subject to him executing personal

bonds for a sum of Rs.25,000/- (Rupees Twenty Five Thousand

only), with one or more sureties in the like amount.

5. However, the petitioner is directed to cooperate with the

investigation and report to the Investigating Officer as and

when directed to do so.”

5. The petitioner appeared at Vesu Police Station on 11th

December, 2023 with a copy of the order under contempt dated 8th

December, 2023 intending to join and cooperate with the

investigation. Shri R.Y. Raval, Investigating Officer(contemnorrespondent No. 4) arrested the petitioner and thereafter, released

him on bail upon execution of the requisite bail bonds in terms of

order dated 8th December, 2023. On the very same day, the

petitioner was served with a notice under Section 41A of the Code

of Criminal Procedure, 1973(hereinafter being referred to as ‘CrPC’)

requiring him to remain present at the police station before the

Investigating Officer for recording of further statement. When the

petitioner appeared at the police station, another notice dated 12th

December, 2023 was served upon him requiring him to remain

present before the Court of concerned Additional Chief Judicial

Magistrate for the purpose of seeking remand. The contents of the

notice dated 12th December, 2023 are relevant and shall have a

material bearing on the outcome of the instant contempt petition

and hence, the same are reproduced below for the sake of ready

reference: -

“ N O T I C E

It is hereby given to you this notice in written form that, for the

matter of offence committed u/s. 420, 120(b) of Indian Penal

Code registered before Vesu Police Station vide Part-A11210068230366/2023 Complainant Abhishek Vinodkumar

Goswami aged: 28 years, occupation: Business Real Estate

Residing at C/405, Surya Palace, Ct Light, Surat City Mobile

No 9879215044 filed a complaint against you and others for

which you are remained present as per order passed by Hon’ble

Supreme Court of India in the matter of Special Leave

Application No.14489/2023 on 08/12/2023 and you were

arrested on 11/12/2023 at 2100 hrs and thereafter, released

on bail on basis of the order of the court. During course of

investigation proceedings of the offence, you are hereby

informed to remain in(sic) present by yourself or through your

advocate on 13/12/2023 at 1500 hrs before 5th Additional

Senior Civil Judge and ACJM Surat Court No 608, New Court

Building, Athwalines Surat for the matter of remand which

please note seriously.

Date 12/12/2023 R.Y. Raval

Police Inspector

Vesu Police Station

Surat City

To,

Tushar Rajnikant Shah

Residing at

Flat No E/902, Florence Building,

Opp Rajhans Cinema, VIP Road,

Vesu, Surat City Mobile No 9825038475”

6. It is apposite to note that this notice makes a distinct

reference to the order dated 8th December, 2023 passed by this

Court. However, the notice is blissfully silent on the aspect that

the petitioner had not cooperated with the investigation.

7. In compliance of the said notice, the petitioner appeared

before learned 6th Additional Chief Judicial Magistrate,

Surat(‘contemnor-respondent No.7’) on 13th December, 2023 on

which date, the Investigating Officer, filed an application seeking

his police custody remand for seven days. When the remand

application was taken up, learned counsel representing the

petitioner produced a copy of the order under contempt dated 8th

December, 2023 and made a fervent submission that the Supreme

Court, while providing interim protection to the petitioner had not

granted any liberty to the Investigating Officer to seek police

custody remand and thus, the application seeking remand ought

to be rejected. However, the 6th ACJM, Ms. Deepaben

Sanjaykumar Thakar, the contemnor-respondent No. 7 in gross

derision to the order dated 8th December, 2023 passed by this

Court granting interim protection to the petitioner, observed that

the order of Supreme Court did not indicate that the Investigating

Officer could not seek remand of the accused or that the Court

cannot grant remand and accordingly, she proceeded to remand

the petitioner to police custody till 16th December, 2023. The order

dated 13th December, 2023 which is the foundation of these

contempt proceedings is reproduced hereinbelow: -

“ORDER PASSED BELOW APPLICATION TO AVAIL POLICE

CUSTODY REMAND OF THE ACCUSED TUSHAR

RAJNIKANT SHAH IN THE MATTER OF VESU POLICE

STATION CRIMINAL BEARING REGISTER NO.

11210068230266/2023.

1. Application produced is taken into consideration similarly;

the record of the matter is also taken into consideration. Heard

arguments advanced by Learned APP Shri S.P. Chauhan for

Prosecution side and Learned Advocate Shri Dipesh Dalal for

Accused Person.

2. It is the representation of Learned APP Shri Saurabhbhai

Chauhan that, an offence against accused person for offence

committed u/s. 420, 120[b] of Indian Penal code is registered

for maximum sentence of seven years in which the main role

played by the present accused and total of 15 shops were shown

to be present along with Accused No. Sumit Goyenka and gave

the information that he is the builder and accordingly the

Complainant and witness obtained A sum of Rs. 1,65,00,000/-

as consideration and also by way of cheque a sum of

Rs.54,00,000/- also obtained and in that regard accused no.5,

6 and 7 given payment Diaries and then planned delinquency

by the accused Conspirator committed the offense of cheating

[deception] fraud. According to the ground for remand, they

submit that the main accused has taken total of 9 cheques from

the complainant which cheques are important for the present

matter and same are required to be collected for the purpose of

investigation proceedings. Recovery of Rs. 1,65,00,000/- is

pending and in furtherance, addition of other offence of Umra

Police Station First Criminal Register No 62/2019 for offence

committed u/s. 447, 448, 451, 427, 114 of Indian Penal Code

is registered and accordingly, accused person having criminal

history and does not cooperate with police investigations The

other co-accused are absconding, and hence, requested to allow

police custody remand of Days-7.

3. On 05/10/2023, Learned Advocate Shri Dipesh Dalal on

behalf of accused person produced copy of order of R/Criminal

Misc. Appln [For Anticipatory Bail] No 15242/2023 and order

passed by Hon'ble Supreme Court in the matter of Special Leave

to Appeal [Cri] No 14489/2023 dated 05/12/2023 submitted

and it was submitted that there is an order to release the

bail if the accused is detained and there is no mention of

remand. In furtherance, they submit that the petitioner has

cooperated with the police investigation and will continue

to cooperate in the future as well so there is no need for

remand. In furtherance, they submit that the provision of

maximum punishment in the present matter is seven years,

therefore, in the matter of Satender Antil versus CBI of the

Hon'ble Supreme Court A remand application cannot be

granted mechanically as held in the judgment of the further

submit that the accused has been present in the police station

frequently and has cooperated fully in the investigation, hence

the said application is proposed to be rejected.

4. Heard, on 21/7/2023 for the present matter, the

complainant filed u/s 420, 120[b] of Indian Penal Code against

a total 7 accused in Vesu Police Station. A complaint under

section 4R0, 120(b) is lodged which provides for a maximum

sentence of seven years. In the present matter, the co-accused

is yet to be arrested, if we take the matter diary regarding the

behavior of the accused Tushar Rajinikanth Shah mentioned in

the remand petition. they will be called on 8/12/2023 for the

matter of Special Leave to Appeal No 14486/2023 is not present

at the police station for investigation till the order of "releasing

the applicant from bail due to arrest" is passed. The facts of the

matter diary become significant. The police have visited the

house of the main accused, issued notices and reminders under

section 41(A) but the accused himself was not found present at

the house, his wife or his mother was present and replied that

he was there for the last two months. Not present means the

accused person did not cooperate with the police investigation

proceedings. Taking into consideration the matter diary dated

11/12/2023, appeared after the order of the Hon'ble Supreme

Court and wrote his answer which answer taking into account

the facts of the main complaint, it is prima facie evident on the

record that the present accused has been dealt with other coaccused, the prime of the present matter. Accused Sumit

Goenka is yet to be arrested, other accused are yet to be

arrested, police investigation is pending in that direction. In the

present matter it is pending investigation as to which accused

took the paid compensation of the project property; the main

accused has admitted in his statement that the diary was

written by him. So, it becomes clear that their criminal role is

there and if we note the extreme importance, in the present

matter the prosecution has made serious allegations of preplanned and criminal conspiracy, then a thorough investigation

is pending in that regard. In the present matter it becomes

necessary to bring the modus operandi of the accused on

record. At this stage, it is to be noted that in the present time,

the amount of offence related to property like land and houses

has increased, in which most of the builder level people are also

involved, while in the present matter, there is a deal of 15

shops, so the compensation amount is Rs. 1,65,00,000/- paid,

thorough investigation of the offence becomes necessary so the

reasons stated in the remand application are true. The present

application is eligible to be granted if the co-accused is

investigated properly and the modus operandi of the offence is

placed on record. In furtherance at this stage there is truth in

the reasons stated. The present application is eligible to be

granted if the co- accused is investigated properly and the

modus operandi of the crime is placed on record. In

furtherance, it is to be noted at this stage that Learned

Advocate Shri Dipesh Dalal has emphasized on the order of

the Hon'ble Supreme Court but in that order no order has

been made that the investigating officer cannot ask for

remand or the court here cannot grant remand so the

Hon'ble Supreme Court in the matter of Satender Antil

versus CBI All the principles laid down in the judgment

have been followed by this Court. In the present matter

Remand application not automatically but taking into

consideration the circumstances of the matter, diary and

conduct of the accused, I consider the following order to be

appropriate just and appropriate in the interest of justice.

(emphasis supplied)

//ORDER //

Remand application is partly allowed.

Police custody remand of Accused Tushar Rajnikant Shah is

granted till 16/12/2023 at 1500 hrs.

Signature of accused person and Investigation Officer

shall be obtained below order passed.

Investigation Officer shall strictly adhere [follow] the

guideline of Hon'ble Supreme Court and send a copy of this

order to Chief Judicial Magistrate.

Pronounced this order on 13/12/2023 in the open court.

13/12/2023 Deepaben Sanjaykumar Thakar

Surat 6th Addl. Chief Judicial city

Surat [GJ00943]

Seen

Sign Illegible

Seen

Sign Illegible

Accused is taken into custody

And remand order copy is received.

Sign Illegible

Today explanation of remand order is received,

Sign Illegible”

8. The petitioner has alleged that during the period of police

custody remand, he was tortured by the Deputy Commissioner of

Police(contemnor-respondent No. 3) and the Police

Inspector(contemnor-respondent No. 4). It is further alleged that

upon completion of the period of remand, the petitioner was

compelled by the 6th ACJM, i.e., contemnor-respondent No. 7 to

move a regular bail application under Section 437 CrPC which was

objected to by the learned Assistant Public Prosecutor(in short

‘APP’). The 6th ACJM(contemnor-respondent No. 7) proceeded to

allow the application for bail vide order dated 16th December, 2023.

9. On 16th December, 2023, when the petitioner was presented

before the 6th ACJM(contemnor-respondent No. 7) at the end of the

remand period, he made a complaint regarding torture in police

custody which fact was noted by the 6th ACJM(contemnorrespondent No. 7) in the order sheet dated 16th December, 2023.

The 6th ACJM(contemnor-respondent No. 7) proceeded to record

the statement of the petitioner virtually as if he was being crossexamined. She also undertook an exercise of self-observation of

the legs of the accused-petitioner and made a remark in the

proceeding sheet that no signs of beating were visible thereupon.

These proceedings are relevant to the issue at hand in a limited

sphere and thus, the same are reproduced hereinbelow for the

sake of ready reference:-

“My name is Tushar Rajnikant Shah, I am 43 years old. I want to

say many things, but my mental condition is not proper so that I can

properly dictate everything.

Question: What is your complaint against police?

Answer: Yes, I am beaten a lot, tortured also.

Question: On which part of body beaten?

Answer: Allowing me to sit and on the bottom of the leg beaten and

beaten with belt written as Satyashodahk Yantra.

Question: Who has beaten?

Answer: Three officers were there, (1) ACP Gurjar Saheb, IPS and

other two I can identify if I see them and they were in

simple dress and name plate was not there.

I have not given food since I went there. Complainant

Abhishek or Akhilesh on whose face black spot is there

was doing torturing arriving there.

Question: What torturing was done?

Answer: To give money, do settlement, this all belongs to my father

and will not spare you.

Question: Except this what is your complaint?

Answer: Now I will state after taking lunch peacefully.

Question: You are standing on your legs?

Answer: Yes

Question: Do you have any problem in standing?

Answer: In left leg I feel more problem.

Question: Do you came walking on your leg in the court?

Answer: Yes

Question: Any other thing you want to say against police now?

Answer: Nothing now

Above statement is read by me and thereafter I put my signature.

After taking said statement of the accused on bottom portion of the leg

of the accused I have done self-observation wherein no sign of beating

is found.

Before me

Sd/- Illegible

16/12/23

(Kum. D.S. Thaker)

Today, the accused who is present after completion of remand,

made a complaint against the police stating that they have illtreated him which has been registered as per the said statement

of the accused. However, after a detailed checking from the

bottom of the legs of the accused, no signs are found, as alleged.

It is the complaint of the accused that he is beaten by

“Satyashodhak Yantra written belt”, however, it is to be noted

that the clothes the accused was wearing on the day when

remand was granted to the accused are different from the

clothes he is wearing today after three days of remand, it could

be seen that the same is clean and proper. Even looking at the

physical condition of the accused, it could be concluded that he

was kept in good condition and he was provided with clean

clothes by his family which was handed over to the accused by

the police. It is the submission of the accused that he had not

been provided with food on the day when he went on remand.

Even if the statement of the accused is to be noted and believed

to be correct, it could not be possible that after beaten with the

belt, as alleged, the accused could stand properly on his leg

today. Therefore, the statement made by him that he has not

been provided with food cannot be believed. The accused in the

beginning had stated that, he has a lot of things to say but due

his mental condition, he has not been able to express

everything clearly. However, it is peculiar to note that during

the aforesaid statement made by the accused, he was frequently

looking at his Ld. Advocate while giving reply due to which the

accused was asked that, “why are you looking at your Advocate

and giving reply, ill-treatment is done with you then you must be

aware what has happened and it is you who have to give your

statement.” Thereafter, he has given his statement. The accused

has not complained that he is mentally tortured. At this stage,

it is notable to mention that the accused is working as a builder

having a reputation in society and in such condition and

circumstances, remaining in police custody for interrogation,

could have been uncomfortable to him. 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. All the aforesaid observations and evaluations

made today is noted by directly observing the accused.

Sd/-Illegible

16/12/23

6th Add. Sr. Civil Judge &

A.C.J.M., Surat.”

10. It is noteworthy that pursuant to the order dated 16th

December, 2023 granting regular bail, the petitioner was

compelled to file fresh bail bonds and was ultimately released from

custody on 18th December, 2023. Apparently thus, the petitioner

was kept in confinement for a period of nearly 48 hours even after

the period of police custody remand had come to an end.

Immediately after being released from custody, the petitioner filed

a complaint(Annexure P-10) to the Commissioner of Police alleging

torture by the Deputy Commissioner of Police(contemnorrespondent No. 3), Police Inspector(contemnor-respondent No. 4),

Police Constable(contemnor-respondent No. 5) and other police

officials of Vesu Police Station. A prayer was made in said

complaint to call for and preserve the CCTV footage of the police

station, lest the police officials of Vesu Police Station tamper with

the evidence in form of the recording and thereby, cause grave

prejudice to the petitioner’s complaint case. The Commissioner of

Police, however, did not take any cognizance of the said complaint

of the petitioner whereupon, the petitioner filed a private complaint

against contemnor-respondent Nos. 3, 4 and 5 as well as the

complainant i.e. contemnor-respondent No. 6. The petitioner

categorically alleged in the complaint that he was tortured in Vesu

police station, where the complainant of the case was also present,

and was pressurised to make payment to the complainant and

compromise the matter.

11. Since the 6th ACJM(contemnor-respondent No. 7) was on

leave, the learned Magistrate on duty (8th Additional Chief Judicial

Magistrate) took cognizance of the said complaint vide order dated

21st December, 2023, with a clear finding that the acts complained

of were not committed by the concerned police officials while

discharging official duties and therefore, sanction to prosecute was

not required under Section 197 CrPC. The complaint was kept for

verification on 3rd January, 2024.

12. Later, the 6th ACJM(contemnor-respondent No.7) took up the

complaint and proceeded to reject the same vide order dated 6th

January, 2024 without recording the statements of the

complainant and his witnesses as mandated by Sections 200 and

202 CrPC. The contents of this order are also considered germane

for the purpose of adjudication of the instant contempt petition

since the same has a direct bearing upon the conduct of

contemnor-respondent No. 7 and hence, the same are being

reproduced hereinbelow for the sake of ready reference: -

“Criminal Inquiry No. 280/2023

ORDER BELOW EX-1

1. The said private complaint is filed by complainant Tushar

Rajnikant Shah against police officers u/s 323, 342, 344, 363,

384, 504, 506(2), 120(b) of IPC. It is submitted in complainants

application that against him in Vesu Police Station A-part CR

No.11210068230266/23 is filed u/s 420, 120(b) on date

21.7.2023 wherein he was mentioned as accused no. 4.

Investigation officer has taken his statement. The complainant

has filed in the Hon'ble Court of Principal District and Sessions

Judge at Surat Anticipatory bail application no. 5922/2023 on

date 27.7.2023 which was rejected on date 1.8.2023. Thereafter

he has filled in the Hon’ble Gujarat High Court CRMA No.

15242/2023 and made order partly allowing the same, being

aggrieved by it the complainant filed SLP in Hon’ble Supreme

Court on date 5.10.2023 bearing No. 14489/2023 and order was

passed allowing his anticipatory bail application. Pursuance to

the said order complainant has given his statement on date

11.12.2023 in Vesu Police Station as an accused no. 4 and given

bail bond and surety. Thereafter I.O, has Issued notice on date

12.12.2023 to remain present and therefore on date 12.12.2023

remained present at 1/00 and till night up to 10/00 given his

reply. Thereafter, on date 13.12.2023 LO. has demanded 7 days

remand for him and Hon’ble Lower Court made order allowing 3

days remand. It is submitted by him that during police remand

custody with Satyashodhak Yantra belt beating 35 to 40 belt and

to do compromise made, him physically uneasy have done

unbearable coercion and therefore he became mentally unwell

and family members gave courage and he filed present complaint.

The complainant has prayed to do legal Inquiry against accused.

2.As per complaint of the complainant on date 3.1.2024

verification is taken and in the said verification he has not stated

facts as per his complaint. He has not stated fact about which

police officer has beaten him. Compare to complaint application

in his verification different facts are coming out like " one person

was standing on leg and beat me in bottom of the leg ". As this

one person which police officer was there no such facts are stated.

Asking about who used to come to give clothes, no one has come

from his home, his friend Rajendranbhai Rawal came, such facts

he has stated but no such friend's name is mentioned by him as

his witness or such witness affidavit as a documentary evidence

list is produced along with original complaint. The said

complainant has not made satisfactory clarification about any

person coming from his family to give clothes. Thereafter he was

clearly asked that on completion of remand prior to bringing him

in this Court he was taken to medical checkup and its reply is

given by him in affirmative. At this stage it is notable that in said

original case i.e. Vesu Police Station A-part CR No.

11210068230266/23 medical checkup produced it is clearly

mentioned that on body portion of the said accused no apparent

injury is there. Further it is notable that he during checkup ha

not submitted to the Doctor that he has been assaulted. And in

reference to the question he has stated that, " I am not allowed to

speak such", but at that time the said complaint accused paikee

which accused did not allow him to speak such, no such facts are

stated. Thereafter he was clearly asked that on completion of

remand and on producing in this Court he has stated his facts

willingly as per his desire which is replied by him in affirmative.

Thereafter he was asked that this Court has at the same time ask

him to sit down and checked his bottom of the legs but no signs

of beating was found such is stated and he gave his reply in

affirmative. Thus, said verification considering entirely with the

complaint in Vesu Police Station A-part CR

No.11210068230266/23, the accused has filed ill-treatment

complaint and therefore in the present separately given complaint

nothing remains to be done. Main notable facts is such that in

medical certificate of the accused no signs of assault are seen and

this Court has personally done observation but no such signs are

seen. Further, this Court has on the same day after observing

the accused personally in details of observation and

evaluation noted and considering it the complainant's private

complaint is not maintainable. The accused naturally

remained in police custody and in police lock up, have

dissatisfaction against police employees which is very casual

and natural reaction. No person would like to remain in police

custody and therefore the said complaint is prima facie is

filed keeping grudge against the police with a feeling of

revenge is made self-clear. As per the said complaint no facts

are recorded by accused after completion of remand

immediately is not stated in his ill-treatment and therefore

the said complaint is not valid and tenable and therefore

following order I understand is reasonable and justified.

(emphasis supplied)

ORDER

1. The order is made to cancel the said complaint u/s. 203 of Cr.

P.C.

Order declared today on date 06.01.2023 in open Court.

Date: 06.01.2024

Surat.

Seen

Sd/- Illegible

Sd/- Illegible 6.1.24

(Kum. Deepaben Sanjaykumar Thaker)

6th Add. Chief. Judi. Magistrate

Surat (GJ00943)

13. A perusal of the order reveals that the 6th ACJM(contemnorrespondent No.7) proceeded to deal with the complaint in a predetermined manner and rejected the same without recording the

statements of the petitioner(complainant) and his witnesses as per

the mandate of Sections 200 and 202 CrPC. Acting purely on her

own whims and fancies, the contemnor-Respondent No.7

concluded that ex facie the complaint was filed keeping grudge

against the police and with the feeling of seeking revenge. The

order dated 6th January, 2024 passed by 6th ACJM(contemnorrespondent No.7) has been set aside by the High Court of Gujarat

and rightly so, in our opinion, vide order dated 22nd February,

2024 while accepting the revision petition filed by the petitioner,

being R/Criminal Revision Application No. 273 of 2024. Relevant

observations made by the High Court are reproduced

hereinbelow:-

“11. As per Section 203 of the Code, the learned Magistrate

ought to have recorded the statement on oath of the

complainant and of the witnesses and when in-charge

Magistrate has directed the complainant to remain present with

his witnesses and the witnesses were present before the learned

Magistrate, learned Magistrate without giving any reasons for

not recording the statements of the witnesses has dismissed the

complaint which is illegal and improper. That if the statements

of the witnesses were recorded, learned Magistrate could have

applied her mind and form the judgment whether there is

sufficient ground for proceeding against the accused or not.

That learned Magistrate has acted erroneously and has passed

the impugned order which is illegal and improper and hence,

the same is required to be set aside.

12. On perusal of the impugned order, it appears that the

complainant was directed to remain present with his witnesses

and as per the submission of the learned senior advocate for

the applicant, witnesses were present before the learned

Magistrate, but their statements have not been recorded. No

reasons have been given by the learned Magistrate for nonrecording of the statements of the witnesses and hence, the

applicant original complainant has not been given full

opportunity for putting up his case before the learned

Magistrate. That the impugned order is improper and perverse

and is required to be set aside.

Learned(sic)

13. Under the circumstances, the application is allowed. The

impugned order dated 6.1.2024 passed below Exh.1 in

Criminal Inquiry No.280 of 2023 is quashed and set aside. The

learned Magistrate is directed to record the statements of the

witnesses and then after applying judicial mind to the material

placed before the Court, form the judgment whether or not,

there is sufficient ground to proceed.”

14. It is in the aforesaid backdrop, that the petitioner has

approached this Court by way of the instant contempt petition with

a prayer seeking prosecution of the respondents and to convict and

sentence them for wilful disobedience and gross contempt of this

Court’s order dated 8th December, 2023.

15. Notice of the contempt proceedings was issued to the

respondents on 10th January, 2024.

16. The High Court of Gujarat was subsequently impleaded in

the matter vide order dated 29th January, 2024.

17. Reply affidavits in response to the notice for contempt, have

been filed on behalf of the respondents arraigned in the contempt

petition. The petitioner has also filed separate rejoinder affidavits.

Submissions on behalf of the petitioner: -

18. Mr. Iqbal Syed, learned senior counsel appearing for the

petitioner advanced the following pertinent submissions: -

18.1 That the order dated 8th December, 2023

passed by this Court was explicit to the effect that the

petitioner was to be released on bail in event of his

arrest. No liberty was ever granted by this Court to

the Investigating Officer to seek police custody remand

of the petitioner while he was under the protective

umbrella of the interim anticipatory bail order passed

by this Court.

18.2 That the SLP seeking anticipatory bail filed

by the petitioner was still pending consideration before

this Court and thus, if at all, the Investigating Officer

desired to seek police custody remand of the petitioner

on the alleged ground of non-cooperation in

investigation, then the appropriate procedure would

have been to move an application before this Court to

seek such liberty.

18.3 That the Investigating Officer had already

accepted the bail bonds of the petitioner on 11th

December, 2023 and hence, there could not have been

any occasion for grant of police custody remand of the

petitioner because such course of action resulted into

fresh arrest of the petitioner which is clearly in teeth

of the order passed by this Court.

18.4 That a pertinent objection was raised before

the 6th ACJM(contemnor-respondent No. 7) that there

was no scope for granting police custody remand of the

petitioner in view of this Court’s order, but the 6th

ACJM No. 6(contemnor-respondent No. 7) totally

glossed over the interim order passed by this Court

and granted 3 days’ police custody remand of the

petitioner by assigning a totally flimsy justification

that this Court had not precluded the Investigating

Officer from seeking police custody remand of the

petitioner nor was the Magistrate prohibited from

exercising such power. In support of the submission

that there was no scope to remand the petitioner to

police custody, learned senior counsel for the

petitioner placed reliance on the judgment passed by

this Court in the case of Siddhram Satlingappa

Mhetre v. State of Maharashtra1.

18.5 He urged that in spite of the interim order of

anticipatory bail granted by this Court being in

currency, the petitioner was not released from custody

even at the end of the police remand period, and

rather, he was compelled to file a regular bail

1 (2011) 1 SCC 694

application under Section 437 CrPC to which the

learned Assistant Public Prosecutor(APP) objected.

However, the application was allowed, and the bail

bonds of the petitioner were accepted, and he was

released from custody on 18th December, 2023 which

aggravates the contemptuous acts of the contemnorrespondent No. 7 because the petitioner was kept in

illegal custody for more than 48 hours.

As per learned senior counsel, it is a clear case of

the petitioner being kept in illegal custody for a period

of 6 days in teeth of the interim order granted by this

Court and that too, during pendency of the special

leave petition.

18.6 He urged that the biased, pre-determined

and prejudiced bent of mind of the 6th

ACJM(contemnor-respondent No.7) is fortified from

the fact that when the petitioner made a complaint

regarding torture in police custody on being produced

before the Court at the end of the remand period, the

6th ACJM(contemnor-respondent No. 7) proceeded to

record a calculated finding that the accused-petitioner

was not having signs of injury by even going to the

extent of personally examining the feet of the

petitioner which procedure was purely within the

domain of a Medical Expert.

18.7 Over and above this, the private complaint filed

by the petitioner alleging torture in police custody was

rejected in an arbitrary and high-handed fashion even

without recording the statements of the

complainant(petitioner herein) and the witnesses

under Sections 200 and 202 CrPC which is the

mandate of law.

The High Court of Gujarat, vide order dated 22nd

February, 2024 while reversing the order passed by

the 6th ACJM(contemnor-respondent No.7) rejecting

the complaint has taken note of the fact that learned

Magistrate committed grave legal error in ignoring the

provisions of CrPC while rejecting the complaint filed

by the petitioner.

18.8 That the petitioner after being released from

custody lodged a prompt complaint to the

Commissioner of Police, Surat(contemnor-respondent

No.2) on 20th December, 2023 with a pertinent prayer

to preserve the CCTV footage of Vesu Police Station.

However, no action was forthcoming on the said

complaint, and it is only after this Court took

cognizance of the contempt proceedings and issued

notice that an inquiry was initiated in this regard.

18.9 That the Commissioner of Police, Surat

(contemnor-respondent No. 2) has admitted in his

affidavit that CCTV cameras installed at Vesu Police

Station by a private agency were not functional and

this fact was brought to notice of Mr. R.Y. Raval, Police

Inspector(contemnor-respondent No. 4) by the PSO in

charge on 21st December, 2023. He contended that the

clear omission and negligence on part of the concerned

police officials in not ensuring the functioning of the

CCTV cameras is in sheer disobedience of the mandate

of this Court’s judgment in the case of Paramvir

Singh Saini v. Baljit Singh and Another2.

18.10 That as per the reply affidavit filed by the

Commissioner of Police, Surat(contemnor-respondent

(2021) 1 SCC 184

No. 2), the FSL examination carried out on the internal

storage(hard disk) and the DVR reveals that the CCTV

footage of Vesu Police Station from 13th December,

2023 to 16th December, 2023 was not found in hard

disk which clearly establishes that the police officials

had tampered with the DVR and deleted the data

saved between 13th December, 2023 to 16th December,

2023, in order to destroy the evidence of custodial

violence committed upon the petitioner.

18.11 That the very fact, that the police officials

registered the FIR on the basis of complaint filed by

complainant(contemnor-respondent No. 6), being FIR

No. 11210068230266 for allegations which ex facie

disclose a civil dispute plain and simple, reflects their

mala fide and biased approach.

On these grounds, the learned senior counsel implored the

Court to prosecute and suitably punish the respondents while

holding them guilty of wilful disobedience/gross contempt of this

Court’s order dated 8th December, 2023. He also prayed that the

interim protection granted to the petitioner vide order dated 8th

December, 2023 passed in SLP(Crl.) No. 14489 of 2023 may be

made absolute.

Submissions on behalf of the respondents: -

19. Shri R. Basant, learned senior counsel appearing for the

freshly impleaded respondent, the High Court of Gujarat

(respondent No. 8) advanced the following submissions: -

19.1 The contention of learned counsel for the

petitioner that the Investigating Officer could not have

sought remand of the petitioner is misplaced since, the

judgment relied upon by the petitioner i.e. Siddhram

Satlingappa Mhetre(supra) wherein, it was held that

tenure of anticipatory bail order cannot be limited has

been explicitly overruled by a larger Bench of this

Court in the case of Sushila Aggarwal v. State(NCT

of Delhi)3. He placed reliance on the following paras

from the above judgment in support of this

contention:-

“92.6- An order of anticipatory bail should not be

“blanket” in the sense that it should not enable the

accused to commit further offences and claim relief of

indefinite protection from arrest. It should be confined to

the offence or incident, for which apprehension of arrest is

sought, in relation to a specific incident. It cannot operate

in respect of a future incident that involves commission of

an offence.

(2020) 5 SCC 1

92.7- An order of anticipatory bail does not in any manner

limit or restrict the rights or duties of the police or

investigating agency, to investigate into the charges

against the person who seeks and is granted pre-arrest

bail.”

19.2 He submitted that the Courts in Gujarat

based on the view taken by the Division Bench of High

Court of Gujarat in the case of Sunilbhai Sudhirbhai

Kothari v. State of Gujarat4

, 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. In

Sunilbhai Sudhirbhai Kothari(surpa), the reference

was made to the Division Bench to answer the

following question of law: -

“Whether the Investigating Agency has power to get police

custody under Section 167 of the Code of Criminal

Procedure, 1973, when an accused is already granted bail

under the provision of Section 438 of the Code of Criminal

Procedure, 1973.”

The Division Bench answered the reference in affirmative

and thus, there was no impediment for the Investigating Officer to

have sought police custody remand of the petitioner and that the

4 2014 SCC OnLine Guj 14451

learned Magistrate was also acting well within the jurisdiction

conferred upon her by CrPC while granting police remand of the

petitioner.

20. The learned counsel representing the contemnor-respondent

Nos. 2 to 7 submitted in cohesion that all the contemnors have

tendered unconditional apology in their reply affidavits for the

alleged contumacious acts. They urged that the contemnors had

no intention whatsoever to disobey or disregard this Court’s order

dated 8th December, 2023 and the infraction, if any, in this regard

is purely unintentional and thus, a lenient view may be taken and

the contempt notices may be discharged.

21. Mr. S.V. Raju, learned ASG appearing on behalf of

Commissioner of Police, Surat(contemnor-respondent No. 2)

advanced the following submissions: -

21.1 That respondent No. 2 has no direct role in

the contempt proceedings and thus the contempt

notice issued to him may be discharged.

21.2 That Commissioner of Police(contemnorrespondent No. 2) has tendered an unconditional

apology for any of the alleged action/omission which

may have resulted in contempt of this Court’s order

dated 8th December, 2023.

21.3 That Vesu Police Station was a newly

established police station and thus, CCTV cameras

installed in the police station were not properly

functional.

21.4 That the DVR and hard disks of the CCTV

cameras installed in the police station were forwarded

for analysis to the FSL, from where a report has been

received that there was some technical defect in the

DVR and that the video footage from 13th December,

2023 to 16th December, 2023 could not be preserved

therein. The fact regarding the technical defect in the

DVR was not brought to the knowledge of the

Commissioner of Police(contemnor-respondent No.2)

and hence, he cannot be held guilty of wilful

negligence in discharge of duties.

21.5 That Commissioner of Police(contemnorrespondent No. 2) has already initiated departmental

proceedings against the erring police officials. The

Police Inspector/Investigating Officer(contemnor-

respondent No. 4) and Police Constable(contemnorrespondent No. 5) have been placed under suspension.

He thus implored the Court to discharge the contempt notice

issued to the Commissioner of Police, Surat(contemnor-respondent

No.2).

22. Ms. Aishwarya Bhati, learned ASG, appearing on behalf of

Deputy Commissioner of Police, Surat(contemnor-respondent No.

3) advanced the following submissions: -

22.1 That the said contemnor has tendered an

unconditional apology for any act or omission which

may have contributed to the noncompliance/contempt of this Court’s order dated 8th

December, 2003. Learned ASG reiterated the

averments made in the reply affidavit filed on behalf of

the officer and urged that he was, in no manner,

connected with the investigation of the subject FIR and

thus he cannot be held responsible for the

contumacious acts. She fervently contended that the

contemnor-respondent No. 3 had no role to play either

in the investigation of the case or the custodial torture

allegedly meted out to the petitioner during the period

of police custody. She also urged that no injuries were

found on the person of the petitioner as per the

medical report.

22.2 Regarding the issue of the non-functioning

of the CCTV cameras in the Vesu Police Station, she

submitted that the CCTV cameras had been installed

some time back and were functional but there was

some problem with the DVR storage not just during

the 3 days of custodial period of the petitioner but was

persisting since November, 2023. On these grounds,

Ms. Bhati, learned ASG implored the Court to accept

the unconditional apology filed on behalf of

contemnor-respondent No.3 and discharge the

contempt notice issued to him.

23. Mr. K. Parameshwar, learned counsel appearing on behalf of

Shri R.Y. Raval, Police Inspector(contemnor-respondent No. 4)

urged that the officer had no intention whatsoever to disregard or

wilfully disobey this Court’s order. He advanced the following

submissions: -

23.1 At the outset, Investigating

Officer(contemnor-respondent No. 4) in his reply

affidavit has tendered an unconditional apology for

any contumacious act/conduct arising of inadvertent

action/omission attributed to him in the contempt

proceedings.

23.2 That when the petitioner appeared at the

police station with the order of this Court dated 8th

December, 2023, he was immediately released on bail

by accepting his bail bonds. However, the petitioner

gave evasive replies upon being interrogated and was

totally non-cooperative in the process of investigation

and thus, the Investigating Officer, contemnorrespondent No. 4 felt a genuine requirement to seek

police custody remand of the petitioner to effect

discovery of incriminating evidence.

23.3 That there prevails a long-standing practice

being followed by all the Courts in the State of Gujarat

whereby the Investigating Officer is given liberty to

seek police custody remand in orders granting

anticipatory bail to the accused. Swayed by this

misconception based on the practice consistently

being followed in the State, the Inspector bona fide

moved the application for police custody remand of the

petitioner herein.

23.4 That even the learned Magistrate

misconstrued this Court’s order and granted police

custody remand of the petitioner and hence, the

Inspector cannot be faulted and punished for

contempt just for moving the remand application.

23.5 That no maltreatment was ever meted out to

the petitioner during the period of police custody

which fact is borne out from the observations made in

the proceedings recorded by the learned Magistrate on

16th December, 2023.

23.6 That the Police Inspector(contemnorrespondent No.4) had joined Vesu Police Station on 5th

October, 2023 and thus, the allegation that he was

hands in glove with the complainant(contemnorrespondent No. 6) is totally misplaced.

23.7 That contemnor-respondent No.4 was

sincerely discharging his official duties while

investigating the FIR No. 11210068230266 dated 21st

July, 2023 wherein, the petitioner was alleged to have

cheated the complainant of a huge sum of money

running into more than Rs. 1.65 crores and thus, he

cannot be attributed the motive of colluding with the

complainant.

23.8 That the cheques given by the complainant

to the accused-petitioner were illegally retained and,

the recovery thereof was imperative for fair

investigation of the case and therefore, the Police

Inspector had sought police custody remand of the

petitioner herein in an absolutely bona fide and

unbiased manner.

23.9 That the petitioner’s claim of being tortured

during the period of police custody is yet to be

adjudicated in the complaint filed by the petitioner

which is pending enquiry.

23.10 In addition to above, learned counsel

submitted that contemnor-respondent No.4 is already

facing departmental proceedings in relation to these

very allegations and hence, these contempt

proceedings would tantamount to double jeopardy.

On strength of the above submissions, learned counsel

implored the Court to take a sympathetic view and discharge the

contempt notice issued to contemnor-respondent No. 4.

24. Learned senior counsel, Mr. D.N. Ray, representing 6th ACJM

No.6(contemnor-respondent No. 7), at the outset, submitted that

the judicial officer is having an impeccable service record. She had

no intention whatsoever of committing wilful or intentional

disobedience of this Court’s order and that the judicial officer has

expressed unconditional and unqualified apology for the acts done

in discharge of judicial functions which are wrongly branded as

contumacious by the petitioner. He advanced the following

submissions: -

24.1 On perusing the remand application filed by

the Investigating Officer, the contemnor-respondent

No.7 inculcated a reasonable belief that the petitioner

was not cooperating with the investigation in terms of

the order passed by this Court.

24.2 She was also guided by the long prevailing

practice being followed in the State of Gujarat wherein,

the Courts, while granting anticipatory bail,

incorporate a condition that in case the accused in

whose favour the order of anticipatory bail has been

passed does not cooperate in investigation then, the

concerned Magistrate would be empowered to direct

police custody remand of such accused.

24.3 He submitted that it is purely based on this

long-standing practice prevalent in the State of

Gujarat that 6th ACJM(contemnor-respondent No. 7),

in bona fide discharge of her judicial functions allowed

the application filed by the Investigating Officer and

remanded the petitioner to three days’ police custody.

He urged that at the end of the remand period, the

petitioner voluntarily filed an application under

Section 437 CrPC seeking bail, which was routed

through the Registry of the Court and that is why the

Magistrate, was left with no other option but to pass

an order on the said application requiring the accused

petitioner to furnish bail bonds in lieu of release on

bail.

However, on a pertinent query being put, Mr. Ray, was not in

a position to dispute the fact that the petitioner herein was released

from custody after a delay of nearly 48 hours from the date i.e. 16th

December, 2023, the period when the police custody remand had

come to an end.

24.4 Regarding the proceedings taken on the

complaint of custodial violence made by the petitioner,

learned counsel urged that contemnor-respondent No.

7 was acting well within her jurisdiction by virtue of

provisions contained in CrPC when she questioned the

petitioner and also conducted preliminary body

examination so as to take note of the injuries, if any,

suffered by him owing to the alleged custodial violence.

These facts were recorded in the court order sheet as

per the observations made during the course of

judicial proceedings. The formal complaint was

dismissed by the contemnor while exercising judicial

discretion conferred upon a Magistrate by virtue of

Section 203 CrPC. The order rejecting the complaint

has already been set aside by the High Court and since

the said complaint is sub judice, any expression by

this Court on this issue may have an adverse reflection

on the service record of the contemnor.

24.5 Mr. Ray reiterated that 6th ACJM(contemnorrespondent No. 7) was deluded by the prevailing

practice referred to supra while passing the order of

police custody remand. She had no intention

whatsoever to flout or disregard the order passed by

this Court and that she tenders unconditional apology

for any act or omission committed by her which may

be construed to be in disregard to the order dated 8th

December, 2023.

On these submissions, he implored the Court to condone the

unintentional act of the contemnor-respondent No.7 and to

discharge the contempt notice issued to her.

25. By way of additional submissions, Shri S.V. Raju, learned

ASG appearing on behalf of Kamal Dayani, Additional Chief

Secretary, Government of Gujarat(contemnor-respondent No. 1)

and Shri R. Basant, learned senior counsel appearing on behalf of

the High Court of Gujarat(respondent No. 8) tried to persuade the

Court that no contempt was committed by any of the contemnors,

by harping upon the prevailing practice in the State of Gujarat that

the Courts, be it the Sessions Court or the High Court while

passing pre-arrest bail orders under Section 438 CrPC, invariably

incorporate a clause to the effect that in case the Investigating

Officer wants to seek police custody of the accused, an application

in this regard may be filed before the concerned Magistrate who

would be empowered to direct that the accused in whose favour

the anticipatory bail order is passed, could be detained in police

custody under valid order of the concerned Magistrate. Learned

counsels thus, urged that the contemnors-respondent Nos. 1 and

8 who were acting under this misconception based on a longstanding practice formed by virtue of the Division Bench judgment

in Sunilbhai Sudhirbhai Kothari(supra) may not be castigated

as having acted in wilful disobedience of this Court’s order and

therefore, the contempt notices may be discharged while accepting

the unconditional apology tendered on behalf of them.

26. So far as contemnor-respondent Nos. 1 and 6 are concerned,

they have neither filed any affidavits nor any significant contest

was made on behalf of these contemnors-respondents to the

contempt proceedings presumably because the thrust of the

petitioner’s allegations regarding non-compliance/flouting of this

Court’s order is directed against the other respondents.

27. We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the material

available on record.

Discussion: -

28. Before proceeding to consider the rival submissions, at the

outset, we may note that a bare perusal of the order under

contempt dated 8th December, 2023 would leave no room for doubt

that the interim protection of anticipatory bail granted by this

Court to the petitioner was absolute, until modified or altered upon

final disposal of the Special Leave Petition(Crl.) No. 14489 of 2023

which is still pending consideration before this Court. The

language of the order was clear and unambiguous, hence, none of

the contemnors-respondents could have entertained any doubt in

their minds nor was there any scope for the interpretation that the

petitioner could be remanded to police custody during the

currency of the interim order dated 8th December, 2023.

29. Shri Ajay Kumar Tomar, Commissioner of Police,

Surat(contemnor-respondent No. 2) had no role to play in the

investigation or the proceedings pertaining to the remand of the

petitioner and thus, prima facie, he cannot be held responsible for

the contumacious acts. His role is limited to the aspect of non-

functionality of the CCTV cameras, and we would be dealing with

this aspect later.

The contempt notice issued to contemnor-respondent No.2 is

thus, discharged.

30. Shri Vijaysinh Gurjar, contemnor-respondent No. 3 being the

Deputy Commissioner of Police, Zone-4, Surat has sworn an

affidavit tendering unconditional apology for any of the

acts/omissions which may have led to the order of this Court being

flouted.

31. We may note that the reply affidavit of this Officer(contemnorrespondent No.3) is relevant only in context of non-functioning of

the CCTV cameras and the custodial torture allegedly meted out

to the petitioner during police custody for the period between 13th

December, 2023 and 16th December, 2023, wherein it is alleged

that the petitioner was beaten in the presence of the said

contemnor. The following averments are made in the reply affidavit

filed by contemnor-respondent No. 3:-

31.1 At para 6 of the reply affidavit, it has been stated

that the respondent was busy in the preparation and

deployment on account of visit of the Hon’ble Prime

Minister of India in Surat on 17th December, 2023. In

connection with the said preparations, he had briefly

visited Vesu Police Station on 13th December, 2023. He

has denied having any role to play in the investigation of

the FIR lodged against the petitioner.

The issue regarding custodial violence allegedly meted out to

the petitioner is subject matter of departmental proceedings and is

also sub judice in proceedings of the criminal complaint filed by the

petitioner. Thus, it is neither necessary nor justified to make any

observation thereupon because the said aspect has no live link to

the contempt proceedings.

31.2 Regarding the aspect of non-functioning of CCTV

cameras installed at Vesu Police Station and storage

thereof, the contemnor-respondent No. 3 has come out

with the following details in para 7 of the reply affidavit:-

7. “That in so far as the CCTV footage of the Vesu Police

Station for the period 13.12.2023 to 16.12.2023 is

concerned, it is humbly that my office has received the

FSL Report dated 25.01.2024 sent by the Directorate of

Forensic Science, Gujarat State, Gandhinagar,

regarding the recording of the CCTV cameras installed

at the Vesu Police Station, which has inter-alia opined

that the DVR and the Hard disc of the CCTV cameras

were not physically damaged and were found in working

condition and that One lakh four thousand seven

hundred ninety-nine(1,04,799) CCTV video footages and

clips were found present in the Hard disk, which

occupied the entire space of the hard disk i.e. 1.81

TB/1.81 T. The footages shows the time period from

09.01.2000 to 13.01.2000, 29.05.2020 to 20.07.2020,

23.10.2023 to 28.11.2023 and 12.01.2024 to

12.01.2024. However, “the CCTV video footage(s)/clip(S)

having date stamp i.e. 13.12.2023 to 16.12.2023 were

not found in the Hard disk Exh-H1 of the DVR Exh-1”.

32. Going by the above averments, it is clear that the mandate to

install and ensure functionality of CCTV cameras in all police

stations by virtue of this Court’s judgment in the case of Paramvir

Singh Saini(supra) has not been complied in letter and spirit by

the concerned police officials. Even if we accept the fact that CCTV

cameras were installed in some parts of Vesu Police Station and it

is the DVR which was not functional, the fact remains that no

CCTV camera was installed in the interrogation room of the police

station which is an admitted position as evident from the record.

However, we feel that these shortcomings should be dealt with at

the departmental level rather than being made subject of these

contempt proceedings.

The contempt notice issued to contemnor-respondent No.3 is

thus, discharged.

33. The language of the remand application filed by the

Investigating Officer, Shri R.Y. Raval(contemnor-respondent No.4)

would be relevant for dealing with his case and hence, the same is

reproduced hereinbelow: -

“To

5th Additional Senior Civil Judge and

Additional Civil Judicial Magistrate,

New Court Building, Surat City

SUB TO ALLOW REMAND FOR DAYS-7 OF ACCUSED

PERSON

I, R.Y.Rawal, I/c Police Inspector Vesu Police Station Surat

City respectfully submitting that,

On 21/07/2023 Complainant Abhishek Vinodkumar

Goswami Aged: 28 years Occupation: Business of Real Estate

residing at C/405, Surya Palace, City Light, Surat City Mobile No

9879215044 preferred complaint before Vesu Police Station Part

A 11210068230266/2023 for offence committed under Section

420,120(B) of Indian Penal Code against Accused persons (1)

Partners of Shrestha Group Developers Bhavinbhai Durhabbhai

Patel Resident of Navi Colony Sarthana Village Surat Mobile No

9925112073 (2) Pradip Tamakuwala Mobile No 9227906150 (3)

Vasant Patel (4) Tusharbhai Rajnikantbhai Shah Mobile No

9825038475 (5) Sumit Goenka Mobile No 7710827133 (6) Rajsing

Mobile No 6353949599 (7) Omkarsing Mobile No 9106115519 and

the facts of the compliant are that,

On 28/01/2023 at around 1600 hrs Accused person no 4 and 5

of the matter shown shop no 204, 301, 302, 303, 304, 305, 306,

307, 308, 309, 404, 405, 407, 408, 409 in total 15 shops situated

at Vesu VIP Road, Solarium Business Center and accused no 4

Tushar Shah himself informed that he was the builder and

assured that the project was his, the Complainant and witness

Akhil Ramanuj Bhattar were ready to buy 15 shops and paid Rs.

1,65,00,000/- (in words One Crore Five Sixty Lakh only) was paid

to accused no. 4 and cheque of Rs. 54,00,000/-(in words Rupees

Fifty four lakhs only) was also paid, after which a diary of full

payment was also produced in presence of accused no. 5, 6, 7 and

even after frequently informing all the accused of this matter

neither the Deed of shops executed nor returning the money and

committed the offence by making pre-planned criminal conspiracy

by accused person against complainant and witness.

For said matter accused in the above offence, Tushar Rajinikanth

Shah, aged: 43 years Occupation: Business Residing at Flat No.

E/902, Florence Building, Opposite Rajhans Cinema, VIP Road,

Vesu Suraj City having Mobile No 9825038475 was arrested on

11/12/2023 at 2100 hrs and on 08/12/2023 the accused allowed

anticipatory bail application vide order passed by Hon’ble

Supreme Court of India Special in the matter of Leave Application

No. 14489/2023 so that the accused in this matter released on

bail on furnishing suitable sureties based on the order of the

Supreme Court of India and they While obtaining a detailed

statement, they are concealing the truth during the investigation

proceedings so that the accused should be remanded in police

custody for day-07 to investigate the offence.

GROUNDS FOR REMAND

1. During course of investigations proceeding of this matter,

on prima facie evidence found against the accused Tusharbhai

Shah in which the complainant himself stated to be the builder of

said Builder which is the fact that the present accused had prima

facie intention with the accused in a pre-planned manner with the

other accused in this matter. It was found that there is disloyalty

[betrayal]of the complainant so that it is necessary to investigate

the entire pre-planned conspiracy with the other accused so that

the present accused is required to be in police custody.

2. Accused person of this matter Tushar Shah issued

cheques to the complainant of Kotak Mahindra Bank,

Kumbhariya Cheque No. (1) 000394 dated 31/01/2023 signed in

the name of authorized signatory of Branch, Surat for a sum of

Rs. 2,00,000/- and (2) 000395 dated 31/01/2023 for a sum of

Rs. 2,00,000/-(3) 000396 dated 31/01/23 a sum of Rs.

2,00,000/-(4) 000397 dated 31/01/2023 a sum of Rs. 2,00,000/-

(5) 000398 31/01/2023 a sum of Rs.2,00,000/-(6) 000022

14/02/2023 a sum of Rs. 11,00,000/- (7) 000021 10/02/2023 a

sum of Rs. 11,00,000/- (8) 000023 dated 18/02/2023 a sum of

Rs. 11,00,000/- (9) 00024 dated 20/02/23 a sum of Rs.

11,00,000/- and with regard to said cheques, Accused have not

disclosed any material fact that they are not cooperating with the

investigation proceedings regarding the places where the Cheques

are kept and also all the above Cheques are important

circumstantial evidences which have to be grabbed [seized] for the

purpose of investigation proceedings so the presence of the

accused in the police custody is required.

3. The complainant and the witness paid a sum of Rs.

1,65,00,000/- (in words Rupees One Crore Sixty Lakh only) to the

accused in various installments which they have not admitted to

have taken even in cash and what was the use of such a huge

amount. Investigation proceedings are to be conducted so that the

presence of the accused in the police custody is required.

4. Against the accused of this matter, Umra Police Station

First Criminal Register No. 62/2019 for offence committed u/s

447, 448, 451, 427, 114 of Indian Penal Code registered so that

the accused has a criminal history apart from this how many

other offences have they committed while during course of

interrogation, they are passing the time by giving wayward replies

and many important information from this inquiry may come out

during the course of investigation proceedings which cannot be

obtained without presence during their investigation so the police

custody of accused person is essential.

5. Ever since the offence was filed against the accused in this

matter, he is on the run till date and the other co-accused in this

matter are hiding information about them, which also needs to be

investigated so that the police custody of accused person is

essentially required.

Considering the above grounds, we request to approve the police

custody remand of the accused on Day-07. A copy of the diary is

enclosed herewith which please note by Your Honor.

13/12/2023 R.Y Raval

Police Inspector

I/c Vesu Police Station

Surat City”

34. At para No. 3 of the remand application, the Investigating

Officer(contemnor-respondent No.4) has noted that the accusedpetitioner did not admit having taken cash to the tune of Rs. 1.65

crores which the complainant claims to have paid to the accusedpetitioner in various instalments. Para No. 4 of the application

reads that Crime No. 62/2019 had been registered against the

accused at P.S. Umra for the offences punishable under Sections

447, 448, 451, 427 and 114 of the Indian Penal Code, 1860 and it

was imputed that the accused had a criminal history and that he

was giving evasive replies to the questions being put to him.

However, it is pertinent to note that the Investigating Officer never

made any effort to re-summon the accused for investigation even

for a single time after 12th December, 2023 when abruptly a notice

to appear before the Additional Chief Judicial Magistrate was given

to the accused for seeking his police remand. The language of the

notice has been reproduced at para 5(supra) and it does not give a

whisper of indication that the accused was not cooperating in the

investigation.

35. We are of the firm opinion that non-cooperation by the

accused is one matter and the accused refusing to confess to the

crime is another. There would be no obligation upon the accused

that on being interrogated, he must confess to the crime and only

thereafter, would the Investigating Officer be satisfied that the

accused has cooperated with the investigation. As a matter of fact,

any confession made by the accused before a police officer is

inadmissible in evidence and cannot even form a part of the record.

36. This Court vide order dated 12th July, 2024 passed in

Petition for Special Leave to Appeal (Crl.) No.10536/2023

titled as ‘Sanuj Bansal v. The State of Uttar Pradesh & Anr.’

has held that such confessions recorded in the interrogation notes

of the accused cannot form part of the charge sheet.

37. Looking at the allegations in the FIR, we are of the firm view

that the Investigating Officer should have, at the first instance, put

the complainant to serious questioning and strict proof because

while alleging in FIR that he had given a huge sum of Rs. 1.65

crores to the accused-petitioner, the complainant(contemnorrespondent No. 6) himself had acted in gross contravention of the

provisions of the Income Tax Act, 1961 and the Prevention of

Money Laundering Act, 2002(for short ‘PMLA’). By blindly placing

reliance on the unverified allegations of the complainant based on

a huge cash transaction and registering the FIR without even

making a basic enquiry on this vital aspect, the police officials to

be specific, the Investigating Officer(contemnor-respondent No. 4)

clearly colluded with the complainant(contemnor-respondent No.

6) by trying to give the civil dispute, based on allegation of breach

of oral agreement, the colour of a crime.

38. The complainant(contemnor-respondent No. 6) categorically

stated in the FIR that it was he who had given cheques of about

Rs. 54 lakhs to the petitioner and it was agreed that on clearance

of the cheques, the accused-petitioner would execute the

registered sale deed in respect of the subject property in favour of

the complainant. In clear contradiction to this allegation of the

complainant, the Investigating Officer at para No. 2 of the remand

application(supra) noted that the cheques of Kotak Mahindra Bank

had been signed by accused-petitioner for being given to the

complainant(contemnor-respondent No. 6) and that he was not

getting the same recovered. The above statement made in the

remand application seems to be at sheer variance with the

allegation set out in the FIR that the cheques were given by the

complainant to the petitioner i.e., Tusharbhai Shah and not vice

versa. The assertion made in the FIR, that the accused-petitioner

was not lodging the cheques of the complainant(contemnorrespondent No. 6) in his bank and was holding on to the same was

clearly a wishful allegation created somehow or the other for

framing the accused in a criminal case, rather than resorting to

civil proceedings. It is not even the stated case of the complainant

that before lodging the FIR, he had asked the accused-petitioner

to return the cheques to him.

39. We may also state, had the accused-petitioner suffered an

information under Section 27 of the Indian Evidence Act, 1872,

which gave rise to a reasonable belief that such information could

lead to discovery of an incriminating fact, perhaps the remand

application could have been justified to some extent. However,

that is not the situation in the case at hand.

40. The narration made in the remand application that the

Investigating Officer wanted to find out about the criminal

antecedents of the accused is also fanciful on the face of it. With

the digitisation of the records, the criminal antecedents/records of

accused would be readily available on CCTNS i.e., Crime and

Criminal Tracking Network System and thus, the Investigating

Officer could not have sought police custody remand of the

accused in order to find out his criminal antecedents.

41. Apparently thus, the Investigating Officer(contemnorrespondent No. 4), while filing the remand application, made

blatant misinterpretations and procured the police custody of the

accused-petitioner who was under the protective umbrella of this

Court’s order dated 8th December, 2023.

42. 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.

43. Now, we shall take up the case of the contemnor-respondent

No. 7 being the 6th Additional Chief Judicial Magistrate, Surat who

passed the order dated 13th December, 2023 granting police

custody remand of the petitioner. The contemnor has made the

following averments in her reply affidavit: -

43.1 At para No. 2 of the reply affidavit, the officer has

offered unconditional apology for what has been termed

to be a bona fide mistake in interpretation of the order

of this Court.

43.2 In para No. 3 of the reply affidavit, the contemnorrespondent No. 7 has emphatically stated that this Court

had granted ad-interim relief to the petitioner subject to

the condition of cooperating with the Investigating

Agency and being the Court of 6th ACJM, the officer was

vested with the jurisdiction under Section 167 CrPC to

grant police custody remand of the accused. The officer

has projected in the reply affidavit that by granting police

remand of the accused-petitioner, she rather ensured

the compliance of this Court’s order with bona fide

objective of ensuring that the investigation is carried out

fairly.

43.3 At para No. 3.1 of the reply affidavit, the

contemnor-respondent No. 7 has sworn that upon

receiving the remand application from the Investigating

Agency, alleging non-cooperation in the investigation by

the petitioner, she merely followed the practice and

procedure prevalent in the State of Gujarat, wherein the

Courts issue anticipatory bail orders with a direction to

the accused-petitioner to cooperate with investigation

and upon failure to do so, liberty is given to the

Investigating Officer to seek police remand. The

contemnor-respondent No. 7 has annexed certain orders

of the High Court of Gujarat to buttress this plea taken

in the affidavit in reply to the contempt notice.

43.4 That the petitioner was served with the notice

directing him to remain present before the Court of 6th

ACJM for the purpose of seeking his police remand. This

notice was at the behest of the Investigating Officer and

was routed through the Assistant Public

Prosecutor(APP). The Investigating Officer sought 7 days

remand of the petitioner on the ground that he was not

cooperating with the investigation as directed by this

Court. The petitioner, neither filed any written protest

nor any affidavit to oppose the remand application. He

also did not make an affirmative statement of having

cooperated with the Investigating Agency by providing

information and documents in his possession. An

emphatic denial has been given by the contemnorrespondent No. 7 to the plea of the petitioner that the

order granting police remand was passed without

providing a fair opportunity of hearing to the petitioner

or his Advocate.

43.5 At para No. 5.3 of the reply affidavit, the

contemnor-respondent No. 7 has reiterated that this

Court vide order dated 8th December, 2023, granted adinterim relief in favour of the petitioner with a direction

to the petitioner to cooperate with the investigation and

thus, order of remand was passed considering the

purport of para 5 of the order(supra) dated 8th December,

2023.

43.6 At para No. 5.4 of the reply affidavit, contemnorrespondent No. 7 has stated that as the order of this

Court was not being complied with by the petitioner and

since investigation was permitted to be continued, the

contemnor was under a bona fide belief of having the

power to hear and allow the remand application. It is in

the course of exercise of judicial discretion conferred on

the officer by law, that the order dated 13th December,

2023 came to be passed.

43.7 The complaint of ill-treatment made by the

petitioner was dealt with by the contemnor-respondent

No. 7 by following the procedure prescribed in para 14

of the Criminal Manual, Gujarat High Court. Since the

petitioner made a complaint of ill-treatment by police in

presence of his Advocates, the contemnor-respondent

No.7 proceeded to make physical observation of the

petitioner wherein no external injury or mark of violence

was found on his body which fact was recorded in the

statement of the petitioner which was also signed by

him.

43.8 At para No. 7 of the reply affidavit, it is stated that

the petitioner filed a bail application under Section 437

CrPC without there being any order taking him in

judicial custody. The said application was submitted

before the Registry of the Court and was registered in the

Central Filing System and thereafter, placed before the

Court. The Assistant Public Prosecutor(APP) objected to

the prayer for bail, but the contemnor-respondent No. 7

considering the facts and circumstances of the case and

the ad-interim relief granted to the petitioner by this

Court, directed his release on bail.

43.9 At para No. 8 of the reply affidavit, it has been

stated that 8th Additional Chief Judicial Magistrate,

Surat passed an order to keep the complaint filed by the

petitioner alleging ill-treatment in police custody for

verification, but since the petitioner had admitted that

his complaint of custodial violence had already been

recorded by the contemnor-respondent No.7 on the very

date of the completion of the remand period, i.e., 16th

December, 2023, she thought it fit to pass a detailed

order dismissing the complaint on 6th January, 2024 by

exercising jurisdiction under Section 203 CrPC. The

contemnor-respondent No. 7 has pleaded that to her

knowledge, the petitioner has not challenged the said

judicial order.

At this stage, it would be apposite to note that the contemnorrespondent No. 7 has assigned no reasons in the reply affidavit as

to how the order dated 21st December, 2023 passed by the

predecessor, i.e., 8th Additional Chief Judicial Magistrate directing

that the complaint should be placed for verification which would

mean recording the statements under Sections 200 and 202 CrPC

could have been reviewed by her. Be that as it may, the order dated

6th January, 2024 passed by the contemnor-respondent No. 7 has

already been set aside by the High Court of Gujarat by exercising

revisional jurisdiction vide order dated 22nd December, 2024

passed in R/Criminal Revision Application No. 273 of 2024.

43.10 At para Nos. 10 and 10.1 of the reply affidavit, it

has been pleaded that the contemnor-respondent has

served the judiciary honestly, sincerely and with total

commitment since 2010 and that she continues to

discharge her duties within the four corners of law. She

had bona fide misinterpreted the order of this Court and

her sole intention was to secure the interest of justice

and hence, the acts alleged should not be termed to be

wilful and deliberate disobedience of this Court’s order

dated 8th December, 2023 as alleged by the petitioner.

44. The contemnor-respondent No. 7 has placed emphatic

reliance on the following lines from this Court’s order dated 8th

December, 2023: -

“5. However, the petitioner is directed to cooperate with the

investigation and report to the Investigating Officer as and

when directed to do so.”

It was contended on her behalf that by directing the petitioner

to cooperate with the investigation, this Court had given liberty to

the Investigating Officer to seek his police custody, in case, he did

not cooperate with the investigation. She tried to make out a case

that by passing the order granting police custody remand of the

petitioner, she rather ensured the compliance of the above

direction issued by this Court.

45. The 6th ACJM(contemnor-respondent No.7) has laid much

stress in her affidavit upon the fact that the Investigating Officer

had noted in his application that the accused-petitioner was not

cooperating with the investigation. We fail to comprehend as to

what could be construed to be cooperation in a criminal case based

on allegations which prima facie appear to be in relation to a civil

dispute. The transaction inter se between the parties pertained to

sale and purchase of property. However, there was no written

agreement for documenting the alleged sale transaction.

Undisputedly, the accused-petitioner had appeared before the

Investigating Officer on 11th December, 2023 with the copy of the

order under contempt, immediately upon being summoned, at the

police station. Thus, there was neither bona fide nor genuine need

for grant of police custody of the petitioner.

46. The contemnor-respondent No. 7 in her reply affidavit has

tried to explain that the order granting police custody was passed

on the basis of a perception arising from the practice being followed

in the State of Gujarat based on the Division Bench judgment of

the High Court of Gujarat in the case of Sunilbhai Sudhirbhai

Kothari(supra). 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 approach of contemnor-respondent No. 7 in

first granting police custody of the petitioner on a clearly frivolous

and mala fide remand application filed by Investigating

Officer(contemnor-respondent No. 4), and in trying to justify the

same in her reply affidavit, that it was based on so called prevalent

practice in the State of Gujarat cannot be countenanced. 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 accusedpetitioner 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. This Court has placed the individual

freedom and right to liberty at the highest pedestal in numerous

decisions. Reference in this regard may be to the decision of this

Court in the case of Rekha v. State of T.N.,5 wherein it was held

as under:-

“14. Article 21 is the most important of the fundamental rights

guaranteed by the Constitution of India. Liberty of a citizen is a

most important right won by our forefathers after long,

(2011) 5 SCC 244

historical and arduous struggles. Our Founding Fathers

realised its value because they had seen during the freedom

struggle civil liberties of our countrymen being trampled upon

by foreigners, and that is why they were determined that the

right to individual liberty would be placed on the highest

pedestal along with the right to life as the basic right of the

people of India.”

(emphasis supplied)

47. If the order granting police custody remand was passed bona

fide based on some misconception, then, the contemnorrespondent No. 7 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 special leave petition filed on behalf of

the petitioner had not been finally decided and was still pending

adjudication, when the remand application was entertained and

hence, there was no occasion for the 6th ACJM(contemnorrespondent 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.

48. 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.

49. As discussed above, the FIR against the accused-petitioner

was pertaining to a dispute which prima facie appears to be of a

civil nature and hence, the learned Magistrate ought not to have

toed the line of the Investigating Officer while granting police

custody remand of the accused-petitioner.

50. As a matter of fact, the application seeking police custody

remand of the petitioner could not have been entertained without

seeking permission of this Court as observed in the case of

Sushila Agarwal(supra).

51. In this regard, we are benefitted by the judgment of this Court

in the case of Ashok Kumar v. Union Territory of Chandigarh6

wherein, it has been held 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 State would

have to show or indicate more than prima facie case as to why

custodial investigation of the accused is required for the purpose

of investigation.

6 2024 SCC OnLine SC 274

52. Moving further, it must be noted that at the end of the

remand period, the 6th ACJM(contemnor-respondent No. 7)

entertained an application filed on behalf of the accused-petitioner

under Section 437 CrPC and directed his release on bail on

furnishing bail bonds. Indisputably, the accused had already

furnished bail bonds to the Investigating Officer pursuant to his

appearance on 11th December, 2023 and hence, the direction given

by the contemnor-respondent No. 7 in requiring the accused to

furnish a fresh set of bail bonds for his release from custody was

improper and clearly contumacious. The explanation sought to be

offered regarding the misconception that had played in the mind

of contemnor-respondent No. 7 may have been accepted, had the

accused been released without insisting for fresh bail and bonds.

However, the fact that a formal application was taken under

Section 437 CrPC and only thereafter, the accused-petitioner was

released on bail is in clear defiance of this Court’s order dated 8th

December, 2023. The period between the culmination of the police

custody remand and the release of the accused-petitioner upon

furnishing bail bonds i.e. from 16th December, 2023 to 18th

December, 2023 is a grey area in which there was no order

authorising the custody of the petitioner and thus clearly the

petitioner was illegally detained for nearly 48 hours.

53. It is pertinent to note that the learned senior counsel

appearing for the petitioner had taken a strong exception to the

remand application which fact is noted in the proceedings sheet

dated 13th December, 2023. However, the contemnor-respondent

No. 7 brushed aside the said objection which according to us, was

bound to be sustained without any exception, since this Court’s

order was unambiguous and only possible interpretation was that

the petitioner should be released on bail, in the event of his arrest.

54. We, prima facie feel that the contemnor-respondent No. 7

seems to have acted in defence of the police officials when she

made a note on the complaint of custodial violence made by the

petitioner on 16th December, 2023, that after personally examining

the feet of the accused, she did not find any injury thereupon. Law

requires that the moment the accused had made a complaint of

torture in police custody, it was incumbent upon the concerned

Magistrate to have got the accused subjected to medical

examination as per the mandate of Section 54 CrPC. The formal

complaint lodged by the petitioner herein was proceeded with by

8th Additional Chief Judicial Magistrate who took cognizance

thereof on 22nd December, 2023 and directed that the complaint

be posted for verification. The only permissible action as per law

after cognizance had been taken on a private complaint, would be

to record the statements of the complainant and his witnesses by

taking recourse to the mandatory procedure prescribed under

Sections 200 and 202 CrPC. However, in sheer disregard to the

order dated 22nd December, 2023 passed by 8th Additional Chief

Judicial Magistrate, the 6th ACJM(contemnor-respondent No.7)

dismissed the complaint filed by the petitioner vide order dated 6th

January, 2024 which has been rightly reversed by the High Court

of Gujarat vide order dated 22nd February, 2024 passed in

R/Criminal Revision Application No. 273 of 2024. This conduct of

contemnor-respondent No. 7 gives a strong indication of her biased

approach in the matter.

55. 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. However, the Court

adjudicating an application for anticipatory bail may, in a given

case, restrict the tenure of anticipatory bail in view of the law laid

down by this Court in the case of Sushila Agarwal(supra) and

may also impose suitable conditions in light thereof. 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 relevant

excerpts in this regard from the Constitution Bench judgment of

this Court in the case of Sushila Agarwal(supra) are reproduced

below for the sake of ready reference: -