While Granting Anticipatory Bail, Courts Cannot Give Blanket Permission To Investigating Officers To Seek Police Custody Remand Of Accused: Supreme Court

The Supreme Court held that the practice in Gujarat Courts of giving blanket permission to investigating officers to request police custody remand of the accused while granting anticipatory bail is illegal.

In that context, the Bench of Justice BR Gavai and Justice Sandeep Mehta observed that, "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".

Background

The petitioner, accused in a cheating case, approached the Supreme Court after the Gujarat High Court denied him bail.

On December 8, 2023, the Supreme Court issued notice on his petition and granted him interim anticipatory bail, requiring him to cooperate with the investigation. Despite this, on December 12, 2023, he was served a notice to appear before the Magistrate in response to the police's custody application. The Magistrate remanded him to police custody for four days until December 16. The petitioner alleged that he was threatened and beaten while in police custody.

On January 10, the Supreme Court issued contempt notices to the Additional Chief Secretary of the Home Department of the Gujarat Government, the Commissioner of Police, the Deputy Commissioner of Police, Surat, and the Police Inspector of Vesu Police Station. A contempt notice was also issued to the 6th Additional Chief Magistrate, Surat, for remanding the petitioner to police custody despite the Supreme Court's interim order.

The Supreme Court held that the investigating officer should have sought clarification from the Court before taking the accused into custody. The Court stated, "If at all, by any stretch of imagination, the Investigating Officer felt genuine and bona fide requirement to seek police custody remand of the petitioner, then the proper course of action would have been to move this Court for seeking appropriate directions rather than moving the Magistrate by way of the remand application, which was tainted, malicious and a contemptuous act on the face of the record."

Regarding the conduct of the Magistrate, the Court rejected the explanation that it was standard practice in Gujarat to allow police to seek remand of an accused even when anticipatory bail was granted.

Further, the Court noted that the accused was detained until December 18, 2023, even though the police custody remand expired on December 16, 2023. 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.

The Court also asserted that if the order for police custody remand was made based on a misconception, the Magistrate should have ensured the accused's release immediately after the remand period ended. Additionally, the Court stressed that judicial mind must be applied to determine the necessity of custody remand, stating, "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."

The Court referred to the judgment in Ashok Kumar v. Union Territory of Chandigarh, stating that merely asserting the need for custodial investigation is insufficient. It also criticized the Magistrate for dismissing the petitioner’s complaint of custodial torture.

The Apex Court held that the Police Inspector and the Chief Judicial Magistrate were guilty of Contempt of Court for arresting and remanding an accused ignoring an interim anticipatory bail order In that context, it was said that, "we hold R.Y. Raval, Police Inspector, Vesu Police Station, Surat(contemnor- respondent No.4) and Deepaben Sanjaykumar Thakar, 6th Additional Chief Judicial Magistrate, Surat(contemnor- respondent No.7) guilty of having committed contempt of this Court's order dated 8th December, 2023".

The contempt notices against other officials were discharged.

Cause Title: Tusharbhai Rajnikantbhai Shah vs Kamal Dayani & Ors. (Neutral Citation: 2024 INSC 588)

Click here to read/download the Judgment