Summary
While the Supreme Court's interim order directing release of the petitioner on bail if arrested was in force, a Surat Police Inspector sought, and an Additional Chief Judicial Magistrate granted, police custody remand of the petitioner; he was later held for about 48 hours after the remand ended. The Court held both officers guilty of contempt, rejected the plea of a Gujarat practice of reserving police remand in anticipatory bail orders as contrary to Sushila Aggarwal, held the Gujarat High Court's decision in Sunilbhai Sudhirbhai Kothari impliedly overruled, discharged the other respondents, and made the interim anticipatory bail absolute.
Issues
- Whether an investigating officer and a Magistrate committed contempt by seeking and granting police custody remand of an accused protected by the Supreme Court's interim anticipatory bail order.
- Whether a practice of routinely permitting investigating officers to seek police remand of an accused granted anticipatory bail is consistent with Section 438 CrPC and Sushila Aggarwal v. State (NCT of Delhi).
- Whether the accused's detention after the remand period and the insistence on fresh bail bonds were lawful.
- What a Magistrate must do when an accused complains of custodial torture.
Provisions considered
- Section 12 read with Article 129 of the Constitution, Contempt of Courts Act, 1971The petition alleging wilful disobedience of the order dated 8 December 2023 was filed under these provisions; the Investigating Officer and the Magistrate were found guilty of contempt and the other respondents were discharged. (¶¶ 1, 59.3, 59.4, 60, 61)
- Section 438 (now Section 482 BNSS), Code of Criminal Procedure, 1973Neither provision contemplates liberty to the investigating officer to obtain police custody of an accused granted anticipatory bail. Restrictive conditions may be imposed case by case but not routinely, and the police may approach the court that granted anticipatory bail under Section 439(2) if its terms are breached. (¶¶ 50, 55, 56, 58)
- Section 167, Code of Criminal Procedure, 1973The Magistrate relied on her remand power; the Court held that remand requires application of judicial mind to whether custody is genuinely needed and could not be granted in the face of the Supreme Court's protective order. (¶¶ 43.2, 48, 49)
- Section 437, Code of Criminal Procedure, 1973Having already furnished bonds to the police under the Supreme Court's order, the accused could not be made to file a fresh bail application and bonds before release at the end of remand. (¶¶ 43.8, 52)
- Sections 54, 200, 202 and 203, Code of Criminal Procedure, 1973On a complaint of custodial torture the Magistrate had to have the accused medically examined under Section 54 rather than inspect him herself. After cognizance and an order for verification, the statements of the complainant and witnesses had to be recorded under Sections 200 and 202, so dismissal under Section 203 without doing so was improper. (¶¶ 12, 13, 54)
- Articles 20 and 21, Constitution of IndiaDetention of the accused from the end of police remand until release, with no order authorising custody, was unconstitutional. (¶¶ 46, 52)
- Section 27, Indian Evidence Act, 1872Remand might have been somewhat justified if the accused had given information leading to discovery, which was not the case; confessions to police are inadmissible and refusal to confess is not non-cooperation. (¶¶ 35, 39)
Held
- The Court's interim order directing that the petitioner be released on bail if arrested was clear and absolute until modified on final disposal of the SLP. It left no room to interpret it as permitting police custody remand, and if custodial interrogation was genuinely needed, the proper course was to approach the Supreme Court. (¶¶ 28, 42, 47, 53)
- Non-cooperation is different from refusing to confess; an accused is not obliged to confess, and confessions to police are inadmissible. The remand application, made after only a few hours of questioning, misstated the FIR on who issued the cheques, cited criminal antecedents readily available on CCTNS, and disclosed no Section 27 discovery. The FIR itself prima facie disclosed a civil dispute over an oral sale agreement, and the officer had not tested the complainant's claim of a huge cash payment. (¶¶ 34, 35, 37, 38, 39, 40, 41, 45)
- Before granting police custody remand, courts must apply judicial mind to whether it is genuinely required. They are not messengers of investigating agencies and must not allow remand applications routinely. (¶¶ 48, 49, 51)
- A practice of routinely inserting in anticipatory bail orders a blanket liberty for investigating officers to seek police remand frustrates the purpose of anticipatory bail and contravenes the Constitution Bench ruling in Sushila Aggarwal. The Gujarat High Court's Division Bench decision in Sunilbhai Sudhirbhai Kothari does not hold good and stands impliedly overruled. (¶¶ 55, 56, 57, 58)
- Since the accused had already furnished bonds under the Supreme Court's order and no order remanded him to judicial custody, requiring a fresh bail application and bonds, and detaining him for nearly 48 hours after police remand ended, was contumacious and violated Articles 20 and 21. (¶¶ 46, 47, 52)
- A Magistrate receiving a complaint of custodial torture must have the accused medically examined under Section 54 CrPC rather than personally inspect him. Dismissing the later private complaint without recording statements under Sections 200 and 202, contrary to the order for verification already passed, indicated bias. (¶ 54)
- The Investigating Officer, whose claim of non-cooperation was fabricated, and the Magistrate, whose plea of a bona fide misunderstanding based on State practice was rejected, were guilty of contempt. The Commissioner of Police and Deputy Commissioner were discharged, the lapses on CCTV cameras under Paramvir Singh Saini being left to departmental action, and the complainant was also discharged. (¶¶ 29, 32, 59.1, 59.2, 59.3, 59.4, 60, 61)
Result
Investigating Officer and 6th Additional Chief Judicial Magistrate, Surat held guilty of contempt of the order dated 8 December 2023 (contempt petition to be listed further); contempt notices to the Commissioner of Police, Deputy Commissioner of Police and complainant discharged; interim anticipatory bail orders in the three SLPs made absolute until the proceedings arising from the FIR conclude, and the SLPs disposed of.