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.

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 17 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 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 Another.

18.10 That as per the reply affidavit filed by the Commissioner of Police, Surat(contemnor-respondent 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.

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 Gujarat , 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 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
33
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.
34
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
35
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
36
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.
37
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
38
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.
39
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-
40
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
41
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,
42
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: –
43
“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
44
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
45
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
46
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
47
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
48
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.
49
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.
50
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.
51
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
52
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
53
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
54
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.
55
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.
56
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.
57
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
58
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,
5
(2011) 5 SCC 244
59
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
60
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
61
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
62
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
63
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: –
“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)
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 Enforcement7.
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
7 (2019) 9 SCC 24
67
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.
Conclusion: –
59. Having considered the rival submissions and upon a
threadbare discussion of the material available on record, we
conclude as below:-
59.1 Having considered the role attributed to
contemnor-respondent No. 2, the Commissioner of
Police, Surat, we find that there is not even a whisper
of an allegation against the said officer other than the
aspect relating to the non-functioning of the CCTV
cameras at the Vesu Police Station. Thus, the said
68
respondent cannot be held responsible for the noncompliance/contempt of this Court’s order dated 8th
December, 2023 and hence, the contempt notice
issued to the contemnor-respondent No.2 i.e, Ajay
Kumar Tomar, Commissioner of Police, Surat, is
discharged.
59.2 That contemnor-respondent No.3, Deputy
Commissioner, Surat, is not directly responsible for
non-compliance of this Court’s order dated 8th
December, 2023. However, his role in failing to ensure
proper installation and maintenance of CCTV cameras
in the police station can be made a subject matter of
enquiry at a departmental level, if so desired. Thus,
the contempt notice issued to contemnor-respondent
No. 3, Vijaysinh Gurjar, Deputy Commissioner of
Police, Zone-4, Surat, is discharged.
59.3 That the Investigating Officer, contemnorrespondent No. 4, Police Inspector acted in flagrant
defiance and gross contempt of this Court’s order
dated 8th December, 2023 by applying for police
custody remand of the petitioner herein. The portrayal
69
made by the Investigating Officer in the remand
application to claim that the accused-petitioner was
not cooperating in the investigation was totally cooked
up and a clear attempt to draw wool over the Court’s
eyes. During subsistence of this Court’s order dated
8th December, 2023, there was neither any authority
with the Investigating Officer to seek police custody
remand of the accused nor was the prayer for remand
justified in the backdrop of the fact that the FIR itself
was lodged in relation to a civil dispute which arose
from an oral agreement for sale of property. A clear
misrepresentation was made in the remand
application wherein, the Investigating Officer projected
that the cheques issued by the accused-petitioner had
to be recovered. It is an admitted position as per the
FIR, that the cheques had been issued by the
complainant to the accused-petitioner and not vice
versa. By failing to test the truth of the complainant’s
allegations regarding transmission of huge cash
amount to the tune of Rs. 1.65 crores to the accused,
the Investigating Officer acted in sheer ignorance to
70
the mandate of the Income Tax Act, 1961 as well as
the provisions of PMLA. Admittedly, the Investigating
Officer(contemnor-respondent No. 4) had only made
investigation from the accused for a few hours on 12th
December, 2023 and immediately thereafter, the
police custody remand application came to be
submitted. The notice for remand to the accused on
12th December 2023 does not indicate that he had not
cooperated in the investigation.
We are, therefore, inclined to hold that there was
not even a shred of bona fide in the actions of the
Investigating Officer(contemnor-respondent No.4)
while seeking police custody remand of the accused on
the purported ground of non-cooperation in
investigation. The exercise of seeking police custody
remand during currency of the interim protection
granted to the petitioner was in sheer defiance of this
Court’s order dated 8th December, 2023 and
tantamounts to contempt on the face of the record.
Hence, we have no hesitation in holding that while
seeking for and procuring the police custody remand
71
of the accused in the teeth of the order dated 8th
December, 2023, the Investigating Officer, R.Y. Raval,
Police Inspector, Vesu Police Station,
Surat(contemnor-respondent No. 4) is guilty of gross
contempt.
59.4 That the explanation offered by 6th
ACJM(contemnor-respondent No.7), that the order
dated 13th December, 2023 granting police custody
remand of the petitioner was passed in the bona fide
exercise of jurisdiction, based on a genuine
misunderstanding of the legal position does not appeal
to us. In view of the findings recorded in preceding
paras, it is clear that contemnor-respondent No. 7
acted with bias and in a high-handed manner while
granting police custody remand of the accused. The
reason offered by her that she was acting under a
misconception owing to settled and prevailing practice
in the State of Gujarat, is clearly in disregard to the
order passed by this Court. The said plea does not hold
water since the order under contempt dated 8th
December, 2023 allowed only one interpretation i.e.
72
the accused-petitioner had to be released on bail in the
event of arrest. The action of the contemnorrespondent No.7 in granting police custody remand of
the petitioner and in failing to release him upon
completion of the aforesaid period is clearly in teeth of
this Court’s order dated 8th December, 2023 and
tantamounts to contempt. The contemnor-respondent
No. 7’s contumacious actions also contributed to the
illegal detention of the petitioner for almost 48 hours
after the period of police remand had come to an end.
60. Accordingly, the contempt notices issued to respondent
Nos. 2 i.e., Ajay Kumar Tomar, Commissioner of Police, Surat,
respondent No. 3 i.e., Vijaysinh Gurjar, Deputy Commissioner
of Police, Zone-4, Surat and respondent No. 6 i.e., Abhishek
Vinodkumar Goswami(complainant) stand discharged.
61. As a result of the above discussion, we hold R.Y. Raval,
Police Inspector, Vesu Police Station, Surat(contemnorrespondent No.4) and Deepaben Sanjaykumar Thakar, 6
th
Additional Chief Judicial Magistrate, Surat(contemnorrespondent No.7) guilty of having committed contempt of this
Court’s order dated 8
th December, 2023.
73
Special Leave Petition (Crl.) No(s). 14489 of 2023, 537 of 2024
and 1116 of 2024
62. The orders dated 8th December, 2023, 11th January, 2024
and 23rd January, 2024 passed by this Court in SLP Nos. 14489
of 2023, 537 of 2024 and 1116 of 2024, respectively are made
absolute and it is directed that the ad-interim anticipatory bail
granted to the petitioners shall enure till culmination of the
proceedings from the FIR No. 11210068230266 of 2023 dated 21st
July, 2023.
63. The special leave petitions are accordingly disposed of.
64. Pending application(s), if any, shall stand disposed of.
(B.R. GAVAI)
(SANDEEP MEHTA)
New Delhi;
August 07, 2024