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Contempt of Court – When – Accused-petitioner was remanded to police custody during the currency of the interim order passed by Supreme Court granting anticipatory bail to him – Contempt petition filed by the petitioner against the respondents (the police officials and the ACJM) for wilful disobedience and contempt of the Court’s order: Held: There was no such stipulation in the order under contempt dtd. 08.12.2023 which was passed exercising jurisdiction u/Article 136 of the Constitution of India that the accused could be remanded to police custody – The portrayal made by the Investigating Officer (IO)-contemnor-respondent No. 4 in the remand application to claim that the petitioner was not cooperating in the investigation was totally cooked up – During subsistence of the order dtd. 08.12.2023, there was neither any authority with the IO 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 – There was neither bona fide nor genuine need for grant of police custody of the petitioner – Thus, respondent No.4, acted in flagrant defiance and gross contempt of the aforesaid order by applying for police custody remand of the petitioner – Further, the ACJM-contemnor-respondent No.7 also acted with bias and in a high-handed manner while granting police custody remand of the accused – The SLP 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 her 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 IO – The reason offered by her that she was acting under a misconception owing to settled and prevailing practice in the State of Gujarat, is in disregard to the order passed by this Court – Order under contempt allowed only one interpretation i.e. the petitioner had to be released on bail in the event of arrest – The action of the respondent No.7 in granting police custody remand of the petitioner and in failing to release him upon completion of the said period is clearly in teeth of this Court’s order dtd. 08.12.2023 and tantamounts to contempt – 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 – Detention of the accused till 18.12.23 was unconstitutional and contrary to the letter and spirit of Articles 20 and 21 – Respondent Nos.4 and 7 guilty of committing contempt of this Court’s order dtd. 08.12.2023. [Paras 45-47, 59.3, 59.4, 60] Code of Criminal Procedure, 1973 – s.438 – Bhartiya Nagarik Suraksha Sanhita, 2023 – s.482 – Anticipatory bail – Investigating Officer (IO), if has the liberty to seek police custody remand of the accused after anticipatory bail has been granted by the competent Court – Plea of the Government of Gujarat and the High Court of Gujarat about such long-standing practice prevailing in the State of Gujarat: Held: Power to grant anticipatory bail is to be exercised with a great degree of circumspection and not in a routine manner – Once, a Court exercises such power bearing in mind the strict parameters applicable to grant of anticipatory bail, then giving a handle to the IO to seek police custody remand of the accused, would virtually negate and frustrate the very purpose behind the order of anticipatory bail – Neither s.438, CrPC nor s. 482, BNSS, 2023 contemplate any such liberty to the IO – The practice prevalent in the State of Gujarat that the Courts while dealing with the anticipatory bail application routinely impose the restrictive condition whereby, the IOs 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 Aggarwal v. State (NCT of Delhi) reported as [2020] 2 SCR 1. [Paras 55, 58] Criminal jurisprudence – Power to grant police remand – Exercise of, not to be in a routine manner – FIR was filed against the accused-petitioner in a prima facie civil dispute pertaining to sale and purchase of property – He was remanded to police custody during the currency of the interim order passed by Supreme Court granting anticipatory bail to him – Impermissibility: Held: 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 – 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 – Courts are not messengers of the investigating agencies and the remand applications should not be allowed in a routine manner – In the present case, the FIR against the petitioner was pertaining to a dispute which prima facie appears to be of a civil nature and hence, the Magistrate ought not to have toed the line of the Investigating Officer while granting police custody remand of the petitioner – Application seeking police custody remand of the petitioner could not have been entertained without seeking permission of this Court as observed in Sushila Aggarwal v. State (NCT of Delhi) reported as [2020] 2 SCR 1. [Paras 48-50] Criminal Law – Investigation – On being interrogated, accused not obligated to confess to the crime: Held: 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. [Para 35] Code of Criminal Procedure, 1973 – ss.54, 200, 202 – Non-compliance – Complaint of custodial violence by the accused-petitioner– ACJM-contemnor-Respondent No.7 made a note on the complaint that after personally examining the feet of the accused, she did not find any injury thereupon: Held: When the accused makes a complaint of torture in police custody, it is incumbent upon the concerned Magistrate to have got the accused subjected to medical examination as per the mandate of s.54 – The formal complaint lodged by the petitioner on 16.12.2023 was proceeded with by 8 th Additional Chief Judicial Magistrate who took cognizance thereof on 22.12.2023 and directed that the complaint be posted for verification – After cognizance had been taken on a private complaint, the statements of the complainant and his witnesses ought to be recorded by taking recourse to the mandatory procedure prescribed u/ss.200 and 202 – However, in sheer disregard to the aforesaid order dated 22.12.2023, the respondent No.7 dismissed the complaint filed by the petitioner which order was rightly reversed by the High Court in the revision petition filed by the petitioner. [Para 54] |
