SC raps judge, cop for ignoring bail order

Accusing a Gujarat judge of "bias" and acting in a "high-handed manner" while granting police custody, the Supreme Court on Wednesday held her and a police officer guilty of its contempt for sending an accused for custodial interrogation in a case disregarding the fact that he was granted pre-arrest bail by none other than the top court.

In an unprecedented verdict, the top court said the criminal jurisprudence required courts to apply judicial mind to the facts of a case before granting police custody if it was "genuinely required".

"The courts are not expected to act as messengers of the investigating agencies and the remand applications should not be allowed in a routine manner," it said.

A bench comprising justices B R Gavai and Sandeep Mehta, which had granted anticipatory bail to one Tusharbhai Rajnikant bhai Shah on December 8, 2023, was aghast that despite its order being in the operation, a judicial officer took note of a plea of the investigating officer and remanded him to police custody for interrogation.

"The action of the contemnor respondent No.7 (Deepaben Sanjaykumar Thakar, 6th Additional Chief Judicial Magistrate, Surat, 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...and tantamount to contempt.

"The contemnor-respondent's (judge) 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," the bench held.

The conduct of the judicial officer gave a strong indication of her biased approach in the matter, it said.

The verdict said the power to grant anticipatory bail is not to be exercised in a routine manner and courts are expected to use this provision with a "great degree of circumspection".

"But, 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 IO to seek police custody of the accused, would virtually negate and frustrate the very purpose behind the order of anticipatory bail," it said.

It also nullified the prevalent practice in Gujarat where courts, while dealing with anticipatory bails, "routinely impose restrictive conditions" and said it was a "direct contravention" of the apex court judgement.

Dealing in detail the role of Police Inspector RY Raval of Vesu Police Station at Surat, it said that his plea for police custody of the accused during currency of the interim protection granted to the accused was "in sheer defiance of this court's order" and "tantamount to contempt on the face of the record".

The bench held them guilty of having committed contempt of its order of December 8, last year.

Writing a 73-page judgement, Justice Gavai said the top court order would leave no room for doubt that the interim protection of anticipatory bail was "absolute, until modified or altered upon" by it while deciding the petition which was still pending.

"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," the verdict said.

Refusing to accept the unconditional apology of the judge, it said she had proceeded to deal with the case in a "predetermined manner".

The bench, however, absolved Surat Police commissioner of contempt charges saying that his role was limited to the aspect of non- functioning of the CCTV cameras installed at the police station to ascertain the claim of the accused of custodial torture.

The bench trashed the plea that the accused was not cooperating in the probe and said "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 IO 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," it said.

Apparently, the IO made blatant misinterpretations and procured the police custody of the accused, it said.

It said if at all, the IO felt genuine requirement to seek police custody, then the proper course would have been to move the top court itself.

Moving the remand application to the local court was "tainted, malicious and a contemptuous act", it said.

The bench also dealt with the defence of the judicial officer and said if the police custody was granted in a bona fide manner due to some misconception, then, she should have released the accused immediately at the end of police custody.

"The SLP of the petitioner (accused) 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 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," it said.