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 …..PETITIONER(S)
VERSUS
KAMAL DAYANI & ORS. …RESPONDENT(S)/
ALLEGED CONTEMNOR(S)
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
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
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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.
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 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
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consonance with the unambiguous position of law.
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
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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
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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
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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.
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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
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.
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