Trail of Errors: Surat police and magistrate’s contempt of Supreme Court order explained

What is anticipatory bail, and what does it signify in the criminal legal process? How did the arrest lead to contempt of the Supreme Court’s order?

A recent Supreme Court (SC) decision sheds light on contempt of court orders and violation of safeguards at the stages of arrest and remand, both at the hands of the police and the remand-granting Magistrate.

An anticipatory bail protects a person fearing arrest for a non-bailable offence against arrest when the court is convinced the arrest is not necessary or justified (Getty Images/iStockphoto)

The petitioner approached the Supreme Court with a contempt petition, highlighting the state's excessive actions and failure to comply with an anticipatory bail previously granted by the Court. The petition underscores the mechanical nature of the arrest and remand process, suggesting that these actions were motivated by extraneous factors rather than genuine legal necessity.

An anticipatory bail protects a person fearing arrest for a non-bailable offence against arrest when the court is convinced the arrest is not necessary or justified. Therefore, the person will be released upon fulfilling the conditions once anticipatory bail is granted. The court considers the severity of the accusation, the applicant's history, the risk of fleeing, and the potential malicious intent behind the accusation while deciding an anticipatory bail application.

The petitioner, Tusharbhai Rajnijantbhai Shah, was accused of receiving Rs. 1.65 crores in cash for selling 15 shops without handing over possession. Upon registering an FIR in July 2023, Shah approached the Sessions Court for anticipatory bail. However, his plea was rejected, prompting him to appeal to the High Court, where he faced a similar fate.

Shah then moved to the Supreme Court, which, in December 2023, granted him anticipatory bail. The court's order noted that in the event of Shah's arrest, he was to be released on bail upon furnishing a personal bond of Rs. 20,000 with one or more sureties in a similar amount. After that, Shah was arrested but, as outlined in the order, was released on producing the surety. However, subsequently, Shah was served with a notice under S.41A of CrPC meant to summon the accused for questioning. When Shah appeared before the magistrate in compliance with the S.41A notice, the police sought seven days of custody, a request that the Magistrate inexplicably granted despite complete cognisance of the existing protection via anticipatory bail.

The subsequent events raise several serious concerns: first, the accused was placed in police custody despite having been granted anticipatory bail by the Supreme Court; second, they were compelled to file a Section 437 application for bail after the remand period expired; and third, their allegations of torture and violence in custody were dismissed, exposing significant flaws within the justice system.

Granting police custody despite SC-granted anticipatory bail

This decision directly contradicted the SC’s interim protection order to prevent such an arrest by granting anticipatory bail. However, the Magistrate justified the order by arguing that while the SC's bail order prevented arrest, it did not explicitly bar the remand of the accused — a defence rooted in a narrow and arguably flawed interpretation of the Court's directive. Moreover, this reasoning misses a crucial point — anticipatory bail is made when arrest is considered unnecessary and potentially abusive, and thus, its primary objective is to protect the accused from police custody.

The SC took a decisive view of the contempt committed by the Surat Police and the Magistrate. It noted, “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 messengers of the investigating agencies, and the remand applications should not be allowed in a routine manner.”

Additional bail requirements despite anticipatory bail

Another irregularity noted in the case was that at the end of the three-day police custody, the petitioner filed a bail application under Section 437 of the CrPC and was released on an additional set of bail bonds despite an existing anticipatory bail order. The petitioner contended that the presiding magistrate coerced him into filing a regular bail application, while the magistrate asserted that the petitioner did so voluntarily. The Court criticised this process, emphasising that since the petitioner had already executed sureties for release in accordance with the anticipatory bail order, requiring a fresh set of bail bonds was improper.

The Court pointed out that a formal bail application was not only entertained but also compelled the accused to pay additional bail bonds for release. It further observed that the nearly 48-hour detention of the accused following the conclusion of the remand period was illegal, as there was no order authorising such custody.

How not to deal with a custodial violence complaint

After enduring three days in police custody, followed by two days of illegal detention, the petitioner brought forth allegations of custodial torture before the Magistrate. However, in violation of legal protocols, the Magistrate dismissed the complaint after a cursory personal examination of the petitioner’s feet, concluding there were no visible injuries. The complaint was dismissed without recording statements, as Section 200 and 202 CrPC required.

The petitioner raised two preliminary concerns: First, on a complaint of custodial violence, the Magistrate did not order a medical examination as per S. 54 CrPC but merely examined the accused person’s feet. Second, the complaint was dismissed without recording statements of witnesses under Sections 200 and 202 CrPC.

The court highlighted that a medical examination under Section 54 CrPC is essential for protecting the rights of an accused against custodial violence, noting, “it was incumbent upon the concerned Magistrate to have got the accused subjected to medical examination as per the mandate of Section 54 CrPC.”

Moreover, when a complaint is presented under Sections 200 and 202 CrPC, the Magistrate must record the complainant's and witnesses' statements under oath unless the complaint is from a public servant or court or if the case is transferred to another Magistrate. If the case involves a serious offence triable only by a higher court, the Magistrate must ensure all witnesses are examined on oath.

The court also criticised the Magistrate’s failure to record statements as mandated, stating: “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.”

Conclusion

This case highlights either a severe lack of understanding of arrest and remand safeguards leading to violations by both the police and the Magistrate— the initial points of contact for individuals entering the criminal justice system—or a deliberate breach of procedural protections driven by malice or extraneous factors.

Such failings undermine the integrity of legal proceedings and erode public trust in the justice system. The right against unnecessary arrests and custodial violence should not be treated as a mere formality; it must be protected through robust accountability measures.

Shrutika Pandey is a lawyer and researcher specialising in access to justice. She engages in developing strategies to advance the rights of undertrial prisoners through legal representation, research, and advocacy. The views expressed are personal.