# Tusharbhai Rajnikantbhai Shah v. Kamal Dayani & Ors

- **Citation:** 2024 INSC 588
- **Court:** Supreme Court of India
- **Decided:** 2024-08-07
- **Bench:** B.R. Gavai, Sandeep Mehta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tusharbhai-rajnikantbhai-shah-v-kamal-dayani-ors-38084
- **Pages:** 52

## Headnote

Accused-petitioner was granted absolute interim protection of
anticipatory bail by Supreme Court, until modified or altered upon
final disposal of the present SLP which was pending consideration
before this Court. However, in gross violation of the said order, the
petitioner was remanded to police custody during the currency of
the aforesaid interim order. Present contempt petition filed by the
petitioner against the respondents-police officials and the ACJM.
Respondents, if committed contempt of this Court's order.
Headnotes†
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
236
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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 anticip

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[2024] 8 S.C.R. 235 : 2024 INSC 588
Tusharbhai Rajnikantbhai Shah
v.
Kamal Dayani & Ors.
Contempt Petition (C) D. No. 1106 of 2024
In
(Special Leave Petition (Crl.) No. 14489 of 2023)
07 August 2024
[B.R. Gavai and Sandeep Mehta, JJ.]
Issue for Consideration
Accused-petitioner was granted absolute interim protection of
anticipatory bail by Supreme Court, until modified or altered upon
final disposal of the present SLP which was pending consideration
before this Court. However, in gross violation of the said order, the
petitioner was remanded to police custody during the currency of
the aforesaid interim order. Present contempt petition filed by the
petitioner against the respondents-police officials and the ACJM.
Respondents, if committed contempt of this Court's order.
Headnotes†
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
236
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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
[2024] 8 S.C.R.
237
Tusharbhai Rajnikantbhai Shah v. Kamal Dayani & Ors.
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]
238
[2024] 8 S.C.R.
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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 8th 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]
Case Law Cited
Sunilbhai Sudhirbhai Kothari v. State of Gujarat (2014) SCC
OnLine Guj 14451 - overruled.
Sushila Aggarwal v. State (NCT of Delhi) [2020] 2 SCR 1 : (2020)
5 SCC 1 - followed.
Siddhram Satlingappa Mhetre v. State of Maharashtra [2010]
15 SCR 201 : (2011) 1 SCC 694; Paramvir Singh Saini v. Baljit
Singh and Another [2020] 13 SCR 770 : (2021) 1 SCC 184;
Sanuj Bansal v. The State of Uttar Pradesh & Anr. (Petition for
Special Leave to Appeal (Crl.) No. 10536/2023); Rekha v. State
of T.N. [2011] 4 SCR 740 : (2011) 5 SCC 244; Ashok Kumar v.
Union Territory of Chandigarh (2024) SCC OnLine SC 274; P.
Chidambaram v. Directorate of Enforcement [2019] 14 SCR 450 :
(2019) 9 SCC 24 - referred to.
List of Acts
Contempt of Courts Act, 1971; Code of Criminal Procedure, 1973;
Bhartiya Nagarik Suraksha Sanhita, 2023; Constitution of India;
Income Tax Act, 1961; Prevention of Money Laundering Act, 2002.
[2024] 8 S.C.R.
239
Tusharbhai Rajnikantbhai Shah v. Kamal Dayani & Ors.
List of Keywords
Anticipatory bail; Pre-arrest bail; Absolute interim protection;
Interim order; SLP pending consideration; Remand application;
Police custody; Police custody remand; Police custody remanded;
During currency of the interim order; Contempt; Order under
contempt; Contempt of the Court; Contempt petition; Wilful
disobedience; Contempt of the Court's order; IO and ACJM/
Magistrate guilty of contempt; Remand application; Civil dispute
given criminal colour; Oral agreement for sale of property;
Non-functioning CCTV cameras; Defiance; Gross contempt;
Contemptuous; Contemnor; Contumacious actions; Custodial
violence; Illegal detention; Illegal custody; Custodial investigation;
Non-cooperation by the accused; Refusal to confess to the crime;
Torture in police custody; Alleged custodial violence subject matter
of departmental proceedings; Individual freedom; Right to liberty.
Case Arising From
INHERENT/CRIMINAL APPELLATE JURISDICTION: Contempt
Petition (Civil) Diary No. 1106 of 2024
In
Special Leave Petition (Criminal) No. 14489 of 2023
From the Judgment and Order dated 05.10.2023 of the High Court
of Gujarat at Ahmedabad in CRLMA No.15242 of 2023
With
Special Leave Petition (Crl.) No. 14489 of 2023 and Special Leave
Petition(CRL.) Nos. 537 and 1116 of 2024
Appearances for Parties
Iqbal Syed, Sr. Adv., Rajivkumar, Anurag Singh, J.K Mishra, Amaan
Syed, Mohammad Aslam, Aniq Kadri, Vishrut Bhandari, Dipesh Dalal,
Abid Ali Beerani, Advs. for the Petitioner.
S.V. Raju, Ms. Aishwarya Bhati, A.S.Gs., Ms. Archana Pathak Dave,
Nikhil Goel, D.N. Ray, R Basant, Sr. Advs., Ms. Swati Ghildiyal,
Prashant Bhagwati, Ms. Devyani Bhatt, Ms. Neha Singh, Ms. Devyanti
Bhatt, K. Parameshwar, Ms. Ruchi Kohli, Ms. Srishti Mishra, Kushagra
Pandey, Ms. Radha Gupta, Ashutosh Ghade, Shushil Shukla, Nimit
Bhimjiyani, Purvish Jitendra Malkan, Ms. Neha Bhidey, Ms. Dharita
Purvish Malkan, Ms. Deepa Gorasia, Alok Kumar, Kush Goel, Advs.
for the Respondents.
240
[2024] 8 S.C.R.
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Judgment / Order of the Supreme Court
Judgment
By the Court
Contempt Petition (Civil) No(s). ..........of 2024 (D.No. 1106 of
2024) in SLP(Crl.) No(s). 14489 of 2023
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 respondentscontemnors 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.
[2024] 8 S.C.R.
241
Tusharbhai Rajnikantbhai Shah v. Kamal Dayani & Ors.
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(contemnor-respondent 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-A-11210068230366/2023 Complainant Abhishek
Vinodkumar Goswami aged: 28 years, occupation:
Business Real Estate Residing at C/405, Surya Palace, Ct
242
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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('contemnorrespondent 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
[2024] 8 S.C.R.
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Tusharbhai Rajnikantbhai Shah v. Kamal Dayani & Ors.
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
244
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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
[2024] 8 S.C.R.
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Tusharbhai Rajnikantbhai Shah v. Kamal Dayani & Ors.
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 pre-planned 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 coaccused 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
246
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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
Surat
Deepaben Sanjaykumar Thakar
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-
[2024] 8 S.C.R.
247
Tusharbhai Rajnikantbhai Shah v. Kamal Dayani & Ors.
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., contemnorrespondent 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(contemnor-respondent No. 7) in the
order sheet dated 16th December, 2023. The 6th ACJM(contemnorrespondent No. 7) proceeded to record the statement of the petitioner
virtually as if he was being cross-examined. 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.
248
[2024] 8 S.C.R.
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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 ill-treated 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
[2024] 8 S.C.R.
249
Tusharbhai Rajnikantbhai Shah v. Kamal Dayani & Ors.
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
250
[2024] 8 S.C.R.
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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(contemnor-respondent No. 3), Police Inspector(contemnorrespondent 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
[2024] 8 S.C.R.
251
Tusharbhai Rajnikantbhai Shah v. Kamal Dayani & Ors.
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
252
[2024] 8 S.C.R.
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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
[2024] 8 S.C.R.
253
Tusharbhai Rajnikantbhai Shah v. Kamal Dayani & Ors.
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(contemnor-respondent
No.7) proceeded to deal with the complaint in a pre-determined
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 against the police and
with the feeling of seeking revenge. The order dated 6th January,
2024 passed by 6th ACJM(contemnor-respondent 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
254
[2024] 8 S.C.R.
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No. 273 of 2024. Relevant observations made by the High Court are
reproduced hereinbelow:-
"11.