1. INTRODUCTION
In the case of Tusharbhai Rajnikantbhai Shah v. Kamal Dayani & Ors. [SLP (Crl.) 14489/2023 decided on August 07, 2024], the Hon'ble Supreme Court of India (the “Hon'ble Supreme Court”) has held that the practice adopted by the State of Gujarat wherein an accused person could be remanded to police custody despite an order granting anticipatory bail in his favour, is illegal. The Hon'ble Supreme Court analysed the law relating to the grant of anticipatory bail in great detail and concluded that once an accused has been admitted to such bail, it would be impermissible for the investigating officer to seek his police custody through the concerned Ld. Magistrate's Court, in the absence of permission from the court which had granted bail to the accused.
This article analyses this decision of the Hon'ble Supreme Court and seeks to understand its implications upon the interplay between the protection of anticipatory bail granted by the Court of Sessions, or higher, and the Magistrate's power to remand an accused to police custody thereafter.
2. DECODING THE DECISION
In Tusharbhai Rajnikantbhai Shah (supra), the petitioner was under an ad-interim protection of anticipatory bail granted by the Hon'ble Supreme Court. During the subsistence of such protection from the Hon'ble Supreme Court, he was remanded to police custody, based on the request made by the investigating officer. The request was so made before the Ld. Magistrate, claiming that the petitioner was uncooperative with the investigation in terms of the conditions stipulated in the ad-interim protective order. The Ld. Magistrate allowed the application seeking remand and held that the petitioner ought to be remanded to police custody due to non-adherence to the terms of the ad-interim protective order of the Hon'ble Supreme Court.
Upon these facts and issues being brought to the notice of the Hon'ble Supreme Court, it was held in unequivocal terms that once an order granting anticipatory bail has been passed by a court, it would frustrate the very intent and purpose behind its protection if the investigating officer is given a blanket liberty to keep the accused in custody. The Hon'ble Supreme Court further held the concerned investigating officer and the Ld. Magistrate guilty of contempt of court.
3. ANALYZING THROUGH THE LENS OF THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023
Cut to the Bharatiya Nagarik Suraksha Sanhita, 2023 (the “BNSS”) as has come into force since July 01, 2024. There has been a lot of debate about the enhancement of the time period within which police custody can be sought by the police after the arrest of a person. Under the Code of Criminal Procedure, 1973 , the police could only seek police custody of an arrested person for a maximum duration of 15 (fifteen) days, and that too within the first 15 (fifteen) days of such arrest.1 However, under the BNSS, though the total period of police custody remains limited to 15 (fifteen) days, the time period within which such custody can be sought by the police has been increased to the first 40 (forty) or 60 (sixty) days,2 [for offences with a maximum period of detention before the filing of a charge-sheet being 60 (sixty) days or 90 (ninety) days].
The significance of this change cannot be understated since till the exhaustion of the 15 (fifteen) day limit of the possible police custody, it would be a herculean task for an accused to seek bail since there will likely be an argument that the accused may be needed for police custody in order to carry out an effective investigation. However, the said outcome may not have been the intent of the legislature since the laws have been labelled as being justice-oriented. Presumably for this reason, the legislature has also added a proviso to the clause which regulates the power of the courts to grant bail,3 which reads as:
“Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation or for police custody beyond the first fifteen days shall not be sufficient ground for refusing to grant bail…”
(emphasis supplied)
4. CONCLUSION
And so, it begs to question, what happens under the BNSS when an accused person who has been granted anticipatory bail or bail after the first 15 (fifteen) days of arrest, is thereafter needed for police custody? Can an accused who has been granted bail be remanded once again to the custody of the police without formally seeking cancellation of such bail from the court which had granted it? If so, would this not amount to cancellation of the bail already granted? Anticipatory bail can only be granted by a Court of Sessions or the High Court; thus, would a Magistrate entertaining a remand application be empowered to grant police custody in the teeth of the order of a superior court? The effect of the proviso will have to be judged on the anvil of experience.
Footnotes
1 See Sec. 167, Code of Criminal Procedure, 1973.
2 See Sec. 187, Bharatiya Nagarik Suraksha Sanhita, 2023.
3 See Sec. 480, Bharatiya Nagarik Suraksha Sanhita, 2023.
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