Gujarat, Anticipatory Bail, and Police Custody: A Peculiar Practice

Almost a year ago now, on 07.08.2024 the Supreme Court delivered its judgment in a contempt petition titled Tusharbhai Shah v. Kamal Dayani [2024 INSC 588 ("Tusharbhai")]. The only reason to cover the judgment is because it offered a window into a highly peculiar practice, and in turn offered a timely lesson about the sheer degree of variety in how criminal law works across India. A lesson which, sadly, falls on deaf ears more often than not.  

After giving a brief about why Tusharbhai Rajnikantbhai Shah went to the Supreme Court, the post takes a brief detour to give a quick explainer about how anticipatory bail works in India, since that is the heart of the case. I then go into the peculiar practice of enforcing anticipatory bail in Gujarat which the Supreme Court was confronted by in Tusharbhai — a practice which the Court has declared was contrary to law. I did not find any other jurisdiction as having imported this condition of permitting remand while dealing with anticipatory bail. It would be interesting to examine whether having this condition made courts in Gujarat more hesitant in granting anticipatory bail or made them more liberal.  

The Facts in Tusharbhai 

A commercial dispute about the sale of property led to registration of a criminal case against Tusharbhai Rajnikantbhai Shah. He sought anticipatory bail fearing his arrest but his plea was rejected by both the Sessions Court and the High Court of Gujarat. This led to his first petition before the Supreme Court, and he finally got some reprieve as the Court gave him interim protection of being released on anticipatory bail if arrested till his petition was finally decided, so long as he cooperated with the investigation.

Shah went to the police to offer his cooperation. He was formally arrested and released on bail in line with the Supreme Court's orders, and directed to come again. On his second visit to the police station, he was given a notice to appear before the concerned local court on 13.12.2023 "for the matter of remand". On this day, police filed an application before the court asking to take Tusharbhai Shah into police custody for seven days. The magistrate was seemingly shown the Supreme Court's order granting Shah his temporary reprieve. It would seem that the magistrate did not think this reprieve came in the way of granting custody of Shah to the police, and directed him to be sent to police custody for three days. Shah was confined in police custody and, according to him, was tortured. When the three days ended, he was brought before the court, and now was granted regular bail by the court. Shah filed a detailed complaint later on about the ill-treatment he faced in custody which the court did not entertain.

All this took place in the shadow of the Supreme Court petition that Shah filed, which was still pending. With good reason, he perceived the acts of the police and the judge to be in contempt of the Supreme Court's orders. Shah now filed his second petition before the Supreme Court, for contempt. What interests me here is not the allegations about police torture and how that was first handled by the trial court and later the Supreme Court in the contempt, but the police having asked for his custody in spite of granting him anticipatory bail and the magistrate not only being fine with the request but granting it. To understand  these aspects, we need to deal a little bit with anticipatory bail. Readers familiar with the concept can skip the next part.

The Mechanics of Anticipatory Bail 

The blog has covered anticipatory bail on many an occasion and a brief recap would do. Normally, 'bail' as a concept refers to being released from actual custody. 'Anticipatory Bail' by contrast refers to a remedy in which a person can apply for bail in anticipation of being arrested and taken into custody. A person must demonstrate a reasonable apprehension of arrest in a case where she does not have a right to bail (termed a 'non-bailable' offence), and show that permitting the arrest and custody will be unjust. If a court agrees, it can pass a directive to police that, in the event of arresting the person, he must be released on bail. 

Any bail, whether regular bail which is sought after arrest, or a direction for anticipatory bail sought prior to arrest, means a release from custody that continues till a court permits the re-taking of a person into the custody of law by cancelling bail (or a superior court finding that the bail order was perverse). Normally, bail is granted on the promise of fulfilling various conditions, the most important of which is continued participation with the legal process. If an accused fails to do so, or meet any other condition, then bail can be cancelled. But without this cancellation, you can't send the accused into custody even while you are on bail. These concepts do not overlap.       

Explaining the Gujarat Model of Anticipatory Bail 

Well, it would seem they did overlap in Gujarat, which is why the police had no qualms in seeking police custody of Tusharbhai Shah, and the magistrate no qualms in granting it, even though he had been granted bail and no cancellation of his bail was sought. In the hearing before the Supreme Court, lawyers for many of the contemnors confirmed this: In Gujarat, they said, it was a "long prevailing practice" for courts to grant anticipatory bail with an express stipulation that at any point of time the police can make a request for custody of an accused where felt necessary for an investigation. They cited a 2014 decision of that High Court in support of their claim. In this case as well, police claimed non-cooperation by Tusharbhai Shah, and the magistrate upon reviewing the record agreed and decided it was a fit case for custody.

The explanation did not cut it for the Supreme Court as a justification for the conduct of the police officer and the magistrate in question in the facts and circumstances of this case because the Supreme Court's order never had any such stipulation permitting custody in the first place. It also specifically held that this "long prevailing practice" of Gujarat was contrary to law and condemned it. But in doing so, the Court did not go into the practice much, which is precisely what piqued my curiosity when I read about it.

Was this claim of a long standing practice true? Absolutely. And it has a fascinating history that goes much further back than 2014. The practice appears to have been birthed in the first few years of anticipatory bail. At this juncture court were, to put it mildly, extremely reticent about this concept and worried deeply about its negative impact on a successful police probe. The broad ambit of the provision invited courts to invent guidelines to prevent misuse, and one saw different High Courts come up with ideas for controlling arbitrary judicial discretion. The Gujarat High Court made such an attempt in Somabhai Patel (1976) where the Court laid down 12 guidelines for courts to exercise anticipatory bail. One of these guidelines was that:

The power cannot be allowed to be invoked in order to defeat, thwart, stall, or render impotent, the provisions relating to remand to police custody for the purposes of facilitating investigation. It may, therefore, be specified in the order that the accused is to be released on anticipatory bail provided he is not required to be remanded to police custody and that if he is so required the police officer would be at liberty to obtain suitable orders from the Court in that behalf either before the arrest or within a reasonable time of the arrest. [Emphasis supplied]

Now, a trend of High Courts placing restrictive covenants upon exercise of judicial discretion for grant of anticipatory bail was stopped in its tracks by the Supreme Court in Gurbaksh Sibbia (1980). But as I have argued earlier, the inherent tension between liberal grant of anticipatory bail and its negative impact on the police investigation was never quite resolved. So it would seem that at least this guideline of Somabhai Patel continued to be followed. I came across one such order in Pankaj D. Suthar v. State (1991) where the High Court granted anticipatory bail in an atrocities act case on a condition that the accused report to the police to cooperate with the probe and "thereafter also for the purposes of being taken on remand in the event of necessities so felt by the Investigating Officer, which the learned magistrate shall decided the same on merits without being influenced by the fact that the petitioner is ordered to be released on an anticipatory bail by this Court on usual terms and conditions." (Interesting aside: Justice J.B. Pardiwala appears to have been the counsel appearing for the petitioner).

In the 2000s, this condition was fully part of the system, so much so that you can find lawyer's suggesting it as a means to convince a court to grant anticipatory bail in an otherwise unfavourable case. For instance, the counsel for the petitioner in Yazdi Icchaporia (2003) the lawyer suggested that stringent conditions may be imposed while granting bail including "specific condition giving liberty to the prosecution to move remand application in the event of grant of anticipatory bail" (the petition failed regardless). The same submission, with the same result, was made in Jitendra Rajgor (2004). An example of just how entrenched a view it was that custodial remand was permissible for persons on anticipatory bail can be seen in Pragnesh H. Parikh (2007) where when the magistrate denied a remand request for an accused who was on anticipatory bail, the sessions judge set aside this observation in a revision petition stating there was no such bar on seeking custody. Where anticipatory bail was being granted, especially in financial crimes, the bail order would carry a standard stipulation at the end — "it would be open to the investigating officer to file an application for remand if he considers it proper and just"

The first ripples in this otherwise placid pond of the Gujarat Model of anticipatory bail were seen after the Supreme Court's decision in Mhetre (2010). This judgment emphasised that there was no difference in the effect of an order for bail and anticipatory bail, and also deprecated a practice of passing anticipatory bail orders of a limited duration of time. As one can see, treating anticipatory bail and bail as different was the crux of how Gujarat was enforcing anticipatory bail. This was the logical justification for conditions where the life of anticipatory bail orders was restricted, and the remand condition imposed. 

A petitioner naturally challenged such conditions soon thereafter, and in Jashuben (2011) the Court had to decide the issue. It held that a limited time period for an anticipatory bail was clearly contrary to how the Supreme Court had explained the law, and the condition could not continue. But for the other condition about remand, the Court upheld the condition and gave insight into why the approach had come to be so popular:

Uptil now, under the order of anticipatory bail, an accused would be, immediately, upon his arrest, released on bail. For the purpose of seeking remand, during such a period, he would be treated as if in custody, but, under the protective umbrella of the Court, under an order of anticipatory bail. Right of the prosecution to seek remand of an accused, who has been granted anticipatory bail, deletion of the said condition, without any substitution would create serious complication. In a given case, when the prosecution is desirous of seeking police remand, question would arise whether the anticipatory bail order should be granted and if it is required to be granted on merits, what would be the position of the remand application, which the prosecution may file, later on. Obviously, if an order of anticipatory bail is granted, the accused immediately upon his arrest shall have to be released on bail. As long as he remains on bail, the prosecution cannot seek his remand. The prosecution, therefore, shall have to seek cancellation of the bail, before it can apply for remand. This situation would create two complications. Firstly, parameters for cancellation of bail are entirely different from those, for granting or refusing bail. Secondly, any such application by the police seeking cancellation of bail, may consume considerable time during which period the evidence may be destroyed or lost. [Emphasis supplied]

The High Court lays bare for us the tension between too wide an ambit for anticipatory bail and successful police investigations, which continue to remain hinged upon securing custodial interrogations as the ideal form of cooperation. Legitimising a cumbersome process — of seeking cancellation — before police can go seek remand would tilt the system too far in favour of the accused. Permitting police to seek remand struck a balance because it effectively required a judge to decide the question, safeguarding liberty against the threat of immediate arrest. 

Another challenge to this long prevailing practice came in 2014. This time, the Single Judge referred the issue to a Division Bench, as he did not agree with the conclusions in Jashuben. It would appear that this Division Bench did not explicitly overrule the practice either, which continued to flourish till 2024.

Conclusion: A Complicated Set of Lessons from History

The Supreme Court has now declared a practice of permitting police remands for persons who are granted anticipatory bail as being contrary to law. From past experience, it is fair to expect some time before this decades-long practice is finally uprooted, and the message from on high to trickle down to the remotest districts in Gujarat. 

In declaring the practice as contrary to law, the Supreme Court emphasised the idea of personal liberty and held that allowing the police to seek remands in this fashion rendered anticipatory bail nugatory. But as we saw with a deeper scrutiny of the Gujarat approach, the condition imposed was not to render anticipatory bail nugatory but strike a balance between liberty and effective investigations, which remains the heart of anticipatory bail jurisprudence since the topic entered the lexicon. If anything, we saw that lawyers were actively batting in favour of this condition as a means to get anticipatory bail in otherwise difficult cases. 

One wonders whether the outright removal of this condition will make courts in Gujarat more reticent in giving anticipatory bail in those cases where, previously, this condition may have convinced them that the grant of relief will not hamper an effective investigation. I suspect that it may well prove to make courts a bit more hesitant, initially at least, and end up with a situation where the Supreme Court's avowedly pro liberty intervention ends up actively having a negative impact for personal libery. The entire episode is a reminder that the lessons from history are not as simple as we might think.

Justice in Courts of Inquisition? The Delhi High Court on UAPA Remand Extensions

A person should not be condemned without knowing why. One would think that this precept is not a point of debate in the legal system of a constitutional, democratic, republic. After all what personifies the shift from a culture of impunity and subservience to one of justification than the ability of individual citizens to ask questions and demand answers from those in power. This does not stop at the ballot box, but pervades deep into the fabric of how things are done, and ought to be the unshakeable cornerstone of how criminal law with its censure and punitive sanctions is administered. 

Yet, time and again, we are politely reminded to not take anything for granted. Slotting in nicely within this bucket is the recent decision of the Delhi High Court in a batch of appeals concerning the application and interpretation of Section 43D(2)(b) of the Unlawful Activities Prevention Act 1967 [UAPA] [Zeeshan Qamar v. State of NCT Delhi, Crl. Appeal No. 405 / 2021 and other connected petitions, decided on 24.02.2023 ("Zeeshan Qamar")]. 

Time Limits on Investigations and their Consequences

What was the issue? Let's read the provision:

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2), -- 

(a) the reference to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:--

"provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days."

[Emphasis mine] 

In a previous post on the blog, we discussed Section 167 of the Criminal Procedure Code 1973 [Cr.P.C.] and its time limits for investigation. The logic behind having these limits was an implicit recognition by Parliament that custodial detention was an integral part of investigations and the status quo allowed for persons to be detained for prolonged periods during an investigation, and bail in non-bailable cases was not easy to get. The time limits were supposed to act as a means to speed up investigations, by sending a message that failure to complete investigations on time would entitle a person to release. The move came with a clear-eyed recognition that giving these time limits may send the wrong signal and suggest that the law treated pre-trial detention of up to sixty (and later also ninety days) as acceptable, and a hope that the police and courts would not get the wrong idea.   

Section 167 was possibly one of the most radical interventions made in the administration of criminal law yet. It was only natural for it to have its detractors. In 1975, the Supreme Court in Natabar Parida [AIR 1975 SC 1465] made its displeasure apparent when it observed that such a law "may be a 'paradise for criminals', but surely it would not be so, as sometimes it is supposed to be, because of the courts. I would be so under the command of the Legislature." Hardly a year later the Gujarat state government had taken steps to increase the time limits, and a few years after that we had Parliament itself amend Section 167 to provide for the ninety day limit for certain crimes. It was no longer obvious as to whether the idea of sixty / ninety days being an acceptable pre-trial detention was a wrong one or not.

The introduction of Section 167 Cr.P.C. and its swift amendment suggests the sense of unease within the state machinery which naturally accompanied such a radical departure from the norm. It was unsurprising for further, and significant departures to be made to Section 167 when Parliament sought to confront armed separatist movements in the 1980s, and suggest to the world that it took its international obligations on enforcing drug laws seriously. Detention up to a year became permissible if it could be shown that the investigation could not be concluded within the time period, and unsurprisingly, it also became the norm as these special laws made getting bail even harder than what was possible in ordinary circumstances. 

The issues and conclusions in Zeeshan Qamar

In this context is how we must view introduction of safeguards for how this extension of the permissible maximum period of pre-trial detention could occur. The law introduced a requirement for a report to be filed by the public prosecutor indicating the progress of the investigation and giving clear reasons why the further custodial detention of an accused was required. 

What was in issue before the Court in Zeeshan Qamar — and not for the first time as such — was whether this report by the public prosecutor ought to be shared with the accused at the time when a court is hearing the request for extending the period of maximum permissible pre-trial detention under Section 43D(2)(b) of the UAPA. The batch of appeals were all filed at separate points of time challenging the extension, and in most of them the accused were denied a copy of the prosecutor's report. This led to them being clubbed together for hearing, and the High Court framing and deciding issues on the process of Section 43D(2)(b) extensions besides deciding on the validity of the extensions in these specific appeals. 

These issues which the High Court framed were as follows (Para 4):

• Whether the prosecutor's report should be shared with the accused at the time of extension of time for a further period beyond 90 days?
• Whether the court "should satisfy three requirements" at the time of extension of remand i.e. (i) what is the progress of investigation, (ii) whether further investigation is required, and (iii) whether continued detention is required for this further investigation?
• Whether the court can extend remand for ninety days in one go, or should it be in a truncated manner to oversee the progress of investigation.

The conclusions that it returned (in serial order) were as follows (Para 13):

• The report is not required to be provided at the stage of extending remand, but the accused should be "informed" about the same to ensure she is not a "silent spectator" and the court must consider the submissions on behalf of the accused. 
• The "essential requirements" to be considered are: (i) reasons for the prosecutor's satisfaction about progress of investigation, (ii) reasons why 90 days are not enough, and (iii) details of what further investigation is required for which further time is sought. These three considerations must be part of the prosecutor's report.
• The court must consider the report carefully and can grant 90 days in one stretch, and if it does not then the agency can re-agitate its demand for the remaining period if need be. 

I will turn to the first conclusion, which is the focus of this post, in the next section. But before that, a word on the other two answers offered. The discussion on issue (ii) suggests that the court did find that the prosecutor's report must also indicate why continued detention is necessary, although the conclusion itself is somehow silent about that aspect. What is perhaps unsurprising is that the High Court offers a rather low threshold of just what must be shown to satisfy a court that the completing the investigation was not possible. On issue (iii), the High Court in its discussion encourages courts to carefully peruse the facts and determine just how long an extension is necessary and not grant blanket extensions for a further 90 day period. This is not captured fully in the conclusion, which merely focuses on it being legally permissible for a court to indeed grant 90 days in one stretch if it feels this is necessary. 

The 'Silent Spectator' Paradox

Which now brings us to the first issue, on sharing a copy of the report. To its credit, the High Court did not try and avoid a discussion but gave its own independent reasoning for why the report ought not to be shared (Paras 6.11 to 6.14). 

This logic is straightforward — the report must necessarily have details about the investigation which if shared with the accused could prejudice the ongoing probe and, in any event, this material would be inextricably linked to material in case diaries that the accused has no right to see in the first place. The main plank for the court's reasoning, therefore, was that an accused "has no right to know the progress in an investigation." 

With due respect, this is deeply flawed at multiple levels. At the most fundamental level, if we assume that India is a constitutional republic recognising and guaranteeing the right to personal liberty (arguably an acceptable assumption) then while a person may not have any independent right to know the progress of an investigation, she certainly has a right to know about it if this investigation is the basis for keeping her in pre-trial custody when she is presumed to be innocent. 

It would be different if my custody was independent of the merits of an investigation. But the very nature of Section 43D(2)(b), UAPA makes it clear that it is only because of the merits that my further custody is being sought. Pre-trial detention is the most obvious and glaring deprivation of personal liberty, and my right to contest it is meaningless if I do not know on what grounds am I being kept behind bars. Being able to question deprivations of liberty and demand justifications cannot be de-linked from being a constitutional republic. Its non-negotiable.  

It is equally flawed at one level removed from this most basic argument. Accused persons are regularly given some kind of update as to the investigation every time police oppose bail applications by way of filing a response during the pendency of the investigation. Similarly, the accused is also given update on the investigation when police seek custodial remands (and not judicial custody). It is nobody's case that the contents of these replies and applications are not derived from case diaries, but this linkage only means that it is incumbent upon the agency to walk that tightrope between securing its sources and giving enough of a clear answer to the accused whose fundamental rights are being deprived with each day in custody. 

If we accept the logic in Zeeshan Qamar, then the nature of remand and bail hearings (where bail is filed during investigation) stands irrevocably and disastrously transformed by taking out the most affected party — the accused in custody — from the equation by which we expect the court to make a fair decision on whether or not custodial detention should be extended further. Remand becomes a fiefdom of the State — one arm (executive) talks to the other (judiciary) to decide what's best and the citizen should sit back and accept her fate as a collateral consequence. 

One senses that the High Court recognised this was a problem when it agreed that an accused cannot become a 'silent spectator' to the process by which her liberty is being decided. But the court answers this problem by tying itself in knots rather than offering any meaningful safeguard, for the only real safeguard had already been denied.  

Facing the Facts

We can view Zeeshan Qamar as an aberration and continue preaching the gospel of India's transformative constitution and its dharma of fairness. Or we can face the facts, that criminal justice was and continues to be deeply entrenched in a feudal mindset where the perceived brightness of the constitution is yet to shine all too brightly. An accused has a qualified right to get a copy of the first information report, does not have the right to a lawyer during questioning, does not have the right to a lawyer even during custody for some kinds of cases (PMLA), and now does not have the right to know the basis upon which the state wants to extend the permissible period for his custodial detention. 

Transformative indeed. 

Remands to Custody and Bail

A long, long time ago, this blog ran a series on issues surrounding the grant of bail for non-bailable offences. The primary issue focused upon, was how several statutes placed the burden upon the accused to show that there were no reasonable grounds to believe that the alleged offences had been committed by her. In the last of those posts (available here), I covered a section on how the law placed this burden upon on the accused, without providing her any right to access documents prior to filing of the charge-sheet.  Section 207 Cr.P.C., concerning supply of copies for certain documents, only applies after the charge-sheet has been filed. Before that (and this is when bail applications are most commonly filed), no statutory right to copies of documents and statements exists. A brief insight into the case law was provided in that post, which showed courts occasionally had decided to supply a copy out of concerns for fair trials.

Recently, I was part of arguments before a trial court in Delhi where the investigating agency sought remand to police custody. Remand to custody, it may be recalled, stems from Section 167 Cr.P.C. When the police fail to complete investigation within 24 hours, this provision enables the police to make a request to the Magistrate, for detaining the accused person for a further duration in custody. This custody can be of two kinds, police custody or judicial custody. As it normally happens with the Cr.P.C., Section 167 does not explicitly state that an Application has to be filed. It does explicitly demand that Case Diaries (See Section 172, Cr.P.C.) are to be forwarded when the accused is produced. Normally though, for a judge to pass orders an application would be necessary, and so applications are always filed for seeking remand. These are, commonly, cyclostyled applications that merely recount the facts of the case with one or two paragraphs containing the reasons for seeking further custody of the accused. These, again, are usually (i) fear of the accused fleeing the course of justice, (ii) fear of tampering with evidence, and (iii) apprehension of coercing witnesses.  

In our case, when the remand application was filed, copies were specifically denied to the accused persons. The prosecution argued that there was no provision under the Cr.P.C. allowing for such copies to be filed. As I was given to understand, this stand is routinely adopted by prosecutors across courts. Remember, an Application seeking remand is different from the Case Diaries, for which access-restrictions are specifically crafted within the Code. While it could be argued that the Code does not specifically enable the accused to obtain copies of documents and statements before the charge-sheet is filed (an argument which in my opinion is contrary to all sense of fairness), can the same logic be extended to a mere remand application?  

I think it cannot, and in light of the possible merit the other argument has - that no materials can be supplied - it serves all the more reason to ensure a copy of the remand application is supplied to the accused. To make an argument through analogy let us look at preventive detention. While preventive detention laws come with deprivations of standard procedural rights (such as a right to counsel), even persons detained under these laws are constitutionally required to be supplied with the grounds seeking detention! Without having any knowledge of the reasons why the state seeks my custody, what is the point of the accused even contesting the point of custody in that event?

Most judges have a fine sense of balance and often inform the counsel for an accused the basis for the remand application. It is not as if the nitty-gritty of an investigation is being laid bare in the investigation. That remains the domain of a Case Diary which is rightly shielded from prying eyes. Moreover, there is no prohibition on the counsel for an accused inspecting the court record or applying for a certified copy of these records, which are public documents in the eyes of law. If this is the case, then why stick with the charade of non-cooperation? Such a position only worsens the imbalance in resources that the State has at its disposal as against those an accused person can summon. The Delhi High Court rules have a fine chapter on police and custody remands which could sorely do with an amendment addressing this anomalous situation.