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In Re: District Magistrate, Rajnandgaon, Contemner - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1975CriLJ1766
AppellantIn Re: District Magistrate, Rajnandgaon, Contemner
Cases ReferredJyotirmoy Bhattacharjee v. Chief Secretary
Excerpt:
.....privilege than a private litigant. we fail to understand the conduct of the contemner in sending a wireless message to this court, unless he wanted to convey a piece of advice to the court, asking it to recall its order dated 1-8-1975 for the production of the detenu. of course, an apology must be offered and that too clearly and at the earliest opportunity. we are quite alive to the position that it is indeed difficult and well-nigh impossible to frame a comprehensive and complete definition of 'contempt'.we would like to say that any act that curtails or impairs the freedom of the limits of the judicial proceeding must of necessity result in hampering the administration of law and in interfering with due course of justice. we would also like to refer to a passage in blackstone's..........court's order dated 1-8-1975 in a pending habeas corpus petition and as a consequence of a crash wireless message dated 6-8-1975 addressed by him to the registrar of this court in that connection.2. a detenu, vidhya bhushan thakur, has challenged the validity of his detention passed by the contemner under section 3(1)(a) of the maintenance of internal security act, 1971, in the habeas corpus petition (m. p. no. 700 of 1975) under article 226 of the constitution of india in which the contemner is a party as respondent no. 1. this court vide its order dated 1-8-1975 in that petition had directed production of the detenu in court on 8-8-1975 which was the date of hearing. but the contemner vide his crash wireless message dated 6-8-1975 addressed to the advocate-general and a copy to the.....
Judgment:

R.K. Tankha, J.

1. The present contempt proceedings against contemner, Arun Kshetrapal, District Magistrate, Rajnandgaon, arise out of his refusal to comply with this Court's order dated 1-8-1975 in a pending habeas corpus petition and as a consequence of a crash wireless message dated 6-8-1975 addressed by him to the Registrar of this Court in that connection.

2. A detenu, Vidhya Bhushan Thakur, has challenged the validity of his detention passed by the contemner under Section 3(1)(a) of the Maintenance of Internal Security Act, 1971, in the habeas corpus petition (M. P. No. 700 of 1975) under Article 226 of the Constitution of India in which the contemner is a party as respondent No. 1. This Court vide its order dated 1-8-1975 in that petition had directed production of the detenu in Court on 8-8-1975 which was the date of hearing. But the contemner vide his crash wireless message dated 6-8-1975 addressed to the Advocate-General and a copy to the Registrar of this Court, expressed his inability to obey the order of this Court in view of the general order issued by the State Government under Sub-section (2) of Section 268 of the Code of Criminal Procedure, 1973, excluding any person or class of persons from the operation of Section 267 of the said Code. The wireless message was brought to our notice as desired by the contemner. On 8-8-1975, we ordered issue of notice to the contemner, Arun Kshetrapal, District Magistrate, Rajnandgaon, to show cause why he should not be committed for contempt in exercise of the powers of this Court under Article 215 of the Constitution read with Section 10 of the Contempt of Courts Act, 1971 (No. 70 of 1971) and fixed 13-8-1975 as the date for the appearance of the contemner.

3. On 13-8-1975, the contemner appeared in this Court, but on a prayer being made by his counsel the hearing was adjourned for the next day, i.e., 14-8-1975, as time was required for filing of a reply, which was submitted in the form of an affidavit together with some annexures. In reply, the contemner pleaded for discharge of the rule nisi on the grounds that neither he committed any disobedience of the order of this Court nor the tenor of the wireless message constituted contempt of this Court.

4. On 14-8-1975, the contemner was also present in this Court but showed no remorse. On the other hand, learned Counsel appearing on his behalf justified his conduct by urging that that does not amount to contempt as ultimately the detenu was produced in this Court and the wireless message was only for information. It was further contended that at the most sending of wireless message to the Registrar of this Court was a mistake and the tenor of the message does not amount to contempt. Before the case could be closed for orders, learned Counsel for the contemner prayed time for the contemner to reflect on his conduct. That prayer was allowed by granting time till after lunch break. Then, at 2.15 P. M., the contemner. who was present in person along with Ms counsel, tendered an unqualified apology in writing which reads as under:

That I have full regards and respect for this Hon'ble Court. That I never intended to disobey any order of this Hon'ble Court. I never intended to disregard or show disrespect to this Hon'ble Court by any conduct on my part.

That the stand taken by me was under wrong advice and I offer my unconditional and unqualified apology to this Hon'ble Court.

I further submit that any aspersions, directly or impliedly cast on this Hon'ble Court during the address of the counsel was never meant and I offer my apology for the same.

I further express my regrets and tender my unconditional and unqualified apology for filing my affidavit in reply and I seek permission to withdraw it.

I offer my sincere unconditional and unqualified apology for sending wireless message dated 6-8-1975.

These, in short are the facts of the case.

5. The point arises for consideration is whether the apology so tendered by the contemner should be accepted and notice be discharged. We find it difficult to follow that course. The contemner, who is at present holding the office of a District Magistrate, belongs to the Indian Administrative Service and is supposed to know the law, responsibilities and duties of his office. After receiving a telegram dated 4-8-1975 (Contemner's Annexure-1) from the Advocate-General on 5-8-1975 regarding production of the detenu in this Court on 8-8-1975, the contemner directed the Superintendent Central Jail, Raipur, vide communication of the same date (Contemner's Annexure-II) to comply with the Court order and rightly so as the order of this Court was in exercise of the powers conferred under Article 226 of the Constitution and the rules framed thereunder. The contemner also understood the powers of this Court which is clear from his own document (Annexure '7'), a crash wireless message sent by him to the Home Secretary of the State Government on the very next day, i.e., on 6-8-1975 seeking a clarification. In this, annexure he has mentioned that the order of the Government has been made under Criminal Procedure Code. Then, without awaiting for a reply from the Government, he sent a crash wireless message (Contemner's Annexure-6) which led to the present proceedings against him. The said message reads as under:

To Advocate-General M. P. JBP.Ref. Registrar High Court JBP.From : DM RJNNo. 394/ST/75 D/- 6/8/75Ref. telegram dated 4th Aug. 75 Reg. habeas corpus petition filed by Vidya Bhushan Thakur (.) High Court has ordered to produce Vidya Bhushan Thakur on 8th Aug. 75 (.) In this connection your kind attention is invited to Govt. of M. P. Gazette Notification dated 1st Aug. 75 reg. attendance of misa detenus in Criminal Cases (.) following order under Section 267 of Criminal Procedure Code issued (.) Begins order (.) Bhopal dated 1/8/75 (.) No. 31-49/75/X-1 (.) Quote (.) in exercise of the powers conferred by Sub-section (1) of Section 278 of the Code of Criminal Procedure 1973 (No. 2 of 1974) the State Government having reg. to the likelihood of the disturbance of public order if the person detained under Clauses (i) and (ii) of Clause (A) of Sub-section (1) of Section 3 of the Maintenance of Internal Security Act, 1971 (No. 26 of 19711 is allowed to be removed from the prison In carrying out the order of the Court under Section 267 of the said Code and (ii) the public interest generally hereby directs that any person detained under detention order made under Sub-clauses (i) and (ii) of Clause (A) of Sub-section (1) of Section 33 of the Maintenance of Internal Security Act, 1971 (No. 26 of 1971) shall not be removed from the prison in which he/she is detained by order and in the name of the Government of Madhya Pradesh this order will override Court order under Section 267 and what is more the officer-in-charge of the prison will himself abstain from carrying out the Court's order vide Section 269(D) of the Code of Criminal Procedure 1973 (.) Suggest wherever and (sic) Court summons for production of misa detenus and read the attention of Court be drawn to the order is issued under Section 267 of Criminal Procedure Code (.) Inform your S. P. and Jail Superintendent accordingly (.) In the light of above Government notification you are requested to request the Court not to insist on the production of Vidya Bhushan Thakur as there is strong possibility of disturbance of public order if Vidya Bhushan Thakur is taken out from the Jail kindly inform me reg. the action taken.

Thus, the contemner knowing full well that the notification has no application, tried to flout or disobey the order of this Court. Even if it be assumed, though we do not think so, that the contemner was in some doubt, the responsibility of the important office he holds required as a matter of propriety to await a reply to his wireless message (Contemner's Annexure-7) sent to the State Government. In sending the wireless message (Contemner's Annexure-6) the contemner has exhibited an attitude of defiance and disrespect for the order of this Court. The contemner being himself a party in the habeas corpus petition had no business to address any communication to the High Court. Being a Government servant he could not claim any better privilege than a private litigant. Even the tenor of the message gives a clear indication of the contempt. We fail to understand the conduct of the contemner in sending a wireless message to this Court, unless he wanted to convey a piece of advice to the Court, asking it to recall its order dated 1-8-1975 for the production of the detenu. If he really wanted to reply to the message of the Advocate-General, he should have taken up the matter directly with him. His act of sending a wireless message to this Court was wholly uncalled for, and was obviously with an ulterior object. We take a serious view of such contumacious conduct on the part of the contemner. Even during the course of hearing, the contemner. who was present in person, showed no signs of regret by tendering an apology. The matter was hotly contested and if we may say it would not be wrong that at some stage the arguments showed complete want of contrition.

6. In the present case, the contemner has gone to the extent of making a false statement on oath in the last 11 lines of para 2 of his reply to the effect that the crash wireless message dated 6-8-1975 (Contemner's Annexure-6) was sent in pursuance of a telephonic talk with the Government Advocate while the annexure has no reference to such talk but the telegram dated 4-8-1975 sent by the Advocate-General. Swearing of a false affidavit by such a senior officer cannot be overlooked. We are constrained to observe that the contemner having realised the gravity of the offence committed by him tried to explain it away by making incorrect statement before this Court rather than apologising straightway. The contemner made himself liable for criminal prosecution by swearing a false affidavit. It was only after what transpired at the hearing, an awakening dawned upon him and later a prayer was made not to close the case for order. Having secured the time, during the afternoon session of the Court, the contemner submitted in writing his unconditional and unqualified apology stating inter alia that the stand taken by him was under a wrong advice and also expressed apology for the aspersions directly or indirectly cast upon the Court during the address of the counsel. Thus, the contemner in the present case had done both, first tried to justify Ms action and later tendered an apology. Even though under Explanation to Section 12 of the Contempt of Courts Act, 1971, there can be both, justification and an apology, an apology so tendered must be bona fide. The Explanation to Section 12 of the Act has changed the law only to that extent. Such apology, if any, must be to the satisfaction of the Court, and must be made bona fide. An apology tendered must not convey the impression that when the contemner sees that the Court is going to hold him guilty he then offers an apology as in the present case. In our opinion, an apology to be accepted, must be offered right at the start of the proceedings. The apology must be one coming from a sincere heart, and not as a matter of mere formality. A belated apology loses all its value. If the apology is tendered at a late stage it is liable to be considered as an afterthought and intended merely to avoid punishment. In Debabrata Bandhopadhyay v. The State of West Bengal AIR 1969 SC 189 : 1969 Cri LJ 401, Hidayatullah, C. J., speaking for their Lordships of the Supreme Court, while dealing with the effect of a belated apology, observed:.Of course, an apology must be offered and that too clearly and at the earliest opportunity. A person who offers a belated apology runs the risk that it may not be accepted for such an apology hardly shows the contrition which is the essence of the purging of a contempt....

7. The confidence in Court of justice which the public possesses must in no way be tarnished, diminished or shaken by contumacious behaviour of any person. We are quite alive to the position that it is indeed difficult and well-nigh impossible to frame a comprehensive and complete definition of 'contempt'. We would like to say that any act that curtails or impairs the freedom of the limits of the judicial proceeding must of necessity result in hampering the administration of law and in interfering with due course of justice. Oswald has defined 'contempt' to be constituted by any conduct which tends to bring the authority and administration of law into disrespect or disregard or to interfere with or prejudice parties, litigants or their witnesses during the litigation. (See : Oswald on Contempt, 3rd Edn. page 6). What constitutes contempt of Court has also been stated in Halsbury's Laws of England, Vol. 7, p. 286 as follows:

Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt or to lower his authority or to interfere with due course of Justice or the lawful process of the Court is contempt.

Black Odgers states that it is contempt of Court to publish words which tend to bring the administration of justice into contempt, to prejudice the fair trial of any case or matter which is a subject of civil or criminal proceeding or in any way to obstruct the cause of justice. We would also like to refer to a passage in Blackstone's celebrated Commentaries which reads as under:

Some of these contempts may arise in the face of the court, by rude and contumacious behaviour, by obstinacy, perseverance or prevarication, by breach of the peace or any wilful disturbance whatever; others in the absence of party, as by disobeying or treating with disrespect the King's writ or the rules or process of the Court, by perverting such writ or process to the purpose of private malice, extortion or injustice, by speaking or writing contemptuously of the Court, or Judges acting in their judicial capacity, by printing false accounts or even true ones, without proper permission, of cases then pending in judgment and by anything in short, that demonstrates a gross want of that regard and respect which, when our courts of Justice are deprived of their authority so necessary for the good order of Kingdom, is entirely lost among the people.

8. In Wilson v. Irwin 144 Key 311 : 138 SW 373 contempt was postulated as an effort to thwart justice or to interfere with its orderly administration. In common law, it is not essential to the existence of contempt for the conduct to actually obstruct justice; it is sufficient if the conduct tends to obstruct the administration of justice.

9. In view of all this, we are clear in our opinion that no officer of the Government, however high or exalted he may be, can take upon himself the responsibility of judging the correctness or validity of an order of any Court. If there is any confusion in his mind about the import of the order, the only remedy open to him is to approach that Court in accordance with law and it is not for him to take upon himself such responsibility of judging the order and take any action contrary to or inconsistent with the same on the basis of his own judgment. We are supported in our view by a decision of the Madras High Court in Mottur Hajee Abdul Rahman and Co. v. Deputy Commercial Tax Officer AIR 1969 Mad 232.

10. In the present case, it is clear that the contemner, who is a District Magistrate, instead of approaching the Advocate-General to get his doubts removed, sent a wireless message (Contemner's Annexure-6) to the Registrar of this Court, the object of which was not only to convey information but to bring it to the notice of this Court that it would not be possible for him to produce the detenu before this Court on the basis of his own interpretation of the Government notification dated 1-8-1975 which, in fact, had no application to the proceedings under Article 226 of the Constitution pending in this Court. As stated earlier, the contemner did not even wait for the reply of his clarification sought from the State Government in that regard. If an officer is permitted to do so, that would bring to end the very principle of law on the basis of which the entire fabric of our democratic society has been constructed. A similar view has also been taken in Homi Rustomji v. Sub-Inspector Baig AIR 1944 Lah 196 (SE). The temple of justice is wide open on the front and any party can come in and either by addressing the Court himself or by a duly appointed Advocate try to influence the judgment of the Court in the manner recognised and permitted by law. But the temple of justice has no opening in its rear and any person who tries to pierce a back door in the temple of justice is thereby trying to destroy that temple, the proper maintenance of which is necessary for all who live in an organised state. That is what was observed by a Full Bench of the Calcutta High Court in In the matter of a letter Concerning Suit No. 1947 of 1952 AIR 1959 Cal 174 : 1959 Cri LJ 316 (FB). What happened in the present case is that there was an attempt on the part of the contemner to divert the course of justice by showing defiance to the order of this Court by sending a wireless message (Contemner's Annexure-6) to the Registrar of this Court to bring it to the notice of this Court his inability to produce the detenu before the Court on the date fixed for the purpose. We are astonished to see that a person like the contemner, who is holding an important office and position of a District Magistrate, could think of sending such a wireless message to the High Court in a pending matter. It is a matter of grave concern to say that the contemner made an attempt to interfere with the order of this Court by trying to show disobedience. It is a different matter that ultimately the detenu was produced on the date of hearing before this Court presumably on the advice of the State Government. But the production of the detenu would only mitigate to some extent the gravity of the charge and nothing more.

11. In State v. Somnath Mahapatra AIR 1953 Orissa 33 : 1953 Cri LJ 349, a Division Bench of the Orissa High Court has held as under:

On the above considerations, it would clearly be a contempt of court for any official to pass an illegal order of detention 'and' on the basis thereof to decline to give effect to an order of release passed by the Court however bona fide the action of the said official may be. That being so, there is no reason to think that, such contempt is committed only when the concerned authority has actually flouted the authority of the Court by such an illegal order and not when he has passed an order intended to be so used. The basis of jurisdiction for contempt arises not merely from the actual flouting of the court's authority, but from the clear tendency that the particular act may have to undermine the authority of the Court.

12. State officials would do well to remember that this Court will not tolerate any interference with its authority or with the administration of justice in the State and that any such interference will be severely dealt with. In this connection we may usefully recall the words of Humphreys, J., in the case of Thomas Wilson referred to in Jyotirmoy Bhattacharjee v. Chief Secretary to the Government of West Bengal AIR 1952 Cal 562 : 1952 Cri LJ 1255. A detenu in England whose petition to the King's Bench was intercepted and suppressed by a Home Office official. Wilson moved the King's Bench to attach the Home Secretary for contempt of Court. The Court severely censured the action of the Home Office and Humphreys, J., characterised it as 'a great piece of impertinence'. The Home Secretary apologised to the Court and although this expression of regret was accepted and no further action was taken, Humphreys, J., in course of his judgment expressed himself as follows:

I am speaking only for myself and if any case is brought before me hereafter in which any person, I care not how high his position or how great his fame, be found to have interfered with that right (the right to come to Court) of one of his Majesty's subjects, I think, I should have no difficulty in putting in force with the assistance of other members of this Division, the great powers of the Queen's Bench Division of imprisoning such a person for contempt of Court.

Speaking for ourselves we fully endorse the view expressed by that eminent Judge although the circumstances in the present case are slightly different from Thomas Wilson's case. There is no doubt that under Article 215 of the Constitution the High Court being a Court of record possesses 'great powers' to which Humphreys, J., made a pointed reference.

13. In the present case, the contemner at first tried to justify his action in sending the communication and then realising that the sending of such communication amounted to gross contempt of Court, tried to wriggle out of the consequences of his act by tendering the apology, after the arguments were over. We have given the matter our anxious consideration in the light of the Explanation to Section 12 of the Contempt of Courts Act, 1971, and we are not satisfied that it is bona fide. In the present case, there was no apology, conditional or qualified, tendered by the contemner in his affidavit in reply to the show cause notice or even at the commencement of the hearing. The Explanation, therefore, is not attracted.

14. In our opinion, there could be no justification of the act of the contemner which was wholly mala fide. The contemner's act of sending the communication was clearly with an ulterior object and was, therefore, contumacious. In that connection, we would like to mention that on record of the case there is contemner's Annexure-8 in which directions have been issued by the State Government to all the District Magistrates in the State to the following effect:

Several detenus have filed habeas corpus petitions in the High Court. High Court has issued notices to D.M. in some cases to produce the detenus who have filed these petitions. In these cases you are advised to produce the detenus in the High Court on the day so fixed in case the High Court insists on such production. But the High Court should be informed well before the date on which the detenu has to be produced by an affidavit sworn by an officer-in-charge and through Advocate-General to the effect that there is danger to public order if the detenu is produced. The affidavit should be prepared in consultation with the Government Advocate. To facilitate production of detenu in the High Court at short notice the detenu be moved to jail of the town where the High Court or its Branch is situated.

We must express our satisfaction on the action taken by the State in matters of production of detenus in this Court when so ordered, which is a step in the right direction. The aforesaid communication of the State Government issued to all the District Magistrates if we may say so, truly represents the great tradition of the Indian administration ensuring respect to the High Court.

15. In view of what has been stated above, we are not prepared to accept the unconditional and unqualified apology tendered by the contemner by his affidavit dated 14-8-1975, submitted after the hearing. We are constrained to observe that the Court cannot but disapprove the absence of fairness and want of candour on his part which has given rise to the present proceedings. There was lack of adequate realisation of the duty on the part of the contemner, to which any officer or an authority, like him, highly placed owes to the Court. As we can see, the contemner has shown a clear tendency that he intended to undermine the authority of this Court and even went to the extent of swearing a false affidavit. It was urged by learned Counsel for the contemner at the close of the hearing that the contemner is of young age and, therefore, the matter should be viewed with leniency. Looking to the age of the contemner and also the fact that the detenu was eventually produced before the Court at the hearing, coupled with the expression in his affidavit that he acted on a wrong advice, we are inclined to take the belated apology tendered by him into consideration in the matter of inflicting punishment. We may here observe that we would have accepted his apology, even conditional or qualified, and dropped the proceedings if the contemner had offered; the same when he was told to do so right before the arguments in the case had commenced, which he declined. That being so, the contemner must suffer for his impertinence which is writ large in the present case. We, therefore, hold him guilty of contempt of Court.

16. For the reasons stated above, We convict the contemner under Article 215 of the Constitution read with Section 12(1) of the Contempt of Courts Act, 1971 and sentence him to suffer imprisonment till the rising of the Court and pay a fine of Rs. 500/-. However, having regard to the utter immaturity displayed by the contemner, who was evidently not guided by proper advice, we, as a matter of grace, accept his belated apology only for the limited purpose of remitting the punishment awarded to him under the proviso to Section 12(1) of the Contempt of Courts Act and remit the sentences. The contemner shall pay the paper-book costs and bear his own personally.


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