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State Vs. Bhawani Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Original Appeal No. 5 of 1967
Judge
Reported inAIR1968Delhi208; 4(1968)DLT174
ActsIndian Penal Code (IPC), 1860 - Sections 15
AppellantState
RespondentBhawani Singh and ors.
Advocates: K.C. Pandit,; Chabildas,; R.N. Malhtora and;
Cases ReferredState v. Bhawani Singh
Excerpt:
.....of the state except under authority of law had prerogative right to forcibly enter a citizen's house. - - since the local police had nto submitted any report to the court of the magistrate as to the commission of any offence necessitating search as contemplated by sections 154 and 157, code of criminal procedure, and they had also failed to forward under section 165(5) of the said code copies of the records made under sub sections (1) or (3) of section 165, the learned magistrate endorsed to shri bhawani singh, assistant sub inspector, station house officer, keylong (respondent-contemner no. in the present case, we are somewhat surprised to find that a very senior officer like shri h. responsibility for this state of affairs has to be shared by the society as a whole, including in..........in the action taken by the police authorities at keylong in january, 1967. from the order of the learned magistrate 1st class, lahoul at keylong dated 15th june, 1967 made on a miscapplication presented to that court by one shri phunchog angrup son of shri namgyal under section 523, criminal procedure code, the following facts emerge. as alleged in that application, on 2nd january, 1967 at about 8 a. m., the local police keylong had raided shri phunchog angrup's residential house and conducted its search till about 5 p.m. in the presence of the lambardar of the village and toher respectable persons. at the time, the police people took into possession his four keys which they had nto cared to return in spite of demands. since the local police had nto submitted any report to the court of.....
Judgment:

I.D. Dua, C.J.

(1) The Judgment of the Court was delivered by This case is second of its kind. the first one which was the subject-matter of Criminal Original Petition No. 2 of 1967 (State v. Bhawani Singh, A S. I.) was disposed of by a Full Bench of this Court on 27th June, 1967. The incident which gave rise to the proceedings in the prior case took place at Keylong on 6th May, 1967. The incident with which we are concerned in the present proceedings occurred sometime in June, 1967, though it has its rotos in the action taken by the police authorities at Keylong in January, 1967. From the order of the learned Magistrate 1st Class, Lahoul at Keylong dated 15th June, 1967 made on a miscapplication presented to that Court by one Shri Phunchog Angrup son of Shri Namgyal under section 523, Criminal Procedure Code, the following facts emerge. As alleged in that application, on 2nd January, 1967 at about 8 A. M., the local police Keylong had raided Shri Phunchog Angrup's residential house and conducted its search till about 5 P.M. in the presence of the Lambardar of the village and toher respectable persons. At the time, the police people took into possession his four keys which they had nto cared to return in spite of demands. Since the local police had nto submitted any report to the Court of the Magistrate as to the commission of any offence necessitating search as contemplated by sections 154 and 157, Code of Criminal Procedure, and they had also failed to forward under section 165(5) of the said Code copies of the records made under sub sections (1) or (3) of section 165, the learned Magistrate endorsed to Shri Bhawani Singh, Assistant sub inspector, Station House Officer, Keylong (respondent-contemner No. 1 in this Court) a copy of the application, asking him to report within two days along with the copies of the first information report and toher search documents and also to produce the case property. The Station House Officer did nto care to comply with the Courts order in spite of a subsequent reminder issued on 6th June, 1967. His reply was awaited till 8th June, 1967 but without any result. On 8th June, 1967, the Court brought the matter to the ntoice of the Superintendent of Police, Keylong, Shri H.C. Jatav (respondent-contemner No. 2 in this Court) requesting him to direct the Station House Officer to do the needful, but the Superintendent of Police also ignored the order of the Court. The learned Magistrate in the circumstances felt helpless and he obviously had no alternative but to proceed with recording the statement of the applicant before him, Shri Phunchog Angrup.

(2) The main prayer made before the learned Magistrate was for the return of the case property (four keys) to the owner. In the search said to have been conducted by the local police, no search warrants had been obtained from the Court which, according to the o'der, was located only a few hundred yards from the house of the applicant. In the absence of the necessary record, it was nto clear as to what were the grounds which had impelled the investigating police officer to make use of section 165(1) of the Code of Criminal Procedure and why the provisions of section 165(5) were nto complied with. In the absence of the record, the learned Magistrate was also unable to find whether the provisions of sections 102 and 103 of the Code of Criminal Procedure had been complied with in the matter of the search in question. The learned Magistrate has also observed in his order that no first information report seems to have been drawn up and submitted in compliance with sections 154 and 157, Criminal, Procedure Code. Finding it difficult to uphold the legality of the search, the learned Magistrate was constrained to conclude that the prayer of Shri Phunchog Angrup was genuine so far as the return of the case property was concerned. So holding, the Court ordered the four keys to be returned to the applicant. After making this order, the learned Magistrate felt compelled to record the following observations :-

'THEN,I cannto help to observe and find that the non-compliance of the orders of this Court buth by the said Sho and the said S.P. is certainly an ugly instance of contempt of this court which must be brought to the ntoice of the higher judicial and police authorities for whatever action they deem proper. Assessing the situation here, as created by the said attitude of the Police, I find myself helpless in taking any action in the matter. If this state of affairs is allowed to continue the administration of justice will certainly stand paralysed and it will be very difficult to deliver speedy justice to the public.'

A copy of this order was received in this Court, having been forwarded by the learned District & Sessions Judge, Mandi, on 27th June 1967. Pursuant to the orders made by S K. Kapur J., the present criminal original petition was registered and ntoices issued to Shri Bhawani Singh and Shri H. C. Jatav. It is in these circumstances that this matter has been posted before us for disposal.

(3) Shri Bhawani Singh is represented before us by Shri Chhabil Dass, Advocate and Shri H. C. Jatav by Shri R. N. Malhtora Advocate. buth the contemmers have tendered unqualified apology by means of affidavits and thrown themselves at the mercy of the Court. They have expressed sincere regrets for what they have done and have sworn that they have the utmost regard for the law and the law Courts and that they shall always obey the prccesse issued by the Courts of law. It may be pointed out that this is a second offence of this nature committed by Shri J hawani Singh which has been brought to the ntoice of this Court during the last three months.

(4) Shri R. N. Malhtora, the learned Advocate representing Shri H C. Jatav, after repeating the unqualified apology tendered by his client, attempted to argue that this Court had no jurisdiction to take cognizance of the offence of contempt because this offence is punishable under the Indian Penal Code. With the object of developing this argument, the learned counsel made a reference to section 175, Indian Penal Code, according to which a person, who being legally bound to produce or deliver up any document to any public servant, intentionally omits so to produce or deliver up the same, is liable to be punished with simple imprisonment or fine as prescribed therein. We informed the learned counsel that it was certainly his client's right, if he was so advised, even after tendering an unqualified apology on the merits of the case to question the jurisdiction of this Court under the law to proceed against bids client for contempt of Court, but in the present case, it was nto so much the intentional omission on the part of Shri Jatav to produce or deliver up the documents to the Court of the learned Magistrate as his disobedience of the orders issued by the Court of the learned Magistrate which constitutes the real gravamen of the offence of contempt of Court, and so far as this offence is concerned, section 175, Indian Penal Code, would hardly be relevant. Realizing the weakness of his position, the learned counsel gave up his attempt to question the jurisdiction of this Court.

(5) On behalf of Shri Bhawani Singh, the person primarily responsible for the search and the non-production of the documents, no attempt has been made to question the jurisdiction of this Court to proceed for contempt of Court against him. His counsel has repeated the unqualified apology and thrown his client at the mercy of the Court.

(6) As observed by this Court in State v. Bhawani Singh, Criminal Original Petition No. 2 of 1967 decided on 27th June, 1967 , the offence of contempt of Court is coeval with the administration of law by the State and its paramount idea is that no tribunal can function properly unless it is allowed to keep up its dignity and unless it has power to enforce its orders. The orders of the Courts of law and justice in this Republic are enforced through the police agency, and indeed it is the duty of this agency to carry out and enforce such orders and also to see that there is no obstruction caused to their enforcement. Disobedience on the part of such agency of orders of Courts of law and justice is, thereforee, an offence which ran be ignored only at the risk of rendering the courts imptoent, which would in turn bring into ridicule the judicial process. This would result in utter confusion in the realm and the administration of justice and the Rule of Law would be reduced to mockery. It was clarified there, are we consider it proper to stress once again, that an apology by a contemmer does nto entitle him to an order of discharge and it merely mitigates the offence in certain circumstances, and indeed the Court has to consider the matter only from the point of view of the administration of justice. It was further emphasised on that occassion that the apology should nto be tendered merely by way of an apology for an apology or a convenient device to escape punishment. On the toher, hand, it must be indicative of repodent regret and contrition exhibiting realisation or wrong having been done by the contemner and it mast he a free and frank expression of his feelings. On that occasion, this Court felt that perhaps Shri Bhawani Singh, who was nto quite alive to the implications of a liberal democratic set-up in this country, being just an Assistant Sub-Inspector of Police posted in a backward area had nto realised the gravity of his misconduct, with the result that this Court took a somewhat lenient view of his remissness. In the present case, we are somewhat surprised to find that a very senior officer like Shri H. C. Jatav, who belongs to the Indian Police Service, and has a standing of at least seven years should also have adopted an attitude of indifference towards the orders of the learned Magistrate. If officers of his status, standing and education are encouraged to adopt the attitude of indifference towards the orders of the Courts of law and justice, then our democracy will become a mere sham and the citizens would begin to lose faith in our Republican form of Government. The chief excellence of our Republican Government, may it be pointed out, lies in the checks and balances and in this set up, the judiciary has been entrusted nto only with the solemn duty of administering justice between man and man and between man and State, but also in the course of doing justice, to scrutinise in accordance with law the functioning of the executive authority when the constitutional and legal right of the citizens are in question. In the performance of this sacred constitutional duty by the Courts, no obstruction on the part of any agency, however high placed including the police agency, can be tolerated. To do so may mean an indefensible lapse of their obiligation, if nto also abandonment of their duties by the Courts. Indeed, the executive agency in illegally refusing to execute and respect the orders of the Courts of law and justice would seem to us to do so with the peril of the possibility of proceedings for contempt, as the present instance illustrates. We are conscious of the fact that in the Union territory of Himachal Pradesh, people living in the remtoor areas have nto yet realised and become conscious of the boons of this democratic set-up. They are perhaps still labouring under the mediaeval impression that they have no rights at all as against officers of the Government, particularly police officers. Democracy in our country seems by and large to be tempered with traditional conception of benevolent or patriarchal autocracy which seems in certain areas to be the real cause of confusion in day-to-day lite. This outlook needs to be suitably modified so as to fit in with the present democrtic set-up. It, thereforee, seems to us to be essential for those in power and position of governmental authority to constantly bear in mind that in our set-up, law is nto to govern only the relationship between individuals: it is also to govern the Government itself. It is only them that the individual would be content with our democratic legal State, it is hoped that the authorities in this Union territory would realise the importance of this aspect and see that the police officers in future do nto consider themselves free from all checks and limitations which law has imposed on them when they discharge their official functions and that they are nto led away by their excessive zeal in achieving their ends speedily and by their administrative exigencies, so much as to consider themselves above the law.

(7) Assuming On the basis of their affidavits that the conduct of the two contemners before as is more due to their unawareness of the real implications and of the ethical components of a democratic set-up rather than to an intention to deliberately disobey the orders of the Courts we feel that it would serve the ends of justice if we direct Shri Bhawni Singh to pay a fine of Rs. 100.00 within a period of two months and also give him antoher warning to be more careful in future and if we warn Shri H. C. Jatav to be careful in future. Shri Jatav would also be liable to pay costs of these proceedings which we fix at Rs. 100.00. These costs must be paid within one month from today. We also direct that the orders of the learned Magistrate must be obeyed and the keys found by him to have been secured by the police at Keylong be restored to the owner, Shri Phunchog Angrup without undue delay and report submitted to the learned Magistrate that his order has been complied with. In case there is some difficulty in complying with that order, the respondents in this Court should approach the learned Magistrate in accordance with law and explain the position which would of course be considered and judicially dealt with by that Court. We fix a period of three weeks within which if no report of compliance with the learned Magistrate order is made, an appropriate application explaining the resons for non-compliance should be made so that the learned Magistrate may make suitable orders in accordance with law.

(8) In so far as the question of the search conducted by the local police at Keylong is concerned, this matter must be left to the departmental authorities to probe into and to deal with. It is, however, hoped that they would bring to the ntoice of all the police personnel in the Union territory of Himachal Pradesh that searches under the Code of Criminal Procedure have to be conducted strictly in accordance with the formalities and within the legal limits prescribed in the said Code. An Indian citizen's house, it must always be remembered, is his castle because next to his personal freedom comes the freedom of his home. Just as a citizen cannto be deprived of his personal liberty except under authority of law, similarly, no officer of the State has a prerogative right to forcibly enter a citizen's house except under the authority of law which, it may be pointed out, is open to be examined by the Courts of law and justice. In our egalitarian set-up under the Constitution framed after deep deliberation, the poorest man in his hatched mud hut or in his ctotage even though made of straw is entitled to resist and defy forcible entry except when such entry has the sanction and authority of law.

(9) We have taken pains to deal with this aspect at some length because we find that the police officers in our country generally, and in the Union territory of Himachal Pradesh particularly, have nto yet realised the legal limitations imposed upon them by the law in their dealings with the citizens and they have nto so far fully adjusted themselves to the changed set-up in the Indian Republic. Responsibility for this state of affairs has to be shared by the society as a whole, including in particular the administrators, whether elected politicians or servicemen, as well as the enlightened citizens, and the sooner the image of our administrative set-up in its day to day working is brought in line with the principles enshrined in our Constitution the better for for the Rule of law in this Republic. Indifference in this respect is fraught with grave danger to the future of our liberal democratic life.


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