Kh Brojen Singh vs K.K. Sethi and Others

V.D. Gyani, J.—By this petition under Article 215 of the Constitution, the Petitioner prays for punishing the contemners, for their wilful and deliberate olsobedience of the Court, in a Habeas Corpus petition being Civil Rule No. 39/95, directing the contemners to set the Petitioner at liberty forthwith.

The Petitioner was detained under the National Security Act, 1980 (for short N.S.A.) as per order dated 28.4.95 passed by the District Magistrate, Thoubal. The Petitioner challenged his detention by filing a Habeas Corpus petition, Civil Rule No. 39/95, which was allowed by this Court vide order dated 7.9.95 (Annexure-P-I) making the following direction:

In the premises aforesaid, this petition is allowed. The impugned order of detention issued by the District Magistrate, Thoubal on 28.4.95 as well as the order of confirmation issued by the State Government on 5.6.95 are quashed. The Petitioner shall be set at liberty forthwith unless he is required in connection with any other case.

In compliance of the above order, a release order was issued by the Registry the same day, that is, on 7.9.95, which was received by the Secretary (Home). Govt. of Manipur. On 8.9.95, on the same day, the order was sent to District Magistrate Thouhal as well. Despite specific communication and service of the order the Petitioner was not released nor any reason assigned, he therefore addressed a letter dated 5.10.95 through his Counsel. Even two months after the petition being allowed on 7.9.95 and receipt of the release order the Petitioner was not released. He therefore filed the present petition for drawing contempt proceedings agains the Respondents on 23.11.95 when he was (sic) in jail. On 27.11.95 notice were directed to be issued to the contemners calling upon them to show cause as to why contempt proceedings should be initiated against them.

Thereafter the petition came to be listed on 10.1.95 (sic) (it must be 10.1.96) when it was directed to be listed in first week of February. Accordingly it was listed on 2.2.96 when the learned Govt. Advocate diclared that-

So far he knows that the Respondents have passed order for releasing the detenue and he will be in a position to submit a copy of that order on Monday next.

The petition was listed on 5.2.96, when an elaborate order detailing facts which delayed the Petitioner''s release, and the conduct of the Respondents was passed, it is being reproduced hereunder:

By order dated 27.11.95 this Court while accepting the petition for non compliance of this Court''s order dated 7.9.95 in C.R. (HC) 39/95, issued notice on the Respondent/contemners and directed the Registry to take up for service of the notices on the Respondents forthwith. Accordingly notices were issued and today Mr. A. Jagatchandra, Govt. Advocate has produced a copy of the letter dated 21st December, 1995 addressed to the Asstt. Registrar (III). Gauhati High Court, Imphal Bench intimating that the detenu Mr. Kh. Brojen Singh had been released with effect from 2.11.95. The admitted position is that by the order dated 7.9.95 this Court directed to release the detenu forthwith. In that case the Petitioner ought to have been released on that day itself. However, two or there days might have been necessary for the Government to communicate the order to the prison authority. But in this case from the letter dated 21st December, 95 it is seen that the Respondent government preferred SLP before the Apex Court and by order dated 3.11.95 the SLP was rejected. This information was received by the Respondent/contemners on 17.11.95 and accordingly step was taken to release the detenu which was done admittedly on 21.11.95. It is also seen that as per report of the jail authority the detenue was released with effect from 23.11.95.

The fact remains that while the order was passed by this Court on 7.9.95 the government did not pray before this Court for time to file SLP before the Apex Court and there is not any stay of the order of this Court as such. Further as stated in the Bar in the SLP also no stay order was granted by the Apex Court. Therefore admittedly from 7.9.95 till 23.11.95, that is for about two and half months, the detenu was kept behind the bar without any stay order of this Court. Apparently there is a prima facie case for violation of this Court''s order dated 7.9.95 against the Respondent/contemners.

Registry is directed to immediately issue notice on the Respondent/contemners, namely, Shri K.K. Sethi, IAS, Chief Secretary (Home) to the Govt. of Manipur, Shri Kh Mohendra Singh, Joint Secretary (Home) to the Govt. of Manipur and Shri Letkhogin Haokip, IAS, District Magistrate, Thoubal District to appear personally before this Court on 13.2.96 at 10.30 AM positively.

The contemners have filed their affidavits, attempting to explain what delayed the compliance of writ issued by this Court on 7.9.95, while regretting and apologising in a very guarded language, they have also advanced justification for their non-implementation of the Writ of Habeas Corpus, issued by this Court. Relevant passages from their affidavits, so far as they are material, are extracted and reproduced hereunder, Kh. Mohendra Singh, Respondent No. 2, who was Joint Secretary (Home) at the material time has deposed:

That, I state that the order dated 7.9.95 passed by the Hon''ble Court in C.R. (HC) No. 39 of 1995 was complied by the State Government by issuing an order of Revocation on 21.11.1995 in exercise of power u/s 14(1) of the National Security Act, 1980.

That, I respectfully admit that there was some delay in issuing the aforesaid revocation order. The delay was caused through bonafide mistake on the part of the State machinery and for this I regret and apologise before the Hon''ble Court.

While admitting ''some'' delay (from 7.9.95, the date on which Writ was issued and 23.11.95 when the detenu was actually released, total 76 days excluding the date of release) yet it is ''some'' delay, caused through ''bona fide mistake''. The Respondent No. 2 has averred:

That, I beg to state that the file of the Home Deptt. being No. 17(1)/26/95-H, has put up to me on 12.9.1995 and the same been discussed with me. The State Government desired to file an SLP before the Supreme Court of India on having been found some reasonable grounds and materials for appeal and in view of the bad situation of law and order in the State of Manipur. Accordingly the file was forwarded for necessary follow on action.

While taking such decision the State Govt. failed to pray for a stay of the said order before the Hon''ble High Court and it so happened through oversight. Accordingly the SLP was filed with a separate prayer for stay of the quashing order dated 7.9.1995 passed in C.R. (HC) No. 13 of 1995. That, it is humbly submitted that the direction issued by this Hon''ble High Court to the State Government is to be implemented by collective actions of the officers as per the rules of business from the Government of Manipur which was framed under Article 166 of the Constitution of India after a decision of the Govt. was taken for filing SLP, the relevant file went out of my direct custody and Shri Gyanprakash Singh, M.C.S. Under Secretary was deputed along with the connected files for filing SLP hence, I was put under difficulties to carry out the follow on actions. Thus, while implementing the order of the Hon''ble Court, some delay was caused for which it is very much regretted.

The contemner-Respondent No. 1, in his affidavit dated 20.2.96, has more or less in the same vein, as deposed by the contemner-Respondent No. 2, has repeated the same story, admitting ''some delay'' through ''bona fide mistake'', still seeking to justify the action, he has stated:

That, I respectfully admit that there was some delay in issuing the aforesaid revocation order. The delay was caused through bona fide mistake on the part of the State machinery and for this I regret and apologise before the Hon''ble Court.

That I would like to submit before the Hon''ble Court that in view of the bad situation of law and order in the State of Manipur and having found some reasonable ground and materials for appeal, the Home Deptt. of the State Govt. in consultation with the Dept. of law, took a decision to file a SLP before the Hon''ble Supreme Court of India against the quashing order dated 7.9.95 passed in C.R. (HC) No. 39 of 1995 with a prayer to stay the order.

While taking such decision the State Govt. failed to pray for a stay of the said order before the Hon''ble High Court and it so happened through oversight. Accordingly the SLP was filed with a separate prayer for stay of the quashing order.

Pleading no intention to disobey the order or delay its compliance, he has further stated:

That, I submit that the delay so caused was due to the above unavoidable circumstances beyond my control and I further submit that there was no wilful and intention to disobey and dishonour the order dated 7.9.95 passed by the Hon''ble Court.

Therefore, I deny the allegations that I have committed wilful disobedience of the order and fail to implement the Hon''ble Courts order intentionally is disregard and disrespect of the order. I had no such intention to (sic) me disregard the order of the Hon''ble Court.

Hence, once again I apologise for the mistake and delay so cases and also for the inconveniences.

The Respondent-contemners No. 3, seeking shelter behind Section 14 of the N.S.A. has averred in his affidavit:

That, I beg to submit that as per provisions laid u/s 14 of the National Security Act, I have no authority and jurisdiction to issue any order of revocation or modification of the detention order issued by me in my capacity as District Magistrate. The authority of modification or revocation of the detention order in the instant case rest with the State Government only as per aforesaid provisions of law.

Quoting Section 14 of the N.S.A. in his affidavit, he has further added.

This being the legal (sic) Court passed on 7.9.1995 in C.R. (HC) No. 39 of 1995.

Mr. Nilamani Singh, Sr. Counsel appearing for the Petitioner argued that the contemners have shown a callous disregard contumacious attitude towards the Writ issued by the Court, their conduct is reprehensible. While no one disputes the right of filing an appeal, mere intention to file the same does not arrest or stay the operation of the Writ issued by the Court. He pointed out that even after dismissal of the SLP by the Supreme Court on 3.11.95, the detenue was not actually released till 23.11.95. Such approach to a Writ of Habeas Corpus issued by the High Court lowers the authority of the High Court in the estimation of general public. If the Writs and more particularly the Writ of Habeas Corpus is allowed to be decied and wilfully flouted by persons in authorities in the manner as has been done in the instant case, apart from violating the fundamental rights of the Petitioner, has certainly resulted in shaking the confidence of the people, in the authority of the Court, which by the contumacious conduct of the contemners has been considerably undermined. The apology is if it can be so called, is belated and offered by the contemners to ward off the consequences of their wilful defiance of this Court''s order. He urge that a deterrent punishment is called for to protect the dignity of the Court.

Mr. kerani Singh, learned Sr. Counsel appearing for the contemners, faced with the above noted factual position, submitted that the apology offered by the contemners Should be accepted. In their anxiety to see that the public order is maintained in otherwise disturbed State, they acted without any intention to disobey the Court''s order. They had approached the Supreme Court in appeal which of course was lost. He conceded that the authorities should have approached this Court seeking stay of the order but this omission on their part should not be viewed as a contempt, more so when they have explained the whole position in their respective affidavits and also offered apology.

Learned Counsel for the Petitioner inviting attention to the revocation order passed u/s 14 of the N.S.A. submitted that the contumacious conduct is writ large in Respondents action, having lost in appeal before the Supreme Court, he questioned the propriety of not only passing the revocation order but also giving to effect to it, ignoring the order passed by this Court on 7.9.95, quashing the detention order, further upheld by the Supreme Court, what was there to be revoked ? he asked as submitted that is yet another aggravated form of showing disrespect to the Writ issued by this Court, the detenue was not released in compliance of the Writ, but on revocation of the detention order dated 21.11.95 as passed by the (sic). The Writ issued on 7.9.95 by this Court was ignored, allow (sic) by resorting to State Govt''s power of (sic). There is much force in the submission made by the learned Counsel (sic) with at the appropriate state.

Just have a look at the crude facts, a Writ of Habeas Corpus issued by the Court remains unimplemented for seventysix days and the justification rather excuse offered is that State Govt. thought of filing an appeal to the Supreme Court. Even actual filing of appeal does not result in stay of the order appealed against. In the instant case mere contemplation to file appeal by the State Govt. was taken for granted as stay of the Writ issued by the Court. Once the order of detention was quashed, under what authority of law the detenue could be continued to be detained? How could the Jailor refuse to carry out the release order ? and under what authority, or order, once the detention order was quashed by this Court continued, he kept the detenue in his custody ? The above facts are not disputed, and it cannot be doubted that they are in clear defiance of the Writ issued by the Court on 7.9.95, and the Respondents adamant attitude and persistent conduct of wilful defiance, constitutes gross contempt of Court. Indeed it was not been disputed either in the affidavites filed by the Respondent contemners or the learned Counsel appearing for them.

The plea taken by them is that it was not a wilful or deliberate disobedience, it was a bona fide mistake and they have apologised to the Court.

Intention or motive if not the criteria, for deciding the question of contempt, although it may be a relevant factor when it comes to imposition of punishment (See Delhi Development Authority Vs. Skipper Construction and Another, Mens-rea is not necessary to constitute contempt of Court. In cases of contempt it is not the intentipn of the contemners, but the effect of undermining or lowering the Court in the estimation of public, that is the real test. The test lies not in the object, in the mind of the contemner but in the tendency which his outward acts inherently possess and manifests in lowering the authority of the Court.

To say that it was a bona fide mistake on the part of the contemners, is again understimating the whole thing for a self serving purpose. Ignorance of law cannot be an excuse for any one charged with contempt, more particularly in case of persons in authority whose contumacious conduct has resulted in seventy six days further incarceration of the Petitioner. What is that bona fide mistake. The Respondent-contemners in their respective affidavits have referred to consultation with the Law Department. The State Govt. intended to file an appeal. It was open to the State to do so. But how could the implemenation of the writ be postponed or deferred till dismissal of the SLP ? Bona fide mistake suggested is that the (sic) failed to approach this Court praying for stay of the (sic) has not been done, Apat from aided and assisted by law (sic) Remembrancer. Law (sic) in the (sic) at proaching the Court Metely taking a decision to go in apperas by itself (sic) not arrest the operation of the release order. It is altogether (sic)how the Court could have once having quashed the detention order, stayed its operation. On what grounds the Petitioner could be continued in detention ?

Now coming to the question of apology, firstly, the apology has been offered at a belated stage only after dismissal of the SLP filed before the Supreme Court. The SLP was dismissed on 3.11.95 by the Supreme Court and the apology, as contained in the counter affidavit was filed on 26th February, 1996. The release order was passed on 7th September, 1996 and notice of contempt was issued on 27.11.95. The Petitioner has in his petition specifically averred that he had approached the contemners by letter dt. 5.10.95 vide Annexure-P-2, the Respondents have not disputed the receipt of this letter yet, they deliberately defied the Court''s order. An apology is not an weapon of defence to purge the guilt of an offence. It is intended to be evidence of real contriveness, the conscience on a wrong done and injury inflicted and an earnest desire to make such remorse, lies within the power of the wrong doer. The apology must be unconditional and indicative of remorse and must be tendered at the earliest opportunity. In the instant case, the apology has been filed merely to avoid punishment, such apology cannot be acccpted.

It is a case of issuance of a writ of Habeas Corpus. The detenue was ordered to be released on 7.9.95. It took seventy six days for the contemners to actually release him on 23.11.95, simply because the State thought of filing an appeal before the Supreme Court, the detenue was not released and even after the upholding of this Court''s order dt. 7.9.95 by the Supreme Court and the dismissal of SLP filed by the state on 3.11.95, what the Respondents have done ? Just have a look at the order dt. 21.11.95, Annexure-D/1, filed by the Home Secretary. It is an order of revocation by the State u/s 14 (I) of the N.S.A. It is not the writ issued by the Court, which was given effect to, it is the revocation of the detention order u/s 14(I) of the N.S.A., us passed by the State, revoking the detention order passed by the District Magistrate, which ultimately led to the release of the detenue. Let there be no misconception about the legal position the implementation and enforceability of a Writ issued by the Court quashing the detention order passed by the District Magistrate in exercise of his power u/s 3(3) of the N.S.A., as approved by the State u/s 3(4) of the N.S.A. does not depend on is revocation by the State u/s 14(1) of the N S.A. Once the detention order is quashed, there remains nothing to be revoked by the State. This merely goes to show (sic) of the (sic) the dismissed of the (sic) by the Supreme Court. They (sic) and (sic) by the Writ (sic) by the Court (sic) in seventy six days further imprisonment of the (sic)in law to be released on the same day, the order/writ was issued. The Central Jail where he was lodged is itself at Imphal where the High Court Bench is located.

While wide powers of preventive detention u/s 3 of the N.S.A. are conferred on the State Govt. which can also be exercised by District Magistrate or a Police Commissioner under Sub-section (3), subject of course on fulfilment of conditions mentioned therein and even the power to make fresh detention order u/s 3 against the same person, in case where fresh fact have arisen, after the revocation or expiry of the detention order, does not open to the State to flout the Writ issued by the Court on quashing the detention order. It is established beyond any reasonable doubt that the contemners are guilty of wilful dis-obedience and (sic)fiance of this Court''s Writ of Habeas Corpus, as issued on 7.9.95 in Civil Rule (HC) 39/95. In Dushyant Somal Capt. v. Sushma Somal AIR 1981 SC 1086 , where a Writ of Habeas Corpus was filed by the wife in respect of her child, who was unauthorised taken away by her husband from her lawful custody, the High Court having issued a Writ directing the husband to produce the child in Court, but the husband pleading impossibility of compliance of the Court''s order found him guilty of contempt of Court, the High Court directed him to be detained in civil prison until the production of the child, the Supreme Court modifying the order sentenced him three months simple imprisonment and a fine of Rs. 300/-. The case at hand relates to one of the most precious right of a citizen, his liberty, next only to life. The Writ of Habeas Corpus is a valuable right, which cannot be allowed to be stripped by the persistent, wilful defiance of the authorities. The following observations made by the Supreme Court in U.P. Sales Tax Services Association Vs. Taxation Bar Association, Agra and others, : is aptly pertinent to be noted in the present context:

It rule of law is to have any meaning and (sic) he (sic) or a statutory authority and the cal learned the (sic) then (sic) allowed to be shaken (sic) or (sic) tribunals exercising judicial functions from the highest to the (sic) by their constitution entrusted with functions directly connected with the administration of justice. It is that expectation and confidence of all those, who have or are likely to have business in that Court or tribunal, which should be maintained so that the Court/tribunal perform all their function on a higher level of rectitude without fear or favour, affection or ill-will.

In cases where 15 days delay in disposal of repesentation made by a detena against his preventive detention has been held to be fatal, seventy six days delay in implementation of the release order of the detenue, issued by the Court is sought to be justified or grounds (sic) untenable and conduct (sic) the Petitioner in (sic) for (sic) without any (sic) to the (sic) and (sic) personal (sic) established by law. It is a (sic) paradox that all this was going on, as (sic) the affidavits filed by the contemners in consultation with the State Law Department. If that be so, it must be said that those at the helm of affairs in Law Department have betrayed the rudimentary knowledge of the Constitutional law.

In the midst of rigours of preventive detention laws, procedural fairness, is at least one undubitable minimal requirement which unfortunately has been given a convenient go-bye in the instant case. The detention is quashed, writ issued yet the detenue is not released merely because the State thought of filing an appeal and even after dismissal of appeal by the Supreme Court, yet the detenue is imprisoned for another three weeks. Is this the procedure established by law to (sic) the Petitioner his liberty the moment his detention order was quashed, but he was contined and (sic) for another seventy six days making a (sic) of (sic) right and the writ issued by the High Court.

The Supreme Court in a very recent judgment, Kamleshkumar Ishwardas Patel Vs. Union of India (UOI) and Others, has notic that the procedural safeguards are required to be zealously watched and enforced by the Courts.

Taking a total view of the matter, the apology, as already discussed above, cannot be accepted. The Respondents are held to be guilty of contempt of Court and they are sentenced to undergo simple imprisonment for a period of two months, with fine of Rs. 2000/- each, or in default of payment of fine to suffer a further term of fifteen days simple imprisonment. The Director General of Police, Manipur is directed to see that the above order is executed and carried out within 30 (thirty) days from the date of this order.