M. Muruganandham vs Narasimhavarman The Assistant Commissioner of Police

T. Mathivanan, J.—This petition is filed by the Petitioner under Section11 of the Contempt of Courts Act, to punish theRespondent for not obeying the Order of this Courtdated 01.12.2010 and made in Crl.O.P. No. 26138 of 2010.

The excerpt of the facts, which is absolutelynecessary for the disposal of this petition is detailed asunder:

2.1. The Petitioner had filed a petition inCrl.O.P. No. 26138 of 2010 u/s 482 of the Code of Criminal Procedure, seeking a direction to the Commissionerof the Police, Egmore, Chennai to transfer theinvestigation of the case in Crime No. 324 of 2010 from thefile of the Inspector of Police, J2 Adyar Police Station,Chennai to any other fair and competent investigationofficer or agency.

2.2. In the above said petition, the Petitioner hadalleged that a crack was developed in his maritalrelationship with his first wife Megala as she was tryingto do away with his life by poisoning him. He had alsoalleged that she was trying to attack him with dangerous weapon, with the aide of hooligans.

2.3. On account of this reason, he had obtained acustomary divorce from her, after paying the compensationand maintenance as a whole by executing a moochalika beforethe Panchayathars and family elders. Thereafter, she hasbeen living separately in Chidambaram along with her threechildren.

2.4. The Petitioner had also alleged that on21.02.2010, his elder son one Gopilingam came to his officein Adyar with rowdy elements and put him under threat andsubsequently he had taken away his Toyota Innova Carbearing registration No. TN07 BB4060 (Silver colour) toChidambaram. Hence, the Petitioner had lodged a complaintbefore the Inspector of Police (L&O), J2 Adyar PoliceStation, Chennai, on 24.05.2010 and based on his complainta case in Crime No. 324 of 2010, under Sections 428, 379 and506(ii) I.P.C., was registered on 26.05.2010.

2.5. He had also stated that he had approached theInspector of Police, attached to J2 Adyar Police Station toseize the Toyota Innova Car from his first wife Megala.

But, the above said Inspector of Police, had not takenpreliminary steps to seize the car as he was having hand inglow with the Petitioner''s first wife. Even inspite of hisrepresentation either in person or through post, neitherthe Commissioner of Police, Egmore, Chennai, nor theInspector of Police, attached to J2 Adyar Police Stationhad taken any effective steps to investigate the matter. Hence, he had chosen to knock at the door of this Court byfiling a petition in Crl.O.P. No. 26138 of 2010 to transferthe investigation pertaining to the case in Crime No. 324 of2010 from the file of the Inspector of Police, J2 AdyarPolice Station to any other competent investigation officeror agency.

2.6. After hearing both sides, this Court has passedan Order on 01.12.2010 directing the Commissioner ofPolice, Egmore, Chennai to depute the AssistantCommissioner of Police, Adyar Police Station, who is theRespondent/contemnor herein to take up the case in CrimeNo. 324 of 2010 for investigation. The Commissioner ofPolice, Egmore, Chennai was also directed to transfer thecase in Crime No. 324 of 2010 from the file of the Inspectorof Police, Adyar Chennai to the file of the Assistant Commissioner of Police, Adyar, Chennai and the AssistantCommissioner of Police, Adyar Police Station, the contemnorherein, was also directed to conduct the investigation inan efficacious and impartial manner and complete the samewithin a stipulated period of three weeks and if it seemsnecessary to seize the vehicle.

In this regard, the learned Counsel for the Petitioner would submit that soon after passing of the Order on 01.12.2010, the Petitioner had communicated thesame to the Respondent/contemnor on 07.01.2011. Even inspite of the receipt of a copy of the Order dated01.12.2010, the contemnor did not bother to take up anyaction against the accused persons. He would submitfurther that under the influence of one Mr. Mahendran,presently Additional Director General of Police, Vigilanceand Anti-Corruption Department, the Respondent herein wasvery reluctant in complying with the Order of this Court. He would submit further that the vehicle was actuallyseized by the contemnor party and it was driven from theplace of seizure to the distance of 100 Kms. However, onthe clout of the above said Mahendran, the vehicle wastaken back to Chidambaram and handed over to Megala, who is the first wife of the Petitioner.

The learned Counsel for the Petitioner would submit further that even after the issuance of contempt noticefrom this Court, the Respondent, without taking anyeffective steps to investigate the matter, had the audacityto inform this Court that he had closed the complaint asmistake of fact only on the instruction given by the saidMahendran.

The learned Counsel for the Petitioner has alsoadded that the Respondent/contemnor had called the secondwife of the Petitioner Dr. Sushmitha Priya over phone andthreatened her to ask her husband to withdraw the contemptpetition filed against him, otherwise her husband, who isthe Petitioner herein would face the consequences. Thevery fact has been incorporated in the better affidavitfiled by the Petitioner.

When this contempt petition came up for hearing on16.06.2011, the learned Counsel for the Petitioner hadrepresented that after service of notice to the contemnor,he himself had called the Petitioner over phone andthreatened with dire consequence. The learned Government Advocate (Criminal Side) had submitted that he wouldinstruct the contemnor to file an affidavit in respect ofthe steps so far taken by him in obedience to the order ofthis Court. On hearing the learned Counsel for thePetitioner as well as the learned Government Advocate(Criminal Side), the Respondent/contemnor was directed tofile an affidavit explaining the reasons for not complyingwith the order of this Court within the stipulated time asdirected. The Petitioner was also directed to file abetter affidavit.

The Respondent/contemnor has filed his affidavitand thereby at the first instance he has tendered hisunconditional apology for any wrong doing on his part andhe has also submitted that there was neither wilful nordeliberate intention to disobey the Order of this Court.

Based on the above, the learned Public Prosecutorhas submitted that the complaint lodged by the Petitionerwas registered on 26.05.2010 in Crime No. 324 of 2010 underSections 428, 379 and 506(ii) I.P.C. on the file of the J2Adyar Police Station by one Madasamy, Sub-Inspector ofPolice and thereafter the investigation was taken up by one Selvam, Inspector of Police, attached to J2 Police Station, Adyar.

The learned Public Prosecutor has also submittedthat the Inspector of Police during the course of hisinvestigation had examined certain witnesses and understoodthat the Petitioner had married one Megala in the year 1986and during their wedlock she delivered three children andafter 17 years of their marriage, there arisen a problemand thereafter the Petitioner had filed a petition inO.P. No. 4143 of 2009 for the relief of divorce, before theFamily Court.

The learned Public Prosecutor would submit thatthe investigating officer was also put understand thatduring the pendency of the divorce petition, the Petitionergot married to one Dr. Sushmitha Priya sometime in the year2006 and their marriage was also registered and that thePetitioner is also having a child through her. He has alsosubmitted that the Petitioner has been living with hissecond wife at Kancheepuram, where he is having his ownproperty.

The learned Public Prosecutor has also maintianed that the Petitioner has till date parted with nearly onecrore rupees, 250 soverigns of jewels and two cars to thefirst wife and he has also developed some family problemwith his first wife and his son Gobilingam regarding theshare of the property, which were earned by him.

The learned Public Prosecutor has also adverted tothat the Petitioner did not intend to give any money orproperty to the first wife and her children. After thecompletion of the investigation, the Inspector of Police,attached to J2 Adyar Police Station had filed a finalreport on 30.06.2010 before the learned IX MetropolitanMagistrate, Saidapet, treating the case as mistake of fact.

The learned Public Prosecutor has also continuedthat the Petitioner, who is the complainant had refused toreceive the RC notice and therefore as required by law,after following due procedure, the same was stuck outsidethe house and the signatures of his neighbours wereobtained. Further, the learned Public Prosecutor has alsoadded that in pursuant to the direction of this Court dated01.12.2010 and made in Crl.O.P. No. 26138 of 2010, theRespondent/contemnor had received the case diary and taken up further investigation. He then visited the place ofoccurrence and verified the case diary and he had alsoexamined some of the witnesses.

The learned Public Prosecutor has argued that asper the allegations levelled in the complaint by thePetitioner, his Innova Car was taken away by his wifeMegala and son Gobilingam and five others on 21.02.2010 at 01.30 hours without his knowledge. When the Respondent hadexamined the witnesses, who were present near the allegedplace of occurrence, they did not corroborate the complaintlodged by the Petitioner and on detailed investigation itwas revealed that there was no such occurrence on theparticular date, time and place ie.on 21.02.2010 atmidnight 01.30 hours.

The learned Public Prosecutor while advancing hisarguments has also drawn the attention of this Court to theaverments of the petition filed by the Petitioner beforethe Family Court in which the Petitioner had admitted thathe himself had handed over the said Innova Car to his wifeMegala for the use of his children. He therefore wouldsubmit that the candid admission made by the Petitioner in his petition before the Family Court is entirely contraryto the averments of the complaint and therefore the sectionof law mentioned in the first information report underSection 379 I.P.C.is not made applicable.

The learned Public Prosecutor has also canvassedthat as per the contention of the Petitioner, theoccurrence was taken place on 21.02.2010 at midnight 01.30hours. But, he had chosen to file a complaint immediatelyand he had filed it only on 24.05.2010. In thisconnection, the learned Government Advocate (Criminal Side)would submit that there was an abnormal delay ie.threemonths in lodging the complaint from the date ofoccurrence and after the completion of the investigation,the Respondent had also filed a negative investigationreport before the learned IX Metropolitan Magistrate Court,Saidapet on 23.05.2011 after referring the case as "Mistakeof Fact" on the ground that there was no such occurrencetook place during the date and time as stated by thePetitioner.

The Respondent/contemnor has also filed anadditional affidavit on 30.06.2011, in which he has stated that the Order of this Court was received by him only on22.12.2010 and on the next day he had directed theInspector of Police, J2 Adyar Police Station to forward theCD file pertaining to the case in Crime No. 324 of 2010 tohis file. The learned Counsel has also stated that due tovarious unforeseen programmes and schedules hissubordinate, namely the Inspector of Police and himselfwere not able to focus attention on the day to dayinvestigation. The Respondent has also stated severalreasons for his failure in compliance of the order of thisCourt, but those reasons are not convincing.

Based on the additional affidavit filed by theRespondent/contemnor, the learned Public Prosecutor hassubmitted that the Petitioner wanted to make use the Policeagainst the first wife by giving a false complaint torecover his Innova Car from his first wife, which was infact given by him to his second wife and hence no primafacie case is made out to seize the vehicle, and for thisreason, the Respondent happened to file a negativeinvestigation report before the learned IX MetropolitanMagistrate on 23.05.2011 after referring the case as"Mistake of Fact". Further, the learned Public Prosecutor would submit that the Respondent as well as hissubordinates had conducted an enquiry in a fair, free andimpartial manner in accordance with the law and all themandatory provisions were strictly followed during thecourse of his investigation.

In so far as this contempt petition is concernedthis Court is of view that the submissions made by thelearned Government Advocate (Criminal Side) are extraneous.

As discussed in para No. 2.6, of this order that on01.12.2010 this Court, while passing the order inCrl.O.P. No. 2613 of 2010 has given the following directions;

(1)The Commissioner of Police, Egmore, Chennai wasdirected to transfer the case in Crime No. 324 of 2010from the file of the Inspector of Police, J-2 AdyarPolice Station to the file of the AssistantCommissioner of Police, Adyar (the contemnor herein).

(2)The Assistant Commissioner of Police, Adyar was alsodirected to conduct the investigation in anefficacious and impartial manner and complete the samewithin a period of three weeks and if it seemsnecessary, to seize the vehicle.

It is seen from paragraph No. 9 of the affidavitfiled by the Petitioner that he had met the contemnor on07.01.2011 and handed over the xerox copy of the order ofthis Court and explained the facts and circumstances underwhich the petition was filed. It is also seen from thesame paragraph, that a legal notice dated 09.03.2011 wassaid to have been issued to the contemnor calling upon himto explain as to why he was unable to proceed with theinvestigation and also to explain as to why the vehicle wasnot seized and why the investigation was not completedwithin the stipulated period of three weeks as per theorder of this Court dated 01.12.2010 and made inCrl.O.P. No. 2613 of 2010. It is also seen that the noticewas received by the contemnor on 11.03.2011, as seen in the 22. In his affidavit at paragraph No. 5, he has statedthat as per the direction of this Court, he had receivedthe case diary and took up further investigation and he hadalso visited the place of occurrence, verified the case diary, and examined some of the witnesses as detailedtherein. From the averments of the affidavit filed by thePetitioner as well as the Respondent/contemnor, this Courtis able to see that the Respondent is well aware of theorder of this Court dated 01.12.2010.

That on 21.06.2011, this Court in order to verifythe correctness of the averments of the affidavit filed bythe Respondent/contemnor has directed the Registry of thisCourt to call for the entire records relating to the casein Crime No. 324 of 2010 from the file of the Learned IX Metropolitan Magistrate, Saidapet, Chennai. Accordinglythe records were received by this Court. On verificationof the records, this Court is able to find that thecomplainant has been dated as 24.05.2010. However, itseems to have been registered on 26.05.2010 at 02.00pm., onthe file of J-2, Adyar Police Station in Crime No. 324 of2010 u/s 428, 279, 502(2) of IPC.

The FIR is found to have been reached theMetropolitan Court on 25.05.2010. It is also found thatthe first referred charge sheet has been dated as30.06.2010. But it actually appears to have been filed before the Learned IX Metropolitan Magistrate, Saidapet,Chennai on 21.06.2011 only. The counter foil of the noticeof the referred charge sheet is also found to have beenproduced before the above said Court only on 21.06.2011,though it is dated back to 30.06.2010. The other recordsviz., the statements of the witnesses have also been sentalong with the referred charge sheet only on 21.06.2011,though they are dated back to 26.05.2010.

The petition in Crl.O.P. No. 26138 of 2010 is foundto have been filed by the Petitioner u/s 482Cr.P.C. before this Court on 03.11.2010. It is also foundthat the Petitioner had enclosed a copy of therepresentation to the Commissioner of Police along with theabove said petition. The representation which is found tohave been tagged along with the above said petition hasbeen dated as 26.10.2010. The postal receipt has also beendated as 26.10.2010. It shows that the representation tothe Commissioner of Police, Egmore, Chennai has been madeas early as on 25.06.2010 to transfer the investigation ofthe case in Crime No,324 of 2010. But the petition inCrl.O.P. No. 26138 of 2010 does not have any reference toshow that the Petitioner was served with the notice of referred charge sheet and that he had refused to receivethe notice of referred charge sheet dated 30.06.2010. Ifat all the notice of the referred charge sheet dated30.06.2010, was served on the Petitioner, then definitelythe Petitioner would have stated this fact in his petition. As discussed earlier, though the referred charge sheet isdated as 30.06.2010, it appears to have been filed beforethe Learned IX Metropolitan Magistrate, Saidapet, Chennaionly on 21.06.2011.

Under this circumstance this Court is ofconsidered view that the Inspector of Police attached to J-2 Adyar Police Station has not filed the first referredcharge sheet before the Learned IX Metropolitan Magistrate,Saidapet, Chennai on 30.06.2010. If it is so the seal ofthe Learned IX Metropolitan Magistrate, Saidapet would havebeen affixed on the records on 30.06.2010 itself. Butthough the Respondent/contemnor was given an opportunity toexplain these circumstances, he has misrebly failed toexplain this fact satisfactorily before this Court.

Secondly, on verification of the records, thisCourt is able to find that the Respondent/contemnor is found to have filed the report on 04.05.2011 with regard toalteration of Section of Law. In his report he has statedthat;

The investigating Officer Thiru Selvam,Inspector of Police, J-2, Adyar Police Stationinvestigated the case and filed a final reportbefore the Learned IX Metropolitan MagistrateCourt as per the merits and demerits of the caseand the case was treated as mistake of fact on30.06.2010. J-2, Adyar Police Station FRRC''sNotice No. 2/1010 in Serial No. 0825017 was sent tothe complainant. The final report was filedbefore the IX Metropolitan Magistrate Court,Saidapet, Chennai.

As per the directions of the Hon''ble High Court in Crl.O.P. No. 26138 of 2010 dated 01.12.2010, the case is reopened for further reinvestigation on 03.05.2011.

According to the complaint and the statement ofthe complainant, the Sections 428, 379, 502(2) of IPC wasaltered to Sections 328, 379, 506(2) of IPC. Though thisreport has been dated as 04.05.2011, unfortunately, it appears to have reached the IX Metropolitan Magistrate Court only on 21.06.2011.

Another report of the Respondent/contemnor dated03.05.2011, is also found to have been tagged along withthe records in which it is stated that as per thedirections of the Hon''ble High Court of Madras inCrl.O.P. No. 26138 of 2010 dated 01.12.2010, the case isreopened for further investigation on 03.05.2011. Thoughthis report is also dated as 03.05.2011, it seems to havebeen reached the IX Metropolitan Magistrate Court only on21.06.2011.

It is significant to note here that the order ofthis Court was passed on 01.12.2011 in Crl.O.P. No. 26138 of2010 but as has been seen from the above report theRespondent/contemnor had reopened the case for furtherinvestigation on 03.05.2011 only after 5 months.

On further verification of the records it is foundthat from 03.05.2011 to 23.05.2011, certain witnesses weresaid to have been examined by the Respondent/contemnorwhich includes the Petitioner. On the same date i.e., on 23.05.2011, he had filed a final report referring the caseas mistake of fact. The counter foil of the referredcharge sheet notice dated 23.05.2011 has also been taggedalong with the records. But it is surprise to note thatall the records i.e., final report, referred charge sheetfiled by the Inspector of Police attached to J-2 AdyarPolice Station along with the related records and theother referred charge sheet dated 25.05.2011 filed by theRespondent/contemnor along with the connected records arefound to have reached the Learned IX MetropolitanMagistrate Court only on 21.06.2011.

If these facts are true, the averments of theaffidavit filed by the Respondent/contemnor stating thatthe Inspector of Police Adyar Police Station had filed thefinal report referring the case as mistake of fact on30.06.2010, cannot be true. Further the averments of hisaffidavit stating that he had filed another final reportafter referring the case as mistake of fact on 23.05.2011also may not be correct. If the final reports 1 and 2,were filed before the IX Metropolitan Magistrate Court on30.06.2010 and 23.05.2011 then the Court seal pertaining tothe above referred dates viz., 30.06.2010 and 23.05.2010 would have been affixed. But all the records are found to borne the Court seal pertaining to 21.06.2011.

As rightly submitted by the learned Counsel forthe Petitioner, that the Respondent/contemnor was aware ofthe order of this Court dated 01.12.2010 and made inCrl.O.P. No. 26138 of 2010. But even after the receipt of acopy of the order of this Court, the Respondent/contemnorhas not evinced any interest to regard the order of thisCourt instead it appears that he has deliberately floutedit for the reasons best known to him for which he hasmiserably failed to offer explanation to the satisfactionof this Court.

The Learned Government Advocate (Criminal Side)has fairly admitted that there is delay in complying withthe order of this Court. But he would submit that thereason for the delay is beyond the control of thecontemnor. On the other hand the learned Counsel for thePetitioner would submit that when there is a specific orderdirecting the Respondent/contemnor to conduct theinvestigation in an efficacious and impartial manner and to complete the same within the stipulated period of threeweeks, the question of reopening the case for furtherinvestigation would not arise. In his additionalaffidavit, the Respondent/contemnor has stated that due tovarious unforeseen programmes and schedules he and hissubordinate officials were not able to focus attention onthe day today investigation. He has also submitted thatfrom January 2011 onwards several festivals and programmeswere organised by the Government and that since he being anAssistant Commissioner of Police, the Commissioner ofPolice, Chennai city had directed him to prepare scheduleto monitor the situations and that on account of thesereasons there was a delay in compliance of the order.

As adumbrated supra all those reasons assigned bythe Respondent/contemnor are extraneous and leftunsupported. Viewing from any angle the conduct of theRespondent/contemnor comes under the amplitude of criminalcontempt.

It is also pertinent to note here that whileadvancing his arguments, the learned Counsel for thePetitioner has produced certain photographs in which the Respondent/contemnor is found along with the family membersof the Petitioner on an eve of a birthday celebration of akid. In this connection the learned Counsel for thePetitioner would submit that the Respondent/contemnor ishaving close association with the family members of thePetitioner and on that pretext he was very reluctant ingiving effect to the direction of this Court.

In paragraph No. 3 of his affidavit the Respondent/contemnor has tendered his unconditional apology.

In this connection this Court desires to place onrecord that apology is an act of contrition. Unlessapology is offered at the earliest opportunity and in goodgrace, the apology is offered at the time when thecontemnor finds that the court is going to imposepunishment it ceases to be an apology and becomes an act ofcringing coward. This dictum is held by the apex court in Mulkh Raj Vs. State of Punjab, .

A person who offers a belated apology runs therisk that it may not be accepted for such an apology hardly shows the contriction which is the essence of purging of acontempt. However, a man may have courage of convictionsand may stake his all on proving that he is not in contemptand may take the risk. This principle is laid down in Debabrata Bandopadhyay and Others Vs. The State of West Bengal and Another, .

On coming to instant case on hand theRespondent/contemnor was trying to justify his inaction forgiving effect to the order of this Court dated 01.12.2010by saying that there is neither wilful nor deliberateintention in disobeying the order of this Court and at thesame time he has also tendered unconditional apology sayingthat "however if the Court comes to the conclusion thatcontempt has been committed by him, I once again submit myunconditional apology before this Court."

In this regard this Court would like to place onrecord that it is well settled and self evident that therecannot be both justification and an apology. The twothings are incompatible. Apology is not a weapon ofdefence to purge the guilty of their offence, nor is itintended to operate as universal panacea, but it is intended to be evidence of real contriteness. Thisproposition has been laid down by the Apex Court in M.Y. Shareef and Another Vs. The Hon''ble Judges of The High Court of Nagpur and Others, .

On analysing the related facts and circumstances,this Court is of view that the action of the contemnor isdeliberate and wilful as such the unconditional apologytendered by the Respondent/contemnor cannot be accepted asit cannot be a "mantra" to pray exemption in as much aswhen there is no justification of such.

The Respondent/contemnor is a responsible officerthat too in the cadre of Assistant Commissioner of Police. He is having responsibility towards his department as wellas towards the society. The rule of law is the foundationof the democratic society. The judiciary is the guardianof the rule of law. If the orders of the court weredisobeyed with impunity by those who owe an obligation tothe society to preserve the rule or law, not only wouldindividual litigants suffer, the whole administration ofjustice would be brought into disrepute.

As discussed in the foregoing paragraphs, it isestablished that the conduct of the Respondent/contemnor isamounting to criminal contempt of Court. In thisconnection this Court would say that contempt of court isdisobedience to the Court, by acting in opposition to theauthority, justice and dignity thereof. It signifies awilful disregard or disobedience of the court''s order, forit acts in disobedience to the authority. The act ofdisobedience of the Respondent/contemnor is calculated toundermine public respect for the superior court andjeopardise the preservation of law and order

In so far as the instant case on hand is concernedthis Court put faith in the professional honour of thePolice machinery of the State and trusted them to carry outan expeditious investigation into the serious complaints ofthe Petitioner. In this connection a question is arisenas to whether that trust was really justified. This Courtdoes not see any reason to accept the explanations offeredby the Respondent/contemnor and therefore, comes to theconclusion that he is liable to be punished, under Section12 of Contempt of Courts Act, 1971 as there is wilful andconscious violation of the order of this Court dated 01.12.2010. Since the Respondent/contemnor has beenofficiating as Assistant Commissioner of Police, if anysevere punishment either sentencing of imprisonment orimposing of fine, is awarded, then it will affect hisfuture carrier. At the same time this Court must takeutmost care to see that the temple of justice does notcrack from outside.

As rightly decided in Tarak Singh and Another Vs. Jyoti Basu and Others, like any other organ ofthe State the judiciary is also manned by human beings, butthe function of judiciary is distinctly different fromother organs of the State, in the sense its function isdivine. After every knock at all the doors fail, peopleapproach the judiciary as the last resort. It is the onlytemple worshipped by every citizen of this nation,regardless of religion, caste, sex or place of birth. While awarding the sentence on the contemnor, the Courtdoes so to uphold the majesty of law.

Keeping in view of the official status of theRespondent/contemnor and other circumstances, this Courthas come to the conclusion that he is liable to be punished u/s 12 of the Contempt of Courts Act as he is found guilty of contempt.

In the result the Respondent/contemnor is found guilty of contempt and hence, he is awarded with cesure. With the above observation, this contempt petition is disposed of.