2002 Supreme(Guj) 81

Gujarat High Court
Judgename :B.C.PATEL, D.M.Dharmadhikari, J.N.Bhatt, R.K.Abichandani, Y.B.BHATT
R.P.VAGHELA - Appellant
Versus
STATE - Respondent
CRI.M.A. 6572 of 2000
Decided On : 02/01/2002

Headnote:(a) Contempt of Courts Act, 1971 (Central Act 70 of 1971) — Secs. 2(c)(iii), 10 & 15(2) — Constitution of India, 1950 — Arts. 215, 21, 14, 141 & 144 — Power of High Court — Use of handcuffs and iron fetters for under trial prisoners and convicts — Police or jail personnel carrying them from jail to Court and vice versa — No permission obtained by Magistrate or trial Court — Power of High Court to initiate contempt proceedings — Letter addressed to Supreme Court by Joint District & Addl. Session Judge, Bhavnagar (Gujarat) — Constable, Supdt. of Police, Director General of Police and Home Secretary of Gujarat State were alleged as contemners, as they were violating directions of Supreme Court — Held, High Court derives powers to punish contempts of subordinate Courts under aforesaid Secs. 10 & 15(2) and Art. 215.

       The Contempt of Courts Act, defines `civil and `criminal contempt . The definition of criminal contempt in Sec. 2(c) (iii) includes any act which interferes, or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. An act of the police and the concerned authorities or the police which tend to interfere with the administration of justice or which amount to lowering down the authority of the Court is well covered within the definition of criminal contempt in Sec. 2(c) (iii). The acts complained of thus constitute criminal contempt under Sec. 2(c) (iii) as it has tendency to interfere and obstruct the administration of justice and it is also a civil contempt in the sense it disobeys the judgment and directions made by the Supreme Court.

       [Para 16]

       It derives power to punish contempt of subordinate Courts under Secs. 10 and 15(2) of the Contempt of Courts Act. The present case is both of criminal and civil contempt. Supreme Court undoubtedly has jurisdiction to deal with the matter, but since, the acts complained of amount to contempt of trial Court, which was not approached for permission before putting fetters, it is a criminal contempt in the sense that authority of the Court as such has been looked down upon or tried to be disregarded. The High Court certainly has power under Sub-sec. (2) of Sec. 15, on a report of criminal contempt by subordinate Court to take cognizance of the contempt and punish the offender if the contempt is held to have been proved. Court is not prepared to accept the arguments advanced on behalf of the contemners that the alleged contempt of handcuffing the under trial in transit from jail to Court is not a contempt of the subordinate Court as it was not committed in Court and if at all proved it may be held to be mere breach of the directions of the Supreme Court which alone can take cognizance. As Court has held above, the alleged act can be seen as an affront to the judicial system as a whole and the law declared by the Supreme Court. It is an act on behalf of the police authority with an attitude we do not care. It is this cavalier fashion and contemptuous attitude of not obeying the law with regard to judicial administration that the act has to be viewed as a contempt of Court in general, that is of the judicial system as such. It is definitely a contempt of Court of the trial Court as in the course of bringing an under trial in judicial custody the permission of the trial Court was not obtained. It is not merely a violation of law laid down by the Supreme Court but an act of open defiance of the authority of the Court and the rule of law. Such criminal contempt of the subordinate Court can be dealt with by the High Court on the report of the former in accordance with Sec. 15(2) of the Contempt of Courts Act. This Court should not, therefore, feel inhibited by the fact that the matter had not been sent to back to this Court by any order on the judicial side of the Supreme Court and it is only on administrative side that the Registrar General of Supreme Court had sent back the papers to us. In our opinion, the perception of law of the learned trial Judge in treating the contempt to be one of Supreme Court is also not decisive when Court has taken a view that the acts complained of by the police party and the police administration of Bhavnagar of the State, are acts of defiance of the rule of law and judicial administration. The contempt power is given to this Court by the Constitution under Art. 215 and by the statute. The purpose is maintaining dignity and authority of the Court, unity and integrity of the administration of justice and to preserve peoples faith in the system of administration of justice. The other constitutional objective is to maintain and preserve the rule of law by upholding and protecting the majesty of the Court. Any action intended to erode the faith of the people in the judicial administration should be viewed as a contempt with power to the Court to take all necessary steps to protect the purity and ensure adherence of the judicial system. Whenever the contempt jurisdiction is exercised, it is not for the purpose of protecting or defending a particular Judge or Magistrate. The purpose is to defend, protect and preserve the independent authority of the Court. An act may amount to a contempt of a particular Court. The same act may also amount to contempt of the Court as an institution. Looked at from both the angles, it is the High Court which is fully empowered to deal with the same.

       [Para 17]

       Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt may be initiated in any High Court of the country having territorial jurisdiction over the matter.

       [Para 18]

       This Court as constitutional Court under Art. 215 can take cognizance of the alleged contempt and the repeated acts of such contemptuous conduct of the police administration at Bhavnagar as contempt of the judicial institution as such. Our conclusion also is that undoubtedly it is a criminal contempt of subordinate Court as the act has tendency to obstruct and interfere in the administration of justice by using handcuffs in a routine manner and thus flagrantly violating the rule of law. This Court is, therefore, competent to deal with the criminal contempt of subordinate Court on a reference made under Sec. 15(2) of the Contempt of Courts Act may be that the reference has been made by the trial Judge not directly to us, but has been received through the Supreme Court on administrative side.

       [Para 21]

       (b) Contempt of Courts Act, 1971 (Central Act 70 of 1971) — Sec. 20 — Limitation for actions for contempt — Either on its own motion or otherwise — High Court can initiate proceedings within one year — Proceedings deemed to be initiated from date of reference — Contempt made on 24.1.2000 — Reference made by concerned subordinate Court to High Court, though addressed to Supreme Court, on 11.2.2000 — Held, in case of criminal contempt of subordinate Courts, limitation period is one year from date of reference — Hence, the present contempt proceedings are within limitation.

       Limitation for Action for Contempt. — No Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.

       [Para 24]

       The alleged act of handcuffing the under trial was committed on 24.01.2000 and reference by the trial Judge was made to the Supreme Court on 11.02.2000. Notices in the contempt proceedings were, however, issued after the orders were made for constituting the Larger Bench. The notices were issued on 07.09.2001 to the contemners. The question is when the period of limitation began and when it expired.

       Court must now proceed to analyse and construe Sec. 20 independently. A plain reading thereof would indicate that the legislature drew a clear line of distinction between proceedings for contempt initiated by the Court on its own motion, and those not so done. Suo motu action by the High Court is thus clearly a class by itself. Consequently the statute in express terms refers to these two classes separately namely, any proceedings for contempt on Courts own motion, and proceedings for contempt initiated "otherwise". The use of the word "otherwise" is significant and indeed provides the clue to be the true interpretation of Sec. 20. Therefore, initiation of contempt proceedings otherwise than on Courts own motion would include within its sweep a motion by the Advocate General, a reference by a subordinate Court to the High Court to take action for contempt and an application before the Advocate General seeking his consent by any other person under Sec. 15 and lastly in cases of Civil contempt the motion by a private litigant directly in the Court.

       To finally conclude it must be held that terminus a quo for limitation begins under Sec. 20 of the Act on the date on which the contempt is alleged to have been committed. The terminus as quem in case of criminal contempt would be necessarily vary and be related to the modes of taking cognizance provided for in Sec. 15. In cases where it is initiated on the Courts own motion it would necessarily be from the issuance of the notice for contempt by the Court. In case of a motion by the Advocate General under Sec. 15(1)(a), the proceedings would initiate from the date of the filing of such a motion in the High Court. Where any other person moves the Advocate General for his consent in writing as prescribed in Sec. 15(1)(b), the initiation of proceeding would be with effect from the date of such application. Lastly, in cases of criminal contempt of a subordinate Court on a reference made by it the proceedings must be deemed to be initiated from the date when such reference is made.

       [Para 25]

       In the present case, in our opinion, the reference is made by the subordinate Court to this Court although addressed to the Supreme Court on 11.02.2000, which is well within one year from the date of the alleged commission of contempt on 24.1.2000.

       In cases of criminal contempt of a subordinate Court on a reference made by it the proceedings must be deemed to be initiated from the date when such a reference is made.

       [Para 26]

       In cases of criminal contempt of subordinate courts, the initiation of proceedings on reference by subordinate Court should be within one year from the alleged date of contempt. Therefore, the ground of limitation raised on behalf of the contemners cannot be accepted.

       [Para 28]

       (c) Contempt of Courts Act, 1971 (Central Act 70 of 1971) — Secs. 2(c)(iii), 10 & 15(2) — Constitution of India, 1950 — Arts. 215, 21, 14, 141 & 144 — Gravity of contempt and punishment — No permission of Magistrate or trial Court obtained to handcuff — Accused was charged with serious and heinous offence — Demeanour and conduct of accused — Possibility to escape — Aggressive personality of accused — Compelling circumstances to handcuff him — Held, alleged contemnors not deliberately intended to defy orders of Supreme Court or of concerned subordinate trial Court — Explanations of contemnors plausible and acceptable — Unconditional apologies and affidavits showed their attitude of respect for the Court. Hence, contemnors were discharged from contempt notices.

       Lastly remains the question of the gravity of contempt and punishment. The Constable who handcuffed the under trial, at the first opportunity, in his explanation before the trial Judge admitted the fact that he had handcuffed the under trial during transit and he was aware of the legal directions issued by the Police Department on the decisions of the Supreme Court. His explanation given on 05.12.2000 is that looking to the nature of serious offence for which the accused was being tried and looking to his demeanour, conduct and the possibility of his escape he though it necessary to handcuff him during transit from jail to the Court. In his affidavit after issuance of notice by us, he reiterated the same fact and stated that although he was accompanied by one another police Constable Shri Arjanbhai, but keeping in view the fact of the aggressive personality of the accused and the seriousness of the offence for which he was being tried, he considered it proper and necessary to produce him in safe custody by handcuffing him.

       [Para 29]

       If the escort party resorts to handcuffing during transit, it has to justify its action before the concerned Court. There is no complete restraint on the police escort party not to use handcuffs in all circumstances. In the instant case, the Constable has given an explanation that although there were two Constable, but the accused was charged for a serious offence and his conduct and demeanour was such that they considered it proper to handcuff him during transit so that he might not escape. In these circumstances, it is not possible for us to hold that the Constable, namely, Samantbhai Lakhabhai Chudasama, deliberately intended to defy the orders of the Supreme Court or committed any contempt of the subordinate Court before whom he produced the under trial.

       [Para 30]

       The explanation offered by him appears to be plausible and acceptable. In the affidavits filed by the Director General of Police and Superintendent of Police, it is reported that there has been large number of cases of under trials escaping from the police custody and many times it becomes necessary to use handcuffs or fetters in the interest of administration of criminal justice system. It is, therefore, necessary that in each given case, when a complaint is made of putting fetters, the concerned Court is required to apply its mind to the explanation offered and see whether such an explanation is justified or it is an excuse to avoid penal action. In the present case, Court does not find that the explanation offered at the first available opportunity is either false or concocted.

       [Para 31]

       For the aforesaid reasons, Court finds no ground to hold that the above named Constable, who is the alleged Contemner before us, has committed any contempt which deserves to be punished.

       [Para 32]

       Affidavits have also been filed by the then District Superintendent of Police, Bhavnagar and Director General of Police-cum-Inspector General of Police. Along with their affidavits they have annexed various Circulars which they have issued after the decision of Supreme Court instructing the police escort parties to observe the law laid down by the Supreme Court in use of handcuffs and iron fetters on the under trial prisoners and convicts. It is also stated that periodically, in training courses, the Police Constables and staff are educated in the criminal justice delivery system and they are apprised of their powers and duties as explained by the Supreme Court to protect the human and fundamental right of citizens. Court does not think that any further general directions, therefore, are required to be issued by us in this regard. Court will, however, only say that it would be better if, to give full effect to directions of Supreme Court in various cases, necessary statutory instructions and regulations be incorporated in the Police Manual, so that it becomes a statutory obligation of the police authorities to follow the various directions given by the Supreme Court.

       [Para 33]

       Having held that the Constable above named who was one of the escort party is not guilty of contempt, there is no question of imposition of punishment. For violation of service rules or instructions, in the affidavits of Senior Officers or the Police Department, it has been informed that after reference of the subordinate Court, a departmental action was taken against the Constable and a minor penalty of withholding increment has already been imposed. As held by Court above no case is made out for taking punitive action against any of the contemners.

       [Para 34]

       Contemnors have tendered unconditional apologies, which have been recorded in their affidavits. This show their attitude of respect for the Court.

       [Para 35]