Robkar vs P.S.Gill

Gandhi J.

These contempt proceedings emanate from a Habeas Corpus No. 32/1996, presented on 09,03,1996 by the High Court Bar Association, seeking directions against the Union of India and State of Jammu and Kashmir to produce Mr. Jalil Indrabi, Advocate, allegedly picked up on 08.03.1996 by some personnel of Rashtriya Rifles while he was driving towards his home.

The facts giving rise to the initiation of contempt proceedings are that during the course of proceedings, the learned Single Judge, being not satisfied with the pace and progress of the investigation by the State authorities and the matter having assumed great significance of the alleged abduction of the bar member, directed, by an interim order on 18.03.1996, that the Inspector General of Police Kashmir Zone shall nominate an Investigating Team to be headed by either an officer of the rank of Dy. I.G.or a Sr. S.P. associated with two or more officers none of whom shall be below the rank of Dy. S.P and that the team shall start investigation in the right earnest and shall report to the court the result of investigation.

Pursuant to the directions of the learned Single Judge, under order No. 78/ 1996 dated 18.03.1996, the I.G.P. constituted the special investigating Team (SIT) headed by Mr. S.K.Mishra Sr. S.P.Srinagar to Investigate the case HR No. 139/1996 under sections 364 and 365 R.P.C, registered in P/S Sadar Srinagar. During investigation, Mr. Indrabi is reported to have been killed.

During the course of proceedings, subsequently, the learned Single Judge vide its order dt. 02.04.1996 directed that ""till further order from this court, the Special Investigating Team is directed not to take any instructions from anybody in the Government pertaining to investigation of the

case. The instructions shall be taken only from this court and no final conclusion shall be arrived at by the investigating team without first making a report to this court. The case shall not be closed on any count without specific directions/permission of this court. The learned Single Judge further sought reaction of the State Government whether the Government is contemplating institution of any judicial inquiry into the whole affair.

The learned Single Judge observed that since the matter involved very important and substantial questions, it is required to be listed before a Division Bench of this court. This is how the matter came before the Division Bench,

Learned Advocate General on 10,04.1996 made a statement before the court that the Government has no intention of appointing any judicial inquiry to probe into the alleged killing of Mr. Indrabi Advocate and has full faith in this court which is monitoring the investigation.

While the special investigating team was investigating into the matter and the progress of investigation, being found unsatisfactory and in view of the sensitivity of the matter, the Court wanted to examine the Head of Special Investigating Team in Chamber in presence of the learned Advocate General and while examining the Special Investigating Team what transpired between the court and the team is known only to the participants.

The cause for the initiation of contempt proceedings has arisen by an action of the contemner I.G.P who, without prior permission of the court, wanted to interfere with the investigating team and to that affect under an order No. 164/1996 dated 05.06.1996 rescinded the order dt.

18.03.1996, passed pursuant to the direction of the learned Single Judge, and constituted a fresh team to take up the investigation which a direction to the team to submit regular progress to him through S.P.Crime Branch Kashmir. This action was brought to our notice by the Registry of the Court to whom a communication to that effect was addressed by the contemner that the team stands superseded and substituted. Taking notice of the interim order passed in the proceedings that the Special Investigating Team will not take any instruction from anybody in the Government and shall take instructions only from this court, we were confronted with a situation were prima facie the action of the respondents contemners amounts to interference with the administration of justice, majesty of law and the dignity of Court. The Advocate General, while appearing in the court on 14.06.1936, when confronted with this situation, submitted that in his view also order passed by the I.G.P is bad order but had not been passed with any deliberate intention and sought the permission of the court to rescind the order. We observed that while the order was being issued, no permission was sought and when the order was required to be rescinded, request for permission is made to the court.

We set aside the order dt. 05.06.1996 superseding the earlier team and directed the Sr. S.P. Mr Mishra to go ahead with the investigation in accordance with the direction given by this court earlier and directed the Addl. Registrar of the Court to frame a 'RULE' against the I.G.P Mr. P.S.

Gill and Sr. S.P. Mr. S.K. Mishra. The rule was framed and served upon the contemners.

The respondents contemners have filed the statements of facts as directed by the court, and before narrating the circumstances leading to the substitution of earlier team, in first para of the reply, the contemners tendered unconditional, unqualified, frank and sincere apology with all humilities and sincerity expressing regrets of action taken and placed themselves at the mercy of the court. Later on, on next date of hearing, the respondents withdrew the statements of facts/reply and opted to tender in unequivocal terms the unconditional apology placing at the mercy of the court, praying for acceptance of the apology.

Because of these circumstances we have to dilate upon the situation as to whether a case for contempt is made out.

It is not disputed that the investigating team was directed by an order of the court not to take any instructions from anybody in the Government except for this court and no final conclusion shall be arrived at without first making a report to this court. The action of the respondentcontemner IGP rescinding the order dt. 8.3.1996 and constituting a fresh team amounts to interference in the investigation being monitored by the court. The only reason the cause contained in the order dt. 05.06.1996 for constituting fresh team is that he has some commitments for election and law and order duty. This, on the face of it, factually is incorrect. The order is dated 05.06.1996 while holding of elections in the State of J&K were accomplished by 30th of May 1996. This factual aspect is negation of his reason which also puts the conduct of the contemners under cloud. Not only this, the contemner IGP cannot wriggle himself out as the has said in the order that the investigation will be conducted and regular progress will be submitted to his office through S.P.Crime Kashmir which is a direct interference and violation of the court orders while the respondents are consciously aware that the team is appointed pursuant to the order of the court for the purposes of investigation of FIR No. 139/1996 of P/S Sadar Srinagar and to the court is monitoring the investigation.

Adverting to the conduct of the contemners while they were given opportunity to file statements of facts to the rule framed against them, before explaining their position that the order dt. 05.06.1996 has been passed in good faith to accelerate the investigation and to achieve immediate results, the contemners at the threshold have tendered unconditional frank and unqualified apology, placing themselves at the mercy of the court.

Now the question which arises of consideration is as to whether, under these circumstances, the contemners should be punished or their apology should be accepted.

In order to treat an apology acceptable, we have to see whether the apology is unconditional, bona fide, voluntary and indicative remorse or contrition and tendered at the earliest opportunity. An apology merely to protect against the rigors of law is no apology. It is intended to be an evidence of real contrite ness and cannot be used as a weapon of defense by the contemners to purge the guilt. It should be consciousness of a wrong done, of an injury inflicted and the earnest desire to make such reparation as lies in the wrongdoer's power. There cannot be both justification and apology.

To appreciate as to whether the apology tendered is voluntary, an act of contrition and indicative of remorse, we have observed in the court the conduct of the contemners. While the action of the respondents giving rise to these contempt proceedings was brought to the notice of the court and put to the learned Advocate of the respondents, he fairly and bonafide tendered the feeling of remorse on behalf of the respondents and sought permission to withdraw the order. Again when the contemners respondents filed the statement of fact they in first paragraph of their reply at the very outset have tendered unconditional and unqualified apology with humility at their command and sincerely regretted the action and craved the indulgence of the court by the placing themselves at the mercy of the court. Not only that, but also while the contemners were asked to take a stand whether they want to contest or tender apology, the respondents opted to tender unconditional and unqualified apology. This conduct of the respondents exhibits that the respondents have realised that the action taken by constituting a fresh team is a wrong committed by them and tendering of an unconditional apology is indicative of outpouring of their hearts moved by a genuine feeling of remorse.

The learned counsel for the respondents have cited AIR 1976 S.C. page 994 and AIR 1983 S.C. page 508 where their Lordships of Supreme Court have accepted even an unqualified apology tendered by the contemners.

The apology tendered at the earliest stage and placing themselves at the mercy of the court for the aforesaid reasons can be safely said to be bonafide and not used to purge the guilt. A bonafide apology tendered can be accepted where the court is satisfied. Section 12 of the Contempt of Courts Act, 1971 and Explanation attached there to deals with the proposition at hands. It reads,

Punishment for contempt of Court(1) Save as otherwise expressly provided in this Act or In any other law, a contempt of court may be punished with simple Imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:

Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

Explanation. An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

We have seen that the apology tendered is unconditional and indicative of remorse and contrition and the respondents have realised that they have committed the mistakes and without contesting their action have placed themselves at the mercy of the court. In these circumstances, we do not see any reason and are not satisfied to turn down and reject the apology and punish the contemners.

For the foregoing reasons, we have come to the conclusion that the apology tendered is bona fide, voluntary and unconditional and it is a fit case where the respondents need not be punished and their apology should be accepted.

We, accordingly, accept the apology tendered by the respondents and discharge the 'rule' issued against them.

Srinagar 271296

Per Nazki J.

While agreeing with the conclusions drawn by brother Gandhi J. in this matter, I would like to add a few lines. The facts have been revealed in the judgment of Justice Gandhi, there is no need to repeat them. The power of contempt by the Courts has been constantly used sparingly, because it has never been the Intention of the Courts to punish people to show the majesty of law, but it has always been the concern of the Courts that there should be nobody above the law and everybody, howsoever high he may be, should submit to the orders of the Court. The power of contempt has remained with this Court right from 1928, when this Court was established, and this Court continued with this power even after promulgation of the Constitution after the independence. Lord Denning in his famous book "What next in the Law" has very lucidly and correctly dealt with the role of the Judges. The Constitution of India as well as the State Constitution makes Courts the last umpires and unless their directions are carried out, the whole purpose for which the Constitution has been promulgated will get wasted. I would quota full para under the headings "The Judges Themselves":

There remains the most touchy question of all. May not the Judges themselves sometimes abuse or misuse their power? It is their duty to administer and apply the law of the land. If they should divert it or depart from it and do so knowingly they themselves would be guilty of misuse of

power. So we come up against Juvenale's question, 'Sed quiscustodiet ipsos custodes? '(But who is to guard the guards themselves?) That question was asked in the United States at the time of President Roosevelt's New Deal in 1935. It may be asked here again before long. In theory the Judges of the Higher echelon are appointed by Her Majesty tile Queen; but in practice by the prime Minister, who in turn looks to the lord Chancellor. Suppose a future Prime Minister should seek to pack the Bench wi1h judges of his extreme political colour. Would they be tools in his hand? To that I answer 'No'. Every judge on his appointment discards all politics and all prejudices. You need have no fear. The judges of England have always in the past and always will be vigilant in guarding our freedoms. Someone must be trusted. Let it be the judges.

The statement made by Lord Denning Is as true about Judges of England as of Judges in India.

The Judges constitionally in this country have the last word and people have to trust us. There is no alternative but to trust us, in order to have an orderly society. In the present case, the directions of this Court have been violated in such a manner that I have yet to see in my judicial career, and we are not powerless to punish the guilty. But, at the same time, in order to maintain majesty and dignity, Courts always restrain themselves in punishing people who commit contempt. In this case, the contemners have placed themselves at the mercy of the Court and tendered unqualified apology, the only question that remains to be settled is whether the apology is to be accepted or not, because seeking an unconditional apology would mean the respondent's admission of being in contempt of this Court.

Now coming to the question of acceptance or rejection of the apology, this Court will be guided by the guidelines laid down by the Supreme Court in cases reported in AIR 1969 SC 189 and AIR 1972 SC 1197. In order to obtain a favourable order from the Court, a contemner must apologise at the earliest opportunity, and a person who offers a belated apology runs the risk that his apology may be rejected. Supreme Court has held that apology is an act of contrition and if it is not offered in good grace and at earliest opportunity, the apology becomes shorn of penitence. In this case, we have found that much time was not lost by the respondents in tendering the apology. Therefore, we accept the apology, discharge the rule, but would like to sound a word of caution for the respondents who are holding high offices in the State's police hierarchy. Police is meant for maintaining law and order. They are the persons through whom this Court executes its orders. They are in fact a part of the judicial system, in any society which is governed by rule of law. Police Department as such is a limb of Judiciary and if they start flouting the orders of the Court, then there will be anarchy. It is in each and every case, where an order is sought to be implemented by this Court, that we have to direct the Police personnel of the State to execute our orders. Therefore, they must be better than others in obeying the directions of this Court, and any lapse on their part will be seen altogether differently than a lapse on the part of any other funcationary of the State.