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Judgment
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 C8.03.1996
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 more officers none of whom shall be below the
rank of Dy. S.P. and that the team shall start investigation in 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 FIR No. 139/2996 under sections 364 and 365 R.P.C.,
registered in P/S Sadar Srinagar. Druing 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 orders 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 contemnor I.G.P. who without prior permission of the court
wanted to interfere with the investigating team and to that effect 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 with 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 contemnor 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 where prima facie the action of the respondents contemnors
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 14.06.1996 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 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 contemnors.
The respondents contemnors 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 condemners 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 with drew 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 from this court and no final conclusion shall be arrived at without first making a report to this court. The action of the respondentcontemnor
IGP rescinding the order dt. 03.1996 and constituting a fresh team amounts to interference in the investigation being monitored by the court. The
only reason and 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 contemnors under cloud. Not
only this, the contemnor IGP cannot wriggle himself out as he 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 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. 051.06.1996 has been passed in good faith to accelerate the investigation and to achieve immediate
results, the contemnors at the threshold have tendered unconditional, frank and unqualified apology, placing themselves at the mercy of the court.
Now the question which arises for consideration is as to whether, under these circumstances, the contemnors 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 of remorse or
contrition and tendered at the earliest opportunity. An apology merely to protect against the rig ours of law is no apology. It is intended to be an
evidence of real contriteness and cannot be used as a weapon of defense by the contemnors 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 liea 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 contemnors. White 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 respondent, he fairly and bonafide tendered the feeling of remorse on behalf of the respondents and sught
permission to withdraw the order. Again when the contemnors respondents filed the statement of facts 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 placing themselves at the mercy of the court. No only that, but also while the contemnors 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 genuie 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 gendered by the condemners.
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 aplogy tendered can be accepted where the court is satisfied. Section 12 of the Contempt of
Courts Act, 1971 and Explanation attached thereto deals with the proposition at hands. It reads,
12 Punishment for contempt of Court(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court maybe
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 mistake and without contesting their action have placed themselves at the mercy of the court. In these circumstances, we do not see
any reason and not satisfied to turn down and reject the apology and punish the contemnors.
For the foregoing reasons we have come to the conclusion that the apology tendered is bona fide, voluntary and unconditional and its 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.
BILALNAZKI JUSTICE
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 laways 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 quote full para under the heading. ""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 knowinglythey themselves would be guilty of misuse of
power. So we come up against Juvenal's question, 'Sed quis custodies ipsos custodies ? '(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 the 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 with judges of his extreme political co lour Would they be tools in his
hand? To that I answer 'No' Every judge on his appointment discards all polities and all prejudices. You need have no fear. The judges of England
have laways 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 constitutionally 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, be cause seeking an unconditional apology
would meanthe respondent 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 SC189 and AIR 1972 SC 1197. In order to obtain a favorable order from the Court, a contemner must apologies
at the earliest opportunity, and a person who offers a deleted 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 respondent 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 policy hierarchy. Police is meant for
maintaining law and order. They are the persons through whom this court executes its orders. They are in fact part of the judicial system, in any
society which is governed by rule of law. Police Department as such 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 functionary of the
State.
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