Gauri Shankar v. State Of Bihar — 1971 DIGILAW 140 (PAT)

Judgment 1. This proceeding has been started for contempt of an order of this Court passed in Criminal Miscellaneous No. 1427 of 1971. This proceeding was started at the instance of Gauri Shankar Jain, petitioner No. 2 in that case, against the alleged contemner. Sheo Kumar Mishra, Officer-in-charge of Rajmahal Police Station in the district of Santhal Parganas. Some facts may be briefly stated in order to appreciate the point at issue. 2. It is said that Gauri Shanker Jain (hereinafter referred to as "the petitioner") and other members of his family had taken a mining lease and were working the mine near Rajmahal. It is further alleged that by working this mine they were likely to damage some temple at Kanhaiya Asthan standing on the upper surface of the land and so there was some agitation by the public. The Resident Magistrate (that is the Sub-divisional Magistrate, who is designated as such at Rajmahal) visited the spot on 10th June, 1971, and there he set up one Khublal Mandal to lodge a first information report before the Police under Sections 295, 297, 336 and 448 of the Indian Penal Code. This first information was lodged at 16.15 hours. It is further said on behalf of the petitioner that the Resident Magistrate was very much annoyed with the petitioners family and so on that very date he issued a warrant of arrest against the petitioner as also against some other persons named in the first information report. It may be mentioned that in the month of June there was morning sitting of the Courts. Any way, these warrants of arrest were taken to the petitioner and two other members of his family on the next day at about 8.30 a. m. The petitioner and the other two members of his family were not then present in the house, and simultaneously processes under Sections 87 and 88 of the Code of Criminal Procedure were executed. Annexure "4" to Criminal Miscellaneous Case No. 1427 of 1971 shows that for one hour, that is, from 8.30 to 9.30 a. m. the house of the petitioner was searched. On 12th June, 1971, the officer-in-charge of Rajmahal P. S. (hereinafter referred to as "the Officer-in-charge) seized many movables, such as, sugar, personal effects and other articles, and took them to the police-station. On 12th June, 1971, the officer-in-charge of Rajmahal P. S. (hereinafter referred to as "the Officer-in-charge) seized many movables, such as, sugar, personal effects and other articles, and took them to the police-station. He also sealed two rooms in which the ladies used to reside, besides godown etc. (vide annexure "4/a"). On 20th June, 1971, he again seized a number of articles, including, ceiling fan etc., and took them to the thana. He also took away two boxes alleged to contain valuables, and those boxes are said to belong to the ladies of the family. It is admitted on behalf of the petitioner that he and other members of his family were not present in their house on that occasion and they had gone to attend some barat party. One Manindra Nath Guha (petitioner No. 1 in Criminal Miscellaneous case No. 1427 of 1971), who was acting as manager or care-taker of the mine, informed the petitioner; and when they came back, they came to know as to what had happened in their absence. Manindra Nath Guha offered bail which was allowed, but a great delay was made in verifying the security bond. Thereafter, the petitioner came up to this Court and prayed for bail and release of the seized articles. This Court heard the matter and by its order dated the 29th July, 1971 directed that the petitioner may surrender before the learned Magistrate and thereafter he shall be released forthwith on his furnishing cash security of rupees two thousand. It was further ordered that the movables concerning which a list had been made should at once be handed over to the petitioner and the seals will be removed from the ladies apartments and the house should be made available for their residence. This order was communicated to the Court below through a special peon at the cost of the petitioner. This order was received by a Munsif-Magistrate, on 31st July, 1971. Thereafter the learned Munsif-Magistrate directed release of the petitioner after he deposited the cash security of rupees two thousand. He further directed the officer-in-charge to release the properties attached in the case as also to remove the seals from the rooms and allow the petitioner and other members of his family to live in that house. Thereafter the learned Munsif-Magistrate directed release of the petitioner after he deposited the cash security of rupees two thousand. He further directed the officer-in-charge to release the properties attached in the case as also to remove the seals from the rooms and allow the petitioner and other members of his family to live in that house. On receipt of this direction from the learned Munsif Magistrate, the Officer-in-charge did not carry it out, but, instead, he wrote a letter addressed to the Resident Magistrate expressing some doubt about the order of this Court, namely, that, as the articles belonged to three persons, namely Gauri Shanker, his father Madan Lal, and his uncle, Mani Lal, whether it would be proper to release the properties in favour of petitioner Gauri Shankar alone. The Officer-in-charge, however, did not stop at that. In this letter, he further suggested that the seized articles should be auction-sold and for this purpose a Magistrate should be deputed and the seals of the two rooms should be broken in presence of that Magistrate. On 2nd August, 1971, the other two accused Madan Lal and Mani Lal, surrendered and got themselves released on a bail of rupees two thousand each in cash and they prayed that the articles which had been seized should be released forthwith. They further prayed that a proceeding for contempt of Court should be started against the officer-in-charge for disobeying the order of this Court also of the learned Munsif-Magistrate. Perhaps, this matter was not pursued there, because the next order shows that the Munsif-Magistrate directed release of the properties in favour of these persons (vide Annexure "7"). Thereafter, some properties were released on the 3rd and the remaining on the 4th August 1971. The two boxes which had been seized and sealed were, however, not taken back by these presons because they suspected that the valuable things had been removed from them, and they stated that they would take open delivery of the boxes. 3. In the whole history of this case, two things prominently strike me. The first is that there was absolutely no justification for the issue of warrants of arrest as well as processes under Sections 87 and 88 of the Code of Criminal Procedure Section 87 is resorted to in case of absconders. 3. In the whole history of this case, two things prominently strike me. The first is that there was absolutely no justification for the issue of warrants of arrest as well as processes under Sections 87 and 88 of the Code of Criminal Procedure Section 87 is resorted to in case of absconders. If a person is found to be absconding or avoiding processes of the Court then such a drastic step has to be taken. If a Police-Officer goes to the house and does not find the occupant there it cannot necessarily be said that that man was absconding. "Absconding" does not mean absence on one day, but it means remaining out for some days. Any way, to me it appears to be a case of vindictiveness on the part of the Resident Magistrate as well as the officer-in-charge. It is to be further noted that on the 10th June, 1971 it could not be said that none of the three accused pearsons would be met at their house and perhaps, in anticipation the processes had been signed and issued. 4. The second thing is that, when the learned Munsif-Magistrate, conveyed the order of this Court to the officer-in-charge, who had seized the articles, to release them forthwith, there was absolutely no justification for him to make any further query in the matter. He had to obey the order as it was. There is absolutely no ambiguity in the order of this Court or of the Munsif-Magistrate. In the order of this Court dated 29th July, 1971. It was stated as follows :- "............... The movables concerning which a list has been made should at once be handed over to petitioner No. 2 and the seals will be removed from the ladies apartment of the house and the house should be made available for their residence." So, this Court clearly meant that all the articles seized, whether they belonged to one or all the accused, should be handed over to the petitioner Gauri shankar, concerning which a list had been made. It is clear that the list was not of different persons differently, but one list was made for all the articles which had been seized from one house in which three persons resided. So, there was absolutely no justification for making any further reference. The order was not vague. It is clear that the list was not of different persons differently, but one list was made for all the articles which had been seized from one house in which three persons resided. So, there was absolutely no justification for making any further reference. The order was not vague. The learned Munsif-Magistrate was also very clear in his order. He referred to the order in Hindi and directed the officer-in-charge to release all the properties which had been seized or attached in the case to the accused persons, after taking a receipt from the petitioner. I can very well understand that the officer-in-charge might have some misgivings in his mind that the properties belonged to three persons of the same family and so whether they could be released to one person alone. But there was absolutely no justification for him to request the Resident-Magistrate to depute a Magistrate for removing the seals of the rooms as well as to set the articles sold by public auction and the price thereof to be deposited in Court. This gives out the mind of the officer-in-charge that he was bent upon taking revenge against Gauri Shanker and two other members of his family. In the petition it is alleged that the petitioner and the other members of his family had annoyed a relation of the Resident Magistrate and that was why the Magistrate and the officer-in-charge were acting in that manner. Any way, I am not concerned with that aspect of the matter, but the facts of this case speak for themselves. The action of the Resident Magistrate as well as the officer-in-charge cannot but go to indicate that they were biased against the petitioner, otherwise there was no hurry in a case like this to get the warrants of arrest and processes under Sections 87 and 88 of the Code of Criminal Procedure executed simultaneously. As already indicated, the officer-in-charge has committed contempt of the order of this Court as conveyed to him through the Munsif Magistrate. It is true that the order of this Court was not directly sent to him; but in ordinary course it had to be sent to the Court below, that is, the Court of the Sub-Divisional Magistrate or the Resident Magistrate. It is true that the order of this Court was not directly sent to him; but in ordinary course it had to be sent to the Court below, that is, the Court of the Sub-Divisional Magistrate or the Resident Magistrate. In my opinion, therefore, he is clearly guilty of the contempt of the order of this Court, dated, the 29th July, 1971, passed in Criminal Miscellaneous No. 1427 of 1971. 5. I would then come to the question as to what punishment should be meted out to the officer-in-charge who deliberately flouted the order of this Court. Learned Government Advocate has argued that the officer-in-charge has not disobeyed the order of this Court, but has simply written a letter to the Resident Magistrate seeking clarification of the order of this Court. But in my opinion, the matter does not rest there, because had he only sought clarification, it was a different matter but he went a step further and suggested that the properties seized should be sold by public auction. This was certainly beyond his jurisdiction, after this Court had ordered release of those properties to the petitioner. 6. Learned Government Advocate has further argued that a lenient view should be taken in the matter and his unqualified apology should be accepted and he may be let off with a warning. In my opinion, this suggestion will not meet the ends of justice in this case. On behalf of both sides some case laws have been cited before me. But I want to make it clear that the facts of one case cannot be taken as a precedent for the facts of another case. The quantum at punishment varies from case to case and the Court has to take into consideration the matters before it as well as the circumstances in which its order has been flouted. In the case of Mahomed Ikram Hussain V/s. The State of Uttar Pradesh, ( AIR 1964 SC 1625 : (1964 (2) Cri LJ 590)) the High Court had directed the contemner to bring to the Court his daughter, Kaniz Fatima, but that order was not obeyed by the father. Then a second order was passed by the High Court giving ten days time to obey the direction. This also was not done. Then the High Court punished the father and passed a sentence of three months imprisonment. Then a second order was passed by the High Court giving ten days time to obey the direction. This also was not done. Then the High Court punished the father and passed a sentence of three months imprisonment. The matter went to the Supreme Court and this sentence was accepted as adequate in the circumstances of the case. 7. In the case of the State V/s. Vishwanath Prasad Varma ( AIR 1951 Pat 451 (2)), a Division Bench of this court found the Court Sub-Inspector guilty of contempt of the courts order and sentenced him to pay a fine of Rs. 25/- or, in default, to undergo rigorous imprisonment for one week. In that case the order of the court was that the accused should be sent to Jail custody but the Court sub-inspector manoeuvred to get an order from the Sub-Divisional Magistrate, who was not in seisin of the case, that the accused might be sent to Motihari Jail or might be kept in the court lock-up. 8. In the case of the State V/s. Bhawani Singh, AIR 1968 Delhi 208 : (1968 Cri LJ 1265) (FB) a full Bench of Delhi High Court (Himachal Bench) found the accused guilty of contempt of court and sentenced him to pay a fine of Rs. 100.00 and also to pay the costs of the proceeding. I am tempted to quote the following lines from this judgment. "..............the offence of contempt of court is coeval with the administration of law by the State and its paramount idea is that no tribunal can function properly unless it is allowed to keep by its dignity and unless it has power to enforce its orders. The orders of the courts of law and justice in this Republic are enforced through the police agency, and indeed it is the duty of this agency to carry out and enforce such orders and also to see that there is no obstruction caused to their enforcement. Disobedience on the part of such agency of orders of Courts of law and justice is, therefore, an offence which can be ignored only at the risk of rendering the courts impotent which would in turn bring into ridicule the judicial process. This would result in utter confusion in the realm and the administration of justice and the Rule of law would be reduced to mockery............... This would result in utter confusion in the realm and the administration of justice and the Rule of law would be reduced to mockery............... The chief excellence of our Republican Government, it may be pointed out, lies in the checks and balances and in this set up the judiciary has been entrusted not only with the solemn duty of administering justice between man and man and between man and State, but also, in the course of doing justice to scrutinise in accordance with law the functioning of the executive authority when the constitutional and legal rights of the citizens are in question. In the performance of this sacred constitutional duty by the courts no obstruction on the part of any agency, however high-placed, including the police agency can be tolerated. To do so may mean an indefensible lapse of their obligation, if not also abandonment of their duties, by the courts. Indeed the executive agency in illegally refusing to execute and respect the orders of the courts of law and justice would seem to us to do so with the peril of the possibility of proceedings for contempt........." (Para 6) 9 On behalf of the contemner, my attention has been drawn to two unreported cases of this courts, namely Sabita Gupta V/s. Raza Mallick (Original Criminal Misc. No. 19 of 1965 decided on 10-11-1965, (Pat) and Gautam Prasad Singh V/s. Umeshwar Prasad (Original Criminal Misc. No. 1 of 1970, decided on the 22-1-1970, (Pat)). In both these cases the unqualified apology tendered by the contemner was accepted and the rule was discharged. But the facts of these two cases clearly indicate that there was no deliberate intention to disobey the order of the court, but only under some misgivings the orders were not promptly carried out. 10. I have given my anxious thoughts to the facts of the instant case from various standpoints, and my considered opinion is that Sheo Kumar Mishra, Officer-in-charge of Rajmahal police station, should have realised his duties and responsibilities in such matters. He has to guard the rights of the public while trying to maintain law and order. If a jail punishment is awarded to the contemner perhaps, he may lose his service. Therefore, taking a compassionate view of the matter. He has to guard the rights of the public while trying to maintain law and order. If a jail punishment is awarded to the contemner perhaps, he may lose his service. Therefore, taking a compassionate view of the matter. I direct that Sheo Kumar Mishra shall pay a fine of rupees one hundred within a period of one month from today and he be detained till the rising of the court which, I think, will meet the ends of justice in this case. He shall further pay the costs of this proceeding to the petitioner Gauri Shanker Jain, which I assess at rupees one hundred, within the aforesaid period of one month.