Arun Kshetrapal v. Registrar, High Court, Jabalpur & Anr.

RAY, C.J.-This is an appeal under section 19(1)(b) of the Con-tempt of Courts Act, 1971 referred to as the Act against the order dated 20 August, 1975 of the High Court at Jabalpur convicting the appellant and sentencing him to suffer imprisonment till the rising of the Court under section 4 of the Act and to pay a fine of Rs. 100/-. The High Court however accepted the apology of the appellant for the purpose of remitting the punishment under the proviso to section 12 (l) of the Act and remitted the sentence and ordered the appellant to pay the paper book costs and to bear his own costs.

The appellant is a District Magistrate of District Rajnandgaon in Madhya Pradesh.

A ·detenu Vidya Bhushan Thakur challenged in the High Court by way of a habeas corpus petition the validity of his detention order passed by the appellant under section 3 ( 1) (a) of the Maintenance of Internal Security Act, 1971.

On 1 August, 1975 the High Court directed the production of the detenu in court on 8 August, 1975.

On 5 August, 1975 the appellant received a telegram from the office of the Advocate General, Madhya Pradesh intimating the appel-lant the order of the High Court to produce the detenu Vidya Bhushan Thakur before the High Court on 8 August, 1975 in connection with · the habeas corpus petition.

Immediately on receipt of the telegram from the office of the f\.dvocata General th~ app~llant ~oml!lunic_ated the same to the Super-mtendent, Central Jail, Raipur d1rectmg him to send the detenu to Jabalpur under strong guard for his producllion before the High Court on 8 August, 1975. The order was communicated to the Superinten-dent, Central Jail Raipur on the same day and accordingly the Super-intendent, sent the detenu on 6 August, 1975 at 5.35 p.m. to Jabalpur and thereafter the detenu Wai duly produced in Court on 8 August, 1975.

The State Government had passed an order under section 268 of the Criminal Procedure Code which was published in the Official Gazette on 1i August; 1975. The appellant referred the matter to the Home Secretary for clarification of .~he notification vide a wireless message dated 6 August, 1975 as to whether the detenus under the Mainf!nance of Internal Security Act are to be produced before the High Court in connection with the._habeas corpus petitions. The appel- ·C !ant also spoke· to the Government Advocate on 6 August 1975 and

brought to his notice the above notification of the State Government. The Government Advocate informed the appellant on telephone that neither the Advocate j]eneral nor the _High Court had so far received a copy of the said! noJification. The appeirant then informed the Government Advocate thiit he would be sending a copy of the said notification by wireless for information. The appellant despatched the :D wireless message to the Government Advocate at Advocate General's

address quoting the notification as received from the Government.

The wireless message quoted the notification and the request of the appellant to the Advocate General was as follows :- .

"In the light o_f,.,e,bove Government Notification he was requested to request the Court not to insist on the production iE of Vidya Bhushan Thakur as there is strong possibility of dis-

turbance of public order if Vidya Bhushan Thakur is taken out from jail. Kindly foform the Government regarding the action taken."

On 6 August, 1975 after the telephonic conversation with the Government Advocate, the appellant again directed the Superinten-dent, Central Jail, Raipur to produce the detenu before the High Court on the date of hearing and informed the Advocate General that the detenu would be produced before the High Court and the detenu was in fact produced before the Court.

The High Court took the view that the wireless message dated 6 August, 1975 addressed to the Advocate General wiith a copy to the ·G Registrar of the High Cou~t amounted to an expression by the appel-

lant of his inability to obey the order of the Court on account of the notification issued by the State Government published in the Official Gazette on 1 August, 1975. The High Court ordered the appellant to show cause why he should not be committed for contempt in exercise of the· powers of the Court under Article 215 of the Constitution read with section 10 of the Act.

~H The appellant appeared before the High Court on 13 Augus~, 1975.

The case was adjourned to 14 August, 1975 to enable the fihng of a reply which was submitted in the form of an affidavit together with some enclosures. The appeJ.lant pleaded for the discharge of Rule Nisi on the ground that no contempt of court was committed and that wireless message to the Advocate General did not constitute a con-tempt of court.

The High Court by order dated 20 August, 1975 found the appel-lant guilty of contempt bX_holding that the appellant h11d sent the wire-less message dated 6 August, 1975 without waiting for reply from the State Government regarding the clarification of its Notification. R

The appellant on' 6 August, 1975 referred to the Home Secretary for clarification of the noiification dated 1 August, 1975. The appel-lant sent a copy of the notification to the Advocate General. The appellant also directed the Superintendent, Central Jail, Raipur to produce the detenu befort: the Court. The detenu O.n, fact was pro-duced before the High Court. All these features indicate that the appellant throughout acted in a careful and responsible manner.

The reply of the Government to the clarification asked for by the appellant on 6 August, 1975 was received on 8 August, 1975, that is fo say two days after the wireless message had been sent to the Advocate General. The clarification message of, the Govi;:rnment reached the appellant in the afternoon of 8 August, 1975, viz., the date on which the detenu was to have been produced in court. The State Govern-ment in the note clarifying the position informed the appellant that in case the appellant was_advised to produce the detenu before the High Court and if the High Court insisted on such production the High Court should be informed well before the date on which the detenu is to be produced by an affidavit sworn by an officer in charge that there is danger to public order if the detenu O.s produced. It appears that the appellant had acted just as the Government clarification suggested.

The appellant gave the notification to the Advocate General be-cause the latter did not have it and asked for it. The appellant asked for clarification from the State Government as to the notification be-cause of the situation in which he was placed. The appellant sent J instructlions1 to the Superintendent, Central Jail, Raipur to produce the

<iletenu. The dotenu was produced before the High Court, The appel-lant took all steps in good faith. The appellant from the beginning gave directions for production of the detenu. •

The High Court held that the affidavit of the appellant contained no reference to the telephonic talk with the Advocate General pursu-ant to which a telegram had been sent and therefore a it was a false a1lidavit. The High Court also held that sending copy of the wire-less message addressed to the Advocate General to the Registrar of the Higli Court for information amounted to an attempt to interfere with the order of the High Court. .

·Tile appellant sent a copy of the. wireless message addressed to the Advocate General to the Registrar for information only. The appel-lant took all steps to produce the detenu even before the receipt of the clarification or advice by the State Government for production of the detenu before the High Court. The appellant sent the wireless message to the Advocate General only to appri~e him of the notification sent by the State Government. The appellant sent that information inasmuch. as the Government Advocate had informed the appellant that neither the Advocate General nor the High Court was aware of the said notifi-cation issued b_y the .Sta~ Government. The appellant requested the Advocate General to request the Court not to insist on the production having regard to the public order which request was consistent with the direction of the .State Government.

:B The absence of reference to the telephonic talk in the affidavit docs

not mean that no .such talk in fact took place. The appellant produced the telephone bill as well as the letter of the Advocate General to show that there was in fact a telephonic conversation. The appellant com-municated to the Advocate General in the discharge of his official duties the notification issued by the Government. The appellant !\~quested the Advocate General to request the High Court not to insist on the <C production. The wirele~~ message was not addressed to the Court.

The original addressee was the Advocate General. A copy was sent to the Registrar for information th,!l~ such a telegram had been sent to the Advocate General.

The appellant tendered apology with grace and not as a coward. The appellant produced the detenu. The appellant at no stage inter-fered with any ord~r of the High Court. The appellant never showed any disobedience. On the contrary the appellant acted in obedience to the order of the High Court.

remitting the punishment, The order ()t the ffigh Court cannot be ·sustained in view of ,the tender of apology by the appellant :is well as the production of the detenu. The !IPPe~l is accepted. The judgment and order of the High 'Court are set aside.

:S.R. ,°".,:"" i 1·..,.·--·-· Appeal allowed.

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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 21 of 1976.

(From the judgment and Order dated 20-8-1975 of the High Court of Madhya Pradesh in Misc. Criminal Case No. 1010/75).

B. Sen, Mrs. A. K. Verma, J. B. Dadachanji, 0. C. Mathur and R. Narain, for the appella_nt.

N emo, for the respondents.