$44
SEBASTIAN M. RONGRAY UNION OF INDIA & ons. . April 23, 1984 oa
‘D.. A. Desar AND 0. CHINNAPPA REDpy, J. ]
Writ of Habeas Corpus served on Respondents directing them to produce the two nated persons~— Respondents fail to file a return but explain the reasons for not producing them~~ Appropr iate mode of enforcing abedience to a Writ of.”
Habeas Corpus, explained —Contempt of Court Act, 1971 Sections 2 (a) atid
9)" civil contempt” and wilful. di obedience”, explained Examplary Cost
. by way of: Compensation ordered under Rule 6 of order XLVI of Supreme -Caurt Rules, 1966. ; _ ; On Novnber 24, 1983, the Court ‘by its judgment and. order: ‘directed
“that a writ of Habeas Corpus be issued——-Though the Ist, 2nd and 4th tespondents” Sere served, they failed to file.a- returo to the Writ. ‘However
~ dyeturn on affidavit by one Ajai Vikram Singh Director, Ministry of Defence was filed on 12.12.1983 expressing their inability to. produce® the two named officers due to clreuthstances beyond theit control and their failure to tracé them even with..the assistance of Central Bureau of Investigation.’ This: was supported by a copy of the report by the Dy. Inspector
Genera} af Police (s). . Makiig the Rule absolute dhe Court,
. HELD ‘1. In compliance with the - mandatory direction contained in the Writ of Habeas Corpus, the person to whom itis directed is under a
- legal obligation to produce the body of the person alleged to be unlawfully ‘detained. before the Court on the day specified and to mak: a formal return to the writ. Here, such a writ has been issued and there bas been failure to produce the missing persons in’ respect of whoni writ. is issued and to file. « the return as mandated by law. [547E- F}
AS | The Contempt ‘of Courts Act, 197 i defines ‘ ‘coitempt of court’, ;
“in Sec. 2(a) to mean ‘civil contempt of criminal contempt’. ‘Civil contempt?
" 4g defined in Sec. 2(b) to mean ‘wilfal disobedience : to any judgment decree, direction, order, writ or other. process of a Court or wilful breach of an: ” undertaking | givén toa Court’. Wilful . disobedience.to a’ writ issued by the
Court constitutes civil contempt. IS47H; #484
9:2 Mere failure to obey the writ inay not. constitute civil contempt depending upon the facts and circumstances: of the case. But wilful disobe~ dience-to a writ ‘issped by a Court constitutes -civil contempt. Again it is well-settled that the: appropriate mode of enforcing obedience to a writ of habeas corpus; is by | comgmnittal for gontempt. A committal order may ‘be. » .
“
Bo " §. MOHONGRAY:». UNION aS stmade'against a person who intentionally makes a false return to a writ of habeas corpus, but an unintentional misrepresentation ona return is not a ground for committal. [548B-C] ;
«
2:3 ‘Thee view of this Court as expressed in the main judgment
‘elearly indicates that the assertion of respondents I, 2 and’ 4 that C. Daniel © and C. Paul left Phungrei Camp where 21st Sikh Regiment were stationed is mot correct and that to avoid responsibility flowing from the ‘mysterious disappearance of C. Daniel and C. Paul an attempt was made to suggest that they had ieft alive in the company of theic compatriots. On- that conclusion ‘one can say that ‘there is a wilful disobedience to the writ of Mpabeas corpus by misleading the court by presenting a distorted version of facts not horne out by the record. It is thus established. that the respondents 1, 2 and 4 have committed civil contempt by their wilful disobedience to the writ. [s48D- EI
3:1 Civil contempt -is punishable with. imprisonment as well as fine. ©
‘Wn-a given case, the court may also penalise the party in contempt by ordering him to pay the costs of the application. -A fine can also be imposed |
_upon the contemnor. [548F]
.
3:2 In the facts and . circumstances of the case, keeping in view the
* torture, the agony and the mental oppression through which Mrs. C,
_Thingkhuila, wife of Shri C. Daniel and Mrs.’ C. Vangamla, wife of Shri “C. Paul had to pass and they being the proper applicants, the formal application ‘being by Sebsstion M. ‘Hongray, the court considered it Proper and directed that as a measure of exemplary costs as is perthissible’ in such , cases, respondents Nos, I and 2 shall pay Rs. 4 lac to each of the afore. mentioned two women within a period of four-weeks from April 23, 1984, a oo. _ . [848G-H; saga]
4, Further adjourning the matter to enable.the respondents to trace
* or locate the two ‘missing. persons is to shut the eyes to,tife reality and to persue a mirege. The two officers have not met their: tragic end in an encounter as is usually claimed and the only possible inference that can be
: @rawn from circumstance of the cage is that. both of them must have met
‘an utinatural death. Prima facie, it would be an offence of murder, Who is
- Aindividually: or collectively the purpetrator ‘of the crime or is responsible
» for: their disappearance will have. to be determined by a proper, thorough oevand responsible police .investigation, ‘ It is not necessary to start casting a
Woubt on anyone or any particular person. But prima facie there is material
Gn record to reach an affirmative conclusion that both Shri C.. Daniel and
‘Shri C. Paul are not alive and- have met an unnatutal death. And the Usiion of India ‘cannot disown the responsibility i in this behalf. {sane a - (The Coutt issued a writ of matdamus to the Superintendent: of Police, ; ahaha Manipur State to. treat all the papers in the Writ of Habeas Corpus
“information of a cognizable offence and to commence invéstigation as”
- preteribed by the relevant Provisions of the Code of Criminal Procedure.) — o oe ee 0 [S49B-F]
us
54600 7 SUPREME COURT REPORTS [1984])3son, %
A ORIGINAL J JURISDICTION : Writ. Petition (Criminal) No. 148. of 1983. a i ‘ av . . ”
Ny = nde article 32 of the Constition of India) |
_ | Ms. Nandita Haksar and. CS. Vaidyanathan for the Petitioner.” 4? . BO. Ms. A. Subhashini for Respondent. . - ; ch ‘
Mrs. ‘Urmila Kapoor for Respondent. 7 . Se
9.6 Mahajan, PLN. Purl S.K. Mehta and Balbir ‘Singh Shams e@ for Respondent. ae ’ The Judgment of the Coutt w was delivered by \
~ Desai, J. ‘On Nov. 24, 1983, the Court by its, Judgment and order’ directed that a writ of habeas corpus ‘be issued, The opera- — tive portion of the order reatls as under :
- # Accordingly, this’ petition is allowed and we direct. that a writ of habeas corpus be issued to the respondents ‘1,2 and 4 commanding them to produce C. Daniel, ‘retired. - Oe “Naik Subedar of Manipur Rifles and Headmaster of the . »" * Junior High School of Huining Village and C. Paul, Assis- ee hh
. E "tant Pastor of Huining Baptist Church, who were taken to
Phungrei Camp by the jawans of 21st Sikh Regiment. on - _ March’ 10, 1982 before this Court om Dec. 12, 1983 and ; file the return.” so ve
- The Registry issued the writ and served the same upon first,
*#F ' respondent—Union of India, second respondent—Secretary, Ministry — of Home Affairs and 4th respondent—Commandant, 21st Sikh Regi-
. thent, Phungrei Camp. Pursuant to the writ, it was. obligatory * upon respondents 1, 2 and’ 4 to file the return and to produce
C; Daniel and C.-Paul. A return-on affidavit by one Ajai Vikram .
_.. Singh, Director, Ministry. of Defence dated: December 9, 1983 was ‘
— G prodcea in the Court on December 12, 1983. stating therein “that
’ with all the willand the best efforts, the respondents are unable to produce S/Shri C. Daniel” and C. Paitl for the reasons set out in * the affidavit and crave for indulgence of the Hon’ble Court’ for a their inability to produce the above-named ‘individuals due to
- .¢iréumstances beyond their control.” “It. was: reiterated that C,
Daniel and C. Paul were not in the’ custody or controf of respondents _ 1,2, and 4, To this return several affidavits and messages were
S. M HONGRAY y. UNION (Desai, J.)
annexed saying that the Army authorities conducted an extensive
"search for tracing C. Daniel and C. Paul but nothing Truitful has been achieved One Surendra Kumar, Deputy Secretary, Ministry of Home Affairs had also filed the return stating that C. Daniel and — - C. Paul are neither in the custody or control of respondent No. 2. ‘It was stated that Central Bureau of Investigation (CBI for short)
have been directed to eonduct enquiries to locate the aforementioned two persons and to ‘intimate the result thereof. The matter was adjourned to etlable the respondents to pursue their efforts. Nothing "fruitful came up even though 'the’matter was twice ad-
"A journed at the request of learned Attorney. General who entered - appearance on behalf of respondents Nos. 1,2 and 4. The writ petition was posted for further hearing and orders on April 19, 1984. On that day, a summary of enquiry made by CBI was sub- mitted to the Court in which it'was stated that ‘the field enquiries made by the CBI. and the efforts made to locate the two persons
Sri Daniel and Sri Paul’, The report was submitted by the ‘Dy. Inspector General of Police (S).
_ It is now necessary to deal: with the failure of respondents 1,2 and 4to file the return to the writ of habeas corpus. After a preliminary enquiry and after hearing ‘the respondents and after negativing their contentions that Shri C. Daniel and Shri C. Paul - _ were hot seen last alive, in the custody of the 4th respondent, the
Court directed to issue a writ of habeas corpus. The writ of habeas corpus was issued and was served on respondents 1,2 and 4. In compliance with the-mandatory direction contained in the writ of habeas corpus, the person to whom it is directed is under. a legal ‘obligation to produce the body of person alleged to be unlawfully detained before the Court onthe day specified and to make a formal return to the writ. @) Such a writ has been issued and there writ is issued and to file the return as mandated by law:
a is
.-. The next question therefore, is : what i is the appropriate mode of enforcing obedience toa writ of habeas corpus? sl. e
The Contempt of Courts Act, 1971 ‘defines ‘contempt of court?
in Sec. 2(a) to. mean ‘civil contempt or criminal contempt’. ‘Civil con- |
(i): Halsbury’s Laws of Eoaland Fourth Edition, Vol. 11 para . 1492 at 9 pags 791, .
Cc
‘have yielded no results and it hasnot been possible to locate - has been failure to produce the missing persons in respect of whom
54800 SUPREME COURT REPORTS « ° 198 3 S.C.R, Lp - A tempt’ js defined 'in Sec. 2b) to mean wilful disobedience to any judgme raent decrée, direction, order, writ.or. other process of a Court.or wilful. breach ‘of an undertaking.given to 4 Court.’ Wilful disobedience toa, writ: issued by the Court constitutes civil contempt: The question is: whether this disobedience is wilful? Mere failure to obey the writ may. not. constitute: civil contempt depending upon the | B facts and circumstances of the case. ‘But wilful disobedience to.a, writ issued by.a Court constitutes civil contempt: Again it is well- 4. settled that ‘the appropriate -mode of enforcing ‘obedience toa wit & _ of habeas corpus is by committal for. contempt.” A committal order , "may be made against a person who intentionally makes a “false “return to a writ of habeas corpus, but.an : unintentional misrepresen- ¥. tation ona return isnot a ground for. committal. *e)
“The view of this Court as “expressed - in the main judgment , ‘clearly. indicates. that-the assertion of: respondents: 1, 2 and 4 thats - ~-, C. Daniel and C. Paul left. Phungrei. Camp where 2Ist Sikh Regi- “ Ba : _ 4. ment: were stationed .is- not. correct and thatto avoid responsibility _ D flowing from the mysterious disappearagce of C. Daniel and C. Payl ’ an attempt was’. made to suggest that. they. had left alive in the company of their compatriots.’ The Court has rejected this ‘submis- © _ Sign as untenable and uncorgect. -Qn that conclusion one can say that there is a wilful disobedience to the writ.of habeas corpus -by '* misleading the court by presenting a distorted version of facts. not borne out. by the record.. It is thug. established, that the respondents _ 1, 2 and 4 have committed. cil contemp! by their wilful disohe- » ,dience to the writ, le,
. Civil contempt is punishable with imprisonment. as well as- fine. Fo oina giveth case, - the cout may algo: penalise the party in contempt . + by ordering him to pay the costs of the application. (2) A fine | can - , also be imposed upon the contemmor.
Now in the facts and circumstandes of the cake, we do not ¥ _ propose to impose imprisonment for any amount as and by way of G _ fine but keeping in view ‘the torture, the agony and the mental ~ oppression through which Mrs. C. ,Thingkhuila; wife of Shri or ~ “C. Daniel and Mrs. C. Vangamla, wife of Shri C. Paul had to pass.
- * and they being the proper applicants, - the . formal application being. *.
by Sebastian M.. Hongray, we ie that as a measure of exem-
- a (1) ibid para 1497 oo 7 ; on, : (2) Halibury's Laws of England, Fourth Edition, Vo}. 9 para 100 a Se
‘#
- ~ .* 8M. HONGRAY ve UNION (Desai, J)
‘plan costs as is permissible i in such. c cases, respondents Nos. 1 ‘and shall pay Rs I “lac. to’ each of the aforementioned: two women. within a period of four weeks from today.
a
"549.
A query was posed to > the jearned Attorney General about the .
further step to be taken.- It was made clear that further adjourning the matter to enable. the respondents to trace or lecate the twomissing persons is to shut the eyes to the reality and to pursue a mirage. As we are inclined to direct registration of an offence and an investigation, we express no opinion as to what fate has befallen
_to Shti C. Daniel and Shri C. Paul, the missing two persons in tes- ~ pect of:-whom the writ of habeas corpus was issued save and except saying:that they have not met their tragic’ end in an encounter as {8 ~ usually claimed and the only possible inference that can be drawn — from’ circumstance already discussed is that both of them must have met an unnatural death. Prima. facie, it would be an offenée of murder. Who is individually or collectively the purpetrator of the ° crime or is responsible for their disappearance will have to be deter- -
_ mined by a proper, thorough and responsible police investigation,
It. is not necessary to start casting a doubt on anyone or any patti- cular person. But prima facie there is material on record to reach an affirmative conclusion that both Shri C, Daniel and Shri C. Paul are not alive and have met an unnatural. death. And the Union of India cannot disown the responsibility i in this behalf. If this inference is permissible which we consider reasonable in the facts and circumstances of the case, we direct that the.” Registrar (Judicial) shall
_ forward all the papers of the case accompanitd by a writ of .man- damus to. the Superintendent of Police, Ukhrul, Manipur State to be treated as'information of a cognizable offence and to’ commence - investigation as prescribed by the relevant provisions of the Code of Criminal Procedure.
-- +
Rule made absolute.