IN THE HIGH COURT OF JUDICATURE AT PATNA OCR. MISC (DB) No.1 of 2008 THE STATE OF BIHAR Versus SUNIL KUMAR PANDEY,MLA.,BIKRAM ----------- For the petitioner:- Mr. Prasoon Sinha,Government Advocate No.III For the Opp-Party No.1:- Mr. Suraj Narain Prasad Sinha,Senior Advocate . For Opp-Party Nos.1,7,8 & 9:-Mr. Sanjay Kumar Manu, Advocate For Opp-party Nos.2 to 6:- Mr. S.B.K.Mangalam & Shashi Bhushan Singh O R D E R 13 10.9.2008 We would like to begin by reminding ourselves the wise words of the Supreme Court in the case of Special Reference ( 1965(1) SCR 413:- “The power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity of the Court, but may sometimes affect it adversely.” Sunil Kumar Pandey is an elected member of the Bihar Legislative Assembly. He is accused in a large number of cases including Karakat P.S. - 2 - case No. 8 of 1999(sic 9 of 1999) registered under Section 302 and 201/34 of the Indian Penal Code. His Counsel is unable to say the exact number of cases pending against him. While he was in judicial custody a production warrant was issued for his production in the Court of Sub Divisional Judicial Magistrate, Bikramganj on 25th of April, 2007. What had happened on that date is described in the report of the Superintendent of Police, Rohtas to the Director General of Police, Bihar Patna in its letter dated 28.4.2007. According to the report, when aforesaid Sunil Kumar Pandey reached near the main gate of the Court came across Sub Divisional Prosecution Officer. He caught hold of him and also misbehaved with him. The employees of the Civil Court tried to pacify him but he pushed them forcibly entered into the - 3 - Chamber of Sub Divisional Judicial Magistrate and misbehaved with him. Escort party deputed forcibly took him out of his Chamber. Thereafter he entered into the Court room of another Judicial Officer, namely, Ramayan Ram. The District and Sessions Judge, Rohtas at Sasaram by its letter dated 30th of April, 2007 forwarded the letter of the Superintendent of Police, Rohtas addressed to the Director General of Police to this Court. The incident taking place in the Court was widely reported in the various Newspapers published from Capital. The Sub Divisional Judicial Magistrate in whose Chamber the contemnor Sunil Kumar Pandey had entered had also submitted a report to this Court. In the report he has stated as follows:- “With respect I beg to say with sorrow that today on 25.4.2007 at 11.40 A.M. when I was performing my judicial work in Chamber, in the meantime, - 4 - accused Sunil Pandey, who is facing trial in connection with G.R. No. 49/1999/T.R. No. 1670/2007 entered in my chamber at 11.40 A.M. in state of over drunkness with his guard and started creating disturbance in my chamber, abused, and threatened in the chamber, and showed his activity to assault me. In the meantime by the interference of staff, I could be saved. Later on by the help of staff and Guards he was forcibly removed from my Chamber.” The aforesaid report of the District and Sessions Judge and that of the Sub Divisional Judicial Magistrate, led this Court to direct for initiating proceeding for criminal contempt in exercise of its suo moto power. On 29.1.2008 when the matter was taken up this Court directed the Counsel for the State to furnish names and particular of the persons who were members of the escort party entrusted to take contemnor Sunil Kumar Pandey to the Court. Rule was issued to Sunil Kumar Pandey and other members of the escort party. - 5 - On furnishing the details of the escort party, notice of contempt was also issued against them. They are Daroga Ram, Reserve Police Sub- Inspector, Constable No.121, Md. Safique, Constable No.21,Nathuni Yadav, Constable No. 598, Md. Zaffrudin, Constable No. 1129, Suresh Jha and Constable No.563, Megh Nath Rai. Notice of contempt was given to Assistant Jailor Rajendra Prasad, Jail Clerk, Raj Kishore Singh and Gate Warden, Ram Bhajan Singh of Divisional Jail, Sasaram, from where the contemnor Sunil Kumar Pandey was brought to the Court. Besides Sunil Kumar Pandey, there are three sets of contemnors, namely, Reserve Police Sub Inspector Daroga Ram, Constables of the escort party and Jail officials. We shall refer them accordingly. Show causes have been filed on - 6 - behalf of the contemnors Sunil Kumar Pandey. No show cause has been filed on behalf of contemnor Daroga Ram, Jail officials, namely, Rajendra Prasad, Raj Kishore Singh and Ram Bhajan but reply affidavits have been filed on their behalf. We at the request of their Counsel are treating those to be show cause on their behalf. Two Identical show causes have been filed by the Constables. Contemnor Daroga Ram in paragraph nos. 4,6 and 7 has stated as follows:- “That it is respectfully submitted that any kind of intoxicant has never been supplied to the prisoner Sunil Pandey or any one, therefore, the deponent is quite innocent and he is not responsible in any manner whatsoever. That at the time of departure of the said M.L.A. he was quite well and sound and was fit to be produced before the Court, but unfortunately the alleged occurrence took place for which the deponent is not responsible even for a moment. That it is respectfully submitted that no medical examination of the said M.L.A. has been done in the alleged occurrence to find out the reality of intoxication which allegedly taken by - 7 - the said M.L.A. and the matter is based upon presumption only.” The constables, of the escort party in their show-cause have taken altogether a different stand. In paragraph 4, they have stated as follows:- “That while Sunil Kumar Pandey, came out from the Jail, he was found in an inebriated condition. The answering Opposite parties when marked it, they informed their In-charge about the inebriated condition of M.L.A. That the In-charge Sub Inspector Daroga Ram ( Opposite party No.1) did not take it seriously and stated to the answering Opposite parties that-“ BIDHAYAK JI BARABAR NASE MAI RAHTE HAIN,” Constable Md. Shafique had filed a separate show cause but his stand is exactly the same as that of the other constables. The plea of contemnor Jail official is that Sunil Kumar Pandey was not drunk while coming out of the jail and in fact might have taken liquor in the way. In this connection the - 8 - communication of the Superintendent of Jail to the Superintendent of Police has been referred. The plea of contemnor Sunil Kumar Pandey in his show cause is as follows:- “That it is denied that Opposite party was in drunken condition. He was taken from Sasaram Jail straight to Bikramganj Court, and no body made any complaint about drunken condition. It is again asserted that the Opposite party never consumed liquor on that day at any point of time. That vehicle in which he was being brought from Sasaram Jail reached Court room after, the learned S.D.J.M. had left the Court room and had returned to his Chamber. That since the Opposite party had to mark his attendance, he was taken to Chamber by the peon of the Court since the Peshkar was also not in the Court room. Opposite party, accordingly entered the Chamber and took his seat on the Chair. That Opposite party had to sign his attendance which he could not do in standing position. Petitioners’ right hand is defective (Physical deformity) and unless he took his seat he could not sign. As such Opposite party put his right hand on the table of the learned S.D.J.M., for the purpose of marking his attendance. The learned SDJM felt offended and admonished the Opposite party as to how could be enter his Chamber and could take seat without taking permission from him. It appears that the action of the Opposite party - 9 - made angry. The Opposite party of course, told him that since attendance was to be marked by him, he entered the chamber and it was the Peon who took him inside the Chamber. That this Opposite party admits his mistake in entering the chamber of the learned Judge and occupying the chair without seeking permission from the learned Judge. However the said mistake was neither deliberate nor was meant to show disrespect to the Presiding Judge. The Opposite party immediately left the Chamber after marking his attendance. It is further state that the trial was going on since long and on each date he had been appearing and his conduct has been above board and no grievance whatsoever has been raised against him. That the opposite party again tenders his unqualified apology in causing inconvenience to this Hon’ble Court by any act of omission or commission on his part. He further undertakes that in future he would give no opportunity to any body much less the judiciary to make any grievance. It is again made clear that this Opposite party holds the judiciary in very high esteem and he cannot even in wildest dream, think of showing disrespect to any member of judiciary.” Supplementary show cause has also been filed by the contemnor Sunil Kumar Pandey in which besides tendering unqualified apology he has further taken a plea that the reference made by - 10 - the learned Magistrate is not in accordance with Rule 15 of Contempt of Courts ( Patna High Court Rules) and therefore notice be discharged. The plea of the Constables is that the contemnor Sunil Kumar Pandey came out drunk from the jail itself and though this fact was brought to the notice of the contemnor Daroga Ram Sub- Inspector of Police, he ignored the same observing that Hon’ble Member of the Legislative Assembly remains always drunk. However, according to the plea of the Jail Officials contemnor Sunil Kumar Pandey did not come out drunk from the jail custody and might have consumed liquor in the way to the Court. Plea of contemnor Daroga Ram is in conformity with the plea of Jail Officials. Taking into account the gravity of the matter, this Court by order dated 21st of April, 2008 directed the Chief - 11 - Secretary of the State and Director General of Police to hold inquiry and submit report on the following points:- “Was Sri Sunil Kumar Pandey drunk, was he not? Did he came out of prison drunk or got drunk on way to the Court.” It is distressing to state that the Chief Secretary and the Director General of the State did not submit the report and endorsed to this Court the report constituted by a Committee to examine the matter. This Court took note of the aforesaid conduct of the Chief Secretary and the Director General of the State in its order dated 25th of July, 2008 and observed as follows:- “Merely the fact that the affidavit annexing the report has been sworn by the Chief Secretary, shall not make the report of the aforesaid Officers as a report of the Chief Secretary and the Director General of Police. It may be possible for the Chief Secretary and the Director General of Police to constitute a Committee to prima facie record a finding but in the light of the order of this Court, it was for them to submit the report. They have failed to do that. - 12 - Let Chief Secretary of the State and the director General of Police appear personally before this Court on 28th of July, 2008.” It is only thereafter that the Chief Secretary and the Director General of Police of the State has submitted its report. In the joint report the Chief Secretary and the Director General of Police of the State have stated as follows:- “However, the Committee did feel inclined to take the position that it is enroute to Court from Jail that Sri Sunil Kumar Pandey might have consumed liquor and that action was initiated against the escort party. The possibilities of Sri Sunil Kumar Pandey taking intoxicant on way to Court has been surmised by the Committee in view of the previous experience seen in case of the prisoners of the category of Sri Sunil Kumar Pandey and the route being rather longish, to presume such a possibility may be considered a reasonable presumption.” Mr. Suraj Narain Prasad Sinha, Senior Advocate appearing on behalf of the contemnor Sunil Kumar Pandey submits that reference made by the learned - 13 - Magistrate is in breach of Rule 15 of the Contempt of Courts (Patna High Court Rules).He submits that before making a reference the Sub-ordinate Court is required to hold preliminary inquiry by issuing a show cause notice accompanying a copy of the relevant documents, if any, to the contemnor and after hearing, the Subordinate Court is required to write concise reasoned order of reference indicating as to whether contempt appears to have been committed. We do not find any substance in the submission of the Mr. Sinha and the submission has been based on an absolutely erroneous assumption. The District and Sessions Judge brought the incident to the notice of the Court. The learned Magistrate had also submitted the report. This Court took cognizance of the matter and in exercise of its suo moto power drew up the proceeding and - 14 - issued notice to the contemnors. In the face of it, we are of the opinion that the learned Magistrate was not required to follow the procedure as contemplated under Rule 15(2) of the Contempt of Courts (Patna High Court Rules). Mr. Sinha, then submits that the contemnor Sunil Kumar Pandey was not drunk and a little aberration in behavior shall not make him guilty of criminal contempt. He points out that no medical examination was conducted to prove that he was drunk. Criminal contempt has been defined under Section 2 ( c )of the Contempt of Courts Act, same reads as follows:- “2 (c ) “Criminal contempt” means the publication ( whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which- (i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or - 15 - (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;” In the show cause, contemnor Sunil Kumar Pandey admits to have entered in the Chamber of the Sub Divisional Judicial Magistrate. He also admits to have occupied the chair without seeking permission from the learned Magistrate. According to him, he had to occupy the chair because he had to sign the attendance which he could not do in standing position as his right hand is defective. Had this contemnor ventured to do the aforesaid acts only, without slightest hesitation we would have condoned his lapses. In fact in the show cause he has over simplified the issue. The Sub Divisional Judicial Magistrate in whose Chamber this contemnor had admittedly entered records the incident of the said date in - 16 - the following words:- “At 11.40 A.M. when I was performing my judicial work in Chamber, in the meantime, accused Sunil Pandey, alongwith the guard over drunk entered in my chamber and he sat down in my chamber and started creating disturbance in the chamber, abused and threatened in the chamber, and showed his activity to assault me. In the meantime, by the interference of staff, I could be saved. Later on by the help of staff and Guards he was forcibly removed from my chamber.” The Superintendent of Police in his letter addressed to the Director General of Police has also stated that the contemnor Sunil Kumar Pandey was drunk, misbehaved with the Sub Divisional Prosecution Officer, then forcibly entered into the chamber of Sub Divisional Judicial Magistrate and thereafter the Court of Ramayan Ram. The Constables of the escort party have also testified the fact that the contemnor Sunil Kumar Pandey was drunk. The joint report of the Chief Secretary and the Director General of Police of the State - 17 - also suggest that he was drunk. There does not seem to be any earthly reason as to why Sub Divisional Judicial Magistrate will give a wrong report. Merely the fact that contemnor Sunil Kumar Pandey was not medically examined will not leadto the conclusion that he was not drunk. From the conduct and behavior one can reasonably come to the conclusion as to whether some one is drunk and for that medical examination is not necessary. Even if we assume in favour of the contemnor Sunil Kumar Pandey that he was not drunk he had created disturbance in the Chamber of the learned Magistrate, abused him and from his gesture the learned Magistrate concluded that he could have been assaulted had the staff of Court not intervened. The next question is as to the contemnors who had facilitated that. The - 18 - plea of the Constables is that contemnor Sunil Kumar Pandey came out drunk from jail custody itself but from the plea of the jail officials he came out from the jail in perfectly normal condition. This plea of the jail officials has also been supported by Contemnor Daroga Ram. Having given our most anxious consideration to the rival pleas, one put forth by Contemnors jail officials and Daroga Ram and the other of the Constables, we are inclined to accept that the contemnor did not come out from the jail in drunken condition. Contemnor Sunil Kumar Pandey was handed over to the escort party at 8.10 A.M. He was found to be in drunken condition at 11.40 A.M. Had contemnor Sunil Kumar Pandey drunk while coming out of the jail its effect ordinarily would have diminished when he entered in the Chamber of the learned Magistrate. Not - 19 - only that the contemnor Daroga Ram the Officer-in-Charge of the escort party has unequivocally stated that contemnor Sunil Kumar Pandey came out of the jail in normal condition. The plea of the Constables that contemnor Sunil Kumar Pandey came out from the jail in drunken condition has been invented to get out of net of this contempt proceeding. It is not the case of the contemnor Constables that after knowing that contemnor Sunil Kumar Pandey is drunk they made any attempt to prevent him from entering the Chamber. Sunil Kumar Pandey was in the custody of the escort party and it was their duty to prevent him from committing any indisciplined act. We are of the opinion that contemnor Sunil Kumar Pandey did not come out of the jail in a drunken condition but appeared before the - 20 - Magistrate in a drunken condition, which obviously means that the escort party had facilitated taking intoxicant by the contemnor in way to the Court from Jail premises. In view of our finding the jail officials cannot be held responsible for the misbehavior of the contemnor Sunil Kumar Pandey and accordingly we discharge the rule so far as contemnors Rajendra Prasad, Raj Kishore Singh and Ram Bhajan Singh are concerned. From what has been stated above, it is evident that the contemnor Sunil Kumar Pandey entered into the chamber of learned Sub Divisional Judicial Magistrate without his permission in a drunken condition and misbehaved with him. This has been facilitated by the contemnors Daroga Ram and the Constables. They have not made any attempt to prevent him from behaving in - 21 - the manner found by us. The next question is as to whether the aforesaid conduct of Sunil Kumar Pandey and that of contemnors Daroga Ram and Constables expose them for punishment for criminal conduct. Contemnor Sunil Kumar Pandey entered the chamber of the learned Magistrate unauthorizedly misbehaved with him and intended to assault the learned Magistrate. These facts bring out his act within the net of criminal contempt. Sunil Kumar Pandey by his conduct had interfered and obstructed to the administration of justice. Contemnors Daroga Ram and the Constables facilitated that. They did not make any effort to prevent him, while he was in their custody. Hence they are also responsible, though their culpability will be different. Accordingly, we hold contemnors, Sunil Kumar Pandey, Daroga - 22 - Ram and Constables guilty of criminal contempt. Mr. Sinha, submits that even if a person is held guilty of contempt apology tendered can be accepted. Similar is the stand of Mr. S. B. K. Manglam appearing on behalf of the contemnors-Constables. In addition thereto Mr. Manglam submits that Constables are lowest person in the hierarchy and despite the fact that they brought the fact to the notice of the Contemnor Daroga Ram, the Reserve Sub Inspector, their apology be accepted. There is no difficulty in accepting the broad submission that apology can be accepted, even if a person is held guilty of contempt but the question is as to whether this is a fit case in which we should accede to this prayer. As we have said in the beginning the power to punish for - 23 - contempt, large as it is must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity of the Court, but may sometimes affect it adversely. Sunil Kumar Pandey was drunk he misbehaved with the Sub Divisional Prosecution Officer, entered in the Chamber of the Sub Divisional Judicial Magistrate misbehaved with him showed gesture to assault him and when forcibly removed from his Chamber entered into the Court room of another Officer. We have given our most anxious consideration to this aspect of the matter and in our opinion it shall be travesty of justice that a person who was virtually in rampage in the Court is let off by accepting the apology. He is an elected member of the - 24 - Bihar Legislative Assembly. He legislates. He has duty to uphold the law. Elected members remain under the scrutiny and watch of the people all the times. It is unfortunate that while behaving in the manner aforesaid he did not bear these basic facts in his mind. Democracy survives only when there is rule of law. The rule of law will survive only when the Judicial officers are allowed to function without fear or favour. Here the conduct of Sunil Kumar Pandey had put the Judicial Officer in fear, obstructed the Course of Justice.The object and purpose of punishing for contempt for interference with the administration of justice is not to protect the dignity of the Magistrate but the purpose is to preserve the authority of the Courts to ensure an orderly society. In the facts of the present case we are not inclined - 25 - to accept the unqualified apology tendered by them. Now the question is what sentence be awarded. The conduct of contemnor Sunil Kumar Pandey is abhorrent not expected of the members of the Legislative Assembly and accordingly, we are of the opinion that sentence of simple imprisonment for a term of three months will meet the ends of justice. Contemnor Daroga Ram was leader of the escort party and he had also facilitated the contemnor Sunil Kumar Pandey in behaving in the manner as found by us and making no attempt to prevent him from acting in the manner aforesaid. Hence he has also exposed himself for punishment. Taking into account his position in the escort party, we sentence him to undergo simple imprisonment for one month. Constables held guilty of contempt are the lower - 26 - members in the hierarchy