IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29/10/2004 CORAM THE HONOURABLE MR.JUSTICE M.KARPAGAVINAYAGAM AND THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU Contempt Petition No.397 of 2001 Parithi Ilamvazhuthi .. Petitioner -vs- 1. Thiru.Rajendra Kumar, Inspector of Police (L & O), G-1, Vepery Police Station, Chennai-7. 2. Thiru.Muthu Karuppan, Commissioner of Police, Chennai City, Chennai. .. Respondents Contempt Petition filed under Article 215 of the Constitution of India and under Sections 2(c), 12 and 15 of the Contempt of Courts Act, for punishing the respondents for having committed criminal contempt, as stated therein. For petitioner : Mr.R.Shanmugasundaram, Senior Counsel for Mr.R.Girirajan. For respondent-1: Mr.Aravind P.Dattar, Senior Counsel for Mr.A.K.S.Thahir. For respondent-2: Mr.I.Subramanian, Senior Counsel for Mr.P.T.Ramkumar. :O R D E R A sitting M.L.A. has filed this petition seeking to punish the Inspector of Police and the Commissioner of Police for contempt. 2. The false statement made on oath by the Inspector of Police before this Court on the basis of which this Court ordered stay of the bail order passed by the Sessions Judge, Chennai, in favour of the petitioner, the M.L.A. recently elected, has virtually prevented him from taking oath in the Assembly in the presence of the Speaker. This is the subject matter of the contempt petition. 3. The short facts are these: "Parithi Ilamvazhuthi, the petitioner herein was elected as M.L.A. of the Egmore Constituency, Chennai in the Elections held on 10.5.2001 to the Tamil Nadu State Legislative Assembly. He belongs to D.M.K. Party. There was a large scale violence and attempt of booth capturing on the day of elections. There were violent incidents. The case in Crime No.958 of 2001 was registered against his opposite candidate John Pandian and others for various offences. Similarly, a complaint was given by the opposite party man, one David against the petitioner and others which was registered in Crime No.960 of 2001. The petitioner thereafter filed an application for anticipatory bail before the Sessions Court, Chennai in respect of the offences in Crime No.960 of 2001. However, the same was dismissed on 16.5.2001. On 17.5.2001, the Inspector of Police, the first respondent herein arrested the petitioner. He moved an application for bail before the XIV Metropolitan Magistrate, who in turn dismissed the same on 21.5.2001. The petitioner filed an application before the Principal Sessions Court, Chennai on 22.5.2001 seeking for bail mainly on the ground that he has to attend the Assembly which has commenced on 22.5.2001 to take oath. On 23.5.2001,after hearing the counsel for the parties and City Public Prosecutor, the Sessions Court released the petitioner on bail on some condition. Next day itself, i.e. on 24.5.2001, the first respondent filed an application before the High Court for cancellation of bail and sought for stay. Justice Packiaraj, Vacation Judge mainly on the basis of the ground that the victim is in a serious condition and the petitioner is in police custody granted stay of the bail order and ordered notice. On receipt of the said notice, the petitioner filed a counter on 28.5.2001 pointing out that the statement made by the Inspector of Police in his affidavit regarding police custody is false. On 29.5.2001, reply affidavit had been filed by the first respondent admitting that it is a mistake. On 30.5.2001, the petition for cancellation of bail was dismissed by this Court holding that no ground was made out for cancellation of bail. Only thereafter, he was released on bail. Thus, he was in continued detention from 23.5.2001 to 30.5.2001, i.e. for 7 days. In view of the stay order obtained on the basis of the false statement made by the Inspector of Police, the petitioner was not allowed to come out from jail due to the continued detention for 7 days and thereby, he was prevented from taking oath in the Assembly on 22.5.2001 on which date, the first Session of the Assembly commenced. Aggrieved over this, the petitioner filed the contempt petition on 6.6.2001." 4. The crux of the imputation as against the respondents 1 and 2 is as follows: (1) The Inspector of Police, the first respondent herein in his affidavit seeking for cancellation of bail dated 24.5.2001 made a false statement that the petitioner was in police custody by the order of the Magistrate dated 23.5.2001 and the same would expire on 28.5.2001 and in spite of the fact that this was brought to the notice of the Sessions Court, without even referring to the ground, the Sessions Court granted bail. There was no police custody ordered nor such an objection was raised before the Sessions Court. So, the first respondent is liable to be punished for contempt. (2) The Commissioner of Police owes his responsibility who exercised supervision over the functions of the subordinate Police Officers in Chennai. Without his instruction and guidance, the Inspector of Police would not have moved the High Court by making a deliberate falsehood in his affidavit in order to get the bail order stayed. Since this was done with the active connivance of the Commissioner of Police, the second respondent herein, the second respondent also is liable to be punished for contempt. 5. In elaboration of these two imputations, the arguments were advanced by the counsel for the petitioner at length. 6. Even at the beginning, Mr.Aravind P.Dattar,the learned senior counsel appearing for the first respondent and Mr.I.Subramanian, the learned senior counsel appearing for the second respondent would raise the question regarding the maintainability of this contempt petition. Both the counsel would strenuously contend that under Section 15 of the Contempt of Courts Act, the consent of the Advocate General is necessary and since the same has not been obtained, the contempt petition has to be dismissed in limine. Both would cite the following authorities: 1) STATE OF KERALA v. M.S.MANI (2001(8) S.C.C.82); 2) OM PRAKASH JAISWAL v. D.K.MITTAL (2000(3) S.C.C.171); 3) PALLAV SHETH v. CUSTODIAN (2001(7) S.C.C.549); 4) DR.L.P.MISRA v. STATE OF U.P. (1998(7) S.C.C.379). 7. In reply to the said submission, Mr.R.Shanmugasundaram, the learned senior counsel appearing for the petitioner would cite the authorities in S.K.SARKAR, MEMBER, BOARD OF REVENUE v. VINAY CHANDRA MISRA (1981 S.C.C.(Cri) 175) and P.N.DUDA v. P. SHIV SHANKAR (1988 S.C.C.(Cri.)589) in order to show that in the absence of the appointment of Advocate General, the private party can file a contempt petition and in any event, in this case, the contempt action has been initiated suo motu by the Division Bench of this Court and as such, the question of consent by the Advocate General does not arise. 8. Before dealing with the merits of the matter, it would be better to settle the preliminary issue raised by the counsel for the respondents. 9. The perusal of the records would show that initially, when the application for contempt was filed on 6.6.2001, the Registry did not incline to number it, as there is no sanction from the Advocate General. On the request of the counsel for the petitioner, the matter was posted before the Division Bench to decide about the question of maintainability. When the matter was posted before the Division Bench headed by R.Jayasimha Babu,J., it looked into the papers and summoned the records from the XIV Metropolitan Magistrate in order to verify whether police custody was sought and granted which is the ground for stay. After receipt of the records, the Division Bench perused the same and satisfied that no police custody was sought and granted. Therefore, by the order dated 20.6.2001, the Division Bench took suo motu cognizance of its own and issued show cause notice to both the Inspector of Police, the first respondent and the Commissioner of Police, the second respondent on whose instruction, the first respondent acted. 10. The relevant observation made by the Division Bench in the order dated 20.6.2001 headed by R.Jayasimha Babu, J. would clearly indicate that the Bench found out the prima facie case to conclude that the first respondent-Inspector of Police filed a false statement with intent to mislead the court and the said false statement would not have been made without the knowledge of the Commissioner of Police. Thus, it is clear that the cognizance has been taken under Section 15 of the Contempt of Courts Act (hereinafter referred to as 'the Act') by the Division Bench of this Court suo motu and as such, the absence of sanction from the Advocate General would not stand in the way of deciding the other issues raised in this case. 11. Let us now refer to the submissions regarding the accusation made against the respondents 1 and 2. It would be better to deal with the accusation against both of them and their explanation one by one. 12. According to the petitioner, the Inspector of Police, first respondent herein arrested the petitioner on 17.5.2001. Then, he was remanded to judicial custody. He filed the bail petition before the XIV Metropolitan Magistrate and the same was dismissed on 21.5.2001. Since on 22.5.2001, the Assembly Sessions commenced, he moved before the Sessions Court for bail on 22.5.2001. The only objection raised by the City Public Prosecutor was that the victim who was discharged from the General Hospital, Madras was readmitted in Palayamkottai Hospital. However, the Sessions Court granted bail to the petitioner to enable him to take oath in the Assembly imposing some conditions. In order to prevent the release from jail and to take oath in the Assembly, the Inspector of Police rushed to the High Court and filed a petition for cancellation of bail with false affidavit stating that the petitioner was in police custody by the order of the Magistrate dated 2 3.5.2001 which expires on 28.5.2001 and the same was brought to the notice of the Sessions Court, but without referring to the objection, the Sessions Court granted bail. Only on the basis of this statement through the affidavit, the High Court granted stay of the bail order. The petitioner after verification from the lower Court, filed a counter on 29.5.2001 that no such custody was granted and such an objection was never raised on that ground before the Sessions Court. On 2 9.5.2001, the first respondent filed a reply admitting the same as a mistake and the said mistake was due to oversight. The order passed by Justice Packiaraj on 24.5.2001 would clearly indicate that but for the ground that the petitioner was in police custody on the date of the bail order dated 23.5.2001, which was not taken into consideration by the Sessions Judge, the stay order would not have been passed. Due to the stay order, the release of the petitioner was restrained from 24.5.2001, thereby he was prevented from taking oath in the Assembly. Ultimately, Justice Malai Subramaniam by the order dated 30.5.2001, dismissed the application for cancellation of bail as no ground was made out. The false statement was made with ulterior motive and mala fide intention to detain the petitioner as long as in prison as well as to prevent him from taking oath and participation in the Assembly as an M.L.A. during the first Session of the Assembly. As such, the false statement before this Court was made in order to get a favourable order knowing fully that it is a false one. Therefore, the first respondent is liable to be convicted for contempt. 13. The explanation given by the first respondent with regard to the imputation made against him is as follows: "He never instructed the Government Advocate, High Court that the petitioner was in police custody. He requested him to file an application for cancellation of bail only on the ground that the victim was in a serious condition. The Government Advocate has not drafted the affidavit properly. The order of stay passed by the High Court dated 2 4.5.2001 was not on the basis of the affidavit filed by the first respondent, but on the basis of the wrong submission made by the Government Advocate. Therefore, he is not responsible for the submission made by the Government Advocate regarding police custody. Further, the application for cancellation of bail was moved as against all the accused. Hence, a common affidavit was prepared. At that time, the first respondent informed the Government Advocate that the police custody was ordered for the other accused. But, the Government Advocate made a wrong submission before the Judge inside the Chamber that the petitioner was in police custody. As such, the detention of the petitioner till 30.5.2001 was not on account of his statement made before the Court. He had already admitted the mistake found in the affidavit before this Court and expressed regret. Therefore, there is no contempt." 14. On the basis of the explanation given by the first respondent in his three affidavits which were periodically filed, Mr.Aravind P. Dattar, the learned senior counsel appearing for the first respondent would submit that it was purely a mistake committed by the Government Advocate as the affidavit was prepared as a common affidavit for all the accused and it was wrongly mentioned about the custody which would relate to the other accused. He has also filed written submission elaborating his points. 15.Refuting this submission, Mr.R.Shanmugasundaram, the learned senior counsel appearing for the petitioner would submit that the suo motu cognizance was taken by the Division Bench and on perusal of the records summoned from the XIV Metropolitan Magistrate, the Division Bench found prima facie case for issuing notice to both the respondents holding that false statement was made before the Court, which in turn granted stay of the bail order and in the absence of valid explanation, the respondents are liable to be punished for contempt. 16. We have heard the counsel for the parties and perused the typed set and records. 17. Before dealing with the merit of the explanation given by the first respondent, it would be worthwhile to refer to the order of cognizance by the Division Bench issuing show cause notice to the first respondent, which is as follows: "The information placed before the Court after a preliminary examination, warrants the issue of notice to Rajendra Kumar, S/o S. Alagarsubbu, Inspector of Police (Law & Order), G.1, Vepery Police Station, Chennai, to show cause as to why contempt proceedings against him should not be initiated for having made false statements with intent to mislead the Court and for having made scandalous statements derogatory of the dignity and sanctity of the Courts, in the affidavit dated 24 th May, 2001 filed in Crl.O.P. against the order made by the learned Principal Sessions Judge, Chennai in Crl.M.P.No.6277 of 2001. 2. In paragraph 4 of that affidavit, he has averred thus: "I further submit that the learned XIV Metropolitan Magistrate, Egmore, Madras, the Remanding Magistrate was pleased to order police custody on 23.5.2001 directing the accused to be produced on 28.5.2001 for further investigation i.e., for the purpose of recovery of weapons etc." 3. In paragraph 5 of that affidavit, it has, inter alia, been averred thus: ".....Further it was represented that the XIV Metropolitan Magistrate, Egmore was pleased to order police custody. But, the learned Judge failed to take into account the seriousness of the condition of the victim in the hospital and the order of police custody. But, the learned Judge further was pleased to grant bail to the respondent/ accused with bias and prejudiced approach." Police custody has been referred to not once, but thrice in his affidavit. Imputations are made against the learned Sessions Judge for not having taken note of that alleged police custody of the accused Paruthi Ilamvazhuthi. 4. The said Rajendrakumar had sought to explain away the reference to police custody in his affidavit dated 29th May, 2001 filed in Crl. M.P.No.2974 of 2001, wherein, he has stated at paragraph 5 thus: "I submit that the application seeking police custody of other 8 accused was made on 23.5.2001. It was stated so in the affidavit filed in support of the petition to cancel the bail that the police custody was also obtained in respect of the respondent/accused-1 is a mistake by oversight that the respondent/accused-1 is also in it and the same is neither wilful nor wanton." The application made on 23.5.2001 before the learned Magistrate referred to in that paragraph 5 was an application seeking police custody of 5 persons. On the day the application is said to have been made, all of them had been granted bail by the learned Sessions Judge who had granted bail to Paruthi Ilamvazhuthi against which order the Crl. M.P. had been filed. The application filed before the learned Magistrate does not mention the fact that bail had been granted. The Magistrate had not ordered police custody of even those five pursuant to that application. 5. It is, therefore, prima facie clear that the explanation sought to be given for the wrong statement made in the affidavit is also not a tenable or a true one. 6. Even in that affidavit of 29th May, 2001, not a word of apology is said for having made a scandalous statement attributing bias and prejudice to the Sessions Court which allegation had been made solely on the ground that the learned Judge had failed to take note of the police custody that had been ordered in respect of the said Paruthi Ilamvazhuthi. 7. By reason of the false affidavit filed by the said Rajendra Kumar and relying on the same, the learned Judge of this Court had suspended the bail order, as a consequence of which, the said accused's detention was prolonged till that suspension of the bail order was vacated on the 30th of May." 18. The perusal of the order passed by the other Division Bench dated 20.6.2001 would indicate the following factors: (i) Police custody of the petitioner has been referred to in the affidavit filed in support of the petition for cancellation of bail thrice. Imputations have been made against the Principal Sessions Judge for not having taken note of the police custody of the petitioner. (ii) The explanation given in his reply affidavit dated 29.5.2001 in the cancellation of bail petition is that it was a mistake due to oversight. The police custody application has been filed on 23.5.2001 before the learned Magistrate for five persons alone and not for the petitioner. This application does not mention the fact that bail had been granted. The learned Magistrate had not actually ordered police custody for even those five persons on the said date. (iii) So, the explanation sought to be given for the wrong statement made in the affidavit is not tenable and true. (iv) Even in the affidavit dated 29.5.2001, not a word of apology or regret is given for the said mistake. (v) Due to the said false affidavit, the single Judge of this Court suspended the bail order, as a consequence of which, the petitioner' s detention was prolonged for 7 days, i.e. till that suspension of the bail order was vacated on 30.5.2001. 19. In the light of the above observations, we have to see whether sufficient materials are available to find the contemners guilty for the contempt and whether the explanations given by the contemners are satisfactory. 20. Let us first take the affidavit dated 24.5.2001 filed in the High Court by the Inspector of Police,the first respondent herein seeking for cancellation of bail: "4. I further submit that the learned XIV Metropolitan Magistrate, Egmore, Madras, the Remanding Magistrate was pleased to order police custody on 23.5.2001 directing the accused to be produced on 28.5.2001 for further investigation i.e., for the purpose of recovery of weapons etc." 5. I submit that the respondent/accused filed bail petition before the learned Sessions Judge, Chennai in Crl.M.P.No.6277/2001 on 22.5.20 01 and it came up for hearing on 23.5.2001. On my instructions, the learned Public Prosecutor represented before the court that the victim namely David has been admitted in the Government Hospital, Palayamkottai as his condition was serious and as such the accused not to be released on bail in the interest of justice. Further it was represented that the XIV Metropolitan Magistrate, Egmore was pleased to order police custody. But, the learned Judge failed to take into account the seriousness of the condition of the victim in the hospital and the order of police custody. But, the learned Judge further was pleased to grant bail to the respondent/accused with bias and prejudiced approach. I submit that if the respondent/accused is allowed to go on bail, the investigation will be futile and frustrated. Therefore, it is just and necessary to cancel the bail granted to the respondent/ accused." 21. The above wordings contained in the affidavit sworn to by the first respondent would indicate that a specific mention was made in the petition for cancellation of bail that the petitioner was in police custody on 24.5.2001 by the order of the Magistrate dated 23.5.2001. The stay order passed by Justice Packiaraj dated 24.5.2001 also would indicate that the fact that this Court while granting stay took into consideration the fact that the police custody of the petitioner expires on 28.5.2001 was not considered by the Sessions Judge at all. So, the reading of both the affidavit by the first respondent and the order of this Court dated 24.5.2001 would clearly reveal that the statement that the petitioner is in police custody by the order of the Magistrate was taken as a main ground for granting stay of the bail order. 22. The explanation by the first respondent, as indicated above, could be reiterated at this stage: (i) I have not given such instruction to the Government Advocate regarding police custody of the petitioner. (ii) The order of stay was based upon the wrong submission made by the Government Advocate and not on the basis of the affidavit filed by the first respondent. (iii) On 23.5.2001, he moved an application for police custody only for five accused and not for the petitioner. This was informed to the Government Advocate. The Government Advocate wrongly drafted. (iv) Originally, the petitions for cancellation of bail were moved for all the accused. When the common affidavit has been filed for all the accused, this mistake has crept in. But subsequently, it was decided to move an application for cancellation of bail granted to the petitioner (A1) alone. 23. This Division Bench by the order dated 14.8.2001 having found that the first respondent put a blame on the Government Advocate through his affidavit, directed Mr.Raja, the Government Advocate to file his statement with regard to the above explanation given by the first respondent. Accordingly, Mr.Raja, the Government Advocate filed three affidavits on various dates before this Court. 24. It has been specifically stated by him in these affidavits that only on the instruction of the first respondent that the petitioner was in police custody, he drafted the same and after settling the affidavit, it was read over to the first respondent, who in turn admitted the same to be correct and thereafter signed and at that time, both the Assistant Commissioner of Police and the Deputy Commissioner of Police were present. 25. Mr.Raja in all his affidavits did not state that it is a mistake crept in because of the reason that a common affidavit was filed. On the other hand, he specifically stated that the first respondent only gave instruction in the presence of the Assistant Commissioner of Police and the Deputy Commissioner of Police that bail has been granted in spite of the police custody of the petitioner and that therefore, he drafted and settled the affidavit seeking for cancellation of bail for the petitioner alone mentioning that as a main ground. 26. In the light of the statement made by Mr.Raja, the Government Advocate of the High Court, who is sufficiently experienced having worked as a City Public Prosecutor for some years and Government Advocate for number of years in this High Court and as there is no reason to reject his statement, we are constrained to conclude that this explanation