1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (CONTEMPT JURISDICTION) FRIDAY, THE 10TH DAY OF JUNE, 2011 THE HON'BLE MR.JUSTICE T.MATHIVANAN CONTEMPT PETITION NO.1186 OF 2009 ********* K.Shanmugam, S/o.Kuppusamy, No.278,Kodivery Main Road, Komarapalayam, Sathyamangalam Taluk, Erode District. .... Petitioner Vs. 1.K.Kamaraj The Deputy Superintendent of Police Avinashi Coimbatore District 2.M.Deivandran The Inspector of Police Avinashi Police Station Avinashi, Coimbatore District ..... Respondents Contempt Petition praying that this Court be pleased to commit and punish the respondents herein for violating the order of this Hon'ble Court dated 07/08/2007 and made in Crl.O.P.No.8771 of 2007. The above Contempt Petition came up on 25/11/2010 before this Court for hearing in the presence of Mr.MA.P.Thangavel, Advocate for the petitioner herein; and of Mr.R.Muniapparaj, Government Advocate(Crl.Side) for the respondents herein; and upon reading the petition and https://hcservices.ecourts.gov.in/hcservices/ 2 affidavit of K.Shanmugam, filed herein; and the Counter Affidavits of K.Kamaraj, filed herein; and having stood over for consideration; the Court made the following order:- This petition is filed by the petitioner under Section 11 of the Contempt of Courts Act, to punish the respondents for having violated the Order of this Court dated 07.08.2007 and made in Crl.O.P.No.8771 of 2007. 2. The excerpt of the facts, which is absolutely necessary for the disposal of this petition is detailed as under: The petitioner herein is the father of the deceased S.Sridhar, who was working as a Technical Teacher in Annur ITI at Annur in Coimbatore District from the year 2005. That on 22.02.2007, at about 09.30 a.m. he had been to attend the annual day function of his institution. At about 01.30 p.m. one of the teachers, who is the close friend of the deceased S.Sridhar, rang upto the petitioner and informed that his son was not well and admitted in the Hospital. When the petitioner along with the family members rushed to the Hospital he was informed that his son was dead. 3. A complaint was obtained from the daughter of the petitioner by the Sub-Inspector of Police, attached to the https://hcservices.ecourts.gov.in/hcservices/ 3 Annur Police Station and a case in Crime No.58 of 2007 under Section 174 of the Code of Criminal Procedure was registered. 4. The petitioner and his family members developed suspicion on the death of his son, because the petitioner and his family members were able to notice injuries on the both the legs in grievous nature. The Police Department had not taken any effective steps to find out the reasons as to what happened to his son. In this connection, the petitioner had made a representation on 02.03.2007 to the Superintendent of Police (West) Zonal, Coimbatore, requesting to reinvestigate the issue. Since there was no response to his representation, he had also made another representation on 13.03.2007 before the Commissioner of Police, Coimbatore, besides the representation made to the other higher ups. 5. Being annoyed and goaded by the reckless act of the Police Department, the petitioner had filed the petition in Crl.O.P.No.8771 of 2007 before this Court, after invoking the Proviso to Section 482 of the Code of Criminal Procedure seeking transfer of all the records relating to the case in Crime No.58 of 2007 from the file of the Inspector of Police, Annur Police Station to the file of https://hcservices.ecourts.gov.in/hcservices/ 4 the Central Bureau of Investigation or any other agency, which can investigate the matter in an effective manner. 6. This Court, on considering all the facts and circumstances, had passed an Order on 07.08.2007 “Directing the Inspector of Police, Avinashi Police Station, Coimbatore District to reinvestigate into the matter after receiving the entire case records from the respondent Police. The respondent Police was directed to send the entire records to the Inspector of Police, Avinashi Police Station, Coimbatore District.” It was made clear that “the Assistant Commissioner of Police, Avinashi Region, Coimbatore District should supervise the investigation made by the Inspector of Police, Avinashi Police Station, Coimbatore District.” 7. Despite the specific direction by this Court to reinvestigate the case, the respondent Police had flouted the Order of this Court on the ground and till date no action has been taken for investigating the suspicious death of the petitioner's son. Hence this petition. 8. In this connection, the learned counsel for the petitioner would submit that the respondents herein are liable for contempt of this Court for wilful disobedience https://hcservices.ecourts.gov.in/hcservices/ 5 of the Order of this Court. The learned counsel has also maintained that the petitioner, after passing of the above said Order by this Court, had sent a representation on 10.09.2007 along with the acknowledgement explaining the situations and need for the immediate action of the respondents herein. Even after the representation dated 10.09.2007, the petitioner had approached the parties concerned on several occasions, but there was no fruitful result, which the petitioner was able to get. Further, the learned counsel would submit that the petitioner was left with no other option excepting to knock at the doors of this Court to punish the respondents for the serious disobedience. 9. In support of his arguments, the learned counsel for the petitioner has placed reliance upon the decision in C.Elumalai and others Vs. A.G.L.Irudayaraj and another, reported in 2009(2) CTC 650. In this case, a contempt petition was filed before the Hon'ble Supreme Court of India for the violation of the Order passed by the Supreme Court. It was alleged that by Order dated 19.03.2007 in S.L.P(C) No.19924 of 2006, the Supreme Court had directed that the High Court which was considering C.S.No.597 of 2006 in the original side shall make an effort to dispose of the Suit within a period of six months from the date of https://hcservices.ecourts.gov.in/hcservices/ 6 receipt of the order. While passing the Order a direction was also given that till the completion of the Suit the parties shall not create any third party right. It was the case of the petitioners that in clear violation of this order, third party rights have been created. Several affidavits have been filed by the respondents 1 and 2. It was contented on behalf of the petitioners that there had been conscious violation of the orders passed by the Supreme Court and that the unconditional apologies offered at various stages are intended to cover up the violation. 10. After hearing both sides, a Division Bench of the Hon'ble Supreme Court of India headed by His Lordship Hon'ble Dr.Justice ARIJIT PASAYAT has held that Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the Court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward. 11. It is also held that apology is not a weapon of defence to purge the guilty of their offence nor is it intended to operate as universal panacea, but it is https://hcservices.ecourts.gov.in/hcservices/ 7 intended to be evidence of real contriteness. As was noted in L.D.Jaikwal v. State of U.P. 1984(3) SCC 405: “We are sorry to say we cannot subscribe to the “slap-say sorry-and forget” school of thought in administration of contempt jurisprudence. Saying “sorry” does not make the slapper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and nor from the pen. For it is one thing to “say” sorry-it is another to “feel” sorry”. 12. While writing the Judgment, His Lordship Hon'ble Dr.Justice ARIJIT PASAYAT in Paragraph No.11 has made reference to the decision in Anil Ratan Sarkar and ors. v. Hirak Ghosh and ors., 2002 (4) SCC 21 and observed that this Court held that the Contempt of Courts Act has been introduced in the statute-book for securing confidence of people in the administration of justice. If an order passed by a competent Court is clear and unambiguous and not capable of more than one interpretation, disobedience or breach of such order would amount to contempt of Court. There can be no laxity in such a situation because otherwise the Court orders would become the subject of mockery. Misunderstanding or own understanding of the https://hcservices.ecourts.gov.in/hcservices/ 8 Court's order would not be a permissible defence. It was observed that power to punish a person for contempt is undoubtedly a powerful weapon in the hands of Judiciary but that by itself operates as a string of caution and cannot be used unless the Court is satisfied beyond doubt that the person has deliberately and intentionally violated the order of the Court. The power under the Act must be exercised with utmost care and caution and sparingly in the larger interest of the society and for proper administration of justice delivery system. Mere disobedience of an order is not enough to hold a person guilty of Civil Contempt. The element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act. 13. On coming to the present case on hand, as rightly held by the Hon'ble Supreme Court in the forgoing paragraph, the burden rests upon the petitioner to establish that the respondents have deliberately and intentionally violated the Order of this Court dated 07.08.2007. 14. In this connection, the learned Public Prosecutor appearing for the respondents has submitted that a complaint was lodged by the father of the deceased alleging https://hcservices.ecourts.gov.in/hcservices/ 9 that his son viz.the deceased Sridhar had participated in food festival organised by the school, in which prizes were given to the person, who completed eating, quantity of the food given to them, within a stipulated time. During the competition, it is learnt that this deceased had also participated as one of the participants and in the middle of the competition, he fainted and later he was taken to the hospital, where he was declared dead. Immediately, after his fainting, the school authorities also made attempts to give first aid and they also co-operated to take the deceased to the hospital. 15. Further, the learned Public Prosecutor has also submitted that the Doctor, who had conducted post-mortem on the dead body of the deceased had opined in the post-mortem report that “the deceased would appear to have died of asphyxia due to entry of food particles in the trachea and both braonchi and at the time of autopsy, ethyl alcohol was detected in the visera”. 16. The learned Public Prosecutor has also maintained that from the statements of the witnesses, who were examined under Section 161(3) Cr.P.C. it was reliably learnt that there was no premeditation in the offence and it was only because of the participation of the deceased https://hcservices.ecourts.gov.in/hcservices/ 10 Sridhar in the eating competition. He has submitted further that the first respondent Deputy Superintendent of Police, Avinashi, Coimbatore District took up further investigation in obedience to the direction of this Court and had completed the investigation and since the case was not altered into other I.P.C. offences, it was referred to the Executive Second Class Magistrate (Tahsildar), Avinashi for compliance. He has also submitted that the Executive Second Class Magistrate (Tahsildar) vide his dated 15.11.2009 in reference Na.Ka.7210/09/A1 had taken the case on his file and subsequently it was closed. He has also contended that the respondents were having highest regard for the High Court and its directions and that the respondents were always obeying and complying with the directions of this Court and that they never committed any conscious disobedience to the Order of this Court. 17. This Court has carefully considered the submissions made on behalf of both sides. This Court has also gone through the entire CD file and the final report filed by the second respondent before the Executive Second Class Magistrate (Tahsildar), Avinashi. In the post-mortem report dated 23.02.2007, the following external injuries were said to have been found on the dead body of the deceased Sridhar: https://hcservices.ecourts.gov.in/hcservices/ 11 Laceration of 4 X 2-1 c.m. with surrounding abrasion of 1 c.m. seen over front of left big toe and 3 X 1-0.5 c.m. with surrounding abrasion 0.75 c.m. seen in front of left second toe wound vistrideep. No evidence of any internal injuries. 18. It is also stated in the post-mortem report that trachea contained few food particles in white colour. Both braonchi contained few food particles. Stomach contained 200 gms., of partially digested food particles. No specific smell and mucosa congested. It also appears that viscera were preserved for chemical analysis. 19. After obtaining chemical analysis report, a final report was given by Dr.Menakasekhar, Tutor in Forensic Medicine, who conducted autopsy and stated that the deceased would appear to have died of asphyxia due to entry of food particles in the trachea and both braonchi. At the time of autopsy, ethyl alcohol was detected in the visera. 20. In the final report, it is stated that enquiry disclosed that when Sridhar was hurriedly taken to Government Hospital Annur through a two wheeler in triples, his left leg and foot came in touch with the road portion resulting in abrasion. It is also stated that the injuries https://hcservices.ecourts.gov.in/hcservices/ 12 found on both fingers would not lead to death. During the course of investigation, Inspector had examined the complainant parents of the deceased and recorded their statements, in which none of them had voiced foul play over the death of the deceased. 21. It is pertinent to note here that in the post- mortem report, it has been stated that the fingers and toe nails were bluish. In this connection, a questionnaire seemed to have been given to the Doctor, who had conducted autopsy over the dead body for which the Doctor had answered that the reason for bluish colour over nails was mechanical inference due to chocking of food particles with passage of air into the respiratory tract, which produced lock of oxygen in the inspire air and hence the oxygen contents lowed content of blood increased in the blood stream caused bluish colour over the skin of nails. He has also answered that this type of change is known as droxic anoxia. 22. Ultimately, the Investigating Officer had filed a final report on 14.02.2008 with the conclusion that the death of the deceased was absolutely due to entry of food particles in the trachea and both bronchi and thus no foul play is suspected over the death of the deceased Sridhar. https://hcservices.ecourts.gov.in/hcservices/ 13 23. Section 11 of the Contempt of Courts Act, 1971 (70 of 1971) confers jurisdiction upon this Court to inquire into or try a contempt of itself or of any Court subordinate to it. 24. Section 12 of the Contempt of Courts Act, 1971 (70 of 1971) contemplates the punishment for contempt of Court. As observed in Perspective Publications v. State of Maharashtra, A.I.R.1971 S.C.221., the summary jurisdiction to punish for contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice. 25. It is settled proposition of law that if an Order passed by the competent Court is clear and unambiguous and not capable of more than one interpretation, disobedience or breach of such order would amount to contempt of Court. It is also a settled proposition of law that the power to punish a person for contempt is undoubtedly a powerful weapon in the hands of Judiciary but that by itself operates as a string of caution and cannot be used unless the Court is satisfied beyond doubt that the person has deliberately and intentionally violated the order of the Court. https://hcservices.ecourts.gov.in/hcservices/ 14 26. Like any other organ of the State the judiciary is also manned by human beings, but the function of judiciary is distinctly different from other organs of the State, in the sense its functions is divine. Today judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock at all the doors fail people approach the judiciary as the last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth. Because of the power he wields a judge is being judged with more strictness than others. Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary must take utmost care to see that the temple of justice does not crack from outside, which will lead to a catastrophe in the justice-delivery system resulting in the failure of public confidence in the system. This dictum is held in Tarak Singh v. Jyoti Basu, (2005) 1 SCC 201 : AIR 2005 SC 338. 27. To constitute an offence under Section 12 of the Contempt of Courts Act, 1971 the element of willingness is an indispensable requirement to bring home the charge within the meaning of the amplitude of Section 12 of the Contempt of Courts Act, 1971. https://hcservices.ecourts.gov.in/hcservices/ 15 28. On coming to the instant case on hand, this Court does not see any adequate reason that the respondent have deliberately and intentionally violated the Order of this Court dated 07.08.2007 and made in Crl.O.P.NO.8771 of 2007. Mere disobedience of an order is not enough to hold a person guilty. 29. Having regard to the observations made above and on considering the submissions made on behalf of both sides and on perusing the related materials available on record, this Court is of view that the petitioner has miserably failed to establish the allegations made against the respondents. 30. In the result, this Contempt Petition is dismissed. No costs. Witness the Hon'ble Thiru M.YUSUF EQBAL, The Chief Justice of High Court at Madras, as aforesaid, this the 10th day of June, 2011. SD/- DEPUTY REGISTRAR (OS) //Certified to be true copy// Dated at Madras this the day of 2011. COURT OFFICER (O.S.) From 25th Day of September 2008 the Registry is issuing certified copies of the orders/judgments/Decrees in this format. https://hcservices.ecourts.gov.in/hcservices/ 16 Cns. CONTEMPT PETITION No.1186/2009 THE HON'BLE MR.JUSTICE T.MATHIVANAN ORDER DATED : 10/06/2011 FOR APPROVAL :06/07/2011 APPROVED ON :14/07/2011 Copy to: 1.The Deputy Superintendent of Police, Avinashi Coimbatore District 2.The Inspector of Police Avinashi Police Station Avinashi,Coimbatore District 3.The Public Prosecutor, High Court,Madras – 600 104. https://hcservices.ecourts.gov.in/hcservices/