544.

SEBASTIAN M. HONGRAY

UNION OF INDIA & ORS .. . .

Apri( 23, 1984

'[D.A.I)esAI AND 0. CIUNNAPPA REDDY, JJ.]

. . .

 Writ :of Habeas Corpus served on Respondent3 dire.ctlg 1hem to produce_

te t_wo _nanted per.ons-Re.\pondent.i.fail to file .a return bpt exPtdin the reaS<ilt.<J for not producing 1hem-Appropd'ate mr.uf.e of_e-nforci'ng _abedience to a Writ of Habeas Co1pus, explained-Contempt of <..1ourt A_ct, .]971 Sections 2 (a) a1id ·. J (b} Hciv(l onte1npt" and wilful. di obedience~', explained Examplary Cost by way of Compensation ordered under Ru/eh of order KLVII oj Supreme , Court Rules, 1966. · ··

O.n Novmber 24, 1983, the Court by its iudgmen t and .order directed that writ of Habeas Corpus be issued-Though the 1st, 2nd and 4th tesponderJs°"e.re served, .they failed to file.a-re.turn to the _Writ. However 8.re, urn on affidavif by one Aja.i Vikram Singh Dirctor, .Ministry of Defence was filed on 12.12.1983 expr.essing their inability to produ.ce the two nS:t'ned officets duo to circutristance! be}tond their control arid thCir failure tO trace the~ ev.en with. the. assistance of. Cent.raI Bureau of Jiives tigati<i.J.

This was supported by a copy of the report by the Dy. Inspector GeneraJ-0f i'olice (s) .

. Making the Rule absolute .the Court,

.HELD :i. 10 complianc~ whb thC mandatory direction contained ii:t the Writ of Habeas Corpus, the pers.on to whom itis dir"eced is .under a legal .obiigation to produce 1be body cif the. person alleged to be l!nlawfully detained.before the Court on the day specified and to mak~ a form.al returri to the wri.t.

Here, uch a Writ' has been issued.and there.bas be"en fi!Ure to p'rodu-; e the .missing persons in respect of whoni _writ. js isstieid and to file the re.tur.n as mandated by law. [547B.F] . · ·

.z:l 'fh"e Contempt ·or Courts Act,. 19·11 define_s , colltmpt of court•. i.n Sec. 2(a) io mell 'civil contempt ot criminal.con.teinpt'. 'Civil Contept' is_-defined in Sec. 2(b) to mean. wilful disobed_ience: t.o. any judgment decree~ direction, order, .writ or ot.her. process ()fa Court or wilful breach .. of.an undert.aking .. given to a c.ourt' .. Wilful .disObedince .. to awr.it issud by tne Court constitutes civil conte'!'pt. [547H; .548A]

2:2 Mere failure to obey th_e Writ inay not.constitut.e civil contempt depending upOn th_e facts and circumStanCes Of.the Case. Bt1t wllful disobe .. dierice-to a writ issµed -by fl. Court constitute~ .. civil .contem.pt.

Again it is wen-Settled that tbeappropriate mode .of cnfd"rciflg obeditnce :t.o a writ of

ln\be~S COtPll;, is by. om, mitt~J for ontempt.

A, COffili\itt~\ O(der mari?~ •

' r-.· •

) ..

• •

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s. M. HONGRAY v. UNiON 545

t-i:made ·agl1inst a person 'Who inteniionally makes a false return to a writ <'l(

habea!" corpu~ but an unintentional misrepresentation an a return is not a grouo4 for committal. [S4~BC]

2:3 The-- view of ibis Court as expressed ip the .main judgment 'clelrly indicates that \he assertion of respondents I. 2 and'4 that C. Daniel

" .

and C. Paul left P.hungref camp where 21st . Sikh Regiment were stationed B is not correct and that to avoid _responsibility flowing from the -mysterious dH;&j)pearance of C. Daniel and C. Paul an -atteµipt as mad¢ to .suggest that they .bad left alive , in the COIT\pany of their compatriots. On that con-clusion one can say that 1:here is a wilful OisobedieOce to the writ _or ·:tflabeas corps by misteadillg the court by pr~.seDfing a djstortcd versio11.of facts not qorne out by the rec.ord .. It is thqs established. that th~ respondents

t, 2 and 4 have committed civil .contempt by .their wilful disobedience to

.. C the writ. [548DE]

3: 2 In the facts and circumstances of the ca.se, eeping in view the

;;- t<irture,· the agqny and the mental oppression throu8; h which Mrs. C.

Thingkhuiia, wife o(Sbri C. Daniel and Mri .. C. Vangamla, wife of Shri \- C. Palil had to pa'.ss and they being the -proper applicants, the f'oxma(

application :bein'g by Sebastibn M. Hongray> the c_ourt considered ·t. proper "' and directed that as a measure of exempla.rJtt costs as is perniisible in such , cases,· resPoodents Nos. 1 (lnd :i -shalT pay Rs. 1 lac to each of the afore .. mentioned two women ); Vithin a period of four weeks frQD) April 23, 1984. . . . .

. [5480-H; S49A) . . .

4. Further adjourning the matter to enable.the resp0ndcntsto trace 'or locate the tWo missing. pt; rsons is to shut the e¥es to\tl?e reality and to

pcrsue a mirr.ge.

The two officers have not met their:. tragic end in an F

eDounter as is usually claimed and the only pos'.iiblc inference that can be drawn from circUmsraoce of the case is that both ofthe_ll1 m_ust have met ,--ari unnatural death. Prima facie, it W(luld be a_o offence of murder. Who Is

'fildividuallYor collectively the Purpetrator'of the crime of is responsible ) , Jfo:t: their c; Jilappearance will h_ave .. to be"· determined by a proper, thorough ?•·and r~SP, onSible police , investigation.

It is nt necessary to .start -casting a lloubt on anyone or any particular perspn. But p•ima facie there is material G On record .. to reach an affirmative conclusion that botb Sbri c ... DaBiel and 'Sltri C. Paul are' not alive and have met .an uQnatutal _-death. And the

tJfiion of In.dia cannot disown the responsibility in this behalf. [S49B•E] . \ - - '

. " (Tho Court is; uod a writ of madamus to th6'!ll1!Jerintedent' of Po.lice, 1Ukbml, Manipur S1ate to.tfC.at ELll the p_apers.in the Writ of Habeat1 Corpus -'as:""'informS:tion of a cognizable offence aqd to commence inve'.stiga_tion as" ff

0 preacrlbed by jb~ relev~t provisions of the Code of Criminal Procedur~) . , . .

. [S49E-F]

j .. •

•'546

SUPRllMll COURT REPORTS [1984] 3 s.C.\l.

c ' 0RIGiN>.L JuR1so1c110N : Writ Petition (Criminal) No.148. of 19~3.

. B

.(Under article' 32 of the Constition of India)

.Ms. Nandita Hak!iar and C.S. Vaidyqnatha11 for the Petitioner.

Ms: A. Subhashini for Respondent . . '

Mrs. Urwitla Kapoor for Respondent.

,. V.C. Mahaj4n, P.N. Purl S.K. Mehta and Balbir Singh Shant for Respondent. · ,

' ' The Judgment of the Courl was delivered by

DESAI, J. 0n Nov. 24, 1983, the Court by its. Judgment and order directed that a writ of habeas corpus 'be issued, The qperative portion Of the order reatls as under : . . . , .

#'Accordingly, this petition is allowed and we direct that a writ of habeas corpas be iss11ed to theresp<)ndents I, 2 nd 41:ommanding them to produce C. Daniel, 'retired Naik Subedar of Manipur Rifles and Headmaster Of the Junior High School of I; fuining Village and C. Paul, Assista'Jlt Pastor ofHuin'g Baptist hurch, who wre taken to Phurtgrei Camp by the jawans of 21st Sikh Regiment. on March' 10, 1982 before this Court on Dec. 12, 1983 and file the return.'' • •

'i'he R-egistry issued the wdt nd served the same upon first, respondent-Union of India, second respondent-Secretary, Ministry ofHc>nie Affairs and 4th 'respondentcomma'ndant, 21st S.ikh Regi- . ment, Phungrei Calilp. Pursuant to the writ, it was obligatory

11pon respondents I, 2 and 4 to file the return and' to produce C; Daniel and c .. Paul. A retµrnon affidavit by one Ajai Vikram Singh, Director, Ministry of Defence dated December 9,, 1983 was produced in the Court on December 12, 19S3. stating therein "that with all the will and the best efforts, th.e resp~>ndents are Unl)ble to produce S/Shri C. Daniel and C. Pail! for the reasons set out in • \. . . the affidavit and crave for indulgence of the Hon'ble Court for their inability to produce the abovenamed individuals due to circumstances beyond their control." . It was• ritetated that c .

Daniel an4 C. Paul were not in thecustody or controi of respondent& l., 2, and 4, To thi~ r¢turn several alfidavi~ <Ind Pteiles wort . . .. . .. - '

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\ s. M l!ONGRAY v. UNiON (Desai; J.) 547

annexed saying that the Anny authorities conducted an extensive search for tracing C. Daniel and C. Paul but nothing Tniitful has been achieved One Surendra Kumar, Deputy Secretary, Ministry or Home Affairs had also filed the return stating that C. Daniel and C. Paul are neither in the custoily or confrol o( respondent No. 2.

It was stated that Central Bureau of Investigation (CBI for short) r have been directed to eonduct enquiries' to locate the aforementioned two persons and to 'intimate the result thereof. The matter was adjm+rned to enable the respondents to pursue their efforts.

Nothing 'fruitful .came up even though 'the'matter was twice adjcurned at the T-equest of !earned AttornQy General who entered appearance on behalf of respondents Nos. 1, 2 and 4. The writ petition wa~ 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 if was stated that 'the fieid enquiries made' by the CBI and the efforts made to locate the two persons • have yielded no results .and it has-not been possible tO locate Sri Daniel and Sri Paul', The report was submitted by the Dy.

Inspector General of-Police (S). '

It is now necessary to deal with tilt failure of respondents I, 2 nd 4 to file the return to the_ writ ofhabas corpus. After a , preliminary enquiry and after hearing tho responents and after negativing their contentions that Shri C. Daniel and Shri C. Paul . were !lot seen last alive. in the custody or the 4th respondent, the Court directed to issue a writ of habeas corpus. The 'writ of habeas corpus w~.s issued and was served on respol)dcnts !, 2 and 4. In compliance with the •mandatory direction contained in the writ of habeas corpus, the 'person 'to whom it is direct rd is under a legal obligation to produce the body of person, alleged to be unlawfully detained before the Court on the day specified and to make a formal return. to tbe writ. (1} 6uch a writ has been issued and there has been failure to prod11ce the missing persons in respect 'of .whom writ is issued and to file the 'return as m1mdated by law:

The next question therefore, is : what is the appropriate mode of ¢nforcing obedience to a writ of habeas corpus ? •

The Contempt of Courts Act, 1971, defiries 'contempt of court' in Sec. 2(a) to. mean 'civil contempt ot criminal contempt'. 'Civil con-

. (!)· Halsbury's Laws ofEngland, Fourth Edition, Vol. 11 para. 1492 at

• page 791,

ff,

SUPREME (:OURT REPORTS (.1984] 3 s.c. Ji.,. ,

, A

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tempt' is defined 'in ec .. 2(b) to mean wilful di; obedience to any judgment decree, direction, order, writ or. other process of a Court or wil fnl breach 'of an undrtaklng.gi\len to a Court.' Wilful disobedience to a. writ issued by the Court constitutes civil contell)pt: The question is : whether this disobedience is Wilful ? Mere failure to olley the writ may not corrstitute civit contempt depending .upon the facts and circumstances of ihe case.· Butwilful disobedi_ence to.a, writ issued by.a Court constituts civil contempt; Again it is well' i ' s.ettled that 'the appropriatu ...\]iode' of enforcing :obedience to a wtit .f of habeas corpus is by committalfor.contemP.t.'. A committal order . may be m11de against a per&on '. who intenilonally makes a false return to a writ. of habeas corpus, 1lut11n •unintentional misrepresen: ~. • tation on a return is .not a ground f!)r .committal.'{')

.,...,..t The view of this Court a's. y:Ipfessed in the main judgirient '. clearly indicates that the ai;.rtion of respondents t, 2 al)d 4 that .._ • C. Oaniel and C. Paµ! left Phu, i}grej, Camp .where 21st Sikh .· Regi 7-· ,. ment were stati_oneq js not correct aaid. that to avoid responsiliili~ 'flpwing from the mysterious 4isappeara11ce of c::oaniel and c . .P~.IJi

an attempt . was• . made to suggest that tjiey- /lad left alivci in J)l.e • • company of their compatriots.· J'he Court has rejected this submis

sion as \lntenable fllld U9~9r.\'l'ct. Qn that con., tusion one can 111\Y that there is a wilful 4i$obe<lie!.!.ce to the )Vrit .. or babea~ corpµs -by ' misleadin~ tJie con rt .. by preSel)ting a Q, isjorted V.erion of facts :b.jl(

borne out by the rotd:.-It is tp\lJ stablished, that. the respond~!!l;•

I.· 1, 2 and 4 have. col}lmitted .dviC: contempt by their wllfUI diso, Q~· !' . diene to the wri!· '

Civil contempt is punishable with jmprisonment as well as fine. .

In a given case, . tb.~ .co'ui:tniay a~ penalise the party in con tempt . by ordering him to pay the costs of th~ application. <2l A fine ca~ also be imposed upon the contemnor. t ' . ' ' . . .

Now in the facts and circumstances of the case, we do not propose to impose imprisonment' nor any amount as and by way of fine but. keeping in view 'the' torture, . the agony and the mental oppression through which Mrs. C. • Thingkhuila; wife of .Shri c; Daniel and.• Mi:s. C. Vangamla, wife of Shri C. Paul had to p~. and they being the proper applicants, the i'<;>rmal app, lication being by Sebastian M. Hongray, we direct that as a measure of exem

(1) ibid para 1497

(2) Halsbury's Laws of Eneland, l'ollrtl> Ellitiop, VoJ.' 9 para 100

at p. 61. .

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• s. !.! .. ~Ol; GRAY v. uNioN (Dsai, j,) . 549

 p!ary costs as is permissible ill such. cases, respondents .Nos. 1 'and 2 shall pay Rs I 'lac. to' each of llie aforementioned: two women within a period of four weeks from today.

•A query was posed to the learned Attorney General about the further step to. be taken .. It was made clear that further adjourning 'r the matter to enable the respondents H> trace or locale the two ·

missipg persons is to shut the. eyes to the reality and to p_nrsue a mirage. As we are inclined to direct regjstration of an offence and , an investigation, we express no opinion as to what fate has befallen to Shri C'. Daniel and Shri C. Paul, tlie missing two persons in res- . pect of whom the writ of ha!Jeas corpus was issued save and except saying; fhat they have not met their tragic end in an encounter as Is

usually claimed and the only possible inference that can be drawn from circumstance already discussed is that b.oth of them must have ""1' met an unnatural death. Prima facie, it would be an offence of

 murde~. Wh.o is individually or collect1vely the purpetrator of the crime or is reonsible for their disappearance will have to be deter-. ' mined by a proper, thorough an'd responsible poJi.ce investigation.

It is not neeessary to start casting a doubt on anyone or any particular person. But prima facie there is material on record to reach an. affirmative conclusion that both Shr1 C; Daniel and Shri C. Paul

are not alive and have met an unnatural death. And the Union of ,..( India cannot disown the responsfoility 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 (Judiciali shall forward aU the pap.ers of the case ace:ompanied by a writ of . manda.mus to. the Superintendent of Polie, Ukhrul, Manipur State to be'treated as' information of a cognizable offence and to commence i1westigation as prescribed by the r~Ievant provisions of the Code of Crimiital .procedure. "

S. R.

Rule made absolute •

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