JUDGMENT
P.S. Mishra, J.
1. A Bench of this Court ordered to what a proceeding under the Contempt of Court Act, 1971 and accordingly directed to issue notices to the Opposite party namely Sri Kumar Nand Kishore Singh, Assistant Jailor, Khagaria Sub-jail (2) Sri R.K. Pathak, Superintendent, Jail, Khagaria Sub-jail and (5) Sri J.T. Tripathi, Civil S.D.O. Khagaria to show cause. The said three contemners have since appeared and shown cause.
2. Krishna Kumari @ Sangita Rajor (girl) was seized to be relased on bail by Sri A.G. Dutta, Additional Chief Judicial Magistrate, Khagaria in case arising out of Khagaria C.B.P.S. Station Diary Entry No. 317 of 25-4-80. The order to release reached the opposite party Nos. 1 and 2 in the afternoon on 9-S-80 they, however, did not release Sangita but instead on 10-5-1980 the opposite party No. 3 ordered to keep her in the jail for a week and then must be sent home. She was actually detained in jail in the cover of the said order of the S.D.O. and after about ten days i.e. 21-5-80 (sic.) Patna City, She was release 1 from the said after Care was only on 6-3-83.
3. At about 7.00 p.m. on 9-5-80 the opposite party No. 1 and 2 came to the residence of Sri Dutta and pressed him to give them in exhibit an order authorising the detention of Krishna Kumari @ Sangita in jail custody Sri Dutta declined to give them any such order and told them to the custody with the release order- Opposite party Nos. 1 and 2 then asked him to direct them to the Civil S.D.O. (Opposite Party No. 3) but to dutta detention view out on 10-3-80 Krishna Kumari’s father Jagdish prasad (since deceased) filed a petition in court of (sic.) alleging, inter aha, that his daughter was not released inspite of the release order. Shri dutta called for a report from the Jail Superintendent and the Jailer by 12.5.80. If as per the order of the court Krishna Kumari had been released from jail custody and if not circumstances under which she had not been released from jail custody. The opposite party Nos. 1 and 2 submitted the report to Sri Dutta by sending a letter pertaining attested copies of letter No. 760, dated 10-5-80 of Civil S.D.O. Khagaria and letter No. 194, dated 9-5-1980 of Jail Superintendent, Khagaria Sub-jail, the former aforesaid to them and the letter addressed to the Civil S.D.O. Khagaria m their reports, they alleged that they had gone with a letter of the Assistant Jailer to Sri Dutta’s residence on 9-5-1980 to inform him about the unwillingness of Krishna Kumari to move out of the jail as she apprehended danger to her person and that as advised by Sri Dutta they went to the Civil S.D.A. was obtained him oral order on 9-5-1980 followed by a written order view letter No. 760, dated 10-5-1980 authorising them to keep her he jail in their safe custody. In his order recorded in case No. 7500/80 State custody Sangita Kumari, Sri Dutta questioned the correctness of the ascertain that the opposite party No. 1 and 2 had come with a letter from the opposite party No. 3 on 9-5-1980 at 7.00 p. m. and that he directed them to me in the Civil S.D.O. The order-sheet has disclosed as noticed above, that when opposite party Nos. 1 and 2 visited him they wanted him to give in writing order authorising the detention of the victim woman inspite of the release order learned from the court and received by them and when he declined, they went away. On 13-5-1980 Jagdish Prasad, father of Sangita @ Krishna filed a petition in the court of Sri Dutta to start a proceeding for contempt of court against the officer concerned. On 16-5-1980 Sri Dutta ordered “Time it appears that there is wilful disobedience to the order of this Court by the Assistant Jailer Kunwar Nand Kishore Singh and the Jail Superintendent, Khagaria Sri H. M. Paswan and at such they appear to have committed contempt of court. Further it appears from the perusal of the records that Sri J. N. Tripathi, Civil S.D.O. Khagaria went inside the sub-jail, Khagaria in the night and took the statement of the accused in writing and gave oral direction to the Jail Superintendent and the Assistant Jailor, Khagaria Sub-jail on the same night and the written directions on the following day authorising them to keep the accused in the jail to their safe custody as contained in letter No. 750, dated 10-5-1980. This act of the S.D.O. is without jurisdiction and appears to have lowered the authority of the court interfered with the due course of judicial proceeding pending in this Court and obstructed the administration of justice and as such he appears to have committed contempt of court”. Accordingly he issued notices to the Jailor and the Jail Superintendent of Khagaria Sub-jail and also the Civil S.D.O. Khagaria to show cause till 24-5-1980 as to why a reference should not be made to this Court for starting a proceeding of court against them.
4. Before adverting to the defence, I may state that the civil S.D.O. opposite party No. 3 took the order of Sri Dutta as an affront and in one of his orders, dated 16-7-80 which is available in the guard file, he has said “I also went through the copy of the order-sheet, dated 16-5-80 of the case No. 7702/80 in the court of A. C. J. M. Khagaria in which remarks have been passed which are derogatory to the S.D.O. Khagaria and to the order passed by this Court in the instant case. For instance it has been observed by the learned A. C. J.M. that the order of the S.D.O. was without jurisdiction, illegal and anyhow managed from him by the Sub-jailor in a bid to cover illegal detention….. In the same order he has further recorded ‘Thus, it appears that by passing such derogatory and defamatory remarks the learned A. C. J. M. has severally damaged the honour, prestige and authority of the S.D.M. and his court. Further, it appears that by issuing show cause notices to jail authorities against their complying with the order of S.D.M. court the learned A. C. J. M. has without any jurisdiction interfered in the execution of an order of the S.D.M. court and has, thus learned the authority of this Court and obstructed and administration of justice…. In view of these facts it appears necessary to me to ascertain from the learned A. C. J. M. the reasons and circumstances under which such derogatory remarks were used against the order of the S.D.M. and such intereference was caused in its execution. Let, therefore a notice be issued to the A. C. J. M. Khagaria to show cause till 20-7-80 as to why a reference should not be made to the Hon’ble High Court for initiating a proceeding of contempt of Court against him.
5. The contemners have filed lengthy petitions showing cause but put forward a common case that in the afternoon of 95-80 when the release order was received in the sub-jail Sangita was released by the opposite party No. 1 at 4.20 p. m. But a large crowd had assembled at the outer gate. Jagdish Prasad her father had also arrived. All of a sudden Krishna Kumari refused to move out of the outer jail gate. At that time the Assis-stant Jailor opposite party No. 1 was incharge. The opposite party No. 2 arrived at the jail at 5.45 p. m. We also enquired from Krishna Kumari but she vehemently refused to act even upon his persuation to move out of the outer jail gate. The opposite party No. 1 and 2 decided to inform the Additional Chief Judicial Magistrate about the situation. As it was not the court hour, they not the Additional Chief Judicial Magistrate at his residence and handed over letter No. 193 of the 9th May, 1980 with enclosure (a petition of Sangita/Krishna Kumari addressed to the Additional Chief Judicial Magistrate). After hearing the opposite party Nos. 1 and 2 and going through the contents of the said letter the Additional Chief Judicial Magistrate observed. “1 was only concerned with the release of the girl and since she has been released from jail by you people, and if she is creating any nuisance, it is no more a matter of my court’s jurisdiction, rather it is a matter of law and order and falls within the jurisdiction of Khagaria S.D.O. who is only competent to handle the situation legally and efficiently ” Opposite Party Nos. 1 and 2 then went to the residence of Khagaria S.D.O. at about 7.30 p. m. When they apprised him with the details of the situation and facts regarding Krishna and handed over to him a letter containing details of the said matter enclosing also letter No. 193 which was returned by the Additional Chief Judicial Magistrate to them, the opposite party No. 3 rushed to the jail, enquired into the matter personally and received written statement from Krishna and her father Jagdish Prasad. No ordered opposite party Nos. I and 2 to keep her in the safe custody in jail (as there was no other safe custody Khagaria) till the arrangement for sending her to any After Care Home was made and subsequently confirmed it by his letter under memo No. 760, dated the 10th May, 1980.
6. Krishna Kumari @ Sangita a young woman aged 18-20 years was apprehended allegedly for the offence Under Section 290 of the Indian Penal Code and Section 120-B of the Indian Railways Act. There is a veiled suggestional in the petition showing cause that Krishna was a woman of questionable character, that there was a read danger to her person and her safety so such concerned the opposite party Nos. 1, 2 and 3, that she was kept in safe custody in jail although she has been ordered to be released by the court of Additional Chief Judicial Magistrate, Khagaria. Notice calling upon him to show cause, it appears, had lowered opposite party No. 3 down to some extent still he has in the petition showing cause maintained that he had jurisdiction irrespective of any courts order to direct for keeping Sangita in a jail in safe custody.
7. I propose to dispose of the contention about admission, removal and discharge of prisoners from jail. The Prisoners Not, 1900 amended from time to time in Section 3 provides:
The office incharge of a prison shall receive and detain all persons duly committed to his custody, under this Act or otherwise by any court, according to the exigency of any writ, warrant or order by which such person has been committed, or until such person is discharged or removed in due course of law.
In Part IV which provides for giving effect to sentences by officer incharge of prisons out-side the presidency towns: Section 15 says:
Officers incharge of prisons out side the presidency towns may give effect to any sentence, order or warrant for the detention of any person passed or issued (a) by any court or tribunal acting whether within or without the states under the general or special authority of the Central Government or of any State Government, or of the Government of Burma or by any court or tribunal which was before the commencement of the Constitution acting under the general or special authority of his Magistrate or of the Crown representative or (b) before the 20th January, 1950 by any court or tribunal in any Indian state if the Presiding Judge or if the court or tribunal consisted of two or more judges atleast one of the judges was an officer of the Crown authorised to sit as such judge by the State or the ruler thereof or by the Central Government or the Crown representative and if the detention or imprisonment in any province of India of persons sentenced by any such court or tribunal had been authorised by general or special order by the State Government…
The Prisons Act, 1894 as amended from time to time has provided in Section 26:
All prisoners previously to being removed to any other prison shall be executed by the medical officer (2) no prisoner shall be removed from prison to another unless the medical officer certifies that the prisoner is free from any illness rendering him unfit for removal; (3) no prisoner shall be discharged against his will from prison if for labouring under any acute or dangerous distemper nor until in the opinion of the medical officer such discharge is safe.
8. Provisions of Prisoners Act contain a mandate in no ambiguous terms that a person shall be received and detained in jail only when he is committed under the Prisoners Act to jail custody or otherwise by any court according to the exigency of any writ, warrant or order by which such person has been committed or until such person is discharged or removed in due course of law. This may include the receiving and detaining a person who is ordered to be detained in jail custody by a competent authority other than a court of law. If the word ‘Court’ in Section 3 of the Prisoners Act is read to mean, only a Court of law established under the Constitution of India then detention of a person in pursuance of warrant issued by Speaker of Legislative Assembly shall be ultra-vires. Several persons who are taken in custody to pre-empt their criminal activities under preventive laws shall escape custody in prisons if detention order, writ or warrant has to be one by a court of law and none else. Authority to detain, however, must be traced to a law duly promulgated. Any and every person in authority only by dint of his office cannot assume the power to detain and issue a writ, warrant or order remanding to a jail or authorising a person’s detention in jail. To our pointed questions, however, Mr. Halbhadra Prasad Singh, learned Counsel appearing for the opposite party, could not bring to our notice any answer to trace the Civil S.D.O.’s power even as a Magistrate to authorise detention of any person in prison without any appropriate proceeding under a law. Mr. Basudeva Prasad, learned Counsel appearing for the opposite party Nos. 1 and 2, has, however, shifted his stand to the belief created in the opposite party Nos. 1 and 2 by the Additional Chief Judicial Magistrate who according to him told them to go the Civil S.D.O. and the Civil S.D.O. issued in the evening of 9-5-80 oral order to keep Krishna Kumari Sangita in safe custody in the prison and confirmed the same by issuing an order to the said effect 10-5-80. According to his opposite party Nos. 1 and I were obliged to act as ordered by the S.D.O. as they could not question his (authority to make such order. He has supported his contention by relying upon Section 26 of the Prisons Act which has said, inter alia that no prisoner shall be discharged against his will from prison if labouring under any acute or dangerous distemper, nor until in the opinion of the medical officer shall discharge is safe. He has submitted that opposite party No. 2 is a Medical Officer besides his capacity as the Superintendent of the jail and he was satisfied that Krishna Sangita had that acute/dangerous distemper which in his opinion was such that discharge of Krishna & Sangita was unsafe.
9. Was danger to Sangita’s life real ? How could she while still within the two gates (one outer and the other inner) of the value of the jail could perceive the danger ? Unfortunately Jagdish Prasad Krishna @ Sangita’s father is dead. Jagdish Prasad’s stand before the Additional Chief Judicial Magistrate has been unequivocal that the jail authorities defied the release order and manipulated her detention. Krishna Kumar is said to have given to the opposite party Nos. 1 and 2 certain documents which are described as representation to the Additional Chief Judicial Magistrate and the Sub-Divisional Magistrate in which she has said that she saw a large crowd assembled at the jail gate and she apprehended danger to her life. I have no manner of doubt that Sangita @ Krishna has not been made available for her examination as a witness. In this proceeding a curious method has been adopted by the opposite party. A petition has been filed on her behalf stating and reiterating the words of defence of the opposite party. But the warrant issued by this Court for her production and appearance has been returned unexecuted stating that she is not available at the address given in her affidavit and the petition before this Court. No Counsel has appeared on her behalf. Nonetheless the opposite party has placed reliance upon what she has said in her affidavit. How easily the course of justice can be deflected by astute litigants and men in power and how helpless a court of law can become, is demonstrated in the fact that Krishna Kumari has been successfully with held and her evidence despite the efforts of the court could not be recorded. At one stage of the proceeding we were inclined to postpone the hearing and issue a search warrant, but keeping in view the fact that this proceeding starting in the year 1980 has some how come to its culmination in the year 1985 desisted from doing so. What is said by Jagdish Prasad (since deceased) and Krishna Kumari & Sangita before the Additional Chief Judicial Magistrate a reference of which is available in the order-sheet of his court, is undoubtedly admissible as the statement of the presiding officer of the court who as the law of contempt as has enjoined is not required to appear as a witness. Section 10 of the Contempt of Courts Act, 1971 says that the High Court shall have and exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice in respect of contempt’s of courts subordinate to it as it has an exercise in respect of contempt of itself. Section 14(3) says that it shall not be necessary for the Judge or Judges in whose presence or hearing the offence is alleged to have been committed to appear as witness and the statement place before the Chief Justice under Sub-section (2) thereof shall be treated as evidence in the case. I can accordingly take the statement of the learned Additional Chief Judicial Magistrate which has been placed before under the orders of the Chief Justice, as the evidence which shows atleast that the opposite party Nos. 1 and 2 approached him and present him to authorise Krishna & Sangita’s detention. He has categorically denied the allegation of the opposite party No. 1 and 2 that he had asked them to go to the Civil S.D.O. The Civil S.D.O. acted without jurisdiction but he so acted only on being him impressed by what opposite party Nos. 1 and 2 represented before him. The judgment that Sangita @ Krishna should be detained in jail and not released in the exigencies that were allegedly noticed by the opposite party Nos. 1 and 2 was that of the opposite party Nos, 1 and 2 before the Civil S.D.O, was involved in it. The Civil S.D.O., as claimed by him, visited the jail and took Sangita & Krishna’s statement and that of her father Jagdish Prasad. They according to him told him that Sangita should be kept in the safe custody. Why and In what circumstances Sangita and Jagdish Prasad made such statements are not known, but Jagdish Prasad moved the court of the Additional Chief Judicial Magistrate on 12.5000 and alleged that Sangita was illegally detained and not released. Opposite party No. 1 and 2 appeared to question whether Jagdish Prasad was the father of Krishna Kumari @ Sangita. In some of their affidavits they have called him the alleged father of Sangita. One cannot forget that Jagdish Prasad is said to have arrived at the jail and was present when the S.D.O. visited the jail and took statement of Sangita as also his statement. They appear (along with the opposite party No. 3) to use the statement of Jagdish Prasad allegedly made before the opposite party No. 3 on the one hand and on the other hand suggest that Jagdish Prasad was not Sangita @ Krishna’s father.
10. We also asked a pointed question whether as stated in the petition showing cause Sangita & Krishna was released from jail and the order of the Additional Chief Judicial Magistrate was complied with or not? Mr. Basudeva Pd. learned Counsel appearing for the opposite party Nos. 1 and 2 has stated that she was released because all the formalities of entries in the registers of the jail were completed and she was brought between the two jail gates which area does not form part of the prison. She was re-admitted in the prison when the Civil S.D.O. gave the verbal order to do so and was kept in safe custody accordingly. While maintaining this Mr. Prasad has also submitted that Krishna & Sangita was labouring under acute and dangerous distemper and she was not willing to leave the prison. So, if she was not discharged in these circumstances, nothing illegal was done. If this contention of Mr. Prasad is worth acceptance all the exercise that there should have been a valid authorisation by a competent authority etc. will be futile and infructuous. The expression acute or dangerous distemper has been used in conjunction with the opinion of the medical officer, “Distemper” in its relevant connotation means “bad humour or temper”. The only facts for suggesting such a state of mind of Sangita @ Krishna are her witnessing a large crowd outside the outer jail gate although she had not yet stepped out. The Civil S.D.O. opposite party No. 3 has not claimed that he saw any crowd when he visited the jail. Fear for life cannot be equated with bad honour or temper. The opposite party Nos. 1 and 2 never suggested any acute or dangerous distemper either to the opposite party No. 3 or to the Additional Chief Judicial Magistrate. Moreover existence of any such distemper is ruled out because the opposite party have insisted that Krishna & Sangita was released and, thus, discharged from the prison in pursuance to the order passed by the Additional Chief Judicial Magistrate. I have no doubt that Sub-section (3) of Section 24 of the Prisons Act is not attracted on the facts of this case.
11. The Contempt of Court Act, 1971 has defined contempt in two parts namely civil contempt. It says “Civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court” and criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) or any matter or the doing of any other act whatsoever which scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or prejudices or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner….”. Mr. Jaiswal, learned Counsel representing the prosecutor has submitted that the opposite party by what they have done, have committed both civil contempt and criminal contempt. There can be no doubt that opposite party Nos. 1 and 2 have wilfully disobeyed the order of the court by not discharging Krishna Kumari @ Sangita from the prison and opposite party No. 3, has abeted and connived in the said disobedience. But all of them by detaining Krishna Kumari @ Sangita have interfered in the due course of the judicial proceeding of the court of the Additional Chief Judicial Magistrate and obstructed the administration of justice. Mr, Balbhadra Prasad Singh, learned Counsel appearing for the opposite party No. 3, has, however, submitted that so far opposite party No. 3 is concerned, he has not wilfully disobeyed the order of the Additional Chief Judicial Magistrate. He has also submitted that there is no attempt on the part of the opposite party No. 3 to interfere in the due course of any judicial proceeding or to obstruct the administration of justice in any other manner although to some extent his conduct was prompted by indiscretion in (i) thinking that he could make an order for the safe custody of the woman apprehended real danger to her life and (ii) that his authority was independent of any thing done by the court of the Additional Chief Judicial Magistrate. He has pointed out that on the facts that were represented by the opposite party Nos. 1 and 2 before the opposite party No. 3, he could honestly believe that it was essential to make provisions for the woman’s safe custody and the said belief was confirmed when he visited the jail and found the woman and her father stating before him that she was not willing to leave the jail precincts. Mr. Prasad, learned Counsel appearing for the opposite party Nos. 1 and 2 submitted that they have been charged only for the civil contempt and there are sufficient facts to show that they did not wilfully disobey the order of the court. He has admitted that in absence of the charge of any criminal contempt against the opposite party Nos. 1 and 2, they cannot be held guilty of any criminal contempt. He has, however, also submitted that opposite party Nos. 1 and 2 acted with clear conscience and were guides by the concerned for the woman’s safety and nothing else in whatever they did in this matter.
12. No doubt for constituting civil contempt essential ingredient is ‘wilful disobedience’ and not any and every disobedience due to various six reasons such as unvoidable circumstances or inadvertence. Wilful cannotes “purposefully” and “clear intention to fleut”. For constituting criminal contempt, however, the essential ingredients are “interference” or “tending to interfere with” the due course of any judicial proceeding or “interference” or “tending to interfere with” or “obstructing” or “tending to obstruct” the administration of justice. In my other manner. That there has been interference in the administration of justice by the court of the Additional Chief Judicial Magistrate by the acts of the opposite party is not in doubt. Opposite party Nos. 1 and 2 failed to release the girl woman from custody and, thus, disobeyed the order of the Additional Chief Judicial Magistrate. With a view to obtaining some semblance of authority they first tried to obtain an order to continue the detention of Krishna Kumari @ Sangita from the Additional Chief Judicial Magistrate and whom they failed in their attempt in this behalf, they approached the Sub-Divisional Officer and succeeded in getting an order in writing from him, dated 10-5-1980. I have no hesitation in rejecting Mr. Prasad’s contention that the woman had been released as the records of the jail show because the release from the prison means release from the custody of the officers incharge of the prison and Sangita &: Krishna remained in custody of the opposite party Nos. 1 and 2 all throughout their going to Additional Chief Judicial Magistrate and the Sub-Divisional Magistrate and putting her in prison again in the night of 9-5-1980 and continuing her custody until she was transferred by them to the After Care Home, from where she was finally released. I am satisfied on these facts that opposite party Nos. 1 and 2 purposefully and intentionally flouted the order of the learned Additional Chief Judicial Magistrate by deciding to detain Krishna Kumari @ Sangita notwithstanding the order passed by the Additional Chief Judicial Magistrate. Their act of disobedience is writ large in their approaching the Additional Chief Judicial Magistrate to obtain authorisation to continue the detention of Krishna & Sangita in jail and their representations before the opposite party No. 3 to obtain the order for keeping her in jail thereby flouting the order of the competent court of law. That the administration of justice was obstructed by what the opposite party No. 3, 1, and 2 did is also not in doubt. There is nothing on the record to satisfy us that there was any real danger to the life of the woman. Assuming there was any, the first thing to do for any authority was to apprehend the miscreants and remove the threat. The opposite party in their petitions showing cause and other materials produced before us are conspicuously silent about it.
13. I have given my anxious thought how to deal with the contemners. They have noticed by me above disobeyed the order of the Additional Chief Judicial Magistrate (opposite party Nos. 1 and 2) and obstructed the administration of justice and interfered with and obstructed the administration of justice (opposite party Nos. 1, 2 and 3). No human being is infallable. Human composition must always soften the rough edges of justice. The opposite party No. 3 had only recently entered the Indian Administrative Service and joined as the Civil S.D.O. at Khagaria, his first posting of importance. If he acted some what carelessly, as Mr. Balbhadra Prasad Singh has said, had shown indiscretion, he perhaps did so thinking that as the Civil S.D.O. he exercised even such powers that he could make orders even nullifying the orders of a competent court, of law. One who commits criminal contempt shall be guilty and that he committed the said contempt intentionally, purposefully or wilfully. Doing the act, in my view, will not be relevant. But courts in India have kept away from ultra sensitiveness. They have extended pardons and shown forgiveness unless compelled to punish by the persistent and obstinate defiance and interference. Opposite Party No. 3 may have fallen a victim of the designs of the opposite party Nos. 1 and 2 and when told by the Additional Chief Judicial Magistrate that he had no jurisdiction, felt his vanity hurt, a false vanity though. I am inclined on these facts to discharge the rule of contempt so far he is concerned, but with the warning that any future act of contempt by him may not be easily ignored. So far opposite party Nos, 1 and 2 are concerned, I find them guilty of both the civil contempt and the criminal contempt. I accordingly record the order of conviction. They have, however, rendered unqualified apology which, in my view, has diluted the gravity of the offence. I accept the apology and remit them without any punishment.
14. The rule is accordingly disposed of.
Sayed Haider Shaukat Abidi, J.
15. I agree.