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PETITIONER: SEBASTIAN M. HONGRAY

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT23/04/1984

BENCH: DESAI, D.A. BENCH: DESAI, D.A. REDDY, O. CHINNAPPA (J)

CITATION:  1984 AIR 1026            1984 SCR  (3) 544  1984 SCC  (3)  82        1984 SCALE  (1)629  CITATOR INFO :  F          1986 SC 494  (3)

ACT:      Writ of  Habeas Corpus  served on Respondents directing them to  produce the  two named  persons-Respondents fail to file a  return but  explain the  reasons for  not  producing them-Appropriate mode  of enforcing  obedience to  a Writ of Habeas  Corpus,   explained-Contempt  of   Court  Act,  1971 Sections 2  (a) and  2 (b)  "civil contempt"  and willful di obedience", explained  Exemplary Cost by way of Compensation ordered under  Rule 6 of order XLVII of Supreme Court Rules, 1966.

HEADNOTE:      On November  24, 1983,  the Court  by its  judgment and order directed that a writ of Habeas Corpus be issued-Though the 1st, 2nd and 4th respondents were served, they failed to file a  return to the Writ. However a return on affidavit by one Ajai  Vikram Singh  Director, Ministry  of  Defence  was filed on  12.12.1983 expressing  their inability  to produce the two  named officers  due to  circumstances beyond  their control and  their failure  to  trace  them  even  with  the assistance of  Central Bureau  of  Investigation.  This  was supported by  a copy  of the  report by  the  Dy.  Inspector General of Police (s).      Making the Rule absolute the Court, ^      HELD 1.  In compliance  with  the  mandatory  direction contained in  the Writ  of Habeas Corpus, the person to whom it is  directed is  under a  legal obligation to produce the body of  the person alleged to be unlawfully detained before the Court  on the  day specified and to make a formal return to the writ. Here, such a writ has been issued and there has been failure  to produce  the missing  persons in respect of whom writ  is issued  and to  file the return as mandated by law. [547E-F]      2:1 The  Contempt of Courts Act, 1971 defines ’contempt of court’  in Sec.  2(a) to mean ’civil contempt or criminal contempt’. ’Civil  contempt’ is defined in Sec. 2(b) to mean willful disobedience  to  any  judgment  decree,  direction, order, writ or other process of a Court or willful breach of an undertaking  given to a Court’. Willful disobedience to a

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writ issued  by the Court constitutes civil contempt. [547H; 548A]      2:2 Mere  failure to  obey the  writ may not constitute civil contempt depending upon the facts and circumstances of the case.  But willful  disobedience to  a writ  issued by a Court constitutes  civil contempt.  Again it is well settled that the  appropriate mode  of enforcing obedience to a writ of habeas  corpus is  by committal for contempt. A committal order may be 545 made against a person who intentionally makes a false return to  a   writ  of   habeas  corpus,   but  an   unintentional misrepresentation on a return is not a ground for committal. [548B-C]      2:3 The  view of  this Court  as expressed  in the main judgment clearly indicates that the assertion of respondents 1, 2  and 4  that C.  Daniel and  C. Paul left Phungrei Camp where 21st  Sikh Regiment  were stationed is not correct and that to  avoid responsibility  flowing from  the  mysterious disappearance of  C. Daniel  and C. Paul an attempt was made to suggest  that they had left alive in the company of their compatriots. On  that conclusion one can say that there is a willful  disobedience  to  the  writ  of  habeas  corpus  by misleading the  court by  presenting a  distorted version of facts not  borne out  by the  record. It is thus established that the  respondents  1,  2  and  4  have  committed  civil contempt by their willful disobedience to the writ. [548D-E]      3:1 Civil  contempt is  punishable with imprisonment as well as  fine. In  a given case, the court may also penalise the party  in contempt  by ordering  him to pay the costs of the application.  A  fine  can  also  be  imposed  upon  the contemnor. [548F]      3:2 In the facts and circumstances of the case, keeping in view  the torture,  the agony  and the  mental oppression through which  Mrs. C.  Thingkhuila, wife  of Shri C. Daniel and Mrs.  C. Vangamla,  wife of Shri C. Paul had to pass and they being  the proper  applicants, the  formal  application being by.  Sebastion M.  Hongray, the  court  considered  it proper and  directed that as a measure of exemplary costs as is permissible in such cases, respondents Nos. 1 and 2 shall pay Rs. 1 lac to each of the aforementioned two women within a period of four weeks from April 23, 1984.                                               [548G-H; 549A]      4.  Further   adjourning  the   matter  to  enable  the respondents to trace or locate the two missing persons is to shut the eyes to the reality and to peruse a mirage. The two officers have not met their tragic end in an encounter as is usually claimed  and the only possible inference that can be drawn from  circumstance of  the case  is that  both of them must have  met an  unnatural death. Prima facie, it would be an offence  of murder.  Who is  individually or collectively the perpetrator  of the  crime or  is responsible  for their disappearance will  have  to  be  determined  by  a  proper, thorough and  responsible police  investigation. It  is  not necessary  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 Shri C. Daniel and  Shri C.  Paul are  not alive  and  have  met  an unnatural death.  And the  Union of  India cannot disown the responsibility in this behalf. [549B-E]      (The  Court   issued  a   writ  of   mandamus  to   the Superintendent of Police, Ukhrul, Manipur State to treat all the papers in the Writ of Habeas Corpus as "information of a cognizable  offence   and  to   commence  investigation  as" prescribed  by  the  relevant  provisions  of  the  Code  of

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Criminal Procedure.)                                                     [549E-F] 546

JUDGMENT:      ORIGINAL JURISDICTION  : Writ  Petition (Criminal)  No. 148 of 1983.       (Under article 32 of the Constitution of India)      Ms.  Nandita  Haksar  and  C.S.  Vaidyanathan  for  the      Petitioner. Ms. A. Subhashini for Respondent.      Mrs. Urmila Kapoor for Respondent.      V.C. Mahajan,  P.N. Puri  S.K. Mehta  and Balbir  Singh Shant for Respondent.      The Judgment of the Court was delivered by      DESAI, J.  On Nov.  24, 1983, the Court by its Judgment and order  directed that  a writ of habeas corpus be issued. The operative portion of the order reads as under:           "Accordingly, this  petition  is  allowed  and  we      direct that  a writ  of habeas  corpus be issued to the      respondents 1,  2 and  4 commanding  them to produce C.      Daniel, retired  Naik Subedar  of  Manipur  Rifles  and      Headmaster of the Junior High School of Huining Village      and  C.  Paul,  Assistant  Pastor  of  Huining  Baptist      Church, who  were taken  to Phungrei Camp by the jawans      of 21st  Sikh Regiment  on March  10, 1982  before this      Court on Dec. 12, 1983 and file the return."      The Registry  issued the  writ and served the same upon first  respondent-Union   of   India,   second   respondent- Secretary, Ministry  of Home  Affairs  and  4th  respondent- Commandant, 21st  Sikh Regiment,  Phungrei Camp. Pursuant to the writ,  it was  obligatory upon respondents 1, 2 and 4 to file the  return and  to produce  C. Daniel  and C.  Paul. A return on  affidavit by  one Ajai  Vikram  Singh,  Director, Ministry of  Defence dated  December 9, 1983 was produced in the Court  on December  12, 1983  stating therein "that with all the  will and  the best  efforts,  the  respondents  are unable to  produce S/Shri  C. Daniel  and C.  Paul  for  the reasons set out in the affidavit and crave for indulgence of the Hon’ble  Court for their inability to produce the above- named  individuals   due  to   circumstances  beyond   their control." It  was reiterated that C. Daniel and C. Paul were not in the custody or control of respondents 1, 2, and 4. To this return several affidavits and messages were 547 annexed  saying  that  the  Army  authorities  conducted  an extensive search  for tracing  C. Daniel  and  C.  Paul  but nothing fruitful  has been  achieved.  One  Surendra  Kumar, Deputy Secretary,  Ministry of  Home Affairs  had also filed the return stating that C. Daniel and C. Paul are neither in the custody  or control  of respondent  No. 2. It was stated that Central  Bureau of  Investigation (CBI  for short) have been  directed   to  conduct   enquiries   to   locate   the aforementioned  two  persons  and  to  intimate  the  result thereof. The  matter was adjourned to enable the respondents to pursue  their efforts.  Nothing  fruitful  came  up  even though the  matter was  twice adjourned  at the  request  of learned Attorney General who entered appearance on behalf of respondents Nos.  1, 2  and 4.  The writ petition was posted for further  hearing and  orders on  April 19, 1984. On that day, a  summary of  enquiry made by CBI was submitted to the Court in  which it was stated that ’the field 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

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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  the  failure  of respondents 1,  2 and  4 to  file the  return to the writ of habeas corpus. After a preliminary enquiry and after hearing the respondents  and after negativing their contentions that Shri C.  Daniel and Shri C. Paul were not seen last alive in the custody  of the  4th respondent,  the Court  directed to issue a writ of habeas corpus. The writ of habeas corpus was issued and  was  served  on  respondents  1,  2  and  4.  In compliance with  the mandatory  direction contained  in  the writ of  habeas corpus, the person to whom it is directed 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 the writ. (1) Such a  writ has  been issued  and there has been failure to produce the  missing persons  in respect  of  whom  writ  is issued and to file the return as mandated by law.      The  next   question  therefore,   is  :  what  is  the appropriate mode  of enforcing obedience to a writ of habeas corpus ?      The Contempt  of Courts  Act, 1971 defines ’contempt of court’ in  Sec. 2(a)  to mean  ’civil contempt  or  criminal contempt’. ’Civil con 548 tempt’ is  defined in  Sec. 2(b) to mean 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.’ Wilful  disobedience to  a writ  issued by the Court constitutes  civil contempt. The question is : whether this disobedience  is wilful ? Mere failure to obey the writ may not  constitute civil  contempt depending upon the facts and circumstances  of the case. But wilful disobedience to a writ issued  by a Court constitutes civil contempt. Again it is well-settled  that ’the  appropriate  mode  of  enforcing obedience to  a writ  of habeas  corpus is  by committal for contempt. A committal order may be made against a person who intentionally makes  a false  return to  a  writ  of  habeas corpus, but  an unintentional  misrepresentation on a return is not a ground for committal.’(1)      The view  of  this  Court  as  expressed  in  the  main judgment clearly indicates that the assertion of respondents 1, 2  and 4  that C.  Daniel and  C. Paul left Phungrei Camp where 21st  Sikh Regiment  were stationed is not correct and that to  avoid responsibility  flowing from  the  mysterious disappearance of  C. Daniel  and C. Paul an attempt was made to suggest  that they had left alive in the company of their compatriots. The  Court  has  rejected  this  submission  as untenable and uncorrect. On that conclusion one can say that there is  a wilful disobedience to the writ of habeas corpus by misleading the court by presenting a distorted version of facts not  borne out  by the  record. It is thus established that the  respondents  1,  2  and  4  have  committed  civil contempt by their wilful disobedience to the writ.      Civil contempt  is punishable with imprisonment as well as fine.  In a  given case,  the court may also penalise the party in  contempt by  ordering him  to pay the costs of the application. (2)  A  fine  can  also  be  imposed  upon  the contemnor.      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 Mrs. C. Vangamla, wife of Shri C. Paul had  to pass  and they being the proper applicants, the

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formal application  being by Sebastian M. Hongray, we direct that as a measure of exem- 549 plary costs  as is  permissible in  such cases,  respondents Nos.  1   and  2   shall  pay  Rs  1  lac  to  each  of  the 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 the  matter to enable the respondents to trace or locate the  two missing  persons is  to shut the eyes to the reality and to pursue a mirage. As we are inclined to direct registration of  an offence and an investigation, we express no opinion  as to  what fate  has befallen to Shri C. Daniel and Shri C. Paul, the missing two persons in respect of whom the writ  of habeas corpus was issued save and except saying that 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 both of them must have met an unnatural death. Prima facie, it would be an offence of murder. Who is individually or collectively the perpetrator  of the  crime or  is responsible  for their disappearance will  have  to  be  determined  by  a  proper, thorough and  responsible police  investigation. It  is  not necessary  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 Shri C. Daniel and  Shri C.  Paul are  not alive  and  have  met  an unnatural death.  And the  Union of  India cannot disown the responsibility  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 (Judicial)  shall   forward  all  the  papers  of  the  case accompanied by  a writ  of mandamus to the Superintendent of Police, Ukhrul,  Manipur State  to be treated as information of a  cognizable offence  and to  commence investigation  as prescribed  by  the  relevant  provisions  of  the  Code  of Criminal Procedure. S.R.                                     Rule made absolute. 550