Mauro Antonio And Anr. vs R.P. Singh
2007 Latest Caselaw 243 Del

ORDER

S. Muralidhar, J.

1. This contempt petition has been filed by two Italian nationals who were detained in Tihar Jail in Delhi on 10.2.2005 in a case under Section 420 of Indian Penal Code (IPC). In the another case involving these two petitioners a production warrant had been issued on 12.2.2005 by the Chief Metropolitan Magistrate Ernakulam Kerala requiring production of these two petitioners in that Court on 18.2.2005. The said production warrant was issued in terms of Section 267 of the Code of Criminal Procedure, 1973 (CrPC). The Chief Metropolitan Magistrate, Delhi declined the prayer for production of the petitioners in the Kerala Court on the ground that they were required in the criminal cases in Delhi. Consequently the petitioners were not produced in the Court in Kerala on the date indicated in the production warrant.

2. Pursuant to a circular dated 27.11.2003, issued by the Office of the Director General (Prisons), Tihar, New Delhi in matters where a production warrant sent from a court ?Outside Delhi? is unable to be executed, a message is required to be sent soon thereafter to that court to ascertain the next date of production. Accordingly, a wireless message was sent by the Tihar jail officials on 17.2.2005 to the learned Chief Judicial Magistrate Ernakulam, seeking intimation about the next date of production. Although the next date was intimated as 1.3.2005, but even on this date, the petitioners could not be produced since the prayer for producing the petitioners had been declined by the CMM, Delhi.

3. Thereafter, another production warrant was issued by the CJM, Ernakulam requiring the petitioners to be produced in that Court on 18.3.2005. This time, the permission was granted by the CMM Delhi on 15.3.2005, but due to paucity of time, the petitioners could not be produced before the court of the CJM at Ernakulam. On 17.3.2005 a wireless message was flashed to the CJM, Ernakulam, Kerala giving the reason for non-production and sought intimation of the next date of production.

4. On 18.5.2005, the petitioners were released in Delhi in the criminal case consequent upon the offences having been compounded. However they were not released on the ground that they were possibly required for production in Kerala. At this stage, the petitioners filed an application on 18.5.2005 itself in the Court of CMM, Delhi for directions to the Superintendent to Tihar Jail to release the petitioners ?forthwith if they are not wanted in any other case?.

The learned CMM, Delhi called for a report on 19.5.2005. The Superintendent Jail, Tihar filed a report in the Court of CMM informing that a wireless message had been sent to the Court of the CJM, Ernakulam on 19.5.2005 to ascertain the next date.

5. On 21.5.2005, the learned CMM, Delhi passed the following orders:

Present: APP for the State Counsel for applicant Report received from Supdt. Jail, Tihar.

Heard and Perused.

If the message in case FIR No. 931/2004 Under Section 420/34 IPC, Police Station Ernakulam, Kerala has been sent and if till today no response has been received from Ernakulam and if two days expired from date of sending by jail rec. the accused be released as per directions of DIG (prisons) Delhi and file the compliance report on 27.5.2005. Copy of order be sent to Supdt. Jail Tihar for compliance.

6. It appears that although a wireless message had been sent on 19.5.2005 by the Jail Authorities in Delhi, no response had been received by 21.5.2005 and this led to a further message being sent on 21.5.2005. The petitioners were subsequently sent to Kerala where they were ultimately released upon the settlement of the criminal case pending there. It is stated that the two petitioners are no longer in India.

7. Mr. Vikas Pahwa, learned Counsel for the petitioners urges that the liberty of persons brought within the ambit of criminal justice system in this country is precious. He states that on the facts of the present case, detention of the petitioners in Delhi beyond 21.5.2005, i.e., on the expiry of 2 days after the wireless message was sent on 19.5.2005 was contrary to the order of the CMM dated 21.5.2005 and the circular issued by the jail authorities on 27.11.2003. He accordingly states that nothwithstanding the fact that the petitioners have been released subsequently, a case of contempt of the order dated 21.5.2005 passed by the CMM, Delhi is made out and consequential orders should be passed by this Court.

8. Ms. Zubeda Begum, learned Counsel for the respondents places reliance on the following averments in paras 12 and 13 of the counter affidavit:

12. That in accordance with the above Circular dated 27.11.2003, a wireless message was flashed to the Court of Ld. CJM, Ernakulam on 19.5.2005. However, as no response was received till 21.5.2005, another wireless was sent on 21.5.2005 asking for confirmation whether or not the petitioners were required in case FIR No. 931/2004 It was very clearly stated that in case no response was received within two days the petitioners/prisoners will be released. Therefore, the two days, as provided in Circular dated 27.11.2003, commenced after the second intimation/wireless was sent on 21.5.2005. True copy of wireless message dated 21.5.2005 is enclosed herewith and marked as ANNEXURE ? R/8.

13. As 22.5.2005 was a Sunday and 23.5.2005 was also a gazetted holiday (Budh Purnima), the answering respondents contacted the office of S.P. Ernakulam on the morning of 23.5.2005 via telephone and received confirmation there from that the petitioners were required in case FIR No. 931/2004 As such, the petitioners were handed over to the III Battalion, DAP, Delhi on 23.5.2005 for production at Ernakulam, Kerala.

Her specific plea here is that the wireless message sent on 19.5.2005 did not contain a statement that the petitioners/prisoners would be released within two days if there was no response. Therefore, a further message was sent on 21.5.2005 incorporating such statement. She submits that the confirmation having been obtained within two days thereafter on 23.5.2005, no case for contempt is made out.

9. There can be no gainsaying that no person's liberty in this country can be curtailed or restrained except according to the procedure established by the law. The Cr.PC incorporates many of the basic inviolable safeguards concerning the protection of life and liberty of all persons in our country. The manner of issuing of warrants for production of persons detained in prisons before courts, including outside the court in whose jurisdiction the person required to be produced is and the manner of their execution has been set out under Section 267 CrPC. It is well settled that the provisions of the Cr.PC admit of a strict construction and any deviation from the procedure stipulated therein is normally viewed seriously by the courts. Our courts have also emphasised the desideratum of interpreting 'liberty-restricting' provisions in the backdrop of the Constitutional command of Article 21. The lucid exposition of the law by Supreme Court in Francis Coralie Mullin v. Administrator, Union Territory of Delhi continues to be the guiding lode star in such matters. That decision reminds us that when it comes to issues of life and liberty, the Constitution brooks of no unequal treatment of non-citizens.

10. The circular dated 27.11.2003 issued by the prison authorities in Delhi acknowledges the mandatory nature of Section 267 CrPC. The circular stipulates that where the earlier production warrant issued by a Court located outside Delhi is unable to be executed for any reasons, a message should be sent to the concerned Court ?immediately? for soliciting information about the next date of production. However, the word ?immediately? should not be construed as permitting an 'open ended' outer limit. It ought to be reasonably interpreted as requiring an outer time limit within which such information should be sought.

11. As far as the present case is concerned the jail authorities in Delhi flashed a wireless message on 17.3.2005 to the concerned Court in Kerala soliciting information about the next date of production. So far, there can be no cause for complaint. However it is the events that transpired thereafter that has led the petitioners to file the present contempt petition. The message flashed on 19.5.2005 was almost two months after the earlier message of 17.3.2005 and this again was sent only after the conclusion of criminal case against the petitioner on 18.5.2005 in Delhi. The question really is whether the respondents were justified in detaining the petitioners beyond a period of two days after 19.5.2005 and should they take advantage of their own lapse in not incorporating the sentence in the wireless message of 19.5.2005 that the petitioners would be released within two days if no reply was received. It was this that led to the sending of a further message on 21.5.2005 the confirmation for which was received only on 23.5.2005.

12. No doubt, the gap between the earlier message of 17.3.2005 and the subsequent message of 19.5.2005 was more than two months. Still, in terms of the circular dated 27.11.2003, the message of 19.5.2005 had to contain the line that the petitioners ?would be released if no response is received?. It did not. However, in view of the subsequent events in the present case, this lapse does not appear to be so serious as to warrant any conclusion of contempt having being committed by the respondents of the order dated 21.5.2005 passed by the CMM, Delhi.

13. It transpires in the present case although there had been a settlement in the criminal case against the petitioners in Kerala and a petition for quashing was filed consequent thereto in the High Court of Kerala, it was not immediately acted upon. An order dated 19.5.2005 passed by the High Court of Kerala in Criminal Miscellaneous Case No. 1411/2005 and 1386/2005 reveals that although the fact of the settlement was noted, the case had been kept back till 31.5.2005. Therefore, the requirement of the petitioners in Kerala in the criminal case pending there was still alive on the date of on which they were actually sent from Delhi to Kerala. The information ascertained by the jail authorities here telephonically from the Office of the Superintendent of Police in Kerala on the morning of 23.5.2005 to the effect that the petitioners would be required to be produced before the CJM, Ernakulam was, therefore, correct. In that view of the matter it cannot be said that the sending of a further message on 21.5.2005 seeking information from the Court in Kerala has prejudiced the case of the petitioners or has delayed their release. Had the petitioners not been required in Kerala as of 21.5.2005, the consequences of the lapse of the prison authorities in Delhi may have been viewed seriously. However, on the facts of the present case the Court is not persuaded to view the action of the respondents as being in willful disobedience of the order dated 21.5.2005 of the learned CMM, Delhi. Their conduct cannot be said to be contumacious.

14. Nevertheless, this Court would like to emphasize that there should be no undue delay in soliciting information from another court whose production warrants have not been unable to be executed for any reason. The gap between the two messages sent in terms of the circular dated 27.11.2003 should not exceed ten days. Secondly, the message should be sent to the concerned Court and the information as to the next date of production should also be obtained only from the said Court itself and not through the Police of such other State. The purport of Section 267 Cr.P.C. is that such information should be sought from the concerned Court itself. If these two requirements are incorporated into the circular dated 27.11.2003 for mandatory compliance, any prejudice that may be caused to a prisoner detained in Delhi whose production is ordered by the Court outside Delhi, can be avoided.

15. The counsel for the petitioners states that there are instances of other prisoners detained needlessly in the jails in Delhi for lack of information about the next date of their production in Courts outside Delhi. However the scope of the present proceedings do not permit examination of this aspect. The Court is sanguine that if the modifications to the Circular dated 27.11.2003 in light of what has been suggested here are made this grievance can also be taken care of by the prison authorities. They have been reminded time and again by our Courts that in their role as guardians of our penal correctional institutions, they have a constitutional obligation to also guard against impermissible infractions of the liberty of those entrusted to their custody.

16. With these observations, the contempt petition is closed and disposed of as such Copy of the order be given dusty to the parties. A copy also be sent by the Registry to the Director General of Prisions, Thiar, Delhi, within three days.