Antony Joseph vs Shaji
2022 Latest Caselaw 5032 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE K.HARIPAL
        THURSDAY, THE 5TH DAY OF MAY 2022 / 15TH VAISAKHA, 1944
                     CON.CASE(C) NO. 950 OF 2021
   INTERIM ORDER DATED 18.02.2021 IN B.A. No. 8186/2020 OF HIGH
                           COURT OF KERALA
PETITIONER/PETITIONER:

            ANTONY JOSEPH
            AGED 46 YEARS
            511, MARUDA ROAD,
            PALAKKAD,
            PIN-678010.

            BY ADV. N.K.MOHANLAL


RESPONDENTS/RESPONDENT NO. 2:

    1       SHAJI
            AGE, FATHER'S NAME AND RESIDENCE IS NOT KNOWN
            SUB-INSPECTOR OF POLICE,
            GANDHI NAGAR POLICE STATION,
            KOTTAYAM, PIN-686008.

    2       SURESH V NAIR
            AGE, FATHER'S NAME AND RESIDENCE IS NOT KNOWN)
            CIRCLE INSPECTOR OF POLICE,
            GANDHI NAGAR POLICE STATION,
            KOTTAYAM,
            PIN-686008.

            R1 BY SRI. S. RAJEEV
                       V.VINAY(K/355/2009)
                       M.S.ANEER(K/644/2013)
                       SARATH K.P.(K/001467/2021)
            BY SMT. SREEJA V., SENIOR PUBLIC PROSECUTOR



     THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD
ON 08.04.2022, THE COURT ON 05.05.2022 DELIVERED THE FOLLOWING:
 CON.CASE(C) NO. 950 OF 2021

                                  2




                           JUDGMENT

This is a contempt of court case initiated under Section

12(1) of the Contempt of Courts Act, 1971, hereinafter referred

to as the Act, against two police officials, Sub Inspector and

Circle Inspector of police respectively of Gandhi Nagar Police

Station alleging that they had wilfully disobeyed an order

passed by this Court on 18.02.2021 in Crl.M.A. No.1/2021 in

B.A. No. 8186/2020. That was a bail application filed by the

petitioner under Section 438 of the Code of Criminal Procedure

seeking pre-arrest bail in a case where he suspected to have

been made the accused. After hearing the counsel for the

petitioner, by order dated 18.02.2021, this Court impleaded the

defacto complainant as the additional third respondent and

directed to issue notice to him by speed post. The court also

directed that the petitioner shall not be arrested until served

with a notice under Section 41A of the Cr.P.C. However, the

case of the petitioner is that ignoring the said direction, the CON.CASE(C) NO. 950 OF 2021

counter petitioners arrested him at 9.00 A.M. on 29.05.2021

from Palakkad in front of his minor child, paraded him in

public domain and produced before court on 30.05.2021 at

11.00 A.M. According to the petitioner, that case was registered

on a private complaint preferred by the defacto complainant

alleging offence under Sections 415, 416, 419, 420 of the

Indian Penal Code contending that he had collected an amount

of Rs. 5,95,000/- offering to arrange a visa and thereafter,

neither the amount was paid nor the visa was arranged and

thus, committed the said crime. He was arrested from

Palakkad in the presence of the counter petitioners and another

Sub Inspector and also the defacto complainant etc.

Immediately after passing the order dated 18.02.2021, the same

was communicated to both the counter petitioners; the counsel

for the petitioner himself had handed over copy of the same at

the police station and also tendered the same to the counter

petitioners. Still they were not prepared to pay heed to the

same and took him into custody without serving him a notice CON.CASE(C) NO. 950 OF 2021

under Section 41A of the Cr.P.C. Meanwhile, he managed to

arrange the amount which was due to the defacto complainant

and had paid the same. Even though he had submitted that

aspect before the court, court did not consider to his plea of

settlement and remanded him to judicial custody and was

released on bail only on 31.05.2021. Thus alleging wilfull

disregard of the order passed by this Court, the petitioner

sought to proceed against the counter petitioners under Section

12(1) of the Act.

2. Both the counter petitioners submitted their separate

replies. After considering the reply statements, this Court was

convinced that the first respondent had received copy of the

order of this Court dated 18.02.2021. Thus prima facie, it was

found that there are materials to conclude that the first

respondent, Sub Inspector Shaji had proceeded to arrest the

petitioner without serving notice under Section 41A of the

Cr.P.C. even after obtaining copy of the order of this Court.

Thus he was found prima facie answerable to the allegation of CON.CASE(C) NO. 950 OF 2021

wilfull negation of the order passed by this Court. Even though

the second respondent had accompanied the first respondent, as

there was no material to say that the order was served on him,

prima facie materials could not be gathered against him.

3. Thus on a prima facie satisfaction that the first

respondent has committed contempt of this Court, he was

called upon to appear before court in person for framing charge

under Section 12(1) of the Act.

4. Pursuant to the said order, Adv. Sri. S. Rajeev

entered appearance for the first respondent. The first

respondent was present in person in Court on 04.03.2022,

23.03.2022 and 31.03.2022. Thereafter on 31.03.2022, it was

ordered that his further personal appearance is not necessary.

5. I heard the learned counsel for the petitioner and

also the first respondent the contemnor.

6. The learned counsel for the petitioner submitted that

even though the contemnor has tendered apology, it is a belated

apology. Before that he was trying to contest and dispute the CON.CASE(C) NO. 950 OF 2021

allegations against him; there is no bonafides in the present

unconditional apology tendered by him. He does not have

slightest remorse or repentance. At last, when this Court found

that there is prima facie materials against him for wilfull

violation of the order passed by this Court, he has changed the

strategy and has come with an apology which cannot be

accepted on its face value. The learned counsel also relied on

the decisions reported in Parameswaran v. Bharathan [2002

(2) KLT SN 35 (C. No. 42)], Arun Kumar Yadav v. State of

U.P. [2013(3) KLT SN 54 (C. No. 55) SC], Ranveer Yadav v.

State of Bihar [2010(2) KLT SN 57 (C. No. 57) SC] and All

Bengal Excise Licensees Association v. Raghavendra Singh

and Others [ AIR 2007 SC 1386].

7. The learned counsel prayed that the belated apology

tendered by the contemnor may not be accepted and pressed for

framing charge against him.

8. On the other hand, the learned counsel for the

contemnor submitted that petitioner is only a Grade Sub CON.CASE(C) NO. 950 OF 2021

Inspector who had accompanied the Station House Officer,

Circle Inspector of Police. He had only limited role in assisting

the superior officer in effecting arrest. Even though the learned

counsel did not justify the act of the contemnor, he pointed out

that the first respondent had no voice in the matter. He had only

accompanied Inspector of police. Therefore, he prayed for

closing the matter accepting the unconditional apology

tendered by the contemnor.

9. I have no doubt that serious allegations were raised

against the petitioner by the defacto complainant contending

that he had cheated different persons after collecting money

from them offering to arrange visa abroad. Going by the

estimation of the respondents, total amount of financial fraud

committed by him comes to Rs. 6,63,51,931/- in three cases

lodged in different police stations, in Gandhi Nagar,

Ponkunnam and Thrikkakara. Whatever it may be, there are

reasons to believe that by the time when he was arrested and

produced before court in connection with case in Gandhi Nagar CON.CASE(C) NO. 950 OF 2021

police station, he had paid the entire amount due to the defacto

complainant. Still he was arrested and granted bail on the

following day only.

10. The order dated 18.02.2021 was served on the first

respondent contemnor. All the same, satisfactory materials

could not be brought before Court to say that the said order was

communicated to the Station House Officer, the Circle

Inspector. Thus, this Court could not find prima facie materials

to proceed against the Circle Inspector, even though he has

been arrayed as the second respondent in this Contempt of

Court proceedings. But for two reasons, I am inclined not to

proceed against the contemnor further and to drop the

proceedings. Firstly, as stated earlier, he is only a Grade Sub

Inspector, who had no independent role in the matter, in spite

of the fact that he was the Investigating Officer of the case. He

had proceeded to Palakkad and traced the petitioner at his

rented premises accompanied by the Circle Inspector. In other

words, the Circle Inspector was the team leader and he was CON.CASE(C) NO. 950 OF 2021

only acting on the dictates of the superior officer. He had no

independent application of mind in the matter despite the fact

that he had received the order dated 18.02.2021.

11. Secondly, now in his affidavit dated 16.03.2022, he

has tendered his unconditional apology. According to him, he

regret for the inadvertent and unconditional mistake happened

on his part; he is the sole breadwinner of the family consisting

of three children who are studying for Degree courses. He has

further undertaken that he will be careful in future. Even

though this apology was tendered after a finding by this Court

that there are prima facie materials against him, in my view

there is nothing to suspect the bonafides of the contemnor.

Even the petitioner has no case that the first respondent is an

officer who has no regard for the orders passed by Courts. No

antecedents also is noticed against him. In fact, contempt

jurisdiction is intended not for punishing the contemnor, but for

protecting the dignity and authority of the court. CON.CASE(C) NO. 950 OF 2021

12. In the circumstances that he has admitted his guilt

and tendered unconditional apology, it is only appropriate in

the interest of justice that the apology be accepted and further

proceedings are closed.

In the result, accepting the apology, further proceedings

are closed; it goes without saying that the contemnor, the first

respondent shall be careful in future in such matters.

Sd/-

K.HARIPAL

JUDGE

DCS/12.04.2022 CON.CASE(C) NO. 950 OF 2021

APPENDIX

PETITIONER'S ANNEXURE

ANNEXURE A1 A CERTIFIED COPY OF ORDER DATED 18.02.2021 IN B.A. NO. 8186/2020 OF HON'BLE HIGH COURT OF KERALA

ANNEXURE A2 A TRUE COPY OF LEGAL NOTICE DATED 02.06.2021 ISSUED BY PETITIONER TO RESPONDENTS

ANNEXURE A3 A TRUE COPY OF THE ANNEXURE A1 INTERIM ORDER DATED 18.02.2021 IN B.A.NO.

8186/2020 SENT IN THE WHATSAPP OF 1ST RESPONDENT AND HIS REPLY DATED 02.04.2021