Supreme Court of India
SEBASTIAN M. HONGRAYversusUNION OF INDIA & ORS
- Citation
- 1984 INSC 88
- Decided
- 23 April 1984
- Disposal
- Directions issued
- Bench
- D A DESAI
Holding
The Court held that the respondents' wilful disobedience of the writ of habeas corpus constituted civil contempt and ordered exemplary costs and a criminal investigation.
Summary
The Supreme Court entertained a writ of habeas corpus filed by Sebastian M. Hongray seeking the production of two missing persons, C. Daniel and C. Paul, who were alleged to be unlawfully detained. The respondents – the Union of India, the Ministry of Defence and the commanding officer of the 21st Sikh Regiment – failed to produce the persons or file a return despite a mandatory direction, claiming circumstances beyond their control. The Court examined whether such failure amounted to civil contempt under the Contempt of Courts Act, 1971, and held that the respondents' wilful disobedience of the writ constituted civil contempt. Instead of committal, the Court ordered exemplary costs of Rs.1 lakh each to be paid to the wives of the missing persons as a measure of punishment. It also directed that the matter be treated as information of a cognizable offence and that a police investigation be launched into the probable unnatural deaths of the two missing individuals. The petition was therefore allowed, with costs and investigative directions imposed.
Issues considered
- Whether the respondents' failure to comply with the writ of habeas corpus amounts to civil contempt under the Contempt of Courts Act, 1971.
- Whether the disobedience was wilful or merely a failure to produce the persons.
- What is the appropriate mode of enforcing obedience to a writ of habeas corpus – committal or exemplary costs.
- Whether an investigation into the disappearance and presumed death of the missing persons should be ordered.
Legislation cited
- Code of Criminal Procedure
- Constitution of Indias. Article 32
- Contempt of Courts Act, 1971s. 2(a), s. 2(b)
- Supreme Court Rules, 1966s. KLVII
Subjects
habeas corpuscivil contemptcontempt of courtexemplary costsmissing personsinvestigationmurderUnion of IndiaSupreme Courtarticle 32
Judgment
•
544.
' •
r-.·
SEBASTIAN M. HONGRAY
v.
.
UNION OF INDIA & ORS
.
..
Apri( 23, 1984
B
'[D.A.I)esAI AND 0. CIUNNAPPA REDDY, JJ.]
. . .
· Writ :of Habeas Corpus served on Respondent3· dire.ctl~g· 1hem to produce_
t~e 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
c 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 affida·vif by one Aja.i Vikram Singh Dir~ctor, .Ministry of
n 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) .
E
. Making the Rule absolute .the Court,
.HELD ·10 complianc·~ whb thC mandatory direction contained ii:t
:i.
) ..
the Writ of Habeas Corpus, the pers.on to whom it·is dir"ec~ed 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 f~i!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] . · · · ·
F
.z:l ·'fh"e ·Contempt ··or Courts Act,. 19·11 define_s ,·collt~mpt of court•.
· i.n Sec. 2(a) io me~ll 'civil ·contempt ot criminal.con.teinpt'. 'Civil Conte~pt'
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 .disObedi~nce .. to a·wr.it issu~d by tne
G 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 tbe·appropriate 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?~
•
•
•
• s. M. HONGRAY v. UNiON 545
".
t-i:made ··agl1inst a person 'Who inteniionally makes a false return to a writ <'l( A
habea!" corpu~ but an unintentional misrepresentation ·an a return is not a
grouo4 for committal. [S4~B·C]
2:3 The-- view of ibis Court as expressed ip the .main judgment
•r '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
a
·:tflabeas corp~s by misteadillg ·the court by pr~.seDfing 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. [548D·E]
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 perniis~ible· in such
, cases,· resPoodents Nos. 1 (lnd :i -shalT pay Rs. 1 lac to each of the afore .. E
. mentioned two women );Vithin a period of four weeks frQD) April 23, 1984.
.
.
. .
.
.
. [5480-H; S49A)
4. Further adjourning the matter to enable.the resp0ndcnts- to 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 a·n F
eD~ounter as is usually claimed and the· only pos'.iiblc inference that· can be
drawn from circUmsraoce of the case is that both of- the_ll1 m_ust have met
,--ari unnatural death. Prima facie, it W(luld be a_o offence of murder. Who Is
'fildividuallY·or 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 n~t 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 ma~damus to th6'!ll1!Jerinte~dent' 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
preacrlbed byjb~ relev~~t provisions of the Code of Criminal Procedur~) .
0
, . · . . [S49E-F]
j
.. •
.r .
•'546 SUPRllMll COURT REPORTS [1984] 3 s.C.\l. •
c
A ' 0RIGiN>.L JuR1so1c110N : Writ Petition (Criminal) No.148.
of 19~3.
.(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. · · ,
c ' '
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 qpera-
tive portion Of the order reatls as under : · . .. , .
D
#'Accordingly, this· petition is allowed and we direct
that a ·writ of habeas corpas be iss11ed to the·resp<)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, Assis-
E ta'Jlt Pastor ofHui~n'g Baptist ~hurch, who w~re 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 'respondent~comma'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 \. . in . •
out
the affidavit and crave for · indulgence of the Hon'ble Court for
their inability to produce the above·named individuals due to
.B
circumstances beyond their control." . It was• r~itetated that c.
Daniel an4 C. Paul were not in the·custody or controi of respondent&
l., 2, and. 4, ·. To thi~ r¢turn . several .alfidavi~
.. <Ind Pteil~es
-
wort '
/
·\
s. M l!ONGRAY v. UNiON (Desai; J.) 547
annexed saying that the Anny authorities conducted an extensive A
· 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 aforemen- B
tioned 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 ad-
• jcurned 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, c
1984. On that day, a summary of enquiry made by CBI was sub-
.mitted to the -Court in which ifwas stated that 'the fieid enquiries
. ""l' 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.
D
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 ofhab~as· corpus. After a ,
preliminary enquiry and after hearing tho respon~ents 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 E
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
F
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 G
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-
ff,
. (!)· Halsbury's Laws ofEngland, Fourth Edition, Vol. 11 para. 1492 at
• page 791,
•
;;
•
548 SUPREME (:OURT REPORTS (.1984] 3 s.c. Ji.,. ,
, A tempt' is defined 'in ~ec .. 2(b) to mean wilful di;obedience to any judg-
ment decree, direction, order, writ or. other process of a Court or wil·
fnl breach 'of an und~rtaklng.gi\len to a Court.' Wilful disobedience
· to a. writ issued by the Court constitutes civil contell)pt: The ques-
tion is : whether this ·disobedience is Wilful ? Mere failure to olley
the writ may not corrstitute civit contempt depending .upon the
B facts and circumstances of ihe case.· But- wilful disobedi_ence to.a,
writ issued by.a Court constitut~s 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: ~. • ·
. c 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 a~i;.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~
D '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
of
' misleadin~ tJie con rt .. by preSel)ting a Q,isjorted V.er~ion facts :b.jl(
borne out by the r~otd:.-It is tp\lJ ~stablished, that. the respond~!!l;• I.·
1, 2 and 4 have. col}lmitted .dviC: contempt by their wllfUI diso,Q~· !'
. dien~e to the wri!· · '
Civil contempt is punishable with jmprisonment as well as fine. .
F 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~
t
· 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·
G 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 p~. to
· 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
H
(2) Halsbury's Laws of Eneland, l'ollrtl> Ellitiop, VoJ.' 9 para 100
at p. 61. .
. ,.
• s. !.!. ~Ol;GRAY v. uNioN (D~sai, j,) . 549
· p!ary costs as is permissible ill such. cases, respondents .Nos. 1 'and A
' '
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 · B
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 c
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 re~onsible for their disappearance will have to be deter-. D
·' mined by a proper, thorough an'd responsible poJi.ce investigation.
It is not neeessary to start ·casting a doubt on anyone or any parti-
cular· 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 . E
is permissible which we consider reasonable in the facts and circum-
stances of the case, we direct that ·the, ·Registrar (Judiciali shall
forward aU the pap.ers of the case ace:om·panied by a writ of . man-
da.mus to. the Superintendent of Poli~e, 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 F
of Crimiital .procedure. ·
" S. R. Rule made absolute •
•
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