J.A Patil, J.:— The petitioner who is an accused in a criminal case has filed this petition against respondent No. 1 who is the Investigating Officer in the same case and prayed for an order holding respondent No. 1 guilty for having committed contempt of Court. The facts which give rise to the alleged contempt may be stated in brief as follows:

2. The petitioner is a trustee of Bafna Charitable Trust which is a public charitable trust. This trust owns certain land at village Nahur, Taluka Kurla, Mumbai. It appears that there was some transaction entered with Konark Builders and Developers Pvt. Ltd. in connection with the said land. One Umesh C. Karia is the director of the said firm of Builders and Developers. On 13-4-1992, said Umesh Karia filed a private complaint in the Court of Metropolitan Magistrate, 33rd Court, Mumbai against petitioner and two others alleging that they had agreed to transfer the development rights of the said property and obtained various amounts by making representations but failed and neglected to carry on their obligations. Shri Umesh Karia alleged that the petitioner and two others had committed offences punishable under section 420 read with sections 120(B) and 109 of the Indian Penal Code.

3. The learned Magistrate upon receipt of the complaint forwarded the same to the Crime Branch (C.I.D) for investigation under section 156(3) of the Criminal Procedure Code. It may be pointed out that incidentally the investigation of the said case came to be entrusted to respondent No. 1 who is Inspector of Police attached to the Crime Branch. The petitioner has stated that pursuant to summons issued by respondent No. 1, he attended the offence of the Crime Branch on several occasions and also produced relevant documents concerning the case. The petitioner has alleged that respondent No. 1 was acting as a tool in the hands of the complainant Umesh Karia and that he (respondent No. 1) tried to force the petitioner to settle the matter with the complainant. It is further alleged that respondent No. 1 even threatened to arrest the petitioner in case he failed to settle the matter.

4. In view of the continuous threats given by respondent No. 1, petitioner reasonably apprehended that he was likely to be arrested by the police. Therefore, on 6-7-1993 the petitioner moved anticipatory bail application No. 575 of 1993 which came up before the learned Additional Sessions Judge, Mumbai for hearing on 7-7-1993. According to the petitioner, at that time learned Public Prosecutor appearing in the matter made a statement that the petitioner would not be arrested until final disposal of the application for anticipatory bail. He also made a request to the Court to direct the petitioner to attend the office of the respondent No. 1 as and when called for interrogation. It appears that hearing of the application for anticipatory bail was thereafter adjourned to several dates. According to the petitioner, during the period from 26-6-1993 to 8-9-1993, he attended the office of respondent No. 1 on 11 occasions. The petitioner has pointed out that on all the adjourned dates of hearing, the Public Prosecutor repeated the undertaking that the petitioner would not be arrested until final disposal of the application.

5. On 21-9-1993 at about 5.15 p.m, the petitioner received summons dated 17-9-1993 issued by respondent No. 1 calling upon him to attend his office at 3.00 p.m on 22-9-1993 and produce all the documents which were called as per the previous summons. According to petitioner at about 6.30 p.m he came down from his office and was almost getting into his car when he found respondent No. 1 and two members of his staff who were awaiting for him to come down. The petitioner has alleged that the respondent No. 1 forced him to accompany to the office of the Crime Branch on the pretext that the Jt. Commissioner of Police wanted to meet the petitioner immediately. The petitioner has further alleged that he and his three staff members who had accompanied him were detained in the room till about 10.00 p.m Thereafter respondent No. 1 told the petitioner that he was placed under arrest in connection with the case which he was investigating. The petitioner brought to the notice of the respondent No. 1 that he could not arrest him in view of the undertaking given by the P.P and that his arrest would amount to illegal detention as well as contempt of the Court. However, respondent No. 1 didn't listen to the petitioner. On the next date i.e, on 22-9-1993, respondent No. 1 took the petitioner to the Jt. Commissioner of Police who asked the petitioner whether there was any possibility of settlement in the matter. The petitioner replied in negative. Thereafter respondent No. 1 brought out the petitioner and handcuffed him. It is alleged that respondent No. 1 even permitted the photographer who was brought by the original complainant to take his photographs in handcuffed position. Later on the said photograph came to be published in a local newspaper, with the result that the petitioner was put to humiliation and social ridicule.

6. The petitioner has further averred that on 22-9-1993 he was produced before the Additional Chief Metropolitan Magistrate. At that time also, the petitioner brought to the notice of the learned Magistrate about the undertaking given by the P.P in the Sessions Court. Respondent No. 1 however, made a statement to the effect that the undertaking given by the P.P was conditional i.e, the petitioner was not to be arrested if he co-operated with the police in the investigation. The learned Additional Chief Metropolitan Magistrate after hearing both the sides, remanded the petitioner to police custody till 27-9-1993.

7. Immediately on the next day i.e, on 23-9-1993 the petitioner moved Regular Bail Application bearing No. 912 of 1993 in the City Sessions Court, Mumbai. The learned Additional Sessions Judge granted interim bail to the petitioner on certain conditions. Thereafter on 5-10-1993, the said bail application along with other anticipatory bail applications were heard together and on 11-10-1993 learned Additional Sessions Judge confirmed the bail granted to the petitioner. The petitioner had pointed out that while passing the said order, the learned Additional Sessions Judge passed severe strictures against respondent No. 1. The petitioner has submitted that he is 65 years old and has been suffering from serious heart trouble. He has pointed out that in view of the mental torture and harassment by respondent No. 1 he has suffered two serious heart attacks, the first on 4-10-1993 and the second on 28-2-1994. The petitioner has therefore submitted that respondent No. 1 has committed the contempt of Court and by deliberately backing out the categorical undertaking given on his behalf by the P.P that the petitioner would not be arrested until final disposal of his anticipatory bail application. The petitioner has therefore, prayed for an order, holding respondent No. 1 guilty of committing contempt of Court.

8. Respondent No. 1 has filed in all five affidavits; first on 31-7-1997, second on 12-11-1997, third on 17-11-1997, 4th on 18-11-1997 and 5th on 16-12-1997. It is not at all disputed by respondent No. 1 that he had arrested the petitioner on 21-9-1993. In his first affidavit dated 31-7-1997, respondent No. 1 has tried to explain the circumstances in which according to him he was forced to arrest the petitioner. It is contended by him that the undertaking given by the P.P that the petitioner would not be arrested until final disposal of the application for anticipatory bail was conditional and the condition was that the petitioner was to co-operate with the investigation. Respondent No. 1 has stated that the investigation of the case was lingering for more than one year and no progress could be made because of the non-co-operative attitude adopted by the petitioner. According to him it was a serious case involving about one crore of rupees. He has submitted that he honestly and sincerely believed that he could arrest the petitioner since he was not co-operating in the investigation. In his affidavit dated 18-11-1997, the respondent No. 1 has denied that he had handcuffed the petitioner and permitted the photographer to take out petitioner's photographs in handcuffed position. In his affidavit dated 17-11-1997, respondent No. 1 tendered his unconditional apology and submitted that he had no intention to flout the order passed by the Additional Sessions Judge. According to him he has put in 22 years unblemished service in the police Department. In his last affidavit dated 16-12-1997, respondent No. 1 has pointed out that he has received 28 rewards in his service and that he will retire after putting in 10 years more service. He has therefore, prayed for accepting his unconditional apology.

9. We have heard Shri Bobde, learned counsel for the petitioner, Shri Mundergi learned counsel for the respondent No. 1 and Shri C.J Sawant, learned Advocate General for the State (Respondent No. 2). We have also perused the relevant documents on record. There is no dispute of the fact that the petitioner was arrested on 21-09-1993 by respondent No. 1. It is also not in dispute that the petitioner had filed application for anticipatory bail and the same was pending when his arrest in question came to be made by respondent No. 1. There also no dispute on the fact that the P.P representing State in the said application for anticipatory bail had assured the Court that the petitioner would not be arrested until final disposal of the said application. However, despite this assurance given to the Court, respondent No. 1 arrested the petitioner. According to the petitioner he was attending the office of respondent No. 1 as per the Courts directions and that he had produced all the relevant documents. Respondent No. 1 on the other hand has contended that the petitioner had made default in appearing before him on one or two occasions and that he was not co-operating with him in the investigation. This disputed fact need not and could not be gone into in this petition. Assuming that the petitioner had on one or two occasions failed to attend the office of respondent No. 1, still that didn't afford a good ground for the respondent No. 1 to straight way arrest the petitioner without intimating the concerned Court. In that event, he could have first brought that fact to the notice of the Court and then taken appropriate steps. What is disturbing is the fact that as per the summons dated 17-9-1993, respondent No. 1 had called upon the petitioner to attend his office on 22-9-1993. It is shocking and surprising to find that respondent No. 1 hastened to arrest the petitioner on 21-9-1993 itself without affording him an opportunity to appear before him on the next date as mentioned in the summons. This conduct on the part of the respondent No. 1 is highly objectionable and it goes to substantiate the petitioner's allegation that respondent No. 1 was acting as a tool in the hands of the original complainant Umesh Karia. There is absolutely no justification in the petitioner's arrest on 21-9-1993 when he was asked to attend the office of respondent No. 1 on 22-9-1993.

10. Shri Bobde learned counsel for the petitioner, drew our attention to certain strictures passed by the learned Additional Sessions Judge who confirmed grant of bail to the petitioner. In para 8 of his order, the learned Judge has observed as under:

“From the aforesaid facts and circumstances and particularly the fact that the alleged Memorandum of Understanding was alleged to have been arrived at somewhere in 1987 and no complaint in respect thereof was filed till 1992, it clearly appears that the complaint made against accused Nos. 2 and 3 is simply to bring undue pressure upon them and with a view to somehow or other pressurise the said accused Nos. 2 and 3 to agree to some settlement as may be proposed by the complainant. This fact will be further clear from the fact that although the applications for Anticipatory Bail Applications were made practically at the same time by all the three accused and in spite of there being a statement on behalf of the respondents by the Chief Public Prosecutor to the effect that the accused would not be arrested, still on or about 21-9-1993 accused No. 2 Sumermal Mishrimal Bafna was arrested and thereby there was contemptuous breach of the statement made by the Chief Public Prosecutor.”

11. In para 9 of his order, the learned Judge has further observed:

“If one peruses the reports made by the police in the above Anticipatory Bail applications and also to the Criminal Bail Application, it would appear that the police has merely acted as the agent of the complainant and has not tried to make any independent and fair enquiry. Although from the above circumstances and on the admission of the complainant himself it clearly appears that there was neither any payment made to accused No. 2 Sumermal Mishrimal Bafna, nor there was any alleged representation on his part, still not only wrong statement had been made in the police report, but he was also arrested.”

12. If we consider the conduct of respondent No. 1 in the entire matter, it will be clear that the strictures passed against respondent No. 1 are quite justified. We are of the opinion that respondent No. 1 acted in high handed manner and joined hands with original complainant. As a matter of fact when the investigation of the complaint was entrusted to respondent No. 1, he was supposed to carry fair and impartial investigation without siding any party. However, in the instant case, it is clear that respondent No. 1 misused his powers to the detriment of the petitioner obviously with a view to pressurize him and make him to settle the dispute with the complainant. This conduct on the part of respondent No. 1 is highly objectionable. There is no doubt that respondent No. 1 has intentionally flouted the undertaking given by the P.P to the Court and indulged in the act of arresting the petitioner in the face of that undertaking.

13. Shri Mundergi learned advocate for respondent No. 1 didn't justify the conduct of the respondent No. 1 and only prayed for taking a lenient view of the matter by taking into consideration the service record of the respondent No. 1. We have given anxious thought to the submission of Shri Mundergi and we find it difficult to agree with him.

14. Shri Bobde learned counsel for the petitioner drew our attention to decision in Arts and Commerce College, Pen v. The State of Maharashtra, (1994) 3 BCR 309 to which one of us namely Shri A.P Shah, J. was a party. In that case, the Division Bench found that there was wilful disobedience of the Court's order and the apology offered by the contemnor was more as a fact rather than genuine penitence or good grace. The Court observed:

“The course and sequence of events — which has become common these days, is first the callous in difference to Court orders, then some lame excuses and justification, and as a last resort to tender apology to get rid of the situation on the assumption that Courts sparingly use the discretion of punishment under the Contempt of Courts Act.

Day in and day out, the law abiding aggrieved persons are bringing to the notice of the Courts the increasing instances of scant regard to the orders of Court particularly by the bureaucracy. Authority of the Court is being eroded, giving serious blow to the very concept of rule of law. Courts do not resort to punishment under the Contempt of Courts Act as a matter of course. The power is used sparingly. But it appears that wrong signals are given by that generous attitude. Punishment is not for the Judges who have passed the judicious impersonal order, but is for protecting those law abiding persons who by compulsion and not by choice, are driven to Courts. Offence is thus in the nature of sui generis and Courts cannot continue to be mere silent spectators to what is happening when there is a duty to act. With wilful defiance the Court has to grapple with loofs of steel, for the punishment is intended to have deterrent effect upon those who are similarly inclined.”

15. Shri Bobde also drew our attention to the decision in Tapan Kumar Mukherjee v. Sri Heromoni Mondal, (1991) 1 SCC 397 : AIR 1991 SC 281. In that case, the Supreme Court found that the concerned Government Officer had not wilfully disobeyed the order of the High Court. He has further given benefit of doubt. However, following observations made by the Supreme Court are material and need to be reproduced:

“In the circumstances of this case we have, though with a certain degree of reservation, extended to the appellant the benefit of doubt but we should like to put out a warning that where a case of wilful disobedience is made out, the Courts will not hesitate and will convict the delinquent officer and that no lenience in the Court's attitude should be expected from the Court as a matter of course merely on the ground that an order of conviction would damage the service career of the concerned officer.”

16. We are of a considered view that this is not a fit case wherein respondent No. 1 can be shown leniency. In our view, he deserves to be dealt with severely. We therefore, hold respondent No. 1 guilty of committing the contempt of Court and sentence him to simple imprisonment for seven days with a fine of Rs. 2,000/- i/d simple imprisonment for seven days.

17. On the request of the learned advocate for the Contemnor, operation of this order is stayed for two months.

Order accordingly.