Ahmed Ali v. Superintendent, District Jail

This contempt petition has arisen out of the following facts, Ahmed Ali was convicted on 27.4.82 in Sessions Case No. 50 (N-M) 80 vide G.R No. 242/77 under Section 302/34 I.P.C and sentenced to R.I for life and he was undergoing his sentence at District Jail, Nagon from 27.4.82 He was transferred to District Jail, Tezpur on 22.12.82 vide I.G Prison's order dated 8.12.82 His Criminal Jail Appeal No. 81(J) 82 was decided by the High Court on 20.11.84 convicting him under Section 324 I.P.C (instead of Section 302/34 I.P.C) and sentencing him to undergo rigorous imprisonment for three (3) years. Ahmed Ali was already in jail for about 2 years and he was to get the set off under Section 428 Cr. P.C The High Court, it appears, sent the judgment with relevant papers in Memo No. 308.Crl. dated 22.1.85 Those were forwarded to the District Jail, Nowgong. It appears, the Superintendent, District Jail, Nowgong forwarded a copy of the Judgment in G.R No. 242/77 and Sessions Case No. 50(N-M) of 1981 along with High Court Memo No. 308.Crl. dated 22.1.85 under his Memo No. 113 dated 25.1.85 on 2.2.85 to the Tezpur District Jail where it was received on 2.2.85 The Superintendent of the District Jail, Tezpur on the same day endorsed it to the then Jailor, who in turn is stated to have endorsed it to the then Assistant Jailor and no release order or modified warrant from the Sessions Court was stated to have been received at their end. It appears the Assistant Jailor stated that he did not receive the letter and hence no immediate action was taken. Ahmed Ali was retransferred from Tezpur District Jail to Nowgong Special Jail on 17.6.85 vide I.G Prisons order dated 30.5.85, on application of the convict made in 1984, without giving effect to the High Court judgment. The copy of the High Court judgment was received at Nowgong Jail on 28.7.85 He was released on 28.7.85 from the Special Jail, Nowgong where he stayed from 17.6.85 to 28.7.85, Ahmed Ali sent an application to the then Chief Justice complaining about the delay in releasing him, whereupon by order of the Chief Justice dated 11.2.86 the contempt proceeding was started.

2. By order dated 24.2.86 notice was issued to the respondent, namely, the then Superintendent of District Jail, Tezpur to appear before this Court on 17th March, 1986 on Which date we were told that the then Superintendent was not Shri A.K Das but was Shri J.C Handique. We issued notice to Shri Handique through the Inspector General of Prisons, Assam for appearance before this Court on 28th April, 1986. In obedience to this Court's Order dated 17.3.86 Shri Handique was personally present in Court on 14.5.86 as the case was not listed on 28.4.86 Meanwhile he filed an affidavit on 29.4.86 In paragraph 8 of his affidavit it was stated that on receipt of Memo No. 308.Crl. dated 22.1.85 on 2.2.85 he made his endorsement on the same day. However, according to him the relevant records and other particulars as required under the provisions of the Jail Manual were not produced before him by the Jailer, Tezpur District Jail on that day or on any other day thereafter. We accordingly considered it necessary to call for an explanation from the Jailer, Tezpur Jail, who was in-charge of the matter on 2.2.85 and we required him to show cause as to why appropriate action should not be taken against him for his failure to produce the relevant records and other particulars as required under the provisions of Rule 546 or any other relevant Rule of the Jail Manual, before the Superintendent on that day or on any other day thereafter. Notice was accordingly sent to him through the Inspector General of Prisons, Assam. The Jailer was required to be personally present in Court on 16.6.86 on which date the Jailer Shri Nilombor Dawarah was personally present in Court. So also was Shri Handique. In paragraph 3 of his affidavit Shri Dowarah stated that a copy of the judgment of G.R No. 242/77 and Sessions Case No. 50 (N—M) of 1981 along with High Court Memo No. 308.Crl. dated 22.1.85 forwarded by the Superintendent, District Jail, Nowgong reached the office of the Tezpur District Jail and he as per the distribution of works endorsed the same to the then Assistant Jailer, Shri Bikash Bijoy Dis for necessary action. In paragraph 5 it was submitted that thereafter no release order or modified warrant from the Sessions Court was received at their end and that perhaps the Assistant Jailer presuming in honest belief that he would receive release order or modified warrant, he could not proceed with further action. We accordingly wanted to know from the Assistant Jailer Shri Bikash Bijoy Das himself as to how he proceeded after the work was entrusted to him by the then Jailer. Notice was issued to him to show cause as to why appropriate action should not be taken against him for his failure to produce the relevant records and other particulars as required under the provisions of Rule 546 of any other relevant Rule of the Jail Manual, before the Superintendent, Tezpur District Jail on 2.2.85 or any other day thereafter. In his affidavit he denied the receipt of the letter endorsed by the Jailer and said that this communication was never banded over to him by the Jailer or any other officer; and that it was never shown in the Receipt book of his office. On 15.7.86 after going through the affidavits filed by the Jailer and the Assistant Jailer, each blaming the other for the culpable delay in the release of the convict Ahmed Ali, we called for a report from the Inspector General of Prisons, Assam as to the person responsible for the aforesaid culpable delay in the release of the convict and the report was submitted. The Inspector General reported that the Judgment copy of this Court was sent by the Superintendent, District Jail, Nagaon vide his letter dated 27.1.85 and its receipt was acknowledged by Shri Kula Kamar Hazarika, Assistant Jailer, Tezpur and he handed over the letter to the Jailer. The Jailer placed the letter to the Superintendent and his initial is visible in the letter. Afterwords, the Jailer, Shri N. Dowarah endorsed the letter with his instruction to the Assistant Jailer, Shri B.B Das to take necessary action. But Shri Dowarah had not taken any initiative to release the man then and there as ordered in the Judgment of the High Court. He simply endorsed it to the Assistant Jailer of Convict Branch Shri B.B Das. The Assistant Jailer however, denied the fact that the letter in question was given to him by the Jailer and there was no proof to establish that the letter was really received by Shri Das. The Inspector General of Prisons also verified the receipt register but could not find any record of receipt in the said register on 2.2.85 and there was no receipt of the letter upto 12.2.85 Result was that the convict was again transferred to the Special Jail, Nowgong, without giving effect to the High Court's order. The Inspector General of Prisons has observed that Shri J.C Handique, Executive Magistrate was a part-time officer and he could not get much time to devote himself solely for Jail Administration. But it was the duty of the Jailer who was a pretty senior officer and who was the Chief Executive Officer of the Jail as per rule 154 of Assam Jail Manual Vol. I to guide the part-time officer, Shri Handique whenever necessary. In the report the Inspector General of Prisons has enumerated what he calls, lapses on the part of the Jailor. However, the aspect of lapses and the aspect of contempt of court are some what different. In his affidavit Shri J.C Handique has tendered unqualified apology for the lapses committed unwillingly and prayed that he may be pardoned by the High Court. Shri Nilam bar Dowarah, the Jailer in paragraph 7 of this affidavit states that there was no malafide intention on his part not to release the convict and there was no intention to disregard or disobey the Court's order and accordingly prayed that he may be apologised and excused for ends of justice. The Assistant Jailer, Shri Bikash Bijoy Das states that he was consensus and conscious” about his duties, and the period being the earliest period of his service career, he would never have dared to ignore important matter like release of convict prisoners as per order of the High Court and that he was not guilty of any lapses.

3. Mr. P. Prasad, learned Public Prosecutor, Assam submits that there was no intentional disobedience to the High Court's order and what happened was purely accidental and, as such there was no contempt committed by any of the officers. According to Mr. Prasad both the Superintendent and the Jailer took prompt steps according to the conventional procedure and somehow the warrant got misplaced and the Assistant Jailer could not, therefore, act upon it. There was also transfer of the convict from Central Jail Nowgong to the District Jail Tezpur and again back to the Central Jail Nowgong during the relevant period which also resulted in some delay, but, there was no negligence on part of any of the officers.

4. Mr. C.C Deka, learned counsel appearing for the Jailer Shri Nilambar Dowarah also submits that there was no malafide intention on the part of the Jailer in not releasing the convict, or for that matter, in not personally implementing the Judgment and order of the High Court. It is submitted by Mr. Deka that the Jailer has tendered apology and considering the Jailer's future career his apology may be accepted by the Court.

5. The question is whether any or more of the above officers committed contempt of this Court by not taking immediate steps to release the convict pursuant to this Court's Judgment and Order? To answer the above question it is necessary to scrutinise to whom the judgment was sent or the order was addressed and whose duty it was to release the convict? Chapter XXX of the Rules for Superintendence and Management of Jails in the State of Assam, shortly, ‘the Rules’, deals with release.

6. Under Rule 256 the Superintendent shall satisfy himself that the amount of the prisoner's sentence and date of release, as the case may be, are correctly noted in the admission and release register, the history ticket and the warrant cover. The emeries in the registers the history ticket and the warrant cover shall be initialled by the Superintendent and the Jailer in token of their having checked and found them correct. Under Rule 257 the Superintendent shall be responsible that necessary alteration are made in the registers and documents noted in the proceeding paragraph when a prisoner's sentence is enhanced or reduced on appeal. Similar precautions shall be taken on the receipt of notice of realization of fine. The Superintendent and the Jailer shill initial these alterations. Under Rule 259 when an order of release or an order modifying a sentence or a notice of payment of fine is received in a jail, the Superintendent shall, if the prisoner has been transferred to another jail, at once forward the order or notice by registered post to the Superintendent of Jail concerned. It will be the duty of the Superintendent to obtain a receipt for the order or notice from the Superintendent of the Jail in which the prisoner is confined. Under Rule 260 Prisoners warrants shall be arranged according to dates of release and kept in monthly bundles, the warrants of prisoners to be released in a particular month being placed in one bundle and each bundle being docketed outside with the month and year. They shall be kept in a locked drawer or almirah of which the Jailer shall keep the key. Copies of Judgments, orders of Appellate Courts and orders of Government disposing of prisoner's, petitions, together with correspondence relating to payment of fine, classification, etc., shall be filed and kept with the warrant of the prisoner to whose case they relate. Under Rule 545 of the Rules the Superintendent and Jailer are responsible for the correct release of prisoners. Under Rule 546 before the convict is released from jail the Jailer shall: (a) check the conditions of sentence given in the warrant and registers and satisfy himself of the title of the prisoner to release; (b) compare the marks of identification as given on the warrant and in the jail registers with the convict; (c) produce the convict with his clothing and other property, history ticket, warrant and the jail registers of admission and release before the Superintendent. Under Rule 154 the Jailer is the Chief Executive officer of the jail and is immediately subordinate to the Superintendent. He is generally responsible for the observance of all prescribed rules and orders and for the supervision of the sub-ordinate staff. Under Rule 163 the Jailer shall be responsible for the custody of all warrants and for the strict enforcement of their terms; and that no prisoner is on any account released before his time or kept in jail beyond the termination of his sentence.

8. The Jailer, Shri Nilambar Dowarah states that on 2.2.85 a copy of the Judgment of G.R Case No. 242/77 and Sessions Case No. 50(N-M) of 1981 along with High Court's Memo No. 308.Crl. dated 22.1.85 forwarded by Superintendent, District Jail, Nagoan reached his office and he as per distribution of work endorsed the same to the Assistant Jailer Shri Bikash Bijoy Das for accessary action. He further states that he endorsed the said Judgment and Memo of the High Court to the Assistant Jailer at Tezpur but thereafter no release order or modified warrant from the Sessions Court was received at his end and perhaps the Assistant Jailer presuming in honest belief that he would receive release order or modified warrant he could not proceed with further action. He, however, believing in the allotment of duty under Rule 174 of the Rules after endorsement presumed in bonafide belief that Assistant Jailer would put up the matter ire due course and he had no malafide intention to disregard on disobey this Court's order. We, therefore, do not find any wilful or deliberate disobedience to the High Court's order.

9. The Assistant Jailer states that the communication of the Superintendent of District Jail, Nagaon sent vide Memo No. 113 dated Nagaon, the 25th January, 1985 and shown to have been received by the Jailer, Tezpur District Jail on 2.2.85 was never banded over to him by the Jailer or any other officer. This communication was never shown in the receipt book either on 2.2.85 or any other subsequent date and the aforesaid communication did not bear any seal of the District Jail. If the said communication was handed over to him be would have taken those usual steps, i.e getting it entered in the receipt book and making relevant entries on the body of the communication itself. He could not take any such steps as the document was never handed over to him by the Jailer. He, however, states that the post copy of W.T Message communicating the Judgment modifying the sentence of convict Ahmed Ali was received from the Superintendent, Special Jail, Nagaon vide Memo 464-A dated 26.7.85 This communication was depicted in the receipt register at page 110 against the entry number 279 and the fact of release of the convict was depicted in entry No. 283 at page 111. He therefore states that having not received the communication he could not take steps and as such he could not be held guilty of any negligence of duty in this regard.

10. As defined in Sec. 2(a) of the Contempt of Court Act, 1971 shortly the Act, Contempt of Court means civil contempt or criminal contempt. As defined in Clause (b) “civil contempt” means willful disobedience to any judgment, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. It implies a direct obligation or undertaking to the Court. There was no such under taking on the part of the three officers in this case, the High Court Judgment being not addressed to them personally.

11. “Criminal contempt” means the publication (whether by words, spoken, written, or by signs, or by visible representations, or otherwise of any matter or the doing of any other act whatsoever which—(i)……………….

(ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner”.

In the instant case there was no publication or doing of any act, but there was failure to take prompt and adequate steps by the officers, resulting in non-release of the convict in time.

12. It may be noted that besides the two types of contempt, namely, Civil and Criminal as defined in the Act the inherent powers of the Court had been in existence prior to the constitution and are recognised by it in Article 129 and 215. These Articles declared as regards the Supreme Court and the High Courts respectively that they are Courts of Record and have the powers of such a Court including the power to punish for contempt of itself. One of the essential attributes of a Court of Record is to exercise an inherent power in itself to protect and foster the administration of justice. It is essential to safeguard the dignity of the Court and protect it from any attack from any one which would undermine this dignity and lower the Court's prestige in the eyes of the common map. So what would offend this dignity and lower the Court's prestige is a matter for the Court to determine. A fortiori what is contumacious is for the Court to decide. Its discretion cannot be confined within the four walls of a definition. This does not mean that the Court shall not be guided by the definitions given in the Act but the categories of contempt may not be closed by the definitions.

13. It is settled that mere unintentional disobedience is not enough to hold one guilty of contempt. Although contempt may be committed, in the absence of willful disobedience on the part of the contemner, be will not be held guilty unless the contempt involves a degree of fault or misconduct. Thus accidental or unintentional disobedience is not sufficient to justify one's being held guilty of contempt. The Court again is to be satisfied that the disobedience to an order or undertaking being clear and unambiguous and the guilt has been proved beyond reasonable doubt. In the instant case, there is no mention of any release warrant. Again as a general rule no order of Court requiring a person to do or abstain from doing any act may be enforced unless a copy of the order has been served personally on the person required to door abstain from doing any action question. In the instant case there was such direct order served on the officers. Often it is necessary to insist that the copy of the order served must be endorsed with a notice informing the person on whom the copy is served that if he neglects to obey the order within the time specified or where the order is prohibitory, if he disobeys the order, he is liable to process of execution to compel him to obey it. The Court will punish disobedience to an order of the Court, or non-compliance with an undertaking, if satisfied that the terms of the order or undertaking were clear and unambiguous, that the contemners had proper notice of those terms and their breach has been proved beyond reasonable doubt.

14. Applying the above principles to the facts of the instant case we do not find any deliberate or willful disobedience to this. Court's order and, as such, we do not held the officers guilty of contempt. We also take into consideration the apologies tendered by the Superintendent and the Jailer and the frank statement made by the Assistant Jailer, we are, however, of the view that, because of undue detention in jail beyond the due date of his release the ex convict Ahmed Ali is entitled to reasonable compensation from the State. We accordingly order that Rs. 2,000/- (Rupees two thousand) be paid to him by the State as a measure of consolation, if not compensation, we are also inclined to express that such instances should not recur in future and, if recur, will be serverely dealt with. The administration of justice should not be clogged by such instances at any level.

In the result, the petition is disposed of.