Sebastian M. Hongray v. Union of India

Two men taken to an Army camp in Manipur in 1982 had disappeared. The Supreme Court had issued a writ of habeas corpus for their production, but the Union of India could not produce them. The Court held the respondents guilty of civil contempt, ordered Rs 1 lakh exemplary costs for each of the two men's wives, and directed a police investigation into an offence of murder.

Quick Revision

Read the full judgment: Indian Kanoon (unofficial copy)

Parties

Sebastian M. Hongray — petitioner in Writ Petition (Criminal) No. 148 of 1983; the formal applicant.

Mrs. C. Thingkhuila — wife of Shri C. Daniel; one of the proper applicants, according to the Court.

Mrs. C. Vangamla — wife of Shri C. Paul; the other proper applicant.

Union of India — respondent No. 1.

Secretary, Ministry of Home Affairs — respondent No. 2.

Commandant, 21st Sikh Regiment, Phungrei Camp — respondent No. 4.

C. Daniel and C. Paul — the missing persons: C. Daniel, retired Naik Subedar of Manipur Rifles and Headmaster of the Junior High School of Huining Village; C. Paul, Assistant Pastor of Huining Baptist Church.

Procedural History

1. On 24 November 1983 the Court, by its judgment and order, allowed the petition and directed a writ of habeas corpus to respondents 1, 2 and 4 (Desai, J.).
2. The Registry issued the writ, served on the first, second and fourth respondents (Desai, J.).
3. A return on affidavit by Ajai Vikram Singh, Director, Ministry of Defence, dated 9 December 1983, was produced on 12 December 1983 (Desai, J.).
4. The matter was twice adjourned at the request of the Attorney General. It was posted on 19 April 1984, when a summary of enquiry made by the CBI was submitted (Desai, J.).
5. The Court decided the question of contempt and directions on 23 April 1984 (Desai, J.).

Facts

1. C. Daniel and C. Paul were taken to Phungrei Camp by jawans of the 21st Sikh Regiment on 10 March 1982 (Desai, J.).
2. The operative order of 24 November 1983 commanded respondents 1, 2 and 4 to produce them before the Court on 12 December 1983 and file the return (Desai, J.).
3. The affidavit of Ajai Vikram Singh said the respondents, with all will and best efforts, could not produce them, for circumstances beyond their control. It said they were not in the custody or control of respondents 1, 2 and 4 (Desai, J.).
4. Several affidavits and messages said the Army authorities conducted an extensive search with nothing fruitful. Surendra Kumar, Deputy Secretary, Ministry of Home Affairs, said the two were not in the custody or control of the second respondent (Desai, J.).
5. The Central Bureau of Investigation (CBI) had been directed to enquire to locate the two persons (Desai, J.).
6. The CBI summary of 19 April 1984, submitted by the Deputy Inspector General of Police, said field enquiries had yielded no results and it was not possible to locate them. The headnote adds that a copy of the Deputy Inspector General of Police's report supported the return (Desai, J.).
7. The respondents had asserted that C. Daniel and C. Paul left Phungrei Camp alive with their compatriots. The Court had rejected this in the main judgment (Desai, J.).

Issues Raised

1. What is the appropriate mode of enforcing obedience to a writ of habeas corpus?
2. Was the respondents' disobedience of the writ wilful, so as to amount to civil contempt under Section 2(b) of the Contempt of Courts Act, 1971?
3. What relief and costs should follow, and what should be done about the missing persons?

Arguments Contended

For the petitioner (Ms. Nandita Haksar and Mr. C.S. Vaidyanathan): the judgment does not record submissions on the contempt question separately. The Court notes the petitioner's formal application and the position of the two wives.

For the respondents:

• The learned Attorney General appeared for respondents 1, 2 and 4 (Desai, J.).
• The Union of India, through Ajai Vikram Singh, said that with all will and best efforts they could not produce the two men, for reasons beyond their control (Desai, J.).
• They said C. Daniel and C. Paul were not in the custody or control of respondents 1, 2 and 4 (Desai, J.).
• They relied on affidavits and messages of an extensive Army search and a CBI enquiry. They asked for indulgence, and the matter was twice adjourned at the Attorney General's request (Desai, J.).

Court's Reasoning

The judgment is by Desai, J. for the Bench of D.A. Desai and O. Chinnappa Reddy, JJ. The judgment has no numbered paragraphs, so each step ends with the judge's name.

Desai, J. (for the Bench)

The writ and the return

1. Noted: The Court sets out the operative portion of its order of 24 November 1983. It ordered respondents 1, 2 and 4 to produce C. Daniel and C. Paul on 12 December 1983 and file the return. (Desai, J.)
2. Noted: It was obligatory for respondents 1, 2 and 4 to file the return and produce the two men. The return of 9 December 1983 pleaded inability. (Desai, J.)
3. Noted: The Court records the affidavits, the CBI enquiry, two adjournments and the CBI summary of 19 April 1984. (Desai, J.)
4. Noted: The Court had, after a preliminary enquiry and after hearing the respondents, rejected their contention that the men were not last seen alive in the custody of the fourth respondent. It then directed the writ. (Desai, J.)
5. Held: In compliance with the mandatory direction in a writ of habeas corpus, the person to whom it is directed must produce the body of the person alleged to be unlawfully detained on the specified day and make a formal return. (Desai, J.)
6. Held: Here the writ was issued, but there was a failure to produce the missing persons and to file the return as the law requires. (Desai, J.)

Contempt and its enforcement

1. Noted: The question is the appropriate mode of enforcing obedience to a writ of habeas corpus. (Desai, J.)
2. Noted: The Contempt of Courts Act, 1971 defines contempt of court in Section 2(a) as civil or criminal contempt. Section 2(b) defines civil contempt as wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court, or wilful breach of an undertaking given to a Court. (Desai, J.)
3. Held: Wilful disobedience to a writ issued by the Court is civil contempt. The question is whether the disobedience is wilful. (Desai, J.)
4. Held: Mere failure to obey the writ may not be civil contempt, depending on the facts and circumstances. But wilful disobedience is. (Desai, J.)
5. Noted: It is well settled that the appropriate mode of enforcing obedience to a writ of habeas corpus is committal for contempt. A committal order may be made against a person who intentionally makes a false return, but an unintentional misrepresentation is not a ground for committal. (Desai, J.)
6. Held: The main judgment shows that the respondents' assertion, that C. Daniel and C. Paul left Phungrei Camp, is not correct. An attempt was made to suggest they left alive with their compatriots, to avoid responsibility for their mysterious disappearance. (Desai, J.)
7. Noted: The Court had rejected that submission as untenable. So there was wilful disobedience by misleading the Court with a distorted version of facts not borne out by the record. (Desai, J.)
8. Held: It is established that respondents 1, 2 and 4 committed civil contempt by their wilful disobedience to the writ. (Desai, J.)

Punishment and exemplary costs

1. Noted: Civil contempt is punishable with imprisonment and fine. The court may also order the party in contempt to pay the costs of the application. A fine can also be imposed. (Desai, J.)
2. Held: In these circumstances, the Court does not propose to impose imprisonment or any fine. (Desai, J.)
3. Held: It has regard to the torture, agony and mental oppression of Mrs. C. Thingkhuila and Mrs. C. Vangamla, the proper applicants. Although the formal application was by Sebastian M. Hongray, the Court directs exemplary costs. (Desai, J.)
4. Held: Respondents 1 and 2 must pay Rs 1 lakh to each of the two women within four weeks of the order. (Desai, J.)

Further steps and the direction to investigate

1. Noted: A query was put to the Attorney General about the next step. The Court made clear that further adjourning the matter to trace the two men is to shut the eyes to reality and pursue a mirage. (Desai, J.)
2. Held: The Court is inclined to direct registration of an offence and an investigation. It expresses no opinion on what fate befell the two men, except that they did not meet their end in an encounter, as is usually claimed. (Desai, J.)
3. Held: The only possible inference from the circumstances is that both must have met an unnatural death. Prima facie, it would be an offence of murder. (Desai, J.)
4. Held: Who is individually or collectively the perpetrator, or responsible for the disappearance, must be decided by a proper, thorough and responsible police investigation. It is not necessary to cast doubt on any particular person. (Desai, J.)
5. Held: There is prima facie material on record to conclude that Shri C. Daniel and Shri C. Paul are not alive and met an unnatural death. The Union of India cannot disown responsibility. (Desai, J.)
6. Held: On this inference, the Registrar (Judicial) must forward all the papers with a writ of mandamus to the Superintendent of Police, Ukhrul, Manipur State. They are to be treated as information of a cognizable offence, and an investigation begun under the Code of Criminal Procedure. (Desai, J.)
7. Held: The Rule is made absolute. (Desai, J.)

Authorities

• No cases are named in the judgment text. The Court states the rule on enforcing a writ of habeas corpus by committal for contempt, quoting a passage marked with a footnote reference. The source does not give the name of the work. A second footnote marker follows the sentence on costs of the application, and its text is not given (Desai, J.).
• Main judgment of 24 November 1983: the earlier judgment in this petition, whose findings the Court relied on (Desai, J.).

Provisions mentioned

• Section 2(a) and Section 2(b), Contempt of Courts Act, 1971: contempt of court means civil or criminal contempt. Civil contempt means wilful disobedience to a judgment, decree, direction, order, writ or other process of a court, or wilful breach of an undertaking.
• Article 32, Constitution: the original jurisdiction under which the writ petition was filed (headnote).
• Rule 6, Order XLVII, Supreme Court Rules, 1966: exemplary costs by way of compensation (headnote).
• Code of Criminal Procedure: provisions on investigating information of a cognizable offence.

Judgement

1. Respondents 1, 2 and 4 are held to have committed civil contempt by wilful disobedience to the writ of habeas corpus.
2. No imprisonment and no fine are imposed.
3. Respondents 1 and 2 must pay Rs 1 lakh to each of Mrs. C. Thingkhuila and Mrs. C. Vangamla as exemplary costs, within four weeks of 23 April 1984.
4. The Registrar (Judicial) must forward all the papers of the case, with a writ of mandamus, to the Superintendent of Police, Ukhrul, Manipur State. The papers are to be treated as information of a cognizable offence, and the police must commence investigation as prescribed by the Code of Criminal Procedure.
5. The Rule is made absolute.

Legal Principle / Ratio

A person served with a writ of habeas corpus must produce the detained person and make a return. Wilful disobedience of the writ, including giving a misleading and distorted version of facts, is civil contempt punishable by imprisonment, fine or costs. Here the Court used exemplary costs and directed a police investigation. The Court said that "Wilful disobedience to a writ issued by the Court constitutes civil contempt".

Critical Analysis

Analysis based on the judgment text.

The Court did not fix who is responsible. It said the two men must have met an unnatural death and that it would be prima facie an offence of murder. It left the question of who is responsible to a police investigation.

Costs were used in place of a fine. The Court gave exemplary costs to the wives, who were not the formal applicants. The judgment text gives no source for the sum beyond calling it a permissible measure. The headnote cites Rule 6 of Order XLVII of the Supreme Court Rules, 1966.

The Court did not say what follows if the payment is not made. The order sets four weeks and names the respondents who pay. It does not describe any consequence of default.

Significance

• The Court confirmed that wilful disobedience of a writ of habeas corpus is civil contempt, and that committal is the appropriate mode of enforcement.
• It awarded exemplary costs to the wives of the missing men and refused to adjourn the matter further.
• It directed a police investigation, treating the papers as information of a cognizable offence.

Exam-Important Points

• Facts in one line: the respondents could not produce two men taken to an Army camp. The Court held them in civil contempt and awarded Rs 1 lakh to each wife.
• Rule: wilful disobedience to a writ is civil contempt under Section 2(b). Mere failure may not be.
• Rule: an unintentional misrepresentation in a return is not a ground for committal, but an intentional false return is.
• Trap: the Court imposed no imprisonment or fine. It gave exemplary costs.
• Trap: costs were payable to the wives, who were the proper applicants, though the formal application was by Sebastian M. Hongray.
• Directions: Rs 1 lakh each within four weeks; police investigation by the Superintendent of Police, Ukhrul.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.