the plaintiff had obtained injunction against
certain defendants and the assets of one such defendant against whom the
injunction was granted, were held by a bank. The bank was served with a
copy of the injunction but the concerned defendant had not yet been served.
While considering the question whether any disposal of assets belonging to
the defendant by the bank would make it liable for committing contempt of
Court, it was stated as under:
“I think that the following propositions may be stated as to the
consequences which ensue when there are acts or omissions
which are contrary to the terms of injunction. (1) The person
against whom the Order is made will be liable for contempt of
Court if he acts in breach of the Order after having notice of it.
(2) A third party will also be liable if he knowingly assists in the
breach, that is to say if knowing the terms of the injunction he
willfully assists the person to whom it was directed to disobeyit. This will be so whether or not the person enjoined has had
notice of the injunction… I will give my reasons for the second
proposition and take first the question of prior notice to the
defendant. It was argued that the liability of the third person
arose because he was treated as aiding and abetting the
defendant (i.e. was an accessory) and as the defendant could
himself not be in breach unless he had notice it followed that
there was no offence to which the third party could be an
accessory. In my opinion this argument misunderstands the true
nature of the liability of the third party. He is liable for
contempt of court committed by himself. It is true that his
conduct may very often be seen as possessing a dual character
of contempt of court by himself and aiding and abetting the
contempt by another, but the conduct will always amount to
contempt by himself. It will be conduct which knowingly
interferes with the administration of justice by causing the
Order of the court to be thwarted.”
C] The extent of liability of third party in such actions was
considered by the House of Lords in Attorney General v. Times
Newspapers Ltd. and another (1991) 2 All ER 398
. In that case the Attorney General had
brought action against two newspapers seeking permanent injunction
restraining them from publishing material from a book written by a person
who was formerly a member of the security service and by terms of his
employment was bound by confidentiality which would stand breached if his
memoirs were published. While the interlocutory injunctions restraining
publication of the material pending trial of such action was granted against
those two newspapers, three other newspapers published extensive extracts
and summaries of the book following which proceedings for criminal
contempt against them were brought by the Attorney General. At the trial of
those proceedings those three other newspapers were held to be guilty of
criminal contempt. Lord Brandon of Oakbrook concluded as under:
“………………The claims of the Attorney General in the
confidentiality actions were for permanent injunctions
restraining the defendants from publishing what may
conveniently be called Spycatcher material. The purpose of the
Millet injunctions was to prevent the publication of any such
material pending the trial of the confidentiality actions. The
consequence of the publication of Spycatcher material by the
publishers and editor of the Sunday Times before the trial of the
confidentiality actions was to nullify, in part at least, the
purpose of such trial because it put into the public domain part
of the material which it was claimed by the Attorney General in
the confidentiality actions ought to remain confidential. It
follows that the conduct of the publishers and editor of the
Sunday Times constituted the actus reus of impeding or
interfering with the administation of justice by the court in the
confidentiality actions.”
D] In a separate concurring opinion Lord Jauncey of Tullichettle
stated as under:
“I turn to consider whether there is any reason why established
principle should not be applied to the situation in this case. I do
not accept the proposition that to apply established principles in
the foregoing circumstances would effectively be to convert
every injuction from an order in personam to an order contra
mundum. That proposition ignores the distinction between the
breach of an order by the person named therein and interference
with the course of justice resulting from a frustration of the
order by the third party.”
Reportable
IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
CONTEMPT PETITION (CIVIL) NO.374 OF 2014
IN
CRIMINAL APPEAL NO.1834 OF 2013
Sita Ram
Versus
Balbir @ Bali
Dated:December 15, 2016.
Citation:(2017) 2 SCC 456
1. This petition under Section 12 of the Contempt of Courts Act, 1971
(hereinafter referred to as the ‘Act’) highlights willful and deliberate
violation of the Judgment and Order dated 24.10.2013 passed by this Court
in Criminal Appeal No.1834 of 2013 and seeks initiation of appropriate
proceedings under the Act.
2. The petitioner, original informant in FIR No.141 dated 06.05.2011
with Police Station Kalanaur, District Rohtak, Haryana for offences
punishable under Sections 148, 302 and 307 of the Indian Penal Code read
with Section 149 IPC and Section 25 of the Arms Act, was the appellant in
Criminal Appeal No.1834 of 2013 assailing the Order dated 11.02.2013
passed by the High Court of Punjab and Haryana granting bail to the
respondent. While setting aside the Order granting bail, this Court in its
Judgment and dated 24.10.2013 observed as under:
“4. …………… In the FIR, the Appellant/Informant has
stated that Respondent No.1 fired upon his brother-in-law
Vishnu from his revolver and thereafter Sombir also fired upon
Vishnu. The other persons mentioned also opened fire
indiscriminately leading to firearm injuries on several persons
who were at the shop of the Appellant/Informant at that fateful
time. ……………………………….
5. ………………………. Respondent No.1 is indubitably a
very influential person in the area, at the time of the incident he
was an ex-MLA. Section 109 and Section 149, as envisaged
under the IPC have been cited. By Orders dated 23.1.2013, the
Addl. Sessions Judge has, on a perusal of the police report and
material documents, found existence of a prima facie case under
Sections 148, 302 read with Section 149, 307 read with Sections
149, 323 read with Section 149 IPC against all the accused and
in addition to this a prima facie case under Section 302 IPC, 109
IPC and 25 of Arms Act against Balbir @ Bali, a prima facie
case under Section 307 IPC against Naresh and Rishi, a prima
facie case under Section 25 of Arms Act against Dinesh @ Kala
and Sunil and a prima facie case under Section 27 of Arms Act.
6. Keeping all these factors in perspective, especially the
wide-scale injuries suffered by several persons, there is a strong
prima facie case of the involvement of the Respondent No.1 in
the alleged crimes. Moreover, the antecedents of Respondent
No.1 are such that a reasonably strong apprehension of his
tampering with witnesses or leveling of threats is imminent and
omnipresent. The severity of the attack should not be
overlooked. For these manifold reasons, we set aside the
impugned Order dated 11.2.2013, allow the Appeal and cancel
the bail granted to Respondent No.1 who shall surrender to
custody forthwith.”
3. Thus, while setting aside the Order granting bail, this Court took into
account the role played by the respondent in firing upon the deceased and
the fact that he was an influential person in the area with criminal
antecedents. In keeping with direction to surrender to custody forthwith, it
was expected of the respondent to do the needful. However, the record
indicates otherwise and shows attempts to evade execution of consequential
non-bailable warrants issued from time to time leading to delays in trial.
The Orders passed by the Trial Court on 20.11.2013, 05.02.2014,
15.03.2014, 16.04.2014 and 14.05.2014 bear testimony in that behalf, which
Orders were as under:
20.11.2013
“Present: Shri A.S. Kadian, Public Prosecutor for the
State assisted by Shri R.K. Sehgal, counsel for the complainant.
Accused Sunil and Ajay in custody, whereas all the
remaining accused except accused Balwan alias Balli on bail,
with Shri O.P. Chugh, Shri Surinder Verma, Advocates.
Accused Balwan absent.
Three PWs namely Sita Ram, Ram Chander and Ram
Mehar are present, but their statements could not be recorded as
warrant of arrest issued against accused Balwan not received
back either executed or unexecuted and an application seeking
exemption of accused Balwan alias Balli from personal
appearance for today along with affidavit of his son and
photocopy of the Special Criminal Review Petition, has been
moved. Heard. Perused. Since there is no stay granted by
Hon’ble Supreme Court of India in this case and further more
bail of accused-applicant Balwan had already been cancelled by
Hon’ble Supreme Court of India, thus there is no merit in this
application and the same is hereby dismissed and fresh warrant
of arrest of accused Balwan be issued, 7.12.2013. PWs present
today stand discharged and would be summoned after procuring
the presence of accused Balwan.
Since there is non-compliance of the issuance of warrant
of arrest against accused Balwan in view of the Order dated
24.10.2013 as passed by Hon’ble Supreme Court of India,
therefore, notice be given to SHO, Police Station Kalanaur as to
why warrant of arrest of accused Balwan alias Balli have not
been sent back to this court either executed or unexecuted, for
7.12.2013.”
05.02.2014
“Present: Shri A.S. Kadian, Public Prosecutor for the State.
Accused Ajay in custody, whereas all the remaining accused on
bail except accused Balwan, with counsel Shri O.P. Chugh,
Advocate…………………………
Warrant of arrest of accused Balwan received back
unexecuted. Now fresh warrant of arrest of accused Balwan be
issued through SP Rohtak for 15.03.2014. Notice to surety and
identifier of accused Balwan alias Bali be also issued for the
date fixed.”
15.03.2014
“Present : Shri Surender Pahwa, Public Prosecutor for the State.
Accused Ajay in custody, whereas all the remaining accused on
bail except accused Balbir alias Bali.
Warrant of arrest of accused Balbir alias Bali received
back unexecuted. Now fresh non-bailable-warrant against
accused Balbir alias Bali be issued through SP Rohtak for
16.4.2014. Notice to his surety and identifier be issued through
SHO concerned for the date fixed.
16.04.2014
“Present: Shri Surender Pahwa, Public Prosecutor for the State.
Shri O.P. Chugh, counsel for accused Rohtas and Balbir @ Bali.
Accused Ajay in custody while all the remaining accused on
bail except accused Balbir @ Bali…………………….
An application has been moved on behalf of accused
Balbir @ Bali in which it is stated that accused Balbir @ Bali
has filed Curative Petition No.12576/2014 in the Hon’ble Apex
Court and hence, intimation is being submitted before the
Court. Since warrant of arrest have already been issued against
accused Balbir @ Bali, hence, the filing of the application on
behalf of accused is of no consequence. The non-bailable
warrant which was issued against Balbir @ Bali received back
unexecuted and the report is perused. Fresh non-bailable
warrant be again issued against Balbir @ Bali and be sent
through Superintendent of Police, Rohtak with the direction that
the same be executed through some responsible police officer
for 14.5.2014.”
14.05.2014
“ Present Shri Surender Pahwa, Public Prosecutor for the
State.
Shri O.P. Chugh, counsel for the accused Balbir @ Bali.
Accused Ajay in custody while all the remaining accused on
bail except accused Balbir @ Bali.Page 6
6
Non-bailable warrant issued against accused Balbir @
Bali received back unexecuted. Even the bailable warrant
issued against surety has not been executed. Report perused. It
appears that State is not making serious efforts for execution of
the warrant of arrest. Hence, fresh non-bailable warrant be
issued against accused Balbir @ Bali and the same be sent to a
Superintendent of Police, Rohtak Range, Rohtak for execution
with the direction to get the same executed through some
responsible officer of the police for 07.07.2014. Fresh bailable
warrant against surety in the sum of Rs.10,000/- be also issued
for the next date of hearing.”
4. These Orders passed by the Trial Court show that although witnesses
for prosecution were present to record their statements on 20.11.2013, no
statements could be recorded in the absence of the accused. Further, on
subsequent dates the accused in custody was produced but the respondent
consistently remained absent. Though he was represented by his Advocate,
the record does not indicate whether the whereabouts of the respondent were
disclosed. In these circumstances, the present petition was filed in which
notice was issued by this Court on 29.08.2014. Since the respondent could
not be served, fresh notice was ordered to be issued on 27.10.2014 to be
served through the District Judge, Rohtak. The compliance report dated
15.01.2015 was forwarded by the District Judge, Rohtak whereafter this
Court passed the following Order on 19.01.2015:
“In the present contempt petition also the respondent has
failed to enter appearance despite service of a notice issued by
this Court. Our attention is drawn by learned counsel for the
petitioner to an Order dated 14.05.2014 passed by the TrialPage 7
7
Court who also appear to have issued non-bailable warrants
against respondent No.1 which warrants also remain to be
unserved despite several efforts. Be that as it may from the
service report dated 14.01.2015 submitted to this Court it
appears that respondent No.1 is admitted to the hospital for the
past 15 months. No medical certificate to that effect is however
available on record. In the circumstance we deem it fit to direct
the Senior Superintendent of Police, Rohtak Range to verify
whether the statement made by Amit Kumar son of the
respondent regarding admission of respondent No.1 in the
hospital is factually correct and to file a report before this Court
regarding his medical condition if he is indeed admitted to the
hospital anywhere in the State of Haryana”.
5. Accordingly Mr. Shashank Anand, Superintendent of Police, Rohtak
submitted an affidavit on 16.02.2015, stating that son of the respondent in
his statement recorded on 8.02.2015 had stated that his father was admitted
in Privat Hospital, Gurgaon and that said son also produced Medical
Certificate dated 7.02.2015 to that effect. After verifying the fact,
instructions were issued to keep close watch and take the respondent in
custody upon his discharge. The Medical Certificate dated 07.02.2015 was
annexed to the affidavit and the Certificate reads as under:-
“PRIVAT HOSPITAL DR. SACHDEV PVT. LTD.
DLF PHASE-II, M.G. ROAD,
GURGAON-122002, INDIA.
Date:07.02.2015
MEDICAL CERTIFICATE
Certified that Mr. Balbir Singh is admitted in Privat Hospital
since 11.04.2014 with diagnosis ofPage 8
8
An o/c of Ischaemic Heart Disease
With Angioplasty done twice in past
With hypertension
With COPD and Acute Examination
With Anxiety with Acid Peptic Disorder
And GIRD.
He has improved significantly, symptomatically and no
intervention was done during the hospitalization. He is likely to be
discharged in next 5-7 days…….”
6. The matter was taken up on 24.04.2015 when the Counsel for the
State produced copies of Medical Certificates dated 11.04.2014 and
26.03.2015. The Certificate dated 26.03.2015 stated that the respondent was
fit to be produced in a Court of Law but it did not indicate whether he was
discharged, and if not discharged, the reason for his continued admission.
This Court, being prima facie of the view that the Hospital was providing
medical asylum to the respondent to avoid arrest, ordered as under:-
“……………….. We are in the circumstances inclined to
direct the personal presence of the Superintendent of
Police, Rohtak, and Dr. Munish Prabhakar, Medical
Director, Privat Hospital, Gurgaon, who shall file an
affidavit and explain why:
(1) Respondent No.1 has not been taken into custody
despite an order of arrest and medical certificate dated
26th March, 2015 issued by the hospital which declares
him asymptomatic.
(2) The hospital has not formally discharged
respondent No.1 if he is otherwise fit and does not
require any further hospitalization.
(3) The Medical Director shall also place on record
details about the medical bills raised against respondentPage 9
9
No.1 from the date of his admission till date and the
amount paid towards the same by the patient or anyone
on his behalf.
7. Pursuant to the Order dated 24.04.2015 an affidavit was filed by Dr.
Munish Prabhakar, Medical Director, Privat Hospital, Gurgaon on
02.07.2015. Relevant portions of paragraphs 5, 6, 7 and 8 of the affidavit
were as under:-
“5. The patient had improved significantly symptomatically
but required Angiography/Thallium scan for further
management but never gave consent for that. He always
refused consent and wanted conservative treatment. During
the stay he was told many times that he can be discharged but
kept on delaying the decision for being discharged. He was not
making payments for his medical bills. He had kept on
assuring the hospital that he will clear all the medical bills but
kept on paying small amounts and promising balance of
payment soon.
6. It is submitted that on 13.02.2015, the police officials at
PS Kalanaur, Dist. Rohtak, Haryana had informed the Hospital
that the hospital may inform the SHO, Kalanaur Police Station,
Rohtak, whenever the Hospital discharges this patient………
7. Subsequently, the Police official from Kalanaur Police
Station, Rohtak vide his communication dated 15.03.2015 inter
alia, requesting the Hospital to opine whether this patient can be
produced in the Court of Ld. ADJ, Rohtak.
8. In response to his communication dated 15.03.2015 of
the Rohtak Police, the Hospital had clearly informed them on
16.3.2015 that the patient Mr. Balbir Singh is fit to be produced
in the Court. The further details of his treatment in the Hospital
with a Certificate were also issued on 26.03.2015. …….. The
police officials from Rohtak by his communication dated 1.5.15Page 10
10
had requested the Hospital to issue a discharge slip. While
respectfully reiterating that from 15.3.15 itself the police
officials of Rohtak Police had been clearly told by the Hospital
that this patient is fit to be taken to the Court where he is
required, the Hospital once again acceded to the request of the
Rohtak Police and also issued a Discharge Slip on the same day,
i.e., 01.05.2015. ………..”
The affidavit went on to state that the Hospital was not aware of any
direction to the respondent to surrender to custody which he had not
complied with and that the respondent had cleverly continued to stay in the
Hospital.
8. Shashank Anand, Superintendent of Police, Rohtak filed his affidavit
dated 02.07.2015 in which developments subsequent to the filing of the
earlier affidavit were detailed in paragraphs 6 to 13:-
“6. It is further submitted that on 21.02.2015, the S.H.O.
Police Station Kalanaur, District Rohtak, Haryana along with
other police officials of the Police Station went to the above
said hospital to arrest accused Balbir @ Bali but doctors of the
above said hospital refused to discharge the accused Balbir @
Bali. In this regard DDRs No.9 and No.38 dated 21.02.2015
were recorded by the SHO Police Station Kalanaur, Rohtak,
Haryana.
7. That it is pertinent to mention here that on 21.02.2015,
27.02.2015 and 25.03.2015 Sh. Pawan Kumar, HPS, Deputy
Superintendent of Police, Rohtak had also telephonically
contacted Mr. R. N. Sharma, Administrative Officer and Dr.
Prabhakar, Medical Director of the said hospital and requested
them to discharge the accused Balbir @ Bali but no positive
response was provided by the hospital authorities. Page 11
11
8. That accused Balbir @ Bali through his counsel served a
legal notice dated 20.03.2015 upon SHO Police Station
Kalanaur, District Rohtak, Haryana and Deputy Superintendent
of Police, Rohtak, Haryana (Supervisory Officer of Police
Station Kalanaur) calling upon them not to harass him, who is a
patient and further, if any harassment is caused they shall be
personally responsible for the same. In the said notice it was
mentioned that accused Balbir @ Bali, who was under regular
treatment and was unable to appear in the court, was being
unnecessarily harassed by the police.
9. That on 25.03.2015, the S.H.O, of Police Station
Kalanaur, District Rohtak, Haryana along with other police
officials of the Police Station had gone to Privat Hospital Dr.
Sachdev Pvt. Ltd., Phase-II, M.G. Road, Gurgaon to arrest
accused Balbir @ Bali who was declared Proclaimed Offender
in case FIR No.141 dated 06.05.2011 under Sections
148/149/323/325/307/302/109/114 IPC & 25 of Arms Act,
Police Station Kalanaur, District Rohtak, Haryana but the
doctors of the said hospital again refused to discharge accused
Balbir @ Bali under the pretext that his treatment was going on
and intimation shall be given within two days after completing
his treatment. The S.H.O., Police Station Kalanaur, District
Rohtak before going and after returning recorded the DDR
No.12 dated 25.03.2015 at 8.20 AM and DDR No.42 at 10.20
PM mentioning all these details therein at Police Station
Kalanaur, District Rohtak, Haryana.
10. That notwithstanding the issuance of medical certificate
dated 26.3.2015 by Privat Hospital Dr. Sachdev Pvt. Ltd.
Gurgaon, Haryana, the concerned hospital authorities
intentionally did not discharge the accused Balbir @ Bali from
the hospital for reasons known to them. It is further mentioned
that the doctors of the said hospital orally advised the police not
to arrest the accused as it may put his life in jeopardy/or danger.
11. That owing to the prevarication on part of authorities of
Privat Hospital, a request was made to the Chief Medical
Officer (CMO), Gurgaon, Haryana by the S.H.O. Police Station
Kalanaur, District Rohtak, Haryana through ASI Mahabir SinghPage 12
12
No.222/RTK of the said Police Station for constituting a
Medical Board to give opinion whether the accused Balbir @
Bali who is getting treatment in the said hospital can be arrested
from the hospital in the said situation by getting his physical
condition and if not, then to provide the medical team of
Doctors to accompany the police for bringing him to Rohtak so
that he may be produced before the learned Court in the
supervision of Doctors.
12. That the authorities of Privat Hospital Dr. Sachdev Pvt.
Ltd. Gurgaon failed to formally discharge the accused Balbir @
Bali from the hospital despite several visits of the local police.
Due to non-cooperation of Privat Hospital authorities, accused
Balbir @ Bali could not be taken into custody despite an Order
of arrest. It is further submitted that the Chief Medical Officer,
Gurgaon also refused to provide an Ambulance and team of
Doctors in whose supervision accused Balbir @ Bali i.e.
respondent No.1 could be brought to Rohtak and produced
before the learned Court of concerned Magistrate, Rohtak. The
local police tried its level best to arrest the accused by making
sincere efforts but due to the above said circumstances, it could
not succeed in arresting accused Balbir @ Bali i.e. respondent
No.1.
13. That on 01.05.2015, accused Balbir @ Bali was formally
discharged by the hospital authorities and thereafter, he was
immediately arrested and produced before the learned Court of
concerned Magistrate, Rohtak, Haryana, on very same day by a
team of police officials headed by Sh. Pawan Kumar, HPS,
Deputy Superintendent of Police, Rohtak. The learned Court
issued direction to the police that “before taking him to central
jail, accused shall be medicolegally examined and if the
Medical officer examing the accused feels any necessity of
retaining him in the hospital, then it is for him to decide. In
compliance of Order dated 01.05.2015 passed by the learned
Court of ACJM, Rohtak, the accused was brought before
Medical Officer of PGIMS, Rohtak, who after examining the
accused admitted him in ICCU vide CR No.342761 dated
01.05.2015 for evaluation, investigation, treatment and
monitoring. The accused Balbir @ Bali remained admitted inPage 13
13
PGIMS, Rohtak from 01.05.2015 to 12.05.2015. That on
12.05.2015, accused Balbir @ Bali was discharged from
PGIMS, Rohtak and is since in District Jail, Rohtak, Haryana.”
9. The matter was thereafter taken up on 08.07.2015 when this Court,
with a view to find out whether the Hospital had become party to attempts
of the respondent to prevent the law from taking its course, passed following
Order:-
“………From the versions presented to us about the
circumstances in which respondent-Balbir continued to evade
arrest by the police on account of his prolonged admission to
the hospital, we are prima facie of the view that an appropriate
enquiry is called for in order to bring the truth to light
especially with a view to finding out whether the hospital had
become a privy to the attempt of the respondent to somehow
prevent the law from taking its course. The fact that the
respondent remained admitted to the hospital concerned for a
long period without so much as paying the amount claimed by
the hospital shows that the admission of the respondent to the
hospital may not have been an innocent act. We do not for the
present wish to say anything further at this stage lest it causes
prejudice to any party. All that we need mention is that, in our
opinion, the appropriate course would be to direct a proper
inquiry into the circumstances in which the respondent-Balbir
continued to avoid arrest and escape from the long arms of law
with or without the help of the hospital concerned.
We accordingly direct the Director of Central Bureau of
Investigation (CBI) to suitably nominate a senior officer to
conduct an inquiry into the circumstances in which the
respondent was admitted to the Privat Hospital Dr. Sachdev Pvt.
Ltd. and also to report whether there was any criminality
attached to the action of the management of the hospital or on
the part of the doctors concerned in granting a prolonged
admission to the respondent with the object of protecting the
respondent from being arrested and committed to jail. We hope
and trust the officer concerned completes the inquiryPage 14
14
expeditiously and submits a report to this Court within a period
of two months from today…….. ”
10. An enquiry was accordingly conducted by Shri S.S. Kishore,
Superintendent of Police, CBI, New Delhi. In his report dated 18.09.2015 he
summarized the matter as under:-
“(4). Summary of the Enquiry Report is as follows:
(a) Accused Balbir Singh is a heart patient and had
undergone a treatment at Medanta Hospital, Gurgaon as an
indoor patient from 4.9.2013 to 10.9.2013 and as an outdoor
patient on 17.9.2013 and 18.10.2013 i.e. prior to cancellation of
his bail by this Hon’ble Court.
(b) After this Hon’ble Court cancelled the bail of accused
Balbir Singh on 24.10.2013, the accused got himself admitted
in the said Hospital on 15.11.2013.
(c) Accused Balbir singh remained admitted in the said
Hospital for a total 527 days on three occasions viz. from
15.11.2013 to 25.12.2013 for 41 days, from 31.12.2013 to
9.04.2014 for 100 days and from 11.04.2014 to 1.05.2015 for
386 days, respectively.
(d) Accused Balbir Singh did not give his consent for
Angiography as suggested by the doctors during his admission
in the said Hospital, and requested for Conservative Treatment
through medicines which was agreed to by the doctors.
(e) Accused Balbir Singh was not required to remain
admitted in the said Hospital for such a long period for the
Conservative Treatment which he was given in said Hospital as
confirmed by Dr. Munish Prabhakar, the Consultant Physician
of the said Hospital.
(f) There was no change in the condition of accused Balbir
Singh from 12.06.2014 to 1.12.2014 necessitating him to be
kept as indoor patient as is evident from the table given at ParaPage 15
15
3 (ii) (c ) at Page No.5 of this Enquiry Report, still he was kept
in the said Hospital for no reason.
(g) No laboratory tests were conducted during the period
from 25.02.2014 to 12.04.2014 and from 12.04.2014 to
01.5.2015 which indicate that neither illness of accused Balbir
Singh was serious nor treatment given to him was intensive.
(h) There was no cogent ground for which accused Balbir
Singh was allowed to move out of the said Hospital for 47
times during the admission in the said Hospital. Rather it
establishes that he was fit to move freely and was not required
to be kept as indoor patient.
(i) There was no justification for the continued admission of
accused Balbir Singh in the said Hospital from 11.04.2014 to
1.05.2015 i.e. for 386 days.
(j) Accused Balbir Singh remained admitted in the said
Hospital without any payment for the first 274 days during his
third admission as he was admitted in the said Hospital on
11.04.2014 and he made the first payment of Rs. 50,000/- only
on 10.01.2015.
(k) The administration of said Hospital kept the accused
admitted for financial gains as they were getting approximately
Rs. 9,500/- per day.
(l) Accused Balbir Singh made full payment of his first and
second admission bills in said Hospital, but paid only a part of
his dues for his third admission bills.
(m) Filing of complaint case against accused Balbir Singh in
the Court of Judicial Magistrate, 1st Class, Gurgaon u/s 138 of
the Negotiable Instruments Act on 20.07.2015 for dishonour of
cheque of Rs. 5,00,000/- and filing of a suit against accused
Balbir Singh on 13.08.2015 in the Court of Civil Judge,
Gurgaon for recovery of remaining bill amounting to Rs.
29,58,459/- (Twenty Nine Lakh Fifty Eight Thousand Four
Hundred and Fifty Nine) appear to be afterthoughts of thePage 16
16
administration of the said Hospital as these have been filed after
the Order dated 8.07.2015 of this Hon’ble Court.
(n) The said Hospital on more than one occasion informed
Rohtak Police in writing that accused Balbir Singh was fit to be
taken to Court but did not discharge him.
(o) It appears that Rohtak Police came to know about
accused Balbir Singh being admitted in the said Hospital on
8.02.2015, but arrested the accused only on 1.05.2015.
(p) The stand of Rohtak Police that accused could not be
arrested as he was not discharged by the said Hospital does not
hold substance.
(q) Certain inconsistencies have been found in the affidavit
filed by Rohtak Police. The details are mentioned in Para 3 (x)
at Page Nos. 12 and 13 of this Enquiry Report.”
11. The Enquiry Report also dealt with the efforts made by local police to
locate and arrest the respondent and reported as under:-
“(viii). NBWs and Efforts made by local police to locate and
arrest accused Balbir Singh
This Hon’ble Court had rejected the bail of accused
Balbir Singh on 24.10.2013 and directed him to surrender
forthwith. Accused Balbir Singh did not comply with the Order
of this Hon’ble Court. Thereafter, the Trial Court of Additional
Sessions Judge, Rohtak, Haryana issued various non-bailable
warrants of arrest against accused Balbir Singh on 08.11.2013,
21.11.2013, 02.01.2014, 12.2.2014, 19.03.2014, 18.04.2014 and
15.05.2014 which were returned unexecuted by PS Kalanaur.
None of the execution report mentioned about any enquiry from
family members of the accused or his whereabouts. It was also
revealed that some of the entries made in the General Diaries of
PS Kalanaur in connection with the efforts for arresting the
accused Balbir Singh do not correspond with the respective log
books of vehicles.”Page 17
17
12. After considering the Enquiry Report, this Court was prima facie of
the opinion, that notice was required to be issued to Dr. K.S. Sachdev, why
he should not be punished for committing contempt of court. The Order
dated 19.11.2015 passed by this Court dealt with the matter as under:-
“………………We have heard learned counsel for the
parties and are of the view that a notice of show cause ought to
issue even to Dr. K.S. Sachdev who happens to be the
Managing Director of Privat Hospital Dr. Sachdev Pvt. Ltd.,
Gurgaon. A notice shall accordingly issue asking Dr. K.S.
Sachdev to show cause why he should not be punished for
committing contempt of this Court in as much as from the
material placed on record, it appears that Balbir Singh accused
in Sessions Case No. 62 of 2011 was harboured by the Hospital
run by the Company of which he is the Managing Director for a
considerable period and prima facie without any justification
and only with a view to preventing his arrest and committal to
jail pursuant to the Orders passed by this Court in Criminal
Appeal No. 1834 of 2013 the Orders passed by this Court in
Criminal Appeal No. 1834 of 2013 dated 24.10.2013. Notice
shall be directed to the Station House Officer to the
Jurisdictional Police Station for service upon Dr. K.S. Sachdev.
………………. Mr. Shashank Anand, S.P. shall also file
his reply affidavit to the contempt petition as also the
preliminary report within three weeks from today with an
advance copy to learned counsel for the petitioner who will
have one week thereafter to respond to the same.”
13. Accordingly, Shashank Anand, Superintendent of Police, Rohtak filed
his affidavit dated 07.12.2015 submitting that he took charge as
Superintendent of Police, Rohtak on 24.11.2014. He stated that the fact thatPage 18
18
the respondent had not surrendered despite cancellation of his bail by this
Court was brought to his knowledge for the first time on 12.01.2015,
whereafter the matter was entrusted to Deputy Superintendent of Police,
Meham, Rohtak. He further stated that he became aware of the admission of
the respondent in Privat Hospital, Gurgaon on 16.02.2015. He thereafter
undertook steps to ensure that the respondent did not escape and deployed a
guard at the hospital since 16.02.2015 right till 01.05.2015 when the
respondent was finally discharged from the hospital. The affidavit further
stated that soon after the enquiry report of CBI a fact finding probe to fix the
responsibility/negligence/ connivance on part of police officials who dealt
with process of service of non-bailable warrant against the respondent was
undertaken. Pursuant to the enquiry report dated 07.12.2015, vide Memo
Nos.2145, 2146, 2147 and 2148 all dated 07.12.2015, necessary action was
recommended against certain police officials.
14. A reply affidavit was also filed by Dr. K.S. Sachdev on 07.01.2016. It
was submitted that the hospital came to know that the respondent was
required in a criminal case only on 13.02.2015. However, the affidavit did
not disclose why even after 13.02.2015 the respondent-contemnor was not
discharged. The affidavit stated that after it received a communication from
Rohtak Police dated 15.03.2015 to get the respondent examined by aPage 19
19
Medical Board, that the hospital on 16.03.2015 furnished a fitness report to
Rohtak Police declaring the respondent to be fit to be produced in court of
law. The affidavit further stated that for reasons best known to them the
police did not take the respondent from the hospital despite such fitness
report and the respondent was finally discharged after letter dated
01.05.2015 seeking his discharge was received from the police. The
affidavit stated that no police official came to the hospital seeking custody of
the respondent and that the hospital had not refused to comply with the
request of the police at any stage. It further stated:
“The prolonged admission happened as the accused
trapped the Hospital by not paying. There was no
criminality on part of hospital as it was totally unaware
of his criminal status before 13.02.2015. The hospital
did not keep him as he was paying Rs.9,500/- to the
hospital, it was non- payment of this amount that gave
him prolonged stay and he very cleverly used this
position that for the fear of losing money, the hospital
will not discharge him and he trapped the hospital very
cleverly being a wily politician.”
15. We heard Mr. Rishi Malhotra, learned Advocate for the petitioner, Mr.
Tushar Mehta, learned Additional Solicitor General appearing for Shashank
Anand, Superintendent of Police, Mr. Dushyant A. Dave, learned Senior
Advocate for Dr. K.S. Sachdev and Mr. Siddharth Luthra, learned Senior
Advocate for Dr. Munish Prabhakar. Page 20
20
16. From the record and the Enquiry Report as stated above, it is clear that
soon after the Order dated 24.10.2013 passed by this Court, the respondent
remained admitted in the Hospital for a total of 527 days. Nothing has been
placed on record, nor any medical condition or reasons have been adverted
to why such admission was required in the first place. As found in the
Enquiry, no laboratory test was conducted during the period of admission
from 25.02.2014 to 12.04.2014 and from 12.04.2014 to 01.05.2015. This
shows that the illness as projected was not serious at all and no intensive
treatment as indoor patient was required or called for. This prolonged
admission without any justifiable medical reason was essentially to defeat
the direction issued by this Court in its Order dated 24.10.2013 and repeated
non-bailable warrants issued by the Trial Court.
17. The Order passed by the Trial Court on 20.11.2013 shows that an
affidavit of son of the respondent was filed along with a copy of review
petition. The application seeking exemption was rejected by the Trial Court
and SHO concerned was issued notice why the warrant of arrest was not
executed. Subsequent Orders dated 05.02.2014, 15.03.2014, 16.04.2014 and
15.04.2014 indicate that fresh warrants of arrest were issued through
Superintendent of Police. Neither the respondent surrendered to custody as
directed by this Court nor the concerned police took any steps to arrest himPage 21
21
or try to find his whereabouts. No report was made to the Trial Court. What
is evident is total inaction on the part of the police which helped the
respondent in evading the arrest and defeating the Orders passed by this
Court as well as by the Trial Court. This callous attitude and conduct of the
police calls for strict administrative actions and corrective penal measures.
18. The conduct exhibited by the respondent in getting himself admitted
in the hospital when there was no medical reason to justify such admission
and in continuing to remain admitted till action was taken by this Court in
contempt jurisdiction, exhibits scant respect and regard for the orders and
processes issued by the Court. Despite issuance of notice, the respondent has
neither filed any response nor tendered any apology. Having gone through
the record and considered the Enquiry Report, we have no doubt that the
respondent is guilty of having committed contempt of the direction issued by
this Court in its Order dated 24.10.2013 and also in obstructing the
administration of justice.
19. We now turn to the role of the hospital and medical professionals. The
explanation offered by Dr. Munish Prabhakar and Dr. K.S. Sachdev was that
they were not aware of any direction by this Court to the respondent to
surrender to custody or that the respondent was required in connection withPage 22
22
any crime. At the outset, it must be stated that the respondent stood admitted
in the hospital for 527 days. Not a single laboratory test was conducted
during the period from 15.02.2014 to 01.05.2015. The papers produced on
record do not in any way suggest any medical emergency which could
justify continued admission of the respondent as an indoor patient. Further,
during the third admission of the respondent from 12.04.2014 the first
payment to the hospital was made only on 10.01.2015 i.e. nearly after 247
days. It is inconceivable that in normal circumstances a man, who has no
ailment or a medical condition requiring emergency treatment would be kept
as indoor patient without any laboratory test and without recovering a single
paisa for more than 247 days. Moreover, the record indicates that on as
many as 47 occasions during his admission the respondent was allowed to
move out of the hospital without even an endorsement by any medical
professional justifying such movement. The Enquiry Report further shows
that there used to be regular stream of visitors during the stay of respondent
in the hospital. These features clearly show that the respondent was in
perfect condition of health and never really required admission in the
hospital as an indoor patient. The role of the hospital was certainly not as
innocent as is sought to be projected and the features detailed above clearlyPage 23
23
show that the hospital was party to the attempts on part of the respondent to
defeat the Order passed by this Court.
20. When the compliance report forwarded by the District Judge, Rohtak
on 15.01.2015 indicated admission of the respondent in a hospital, this Court
by Order dated 19.01.2015 called for a report from the Superintendent of
Police, Rohtak. The enquiry initiated thereafter resulted in recording of the
statement of son of the respondent on 08.02.2015 who also produced
medical certificate dated 07.02.2015. This certificate issued by Privat
Hospital shows that the respondent was likely to be discharged in next 5 to 7
days. Significantly, said certificate was not even referred to in any of the
subsequent affidavits filed by Dr. Munish Prabhakar or Dr. K.S. Sachdev. If
the respondent was likely to be discharged in few days as certified on
07.02.2015 what went wrong in not discharging him or was there any
medical emergency justifying his continued admission? Nothing is spelt out
in any of the affidavits. As a matter of fact, the subsequent certificate dated
26.03.2015 did not even speak of likelihood of discharge and used the
expression “………he is fit to be produced in the Court of law as per present
health condition.” The assertions made by Shashank Anand in his affidavit
dated 02.07.2015 are that notwithstanding issuance of such certificate dated
26.03.2015, the hospital refused to discharge the respondent and orallyPage 24
24
advised the police not to arrest the respondent lest it may put his life in
jeopardy or danger. The Enquiry Report rightly observed “……the said
hospital on more than one occasion informed Rohtak Police in writing that
accused Balbir Singh was fit to be taken to court but did not discharge him.”
It was only after this Court passed the Order dated 24.04.2015 directing
personal presence of Dr. Munish Prabhakar with a direction to file an
affidavit and explain the situation, that the hospital discharged the
respondent on 01.05.2015 which then resulted in arrest and production of the
respondent.
21. The explanation offered by Dr. Munish Prabhakar and Dr. Sachdev
that the respondent trapped the hospital and by non-payment of the bills kept
prolonging his stay in the hospital does not inspire confidence at all. If the
hospital was really a victim of the machinations of the respondent, at the
first opportunity i.e. when requisition was made by the police on 13.02.2015,
the hospital would have responded immediately. The requisition dated
13.02.2015 had informed the hospital that respondent was a proclaimed
offender and that his custody was required. This requisition was close on the
heels of the medical certificate dated 07.02.2015 and if that certificate was a
correct one, the time was ripe for discharge of the respondent. However, as
stated by Shashank Anand in his affidavit dated 02.07.2015, the hospitalPage 25
25
refused to discharge the respondent. The theory that the hospital was
trapped by the designs of the respondent is a mere eye-wash and we reject
the same. Thus, the inescapable conclusion is that the hospital extended
protection and asylum to the respondent to defeat the Order passed by this
Court as well as those passed by the Trial Court and thereby obstructed
administration of justice.
22. Dr. Munish Prabhakar has been Medical Director of the hospital and
as submitted by learned Senior Counsel on his behalf, he receives salary and
some percentage of consultation charges recovered from the patients. Dr.
K.S. Sachdev, on the other hand, has been the Managing Director of the
Company which owns and runs said hospital. We have found that the
continued admission for such a long period as indoor patient was not
justifiable for any reason or medical condition of the respondent. Both these
medical professionals are responsible for such prolonged admission which
was actuated by only one reason which was to extend medical asylum to the
respondent as a cover to defeat the orders passed by this Court and the Trial
Court. In this process, these medical professionals not only helped the
respondent in violating the Order of this court but they also obstructed
administration of justice.
23. The aforementioned conclusions then raise issues regarding the extent
of liability of the contemnors. Sections 2 (b) and 2 (c) of the Contempt of
Courts Act, 1971 which define ‘civil contempt’ and ‘criminal contempt’ are
as under:-
“(b) “civil contempt” means willful disobedience to any
judgment, decree, direction, order, writ or other process
of a court or willful breach of an undertaking given to a
court;
(c) “criminal contempt” means the publication (whether
by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing
of any other act whatsoever which-
(i) scandalises or tends to scandalise, or lowers or
tends to lower the authority of, any court; or
(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;”
Willful disobedience to a direction issued by this Court on
24.10.2013 on part of the respondent is quite evident. He was party to the
proceedings and bound by the order and as such his liability on that court
stands established. Further, by his defiance of the direction so issued, he also
obstructed administration of justice. He is thus liable for committing civil
contempt as well as criminal contempt. But the Medical Professionals
namely Dr. Munish Prabhakar and Dr. K.S. Sachdev were not parties to the
matter where the direction in question was passed.
24. As regards the liability of the aforesaid Medical Professionals,
questions that arise are: 1) whether a person, who is not bound by a direction
issued by the Court could be held guilty for committing contempt of court
for his conduct in either directly aiding and abetting violation on part of the
person who is bound by such direction; and 2) what is the extent of liability
of such person.
A.] In Seaward v. Paterson1
the landlord of the concerned
premises had obtained an injunction against Paterson i.e. his tenant
restraining him from doing or allowing to be done anything on the premises
which would be a nuisance to the landlord and from using the premises
otherwise than for the purposes of a private club. Alleging that the tenant
had committed contempt of the court by allowing the premises to be used for
boxing matches, the landlord applied for committal of two other persons,
namely, Sheppard and Murray on the ground that they had aided and assisted
the tenant in his disobedience to the injunction. The following passages
from the Judgment of Lindley LJ are quite instructive:
“Now, Let us consider what jurisdiction the court has to make
an order against Murray. There is no injunction against him--
He is no more bound by the injunction granted against Paterson
than any other member of the public. He is bound, like other
members of the public, not to interfere with, and not to obstruct,
the course of justice; and the case, if any, made against him
1
(1895-99) All ER 1127
must be this--not that he has technically infringed the
injunction, which was not granted against him in any sense of
the word, but that he has been aiding and abetting others in
setting the Court at defiance, and deliberately treating the order
of the Court as unworthy of notice. If he has so conducted
himself, it is perfectly idle to say that there is no jurisdiction to
commit him for contempt as distinguished from a breach of the
injunction, which has a technical meaning.”
“A motion to commit a man for breach of an injunction, which
is technically wrong unless he is bound by the injunction, is one
thing; and a motion to commit a man for contempt of court, not
because he is bound by the injunction by being party to the
cause, but because he is conducting himself so as to obstruct the
course of justice, is another and a totally different thing. The
difference is very marked. In the one case the party who is
bound by the injunction is proceeded against for the purpose of
enforcing the Order of the Court for the benefit of the person
who got it. In the other case, the Court will not allow its process
to be set at naught and treated with contempt.”
B] In Z Ltd. v. A
2
the plaintiff had obtained injunction against
certain defendants and the assets of one such defendant against whom the
injunction was granted, were held by a bank. The bank was served with a
copy of the injunction but the concerned defendant had not yet been served.
While considering the question whether any disposal of assets belonging to
the defendant by the bank would make it liable for committing contempt of
Court, it was stated as under:
“I think that the following propositions may be stated as to the
consequences which ensue when there are acts or omissions
which are contrary to the terms of injunction. (1) The person
2
(1982) 1 All ER 556
against whom the Order is made will be liable for contempt of
Court if he acts in breach of the Order after having notice of it.
(2) A third party will also be liable if he knowingly assists in the
breach, that is to say if knowing the terms of the injunction he
willfully assists the person to whom it was directed to disobey
it. This will be so whether or not the person enjoined has had
notice of the injunction… I will give my reasons for the second
proposition and take first the question of prior notice to the
defendant. It was argued that the liability of the third person
arose because he was treated as aiding and abetting the
defendant (i.e. was an accessory) and as the defendant could
himself not be in breach unless he had notice it followed that
there was no offence to which the third party could be an
accessory. In my opinion this argument misunderstands the true
nature of the liability of the third party. He is liable for
contempt of court committed by himself. It is true that his
conduct may very often be seen as possessing a dual character
of contempt of court by himself and aiding and abetting the
contempt by another, but the conduct will always amount to
contempt by himself. It will be conduct which knowingly
interferes with the administration of justice by causing the
Order of the court to be thwarted.”
C] The extent of liability of third party in such actions was
considered by the House of Lords in Attorney General v. Times
Newspapers Ltd. and another3
. In that case the Attorney General had
brought action against two newspapers seeking permanent injunction
restraining them from publishing material from a book written by a person
who was formerly a member of the security service and by terms of his
employment was bound by confidentiality which would stand breached if his
memoirs were published. While the interlocutory injunctions restraining
3
(1991) 2 All ER 398
publication of the material pending trial of such action was granted against
those two newspapers, three other newspapers published extensive extracts
and summaries of the book following which proceedings for criminal
contempt against them were brought by the Attorney General. At the trial of
those proceedings those three other newspapers were held to be guilty of
criminal contempt. Lord Brandon of Oakbrook concluded as under:
“………………The claims of the Attorney General in the
confidentiality actions were for permanent injunctions
restraining the defendants from publishing what may
conveniently be called Spycatcher material. The purpose of the
Millet injunctions was to prevent the publication of any such
material pending the trial of the confidentiality actions. The
consequence of the publication of Spycatcher material by the
publishers and editor of the Sunday Times before the trial of the
confidentiality actions was to nullify, in part at least, the
purpose of such trial because it put into the public domain part
of the material which it was claimed by the Attorney General in
the confidentiality actions ought to remain confidential. It
follows that the conduct of the publishers and editor of the
Sunday Times constituted the actus reus of impeding or
interfering with the administation of justice by the court in the
confidentiality actions.”
D] In a separate concurring opinion Lord Jauncey of Tullichettle
stated as under:
“I turn to consider whether there is any reason why established
principle should not be applied to the situation in this case. I do
not accept the propostion that to apply established principles in
the foregoing circumstances would effectively be to convert
every injuction from an order in personam to an order contra
mundum. That proposition ignores the distinction between the
breach of an order by the person named therein and interference
with the course of justice resulting from a frustration of the
order by the third party.”
25. In our view, the Medical Professionals namely Dr. Munish Prabhakar
and Dr. K.S. Sachdev extended medical asylum to the respondent without
there being any reason or medical condition justifying prolonged admission
of the respondent as an indoor patient as a cover to defeat the Orders passed
by this Court and the Trial Court, as stated above and thereby aided and
assisted the respondent in violating the Order of this Court. By such conduct
these Medical Professionals have obstructed administration of justice.
26. We thus hold that the respondent guilty of having violated the Order
dated 24.10.2013 passed by this Court and for having obstructed
administration of justice. We also hold Dr. Munish Prabhakar and Dr. K.S.
Sachdev guilty for having helped the respondent in his attempts and thereby
obstructing administration of justice. Having held so, we could straightaway
have imposed appropriate punishment under the Act. However, we deem it
appropriate to grant one more opportunity to these contemnors. The
respondent has not filed any affidavit nor tendered an apology. At the same
time for Dr. K.S. Sachdev, Managing Director of the company that owns the
hospital is said to be 76 years of age. Considering the fact that these are
medical professionals with sufficient standing, in our view ends of justice
would be met if one more opportunity is granted to them to present their
view on the issue of punishment. In the circumstances, we direct presence of
these three contemnors on January 2, 2017. The respondent is in custody and
therefore appropriate production warrant shall be issued under the signature
of Registrar of this Court ensuring presence of the respondent before this
Court. The concerned police is directed to facilitate such production of the
respondent. The contemnors can also present their views and make
appropriate submission in writing on or before December 23, 2016.
27. Coming to the role of the police officials in the present matter, we
have already observed that the conduct exhibited by the concerned police
officials in not ensuring compliance of the Orders passed by the Trial Court
calls for strict administrative action. The actions in that behalf have already
been initiated and for the present we rest content by observing that the
disciplinary proceedings shall be taken to logical end and the guilty shall be
brought to book. We request the Director General of Police of Haryana and
the Home Secretary to look into the matter and ensure that the departmental
proceedings are taken to logical end at the earliest. The status report/action
taken report in that behalf shall be filed in this court within three months
from the date of this judgment.
28. As regards the role of Mr. Shanshank Anand, Superintendent of Police,
Rohtak, we find that he took charge as Superintendent of Police, Rohtak on
24.11.2014 i.e. well after the Order dated 24.10.2013 of this Court and after
the Orders directing issuance of non-bailable warrants against the respondent
were passed by the Trial Court. However, even according to his own
affidavit, if he became aware that respondent had not surrendered despite
cancellation of his bail and that he was admitted in Privat Hospital, Gurgaon
only in February 2015, the steps that he took after 16.2.2015 cannot strictly
be called actions taken with reasonable promptitude. Even according to
Paras 6, 7 and 8 of affidavit dated 2.07.2015 nothing was done during the
period 27.02.2015 to 23.03.2015. The action apparently was initiated only
after the Order dated 24.4.2015 was passed by this Court. Though we
express dissatisfaction, we do not deem it appropriate to carry the matter
further as against him. The notice issued to him is discharged and the
petition as against him stands closed.
29. Ordered accordingly.
…………………CJI.
(T.S. Thakur)
…………………….J.
(R. Banumathi)
…………………….J.
(Uday Umesh Lalit)
New Delhi,
December 15, 2016
IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
CONTEMPT PETITION (CIVIL) NO.374 OF 2014
IN
CRIMINAL APPEAL NO.1834 OF 2013
Sita Ram
Versus
Balbir @ Bali
Dated:December 15, 2016.
Citation:(2017) 2 SCC 456
1. This petition under Section 12 of the Contempt of Courts Act, 1971
(hereinafter referred to as the ‘Act’) highlights willful and deliberate
violation of the Judgment and Order dated 24.10.2013 passed by this Court
in Criminal Appeal No.1834 of 2013 and seeks initiation of appropriate
proceedings under the Act.
2. The petitioner, original informant in FIR No.141 dated 06.05.2011
with Police Station Kalanaur, District Rohtak, Haryana for offences
punishable under Sections 148, 302 and 307 of the Indian Penal Code read
with Section 149 IPC and Section 25 of the Arms Act, was the appellant in
Criminal Appeal No.1834 of 2013 assailing the Order dated 11.02.2013
passed by the High Court of Punjab and Haryana granting bail to the
respondent. While setting aside the Order granting bail, this Court in its
Judgment and dated 24.10.2013 observed as under:
“4. …………… In the FIR, the Appellant/Informant has
stated that Respondent No.1 fired upon his brother-in-law
Vishnu from his revolver and thereafter Sombir also fired upon
Vishnu. The other persons mentioned also opened fire
indiscriminately leading to firearm injuries on several persons
who were at the shop of the Appellant/Informant at that fateful
time. ……………………………….
5. ………………………. Respondent No.1 is indubitably a
very influential person in the area, at the time of the incident he
was an ex-MLA. Section 109 and Section 149, as envisaged
under the IPC have been cited. By Orders dated 23.1.2013, the
Addl. Sessions Judge has, on a perusal of the police report and
material documents, found existence of a prima facie case under
Sections 148, 302 read with Section 149, 307 read with Sections
149, 323 read with Section 149 IPC against all the accused and
in addition to this a prima facie case under Section 302 IPC, 109
IPC and 25 of Arms Act against Balbir @ Bali, a prima facie
case under Section 307 IPC against Naresh and Rishi, a prima
facie case under Section 25 of Arms Act against Dinesh @ Kala
and Sunil and a prima facie case under Section 27 of Arms Act.
6. Keeping all these factors in perspective, especially the
wide-scale injuries suffered by several persons, there is a strong
prima facie case of the involvement of the Respondent No.1 in
the alleged crimes. Moreover, the antecedents of Respondent
No.1 are such that a reasonably strong apprehension of his
tampering with witnesses or leveling of threats is imminent and
omnipresent. The severity of the attack should not be
overlooked. For these manifold reasons, we set aside the
impugned Order dated 11.2.2013, allow the Appeal and cancel
the bail granted to Respondent No.1 who shall surrender to
custody forthwith.”
3. Thus, while setting aside the Order granting bail, this Court took into
account the role played by the respondent in firing upon the deceased and
the fact that he was an influential person in the area with criminal
antecedents. In keeping with direction to surrender to custody forthwith, it
was expected of the respondent to do the needful. However, the record
indicates otherwise and shows attempts to evade execution of consequential
non-bailable warrants issued from time to time leading to delays in trial.
The Orders passed by the Trial Court on 20.11.2013, 05.02.2014,
15.03.2014, 16.04.2014 and 14.05.2014 bear testimony in that behalf, which
Orders were as under:
20.11.2013
“Present: Shri A.S. Kadian, Public Prosecutor for the
State assisted by Shri R.K. Sehgal, counsel for the complainant.
Accused Sunil and Ajay in custody, whereas all the
remaining accused except accused Balwan alias Balli on bail,
with Shri O.P. Chugh, Shri Surinder Verma, Advocates.
Accused Balwan absent.
Three PWs namely Sita Ram, Ram Chander and Ram
Mehar are present, but their statements could not be recorded as
warrant of arrest issued against accused Balwan not received
back either executed or unexecuted and an application seeking
exemption of accused Balwan alias Balli from personal
appearance for today along with affidavit of his son and
photocopy of the Special Criminal Review Petition, has been
moved. Heard. Perused. Since there is no stay granted by
Hon’ble Supreme Court of India in this case and further more
bail of accused-applicant Balwan had already been cancelled by
Hon’ble Supreme Court of India, thus there is no merit in this
application and the same is hereby dismissed and fresh warrant
of arrest of accused Balwan be issued, 7.12.2013. PWs present
today stand discharged and would be summoned after procuring
the presence of accused Balwan.
Since there is non-compliance of the issuance of warrant
of arrest against accused Balwan in view of the Order dated
24.10.2013 as passed by Hon’ble Supreme Court of India,
therefore, notice be given to SHO, Police Station Kalanaur as to
why warrant of arrest of accused Balwan alias Balli have not
been sent back to this court either executed or unexecuted, for
7.12.2013.”
05.02.2014
“Present: Shri A.S. Kadian, Public Prosecutor for the State.
Accused Ajay in custody, whereas all the remaining accused on
bail except accused Balwan, with counsel Shri O.P. Chugh,
Advocate…………………………
Warrant of arrest of accused Balwan received back
unexecuted. Now fresh warrant of arrest of accused Balwan be
issued through SP Rohtak for 15.03.2014. Notice to surety and
identifier of accused Balwan alias Bali be also issued for the
date fixed.”
15.03.2014
“Present : Shri Surender Pahwa, Public Prosecutor for the State.
Accused Ajay in custody, whereas all the remaining accused on
bail except accused Balbir alias Bali.
Warrant of arrest of accused Balbir alias Bali received
back unexecuted. Now fresh non-bailable-warrant against
accused Balbir alias Bali be issued through SP Rohtak for
16.4.2014. Notice to his surety and identifier be issued through
SHO concerned for the date fixed.
16.04.2014
“Present: Shri Surender Pahwa, Public Prosecutor for the State.
Shri O.P. Chugh, counsel for accused Rohtas and Balbir @ Bali.
Accused Ajay in custody while all the remaining accused on
bail except accused Balbir @ Bali…………………….
An application has been moved on behalf of accused
Balbir @ Bali in which it is stated that accused Balbir @ Bali
has filed Curative Petition No.12576/2014 in the Hon’ble Apex
Court and hence, intimation is being submitted before the
Court. Since warrant of arrest have already been issued against
accused Balbir @ Bali, hence, the filing of the application on
behalf of accused is of no consequence. The non-bailable
warrant which was issued against Balbir @ Bali received back
unexecuted and the report is perused. Fresh non-bailable
warrant be again issued against Balbir @ Bali and be sent
through Superintendent of Police, Rohtak with the direction that
the same be executed through some responsible police officer
for 14.5.2014.”
14.05.2014
“ Present Shri Surender Pahwa, Public Prosecutor for the
State.
Shri O.P. Chugh, counsel for the accused Balbir @ Bali.
Accused Ajay in custody while all the remaining accused on
bail except accused Balbir @ Bali.Page 6
6
Non-bailable warrant issued against accused Balbir @
Bali received back unexecuted. Even the bailable warrant
issued against surety has not been executed. Report perused. It
appears that State is not making serious efforts for execution of
the warrant of arrest. Hence, fresh non-bailable warrant be
issued against accused Balbir @ Bali and the same be sent to a
Superintendent of Police, Rohtak Range, Rohtak for execution
with the direction to get the same executed through some
responsible officer of the police for 07.07.2014. Fresh bailable
warrant against surety in the sum of Rs.10,000/- be also issued
for the next date of hearing.”
4. These Orders passed by the Trial Court show that although witnesses
for prosecution were present to record their statements on 20.11.2013, no
statements could be recorded in the absence of the accused. Further, on
subsequent dates the accused in custody was produced but the respondent
consistently remained absent. Though he was represented by his Advocate,
the record does not indicate whether the whereabouts of the respondent were
disclosed. In these circumstances, the present petition was filed in which
notice was issued by this Court on 29.08.2014. Since the respondent could
not be served, fresh notice was ordered to be issued on 27.10.2014 to be
served through the District Judge, Rohtak. The compliance report dated
15.01.2015 was forwarded by the District Judge, Rohtak whereafter this
Court passed the following Order on 19.01.2015:
“In the present contempt petition also the respondent has
failed to enter appearance despite service of a notice issued by
this Court. Our attention is drawn by learned counsel for the
petitioner to an Order dated 14.05.2014 passed by the TrialPage 7
7
Court who also appear to have issued non-bailable warrants
against respondent No.1 which warrants also remain to be
unserved despite several efforts. Be that as it may from the
service report dated 14.01.2015 submitted to this Court it
appears that respondent No.1 is admitted to the hospital for the
past 15 months. No medical certificate to that effect is however
available on record. In the circumstance we deem it fit to direct
the Senior Superintendent of Police, Rohtak Range to verify
whether the statement made by Amit Kumar son of the
respondent regarding admission of respondent No.1 in the
hospital is factually correct and to file a report before this Court
regarding his medical condition if he is indeed admitted to the
hospital anywhere in the State of Haryana”.
5. Accordingly Mr. Shashank Anand, Superintendent of Police, Rohtak
submitted an affidavit on 16.02.2015, stating that son of the respondent in
his statement recorded on 8.02.2015 had stated that his father was admitted
in Privat Hospital, Gurgaon and that said son also produced Medical
Certificate dated 7.02.2015 to that effect. After verifying the fact,
instructions were issued to keep close watch and take the respondent in
custody upon his discharge. The Medical Certificate dated 07.02.2015 was
annexed to the affidavit and the Certificate reads as under:-
“PRIVAT HOSPITAL DR. SACHDEV PVT. LTD.
DLF PHASE-II, M.G. ROAD,
GURGAON-122002, INDIA.
Date:07.02.2015
MEDICAL CERTIFICATE
Certified that Mr. Balbir Singh is admitted in Privat Hospital
since 11.04.2014 with diagnosis ofPage 8
8
An o/c of Ischaemic Heart Disease
With Angioplasty done twice in past
With hypertension
With COPD and Acute Examination
With Anxiety with Acid Peptic Disorder
And GIRD.
He has improved significantly, symptomatically and no
intervention was done during the hospitalization. He is likely to be
discharged in next 5-7 days…….”
6. The matter was taken up on 24.04.2015 when the Counsel for the
State produced copies of Medical Certificates dated 11.04.2014 and
26.03.2015. The Certificate dated 26.03.2015 stated that the respondent was
fit to be produced in a Court of Law but it did not indicate whether he was
discharged, and if not discharged, the reason for his continued admission.
This Court, being prima facie of the view that the Hospital was providing
medical asylum to the respondent to avoid arrest, ordered as under:-
“……………….. We are in the circumstances inclined to
direct the personal presence of the Superintendent of
Police, Rohtak, and Dr. Munish Prabhakar, Medical
Director, Privat Hospital, Gurgaon, who shall file an
affidavit and explain why:
(1) Respondent No.1 has not been taken into custody
despite an order of arrest and medical certificate dated
26th March, 2015 issued by the hospital which declares
him asymptomatic.
(2) The hospital has not formally discharged
respondent No.1 if he is otherwise fit and does not
require any further hospitalization.
(3) The Medical Director shall also place on record
details about the medical bills raised against respondentPage 9
9
No.1 from the date of his admission till date and the
amount paid towards the same by the patient or anyone
on his behalf.
7. Pursuant to the Order dated 24.04.2015 an affidavit was filed by Dr.
Munish Prabhakar, Medical Director, Privat Hospital, Gurgaon on
02.07.2015. Relevant portions of paragraphs 5, 6, 7 and 8 of the affidavit
were as under:-
“5. The patient had improved significantly symptomatically
but required Angiography/Thallium scan for further
management but never gave consent for that. He always
refused consent and wanted conservative treatment. During
the stay he was told many times that he can be discharged but
kept on delaying the decision for being discharged. He was not
making payments for his medical bills. He had kept on
assuring the hospital that he will clear all the medical bills but
kept on paying small amounts and promising balance of
payment soon.
6. It is submitted that on 13.02.2015, the police officials at
PS Kalanaur, Dist. Rohtak, Haryana had informed the Hospital
that the hospital may inform the SHO, Kalanaur Police Station,
Rohtak, whenever the Hospital discharges this patient………
7. Subsequently, the Police official from Kalanaur Police
Station, Rohtak vide his communication dated 15.03.2015 inter
alia, requesting the Hospital to opine whether this patient can be
produced in the Court of Ld. ADJ, Rohtak.
8. In response to his communication dated 15.03.2015 of
the Rohtak Police, the Hospital had clearly informed them on
16.3.2015 that the patient Mr. Balbir Singh is fit to be produced
in the Court. The further details of his treatment in the Hospital
with a Certificate were also issued on 26.03.2015. …….. The
police officials from Rohtak by his communication dated 1.5.15Page 10
10
had requested the Hospital to issue a discharge slip. While
respectfully reiterating that from 15.3.15 itself the police
officials of Rohtak Police had been clearly told by the Hospital
that this patient is fit to be taken to the Court where he is
required, the Hospital once again acceded to the request of the
Rohtak Police and also issued a Discharge Slip on the same day,
i.e., 01.05.2015. ………..”
The affidavit went on to state that the Hospital was not aware of any
direction to the respondent to surrender to custody which he had not
complied with and that the respondent had cleverly continued to stay in the
Hospital.
8. Shashank Anand, Superintendent of Police, Rohtak filed his affidavit
dated 02.07.2015 in which developments subsequent to the filing of the
earlier affidavit were detailed in paragraphs 6 to 13:-
“6. It is further submitted that on 21.02.2015, the S.H.O.
Police Station Kalanaur, District Rohtak, Haryana along with
other police officials of the Police Station went to the above
said hospital to arrest accused Balbir @ Bali but doctors of the
above said hospital refused to discharge the accused Balbir @
Bali. In this regard DDRs No.9 and No.38 dated 21.02.2015
were recorded by the SHO Police Station Kalanaur, Rohtak,
Haryana.
7. That it is pertinent to mention here that on 21.02.2015,
27.02.2015 and 25.03.2015 Sh. Pawan Kumar, HPS, Deputy
Superintendent of Police, Rohtak had also telephonically
contacted Mr. R. N. Sharma, Administrative Officer and Dr.
Prabhakar, Medical Director of the said hospital and requested
them to discharge the accused Balbir @ Bali but no positive
response was provided by the hospital authorities. Page 11
11
8. That accused Balbir @ Bali through his counsel served a
legal notice dated 20.03.2015 upon SHO Police Station
Kalanaur, District Rohtak, Haryana and Deputy Superintendent
of Police, Rohtak, Haryana (Supervisory Officer of Police
Station Kalanaur) calling upon them not to harass him, who is a
patient and further, if any harassment is caused they shall be
personally responsible for the same. In the said notice it was
mentioned that accused Balbir @ Bali, who was under regular
treatment and was unable to appear in the court, was being
unnecessarily harassed by the police.
9. That on 25.03.2015, the S.H.O, of Police Station
Kalanaur, District Rohtak, Haryana along with other police
officials of the Police Station had gone to Privat Hospital Dr.
Sachdev Pvt. Ltd., Phase-II, M.G. Road, Gurgaon to arrest
accused Balbir @ Bali who was declared Proclaimed Offender
in case FIR No.141 dated 06.05.2011 under Sections
148/149/323/325/307/302/109/114 IPC & 25 of Arms Act,
Police Station Kalanaur, District Rohtak, Haryana but the
doctors of the said hospital again refused to discharge accused
Balbir @ Bali under the pretext that his treatment was going on
and intimation shall be given within two days after completing
his treatment. The S.H.O., Police Station Kalanaur, District
Rohtak before going and after returning recorded the DDR
No.12 dated 25.03.2015 at 8.20 AM and DDR No.42 at 10.20
PM mentioning all these details therein at Police Station
Kalanaur, District Rohtak, Haryana.
10. That notwithstanding the issuance of medical certificate
dated 26.3.2015 by Privat Hospital Dr. Sachdev Pvt. Ltd.
Gurgaon, Haryana, the concerned hospital authorities
intentionally did not discharge the accused Balbir @ Bali from
the hospital for reasons known to them. It is further mentioned
that the doctors of the said hospital orally advised the police not
to arrest the accused as it may put his life in jeopardy/or danger.
11. That owing to the prevarication on part of authorities of
Privat Hospital, a request was made to the Chief Medical
Officer (CMO), Gurgaon, Haryana by the S.H.O. Police Station
Kalanaur, District Rohtak, Haryana through ASI Mahabir SinghPage 12
12
No.222/RTK of the said Police Station for constituting a
Medical Board to give opinion whether the accused Balbir @
Bali who is getting treatment in the said hospital can be arrested
from the hospital in the said situation by getting his physical
condition and if not, then to provide the medical team of
Doctors to accompany the police for bringing him to Rohtak so
that he may be produced before the learned Court in the
supervision of Doctors.
12. That the authorities of Privat Hospital Dr. Sachdev Pvt.
Ltd. Gurgaon failed to formally discharge the accused Balbir @
Bali from the hospital despite several visits of the local police.
Due to non-cooperation of Privat Hospital authorities, accused
Balbir @ Bali could not be taken into custody despite an Order
of arrest. It is further submitted that the Chief Medical Officer,
Gurgaon also refused to provide an Ambulance and team of
Doctors in whose supervision accused Balbir @ Bali i.e.
respondent No.1 could be brought to Rohtak and produced
before the learned Court of concerned Magistrate, Rohtak. The
local police tried its level best to arrest the accused by making
sincere efforts but due to the above said circumstances, it could
not succeed in arresting accused Balbir @ Bali i.e. respondent
No.1.
13. That on 01.05.2015, accused Balbir @ Bali was formally
discharged by the hospital authorities and thereafter, he was
immediately arrested and produced before the learned Court of
concerned Magistrate, Rohtak, Haryana, on very same day by a
team of police officials headed by Sh. Pawan Kumar, HPS,
Deputy Superintendent of Police, Rohtak. The learned Court
issued direction to the police that “before taking him to central
jail, accused shall be medicolegally examined and if the
Medical officer examing the accused feels any necessity of
retaining him in the hospital, then it is for him to decide. In
compliance of Order dated 01.05.2015 passed by the learned
Court of ACJM, Rohtak, the accused was brought before
Medical Officer of PGIMS, Rohtak, who after examining the
accused admitted him in ICCU vide CR No.342761 dated
01.05.2015 for evaluation, investigation, treatment and
monitoring. The accused Balbir @ Bali remained admitted inPage 13
13
PGIMS, Rohtak from 01.05.2015 to 12.05.2015. That on
12.05.2015, accused Balbir @ Bali was discharged from
PGIMS, Rohtak and is since in District Jail, Rohtak, Haryana.”
9. The matter was thereafter taken up on 08.07.2015 when this Court,
with a view to find out whether the Hospital had become party to attempts
of the respondent to prevent the law from taking its course, passed following
Order:-
“………From the versions presented to us about the
circumstances in which respondent-Balbir continued to evade
arrest by the police on account of his prolonged admission to
the hospital, we are prima facie of the view that an appropriate
enquiry is called for in order to bring the truth to light
especially with a view to finding out whether the hospital had
become a privy to the attempt of the respondent to somehow
prevent the law from taking its course. The fact that the
respondent remained admitted to the hospital concerned for a
long period without so much as paying the amount claimed by
the hospital shows that the admission of the respondent to the
hospital may not have been an innocent act. We do not for the
present wish to say anything further at this stage lest it causes
prejudice to any party. All that we need mention is that, in our
opinion, the appropriate course would be to direct a proper
inquiry into the circumstances in which the respondent-Balbir
continued to avoid arrest and escape from the long arms of law
with or without the help of the hospital concerned.
We accordingly direct the Director of Central Bureau of
Investigation (CBI) to suitably nominate a senior officer to
conduct an inquiry into the circumstances in which the
respondent was admitted to the Privat Hospital Dr. Sachdev Pvt.
Ltd. and also to report whether there was any criminality
attached to the action of the management of the hospital or on
the part of the doctors concerned in granting a prolonged
admission to the respondent with the object of protecting the
respondent from being arrested and committed to jail. We hope
and trust the officer concerned completes the inquiryPage 14
14
expeditiously and submits a report to this Court within a period
of two months from today…….. ”
10. An enquiry was accordingly conducted by Shri S.S. Kishore,
Superintendent of Police, CBI, New Delhi. In his report dated 18.09.2015 he
summarized the matter as under:-
“(4). Summary of the Enquiry Report is as follows:
(a) Accused Balbir Singh is a heart patient and had
undergone a treatment at Medanta Hospital, Gurgaon as an
indoor patient from 4.9.2013 to 10.9.2013 and as an outdoor
patient on 17.9.2013 and 18.10.2013 i.e. prior to cancellation of
his bail by this Hon’ble Court.
(b) After this Hon’ble Court cancelled the bail of accused
Balbir Singh on 24.10.2013, the accused got himself admitted
in the said Hospital on 15.11.2013.
(c) Accused Balbir singh remained admitted in the said
Hospital for a total 527 days on three occasions viz. from
15.11.2013 to 25.12.2013 for 41 days, from 31.12.2013 to
9.04.2014 for 100 days and from 11.04.2014 to 1.05.2015 for
386 days, respectively.
(d) Accused Balbir Singh did not give his consent for
Angiography as suggested by the doctors during his admission
in the said Hospital, and requested for Conservative Treatment
through medicines which was agreed to by the doctors.
(e) Accused Balbir Singh was not required to remain
admitted in the said Hospital for such a long period for the
Conservative Treatment which he was given in said Hospital as
confirmed by Dr. Munish Prabhakar, the Consultant Physician
of the said Hospital.
(f) There was no change in the condition of accused Balbir
Singh from 12.06.2014 to 1.12.2014 necessitating him to be
kept as indoor patient as is evident from the table given at ParaPage 15
15
3 (ii) (c ) at Page No.5 of this Enquiry Report, still he was kept
in the said Hospital for no reason.
(g) No laboratory tests were conducted during the period
from 25.02.2014 to 12.04.2014 and from 12.04.2014 to
01.5.2015 which indicate that neither illness of accused Balbir
Singh was serious nor treatment given to him was intensive.
(h) There was no cogent ground for which accused Balbir
Singh was allowed to move out of the said Hospital for 47
times during the admission in the said Hospital. Rather it
establishes that he was fit to move freely and was not required
to be kept as indoor patient.
(i) There was no justification for the continued admission of
accused Balbir Singh in the said Hospital from 11.04.2014 to
1.05.2015 i.e. for 386 days.
(j) Accused Balbir Singh remained admitted in the said
Hospital without any payment for the first 274 days during his
third admission as he was admitted in the said Hospital on
11.04.2014 and he made the first payment of Rs. 50,000/- only
on 10.01.2015.
(k) The administration of said Hospital kept the accused
admitted for financial gains as they were getting approximately
Rs. 9,500/- per day.
(l) Accused Balbir Singh made full payment of his first and
second admission bills in said Hospital, but paid only a part of
his dues for his third admission bills.
(m) Filing of complaint case against accused Balbir Singh in
the Court of Judicial Magistrate, 1st Class, Gurgaon u/s 138 of
the Negotiable Instruments Act on 20.07.2015 for dishonour of
cheque of Rs. 5,00,000/- and filing of a suit against accused
Balbir Singh on 13.08.2015 in the Court of Civil Judge,
Gurgaon for recovery of remaining bill amounting to Rs.
29,58,459/- (Twenty Nine Lakh Fifty Eight Thousand Four
Hundred and Fifty Nine) appear to be afterthoughts of thePage 16
16
administration of the said Hospital as these have been filed after
the Order dated 8.07.2015 of this Hon’ble Court.
(n) The said Hospital on more than one occasion informed
Rohtak Police in writing that accused Balbir Singh was fit to be
taken to Court but did not discharge him.
(o) It appears that Rohtak Police came to know about
accused Balbir Singh being admitted in the said Hospital on
8.02.2015, but arrested the accused only on 1.05.2015.
(p) The stand of Rohtak Police that accused could not be
arrested as he was not discharged by the said Hospital does not
hold substance.
(q) Certain inconsistencies have been found in the affidavit
filed by Rohtak Police. The details are mentioned in Para 3 (x)
at Page Nos. 12 and 13 of this Enquiry Report.”
11. The Enquiry Report also dealt with the efforts made by local police to
locate and arrest the respondent and reported as under:-
“(viii). NBWs and Efforts made by local police to locate and
arrest accused Balbir Singh
This Hon’ble Court had rejected the bail of accused
Balbir Singh on 24.10.2013 and directed him to surrender
forthwith. Accused Balbir Singh did not comply with the Order
of this Hon’ble Court. Thereafter, the Trial Court of Additional
Sessions Judge, Rohtak, Haryana issued various non-bailable
warrants of arrest against accused Balbir Singh on 08.11.2013,
21.11.2013, 02.01.2014, 12.2.2014, 19.03.2014, 18.04.2014 and
15.05.2014 which were returned unexecuted by PS Kalanaur.
None of the execution report mentioned about any enquiry from
family members of the accused or his whereabouts. It was also
revealed that some of the entries made in the General Diaries of
PS Kalanaur in connection with the efforts for arresting the
accused Balbir Singh do not correspond with the respective log
books of vehicles.”Page 17
17
12. After considering the Enquiry Report, this Court was prima facie of
the opinion, that notice was required to be issued to Dr. K.S. Sachdev, why
he should not be punished for committing contempt of court. The Order
dated 19.11.2015 passed by this Court dealt with the matter as under:-
“………………We have heard learned counsel for the
parties and are of the view that a notice of show cause ought to
issue even to Dr. K.S. Sachdev who happens to be the
Managing Director of Privat Hospital Dr. Sachdev Pvt. Ltd.,
Gurgaon. A notice shall accordingly issue asking Dr. K.S.
Sachdev to show cause why he should not be punished for
committing contempt of this Court in as much as from the
material placed on record, it appears that Balbir Singh accused
in Sessions Case No. 62 of 2011 was harboured by the Hospital
run by the Company of which he is the Managing Director for a
considerable period and prima facie without any justification
and only with a view to preventing his arrest and committal to
jail pursuant to the Orders passed by this Court in Criminal
Appeal No. 1834 of 2013 the Orders passed by this Court in
Criminal Appeal No. 1834 of 2013 dated 24.10.2013. Notice
shall be directed to the Station House Officer to the
Jurisdictional Police Station for service upon Dr. K.S. Sachdev.
………………. Mr. Shashank Anand, S.P. shall also file
his reply affidavit to the contempt petition as also the
preliminary report within three weeks from today with an
advance copy to learned counsel for the petitioner who will
have one week thereafter to respond to the same.”
13. Accordingly, Shashank Anand, Superintendent of Police, Rohtak filed
his affidavit dated 07.12.2015 submitting that he took charge as
Superintendent of Police, Rohtak on 24.11.2014. He stated that the fact thatPage 18
18
the respondent had not surrendered despite cancellation of his bail by this
Court was brought to his knowledge for the first time on 12.01.2015,
whereafter the matter was entrusted to Deputy Superintendent of Police,
Meham, Rohtak. He further stated that he became aware of the admission of
the respondent in Privat Hospital, Gurgaon on 16.02.2015. He thereafter
undertook steps to ensure that the respondent did not escape and deployed a
guard at the hospital since 16.02.2015 right till 01.05.2015 when the
respondent was finally discharged from the hospital. The affidavit further
stated that soon after the enquiry report of CBI a fact finding probe to fix the
responsibility/negligence/ connivance on part of police officials who dealt
with process of service of non-bailable warrant against the respondent was
undertaken. Pursuant to the enquiry report dated 07.12.2015, vide Memo
Nos.2145, 2146, 2147 and 2148 all dated 07.12.2015, necessary action was
recommended against certain police officials.
14. A reply affidavit was also filed by Dr. K.S. Sachdev on 07.01.2016. It
was submitted that the hospital came to know that the respondent was
required in a criminal case only on 13.02.2015. However, the affidavit did
not disclose why even after 13.02.2015 the respondent-contemnor was not
discharged. The affidavit stated that after it received a communication from
Rohtak Police dated 15.03.2015 to get the respondent examined by aPage 19
19
Medical Board, that the hospital on 16.03.2015 furnished a fitness report to
Rohtak Police declaring the respondent to be fit to be produced in court of
law. The affidavit further stated that for reasons best known to them the
police did not take the respondent from the hospital despite such fitness
report and the respondent was finally discharged after letter dated
01.05.2015 seeking his discharge was received from the police. The
affidavit stated that no police official came to the hospital seeking custody of
the respondent and that the hospital had not refused to comply with the
request of the police at any stage. It further stated:
“The prolonged admission happened as the accused
trapped the Hospital by not paying. There was no
criminality on part of hospital as it was totally unaware
of his criminal status before 13.02.2015. The hospital
did not keep him as he was paying Rs.9,500/- to the
hospital, it was non- payment of this amount that gave
him prolonged stay and he very cleverly used this
position that for the fear of losing money, the hospital
will not discharge him and he trapped the hospital very
cleverly being a wily politician.”
15. We heard Mr. Rishi Malhotra, learned Advocate for the petitioner, Mr.
Tushar Mehta, learned Additional Solicitor General appearing for Shashank
Anand, Superintendent of Police, Mr. Dushyant A. Dave, learned Senior
Advocate for Dr. K.S. Sachdev and Mr. Siddharth Luthra, learned Senior
Advocate for Dr. Munish Prabhakar. Page 20
20
16. From the record and the Enquiry Report as stated above, it is clear that
soon after the Order dated 24.10.2013 passed by this Court, the respondent
remained admitted in the Hospital for a total of 527 days. Nothing has been
placed on record, nor any medical condition or reasons have been adverted
to why such admission was required in the first place. As found in the
Enquiry, no laboratory test was conducted during the period of admission
from 25.02.2014 to 12.04.2014 and from 12.04.2014 to 01.05.2015. This
shows that the illness as projected was not serious at all and no intensive
treatment as indoor patient was required or called for. This prolonged
admission without any justifiable medical reason was essentially to defeat
the direction issued by this Court in its Order dated 24.10.2013 and repeated
non-bailable warrants issued by the Trial Court.
17. The Order passed by the Trial Court on 20.11.2013 shows that an
affidavit of son of the respondent was filed along with a copy of review
petition. The application seeking exemption was rejected by the Trial Court
and SHO concerned was issued notice why the warrant of arrest was not
executed. Subsequent Orders dated 05.02.2014, 15.03.2014, 16.04.2014 and
15.04.2014 indicate that fresh warrants of arrest were issued through
Superintendent of Police. Neither the respondent surrendered to custody as
directed by this Court nor the concerned police took any steps to arrest himPage 21
21
or try to find his whereabouts. No report was made to the Trial Court. What
is evident is total inaction on the part of the police which helped the
respondent in evading the arrest and defeating the Orders passed by this
Court as well as by the Trial Court. This callous attitude and conduct of the
police calls for strict administrative actions and corrective penal measures.
18. The conduct exhibited by the respondent in getting himself admitted
in the hospital when there was no medical reason to justify such admission
and in continuing to remain admitted till action was taken by this Court in
contempt jurisdiction, exhibits scant respect and regard for the orders and
processes issued by the Court. Despite issuance of notice, the respondent has
neither filed any response nor tendered any apology. Having gone through
the record and considered the Enquiry Report, we have no doubt that the
respondent is guilty of having committed contempt of the direction issued by
this Court in its Order dated 24.10.2013 and also in obstructing the
administration of justice.
19. We now turn to the role of the hospital and medical professionals. The
explanation offered by Dr. Munish Prabhakar and Dr. K.S. Sachdev was that
they were not aware of any direction by this Court to the respondent to
surrender to custody or that the respondent was required in connection withPage 22
22
any crime. At the outset, it must be stated that the respondent stood admitted
in the hospital for 527 days. Not a single laboratory test was conducted
during the period from 15.02.2014 to 01.05.2015. The papers produced on
record do not in any way suggest any medical emergency which could
justify continued admission of the respondent as an indoor patient. Further,
during the third admission of the respondent from 12.04.2014 the first
payment to the hospital was made only on 10.01.2015 i.e. nearly after 247
days. It is inconceivable that in normal circumstances a man, who has no
ailment or a medical condition requiring emergency treatment would be kept
as indoor patient without any laboratory test and without recovering a single
paisa for more than 247 days. Moreover, the record indicates that on as
many as 47 occasions during his admission the respondent was allowed to
move out of the hospital without even an endorsement by any medical
professional justifying such movement. The Enquiry Report further shows
that there used to be regular stream of visitors during the stay of respondent
in the hospital. These features clearly show that the respondent was in
perfect condition of health and never really required admission in the
hospital as an indoor patient. The role of the hospital was certainly not as
innocent as is sought to be projected and the features detailed above clearlyPage 23
23
show that the hospital was party to the attempts on part of the respondent to
defeat the Order passed by this Court.
20. When the compliance report forwarded by the District Judge, Rohtak
on 15.01.2015 indicated admission of the respondent in a hospital, this Court
by Order dated 19.01.2015 called for a report from the Superintendent of
Police, Rohtak. The enquiry initiated thereafter resulted in recording of the
statement of son of the respondent on 08.02.2015 who also produced
medical certificate dated 07.02.2015. This certificate issued by Privat
Hospital shows that the respondent was likely to be discharged in next 5 to 7
days. Significantly, said certificate was not even referred to in any of the
subsequent affidavits filed by Dr. Munish Prabhakar or Dr. K.S. Sachdev. If
the respondent was likely to be discharged in few days as certified on
07.02.2015 what went wrong in not discharging him or was there any
medical emergency justifying his continued admission? Nothing is spelt out
in any of the affidavits. As a matter of fact, the subsequent certificate dated
26.03.2015 did not even speak of likelihood of discharge and used the
expression “………he is fit to be produced in the Court of law as per present
health condition.” The assertions made by Shashank Anand in his affidavit
dated 02.07.2015 are that notwithstanding issuance of such certificate dated
26.03.2015, the hospital refused to discharge the respondent and orallyPage 24
24
advised the police not to arrest the respondent lest it may put his life in
jeopardy or danger. The Enquiry Report rightly observed “……the said
hospital on more than one occasion informed Rohtak Police in writing that
accused Balbir Singh was fit to be taken to court but did not discharge him.”
It was only after this Court passed the Order dated 24.04.2015 directing
personal presence of Dr. Munish Prabhakar with a direction to file an
affidavit and explain the situation, that the hospital discharged the
respondent on 01.05.2015 which then resulted in arrest and production of the
respondent.
21. The explanation offered by Dr. Munish Prabhakar and Dr. Sachdev
that the respondent trapped the hospital and by non-payment of the bills kept
prolonging his stay in the hospital does not inspire confidence at all. If the
hospital was really a victim of the machinations of the respondent, at the
first opportunity i.e. when requisition was made by the police on 13.02.2015,
the hospital would have responded immediately. The requisition dated
13.02.2015 had informed the hospital that respondent was a proclaimed
offender and that his custody was required. This requisition was close on the
heels of the medical certificate dated 07.02.2015 and if that certificate was a
correct one, the time was ripe for discharge of the respondent. However, as
stated by Shashank Anand in his affidavit dated 02.07.2015, the hospitalPage 25
25
refused to discharge the respondent. The theory that the hospital was
trapped by the designs of the respondent is a mere eye-wash and we reject
the same. Thus, the inescapable conclusion is that the hospital extended
protection and asylum to the respondent to defeat the Order passed by this
Court as well as those passed by the Trial Court and thereby obstructed
administration of justice.
22. Dr. Munish Prabhakar has been Medical Director of the hospital and
as submitted by learned Senior Counsel on his behalf, he receives salary and
some percentage of consultation charges recovered from the patients. Dr.
K.S. Sachdev, on the other hand, has been the Managing Director of the
Company which owns and runs said hospital. We have found that the
continued admission for such a long period as indoor patient was not
justifiable for any reason or medical condition of the respondent. Both these
medical professionals are responsible for such prolonged admission which
was actuated by only one reason which was to extend medical asylum to the
respondent as a cover to defeat the orders passed by this Court and the Trial
Court. In this process, these medical professionals not only helped the
respondent in violating the Order of this court but they also obstructed
administration of justice.
23. The aforementioned conclusions then raise issues regarding the extent
of liability of the contemnors. Sections 2 (b) and 2 (c) of the Contempt of
Courts Act, 1971 which define ‘civil contempt’ and ‘criminal contempt’ are
as under:-
“(b) “civil contempt” means willful disobedience to any
judgment, decree, direction, order, writ or other process
of a court or willful breach of an undertaking given to a
court;
(c) “criminal contempt” means the publication (whether
by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing
of any other act whatsoever which-
(i) scandalises or tends to scandalise, or lowers or
tends to lower the authority of, any court; or
(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;”
Willful disobedience to a direction issued by this Court on
24.10.2013 on part of the respondent is quite evident. He was party to the
proceedings and bound by the order and as such his liability on that court
stands established. Further, by his defiance of the direction so issued, he also
obstructed administration of justice. He is thus liable for committing civil
contempt as well as criminal contempt. But the Medical Professionals
namely Dr. Munish Prabhakar and Dr. K.S. Sachdev were not parties to the
matter where the direction in question was passed.
24. As regards the liability of the aforesaid Medical Professionals,
questions that arise are: 1) whether a person, who is not bound by a direction
issued by the Court could be held guilty for committing contempt of court
for his conduct in either directly aiding and abetting violation on part of the
person who is bound by such direction; and 2) what is the extent of liability
of such person.
A.] In Seaward v. Paterson1
the landlord of the concerned
premises had obtained an injunction against Paterson i.e. his tenant
restraining him from doing or allowing to be done anything on the premises
which would be a nuisance to the landlord and from using the premises
otherwise than for the purposes of a private club. Alleging that the tenant
had committed contempt of the court by allowing the premises to be used for
boxing matches, the landlord applied for committal of two other persons,
namely, Sheppard and Murray on the ground that they had aided and assisted
the tenant in his disobedience to the injunction. The following passages
from the Judgment of Lindley LJ are quite instructive:
“Now, Let us consider what jurisdiction the court has to make
an order against Murray. There is no injunction against him--
He is no more bound by the injunction granted against Paterson
than any other member of the public. He is bound, like other
members of the public, not to interfere with, and not to obstruct,
the course of justice; and the case, if any, made against him
1
(1895-99) All ER 1127
must be this--not that he has technically infringed the
injunction, which was not granted against him in any sense of
the word, but that he has been aiding and abetting others in
setting the Court at defiance, and deliberately treating the order
of the Court as unworthy of notice. If he has so conducted
himself, it is perfectly idle to say that there is no jurisdiction to
commit him for contempt as distinguished from a breach of the
injunction, which has a technical meaning.”
“A motion to commit a man for breach of an injunction, which
is technically wrong unless he is bound by the injunction, is one
thing; and a motion to commit a man for contempt of court, not
because he is bound by the injunction by being party to the
cause, but because he is conducting himself so as to obstruct the
course of justice, is another and a totally different thing. The
difference is very marked. In the one case the party who is
bound by the injunction is proceeded against for the purpose of
enforcing the Order of the Court for the benefit of the person
who got it. In the other case, the Court will not allow its process
to be set at naught and treated with contempt.”
B] In Z Ltd. v. A
2
the plaintiff had obtained injunction against
certain defendants and the assets of one such defendant against whom the
injunction was granted, were held by a bank. The bank was served with a
copy of the injunction but the concerned defendant had not yet been served.
While considering the question whether any disposal of assets belonging to
the defendant by the bank would make it liable for committing contempt of
Court, it was stated as under:
“I think that the following propositions may be stated as to the
consequences which ensue when there are acts or omissions
which are contrary to the terms of injunction. (1) The person
2
(1982) 1 All ER 556
against whom the Order is made will be liable for contempt of
Court if he acts in breach of the Order after having notice of it.
(2) A third party will also be liable if he knowingly assists in the
breach, that is to say if knowing the terms of the injunction he
willfully assists the person to whom it was directed to disobey
it. This will be so whether or not the person enjoined has had
notice of the injunction… I will give my reasons for the second
proposition and take first the question of prior notice to the
defendant. It was argued that the liability of the third person
arose because he was treated as aiding and abetting the
defendant (i.e. was an accessory) and as the defendant could
himself not be in breach unless he had notice it followed that
there was no offence to which the third party could be an
accessory. In my opinion this argument misunderstands the true
nature of the liability of the third party. He is liable for
contempt of court committed by himself. It is true that his
conduct may very often be seen as possessing a dual character
of contempt of court by himself and aiding and abetting the
contempt by another, but the conduct will always amount to
contempt by himself. It will be conduct which knowingly
interferes with the administration of justice by causing the
Order of the court to be thwarted.”
C] The extent of liability of third party in such actions was
considered by the House of Lords in Attorney General v. Times
Newspapers Ltd. and another3
. In that case the Attorney General had
brought action against two newspapers seeking permanent injunction
restraining them from publishing material from a book written by a person
who was formerly a member of the security service and by terms of his
employment was bound by confidentiality which would stand breached if his
memoirs were published. While the interlocutory injunctions restraining
3
(1991) 2 All ER 398
publication of the material pending trial of such action was granted against
those two newspapers, three other newspapers published extensive extracts
and summaries of the book following which proceedings for criminal
contempt against them were brought by the Attorney General. At the trial of
those proceedings those three other newspapers were held to be guilty of
criminal contempt. Lord Brandon of Oakbrook concluded as under:
“………………The claims of the Attorney General in the
confidentiality actions were for permanent injunctions
restraining the defendants from publishing what may
conveniently be called Spycatcher material. The purpose of the
Millet injunctions was to prevent the publication of any such
material pending the trial of the confidentiality actions. The
consequence of the publication of Spycatcher material by the
publishers and editor of the Sunday Times before the trial of the
confidentiality actions was to nullify, in part at least, the
purpose of such trial because it put into the public domain part
of the material which it was claimed by the Attorney General in
the confidentiality actions ought to remain confidential. It
follows that the conduct of the publishers and editor of the
Sunday Times constituted the actus reus of impeding or
interfering with the administation of justice by the court in the
confidentiality actions.”
D] In a separate concurring opinion Lord Jauncey of Tullichettle
stated as under:
“I turn to consider whether there is any reason why established
principle should not be applied to the situation in this case. I do
not accept the propostion that to apply established principles in
the foregoing circumstances would effectively be to convert
every injuction from an order in personam to an order contra
mundum. That proposition ignores the distinction between the
breach of an order by the person named therein and interference
with the course of justice resulting from a frustration of the
order by the third party.”
25. In our view, the Medical Professionals namely Dr. Munish Prabhakar
and Dr. K.S. Sachdev extended medical asylum to the respondent without
there being any reason or medical condition justifying prolonged admission
of the respondent as an indoor patient as a cover to defeat the Orders passed
by this Court and the Trial Court, as stated above and thereby aided and
assisted the respondent in violating the Order of this Court. By such conduct
these Medical Professionals have obstructed administration of justice.
26. We thus hold that the respondent guilty of having violated the Order
dated 24.10.2013 passed by this Court and for having obstructed
administration of justice. We also hold Dr. Munish Prabhakar and Dr. K.S.
Sachdev guilty for having helped the respondent in his attempts and thereby
obstructing administration of justice. Having held so, we could straightaway
have imposed appropriate punishment under the Act. However, we deem it
appropriate to grant one more opportunity to these contemnors. The
respondent has not filed any affidavit nor tendered an apology. At the same
time for Dr. K.S. Sachdev, Managing Director of the company that owns the
hospital is said to be 76 years of age. Considering the fact that these are
medical professionals with sufficient standing, in our view ends of justice
would be met if one more opportunity is granted to them to present their
view on the issue of punishment. In the circumstances, we direct presence of
these three contemnors on January 2, 2017. The respondent is in custody and
therefore appropriate production warrant shall be issued under the signature
of Registrar of this Court ensuring presence of the respondent before this
Court. The concerned police is directed to facilitate such production of the
respondent. The contemnors can also present their views and make
appropriate submission in writing on or before December 23, 2016.
27. Coming to the role of the police officials in the present matter, we
have already observed that the conduct exhibited by the concerned police
officials in not ensuring compliance of the Orders passed by the Trial Court
calls for strict administrative action. The actions in that behalf have already
been initiated and for the present we rest content by observing that the
disciplinary proceedings shall be taken to logical end and the guilty shall be
brought to book. We request the Director General of Police of Haryana and
the Home Secretary to look into the matter and ensure that the departmental
proceedings are taken to logical end at the earliest. The status report/action
taken report in that behalf shall be filed in this court within three months
from the date of this judgment.
28. As regards the role of Mr. Shanshank Anand, Superintendent of Police,
Rohtak, we find that he took charge as Superintendent of Police, Rohtak on
24.11.2014 i.e. well after the Order dated 24.10.2013 of this Court and after
the Orders directing issuance of non-bailable warrants against the respondent
were passed by the Trial Court. However, even according to his own
affidavit, if he became aware that respondent had not surrendered despite
cancellation of his bail and that he was admitted in Privat Hospital, Gurgaon
only in February 2015, the steps that he took after 16.2.2015 cannot strictly
be called actions taken with reasonable promptitude. Even according to
Paras 6, 7 and 8 of affidavit dated 2.07.2015 nothing was done during the
period 27.02.2015 to 23.03.2015. The action apparently was initiated only
after the Order dated 24.4.2015 was passed by this Court. Though we
express dissatisfaction, we do not deem it appropriate to carry the matter
further as against him. The notice issued to him is discharged and the
petition as against him stands closed.
29. Ordered accordingly.
…………………CJI.
(T.S. Thakur)
…………………….J.
(R. Banumathi)
…………………….J.
(Uday Umesh Lalit)
New Delhi,
December 15, 2016
No comments:
Post a Comment