Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
MISCELLANEOUS APPLICATION NO.1902 OF 2022
(@ DIARY NO.33420 OF 2022)
WITH
INTELOCUTORY APPLICATION NO.157792/2022
(APPLICATION FOR CLARIFICATION/DIRECTION)
IN
CONTEMPT PETITION (CIVIL) NO.2120 OF 2018
IN
SPECIAL LEAVE PETITION (CIVIL) NO.20417 OF 2017
MR. VINAY PRAKASH SINGH PETITIONER(S)
VERSUS
SAMEER GEHLAUT & ORS. RESPONDENT(S)
IN THE MATTER OF:-
SHIVINDER MOHAN SINGH APPLICANT
J U D G M E N T
K. M. JOSEPH, J.
1. This Miscellaneous application No.1902 of 2022 is
filed in Contempt Petition (Civil) No.2120/2018 in SLP (Civil)
No.20417/2017. The applicant in this application is contemnor
No.10 (Dr. Shivinder Mohan Singh). The contempt petition
culminated in an order dated 15th November, 2019. We need only
refer to the record of proceedings dated 15th November, 2019
Signature Not Verified
which indicates how the matter was dealt with by the Court.
Digitally signed by
Jagdish Kumar
Date: 2022.11.17
17:03:27 IST
Reason:
"ii) Malvinder Mohan Singh, Director of
Oscar Investments Limited and Diretor of RHC
Holding Private Limited (Contemnor Nos.9 and
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12) and Shivinder Mohan Singh, Director of
Oscar Investments Limited and Director of
RHC Holding Private Limited (Contemnor
Nos.10 and 13) have knowingly and willfully
violated the orders of this Court dated
11.08.2017, 31.08.2017 and 15.02.2018 as
continued on 23.02.2018. Therefore, we hold
both of them guilty of committing Contempt
of this Court. We give one chance to them to
purge themselves of the contempt. We, direct
that in case each of the contemnors deposits
a sum of Rs.1170.95 crores in this Court
within eight weeks from today then we may
consider dealing with them in a lenient
manner, while imposing sentence."
2. Thereafter, we may notice direction No.2, from the order
dated 03.02.2020, which is as follows:-
" Direction No.2:
Both contemnors Malvinder Mohan Singh
and Shivinder Mohan Singh are present in
Court and they have been brought from
judicial custody as they are in jail in
respect of some other case. On the oral
request made by learned Counsel for
Malvinder Mohan Singh and Shivinder Mohan
Singh, we direct Naresh Kumar, ASI who has
brought them to this Court to ensure that
both the detenus are permitted to meet
their family members till 2.00 P.M., within
the Supreme Court premises.
Shivinder Mohan Singh has filed an
affidavit. We are not fully satisfied with
the same. Ms. Meenakshi Arora, learned
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Senior Counsel, prays for some time to file
a more detailed affidavit. Malvinder Mohan
Singh and Shivinder Mohan Singh are
directed to file fresh proposals as to how
they want to purge themselves of the
contempt. They may file an appropriate
application as to how they would like to
discharge their liability which is the
subject-matter of the contempt petition,
positively by 05.03.2020 with advance
copies to all the parties and the matter be
listed before the Court on 16.03.2020.
We also direct the jail authorities to
ensure that Malvinder Mohan Singh can meet
Ms. Vijaylakshmi Menon, Adv. and Ms.
Anuradha Dutt, Adv. (DMD Advocates) 30,
Nizamuddin East, New Delhi-110013 and
Shivinder Mohan Singh, be permitted to meet
Mr. Vivek Jain, Adv. 606-B, Adiswar
Apartments, 34, Ferozshah Road, New Delhi –
110 001 for four hours on two occasions
between this period and they will escort
them to the offices of the counsel."
3. Thereafter the matter came to be finally disposed of by order
dated 22.09.2022. We need only notice the following part:-
"30. In the premises, we pass the
following directions:
(a) Contemnor Nos. 9 and 10 are
sentenced to suffer six months imprisonment
and pay fine in the sum of Rs.5,000/- each
within four weeks from today. In case of
default of payment of fine, the contemnors
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shall undergo further imprisonment of two
months."
4. The present application has been filed on the following
basis. It is, inter alia, stated that the applicant was already
in the custody of this Court in the Contempt Petition (Civil)
No.2120 of 2018 from 03.02.2020 itself when he was brought from
Jail No.7, Tihar Jail, New Delhi to this Court. It is further
stated that the applicant had never applied for bail after
03.02.2020 and he thus has been in continuous custody of this
Court. Thereafter the cause for moving the present application
has been set out which is as follows:
"That the Applicant is now constrained to
move the present application for clarification as
Paragraph 30 (a) of the Order dated 22.09.2022
does not specify the date of commencement of the
term of imprisonment of 6 (six) months.
Pertinently, the authorities in the Tihar Jails,
New Delhi have taken a position that the
Applicant's term of imprisonment of 6 (six)
months shall commence from the date of the Order
dated 22.09.2022, given that the Order dated
22.09.2022 is silent regarding the date of
commencement of the term of imprisonment.
5. We may now notice the relief sought in the prayer which
is, inter alia , as follows:-
"a. Allow the present application and
issue necessary clarification in respect
of Paragraph 30(a) of the Order dated
22.09.2022 in Contempt Petition No.2120
of 2018 to the effect that the term of
imprisonment of 6 (Six) months shall be
deemed to have commenced from 03.02.2020
instead of 22.09.2022."
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6. We heard Ms. Meenakshi Arora, learned senior
counsel appearing on behalf of the applicant and Mr. Rajiv
Dutta, learned senior counsel appearing on behalf of the non-
applicant/ Ms. Daiichi Sankyo Company Limited. Ms. Meenakshi
Arora, learned senior counsel appearing on behalf of the
applicant would point out that it is evident from the
narration of facts which we have already made that the
applicant must be treated as being in custody from
03.02.2020. The applicant stood sentenced finally for a
period of six months. The applicant has already spent more
than 30 months in custody if the beginning of the period is
determined as 03.02.2020. It is also contended that the
applicant was produced again on 16.03.2020. It is further
contended that the applicant was not released on bail.
Therefore, the applicant must be treated as being in custody.
In this connection, she bolsters her contentions with
reference to Section 428 of the Code of Criminal Procedure,
1973. Section 428 of the Cr.P.C. reads as follows:-
" 428. Period of detention undergone by the
accused to be set off against the sentence or
imprisonment.- Where an accused person has, on
conviction, been sentenced to imprisonment for a
term [not being imprisonment in default of payment
of fine], the period of detention, if any,
undergone by him during the investigation, inquiry
or trial of the same case and before the date of
such conviction, shall be set off against the term
of imprisonment imposed on him on such conviction,
and the liability of such person to undergo
imprisonment on such conviction shall be
restricted to the remainder, if any, of the term
of imprisonment imposed on him."
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7. She has also relied upon the judgment of this Court
reported in (2001) 6 SCC 311 , State of Maharashtra and Another
versus Najakat Alia Mubarak Ali. Still further, she would
contend that this Court has taken the view that a person can be
said to be in custody when he surrenders before the Court. [See
in (1980) 2 SCC 559, Niranjan Singh and Another Versus Prabhakar
Rajaram Kharote and Others. S he would therefore conclude by
contending that in the interest of justice also this is a case
which requires that this Court clarifies that the period of
custody as undergone from 03.02.2020 should be reckoned and
therefore in view of the period of imprisonment actually imposed
on 22.09.2022, no further custody is required in connection with
the case.
8. Per contra , Mr. Rajiv Dutta, learned senior counsel
for the non-applicant would point out that when the applicant
was produced before this Court pursuant to the orders dated
15.11.2019 on 03.02.2020, it was only for the purpose of
affording an opportunity to the applicant to purge himself of
the contempt which is self evident from the perusal of the
proceedings.
9. We find no merit in the contentions of the applicant.
The following are the reasons. Section 428 of Cr.P.C. on which
the applicant lays considerable store by, actually contemplates
the presence of two circumstances. They have been highlighted in
the very judgment which the applicant relies on, namely (2001) 6
SCC 311, State of Maharashtra and Another versus Najakat Alia
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Mubarak Ali. During the stage of investigation, inquiry or trial
of a particular case the prisoner should have been in jail at
least for a certain period. The second requisite is that he
should have been sentenced to a term of imprisonment in that
case. In the facts of this case, the applicant was in custody
admittedly in connection with another case on 15.11.2019 as also
on 03.02.2020 and also on 16.03.2020. For the mere reason that
this Court after convicting the applicant by order dated
15.11.2019 caused the production of the applicant before this
Court for the purpose of considering the imposition of an
appropriate sentence, it cannot be said that the applicant would
be in custody. In this regard we notice that in the order dated
15.11.2019, the Court contemplated a chance being afforded to
the applicant to purge himself of the contempt.
10. At this juncture, it may be apposite that we deal with
the argument based on the judgment of this Court in (1980) 2 SCC
559, Niranjan Singh and Another Versus Prabhakar Rajaram Kharote
and Others. Therein we may notice the following statements which
read as follows:-
"7. When is a person in custody , within the
meaning of Section 439 CrPC? When he is in
duress either because he is held by the
investigating agency or other police or
allied authority or is under the control of
the court having been remanded by judicial
order, or having offered himself to the
court's jurisdiction and submitted to its
orders by physical presence. No lexical
dexterity nor precedential profusion is
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needed to come to the realistic conclusion
that he who is under the control of the court
or is in the physical hold of an officer with
coercive power is in custody for the purpose
of Section 439. This word is of elastic
semantics but its core meaning is that the
law has taken control of the person. The
equivocatory quibblings and hide-and-seek
niceties sometimes heard in court that the
police have taken a man into informal custody
but not arrested him, have detained him for
interrogation but not taken him into formal
custody and other like terminological
dubieties are unfair evasions of the
straightforwardness of the law. We need not
dilate on this shady facet here because we
are satisfied that the accused did physically
submit before the Sessions Judge and the
jurisdiction to grant bail thus arose.
8. Custody, in the context of Section 439,
(we are not, be it noted, dealing with
anticipatory bail under Section 438) is
physical control or at least physical
presence of the accused in court coupled with
submission to the jurisdiction and orders of
the court.
9. He can be in custody not merely when
the police arrests him, produces him before a
Magistrate and gets a remand to judicial or
other custody. He can be stated to be in
judicial custody when he surrenders before
the court and submits to its directions. In
the present case, the police officers applied
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for bail before a Magistrate who refused bail
and still the accused, without surrendering
before the Magistrate, obtained an order for
stay to move the Sessions Court. This
direction of the Magistrate was wholly
irregular and maybe, enabled the accused
persons to circumvent the principle of
Section 439 CrPC. We might have taken a
serious view of such a course, indifferent to
mandatory provisions, by the subordinate
magistracy but for the fact that in the
present case the accused made up for it by
surrender before the Sessions Court. Thus,
the Sessions Court acquired jurisdiction to
consider the bail application. It could have
refused bail and remanded the accused to
custody, but, in the circumstances and for
the reasons mentioned by it, exercised its
jurisdiction in favour of grant of bail. The
High Court added to the conditions subject to
which bail was to be granted and mentioned
that the accused had submitted to the custody
of the court. We, therefore, do not proceed
to upset the order on this ground. Had the
circumstances been different we would have
demolished the order for bail. We may frankly
state that had we been left to overselves we
might not have granted bail but, sitting
under Article 136, do not feel that we should
interfere with a discretion exercised by the
two courts below.
11. We must bear in mind as has been laid down by this
Court in an unbroken catena of decisions that a judgment of
a Court is not to be read as the Euclid's Theorem shorn of
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the facts and the context in which the law has been
declared. We must immediately notice that the view was
proclaimed in Niranjan Singh (supra) in the context of the
question as to whether the Court had jurisdiction to
entertain an application under Section 439 of Cr.P.C. which
provides for power with the High Court to grant bail. The
fact that the Court had this in mind has been lucidly
expressed also as we have noticed. In other words, this
Court was not considering a case which involved the
application of Section 428 of Cr.P.C.
12. As far as Section 428 of Cr.P.C. is concerned, an
indispensable requirement to invoke Section 428 of Cr.P.C.
is that there must be a conviction. The conviction must be
followed by a sentence of imprisonment. It must be for a
term and it should not be imprisonment in default of payment
of fine. If these requirements exist, then the occasion
opens up for applying the beneficial provisions of Section
428 of Cr.P.C. However, for it to be invoked the existence
of detention undergone by the convict during investigation,
enquiry or trial in the 'same case' is indispensable. If
these requirements are satisfied, the convict would be
entitled to the set off for the period of detention which he
has undergone.
13. In this case, the applicant has not undergone any
detention in connection with the contempt case. A perusal of
the order passed by this Court would reveal that the
applicant's stood convicted by order dated 15.11.2019. The
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Court before sentencing the applicant had to cause the
production of the applicant. It so happened that the
applicant was already undergoing pre-trial custody in
connection with another case. Therefore, he had to be
produced from the custody which he was undergoing in that
case. He was produced. An affidavit was filed by him,
wherein he sought to purge himself of the contempt. The
Court was not satisfied with the case made out by the
applicant for purging. But the Court was also inclined to
give an opportunity to the applicant to attempt to purge
himself for the contempt. Since he was produced from
custody, he necessarily had to go back to custody in
connection with another case.
14. Ms. Meenakshi Arora, learned senior counsel
pointed out that at that stage what should have been done
had it been a case where he was not being sent back to
custody in another case was to enlarge him on bail in the
contempt of Court case and this circumstance should
therefore signify that he was indeed in custody from
03.02.2020. We are of the view that this circumstance, if it
is indeed correct, should not be available to the applicant
to convert what was custody which he was undergoing in
connection with another case to custody in the contempt of
Court case. In other words, we cannot understand in the
facts of this case that the custody undergone by the
applicant in connection with another case admittedly and
which had its origin and continuance all through out with
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reference to the said case as custody undergone in the
contempt of Court case.
15. We cannot, therefore, agree with the applicant
that a clarification must be issued by this Court that the
commencement of period of imprisonment should be treated as
from 03.02.2020 instead of 22.09.2022.
The miscellaneous application will stand dismissed.
Pending application(s), if any, stands disposed of.
…………………………………………J.
[K. M. JOSEPH]
…………………………………………J.
[HRISHIKESH ROY]
New Delhi
14th November, 2022