Full Judgment Text
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PETITIONER:
I. MANILAL SINGH
Vs.
RESPONDENT:
DR H. BOROBABU SINGH
DATE OF JUDGMENT05/02/1993
BENCH:
SHARMA, L.M. (CJ)
BENCH:
SHARMA, L.M. (CJ)
AGRAWAL, S.C. (J)
VENKATACHALLIAH, M.N. (J)
VERMA, JAGDISH SARAN (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1994 AIR 505 1993 SCR (1) 769
1994 SCC Supl. (1) 718 JT 1993 (1) 348
1993 SCALE (1)282
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1.This matter came up for our consideration on December
8, 1992 pursuant to the order dated November 24, 1992, to
decide the appropriate order which needs to be made in the
existing situation. A brief resume of the events leading to
the present stage may first be given.
2.This Court has held that the Speaker while deciding the
question of disqualification of a Member of the Legislative
Assembly under the Tenth Schedule to the Constitution acts
as a statutory authority, in which capacity the Speaker’s
decision is subject to judicial review by the High Court and
this Court. Pursuant thereto, certain orders were made by
this Court in proceedings arising out of the order of
disqualification of certain members, made by the contemner,
Dr H. Borobabu Singh who holds the office of Speaker of the
Manipur Legislative Assembly. In spite of the clear
decision of this Court that an order made under the Tenth
Schedule by the Speaker relating to the disqualification of
a Member of the Legislative Assembly is subject to judicial
review and the Speaker while making an order under the Tenth
Schedule acts
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merely as a statutory authority amenable to the court’s
jurisdiction in that capacity, the contemner continued to
resist the implementation of such orders made by this Court.
The petitioner, 1. Manilal Singh was then the Secretary of
the Manipur Legislative Assembly. In his capacity as
Secretary of the Assembly, the petitioner, 1. Manilal Singh
took steps to implement this Court’s orders. The allegation
made by 1. Manilal Singh is that the contemner, Dr H.
Borobabu Singh got annoyed with him for his attempt to
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secure obedience and implementation of this Court’s orders
and, therefore, as an act of reprisal, the contemner has
made an order of his compulsory retirement. The petitioner,
1. Manilal Singh, therefore, challenged the order of his
compulsory retirement made by the contemner inter alia on
the ground that it was mala fide being an act of reprisal by
the contemner for the petitioner’s obedience of this Court’s
orders. This Court stayed the operation of the impugned
order of compulsory retirement of the petitioner, 1. Manilal
Singh as well as the order of his suspension passed by the
contemner. The petitioner then complained that in spite of
this Court’s orders, the contemner was not permitting him to
function as the Secretary of the Manipur Legislative
Assembly and was also not paying him his salary and other
dues; and that another person had been appointed by the
contemner to function as the Secretary.
3. On July 22, 1992, this Court made an order reiterating
that the petitioner, I.Manilal Singh shall be allowed to
function as the Secretary of the Manipur Legislative
Assembly without delay and that all concerned will enable
him to so function, and some further directions were also
given.
4.On August 4, 1992 another order was made by this Court
as a result of the grievance made by the petitioner, I.
Manilal Singh that in spite of the orders of this Court, he
was neither allowed to function as the Secretary of the
Legislative Assembly nor had he been paid his salary etc.
In that order, this Court further directed the Chief
Secretary of the State of Manipur to ensure that the
direction given for payment of dues to the petitioner was
promptly obeyed.
5.When the matter was again taken up on August 25, 1992,
the petitioner, 1. Manilal Singh stated that another order
had been made on August 19, 1992 declaring that the
petitioner is to retire from service on August 31, 1992 as
Joint Secretary which was in disobedience of this Court’s
orders, and was a further act of reprisal against him by the
contemner. Accordingly, in the order dated August 25, 1992,
this Court after recording that this action appears to be
prima facie in violation of this Court’s order, stayed the
operation of the order dated August 19, 1992. The order
after mentioning the statement made by the learned counsel
for the Chief Secretary, H.V. Goswami expressed this Court’s
concern at the apathy exhibited towards obedience of the
mandate under Article 144 of the Constitution and after
hearing all the counsel including Shri S.K. Bhattacharya,
learned counsel for the contemner, directed that the Chief
Secretary, H.V. Goswami, Deputy Secretary, Manipur
Legislative Assembly, R.K. Chinglensana Singh and Dr H.
Borobabu Singh should be personally present in Court at the
next hearing which was fixed for September 8, 1992. On
September 8, 1992 the matter was adjourned to September 9,
1992.
6.On September 9, 1992, the Chief Secretary, Manipur,
H.V. Goswami and R.K. Chinglensana Singh, Deputy Secretary,
Manipur Legislative Assembly were personally present. On
behalf of Dr H. Borobabu Singh who did not appear, a request
was made by his counsel, Shri Bhattacharya to adjourn the
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matter till after September 22, 1992 on the ground that the
Manipur Legislative Assembly was in session. The matter
was, therefore, adjourned to September 25, 1992.
7.On September 25, 1992, in spite of earlier order in the
contempt proceeding directing Dr H. Borobabu Singh to appear
in person, he did not appear. His counsel, Shri
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Bhattacharya filed an affidavit stating inter alia that Dr
H. Borobabu Singh is immune from such directions of the
Court in view of his constitutional position as Speaker.
Accordingly, Shri Bhattacharya was heard on his objection
which was found to be without substance. On September 25,
1992, the Court while rejecting the contention of Shri
Bhattacharya stated as under:
"... This is a case in which Dr Singh’s
function is not as a Speaker in the House.
The facts of the case which are on record in
this matter clearly show that Dr Singh was
acting as Authority under the Tenth Schedule
to the Constitution and in that capacity
certain orders were passed which gave rise to
the present contempt petition. In a petition
filed by the petitioner, Manilal Singh,
directions issued by this Court relating to
his service conditions which have, according
to the allegations, not been respected by Dr
Singh. In this context and background, we do
not have any doubt that the capacity in which
Dr Singh was functioning was not that of the
Speaker of the House, but as administrative
head of the Secretariat of the Legislature in
relation to the rights of one of the
employees. Accordingly, we hold that there is
no merit at all in the plea raised regarding
the jurisdiction of this Court and the
objection is, therefore, rejected.
2.We asked Mr G. Ramaswamy, learned
Attorney General to examine the matter and
indicate his opinion as to the enforceability
of the directions of this Court requiring the
personal appearance of Dr H. Borobabu Singh in
Court. On earlier occasion also, learned
Attorney General had indicated that this Court
would have been justified in taking a far
stricter view of the conduct of Dr Singh and
it is an appropriate case where it is not only
within the power of this Court, but also it
s
bounden duty to take such steps which will
reassure the people of their faith in, and
respect for the institution, now that it is
obvious that the indulgence granted so far to
Dr H. Borobabu Singh has been misplaced. Mr
Altaf Ahmed, learned Additional Solicitor
General appearing for the Union of India fully
supports the opinion and submission of learned
Attorney General.
3.Mr Kapil Sibal who represents the Chief
Secretary of Manipur also expressed his
opinion on these lines."
8.The remaining part of the order then considered the
fact that Dr H. Borobabu Singh was included as a Member of
the Indian Parliamentary delegation to attend a conference
abroad and the Court adjourned the matter to October 20,
1992 requiring the contemner, Dr H. Borobabu Singh to give a
written undertaking, before he left the country that he
would appear in the Court, and the Government of India was
required to ensure compliance with that direction. It is
sufficient to mention that the contemner, Dr H. Borobabu
Singh did not give such an undertaking in spite of the
persuasion of senior officers of the Government of India as
well as the Union Home Minister, as appears from the
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documents filed on behalf of the Government of India.
Accordingly, the Government of India did not permit the
contemner to leave the country.
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9. When the matter was taken up on October 20, 1992, the
contemner, Dr H. Borobabu Singh did not appear in spite
of the earlier direction given and the indulgence granted to
him. However, his counsel, Shri Bhattacharya prayed for a
short adjournment on the ground that he would be advising Dr
H. Borobabu Singh to file an unconditional affidavit to
appear in person in Court in pursuance to the direction of
the Court and to make a separate application for condoning
his absence and exempting him from personal appearance in
the Court. In spite of the background, we granted further
indulgence to the contemner and accepting the request of
Shri Bhattacharya adjourned the case to October 23, 1992
stating that if in addition to the unconditional affidavit
to appear personally in the Court pursuant to the direction,
a separate application, as indicated by Shri Bhattacharya,
for condoing his absence and exempting him from personal
appearance was filed by the contemner, the same would be
considered on its merits. At the request of Shri
Bhattacharya, learned counsel for Dr H. Borobabu Singh, we
again adjourned the matter to November 12, 1992 recording
his statement in the order as under:
"Mr S.K. Bhattacharya the learned counsel for
Dr H. Borobabu Singh states that he has been
instructed personally by Dr H.B. Singh to make
a statement in this Court that Dr H.B. Singh
will be filing his affidavit in the terms of
our order of the last date. We asked M
r
Bhattacharya to clarify whether our order has
been correctly understood that the affidavit
has to be filed giving an unconditional
undertaking to appear in this Court in
pursuance of a direction by this Court and the
application which Dr H.B. Singh wants to make
with a prayer for dispensing with his personal
presence will be filed separately and be not a
condition of the affidavit. He states that
the position has been correctly understood by
Dr H.B. Singh who has instructed Mr
Bhattacharya to state accordingly. Mr
Bhattacharya further states that the affidavit
could not be filed today as Dr H.B. Singh
could not come to Delhi because of the
prevailing deterioration of law and order
situation due to insurgency in the eastern
part of the country due to which he was
advised by the authorities responsible for his
security not to undertake a journey to Delhi
at this stage. He has also referred to the
partial disruption in the air services between
Manipur and Delhi. Mr Bhattacharya adds that
the affidavit shall be filed by the 5th or the
6th November, 1992."
10. When the matter was taken on November 12, 1992, the
contemner, Dr H. Borobabu Singh was again not present and
the only thing done by him in the meantime was to file an
affidavit dated November 6, 1992 indicating that he would
not personally appear before the Court. Thus, in spite of
the clear statement made by Shri Bhattacharya on
instructions of Dr H. Borobabu Singh as stated by him and
recorded in the order dated October 23, 1992, the contemner
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once again remained absent and neither filed the requisite
affidavit containing his undertaking to appear nor made any
application praying for condoning his absence and exempting
him from personal presence for cogent reasons.
11. In these circumstances, it became necessary to consider
the making of necessary consequential orders. The matter
was, therefore, adjourned to November 24, 1992 to hear the
learned Attorney General of India and all the other counsel
appearing in the case for deciding the future course of
action. On November 24, 1992, the learned Solicitor General
informed the Court that Mr
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G.Ramaswamy had resigned from the office of Attorney
General and, therefore, the matter may be adjourned to
enable his successor-in-office to assist the Court with his
arguments. The matter was, therefore, adjourned to December
8, 1992.
12.On December 8, 1992 we have heard the learned Attorney
General of India, the Solicitor General, on behalf of Union
of India, Shri Kapil Sibal, learned counsel for the Chief
Secretary of the State of Manipur, Shri S.K. Bhattacharya,
learned counsel for the contemner, Dr H. Borobabu Singh and
learned counsel for the petitioner.
13.It may be mentioned that the contemner, Dr H. Borobabu
Singh has filed affidavits, the last being of December 7,
1992 making it amply clear repeatedly that he would not obey
the orders of this Court directing his personal presence in
the contempt matter nor would he make any application for
condoning his absence and exempting him from personal
presence for any cogent reasons. The only reason indicated
in the affidavit filed by Dr H. Borobabu Singh and also
reiterated by his counsel, Shri S.K. Bhattacharya is that by
virtue of the office of Speaker of the Manipur Legislative
Assembly held by Dr H. Borobabu Singh, he is immune from the
process of this Court even in a contempt proceeding where
the direction for his personal presence has been given as a
result of prima facie opinion formed by the Court that he
has wilfully disobeyed the orders of this Court in a
capacity which does not relate to his functions as Speaker
inside the House and has further deferred certain persons
including the Chief Secretary of the State and Officers of
the Assembly Secretariat from acting in aid of this Court’s
directions/orders in addition to taking administrative
action against the petitioner, 1. Manilal Singh, Secretary
of the Manipur Legislative Assembly as an act of reprisal
for his acting in aid of this Court’s orders. This stand
has been taken and continues to be persisted in, in spite of
the contention being considered and rejected expressly on
merits including in the order dated September 25, 1992. The
question, therefore, is of the action to be taken and the
kind of order which it would be appropriate to make in these
circumstances for implementation of this Court’s orders, to
uphold the majesty of law for preservation of the ’rule of
law’.
14.The learned Attorney General submitted that the
undisputed facts and the unequivocal stand taken by the
contemner, Dr H. Borobabu Singh leave no doubt about his
wilful and contumacious disregard and disobedience of this
Court’s orders which is without any doubt by itself
sufficient to constitute criminal contempt of this Court.
The learned Attorney General submitted that apart from the
power which this Court has under the Contempt of Courts Act,
1971 and the rules framed thereunder, the power of this
Court under several provisions of the Constitution of India
is wide enough to indicate that the procedure available to
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it for ensuring compliance with its orders directing the
personal presence of the contemner, Dr H. Borobabu Singh are
not confined merely to the provisions in the Contempt of
Courts Act and the rules framed thereunder. The learned
Attorney General added that all steps considered necessary
to ensure compliance with this Court’s orders requiring the
personal presence in this Court of the contemner, Dr H.
Borobabu Singh, are available to this Court which has a
constitutional obligation to uphold the rule of law. He
submitted that the stage has now reached when this step can
no longer be avoided due to the continuing contemptuous
conduct of the contemner in
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persistently refusing to obey this Court’s orders requiring
his personal presence in this contempt matter. The learned
Attorney General added that this Court also has the power to
direct the Government of India to take the necessary steps
to produce the contemner, Dr H. Borobabu Singh in this Court
if the ordinary course of requiring a Magistrate to produce
him in the Court is considered inappropriate in the present
case. The learned Solicitor General of India on behalf of
the Government of India supported the submissions of the
learned Attorney General of India and assured us that in
case the Court considered it necessary to direct the
Government of India to take the necessary steps to produce
the contemner, Dr H. Borobabu Singh, that direction would be
duly and promptly complied with. Shri Kapil Sibal on behalf
of the Chief Secretary of the State of Manipur also
supported the submission and so did the counsel for the
petitioner, 1. Manilal Singh. Shri S.K. Bhattacharya,
learned counsel for the contemner, Dr H. Borobabu Singh
reiterated the stand taken by the contemner that by virtue
of the office of the Speaker which he holds, he is immune
from the Court’s process even in a contempt matter like this
which does not relate to his function as Speaker inside the
House.
15.The undisputed facts expose the conduct of the
contemner, Dr H. Borobabu Singh, evident from the statement
contained in his affidavits filed in this Court refusing to
obey the orders of this Court directing him to appear in
person in this Court to enable the hearing of the contempt
proceedings against him, after the tentative opinion formed
by this Court that his wilful and contemptuous violation of
this Court’s orders and deliberate obstruction of the
persons acting in the aid of this Court’s orders coupled
with his act of reprisal against the Secretary of the
Legislative Assembly for obeying the orders made by this
Court make out a prima facie case of ’criminal contempt’,
was recorded in the orders made in the presence of his
counsel and known to him. The contemner had refused to
accept the notices sent to him directly but continued to be
represented by counsel, Shri S.K. Bhattacharya through whom
he communicated with the Court, in addition to filing some
of his own affidavits to clearly indicate his refusal to
appear in Court. The only reason given by him, through
counsel and in his affidavits is, that he being Speaker of a
Legislative Assembly, is immune from process of court even
in such a proceeding.
16.The present situation arises as a result of repeated
and emphatic refusal of the contemner to appear in person in
this Court after due notice of the fact that his presence is
required before the Court on the date fixed for the hearing
of the contempt proceeding to answer this charge of criminal
contempt committed by him by acts done which were not
performed as a Speaker within the House.
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17.Reference may now be made to some provisions of law
applicable to the situation as indicated by the learned
Attorney General and the other counsel supporting his
submissions.
18.’The Rules to Regulate Proceedings for Contempt of the
Supreme Court, 1975’ framed by this Court provide in Rule 3
that the Court may take action even suo motu in such a
matter. Rule 6 requires the contemner, unless otherwise
ordered, to appear in person before the Court as directed on
the date fixed for hearing of the proceeding and to continue
to remain present during hearing till the proceeding is
finally disposed of by order of the Court. Rule 10 provides
that the Court may direct the Attorney General or the
Solicitor General to appear and assist the Court. It is in
this manner that the Attorney General was
726
directed to appear and assist the Court while the Solicitor
General appeared in this matter for the Union of India.
Rule 11 provides that the Court may, if it has reason to
believe, that the person charged is absconding or is
otherwise evading service of notice, or if he fails to
appear in person or to continue to remain present in person
in pursuance of the directions, direct a warrant bailable or
non-bailable for his arrest, addressed to one or more police
officers and the warrant shall be executed by the officer or
officers to whom it is directed. These Rules therefore,
provide for procuring the personal appearance of the
contemner in this Court if the Court has reason to believe
that the contemner is evading service or he fails to appear
in person in spite of the directions of this Court. In the
present case, the contemner’s repeated and categorical
refusal to appear in this Court in spite of this Court’s
orders and grant of considerable indulgence to him till now
is clear from the statements made in his affidavits and
through his counsel, who has appeared for him throughout.
19.The learned Attorney General, the learned Solicitor
General and Shri Kapil Sibal are right in their submission
that the power of this Court in such matters is not confined
merely to the provisions of the Contempt of Courts Act, 1971
and the rules framed thereunder but is plenary to punish any
person for Contempt of court, and for that purpose to
require his presence in person in this Court in the manner
considered appropriate in the facts of the case. They refer
particularly to Articles 129 and 142 apart from Article 145
of the Constitution of India.
20.Article 129 says that the Supreme Court shall be a
court of record and shall have all the powers of such a
court including the power to punish for contempt of itself.
21.Article 142 provides for enforcement of decrees and
orders of Supreme Court and lays down that the Supreme Court
shall have all and every power to make any order for the
purpose of securing the attendance of any person, the
discovery or production of any documents, or the
investigation or punishment of any contempt of itself.
Article 141 declares the binding effect of the law declared
by the Supreme Court which is a clear provision to indicate
that the meaning of ’law’ is to be understood as declared by
the Supreme Court. Obviously, it is not for anyone else
including the Speaker to decide what the ’law’ is, and make
an interpretation of the ’law’ contrary to the declaration
of law made by the Supreme Court. Article 144 contains the
constitutional obligation of all authorities in the
territory of India to act in aid of the Supreme Court.
These provisions are well known and they are mentioned in
this order once again in the present case merely for the
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benefit of the contemner who has wilfully and deliberately
refused to obey and ignored not merely the orders of this
Court but has also chosen to ignore the provisions in the
Constitution itself, to which he must have sworn allegiance
before taking his seat as a Member of the Manipur
Legislative Assembly.
22.The contention of the contemner’s immunity from the
process of this Court even in a contempt proceeding, wherein
a prima facie case of criminal contempt is made out against
him, requiring his personal presence to answer that charge
and to be present at the hearing, hinted by the contemner in
his affidavits and raised by his counsel is totally
misconceived, and this was indicated to his counsel
repeatedly. The immunity given by Article 361 of the
Constitution is not to a Speaker and no other provision
supports this submission.
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23.From the documents filed by the Union of India, it is
evident that even the Union Home Minister has strongly
advised the contemner to desist from the course he has
chosen to adopt and to obey the orders of this Court, which
is his constitutional obligation. The present Attorney
General as well as his predecessor-in-office and the
Solicitor General have also categorically and repeatedly
expressed their opinion that it is the duty of the contemner
to obey the orders of this Court and appear in this Court in
person as directed. Shri Kapil Sibal who appears for the
Chief Secretary of the State of Manipur has also expressed
the same view in his submissions.
24.After hearing learned counsel at length on December 8,
1992 we had reserved the order for further reflection. On
further and in-depth consideration of this matter on account
of the fact that the contemner also happens to occupy the
office of Speaker of a Legislative Assembly, we find that
there is no escape from the obvious and logical conclusion
emerging from the submissions made by the learned Attorney
General of India and endorsed by the learned Solicitor
General of India and Shri Kapil Sibal. While we reach this
unfortunate decision in discharge of our constitutional
obligation, we draw some solace from the fact that this
situation is the creation of the contemner, Dr H. Borobabu
Singh himself who continues to persist in his contumacy by
repeatedly declaring that he would not obey the orders of
this Court directing his personal appearance to participate
in the contempt proceedings against him. It is unfortunate
that a person who holds the constitutional office of Speaker
of a Legislative Assembly has chosen to ignore the
constitutional mandate that this country is governed by the
’rule of law’ and what the law is, is for this Court to
declare in discharge of its constitutional obligation which
binds all in accordance with Article 141 of the Constitution
of India and Article 144 then says that all authorities are
to act in aid of the orders made by this Court. The
contemner has chosen to ignore also the obvious corollary of
rule of law that no person is above law. Having done our
best to make the contemner see reason and be present by
granting him indulgence repeatedly to the extent that the
learned Attorney General of India at one of the earlier
stages said that our indulgence and leniency was being
construed as the weakness of the Court, we are constrained
to now take the only appropriate and logical course to which
the Court is driven in these circumstances. That obvious
course is to require the production of the contemner, Dr H.
Borobabu Singh in person before this Court, giving such a
direction to the authority considered to be appropriate, in
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the circumstances of the case, to ensure compliance with
this order.
25.It is our constitutional duty which requires us to make
this order, to uphold the majesty of law and justify the
confidence of the people, that no one in this country is
above the law and governance is not of men but of the ’rule
of law’. It is unfortunate that this action has to be taken
against a person who happens to be the Speaker of a
Legislative Assembly, but that does not permit us to apply
the law differently to him when he has wilfully and
contumaciously driven the Court to this course. We must
remind ourselves that the ’rule of law’ permits no one to
claim to be above the law and it means ’be you ever so high
the law is above you’. It was said long back : ’to seek to
be wiser than the laws, is forbidden by the law’.
26.We are also of the opinion that the issuance of a
direction to any Magistrate to produce the contemner in this
Court would be merely an exercise
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in futility in view of the obvious conduct of the contemner
which includes the threat even to the Chief Secretary of the
State as indicated by him. The learned Solicitor General of
India appearing for the Union of India submitted that in
case it is considered appropriate to issue such a direction
to the Government of India, necessary action in this behalf
would be taken by the Government of India to comply with the
order. We have no doubt that in the existing situation to
which this Court has been driven by the wilful and
contumacious conduct of the contemner himself, the only
appropriate order to make is to direct the Government of
India to produce the contemner, Dr H. Borobabu Singh in
person in this Court on the next date of hearing, taking
such steps as are necessary for the purpose. We direct,
accordingly. It is further clarified that the Government of
India would be entitled to take all such steps, which are
necessary including the use of minimum force which may be
required, for compliance with this Court’s order directing
the production of the contemner in this Court. A copy of
this order be sent forthwith by the Registrar (Judicial) to
the Home Secretary, Government of India for prompt
compliance. The next date of hearing is fixed for March 23,
1993 on which date the Government of India must produce the
contemner, Dr H. Borobabu Singh before this Court.
27. List on March 23, 1993.+
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