AHMED ALI Vs. SUPDT DIST JAIL TEZPUR

JUDGEMENT

(1.) This contempt petition has arisen out of the following facts. Ahmed Ali was convicted on 27-4-82 in Sessions Case No. 50(N-M) 80 vide G. R. No. 242/77 under S.302/34, I.P.C. and sentenced to R. I. for life and he was undergoing his sentence at District Jail, Nagaon from 27-4-82. He was transferred to District Jail, Tezpur on 22-12-82 vide I. G. Prison's Order dt/- 8-12-82. His Criminal Jail Appeal No. 81(J)82 was decided by the High Court on 20-11-1984 convicting him under S.324, I.P.C. (instead of S.302/34, I.P.C.) and sentencing him to undergo rigorous imprisonment for three (3) years. Ahmed Ali was already in jail for about 2 years and he was to get the set off under S.428, Cr.P.C. The High Court, it appears, sent the judgment with relevant papers in Memo No. 308/Crl. dt/- 22-1-85. Those were forwarded to the District Jail, Nowgong. It appears the Superintendent, District Jail, Nowgong forwarded a copy of the judgment in G. R. No. 242/77 and Sessions Case No. 50(N-M) of 1981 along with High Court Memo No. 308/Crl. dt/- 22-1-85 under his Memo No. 113 dt/- 25-1-85 on 2-2-85 to the Tezpur District Jail where it was received on 2-2-85. The Superintendent of the District Jail Tezpur on the same day endorsed it to the then Jailor, who in turn is stated to have endorsed it to the then Assistant Jailor and no release order or modified warrant from the Sessions Court was stated to have been received at their end. It appears the Assistant Jailor stated that he did not receive the letter and hence no immediate action was taken. Ahmed Ali was retransferred from Tezpur District Jail to Nowgong Special Jail on 17-6-85 vide I. G. Prisons Order dt/- 30-5-85, on application of the convict made in 1984, without giving effect to the High Court judgment. The copy of the High Court judgment was received at Nowgong Jail on 28-7-85. He was released on 28-7-85 from the Special Jail, Nowgong where he stayed from 17-6-85 to 28-7-85. Ahmed Ali sent an application to the then Chief Justice complaining about the delay in releasing him whereupon by order of the Chief Justice dt/-11-2-86 the contempt proceeding was started.

(2.) By order dt. 24-2-86 notice was issued to the respondent, namely, the then Superintendent of District Jail, tezpur to appear before this Court on 17th March, 1986 on which date we were told that the then Superintendent was not Shri A.K. Das but was Shri J.C. Handique. We issued notice to Shri Handique through the Inspector General of Prisons, Assam for appearance before this Court on 28th April, 1986. In obedience to this Courts Order dt. 17-3-86 Shri Handique was personally present in Court on 14-5-86 as the case was not listed on 28-4-86. Meanwhile he filed an affidavit on 29-4-86. In para 8 of his affidavit it was stated that on receipt of Memo No. 308/Crl. dt. 22-1-85 on 2-2-85 he made his endorsement on the same day. However, according to him the relevant records and other particulars as required under the provisions of the Jail Manual were not produced before him by the Jailor, Tezpur District Jail on that day or on any other day thereafter. We accordingly considered it necessary to call for an explanation from the Jailor, Tezpur Jail, who was in-charge of the matter on 2-2-85 and we required him to show cause as to why appropriate action should not be taken against him for his failure to produce the relevant records and other particulars as required under the provisions of R.546 or any other relevant rule of the Jail Manual, before the Superintendent on that day or on any other day thereafter. Notice was accordingly sent to him through the Inspector General of Prisons, Assam. The Jailor was required to be personally present in Court on 16-6-86 on which date the Jailor Shri Nilamber Dowarah was personally present in Court. So also was Shri Handique. In para 3 of his affidavit Shri Dowarah stated that a copy of the judgment of G. R. No. 242/77 and Sessions Case No. 50(N-M) of 1981 along with High Court Memo No. 308/Crl. dated 22-1-85 forwarded by the Superintendent, District Jail, Nowgong reached the office of the Tezpur district Jail and he as per the distribution of works endorsed the same to the then assistant Jailor, Shri Bikash Bijoy Das for necessary action. In para 5 it was submitted that thereafter no release order or modified warrant from the Sessions Court was received at their end and that perhaps the Assistant Jailor presuming in honest belief that he would receive release order or modified warrant, he could not proceed with further action. We accordingly wanted to know from the Assistant Jailor Shri Bikash Bijoy Das himself as to how he proceeded after the work was entrusted to him by the then Jailor. Notice was issued to him to show cause as to why appropriate action should not be taken against him for his failure to produce the relevant records and other particulars as required under the provisions of Rule 546 or any other relevant Rule of the Jail Manual, before the Superintendent, Tezpur district Jail on 2-2-85 or any other day thereafter. In his affidavit he denied the receipt of the letter endorsed by the Jailor and said that this communication was never handed over to him by the Jailor or any other officer; and that it was never shown in the Receipt Book of his office. On 15-7-86 after going through the affidavits filed by the Jailor and the Assistant Jailor, each blaming the other for the culpable delay in the release of the convict Ahmed Ali, we called for a report from the Inspector General of Prisons, Assam as to the person responsible for the aforesaid culpable delay in the release of the convict and the report was submitted. The Inspector General reported that the judgment copy of this Court was sent by the Superintendent, district Jail, Nagaon vide his letter dt. 27-1-85 and its receipt was acknowledged by Shri Kula Kamal Hazarika, Assistant Jailor, Tezpur and he handed over the letter to the Jailor, the Jailor placed the letter to the Superintendent and his initial is visible in the letter. Afterwards, the Jailor, Shri N. Dowarah endorsed the letter with his instruction to the Assistant Jailor, Shri B. B. Das to take necessary action. But Shri Dowrah had not taken any initiative to release the man then and there as ordered in the judgment of the High Court. He simply endorsed it to the Assistant Jailor of Convict Branch Shri B.B. Das. The Assistant Jailor, however, denied the fact that the letter in question was given to him by the Jailor and there was no proof to establish that the letter was really received by Shri Das. The Inspector General of Prisons also verified the receipt register but could not find any record of receipt in the said register on 2-2-85 and there was no receipt of the letter up to 12-2-85. Result was that the convict was again transferred to the Special Jail, Nowgong, without giving effect to the High Court's order. The Inspector General of Prisons has observed that Shri J.C. Handique, Executive Magistrate was a part-time officer and he could not get much time to devote himself solely for Jail Administration. But it was the duty of the Jailor who was a pretty senior officer and who was the Chief Executive Officer of the Jail as per R. 154 of Assam Jail Manual. Vol. I to guide the part-time officer, Shri Handique whenever necessary. In the report the Inspector General of Prisons has enumerated what he calls, lapses on the part of the Jailor. However, the aspect of lapses and the aspect of contempt of court are somewhat different. In his affidavit Shri J.C. Handique has tendered unqualified apology for the lapses committed unwillingly and prayed that he may be pardoned by the High Court. Shri Nilamber Dowarah, the Jailor in para 7 of his affidavit states that there was no mala fide intention on his part not to release the convict and there was no intention to disregard or disobey the Court's order and accordingly prayed that he may be apologised and excused for ends of justice. The Assistant Jailor, Shri Bikash Bijoy Das states that he was "consensus and conscious" about his duties, and the period being the earliest period of his service career, he would never have dared to ignore important matter like release of convict prisoners as per order of the High Court and that he was not guilty of any lapses.

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