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Contempt of court a new low for CBI

THE CBI has recently been in the news mostly for the wrong reasons, with the allegations embroiling not only its Directors, but also the Central Vigilance Commission and the Union government.

Contempt of court a new low for CBI

Controversial: The transfer of the CBI’s investigating officer in the Muzaffarpur shelter home case kicked up a row.



Rajeev Dhavan
Senior advocate, Supreme Court 

THE CBI has recently been in the news mostly for the wrong reasons, with the allegations embroiling not only its Directors, but also the Central Vigilance Commission and the Union government. In the latest embarrassment, two of the premier investigating agency’s high-ranking officers, former interim Director K Nageswara Rao and additional legal division incharge of prosecution Bhasuran S were punished for contempt of court by the Supreme Court. 

The case pertained to the alleged sexual abuse of inmates of a children’s shelter home in Muzaffarpur. Dissatisfied with the Bihar Police’s investigation, the apex court had transferred the case to the CBI on November 27, 2018. The next day, following the earlier orders of August 29, 31 and September 18, the Supreme Court affirmed that the CBI’s probe officer in this case “will not be transferred without the leave of the court”. 

However, on January 17, after the approval of the Appointments Committee of the Cabinet (ACC), investigating officer AK Sharma (Joint Director) was transferred as Additional Director General of the CRPF. This was in violation of the court’s order. No permission was taken from the court, which was informed of the development in a status report on January 31. The file had a note (dated January 18) by Bhasuran that since AK Sharma had been ‘beneficially’ promoted to the rank of DGP, “there was no legal impediment to relieve the officer”, but these facts be brought to the ‘notice’ of the Supreme Court for approval. Rao issued the relieving order the same day. How can prior permission of the SC be substituted with ex post facto approval after the event? The whole purpose of the SC’s order was defeated. Contempt notices were issued. The officers apologised and admitted to contempt of court. The Attorney General emphasised that since this was civil contempt, it suggested that there was no wilful default. 

An unconditional apology is a time-honoured escape route, sharpened by Section 12 of the Contempt of Courts Act, 1971, which says that a conditional apology may be acceptable if it’s bona fide. It could not be said that the transgression was not wilful or they knew of the order because it was in the file with the note. So, it was a case of ‘mercy’. It follows that the apology was not bona fide. This was incorporated in the sentence — to remain in the court till its rising and a fine of Rs 1 lakh (which the officers could afford).

Due process is needed with regard to the ‘rising of the court’ sentence. Some High Courts have put the contemnors in custody without handcuffs or sent them to sit in the Registrar’s room with implied access to rest rooms, water, tea, refreshments etc. In this case, they were asked to sit in a corner. I saw that they did not have food. They just sat there in public obloquy. When the Attorney General asked the court after lunch if they could go home, the Chief Justice of India said the court hadn’t risen, so they must stay.

There are some cases of constructive contempt by the media or by way of comment which is criminal contempt, raising issues of free speech. But this was a civil contempt case of wilfully disobeying an order of the court. If a court cannot enforce its orders, then its writs and orders will be futile. It is not enough that all civil and judicial authorities must “act in aid” of the Supreme Court (Article 144). In its expansive version, this might embolden policemen, magistrates or ministers to take matters into their own hands. Hence, the contempt proceedings. But in civil contempt, there is the yes/no answer, apart from the three defences of not knowing, not wilful and bona fide apology. These usually work, with or without strictures against the disobedient person. I don’t think this was civil contempt (disobeying an order addressed to you), because it was not addressed to a particular officer. It could be one of abetment or criminal contempt for obstructing justice.

Since the draft order was prepared by the Department of Personnel and Training (DoPT) and affirmed by the ACC, were the DoPT officers and those servicing them or the committee not abettors? After all, the contemptuous officers were obeying their respondent superiors. The court should have ordered a high-level investigation into who was responsible for ordering the officer’s transfer by drafting the order eventually passed, with the paper trail leading to the Cabinet Committee.

Officers obey the courts because strictures or punishment by the judiciary could ruin their career. That is why officers do not want such a blot on their file. In some cases, simple strictures are enough. Perhaps, that may have been enough in this case also.

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