MR. VINAY PRAKASH SINGH versus SAMEER GEHLAUT & ORS. IN THE MATTER OF:- SHIVINDER MOHAN SINGH on 14 November 2022

660

SUPREME COURT REPORTS

[2022] 8 S.C.R.

A

MR. VINAY PRAKASH SINGH

v.

SAMEER GEHLAUT & ORS.

IN THE MATTER OF:-

B

SHIVINDER MOHAN SINGH

(Miscellaneous Application No.1902 of 2022)

With

(I.A. No.157792/2022 )

C

In

(Contempt Petition (Civil) No.2120 of 2018)

In

(Special Leave Petition (Civil) No.20417 of 2017)

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NOVEMBER 14, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Code of Criminal Procedure, 1973 – s.428 – Period ofdetention undergone to be set off against the sentence orEimprisonment – When – Applicant was found guilty of contempt byorder dtd.15.11.19, was sentenced for 6 months imprisonment byorder dtd.22.09.22 – Present application seeks clarification w.r.tthe date of commencement of the term of imprisonment, which asper the applicant should be from 03.02.20 instead of 22.09.22, ashe has been in custody since then though in another case – Held:FApplicant stood convicted by order dtd.15.11.19 – The Court beforesentencing had to cause the production of the applicant – Applicantwas already undergoing pre-trial custody in connection with anothercase – Therefore, he had to be produced from the custody which hewas undergoing in that case – He was produced– Merely becauseGSupreme Court after convicting the applicant by order dtd.15.11.19caused the production of the applicant before it for the impositionof an appropriate sentence, it cannot be said that the applicantwould be in custody – An indispensable requirement to invoke s.428is that there must be a conviction followed by a sentence ofimprisonment for a term and it should not be imprisonment in defaultH

of payment of fine – Detention undergone by the convict duringinvestigation, enquiry or trial must be in the ‘same case’ – In thepresent case, the applicant has not undergone any detention inconnection with the contempt case – Custody undergone by theapplicant admittedly in connection with another case cannot beunderstood as custody undergone in the contempt of Court case –No clarification as sought, can be issued.

Judgments/Orders – Interpretation of – Held: A judgment ofa Court is not to be read shorn of the facts and the context in whichthe law has been declared.

Dismissing the application, the Court

HELD: 1.1 Section 428 of Cr.P.C. on which the applicantlays considerable store by, actually contemplates the presenceof two circumstances. During the stage of investigation, inquiryor trial of a particular case the prisoner should have been in jailat least for a certain period. The second requisite is that he shouldhave been sentenced to a term of imprisonment in that case. Inthe facts of this case, the applicant was in custody admittedly inconnection with another case on 15.11.2019 as also on 03.02.2020and also on 16.03.2020. For the mere reason that this Court afterconvicting the applicant by order dated 15.11.2019 caused theproduction of the applicant before this Court for the purpose ofconsidering the imposition of an appropriate sentence, it cannotbe said that the applicant would be in custody. In this regard it isnoticed that in the order dated 15.11.2019, the Courtcontemplated a chance being afforded to the applicant to purgehimself of the contempt. [Para 9][666-G-H; 667-A-C]

State of Maharashtra and Another versus Najakat AliaMubarak Ali (2001) 6 SCC 311 : [2001] 3 SCR 600 –referred to.

1.2 A judgment of a Court is not to be read as the Euclid’sTheorem shorn of the facts and the context in which the law hasbeen declared. [Para 11][668-F-G]

Niranjan Singh and Another Versus Prabhakar RajaramKharote and Others (1980) 2 SCC 559: [1980] 3 SCR15 – distinguished.

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A1.3 An indispensable requirement to invoke Section 428 ofCr.P.C. is that there must be a conviction. The conviction mustbe followed by a sentence of imprisonment. It must be for a termand it should not be imprisonment in default of payment of fine. Ifthese requirements exist, then the occasion opens up for applyingthe beneficial provisions of Section 428 of Cr.P.C. However, forBit to be invoked the existence of detention undergone by theconvict during investigation, enquiry or trial in the ‘same case’ isindispensable. If these requirements are satisfied, the convictwould be entitled to the set off for the period of detention whichhe has undergone. In this case, the applicant has not undergoneCany detention in connection with the contempt case. A perusal ofthe order passed by this Court would reveal that the applicantstood convicted by order dated 15.11.2019. The Court beforesentencing the applicant had to cause the production of theapplicant. It so happened that the applicant was already undergoing pre-trial custody in connection with another case. Therefore, heDhad to be produced from the custody which he was undergoing inthat case. He was produced. An affidavit was filed by him, whereinhe sought to purge himself of the contempt. The Court was notsatisfied with the case made out by the applicant for purging. Butthe Court was also inclined to give an opportunity to the applicant Eto attempt to purge himself for the contempt. Since he wasproduced from custody, he necessarily had to go back to custodyin connection with another case. In the facts of this case thecustody undergone by the applicant in connection with anothercase admittedly and which had its origin and continuance allthrough out with reference to the said case cannot be understoodFas custody undergone in the contempt of Court case. [Paras 12-14][669-A-H]

Case Law Reference

[2001] 3 SCR 600referred toPara 7

G[1980] 3 SCR 15distinguishedPara 7CIVIL APPELLATE JURISDICTION : MiscellaneousApplication No.1902 of 2022

With

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Intelocutory Application No.157792 of 2022. In Contempt Petiton(Civil) No.2120 of 2018. In Special Leave Petiton (Civil) No.20417 Of2017

From the Judgment and Order dated 22.09.2022 of this Hon’bleCourt in the Contempt Petition No.2120 of 2018 in SLP (C) No.20417of 2017.

Ms. Meenakshi Arora, Sr. Adv., Aditya Dewan, Abhinav Agrawal,Rohan Thawani, Advs. for the Petitioner.

Rajiv Dutta, Sr. Adv., Amit Mishra, Ms. Devna Arora, Ms.Samridhi Hota, Varad Choudhary, Ms. Astha Ahuja, Ms. Gauri Goburdhan,Kunal Chatterji, Advs. for the Non-Applicant.

Mahesh Agarwal, Ankur Saigal, Himanshu Satija, Nishant Rao,Ms. Mansi Taneja, E. C. Agrawala, Ms. B. Vijayalakshmi Menon, VivekJain, M/s. Karanjawala & Co., Hardeep Singh Anand, Faisal Sherwani,Advs. for the Respondents.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. This Miscellaneous application No.1902 of 2022 is filed inContempt Petition (Civil) No.2120/2018 in SLP (Civil) No.20417/2017.The applicant in this application is contemnor No.10 (Dr. ShivinderMohan Singh). The contempt petition culminated in an order dated15th November, 2019. We need only refer to the record of proceedingsdated 15th November, 2019 which indicates how the matter was dealtwith by the Court.

“ii) Malvinder Mohan Singh, Director of Oscar InvestmentsLimited and Diretor of RHC Holding Private Limited (ContemnorNos.9 and 12) and Shivinder Mohan Singh, Director of OscarInvestments Limited and Director of RHC Holding Private Limited(Contemnor Nos.10 and 13) have knowingly and willfully violatedthe orders of this Court dated 11.08.2017, 31.08.2017 and15.02.2018 as continued on 23.02.2018. Therefore, we hold bothof them guilty of committing Contempt of this Court. We give onechance to them to purge themselves of the contempt. We, directthat in case each of the contemnors deposits a sum of Rs.1170.95crores in this Court within eight weeks from today then we mayconsider dealing with them in a lenient manner, while imposingsentence.”

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A2. Thereafter, we may notice direction No.2, from the order dated03.02.2020, which is as follows:- “Direction No.2:

Both contemnors Malvinder Mohan Singh and Shivinder MohanSingh are present in Court and they have been brought from judicialcustody as they are in jail in respect of some other case. On theoral request made by learned Counsel for Malvinder Mohan Singhand Shivinder Mohan Singh, we direct Naresh Kumar, ASI whohas brought them to this Court to ensure that both the detenus arepermitted to meet their family members till 2.00 P.M., within theSupreme Court premises.

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Shivinder Mohan Singh has filed an affidavit. We are not fullysatisfied with the same. Ms. Meenakshi Arora, learned SeniorCounsel, prays for some time to file a more detailed affidavit.Malvinder Mohan Singh and Shivinder Mohan Singh are directedto file fresh proposals as to how they want to purge themselves ofthe contempt. They may file an appropriate application as to howthey would like to discharge their liability which is the subject-matter of the contempt petition, positively by 05.03.2020 withadvance copies to all the parties and the matter be listed beforethe Court on 16.03.2020.

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We also direct the jail authorities to ensure that MalvinderMohan 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 tomeet Mr. Vivek Jain, Adv. 606-B, Adiswar Apartments, 34,Ferozshah Road, New Delhi – 110 001 for four hours on twooccasions between this period and they will escort them to theoffices of the counsel.”

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3. Thereafter the matter came to be finally disposed of by orderdated 22.09.2022. We need only notice the following part:- G“30. In the premises, we pass the following directions:

(a) Contemnor Nos. 9 and 10 are sentenced to suffersix months imprisonment and pay fine in the sum of Rs.5,000/- each within four weeks from today. In case of default ofpayment of fine, the contemnors shall undergo furtherimprisonment of two months.”

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4. The present application has been filed on the following basis. Itis, inter alia,stated that the applicant was already in the custody of thisCourt in the Contempt Petition (Civil) No.2120 of 2018 from 03.02.2020itself when he was brought from Jail No.7, Tihar Jail, New Delhi to thisCourt. It is further stated that the applicant had never applied for bailafter 03.02.2020 and he thus has been in continuous custody of thisCourt. Thereafter the cause for moving the present application has beenset out which is as follows:

“That the Applicant is now constrained to move the presentapplication for clarification as Paragraph 30 (a) of the Order dated22.09.2022 does not specify the date of commencement of theterm of imprisonment of 6 (six) months. Pertinently, the authoritiesin the Tihar Jails, New Delhi have taken a position that theApplicant’s term of imprisonment of 6 (six) months shallcommence from the date of the Order dated 22.09.2022, giventhat the Order dated 22.09.2022 is silent regarding the date ofcommencement 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 clarificationin respect of Paragraph 30(a) of the Order dated 22.09.2022 inContempt Petition No.2120 of 2018 to the effect that the term ofimprisonment of 6 (Six) months shall be deemed to havecommenced from 03.02.2020 instead of 22.09.2022.”

6. We heard Ms. Meenakshi Arora, learned senior counselappearing on behalf of the applicant and Mr. Rajiv Dutta, learned seniorcounsel appearing on behalf of the non-applicant/Ms. Daiichi SankyoCompany Limited. Ms. Meenakshi Arora, learned senior counselappearing on behalf of the applicant would point out that it is evidentfrom the narration of facts which we have already made that the applicantmust be treated as being in custody from 03.02.2020. The applicantstood sentenced finally for a period of six months. The applicant hasalready spent more than 30 months in custody if the beginning of theperiod is determined as 03.02.2020. It is also contended that the applicantwas produced again on 16.03.2020. It is further contended that theapplicant was not released on bail. Therefore, the applicant must betreated as being in custody. In this connection, she bolsters her contentions A

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Awith 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 setoff against the sentence or imprisonment.- Where an accusedperson has, on conviction, been sentenced to imprisonment for aBterm [not being imprisonment in default of payment of fine], theperiod of detention, if any, undergone by him during the investigation,inquiry or trial of the same case and before the date of suchconviction, shall be set off against the term of imprisonmentimposed on him on such conviction, and the liability of such personto undergo imprisonment on such conviction shall be restricted toCthe remainder, if any, of the term of imprisonment imposed onhim.”

7. She has also relied upon the judgment of this Court reported in(2001) 6 SCC 311, State of Maharashtra and Another versus NajakatAlia Mubarak Ali. Still further, she would contend that this Court hasDtaken the view that a person can be said to be in custody when hesurrenders before the Court. [See in (1980) 2 SCC 559, Niranjan Singhand Another Versus Prabhakar Rajaram Kharote and Others. Shewould therefore conclude by contending that in the interest of justicealso this is a case which requires that this Court clarifies that the periodEof custody as undergone from 03.02.2020 should be reckoned andtherefore in view of the period of imprisonment actually imposed on22.09.2022, no further custody is required in connection with the case.

8. Per contra, Mr. Rajiv Dutta, learned senior counsel for thenon-applicant would point out that when the applicant was producedFbefore 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 topurge himself of the contempt which is self evident from the perusal ofthe proceedings.

9. We find no merit in the contentions of the applicant. TheGfollowing are the reasons. Section 428 of Cr.P.C. on which the applicantlays considerable store by, actually contemplates the presence of twocircumstances. They have been highlighted in the very judgment whichthe applicant relies on, namely (2001) 6 SCC 311, State of Maharashtraand Another versus Najakat Alia Mubarak Ali. During the stage ofinvestigation, inquiry or trial of a particular case the prisoner should haveH

been in jail at least for a certain period. The second requisite is that heshould have been sentenced to a term of imprisonment in that case. Inthe facts of this case, the applicant was in custody admittedly inconnection with another case on 15.11.2019 as also on 03.02.2020 andalso on 16.03.2020. For the mere reason that this Court after convictingthe applicant by order dated 15.11.2019 caused the production of theapplicant before this Court for the purpose of considering the impositionof an appropriate sentence, it cannot be said that the applicant would bein 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 purgehimself of the contempt.

10. At this juncture, it may be apposite that we deal with theargument based on the judgment of this Court in (1980) 2 SCC 559,Niranjan Singh and Another Versus Prabhakar Rajaram Kharoteand Others. Therein we may notice the following statements whichread as follows:- “7. When is a person in custody, within the meaning of Section439 CrPC? When he is in duress either because he is held by theinvestigating agency or other police or allied authority or is underthe control of the court having been remanded by judicial order, orhaving offered himself to the court’s jurisdiction and submitted toits orders by physical presence. No lexical dexterity norprecedential profusion is needed to come to the realistic conclusionthat he who is under the control of the court or is in the physicalhold of an officer with coercive power is in custody for the purposeof Section 439. This word is of elastic semantics but its coremeaning is that the law has taken control of the person. Theequivocatory quibblings and hide-and-seek niceties sometimesheard in court that the police have taken a man into informal custodybut not arrested him, have detained him for interrogation but nottaken him into formal custody and other like terminological dubietiesare unfair evasions of the straightforwardness of the law. Weneed not dilate on this shady facet here because we are satisfiedthat the accused did physically submit before the Sessions Judgeand 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 AB

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or at least physical presence of the accused in court coupled withsubmission to the jurisdiction and orders of the court.

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9. He can be in custody not merely when the police arrests him,produces him before a Magistrate and gets a remand to judicial orother custody. He can be stated to be in judicial custody when heBsurrenders before the court and submits to its directions. In thepresent case, the police officers applied for bail before a Magistratewho refused bail and still the accused, without surrendering beforethe Magistrate, obtained an order for stay to move the SessionsCourt. This direction of the Magistrate was wholly irregular andCmaybe, enabled the accused persons to circumvent the principleof Section 439 CrPC. We might have taken a serious view ofsuch a course, indifferent to mandatory provisions, by thesubordinate magistracy but for the fact that in the present casethe accused made up for it by surrender before the Sessions Court.Thus, the Sessions Court acquired jurisdiction to consider the bailDapplication. It could have refused bail and remanded the accusedto custody, but, in the circumstances and for the reasons mentionedby it, exercised its jurisdiction in favour of grant of bail. The HighCourt added to the conditions subject to which bail was to begranted and mentioned that the accused had submitted to theEcustody of the court. We, therefore, do not proceed to upset theorder on this ground. Had the circumstances been different wewould have demolished the order for bail. We may frankly statethat had we been left to overselves we might not have grantedbail but, sitting under Article 136, do not feel that we should interferewith a discretion exercised by the two courts below.

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11. We must bear in mind as has been laid down by this Court inan unbroken catena of decisions that a judgment of a Court is not to beread as the Euclid’s Theorem shorn of the facts and the context inwhich the law has been declared. We must immediately notice that theview was proclaimed in Niranjan Singh (supra) in the context of theGquestion as to whether the Court had jurisdiction to entertain anapplication under Section 439 of Cr.P.C. which provides for power withthe High Court to grant bail. The fact that the Court had this in mind hasbeen lucidly expressed also as we have noticed. In other words, thisCourt was not considering a case which involved the application of Section428 of Cr.P.C.H

12. As far as Section 428 of Cr.P.C. is concerned, an indispensablerequirement to invoke Section 428 of Cr.P.C. is that there must be aconviction. The conviction must be followed by a sentence ofimprisonment. It must be for a term and it should not be imprisonment indefault of payment of fine. If these requirements exist, then the occasionopens up for applying the beneficial provisions of Section 428 of Cr.P.C.However, for it to be invoked the existence of detention undergone bythe convict during investigation, enquiry or trial in the ‘same case’ isindispensable. If these requirements are satisfied, the convict would beentitled to the set off for the period of detention which he has undergone.

13. In this case, the applicant has not undergone any detention inconnection with the contempt case. A perusal of the order passed bythis Court would reveal that the applicant’s stood convicted by orderdated 15.11.2019. The Court before sentencing the applicant had to causethe production of the applicant. It so happened that the applicant wasalready undergoing pre-trial custody in connection with another case.Therefore, he had to be produced from the custody which he wasundergoing in that case. He was produced. An affidavit was filed byhim, wherein he sought to purge himself of the contempt. The Courtwas 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 toattempt to purge himself for the contempt. Since he was produced fromcustody, he necessarily had to go back to custody in connection withanother case.

14. Ms. Meenakshi Arora, learned senior counsel pointed out thatat that stage what should have been done had it been a case where hewas not being sent back to custody in another case was to enlarge himon bail in the contempt of Court case and this circumstance shouldtherefore signify that he was indeed in custody from 03.02.2020. Weare of the view that this circumstance, if it is indeed correct, should notbe available to the applicant to convert what was custody which he wasundergoing in connection with another case to custody in the contemptof Court case. In other words, we cannot understand in the facts of thiscase that the custody undergone by the applicant in connection withanother case admittedly and which had its origin and continuance allthrough out with reference to the said case as custody undergone in thecontempt of Court case.

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670SUPREME COURT REPORTS

[2022] 8 S.C.R.

A15. We cannot, therefore, agree with the applicant that aclarification must be issued by this Court that the commencement ofperiod of imprisonment should be treated as from 03.02.2020 instead of22.09.2022.

The miscellaneous application will stand dismissed.B

Pending application(s), if any, stands disposed of.

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Divya PandeyMiscellaneous application dismissed.

(Assisted by : Deepak Panwar, LCRA)

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