- (1.)THIS is an application on behalf of the petitioner for initiating contempt proceedings against the respondent the Superintendent. Central Jail, Jammu.
(2.)THE petitioner has averred that he was convicted by the Sessions Judge, Udhampur on 29th of April, 1'974 and was sentenced to various terms of imprisonment under Secions 397, 394 and 392 E. P. C. Sentences were ordered to run concurrently. On appeal the petitioner's conviction was altered to Section 324, R. P. C. and sentence was reduced to 3 years' rigorous imprisonment. According to the petitioner he was arrested on 26th of June, 1973, and he remained under-trial prisoner from 26th June, 1973 to 29th of April, 1974, when he was convicted. The grievance of the petitioner is that he approached the respondent for giving him the benefit of Section 397-A of the Code of Criminal Procedure according to which the period of detention undergone by the accused during the investigation, inquiry or trial of the same case is to be set off against the terms of imprisonment that was imposed on him. But the respondent refused to afford benefit of this Section to the petitioner who, thereupon, approached the High Court by means of Criminal Miscellaneous Application No. 28 of 1976. This application was disposed of by this Court on 21-5-1976 in which the Advocate-General conceded that Section 397-A Cr. P. C. had retrospective operation. It was however, indicated that the respondent had no record of petitioner's pre-conviction detention and so the counsel for the petitioner submitted an application in order to make an appropriate application to the respondent for allowing his client the benefit of Section 397-A of the Code of Criminal Procedure by supporting his application with the necessary data. But in spite of that the respondent has refused to release the petitioner as, according to him, necessary clarification allowing the benefit of the provisions of Section 397-A either from the retrospective date or after the date of the issue of the amendment was not received by him from the concerned departments. The petitioner has submitted that there was no need of any clarification in view of the pronouncement of their Lordships of the Supreme Court on the subject that the section has got retrospective operation. The act of the respondent in defying the judgment amounts to contempt of the court which is to be dealt with according to law. The petitioner, it is claimed is entitled to be released after availing of the benefit of Section 397-A of Code of Criminal Procedure and by now he should have been released. Keeping him in detention against the law of the realm and against the directions given by the High Court amounts to flagrant abuse of law and the defiance of the directions of this Court.
(3.)RULE was issued and the respondent was called upon to file his objections. In his objections the respondent has slated that he never defied the order of the Court and the Supremacy of the law. He bona fide felt that that provisions under Section 397-A. of the Criminal Procedure Code are not retrospective in operation but only prospective. In this connection the respondent contacted the higher officers of the Government for seeking guidance and direction in this behalf. As the provision of law is debatable the respondent was not in a position to give his own opinion without the guidelines. In this way the respondent cannot be held liable for the alleged Contempt of the Court.