MR. VINAY PRAKASH SINGHversusSAMEER GEHLAUT & ORS. IN THE MATTER OF:- SHIVINDER MOHAN SINGH

660                       [2022]
               SUPREME COURT     8 S.C.R. 660
                              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)
D
                            NOVEMBER 14, 2022
              [K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
            Code of Criminal Procedure, 1973 – s.428 – Period of
      detention undergone to be set off against the sentence or
E     imprisonment – When – Applicant was found guilty of contempt by
      order dtd.15.11.19, was sentenced for 6 months imprisonment by
      order dtd.22.09.22 – Present application seeks clarification w.r.t
      the date of commencement of the term of imprisonment, which as
      per the applicant should be from 03.02.20 instead of 22.09.22, as
      he has been in custody since then though in another case – Held:
F
      Applicant stood convicted by order dtd.15.11.19 – The Court before
      sentencing had to cause the production of the applicant – Applicant
      was already undergoing pre-trial custody in connection with another
      case – Therefore, he had to be produced from the custody which he
      was undergoing in that case – He was produced– Merely because
G     Supreme Court after convicting the applicant by order dtd.15.11.19
      caused the production of the applicant before it for the imposition
      of an appropriate sentence, it cannot be said that the applicant
      would be in custody – An indispensable requirement to invoke s.428
      is that there must be a conviction followed by a sentence of
      imprisonment for a term and it should not be imprisonment in default
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                                      660
    MR. VINAY PRAKASH SINGH v. SAMEER GEHLAUT                           661
                      & ORS.

of payment of fine – Detention undergone by the convict during          A
investigation, enquiry or trial must be in the ‘same case’ – In the
present case, the applicant has not undergone any detention in
connection with the contempt case – Custody undergone by the
applicant admittedly in connection with another case cannot be
understood as custody undergone in the contempt of Court case –
                                                                        B
No clarification as sought, can be issued.
      Judgments/Orders – Interpretation of – Held: A judgment of
a Court is not to be read shorn of the facts and the context in which
the law has been declared.
      Dismissing the application, the Court                             C
       HELD: 1.1 Section 428 of Cr.P.C. on which the applicant
lays considerable store by, actually contemplates the presence
of two circumstances. During the stage of investigation, inquiry
or trial of a particular case the prisoner should have been in jail
at least for a certain period. The second requisite is that he should   D
have been sentenced to a term of imprisonment in that case. In
the facts of this case, the applicant was in custody admittedly in
connection with another case on 15.11.2019 as also on 03.02.2020
and also on 16.03.2020. For the mere reason that this Court after
convicting the applicant by order dated 15.11.2019 caused the
production of the applicant before this Court for the purpose of        E
considering the imposition of an appropriate sentence, it cannot
be said that the applicant would be in custody. In this regard it is
noticed that in the order dated 15.11.2019, the Court
contemplated a chance being afforded to the applicant to purge
himself of the contempt. [Para 9][666-G-H; 667-A-C]                     F
      State of Maharashtra and Another versus Najakat Alia
      Mubarak 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’s
Theorem shorn of the facts and the context in which the law has         G
been declared. [Para 11][668-F-G]
      Niranjan Singh and Another Versus Prabhakar Rajaram
      Kharote and Others (1980) 2 SCC 559: [1980] 3 SCR
      15 – distinguished.
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662            SUPREME COURT REPORTS                      [2022] 8 S.C.R.


A            1.3 An indispensable requirement to invoke Section 428 of
      Cr.P.C. is that there must be a conviction. The conviction must
      be followed by a sentence of imprisonment. It must be for a term
      and it should not be imprisonment in default of payment of fine. If
      these requirements exist, then the occasion opens up for applying
      the beneficial provisions of Section 428 of Cr.P.C. However, for
B
      it to be invoked the existence of detention undergone by the
      convict during investigation, enquiry or trial in the ‘same case’ is
      indispensable. If these requirements are satisfied, the convict
      would be entitled to the set off for the period of detention which
      he has undergone. In this case, the applicant has not undergone
C     any detention in connection with the contempt case. A perusal of
      the order passed by this Court would reveal that the applicant
      stood convicted by order dated 15.11.2019. The Court before
      sentencing the applicant had to cause the production of the
      applicant. It so happened that the applicant was already undergoing
      pre-trial custody in connection with another case. Therefore, he
D
      had to be produced from the custody which he was undergoing in
      that case. He was produced. An affidavit was filed by him, wherein
      he sought to purge himself of the contempt. The Court was 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
E     to attempt to purge himself for the contempt. Since he was
      produced from custody, he necessarily had to go back to custody
      in connection with another case. In the facts of this case the
      custody undergone by the applicant in connection with another
      case admittedly and which had its origin and continuance all
      through out with reference to the said case cannot be understood
F
      as custody undergone in the contempt of Court case. [Paras 12-
      14][669-A-H]
                            Case Law Reference
      [2001] 3 SCR 600               referred to             Para 7
G     [1980] 3 SCR 15                distinguished           Para 7
            CIVIL APPELLATE JURISDICTION : Miscellaneous
      Application No.1902 of 2022
            With
H
     MR. VINAY PRAKASH SINGH v. SAMEER GEHLAUT                           663
                       & ORS.

       Intelocutory Application No.157792 of 2022. In Contempt Petiton   A
(Civil) No.2120 of 2018. In Special Leave Petiton (Civil) No.20417 Of
2017
      From the Judgment and Order dated 22.09.2022 of this Hon’ble
Court in the Contempt Petition No.2120 of 2018 in SLP (C) No.20417
of 2017.                                                                 B
     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.                            C
       Mahesh Agarwal, Ankur Saigal, Himanshu Satija, Nishant Rao,
Ms. Mansi Taneja, E. C. Agrawala, Ms. B. Vijayalakshmi Menon, Vivek
Jain, M/s. Karanjawala & Co., Hardeep Singh Anand, Faisal Sherwani,
Advs. for the Respondents.
      The Judgment of the Court was delivered by                         D
      K. M. JOSEPH, J.
      1. This Miscellaneous application No.1902 of 2022 is filed in
Contempt Petition (Civil) No.2120/2018 in SLP (Civil) No.20417/2017.
The applicant in this application is contemnor No.10 (Dr. Shivinder
Mohan Singh). The contempt petition culminated in an order dated         E
15th November, 2019. We need only refer to the record of proceedings
dated 15th November, 2019 which indicates how the matter was dealt
with by the Court.
        “ii) Malvinder Mohan Singh, Director of Oscar Investments
      Limited and Diretor of RHC Holding Private Limited (Contemnor      F
      Nos.9 and 12) and Shivinder Mohan Singh, Director of Oscar
      Investments Limited and Director of RHC Holding Private Limited
      (Contemnor Nos.10 and 13) have knowingly and willfully violated
      the orders of this Court dated 11.08.2017, 31.08.2017 and
      15.02.2018 as continued on 23.02.2018. Therefore, we hold both
                                                                         G
      of them guilty of committing Contempt of this Court. We give one
      chance to them to purge themselves of the contempt. We, direct
      that in case each of the contemnors deposits a sum of Rs.1170.95
      crores in this Court within eight weeks from today then we may
      consider dealing with them in a lenient manner, while imposing
      sentence.”                                                         H
664            SUPREME COURT REPORTS                         [2022] 8 S.C.R.


A           2. Thereafter, we may notice direction No.2, from the order dated
      03.02.2020, which is as follows:-
              “Direction No.2:
               Both contemnors Malvinder Mohan Singh and Shivinder Mohan
            Singh are present in Court and they have been brought from judicial
B           custody as they are in jail in respect of some other case. On the
            oral request made by learned Counsel for Malvinder Mohan Singh
            and Shivinder Mohan Singh, we direct Naresh Kumar, ASI who
            has brought them to this Court to ensure that both the detenus are
            permitted to meet their family members till 2.00 P.M., within the
C           Supreme Court premises.
                Shivinder Mohan Singh has filed an affidavit. We are not fully
            satisfied with the same. Ms. Meenakshi Arora, learned Senior
            Counsel, prays for some time to file a more detailed affidavit.
            Malvinder Mohan Singh and Shivinder Mohan Singh are directed
            to file fresh proposals as to how they want to purge themselves of
D
            the contempt. They may file an appropriate application as to how
            they would like to discharge their liability which is the subject-
            matter of the contempt petition, positively by 05.03.2020 with
            advance copies to all the parties and the matter be listed before
            the Court on 16.03.2020.
E              We also direct the jail authorities to ensure that Malvinder
            Mohan 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 to
            meet Mr. Vivek Jain, Adv. 606-B, Adiswar Apartments, 34,
F           Ferozshah Road, New Delhi – 110 001 for four hours on two
            occasions between this period and they will escort them to the
            offices of the counsel.”
            3. Thereafter the matter came to be finally disposed of by order
      dated 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 suffer
               six months imprisonment and pay fine in the sum of Rs.5,000/
               - each within four weeks from today. In case of default of
               payment of fine, the contemnors shall undergo further
H              imprisonment of two months.”
     MR. VINAY PRAKASH SINGH v. SAMEER GEHLAUT                                  665
                & ORS. [K. M. JOSEPH, J.]

        4. The present application has been filed on the following basis. It    A
is, inter alia,stated that the applicant was already in the custody of this
Court in the Contempt Petition (Civil) No.2120 of 2018 from 03.02.2020
itself when he was brought from Jail No.7, Tihar Jail, New Delhi to this
Court. It is further stated that the applicant had never applied for bail
after 03.02.2020 and he thus has been in continuous custody of this
                                                                                B
Court. Thereafter the cause for moving the present application has been
set out which is as follows:
         “That the Applicant is now constrained to move the present
      application for clarification as Paragraph 30 (a) of the Order dated
      22.09.2022 does not specify the date of commencement of the
      term of imprisonment of 6 (six) months. Pertinently, the authorities      C
      in the Tihar Jails, New Delhi have taken a position that the
      Applicant’s term of imprisonment of 6 (six) months shall
      commence from the date of the Order dated 22.09.2022, given
      that the Order dated 22.09.2022 is silent regarding the date of
      commencement of the term of imprisonment.                                 D
       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 clarification
      in respect of Paragraph 30(a) of the Order dated 22.09.2022 in
      Contempt Petition No.2120 of 2018 to the effect that the term of          E
      imprisonment of 6 (Six) months shall be deemed to have
      commenced from 03.02.2020 instead of 22.09.2022.”
       6. We heard Ms. Meenakshi Arora, learned senior counsel
appearing on behalf of the applicant and Mr. Rajiv Dutta, learned senior
counsel appearing on behalf of the non-applicant/Ms. Daiichi Sankyo             F
Company Limited. Ms. Meenakshi Arora, learned senior counsel
appearing on behalf of the applicant would point out that it is evident
from the narration of facts which we have already made that the applicant
must be treated as being in custody from 03.02.2020. The applicant
stood sentenced finally for a period of six months. The applicant has           G
already spent more than 30 months in custody if the beginning of the
period is determined as 03.02.2020. It is also contended that the applicant
was produced again on 16.03.2020. It is further contended that the
applicant was not released on bail. Therefore, the applicant must be
treated as being in custody. In this connection, she bolsters her contentions
                                                                                H
666             SUPREME COURT REPORTS                            [2022] 8 S.C.R.


A     with 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 set
            off against the sentence or imprisonment.- Where an accused
            person has, on conviction, been sentenced to imprisonment for a
B           term [not being imprisonment in default of payment of fine], the
            period of detention, if any, undergone by him during the investigation,
            inquiry or trial of the same case and before the date of such
            conviction, shall be set off against the term of imprisonment
            imposed on him on such conviction, and the liability of such person
            to undergo imprisonment on such conviction shall be restricted to
C           the remainder, if any, of the term of imprisonment imposed on
            him.”
             7. She has also relied upon the judgment of this Court reported in
      (2001) 6 SCC 311, State of Maharashtra and Another versus Najakat
      Alia Mubarak Ali. Still further, she would contend that this Court has
D     taken the view that a person can be said to be in custody when he
      surrenders before the Court. [See in (1980) 2 SCC 559, Niranjan Singh
      and Another Versus Prabhakar Rajaram Kharote and Others. She
      would therefore conclude by contending that in the interest of justice
      also this is a case which requires that this Court clarifies that the period
E     of custody as undergone from 03.02.2020 should be reckoned and
      therefore in view of the period of imprisonment actually imposed on
      22.09.2022, no further custody is required in connection with the case.
             8. Per contra, Mr. Rajiv Dutta, learned senior counsel for the
      non-applicant would point out that when the applicant was produced
F     before 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 to
      purge himself of the contempt which is self evident from the perusal of
      the proceedings.
             9. We find no merit in the contentions of the applicant. The
G     following are the reasons. Section 428 of Cr.P.C. on which the applicant
      lays considerable store by, actually contemplates the presence of two
      circumstances. They have been highlighted in the very judgment which
      the applicant relies on, namely (2001) 6 SCC 311, State of Maharashtra
      and Another versus Najakat Alia Mubarak Ali. During the stage of
      investigation, inquiry or trial of a particular case the prisoner should have
H
     MR. VINAY PRAKASH SINGH v. SAMEER GEHLAUT                                667
                & ORS. [K. M. JOSEPH, J.]

been in jail at least for a certain period. The second requisite is that he   A
should have been sentenced to a term of imprisonment in that case. In
the facts of this case, the applicant was in custody admittedly in
connection with another case on 15.11.2019 as also on 03.02.2020 and
also on 16.03.2020. For the mere reason that this Court after convicting
the applicant by order dated 15.11.2019 caused the production of the
                                                                              B
applicant before this Court for the purpose of considering the imposition
of an appropriate sentence, it cannot be said that the applicant would be
in 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 purge
himself of the contempt.
                                                                              C
      10. At this juncture, it may be apposite that we deal with the
argument based on the judgment of this Court in (1980) 2 SCC 559,
Niranjan Singh and Another Versus Prabhakar Rajaram Kharote
and Others. Therein we may notice the following statements which
read as follows:-
                                                                              D
      “7. When is a person in custody, within the meaning of Section
      439 CrPC? When he is in duress either because he is held by the
      investigating agency or other police or allied authority or is under
      the control of the court having been remanded by judicial order, or
      having offered himself to the court’s jurisdiction and submitted to
      its orders by physical presence. No lexical dexterity nor               E
      precedential profusion is needed to come to the realistic conclusion
      that he who is under the control of the court or is in the physical
      hold of an officer with coercive power is in custody for the purpose
      of Section 439. This word is of elastic semantics but its core
      meaning is that the law has taken control of the person. The            F
      equivocatory quibblings and hide-and-seek niceties sometimes
      heard in court that the police have taken a man into informal custody
      but not arrested him, have detained him for interrogation but not
      taken him into formal custody and other like terminological dubieties
      are unfair evasions of the straightforwardness of the law. We
      need not dilate on this shady facet here because we are satisfied       G
      that the accused did physically submit before the Sessions Judge
      and 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
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668            SUPREME COURT REPORTS                              [2022] 8 S.C.R.


A           or at least physical presence of the accused in court coupled with
            submission to the jurisdiction and orders of the court.
            9. He can be in custody not merely when the police arrests him,
            produces him before a Magistrate and gets a remand to judicial or
            other custody. He can be stated to be in judicial custody when he
B           surrenders before the court and submits to its directions. In the
            present case, the police officers applied for bail before a Magistrate
            who refused bail and still the accused, without surrendering before
            the Magistrate, obtained an order for stay to move the Sessions
            Court. This direction of the Magistrate was wholly irregular and
C           maybe, enabled the accused persons to circumvent the principle
            of Section 439 CrPC. We might have taken a serious view of
            such a course, indifferent to mandatory provisions, by the
            subordinate magistracy but for the fact that in the present case
            the accused made up for it by surrender before the Sessions Court.
            Thus, the Sessions Court acquired jurisdiction to consider the bail
D           application. It could have refused bail and remanded the accused
            to custody, but, in the circumstances and for the reasons mentioned
            by it, exercised its jurisdiction in favour of grant of bail. The High
            Court added to the conditions subject to which bail was to be
            granted and mentioned that the accused had submitted to the
E           custody of the court. We, therefore, do not proceed to upset the
            order on this ground. Had the circumstances been different we
            would have demolished the order for bail. We may frankly state
            that had we been left to overselves we might not have granted
            bail but, sitting under Article 136, do not feel that we should interfere
            with a discretion exercised by the two courts below.
F
            11. We must bear in mind as has been laid down by this Court in
      an unbroken catena of decisions that a judgment of a Court is not to be
      read as the Euclid’s Theorem shorn of the facts and the context in
      which the law has been declared. We must immediately notice that the
      view was proclaimed in Niranjan Singh (supra) in the context of the
G     question as to whether the Court had jurisdiction to entertain an
      application under Section 439 of Cr.P.C. which provides for power with
      the High Court to grant bail. The fact that the Court had this in mind has
      been lucidly expressed also as we have noticed. In other words, this
      Court was not considering a case which involved the application of Section
H     428 of Cr.P.C.
     MR. VINAY PRAKASH SINGH v. SAMEER GEHLAUT                                669
                & ORS. [K. M. JOSEPH, J.]

       12. As far as Section 428 of Cr.P.C. is concerned, an indispensable    A
requirement to invoke Section 428 of Cr.P.C. is that there must be a
conviction. The conviction must be followed by a sentence of
imprisonment. It must be for a term and it should not be imprisonment in
default of payment of fine. If these requirements exist, then the occasion
opens up for applying the beneficial provisions of Section 428 of Cr.P.C.
                                                                              B
However, for it to be invoked the existence of detention undergone by
the convict during investigation, enquiry or trial in the ‘same case’ is
indispensable. If these requirements are satisfied, the convict would be
entitled to the set off for the period of detention which he has undergone.
       13. In this case, the applicant has not undergone any detention in     C
connection with the contempt case. A perusal of the order passed by
this Court would reveal that the applicant’s stood convicted by order
dated 15.11.2019. The Court before sentencing the applicant had to cause
the production of the applicant. It so happened that the applicant was
already undergoing pre-trial custody in connection with another case.
Therefore, he had to be produced from the custody which he was                D
undergoing in that case. He was produced. An affidavit was filed by
him, wherein he sought to purge himself of the contempt. The Court
was 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 to
attempt to purge himself for the contempt. Since he was produced from         E
custody, he necessarily had to go back to custody in connection with
another case.
       14. Ms. Meenakshi Arora, learned senior counsel pointed out that
at that stage what should have been done had it been a case where he
was not being sent back to custody in another case was to enlarge him         F
on bail in the contempt of Court case and this circumstance should
therefore signify that he was indeed in custody from 03.02.2020. We
are of the view that this circumstance, if it is indeed correct, should not
be available to the applicant to convert what was custody which he was
undergoing in connection with another case to custody in the contempt
of Court case. In other words, we cannot understand in the facts of this      G
case that the custody undergone by the applicant in connection with
another case admittedly and which had its origin and continuance all
through out with reference to the said case as custody undergone in the
contempt of Court case.
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670              SUPREME COURT REPORTS                           [2022] 8 S.C.R.


A            15. We cannot, therefore, agree with the applicant that a
      clarification must be issued by this Court that the commencement of
      period of imprisonment should be treated as from 03.02.2020 instead of
      22.09.2022.
             The miscellaneous application will stand dismissed.
B
             Pending application(s), if any, stands disposed of.


      Divya Pandey                                Miscellaneous application dismissed.
      (Assisted by : Deepak Panwar, LCRA)

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