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Criminal Appeal No. 6 of 1954, decided on 19th Novem ber, 1954.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 21st January, 1953, in Criminal Original No. 17 of 1952.)
, S. 2 (3) "Offence punishable under the Penal Code" means offence punish able as contempt.
The prohibition, contained in subsection (3) of section 2, Contempt of Courts Act (XII of 1926) is limited to cases punishable under the Penal Code as Contempt of Court but not otherwise. The expression "offence punishable under the Penal Code" in section 2 (3) does not imply offence of every description punishable under the Code.
Zia‑ul‑Hassan v. Azlz Ahmad A I R 1935 All. 896 dis sented from.
[Case law referred to ]
‑Not prescribed by law High Court Judge who pronounced orders did not hear a part of evidence‑No prejudice to accused alleged‑Contention repelled.
With regard to a proceeding relating to contempt of Court, no particular procedure is prescribed anywhere under the' Procedure Codes. The proceeding is a summary proceeding and may be disposed of according to the discretion of the Court in any manner which does not cause prejudice to the defence.
The jurisdiction of the High Court in cases of contempt is a special kind of jurisdiction similar in nature to the jurisdiction exercised in such matters under the common law of England.
The contention that the Hon'ble Judge who pronounced orders had not heard a part of the evidence, was repelled, in the absence of prejudice to accused.
Mahmud Ali, Advocate, Federal Court, instructed by M. Siddiq, Attorney, for Appellant.
Respondent No. 1 : Not represented.
A. R. Changez, Advocate‑General, Punjab (C. M. Sharif, Advocate, Federal Court with him) instructed by Ijaz All, Attorney, for Respondent No. 2.
Date of hearing: November 4, 1954.
‑The appellant Abdur Rashid, an Assistant Sub‑inspector of Police, was convicted for Contempt of Court , and sentenced to detention till the rising of the Court and a fine of Rs. 200 by order dated 21st January, 1953, passed by Shabir Ahmad J. of the High Court of Judicature at Lahore.
The proceeding which terminated as above was initiated at the instance of the respondent Mehr Falak Sher, a Pleader of the District Court at Jhang, who had presented a petition to the Lahore High Court on the 21st July, 1952, to the effect that while he was appearing in the Court of Capt. Mahabat Khan, on the 17th July, 1952, as defence counsel in the case of Crown v. Raid, etc. relating to the death caused to A. S. I. Noor Muhammad at Chak No. 232, the appellant asked the respondent to come out of the Court room and on his doing so and coming to the verandah of the Court the appellant threatened him saying that he will meet with dire consequences and will be properly dealt with very soon for appearing on behalf of the accused in the case mentioned above. Contempt proceeding was thereupon started against the appellant (Criminal Original No 17/1952) which ended in his conviction as stated above. The appellant thereupon preferred the present appeal on obtaining our leave.
Counsel for the appellant contended before us that as the offence committed fell within section 228 or section 503 of the Penal Code, the High Court was not empowered to take action under the Contempt of Courts Act (XII of 1926) in view of section 2 subsection 3 of the said Act. Section 2 subsection 3 of Act XII of 1926 reads as follows:‑
"No High Court shall take cognizance of a contempt alleged to have been .committed in respect of a Court Subordinate to it where such contempt is an offence punishable under the Penal Code.
The prohibition, however, contained in the above subsection appears to be limited to cases punishable under the Penal Code as contempt of Court but not otherwise. The expression "offence punishable under the Penal Code" in section 2 (3) does not imply offence of every description punishable under the Code. This view of section 2 (3) was also taken in the cases of Kaulashia v. King‑Emperor I L R 12 Pat. 1, Janendra Prasad Bose v. Gopal Prasad Sen I L R 12 Pat. 172 and were noticed by their Lordships of the Judicial Committee in the case of Ali Muhammad Adamali v. King‑Emperor 72 I A 226, but their Lordships did not express their disapproval of that view. Reference here may also be made to the case of Emperor v. Jagari Nath Prasad I L R (1938) All. 548. Section 2 (3), therefore, cannot be of assistance to the appellant in support of his contention.
Next, it was argued that the conviction of the appellant was not sustainable in law as the procedure followed during the trial was contrary to the provisions of the Procedure Code.
In this connection our attention was drawn to the fact that on the 31st July, 1952, evide npe of P. Ws. 1 and 2 was recorded by Shabir Ahmad, J , and tile case was adjourned to the 11th August, 1952, on that day and the next day, P. Ws. 3 to 6 and 1). Ws. 1 to 3 were examined by Cornelius, J.; again on the 27th of October, 15) 2, Shabir Ahmad J. recorded the deposition of D. Ws. 4 and 5.
It is to be observed, however, that with regard to a proceeding relating to contempt of Court, no particular procedure is prescribed anywhere under the Procedure Codes. The proceeding is, a summary proceeding and may be disposed of according to the discretion of the Court in any manner which does not cause prejudice to the defence. But apart from this Aspect of the matter, it may be noticed that in the month of August, the sum mar vacation of the High Court had already begun and the case may have been played before Cornelius J, as a Vacation Judge; in any event, no objection of any kind was raised by the defence in the High Court, in fact, it appears that originally the case was going to be dealt with merely on the, affidavits filed, but Shabir Ahmad J. on 31st July, 1952, recorded the opinion. "The allegations in the petition are entirely denied and in the circumstances it is necessary, to take evidence of the parties," and thereafter the evidence of wit nesses commenced too be taken. Op the 9th October. 1952, Cornelius J. made the order..
"Lot the case come up on the date fixed. I do not think it need necessarily come before me."
The office note dated 14th October, 1952, is as follows:‑
"The case is not to be fixed before his Lordship most probably for the reason that Cornelius J. is going to Federal Court on deputation."
The Hon'ble the Chief Justice then on 15th October, 1952, fixed the case before Shabir Ahmad, J. No‑prejudice of any kind is alleged to' have been occasioned as a result of the above procedure. It need hardly be pointed out that the jurisdiction of the High Court in cases of contempt is a special kind of jurisdiction similar iii nature to the jurisdiction exer cised in such matters under the common law of England.
In my opinion both the contentions fail and I would accordingly dismiss the appeal. '
‑I agree that this appeal should be dismissed but I should like to add some observations of my own.
In support, of his contention that as the act of the appel lant amounts to an offence punishable under section 503 P. P. C., the High Court had no jurisdiction in view of section 2 (3) of the Contempt of Courts Act, the learned advocate for the appellant cited a single Judges, decision of the Allahabad high Court, Zia‑ul‑Hassan v. Aziz Ahmad A I R 1935 All. 896. There, the contempt alleged‑ was that in answer to the interrogatories nerved oh him; the opposite‑party stated that the Chief Reader had friendly relations acid influence over the Court which acted dishonestly and fined him Rs. 40. Sulaiman, C. J., sitting singly declined to take cognizance of the offence as one coming under the Contempt of Courts tact observing that the t act alleged amounted to defamation which is an offence punishable under the Penal Code. The judgment is very brief and there is no discussion about the language of the relevant section of the Act.
As against this decision there are two later decisions of the Allahabad High Court and also the decisions of Patna, Lahore and Nagpur High Courts where the view taken was that subsection (3) of section 2 of the Contempt of Courts Act applies only in those cases of contempt which are punishable as contempt under the Penal Code. In Emperor v. Jagannath Prasad A I R 1938 All. 358 a Division Bench observed: "The words is an offence punishable under the Penal Code in clause 3 are preceded by the words such contempt.' This in our judgment shows that clause 3 is applicable only to cases punishable under the Penal Code as contempt". Referring to the decision in Zia‑ul‑Hassan v. Aziz Ahmad, the learned Judges pointed out that it did not appear from the judgment in that case whether the application was dismissed on the ground that the High Court had no jurisdiction or in the exercise of his discretion the learned Chief Justice refused to initiate proceedings and that if that decision was intend to lay down that the High Court had no jurisdiction they would dissent from it
The decision in Emperor v. Jagannath Prasad A I R 1938 All. 358 was followed by a Full Bench of the same High Court in 1950 in State v. Brahma Prakash and others A I R 1950 All. 536 with the observation that it had been consistently followed in that High Court. The Patna High Court in Kaulshia v. King Emperor I L R 12 Pat. 1 and Janendra Prasad Bose v. Gopal Prasad Sen I L R 12 Pat. 172 and the Lahore High Court in Bennett Coleman & Co. Ltd. v. G. S. Monga and another A I R 1938 Lah. 917 took the view that clause (3) of section 2 of the Act applied only to cases punishable under the Code as contempt. The Nagpur High Court also has taken the same view to Sub‑Judge. First‑ Class Hoshangahad v. Jawahar Lai Ram Chand Parwar A I R 1940 Nag. 307.
Having regard to the object of the Act which was to protect the subordinate Courts from contempt and the language of the section, it appears to me that the view taken in the above cases other than Zia‑ul‑Hassan v. Aziz Ahmad is the correct view.
The contention that the proceedings were vitiated because the Judge who wrote the order convicting the appellant had not heard the entire evidence, is also devoid of force. The Cr. P.. C. is not applicable to these proceedings. It was not disputed that no procedure has been prescribed for such case. That being so it was in the. discretion of the High Court to follow the procedure it considered suitable. We have not been shown that the appellant was prejudiced because the learned Judge who pronounced orders had not heard a part of the evidence.
‑I agree that the appeal be dismissed.
A. H. Appeal dismissed.
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