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Criminal Appeal No. 10 of 1954, decided on 19th Novem 1954.
(On appeal from the judgment and order of the Court of inquiry into the Punjab disturbances dated the 1st September,
(1953, in case No. 2 of 1953).
Contempt of Court‑Appeal to Federal Court from order of court of Inquiry constituted under Punjab Disturbances (Public Inquiry v' Ordinance (III of 1953), whether lies‑Contempt of judicial body punishable provided there is specific provision to that effect‑Punjab Disturbances (Public Inquiry) Ordinance j of 1953), S. 10 read with S. 5 (3)‑‑Court of Inquiry.
whether "Court" within meaning of S. 3 of Judicial Committee Act, 1833‑Contempt‑Costs, whether could not be allowed in absence of order of conviction‑Contempt of Courts Act (XII of 1926)‑Does not take away all the. inherent powers of High Court.
‑"The offence of contempt may be ,committed in relation to any proceeding though not judicial in character if there is a specific provision to that effect."
The terms of section 10, ' Punjab Disturbances Public Inquiry Ordinance (III of 1953), relating to power and procedure of the Court of Inquiry to punish contempt are express, explicit and unambiguous, they do not lead to and inconsistency when read along with section 5 (3) which merely provides for the proceedings before the Court of Inquiry being treated as a judicial proceeding for purposes of sections 193 and 228 of the Penal Code and makes no reference whatever to the powers of the Court of Inquiry for contempt proceedings, provided , for under section 10.
. "The Court of Inquiry constituted under the Punjab Disturb ances (Public Inquiry) Ordinance (Ill of 1953) was not Tribunal exercising judicial power and therefore it cannot be said to be a Court or its Members, Judges or Judicial officers in the sense in which these expressions occur in section 3 the Judicial Committee Act", 1833.
Appeal to the Federal Court, therefore, from. an order of the Court of Inquiry in contempt proceedings was not competent.
Shell Co. of Australia, Ltd. v. Federal Commissioner Taxation, 1931 A C 275 and Labour Relation Board of Saskatchawan v. John East Iron Works, Ltd., 1949 A C 134, rel‑
.-The Court of Inquiry in dealing with contempt proceedings, was acting judicially and as such, its order could be the subject of an appeal to this (the Federal) Court."
The facts of the case were that on the basis of a news‑item in certain papers to the effect that a Com mission appointed by the Court of Inquiry constituted under Ordinance III of 1953 had discovered that during the term of office of respondent No. 2, as the Chief Minister of the Punjab, a sum of over rupees two lacs had been diverted from the Literary Fund to subsidies some Urdu ,daily papers, the appellant contributed an article to certain English papers commenting on the news and exhorting public men "to rise to the occasion now that such outrageous disclosures have been made, and muster courage to discharge their duty boldly and fearlessly". The Court of Inquiry thereupon, at the instance of the respondent No. 2, instituted a proceeding against the appellant for contempt of Court. Upon finding, however, that the appellant was not actuated by personal malice, the Court accepted the apology tendered by the appellant and made him liable merely for the costs of respondent No. 2, Rs. 200, without recording a conviction.
‑Held, There can be no valid objection to the Court of Inquiry allowing costs against the appellant even though he had not been convicted and that in discretion ary ;natters unless there was a grave miscarriage of justice or a contravention of some principle of natural justice, the Federal Court as a rule did not interfere in the exercise of its preroga tive jurisdiction.
.‑A High Court has inherent' power to award costs in proceedings before it, and section 10 of the Ordinance gave the Court of Inquiry the same powers as are enjoyed by a High Court. The latter part of that section no‑doubt. restricted the exercise of those powers to the limits mentioned in the Contempt of Courts Acts, 1926, but it is not correct to say that the latter Act takes , away all the inherent powers of the High Court.
Awarding . ,costs does not amount to the infliction of punishment, and section 3 of the Contempt of Courts Act cannot be said to have been contravened by the order under appeal.
Andre Paul Terence Ambard v. The Attorney General of Trinidad and Tobago A I R 1936 P C 141 and Parashuram Detaram Shamdasani v. Emperor A I R 1945 P C.134, ref.
.‑Since no punishment was imposed, no interference is called for; the order as to costs was merely ancillary indicating no more than that there were good reasons for moving the Court to issue notice of contempt.
Nasim Hasan, Advocate, Federal Court instructed by Nazir‑ud‑Din, Attorney, for Appellant.
A. R. Changez, Advocate‑General, Punjab, , (S. A. Mahmud Advocate, Feddral Court with him), instructed by Ijaz Ali Attorney, for Respondent No. 1.
Respondent No. 2 : Not represented.
Date of hearing : October 15, 1954.
‑On the 7th August, . 1953, there appeared a news item in certain papers to the effect that a Commission appointed by the Court of Inquiry constituted, under Ordinance III of 1953 had discovered that during the term of office of respondent No. 2, as the Chief Minister of the Punjab, a sum of over rupees two lacs had been diverted from the Literary Fund to subsidise some Urdu daily papers. On the basis of this news the, appellant contributed an article to certain English papers commenting on the news and exhorting public men "to rise to the occasion now that such outrageous disclosures have been made, and muster courage to discharge their duty boldly and' fearlessly". The Court 'of Inquiry thereupon, at the instance of the respondent No. 2, instituted a, proceeding against the appellant for contempt of Court. Upon finding , however, that the appellant was not actuated by personal malice, the Court accepted the apology tendered by the appellant and made him liable merely for the costs of the respondent No. 2,. Rs. 200, without recording a conviction. .From this order of. costs, the appellant preferred the present appeal after obtaining our leave.
Counsel for the appellant contended:-
(1) That the proceeding pending before the Court of Inquiry not being a judicial proceeding, the power to institute a proceeding for contempt of Court could not be legally con ferred or exercised in connection with such a proceeding.
No authority, however, in support of the above proposition was cited to us. In the view I take, the offence of contempt may be committed in relation to any proceeding though not judicial in character if there is a specific provision to that effect. Attention in this connection may be drawn to section 483, Cr. P. C. In the present case,. the Court of Inquiry was empowered under section 10 of Ordinance III of 1953, to commit for contempt. A proceeding for contempt legally instituted cannot be regarded as an administrative or executive action.
(2) That the power of the Court of Inquiry as regards contempt matters was limited by the terms of section 5 sub section 3 of the Ordinance which is as follows:
Section 5 (3) "The enquiry of the said Court shall be deemed to be a judicial proceeding within the meaning of section 193 and 228 of the P. P.C."
That consequently the power of the 'Court of Inquiry to take action for contempt was confined to matters covered by sections 193 and 228 of the Penal Code.
It is to be noticed, however, that section 5 (3) 'merely provides for the proceedings before the Court of Inquiry being treated as a judicial proceeding for purposes of sections 193 and 228 of the Penal Code. It makes no reference whatever to the powers of the Court of Inquiry for contempt proceedings. On the other hand section 10 , of the Ordinance provides a hereunder :-
Section 10. "Power and the procedure of the Court to punish contempts.‑The Court shall have the same powers of punishing contempts of itself as are enjoyed by a High Court under the law for the time being in force and in this respect it shall exercise the same powers and follow the same procedure as is done by the High Courts while‑ dealing with contempt s under the Contempt of Courts Act of 1926."
If is not unlikely that section 5 (3) above was enacted with a view to set at rest all controversy which may arise as regards the proceeding before the Court of Inquiry being a judicial proceeding in connection with the liability to punish ment for offences under sections 193 and 228 of the Penal Code. It may be, observed here that under section 4 (m) of the Cr. P. C., " judicial proceeding includes any proceeding in the course of which evidence is or may .be legally taken on oath", but under section 5 subsection 4 of Ordinance III of 1953, "The Court shall not be bound by the provisions of the Code of Criminal Procedure, 1898, save to the extent provided in this Ordinance and may determine its own rules of procedure".' But whatever the reason for section 5 subsection 3 the terms of section 10 are express, explicit and unambiguous and do not E lead to any inconsistency when read along with section 5 (3).
(3) That the inquiry being limited as regards the disturb ance which took place in the Punjab, the diversion of funds commented upon by the appellant was outside the scope of that inquiry. and consequently no proceeding for a contempt, in respect thereof could be, initiated.
The preamble and section 4 of the Ordinance, however, clearly state the purpose and the function of the Court of Inquiry and include within its express terms the circumstances, the responsibility, and the adequacy of the measures taken for preventing the disturbances. It is obvious that if the matter of diversion of funds was irrelevant or unimportant, a Commis sion to make a report with regard to the use of the funds, would not have been appointed by the Court of Inquiry.
(4) That the order of costs against the appellant, in the absence of his conviction was illegal and improper.
But costs are a matter of discretion for Courts and no principle or provision anywhere forbidding costs in contempt matters against an accused without recording his conviction, has been pointed out to us. Absence of provision on a matter does not imply that it is forbidden by law. The powers conferred upon the Court of Inquiry are the same as those possessed by the High Court. There can be no valid objection, therefore, to the Court of Inquiry allowing costs against the appellant even though he has not been convicted. In discre tionary matters unless there, is a grave miscarriage of justice or a contravention of some principle of natural justice, this Court as a rule does not interfere in the exercise of its preroga tive jurisdiction.
In my opinion all the contentions fail and I would, .there fore, dismiss this appeal.
‑This is an appeal by special leave from an order directing the petitioner Mr. Abdul Haq to pay Rs. 200 as costs of the petition filed against him for taking proceedings for contempt of Court, passed by the Court of Inquiry constituted under . Punjab Disturbances (Public Inquiry) Ordinance, 1953.
Under the above mentioned Ordinance, which subsequently became an Act in January, 1954, the Chief Justice and Kayani I of the Lahore High Court were appointed as President and Member respectively of a Court of Inquiry to hold a public enquiry into the circumstances connected with the responsibility for the Punjab Disturbances which led to the promulgation of Martial Law on the 6th of March 1953 and the adequacy or otherwise of the measures taken by the provincial civil authorities to prevent and to deal with the said disturbances. It was provided that the said inquiry shall be deemed to be a judicial civil proceeding .within the meaning of section, 193 and 228 of the P. P. C. Power to punish contempts of itself is given to the Court of Inquiry under section 10 of the ordin ance in the following terms :‑
"The Court shall have the same power of punishing contempts of itself as are enjoyed by a High Court under the law for the time being in force and in this respect it shall exercise the same powers and follow the same procedure as is done by the High Courts while dealing with contempts under the Contempt of Courts Act of 1926."
While the public enquiry was being held, a news item appeared in the papers on 7th of August 1953 to the effect that a Commission appointed by the Court of Inquiry had discovered that during the term of office of Mr. Mumtaz Muhammad Khan Daultana as Chief Minister, the Punjab Government had diverted over two lacs of rupees, from the Adult Literacy Fund to the subscription of four Urdu dailies. Subsequent to the appearance of this news item the appellant contributed an article in English to the principal English Daily paper of Lahore and sent copies of that article for translation in Urdu dailies. In this article, while appealing to the public to bring to light the misdeeds of Daulatana Ministry it was stated that the news item was no disclosure "because they have still fresh in their minds many still more significant 'Golden deeds' of that administration before which the present disclosure must pale into insignificance." It was also stated that it was an open secret that the Ministry won over its opponents and rewarded and encouraged its friends at the expense of the tax‑payer.
Mr. Mumtaz Muhammad Khan Daulatana thereupon filed a petition before the Court of Inquiry for action to be taken against the appellant for contempt of Court The learned judges constituting the Court of Inquiry came to the conclusion that the portion of the article referred to above assumed that money was diverted to the Urdu dailies with dishonest motive and since that matter awaited investigation by them the above said assumption was in contempt of the proceedings of the Court of Inquiry. But as it was not alleged that the appellant was prompted by malice, and as he had tendered an apology the Court of Inquiry did not consider it necessary to record a conviction of contempt. On the other hand the Court was of opinion that a direction to the appellant to pay the costs of application which was estimated at 200 would meet the ends of justice.
One of the points raised by the learned Advocate‑General of Punjab is that the order appealed from is not a matter which could suitably be referred to the judicial Committee under section 3 of the Judicial Committee Act, 1833, the limits imposed by which provision apply to this Court by virtue of section 3 of the Privy Council (Abolition of Jurisdiction) Act 1950. The argument was that the order referred to in section 3 of the judicial Committee Act of 1833 is an order of a Court or a judge or judicial officer and none of these expressions applies to the Court of Inquiry. The position taken by the learned advocate for the appellant was that the order in question was an order binding on the appellant and so it would come section 3 of the Judicial Committee Act.
Having regard to the function the Court of Inquiry was constituted to discharge I consider that it was not a Tribunal exercising judicial power and therefore it cannot be said to be Court or its Members, Judges or judicial Officers in the., ;;SF in which these expressions occur in section 3 of the judicial Committee Act. The proceeding before the Court of inquiry was no doubt to be deemed a judicial proceeding within le sections 193 and 228 P. P. C. and the Court of Inquiry was empowered under the same section to enforce attendance of and minister oath to witnesses and to compel the production of documents but these powers by themselves are not sufficient to make it. a Court exercising judicial power. In Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (1931 A C 275), Lord Sanky in dealing with the question what is "judicial power"
Observed:--
"Their Lordships are of opinion that one of the best defini tions is that given by Griffith C. J., in Huddart, Parker & Co. v. Moorehead where he says 'I am of opinion that the words 'judicial power' as used in section' 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subject, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action"'.
His Lordship further observed : "that a tribunal is not necessarily in the strict sense of exercising judicial power merely because it gives a final decision or hears witnesses oil oath The following observation of Lord Simmons in Labour Relation Board of Saskatchawan v. Jahn East Iron Works Lt.d. (1949 A C 134) is also instructive
"It is a truism that the conception, of the judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject, and that it is the duty of the Court to decide the issues between these parties, with whom it rests to initiate or defend or compromise the proceedings."
The Court of Inquiry with which we are concerned in this case cannot be said to come within the definition of judicial power approved by Lord Sanky or the traditional conception of a Court referred to by Lord Simmons in the later case It was a tribunal constituted to investigate into the causes of the disturbances, responsibility therefor, and the circumstances which led to the declaration of the Martial Law and the adequacy or otherwise of the measures taken by the Provincial Government to prevent and subsequently to deal
with the disturbances. There were no parties to the proceedings and what the Court of Inquiry was to do was only to summon witnesses and make a general kind of inquiry and record its opinion. There is nothing in the Ordinance making its opinion binding on any particular person or persons. It was in effect a tribunal constituted to advise the Provincial Govern went. The order under appeal was no doubt .an order in z proceeding between the parties, but the order was by Tribunal which in view of what has been said above was not Court exercising judicial power.
I, therefore, consider .that the contention of the learned Advocate‑General must prevail.
In view of this conclusion the appeal has to fail. Even i1 it is assumed for argument's sake that the order under appeal was an order of a Court within the meaning of section 3. of the Judicial Committee Act of 18 i3 there are no merits in the contentions raised by the learned advocate for the‑ appellant.
The main contentions advanced ,by the learned counsel for the appellant on merits were (1) that a direction to pay costs to the opposite‑party is in' fact a punishment, while the Court of Inquiry in view of section 10 of the Ordinance had only the powers, of punishment mentioned in section 3 of Contempt of Court Act 1926 which does not mention the awarding of costs; and (2) that the inherent powers which a High Court has to award costs in a proceeding could not be exercised by the Court of Inquiry as section 10 of the Ordinance while conferring on it the powers of a High Court restricted the exer cise of those powers to the limits imposed by the Contempt of Courts Act, 1926.
We have pot been shown any authority for the proposition that an order directing a party to pay costs to his opponent is an order of punishment. It was, however, argued that as it was .held by the Privy Council in Andre Paul Terence Ambard v. The Attorney General of Trinidad and Tobago (AIR 1936 P C 141), that an act amounting to contempt of Court is quasi criminal a direction in such a case to pay costs cannot but be regarded as punishment. The observation of their Lordships in that case that such acts are quasi 'criminal acts was made while laying down the principle on which leave to appeal in such cases could be; granted. ‑ But as a matter of fact in that case while allowing the appeal their Lordships directed the respondents to pay the costs of the appellants.. In a later decision in Parashuram Delaram Shamdasani v. Emperor (AIR 1945 P C 134), where in respect of an order of the High Court of Bombay made by a single Judge of that , Court adjudging the appellant guilty of contempt and convicting and sentencing him to imprisonment and a fine, a Bench of that High Court granted a certificate to the‑ convicted persons to _ appeal to His Majesty, their Lordships while accep ting the appeal ordered the Crown to pay the posts of the appellant. In giving that direction their Lordships observed:.
"Where the Crown appears to uphold a conviction in a criminal case it is not the practice to award costs to the appellant in the event of appeal succeeding although this matter is one which is known as a criminal contempt it obviously is in a different category from an ordinary case: It is a matter of some surprise to their Lordships that in spite of the emphatic opinion of the Chief Justice and another Judge of the Court of which the appellant was alleged to be in contempt that no contempt had been committed, the executive deems it necessary not only to appear but has endeavoured to , uphold this order. The appellant should have the costs of the appeal."
It can hardly be said that in passing this order their Lordships were inflicting a punishment on the executive. I was not disputed that High Court has inherent power to award costs in proceedings before it, and section 10 of the Ordinance gave the Court of Inquiry the same powers as are enjoyed by a High Court. The latter part of that section no doubt restricted the exercise of those powers to the limits mentioned in the Contempt of Courts Act, l926, but it is no correct to say that the latter Act takes away all the inherent powers of the High Court. Section 2 (1) of the Act is this:
"Subject to the provision of subsection (3) the High Courts of Judicature established by Letters Patent shall have and exercise the same jurisdiction powers and authority in accordance with the same procedure and practice in respect of contempts Court subordinate to them as they have and exercise in respect of contempts of themselves."
The restriction imposed in subsection (3) of this section does not apply to this case, and the further limitation imposed by this Act on the powers of the High Court is only with regard to the punishment for Contempt of Court. Section 10 of the Ordinance imposes the same restriction on the power, of the Court of Inquiry in the exercise of those powers which a High Court has in punishing contempts of itself. In view of my conclusion that awarding costs does not amount to the: infliction of punishment section 3 of the Contempt of Courts) Act cannot be said to have been contravened by the order under appeal.
It was then contended that what was alleged in the appel lant's article had nothing to do with the inquiry regarding the disturbances and therefore, no question of contempt of the Court of Inquiry arose. No doubt the article had not specifically referred to Punjab Disturbances but as pointed out, in the order of Court of Inquiry the observation made in the article clearly related to a subject which was within the scope of the Inquiry. The Court of Inquiry as already stated. had to investigate with regard to the responsibility for the disturb ances as well as the adequacy of the measures taken by the Provincial Government to prevent those disturbances. That being so, the subject dealt with be the article cannot be said to be not connected with the work of the Tribunal.
I would, therefore, dismiss this appeal.
‑I agree that the appeal be, dismissed. I might, however, add that in my opinion they Court of Inquiry; in dealing with contempt proceedings, was acting judicially and as such, its order could be the subject of an appeal to this Court. But since no punishment was imposed, no interference is called for ; the order as to costs was merely ancillary indicating no more than that there were good reasons for moving the Court to issue notice of contempt.
A. H. Appeal dismissed.
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