The Institution And Status Of The Punjab Chief Court

THE INSTITUTION AND STATUS OF THE PUNJAB CHIEF COURT THE INSTITUTION AND STATUS OF THE PUNJAB CHIEF COURT By ZAKA-UR-RAHMAN KHAN, B.Sc., M.A., LL.B. The telegram of T. H. Thornton D.C.L. Secretary to Government Punjab despatched to the Secretary Government of India on the 20th of February, 1866, ushered "The Punjab Chief Court has opened on the 19th instant." The judicial precursor of this Chief Court was the Court of the Judicial Commissioner sitting at the apex of a hierarchy of Courts established by the Punjab Courts Act (Act XIX of 1865). This is pointed out by section XLV of Act IV of 1866 (which created the Chief Court) which laid down thus: "The Chief Court shall have jurisdiction in all proceedings pending in the Court of the Judicial Commissioner of the Punjab at the time of the constitution of the Chief Court; and all previous‑proceedings of the Court of the said Commissioner shall be dealt with as if the same had been had in the Chief Court." Mr. Justice Henry Adolphus Byden Rattigant (He became subsequently the first Chief Justice of the High Court of Judicature at Lahore by Letters Patent.) pointed out thus: "The Chief Court of this Province was first constituted and its jurisdic tion and power were conferred and defined by Act IV of 1866, which was an Act passed by the Governor‑General in Council at meetings for the purpose of making laws and regulations. As I shall presently point out, this authority was an expansion of the Governor‑General's executive council and was constituted by the Indian Councils Act, 1861, in supersession of the legislative body established under the Charter Act of 1833 (3 and 4 Will. IV C. 85). The official title given to this authority is cumbrous and for the purposes of convenience and brevity Y shall hereafter refer to it as t he Governor‑General in Legislative Council. By section 2 of the Act above mentioned it was provided that the Chief Court was to consist of two or more Judges to be appointed by the Governor -General in Council, and that it was to be `the highest Court of appeal from the Civil and Criminal Courts in the Punjab', and, subject to certain provisions, was to be `the only Court exercising appellate jurisdiction in such cases . . . as are subject to appeal to the highest Civil and Criminal Court in the Punjab by virtue of any law or practice now in force or as shall become subject to appeal to the Chief Court by virtue of any law hereafter made by the Governor‑General in Council'.( 50 P R 1907 (F B) See pp. 206‑207, (Civil).)" As a matter of fact the Punjab Chief Court was envisaged by an Act of the Governor‑General of India in Council entitled Act No. XXIII of 1865. The draft of its Bill `to amend the constitution of the Court of the Judicial Commissioner of the Punjab and its Dependencies' was published in the Gazette of India of 24th December, 1864. It was criticised by Mr. A. A. Roberts, the last Judicial Commissioner of the Punjab in his letter (Letter No. 23/142 dated 20‑1‑1865) addressed to the Secretary to Government Punjab. In his words, inter alia, it reads thus: "Lastly, I take exception to those portions of sections . . . . . which provided for a reference to the High Court of Judicature at Calcutta in the event of a difference of opinion between the two Judges on a point of law or of usage having the force of law. I consider that the reference, which should only be allowed in cases heard in the exercise of the original jurisdiction of the Chief Court should be made to the Financial Commissioner of the Punjab. He is always an officer of great judicial experience, and would certainly be in a better position to determine a local usage having the force, of law than the High Court at Calcutta. Where the difference of opinion is in a case on appeal, the decision of the lower Court should always be upheld . . . . . . The Financial Commissioner would thus for special points of reference hold the position of a third Judge of the Chief Court." A perusal of Act XXIII of 1865 shows that the recommendation of Mr. Roberts was not accepted. Consequently, the Court which originally consisted of only two Judges, was thus left in an embarrassing position, and, record bears it out that, many a time the dissentient Judge had to reluctantly concur in the judgment and order proposed by his brother Judge. ACT IV OF 1866 Act No. XXIII of 1865 which was `an Act to amend the constitution of the Chief Court of Judicature in the Punjab and its Dependencies was passed by the Governor‑General of India in Council and received the assent of the Governor‑General on the 17th April 1865. Its section 53 reads as under "This Act shall come into operation on such day as the Governor -General of India in Council shall fix by a notification published in the Gazette of India." It appears that this Act was discovered to be still‑born, and was, therefore, re‑enacted in the same form, as, Act No. IV of 1866 which received the assent of the Governor‑General on the 16th February, and the Governor -General brought the Act into operation by Notification No. 1583 dated 17‑2‑1866 made on page 312 of the Gazette of India of the even date. Its section II is reproduced as below "The Court constituted under this Act shall be styled the Chief Court of the Punjab, and shall consist of two or more Judges, who shall be appointed by the Governor‑General of India in Council, and of whom one at least shall always be a Barrister of not less than five years' standing Provided that the person who at the time of the constitution of the Chief Court shall be the Judicial Commissioner of the Punjab, shall become a Judge of such Court without further appointment for that purpose." On 17th February a telegram was received by Secretary to Government Punjab, Lahore, from Secretary to Government of India, Home Department Calcutta, which pointed out thus: "Chief Court Bill passed as Act number four. Notification issued bringing Act into operation from this date (Seventeenth). Under section two Mr. Roberts Judicial Commissioner becomes a Judge of the Court. Mr. Boulnois who is now at Lahore appointed a Judge. The declaration of the Judges required by section five must be received at once. Form of declaration same as in Act twenty three of sixty five." Mr. A. A. Roberts Judicial Commissioner who had been directly appointed a Judge by section II of Act IV of 1866 (cited supra) was in doubt as to necessity of making declaration in his case, because, that could also affect his seniority. So he made the following telegram to the Secretary, Home, of the Supreme Government, on the 18th February 1866: "Your telegram about the Chief Court received. Will it be necessary for Mr. Roberts, who becomes a Judge under section two of the Act, without further appointment, to make the declaration prescribed in section five. Can the Act be considered in force in the Punjab before a copy has been received." The telegraphic reply sent to Secretary to Government Punjab on 19th February was as follows "Yes Mr. Roberts must make declaration and Act is in force in Punjab before it reaches. It is same as former Act but repeals recent Act as to Financial Commissioner." DECLARATION There was no oath but a declaration to be made or subscribed. Section V of Act IV of 1866 prescribed thus: "Previously to entering on the execution of the duties of his office, every Judge appointed under this Act shall make or subscribe the following declaration before the Lieutenant‑Governor or such authority or person as he may commission to receive the same:‑ `I, A. B., appointed Judge of the Chief Court of the Punjab, do solemnly declare that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment." Here it is of interest to note that the commissions under section V were issued separately to Messrs Roberts and Boulnois by the Lieut.‑Governor and they received in pursuance thereof the declarations of one another. Further, it is to be noted that the words used in the above section are not `every Judge to be appointed', but, `every Judge appointed under this Act', and they indicate that the person concerned became a Judge before he took the declaration. There being no provision for a Chief Judge, the Chief Court commenced with a strength of only two Judges. The first Judge Mr. A. A. Roberts was appointed by the statute creating the Chief Court, and the second Judge Mr. Charles Boulnois was appointed telegraphically. Both the learned Judges entered office on the same day. Telegram No. 553 despatched from the Judges of the Chief Court to Mr. T. H. Thornton Secretary to Govern ment Punjab, on 19th February 1866 reads as follows "We have this day entered on the execution of our duties under the said Act." TITLE "HONOURABLE" The next day the Chief Court was opened, that is to say on the 20th February. Secretary to Government Punjab telegraphed to the Secretary, Home, India, inquiring: "Are the Judges of the Punjab Chief Court entitled to the prefix of `Honourable'." The telegraphic reply dated 21st February says: "Your telegram of twentieth received. The prefix Honourable not to be used. Judges will simply be called Mr. Justice Roberts or Mr. Justice Boulnois as the case may be." OFFICE OF THE CHIEF JUDGE In `A History of the Development of the Judiciary in the Punjab 1846‑1884)' (Monograph No. 2 of Punjab Government Record Office Publications, by Ram Lal Handa. General Editor: H. L. O. Garrett I. E. S. Keeper of the Records of Government Footnote on p. 28 refers.), the Editor's note reads thus: "The last Judicial Commissioner, Mr. A. A. Roberts was sworn in as the first Chief Judge and the first puisne Judge sworn in at the same time was Mr. C. Boulnois, Bar‑at‑Law." This does not correspond with factual position in so far as there was no provision for a Chief Judge in the statute of the Chief Court namely Act IV of 1866. What can be spelled from its relevant provisions is the office of Senior Judge instead of a Chief Judge. The section III of the Act laid down thus: "The Judges of the Chief Court shall have rank and precedence in the Court according to the seniority of their appointments as such Judges." Clause 4th of section XLVI said: "If the case be heard by the Judges in the exercise of the original jurisdiction of the Chief Court, and the difference of opinion be on a question of fact, the opinion of the Senior Judge shall prevail, and he shall pronounce his decision as the‑ decision of the Court." The Punjab Record of the Chief Court shows that upto the end of 1895, the Judge styled and named as the `Senior Judge' was the controlling authority of the Court. The title of the Chief Judge was created by Act No. XIX of 1895 of the Governor‑General of India in Council which received his assent on the 19th of October 1895. Its section 1 provided as below: "The Governor‑General in Council may in his discretion, from time to time, appoint one of the Judges of the Court to be the Chief Judge . . . . ." It appears that on the recommendation of the Government of Punjab, Mr. Justice Roe, the last `Senior Judge', was appointed by selection as the first Chief Judge by the Governor‑General in Council, under the above Act. After the office of the Chief Judge was statutorily sanctioned, we find the learned Judges striving for the improvement of his position in the following words: "The Judges need hardly say that their recommendation that the Chief Judge. should receive higher pay and pension than the other Judges is based in no way on any change of title. It was made long before any such change was contemplated, and was based simply on the fact that the duties of the Senior or Chief Judge are even more important than those of his brother Judges. This fact has been fully recognized by the Government in the passing of the new Act. That this recognition should be marked by a distinction as regards pay and pension seemed to the Judges so obviously logical that in their former representations they considered it unnecessary to dwell at any length on the point. The principle is recognized in every High Court in India, and even in the Presidency Small Cause Courts; it is, the Judges believe, equally recognized in England, and it is one which applies 'not merely to Judicial, but also, to all officers where one out of several officers exercising otherwise equal powers has a controlling authority over the others, and the Judges confess that they are unable to understand in what way the principle is objectionable. (Letter No. 239 G dated Lahore 16‑1‑1896 from Registrar, Chief Court to Chief Secretary Government Punjab‑Proceedings of June 1896‑Nos. 1‑2 of Home Department Judicial).)" The Judges recommended the pay of the Chief Judge at Rs. 4,000 per mensem with 200 extra pension on five years' service. The note dated 21‑5‑1896 of the Chief Secretary for the perusal of the Lieut‑Governor was as below: "Would His Honor recommend definitely at the end of paragraph 2 of the draft that the pay should be Rs. 4,000 per mensem and the extra pension 200? The pension is not mentioned in His Honor's orders." And the Lieut‑Governor directed the next day thus: "I agree to the definite recommendation of Rs. 4,000 and it may be added; but I would say nothing about the pension. I don't see why a Judge should get a higher pension than a Lieutenant Governor or Member of Council, who draws higher pay." THE STATUS OF CHIEF COURT The harbinger of the High Court of Judicature at Lahore, namely the Chief Court was lower in status. According to section XLVI of Act IV of 1866 which dealt with the "procedure in case of difference of opinion between Judges when Court consists of only two", on an appeal on a question of law, the case could be referred to a Full Bench of the High Court of Judicature at Calcutta. The Chief Court was set up by an Act of the Indian Legislature and the Judges were appointed by the Governor‑General and could be removed by him. Section IV of the statute of the Court said: "The Judges of the Chief Court shall hold their office during the pleasure of the Governor‑General of India in Council." Section 102 (1) of the Government of India Act (and repeated in G. I. Act, 1919) was that "Every Judge of a High Court shall hold his office during His Majesty's pleasure." It was only subsequently that the tenure was transformed from `during His Majesty's pleasure' to `during fixed period' by the Government of India Act, 1935. By section 220 (2) of this Act, a Judge of the High Court was remov able not arbitrarily, but on stated grounds of misbehaviour or of infirmity of mind or body after Crown's reference to the Judicial Committee of the Privy Council and on the latter's recommendation. The pay of the Senior Judge and Puisne Judges (The Punjab Civil List of 1919 shows that the first Chief Justice of the High Court, Lahore, Hon ble Sir Henry Adolphus Byden Rattigan was appointed at a monthly pay of Rs. 5,000. The monthly pay of each other Judge is shown to be Rs. 4,000.) was the same, i.e., Rs. 3,500 per mensem, but when the title Senior Judge was changed to Chief Judge his pay was raised to Rs. 4,000 per mensem. The pay of the Chief Justice (Charles Boulnois L.L.B, Bar‑at‑Law, the second Judge of the Chief Court entered his office on Feb. 19, 1866, at a monthly pay of Rs. 3,500 (See p. 42 of The Punjab Civil List of 1‑1‑1872: Punjab Printing Co., Ltd., Lahore).) of the High Court was, and still remains, Rs. 5,000 p.m., whereas those of the Puisne Judges continues to be Rs. 4,000 p.m. In a printed representation dated 27‑2‑1894 addressed to the Chief Secretary to the Punjab Government, Har Kishen Lal Secretary to the Punjab Bar Association wrote thus: "Again, the inferior status of the present Chief Court, as compared with any of the Chartered High Courts, cannot but act prejudicially in several ways. It prevents, for instance, the decision of the Chief Court from receiving the respect which is accorded to decisions of a Chartered High Court, and any tendency of this kind is calculated to affect the authority of the Judges, and should, as far as possible, be guarded against. It also prevents Advocates from enjoying the full privileges of their status, inasmuch as while Advocates of Chartered High Courts are exempt from filing powers‑of‑attorney (Section 39, C. P. Code), those of the Chief Court are not so. (Proceedings for Nov. 1894, Nos. 4/14, File No. 27‑Home‑Judicial.) " The Chief Court was not expressly constituted a Court of Record; doubtlessly, it was a Superior Court. Halsbury (Halsbury's Laws of England, Vol. 9, 3rd edn, p. 349.) mentions that: "Prima facie no matter is deemed to be beyond the jurisdiction of Superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court." The High Court of Justice of England has laid down thus: "There is another test, well recognised by lawyers by which to distinguish a superior from an inferior Court, namely whether in its proceedings, and in particular in its judgment, it must appear that the Court was acting within its jurisdiction. This is the characteristic of an inferior Court, whereas in the proceeding of a Superior Court it will be presumed that it acted within its jurisdiction unless the contrary should appear either on the face of the proceedings or aliunde (L R (1948) 1 K B 195 at 205.)." There is another distinction between a Superior Court and an inferior Court; the former has the power of delimitation of jurisdictions finally in the judicial field. Moreover, as all its orders are presumed to be within jurisdiction therefore all persons and authorities thereby addressed to must submit in the first instance. By clause 1 of its Letters Patent, the High Court at Lahore, was constituted to be a Court of Record. Cross. and Hall have observed that: "A `record' is technically a document which proves itself in Court without evidence. (Cross & Hall: The English Legal System, 1964, edn. p. 86, Footnote.)" Halsbury is of the same view when laying down that: "The proceedings of a Court of Record preserved in its archives are called records, and are conclusive evidence of that which ‑is recorded, therein. (Halsbury's Laws of England, 2nd edn., Vol. 8, p. 527.)" In G. C. Cheshire's edition of the Stephen's Commentaries on the Laws of England (See Vol. I, 19th edn., pp. 94‑95.) it is set out that: "A Court of Record is one whose acts and judicial proceedings are enrolled for a perpetual memorial and testimony: and the rolls are called the records of the Court. These records are of such high authority that their truth cannot be called in question in any Court . . . . . The characteristic of a Court of record is that it has power to fine and imprison for contempt of its authority, so that if a new Court possessing this power is set up it ipso facto becomes a Court of Record. But in some Courts of record . . . . this power is limited to contempts committed in facie curiae; , . . . On the other hand, the superior Courts of Record have a far greater jurisdiction in contempt of Court, e.g., any person who publishes, no matter where, any matter likely to prejudice the just course of proceedings before them, may be fined and imprisoned for contempt." Whereas High Court at Lahore was a superior Court of Record, the Chief Court, its ancestor, was not. The latter's statute is silent on the point of contempt of its authority. The statutorily expressed aim at establishing a Chief Court in the Punjab is given by the preamble of the `The Punjab Chief Court Act, 1866', which is couched in the following words: "Whereas it is expedient to amend the constitution of the Court of the Judicial Commissioner of the Punjab and its Dependencies, and to invest the Judges of the Court constituted under this Act with an original jurisdiction for the trial of certain Civil and Criminal cases ; . . . ." The Government felt the urgent need of obviating heavy expenditure it was incurring in sending the European British subjects for trial at Calcutta by the High Court. This power was now expressly conferred on the new Chief Court. It was provided by section XXXIII of its statute that section 380 Cr. P. C. would not apply to sentences of Chief Court in the exercise of its original Criminal jurisdiction, and the punishments of death or transportation were not liable to be confirmed by any High Court. Another aim appears to be the necessity of securing uniformity and certainty in law through its authoritative interpretation by the Chief Court. The Chief Court had the power to remove to it a case from any Civil Court under its superintendence and try itself as a Court of original civil jurisdiction. The Court also had the power of revision. Like the case of any High Court, appeals against its judgments, and orders lay to the Judicial Committee of the Privy Council. By section XLIV of its statute, the Chief Court was given power analogous to that given to any High Court, namely power to make `general rules for regulating the practice and proceedings' of itself as well as of Courts subordinate to it. With respect to it, the Chief Court issued circulars. In yet another respect the Chief Court resembled Chartered High Courts. By section X of its statute it was empowered to license generally or specially the pleaders, and, by section XI it could revoke the licence and could suspend any person from appearing or acting as a Pleader in any proceeding. Although the statute of the Court was silent on the point, yet the rulings of the Chief Court were printed from its inception in 1866 onwards. First Volume of the Punjab Record (1866) shows that it was printed and published by the Punjab Printing Co., Ltd. (which also printed the Punjab Civil Lists). Notwithstanding all that the Chief Court was deprived of the privileges, of a High Court. The point is elucidated by contrast if one refers to section 219 of the Government of India Act, 1935, which declared that the Chief Court in Oudh and the Judicial Commissioner's Courts in the Central Provinces and Berar, in N. W. F. P. and in Sind were to be `deemed to be `High Courts for the purposes of that .Act. CONCLUSION The upshot of the above findings is that the Chief Court of the Punjab enjoyed a uniquely anomalous legal status inasmuch as it possessed all the powers and exercised all the functions of a High Court established by Royal Charter, its Judges were selected from the same classes, namely, the covenanted civilians, barristers and pleaders, who had the same duties and disposed of work not less voluminous, enjoyed the same vacation and privilege leave, as the Judges of High Courts, and yet the Chief Court was endowed with a comparatively subordinate status and few of privileges of such a Court. WORKING OF THE SUPREME COURT OF PAKISTAN [DACCA SESSION 24TH OCTOBER‑---18TH NOVEMBER 1966] The winter session of the Supreme Court in Dacca this year commenced from the 24th October 1966, and ended on the 18th November 1966. The period included 19 working days. The Full Court consisted of the Chief Justice, Mr. Justice S. A. Rahman, Mr. Justice Fazal-e‑Akbar, Mr. Justice Hamoodur Rahman and Mr. Justice Muhammad Yaqub Ali. The entire file of cases ready for hearing was cleared during this session. Civil and criminal petitions to the number of 95 were heard, and leave was granted in 33 cases, 62 petitions were dismissed, 4 were adjourned for further hearing, and only 5 unripe petitions were left pending. Three review petitions were heard. All ripe civil appeals, numbering 21 were heard, leaving 62 unripe appeals pending. In 6 cases the appeals were allowed. Only one unripe criminal appeal remained pending out of 61 at the start of the session.. Fifty of these arose out of the Bhairab Gang case, and were heard by a Bench of 3 Judges for 5 full days, judgment being reserved. The Court worked in two Benches whenever possible to ensure that the docket was cleared. The Court is expected to visit Dacca next in May, 1967. The table below shows figures of disposal by the Court, as well as the average duration of decided cases. Pending at the conclusion of last Session Total for disposal Disposal Pending disposal Sr. No. Cases Ripe Unripe Instituted since the last Session Ripe Unripe Allowed Dismissed Judgment reserved Total disposal Adjourned After Hearing Ripe Unripe Average 1. Civil Petitions. ---- 8 69 72 5 24 45 ---- 69 3 ---- 5 96 2. Criminal Petitions. 1 2 24 27 ---- 9 17 ---- 26 1 ---- ---- 96 3. Civil Review Petitions. 1 ---- 2 3 ---- ---- 2 1 3 ---- ---- ---- 523 4. Civil Appeals. 16 50 18 22 62 6 13 2 21 1 ---- 62 121 5. Criminal Appeals. 53 1 7 60 1 4 6 50 60 ---- ---- 1 116