P L D 1976 Supreme Court 548 (PLP)

DORAB PATEL, J.

In October 1959 the appellants and some other persons -made a complaint to the Sector Commander, Martial Law Administrator, Lahore, that the respondents were women of doubtful antecedents and morals. The Sector Commander forwarded the application to the police for investiga tion, and it would appear that the appellants had also addressed other applications to the Ilaqa Magistrate, Lahore in which they had alleged that the respondents were using the premises in which they lived as a brothel. Therefore, the Corporation Magistrate, Lahore issue a notice to the respondents under section 330 of the Lahore Corporation Act, 1941, calling upon them to discontinue the use of their house as a brothel. The respondents showed cause and evidence was produced by both the parties in support of their respective contentions. The Corporation Magistrate held that the allegations against the respondents were false, and by his order dated 23-12-1960 he recalled the notice issued to the respondents. In March 1961 the respondents filed an application before the Corporation Magistrate that action should be taken against the persons who bad filed a false case against them and, in the events that happened, a complaint was filed under section 211, P. P. C. against the appellants and one Malik Riazuddin on 16-5-1961 on the ground that the accused had filed a false case against the respondents and bad "furthered the criminal proceedings by making false statements on solemn affirmation before the Court in support of the false charge . . . ." This application was heard and allowed by the learned District Magistrate, Lahore, who by his order dated 28-5-1964, convicted the five accused before him under section 211, P. P. C. and sentenced them to imprisonment till the rising of the Court and to a fine of Rs. 2,000 each or in default six months' imprisonment. The appellants and Malik Riazuddin filed an appeal in the Sessions Court against their convictions and the respondents filed a revision petition in the Sessions Court, Lahore in which they prayed that the case be referred to the High Court for enhancement of the sentence passed against the appellants and Malik Riazuddin. The appeal and the revision were heard together by the learned Sessions Judge, Lahore. The appellants have not filed copies of the pleadings in the Sessions Court but their own contention appears to have been that they had merely brought certain facts to the notice of the competent authorities, therefore, they were not responsible for the proceedings taken against the respondents by the competent authorities. This plea was rejected by the learned Sessions Judge, who held that the appellants and Malik Riazuddin had been responsible for the proceedings instituted against the respondents. Therefore, the question was whether the proceedings thus instituted fell within the mischief of section 211, P. P. C., and the contention of the respondents appears to have been that the appellants were guilty under section 211, P. P. C. because they bad instituted false criminal proceedings against them. The respondents had relied, in support of this contention, on a judgment of a Full Bench of the Lahore High Court in Teja Singh v. S. Kishan Singh (P L D 1949 Lab. 477). Ch. Aziz Ahmad Waraich, the learned Sessions Judge held in a very able judgment that Teja Singh's case was distinguishable on the facts. He further held that proceedings under section 330 of the Lahore Corporation Act were not criminal proceedings within the meaning of section 211, P. P. C , therefore, by his judgment dated 4-10-1965 he allowed the appeal of the appellants and rejected the revision petition of the respondents. The respondents went in a revision to the Lahore Seat of the West Pakistan High Court against this judgment of the learned Sessions Judge. The revision was heard after many years by a learned Judge of the Lahore High Court, who held that the judgment in Teja Singh's case was not distinguishable, therefore, he allowed the revision and remanded the case for hearing to the Sessions Court. The appellants filed a petition for leave against this judgment, and leave was granted to examine the validity of the view taken by the Lahore High Court in Teja Singh's case, and also to examine whether, in the events that had happened, it could be said that the appellants had initiated the criminal proceedings against the res pondents. I would first dispose of Sh. Shaukat Ali's arguments on the second question for which leave was granted. He submitted that as the appellants had merely made a representation to the competent authorities, they could not be held responsible for the action taken against the respondents by the competent authorities in the exercise of their discretion. The submission is not even factually correct, because the complaint filed against the appellants and Malik Riazuddin states that apart from the representation to the Martial Law Authorities, the appellants had also made several applications to the Ilaqa Magistrate. As those applications have not been filed an adverse inference has to be drawn against the appellants and for the purpose of this appeal I would assume that the proceedings taken against the respondents under section 330 of the Lahore Corporation Act, 1941 (hereinafter called the said Act) were taken at the instance of the appellants. As the allegations made by the appellants against the respondents have been found to be false the question before us is whether the proceedings instituted by the appellants fell within the mischief of section 211, P. P. C. Section 211, P. P. C. reads;

"

211. Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceedings against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both ; and Whatever be the precise scope of this section, a person who falsely charges another person, in the circumstances specified in the section, of having committed an offence is guilty under the section. Therefore, the question is of the meaning of the word 'offence', and according to section 40, P. P. C., the word 'offence' in section 211, P. P. C. "denotes a thing punishable under this Code or under any special or local law as hereinafter defined. . ." As the running of a brothel is not an offence under the Penal Code, it is necessary to .examine whether it is an offence under the said Act. Section 330 of the said Act reads; "

330. On the complaint of the Chief Executive Officer or of three or more inhabitants of the City that a house within the limits of the City is used as brothel, or by disorderly persons of any description, to w, the annoyance of the respectable inhabitants of the vicinity or that any such house is used as a brothel in the neighbourhood of a canton ment or of an educational or charitable institution or boarding house, or of any place of worship, any Magistrate of the first class having jurisdiction in the place where the house is situated may summon the owner or occupier of the house, and on being satisfied that the house is so used and that it is a source of annoyance or offence to the neigh bours, or that it is in the neighbourhood of a cantonment or of an educational or charitable institution or boarding house, or of any place of worship, may order the owner or occupier to discontinue such ,use of it; and if he fails to comply with such order within five days, may impose upon him a fine not exceeding twenty-five rupees for every day thereafter that the house shall be so used." Even on proof of the fact that the owner or occupier of a house is running brothel, or is using his house in such a manner that it is a source of annoyance or 'offence' to his neighbours, such an owner or occupier can only be directed to discontinue "such use" of the house. That he can be punished for disobey ing the order passed by a Magistrate under the section is another matter, but this does not mean that proceedings under the section are proceedings for an offence or a crime. It is true that the section itself uses the words "source of . . . . . . .offence to the neighbours", but the word 'offence' here has not been used in the sense of an offence under the law. This is clear from the provisions of Chapter XXXVIII of the said Act, which deal with the punishment of offences under the said Act and specify the contraventions of the said Act which amount to offences. As a contravention of section 330 is not an offence under this Chapter, proceedings under the section cannot amount to bringing a charge of an offence within the meaning of section 211, P. P. C. However, section 211, P. P. C. also speaks of the institution of criminal proceedings, and the view taken in the judgment under appeal is that the appellants were guilty under section 211, P. P. C. because they bad instituted criminal proceedings against the respondents. With respect, as proceedings under the section are not proceedings for the prosecution of a crime or of an offence, either under the general law or under the said Act, it seems a contradiction in terms to describe such proceedings as criminal proceedings. The attention of the learned Judge was drawn to this aspect of the case, but he took the view that proceedings under section 330 of the said Act were criminal proceedings because they had to be instituted in the Court of a Magistrate, which was a criminal Court under Chapter II of the Criminal Procedure Code. But whatever be the forum in which proceedings under the section have to be instituted the question is of the construction of the expression 'criminal proceedings' in section 211, P. P. C. and the meaning of the adjective 'criminal' in this expression cannot be altered and extended on account of the forum in which proceedings under a different Statute namely the said Act are required to be filed. Now, according to the Oxford Dic tionary, the meanings of the adjective 'criminal' are: "of the nature of or involving a crime; more generally, of the nature of a grave offence, wicked" and "relating to crime or its punishment". As the mischief which falls under section 330 of the said Act is not an offence either under the said Act or under the Penal Code, with respect, the view taken by the learned Judge of the Lahore High Court is contrary to the plain meaning of the expression "criminal proceedings". However, in taking this view the learned Judge had relied on the majority view in a Full Bench of the Lahore High Court in Teja Singh's case, therefore, it is necessary to examine this judgment. In Teja Singh's case, the petitioner had laid an information against the respondent and others under section 107 of the Criminal Procedure Code. As the application was rejected the respondent sought the petitioner's prosecution under section 211, P. P. C. and the question whether proceedings under sect on 107, Cr. P. C. amount to criminal proceedings within the meaning of section 211, P. P. C. was referred to a Full Bench of the Lahore High Court. As observed by Cornelius, J. as he then was, proceedings under section 107, Cr. P. C. "do not provide for the imposition of punishment directly upon the person against whom a proceeding is taken, but only for a demand for security". Similarly, the person proceeded against is not the accused in that case as in a criminal trial, therefore, the petitioner's contention was that the proceedings instituted by him were not criminal proceedings. This submission was supported by earlier judgments of the Lahore High Court, and further as proceedings under section 107, Cr. P. C. are somewhat similar to those under section 145, Cr. P. C., the petitioner had also relied on a judgment of the Bombay High Court In re: Pandurang Govind (I L R 25 Bom. 179), in which it was held for the purpose of section 526, Cr. P. C., as it then stood, that proceedings under section 145, Cr. P. C. were not criminal proceedings. The respondent, on the other hand, had relied on a series of judgments of the Calcutta and Madras High Courts according to which proceedings under section 107, Cr. P. C. were criminal proceedings. The learned Judges of the Full Bench preferred the Calcutta and Madras view to that of the Bombay High Court and the earlier view of their own High Court. But there was a cleavage of opinion on the con struction of the expression 'criminal proceedings', and Muhammad Jan, J. observed:

"The words 'criminal proceedings' in section 211, Indian Penal Code, should be given their ordinary meaning. In the Oxford English Dictionary the words 'criminal' is stated to mean 'relating to crime or its punishment'. It is not confined only to the punishment of crime but can relate to its prevention also. I am of the opinion, that proceedings under Chapter VIII of the Criminal Procedure Code are covered by section 211, Indian Penal Code." However, Cornelius, J. as be then was, who pronounced the majority opinion, observed at p. 487:- " . . . The feature of a criminal proceeding, which distinguishes it from a civil proceeding, is that it lies in a Criminal Court under the adjective law, while a civil proceeding lies in a Civil Court." As the learned Judge in the judgment under appeal has followed this view I would quote here the reasons given by Cornelius, J. for his construction of the expression 'criminal proceedings'. The relevant passage reads; "Thus both preponderance of authority and the argument of priori lead to the conclusion that the second of the possible alternative meanings of the expression 'criminal proceeding' is the true meaning i.e. a proceeding which lies under the law of procedure in a Criminal Court and which is in accordance with some requirement of or is performed under some power conferred by the relevant procedural provisions. From the point of view of the interpretation of a penal provision like section 211, Indian Penal Code, this meaning possesses the great advantage over the other alternative, that it enables the law to be applied with complete certainty." Whilst his Lordship's view fully supports the view taken in the judgment under appeal, with the utmost respect and humility. I am not able to agree with the view of Cornelius, J. Taking first the question of the "preponde rance of authority", this preponderance of authority was only in support of the proposition that proceedings under the Criminal Procedure Code in a. Criminal Court are criminal proceedings. But the proposition that pro ceedings in a Criminal Court are automatically criminal proceedings is al different and wider Proposition than that laid down in the Calcutta and Madras cases and this wider proposition did not arise for consideration in the Calcutta and Madras judgments on which Cornelius, J. relied. Further, with the utmost respect, I have to observe that this wider proposition was also not necessary for the decision in Teja Sing's case because the object of proceedings under section 117, Cc. P. C. is the prevention of crime and as rightly pointed out by Muhammad Jan, J. (I say so with respect), such proceedings are necessarily criminal proceedings. However, Cornelins, J. also based his conclusion on first principles and this had reference to the views of two eminent Anglo-Saxon Jurists. Cornelius, J. referred to a passage from the great English Jurist Austin, according to which the difference between crimes and civil injuries was: "the difference between the modes wherein they are respectively pursued". His Lordship then pointed out that Austin's observations had reference to En-dish law which was different in some material particulars from that in the sub-continent. His Lordship then quoted with approval a passage from Markby's Elements of Law (1885 Edition), which reads; "Liability is not unfrequently divided into civil and criminal liability. This classification is not based upon any distinction in the nature of two kinds of liability, but upon the difference in the tribunal in which the party liable is proceeded against. If the Court where the party is proceeded against be what is called a criminal Court or Court of criminal jurisdiction the liability is considered to be criminal, and the breach of duty is called a crime or an offence. If the Court in which the proceedings are taken by a civil Court, or Court of civil jurisdiction, the liability is considered to be civil and the breach of duty is called a civil injury." Much water has flown under the bridges since the days of Mark by, and if the question whether proceedings is any particular case are of a civil or of a criminal nature is decided solely by the forum in which they have to be instituted a prosecution under the Industrial Relations Ordinance. 1969 would not amount to criminal proceedings even though it might entail a sentence of imprisonment of four years and a fine of Rs. 10,

000. Similarly, on Markby's view, after the abolition of basic democracies, divorce suits under the Muslim Family Laws Ordinance, 1961 became criminal proceedings in those Provinces in which the functions of the Chairman of the Union Councils were delegated to Magistrates, after the abolition of Union Councils. To say the least, the consequences of applying Markby's view to the powers confer red on our civil and criminal Courts are somewhat startling, but this is no reflection on the learned Author, because his view had reference to the Jurisprudence of the late Nineteenth Century. That view has been rendered obsolete by the passage of time and the advent of the welfare state, which has effected changes in our legal institutions which could not have been fore-seen in Markby's days. These changes have not escaped the attention of subsequent Jurists and it would be sufficient to refer her; to the views of two eminent Jurists, Salmond and Kenny. In his classic treatise on Jurisprudence (10th Edition) Salmond points out that one distinction between civil wrongs and crimes was that civil justice was administered in one set of Courts and criminal justice "in a some what different set". This was, of course, the view of Austin and Markby and after approv ing of it the learned Author states;- "The outcome of the proceedings, too, is generally different. Civil proceedings, if successful, remit in a judgment for damages, or in a ,, judgment for the payment of a debt or (in a penal action) a penalty, or in an injunction or decree of specific restitution or specific perfor mance, or in an order for the delivery of possession of land, or in a decree of divorce, or in an order of mandamus, prohibition or ertiorari, or in a writ of habeas corpus, or in other forms of relief known distinctively as civil. Criminal proceedings, if successful, result in one of a number of punishments, ranging from hanging to a fine, or in a binding over to keep the peace, release upon probation, or other outcome known to belong distinctively to criminal law." The learned Author further observes that many writers on Jurisprudence had not been content with the traditional procedural distinction between crimes and civil wrongs and had suggested other distinctions, which are then discussed by the learned Author, and I would only observe that there is very great cleavage of opinion amongst the Jurists on the definitions of civil wrongs and crimes. Kenny in the 17th Edition of his treatise on Criminal Law observes at page 5; "So long as crimes continue (as would seem inevitable) to be created by Government policy the nature of crime will elude true definition. Nevertheless it is a broadly accurate description to say that nearly every, instance of crime presents all of the three following characteristics: (1). that it is a harm, brought about by human conduct, which the Soveriegn power in the State desires to prevent; (2) that among the measures of prevention selected is the threat of punishment; (3) that. e' legal proceedings of a special kind are employed to decide whether the person accused did in fact cause the harm, and is, according to law, to be held legally punishable for doing so" It is significant that according ' to Kenny the forum in which criminal proceedings are instituted, is not relevant to the question of what constitutes, a crime. I now turn to Halsbury. Halsbury.in Vol. 10 of the Third Edition of Laws of England writes; "

501. Definition of crime.

Criminal Law and procedure deal with the nature, prosecution, and punishment of crime. A crime is an unlawful act or default which is an offence against the public, and renders the person guilty of the act or default liable to legal punishment (a). While a crime is often also an injury to a private person, who has a remedy in a civil action, it is as an act or default contrary to the order, peace, and well-being of society that a crime is punishable by the State (b).

502. Distinction between criminal and civil proceedings.

Civil proceeding has for its object the recovery of money or other property, or the enforcement of a right for the advantage of the person suing, while a criminal proceeding has for its object the punishment of a public offence (c). Criminal proceedings cannot be used as a means of recovering a civil debt (d) in the absence of express provision to that effect (e)." Thus the common law has not stood still, and the view of Austin and Markby no longer holds the field. However, according to Cornelius, J. the advantage of following Markby'a definition of criminal proceedings was that it enabled "the law to be applied with complete certainty". With the utmost respect and humility, I have to state that the question is of the meaning of the words "criminal proceedings", and in my humble opinion the meaning is plain beyond doubt. However, if I am wrong, at the highest. these words are ambiguous and ac they occur in a penal provision, the ambiguity if any must be construed in favour of the subject. This means that the words must be construed strictly and their scope cannot be enlarged by a reference to concepts of Jurisprudence. I am, therefore, not able to agree with the majority opinion in Teja Sing's care and I hold that proceedings under section 330 of the said Act are not criminal proceedings within the meaning of section 211, P. P. C. Therefore, the appeal is allowed and the convictions and sentence passed against the appellants are set aside. ANWARUL HAQ, J.

I agree. MUHAMMAD HALEEM, J.-I agree. S. A. H. Appeal allowed.,