P L D 1956 (W (PLP)

11. Appeals from the Civil Courts in the Province.

15. Ordinary original criminal jurisdiction‑to the extent to which the Chief Court had such jurisdiction. 17. "Extraordinary original criminal jurisdiction". This obviously refers to cases removed to the High Court.

18. No appeal from the sentence or order of the High Court exercising original criminal jurisdiction "in any criminal trial". (These are now regulated by the Code of Criminal Procedure).

20. Appeals from other Criminal Courts in the Province. Other clauses relating to criminal jurisdiction are not material for our purpose. Now so far as the Letters Patent go, it will be seen that the clauses which have been brought under the head "criminal jurisdiction" do not provide for an appeal to the High Court from any sentence or order passed by the High Court itself. This may be because clause 31 provides for an appeal to the Privy Council (now the Federal Court) "from any judgment, order or sentence of the said High Court made in the exercise of original criminal juris diction", provided the High Court declares the case a fit one for appeal. There is something in clause 10, however, which, although it occurs in the subject relating to civil jurisdiction, makes it possible to argue that it provides for appeal in all cases not excepted by it. It says that an appeal shall lie to the High Court from the judgment of one judge of that Court, (a) not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction, except when the Judge certifies it to be a fit one for appeal, and (b) not being an order made in the exercise of revisional jurisdiction, and (c) not being a sentence or order (i) passed or made in exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, or (ii) in the exercise of criminal jurisdiction. "From other judgments" the right of appeal shall be to the Privy Council, "as hereinafter provided", the reference apparently being to clause 29 which provides for appeal "in any matter not being of criminal jurisdiction, from any final judgment, decree or order . . . . . . made in appeal" or in the exercise of original jurisdiction "from which an appeal shall not lie to the said High Court under the provisions contained in the 10th clause of these presents". Mr. Manzoor Qadir says that if a judgment, sentence or order passed or made by a single Judge does not fall within the four exceptions, an appeal shall lie from it to the High Court. That is true, and clearly the present case does not fall within exceptions (a), (b) or (c) (i). The question is whether it falls under clause (ii); in other words, whether it is an order "in the exercise of criminal jurisdiction". Suppose we omit these words from clause

10. Would there be any danger that in the absence of these words an appeal might be brought to the High Court under this clause from a sentence or order passed by a single judge in a "criminal trial"? There should be no danger, because clause 15 expressly forbids an appeal from a sentence or order "in any criminal trial". But if there was no danger of any such interpretation being placed on clause 10, why were these words added to it? They cannot refer to the "criminal jurisdiction" embodied in clauses 15 to 22: the embargo on appeals in clause 18 is a sufficient answer to any such contention. But clause 18 places the embargo on criminal trials only, and it might well have been argued that other criminal matters decided by a single judge are appeal able under clause 10, which, as Mr. Manzoor Qadir argues, (and we think rightly), provides an appeal in all matters but those which are excepted. We, therefore, think the object of inserting the words "in the exercise of criminal jurisdiction" in clause 10 was to exclude all criminal mattersis from appeal. Clause 10 of our Letters Patent corresponds to clause 15 of Calcutta, and it was pointed out in Shyam Sundar v. Jodhraj (A I R 1948 Cal. 214) that before the amendment of the Letters Patent of the High Court at Fort William in 1919, the words used for "an order made in the exercise of criminal juris diction" were "sentence or order passed or made in any criminal trial" and that "the expression 'criminal jurisdiction' apparently has a wider connotation than a 'criminal trial". It was in the latter context‑when the words used in clause 15 of Calcutta were 'criminal trial'‑that Sargent, C. J. held in Nanivahoo v. Tjarotamdas ((1883) 7 Bom. 5) that an appeal would lie against an order of attachment for contempt under clause 15 of the Letters Patent because such an order had obviously not resulted from a criminal trial. Mr. Manzoor Qadir, however, argued that the words "criminal jurisdiction" referred to the source of power, not to the nature of the jurisdiction exercised. If a thing was made punishable by statute, then the infliction of punishment was in the exercise of criminal jurisdiction. Contempts being punishable in the exercise of inherent jurisdiction, the source of power was the inherent jurisdiction of the Court, and nothing was done in the exercise of criminal jurisdiction. Now it is true that the Contempt of Courts Act does not create the offence of contempt. if it is in relation to the High Court; it only provides a maximum punishment for the offence. But so far as the subordinate Courts go, it does make the act punishable statutorily. Mr. Manzur Qadir's argument would, therefore, mean that if the High Court punishes its own contempt, it does not exercise criminal jurisdiction but if it punishes the contempt of a subordinate Court, it exercises criminal jurisdiction. We do not appreciate this result. Further, statutes make certain things punishable even by a Civil Court, without making them offences, and it has never been said that in punishing those things the Civil Court exercises criminal jurisdiction. We would prefer to say that where an act is an offence, its punishment involves the exercise of criminal jurisdiction. Mr. Manzoor Qadir admitted that judicial authority was agreeable to the view that contempt of Court is an offence but that as to the nature of the 1furisdiction exercised in punishing it, there was a difference of opinion. We should examine some cases in order to appreciate this argument. Perhaps the earliest of these is In re Pollard ((1868) 5 Moore's New Series 110 (131)) where it was held that contempt of Court was a criminal offence and that no person should be punished unless the specific offence charged against him be distinctly stated. In the case of Amrita Bazar Patrika (A I R 1935 Cal. 419), it was said in relation to an order refusing leave to appeal to the Privy Council that contempt by scandalizing the Court. is an offence which by common law is punishable in a summary manner, and that contempt proceedings were not taken in exercise of "original criminal jurisdiction" within the meaning of clause 41 of the Letters Patent (corresponding to clause 31 of the Lahore Letters Patent). Further, the jurisdiction is inherent in a Court of Record, and the proceedings are in some respects quasi‑criminal. In Kapildev Malaviya v. Judges of Allahabad High Court (A I R 1935 All. 811), there was an application for leave to the Privy Council under section 109 Civil P. C. against an order in contempt proceedings, and it was held that the proceedings were in the exercise of inherent jurisdiction and of a criminal nature and that section 109, therefore, did not apply. In A I R 1944 Lah. 196, it was observed that the proceedings, though not criminal, were of a quasi‑criminal nature and the benefit of doubt should be extended to them. In Sukhdev Singh v. Judges of Pepsu High Court (A I R 1954 S C 18E), there was an application for the transfer of a contempt case under section 527 of the Code of Criminal Procedure, and it was held that the Code did not apply because these proceedings were in exercise of a special jurisdiction inherent in a Court of Record and section 1 (A I R 1935 Cal. 419) of the Code excluded special jurisdiction. It will be noticed that these cases were not decided with reference to clause 10 of the Letters Patent. To say that the jurisdiction is inherent or summary is not the same thing as saying that the jurisdiction is not criminal. Inherent jurisdiction and criminal jurisdiction are not mutually exclusive terms. The Judges, in A I R 1944 Lahore 196 did say that the proceedings were not of a criminal nature, but they made only a casual observation in relation to the benefit of doubt. The nearest approach to the subject was made in the Ami ita Bazar Patrika case, where it was held that this was something different from the exercise of "original" criminal jurisdiction for the purpose of appeal to the Privy Council, under clause 31; and as we understand original jurisdiction, quite obviously contempt proceedings do not fall under it. There are other cases, however, where the approach was more direct. In And, a Pal v. Attorney‑General of Trinidad (A I R 1936 P C 141), it was observed that contempts were quasi. criminal acts and that orders punishing them should generally speaking be treated as orders in criminal cases and leave to appeal granted on the well‑known principles on which leave to appeal w criminal cases is given. In O'shea v. O'shea ((1897) 25 Cal. 236), more or less similar phraseology in section 47 of the Judicature, Act, 1873, was under examination. Section 47 provide, that no appeal shall lie from any judgment of the High Court in any criminal cause or matter". It was held that an application by a party to a civil action for attachment for contempt against a person not a party to the action, who has published comments prejudicial to the trial, is a criminal cause or matter and that, consequently, no appeal lies. In Narayanyro Vithal v. Solomm Moses (A I R 1933 Bom. 108) clause 15 of the Letters Patent of Bombay (corresponding to clause 10 of Lahore. was directly in point; the contempt related to comments on a pending case by persons some of whom were not parties to the case. It was observed that an order in contempt was an order in exercise of criminal jurisdiction and that appeal was barred by clause

15. The decision in Shyam Sundar v. Jodhraj (A I R 1948 Cal. 214) which follows this view has been already referred to. On the other hand, it was held in Mohindra Lal Mitter v. Anandoo Coomar Mitter ((1897) 25 Cal. 236) that an appeal lies from an order refusing application to commit for contempt, but no reason is given for this view, and we respectfully do not adopt it. We hold that contempt proceedings are in the exercise of criminal jurisdiction in a broad sense and that, consequently, no appeal lies under clause

10. There is an alternative prayer that the case may be certified to be a fit one for appeal to the Federal Court under clause 31; but what we have already said makes it clear that the order in question is not in the exercise of "original" criminal jurisdiction. By that term we generally understand an ordinary criminal trial. We, therefore, dismiss this appeal. A. H. Appeal dismissed.