P L D 1958 Supreme Court (Pak (PLP)

CORNELIUS, J.‑The appellant in this case is one Khan Abdul Hayee Khan and the order against which he has appealed is one made by a learned Judge of the West Pakistan High Court imposing upon him a fine of Rs. 100 and costs in the sum of Rs. 50 for a judicial act performed by him in the capacity of section 30 Magistrate at Lyallpur which had been held to amount to contempt of the High Court. Briefly, the facts are as follows. A case of, arson was reported at the Kotwali in Lyallpur on the 22nd June 1954, at 9‑30 p.m. The date and hour of the occurrence are given as the 21st June 1954 at 1 p.m. The distance to the thana is negligible. The report was made by one Ghulam Jilani, a merchant of Lyallpur and was to the effect that during his absence from Lyal1pur on the previous day, a person named Qasam Beg, also a merchant of Lyallpur, had entered the compound of his house and had thrown some incendiary substance into his garage, thus setting fire to his car. This he had done out of resentment at having been refused the loan of the car some days before. The crime was not witnessed by any person, but Qasam Beg had been seen coming out of the compound by the complainant's servant Mangoo and his neighbour Abdur Rahman. Damage to the extent of Rs. 2,500 had been done to the car. The charge was laid under section 436, P. P. C., for which it is necessary that there should have been an intention to cause destruction of a building, and the maximum punishment specified is transportation for life. Arson involving property other than buildings is punishable under section 435, P. P. C., with a maximum of 7 years' imprison ment. Qasam Beg was arrested and on the 1st July 1954, the Additional District Magistrate of Lyallpur granted him bail by means of the following short order: "Arguments heard. No damage to house caused. Previous enmity mentioned in the F. I. R. Only car damaged. May be bailed out in the sum of Rs. 2,000 with one surety of the like amount". This order was set aside and the bail was cancelled by the Sessions Judge on the 15th July 1954 by means of an order which reads as under :‑ "I disagree with the reasoning given by the learned A. D. M. in releasing the respondent on bail. The car which was set on fire and was damaged, was lying inside the garage and, there fore, it cannot be said that he had no intention to cause damage to the garage, in which the car was lying. I accordingly accept the petition and set aside the order of the learned A. D. M. and ca4pel the bail under section 498, Criminal P. C. granted to the respondent. He should be taken into custody." The reference to section 498, Criminal P. C., requires some explanation. The offence charged being under section 436, P. P. C. the Additional District Magistrate had no jurisdiction to grant bail if there appeared reasonable grounds for believing that the accused was guilty of that offence. But clearly he considered that the offence should be limited by the damage caused, which was only to the car, and in that case, he would have jurisdiction to grant bail under section 497, Criminal P. C., and not under section 498 as stated in the order of the Sessions Judge. The Sessions Judge appears to have thought that the possibility of damage being caused to the garage brought the offence under section 436, P. P. C. On that basis a proper order might have been that the order granting bail made by the Additional District Magistrate was void, being without jurisdiction. Yet to bring the accusation under section 436, P. P. C.; it was not enough to find that "it cannot be said that he had no intention to cause damage to the garage". And there was of course the other question whether there were reasonable grounds for believing that Qasam Beg was the person who set fire to the car. It may conveniently be mentioned here that the eventual result of the case was the discharge of the accused under section 253, Criminal P. C., on the ground that the trial Court found it difficult to believe the pro secution story, based on the evidence of Mangoo and Abdur Rahman and was impressed moreover by certain evidence that on the day in question Qasam Beg was not in Lyallpur. The Magistrate took into account also the long delay in the making of the initial report. After the discharge of the accused no further steps appear to have been taken either by the Prosecuting Agency or by the complainant to continue the case against Qasam Beg. Against the order of the Sessions Judge dated the 15th July 1954, an application was moved in the High Court at Lahore which was dismissed on the 23rd July 1954, by means of the following short order :‑ ".I would leave the question of bail to be decided by the trial Magistrate after some evidence is recorded. Dismissed," In the meantime, on 7th August 1954, the case had been entrusted to the appellant Khan Abdul Hayee Khan for trial the order directed that the accused should present himself before the transferee Court on that very day, that two witnesses Abdur Rahman and Ghulam Jilani who were present should be directed to appear in that Court‑on the same day. Pursuant to this order Qasam Beg was produced in Police custody before Khan Abdul Hayee Khan. Abdur Rahman was not present. When the Magistrate started to record the evidence of the other witness, namely, Ghulam Jilani, counsel for the defence objected the ground that his case would be prejudiced by evidence being pro duced piece‑meal. The Court accepted the objection and adjourned the case to the 1st September 1954, directing that non‑bailable warrants should issue for Abdur Rahman and that Ghulam Jilani be bound over to appear. On the same day Qasam Beg applied for bail, pleading that the case was being delayed through willful non‑appearance of prosecution witnesses and that the Id‑ul‑Azha was approaching. It was stated also that the case was false and was based on business jealousy. The Magistrate adjourned the case to the 9th August 1954 for the purpose of certain enquiries. That day was declared a holiday and when the case came up on the following day, a fresh application was made by Qasam Beg stating that the witnesses had previously absented themselves wilfully after due service, that the case was totally false, that the applicant was a respectable business‑man and the day being Id day he should be released to celebrate the festival with his family. On the last mentioned ground, the Magistrate granted interim bail till the 11th August and on the following day after hearing the parties, he confirmed the bail. In this order, he mentioned the delay in lodging the initial report, the existence of previous enmity and the intimacy of the eye‑witnesses in the case with the complainant. At the same time, he declared that while he was not in a position fully to appreciate the stand taken by the defence, yet there was a new ground for considering the grant of bail namely that all the principal witnesses had been duly served for the 7th August 1954 and they had made default in appearance which had resulted in the case being adjourned to a longer date. Accordingly, he directed that the accused should continue to remain at large under the bail order made on the previous day. It appears that the order made in the High Court was not before Khan Abdul Hayee Khan when he made his order on the 11th August 1954. The Public Prosecutor moved the Sessions Judge . or cancellation of the bail who accepted the application on the 13th August 1954 by means of an order in which he said :‑ "A bail application was presented before the Honourable the Chief Justice and he also dismissed the application. He, how ever, remarked that he would leave the question of bail to be decided upon by the trial Magistrate after some evidence is recorded. The learned trial Magistrate to whom the case had been transferred by the Additional District Magistrate, Lyallpur, released Qasam Beg on bail without recording any evidence at all." In my opinion he acted contrary to the orders of Honourable the Chief Justice. I accordingly cancel the bail granted to Qasam, Beg and order that he should be taken into custody forth with. Qasam Beg was next produced in custody before Khan Abdul Hayee Khan on the 1st September 1954. This was the date which had been fixed on the 7th August 1954 for examination of the prosecution witnesses. The complainant immediately placed before the Court a prayer that his own statement should not be recorded as he had made an application to the Additional District Magistrate for transfer of his case to some other Court. His other witnesses were not present. Khan Abdul Hayee Khan acceded to the request that Ghulam Jilani's statement should not be recorded on that date. In a written order, he noted that the complainant had declared that he had no intention to move the High Court under section 526, Criminal P. C., for transfer of the case. He noted also that there had been negligence on the part of the pro secution agency in serving the witnesses for the prosecution. A prayer for bail was again made on behalf of Qasam beg by his counsel, on the ground that the complainant was deliberatlt avoiding giving evidence himself and was taking no pains to bring his witnesses to Court. In the words of Khan Abdul Hayee Khan's order, "The learned counsel submits that when the complainant himself wishes postponement of the trial and; the witness are not forthcoming, his client should not be made to suffer an uncalled for confinement in the judicial lock‑up and he should he admitted to bail." Counsel appearing for the State conceded that the case on its merits was a fit one for the grant of bail, but that the order of the High Court dated the 23rd July 1954, required that sonic evidence should be recorded before the grant of bail could be considered. The defence counsel replied that since it was at the wish of the complainant that evidence was not being reorded on that day, there was good ground for the exercise of power it, favour of the accused. Khan Abdul Hayee Khan accepted the contention of the defence, and proceeded to observe as follows :‑ "The evidence could have been, but for the unwillingness on the part of the complainant, recorded today . . . . . I am of the view, that the order of Hon'ble the Chief Justice d0: s not rule out new grounds that could have arisen in the course of trial of this case, because its strict interpretation would tanta mount even to disallow the bail when the accused be at the point of death. It is quite inconsonance with the spirit of that order to say that when some evidence could have been , recorded and is not so recorded as alluded above, it is as good as some evidence was in fact recorded. The facts of the case as are contained in the zimnis, which I had studied earlier, would also justly warrant for the bail of the accused in this case." Accordingly, Khan Abdul Hayee Khan once again directed the release of Qasam Beg on bail. On the 7th September 1954, Ghulam Jilani complainant applied to the Sessions Judge to cancel Qasam Beg' s bail. It is noteworthy that on this occasion, the application for cancellation was not made by the Prosecuting Agency. By his order dated the 13th September 1954, the Sessions Judge cancelled the bail granted by Khan Abdul Hayee Khan. After stating certain preliminary facts, the Sessions Judge observed that under section 526 (8), Criminal P. C. the trial Court was bound to adjourn the case when the complainant had declared his intention of applying for it to be transferred from that Court, and from that stage onwards, the Court was functus officio. He remarked also on the fact that there was no mention of this transfer application in Khan Abdul Hayee' s order of the 1st September 1954, by which he granted bail. As to these observations it is in our view necessary to point out that the application for transfer was not made under section 526, Criminal P. C. Moreover, it is plain from the order sheet, where the matter of the transfer application is fully dealt with, that Khan Abdul Hayee Khan had made no attempt to conceal the fact of that applica tion. His order granting bail was complete in itself and contained all the necessary facts. In cancelling the bail of Qasam Beg the Sessions Judge observed as follows: ‑ " The learned trial Magistrate, in my opinion, by releasing the respondent Qasam Beg, on bail without recording any evidence has again acted contrary to the orders of the High Court. I am really pained to notice that a senior judicial officer like the said Magistrate has flouted the orders of the highest Court in the Province, which in my opinion is a very sad reflection indeed." It was not, however, the Sessions Judge who moved for proceedings in contempt against Khan Abdul Hayee Khan. The application for this purpose was made by Ghulam Jilani. After hearing the counsel for the applicant as well as Khan Abdul Hayee Khan, the learned Judge in the High Court came to the following conclusions. He observed that the Public Pro secutor had drawn the attention of the Magistrates " to the order of the High Court which required the recording of some evidence before determining the question of releasing the accused on bail." He went on to say that the Magistrate was aware that the Sessions Judge had declared in his order of the 13th August 1954, that " releasing the accused on bail without recording evidence was contrary to the order of the High Court". Observing that the Magistrate had ignored "the orders of the Sessions Judge" the learned Judge in, the High Court recorded his opinion as under: ‑ " There was thus flagrant disregard of the order of the High Court and of the interpretation of that order by the learned Sessions Judge, which, as a Court of inferior juris diction, was binding on the respondent. After the judgment of the learned Sessions Judge, it was not open to the respondent to put any other interpretation on the order of the High Court. His subsequent actions can, therefore, only be interpreted as being mala fide." The point for determination in this appeal is whether these views are valid, in the light of all the facts and circumstances of the case. We consider it desirable to say at the that the expression "mala fide" can only have been used very special sense. Nothing in the nature of bad faith or on the part of the Magistrate appears or can be deduced anything contained in the record. From the very commence of the case, doubts were entertained regarding the maintainability of the accusation, not only in regard to the requirements of section 436, P. P. C. but also as to whether the witnesses cited could be worthy of belief, to which may have been added the circumstance that the initial report was lodged after wholly unreasonable delay. The Prosecuting Agency, having twice pressed the charge under section 436, had apparently altered its view by the 1st September 1954, when it was conceded before the Magistrate that the case was a fit one for bail. It is unnecessary to emphasise that where a Court grants bail in a case which the Prosecuting Agency itself admits to be a fit case for bail, it would need very strong evidence indeed to hold that the action of the Court in these circumstances was taken in bad faith, or that it involved judicial dishonesty of any kind. Viewing the case as a whole, from its commencement with a much delayed initial report up to its conclusion in a discharge order which was left unchallenged, it clearly emerges that the only obstacle in the way of the grant of bail by the trial Magistrate was thought to lie in the wording of the order made in the High Court on the 23rd July 1954. That order which merely said that the question of bail was left to be decided by trial Magistrate after some evidence was recorded, has been interpreted by the Sessions Judge and in the High Court, as if it was the source of power in the Magistrate in regard to the grant of bail. That view is plainly fallacious, for the Magistrate derived his power of granting bail from section 497. of the Criminal P. C. and no restraints upon that power can be recognized except such as appear in the section itself. The present was clearly a case in which bail could have been granted by the Magistrate, provided he was satisfied that there was no reasonable ground for thinking that the offence D lay under section 436, P. P. C. and for this purpose it was not a necessary condition that any evidence should have beets recorded in the case. Moreover, it is clear from the wording of the High Court order dated the 23rd July 1954 that it was not intended to lay down that the grant of bail by the Magistrate should be subject to the condition that he should have recorded some evidence. The complainant certainly understood the order in this sense, and for a considerable time, attempted to frustrate e the power of the trial Magistrate to grant bail by not allowing evidence to be recorded. In these circumstances, the duty of the Court clearly was to take such steps as were necessary to ensure that the complainant should not succeed in his tactics. After the most careful consideration of the circumstances, we are left with the clear impression that in making repeated orders granting bail to Qasam Beg, Khan Abdul Hayee Khan acted in accordance with the duty indicated above. He did so moreover at some personal risk in view of the interpretation placed upon the High Court order by the Sessions Judge. It is necessary also for us to observe that the view that the Sessions Judge's interpretation of the High Court order was binding on Khan Abdul Hayee Khan as a Court of inferior jurisdiction, is one which, speaking with due respect, we find JUit impossible to sustain. A judgment of a High Court is in indeed binding upon all subordinate Courts, but when its meaning is not entirell clear, in the circumstances of a particular case, it is open to the subordinate Courts to attempt to interpret the ‑words employed. and to give effect to that interpretation which seems to there to be the most reasonable. In such an exercise there is no distinction of superiority or inferiority of Courts, and each Court subordinate to the High Court must be regarded` as having equal competence in the particular respect except m the case where the interpretation is made the basis of a lawful direction to a subordinate Court. In this case, the Sessions Judge appears to have been content to declare that the High Court order meant that the trial Magistrate should not grant bail without recording evidence. In our view Khan Abdul Hayee Khan before whom the question arose whether there was sufficient justification for keeping Qasam Beg in custody for the purpose of determining the truth of the accusation against him, took a more accurate view of the High Court order in saying that it did not rule out grounds that might c arise in the course of the proceedings. As we have observed above, the High Court order was not intended to lay a yin fetters upon the power of the Magistrate to grant bail m the case, and fertile that the words "after some evidence is recorded" cannot be interact: as .a specific condition, applying to the exercise of that power Therefore, not only do we feel that in a case of this nature there is no requirement in law that the interpretation placed upon a legal document by‑ a Sessions Judge is binding upon Courts of inferior jurisdiction, but we consider also that in the present case the interpretation placed upon the order in question by the Sessions Judge was incorrect. On the other hand the appellant's interpretation of the order was one upon which he could properly act in the due discharge of judicial functions in Good faith. Consequently, we find no such "flagrant disregard" of the order of the High Court as has been made the foundation of the conviction for contempt in the present case. We may usefully conclude this judgment with a few general observations. The contempt here alleged belongs to a very special class, confined to Judges and presiding officers of the inferior Courts. In Blackstone's Commentaries (1876) Vol. IV at p. 295 such contempt s are described in the following terms :‑ " Those committed by inferior Judges and Magistrates; by acting unjustly, oppressively, or irregularly, id administering those portions of justice which are intrusted to their distri bution; or by disobeying writs issuing out of the High Court, by proceeding in a cause after it is put a stop to or removed by writ of prohibition, certiorari, error, supersedeas, and the like. For as the High Court, and especially ` the Queen's Bench Division thereof, has a general superintendence over all inferior jurisdictions, any corrupt or iniquitous practices of subordi nate Judges are contempt of that superintending authority whose duty it is to keep them within the bounds of justice." In Halsbury's Laws of England (Third edition Volume. VIII page 19) the following description of this class of contempt appears :‑ " Judges of inferior Courts are punishable by attachment for acting unjustly, oppressively or irregularly, in the execution of their duty, or for disobeying writs issued by the High Court requiring. them to proceed or not to proceed in matters before them, but a great part of this jurisdiction is virtually superseded by statutes giving the power to remove a Judge of an inferior Court for inability or misbehaviour." The impression is clearly conveyed by the last quotation that a contempt falling in this class would ordinarily be by itself sufficient to justify the removal of the Judge or Magistrate at fault. The offence must be of a grave character, ;evolving the commission of injustice, or oppression or some irregularity of a serious character to justify imposition of the drastic procedure and penalties of a contempt proceeding. There have been cases where a subordinate Judge has apparently acted in con travention of an order of a superior Court, but upon an erroneous construction of an obscure instrument and in such cases the superior Court has refrained from taking action in contempt. Mungean v. Wheatley, (1851) 16 Exch. 88) where what is found is something having the appearance of indiscipline, the ‑ powers of' superin tendence vested in the High Court are quite sufficient to enable restoration of a proper state of affairs, without recourse to the severe process of contempt. In the present case, the Magistrate; would have been well advised to have added an expression of respect for the views of the Sessions Judge, from which he was differing. The obligation to do so is not a legal one, but is not to be regarded as any the less real, for that reason. It rests on a long tradition of judicial courtesy, and in the case of an inferior Court, the duty is emphasised by the fact of subordination. A default in this important respect invites disapproval, and even correction, in an appropriate case. But it is clearly not appropriate to use the process of contempt to enforce the requirements of judicial courtesy. For the reasons given above we allow this appeal and ,ct aside the order of the High Court. The appellant will ha% c his costs against the second respondent Ghulam Jilani. A. H. Appeal allowed.