P L D 1961 (W (PLP)

The petitioners in Criminal Revision No. 507, viz., Muhammad Sami Ullah Khan and Muhammad Asad Ullah Khan, are aggrieved by an order dated the 14th of May 1960 passed by Mr. Mir Ansari. Magistrate of the first class at Rahimyarkhan. under section 145 of the Criminal Procedure Code directing the attachment of a bungalow situated in village Bindhaur in the Rahimyarkhan District. It was alleged before the learned Magistrate that. there was an imminent apprehension of the reach of the peace due to a dispute over property between the petitioners on the one side and their uncles Muhammad Ubaidullah Khan, etc., on the other side. This petition was admitted to a hearing by my learned brother Nazir Ahmad Mahmood and he granted an interim stay of the execution of the impugned order. When the notice of the admission of this petition and of the interim stay was served on the respondents, they put in Criminal Miscellaneous Application No. 1647 of 1960, alleging that the petitioners had already agitated the same matter before the High Court by means of Criminal Miscellaneous No. 772 of 1960 under section 561‑A of the Criminal Procedure Code, which was, however, dismissed by me on the 23rd of May 1960. The respondents prayed that the present Criminal Revision No. 507 of 1960 be dismissed and action be taken against the petitioners for contempt of Court inasmuch as they had suppressed information about the presentation and dismissal of their previous application under section 561‑A of the Criminal Procedure Code and obtained the interim order from Nazir Ahmad Mahmood, J., on false representations.

2. Before dealing with the Criminal Revision on merits, it is necessary to determine whether it is competent in view of the dismissal of the petitioners' previous application No. 772 of 1960. In that application the parties were the same ; the order complained against was the same, that is, the order of Mr. Ansari, dated the 10th of May 1960, under section 145 of the Criminal Procedure Code, and the grounds urged for quashing this order were practically the same as have now been put forward under section 439 of the Criminal Procedure Code. In the previous petition under section 561‑A the prayer made was : "That the proceedings in which impugned orders have been passed may be quashed and/or the impugned order may be set aside. In the meantime an order may kindly be made suspending the execution of the order of the learned Magistrate, Rahimyar Khan dated 14‑5‑60". In the present petition the prayer is : "The record of the proceedings may kindly be sent for and after its kind perusal the order of the attachment of the property in dispute be set aside. It is further prayed that pending the disposal of the revision petition the order of attachment may kindly be suspended and the petitioners' possession may not be disturbed." 2 (sic). When I heard the petition under section 561‑A of the Criminal Procedure Code on the 23rd of May 1960, I passed the following order:‑ "There is no reason to interfere at this stage with the order of the learned Magistrate who is clearly competent to act under second proviso to section 145 (4), Cr. P. C. Dismissed."

3. It will, thus, be seen that the previous petition under section 561‑A of the Criminal Procedure Code and the present one under section 439 of the Criminal Procedure Code are practically identical and the only difference is that they have been filed by different counsel. Mr. Shamim Husain Qadri, the learned counsel appearing for the petitioners, has tried in vain to show that the powers of the High Court under section 439 of the Criminal Procedure Code are entirely different from those exercised under section 561‑A of the Criminal Procedure Code and, therefore, it is open to a party to approach the High Court successively under both these provisions. If the proposition enunciated by the learned counsel were accepted as correct, it would mean conferring on a party a right to approach this Court twice in the same matter, first. under one section and then under the other, and to succeed, at least in some cases, in obtaining conflicting judgments in the same matter from the same Court. This is exactly what has happened in this case. On the 23rd of May 1960, I refused to take action as I considered that the learned Magistrate was competent to pass the impugned order under section 145 (4) of the Criminal Procedure Code, but the petitioners succeeded in obtaining an interim stay order from my learned brother, Nazir Ahmad Mahmood, by suppressing the fact that they had already failed to have the order quashed under the provisions of section 561‑A. Whatever the difference in the language employed in the Code of Criminal Procedure in defining the powers of the High Court under sections 439 and 561‑A, their application is not substantially different when the prayer is for the quashing of an order under section 561‑A or setting it aside under section 439, for in both cases the High Court is bound to examine the legality, propriety and correctness of the impugned orders. It is, therefore, clear to me that‑if a party chooses to approach the High Court under section 561=A of the Criminal Procedure Code in the first instance, then it cannot be permitted to agitate the same matter again under section 439, Criminal Procedure Code, or vice versa. Any other view would lead to confusion and conflicting decisions.

4. Mr. Shamim Husain Qadri, however, urged that there is no provision in the Criminal Procedure Code prohibiting the High Court from reviewing or altering its order passed under section 561‑A of the Criminal Procedure Code, especially when such an order is more or less of an interlocutory nature. He pointed out that the only provision limiting the powers of the High Court in the matter 'of altering or reviewing a judgment in a criminal case is the one contained in section 369 of the Criminal Procedure Code, and that provision is confined only to the judgments of the High Court and does not extend to other orders. In other words, it seems to me that the contention of the learned counsel is that even if a subsequent application under section 439 of the Criminal Procedure Code be taken to be an application for reviewing or altering the previous order passed by the High Court under section 561‑A of the Criminal Procedure Code, it would not be barred by any statutory prohibition. In my view the contention is not well‑founded. The expression "judg ment" as used in section 369 of the Criminal Procedure Code, obviously includes decisions and orders passed in criminal matters on the merits of the case. If, therefore, the High Court has q disposed of a case on merits under section 561.‑A of the Criminal Procedure Code, then by virtue of section 369 of the Criminal Pro cedure Code, it is precluded from .reviewing or altering that order by purporting to act under section 439 of the Criminal Procedure Code, or vice versa. In the present case the order passed on the 2_ rd of May 1960, on the petitioners' application under section 56 1‑A of the Criminal Procedure Code, was a decision on merits, inasmuch as the High Court refused to interfere, holding that the impugned order was within the competence of the Magistrate who passed it and no case was made out for quashing it. If the High Court were to interfere now with the impugned order in pursuance of the petitioners' application under section 439 of the Criminal Procedure Code, the action mould amount to reviewing or altering its previous judgment, against the express prohibition‑ contained in section 3(9 of the Criminal Procedure Code.

5. Some authorities were then cited to bring out the scope of section 561‑A of the Criminal Procedure Code, namely, Bikaru v. Emperor (A I R 1948 Oudh 17) ; Assistant Government Advocate v. Upendra Nath Mukerji (A I R 1931 Pat. 81) and Edward Few v. Emperor (A I R 1939 Lah 244) These authorities are not directly relevant to the point in issue here and no more therefore, need be said about them except that in the last mentioned case it was specifically observed that section 561‑A of the Criminal Procedure Code does not confer upon the High Court new powers but merely declares that such inherent powers as the Court may possess shall not be deemed to be limited or affected by anything contained in the Code, with the result that section 561‑A did not confer on the High Court any power to alter or review its own judgment in criminal cases once it has been pronounced and signed.

6. My conclusion may, therefore, be stated thus. If a party has agitated in a matter by means of an application under section 561‑A of the Criminal Procedure Code and the application is dismissed by the High Court, after considering the merits of the case, then a second application by the same party in respect of the same matter cannot, be entertained under section 439 of the Criminal Procedure Code, notwithstanding the difference of language employed in the two sections while defining the scope of the powers enjoyed by the High Court under these sections, for the reasons that : (a) such a procedure is likely to lead to confusion, multiplicity of litigation and conflicting judgments, and (b) it will amount to an application to review or alter a judgment of the High Court against the express provisions of section 3(91 of the Criminal Procedure Code. The same considerations would apply if the earlier application was made under section 439 of the Criminal Procedure Code and the subsequent one under section 561‑A of the same Code. For these reasons I would, dismiss Revision Petition No. 507 of 1960 as being, incompetent. To this extent Criminal Miscellaneous No. 1647 of 1960 stands accepted.

7. I now take up the second prayer made in Criminal Miscellaneous No. 1647 of 1960, namely, that petitioners Muhammad Samiullah Khan and Muhammad Asadullah Khan be punished for contempt of Court inasmuch as, while filing Criminal Revision No. 507 of 1960, they suppressed information about the presentation and dismissal of their previous application under section 561‑A of the Criminal Procedure Code. It is also alleged that after the dismissal of their application under section 561‑A of the Criminal Procedure Code, they moved the Additional District Magistrate of Rahimyar Khan under section 435 of the Criminal Procedure Code to revise the impugned order of Mr. Ansari, without disclosing to the Additional District Magistrate that they had already approached the High Court in the same matter. It was stated at the Bar by Mr. Jan Husain, the learned Advocate for the applicants, that somehow or the other the Additional District Magistrate came to know about the order passed by the High Court on the 23rd of May 1910, and he, therefore, filed the petitioners' application under section 435 without taking any action. It is conceded by Mr. Shamim Husain Qadri, the learned counsel appearing for the petitioners in Criminal Revision No. 507 of 1960, that the facts regarding the earlier application under section 561‑A of the Criminal Procedure Code were not disclosed either to the Additional District Magistrate or in this Court when the petitioners filed their applications under sections 435 and 439, Criminal Procedure Code, respectively. The question, therefore, is whether this concealment or suppression of information regarding the previous application amounts to a contempt of this Court.

8. On behalf of the applicants it is contended that the petitioners Muhammad Samiullah Khan and Muhammad Asadullah Khan have tended to bring the High Court into disregard and disrespect inasmuch as they attempted to obtain an order from a subordinate Court, namely, the Additional District Magistrate of Rahimyar Khan, in spite of the fact they had failed in the High Court to get the same relief. It is also pointed out that the petitioners have effectively interfered with the course of justice inasmuch as they succeeded in obtaining an interim order from the High Court which was in direct conflict with the previous order of the High Court passed on the 23rd of May 1960.

9. On behalf of the petitioners it is submitted that there was no statutory obligation on their part to disclose the facts of the previous application under section 561‑A of the Criminal Procedure Code, that the High Court had not passed any final order in the matter on the previous application, that in any case there has been no substantial interference with the course of justice. Finally it is submitted that they bad no intention of showing any disrespect to the High Court.

10. In the present case it is true that there is no statutory provision expressly laying down that a petitioner shall set forth truly all the facts relating to any previous application which he may have moved in the High Court regarding the same matter but the absence of such a provision does not relieve the petitioners C or their counsel of responsibility to state all the relevant facts correctly. By suppressing information about the previous application submitted under section 561‑A of the Criminal Pro cedure Code, the petitioners succeeded in obtaining an interim order from Nazir Ahmad Mahmud, J. which was contrary to the previous decision of this Court given on the 23rd of May 1960, refusing to interfere with the impugned order. To this extent, therefore, the petitioners succeeded, if not in interfering with the due course of Justice, at least in deflecting that course for the time being. This would clearly amount to a contempt of Court according to accepted definitions. Mr. Qadri referred me to M. A. Naqvi v. The Crown (PLD 1955 FC 11), where it was held that "It is impossible to endorse the proposition that any ground taken by counsel which is eventually repelled because it is based on an incomplete statement of facts or an erroneous view of the law amounts to a contempt of Court. Contempt means anything done or said that is calculated to obstruct or interfere with the due course of justice, and it cannot possibly be laid down that unsustainable ground urged for the Court's interference in revision must be held to amount to an obstruction to or interference with the due course of justice". It will be seen that the case relied upon by the learned counsel is distinguishable from the facts of the instant case, inasmuch as here th6 petitioners have actually succeeded in obtaining a conflicting order by suppressing the relevant information about the previous application under section 561‑A of the Criminal Procedure Code. The present is not a case where an erroneous view of law was being advocated by the petitioners or simply that incomplete facts of the case were given. Here is a complete suppression or concealment of facts which would have resulted in a failure of their present petition. By suppressing information about the previous orders of the High Court passed under section 561‑A of the Criminal Procedure Code, when presenting their application before the Additional District Magistrate under section 436 of the Criminal Procedure Code they also tended to bring this Court into v disrespect and disregard before a subordinate Court. For these reasons I have no hesitation in holding that the petitioners are guilty of contempt of Court.

11. As regards punishment, I consider that the petitioners are laymen, not fully conversant with law and they may have been ill‑advised in filing successive petitions under sections 561‑A, 435 and 439 of the Criminal Procedure Code with regard to the same matter I am prepared to accept their statement that they had no intention of bringing this Court into contempt or showing disregard and disrespect to its orders. I think the requirements of the present case would be met if the petitioners are reprimanded for their conduct. I order accordingly. K.B.A. Order accordingly.