2006 PLP 3067 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

Briefs facts giving rise to the present Appeal are that the appellants who are ladies, have been convicted for contempt of Court by learned Additional Sessions Judge, Moro for offence punishable under section 228, P.P.C. and sentenced each of them to suffer simple imprisonment for one month and fine of Rs.1,000 or in default thereof to suffer S.I. for one week. The learned Advocate for the Appellants, has stated that order passed by the learned Additional Sessions Judge, was illegal and without jurisdiction inasmuch as the appellants were not called upon to make statements and no statements as a matter of fact were recorded as required by section 481, Cr.P.C. because the learned trial Judge took cognizance under section 480, Cr.P.C. He has further argued that the appellants could not have been awarded sentenced of one month and fine of Rs.1,000 because the trial Court had jurisdiction to award sentence only up to Rs.200. The learned A.A.-G. has conceded the above position and has not supported the impugned judgment. I have given due consideration to the arguments, gone through the material available on the record and found that the learned Judge convicted the appellants because they obstructed judicial proceedings of the Court on the day when such proceedings were in progress. There are various modes for dealing with the situation as provided under sections 480, 482 and 476, Cr.P.C. All the three provisions deal with separate situations. Section 480, Cr.P.C. deals with the situation when contempt was made in presence of the Court and the Court decides to punish the offender then and there. If the Court finds the charge proved then the sentence of fine of Rs.200 can only be awarded beyond that no further sentence can be awarded. If the trial Judge decides that the contempt is such where the offender is required to be punished severely then he can refer the matter to the competent Court for trial as provided under section 482, Cr.P.C. If he further finds that he should try the offender and punish severely then the provisions under section 476, Cr.P.C. are required to be followed. In the present case it will be noticed that the learned Judge had tried the offender then and there, as no charge or plea or statements of the appellants were recorded, therefore, he invoked the provisions of section 480, Cr.P.C. under which the learned Judge was competent to award sentence of Rs.200 only. Therefore, the sentence of imprisonment for one month and fine of Rs.1,000 are illegal, hence they are required to be set aside. Furthermore for the proceedings and preparation of record the learned Judge was required to comply with the provisions of section 481, Cr.P.C. under which the opportunity should have been given to the appellants to explain the situation and to record their statements. Section 481, Cr.P.C. reads as under:- "

481. Record in such cases.

(1) In every such case the Court shall record the facts constituting the offence, with the statement (if any) made by the offender, as well as the finding and sentence." The expression "if any" used in the above section indicates that the Court can not compel the accused to make a statement but it does not mean that it should not give an opportunity to make a statement, therefore, the opportunity should have been given to the appellants to explain the situation but the same has not been done by the trial Court as such the provisions of section 481, Cr.P.C. have been violated. Similar point was considered by the Judicial Committee of Privy Council in a case of In Re Edward Hatchinson Pollard, LR Privy Council Appeal Volume II 106 in which their Lordships observed that no person can be punished for contempt of Court which is a criminal offence unless a specific charge against him be distinctly stated and an opportunity given to him of answering. This case was decided in .1868 and the same principle was affirmed by their Lordships of Judicial Committee in a case of Chan Hang Kin "(1909) 13-C.W.N 685" As in the present case no opportunity was given to the appellants to explain their conduct nor their explanations were obtained or statements were recorded, therefore, the impugned judgment suffers from material irregularity and illegality that cannot be cured. Finding the above defects in the impugned judgment, the learned A.A.-G. has not supported the same. Consequently the conviction and sentence awarded to the appellants under the impugned judgment are set aside. The fine paid by the appellants be returned to them. Above are the reasons of my short order dated 11-8-2006 by which I had allowed the appeal. H.B.T./N-27/K Appeal allowed.