P L D 1963 Supreme Court 237 (PLP)

HAMOODUR RAHMAN, J.-This appeal has been filed as of right by the appellants herein against their conviction for contempt of Court and the punishment of reprimand recorded against their by a learned Single Judge of the High Court of West Pakistan. The circumstances in which they came to be convicted and so reprimanded may be briefly stated as follows: As a result o disputes between them and their uncles over certain properties proceedings under section 145 of the Criminal Procedure Code were initiated against them and in those proceedings on the 13t1 of March 1959, the Assistant Commissioner, Rahimyar Khan attached the agricultural properties belonging to the appellant and their uncles but refused to attach a residential house a village Bindhaur, as the appellants were, according to him residing in the said house with their children. The attached properties were, however, placed in the possession of two receivers. Later one of the receivers resigned and the other was appointed the sole receiver. He, it appears, again moved the Assistant Commissioner on the 12th of November 1959, for ejectment of the appellants from the said house on the ground that it would facilitate the management of the attached agricul tural properties. Nothing, it is alleged, was done on this applica tion until the 14th of May 1960, when at the instance of the Station House Officer, Rahimyar Khan, the Assistant Commis sioner without giving them any show‑cause notice or any opportunity of being heard passed the following order :‑ "From the statements of Sub‑Inspector it is clear that the Bungalow situated in village Bindore near the factory is a joint property and is in the possession of the parties ; and there is dispute about its possession between the parties on account of which there is immediate apprehension of breach of peace. Therefore, the Bungalow in question is attached under section 145, Cr. P. C. A copy of the order may be sent to the police and they may be asked to execute it within 10 days." Against this order the appellants moved the High Court under section 561‑A of the Criminal Procedure Code praying for the quashment of the order upon, inter alia, the grounds that the order had been passed without any notice or information to the appellants; that it was without jurisdiction, as there was no emergency at all and that in any event on the finding that the parties were in joint possession the Magistrate could not in law have made the said order of attachment. This petition was rejected in limine with a brief order to the following effect :‑ "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 of section 145 (4), Criminal Procedure Code. Dismissed. 23‑5‑60. (Sd.) S. A. Haq." Thereafter, they moved the Additional District Magistrate of Rahimyar Khan under section 435 of the Criminal Procedure Code to revise the impugned order of the Assistant Commissioner without disclosing that their petition under section 561‑A of the Criminal Procedure Code for the quashment of same order had already been dismissed by High Court. The Additional District Magistrate ordered the revision petition to be filed on the 11th of July 1960, but gave no reason for doing so. After this the appellants on the 22nd of July 1960, filed a revision petition under section 439 of the Criminal Procedure Code (Criminal Revision Case No. 507 of 1960) in the High Court again without disclosing in this petition that a previous application under section 561‑A of the said Code had already been dismissed by another learned Judge of the same High Court. On this petition the following interim order was passed on the 22nd of July 1960 :‑ "Notice to the State. The order for attachment of the house in dispute to be a stayed meanwhile. Certified copy of this order be supplied to‑day to the petitioners on payment of costs. Dated 22‑7‑1960. (Sd.) Nazeer Ahmad Mahmood." This revisional petition ultimately came up for hearing before the same learned Judge who had dismissed the application under section 561‑A of the Criminal Procedure Code, together with another Criminal Miscellaneous Case (No. 1647 of 1960) which was filed by Sardar Muhammad Ubaidullah Khan, an uncle of the appellants, for their committal for contempt of Court on account of the deliberate suppression of the information regarding the representation and dismissal of the previous applica tion under section 561‑A of the Criminal Procedure Code. The High Court took the view that the criminal revision case was not competent by reason of the dismissal of the previous applica tion under section 561‑A of the Criminal Procedure Code and dismissed the said revisional petition. Since the appellants have to come up against the said order it is not necessary to examine the reasons given by the High Court for coming to the said con clusion except in so far as it may be relevant far the decision of the question as to whether they had also committed contempt of Court by suppressing certain facts in their revision petition. The High Court has, of course, taken the view that even though "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," a party or his counsel was not relieved of the "responsibility to state all the relevant facts correctly." In so far as the appellants had not only not done so but actually obtained an interim order from another learned Judge, they had committed contempt of Court, for, thereby they had induced another learned Judge of the same Court to make a conflicting order. Again, by not disclosing this fact before the Additional District Magistrate they had also tended to bring the High Court into disrespect and disregarded before a Sub ordinate Court. Learned counsel appearing on behalf of the appellants contends that this view of the High Court is based mainly upon its conclusion that a proceeding under section 561‑A of the Criminal Procedure Code is substantially of the same nature as a proceeding under section 439 of the said Code, for, according to it, "in both the cases the High Court is bound to examine the legality, propriety and correctness of the impugned orders." It is from this point of view that the High Court, it is said, has held that the disclosure of the information as to the dismissal of the earlier application under section 561‑A of the Criminal Procedure Code had come material and, therefore, its nondis closure amounted to a contempt. He has endeavoured to urge before us, as he did in the High Court, that the two jurisdictions are not identical either in nature or in scope. The jurisdiction under section 561‑A of the Criminal Procedure Code is, in our opinion, of an extraordinary nature intended to be used only in extraordinary cases where there is no other remedy available. It is of a limited scope and cannot be utilised where there is other express remedy provided by the Code of Criminal Procedure In the exercise of the inherent jurisdiction under this section the High Court can neither exercise the powers of a Court of appeal nor can it enhance a sentence nor can it even re‑consider the question of sentence. It is designed to prevent an abuse of the process of Court and cannot be regarded as being wide enough to give to the High Court the same power that it has under section 435 read with section 439 of the Code of Criminal Procedure to examine the correctness, legality or propriety of any finding, sentence or order passed by an inferior Court. Such wide powers can only be exercised under section 439 of the said Code. We think, therefore, that there is a great dealt of force in this contention. The scope of the jurisdictions, exercised under these two provisions is not similar. The revisional jurisdiction of the High Court under section 439 is indeed wide and is not confined merely to errors of law. In the exercise of its revisional jurisdiction the High Court can even, in appropriate cases, disturb findings of fact, as, for example, where there subordinate Court has wrongly placed the onus of proof or not applied the correct principles relating to the appraisement of; evidence or an important place of evidence has been ignored. These things the High Court cannot do under section 561‑A. The two jurisdictions are thus fundamentally different. Indeed, as a rule, the inherent jurisdiction of the Court to correct an abuse of process of Court or a patent injustice cannot be invoked where there is an express provision in the Code under which the case can be adequately dealt with. Notwithstanding this, the question still remains to be considered as to whether the deliberate suppression or conceal ment of information, which might influence a Court in coming to its decision, amounts to contempt or not. The categories of contempt are so manifold that it is not possible to attempt an exhaustive classification of what may or may not constitute a contempt, but generally speaking, any conduct that tends to bring the administration of law by a Court into disrespect or to con tumaciously disregard its processes or to interfere with or prejudice parties or their witnesses during the litigation amounts to contempt. But at the same time we must point out in the words of the Judicial Committee of the Privy Council in the case of Shamdasani v. King‑Emperor (L R 1945 A C 264), which were re‑emphasized in the recent case of lzuora v. The Queen (L R 1953 A C 327), that this power "should be used sparingly and only in serious cases" and that Courts should not be either unduly touchy or over‑astute in discovering new varieties of contempt, for, "its usefulness depends e on the wisdom and restraint with which it is exercised." It appears to us to be desirable, when considering whether a particular act amounts to a contempt or not, to balance on the one hand the effects it might have on the litigation with, on the other, the wider public interest of extending to the litigant public the freedom of conducting their litigations without being constantly under the threat of a conviction for contempt and only if or the balance there is a benefit to the public interest in the wider sense this power should be utilised. Ever otherwise, where normally some other adequate method is available for correcting the intransigence, recalcitrance or contumacy of a party or a witness or for compelling obedience to the orders of the Court, then this power should not be invoked. It is no doubt important that the litigants seeking relief at the hands of the Courts in our country should observe complete candour and disclose all relevant facts which might influence the decision of the Court, but we are not prepared to go so far as to hold that every non‑disclosure of a relevant fact or every abuse of the process of the Court must necessarily also amount to contempt, normally because it may have some remote tendency to deflect the course of justice. As a general rule such non‑disclosure, if not made wilfully to mislead a Court, should not be punished as a contempt. The dismissal of the cause or matter on this ground alone or the award of costs against the party guilty of such non‑disclosure may be a sufficient punishment in such cases. Otherwise if every non‑disclosure or every procedural irregularity was to be treated as contempt; whether committed intentionally or not; then the Courts, we venture to think, would be doing nothing else but committing people for contempt of Court. Keeping these principles in view we have given our anxious consideration to the facts of the present case, and have come to the conclusion that there was no such wilful non‑disclosure on the part of the appellants which could be treated as an intentional attempt either to bring the High Court into disrespect or disregard or to wilfully mislead it in any manner or to deflect the course of justice. Indeed, the High Court itself has accepted that there was no intentional or wilful concealment in the present case and it is for this reason that it has imposed no greater punishment than a reprimand. What the High Court complains of is "complete suppression or concealment of facts which would have resulted in a failure" of the revisional petition and nothing more. This, with respect, we are unable to agree, was of such a serious nature as to be visited with a conviction for contempt. Having regard to the view we have taken as to the different scopes of the jurisdictions under sections 561‑A and 439 of the Criminal Procedure Code we are not prepared to say that the non‑disclosure had not been occasioned by a bona fide belief that since the two jurisdictions were different, it was not very material to mention that an earlier application invoking the inherent jurisdiction of the Court had been dismissed. This was, at any rate, a circumstance, which entitled the appellants to at least a benefit of doubt, and we propose to give this benefit to them. Learned counsel for the State has lastly argued that since a reprimand is not a punishment, the appellants have no right of appeal within the terms of Article 159 of the late Constitution. We see no substance in this contention, for in a contempt proceeding a reprimand is a recognised mode of punishment where the offence is not grave. It is no less as formal and public a stigmatisation of an offence addressed by a Judge to a convicted person as the imposition of an insignificant sum as a fine of a detention for an insignificant period of time. For these reasons we allow this appeal, set aside their con victions and the order recording the reprimand. A, H, Appeal allowed.