1985 PLP 1421 (MLD)

(c) Criminal Procedure Code (V of 1898)-- --S. 344--Remand--Growing tendency amongst Magistrates to grant remand/ adjournment as token of police co-operation and for that matter going to extent of violating mandatory provisions of statutes and guidelines givers by superior Courts, depricated--Violation of statutory provisions effect. A.A.-G for the State. Respondent in person. In the course of arguments in Criminal Miscellaneous No. 1065-H of 1984/(BWP), a petition for bail titled Muhammad Asghar v. State, one of the contentions of Malik Muhammad Din, learned counsel for the petitioner therein was that remand/adjournment orders having been passed by the Assistant Commissioner, Minchinabad, in sheer disregard to the mandatory instructions given by this Court in case Ghulam Sarwar and another v. The State reported as 1984 P Cr. L. J 2588 for the grant/refusal of remands and adjournments in criminal cases, the detention of the petitioner was illegal and as such he was entitled to be released on bail on this score alone. To substantiate this, he showed me orders passed by the Assistant Commissioner. I found that the allegations against the Assistant Commissioner of having flouted the guidelines given by this Court in the judgment referred to above were factually correct. The Assistant Commissioner had continuously been violating the directions /instructions of this Court. Although there was no evidence at all against the accused therein yet the Assistant Commissioner went on committing him to judicial custody for 8 months. Had he cared to follow the guidelines given by this Court in the matter of remand /adjournment and taken the trouble of looking into the police file he perhaps would not have usurped the liberty of the accused for such a long time. I was, therefore, convinced that the Assistant Commissioner had passed orders in disobedience of and disregard to the directions/instructions given by this Court in the aforesaid judgment and as such had rendered himself liable to prosecution under the Contempt of Court Act, so I issued him a suo motu notice to show cause as to why contempt proceedings be not initiated against him. Today he entered appearance. In his reply he did not contest on factual side. He first tried to justify hip order on the plea of excessive load of work particularly of executive functions. He then submitted unqualified apology. Since this apology was tendered with an attempt at justification, to my mind, it was not an unqualified apology but an apology simpliciter. I was of the view that for the effective administration of justice it was necessary to proceed against the Assistant Commissioner. I recorded order to that effect setting forth the substance of charge and called upon him to show cause as to why he should not be punished. On this the accused Assistant Commissioner made retreat and his first reaction was of "pure unqualified apology". It is well-recognised that even unqualified apology is not a complete answer or defence to the charge of contempt and on the strength of unqualified apology an accused person cannot claim acquittal or discharge of notice as a matter of right and each case has to be considered and decided on its own facts. As the Assistant Commissioner had shown reackless disregard for the orders of this Court and had kept the accused against whom no evidence could be collected by the police, for 8 months in the jail and the Assistant Commissioner fully knew what he was doing by way of disobedience to the instructions/directions/guidelines given by the High Court, therefore, I was thinking of convicting and awarding him the maximum punishment of 6 months' imprisonment and a fine of Rs.5,

000. However, I found him showing spirit of manful confession, feeling repentance, giving sincere assurance that he will-be careful in future and offering unqualified apology. The accused has adopted correct attitude, his conduct appears to be sincere and not subterfuge to avoid punishment which furnishes the evidence of real contribution. Since he was thrown himself at Court's mercy without demur or qualification, therefore, the elements of mercy have also prevailed upon me and I feel persuaded to follow the golden principle that in contempt matte when the Court is satisfied that the accused had purged himself, the grace lies in forgiving rather than convicting him, i, therefore, discharge the notice as a matter of grace and mercy.

2. Now that I have discharged the notice, I feel constrained to observe that a tendency is growing amongst Magistrates to grant remand /adjournment as token of police co-operation and for that they go to the extent of violating the mandatory provisions of statute and guidelines given by the superior Courts. This not only diminishes the dignity and authority of Magistrates but also impairs public confidence in their independence impartiality and integrity. In this way, they may tarnish the image of magistracy. It is often said that police and Magistrates are one and same thing. This belief neither enhances the dignity of Magistrates nor that of police. The Magistrates must co-operate with police in law and order matters. Even in judicial matters they may co-operate with police within the corners of Code and according to the canons of law but it would not be appreciable to co-operate in an unlawful act and in an illegal manner. It would not be advisable to cross the limits and extend co-operation in judicial matters at the cost of the liberty of human beings. Citizens genuinely complain about the delay in disposal of cases. High Court assessed that in trial before Magistrates and Courts of Sessions the main cause of delay was the reckless grant of remands/adjournments by Magistrates because the Sessions Judges could not take cognizance of a case unless the case was sent up to him by the Magistrate. High Court found that challans were not submitted before the Magistrates for months together and in some cases for a period of more than a year or so. To achieve speedy trial and curtail the delay in submission of challan High Court had given authoritative directions/instructions to the Magistrates in the matter of grant of remand and adjournment. The guidance was meant both for the Magistrates and police. Copies of the judgment were made available to all the District Magistrates/Superintendents of Police and Sessions Judges of Punjab. In the last paragraph of that judgment I said that:- "The Magistrate should realise, that they are answerable and accountable to the High Court foil the illegalities and irregularities done by them and that the High Court under section

439. Cr. P. C. is quite competent to examine the correctness of the orders passed by them and in case they violate the instructions given by this Court serious action may be taken against them. Let copy of this order be sent , to the District Magistrates/ Superintendents of Police and Sessions Judges of all the districts in Punjab. They would ensure that instructions given by me in the matter of remand /adjournment are fully complied with by the Magistrates. The Sessions Judges concerned would bring non-compliance of these instructions by the Magistrates to the notice of the Registrar/ Additional Registrars of the Lahore High Court/ Benches". I have painfully noted that the Magistrates are not following the instructions given by this Court. Two Inferences may be drawn. Firstly, that the District Magistrates consider themselves not accountable to the High Court; and secondly, they lack control and supervision over the Magistrates. In the first c e, the District Magistrates should realise that they are bound to obey the High Court which is quite competent to move withdrawal of their judicial powers. In the second case, the High Court may report there inefficiency to the Government which may render them liable to an action under the Punjab Civil Servants (Efficiency and Discipline) Rules, which entails major penalty.

3. This time I have discharged the notice for the reasons given above. Lest I am misunderstood, I would like to make it clear that if despite the lawful warning given by this Court, any Magistrate is found violating the guidelines given in the order of this Court, no leniency and mercy may be shown to him and actions-including registration of case under section 342, P.P.C. prosecution under the Contempt of Court Act and recommendations for the withdrawal of the judicial powers and departmental action against them may be made.

4. Copies of this order be sent to the District Magistrates/ Superintendents of Police/Sessions Judges in all the districts of Punjab for compliance. S. G. D. - Contempt notice discharged.