P L D 1964 Supreme Court 562 (PLP)

CORNELIUS, C. J.

‑The appellant A. K. M. A. Awal has been convicted by the High Court of East Pakistan under section 3 of the Contempt of Courts Act, 1926, and sentenced to pay a fine of Rs.

500. The facts are simple. The appellant was at the relevant time Sub‑Divisional Officer Sadar (South) Chittagong. He is a member of the East Pakistan Civil Service. His predecessor had taken cognizance under section 278/291, P. P. C. of a complaint by the Chief Medical Officer of Health of Chittagong on the report of the Sanitary Inspector of the Local Health Circle to the effect that one M. Mohibullah, Secretary of Kalarpole Senior Madrasah in Chittagong had constructed two latrines near the school play ground and in front of the school building which were a source of nuisance to an adjoining school known as the Chowdhury High School, by reason of the foul smell which was injurious to public health. The complainant had asked for removal of the latrines in the interest of his own school which was said to be "fighting man illiteracy in the darkest and most backward area of the district." It seems that the latrines had previously been located elsewhere in the compound of the Kalarpole Senior Madrasah and had recently been shifted to their present site. The Sanitary Inspector had recommended that they should be shifted to the old site. M. Mohibullah was summoned to appear and was granted bail after which the case was assigned to a First Class Magistrate for disposal. On the 24th February 1962, the appellant in his capacity as Sub‑Divisional Officer wrote a letter to the Magistrate in the following terms:‑ " . . . . . . this is to inform you that I personally visited the site of the school and the laterine. There is no inconvenience of the school due to the reconstruction of the latrine. Action may please be taken in this light." The case was next taken up on the 12th March 1962. This was a date following a number of holidays after the 7th March 1962, which had been fixed for the recording of the evidence. The Magistrate made a short order to the following effect:‑ "Accused is present . . . . . case is taken up today. Seen the report of S. D. O. (S). No witness is also present. The accused is acquitted under section 245, Cr. P. C." A revision was moved before the Sessions Court, and an Additional Sessions Judge referred the case to the High Court recommending interference on the ground that the section of the Criminal Procedure Code which had been mentioned had no appli cation since no evidence had been recorded. Therefore, the acquittal under section 245 (1), Cr. P. C. was illegal, and it could not also be treated as falling under section 247, Cr. P. C. in the absence of the complainant, since the complainant was a public servant. It was added that from the order of the Magistrate it seemed that the sole reason for the acquittal was "the report of the learned S. D. O." The Magistrate's reliance upon this letter was described as "a serious fatal defect" and an observation was made that the letter "shows undue interference in the administra tion of justice." The reference came before a learned Single Judge of the High Court and was rejected, on the view that the "order amounts to an order under section 247, Cr. P. C." It was added that the original complaint by the Headmaster of the'', Chowdhury High School had been made through the Sub‑Divisional Officer, and that the Sub‑Divisional Officer had since then "inspected the locality and sent a letter to the trying Magistrate to the effect that he had been satisfied that there was no inconvenience to the school due to construction of the latrines." The learned Single Judge said that "in that view of the matter" he saw no ground for interference with the order of acquittal. The case accordingly came to an end, so far as M. Mohib ullah was concerned, but three months later, a Division Bench of the High Court issued a rule suo motu to the appellant to show cause why he should not be committed for contempt of Court, on account of his having interfered with the administration of justice by his letter to the trying Magistrate aforesaid. To this, the appellant made a reply which was briefly to the following effect. While out on tour on the 6th February 1962, to attend an election meeting, he passed by the Kalarpole Madrasah on the way back and was stopped by the Superintendent of the Madrasah and some respectable persons who drew his attention to the site of the latrine under reconstruction within the compound of the Madrasah and said that this had been made the subject of a criminal case. The appellant asked the Superintendent to come to an agreement with the opposite‑party, because he himself could not find that the reconstruction of the latrine was a source of inconvenience to any one. Later on, the Superintendent of the Kalarpole Madrasah informed him that no settlement could be made and this induced the appellant to act in the manner described below: "I then as a public servant considered it a duty to draw the attention of trying Court to the fact that I had occasion to visit the disputed locality and accordingly I wrote a letter with a bona fide intention to the trying Magistrate with the idea that he may examine me if necessary for a correct appreciation of the facts and circumstances of the case . . . . . . I had not the slightest intention of interfering with the administration of justice." He added that he regretted very much having issued the letter, that he never intended to interfere with the course of justice, but had written "solely with the bona fide intention of drawing the material facts of the case to the notice of the trying Magistrate." At the same time, he tendered an unqualified apology adding that he had written the letter "without realising that this letter would amount to any offence" and he humbly prayed to be excused. On the 30th November 1962, the case was taken up by the Divi sion Bench, and he put in a further apology saying that he was extremely sorry for having written the letter, that he sincerely regretted his action and offering an unqualified apology, he threw himself upon the mercy of the Court, and at the same time added:‑ "I undertake that hereafter I shall never make such a mistake and shall never write about any pending case in future." The learned Judges found the letter to be unauthorised and wholly outside the scope of the appellant's duties. They regarded it as interference with the administration of Justice and pointed out that the Magistrate's order made it clear that he had based his order of acquittal upon this letter. They then took up the question whether the apology should be accepted, and pointed out that the appellant had nowhere admitted having interfered with the administration of justice by writing his letter. They appear to have considered this action as one having an effect over the entire country, as will appear from the passage quoted below (if I have understood it correctly): "The opposite‑party undoubtedly holds a position of respon sibility and if he influences the duties of his subordinate and thereby interferes with the administration of justice which creates a situation in the country which needs a serious view of the matter to be taken by the Court of law, then there is no doubt that a serious view of the matter is to be taken as it is a duty of this Court to see that such thing may not occur in future, and thereby to save the administration of justice from internal and external influence." Citing a well‑known decision of the Judicial Committee in which it was observed that the power of summary punishment in con tempt should be used sparingly and only in serious cases, the learned Judges observed as follows:‑ "But at the same time we cannot shut our eyes to what is happening in this country as apparent from this case and over look the gravity of the offence committed in this case." They proceeded further to evaluate the apology and thought that the appellant's "real state of mind" at the time when he wrote the letter was not as mentioned in his affidavits, otherwise he would not have marked the letter as "confidential." This is apparently said with reference to the appellant's plea in his first affidavit that in writing the letter his purpose was to inform the Magistrate of what he knew concerning the matter, and to indicate that the Magistrate could examine him, if necessary, as a witness. Since a justification was attempted in the affidavit, but the plea in his supplementary affidavit was unqualified, they concluded that the appellant's action was not done bona fide or inadvertently. Finally, they considered that even if they accepted that the apology was unqualified and the regret was sincere, it would not amount to purging the contempt, but could only be taken into consideration in mitigation. At this point in their judgment, the learned Judges have made an observation which seems to aggravate the nature of the offence and is not strictly correct. They have said that the appellant admitted in his first affidavit. "that he knew that a criminal case was pending and in spite of that he went to the locality at the instance of some of the parties in that criminal case for inspection, which he made the basis of his letter to the Magistrate." The affidavit had made it clear that it was only when he was pass ing by this spot, that he was stopped by interested parties who asked him to see the latrines for himself. This is different from the suggestion made, namely, that at the instance of one of the parties he went out of his way to acquaint himself with the facts of a criminal case which he knew to be sub judice in another Court, at the instance of one of the parties. They finally decided that it was a gross contempt and that they could not accept his apology or allow him to go with a reprimand. They thought that the punishment should be such as would be an example to others. Accordingly, they imposed a fine of Rs. 500 with an alternative sentence of imprisonment. We have heard Mr. Hamidul Haq Chowdhury in support of the appeal and Mr. T. H. Khan for the State. The contention was raised for the appellant that his declaration that in writing the letter his intention merely was to indicate to the Magistrate that he had himself inspected the place, and had appreciated the potential of the nuisance and that he was willing to be examined on the point, had been brushed aside in an indirect fashion, leav ing on him a taint of insincerity. There was no direction to the Magistrate immediately to decide the case as if no nuisance existed, and had the case proceeded, an opportunity would have arisen to consider whether or not the appellant should be examin ed in the case. That opportunity never arose, since the accused was acquitted for lack of evidence. On the other side, emphasis was laid upon the effect created by the wording of the appellant's letter. It had clearly furnished a ground upon which the Magis trate had proceeded to acquit at a stage when there was no evidence before him. Not only that, it appeared to have gained reliance even from the learned Single Judge in the High Court, and consequently it was urged that the nature of the act had been. rightly judged by the High Court in relation to these effects, which were reasonably derivable from the words used in the letter. It is true that the letter may well have been more explicit o the point, but to regard it as a direction to acquit would probably be to weigh the expressions used too heavily in that sense. From one aspect, of course, anything in the nature of approach to judicial officer outside the Court while he is seized of a case, in relation to such a case, is per se an interference with justice. It is difficult to avoid that conclusion in the present case, but the appellant pleads mistake and honesty of intention, and there is no question but that due consideration must be given to these pleas in estimating the degree of his offence. Once it is possible to conclude that the word used do not, in themselves, constitute direction to acquit, it becomes necessary to consider whether the explanation that a piece of information, i.e. as to the possession o evidence regarding the case by the writer, which he was prepared t give, can be totally ignored. The appellant is a responsible office and in this case, he appears to have made a full statement of the facts before him and the considerations by which he was guided. To nullify the plea by an assumption of insincerity on his par does not, in my view, do him full justice. It has been know to happen that in the course of a trial, a private person inform the Court that he has evidence in his possession which he is pre pared to give, and in such a case ‑the Court is at liberty to receive or to refuse such evidence. Here the difference is that the appellant was placed in executive authority over the Magistrate, and such a statement as is contained in the letter, unless it was supplemented by an expression of willingness to give evidence i the case, might have been related by the subordinate to the fact of the writer being his official superior. That was risk attending such an action on the part of the appellant of which he should have been aware, but nevertheless the absence in the letter of an offer to give evidence is not in my view sufficient to charge him with insincerity in presenting the plea which he did. I am con sequently of the view that in evaluating the offence for the pur pose of exercise of the Court's power of punishment, that plea must be held in mitigation. There is in addition the apology which he presented to the Court. It is plainly absolute m its terms. Indeed, it was not t the High Court, but to the Magistrate's Court that an apology should properly have been directed, but that is immaterial, for the point under consideration is as to (1) whether the appellant appreciated that his act was within the mischief of contempt, b, interference with the administration of justice, (2) whether he regretted it, (3) whether his regret was sincere, (4) whether it was accompanied by expression of a resolution never to repeat the offence, and (5) whether he made humble submission to the authority of the Court. Each one of these factors is to be found in the supplementary apology. I am unable to see any feature o this apology which can stand in the way of its being accepted as an expression of complete repentence, and a firm purpose of amendment. It has not been accepted in that light by the learned Judges in the High Court, but in view of their finding of insin cerity in the appellants explanation that was not to be expected. In my view the charge of insincerity cannot be laid upon the appellant. As for the doctrine that an offence is to be forgiven if the offender expresses regret, truly repents his action, and makes a firm purpose of amendment, that is one which, if I may say so, the vast majority of the citizens of Pakistan would accept without question. There are texts in the Scriptures of Islam to the effect that to him who repents after his transgression and makes amends, mercy will be shown. It may be that a mundane authority might take a different view, having experience of the nature of human beings, but I do not find it possible to imagine that members of the East Pakistan Civil Service or Sub‑Divisional Officers are so much accustomed to committing such offences and thereafter presenting insincere expressions of repentance and intended reformation, that here mercy should properly be withheld. The learned Judges have emphasised the need of making an example of the appellant, and have based this upon the need to check "what is happening in the country." I am not aware that offences of this kind are so wide‑spread and so difficult to detect that any one person who is found in the fault should be punished with a severity capable of acting as a deterrent. There is no doubt that the mere fact of this officer having been brought before the Court and having undergone the disgrace of a public trial will by itself have the necessary effect upon all members of his service, and upon all persons within the administration generally. That is deterrent which, to persons of the official classes, weighs far more heavily than the fact of any concrete punishment having been suffered in addition. If the fault be one of which it was necessary to make an example, in my opinion that purpose was already fulfilled by the fact of the case having been commenced and taken to a conclusion ending in a verdict of guilty. For these reasons, I would hold that by his letter, the appel lant did indeed commit an act which constituted an interference with the administration of justice, and I would therefore uphold the conviction. But, I do not consider that in the circumstances of this case, anything in the nature of punishment is necessary beyond the fact of the appellant having been dragged through a public trial and held up to public disesteem for committing a administrative and judicial error in the exercise of his functions. He had made a full, unqualified and, in the circumstances, com plete apology, and I consider that that should have been accepted, and that the proper order in the case should have been that after recording the conviction, the Court having accepted hi apology should have let him off with no more punishment than, an admonition and a direction not to repeat the offence. FAZLE‑AKBAR, J.‑I agree. HAMOODUR RAHMAN, J.‑I agree. S. A. RAHMAN, J.‑I have seen the judgment which has been recorded in this case by my Lord, the Chief Justice I concur in the proposed order but would like to add, with respect, that I find F it difficult to credit the appellant with complete sincerity when he suggested that he intended his letter to the trial Magistrate as an invitation to him to call him into the witness‑box to depose to facts which had come to his knowledge by inspection of the spot. I find this interpretation to be inconsistent with the circumstance that the letter he wrote to the trial Magistrate was marked "Con‑1 fi4ential". It appears to me, therefore, that the explanation m question was an afterthought with the appellant. Having realized that he had committed the offence of contempt, he tried to suggest an explanation of his conduct which, however, does not see to be borne out either by the contents of the letter or by the superscription of it, as confidential. I agree, however, that in view of the apology tendered by the appellant in the High Court and his genuine repentance and assurance of avoidance of such conduct in the future, his apology should have been accepted and he should have been let off with an admonition. B. Z. KAIKAUS, J.

‑With great respect I do not find it possible to accept the explanation of the appellant that by the letter which he sent his intention was that he may be examined as a witness. I have little doubt having regard to the circumstances and the contents of the letter that he was giving a direction to the Magis trate to act in accordance with the view he had formed on inspec tion of spot. For convenience of reference let me reproduce the letter. It runs: "Confidential Office of the Sub‑Divisional Officer, Sadar (South), Chittagong. Memo. No. 310/G, dated 24‑2‑1962. To Mr. M. U. Chowdhury, Magistrate 1st Class, Chittagong. Subject: Reconstruction of Pucca Latrine of Kalarpole Madrasah. Ref. : C. R. Case No. 977/61, dated 10‑10‑1961. With reference to the above subject this is to inform you that I personally visited the site of the school and the Latrine. There is no inconvenience of the School due to the reconstruction of the Latrine. Action may please be taken in this light. (Sd.) A. K. M. Awwal, Sub‑Divisional Officer, Sadar (South), Chittagong." The first sentence informs the Magistrate that the Sub‑Divisional Officer to whom he is subordinate has inspected the spot. The second sentence does not state what the Sub‑Divisional Officer observed at the spot, nor does it purport to be only an opinion. It is an authoritative and categorical pronouncement on the matter in dispute before the Magistrate. "There is no inconvenience" it says. The last sentence directs the Magistrate to act in accordance with the pronouncement in the second sentence. This last sentence is in form of a polite command which ordinarily includes the word "please". It is clear that the Sub‑Divisional Officer having reached the conclusion that a complaint pending before a Magistrate subordinate to him is unfounded is sending a confidential direction to the Magistrate that the complaint is baseless and that he should act accordingly. I see no ground for presuming that the appellant did not know the ordinary consequence of his act. He knew well the effect which his letter containing a categorical statement that the complaint before the Magistrate was baseless would have on the Magistrate even if the last sentence of the letter was not there. But by the last sentence the appellant gave. a positive direction. Why did the appellant write a confidential letter if his inten tion was not as is stated above? Neither before the High Court nor before us has there been any attempt to explain why a confi dential letter was written. Addressing to a Court a confidential communication which contains a statement of facts or conclusion relating to a matter in dispute before the Court is per se contempt. It is a wholly improper method of affecting the mind of Court and an inter ference with the course of justice. The contempt is aggravated if such statement of fact comes from a superior. As regards sentence, the supplementary affidavit filed by the appellant does state that he is offering an unqualified apology and that he undertakes not to repeat what he has done and if the matter rested here I would have been prepared simply to record a conviction and to award no sentence. Difficulty is created, however, by the fact that while on the one hand the appellant tendered what was prima facie an unqualified apology he on the other hand refused to admit that he had committed any contempt. At two places in the judgment of the High Court there appears the statement that the appellant had not accepted having inter fered with the administration of justice. When the appellant G filed the petition for special leave before us it was open to him to have contended (if this was correct) that the High Court had mis understood his plea and that in fact he was admitting having committed contempt and was apologising for doing so. However, not only did he not allege anywhere in his petition for special leave that his plea was misunderstood, but he in plain terms accepted his plea before the High Court to be that he had not committed any contempt and he contended that he had been wrongly convicted. In para. 14 of his petition for special leave he said: "That their Lordships however did not accept the plea of the petitioner and arrived at the finding that the letter written by the petitioner did amount to interference in the administration of justice and therefore amounted to contempt of Court and accordingly convicted the petitioner by their Lordships order dated 30th November 1962." According to what appears in this paragraph his plea before the High Court was that the letter was not an interference in the administration of justice and did not amount to contempt. Again, the sixth ground of attack in his petition for special leave is the following "For that in the facts and circumstances of the case the peti tioner should have been held not guilty of contempt and his explanation ought to have been accepted by the Court:'." Here he has clearly stated that he had given an explanation which should have been accepted and that he should not have been held guilty. In the petition for special leave he made a severe attack on his conviction by the High Court and in as many as nine grounds characterized his conviction as illegal and without juris diction. He contended that the High Court had no jurisdiction because Mr. Justice Sattar had already exonerated him and also because if no action was taken by Mr. Justice Sattar no proceed ings could subsequently be taken by the High Court. He further objected that, a suo motu exercise of jurisdiction by the High Court was illegal and that some complaint by the Magistrate to whom the letter was sent was essential. He contended too that on facts the conviction was unjustified. Out of ten grounds there was one ground only in which he said that ‑he should have been dealt with, leniently as he has tendered an apology. When he filed his concise statement he repeated that his plea as to his not having committed contempt had been rejected by the High Court and he prayed that his conviction be set aside and this was the only prayer in the concise statement. He did not even suggest anywhere that he should be dealt with leniently. In contempt cases Courts have never accepted the apology of a person who does not admit that4he has committed any offence. What is called unqualified apology necessarily means that there should be an admission as to the commission of a contempt. The reason why a person who had offered an apology is deal with leniently is that he feels that he has done something wrong and is penitent, but if a person does not admit that he has violat ed the law there is no question of penitence. It appears to me that the appellant regards an "unqualified apology" as consistent with innocence. Even in his first affidavit he had offered an "unqualified apology". Later events leave no the slightest doubt that he was not offering at that time any unqualified apology. In his grounds for leave to appeal and ii his concise statement he clearly referred to what was stated in his first affidavit as an explanation of events which if accepted would prove him innocent and he made a complaint of it that this explanation had not been accepted by the High Court and he had been convicted. If the apology is not to be acted upon there does not remain any ground for interference with the sentence awarded which apart from the apology is not excessive and I would dismiss the appeal. In terms of the view of the majority, the appeal is allowed to this extent that the conviction is maintained, but the sentence of fine is hereby set aside, and in its place is substituted an admoni tion and a direction not to repeat the offence. A. H. Order accordingly.