P L D 1954 Federal Court 313 (PLP)

MUHAMMAD MUNIR, C. J.--‑This case, which comes to us on appeal by special leave, recalls an incident which happened in the Chief Court of Sind in September, 1951, and led to summary proceedings in contempt before a Bench of all the five judges of that Court, who unanimously found the appellant guilty and sentenced him to one month's impri sonment. As it is the first case of its kind, the facts require statement in some detail. These are given by Tyabji, C. J., in his leading judgment and are as follows :‑ Appellant Israr Hussain is an advocate of the Chief Court of Sind with 23 years' practice at the Bar. He was originally practising in the District Courts of Jubbalpur and came over to Pakistan after the Partition. He took a house on lease from Qamar‑ud‑Din, the owner of the house, and some time in 1951, and possibly earlier, a dispute arose between him and his landlord. The owner began to build on a portion of the premises which the appellant claimed was in his possession and covered by the lease. He, therefore, objected to the landlord's action and instituted proceedings under section 145 of the Cr. P. C. before a Magistrate in Karachi who found ag4inst the appellant. Thereupon the appellant instituted against Qamar‑ud‑Din and six others a suit, Suit No. 388 of 1951, on the Original Side of the Chief Court, praying for a permanent injunction restraining the owner‑landlord from "carrying out any construction on the premises occupied by me". With the plaint, the appellant filed an application for temporary injunction in terms in which the permanent injunction was prayed for. This application came up before Mr. ' Justice Muhammad Bachal, who issued an interim injunction ex parte, with a notice to the defendants to show cause why it should not be confirmed for the duration of the suit. After this the proceedings were transferred to Mr. Justice Vellani who seems to have been nominated by the Chief judge for the disposal of civil miscellaneous matters on the Original Side. The application was fixed for hearing on the 13th August, but on that day parties asked for an adjournment on the ground that there was a possibility of the matter being compromised. The hearing was accordingly adjourned to 20th August, on which date, no compromise having been effected, a request was made to the Court to inspect the site. The learned judge went to the spot on 21st August, and wrote an inspection note on the same day. When the matter was taken up in Court, the appellant applied for permission to put in an affidavit, and this request was allowed. On the neat hearing, the 28th August, the appellant made another application for leave to file further affidavits, but this application was rejected by the learned judge. Up to this stage, the appellant was represented by Mr. Hafiz, but now he engaged another counsel, Mr. Aziz, who, on 10th September, made some other application in support of which, contrary to the orders of 28th August, he put in four fresh affidavits. On the next hearing, the 19th September, Mr. Aziz filed still another application accompanied by an affidavit under rule 75 of the Rules of the Chief Court. As Qamar‑ud‑Din defendant wished to file a counter‑affidavit in opposition to the application under rule 75, the hearing was adjourned to 24th September. When the case was called on the 24th September the appellant' presented in Court the following application under section 25 of the C. P. C. :‑ It is prayed that on the grounds in the accompanying Affidavit the Hon'ble Court be pleased to make a report to the Provincial Government to transfer the suit herein to any other High Court of Pakistan, for disposal of the application made under Order 39, rules 1 and 2 C. P. C." The accompanying affidavit was a lengthy document, and since it is that affidavit which is alleged to constitute, and has been found to amount to contempt, it needs. reproduc tion in extenso. The affidavit stated ; "I, Syed Israr Hussain, son of S. Muhammad Raza, Muslim, aged about 48 years, practising Advocate at Karachi, residing over Gulshan Hotel S. R. 7/10, South Napier Road, Karachi, do hereby solemnly declare and affirm as under: ‑ (1) That I am the plaintiff in the case. (2) That this is a suit filed by me for injunction restraining the defendants, their servants or agents from carrying out any construction on the premises occupied by me. (3) That I am a Mohajir and family man having a large family consisting of old and infirm ladies, ailing wife, grown up and minor children and have been living in the present premises for the fast three years. (4) That on account of the housing difficulties in Karachi and the above circumstances, the question involved in the suit is almost a question of life and death for me. (5) That during the course of these proceedings, when the compromise talks were going on between my Advocate and the Defendant No. 1 and his Advocate, the Defendant No 1 in the presence of his Advocate had said that he did not care if the plaintiff goes to Hell. When I came to know of this talk from my Advocate, I protested to the Defendant No. 1 and reminded him that he had apologized to me for the mischief done to me and was. Prepared to give me alternative accommodation and now he was talking in that way. On this the Defendant No. 1 got wild and threatened me saying that all that matter was gone and that now unless I agreed on taking merely a passage, he would have me thrown on the street as the Hon'ble Judge had been the Legal Adviser of the Defen dants 2 to 8 Abdullah Bhai Muhammad Ali's father, Mr. Muhammad Ali, and that they would arrange everything here. (6) That without in any way reflecting upon the integrity and honesty of this Hon'ble Court, I submit that con sidering what had happened before the Hon'ble Court in this matter, that it will be just, convenient and proper that this matter be transferred from the Court of Your Lordship. (7) That in this matter the application under Order 39, rule 2 C. P. C. came for hearing before the Hon'ble Court and from the beginning the attitude and behaviour of the Hon'ble Court as visible to me was that the Hon'ble Court has not permitted me either to explain my aspect of the case or to even examine the sketch and the inspection report of the Lower Court on record. (8) I am practising as an Advocate. I have put in a practice of about 23 years, within my information and knowledge of law, there is no provision of law or Court Rule which grants a right or liberty to a judge to lose temper and grow hot, make faces and burst into outbursts of anger or to brow‑beat one party. In this matter the Learned judge got angry for reasons better known to him and tried to brow‑beat me and my Advocate, Mr. Hafiz. He spoke loud and refused to either understand my aspect of the case, or to even examine the sketch and the inspection report of the Lower Court, on record. He stopped and ordered Plaintiff to sit down and when my advocate again attempted to put my case, the Hon'ble Court said that it being only the question of passage, the parties should settle it. (9) That on the next hearing, the Hon'ble Court itself suggested that it would see the premises. Accordingly, the Hon'ble Court went to the site but did not note the position of the room, latrine, passage, sewage pipe, etc., as alleged by both the parties in spite of request by the plaintiff's advocate and on being pressed, the Hon'ble Court remarked that he had not come there to hear the case. (10) That the inspection made in the inspection report regarding the original position of the room is not correct, as according to the inspection note, the Plaintiffs room extended to 2 or 3 feet of the first pillar, whereas in fact, the said room extended to 2 or 3 feet of the second pillar. (11) That on submission being made for correction, the Hon'ble Court admitted the position taken up by the Plaintiff but did not make the necessary correction and left the whole thing on his own memory with the result that the inspection note might be mis‑interpreted by the defendants or by the Appellant Court. In such a ; ase, the plaintiff will have no option but to cite the Hon'ble Judge in evidence which will be very difficult. . (12) That the Defendant's Advocate having once filed a counter Affidavit, had no right under. Rule 75 of the Chief Court Rules to file a second affidavit but on the suggestion of the Hon'ble Court, the Defendants filed another affidavit, consequently the Defendants filed another affidavit which was accepted by the Hon'ble Court without entertaining any application from the Defendants. Besides the. Hon'ble Court did not allow the Plaintiff to file a rejoinder to the Defendants' second affidavit. (13) Under the circumstances, I got afraid and decided to engage another Advocate and engaged Mr. A. Aziz, and filed four affidavits on 10th September, 1951, and gave copies thereof to the Defendant's Advocate. (14) That the application under Order 39, rule 2, and section 145 C. P. C. again came up for hearing before the Hon'ble Court on 19th September, 1951. On taking up the case and seeing the affidavit of the Plaintiff, the Hon'ble Court burst into anger and spoke at the top of his voice in an obviously discourteous manner, thereby humiliating and lowering m~ advocate, Mr. A. Aziz, in the eyes of his clients and. several public sitting there. However Mr. Aziz withstood it with patience and moved the application under Rule 75 C. C. Rules, and the matter was fixed for hearing on 24th September, 1951. The Advocates, who were present in the Court at this occasion, will, I am sure, bear testimony to these facts. (15) That considering the threats of Mr. Qamar‑ud‑Din and the well‑known dictum that Justice should not only be done, but must also appear to be done', it is submitted that this Hon ble Court be pleased to report to the Provincial Government for transfer of this matter to some other High Court. (16) That during the course of hearing of this matter, the Hon'ble Court had on several occasions expressed himself in such a manner that it has given me an appre hension that the above matter will be decided against him. (17) That the above statements are of my knowledge. (Sd.) S. Israr Hussain Deponent". 24th September 1951. The learned Judge read the application but not the affidavit, and in view of the unusual nature of the application adjourned the hearing to 1st October. On the following day, the affidavit was splashed in the press and came to the notice of the learned judge, who on 27th October made the following report to the Chief judge: ‑ "On Monday, 24th September 1951, Suit No. 388/51 was called up before me as it was on the Miscellaneous Board for the hearing of applications. When it was called up, Mr. Aziz, advocate for the plaintiff, stood up and said he had filed an application under section 25, C. P. C., for transfer of the case. I asked him whether the application lay before me or before the C. J., but he maintained that it lay before me. I then read the section and the application. I noticed that the affidavit was a long one but did not read it then. Mr. Aziz then stated on enquiry from me that a copy of the application and affidavit had been supplied to Mr. Muhammad Sadiq, Advocate for the defendants. Mr. Muhammad Sadiq, acknowledge receipt and said the object was to delay the matter and referred to the prayer, which appears in the application. He waived notice of the application and I stood the matter over to 1st October, 1951. I was not then aware of anything more that an unusual application had been‑made and was unaware of the scandalous matter contained in the affidavit, which was not then read. The contents of the affidavit have since been brought to my notice and as it contains matter which I consider amounts to contempt of Court, I think it right to bring the matter to the notice of the C. J." On perusing this report, the Chief Judge issued a notice to the appellant and his counsel Aziz to show cause why they should not be punished for contempt. The matter was heard by the Chief Judge and the remaining four judges, including Mr. Justice Vellani. The leading judgment was delivered by the learned Chief judge acquitting Aziz but convicting the appellant of contempt and sentencing him to simple imprisonment for one month. Mr. Justice C0nstantne wrote a separate order, but agreed with the learned Chief Judge on both the points, namely, that the affidavit amounted to contempt, and that the appellant deserved the sentence proposed. The other three judges all concurred. The petitioner applied for special leave to appeal to this Court from the judgment of the Chief Court, and on 26th March, 1952, he was allowed to d6 so by the following order :‑ "The petitioner, Israr Hussain, now practising as an Advocate in Sind Chief Court, instituted a Suit No. 388/51 in that Court and in connection therewith made an appli cation for a temporary injunction under Order 39, C. P. C. and obtained an ex pane order. When this application came up for final hearing on the 24 September, 1951, the petitioner, Israr Hussain, put in an application supported by an affidavit for a transfer of the case under section 25 C. P. C. from the Chief Court of Sind to some other High Court. As the affidavit aforesaid was found to contain certain statements of an objectionable nature, proceedings were started under the Contempt of Courts Act against the petitioner Israr Hussain, and he was convicted and sentenced to suffer simple imprisonment for one month under section 2 of. Act XII of 1926. Israr Hussain has now presented the present petition for special leave to appeal against the order aforesaid. The main ground urged before us was that the petitioner, Israr Hussain, had acted in good faith in stating his grievances to the Court: that the statements were not mere scandalous libel or recrimination but were material allegations which constituted the foundation of the petitioner for transfer and were made before those who 'had power to examine whether they Were true or false; that such a course was justified in law as it was made in support of his own interest by the petitioner; that as the application for transfer was still pending disposal and no opportunity was afforded to substantiate the allegations, the conviction and sentence could not be sustained. We think that the matter requires consideration and examination. Leave to appeal prayed for is, therefore, granted. We direct that the petitioner, Israr Hussain, shall not be taken into custody pending the disposal of his appeal in this Court. On behalf of the appellant, we have now heard Mr. Rizvi who has merely reiterated the arguments that appear in the order granting special leave to appeal and who has wisely refrained from attempting to support them by irrelevant authorities. If the affidavit is analysed it will be found that it contains the following allegations against Mr. Justice Vellani : ‑ (1) That the judge had been the Legal Advisor of the father of defendants 2‑8 and that defendant No. 1 in the A course of negotiations for compromise had asserted in the presence of Mr. Hafiz, Advocate of the appellant, that defendants 2‑8 had undertaken to arrange matters with the Judge. (2) That the judge had not permitted the appellant to explain his case or to examine certain documents. (3) That the judge had prepared a false and incomplete note of inspection which he had, on request, refused to correct so that the note may be misinterpreted by the defendants or the Appellate Court. (4) That in the matter of permitting affidavits to be filed the Judge had been partial because he had permitted the defendants to file fresh affidavits when they were not entitled to do so, but had disallowed the appellant from doing so though he was entitled to it. (5) That in Court, on more than one previous occasion the Judge had blustered like a bully. He lost temper and grew hot, but also made faces, howled in anger and indulged in brow‑beating the appellant and his advocate for reasons better known to him. He spoke loud, refused dither to understand the appellant's case or to examine an important document and ordered the plaintiff to sit down. On .19th September, on seeing the affidavit of the appellant, he again burst into anger, spoke at the top of his voice, and humiliated the appellant's advocate and lowered him in the eyes of his clients and some member, of the public present in Court. (6) That justice was not only not being done by the Judge but it did not appear to be done by him. A perusal of the affidavit left no doubt in the minds of the learned judges of the Chief Court, and I share their conviction fully, that this was one of the worst contempts B of a superior Court ever committed by a party. Not only] is the learned judge's conduct ridiculed in this affidavit in an extremely vulgar manner, but the whole of that document amounts to a scurrilous personal abuse of him as a judge. The judge was dishonest and partial and was not only refusing to hear the appellant and his counsel but was bent upon brow‑beating them both. He had been partial in the matter of affidavits and dishonest in the preparation of the inspection note, and did not have sufficient independence or strength of character to resist the recommendation of a quondam client of his. It was conceded in the Chief Court that the learned judge had never been the legal advisor of defendants 2‑8, and neither the appellant nor his learned counsel was able to explain what the affidavit meant when it asserted that the learned judge did not permit the appellant or his counsel to examine the sketch and the inspection report of the lower Court. It is certainly not alleged that any application for the inspection of these documents was made and refused. So far as the bearing of the learned judge in Court is concerned, the affidavit seeks to make out that he was by no means a serene and impartial judge patiently hearing the parties with a view to doing justice between them, but a mere blusterer whose only object was to brow‑beat and humiliate one party, a conduct which would give to those present, in Court, or who read an account of the proceedings the impression that far from justice being done by him, there was not even the semblance of a desire on his part to do justice. On the contents of the affidavit, there can be no doubt whatsoever that the appellant, unless he can bring himself within some recognised exception, was guilty of contempt. The rule which is based on obvious public grounds has never been doubted that Judges of superior Courts are entitled to what may be called legal respect, and that no one, whether a party or not, is entitled to scandalize them by imputing to them motives or judicial dishonesty or by holding up their conduct in Court to ridicule. In The Queen v. Gray (2 Q B 1900 p. 36.) Lord Russell of Killowen, C. J., defined contempt inter alia as any act done or writing published calculated to bring a Court or a judge of the Court into contempt or to lower his authority or to obstruct or interfere with the due course of justice and held that a scurrilous personal abuse of a judge was an undoubted contempt. The present case is much worse because here the abuse was publicly flung in the face of the judge in the form of a solemn judicial document, while he was about to hear a case to which the appellant was a party. In James Wallace's case (L R 1865‑7 P C 283.) a letter written by an advocate to the Chief Justice of the Supreme Court of Nova Scotia reflecting on the judges and on the administration of justice generally in that Court was held by the Privy Council to .be contempt punishable with imprisonment and fine. In Parashuram Detaram Shamdasani v. Emperor (A I R (32) 1945 P C 134.) Lord Goddard distinguished an insult to counsel or to the opposing litigant from an insult to the Court itself, or to members of a jury who form part of the Tribunal. The only case cited by Mr. Rizvi was that of Sham Lal, Advocate, H. C. Lahore. In the matter of (A I R 1932 Lah. 502.) where a statement by counsel before a properly constituted Bench of the High Court that he had instructions from his client not to argue the case before the Bench as constituted was held as involving a reflection on the integrity of the judges of that Bench, and therefore contempt though a mere disapproval of the conduct of counsel was held to be sufficient in the circumstances of that case. In the Bombay High Court case "In the matter of Tulsidas Amanmal Karani" (I L R (1941) Bom. 548) an attorney, who in his capacity of a suitor had sent a notice under section 80 of the Code of Civil Procedure to the judge of the Small Cause Court alleging that the judge had acted with prejudice, bias and malice in the course of his judicial duties, was held to be in contempt and was suspended from practice. The other species of contempt which consists in doing an act or publishing a writing which tends to interfere with the due course of justice is treated differently in text‑books and judgments from the contempt that is committed by scandalising a judge, but on closer consideration it will be found that attacks on or abuse of judges also interfere with the due course of justice because such acts which are in the nature of blackmail tend to deter judges from dis charging their duties unconcernedly, undermine the public confidence in their decisions and thus tend to interfere with the due course of justice. Thus whatever test may be applied to the affidavit in question, it cannot but be held to be contempt. Mr. Rizvi found it impossible to urge that the affidavit in question did not come within the ambit of the aforesaid definition of contempt and had to admit that the contents of that document were contempt ex facie. He, however, contended that there was no intention to scandalise the Judge, that the allegations were justified and could be supported by evidence if the appellant had been given an opportunity to do so and that because they were made to support an application for transfer they were privileged. After hearing the arguments I find no substance in any of these contentions. If a person scandalises a judge of a Superior Court in such a manner as to bring him within the definition of contempt, it cannot be good defence to the proceedings for contempt that his intention was not to scandalise, because the essential question in such cases is the tendency of the writing to lower the authority of the judge by bringing hint into disgrace and not the intention underlying the writing. No one can be allowed to defame, ridicule or abuse a judge in his public capacity even with the best of motives because if that sort of thing were once held to be permissible the whole judicial system would readily be brought into utter contempt. There are several authorities in support of the proposition that the test in such cases is whether the writing tended to interfere D with the due course of justice and not what 'the intention of the writer was (e.g., Superintendent and Legal Remembrance of Legal Affairs, Bihar v. Murali Manohar Prasad (1941 I L R 20 Pat. 306.) and I know of no decision to the contrary and none was cited before us. The Chief Court in their judgment have referred to some cases cited on behalf. of the appellant where it was held that offensive and libellous references to the presiding officers. of subordinate Courts in applications which are maintainable in law are not actionable in contempt. But as pointed out by Tyabji. C. J., these cases are irrelevant because the real question in these, cases was whether the applicant had committed an offence under section 228 of the Penal Code of which intention to insult is an essential element. It is obvious that where such intent cannot be proved because the object of the applicant in making the application was to obtain some statutory relief there can be no conviction for the kind of contempt defined in that section. In the present case, however, except for purposes of sentence, there is no question of any intention to insult because there is no prosecution under section 228 of the Penal Code. The contention that the allegations were justified and the complaint that the appellant was not given an opportunity to substantiate them assume that in summary proceedings for contempt where such contempt consists in scandalising a judge truth is a valid answer. But neither before the Chief Court nor before us was cited any authority or opinion that, where proceedings in contempt are initiated against a person, who has scandalised a Judge of a superior Court, truth can be successfully set up as a defence. The whole principle of the Law of Contempt is against any such defence, and if the law were as contended for, the whole administration of justice would be brought into disrepute because in that case the honour of the judges would be at the mercy of disgruntled litigants who might with impunity attack the judges and when proceedings in contempt were taken against them; bring them into further contempt by pleading truth and offering to prove it. Judges would thus be con stantly engaged in defending their own personal honour against the onslaghts of persons who are parties to causes pending in their own Courts. And where a judge has thus been dragged into a forensic arena, public confidence in the administration of justice by him would be completely gone and a few such instances would be sufficient to expose the whole system to public ridicule. I now proceed to consider the third and the most emphasised defence, namely, that the affidavit was made on a privileged occasion, the occasion relied upon being the necessity for an application under section 25 of the Code of Civil Procedure., That section is obviously inapplicable where a High Court is not presided over by a single judge but even where, that condition is satisfied the cases con templated by the section appear to be those where the Judge is bound to feel embarrassed in the discharge of his judicial functions, as for instance, where he is interested in one or both of the parties, or in the subject‑matter of the dispute, or where he has at a previous stage been officially associated with the matter that has come up for adjudication before him. The section does not at all justify a party to a proceeding to abuse the judge or to accuse him of judicial misconduct, dishonesty or partiality. We cannot imagine that, with 23 years' experience at the Bar behind him, the appellant was not aware of or had any doubt about this position. He had no authority or precedent in support of his view and he consulted none of his senior colleagues, not even his own counsel, to enlighten him on the subject. Therefore even if an application for transfer can be supposed to furnish an occasion to scandalise a judge without incurring; the risks of an action for contempt, such occasion did not in law exist and the plea of privilege completely disappears, rendering alleged bona fides wholly irrelevant except in regard to the quantum of punishment. But is the appellant right in the assumption that where a judicial officer is scandalised in an application for transfer which lies, contempt becomes a legal impossibility ? In my opinion, there is nothing in the law to support that proposition or to preclude the High Court from taking action for contempt in appropriate cases. But since the High Court takes action only where substantial and not merely technical contempt is committed, such cases can be explained and distinguished on the ground that the motive underlying the allegation being to obtain legal redress no question of taking action in contempt would ‑ arise if the applicant for transfer had a genuine grievance which he put in a temperate and properly worded document. But though that may be the factual position there is no law and none has been cited before us that where a party in an application for transfer makes wanton, reckless and uncalled for allegations against a judicial officer, such allegations are immune from the penalty for contempt merely because they occur in an application for transfer. On the contrary, there are cases where action for contempt was held to be competent even where a Judge was scandalised by a party in the taking of a legal or statutory step. In a recent case which does not seem to have been published the Bombay High Court convicted a barrister of contempt because in an application for the transfer of a criminal case he had alleged that the Magistrate before whom the case intended to be transferred was pending had mortgaged his conscience to one of the parties. As the barrister was an advocate entered on the rolls of the Lahore High Court, the Deputy Registrar of the Bombay High Court reported the matter to the Lahore High Court enclosing with his report a copy of the judgment by which the barrister had been found guilty of contempt. That judgment stated the following reason for the barrister's conviction :‑ "it is a matter of very great regret to us that Dr. Chaudhri, a member of the English Bar and an Advocate practising in the Mufassil Courts, should have been so carried away by the enthusiasm for the cause of his client as to make allegations in regular applications made to Courts which clearly amount to contempt and to scanda lising the Court. The foundations of society and of good order in the State rest in a large measure on the confidence which the public has in the integrity, in the impartiality and in the dignity of the Court. It is the duty of all, particularly of the Advocates who are officers of the Court, to do nothing which undermines that confidence. The statement of Dr. Chaudhri in the applications made to the Sub‑Divisional Magistrate, viz., that the learned Magistrate had mortgaged his conscience to one of the parties to a proceeding pending before him is a shocking statement to make ...... An advocate owes his duty to his client. But that duty can be performed without forgetting the duty and respect which he owes to the Court before which he practises". The Lahore High Court commenced disciplinary pro ceedings against Dr. Chaudhri, and the Bench which dealt with the matter and of which I was a Member, in the course of the proceedings reported as In the matter of Dr. K. S. Chaudhri (P L D 1953 Lah. 244.) made the following observations about the judgment of the Bombay High Court, the Law of Contempt, and the duties that an advocate owes to his client and to the Court in which he practises :‑ "Any allegation which undermines the confidence of the public in a Court of justice is a contempt of that Court. And public confidence in a Court is undermined as much by attributing dishonesty and corruption as partiality or incompetency to it. 'The arraignment of the justice of the Judges,' said Mr. Justice Wilmot, 'is arraigning the King's justice ; it is an impeachment of his wisdom and goodness in the choice of his Judges and excites in the minds of the people a general dissatisfaction with all judicial determinations and indisposes their minds to obey them ; and whenever men's allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice.' It does not make the slightest difference whether the contempt of a Court is committed in that Court, or in a subordinate Court, or in a superior Court, or on the roadside, or in a club room in Pakistan or outside Pakistan, and it has never been doubted that a contempt of Court by a member of the legal profession is a 'reasonable cause' for taking‑ dis ciplinary proceedings against him, the reason being that any such conduct on the part of an Advocate reveals a mental defect which, so long as it lasts, renders him unfit to remain a part of the system which he seems to damage by bringing it into contempt." I adhere to that opinion still and with greater conviction, and nothing has come to my notice since to make me entertain any doubt as to the correctness of that principle. There are at least two pre‑partition Full Bench cases, one from the Allahabad High Court, In the matter of Dwarka Prasad Mithal (I L R 46 All. 121.), and the other from the Patna High Court, Shiva Kumar Jha (1929 I L R 8 Pat. 575.) in which it was held that statements in applications for transfer making grave and scandalous charges against judicial officers or imputing prejudice, unfairness or corruption to them amount to pro fessional misconduct on the part of the legal practitioner who makes them, and this could have been held only if the making of such charges were considered contempt. Reference has already been made to the cause of Tulsi Das Amanmal Karani (I L R 1941 Bom. 548.), where an advocate was held to be in contempt for having made allegations of prejudice, bias and malice against a judicial officer in a notice of suit under section 80 of the C. P. C. A case is cited at page 218 of the second edition of Tekchand's Law of Contempt, "Jeevan Lal Gauba v. The Chief Justice and Puisne Judges of the High Court of Judica ture at Lahore", where the High Court of Lahore held that imputing unfairness to the High Court in the grounds of appeal to the Privy Council constituted contempt. The case went up to the Privy Council but the Privy Council refused leave to appeal. It will be noticed that the cases referred to by me while considering the defence of privilege are all cases where a Court was scandalised on an occasion the existence of which was recognised by the law as, for instance, in an application for the transfer of a case, an application for leave to appeal to a superior Court or the statutory notice to sue a public servant. Despite the fact that there was an occasion to ask for legal redress or relief, it was held that the occasion could not be utilized to defame or scandalise a judicial officer. If the plea of privilege had been a valid defence in the Law of Contempt, it is obvious that no action for contempt would have been competent in such cases. Both in the Chief Court and before us, it seems to have been assumed by the appellant that the Law of Contempt like the Law of Defamation recog nises justification and privilege as good defences. This assumption is wholly unfounded because there is no such thing in law as justified contempt or privileged contempt and that part of the Law of Defamation which allows pleas of justification and privilege, absolute or qualified, to be G taken in defence is wholly irrelevant to the Law of Contempt. I am, therefore, of the view that none of the grounds raised against the conviction can prevail and that the appellant has been rightly found guilty of contempt. An appeal for the reduction of the sentence to that already undergone was made before us by Mr. Rizvi. It is not the practice of this Court to interfere with sentence which is essentially a matter of discretion for the Court ' against whose judgment appeal by special leave is brought, before us. All the five judges of the Chief Court have taken the view that the appellant's object or intention was to scandalise the judge, that the contempt was of an extremely serious character, and that he deserved more than a nominal sentence. The maximum sentence in such cases is that of six months' imprisonment and a fine of Rs.

200. We are unable to discover in the judgment of the Chief Court anything which might tend to show that in assessing the quantum of punishment the learned judges have misdirected themselves by relying on any irrelevant circumstance or by over‑looking any extenuating circumstance to such a degree that it should become necessary for this Court to tell them that there should have been no sentence of imprisonment in this case or that the imprisonment should have been for a term of less than one month. The contempt was of a very serious character, it was of the highest Court in the Province and was committed by a party to the proceedings and in the very face of the Court. Though the appellant said in the affidavit that he was not casting any reflection on the integrity or honesty of the Court, it is clear that this averment was false and hypocritical or a meaningless formality. The appellant never submitted himself unconditionally to the judgment of the Court, and though after the hearing when he must have discovered the reaction of the judges to his conduct, he tendered an apology it was 'without prejudice to the above' and only "for such language ...as may be capable of being construed as disrespectful which I did not intend", I fully appreciate the anxiety of the learned Judges to take a serious view of the appellant's conduct which they could have overlooked only at the risk of a grave danger to the administration of justice within their jurisdic tion. An unconditional apology on behalf of the appellant was tendered before us by Mr. Rizvi. An apology in contempt cases can be a mitigating circumstance only if' the contemner surrenders himself unconditionally to the judgment of the Court and an apology after every conceivable defence has been taken, adjudicated upon and repelled and an appeal to this Court has failed can hardly be considered to be genuine or received with sympathy. The appellant has to apologise not before us but before the Court which he attempted to harm, whose authority he attempted to lower, and which convicted and sentenced him because that Court though functus officio in the matter of conviction can still accept the apology and remit the punishment under the Act of 1926. Further by interfering with the sentence we would be indirectly expressing the opinion that no further step against the appellant in consequence of the conviction, as for instance that he should be suspended from practice or not allowed to proceed with the suit if it is still pending, should be taken. It seems to me that the plain course for us is to dismiss this appeal and I would do so. After I had dictated the above judgment I came across a newspaper report of a case decided by the Supreme Court of India on Friday last. The report which is published in the Statesman of 17th October, 1954, shows that two senior members of the Nagpur High Court Bar, Mr. N. Y. Shareef and Dr. W. Kathalay, moved an application for the transfer of a case from one Bench of the High Court to another on the ground that the Bench hearing the case had expressed an opinion adversely to their clients. This was taken by the High Court as a reflection on the impartiality of the judges constituting the Bench and the Counsel signing the application were charged with contempt for scandalising the Court. The High Court convicted them both and the Supreme Court agreed with the High Court. In the course of his judgment Mahajan, C. J., observed :‑-- "The members of the Bar, howsoever big or learned, cannot be allowed to scandalise the Judges or to divert the course of justice by attempting to take a case out from one Bench 5to another Bench of the Court when they find that the Bench is expressing opinion seemingly adverse to their clients. We have firm hope that this kind of conduct will not be repeated by counsel in any High Court in this country, and no more test cases of this kind would have to be fought out." Though the Supreme Court eventually accepted the apology, the procedure suggested by me in the present case that a person who has been convicted of contempt should purge his contempt by apologising to the Court which convicted him is also confirmed by the report of that case. A. S. M. AKRAM, J.--‑I entirely agree. MUHAMMAD SHARIF, J.--‑I agree. SHAHABUDDIN, J.‑I agree that this appeal be dismissed. The substance of the affidavit filed by the appellant clearly constitutes contempt. As for the sentence, it is not unduly severe even if the contention that there was no intention to scandalise the judge is accepted. Further, this Court does not ordinarily interfere with sentences which are legally competent. CORNELIUS, J.--‑The appellant Israr Hussain has been convicted by the Sind Chief Court of contempt of that Court by insult to a judge of that Court, contained in a proceeding filed before him. The sentence is one month's simple imprisonment of which four days had been undergone before an order suspending the sentence was obtained from this Court. The conviction and sentence were awarded a few days less than 3 years ago. The insult alleged is contained in certain expressions used by the appellant in an affidavit filed by him before the judge in question, to support an application, purporting to be made under section 25, C. P. C., to have the case reported to the Provincial Government for transfer to another High Court. The appellant was the plaintiff in the case. I reserve consideration of the expressions used for the present and will deal with certain matters which have weighed greatly with the learned judges of the Sind Chief Court in coming to their conclusion adverse to the appellant. These are :‑ (a) whether the application was not competent, as there were more than one judge in the Sind Chief Court, and the proper course was, if the appellant thought he could not expect justice from ode judge to move the Chief Judge, who has powers under the rules of the Court, to nominate a judge to hear a particular case ; (b),whether the appellant must be presumed to have known this, by reason of being an advocate of 23 years' standing, and therefore to have been actuated, not by any bona fide desire to obtain a transfer, but by an exclusive intention to insult and vilify the judge. The wording of section 25, C. P. C., undoubtedly supports the view taken by the learned judges that this section has no application to the Sind Chief Court which has more Judges than one. Yet, both the learned judges who have recorded K judgments in the case have mentioned a published ruling of the Bombay High Court Jethabhai v. Amarchand (A I R 1924 Bom. 90.) wherein it appears clearly to have been assumed that section 25 C. P. C. might be invoked in relation to a High Court with more than one judge. Even in the Sind Chief Court, the h matter when it came up in the present case was one of first impression. Next, I note that in the course of arguments before us, it was elicited that the appellant was a refugee from the Central Provinces of India, and the greater part of his experience of legal work was obtained in the town of Jubbulpur, which so far as I am aware, has never been the seat of a superior Court. As a newcomer to Karachi and to the practice of the Sind Chief Court, knowledge of the rule empowering the Chief judge to send a case from one judge to another is not easy to presume in his case, particularly as this power is only invoked in very rare cases. Bearing these matters in mind, I find myself unable to agree with the conclusion of Constantine, J., expressed as follows :‑ "I consider ...that section 25 C. P. C. is so clearly inapplicable that this lawyer of 23 years standing knew that his application must fail ; the probable inference is that his object was to scandalise the judge." I cannot exclude the possibility that the application was made in the bona fide belief that it was competent and in ignorance of the relief by way of application to the Chief Judge. I note that Tyabji, C. J., on these points was "willing to assume for the purposes of this matter that he (the appellant) was really as ignorant and mistaken as he professes to be". Counsel appearing for the appellant made an admission at an early stage of the argument which relieved him of the duty of examining the legal question whether any words used by a litigant in a competent proceeding in Court, bona fide instituted, to secure a proper relief, can constitute contempt of that Court, but, on the other hand, such conduct is fully covered by legal privilege. He conceded that by the use of certain expressions in the affidavit already mentioned, contempt of the Sind Chief Court had in fact been committed. Further, his argument proceeded on the basis that where the contempt consisted, as here, of scanda lising a judge, the truth or otherwise of the offending statement was irrelevant. He pleased only that his client had acted bona fide, to protect his interest in a matter which was of extreme importance to him, viz., user and occupation of certain premises where he lived with his family without interference or obstruction by the opposite parties. The language he had employed was mostly factual ; he had avoided, by express words, any allegation that the Judge was interested in the opposite party. If the aspects of aggravation accepted by the Sind Chief Court were discarded, the punishment awarded would seem too severe, and that already undergone would fully meet the case. An unqualified apology to the Judges of the Sind Chief Court was also submitted. The apology comes too late to .be effective, but‑1 cannot, after careful : consideration of the affidavit, refrain from ,observing .that in arriving at the conclusions that there was an intention to cause offence and insult the judge, and that the affidavit contained an allegation that the Judge had acted dishonestly, because before his elevation to the Bench, he had been the legal adviser of certain of the defendants; the learned judges of the Sind Chief Court have construed the affidavit in a manner which its plain words do not wholly justify,. In paragraph 5 it is said that during a heated talk with the appellant, Qamaruddin defendant had threatened to have him thrown out of the house in the street, and declared that the judge had been legal adviser of some of the defendant's, who could "arrange everything". In paragraph 15 where the prayer for relief is made, it is said :‑ "That considering the threats of Mr. Qamar‑ud‑din and the well‑known dictum that justice should not only be done but must also appear to be done, it is submitted that the Hon'ble Court be pleased to report to the Provincial Government for transfer‑ of this matter to some other High Court‑." The threat is thus one of two grounds on which relief was sought. The facts of the other ground are set out in paragraphs 6 to 14, and it is clear that the appellant's reliance was on "what had happened before this Hon'ble Court in this matter". These words are taken from para graph 6, which opens with the words "without in any way reflecting upon' the integrity and honesty of this Hon'ble Court" which, in my opinion, serve to dissociate the subsequent allegations regarding the treatment received by the appellant and his counsel in the case, from the "threats of Mr. Qamar ud‑din". These allegations are :‑‑ (a) on one occasion " for reasons best known to him", the Judge got angry , and " tried to brow‑beat me and my advocate, Mr. Hafiz " ; lie refused to hear his side of the case, or even to examine certain relevant docu ments, he stopped the advocate in his address,, ordered him . to sit down, and said the parties should settle the matter among themselves ; (b) in the interim, the judge inspected the spot, and while agreeing regarding certain matters with the appellant's submissions, did not mention them in his note, with the. consequence that he, might have to be summoned as a witness ; (c) that the defendants were allowed to file two affidavits, in a certain matter, though they had a right to file only ‑ one ; when the appellant filed four affidavits in reply, the judge " burst into anger and spoke at the top of his voice in an obviously discourteous manner thereby humiliating and lowering my advocate, Mr. A Aziz"; and (d) that during the hearing the Judge had on several occasions used expressions which gave the appellant the apprehension that the matter would be decided against him. A transfer application being, competent, whether in one form or in another, it follows that there was a bona fide occasion to give expression to the existence of dissatis faction with the judge from whom transfer was sought. Consequently, there must be liberty to the aggrieved person to set out the facts and reasons constituting the grounds of such dissatisfaction. It goes without saying that such expressions must be in the nature of criticism of the judge, either as to his capacity to deal with the case, by reason of interest or otherwise, or as to his conduct of the case. The argu ment in this case has proceeded on the basis that it is possible by the use of improper expressions, to exceed the legal privi lege to a litigant who proceeds in this way. I have already declared my opinion that an imputation by the appellant himself, against the capacity of the Judge to deal with the case, is not to be spelt out of the words employed. The expression " for reasons best known to him" occurs in the allegations regarding the judge's conduct of the case, and is susceptible of an innocent meaning, such as "for no apparent reason", for no reason arising out of anything that had happened in Court." With respect to the view expressed in the judgments under appeal, I cannot see that there is necessarily an innuendo here, viz., that the conduct was the result of some private interest of the Judge. In a case of this kind, it is necessary that the offending statement should be considered as a whole, and that the words should be interpreted in the plain and popular meaning which they possess for the average reader. For it must be remembered that the principle underlying the punishment of scandalous attacks on judges is that they constitute an obstruction to public justice, as against the public, and not as against the particular judge who is attacked. It is beyond question that the punishment is inflicted for the purpose of protecting the public, and not for the protection, either of the Court or of the individual judges, from repetition of the attack. The important con sideration is that the public, in particular that section which is described sometimes as the " litigant public " should not suffer the mischief which would be caused if the authority of the tribunal were to be undermined or impaired. Viewed in this light, and in the absence of any reliable indication to the contrary, I would prefer to accept the words "for reasons best known to him " in a non‑malicious sense. Another consideration of a general nature must be borne in mind in interpreting the expressions employed. This is that since the imputation is in relation to the Judge as holding the particular office, in order to constitute a libel, of a scandalous nature, the statement must impute h want of some general or 'special quality requisite for that office. It is not easy, and it is fortunately unnecessary, to prepare a comprehensive catalogue of these qualities. It will be sufficient to consider the precise imputations enumerated above in relation to this principle. The relevant imputations are contained in items (a) and (c). The allegations that the judge lost his temper, or spoke loudly, or even that he spoke discourteously, do not appear to me to satisfy this condition. It is true that equanimity, imperturbability, gentleness and urbanity in speech and manner are in themselves admirable qualities, for judges sitting in their Courts as for all mankind, but it cannot be said that these qualities are requisite for the exercise of the judicial function, in the sense that honesty or integrity may be thought to be necessary. The great majority of judges do indeed preserve an atmosphere of calmness and good manners in their Courts, yet there need be no hesitation, since there is no risk of derogation from the general high reputation of judges in this respect, in admitting the existence of exceptions. Moreover, there are numerous occasions when a display of indignation, and the use of stringent language by the Bench may be both justifi able and salutary. There is, however, one imputation which undoubtedly touches the discharge of the judicial function, and that is the statement that the Judge tried to browbeat the appellant and his counsel; refused to hear his side of the case or to see certain documents on the file cut short the advocate's address ; and finally said the parties should settle the matter. As nothing is said of similar treatment to the other side the allegation involves inequality of treatment, coupled with exercise of pressure to make a compromise, and a refusal to proceed with the case judicially. These expressions are clearly calculated to affect the public in the manner indicated above, so that the Courts are liable to be impaired in their utility, by loss of public confidence. This passage clearly scandalises the Court, and attracts its power of attachment for contempt. The matter is not one of mere choice of words, i.e., such as could have been put in other terms so as to be rendered innocuous. It is one of substance. It remains to consider the plea for reduction of the sentence to the period of imprisonment already undergone. The main ground urged in support was that the sentence was a short one awarded nearly three years ago. That is not a consideration which can induce this Court to depart from its ordinary rule of not interfering with sentences which are legally competent, whatever be its effectiveness in the eye of other authorities possessing competence in this respect. I have considered also whether the minimi sation of the offence which follows upon my analysis of the case‑in other words, the elimination of certain features of aggravation which undoubtedly influenced the Sind Chief Court in determining the sentence can be a valid ground for such interference. There is no doubt of the powers of this Court, in the discharge of its duty to do " full justice ", to reduce sentences, and such a power may be thought to be attracted more particularly in a case of summary punishment for a criminal contempt, such as the o present, since the appeal is directly from the convicting Court, which was itself the prosecutor. But I find it impossible to ignore the fact that the sentence imposed is a mere fraction of the maximum that could have been imposed. It is impossible for me to say that even in relation to the minimised offence as found by me, the sentence of one month's simple imprisonment awarded to the appellant is materially disproportionate to his deserts. I would therefore dismiss this appeal. A. H. Appeal dismissed.