P L D 1974 Karachi 62 (PLP)

Subsequently, a bail application was moved in the High Court. The Assistant Advocate‑General who appeared for the State made a statement that he had contacted the Home Secretary and had been informed by him that so far no order for the transfer of the cases to the Tribunal had been passed. On the basis of this statement the applicant was advised to move the Sessions Court for bail. In pursuance of this order the bail application was moved in the Sessions Court and the bail was granted by the Additional Sessions Judge, Karachi. Since a false information was communicated to the S. D. M., Karachi and he was prevented from passing any order on merits the present applica tion for contempt was made. This application was admitted and notices were issued to the respondents. The respondent No. 1 has filed his own affidavit refuting the allegation while respondent No. 2 has made an application a preliminary plea that since the alleged contempt is in respect of a subordinate Court and it amounts to an offence punishable under section 182, P. P. C., the jurisdiction of the High Court to punish such contempt is ousted by virtue of the provisions of subsection (3) to section 2 of the Contempt of Courts Act. This plea has been opposed on the ground that the subsection excludes the jurisdiction of the High Court only in cases where the acts alleged to constitute con tempt of a subordinate Court are punishable as contempt under specific provisions of the Penal Code and not where those acts merely amount to offences of other description for which punishment has been provided in the Code and since the offences enumerated in Chapter X of the Code do not relate to Courts but to public servants, the jurisdiction of the High Court is not excluded, even though the offence is covered by section 182, P. P. C. Although in the past there was conflict of opinion but now it is settle that to exclude the jurisdiction of the High Court, the contempt must be punishable as contempt under the Penal Code and not if the act complained of is otherwise an offence under the Code. For the sake of brevity I may quote here the view expressed by the Federal Court of Pakistan in the case of Abdul Rashid v. Falak Sher (1). It had been laid down that the prohibition contained in subsection (3) of section 2, Contempt of Courts Act is limited to cases punishable under the Penal Code as contempt of Court but not other wise and the expression "offence punishable under the Penal Code" does not imply offence of every description punishable under the Code. Thus the true interpretation of subsection (3) is that where there is already a provision in the Penal Code for punishing a contempt of Court as such, the Contempt of Courts Act itself shall have no application otherwise the jurisdiction of the High Court to punish the contempt of subordinate Courts is not, excluded. The term "Contempt" has not been defined by any Statute. Attempts have been made by various jurists to define it but such definitions consist only of various manifestations of the offence of contempt. "Contempt", in the legal acceptation of the terms, signifies disrespect to that which is entitled to legal regard. So the object of proceedings under the Contempt of Courts Act is to vindicate the dignity and honour of the Courts. Contempt of Court is either (P L D 1955 F C 98) Criminal Contempt consisting of words or acts obstructing or intending to obstruct the administration of justice or (2) contempt in procedure, consisting of disobedience of the judgments, orders or other process of the Court and involving private injury. This has been explained by Lord Russel of Killowen, L. C. J., in the case of Queen v. Gray ((1900) 2 Q B 36). The relevant observation reads as under "Any act done or writing published or calculated to bring a Court or a Judge of the Court in contempt or to lower his authority, is a contempt of Court. That is one class of contempt. Further any act done or writing published culculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwick L. C. characterized as scandalising a Court or a Judge." Thus it is not merely those acts which are calculated to affect the dignity of Court but also acts which are calculated to affect the authority of the Court L or to hamper the administration of justice. Turning to the present case, the act complained of, prima facie, tended to affect the due administration of justice, inasmuch as, the Magistrate was prevented from disposing of the bail application on merits. Taking up the question whether the aforesaid act is punishable as contempt of Court under section 182, P. P. C. which has been sought in aid to press the plea. This section reads as under: "Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant‑ (a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or (b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." This section punishes the communication of false information to a public servant with the intention or knowledge or causing the public servant to do or omit to do anything etc. There are various categories of public servants as defined by section 21 of the Penal Code. A Judge or Magistrate is included in those categories. Considering the contentions raised before me in the light of the settled principles it is clear to me that there is no force in the plea raised by the respondent. Section 182 refers to public servants generally, invested with lawful authority, irrespective of the fact whether he is acting as a Magistrate or not, or whether he is acting under the orders of a Court. This section punishes the offender independent of an act amounting to contempt of Court, if the act is an offence under the section. So the criterion is when an act is punishable under the Penal Code not as contempt of Court but as some other offence e.g. defamation, the jurisdiction of the High Court is not barred. The instance of the act punishable as contempt of Court under the Penal Code is the offence under section 288 which cannot form subject of contempt proceed ings by the High Court under the Contempt Act. This question was considered by the learned Chief Justice with reference to offences covered by sections 175, 179, Penal Code in the case of Janendra Prasad Bose and another v. Gopal Persad Sen (A I R 1933 Pat. 204) as under: "Now sections 175 to 179, I. P. C., define as offences various acts and those acts are offences not against the Court itself because they are applicable whether or not in many cases a Court is concerned at all. The offence of striking or resisting the public servant is an offence whether that public servant is the public servant of a Court or what ever his capacity provided he be a public servant. The only section of the Penal Code which deals with contempt s committed against a judicial officer, that is to say to Court, is section

228. The offence in this case is not punishable under section

228. Therefore this Court has power to take cognizance of it." In the same case the other learned Judge observed that section 186, Penal Code would take no notice of the offence of contempt of Court so far the public servant was carrying on an order. It was also observed that proviso to section 2 obviously accepted those cases to contempt which were punish able under the Penal Code as contempt and not if they were punishable independent of that contempt. In that case obstruction was caused to the Naib‑Nazir who was deputed to execute a warrant issued by a subordinate Judge. It was held that the jurisdiction of the Court was not excluded. A reference, however, was made by the respondent to the following observation made in the case of Dharindhar Singha Roy and others v. Satish Chandra Giri and others (A I R 1923 Cal. 705) at page 707 which reads as under: "Dr. Sen Gupta maintains that this construction of section 2 (3) is too wide and that it is only contempts punishable as such under Chapter 1(Y of the Code (e.g., an offence punishable under section 173,

1. P. C.), that are excluded from the purview of the Act. We think there is considerable force in Dr. Sen Gupta's argument but it is not necessary to decide the point as many of the acts complained of are not covered by any section of the Code." It is clear that the above observation is merely obiter and for the reasons already stated I am unable to share this view. A few more authorities were quoted but these instead support the principle which I have followed. In the result, I reject the plea and hold that the jurisdiction of the Court is not hit by subsection (3) to section 2 of the Contempt of Courts Act to deal with the act complained of. In this view of the matter I direct the respondents to file their statements on 7‑9‑1973. Application accepted.