P L D 1955 Lahore 16 (PLP)

S. A. RAHMAN, C. J.‑This order will dispose of Criminal Revision No. 306 of 1954 which has arisen in the following circumstances. A case under sections 148, 323 and 324 P.P.C. was pending against Lai Din and four others in the Court of Captain Ahmad Saeed, Magistrate 1st Class, Sialkot. After the conclusion of the evidence in the case. it was fixed for arguments to be heard on the 8th of January, 1954. On the 7th of January, 1954, Lai Din accused presented an application for transfer of the case from the Trial Court to some other Court, before the Additional District Magistrate, Sialkot. The Additional District Magistrate happened to be away and in his absence the application was entertained by a section 30 Magistrate, it seems, without authority. The transfer applica tion was set down for hearing on the 15th of January, 1954, by an order of the section 30 Magistrate. On the 8th of January, 1954, learned counsel for the accused made a request to the Trial Court to grant an adjournment as he was not ready for arguments. The learned Magistrate acceded to the request and fixed the case for arguments on the 9th of January, 1954. On that date, Lai Din presented an application in writing to the Trial Court praying that the case be adjourned as his transfer application was pending with the Additional District Magistrate, and he set out various reasons therein why he had lost all confidence in the capacity of the Court to deal justly with him. In the end he added that he had also to move the High Court for transfer of the case. The learned Magistrate noticed that the petition was not signed by the counsel for the accused who was, however, present in Court. The petition was, therefore, returned to the counsel so that it could be properly submitted. The counsel signed it and represented it. The contents of the application were read out by the Magistrate to Lai Din in the presence of his counsel. It was made clear by the learned Magistrate that the allegations made in the petition were insulting to the Court and fell within the definition of `contempt' for which pro ceedings under section 480 Cr. P. C. would be started against Lai Din. At the same time, a direction was given that a new and properly worded petition be put in through counsel so that the case could be adjourned to enable Lai Din to move the High Court for transfer of the case. On the same day, the learned Magistrate took proceedings for contempt against Lai Din and convicted him under section 228 P. P. C. sentencing him to pay a fine of Rs. 150 or to suffer one month's simple imprisonment in default. He appealed to the learned Sessions Judge, Sialkot, who maintained the conviction but reduced the sentence to a fine of Rs. 50 only. A revision petition was then presented in this Court on behalf of Lai Din which came up for hearing before the Hon'ble the Chief Justice. He considered the point involved in the petition to be one of great importance and the case was, therefore, referred for hearing to a Division Bench. The question that falls for determination is whether the inclusion of the words to which the learned Magistrate took exception, in the petition for adjournment, could form the basis of a conviction under section 228 P. P. C. Section 228 is in the following terms :‑ " Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both." Clearly the learned Magistrate was sitting in a judicial proceeding when the offending petition was presented to him. Only the first part of the section is pertinent to the present case and the question is whether Lal Din intentionally offered any insult to the Court. It is necessary at this stage to refer to the contents of the petition which is marked 'A'. It starts by saying that in the case in question, the petitioner Lal Din had applied to the Trial Court for adjournment an allegation which is not substantiated by any evidence in order that he may move a superior Court for transfer of the case but that he had not been granted the necessary time. On the contrary he had closed the case without recording defence evidence and had fixed it for arguments to be heard on the 9th of January, 1954. This, according to the petitioner, was despite the fact that he (the petitioner) had absolutely no hope of justice from the Court and it was the legal duty of the Court to grant him time to enable him to move for the transfer of the case. He added that he had already applied for transfer of the case to the Additional District Magistrate on the 7th of January, 1954, and that that application was put down for hearing on the 15th of January, 1954. He, therefore, prayed that he may be granted an adjournment so that the petitioner could get a just decision in the case. The last line mentioned that he had also to present a petition to the High Court for transfer of the case. It is clear that this petition attacks the integrity of the trial Court and impugns its sense of justice. Prima facie, no greater insult could be offered to a Court than to accuse it of acting unjustly ex facie curiae. The learned Magistrate obviously felt insulted by these words. It is, however, con tended on behalf of the petitioner Lal Din that he had no intention to offer an insult to the Court and that, in any case, the offending words could not form the subject of con tempt proceedings in view of the provisions of section 526 of the Code of Criminal Procedure. The material portion of that section reads as under :‑ "Whenever it is made to appear to the High Court :‑ (a) that a fair and impartial inquiry or trial cannot be held in any Criminal Court subordinate thereto, . . . . it may order‑ (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction." It was argued that since this statutory provision allows a case to be made out in the High Court that a fair and impartial inquiry or trial could not be held in any subordinate Criminal Court, therefore, a similar allegation made in an application for adjournment to the Trial Court would be immune from any penalty. Mr. Ghias Muhammad, on behalf of the petitioner has drawn our attention to some authorities in support of his contention. The first case to which he referred is Crown v. Sirdar Buksh (34 P R 1869 (Cr.).). That case is clearly distinguishable from the present one, inasmuch as the offending words were used in a transfer application presented to a superior Court. The allegation made was that justice was likely to miscarry in the Trial Court. It was held that no contempt had been committed. The next case cited by the learned counsel for Lal Din is Murli Dhar v. Emperor (A I R 1916 All. 330.). It was held by a single judge of the Allahabad High Court in that case that the mere fact that a petition for adjournment of a case, on the ground that the accused intended to apply for transfer of the case to another Court, is not happily worded, does not raise a presumption that the intention of the petitioner was to offer an insult to the presiding officer. It is not clear what the actual words were to which exception was taken. Reliance was placed by the learned Judge on a previous decision of the Allahabad High Court reported as Queen Empress v. Abdullah Khan ((1898) A W N 145.). Subsequently, however, in‑ another case arising in the same High Court and reported as Narotam Dad Das v. Emperor (A I R 1942 All. 97.), Yorke J. criticised the decision in Queen Empress v. Abdullah Khan, and characterised the decision in Murli Dhar v. Emperor as unhelpful. It was pointed out that in cases where the words used and the absence of necessity for including insulting suggestions in an application for adjournment, clearly suggest that there was an intention to insult the Court, such fact should not be passed over in silence. The learned Judge observed that the judgment in Queen Empress v. Abdullah Khan ignored the material aspect that the allegations made were of a gratuitous nature. It may be pertinent to refer at this stage to another Full Bench decision of the Allahabad High Court In the matter of a vakil (A I R 1924 All. 253.) In that case the facts were that a pleader applied on behalf of the accused to the Trial Court that the case be committed to the Sessions Court for trial. After hearing the Crown and the accused's counsel, the District Magistrate who was trying the case, rejected the petition. The counsel then applied for adjournment with the ostensi ble object of moving the High Court for transfer of the case and he mentioned in the petition that reasonable suspi cion existed against the impartiality of the trying Magistrate. There was in fact no basis for such a suspicion and after securing the adjournment, no steps were taken for the transfer of the case. Disciplinary action was taken against the pleader and he was suspended from practice for six months. It is true that this was not in contempt proceedings but the words used in the adjournment petition were held to be actionable, in all probability because they constituted contempt of Court. Again In re : An Advocate of Benares (AIR1932Al1.492) a Special Bench of three judges ruled that an advocate, who was party to a litigation pending in a subordinate Court and who had made deliberately false allegations involving imputations upon the fairness and impartiality of judicial officers in proceedings connected with an execution case, could be punished for contempt as a suiter though not on the disciplinary side under the Bar Councils Act. Reliance was also placed by Mr. Ghias Muhammad on the decision in Salag Ram v. Emperor (AIR1937All.171). In that case a counsel had made allegations in an application for adjournment to the Trial Court in the following words :‑ " Probably as the rumour goes, with a view to avoid this big and stiff case, for reasons best known to him, the applicants carne to know that he (Mr. P. N. Agha) was reported sick of high blood pressure, four days before the case actually started." This was considered to be a wholly unmerited aspersion which was uncalled for in the circumstances of the case. The advocate was convicted under section 228 I. P. C., but as his appeal was pending before the Sessions Judge, Iqbal Ahmad J. expressed no opinion on the merits of the case. The learned Judge, however, just made a passing remark to the effect that the Trial Court would have shown judicial balance by not taking notice of the offending passage in the petition for adjournment. This observation cannot be accep ted as a considered opinion on the legal aspect of the question. The view taken in Murli Dhar v. Emperor also came in for comment by the Bombay High Court in Emperor v. Venkatrao Rajerao Mudvedar (I L R (46) 1 L R 1922 Bom. 973). The facts were that an accused person while making a statement under section 342 of the Code of Criminal Procedure before the Sessions judge who was trying him, called him "a prejudiced judge" and refused to withdraw the remarks when given an oppor tunity to do so. Macleod C. J. and Shah J. differed as to whether this constituted contempt of Court or not, the former having answered the question in the affirmative and the latter in the negative. In view of this difference of opinion, the case was placed before Pratt J. who agreed with the learned Chief Justice and upheld the conviction under section 228 I. P. C. It was held that the words used and the conduct of the accused showed his intention to insult the judge. The accused was himself a pleader of some expe rience and standing. Pratt J. pointed out that intention was clearly distinguishable from motive. The motive may be to press a defence and yet it may be coupled with an intention to insult the Court. However excellent the motive may be, if the words constitute an offence, the motive would not make them lawful. In the learned Judge's opinion this fallacy, underlay the judgment of the Allahabad High Court in Emp eror v. Murli Dhar. Mr. Ghias Muhammad also referred to three rulings of this Court reported as Dalip Singh v. Emperor (A I R 1921 Lah. 102), Parshotam. Lai v. The Crown (A I R 1925 Lah. 210.), and Hakumat Rai v. Emperor (A I R 1943 Lah. 14). These rulings do not afford much assistance to the contention raised by the learned counsel. In the first case, Sir Shadi Lal, C. J., laid down that the question for determination in such cases is whether an insult was offered and intended and that the fact whether the Court felt insulted should be held to be immaterial. Actually on the facts of that case it was found that no contempt had been committed. The learned trial Magistrate's order did not even set out with sufficient precision the offending words which the accused was said to have uttered. Moreover, it was held that it was doubtful if the Naib Tahsildar, who had taken proceedings in con tempt, was doing judicial business at the relevant time or not. In the second case also the decision proceeded on the special facts established. The Sessions Judge had upheld the con viction under section 228 on the ground that the accused had used the disrespectful form of address "tum" to a Sub‑Judge in Court. It was held that it had not been proved beyond doubt that he had used this expression, and considering the circumstances of the case, it was found that no insult was offered or intended. Similarly the decision in Hakumat Rai's case proceeded on its own peculiar facts. No rule of guidance can be spelt out of these decisions, which could advance the petitioner's case before us. There is ample authority available for the proposition that to impugn the impartiality or justice of the Court to its face, constitutes gross contempt and amounts to deliberate insult to the Court. Reference in this connection may be made to Sukh Dev Raj v. Emperor (A I R 1932 Lah. 485 (F B)) and In re : Sham Lai Advocate (A I R 1932 Lah. 502 (F B)). The authorities supporting the view that allegations made in an application for adjournment attacking the impar tiality of the Court, may amount to contempt have been noticed‑above two cases from the Allahabad High Court and one from Bombay. Some of the authorities have even gone to the a tent of layiny down that a party or advocate may be guilty of contempt, by making unfounded allegations in an application for transfer submitted to the superior Court. In the matter of S. Mukhtar (A I R 1929 Pat. 151 (F B)) and Ganwar v. Emperor (A I R 1944 Sind. 155) fall into this category. There is also the decision of this Court in S. M. Hag's case (P L D 1953 Lah. 188) in which an advocate of this Court was held guilty of contempt of this Court, on the basis of certain allegations made by him in pleadings before the Federal Court. An appeal was taken to the Federal Court in that case and the judgment of their Lordships of the Federal Court in published as P L D 1953 F C 247. Certain portions of the pleadings taken by Mr. S. M. Haq in the Federal Court were held to be objectionable even by the Federal Court though on the point of jurisdiction Their Lordships held that this Court should not have taken action. The case is not on all fours with the present one but some guidance may be obtained from it by way of analogy. In view of the above discussion we are unable to accept the contention of Mr. Ghias Muhammad than because of the provisions of section 526 of the Code 'or Criminal Procedure, the inclusion of the offending words in the adjournment petition submitted to the Trial Court could not in law constitute contempt. It would in our opinion depend on the circumstances of each case whether an insult was intentionally offered to the Court or not and the fact that if is quite unnecessary in law to give reasons for making r prayer for adjournment to move for transfer of the case, is a factor to which due weight must be attached in that con nection. The further question remains to be decided whether in fact the petitioner intended to insult the Court or not, the intention being an essential ingredient of the offence men tioned in section 228 P. P. C. We have no doubt that in the circumstances of the case, this intention must be attributed to the petitioner. There was absolutely no necessity for him to make the allegations that he did in the application for adjourn ment. The learned Magistrate seeing that his counsel had not signed the petition, called upon him to assist his client by signing the petition. The object really was that the counsel might advise his client not to present the application in that form, as it contained words to which exception was taken. The counsel, it seems, did not do his duty properly and the application was persisted in. In the proceedings that were taken by the learned Magistrate for contempt, the petitioner, when called upon to show cause why he should not be convicted, merely said that he was an accused person and he left it to the Court to decide what action it should take. Not a word of regret was expressed and it was not even sought to be made out that no insult was intended. On these facts we have no hesitation in holding that there was an inten tional insult offered to the Trial Court in this case. We find no substance in the plea taken by Mr. Ghias Muhammad on behalf of his client that he was not given any opportunity to defend himself in the contempt pro ceedings. This was a sammary proceeding and the petitioner neither contested that the words used by him amounted to contempt nor did he indicate that he wanted to lead any defence evidence to rebut the presumption raised by the Trial Court. It is no doubt true that the power to punish for contempt must be sparingly used. In the words of Their Lordships of the Privy Council as incorporated in their judgment in Parashuram Detaram Shamdasani v. Emperor (A I R 1955 (P C) 134) the usefulness of the power to punish for contempt depends on the wisdom and restraint with which it is exercised. Judicial officers need not be over‑sensitive, specially when dealing with uninformed rustics. Presiding officers of Courts however owe a duty to the State and to the office which they occupy, that its dignity should be safeguarded from all wild attacks. This is not because their persons are involved but because it shakes public confidence in the integrity and justice of Courts, if their impartiality is brought into disrepute, by allegations or insinuations made without foundation. The fountain of justice must be kept pure and the confidence of the public in the capacity of the Courts to do even‑handed justice must be sedulously fostered. Indulgence to parties and persons appearing in Courts must stop short of licence to use unbecom ing or abusive language. We see no ground for interfering with the conviction or the sentence of the petitioner arid dismiss the petition. A. H. Petition dismissed.