P (PLP)

ABDUL AZIZ, C. J.‑

An application for revision against' the order of District Magistrate, Bahawalpur dated 6th of November 1943 whereby the complaint of Abdur Rahman under sections 166 and 167 Indian Penal Code against Mr. Fiaz Mahmood Khan. Tahsildar and Magistrate 2pd Class was dismissed was presented to the Judicial Committee. It was returned by the judicial committee and rightly, to be presented, to the High Court. In Cl. 1 of petition it was stated by the petitioner as follows :‑- The accused respondent is an influential official, and his real brother Mr. Justice Mahmood Khan is the petitioner's well known antagonist on the basis of corruption and through him the petitioner has already failed in several of his personal cases in the High Court, where for the petitioner has ,bad to, file revision petitions in this Hon'ble Court. Hence he having no. hope at all to get justice in the High Court in this case also " . As this statement amounted to contempt of Court, hence a rule. was issued to Abdur Rahman to show cause why he should not be committed for contempt of Court and sent to prison or otherwise dealt with. In response to this rule he has put in a lengthy statement and has addressed arguments to this Court in support of the points raised by him in his petition. The points raised by him may be summarised as below :‑

1. That the notice served on the respondent is not clear consequently no action can be taken against him.

2. That the Court had no jurisdiction to take summary pro ceedings against him and the Court should have proceeded under section 228 Indian penal Code read with section 194 Criminal Procedure Code.

3. The respondent was competent to make the said statement in. a petition to,'" the Judicial Committee against Mr. Justice Mahmood Khan as he had confirmed enmity with him and against the other judge', as he had failed in the High Court in his cases on account of Mr. Justice Mahmood Khan. Lastly if his act falls within the definition of contempt of Court he tenders an apology and the rule issued against him be discharged. I will take up these points sariatum. As regards the notice issued to the respondent the words are very clear and it conveyed to the respondent the offence which he has committed in his statement and which he was called upon to meet. He has referred to 1935 Cal.

419. The principle laid down. therein that the notice issued to a respondent for contempt of Court should be clear admits of no doubt, whether a notice issued to a respondent is clear or not is a question of fact in each case. In this case the wordings of the notice as stated above clearly show that the respondent had committed the contempt of Court by maligning a judge of the High Court on one ground and the others on the other. The respondent consequently argued his case referring to both the points and he cannot therefore say that the notice was in any manner ambiguous in terms and he could that understand it. If that had been the case then he would not have pleaded justification for the insinuations which be had made against a judge on one ground and against the others on the other. This contention of the respondent therefore was not of any value. The next point raised by the respondent was that the Court ought to have proceeded under section 228 Indian Penal Code and 194 of the Criminal Procedure Code. Similar question was raised by Sir Tej Bahadur Sapru in 1935 Cal. 419 where the Chief Justice and the Judges of the High Court where scandalized in certain issues of Amrita Bazar Patrika and the proceedings for contempt of Court were taken against the Editor and others. On page 4 2 of the report, it was observed that Sir Tej Bahadur argued that having regard to the nature of the article the Court bad no jurisdiction, to take its summary procedure; that if it did amount to ‑contempt the proper procedure as by way of information under section 194 Criminal Procedure Code that other legal reme dies were open to this Court to‑ protect its honour. While discussing this question the Hon'ble Chief Justice, reproduced section 194 Criminal Procedure Code and proceeded, " it will be noticed that for any proceedings under section 194 Criminal Procedure Code to be taken the sanction of Governor‑General or the Local Government is necessary. In previous cases of contempt, of Court it has been the practice of the Court to issue a rule upon its motion. See the case of 10 Cal. 109 where a libel was published concerning one of the judges regarding its conduct in a case which had concluded and this Court acted by way of a rule and summary procedure. The respondent contended that he ought to be proceeded against under the provisions of Penal Code and the Criminal Procedure Code but this Court took the view that summary procedure was the proper procedure and on a consideration of the matter in the Privy Council it was held that this procedure was correct. The same point was also taken in 26 C: L. J. 459 in the matter of Amrita Bazar Patrika and overruled. See Per Asutosh Mukerjee, J. at pages 541 and 542 ; that the summary jurisdiction in respect of a contempt of this Court which is a Court of Record does exist and has been exercised beyond all questions. The same view was adopted by the F. B. of the Lahore High Court, in 1926 Lahore

1. The High Courts in India exercise the inherent jurisdiction to punish their contempt as Courts of Record ; as they have been so created by the Letters Patent. A Court of Record according to Blackstone is that where the acts and. judicial proceedings are enrolled in parchment for a perpetual memorial and testimony ; which rolls are called the Records of Courts and are of such high anal super‑eminent authority, that their truth is not to be called in question. All Courts of Record are the King's Courts in right of his Crown and Royal dignity and therefore, no other Court had authority to fine or imprison ; so that the very erection of a new jurisdiction with the power of fine or imprison ment makes it instantly a Court of Record ". It is on this ground that all the superior Courts in England are Courts of Record and possess the inherent powers from the earliest times to commit a person‑for contempt by a summary process whether the contempt is committed in or out of the Court. This view was ex. pressed by Wilmot, C. J. in King's v. Almon being an authoritative pronouncement on the subject. An extract from the opinion of Wilmot appears on page 5 of the Law of Contempt of Court by Tek Chand and may well be produced to know how the Courts in England were invested with these inherent powers under Common Law. It reads :‑ " The power which the Courts in Westminister Hall have of vindicating their own authority is coeval with their first foundation and institution ; it is a necessary incident to every Court of justice. whether of record or not, to fine and imprison for a contempt to the Court; acted in the face of it. And the issuing of attachments by the Supreme Courts of Justice in Westminister Hall, for contempts out of Court, stands upon the same immemorial usage as supports the whole fabric of the Common Law, it is as much the lex terrea, And within the exception of Magna Charta as the issuing of any other legal process whatsoever" This opinion of Wilmot, C. J based on judgment written in the year 1764 was not published until 1802 in the notes of Mr. Justice Wilmot, edited by his son. The principal objection of the defendant was, that the proceedings should have been by indictment and that the summary procedure by attachment of the person of the defendant, was not applicable. It was also urged that it would be' unsafe if such a summary power were given to the Court in matters in which it exercised the function of party, witness, judge, and jury. These objections were overruled and it was laid down that The arraignment of the justice of the Judges 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 fundamentaly shaken, it is the most fatal and most dangerous obstruction of justice and in my opinion calls oat, for a more rapid and immediate redress than any other obsruction whatsoever, not for the salve of the judges, as private individuals, but because they are the channels by which the King's justice is conveyed to the people." Now from this discussion it would be apparent that the summary powers to deal with the contempt of the superior Court exist in England from time immemorial and the High Courts in India exercise similar powers as Courts of Record under their Letters Patent. This is a fact that in India such powers can be exercised only by a Court of Record. The question then arises whether the High Court of Bahawalpur State is a Court of Record. The Constitution Act of this High Court does not say that it is. If the matter had ended there then the objection of the respondent would have prevailed but the Contempt of Courts Act of 1936 and 1937 has invested the High Courts and even the Chief Court as Superior Courts to try the contempt of their Courts in a summary manner The conclusion, there fore, is that the objection of the respondent teat the proceedings under section 228 Indian Penal Code and section 194 of the Criminal Procedure Code should be instituted against him and he cannot be dealt with under the summary‑ powers of the High Court is not tenable. See also in this connection 10 Cal. 109 (P. C.) The next point urged by the respondent was that he was competent to make the allegations contained in his petition for revision as that petition amounted to a, petition for transfer of the case. In the first instance it is not the petition for transfer of the case from the High Court. It is a direct petition to the Judicial Committee. There is no provision of law either is the Criminal Procedure Code or in the Civil Procedure Code according to which a petition for the transfer, of a case ‑from the Court of one judge to the other judge of the High Court can be made. 33 I. C. 643 quoted by the respondent in his support is not applicable. 1935 and 896 another ruling depended upon by him refers to the case of transfer from one subordinate Court to the other. On the other hand 1923 Criminal 'cases 623 lays down the proposition which goes against the respondent. It was held therein that a counsel saying to a Full Bench that his client does not with the matter to be argued before the Bench as constituted is guilty of contempt. See also in this connection 1932 L. 502 where a counsel at the hearing of a criminal revision in the High Court stated that he had been instructed to say, that his client did not wish him to argue the case before the Bench as at present constituted. This statement was held to be a deliberate and intentional insult to the Court and the Counsel in making the statement was guilty of contempt. Counsel's privilege does not extend to stating his instructions when these instructions involve an attack on the dignity of the Court ; and no litigant is entitled to have any say in the selection of judges who are to constitute any Bench. The statement which is now the subject‑matter of controversy can be split up in two parts. Firstly, that in which he refers to Mr. Justice Mahmood Khan and secondly, in which he refers to the High Court in general. As regards the first it was contended by the respondent that the statement against Mr. Justice Mahmood Khan was correct but it is observed on page 127 of Law of Contempt of Court by Tek Chand that establishing truth of the allegations was no defence to a charge of contempt of Court. Similar view was held in Coats v. Chedwick (1894) 1 C. H, 347 and it was observed a libellous statement which amounts to, interference with the Courts of justice amounts to contempt even' though the defendant is prepared to justify the libel. The respondent therefore was guilty of contempt of Court even if be considered that the libel against Mr. Justice Mahmood Khan could be established by him. As regards the other judges his statement is " that through ‑him (Mr. Justice Mahmood Khan) the petitioner has already failed in several of his personal cases in the High Court where for the petitioner has had to file a revision petiti6n in this Hon'ble Court ; hence he having no hope at all to get justice in the High Court in this case also ". Now these words clearly mean that the other cases decided by the High Court against him were decided either under the influence of or with intent to please and find favour with 1dr. Justice Mahmood Khan and that in future the respondent can get no justice from the High Court on account of the fact that Mr. Justice Mahmood Khan is a Judge of the High Court. To impute such motives to a Judge is a contempt of the highest magnitude and the contemner must be dealt with properly. In 6 Lah. 528 it was held " to accuse a judge of the High Court of having decided a case not in accordance with justice but in order to please and curry favour with others and to say that the Court of justice is closed against any person is a contempt of Court " Here according to the respondent the door of justice is closed against him for ever so long as Mr. Justice Mahmood Khan holds office as a judge of this Court Similar allegations were made in 1935 Cal. 419 against the Chief justice and the judges of the High Court. In order to understand the significance of those allegations and to decide the question before this Court it would be advisable to revert to those allegations in detail. . The learned Chief justice proceeds : "I will now turn to the words complained of and consider what is their ordinary meaning. They consist of two allegations : (1) that the Chief Justice and judges take a peculiar delight in hobnobbing with the Executive ; and (2) with the result that the judiciary is robbed of its independence which at one time attracted the admiration of the whole country. The plain reference is that the Chief Justice and judges by their conduct have put themselves in a position in which they cannot exercise their judicial functions with independent minds that they lean towards the Executive in matters coming before them in which the Executive may be interested and that they are no longer capable of doing even‑handed and impartial justice according to law. In this Court there are at all times cases being tried or waiting to be tried in which the Crown through some branch of the Executive is interested either as a Prosecutor or a litigant, and the inference is that in these cases the Chief Justice and the Judges cannot do even‑handed and impartial justice. This Court has, and I trust always will have, the deserved reputation of, doing even‑handed and impartial justice. Once the impression is created in the minds of the public that the Chief justice and the judges of this Court are not independent, and that they lean towards the Executive and that consequently in matters in which the Crown is concerned either as Prosecutor or litigant, the case of the prisoner or accused or the opposite party cannot or will not be heard and determined solely according to the evidence and 'the law, the confidence of the whole community in the administration of justice in this Province 6f Bengal will be undermined. No greater public mischief than that can be possible. Such words are in my view clearly within the definition of contempt by scandalising as enunciated by Lord Russel in. (1900) 2 Q. B. 36 (4) and are clearly within the definition given by Wilmot, C. J." I have to compare‑now the position that has been created by the respondent by his statement in his petition for revision with the position that was created by the allegations against the Chief Justice and the judges of tile High Court of Calcutta. If those Hon'ble Judges were accused of siding with, the Executive and thus deciding the case against law and facts under the' influence of the Executive; the judges of this Court are accused by the respondent of having decided cases against him either under the influence of Mr. Justice Mahmood Khan or with intent to secure his pleasure and favour and never to decide a case in his favour even if it could be so decided according to law and facts so long as Mr. Justice Mahmood Khan remains on the Bench. It is not a cri ticism it is personal scurrilous abuse of a judge as a judge, in the words of Lord Russel. The same view was adopted in 1926 Lah. 1 and the observations which I have reproduced above were reproduc ed in that judgment and it was further held that the principle which is the root of and underlies the cases in which persons have been punished for attacks and interferences with the due execution of their orders is not the purpose of protecting either 'the Court as a whole or the individual judges of the Court from a re petition, of them, but of protecting the public, and especially those who, either voluntarily or by compulsion, are subject to its jurisdiction from the mischief they will incur if the. authority of the Tribunal be undermined or impaired. Rex v. Davies (1901) I, K: B.

32. The same view was adopted in Crown v. Aminud‑Din Sahrai and others a F. B. ruling quoted in Pakistan Cases, page 362 [=P L D 1949 Lah. 410 (415)]. It was observed that " Judges loath to take proceedings for their own contempt and do not mind any honest criticisms of their judgments. They do not claim to bet infallible and realise more than anyone else that like other human beings they are liable to err. If, therefore, those who are competent to express an opinion on decisions assert that a judge has gone wrong on a particular question and the opinion is pressed on an appropriate occasion, no judge would ever ob ject to the criticism even though he may consider it to be erroneous or unjustified. But if motives are attributed, to a judge and it is alleged that he gave a wrong decision intending to favour a particular party or to oblige or please or in fear of a particular person or authority, the position is different, because the suggestion then is that the very fountain of justice is tainted and consequently that the judgments that stream out of that fountain are impure and contaminated. In such cases it is the bounden duty of‑the Court to step in to remove a potential menace to the confidence of the public in their Judges. To punish the contemner brevi manu is the only course open in the, circum stances and though such proceedings appear to invite the objection that the judge sits in judgment in has own cause, that is not the correct position because, such proceedings are taken not to protect the Court as a whole or the individual Judges of the Court from the repetition of the attack but to protect the public and especi ally those, who either voluntarily or by compulsion, are subject to its jurisdiction, from the mischief they would incur' if the authority of the tribunal were under mind or impaired. Prevention of apprehension to and restoration of a damaged public confidence in the administration of justice, is thus the true reason for the power to commit summarily, for contempt in such, cases." Now from the consideration of‑ cage law applicable to the present case there remains no doubt to hold that the words used by the respondent were used with intent to scandalize the Judges who had decided the cases against him and to attack impair and undermine the independence of the judges while dealing not only his cases but cases generally in the Court. These words, therefore amount to contempt of Court and the, respondent is guilty of that Offence. The 'last question is the effect of the apology which the petitioner is alleged, to have tendered. In 1926 L. 1 it was held that the mere fact that an apology has been tendered by the accused is not a sufficient reason to secure for him impunity from punishment in a serious and grave contempt case, Res v. Almon (1765) Wilmot's opinion

243. In that case Habib had tendered apology but .it was held that it: was not a suffi cient reason to secure for Habib impunity from punishment. In Surendra North Banerj's case a very full apology had been tendered neverthless he was sentenced to imprisonment. See 10 Cal.

109. In Ray v. Greay again a very full apology was made at the first possible opportunity. Greay was, however, sentenced to a, fine of 106 and 25 as costs: (1900) 2 Q B

36. The effect of apology in cases like thin with ado considered by the Chief Justice in 1935 Cal.

419. The observations appear on page

430. They proceed like this. "It was held that the respondent was guilty of contempt, but at be .bad apologised he was ordered, merely to pay the whole costs of the proceedings... . Lord Heward in his judgment said:‑-- "Mr. Jowitt (counsel for the respondent) in his extremely able argument has used from time to time phrases beginning with conditional clause: if on the fair meaning of the words, they mean so and so; then he expressed apology. In the Court's opinion there was no room for, these conditional clauses. The words meant that in the opinion of the writer it was impossible for a person holding certain views to get a fait: hearing before that judge. If the expres sions bad ended with these conditions, it would have been necessary to take a very serious view of the matter, but before the end that which had been conditional and reserved became unconditional and unreserved." These observations to my mind help me to a considerable extent in deciding the effect of the apology which he has been tendered by the respondent. In the firs: instance it may be kept in view that he has deliberately scandalized a judge or judges who decided the cases against him and has for future also laid accusations against the judges that they would not decide cases independently in the presence of Mr. Justice Mahmood Khan. Secondly, in his entire written reply and during the course of his argument he has tried to justify his action and lastly the apology tendered by him is not an unconditional apology. It is a rather a reserved apology. Cases have been quoted above by me in which unconditional apology in serious cases of contempt has not succeeded to secure immunity for the condemner.' In this case as already stated the apology is not unconditional. The contempt is of a very serious nature And consequently in such a case a conditional and reserved apology cannot be helpful to the respondent His is a case in which punishment must be awarded. 1, therefore, holding him guilty of contempt of Court sentence him to 3 months' simple imprison ment and fine of Rs.

200. In default of payment of fine to one month's further simple imprisonment. It was indeed a' case in which maximum sentence of imprisonment should have been awarded. Abdur Rahman is not present. Warrant of arrest to be issued against him, to serve the sentence imposed on him. A. H. Respondent convicted.