1969 P Cr (PLP)

The appellant made the statement to the following effect :‑ "I had only wished Ali Muhammad."

3. The learned Additional Sessions Judge passed the following order :‑ "Accused has not denied the charge. He has deliberately created fuss; thereby interrupted proceeding of this Court. He is a Court clerk and ought to know Court etiquette. I sentence him to a fine of Rs.

25. In case of default he will undergo simple imprisonment for three days."

4. The reply of the appellant in obedience to the show‑cause notice shows that the appellant had denied the accusation, but surprisingly, the learned Additional Sessions Judge, Karachi, was of the view that he had not denied the charge. He then proceeded to convict him on the plea of guilty.

5. I have examined the show‑cause notice and the reply of the appellant and I am of the opinion that the reply cannot be taken a plea of guilty. In fact, the reply was an explanation to the accusation.

6. The learned counsel for the appellant has contended : (i) that the allegations put in the show‑cause notice, even if true, den mot make out an offence under section 228, Pakistan Penal Code, and as the, offence was committed outside and not within the view of the Court, the summary trial of the appellant was beyond the scope of section 480, Criminal Procedure Code, and (ii) that the trial Court has not indicated the stage of the judicial proceedings in which the Court was interrupted or insulted or the language used by the appellant.

7. Section 228 of the Pakistan Penal Code, provides punishment for an offender who intentionally offers any insult or causes any interruption to any public servant while such public servant is within in any stage of the judicial proceedings. In a trial for an offence under section 228, P. P. C., the procedure is envisaged in sections 480 and 481 of the Criminal Procedure Code. The reading of section 480 of the Code makes it very clear that Civil, Criminal or Revenue Court has powers only to deal with an offender under section 228, P. P. C., if he had committed that offence within the view or presence of the Court. In the instant case, the appellant shouted outside the Court and there is nothing on the record to suggest that it was in the presence or within the view of the learned Additional Sessions Judge. Therefore, I hold that the trial of the appellant is beyond the scope of section 480, Criminal Procedure Code. In case, the trial Court was of the view that shouting outside the Court was an offence, the learned Additional Sessions Judge should have made a preliminary enquiry under section 476 of the Code and should have lodged a complaint under section 195 of the Code.

8. The careful examination of section 228, Pakistan Penal Code, would no doubt indicate that in order to hold one guilty under this section, it must be proved that the offender had intentionally committed the contempt. There is no material on the record of this case to show that the appellant intended to insult or interrupt the Court in the judicial proceedings, nor there is anything in the judgment to show that the shout was addressed to the Court. According to the appellant he had wished to one Ali Muhammad. It can hardly be treated as an intentional insult to the Court or interruption of the proceedings, even if it was actually over‑heard by the Presiding Officer. While arriving at this conclusion I am fortified by In re : Ramasamy Gounden ((1915) 30 I C 434), where his Lordship observed as under :‑ "The Magistrate says that the proceedings in his Court were interrupted by the audible remark made by the accused. That is not enough to convict the accused. 7 he Court has to be satisfied that the accused intentionally offered interruption to the Court. There are no materials on which a Magistrate could have come to the conclusion that the accused intended to insult him, or interrupt his proceedings . . ."

9. It is now an accepted principle of law that in a trial for an offence of which cognizance has been taken under section 480, Criminal Procedure Code, the omission to record proceedings in the manner laid down in section 481, Cr. P. C. is not merely an irregularity but an illegality in the mode of trial. This is apparently for the reason that section 480, Criminal Procedure Code, prescribes a summary trial of direct contempt of Court. The provisions of subsection (2) of section 481, Criminal Procedure Code are mandatory in nature and the record of the Court must show the nature and the stage of the judicial pro ceedings in which the Court was interrupted or insulted when sitting and the nature of the interruption or insult. All that appears from the record of this case is that the appellant shouted outside the Court, but it does not indicate at what stage of the trial the offence was committed and what was the nature of the interruption or insult, nor the actual words used by the appellant find mention in the accusation. If the provision of subsection (2) of section 481, Criminal Procedure Code are not complied with it is fatal to the trial.

10. I have given my anxious thought to the facts of this case, but I find it difficult to hold that the appellant had inten tionally offered any insult or caused any interruption to the Additional Sessions Judge in the judicial work while sitting and hearing the case State v. Amir Gul.

11. Before parting with this judgment, I would like to remind Courts below that they should not be unduly sensitive or touchy about their dignity. A mere audible remark not meant for Court should not be taken an interference or interruption in Court's work while sitting in any stage of judicial proceedings.

12. For the foregoing reasons, the appeal is accepted and the conviction and sentence imposed upon the appellant are set aside. I have been told that the fine has been paid by the appellant. The same shall be refunded. Appeal accepted.