Sardar Mohammad petitioner, a Head Constable of the Police Department, was convicted by Mr. S. M. Ismail Magistrate First Class, Lahore for an offence under section 228, P. P. C. With an award of fine of Rs. 200 or one month's simple imprisonment in default of payment thereof. Having failed in appeal, he has preferred the present Criminal Revision.
2. The short background of the case is that the petitioner had filed a complaint under section 406/420, P. P. C. Against his father-in-law Hakim Muhammad Amin which came up for hearing before the learned Magistrate on 4-7-1964. When the second witness produced by him was being cross-examined, the petitioner allegedly started misbehaving and tried to interrupt the proceedings by shouting aloud, threatening the defence counsel and by making a menancing gesture towards the Presiding Officer himself. Accordingly, recourse was had to the procedure laid down in section 480 of the Cr. P. C. The petitioner was detained in Court. A show-cause notice was issued to him followed by to questions put to him by the Court. The first question as to whether he had understood the notice was replied in the affirmative while the second relating to the admission of offence was replied in the negative. Without having enquired from the petitioner as to whether he wished to make a detailed statement, the learned Magistrate proceeded to record his order of conviction which was upheld in appeal by the learned Additional Sessions Judge giving rise to the present Criminal Revision,
3. It is contended by the learned counsel for the petitioner that the procedure laid down in section 481 of the Cr. P. C. Has not been strictly observed by the learned Magistrate inasmuch as the petitioner was not afforded an opportunity of making a statement. It is next submitted that the failure of the learned Magistrate to record the statement of the petitioner affording him an opportunity to explain his position being an omission of a fundamental nature still remains incurable, notwithstanding the enlargement of the scope of section 537, Cr. P. C. As amended by the Criminal Law Amendment Act, 1963.
4. Having perused the record of the proceedings, I find that the position is factually correct inasmuch as no statement of the petitioner was recorded by the learned Presiding Officer nor was a question put to him as to whether he, wished to make a statement in his defence.
5. In order to appreciate the correct legal position, the relevant provision contained in section 481, Cr. P. C. May be reproduced. It reads as follows:-
5. 481, Cr. P. C.-(l) In every such case the Court shall record the facts constituting the offence, with the statement (if any) made by the offender, as well as the finding and sentence.
(2) If the offence is under section 228 of the P. P. C., the record shall show the nature and stage of the judicial proceeding in which the Court interrupted or insulted was sitting and the nature of the interruption or insult.
In so far as the second part of section 481,. Cr. P. C. Is concerned, there appears to be ample compliance with the legal provision inasmuch as the notice issued to the petitioner made specific reference to the nature and stage of judicial proceedings interrupted by the petitioner as also the nature of the interruption or insult attributed to him. There does not, however, appear to be a proper compliance of the provision contained in subsec--tion (1) of section 481, Cr. P. C. Inasmuch as the record is only confined to the issuance of a notice to the petitioner and the putting of to questions to him referred to earlier followed by the order of conviction based on the solitary ground that the plea of innocence of the petitioner could not be upheld inasmuch as the alleged interruption had taken place in full view of the Court itself. It is thus clear that the petitioner was not offered the choice to make a statement. The words "if any" occurring in parenthesis in the provision would not, in my view, dispense with the offer of such an option to the offender as it only refers to its non-exercise by him.
6. I have also considered the question of the curability of the omission on the part of the Presiding Office in the light of the extended scope of the relevant provision contained in section 537, Cr. P. C.
As amended. It appears to me that it cannot be condoned merely as an error or irregularity inasmuch as it has the effect of depriving the petitioner an opportunity of explaining his position and offering a defence of the charge levelled against him. Although the law does not in the least detract from the reliability of the personal opinion expressed on the basis of his observation, by the Presiding Officer who in extraordinary cases of this nature would himself become a witness seldom to be disbelieved, yet the failure to offer the petitioner an opportunity of explaining his position particularly when likely to be visited by an order of conviction in summary proceedings cannot be characterised as a mere irregularity curable under section 537, Cr. P. C. Krishna Chandar Bhomik v.
The Crown (AIR 1923 Cal. 562) appears to be directly in point and fully attracted to the facts of this case. An argument was raised before their Lordships that the words "if any" occurring in subsection
(1) of section 481, Cr. P. C. Indicated that the Court was under no obligation to give an opportunity to the accused to make a statement. Being patently misconceived, the contention was over--ruled.
Their Lordships placed reliance on to earlier authorities reported: In re: Edward Hutchinson Pollard ((1868) 2 P C 106) and Chan Hang Kin v. Supreme Court of Hong Kong (4 1 C 539 (P C)). In the circumstances, therefore, there is no escape from the position that the order of conviction cannot be maintained and is hereby set aside.
7. It may, however, be emphasised that notwithstanding the sanctity attached to judicial proceedings and the sensitivity of the law to uphold the prestige of the Courts in that regard which is the privilege of this Court to jealously uphold, the procedure laid down in exceptional cases of Contempt of Court wherein the Presiding Officer himself is competent to punish the contemner has to be faithfully adhered to, particularly when such an offence committed before the Presiding Officer is likely to result in conviction in summary proceedings.