' In this case some very interesting and important questions of law arise for consideration, and therefore, it is necessary to set out accurately the facts as they are either admitted or borne out from the record, before entering into a discussion of the several points to be decided.
2. On 10-9-1988 at about 9-15 A.M. Appellant Ghulam Shabbir, a disabled person was sitting in the corridor of the Court premises just near the door of the Court room of 1st Additional District and Sessions Judge, Khairpur, and was found smoking a cigarette, which in the opinion of learned Additional District and Sessions Judge contained powder of heroin. The appellant was, therefore, asked by the Court peon and the Court orderly to leave the premises, which he declined. He was, therefore, called inside the Court room and was directed to leave the premises. The appellant not only refused to leave the Court premises, but shouted as under:-- "Judge Sahib do not make haste with me. I know the powers of the Court. You cannot do anything or take action against me. I will not evict from the Court premises. None can dare to expel me."
It is alleged that the appellant had not only offered insult to the Additional District and Sessions Judge, but also caused interruption in judicial proceedings and thereby committed an offence punishable under section 228, P.P.C. It was, therefore, proposed to take an action against him. The appellant, however, refused to accept the show-cause notice and to execute a P.R. Bond and consequently he was taken into caustody. On the same day a formal charge was framed against the appellant and he was convicted for the offence under section 228, P.P.C. And sentenced to suffer S.I. For six months and to pay a fine of Rs,1,000 or in default to suffer S.I. For one month more.
By this appeal the appellant has challenged his conviction and sentence.
3. Section 480, Cr.P.C. Deals with what is known as direct contempt of Court. In such an exigency the Court has an option to proceed either under section 480, Cr.P.C. Or under section 476, Cr.P.C. The case of Emperor v. Ram Lal Anand, reported in AIR 1940 Lahore 233, supports this view in the following words:-- "In my opinion therefore in the case of a contempt committed coram non judice and punishable under section 228, P.P.C., a Court has the option of proceedings either under sections 480 to 482, Criminal P.C. Or under.
4. This view was reiterated in the case of Bachai Singh v. State reported in AIR 1959 Allahabad 693, wherein it was held:--
5. "Section 480, Cr.P.C. Lays down that when an offence punishable under S.228 I.P.C. Is committed in the view or presence of any criminal Court the Court may cause the offender to remain in custody and at any time before the rising of the Court on the same day may, if it thinks fit, take cognizance of the offence and sentence him to a fine not exceeding Rs,200. If the Court considers that the offender should be imprisoned or that a fine exceeding Rs, 200 should be imposed upon him it can after recording the facts constituting the offence and the statement of the accused forward the case to a Magistrate having jurisdiction to try the same; vide S.482, Cr.P.C. It was contended that the applicants could be proceeded against only in the manner laid down in 5.480 or 482, Cr.P.C. And not on a complaint by the Judicial Officer..
' There is no force in this contention. The provisions in Ss.480 and 482 are not exhaustive and do not derogate from the power of a Court to take cognizance of the offence under S.190(1) (a) on a complaint under 5.195, Cr.P.C. The provisions of Ss.190(1) (a) and 195 are not at all affected by those of Ss.480 and 482. Cognizance of an offence punishable under S.228, I.P.C. Can be taken on a complaint of the Court concerned or the offender may be dealt with by the Court concerned as laid down in S.480 or 482, Cr.P.C.; here the offenders have been dealt with as laid down in Ss.190(1)
(a) and 195. The word used in S.480 is "may"; it means that S.480 is only an enabling section and confers power upon the Court concerned to punish the offender summarily instead of having him tried regularly on a complaint.
' There is nothing to suggest that the power of the Court aggrieved by the offence punishable under S.228, I.P.C. Is simply to punish the offender under S.480 or to forward him to a Magistrate as laid down in S.482. The power conferred under 5.482 is alternative to the power conferred under S.480 of sentencing the offender summarily to a fine not exceeding Rs,200. The power of S.482 is to be exercised only when part of the power conferred by S.480, namely, that of detaining the offender in custody has been exercised but, as I said earlier, the power of detaining the offender in custody is not the only power of the Court aggrieved by the offence and its power of making a complaint of the offence as laid down in S.195 remains intact.
5. A perusal of section 480, Cr.P.C. Makes it clear that the Court after taking cognizance can sentence the offender to a fine not exceeding two hundred rupees, and in default thereof to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid. No substantive sentence of imprisonment (even of rising of Court) can, therefore, be awarded under section 480, Cr.P.C. However, recourse can be had to the provisions of section 482, Cr.P.C., if the Court considers the sentence of fine inadequate.
6. Obviously the learned Additional District and Sessions Judge followed the latter course and took action under section 476, Cr.P.C. This section as it stood prior to the enforcement of Law Reforms Ordinance, 1972, provided as follows:- "476.-(1) When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in section 195, subsection (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate: ' (Provided that, where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint).
(2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under section 200.
(3) Where it is brought to the notice of such Magistrate or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage adjourn the hearing of the case until such appeal is decided."
7. Section 476, Cr.P.C. Was substituted by the Law Reforms Ordinance, 1972, in the following words:-- "476. Procedure in cases mentioned in section 195.--(1) When any offence referred to in section 195, subsection (1), clause (b) or clause (c), has been committed in, or in relation to, a proceeding in any Civil, Revenue or Criminal Court, the Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trial in Chapter XXII.
(2) When in any case tried under subsection (1) the Court finds the offender guilty, it may notwithstanding anything contained in subsection (2) of section 262:--
(a) pass any sentence on the offender authorised by law for such offence, except a sentence of death, or imprisonment for life, or imprisonment exceeding five years, if such Court be a High Court, a Court of Sessions, a District Court or any Court exercising the power of a Court of Sessions or a District Court;
(b) sentence the offender to simple imprisonment for a term which may extend to three months, or to pay a fine not exceeding one thousand rupees, or both, if such Court be a Court of a Magistrate of the First Class, a Civil Court other than a High Court, a District Court, or a Court exercising the powers of a District Court, or a Revenue Court not inferior to the Court of Collector;
(c) sentence the offender to simple imprisonment for a term not exceeding one month, or to pay a fine not exceeding fifty rupees, or both, if such Court be a Criminal Court or a Revenue Court other than a Court referred to in clause (a) or clause (b).
(3) The powers conferred on Civil, Revenue and Criminal Courts under this section may be exercised in respect of any offence referred to in subsection (1) and alleged to have been committed in relation to any proceeding in such Court by the Court to which such former Court is subordinate within the meaning of subsection (3) of section 195.
(4) Any person sentenced by any Court under this section may, notwithstanding anything hercinbefore contained, appeal:--
(a) in the case of a sentence by the High Court, to the Supreme Court;
(b) in the case of a sentence by a Court of Session or District Court, or a Court exercising the powers of a Court of Session or a District Court, to the High Court; and
(c) in any other case, to the Sessions Judge.
(5) The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeals under this section and the Appellate Court may alter the finding or reduce or enhance the sentence appealed against."
8. The amended section reproduced above empowered the Court to take cognizance of an offence referred to in clause (b) or clause (c) of subsection (1) of section 195, Cr.P.C., if the same has been committed in or in relation to, a proceeding in any Civil, Revenue or Criminal Court and pass sentence under subsection (2) thereof. The scheme of amended section was considered in the case of Rahim Bakhsh and another v. The State, reported in PLD 1983 Lah.397, and it was held:- "A reference in passing may be made to the provisions of sections 476 and 476-A, Cr.P.C., as they stand after amendment by the Law Reforms Ordinance, 1972. The scheme of section 476 in its present form appears to be that when an offence referred to in subsection (1) clause (b) or (c) of section 195, Cr.P.C. Has been committed in, or in relation to, a proceeding in any Civil, Revenue or Criminal Court, then that Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials. Under section 476-A, however, such Court may, after recording the facts constituting the offence and the statement of the accused person, forward the case to a Court having jurisdiction to try the case and may require security to be given for the appearance of such accused person before such Court, or, if sufficient security is not given, shall forward such person in custody to such Court. Then subsection (2) thereof, provides that a Court to which a case is forwarded under this section shall proceed to hear the complaint against the accused person in the manner hereinbefore provide. On a combined reading of these two provisions, it appears plain that a Court referred to in section 476 read with section 195, Cr.P.C.
May itself take cognizance of the offence or forward the case under section 476-A, Cr.P.C. To a Court having jurisdiction to try the case."
9. In the case of S.M.Rehmatullah v. The State, reported in PLD 1986 Kar. 560, a learned Judge of this Court examined section 476, as amended, and observed as follows:-- "From the plain reading of section 476(1), Cr.P.C. It is clear that any offence referred to in section 195, subsection (1), clause (b) or clause (c) the Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for the summary trials in Chapter XXII, but in other cases as referred in 195 (1) (a) the cognizance could be taken on complaint."
10. Clause (b) of subsection (1) of section 195, Cr.P.C. Includes section 228, P.P.C. And consequently the Additional District and Sessions Judge was competent to take cognizance of such offence and try the offender in accordance with the procedure prescribed for summary trial in Chapter XXII, if the offence was committed in or in relation to, a proceeding pending before him. The word "proceedings" is a very comprehensive term and, generally speaking, 'means a prescribed course of action enforcing a legal right and hence it necessarily embraces the requisite steps by which a judicial action is invoked (See Law Terms and Phrases by Mokal). As observed in the case of Hrishikesh Nag Iswa r Chandra Nag v. State, reported in AIR 1965 Tripura 13, section 195 (1) (b),Cr.P.C.
Requires that there should be some relationship between the offence alleged to have been committed and the proceedings. Applying this test to the facts of the present case, it appears to me that smoking of a cigarette outside the Court room in the corridor had no nexus with a proceeding of a bail application in the Court of 1st Additional Sessions Judge, Khairpur, and although the learned Additional District and Sessions Judge has referred in the impugned judgment that the appellant continued smoking in Court room, this fact finds no place in the charge framed against him. There was, therefore, no legal justification for taking cognizance against the appellant under section 476, Cr.P.C. At best the recourse could have been made under section 480, Cr.P.C. Or under section 482, I Cr.P.C.
11. I now proceed to examine the case on merits. The remarks attributed to appellant which I have reproduced in Para-2 above, even if accepted on face value do not make out a case under section 228, P.P.C. I may usefully borrow the following observations made in the case of Parshotam Lal (Rajpal) v. The Crown, reported in AIR 1925 Lahore 210:-- "It has been repeatedly held that the chief ingredient of the offence contemplated by S.228 of the Indian Penal Code is the intention of the offender, and that the question is not whether a judicial officer felt insulted, but whether an insult was actually offered and intended. In the present case it is clear from all the circumstances that no insult had been offered, nor was there any intention on the part of the petitioner to insult or cause interruption to the learned Subordinate Judge. A judicial officer is no doubt fully entitled to maintain the dignity of the Court, but, as often pointed out, he should not be too sensitive and too ready to take offence where none is intended."
12. Section 228, P.P.C. Is confined to intentionally offering insult, or causing interruption, to any public servant while he is sitting in any stage of a judicial proceeding. Admittedly the appellant was found smoking outside the Court room. There is no indication on record that he forced his entry in the Court room thereby interrupting the Court proceedings. In fact he was called in the Court room by show of force. The utterances made by the appellant in the above H situation were that of a disappointed litigant and there appears no justification to import any intention of insulting the Judge. The question is not whether the Additional District and Sessions Judge felt insulted, but whether any insult was offered and intended. This aspect of section 228,P.P.C. Was considered in the case of Dalip Singh v. Emperor, reported in AIR 1921 Lahore 102, and it was observed:-- "A Judicial Officer has no doubt to maintain the dignity of his Court, but he must not be too sensitive, especially when his own action is not, as in the present case, altogether justified. I have given my careful consideration to the entire material before me, and I cannot hold that a case of an intentional insult or interruption has been made out."
13. In Iqbal Hassan Qazi v. The State, reported in 1969 P Cr.L J 627, the subordinate Courts were advised not to be oversensitive in such matters. At page 630, it was observed:-- "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."
14. The warning which the Supreme Court gave in the case of Ikramullah v. The State, reported in 1969 P Cr. L J 920, may very well be kept in mind while dealing with such cases and the weapon of contempt is to be used sparingly and always with reference to administration of justice.
15. There is also no indication on record to show that the appellant was in fact smoking a cigarette which contained powder of heroin. No expert evidence was available and admittedly the appellant was not medically examined to lend support to this allegation. Not only this, but the learned Additional District and Sessions Judge imported in his judgment an information about an earlier incident in which the appellant is said to have misbehaved with Deputy Commissioner, Khairpur, which is clear from the following extract of the judgment:-- "The A.P.P. Of this Court also brought on the notice of Court that the accused had previously misbehaved and abused Deputy Commissioner, Khairpur, during the process of last local bodies election, but apparently no action was taken against him which has encouraged him for adopting such a contemptuous attitude before the Court."
This was the most unsatisfactory way of dealing with cases of this nature in which the Judge himself acts as a prosecutor. Again a judgment cannot he based on outside information or personal knowledge. The award of maximum sentence, the major portion of which has already been served out by the appellant, further reflected the extent of annoyance of the learned Additional District and Sessions Judge, Khairpur.
16. For all the above reasons, the impugned judgment is liable to be set aside on both the scores, viz. Legal and factual, and is accordingly set aside. The appeal is accepted. The appellant who is on bail is discharged from his bail-bond. The fine, if paid he refunded to him. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.