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1971 SCMR 743
[Supreme Court of Pakistan]
Present: Alvin R. Cornelius, J

M. H. KHONDKAR AND Another M. NOMAN Versus THE STATE AND Another DACCA

Petitions for Special Leave to Appeal Nos. 2‑D and 3‑D of 1964, decided on 15th January, 1964.
Result: Petitions dismissed.
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Summary

This matter involves petitions for special leave to appeal against orders of the Dacca High Court dismissing a contempt application and suo motu issuing show-cause notices for contempt to a petitioner and his advocates. The core legal question is whether special leave to appeal can be granted against the mere issuance of a suo motu show-cause notice for contempt by a High Court. The Supreme Court held, following the precedent in Sir Edward Snelson, that a show-cause notice issued by a High Court in the exercise of its jurisdiction to take cognizance of contempt cannot be interfered with at the initial stage, as granting leave would amount to prematurely assuming the High Court's jurisdiction. The key principle laid down is that the Supreme Court will not grant leave to appeal against a mere show-cause notice for contempt issued by a High Court unless a clear legal bar to the issuance of such notice is established.

Questions settled in this judgment
  • Can special leave to appeal be granted against the mere issuance of a suo motu show-cause notice for contempt by a High Court?
  • Does the fact that a contempt notice was issued by judges against whom allegations were made constitute a legal bar to the issuance of the notice?
special leave to appealsuo motu contempt noticecontempt of courtinherent jurisdictionshow cause notice

CORNELIUS, C. J.---This order relates to two petitions for special leave to appeal viz. P. 2-D of 1964 by Mr. M. H. Khondkar and Mr. Shafiur Rahman v. The State. and

C. P. 3-D of 1964 by Mr. M. Noman.

In the second case the respondents are:

(1)The Dacca Improvement Trust.
(2)Mr. A. Ehsan, C. S. P., Chairman, Dacca Improvement Trust,
(3)Mr. F. Ahmad, as Secretary, Dacca Improvement Trust, and in his personal capacity.
(4)Province of East Pakistan.

In each case, the leave is sought in respect of an order of a Division Bench of the Dacca High Court made on the 10th January 1964.

In the course of proceedings in two Writ Petitions moved before the same Bench by Mr. Noman, ex- Chief Engineer of the Dacca Improvement Trust, seeking relief against (a) an order of the Trust suspending him from his office and (b) the framing of charges against him by the Trust, Mr. Noman made a further application seeking action in contempt against Mr. A. Ehsan, Mr. F. Ahmad and the Trust. He also asked that the application should be placed before another Bench for disposal. The reason for the latter request is plainly given. It is that, during the pendency of the proceedings in his Writ Petitions against the D. I. T., two building plots were allotted to the Chief Justice of East Pakistan, who was a member of the Bench hearing the petitions, in residential areas known as "Banani" and "Gulshan", by Mr. A. Ehsan in his capacity as Chairman, D. I. T. It was alleged that on the 26th November 1963, Mr. A. Ehsan accompanied the Chief Justice to the "Gulshan" residential area, where the Chief Justice, made his choice of a plot and possession was made over to him soon after. An allegation of irregularity was made in relation to the "Banani" plot, as to which it was not known whether possession had been given or not. It was mentioned also that "some 3 or 4 months before a plot of land allotted to Mr. Justice M. R. Khan at the "Gulshan" area, which was cancelled earlier for non-compliance of the terms of allotment, was re-allotted to his Lordship". Mr. Justice M. R. Khan was the other member of the Bench.

This application was filed on the 20th December 1963. On the previous day, the 19th December the same Bench had rejected Mr. Noman's petition for ad interim stay of the order framing charges against him by the D. I. T. Earlier, on the 12th November 1963, the same Bench had rejected his petition for ad interim stay of the order of suspension made against him on the 14th October 1963. The contempt petition mentioned a number of other dates, viz.-

(1)that the plot in "Banani" was allotted to the Chief Justice on the 8th November 1963 ;
(2)that the plot in "Gulshan" was allotted to the Chief Justice on the 15th November 1963, "after cancelling some other person's allotment", and
(3)that the applications were adjourned on a number of dates which were given in detail. The learned Judges of the Division Bench, on the 10th January 1964, dismissed the contempt application, and on the same day suo motu, they issued a notice to (1) Mr. M. Noman, and (2) and (3) Mr. M. H. Khondkar and Mr. Shafiqur Rahman his Advocates, to show cause why they should not be committed for contempt of Court and punished, on the following ground viz.:

"And whereas it appears that in the guise of a contempt petition and a transfer petition you have, after suppressing and distorting facts, made allegations therein scandalising this Court and two of its Judges by ascribing motives to the Judges and attacking their integrity and impartiality so as to create distrust and destroy the confidence of the public in the Court and to bring the Court into disrepute and disrespect and also to lower and bring into contempt the authority of the Court and thereby to pervert or impede the due course of administration of Justice."

Mr. Noman by his petition seeks special leave to appeal against (1) the order of the Division Bench rejecting his application in contempt against the D. I. T., its Chairman and its Secretary, and (2) the order asking him to show cause why be should not be committed in contempt as above. Mr. Khondkar and Mr. Shafiqur Rahman seek special leave to appeal against the latter order only. In each petition, an application for stay of operation of the order to show cause is sought. Mr. Noman's petition against the order rejecting his applica--tion for commitment of the D. I. T., its Chairman notice to the opposite-parties, which has not been served yet in a manner such as to enable them to meet the case by a caveat. Moreover, that is a separate order from those issued in contempt and should be the subject of a separate petition. Mr. Brohi undertakes that a separate petition will be filed.

Mr. Noman's present petition will be dealt with as if it were a petition for special leave to appeal against the suo motu show---cause notice alone, and the considerations being the same, this petition and that by the two Advocates may be dealt with together. Orders staying operation of the suo motu notices are also sought.

We have heard Mr. Brohi in support of these prayers. There is a precedent case in this Court, viz., that of Sir Edward Snelson (PLD 1961 SC 237). A suo motu notice had been issued by the High Court of West Pakistan to Sir Edward Snelson to show cause why he should not be punished under the Contempt of Courts Act, and he sought special leave to appeal against that order. The matter was heard and decided by a Full Court, which used the following words :-

"This notice was issued in the exercise of the inherent jurisdiction, as defined and limited by the Contempt of Courts Act, 1926, of the High Court to take cognizance of contempt of itself. We do not think we can grant leave to appeal at this stage when only a notice has been issued, as that will be tantamount to ousting this jurisdiction of the High Court and taking upon ourselves to decide in the first instance whether a contempt of the High Court has been committed. We, there--fore, refrain from going into the merits of the case. The learned Advocate appearing in support of this petition has not been able to show that there is legal bar in the circumstances of the case to the issuance of the notice. We decline to grant leave to appeal against the order."

(C. M. P. No. P-1 of 1960, decided on 10th November 1960).--We consider that the principle laid down in the case of Sir Edward Snelson is applicable in this case as well. The point o difference viz., that here the notice has been issued by two learned Judges as to whom expressions importing existence of a personal interest were issued, does not constitute a legal bar to the issuance of a notice by them. There is a sufficient complement of Judges in the Dacca High Court to ensure that the case is placed before other Judges, or that other Judges are added to the Bench which issued the rule for the purpose of the hearing.

We accordingly dismiss both these petitions, with leave to Mr. Noman to seek special leave to appeal against the rejection of his prayer for action in contempt against the D. I. T. And its chief officials, separately.

Cited by 7 cases

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