Supreme Court
Appellate Division
Criminal)
Present:
Syed A. B. Mahmud Hussain CJ
Ahsanuddin Choudhury J
Fazle Munim J
M.A. Zaher…………Appellant
And
Haji Jalal Ahmed ………. Appellant
And
Md. Khurshed Alam Khan………….Appellant
Vs.
Mainuddin Ahmed and another……..Respondent
Judgment
April 27, 1976
Lawyers Involved:
K. A. Bakr, Advocate, instructed by A. M. Khan Chowdhury, Advocate-on-Record— For the Appellant in all the appeals.
Md. Meser AH, Senior Advocate instructed by S. M. Huq, Advocate-on-Record.—For the Respondent No. 1 in Criminal Appeal No, 7-D /71.
S. S. Hoda, Advocate-on-Record—For the Respondent No. 2 in all the appeals.
Not represented.—For the respondent No. 1 in Cr. Appeals Nos. 6-D & 8-D/71.
Criminal Appeal Nos. 6-D, 7-D, and 8-D of 1971.
(From the judgment and order dated 15-4-68 passed by the erstwhile High Court of East Pakistan in Criminal Miscellaneous Cases No. 204/67 and 50/68)
Judgment:
Ahsanuddin Choudhury, J.—These three appeals by special leave are from the same judgment and order of a Division Bench of the High Court, Dacca and are disposed of by this judgment.
2. The appeals arise in the following circumstances. Respondent No. 1 Mr. Mainuddin Ahmed, a member of the Naranyanganj Municipal committee filed a suit against (1)The Chairman, Narayanganj Municipality, (2) The Narayanganj Municipal Committee, (3) The Commissioner, Dacca Division and Controlling Authority of Municipal Committees and (4) Government of East Pakistan (now Bangladesh) in the Fourth Court of the Munsif, Narayanganj for permanent injunction restraining them from holding the meeting of the Municipal Committee fixed on the 10th December, 1966 for electing a Vice-Chairman. In that suit an order of ad interim injunction was passed on 9th December, 1966 against the Chairman, Municipal Committee and Commissioner, Dacca Division. The order of ad interim injunction was not served on the Chairman, Municipal Committee even on the 10th December, 1966 but the same was served on the Controlling Authority, namely, the Commissioner, Dacca Division in the afternoon of 10th December. The meeting of the Municipal Committee was held at 10 A.M. on the 10th December, 1966 as scheduled. In that meeting on the proposal of Mr. M.A. Zaher, appellant in Appeal No. 6-D of 1971, Haji Jalaluddin Ahmed, appellant in Appeal No. 7-D of 1971 was declared elected unopposed as Vice-Chairman of the Narayanganj Municipal Committee.
3. On the 24th December, 1966 respondent Mr. Mainuddin Ahmed filed an application under Order XXXIX, Rule 2 of the Code of Civil Procedure before the Munsif of the afore said court for taking action against the Commissioner, Dacca Division, Mr. M.A. Zaher and Haji Jalaluddin Ahmed. It was alleged that when the petition for injunction was moved before the Munsif, M. A. Zaher, and Haji Jalaluddin Ahmed were present in the court precincts till the order of injunction was passed and they also came to know about the injunction order from respondent Mainuddin Ahmed. Nevertheless they participated in the meeting and elected a Vice-Chairman in violation of the order of injunction. There upon the Munsif started a Miscellaneous Case being No. 127 of 1966 and having completed the enquiry found the Chairman, Municipal Committee and the Commissioner, Dacca Division not guilty of the contempt of court as the order of temporary injunction was not served on them prior to the holding of the meeting on the 10th December, 1966. But he found Mr. M.A. Zaher and Haji Jalaluddin Ahmed guilty of the offence of contempt of Court. Accordingly he made a reference to the High Court, Dacca.
4. Upon receipt of the report of the Munsif on the 10th August, 1967, High Court, Dacca issued a Rule in Miscellaneous Case No. 240 of 1967 against Mr. M.A. Zaher and Haji Jalaluddin Ahmed. When the mailer came up on 1-3-68 for hearing before a Division Bench, a Rule, suo motu was issued by it against Captain M. M. Haque, Chairman, Naranyanganj Municipality, Md. Khurshed Alam Khan, Secretary, Naranyanganj Municipality and Nurul Islam Sikdar, Head Assistant Basic Democracy Section, Divisional Commissioner’s Office, Dacca directing them to show cause as to why proceedings for contempt of court should not be drawn up against them as well. The High Court found Mr. M. A. Zaher and Haji Jalaluddin Ahmed guilty of the offence contempt of court on the finding that they had deliberately violated of the order of the injunction and sentenced Mr. M.A. Zaher to pay a fine of Tk. 300/- in default to suffer simple imprisonment for 7 days and sentenced Haji Jalaluddin Ahmed to pay a fine of Tk. 500/- in default to suffer simple imprisonment for 10 days and the rule was made absolute. The High Court also found Mr. Khurshed Alam Khan guilty for abetting the offence of contempt of court and sentenced him to pay a fine of Tk. 200/- in default to suffer simple imprisonment for 5 days making the Rule partially absolute.
5. Special leave to appeal was obtained to consider the following questions:
“(i) whether the appellants came to know about the injunction order before the meeting at 10 A.M. on the 10th of December, was held;
(ii) whether the appellants who were not parties to the suit could be convicted for contempt of court for disobedience of the order of injunction; and
(iii) whether the order of injunction was passed fully without jurisdiction on the ground of non-maintainability of the suit for non-compliance of the provisions of Article 94 of the B.D. Order, 1959 and section 127 of the Municipal Administration Ordinance.”
6. Mr. K.A. Bakr, learned counsel at the outset submitted that he had no instruction as regards Appeal No. 6-D and 7-D of 1971 and suggested that these two appeals might be dismissed for non-prosecution or for default. It is to be noted that these appeals-related to quasi criminal matters and as such are to be disposed of on merits even in the absence of the appellants, namely, Mr. M.A. Zaher and Haji Jalaluddin Ahmed.
7. As already noticed the allegation against Mr. M.A. Zaher and Haji Jalaluddin Ahmed was that they were present in the court precincts till the order of injunction was passed and they came to know about the injunction order from Mainuddin Ahmed who after the order of injunction came out of the court room and informed those of his party men who were standing along with Mr. M.A. Zaher and Haji Jalaluddin Ahmed. Having known about the order of injunction on the 9th of December, 1966 both Mr. M.A. Zaher and Haji Jalaluddin Ahmed attended on the 10th of December, 1966 the meeting in which Haji Jalaluddin Ahmed was elected Vice-Chairman unopposed. Further allegation was that Haji Jalaluddin Ahmed having been elected Vice-Chairman on the 10th of December, 1966 led a procession by the road running by the side of the court premises. The procession stopped at the gate of the court premises, some crackers were burst and some slogans were shouted in front of the gate of the court premises. He thereby created noise sufficient to disturb the court’s work with intention to show disregard to the court’s order of injunction. Obviously it was a clear defiance of the court’s authority which was thereby belittled in the eyes of the public. Mr. M.A. Zaher also is said to have uttered certain derogatory words which amounted to gross contempt of court and those words were repeated by Haji Jalaluddin Ahmed. The High Court has clearly held that the above allegations were proved on evidence adduced by the complainant-respondent Mainuddin Ahmed. In view of the facts, circumstances and evidence on record we have no reason to hold otherwise. Now the question is whether Mr. M.A. Zaher and Haji Jalaluddin Ahmed who are not parties to the injunction proceedings could be held liable for contempt of court.
8. The learned Munsif, it is evident, was conscious of the limitation of his jurisdiction to deal with a matter of this nature. He accordingly referred the matter to the High Court for appropriate action, if any. The High Court dealt with this matter under Act XII of 1926 being of the view that Mr. M.A. Zaher and Haji Jalaluddin Ahmed not having been parties to the injunction proceeding were liable only under the aforesaid Act, if they had, at all, committed any contempt of court.
9. It is to be noted that upon a reference from the Subordinate Court regarding matters like the present ore, the High Court, according to the established practice either takes evidence itself or directs the Subordinate Court to record the evidence and forward the memoranda of evidence to the High Court for its consideration. In the instant case the High Court thought it necessary to take evidence itself. On the evidence adduced before the High Court Mr. M. A. Zaher and Haji Jalaluddin Ahmed were found guilty of the offence of the contempt of court for their having deliberately participated in the meeting of the Municipal Committee for election of the Vice-Chairman of the Municipal Committee even though they had prior knowledge of the order of injunction prohibiting the holding of meeting for the purpose of election of the Vice-Chairman. They, therefore, acted in utter disregard to and deliberate violation of the order of injunction of the court. Further they arranged and led a procession to show their power vis-a-vis the power of the court and they also uttered objectionable words derogatory to the power and prestige of the court with a view of humiliating the authority of the court and lower down it s power and prestige in the estimation of the public. On consideration of the evidence adduced against Mr. M.A. Zaher and Haji Jalaluddin Ahmed, the High Court has rightly held them liable for contempt of court. We find no reason to interfere with the order of the High Court convicting and sentencing Mr. M .A. Zaher, and Haji Jalaluddin Ahmed for contempt of court. The appeal Nos. 6-D and 7-D of 1971 are accordingly dismissed. The conviction of “Mr. M.A. Zaher and Haji Jalaluddin Ahmed as well as the sentence passed on them are hereby affirmed. Now let us turn to appeal No. 8-D of 1971 preferred by Mr. Khurshed Alam who was Secretary, Narayanganj Municipality at the relevant time.
10. The High Court, as already stated, issued a Rule suo motu against appellant Khurshed Alam and two others, namely, Captain M.M. Haque, Chairman, Narayanganj Municipality and Nurul Islam Sikdar, Head Assistant in Divisional Commissioner’s Office, Dacca. The Rule was made absolute only in respect of the appellant Md. Khurshed Alam Khan. It was alleged that at about 12-30 P.M. on the 9th December, 1966 Mr. Mainuddin Ahmed along with the process server (P.W. 3) of the court of the Munsif, Naranyanganj and two others went to the Municipal office, called out the Secretary Khurshed Alam Khan and P.W. 3 the process server offered the notice upon the Chairman to appellant Khurshed Alam Khan, the Secretary, Narayanganj Municipal Committee and asked him to accept in for the Chairman. It was further alleged that Khurshed Alam Khan read the contents of the notice and then declined to accept the notice on the ground that the Chairman asked him not to accept anything addressed to the Chairman and therefore, he expressed his inability to accept the notice for the Chairman in violation of the order of his boss. Mr. K.A. Bakr, Learned Counsel has contended that there was, as a matter of fact, no offer of any notice for the Chairman to the Secretary. Referring to the discrepancy in the evidence of P.W. 1 Mr. Mainuddin Ahmed and that of P.W. 3, the process server, it was contended that they did not at all approach the Secretary to accept any notice, for the Chairman. P.W. 1 Mr. Mainuddin Ahmed appears to have deposed that he along with the process server, one member named Aziz Sardar, and another named Bijoy Kumar Saha went to the Municipal Office to serve the injunction order while P.W. 3, the process server deposed that P.W. 1 Mr. Mainuddin Ahmed alone accompanied him when he went to he Municipal Office, to serve the notice upon the Chairman on the 9th of December, 1966 and none else was with them. That P.W. 1 Mainuddin Ahmed and one Abdul Aziz accompanied the process server has been admitted by the appellant in the affidavit filed by him. There is thus no force in the contention that due to the discrepancy in the evidence of P. Ws. 1 and 3, it should net be believed that the notice upon the Chairman was offered to the Secretary. The learned counsel further referred to the report of the process server to show that the process server did not at all go to the Municipal Office and that there was no tender of the notice for the Chairman to the Secretary. But the evidence of P.Ws. 1 and 3 considered as a whole clearly shows that they went to the Municipal office, called the Secretary from his residence to the office and tendered the notice meant for the Chairman to the appellant in his capacity as Secretary of the Municipal Committee. Needless to say, all correspondence addressed to the Chairman are to be received by the Secretary, but on the excuse that he was asked by the Chairman not to receive any letter addressed to the Chairman, he declined to receive the notice.
11. The High-Court has convicted the appellant for abetment of the offence of contempt of court. The High Court has observed that the appellant should not have refused to accept the notice on the plea that he was directed by his boss, the Chairman not to receive any letter or correspondence addressed to him. Knowing full well that it was a notice from the court he could not decline to accept the same with impunity because the court is far above his boss, the Chairman who was equally amenable to the Jurisdiction of the Court.
12. The learned counsel, however, submitted that the Secretary asked the process server to go to the residence of the Chairman to serve the notice upon him personally and the process server went to the residence of the Chairman who was reported to be absent from the residence. So the notice could not be served on him. In this context the learned counsel tried to impress upon us that it is difficult to hold that the appellant abetted the commission of the offence of contempt of Court.
13. The High Court on the evidence on record has clearly held that the appellant was made aware of an injunction passed by the Civil Court directing the Chairman of the Narayanganj Municipal Committee not to hold the meeting for electing a Vice-Chairman. As a Secretary of the Naranyanganj Municipal Committee it was hit duty to bring to the notice of the Chairman that an injunction order was issued by the court prohibiting the Chairman from holding the meeting for electing a Vice-Chairman. The appellant did not adduce any evidence to show that he was not aware of an order of injunction prohibiting the Chairman from holding the meeting for election of a Vice-Chairman. There is nothing on record to show that the appellant acted in a manner rendering assistance to the administration of justice
14. The next contention is that the principal contemnors, the Chairman having been acquitted of the charge of contempt of court it necessarily follows that no offence of contempt of court was committed and in that view of the matter there was no question of abetment of such offence and as such the appellant could not be convicted as an abettor. The evidence shows that the notice of injunction could not be served upon the Chairman personally. Failing personal service, the process server did not unfortunately serve the notice by hanging on any conspicuous place in the residence of the Chairman in presence of other persons. The evidence does not also show that the Chairman was made aware of the order of injunction by the appellant even though he was made aware of the notice of the injunction order. Hence on technical ground the Chairman was found not guilty though the offence of contempt of court by violation of its order of injunction was committed in holding the election of the Vice-Chairman. There is no evidence, whatsoever, that the appellant having been aware of the order of injunction of the court prohibiting the election of Vice-Chairman took any step to see that the meeting was not held in violation of the order of injunction. Hence there is no force in the contention that the appellant could not be convicted as an abettor when the principal contemner had been acquitted.
15. It is to be noted that it is an established principle that no one should bring the court to disrespect or minimise its authority by either directly violating its order or abetting the violation of it. Appellant’s passive action facilitated the flouting of the authority of the court and undermining it in the eyes of the public. The appellant has, therefore, been rightly convicted for abetment of the offence of contempt of court.
16. Last contention is that the order of injunction was passed without jurisdiction on the ground of non-maintainability of the suit for non-compliance of the provisions of Article 94 of the Basic Democracy Orders. 1959 and section 127 of the Municipal Administration Ordinance. It is to be pointed out that these appellants were not parties to the suit in which the injunction order was issued. They have been dealt with under Act XII of 1926 for having committed contempt outside the court and did act in a manner by which the court was brought into disrespect by flouting and undermining the authority of the court in the estimation of the public. In the instant case there is no bar of Article 94 of the Basic Democracy Orders, 1959 and section 127 of the Municipal Administration Ordinance. In view of what has been considered above we find no reason to interfere with the order of the High Court convicting the appellant Khurshed Alam Khan for abetment of the offence of contempt of court and sentencing him therefor.
In the result his appeal is dismissed.
Ed.
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