1. This is an appln. under Section 3, Contempt of Courts Act, by an accused person for taking suitable action against the non-appct, for alleged contempt of Ct.
2. The non-appct. Shri Karkare is the Editor of a weekly newspaper called 'New Leader', while the appct. is the Managing Editor of a daily newspaper called 'The Nagpur Times'. There appeared, according to the non-appct. in the issue of Nagpur Times of 19-2-1950 an article entitled 'Ethics of Shoe-beating'. Alleging that this article contained matter which, besides being 'grossly insulting to him' and defamatory, was an 'open incitement to the unintelligent and easily excitable' element in society to use violence against him, he preferred a complaint against the appct. in the Ct. of a Mag. First Class, Nagpur, under Sections 500 and 504, I. P. Code on 20-2-1960.
3. In the issue of the New Leader of 22-2-1950 there appeared an open letter to the Directors of 'Nawa Samaj Ltd.,' which company owns the 'Nagpur Times'. That letter invites them, in substance, to go through the article which appeared in the Nagpur Times on 19-2-1950, find out and ascertain how far their association with the paper is compatible with their 'own conception of standards of public controversy or maintenance of some kind of standard of journalism' and suggests that they should either remove Shri Sheorey from the position which he holds or 'resign or wind up' the concern.
4. Shri Sheorey, thereafter, made an appln. in the Ct. of the Mag. before whom his case is pending for action under Section 3, Contempt of Courts Act. The learned, Mag, however, rejected the appln. on the ground that he had no jurisdiction to entertain it. Thereupon, Shri Sheorey has come up to this Ct. The grounds on which he wants this Ct. to take action are as follows:
(a) It proceeds on the basis that the petnr. (Accused No. 1) Managing Editor of the 'Nagpur Times' is guilty of the charges which are the subject matter of the pending case. All the important issues that are sub-judice have been taken for granted as proved and the Directors are appealed to penalise and punish the petnr. (Accused 1).
(b) It is nothing but an attempt to bring under (sic) unjustified and illegal pressure on the petnr. (Accused No. 1) so that the petnr. (Accused No. 1) may not be in a position to defend himself properly.
(c) The said publication in the 'New Leader' makes libellous statements about the petnr. (Accused No. 1.).
(d) The said publication tends to prejudice the mind of the public as well as of all concerned against the petnr. (Accused No. 1) before the case is finally heard and disposed of.
(e) The said publication tends to prejudice the course of justice and is calculated to defeat the very object of this case.
5. The replication made by the non-appct. tends to be repetitious and it contains some irrelevant matter. Fortunately, it is not necessary to set out which parts of it ought to be eschewed on account of their irrelevance because the learned Counsel for the non-appct. very properly confined himself to those only that have a direct bearing on the case before us.
6. According to him, the impugned article is written with restraint, that it does not attack the character of the appct., that the non-appct. was compelled to write it, not with a view to obtain any redress from the Directors but for the protection of his life and honour and that therefore is did not amount to contempt of Ct. According to the counsel the intention of the writer of the article must be taken into consideration while deciding whether the article ought to be regarded as in contempt.
7. I am satisfied that the tone and the language of the article is restrained and also that no aspersions are cast in that article on the character of the appct. But it quite clearly refers to a matter pending in a Ct. of law, proceeds on the assumption that what is alleged in the complaint is true and invites, nay urges, the Directors of the Nawa Samaj, who are the employers of the appct., to proceed on that basis. I shall leave aside, for the moment, the argument that the article having been written by the non-appct. for protecting his life and honour cannot amount to a contempt of Ob. What is clear is that there is an assumption concerning the guilt of the appct. in regard to offences which are still sub judice. It is settled law that this amounts to contempt of Ct.
8. The reason for so holding is aptly given in the judgment of Wills J. in Bex v. Parke (1903) 2 K. B. 432 : 72 L.J. K. B. 839:
The reason why the publication of article lite those with which we have to deal is treated as a contempt of Court is because their tendency, and sometimes their object, is to deprive the Court of the power of doing that which is the end for which it exists - namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it. Their tendency is to reduce the Court, which. has to try the case to importance, so far as the effectual elimination of prejudice and prepossession is concerned. It is difficult to conceive an apter description of such conduct than is conveyed by the expression 'contempt of Court.' If it be once grasped that such is the nature of the offence, what possible difference can it make whether the person has been committed for trial or is going to be committed for trial?
9. This decision has been regarded as the leading case on contempt of Ct. for many years and has recently been followed in Ilex v, Davies (1945) 1 K. B. 435: 114 L.J. K. B. 417. The decisions in Ganesh Shanhar, In the matter of : AIR1929All81 ; Jnanendra v. Gopal A.I.R. 1933 Pat. 804: 12 Pat. 172 and Demibai Gengji v. Rowji : AIR1937Bom305 , also proceed on the same view as that taken by Wills J.
10. Now as regards the argument based on the ground that the intention of the non-appct. was only to protect his own interests. The learned Counsel states that the non-appet. did not intend that the appct. should not have a fair trial but as he feared that his life and honour were in danger and as he could obtain no protection from the police, his only course was to draw the attention of the appot.'s employers to the gravity of the situation created by the article published in the Nagpur Times. Now this move on the part of the non-appct. could have served the purpose he had in view is difficult to appreciate. Assuming, however, that by writing the article he could obtain some kind of relief or protection, the question is whether what is contempt would cease to be contempt.
11. Reliance is placed on behalf of the non-appct. on the decision in Ketra Moni Dasi v. Shamal Dhone 19 I. C. 539: 14 Cr. L.J. 267 Cal.. In that case, Imam J., purporting to follow the decision in Duncan v. Sparling (1894) 10 T. L. E. 353, observed:
Mr. Das appearing in support of the Rule has referred to several oases of authority that establish that comments on oases pending or allegations against parties to suits that are pending, if published, amount to contempt on the part of the offender. No one can deny the soundness of the Rule that has been enunciated on this subject by the enormous number of cases that the reports can furnish us. But it could not be right to lose sight of the intention by which a person giving publicity to a matter which is the subject of the charge of contempt is actuated. The case of Duncan v. Sparling (1894) 10 T. L, R. 353, in which two learned Juges Mathew and Cave JJ., expresssed their concurrent opinion, is a sufficient authority for the proposition that the intention of the person giving currency to a statement has to be considered.
12. Though Imam J. actually held that the impugned publication did not have the tendency to prejudice a fair trial, the observation made by him does support the contention of the non-applct. I would, however, point out that Duncan v. Sparling (1894) 10 T. L. E. 353 does not lay down that when an impugned publication does in fact tend to prejudice a fair trial, the intention of the alleged contemner is a relevant factor.
13. In Duncan v. Sparling (1894) 10 T.L.R. 353, a young woman sued for an injunction against the Secretary of a Club from giving effect to a resolution of the Club suspending her from membership until she apologized for using certain language in the Club. The rule under which the particular action was taken was referred to at the trial as being in these terms: 'No misconduct or bad language is permitted on the club premises.' As the language of this rule was very general, so the reporter thought, it might have been supposed by a reader of the newspaper in which the report appeared to mean something worse than had taken place. The reporter, therefore, took from the pltf's affidavit the terms in which she described the charge as having been a party to drinking wine out of her shoe and using certain language as to the club.
14. In the issue of the Westminster Gazette of 23-2-1894 there appeared the following para.:
A complicated matter is engaging the attention of the Court, a case of Duncan v. Sparling (1894) 10 T. L. R. 353. It seems that a young lady asks for an injunction to prevent the officers of the Democratic Club from expelling her from the club. The rule under which the young lady had been expelled was that no misconduct should be permitted on the club premises and it appears on the affidavits that the alleged misconduct was that she had allowed some gentlemen to drink wine out of her shoe and had used disrespectful language about the club.
15. A fuller but similar report appeared in 'The Times' of the 23rd February while a humorous article appeared in the 'Daily Telegraph.' The pltf. then moved the Ct. for taking action against the reporter and the three newspapers for contempt. In argument the pltf.'s counsel contended that the report and the paras. complained of must tend to prejudice the pltf. and interfere with the course of justice and referred in particular to the para, which had appeared in the Daily Telegraph. Mathew J., who was one of the Judges hearing the case, queried: 'But what evidence is there of any intention to interfere with the course of justice?' Counsel urged that it would have that effect.
16. Dealing with the article in the Daily Telegraph, Mathew J. observed:
There were no comments, which could be fairly treated as a contempt of Court. There had been a report published of a matter before us, and then, without, so far as appears, any bias or improper motive, a light article was published, merely taking an amusing view of the case. There is not the smallest indication of any intention to prepossess or prejudice the minds of any persons in reference to the matter in dispute .... but it is to be understood that, treating the article as comment on a case in that position, it is not necessarily a contempt of Court. But even treating it as a comment on a case in this Court, there la no approach to anything like a contempt of Court.
17. He proceeded:
Than, as to the report in the Times, I give complete credit to the assurance of the able and accomplished reporter that his anxiety was to prevent an inference being drawn...unfavourable to the plaintiff....
And then said:
He did not produce a perfectly accurate report of what occurred in the Court and, therefore, although there is not in this case any more than the last an approach or anything like an approach to contempt of Court, we cannot deal with the case exactly as we have dealt with the former.
Accordingly, while dismissing the appln. the newspaper was not awarded its coats.
18. As to the Westminster Gazette the Judge said:.there was only a paragraph embodying the report, without anything approaching to a contempt of Court, and in this case, as in the case of the Daily Telegraph, we dismiss the application with costs.
19. Cave J. the other Judge who heard the case, observed:
It was impossible to read the articles on the report without seeing that there was nothing in the nature of contempt of Court either committed or intended.
20. I have dealt with this case at length because it is supposed to lay down a principle contrary to that laid down in numerous cases on the point. What I have quoted from the judgments of the two learned Judges who decided the case ought to suffice to show that they never laid down that the intention of the contemner is material even though a publication may tend to prepossess the minds of the public, the judge or the jury. What they have undoubtedly laid down is that a comment on a pending case made in a lighter vein will not be treated as contempt when such comment does not proceed from an improper motive- the comment itself being incapable of prejudicing a fair trial.
21. In T. B. Hawkins v. D. P. Mishra I. L. R. (1949) Nag. 640, it was observed by Hidayautllah J., apparently following the decisions in Bex v. Davies; Ex parte Delbert Evans (1945) 1 K. B. 435: 114 L.J. K. B. 417; Legal Bemembrancer v. Motilal Ghose 41 Cal. 173: A.I.R 1914 Cal. 69: 14 Cri. L.J. 321 ; Mrs. Annie Besant v. Govt. of Madras 39 Mad. 1085: A.I.R 1918 Mad. 1210: 18 Cri. L.J. 157 and Rex v. Hawken (1944) S D.L.R (Can) 116:
Thus, the Court has to see not only whether the comments interfere with the administration of justice but also whether they do so in a substantial way. I may say here again that the intention of the person making the comments is no more relevant than the Occasion on which they are made, A person who comments on a pending case acts at his own peril and must answer if the incriminating matter tends in a substantial way to interfere with the administration of justice at any stage.
I venture to qualify this by saying that the intention would be material only if the comment were intended to prejudice the fair trial (see Bex v. Parke (1903) 2 K. B. 432 : 72 L.J. K. B. 839 and Rex v. Davies (1945) I K B. 435 : 114 L.J.K.B. 417 - though the converse of this is not the law.
22. I have already expressed the view that the publication in question proceeds on the assumption of the guilt of the appct. and so amounts to contempt. The fact that the non-appct. made the publication with the intention of protecting his own interests is not relevant. The question then is whether any action ought to be taken.
23. In Hunt v. Clarke (1889) 58 L.J. Q, B. 490, it was laid down that the publication in a newspaper pending an action of any observations which in any way prejudices a party to the action is technically a contempt of Ct. but that the Ct. will not exercise its extraordinary power of committal if the offence complained of is of a slight or trivial nature. This decision was followed in Hawkins' case,. I. L. R. (1929) Nag. 640 and my lord the Acting Chief Justice was a party to it.
24. In Hunt's Case (1889) (58) L.J. Q.B.490, the impugned article ran as follows: 'to investors and -Others -In the list of the oases to be tried in the Queen's Bench Division by special juries immediately after the Easter holidays is the case' of William Henry Hunt v. Frederick and William Adams, which is expected to occupy the time of the Court for several days and to present features of great interest to investors. The sum of 1,800, with interest and dividends is claimed by the plaintiff from the defendant Clarke, on the ground of alleged misrepresentations in connection with the Gyrophone Top Patent, the Inventions Trust Association, Automatic Musical Instrument Company, Inventors' Mart, (Ltd.), and the Moldacot Royalties Trust, (Ltd.), Hunt further claims 500, against both defendants for alleged misrepresentation in connection with the business of the defendant. Adams, Mourners over the Moldacot fiasco are likely to hear a little inside history of the business.'
Quite clearly, the last sentence appears to assume the truth of the complaint.
25. Cotton L.J., one of the three Judges who heard the case, commented on this article:
Hare I must say I am not pleased with the way in which this matter is brought forward in the paper, because I think it would have been wiser and much better that this para, should not have appeared in the paper, I cannot agree with this that any mention in a newspaper of a cause about to be heard would of itself be a contempt, but here there are some statements which I regret.
and then proceeded to say:
But then comes this question as to whether, having regard to the facts of the case, there is such a contempt as will really justify the defendant here in applying to the Court for its interference in this way. Now, I have already expressed my opinion in the case of Plating Co. v. Farquharson (1889) 50 L.J. Ch, 406: 17 Oh. D. 49 as to committing for contempt, and I entirely adhere to what I there said .... I said these applications ought to be discouraged unless it was a serious case of contempt really calling for the interference of the Court in order to secure the due administration of justice .... I adhere to the view which I then expressed, and which still remains my opinion, and is the view which will guide me in dealing with such cases. My view was in substance this, that where the offence complained of is of a alight and trifling nature, and not likely to cause any substantial prejudice to the party in the conduct of the action or to the due administration of justice, the party ought not to apply, and it is mere waste of time to do so, and that it is not really a proceeding in order to have the case properly conducted and justice properly administered but that it is a mere waste of time to attempt to throw costs on the person who has done the act, where it is obvious there could not be any case calling upon the Court for committing, which is a moat serious matter to be done, and only to be done when the administration of justice really requires it.
26. He approved of the dictum of Mellish M. E. in The Republic of Costa Rica v. Erlanger (1877) 46 L.J. Ch. 375: 36 L. T. 332:
I say that a Judge should be most careful to see that the cause cannot be fairly prosecuted to a hearing unless this extreme mode of dealing with persons brought before him on accusations of contempt should be adopted.... I have always thought that, necessary though it be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, that is, if no other pertinent remedy can be found.
27. Applying and adopting these principles the learned Judge held that there was no interference or fear of interference with the due conduct of the action or any prejudice to the party applying for committal of the contemner. According to him, there was not merely a technical contempt but, according to the other Judge, Fry L.J., there was only a technical contempt as the article 'does tend to prejudice the minds of the public against the deft.' He was of the view that the appln. was 'of a somewhat trifling and trumpery character' that an ordinary intelligent man would not be influenced by the impugned article and that in point of fact that article was not likely to prejudice a fair trial of the cause. He, therefore, agreed with Cotton L.J. that the application be dismissed.
28. The third Judge. Lopes, L.J. agreed with Pry L.J. and also observed:
I only desire to add this, that I am of opinion that the reports in newspapers of pending oases in Court with comment upon those oases, are to be discouraged, and I think it is the duty of the Court, to exercise its summary jurisdiction if it is of opinion that any such reports or comments are calculated to prejudice a litigant in a trial then pending.
29. The view taken by Cotton L.J. was approved by Lord Russel C.J. in Bag v. Payne (1896) I Q.B. 577: 65 L.J. Q, B. 426 and also by Humphreys J. in Davies' case (1945) 1 K. B. 435: 114 L. J, K.B. 417. In each of these oases, though the article was found to be in contempt of Ct. no action was taken against the contemner because the learned Judges held that there had not been any such interference or any fear of interference, with the due conduct of the action or any such prejudice to a party as rendered it desirable that the Ct. should make any order.
30. I am of the view that in the present case there is no reasonable likelihood of the applicant being prejudiced in his trial by reason of the publication of the article. It is no doubt said on his behalf that the Directors may well be led to take their cue from the article and either dismiss the appct. from his position or withhold funds from him for his defence and so make it difficult for him to defend himself in the criminal proceedings launched against him by the non-appct. The Directors are men of the world and occupy prominent places in business. They are certainly men of at least ordinary intelligence and it would, in my view, be extremely unlikely that any of them would be led away into taking any action prejudicial to the interests of their employee merely upon the suggestion of his antagonist. There is thus no ground for taking action against the non-appct.
31. I am accordingly of the opinion that this appln. should be dismissed but, as the case is on the border-line, I would order costs to be borne as incurred. The costs of the paper book have to be recovered and I think the fairest course would be to ask each aide to pay up half.
32. Hemeon, Ag. C.J--I agree.