1. This petition arises out of a reference made by the Additional Chief Presidency Magistrate, 3rd Court, Esplanade, Bombay. This petition is also an offshoot of what is known as the Vikhroli riot case. Another petition asking the High Court to take action in contempt against some other respondents was disposed of by us by upholding a technical objection to the maintainability of that application. In this application also another technical objection is raised by respondents who made speeches which are styled as amounting to contempt of Court.
2. In order to understand the immunity which is being claimed under Sub-section (2) of Section 3 of the Contempt of Courts Act, 1971 (Act 70 of 1971), (which will be hereafter referred to as the 'Act'), the facts may be very briefly noted. After a riot took place in Vikhroli on September 2, 1972 in what is known as the creek site Colony of the Godrej and Boyee Co. Ltd., several persona came to be arrested on suspicion of being involved in the crime. They were produced before the Presidency Magistrate on September 4, 1972 and police custody remands were obtained, A large number of them applied for bail but the bail application was rejected in respect of 19 persons by September 20, 1972. Some of the accused persons whose bails were rejected are Dr. Datta Samant, Dina Bama Patil, Fredrik Parera, Anant Desai and Krishna Ramchandra Joshi. Some of these persons seem to be labour leaders. On September 26, 1972, a Samiti called 'The Kamgar Aikya Vardhak Samiti' was formed which included amongst its members present respondents Nos. 1 and 2 namely, Yardi and Chavan. Mr. Yardi happens to be the General Secretary of the Godrej and Boyce Workers Union. This Samiti got printed certain leaflets and one such is produced at exh. A along with the present petition. After getting them printed by about September 28, 1972 permission was sought from the police for the use of loud speaker at a meeting. That permission was granted and a meeting was held in Tagore Nagar, Vikhroli in the evening of October 1, 1972. In this meeting not only those leaflets were distributed but many speeches were made by several speakers. Both the present respondents were speakers in that meeting.
3. That meeting was attended by Sub-Inspector P.G. Sawant, Head Constable No. 6030/K and a steno reporter Shri R.C. Shrivastava, all attached to the Special Branch I (Labour Branch). It is alleged that Mr. Shrivastava is an efficient stenographer whose mother tongue is Hindi. He has been performing this job for the last twenty-three years which has added to his experience and competency. The speeches by the two respondents were delivered in Hindi and they were verbatim taken down by Shri Shrivastava in shorthand. He then transcribed them into Devnagari script and submitted the full text to the superior officer. As it was found that these speeches tend to interfere or tend to prejudice the course of criminal justice relating to the case against the arrested persons, the Assistant Commissioner of Police Shri P.L. Mokashi, 'G' Division, filed tin application before the Additional Chief Presidency Magistrate, 19th Court, Esplanade, Bombay, on October 18, 1972.
4. In this application Mr. Mokashi reproduced some relevant portions of the speeches of the two respondents and also attached the text of those speeches with English translation to his petition. Having referred to the above mentioned history of the riot case and having pointed out the objectionable portion of the speeches, Mr. Mokashi alleged that these speeches are in the nature of contempt of Court and action seems to be necessary against the respondents.
5. After receiving such an application, the learned Magistrate issued show cause notices. In response, both the respondents filed their say on affidavits. There is some similarity in the replies given by both the respondents. Both have alleged that a part of their speeches is not faithfully reproduced but what they said was something different and they have quoted their own version of their speeches. They have then emphatically declared their full faith and confidence in Courts and the respect they hold for Courts of law. They also pointed out that they never had the least mind to cause any contempt. However, they assert that what they stated in their speeches does not amount in law or fact to a contempt of Court. Having generally pointed out in this manner it is respondent No. 1 Shri Yardi alone who has added in the last paragraph a recital which is not to be found in the reply affidavit of Shri Chavan. Shri Yardi says that he believed bona fide that what he said was not, a contempt of Court. If, however, unfortunately the Court comes to a contrary conclusion, he offered an unconditional apology for having made that speech.
6. A counter affidavit came to be filed by Shri Shrivastava asserting that he had faithfully recorded every word in shorthand and the transcript in Hindi is a correct rendering of the speeches delivered by the respondents. After the record was so complete the learned Magistrate, we are told, heard long arguments on either side. It appears that the result on the mind of the learned Magistrate was in the first instance that the version of the speeches given by Shri Shrivastava appeared to be correct. Shri Shrivastava had no reason to make an incorrect record of speeches delivered by the respondents. The second impression that the learned Magistrate formed was that prima facie there appears to be a case for the investigation of the High Court regarding the commission of the crime of contempt of Court. Having come to that conclusion instead of writing a reasoned order and forward the whole record with a formal letter, to the Registrar, he has merely written a letter to the Registrar in which in a very cryptic manner he indicates what he felt about the record. He does, however, say that this is a case for the investigation of this Court for taking action if considered necessary under the Contempt of Courts Act. Rule was granted by this Court on February 8, 1973. When the rule came up for hearing yesterday Shri B.A. Desai, the learned Counsel for respondent No. 2, raised a preliminary objection.
7. The objection, briefly stated, is this: Assuming for the time being without admitting it that the speeches delivered may be of a type which might fall in some part of the definition of the criminal contempt. However, these speeches were delivered on October 1, 1972 when the state of investigation regarding the Vikhroli riot case was that accused persons were merely arrested and recording and collecting of evidence was going on. The investigating officer had not yet prepared a challan or a charge-sheet much less had he filed it in Court. These are therefore speeches made long before the charge-sheet came to be filed in this case. Publishing something where by words spoken or written or by signs etc. within a period when investigation may be in progress but charge-sheet or challan were not yet filed is a period during which there seems to be complete immunity to a citizen if he publishes material which otherwise would become contempt of Court under the definition. Reliance is placed upon Sub-section (2) of Section 3 of the Act for this purpose. He therefore argued that it should be first decided whether the speeches made by the respondents (assuming that they are otherwise objectionable) are such that due to the provisions of Sub-section (2) of Section 3 of the Act, they shall not be deemed to constitute contempt of Court as no criminal proceeding was pending at that time as laid down by the Explanation in Section 3. He further argued that if his submission is found acceptable, on this ground alone this Court will not take any cognizance of the speeches made and will drop the proceedings.
8. The present Act came into force on December 24, 1971. As compared to the old Act of 1952 this is a much more exhaustive piece of legislation. The very preamble of this Act says that this is an Act to define and limit the powers of certain Courts in punishing contempts of Courts and to regulate their procedure in relation thereto. With this pronounced object incorporated in the preamble an exhaustive piece of legislation has been undertaken by the Parliament. Contempt of Court which was a well known offence for a long time has now been defined. Section 2, Clause (a) says that 'contempt of court' means civil contempt or criminal contempt. Clause (i) defines 'civil' and Clause (c) defines 'criminal' contempt. The definition of 'criminal contempt' is as follows:
criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which--
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
9. Now the contempt could be committed either by publication whereby words spoken or written, or by signs, or by visible representations, or otherwise of any matter or the doing of any other act whatsoever which would fall under any of the three categories described in Clauses (i) to (iii) included in that definition. In a larger sense in relation to a criminal contempt the Courts and Judges who dispense criminal justice, the investigation of crimes and taking further steps by filing charge-sheet and conducting cases in the Court for bringing the offenders to book and all other incidental matters connected with the concept of justice would form part of administration of justice. However, the Legislature has separated the Courts in respect of which it is laid down that doing something which will scandalise or will tend to scandalise, or will lower or will tend to lower the -authority of any Court amounts to contempt. By Clause (ii) causing prejudice or interfering or tending to interfere with, the due course of any judicial proceeding is a second category of action amounting to criminal contempt. These are only examples in which an interference in the justice could be made or justice otherwise thwarted. However, there may be many ways thought of interfering of tending to interfere with the administration of justice. Clause (iii) therefore says that interference or obstruction in the administration of justice in any other manner whatsoever would still fall under the definition of criminal contempt.
10. What we are particularly called upon to interpret in this case is the real meaning and implication of Section 3 of the Act. That section is as follows:
3. Innocent publication and distribution of matter not contempt. (1) A person shall not be guilty of contempt of court on the ground that he has published (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at the time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending,
(2) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, the publication of any such matter as is mentioned in Sub-section (1) in connection with any civil or criminal proceeding which is not pending at the time of publication shall not be deemed to constitute contempt of court.
(3) A person shall not be guilty of contempt of court on the ground that he has distributed a publication containing any such matter as is mentioned in Sub-section (1), if at the time of distribution he had no reasonable grounds for believing that it contained or was likely to contain any such matter as aforesaid;
Provided that this sub-section shall not apply in respect of the distribution of--
(i) any publication which is a book or paper printed or published otherwise than in conformity with the rules contained in Section 3 of the Press and Registration of Books Act, 1867 (25 of 1867);
(ii) any publication which is a newspaper published otherwise than in conformity with the rules contained in Section 5 of the said Act,
Explanation.--For the purposes of this section, a judicial proceeding--
(a) is said to be pending--
(A) in the case of a civil proceeding, when it is instituted by the filing of a plaint or otherwise,
(B) in the case of a criminal proceeding under the Code of Criminal Procedure, 1898 (5 of 1898), or any other law--
(i) where it relates to the commission of an offence, when the charge-sheet or challan is filed, or when the court issues summons or warrant, as the case may be, against the accused, and
(ii) in any other case, when the court takes cognizance of the matter to which the proceeding relates, and in the case of a civil or criminal proceeding, shall be deemed to continue to be pending until it is heard and finally decided, that is to say, in a case where an appeal or revision is competent, until the appeal or revision is heard and finally decided or, where no appeal or revision is preferred, until the period of limitation prescribed for such appeal or revision has expired;
(b) which has been heard and finally decided shall not be deemed to be pending merely by reason of the fact that proceedings for the execution of the decree, order or sentence passed therein are pending.
11. This provision appears to be a novel one. The very title to that section is 'Innocent publication and distribution of matter not contempt'. This section conceives for the first time that there can be a publication and distribution of a matter spoken or written which could be innocent or could be deemed not to be contempt. Sub-section (1) of Section 3 quoted above, shows that immunity attaches to certain statements or certain matter which may interfere or tend to interfere or obstruct or tend to obstruct the course of justice in connection with any civil or criminal proceedings pending at the time of the publication. However, if the persons so publishing had at the time of its publication no reasonable grounds for believing that the proceeding was pending the publication is described by this section as 'innocent'. So far as this sub-section is concerned, it presents not much difficulty in understanding it, It does not seem to be necessary to go deep into the question as to when a civil or criminal proceeding shall be deemed to be pending. Howsoever one may construe the real meaning of a 'pendency of a proceeding' the immunity that is available under this section depends upon the subjective state of mind of not knowing of pendency and the objective demonstration by the person concerned that he had no reasonable grounds for believing that any such proceeding was pending.
12. Sub-section (2) is rather involved in its construction and this sub-section makes it further clear that, when as a matter of fact a proceeding is 'not pending' publication of any matter which is otherwise contempt and which has already been described in Sub-section (7) of Section 3, is still not to be deemed to constitute contempt of Court. In broad manner, therefore, this sub-section lays down that the publication of matter which might otherwise fall within the clutches of the definition of contempt of Court, is still granted a certain exemption from being so styled if the proceeding was not pending at the time of its publication.
13. This naturally takes us to the consideration as to when a proceeding could be deemed to be pending. So far as this case is concerned we are only called upon to decide when a criminal proceeding could be deemed to be pending as the offence alleged is a criminal contempt of Court. Since this is an Act, as we have pointed out earlier, which defines and limits the powers of the Court and is also fairly exhaustive one would naturally look forward to the Legislature defining the concept of a matter being deemed pending. So far as criminal proceedings are concerned, it was a well-established proposition on the strength of several judicial pronouncements that since a person is arrested on the suspicion of having committed the crime, the pendency of the criminal proceeding begins immediately after the production of an accused person within twenty-four hours of his arrest before the Magistrate for remand. From that point onwards the Magistrate is as if having a general supervision over the investigation. However, when Legislature proceeds to define the concept of when a criminal proceeding shall be deemed to be pending the statutory provision will have to prevail against the prior existing concept thereof based upon judicial pronouncements. From that point of view one has to look at the Explanation to Section 3 which is quoted above.
14. In this Explanation the first thing that is incorporated is that this Explanation is for the purpose of this section i.e. Section 3. The immunity under Sub-sections (1) and (2) is only under Section 3 and, therefore, the definition of what is a pending judicial proceeding incorporated in the Explanation thereof, necessarily governs only the provisions of Section 3. In the case of criminal proceeding a judicial proceeding is said to be pending when the stage concerned falls under either of the Sub-clause (t) or (ii) of el. (B) of el. (a) of the Explanation. So far as this case is concerned, we are concerned with a criminal proceeding which is one under the Code of Criminal Procedure. Investigation relating to the Vikhroli riot case was undoubtedly conducted under Chapter XIV of the Code of Criminal Procedure. In respect of such a case where the commission of an offence is alleged it would be the filing of the charge-sheet or a challan that would mark the beginning of the pendency. There is no difficulty in pointing out the fact that once this pendency begins it ends only with the final decision of the ultimate remedy either by way of appeal or revision is disposed of and where such remedies are not being resorted to the period of limitation thereof is over. The terminal point does not seem to be in dispute and may not present any serious difficulty in understanding. So far as the starting point of a criminal proceeding to which the Code of Criminal Procedure is applicable and in which the commission of an offence is alleged, it would undoubtedly be the date and time of filing the charge-sheet or challan. In other words the Legislature seems to have departed by express provision from the prior concept of the pendency of a criminal proceeding which was in the field for several years and which was continuously upheld by judicial precedents. That starting point of the criminal proceeding as we have pointed out earlier was when a criminal proceeding was filed. Ordinarily, the arrest of a person on suspicion for being involved in a crime marks the beginning of the pendency. To say or do anything which will prejudice or otherwise interfere either with the investigation or with the orders that the Court might pass from time to time undoubtedly amounted to criminal contempt of Court as was being widely understood. When a definition of the beginning of pendency is so incorporated by the Legislature in the statute the implication of this definition will tell us what is being conceived of by the Legislature as a period when criminal proceeding is considered 'not pending'. If something is published which otherwise might fall under the definition of contempt of Court under Section 2, because it tends to interfere or obstruct the course of justice, it will not be deemed to be so because it is published at a time when a criminal proceeding was not pending as defined by the provisions of Section 3.
15. So far as the provisions of Section 3 are concerned, one important provision contained in the opening clause of Sub-section (2) deserves a special mention. That clause is a non-obstante clause and says, 'Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force,...' Now, the immunity granted under Sub-section (2) of Section 3 by the Legislature for the publication of certain material at a time when a criminal proceeding is not pending is made available to a citizen notwithstanding anything to the contrary contained in the Act or any other law for the time in. force. On a plain reading of the provision, therefore, it appears that whatever may be the definition of civil and criminal contempt contained in Section 2 of the Act, the immunity granted under Sub-section (2) of Section 3, overrides in its entirety all the provisions of this Act and the provisions of contempt contained in any other law for the time being in force. In other words, the immunity in Sub-section (2) of Section 3 is absolute if it could be shown that a person falls within the conditions prescribed by that sub-section. What these conditions therefore are and whether a proceeding in the light of which we are considering could be deemed to be not pending on October 1, 1972, is therefore the main question to be decided in this case.
16. The learned Counsel for the petitioner Shri Karl Khandalawala argued that the above interpretation of Section 3 might look possible on a superficial reading of that section. However, a closer examination of the provision will show that this was not supposed to be the departure intended by the Legislature from the previous history, of the law of contempt of Court. He, therefore, invited our pointed attention to the definition of contempt and more particularly 'criminal contempt' contained in Clause (c) of Section 2. All kinds of contempts whether arising out of civil or criminal proceedings were generally styled formerly as contempt of Court. That it continues to be so even under the present Act, but this Act describes in detail the two types of contempts namely civil and criminal which together constitute the broader concept of contempt of Court. He says that the question of pendency of any criminal proceeding is irrelevant at any rate so far as Sub-clause (i) of Clause (c) of Section 2 is concerned. That clause deals with a contempt where the Court is either scandalised or something is shown which tends to Scandalise or lowers or tends to lower the authority of the Court. No period of immunity at any time seems to be available. The Legislature according to Shri Khandalawala has undoubtedly laid down so far as scandalising the Courts and lowering their authority is concerned that it shall never be done. No occasion could be a good occasion either for scandalising the Courts or to attempt lowering or tend to lower their authority. There is no doubt that that appears1 to be a clear position under the Act.
17. Having carved out one topic relating to the canalisation of the Courts themselves the remaining administration of justice is further sub-divided by the Legislature in two parts for the purpose of definition. A judicial proceeding and a due course of the judicial proceeding is referred to in Sub-clause (ii) of el. (c) of Section 2. Trying to prejudice or interfere or tend to interfere with the due course of any judicial proceeding is described independently in this case as committing criminal contempt. So far as Section 3 is concerned, the exception or the exemption or the immunity only relate to a 'not pending criminal proceeding.' Though that section refers to both civil and criminal proceedings our reference in this judgment is confined to criminal proceedings because we are dealing with the criminal proceedings. Apart from trying to influence or interfere with the judicial proceeding there are and can be many other ways where interference or obstruction in the administration of justice might be attempted. That topic has been separately defined under Sub-clause (ii) of Clause (c) of Section 2. The immunity which has been incorporated in Section 3 is limited to a publication by words spoken or written or by signs or by visible representations or otherwise. Such a publication can include any matter which interferes or tends to interfere with or obstructs or tends to obstruct 'the course of justice' in connection with the criminal proceedings pending or not pending at the time of the publication. When they are actually pending a person who wants to take advantage of this exception, must prove that he falls within the provisions of Sub-section (1) of Section 3 described as 'innocent publication'. However, if the proceedings are not pending immunity can be attached only to a publication as laid down in Sub-section (1) of Section 3 of a matter, the nature of which is also described in Sub-section (1).
18. Shri Khandalawala appearing for the petitioner tried to tell us that different expressions are used by the Legislature in Sections 2 and 3 and also the several parts of Section 3 itself. His principal argument is that the immunity so called defined in Sub-sections (1) and (2) of Section 3 and more particularly in sub-8. (2) of Section 3 which applies to the facts of the present case, is confined, in the language of the section itself, to any published matter which obstructs or tends to obstruct or interferes or tends to interfere with any 'criminal proceeding not pending' at the time of the publication. It also attaches to a civil proceeding pending at the time of the publication where civil contempt is alleged. The expression used in Sub-sections (1) and (2) is 'any civil or criminal proceeding pending'. However when we go to the Explanation what we find is that the expression which is sought to be defined is 'a judicial proceeding'. This expression 'judicial proceeding' according to him also appears in the definition Sub-clause (w) of Clause (c) of Section 2. Mr. Khandalawala argued that at first sight one may feel that a judicial proceeding is broader concept and it includes within its fold a civil and a criminal proceeding. However, from the artificial manner in which a pending judicial proceeding has been defined by the Legislature in the Explanation to Section 3, he argues that a criminal proceeding becomes a pending judicial proceeding for the purpose of Section 3 only when in a case like the present one a charge-sheet or challan is filed in Court. According to him immediately after an accused person is arrested and produced before the Magistrate for a remand, the Magistrate begins to act judicially in granting or not granting remand or making it a judicial custody or a police custody remand. In a given case inspite of the opposition of the police officer the Magistrate may immediately grant bail. Any of these orders are judicial orders and undoubtedly a judicial proceeding has begun. That broader meaning and the common understanding of judicial proceeding is not to be confused according to him with the narrower meaning given to it by the Legislature by the Explanation. If that is so, he says that the exemption granted or the exception carved out in Sub-section (2) of Section 3 may apply when a criminal proceeding is not so pending. However, even though in the strict meaning of that expression as defined by the Explanation to Section 3, there may not be a criminal proceeding pending, there would still be undoubtedly a judicial proceeding pending ever since the date and time of arrest. He, therefore, says that the exemption does not operate ever since the time the arrest has been made. The only answer that can be given to this approach is that it renders Section 3 ineffective or nugatory. The result which Mr. Khandalawala desires would have ordinarily followed under the accepted concept of a pending judicial proceeding only if Section 3 was not there at all. 'What then is the function to be performed by Section 3? It is a section which seeks to override all the provisions of the statute for the purpose of a certain type of publication at a particular time by describing that time when a criminal proceeding is 'not pending'. It is true that one kind of expression is used in the Explanation clause and other kind of expression has been used in Sub-sections (1) and (2) of Section 3. However, instances are not uncommon where the draftsman has used different expressions in different parts of the statute or even the different portions of the same section to convey the same meaning. The judicial proceeding can consist either of civil or criminal proceeding and one might choose the compact expression 'judicial proceeding' to describe both together but another might choose the composite expression or in fact description as 'civil and criminal proceedings'. The meaning conveyed is the same and it makes no difference whether the one or the other expression is used.
19. Moreover, as we find from the Explanation to Section 3 which we have fully reproduced above that the draftsman appears to be anxious to include several ideas in two Sub-clauses (a) and (b) of this Explanation. Sub-clause (a) is devoted to define the entire period of pendency of either civil or criminal proceeding jointly described as judicial proceeding from the starting point up to the terminal point. Clause (b) is in the nature of further explanation to point out that after the final termination of the litigation, civil or criminal, as mentioned earlier, simply because in a civil matter there may be execution of a decree or order or in a criminal matter there may be undergoing of the sentence by the accused, neither the civil nor the criminal matter is to be deemed to be pending. In an attempt to put all these things together and in a further attempt to define pending civil and criminal proceedings by a further sub-division of the original Clause (a), the draftsman was required to find out different words to describe these two different proceedings jointly and severally and hence the choice of words. We have, however, no doubt that the approach suggested by Shri Khandalawala will lead to a situation where there will be no occasion or no point of time when the immunity conceived of by Section 3 could be made available to the citizen. In other words, the construction proposed by Shri Khandalawala would defeat the very purpose of the legislation. When such situation arises it is well settled that Courts will interpret generally in favour of the statute being valid and will not render the statute nugatory.
20. Yet another argument of Shri Khandalawala was that assuming that the Court was going to hold against his approach and the situation on October 1, 1972 in relation to the Vikhroli riot case could be described as 'a criminal proceeding not pending' this Court should consider whether all that has been described as a contempt in Sub-clause (ii) of Clause (c) of Section 2, is saved at all. He brought to our notice the distinctive language of Sub-clause (ii) of Clause (c) of Section 2. In that provision the Legislature says that one who prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding is committing a criminal contempt. Only two expressions are chosen namely, 'prejudice' and 'interference'. Looking to the provisions of Sub-section (1) of Section 3, he says that the so-called exemption or immunity attaches to the publication of any matter which either interferes or tends to interfere or obstructs or tends to obstruct the course of justice. According to him, therefore, only interference or obstruction or tending to do either of these two acts is alone saved by Section 3 but not what he describes as contempt by causing 'prejudice'.
21. It does appear that somehow in this Act the same language and same wording has not been carried from section to section to convey the same meaning, but different expressions are used. It would undoubtedly have been much, better if a set language or terminology was adopted throughout. That by itself however does not present a serious difficulty. What is intended to be saved is a publication of any matter described in Section 3 and if that matter tends to interfere or interferes or obstructs or tends to obstruct 'the course of justice' in connection with any civil or criminal proceeding, the publication which may otherwise be contempt is not to be deemed to constitute a contempt. A fiction of law is created. The expression 'course of justice' is a much wider expression than 'due course of judicial proceeding'. However, the course of justice is again restricted to be in connection with a civil or criminal pending proceeding. A peculiar negative language is used in Sub-section (2) of Section 3 to describe a situation where a criminal or civil proceeding is 'not pending'. By looking to the Explanation and the language used in Sub-sections (1) and (2) of Section 3, it may be rationally construed to mean that the entire course of justice in connection with a certain proceeding which is going to be filed in the future in the Court either as civil or criminal, is sought to be saved. However, the saving is limited to the publication of a matter described in Sub-section (1) of Section 3. It is also true that only two words are used namely, 'interference' and 'obstruction'. The word 'prejudice' has not been specifically used. We have however no doubt that causing prejudice is nothing but a sort of interference in the course of justice. In the context in which an exemption or immunity is being awarded by the Legislature, it must be held that prejudicing or attempting to prejudice the course of justice is covered by the expression 'tends to interfere or interfere'. If such a construction is not put upon the language of Section 3, then again it will mean that 'interference or obstruction' which may apparently appear to be more serious acts are given immunity but a writing which merely causes prejudice is not saved by the provisions of Section 3. That might be a case of extending immunity by one hand and taking it away by the other. In order that the provisions of Section 3 must be effectively operative and available to a citizen, every kind of attempt whether by prejudice or otherwise to either interfere with or obstruct the course of justice in connection with civil or criminal proceeding pending must be deemed to be covered by this provision. Otherwise the right or exemption under Section 3 will prove illusory.
22. We may point out that the Contempt of Courts Act is a penal statute and any other construction is likely to lead to the imposition of penalty because the matter is merely described as causing prejudice but is neither interfering or obstructing with the course of justice. In the matter of interpreting a penal provision it is well known that it must be strictly construed so far as penal consequences are concerned. In Tuck & Sons v. Priester (1887) 19 Q.B.D. 629, Lord Esher observed as follows (p. 638):.If there is a reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the Settled rule for the construction of penal sections.
23. In the circumstances we have no doubt that whatever allegations are made by the two respondents in respect of 'not pending criminal proceedings' as defined by Section 3 of the Act, must be deemed to be not to constitute contempt of Court as defined by Section 2(c)(ii).
24. We have gone through the speeches alleged to have been made by the two respondents. The main substance of attack in both the speeches is against investigation and the criminal case which could be filed in due course by challan or charge-sheet by the police and most of the matter in those speeches falls under the definition, Sub-clause (ii) of Clause (c) of Section 2. To that extent of course there is immunity under the provisions of Sub-section (2) of Section 3. Even then therefore these utterances might have been considered as contempt before the passing of the present Act but in view of the fact that no charge-sheet was yet filed those utterances must be deemed to be not a contempt of Court.
25. However, while examining the report of the learned Additional Chief Presidency Magistrate we find that he thinks that a portion of the speech of respondent No. 2 Shri Chavan, appears to lower the authority of the criminal Court. When that portion was referred to during the discussion before us respondent No. 2's advocate told us that his client never wanted to scandalise the authority of the Court in any manner as he firmly believes in an independent judiciary. If, however, a portion of it creates an impression that he is attacking the authority of the criminal Courts he is offering unconditional apology. After saying so a statement in writing containing unconditional apology by respondent No. 2 has been tendered before us. We have gone through the affidavits in general by respondents Nos. 1 and 2. We got the impression, that both of them wanted to make a test case relating to their right of freedom of speech as now available during a certain period under Section 3 of the Act. In the enthusiasm of making a public speech it appears that respondent No. 2 has unwittingly said something which undoubtedly had the effect showing disrespect to the Court. However, as now a sincere and bona fide apology is offered we accept it and we do not think that any further action is called for.
26. Before we finally dispose of this rule, we must now point out that in Criminal Application No. 234 of 1973 decided by us, we have now held that a contempt of a subordinate Court is cognizable by this Court only in two ways as laid down by Sub-section (2) of Section 15. There must either be a reference by the' subordinate Court or there must be a motion by the Advocate-General. This Court cannot suo motu initiate action in regard to the contempt of a subordinate Court. This being so, a question now arises regarding the manner in which reference must be made by the subordinate Courts. Since we find that in this case no speaking order as such was written by the Magistrate but he merely sent a covering letter addressed to the Registrar in which his views about two speeches in a cryptic manner have been incorporated, we asked the learned Counsel for the petitioner whether that was the proper method to make a reference. We were told that while references were being made by the subordinate Courts under the former Act, it was a fairly wide practice that the material was collected and genera] observation was made that a prima facie ease exists for enquiry by the High Court. Though some subordinate Courts may have written reasoned orders that was not the unanimous method adopted. 'We now find that the present Contempt of Courts Act has an entirely different approach so far as the contempts of subordinate Courts are concerned. The expression used by the Legislature in Sub-section (2) of Section 15 is that the subordinate Court has to make a 'reference to the High Court'. A reference in the criminal proceedings is a well-known expression. Under the Criminal Procedure Code whenever Sessions Judges make reference to this Court, they write a speaking order. The Sessions Judges and District Magistrates in the cases of references arising out of revision applications have no right to decide any matter but they are entitled to express their views which are supported by the material available to them. It is because of a prima facie conclusion arrived by them that they are inclined to make a reference to the High Court. We believe that the reference now contemplated by Sub-section (2) of Section 15 must be of that type. It may be remembered that in a given case when the Magistrate is moved to take action by a party he might ultimately come to the conclusion that there is no contempt, and that reference need not be made to the High Court. While doing so he would be passing a judicial order, and, therefore, it must be a speaking order giving reasons. In the same manner if he comes to the conclusion that there is some material which prima facie requires to be referred to the High Court because again prima facie contempt of Court appears to have been committed, he must write a concise reasoned order indicating why he thinks the contempt appears to have been committed.
27. We may also point out that besides the subordinate Courts there is another authority contemplated by Sub-section (2) of Section 15 who can make a motion to this Court. The language used by the Legislature is different in relation to a subordinate Court and in relation to the Advocate-General. Whereas the subordinate Court has to make a reference to the High Court, the Advocate-General has to make a motion. How motions are made in this Court is again a well-known concept. A motion again consists the allegations of facts and the view of the motion maker that in relation to these facts some offence appears to have been committed of which this Court should take cognizance and take further action. We, therefore, think that even the motion may have to contain sufficient material to indicate why the Advocate-General is inclined to move this Court. This view of ours seems to get considerable support from the provisions of Section 17 dealing with the procedure after cognizance. Sub-section (1) contemplates the issuance of a notice. Sub-section (2) lays down that the notice shall be accompanied, in the case of proceedings commenced on a motion, by a copy of the motion as also copies of the affidavits, if any, on which such motion is founded; and in the ease of proceedings commenced on a reference by a subordinate Court, by a copy of the reference, It is, therefore, clear that in the case of a reference by the subordinate Court along with the notice issued by this Court a copy of the reference has to be served upon the party. It is not difficult to imagine that the Legislature is aware that when the Magistrate entertains an application by someone or decides himself to take action in respect of something of which he is aware, the first thing he will do is to issue a show cause notice to the alleged contemner. The contemner will be informed of the contents of the application or the Magistrate will himself furnish him material on which he is called upon to reply. The allegations are, therefore, known to the party while the Magistrate is dealing with the matter. The alleged contemner has a right to file an affidavit-in-reply. After these things are done and after arguments, if any, by the parties are heard, the Magistrate makes a reference to this Court. The reasons why the Magistrate makes the reference are the only part of the proceedings which the party concerned is not aware of. The notice under Section 17 requires that a copy of that reference containing the reasons of the Magistrate for a prima facie conclusion must be made known to the party concerned. He is thus in a position to defend himself in this Court by filing an additional affidavit as provided 'by the further provisions of the Act. It appears to us that as yet there is no sufficient acquaintance with the provisions of this Act by the litigants and the subordinate Courts. Hence we entertain the present reference though a mere covering letter was written by the Magistrate. However, any reference in the real sense under Section 15(2), must be of the type indicated above.
28. The conclusion, therefore, to which we come is that only a portion of the speech of respondent No. 2 falls within the provisions of Sub-clause (i) of Clause (c) of Section 2 and to that extent we have accepted his apology and no action is called for. The rest of the speeches of both the respondents fall squarely within the provisions of Section 3 and they must be deemed to be not constituting contempt of Court for the purpose of this Act.
29. Subject to the acceptance by us of the apology of respondent No. 2, the rule stands discharged. There will be no order as to costs.