1. This petition under the Contempt of Courts Act was originally filed by Shri Ratnakar Jha, Public Prosecutor and President of the Municipal Committee, Durg, against Shri K. S. Agarwal, owner, editor, printer and publisher of 'Zindgi', a weekly paper, and Shri K. N. Jha, printer- co-publisher, and co-editor of the same paper. Shri Dwarka Prasad, brother of Shri K.S. Agarwal, was subsequently joined as a non-applicant as owner of the press and paper.
2. There had been, according to the petitioner, rivalry and ill-will between Shri K. S. Agarwal and himself for some years; and Shri K. N. Jha had sided with his employer Shri K. S. Agarwal. On the 1st May 1952 the paper contained a long article against the petitioner and his family; and on the 18th August 1852, prior to municipal elections, it published a conversation between two imaginary persons which was extremely disparaging to him. On the 28th September 1952 Shri K. S. Agarwal was attacked; and on the 3rd October 1952 the police registered a case under Section 325 of the Indian Penal Code against the petitioner who was arrested on the 9th October 1952 and enlarged on bail. On the 11th October 1952, Blitz, a Bombay paper, published an article which, according to the petitioner, scandalized him at Shri K, S. Agarwal's instance; and the Nagpur Times of the 14th October contained an article concerning the alleged attack on the 28th September 1952. The Diwali number of Naya Khoon also contained an article with regard to the incident.
3. The issue dated the 27th October 1952 of 'Zindgi' contained a letter from 'local correspondent Durg' which referred to the nefarious activities of the petitioner's son, the petitioner's attack on Shri K. S. Agarwal with a cane, threats by his supporters, tutoring of witnesses, and undue pressure on prosecution witnesses. This article contained in the middle a panel in which Shri K. S. Agarwal thanked those who had indicated their sympathy for him after the attack. On the 31st October 1952 the case against the petitioner under Section 325 of the Indian Penal Code was challaned, and on the 10th November 1952 the following matter appeared in the 'Zindgi':
A Public Prosecutor is a Government Servant'
To - The Editor,
'If the Government themselves start a case against Public Prosecutor, Government should remove that pleader from that post till the decision of the case because a Public Prosecutor is a Government Servant.
'The British Government had suspended the High Court Judge of Madras when a case under Section 304, Indian Penal Code was started against him. He was a European and he was challaned for the alleged offence of killing one Indian boy. When a Public Prosecutor has been challaned and he is not removed from the post of Public Prosecutor and is conducting cases against the accused persons there are many things which can arise in the mind of the Public. Our National Government and other parties who work for the good of people may solve this basic problem and take a step in the interest of justice.
'Challan of the Municipal President and Public Prosecutor Ratnakar Jha presented'.
'After enquiry the Durg Police presented challan of Ratnakar Jha Public Prosecutor and Municipal President of Durg in the Court of Shri Bisen Magistrate Second Class (for offence) under Section 325, Indian Penal Code. On the Dashahre day Shri Jha attacked Shri Krishna Sewak Agarwal, Pleader, Journalist, Ex-Chairman Janpad Sabha, Bemetara with a thick cane stick and broke his skull. The case is fixed for the 22nd November 1952. Shri Agarwalji has requested the Government to appoint some special pleader for conducting this case. This will enhance the Government's prestige because the case is an important one and the accused is President of several institutions. It is heard that Shri Jha has started a case against Shri Krishna Sewak Agarwal and Shri Kedarnath Jha Chandra under Section 500, Indian Penal Code.
4. Shri K. S. Agarwal in his reply declared that he was not the editor, printer, publisher or owner of the 'Zindgi' or owner of the Bharat Press by which it was published. The articles of the 1st May 1952 and the 18th August 1952: in the 'Zindgi' were the subject-matter of a case under Section 500 of the Indian Penal Code in the Court of the First Class Magistrate, Durg. As he (Shri K. S. Agarwal) had been assaulted on the 28th September 1952 by the petitioner, he could not edit the paper and was, therefore, not responsible for the appearance of the article dated the 27th October 1952. He was also not responsible for the articles in Blitz, the Nagpur Times and Naya Khoon or for the article, dated the 10th November 1952, in 'Zindgi' and he claimed that the articles complained of did not constitute contempt of Court.
5. Shri K. N. Jha asserted that he was printer, publisher and from the 28th September 1952 sole editor of 'Zindgi' in the employ of Shri Dwarka Prasad who was the proprietor of the paper and of the press. The article of the 27th, October 1952 was part of the subject-matter of the case under Section 500 of the Indian Penal Code and it appeared when no proceedings were pending in Court. The article dated the 10th November 1952 did not, according to him, amount to contempt of Court.
6. The petitioner pointed out in a written statement that Shri K. S. Agarwal in his transfer application of the 20th November 1952 admitted that he was the editor of 'Zindgi', and he cited other instances to show that he had not ceased to be connected with it. Shri Dwarka Prasad, who declared that Shri K. N. Jha was printer, publisher and from the 28th September 1952 sole editor of the 'Zindgi', admitted that he himself was the owner of the Bharat Press but asserted that he did not participate in its affairs because he was suffering from T. B. He added that the entire management and supervision were in the hands of Shri K. N. Jha, who was in his employment, that he himself was in no way responsible for the publication of the articles in question, and that they did not amount to contempt of Court. Shri K. S. Agarwal filed a copy of a declaration, dated the 10th August 1951, by him to the effect that he had ceased to be printer of the 'Zindgi'.
7. The case under Section 500 of the Indian Penal Code to which advertence has been made was instituted against Shri K. S. Agarwal and Shri K. N. Jha on a complaint, dated the 30th October 1952, by the petitioner who based it on the articles of the 1st May 1952, 18th August 1952 and 27th October 1952 in the 'Zindgi', of which, according to him, Shri K. S. Agarwal was proprietor and editor and Shri K. N. Jha joint editor. The application now before us was filed on the 27th November 1952 and it relates essentially to the matter which appeared in the 'Zindgi' not only on the 27th October 1952 but on the 10th November 1952. There was no appreciable tardiness in filing the application and it was not liable for rejection on the ground of undue delay.
8. Prior to its scrutiny on merits, we must decide whether or not on the available material there was substance in Shri K. S. Agarwal's plea that his connexion with the paper had terminated from the 28th September 1952 when he was incapacitated as a result of the head and other injuries allegedly caused to him by the petitioner. He had, as shown, filed a declaration, dated the 10th August 1951, under Sections 4 and 5 of the Press and Registration of Books Act, 1867 to the effect that he had ceased to be the printer of the paper; and on the 7th September 1951 Shri Dwarka Prasad had executed a declaration to the effect that he had a printing press in Durg. This did not connote that Shri K. S. Agarwal had ceased to be the owner or editor of the paper after the 28th September 1952, and there was -material which indicated the contrary.
There was in the first place no announcement or declaration of the cessation of interest in that publication; and in his transfer petition, dated the 20th November 1952, he had admitted that he was its editor. He had also, according to the petitioner's affidavit, shown himself as its proprietor in July 1952 in the income-tax return for 1951-52. Nor would it appear that his injuries had so incapacitated him that he was unable to perform editorial duties after the 28th September 1952. He had, in fact, on his own admission travelled to Nagpur thereafter and on the 30th September 1952 come into contact with journalists who made inquiries from him regarding the incident of the 28th September 1952.
The article of the 27th October 1952 in the 'Zindgi' also referred to the attack by the petitioner on 'Shri Krishna Sewak Agarwal, ex-president of the 'Janapad Sabha', Bemetara, 'vakil', writer, editor of the Zindgi paper'; and the Nagpur Times in its issue, dated the 14th October 1952, referred to an assault on a Durg editor on Dasehra day (28-9-1952) by a leading citizen of that town. The Naya Khoon also adverted to a cowardly attack with a 'lathi' on 'Shri Krishna Sewas Agarwal, pleader and editor of 'Zindgi'', and the article of the 11th October 1952 in Blitz related to an attack on Mr. K. S. Agarwal, a Durg journalist, by the Public Prosecutor.
9. We have, therefore, no reason to suppose that Shri K. S. Agarwal ceased to be editor or owner of the 'Zindgi' or that Shri K. N. Jha became its sole editor from the 28th September 1952. It follows that no liability can be attached to Dwarka Prasad and that the application against him must be dismissed. We do not, however, consider that an order for costs should be passed in his favour, as he falsely declared that Shri K. N. Jha was the sole editor of the paper from the 28th September 1952, There will be no order as to costs on this part of the case.
10. We now come to the article of the 27th October 1952. A case had been registered under Section 325 of the Indian Penal Code against the petitioner on the 3rd October 1952; and on the 9th October 1952 he had been arrested and enlarged on bail, but he was not challaned until the 31st October 1952 i.e. 4 days after the appearance of the article. The question then was whether or not Shri K. S. Agarwal or Shri K. N. Jha could be adjudged liable for contempt of Court in respect of an article which appeared in the 'Zindgi' prior to the initiation of criminal proceedings in Court by the authorities.
In - The King v. Parke 1903 2 KB 432 (A) it was held that the High Court had jurisdiction to attach the publisher of matter tending to interfere with the fair trial of a charge against a person who had not been committed for trial. Wills J. made the following observations at pages 437 and 438:
Great stress has been laid by Mr. Danckwerts upon an expression which has been used in the judgments upon questions of this kind - that the remedy exists when there is a cause pending in the Court. We think undue importance has been attached to it. It is true that in very nearly all the cases which have arisen there has been a cause actually begun, so that the expression, quite natural under the circumstances, accentuates the fact, not that the case has been begun, but that it is not at an end. That is the cardinal consideration. It is possible very effectually to poison the fountain of justice before it begins to flow. It is not possible to do so when the stream has ceased.
11. These observations were referred to by Hewart L. C. J. in - Hex v. Daily Mirror 1927 1 KB 845 (B), a case in which it was held that it was contempt of court in a newspaper to publish the photograph of a person charged with a criminal offence where it is reasonably clear that the question of his identity with the criminal has arisen or may arise or such publication is calculated to prejudice, a fair trial. Hewart L. C. J., however, took care to point out that the Bench was not called upon to consider the question whether there may be contempt of court when proceedings are imminent but have not yet been launched; and he added that the question did not arise, because there was a charge and there had been an arrest. He also explained that the mischief in contempt of court consists not in some attitude towards the Court itself, but in conduct tending to prejudice the position of an accused person.
12. These two cases were referred to by a Full Bench in - P. S. Tulajaram Rao v. Governor of Reserve Bank of India AIR 1939 Mad 257 (C), in which it was held that to comment on proceedings which are imminent but not yet launched in Court with knowledge of the fact is as much a contempt as comment on a case actually launched. This view was followed in - Tusharkanti Ghosh v. Governor of Bengal : AIR1933Cal118 ; - Government Pleader v. Shankar Dattatraya AIR 1938 Bom 198 (E); - In The Matter of 'Tribune', Lahore AIR 1943 Lah 329 (F), a Full Bench decision, - Emperor v. Khushal Chand AIR 1945 Lah 206 (G) and - Crown v. Brish Shan AIR 1950 Pepsu 9 (H). Harnam Singh J. remarked in - Divan Chand Choudhry v. Narender AIR 1950 EP 366 (I) that there may be contempt of Court in prejudicing mankind against persons before the cause is heard.
We are in respectful agreement with these authorities; and we hold that as Shri K. S. Agarwal and Shri K. N. Jha were fully and intimately apprised of the fact that proceedings under Section 325 were imminent against the petitioner, he was liable for contempt of court, if the articles of the 27th October 1952 contained matter which lay within the mischief of that term. So far as the article of the 10th November 1952 is concerned, it appeared after the petitioner had been challaned when the case was 'sub judice', and here too the only question for determination is whether it constituted contempt of court.
13. We have no hesitation in deciding that the article of the 27th October 1952 contained passages which amounted to contempt of court. There is no suggestion in it that an attack had allegedly been made on Shri K. S. Agarwal, and it is, on the other hand, explicitly stated that the petitioner had assaulted him with a cane and had fractured a bone in his head. There are also references to the fact that the petitioner had been arrested and released on bail, assertions that his supporters had intimidated Shri K. S. Agarwal and allegations that attempts were being made to suborn the prosecution witnesses and to tutor witnesses for the defence. Comment of this character was manifestly intended to interfere with the administration of justice, and, as was pointed out in - T. B. Hawkins v. D. P. Mishra AIR 1952 Nag 259 (J) by a Bench of which one of us was a member, comment even in the absence of such intention is actionable if it has a tendency or is calculated to interfere with the administration of justice.
14. The article of the 10th November 1952 was not so egregious as that article, but it too constituted a contempt of court by categorically stating that the petitioner, who had been prosecuted in the Court of the 2nd Class Magistrate, Durg, under Section 325 of the Indian Penal Code, had on Dashera day attacked Shri K. S. Agarwal with a thick cane and broken his skull. Ordinarily no action for contempt of Court is taken unless the contempt is substantial, but the contempt even in this article was not by any means pusillanimous, and the article in effect contained, an assertion that the petitioner was liable for the commission of an offence punishable under Section 325 of the Indian Penal Code, although that was the issue for eventual determination by the Court. The article, moreover, did not appear in a paper which was edited or owned by a person who was in no way concerned with the case but in a paper which was edited and owned by the alleged victim of the attack.
15. The contention that as the article of the 27th October 1952 was part of the subject-matter of the petitioner's complaint under Section 500 of the Indian Penal Code, the High Court could not deal with it in these proceedings was based on Section 2(3) of the Contempt of Courts Act (now Section 3(2) of Act 32 of 1952-Ed) which is in these terms:
No High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.
16. That sub-section was interpreted in two cases by the Patna Court. In - Kaulasha v. Emperor : AIR1933Pat142 (K), a Division. Bench held that when under the Indian Penal Code there is already a provision for punishing, a contempt of court as a contempt of court, the Contempt of Courts Act itself shall have no application and not that the act which constituted the contempt cannot be punished under that Act because it was constituted an offence under the Indian Penal Code. In other words a single act may be both an offence under that Code and also a contempt of court and punishable in either capacity or both capacities. This view was followed in - Jnanendra Prasad v. Gopal Prasad : AIR1933Pat204 (L), in which it was remarked that the sub-section obviously excepts those cases of contempt which, are punishable by the Indian Penal Code as contempt and not if they are punishable independently of that contempt.
17. A Division Bench in - State v. Brahmai Prakash : AIR1950All556 ; Vakil J. C. in - Ramniklal v. Pranlal AIR 1952 Kut 74 (N); a Division Bench in - Bennett Coleman & Co., Ltd. v. G. S. Monga AIR 1936 Lah 917 (O) and Bose J. as he then was in - Sub Judge, First Class, Hoshangabad v. Jawahar Lal Ramchand were of the ame view. Their Lordships of the Supreme Court of India also examined the question in - Ramakrishna Reddy v. State of Madras : 1952CriLJ832 and, as their observations below indicated, shared that opinion:
In our opinion, the sub-section referred to above excludes the jurisdiction of High Court only in cases where the acts alleged to constitute contempt of a subordinate Court are punishable as contempt under specific provisions of the Indian Penal Code but not where those acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code. This would be clear from the language of the subsection which uses the words 'where such contempt is an offence' and does not say 'where the act alleged to constitute such contempt is an offence'. It is argued that if such was the intention of the Legislature, it could have expressly said that the High Court's jurisdiction will be ousted only when the contempt is punishable as such under the Indian, Penal Code. It seems to us that the reason for not using such language in the sub-section may be that the expression 'contempt off Court' has not been used as description of any offence in the Indian Penal Code, though certain acts which would be punishable as contempt of Court in England, are made offences under it.
18. Neither Shri K. S. Agarwal nor Shri K. N. Jha suggested any apology in their written statements or in Court; and the case is clearly not one in which admonition of them would be adequate. We order Shri K. S. Agarwal to pay a fine of Rs. 250/- and Shri K. N. Jha to pay fine of Rs. 75/- under Section 3 of the Contempt of Courts Act, 1926. We also direct them to pay costs; and, as already shown, the application against Shri Dwarka Prasad is dismissed but no order as to costs will be passed on that part of the case. We assess the costs payable by Shri K. S. Agarwal and Shri K. N. Jha at Rs. 200/- and Rs. 100/- respectively. This will include paper book costs.