Mohd. Ahmed Ansari, J.
1. These proceedings for the contempt of Court have arisen on an application filed by C. B. Tara -purwala on behalf of H.E.H. the Nizam and are directed against B. G. Keskar, as well as the proprietor or the printer of Sadhana Prin-tery. The application has asked this Court to pass appropriate orders against the aforesaid respondents for their having written, published and circulated a pamphlet entitled B. G. Keskar v. H.E.H. the Nizam. The circumstances under which the pamphlet has been written, printed and published may be given concisely.
On 27-4-1954 B. G. Keskar filed a document before the District Magistrate, Hyderabad City, which the applicant in this case claims to be a complaint, but which B. G. Keskar asserts to be an information Under Section 190(1)(c), Criminal P. C. In it B. G. Keskar has alleged that Mir Os-man Ali Khan, the ex-Ruler of Hyderabad, resides in a building called Raj Bhavan in Hyderabad City and has turned it into a veritable hell for the victims of his passion and that the building is used as a cellular jail, wherein not less than 300 adult women, 100 adult men. and an unknown number of minor boys and girls are detained as slaves, over whom H.E.H. the Nizam wielded all powers of life and death.
The document is entitled as information of offences under SB. 346 and 370, IPC and the District Magistrate on 27-4-1954 directed the Commissioner of Police to make an inquiry and submit a report. The Commissioner by his letter No. 570/P/54 of 3-5-1954 invited the attention of the District Magistrate to Article 361(2) of the Constitution and on 25-6-1954 the District Magistrate made an order referring two questions of law to this Court for determination.
The first of these was, whether the phrase 'criminal proceeding' in Article 361(2) included investigation under the Criminal Procedure Code and the other whether the immunity extended to the official residence of the executive heads of the Union and the States. A Bench of this Court on 11-10-1954 rejected the reference on the ground that the amended Section 432, Criminal P. C. empowered the Magistrate to refer to this Court jjnly if he be of the opinion regarding any pro-Wision of an enactment being invalid and as the Magistrate had expressed no such opinion he could not refer.
The proceedings were then returned to the District Magistrate, Hyderabad City. In para 9 of the application for taking contempt proceedings it is alleged that after the return of the record but before the District Magistrate has. passed any orders in respect of the said proceeding pending before him B. G. Keskar published and circulated the pamphlet entitled B. G. Keskar Versus H.E.H. the Nizam.
We shall shortly give the contents of the1 pamphlet but to complete the narration of events upto the hearing of the application for the contempt, the Magistrate on 28-3-1955 passed an order directing the police to inquire and report about the commission of the offences mentioned in. the document filed before him on 27-4-1954. In this order the Magistrate has expressed the view that no criminal proceedings were being institu-tuted against the Rajpramukh, which according, to him can only be said to be instituted when a person is summoned to stand his trial, or the Court makes up its mind to act upon a charge sheet against him and takes some overt act to implement its action.
He has further held that the immunity under Article 361(2) did not extend to the residence of the executive heads of the State. Aggrieved by this order H.E.H. the Nizam, through his power of attorney agent, C. G, Tarapurwala has filed' a revision petition in this Court which was admitted. The application for the contempt proceedings was filed after the above petition was. filed. After directing issue of notices against the respondents, we thought it expedient to connect the application with the revision petition,, because the questions whether the acts of the two respondents to the application constitute contempt of Court are closely connected with the determination of the several points raised in the revision petition.
One such point in the revision-peticion is. whether the proceedings before the Magistrate-are opposed to Article 361(2) and if the proceedings be held to be against the aforesaid provisions of the constitution, they would be void, with the consequence of the publication of any document casting reflections on a person not being against a party to any legal proceeding. Accordingly both the application for the contempt and the revision petition were connected and heard together.
2. The pamphlet, which has been made the basis of the application in the contempt proceedings, has printed several documents that form part of the records of the proceedings before the Magistrate, the document purporting to be information to the District Magistrate, the order of the District Magistrate to the Police Commissioner, the reply of the Commissioner to the District Magistrate, Keskar's reply to the objections raised by the Police, District Magistrate's reference to the High Court, and High Court's order. In addition a letter of B. G. Keskar to the President of the Union is printed at pp. 17 to 19 and in para 13 of the application the following extracts from the aforesaid letter are given as particularly amounting to contempt of the Court:
In a Democracy the Executive Government always tries to snatch the power of the judiciary. A unique and first example of this tendency is this case, where the Magistrate instead of taking contempt proceedings against the Police Commissioner fell a prey to the seeming legal subtlety raised by the Police. The case was referred to the Hyderabad High Court; the High Court rejected the reference on the technical ground that the reference was not to order as it did not contain the opinion of the Magistrate.
In the meantime, the Nizam applied for an iadjournment of two months to engage a lawyer. The result is mat this serious matter Is at its initial stage even after six months, The Nizam and the Police axe laughing in their sleeves at having tricked the judiciary into academical and technical discussions and having gained sufficient time to suppress and destroy evidence of crime.
All the responsible Ministers, of the Central and State Government as well as all the major political and social organizations are aware of the truth of the information given, to the Court...If your secular Government is pleased to conftir a special title of His Exalted Holiness on the Nizam for his past and present sins and treachery to the country, I have the least objection..fundamental rights demand that not a single person be detained except under the process of law and non-communal rule requires that Muslims cannot be a privileged class.
Your Congress Government moves the heaven and earth if a Hindu Prince were to take a second wife in lawful wedlock, ordinary Government servants are prohibited from marrying a ;second wife in the life time of the first, but allows , a Rajpramukh, the Biggest Razakar, to -detain, convert and treat as slaves hundreds of women against their will. Is it because he happens to be a Muslim by birth and has proved his nuisance value to your Government?.
Please note further that by the grace of God the Congress has not been able to turn all the Indian youths into Enuchs and sufficient number of men will, though unarmed, go to the Nizam's residence, brush aside the armed sentries; rescue the prisoners and bring them before the Magistrate. If your Government wishes to obstruct these men let the world look at this strange phenomena of a democratic Government which professes to teach a lesson to the world and which prides in a noble cultural heritage supporting with arms a despot who is determined to enslave innocent women and act an outlaw in the face of your Government and its most sacred Constitution.I therefore pray that H. E. H. the Nizam, the Raj Pramukh of Hyderabad State, be immediately dismissed to facilitate the liberation of the slave women and avoid the delay caused in the judicial proceedings.
3. According to the application all the aforesaid statements were written, printed, published and circulated with the knowledge of the pending proceedings and are likely to prejudice the proceedings and the applicant in the Court of the District Magistrate, Hyderabad City. It is further claimed, that they are calculated to substantially obstruct and to interfere with due course of justice and lawful purpose of the Court. These are therefore one class of contempt of Court which the resopndents are alleged to have committed by the publication of the pamphlet. The other is that a part of the statements which we shall recapitulate later, is circulated to bring the Judges of the High Court and the District Magistrate, Hyderabad City, into contempt and to lower their authority with the general public.
4. In response, to the notice, the proprietor of Sadhana Printery appeared in this Court and apologized. So far as he is concerned, this apology appears to us to be sufficient for concluding the contempt proceedings against him. But the advocate of B. G. Kesker filed a reply and argued that as the proceedings before the Magistrate were of an executive nature, the several statements complained against do not amount to contempt of Court as they were not made during the pendency of any judicial proceedings. He further argued that there were no disparaging comment against the District Magistrate nor against the ' Judges of this Court and the application for contempt should be, therefore, dismissed on this account. Another plea taken was that the application was unduly delayed. We are consequently compelled to deal with the several arguments of the learned advocate of the applicant and with the authorities cited by him in support of his argument why the aforesaid statements should be held as amounting to the contempt of Court. The objections on facts will be dealt with only when we are convinced of the soundness of the legal arguments.
5. The proposition of law is well entrenched that there are three classes of contempts. One is committed by scandalising the Court, another by abusing parties who are concerned in the case, and the third by prejudicing mankind against persons before the case is heard. These were enumerated by Lord Hardwick in the case of St. Jams Evening Post, (1742) 2 Atk, 469 (A), and since then have been accepted as correct in England. Maugham, J., has in Re William Thomas Shipping Co. Ltd., (1930) 2 Ch D, 368 (B), observed at page 376:
I think that to publish injurious misrepresentations directed against a party to the action, especially when they are holding up that party to hatred or contempt, is liable to affect the course of justice, because it may, in the case of a plaintiff, cause him to discontinue the action--from fear of public dislike, or it may cause the -defendant to come to a compromise which he otherwise would not come to, for a like reason.
Oswald, in his book on Contempt of Court also makes the following comment:
All publications which offend against the dignity of the Court, or are calculated to prejudice the course of justice, will constitute contempts. Offences of this nature are of three kindsnamely those which (1) scandalise the Court: or (2) abuse the parties concerned in causes there; or (3) prejudice mankind against persons before the cause is heard. Under the first head fail libels on the integrity of the Court, its Judges, Officers or proceedings; under the second and third heads anything which tends to excite prejudice against the parties, or their litigation, while it is pending. For example attacks on or abuse of a party, his witnesses or solicitor, constitute con-, tempts, though a mere libel on a party, no amounting to an interference with the course of justice, does not, the party being left to his remedy by action.
The aforesaid passage was relied in 'Rajah of Venkatagiri v. Rama Naidu' AIR 1938 Mad 248 (C), where a suit by the holder of an impartible estate for an injunction restraining some of the inhabitants of his estate from entering his forest and cutting firewood was pending and an article was published in a weekly paper stating the defendant's case, inferring it to be true, and accusing the plaintiff of having ruined the defendants, of having concocted the false criminal case and of using his influence maliciously. It was held in proceeding for the contempt that the author of the article and the editor of the paper h which the article was published were guilty of t contempt of Court. Moreover the fact that the trial Judge would not be affected by the article was held to have no bearing on the matter. The next case we would refer to is 'In the matter of Nagendranath' AIR 1939 Cal 672 (SB) (D), where a pamphlet was published assuming the truth of certain facts which were connected with matters under consideration and awaiting decision on appeal. It also contained reflections upon the conduct of certain of the persons in the appeal and predicted that the appellants were likely to succeed in the appeal, adding the comment that if they succeed law and justice would be defeated. The publication was held to constitute attack on the conduct, of the parties to pending legal proceeding and to be contempt of Court, though its contents might have no possible influence on the Court's decision thereon. Again in Re Sub-ramanyam Editor Tribune' AIR 1943 Lah 329, it was laid down that anything done which is calculated to interfere with the due course of Justice or is likely to prejudice the public for or against the party amounts to interference with due course of justice. Finally the Supreme Court in .Hiralal Dixit v. State of U. P.' AIR 1954 SC 743 (P), where a party to the appeal distributed printed leaflets, have held that as the leaflets contained an attack on the other party, the object of writing and the time and place of its publication being calculated to deflect the court from performing its strict duty by creating prejudice in its mind against the party, it amounted to contempt.
6. Having regard to all the authorities cited above, it, appears to us to be well established that foe publication of anything which is likely or '.ends to excite prejudice against the parties, while the litigation is pending, amount to contempt of court and the test in such cases is not whether the writing has in fact obstructed or interfered with the administration of law. There are also authorities of the Calcutta and Lahore High Courts which were relied upon by the advocate of the applicant, though the view is not uniformly held that publication of adverse comments regarding persons against whom criminal proceedings are imminent, amounts to contempt. These authorities, however, assume the pending or imminent proceedings to be legal. They further assume the person adversely commented upon to be criminally triable. The main question in the case before us is whether the proceedings before the Magistrate during which the pamphlet was printed are against Article 361(2) and what are the legal consequences of the decision holding them to be constitutionally bad. The Article Is as under:
361(2). No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor or Raj-pramukh of a State, in any court during his term of office.
7. The advocate of B. G. Kesker has argued in this as in the revision petition that several steps taken by the District Magistrate were of an executive nature. We have in our judgment in the revision petition just pronounced held that they amount to criminal proceedings in court. Any discussion in the judgment in this application with the several authorities cited on behalf of the respondent on the point would be needless repetition of our views on them. Our view, in this as In the other case is that the proceedings before the District Magistrate, Hyderabad City after filing of the document amounted to criminal proceedings In court. They are therefore opposed to the provisions contained in Article 361(2). Now the consequences of any act being unconstitutional are well known. There are authorities that if an enactment be unconstitutional, it confers no rights, it Imposes no duties and it is in legal contemplation as inoperative as though it had never been passed. In support of this proposition we would refer only to 'Norton v. Shelby County', (1886; 30 Law Ed. 178 at p. 186 (G) if this be the legal position of acts by legislatures under written constitution, it is equally true of such judicial orders or proceedings as are contrary to constitutional provisions. The reason is obvious. The written constitution being the fundamental law of the land all acts of the several organs of the State must conform to it. Consistently with this proposition it allows that the publication of the pamphlet was during the proceeding which were legally no proceedings. At any rate the several statements contained in the application are regarding a person not then criminally triable and therefore causing no interference with administration of law. Again as long as H. E. H. the Nizam holds the office of Raj-pramukh, criminal proceedings are not permitted against him by the express words of the Constitution and therefore no such proceedings can be held to be imminent. The fact of the comments1 being defamatory is not sufficient to hold the person making them guilty of contempt. Lord Hardwick in the celebrated case already referred to above, conceded the proposition that every libel is not contempt of court. In 'Demibai Gengji v. Rowji SojpaF AIR 1937 Bom 305 (H), it was also observed that a libel on the party to a suit where it does not amount to interference with the administration of justice is a matter in respect oi which the aggrieved party can have his remedies elsewhere; he may either prosecute the writer in a criminal Court of law or he may bring an action for defamation in a civil court, but he cannot proceed in contempt against the author of the libel. We are, therefore, of the opinion that, because the proceedings before the Magistrate during which the pamphlet was printed and published were no legal proceedings and so long as H. E. H. the Nizam is the RajpramuKh, he cannot be criminally proceeded against in Court, the several statements referred to in the application do not amount to contempt of court, there being no interference with any pending or Imminent criminal proceedings.
8. It was then argued on behalf of the Advocate for the applicant that because the objection about the criminal proceedings being unconstitutional was raised before the Magistrate and that objection is still being determined in thls> Court, the proceedings were legal to this extent and that because the comments have caused or are likely to cause prejudice to a person interested in such proceedings, they amount to contempt. If we were to accept the proposition, it would mean that the publication need not be prejudicial to the decision of the points involved in the case. The authorities lay down that the publications must interfere or be likely to interfere with the administration of law and if they relate to something not in controversy in the particular case, how can they amount to any such interference?' In 'State v. Padmakant Malayya', (S) : AIR1955All377 it has been field that n publication regarding the legal title of a party to the subject matter of the dispute in proceedings Under Section 145, Cr P. C. was not contempt as the Magistrate had to determine which party was in possession of the water on the date on which he took cognizance of the case and he was not concerned with the legal title of either party to the subject mat-ter of the dispute.
In the case before us the subject of dispute is whether the filing of the particular document before the Magistrate and the several1 steps taken; by him thereafter amount to institution of cri- minal proceedings in a court against the Kaj-pramukh. It is obviously a legal issue relating to the extent of the immunity conferred on high offices under the Constitution and in determining it the courts are not concerned with the character of the person who occupies the office of a Raj-pramukh. We are of the opinion that the publications complained against do not interfere nor are likely to prejudice the determination of the question involved in the case and therefore the statements cannot be treated as amounting to contempt of Court.
9. The learned advocate of the applicant then drew our attention to a passage at page 18 of the pamphlet and argued that the form in which the passage is couched amounted to contempt of the Judges of this Court as well as of the District Magistrate, The passage complained of runs as follows:
The case was referred to the High Court. The High Court rejected the reference on the technical ground that the reference was not in order and it did not contain the opinion of the Magistrate.
In the meantime the Nizam applied for an adjournment of two months to engage a lawyer. The result is that the serious matter is at its initial stage even after six months The Nizam and the police are laughing in their sleeves at having tricked the judiciary into an academical and technical discussion and having gained sufficient time to suppress and destroy evidence of crime.
10. In assessing whether the passage amounts; to contempt by scandalising the court, we must bear in mind that the judiciary is not above criticism. Indeed the Supreme Court in 'Brahma Prakash v. State of U.P. : 1954CriLJ238 , have observed that it is not by stifling criticism that 'confidence in courts can be created and that proceedings for this species of contempt fhould be used sparingly. Once right of fair and reasonable criticism is conceded, the dignity of expression cannot be strictly insisted in every case. Evidently B. G. Kesker relishes in scandalising persons and personalities without there being any relevance or occasion. The way in which he has drafted the document he filed before the Magistrate is not such as is used for courts of law or one which we expect from advocates.'He had avowedly adopted proceedings in courts for the propagation of his views on various matters, a course which we must deprecate. In these circumstances we should not be unduly perturbed if we find a complaint of delay couched in language not desirable. We are convinced that the statements relied upon do not scandalise the judges of this Court, nor do they amount to such adverse comments against any individual officer ot the subordinate judiciary as to justify our taking action against the writer for scandalising the court.
11. In the view we have taken we reject the application with costs to the contesting defendant which we assess at Rs. 50/-.