1. This is an application by six of the accused in the Meerut Conspiracy Case drawing the attention of the High Court to the issue of the Times of India dated 25th February 1930, pp. 11 and 17 and praying that a notice be issued to the Editor and the Printer and Publisher, of the said newspaper to show cause why they should not be convicted for contempt of Court.
2. If I had thought it a fit case for issuing notice to show cause, I would have directed this matter to be laid before the Hon'ble Chief Justice for the constitution of a Bench of three Judges, as has been done in the past in regard to contempt of Court cases. But as I do not propose to take such a step, I think I have jurisdiction as a single Judge under Chap. 1, Rule 1(14) Sub-clause (b), High Court Rules, to dispose of this application when there is no rule expressly requiring it to be made by a Bench of two or more Judges. Also as the application has been sent through the Superintendent of Jail, I can according to the practice of this Court dispose of the matter in chambers without fixing any date for its hearing. The inherent jurisdiction formerly exercised is now expressly conferred by the Contempt of Courts Act 12 of 1926.
3. The issue referred to above reproduced a note issued by the Government of Bombay on the labour position in Bombay City. Objection is taken by the applicants not to any comments made by the Editor on that note but on three specific passages in the note itself which has been printed in extenso in the paper. The accused persons are being tried for an offence,, under Section 121-A, I.P. C, and their grievance is that the publication of this note is likely to prejudice their trial. In para. 6, of their application it is admitted that the subject matter in the trial embraces many subjects and the movements in which the accused took part have become part of history, and:
It is impossible for anybody to write about or comment on any labour or allied subjects without in some manner or other, directly or indirectly referring to the issues in this case;
the case of the petitioners covers the origin and growth of modern capital going back for centuries, revolutions in all parts of the world, social science, the whole field of sociology and state, the constitution's of several modern forms of state and several countries, including all the historical development of India and its off shoots for the last ten years.
4. If the scope of the inquiry or defence is so wide, it cannot be expected that, while the trial is going on, public criticism on all the subjects mentioned above should be entirely withheld. General comment on these various matters or historical events, so long as they do not directly refer to the part played by the accused, cannot be seriously objected to. Such criticism would not be a comment on pending proceedings at all nor would the publications of such comments ordinarily tend to interfere with the course of justice. The test to be applied is whether the publication is likely to prejudice mankind in favour of or against a party before the case is finally heard or whether it is likely to interfere with the due course of justice. Passage marked A-3 deals with the infusion of communism into the labour movement. No doubt the note refers to the starting of a paper called the 'Kranti' (revolution), of which one of the accused is stated in the application to have been the Editor, refers to the formation of a new Girni Kamgar Union, of which some of the accused are stated in the application to have been office bearers and also refers to efforts to bring about strikes with the object of destroying capital and establishing a labour raj; but it does not otherwise refer directly to the accused or any specific activities of theirs which would have a bearing on their alleged offence under Section 121-A. The passage refers to the position in general and is by no means a comment on the pending proceedings or any writing likely to influence the result of that trial. I, therefore, do not think that this amounted to a contempt of the Subordinate Sessions Court.
5. Paragraph marked A-2 is as follows:
It is unfortunate that certain individuals are fastening upon the workers, deluding them with promises incapable of fulfillment and endeavoring to use the cloak of trade unionism as a, mark for revolution. Such exploitation is disastrous to the working classes themselves and the Government desire to do everything possible to check it.
6. If the context of the note had shown definitely that any of the accused in the conspiracy trial are meant by the words 'certain individuals' who are aiming at revolution, it would undoubtedly be a writing prejudicing the public against the accused concerned during the pendency of the proceedings and its publication would have amounted to a contempt. But even when the whole note is read, it remains doubtful whether the individuals referred to therein are necessarily the accused in the Meerut trial. They are certainly not mentioned by name at or about the place where this passage occurs. It would not be fair to connect this passage with the passage at another place in this long note to be mentioned hereafter. On the whole, I think that this is an ambiguous expression of opinion which cannot be considered to relate necessarily to any of the accused in the Meerut trial. It is, therefore, unnecessary to take cognizance of it.
7. The passage marked A-l is slightly more definite and is in the following words:
The abstention of the Bombay Textile Labour Union threw into relief the activities of the Girni Kamgar Union, more particularly as several of the leaders of that union had been arrested in connexion with the Meerut case, while the public itself felt that the communal riots in the early part of the year had been fomented by the activities of those same leaders in stirring up animosity against the Pathans who helped to break the oil workers' strike.
8. The reference in the note to the leaders of the union who were arrested in connexion with the Meerut case as having fomented the riots was not proper, as the Meerut case is still proceeding. It unquestionably implies the suggestion that these persons have fomented the communal riots. Matter published in a newspaper relating to the past life of an accused or to his antecedent character, particularly if it suggests an offence similar to that with which he is charged, is contempt of Court as it must bond to interfere with the fair trial of that charge. Publishing such matters in reference to the parties of a pending prosecution is likely to exercise a prejudice against them in the minds of the public, and it is incumbent on Courts of justice to preserve the minds of the public from being prejudiced against the accused before the trial is concluded. The reproduction of this passage therefore, amounts to a contempt of Court.
9. But the contempt of Court is not a matter of mere form or technicality but substance, and the jurisdiction to punish for contempt has to be very carefully and cautiously exercised. It is well settled that when the offence is technical or of a slight or trivial nature the Court may condone it. Even if the observations on the subject matter of a proceeding may be likely to interfere with the course of justice and may technically amount to contempt, the Court may not interfere, if it is not satisfied that such comments were calculated to prejudice the fair trial. In re, Clemens, Jessel, M.R. remarked:
In my opinion although as I say there is here that which is technically a contempt, and may be such a contempt as to be of a serious nature, I cannot think there is any such interference or any such fear of any such interference with the due conduct of this action, or any such prejudice to the defendant who is applying here as to justify the Court in interfering by this summary and arbitrary process: In re, New Gold Exploration Co.  1 Ch. 860.
10. There is no affidavit in support of the application, but as I do not propose to issue any notice to show 'cause,I do not think it necessary to call for affidavits. The proprietors might or might not have been actually aware of the publication of the note, but the Editor and the Printer and Publisher must be presumed to have knowledge of it. The note, however, is not any editorial comment, but is apparently a faithful and bona fide reproduction of a communication issued by the Government of Bombay. There is no reason to imagine that in reproducing it the Editor and the Printer and Publisher of the Times of India had themselves any intention of prejudicing the trial. Such communications are usually printed and published in the ordinary course of business. There cannot be any reasonable apprehension that the Sessions Judge in trying the case or the assessors would be in any way prejudiced by what the Government of Bombay has thought or what the Times of India has published. Nor is there any reasonable apprehension that witnesses who have to depose as to facts would be influenced by the opinions held by others. It is not suggested in the petition that the Editor and the Printer and Publisher of the Times of India themselves were actuated by any malicious motives against the accused in reproducing it.
11. Having regard to all these circumstances, I do not think that this is a fit case in which notice to show cause should be issued; but at the same time it is necessary that the Editor and the Printer and Publisher should be warned so as not to comment in future on the proceedings of the criminal trial or the antecedent history or character of the accused in any way likely to prejudice the minds of the public in favour of or against the prosecution or any of the accused.
12. In case either the Editor or the Printer and Publisher named in the application desire to dispute their connexion with the said paper or challenge my conclusion, it would be open to them to apply for a re-hearing, as I am disposing of this matter only ex parte.
13. I accordingly order that only the warning referred to above should be sent to them by the Registrar.