M.H. Beg, J.
1. The contempt jurisdiction of this Court has been invoked by a young woman called Shamim Rahmani, aged about 22 years, who was convicted of murder and sentenced Under Section 302 IPC to life imprisonment by the District and Sessions Judge of Lucknow. Her appeal is still pending in this Court so that no final opinion about her guilt could be expressed or published just now. But, the three opposite parties, who jointly edit a women's magazine in Urdu, called Bano, have, it is alleged, printed and published a highly coloured version after distorting and even inventing what is not on record and purporting to reveal what the applicant's real motive was after assuming that she was the murderess.
2. The applicant's case had attracted considerable publicity. It appears to have given rise to speculations as to whether she, after having fallen in love with Dr. Gautam, a married man with a wife and three children, had really shot him dead. It appears that the learned Sessions Judge had accepted the prosecution case that the gun with which Dr. Gautam was alleged to have been shot was used by the applicant Shamim Rahmani to shoot Dr. Gautam. Her plea as an accused was that she was not present at the actual place where the murder of Dr. Gautam was committed. Her statement was that she was, during the night of the murder, asleep in her mother's room and did not know how or by whom Dr. Gautam was shot.
3. The article complained of is headed: 'Shamim Rahmani Ki Kahani.' It begins by mentioning that two shots were heard in Kandhari Bazar, Lucknow, a shriek was let out and a man fell down on the ground and died. Such a statement could only be made by an actual witness of the occurrence. It appears that there is no witness in the case who alleged having seen any such occurrence taking place. The article proceeds to mention that the police had made one Kalika, a young tailor and his friend Ram Krishan Tewari, who was conversing on the road, as 'eye witnesses of the murder'. But, immediately after that, we find that, according to their statements, they only heard gun fire and also overheard the mother of Shamim Rahmani questioning her daughter and the daughter saying:
Doctor had deceived me. He had ruined my life. I have no wrong in murdering him.
The article also gives the alleged statement of the applicant Shamim Rahmani, said to have been overheard by these witnesses, which was as follows:-
Bhaiya take this gun and shoot me> because I do not want to live any longer.
4. The article purports to give the motive for the murder of Dr. Gautam. It is clear, from a reading of the article, that the object of the writer was to give, in a highly imaginative and dramatic form, the truth which other magazines and newspapers had missed. In the course of giving this version, the writer apparently gave his own interpretation of what he thought was the character of the applicant. This character, according to him, was that of a woman who, to use his own words, felt:
Every kind of mischief and deception could be tolerated but not the deception in the name of love which she is not prepared to tolerate at any price.
It is also evident from the article that the writer thought that even the eyes of Shamim Rahmani spoke eloquently as though he was a witness of the occurrence. If the writer was an eye-witness, it was certainly his duty to have come and give evidence at the trial. In that event, he would have been allowed to depose what lie knew about the whole affair. But, to pose as though he was more than a witness and could interpret, with the aid of such poor knowledge of psychology as the writer evidently possesses, the thoughts and feeling and motive of the applicant, at a time when her appeal was pending in the highest Court of the State, is nothing short of highly presumptuous conduct. It is evident by reading through the article, that the writer, although not really a witness, had indulged in flights of fancy based upon the supposed language of even split blood. He also gave a version in which Dr, Gautam is painted as a heartless man toying with the feelings of many young women. Perhaps he meant to suggest that the applicant was a sort of heroine taking revenge against wrongs which Dr. Gautam was supposed to have perpetrated against outraged womankind. It is not clear what writer actually meant to convey. But, there could be no doubt whatsoever that, when the case was pending final decision in this Court, he tried to unravel the motive for the murder, and, in doing so assumed that the applicant had committed it.
5. A reading of the article also shows that the writer intended to reveal the character of the applicant although it is not clear whether he meant to paint her as a heroine or a vicious woman moved by senseless jealousy and feeling of possessiveness. Section 54 of the Evidence Act says:
In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.
Explanation to Section 55 shows that 'general disposition' is included in the definition of 'character'.
6. From the several newspaper reports of decisions in the case, filed in this Court, it appears that the applicant had not taken a plea, which she could have taken under the law, that she was not the kind of person who would commit murder. The prosecution could, therefore, not have led evidence of her vicious character. What the prosecution could not have done, the writer of the article was trying to inject into the case by bringing his own supposed knowledge of female psychology to bear upon the facts of the case. In other words, the writer was doing nothing short of undertaking a trial of the alleged murderess by contributing an article showing where he would place the responsibility for the murder and what its motive was. This contumacious conduct of the writer needed to be pointed out to him by a responsible editor to whom he may have taken such an article. But, we find here that the editors of this magazine readily accepted what was brought in the hope that they would satisfy the desire, healthy or unhealthy, of the readers for information to get at the truth of the case.
7. It is the duty of the responsible journalist to realise that it is the function of a Court when a case is still not finally decided against an accused person to arrive at the truth and that it is not for the Press to hold the trial even for the most heinous crime before the Court has given their final verdict. It may be that this principle is not observed strictly or meticulously in some countries. One may recall cases from forensic fiction, such as that by the late Erie Stanley Gardner, where such rules of propriety are violated and the press is used for creating situations or an atmosphere in favour of or against particular persons concerned in a case to be still tried. It is, however, clear that, in this country, this is not permitted. The course of justice must not be interfered with by publications which constitute opinions upon the merits of the case or create an atmosphere for or against an accused person before his or her case is finally decided. All that is permitted is fair and accurate reporting of the proceedings of Courts of law. After Courts of Law have dealt with the facts of a case and the judgment is finally pronounced, the press and the public are at liberty to express their views on evidence and to give their own interpretations subject to risk of proceedings for defamation by injured parties. But, they will be outside the purview of the law of contempt after that.
8. The kind of contempt known as 'prejudicing mankind' in favour or against party was subject matter of a recent decision by the Supreme Court In re: P.C. Sen : 1970CriLJ1525 . Their Lordships laid down:
The law relating to contempt of the Court is well settled. Any act done or writing published which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere with the duo course of justice or the lawful process of the Court is a contempt of Court: R. v. Gray, 1900-2 QB 36 at p. 40. Contempt by speech or writing may of by scandalising the Court itself, or by abusing parties to actions, or by prejudicing mankind in favour or against a party before the cause is heard. It is incumbent upon Courts of justice to preserve their proceedings from being misrepresented, from prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard.... Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving reflections on parties to a proceeding amount to contempt. To make a speech tending to influence the result of a pending trial, whether civil or criminal is a grave contempt, comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources. The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere, with the due course of justice.
9. In re: P.C. Sen : 1970CriLJ1525 (supra) the Supreme Court also pointed out a distinction between the law in England with regard to a case of conviction where an appeal is pending on a question of law, and the law in this country where Courts of Appeal decide not merely questions of law but also determine all questions of fact. In this country, proceedings in the appellate Court are, in a very true and literal sense, the continuation of the trial. The trial is not over till the final Court of appeal on facts has given its verdict. Therefore, the observations made in Regeim v. Duffy, (Ex parte Nash, 1960-2 QB 188), with regard to the remoteness of any possibility of affecting the decision of a case when the matter is pending in an appeal, are not really applicable in this country. The mere possibility of a Judge reading a publication making comments on merits of a case is enough. The remoteness of the possibility of affecting the judicial mind does not matter. The mere arrogation of the function of pronouncing and publishing verdicts upon the motives of an accused or of prosecutor in a criminal case or comments, attempting to bring out the real truth will constitute contempt where the case is still undecided.
10. In any case, the possibility of affecting the conduct of the accused, the prosecutor, and their counsel, is there even if the Judge is assumed, for the sake of argument, to be capable of looking at the case objectively even after reading news-paper comments. The submission made by Mr. Kesho Sahai, on behalf of the applicant, is that, according to the prosecution case itself, the applicant is a person who had become unbalanced and disturbed by her feelings. If that was so, the accused could become highly disturbed by the reports which have appeared in the press trying to lay bare her motive and her character, and to make comments upon the possible correct version. The mere possibility of affecting conduct of a party concerned is enough. Proof of actual effect is not required.
11. The opposite parties have tendered an apology described as 'unqualified.' As the publication is admitted, it is not necessary for me to discuss further the question whether contempt was or was not committed by the opposite parties. The question, however, has to be examined whether the contempt is grave and whether the apology is of such a nature that it should be accepted.
12. learned Counsel for the applicant has urged that the contempt is not only gross but the apology itself is of such a nature that it should be rejected outright. He had dealt with the statements of three opposite parties, who were allowed to be cross-examined as they had filed a joint counter affidavit. It may be mentioned here that, at the initial stage, even before the notice had been received by the opposite parties, Idris Dehlvi, opposite party No. 3, filed an affidavit, in which he stated that 'the Contempt of Court application appears to have been filed in order to Blackmail and vilify' opposite parties at the behest of some of their rivals in the business and to cause injury to their reputation' He then stated: 'A detailed counter-affidavit would be filed after obtaining copies of the contempt application and affidavit at the proper time. The opposite parties have never had the slightest intention of committing contempt of this Hon'ble Court.' Whatever may be said about the remaining part of the affidavit, the use of the words 'black mail' and 'vilify', with regard to the action of the applicant, was undoubtedly a piece of utter recklessness when, according to the opposite party No, 3, the contents of the application and affidavit had not even been seen or examined by the opposite party.
13. When the three opposite parties were cross-examined, it transpired that the opposite party No. 1, Smt. Zinat Kausar Dehlvi who took the legal responsibility upon herself, only as a joint editor, was really concerned with items relating to health, beauty, child care, and cookery. There is nothing here to belie her version that she works at her house and does not go to the office of the magazine situated at Asaf AH Road, Delhi. She also stated that she read the article mentioned above only after the magazine was published. In other words, so far as the particular article is concerned, she was not in a better position than an ordinary reader even though she accepted the responsibility in the eye of law as she was the joint editor.
14. Similar is the position with regard to Smt. Shamim Ara Dehlvi, opposite party No. 2, who is said to be the incharge of embroidery section of the magazine. She too apparently read the article only after it was published and had nothing to do with the acceptance of the article for publication or with its publication. Her evidence has also remained unshaken under cross-examination. I, therefore, accept the apology contained in the joint counter-affidavit filed by these two opposite parties and discharge the notices against them with a warning that they should be careful in future.
15. So far as Idris Dehlvi, opposite party Number 3, is concerned the position is different. He undoubtedly also took the responsibility upon himself for the publication of the article although he is not the writer of it. He stated that one Mr. Mehdi had brought this article to him and assured him that it was based upon other similar articles published dealing with the case of Shamim Rahmani, He stated that he had asked Mr. Mehdi the source of his information and was told that everything written there had already been published in the Blitz, Jagantara, and the Milap. He did not check up the assertions made by Mr. Mehdi and also put forward as a reason for not doing so, the fact that the material had already been published in so many journals. In other words, he accepted the representation that the report was in accordance with what was found in other journals. He stated that he had not seen the other articles. Nevertheless, he filed a number of articles, including one in the Illustrated Weekly of India of 6th of November, 1969. He stated, after filing these articles, that he had read these articles before giving his evidence in this Court. As there appeared to be a contradiction between what he had stated earlier and the subsequent statement, he was asked to explain. He stated that he must have mentioned, on the earlier occasion, the articles other than those which he was filing. The explanation is not very convincing.
16. The opposite party No. 3, however, did not appear to have come with any clear idea. When the particular passages front. the article had been put to rum, he said that they did not suggest that the murder was committed by Shamim Rahmani herself. He also said that they did not indicate any motive. According to him, they simply gave 'the definition of love and hatred,' I am not prepared to believe that the opposite party is so innocent about the actual implications of the article or the passages put to him. At least so far as the merits of the case are concerned, even if he did not know the meaning, it was his duty to have known this about the article accepted by him. He stated that he had published the article in response to the demand of some of the readers. He was not cross-examined as to what the readers wanted to know about the case. As an ordinary citizen, it was his duty to see that the so called 'truth' in the article, whoever was its writer, did not go beyond reporting actual proceedings or other facts which did not relate to the merits of the case. He already indicated, some of the conclusions arrived at in the article were not such as to be capable of being accepted as true even if they had put forward before a Court of law. For example no Court of law accepts what the split blood communicates apart from the fact that an injury was inflicted.
17. If the opposite party No. 3 was not aware that publication of an article of this kind, when a case is pending final decision on facts in a Court of law, is contempt of Court, It is high time that he was made to realise his responsibility in such a matter as he claimed to be an editor of a magazine which, according to him, is sober and serious.
18. One of the contentions advanced on behalf of the opposite parties was that the magazine is of limited circulation. It is said to be intended for women only, A copy of the 13th annual Report of the Registrar of Newspapares for India, 1969, published by the Ministry for Broadcasting and Information was placed before me to show that the Magazine Bano is a women's magazine. The necessary entries are at page 1097. The number of issues of magazine published for its subscribers and others in 1969 is given as 8916. The object of these statements was to indicate that the magazine, being intended only for women, could not have prejudiced a large part of mankind against the applicant. In this case, the applicant herself happens to be a woman. One of the contentions on her behalf is that she is likely to be affected in mind by the publication and this may affect her conduct with reference to the proceedings in this Court, Be that as it may, as already pointed out, the question whether the publication had actually affected her mind or not is not very material. The likelihood of its effect upon the applicant is enough.
19. Another submission made, in order to induce me to accept the apology of opposite party No. 3, was that the apology was unqualified. In the joint counter-affidavit filed on behalf of the three opposite parties also, the apology was tendered in the following words:-
That the deponents have no intention whatsoever of trying to justify their conduct on the footing that this Hon'ble Court is prima facie satisfied that the contents of the article might possibly tend to interfere with the course of justice and they tender their unconditional apology to this Hon'ble Court and assure this Hon'ble Court that no such article would ever be published in the magazine edited by them which might form subject matter of similar proceedings.
20. I have already accepted this apology as adequate in case of two opposite parties. The mere fact of an apolgy cannot, however, wipe off the gravity of a contempt. If that were so, contemners could always tender apologies and assume that the gravity of the offence is removed by such a ritualistic apology. This clearly is not the law. It is only where the apology is an indication of what Courts have described as 'condition', which follows from a full realisation of the nature of the offence committed, that it could be said to be genuine. In the instant case, the apology rests upon the statement that this Court is prima facie satisfied that the contents of the article might have possibly interfered with justice. The responsibility for taking such a 'prima facie' view, which is the 'footing' on which the apology rests, had been placed on the Court. I wonder whether this is not a dubious apology. There is no suggestion that the opposite party himself is conscious of the fact that a grave contempt has been committed by him. Moreover, the answers given by the opposite party No. 3 under cross-examination also do not indicate that he is conscious of the gravity of the offence of a contempt of Court. The reprehensible character of the offence arises from its tendency to interfere with the course of justice itself. The sentence passed should, therefore, be sufficient to make a person, who does not realise the nature of the offence or character of the wrong committed by him, to realise better the objects of law in making such an offence punishable.
21. The assertion of the opposite party No. 3 is that he had no intention to interfere with the course of justice. The intention could be taken into account in awarding the appropriate sentence. A case in which, for example, a direct communication to the Court intended to affect its decision, is grade, is much graver. But, counsel, prosecutors, witnesses, and the accused are participators in proceedings before the Court. The Court casts a cloak of protection around them so as to prevent any interference with the even course of justice. In the instant case, although there is no assertion that the applicant herself read the article, yet, the learned Counsel for the applicant has argued on the assumption that she had read it. In my opinion, it is not necessary to show that the applicant had read it. As already indicated, the mere possibility of affecting those persons who are concerned with proceedings and around whom the Court's cloak of protection is cast, is enough. The possibility of gravely disturbing the mind of the applicant was certainly present in this case.
22. Another contention seems to be that the contempt is mitigated by the fact that other newspapers and magazines had published similar accounts. A copy of the illustrated Weekly of India as well as copies of newspapers, like Milap and Indian Express, giving reports about the decision of the case by the Court of Additional Sessions Judge of Lucknow, have been filed. I find from these reports that most of them are confined to reporting what actually took place in the Court. Fair and accurate reports of proceedings are always protected both from proceedings for contempt as well as for defamation, it is not for me to decide here whether any other reports or accounts of the case, except the one given in the article before me, constitute contempt of Court. I may mention, however, that the account of the article under consideration could be said to be largely based on what is found under the heading of 'Tragedy of Shamim Rahmani' in an issue of Illustrated Weekly of India, mentioned above, it is accompanied by photographs. I have found that the article there gives the name of the reporter. I have also found that the sources from which the information of the reporter came are mentioned there although the article also contains a statement about the beliefs of 'those who know Shamim Rahmani.' I have also noticed that there is no indication there that there is any one, apart from witnesses produced, who could have witnessed any relevant facts. The article certainly ends with a question mark which shows that the judgment on the truth of the matter is still to be given. Although this article may have provided the basis for reconstructing the story of the applicant, as given in the magazine Bano, yet, the difference is marked by features already indicated above which make the article under consideration so reprehensible. An editor with a sense of responsibility would have at least marked this difference. In any case, the fact that other newspapares and magazines had published something similar could not mitigate the offence committed by the publisher in the instant case.
23. It is true that there is no previous conviction against the opposite party No. 3 who was not asked whether he had been guilty of any similar or other kind of contempt of Court. I, therefore, see no reason to reject the assertion of the opposite party that he had no intention to commit a contempt of Court. His assertion that no such contempt would be committed in future seems genuine.
24. Taking all the facts mentioned above into consideration, I think that mere acceptance of the apology tendered is not enough. It is not necessary here, it seems to me, to award a sentence of imprisonment. I think the ends of justice will be sufficiently served by awarding a substantial amount of fine so as to make the opposite party No. 3 realise the gravity of offence. Various cases have been cited before me to indicate what could be a suitable sentence. I consider that a fine of Rs. 1000/- to be paid by the opposite party No. 3, only, within one month from today, will meet the ends of justice.
25. The question has also arisen about the costs to be awarded to the applicant in this case. It is clear that the applicant had been compelled to come to mis Court because of the publication of the character indicated above. It may be said that applicant was not merely trying to vindicate her own right to the protection given to an accused as already mentioned above, but was bringing a violation of the law and a contempt of this Court to the notice of this Court. In these circumstances, I do not see any reason why the applicant should suffer the loss to which she must have been put in taking these proceedings in this Court. I, therefore, accept the submission of Mr. Kesho Sahai that the costs should be awarded to the applicant in the manner in which Bombay High Court awarded the costs in Har Gowandas v. Chimman Lai, (A.I.R. 1942 Bombay 86). It means the actual costs incurred by the applicant, should be awarded. The learned Counsel for the applicant has already filed his certificate of fee. As calculation of other expenses may involve some difficulty, expenses other than the counsel's fee will have to be borne by the applicant herself. The opposite party must also pay the costs of the State counsel. No table of fee to be awarded in such cases in this Court to State counsel or other counsel has been laid down. The learned brief holder for the State gets Rs. 50/- per day from the State for other work. Considering the amount of work put in by Mr. H. S. Abidi, the learned brief holder for the State. I award him two days fee, i.e., Rs. 100/-. The costs must be paid within a period of one month from today.