1. This is an application made by Krishnakant Vyas and C.M. Shah for a certificate under Article 134(1)(c) of the Constitution.
2. By an order of 23.4.1951 the petitioners Krishnakant Vyas and C.M. Shah along with one Shyamsundar Vyas were convicted for contempt of this High Court. Krishnakant Vyas and Shyamsundar Vyas were sentenced to one month's simple imprisonment each and C.M. Shah was ordered to pay a fine of Rs. 100/- or to undergo simple imprisonment for 15 days in default.
3. The contempt in respect of which they were convicted and sentenced consisted in a story written by Shyamsundar Vyas which cast foul aspersions on the integrity of one of the Judges of this Court in discharge of his judicial functions. The story was published in a Hindi daily newspaper issued from Indore whereof Krishnakant Vyas is the Editor and C.M. Shah the Printer and Publisher. Krishnakant Vyas and C.M. Shah have expressed their intention to appeal to the Supreme Court against our order and made the present application for grant of a certificate that the case is a fit one for appeal to that Court.
4. The applicants asked for a certificate on the following grounds:
1. That they were advised that this is a fit case for being taken in appeal to the Supreme Court as it involves questions of general importance, viz., the liability of the Editor and Printer when they were not connected with the work of press at the relevant time.
2. That the judgment of this Hon'ble Court assumes (when holding that the petitioners did not express regret after the comment appeared in the Indore Samachar) that the petitioners knew or had reason to think that the story 'gkrkad nkr' had reference to V.M. Mehta J. of the Madhya Bharat High Court.
3. That there is no ground for holding that the petitioners Krishnakant Vyas had knowledge of the comment in the Indore Samachar. The affidavit regarding this was filed at a very late stage and did not form subject of the rule.
5. There is also a prayer that Krishnakant Vyas be released on bail.
6. It is admitted that the jurisdiction exercised by the High Court under Article 215 of the Constitution is criminal jurisdiction and the matter in which the present application had been made is a criminal matter. Article 134(1)(c) of the Constitution confers a wide discretion upon the High Courts. Under it an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court if the High Court certifies that the case is a fit one for appeal to the Supreme Court. There is however nothing in the Constitution to indicate in what cases or classes of cases a certificate of fitness to appeal may be granted by the High Court.
7. Before dealing with the specific grounds raised by the application I shall briefly consider the conditions which must be fulfilled before the High Court will be justified, in granting a certificate under Article 134(1)(c). In the absence of anything in the Constitution to guide us in this matter the question should be determined on general principles and such inferences as may be drawn as to the nature and scope of the discretion conferred upon the High Courts from the existing criminal law of the country.
8. In our country all offences must be investigated, inquired into, tried or otherwise dealt with according to the provisions of the Code of Criminal Procedure (Section 5). The Code contains comprehensive and detailed provisions about appeals in criminal cases. It is clear that except as provided by the Code or any other law for the time being in force the decisions of the High Courts in criminal matters are generally speaking final. This finality was, before the present Constitution came into force, subject to three exceptions:
1. An appeal could be entertained against the decision of the High Court by the Judicial Committee of Privy Council in exercise of the royal prerogative on behalf of the Crown.
2. There was a right of appeal in a limited classes of cases against the decisions of the High Courts of Calcutta, Bombay and Madras under Clause 41 of the Letters Patent of the said High Courts; and
3. An appeal under Section 411A(4).
9. For obvious reasons there can be no question of appeal to the Judicial Committee of the Privy Council. Article 134(1)(c) of the Constitution however gives a right of appeal to the Supreme Court in criminal matters. There is another Article in the Constitution Article 136 under which the Supreme Court may in its discretion grant a special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in India. How the discretion conferred upon the Supreme Court will be exercised in criminal cases was indicated in the recent decision of that Court in - Pritam Singh v. The State : 1950CriLJ1270 . It was observed that in granting special leave in criminal cases though the Supreme Court was not bound to follow the decisions of the Privy Council too rigidly, it was not inclined to depart from the principles laid down by the Judicial Committee which should govern the exercise of discretion of the Court in grant of special leave to appeal in such cases.
10. These principles stated briefly and in very general terms are that there must be something which in the particular case deprives the accused of the substance of a fair trial and the protection of the Law, which, in general tends to divert the due and orderly administration of Law into a new course which may be drawn into an evil precedent in future, - Reg v. Bertrand (1867) 16 L.T. 752 (B) or if by a disregard of a form of legal process or by some failure of principles of natural justice or otherwise substantial and grave injustice has been done: - In re Dillet (1887) 12 AC 459 (C).
11. It was laid down in 'Pritam Singh's case (A)' that generally speaking Supreme Court will not grant special leave to appeal in criminal cases unless it is shown that exceptional and special circumstances exist, that substantial and grave in justice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against. It was further observed that the power with which the Supreme Court was invested under Article 136 should be execrated sparingly and in exceptional cases only. I am of opinion that these observations may well furnish some guidance to the High Courts in grant of certificates applied for under Article 134(1)(c). The language of Sub-clause (c) of Article 134(1) bears a close resemblance to that used in Clause 41 of the Letters Patent of the High Courts of Calcutta, Bombay and Madras and it may be permissible to refer to decisions given under that clause in this connection. It was held by a Bench of Bombay High Court in - In re Bal Gangadhar Tilak 33 Bom 221 (D) that before granting a certificate for leave to appeal the High Court must be satisfied that there is reasonable ground for thinking that grave and substantial injustice may have been done by reason of some departure from the principles of natural justice.
12. The High Court when considering an application for grant of a certificate under Article 134(1)(c) does not sit in judgment upon its own decision. It has however been authorized to grant a certificate of fitness to appeal to the Supreme Court in any case that it might consider appropriate. As was observed by me in - State v. R.B. Raj-kumarsingh AIR 1953 Madh B 35 (E), it would not be proper for any Judge to attempt to define in a few clear cut categories in what cases or classes of cases a certificate of fitness should be granted and thus to restrict the wide generality of the language advisedly used by the. framers of the Constitution. Every case should be considered on its own facts and circumstances, but a certificate should not be granted unless there is something exceptional or special in the case calling for a review of the decision of the High Court by the Supreme Court.
13. It might possibly be urged that cases where a person is convicted and sentenced for contempt of Court are of a peculiar nature, inasmuch as the High Court exercises a special jurisdiction in dealing with these cases and its decisions in such matters are not subject to any appeal or revision in the High Court itself. This is a reason why an application for a certificate of fitness in such a case should not be subjected to the same restrict scrutiny as in other cases. It is true that the High Court exercises a special and summary jurisdiction in cases of contempt of itself. But from the earliest times it was intended that the exercise of this jurisdiction should be made subject to review by an appeal and I entertain serious doubt whether a certificate of fitness can at all be granted in such a case except possibly under some extraordinary circumstance. It was observed in the case of - Rainy v. Justices of Sierra Leone (1852) 8 Moo PC 47 at p. 54 (F):
It is the opinion not only of the members of the Committee who heard the petition, but also of the other members who usually attend here, to whom the petition has been submitted, and we have had the benefit of their judgment as well as our own, that we cannot interfere with such a subject. In this country every Court of record is the sole and exclusive judge of what amounts to a contempt of Court.
14. That case was referred to as an authority by the Judicial Committee in the case of - McDermott v. The Justices of British Guiana (1845-47) 5 Moo PC (N S) 466 (G).
15. The question of competency of an appeal to the Privy Council in cases 6f conviction for contempt of Courts was raised in the last mentioned case. Lord Chelmsford who delivered the opinion of the Judicial Committee observed:
There could be no appeal against an order of a Court of record committing a person for contempt, and that, in order to support the propriety of the leave to appeal, the appellant must show either that the Court was not a Court of Record, or that, if it was a Court of Record, yet that there was something in the order committing the appellant which rendered it improper, and therefore the subject of appeal.
16. I do not think that the High Court would, be justified in applying to petitions for grant of a certificate under Article 134(1)(c) in cases of conviction for contempt of itself a standard of scrutiny different from that by which it judges applications for certificates of fitness in other cases.
17. These observations should in my opinion be borne in mind in considering a matter like the one before us. I will now turn to the facts of this case and to the grounds on which a certificate of fitness is applied for.
18. It was held by me that Shyamsundar Vyas was guilty of scandalizing this Court by imputing to one of its Judges dishonesty and corruption in the discharge of his judicial functions and was thus guilty of a gross contempt of Court, This foul aspersion was cast upon a Judge of this Court in a story written by Shyamsundar Vyas which was published in a special issue (Dipawali Ank) of Nai Duniya a newspaper of which the applicant Krishnakant Vyas is the Editor and C.M. Shah the Printer and Publisher. In fairness to Mr. Rege learned Counsel for the applicants, it may be said that he frankly conceded that if the present petitioners were technically guilty the story in question did not constitute contempt of Court. The plea put forward by Krishnakant Vyas was that 'he was in mourning during the period of the offending article and did not come to Nai Duniya Office and thus he had nothing to do with its publication'. In other words that the story was published in the Nai Duniya without the editor's knowledge. It has, however, been held by us that undoubtedly. Krishnakant Vyas was aware of the contents of the offending story within a few days of its publication. His ease was that according to the information received by him the name of Mehta J. had inadvertently crept into the publication; that this was 'a slip of pen' I however came to the conclusion that even after Krishnakant Vyas was aware of the mistake - if it was a mistake indeed - he decided not to correct it but to leave it as it was. In view of this conclusion I hold that the original want of knowledge of Krhhnakant Vyas at the time the story was first published lost all significance and that in these circumstances the plea of want of knowledge could be given no weight either as a defence absolving him from the liability for contempt of Court or as a circumstance mitigating the punishment to which he must have made himself liable.
19. I will now consider the grounds on which a certificate of fitness of the case for an appeal to the Supreme Court is applied for.
20. The first ground mentioned is that the case involves a question of general importance, viz., the liability of the Editor and Printer when they are not connected with the work of the press at the relevant time. I am clear that there is no substance in this ground. The law on the subject is well settled. The editor is a person who prepares the newspaper for publication. The printer and publisher as the name implies is the person who actually carries on the work of printing and publishing. It was observed so far back as 1899 by Lord Morris in - McLeod v. St. Aubyn (1899) A C 549 (562) (H):
A printer and publisher intends to publish and so intending cannot plead as a justification that he did not know the contents.
21. The same view was taken in - American Exchange in Europe Ltd. v. Gilling (1889) 58 L.J CH 706 (D):
Neither the printer nor the publisher can escape the liability by alleging that he did not know that the contemptuous words were inserted in his newspaper. See - Cheshire v. Strauss (1896) 12 T.L.R 291 (J); - R. v. Parke (1903) 2 K.B 432 (K); - Rex v. Davies (1906) 1 K.B 32 (L) and - Jones Ex Parte (1806) 33 E.R 283 (M).
22. These observations apply with equal force to an editor.
23. The next ground challenges a finding of fact arrived at by this Court on material on record. I am clear that this 'cannot constitute a good reason for granting of a certificate.
24. The third ground is also directed to disputing the correctness of the finding of this Court that Krishnakant Vyas in any case, even if we assume that he was originally not aware of the so-called mistake, which according to him had crept into the story became undoubtedly aware of it within a very few days of the publication of the offending story. This, like ground No. 2, cannot form the basis for grant of a certificate of fitness under Article 134(1)(c).
25. I am therefore of opinion that we will not be justified in the present case in granting the certificate of fitnes-3 applied for.
26. The application is rejected.
27. In view of the conclusion at which I have arrived there can be no question of releasing the petitioner Krishnakant Vyas on bail.
28. I may mention before bringing this order to a close that though none of the grounds mentioned in the application related to the severity of the sentence passed a fair part of Mr. Rege's argument at the hearing was devoted to this subject. I have given my reasons for inflicting the sentence passed in the present case in my judgment of the main case and have nothing to add to what I said there.
29. Mehta J.