1. A notice was issued to the non-applicants, Shri R. K. Karanjfa, Shri Sitaram B. Kolpe, and Sardar Balwant Singh, to show cause why they should not be convicted for contempt of Court under Sub-section (1) of Section 3 of the Contempt of Courts Act, 1952. The notice was issued at the instance of the original petitioner, Deo Ki Nandan Bhargava, who died during the pendency of these proceedings. The petition is now being prosecuted by Smt. padmavati Bhargava, his widow, by leave of this Court.
2. Non-applicant No. 1 is the editor, publisher and printer of the English Weekly 'Blitz' published from Bombay, non-applicant No. 2 is a special correspondent of the daily newspaper 'Press Journal' also published from Bombay; and non-applicant No. 3 is a special correspondent of the daily newspaper 'Hitavada' published from Nagpur.
3. The complaint against the non-applicants is that In the issue of 'Blitz' dated 25-3-1961, a news item appeared under the caption: 'Who set communal fires ablaze In Jabalpur?' It is alleged that the entire article in question was full of facts intentionally distorted with ulterior motives about the incidents in Jabalpur in general and the petitioner's family in particular; and that the writers of the article had intentionally commented upon a criminal case, in order to prejudice the public mind, before it was taken up for trial by the Court concerned.
4. On 3-2-1961, Kum. Usha Bhargava, aged about 20 years, committed suicide by burning herself to death at her house in Jawaharganj, Jabalpur, where she resided with her parents, though at the time of the incident her parents were away at Allahabad. The death occurred at 8-30 p. m. in Victoria Hospital, Jabalpur, where she had been removed for treatment. At the hospital, it is alleged, she was conscious for a long time and had made a dying declaration stating therein the cause which led her to commit suicide. On the basis of that dying declare tion, an offence was registered at police station, Lordganl, Jabalpur, under Section 376 read with Section 511 of the Indian Penal Code; and two persons, viz., Maksood and Latif, were arrested. On 4-2-1961, both the accused were produced in the Court of Shri J. P. Mishra, Magistrate First Class, Jabalpur, for the purpose of taking remand under Section 167 of the Code of Criminal procedure. The learned Magistrate remanded the accused to jail custody till 19-2-1961. On 20-2-1961, further remand was prayed for by the prosecution as the investigation had not been completed, which was granted till 6-3-1961. The period of remand was thereafter extended from time to time upto 184-1961.
5. On 25-3-1961, an article appeared in the English weekly newspaper 'Blitz' under the headiing 'WHO SET COMMUNAL FIRES ABLAZE IN JABALPUR?'. The writers of the article were non-applicants Nos. 2 and 3.
6. Giving the reasons for writing the article, the writers said:
'Puzzled by the sudden erruption of violence in this city, which had seen three serious communal riots within less than five years, we had been despatched hurriedly by our newspapers for an 'on-the-spot' inquiry.' In the course of the article, while admitting that they did not claim to have unravelled the tragic episode, the writers nonetheless considered that the facts they had, gathered and the conclusions they had drawn were sufficient to present a fairly correct account of the happenings at Jabalpur.
The article then proceeded to state these facts and conclusions in the following manner:
'On February 3 at 4 p. m., a 21 years-old, Hindu girl,Usha Bhargava was admitted to the Victoria Hospital withserious burns. She died later in the night and in herdying declaration, recorded in the presence of two neighbours and a doctor, mentioned that she had committedsuicide by sprinkling kerosene on her clothes after 'anattempt to molest her.' She was in too serious a condition to give a coherent account of the episode. She didnot even name the culprits, but the description of a youth said to have been given by her and the statement made by a neighbour led to the arrest of one Maksood, a son,of a leading bid! merchant, and another boy named Latif,the same night.' xx xx xx xx
'FRIENDS OF USHA'S SISTERS'
'We do not seek to raise a controversy over Usha Bhargava's background; but as her name Is being dragged to build up communal tension all over the country, we feel it necessary to report the facts brought to our notice regarding the Bhargava family.
At least one of the boys arrested in connection with the rape case was not a stranger to the Bhargava family. He was a friend of Usha Bhargava's youngest sister.
The Bhargavas live in a busy thoroughfare of Jabalpur, the Lordganj area. The alleged rape took place in the house itself when the girl's parents were away. The girl was brought to the hospital about 4 p.m. The father Devkinandan Bhargava, told us that the girl had not alleged an actual rape, but had in reply to a question alluded to an 'attempt at outraging her modesty.' He also confirmed that she had not named the culprits.'
'BOYS WERE REGULAR VISITORS'
'The two boys, Maksood and Latif, were arrested by the police on the basis of a statement by a neighbour who had claimed to have seen the boys around the place on February 3. There are several shops in front of the house, but none of the shop-keepers had seen the boys or had noticed anything untoward in the house till theynoticed smoke coming out of the bathroom.'
xx xx xx xx'Frequent visits of the Muslim boys to the locality where the Bhargava family lived, might have aroused the resentment of the Hindus in the locality. One of the two boys -- from the family of Anwar Khan, a wealthy iidi merchant - was said to be notorious for his exploits with girls. It was easy to give a communal slant to the popular dislike for the bad character of the boy.
According to some neighbours, Usha, who was a well-behaved girl, had resented the friendship of her sister with the Muslim boy, and the boys must have threatened her some harm. The other story was that she had also her own circle of friends.' '
'DYING DECLARATION SUPPRESSED'
'The post-mortem report in the case, according to the police, had also not established any positive proof. The girl was found to be 'not a virgin but one who wasexperienced sexually.' The arrested boys have denied the charge and given substantial alibis to prove their innocence. Under the circumstances, it is difficult to assertany definite cause which led the girl to commit suicide.
7. Non-applicant No. 1, Shri Karanjia, giving the reasons which prompted him to publish the article in hisweekly, on the front page of the same issue said:
'But Blitz's fight is against all forms of communalism Hindu as much as Muslim.........That is why the happenings at Jabalpur where Hindu communalism ran amock amongst innocent Muslims because of rape by a Muslim boy on a Hindu girl has come as a shock to us; the secrecy and silence that has been observed by the press has frightened us still more as to the motive of the communal forces. ...'
'Blitz Is taking the first step in this fight by publishing the full story of the happenings at Jabalpur asseen by reliable eye-witnesses whose integrity is abovereproach. ...'
8. In their replies to the notices to show cause, non-applicants Nos. 1 and 2, inter alia, contended.
(i) That they were unaware of the fact that a criminal case was pending against the accused, on the date of the publication, in the court of Shri J. P. Mishra, Magistrate first Class, Jabalpur or elsewhere.
(ii) That the article was written with the best of motive, viz., to fight communalism, and with a view to help the inquiry instituted by the Government of the State of Madhya Pradesh under the Commission of Enquiry Act, 1952.
(iii) That the facts and conclusions stated in the article were written objectively without any impropermotive and were based on information collected from theoriginal petitioner (D. N. Bhargava) and certain highpolice officers of the rank of Deputy Inspector-General of Police and Superintendent of Police.
(iv) That non-applicant No. 2 did not intentionally comment on the merits of the case in favour of the accused persons so as to create an impression prejudicing the public mind before the case was taken up for trial.
Non-applicant No. 3 filed no affidavit in reply to the show-cause notice; but his counsel Shri De stated at the bar that his defence was practically the same as that ot non-applicant No. 2.
9. On 18-9-1961, Shri De on behalf of the non-applicants, when the arguments were partly heard, offered an oral unconditional -apology and prayed for an adjournment to enable him to file written apologies on behalf of the contemners. On or about 26-9-1961, non-applicants Nos. 1 and 2 sent written apologies by post in the form of affidavits. Non-applicant No. 3, however, sent the apology in the form of a letter addressed to the Registrar of this Court written from New York as he was in the United States of America at the time.
10. The case was then taken up on 1-1-1962 and 2-1-1962, when Shri Mishra appeared and argued the case for non-applicant No. 1. None appeared for non-applicants 2 and 3 on these days.
11. A perusal of the article in question shows that the writers had specifically made the following allegations:
(i) That one of the arrested persons was not a stranger to the Bhargava family.
(ii) That Kumari Usha Bhargava, though she resented the friendship of her sister with the Muslim boy, had her own 'circle of friends' and that she was 'not a virgin but one who was experienced sexually.
(iii) That she had in her dying declaration not alieged rape but 'an attempt to outrage her modesty'; and that she had also not given the name of the culprit but had given the description of a young man.
(iv) That one of the accused, who was from the family of Anwar Khan, a wealthy bidi merchant, was notorious for his exploits with girls and that against both the accused a case had been registered some eighteen months back in which they had been seen in a cinema house with the girls of the locality, one of whom was Kumari Usha Bhargava's youngest sister, and that in that they had been fined Rs. 5/- each.
(v) That the accused had given substantial alibis.
(vi) That because of their bad character, it was easy to give communal slant to the popular dislike of the accused.
(vii) That a neighbour had claimed to have seen the accused around the house of the complainant on 3rd February, 1961; but that though there were several shops in front of the house, none of these shop-keepers had seen the accused.
(viii) That the arrest of the accused was on the basis of such a dying declaration and such a statement of a neighbour.
The innuendo thus was that Kumari Usha Bhargava and the accused were all persons of bad character; that the arrest of the accused, who had given substantial alibis, was on very insufficient and unsatisfactory evidence; and that all things considered, as the dying declaration and the statement of the lone neighbour were not worthy of belief, was difficult to assert any definite cause which led her to commit suicide, so that it was false to allege that the two Muslim boys (the accused) were guilty of an offence of attempting to commit rape on a Hindu girl.
12. In these proceedings, we are not concerned withthe truth or falsity of the various allegations and innuendoes. We have only to consider whether they were intended or calculated to prejudice a fair trial, and in our opinion, apart from intent, anything more calculated to prejudice a fair trial could not have been written and published. To cast serious aspersions on the character ofUsha Bhargava, who was dead and on whose statement thefate of the criminal prosecution depended, and on thecharacter of the accused who may have to face a criminal trial involving their life and liberty, cannot be justified on any ground. Nor can an attempt to malign aprospective witness -- the lone neighbour who claimed tohave seen the accused nearabout the house of UshaBhargava on 3-2-1961 -- by ridiculing him for being theonly person to have seen the accused on that day whenothers who are alleged to have been equally in a positionto do so had not so seen them, and further by imputingmotives to him by labelling his statement as being theresult of communal feeling be defended on any reasonable basis.
13. The learned counsel for the non-applicants, after the arguments had proceeded for sometime, realized the untenableness of the stand that he had first taken in trying to establish that the article in question did not contain any statement which could be said to prejudice a fair trial of the accused and fairly conceded that the criticisms and the innuendoes contained in the article could not be justified as a fair comment.
14. The Contempt of Courts Act, 1952 (Act No. XXXII of 1952), though it confers on the High Court the same Jurisdiction, power and authority in accordance with the same procedure and practice in respect of contempts ol Courts subordinate to it as it has and exercises in respect of contempts of itself, does not define what 'contempt of Court' is.
15. Oswald in his celebrated treatise on 'Contempt of Court' says that 'Contempt of Court is so manifold in its aspects that it is difficult to lay down any exact definition of the offence' (Third Edition, p. 5).
16. In the classical leading case, known as The St. James's Evening Post case: Roach v. Garvan, (1742) 2 Atk. 469: 26 ER 683, Lord Hardwicke, L. C., said:
'Nothing is more incumbent upon Courts of Justice, than to preserve their proceedings from being misrepresented; nor is there anything of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties In causes, before the cause is finally heard.'
Again at p. 684, classifying different sorts of contempts, he says:
'There are three different sorts of contempts. One kind of contempt is, scandalising the Court itself. Theremay be likewise a contempt of this Court, in abusing parties who are concerned in causes here.
There may be also a contempt of this Court, in prejudicing mankind against persons before the cause is heard.
There cannot be anything of greater consequence, than to keep the stress of justice clear and pure, thatparties may proceed with safety both to themselves and their characters.
The case of Rakes, the printer of the Gloucester Journal, who published a libel, in one of the Journals,against the Commissioners of Charitable Uses at Burford, calling his advertisement, A hue and cry after a Commis-sion of Charitable Uses, was of the same kind as this, and the Court in that case committed him.
There are several other cases of this kind; one strong instance, where there was nothing reflecting upon the Court, is the case of Captain Perry, who printed his brier before the cause came on the offence did not consist in the printing, for any man may give a printed brief, as well as a written one, to counsel; but the contempt of this Court, was prejudicing the world with regard to the merits of the cause before it was heard.
Upon the whole, there is no doubt, but this is a contempt of the Court.'
Giving reasons for Lord Hardwicke's direction that 'prejudicing mankind in favour of or against a party before the cause is heard' is contempt, in Re William Thomus Shipping Co., Ltd., (1930) 2 Ch 368, Maugham, J. said:
'....because . . ..injurious misrepresentations concerning parties may cause them to discontinue the action, or to compromise, or may deter other persons with good causes of action from coming to the Court.'
17. Speaking on the subject, Lord Russell, C. J. in ihe Queen v. Payne, (1896) 1 QB 577 at p. 580 said:
'Every libel on a person about to be tried is not necessarily a contempt of Court; but the applicant must show that something has been published which either Is clearly intended, or at least is calculated, to prejudice a trial which is pending.'
We are further of opinion that if the publication is intended or calculated to prejudice in general, it is immaterial whether any actual damage to the prosecution case is, in fact, proved.
18. The contemners in their returns have taken the plea that the 'cause was not pending', because the arrested persons had not till then been committed for that nor was their trial imminent, and consequently they could not be held guilty of contempt of Court.
19. The contention has no force. The accused had been arrested on 3rd February 1961. They were produced before Shri J. P. Mishra, Magistrate First Class, on 4th February 1961, charged with an offence under Section 376 read with Section 511 of the Indian Penal Code, for the purpose of taking a remand under Section 167 of the Code of Criminal Procedure. A remand of fifteen days was given, the maximum permissible under that section, and the accused were remanded to jail custody. Thereafter, till the publication of the offending article on 25th March 1961, the learned Magistrate had granted three more remands presumably under Section 344 of the Code of Criminal Procedure. Remands are judicial acts. The spirit of the Code is that the accused should be brought before a Magistrate competent to try or commit him with as little delay as possible, and consequently postponement of the commitment or adjournment of any enquiry or trial should be ordered by the Court only when there are sufficient and reasonable grounds for so doing. Postponement or adjournment is not as a matter of course, and the Court has to be satisfied on the material placed before it that sufficient evidence has been obtained to raise a suspicion that the accused may have committed the offence and that it appeared likely that more evidence may be obtained by such remand. Looking to the circumstances of the case, it cannot, therefore, be said that the criminal prosecution was not pending, on 25-3-1961 when the article was published in the 'Blitz', in our opinion it is not necessary for the pendency of a criminal cause that the accused should have been committed to the Court of Session for trial nor that the committalproceedings should have actually begun. It is enough that some Court which can deal with the matter judicially has seisin of the cause.
20. The learned counsel for the contemners relied on the observations of Chaturvedi, J. in Dwarka Prasad v. Krishna Chandra, AIR 1953 All 600 at pp. 602, 605, wherein the learned Judge said:
'. . . ..we find from the different provisions of the Code of Criminal Procedure given above that the Magistrate has actually been given power to direct investigations, and also to accept or not to accept a report of a police officer dropping the proceedings against a particular accused. It is quite obvious that an investigation is certainly the stage or proceedings before the case is taken to the Court, and the argument of the learned counsel would lead to the result that the 'Court' is required to pass orders, even before a case has been launched before it. The learned counsel for the applicant contends that as soon as a person had been arrested as a result of a report made against him, the case starts and any matter published with respect to that incident must be taken to have been published during the pendency of proceedings in a Court of law. In support of his contention the learned counsel has cited a number of cases if English Courts, but before proceeding to consider those cases it would be better to briefly mention the salient points of criminal procedure obtaining in England, as the procedure obtaining there is different in material particulars from the procedure obtaining in this country. . . .It would thus appear that a prosecution commences in England as soon as an information has been laid before a justice, or the accused has been brought to answer the charge, or, if there is no preliminary examination before the justice, when an indictment is preferred...., It would be very difficult to draw a line and to say that cases falling towards one side of the line are cases in which the cause was imminent and the cases falling on the other side are the cases in which the cause was not imminent. Extending the rule for the punishment of contempt of Court to cases which are imminent would unduly hamper with the freedom of speech of the citizen. In many cases, the citizen will have to take the risk of the Court coming to the conclusion that the case had become imminent, while he himself thought that it was not so imminent. It is a matter of every day occurrence that a Civil suit is thought of, but, ultimately, for various reasons, the idea has to be given up and the case is never taken to the Court at all. Similarly, in criminal cases, the accused persons are arrested by the police and at one stage the police is of the opinion that it would prosecute the arrested person; but subsequently, on the disclosure of some further fact or event, they decide not to take the case to the Court at an. At one time the case may appear to be imminent, but subsequently it may transpire that it was not fit for the charge sheet to be submitted to Court. An arrest in England might necessarily mean the institution of criminal proceedings subsequently, but it is not so in our country. The extending of the punishment for contempt to cases which are only imminent, in our opinion, is not justified on the circumstances as they exist in this country.'
21. With respect, we do not agree with the aforesaid observations. It is of little importance that the citizen win have to take the risk of the Court coming to the conclusion that the case had become imminent. On the other hand, it is of fundamental importance that the citizens with good causes of action are unhampered by any injurious misrepresentations concerning parties or their witnesses, which may cause them to discontinue their action or tocompromise. It is for this reason that prejudicing mankind in favour of or against a party before the cause is heard is held to be contempt of Court and is made punishable by summary proceedings. Consequently, as soon as a suitor has taken any effective steps in the prosecution of his case, the law extends its protection to him. In civil cases, the giving of a notice under Section 80 of the Code of Civil Procedure or any other statutory notice required by law, and in suitable cases even the giving of a private notice where a server's intention to file a suit is clearly discernible, or the filing of a plaint in Court would be such effective steps. In criminal cases, such a step could have been taken in the case of non-cognisable offences by the filing of a criminal complaint in Court, and in the case of cognizable offences by the making of a first information report. Subsequent arrest of the accused by the police during investigation would, therefore, be during the pendency of the cause. It may be that thereafter the investigation may prove abortive, the prosecution may be dropped, or the accused may be released; but the interest of justice would be better served by giving protection to the prosecution and the accused from unjustified attacks as long as the investigation has not ended. We do not see any justification for distinguishing between the English Law and the Indian Law on the point. In England also a person may be arrested without warrant and, after an arrest, the prosecution may be dropped for paucity of evidence; but that has never been considered to be a good reason for not considering the criminal cause pending.
22. The period between the taking of effective steps for the prosecution of a cause to the final determination of that cause by the Courts may be divided into two parts: one when the cause is imminent, i.e., before the cause has been put in Court, and the other when the cause is pending, i.e., pending in a Court competent to deal with it judicially. No hard and fast rule can, however, be laid down to determine the two positions. It shall depend and shall have to be determined on the facts and circumstances established in every case. It may, however, generally be said that a cause shall ordinarily become at least imminent as soon as a suitor to the cause has taken some effective steps manifesting his intention to get it adjudicated in a Court of law If found necessary. It has been held in a number of cases that as soon as a complaint is lodged in the police-station and an investigation started the matter becomes sub judice attracting the juridical power or this Court to punish for contempt: (Diwancnand v. Narendar, AIR 1950 EP 366, Rao Harnarain Singh v. Gurnani Ram, AIR 1958 Punj 273, Emperor v. J. Choudhury, AIR 1947 Cal 414, Mankad v. Shah Pranlal, AIR 1954 Kutch 2, State v. Editor, Printer and Publisher of Matrubhumi, (S) AIR 1955 Orissa 36 and R. K. Garg v. S. A. Azad, AIR 1957 All 37.) But, whatever difficulty there may be in determining 'when a criminal cause is Imminent' (as distinguished from 'when a criminal case is pending'), we find no warrant for the proposition that in order to attract our jurisdiction for contempt proceedings, the trial of the accused must be imminent In the sense that committal proceedings must have-been Instituted. We are further of opinion that in this case the question 'when a criminal cause is imminent' Is only of academic importance because so far as the facts of this case are concerned, by the production of the arrested accused before a Magistrate for remand the criminal cause was actually pending in a criminal Court competent to deal with it judicially. In this connection we may note in passing that we do not agree with the proposition enunciated in Dwarka Prasad's case, AIR 1953 All 600 that under the scheme of the Code of Criminal Procedurethe Magistrate deals with a criminal cause as an 'Administrative Officer' till such time as the actual trial begins before him or before any Court of competent jurisdiction. In our opinion, even when, in the words of the learned Judge in Dwarkaprasad's case, AIR 1953 All 600 a Magistrate, acting as an 'Administrative Officer', 'directs investigation of a case' before its being taken to the Court for the purpose of trial, he is required to deal with it judicially as a criminal Court within the meaning of the Code, and consequently when he has seisin of the case even for the purpose of 'directing investigation', the cause must be held to be pending in a Court. We may also note that the aforesaid observations in the Allahabad case were dissented from in Government Pleader v. Mathai Manjooran, AIR 1959 Ker 266 and (S) AIR 1955 Orissa 36 (supra).
In King v. Daily Mirror, (1927) 1 KB 845 at p. 851, Smith was arrested on January 9. On January 10, he was brought before the Justices and it was stated that another charge may be preferred. On January 13, the identification parade was held and on January 17, he was committed for trial. The offending photographs were published while, the identification parade was still pending; and Lord Hewart, C. J. held:
'We are not called upon to consider the question whether there may be contempt of Court when proceedings are imminent but have not yet been launched, tn the present case the question did not arise, for there was a charge and there had been an arrest, and proceedings therefore had begun.'
Though the learned Lord Chief Justice did not decide the question of imminence of criminal proceedings, he cited with approval the observations of Wills, J. in The King v. Parke, (1903) 2 KB 432 at p. 437, who, speaking for the Court (Lord Alverstone, C. J., Wills and Channell JJ.), said:
'Great stress has been laid by Mr. Danckworts 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.'
In Parke's case, (1903) 2 KB 432 answering the contention that there could not be contempt of Assize Court, unless the committal had actually taken place and a bill been found, the learned Judge (Wills, J.) said:
'A moment's consideration, it seems to us, is sufficient to dispose of such a proposition. The reason why the publication of articles like those with which we have to deal is treated as a contempt of Court is because their tendency and sometimes their object is to deprive the Court of the power of doing that which Is the end for which It exists namely, to administer justice duly, impartially, and with reference solely to the facts judicially brought before it Their tendency is to reduce the Court which has to try the case to impotence, so far as the effectual elimination of prejudice and prepossession is concerned. It is difficult to conceive an apter description of such conduct than is conveyed by the expression 'contempt of Court'. If it be once grasped that such is the nature of the offence, what possible difference can it make whether the particular Court which is thus sought to be deprived of its inde-pendence, and its power of effecting the great end for which it is created, be at that moment in session or even actually constituted or not? It is perfectly certain that by law it will and must be constituted, and that when constituted it and it alone can take cognizance of the particular offence which is the subject of the preliminary inquiry. The wrong can hardly be the less because the purpose of the tendency of the act complained of is that the Assize Court never shall have undisturbed power to fulfil its functions satisfactorily. The High Court exists always. To provide beforehand that one of its branches which, although it does not at the moment exist, yet must, both according to immemorial custom, and now also by statutes and rules having the same effect, come into existence, shall be hampered and hindered in the effectual discharge of its duties as soon as it is constituted, if called upon to try a particular case which it is at all events proposed to bring into that Court, is surely an offence against the Hlgti Court itself.'
23. We respectfully agree with the aforesaid observations. By the expression 'pendency of a cause in Court' what is meant to be emphasised is that the cause is not at an end. And further the fact that the criminal proceeding had not begun or that the committal had not taken place is of no importance because the law provides that if and when the Court' having jurisdiction gets seisin or the cause in respect of which the arrest had been effected and investigation undertaken, it shall not feel hampered or hindered in the effectual discharge of its task to do justice duly and impartially in accordance with the evidence brought before it.
24. It is then contended that the contemners had no knowledge of the pendency of the case in the Court of Magistrate First Class, Jabalpur. The original petitioner had sworn to the fact that he had himself informed non-applicants 2 and 3 of the fact that the accused had been remanded and that prosecution was imminent; but non-applicant No. 2 has denied it on affidavit. It is certainly remarkable that the non-applicants, who are experienced journalists and were undertaking a difficult and onerous role of reporting, even though incidentally, on a criminal cause in which the accused had been arrested, did not know that they (the accused) must have been produced before a Magistrate for remand as more than six weeks had passed from the date of the arrest of the accused. Their denial, therefore, does not inspire confidence and has to be discountenanced.
25. But, in our opinion, nothing turns on their denial, because knowledge of the pendency of a cause is not the sine qua non of the liability of the non-applicants for contempt. Answering a similar contention, Lord Goddard, C. J. in R. v. Odhams Press Ltd., (1957) 1 QB 73 at pp. 79, 80 and 81, said:
'We have then to deal with the submission made on behalf of the respondents by Mr. Gardiner that unless there was knowledge there can be no contempt. This can be summarized by saying that the contention is that mens rea is a necessary constituent of the offence. While this is at first sight an attractive argument as we are dealing with a criminal contempt which exposes the offender to a fine or imprisonment, in our opinion, a review of the cases shows that persons who publish matter of this description charging alleged offences against the criminal law do so at the risk of not only being sued for libel but also of being punished for contempt if the criminal law has been set in motion. And the same is true if civil proceedings havebeen started, at least if they are of a common law nature and may be heard before a jury. In this regard we may call attention to what was said by 'Maugham, J. in (1930) 2 Ch 368 at p. 373 as to the different way that the common law Courts and the Chancery Courts approach these matters because of the presence of juries in the former.
The first case to which we would refer is (1742) 2 Atk. 469 generally cited as the St. James's Evening Post case. The judgment of Lord Hardwicke L. C. in that case has always been regarded as the locus classicus on this subject. The publication with which he was dealing was said to be both a libel and a contempt of Court, and the Lord Chancellor refused to deal with it as a libel, as that was not a ground for interference by a Court of Equity, but he did hold it to be a contempt. The publisher was a Mrs. Read, on whose behalf it was argued that she did not know the nature of the offending article, but Lord Hardwicke said (ibid, p. 472) that it was urged 'that she did not know the nature of the paper; and that printing papers and pamphlets, is a trade, and what she gets her livelihood by. But, though it is true, this is a trade, yet they must take care to do it with prudence and caution; for if they print anything that is libellous, it is no excuse, to say, that the printer had no knowledge of the contents, and was entirely ignorant of its being libellous; and so is the rule at law, and I will always adhere to the strict rules of law in these cases. Therefore Mrs. Read must be committed to the Fleet, according to the common order of the Court upon contempts. This case was considered by Lord Erskine L. C. in Ex parte Jones, (1806) 13 Ves 23/. Here, again a libel on individuals was held also to be a contempt. After citing (1742) 2 Atk 469 (supra), Lord Erskine L. C. said (p. 239); 'As to the printers, as Lord Hardwicke observes, it is no excuse, that the printer was 'ignorant of the contents. Their intention may have been innocent: but, as Lord Mansfield has said, the fact, whence the illegal motive is inferred must be traversed; and the party, admitting the act, cannot deny the motive. The maxim actus non facit reum, nisi mens sit rea cannot be made applicable to this subject in the ordinary administration of justice; as the effect would be, that the ends of justice would be defeated by contrivance'. These cases clearly show that lack of intention or knowledge is no excuse, though it may have a great bearing on the punishment which the Court will inflict and, in our opinion, they dispose of the argument that mens rea must be present to constitute a contempt of which the Court will take cognizance and punish.
The test is whether the matter complained of is calculated to interfere with the course of justice, not whether the authors and printers intended that result, just as it is no defence for the person responsible for the publication of a libel to plead that he did not know that the matter was defamatory and had no intention to defame. It is obvious that if a person does not know that proceedings have begun or are imminent, he cannot by writing or speech be said to intend to influence the course of justice or to prejudice a litigant or accused person, but that is no answer if he published that which in fact is calculated to prejudice a fair trial. We would refer to the emphatic statement of the law by a judge of great eminence whose judgments are always received in this country with the highest respect, Palles C. B. in Rex v. Dolan, (1907) 2 Ir R 260, having posed the question whether a speech the subject of the motion would have a tendency to prejudice the fair trial of an indictment the Chief Baron said at p. 284: 'As to the law applicable to the case, there Is nodoubt. Actual intention to prejudice is immaterial. I wholly deny that the law of this Court has been that absence of an actual intention to prejudice is to excuse the party from being adjudged guilty of contempt of Court, if the Court arrives at the conclusion which I have arrived at, that there is a real danger that it will affect the trial: or that absence of intention is to excuse the party from punishment. Such a circumstance as that ought, no doubt, to be taken into consideration in considering the nature of the punishment to be awarded, as, for instance, whether it should be imprisonment. Again, this seems to dispose of any suggestion that mens rea, which means a guilty intention, is in any way material except as to penalty.
26. We respectfully agree with the aforesaid observations of the learned Lord Chief Justice of England. We may further add that the fact that causes both civil and criminal in this State are not usually tried by a jury does not detract from the weight to be attached to them. What the law guards against is a trial by newspapers when the criminal law has been set in motion and the that of the cause by one of the criminal Courts of the country is a near possibility. It is of utmost importance that the Court, which is ultimately called upon to adjudicate the matter, does so in a detached atmosphere, free of prejudice and preconceived bias. In Rex v. Editor of Evening standard, (1924) 40 TLR 833, the accused had been arrested on a criminal charge and was on remand while the investigation was in progress, when the contemners employed private detectives to investigate into the facts of the alleged crime and published, their results in their newspapers. Holding their conduct as a 'perilous adventure which they had undertaken at their own risk', the Lord Chief Justice of England, speaking for the Court fiord Hewart, C. J., Roche and Branson, JJ.), said:
'It was clear that some of these newspapers, as was shown by the materials before the Court, had entered deliberately and systematically an a course which was deserved by some of them as 'criminal investigation'. It was urged on behalf of one respondent on the previous day that it was part of the duty of a newspaper when a criminal case was pending to elucidate the facts. If he understood that suggestion when clearly expressed it came to something like this; that while the police or the Criminal Investigation Department were to pursue their investigations in silence and with all reticence and reserve, being careful to say nothing to prejudice the trial of the case, whether from the point of view of the prosecution or the point of view of the defence, it had come to be somehow for some reason the duty of newspapers to employ an independent staff of amateur detectives, who would bring to an ignorance of the law of evidence a complete disregard of the interests whether of the prosecution or the defence. They were to conduct their investigation unfettered, to publish to the whole world from time to time the results of these investigations, whether they conceived them to be successful or unsuccessful results, and by so doing to perform what was represented as a duty, and, one could not help thinking, to cater for the public appetite for sensational matter.'
xx xx xx xx'Those who had to judge by the results could see what a perilous enterprise this kind of publication was. It was not possible even for the most ingenious mind to anticipate with certainty what were to be the real issues, to say nothing of the more difficult question what Was to be the relative importance of different issues in a trial which was about to take place. It might be that a date, a place,or a letter, or some other one thing which, considered in itself, looked trivial, might prove in the end to be a matter of paramount importance. It was impossible to foresee what was important.' (P. 835)
27. Thus, at a time when it is impossible to Know with any degree of certainty what issues are going to be tried with what ultimate result, it would be dengerous to permit any activity which was likely to interfere with a fair trial fair both to the prosecution as well as the accused, because such a publication may result in the parties discontinuing action or to compromise it, or it may deter witnesses from coming forward to give evidence on one side or may induce them to give evidence for the other side alone, or it may embarrass the judge in trying the case, or it may even so prejudice the public mind that it may not receive the ultimate judgment with that respect which is its due. If the publication of an article in a newspaper, howsoever objective, which the contemners undertook at their own risk while the criminal law had been set in motion, has these results, we do not see how it is an answer to say that they never intended these results or that they had no knowledge that the cause was pending.
28. In T. B. Hawkins v. D. P. Mishra, ILR (1949) Nag 640 at p. 660: (AIR 1952 Nag 259 at p. 265), Hidayatullah, J. (as he then was) on a review of authorities on the subject said; .
'Thus, the Court has to see not only whether the comments interfere with the administration of justice but also whether they do so in a substantial way. I may say here again that the intention of the person making the comments is no more relevant than the occasion on which they are made. A person who comments on a pending case acts at his own peril and must answer if the incriminating matter tends in a substantial way to interfere with the administration of justice at any stage.'
Again in Wasudeorao v. Gopal, AIR 1951 Nag 368 Mudholkar, J. (as he then was), negativing the contention that the learned Judge, who had decided the case (Duncan v. Sparling, (1894) 10 TLR 353), had laid doown the proposition that
'When an impugned publication does in fact tend to prejudice a fair trial, the intention of the alleged contenner is a relevant factor' (p. 370), said:
'What I have quoted from the judgments of the two learned Judges who decided the case (Duncan v. Sparling, (1894) 10 TLR 353), ought to suffice to show that they never laid down that the intention of the contender is material even though a publication may tend to prepossess the minds of the public, the judge or the jury.' (p. 371).
He also cited with approval the observations of Hidayatullah, J. in Hawkin's case, ILR (1949) Nag 640: (AIR 1952 Hag 259), reproduced above.
This view was again reiterated in Ratnakar Jha v. K. S. Agarwal, AIR 1954 Nag 99 by Hemeon, Actg. C. J. and Bhutt, J.
29. Speaking on the subject, Narsimham, J. in State v. Editors and Publishers of Eastern Times and Prajatantra, AIR 1952 Orissa 318, said:
'The essence of the offence of contempt lies in the tendency to interfere with the due course of justice, and motive, good faith or absence of knowledge of the pendency are immaterial. The law regarding knowledge appears to haw been correctly pointed out by Byrne Q. C. in the aforesaid case of the Metropolitan Music Hall Co. v. Lake, (1889) 58 LJ Ch 513--
'To shew knowledge on the part of the offender is not an obligation laid upon the applicant, but to shew absence of knowledge is an obligation upon the offender if his offence is to be extenuated.' (p. 337)
Again, the same learned Judge in State v. Biswanath Mohapatra, (S) AIR 1955 Orissa 169, said:
'. . .the argument that knowledge of the pendency should, in all cases of contempt, be invariably proved seems to be based on a misconception of the law of contempt. The summary jurisdiction for punishing for contempt is exercised solely in the interests of justice with a view to prevent trial by newspapers or by the public of a cause that is pending in a Court of justice. The essence of the offence consists in the tendency or likelihood of the offending article to interfere with the course of justice. It may be that the publisher of the article had no intention to interfere with the course of justice. He might also have acted in good faith. But these considerations are immaterial and the only test is whether the publication is calculated or likely to interfere with the course of justice. The law on the subject has been so strictly applied as to fasten vicarious liability even on the proprietor of the newspaper who might have had no knowledge of the article itself. Thus, in the well known St. Jame's Evening post case, (1742) 26 ER 683, the plea that the printer had no knowledge of the contents of the offending article was not accepted.
This was followed in a very recent English decision Rex v. Evening Standard Co. Ltd., (1954) 1 All ER 1026, where a limited company (to which obviously no intention or knowledge could possibly be attributed, was held to be vicariously liable for the contempt committed by the editor of the newspaper in publishing an offending passage. Thus where absence of knowledge of the offending article has never been held to be a valid excuse, it is difficult to understand how want of knowledge of the pendency of the case can be held to exonerate a person from contempt.' (pp. 170-171).
30. We are of opinion that the aforesaid observations lay down the correct law. We, therefore, respectfully dissent from the cases relied on by the learned counsel for the contemners, e. g., Ramaswami v. Jawaharla! Nehru, AIR 1958 Mad 558 and State v. Faqirchand, AIR 1957 All 657. So far as they make knowledge of the pendency of criminal proceedings an essential prerequisite tor the offence of contempt of Court.
31. No doubt, in the Oswald's treatise on 'Contempt of Court,' Third Edition, p. 93, the statement occurs that in order to constitute contempt of Court, 'it must be proved that the comments were made with knowledge of the pending cause'; but the aforesaid statement appears to ba based on the observations of Chitty, J. in (1889) 58 LJ Ch 513; and as pointed out by Lord Hewart C. J. in the case of Odhams Press Ltd. (1957) 1 QB 73 (supra), he did not consider that case as well as In re Marquis Townshend, (1906) 22 TLR 341, which laid down the same proposition as qualifying the decision in (1742) 26 ER 683 (supra), as also the subsequent decision of the King's Bench Division in (1924) 40 TLR 833.
32. In Reg v. Duffy, (1960) 3 WLR 320 though it was held that, under the circumstances of the case, the offending publication did not constitute contempt of Court, it was again emphasised that the newspapers published such articles at their peril in regard to proceedings for contempt of Court or for libel, thereby implying that lack of knowledge was no excuse.
33. In our opinion, both on principle and authority we ought not to import the concept of mens rea in criminal contempts as thereby the whole purpose of the law of contempt would be materially defeated. It is a cardinal principle of criminal law that not only should justice be done but that it should be seen to be done; and it the publication in newspapers of such articles directly or indirectly undermines the confidence of the people in the administration of justice, in our opinion, it should be strongly discountenanced.
34. In the words of Lawrence, C. J. in People v. Wilson, (1872) 16 Am Rep. 528,--
'A Court will, of course, endeavour to remain wholly uninfluenced by publications like that under consideration; but will the community believe that it is able to do so? Can it even be certain in regard to itself? Can men always be sure of their mental poise? A timid man might be influenced to yield, while a combative man would be driven in the opposite direction. Whether the actual influence is on one side or the other, so far as it is fell at all, it becomes dangerous to the administration of justice. Even if a Court is happily composed of judges of such firm and equal temper that they remain wholly uninfluenced in either direction, nevertheless a disturbing element has been thrown into the council chamber, which it is the wise policy of the law to exclude.'
(see p. 331, 'Law of the Press' by Hale, Third Edn.)
35. It is then argued that what was written and published was written with the best of motives, to fight 'the monster of communalism by publishing the full story of the happenings at Jabalpur as seen by reliable eye witnessses whose integrity according to the editor Karanjia (non-applicant 1), was above reproach.'
36. At the moment, when considering the question of guilt only, we are not concerned with the bona fides of the writers or the publishers. It may be and we give them the benefit of doubt on this score that the contemners never intended to commit the contempt of Court, but intention alone is not the criterion of criminal liability. If the offending publication is calculated or has the tendency to interfere with the course of justice, its writer and publisher cannot escape liability.
37. It may be contended that the aforesaid view puts an undue restriction on the liberty of the press which in the proper exercise of its legitimate function has the legal right to propogate its views through the medium of the print. But a little reflection would show that there is no such antagonism between the requirements of justice and the liberty of the press as at first sight appears.
38. In Reg. v. Gray, (1900) 2 QB 36 at p. 40, itwas ruled that -- 'the liberty of the press is no greater and no less than the liberty of every subject of the Queen.' Translating this principle in terms of our Constitution we may say that in India also it is no greater or no less than the liberty of every citizen of the Republic. Consequently where the liberty of a citizen is involved, the freedom of the press can have no precedence over it and both are conditioned by a free judicial process through which these freedoms may, if necessary, assert themselves. Thus a free Press and a free judicial process are both necessary and essential adjuncts of our democracy. They are both means to an end -- the end, the ultimate object being a free society. In ultimate analysis, a free judicial process is of greater importance than a free press, for it is only through a free judicial process that the freedom of the press can, if necessary, be vindi-cated. In the administration of the criminal law the necessity for a free judicial process is all the greater because it is concerned with the life and liberty of a citizen. It must, therefore, work in an atmosphere tree from the control of the Executive, free from the control of party politics, free from fear of reprisal or hope ot reward from any source whatsoever, and free from all such influences as may consciously or unconsciously influence or interfere with its free exercise. Any writing or publication which may cramp or cripple the administration of justice must therefore be suppressed.
39. It cannot be denied that in these days press is a powerful instrument for influencing public opinion and consequently those who are in charge of it must display that sense of responsibility which persons possessing instruments of great potential danger are required to take. The degree of responsibility has to be in direct proportion to the capacity of the newspapers to do harm.
40. When a crime has been alleged to be committed, when two citizens had been arrested in connection with it and were on remand, and when police investigation was in progress, greatest care had to be exercised by newspapers in disseminating news with regard to the alleged crime which is under investigation, lest anything they may say or publish may adversely affect the prosecution or the accused. The press should, under such circumstances, refrain from giving publicity to its own version of facts and prejudices lest it itself becomes an unconscious propagandist of those very prejudices which it had set out to condemn. It is easy to see that when crimes are the results of communal passions or communal passions are the results of crimes, any taking of sides, or dissemination of facts however objective, before a criminal Court has pronounced its verdict, is bound to prejudice a fair trial. After all judges are human, as are the parties and the witnesses. It may be that judges are by Training and experience capable of taking care of themselves, so that they are not influenced or swayed by the prejudices created by the printed word. But can that be said of the witnesses, or the accused? Nay we may even say that it is difficult to predict if and how far the judges themselves are free from unconscious influences exerted by such dissemination of news. True it is that a criminal Court must decide a case on the basis of material brought on record in that case but is it wise to place before it through newspapers material which is not legal evidence and which may never come before it in the ordinary course at the trial. Our Courts have never countenanced trial by newspapers and in our opinion by such writings and publications, the newspapers do not help in the administration of justice but only pander to the idle and vulgar curiosity of people who desire to know before the matter comes out in the ordinary course in a Court of Justice. For the newspapers such publications shall, unless nipped in the bud, always prove a profitable source of advertisement as they satisfy the ordinary men's craving for sensationalism.
41. We are, therefore, of opinion that even with our strong belief in the liberty of the press, we cannot countenance such writings or publications which are an abuse of that liberty and amount to a contempt.
42. It was also contended that what was written and published may at worst be libel for which the applicant had his remedy under the ordinary law and that therefore no proceedings under the Contempt of Courts Act were warranted. It is settled law that our jurisdiction should be exercised in cases of real and serious moment when there has been a serious interference withjustice. If that is established, then notwithstanding the fact that the publication also constitutes a libel, this Court shall intervene and punish the contemner. In our opinion in the instant case, in publishing the alleged histories of the prisoners and of the complainant which would not be evidence in the case, and in commenting on the trustworthiness of the evidence which may be led in the criminal case, the contemners have been guilty of such gross and serious contempt that it becomes the duty of this Court to interfere and punish the guilty.
43. In the result we are of opinion that a contempt punishable under Section 3 of the Contempt of Courts Act 1952 has been committed by the publisher as well as by non-applicants 2 and 3. We convict them accordingly.
44. There now remains the question of sentence, we take note of the fact that the non-applicants were carried away by their unrestrained enthusiasm in doing what they considered to be a public duty, of countering the communal propaganda of some newspapers by the articles in question, even though as responsible newsmen they should have taken care to see that by their act they were not interfering with the , free administration of justice. We also note the fact that they have tendered a written and unqualified apology to this Court for their action, though the apology was tendered late when in the course of the arguments the learned counsel for the non-applicants realised the untenable position of his clients. it has been repeatedly pointed out that the apology to be genuine must be tendered at the earliest opportunity before the arguments begin and before the contemners discover that they have a weak case, and before the Judges have indicated a trend of their mind. 'It is intended to be evidence of real contriteness, the manly consciousness of a wrong done, of an injury inflicted, and the earnest desire to make such reparation as lies in the wrongdoer's power. Only then it is of any avail in a Court of Justice': (per Vivian Bose J. (as he then was) in Sub-Judge, Hoshangabad v. Jawaharlal, AIR 1940 Nag 407. Again according to Mahajan, C. J. in M. Y. Shareef v. Hon. Judges of the Nagpur High Court, (S) AIR 1955 SC 19.
'The proposition is well settled and self-evident that there cannot be both justification and an apology. The two things are incompatible. Again an apology is not a weapon of defence to purge the guilty of their offence; nor is it intended to operate as a universal panacea, but it Is intended to be evidence of real contriteness.'
45. Then again in cases of this sort where the contempt consists in interfering with the due course of justice by casting aspersions on the conduct of the complainant, the accused and the witnesses before the cause is heard, apology is really due to the deceased complainant Kumari Usha Bhargava whose character has been maligned; to the accused whose trial might have been prejudiced, to the witnesses into whose integrity unfounded suspicion had been cast, and lastly to the public whose interest its to see that justice is fairly administered. And to these no amends have been made. We find, in the written apologies tendered by the contemner no withdrawal of the offending statements contained in the article in question nor any expression of regret for the wrong done to them. So far as this Court is concerned it has no feelings in the matter except that as the custodian of the law and justice It has to pronounce on the conduct of the contemners when facts constituting contempt are brought to its notice.
As stated by Bose J. the apology to be genuine must show some real contriteness and an earnest desire to make sucn preparation as lies in the wrong-doer's power, and of thatthere is no evidence here. The contemners never appeared in person in this Court and sent their apologies through post. To us their written apologies appear to be more formal than real. It may be that they were not properly advised, but that by itself can be no excuse. Then again the returns filed by the non-applicants, in the first instance, apart from showing any contriteness, contained statements which were plain attempts at justification. The return of non-applicant 2, Kolpe, further showed that he felt himself justified in what he had written. He even went further and suggested that the High police Officials had told him that the accused had no case to answer. When called upon to file affidavits from persons concerned, his learned counsel admitted that it would not be possible for him to do so and that the Court had to take the word of the contemner for the statement he had made. We are of opinion that no greater mischievous statement could have been made to prejudice a fair trial which admittedly was pending then.
46. Considering all these circumstances we do not think that the apology can be accepted as purging the guilt.
47. Newspapers are not infrequently owned by wealthy proprietors who in the words of Darling J. in Ex parte Crippen, (1911) 103 IT 636 at p. 640, 'will take the chances of the fine, and pay it cheerfully and will not feel that they have then paid too much for the advertisement.' Consequently the proper punishment should be and would have been imprisonment and it may yet be one in case the punishment we are about to award proves insufficient or not sufficiently deterrent to prevent its repetition for one reason or the other. But we do not do so in this case in the hope that what we have said is a sufficient warning to all concerned.
48. Consequently, in our opinion, on the facts and circumstances of this case, a fine of Rs. 1000/- or, in default, simple imprisonment for a period of one month on non-applicant 1, R. K. Karanjia, and a fine of Rs. 500/-each or, in default, simple imprisonment for a period of one month each, on non-applicant 2, Sitaram B. Kolpe and non-applicant 3, Sardar Balwant Singh, shall meet the ends of justice. We order accordingly. The costs of these proceedings, including Counsel's fee of Rs. 100/-, shall be paid by the non-applicants to the applicant. The costs of the paper-book shall also be payable by the non-applicants.