1. The present proceeding was started on the report of the Sub-Divisional Magistrate, Titlagarh, dated 7-11-53, against the Editor, Printers and Publishers of two Oriya newspapers, the Matrubhumi and the Ganatantra of Cuttack, and Sri. Muralidhar Panda, a member of the Orissa Legislative Assembly.
2. It appears that a big reservoir had been built at Government cost at Dangarpara, P.S. Titlagarh, in the district of Bolangir. On 13-8-53 a F. I. R. was lodged at the police-station to the effect that on the previous night some persons had cut the Bundh of this reservoir as a result of which water had flowed out. The F.I.R. further stated that the lands of Satya Ganda, Lakpati Kumra, Jugi Kuer and Seetaram Bhoi, all of Dangarpara, had been submerged by the accumulation of surplus water in the reservoir; and it was suspected that the breach had been caused by one or all of the aforesaid persons.
The police investigated into the matter and submitted a charge-sheet on 20-10-53 against three persons. The charge-sheet was received by the Magistrate on 26-10-53 when cognizance of the case was taken and the accused persons were summoned. It appears that between 14-8-53 and 26-10-53, certain publications were made in the two Oriya newspapers which commanded a good circulation in the district of Bolangir. There were three publications in the Matrubhumi on 11th, 12th and 17th of September, 1953, respectively and there was one publication in the Ganatantra on 16-9-53. These publications form the subject-matter of the present proceedings.
3. It will be useful at this stage to reproducethe text of these publications. On 11th September,the following publication was made in the Matrubhumi :
In the year 1952, a reservoir had been constructed at an expense of Rs. 33,000/- at Dangarpara in the Titlagarh, Sub-Division of the District of Bolangir. This year there has been a breach there due to heavy rains. 15 days prior to this breach, on seeing the condition of the reservoir, Abdhul Sankh, Chintamani Subudhi of Dangarpara and Bhagaban Bag and others of Lakhana, apprehended a breach and approached the S. D. O. who did not allow the surplus water to escape. When there was excessive accumulation of water, the embankment could not withstand it and gave way'.
The next article which appeared in the Matrubhumi of the 12-9-1953, runs as follows:
'WHO IS RESPONSIBLE?
In the year 1952, a water reservoir was constructed at Dangarpara in the Titlagarh Sub-Division of Balangir on behalf of the Govt. at a cost of Rs. 33,000/- This has been breached this year as a result of heavy rainfall. As a result of this a sum of Rs. 33,000/- out of the money realised from the public at large by coercive means and deposited in the treasury has been thrown into water, who is responsible for this? Although the S. D. O. had been warned some days before the breach in the Bund, and although he had been requested to open a surplus escape to discharge the surplus water, did he act and did he draw the attention of the Govt. to this wrong? Let him give satisfactory explanation. If the Government and the concerned authorities knew beforehand (the public) what preventive measures they took? Now who is responsible for this loss? It is absolutely necessary that the Government should take proper steps for punishing the concerned persons, and for realising proper compensation (from them).'
The third publication in the Matrubhumi dated 17-9-53 is in the form of a letter and runs as follows :
'DANGARPARA IRRIGATION PROJECT,
I had sent a long statement to you over the situation arising out of the breach in the Dangarpara irrigation project in the Titlagarh Sub-division of the Bolangir District, in which attempts are being made to shield the Government Officers whose negligence is responsible for this loss by throwing unjustified accusations on certain innocent persons. But you have not published the said statement uptil today. In your news items from Bolangir appearing in the issue of your paper dated 10-9-53 and in the columns for comments of the Matrubhumi dated 12-9-53 you have given a faint indication of the same. But there is nothing in your writings about the main allegation which was contained in my statement. Therefore I hope if you publish my statement, the attention of the Government will be drawn and by that the class of persons who are being unnecessarily harassed will be saved, and steps also will be taken against those officers due to whose negligence Government have been put to so much loss. I shall discuss this matter in the ensuing session of the Legislative Assembly.
Sri Muralidhar Panda, M.L.A.,
The article which appeared in the Ganatantra of 16-9-1953, runs as follows :
In the year 1952, a water reservoir had been constructed at Dangarpara in the Titlagarh Sub-Division of the District of Bolangir by the Government at a cost of Rs. 33,000/-. There has been a breach due to heavy rainfall. It is heard that 15 days before the breach of this Bund, Abdhut Sankh, Chintamani Subhudhi and Bhagaban Das and others of Lakhana on seeing the condition of the reservoir apprehended a breach and brought it to the notice of the S. D. O. and requested him to open an escape for the discharge of the surplus water. But in spite of hearing this, the S. D. O. did not open an escape. When there was excessive accumulation of water, the Bund was unable to withstand and gave way.
It is heard that the S. D. O. in order to conceal his own fault is accusing Mangra Majhi of Bana Behal, Nilmani Mahakud of Jamsnabahal and Satya Ganda, Banamali Nariha and others of Dangarpara of the offence of cutting the Bundh and trying to create evidence by assaulting them through the police and by keeping watch (over the locality).
If actually the aforesaid persons had reported to the S. D. O. regarding the said Bund and the S. D. O. neglected in taking proper steps himself, Why he should not be responsible for this?'
4. The courts in India have applied the English common law relating to contempt of court, to cases in this country. In his well-known judgment in -- 'St. Jame's Evening Post case', (1742) 2 ATK 469 (A), Lord Hardwicke pointed out that there were three kinds of contempt, that is, (a) scandalizing the court itself; (b) abusing parties who are concerned in court, and (c) prejudicing mankind against persons before the cause is heard. In -- 'Bex v. Gray', (1900) 2 QB 36 at p. 40 (B), Lord Russell divided cases of contempt of court into two classes, viz., (1) any act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower his authority; (2) any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the court.
In this case we are not concerned with the first two kinds of contempt as defined by Lord Hardwicke, or with first class of contempt as defined by Lord Russell, We are concerned here with that class of contempt which has the effect of prejudicing or has reasonable tendency to prejudice the fair trial of cases. In connection with this class of contempt, a question has often arisen whether a proceeding should be actually pending in a court of law before any publication in respect of the subject matter of it can be said to interfere with the fair trial of the case, or, whether the person making such publication who knows or has reasons to believe that a proceeding in court is imminent in respect of the occurrence, can be said to commit the offence of contempt of court.
The English Courts have held that where a cause is imminent, and a publication is made with knowledge of such imminence, the jurisdiction of court to punish for contempt of court exists, for as Wills J. said in -- 'King v. Parke', 1903-2 KB 432 (C) :
'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.'
See also -- 'R. v. Daily Mirror', 1927-1. KB 845 (D), and the very recent case in -- 'Regina v. Evening Standard Co. Ltd.', (1954) 2 WLR 861 (E), in which Lord Goddard C. J., after tracing the whole history of the law of contempt affirmed the aforesaid view.
5. This view of the law has been adopted by the courts in this country in several cases : See -- Tuljaram Rao v. Governor of Reserve Bank of India', AIR 1939 Mad 257 (SB) (F); -- 'In re Subrahmanyan, Editor, Tribune', AIR 1943 Lah 329 (FB) (G); -- 'Emperor v. J. Choudhury', AIR 1947 Cal 414 (SB) (H), and also -- 'Supdt. and Remembrancer of Legal Affairs, Bihar v. Murali Manohar Prasad', AIR 1941 Pat 185 (I). Very recently a Bench of this Court considered this matter, and after reviewing all the relevant authorities on the subject, came to the conclusion that a letter written by a Deputy Secretary to the Government to the District Magistrate in respect of a proceeding & the endorsement made thereon by the District Magistrate in relation to a proceeding, which was on the face of the letter Imminent, constituted contempt of court. Mohapatra, J. who delivered the judgment held that
'If a person making a publication, which is likely to interfere with the fair trial of the case, is aware that a proceeding is imminent, then the offence is complete, and it is not essential that the case must be pending.'
See -- 'State v. Radhagobinda Das', AIR 1954 Orissa 1 (J).
6. Before dealing with the question whether the publications in question amount to contempt of court, it is better to deal with the interesting argument which has been advanced by Mr. M.S. Mohanty, learned counsel for the Editor, Printer and Publisher of Ganatantra and for Sri Muralidhar Panda, to the effect that the law of contempt as recognised in England and as applied to India by the various High Courts must be deemed to have undergone a serious change in the light of the present Constitution. Article 19(1)(a) guarantees freedom of speech as a fundamental right and the only limitation upon that fundamental right is to be found in Clause (2) of Article 19 which runs as follows :
'Nothing in Sub-clause(a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security 'of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.'
Mr. Mohanty argues that so much of the law of contempt as can be said to have imposed 'reasonable restrictions' on the exercise of the right of freedom of speech, can be said to have been saved by Clause (2) of Article 19 and that part of the law which does not satisfy the test of reasonableness must be deemed to be invalid. As to what is 'reasonable restriction' on the right of freedom of speech, Mr. Mohanty argues that the Courts in this country should adopt the decisions of the Supreme Court of America on this point. And according to him, the only test of 'reasonableness' is whether the impugned article constitutes a clear and present danger to the prosecution of the cause.
In other words, his argument is that unless a cause be actually pending before a court of law, no offence of contempt of Court can be committed, merely because a proceeding is imminent and is likely to come before a Court for trial. The cases referred to above which lay down that if a cause is imminent, any comment in respect of it would constitute contempt of court, are no longer good law after the passing of the Constitution. In other words, Mr. Mohanty's contention is that the publications must answer to the 'clear and present danger test' laid down by the Supreme Court of America.
7. Before examining the validity of this argument, we may first examine the provisions of Article 19 of the Constitution on which Mr. Mohanty so strongly relies. Article 19(1)(a) guarantees the right of freedom of speech, which expression Includes the freedom of the press also. I have already quoted the provisions of Article 19(2) as ft stands after the First Amendment of the Constitution. Reading this clause as a whole, there is room for argument that the sub-clause
'in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of etc...',
does not relate to the law of contempt of court : for if we take away the words 'security of the State, friendly relations with foreign states, public order, decency or morality' the remaining portion of this clause does not make good English and conveys no meaning. After omitting this sub-clause Clause (2) of Article 19 would read as follows :
'Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause ...... in relation to contempt of court, defamation or incitement to an offence.'
Read in this way, Clause (2) as I have said, does not sound to be good English and conveys no meaning. Therefore, one way of reading Clause (2) is that the words 'in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause' do not relate to any existing law, or do not prevent the State from making any law in relation to contempt of court, defamation or incitement to an offence. ' It is, however, unnecessary for the purpose of the present case to decide this point; for even assuming that the Constitution makes the existing lawrelating to contempt of court, subject to reasonable restrictions on the exercise of the right of freedom of speech we are inclined to think that the whole of law of contempt of Court, as it stood on the date of the coming into force of the Constitution, answers the test of reasonableness. As I have already indicated, and as was also pointed out by my Lord the Chief Justice in the case of -- 'Bijoyananda Patnaik v. Balakrushna Kar', AIR 1953 Orissa 249 (K), the power to punish for contempt of court is inherent in a Court of Record and this has been recognized from the earliest times in England. The High Courts in India were created Courts of Record by several Letters Patents. By the Government of India Act, 1935, as welt as by Article 215 of the Constitution, the Supreme Court of India and the High Courts are the Courts of record, and it is essential for the administration of justice and protection of individuals that the Courts should be able to punish summarily acts of contempt, because in the words of Blackstone 'this power is an inseparable attendant upon every superior Tribunal.'
8. Mr. Mohanty very strongly relies on --'Bridges v. California', (1941) 314 US 252 (L). In that case after his conviction under certain labour laws, while a motion for a new trial was pending regarding a dispute between an A. P. of Labour Union and a C. I. O. Union of which Bridges was an officer, he either caused to be published or acquiesced in the publication of a telegram sent to the Secretary of Labour in which he threatened that if the Court's order convicting him would be given effect to, there would be a strike. The question was whether under those circumstances Bridges was guilty of contempt of court.
The courts in California had held that he was guilty of contempt of court, and thereupon Bridges perferred an appeal to the Supreme Court of the United States. The Court consisted of nine Judges, five of whom constituting the majority allowed the appeal and the majority Judgment was delivered by Black, J. whereas the minority Judgment was delivered by Frankfurter J. Black J. pointed out that the English common law according to which if a publication had reasonable tendency to interfere with the due course of Justice, it amounted to contempt, could not be applied to America, where, by the very Constitution the Legislature had been prohibited from making any Jaw abridging the freedom of speech or of the press.
According to his Lordship, the right of freedom of speech was only subject to the Fourteenth Amendment of the Constitution which provides that no State shall deprive any person of life, liberty or property without due process of the law. His Lordship further pointed out that in the case before them there was no direction by the Legislature of California that a publication outside the Court room which commented upon a pending case in a specified manner should be punishable.
His Lordship referred to -- 'Cantwell v. Connecticut,' (1939) 310 US 296 at pp. 307, 308 (M), and pointed out that had there been such a declaration of the State's policy by the Legislature of California, it would have weighed heavily in any challenge of the law as infringing constitutional limitations, but the problem was different where the Judgment was based on a common law concept of the most general and undefined nature. His Lordship then pointed out after some discussion that
'to assume that English common law in this field became ours is to deny the generally accepted historical belief that one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press,' (See pp. 264-265).
His Lordship further laid down :
'Moreover, the likelihood, however great, that a substantive evil will result cannot alone justify a restriction upon freedom of speech or of the press. The evil itself must be substantial (See p. 262).'
Following -- 'Schneck v. United States', (1918) 249 US 47 (N), his Lordship held that the Court must determine whether or not the words used were used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils.
9. Mr. Justice Frankfurter who delivered the minority judgment pointed out at p. 296 as follows:
'The phrase 'clear and present danger' is merely a justification for curbing utterance where that is warranted by the substantive evil to be prevented. The phrase itself is an expression of tendency and not of accomplishment and the literary difference between it and 'reasonable tendency' is not of constitutional dimension,''
At pp. 303-304 his Lordship observed :
'The question concerning the narrow power we recognise always is -- was there a real and substantial threat to the impartial decision by a court of a case actively pending before it? The threat must be close and direct; it must be directed towards a particular litigation. The litigation must be immediately pending. When, a case is pending is not a technical, lawyer's problem but is to be determined by the substantial realities of the specific situation.'
In our opinion, it is difficult to follow the majority judgment in 'Bridge's case (L)'. The American Constitution guarantees absolute freedom of speech and of the press subject only to the condition provided for by the fourteenth Amendment that 'No' State shall deprive any person off life, liberty and property without due process of the law'. That is why Mr. Justice Black said :
'It is to be noted at once that we have no direction by the legislature of California that publications outside the court-room which comment upon a pending case in a specified manner should be punishable.'
If the Legislature of California had framed such a law, then perhaps Mr. Justice Black's decision would have been otherwise; for, in that event, the requirements of the Fourteenth Amendment providing for the due process clause could have been satisfied. With great respect, we have come to the conclusion that the minority judgment of Mr. Justice Frankfurter has put the case correctlyby stating that the question to be considered is whether there was a real and substantial threat to the impartial decision by a court of a case actively pending before it, and that the question 'when a case is pending is not a technical, lawyer's problem, but is to be determined by the substantial realities of the specific situation'. I have again quoted it at the risk of repetition to make my point clear.
10. According to our Constitution in whichever way Article 19(1) and 19(2) are interpreted, they certainly do not confer upon the citizen an unfettered right of freedom of speech. That right is always subject to the reasonable restrictions put by any existing law or by any Legislature by framing a law relating to contempt of court. The question is whether the right of the Court to punish for contempt when a publication is made respect of a proceeding which the writer knows to be imminent, is a reasonable restriction upon the right of freedom of speech. To my mind, if we have the interest of fair administration of justice in view, such a limitation on the right of freedom of speech or freedom of the press cannot but be held to be reasonable. If immediately after an occurrence takes place and before the police complete the investigation and submit the charge-sheet, publications are made in newspapers concerning the truth or falsity of one version or the other, such publication is bound to react on the minds of the witnesses and Jurors. If such publications emanate from persons exercising high influence in public life, they may, in certain circumstances, also overawe the Magistracy. Therefore, in our opinion, the publications by a person with the knowledge that a proceeding is imminent, regarding the truth or falsity of rival versions in respect of any occurrence, have the clear and substantially reasonable tendency to interfere with the fair course of Justice, and as such should be held to constitute contempt.
11. Mr. Mohanty then relied upon the decision in -- 'State of Madras v. V.G. Row', AIR 1952 SC 196 (O), for his contention that the law of contempt, in so far as it punishes persons who publish matters relating to an occurrence with the knowledge that judicial proceedings are imminent, is unreasonable, as it does not satisfy the test of reasonableness laid down by their Lordships of the Supreme Court in the above noted case. He contended that the offending publications must tend to have substantial interference with the course of justice, otherwise a publication cannot amount to contempt of court. But their Lordships however pointed out that :
'It was important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter Into the judicial verdict'
As pointed out by their Lordships of the Supreme Court in the passage quoted above, each statute has to be judged by itself to see whether the restrictions imposed by it on a fundamental right guaranteed by the Constitution are reasonable or not. That is the function of the Judge having regard to all the circumstances enumerated by their Lordships in the aforesaid passage. Having the highest regard to the principles laid dawn by their Lordships in the aforesaid passage, we are of opinion that the whole of the law of contempt as has been laid down by Judicial decisions should be held to impose 'reasonable restrictions' on the' fundamental right of freedom of speech.
12. The learned Government Advocate has drawn our attention to the case -- 'Lakhan Singh v. Balbir Singh', AIR 1953 All 342 (P). The question as to whether, the law of contempt as laid down by British and Indian Courts answers the test of reasonableness imposed by Article 19(2) of the Constitution was argued in that case. Reliance was placed in that case on Bridge's case (L) referred to above. Their Lordships referred to a later case of the American Supreme Court, --'Craig v. Harney', (1947) 91 Law Ed. 1546 (Q), and pointed out that there was still strong difference even in America about the application of the clear and present danger test to cases of contempt. Their Lordships said:
'We are not bound to apply any such test. Conditions in India are different from those prevailing in America. The language of our Constitution after the amendment of Article 19 requires us to see whether the restrictions are 'reasonable'. As we have already stated, we think the restrictions placed by the law of contempt as it is understood in England and in this country are 'reasonable'.'.
Their Lordships further held that the whole of the law of contempt as laid down by British and Indian Courts imposed nothing but reasonable restrictions on the exercise of the freedom of speech, and therefore, the previous law continues In force even after the amendment of Article 19 by the Constitution First Amendment Act. With due respect we entirely agree with the conclusions of their Lordships.
13. The sheet-anchor of Mr. Mohanty is the decision in -- 'Dwarka prasad v. Krishna Chandra', AIR 1953 All 600 (R). Apparently that decision supports his contention that contempt proceedings cannot be started in connection with the publication of news or articles when a criminal case is under investigation by the police and has not actually come to the Magistrate's court for enquiry or trial.
The offending articles in that case were published when the police were investigating the offence about which there was a case and also a counter-case, and the police had not till the publication of the articles submitted the charge-sheet or the final report. Their Lordships held that since no proceeding was pending in court, the publications cannot be said to amount to contempt of court, Their Lordships distinguished the English decisions which have held that contempt proceedings can be started in respect of publications which nave a reasonable tendency to interfere with thefair course of trial, and where proceedings were imminent, on the ground that the criminal procedure in England was different from that obtaining in India.
Their Lordships further held that when a Magistrate acts under Chap. 14 of the Cr. P. C. he acts not as a Magistrate, but as the executive head of the Sub-Division. With great respect, we think, that the propositions laid down by their Lordships of the Allahabad High Court in this case, have been too broadly stated. A Magistrate who remains as the head of the investigation under Chap. 14 of the Cr. P. C. does not act as an executive officer, but as a Magistrate. This would be clear from the language of Section 155, Cr. P. C. itself which runs as follows :
'Section 155(1). When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter in a book to be kept as aforesaid, the substance of such information and refer the informant to the Magistrate.
(2) No police-officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class having power to try such case or commit the same for trial or of a Presidency Magistrate.......'
It would be seen that the Magistrate referred to in the aforesaid section is not the head of the executive administration but a Magistrate having power to try cases or committing a case for trial. Similarly Section 156, Clause (3) says :
'Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.'
There cannot be any doubt that the word 'Magistrate' in that section refers to the Magistrate who had authority to exercise judicial powers. In this way, if all the relevant provisions of Chap. 14 where any reference has been made to a Magistrate are examined, it would be seen that the word 'Magistrate' is used in that chapter as an authority who has at some stage or other exercised or is to exercise judicial functions in relation to the subject-matter of the suit. The English procedure with regard to taking cognizance of cases may be different. But that, in our opinion, would not make any difference in the law relating to contempt of court.
The question whether proceedings are imminent in any particular case, will always be a question of fact. There may be cases, where in spite of the fact that a F. I. R. has been lodged before the police, proceedings may not be said to be imminent; for example, if the F.I.R. does not disclose the names of the accused persons and the police find that there is no evidence in support of the occurrence and submit a final report, it may perhaps not be, in those circumstances, said that proceedings are imminent. Each case will depend upon its own facts; and we are not prepared to lay down a broad proposition that until a case actually comes before the Court and the Court takes cognizance either upon a complaint or upon a charge-sheet or otherwise, proceedings in contempt cannot be started.
Their Lordships of the Allahabad High Court have, if I may say so, rightly pointed out in'Dwarka Prasad's case (R)', itself that it will be very difficult to draw the line and to say that cases falling on one side of the line are cases in which the cause was imminent and the cases falling on the other are the cases in which the cause was not imminent. The task may be difficult but nevertheless, the Courts have to under-take that responsibility and decide on the facts of each case whether a cause was imminent, or not, and whether the offending publications amounted to contempt of court or not.
14. Mr. Mohanty then points out that the journalists would be faced with immense difficulties in deciding as to whether in publishing certain matters they have crossed the line or not. This is the practical difficulty which has also been pointed out to some extent in Bridge's case (L); (See pp. 267-269). This practical difficulty, can easily be solved if journalists keep themselves within the bounds of discharging their proper functions by publishing news about current events without offering comments about the truth or falsity of rival versions of an occurrence. The public are concerned with news and it is the duty of the journalists to cater to the needs of the reading public by furnishing current and important news of the day. But where from the nature of the event, it is clear that proceedings in court are imminent, they ought not to publish anything which would prejudice, the mind of the reading public either in favour of or against a particular version; nor should they go out of their way to attribute motives to authorities in respect of such events regarding which proceedings in Court may be imminent. Once this is borne in mind, we think no difficulty will arise in the way of the journalists.
15. Mr. Mohanty next contended that although the Contempt of Courts Act of 1952 makes contempts committed in relation to proceedings before subordinate Courts punishable, there is no definition of the term 'contempt of court' either in that Act or in the Constitution and as such, Mr. Mohanty argues, the High Courts cannot in practice punish for contempt of subordinate courts. He relies upon the argument advanced by Mr. Pathak in the Pull Bench decision of Allahabad High Court in -- 'State v. Brahma Prakash', AIR 1950 All 556 at p. 559 (FB) (S). But this argument was repelled by that very Pull Bench decision itself. 'Contempt of Court' is a phrase which has been used for centuries and judicially interpreted both in England and in this country. The Legislature while passing the Contempt of Courts Act, 1952, and the framers of the Constitution while using that phrase in the Constitution, certainly used it in the sense in which it was understood at that time. There is a well-known principle of construction that where the Legislature uses in an Act a legal term which has received, judicial interpretation, it must be assumed that the term is used in the sense in which it has, been judicially interpreted; (See Craies on Statute Law, 5th Edn. 158). Therefore, in our opinion, there is no substance in this part of Mr. Mohanty'a argument.
16. Having thus disposed of the Questions of law that were argued at the Bar, I now proceed to discuss whether the publications in question amount to contempt of court. Mr. A.K. Roy appearing for the Editor, Printer and Publisher of the Matrubhumi urged that the first two publications do not contain any material to show that the previous letter referred to in the letter of Sri Muralidhar Panda which was published on 17-9-1953, had reached the Editor and as such, his clients had no knowledge that a criminal case was imminent and therefore, they cannot be held guilty of contempt of court.
It appears however from the letter of Sri Muralidhar Panda dated 14-9-1953 (Ext. 3) which was published in the Matrubhumi dated 17-9-53 that the first two publications had given faint indications of the comments contained in the earlier letter of Sri Panda. This fact indicates that the earlier letter had already reached the Editor, but perhaps he was hesitating whether he would publish it in full and therefore, he simply published a gist of it in the issue of the Matrubhumi dated 11th and 12th September. It may be noted that the publication in the Matrubhumi of the 11th September was in the form of a news item whereas the publication on the 12th September was in the nature of a short editorial comment.
The learned Government Advocate contends that the first two publications by themselves may not amount to contempt of court, but taken with the third publication, viz., the letter of Sri Muralidhar Panda dated 14-9-53, which was published in the Matrubhumi of the 17th (Ext. 3) they certainly have the clear and reasonable tendency to interfere with the fair course of justice and as such amount to contempt of court. We think there is considerable force in this contention. In the letter of the 14th Sri Panda directly states that unnecessary accusations have been made against innocent persons in order to cover up the negligence of those officers due to whose negligence such a loss has occurred; and he further complains that Ms main accusation which was contained in his earlier letter had not been published, and he requested the Editor, to publish the earlier letter so that the attention of the Government may be drawn towards it and the class of persons who were being unnecessarily harassed shall also be saved. He further said that he proposed to agitate this matter in the ensuing session of the Orissa Legislative Assembly. Reading this letter as a whole, there cannot be any manner of doubt that by referring to the unwarranted accusations against innocent persons with a view to screening the officials, the writer referred to the case which was pending Investigation before the police and as such I am of opinion that the contention of the learned Government Advocate that all the three publications taken together constitute contempt of court, should be accepted.
17. Mr. Mohanty who appears for Sri Muralidhar Panda and for the Editor, Printer and Publisher of Ganatantra, raised various questions of law which I have already dealt with. So far as the letter of Sri Panda is concerned, Mr. Mohanty argues that there is no direct reference to the criminal case in the said letter. I have already pointed out that reference to unnecessary accusations against innocent persons with a view to cover up the negligence of Government officials refers only to the criminal case which had already been started, as a result of the F. I. R. dated 13-8-53. Under those circumstances, it is not possible to accept the contention of Mr. Mohanty that the letter of Sri Muralidhar Panda dated 14-9-53 has no reference to the criminal case. The publication in the Ganatantra dated 16-9-53 contains direct reference to the criminal case; it says:
'The S. D. O. has falsely accused Mangra Majhi of Banbahal, Nilmani Mahakur of Jamnuabahal, and Satyaganda and Banamali Nariha of Dangarapara in the case of cutting of the Bund with a view to screen his own fault, and is getting those persons assaulted through the police and trying to get up witnesses.'
Under the circumstances of the case, this can only have reference to the criminal case which was pending investigation before the police and in respect of which proceedings in court were imminent. Mr. Mohanty suggested that the reference in the publication in Ganatantra is to the Sub-Divisional Officer as the opposite party and not to the Sub-Divisional Magistrate as a Court. We are to see in what way this publication was to affect the minds of the public of Titlagarh and whether having regard to the fact that Titlagarh is a small place in the District of Bolangir the persons responsible for the publication cart be said to have knowledge that proceedings in court were imminent, in our opinion the distinction which Mr. Mohanty wants to make between the functions of the Sub-Divisional Officer and the Sub-Divisional Magistrate, is not of much, avail to the opposite parties.
It is true that under the Cr. Procedure Code it is the Sub-Divisional Magistrate who is in control of the investigation conducted by the police under Chap. 14 of the Code, and it is also the Sub-Divisional Magistrate or any other Magistrate empowered by the Local Government who takes cognizance of offences, who has to exercise the powers under the relevant sections of the Code. But the writer by referring to the police investigation in this case was not making any distinction between the S. D. O. and the S. D. M. and it was really his intention to refer to the S. D. M. As I have said, Titlagarh is a small place and the incident must have created a commotion in the locality; and these publications would naturally have a great effect on the mind of witnesses and surely have a tendency to interfere with the fair course of justice. Having given our anxious consideration to the facts of the case, we have come to the conclusion that the publications constitute contempt of court and the contemners are liable for those publications.
18. After the hearing of the case was concluded, all the contemners have filed affidavits stating that they had not the slightest intention of prejudicing or interfering with the course of justice, and they desire to express unconditional apology for having taken a course which led to the starting of these proceedings. So far as the Editor,Printer and Publisher of the Matrubhumi are concerned, we think that in view of their apology no sentence should be passed upon them. As we have pointed out, the Editor of the Matrubhumi was hesitating to publish the original letter of Sri Muralidhar Panda which contained the main accusations, and if the letter of Sri Panda dated 14th September had not been published, the first two articles would not have amounted to contempt, and the Editor had to publish that letter as it emanated from a responsible person as a member of the Legislative Assembly.
19. So far as Sri Muralidhar Panda is concerned, he is a responsible man being a member of the Orissa Legislative, Assembly, in his case, we have come to the conclusion that a mere apology is not sufficient in view of the gravity of the offence and some sentence should be imposed. We accordingly sentence him to pay a fine of Rs. 100/-in default of payment he shall undergo simple Imprisonment for two weeks.
20. So far as Sri Surendra Mohanty, Editor of the Ganatantra and Sri Raj Ballav Misra, Printer and Publisher of the Ganatantra are concerned, we have come to the conclusion that a mere apology is not sufficient inasmuch as the article published in their paper contained direct reference to the criminal case. We accordingly sentence Sri Surendra Mohanty to pay a fine of Rs 50/-, in default of payment of fine to undergo simple imprisonment for one week. We also sentence Sri Raj Ballav Misra to pay a fine of Rs. 25/-, in default of payment of the fine to undergo simple imprisonment for four days.
21. I agree.