1. The present contempt proceedings were started on an application filed by Shri H.K. Mahatab who was the Chief Minister of the State of Orissa and thereafter a Union Minister in the Central Cabinet. He is at present a Member of the Parliament. The petition is against opposite party No. 1. Balakrishna Kar, Editor, Matrubhumi, and Proprietor of Saraswata Press. Opposite party No. 2, Rama Chandra Kar is the Printer and Publisher of Matrubhumi. Matrubhumi is a daily Oriya paper having a fair circulation in the State of Orissa. It has its weekly issue also.
The opposite parties, in their paper Matrubhumi, had published several articles criticising the conduct of Shri Mahatab while he was the Chief Minister oi' Orissa and while he was a Member of the Central Cabinet of the charges uf several corrupt practices, bribery, dishonesty and some anti-social and unpatriotic acts on account of which Shri Mahatab had filed a suit for defamation in Original Suit No. 189 of 1952 in the Court of the Subordinate Judge of Cuttak on 3-9-1952 against the opposite parties on the allegation that the opposite parties, with a view to humiliate the petitioner and damage his political career and to bring him down in the estimation of the people in his Constituency and of the general public, have been deliberately and persistently editing, printing and publishing maliciously false and highly defamatory matters in the several issues of the Oriya paper Matrubhumi. The petitioner had valued the suit at a lakh of rupees.
2. The present petition is to the effect that while the said suit is pending, the opposite parties are still continuing and persisting in writing editorial and publishing articles with the deliberate intention of organising and mobilising public opinion in favour of the opposite parties and against the petitioner, vilifying and abusing the present petitioner in very filthy language, prejudicing mankind against the petitioner and making comments on the merits of the case pending before the Subordinate Judge of Cuttack and further asserting that the opposite parties are perfectly right and justified in their conduct and the petitioner has no merit in his case before the Subordinate Judge. These publications, according to the petitioner, are deliberately intended and have a strong tendency to interfere with the due course of justice in the original suit between the parties.
On this petition, notice was issued to the opposite parties on 18-12-1952, 14-1-1953 and 21-1-1953 to show cause why they should not be punished or otherwise suitably dealt with according to law for contempt of Court for having published articles in the Daily and Weekly issues of Matrubhumi. The dates of the issues are given in the notice as 5-9-1952; 7-9-1952; 8-9-1952; 11-9-1952; 13-9-1952; 15-9-1952; 16-9-1952; 6-10-1952 and 13-10-1952. The portions which were deemed prima facie to bring the articles within the mischief of contempt were underlined in red ink.
3. The main plea taken before us by the opposite parties is that the articles do not constitute contempt. They had never the intention of vilifying or abusing the plaintiff in the suit nor did they assert regarding the merits of the case. The articles have no tendency to prejudice mankind against the plaintiff. Before examining each of these articles to see whether all or any of them comes within the mischief of the law of contempt, let us examine the position of law on this particular branch of the subject.
4. More than 200 years ago, the law was very succinctly put by Lord Hardwicke in -- 'Re Read and Huggonson; Reach v. Garyan', (1742) 26 ER 683 (A) in the following terms: 'Nothing is more incumbent upon the 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.' He further added:
'There cannot be anything of greater consequence than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters.'
During the period of last 200 years, this has been sufficiently clarified, explained, elaborated and crystallised by several judicial pronouncements both in England and India. In -- 'William Thomas Shipping Co. Ltd., In re', 1930-2 Ch 368 (B) Maugham J. observed:
'I think that to publish injurious misrepresentations directed against a party to the action, especially when they are holding up that party to hatred or contempt, is liable to affect the course of justice because it may, in the case of a plaintiff, cause him to discontinue the action from fear of public dislike, or it may cause the defendant to come to a compromise which he otherwise would not come to for a like reason.' The law on the subject is clear and it is stated In Oswald's Contempt of Court, 3rd Edition, p. 91: 'All publications which offend against the dignity of the Court, or are calculated to prejudice the course of justice, will constitute contempt. Offences of this nature are of three kinds--namely those which (1) scandalise the Court; or (2) abuse the parties concerned in causes there; or (3) prejudice mankind against persons before the cause is heard. Under the first head fall libels on the integrity of the Courts, its Judges, Officers, or proceedings; under the second and third heads anything which tends to excite prejudice against the parties, or their litigation, while it is pending. For example, attacks on or abuse of a party, his witnesses or solicitor, constitute contempt, though a mere libel on a party, not amounting to an interference with the course of justice, does not, the party being left to his remedy by action.'
It appears to have been clarified in the abovequotation that mere attacks on or abuse of aparty, his witnesses or solicitor does not amountto contempt if it does not interfere with thecourse of justice. The parties in such cases areleft to remedy by appropriate action. In -- 'Regv. Parke', 1903-2 KB 432 (C), Wills J. made thefollowing pertinent observations:
'The reason why the publication of articles likethose with which we have to deal is treated asa contempt of Court is because their tendencyand sometimes their object is to deprive theCourt 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'.'
5. Let me next come to some of the Indian decisions on the point and I will first, refer to a judgment of two very eminent Judges of India, Leach C. J. and Madhavan Nair J. (as he then was) of the Madras High Court, reported in the case of -- 'Krishna Yachendra v. Rama Naidu', AIR 1938 Mad 248 (D). There two persons published in a newspaper an article which stated the case of the defendants in a suit instituted by a Raja against certain ryots and was pending decision in the Court and inferred that it was true and accused the Raja, the plaintiff in the case, as having ruined the defendants and of having concocted false criminal cases against them and further accused the plaintiff of using his influence maliciously and to the detriment of the defendants and closed the article with an appeal for assistance for defendants. Leach C. J. in his judgment observes that ib constitutes a grave contempt, but the defendants having expressed regret, it was considered not necessary to take any action in the matter.
Their Lordships held that the article constituted contempt, the main reason, as it appears, being that the article contained an inference that the defendants' case was true and the Raja also had concocted false criminal cases against the defendants. It would be worthwhile to mention that their Lordships accepted the position of law as correct as quoted at p. 91 of Oswald's Contempt of Court, 3rd Edition.
6. The next is a Pull Court decision of the Lahore High Court reported in -- 'Subrahmanyan Editor Tribune In re', AIR 1943 Lah 329 (PB) (E), the leading judgment being of Harries C. J. It was the famous Tribune Case of Lahore wherein their Lordships found that the Editor was not guilty of the publication of the articles. The articles were three in number, the first article being headed as 'Arrest made on flimsy grounds', the second article purporting to be a report of certain criminal proceedings which was headed as 'The arrest of Mr. A.C. Ball', the third was headed as 'Lawyer insulted'. The articles were published on the arrest of one mr. Ball by Mr. Henderson, a police official.
Harries C. J. in his judgment at p. 337 made observations as follows:
'A criticism of an executive officer, no matter how severe, cannot amount to contempt of Court unless such criticism contains matter calculated substantially to interfere with the due course of justice. It is one thing to say during the pendency of proceedings that an executive officer should not have taken a certain course. It is quite different thing to say that the course he took was wholly illegal. The main theme of all these quotations is that Mr. Henderson should not have taken the course which he did and that the arrest under Rule 129, Defence of India Rules, was a very harsh way of dealing with Mr. Ball's offence, if any.'
At p. 337, the position has been made clear relying on a previous decision reported in --Ananta Lal Singh v. A.H. Watson', AIR 1931 Cal 257 (P) that
'before a Court will take notice of such a publication the Court must be satisfied that the matter published tended substantially to interfere with the due course of justice or was calculated substantially to create prejudice in the public mind. The Court will not take action where the offending matter amounts to what is sometimes referred to as a technical contempt, that is, in a case involving the main question of propriety where the tendency of the article to do harm is slight and the character and circumstances of the comment is otherwise such that it can appropriately be ignored.'
Indeed, the contempt of Court proceedings are a summary and very arbitrary method of dealing with individuals. That being so, contempt proceedings should be sparingly initiated and a person should not be convicted unless his conviction is essentialy in the interest of justice. There must be a substantial contempt, that is, something which tends in a substantial manner to interfere with the course of justice to prejudice the public against one of the parties in a proceeding. It is clear, therefore, that we have to examine in these articles whether there has been a substantial contempt in this sense as expounded by their Lordships. It has got to be noted that in this Full Bench case also the proposition of law enunciated in Oswald's Contempt of Court at page 91 quoted above was accepted.
Mr. Patnaik, appearing on behalf of the petitioner, had placed strong reliance on a decision of their Lordships of the Lahore High Court reported in -- 'Emperor v. Khushal Chand', AIR 1945 Lah 206 (G), where it was held that
'where the articles published are deliberately designed to create an atmosphere of sympathy for the offenders and to mobilise public opinion in their favour and are calculated to produce the impression that the offenders are not to blame and that they are being persecuted as they happen to belong to a particular community the articles would amount to contempt of Court as it is a contempt of Court to prejudice mankind for or against the party to the cause before the cause is heard.'
7. Mr. Patnaik contends that the present articles do come within the observations made in this Lahore case. In this case; certain butchers were carrying beef in their carts in front of the Durgiana Temple at Amritsar when they were attacked by five Hindu young men, three of whom were armed with hatchets while the other two were armed with hocky sticks. The police were immediately communicated with & a case under Section 307/148, Penal Code was started. About a week later, two articles appeared in vernacular newspapers of wide circulation, 1 headed 'Anxiety among the Hindus of Amritsar' and the other article 'Police Raj in Amritsar'. These articles were alleged to have commented on the merits and demerits of a pending case.
Their Lordships observed that these articles contain in a sensational form a number of statements highly favourable to the assailants of the butchers on matters which are to be adjudicated upon by the Court by which the case is to be tried. Their Lordships further observed:
'They are unquestionably calculated to produce the impression that the offenders are not to blame and that they are being persecuted as they happen to belong to a particular community. As stated above it is a contempt to prejudice the mankind against the party to the cause before the causes are heard.'
To my mind, as it appears, their Lordships' decision was mainly dependent on the feature as quoted above that the articles discussed about the merits of the case and created an atmosphere in favour of the accused on the merits.
8. We have also another decision of Harries C. J. in the case reported in -- 'Supdt. and Remembrancer of Legal Affairs v. Murali Manohar Prasad', AIR 1941 Pat 185 (H). He confirmed the view oi' law as appearing in the cases already cited by me in observing:
'Any act done or writing published, which is calculated to interfere with the due course of justice, is a contempt of Court, and writings prejudicing the public for or against a party are similarly contempt. No intention to interfere with the due course of justice or to prejudice the public need be established if the effect of the article or articles complained of is to create prejudice or is to interfere with the due course of justice. The question of intention is irrelevant in considering whether the offence has been Committed, though of course, it is a most important matter in considering the appropriate sentence to be imposed.'
This is the famous Searchlight case where Mr. Murali Manohar Prasad was called upon to show cause why he should not be proceeded for contempt for having published an article headed as 'Brutal assault on Indian' on the incident of 26-7-1940 at Dinapore which resulted in the death of a young Indian. There was another article also which was headed as 'Alleged fatal assault by a Tommy'. The case was imminent to be filed and in these articles there were comments on the case. Their Lordships made some pertinent observations which may have application to the present case which run as follows:
'The writer is entitled to comment and comment severely upon incidents which he thinks deserve comment. If his comment is unjustified persons injured by such comment have ample redress under the law of India. Comments generally on these incidents cannot amount to contempt. But no one has a right to prejudge the case and to state what he regards to be the true facts whilst the case is pending.'
These observations indicate that the substance of the offence is to create an atmosphere in favour of either of the parties by asserting the truth or falsity of the case on merits. Their Lordships in this case also reiterated the view that:
'A mere technical contempt of Court is not sufficient to warrant High Court interfering and convicting the opposite party. There must be something more than a mere technical contempt; there must be a substantial contempt; that is, something which tends in a substantial manner to interfere with the course of justice or tends substantially to prejudice the public against party.'
9. Mr. Patnaik has also relied upon a decision reported in -- 'Suresh Chandra v. Biswa Nath', AIR 1938 Cal 772 (I). Here the title suit was instituted purporting to be on behalf of the local public for a declaration that certain land claimed by the defendant was a pathway.
During the pendency of this suit, the plaintiff published a notice calling upon the public to attend a meeting to determine the course of action to be followed. The notice stated that the disputed land which had been used by general public from time immemorial was under risk of being closed. The resolution in the meeting and an article in a newspaper also asserted that the land was being used by the public and protested against the attempt of defendant of closing it. The notice, the resolution at the meeting and the article were held to amount to contempt as. they would prejudice the public against the defendant. In this case, as we see there was distinct, assertion as to the truth of. the case of the plaintiffs that it is A public pathway and that the public are using it from time immemorial. In that view of the matter their Lordships found it to be a case of contempt.
10. With the background of the above decisions, therefore, we shall have to examine each of these articles as to how far they will be held by law to be contempt. We shall have to remember in this connexion also that Shri Mahatab is a public worker for a pretty long time with very wide public activities throughout the whole of India though particularly in the State of Orissa. As a public man, he is bound to be criticised by various parties in the country who do not see eye to eye with the methods and objectives of the party to which Mahatab belongs. To me, as it appears, it can never be suggested for a. moment that the law of contempt of Court has got to be interpreted in the way that as soon as such a suit filed by Sri Mahatab, he becomes completely immune from all public criticisms, which may sometimes be very scathing, but at the same time we have got to bear in mind that as a party in the suit for defamation he has got the right to have the fairest trial in the cleanest possible atmosphere and no one has the right to put any impediments in the due course of justice.'
We are, therefore, confronted with the difficult task of examining how far these articles are justified by way of comments and criticisms on the public activities of Mahatab or how far they have exceeded the limit and are calculated substantially to impede the due course of justice. The first article that we shall deal with is the Daily issue of Matrubhumi dated 5-9-1952 headed as 'Populace will give the reply' wherein the editor has expounded the general mission of the paper which he describes as pointing out to the mistakes and follies of the administration. It is reiterated there that by publishing repeatedly how corruption has entered into the very vitals of administration, the administration has become a curse instead of a boon. The paper has accused many persons who are at the helm of administration. The paper will pursue the mission of theirs until the corruptions and malpractices are completely eradicated from the country.
It further goes on to say that by publishing this, Matrubhumi has faced the great wrath of architects of the destiny of Orissa. If the editor of Matrubhumi in pursuit of this mission has exposed the corruption and follies of the man in 'charge of administration, the people will give a reply. In our opinion, this seems to be quite a general exposition of the mission and function of the paper which seems to be quite welcome. It has no reference to Mahatab or his case and, as such, is an innocent publication.
11. The next one I mean to take up is the Sunday issue of Matrubhumi dated 7-9-1952 wherein the paper publishes the views of the Secretary of the Orissa Socialist Party Shri Banka Behari Das. Indeed this article has a direct reference to the defamation suit. Shri Banka Behari expresses himself in the way that he is not surprised at the news that Shri Mahatab has brought a suit for defamation against Matrubhumi. Capitalists and bankrupt politicians take recourse to such measures of bringing suits without agitating in the papers. The suit, according to him, is a challenge to the papers in general and to the public on whom lie the duty of bringing all the materials before Court. It is important to note that he categorically asserts in this article that now that the matter is before the Court, it is not for him to express any opinion whatsoever and that the Court will determine the real position.
I do not think that it is offensive to call on the papers and on the people to place all the materials before the Court who alone, according to him, is competent to decide the real truth. It cannot be said that he only means that the public are to place before the Court only the materials and evidence which are against Mahatab and not those in favour of him, Mr. Patnaik, while commenting on this article, relied upon the two phrases 'Capitalists' and 'Bankrupt Politicians' used in the article. To call a man a capitalist is neither offensive nor defamatory. By calling Mahatab a bankrupt politician, he is criticising his political views and not his status in society which may have some reflexion on the question of assessment of his value of reputation relevant for the parties to the defamation suit.
12. The nest One is the publication of a letter written by Shri Raj Ballav Misra to the editor, Matrubhumi, wherein he congratulates the editor on the institution of the defamation suit against him on account of the reason that this is an occasion where the real truth will come out. He also asserts the position that whether Mahatab has been defamed and whether the editor is liable to punishment, is entirely in the hands of the Court to decide, but the object of his felicitation is that the matter has got to be thrashed out in Court. This seems to be equally inoffensive.
13. The next article is the editorial of Matrubhumi in the Daily issue dated Monday, 8-9-1952, headed as 'Matrubhumi will remain unmoved'. The entire translation of the impugned article is given below as it is the editorial and the entire responsibility is with the present opposite parties:.
'In the meantime more than one defamation cases have been filed in different Courts against 'Matrubhumi'. Everybody more or less knows the history how our motherland (Matrubhumi) was previously attacked from all sides and our motherland (Matrubhumi) was battered to pieces as a result of this attack. Even after the attainment of independence cruel attack is made from all sides on the prestige of the motherland; and it is sad that some self-styled leaders alleging themselves as servant and worshipper of the motherland, having nurtured themselves with the bread and butter of the motherland, are helping it like a handle to an axe. By hook or by crook to make their high position higher they are putting their own interest higher than the national interest.
On account of their devotion to personal interest like this Singhbhum has gone. The land on the west like Bastar and Jaspur has gone and many predominantly Oriya parts in the south are in the clutches of Madras. Sareikala and Kharsuan have slipped out of hand even after coming. It is true that to the outsiders, Utkal province comprising of political Orissa and merged States has raised its head as a separate State in Independent India, but in its midst the fortune of non-Oriyas over Oriyas has crossed all bounds in broad daylight. To judge like this the prestige of our motherland is being spoiled in broad day-light on everybody's face, everyday, every moment.
To expose those who are defaming the motherland like this and those tip-top so-called civilised people in the leadership who are assisting them, 'Matrubhumi' was born. Otherwise there was no necessity of 'Matrubhumi' when more than one daily and weekly is being published in the Country.
The innumerable readers bear witness to how far 'Matrubhumi' has been successful in its short existence to proceed in the object for which it first appeared. 'Matrubhumi' is determined to bear it smiling even if somebody hits the cruel weapon to thunderbolt over it, in the prosecution of its object to expose those who pollute the limited present and great future of the nation and sacrifice the common interest at the cost of their personal interest. In the prosecution of its object, its motion is not retarded and will never be retarded. If because in its horoscope to retreat someone thinks that it has defamed somebody to save the prestige of the nation and people. Rather it will devote all its energy in a redoubled vigour in the service of the deaf and dumb millions of the nation. This is the solemn and final promise of 'Matrubhumi' to the countrymen in its dark days.'
14. It begins with a general observation that more than one defamation cases have been filed in different Courts against Matrubhumi. Thereafter the editor has vindicated and justified the existence of the paper in pursuit of the mission which is to expose the selfish politicians who are at the helm of affairs and are making abuse of their positions. But the editor goes further in asserting that if by way of protecting the interest and fame of the country and the nation anybody thinks that he has been defamed, the editor will not move back an inch and will devote himself in the service of ' the country with redoubled vigour. Indeed while asserting his boldness and determination in pursuit of the mission he has asserted in a way that the publications on account of which the defamation cases have been brought are justified.
This assertion justifying his conduct, which gave rise to cases which are pending decision of the Court, is to my mind going beyond the permissible law of fair comment and bringing it within the mischief of the law of contempt. Indeed the article has no special and particular reference to Mahatab or to the case brought by him. But nevertheless the editor in a general way has made deliberate assertions justifying his conduct which has given rise to defamation cases and this is definitely contempt.
15. On that very issue there is a publication of another humorous comment taken from some other paper. The comment is by way of a conversation between a grandson and grandfather and is headed as 'Subtle calculations of a blunt mind.' The comment headed as above indeed has reflexions on the reputation of Mahatab in a humorous way. It is not indeed a fair comment on the public activities of Mahatab without any reference whatsoever to the case, but has direct connexion to the allegations of the defamation by Mahatab. But nevertheless it does not seem to be a serious reflexion on his reputation and no notice need be taken.
16. We will next take up an 'Appeal' published by some leading' men of the locality calling upon the editors to make it a common cause and. calling upon the public to constitute a defence committee for defending the cases that are being brought against the editors, printers and publishers, particularly those brought against Matrubhumi and Krushak. A full text of the Appeal published in the issue of Matrubhuxni dated, Thursday, 11-9-52, is given below:
'The duty of a newspaper in an independent country is great. The prime duty of newspaper is to point out to the countrymen the mistakes and lollies of the administration and to guide the countrymen in the correct path by discussing the evil and corruption in the society. There is no use for a newspaper to exist, if it cannot achieve this end. But it is natural of anti-social elements to attempt the total extinction of a newspaper while the newspaper proceeds to achieve its end.
Today some newspaper in execution of its duty has become the prey of anger of someone and others will follow suit. In this field newspaper and journalists should unite to resist this injustice.
'Four cases have been filed against 'Krushak' and 'Matrubhumi'. There is also apprehension of some others in future. It is absolutely necessary for all progressive newspapers and journalists to unite, in a concerted action, to save 'Matrubhumi' & 'Krusaka' from total extinction considering them as their own. Therefore, we propose that people of the country should immediately form a resistance committee.'
17. In this connexion, it will be worthwhile to make a reference to the case reported in --'Plating Co. v. Farquharson', 1881-17 Ch D 49 (J). There an injunction was granted restraining the defendants in that suit from infringing a patent for nickel-plating against which they had notice of appeal and published in a newspaper an advertisement inviting the trade to subscribe towards the expenses of the appeal and also an advertisement offering a reward of 100 pounds to any one who could produce documentary evidence that nickel plating was done before 1869. The plaintiffs having moved against the defendants for contempt of Court the advertisement being an interference with the course of justice it was held that the persons engaged in the trade of plating had a common interest in resisting the claims of the plaintiffs. Therefore, the advertisement calling upon them to contribute to the expenses of defending the proceedings was open to no objection.
The advertisement offering a reward for documentary evidence was also found to be inoffensive. The principle seems to be quite clear that a mere appeal to the persons who have got a common cause with the defendants to combine and contribute towards the expenses of litigation is inoffensive. But if there be a categorical assertion as to the truth of the case of the defence it will be deemed as an impediment in the due course of justice. Judged from this point of view, we will particularly consider the sentence 'today some newspaper in execution of its duty has become the prey of anger of someone and others will follow suit. In this field newspaper and journalists should unite to resist this injustice' does imply indirectly that the newspaper which has been the victim of anger of someone is justified in its conduct. In our opinion, this assertion is not justified, but as there is no direct and distinct reference to the case, in question, we do not want to take notice of it.
18. There is also another 'Appeal' equally which was published in the issue of Matrubhumi dated 16-9-1952, which is reproduced below:
'A number of defamation cases have been instituted against' Matrubhumi and Krushak in theCivil and Criminal Courts and more cases are being threatened. It appears that some persons with vested interests, occupying the highest position in the State, plan to give such heavy blows on the newspapers, which are springing in the State to serve the people, that instead of rising the papers will be completely crushed.
So it is the duty of the general public to save from the imminent danger, the newspapers who have come forward to save interests of the people. For that purpose it is necessary for us to take concerted action. A meeting will be held to determine what is the duty of the public in this matter and thereafter to decide a concerted course of acuon. It is requested that you will oblige us by attending the meeting.'
The terms of the Appeal being too general, we are not also inclined to take notice of it.
19. One of the impugned articles is a publication in which the Editor, Matrubhumi, expresses his heartfelt gratitude to the persons who are supporting Matrubhumi against the concerted attempts of the people to frustrate the pursuits of the paper in fulfilling its mission in exposing the malpractices and corruptions that have permeated the various phases of the administration of the day. The editor states that by pursuing his mission he has been the eyesore of many people who occupy high position by hook or by crook. In my opinion, this is a mere expression of gratitude made in a general way and itself does not constitute an offence.
20. I will next take up an article published in the issue dated 13-9-1952, headed as 'Problem for ail newspapers' -- 'Concerted action is necessary against the terrorising attack of the Congress.' This article is a reproduction of the views expressed by Mohan Das, Editor of Nua Dunia on 12-9-52. In this article, Mohan Das refers to two cases filed against Matrubhumi and Krushak. He asserts there that the cases are sub judice and that it is not proper for him to express his opinion on the subject. But nevertheless what he wants is that the whole truth will come out and the real culprit be punished. He further states that this is indeed what is wanted by all the papers of Orissa and the public too. He expresses his felicitations that the matter has come within the cognisance of the Court of justice and the parties will make out the whole case before the Court.
He further goes on to say that the Congress ought to know that by this the other papers will not be bowed down. He, therefore, concludes that this is a task before all the papers of Orissa and also the people in general that the real truth and the whole truth should be brought out before the Court. In our opinion, there being no assertion justifying the cases which are the subject matter of the defamation suit or that what are contained therein are true but it being an appeal for a concerted action on the part of all the papers for bringing out the whole truth, it does not constitute the offence of contempt.
21. The next article is one published in the issue dated 15-9-1952, headed as 'Subtle calculations of a blunt mind'. It refers to a case between Balakrishna, that is, the Editor of Matrubhumi. and H.K. Mahatab in the High Court. It expresses in a vulgar and indecent way that in the result Harekrishna will be getting only the hair, that is, trash, as a result of the case. This short paragraph is neither fair nor comment. It speaks only about the bad taste of a journalist which is to be highly deprecated inasmuch as it will create a bad taste among the reading public of Orissa in so far as it has the effect of vilifyingor abusing Mahatab who is a party to a cause in a vulgar language without any sense of decency or justification. It does constitute a technical offence even though it would not substantially affect the due course of justice.
22. The next item is the long article appearing in the issue of Matrubhumi dated 13-10-1952. It is a reproduction of the reply given by Shri Binode Kanongo, Editor of Krushak, to the open letter of Satyapriya Babu assuming that this Satyapriya Babu is a Congress M. L. A. and the Secretary of the Congress Party in the Assembly. This article reproduced below refers to the defamation cases against both Krushak and Matrubhumi. This is an appeal to the public for support, sympathy and help in the matter of defending their cases on the basis that it is the mission of the paper to expose all truths.
Read as above, the article does signify that while the writer asserts that the Editors of Krushak and Matrubhumi are anxious for exposing the whole truth, he intends to mobilise public opinion and enlist public sympathy in the case on the basis that what they 'have published in the papers which are the subject matter of the defamation cases are true and justifiable and that there have been deliberate attempts on the part of Mahatab and Bijayananda Patnaik in the matter of suppression of truth. In this view, therefore, in our opinion it does constitute an attempt at prejudging the issues involved in the defamation case and prejudicing the mankind. Even though this is not the editorial of Matrubhumi, they are certainly responsible for having published it when they know fully well that this article contains matters regarding the defamation case of Mahatab against Matrubhumi. The article does create an impression that Editors are in the right and Mahatab and Bijayananda Babu are in the wrong.
The article runs thus: 'Let the President of the Provincial Congressreply.
Strong Conspiracy to Suppress Truth, Fitting reply of the Editor of 'Krushak' regarding the open letter of Satyapriya Babu.
'I read the open letter which Sreejukta Satyapriya Mohanty has published in the newspaper regarding the 'Krushak' and 'Matrubhumi' Sahayak Committee. Who is this Satyapriya Mohanty? No address of his lias been given in the open letter or in the newspaper. From a perusal of the open letter it is natural to think he is a Congress M. L. A. and is the Secretary of the Congress Assembly Party. On that assumption I am giving this reply.
'Though Satyapriya Babu has written that he is an ordinary tax-payer, but in truth he is not that. He is a man of position (STHALABHISHAKTA) of the Congress. So without merely stating about legal consultation, if he had written the letter after consulting a lawyer, he would have been able to tell some truths.
'He has tried to persuade people that Mahatab and Bijoyananda are merely ordinary individuals, and that they have been defamed and further that the Editors and Printers of 'Matrubhumi' and 'Krushak' have defamed them in their personal capacity. So nobody has got to bother about that.
'Are Mahatab, Bijoyananda Fatnaik or Satyapriya Mohanty mere individuals?' The teeming millions of innocent tax-payers have sent them by votes as their rulers. Is it merely for the gratification of their personal lusts?
It cannot be the intention of any newspaper Discussion of the personal lives of Mahatab or Bijoy Babu cannot be the intention of any newspaper. Nobody would gain by that. Neither have we contemplated the waste of our time by discussion of their personal lives.
But how Mahatab and Bijoya Babu occupying the position of Minister and Director of many Public Companies on the strength of their representative capacity, have utilised the wealth of the people along with that the confidence of the country-men and the great suspicion which has arisen in the minds of the people, we as mouthpiece of the general tax-payers ana countrymen, as a duty of the newspapers and for the purpose of safeguarding the interests of the general tax-payers have exposed the same. There is no doubt that if our country-men help us they will know more truths about this matter. At least the truths or otherwise about the subject-matter of the litigation will be known in the Court if people help us to fight out the case. Out of fear for this, it is natural for attempts to be made on behalf of the Congress Secretary that nobody should help us. Satyapriya Babu will have to admit that Congress-men have reached the stage of attempting to conceal truth.
'The very fact that Satyapriya Babu, occupying the position of Congress M. L. A. and Secretary, has posed as an ordinary tax-payer in the open letter, proves that this case is not the personal case of Mahatab and Eijoya Babu. It is their collective or party case. Does not Srijukta Parija's statement that the publication of the news in the Prajatantra that the Secretary of the Provincial Congress Committee Banamali Patnaik is taking steps in the case of Mahatab, make everything clear to the people? Is Banamali Patnaik mere individual or the Secretary of the Utkal Congress? The letter of Satyapriya Babu and the taking of steps by Banamali Patnaik make it known to all that this move is not personal. This is a great conspiracy against all country-men.
'Again Satyapriya Babu has said that the country became independent. When the Country was under the British, such Relief Committees were being formed to expose truth or falsity in the Courts. It is not proper now to make any such attempt in an independent country and in an independent High Court. When country became independent Satyapriya Babu was nor there. It would not have been possible to make any such work in support of I. N. A. Relief Committee. When all the people of India were fighting against the foreign power, facing bullets and rotting in the jail, Satyapriya Babu was busy carrying on propaganda in support of the British in the capacity of Puri War Front Leader.
Satyapriya Babu must now realise that when the teeming tax-payers were fighting with blood and tears for the independence of the country, they were not apprehending that on the attainment of independence Sri Bijoyananda Patnaik will become businessman with the wealth of the taxpayers, earned by the sweat of their brow, or others on becoming Ministers would forget the country-men or that the War Front propagandists will become the office-bearers of the Congress. So what doubt is there that Satyapriya Babu will try to cover up the truth? It is certain that it has become absolutely necessary that the condition which the country has reached requires that truths about those who have entered into the administrative machinery should be published. Country is going to be crushed by the conspiracy of power and money. No individual institution or Government have ever been able to suppress public opinion by the weight of law, regulation, greed for money or litigation. The support which we have got from our countrymen, in spite of the attempts of Satyapriya Babu is our pride.
'Again Satyapriya Babu has said that Mahatab and Bijoyananda Patnaik have instituted only three cases. The others have been filed by their Barrister as contempt of Court proceedings. Before writing such a great falsehood, it would have been better if Satyapriya Babu had asked the Barrister of Mahatab. Barrister would be prepared to say that he had filed the cases on his behalf. I am an accused. Number of contempt of Court proceedings have been instituted against me. But the Barrister has not instituted the same. Jagatkrushna Das, agent of Bijoyananda Patnaik, has filed the cases against me and my friends.
Again although the contempt of Court proceedings are to be instituted in the High Court, they have been filed in the Court of the Subordinate Judge and Sub-Divisional Officer. So it is not true to say that Barrister has filed these cases as a citizen. In the language of Satyapriya Babu these cases have not been instituted orally but in writing and Court-fee has been affixed. We do not know if the Barrister has taken fees from Mahatab and Bijoy Babu for drafting and filing the cases. But there is no difficulty to understand that Barrister has not spent money from his own pocket for the court-fees.
'Satyapriya Babu has written that in the contempt of Court proceedings, Court is the prosecutor. It is not necessary for any body to institute. In any cognizable case (i.e. theft) State is the prosecutor. Satyapriya Babu is certainly not unaware that in our country many persons with a view to satisfy their grudge file Criminal cases in Courts. High Court itself is to take up contempt of Court cases. But this case has been instituted by the agent of Bijpy-nanda in other Courts instead of in the High Court. Everybody would know why this has been done after the case is over. The move on behalf of the Congress that nobody should help us in our defence, that countrymen should (sic not) help us in proving truth in Court of law, that even if we are not guilty countrymen should not help us in our defence, is extremely ridiculous when the business friends Bijoyananda Patnaik and Mahatab of Satyapriya Babu's party are trying to suppress truth by putting patriotic newspapers like Krushak and Matrubhumi in the dock.
'Lastly my appeal to the President of the Congress Committee Sri Biswanath Das is that he should enlighten the public as to what the Congress Committee or Congress Assembly Party has got to do with the litigation. Let him consider whether it is proper to utilise the name of Congress Committee in the litigation.'
23. Some arguments were advanced on behalf of the opposite parties that the case of an editor or a printer ought to be viewed in a more liberal way in the matter of application of the laws of contempt of Court in the advent of democracy in our country inasmuch as the Press has a very great responsibility for contributing to the successful building up of democratic traditions in the country by way of exposing corruption and maladministration which are more or less rampant in every phase of the administration all round. We can answer this question simply by a reference to the decision of their Lordships of the Privy Council reported in -- 'Channing Arnold v. King Emperor', AIR 1914 PC 116 (K), wherein the principle has been clearly laid down as follows:
'The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever height the subject in general way may go, so also may the journalist; but apart from statute law his privilege is no better, and no higher.'
This question was raised and decided in the judgment in the case of -- 'Bijoyananda Patnaik v. Balakrushna Kar', reported in AIR 1953 Orissa249 (L) to which decision I was a party. We have to accept simply the view taken there that the freedom in this respect of the journalist is of no better level than that of an independent citizen. On the contrary, in the present case, the responsibility is certainly heavier on the editor inasmuch as the editor and the printer are both parties to the litigation pending decision and that the paper has a fair circulation amongst the people of Orissa.
24. To conclude, therefore, we find that the article dated 13-10-1952 and the editorial dated 8-9-1952 do constitute the offence of contempt of Court inasmuch as the opposite parties, in deliberately attempting to mobilise the public opinion in their favour and call upon the people at large and the pressmen in general to support their cause, which, according to them, is the common cause for the pressmen and the public, have asserted the position that they are right in the stand taken in the publications which are the subject matter of the pending action for defamation and that Mahatab is in the wrong. It appears, therefore, quite clear to our mind that by these two aforesaid articles by expressing their own views by the editorial of 8-9-1952, and by facilitating circulation and publication of similar views expressed in another paper in the issue of Matrubhumi (Weekly) dated 13-9-1952, (at page 9, Col. 4) the opposite parties have prejudiced the mankind to some extent against the plaintiff in the suit.
The article dated 13-10-1952 wherein there was indecent abuse of Mahatab as a party to the litigation by far exceeded all limits of fair comments and is nothing but a mere vilification of a party to a cause with reference to the proceedings and as such comes within the mischief of the law of contempt.
25. But, as in our view, the articles are not calculated to cause such a substantial obstruction in the due course of justice as to record a punishment of committal or fine, we are inclined to take a lenient view for the last time in the case.
26. While expressing our strong disapproval of the conduct of the opposite parties and particularly in view of the situation that they being parties to the litigation had taken advantage of their position as editor and printer, we warn them that we will be compelled to take a very serious view in the case of repetition of the offence. We would, therefore, make the rule absolute and direct no more punishment beyond the above observations. The opposite parties will, however, pay the costs of the petitioner. The hearing fee is assessed at Rs. 150/- (Rupees one hundred and fifty)
27. I agree.