1. Original Criminal Miscellaneous Case No. 4 of 1968 of alleged contempt arises out of a petition of an unusual nature described as a 'representation petition'--without mention of opposite party and without any specific prayer against anybody --filed by Sri San tosh Kumar Sahu, a party in a pending writ petition (O. T. C. No. 418 of 1967) in this High Court, alleged to contain matters purporting to scandalise the Orissa High Court, its Judges and the Chief Justice in particular; and Original Criminal Miscellaneous Case No. 3 of 1968 arises out of the publication of certain news items and editorial in the Oriya daily 'Kalinga' of Cuttack--all in connection with the ceremony of the First Flag Hoisting over the newly constructed Tower over the Orissa High Court on the last Republic Day, January 26, 1968.
2. In Original Criminal Miscellaneous Case No, 4 of 1968 the opposite parties against whom notices were issued by this Court were Sri Santosh Kumar Sahu of the Congress Party, a former Deputy Minister in the previous Government and Sri Dinabandhu Sahu, Sri Raghunath Das and Sri S. F. Ahmad, Advocates of this High Court. In Original Criminal Miscellaneous Case No. 3 of 1968, the opposite parties on whom notices for alleged contempt were issued, were Sri Surendra Mohanty, Editor of the 'Kalinga' and Sri Bankim Chandra Das, Printer and Publisher of the 'Kalinga' Sri Santosh Kumar Sahu was also made a party in the said case. The background in which notices for contempt were issued against the opposite parties are, shortly stated, as follows;
A. Genesis : Background :
3. In October 1967, a Commission of Enquiry was appointed by the present Orissa Swatantra-Jana Congress Coalition Government to enquire into the conduct and actions of 15 persons who were members of the various Ministries from 1961 to 1966 including Sri Santosh Kumar Sahu. Writ petitions were filed by some of the aggrieved Ministers of the Congress Party--whose conduct and actions were to be investigated --including Sri P. V. Jagannatha Rao, Sri Biren Mitra and Sri Santosh Kumar Sahu, challenging the validity of the Notification appointing the Commission of Inquiry set up by the Orissa Government. The first of these writ petitions O. J. C. No. 396 of 1967 was tiled by Sri Jagannath Rao, a former Minister of the Congress Party, on November 13, 1967; O. J. C. No. 408 of 1967 was filed by Sri Biren Mitra, a former Chief Minister of the Congress Party, on November 22, 1967; and lastly, O. J. C. No. 418 of 1967 was filed by Sri Santosh Kumar Sahu, a former Deputy Minister of the previous Congress Government, on December 1, 1967.
The State of Orissa, Secretary, Home Department; Justice Sri H. R. Khanna, the Commission of Inquiry; and Sri R. N. Singh Deo, Chief Minister of Orissa, were opposite parties 1 to 4 respectively in all the writ petitions. In the last of these writ petitions O. J. C. No. 418 of 1967, five more opposite parties are stated to have been impleaded, namely, Dr. H. K. Mahtab, Sri Mabakrishna Chowdhury, Sri Pabitra Mohan Pradhan, Sri Santanu Kumar Das and Sri Surendra Nath Patnaik, It is said that Dr. H. K. Mahtab, leader of the Jana Congress Party, and Sri R. N. Singh Deo now Chief Minister of Orissa and leader of the Swatantra Party, filed affidavits purporting to be in support of the appointment of the Commission of Inquiry against the various members of the previous Government. It is apparent that, as usual, when there was serious tussle between two rival political parties they criticised each other; and from their respective angle of approach mutual criticism is understandable.
4. On November 13, 1987, when the earliest of these writ petitions O. J. C. No. 896 of 1967 was filed and listed for admission on November 14, 1967, the only available Division Bench which could take up this matter was the Division Bench consisting of Mr. Justice G. K. Misra and Mr. Justice S. K. Ray, as the Chief Justice was on that day away on tour in connection with the extension of the scheme of separation of the judiciary from the Executive in Boudh-Phulbani District. The said writ petition after being heard on November 14 and November 15 on the question of admission Was admitted by the same Bench on November 20, 1967. Two days later, on November 22, 1967 O. j. C. No. 408 of 1967 involving the same point was filed before this Court and that was also admitted by the Division Bench consisting of Mr. Justice G. K. Misra and Mr. Justice S. K. Ray on November 23, 1967 fixing January 2, 1968 for hearing. The third writ petition O. J. C. No. 418 of 1967 by Shri Santosh Kumar Sahu which also involved the same point was filed before a Division Bench consisting of the Chief Justice and Mr. Justice Ray on December 1, 1967; but as the two other petitions involving the same point had already been admitted by the other Bench, it was considered proper that this writ petition should also be heard by that Bench. The Division Bench consisting of Chief Justice and Mr. Justice Ray accordingly admitted the writ petition on December 4, 1967 and directed it to be heard along with O. J. C. No. 396 of 1967. It was thus that eventually all the three writ petitions were heard by the Division Bench consisting of Mr. Justice G. K. Misra and Mr. Justice S. K. Ray from January 9, 1968 to January 17, 1968 and judgment was reserved.
5. It was in this background -- while the said writ petitions were pending decision before this Court--that on the Republic Day January 26, 1968, there was a function in the High Court premises to celebrate the First Flag-Hoisting over the newly constructed Tower over the High Court.
In that function the Governor, the Chief Minister, the members of the High Court Bar and some leading public men who had, in the past, some connection with the inauguration of the Orissa High Court in 1948, including Dr. H. K. Mahtab (who was Chief Minister of Orissa at the time of inauguration of the High Court in 1948), Sri Nitya nanda Kanungo at present Governor of Bihar (who was then the Law Minister of Orissa at the time of the creation of the Orissa High Court), Dr. K. N. Katju and Sri Y. N. Sukhtankar former Governors of Orissa and many others, both official and non-official, irrespective of their party alignments or political views, were invited to participate in the function and also to Lunch thereafter --all in the High Court premises. Among the invitees, the Governor Dr. A. N. Khosla, the Chief Minister Sri R. N. Singh Deo, the Health Minister Sri Ramseshaiah, and Dr. H. K. Mahtab, the entire High Court Bar, many public men and high officials of the State attended the function.
Among those who could not attend the function Sri Nityananda Kanungo and Sri Y. N. Sukhtankar, ex-Governor of Orissa, Sri Asoke Sen Ex-Union Law Minister and Sri Nanda Kishore Misra, Speaker of the Orissa Legislative Assembly and many others sent messages of good wishes on this happy occasion of the First Flag-Hoisting over the newly constructed High Court Tower.
6. The programme of the function shows that after the arrival of the Governor he was received by the Chief Justice and there were speeches first by the Chief Justice, then by the Chief Minister and finally by the Governor. Thereafter the guests moved to the lawn to witness the flag hoisting over the Tower, and the function ended with the playing of the National Anthem at 11.30 a. m. Thereafter there was Lunch in the High Court premises in which all the invitees, who attended, participated.
7. Everything went on well and it is said to have been a successful function. Visitors and invitees, including the Governer, the Chief Minister, the leading public personalities including Dr. H. K. Mahtab went over the grounds of the High Court premises to see the new Bar Wing, the Fountain, the Tower and its pinnacles from various angles, the new Conference Hall, the new Court halls and chambers, the Judges' Library and the new Administrative Block on the ground floor. The set up was appreciated by every one and it was a day of rejoicing for all.
8. On January 28, 1968 the Oriya daily 'Kalinga' in its issue of the same date published a news item, stated to have been reported by its special correspondent, to the effect that though the Governor had been invited officially, the presence of the Chief Minister Sri Singh Deo and the Jana Congress leader Sri Mahtab, among the special invitees, invited strong criticism among the visitors. This report was later on followed up by an editorial (dated January 31, 1968) commenting in figurative language on the working of the newly constructed Fountain in the High Court premises as I shall discuss hereafter.
9. On January 30, 1968 Sri Santosh Kumar Sahu filed the 'representation petition'--out of which Orgl. Cri. Misc. case No. 4 of 1968 arises -- alleged to contain derogatory statements against the Orissa High Court in general, its Judges and the Chief Justice in particular, scandalising or having a tendency to scandalise the High Court and its Judges and undermining its dignity in the estimation of the public by reference to what took place at the First Flag-Hoisting function in the High Court premises on January 26, 1968. The said petition was not only signed by Sri Santosh Kumar Sahu but was also signed and presented by Sri Dinabandhu Sahu as the Advocate appearing for him. The petition was also presented by Sri Raghunath Das and Sri S. F. Ahmad as Advocates. All the three said Advocates had signed the Vakalatnama for Sri Santosh Kumar Sahu.
10. On February 1, 1968 the 'Kalinga' published another news item, purporting to have been reported by its special correspondent in which it was stated that Sri Santosh Kumar Sahu has filed the said petition in the High Court with the newspapers comments thereon,
11. On February 2, 1968, Sri Sarat Chandra Biswal filed an application purporting to be a proceeding under Sections 4 and 5 of the Contempt of Courts Act, 1952 against the Editor, and the Printer and Publisher of the Kalinga; Sri Santosh Kumar Sahu was also made a party in the case; in the said petition it was stated that the impugned publications in the 'Kalinga' dated January 28, 1968, January 31, 1968 and February 1, 1968 as aforesaid had the tendency to malign the highest Judiciary of the State of Orissa and to bring the administration of justice into contempt and further that the publications were unfair, mischievous and motivated and had been deliberately published with a view to tarnish the reputation of the Orissa High Court. This case was registered as Orgl. Crl. Misc. Case No. 3 of 1968.
12. On February 9, 1968 this Court while summarily dismissing the said representation petition dated January 30, 1968 filed by Sri Santosh Kumar Sahu passed an order calling upon him to show cause by February 15, 1968 why he should not be committed for contempt of court for filing such a petition. By the same order the Court also called upon Sri Dinabandhu Sahu, Sri Raghimath Das and Sri S. F. Ahmad to show cause by February 15, 1968 why they should not be committed for contempt of court for signing and presenting the said petition containing matters scandalising the Orissa High Court with a view to perverting the course of justice by making statements in the petition impeaching the impartiality of the Court and imputing improper motives to the Judges. This contempt case against Sri Santosh Kumar Sahu and his three Advocates was registered as Orgi. Cri. Misc. Case No. 4 of 1968.
On the same day (February 9, 1968) this Court also passed an order in the said Orgl. Crl. Misc. Case No. 3 of 1968 fifed by Sri Sarat Chandra Biswal and directed the issue of notice on Sri Surendra Mohanty, Editor of 'Kalinga' and Sri Bankirn Chandra Das, Printer and Publisher of 'Kalinga' and also on Sri Santosh Kumar Sahu to show cause by February, 15, 1968 why they should not be committed for contempt of Court.
13. In due course, affidavits were Filed by the respective opposite parties pur, porting to show cause in reply to the notices. The explanations of the opposite parties, namely Sri Santosh Kumar Sahu, his three Advocates and the Editor, Printer and Publisher of the 'Kaliuga', in substance, are aa hereinafter stated.
14. The explanation of Sri Santosh Kumar Sahu is to the effect that the petition filed by him on January 30, 1968 was a 'representation petition' with regard to some of the events referred to therein which--as explained by the Chief Justice himself in open court when Sri Dinabandhu Sahu placed his explanation--were unintentional and just happened in the course of the events. In his affidavit Sri Santosh Kumar Sahu stated that people outside should know the course of events for removal of doubts and fears in their mind; that the petition was all due to certain misapprehensions which were explained by the Chief Justice in open court and his observations in court alloyed such fears from the minds of the people present in Court. It was submitted that it was all due to a misunderstanding of the whole situation as explained in the affidavit and in the course or arguments on his behalf.
15. The explanation of Sri Santosh Kumar Sahu was supported by his three Advocates who had signed and presented the 'representation petition' dated January 30, 1968. The three Advocates in their affidavit explained that the petition signed, presented and filed by them in Court purported to be an act in furtherance of their duty as Advocates fearlessly to uphold the interests of their client by all fair and honourable means regardless of unpleasant consequences to themselves. In support of this stand they relied on Rule 15 framed under Section 49(1)(c) of the Advocates Act, 1961.
16. The explanation on behalf of the newspaper 'Kalinga'--The Editor, Printer and Publisher against whom notices were issued to show cause--on its publication, two news items and the editorials, was in substance to the effect that the news reports were mere statements of fact about things said or done in and about the High Court function which was of public importance; criticism was all due to some misunderstanding of the situation arising out of the presence of Dr. H. K. Mahtab at the function; if from the very beginning the correct position was known--as it was subsequently clarified by the Chief Justice in Court on February 15, 1968 to the effect that he had never intended to confer any such alleged undue special distinction on Dr. Mahtab as alleged--there would have been no scope for such misunderstandings and comments on that august assembly of legal luminaries and others present at the function.
As regards the editorial in the 'Kalinga' with reference to the newly constructed Fountain in the High Court lawn, it was submitted that the metaphor used therein and the good humour underlying the spirit of the editorial did not receive the appreciation they deserved; and that the metaphor was not meant to make a mockery of the Fountain as unfortunately misunderstood; they fail to see how such a metaphor used in the editorial was taken serious note of and was considered a ridicule; in fact the comment about the Fountain was not criticism but a well meaning homily and there Was nothing to feel offended about it.
B. Constitution of the Bench hearing these Cases :
17. A preliminary objection was taken on behalf of the opposite parties regarding the constitution of the Bench to hear these two cases in that according to them the Chief Justice's (referring to myself) speech and actions during the said function of First Flag-Hoisting over the High Court Tower Were the subject matter of criticism and that as the 'representation petition' dated January 30, 1968 filed by Sri Santosh Kumar Sahu and the publications in the 'Kalinga' cast reflections on the said speech and actions of the Chief Justice he should not be a member of the Bench to hear these two cases.
18. In fact, in the course of arguments an application was filed on March 20, 1968 by the learned counsel for the contemners making a prayer to nominate another Hon' ble Judge of the High Court in place of the Chief Justice to hear these cases. By way of a reply to the said application, another petition for rejection of the petition of transfer of the cases to any other Bench was filed by on March 21, 1968 by the learned Advocate General on behalf of the State and affirmed by an affidavit of the Joint Registrar of the High Court. In reply to this latter petition the representationist Sri Santosh Kumar Sahu filed on March 22, 1968 an affidavit in rejoinder in which he Submitted that the affidavit affirmed by the Joint Registrar should be rejected and be not taken on record on the grounds mentioned therein. We rejected the said petition of the learned Advocate General filed on behalf of the State affirmed by the Joint Registrar which we totally ignored.
Mr. A. S. R. Chari, learned counsel appearing for the contemners, was then specifically asked by us in Court whether he proposed to move his petition as a petition for transfer of the two cases from this Bench so that an appropriate order could be passed. In reply, the learned counsel categorically stated that he did not intend, his petition to be one for transfer of the cases from this Bench and his whole object was only to bring certain facts to the notice of the Court. After lengthy arguments addressed On the preliminary objection, we over-ruled it after careful consideration of all aspects of the question as discussed hereunder.
19. The legal position--on the basis of which it was decided that the Chief Justice should be in the Bench to hear these two cases--is clearly laid down by their Lordships of the Supreme Court in Sukh Dev Singh v. Hon'ble Chief Justice S. Teja Singh and Hon'ble Judges of the Pepsu High Court at Patiala, AIR 1954 SC 186, 190 where their Lordships of Supreme Court, while dismissing an application asking for transfer of certain contempt proceedings from the Pepsu High Court to some other High Court or in the alternative asking that at least the matter should not be heard by two of the Judges of that High Court who were named, observed as follows :
'We wish however to add that though we have no power to order a transfer in an original petition of this kind we consider it desirable on general principles of Justee that a judge who has been personally attacked should not, as far as possible, hear a contempt matter which, to that extent, concerns him personally. We do not lay down any general rule because there may be cases where that is impossible, as for example in a court where there is only one judge or two or both are attacked. Other cases may also arise where it is more convenient and proper for the judge to deal with the matter himself, as for example in a contempt in facie curiae.
All we can say is that this must be left to the good sense of the judges themselves who, we are confident will comport themselves with the dispassionate dignity and decorum which befits their high office and will bear in mind the oft-quoted maxim that justice must not only be done but must be seen to be done by all concerned and most particularly by an accused person who should always be given, as far as that is humanly possible, a feeling of confidence that he will receive a fair, just and impartial trial by judges who have no personal interest or concern in his case.'
20. Here, the position was that at the time these two cases came up for hearing there were only four Judges in the High Court, including the Chief Justice. The writ petitions including O. J. C. No. 418 of 1967 filed by Sri Santosh Kumar Sahu in which Dr. H. K. Mahtab and Sri R. N. Singh Deo were made opposite parties were pending and were in fact actually heard and judgment reserved by Mr. Justice G. K. Misra and Justice S. K. Ray who both by name were specifically mentioned in the 'representation petition dated January 30, 1968 filed by Sri Santosh Kumar Sahu. There was a specific reference in paragraph 2 of that petition to this O. J. C. No. 418 of 1967 pending decision before these two particular Judges, and the petitioner expressed certain apprehensions and fears that these two Judges might be influenced by the presence of Dr. H. K. Mahtab, a party in the said writ petition, at the said function at the High Court premises and by the alleged undue special distinction given to Dr. Mahtab in the speech of the Chief Justice and also by the alleged undue honour shown to him otherwise in the course of the function and at Lunch--all as alleged in the said representation petition.
The reference to these two Judges Mr. Justice G. K. Misra and Mr. Justice Ray occurs in, inter alia, paragraphs 2 and 17 and 20 of the representation petition which are quoted below :
'2. That the said O. J. C. No. 418 of 1967 was heard before a Division Bench of this Hon'ble Court consisting of the Hon' ble Mr. Justice G. K. Misra and Hon'ble Mr. Justice S. K. Ray very recently.'
'17. That on the occasion when the speech was delivered addressing the honoured guests on the occasion the Hon'ble Mr. Justice G. K. Misra and the Hon'ble Mr. Justice S. K. Ray were both present in the front row forming part of the audience.'
'20. That the distinction offered to Dr. H. K. Mehtab on the aforesaid occasion has had the effect of undermining the confidence in the court of the public and of the petitioner and the petitioner has every reason to apprehend that it is likely to influence the mind of Hon'ble Mr. Justice G. K. Misra and Hon'ble Mr. Justice S. K. Ray in whose presence the speech was delivered and the distinction was given by the Chief Justice of the Court himself.'
21. In this background, therefore, it was obviously impossible to associate the aforesaid two Judges with the hearing of the present two contempt cases and the only other alternative left was for the remaining two Judges, including the Chief Justice (myself) to hear them.
22. There were also other special circumstances which weighed with the Chief Justice to be on the Bench for the hearing of these two contempt cases. It was hs alone who had the best knowledge of all the facts about the Flag-Hoisting Function fixed to be held on the Republic Day on January 26, 1968 at the High Court premises --a function which he organised down to every detail, including the timing of the various items of the programme, the persons to be invited, the considerations on which invitations were sent to particular persons on such an occasion, the background of the printed speech that he made, the sequence in which the programme for the function was to be arranged, the manner in which the guests, including the Governor, the Chief Minister and other persons, were to be directed from the High Court lawn towards the High Court building for Lunch and for being shown round the various additions, alterations and improvements, including the Tower, the Fountain and the different wings of the building and his reasons for taking a particular course of action.
Indeed the Chief Justice was in the best position to clarify all matters which are alleged to have caused misapprehensions and misunderstandings among certain sections of the public and such clarification was necessary in public interest. In fact, Sri Santosh Kumar Sahu in his affidavit dated February 20, 1968 himself expressed as follows :
'Certain incidents happened on the Republic Day on 26-1-68 which, if unexplained, might lead to some misapprehensions in the mind of the public and the Hon'ble Chief Justice did explain those matters in the open court to allay such fears from the mind of the people, though he said on that occasion that what he said was out of Court and meant only for those who are present in Court. It should be appreciated that though some of the observations gave me an impression that some of the events referred to in my representation petition filed on 30-1-68 were unintentional and just happened in the course of events, there are still a large section of the people outside who should know the course of events before the doubts and fears in their mind are removed.'
This justified the necessity of the Chief Justice being a member of the Bench to hear the cases.
The Editor of the 'Kalinga' also expressed to the same effect in that he stated in his affidavit that, if what Chief Justice had spoken in Court on February 15, 1968 been known before, there would have been no scope for such misunderstanding and comment. There were thus special reasons which called for the Chief Justice being on this Bench.
23. This view is also supported by the Full Bench decision of the Lahore High Court in In Re; K. L. Gauba Barrister-at-Law AIR 1942 Lah 105 where contempt proceedings were drawn against one K. L, Gauba for scandalising the Chief Justice and another Judge of the Lahore High Court by publishing a book called 'New Magna Carta . One of the preliminary objections taken was that as the publication cast serious reflections on the Chief Justice and Monroe J. in their capacity as Judges of the Lahore High Court they were disqualified from sitting as members of the Bench and hearing the said contempt proceeding.
The Lahore High Court disallowed the objection following the authority of some earlier decisions in Re. Motilal Ghosh, ILR 45 Cal 169 = (AIR 1918 Cal 988) (SB); In Re. Murli Manohar Prashad, ILR 8 Pat 323 = (AIR 1929 Pat 72) (FB) : In the matter of William Taylor 44 Ind Cas 930 = (AIR 1918 Cal 713) and the famous Allahabad case where Sir Iqbal Ahmad C. J. had been, maligned by the Hindusthan Times and him-self was one of the Judges who heard the case.
The Lahore High Court decided that in such cases the practice has been for Judges who have been defamed to hear the case and to state in their judgment the facts within their knowledge or their reasons for taking a particular course of action. Chief Justice Sir Douglas Young delivering the judgment of the Lahore Full Bench laid down the law to be this :
'While it is unpleasant for any Judge to have to sit in judgment in a case in which he has been personally attacked, I consider that it is his duty to do so where, as in this case, he has been the subject of a malicious and impudent publication containing imputations which are obviously false and of the falsity of which he himself has the best knowledge. I will go further and say there is no alternative but to sit, as the authorities to which I have referred clearly indicate, that it is impossible to vindicate the reputation of the Court which has been attacked by taking proceedings in any court for libel or otherwise. The sole object of these summary proceedings is to vindicate the prestige of the Court. They are not to establish the position of an individual Judge. Unless an answer in this case is given to the scandalous allegations made against me and my brother Judge, the position of the High Court which has been attacked cannot be said to be reestablished. It is for these reasons that Monore J. and myself have taken part in these proceedings. No other Judges will be in a position to answer the allegations and there may be persons who have read this book and do not know its author who might be impressed by it.'
24. In the present case also, for the reasons stated above, the Chief Justice had no alternative but to sit on the Bench to hear these cases. This leads us to a consideration of the cases on merits.
C. Original Criminal Misc. Case No. 4 of 1968 arising out of the representation petition dated January 30, 1968 filed by Sri Santosh Kumar Sahu.
25. The alleged derogatory statements in paragraphs 3, 7, 12, 13, 14, 15, 16, 17, 20, 24 and 25 of the representation petition, on which notices were issued on the opposite parties why they should not be committed for contempt, all refer to what took place during the function in the High Court on the last Republic Day and their alleged bearing on the pending writ petitions including O. J. C. No. 418 of 1967. The gist of what the opposite party No. 1 Sri Santosh Kumar Sahu stated in his impugned representation petition in the offending paragraphs which contained derogatory statements against the High Court in general and the Chief Justice in particular in that the said paragraphs scandalised or had a tendency to scandalise the Judges constituting the Court and undermining its dignity in the estimation of the public and impeaching its impartiality in the. dispensation or justice is seriatim set out below.
Paragraph 3 : The Chief Justice did not hear O. J. C. 418 and transferred the same to be heard by Mr. Justice G, K. Misra and Mr. Justice S. K. Ray although the rules prescribe that writ petitions should be heard before a Division Bench of which the Chief Justice should be a member.
Paragraph 12 : In the situation as described in the previous paragraphs there was an arrangement for flag hoisting ceremony in the High Court premises on the Republic Day at 11.30 a. m. which was alleged to be not the usual time for hoisting of the National Flag.
Paragraphs 13, 14, 15 : These paragraphs questioned the propriety of the invitation to Dr. Mahtab to the function including the Lunch.
Paragraph 16 : This paragraph commented on the special address to Dr. H. K. Mehtab in the printed speech delivered by the Chief Justice and the alleged special distinction shown to him on the occasion.
Paragraph 17 : This paragraph which has already been quoted, comments on the alleged special honour done to Dr. Mahtab by the manner he was addressed in the printed speech in the presence of Mr. Justice G. K. Misra and Mr. Justice S. K. Ray who were in the front row of the audience.
26. The three concluding paragraphs 20, 24 and 25 which are alleged to contain the most offending matters are quoted below for facility of better appreciation.
'20. That the distinction offered to Sri H. K. Mahtab on the aforesaid occasion has had the effect of undermining the confidence in the court of the Public and of the petitioner and the petitioner has every reason to apprehend that it is likely to influence the mind of Hon'ble Mr. Justice G. K. Misra and Hon'ble Mr. Justice S. K. Ray in whose pre-sence the speech was delivered and the distinction was given by the Chief Justice of the Court himself.
24. That this statement of the Hon'ble Chief Justice of Orissa (mentioning in his speech about the co-operation and help of the Chief Minister) created a belief in the mind of the public that the Hon'ble Court feels obliged to Sri R. N. Singh Deo for the co-operation and help sought for by this Hon'ble Court and an ordinary citizen stands at a disadvantage in getting a remedy against the present Government if he has it in law from this Hon'ble Court since it is already under obligation to Sri R. N. Singh Deo for his co-operation and help. Besides Sri R. N. Singh Deo is a party in the afora-said O. J. C. No. 418 of 1967 in which he has filed a counter and the counter is challenged as false and motivated.
25. That this statement has thrown aa indirect aspersion against the previous Ministry and has canvassed for the popularity of the present Ministry by this untrue and uncalled for statement by giving an impression to the public that the previous Ministry refused co-operation and help to the Hon'ble High Court which is only obtained from this present Ministry. This has a direct bearing on the decision in O. J. C. No. 418 where the present Ministry and the previous Ministry are in dispute.'
27. In the remaining portion of the said representation petition, paragraph 21 contains an allegation by implication that the Chief Justice showed undue honour to Dr. H. K. Mahtab by conducting him with the Governor round the High Court premises on the date of the function.
Similarly paragraph 22 alleges that the Chief Justice over-emphasised the part played by Dr. H. K. Mahtab in bringing about the creation of a new High Court for Orissa in 1948 ignoring the part played by Sri Nitya-nanda Kanungo the then Law Minister who was the person mainly responsible for its creation. Paragraph 23 takes exception to the Statement in the speech of the Chief Justice in which he expressed that his dream of having a Tower over the High Court was realised with the co-operation and help of the Chief Minister Sri R. N. Singh Deo, and makes comments suggesting that by making this statement the Chief Justice was indirectly saying that the previous (Congress) Ministry did not help him to realise that dream.
28. Before dealing with the alleged offending paragraphs it is appropriate here to give the background in which certain matters referred to in the representation petition of Sri Santosh Kumar Sahu which, according to him, raised certain misapprehensions and misunderstandings in the mind of the public, have to be dealt with. These matters were within the knowledge of myself as the Chief Justice, and the reasons for taking the particular course of action in con-nection with such matters--which are alleged to have led to the alleged misapprehensions in the mind of the public--have to be stated in the judgment itself following the practice in such cases, referred to by the Lahore Full Bench as mentioned above.
In fact, the Chief Justice did clarify these matters in open Court on February 15, 1968 When the affidavit of Sri Dinabandhu Sahu was placed before the Court in the course of hearing. It is admitted by the opposite parties that the clarifications made by the Chief Justice on that day to a great extent allayed the alleged fears and misapprehensions from the mind of the public present in Court on that day.
29. The few matters in the said representation petition about which the Chief justice stated his reasons for taking a particular course of action are stated to be these : (After stating the reasons, the judgment proceeded).
30. Then we come directly to the merits of the charge of alleged contempt contained in paragraphs 20, 24 and 25, quoted above, which are said to be the most offending portions of the representation petition filed by Sri Santosh Kumar Sahu. These paragraphs have a direct reference to the pending writ petition O. J. C. No. 418 of 1968 which was heard by Mr. Justice G. K. Misra and Mr. Justice S. K. Ray and Judgment remained re-served therein at all material times.
In paragraph 20, Sri Santosh Kumar Sahu expressed his apprehension that the Court which was to decide the pending writ petition was likely to be influenced for the reasons stated in the said paragraph. The allegations in paragraphs 24 and 25 of the representation petition were with particular reference to the following sentence in the speech of the Chief Justice quoted in paragraph 23, namely :
'I had always thought of the Tower, but it was not until 1967 that my dream was realised with the co-operation and help of the Chief Minister Sri R. N. Singh Deo.'
It was with reference to this sentence in the speech of the Chief Justice that it was alleged in the said two paragraphs 24 and 25 of the representation petition that it created a belief in the mind of the public that the Orissa High Court feels obliged to Sri R. N. Singh Deo for the co-operation and help sought for by the Court and that an ordinary citizen stands at a disadvantage in getting a remedy against the present Government, if he has it in law, from this Court. It was also alleged that this Court is already under obligation to Sri R. N. Singh Deo for his co-operation and help; it was further mentioned that Sri R. N. Singh Deo was a party in the said O. J. C. No. 418 of 1967 in which he had filed a counter and the counter is challenged as false and motivated; that the aforesaid sentence in the speech created an impression in the public that the previous Ministry refused co-operation and help to this Court which, by 'canvassing for its popularity', could be obtained only from the present Ministry which is alleged by re-presentationist to have a 'direct bearing' on the decision in the pending O. J. C. No. 418 of 1967.
In the show cause notice the charge against Sri Santosh Kumar Sahu is that the aforesaid derogatory statements made by him against the Orissa High Court in general and the Chief Justice in particular, scandalised or had the tendency to scandalise the Orissa High Court and the Honourable Judges constituting the same, undermining its dignity in the estimation of the public anal impeaching its impartiality in the dispensation of justice,
31. The queston is : Apart from any other paragraphs, do the allegations contained in the above quoted paragraphs 20, 24 and 25 of the representation petition amount to contempt of court In my opinion, the answer is yes.
The point for examination is whether the offending passages are of such character and import or made in such circumstances as would tend to hinder or obstruct or interfere with the due course of administration of justice by the Court. To begin with, the representation petition dated January 30, 1968 containing these offending passages was written by Sri Santosh Kumar Sahu who was himself a petitioner in one of the writ petitions O. J. C. No. 418 of 1967 then pending for judgment. The said writ petitions were heard by two of the Hon'ble Judges of this Court from January 9 to January 17, 1968 and judgment was reserved. The actual timing of filing the said representation petition containing the offending passages is of significance. The manner of publication, i. e. by means of a 'representation petition' filed in the High Court is also not without significance.
32. What was the real meaning--the purpose--of the offending passages in the so-called representation petition ?
33. The gist of what was argued on behalf of the opposite parties, purporting to have been by way of explanation, was, in substance, this :
There are 25 paragraphs in the representation petition. Apart from inferences, the facts stated therein with regard to what took place at the function of First Flag Hoisting over the Tower held in the High Court premises on January 26, 1968 are not controverted by anybody. Paragraphs 1 to 11 are said to provide the key to understanding the nature of the grievances made from paragraph 12 onwards. It was submitted that the impugned representation petition, if read as a whole, was nothing more than a complaint that the representationist and those who think like him were rightly apprehensive of the powerful likely effect of the words and actions of the Chief Justice, entertained a fear that the claims made by or on behalf of Dr. Mahtab in the pending O. J. C. No. 418/67 as mentioned in the impugned representation petition might influence the mind of the Judges who heard the writ petitions in the light of the impressions formed by them at the function that it was this apprehension which was given expression to in the impugned petition.
As regards paragraph 24, it was argued that that portion of the speech of the Chief Justice in which he referred to the help and co-operation of the present Chief Minister Sri R. N. Singh Deo created a feeling in the mind of the public that the Court felt obliged to the Chief Minister Sri Singh Deo and that an ordinary citizen stands at a disadvantage in getting remedy from this High Court against the present Government; in other words, paragraph 24 speaks of the possible effect of the speech on the public mind, and should not fairly be read as an independent allegation by the representa-tionist; that in paragraph 24 the representa-tionist merely reproduced the belief in the mind of the public created by the said statement in the speech and that there is no extraneous element to bring it within the law of contempt.
It was submitted that the grievances expressed in the petition are, inter alia, that Dr. H. K. Mahtab was entertained in the distinguished guests' table for Lunch, that there was no apparent justification for giving him such undue distinction or for specially addressing him in the speech of the Chief Justice which was heard by the audience among whom were the two Hon'ble Judges who were in seisin of the writ petitions. It was further submitted that paragraph 20 merely expressed the apprehension in the mind of the persons present that the distinction offered to Dr. Mahtab on the occasion had the effect of undermining the confidence in the court of the public and it was likely to influence the mind of the said two Hon'ble Judges in whose presence the speech was delivered.
34. It was argued on behalf of the opposite parties that it was only criticism of the speech of the Chief Justice and expression of the terrific anxiety of those identified with the feelings of the people thrown out of power (referring to Congressmen). It was stated that the whole object of the alleged offending passages, namely paragraphs 20, 24 and 25 in the representation petition was to put forth their grievance and anxiety to show that the previous Ministry (referring to the Congress) did not discourage the construction of the Tower.
It was submitted that where a particular action or speech of a Judge is the basis for contempt alleged either by way of criticism or otherwise, then if the facts stated are true, an allegation that such words or acts create a lack of confidence or faith in the administration of justice will remain within the limits of the exercise of the normal right of freedom of speech or expression and that it is only when these facts are denied and any improper motive is imputed, that the Court can legitimately say that one cannot exercise such right of freedom of speech at all; and that when the alleged contemner pleads or believes that he has not committed contempt, there is nothing wrong if he pleads innocence so that he may get the matter of law settled.
35. Thus, the entire trend of the arguments, urged on behalf of the opposite parties, in substance, purports to be in justification of what was stated in the offending paragraphs on their own interpretation thereof which however, in our opinion, is not tenable. In fact all their efforts to justify the said offending paragraphs cannot succeed in view of the settled position in law. The Supreme Court in Brahma Prakash v. State of Uttar Pradesh, AIR 1954 SC 10 and Hiralal v. State of U. P., AIR 1954 SC 743 laid down that in order to constitute contempt, it is not necessary that there should in fact be an actual interference with the course of administration of justice, but it is enough if the offending publication is likely, or if it tends in any way to interfere with the proper administration of law. Such insinuations as are implicit in a passage in question are derogatory to the dignity of the Court and are calculated to undermine the confidence of the people in the integrity of the Judges. Whether the passage is read as fulsome flattery of the Judges, or is read as containing insinuations, or the rest which contain an attack on a party in the pending proceedings is taken separately, it is equally contemptuous of the court in that the object of writing it and the time and place of its publication were, or were calculated, to deflect the Court from performing its strict duty either by flattery or by a veiled threat jor warning or by creating prejudice in its mind against a party to the proceedings.
36. This Court is also conscious of the position in law that the power of committal for contempt must be wielded with the greatest of care and caution, should be exer-cised with the greatest of reluctance and the greatest of anxiety and only with the object of seeing that the dignity and authority of the Court be not impaired. Courts in India derive their authority from the Constitution which the people of this country have themselves adopted and given unto themselves and hold it in trust for the security and bene-fit of the people. The power that the Judges are called upon to exercise is, but the authority of the people themselves, vested by the Constitution in law courts. Contempts against law courts are insults to the authority of the people and their Constitution and not to their humblest agents the Judges. Where-ever there is substantial exhibition of such contumacious conduct towards law courts, Judges must uphold the Constitution and the majesty of the courts. The extreme proposition that Judges can never be influenced or embarrassed by extraneous publication is not correct. A prejudicial publication concerning a pending proceeding may amount to contempt and is risky business; but the trained mind of the Judge is likely to ignore extraneous matters and may not be embarrassed or influenced by each and every prejudicial publication. If, however, the publication be so grossly improper that it embarrasses the Judge, then it may be treated as contumacious and dealt with accordingly.
37. Learned counsel for the opposite parties maintained that the passages in question were perfectly innocuous and were only by way of a representation expressing griev-aaace towards the court, and that such expression of grievance could not have the slightest effect on the minds of the Judges of the High Court.
38. We are unable to accept the argument that a mere ventilation of grievance was the sole or even the main object with which these offending paragraphs were written or with which the representation petition was filed at the time when the judgment in the pending writ petitions was reserved. In fact, the representation petition was written and given publication by presentation in the High Court at a time when O. J. C. No. 418 of 1967 filed by the very represen-tationist and allied O. J. Cs. were pending before the two Hon'ble Judges of this Court for delivery of judgment after hearing.
39. What then, we ask, was the purpose of writing these offending paragraphs and what was the object of the filing of the representation petition in the High Court itself at a time when the court had reserved judgment in the pending writ petitions including O. J. C. No. 418 of 1967 to which the representationist was himself a party Surely, there was hidden in the representation petition, with the offending passages, a warning : indeed, it was by way of a sinister move, a hidden threat to blackmail the Orissa High Court and its Judges with reference to a particular proceeding pending decision in this Court, all with an ulterior motive as so obvious. The object of writing these offending paragraphs and particularly of filing the representation petition in the High Court at the time it was actually done was quite clearly to influence or affect the minds of the Judges and to deflect them from the strict performance of their duties; the offending paragraphs and the time and place of their publication certainly tended to hinder or obstruct the due administration of justice; the Court and its Judges were scandalised with a view to diverting the due course of justice. This clearly amounts to contempt of this Court.
40. We shall now deal with the role of the Advocates who were implcaded as opposite parties Nos. 2, 3 and 4 in this contempt case (Orgl. Crl. Misc. Cnse No. 4 of 1968). Sri Dinabandhu Sahu Advocate sign-ed and presented the impugned representation petition filed on January 30, 1968 by Sri Santosh Kumar Sahu (opposite party No. 1 in this proceeding) containing allegations which, we hold, amount to contempt of court for reasons aforesaid. Sri Raghu-nath Das did not sign the impugned petition and denied having presented it which was drafted by Sri Dinabandhu Sahu; he (Sri Das) however admitted that he was engaged by Sri Santosh Kumar Sahu to appear for him, along with the senior counsel Sri Dinabandhu Sahu to render him professional assistance. Sri Das, in his affidavit in reply to the impugned petition stated that he was satisfied that the matters in which he was engaged were prima facie true and that the statements made in the representation petition were never meant to be, and were not derogatory to the High Court in general or the Chief Justice in particular; in the end Sri Das stated that he had 'no reasons to regret' his engagement in the cause. The junior Advocate Sri S. F. Ahmed denied having presented the impugned petition drafted and corrected by Sri Dinabandhu Sahu. He said that he came to know that the petition was with the Clerk of Sri Dinabandhu Sahu who was busy in the lower courts; on the date it was 'filed, at 3.45 p. m. Sri Santosh Kumar Sahu himself came with his Advocates and requested Sri Ahmed to identify him before the Oaths Commissioner Sri Ahmed had just returned from his village and he got 10 minutes time to go through the impugned petition and thereafter Sri Santosh Kumar Sahu asked to sign the Vakalat and he accepted the same.
41. All the three Advocates asserted that it was their duty as Advocates to place their client's cause fearlessly before the Court. In support of the stand taken by the Advocates appearing for Sri Santosh Kumar Sahu, reliance was placed on Rule 15 of the Rules framed tinder Section 49(1)(c) of the Advocates Act, 1961 laying down the standard of professional conduct and etiquette to be observed by Advocates. Rule 15 reads as follows :
'It shall be the duty of an Advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to him-self or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence.'
42. Rule 15 is however subject to the Preamble which says that an Advocate shall at all times comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity, may still be improper for an Advocate.
The Preamble further says that without prejudice to the generality of the foregoing obligation, an Advocate shall fearlessly uphold the interests of his client, and his conduct conform to the rules both in letter and spirit. There can be no doubt that the interests of the client which the Advocate has to uphold fearlessly must be lawful interests befitting his status as an officer of the Court. This aspect of the Advocate's duty to his client is further reiterated in Rules S and 4. Rule 3 states that an Advocate shall not influence the decision of a Court by any illegal or improper means; private communications with a Judge relating to a pending cause are forbidden. Rule 4 lays down that an Advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practice or from doing anything in relation to the Court, opposing counsel or parties which the Advocate himself ought not to do. An Advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouthpiece of the client, and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in Court. The Rules made under the Advocates Act, 1961 thus do not alter the position that the Advocate, as the Preamble indicates, is primarily an officer of the Court and has responsibilities to the Court and his duty to the client cannot override this consideration.
43. In this context the legal position of an Advocate in relation to his obligation to the Court and his duty to the client is laid down in M. Y. Shareef v. The Hon'ble Judges of the High Court of Nagpur, AIR 1955 SC 19. In this particular respect there has been no change in the law even after the enactment of the Advocates Act, 1961. The Supreme Court held that it should be widely made known that an Advocate who signs an application or pleading containing matter scandalising the Court which tends to prevent or divert the course of justice is himself guilty of contempt of court unless he reasonably satisfies himself about the prima facie existence of adequate grounds therefor and that it is no duty of an Advocate to his client to take interest in such applications; on the other hand his duty is to advise his client for refraining from making allegations of such nature in such applications. Their Lordships observed that a section of the Bar seemed to be labouring under an erroneous impression--as in the present case--that when an Advocate is acting in the interests of his client or in accordance with his instructions he discharges his legitimate duty towards him even when he signs an application or a pleading which contains matter scandalising the Court with a view to diverting the due course of justice and that when there is a conflict between his obligation to the Court and his duty to the client the latter prevails. In the aforesaid judgment, the Supreme Court rooted out this misconception by a clear and emphatic pronouncement as laid down above.
44. In the present case, Sri Dinabandhu Sahu Advocate signed and presented the impugned representation petition. The other Advocate Sri Raghunath Das though he did not sign the petition justified the matters contained in the impugned petition and he also stated in his affidavit that he had 'no reasons to regret' his engagement in the cause. It was by reason of their respective role and conduct as Advocates as aforesaid that notice for contempt had to be issued against both Sri Dinabandhu Sahu and Sri Raghunath Das along with the re-presentationist himself. Apparently, they have not realised the grave implications of their conduct in asserting to have acted in the interest of their client. We hold that their conduct amounts to contempt of Court.
45. The position of the other Advocate Sri S. F. Ahmed is different in that he had no opportunity of satisfying himself about the contents of the impugned petition. In his affidavit he fairly explained the circumstances in which he was made to sign the Vakalat. He denies having presented the impugned petition. He stated that he returned from his village on the very same day January 30, 1968 when the impugned petition was filed in Court; it was in Court that he came to know that such a petition would be filed; he wanted to see the petition himself but it was with the Clerk of Sir Dina-bandhu Sahu; he had only sufficient time to go through its contents before it was filed and he had to sign the Vakalat as requested by his client. He is a junior Advocate aged about 23 years with only about two years standing. In these circumstances we do not propose to take a serious view of his part in the matter.
D. Orgl. Cri. Misc. Case No. 3 of 1968 filed by Sri S. C. Biswal arising out the Kalinga publications--News items and editorials.
46. The relevant portion of the impugned news item in the Kalinga' dated January 28, 1968 (in English translation) is as follows :
'Flag Hoisting Ceremony of the Orissa
High Court Tower* * * * ** * * * *
Surprise at Mahtab's presence during pendency of case
* * * * *'Though the Governor was formally invited for the flag hoisting, presence of the Chief Minister Singh Deo and the Jana Congress Leader Sri Muhtab among the special invitees was much criticised among the spectators. The criticism was to the effect that while their case was under consideration in the High Court, their presence and the welcome extended to them by the Chief justice had added to the prestige of none'.
* * * * *'Many were surprised at the mention of the name of Sri Mahtab in the printed address of the Chief Justice. The need for maintaining a high standard while the case against them was pending was felt by all.'
In the affidavit filed by the Editor of the 'Kalniga' in reply to the show cause notice it was explained that it was all out of some misunderstanding of the situation and if the matters, as subsequently clarified by the Chief Justice in open court, were known before there would have been no scope for any such misunderstanding and comments as published. That apart, what was published by the newspaper was only a news item about the function held in the High Court. Besides, the report of the news related to a social function in the High Court in connection with the First Flag Hoisting over the newly constructed High Court Tower. The Court, after careful consideration, is satisfied that the publication of the news as aforesaid in the 'Kalinga' dated January 28, 1968 had neither interfered with nor had a tendency to interfere with the administration of justice as such. The substance of the report is the alleged criticism by some spectators that the invitation accorded to certain persons added to the prestige of none.
47. Next, in the sequence of events, the 'Kalinga' published the impugned editorial on January 31, 1968. The relevant portion of the impugned editorial including the caption (as translated in English) is as follows :
'Oh King, what thou did? Thou lowered the image of Vishnu into dust.
The Hon'ble Chief Justice of the Orissa High Court, in a delightful function held on the last Republic Day in the course of a beautiful speech said : In this process of steady progress, came the dream of the present Chief Justice--myself--for a High Court with a Tower and a Fountain sur-rounded by green lawns'. He also compared the fountain with uninterrupted flow of justice. Indeed, we congratulate him for his dream having been realised.
But we are afraid if for one reason or other due to some mechanical failure the fountain failed to function, or the subterranean flow dried up then will the fountain of justice also dry up? We fail to understand how we can free ourselves from this anxiety. We are reminded once a Chief Justice had dreamt of installing a clock on the tower of the Calcutta High Court as a symbol of Justice. But the project was abandoned as it was apprehended that unless the clock was properly winded, it might cease to function. From that experience, now all concerned should be careful that the fountain does not dry up. Otherwise, the dull-witted would be anxious that the flow of justice has been interrupted.
But with all humility we submit that Justice is more internal or qualitative, than being external or formal; that can only be well preserved by correct traditions and not by constructing towers or fountains.'
48. In his affidavit, the Editor clarified the various aspects of the said editorial in-cluding (i) congratulation to the Chief Justice for realisation of his architectural draams, (ii) a theoretical and casual discussion on the water-fountain, with advice to maintain it properly so that the misgivings of the dull-witted do not arise.
49. We accept the construction that the comments by the newspaper on the fountain, made in figurative language were not meant to be In any way derogatory, but were intended to be a well meaning homily without any intention to make a mockery of it; we must observe however that the publication contained somewhat unbalanced statements which, though not amounting to contempt, were not in good taste. However we do not propose to take a serious notice of the matter in view of the submissions made in the affidavit in reply to the show cause notice.
50. Finally, came the impugned news item published in the 'Kalinga' dated February I, 1968 wherein was published in detail the fact of the filing of the representation petition by Sri Santosh Kumar Sahu on January 30, 1968.
In his affidavit in reply to the show cause notice, the Editor submitted that the publication of this news item was a fair, impartial and nearly verbatim report of the said petition filed in the High Court by Sri Santosh Kumar Sahu and that such publication cannot be said to be tendentious; the report of the news so published had neither the tendency to interfere with the administration of justice nor to bring the authority of the Court into disrepute.
51. The undisputed position in law--which it is unnecessary to repeat here in details--is that journalists have the fundamental right to carry on their occupation guaranteed to them under Article 19(1)(g) of the Constitution and that the right to freedom of speech and expression guaranteed under Article 19(1)(a) includes the right to publish as journalists, all proceedings which they have witnessed and heard. In this connection, we are reminded of the following famous observations of Lord Atkin in Ambard v. Attorney General for Trinidad and Tobago, AIR 1936 PC 141, 145.
'The path of criticism is a public way: the wronghraded are permitted to err therein; provided that the members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.'
52. We accept the submissions made on behalf of the Editor and the Printer and Publisher of the 'Kalinga' (who are opposite parties 1 and 2 in this case) that what they did was intended to be nothing more than to give as news an impartial and verbatim report of the petition dated January 30, 1968 filed by Sri Santosh Kumar Sahu in the High Court. The Editor, Printer and Publisher of the 'Kalinga' are let off with the hope that the Press in exercise of their undoubted right of expression and fair comment would use their discretion with circumspection, and with a sense of propriety and balance.
53. With regard to opposite party No. 3 Sri Santosh Kumar Sahu, in view of our finding in Orgl. Cri. Misc. Case No. 4 already dealt with earlier, in which he is also a party, we do not think it necessary to deal with his case here separately. E. Result
54. On the question of sentence in respect of the guilt of the opposite patties to the extent as found, there are certain extenuating circumstances as stated here-under.
55. Sri Santosh Kumar Sahu stated in his affidavit that it was all the outcome of some misunderstanding of the situation which, until explained, had given cause for certain misapprehensions, but those misapprehensions were allayed subsequently by the Chief Justice in the course of his clarifications made in open Court on February 15, 1968. It was on this stand that Sri Santosh Kumar Sahu pleaded justification of the publications made in the impugned representation petition dated January 30, 1968; but in our opinion this plea of justification cannot extend to the offending passages in paragraphs 7, 20, 24 and 25 which, for reasons already stated, clearly amount to contempt.
56. As regards the Advocates, Sri Dinabandhu Sahu stated in his affidavit that the inferences drawn from the impugned representation petition are 'outcomes of misunderstanding of the whole situation'. Even so, both Sri Dinabandhu Sahu and Sri Raghunath Das took the plea of justification asserting that under the Rules made under the Advocates Act, 1961 they had a right and duty to their client (Sri Santosh Kumar Sahu) to place his case Fearlessly regardless of the consequences to themselves. We have already shown that such defiant justification is wrong as such duly cannot extend to the defence of unlawful acts of clients.
57. At the stage of hearing all the opposite parties through their Counsel asked for forgiveness. On March 18, 1968--the first day of hearing--the learned Counsel Mr. A. S. R. Chari appearing on behalf of all the opposite parties asked for 'forgiveness of the Court out of generosity' as he put it publicly in open Court, but nothing in writing either by way of apology or even regret was tendered in Court.
58. After careful consideration of all the circumstances we have decided that thy dignity of the High Court would be suffi-ciently upheld if on the question of sentence the opposite parties are dealt with as follows :
Orgl. Cri Misc. Case No. 4 of 1968 :
59. Opposite party No. 1 Sri Santosh Kumar Sahu is sentenced to pay a fine of Rs. 300. As regards opposite party No. 2 Sri Dinabandhu Sahu, he not only signed the representation petition but is stated to have drafted and corrected it. As a very senior member of the Bar and as a former Advocate-General he is expected to have known better. We would accordingly direct him to pay a fine of Rs. 100. As regards opposite party No, 3 Sri Raghunath Das who is also a fairly senior Advocate, his assertion that he had 'no reason to regret his engagement in the cause' amounts to a plea of justification of his conduct; but in the circumstances we think it will suffice to issue a strong admonition and warning For his conduct. As regards opposite party No. 4 Sri S. F. Ahmed, having regard to the circumstances stated by him in his affidavit and in view of the fact that he is a junior Advocate with only about two years' experience at the Bar, we would drop the proceedings against him with the hope that he will be more careful in future.
Orgl. Cri. Misc. Case No. 3 of 1968 :
60. The proceedings against the Editor and the Printer and Publisher of 'Kalinga' are dropped with the hope that the freedom of expression guaranteed to journalists should always be exercised with due sense of propriety, decorum and balance.
61. In view of the sentence of fine imposed on Sri Santosh Kumar Sahu in Orgl. Cri. Misc. Case No. 4 of 1968 where he figured as opposite party No. 1, we do not think it necessary to impose a separate sentence in this proceeding.
62. The two cases are disposed of accordingly. There will be no order as to costs in these proceedings throughout.
A. Misra, J.
63. I agree that the proceedings in Orgl. Cri. Misc. Case No. 3 of 1968 be dropped. I also agree that the three contemners (opposite parties 1, 2 and 8) in Orgl. Cri. Misc. Case No. 4 of 1968 are guilty of contempt of Court.
64. My Lord the Chief Justice has dealt in detail with the reasons--with which I fully agree--why these cases had to be heard by this Bench and could not be placed before any other Bench,
Orgl. Cri. Misc. Case No. 3 of 1968
65. The derogatory statements which form tho subject-matter of the alleged contempt in this proceeding are contained in a news item or the daily 'Kalinga' dated 28-1-1968; the editorial dated 31-1-1968 and another news item dated 1-2-68. Mr. Behura, learned counsel for petitioner at whose instance this proceeding was initiated has urged that opposite parties have com-mitted contempt of Court by the statements contained in the aforesaid three issues of the newspaper. According to him, the entire news item dated 28-1-68 created doubts in the public mind that prejudice was likely to be caused in a pending proceeding in which the Chief Minister and Dr. Mahtab were parties. Similarly, it is contended that the entire news item dated 28-1-1968 and particularly paragraphs 2 and 4 thereof had the effect of scandalising the Court as by implication is suggested that Judges are influenced by extraneous events and have lost their independence and impartiality. So far as the editorial of 31-1-1968 is concerned, Mr. Behura contended that it amounts to maligning of the Chief Minister and the Chief Justice besides containing insinuations that the High Court is not alive to its noble traditions and the reference to the fountain also contains an indirect insinuation against the administration of justice. As regards the news item of 1-2-1968, it is urged by Mm that if the statements made by Shri Santosh Kumar Sahu in his so-called representation filed in Court amount to contempt, publication of the same equally amounts to contempt when such publication has not been expressly permitted.
66. The Editor of the newspaper 'Kalinga' in his affidavit in reply has stated that so far as the news item dated 28-1-1968 is concerned, it is nothing more than a factual reporting relating to a social function held in the High Court high-lighting certain statements attributed to the Chief Minister on that occasion and commenting on impropriety of the presence of Dr. Mahtab--a party to a proceeding then pending in Court.
It is asserted that there is no aspersion direct or indirect against administration of justice and nothing has been stated which has the effect or tendency of interfering with the administration of justice. Regarding the editorial of 31-1-1968, it is stated that the same is a humorous reference to the fountain newly installed with the advice to see that it is kept in proper working order and not neglected. With regard to the news item dated 1-2-1968, it is alleged that it is nothing more than a publication in detail of filing of the petition of representation by Shri Santosh Kumar Sahu on 30th January and the same is a fair, impartial and verbatim report of the substance of the petition.
67. It seems well established that a notice or rule for contempt of Court must set out precisely and in detail the deeds or words wh ich are said to constitute contempt, the obvious reason being that unless such details or the charges are furnished, the alleged contcmner will be placed in a definite disadvantage as he will not be in a position to know the actual charge which he is to answer or explain vide AIR 1958 Cal 474, Dulal Chandra Bhar v. Sukmar Banerjee. In this case, the notice issued to the contemners was confined to specific portions of the three publications, which it was stated scandalised or ridiculed or had the tendency to scandalise or ridicule the Court and the Hon'ble Judges thereby bringing them down in the estimation of the public. The contention of Mr. Behura that contempt was committed by the news item dated 28-1-1968 by prejudicing the cause of the Chief Minister and Dr. Mahtab in a pending proceeding or that contempt was committed by the news item suggesting by implication that Judges are influenced by extraneous events are beyond the scope of the notice given to the contemners. So also, the argument of Mr. Bchura that the editorial dated 31-1-1958 had the effect of maligning the Chief Minister and the Chief Justice or suggesting that the High Court is not alive to its noble traditions are beyond the scope of the notice. Therefore, confining to the particular derogatory statements of which notice was given and the replies thereto, I agree with my Lord that in view of the explanation offered, the proceedings be dropped.
Orgl. Cri. Misc. Case No. 4 of 1968 :
68. In this proceeding, the derogatory statements of which notice was given to the contemners are contained in paragraphs 3, 7, 12 to 17, 20, 24 and 25 of the petition filed by Shri Santosh Kumar Sahu through his Advocates. Learned counsel for con-temners urges that para 12 onwards of the petition purport to express the main nature of the grievance of the petitioner and the facts stated in paragraphs 1 to 11 which have not been controverted provide the key to understand the main nature of the grievance. In short, the argument is that the petition read fairly amounts to nothing more than a complaint and that petitioner and those who think like him are apprehensive of the powerful likely effect of the words and action of the Chief Justice. Similarly, it is urged that the Chief Justice fills distinct and independent roles, firstly, as the Head of the Judiciary of the State; secondly, as the Head of the administrative side of the judicial machinery and lastly, as one of the leading personalities of the State.
According to learned counsel, any comment, deeds or words will amount to contempt of Court only where they are directed against the Chief Justice in the seat of justice and that criticism, however, offensive or galling will not amount to contempt of Court if it is directed against the Chief Justice in his role as the Head of the administrative side of the judicial machinery or one of the leading personalities in the State. In other words, the contention is that unless which is said or written directly interferes with the administration of justice or directly brings into contempt administration of justice, a possible result or a possible tendency to do so cannot amount to contempt of Court,
69. It may be that the statements contained in paragraphs 3, 7 and 12 to 17 if dissociated from the rest and considered independently may appear as criticism of the manner in which certain administrative functions were performed on that occasion, but it will not be correct to dissociate them from the other paragraphs and consider them distinct from the context in which they have appeared. Apart from these paragraphs, the statements contained in paragraphs 20, 24 and 25 read separately or together with the rest of the petition clearly amount to contempt of Court. Generally speaking, any act or deed which brings or tends to bring the authority and administration of the law into disrespect or disregard or interferes with the administration of justice or prejudice parties, litigants or their witnesses during litigation amounts to contempt of Court.
On analysis, paragraph 20 contains the following allegations; firstly, the distinction offered to Dr. H. K. Mahtab has had the effect of undermining the confidence in the Court of the public and the petitioner; secondly, the petitioner who was a party in a pending cause apprehended that the said distinction given to Dr. Mahtab was likely to influence the minds of the two Hon'ble Judges who were in seisin of the pending cause. Similarly, paragraph 24 with reference to the statement of the Chief Justice in course of his speech to the effect 'I had always thought of having the tower, but it was not until 1967 that my dream was realised with the co-operation and help of the Chief Minister Shri R. N. Sing Deo' contains the following allegations; firstly, the aforementioned statement had created a belief in the mind of the public that the High Court feels obliged to Shri R. N. Singh Deo and secondly, as a result, an ordinary citizen stands at a disadvantage in getting a remedy against the present Government even if he is entitled to it in law.
70. The pertinent question will be as to the effect or these statements in the mind of the public. By the allegations contained in these two paragraphs, petitioner purports to convey in no uncertain terms that the highest seat of justice has lost the confidence of the people and the High Court as a whole feels obliged to the Chief Minister, as a result of which, in any litigation against the State, a citizen cannot expect to get justice or redress of his grievance.
Mr. Chari, learned counsel appearing for contemners urged that paragraph 24 contains and conveys nothing more than the belief created in the mind of the public by the statement of the Chief Justice and that (sic) of is that tho Court feels obliged to the Chief Minister and the ordinary citizen feels that he stands at a disadvantage. In other words, the contention is that criticism is levelled against the Chief Justice in his role as Head of the administrative machinery of the Judiciary or as a leading personality in the State and not against the Chief Justice in the seat of justice and there is no insinuation against the administration of justice or attempt to destroy the confidence of the people in the administration of justice as such. I am unable to agree with either this construction or the contention advanced. The proper test is what impression an ordinary and average reader will obtain by reading the statements contained in those paragraphs. When the Statements in no uncertain terms express that public have lost confidence in the Court in administration of justice and litigant against the State cannot get his legitimate grievance redressed, it is difficult to construe that they amount only to a criticism against the Chief Justice in his role as a leading personality or as Head of the administrative side of the judicial machinery. In my opinion, the statements in those paragraphs have clearly a tendency to bring the authority of the administration of the highest seat of justice in the State to disrepute and shake the confidence of the public in the administration of justice. For these reasons, I respectfully agree with my Lord that the statements contained in the petition filed by Shri Santosh Kumar Sahu (opopsite party No. 1) amount to grave and serious contempt of Court and both himself and his Advocates who signed and filed the petition equally share the guilt, except Shri S. F. Ahmad (opposite party No. 4), in view of the explanation given by him.
71. Lastly, I also agree with my Lord regarding the punishment proposed. No doubt, during the course of hearing Mr. Chari. learned counsel for the contemners asked for 'forgiveness of the Court out of generosity', particularly in view of the Strained relations which existed between the rival political parties which led to some misunderstanding of the whole situation. It may not be out of place to mention that the contemners at no stage have chosen to express any regret or tendered any apology. No doubt, the Court has power to pardon on sincere and contrite apology tendered unconditionally, but in such a case, there cannot be both justification and apology. To seek to justify an act and at the same time seek forgiveness can be nothing short of incongrnous and a party cannot be allowed to blow hot and cold at the same time.