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E.T. Sen (Retd.) Vs. Edatata Narayanan and ors. - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication;Contempt of Court
CourtDelhi High Court
Decided On
Case NumberCriminal Original Nos. 39 and 40 of 1968
Judge
Reported inAIR1969Delhi201; 1969CriLJ884; 5(1969)DLT348; ILR1969Delhi157
ActsContempt of Courts Act, 1952 - Sections 1, 3 and 4; Constitution of India - Articles 13, 19(1), 19(2), 129, 141, 143, 215, 366(10) and 372; Indian Penal Code (IPC), 1860 - Sections 500, 501 and 502
AppellantE.T. Sen (Retd.)
RespondentEdatata Narayanan and ors.
Appellant Advocate M.C. Chagla and; C.L. Sareen, Advs
Respondent Advocate R.K. Garg, ; S.C. Agarwal, ; A.K. Gupta and ;
Cases ReferredM. Y. Shareff v. The Hon
Excerpt:
contempt of court-power of high court to punish for--no exemption or saving provision in favor of the press--nature of law of contempt indicated--constitution of india, articles 19(1)(a) & 215.; that the law of contempt of court is as precise as it can be in view of its very nature. it depends on the facts and circumstances of each case and the law reports abound with decisions which are legion, conveying a fairly clear idea to anyone, who chooses to read them with requisite care and attention, as to what is the precise scope and effect of the law of contempt of court and, broadly speaking, it is reasonably settled as to when a publisher must pause and ponder whether or nto to transgress the bounds discernible from those decisions. ; that the power of high court to punish for.....inder deo dua, c.j. 1. these two criminal original applications (criminal original nos. 39 and 40 of 1868) by brig. e t. sen (retd.) under section 3 of the contempt of courts act read with article 215 of the constitution, raising as they do common questions, are being disposed of by one order.2. brig. e. t. sen is a retired brigadier of the indian army, having retired in may, 1967 and is at present the resident manager of messrs ceat tyres of india ltd.. new delhi he filed a criminal complaint under sections 500, 501 and 502, indian penal code, against d. p. sinha, the printer and publisher of 'new age', an english newspaper published from new delhi; for having printed and published a pamphlet 'i was a cia agent in india', alleged to have been written by one john d. smith, an american,.....
Judgment:

Inder Deo Dua, C.J.

1. These two criminal original applications (Criminal Original Nos. 39 and 40 of 1868) by Brig. E T. Sen (Retd.) under section 3 of the Contempt of Courts Act read with Article 215 of the Constitution, raising as they do common questions, are being disposed of by one order.

2. Brig. E. T. Sen is a retired Brigadier of the Indian Army, having retired in May, 1967 and is at present the Resident Manager of Messrs Ceat Tyres of India Ltd.. New Delhi He filed a criminal complaint under Sections 500, 501 and 502, Indian Penal Code, against D. P. Sinha, the Printer and Publisher of 'New Age', an English newspaper published from New Delhi; for having printed and published a pamphlet 'I was a Cia agent in India', alleged to have been written by one John D. Smith, an American, who is stated to have defected to Russia, on the averment that the said pamphlet contained serious libelous and defamatory statements against the complainant. That complaint is pending in the Court of Shri P. S. Bhatnagar, Sub-Divisional Magistrate, Delhi The two applications before Us arise out of what happened during the cross-examination of the complainant by the counsel for the accused. Shri E. Narayanan, respondent No. 1 in Crl. O. 39 of 1968, is the Editor and Shri P. Viswanath, respondent No. 2, is the Printer and Publisher and Shri Vidya Rattan, respondent No. 3, is the Correspondent of the 'Patriot', which is a local English Daily Newspaper published from New Delhi. According to the Petitioner, respondents Nos.1 to 3 are siding with D. P. Sinha and doing their best to poison the public opinion against the petitioner. He has referred to the contents of the Issues of the 'Patriot' dated 13-7-1968, 14-7-1968, 19-5-1968. 8-6-1968, 2-7-1968, 21-7 1968, 4-8-1968 and 13-8-1968 in support of the submission and it is averred that from the circumstances narrated in the application, as also from the manner of reporting, it is apparent that there is a persistent one-sided press campaign by the 'Patriot' against the cause of the petitioner with a view to poisoning the mind of the general public and thereby hampering the course of justice. The grounds on which this application has been moved read as under:

1. Because the respondents carried on a parallel enquiry in a matter which is sub judice and published the result of the said enquiry when those very facts had to be proved by the accused. By doing so, the Court and public at large were prejudiced.

2. Because of the publication of the letter alleged to have emanated from one John D. Smith without the same having been proved in the trial Court either in respect of its authorship or its contents.

3. Because the proceedings were in accurate and misleading and there was a display of headlines of scaring and sensational character.

4. Because the publications were calculated to prejudice the public mind and interfere with the due course of justice.

5. Because misrepresentation of the proceedings of the Court scandalised it.

6. Because the respondents asserted the establishment of facts as correct when they were disputed in a pending case and had yet to be proved,

7. Because the reporting in the newspaper is one-sided, against the petitioner and in favor of the accused, and

8. Because these publications have seriously prejudiced the petitioner's cause,

3. Turning now to Cri. O. 40 of 1968 in which Shri D. P. Sinha, respondent No. 1, is the Printer and Publisher of the 'New Age' and Shri Bhupesh Gupta, respondent No. 2, the Editor of the said newspaper, it is averred that these respondents, while reporting the Court's proceeding of the criminal complaint under sections 500, 501 and 502, Indian Penal Code, against Shri D. P. Sinha, have been carrying on a calculated and persisted press campaign through the cofumns of the aforesaid newspaper against the prosecution with a view to poison the mind of the general public so as to hamper a fair trial of the complaint. The composition of the headlines and the nature of display of the reports about the criminal case in question are maliciously designed to impress upon the mind of the public that the prosecution case was a weak one and that the prosecution was nto likely to succeed in proving the guilt of the accused. The respondents have published material which is nto legal evidence in the case and have given such scaring, mischievous and suggestive headlines in block letters that the same are bound to poison the mind of the public, the witnesses for the prosecution and thus to hamper the conduct of a fair and impartial trial. The respondents it is pleaded have gone a step further by publishing the result of an alleged parallel enquiry conducted by the English local daily the 'Patriot'. The tendency of the reporting has been described:

(a) To prejudice the mind of the general public against the petitioner by giving an impression that he is nto likely to succeed in his case.

(b) To deter the witnesses of the petitioner from coming forward to give evidence in his favor,

(c) To scandalise the Court by depriving it of the power of doing that which is the end for which it exists -- namely, to administer justice duly and impartially and with reference safely to the facts judicially brought before it, and

(d) To prejudice the public opinion by misstatement of facts and by suppressing the material facts and by emphasising one-sided version against the petitioner's cause and in favor of the accused. The issue of the 'New Age' dated 21-7-1968 has been relied upon in support of the allegations of contempt of Court. It has also been alleged that while reporting the Court's proceedings of 12-7-1968, in the issue of the 'New Age', full text of the letter marked 'A' was published before this document was proved and before it could be established whether it had actually been written by John D. Smith. According to the petitioner's averment, it is nto even known as to who Mr. Garg is and the genuineness of the letter has still to be established. Publication of a Photostat of a part of this letter and an envelope, according to the petitioner, is designed by the respondents to suggest that the letter was written from Russia by John D. Smith and the envelope was addressed to one P. P. Garg. This publication is by itself pleaded to constitute a gross contempt of Court because a reading thereof is bound to prejudice the mankind at large and hamper the fair trial of the case. Some of the other material contained in the same issue of the 'New Age' has also been relied upon in support of the petition. The following headline in the same issue of the 'New Age' has been relied upon in support of the charge of contempt of Court:

'Cia Man Smith Paid For Brig Sen's Drinks.' The above headline, according to the petitioner, is an attempt to convey that Mr. Smith to whom the complainant referred, was a 'CIA MAN', though there is no evidence on the record that Smith was a Cia Man or that the petitioner had knowledge of his being one. The headline is said to have been designedly given a shape so as to prejudice the mind of the public and the witnesses and thus thwart the course of fair trial. It is added that the following headline displayed in block letters:

'COMPLAINT Made In 1961 To Vijayalakshmi PANDIT'. does nto form part of the Court proceedings and is based on an alleged parallel enquiry made by the 'Patriot' and published in its issue dated 14-7-1968. This headline is stated to be highly misleading and has a tendency to poison the mind of the general public and the petitioner's witnesses and also to otherwise prejudice the course of fair and impartial trial. Connected with this headline is the following material published in the same issue of the 'New Age' on which the petitioner places reliance for his charge:

'A report in the New Delhi Daily Patrito on July 14 says:

'Mr. Smith's letter mentioned that he had presented a letter about the illegal activities of the American intelligence service in India to Mrs. Vijayalakshmi Pandit in January, 1961, when she was India's High Commissioner to Britain and that this complaint contained reference to Brig, (then Colonel) Sen.

'Contacted, Mrs. Vijayalakshmi Pandit confirmed the receipt of such a complaint in London in 1961.'

It is on the basis of this material that it is averred that there was a parallel enquiry on the part of the 'Patriot' and the publication of the result of such an enquiry both by the 'Patriot' and the 'New Age' constitutes a gross contempt of Court.

4. Referring to the issue of the 'New Age' dated 7-7-1968, in which the Courts proceedings of 1-7-1968 were reported, it is averred that the respondents again displayed scaring headlines and mis-statement and suppression of material facts with a view to prejudice the public opinion and poison the same against the petitioner including publication of scandalous and irrelevant questions asked and disallowed by the Court. This grievance includes the headline in block letters:

'E T SEN: Joined Army To 'EARN More MONEY'.

This headline is stated to be entirely out of context and to have been displayed to prejudice and poison the public mind against the petitioner. The grievance extends to the publication of the text of cross-examination, including questions disallowed by the trial Court and this publication is stated to have been inspired by a desire to prejudice the petitioner in the conduct of the prosecution. The relevant portion of the statement of the complainant is reproduced in the application for contempt in the following words:

'I left this job because I felt that Army would suit me best. I also thought that in the Army I will become an officer and earn more money.'

The following two questions:

'1. Are you aware that in 1940 the British Army was being used to suppress the Indian National movement? Were your aware that Indians hired by the British rulers in the Indian Army as also the British officers of the Indian Army were used to suppress the national movement of the country?

2. Did you or did you nto have any qualm of conscience that you were likely to be used against the national movement while in the Indian Army?' stated to have been overruled by the Court were published in the 'New Age' dated 7-7-1968 and, according to the petitioner's case, reading of these questions by the general public is bound to leave an impression which is liable to do incalculable harm in poisoning their mind against the petitioner-complainant. The petitioner has attached with his application a copy of his statement in examination-in-chief and cross-examination recorded in the presence of the accused till the date of his filing the present applications in this Court, to support his charge. The publications in the issues of the 'New Age' dated 21-7-1968 and 7-7-1968, it is averred, amount generally to one-sided special pleading on the part of the respondents in favor of respondent No. 1 and against the interests of the petitioner-complainant. The manner of the reporting is also stated to be calculated to poison the mind of the general public and thereby to harm the course of justice.

5. The defense of the respondents may now be seen. In Crl. O. 39 of 1968, respondent No. 1, Shri Edatata Narayanan, Editor of the 'Patriot', has in his affidavit dated 21-9-1968 expressed unqualified regrets for any contempt of Court in respect of his acts as Editor of the 'Patriot' brought to the notice of this Court. While owning this responsibility he has also taken, without reservations, full responsibility for whatever has appeared in the 'Patriot' and has added that consistent with the established traditions in the field of journalism. Editors do nto shift responsibility on the correspondents for the material published in their papers and it is suggested that it would have been more appropriate if the correspondent of the 'Patriot' had nto been imp leaded in these proceedings. This suggestion is clearly misconceived and I must point out that if contempt of Court is committed by a person, then merely because someone else takes the responsibility for the contempt committed by the former, it is no ground in law to absolve him or to decline to take notice of the former's guilt. The suggestion made in this affidavit is, in my view, based on a complete misunderstanding and misconception of the law of contempt of Court. This respondent has, in the last paragraph, adopted the averments in the affidavit of Shri Vidya Rattan, respondent No. 3, the correspondent for whose action he has taken the responsibility on himself.

6. Respondent No. 3 has of course begun with the following words in paragraph 3 of his affidavit:

'That I have every respect for Courts of justice and I express unqualified regrets for any contempt of Court in my acts brought before this Court.' But paragraph 4 and the succeeding paragraphs squeeze out the lifeblood of this seeming unqualified apology. Paragraph 4 deserves to be reproduced in order to understand whether the unqualified apology is the outpouring of a penitent heart moved by a genuine feeling of remorse or it is meant to serve as a plea to escape punishment after contesting on the merits the charge of the commission of contempt of Court and failing in the attempt:

'4. That I also say that I had no intention to commit contempt of the Court of Shri P. S. Bhatnagar, S. D. M., Paharganj, Delhi, in publishing the reports referred to in the petition. I bona fide reported the proceedings of the Court and there was nothing to suggest to me that any part of my report would con- stitute contempt of Court. I submit with respect that no part of my report amounts to contempt of court. I leave it to the Hon'ble Court to decide whether I have acted within the exercise of my rights to report proceedings of Court held in public available to me and in the discharge of my duty to the readers.' Then follow about 10 pages dealing with each allegation in the application for contempt of Court, and indeed it is also pleaded that the petition for contempt of Court has been filed with the object of putting pressure upon the respondents to refrain from giving due publicity to the trial of the petitioner's complaint against Shri D. P. Sinha. It is added that the reports of the Court proceedings (sic) in other newspapers including 'Current' and 'National Herald'.

7. Respondent No. 2 Shri P. Viswanath, Printer and Publisher of the 'Patriot', has in his affidavit adopted the averments in the counter-affidavit of Shri Vidya Rattan and has said nothing else on his own behalf separately. It is unnecessary to refer in detail to the rejoinder by Brig. E. T. Sen dated 28-9-1968. He has of course laid emphasis on the submission that unqualified regrets are nto genuine as the plea in defense amounts to a 'rolled-up plea of justification and unqualified regrets' which is nto recognised as effective apology in the eye of law.

8. In Crl. O. 40 of 1968, the affidavit, without date but attested on 2-9-1968, filed on behalf of Shri Bhupesh Gupta, Editor of the 'New Age', respondent No. 2, merely purports to adopt the averments made in the counter-affidavit of Shri D. P. Sinha, respondent No. 1, the Printer and Publisher of the 'New Age'. The affidavit of Shri D. P. Sinha, which is also undated, but is sworn on 2-9-1968, begins with paragraphs 3 and 4 which are on lines similar to paragraphs 3 and 4 of the affidavit of Shri Vidya Rattan, respondent No. 3 in Crl. O. 39 of 1968. Paragraph 22 of this counter-affidavit is also similar to paragraph 20 of Shri Vidya Rattan's affidavit in the connected case. In this counter-affidavit, also an attempt has been made to fully justify the publication of the impugned material.

9. At the bar, on behalf of the respondents, a very serious attempt has been made by reference to some provisions of the Constitution to make out a case of freedom of press which would override the law of contempt which has been described to be indefinite and unprecise. I must confess that it was nto possible to find any clear cut argument which was sought to be developed, and indeed, at one stage. Shri R. K, Garg went to the length of submitting that the public had a right to know as to what was happening in all the proceedings in Courts of law and justice in this realm, and a newspaper which performs Its duty of making available to the public verbatim proceedings of the Court, cannto be held guilty of contempt of Court irrespective of the tendency as alleged by the petitioner. The constitutional challenge as developed by Shri R. K. Garg was nto easy to appreciate, though considerable time was taken by the learned counsel on this aspect.

10. Article 19 of the Constitution, on which initially an attempt was made to found the defense by the respondents,: guarantees protection to all citizens against infringement of their right of freedom of speech and expression, but this protection excludes the operation of any existing law and is nto intended to prevent the State from making any law imposing reasonable restrictions on the exercise of this right, inter alia, in relation to contempt of Court. The suggestion, thereforee, contained in the lengthy and elaborate arguments addressed at the bar that freedom of speech and expression, and particularly freedom of the press in India, is designed by the Constitution to override law of contempt of Court, is unacceptable. Article 215 of the Constitution expressly speaks of the power of High Court as a Court of record to punish for contempt of itself. Similar power is vested in the Supreme Court by virtue of Article 129. I have considered it appropriate to refer to Article 129 because arguments against the power of the High Courts to punish for their contempt would, on the arguments addressed on this aspect, be equally applicable to the Supreme Court's power to punish for its contempt. Entry No. 77 in List I (Union List) of Schedule Vii of the Constitution, includes the power of the Parliament to make laws on the subject. Inter alia, of contempt of the Supreme Court and Entry No. 14 in List Iii (Concurrent List) of this Schedule empowers both the Parliament and the State Legislature to make laws on contempt of Court excluding contempt of the Supreme Court. Faint attempt was made on behalf of the respondents to address arguments on the basis of Articles 13, 366(10) and 372 of the Constitution for the purpose of founding a challenge to the law of contempt of Court as developed by the decisions of Courts being vocative of Article 19 of the Constitution, but it is unnecessary to deal with this argument in face of the express language of Article 19(2), which preserves the law relating to contempt of Court. Legislative competence to enact law of contempt of Court is beyond question and there is nothing unconstitutional in the judicial determination by the Courts as to the meaning of the expression 'Contempt of Court'. The argument that this expression being undefined by statute is nto open to construction by the High Courts and by the Supreme Court, and that it is too vague and indefinite to be enforceable, though ingenious, is unacceptable.

11. Law declared by the Supreme Court is binding on all Courts within the territory of India and if the law relating to contempt of Court has been recognised by the Supreme Court, then its constitutionality must be upheld. As Shri Garg has addressed lengthy arguments with great seriousness on the constitutional challenge, I consider it proper to turn to the decisions of the Supreme Court.

In re Hira Lal Dixit : [1955]1SCR677 a Bench of five Judges of the Supreme Court dealt with the case of contempt of the Supreme Court. The circumstances which led to contempt proceedings are, that on 14-9-1954, two appeals being Saghir Ahmad v. State of U. P. and Mirza Hasan Agha v. State of U. P. : [1955]1SCR707 appeared for hearing and final disposal on the daily board of the Supreme Court. A number of writ petitions were also fixed for hearing. The two appeals were called for hearing on that day and remained part-heard. The hearing continued on the 15th and 16th September and concluded on the 17th, when the Court took time for considering Its decision, A large number of persons, presumably the petitioners in the writ petitions or otherwise Interested therein, attended the Court on all those dates because the result of the decision of the appeals was also to conclude the writ petitions. On 15-9-1954, a leaflet printed in Hindi language and characters, consisting of 18 pages, entitled 'Hamara Vahan Vibhag' meaning 'Our Transport Department', purporting to be written by Hira Lal Dixit and containing a foreword purporting to be written by Sri Krishna Dutt Paliwala with a block photograph of Hira Lal Dixit on the front page, was distributed in the Court promises. This leaflet contained a graphic account of the harassment and indignity said to have been meted out to the writer by the State officers and the then State Minister of Transport in connection with the cancellation and eventual restoration of the license in respect of a passenger bus. The second paragraph on page 15 of that leaflet contained a passage reproduced in the report which was the subject-matter of contempt proceedings, but it is unnecessary for our purposes to reproduce it here. After referring to Brahma Prakash Sharma v. State of Uttar Pradesh, : 1954CriLJ238 also a decision by five Judges, which dealt with the case of scandalising the Court, it was observed as under:

'The present case does nto fall within that category, for here there has been no scandalising of the Court itself. The question here is whether the offending passage is of such character and import or made in such circumstances as would tend to in under or obstruct or interfere with the due course of administration of justice by the Court To begin with, the leaflet was written by a person who was in myself the petitioner in one of the writ petitions which were on the cause list for hearing. The actual timing of the publication of the leaflet is significant. It was circulated at a time when the appeal and the writ petitions including that of the respondent Hira Lal Dixit, in myself were posted on the cause list and the appeals, on the decision of which depended the fate of those numerous petitions, were being actually heard. The place of publication was also nto without significance. It was distributed in the Court premises where a very large number of licensees had foregathered. The fact of distribution of the leaflet in the Court premises was denied in the affidavit of this respondent but when a suggestion was made that evidence be recorded on this point the learned counsel appearing for in m did nto press for it and accepted the position that the leaflet was in fact distributed in the Court premises. In the circumstances, the only other question that remains is as to what was the meaning and purpose of the offending passage in the leaflet'

The Court then went into the contents of the passage and repelled the argument that it was innocuous and only expressed a laudatory sentiment towards the Court and that such flattery could nut have the slightest effect on the minds of the Judges of the Supreme Court. The Court negatived the contention that flattery was the sofa or even the main object with which this passage was written or with which it was published at the time when the hearing of the appeal was in progress. The Court approved the decision in Brahma Prakash Sharma's case, : 1954CriLJ238 and observed that it is nto necessary that there should in fact be an actual interference with the course of administration of justice and that it is enough if the offending publication is likely or if it tends in any way to interfere with the proper administration of law. According to this judgment, the summary Jurisdiction exercised by superior Courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the Court and thereby affording protection to public Interest in the purity of the administration of justice.

In Pratap Singh v. Gurbaksh Singh, : AIR1962SC1172 , the Court approvingly reproduced the following definition of 'Contempt of Court' from Oswald' Contempt of Court, 3rd Edition, page 6:

'To speak generally, contempt of Court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties litigant or their witnesses during the litigation.'

In this decision, it was again reiterated that the question in such cases is nto whether the action in fact interfered but whether it had a tendency to interfere with the due course of justice.

In 1964, In re, Under Art. 143, Constitution of India, : AIR1965SC745 , as a result of the controversy between the Uttar Pradesh Legislative Assembly and the Allahabad High Court, the President of India made a reference to the Supreme Court for its opinion on the following five questions:

1. Whether, on the facts and circumstances of the case, it was competent for the Lucknow Bench of the High Court of Uttar Pradesh, consisting of the Hon'ble Mr. Justice N. U. Beg and the Hon'ble Mr. Justice G. D, Sahgal, to entertain and deal with the petition of Mr. Keshav Singh challenging the legality of the sentence of imprisonment imposed upon in m by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Mr. Keshav Singh on bail pending the disposal of his said petition;

(2) Whether, on the facts and circumstances of the case, Mr. Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid, Mr. B. Sofomon, Advocate, by presenting the said petition and the said two Hon'ble Judges by entertaining and dealing with the said petition and ordering the release of Shri Keshav Singh on bail pending disposal of the said petition committed contempt of the Legislative Assembly of Uttar Pradesh;

(3) Whether, on the facts and circumstances of the case, it was competent for the Legislative Assembly of Uttar Pradesh to direct the production of the said two Hon'ble Judges and Mr. B. Sofomon, Advocate, before it in custody or to call for their Explanationn for its contempt;

(4) Whether, on the facts and circumstances of the case, it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of the said two Hon'ble Judges and Mr. B, Solomon, Advocate, and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other respondents to the said petitions from implementing the aforesaid direction of the said Legislative Assembly; and

(5) Whether a Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt or for 'infringement of its privileges and immunities or who passes any order on such petition commits contempt of the said legislature and whether the said Legislature is competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities.'

A Bench of seven Judges of the Supreme Court heard elaborate arguments on this reference and had the assistance of a large number of eminent lawyers drawn from almost all the States in India. The question raised related to the powers both of the Legislatures and of the High Courts to punish for their contempt. The illuminating judgment in this case exhaustively reviews the case law both English and Indian on the subject and what emerges from this judgment is that the power of the High Courts and of the Legislatures to punish for their contempt was nto questioned by anyone.

12. In Surendra Mohanty v. State of Orissa, Criminal Appeal No. 107 of 1956 decided on 23-1-1961 (SC) on appeal by the contemner from his conviction and sentence ordered by the High Court of Orissa for contempt of Court, a Bench of five Judges allowed the appeal on the merits. It, however, observed that the Contempt of Courts Act confers on the High Courts the power to punish for the contempt of inferior Courts and this power being wide and described as arbitrary, deserves to be exercised with circumspection and restraint and only in cases where it is necessary for maintaining the course of justice pure and unaffected. In Thakur Jugal Kishore Sinha v. The Sitamarhi Central Co-operative Bank Ltd., Criminal Appeal No. 18 of 1965 D/- 13-3-1967 : : 1967CriLJ1380a , the appellant had been convicted by the Patna High Court for contempt of the Court of the Assistant Registrar, Cooperative Societies. On appeal, the main question raised centered round the argument whether the Assistant Registrar was functioning as a Court judicially subordinate to the High Court and this was decided against the appellant. The Court, however, also observed as follows:

'Generally speaking 'any conduct that tends to bring the authority and administration of the law into disrespect or disregard or to interfere with or preju- dice party litigants or their witnesses during their litigation amounts to contempt of court: see Oswald on Contempt page 6. In order that courts should be able to dispense justice without fear or favor, affection or ill-will, it is essential that litigants who resort to courts should so conduct themselves as nto to bring the authority and the administration of law into disrespect or disregard. Neither should they exceed the limits of fair criticism or use language casting aspersions on the probity of the courts or questioning the bona fides of their judgments. This applies equally to all Judges and all litigants irrespective of the status of the Judge i.e. whether he occupies one of the in guest judicial offices in the land or is the presiding officer of a court of very limited jurisdiction. It is in the Interests of justice and administration of law that litigants should show the same respect to a court, no matter whether it is in guest in the land or whether it is one of inferior jurisdiction only. The Contempt of Courts Act, 1952 does nto define 'contempt' or 'courts' and in the interest of justice any conduct of the kind mentioned above towards any person who can be called a 'court' should be amenable to the jurisdiction under the Contempt of Courts Act, 1952.'

In Tukaram G. Gaokar v. R. N. Shukla, : 1968CriLJ1234 , again power to punish for contempt is recognised. Since the conclusion of the arguments in the case in the hand, a Bench of three Judges of the Supreme Court has on 8-11-1968 given a judgment in Re. P. C. Sen, Criminal Appeal No. 119 of 1966 (SC) in which Shah, J. speaking for the Court, has dealt with the matter very exhaustively. Thus observed the learned Judge:

'The law relating to contempt of Court is well settled. Any act done or writing published which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the Court, is a contempt of Court : R. v. Gray (1900) 2 Q. B. D. 36 at p. 40. Contempt by speech or writing may be by scandalising the Court Itself, or by abusing parties to actions, or by prejudicing mankind in favor or against a party before the cause is heard. It is Incumbent upon Courts of Justice to preserve their proceedings from being misrepresented, for prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard, has pernicious consequences. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving reflection on parties to a proceeding amount to contempt. To make a speech tending to influence the result of a pending trial, whether civil or cri- minal, is a grave contempt. Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources. The question in all cases of comment on pending proceedings is nto whether the publication does interfere, but whether it tends to interfere with the due course of justice. The question is nto so much of the intention of the contemner as whether it is calculated to interfere with the administration of justice.' The Court then reproduced the following passage from Debi Prasad Sharma v. King-Emperor 70 Ind App 216 at p. 224: '. . the test applied by the .... board which heard the reference was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of justice and the due administration of the law.'

The submission that intention of the contemner is the decisive test was negatived and reliance in support of the argument of intention on Saibal Kumar Gupta v. B. K. Sen, : 1961CriLJ749 was held to be unhelpful. The observations of Imam, J. in that judgment were explained and it was held that those observations do nto imply that in the absence of intention to interfere with the course of justice, the conduct which tends to or is calculated to interfere with the administration of justice cannto be punished as contempt. The decision in Arthur Reginald Perrers v. King (1951) A. C. 482, was also held nto to support this submission. It may be pointed out that in the case of In re: P. C. Sen, Cri. App. No. 119 of 1966 D/-8-11-1968 (SC) the Chief Minister of Bengal had broadcast a speech which touched the merits of a cause pending in and awaiting adjudication by the Calcutta High Court. In the course of the judgment, the position in regard to the legal proceedings without the aid of a jury was clarified in these words:

'It is difficult to accept the contention that comments which are likely to interfere with the due administration of justice by holding up a party to a proceeding to ridicule or to create an atmosphere against in m in the public mind against his cause when the trial is held without the aid of a jury do nto amount to contempt. If a party to the proceeding is likely to be deterred from prosecuting his proceeding or people who have similar cause are likely to be dissuaded from initiating proceedings, contempt of Court would be committed. It matters little whether the trial is with the aid of the jury or without the aid of jury.'

While commenting on some English decisions reported as The William Thomas Shipping Co., In re; H. W. Dhillon and Sons Ltd. v. The Company, In re, Sir Robert Thomas (1930) 2 Ch. 368 and Regina v. Duffey, Ex Parte Nash (1960) 2 Q. B. D. 188, Shah, J, proceeded to state:

'But our Courts are Courts, which administer both law and equity. Assuming that a Judge holding a trial is nto likely to be influenced by comment in newspapers or by other media of mass communication may be ruled out--though it would be difficult to be dogmatic on that matter also--the Court is entitled and is indeed bound to consider, especially in our country where personal conduct is largely influenced by opinion of the members of the caste, community, occupation or profession to which he belongs, whether comments holding up a party to public ridicule, or which prejudices society against in m may nto dissuade in m from prosecuting his proceeding or compel in m to compromise it on terms unfavorable to himself. That is a real danger which must be guarded against: the Court is nto in initiating proceedings for contempt for abusing a party to a litigation, merely concerned with the impression on the Judge's mind or even on the minds of witnesses for a litigant, it is also concerned with the probable effect on the conduct of the litigant and persons having similar claims.'

After suggesting that a Judge while hearing an appeal may be influenced unconsciously by what he reads in newspapers, the learned Judge added;

'No distinction is, in our judgment warranted that comment on a pending case or abuse of a party may amount to contempt when the case is triable with the aid of a jury, and nto when it is triable by a Judge or Judges.'

The Court also repeated what is now almost axiomatic that ordinarily a Court would nto initiate proceedings for commitment for contempt where there is a mere technical contempt. The same Bench of the Supreme Court has still more recently in Perspective Publications (P) Ltd. v. State of Maharashtra, Criminal Appeal No. 159 of 1966 (SC), affirmed the order of the Bombay High Court convicting the appellants there of contempt of Mr. Justice Tarkunde of that High Court in his judicial capacity and of the Court. The charge of contempt was based on the publication on 24-4-1965 of an article under the caption 'StorY Of A Loan and Blitz Tha-kersey Libel Case' in the weekly periodical called 'Mainsteam'. That article was stated to have been contributed by a person under the name of 'Scribbler'. The Court again reviewed the case-law. The American and Australian decisions were held to be hardly of much assistance in India because the decisions of the various High Courts and of the Supreme Court have crystallized the principles applicable here by mostly adopting the principles followed by English Courts. In this decision, it is again pointed out, by making a reference to Brahma Prakash's case : 1954CriLJ238 (supra), which may by now be considered to be incontrovertible, that it is nto necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of offending statements and it is enough if it is likely or it tends in any way to interfere with the proper administration of justice..

13. This Court has also, in several full Bench decisions, laid down the law in regard to contempt of Court with sufficient clarity. In Surat Singh v. Des Raj Chowdhry 1968 DLt 1 , the power of this Court to punish for contempt has been stated to be inherent in its character as a Court of Record and the recognition of this power under Article 215 of the Constitution has been noticed. After referring to Article 19(1)(a) and Article 19(2) of the Constitution, it has been pointed out that neither the Constitution nor any other law contemplates any exemption or a saving provision in favor of the press or the profession of journalism as such, with the result that the freedom of speech and expression as guaranteed by Article 19(1)(a) has been held to be available to all citizens in an equal degree without conferring any greater privilege on the press or the journalists. This, however, does nto by any means affect the high esteem in which free civilized democratic society like ours holds independent and public-spirited journalists to express their views fearlessly but rationally in sober and restrained language. It has further been pointed out in this decision that though contempt of Court has nto been defined either in the Constitution or in any other statute, its concept is now very well settled. 'Contempt by speech or writing', it has been pointed put: 'may be by scandalising the Court by itself or by abusing parties to actions, or by prejudicing mankind in favor of on against a party before the cause is heard because in the last-mentioned instance, injurious misrepresentation concerning litigating parties may induce them to discontinue the action or to compromise or may deter other persons, with good causes or actions, from approaching the Court. And then, it may also tend to influence in a subtle or subconscious manner the judicial thinking on the part of the Court.'

In Re: Court of Its Own Motion v. K. S. Sethi, Cr. O. 49 of 1967, decided on 23-11-1967 :AIR 1968 Delhi 248, a Full Bench of this Court observed that Article 215 of the Constitution Rives every High Court the right and power to punish a contempt of itself. Contempt, according to this decision, may consist of conduct which prejudices the parties or the witnesses during litigation or it may consist of conduct which brings the authority and administration of law in disrespect or disregard or it may tend to impede, embarrass or obstruct the Court in discharge of its duties. This decision was unsuccessfully assailed in the Supreme Court. As recently as November, 1968, a Full Bench of this Court convicted Shri R. K. Dalmia for contempt of Court (Cr. O. 55 of 1968), though that was undoubtedly a clear-cut case and the counsel did nto raise any objection similar to those raised before us. I need nto refer to the innumerable decisions of other High Courts except to a recent full Bench decision of the Punjab and Haryana High Court in S. Sher Singh v. Raghu Pati Kapur in which all conceivable grounds were urged by the alleged contemner in his challenge to the law providing for punishing for the offence of contempt of Court. It has been observed in this decision that hiso far as the offence of contempt of Court is concerned, the essence of the matter is the tendency to interfere with the due course of justice. It is unnecessary to refer in detail to the exhaustive judgment prepared by Mehar Singh, C. J.

14. The submission that the public has a right to be apprised of all that happens in the open Court and that the respondents having merely answered to the rightful demand of the public by publishing the material in question, contempt of Court cannot, as a matter of law, he held to be committed, has merely to be stated to be rejected. No such alleged right of the public and no such alleged obligation on the part of the respondents can override the law of contempt of Court, without which effective and pure administration of justice seems to us to be inconceivable in a set-up like ours.

15. Before turning to the objectionable publications, I may appropriately advert to the argument on which Shri R. K. Garg addressed this Court in defense for more days than one. According to in m, the law of contempt of Court is unprecise and undefined and nto only is his client unaware, even his lawyers feel handicapped and they were unable to advise and guide in m as to how far he could go in publishing the impugned material to question. On this very ground is founded the argument that his client cannto offer an unqualified apology and that all that he can say is that if the Court finds that his client's conduct amounts to contempt of Court, then he is willing to tender an unqualified apology , I am wholly unable to sustain this submission. The law of contempt of Court is as precise as it can be in view of its very nature. It depends on the facts and circumstances of each case and the law reports abound with decisions which are legion, conveying a fairly clear idea to anyone, who chooses to read them with requisite care and attention, as to what is the precise scope and effect of the law of contempt of Court and, broadly speaking, it is reasonably settled as to when a publisher must pause and ponder whether or nto to transgress the bounds discernible from those decisions. In regard to the apology also, it is settled by a host of decisions by the various High Courts and quite a few by the Supreme Court that an apology and a justification ill go together. We are nto unaware of some observations in the Supreme Court decision in M. Y. Shareff v. The Hon'ble Judges of the High Court of Nagpur, : 1955CriLJ133 , but they must be confined to the peculiar facts and circumstances of that case, and on the authority of that decision, it is nto possible to hold that in a case like the present, an apology , operative after a finding by the Court that the impugned publication amounts to contempt of Court, deserves to be accepted. Apology, it is settled beyond dispute, has to be offered clearly at the earliest opportunity indicative of remorse and contrition which is the essence of the purging of a contempt and it should nto be offered in the hope and with the object of avoiding punishment.

16. Coming now to the merits of Cr. O. 39 of 1968, the effect of the headline in bold type 'CIA AGENT'S Letter Admitted In COURT' and the second headline in much border type 'SEN Says Smith Often Paid For His DRINKS' published on the front page of the issue of the 'Patriot' dated 13-7-1968, seems to me to tend to prejudice the public mind against the petitioner. It is nto a fair and faithful report of the proceedings of the Court and the selection of the bolder type for the specially chosen subject-matter in question seems to betray an oblique purpose or motive, In the reply, no serious attempt has been made to show that this report is an accurate reproduction of the statement made in Court and during the arguments, it has been sought to be explained by suggesting that the trend of the Court statement justifies the impression formed by the respondents-journalists and this impression is fairly reported in the impugned news item. Similar is the Explanationn for using the bold headlines I am far from satisfied with this Explanationn. Holding this nto to be a fair and faithful report of the Court proceedings and also that it tends to convey to the reader an impression prejudicial to the complainant, this publication clearly tends to prejudice mankind against the complainant and it thus falls within the mischief of contempt of Court.

17. In regard to the publication of the letter alleged to have been written by one John Smith and addressed to one P. G. Garg, we feel, after going through the record, that the reporter and the publisher might well have thought that this letter had been duly admitted in evidence though in fact it seems to me to have been only marked for identification and nto admitted in evidence or proved. In this respect, I am inclined to give to the respondents benefit of doubt, Publication of the full text of the letter would also seem to me on the facts of this case, to be indiscreet, but here again, I am inclined to give to the respondents benefit of doubt. It would certainly have been more fair and proper on the part of the respondents nto to have published it in extenso when it was nto actually read out in Court. Being conscious of the principle that action for contempt of Court should nto be taken too lightly, but with caution and deliberation, I consider it proper to ignore the publication of the full text of the letter on the peculiar facts and circumstances of this case.

18. In regard to the publication on the front page of the issue of the 'Patriot' dated 14-7-1968, according to which Mr. Smith's letter mentioned that he had presented a letter about the legal activities of the American intelligence service in India to Mrs. Vijaylakshmi Pandit in January, 1961, when she was Indian High Commissioner to Britain and that this complaint contained references to Brig, (then Cofonel) Sen and the report by the Staff Reporter of the newspaper suggesting that he had contacted Mrs, Vijaylakshmi Pandit who confirmed the receipt of such a complaint in London in 1961, we feel that this publication has also a tendency to prejudice mankind against the complainant by reference to something which the Staff Reporter did in connection with a matter which was sub judice in Court in the proceedings initiated by the complainant-petitioner. The subject-matter of this publication read as a whole cannto but tend to create an impression prejudicial to the complainant.

19. I am disinclined to hold that the other publications referred to in Crl. O. 39 of 1968 by themselves amount to contempt of Court, and indeed they were nto seriously pressed by Shri Chagla to his argument. He only referred to them in passing to contrast the sketchy nature of the report in the other issues of the 'Patriot'. It was, however, suggested by the learned counsel that the general manner and method of publishing the Court proceedings was far from fair, faithful and accurate.

20. This takes us to Crl. O. 40 of 1968. The petitioner's learned counsel has at the outset drawn our attention to the defect in the affidavit in reply at p. 52 of the record filed by Shri Bhupesh Gupta, respondent No. 2, that in the verification clause, he has nto stated that paragraphs 1 to 3 of the affidavit are true to his personal knowledge and belief. The word 'personal', says the counsel, is missing in the affidavit filed in Court. This, according to the respondents' learned counsel, seems to be a typing mistake. In my view, this is a lapse both on the part of the Oath Commissioner who attested this affidavit and on the part of the deponent who swore this affidavit and filed it in Court without checking up that there was no such typing mistake. It does give us an impression that the affidavit was nto read either by the Oath Commissioner or by the deponent with the care it deserved. I need, however, say nothing more in this connection on the present occasion.

21. At page 7 of the 'New Age' dated 21-7-1968, is published the full text of the letter alleged to have been written by John Smith to one Mr. P. B. Garg. The offending publication with the headline 'COMPLAINT Made In 1961 To Vijayalakshmi PANDIT' in very bold type begins as under:

'Following is the text of the letter of John Smith introduced in evidence by the defense counsel P. B. Garg.'

Then the whole letter is reproduced which purports to be addressed to one Mr. P. B. Garg. I have given the benefit of doubt to the respondents In Crl. O. 39 of 1968 for forming an impression that this letter was admitted into evidence, though from the record, it may be inferred that after the Court had corrected the proceedings of 12-7-1968 and clarified that the letter in question was only placed on the record, those who wanted to publish the Court proceedings on 21-7-1968 should have taken proper care to inform themselves of the correction incorporated by the Presiding Officer when signing the typed proceedings. But here again, I am inclined to give the benefit of doubt to the respondents in this case, though I cannto help observing that publication of the full text of this letter was somewhat indiscreet on their part. The bold type about 'COMPLAINT Made In 1961 To Vijayalakshmi PANDIT' and a reproduction of the report from the 'Daily Patriot' of 14-7-1968, in my opinion does constitute contempt of Court inasmuch as it tends to prejudice public mind against the complainant by making a reference to some sort of investigation or enquiry which the Reporter of the 'Patriot' is suggested to have carried out in connection with a matter requiring adjudication by the Court in a pending proceeding on the evidence to be recorded. The publication of the photostat of John Smith's letter to Garg and of the envelope showing address, also seems to me to be a transgression of the limits of a fair and faithful reporting of Court proceedings. The question whether the letter was actually written by John Smith to P. B. Garg and who this gentleman is was a matter which had yet to be determined by the Court on legal evidence and its publication on 21-7-1968 does nto seem to me to fall within the doctrine of fair and faithful reproduction of the Court proceedings held on 12-7-1968. In the same issue of the 'New Age at page 6, the headlines in very bold type 'CIA Man Smith Paid For BRIG. SEN'S DRINKS' seems to me to be an unfaithful and unfair reproduction of the Court proceedings. This conveys an impression of interpreting the statement and nto of faithfully and accurately reproducing it. I have accordingly little hesitation in holding this publication to amount to contempt of Court.

22. In the issue of the 'New Age', dated 7-7-1968, at page 12, occur the following headlines in very bold type:

'E. T, Sen; Joined Army to earn more money.'

23. This also seems to me to tend to convey a somewhat erroneous impression about Sen's statement in Court, read as a whole, and is accordingly nto a fair and faithful reproduction of the Court proceedings. This publication thus also seems to me to fall within the mischief of contempt of Court as discussed above. Neither the press reporter nor the publisher of a newspaper can, in my view, claim an indefeasible right to put in a own gloss on the statements in Court by selecting stray passages out of context which may have a tendency to convey to the reader to the prejudice of a party to the proceedings, a sense different from what would appear when the statement is read in its own context. To reproduce stray misleading passages in bold headlines in order to attract the attention of casual readers may serve as an aggravating factor. Similarly, while reproducing the Court proceedings, no words may be added, omitted or substituted if their effect is to be more prejudicial to a party litigant than the actual proceedings. Any deviation in the report from the correct proceedings actually recorded, must, if it offends the law of contempt of Court, render the alleged contemner liable to be proceeded against.

24. On a consideration of all the facts and circumstances of the case and as a result of the foregoing discussion, I am constrained to hold the respondents in both the cases to be guilty of contempt of Court, but as their plea is that they were ignorant of the precise implication of law of contempt and their legal advisers were also unable to guide them properly, I feel that a severe warning would on this occasion serve the ends of justice. In taking this lenient view in this case, the stress laid on Shri Garg's argument that the alleged contemners' legal advisers were unable to understand the correct legal position and were thus unable to give proper advice, has, to some extent, weighed with this Court. It must, however, be made clear that in future, this Court would take a more serious view of such publications and the ignorance of the law or inability of the legal advisers to properly advise their clients, would nto be considered a mitigating circumstance. It may be pointed out that on behalf of the petitioner, it was argued that the 'New Age' is the official paper of the Communist Party and the 'Patriot' is other-wise^ a Communist paper. The impugned publications were accordingly designed by the respondents in both the cases to hamper the fair trial of the case by poisoning the public mind against the plaintiff. It is nto disputed by the respondent that the 'New Age' is the Communist Party's official organ, but the 'Patriot' is stated to be an independent paper with its own views and policy. I have nto taken into account the allegation the 'Patriot' being a Communist paper because this Court, while considering the question of contempt of Court, is wholly unconcerned with the political views of alleged contemners. The charge of contempt of Court in this case is to be considered on the merits unmindful of the alleged contemners' political views. I have, however, taken notice of the fact that the printer and publisher of the 'New Age' is a party to the proceedings in a criminal Court in regard to which the contempt of Court is alleged. This seems to me to be a factor of considerable relevance.

25. Shri Chagla had, in the course of his arguments, referred us to the issue of the 'New Age' dated 28-7-1968, where at Page 6, a photograph of Shri R. K. Garg, the defense counsel in the case, was published along with the proceedings of the case and it was suggested that it was nto a fair and impartial report of the proceedings but was meant to give publicity to the counsel. In my opinion, this cannto be contempt of Court and that is the only question with which I am concerned in these proceedings.

26. The petitioner is entitled to his costs which I fix at Rs. 250/- in each case.

S.K. Kapur, J.

27. I entirely agree.

Jagjit Sing, J.

28. I entirely agree.

29. Contemner warned.


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