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Rev. Father Sebastian Onamkulam Vs. K. Karunakaran and anr. - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtKerala High Court
Decided On
Case NumberO.P. No. 3502 of 1966
Judge
Reported inAIR1967Ker177; 1967CriLJ1147
ActsContempt of Courts Act, 1952 - Sections 1 and 4
AppellantRev. Father Sebastian Onamkulam
RespondentK. Karunakaran and anr.
Appellant Advocate K.S. Sebastian, Adv.
Respondent Advocate N. Raghava Kurup and; E. Subramany, Advs.
Cases ReferredRao Harnarain Singh Sheoji Singh v. Gurnard Ram
Excerpt:
.....1 and 4 of contempt of courts act, 1952 - respondent published certain photographs alongwith article calculated to fasten guilt on petitioner - petitioner brought suit for contempt of court - respondent tendering sincere unconditional apology for publication - proceedings for contempt are initiated in court for purpose of protecting court itself and party concerned in judicial proceedings - to use it for any other purpose will constitute abuse of process of court - machinery of court cannot be set in motion for purpose of taking proceedings in contempt to satisfy one's own feeling of grudge and malice - tendering apology by respondents is unconditional and voluntary and being conscious of wrong done by them - court accepted apology tendered by respondents. - - the test is..........committed the crime.it is alleged that certain photographs were published along with the said article calculated to fasten the guilt on rev. fr. benedict onakulam and to prejudice the fair trial of the case. exhibit p-l is alleged to contain certain references to the magistrate of pathanamthitta casting reflections on him and alleging that he is trying to help the accused. the article is said to have complimented the police for the steps that they have so far taken against the accused and this is said to be an unfair attempt on the part of the respondents in establishing the guilt of the accused even before the very framing of the charges and the commencement of the trial. the memorandum of charges filed under rule 4 (b) of the rules dated 2-7-1965 framed by the high court to.....
Judgment:
ORDER

1. The petitioner in the Original Petition applies under Sections 3 and 4 of the Contempt of Courts Act 32 of 1952 for the committal of the first respondent Sri Kambissery Karvmakaran, Chief Editor, 'Janayugam' daily newspaper, Qnilon, and second respondent Sri M. Balakrishnan, Printer and Publisher, Janayugam Publication Ltd., Janayugam Press, Quilon, for alleged contempt of court. The petitioner in the original petition is the brother of Rev. Fr. Benedict Onakulam Athirampuzha who on the date of the filing of the original petition was an accused in Crime No. 88 of 1966 of the Ranni Police Station pending enquiry before the Sub Magistrate's Court at Pathanamthitta. The charges against respondents 1 and 2 are that they published in the issue of 'Janayugam' dated 11-8-1966 an article marked Ext. P-l under the following caption: ..... and that the entire article would give the impression to the readers that Rev. Fr. Benedict Onakulam committed the crime.

It is alleged that certain photographs were published along with the said article calculated to fasten the guilt on Rev. Fr. Benedict Onakulam and to prejudice the fair trial of the case. Exhibit P-l is alleged to contain certain references to the Magistrate of Pathanamthitta casting reflections on him and alleging that he is trying to help the accused. The article is said to have complimented the police for the steps that they have so far taken against the accused and this is said to be an unfair attempt on the part of the respondents in establishing the guilt of the accused even before the very framing of the charges and the commencement of the trial. The memorandum of charges filed under Rule 4 (b) of the rules dated 2-7-1965 framed by the High Court to regulate proceedings for contempt of the subordinate courts and High Court also contains extracts from Ext. P-l which bear out the acts of the respondents constituting contempt of court. The Advocate General also was heard before issuing notice to the respondents to show cause why they should not be convicted and punished for contempt of court.

The case was posted to 10-10-1966. Respondents 1 and 2 entered appearance through counsel who requested for time on 10-10-1966 to enable him to study the papers. The case was therefore adjourned to 20-10-1966. Respondents 1 and 2 filed counter affidavits on 17-10-1966 wherein they stated that if it is found that the article Ext. P-l amounts to contempt of court, they tender unqualified apology for the publication of Ext. P-L At the request of the learned counsel for the respondents, the case was adjourned to this date to enable the respondents to appear in court and read the apology. Today respondents 1 and 2 have appeared before us and they have expressed their regret to the court. They have filed a supplementary affidavit tendering unconditional apology for the publication of Ext. P-l. We have heard the arguments of the learned Advocate General, the learned counsel appearing for the petitioner and the learned counsel for the respondents. We have gone through Ext. P-l and we have no hesitation to hold that it is calculated to obstruct or interfere with the due course of justice or the lawful process of court and it amounts to contempt of court.

2. Lord Hardwicks defined 'contempt of court' in Roach v. Garvan, (1742) 2 ATK 469 in these words:

'There are three different sorts of contempt. One kind of contempt is, scandalizing the court itself.

There may be likewise a contempt of this court, in abusing parties who are concerned in causes here.

There may be also a contempt of this court, in prejudicing mankind against person before the cause is heard.

There cannot be anything of greater consequence, than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters.'

3. The definition of 'contempt of court' by Lord Russel in The Queen v. Gray, 1900-2 QB 36 at p. 40 is as follows:--

'Any act done or writing published calculated to bring a court or a Judge of the Court into contempt, or to lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of court.'

4. Lord Goddard, C. J. in R v. Odham's Press Ltd., 1956-3 AH ER 494 laid down the test to find out whether there is contempt in the following words:

'The test is whether the matter complained of is calculated to interfere with the course of justice, not whether the authors and printers intended that result, just as it is no defence for the person responsible for the publication of a libel to plead that he did not know the matter was defamatory and had no intention to defame. It is obvious that if a person does not know that proceedings have begun or are imminent, he cannot by writing or speech be said to intend to influence the course of justice or to prejudice a litigant or accused person, but that is no answer if he publishes that which in fact is calculated to prejudice a fair trial. We would refer to the emphatic statement of the law by a Judge of great eminence whose judgments are always received in this country with the highest respect, Palles, C. B. in R. v. Dolan, (1907) 2 IR 260, having posed the question whether a speech the subject of the motion would have a tendency to prejudice the fair trial of an indictment the learned chief baron said (ibid., at p. 284):

'As to the law applicable to the case, there is no doubt. Actual intention to prejudice is immaterial. I wholly deny that the law of this court has been that absence of an actual intention to prejudice is (o excuse the party from being adjudged guilty of contempt of court, if the court arrives at the conclusion which I have arrived at, that there is a real danger that it will affect the trial; or that absence of intention is to excuse the party of punishment. Such a circumstance as that ought, no doubt, to be taken into consideration in considering the nature of the punishment to be awarded, as, for instance, whether it should be imprisonment.' We do not mean to say that a newspaper may not expose and comment on someone's conduct which they believe to be fraudulent or otherwise criminal, but, if they do, the comment should be made with proper restraint, taking care especially to refrain from publishing matter of which the law forbids evidence being given at the trial. It is a perilous adventure which they undertake at their own risk, and a clear warning to this effect was given in 1924 by this court.'

The reference to the 1924 case is Rex v. Evening Standard, Manchester Guardian and Daily Express, (1924) 40 TLR 833 when Lord Heward, C. J., expressed trenchantly on 'trial by newspapers' to this effect:

'It was clear that some of these newspapers, as was shown by the materials before the court, had entered deliberately and systematically on a course which was described by some of them as 'criminal investigation'. It was urged on behalf of one respondent on the previous day that it was part of the duty of a newspaper when a criminal case was pending to elucidate the facts. If he understood that suggestion when clearly expressed it came to something like this; that while the police or the Criminal Investigation Department were to pursue their investigations in silence and with all reticence and reserve, being careful to say nothing to prejudice the trial of the case, whether from the point of view of the prosecution or the point of view of the defence, it had come to be somehow for some reason the duty of newspapers to employ an independent staff of amateur detectives, who would bring to am ignorance of the law of evidence a complete disregard of the interests whether of the prosecution or the defence, They were to conduct their investigation unfettered to publish to the whole world from time to time the results of these investigations, whether they conceived them to be successful or unsuccessful results, and by so doing to perform what was represented as a duty, and, one could not help thinking, to cater for the public appetite for sensational matter.'

And Parker C. T. observed in R. v. Duffy, 1960 2 All ER 891 thus:

'Accordingly, the question in every case is whether, in all the circumstances existing at the date of publication, including the contempt and form of the article, the circulation of the paper in which it appears, and the state of the proceedings, the article was intended or calculated to prejudice the fair hearing of the proceedings.'

5. It is clear from Ext. P-l that there is an assumption that Rev. Fr. Benedict, Onakulam is guilty in regard to offences which are still sub judicc. No authority is necessary to say that this amounts to contempt of court. The tendency to prejudice the course of justice is apparent in Ext. P-l. It is possible 'effectually to poison the fountain of justice before it begins to flow; it is not possible to do so when the stream has ceased.' Wills, J. in The King v. Paikc. 1903-2 KB 432 at p. 436 enunciates the reason for so holding in these words:

'The reason why the publication of articles like those with which we have to deal is treated as a contempt of court is because their tendency and sometimes their object is to deprive the court of the power of doing that which is the end for which it exists - - namely, to administer justice duly, impartially, and with reference solely to the facts Judicially brought before it. Their tendency is to reduce the court which has to try the case to impotence, so far as the effectual elimination of prejudice and prepossession is concerned. It is difficult to conceive an after description of such conduct than is conveyed by the expression 'contempt of court'.'

In R v. Empire News Ltd., 1920-Times, 20th January the news-paper had commented upon a pending murder case. In delivering judgment Lord Reading, L. C. J. said thus:--

'The Courts should not permit the investigation of murder to be taken out of the hands of the proper authorities and to be carried on by newspapers. The liberty of the individual even when he was suspected of crime, and indeed even more so when he was charged with crime, must be protected, and it was the function of that Court to prevent the publication of articles, which were likely to cause prejudice.'

We have therefore to consider whether the conduct of the respondents in publishing Ext. P-l constitutes contempt of court and in that connection it will be useful to refer to the well-known observations of Lord Alverstone, C. J. in The King v. Tibbits, 1902-1 KB 77 reproduced below:

It would, indeed, be far-fetched to infer that the articles would in fact have any effect upon the mind of either magistrate or Judge, but the essence of the offence is conduct calculated to produce, so to speak, an atmosphere of prejudice in the midst of which the proceedings must go on. Publications of that character have been punished over and over again as contempt of Court, where the legal proceedings pending did not involve trial by Jury, and where no one would imagine that the mind of the Magistrates or Judges charged with the case would or could be induced thereby to swerve from the straight course.'

In such cases it has been laid down that before a person can be committed for contempt the court should be satisfied that something has been published which either is clearly intended or at least is calculated to prejudice a trial which is pending, that the offending matter was published with the knowledge of the pending case or with the knowledge that the cause was imminent and see that the matter published substantially interferes with the due course of justice or so calculated substantially to create prejudice in the public mind.

This view of English law has been followed in India in several cases. It has also been held that jurisdiction in contempt can be invoked only when there is real prejudice to the party. Rankin, C. J. observed in Ananta Lal Singh v. A. H. Watson, AIR 1931 Cal 257 at p. 261 thus:

'I agree however that the Court's jurisdiction ill contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. It is not every theoretical tendency that will attract the action of the Court in its very special jurisdiction. The purpose of the Court's action is a practical purpose and, it is reasonably clear on the authorities that this Court will not exercise its jurisdiction upon a mere question of propriety where the tendency of the article to do harm is slight and the character and circumstances of the comment is otherwise such that it can properly be ignored. This is no new law.'

The above observations were followed by the Supreme Court in Rizwan-Ul-Hasan v. State of Uttar Pradesh, AIR 1953 SC 185 (187) wherein their Lordships said thus:

'As observed by Rankin, C. J., in AIR 1931 Cal 257 at p. 261, the jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice and that the purpose of the Court's action is a practical purpose and it is reasonably clear on the authorities that the Court will not exercise its jurisdiction upon a mere question of propriety.'

6. The case before us has to be decided in the light of the principles stated above. According to the learned Advocate General Ext. P-l is an article calculated to interfere substantially with the fair trial and ft amounts to contempt of court. We agree with his contention. We therefore hold that the contempt in this case is not merely technical but is calculated to interfere with due course of justice.

7. The respondents have tendered an unconditional apology and prayed for its being accepted. The law is well settled that tendering of an apology does not entitle the respondents to get the discharge as a matter of right. If there is no suggestion made against the integrity or personal character of a Judge in the article in question an unqualified apology from the contemner will normally serve the purpose. The learned Advocate General submitted that the apology tendered is genuine and it can be accepted. But the learned counsel appearing for the petitioner contended that in the nature of the article acceptance of apology will not meet out justice but it is necessary that the respondents should be punished and in support of is contention he relied on the decisions in Sub-Judge, First Class Hoshangabad v. Jawahar Lal, AIR 1940 Nag 407 and Advocate General of Kerala v. Thevar Tharakan, 1960 Ker LT 338: (1961-2 Cri LJ 109). In 1960 Ker LT 338: (1961-2 Cri LJ 109) their Lordships took the view that the apology tendered was empty formality and it was made only with a view to avoid or avert the consequences of a contemptuous act. In AIR 1940 Nag 407 it was stated thus:

'An apology is not a weapon of defence forged to purge the guilty of their offences. It is not an additional insult to be hurled at the heads of those who have been wronged. It is intended to be evidence of real contriteness, the manly consciousness of a wrong done, of an injury inflicted, and the earnest desire to make such reparation as lies in the wrong-doer's power. Only then is it of any avail in a court of justice. But before it can have that effect it should be tendered at the earliest possible stage, not the latest, and even if wisdom dawns only at the appellate stage, the apology should be tendered unreservedly and unconditionally before the arguments begin and before the person tendering the apology discovers that he has a weak case and before the Judge (when that happens, as it did here) has indicated the trend of his mind. Unless that is done, not only is the tendered apology robbed - of all grace but it ceases to be an apology; it ceases to be the full, frank, manly, confession of a wrong done which it is intended to be. It becomes instead the cringing of a coward shivering at the prospect of the stem hand of justice about to descend upon his head. It then deserves to be treated with the contempt with which cowards and bullies who do not hesitate to threaten others and to impugn their honesty and character without the slightest foundation and who cringe and wail when their own safety is at stake, are treated.'

These decisions therefore do not stand in the way of our accepting the apology if we are satisfied that it is indicative of remorse and contrition. The principle to be kept in view in the matter of purging contempt by tendering unqualified apology is stated by their Lordships of the Supreme Court in M. Y. Shareef v. Judges of Nagpur High Court, AIR 1965 SC 19, thus:

'The proposition is well settled and self-evident that there cannot be both justification and an apology. The two things are incompatible. Again an apology is not a weapon of defence to purge the guilty of their offence; nor is it intended to operate as a universal panacea but it is intended to be evidence of real contriteness.'

The apology in the case before us has been tendered at the earliest stage. Apart from the expression of unconditional regret in the counter affidavit filed by the respondents they expressed regret in open court today. We are satisfied that the tendering of the apology by the respondents is unconditional and voluntary and being conscious of the wrong done by them. The proceedings for contempt are initiated in court for the purpose of protecting the court itself and the party concerned in judicial proceedings. To use it for any other purpose will constitute abuse of process of the court. The machinery of court cannot be set in motion for the purpose of taking proceedings in contempt to satisfy one's own feelings of grudge and malice. The purpose of contempt proceedings is only 'to preserve and maintain the flow of the stream of justice in its unsullied from and purity.' When therefore the learned Advocate General submits that the acceptance of the apology is sufficient in the circumstances of this case and when we are also satisfied that the apology is genuine we do not think that we can accept the contention of the learned advocate for the petitioner.

We are also assured by the learned counsel for the respondents that there will be no repetition of such publications by the respondents. Before parting with this case it will be pertinent on our part to quote the observations of Tek Chand, J. in Rao Harnarain Singh Sheoji Singh v. Gurnard Ram, AIR 1958 Punj 273:--

'It is little realised that improper news items and comments regarding causes which are either pending or about to be taken up before Courts of law, very often hamper and hinder the proper functioning of the Courts. Taking of sides in Criminal cases, suggesting innocence or guilt of accused persons can cause grave prejudice, by either influencing the minds of Judges, Jurors, witnesses, or by creating a climate of sympathy for, or prejudice against the accused. It is but essential, that those, who are engaged in the administration of justice, should be free from outside influence, and the judicial machinery should be left unaffected by popular feelings as to guilt or innocence of persons being tried or awaiting trial on a criminal charge. The legal machinery, according to our law for adjudging the culpability of accused person, or in civil causes, for determining the rights of the parties, carefully excludes from consideration facts and circumstances, other than those which are presented in a formal manner, according to the rules of procedure and evidence. The decision rests on the material on the record, and extraneous matters, however, palpable, or seemingly important, are kept severely outside the judicial purview. Any outside comment upon a pending case, and any criticism of the parties or the witnesses, which is calculated to influence the decision, has to be placed under a legal ban. Journalists, whether out of good or evil intentions, who intrude themselves on the due and orderly administration of justice, are guilty of contempt of Court and can be subjected to summary punishment. The Courts do not countenance any interference which is calculated to impede, embarrass or obstruct the administration of justice. Any publication, which has a tendency to foil or thwart a fair and impartial trial, or any conduct which in any manner prejudices or prevents judicial investigation, whether by intimidation of or by reflection on the Court, counsel, parties or witnesses, in respect of a pending cause, constitutes contempt of Courts.

X X X X X

No journalist can assume the role of an investigator, in a pending case, and then attempt to influence the mind of the Court, regarding the merits of the case, either by comments or by publishing matter, which is de hors the judicial record. A person accused of crime in this country can properly be convicted in a Court of Justice, only upos evidence, which is legally admissible, and which is adduced at his trial in legal form and shape. Though the accused be really guilty of the offence charged against him, the due course of law and justice is nevertheless perverted and obstructed, if those who have to try him are induced to approach the question of his guilt or innocence, with minds into which, prejudice has been instilled by published assertions of his guilt or imputations against his life and character, to which the laws of the land refuse admissibility as evidence.'

In the result, we accept the apology tendered by respondents 1 and 2 and discharge the rule issued by this Court.


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