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K.P. Noordeen Mohammed Vs. A.K. Gopalan and ors. - Court Judgment

LegalCrystal Citation
SubjectContempt of Court;Constitution
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 4394 of 1967
Judge
Reported in1968CriLJ1424
ActsContempt of Courts Act, 1952 - Sections 1, 3 and 4; Constitution of India - Articles 19(1), 19(2), 215, 366(1) and 372
AppellantK.P. Noordeen Mohammed
RespondentA.K. Gopalan and ors.
Appellant Advocate A.C. Jose, Adv.
Respondent Advocate T. Chandrasekhara Menon,; M.M. Cherian and; K. Balachand
Cases ReferredArnold v. King Emperor
Excerpt:
contempt of court - interpretation - sections 1, 3 and 4 of contempt of courts act, 1952 - criminal contempt proceedings against respondent for making statement regarding motive of murder - statement to effect that murder occurred as a result of instruction from leaders of political party - such statement tend to influence witnesses and fair trial - knowledge of pendency or imminent initiation of prosecution not necessary to punish for making such statement - effect of said statement is really and substantially to interfere with due course of justice - statement published by respondent was clearly calculated to prejudice fair trial of alleged offences - held, three respondents guilty of contempt of court. - - the result was that there were clashes in various parts of the state.....raman nayar, j.1. what may be called the ruling political parties of this state, headed by the left communist party, called what they called a kerala bandh for the 11th of september last in pursuance of a policy of mass agitation against the central government. all normal business, whether public or private, was to be suspended throughout the state -- the state government declared that day a public holiday. the bandh was opposed by the political parties not in office, principally by the congress and the jan sangh; and, in the midst of all this, one apprehends that the common man (of common sense and common sensibility), whose name was, of course, freely invoked by both sides, only wished to be left alone to go about his lawful business. the result was that there were clashes in various.....
Judgment:

Raman Nayar, J.

1. What may be called the ruling political parties of this State, headed by the Left Communist Party, called what they called a Kerala Bandh for the 11th of September last in pursuance of a policy of mass agitation against the Central Government. All normal business, whether public or private, was to be suspended throughout the State -- the State Government declared that day a public holiday. The Bandh was opposed by the political parties not in office, principally by the Congress and the Jan Sangh; and, in the midst of all this, one apprehends that the common man (of common sense and common sensibility), whose name was, of course, freely invoked by both sides, only wished to be left alone to go about his lawful business. The result was that there were clashes in various parts of the State between those who, whether by force or how of force or mere sweet reasonableness, wished to ensure observance of the Bandh and those who, in like or unlike measure, resisted their 'persuasion'. In the course of such a clash on the morning of the 11th in the village of Kuttoor, near Cannanore, two Left Communist workers Karunakaran and Kunhikahannan by name, suffered stab injuries to which the former succumbed that night at the Government Hospital, Cannanore. The first information regarding this was recorded at the hospital the same night by a Head Constable of the Cannanore Town Police Station from one Kunhikannan -- probably not the injured Kunhikannan, but that is not clear -- and a case was registered on that information against one Sali, a brother of the petitioner herein under Section 302 of the Indian Penal Code. The case was transferred to the Peringome Police Station within the limits of which the occurrence took place, and Ext. P-2 it, a copy of the F. I. R. recorded at that Police station. It would appear from the remand report, Ext. P-3, that another ease was registered against Sali under Section 394 I P. C. in respect of the injuries sustained by Kunhikannan. Also against the petitioner and another (sic) of his. Ali by name, with having abetted Sali in the commission if both the offences, namely, the murder of Karunakaran and the causing of hurt to Kunhikannan. These three accused persons. Sali. Ali and the petitioner, were arrested by the police on the 23rd September at the Government Hospital, Cannanore, whore they were undergoing treatment as in-patients for injuries sustained by them, and. on the following day. they were remanded to police custody by the Sub-Magistrate. Cannanore, until their discharge from hospital or until the 7th October whichever was earlier

2. The 1st respondent, to this petition is leader of the Left Communist Party snd a Member ol Parliament. The 2nd respondent is the chief editor and the 3rd respondent, the printer and publisher of the Deshnbhirmani, a Left Communist Malay-alam daily having a fairly wide circulation in this State, especially in the Cannanore District. In the issue of that paper of the 25th September there appeared under the date-line, ''Ernakulam, September 23''. a report (Ext. P-l) in Malayalam of a statement issued to the Press by the 1st respondent, according to him on the 20th Sept-ember. The statement purported to be a review of the happenings throughout the State on the llth September in connection with the Kerala Bandh--the 1st respondent, it said, had toured throughout the State to gather first hand information. Particular reference was made in the statement to the incident at Kuttoor in the followinc (erms:

'Tearful story

It was the story of a young man who had to sacrifice his life to the naked goondaism of Congressmen, that was heard from the trembling lips of so many people in Kuttoor. Had this tragedv occurred in the course of a sudden tight one could have understood it But what I was able to make out was that it was in prosecution of a deliberate conspiracy to commit murder. It appears that a prominent Congress Leader of the Cannanore District had given instructions for this the previous day. It was as a result of being pounced upon and stabbed while he was in a peaceful and disciplined manner calling tor the observance of the Bandha bv the closure of shops that Comrade C. P. Karunakaran suffered martyrdom. Comrade Kunhikannan who was with him also suffered serious injuries. The police have seized an unlicensed loaded gun and other weapons from the shop of a Congressman at the scene of occurrence.

Murder too was planned Is it not to be inferred from all this that there was a pre-arranged plan to commit murder? The enlightened people of the locality are determined to press forward to the chosen destination of that class for whom Comrade Karunskaran has sacrificed his life '

3. According to the petitioner. this, statement was a deliberate and distorted version of what actually happened and was made with the avowed object of creating an impression among the public, and also on the authorities concerned, that the incident that resulted in the death of Karunakaran was a pre-meditated, preplanned and coldblooded murder. By making and publishing the statement the respondents were trying to prejudice mankind, and, in particular persons likely to be called as witnesses in The case against the petitioner and his brothers, and thus interfere with the course of justice

4. Copies of the petition and the affidavit in support thereof as also of the memorandum of charges prepared and filed by the petitioner were duly served on the respondents. They filed counter-affidavits admitting the making and the publication of the statement in question but denying the charge against them and disclaiming all knowledge of any proceedings against the petitioner and his brothers in respect of Ka:unakaran's death at the time they made and published the statement. They had no Intention whatsoever to interfere with the course of justice; nor does the statement tend to do so. The statement was only general review of what happened throughout the State an the 11th September and it was made and published bona fide and in the usual course in exercise of the right of freedom of speech and freedom of the press

5. When questioned at the commencement of the hearing, the respondents said that they fully understood the charge gainst them. They repeated the denial made in their counter-affidavits and said that they had thing to add to what they had said therein

6. As is to be expected, the case has been very elaborately argued before us with exhaustive, one almost said exhausting, reference to authority -- we have been referred to well over fifty books, both law reports and text books. We have also had the valuable assistance of the learned Advocate General who has brought to our notice a report by 'Justice' on Contempt of Court which, by setting out the present state of the law in England and suggesting reforms, furnishes a useful pointer as to what should be the law in this country -- our law on the subject is after all derived from the English law and from principles of justice, equity and good conscience. We do not, however, propose to make any detailed reference to the authorities that have been cited before us, for, in our opinion, the principles are well settled and admit of little doubt. The view taken in all the decided cases is more or less the same and, such differences as may appear are, as we hope to show, more of form than of substance. What we are called upon to do is to apply the well understood principles to the facts of this particular case, and, for that, since the facts are rarely the same decided cases can be of little assistance.

7. Three questions arise in cases of this nature. The first, in common with: every criminal case, involves a definition of the offence charged. What constitutes a contempt of court, and do the facts proved make out that offenre? The second, analogous to the question raised in provisions like sections 476 and 479 of the Criminal Procedure Code, is whether, having regard to all the circumstances, it is expedient in the public interest -- as observed in Mc. Leod v. St. Aubyn, 1899 AC 549 the power to punish contempt 'should be used only from a sense of duty and under the pressure of public necessity' -- that the contemner should be proceeded against and convicted And the third is (as. for example, in Section 562 Criminal Procedure Code) whether the conviction should be followed by a sentence and if so what the stntence should be.

8. With regard to none of these questions is there any statutory guidance excepting that Section 4 of the Contempt of Courts Act 1952 lays down a limit of punishment and says that the accused may be discharged or the punishment awarded remitted on apology being made to the satisfaction of the court. For the rest, the statute is content with saying that every High Court shall have and exercise the same jurisdiction, power and authority in accordance with the same procedure and practice in respect of contempt of courts subordinate to it as it has and exercises in respect of contempts of itself. but that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code. Proceedings for contempt are not preceded by a preliminary inquiry as to the expediency of taking action so that, except in cases where complaint is dismissed in liminp on the ground that it is not expedient in the public interest that it should be proceeded with, the three questions referred to above the generally considered together and it sometimes happens that considerations germane to the second and the third questions are treated as if they were exceptions to or mitigations of, the offence as defined, like, for example, the exceptions to Section 499 of the Indian Penal Code and the mitigations in the exceptions to Section 300. The 'Justice' report to which reference has been made seems to regard some of the factors which we consider relevant to the second question as exceptions or defences to a chaise of contempt. But it is interesting to note that one of the procedural safeguards it recommends is that no prosecution for criminal contempt outside the court should be initiated except by or with the consent of the Attorney General. Most of the matters which we think should be considered in answering the second question are incapable of precise definition and verv often of satisfactory proof so that it would be difficult, if not impossible, to consider them in relation to the first question.

9. In Hunt v. Clarke. (1889) 58 LJ Q B 490 a case that has been repeatedly followed by the, courts. both English and Indian. Cotton, L. J observed:

'There are two questions really involved in this application to commit. First of all, was there any contempt, and secondly, if there was any contempt, was it such a contempt as would require or justify the Court in making an order against the respondent, and was it a thing which would justify the applicant here in calling upon the Court to exercise its verv extraordinary jurisdiction which is exercised in proceedings for contempt?'

Then he went on to observe that the two were distinct questions and to sav:

''Now that I apply and adopt as the principle which ought to regulate these applications -- that there should be no such application made unless the thine done is of such a nature as to require the arbitrary and summary interference of the Court in order to enable justice to be duly and properly administered without any interruption or interference, that is what we have to consider. and in my opinion although as say there is here that which is technically a contempt, and may be such a contempt as to be of a serious nature, I cannot think there is such interference or any such fear of any such interference with the due conduct of this action, or any such prejudice to the defendant who is applying here, as to justify the Court in interfering by this summary and arbitrary process '

10. In The Queen v. Payne (1896) 1QB 577 Wright J said in agreeing with Lord Russell. C. J. who had adopted the view of the law stated by Cotton. L. J. in the fase just referred to:

'I agree with all that the Lord Chiei Justice has said, and I only wish to add that, tn my opinion, in order to iustify an application to the Court the publication complained of must be calculated really to interfere with a fair trial, and. if this is not the case, the question does not arise whether the publication is ao objectionable in its terms as to call for the Interference of the Court. If the publication is found to be likely to interfere with a fair trial, a second question arises whether, under the circumstances of the oase, the jurisdiction which the Court in that case possesses ought to be exercised, not so much for punishment as for preventing similar conduct in the future. That is the rule which I wish to adopt with regard to applications of this nature.'

Lord Russell C. J. himself had said:

'No doubt the power which the court possesses in such cases is a salutary power, and it ought to be exercised in cases where there is real contempt, but only when there are serious grounds for its exercise.'

11. These observations clearly draw the distinction between the first and second questions we have posed, the first whether the offence has been committed, and the second whether it is expedient to proceed against the offender. But, it is often very difficult to say whether a particular factor: falls within this side or that of the dividing line. Indeed, some decisions do not regard these as distinct questions, and, having regard to considerations relevant to the second question, go on to state that there is no contempt when, what they really mean, is that the contempt is not of such a nature as to call for the interference of the court. This difference of approach accounts for the seeming inconsistencies as to what really constitutes a contempt of court.

12. The case on hand falls within the third of Lord Hardwicke's famous three classifications, in the St. James's Evening Post Case Roach v. Garvan (1742) 26 ER 683 namely, prejudicing mankind against persons before the cause is heard. Such prejudice, especially if it affects the judge or the jury or the witnesses, is bound to inter fere with the due course of justice and thati is why such conduct is regarded as a contempt of court. As Lord Hardwicke went on to observe, nothing is more incumbent upon courts of justice, than to preserve their proceedings from being misrepresented: nor is there anything of more pernicious consequence, than to prejudice the minds of the public against person concerned as parties in causes, before the cause is finally 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

13. Limiting the definition to the purposes of this case, in other words, to this particular class of contempt, we would say that anything that tends to prejudice the fair trial by a court of a proceeding that is pending or is imminent constitutes a contempt of court.

14. Many decisions use the word, 'calculated' instead of, 'tend'. But they use it in the same sense as. 'tend', in other words as apt to nave the result mentioned, not in the sense of a deliberate intention or design to achieve the result although, of course, such an intention would be an aggravating feature. Thus, in (1896) 1 QB 577 Lord Russell, C. J. observed that the applicant in 8 case of contempt 'must show that something has been published which either in clearly intended, or at least is calculated, to prejudice a trial which is pending.' And nankin, C. J. put the word, 'calculated' within quotation marks in Ananta Lal Singh v A. H. Watson AIR 1931 Cal 257 at p. 261 to indicate that the word was used in this special sense.

15. The tendency must, however, be direct and real not merely a theoretical possibility, or, to adapt the expressive language of an Irish Chief Justice it must be much more than a possibility upon a possibility, a contingency upon a contingency. We must look at the realities of things. What really constitutes the offence is the likely consequences of the act. not so much the mental element by which it is accompanied, and hence the courts insist on close proximity both in point of time and causation between the act and the undesirable consequences. In other words, the tendency must amount to a real and present danger--we use these words in their ordinary sense, not in the somewhat special sense they seem to have acquired in the American formula --that the undesirable consequences will follow. If a remote consequence, remote in point of time or of causation, were sufficient, then to make such an act an offence might be an unwarranted interference with the fundamental right of freedom of speech tspecially if there is no evil mind accompanying the act.

16. It is not. however. necessary o demonstrate that there has been actual interference with the due course of justice. As stated in Halsbury 3rd Edition Vol. 8 at p. 9:

'The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere, with the due course of Justice.'

17. All the cases are agreed that no mental element such as intention or knowledge in relation to the effect of the act is necessary. But. some cases as, for example. Ramaswamy v Jawaharlal, AIR 1958 Mad 558, Janardhannan v T. K. G. Nair 1960 Ker LT 792-0961 (2) Cri LJ 104) and Rev P'r. Sebastian v. Kambissery Karunakaran 1987KerLJ l53-(ATR 1967 Ker 177) Insist on knowledge on the part of the offender of the collateral fact of the pendency of the cause or its imminence. It would, however appear that many of the cases cited as authority fot the proposition that such knowledge is necessary, only find such knowledge as a question of fact and mention it more as an aggravating feature, than as an essential element of the offence, There are, on the other hand, a number of decisions, notably R. v. Odhams Press, Ltd. (1957) 1 QB 73 which hold that such knowledge is not necessary. Indeed, as pointed out by the 'Justice' report, the decision in Odhams case 'falls little short of the proposition that the publication of an article which is likely in fact substantially to prejudice the fair trial of any pending proceedings which might be taking place in any assize court, court of quarter sessions or magistrates' court anywhere in the United Kingdom, or in any civil action in which a writ had been issued in the High Court, or in which a claim had been issued in any country court, is contempt of court, and therefore a criminal act, even though the alleged contemner did not know and even though he could not possibly have known of the pending civil action or criminal proceeding.' Having regard to the fact that it is generally agreed that intention or knowledge as to the likely consequences of the act is immaterial, in other words, that no mens rea in respect of its evil tendency need accompany the act, and the offence is, in that sense, one of absolute liability, it might well be that knowledge of the collateral fact ol the pendency or imminence of the cause is not material and that whether there was or was not such knowledge is a consideration that properly appertains to the second of the three questions we have posed and not to the first. For, it might well be asked, if the best of motives and the complete absence of mens rea in relation to the consequences is no excuse so long as the evil tendency is there, why should ignorance of the pendency of the cause which, at best, can only establish absence of such mens rea, be an excuse? We might also observe that, except in the case of persons actually connected with the cause or who have proclaimed knowledge of its pendency or imminence, such knowledge is so easy to deny and so difficult to establish that, in the vast majority of cases, interference with the course of justice in its most effective and most objectionable form, namely, the publication of prejudicial matter in newspapers, could be accomplished with impunity if such knowledge were a necessary ingredient of the offence.

18. We do not, however, propose to enter into the controversy at greater lenRth because we think that if such knowledge is not an essential ingredient of the offence, its absence, by excluding mens rea, would certainly be a very relevant consideration in deciding the second question, namely, whether the court should exercise its jurisdiction to punish. And, what is more so far as this case is concerned, there can be little doubt that such knowledge must be imputed to the respondents.

19. Nor do we think it necessary to enter into the controversy whether the cause must be actually pending or whether it is enough that it is imminent, although we might observe that both reason and authority weigh in the direction that imminence is enough, imminence being a sufficient proximity to the evil apprehended to attract the raison d'etre of the offence. For, it is well settled that the cause or proceeding need not be pending in the court of which contempt is alleged -- it is enough if the machinery of the law has been set in motion to bring the wrong-doer to justice. In the case of a criminal proceeding like the present, in England it is enough if the alleged offender has been arrested. In India so far as cognizable offences are concerned it is enough if proceedings have been commenced by the police under Chapter XIV of the Criminal Procedure Code so that the case has inevitably to go before a magistrate under Sections 167 and 173 of the Criminal Procedure Code and the magistrate can, if he thinks fit, take cognizance of it whatever may be the result of the police investigation -- that, it is well recognised, amounts to an institution of criminal proceedings for the purposes of the criminal offence of a false charge under Section 211 of the Indian Penal Code, and to a prosecution for the purposes of the Civil wrong of malicious prosecution. In the present case, the offending statement was made by the 1st respondent and was published by the 2nd and 3rd respondents after the case of murder had been registered by the police and investigation begun so that the criminal proceeding for bringing the offenders to justice before a court of law had commenced

20. Turning now to the second of the three questions, as observed by Jenkins C J. in Legal Remembrancer v. Motilal Ghose, ILR 41 Cal 173 at p. 221- (AIR 1914 Cal 69 at p. 110) with reference to the court's powers to punish contempt.

'It is therefore no matter tor surprise that the cases are full of warnings that this arbitrary, unlimited and uncontrolled power should be exercised with the greatest caution, that this power merits this description will be realised when it is understood that there is no limit to the imprisonment that may be inflicted or the fine that may be imposed save the Court's unfettered discretion, and that the subject is protected bv no right of general appeal.'

Many of the reasons given in the books for this curb they would place on the power to punish for contempt not so much because of the substance of the law as because of the procedure by which it is enforced -- no longer obtain so far as this country is concerned. The Contempt of Courts Act imposes an upper limit for the punishment --simple imprisonment for six months 01 a fine of Rs. 2000/- or both -- and Article 136 (if not Article 134) of the Constitution provides for an 'appeal although only bv special leave which we suppose will be more readily granted where there is the possibility of injustice because there i6 no appeal in the ordinary course. And, although it is often said that the procedure followed in cases of contempt is a summary procedure, the courts are very careful to see that the accused person is Riven the fullest opportunity to make his defence and to ensure the fullest compliance with the rules of natural justice. Indeed, most courts adopt a procedure akin to that prescribed in Chapter XX of the Criminal Procedure Code for the trial nf summons cases by Magistrates excepting that evidence is often on affidavit and no evidence is taken of admitted facts --some, like this Court, have framed rules to ensure fair trial. And, excepting, in cases of contempts ex facie, or where the contempt alleged is the scandalising of the very court taking action in the matter, it can scarcely be said that the court is the aggrieved party, the prosecutor, the witness and the judge all rolled into one

21. But then are nevertheless still very many weighty reasons why the power to punish for contempt should be sparingly used. In the first place it is to be used only from a sense of duty and under the pressure of public interest, not so much to punish the particular offender as to deter like conduct in the future. Secondly, in case of criminal contempt like the present, courts which by tradition and training always look for mens rea in a criminal offence and feel unhappy over absolute liability, will naturally be slow to punish where there is no mens rea even if it be that, strictly speaking, no mens rea is required to constitute the offence. Thirdly, public interest being the touchstone, there might be countervailing public interests which demand thai fret speech should be allowed. Two examples are given in the 'Justice' report. One is where there is a bill before the legislature regarding a matter which is before the court in some cause or other Free discussion regarding the merits of the bill should not be curbed merely because of the pending cause The second example is where wide publication becomes necessary in order to trace and apprehend an absconding offender, (And. where the contempt takes the form of scandalising the court, a bona fide complaint of misconduct on the part of a judge made to the proper authority might be another example) In both cases the countervailing public interest outweighs the public interest served by restraining discussion ot publication of matter pertaining to the pendine cause, and therefore the court will not proceed to convict even if it initiates action for contempt

22. The offence consisting as it does,e of the mere tendency, not the actual effect, of the act complained of. courts are generally reluctant to punish unless as Jenkina C. J. put in AIR 1914 Cal 69 it be shown that it is probable the publication would substantially interfere with the due administration of justice. Or as Rankin, C. J. did in AIR 1931 Cal 257 in words that won the approval of the Supreme Court in Riswan-Ul-Hasan v. State of Uttar Pradesh. AIR 1953 SC 185:

'The Court's 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. 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 euch that it can properly he ignored.'

Of course this does not mean that actual prejudice must be established. But the danger of prejudice must be so rea! as in itself to amount to a substantial interference with the due course of justice. An attempt to influence a judicial decision (by outside influence) is nonetheless, an interference with the due course of justice for its being unsuccessful

23. As we have already indicated, whether the contemner had knowledge of the pendency or imminence of the cause might also be a factor which the court has to consider in deciding whether it should exercise its jurisdiction to punish for contempt. But, whether such knowledge is really an ingredient of the offence, or. only a consideration to be taken into account in deciding whethei the offender should be punished or not. we might observe that knowledge is. more often than not, a matter for inference. And. where the circumstances are such, that a reasonable man would infer therefrom that a judicial proceeding must be pending or is imminent such knowledge will be imputed.

24. These are some the more important matters which a court will take into consideration in deciding whether it should exercise its very special jurisdiction. But, since it is rarely that the material for taking the decision is before it before the hearing is over, forbearance usually takes the form of refusal to convict even though the offence be made out instead of, as one would ordinarily expect, refusal to commence proceedings.

25. With regard to the third question, one of the circumstances in which the court might think it unnecessary to convict --this perhaps properly falls under the second question --or. bavins convicted, to punish, would be where an apology is made to the satisfaction of the court. This is recognized by statute -- see the first proviso to Section 4 of the Contempt of Courts Act There might be other circumstances such as lack of intention, or want of knowledge of the contents of a statement published, that might induce the court to discharge the offender with a mere admonition or sometimes with a mere expression of disapproval or an order for costs.

26. Coming now to the facts of the case on hand, there can be no doubt what-soever that anybody reading and believing the statement made by the 1st respondent and published by the 2nd and 3rd respondents would necessarily come to the conclusion that those who caused the death if Karunakaran, whoever they may be, were guilty of deliberate and premeditated murder. The statement would rule out altogether any plea of private defence or any plea which under the exceptions to Section 300 of the Indian Penal Code wotrld serve as a mitigation of the offence by reducing it to one of culpable homicide not amounting to murder. The statement, as of a fact that a prominent Congress leader had given instructions for the murder the previous day, would carry conviction to anybody inclined to believe it that the charge of deliberate conspiracy to commit murder was based on firm ground and not on mere surmises. Thai no particular person is named as having committed the murder makes no difference. The petitioner and his two brothers had, in fact, been arrested in connection with the murder before the statement was published. And the effect of the statement on the minds of persons readin and not forthwith rejecting it -- and it must be remembered that the statement was intended to be believed and would, in the normal course, be believed at least by those whose political sympathies are with the respondent -- could only have been that, whoever was brought to trial for the alleged murder, was guilty of murder. There can, therefore, be no doubt that the statement is calculated to interfere with the due course of justice, and interfere in so substantial a manner as to cause real prejudice. To borrow the language of Wills J. in Rex v. Parke (1903) 2 KB 432 at p. 436 the tendency if not the object ot the statement is to deprive the court which is to try the case 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. As Cotton L. .1. said in (1889) 58 LJ QB 490, if any one discusses in a paper the rights of a case or the evidence to be given before the case comes on, that would be a very serious attempt to interfere with the proper administration of justice and would be met with the necessary punishment in order to restrain such conduct. Even the possibility of the judge being influenced by the statement cannot altogether be ruled out, for. it is not right to assume that a judge is a person who cannot, in any circumstances, be affected by outside information But, it might, perhaps, be said that the possibility of a trained judge being affected, even unconsciously, by a newspaper report is so remote that, if that were all, the court might not be persuaded to exercise its jurisdiction to punish tor contempt. That cannot however be said of the persons who saw the occurrence arid are likely to figure as witnesses at the trial. There is the very real danger that a result of the statement, persons in a position to assist the court by their evidence might not be willing to come forward and that persona appearing as witnesses might be influenced in their testimony. The most educated of persons is prone to regard the printed word as true, and there can be little doubt that such of the witnesses to the occurrence as are of the same political persuasion as the respondents would bring themselves to believe, as a result of reading the statement, that the persons who caused the death of Karunakaran were guilty of a deliberate and premeditated murder and give evidence accordingly--they might even regard that as the official line of their party and therefore as a command. Even a perfectly disinterested and perfectly honest witness is likely to be influenced by the statement and come to the conclusion that the causing of the death was not in private defence or in the course of a sudden fight, but was the result of a pre-arranged plan. And witnesses who might be in a position to depose in favour of the accused at the criminal trial might keep away rather than incur the hostility of influential persons like the 1st respondent. We can think of no counter-vailing public interest -- and none has been suggested -- and we have no doubt that both the first and second questions posed by us must be answered against the respondents.

27. We have been asked to read the statement as a whole and come to the conclusion that its object was only to decrv the political opponents of the respondents and not to prejudice the fair trial of persons who might be charged before court with having caused the death of Karunakaran ' We have gone through the entire statement and we are prepared to hold that its real object was to exploit the situation as also communal passions to the best political advantage. But, that cannot in any way. alter the fact that the effect of the statement is reallv and substantially to interfere with the due course of justice and to prejudice the fair trial of persons who might be charged with having caused the death of Karunakaran

28. So far as knowledge of the pendency or the imminence of the proceeding is concerned, we have this to observe As men of ordinarv sense and ordinary knowledge of human affairs -- and we must assume the respondents to be that -- that respondents must have known that, when a person is killed, and especially when that happens, as in this case, in a public place in the presence of a crowd largely composed of his sympathisers, information would be given to the police without delay and that the police would thereupon register a case against the persons alleged to have caused the death. It is therefore no use the respondents saying that they were unaware of the police having registered a case against the petitioner and his brothers, or of the police having arrested them. The respondents must have known that the police would in the ordinary course, be seized of the matter without delay and would have registered a caee against the alleged offenders. And, as we have already seen, the statement made and published by them was clearly calculated to prejudice the fair trial of the alleged offenders whoever they might be.

29. It has been suggested that there being no statutory definition of contempt of court, to regard that as a punishable offence would be violative ol the fundamental right in Sub-clause (a) of Clause (1) of Article 19 of the Constitution. Article 19(2) which expressly saves the operation of anv existing law in so far as such law imposes reasonable restriction on the exercise of the right conferred by this sub-clause in relation to contempt of court and Article 215 which says that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself, seem lo be a sufficient answer lo this. The law of contempt of court, was an existing law when the Constitution came into force -- Article 19(2). we think, uses the phrase, 'existing law' in the sense in which it it is used by the marginal not to Article 372 rather than in the sense in which it is defined in Article 366(1) as meaning a.' enacted law -- and Article 19(2) seems to have been expressly designed to save it from attack under Article 19(1)(a) so long as the restrictions it imposed were reasonable The makers of the Constitution certainl knew that there was no statutory definition of the offence of contempt of court but obviously they did not regarding that as an impediment. It seems to us beyond rloubt that a law which prohibits speech with reference to cause that is pending or is imminent in such a manner as to interfere with the course of justice, and which provides for the punishment of such interference after due trial, only imposes a reasonable restriction. reasonable in substance as well as in procedure, on the freedom of speech -- see in this connection State v. Brahma Prakash. AIR 1950 All 556 (FB) and Legal Remembrancer v Bibhuti Bhusan, AIR 1954 Pat 203. We might add that there are at least three decisions of the Supreme Court, AIR 1953 SC 185. Brahma Prakash v. State of U. P.. AIR 1954 SC 10 and Sukhdev Sineh v. Teja Singh, AIR 1954 SC 186 which proceed on the basis that the law of contempt of court as understood by the courts in this country is a valid law.

30. Respondents 2 and 3 have pleaded that they have acted under the shelter of the well recognised principle of freedom of the press. But to adapt the language of Russell C. J. in Reg v Gray. (1900) 2 QB 36 at p. 40 it must be remembered that under our Constitution the liberty of the press is no greatet and no less than the liberty of every ritizen--both stem from Art. 19(1) fa). The following observations of the Privy Council in Arnold v. King Emperor, ILK 41 Cal 1023 at p 1063 = (AIR 1914 PC 116 at p. 124) are apposite;

'Their Lordships regret to find that there appeared on the one side, in this case the time worn fallacy that some kind of privilege attaches to the profession of the press as distinguished from the members of public. The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever lengths the subject in general may go, so also may the journalist, but. apart from the statute law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of the printed matter may. and in the case of a conscientious journalist do, make him more careful; but the range of the assertions, his criticisms or his comments, is as wide as. and no wider than, that of any other subject. No privilege attaches to his position.'

31. We hold that all the three respondents are guiltv of contempt of court and convict them accordingly. So far as the sentence is concerned it must be remembered that respondents 2 and 3 only published the statement made by the 1st respondent in what they considered to be the ordinary course of business without, perhaps, properly adverting to its contents. And, even so far as the 1st respondent is concerned, we are quite prepared to accept the submission made on his behalf that he had no intention to interfere with the course of justice or to prejudice the trial of the accused concerned in the criminal case. It would appear from what they themselves have urged--and we are prepared to accept that at its face value--that, had the respondents been better informed, they would not have made or published the statement in its present form. They might have been well advised to tender an apoloey. and, had they done so. we might have been disposed to accept it. We do not think that their ignorance and their obstinacy which, in effect, is what we are punishing, calls for the severe deterrent of a sentence of imprisonment, and. taking all the circumstances into consideration, we think that the interests of justice would be served by imposing a sentence of fine on the 1st respondent and by administering an admonition to respondents 2 and 3. Accordingly, we sentence the 1st respondent to pay a fine of Rs. 200: in default of payment by the end of this month to suffer simple imprisonment for one month. We discharge respondents 2 and 3 after due admonition.


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