1. This is an application filed by the Government Pleader under Sections 3, 4 and 5 of the Contempt of Courts Act -- Central Act XXXII of l952, for taking such action as this court thinks fit under the circumstances, against both the respondents herein.
2. The first respondent Sri Mathai Manjuran is the editor and the second respondent Sri. K. Sudhakaran is the publisher of the Malayalam Daily newspaper called 'Kerala Prakasom' printed and published at Ernakulam.
3. In the petition filed by the Government Pleader, it is stated that in the issue of the newspaper dated 29-7-1958, the respondents have published a report purporting to be an account of the occurrence on the 26th July 1958 at Varandarappally (near Trichur). In that occurrence, about 5 people lost their lives and several others sustained injuries.
4. The heading of report is : (Here follow the heading in malyalam script). A copy of the issue of the said paper of the said date has also been attached along with the petition.
5. It is further stated that proceedings under the Cr. P. C. by way of investigation into the occurrence were taken almost immediately to bring the offenders to trial in a court of law and that it was also obvious and well known that a trial of the case in a court of law was imminent.
6. Paragraph 4 of the petition filed by the Government Pleader gives verbatim the report published in the said paper about the occurrence.
7. It is further stated that the said report published by the respondents in the 'Kerala Prakasom' tends to interfere with the fair trial of the case and to obstruct the course of justice and the proper administration of law. The occurrence itself appears to have given rise to rival versions and the Court, which has to try the case, has to inquire and decide which, if any, of these versions is true and also as to who, if any, are guilty.
8. It is further stated by the Government Pleader that the report in the newspaper proceeds on the assumption that certain persons are guilty and that certain others are not. The petition winds up by submitting that the respondents, by publishing such, a report, are guilty of contempt of court. The petition by the Government Pleader was filed on 12-9-1958. The full text of the report appearing in the said newspaper, together with its head lines, and which is the subject of this application is given by us in full as an Annexure to this judgment.
9. The Secretary, Home Department of the Government of Kerala, has filed an affidavit in this application on 10-10-1958. The affidavit incorporates all the matters mentioned in the petition originally filed by the Government Pleader. In paragraph 8 of the affidavit of the Home Secretary, the title of the article is extracted. In paragraph 4 of the affidavit, it is stated that the Police Department of the State started proceedings immediately under the Cr. P. G. by way of investigation into the occurrence with a view to bring the offenders to trial in a court of law and the said proceedings are still pending. It is also stated that it was a well known fact that the trial of the case in a court o law was imminent.
10. Paragraph 5 of the Home Secretary's affidavit extracts in full the article published in the 'Kerala Prakasom' dated 29th July 1958 and which has already been extracted in paragraph 4 of the petition filed by the Government Pleader. In paragraph 6 of the affidavit it is stated that the occurrence appears to have given rise to rival versions and the question for enquiry and decision by the court is, which, if any, of these versions is true and who if any, are guilty and if so, to what extent. It is also stated that the report in the newspaper proceeds on the assumption that certain persons are guilty and certain other persons are not. In paragraph 7 it is stated that the Government are advised that the respondents, by publishing the said report, have committed contempt of this Hon'ble Court and the deponent prays for action being taken accordingly.
11. In paragraph 8 it is stated that the attention of the State Government was drawn to the publication of the said report by about 20-8-1958 by the Inspector-General of Police (Special). The question was examined by the Government and they gave instructions to the learned Advocate-General to consider the position and to bring to the notice of the High Court about the matters contained therein. It is also stated that there was no intentional delay in filing the application.
12. An affidavit of the Inspector-General of Police (Special) Kerala State has also been filed in this application on 10-10-58. It is stated that the deponent ot the affidavit is in charge of C. I. D., including Special Branch and that the Special Branch office is dealing with scrutiny of newspapers. In paragraph 2 it is stated that on or about 29-7-58, he came across newspaper reports regarding the Varandarapally incident and the Inspector-General of Police considered it necessary that further scrutiny should be made. On or about 9-8-58, the Special Branch office collected the necessary press cuttings under his instructions, and after perusing those cuttings, the Inspector-General of Police was of the view that the matter required discussion at a high level to decide the course of action to be taken against the concerned newspapers; and as the matter was of great importance, it was also considered that the question of taking action must be discussed at Government level. The Law Minister of the State was then on foreign tour and was expected to return to the Capital very shortly. It is also stated that, on the return of the Law Minister from his foreign tour to the State, the Inspector-General of Police (Special) had a discussion with him and it was decided on or about 21-8-58 that the matter should be investigated by the Advocate-General of the State and with this purpose the press cuttings were forwarded to the Advocate-General on 26-8-58. After a final decision was arrived at, the matter was brought to the notice of the Court on 12-9-58.
13. In response to the notice issued by this Court to show cause why action should not be taken, the respondents appeared and also filed a joint counter-affidavit contending in the main that they are not guilty of contempt of Court. Both the first and second respondents have taken the same line of defence as is evident from their joint counter-affidavit filed in this matter. In paragraph 1 of the counter-affidavit it is stated that the first respondent is the Editor and the second respondent the Publisher of newspaper 'Kerala Prakasom'.
14. In paragraph 2 it is averred that the District Government Pleader, Trivandrum filed the present application on 12-9-1958, 44 days after the report in question was published in the newspaper 'Kerala Prakasom' and the delay has not been properly explained and as such, the application should be rejected on that short ground. Even the affidavit filed by the Home Secretary and the Inspector-General of Police do not contain any explanation for the delay.
15. It is further stated in the affidavit that the discussion stated to have taken place between the Inspector-General of Police and the Law Minister was not proper. The Inspector-General or the Law Minister has no right to decide whether the matter amounts to contempt or not and it is only this Court that could decide such a matter. The Inspector-General of Police has been allowed and influenced by the Law Minister who has imported politics in this case. In paragraph 5, the respondents denied the allegation that the impugned report tends to interfere with the fair trial of the case and to obstruct the course of justice and the proper, administration of law. It is stated that between the rival versions, the supporters of the Government have given one version and the same is not mentioned in the petition or the affidavits.
16. It is further stated that there is absolutely no danger of polluting the fountain of justice by the publication of the report which is now the subject of this application, especially in view of the absence of jury and also because the Court trying the case can draw a judicial distinction in respect of facts brought before it. Any such trial could not be affected by the report in any manner.
17. In paragraph 8 of the counter-affidavit it is stated, that at the time of the publication of this report, there was very grave doubt in the mind of the public as to whether the occurrence in question will at all be investigated, enquired into, or tried, as one of the set of persons involved in the occurrence were members of the Communist Party, that is, the Party in Power, who openly advocate violence. Paragraph 8 deals with the commutation by the present Government of the sentence of death passed on Vasu Pillai and it is suggested that it was so done because Vasu Pillai belonged to the Communist Party. Such acts created a lasting suspicion in the public mind regarding the altitude of the Ministry towards criminals of their party.
Reference is also made to the death of one Thomas Varghese, stated to have been killed in the course of a skirmish between the members of the Communist party and others at Alleppey on one of the occasions when the Education Minister visited the place and it is also stated that there has been no proper investigation of that matter. Reference again is made to the transfer of a Magistrate namely, Mr. T. A. Paraman. In view of all these circumstances, it is stated in the counter-affidavit that crime grew to a most serious proportion and that there was danger of the impairment of the fundamental liberty of life and property. These circumstances, according to the respondents, rendered the suggestion of proper investigation, enquiry and trial in the case in question, improbable and remote.
18. It is further stated in paragraph 9 of the counter-affidavit that on 23-7-1958, a body of Communists of over 100 persons attacked the office of the respondents situated in the Hospital Road. Ernakulam in broad day light at about 2 P.M. Though a large number of Policemen and officers in uniform were present very near the place, they did not care to interfere and disperse the rioters nor did they enquire into the matter afterwards. The persons responsible for the attack have never been prosecuted, nor put up for trial before Court. Therefore, it is stated :
'We could not think that the occurrence at Varandarappilly would be brought before a Court for trial in such a political background with the Communist Party in power'.
In paragraph 10, it is again stated that there was a feeling in the mind of the non-communist section of the public that Communists are at liberty to do anything they like and they can get away, without being made to answer for those acts. Reference is made to the declaration stated to have been made by the Chief Minister, Kerala, about the Chinese method of civil war to be adopted regarding the other parties of the State and that such statement by the Chief Minister was the signal for the starting of acts of lawlessness on a large scale and this occurrence is one among the unfortunate occurrences which created a lawless condition in the State. It is also stated that officers of the State Government began to look for directions and instructions from the Ministers even in cases where the security of life and property of people were in danger.
19. In paragraph 11 it is stated that it was highly improper on the part of the Inspector-General of Police to have discussed this matter with the Law Minister of this State and it was really due to the influence exercised by the Government and at its instigation that a number of contempt applications were filed in this Court, only to serve a political purpose. In paragraph 12 it is again stated that it is not clear from the affidavit of the Inspector-General of Police as to whether he decided to take action or whether the Law Minister decided to take action and also whether, action has been taken about the other papers which also contained matters similar to the one before this Court as admitted by the Inspector-General of Police in his affidavit.
20. In paragraph 13 it is stated that Article 14, of the Constitution guarantees equality before law and equal protection of law to all citizens and discrimination is alleged, because Government are proceeding only against the respondents, though very many other papers also published substantially the same report.
21. In paragraph 14 of the affidavit it is stated that the impugned report was given out by a police officer to the Press as is stated in the report itself; and it aiso further stated that the entire report is a report that was published by the Police and released to the Press and so the report is only a reproduction of the already published police report about the occurrence and therefore, there is no contempt of Court. It is also stated in paragraph 15 of the report that such a version was given by the police officers because, they too were under, the impression that the case may not come for a proper trial unless the pressure of the public was brought to bear upon the same.
Paragraph 16 refers to an apprehension which is stated to have been entertained by the public at or about that time, that unless the Central Government came to the rescue of the people of Kerala; a permanent state of lawlessness will prevail. These matters were discussed in the State Legislature and in Parliament and has also been the subj'ect of speeches and statements made by several persons including the Prime Minister and the Law Minister of India.
22. In paragraph 17 it. is stated that the report in the newspaper dealt with a very unique kind of occurrence, in that one set of participants in the occurrence were active members of the Communist Party and supported openly by the Government and this fact added to the fear that murders committed might go untried and that still more, murders would be committed.
23. In paragraph 19 it is repeated that the eminent office of the Law Minister of the State has been brought to bear upon the initiation of these proceedings in this Court.
24. In paragraph 20, reference is made to a letter addressed to the first respondent by the Director of Public Relations, Kerala State, dated 23-11-1958 regarding the steps to be taken for the promotion of cordial relations between Government and the Press.
In paragraph 22 of the counter-affidavit it is stated :
'The report in question was not intended, nor does it interfere with the fair trial of the case; but was intended to bring out the real facts of the occurrence, so that the party in power will not be in a position to suppress a prosecution of the culprits.'
Finally, it is stated in paragraph 23 of the affidavit, that the respondents are not guilty of any contempt of Court, as at the time or the report, the matter did not come for trial and the possibility of a trial under the circumstances was remote.
25. The learned Advocate-General has filed a further affidavit on 17-12-1958 sworr. to by the Circle Inspector of Police, Trichur.. In the said offidavit it is stated that the deponent was the Circle Inspector of Police, Trichur from 16-4-1958 and that he was the Circle Inspector of Police in charge of Trichur Circle on 26-7-1958 and onwards. It is also stated that he is the officer who investigated Crime No. 105/58 of Pudukad Police Station within his Circle, It is further stated that the said crime was registered by the Sub-Inspector of Police, Pudukad on the strength of a signed statement from one of the injured persons on 26-7-1958 at about 5-30 P.M. It is also stated that the First Information Report in the ease was registered at 9 P.M. on the same day by the Sub-Inspector of Police, Pudukad and the same was sent to the Special First Class Magistrate, Trichur. The deponent arrived at Varandarapiliy at 6 p.m. of the same day when he found that the Sub-Inspector had already made arrangements by removing the injured persons to the Van for being taken to the hospital.
26. It is further stated by the Circle Inspector that he inspected the scene and prepared a Mahazar for the 5 dead bodies as also for the places where they were found. The dead bodies were removed to the police outpost and kept under proper custody, The same night, the Circle Inspector questioned 4 witnesses. The sub-Inspector of police held the inquest over the dead bodies from 6 A.M. to 1-30 P.M. on 27-7-1958 and also prepared the scene Mahazar and also seized some M.Os. from the scene.
27. The Circle Inspector further states that on 27-7-58 between 8 A.M. and 9-50 A.M. he arrested 21 accused persons, searched their houses and questioned them. Search was also made of the office of the Communist Party and the I.N.T.U.C situato in the estate. The arrested persons were all produced before the Sub Divisional Magistrate, Trichur on 28-7-58 who remanded them to custody. The same day the Circle Inspector examined 5 prosecution witnesses and recorded their statements and also collected large number of material objects and further investigation was taken up by the Deputy Superintendent of Police, Crime Branch on the forenoon of 29-7-58. The respondents have filed a further counter affidavit with regard to the affidavit of the Circle inspector referred to above. In the said counter-affidavit, the respondents generally denied, all the statements made by the Circle Inspector.
According to them, the Circle Inspector has not conducted proper investigations into the cases where members of the Communist Party are involved. Therefore, in his jurisdiction there have been turbulent and violent activities by the Communists, most of which are the subject-matter of criminal cases. Reference is also made to the stopping and stoning of a car in which an ex-Chief Minister of Travancore-Cochin State and the General Secretary of the Kerala Pradesh Congress Committee and a member of Parliament of India and another were travelling. The learned Advocate-General has also filed two supplementary affidavits (1) by the Director of Public Relations regarding the circular issued by him and also referred to in the original counter-affidavit of the respondents and (2) by the Circle Inspector of Police, Ernakulam denying that the respondents' office was attacked by the crowd of Communists on 23-7-58.
To these 2 supplementary affidavits the respondents have again filed supplementary counter-affidavits controverting the statements made therein. We do not think it necessary at all to go into the truth or otherwise of those matters, because they are absolutely beyond the scope of the present proceedings, which is a very limited one. It will be seen from the extract of the defence of the respondents set out above, as contained in their joint counter-affidavit, that both the respondents take full liberty for the publication of the article in question. The position of the first respondent as the Editor and the second respondent as Publisher of the newspaper 'Kerala Prakasom' is accepted by them. Therefore, it is not necessary for us to consider in this case the position in law regarding the liability in such cases of an Editor and a Publisher of a newspaper.
In view of the fact that the respondents take full responsibility for the publication of the article, we do not think it necessary to refer to some of the decisions placed by the learned Advocate-General regarding the liability of an editor and publisher in such matters, because that question does not at all arise. The only question that arises is as to whether the article complained of tends to substantially interfere with the due course of justice or was calculated substantially to create prejudice in the public mind or in other words, whether the publication of the article amounts to 'contempt of Court' so as to warrant action being taken against the respondents.
28. The respondents were not represented by any counsel; and the first respondent argued the case himself, both for himself, and also on behalf of the second respondent. The second respondent also intimated to us that he has no different arguments to advance, and that he entirely accepts the stand taken by the first respondent and adopts all the contentions advanced by him. The counter-affidavit, in our opinion, refers to various matters, which aro not at all relevant for a decision of this application. But the main contention raised in the said counter-affidavit and argued before us by the respondents are :
(1) There has been inordinate delay in the filing of the application in this Court and the delay has not at all been satisfactorily accounted for;
(2) There was no proceeding pending before a Court on the date of the publication of this report, and as such, there is no contempt of Court;
(3) The article does not in any way tend to interfere with the due course of justice; and the intention in publishing the article was to see that culprits are brought before Court; and
(4) The article is only a reproduction of the report given by the police officers and that fact is also specifically stated in the report itself, and hence there is no contempt.
29. The learned Advocate-General who has appeared in support of this notice, has submitted that there has been no delay in the matter and even if there was a delay, it has been properly explained by the affidavits of the Home Secretary and the Inspector-General of Police. According to the learned Advocate-General, the affidavits filed in support of the application clearly show that the Inspector-General was taking the necessary steps immediately after he saw the report on 29-7-58 and in view of the fact that it is a matter of policy it was not possible for the Inspector-General himself to straightway take action on his own responsibility. He has clearly stated that owing to the absence of the Law, Minister, the matter could not be immediately deal with and after his return, discussions were had and the matters were forwarded to the Advocate-General for bringing the necessary facts to the notice of this Court.
30. Sri Mathai Manjuran contended that the explanation given by the Inspector-General and the Home Secretary cannot be accepted. He relied upon a decision of the Nagpur High Court reported in State Government M. P. v. Vinaya Kumar, AIR 1952 Nag 34. No doubt, in that case, the learned Judges (Bose, C. J. and Hemeon, J.) felt that the delay of 4 months and 10 days in that cases was not justified when action could have been taken much earlier. We are prepared to agree with the contentions of the first respondent that matters of this nature must be brought to the notice of this Court as early as possible, and as quickly as possible. The view of the learned Judges of the Nagpur High Court referred to by Mr. Mathai Manjuran is mainly based on the fact, that the delay in that case was not satisfactorily explained and also because the learned Judges were of the view that there was absolutely no impediment in that case for the matter being brought to the notice of the High Court, long earlier than the period of nearly 4 1/2 months actually taken in that case.
We do not understand the said decision to lay down any hard and fast rule as to the time within which such matters have to be brought to the notice of the Court, unless any rule has been framed specifying the period. In the absence of such a rule, the only requirement will be, that the matter must be brought to the notice of the Court as quickly as possible and if there is any inordinate delay, it must be properly explained. Therefore, we cannot accept the contention of Mr. Mathai Manjuran, that this application has to be rejected summarily, merely because it has been filed about 44 days after the publication of the report. From the affidavits filed by the Home Secretary and the Inspector-General of Police we are satisfied that it cannot be said in this case, that there has been any delay, much less inordinate delay in filing this present application. Therefore, the first contention raised by Mr. Mathai Manjuran is rejected,
31. According to the learned Advocate-General, it is not necessary that a proceeding before a Court should be actually pending at the time of the publication of the report. The learned Advocate-General also contended that the intention of the Publishers is absolutely immaterial, provided the article has a tendency to interfere with the due course of justice. On the merits the learned Advocate-General contended, that the article in question is not a mere report of what happened, but it proceeds on the assumption that certain persons belonging to a particular political party are guilty and that certain other persons are not guilty. The learned Advocate-General invited our attention to certain principles applicable to such matters as laid down in leading English and Indian decisions.
32. In Halsbury's Laws of England, 3rd Edition Vol. 8 at page 7 it is stated :
'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.'
At page 9 paragraph 11, the learned author again observes :
'and the opinion has been expressed that it is not necessary for a cause actually to be begun since, if it be imminent, it is possible 'very effectually to poison the fountain of justice before it begins to flow'.'
It is again observed at the same page :
'The question in all cases of comment on pending proceedings is not whether the publication doed interfere but whether it tends to interefere with the due course of justice'.
In Rex v. Parke, 1903-2 KB 432 at p. 436, Wills, J., delivering the judgment of the Court, observes as follows :
'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 apter description of such conduct than is conveyed by the expression 'contempt of Court'. If it be once grasped that such is the nature of the offence, what possible difference can it make whether the particular Court which is thus sought to be deprived of its independence, and its power of effecting the great end for which it is created, be at that moment in session or even actually constituted or not? It is perfectly certain that by law, it will, and must be constituted, and that when constituted, it and it alone can take cognizance of the particular offence which is the subject of the preliminary enquiry.'
In Rex v. Davies, 1906-1 KB 32 again Wills, J. refers with approval to the earlier decision referred to above, in the following words at page 35 :
'..... .We adhere to the view expressed in that ease that the publication of such articles is a contempt of the Court which ultimately tries the case after committal, although at the time when they are published it cannot be known whether there will be a committal or not. Their tendency is to poison the stream of justice in that Court, though at the time of their publication the stream had net reached it........'
Again as observed by Bowen, L. J., in Helmore v. Smith (2), 1886-35 Ch D 449 at p. 455 :
'The object of the discipline enforced by the Court in case of contempt of Court is not to vindicate the dignity of the Court or the person of the Judge, but to prevent undue interference with the administration of Justice'.
33. A Full Bench of the Cochin High Court consisting of Krishna Menon, C. J., Koshi, J. and Raman Menon, J. by a majority in the decision reported in Sirkar v. Kannan, ILR 37 Cochin 481, have held that there can be contempt of Court when proceedings are imminent but not yet launched. The learned Judges also held that whatever may be the intention of the person publishing a particular article in a newspaper if the publication is of such a nature, calculated to obstruct and interfere with the due course of justice, the party responsible for the publication will be guilty of contempt of Court.
34. In Tuljaram v. Governor, Reserve Bank of India, AIR 1939 Mad 257, a Full Bench of the Madras High Court has held that a comment on a case which is about to come before the Court, with the knowledge of the fact, is just as much a contempt as a comment on a case actually launched. In that case the matter had not actually come before the Court, and nevertheless the learned Judges held that a comment on a matter which is likely to come before the Court will amount to contempt. Support for this proposition was obtained by the learned Chief Justice who delivered the leading judgment in the following passage from the judgment of Wills, J. at page 437 in 1903-2 KB 432:
'Great stress has been laid by Mr. Danckwerts upon an expression which has been used in the judgment upon questions of this kind--that the remedy exists when there is a cause pending in the Court, We think undue importance has been attached to it. It is true that in very nearly all the cases which! have arisen there has been a cause actually begun, so that the expression, quite natural under the circumstances, accentuates the fact, not that the case has been begun, but that it is not at an end. That is the cardinal consideration. It is possible very effectually to poison the fountain of justice before it begins to flow. It is not possible to do so when the stream has ceased'.
35. Regarding the contention that the person in that case had a good intention in publishing the said article, the learned Chief Justice at page 259 observes as follows :
'......The intention of respondent 1 and the bona fide nature of his action have an important bearing on the question whether the Court should take action on the petition, but good intention is not the deciding factor in a matter of contempt. To comment on a case which is sub judice or to suggest that the Court should take a certain course in respect of a matter before it undoubtedly constitutes contempt and honesty of motive cannot remove it from this category. If this were to be allowed, persons in a position to assist the Court by their evidence might be prevented from coming forward, and persons appearing as witnesses might be influenced in their testimony. The criterion is not whether the Court will be influenced, but whether the action complained of is calculated to prejudice the course of justice .....,..'
The Court held that the respondents therein had no intention to commit contempt and accepted their apology. These observations extracted above, will also meet the contentions of Mr. Mathai Man-juran that the object of the respondents in publishing the said article was to focus public attention and exert public pressure on the Government to bring the culprits to trial, as there was an impression that Government will suppress the whole affair.
36. In Re, Subrahmanian. AIR 1943 Lah 329 (FB) at page 335, the learned Chief Justice delivering the judgment of the Full Bench observes as follows:
'......Further it now seems clear that the offence of contempt may be committed even if there is no proceeding or cause actually pending provided that such a proceeding or cause is imminent and that the writer of the offending publication either knew it to be imminent or should have known that it was imminent. .......'
The learned Chief Justice expressed approval with a similar view taken by the Madras High Court in the Full Bench decision reported in AIR 1939 Mad 257, and referred to earlier in the following words at page 335 :
'.......I respectfully agree with the opinion expressed in the Madras Full Bench case that proceedings need not actually be pending and that it is sufficient that proceedings are imminent to the knowledge of the person charged with contempt. It is also clear that a person may be guilty of contempt thought there was no intention to commit contempt. It is sufficient if the effect of the article complained of is to create prejudice and to interfere with the due? course of justice. In the present case I can see no ground for holding that the opposite parties or any of them had any intention to commit contempt but that is not essential......'
The Full Bench decisions of the Madras anal Lahore High Courts referred to above, also lay down that a person may be guilty of contempt, though, there was no intention to commit contempt and that it is also not necessary that the article must have actually influenced any Court. It is enough if the effect of the article complained of is such as tends to create prejudice or to interfere with the due course of justice. They also lay down that a cause need not be actually pending in a Court; it is enough if a cause is imminent.
37. In the decision reported in State v. Radhagobinda, AIR 1954 Orissa 1, the learned Chief Justice and Mohapatra, J., observe at page 3 as follows:
'.......the intention or motive of the contemner is not essential, if really the writing has a tendency, or, in other words, is calculated to impede the- fair trial of the case'.
Again on the same page it is observed :
'Good motive or intention for a publication' which is in contempt of Court does in no way purge the contempt. The test is not if one intended to prejudice the case but if the words themselves tend to interfere with the due course of justice and calculated to prejudice the public or the Court'.
Again at page 3 the learned Judges observe :
'......If a person making a publication, or responsible for the act, which is likely to interfere with the fair trial, of the case, is aware- that a proceeding is imminent, then the offence is complete and it is not essential that the case must be pending .......'
Reference is made again in this decision to 1903-2 KB 432. The Full Bench decision of the Madras High Court in AIR 1939 Mad 257 and also the Full Bench decision of the Lahore High Court in AIR 1943 Lah 329 are quoted with approval by the learned Judges and the learned Judges finally conclude at page 4 as follows :
'.......Respectfully agreeing with the two Full Bench decisions referred to above we are of the view that pendency of proceedings is not essential if the proceedings are imminent to the knowledge of the contemner'.
The same view has again been expressed by the-Orissa High Court in the decision reported in The State v. Editor Etc., (S) AIR 1955 Orissa 36, by Narasimham and Misra, JJ. That the intention of the party publishing the article has no bearing on the question as to whether the publication is in contempt of Court or not, is again laid down in Sunnulal v. Yeshwantsingh, AIR 1951 Madh-B 98, by Shinde and Abdul Hakim Khan, JJ. and by the Nagpur High Court in Wasudeorao v. Copal. AIR 1951 Nag 368, consisting of Hemeon, Acting Chief Justice and Mudholkar J.
38. The above decisions clearly show (1) that the intention of a party in publishing the article has no bearing on the question as to whether the article amounts to a contempt of Court or not: (2) that the article need not necessarily have influenced the Court. It is enough if the matter published and complained of tended substantially to interfere with the due course of justice or was calculated substantially to create prejudice in the public mind; and (3) that it is not necessary that a matter should be actually pending before the Court; it is enough if the cause was imminent.
39. These decisions dispose of the second and third contentions of Mr. Mathai Manjuran based on the ground that no proceedings were pending before the Courts when the publication in question was made and he had a good intention, in publishing, Wa have shown when considering these decisions, that it is not necessary that proceedings must be actually pending when the publication was made and we have also held that it is enough if the cause is imminent and intention has no bearing. In this case, even the publication itself clearly shows that the investigation by the police has started almost immediately after the occurrence and arrests of persons have also been made. We are also satisfied about the truth of the matters contained in the affidavit of Sri Velukutty Nair, Circle Inspector of Police filed by the learned Advocate-General.
It is clear from the affidavit that investigation has been taken up by the police and Crime No. 105 of 1958 has also been registered on 26-7-58 itself and a report also has been submitted to the Special First Class Magistrate, Trichur. Though the respondents filed a supplementary counter-affidavit challenging the general allegations contained in the affidavit of Sri Velukutty Nair, they have not, in effect controverted the statements contained in the affidavit of Velukutty Nair.
They have only made a general allegation that the said Circle Inspector is a Communist partisan. Taking the matters mentioned in the counter-affidavit of the respondents themselves along with the affidavit of Sri Velukutty Nair, Circle Inspector of Police, Trichur during the relevant time, we are satisfied that a cause was imminent as against the persons responsible for the occurrence. It was at that time that the publication has been made. What they say in their counter-affidavit is that the publication was in order to bring pressure upon the public to agitate regarding this matter.
The occurrence has taken place on the 26th July and in view of the prompt investigation started by the police immediately thereafter, it is too much for the respondents to say that on the date of the publication of the report namely, within 3 days of the occurrence, no cause regarding that occurrence before the court was imminent. In fact, the statements contained in the report itself show that the respondents must have also known that a trial of the culprits for the occurrence was imminent.
40. We are also satisfied that the article as published, does tend to interfere with the course of justice. It is not a mere report as to what is stated to have happened at Varandaropilly on 26-7-1958. The report goes further and expresses the opinion of the respondents that persons belonging to one particular political group are the offenders who are responsible for the occurrence and that the other? are not guilty. As stated earlier, the question is not whether the publication actually influenced any court. In our opinion, the article is such as tends substantially to interfere with the due course of justice or is one calculated substantially to create prejudice in the public mind.
41. Mr. Mathai Manjuran very strenuously relied upon the decision of the Allahabad High Court reported in Dwarka Prasad v. Krishna Chandra, AIR 1953 All 600 to the effect that contempt proceedings cannot be taken in connection with the publication of articles, as long as a criminal case is only during the course of investigation, and has not actually come to the Magistrate's Court for inquiry or trial and that nobody should be punished for contempt in respect of cases which are only imminent. We are free to admit that this decision supports the contention of the respondents. The learned Judges have referred to the various oilier decisions, already referred to by us in the earlier portion of the judgment, and have either not followed or distinguished those decisions. We may also say that this decision of the Allahabad High Court has not been accepted by the Orissa High Court in the decision reported in (S) AIR 1955 Orissa 36 and referred to earlier.
It is also seen, that even in the Allahabad High Court, this decision appears to be doubted, as will be seen from the decision reported in Rajendra Kumar Garg v. Ahmad Azad, AIR 1957 All 37. In view- of the various decisions already referred to which are all to the effect that to constitute contempt it is not necessary that a cause must be pending before a court and that it is enough if the cause is imminent, with great respect to the learned Judges of the Allahabad High Court who decided in AIR 1953 All 600, we regret, it is not possible for us to follow the said decision. We prefer to follow the Full Bench decisions of the Madras and Lahore High Courts referred to above as also the two decisions of the Orissa High Court and the Cochin High Court mentioned earlier, as also the principles laid down in the English decisions, already referred to.
42. Mr. Mathai Manjuran referred us to the latest decision or Rajagopalan and Ramachandra 3yyar, JJ., reported in Ramaswamy v. Jawaharlal, AIR 1958 Mad 558 and also to the decision of the Allahabad High Court in State v. Faquir Chand, AIR 1957 All 657 to the effect that, before the respondents are convicted, it must be proved that the offending matter was published by the respondents with the knowledge of the pending cause. It is not really necessary for us to consider the scope of those decisions in this case, because we have already held that it is not necessary for a cause to be actually pending before action can be taken for contempt or court.
In fact, even the decision relied upon by Mr. Mathai Manjuran namely, AIR 1957 All 657 is also to the effect that action can he taken, if the offending matter was published with the knowledge that the cause was imminent. We have already discussed this matter and held that the respondents, even on their own statements in the article and also in the counter-affidavits, must be clearly held to be aware that a trial before a court of law was imminent in view of the seriousness of the occurrence and in view of the investigation already started by the police. Therefore the 2nd and 3rd contentions of the respondents also fail.
43. Lastly, Mr. Mathai Manjuran contended that the report, as published, was one given to the press by the police officer. In fact, the report itself clearly shows that it has been given by the Police Officer. This aspect has been raised by the respondents in paragraph 14 of their counter-affidavit to the effect that the impugned report was given out by a police officer, to the press and it has been so stated in the article itself. It is also stated that the entire report is a report that was published by the police and released to the press and that the report is only a reproduction of the already published police report about the occurrence. On the basis of this, Mr. Mathai Manjuran contended that the publication of the article by the respondents, in consequence of the report given to them by the police, cannot amount to a contempt.
After the filing of this counter-affidavit by the respondents, there were some further affidavits filed. On behalf of the petitioner. In fact, the learned Advocate-General has filed an affidavit of the Circle Inspector of Police, Trichur regarding the steps taken in the direction of investigating this occurrence. But curiously, we do not find anything in the supplementary affidavits filed on behalf of the petitioner, in repudiation of this allegation contained in paragraph 14 of the counter-affidavit of the respondents. We put a direct question to the learned Advocate-General during the course of the arguments as to whether he is prepared to accept the statements contained in paragraph 14 of the counter-affdavit as correct.
He admitted very frankly that the said allegations have not been, in so many words, controverted by the supplementary affidavits filed on behalf of the petitioner. But nevertheless, the learned Advocate-General stated that he does not accept that statement as correct. In the alternative, the learned Advocate-General also contended, that even if such a report had been given by the police, the publication of such a report by the respondents will not take it away from the category of contempt of court. In our opinion, the facts mentioned in paragraph 14 of the counter-affidavit will not, in Jaw, help the respondents, and the alternative argument of the Advocate-General must prevail,
44. In the Full Bench decisions reported in AIR 1939 Mad 257 it will be seen that the Editors of the various newspapers before the learned Judges, who had been hauled up for contempt, had submitted that the article they had published was only a letter received by the Madras Government from the Governor of the Reserve Bank and released by the Madras Government to the Press and they also expressed unconditional apology. The learned Judges held the first respondent therein the Governor of the Reserve Bank guilty of contempt of court in writing, the letter. In consequence of this, the learned Judges held that the editors of each of the papers was also guilty of contempt in the following words:
'As the publication of letter of respondent 1 constitutes contempt of court, the editor of each paper in which it appeared, must be deemed to share in the contempt.'
45. But this aspect of the matter was taken by the learned Judges in accepting the unconditional apology tendered by the Editors of the newspapers in that case. Therefore, the last contention of Mr. Mathai Manjuran also fails. In our opinion, the respondents are guilty of contempt of court in publishing the article, which is the subject of consideration before us, as it tends substantially to interfere with the due course of justice and was calculated substantially to create prejudice in the mind of the public. Both the respondents, have no doubt, taken complete responsibility for the publication of the article in question.
They have also taken the stand in paragraph 14 of the counter-affidavit that the report is one given to the press for publication by the police officers. Though the learned Advocate-General stated that He does not accept this statement to be correct, we have no other alternative but to proceed on the basis that the statements contained in paragraph 14 of the counter-affidavit of the respondents must be taken to be prima facie correct, especially, when those statements have not been controverted in any of the affidavits filed on behalf of the petitioner, subsequent to the counter-affidavit in question. We are entitled to take that into account in awarding the punishment. In our opinion, some distinction must also be made between the first respondent and the second respondent, because the second respondent is one who appears to be only acting under the directions of the first respondent.
Taking all these circumstances into account, we sentence the first respondent to pay a fine of Rs. 100/- and in default of payment or fine, to undergo Simple Imprisonment for a term of one month. We, sentence the second respondent to pay a fine of Rs. 50/- and in fault of payment of fine, to undergo Simple Imprisonment for 15 days. There will be no order as to costs in this petition.
(Here follows an annexure in Malyalam Scriptwhich is not necessary for the purposes of this report-Ed.)