1. This is a Rule on the Editor, Publisher and Printer of the Calcutta Weekly Notes, a well-known law journal now in the 52nd year of its publication, calling on them to show cause why they should not be committed or otherwise dealt with for alleged contempt of Court in respect of the publication of an article in the issue of the paper dated 21-4-1947.
2. The proceeding was commenced on a report made to this Court by the Chief Presidency Magistrate of Calcutta, Mr. W.J. Palmer, I.C.S., by his letter Ro. 1408 dated 5-5-1947, calling our attention to the following passage in the said article which appeared in the second column on page xcii as editorial comment:
On top of this, came the other day news of armed police men breaking into a house in the heart of the city - premises No. 100, Harrison - Road be labouring all and sundry, arresting whoever they did not perhaps like the look of, and raping a married woman. The excuse for this barbarous intrusion, after the curfew order, into a house inhabited by a large number of citizens, was that a cracker had burst near the point where the police picket was posted.
3. Mr. Palmer stated that it appeared to him that this paragraph clearly amounted to contempt of Court, as it stated that the alleged occurrence had actually taken place, a fact which was strongly denied by the defence. According to him, the report in question was likely to prejudice the trial of a case which he was at present enquiring into under the Code of Criminal Procedure, and which ho said he intended to commit to the High Court Sessions if a prima facie case was disclosed. The case was one in which two Police Constables named Md. Ali and Golam Hossain were alleged to have raped a married woman at 100, Harrison Road on 14-4-1947.
4. Mr. Palmer pointed out in his letter that the accused had not been actually arrested and sent up until 22nd April, that is to say, the day following the publication, but he added that the matter had been under Police investigation before that, and 'it was obvious that a case would in all probability be started.' The Chief Presidency Magistrate went on to say:
There are, I believe, reported decisions to show that contempt of Court is committed in such cases by publishing reports which are likely to prejudice the trial of the matter at issue.
Explaining how the trial was likely to be prejudiced in this case, Mr. Palmer made the following observations in the concluding paragraph of his letter:
It seems to me that as the alleged offence is triable by a jury, publications of this kind stating positively that the accused were guilty or at least that an offence has been committed will have the effect of making it very difficult for the accused to expect a fair trial.
5. In these circumstances, the learned Magistrate deemed it his duty to report the matter to this Court, and there can be little doubt that he did so, though he does not mention it in his letter, in view of the provisions of the Contempt of Courts Act (12 [XII] of 1926), which gives power to the High Court to punish contempts of subordinate Courts.
6. By direction of the Hon'ble the Chief Justice, the letter was placed before two of us who were sitting on the Criminal Bench to consider whether a Rule should issue, and on 9fch May we issued the present Rule. We directed that a copy of the Chief Presidency Magistrate's letter should be served on the respondents along with notice of the Rule, and we also directed notice to be given to the Advocate-General of Bengal.
7. The present Bench was thereafter constituted by his Lordship the Chief Justice to hear the Rule. At the hearing before us, the parties-were represented by their respective counsel, while Mr. K.P. Khaitan, Standing Counsel, appeared on behalf of the Advocate-General of Bengal as amicus curies.
8. As Mr. Palmer himself points out, the offending matter was published before the accused in the case before him were arrested and sent up, though police investigation had already started. The first question, therefore, which arises is, whether the writing can be regarded as a comment on a pending proceeding so as to constitute contempt of Court as tending or likely to obstruct or interfere with the due course of justice. It is not suggested that the contempt, if any, in this case is contempt of any other kind.
9. As a general rule, it may be laid down the essence of the offence in this class of cases is that proceedings should be pending when the offending publication appears, but the question as to from what stage and up to what stage a proceeding will be deemed to be pending for the purposes of this rule, has been the subject-matter of considerable discussion. We are indebted to the learned Standing Counsel for a very full and fair presentation of the law on the point,, which, be it noted, even learned Counsel for the respondents did not attempt to improve upon, but it is not necessary for us to enter upon a detailed discussion of the eases to which our attention was drawn. Among the English cases cited by Mr. Khaitan, it is sufficient to refer to the following : R. v. Parke (1903) 2 K.B. 432; R. v. Daily Mirror; Exparte Smith (1927) 1 K.B. 845; R. v. Clerk; Ex parte Crippen (1910) 103 L.T. 636 and R. v. Davies; Ex parte Delbert Evans (1945) 1 K.B. 435. As regards Indian cases, learned Counsel referred among others to the Full Bench decisions in Tuljaram Rao v. Sir James Taylor 26 A.I.R. 1939 Mad. 257 and In re Subrahmanyan ('43) 30 A.I.R. 1943 Lah. 329 and to the cases in Supdt. and Remembrancer of Legal Affairs, Bihar v. Murali Manohar Prasad 28 A.I.R. 1941 Pat. 185 and Emperor v. Mahashe Khushal Chand ('45) 32 A.I.R. 1945 Lah. 206. Mr. Khaitan also referred us to the statement of the law in Halsbury's Laws of England (Hailsham edition), Vol. 7, page 9, Article 11, and Oswald on Contempt (3rd Edn. 1910), page 97. Our attention was not drawn to any Calcutta decision dealing with this particular point.
10. It seems to be now fairly well settled that in criminal cases, for a proceeding to be pending, so as to give jurisdiction to punish for contempt, it is not necessary that the accused should be committed for trial or even brought before a Magistrate : it would be sufficient if he had been arrested and was in custody. Whether jurisdiction can arise even before that stage is not so clear. In R. v. Clerk; Ex parte Crippen (1910) 103 L.T. 636 repelling an extreme contention in the opposite direction to the effect that no proceeding is pending, if it be a criminal matter, until after the person charged has not only been arrested but has been put into the dock and a criminal charge preferred against him, Darling J., delivering the judgment of the King's Bench Division, expressed himself thus:
I do not mean to say that the laying of the information alone, coupled with the granting of the warrant, would not have been quite sufficient,
This is as far as one can find a Judge in an English Court going to extend jurisdiction in contempt in respect of comments on pending proceedings in criminal cases. But it will be observed that not only is the view expressed in a negative form, but the learned Judge himself says that it is mere obiter:
I am not going to say a word to prejudge that case : it has not arisen, but may some day arise.
The facts on which judgment was given in the case in favour of the Court's jurisdiction were that there was not only an information laid on oath and then the issue of a warrant by a Magistrate (a judicial act), but also arrest and custody upon the warrant, though the accused had not been brought before the Magistrate and a formal charge made. It would not be safe, therefore, to stretch the decision beyond what it actually decides as to whether a proceeding in a criminal case may b6 supposed to begin even before arrest and custody.
11. As the cases will show, an attempt has sometimes been made to avoid this difficulty by recourse to another doctrine, namely, that for the purpose of attracting the Court's jurisdiction in such cases, it is not necessary that a proceeding should be actually pending, but it should be sufficient if proceedings were imminent and the person charged with contempt had knowledge of the fact. Support for this theory is sought to be found in a passage from the judgment of Wills J. in R. v. Parke (1903) 2 K.B. 432 which runs as follows:
Great stress has been laid by Mr. Danckwerts upon an expression which has been used in the judgments 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,
Then follows a statement which is supposed to lay down the principle applicable in such cases:
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.
It will be seen from the facts of the case that there the stream had already begun to flow in the Petty Sessions Court where the accused had been brought up on a charge of forgery, and remanded, and the question was whether the High Court had jurisdiction to commit for contempt in respect of a publication which admittedly took place after that date, merely because at the time of the publication the accused had not yet been committed for trial, the offence charged being an indictable offence triable only at the assizes.
12. The question whether there may be contempt o Court when proceedings are imminent but have not yet been launched did not, therefore, strictly arise in R. v. Parke (1903) 2 K.B. 432, any more than in the later case in R. v. Daily Mirror; Exparte Smith (1927) 1 K.B. 845, where Lord Hewart C.J., quoted the above passage from the judgment of Wills J., emphasising all the same in no uncertain terms that the question was one which the Court was not called upon to decide, though 'some day that question may have to be decided.' It does not appear that that day has still arrived so far as English Courts are concerned.
13. In India, however, there are at least two Full Benches which have not only considered but pronounced upon this question. These are the two decisions to which Mr. Khaitan has referred Tuljaram Rao v. Sir James Taylor 26 A.I.R. 1939 Mad. 257 and In re Subrahmanyan ('43) 30 A.I.R. 1943 Lah. 329 and the decision in either of these cases was rested on the two English cases R. v. Parke (1903) 2 K.B. 432 and R. v. Daily Mirror; Exparte Smith (1927) 1 K.B. 845 referred to above. In the Madras case, Leach C.J., delivering the judgment of the Court, observed that to comment on a case which is about to come before the Court with knowledge of the fact is just as much a contempt as comment on a case actually launched. In the Lahore case, Harries C.J., expressed his agreement with this opinion in so many words, observing
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.
In another part of the judgment, the learned Chief Justice, however, used words which might suggest a further extension of the doctrine by making not merely knowledge, but also reasonable grounds for believing that proceedings are imminent, sufficient.
14. Be that as it may, it seems to be the cage that whatever uncertainty there may still exist on the question whether the offence of contempt may be committed by a publication at a time when proceedings are imminent, but not yet begun, there is not a single decision, English or Indian, which has gone the length of holding that the offence may be committed even if the alleged offender had no knowledge or had no reasonable grounds for believing that proceedings were about to be launched. So to hold would in our judgment be an unwarrantable extension of the law of contempt in such cases.
15. Turning to the facts of the present case, we may state at once that there is nothing before us to show that the respondents knew or should have known that a proceeding was about to be started in connection with the alleged Harrison Road incident. The learned Chief Presidency Magistrate, after referring to the fact that the matter was under police investigation from before the date of arrest, no doubt states that 'it was obvious that a case would in all probability be started.' Giving the fullest effect to this statement, we are still unable to hold that this is sufficient to prove either actual knowledge of or reasonable grounds for believing in the imminence of any criminal proceedings. On the other hand, we have the affidavits of the respondents that none of them was at all aware or had any grounds for believing that any proceeding was pending or was about to be instituted in respect of the said incident. We fully accept their statements. We are also satisfied from the affidavit filed on behalf of the editor that not only had he had no such knowledge or belief at the time of the writing or the publication of the article complained of, but that the real object was to press upon the Government the urgent necessity of taking steps to bring the alleged culprits to trial. From the various instances referred to in the affidavit, we cannot say that there was much to encourage the hope or belief that Government would take any action, not to speak of prompt action. It is further pointed out in this connection that while the allegations in the newspapers in respect of the Harrison Road affair included charges not only of rape but of other offences, such as robbery, assaults, etc., the actual arrest of the ,two policemen was only for the offence of rape. We do not think, therefore, that by publishing the article in the Calcutta Weekly Notes on 2lst April without any knowledge of the fact which was announced only on the following day by the Chief Minister in the Bengal Legislative Council that the two poilcemen had been arrested and would be sent up for trial, and without any reasonable grounds to believe that this had been or would be done, either the editor or the printer or the publisher can be held to have committed any contempt of Court.
16. In this view of the matter, it is not necessary to consider whether the article or the particular passage complained of would have amounted to contempt of Court, if it had appeared after the proceedings had commenced before the Chief Presidency Magistrate. Speaking for myself, I must, however, point out that there is absolutely no justification for the view expressed by Mr. Palmer that there was any statement made, 'positively' or otherwise, that the alleged occurrence had actually taken place or that the accused were guilty. It will be seen that the reference to the Harrison Road incident in the article was made only as statement of a news item, the actual words used being, 'on top of this came the other day news of armed policemen, etc.' There was no statement or suggestion that the news was well-founded.
17. The result is that in our opinion no case has been made out against the respondents, and the Rule must be discharged, and we order accordingly.
18. I agree. I would only add that while I accept that the writer's bona fide object was to press that proceedings should be taken against any person who after an enquiry ought to be sent up for trial and to that extent I accept that some of the matters referred to in the affidavits moved, in the opinion of the writer, justified his anxiety and fear that proceedings would not be taken. I certainly dissociate myself from any implied criticism of alleged acts or omissions of the Government. We are not in possession of sufficient material nor is it proper for us either in these proceedings to express any opinion on the matter. I also am unable to accept the criticism of Mr. Palmer's letter in so far as my learned brother is of opinion that the article in substance and in fact would not be a clear contempt had there been pending proceedings. Not only is there mention that news had come of the incident at 100 Harrison Road but a number of a very offensive terms are used about the police in the alleged proceedings and later in the article a very clear and emphatic statement that 'armed thugs dressed in cynical authority have unfettered licence to break at will into decent Calcutta homes and satisfy their bestial lust.'
19. The writer of such a comment in my opinion is not in a position to say that it is not assumed that the incident at 100, Harrison Road had, in fact, taken place.
20. On the matter of the law on contempt, I would like to add a reference to the case in King v. Davies (1906) 1 K.B. 32. The judgment was delivered by Wills J. who also has delivered the much discussed judgment in R. v. Parke (1903) 2 K.B. 432. It illustrates what was the principle that was-being investigated in the two cases. In R. v. Parke (1903) 2 K.B. 432 the question was whether a superior Court had jurisdiction to punish for contempt or proceedings in the lower Court or what we would call in the committing Court. In King v. Davies (1906) 1 K.B. 32 a further difficulty arose in that the proceedings in the committing Court might, according to the circumstances, have been committed for trial to Quarter Sessions instead of to the Assizes, so that some of the reasons given in R. v. Parke (1903) 2 K.B. 432 for holding that the superior Court had power to punish would not apply in that case. I would also add what, I think, has been made sufficiently clear by my learned brother, that in R. v. Clerk; Ex parte Crippen (1910) 103 L.T. 636 which is quoted as an authority that custody and knowledge of custody or imminence of proceedings is a sufficient element to give rise to proceedings for contempt, it was emphasised that the custody was on a warrant issued by a Magistrate on a sworn information and the newspaper concerned certainly had knowledge of the facts because it had itself published previously news of the arrest of Crippen in Quebec. When it is said that there was knowledge in that case that proceedings were imminent, it has to be taken in the light of this context. In the particular case there had been a Magistrate's warrant and arrest under the Feudatory Offenders Act. It followed inevitably that Crippen would be placed before the Magistrate who had issued the warrant. Knowledge of the proceedings and knowledge that they were imminent was therefore clear, and the imminence was of a very certain character.
In the circumstances in which the article appears to have been published I agree in the order which has been made.