1. On 21st March 1935, a speech was made in the Legislative Council of Bengal by Mr. N.K. Basu in which an attack was made upon the Chief Justice and Judges of this Court. On 23rd March this speech was reported in the Amrit Bazar Patrika, a newspaper having a large circulation in Calcutta and other parts of Bengal. In the same issue of the newspaper a leader appeared headed 'Calcutta High Court'. After reading the said leader which was formally brought to the notice of the Judges of this Court upon an affidavit sworn by Mr. Collet, the Registrar of this Court on its Original Side, I, on 28th March after consultation with the Judges of the Court, directed that a rule should issue upon the Editor (Tushar Kanti Ghose) and the Printer and Publisher (Tarit Kanti Biswas) ordering that the two said persons should show cause before this Court, on 5th April, why they should not be committed or otherwise dealt with according to law for contempt of Court alleged to have been committed by them in having unlawfully published in the said issue of the said newspaper the article mentioned. The printer and publisher was served with the rule on 29th March, but the Editor could not be served, because of his absence from Calcutta, until the 1st April. In the meantime, in its issue of 30th March the Amrita Bazar Patrika published the salient parts of the rule (except the leader) in the paper. On 1st April, Mr. Collet applied to a Bench of this Court consisting of Costello, J., and myself for leave to serve notice of motion of less than four days. Such leave was granted, although in my view it was not necessary, lest any question should arise as regards the length of service later. The Editor was served on 1st April. On the following day an application was made by Mr. Biswas on behalf of the Editor that the returnable date for the Rule be made 8th April, but this was refused by the Bench consisting of Costello, J., and myself. At the hearing of the said application by Mr. Biswas I mentioned that the Amrita Bazar Patrika had published the rule as aforesaid in its issue of 30th March and this was not denied by Mr. Biswas. Mr. Biswas stated that he did not intend to raise any question as to validity of service. On the same day, 2nd April, permission was asked on behalf of the Editor that Sir Tej Bahadur Sapru, an advocate practising in the Allahabad High Court, should be granted permission to appear for the Editor. Such permission was granted by me.
2. The affidavit of Mr. Collet, the Rule and the copy of the Amrita Bazar Patrika of Saturday, 23rd March, are before the Court, as also are affidavits of the Editor and the Printer and Publisher which were filed and delivered to the Court on 4th April. No objection has been taken to the length of notice; and from the affidavits filed by the respondents it is clear that they have had ample time in which to prepare their reply. The matter came on for hearing before a Full Bench of this Court consisting of myself, Mukerji, J., Costello, J., Lort-Williams, J., and Jack, J., on 5th April, when the Editor was represented by Sir Tej Bahadur Sapru and Mr. C.C. Biswas, whilst the Printer and Publisher was represented by Mr. S.N. Banerjee and Mr. S.C. Mitter.
3. The first part of the leading article referred to, reads as follows:
We are glad to find that in the Bengal Legislative Council yesterday there was a discussion about administration of the Calcutta High Court. Every word of Mr. N.K. Basu was true. It is so unfortunate and regrettable that at the present day the Chief Justice and the Judges find a peculiar delight in hobnobbing with the Executive, with the result that the judiciary is robbed of its independence which at one time attracted the admiration of the whole country. The old order of things has vanished away. We wish the Chief Justice and the Judges appreciate the sentiments of the public. The generation that has gone by should be an ideal to them.
4. The rest of the article is concerned with matters which this Court does not think necessary to take note of. At the hearing, at a very early stage, I requested Sir Tej Bahadur Sapru to give his attention to the words: 'It is so unfortunate... the admiration of the whole country.'
5. Sir Tej Bahadur argued that the article as a whole was not a contempt of Court, or if one, only a technical contempt not obstructing the course of justice, nor interfering with any trial and that the construction most favourable to the respondents should be placed upon it. He then proceeded to argue that having regard to the nature of the article, the Court had no jurisdiction to take this summary procedure; that if it did amount to contempt, the proper procedure was by way of information under Section 194, Criminal P. C; that other legal remedies were open to this Court to protect its honour; and that the Law Member, Sir B.L. Mitter, had in the Legislative. Council vindicated the Court. With regard to the proceedings in the Legislative Council, this Court cannot take any action. With regard to the words, 'Every word of Mr. N.K. Basu was true', the Court decided to take no action upon them as it considered that the subsequent words reflecting on the Chief Justice and the Judges and their independence were far more serious. As regards the contention that Section 194, Criminal P.C., provided the proper remedy, this section reads as follows:
(1) The High Court may take cognizance of any offence upon a commitment made to it in manner hereinafter provided. Nothing herein contained shall be deemed to affect the provisions of any Letters Patent granted under the High Courts Act, 1861, or any other provisions of this Code. (2)(a) Notwithstanding anything in this Code contained, the Advocate-General may, with the previous sanction of the Governor-General in Council or the Local Government exhibit to the High Court, against persons subject to the jurisdiction of the High Court, informations for all purposes for which Her Majesty's Attorney General may exhibit informations on behalf of the Crown in the High Court of Justice in England. (b) Such proceedings may be taken upon every such information as may lawfully be taken in the case of similar informations filed by Her Majesty's Attorney General so far as the circumstances of the case and the practice and procedure of the said High Court will admit.
6. The rest of the section is not relevant. It will be noticed that for any proceedings under Section 194, Criminal P.C., to be taken, the sanction of the Governor-General or the Local Government is necessary. In previous cases of contempt of Court it has been the practice of this Court to issue a rule upon its own motion-see the case of Surendra Nath Banerjee v. Chief Justice and Judges of Calcutta High Court (1884) 10 Cal 109, where a libel was published concerning one of the Judges regarding his conduct in a case which had concluded, and this Court acted by way of a rule and summary procedure. The respondent contended that he ought to be proceeded against under the provisions of the Penal Code and the Criminal Procedure Code, but this Court took the view that summary procedure was the proper procedure and on a consideration of the matter in the Privy Council it was held that this procedure was correct. The same point was also taken in In the matter of the Amrita Bazar Patrika, 1918 Cal 988-and overruled-see per Ashutosh Mukerjee, J. at pp. 541-542. That the summary jurisdiction in respect of a contempt of this Court which is a Court of Record does exist and has been exercised is beyond all question. It was then argued by Sir Tej Bahadur Sapru that the words complained of could be no contempt of Court because they did not refer to any case which has been heard or is pending; also that contempt of Court proceedings for scandalizing the Court itself had become obsolete. The latter contention was based upon the remarks of Lord Morris in McLeod v. St. Aubyn (1899) AC 549, at p. 561, which says:
It (i.e. the summary process for contempt by scandalising the Court) is a summary process, and should be used only from a sense of duty and under the pressure of public necessity; for there can be no landmarks pointing out the boundaries in all cases. Committals for contempt of Court by scandalising the Court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement of proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.
7. Now this is not a case of a small colony consisting of coloured populations and we must therefore examine Lord Morris' words that committals for contempt of Court by scandalising the Court itself have become obsolete in England in the list of subsequent events. The year following the decision of McLeod v. St. Aubyn (1899) AC 549, the case of Reg v. Gray (1900) 2 QB 36, came before a Court in England consisting of the Lord Chief Justice (Lord Russell) and two other Judges. A journalist had written scandalous matters of a Judge at the Birmingham Assizes in connection with his words in Court. He wrote them after the case was over but before the Assizes had concluded. It was held that this was a contempt of Court. Gray apologized to the Court for his contempt and was fined 100 and ordered to pay 25 costs. Lord Russell said that but for the apology the Court would have thought it its duty to send him to prison for a not inconsiderable period of time (p. 41).
8. That case was reported in the Law Reports and a footnote states that it is being reported as showing that in England a Court will still, where circumstances demand its action, exercise its jurisdiction to punish by summary process a contempt by scandalising the Court, although no contempt has been committed exfacie of the Court or in respect of a case pending. Reg v. Gray (1900) 2 QB 36 was followed by the present Lord Chief Justice (Lord Hewart) in 1928 in Rex v. Editor of the New Statesman (1928) 44 TLR 301, where the summing up of the Judge in a libel action was commented upon and it was said that an individual holding views of Dr. Stopes on birth-control cannot apparently hope for a fair hearing in a Court presided over by Avory, J., and there are many Avorys.
9. It was held that the respondent was guilty of contempt, but as he had apologised, he was ordered merely to pay the whole costs of the proceedings. Lord Hewart in his judgment said:
Mr. Jowitt (Counsel for respondent) in his extremely able argument had used from time to time phrases beginning with a conditional clause: If on the fair meaning of the words, they mean so and so; then he expressed apology. In the Court's opinion there was no room for these conditional clauses. The words meant that in the opinion of the writer it was impossible for a person holding certain views to get a fair hearing before that Judge. If the expressions had ended with these conditions, it would have been necessary to take a very serious view of the matter, but before the end that which had been conditional and reserved became unconditional and unreserved and indeed was in that form in Mr. Sharpe's affidavit.
10. That such is the law in India is clear from the judgment of Ashutosh Mukerjee, J., in In the matter of the Amrita Bazar Patrika,1918 Cal 988 at p. 543, where the learned Judge says as regards the remarks of Lord Morris in McLeod v. St. Aubyn (1899) AC 549:
I do not read the statement that committals for contempts of Courts by scandalising the Court itself had become obsolete in England, as destructive of the authority of the earlier decisions on the subject. Indeed, the proposition taken literally seems to go too far and it is significant that, in the very next year, proceedings were taken in England for contempt of Court in the case of Reg v. Gray (1900) 2 QB 36. There can I think be no doubt that where the circumstances clearly demand action of this description, the Court will not hesitate to exercise its undoubted power to punish on summary process the contempt of scandalising it and thereby attempting to interfere with the due course of justice.
11. There can be no question therefore that the right to punish by summary procedure contempts of Court by scandalising the Court still exists. As regards the contention that there can be no contempt of Court except in respect of a case which has been heard or is pending, I am unable to accept this proposition. In Reg v. Gray (1900) 2 QB 36 at page 40, Lord Russell said:
Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which Lord Hardwicks, L.C., characterised as 'scandalising a Court or a Judge.' That description of that class of contempt is to be taken subject to one and an important qualification. Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court. The law ought not to be astute in such cases to criticise adversely what under such circumstances and with such an object is published; but it is to be remembered that in this matter the liberty of the press is no greater and no less than the liberty of every subject of the Queen. Now, as I have said, no one has suggested that this is not a contempt of Court, and nobody has suggested, or could suggest, that it falls within the right of public criticism in the sense I have described. It is not criticism; I repeat that it is personal scurrilous abuse of a Judge as a Judge. We have therefore to deal with it as a case of contempt and we have to deal with it brevi manu. This is not a new-fangled jurisdiction; it is a jurisdiction as old as the common law itself, of which it forms part. It is a jurisdiction the history, purpose and extent of which are admirably treated in the opinion of Wilmot, C.J. (then Wilmot, J.) in his Opinions and Judgments, in Rex v. Almon (1765) Wilmot's Opinions 243.
12. Judgment was never delivered in Rex v. Almon (1765) Wilmot's Opinions 243, but the judgment written by Wilmot, C.J., was published some years afterwards and has been approved as just shown by the Chief Justice in Reg v. Gray (1900) 2 QB 36 and in many other cases including In the matter of the Amrita Bazar Patrika,1918 Cal 988 in 1917 by Ashutosh Mukerji, J., at p. 539. Wilmot's opinion was discussed and approved by Wills, J., in Rex v. Davies (1906) 1 KB 32, at p. 41, where the question was raised as to whether inferior Courts in England should be protected by the High Court against interference in their proceedings by comments in the press. At p. 40 Wills, J., says:
And a considerable part of the undelivered judgment of Wilmot, C.J., to which we have referred is devoted to showing that the real offence is the wrong done to the public by weakening the authority and influence of a tribunal which exists for their good alone. He adds that such conduct is pre-eminently the proper subject of summary jurisdiction. Attacks upon the Judges, he says, excite in the minds or the people a general dissatisfaction with all judicial determinations... and whenever men's allegiance to the laws is so fundamentally shaken, it is the most fatal and dangerous obstruction of justice, and in my opinion calls outs for a more rapid and immediate redress than any other obstruction whatsoever, not for the sake of the judges as private individuals, but because they are the channels by which the King's justice is conveyed to the people. To be impartial and to be universally thought so are both absolutely necessary for giving justice that free, open, and unimpaired current which it has for many ages found all over this kingdom.
13. I will now turn to the words complained of and consider what is their ordinary meaning. They consist of two allegations: (1) that the Chief Justice and Judges take a peculiar delight in hobnobbing with the Executive; and (2) with the result that the judiciary is robbed of its independence which at one time attracted the admiration of the whole country. The word 'hobnobbing' is defined in dictionaries as 'drinking with or being on familiar terms with.' If the first allegation had stood alone, it would be scurrilous abuse with a suggestion which might or might not have been contempt of Court; but when the words follow: 'with the result the judiciary is robbed of its independence which at one time attracted the admiration of the whole country' the words beyond doubt make a very serious allegation upon the Chief Justice and Judges of this Court in their judicial capacities.
14. The plain inference is that the Chief Justice and Judges by their conduct have put themselves in a position in which they cannot exercise their judicial functions with independent minds; that they lean towards the Executive in matters coming before them in which the Executive may be interested; and that they are no longer capable of doing even-handed and impartial justice according to law. In this Court there are at all times cases being tried or waiting to be tried in which the Crown through some branch of the Executive is interested, either as a prosecutor or a litigant, and the inference is that in these cases the Chief Justice and the Judges cannot do even-handed and impartial justice. This Court has, and I trust always will have, the deserved reputation of doing even-handed and impartial justice. Once the impression is created in the minds of the public that the Chief Justice and the Judges of this Court are not independent, and that they lean towards the. Executive and that consequently in matters in which the Crown is concerned either as prosecutor or litigant, the case of the prisoner or accused or the opposite party cannot or will not be heard and determined solely according to the evidence and the law, the confidence of the whole community in the administration of justice in this province of Bengal will be undermined. No greater public mischief than that can be possible. Such words are in my view clearly within the definition of contempt by scandalising as enunciated by Lord Russell in Reg v. Gray (1900) 2 QB 36 and are clearly within the definition given by Wilmot, C.J.
15. In the course of his argument Sir Tej Bahadur Sapru cited a book on contempt of Court by Sir John Charles Fox in which the opinion expressed by Wilmot, C.J., in Wilmot's Opinions Rex v. Davies (1906) 1 KB 32 was attacked and alleged to be not historically accurate. That same opinion had previously been published by Mr. Fox, as he then was, in the Law Quarterly Review Vol. 24, pp. 184 and 266. That opinion was quoted in In the matter of the Amrita Bazar Patrika,1918 Cal 988 and was dealt with by Ashutosh Mukerji, J., at p. 541 as follows:
I am not unmindful that a learned writer (Mr. John Charles Fox in the Law Quarterly Review Vol. 24, pp. 184 and 266) has maintained the view that the opinion expressed by Wilmot, C.J., in Rex v. Almon (1765) Wilmot's Opinions 243 is not historically accurate. Let us assume that this criticism is well-established on the ancient authorities, and that while originally the superior Courts of Common Law had jurisdiction to punish only disobedience to the King's writ summarily by fine and imprisonment upon attachment, they had jurisdiction only on indictment or bill to punish contempts in facts and other obstructions to the administration of justice such as libelling the Court or the Judge. Let us assume also that the development of the summary jurisdiction to punish contempts has been of slow growth and that the earliest recorded case of libel or slander on the Court or a Judge by a stranger unconnected with the service of process, which was punished summarily by attachment, cannot be traced to a period anterior to 1720. Surely this cannot but be regarded now as a matter of other than antiquarian interest. We have abundant 'competent authority' 'not irreconcilable to clear legal principle' in support of the view that a superior Court of Record does possess the power to punish summarily contempts of Courts of the description now before us. Sir Barnes Peacock, C.J. maintained and applied this principle in Re Abdool and Mahtab (1867) 8 WR Cr 32 and Re William Taylor (1869) 1918 Cal 713 which upon a full review of the authorities was reaffirmed in Legal Remembrancer v. Matilal Ghose, 1914 Cal 69. We have also the pronouncement of the Judicial Committee to the same effect in McDermott v. Judges of British Guiana (1868) 2 PC 341, where they confirmed the view indicated in the earlier cases of Smith v. Justice of Sierra Leone (1841) 3 Moo PC 361 and Rainy v. Justices of Sierra Leone (1852-53) 8 Moo PC 47. As regards the power of Indian High Courts, in a case of this character, we have, two decisions by the Judicial Committee namely, Surendra Nath Banerjee v. Chief Justice and Judges of Calcutta High Court (1884) 10 Cal 109 and Re Sarbadhicary (1906) 29 All 95. In the former case it was ruled that the High Court had power to punish in a summary manner, by fine or imprisonment or both, a contempt of Court, which, in that case, as in the present, consisted in the publication out of Court of a libel on one or more of the Judges. In the latter case, the Judicial Committee held that there was no doubt that the publication of the libel in question constituted a contempt of Court, which might have been dealt with by the High Court in a summary manner, by a fine or imprisonment or both. In my opinion, these repeated pronouncements by the Judicial Committee conclude the matter, so far as 'competent authority' is concerned, and no useful purpose can be served by an examination of the historical basis of the opinion expressed by Wilmot, C.J.
16. I have given attention to the arguments of the learned advocates appearing for both the editor and the printer to the effect that these words are reasonable criticism and fair comment on a matter of public interest. To be fair comment they must have some basis in fact. These allegations are untrue. The words used are intemperate 'taking peculiar delight in hobnobbing; the judiciary is robbed of its independence.' Such words are not
reasonable argument or expostulation offered against any judicial act as contrary to law or the public good
such as no Court could or would treat as contempt (to use the words of Russell, C.J., in Reg v. Gray (1900) 2 QB 36 p. 40), but are definite allegations that the Court has lost its independence. It is argued that the words
which at one time attracted the admiration of the whole country. The old order of things has vanished. We wish the Chief Justice and Judges appreciate the sentiments of the public. The generation that has gone by should be an ideal to them
show that the article was no more than a sincere attempt to draw the attention of the Judges to a matter of public concern. I do not accept that view. It seems to me that the addition of the subsequent words was a device intended to give the writer some plausible way out of his difficulties if he found himself in trouble by reason of the words he had written previously. 'Whether that view is correct or not I find nothing in the rest of the article, either as regards the words preceding or following those complained of, which make them any the less a contempt of Court. Mr. Banerji suggested that the words were a criticism of the administration of the Court, not of its judicial work. If so, how could the judiciary be said to be robbed of its independence? Further it was the independence of the judiciary, not the independence of the administration of the Court 'which at one time attracted the attention of the whole country.' The whole country might know of the judiciary of the Court, but it could hardly know of the administrative side of the Court which is of much lesser importance. With regard to the contention that it is not contempt of Court because it has not arisen out of any case which has been heard or a case pending, it must be remembered that there are at all times many cases pending in this Court in which the executive in some branch or other is concerned. Such cases both on the criminal and civil sides of the Court are day in day out being tried or waiting to be tried. On this point Ashutosh Mukerjee, J., in In the matter of the Amrita Bazar Patrika,1918 Cal 988, says at p. 540:
From this standpoint, it is immaterial whether the attack on the Judge is with reference to a cause about to be tried, or actually under trial, or recently adjudged; in each instance, the tendency is to poison the fountain of justice, to create distrust, and to destroy the confidence of the people in the Courts, which are of prime importance to them in the protection of their rights and liberties.
17. It seems to me to be as much a contempt of Court to say that the judiciary has lost its independence by reason of something it is alleged to have done out of Court, as to say that as a result of a case it has decided, it is clear that it has no independence or has lost what it had. I am therefore of opinion that the words complained of were a contempt of Court. With regard to the argument that these proceedings, summary in nature, were not the appropriate proceedings, and that the appreciate course would have been to lay an information against the respondents and have the matter tried in a criminal Court; if these words are a contempt of Court, and I have held that they are, then the Court has jurisdiction to deal with them in the usual way in which contempts are dealt with, namely by summary procedure. This is a contempt which, in my view, unless dealt with speedily, is likely to produce the gravest results as regards respect for law in this province, since it is calculated to undermine the confidence of the public in the administration of justice. No instance of a case of this kind being dealt with by way of information or indictment in modern times was brought to our notice by the respondents' advocates and I have not been able to find any. My view is that taken by Wills, J., in Rex v. Davies (1906) 1 KB 32:
The undoubted possible recourse to indictment or criminal information is too dilatory and too inconvenient to afford any Satisfactory remedy. It is true that the summary remedy, with its consequent withdrawal of the offence from the cognizance of a jury, is not to be resorted to if the ordinary methods of prosecution can satisfactorily accomplish the desired result, namely to put an efficient and timely check upon such mal practices. But they do not. Wilmot, C.J., said: 'I am as great a friend to trials of facts by a jury, and would step as far to support them as any judge who ever did or now does sit in Westminister Hall, but if to deter men from offering any indignities to Courts of Justice, it in a part of the legal system of justice in this kingdom that the Court should call upon the delinquents to answer for such indignities, in a summary manner by attachment, we are as bound to execute this part of the system as any other.'
18. Mr. Justice Ashutosh Mukerji in In the matter of the Amrita Bazar Patrika,1918 Cal 988 said:
No doubt, as Lord Morris observes in McLeod v. St. Aubyn (1899) AC 549 at p. 661, Courts may be satisfied sometimes to leave to public opinion attacks or comments derogatory or scandalous to them. But I do not accede to the argument that it is invariably prudent for the Court to assume an attitude of indifference or to institute regular criminal proceedings against the offender. In this connexion reference may appropriately be made to the weighty words of Kent, C.J., in an American case, Yates v. Lansing (1810) 5 Johnson 282: 'Whenever we subject the established Courts of the land to the degradation of private prosecution, we subdue their importance and destroy their authority. Instead of being venerable before the public, they become contemptible; and we thereby embolden the licentious to trample upon everything sacred in society and to overthrow those institutions which have hitherto been deemed the best guardians of civil liberty.'
19. These were the words used by Ashutosh Mukerji, J., 18 years ago in a contempt of Court case in this Court. For the above reasons I hold that the words complained of are properly dealt with by this summary procedure. I am further of the opinion that it was and is our duty in our administration of justice in this province to proceed in this summary manner to deal with the matter. Towards the end of the case an opportunity was given by the Court to each of the respondents, through their advocates, to tender an apology. The advocate for each respondent replied that he had his instructions and had nothing further to say. No apology was offered. The Editor, Tushar Kanti Ghose, in his affidavit (para. 4) says that he had not seen the article before publication but takes full responsibility for the same. He also says in para. 5 that the article was written by way of reasonable criticizm and fair comment on the basis of the reports of the Legislative Council and refers to certain annexures to the affidavit. I have perused the annexures but I cannot see how they would help either of the respondents in any way if indeed they were relevant. The Editor further says that the object is to guard the reputation possessed by this Court. As regard this plea, I can only say that to attack the Judges of the Court in the way they have been attacked in the words complained of cannot in any way guard the reputation of the Court; on the contrary it is bound to undermine it. As to the other matters raised in the affidavit I have dealt with them in the above judgment.
20. The Printer, Tarit Kanti Biswas, says in his affidavit that he is only imperfectly acquainted with the English language and as printer has no control over the insertion of any matter in the columns of the newspaper; that his knowledge of the English language is very limited and in the course of his duties he has got to take any orders from the editorial and managerial staff of the paper. He also says that he had no intention to show any disrespect to the Chief Justice and Judges and he denies that he had committed any contempt of Court. I am bound to say that it is an unfortunate state of affairs if the official printer of newspapers printed in English has only an imperfect acquaintance with the English language. He, like the Editor, has a duty to see that a contempt of Court is not committed by the paper he prints and publishes. The printer further craves leave to refer to the Editor's affidavit as part of his affidavit, and by so doing adopts the Editor's attitude. The Editor in his affidavit took responsibility for the article. In my judgment the words of the article complained of with or without the preceding and succeeding words are a contempt of this Court and in my judgment Tushar Kanti Ghosh and Tarit Kanti Biswas should be adjudged to be guilty of contempt of Court in respect of the publishing of the same.
21. This rule has been issued on Tushar Kanti Ghosh, the Editor, and Tarit Kanti Biswas, the Printer and Publisher of a newspaper called the 'Amrita Bazar Patrika,' to show cause why they should not be dealt with in accordance with law for publishing in that newspaper of 23rd March 1935, an article on the Calcutta High Court. The article is headed 'Calcutta High Court.' It consists of two paragraphs. In para. 1 reference was made to a discussion which was said to have taken place the day before in the Bengal Legislature Council about the administration of the Calcutta High Court. Then it was said that every word of Mr. N.K. Basu who, it may be mentioned here, was one of the speakers in that discussion, was true. Then appeared the following passage:
It is so unfortunate and regrettable that at the present day the Chief Justice and the Judges find a peculiar delight in hobnobbing with the Executive with the result the judiciary is robbed of its independence which at one time attracted the admiration of the whole country.
22. Then it was said:
The old order of things has vanished. We wish the Chief Justice and the Judges will appreciate the sentiments o the public. The generation that has gone by should be an ideal to them.
23. In para. 2 some suggestions were made as regards the principles to be adopted in the recruitment of Judges, and later on it was said:
Really good men with practical experience would consolidate that pleasant feeling of the public towards the High Court and would help in its efficient administration.
24. Lower down the following passage occurs:
If the powers-that-be deliberately and systematically ride roughshod over the feelings of the public, a time would soon come when things will be beyond all redemption and their mistakes will be beyond all repair.
25. The opposite parties hate appeared in this case and have filed affidavits in answer to the Rule. The Editor in his affidavit has said that the article was not written by him and that though in fact he had not seen it before publication yet he took full responsibility therefor as Editor of the said newspaper. He has said further that the object of the said article was to guard the reputation possessed by the Honourable Court ever since its establishment. And it has been submitted that the said article on a fair reading of it does not constitute any contempt of this Honourable Court, nor was it written with a view to bring this Honourable Court or the Hon'ble the Chief Justice and Judge3 into contempt. The Printer and Publisher in his affidavit has stated that he draws a salary of Rs. 110 per month, that he is imperfectly acquainted with the English language, that as Printer he has no control over the insertion of any matter in the columns of the newspaper, but in the course of his duties he has got to take any orders from the editorial and the managerial staff regarding matters to be inserted. He has said further that in printing the article he had no intention to show any disrespect to the Hon'ble the Chief Justice or any of the Judges of this Honourable Court.
26. Almost at the commencement of the hearing of this case, it was pointed out by the Court that the portion of the article, to which attention should be confined for the purposes of this case, is contained in the following words:
It is so unfortunate and regrettable that at the present day the Chief Justice and the Judges find a peculiar delight in hobnobbing with the Executive with the result the judiciary is robbed of its independence which at one time attracted the admiration of the whole country.
27. Sir Tej Bahadur Sapru appearing on behalf of the Editor and Mr. Banerjee appearing on behalf of the Printer and Publisher have endeavoured to make out that the word 'administration,' which appears in the first sentence with which the article opens, plainly indicates that the writer was dealing with the subject of administration of the Calcutta High Court in the sense of the administrative supervision that it exercises over subordinate Courts. It has also been argued that the articles expressed the sentiments of the public and wanted the Judges to appreciate them because it was the duty of a newspaper to call attention to the sentiment of the public with regard to the administration of the High Court.
28. It has also been said that the Editor probably was taking a wrong and exaggerated view of public sentiment but that the reputation of the Court was so profound that the passage like the one in the article could not possibly undermine the confidence of the public in its independence and integrity. It has also been said that the word 'hobnobbing' was used in the sense of eating and drinking together, or, in other words, of cultivating social intercourse and that although it may have been a very silly thing to have referred to such conduct on the part of the Chief Justice and the Judges and to have said that the judiciary is robbed of its independence, the writer only intended to say that in the eye of the public the reputation of the Court was suffering. I have given this passage the very best consideration that I possibly can, but I am unable to accept the interpretation that has thus been sought to be put upon it. I am clearly of opinion that the word 'administration' that is to be found in the first sentence of the article has not been used in the sense of such administrative superintendence as the High Court exercises over its subordinate Courts but that the word means the administration of the Court itself including the administration of the justice which the Court purports to deal out. That, in my opinion, is made plain by the passage that follows, in which 'hobnobbing' is referred to and then the result of the 'hobnobbing' is also spoken of, namely that the judiciary is robbed of its independence. The word 'hobnobbing' as far as I have been able to gather has three different meanings: It primarily means 'to drink to each other alternatively', 'to take wine with each other with clinking of glasses'; its secondary meaning is to be in terms of familiar social intercourse'; and it is popularly understood in the sense 'of having the honour and so to feel such honour of being on familiar terms' or in other words, 'mixing freely in a cringing spirit with a view to curry favour'. I am inclined to the view that the word has been used in the last-mentioned sense; for, it is by taking the word in that sense only that the result that is referred to in the passage is easily appreciated. I think that it is only if the word is taken in that sense that the independence of the judiciary, not only of this Court but also of all Courts subordinate to it, can be expected to be affected. I am, however, prepared to concede that the word is capable of the other meanings, which are the meanings which the opposite parties desire to attribute to it. But whichever of the meanings be taken, there is, in my opinion, no difference in the result. The passage obviously constitutes a libel on the Chief Justice and the Judges of this Court; and inasmuch as it is a libel on them in their judicial capacity it amounts to contempt of Court. At the same time I am clearly of opinion that such contempt of Court, even though the Court may have power to deal with it summarily, is not a species of contempt which should be so dealt with. For summary proceedings in the matter of a contempt of this character there is no precedent whatsoever except a solitary decision given quite recently by one of the High Courts in this country. From that decision I shall take the liberty to respectfully differ.
29. I leave the article for the present but will have to refer to it again towards the close of this judgment for the purpose of making certain observations in connection with it. Inasmuch as in taking the view aforesaid I am differing from the weighty opinion of the other members of this Bench, I propose to give my reasons somewhat fully.
30. What is contempt of Court? Lord Blackburn in Skipworth's case (1873) 9 QB 230 said: 'The phrase 'contempt of Court' often misleads persons, not lawyers'. And Lindley, L.J., in O'Shea v. O'Shea and Parnell (1890) 15 PD 59 observed: 'There are obviously contempts and contempts; there is an ambiguity in the words'. It is very necessary, therefore, to ascertain the exact significance of the expression 'contempt of Court'.
31. In St. James's Evening Post Case, Roach v. Garvan, (or Hall) (1742) 2 Atk 469 cited under different sub nom in different reports, Lord Hardwicke, L.C., gave a classical classification of contempts. He said:
There are three different sorts of contempt One kind of contempt is scandalising the Court itself. There may likewise be a contempt of this Court in abusing parties who are concerned in causes here. There may be also a contempt of this Court in prejudicing mankind against persons before the cause is heard. There cannot be anything of greater consequence than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters.
32. In Birch v. Walsh (1846) 10 Ir Eq Rule 93 Cusack Smith M.S., in discussing the law of contempt, observed that cases in which Courts of Equity exercise the authority of committing parties for contempt of Court might be divided into three classes. The following is an extract from the judgment in that case:
The first class may be described in the language of an eminent person, afterwards on the English Bench, thus: 'where the Court which issues the attachment has awarded some process, given some judgment, made some legal order or done some act, which the party, against whom it issues, or others on whom it is binding, have either neglected to obey, contumaciously refused to submit to, incited others to defeat by artifice or force, or treated with terms of contumely or disrespect in the face of the Court, or of its Minister charged with the execution of its acts'. There may be some other cases of a similar nature falling within this class, although not exactly within the above description; and it is clear that a Court of Equity, as well as every other Court, must be entrusted with power to enforce its orders. The second class of cases, in which Courts of equity have exercised the jurisdiction of committing for contempt, are those in which letters or pamphlets have been addressed to the Judge who had to decide upon the case, with the intention either by threats or flattery or bribery, to influence his decisions... The third class of cases in which Courts of Equity have committed for contempt are those adverted to by Lord Erskine in the case Ex parte Jones, the inference of an intention to obstruct the course of justice.
33. He pointed out that in the second of these three classes of cases there is a direct attempt to taint the source of justice and to obtain a result of legal proceedings different from that which would follow in the ordinary course, and that the third class, namely constructive contempt, depends upon the inference of an intention to obstruct the course of justice. He placed contempt in scandalising the Court itself in the third category, viz. that of constructive contempt. Libelling the Court is contempt of the Court because it is either intended to obstruct or tends to obstruct the course of justice. In Holt on Libel there is a discourse on libel on the Court in which it has been very clearly explained how such libel would tend to the disgrace of the justice of the realm and so amount to contempt. In St. James's Evening Post Case, Roach v. Garvan, (or Hall) (1742) 2 Atk 469, Lord Hardwicke, L.C. pointed out the distinction between libel against the public or private persons and libel which amounts to contempt of Court, observing thus:
But to be sure, Mr. Solicitor-General has put it upon the right footing that notwithstanding this should be a libel, yet unless it is a contempt of Court, I have no cognisance of it; for whether it is a libel against the public or private persons the only method is to proceed at law.
34. In 1765 one Almon was brought up before the King's Bench for publishing a pamphlet containing libellous passages upon the Court of King's Bench and Lord Mansfield, C.J., for his conduct both in Court and out of it and charging the Court, particularly the Chief Justice, with having introduced a method of proceeding to deprive the subject of the benefit of the Habeas Corpus. Wilmot, J., as he then was (he afterwards became Chief Justice of the Common Pleas) drew up an opinion on the case which was never delivered in Court because the proceedings were eventually dropped. But after his death this opinion was published in 1802, some 37 years later and has since been referred to in numerous decisions of every high authority. The following is an extract from that opinion:
But it is said that the course of justice in those cases is obstructed, and the obstruction must be instantly removed; that there is no such necessity in the case of libels upon the Courts or Judges which may wait for the ordinary method of prosecution without any inconvenience whatsoever. But when the nature of the offence of libelling Judges for what they do in their judicial capacities, either in Court or out of Court, comes to be considered, it does, in my opinion, become more proper for an attachment than any other case whatsoever. By our constitution, the King is the fountain of every species of justice which is administered in this kingdon: 12 Co. 25. The King is de jure to distribute justice to all his subjects, and because he cannot do it himself to all persons he delegates his powers to his Judges who have the/custody and the guard of the King's oath and sit in the seat of the King concerning his justice.
The arraignment of the justice of the Judges is arraigning the King's justice; it is an impeachment of his wisdom and goodness in the choice of his Judges and excites in the minds of the people a general dissatisfaction with all judicial determinations, and in disposes their minds to obey them; and whenever men's allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsoever, not for the sake of the Judges, as private individuals, but because they are the channels by which the King's justice is conveyed to the people. To be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open, and uninterrupted current, which it has, for many ages, found all over this Kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth. In the moral estimation o the offence, and in every public consequence arising from it, what an infinite disproportion is there between speaking contumelious words of the rules of the Court, for which attachments are granted constantly, and coolly and deliberately printing the most virulent and malignant scandal which fancy could suggest upon the Judges themselves. It seems to be material to fix the ideas of the words 'authority' and 'contempt of the Court,' to speak with precision, upon the question.
By the word 'Court,' I mean the Judges who constitute it and who are entrusted by the constitution with a portion of jurisdiction defined and marked out by the common law, or Acts of Parliament. 'Contempt of the Court' involves two ideas: contempt of their power and contempt of their authority. The word 'authority' is frequently Used to express both the right of declaring the law which is properly called jurisdiction and of enforcing obedience to it, in which sense it is equivalent to the word power; but by the word 'authority' I do not mean that coercive power of the Judges, but the deference and respect which is paid to them and their acts, from an opinion of their justice and integrity.
Livy uses it according to my idea of the word, in his character of Evender: 'authoritate magisquam imperio pollebat'; it is not 'imperium'; it is not the coercieve power of the Court, but it is homage and obedience rendered to the Court, from opinion of the qualities of the Judges who compose it; it is a confidence in their wisdom and integrity, that the power they have is applied to the purpose for which it was deposited in their hands; that authority acts as the great auxiliary to their power and for that reason the constitution gives them this compedious mode of proceeding against all who shall endeavour to impair and abate it, and therefore every instance of an attachment for contumelious words spoken of a rule of the Court (of which there are great many) is a case in point to warrant an attachment in the present case, where a rule of Court is the object of defamation, and it would be a very strange thing that Judges, acting in the King's Supreme Court of Justice in Westminster Hall should not be under the same protection as a bailiff's follower, executing the process which those Judges issue; it is not their own cause but the cause of the public which they are vindicating, at the instance of the public, for I do not think that Courts of Justice are to take their complaints up of themselves, it must be left to His Majesty who sustains the person of the public to determine whether the offence merits a public notice and animadversion; and in this state of the proceedings they are only putting the complaint into a mode of trial, where the parties' own oath will acquit him, and in that respect it is certainly a more favourable trial than any other, for he cannot be convicted if he is innocent, which by false evidence he may be by a jury; and if he cannot acquit himself, he is but just in the same situation as he would be in, if he was convicted upon an indictment or upon an information; for the Court must set the punishment in one case as well as the other, they do not try him in either case, he tries himself in one case and the jury try him in the other.
35. The opinion of Wilmot, J., has been referred to with approval by very eminent Judges and in numerous cases: by Holroyd, J., in Rex v. Clement (1821) 4 Barn & Ald 218, by Lord Lyndhurst, L.C., in Ex parte Van Sandau (1844) De Gex 55; by Lord Esher, M.R. and Bowen, L.J., in In re. Johnson (1887) 20 QBD 68; by Lord Russel of Killowen, C.J., in Reg v. Gray (1900) 2 QB 36; and many others. It is true that a learned author, Sir Charles Fox in his History of Contempt of Court has endeavoured to show that the opinion of Wilmot, C.J., in Rex v. Almon (1765) Wilmot's Opinions 243 is not historically accurate. Also it is a fact that Fletcher, J., in Taaffe v. Dowries (1818) 13 ER 15 note, decided in the Irish C.P. in 1813, and reported in a note in 13 E.R. 15, but without the judgment of Fletcher, J., a copy of which is said to be in the Inner Temple Library (vide, Halsbury's Law of England (1909) Vol. 7, para. 604 Note (d), denounced the opinion in most scathing terms. In that case the question that was considered was whether the Chief Justice of the King's Bench in Chambers granting a warrant to arrest a party for a breach of the peace was protected from liability to action on the ground that the act was a judicial one. Fletcher, J. refused to be bound by the opinion of Wilmot, C.J., in Rex v. Almon (1765) Wilmot's Opinions 243 pronouncing it to be
the hasty and warm ebullition of a mind fraught with arbitrary notions, irritated and excited by a severe attack upon his whole Court, especially upon his venerated and adored Chief Justice, and the very reverse of what is called a considered, digested and ulterior opinion.
36. But the weight of approval which the said opinion has received is overwhelming and it is too late now to reject it as a mere opinion, and as not having the force of a delivered judgment. At the same time it should be noted that the opinion should be regarded as of any real value only in so far as it was relevant for the decisions in which it has been approved. As regards points not arising in the cases themselves, actual decisions even if made upon such points would have been but mere obiter dicta; and by approvingly referring to the opinion as a whole the decisions cannot be regarded as having conferred any authoritative character on such points in the opinion as had no bearing on the cases themselves. The decisions, as I shall presently proceed to show, are in respect of cases which in their facts were essentially different from the case now before us. I am not unaware that Mookerjee, J., in his judgment in In the matter of the Amrita Bazar Patrika,1918 Cal 988 at p. 538 has referred to the passage in the opinion which has been quoted above and also to the celebrated passage in Blackstone's Commentaries (Vol. 4, p. 25) in which he includes in his description of contempts of Court, contempts which arise
by speaking or writing contemptuously of the Court or Judges acting in their judicial capacity and which demonstrate a gross want of that regard and respect which, when once Courts of Justice are deprived of their authority, so necessary for the good order of the Kingdom, is entirely lost amongst the people.
37. But to my mind it is perfectly clear that the learned Judge was only considering the question whether the article which formed the subject-matter of that case amounted to contempt of Court and not the question whether every species of contempt, whatever its exact nature may be, was to be dealt with summarily. The reference that he made, vide In the matter of the Amrita Bazar Patrika,1918 Cal 988, at p. 539, to Howell's State Trials, Vols. 3 and 8, confirms me in this view that I take. In my opinion, therefore, there is yet room for the contention that the objectionable passage, amounting though it does to a libel on this Court, is one which this Court has no jurisdiction to deal with in a summary manner. But I think I am on a more firm and sure ground when I say that there having been no proof that such jurisdiction has ever been exercised in a case of the present nature, this Court should not proceed to exercise such jurisdiction in the present case, even if it has any. I am unable to assent to the view that every form of contempt of Court is to be dealt with in the summary form. The embarrassing situation in which the Court itself is placed when it adopts that procedure is apparent; and the disadvantages that it causes to the party brought up before the Court to be dealt with, precluding him from taking a plea and depriving him of his defence, are obvious. These are no technical considerations but very serious considerations indeed. And unless the Court is sure that such a procedure has ever been adopted in any case similar in nature to the one before it, or the Court feels that no other efficient remedy is really available, the Court cannot justify its summary action in any given case.
38. Lord Blackburn in Skipworth's case (1873) 9 QB 230 has clearly explained that it is a misapprehension to suppose that a proceeding for contempt of Court amounts to some process of vindicating the personal dignity of the Judges and protecting them from personal insults as individuals; that very often it happens that contempt is committed by a personal attack upon a Judge or an insult offered to him, but as far as their dignity as individuals is concerned, it is of very subordinate importance compared with the vindication of the dignity of the Court itself. He has pointed out that there would scarcely be a case in which any Judge would consider that so far as his personal dignity goes, it would be worth while to take any steps. He has then explained that the other and important purpose for which proceedings for contempt of Court is necessary-or in other words the vindication of the dignity of the Court become imperative-is where there is a case pending before the Court and the act of the delinquent has a tendency to obstruct the ordinary course of justice or prejudice the trial. In many cases since then as well as before, the question has turned on the term 'pending.' And I confess that I can see very little of relevancy or necessity of the discussions in those cases if the general remarks to be found in Wilmot, C.J.'s opinion are to be taken as concluding the question. Mookerjee, J., in his decision in In the matter of the Amrita Bazar Patrika,1918 Cal 988 at p. 540 has said:
It is a public wrong, a crime against the State, to undertake by libel or slander on the Judges, to impair confidence in the administration of justice.... It is immaterial whether the attack on the Judge is with reference to a cause about to be tried, or actually under trial, or recently adjudged: in each instance the tendency is to poison the fountain of justice, to create distrust and to destroy the confidence of the people in the Courts, which are of prime importance to them in the protection of their rights and liberties: Reg v. Gray (1900) 2 QB 36.
39. The case before the learned Judge himself as well as the case which he quoted as an authority in the passage just mentioned were both cases in which the libel was in respect of specific cases, one about to come up for decision and the other just disposed of. No case of the present nature was, I venture to think, in the mind of the learned Judge. The learned Judge cited the celebrated passage of Lord Denman in his speech in Connell v. The Queen (1844) 11 Cl & F 155 at pp. 372 and 373 relating to 'law taken for granted', and held that there was nothing 'irreconcilable to some clear legal principles' to hold that the Superior Courts have power to deal summarily with contempts. That is undoubtedly correct, if I may presume to say so. But I think it is a clear contravention of the fundamental rights of an accused to be regularly tried to deal with him summarily if no real urgency to resort to a summary procedure is disclosed. Vindication of the dignity of the Court apart from any question of a tendency to obstruct justice or prejudice a trial in connexion with any particular case has never been considered in any decision as justifying summary proceedings in contempt. It is this actual interference with justice which is involved in contempt of Court with regard to which Courts have chosen to take action in summary proceedings. And when action is so taken the manner in which the Judges should deal with the matter has been explained by Lord O'Brien, L.C.J., in King v. Freeman's Journal (1902) 2 Ir Rep 82 in these words:
Of course Judges are very reluctant to deal with matters which may affect themselves, but they must be very careful not to yield to contrivances, resorted to in order to disqualify and get rid of them. At the same time if a. Judge in the infliction of punishment acts vindictively because he has been assailed, he should, indeed feel degraded, because in that case he would not only have done what was wrong, but he would have betrayed his own manliness as an individual and his dignity as a Judge
40. As regards the power to proceed by attachment in cases of contempt, which according to Hold and Gilbert and other writers took its rise from the Statute of Westminister, Ch. 2. Wilmot, J., in his opinion in Rex v. Almon (1765) Wilmot's Opinions 243 observed:
I have examined very carefully to see if I could find out any vestiges or traces of its introduction but can find none. It is as ancient as any other part of the Common law; there is no priority or posteriority to be discovered about it and therefore cannot be said to invade the Common law but to act in an alliance and friendly conjunction with every provision which the wisdom of our ancestors has established for the general good of society.
41. But in Halsbury's Laws of England Vol. 7, p. 6 note (h), after referring to Wilmot, C. J's., opinion in Rex v. Almon (1765) Wilmot's Opinions 243 in support of the proposition that the issuing of attachment by the Supreme Court of Justice for contempts out of Court is founded upon the same immemorial usage as supports the whole fabric of Common Law, it is thus observed:
It is clear however that in early times some forms of contempt out of Court were punished not by summary process but in the ordinary course of law.
42. In Stephen's Commentaries on the Laws of England, Vol. 4, under the heading Contempt of Court, it has been said:
And the King's Bench Division of the High Court of Justice as the inheritor of the powers of the old Court of King's Bench has an inherent authority to punish such acts by attachment for contempt of Court; whereupon the offender is consigned to prison during the pleasure of the Court.
43. The jurisdiction of the High Court to imprison for contempt is a jurisdiction that it has inherited from the Old Supreme Court and was conferred upon that Court by Crown Charters which invested it with all the powers and authority of the then Court of King's Bench and the High Court of Chancery in Great Britain: Martin v. Lawrence (1879) 4 Cal 655. And in Surendra Nath Banerjee v. Chief Justice and Judges of Calcutta High Court (1884) 10 Cal 109, the Judicial Committee held that a libel which was a contempt of Court published out of Court when the Court was not sitting was an offence which by the Common Law of England was punishable by the High Court in a summary manner by fine or imprisonment or both, that part of the Common Law of England was introduced into the presidency towns when the late Supreme Courts were respectively established by the Charters of Justice and that the High Courts in the presidencies are superior Courts of Record and the offence of contempt and the powers of the High Court for punishing it are the same in India as in England not by virtue of the Penal Code of British India and the Code of Criminal Procedure, but by virtue of the Common Law of England.
44. The distinction between criminal and non-criminal contempt need not detain us; there may oftentimes be a difficulty on finding first authority for deciding where the line is to be drawn, and secondly, instances in practice for drawing it; yet that line has always been recognised: see per Lord Brougham L.C. in Wellesley v. Duke of Baufort (1831) 2 Russ & M 639. But I take it that the general principles which should guide Courts in the matter of the exercise or non-exercise of the summary jurisdiction cannot and ought not to differ, no matter what particular division or jurisdiction such Courts may be sitting to deal with or exercise, unless it be that it is only the dignity of the Court that is to be regarded-a proposition which cannot be supported. The object of the discipline enforced by the Court in case of contempt of Court, says Bowen, L.J., 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: Helmore v. Smith (1886) 35 Ch D 449. The object of the power to punish summarily is protective and admonitory; the reason of the Court's jurisdiction to commit for contempt is not for the protection of the dignity of the Court or of its individual members but for the protection of the public, though it may be and often is that the public are to be protected by the upholding and maintaining untarnished the glory and reputation of the Court as regards its authority, fairness and impartiality. In a long line of cases the true measure of the jurisdiction and the principles determining the occasion for its legitimate use have been explained, and I propose to refer here to a few of them. Coleridge, J., in (1842), Dowling's Rep Ex parte Wilton (1842) Dowling's Rep 805 said:
As I did not recollect any case that could be considered in point I desired to pause before I granted the rule, because although no Court ought to shrink from the assertion of those privileges or the exercise of those powers with which the law has invested it in trust for the public yet, every Court, however high, ought to proceed with great caution in the use of summary power and to hesitate in making a precedent which may be abused even where there may be much seeming reason and convenience in the exercise of it in the particular instance.
45. In Re Clements and Costa Rica Republic v. Erlangar (1877) 46 CJ Ch 375 Jessel, M.R., observed:
This jurisdiction of committing for contempt being practically arbitrary and unlimited should be most jealously and carefully watched and exercised, and if I may say so, with the greatest reluctance and the greatest anxiety on the part of Judges to see whether there be no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject. I say that a Judge should be most careful to see that the cause cannot be fairly prosecuted to a hearing unless this extreme mode of dealing with persons brought before him on accusation of contempt should be adopted. I have myself on many occasions to consider this jurisdiction and I have always thought that necessary though it be, it is necessary only in the sense in which extreme measures are sometime necessary to preserve men's rights, that is, if no other pertinent remedy can be found, probably that will be discovered after consideration to be the true measure of the exercise of the jurisdiction.
46. In Hunt v. Clarke (1889) 58 LJ NS 490 Cotton, L.J. while holding that a publication of a particular article in the Star was a contempt, went to consider whether it was such a contempt as would require or justify the Court in making an order against the party in contempt in the exercise of summary jurisdiction and said:
I express my opinion that if a thing is done wilfully which really will prejudice the parties to the cause before it comes on, I should not hesitate to commit to prison anyone who so offended, but of course that jurisdiction by the Court is only to be exercised in extreme cases and it would be most unfortunate if this Court or any Court readily took upon itself to interfere in such a summary way and in such an extraordinary way unless there were something which required the interference of the Court in that way in order to ensure the due conduct of business.... It is not necessary that the Court should come to the conclusion that a Judge or a jury will be prejudiced, but if it is calculated to prejudice the proper trial of a cause, that is contempt, and would be met with the necessary punishment in order to restrain such conduct.... The question is not whether technically a contempt has been committed, but whether it is of such a nature as to justify and require the Court to interfere.
47. Lopes, L.J. in the same case observed:
I think it was calculated to prejudice the defendant in his trial then pending and therefore calculated to interfere with the due course of justice.
48. In Seaward v. Paterson (1897) 1 Ch 545, Lindley, L.J. pointed out:
That the Court ought to be very chary in committing people for contempt particularly in cases of fanciful contempt. The Court, unless it is to become useless, must deal with such questions in the interest of the public, bearing in mind that the greater the power it possesses, the more caution it is necessary to use in exercising it.
49. The true point of view from which, the question has to be looked at in order to ascertain whether a scandalisation of the Court is a contempt deserving of being dealt with summarily is to examine the circumstances of the case and see whether in reality there is a tendency in the offending publication to obstruct the ordinary course of justice or prejudice the trial. And I am of opinion that if the reality of the thing is to be regarded, the only cases in which such procedure would be justified would be cases where the offending publication has some relation to a cause or a proceeding either expected to come or is pending or I shall go further and say, has been disposed of. As Lord Blackburn has observed, very often it happens that contempt is committed by a personal attack upon a Judge or an insult offered to him, but as far as their dignity as individuals is concerned, it is of very subordinate importance compared with the vindication of the dignity of the Court itself. But while the dignity of the Court must always be upheld and maintained it is only the class of cases in which it becomes necessary to uphold and maintain it for some immediate specific purpose that the summary jurisdiction can be legitimately exercised. The essence of contempt is action or inaction amounting to an interference with or obstruction to or having a tendency to interfere with or to obstruct the due administration of justice. Lowering the dignity of the Court or shaking the confidence of the public in it is undoubtedly reprehensible. But if general remarks impugning the independence of a Court are made, such remarks can tend to interfere with or obstruct the administration of justice, only indirectly and remotely and in an ideal sense. And in such cases there can, in my opinion, be no warrant for the exercise of the extraordinary powers which the Court possesses to deal with contempts.
50. I have found in the books quite a number of cases in which Judges who had to deal with proceedings in contempt have expressed their unwillingness to go beyond decided cases and have shown an anxiety to look for precedents. I think, I have already referred to one of them before, namely (1842) Dowling's Rep Ex parte Wilton (1842) Dowling's Rep 805 decided by Coleridge, J. And it may again be said with truth, as has been said by Gibson, J., in King v. Freeman's Journal (1902) 2 Ir Rep 82 at p. 92:
So far as this branch of law represents the decision and discretion of the Court in dealing with particular facts they cannot be relied on as authorities, for as Lord Halsbury says in London Joint Stock Bank v. Simmon (1892) AC 201 at p. 208 no one can on facts be regarded as an authority for another, and the books are full of examples where Judges have expressed disapproval of the exercise of discretion by their predecessors. Thus in In re. Johnson (1887) 20 QBD 68 at p. 73, Lord Esher M.R. disagreed with the action of Coleridge, J., in refusing an attachment; and in Cooper v. Osprey, 3 B & S 932 the Queen's Bench dissented from the view of the Exchequer who also declined to attach.
51. But as Sargant, J., has very rightly pointed out in Dunn v. Bevan (1922) 1 Ch 276 at p. 285, the Court ought not in any way to enlarge the jurisdiction or apply it to matters which are outside the well-established lines. To go beyond the range up to which precedents have gone would, in my judgment, be dangerous and unwise in the extreme. I have therefore examined the precedents with such care and scrutiny as the short time at my disposal has permitted, in order to find out whether there has been any case in which an offending publication of the present nature has been dealt with in contempt; but I have not been able to find any single case, except one very recent decision of an Indian High Court and with which, as I have already said, I am unable to agree, which may directly or even indirectly support the proceedings in the present case. I propose briefly to refer to the precedents and shall in doing so try to confine myself in the first place to eases which have reference to constructive contempt and nextly to cases of scandalising of the Court.
52. In Sir John Fox's book on the History of Contempt of Court a large number of cases has been cited, of contempt out of Court, none of which approaches the present case. Indeed, as he has shown, even after Rex v. Almon (1765) Wilmot's Opinions 243 in 1765 down to the end of the eighteenth century there were only two cases, namely of William Bingley and of Stead, both of which proceeded from libel on Lord Mansfield in connexion with cases dealt with by him. In Witham v. Witham (1669) 21 ER 723 an attachment was ordered to issue and it was also suggested that the defendant might have been committed; the case being one in which, when the plaintiff told the defendant that he had come to serve him with an order from the Master of the Rolls the defendant used language insulting to the latter. In R. v. Crosse (1703) 87 ER 799, it was held that attachment lay for speaking contemptuously of the Court on being arrested. In Philips v. Hedges (1736) 125 ER 1004 the contempt was for cursing the Chief Justice and the Court on service of processes, and in that case an attachment was granted without any Rule to show cause. So also in R. v. Jermy (1752) Sayers Rep 47 and in R. v. Hendrick (1754) Sayers Rep 114. In R. v. Watson (1788) 2 Term Rep 199 an order was made by a Corporation and entered in their books stating that a person against whom a jury had found a verdict in an action for malicious prosecution and perjury was actuated by motives of public justice in preferring the indictment and it was held that this was a libel reflecting on the administration of justice for which the Court would grant an information against the members making that order. A case of libel on Court, in which order was made committing the defendants for public reflections on the Court and the parties then before the Court, is cited in Ex parte Sandan (1846) De Gex 303 at p. 312 as Be Quick decided in 1806. In Holt on Libel two cases are referred to in the portion where the subject of Libel on Court is dealt with. These cases are King v. Hart and White and King v. Northampton. The former of these cases is noticed under the name of Rex v. White (1806) 1 Campbell 350 n.. This case was on an information filed by the Attorney-General against the proprietor and printer of a Sunday newspaper called 'The Independent Whig' for a libel upon Le Blank, J., and the jury before whom a Captain of a merchant ship had been tried for a murder at the Old Bailley. Gros, J., said:
It certainly was lawful, with decency and candour, to discuss the propriety of the verdict of a jury or the decision of a Judge, and if the defendants should be thought to have done no more in this instance they would be entitled to an acquittal, but on the contrary transgressed the law and ought to be convicted if the extracts from the newspaper set out in the information contained no reasoning or discussion but only declamation and invective and were written not with a view to elucidate the truth but to impugn the character of individuals and to bring into hatred and contempt the administration of justice in the Court.
53. Of the second case I have not been able to find any trace, within the limited time at my disposal. (Note: when I am revising this judgment I find that this case is of 1344. It was a case in which an attorney confessing that he had written a letter to one of the King's Counsels reflecting on the Judges of the King's Bench, the King's Bench adjudged that the letter was a scandal upon the Court and the attorney was committed and afterwards found sureties for his good behaviour. Holt cites it as a case of indictment). Ex parte Jones (1806) 13 Ves. 237 is an important case. The Committee of a lunatic and his wife and other persons had been brought up before the Court for libelling the petitioner as regards the management of the lunatic under the Court's order. Lord Erskine, L.C., in giving judgment distinguished the case from ordinary cases of constructive contempt 'depending upon the inference of an intention to obstruct the cause of justice' and said that whatever may be said as to a constructive contempt, the case before him was one in which there was not only an obvious tendency but a design to obstruct the ordinary course of justice. Rex v. Clement (1821) 4 Barn & Ald 218 was a case where proceedings in Court had been contemptuously published. Ex parte Wilton (1842) Dowling's Rep 805 was a case where the parties attending a reference for decision before the Master left the office at the conclusion of the reference for the day and one of those parties, who during the reference had insulted the other, then, on the steps of the Master's office assaulted the latter. Ex parte Van Sandau (1844) De Gex 55 was a case in which the defendant who was a solicitor in a case, being dissatisfied with the decision of the Court wrote, printed and published a libel upon the Judges of the Court and upon other persons. In Birch v. Walsh (1846) 10 Ir Eq Rule 93 a barrister had caused to be published a garbled and improper account of the proceedings in a case. In that ease Cusack Smith, M.R., after classifying cases of contempt into three classes, as has already been referred to in this judgment and reviewing a number of cases dealing with constructive contempt, expressed his view in these words:
In all the cases therefore in which there has been commitment for constructive contempt, except the case of Cann v. Cann (1754) 2 Ves. Sen. 520 the publication was either calculated to produce false evidence or attributed perjury to witnesses pending the suit.
54. He refused to make an order for attachment or committal and referred approvingly to certain observations made by Mr. Hargrave on the case of Cann v. Cann (1754) 2 Ves. Sen. 520 which were in the following words:
If the doctrine of contempt be thus wide, if any of the great Courts of Westminster Hall may' construe what they please into contempts and may under the denomination without trial by jury convict all persons of crime and have also an indefinite power of punishing by fine and imprisonment, and if all this when done be unappealable and unexaminable, what is there but their own wisdom and moderation and the danger of abusing so arbitrary a power to prevent any act under shelter o the law of contempts from practising all the monstrous tyranny which disgraced and at length overwhelmed the Star Chamber.
55. I have looked into the case of Cann v. Cann (1754) 2 Ves. Sen. 520 to see what the facts of the case were. It was a case in which a person had published an advertisement as to the proceedings in Court which tended to prepossess people as regards those proceedings.
56. In Onslow's and Whalley's case (1873) 9 QB 219, Cockburn, C.J. pointed out how public discussions upon a pending trial may disturb and interfere with the course of justice and might in the end influence the proceedings in it. A careful perusal of the judgment, in my opinion, shows that some real obstruction or interference is what is meant and not a general opinion as regards the independence of the Court, which is the only thing alleged here. Skipworth's case (1873) 9 QB 230 was a case in which vituperative epithets had been used and scurrilous matters published as regards the Lord Chief Justice in connection with his conduct while sitting in Court; and the decision of Blackburn, J. proceeded on the footing that the effect of such contempt was to prevent justice being administered in the ordinary way. Re Clements and Costa Rica Republic v. Erlangar (1877) 46 CJ Ch 375 was a case in which contempt was committed with regard to a pending cause and Jessel, M.R., observed that a judge should be most careful to see that the cause cannot be fairly prosecuted to a hearing unless this extreme mode of dealing with a person brought before him on accusation of contempt should be adopted. In re. Johnson (1887) 20 QBD 68 was a case in which a solicitor who had attended the hearing of an application before a Judge in Chambers in the Royal Courts of Justice, immediately after such hearing and while the parties were on their way from the Judge's room to the entrance gate of the building, made use of grossly abusive expressions and threatening gesture to the solicitor of the other side in relation to such application, and it was held that such conduct in relation to proceedings before a Judge in Chambers was a contempt of Court punishable by attachment. Lord Esher, M.R. in that case observed that if the Judge is acting judicially in the office of a Judge he is acting as a Judge of the High Court of Justice; it signifies not where he is sitting or what he is doing in such judicial capacity; and if one attempts to interfere improperly with such judicial proceedings provided it is done with sufficient nearness it is a contempt, a contempt not of the Judges but of the High Court as a Judge of which he is acting. In Hunt v. Clarke (1889) 58 LJ NS 490, it was held that the publication in a newspaper, pending an action or before the trial of an action, of any observations which in any way prejudice the parties to the action is technically a contempt of Court. In O'Shea v. O'Shea and Parnell (1890) 15 PD 59 the contempt of Court consisted in the publication of comments, by a party in a pending action against his wife for dissolution of marriage, which were calculated to prejudice the fair trial of the action.
57. The case before the Judicial Committee in In the matter of a Special Referee from the Bahana Islands (1893) AC 138, at first sight seems to have no importance so far as the question arising in the present case is concerned because in that case the alleged contempt consisted in publishing a libel against the Chief Justice of the Bahama Islands, not in connexion with his conduct as a member of the Court. Yet it certainly is a ease in which the extreme proposition of Wilmot, C.J., in Almon's case Rex v. Almon (1765) Wilmot's Opinions 243 could not possibly have found favour with the Judicial Committee; because although it was insinuated in the article that the Chief Justice was incompetent and so the article was a libel, their Lordships held that it was not calculated to obstruct or interfere with the course of justice or the due administration of the law and so did not amount to contempt of Court. This decision, in my opinion, indicates the real meaning of obstruction or interference, such as would be necessary to constitute contempt. A decision which in my view is of very great importance in its relation to the present case is that of the Judicial Committee in McLeod v. St. Aubyn (1899) AC 549. That was an appeal from the Supreme Court of St. Vincent. A letter and an article had been published in a newspaper called the Federalist in which scurrilous abuses were made charging the honesty, independence and impartially of Mr. St. Aubyn. The whole trend of the publication was to shake the confidence of the public in the administration of justice by that Judge stating that he was incapable of maintaining the noble tradition of the British Bench, that he had been wrapped up and intermingled with personal disputes and squabbles of a questionable character, that he was incapable of dealing honestly and impartially with questions which came before him to be judicially settled, that his conduct on the Bench was not at all dignified, that he had been severely rebuked and censured by Mr. Chamberlain, and similar other allegations of a very serious and highly objectionable nature were made as regards him. There was nothing said with regard to any case whether expected or pending or disposed of. Their Lordships in dealing with this case observed thus:
It is a summary process and should be used only from a sense of duty and under the pressure of public necessity, and there can be no landmark to point out the boundaries in all cases. Committals for contempt of Court by scandalising the Court itself have become obsolete in this Country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies consisting principally of coloured population the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity and respect for the Court.
58. Their Lordships then dealt with the case on its merits and eventually held that the committal could not be sustained. The judgment was delivered by Lord Morris. The Board consisted of Lord 'Watson, Lord Macnaughten, Lord Morris and Lord Davey. The observations just quoted recite that committal for contempt of Court by scandalising the Court itself had ceased to be in practice in the Courts in England and also in other Courts under the British Crown, except in small colonies consisting principally of coloured populations where by reason of exigencies of circumstances enforcement in proper cases of such committal for contempts of that description was absolutely necessary to preserve the dignity and the respect for the Court. Their Lordships did not disapprove but, as far as one can gather, approved of the discontinuance of such committals and their Lordships also referred, as far as one can gather, approvingly to the practice of leaving such attacks or comments to be dealt with by public opinion. And their Lordships laid stress upon absolute necessity as the only justifying ground for a departure from the practice that was obtaining. Such absolute necessity, in my judgment, does not arise, unless there is a real obstruction to or interference with the course of justice, of which I can see nothing in this case. The present case resembles that case before the Judicial Committee in one of its essential features, namely, that in neither of them is there any question of any cause or proceeding being in view. It differs from that case in two respects; in that case the libel was on the Judge, while in this it is on the Chief Justice and the Judges and so on the entire Court; and also, here there is a general remark that the Court has lost its independence, while in that case the abuse was virulent and scurrilous.
59. The case in Reg v. Gray (1900) 2 QB 36 was one in which there was a publication in a newspaper of an article containing a scurrilous personal abuse of a Judge with reference to his conduct as a Judge in a judicial proceeding which had terminated. It was held that it was a contempt of Court punishable by the Court on summary process. The decision of the Judicial Committee in McLeod v. St. Aubyn (1899) AC 549 does not appear to have been referred to by Lord Russell of Killowen, C.J., who delivered the judgment in that case. I shall not be presumptuous enough to suggest that the Lord Chief Justice was not aware of that decision, but the fact remains that even the counsel for the accused did not refer to it at all, not even for the purpose of showing that in the opinion of the Judicial Committee, consisting of such members as I have already named, committals for contempt of Court for scandalising the Court had gone out of use. Whatever the reason for this omission may have been, the point the Lord Chief Justice was considering in that case was whether such publication amounted to contempt of Court and whether the fact that the judicial proceedings had terminated would deprive the Judge of his power to deal with the contempt on summary process.
60. The Lord Chief Justice gave a definition of contempt, one class of which according to him was any act done or writing published calculated to bring a Court or a Judge of the Court into contempt or to lower his authority and this class, he observed, belonged to the category which Lord Hardwick, L.C., had characterised as scandalising a Court or a Judge. He held that such a publication amounted to contempt of Court. He held also that he had to deal with it as a case of contempt and brevi manu. He then observed thus, and it is these observations which, in my opinion, are of supreme importance:
This is not a new jurisdiction. It is a jurisdiction as old as Common Law itself of which it forms a part. It is a jurisdiction the history, purpose and extent of which are admirably treated in the opinion of Wilmot, C.J. (then Wilmot, J,) in his Opinions and Judgments. It is a jurisdiction however to be exercised with scrupulous care, to be exercised only when the case is clear and beyond reasonable doubt, because if it is not a case beyond reasonable doubt the Court will and ought to leave the Attorney-General to proceed by criminal information.
61. He held that there was no reasonable doubt whatsoever with regard to the case. The only doubt with which he was concerned was whether by reason of judicial proceeding having terminated the Judge or the Court had lost its power to deal with it on summary process. If any libel on the Court irrespective of a specific case to which it related could be contempt of Court punishable summarily why was it necessary for the learned Chief Justice to think of any doubt at all? The decision, in my opinion, cannot be read as legalising the exercise of a jurisdiction with regard to contempt of Court of a nature for which no precedent whatsoever is to be found and with regard to which the opinion of the Judicial Committee pronounced only ten months before was that such proceedings had become obsolete. In a note which the reporter of this case has put in at the end of the report it has been said:
The present case Reg v. Gray (1900) 2 QB 36 is reported as showing that in this country the Court will still, where the circumstances demand its action, exercise its jurisdiction to punish on summary process the contempt of scandalising the Court although no contempt has been committed ex facie of the Court or in respect of a case pending.
62. Neither the decision nor this note can, in my judgment, be read as suggesting that apart from any consideration of any cause or proceeding either expected to come to or pending in or disposed of by a Court, summary process brevi manu can or should be adopted. The case last mentioned was referred to soon after in King v. Freeman's Journal (1902) 2 Ir Rep 82 and was treated as an authority for the proposition that scurrilous abuse of a Judge with reference to a concluded trial may be punishable as the contempt of Court. One of the learned Judges in this case also observed that the exercise of summary jurisdiction in such a case had been so rare that it had been regarded as obsolete. The point that was considered in the case was whether the trial of a prosecution for seditious libel had ended in a disagreement amongst the jury and it was intended, though not formally stated, that a new jury would be empanelled, the proceedings could be tried as pending proceedings for the purpose of taking action for alleged contempt of Court. The judgments of Lord O'Brien, L.C., and Gibson, J., contain sufficient materials from which it may be fairly inferred that the exercise of summary jurisdiction can only be justified in a case where a real obstruction or a real tendency to obstruct the ordinary course of justice is apprehended.
63. The learned Lord Chancellor referred to and quoted at length Lord Blackburn's judgment in Skipworth's case (1873) 9 QB 230, a case of contempt in connexion with a pending case. He also referred to the case in The Queen v. Payne (1896) 1 QB 577, in which the libel was not of the Court but of a person awaiting trial in a Court and in which some very important observations were made which go to indicate what is the kind of obstruction or interference which the idea of contempt involves. These observations are to be found in the judgments of Lord Russel of Killowen, C.J. and of Wright, J. Re Sarbadhicary (1906) 29 All 95 was a case in which an advocate of the High Court at Allahabad had been dealt with by that High Court under Sections 7 and 8 of its Letters Patent and the rule framed thereunder for having published an article which was a libel upon the judges in their judicial capacity and in reference to their conduct in the discharge of their public duties. The article itself or at least a substantial portion of it will be found reported in 23 Times Law Reports 180. Their Lordships held that by the publication of the article not only was the advocate guilty of conduct which could be dealt with by the High Court in the exercise of its disciplinary authority, but the publication of the article amounted to a contempt of Court. It should be noted that a portion of the article at least referred to a particular Judge in connexion with his conduct in the course of the hearing of a case. Rex v. Davies (1906) 1 KB 32 was a case in which the question as regards the power of the King's Bench Division to punish by attachment contempts of inferior Courts was canvassed. Wills, J., referred to a number of decisions explaining' the law as to contempt, and quoted elaborately from the undelivered judgment prepared by Wilmot, J., in Rex v. Almon (1765) Wilmot's Opinions 243, and held that the King's Bench Division had such jurisdiction. The learned Judge was concerned with making out that the King's Bench Division has power to punish by attachment contempts of inferior Courts. He applied Wilmot, J.'s words to libel of inferior Courts and observed:
The public mischief is identical and in each instance the undoubted possible recourse to indictment or criminal information is too dilatory and too inconvenient to afford any satisfactory remedy.
64. In so far as India is concerned, contempts of inferior Courts except those within the limits of the original jurisdiction of the High Courts were never treated on that footing: see Legal Remembrancer v. Matilal Ghose, 1914 Cal 69. And I am not sure that any High Court even at the present day would feel justified in taking summary proceedings in contempt in respect of a general opinion expressed by anybody against the competence or independence of a subordinate Court in the mofussil. I have read the decision in Rex v. Davies (1906) 1 KB 32 as carefully as I can, but I cannot read it as suggesting that the summary remedy should be applied in any classes of cases to which it had not been applied before. In Dunn v. Bevan (1922) 1 Ch 276 the issuing of a circular letter containing misleading comments on the judgment of a Court was not regarded as constituting contempt of Court on the ground that the action being at an end and the judgment delivered, there could be no possible interference with the course of justice and that any such publication must be left to be dealt with by the ordinary law of libel. The case in Rex v. Editor of the New Statesman (1928) 44 TLR 301 was a case in which Avory, J., was scandalised for having made certain order on the Press in connexion with proceedings in Court which he was dealing with. In Attorney-General of the Irish Free State v. O'Kelly (1828) Ir Rule 308 it has been noted that committals for contempt of Court by scandalising the Court itself have not become obsolete and the dictum to the contrary in McLeod v. St. Aubyn (1899) AC 549 cannot be accepted as accurate having regard to the subsequent decisions in Reg v. Gray (1900) 2 QB 36 and Rex v. Editor of the New Statesman (1928) 44 TLR 301. The contempt in this case consisted in libelling a Judge for what he did in connexion with a trial held by him with the assistance of a Jury.
65. I shall now refer to a few other decisions which are generally cited in connexion with contempt of superior Courts committed out of Court. These are McDermott v. Judges of British Guiana (1868) 2 PC 341; Smith v. Justice of Sierra Leone (1841) 3 Moo PC 361 and Rainy v. Justices of Sierra Leone (1852-53) 8 Moo PC 47. These are all cases of such libel in connexion with some particular acts of the Court as had a direct tendency to interfere with or obstruct the course of justice. These are all the cases, apart from certain decisions of the Indian Courts, to which I shall presently refer, which in my opinion have got any bearing on the question I am now considering. As regards the decisions of the Indian Courts I propose only to refer to a few. The point now under consideration does not appear to have ever arisen or been considered. The first case is Re Abdool and Mahtab (1867) 8 WR Cr 32 in which the accused who were chaprasis of the Court attached to a particular Judge had received presents from suitors, etc. In Re William Tayler (1869) 1918 Cal 713 the insult which had been offered to the Judge was in connexion with a trial which had been held by him. So also are the facts of the case in In the matter of Banks and Fenwick, 1918 Cal 752 which arose out of Re William Tayler (1869) 1918 Cal 713 just cited. Legal Remembrancer v. Matilal Ghose, 1914 Cal 69 was a case of an alleged contempt of a Mofussil Criminal Court said to have been committed by a publication in connexion with a ease in that Court. In In the matter of the Amrita Bazar Patrika,1918 Cal 988 the Chief Justice had been scandalised by an article which implied that he had constituted or was about to constitute a packed Bench to deal with a particular case. Bason v. Skone, 1926 Cal 701 has no relevancy to the question now under consideration. In In Re N.C. Kelkar (1909) 38 Bom 240 a learned Judge had been defamed in connexion with his trial and decision in a particular case. In In re Satya Bodha Ram Chandra, 1922 Bom 426 scandalous attacks had been made upon the integrity and impartiality of the High Court after it bad delivered its judgment in a particular case. In Re Abdul Hasan Jowhar, 1926 All 623 the contempt was of an inferior Court and it was a case of public insult to the Judge and the dignity of the Court after the termination of a case.
66. The only decision in which the point I am at present considering has been decided against the view that I am taking is the case in Re Advocate of Allahabad, 1935 All 1. I have very carefully read the decision of the learned Judges in that case, but with the utmost regard for their decision I must say that I am unable to agree in the view which they have taken. And I may also be permitted to say that if the extract from the publication as given in the report is the only offending passage, I should be very reluctant to hold that it was any contempt of Court at all.
67. If constructive contempt depends, as it in my opinion does, upon an inference of intention to obstruct the course of justice or of a tendency to create such obstruction, the presence or absence of a cause or proceeding, either expected or pending or disposed of, in my judgment forms a most important factor to be taken into account. It may be argued that what difference does it make that no particular cause or proceeding is expected, when daily and from day to day hundreds of cases are coming up for disposal before the Court, and if the litigants lose faith in the independence of the Court, free flow of justice in those cases would be impeded? My answer is that the obstruction that is required must be a real and not merely an ideal one; and I think I have already quoted sufficient authority which establishes that proposition. While I would strongly deprecate any publication which may have the tendency to undermine the reputation of the Court or lower it in the estimation of the public for whose benefit it exists, I cannot bring myself to hold that contempts of that character were ever intended to be dealt with in the exercise of the Court's summary jurisdiction. I have heard it suggested that if such proceedings can be taken in respect of objectionable remarks against the conduct of a Court or of a Judge in connexion with a case that is over, on what principle should a distinction be made where objectionable remarks of a general nature are made as have been made in the present case?
68. In my judgment, there is an essential and material difference between the two classes of cases. In the former class of cases the remarks may have the tendency to affect the administration of justice in other cases to follow, or there is the danger of the course of justice being diverted or perverted on the risk of justice not being permitted to flow the ordinary course, elements which must be entirely absent in the latter class of cases. When a case has been decided that may not be the end of it; the decision may be subject to appeal or revision or some further proceeding, e.g., in the nature of execution, may follow. When the matter is final, it may give rise to other proceedings or may furnish a precedent. Scandalising the Court with reference to a decided case may bring the decision itself into disrepute by means outside the ordinary course of justice, and may have the effect of deterring the Court from proceeding on the lines on which the Court had proceeded in arriving at the decision. By general remarks of the character as in the case before us, the Court is not prevented in any, way from following its normal course.
69. I am not for the moment directly concerned with the question whether the Court has any other effective remedy for its protection, but I may point out Section 194, Clause (2) and Section 108, Criminal P.C. I do not feel pressed by the consideration that the Local Government may in any particular case withhold the necessary, sanction under the former of the two provisions, because I am not prepared to assume that such a lamentable situation can ever arise. If the existing law is not sufficient, legislation may with propriety be resorted to. But simply because the summary procedure is a more convenient remedy, convenient only from a point of view of the Court itself, I am unable to assent to go beyond the well-established lines beyond which Courts in England have never gone, and create a precedent by departing from the dictum of the Judicial Committee in McLeod v. St. Aubyn (1899) AC 549 which, even if it be an obiter, is entitled to the highest respect from all Indian Courts. Decisions of the Privy Council, though entitled to very great weight everywhere, are not binding on King's Bench Division (see Dulien v. White (1901) 2 KB 669. It is undisputed that the authority of the Judicial Committee so far as its effect on Indian Courts are concerned is far greater than that of any other Court in the British Isles. And their Lordships in Mata Prasad v. Nageshar Sahai, 1925 PC 272, have observed thus:
Their Lordships think it desirable to point out that it is not open to the Courts in India to question any principle enunciated by this Board, although they have a right of examining the facts of any case before them to see whether and how far the principle on which stress is laid applies to the facts of the particular case.
70. I here once again refer to the objectionable passage but only for the purpose of concluding the judgment. The passage is a highly offensive one. By putting his ideas in the form of a positive assertion that the Chief Justice and the Judges take a peculiar delight in hobnobbing with the Executive and then stating the result that follows from such hobnobbing he has put up before his readers a picture of the Court which is bound to lower the Court in the estimation of the public. This intention is not a matter of inference only, for he has expressed that intention in the words which immediately follow the passage. Taking the article as a whole, I am prepared to hold that the object was that the administration of the High Court might improve; but by writing the passage in question he has not secured that end but the contrary. The Court undoubtedly had a glorious past and possesses traditions of which it may justly boast; and if in the opinion of the writer or, as he says, of the public that reputation has suffered, remarks such as those contained in the passage in question can in no way improve the situation and can only make matters worse.
71. So far as the Rule is concerned, I am of opinion, for reasons I have already given, that it should be discharged.
72. I entirely agree with the views expressed by my lord the Chief Justice.
73. Sir Tej Bahadur Sapru in his argument on behalf of the respondent Tushar Kanti Ghosh made the submission that the article which appeared in the Amrita Bazar Patrika on 23rd March last did not refer to any case pending before this Court or to any case decided by this Court either recently or in the past, and that assuming in any view of the matter that the article in question amounts to contempt of Court, it is at the most a technical contempt, and as it does not seek to obstruct the cause of justice or interfere with any trial, this Court has no jurisdiction whatever to take proceedings by way of summary procedure. The proper procedure should be by information under S, 191, Criminal P.C.
74. The first question we have to determine in this matter whether the article referred to in the affidavit of Mr. Collet does amount to a contempt of Court and at the outset I think it should be emphasised that we act in these matter's not to defend the dignity of the Court but to safeguard the proper administration of justice and to ensure as far as possible that the confidence of the public in that administration shall not be destroyed or in any way diminished. In that connection one should bear in mind the weighty words of Wills, J., who delivered the judgment of the Court in Rex v. Davies (1906) 1 KB 32 when he said that the principle which is the root of and underlies the cases in which persons have been punished for attacks upon Courts will be found to be not the purpose of protecting either the Court as a whole or individual Judges of the Court from a repetition of them, but of protecting the public and especially those who either voluntarily or by compulsion are subject to its jurisdiction, from the mischief they will incur if the authority of the tribunal be undermined or impaired.
75. Wills, J., cited a part of the undelivered judgment of Wilmot, C.J., in Rex v. Almon (1765) Wilmot's Opinions 243 where he said that:
Attacks upon the Judge excite in the minds of the people a general dissatisfaction with all judicial determinations and whenever mens' allegiance to the laws is so fundamentally shaken it is the most dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsoever, not for the sake of the Judges or private individuals but because they are the channels by which the King's justice is conveyed to the people. To be impartial and to be universally thought so are both absolutely necessary for giving justice that free, open and unimpaired current which it has for many ages found all over this kingdom.
76. These words of Wilmot, C.J., have been quoted with approval in innumerable cases throughout that one hundred and seventy years which have elapsed since they were written and despite the doubt as to their applicability to the present instance which Sir Tej Bahadur sought to establish, they must be taken to constitute the appropriate criterion and the right canon of interpretation for use in a matter of the kind now before us. Applying the principles enunciated above, I can only come to the conclusion that the article is not only a contempt but a contempt of a very serious nature in that para. 1 of the article is directly calculated to instill in the mind of the people a mistrust of and a dissatisfaction with the administration of justice in this Presidency. It seems clear that the object and intention of the attack was to induce the public at large to believe that future cases in this Court will be dealt with by Judges who are no longer free from outside control or influence specially in proceedings to which the Executive in some form or other is a party or in which the Executive is interested. A more scandalous and mischievous assertion against any Court as such it is difficult to imagine. To call the sort of statement published or permitted to be published by the respondents in this case fair comment or a mere technical contempt is to my mind an entire misuse of words and is a contention which must be rejected. It is to be observed that the question whether a particular publication be libellous or contemptuous and the construction of that publication is, as has been said in many instances, a question for the Court which deals with the matter: see per Paterson, J., in In re Crawford (1849) 13 QB 613 at p. 628. This brings me to the question of the jurisdiction of the Court to punish a contempt of this nature in summary proceedings such as the present before the Court itself, because in the case I have just referred to, In re Crawford (1849) 13 QB 613, it had been objected that the Court could have no general power of commitment for libel published out of Court. Paterson, J., in the course of that case, said that in Rex v. Almon (1765) Wilmot's Opinions 243, there was a very learned judgment by Chief Justice Wilmot in which he satisfactorily showed that a Court of record has power to punish by commitment for contempt or libel published while the Court is not sitting. Patterson, J., then stated (p. 628):
There must be a choice as to the mode of proceeding for he (e.g. Wilmot, C.J.), says that the punishment may be by indictment or by commitment for contempt. He treats it throughout as a matter for election.
77. Paterson, J., then held that the Court had the power i.e. to commit and stated 'that is clear law.' It has been strenuously argued in the proceedings now before us that as there is no question of a contempt in facie curiae or in connexion with a pending or recently determined cause, this Court, although admittedly a Court of Record, has no power to deal summarily with the offenders. There are however many authorities for the proposition that it is well within the competency of a High Court in India to deal summarily with a contempt consisting of scandalous or scurrilous comments made in connexion with a matter already adjudicated upon, and in this connexion having regard to what has already been said by my Lord the Chief Justice, I need only mention the case in In re Satya Bodha Ram Chandra, 1922 Bom 426, where Martin, J., referred with approval to the judgment of Wills, J. (from which I have already quoted) and to the undelivered judgment of Wilmot, C.J. Martin, J. also referred to several previous cases in the Bombay High Court in which a similar point had arisen. I am wholly at a loss to understand how it can be contended that it would be right to proceed by way of summary procedure in a case where a scandalous attack had been made upon a Court by reason of something which had happened in the past but wrong to proceed in like manner where a scandalous attack is made upon the Court which from its very nature must have a disturbing and indeed pernicious effect upon the mind of the public in general concerning the purity and impartiality of the adjudication of every succeeding case corning before the Court or at any rate regarding the ever constant succession of cases in which in some shape or form the Executive is a party interested.
78. In my opinion to endeavour to proceed by way of an information in cases of contempt by scandalising the whole Court would be to attempt something which upon a reasonable visualisation of its inevitable concomitants and implications would appear to be not only patently inconvenient and unseemly but also practically impossible. Sir Tej Bahadur based the whole fabric of his argument on the question of jurisdiction upon the dictum of Lord Morris in McLeod v. St. Aubyn (1899) AC 549 which has already been commented upon by my Lord and on the strength of that one authority the learned advocate has invited us to hold that the judgment of Wilmot, C.J., has long since ceased to be a correct enunciation of the law. It cannot be doubted and indeed it is beyond question that if the views expressed by Wilmot, C.J., hold good and apply in this country, then it is clearly competent for this High Court to proceed by way of summary procedure in cases of contempt by scandalising the Court and so the whole of Sir Tej Bahadur Sapru's argument falls to the ground. The learned advocate found himself bound to admit to the fullest extent that the judgment of Wilmot, C.J., has indeed been quoted with approval and his doctrine applied in a long series of cases many of which are tabulated at p. 30 of Sir John Fox's monograph on Contempt of Court to which book Sir Tej Bahadur referred as lending support to his argument. It is to be noted however that Sir John Fox at p. 33 of that book affirms that
by a series of decisions and by citation Wilmot's doctrine has become part of the law of England though he does raise the question whether there is any solid ground for the contention that it was the law by immemorial usage in the year 1765.
79. Sir Tej Bahadur was quite unable to place before us even one case in which Wilmot's doctrine has been dissented from or even adversely commented upon by any Court with the solitary exception of a dissenting judgment given by an Irish Judge, Fletcher, J.., in a case which has never been properly reported. As I indicated to Sir Tej Bahadur in the course of his argument, it seems to me to be asking too much of this or any other Court to invite it to reject Wilmot's doctrine on the strength of this one dissentient opinion which stands alone in the long catenation of decisions agreeing with the principles laid down in Rex v. Almon (1765) Wilmot's Opinions 243. That the doctrine enunciated by Wilmot and the procedure approved of by him are still valid and subsisting in England is, in my' opinion, quite clear from the judgments in Reg v. Gray (1900) 2 QB 36, Rex v. Davies (1906) 1 KB 32 and Rex v. Editor of the New Statesman (1928) 44 TLR 301 to which reference has been made by my Lord the Chief Justice.
80. It seems to me therefore with all possible respect to Lord Morris that his Lordship's speech in McLeod v. St. Aubyn (1899) AC 549 cannot be taken as being a correct enunciation of the law if indeed it was really intended to be such. It may well be, the noble and learned Lord was doing no more than stating as a matter of fact that the proceedings by way of summary procedure were obsolete-obsolete possibly for the reason that with the spread of education in England and the growth of a widespread healthy public opinion and a general respect for the administration of justice, occasions for resorting to summary procedure in cases of contempt by scandalising the Court had been few and far between, if not wholly nonexistent. It happened that the point now under discussion came before the High Court of the Irish Free State in the year 1928 in Attorney-General of the Irish Free State v. O'Kelly (1828) Ir Rule 308 when a Bench consisting of Sullivan P. Meredith and Hanna JJ., held that committals for contempt of Court by scandalising the Court itself have not become obsolete and that the dictum to the contrary in McLeod v. St. Aubyn (1899) AC 549 cannot be accepted as accurate having regard to the subsequent decisions in Reg v. Gray (1900) 2 QB 36 and Rex v. Editor of the New Statesman (1928) 44 TLR 301. In Attorney-General of the Irish Free State v. O'Kelly (1828) Ir Rule 308 a preliminary objection had been raised that the Court had no jurisdiction to entertain the application made by the Attorney-General that an order of attachment should issue against the Editor of The Nation newspaper. Sullivan, P. in his judgment said that in order to appreciate the argument that was addressed to the Court on this preliminary point and to rule upon it was necessary to consider in the first place the origin and nature of the power to commit, and then he stated that
the opinion of Wilmot in Rex v. Almon (1765) Wilmot's Opinions 243 regarded as authoritative on this question. It is referred to by Palles, C.B. in Attorney-General v. Kissane, 32 Ir 220, and I quote the judgment of the Chief Baron from the report of that case at p. 271-the judgment of the Chief Baron set forth in full the opinion of Wilmot, C.J.,
and then Sullivan, P. quoted in extenso the judgment of Lord Blackburn in Skipworth's case (1873) 9 QB 230 at p. 332 and proceeded thus:
The power so defined has been exercised when the occasion required by the Courts in England and Ireland, not only (1) where some contempt has been committed in the face of the Court, or (2) where comments calculated to interfere with the course of justice have been made on cases pending in the Courts, but (3) where scandalous matter of the Court itself has been published.
81. This proposition was not disputed as regards the first and second classes of contempt I have mentioned; but the opinion of the Privy Council in McLeod v. St. Aubyn (1899) AC 549 was relied on as showing that committals for contempt of Court by scandalising the Court itself have become obsolete. In view of the subsequent decisions in Reg v. Gray (1900) 2 QB 36 & Rex v. Editor of the New Statesman (1928) 44 TLR 301, I cannot accept the dictum in McLeod v. St. Aubyn (1899) AC 549 as accurate. In each of these cases the English Courts recognized and exercised the jurisdiction to punish on summary process the editor of a newspaper for contempt of Court in publishing scandalous matter of a Judge with reference to his conduct in judicial proceedings. Hanna, J., in his judgment (at p. 330) touching the question of whether procedure by attachment was one within the competence of the Court, expressed the opinion that it was, and that it was not obsolete or in any way confined, and said that he could not accept the argument that where the contempt was in facie curiae the cases were always dealt with either by the Judge himself or by the Court, nor the view that contested cases of consequential or constructive contempt, that is those other than those committed ex facie curiae, were always dealt with before a jury by indictment.
82. The learned Judge then said:
The position of this power of attachment is made clear by the judgment in Attorney-General v. Kissane, 32 Ir 220. Each of the three procedures was open for contempt of Court. The cases show that for many years before the hearing of McLeod v. St. Aubyn (1899) AC 549 the practice of proceeding by attachment had not been used, so much so that Lord Morris stated in that case that it had become obsolete. However this may be, it is clear that it has been frequently resorted to both in England and Ireland in the succeeding years during which the press has attained such a widespread influence, so that, though it may have been at one time dormant, it had at the date of the Constitution become a living procedure, with all its ancient powers. The latest case is but a few weeks age, Rex v. Editor of the New Statesman (1928) 44 TLR 301, reported in the current Times Law Reports.
83. Meredith, J. although differing from the other members of the Court on the merits of the particular case agreed with the President and Hanna, J., on the question of the extent of the jurisdiction of the Court. In my opinion it cannot be gain said that the Courts of Record have an inherent power of punishing and in a summary way any act done or writing published calculated to bring the Court or a Judge of the Court into contempt or to lower its authority, (i.e., the class of contempt characterised by Lord Hardwicke in St. James's Evening Post Case, Roach v. Garvan, (or Hall) (1742) 2 Atk 469 at p. 471 as scandalising a Court or a Judge). That is part of the common law of England and was so at the time when that law was introduced into India in the eighteenth century, and thence forward administered by the Courts in this country. Thus it comes about that the High Courts in India have inherited or acquired by charter a similar power.
84. It is however the fact that there does not appear to be any precedent exactly on all fours with the present proceedings with the exception of a case to which I shall refer in a moment, but there are as appears from the judgment just delivered by my Lord the Chief Justice, and as already indicated by me, a number of decisions sufficiently close and analogous to the present case to warrant the assumption that the powers of this Court are wide enough to enable it to deal with the respondents herein in a summary way. In my opinion this is essentially an example of a case where it is desirable that action should be taken swiftly and summarily owing to the obstruction to the administration of justice created by the precise nature of the allegations contained in the article complained of and its mischievous effect in the minds of the public and in particular of all litigants and accused persons. Neither Sir Tej Bahadur Sapru nor Mr. S.N. Banerjee was able to place before us a single example of a contempt of Court having been dealt with by way of information or by other method than brevi manu, but on the other hand there is Re Advocate of Allahabad, 1935 All 1 (which furnishes the exception mentioned above) where it was definitely held by the Allahabad High Court that the jurisdiction of the Court to punish for contempt is not confined to cases where the aspersion which is alleged to amount to contempt is a reflection upon a particular Judge or a particular Bench in connexion with the conduct of a particular case, but extends to cases where a general aspersion is made upon the character and capacity of the Court or a Judge, independently of any case. The cases in Re Abdul Hasan Jowhar, 1926 All 623 and Reg v. Gray (1900) 2 QB 36 were relied upon. It happened that Sir Tej Bahadur Sapru appeared also in the Allahabad case as Advocate for the respondent and he appears to have then put forward the same kind of argument as that which he has advanced in the present proceedings before us, an argument largely founded on the dictum of Lord Morris. With regard to this the Allahabad Bench said as follows:
Once it is conceded that to scandalise the Court is a contempt then any publication which scandalises the Court and lowers its prestige is clearly a contempt, even though there is no record that similar publications have been held by the Courts in the past to constitute contempt. As we have already observed, general aspersions upon the character and the capacity of the Court must be comparatively rare and the absence of any report of such cases, in our view, affords no support for the contention of learned Counsel for the opposite parties. Learned Counsel further contended that the remedy where a Court and not a particular Judge has been defamed should not be by way of proceedings for contempt of Court but by criminal proceedings at the instance of the Government Advocate under the provisions of Section 194, Criminal P.C. We are unable to agree with this contention. The fact that proceedings may be directed against a person who has defamed the Courts generally is no reason for holding that he may not be proceeded against for contempt of Court. Criminal proceedings as well as contempt proceedings lie against a person who has committed contempt of Court by indulging in illegitimate criticism of the conduct of a particular Judge, and we see no reason in principle for holding that where a Court generally has been defamed proceedings for contempt of Court do not also lie against the delinquent. We would further observe in this connection that proceedings under Section 194, Criminal P.C., are initiated by the representative of a Government with the previous sanction of the Governor-General in Council or the Local Government. It is for the Government to decide whether such proceedings be instituted or not. If the contention of learned Counsel for the opposite parties is sound, then the High Court would be powerless to protect itself in a case where the grossest allegations against the Courts had been made; but where the Government refused, it might well be for purely political considerations to sanction a prosecution. We are clearly of the opinion that the inherent power of the Court to punish for contempt of Court is a power which is essential in the interest of the administration of justice and that power is not restricted in any degree by the provisions in the Criminal Procedure Code relating to proceedings which may be instituted with the sanction of the Government where the Courts or His Majesty's Judges have been defamed. In our opinion the law upon this matter is not in doubt. It has been clearly enunciated in a number of decisions to many of which we were referred by learned Counsel for the opposite parties and by the learned Government Advocate....
We are therefore clearly of the opinion that neither on general principle nor in a recorded decision is there any support for the contention of the learned Counsel for the opposite parties that the Court is not empowered to punish for contempt where the alleged contempt consists of a general defamation or aspersion of the Court and not of a particular Judge in regard to his conduct of a particular case. Learned Counsel has been unable to cite one single relevant authority in support of his argument, nor has he been able to suggest any cogent reason for differentiating between the cases of a defamation o a particular Judge or a particular Bench and the defamation of the Court generally. The distinction which he has attempted to draw is, in our judgment, clearly illogical and unsound.
85. I respectfully agree with that statement and adopt it as representing a correct view of the law. The objection taken to the jurisdiction of this Court in the present proceedings has therefore no substance in it and in my opinion must be rejected. With regard to the merits of the case I would respectfully adopt the language used by Sir Norman Macleod, C.J., in Emperor v. Bal Krishna, 1922 Bom 52, and to say that the article published on 23rd March was calculated to excite in the minds of the people not only the impression that persons would not get a fair trial at the hands of a Court alleged to be under the influence of the Executive authorities but also a general dissatisfaction with judicial determinations so that the danger was created that the people's allegiance to the laws might be fundamentally shaken and a most painful and dangerous obstruction to the administration of justice erected. The administration of justice within this Presidency has been entrusted to us and we have the power in execution of the trust imposed upon us to provide that such dangers when they arise shall be removed, and in exercising these powers we seek not so much to protect ourselves as to protect the people from the evil which will result if their faith in the authority and justice of our tribunals be impaired.
86. The respondents in this case have made no real attempt to excuse or palliate their conduct. They have simply said in effect 'This article is fair comment and we have done no wrong.' In such circumstances I think we must inflict upon them some punishment which will bring home to their minds the fact that in our judgment they are entirely wrong and also the realisation that their action in publishing the article was in the highest degree improper and deplorable.
87. There can be no reasonable doubt that the publication of the words complained of amounts to a criminal contempt of this Court. To say that
at the present day the Chief Justice and the Judges find a peculiar delight in hobnobbing with the Executive, with the result that the judiciary is robbed of its independence which at one time attracted the admiration of the whole country
means, and can only mean, that for the reasons given, the Judges of this Court are no longer independent or impartial. No one can deny that it is of the utmost importance to the administration of justice that public confidence in the impartiality of the Judges should not be impaired, and nothing is more calculated to destroy their authority than a statement that they are no longer independent. It strikes at the very roots of justice. As was said by Lord Russell of Killowen, C.J., in Reg v. Gray (1900) 2 QB 36, at p. 40, any writing published which is calculated to bring the Judges into contempt or to lower their authority is a contempt of Court. This is a class of contempt which was characterised by Lord Hardwicke, L.C., in St. James's Evening Post Case, Roach v. Garvan, (or Hall) (1742) 2 Atk 469 as that of scandalising a Court or a Judge. The principle cannot be better stated than in the words of the opinion of Wilmot, C.J., a convenient reference to which is to be found in the report of the argument of the Attorney-General in Rex v. Editor of the New Statesman (1928) 44 TLR 301, at p. 302, and is as follows:
The arraignment of the justice of the Judges is arraigning the King's justice: it is an impeachment of his wisdom and goodness in the choice of his Judges, and excites in the minds of the people a general dissatisfaction with all judicial determination and indisposes their minds to obey them; and whenever men's allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the Judges as private individuals, but because they are the channels by which the King's justice is conveyed to the people. To be impartial, and to be universally thought so, are both absolutely necessary for giving the justice that free, open, and uninterrupted current, which it has, for many ages, found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth.
88. The learned and distinguished advocate who has appeared on behalf of accused 1 has relied very strongly upon the statement of Lord Morris in McLeod v. St. Aubyn (1899) AC 549, at p. 561, that though the publication of scandalous matter of the Court itself was undoubtedly contempt, committals for such contempts had become obsolete in England, where Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. But that it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.
89. Obviously the statement that committals for such contempts had become obsolete was not intended to be a statement of the law. The learned Lord had correctly stated the law in the immediately preceding sentences of his judgment. The statement had regard only to the question of expediency. It was limited to England, and qualified by reference to the state of public opinion in that country. The question of expediency cannot be made to depend upon the size of the community or the colour of the population, but upon public standards. If the statement of the learned Lord was intended to be a statement of the law, it went too far. That is made evident by the decisions in Reg v. Gray (1900) 2 QB 36 in the following year and in Rex v. Editor of the New Statesman (1928) 44 TLR 301. The learned advocate felt the difficulty raised by these decisions, and sought to show that they were instances of the other and more common class of contempt, arising from comments upon cases pending in the Courts, wherein a summary remedy was necessary in order to prevent interference with the due course of justice in the trial of those particular cases. But neither of those decisions was in respect of any pending case, and to seek to extend that class of contempt so as to cover comments arising out of cases already disposed of, would be to travel outside the ambit of the principle upon which that jurisdiction is said to be founded.
90. An attack upon a Judge who has already disposed of a case cannot be said to be an interference with the due course of justice in that particular case. But such an attack is calculated to impair his authority when trying cases of a similar class, or his authority generally. Moreover, in Reg v. Gray (1900) 2 QB 36, the criticism of the Judge was not even in respect of the case or the facts of the case which had bean tried, but in respect of advice which the Judge had given to representatives of the press about the way in which they ought to frame their reports. That advice had no more to do with the trial of the case than if the Judge had chosen to advise women to leave the Court, or to complain to those responsible for the Court building that the acoustics were so bad that he could not hear the witnesses. That case therefore was not one of the class mentioned by the learned advocate in which the criticism of the Judge relates to his conduct of the trial. Similarly in Rex v. Editor of the New Statesman (1928) 44 TLR 301 Lord Hewart observed at p. 302, that the meaning of the words complained of was, that a person who held certain views could not hope for a fair hearing in a Court presided over by the learned Judge, not merely that he had acted unfairly in that particular trial. In neither of those cases could it be urged that summary proceedings were necessary because the criticism complained of was calculated to interfere with or obstruct the due course of justice in that particular case. Yet in both cases summary proceedings were held to be the appropriate remedy. In each of those cases the criticism was calculated to impair the authority of the Judge generally; and to destroy public confidence in his impartiality and integrity as a Judge. Surely it cannot be argued that it is a different kind of offence, or a more serious offence to impair the authority of a single Judge than to scandalise the whole Bench of Judges of which he is a member.
91. Nothing can be more serious than to publish statements calculated to diminish or destroy public confidence in Courts of Justice, and no offence calls for or deserves more swift or more summary punishment. The reason why such proceedings are rare nowadays in England is that public opinion and more especially standards of public decency and good conduct in that country for many years past have been such as to render the exercise of this jurisdiction unnecessary. The experience of Courts and Judges in India, especially in recent years, has not been such as to encourage them to allow this jurisdiction to become obsolete. I agree in finding both the accused guilty of contempt. This is not the first time that the second accused, Tarit Kanti Biswas, has been charged with this offence, and in the present instance the offences of both the accused have been gravely aggravated by the omission of any expressions of apology or regret from their affidavits and their unprecedented and unpardonable effrontery in making therein further charges of bias, partiality and unfairness against the Judges to whom has fallen the duty of hearing them in their defence.
92. Far more serious however is the fact that their learned Advocates stated that they had received from the accused definite and specific instructions not to offer to the Court either apology or regret, even in the event of their being found guilty of contempt. In my opinion such an attitude of open and deliberate defiance of the law as interpreted and decided by His Majesty's Judges, on the part of the Editor and Printer of a responsible newspaper, Galls for such sharp and summary punishment of the offenders as will be a warning and deterrent to them, and to others similarly inclined towards such criminal practice, and such as will be a sufficient vindication of the integrity and independence of this Court.
93. In this case the only two points raised in defence in which there appears to be any substance are: (1) that the objectionable passage in the newspaper article merely criticizes the High Court in its administrative capacity, and not in its judicial capacity, and therefore cannot be said to constitute contempt of Court since it does not in any way reflect on the judicial independence of the Court. This construction never occurred to me until suggested by the learned advocates appearing for the accused. A certain colour is however lent to it by the reference to administration at the commencement of the passage complained of, which runs as follows:
We are glad to find that in the Bengal Legislative Council yesterday there was a discussion about the administration of the High Court. Every word o Mr. N.K. Basu was true.
94. Then comes the statement that
the Chief Justice and the Judges find a peculiar delight in hobnobbing with the Executive with the result that the judiciary is robbed of its independence which at one time attracted the admiration of the whole country.
95. It would be far-fetched to construe this as merely referring to the administrative work of the Court, as distinct from its judicial work. No one reading it would so limit its application especially in view of the concluding statement, for it is difficult to suppose that the administration of the Court (about which the public can have little knowledge), can have formerly attracted the admiration of the whole country. The use of the word judiciary also seems to imply reference to the Court in its judicial capacity. Had the administration only been referred to, surely the reference would have been clearly to the lack of independence in the administration of the Court, not in the judiciary generally. There can therefore be no doubt whatever that the writer means what he says, i.e., that the High Court judiciary has lost its independence through hobnobbing with the Executive. Had it not been so, surely the editor would have apologized in the terms that he was sorry that he had expressed himself in such language that this construction could be put upon it, but no such apology has ever been made. The only other point of any substance in the argument that has been addressed to us is that this is a case in which the Court should not have exercised the summary jurisdiction which it admittedly possesses as a Court of Record. The promulgation in a newspaper with a large circulation of such a statement is undoubtedly a contempt of Court of the very worst kind, for its publication obviously would tend to cause the public to lose their respect and regard for the law so administered, and, as stated by Wilmot, C.J.,
to be impartial and to be universally thought so are both absolutely necessary for the giving justice that free, open and uninterrupted current which it had for many ages found all over the Kingdom,
the arraignment of the justice of the King's Judges excites in the minds of the people a general dissatisfaction with all judicial determinations and indispose their minds to obey them.
He maintains that
the real offence is the wrong done to the public by weakening the authority and influence of a tribunal which exists for their good alone.
96. He adds that such conduct is preeminently a proper subject of summary jurisdiction. The same view is expressed by Sir Norman Mcleod in Emperor v. Bal Krishna, 1922 Bom 52. 'Wilmot, J's. undelivered judgment in Rex v. Almon (1765) Wilmot's Opinions 243 has been received with approval in many subsequent cases inspite of Master J.C. Fox's Opinion in 24 Law Quarterly Reports 184, 266, and the criticism of Fletcher, J., in the Irish case of (1818) 13 ER 15 note, in Hachell's Report. Such a sweeping attack on the whole administration of justice by the Court is very different from that fair and reasonable criticism which is always allowable except in connexion with a pending case. It is also very different from a case of constructive contempt, and a discussion of such eases is quite irrelevant. There is, no doubt, abundant authority for the view that contempt proceedings, involving as they do an exceptional interference with the liberty of the subject by an exceptional method, should only be used in cases where the administration of justice would be hampered by the delay involved in proceeding in the ordinary course of law. In this connexion the cases of McLeod v. St. Aubyn (1899) AC 549, Rex v. Davies (1906) 1 KB 32 and Skipworth's case (1873) 9 QB 230 and other cases have been referred to, and it has been argued that the summary procedure can only be used when the contempt has reference to the proceedings in a particular case. Almost all cases of contempt have reference to a particular case, so that it is not surprising that the only case cited in which the summary procedure has been adopted, though the contempt is not connected with a particular case is the case of Re Advocate of Allahabad, 1935 All 1. There are however a number of cases in which the summary procedure has been adopted although the cases with which the contempt was connected had been disposed of before the contempt was committed, for example the case of Reg v. Gray (1900) 2 QB 36 and in this country Re Abdul Hasan Jowhar, 1926 All 623 and In re Satya Bodha Ram Chandra, 1922 Bom 426. In such circumstances the danger of justice being hampered by the delay involved in the ordinary procedure is in no way dependent on the fact that the contempt in question was connected with a particular case.
97. In the present case the contempt complained of would tend to hamper the administration of justice in every case in which the executive were specially interested by diminishing the confidence of the parties in the independence of the judiciary, e.g., in cases of a political character. The only alternative procedure in this country is that under Section 194, Criminal P.C. This procedure has not, I think, been employed in any High Court in cases of this kind of contempt of the High Court. It depends upon the exhibition of information by the Advocate-General with the previous sanction of the Governor-General in Council or the Local Government, and would therefore place the maintenance of regard for the Court entirely in the hands of the Executive. Moreover, in the words of Will, J., in Rex v. Davies (1906) 1 KB 32 at p. 41, it is 'too dilatory and too inconvenient to afford any satisfactory remedy.' There would be much to be said for the procedure under Section 194, Criminal P.C., in a case in which there could be any doubt as to the meaning of the words used, and which had therefore better be left to the decision of a jury, but where, as in this case, there is no ambiguity in the words used, the facts are not disputed, and the accused are thoroughly able and willing to defend themselves in summary procedure, there seems to be no reason why the Court should not adopt it. I think therefore that the Court was entitled in this case to take summary proceedings against the Opposite parties and agree in finding that they are guilty of the contempt charged, and liable to be dealt with severely inasmuch as they have not attempted even a conditional apology for the language used.
98. Order.-Tushar Kanti Ghose, you have been adjudged by this Court to be guilty of contempt of Court by reason of the article that has been complained of. That article was capable of great public mischief. You, Tushar Kanti Ghose, are responsible in law for the publication of that article and you have, in fact, accepted responsibility for it in your affidavit. You have said that you were not there when it was written and that it was inserted in your absence, but that you take responsibility for it; and in this Court you have attempted, as far as you could, to justify it; your duty, if absent from the newspaper office, is to give such general or particular instructions that articles of this nature which could be contempt of Court should not be published. Apparently no such instructions could have been given and you accepted the responsibility for and approve of the article. The Judges of this Court know their duty; they are doing their duty and they will do their duty regardless of the consequences without fear or favour. No apology or regret has come from you and that leaves us only one course, and that is to send you to prison. The sentence and order of this Court is that you be detained in simple imprisonment for a period of three months.
99. Tarit Kanti Biswas: you are the Printer and Publisher of this newspaper and you have a responsibility not to publish such articles. You have made a plea of lack of knowledge of English. That is no excuse. If you cannot perform the duties of your office you ought not to hold that office. As long as you hold that office you must according to law perform the duties of that office. In this case it is obvious that the duties of your office were not performed, or that article would not have been published. YOU were before this Court in 1917 in a case in which you and others were charged with contempt of Court by publishing an article upon the then Chief Justice reflecting on the impartiality of his conduct or administration of justice in this Court. You were on that occasion subjected to a fine. That ought to have put you on your guard and taught you a lesson for subsequent events. Apparently it did not. You adopt the same attitude as the Editor, and you make the same plea. In your case neither apology nor excuse has been offered for your conduct and the Court has only one course which it can take in your case and that is to send you to prison. The order of this Court is that you be detained in simple imprisonment for a period of one calendar month.
Order refusing to grant leave to appeal to Privy Council.
100. (2nd May 1935). This is an application made on behalf of Tushar Kanti Ghose and Tarit Kanti Biswas who were committed to prison on 8th April last in respect, of a contempt of this Court. Tusbar Kanti Ghose was committed to prison for a period of three months and Tarit Kanti Biswas for a period of one month. The committals were in respect of publication of a certain matter in the Amrita Bazar Patrika on 23rd March 1935. Tushar Kanti Ghose was the Editor of the Amrita Bazar Patrika and Tarit Kanti Biswas was the printer and publisher of the same.
101. The application is made or purports to be made under Clause 41 of the Letters Patent of this Court dated 1865. That clause reads as follows:
And we do further ordain that, from any judgment, order or sentence of the said High Court of Judicature at Fort William in Bengal, made in the exercise of original criminal jurisdiction, or in any criminal case where any point or points of law have been reserved for the opinion of the said High Court in manner herein before provided, by any Court which has exercised original jurisdiction, it shall be lawful for the persons aggrieved by such judgment, order, or sentence to appeal to Us, Our heirs or successors in Council, provided the said High Court shall declare that the case is a fit one for such appeal and under such conditions as the said High Court may establish or requite, subject always to such rules and orders as We may, with the advice of Our Privy Council, hereafter make in that behalf.
102. Mr. Banerji, who makes this application, asks for a certificate for a declaration by us that the case is a fit one for appeal. He says that the order was made in the exercise of the original criminal jurisdiction of this Court and that thereby he or his clients come within Clause 41. In my view proceedings for contempt of Court do not come within the phrase 'original criminal jurisdiction of this Court', The power of this Court, which is a Court of Record, to punish for contempt is derived as was pointed out by Sir Barnes's Peacock in the case of Surendra Nath Banerjee (1884) 10 Cal 109 from the common law of England at the time when the Supreme Court was constituted a Court by the Charter. This Court of course succeeded to the jurisdiction exercised by the Supreme Court. It may be well to note that the case, Surendra Nath Banerjee v. Chief Justice and Judges of Calcutta High Court (1884) 10 Cal 109, was a ease in which the writer in a newspaper was held by the Judges of this Court to have committed contempt of Court by scandalizing the Court. He was committed to prison for a period of two months. He did not make any application under Clause 41 of the Charter as is done in this case. He petitioned to the Privy Council to have his case considered and during the course of that matter Sir Barnes Peacock who delivered the opinion of the Board said:
Their Lordships are of opinion that a contempt of the High Court by a libel such as the present, published out of Court when the Court as not sitting, is not included in the words 'offences under the Indian Penal Code', although the contempt may include defamation. Such an offence is something more than mere defamation, and is of a different character. It is an offence which by the common law of England is punishable by the High Court in a summary manner by fine or imprisonment, or both. That part of the common law of England was introduced into the Presidency towns when the late Supreme Courts were respectively established by the Charters of Justice. The High Courts in the Presidencies are Superior Courts of Record, and the offence of contempt, and the powers of the High Court for punishing it, are the same there as in this country, not by virtue of the Penal Code for British India and the Code of Criminal Procedure, 1882, but by virtues of the common law of England: Mc Dermott v. The Justices of British Guina (1869) 5 Moore PC n s 466 at p 497.
103. In my view, having regard to the words used by Sir Barnes Peacock particularly those 'such an offence', i.e., scandalizing a Court 'is something more than mere defamation and is of a different character' it is clear that proceedings for contempt of Court-a Court of Record, at any rate, this Court-are not made or done in the exercise of original criminal jurisdiction within the meaning of Clause 41. These proceedings for contempt of Court are of a peculiar nature; though it may be that in certain aspects they are quasi criminal in any view they are not exercised as part of the original criminal jurisdiction of this Court. Consequently the application must fail.
104. But I will consider the matter one step further. If it should be contrary to my view that proceedings for contempt of this Court are made or done in the exercise of its original criminal jurisdiction it seems to me that this Court would not, even in such a case, having regard to the decision of the Privy Council, declare under Clause 41 that this case is a fit one for appeal to the Privy Council. This case is in its essentials a similar case to that of Surendra Nath Banerjee's. In that case Sir Barnes Peacock-I am now quoting from p. Surendra Nath Banerjee v. Chief Justice and Judges of Calcutta High Court (1884) 10 Cal 109 says:
Their Lordships having decided that the libel was a contempt of Court, and that the High Court had jurisdiction to commit the petitioner for a period of two months, the case is not a proper one for an appeal to Her Majesty-. In Rainy v. The Justices of Sierra Leons (1872) 8 Moore PC 47 at p. 54, upon an application for leave to appeal to enable the petitioner to get rid of certain fines imposed upon him by the Court of Sierra Leons for contempt of Court, it was said: 'It is the opinion not only of the members of the Committee who 'heard' the petition, but also of the other members, who usually 'attend' here to whom the petition has been submitted, and we have had 'the benefit of their judgment as well as our own that we cannot interfere with such a subject. In this country every Court of Record is the sole and exclusive judge of what amounts to a contempt of Court.' That case was referred to as an authority by the Judicial Committee in the case of Mc Dermott v. The Justices of British Guina (1869) 5 Moore PC n s 466. In the latter case an application was made ex parte for leave to appeal from an order of the Supreme Court of Civil Justice in British Guiana, by which the petitioner was, for a contempt of Court in publishing certain libels commenting on the administration of justice, and upon one of the Judges of the Court, committed to jail for a period of six months or unto further orders: see S.C., p. 490, and In the matter of Mc Dermott (1866) 4 Moore PC NS 110, at p. 120. Leave to appeal was granted, without prejudice to the question of the competency of Her Majesty in Council to entertain an appeal from an order of a Court of Record inflicting punishment by fine or imprisonment for a contempt of Court, which question was to be open to argument on the hearing o the appeal. The case came on for argument, and it was contended by the Solicitor-General, that the leave to appeal ought not to have been granted, as a Court of Record is the sole judge of what constitutes a contempt. He stated however that he was prepared to support the order upon the merits, but he was not called upon to do so. In delivering the opinion of the Judicial Committee Lord Chelmsford. after stating that the leave to appeal was conditionally granted, said the respondents might have come in to discharge the order upon the very ground which had been taken, namely that there could Be no appeal against an order of a Court of Record committing a person for contempt, and that, in order to support the propriety of the leave to appeal, the appellant must show either that the Court was not a Court of Record, or that, if it was a Court of Record, yet that there was something in the order committing the appellant which rendered it improper, and therefore the subject of appeal. Then alter deciding that the Court of Sierra Leone was a Court of Record, his Lordships says (498):
'Not a single case is to be found, where there has been a committal by one of the Colonial Courts for contempt where it appeared clearly upon the face of the order that the party had committed a contempt, that he had been duly summoned, and that the punishment awarded for the contempt was an appropriate one, in which this Committee has ever entertained an appeal against an order of this description.' Again, after referring to the authorities and amongst others to Rainy v. The Justices of Sierra Leons (1872) 8 Moore PC 47, his Lordship concluded by saying: Under these circumstances their Lordships entertain no doubt whatever as to the propriety of deciding that in this case the leave to appeal ought not to have been granted; that the Supreme Court of Justice was a Court of Record; and that as a Court of Record, it had power to commit for the particular contempt. As their Lordships do not enter into the merits of the case, they will say nothing as to the character of the libel upon which the Court thought it proper to commit the publisher for contempt.' Acting upon these authorities, and holding that the High Court had jurisdiction to commit the publisher of the libel in question for contempt, their Lordships will say nothing as to the character of the libel, or as to the extent of the punishment awarded. They will humbly advise Her Majesty to dismiss the petition.
105. Mr. Banerjee had made his application on the ground that this Court has no jurisdiction to commit the two applicants for contempt. That it has such jurisdiction is clearly laid down by their Lordships of the Privy Council in the case of Surendra Nath Banerjee (1884) 10 Cal 109. Mr. Banerjee has advanced a further argument which is based upon some words of Lord Morris in the case of McLeod v. St. Aubyn (1899) AC 549. The head-note is:
Contempt of Court may be committed by publication of scandalous matter respecting the Court after adjudication as well as pending a case before it. In England committals for such contempts have become obsolete in small colonies consisting principally of coloured populations they may still be necessary in proper cases: But held, that where the appellant was neither printer nor publisher nor writer of such scandalous matter, but had innocently lent the paper containing it to a friend without knowledge of its contents, he was neither constructively nor necessarily guilty of contempt of Court.
106. In that case Lord Morris at p. 561 says with reference to summary procedure for contempt:
It is a summary process, and should be used only from a sense of duty and under the pressure of public necessity, for there can be no landmarks pointing out the boundaries in all cases. Committals for contempt of Court by scandalising the Court itself have become obsolete in this country.
107. Then he goes on to say:
Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.
108. Lord Morris then goes on to consider the question whether there was contempt of Court in a man in lending a newspaper which contained scandalous matters, and he decides that it was not.
109. Now, Mr. Banerjee says that the words 'committals for contempt of Court by scandalising the Court itself have become obsolete' indicate that there is no longer jurisdiction in this Court to exercise this summary procedure. That argument of course was raised when these applicants were before the Court and was dealt with in the judgment which was then delivered. But with deference to the argument of Mr. Banerjee I would like to point out that statement 'committals for contempt of Court by scandalising the Court itself have become obsolete in this country' is a statement of fact relating to England and Wales. It is a statement of fact which is proved to be incorrect because in the following year there was the case of Reg v. Gray (1900) 2 QB 36 in which the Courts in England punished the writer of a certain matter in a newspaper which scandalised a Judge. Again in 1928 the Courts in England punished the editor of the New Statesman in respect of some matter which was considered to be scandalising a Judge of the High Court in England. So as a statement of fact that is incorrect. Again in this country in 1917 there was the case, In the matter of the Amrita Bazar Patrika,1918 Cal 988, in which an attack was made in the newspaper upon the conduct of the Chief Justice of this Court. There the delinquent, who happened to be one of the applicants in this case, was punished by this Court for a contempt that he had committed. Under these circumstances it seems to me that the argument which Mr. Banerjee has endeavoured to build on those lines from the judgment of Lord Morris in McLeod v. St. Aubyn (1899) AC 549 fails. In my opinion, having regard to the decision of their Lordships of the Privy Council in the ease of Surendra Nath Banerjee (1884) 10 Cal 109 it would not open to this Court to declare that this case is a fit case for appeal to His Majesty in Council, if, indeed, such leave could be given at all in such a case as this under Clause 41, Letters Patent, of this Court of 1865. In my opinion, this application must be dismissed.
110. I entirely agree with the views expressed by my Lord the Chief Justice. In my opinion the order or sentence made by this Court on 8th April last was not an order or sentence made in the exercise of its original criminal jurisdiction. Therefore, this matter is not one which falls within the purview of the provisions of Clause 41, Letters Patent, of this Court dated 1865. The proceedings for contempt of Court of summary nature are proceedings derived from the Common Law of England. There is inherent right to take such proceedings in this Court by virtue of its position as a Superior Court of Record. Moreover, the power of this Court to exercise jurisdiction of a summary character in a case of contempt was conferred or affirmed by the Charter under which the Supreme Court was originally established: which power this Court has inherited. The power to punish for a contempt of Court is a power sui generis. In my opinion it is not a power which is or can be exercised under the ordinary criminal jurisdiction of the Court.
111. The judgment of Sir Barnes Peacock in Surendra Nath Banerjee v. Chief Justice and Judges of Calcutta High Court (1884) 10 Cal 109 in my view puts this matter beyond all question whatever and indicates that when this Court as a Court of Record thinks it fit to exercise summary jurisdiction and under that jurisdiction punishes for a contempt of Court it is not open to the person concerned to ask this Court for leave to appeal to His Majesty in Council. With regard to the observation of Lord Morris in McLeod v. St. Aubyn (1899) AC 549, as I pointed out in the judgment which I gave when this matter was before the Court on 8th April last, that observation is clearly not only in the nature of an obiter dictum but a statement which could only have been intended to express the opinion of the learned Judge with regard to the state of fact existing in England at the time the observation was made. But whether one takes that observation as a statement of fact or even as an expression of opinion with regard to the state of the law it is obvious from the subsequent events from the proceedings and decisions in cases which have occurred since the time of Lord Morris that observation even as a statement with regard to the law was not accurate. In any event, as the Chief Justice has already pointed out, Lord Morris was speaking solely as regards the state of things in England. That proposition has no reference whatever either to the state of fact or to the state of law existing in India.
112. In my opinion it is abundantly clear from the judgment in Surendra Nath Banerji's case (1884) 10 Cal 109 that summary proceedings for a contempt of Court is not only competent but the decision, that is to say, judgment, order and sentence given in such proceedings must be taken to be final and not open to appeal. I think this application for leave must be refused.