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In Re: P.C. Sen, Chief Minister of West Bengal - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberMatter No. 375 of 1965
Reported inAIR1966Cal411,1966CriLJ883,70CWN579
ActsConstitution of India - Articles 20 and 215; ;Code of Criminal Procedure (CrPC) , 1898 - Section 1(2)
AppellantIn Re: P.C. Sen, Chief Minister of West Bengal
Advocates:E.R. Meyer and ;R.N. Bajoria, amicus curiae, ;Adv. General, ;Sankar Das Banerjee, Jn. Standing Counsel, ;Siddhartha Roy, ;B.C. Basak, ;Subimal Roy and ;Soumen Bose, Advs. for ;Chief Minister, ;Sachin
Cases ReferredState v. Padma Kant Malviya
- orderb.n. banerjee, j.1. in this rule, p. c. sen, the chief minister of west bengal, stands charged with exhibition of contumacious conduct towards this court, under circumstance hereinafter stated. 2. on november 18, 1965, the governor of west bengal made an order known as 'west bengal milk products control order 1965', in exercise of the powers under sub-rules (2) and (3) of rule 125 of the defence of india rules 1962. the declared object of the order was that in the opinion of the governor it was necessary and expedient to regulate the manufacture of milk products (meaning thereby chhana, kheer and weets having as an ingredient chhana or kheer or both) and increase supplies of milk in the fluid form, a commodity essential to the life of the community. the control order was made.....

B.N. Banerjee, J.

1. In this Rule, P. C. Sen, the Chief Minister of West Bengal, stands charged with exhibition of contumacious conduct towards this Court, under circumstance hereinafter stated.

2. On November 18, 1965, the Governor of West Bengal made an order known as 'West Bengal Milk Products Control Order 1965', in exercise of the powers under Sub-rules (2) and (3) of Rule 125 of the Defence of India Rules 1962. The declared object of the order was that in the opinion of the Governor it was necessary and expedient to regulate the manufacture of milk products (meaning thereby Chhana, Kheer and weets having as an ingredient Chhana or Kheer or both) and increase supplies of milk in the fluid form, a commodity essential to the life of the community. The Control Order was made applicable to Calcutta, areas comprised in certain specified municipalities and Chandernagore. Power was reserved to make the Control Order applicable to other areas by notification. In a sense, the Control Order mentioned above was the successor of a previous Control Order known as the West Bengal Chhana Sweets Control Order 1965, which was condemned and quashed by this Court, on November 16, 1965.

3. On November 22, 1965, Sm. Kusum Kumari Ghosh and three others, carrying on business in co-partnership, under the name and style of Messrs. Ramlal Ghosh and Grandsons, as manufacturers of milk products, challenged the validity of the Milk Products Control Order and obtained a Rule against the State of West Bengal and the Secretary, Department of Animal Husbandry and Veterinary Services, being matter No. 369 of 1965. The Rule was made returnable on November 26, 1965. There was no interim injunction granted at the time when the Rule Nisi was issued but liberty was given to the petitioners, in Matter No. 369 of 1965, to renew the prayer for interim injunction on the returnable date.

4. It is necessary for me, at this stage, to refer to some of the grievances made by Sm. Kusum Kumari Ghosh and others, in their petition. Apart from the grievance that the impugned Control Order was illegal and unconstitutional, they made the following further griev-ances:

Para 10. 'On November 16, 1965, *** Mr. Justice Banerjee delivered judgment condemning the said impugned West Bengal Chhana Sweets Control Order as an unreasonable piece of delegated legislation, made in arbitrary exercise of power under Rule 125 ***'

Para 18.'*** that the respondents mala fide and in complete and utter disregard of the said judgment and order of **Mr. Justice Banerjee and without reading or considering the same vindictively published the saidpurported order in anger and hot haste beingrecklessly careless as to the consequences thereofand without giving their minds to the comprehension and their wills to the discharge of theirduty towards the public. ***'

Para 19. 'Your petitioners and other traders, who carried on business only in milk products meaning Chhana, Kheer and other sweets having as an ingredient Chhana, Kheer or both including Khoa Kheer, are facing complete ruin by reason of the total prohibition of their trade, commerce and intercourse.

Para 20. '*** that the saidimpuged order has not only prohibited the trade,commerce and intercourse of your petitionersbut also its movement. By the said impugned order your petitioners are not only prohibited to manufacture etc. but also to supply or to transport the same and/or to deliver the same to various customers within and outside Calcutta as well intra the State of West Bengal or outside of West Bengal ***'

Your petitioners crave leave to refer tothe copy of the Jugantar dated November 21, 1965, wherein it would appear that about 500 to 600 maunds of Chhana and 500 maunds of Khoa Kheer comes to the Calcutta Market daily from Patna, Bhagalpore, Delhi and Kanpore which has also been stopped by reason of the said impugned order.

* * * *Para 24. *** that there wasnot nor there is any material before the Governorof West Bengal to form the alleged opinionand/or that the said purported opinion was notreasonably formed. Your petitioners state thatthe Government did not apply its mind and assucli the said impugned order is a colourable andmala fide exercise of usurped power.

Para 32. *** that accordingto the newspaper report in the Statesman, datedNovember 20, 1965, there are about 8,000 shopsin Calcutta and 4,000 more in the neighbouringareas. These employ 50,000 men. Presuming thateach employee maintains a family of 4, at least200,000 people would be affected by the saidimpugned order.'

On November 25, 1965, the day preceding the returnable date of the Rule, the Chief Minister broadcast a speech, in the Bengali language, from the Calcutta Station of the All India Radio, in justification of the West Bengal Milk Products Control Order. Extracts from the speech appeared in certain newspapers, including the Statesman and the Amrita Bazar Patrika, in their respective issues of November 26, 1965. The report of the speech as appearing in the Statesman is set out below:

''Discussing the implications of the West Bengal Milk Products Control Order and its impact on sweet shops, the Chief Minister Mr. P. C. Sen, said in a broadcast on Thursday night that there was no reason why the 39,000 workers employed in about 8,000 shops should be retrenched.

The new order, Mr. Sen said, should not affect these workers because most of the shops also sold salted edibles and dahi as well as sweets which did not require Chhana. The demand for such sweets would naturally increase and as such there was no reason for retrenchment. He gave an assurance that for preparation of such sweets permits for purchase of larger quantities of sugar would be given to the shops. The middlemen who brought Chhana to the Calcutta Market would find better employment in the transport of milk from rural producers to the chilling stations. The quantity of milk collected by the Government was increasing steadily and soon at least 1000 milk depots would be opened in and around Calcutta, he said. The Government would employ about 4,000 people in these depots and those workers who were retrenched from sweet shops would find alternative employment with the Government. Mr. Sen said, that the new order would actually be a boon not only to consumers and producers but would also solve the problem of milk scarcity in the State. The Government had tor some time past been considering the imposition of total ban on the preparation of milk-based sweets. Since the ban on sandesh alone did not result in increasing the milk supply to the desired extent the ban on the other milk based sweets was found imperative. The total collection of 65,000 litres or even 100,000 litres was inadequate and as such serious attention was paid to the matter and it was decided to ban a number of milk products, Mr. Sen said. But it was permissible under the new order to prepare milk products like dahi, cream, icecream, chocolate, milk-powder, baby food, condensed milk etc.

All these items, he said would involve less than 15% of the total quantity of milk available and moreover there would be no wastage of valuable ingredients of milk in the preparation of these items. Tt was expected that as a result of the new order an additional quantity of about 134,000 litres of milk would be available for consumers.'

At the sitting of this Court on November 29, 1965, Mr. Sushil Kumar Biswas, Advocate, produced copies of the above mentioned issues of the Statesman and Amrita Bazar Patrika, drawing my attention to the substance of the speech as published in the said two newspapers and characterised the said speech as a contumacious one, inter alia, on the grounds that the speech

'(a) was likely to prejudice this Court and/or the public against the cause of the petitioners in Matter No. 369 of 1965 above referred to, and may compel or induce the petitioners to discontinue the action, or

(b) was likely to have the pernicious consequence of prejudicing the minds of the public against the petitioners in Matter No. 369 of 1965, or

(c) was likely to have the effect of mis-representing a piece of illegal and improper Control Order as a legal and a proper Control Order, before this Court had the opportunity of deciding the question in Matter No. 369 of 1965 and thereby deter other persons with similar cause of action from coming to the Court for relief.'

On the above grounds Mr. Biswas prayed that a Rule for contempt of this Court do issue against Mr. P. C. Sen, the Chief Minister. On consideration of the submissions made by Mr. Biswas, there was a Rule issued upon the Chief Minister of West Bengal, inter alia, in the following language:

'Let a Rule issue calling upon Mr. P. C. Sen, the Chief Minister of West Bengal, to show cause why he should not bo dealt with for contempt of Court on grounds as stated above and why other or further order or orders should not he made against him by this Court as may seem fit and proper.

This Rule is made returnable on the 23rd December, 1965, an which dale the alleged contemner is to appear before this Court either personally or through an Advocate at 10.30 a.m.

Let a copy of the petition in Matter No. 369 of 1965 and extracts of his speech as published in the Statesman and the Amrita Bazar Patrika he forwarded to he alleged contemner along with the Rule.'

On the returnable date, the learned Advocate General assisted by Mr. Sachin Chaudhuri and several other learned Counsel appeared to show cause on behalf of the Chief Minister, By arrangement amongst the Counsel, Mr. Chaudhuri took the lead for the day. He stated that the Chief Minister did not like to use any affidavit in this matter and that it was not necessary to give any direction as to affidavits. He look up a non-committal stand in respect of the speech by the Chief Minister, that is to say, he did not admit the correctness of the substance of the speech, as appearing in Press reports, nor did he show his preparedness to produce the full and correct text of the speech. According to Mr. Chaudhuri, it was necessary for this Court to prove the speech, if this Court wanted to proceed further. Without prejudice to his noncommittal stand, he contended that the text of the speech, as reported by the Press, did not amount to contempt of Court. He lastly contended that in the absence of an affidavit by the Registrar, Original Side of this Court, drawing my attention to the Press reports and stating that the speech was contumacious, the Rule should be recalled without more. Since the Rule had been issued suo motu and since I wanted assistance from the bar, at the hearing, I enquired of the learned Advocate General whether it would be possible for the State Government to engage an Advocate for the purpose. The learned Advocate General could not give me an assurance. I therefore called upon Mr. E. R. Meyer, a well-known Counsel of this Court, to act as amicus curiae. This he willingly agreed to do, in the best tradition of the bar.

5. Regard being had to the stand taken by Mr. Chaudhuri I passed the following order on that day:

'Mr. S. Choudhury appearing for the respondent Chief Minister states that the respondent does not like to use any affidavit showing cause. It is not, therefore, necessary for me to give directions as to affidavits. Let the matter be fixed for hearing on 10th January, 1966, top of the list irrespective of part heard. Let a subpoena, forthwith issue upon the Station Director, All India Radio, Calcutta (Akashbani, Kalikata) calling upon him personally to produce before this Court the record of the speech stated to have been broadcast by Mr. P. C. Sen, Chief Minister of West Bengal, on November 25, 1965 and all papers, documents and registers concerning or relating to that speech before this Court, on January 10, 1966, at 10-30 A.M.

Let it be recorded that Mr. E. R. Meyer Advocate, has, at my request, consented to act as amicus curiae in this matter. Let a copy of my order dated November 29, 1965 and the Rule issued by this Court be forthwith supplied to Mr. Meyer.''

After this Mr. Chaudhuri no more appeared in this matter, possibly because of his well-known preoccupation elsewhere.

6. On January 10, 1966 the Station Director, All India Radio, appeared before this Court, with records of the speech broadcast by the Chief Minister on November 25, 1965. The teamed Advocate General who appeared for the Chief Minister, took a preliminary objection to the effect that this Court had no jurisdiction to examine the Station Director and the records produced by him, for the purpose of having the speech brought on the record of this Rule. Thereupon, I made the following order on that day:

'The Station Director, All India Radio, is present in Court with the records of the speech, which is the subject matter of this Rule, pursuant to a subpoena issued by this Court. The learned Advocate General, appearing for the Chief Minister, the alleged contemner, takes the preliminary objection that this Court has no jurisdiction to examine the Station Director and his records for the purpose of having the speech, reported to have been broadcast by the Chief Minister over the All India Radio, on November 25, 1965, brought on the record of this Rule. He is also not in a position to state now whether the Chief Minister read from a written text or delivered an extempore speech. He also says

that the Chief Minister does not remember exactly the contents of his speech. In these circumstances, subject to such objection as may be taken by the learned Advocate General hereafter, I have decided to examine the Station Director to ascertain what speech, if any, of the Chief Minister was broadcast over the All India Radio, on November 25, 1965, touching upon the subject matter of this Rule. If ultimately I uphold the objection taken by the learned Advocate General, I may not take into consideration the text of the speech which may now be brought on the record. Further, I desire the learned Advocate General to inform this Court by 2 O'clock today, whether the Chief Minister did read out a prepared speech and also whether he will be willing to produce that writing before this Court, if the same is in his possession or office. I express this desire without prejudice to all just exceptions that the learned Advocate General may take.'

Thereafter, the Station Director of the All India Radio was examined as a witness. It appears from his evidence, that the Director of Information, Government of West Bengal, had asked the All India Radio office to send a recording equipment to the Assembly Chamber for the recording of a 'talk' to he delivered by the Chief Minister on November 25, 1965. The requisition was complied with and the 'talk' delivered by the Chief Minister was recorded on a portable tape recorder. The tape, on which the 'talk' was recorded, was produced by him and was exhibited. He made known to this Court the names of the officers who had the talk recorded and also of those who had the custody of the tape after the recording, at the time of the broadcast of the 'talk' and thereafter. He also named the officers who had worked for the broadcasting of the 'talk'. He produced the registers concerning the recording of the talk and its broadcasting.

7. The tape was played before me on a tape recorder and the full text of the Bengali talk was taken down in shorthand, by two shorthand writers, loaned to this Court, at my request, by the Speaker of the West Bengal Legislative Assembly. What they took down, they transcribed in Bengali typed script and submitted copies thereof to this Court under my order, dated January 10, 1960, which I set out below:

'This Court has no shorthand writer in Bengali. Mr. S. Roy, one of the learned Counsel for the Chief Minister, agreed to convey my request to the Speaker, West Bengal Lelislative Assembly, for loan of a couple of stenographers, capable of taking down in shorthand the Bengali speech, said to have been delivered by the Chief Minister, and recorded on a tape, which is being played in this Court by an officer of he Calcutta Station of the All India Radio, under he supervision of the Station Director. This he did. Let it be recorded that the Speaker of the West Bengal Assembly has been kind enough to send a couple of shorthand writers in Bengal. They were sworn before this Court to take down the speech, as played on the tape recorder, in Bengali script, faithfully and carefully. This they have done. They are directed to submit to this Court three type-written copies of the speech by 10-30 A.M. to-morrow.'

I also examined the officers named by the Station Director, namely, Kumari Ratna Mukherjee, an Assistant Engineer, Sukumar Roy, a programme Executive, Mani Gopal Ghosh, a transmission Executive and Dilip Ghosh, an Announcer in Bengali. They corroborated the evidence of the Station Director, proved the tape on which the talk by the Chief Minister stood recorded and also the books and registers concerning the recording and the broadcasting of the talk as recorded on the tape.

8. At the sitting of this Court, on January 14, 1966, the learned Advocate General made the statement that the Chief Minister read out from a written text, when his speech was being recorded on the tape, which text, however, he could not trace and therefore pleaded his inability to produce. The learned Advocate General further stated that the Chief Minister did not also remember whether he read out the prepared text word by word or made certain alterations or additions here and there in course of his reading. I had the statements recorded in my order dated January 14, 1966.

9. On the same day, I examined as a witness, Mr. A.K. Mukherjee, Director of Information, Government of West Bengal, who had also been named by the Station Director, All India Radio. He deposed that the speech was 'drafted' by the Secretary, Department of Animal Husbandry in the English language and the Bengali rendition thereof was clone by himself. Dr. Bhattacharjee and some of his staff. He further deposed that he made over a copy of the Bengali rendering of the speech to an All India Radio Officer. He admitted that the speech was correctly recorded on the tape.

10. The Bengali type-script of the taperecorded speech, as prepared by the Bengali Shorthand Writers mentioned hereinbefore, was translated into English by a Court Translator. The speech in Bengali and also the English translation thereof were marked Ex. J. It is necessary for me to take into consideration certain passages from the speech, which I set out below:

'On November 18, 1965 last, the WestBengal Milk Products Control Order was Promulgated.'

* * * *It is because the residents of the areas in which this order has been in force, found i! extremely difficult to procure milk that this order has had to be promulgated in those areas. In fact the whole or West Bengal suffers from acute scarcity of milk. Where as the daily per capita supply of milk in the Punjab is 17 ounces, in U. P. 7 ounces (and) in Behar 4 ounces, in West Bengal it is even less than 3 ounces per capita

* * * *According to the Science relating to nutrition a person requires at least 8 ounces of milk per day. Hence to prepare any food with milk in our West Bengal is indeed, tantamount almost to a prime. It is because it became difficult to get hold of liquid milk in the city of Calcutta and the neighbouring urban areas that this control order has at present come into force only in those areas. If necessary, the Government will extend this control order by stages to other areas as well in due course.

It has been found that the supply of liquid milk has gone up in the areas in which the previous chhana made Sweets Control Order ('chhanajata mistannyadrabya Niyantran Adesh'. was promulgated. **** The quantity of milk collected from different sources in Calcutta increased to 2 lakhs and 61 thousand liters from 2 lakhs and 12 thousand litres. This volume of milk supply (how-ever), constitutes 41% of the total demand. This supply could have been augmented much more if powder milk could be obtained in sufficient quantity, from foreign countries. But in view of foreign exchange difficulties, the Government of India curtailed the import of powder milk and as a result thereof great inconvenience was felt. In the greater Calcutta areas, our total demand of milk at present is at least 6 lakhs and 30 thousand litres. Hence just now a big gap remains between the demand and the supply. Indeed for sometime past, the question of completely banning the preparation of sweets from milk products was in the contemplation of the Government. But they thought of doing it by stages. It was only when after promulgation of the order banning Sandesh only, it was found that it was not adequate for achievement of the main object

*** that special importance was attached to the matter It was decided that the ban will nave to be imposed on all kinds of sweets whatsoever prepared with milk products--Chhana and khir. Under the new order, curd, cream, icecream, chocolate, powder milk, baby food, condensed milk etc. made from milk can be prepared. Only 15 per cent of the milk which is now available in liquid form is necessary for the preparation of these things. Moreover there will be no wastage of valuable nutritive contents of milk in the process of preparation of all these products. It is hoped that under this new control order at least an additional quantity of nearly 1 lakh 34 thousand litres of liquid milk will be available to the citizens. ****

* * * *The residents of Calcutta will now be in aposition to secure larger quantities of milk thanbefore from the owners of cows and buffaloes.People living in other municipal areas will now be able to get more milk than before from themilkmen of their respective areas.

* * * *The Government have considered the question of a few employees of sweetmeat establishments being thrown out of employment as a result of promulgation of this new order. There are about seven thousand sweetmeat shops in the city of Calcutta and the number of persons employed in them is nearly 35000, The number of sweetmeat shops in other towns is about 1000 and the number of persons employed in them is approximately 4000. Hence the (total) number of employees in all those sweetmeat establishments comes to about 39000. We should bear in mind that almost all these sweetmeat shops prepare salted (nonta) variety of edibles. ** Besides, curd is also sold by those shops which also sell various kinds of sweets that do not all require chhana or khir (for their preparation). The number of such sweets is not very small.

* ** *As a result of the ban on sweets prepared with chhana and khir, the demand for other kinds of sweets will certainly go up and if the sweetmeat dealers so desire, they can be free to prepare those sweets in adequate quantities. Of course they wilt require more sugar, ata and flour. The Government considers that their reasonable demands can be met. If in spite of the increase in the demand for other sweets, a number of workers become unemployed, the Government is prepared to employ them in these depots.

* * * *Those workers who had until recently been bringing milk and chhana to Calcutta will be able to supply from now on milk to the milk collection centres of the Government.

* * * *The trouble taken by me to ascertain the exact text of the speech broadcast by the Chief Minister ultimately proved to be much ado about nothing because later on the learned Advocate General admitted that Ex. J was the full and correct text of the speech by the Chief Minister, which was broadcast over the All India Radio.

11. I need notice, at this stage, another admission made by the learned Advocate General. At first he was not prepared to admit that the Chief Minister was aware of the pendency of Matter No. 369 of 1965 (Sm. Kusum Kumari Ghosh v. The State of West Bengal) at the time when he broadcast the speech. But towards the close of his argument, the learned Advocate General made the admission that the Chief Minister has constructive knowledge of the pendency of the Rule. I had both the admissions recorded, by an order dated March 1, 1966, which I set out below:

'So that there may not be any misgiving or misunderstanding about the scope of the argument advanced by the learned Advocate General on behalf of the respondent Chief Minister, let the two admissions made by the learned Advocate General, in course of his argument, he recorded, namely,

(a) that the Chief Minister delivered the speech, which is marked Ex. J, over the All India Radio on November 25, 1965;

(b) that although the Chief Minister might not have actual knowledge of the pendency of Matter No. 369 of 1965 Smt. Kusum Kumari Ghosh and Ors. v. State of West Bengal and Anr. on the day he delivered his speech, he had constructive knowledge of the same, because the Rule had already been served upon the State Government and the Secretary of the Department of Animal Husbandry.'

12. After the close of the argument by learned Advocate General on behalf of the Chief Minister and after the close of the address by Mr. Meyer as amicus curiae, Mr. Sankar Banerjee wanted to follow on the learned Advocate General. At that stage, Mr. Banerjee filed an affidavit, affirmed by the Chief Minister on March 4, 1966, the material portion of which reads as follows:

'Para 3. With reference to the said Rule I say that my radio speech dated November 25, 1965 which was approved by me was delivered in the circumstances stated hereunder.

* * * *Para 5. Immediately upon the promulgation of the said order, however, I came to know that certain persons had started publicly propagating the view that far from achieving the said objects, the said Order will not only reduce the supply of fluid milk in the said area but also displace numerous persons and result in the unemployment ol many.

* * * *Para 7. As the Chief Minister of the State, I came to know that the said propaganda had misled certain sections of the people.

* * * *Para 8. Taking advantage of the said situation, attempts were being made to commence a political agitation against the State Government for having promulgated the said Order.

Para 9. In the circumstances and particularly with a view to preventing widespread agitation in connection with the said order, I thought it to be my duty as the Chief Minister of this State to forthwith explain to the people the policy underlying and the reasons for promulgating the said Order.

Para 10. Having regard to the circumstances stated herein above, I could think of no other expeditious or efficient manner for approaching the people than by talking to them over the Radio which in fact I did.

* * * *Para 12. I had no intention whatsoever of either showing any disrespect to this Hon'ble Court or interfering in any manner with the due course of the administration of justice nor did I anticipate that my said speech could have any such effect.

Para 13. In any event, although I had come to know above the issue of the main rule in Matter No. 369 of 1965 by this Hon'ble Court but I had no knowledge of the details. I was unaware about the allegations in the said petition at the time I made the said speech. It was never my intention to discuss any pending case or the merits thereof nor did I in fact do so.'

13. I have given a fairly long resume of the progress of he case, before this Court, in order to emphasise upon the marked in decision with which the case was argued by different learned counsel appearing for the Chief Minister. Mr. Sachin Choudhuri, appearing for the Chief Minister did not want to use any affidavit. He would admit nothing. He contended that the speech, if any, by the Chief Minister and text thereof would have to be proved by this Court, if this Court wanted to proceed further in the matter. The learned Advocate-General started similarly but at last made the two admissions, to which reference has already been made. Mr. Sankar Banerjee, who took charge of the matter last of all, conceded, in his fairness, that the decision not to use an affidavit explaining the circumstances in which the speech had been made was not right and tried to make amends by filing such an affidavit. Whether the conduct of the case in the above manner aggravated the contempt, if any, I shall consider later on.

14. Now, before I take up for consideration the arguments advanced by the learned Advocate-General, I need remind myself that the power of committal tor contempt must be wielded with the greatest of care and caution, should be exercised with the greatest of reluctance and the greatest of anxiety and only with the object of seeing that the dignity and authority of the Court be not impaired. At the same time, I need also remind myself that, in this country, Courts derive their authority from the Constitution which the people of this country have themselves adopted, enacted and given unto themselves and hold it in trust for the security and benefit of the people. The power that Judges are called upon to exercise is but the authority of the people themselves, vested by the Constitution, in Law Courts. Contempts against Law Courts are insults to the authority of thepeople and their Constitution and not to their humble agents, the Judges. Wherever there is a substantial exhibition of such contumacious conduct towards Law Courts, Judges must uphold the Constitution and the majesty of Courts. This view was stated by Willes, J. in Ex parte Fernandas, (1861) 10 CB (NS) 3 at p. 56, in most realistic language:

'I take leave to say that I am not conscious of the vulgar desire to elevate myself or the Court of which I may be a member, by grasping after a pre-eminence which does not belong to me; and that I will endeavour to be ever valiant in preserving and banding down those powers to do justice and to maintain truth, which for the common good, the law has entrusted to the Judges.'

This view has never been dissented from and never will be, so long as judges are alive of their position. It is with this remindedness that Iproceed to examine the arguments advanced by the learned Advocate-General.

15. According to the learned Advocate-General, a Judge is different from a juryman; he has, by his training, no difficulty in putting out of his mind matters which are not evidence in the case. Since the Writ Petition by Smt. Kusum Kumari Ghosh and others against the Slate of West Bengal and another (Matter No. 369 of 1965) is not triable with the aid of jurors, the speech by the Chief Minister, even if prejudicial to the cause (which, however, he denied) would neither interfere nor tend to interfere with administration of justice by this Court nor influence the mind of the Judge. In support of this contention, he relied on the observations by Lord Parker, C. J. in Reg v. Duffy, (1950) 2 QB 188 and by Buckley, J. in Vine Products Ltd. v. Green, (1965) 3 WLR 791.

16. I shall presently deal with the two cases to show that they do not lay down an absolute or a universally accepted legal proposition. But before I do that, I need remind myself of what Cardozo, the great American Judge, said in his treatise on the Nature of the Judicial Process (1921) at p. 168. He did not doubt the grandeur of the conception which lifts (Judges) into the realm of pure reason, above and beyond the sweep of perturbing and defecting forces. But then he said, 'Nonetheless, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights: we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men, do not turn aside in heir course, and pass the Judges by'. Similar view was expressed by Lawrence, C. J. in Peoples v. Wilson, (1872) 64 Ill 195: 16 Am. Rep. 528 quoted also in the Law of the Press by Hale pp. 329-33, from which I quote the following passage:

'A Court will, of course, endeavour to remain wholly uninfluenced by publications like that under consideration; but will the community believe that it is able to do so? Can it even be certain in regard to itself? Can men always be sure of their mental noise? A timid man might be influenced to yield, while a combative man would be driven in the opposite direction. Whether the actual influence is on one side or the other, so far as it is felt at all, it becomes dangerous to the administration of justice. Even if a court is happily composed of Judges of such firm and equal temper that they remain wholly uninfluenced in either direction. nevertheless a disturbing element has been thrown into the council chamber, which it is the wise policy of the law to exclude.

Regard it in whatever light we may, we cannot but consider the article in question as calculated to embarrass the administration of justice, whether it has in fact done so or not, and therefore as falling directly within the definition of punishable contempts, announced by this court in the case of Stuart v. People, (1842) 3 Scam. 395. It is a contempt, because, in a pending case of the gravest magnitude, it reflects upon the action of the court, impeaches its integrity, and seeks to intimidate it by the threat of popular clamour.

It may be said that, as long as the Court was conscious it had not been frightened from its propriety by the article in question, the wiser course would have been to pass it by in silence.

In my opinion Cardozo and Lawrence, C. J. present a realistically accurate picture of the mind of a Judge.

17. Be that as it may, I have now to see how far the cases relied upon by the learned Advocate-General take him. In Duffy's case, 1950-2 QB 188 (supra) the day after one James Lawrence Nash was convicted of causing grievous bodily harm with intent and sentenced to five years imprisonment, an article appeared in a newspaper which, he alleged contained untrue statements about him and made him appear to be a man addicted to violence. The applicant intended to and subsequently did appeal, to the Court of Criminal Appeal, against both conviction and sentence. There was an application by Nash tor contempt of Court against the authors of the article. Although the case against the applicant had been disposed of at the time of the offending publication, Lord Parker C. J. held that a Criminal case remained sub judice at any rate until the time had expired within which notice of appeal to the Court of Criminal Appeal might be given or, in the event of such notice being given, had been heard and determined. Thus, the article was held to concern a sub judice matter. But that notwithstanding, his Lordship expressed the view that every libel on a person about to be tried was not necessarily contempt of Court; the applicant must show that some-tiling had been published which was clearly intended or was calculated to prejudice a trial which was pending. Examining the offending article in the background as stated above, his Lordship observed:

'Even if a judge who eventually sat on the appeal had seen the article in question and remembered its contents, it is inconceivable that he would be influenced consciously or unconsciously by it. A Judge is in a very different position to a juryman. Though in no sense superhuman, he has by his training no difficulty in putting out of his mind matters which are not evidence in the case. This, indeed, happens daily to judges on assize. This is all the more so in the case of a member of the Criminal Appeal, who, in regard to an appeal against conviction is dealing almost entirely with points of law and who, in the case of an appeal against the sentence is considering whether or not the sentence is correct in principle.'

Although expressing the above opinion, his Lordship did not dissent from the following view expressed by Humphreys J. in Rex v. Davies, (1945) KB 435 about a Judge sitting in the Court of Criminal Appeal:

'He is a human being, and while I do not suggest that it is likely that any judge as the result of the information which had been improperly conveyed to him, would give a decision which otherwise, he would not have given, it is embarrassing to a judge that he should be informed of matters which he would much rather not have and which make it much more difficult for him to do his duty.'

All that his Lordship did in Duffy's case, 1950-2 QB 188 (supra) was to determine the meaning of the word 'embarrassment', as used by Hum-phrays J., in the following language:

'It is by no means clear what the judges in that case intended to convey by the word 'embarrassment'. If, in its context, the word means more than this, namely, the article had put upon the judge quite unnecessarily, the task of dismissing the offending matter from his mind, then we think the dicta we have quoted goes too far. Embarrassment which has no effect on the impartiality is not necessarily contempt of Court, The question always is whether a judge would be so influenced by the article that his impartiality might be consciously or even unconsciously affected. In other words, was there a real risk, as opposed to a remote possibility, that the article was calculated to prejudice a fair hearing. Even then his Lordship did not close his judgment without a warning and observed: 'We hope that nothing we have said will lead newspapers to think that the Court approves in any way of an article such as this, Not only do newspapers publish such articles at their peril in regard to proceedings for contempt of Court or for libel but the effect of such an article may well be that the prisoner will, however wrongly, think that he will be or has been prejudiced in his appeal.'

This closing paragraph really supplies the key to the judgment. A prejudicial publication, concerning a pending proceeding, may amount to contempt and is risky business. But the trained mind of the judge is likely to ignore extraneous matters and may not be embarrassed or influenced by each and every prejudicial publication, particularly if he be an appellate Judge concerned entirely with the legal (and not the factual) aspect of the matter before him. If, however, the publication be so grossly improper that it embarrasses the Judge (even in the limited sense as indicated in Lord Parker's judgment), then it may be treated as contumacious and dealt with accordingly. This is how I read Duffy's case, 1950-2 QB 188 and find little therein contained to support the extreme contention of the learned Advocate-General.

18. The case of Vine Products Ltd., 1965-3 WLR 791 (supra), also relied upon by the learned Advocate-General, establishes no different proposition. There was an action commenced by Vine Products Ltd., and others, inter alia, claiming declaration that they were entitled to sell, advertise and offer for sale any wine theretofore sold by them under any of the descriptions, British Sherry, English Sherry, South African Sherry, Cyprus Sherry or Australian Sherry, and to sell, advertise or offer for sale any similar wine under such description without infringing any right of any of the defendants. The claim was disputed by the defendants and there was counter-claim made sacking to restrain the plaintiffs from passing off as sherry beverages which were not wines fortified, matured and blended in Jerez district of Spain. Pending hearing of the action there appeared in a daily newspaper an article headed the Truth of labels which, after referring to a named case in which it had been held that the 'Champagne' meant only a wine produced in the Champagne District of France, stated--'If the Sherry Shippers' Association intend, as is reported, to bring a test case in defence of their own name, their position would be fundamentally the same. Sherry to be fully entitled to the name should come from Jerez.... To speak of South African or Cypriot Sherry is anomalous as to speak of Spanish Champagne. On an application by the plaintiffs, inter alia, for committal of the editor and publishers of the newspapers for contempt of Court, on the grounds that the article contained a discussion of the merits of their action, would cause damage to their reputation as traders and their position in the action, was likely to influence witnesses and the public and subject them to pressure, Buckley, J. observed:

'The right of the press to comment on any matter of general public interest, as long as the comment is fair comment, is a matter of very great public interest, but it is a right which is subject to certain restrictions, one of which is that the organs of the press must not be used in any way to prejudice the proper trial of actions in the courts of the country, that being a higher public interest.'

* * * * *'The question is how they ought to be applied to the facts of this particular case. It is a contempt of this court tor any newspaper to comment on pending legal proceedings in any way which is likely to prejudice the fair trial of the action. That may arise in various ways. It may be that the comment is one which is likely in some way or other to bring pressure to bear upon one or other of the parties to the action, so as to prevent that party from prosecuting or from defending the action or encourage that party to submit to terms of compromise which he otherwise might not have been prepared to entertain, or influence him in some other way in his conduct in the action, which he ought to be free to prosecute or to defend, as he is advised, without being subject to such pressure. It may be that the publication will be of a kind that is likely to interfere with the proper adducing of evidence in the case either by discouraging witnesses from coming forward or by influencing them in some way in the kind of evidence that they are prepared to give, inhibiting them in ways of that kind; or it may be, if the case is to be tried with a jury, that the publication may be one of a kind which will be apt to make a juryman approach the case without a completely open mind. This is not an action which will be tried by a jury and, although I suppose there might be a case in which the publication was of such a kind that it might even be thought that it would influence the mind of a professional Judge, it has generally been accepted that professional Judges are sufficiently well equipped by their professional training to be on their guard against allowing any such matter as this to influence them in deciding the case, and it is not suggested in the present case that anything has been done to prejudice the trial of this action in that sort of way.'

Thereafter his Lordship referred to the following classic observation by Cotton L, J. in Hunt v. Clarke, (1889) 58 LJ QB 490 at p. 492 C. A. :

'It is not necessary that the Court should come to the conclusion that a Judge or 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.'

He explained the observation in the following language:

'What the Lord Justice was there saying, in my judgment, is that, if you have such a discussion in a paper of the rights of some pending litigation as is calculated to prejudice the proper trial of the action, that is a serious contempt which will be met with the necessary punishment. I do not think it is right to take that statement out of its context and say that anything which happens to amount to or be equivalent to a discussion of the rights of some party's case in an action is thereby automatically a contempt, even if only a technical contempt. The test must always be, in my judgment, whether or not in the circumstances of the particular case what has happened is something which is likely to prejudice the fair trial of the action, and the risk that it will prejudice the fair trial of the action must be a real risk.'

Inasmuch as the offending article did not, in his reading, measure upto the test laid down by his Lordship, he dismissed the motion. This case also does not support the extreme argument of the learned Advocate-General that judges are never influenced or embarrassed by extraneous publication in the Press. There may be public actions made in the Press, so grossly improper, that they may really embarrass as a Court of law. Whether the Radio broadcast, made by the Chief Minister, is such a publication I shall see later on.

18a. Mr. Advocate-General also advanced an extreme argument to the effect that resort to the contempt procedure lor penalising scandalous publications concerning Courts was an obsolete procedure and should not be resorted to. He drew inspiration for this argument from the following observation by Lord Morris in Mcleod v. St. Aubyn, (1899) AC 549, 561:

'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 land marks 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.

I do not understand why the learned Advocate-General made this argument. The Radio talk by the Chief Minister did not scandalise this Court. It merely commented upon the virtues of a Control Order, the validity of which was the subject matter of a pending litigation. Moreover, the observation of Lord Morris that contempt proceedings for scandalising the Courts have become obsolete in England is not strictly speaking correct; for in the very next year such proceedings were taken in Reg v. Grey, (1900) 2 QB 36. This mistake in the observation by Lord Morris was also noticed by Mukherjea, J. in Brahma Prakash Sharma v. State of Uttar Pradesh : 1954CriLJ238 . I, therefore, overrule this argument, as of no importance.

19. Mr. Advocate-General, next argued at some length that there was no evidence that the Chief Minister had knowledge of the pendency of the Writ Petition when he broadcast the speech and unless that was proved, this Court should not proceed further. He relied upon the following passage in Oswald's Treatise on Contempt of Court (p. 93) in this context:

'But it must be proved that the comments were made with the knowledge of the pending cause .

He also relied upon the judgment of the Madras High Court in E. V. Ramaswami v. Jawahar-lal Nehru, AIR 1958 Mad 558 and the cases therein mentioned in support of this proposition. The proposition that knowledge of the pendency of the proceeding is an essential ingredient to prove, before proceeding against a person for contempt of court, is not a universally accepted proposition. The proposition was not accepted by Narasimham, J. in State v. Biswanath Maha-patra : AIR1955Ori169 in which his Lordship discussed the English decisions on the point and observed (at p. 171):

'If the English decisions on the subject be carefully examined it will be clear that though want of knowledge of the pendency of a case has, in special circumstances, been held to be a good reason for not proceeding for contempt, there is no invariable rule that unless knowledge of the pendency is affirmatively established, the offence ol contempt is not committed'. Almost similar view was expressed by the Allahabad High Court in Rajendra Kumar Garg v. Shafiq Ahmad Azad : AIR1957All37 and by the Madhya Pradesh High Court in Padmawati Devi v. R. K. Karanjia : AIR1963MP61 . In the instant case it is not necessary for me to consider this argument any further. In the facts of this case, the learned Advocate-General had to concede, at the end, that the Chief Minister must be deemed to have constructive knowledge of the pendency of Writ Petition, when he did broadcast his speech. The Chief Minister himself goes further, in the affidavit affirmed by him and filed towards the close of the hearing. He admits that he knew of the issue of the Rule Nisi in Matter No. 369 of 1965 but had no knowledge of the details. Were I do express my views on the point, I would have respectfully agreed with the opinion expressed by the Allahabad, Madhya Pradesh and Orissa High Courts, in the three cases referred to hereinbefore. But it is not necessary for me to do so, in this case, regard being had to the turn that events took.

20. Mr. Advocate General recast his argument, after the realisation that it would be futile for the Chief Minister to deny either actual or constructive knowledge of the pendency of the Writ petition. He therefore argued that even if the Chief Minister had constructive knowledge of the pendency of the Writ petition, he was within his legitimate rights in broadcasting his justification of the Control Order and the benefits it was to bring to the general public. In this context he strongly relied on certain observations contained in the judgment of the Madras High Court in the case between AIR 1958 Mad 558 (supra). I need recall in my mind the background in which those observations were made. Ramaswami, the applicant before the Madras High Court, was or claimed to be the leader of an agitation in the State of Madras known as Dravida Kazhagham. He was committed to a sessions court of stand his trial, inter alia, on a charge under Section 117 of the Indian Penal Code, for having abetted commission of violent offences by the public. The charge related to three speeches, wherein the applicant Ramaswami was alleged to have incited the public to kick, stab and kill Brahmins and set fire to their houses. While the trial of the applicant was pending, Prime Minister Nehru visited the State and delivered a speech, in course of which he said:

'But one of the most remarkable and one of the most foolish agitations that I have experienced in India has recently started in your own State of Madras. This I believe is known as the Dravida Kazhagham agitation and the leader of this movement had said something which cannot be forgiven and which cannot be tolerated. Apart from actually talking in an unabashed manner about murder, inviting people to murder others a thing unheard of in any civilised society he has dared to insult the National Flag and the National Constitution.'

Prime Minister Nehru expressed the belief that the person who used such language should either go to the prison or to the lunatic asylum. In the belief that the speech prejudiced his criminal trial, in which, by the way, he was ultimately convicted and sentenced, Ramaswami moved an application for taking action against the Prime Minister for contempt of the Sessions Court. The application would have in any event been dismissed, because their Lordships were of the view that in the absence of proof that the Prime Minister had knowledge of the pending proceeding, the speech would not amount to contempt of Court. Their Lordships, however, considered the application on the assumption that the Prime Minister had knowledge of the case against the applicant. In that context, their Lordships observed:

'The question then is, whether there was anything in the speech complained of to warrant the criticism that it was calculated or even tended to prejudice the trial of the sessions case against the petitioner. There is no reference in the speech to the criminal case or to the particular speeches of the petitioner which were the subject matter of the criminal charge against him. The respondent's speech was concerned with certain disruptive movements and forces in the country and the anti-social activities of certain persons and their professed methods to destroy the very fabric of society by committing acts which undoubtedly were offences. The agitation of the Dravida Kazhagham of which the petitioner is the leader and the insult offered to the National Flag were mentioned. Those certainly are matters of grave public concern, and the observation of the respondent is nothing but a legitimate criticism of what, in the opinion of the respondent and of every right thinking citizen, are forces of evil and disruption. We can see nothing in the speech which can be said to interfere or tend to interfere with the course of justice'.

Their Lordships of the Madras High Court could not find anything in the speech which interfered or tended to interfere with the course of justice on the two-fold ground that Prime Minister Nehru did not refer to the pending criminal case against the leader of the Dravida Kazhagham movement and also did not refer to the speeches for which he was being tried. Their Lordships did not consider whether the characterisation of the applicant, as made by Prime Minister Nehru, was such as might prejudice him in his Criminal trial. According to their Lordships the speech was devoted to condemnation of a disruptive movement, and the antisocial activities of certain persons, including those of the leader of the movement and as such was a legitimate form of criticism. The case is no authority for a general proposition that criticism of a disruptive movement and its leader may go to any length and nothing said in that context can interfere of tend to interfere with the administration of justice or embarrass a Judge in a Criminal trial of the leader of the movement. Prejudicing mankind for or against a party, before his case has been heard out, is contempt. Prejudicial criticisms do not fall outside the ambit of the Law of contempt, only because the criticisms were bona fide made, or made in a public interest supposed or real. I have therefore to see whether speech broadcast by the Chief Minister did or did have the tendency to prejudice people against the petitioners in Matter No. 369 of 1965 (Smt. Kusum Kumari Ghosh v. State of West Bengal) or did or did have the tendency to embarrass the said petitioners or others with similar cause or the Court which was trying the cause of the said petitioners.

21. Mr. Advocate General read to me passages from Ambard v. Attorney General of Trinidad and Tobago, 1936 AC 322 particularly the passage at p. 335:

'The path of criticism is a public way: the wrong headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.'

The above observations were made in the context of a proceeding for contempt started against the editor-manager of a newspaper for publication of an article containing criticisms of sentences passed by Criminal Courts, which, it was alleged, was calculated to interfere with the due course of justice and to bring the authority and administration of the law into disrepute and disregard. The case is of little assistance in the facts of the instant case. There is nothing contained in the speech by the Chief Minister, which criticises any Court, far less this Court. If criticism had been directed against this Court, I might have been guided by the observations of Lord Atkin in Ambard's case (supra).

22. My attention was also drawn by the learned Advocate General to the following cases namely, (1) Debi Prasad Sharma v. Emperor in which it was held that if a Judge be defamed in such a way as not to affect the administration of justice, the act is not contempt and the Judge has only his ordinary remedies for defamation (2) Queen v. Payne and Cooper, (1896) 1 QB 577 in which Lord Russel of Killowen C. J. adopted the view expressed by Cotton L. J. in In Re: Clements, Costa Rica Republic v. Erlanger, (1877-46 LJ Ch 375) (58 LJQB at p. 493) to the effect,

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

(3) Gaskell and Chambers Ltd. v. Hudson Dodsworth & Co., (1936) 2 KB 595 in which Lord Hewart C. J. accepted the restatement of the law by Lord Russel in Queen v. Payne (supra) as the correct statement of law. (4) Ananta Lal Singh v. Alfred Henry Watson : AIR1931Cal257 in which Rankin, C. J. observed

'that the court's jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. It is not every theoretical tendency that will attract the action of the Court in its very special jurisdiction. The purpose of the Court's action is a practical purpose and, it is reasonably clear on the authorities, that this Court will not exercise its jurisdiction upon a mere question of propriety where the tendency of the article to do harm is slight and the character and circumstances of the comment are otherwise such that it can properly be ignored.

Governor of Bengal v. Matilal Ghosh, ILR 41 Cal 173: (AIR 1914 Cal 69) in which Jenkins, C. J. emphatically stated almost the same view, although Rankin, C. J. entertained the doubt whether the statement of law by Jenkins, C. J. had been made with sufficient guardedness and In re, Subrahmanyan, Editor, Tribune, AIR 1943 Lah 329 (FB) in which Harries, C. J. also expressed a similar view.

23. If in citing these authorities the object of the learned Advocate General has been to impress upon me the propositions that the power of summarily punishing for contempt should not be lightly resorted to and unless there has been substantial (as opposed to technical) interference with the course of justice or unless some litigant has suffered substantial prejudice by reason of an adverse publication, pending litigation, courts should ignore such publication--I am prepared to uphold the propositions as correct propositions of law. I am also prepared to uphold his other proposition, although not necessary so to do in the context of the present case, that if a Judge be defamed in such a way as not to affect the administration of justice, the act is not necessarily contempt. I have, therefore, to see if the speech delivered by the Chief Minister substantially interferes or tends to do so with the administration of justice by this Court or prejudices the cause of the petitioners in Matter No. 369 of 1965 or antagonises the public against them or has any of the pernicious consequences mentioned in the Rule Nisi.

24. Mr. Advocate General further argued that the offence, if any, committed by the Chief Minister was criminal contempt and he should be treated as an accused in a criminal case and the protection of Article 20 of the Constitution should apply to him. Mr. Advocate General also argued that no new material should be brought on the record after the issue of the Rule Nisi, particularly where the Rule was issued suo motu and that this Rule itself should not have been issued in the absence of an affidavit by a Registrar of this Court, calling attention of this Court, to the broadcast and publication of the speech of the Chief Minister. These points, in my opinion, are mostly not of substance. Mr. Meyer, who acted as amicus curiae, called my attention to the case of Sukhdev Singh v. Teja Singh C. J., AIR 1954 SC 186. In that case there was an application made, before the Supreme Court, for transfer of a Contempt proceeding from the Pepsu High Court to any other High Court, under the provisions of Section 527 of the Code of Criminal Procedure, on the theory that contempt punishable under the Contempt of Courts Act, 1952 was an offence to which section 5 of the Criminal Procedure Code applied and was triable under the provisions of the Code. The Supreme Court dismissed the application with the following observations:--

'In our opinion, the power of a High Court to institute proceedings for contempt and punish where necessary is a special jurisdiction which is inherent in all Courts of Record and Section 1(2) of the Code expressly excludes special jurisdiction from its scope. The section runs:

'In the absence of any specific provision to the contrary, nothing herein contained shall affect any special ..... law now in force or any special jurisdiction or power conferred by any other law for the time being in force.'

The term 'special jurisdiction' is not defined in the Criminal Procedure Code but the words 'special law' are defined in Section 41 of the Indian Penal Code to mean 'a law applicable to a particular subject'. In the absence of any specific definition in the Criminal Procedure Code, we think that that brings out the ordinary and natural meaning of the words special jurisdiction and covers the present case. Contempt is a special subject and the jurisdiction is conferred by a special set of laws peculiar to Courts of Record.'

* * * *'Now it is relevant to note in this connection that whatever the origin of the jurisdiction may be in the case of those three Courts, the Charter of 1774 which established the Supreme Court of Bengal, while providing in Clause 4 that its Judges should have the same jurisdiction as the Court of King's Bench in England, also expressly stated in clause 21 that the Court is empowered to punish for contempt.

When the Supreme Court of Bengal was abolished, the High Courts Act of 1861 continued those powers to the Chartered High Courts by sections 9 and 11 and clause 2 of the Letters Patent of the year 1865 continued them as Courts of Record. Despite this, in 1883 the Privy Council did not trace this particular jurisdiction of the Calcutta High Court to Clause 15 of its Charter but to the Common Law of England. But what is the Common Law? It is simply this: that the jurisdiction to punish for contempt is something inherent in every court of record.'

The Supreme Court, thereafter, discussed the continuance of this power under the different Constitution Acts and the Constitution itself and observed:

'In any case, so far as contempt of a High Court itself is concerned, as distinct from one of a subordinate Court, the Constitution vests these rights in every High Court, so no act of a Legislature could take away that jurisdiction and confer it afresh by virtue of its own authority.' Ultimately, the Supreme Court came to the following conclusion:--

'We hold, therefore, that the Code of Criminal Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. This rule was laid down by the Privy Council in In re, Pollard, (1845) LR 2 PC 106 at p. 120, and was followed in India and in Burma in Vallabhdas Jairam v. Narronjee Permanand, (1903) ILR 27 Bom 394 at p. 399 and Ebrahim Mamoojee Parekh v. Emperor, AIR 1926 Rang 188 at pp. 189-190. In our view that is still the law.'

This being the position in law, the argument proposing to import provisions of the Criminal Procedure Code to the trial of a person for contempt must be overruled. The argument that even if trial of a contemner, by summary procedure, be not a criminal trial, even then the contemner is entitled to protection of Article 20 of the Constitution and cannot be compelled to give self incriminating evidence, is, however, a debatable question of law. In the case of State v. Padma Kant Malviya : AIR1954All523 (FB) a Full Bench of the Allahabad High Court repelled such an argument and held that an alleged contemner was not a person accused of an offence within the meaning of Article 20(3) of the Constitution and if he had voluntarily filed an affidavit, he could be cross-examined on it. The question, is, however, of academic importance to me, in this Rule. The Chief Minister has not been compelled to give any

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