1. In this matter a rule was issued by us upon the opposite party to show cause why he should not be committed to prison or otherwise dealt with for the contempt of this Court and of the Court of Akshoy Kumar Bose, Deputy Magistrate of Jalpaiguri, in printing and publishing and allowing to be published certain articles on 6th March 1930 entitled 'The Sedition Case of Jalpaiguri' and 'Bichar' and why he should not pay the costs.
2. The articles related to the trial of certain accused persons under Section 124-A, I.P.C., which started in November 1929, and went on until February 1930. On 28th February they were found guilty and sentenced, and on 7th March they appealed to this Court. The articles in question were published at Jalpaiguri on 6th March, and the opposite party is resident there.
3. The Chief Justice has directed that we should exercise the jurisdiction vested in this Court by the Contempt of Courts Act 1926, but when the Rule first came on for hearing, the point was raised by Mr. Sen, appearing as representing the Incorporated Law Society, that the matter was one of such a nature that the party must be represented by an advocate of the Court instructed by an attorney, which was not the case. We directed notice to be given to the Bar Association, and Mr. N.K. Basu has now appeared in their interests.
4. In so far as the contempt of a subordinate Court is concerned the matter is now governed by the provisions of the Contempt of Courts Act 1926, enacted, as the preamble states, because doubts had arisen as to the powers of a High Court to punish contempts of subordinate Courts. Section 2(1) of the Act, so far as material, provides that:
The High Courts of Judicature established by Letters Patent shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of Courts subordinate to them as they have and exercise in respect of contempts of themselves.
5. Mr. Sen has referred in aid of his argument to the decision of the Special Bench in the case of Re Barristers and Vakils (1909) 10 Cr.L.J. 553, which however only decided actually that where a Magistrate had committed an accused for trial to the High Court under the provisions of the Criminal Law Amendment Act 1908, barristers would have the exclusive right of audience before the Special Tribunal at the trial of such cases in the High Court. The reasons for the decision are not given. Mr. Sen also referred to the provisions of Clauses 22, 23 and 24, Letters Patent of 1865, as to the criminal jurisdiction of their Court, and to Rule 2, Crown Side Rules, laid down in Ch. 37 of the Rules and Orders, as regards the trial of cases at the Crown Side under the extraordinary original criminal jurisdiction. He also referred to Ch. 2, Rule 4, of the rules and orders regarding the exclusive right of audience in any matter on the original side.
6. Mr. Basu on the other hand has argued that the Court has power to dispose of the matter in its criminal appellate jurisdiction, though it may be the Crown side would also have jurisdiction to deal with it. Even under Ch. 37, Rule 2, if the matter is one within the extraordinary criminal jurisdiction, he points out that applications for its exercise are to be heard and disposed of at the appellate side.
7. The matter is one that is by no means free from difficulty. The power of the High Court to commit for any contempt of itself is inherent in the Court and arises from the fact that it is a Court of Record. The power is one that is ancillary to the exercise of the various jurisdictions of the High Court and it may be expedient to exercise it in or in relation to any one of those jurisdictions. As regards the nature of such proceedings taken in contempt, I do not consider it necessary or desirable to lay down any general rule that such proceedings must necessarily and exclusively fall under any particular one of the different jurisdictions conferred on the Court by its Letters Patent; though it may be that the Court on its Crown side would have the power to deal with such a matter as the present : see per Jankins, C.J. in Legal Remembrancer v. Motiial Ghose (1914) 41 Cal. 173 at p. 215. On the other hand I am not satisfied that that must be the exclusive way of dealing with such a matter as an application in contempt. Upon the whole I am not prepared to uphold the contention that in this case the party, if represented, must appear through an advocate instructed by an attorney.
8. I agree.