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Tushar Kanti Ghose and anr. Vs. the Governor of Bengal in Council - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1933Cal118
AppellantTushar Kanti Ghose and anr.
RespondentThe Governor of Bengal in Council
Cases ReferredAnanta Lal Sinha v. A.H. Watson
Excerpt:
- .....counsel's argument was based on section 107, government of india act, 1919, which gives to the high courts superintendence over all courts for the time being subject to their appellate jurisdiction and amongst other powers the power of making and issuing general rules and prescribing forms for regulating the practice and procedure of such courts. mr. basu points out that the only right of appeal from commissioners is the right of appeal to the high court given by section 3(1), bengal criminal law amendment (supplementary) act, 1925, to a person convicted on a trial held by commissioners, there being no provision for an appeal by the local government from an order of acquittal such as is made by section 417, criminal p.c., and also that the power to make rules for the procedure of.....
Judgment:

1. This is a rule granted on 18th July last by Jack and M.C. Ghose, JJ., on the application of His Excellency the Governor of Bengal in Council calling on the opposite parties, the first of whom is the editor, and the second the printer and publisher of a daily newspaper called the Amrita Bazar Patrika circulating in Calcutta, to show cause why they should not be ordered to stand committed, or otherwise dealt with for the contempt of the Court of the Commissioners appointed as hereinafter stated and of this Court, in respect of the acts and publications referred to in the petition on which the application for the rule is based.

2. On 30th April 1932 Mr. Douglas, the District Magistrate, was assassinated at Midnapore. In June the Local Government; under the powers conferred upon it by the Bengal Criminal Law Amendment Act 1930, directed the trial by three Commissioners of one Prodyot Kumar Bhattacharjee for the murder of Mr. Douglas. The Commissioners sat at Midnapore during the month of June and delivered their judgment on the 25th of that month convicting the accused of the murder of Mr. Douglas and sentenced him to death. On 30th June the accused filed an appeal against his conviction and sentence. It is said that the reports of the trial appearing in the issues of the Amrita Bazar Patrika of 12th, 14th 17th 22nd and 23rd June 1932 are contempts of the Court of the Commissioners, a Court subordinate to the High Court and punishable by the High Court by reason of the provisions of the Contempt of Courts Act, 1926. It is further said that two leading articles appearing in the issues of 28th and 29th June 1932 are contempts of this Court. Mr. N.K. Basu who has appeared for the opposite parties raised certain preliminary points with which it will be convenient to deal before discussing the merits of the application.

3. He submits first of all that the rule should not have been granted inasmuch as the petition on which the Court was moved was unsigned. Belying on the judgment of this Court in Legal Remembrancer v. Matilal Ghose AIR 1914 Cal 69 he argues that inasmuch as' these proceedings are criminal in character the opposite parties are in the position of accused persons and entitled to have the benefit of any error, however technical, into which the party who seeks to imprison them may fall. He therefore asks us to discharge the rule leaving it to the petitioner to move the Court again upon a properly signed petition if he is so advised. The learned Advocate-General has been constrained to admit that the petition, although verified by an affidavit affirmed by an Additional Deputy Secretary to the Government of Bengal, and supported by a further affidavit affirmed by Abdul Ghani, Sub-Inspector of Police, is not signed by anyone on behalf of the petitioner, the Governor of Bengal in Council, nor has he sought to question the proposition that the rules and practice of the Court require petitions of this sort to be signed by or on behalf of the persons presenting them. He argues however that the irregularity is not fatal to the application, since the Court at the time the rule was granted had before it evidence legally admissible showing prima facie that contempt had been committed, and could and should of its own motion, if it considered that the interests of justice so required, have issued the rule though there was no application before it by the petitioner or anyone else. We consider the contention is correct, and we hold that the absence of a proper signature does not entitle the opposite parties to ask for the discharge of the rule.

4. At the conclusion of the argument we permitted the petition to be returned for signature, not because we considered such signature necessary to enable us to deal with the application, but in order that the petition might be made to conform with the rules of the Court. The petition has now been signed by Mr. Henderson, Secretary to the Government of Bengal in the Judicial Department. Mr. Basu contends that even now the matter is not at rest, and that it is necessary for the Advocate-General to show by evidence that the signatory has been authorized by rule under Section 49(1), Government of India Act, 1919(9 and 10 Geo. 5 C. 101), to represent the Governor in Council; and he calls attention to the difference between the language of that section and that of Section 40(1) of the same Act. This point, in view of our opinion on the main question, does not strictly require our decision. We are disposed however to hold that Mr. Basu's argument is not maintainable and that when signing a petition of this nature a Secretary to Government must be presumed to be acting within the scope of the authority conferred upon him until the contrary is shown.

5. Mr. Basu was further disposed at one stage to challenge the locus standi of the Legal Remembrancer and his power to instruct counsel in a matter such as this. In our opinion no question can arise as to this. The Legal Remembrancer is ex-officio Public Prosecutor on the appellate side of the Court and as such has the power to instruct counsel, his authority to act for the Local Government being in no way dependent on anything in the nature of a vakalatnama or warrant of attorney. Another argument has been addressed to us which is only concerned with the part of the application which seeks the punishment of the opposite parties for contempt of the Commissioners' Court, and is to the effect that such Court is not a Court subordinate to the High Court within the meaning of Section 2(1), Contempt of Courts Act, 1926, and therefore the statutory jurisdiction of the High Court does not extend to a contempt of a Commissioners' Court. It was not suggested that Commissioners are not Courts and indeed their powers including those of trying, convicting and sentencing are powers peculiar to Courts. Counsel's argument was based on Section 107, Government of India Act, 1919, which gives to the High Courts superintendence over all Courts for the time being subject to their appellate jurisdiction and amongst other powers the power of making and issuing general rules and prescribing forms for regulating the practice and procedure of such Courts. Mr. Basu points out that the only right of appeal from Commissioners is the right of appeal to the High Court given by Section 3(1), Bengal Criminal Law Amendment (Supplementary) Act, 1925, to a person convicted on a trial held by Commissioners, there being no provision for an appeal by the Local Government from an order of acquittal such as is made by Section 417, Criminal P.C., and also that the power to make rules for the procedure of Commissioners' Court is vested by Section 10 of the principal Act not in the High Court, but in the Local Government. We do not think that these arguments lead to the conclusion that Mr. Basu urges upon us. The jurisdiction to hear appeals from the Commissioner is nonetheless appellate jurisdiction because the right of appeal from Commissioners is less extensive than the right of appeal from the ordinary criminal Courts. The fact that the rule-making power with regard to Commissioners' Courts is vested in the Local Government appears to us immaterial, for under Section 107 the rule-making power is something different from and additional to the right of superintendence, and were Parliament to repeal Sub-section (c) that right would still remain.

6. It should further be observed that even under the section the power is not unlimited as the rules must not be inconsistent with the provisions of any law for the time being in force and in the case of this Court require the previous approval of the Governor-General in Council. A question in many respects similar to that which we are now discussing has recently been considered by the Bombay High Court in Emperor v. Balkrishna Hari AIR 1933 Bom 1(SB), where it was held that the High Court had the power to revise orders made by the Courts of Special Magistrates constituted by the Emergency Powers Ordinance 2 of 1932 on the ground that an appeal in certain cases lay from such Courts to the High Court.

7. It is now necessary to consider the merits of the application, first with regard to the reports of the trial appearing in the news columns of the paper which it is said are contempts of the Commissioners' Court. The petitioner's case is based not so much on the reports themselves as on the headlines by which they are preceded. It is said that their composition and the nature of their display were deliberately made to impress on the public and on witnesses who were likely to be examined that the prosecution case was weak and that the prosecution was not likely to succeed in proving the guilt of the accused.

8. We think there is reasonable ground for this allegation. The headlines of 12th June are not objectionable, but those of 14th June begin with the words in heavily loaded type identity doubtful.' The casual reader, it seems to us, would conclude either that these words are comments and express the general impression made on the mind of the writer by the day's proceedings or that prosecution witnesses had admitted doubts as to the identity of the accused person. In so far as the words are comment they are clearly not permissible when made during the course of the trial. In so far as they can be described as a summary of the evidence given they are garbled and misleading, for they are based on a passage in the cross-examination of Mr. George, the Subdivisional Officer and an eye-witness of the murder, where the witness is referring not to the accused but to a man who was stated to have joined in the attack on Mr. Douglas and to have escaped capture.

9. The headlines of 17th June are concerned with a statement by a witness that he was unable to vouch for the accuracy of all the entries appearing in a list made of the articles found when the person of the accused was searched after his arrest. Though there is nothing misleading in these headlines, we consider that, taken with the other headlines, they in fact amount to a criticizm of the prosecution case under the guise of a summary of the day's proceedings.

10. The petitioner also relies on the headlines of 22nd June. We cannot see anything objectionable in them. It is true the opening line consists of the words 'I am quite innocent' in large type; but the next line clearly explains, what the use of inverted commas had already indicated, that the words are a verbatim extract from the statement of the accused. They are for practical purposes the whole of his statement and we consider that having regard to the public importance of the case the editor was entitled to draw the attention of the readers of his newspaper to the statement by summarizing it in a headline and by the use of heavy type.

11. The position however is different with regard to the headlines of 23rd June. The first and most heavily typed is 'Not guilty of any offence' and the second 'Prodyot attracted from playground by report of firing.' Then follows 'judgment reserved' while the last headline is as is obvious from the use of inverted commas, the summary of an argument addressed to the Court. In fact the whole of the report is concerned with the address of the learned Counsel for the defence and much of it reproduces the actual words used. But we do not think the casual reader would suppose the first two headlines which are not in inverted commas were merely the submissions of counsel to the Court although from the words judgment reserved' he might infer that they were not the findings of the Court.

12. Taking the headlines as a whole and more particularly those appearing on 14th June and 23rd June we have no doubt that their publication might have an effect on the minds of witnesses to be examined or cross-examined before the Commissioners and is what Alverstone, C.J., describes in R. v. Tibbets (1902) 1 KB 77 as conduct calculated to produce an atmosphere of prejudice in which the proceedings must go on.

13. However if the headlines were the only material before us and if we were invited to punish the opposite parties solely on the allegation that they had been guilty of contempt of the Commissioners' Court we should be disposed to discharge the rule on the ground that there has been undue delay in moving the Court. The main justification for the summary fashion in which contempts of this nature are punished is that improper comments on pending proceedings tending to create prejudice must be stopped at once and this would not be possible if the ordinary procedure of the criminal law was followed.

14. It is no answer to the application to say that at the date the Court was moved the proceedings before the Commissioners had terminated. It may often be impossible to apply to the Court during the actual pendency of the proceedings. In the present case however it has not been argued that there were special circumstances making delay unavoidable. The first publication complained of was on 12th June and the last on 23rd June. The judgment of the Commissioners was on 25th June. No application to this Court was made until 18th July more than three weeks after the proceedings had come to an end.

15. We consider that in the circumstances to accede to the petitioner's prayer that we should punish the opposite parties for the contempts with which we have already dealt would create a dangerous precedent and encourage belated applications for the exercise of the summary procedure. There remain for consideration the articles of 28th June and 29th June which are alleged to be contempts of this Court. Each is the principal leading article of the day and each fills about two columns of the newspaper. That of 28th June begins with a statement to the effect that because on a careful and anxious perusal of the evidence and the judgment the writer has come to the conclusion that a grave miscarriage of justice has taken place he is compelled to 'comment adversely' on the latter. Mr. Basu concedes that if in the circumstances it was a contempt to comment it is impossible to argue that contempt has not been committed. No useful purpose would be served by a close analysis of the articles. Although there is nothing improper or disrespectful in the language used they are from start to finish a systematic criticism of the judgment of the Commissioners for the purpose of showing that it is erroneous and that the accused person has been wrongly convicted.

16. The opposite parties first submit that inasmuch as at the date of publication no appeal had been filed there could be no contempt of the High Court as the case was not pending before it. This contention clearly puts the matter too high, for the authorities show that contempt can be committed when there is technically speaking no case pending. Thus it has been held contempt to comment on a case where the jury has disagreed but the case has not been set down for retrial: Re. Labouchere Ex parte, Columbus Co., Ltd. (1901) 17 TLR 578. Again it is a contempt of the High Court of Justice to comment on the magisterial inquiry into a case triable only at the Assizes before the person charged has in fact been committed for trial [R. v. Parke (1903) 2 KB 432] or even when it is uncertain whether the person charged if committed will be tried at Assizes or Quarter Sessions: R. v. Davies (1906) 1 KB 32. Moreover the judgment of Sir Lawrence Jenkins, C.J., in Legal Remembrancer v. Matilal Ghose AIR 1914 Cal 69(at p. 215 of 41 Cal.) seems to recognize the possibility of a contempt of the High Court on the appellate side when no appeal is pending before it.

17. What were the circumstances in the case with which we are dealing? It appears to us that the editor must have had in his mind the probability of an appeal, for the readers of the paper were informed in the issue of 26th June, in which the judgment of the Commissioners was reported at length, that Prodyot had signed a vakalatnama for filing an appeal in the High Court. With regard to this the editor in an affidavit used in opposition states that he is personally aware of many cases in which no appeal has been filed although a vakalatnama has been signed. We can attach no importance to this statement, for the only object which the editor could have in informing his readers of the signing of the vakalatnama was to apprise them of the fact that an appeal was to be expected.

18. The matter does not end here, for whether Prodyot appealed or not it was inevitable that the merits of the case should be the subject of judicial consideration by this Court, for Section 3(2), Bengal Criminal Law Amendment (Supplementary) Act, provides that when the Commissioners pass a sentence of death the records of the proceedings before them shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court. It is, we imagine, a matter of general knowledge among educated persons in this country that capital sentences passed by subordinate Courts require confirmation by the High Court and we entertain no doubt that the exhaustive criticism of the Commissioner's judgment published at the time it was, constituted a contempt of this Court by which the proceedings were bound under the provisions of the law to be considered. Lastly the submission has been made that in the circumstances if contempt has been committed it is a venial contempt and should not entail any punishment and our attention has been drawn to Ananta Lal Sinha v. A.H. Watson : AIR1931Cal257 .

19. In that case newspaper comment had been made on the conduct of a barrister in accepting a brief from persons who were then on their trial before Commissioners. As Rankin, C.J., points out in his judgment the criticizm, although this did not appear to be appreciated, by the critic, had little or no force except upon the assumption that the accused persons were guilty of the offences charged. The Court discharged the rule holding that, although contempt had been committed, the tendency of the article to do harm was slight and the character and circumstances of the comments were otherwise such that it could properly be ignored. On this aspect of the case we observe that there is no expression of regret on the part of the opposite parties for any contempt they may have unwittingly committed. Their defence has been we have done what the law permits us to do.' Apart from this however we consider that the circumstances of the case are too grave for us to confine ourselves to a mere expression of disapproval. That the findings of a criminal Court, which must under the law be considered judicially by this Court, should first be the subject of lengthy and detailed criticizm in the Press, cannot in our opinion be tolerated for a moment. The affidavit filed by the opposite parties states that editors believe that they are entitled to comment when an appeal has not yet been filed. In support of this statement the deponent annexes a copy of the Statesman of 26th June 1932 containing the statements that the sentence of death will be generally approved and that the guilt of Prodyot is unquestionable.

20. We are only concerned with the case before us, but we think it right to say that all comment in the press whether by way of approval or disapproval of the judgments of Courts of Session or of Commissioners in capital sentence cases made pending their disposal by this Court is reprehensible and may entail most disagreeable consequences on those responsible for it. It is urged that there was no real danger of the articles prejudicing the minds of those Judges of this Court on whom the duty of confirming or setting aside the sentence passed by the Commissioners was to fall. This is true, but although the danger or absence of danger of actual prejudice is an important consideration it is not the only consideration. As observed by Bruce, J., in Re Labouchere ex parte Columbus Co., Ltd. supra the jurisdiction of the Court exists not only to prevent mischief in the particular case but to prevent similar mischief arising in other cases. To adopt the language of Wills, J. In In the matter of the Finance Union (1895) 11 TLR 167 articles such as those under discussion amount to a preliminary trial by newspaper when a trial by a regular tribunal is pending. As such they are an affront to the dignity of the Court and merit punishment. We do not in the circumstances of the present case consider it necessary to commit the opposite parties to prison and we consider it sufficient to order that each of them to pay a fine of Rs. 500 by 15th December 1932.


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