Lancelot Sanderson, C.J.
1. In this matter the Rule was issued by me as Chief Justice of this Court after consultation with the learned Judges in consequence of two articles which appeared in the 'Amrita Bazar Patrika' newspaper on the 18th and 2.2nd of May 1917, respectively. The Eule was directed to Tarit Kanti Biswas, the printer and publisher of the newspaper, and to Moti Lal Ghose, Golap Lal Ghose and Pijush Kanti Ghose, Directors, and Golap Lal Ghose and Mrinal Kanti Ghose, the Managers of the Company called the 'Amrita Bazar Patrika Ltd.,'having its registered office at No. 2 Anando Chatterjee's Lane, Calcutta, and the Rule called upon them to show cause why they should not be committed or otherwise dealt with according to law for contempt of Court alleged to have been committed by them by unlawfully publishing the two articles concerning the High Court and the Chief Justice in his administration thereof.
2. The respondents to the Rule hare all appeared by learned Counsel.
3. The first question which it is neees-sary to consider is whether these articles or either of them constitute a contempt of Court. The appeals from Mr. Justice Greaves, to wbioh both the articles refer, are the appeals in the three cases mentioned at the head of the Rule. These cases were decided by Greaves, J., sitting on the Original Side, and the appeals in which the Improvement Trust were respondents were about to be heard by the Court hearing appeals from the Original Side at the time of the publication of the the two articles in May 1917.
4. The first article is as follows: There is a mischievous rumour afloat which should he contradicted. It is stated that a vigorous attempt is being made to get up a Bench to consider the appeal on the judgment of Mr. Justice Greaves in connection with the acquisition of surplus land by the Calcutta Improvement Trust according to somebody's choice. We do not believe that it is possible for any one, far less the Chairman of the Trust, to secure a Bench after his own heart as a counterpoise to the Mooker.jee and Cuming Bench. We are sure the interest of every rate-payer is safe in the hands of the Hon'ble Judges, and we do not think that any official of the Trust can go so far.'
5. The reference to the 'Mookerjee and Cuming Bench' is to an appeal which was disposed of by Mookerjee, J., and Mr. Cuming when he was temporarily acting as a Judge of the High Court in August 1916, when the decision was against the Improvement Trust.
6. The second article is as follows: Something like consternation prevails on account of the proposed new constitution of the appellate Bench of the Calcutta High Court before which appeals against the awards of the Improvement Trust are to be heard. It is known to the reader how this Bench was originally composed of Sir Asutosh Mookerjee and the Hon'ble Mr. Justice Cuming, and how latterly it has come to be presided over by the Hon'ble the Chief Justice and Mr. Justioe Woodroffe. Rumour has it that for purposes of hearing Improvement Trust Appeals the Bench is going to be strengthened by the appointment of Mr. Justice Chitty. Now what neither the public nor ourselves can understand is this special arrangement for such a Special Bench. If it is contended that two Hon'ble Judges of the highest Court in the land are not competent to decide in appeal cases in which the Improvement Trust is concerned, a contention, however, which we do not believe the Chief Justioe will care to advance, why should there be a Special Bench of three and not a Full Bench of five, on which at least two Indian Judges could find seats? As a matter of fact, as landowners in Calcutta are mostly Indians and as Indian Judges are likely to know more of conditions, practices, etc., prevailing here, it is but meet that the Appellate Bench in the present circumstances should be so composed as to associate Indian Judges with their European colleagues. The withdrawal of Sir Asutosh has given rise to rather unsavoury impressions in the public mind, since this proposed arrangement is to follow close upon the heels of his judgment in the case of The Improvement Trust v. Chandra Kanta Ghosh 35 Ind. Cas. 749 : 24 C.L.J. 246 : 44 C. 219 : 2 C.W.N. 8. Be that aa it may, we have perfect faith in the present Chief Justice and believe that as soon as Sir Lancelot Sanderson understands the public feeling in the matter, his Lordship will either form a Full Bench or at least associate an experienced Indian Judge with himself for the hearing of the Improvement Trust appeals.'
7. It was admitted by the learned Counsel for the respondents at the hearing of the Rule that the statements of facts contained in this article were in' many material respects untrue. There was not an Appellate Bench constituted to hear appeals against the awards of the Improvement Trust' as the article assumes. Such Bench was not originally composed of Sir A. Mookerjee and Mr. Justice Cuming as stated in the article: such Bench had not latterly come to be presided over by the Chief Justioe and Woodroffe, J., and it is untrue that Sir A. Mookerjee had been withdrawn from the Court.
8. Though these admissions have been made, it may be advisable to state the real facts.
9. In August 1916, as already stated, Mookerjee, J., and Mr. Cuming were sitting as a Division Bench on the Appellate Side and an appeal by the Improvement Trust from the Sub-Judge of the 24-Perganas, having come before them in the ordinary course, was disposed of by them. One of the questions was the alleged power of the Improvement Trust to acquire land compulsorily for the purpose of recoupment and the decision, was against the Improvement Trust.
10. In July 1916, Greaves, J., sitting on the original side, had decided the same question in three cases in favour of the Improvement Trust, and in May of this year the appeals from Greaves, J.'s judgment in the three cases were about to be heard by Woodroffe, J., and myself, the Judges who were then taking the appeals from the original side. Under these circumstances the articles were published.
11. As regards the inclusion of Chitty, J., in the Court, no explanation is necessary: it would be sufficient for me to state that I, as Chief Justice, thought it desirable to have three Judges to bear the appeal. But the reason in this case must have been obvious to every one. It was within my knowledge, as it was within every one's knowledge, that Mookerjee, J., had decided one way and Greaves, J., had decided another way on the construction of the 'Act on which the cases depended. It was obviously, therefore, a matter on which difference of opinion was possible; moreover it was a case of general importance and in order to avoid a further disagreement which might occur if the Court was constituted of two Judges only, and to avoid the further proceedings and delay which would undoubtedly be consequent on such a disagreement, I thought it advisable to have three Judges instead of two, and accordingly I requested Chitty, J., the next Judge in order of seniority who had not already had the matter before him, to sit with Woodroffe, J., and myself, and hear the appeals. I may mention here that in my opinion all appeals from a Judge sitting on the original side, except interlocutory appeals, should be heard by a Court constituted by three Judges, and when I first sat in this Court it was so constituted; but I found that the allocation of three Judges to that Court dislocated the work in other departments of the Court so much that I came to the conclusion with much reluctance that with our present staff of Judges I could not allocate more than two Judges to the original side appeals, except in special cases.
12. These being the facts, I now proceed to consider whether the articles are a contempt of Court.
13. I take the definition given by Lord Russell of Killowen in Reg. v. Gray (1900) 2 Q.B. 36 at p. 40 : 69 L.J.Q.B. 502; L.T. 534 : 48 W.R. 474 : 64 J.P. 484 : 16 T.L.R. 305.
Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or to lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice, or the lawful process of the Courts, is contempt of Court. The former class belongs to the category which Lord Hardwicke, L.C., characterised as 'scandalising a Court or a Judge.' That description of that class of contempt is to be taken subject to one and an important qualification. Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court. The law ought not to be astute in such cases to criticise adversely what under such circumstances and with such an object is published; but it is to be remembered that in this matter the liberty of the press is no greater and 'no less than the liberty of every subject of the Queen.
14. With regard to the first article I have no doubt it constitutes a contempt of Court. It was admitted by the learned Counsel appearing for the printer and publisher that it was a gross libel upon the Improvement Trust, one of the litigants. It alleges that it is stated that a vigorous attempt is being made to get up a Bench to consider the appeal on the judgment of Greaves, J., in connection with the acquisition of surplus land by the Calcutta Improvement Trust according to somebody's choice, which Bench is referred to thereinafter 'as a counterpoise to the Mookerjee and Cuming Bench,' which, as I have stated, had decided against the Improvement Trust. It was urged that this should not be regarded as a contempt, because the matter which would be argued on the appeals was the construction of an Act, and would be decided by Judges who would not be affected by such remarks.
15. The question is not whether the article in fact obstructed or interfered with the due course of justice, but whether it is 'calculated' to obstruct and interflre with the due course of justice. No matter what the tribunal may be, I am at a loss to understand how it can be seriously argued that such a grave allegation against one of the litigants that he was attempting to get a Bench constituted in such a way as would in his opinion give him a favourable decision, is not calculated to obstruct or interfere with the course of justice. Further, the mere suggestion that such a thing is within the bounds of possibility is a grave reflection upon the Court and the persona responsible for its administration. I am not unmindful of the argument that the article refers to a 'mischievous rumour which should be contradicted' and that confidence is alleged in the Hon'ble Judges. The fact that the article is based on a rumour, even if it existed, cannot, in my judgment, excuse the publication of it. It must have been known to the person responsible for the publication that it was absolutely impossible for a litigant to get a Bench constituted according to his own choice. It is, however, a well-known method of spreading a libel for the publisher, who does not wish to take responsibility for it, to say there is a rumour to this or that effect, but that he himself does not believe it. It was admitted by one of the learned Counsel for the respondents that some words may have been inserted in the article by the person responsible therefor in order to protect himself in case of emergency, and having regard to the whole tenor of the article, I have very little doubt that this was the object of the writer in concluding in the manner referred to. If the matter had stopped there, although the paragraph was reprehensible and a clear contempt of Court, it might not have been necessary for the Court to take any steps of its own motion.
16. The second article, however, appeared four days later on the 22nd May. As already mentioned the facts therein stated are admittedly untrue; and consequently the insinuations based thereon are equally groundless. The only part of the article which is based on an alleged remour is that Chitty, J., was to be appointed to the Bench, which was to hear the Improvement Trust Appeals. For the rest of the statements in the article the author makes himself responsible.
17. The statement that 'something like consternation prevails on account of the proposed new constitution of the Appellate Bench' taken by itself is a grave allegation. Why should a Bench which is to be composed of the Chief Justice and two of the most experienced Judges of the Court cause consternation? But when it is taken with what follows it assumes a much more serious complexion. After misstating the facts as to the previous constitution of the Bench and referring to the proposed inclusion of Chitty, J., it proceeds 'now what neither the public nor ourselves can understand is this special reason for such a Special Bench.' It then proceeds to argue that the proper thing would have been to have a Full Bench on which at least two Indian Judges could have seats. Beading so far, there may be some reason for doubt as to the meaning of the article, though the above allegations go the length of alleging that for some reason which no one could understand, the Chief Justice was about to include Chitty, J., in the Bench, and that such constitution of the Bench had caused something like consternation. But I think all doubt is set at rest by what follows when the author makes himself responsible for the statement that Mookerjee, J., has been withdrawn from the Bench and that such withdrawal has given rise to rather unsavoury impressions in the public mind, since this proposed arrangement is to follow close upon the heels of his judgment in the case of the Calcutta Improvement Trust v. Chandra Kanti Ghosh 35 Ind. Cas. 749 : 24 C.L.J. 246 : 44 C. 219 : 2 C.W.N. 8..' Reading that in the ordinary way, can it mean anything except that Mookerjee, J., has been withdrawn from the Bench, taking the appeals against the awards of the Improvement Trust: that suoh Bench was originally composed of Mookerjee, J., and Cuming, J., that it is now composed of the Chief Justice and Woodroffe, J., that Chitty, J., is about to be included which is a special arrangement which neither the author of the article nor the public can understand, that if any special arrangement is necessary why should not Indian Judges be included and that the withdrawal of Mookerjee, J., coming as it does so soon after his judgment against the Improvement Trust, has caused an unsajpoury impression in the public mind. Consequently, something like consternation prevails at the proposed new constitution of the Bench.
18. I think it is clear that it means that Mookerjee, J., has been withdrawn from the Bench taking the appeals against the award of the Improvement Trust and insinuates that it is because of his judgment against the Trust, and, therefore, an unsavoury impression has arisen. I fail to see any other meaning which can be attributed to it, and I have no doubt that this article, read by itself constitutes a very serious reflection upon the administration of the Court, which everyone knows is in the hands of the Chief Justice. But if it is read in conjunction with the previous article, the above-mentioned meaning is made plain beyond dispute. I think the articles should be read together. They were published with only four days' interval, they refer to the same subject-matter, they are written in the same strain and in the same style, and each article appeared in the colums of the newspaper which are devoted to leading articles. When read together what do they mean? It is obvious to my mind they mean to suggest that a vigorous attempt had been made by the Improvement Trust to secure a Bench composed according to their choice and that the attempt has succeeded; that otherwise the proposed constitution of the Bench is inexplicable and something like consternation prevails. If this be the correct meaning, there is no doubt that it is calculated to bring the Court and the Chief Justice, who is responsible for its administration, into contempt and it is calculated not only to destroy confidence in the tribunal but also to undermine and impair the authority of the Court. If so, there is no doubt that it is a contempt of this Court.
19. There are two other matters to which I wish to refer. It was argued that the object of the second article was to procure the appointment of two Indian Judges or one Indian Judge to the Bench which was to hear the appeals, and the suggestion contained in the article was that as the land-owners in Calcutta were mostly Indians, and Indian Judges are likely to know more of conditions and practices prevailing, that it was but meet that Indian Judges should be associated with their European colleagues. The question at issue in the appeals depended on the construction of the sections of a certain Act, and had nothing to do with the conditions and practices, etc., relating to Indians. This, however, might be put down to ignorance on the part of the author of the article, though from the references made in the article to such matters as the constitution of the Courts, Full Bench and other matters, the writer appears to be fairly familiar with the proceedings of the Court and the nature of the appeals in question. A futher argument, however, was adduced by the learned Counsel for Moti Lal Ghose, vie., that the real object of the article was to get an Indian Judge, who possessed land, appointed to the Bench in question, because Indian Judges would approach the subject from a totally different point of view from that of European Judges, who do not possess land and who do not know where the shoe pinches. This to my mind was an astonishing argument. I was not surprised, therefore, when Mr. C.R. Das, appearing for another of the respondents at a later stage of the hearing, disassociated himself from that argument and stated that in his opinion the above-mentioned argument would be the strongest ground for suggesting that Indian Judges should not be on the Bench in question. Assuming, however, that the learned Counsel for Moti Lal Ghose was correct in his statement as to the meaning and object of the article, it is not only one which would be rightly and strongly resented by my Indian colleagues but it also provides an additional reason for holding the article a contempt of Court: for it involves the suggestion that one of my Indian colleagues should be added to the Bench in question because he possessed land and would approach the question from a different point of view from a Judge who possessed no land and who would, therefore, be entirely independent and it thereby constitutes a very grave and unjustifiable reflection on my Indian colleagues.
20. It is also to be noted that if this was the object, the author of the articles was endeavouring to obtain the constitution of a Bench after his own heart, the very thing which he had professed to condemn so strongly when attempted, as alleged, by the Improvement Trust. Assuming, however, that the object of the article was to get an Indian Judge appointed, no matter for what reason, that does not justify the publieation of the untrue statements of facts and the unworthy and groundless insinuations based thereon.
21. The other matter to which I refer is the passage at the end of the article in which the author expresses perfect faith in the Chief Justice. This, to my mind, is so inconsistent with the insinuations previously made in the articles, that it is impossible to conceive that it was genuinely intended. It is much in the same style as the conclusion of the previous article, and I do not think there can be any doubt as to the object of the author in using these words, viz., to try and provide a means of escape for himself if he is taken to task for the pre-vious matter contained in his article.
22. No one has come forward to acknowledge the authorship of the articles or the responsibility of the publication, and we have, therefore, had no opportunity of hearing or considering any explanation from the individual, in person, who was so responsible. Consequently the meaning and the intention of the writer must be gathered from the articles themselves. They mast be read as they stand, giving to the words used their natural meaning. We have had many arguments and many commentaries upon the articles addressed to us by all the learned Counsel on behalf of the respondents. I have considered them carefully and though I should like to have come to the conclusion that the articles do not and were not intended to constitute an attack on the Court, I regret to say I am unabla to come to that conclusion. It might possibly have been different if the author of the article or the person responsible for its publication had come forward and personally explained what was in his mind; but he has not chosen so to do, and we mast construe the articles as they stand, and I have no doubt that any one reading them would come to the conclusion that a very serious aspersion waa cast upon the Coarfc and the administration thereof, and that consequently they do constitute a contempt.
23. If then the articles constitute a contempt the next question is, whether the Court has jurisdiction to deal with it by these proceedings. There can be no doubt as to this: it was held in 1883 in Surendra Nath Banerjee v. Chief Justice of Bengal 10 C. 109 : 10 I. A, 171 : 4 Sar. P.C.J. 474 : 5 Ind. Dec. (N.S.) 76 by the Judicial Commitee that the High Courts in the Indian Presidencies are Superior Courts of Record. The offence of contempt of Court and the powers of the High Court to punish it are the same in such Courts as in the Superior Courts in England, and the jurisdiction was exercised by the High Court in that case.
24. This jurisdiction was affirmed in 1913 in the case of Governor of Bengal v. Moti Lal 20 Ind. Cas. 81 : 41 C. 173 at p. 176 : 18 C.L.J. 452 : 14 Cr. L.J. 321 : 17 C.W.N. 1253, when Sir Lawrence Jenkins, C.J., said at page 215 Pages 41 G.--Ed: 'Now this Court is a Court of Record in all its jnrisdictions, and it thus has power to commit for any contempt in relation to any of those jurisdictions.'
25. Then Mookerjee, J., at page 242 said: 'Now, it is indisputable that a Court of Record has authority to punish for contempt. Sir Barnes Peacock, C.J., observed in Abdool and Mahtab, In re 8 W.R. Cr. 32 that this Court by the express terms of the Letters Patent is a Court of Record and there can be no doubt that eve) y Court of Record has the power of summarily punishing for contempt', and indeed the learned Counsel appearing for the printer and publisher of the newspaper admitted the jurisdiction of the Court but argued that in this case it should not be exercised. The suggestion that this jurisdiction is obsolete and ought not to be exercised is futile, in view of the fact that it was exercised Joy this Court in 1883 and affirmed to be in existence in 1913. It was also exercised in England as recently as 1900 in the case of Reg, v. Gray (1900) 2 Q.B. 36 at p. 40 : 69 L.J.Q.B. 502; L.T. 534 : 48 W.R. 474 : 64 J.P. 484 : 16 T.L.R. 305. already referred to.
26. The question remains then whether the Rule should be made absolute against the respondents or any of them.
27. As regards the case of Tarit Kanti Biswas, the first respondent on the record', there is evidence that he was the printer and publisher of the newspaper. We have before us a certified copy of the return made by him under the Act (XXV of 1867), his name appears in the newspaper as printer and publisher and he has himself put in an affidavit admitting that he occupies such position and that he printed and published the articles in question.
28. As already stated, his learned Counsel admitted the jurisdiction of this Court and further admitted his legal responsibility if the articles constituted a contempt. This responsibility could not be denied, for it has been held in many cases that the printer and publisher is liable for contempt even though he was not aware of the subject constituting such contempt, and the reason for that is given by Lord Morris, in Mc. Lead v. St. Aubyn (1899) A.C. 549 : 68 L.J.P.C. 137 : 81 L.T. 158 : 48 W.R. 173 : 15 T.L.R. 487 as follows: 'A printer and publisher intends to publish and so intending cannot plead as a justification that he did not know the contents.' Againit was pointed out by Stirling, J., in American Exchange in Europe v. Gillig (1889) 58 L.J. Ch. 706 at p. 707 : 61 L, T. 502 that the foreman printer (who was the person concerned in that case) is the person who is held out to the public as the publisher, and under these circumstances he is answerable for publishing the article complained of although he is ignorant of its contents. This has been the law since the well-krown decision of Lord Hardwicke in the case of St. James Evening Post (1742) 2 Atk, 469 : 26 E.R. 683.
29. I refer to the above-mentioned cases to show that in my judgment the learned Counsel was correct in making the admission that this Court has jurisdiction in these proceedings, and that if the articles constitute a contempt of Court, the printer and publisher is legally liable in respect thereof.
30. Having held that the articles are a contempt, it remains to be considered whether the Rule should be made absolute. The printer and publisher has put in an affidavit in which he alleges he did not read the articles when they were handed to him for publication, which was done in the ordinary course of his business. He admits that certain statements in the second article are incorrect, and he then proceeds to argue that the publication was in the public interest. Paragraph 6 of his affidavit runs thus:
That I further state that the said articles were published by myself in good faith and in the public interest and without any intention whatsoever of offending against the dignity or integrity of this Hon'ble Court or of prejudicing the due course and administration of justice in the matter of the appeals referred to in the said articles.
31. 7. That long before the appeals referred to in the said article came on to be heard by this Hon'ble Court, it was well known among the public of Calcutta how the Calcutta Improvement Trust had objected to the hearing of the appeal in which the question of the powers of the Calcutta Improvement Trust was involved by any of the Indian Judges of this Hon'ble Court and how, as a matter of fact, they through their Counsel, Mr. Langford James, adopted the very unusual course of applying in open Court to the Hon'ble the Chief Justice that the appeal case of Trustees for the Improvement of Calcutta v. Chandra Kanta Ghosh 35 Ind. Cas. 749 : 24 C.L.J. 246 : 44 C. 219 : 2 C.W.N. 8. should not be heard by the Hon'ble Mr. Justice Mookerjee, and how after the decision in the last mentioned case by the Hon'ble Mr. Justice Mookerjee and the Hon'ble Mr. Justice Cuming they had unsuccessfully applied to the Government for legislation for the purpose of doing away with the effect of the said decision. In the circumstances recited the public were watching with deep interest the action of the Hon'ble the Chief Justice, in constituting the Court which would hear the appeals from Mr. Justice Greaves' decision.
32. 8. I further state that the said articles were published to give expression to public feeling in Calcutta and, as stated above, without the remotest intention of scandalising this Hon'ble Court or of reflecting on the conduct of the Hon'ble the Chief Justice or of any other Judges of this Hon'ble Court.
33. If it be true that the public were watohing with such deep interest the action of the Chief Justice in constituting the Court, it seems to me that fact enhances the serious nature of the publication of the articles. For the public in the ordinary course might not trouble its head about the constitution of the Court, and might not pay much attention to the articles; but if, on the other hand, the public really was interested in the matter, it would pay attention to them, and it was all the more incumbent upon the author and publisher to abstain from making false statements and groundless insinuations. I may have my doubts as to the deep interest' alleged in the affidavit, but if it did exist, the seriousness of the publication is greatly increased.
34. The learned Counsel for the printer and publisher urged that his client would be sufficiently dealt with by the proceedings which had been taken and that the Rule should not be made absolute against him. I take into consideration all the learned Counsel urged and I sympathise with his argument that the editor if there be one, or the person responsible for the publication, ought in common fairness to have come forward and borne the burden in respect thereof; the fact that the printer and publisher does not disclose the name of the p'erson responsible for the publication is a factor to be considered when deciding how the printer and publisher should be dealt with. In this case, the printer and publisher has not disclosed the person responsible for the publication, whom of course he must know, though he may not know the actual writer of the articles. On the contrary he has attempted to justify the publication by the paragraphs of his affidavit to which I have referred. It was said by Lord Hardwicke in the case already cited, 'nothing is more incumbent upon Courts of Justice than to preserve their proceedings from being misrepresented;' and the reason for this must be obvious to every one. My attention has been drawn on other occasions to articles criticising the High Court. I have found that many of them were unjustifiable, because they were based on statements of facts which were incorrect: but the Court has not taken any notice of them because they were not worth the time of the Court. But this is a different matter, the allegations contained in the articles exceed the bounds of any legitimate criticism and strike at the very root of the administration of justice.
35. People who are familiar with the administration of the Court would know how impossible the allegations were, but among people who are not so familiar with the Court's administration, such articles as those in question with their groundless insinuations may be very mischievous and pernicious. They contain grave misrepresentations of the proceedings and administration of this Court, and in my judgment we should be failing in our duty if we did not take such steps as are within our power to counteract the effect of them and to vindicate the Court and its authority.
36. In my judgment, therefore, the Rule should be made absolute against Tarit Kanti Biswas, the printer and publisher.
37. As regards the other four respondents, the evidence before us, apart from the question of its admissibility on the technical grounds which were put forward during the argument, raised a strong prima facie case that they were responsible for the publication of the newspaper containing the articles.
38. The 'Amrita Bazar Patrika Co., Ltd.,' was incorporated in 1908, the original Directors being Sisir Kumar Ghose, Moti Lal Ghose and Golap Lal Ghose, for the purpose of acquiring and taking over as a going concern the business of newspaper proprietors, printers and publishers then carried on, and in connection therewith the entire rights including the goodwill of the newspaper called the 'Amrita Bazar Patrika,' then being published from 'No. 2, Ananda Chatterjee's Lane, in Calcutta and all or any of the assets and liabilities of the proprietors of the business in connection therewith, and with a view thereto to enter into the agreement referred to in Clause 3 of the Company's Articles of Association and to carry the same into effect with or without modification, with the usual subsidiary powers contained in the Memorandum of Association.
39. The Company gave the statutory notices that it intended to carry on its business at No. 2, Ananda Chatterjee's Lane, which was to be deemed its registered office: that it possessed a printing press at 19 and 20, Bagbazar Street, which the Company purchased from Golap Lal Ghose, On the 5th March 1917, the respondents Moti Lal Ghose, Golap Lal Ghose and Pijush Kanti Ghose were the Directors. Golap Lal Ghose and Mrinal Kanti Ghose were the Managers, and it further appeared that Golap Lal Ghose apted as Financial Manager and Mrinal Kanti Ghose as Secretary. The address of all the four was given No. 2, Ananda Chatter-jee's Lane. The Articles of Association (which were put in evidence by M. K, Ghose) provided that the business of the Company should be managed by the Directors, who might pay all expenses incurred in getting up and registering the Company and might exercise all such powers as are not by the Indian Companies Act required to be exercised by the Company in general meeting subject to the provisions of the Act and of the Articles, etc.
40. It was obviously a family business converted into a Limited Company. This is confirmed by the list of persons holding shares exhibited in Mr. Hechle's affidavit. The evidence shows that the Directors and, Managers were living at the premises which are the registered office of the Company; that the newspaper was published at those premises; that it was the duty of the Directors to manage the business; there was no editor disclosed or any other person occupying a position similar to that of an editor who would be responsible for the publication and the contents of the newspaper.
41. From these facts it would naturally be presumed that these respondents were actually engaged in the management of the newspaper and personally responsible for its publication. These Directors were occupying positions very different from those generally occupied by Directors of Companies, whose duties are restricted to attending periodical meetings and directing the policy of the Company.
42. Two of the respondents, Pijush Kanti Ghose and Mrinal Kanti Ghose, however, have put in affidavits and it appears therefrom that Mrinal Kanti Ghose was away from Calcutta on private business at the time when both the articles in question were published, and that Pijush Kanti Ghose was away on private business when the second article was published and under these circum-, stances I think that the prima facie case aganist them may be said to have been met, and 1 do not think that either of them should be held responsible in these proceedings for the publication and that consequently the Rule should be discharged as against them.
43. There are, therefore, two Directors left to manage the business of this newspaper at the material times, viz., Mati Lal Ghose and Golap Lal Ghose. Golap Lal Ghose; in the evidence is described as Director and Manager and also as Financial Manager. Mrinal Kanti Ghose has sworni that Golap Lal Ghose has only, to do with receipts and disbursements of the Company and keeps the accounts thereof.
44. Under these circumstances, I think the prima facie case made against him may; be rebutted, and that he should not be; held responsible in these proceedings for the publication of the articles, even though it is not alleged that he was not at the premises when the paper was published at the material times, and in my judgment the Rule should be discharged against him.
45. With regard to Moti Lal Ghose, the case is different: I think under the circumstances mentioned above, it may not unreasonably be presumed that he was responsible for or privy to the publication. It was the Director's duty to manage the business: such business was the publishing of the newspaper: one of the three Directors was away from Calcutta another, it is sworn, had only the financial matters to attend to; Moti Lal Ghose, therefore, is the only Director to whom the particular duty of editing and publishing the newspaper can be ascribed. As already-mentioned, he, was not in the position of an ordinary Director, who makes periodical visits to the Company's premises at stated and regular intervals. He was living on the premises where the paper was published and carrying on the family business which had been turned into a Limited Company.
46. There is no Editor disclosed, and even in the affidavits which have been put in by Pijush Kanti Ghose and Mrinal Kanti Ghose there is no specific reference to any editor. There is a general statement only, e.g., the affidavit by Pijush Kanti Ghose runs as follows : 'Neither I nor my co Directors exercise any control whatever over the contents of the 'Amrita Bazar Patrika' newspaper, but we perform duties and exercise such powers as are men tioned and defined in the Articles of As sociation of the Limited Company.' This is not a convincing statement, It is to be noted that it does not go the length of saying that the Directors did not know of, or were not privy to, the publication of the articles: if they did know of the inclusion of the articles and allowed the newspaper containing the articles to be published, they would be responsible.
47. Further the main duty of the Directors mentioned and defined in the Articles of the Company' is to manage the business of the Company, which business is the publication of the newspaper. Under such circumstances the natural presumption would be, I think, that Moti Lal Ghose, either was responsible for, or at all events, was privy to the publication of the articles. But it has always been held that the jurisdiction which the Court has in respect of a contempt of Court should be exercised with great care and should only be exercised when the case is beyond all reasonable doubt, and this should especially be the case when the proceedings are at the instance of the Court itself. Moti Lal Ghose has made no affidavit nor has he offered any explanation of his position in connection with the newspaper at No. 2, Ananda Chatterjee's Lane, and if the above-mentioned presumption of responsibility were drawn against him, I do not think he could complain. But I think it is just possible that he may not have been responsible for or privy to the publication of the article. Although no reference is made to the existence of an editor, or some person in the position of an editor, it is still possible that there may be one who is not before the Court. For there is the general statement by Pijus Kanti Ghose and Mrinal Kanti Ghose made on oath that the Directors do not exercise control over the contents of the newspaper. Though this general statement be unsatisfactory, it cannot be wholly disregarded and it may be that the general control as to the contents of the newspaper may be vested in the hands of some person who occupies the position of an editor and who, for reasons known only to the respondents, has not been disclosed, and that consequently these articles may have been inserted without the responsibility or knowledge of Moti Lal Ghose. It is not likely that this was so, but still it is just possible and having regard to the principle that i proceedings of this nature we should ba scrupulously careful to see that the case is clear beyond all reasonable doubt, I think Moti Lal Ghose should be given the benefit of that doubt and that the Rule should not be made absolute against him.
48. In view of the attitude taken up by the respondent Directors, we considered whether a Rule should not be issued against the Company itself with respect to which the considerations which affect the positions of the Directors would not arise: but in view of the fact that the object of the proceedings, viz., the vindication of the Court and its authority, had been obtained by the proceedings already instituted, we came to the conclusion that it was not necessary to take up the time of the Court by adding the Company, which would necessitate a further hearing.
49. Before leaving the case of the Directors, I desire to refer to the attitude adopted by them. If the articles were innocently intended, the natural thing would have been for the person responsible for them, or for their publication, to come forward and declare his intention: on the other hand, even if they were not innocently intended, one would have expected the person really responsible for their publication to come forward and take the responsibility on his own shoulders as was done in the case of two well-known newspapers in Calcutta on previous occasions. They have chosen not to do so but to leave the printer and publisher to bear the brunt of the matter.
50. It is further to be noted that, although it was evident that the Court, by issuing the Rule, regarded this as a matter refecting upon the Court, although it has been admitted that the second article contained statements of fact which were entirely untrue, and consequently that the insinuations based thereon were groundless, although two of the respondents' learned Counsel admitted that the article, to say the least of it, was a piece of great impertinence, not one word of apology has fallen from the Directors of the Company.
51. As regards the many technical points raised by learned Counsel aa to the admission of the evidence, I do not think it is necessary for me to discuss them: none of them affect the case of the printer and publisher. I would only say that I have had the opportunity of reading Woodroffe, J.'s judgment, and I agree with him that most of them were trivial and unsubstantial. The Court was occupied over these proceedings for two and a half days: some part of the time no doubt was taken up by the discussion of the meaning of the articles, but the greater part was devoted to technical objections relating to the evidence and to the question as to who was really responsible for the publication. This fact shows how essential it is that the Legislature should provide for the registration of the editor or the person really responsible for the contents of a newspaper, so that the responsibility might be placed in the proper quarter without any difficulty or delay.
52. For the above-mentioned reasons, in my judgment, the Rule should be made absolute against Tarit Kanti Biswas, the Printer and Publisher, and it should be discharged as against the other respondents.
53. Woodroffe, J.--The arguments before us (other than those of Mr. Norton for the printer) would suggest that the parties regarded this Rule as an opportunity for a legal tamasha, to use an expressive if not judicial term, rather than as a proceeding taken in the public interest to ascertain the true facts. Divorced from the lengthy and unnecessary discussions before us and freed of obstructive tactics the matter is really quite a simple one and might have been decided with but little delay. In that case too our judgments might have been short but the exuberant argument calls for some answer.
54. The parties before us are the directors, managers, and secretary of the Amrita Bauar Patrika, Ltd.,' a small Company, seemingly a family business, which owns and runs a Calcutta newspaper called the Amrita Bazar Patrika. With them is joined their printer. Ordinarily of course a newspaper has an editor but this Company or some of its members have been very secretive on the question whether there is an editor and if so, who he is. This is not the first time that the editor, if there be one, has been kept in the background. Perhaps it was considered that such secrecy was a convenient policy in defence of proceedings against the paper. Whatever be the object these persons have so far successfully concealed the fact and name of their editor. In the present proceedings it was not unreasonable for the Court to think that a summons to the directors, managers and secretary was sufficient without notice on the company and that the officers of the company would disclose the actual facts. What actually occurred at the trial has shown that no assistance can be expected from the company's officers and on a future occasion it will be necessary to consider whether the Court should not proceed against the company and its property. Such difficulties as we have experienced would be remedied were a law enacted compelling the registration of the names of editors just as the English Newspaper and Registration Act, 1881, (44 and 45 Vic. c. 6) compels the registration of the names of the proprietors. As the Court was not in possession of evidence whether there was an editor or who he was, proceedings were instituted against those persons who are empowered to manage the business of the company and against its printer.
55. On the 18th and 22 May last two articles appeared in this newspaper which seemed to the Chief Justice in consultation with the Judges of the Court to be a contempt. The writer circulates what he calls 'mischievous rumours' and 'unsavoury impressions' and makes statements which suggest that a litigant before the Court, namely, the Calcutta Improvement Trust, had been successfully intriguing to get a Bench of its choice to hear an appeal from the decision of Greaves, J. As such an intrigue could not succeed without the connivance of the Court, such a statement was scandalising the Court as it is technically called. Nextly, as the allegation of such an intrigue touches the party said to be carrying on this intrigue the tendency of suoh writing is to prejudice that party. Thirdly, the articles are calculated to interfere with the administration of justice, for the writer seeks to do, though in his own way, what he complains of in the case of the litigant Trust, namely, to influence the Chief Justice to form a Bench to hear the appeal in question, the Bench to be of such composition as the writer approved. As it seemed to the Court that prima facie a contempt had been committed, a'Rule was served upon the persons mentioned to show cause: that is, they were given the opportunity of showing that the articles were not contemptuous, and if they were, that they were not responsible for them.
56. The parties whom we called for, have come before us. Leaving aside the printer, their substantial contention (to be extracted from the general mass of objections and arguments) is that the business in which they are each engaged has nothing to do with the control of the contents of the paper; that is, their work is not of an editorial character. One of them swears that he was out of Calcutta when both the articles were published and another that he was away from Calcutta when the second and chief article appeared, The printer says that he has no control of the contents of the paper and that he printed what was given him without first reading it. Two parties, Moti Lal Ghose and Golap Lal Ghose, have filed no answer at all. All parties have refused to state whether there is an editor, but they all contend that we are quite mistaken in supposing that the articles are a contempt. On the contrary we are told that the writer of these articles was a man who had perfect faith and confidence in the Chief Justice and Judges; that he was solicitous for their honour and was only seeking to protect and counsel the Court from and in respect of certain 'mischievous rumours' and 'unsavoury impressions.' In short he was the Court's benefactor who thought that if it would but follow his advice as to how it should conduct its business, it would escape the 'unsavoury' imputations which the public were making against it. This was said by some of the learned Counsel to be so clear that Mr. Jackson affirmed that no case could be found in all the reports which approached the present one in the weakness of the alleged contempt. If there be anything in all this, what should the parties have donep Each of the directors should have put in an affidavit exculpating themselves from being privy to the publication. The reading and examination of these affidavits might hava taken half an hour. If these affidavits were accepted as truthful and the editor had been named, these parties other than the printer would have been discharged within about half an hour of their appearance before us instead of, as now, after a protracted argument for three days. We should have then expected that the parties would have named and produced their editor, the more particularly that the articles for which he would have been responsible are alleged to be of a wholly innocuous character, and their author to be one who cherishes the honour of this Court and would be its adviser and protector. But strange to say, this man of alleged good and disinterested motives is not named or produced. What had he or the parties to fear assuming that their argument as to the meaning of the articles is correct. Can it be said that notwithstanding such excellent intentions he was yet afraid that we might deal with him unjustly? If so, the writer's professions of his perfect faith and confidence in the Court are a pretence. If he had come here and had explained what notwithstanding the form of his expression he actually meant; if he had come here and said (as has been suggested by others in his absence) that he gave no credence to these rumours, that he personally made no suggestion against the Court, which in fact he was seeking to counsel and protect: if, I say, he had satisfied the Court of his innocence, then he too would have been discharged, and necessarily with him the printer. As a fact, the position taken up before us is 'we refuse yon all information. Prove what you can againsjt us.' Such affidavits as have been put in show that they have been elaborately drawn so as to keep out information. If, as in my opinion, there is a case made out, calling for an answer, it is obvious that the non disclosure and non-production of the editor or writer leads to the inference that he or they are withheld because upon a true construction of the articles they do in fact constitute a contempt and that there is no reality in the argument which would have us hold that there was no contempt at all. If so, why all this secrecy and technical objections as to jurisdiction, procedure, nature of contempt, evidence and so forth?
57. It is first objected that we have no jurisdiotion and if we have and if there was a contempt, the affidavits issued with the Rule do not make any case calling for an answer, and if it did call for an answer on the assumption that the articles constituted a contempt, they are not a contempt in fact, and lastly, if they do constitute a contempt, two of the parties were not in Calcutta at the time of the publication of one or both of the articles.
58. As regards jurisdiotion a number of stale objections were taken. It is not necessary to go into the history and nature of contempt. It is too late now to contend that we have no other jurisdiction than that conferred by the Indian Penal Code or that in exercising this jurisdiction we are judges in our own cause. The jurisdiction has been approved many years ago by, amongst other Judges, their Lordships of the Privy Council. The second observation applies to all cases of contempt, and if it were given effect to, the Court would be deprived of its jurisdiction in every case. In the present one, the Court, as it is entitled to do, issued the Rule of its own motion. The Court, however, in such cases does not seek to vindicate any personal interests of the Judges but the general administration of justice, which is a public concern. It is not a fact that proceedings for contempts by scandalising the Court are obsolete, as Mr. Jackson argued. There are, moreover, special reasons in this country why this jurisdiction should be maintained, which I need not here develop. I may, however, refer in this connection to the observations in McLeod v. Aubyn(1899) A.C. 549 : 68 L.J.P.C. 137 : 81 L.T. 158 : 48 W.R. 173 : 15 T.L.R. 487, The point of jurisdiotion has been laboured with a view to establish the point that the case before us should be decided as a criminal one. It is what is called a 'criminal' contempt, but all proceedings whether in respect of civil or criminal contempts are, in my opinion, of a criminal nature in the sense that they are in pcenam, that is, when their object is to punish by fine or imprisonment. It does not, however, follow that the procedure in such cases is in all respects the same as an ordinary criminal case. It is obviously not. For if it were, the parties before us would have been in the dock (not to speak of other matters) no affidavits could have been filed by or against them. In fact both the offence as also the jurisdiotion and procedure under which it is tried are sui generis. As regards the question of proof, no case either civil or criminal should be tried and determined otherwise than according to the law governing it. It is not the fact that civil proceedings may be slack and criminal proceedings must be strict. A dereliction of duty may, of course, be of greater or less moment according to the nature of the proceeding in which it happens. As regards the standard of proof I would repeat what was held in Weston v. Peary Mohun Das 23 Ind. Cas, 26 : 40 C. 898 : 18 C.W.N. 185, that there is but one rule of evHence which in India applies to both civil and criminal trials and that is contained in the definition of 'proved' and disproved 'in Section 3 of the Evidence Act. Whether the case is civil or criminal, a fact is only proved or disproved if it comes within the terms of that section. It may be conceded that the case against the persons before us must be proved strictly, which means according to law. That charge is that the two sets of parties before us, namely, printer and publisher of the newspaper Amrita Bazar Patrika' and the directors and manager of the Amrita Bazar Patrika, Ltd.', committed acontempt of Court by publishing and being privy to the publication of the articles of the 18th and 22nd May set out in the affidavit of the Registrar. The first question is whether these articles constitute a contempt of Court, and then if so, who, if any, of the parties before us are responsible for it. Learned Counsel who appeared for the various parties have offered different arguments as to the construction of the articles. The actual facts whish are undisputed are that some cases were instituted against the Calcutta Improvement Trust on the original side of this Court before Greaves, J., which failed, that learned Judge holding that the Calcutta Improvement Act gave the Trustees a power to acquire land by way of recoupment. Another case against the same Trust came up for hearing on appeal from the Moffussil. Previous to the hearing by this latter Bench on the appellate side of the Court an application was made by Counsel for the Trust to the Chief Justice for the transfer of the case from the last mentioned Bench on the ground that Mookerjee, J., was a landowner and, therefore, personally interested. That application was refused, on the ground that the learned Judge would himself determine whether the circumstances were such that he should hear the case or not. The objection was not repeated before the learned Judge himself and the case was then heard on the appellate side of the Court by Mookerjee and Cuming, JJ., who held that the Trustees had no such powers. After that there was then an appeal to the Privy Council by the Trust against the decision of Mookerjee and Cuming, JJ., and an appeal by the parties suing the Trust against the decision of Greaves, J., to this Court hearing appeals from the original side. The Judges who had been previously taking such appeals were the Chief Justice and myself. On the 18th May 1917, the first of the articles appeared. Its salient points are these;--It alleges the existence of a 'mischievous rumour which should be contradicted.' The writer does not himself contradict the rumour but gives it further currency. That rumour was stated to be that an attempt was being made by or on behalf of the Calcutta Improvement Trust 'to get up' and 'secure' a Bench after its 'own heart' to deal with the appeal from the decision of Greaves, J., so that that Bench might act 'as a counterpoise' to the Bench of Mookerjee and Cuming, JJ. Expressing confidence in the Judges the writer says that he does not think that any official of the Trust 'can go so far.'
59. The Benches of this Court are appointed by the Chief Justice, it may be, in some cases, after consultation with the Judges. It is of course plain that a litigant could not 'get up 'or' secure' a Bench of his own choice 'and after his own heart except with the complicity of the Chief Justice or Judges. Of this the writer of the articles is well aware, for he says that he is sure the interest of every rate-payer is safe in the hands of the Hon'ble Judges,' and he 'does not think that any official of the Trust can go so far, 'As I have said, the original side appeals were then being heard by a Bench of two Judges, namely, the Chief Justice and myself. A hearing of original side appeals by two Judges is not a convenient one nor in conformity with old practice, but it has been in exist-ence for several years since Sir Lawrence Jenkins' time owing to the great bulk of work and the shortage of Judges to deal with it. It is not convenient, because it is advisable that there should be a third Judge to turn the scale in cases of difference of opinion. As the appeals under consideration involved a question of great public interest and might involve a reference to a Full Bench, the Chief Justice with my concurrence determined to appoint a third Judge to meet the possible case of a difference of opinion and a practically infructuous hearing. A third Judge has been added to the usual Bench of two Judges on previous occasions. The third Judge added was Chitty, J., the next senior Judge to myself excluding Mookerjee, J., who had tried the Improvement appeal which raised the same, question as that which the appellate Court hearing the appeal from Greaves, J.'s decision had to determine. Before the constitution of the Bench was actually published, the second article of the 22nd May appeared. That article is based on a number of misstatements. It wrongly assumes that there was an Appellate Bench constituted to hear 'appeals against the awards of the Improvement Trust.' It wrongly states that this supposed Bench was composed of Mookerjee and Cuming, JJ. It then wrongly states that this Bench had latterly come to be presided over by the Chief Justice and myself. It then says that the 'withdrawal' of Mookerjee, J., (which is not true) had 'given rise to rather unsavoury impressions in the public mind' since this supposed 'withdrawal' and supposed re constitution of the Bench followed close upon the heels of his judgment' in the case I have mentioned. The suggestion involved in these alleged impressions is of course that Mookerjee, J., who is supposed to have had charge of Improvement Trust cases, was 'withdrawn' because he had decided against the Trust. He could not himself 'withdraw' of his own motion, nor can any one else but the Chief Justice who appoints the Benches. But why should he be so 'withdrawn p' The first article suggests the reason, namely, that the Improvement Trust was endeavouring to get up and secure a Bench after its own heart as a counterpoise to the decision of Mookerjee and Cuming, JJ. Then it says, 'something like consternation prevails on account of the proposed new constitution of the Appellate Bench,' that is, by the substitution of the Chief Justice and myself for Mookerjee and Cunning, JJ., the 1 withdrawal' of Mookerjee, J., which had given rise to rather 'unsavoury impressions,' the addition of Chitty, J., and the non-selection of any Indian Judge. It suggests that the presence of one or more of these was necessary because of their knowledge of local conditions. I may here observe that the printer sought to prove good faith by, amongst others, the allegation that it was well known that the Trust objected to their case being tried by any Indian Judges. The point before the Court in the Trust cases was a pure question of law equally well triable by either an English or Indian Judge, unless we accept Mr. Jackson's strange argument (from which Mr. C.R. Dass dissented) that that Judge is best qualified to try such cases who is interested therein by reason of his possession of land in Calcutta. Beading this second article in connection with the first, the inference to be drawn from it, in the absence of any explanation from its writer, is that the alleged machinations of the Trust to secure a Bench 'according to somebody's choice' had succeeded and that the Bench which was to hear the appeal from the decision of Greaves, J., was packed. Of course, there is no question but that if this was the suggestion, there has been a gross contempt of Court. Mr. Norton who appeared on behalf of the printer and publisher contended that the two articles should not be read together. There is no substance in this. But he frankly conceded that if the two articles be read together then they were capable of the above-mentiond interpretation, though he did not admit that that was meant, and suggested that the writer did not understand the meaning of the word unsavoury,' But how can we say that when the writer and editor are not before us
60. Mr. Jackson's argument lends support, though perhaps unconsciously, to the construction I give to these articles. For he has endeavoured to re-construct what he called the atmosphere in which they were written with a view to show that the writer acted in the public interest and in good faith. But when a person has written nothing which is prima facie an offence, a plea of good faith is unnecessary. It is only relevant on the assumption that the articles do on their face appear to be contemptuous. It is then said that the writer was only repeating rumours to which he himself did not give credence. One cannot escape either contempt or libel merely by alleging that there was a rumour. This is a common way in which libels are spread. The existence of a rumour, if there was one in fact, is no justification in itself for its repetition. Moreover, the writer associates himself with these alleged public suspicions. Thus he says, 'now what neither the public nor ourselves can understand', and so forth. And in further dealing with the matter he refers to a contention which the Chief Justice will not 'care to advance.'
61. Then it is said that the writer was merely stating the existence of these 'unsavoury impressions in the public mind' in the interest of the Court so that they might be contradicted. It is said that he has more than once expressed his perfect faith and confidence in the Chief Justice and Judges. That is so. It is an obvious question to ask why, if the writer meant no offence but was only acting for the Court's good, he was not brought forward. What had he to fear? Will it be suggested that the fear is that nevertheless the Court might deal with him unjustly? If so, this is, as I have said, the strongest argument against the sincerity of his professions of faith and confidence in the Judges. In my opinion, it is not possible to accept an argument that the writer meant no offence and was merely acting in protection of the Court from unsavoury public impressions, when he is not even named much less brought forward. Moreover, the article itself does not, in the absence of any explanation from him, support this view. It states certain alleged rumours. It misstates the facts which are supposed to he the cause of these rumours. It does not contradict these rumours and say and show that there is nothing in them. It on the qontrary gives them circulation, The writer associates himself with those who are said to entertain these alleged unsavoury impressions. He writes in a way open to the inference that the alleged manoeuvres of the Trust had succeeded. It may be that these expressions of faith and confidence and so forth were insetted, to use an expressive phrase of Counsel, for the 'protection' of the writer. It is possible that if the editor or writer had appeared before us, he might have succeeded in showing that, however apparently unfavourable to him the language of these articles is, yet in fact no offence was intended. But he is not produced and we must give them what seems to us their natural meaning. It has been held that even where the writer knew that proceedings were still pending, the fact that he did not desire or intend to prejudice the case is immaterial (except as to the extent of his punishment) if the Court be satisfied that such was the obvious and necessary result of his words. Daw v. Eley (1869) 7 Eq. 49f 38 L.J. Ch. 113 : 17 W.R. 245, Martindale, In re (1894) 3 Ch. 193 at p. 200 : 64 L.J. Ch. 9 : 8 Rule 729 : 71 L,. T. 468 : 43 W.R. 53 and Townshend (Marquis), Tn re (1906) 22 T.L.R. 841. In the absence of the editor or writer, I can only and do infer tl;e intent from a consideration of the natural meaning of the words used and the impression which I believe they would convey to the ordinary reader of them.
62. In the present case the articles not only scandalise the Court but are otherwise a contempt, For it is a contempt to prejudice or attempt to prejudice a litigant and to interfere with the course of justice. Here the Trust is a litigant in this Court and it is suggested that it has been attempting to influence the course of justice by trying to 'get up' a Bench of its 'choice' of which allegation there is no proof whatever. Nextly, the writer of the article himself seeks to control the formation of the Benches in his own way by putting forward alleged unsavoury impressions in the public mind based on a number of wholly unfounded statements, adding that as soon as the Chief Justice understands the supposed public feeling in this matter, his Lordship would form a Bench of a nature which the writer approved. In my opinion, the articles do constitute a contempt of Court.
63. I now pass to the question as to which, if any, of the parties before us are responsible for it. Mr. Norton for the printer and publisher Tarit Kanti Biswas has conceded that if we hold that there is a contempt, then his client is liable though he pleads for mitigation of punishment--a matter with which I later deal. This liability is obvious, because scienter is attributable both to printer and editor. Neither can escape liability by alleging that he did not know that the contemptuous words had been inserted in his newspaper. Chesshire v. Strauss (1896) 12 T.L.R. 291, Rex v. Parke (1903) 2 K.B. 432 : 72 L.J.K.B. 839 : 89 L.T. 439 : 52 W.B. 215 : 67; P. 421 : 19 T.L.B. 627, Eex v. Davies (1906) 1 K. B 32: 75 L.T.K. B 10 1 : 93 L.T. 772 : 54 W.R. 107: 22 T, L.B. 97, Jones, Ex parts (1806) 13 Ves. (Jun.) 237 : 33 E.R. 283. As regards the others, the affidavit of Mr. Hechle the Registrar shows that the paper is, according to the imprint, printed and published at the Patrika Press, 19 and 20, Bagbazar Street, and issued by the Patrika Post Office, Calcutta. This Patrika Press works for the 'Amrita Bazar Patrika Company, Ltd.', which was incorporated with the object amongst others of carrying on the business of newspaper proprietors by printing and publishing newspapers and taking over the rights in the previously existing Amrita Bazir Patrika newspaper. The registered office of the company is No. 2 Ananda Chatter jee's Lane, Calcutta. A. certified copy of the annual summary shows that Moti Lal Ghose, Golap Lal Ghose and Pijus Kanti Ghose are directos and Golap Lal Ghose above mentioned and Mrinal Kanti Ghose are managers. It will be observed that all these persons are named Ghose and they all give the same address, which happens also to be that of the registered office of the company.
64. The total number of shares taken up is 766. Of these only 16 were issued for cash, probably for the expenses of incorporation, and 750 for a consideration other than cash. These shares of Rs. 100 each are held by 15 persons. The Ghose directors and managers hold 369 shares, three other persons of the name of Ghose hold 234 shares. There are four lady proprietors holding 112 shares and against the name of the first the father's name is given as Moti Lal Ghose. It is not clear from the summary whether the latter stands in the same relation to the other three ladies. There is one person of the name of Datta who holds 51 shares. The addresses of all these persons (the ladies and N.G. Datta included) is given as No. 2, Ananda Chatterjee's Lane, showing that this is a place of residence as well as being the registered office of the company. It is obvious on this evidence that these persons are related, that they live at the same address which is the registered office, and that the company is merely a small family business incorporated.
65. All the persons cited except Mrinal Ghose are directors. The latter is described as manager (with Golap Lal Ghose) and also as secretary. That Pijus Ghose and Mrinal Ghose are director and manager respectively, is also admitted in their affidavits. As regards Moti Lal Ghose and Golap Lal Ghose who have filed no affidavits, a number of technical, and in my opinion trivial, objections have been taken. The first objection taken by Mr. C.R. Das is that there is no proof that they are directors, notwithstanding that their oo director and secretary have sworn that they are, and they have themselves declined to give any information on any point to the Court. The argument is based on the contention that the certified copy of the summary filed on the 9th May 1917 of share capital and shares, etc., as they stood on the 5th Mrch 1917, purporting to be signed by Golap Lal Ghose as financial manager, was not admissible. Mrinal Ghose's affidavit states that Golap Ghose is a director and financial manager, but Mr. C.R. Das contended that this is not admissible against him nor (it must follow) against Moti Lal Ghose. It is not necessary to go into this last objection, for I think that the summary was a public record of a private document, of which a certified copy is admissible [Evidence Act, Sections 74, 75, 65 (e)]. It has been argued that record' in Section 74, Clause 2, refers only to the case where the public office itself makes a copy, that is, record of a private document, and keeps it. If it does, it is certainly a public record. But 'record' does not merely mean this. The word record also means a collection of documents. Section 74 (2) refers to private documents made by private persons and kept as a record in public offices to which the public have generally access. If this were not so, how could the public get such documents? The originals being in the custody of a public office the latter would not part with them, and not being a public document no certified copy could be given.
66. The next objection is that if the certified copy is admissible, there is no proof of the signature of Golap Ghose. Assuming that the mere production of a certified copy is not such proof where proof is necessary, it is not necessary here. Such certified copy is proof that some person giving the name of Golap Lal Ghose and describing himself as financial manager of the company signed such document, As that document was accepted by the Registrar of Joint Stock Companies, it is common sense to assume that he was satisfied that it was a return by the financial manager of the company. Thjs objection, therefore, in substance is that the Golap Lal Ghose who purports to sign this document is not or at any rate has not been shown to be the identical Golap Lal Ghose for whom Mr. C.R. Das has pleaded before us. It is admitted that the objection is technical. That is true, but we must see if the alleged technicalities are sound and we must give as much play to common sense as the law permits. The Rule was served on Moti Lal Ghose and Golap Lal Ghose as directors of the company. These are the persons whom we wished to see, not anybody else. The persons so served come here. If they were not the persons described in the summons they need not have come here. They can only be heard in these proceedings on the supposition that they are what the Rule states them to be. It is not open to any body and everybody to come and show cause against this Rule. Mr. C.R. Das's title to be heard at all is dependent on the assumption that he represents the person described in the Rule. The unreal nature of the objection is enhanced by the fact that the secretary of the company has sworn in these proceedings that Golap Ghose and Moti Lal Ghose are Directors. If it be, as contended, that we cannot refer to this affidavit when dealing with the case of Golap Ghose and Moti Lal Ghose (a matter I do not decide), this does not make the taking of such an objection any the more sensible. Objections should, even when legal, have some relation to reality.
67. The third legal objection is that assuming that the return is proof of the state of affairs on the 5th March 1917 and shows that these two persons were Directors on that date, it does not follow that they were Directors when the Rule was issued on the 30th May, 1917. It is to be observed, firstly, that apart from any presumption of continuance, the summary was filed on the 9th May, only three weeks before the issue of the Rale, which was not likely to be done had there been any change between the 5th March and that date. Further under seation fc7 of the Indian Companies Act VII of 1913 changes of directorship are required to be notified by the Company, and had there been any change, it would have appeared in the affidavit of Mr. Hechle, the Registrar, as the result of his recent enquiry in the matter. Nor it is likely that the Registrar of Joint Stock Companies would issue to an enquirer a certified copy of a return which had been changed. This objection is as unreal as the rest. I have no doubt whatever that Moti Lal Ghose and Golap Ghose are Directors apart from the affidavit of the Secretary of the Company who states that they are in fact such.
68. According to the Articles of Association produced with the affidavit of Mrinal Ghose, the business of the Company is to be managed by the Directors, that business being according to the Memorandum of Association the carrying on of the Amrita Bazar Patrika newspaper. But here again with further luxury of objection it is protested that we cannot look at the Articles of Association of the Company of which these two persons are Directors and which have been actually produced by the Secretary of the Company with his affidavit. It is sufficient to say that the affidavit of the Rule states who are Directors; the nature of the Company and, the facts proved indicate that its business must be carried on by them; and the provisions of this article are the same as and are indeed copied from Section 75 of Schednle I, Table A of Act VII of 1913, the provisions of which, unless otherwise arranged, apply to all Companies. The table of the earlier Act is on this point substantially the same. It has been, therefore, proved as against the parties named as Directors that they are such.
69. The question whether persons in the position of Directors are responsible must depend on the facts of eaoh case. In In re Judd (20.) the directors of Judd and Co. used to print and deliver a newspaper to another Company who published the same. They did not, it was held, sell or deliver, a fact which would relieve them from even civil liability. In Ex parte Green (1891) 7 T.L.R. 411 the manager of a Limited Company which disseminated paragraphs amounting to contempt of Court was held responsible. In that case the manager denied that he had seen the matter before it was published and that, in general, it was no part of his duty to supervise the reading out of news. The affidavit of the party taking proceedings spoke only to his 'information and belief' as to the responsibility of the manager. This was held to be, prima facie, sufficient and on the letters and affidavit, he was held guilty. In one case it was held that the individual liability had not been directly established and in another that it had been. Doubtless, in the case of an ordinary large newspaper Company' where the Directors meet together once a week to transact business in thet Board rooms, the ordinary inference might be (in the absence of direct evidence) that they were not conscious of the publication of a particular article, for in the case supposed they would have appointed an editor.
70. The facts in the present case are very different and peculiar. In Governor of Bengal v. Moti Lal 20 Ind. Cas. 81 : 41 C. 173 at p. 176 : 18 C.L.J. 452 : 14 Cr. L.J. 321 : 17 C.W.N. 1253 a statement resting on information and belief that Mcti Lall Ghose was editor was ruled out as not being legal evidence and the fact that Moti Lal Ghose did not in that proceeding deny the allegation was held immaterial. No disolosurs was made as to whether there was an editor or who he was. Ordinarily, of course, a newspaper has an editor, but we have no legal evidence of that in this case and the affidavits filed by one of the Directors and the Secretary, and the printer, do not even mention the existence of such a person. The Company, as I have said, appears to be a small family affair composed, in the main, of Ghoses, whose address is that of the registered office of the Company which is also given as that of some ladies, one of whom at least is the daughter of Moti Lal Ghose. Three of these Ghoses including Moti Lal Ghose are Directors and another Ghose is Secretary. The Articles of Association direct, not that the business shall be under their control, but that they shall manage the business. That business is shown to be the carrying on of the newspaper Amrita Bazar Patrika, which is now being published from No. 2, Ananda Chatterjee's Lane.' Some one must see to the literary part of this business. In the absence of evidence as to there being a separate editor, prima facie the Directors who are authorised to manage the business are the persons who do so in all its aspects. They must have authorised the circulation of the paper. Had there been reliable evidence that there was an editor who was some person other than the defendants even though his name was not disclosed, prima facie the responsibility for the articles would have lain with the editor, though of course the Directors or other persons would also have been liable who were shown to be privy to the publication. Here there is evidence that the management of this business is entrusted to the Directors. That business includes every department of it, financial, literary and so forth, for there is nothing to prevent one or other of the Directors being also editor. This is the inference which arises on the facts here proved. If the Directors have in fact delegated any of these functions to some other person, it is for them to show that fact. I am of opinion, therefore, that the affidavit in support of the motion disclosed a prima facie case against the Directors as such and calling for an answer from them. As regards the permanent Manager and Secretary, I deal later. Having regard to the facts proved I need not further consider their case here.
71. But assuming that the affidavit accompanying the Rules does make a case calling for an answer, the matter does not rest there. Pijus Kanti Ghose has put in an affidavit and has sworn that neither he nor his co-director exercise any control over the contents of the newspaper and exercise 'only such powers as are mentioned in the article.' Who does control the paper is not stated. A similar statement is made in the affidavit of Mrinal Kanti Ghose. Nextly, the affidavit of Pijus Kanti Ghose swears that he was away from Calcutta on the date of the second or chief article. Therefore he is shown not to have been directly privy to it. Simlarly, the affidavit of Mrinal Kanti Ghose states that he exercises no control over the contents of the newspaper, that his duties are to keep the minutes, registers and records of the Company, to issue notices and to make returns. Further, he swears that he was absent from Calcutta on both the dates when the articles appeared. He has, therefore, also met the case against him. There remains the cases of Golap Lal Ghose and Moti Lal Ghose, neither of whom have given any answer. The above-mentioned affidavits state that Golap Lal Ghose also has no control over the contents of the paper, and this statement is supported by the fact that the return the latter made to the Registrar of Joint Stock Companies shows that he is Financial Manager. Ordinarily, therefore, he would attend to this side of the business and probably to this only. There lastly remains amongst the directors the case of Moti Lal Ghose. He also has not filed an affidavit and we are told less about him than any one else. The affidavits offered to us seem to be of what is called a 'tricky' character. The wording is in the present tense. As was pointed out by my brother Fletcher, they might not support a prosecution. They do not deal with the condition of things when the articles were published. They do not state precisely what powers the Directors do exercise, or whether there is an editor. The statement that the Directors have no control over the conients does not show that they were not aware of the articles before they were published and circulated by their authority. Had there been no affidavits, I would have been disposed to adjudge that Moti Lal Ghose was in contempt; even after the reading of these affidavits, my mind has been in doubt, for the affidavits are deliberately drawn to keep all information from the Court and are, as above stated, otherwise unsatisfactory. Moti Lal Ghose has filed no affidavit. Though it has been objected by Counsel (Mr. C.R. Das) for one of the parties' that we cannot consider as against any particular party the affidavits offered in defence by other parties (a point I need not consider), still I am unwilling as against Moti Lal Ghose to rest the case on any such technicality. I cannot shut my eyes to the fact that there are three sworn statements before us that neither the Directors, Financial Manager, Secretary or Printer have control over the contents of the newspaper. As I said, I have had my doubts as to the sufficiency of this statement. Moti Lal Ghose (whose case I regard with strong suspicion) is, however, entitled to the benefit of them. As some one must have such control, we must now assume after the reading of these affidavits that there is an unnamed editor who is not before the Court. I conclude then that the affidavits offered in reply to the Court's Rule are such that it should be discharged against the parties to these proceedings other than the printer and publisher, Tarit Kanti Biswas. We might, without all this complex argument, have come to the same conclusion within half an hour if all the parties had sworn that they were not responsible and disclosed the name of the editor who, subject to any explanation he might make, was liable. As already stated, it is conceded by his Counsel, Mr. Norton, that the printer is liable provided that the articles constitute a contempt. He has, however, argued that the case is not of so serious a character as to call for the exercise of this jurisdiction, and if it is, he lastly pleads that the position of his client should excite our pity and that we should discharge him without penalty.
72. In my opinion, the case does call for the exernise of this jurisdiction by reason of the articles scandalizing the Court having a tendency to prejudice the parties and to interfere with the administration of justice. As regards the action to be taken and penalty to be awarded, each case must depend on its own facts.
73. As regards the second point, I cannot yield to the suggestion that merely because a man is a printer and publisher he should escape scot-free. Did we hold this, it would be open, as in this case, for the parties to exculpate themselves by affidavit and to suppress all information as to who was in fact responsible. The printer might also be put up to refuse such information and be told, 'it is all right, say you are only the printer and ask for pity and then we shall all be excused.' Our jurisdiction would thus become largely illusory. I do not say that there may not be cases where the Court will deal leniently with the printer, but this is not one. In the first place, he states in his affidavit that it was known to him that the matter dealt with by these articles was the subject of concern to the public who were watching with deep interest' the action of the Chief Justice in constituting the Court to hear the appeal from the decision of Greaves, J. He then saya that the articles were published to give expression to public feeling in Calcutta and that the 'articles were published by myself in good faith and in the public interest,' This statement is, on its face, in conflict with paragraph 3 of his affidavit, where he says that he did not read the articles before publication nor did he consider at any time prior to their publication their meaning or purport. If this be true, how could they have been published by him in good faith and in the public interest? According to his ow.n statement, he was aware that the subject was creating public interest, and he is prepared to swear that the articles were published to give expression to public feeling. If there were, in fact, such an interest, there was the greater necessity for caution on his part in seeing what he published with reference to it. His statement that in fact he did not see the articles before publication is weakened by the attempted justification that they were published 'by myself in good faith and in the public interest,' though it is of course possible that this inconsistency was due to bad drafting.
74. As, however, the affidavits are in general astutely drawn, we cannot well assume this. He denies that the articles are a contempt and seeks to justify himself. In this he fails. Nextly, he says that he has no control over the contents of the newspaper and that they were handed to him for publication in the usual course of his business. He carefully refrains from saying who gave him the articles, whether it was the editor who did so, or who he was. His Counsel justifies this refusal on the ground of loyalty to his employers. If he esteems that loyalty above his public duty to inform the Court who committed this alleged offence, he cannot complain that we do not show him indulgence. He joins with the others in refusing information and if, apart from such refusal, he is liable, he must take the consequence. The Courts in England have held [as for example in American Exchange in Europe v. Gillig (1889) 58 L.J. Ch. 706 at p. 707 : 61 L, T. 502] that this refusal by the printer to give up the name of the editor is a matter which will weigh with it in determining whether a penalty shall be awarded against the printer or not. Mr. Norton has complained (I) thought with that moderation which rarely goes with real zeal) that his client should be left to suffer because his employers have sot produced their editor. In the English-man Contempt case [Re Banks and Fenwick 45 Ind. Cas. 113 : 26 C.L.J. 401 : 19 C.L.J. 449.] Captain Fenwick, the editor of that paper, came forward to bear the brunt of what was in reality done by him or his order, on which the Rule was withdrawn against the printer. Sir Barnes Peacock observed that in doing that Captain Fenwick had only done that which every honourable gentleman who fills the editor's chair would do, in not allowing a publisher of a paper to take the consequence of articles written and published by his order by not coming forward to avow the authorship.' This was also done by Babu Surendra Nath Banerjee in the well-known Beng.ilee Contempt case [Surendra Nath Banerjee v. Chief Justice of Bengal 10 C. 109 : 10 I. A, 171 : 4 Sar. P.C.J. 474 : 5 Ind. Dec. (N.S.) 76], where Garth, C.J., said that Babu Surendra Nath Banerjee had properly done his best to protect his printer. There is no disposition, however, upon the part of any one in this case to adopt this proper and honourable course. But the printer himself does not deny that he is ignorant who the editor is and he himself through his Counsel declines to give his name, There are some cases in which, one might sympathise with the printer, but here he has not only declined to give up the editor's name, but has otherwise associated himself with the other parties in the case and has sought to justify both himself and them in what I hold to be a contempt, and he must, therefore, take the consequences such as they are. In, however, adjudging the penalty I have not wholly left out of count the fact that he is the printer, for, had the editor been found guilty of contempt, he would, in my opinion, have been subject to much heavier punishment.
75. The defence to these proceedings except as to the construction of the articles--a legitimate argument--was ill advised and a waste of time. If the Directors, Managers and Secretary were not personally responsible for the contempt, they had only to frankly state the facts on affidavit and disclose who was so liable. The printer similarly, who in law is liable, might have stated the persons from whom he got the articles he printed and thus have personally freed himself from all further action against him. We should then on the supposed facts have only had to deal with the person primarily liable, namely, the editor. He could, then, if be had wished, have personally put forward the plea here advanced that the articles have been misunderstood and that on the contrary he was moved by a desire to act in the interest of the Court and to protect it from mischievous' and unsavoury' rumours. If this were the fact, he would have nothing to fear from Judges who, according to the argument before us, had the complete confidence of the writer of these articles. Even if these articles were ill expressed and capable of a bad interpretation, their effect might have been negatived by the public avowal of their author that for him they had no such meaning. These proceedings might have thus been disposed of within an hour or less, with the result that either all parties might have been freed of penalty or if penalty were awarded it would have fallen on the party primarily liable namely, the editor. On the contrary, all the parties before us have adopted a hostile attitude to the Court, have refused all information, concealed the name of the editor and put forwad every technical objection to defeat an enquiry which has thus been prolonged over three days with unnecessary delay and expense to the public and the parties concerned. For this the parties, by the course they have adopted, are responsible. T.his course further has strengthened the inference which is to be drawn from the natural language of the articles in the absence of explanation from their writer. It is not in such absence to be supposed that the intentions of the writer and editor of these articles were as innocent as the argument before us suggests and that the name of one who was, it is said, only seeking to protect this Court from unsavoury rumours and to give it what he thought good advice, should be kept concealed. It is absurd also to suppose that the party responsible would himself, if innocent, carefully avoid his presence in the Court, which it is said he honoured and was seeking (howevr ill-considered his language might be) to counsel and protect.
76. I, therefore, concur in the order which the Chief Justice has made.
77. Mookerjee, J.--On the 18th May 1917 the following paragraph appeared in the editorial columns of the Amrita Bazar Patrika:
There is a mischievous rumour afloat which should be contradicted. It is stated that a vigorous attempt is being made to get up a Bench to consider the appeal on the judgment of Mr. Justice Greaves in connection with the acquisition of surplus land by the Calcutta Improvement Trust according to somebody's choice. We do not believe that it is possible for any one, far less the Chairman of the Trust, to secure a Bench after his own heart, as a counterpoise to the Mookerjee and Cuming Bench. We are sure the interest of every rate-prayer is safe in the hands of the Hon'ble Judges and we do not think that any official of the Trust can go so far.
78. Four days later, on the 22nd May, the following paragraph appeared in the editorial columns of the same paper:
Something like consternation prevails on account of the proposed new constitution of the Appellate Bench of the Calcutta High Court, before which appeals against the awards of the Improvement Trust are to be heard. It is known to the reader Jiow this Banoh was originally composed of Sir Asntosh Mookerjee and the Hon'ble Mr. Justice Cnming, and how latterly it has come to be presided over by the Hon'ble the Chief Justice and Mr. Justice Woodroffe. Rumour has it that for purposes of hearing Improvement Trust Appeals, the Bench is going to be strengthened by the appointment of Mr. Justice Chitty. Now, what neither the public nor ourselves can understand is this special arrangement for such a Special Bench. If it is contended that two Hon'ble [Judges of the highest Court in the land are not competent to decide in appeal cases in whish the Improvement Trust is concerned--a contention, however, which we do not believe the Chief Justice will care to ladvance--why should there be a Special Bench of three and not a Full Bench of five, on which at least two Indian Judges could find aeats? As a matter of fact as land-owners in Calcutta are mostly Indians, and as Indian Judges are likely to know more of conditions, practices, etc., prevailing here, it is but meet that the Appellate Bench in the present circumstances should be so composed is to associate Indian Judges with their European colleagues. The withdrawal of Sir Asntosh has given rise to rather unsavoury impressions in the public mind, since this proposed arrangement is to follow close upon the heels of his judgment in the case of The Improvement Trust v. Chandra Kanta Ghosh 35 Ind. Cas. 749 : 24 C.L.J. 246 : 44 C. 219 : 2 C.W.N. 8.. Be that as it may, we have perfect faith in the present Chief Justice and believe that as soon as Sir Lancelot Sanderson understands the public feeling in the matter, His Lordship will either form a Full Bench or at least associate an experienced Indian Judge with himself for the hearing of Improvement Trust Appeals.
79. On the 30th May 1917 the Chief Justice, after previous consultation with the other members of the Court, directed the issue of a Rule on Tarit Kanti Biswas (the printer and publisher of the Amrita Bazar Patrika), Moti Lal Ghose, Golap Lal Ghose and Pijush Kanti Ghose, Directors, and Golap Lal Ghose and Mrinal Kanti Ghose, Managers, of the Company called the Amrita Bazar Patrika, Ltd., to show cause why they should not be committed 01 otherwise dealt with according to law for contempt of Court committed by the publication of the two articles mentioned concerning the High Court and the Chief Justice in his administration thereof. The materials whereon the Rule was issued were contained in two affidavits sworn by the Registrar on the Original Side and the Registrar on the Appellate Side as to the actual publication of the articles in the paper and the position the opposite parties occupied in relation to the paper and the Company, which were its proprietors. The opposite parties have appeared in Court in person and have been represented by Counsel; three of them, Tarit Kanti Biswas, Pijus Kanti Ghose and Mriual Kanti Ghose, havefiled affidavits which will require examination hereafter. On the elaborate arguments addressed to the Court, the following points emerge for consideration, namely, first, what is the true meaning of the two articles mentioned; do they constitute contempt of Court; secondly, if the articles constitute contempt of Court, has this Court jurisdiction to punish the offenders summarily and should such authority, if any, be exercised in the present instance; thirdly, what is the true nature of the present proceedings; is it civil or criminal in character, and fourthly, have the opposite parties or any of them been proved to be so connected with the publication of the articles as to render them liable to punishment for contempt of Court.
80. As regards the first question, namely, the true meaning of the two articles set out above, there can, in my opinion, be little room for doubt, notwithstanding the able and ingenious arguments, which have been addressed to us. The obvious course to pursue in a case of this description is to read the offending articles as they stand and to attach to the words used their natural meaning without the assistance of a laborious commentary. The general rule of interpretation cannot be formulated in more precise terms, because objectionable language may take an infinite variety of forms; this much is clear that it is incumbent on the Court, in all cases, to consider the general tone of the writing. The meaning and intent are to be determined by a fair interpretation of the language used and are matters of law for the Court as to whether or not they constitute contempt. Disclaimer on the part of the publisher as to any intentional disrespect to the Court is consequently not a sufficient defence, when the purpose and meaning of the writing is obviously of a contrary import. No doubt, if the language is fairly capable of an innocent interpretation, the Court will not be astute to read into it a sinister import. [Governor of Bengal v. Moti Lal 20 Ind. Cas. 81 : 41 C. 173 at p. 176 : 18 C.L.J. 452 : 14 Cr. L.J. 321 : 17 C.W.N. 1253, Townshend (Marquis), In re (1906) 22 T.L.R. 841, Martindale, In re (1894) 3 Ch. 193 at p. 200 : 64 L.J. Ch. 9 : 8 Rule 729 : 71 L,. T. 468 : 43 W.R. 53 and Daw v. Ffley (1869) 7 Eq. 49f 38 L.J. Ch. 113 : 17 W.R. 245 J. But, if the intent is fairly clear, liability to punishment for contempt of Court cannot be successfully evaded by the use of a transparent artifice. Tested from this point of view, how do these articles stand F The first article makes reference to an alleged rumour which the writer describes as mischievous and worthy of contradiction. The rumour is stated to have been to the effect that a vigorous attempt was being made to get a Bench constituted according to the choice of somebody to hear, the appeal from the judgment of Mr. Justice Greaves in a suitin connection with the acquisition of surplus land by the Calcutta Improvement Trust. The writer expresses his belief that no official of the Trust, far less the Chairman, could go far as to make an attempt of this character, and that it was not possible for anybody to secure a Bench after his own heart as a counterpoise to what is called the Mookerjee and Cuming Bench. The writer concludes with an assurance that the interest of every citizen is safe in the hands of the Judges. If this article had stood by itself, it might perhaps have been argued with seeming plausibility that, however much open to reproach on the ground of indiscretion and impropriety, the writer had no intention to commit a contempt of Court. But the second article, which is written in a very different tone, shows convincingly the true intent and purpose, of the first article. The question, however, was raised before us, whether the two articles should be read together. It was contended that they should not be so read, as there was nothing to indicate that they had emanated from the same individual. In my opinion, the two articles may legitimately be read together to determine their scope and purpose, 'even though they were proved not to have been written by the same person. They obviously relate to the same topic and were published in the editorial columns of the same newspaper, there was a very brief interval of time between them and the first obviously led up to the second, though not expressly mentioned, therein. The first article has, I think, a sinister import, and conveys the insinuation that one of the litigant parties in the appeals about to be heard was endeavouring to have a Bench constituted according to its choice. There is no room for controversy that imputation of this character constitutes a contempt of Court. Contempt by speech or writing may he by scandalising the Court itself or by abusing parties to actions or by prejudicing mankind in favour of or against a party before the cause is heard; as has been said, there is nothing of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes before they are finally heard and thus to attempt to obstruct or interfere with the due course of justice. [St. James Evening Post case (1742) 2 Atk, 469 : 26 E.R. 683, Cann v. Cann (1754) 2 Vcs. (Sen.) 520 : 2 Dick, 795 : 28 E.R. 332., American Exchange in Europe v. Gillig (1889) 58 L.J. Ch. 706 at p. 707 : 61 L, T. 502, R. v. Gray (1900) 2 Q.B. 36 at p. 40 : 69 L.J.Q.B. 502; L.T. 534 : 48 W.R. 474 : 64 J.P. 484 : 16 T.L.R. 305., Rex v. Davies (1906) 1 K. B 32: 75 L.T.K. B 10 1 : 93 L.T. 772 : 54 W.R. 107: 22 T, L.B. 97 and McLeod v. St. Aubyn (1899) A.C. 549 : 68 L.J.P.C. 137 : 81 L.T. 158 : 48 W.R. 173 : 15 T.L.R. 487]. But, from my point of view, it is really immaterial whether the two articles are considered separately or are regarded as component parts of one aggregate, for even if there were any real doubt as to the purpose of the first, there can be no serious dispute as to the meaning of the second.
81. The second article, when carefully analysed, may he resolved into the following propositions:
82. (1). That the Appellate Bench of the Calcutta High Court before which appeals against the awards of the Improvement Trust are to be heard was originally composed of myself and Mr. Justice Cuming.
83. (2). That I had been withdrawn from this Bench, and that the withdrawal had given rise to rather unsavoury impressions in the public mind, as it followed close upon the heels of the judgment in the case of Trustees for the Improvement of Calcutta v. Chandra, Kanta Ghosh 35 Ind. Cas. 749 : 24 C.L.J. 246 : 44 C. 219 : 2 C.W.N. 8., to which I was a party.
84. (3). That this Appellate Bench had latterly come to be presided over by the Chief Justice and Mr. Justice Woodroffe.
85. (4). That there was a rumour that the Appellate Bench so constituted was about to he strengthened by the appointment of Mr. Justice Chitty and this proposed new constitution of the Appellate Bench had created something like consternation.
86. (5). That if the Bench was to be composed of more than two Judges, it should consist of not three but five Judges, of whom two at least should be Indian Judges, because land-owners in Calcutta (who were principally affected by the operations of the Calcutta Improvement Trust) were Indians, and Indian Judges were likely to know more of conditions and practices prevailing here than European Judges.
87. These statements constitute a tissue of falsehoods, and, to my mind, one of the most conspicuous features of this trial is that not only has not even the semblance of an attempt been made to establish the truth of these allegations, it has actually been conceded that they are vitiated by a fundamental error. No Bench composed of myself and Mr. Justice Cnming had, at any time, been constituted to hear appeals against what are inaccurately termed the awards of the Improvement Trust. The plain truth is that last year, when Mr. Justice Cuming and myself were in charge of the Bench which had to take cases of what is called the First group of the Districts, the appeal of the Calcutta Improvement Trust against Chandra Kanta Ghosh came up before us, inasmuch as the appeal had been preferred from the decision of a Subordinate Judge of the 24-Pergannahs. The appeal belonged to our group, was heard by us in due course, and was dismissed. We had at no time been constituted a Special Bench to hear appeals in all cases in which the Improvement Trust was concerned, and there is no foundation whatever for the first proposition that the Appellate Bench, before which appeals against the awards of the Improvement Trust were to be heard, was originally composed of myself and Mr. Justice Cnming. Consequently, the suggestion contained in the second proposition that I had been withdrawn from the Appellate Bench, which in fact bad never been constituted, is equally groundless. Here I may observe that as under Section 108, Sub-section 2 of the Government of India Act, 1915, the duty devolves upon the Chief Justice to determine, from time to time, what Judges of the Court are to constitute the several Division Courts, the second proposition necessarily involves an imputation against the Chief Justice that he had withdrawn me from the Appellate Bench he had previously constituted, composed of myself and Mr. Justice Cuming, to hear appeals in cases in which the Calcutta Improvement Trust was concerned, There is clearly the further imputation that the Chief Justice had taken this aotion by reason of my judgment in the appeal preferred by the Improvement Trast against Chandra Kanta Ghosh. As the Appellate Bench had never in fact been constituted in the manner stated by the writer, the charge that I had heen withdrawn therefrom for the reason assigned was evidently baseless. The third proposition, namely, that the Appellate Bench had been constituted of the Chief Justice himself and Mr. Justice Woodroffe, in supersession of the previously constituted Bench, composed of myself and Mr. Justice Cuming, was consequently equally unfounded; as a matter of fact, long before the constitution of the Bench to hear the appeals from the Original Side, Mr. Justice Cuming had ceased to be a member of this Court. The fourth proposition refers to the rumour that the Appellate Bench presided over by the Chief Justice and Mr. Justice Woodroffe was about to be strengthened by the appointment of Mr. Justice Chitty, and that something like constrenation prevailed on account of the proposed new constitution of the Bench. As I read the article, the consternation was due, not so much to the fact that the Chief Justice and Mr. Justice Woodroffe composed the Bench, as to the fact that the Bench was about to be strengthened by the ap-pointement of Mr. Justice Chitty. This implies most unmistakably that a just decision, that is, a decision just in the estimate of this impartial writer, could not be expected from a Bench so constituted. If language has any meaning, this was clearly a libel on Mr. Justice Chitty, if not also upon the other two members of the Bench. The fifth proposition involves a libel upon Indian Judges but in the opposite direction. No doubt, it is very artfully suggested that Indian Judges should be on the Bench to hear this class of cases, because they are likely to know more of conditions and practices prevailing here than European Judges. But, as was well known, the matter in controversy in the appeals had not the remotest connection with a knowledge of local conditions and practices. The point in issue was a dry question of law as to the true interpretation of a legislative enactment. The writer, however, unmistakably insinuates that land-owners in Calcutta (who are principally affected by the operations of the Trust) are mostly Indians, and Indian Judges on the Bench might be expected to give a decision in their favour. I do not appreciate the distinction between an insinuation that a European Judge is likely to decide in favour of the executive, because he is a European, and an insinuation that an Indian Judge is likely to decide in favour of Indian land-owners, because he ia an Indian. To my mind, the two statements are equally reprehensible as libels on the Judges of this Court. I cannot, in this connection, pass by in silence the observations of Mr. Jackson as to the constitution of the Bench which actually heard the appeals from the judgment of Mr. Justice Greaves. The Courtis called upon, in the present Rule, to consider the true character of the allegations contained in the two articles published in the Amrita Bazar Patrika, and to determine whether they do or do not constitute a contempt of Court. We have no concern whatever with the question, whether the Chief Justice, who alone is charged with the duty to constitute Division Courts, has in this particular instance exercised wisely or otherwise the discretion vested in him by law. The remarks of Mr. Jackson on this subject were absolutely irrelevant for the determination of the question before the Court, and exhibited, I feel constrained with regret to hold, an unusual and unwarranted lapse from that decorum which we are accustomed to associate with the transaction of public business in a Court of Justice.' I cannot but deem it significant that the other Counsel engaged in the case expressly dissociated themselves with special care from the comments made by Mr. Jackson in this 'behalf. Here I may observe that in the judgment just delivered by the Chief Justice he has taken pains to explain the reasons which moved him to constitute the Bench as he did; Mr. Justice Woodroffe also has touched on the subject and expressed his opinion thereon. But, for obvious reasons, which need not be dilated upon, I must respectfully decline to examine the question. Besides, the exercise of discretion by the Chief Justice in the matter of constitution of a Division Court to hear the appeals against the judgment of Mr. Justice Greaves, is, under the law, not liable to be reviewed by this Bench and is not subject to our approbation or disapprobation. I desire, consequently, to guard myself most carefully from the discussion of a question, which, notwithstanding what fell from Mr. Jackson, does not, in my judgment, properly arise even as a side-issue in these proceedings; such a discussion is not likely to advance any useful purpose, because it cannot be of real assistance in the solution of the very narrow issue comprised in the scope of our enquiry, namely, the real import of the two articles published in the Amrita, Bazar Patrika and whether, on a fair interpretation, they did or did not constitute a contempt of this Court; upon that matter, which alone it is our function to decide, I feel no reasonable doubt. I desire, however, to repudiate most emphatically the astonishing assertion made by Mr. Jackson that landless Judges, as he called them, were, merely because they were landless, less competent and less trustworthy as interpreters of a statutory enactment than Judges of any other class, and that Indian Judges, because they might possibly be proprietors of land, were for this purpose more capable and reliable as expounders of the law than their European colleagues. But to return to the two articles: it seems to me indisputably plain that the implication of the second article, whether taken along with or independently of the first, is that, at the instance of persons interested in the Calcutta Improvement Trust, the Chief Justice has constituted a Special Bench to ensure a decision favourable to the Trust in the appeals against the judgment of Mr. Justice Greaves. This brings me to the question which is the cruse of the whole matter, namely, whether an imv putation of this character constitutes a contempt of Court.
88. It is not necessary for our present purpose to give an exhaustive enumeration of acts which amount to contempts of Court. It is sufficient to state that scandalous attacks upon Judges, calculated to cause an obstruction to public justice, do constitute such contempts. Blaokstone, in a celebrated passage of his Commentaries (Volume IV, page 285) which will be found quoted in Governor of Bengal v. Moti Lal 20 Ind. Cas. 81 : 41 C. 173 at p. 176 : 18 C.L.J. 452 : 14 Cr. L.J. 321 : 17 C.W.N. 1253, specifies, in his description of contempts of Court, contempts which arise 'by speaking or writing contemptuously of the Court or Judges, acting in their judicial sapacity and which demonstrate a gross want of that regard and respect, which, when onoe Courts of Justice are deprived of, their authority, so necessary for the good order of the kingdom, is entirely lost amongst the people.' Sir John Wilmot, C.J., in Rex v. Almon (1765) Wilm. 243 at p. 255 : 97 E.R. 94 justifies a similar view in a passage which may be usefully recalled here:
By our constitution, the King is the fountain of every species of justice, which is administered in this kingdom. The King is deiure to distribute justice to all his subjects; and, because he cannot do it himself to all persons, he delegates his power to his Judges, who have the custody and guard of the King's oath, and sit in the seat of the King 'concerning his justice.' The arraignment of the justice of the Judges, is arraigning the King's justice; it is an impeachment of his wisdom and goodness in the choice of his Judges, and excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minda to obey them; and whenever men's allegiance to the laws is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the Judges, as private individuals, but because they are the channels by which the King's justice is conveyed to the people. To be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open, and uninterrupted current, which it has, for many ages found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth.
89. It is needless to multiply early instances of the application of this doctrine, which will be found collected in 3 Howell State Trials, 1074-1080. and 8 Howell State Trials, EO. Amongst modern instances reference may be made to the observations In the matter of a. Special Reference from the Bahama Islands (1893) A.C. 138, Reg. v. Staffordshire County Court Judge (1888) 57 L.J.Q.B. 483 : 36 W.R. 796, Reg. v. Oray (1900) 2 Q.B. 36 at p. 40 : 69 L.J.Q.B. 502; L.T. 534 : 48 W.R. 474 : 64 J.P. 484 : 16 T.L.R. 305., Hex v. Davies (1906) 1 K. B 32: 75 L.T.K. B 10 1 : 93 L.T. 772 : 54 W.R. 107: 22 T, L.B. 97, Sureiidra Nath Banerjee, v. Chief Juctice of Bengal 10 C. 109 : 10 I. A, 171 : 4 Sar. P.C.J. 474 : 5 Ind. Dec. (N.S.) 76, Sashi Bhushan Sarbadhicary, In the matter of 34 I.A. 41 : 29 A. 95 : 4 A.L. J 34 : 9 Bom. L.E. 9 : 17 M.L.J. 74 : 11 C.W.N. 273, 5 C.L.J. 130 : 2 M.L.T. 5 Cr. L.J. 152 (P.C.), Tayler's case 41 Ind. Cas. 930 : 26 C.L.J. 345 : 19 Cr. L.J. 402, and Banks and Fenwick, In the matter of 45 Ind. Cas. 113 : 26 C.L.J. 401 : 19 C.L.J. 449. The principle deduoible from these cases is that punishment is inflicted for attacks of this character upon Judges, not with a view to protect either the Court as a whole or the individual Judges of the Court from a repetition of the attack, but with a view to protect the public, and specially those who, either voluntarily or by compulsion, are subject to the jurisdiction of the Court, from the mischief they will incur, if the authority of the Tribunal be undermined or impaired. The contention has been advanced, however, that if this be the true reason fur the rule, it is necessary to establish, as a matter of fact, that the actual effect of the publication has been an obstruction to public justice, and, that, in the absence of such proof, it cannot be held that there has been a contempt of Court. In support of this position, reliance has been placed upon the decisions in R. v. Freeman's Journal (1902) 2 I.R. 82 : 6 Ir.L.R. 628 and King v. Dolan (1907) 2 I.R. 260 : 9 Ir. L.R. 647. The cases mentioned do not support this proposition, which is, on the other hand, negatived by the decisions in Reg. v. Gray (1900) 2 Q.B. 36 at p. 40 : 69 L.J.Q.B. 502; L.T. 534 : 48 W.R. 474 : 64 J.P. 484 : 16 T.L.R. 305., Hunt v. Clarke (1889) 58 L.J.Q.B. 490 : 61 L.T. 343 : 37 W.R. 724, In re Pall Matt Gazette Jones Mower (1894) 11 T.L.R. 122. (49 (1897) 13 T.L.R. 305, Grimwade v. Cheque Bank Ltd. (1897) 13 T.L.R. 305, these show that a contempt of Court is committed by libellous attacks on a Judge for what he did judicially, if such attacks are likely, or tend in any way, to interfere with the due administration of justice. As Elliott, J., well puts it in People v. Stapltton (1893) 18 Colorade 568 : 23 L.R. A, 787 : 33 Pacific 167, it would be as reasonable to require proof of actual hinderanoe in the administration of justice by reason of a libellous attack on a Judge in his judicial capacity as for a person who has made a violent assault on another to plead that he has committed no offence because he has not succeeded to overcome his victim. It is not only important that the trial of causes shall be impartial and that the decisions of the Courts shall be just; it is equally important that causes shall be tried and judgments rendered without bias, prejudice or improper influence of any kind. He who scandalises the Court or a Judge in relation to a particular litigation, commits an offence, not merely against the rights of those litigants, but also against public justice: In the matter of a Special 'Reference of the Bahama Islands (1893) A.C. 138. It is a public wrong, a crime against the State, to undertake, by libel or slander on the Judges, to impair confidence in the administration of justice. That a party indulges in calumny of the gravest character, and, consequently, does not succeed in his endeavour to shake the confidence of the public in the Court, surely does not alter the quality of his act or make it any the less reprehensible. From this standpoint, it is immaterial whether the attack on the Judge is with reference to a cause about to be tried; or actually under trial, or recently adjudged; in each instance, the tendency is to poison the fountain of justice, to create distrust, and to destroy the confidence of the people in the Courts, which are of prime importance to them in the protection of their rights and liberties: Beg v. (Gray (1900) 2 Q.B. 36 at p. 40 : 69 L.J.Q.B. 502; L.T. 534 : 48 W.R. 474 : 64 J.P. 484 : 16 T.L.R. 305. Upon my construction of the second article, read with or without reference to the first, I hold that it undoubtedly constitutes a contempt of Court.
90. As regards the second question, there is no room for controversy that this Court has power to punish summarily a contempt of Court committed by the publication of a libel on the Court or on the Judges, when the Court is not sitting. By Clause 1 of the Letters Patent of 1862 and Clause 2 of the Letters Patent of 1865, the Court was constituted as a Court of Record; and, as a superior Court of Record, it has summary jurisdiction to punish for contempt of Court, This was affirmed in respect of the Superior Courts at Westminster by Wilmot, C.J., in Rex v. Almon (1765) Wilm. 243 at p. 255 : 97 E.R. 94 and his opinion has been quoted with approval in a long line of decisions, the most notable whereof is, perhaps, the judgment of Cookburn, C.J., in Reg. v. Lefroy (1873) 8 Q.B. 134 : 42 L.J.Q.B. 121 : 28 L.T. 182 : 21 W.R. 332 Mr. Jackson contended that this view will not stand scrutiny and may properly be described as law taken for granted.' In this connection, he invited our attention to a celebrated passage from the judgment of Lord Denman, L, C.J., in Reg. v. O'Connell (1844) 5 St. Tr. (N.S.) 1 (Column 877); 11 C1. & Fin. 155 at p. 372 : 9 Jur. 25 : 1 Cox. C.C. 413 : 7 Ir. L.R. 261 : 8 E.R. 1061 at p. 1143 : 65 R.R. 59: 'A large portion of that legal opinion, which has passed current for law, falls within the description of 'law taken for granted; if a statistical table of legal propositions should be drawn out, and the first column headed 'law by Statute,' and the second, 'law by decision,' a third column, under the heading of 'law taken for granted' would comprise as much matter as both the others combined. But when, in pursuit of truth, we are obliged to investigate the grounds of the law, it is plain, and has often been proved by recent experience, that the mere statement and re-statement of a doctrine,--the mere repetition of the cantilena of lawyers, cannot make it law unless it can be traced to some competent authority, and if it be irreconcilable to some clear legal principle.' But the question remains, whether the proposition that a Superior Court of Record has power to punish summarily for contempt of Court, can appropriately be treated as 'law taken for granted.' I am not unmindful that a learned writer (Mr. John Charles Fox in the Law Quarterly Review, Volume XXIV, pages 184, 266) has maintained the view that the opinion expressed by Wilmot, C.J., in Reg. v. Almon (1765) Wilm. 243 at p. 255 : 97 E.R. 94 is not historically accurate. Let us assume that this criticism is well established on the ancient authorities and that while originally the superior Courts of Common Law had jurisdiction to punish only disobedience to the King's writ summarily by fine and imprisonment upon attachment, they had jurisdiction only on indictment or bill to punish contempts in facte and other obstructions to the administration of justice, such as libelling the Court or the Judge. Let us assume also that the development of the summary jurisdiction to punish contempts has been of slow growth and that the earliest recorded case of libel or slander on the Court or a Judge by a stranger unconnected with the service of process, which was punished summarily by attachment, cannot be traced to a period anterior to 1720. Surely, this cannot but be regarded now as a matter of other than antiquarian interest. We have abundant 'competent authority' 'not irreconcilable to clear legal principles,' in support of the view that a Superior Court of Record does possess the power to punish summarily contempts of Court of the description now before us. Sir Barnes Peacock, C.J., maintained and applied this principle in Abdool and Mahtab, In re 8 W.R. Cr. 32 and Be William, Tayler 41 Ind. Cas. 930 : 26 C.L.J. 345 : 19 Cr. L.J. 402, which, upon a full review of the authorities, was re-affirmed in Governor of Bengal v. Moti Lal 20 Ind. Cas. 81 : 41 C. 173 at p. 176 : 18 C.L.J. 452 : 14 Cr. L.J. 321 : 17 C.W.N. 1253. Wehave also the prouncement of the Judicial Committee to the same effect in Me Dermott v. Judges of British Guiana (1868) 2 P.C. 341 : 5 Moo. P.C. (N.S.) 466 : 38 L.J.P.C. 1 : 20 L.T. 74 : 17 W.R. 352 : 16 E.R. 590, where they confirmed the view indicated in the earlier cases of Smith v. Sierre Leone (Justices of) (1841) 3 Moore 361 : 13 E.R. 147 and Rainy v. Sierra Leone (Justices of) (1853) 8 Moore P.C. 47 : 14 E.R. 19 : 97 R.R. 26. As regards the power of Indian High Courts in a case of this character, we have two decisions by the Judicial Committee, namely, Surendra Nath Banerjfe v. Chief Justice of Bengal 10 C. 109 : 10 I. A, 171 : 4 Sar. P.C.J. 474 : 5 Ind. Dec. (N.S.) 76 and Sashi Bhushan Bar-badhicury, In the matter of 34 I.A. 41 : 29 A. 95 : 4 A.L. J 34 : 9 Bom. L.E. 9 : 17 M.L.J. 74 : 11 C.W.N. 273, 5 C.L.J. 130 : 2 M.L.T. 5 Cr. L.J. 152 (P.C.). In the former case it was ruled that the High Court had power to punish in a summary manner, by fine cr imprisonment or both, a contempt of Court, which in that case, as in the present, consisted in the publication out of Court of a libel on one or more of the Judges. In the latter case, the Judicial Committee held that there was no doubt that the publication of the libel in question constituted a contempt of Court, which might have been dealt with by the High Court in a summary manner, by fine or imprisonment or both. In my opinion, these repeated pronouncements by the Judicial Committee conclude the matter, so far as 'competent authority' is concerned, and no useful purpose can be served by an examination of the historical basis of the opinion expressed by Wilmot, C.J. That the possession of this power by a Judicial Tribunal (however cautiously and sparingly it may have to be exercised) is not also irreconcilable to cleatr legal principle' is beyond serious controversy; indeed, the summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice, is essential to the preservation of order in judicial proceedings, to the maintenance of the authority of a Court and to the enforcement of its judgments; it is a necessary incident and attribute of a superior Court, without which it could no more exist than without a Judge, [See the cases reviewed in Governor of Bengal v. Mati Lal 20 Ind. Cas. 81 : 41 C. 173 at p. 176 : 18 C.L.J. 452 : 14 Cr. L.J. 321 : 17 C.W.N. 1253.] It was argued, however, on the authority of the decision of the Judicial Committee in Me Lead v. St. Aubyn (1899) A.C. 549 : 68 L.J.P.C. 137 : 81 L.T. 158 : 48 W.R. 173 : 15 T.L.R. 487 that committals for contempt of Court by woandalisiug the Court itself had become obsolete in England. It may be observed here parenthetically that this very decision of the Judicial Committee is an authority for the proposition that, as laid down by Lord Hardwieke in St. James Evening Post case (1742) 2 Atk, 469 : 26 E.R. 683, the publication of scandalous matter in respect of the Court itself is a contempt and that power summarily to commit for contempt of Court is considered necessary for the proper administration of justice. I do not read the statement, that committals for contempt of Court by scandalising the Court itself had become obsolete in England, as destructive of the authority of the earlier decisions on the subjeot. Indeed, the proposition taken literally seems to go too far and it is significant that, in the very next year, proceedings were taken in England for contempt of Court in the case of Reg. v. Gray (1900) 2 Q.B. 36 at p. 40 : 69 L.J.Q.B. 502; L.T. 534 : 48 W.R. 474 : 64 J.P. 484 : 16 T.L.R. 305. There can, I think, be no doubt that where the circumstances clearly demand action of this description, the Court will not hesitate to exercise its undoubted power to punish on summary process the contempt of scandalising it and thereby attempting to interfere with the due course of justice. No doubt, as Lord Morris observes in McLeod v. St. Aubyn (1899) A.C. 549 : 68 L.J.P.C. 137 : 81 L.T. 158 : 48 W.R. 173 : 15 T.L.R. 487, Courts may be satisfied sometimes to leave to public opinion attacks or comments derogatory or scandalous to them, But I do not accede to the argument that it is invariably prudent for the Court to assume an attitude of indifference or to institute regular criminal proceedings against the offender. In this connection, reference may appropriately be made to the weighty words of Kent, C.J., in Yates v. Lansing (1810) 5 Johnson 282 Whenever we subject the established Courts of the land to the degradation of private prosecution, we subdue their importance and destroy their authority. Instead of being venerable before the public, they become contemptible; and we thereby embolden the licentious to trample upon everything sacred in society and to overthrow those institutions which have hitherto been deemed the best guardians of civil liberty.' [See also the very pertinent observations of Marshall, J., in State v. Shepherd (1900) 113 Geo. 114 : 15 L.R.A. 225 quoted in Governor of Bengal v. Moti Lal 20 Ind. Cas. 81 : 41 C. 173 at p. 176 : 18 C.L.J. 452 : 14 Cr. L.J. 321 : 17 C.W.N. 1253.] In my opinion this Court has undoubted jurisdiction to deal summarily with persons who have committed contempt by scandalous attack upon the Judges, and such power should be exercised in the present instance. When I hold this, I do not overlook the assertion of the printer and publisher that the articles before us were published by him in good faith and in the public interest. The sincerity of this plea appears to me to be, open to the gravest doubt. But, even on the assumption that this allegation is literally true, I desire to add that, while I do not underrate in the least degree the importance of the liberty of the press, I cannot hold it expedient that any class of the community should be priviJged to attack the Courts so as to interfere with the rights of litigants or to embarrass the administration of justice. The publishers of newspapers have the right, but no higher right than others, to bring to public notice the conduct of Courts, and provided the publications are true and fair in spirit, there is no law to restrain the freest expression of the disapprobation that any person may entertain of what is done in or by the Courts. But liberty of the press must not be confounded with license or abuse of that liberty, and though it may be true that where the liberty of the press and freedom of public comments end, there tyranny begins, it is at least equally true that where vituperation begins, there the liberty of the press ends; and the inherent power of the Superior Courts of the Record to punish any publication calculated to interfere with the administration of justice cannot be deemed in any Way restricted by considerations of the kind urged by the printer and publisher.
91. As regards the third question, namely, what is the true nature of the present proceedings, is it civil or criminal in character, the matter is of practical importance from the point of view of the mode of trial to be adopted. In the case of dovetnor of Bengal v. Moti Lal 20 Ind. Cas. 81 : 41 C. 173 at p. 176 : 18 C.L.J. 452 : 14 Cr. L.J. 321 : 17 C.W.N. 1253 I had occasion to examine fully the distinction between a criminal and a civil contempt, which is of a fundamental character.
92. A criminal contempt is conduct that is directed against the dignity and authority of the Court. A civil contempt, on the other hand, is failure to do something ordered to be done by a Court in a civil action for the benefit of the opposing party therein. Consequently, in the case of a criminal contempt, the proceeding is for punishment of an act committed against the majesty of the law, and, as the primary purpose of the punishment is the vindication of the public authority, the proceeding conforms, as nearly as possible, to proceedings in criminal cases. In the case of a civil contempt, on the other hand, the proceeding, in its initial stages at least, when the purpose is merely to secure compliance with a judicial order made for the benefit of a litigant, may be deemed instituted at the instance of the party interested and thus to possess a civil character. But, here also refusal to obey the order of the Court may render it necessary for the Court to adopt punitive measures against the person who has defied its authority: at that stage, at least, the proceedings may assume a criminal character. In this manner, the dividing line between acts which constitute criminal and others which constitute civil contempt may become indistinct in those cases, where the two gradually merge into each other: see St. James Even-ing Post case (1742) 2 Atk, 469 : 26 E.R. 683, Scott v. Scott (1913) A.C. 417 : 82 L.J.P. 74 : 109 L.T. 1 : 57 S.J. 498 : 29 T.L.R. 520, Lechmere Gharlton's case (1837) 2 My and Cr. 316) 40 E.R. 661: 45 R.R. 68, Wallace, In re (1866) 1 P.C. 283 : 4 Moore. P.C. (N.S.) 140 : 36 L.J.P.C. 9 : 15 W.R. 533 : 16 E.R. 269., Davies, In re (1888) 21 Q.B.D. 236 : 37 W.R. 57., Onslow's and Whalley's case (1873)9 Q.B. 219 and Skip-worth's case (1873) 9 Q.B. 230. A careful scrutiny of the cases in the books shows, however, that much confusion exists in the reported decisions as to whether or not contempt proceedings are civil or criminal, where the contempt is committed in relation to a civil proceeding, and, it is consequently desirable to investigate briefly the true test for differentiation.
93. The power to punish for contempt is inherent in the very nature and purpose of Courts of Justice. It subserves at once a double purpose, namely, as an aid to protect the dignity and authority of the tribunal and also as an aid in the enforcement of civil remedies. The power may consequently be exercised in civil or criminal cases or independently of both, and either solely for the preservation of the authority of the Court or in aid of the rights of the litigant or for both these purposes combined. By reason of this twofold attribute, proceedings in contempt may be regarded as anomalous in their nature, possessed of characteristics which render them more or less difficult of ready or definite classification in the realm of judicial power. Hence, such proceedings have sometimes been styled sui generis. That they are largely of a criminal nature, inasmuch as the Court has power to convict and punish for the wrong committed, cannot be disputed, and yet it must be recognised that, in some respects, by reason of the end subserved, they partake of the nature of a civil remedy. This dual characteristic has given rise to many controversies, specially when questions have arisen as to right of appeal from the order passed [as in, Reg. v. Barnardu (1889) 23 Q.B.D. 305 : 58 L.J.Q.B. 553 : 61 L.T. 547 : 37 W.R. 789, Barnardo v. Ford (1892) A.C. 326 : 61 L.J.Q.B. 728 : 67 L.T. 1 : 56 J.P. 629, Relmore v. Smith (1886) 35 Ch. D. 449 : 56 L.J. Ch. 145 : 56 L.T. 72 : 35 W.R. 157, A.G.v. Kissane (1893) 32 Ir. L.R. 220, Hunt v. Olarte (1889) 58 L.J.Q.B. 490 : 61 L.T. 343 : 37 W.R. 724, Reg. v. Staffordshire County Court Jttdge(1888) 57 L.J.Q.B. 483 : 36 W.R. 796, O'Sheav. O'Shea (1890) 15 P.D. 59 : 59 L.J.P. 47 : 62 L. 713 : 38 W.R. 374 17 Cox. C.C. 107, Bessette v. Conkey Co. (1904) 194 U.S. 324.; 48 Law. Ed. 997, Ohtislensen Engineering Co., In the matter of (1904) 194 U.S. 458 : 48 Law, Ed. 1072, Warden v. Searls (1887) 121 U.S. 14 : 30 Law. Ed. 853, Gompers v. Buck's Store do. (1911) 221 U.S. 418], the applicability of rules of evidence [Celluloid Co. v. Chrolithian Co. (1885) 24 Fed. 585, Bullock Co. v. West-inghouse Co. (1904) 63 C.C.A. 607 : 194 U.S. 636, J.E. 7 parte Gould (1893) 99 Cali. 360 : 21 L.R.A. 751 : 37 Am. St. Rep. 57], the finality of the judgment [.Fischer v. Hayes (1881) 19 Blatoh 13; C. Fed. 63. (74) (1869) 7 Blatoh 23 : 17 Fed. Cas. 9911. (75) (1893) 9 T.L.R. 196 and Re Mullee (174)], liability for payment of costs, Cornish, In re (75), Martindale, In re (1894) 3 Ch. 193 at p. 200 : 64 L.J. Ch. 9 : 8 Rule 729 : 71 L,. T. 468 : 43 W.R. 53 and Day v. Longhurst (1892) 62 L.J. Ch. 334 : 2 E. 234 : 68 L.T. 17 : 41 W.R. 283], right of trial by Jury, [Tinsely v. Anderson (1898) 171 U.S. 101 : 43 Law. Ed. 91, Ee Debs (1895) 158 U.S. 564 : 39 Law, Ed. 1092 and Eilenbecker v. District Court of Plymouth County, Iowa (1890) 134 U.S. 31 : 33 Law. Ed. 801] and other like matters. The difficulty in each case is to determine when a particular proceeding assumes the criminal rather than the civil aspect, or when of both, and, if the latter, which feature must control. The question has been repeatedly and elaborately discussed by the Supreme Court of the United States: Kearney Ex parte (1882) 7 Wheat. 38 : 5 Law. Ed. 391', New Orleans v. New York Mail Steamship Co. (1874) 20 Wall. 387 : 22 Law. Ed. 354, Chiles, In re (1875) 22 Wall. 157 : 22 Law. Ed. 819. (S3) (1880) 102 U.S. 12]; 26 Law. Ed. 95, Hayes v. Fischer (1880) 102 U.S. 12]; 26 Law. Ed. 95, Warden v. Searls (1904) 194 U.S. 458 : 48 Law, Ed. 1072, Ex. Debs In re (1895) 158 U.S. 564 : 39 Law, Ed. 1092, O'Neal v. United States (1903) 190 U.S. 36 : 47 Law. Ed. 945, Christensen Engineering Co. In the matter of (1904) 194 U.S. 458 : 48 Law, Ed. 1072 Bessette v. Conkey Co. (1904) 194 U.S. 324.; 48 Law. Ed. 997, Doyle v. London Guarantee Co. (1907) 204 U.S. 559 and Gompers v. Buck's Stove Co. (1911) 221 U.S. 418. The view de-ducible from these decisions is in general agreement with what is indicated above, namely, a proceeding to punish for contempt has the essential qualities of a criminal proceeding, whether the proceeding is initiated primarily to vindicate the Court's authority or solely as a coercive and a remedial measure to enforce the rights of the litigant or for both these purposes combined. This must be so, since it necessarily results from the nature of the power to punish for contempt that whatever the primary purpose of such a proceeding may be, it is always within the power of the Court to make its judgment, in part, at least, punitive or vindicatory in character; in other words, where the sole purpose sought by initiating the proceeding is to secure the coercive and remedial action of the Court against a party, the Court may nevertheless, in its discretion, add a punishment, by way of fine or imprisonment, for the failure of the person in contempt to obey its mandate, I think it undeniable that the proceeding must be regarded from its inception to the point of judgment as of a criminal pature, or, at least potentially so, since until the judgment is given, it cannot be known what its character will be. It is the judgment, therefore, which must eventually in any case determine the character of the proceeding, and this leads to the conclusion that logically, perhaps, instead of characterising contempt proceedings as criminal or remedial according to circumstances, it is contempt judgments that should be so classified. In any view, there is no room for controversy that where, as here, the contempt consists in an attack upon the Court, the proceedings, instituted to vindicate its dignity, are of criminal nature, even though the attack has been made in connection with civil suits or appeals, either actually decided or pending or about to be taken up for disposal [Governor of Bengal v. Moti Lal 20 Ind. Cas. 81 : 41 C. 173 at p. 176 : 18 C.L.J. 452 : 14 Cr. L.J. 321 : 17 C.W.N. 1253].
94. As regards the fourth question, we have to consider separately the liability of each of the five persons who have been called upon to show cause why they should not be committed for contempt of Court. Tarit Kanti Biswas has filed an affidavit to the effect that he is the printer and publisher of the Amrita Bazar Patrika and that in such capacity he printed and published the 'articles mentioned. He states, however, that he exercises no control whatever over the contents of the newspaper, that he did not read the articles when they were handed over to him for publication, that he did not consider, at any time prior to publication, their meaning or purport, that he inserted them in the paper in the usual bourse of business, that he acted bona fide and was not actuated by a disrespectful or other improper feeling or motives towards the Court or the Chief Justice, and that he did not intend to excite contempt or to reflect in any way upon the integrity or dignity of the Court or of the Chief Justice in his administration thereof. Notwithstanding this defence there can be no doubt as to the liability of the printer and publisher; for as Lord Morris observed in McLeod v. St. Aubyn (1899) A.C. 549 : 68 L.J.P.C. 137 : 81 L.T. 158 : 48 W.R. 173 : 15 T.L.R. 487, a printer and publisher intends to publish and so intending cannot plead as a justification that he did not know the contents. Indeed, this has been the settled law ever since the decision of Lord Hardwioke in St. James Evening Post case (1742) 2 Atk, 469 : 26 E.R. 683, which was followed by Lord Erskine in Jones, Ex parts (1806) 13 Ves. (Jun.) 237 : 33 E.R. 283, and by Stirling, J., in American Exchange in Europe v. Oillt'g (1889) 58 L.J. Ch. 706 at p. 707 : 61 L, T. 502, Cheshire v. Strauss (1896) 12 T.L.R. 291, Kex v. Parsce (1903) 2 K.B. 432 : 72 L.J.K.B. 839 : 89 L.T. 439 : 52 W.B. 215 : 67; P. 421 : 19 T.L.B. 627, Emmens v. Pottle (1885) 16 Q.B.D. 354 at p. 357 : 55 L.F.Q.B. 51 : 53 L.T. 808 : 34 W.E. 116 : 50 J.P. 228, Bex. v. Duties (1906) 1 K. B 32: 75 L.T.K. B 10 1 : 93 L.T. 772 : 54 W.R. 107: 22 T, L.B. 97, Daw v. Eley (1869) 7 Eq. 49f 38 L.J. Ch. 113 : 17 W.R. 245, Tichborne v. Tichborne (1867) 7 Eq. 55 note; 15 W.R. 1072 at p. 1073 : 17 L.T. 5, Cheltenham fy Swansea By. Carriage and Waggon Co., In re (1860) 8 Eq. 580 : 38 L.J. Ch. 330 : 20 L.T. 169 : 17 W.R. 463 and Littler v. Thomson (1839) 2 Beay. 129 : 48 E.B. 1129: 50 R.R. 124. The Rule must consequently be made absolute against the printer and publisher. With regard to his allegation that he had no intention whatever to offend the dignity or integrity of the Court and that in reality he was helpless in the position he oscupied as a servant of the Company, one cannot but feel that the value of suoh assurance is considerably discounted by the faot that he has given no information to the Court. I am not unmindful that as ruled In the matter of a Special Reference from the Bahama Inlands (1893) A.C. 138, he was under no legal obligation to assist the Court in any way, and to disclose the name of the person primarily responsible for the articles; still his conduct serves to throw doubt in a considerable measure on the genuineness of his profession that he had no intention to prejudice the due course of administration of justice or to oast any reflection on the Judges of this Court. He must accordingly take the consequences of his act, and cannot reasonably urge that he has established a claim for specially considerate treatment. See the observations of Stirling J., in American Exchange in Europe v. Gillig (1889) 58 L.J. Ch. 706 at p. 707 : 61 L, T. 502.
95. As regards the other four defendants, it is necessary to state that they have not all taken up the same attitude in this matter. Counsel on behalf of Moti Lal Ghose declined to answer, as he was entitled to do, the question put by me, whether he was in reality one of the Directors of the Company as stated in the return of Golap Lal Ghose alleged to have been filed under Section 32 of the Indian Companies Act, 1913. Pijush Kanti Ghose has filed an affidavit in which he admits that he is one of the Directors of the Company, but that neither he nor his co directors exercise any control over the contents of the newspaper and perform such duties and exercise such powers only as are mentioned and defined in the Articles of Association. He farther alleges that he was absent from Calcutta from the 21st May to the 4th June and was not here on the date when the second article appeared. Mrinal Kanti Ghose has filed a similar affidavit, in which he admits that he is the Secretary of the Company. He further alleges that Moti Lal Ghose, Gopal Lal Ghose and Pijush Kanti Ghose are Directors of the Company, that Golap Lal Ghose is also the Financial Manager, that neither he nor the Directors nor the Financial Manager exercises any control whatever over the contents of the paper and that the Directors perform such duties and exercise such powers only as are mentioned and defined in the Articles of Association (extracts wherefrom are appended to the affidavit). He enumerates also the duties of the Secretary and of the Financial manager, and finally adds that he was absent from Calcutta from the 4th May to the 22nd May and was not here on either of the two dates when the articles mentioned appeared. Golap Lal Ghose has not filed any affidavit, and on his behalf, Counsel has contended that there is no legal evidence whatever to connect him in any way with the publication of either article. This argument is based on three grounds, namely, first, that secondary evidence of the return alleged to have been filed under Section 32 of the Indian Companies Act was not admissible; secondly, that oven if secondary evidence were held admissible, evidence was requisite to prove that the original had been filed by Golap Lal Ghose who is Director and Financial Manager of the Company and has been called upon to show cause; and, thirdly, assuming but not admitting that he was a Manager on the 5th March 1917, as stated in the return, there is no evidence that he was Manager on either of the dates when the offending articles were published.
96. Before I deal with these objections and their effect upon the Rule, I may make the preliminary observation that the materials which were placed before the Court when the Rule was issued amply justified the action then taken, indeed, made it in a manner incumbent upon the Court to follow the course actually adopted. These materials showed that the Amrita Bazar Patrika was the 'property of a Company called the Amrita Bazar Patrika Limited, incorporated under the Indian Companies Act, 1882, on the 19th November 1908; that one of the objects for which the Company was established was to acquire and take over as a going concern tke business of newspaper proprietors, printers and publishers then carried on in connection with the paper; that the registered office of the Company was at No. 2, Ananda Chatterjee's Lane, where the newspaper was published, and where many of the shareholders and Directors who were olosely related to each other lived, and that on the 5th March 1917, the Directors and Managers were the persons mentioned in the return filed by the Secretary under the provisions of the Indian Companies Act. In these circumstances, there was a strong prima facie case against the defendants that they were connected with and responsible for the publication of the articles in question. But although these materials were sufficient to justify the issue of a Rule, on careful scrutiny and on examination of the allegations in the affidavits filed in answer to the Rule, I see no escape from the conclusion that an order cannot properly be made against any of the defendants other than the printer and publisher.
97. With reference to the legal objections just enumerated, I am not prepared to accede to the contention that secondary evidence of the returns in the custody of the Registrar of Joint Stock Companies is not admissible. Section 65, Clause (e), of the Indian Evidence Act provides that secondary evidence may be given of the contents of a document when the original is a public document within the meaning of Section 74. Section 74, Sub-section 2, provides that public records kept in British India of private documents are public documents. The question consequently reduces to this, whether the returns in the custody of the Registrar of Joint Stock Companies constitute public records of private documents. The observation of Lord Blackburn in Sturla v. Freccia (1880) 5 A.C. 623 at p. 642 : 50 L.J. Ch. 86 : 43 L.T. 209; W.R. 217 : 44 J.P. 812 is of no assistance in the solution of this question and does not show that a public record of a private document is limited to an entry made in a book by a public officer, which reproduces the contents oi the document and thus constitutes a written memorial made by the public officer authorised by law to perform that function. The term 'record' as appears fram the Oxford Dictionary (Vol. VIII, page 266) has a more comprehensive meaning and includes a collection of documents. When, as in the case of the Indian Companies Act, the Legislature has provided that returns are to be lodged with a public officer, these returns, when transmitted to and filed by him, do constitute public records of private documents within the meaning of Section 74, Sub-section 2, although they are not copied out by the Registrar of Joint Stock Companies into a volume kept for the purpose; they are undoubtedly intended for reference and used by the public, But though this objection is of no avail, the second exception is well-founded; for although secondary evidence may be admissible, the party who produces the evidence is not relieved of his obligation to prove the execution of the document, just as if the original had been produced, unless the case is covered by Section 90 of the Indian Evidence Act or the Legislature has expressly provided that the document or endorsement thereon is receivable in evidence without proof of execution, as, for example, in Section 60 of the Indian Registration Act. Consequently, as against Mtiti Lal Ghose and Golap Lal Ghose there is no legal evidence to establish that the former is a Director and the letter a Manager of the Company, The statements made by Pijush Kanti Ghose and Mrinal Kanti Ghose, in the affidavits filed by them at the hearing, cannot fairly be used to the Detriment of other defendants as the proceeding is in the nature of a criminal trial. Besides, as pointed out in the case of Governor of Bengal v. Moti Lal 20 Ind. Cas. 81 : 41 C. 173 at p. 176 : 18 C.L.J. 452 : 14 Cr. L.J. 321 : 17 C.W.N. 1253 on the authority of the decision in Reg. v. Stanger (1871) 6 Q.B. 352 : 40 L.J.Q.B. 96 : 24 L.T. 226 : 19 W.R. 640, supplementary evidence cannot be given so as to prejudice the position of the accused. To the same effect are the observations made by Wright, J., Hooley, In re, Hooley, Ex parte (1899) 6 Hanson 44 at p. 46 : 79 It T. 703 when he was asked to grant leave to amend a notice of motion to commit a company for contempt of Court: 'That is not the way in which the Court deals with matter of this kind affecting the liberty of the subject. Applicants must come with their machinery ready.' The procedure should be at least equally strict to adherence to the forms of the law at least equally scrupulous, when the Court finds itself in the position of Prosecutor and Judge and an unexpected lacuna in the evidence transpires daring the trial. The Court must act with great caution in strict conformity with the requirements of the law and avoid a perhaps not unnatural tendency to supplement the evidence [Martin v. Mackonochie (1878) 3 Q.B.D. 730]. As regards the third legal objection, however, I am not convinced that there is any substance in the argument. Section 87 of the Indian Companies Act requires that notice of changes among the Directors or Managers shall be filed from time to time, The certifiei copy of the return furnished by the Registrar of Joint Stock Companies must, therefore, be presumed to embody the latest changes. Consequently, if the return had been duly proved, it would have furnished prima facie evidence of the names of the directors and managers on the day the copy was supplied. But this point is immaterial, as, in my opinion, there is no legal evidence to connect Moti Lal Ghose and Golap Lal Ghose with the publication of the articles.
98. There remains for examination the cases of Mrinal Kanti Ghose, and Pijush Kanti Ghose who admit that they are directors. But they assert in their respective affidavits that none of the directors nor the financial manager exercises any control whatever over the contents of the paper. There are no materials at the disposal of the Court sufficient to contradict these statements made on oath; consequently, the denial is, in the oircumstanoes, a sufficient answer to the rule. I cannot but observe, however, that the further assertion in the affidavits of these two persons that the directors perform such duties and exercise such powers only as are mentioned and defined in the Articles of Association detracts to some extent at least from the value of the previous statement. The Articles of Association show that the business of the company is required to be managed by the directors, while the Memorandum of Association shows that the object for which the company was established was to acquire and take over as a going concern the business of newspaper proprietors, printers and publishers then carried on in connection with the 'Amrita Bazar Patrika.' Consequently, the Memorandum and Articles of Association taken together may imply that it was the duty of the directors to manage the publication of the paper, and from this point of view they might be held responsible for the publication of the articles mentioned. This inference might possibly be strengthened by the circumstance that the existence of an editor is not mentioned, not even so much as suggested, in these proceedings. But although the case may, in these circumstances, be one of strong suspicion, it is impossible to hold that notwithstanding the categorical denial to the contrary, it has been established beyond doubt that the directors were responsible for, or connected twith the actual publication of the two articles. We cannot possibly hold as a matter of law that the directors of a limited company which owns a newspaper are liable to be committed for contempt of Court on account of a libel published in the paper [Reg, v. Judd (1889) 37 W.R. 143 : 16 Cox. C.C. 559 : 59 L.T. 993 : 53 J.P. 215]. The decision in Green, Ex parte, Robbins, Int'te matter of (1891) 7 T.L.R. 411 cannot be treated as an authority for a general proposition of law that where a limited company disseminates amongst newspapers matter amounting to contempt of Court, their manager, merely because he was the manager, wag liable to be committed. The decision rested, I think, on the facts admitted or established before the Court, which showed that the manager was in fact responsible for all the paragraphs sent out to newspapers. Nor can we apply to the case before us the presumption which at one time was applied in England as to the responsibility of the proprietor of a newspaper for libels published in his paper. The view that the proprietor of a newspaper was answerable, criminally as well as civilly, for the acts of his servants or agents in misconducting a newspaper, enunciated by Lord Kenyon in E. v. Walter (1799) 3 Esp. 21 : 16 R.E. 808, and re-stated by Lord Ellenborongh, C.J., in R. v. White (1829) 1 Moo and Malk 271; (1811) Holt on Libel 287, and by. Lord Tenterden, C.J., in R. v. Cuteh (1829) 1 Moo. and Malk. 433 at p. 437, has long been obsolete in England [R. v. Holbrook (1878) 3 Q.B.D. 60 : 47 L.J.Q.B. 35 37 L.T. 530 : 26 W.R. 144 : 13 Cox. C.C. 650], and should unquestionably not be applied in this country in a case of the description now before us, even though it be held applicable to trials for defamation under the Indian Penal Code: Ramasami v. Lokanada 9 M. 387 : 1 Weir 375 : 3 Ind. Dec. (N.S.) 665. (94) 2 Ind. Cas. 193 : 32 M. 338 : 5 M.L.T. 415 : 9 Cr. I.J. 506 and Harisarvothama Rao v. Emperor 2 Ind. Cas. 193 : 32 M. 338 : 5 M.L.T. 415 : 9 Cr. I.J. After anxious consideration of all the materials on the record, I have thus arrived at the conclusion that the Rule must be discharged also as against Mrinal Kanti Ghose and Pijnsh Kanti Ghose.
99. I cannot consider the result of this trial satisfactory from the vital point of view indicated by Lord Hardwicke in 8t. James Evening Post Case (1742) 2 Atk, 469 : 26 E.R. 683, namely, that there cannot be anything of greater consequence than to keep the streams of justice clear and pure so that parties may proceed with security both to themselves and their characters. The persons responsible for the grave contempt of Court which has been committed have not been brought to justice. This is not a matter for legitimate surprise as the Court has not the machinery at its disposal for the discovery of the offenders and the materials available from the public records have proved insufficient for the purpose. At the same time the offenders have preferred to keep themselves in the dark and have not adopted the eminently honourable course which was pursued in two other instances in this Court and which evoked the just commendation of Sir Barnes Peacock and Sir Richard Garth respectively: Banks and Fenwick In the matter of 45 Ind. Cas. 113 : 26 C.L.J. 401 : 19 C.L.J. 449 and Surandrarath Baneryee v. Chief Justice of Bengal 10 C. 109 : 10 I. A, 171 : 4 Sar. P.C.J. 474 : 5 Ind. Dec. (N.S.) 76. They have nothad the courage to come forward to avow their responsibility and either to justify their action or to express contrition for their misconduct. Even the directors of the company have contented themselves with a disavowal of their responsibility and have expressed no regret whatever for the articles published in a newspaper owned by the company. In these circumstances it is undoubtedly worthy of consideration whether legislative provision should not be made to compel 'registratioji of the name of the editor and proprietor of a newspaper precisely in the same way as that of the printer and publisher. (See 44 and 45 Vict. C. 60.) It may finally be observed that, on recurrence of a case of this character, the Court may find it necessary to proceed against 'the company, as has been done in some recent instances. No doubt, the view was maintained at one time that a corporation could not be held liable for contempt of Court, as by reason of its impersonal nature it could not be attached: Gttilford v. Mills (1866) 2 Keb, I; T. Eaym. 152. But the weight of modern authority is apparently against this doctrine, and the view has been maintained that proceedings by way of contempt would lie against corporations as well as individuals: in the case of individuals, the process is by attachment of the person, followed by fine or imprisonment or both; in the case of corporations, the process is by fine followed by sequestration or distraint: R. v. Birmingham Gloucester Ry. Co., (1842) 3 Q.B. 223 : 2 (G. and D. 236 : 3 Ry. Cas. 148 : 11 L.J.M.C. 134 : 6 Jur. 801 : 114 E.R. 492 : 61 R.R. 207 London v. Lynn (1789) 1 H.B1. 206, Spokes v. Banbury Local Board (1865) 11 Jnr. (N.S.) 1010 : 35 L.J. Ch 105 : 13 L.T. 453. The decision of Wright, J., in Hooley, In re, Hooley, Ex parte (1839) 2 Beay. 129 : 48 E.B. 1129: 50 R.R. 124, is seemingly an authority only for the proposition that a limited company cannot be committed to prison for contempt: it does not decide the question whether such a company may not be fined for contempt of Court and the fine recovered by distraint or sequestration. In the Courts of the United States, the liability of a corporation for contempt of Court has been affirmed by a large preponderance of authority: Bloomington Church v. Muscatine (1855) 2 Iowa 69, West Jersey Co. v. Board of Public Works (1896) 58 N.J.L. 536 : 37 Atl. 578, U.S. v. Munplus Ry. Co. (1881) 6 Fed. 237, Re Westminster Realty Corporation (1908) 108 N.Y. Sup. 551, Union v. People (1887) 121 Illinois App. 647, Stratton v. Merswether (1913) 154 Ky. 839 : 159 S.W. 613, Schreiber v. Garden (1912) 137 N.Y. Sup. 747, State v. Baltimore Ry. Co. (1913) 73 W. Va. 1 : 79 S.E. 834. One of the most recent cases in which the question is examined as one of principle is that of Fiedler v. Banbriek Bros. (1912) 162 Missourie App. 528 : 142 S.W. 1111, where, upon an elaborate review of earlier decisions, the conclusion was reached that corporations, though not liable to be imprisoned, were liable to be fined by way of punishment for contempt of Court. (See also Rapaljee on Contempts, Section 48, and High on Injunctions, Section 1460.) It is not necessary for me to decide finally on this occasion the liability of corporations to be punished for contempt of Court in their corporate capacity; but in view of the turn events have taken in the present proceedings it is desirable to point out that when a grave contempt of Court has been committed by a newspaper owned by a company, the immunity from punishment which the offenders may imagine they enjoy by reason of stolid silence is most probably of an illusory character.
100. My conclusion on the whole is that the Rule must be made absolute against the printer and publisher, but discharged against all the other defendants.
101. Chitty, J.--I have had the advantage of reading the judgments just delivered by my Lord the Chief Justice and Mr. Justice Woodroffe, and I entirely agree with what they have said generally about the case, and the orders to be passed with regard to the several respondents. I wish, however, to state, with regard to Babu Moti Lal Ghose that I should have been disposed to hold him responsible for the articles in question, as one who has been proved to be a director of this company and who in that oapactiy has been called upon by this Court to show cause, and has shown none. As the majority of the Bench are in favour of giving him the benefit of the doubt, I do not desire to press my opinion further. I therefore, concur in the order about to be passed.
102. Mr. Justice Fletcher, who is unavoidably absent to-day, desires me to say that he too was prepared to hold Babu Moti Lal Ghose responsible, but under the circumnstances he also concurs in the order to be passed.
103. Order of the Court.
104. Sanderson, C.J.--Tarit Kanti Biswas The members of the Court are unanimously of opinion that in printing and publishing the two articles in question in the Amrita Baiar Patrika newspaper you were guilty of a contempt of Court.
105. The serious nature of it has been referred to in the judgments which have been delivered, and it is not necessary, therefore, for me to recapitulate what has already been said.
106. In the earliar part of your affidavit you state that you did not read the articles when they were handed to you for publication and that you inserted them in the usual course of your business as printer and publisher.
107. Later, however, in your affidavit you proceeded to try and justify the publication of the articles by alleging that they were published by you in good faith and in the public interest, a position which we consider incbnsitent with that of a man who puts forward the case that he printed and published the articles in ignorance of their contents.
108. We are all of opinion there was not the smallest justification for the publication of such untrue statements and unjustifiable imputations as were contained in the articles.
109. If the person responsible for the publication of these articles had come forward and had taken the responsibility upon himself, or if you had disclosed to the Court the person who was really responsible for the publication, which must have been within your knowledge, although you might not have known the actual writer of the article, it might have been possible for ua to treat the offence in your case with such leniency as your learned Counsel prayed for.
110. The person really responsible, however, nas riot been disclosed but you, being the printer and publisher, whose identity could not be concealed and whose legal liability could not be denied, are left by your employers to bear the brunt of this matter.
111. We have taken all these matters into consideration. The contempt of Court, however, in our judgment was of such a nature that in the interest of the administration of justice it is impossible for ns to pass it over without some penalty.
112. It is essential to vindicate the authority of the Court and to make it clear that articles such as those in question constituting a grave contempt of Court cannot be published with impunity.
113. Tarit Kanti Biswas! The judgment of the Court is that you Tarit Kanti Biswas do pay to the Accountant-General of this Court a fine of Rs. 300 before 4-30 P.M. to-day, and that you be detained until such hour, or until such time as the fine is paid; and if the fine is not paid as herein directed, you be lodged on the civil side of the Presidency Jail until the said fine is paid or until the further order of this Court.