Brij Narain, J.C.
1. This is an application on behalf of Sri V. S. Sundaram, District Magistrate, Manipur and Sri T.C. Tiankham, Superintendent Imphal Jail, for obtaining leave for filing an appeal to the Honourable Supreme Court under Article 134(1)(c) of the Constitution of India, against the order of this Court passed in Criminal Misc. Appln. No. 6 of 1955, dated 31-8-1955, by which petitioner 1 was fined Rs. 50/- and petitioner 2 was given a warning for committing contempt of Court under Section 5, Contempt of Courts Act, 1952.
2. The petitioners were convicted under Section 5, Contempt of Courts Act, 1952, by this Court on the application of the opposite party on the ground that the petitioners sought to discredit this Court in the eyes of the public by re-arresting the opposite party on 26-4-1955 immediately after he was released and taken to the outer gate of the Jail, in accordance with the order of this Court passed on the same date in Habeas Corpus Petition No. 5 of 1955.
3. The opposite party along with Dr. Ram Monohar Lohia and five others were put under arrest on 11-4-1955 at about 5-30 p. m. in Tikendrajit Park, Imphal under Section 143, 145 and 188, I.P.C. by petitioner 1 for alleged violation of an order under Section 144, Cr. P.C. and the said criminal case was numbered as G. R. Case No. 213 of 1955.
The opposite party along' with other arrested persons filed an application for obtaining a writ of Habeas Corpus under Article 226 of the Constitution of India for quashing proceedings in G. R. Case No. 213 of 1955 on the ground that the order under Section 144, Cr. P.C. was absolutely illegal and the meeting held by these persons was for the purpose of exercising their fundamental rights guaranteed under the Constitution of India.
After this petition was allowed by this Court, the opposite party and Dr. Ram Monohar Lohia were brought to the outer gate of the Jail, but were immediately re-arrested under the Preventive Detention Act, 1950. Later on grounds of detention were supplied to them under Section 7 of that Act and grounds Nos. 3, 4 and 8 were the same as those which formed the basis of G. R. Case No. 213 of 1955.
According to the opposite party, even though, this Court held on 26-4-1955 that no legal arrest could be made on these grounds, the present petitioner No. 1 re-arrested them and on 28-4-1955 the same grounds were given for detention under Section 7, Preventive Detention Act, 1950.
There is no doubt that some more grounds were added, but as the opposite party and his associate could not possibly commit any offence during the time when they were brought from inside the jail upto the outer gate of the jail and as all their previous actions had been thought scrutinised and made basis of the charges in G. R. Case No. 213 of 1955, it was urged that the additional grounds mentioned under Section 7. Preventive Detention Act, had been added mala fide in order to give semblance of genuine proceedings to the proceedings under the Preventive Detention Act, started against the opposite party on the evening of 26-4-1955.
This Court, after going into the merits of the case, came to the conclusion that the action taken by the present petitioners had set in motion a chain of events when by its very nature was likely to interfere with the course of justice, as the test of the offence lay not in the object in the mind of the contenier, but in the tendency which his manifest and outward acts inherently possess to interfere with the uninterrupted flow of justice in an impartial manner.
The petitioners were, therefore, held guilty of contempt of Court as their actions in re-arresting the opposite party on the grounds which had been held to be illegal by this Court the same day amounted to an attempt to discredit this Court in the eyes of the public at it was meant to Impress on the public that whatever order might be passed by this Court, the opposite party would be kept behind the bars and so the action of the applicants clearly sought to undermine the confidence of the public in the proper discharge of this Court's function in deciding the cases strictly according to law without fear or favour.
4. The petitioners now want leave for filing an appeal to the Honourable Supreme Court and it has been urged by the learned Government Advocate that as the arrest and detention of the opposite party were under the Preventive Detention Act and this Court could not properly look to the grounds of detention, the necessary leave of filing an appeal to the Supreme Court should be allowed.
It has further been contended that even though the order under Section 144, Cr. P.C. be deemed to be invalid, petitioner 1 had the right to arrest the opposite party whenever satisfied that the former was acting in a manner prejudicial to the maintenance of public order.
Again, it has been contended that as additional grounds had been given for detention of the opposite party under the Preventive Detention Act, no mala fide on the part of the petitioners should have been attributed, simply because the opposite party was released before any Advisory Board could be formed to review these grounds, as before that stage could be reached, it was considerable safe to release the opposite party from detention and Habeas Corpus petition filed by Dr. Ram Monohar Lohia to the Honourable Supreme Court for securing his release from detention under the Preventive Detention Act could have no concern with the case of the present opposite party.
As a matter of fact, the opposite party was released and all proceedings against him were quashed in compliance with the order passed in Criminal Misc. Appln. No. 5 of 1955, and so, according to the petitioners, no inference regarding commission of contempt of Court by the petitioners could properly be drawn. Lastly, it has been contended that as the detention order was confirmed by the Manipur State Government, the order of detention under the Preventive Detention Act, issued against the opposite party could not be deemed to be mala fide and the Manipur State Government should have been made a party to the contempt proceedings.
5. On behalf of the opposite party, it has been contended that the present application is legally not maintainable as the order dated 31-8-1955 was passed by this Court as a Court of record in exercise of summary jurisdiction which has been recognised by Article 215 of the Constitution and by Sections 2 to 5. Contempt of Courts Act, 1952 and so it is not open to the present applicants to ask this Court to grant leave for filing appeal to the Honourable Supreme Court as Article 134 of the Constitution does not contemplate any appeal in quasi-criminal proceedings.
It has further been contended that as this case does not involve any question of law and the order dated 31-8-1955 was passed on a pure finding of facts that action of the petitioners in re-arresting the opposite party on 26-4-1955 was mala fide, no leave to appeal to the Honourable Supreme Court should be granted in this case land the present petition should be rejected with costs.
6. The facts of the case as alleged in the Misc. Appln. No. 6 of 1955 of this Court had not been challenged by the present petitioners in their affidavit and the principal arguments advanced by the learned Advocate, in pressing the application for obtaining leave to file an appeal before the Hon'ble Supreme Court are:
1. That this Court could not legally examine the sufficiency or otherwise of the grounds of detention given by the applicant No. 1 under the Preventive Detention Act,
2. That Manipur State Government was a necessary party to Misc. Appln. No. 6 of 1955 of this Court, and
3. The order under Section 144, Cr. P.C. was legal although technically defective.
7. The learned Advocate, for the opposite party has contended that the present application for leave to appeal to the Hon'ble Supreme Court is legally not maintainable in a contempt case of this nature.
The argument is that as this Court inflicted the penalty for contempt of Court as a Court of record in the exercise of its discretion in summary proceedings, no leave to appeal can be granted in such circumstances and reliance has been placed on - 'Rainy v. Justices of Sierra Leone' (1853) 8 Moo PC 47 (A); - McDermott v. Judges of British Gualna' (1886) LR 2 PC 341 (B); - 'In Re Tusbar Kanti Ghosh' 39 Cal WN 823 (C); - 'Zikar v. State' 1952 Nag 130 (AIR V 39) (D) and - 'Surendra Nath v. Chief Justice and Judges of Bengal' 10 Cal 109 (PC) (E), which lay down that when the High Court as a Court of record thinks it fit to exercise summary jurisdiction and under that jurisdiction punishes for contempt of Court, it is not open to the person concerned to ask the High Court for leave to appeal to His Majesty in Council.
In - 'S.S. Roy v. The State' : AIR1953Ori266 , it was held that the High Court as a Court of record has exclusive jurisdiction in matters relating to contempt of Court, and findings arrived at, are not open to further challenge, No leave could, therefore, be granted for the purpose of challenging those findings. But it was further held in this ruling that the jurisdiction in contempt proceedings for what is called 'criminal contempt' is criminal and the High Court has the power to grant leave to appeal in such cases under Sub-clause (c) of Clause (1) of Article 134 of the Constitution of India, but only on the very limited ground akin to those on which the Privy Council was granting special leave as in the case in - 'Andre Paul Terence Ambard v. Attorney-General of Trinidad, Tobago', 1936 PC 141 (AIR V 23) (G).
In later decisions, following - 'McLeod v. St. Aubyn' (1899) AC 549 (H), where the Privy Council had entertained an appeal from an order committing for contempt, it has been laid down that leave to appeal can be granted.
In - Pritam Singh v. The State' : 1950CriLJ1270 , the Supreme Court held that generally speaking, special leave to appeal in criminal cases would not be granted unless it was shown that exceptional and special circumstances existed, and that substantial and grave injustice had been done that the case in question presented features of sufficient gravity to warrant a review of the decision appealed against and it was further held in this ruling that it would be opposed to all principles and precedents if the Supreme Court were to constitute itself into a third Court of fact and re-weighing the evidence, came to a conclusion different from that arrived at by the trial Judge and the High Court, vide also - 'Mohindar Singh v. Emperor', 1932 PC 234 (AIR V 18) (J) and - 'Abdul Gafur v. Govt. of Tripura', 1952 Tripura 25 (AIR V 39) (K), in which it was held that principles which apply in granting: leave in any case to appeal to the Supreme Court have also to be considered when issuing a certificate that the case is a fit one for appeal to that Court.
It thus becomes clear that the Court would not be justified in granting a certificate of fitness for appeal, unless it was satisfied that its decision has resulted in any grave and substantial injustice vide - 'Bhanwarji v. The State' 1955 NUC (Madh-B) 3042 (AIR V 42) (L), or that grave and substantial injustice had been done by reason of some departure from the principles of natural justice - vide - 'Krishnakant Vyas v. State 1953 Madh-B 206 (AIR V 40) (M).
It was, however also held in the last case that when the ground upon which the certificate is sought challenges a finding of fact, it is not the ground for granting certificate, vide also - 'Bukhtiarpur Bihar Light Rly. Co., Ltd. v. The District Board. Patna' : AIR1952Pat23 , already referred to above.
It becomes quite clear from the authorities cited above that the leave to appeal can be granted in exceptional cases under Article 134(1)(c) of the Constitution of India provided the requisite conditions are fulfilled and so the objection raised by the opposite party on this ground is to be rejected.
8. I now proceed to see how far have the applicants established that there are sufficient grounds for granting them leave to appeal to the Hon'ble Supreme Court, in this case. It has not been contended that the present petitioners were not given sufficient hearing on the former occasion or that there was any sacrifice of principles of natural justice when the application for taking action under the Contempt of Courts Act, 1952 was heard. As has been already mentioned above, the present petitioners did not challenge the facts which had been mentioned by the opposite party on that occasion.
It has been urged by the learned Government Advocate that petitioner 1 acting as the District Magistrate, Manipur, had power to re-arrest the opposite party under the Preventive Detention Act, 1950 and this Court was not competent to look into the grounds on which the opposite party had been detained and reliance had been placed in this connection on - A.K. Gopalan v. State of Madras' reported in : 1950CriLJ1383 This Court did not look to the grounds with a view to ascertain whether they were sufficient or not but they had been looked into for the purpose of ascertaining whether the order passed under the Preventive Detention Act was a bona fide order or a mala fide one.
There is no doubt that petitioner 1 could give the same grounds for detention at a later stage, if there had been some formal defects in the proceedings started on the former occasion as was held in 'Karamvir Singh v. State of Bihar' : AIR1953Pat334 , but in the present case the grounds which had been reiterated under Section 7, Preventive Detention Act were substantially the same which had been held by this Court to be illegal and not capable of sustaining any conviction and so it cannot be said that those grounds could be advanced once again on account of formal defects in the proceedings in G.R. Case No. 213 of 1955.
The executive in such cases must act within the limits of the powers conferred by law, it must act bona fide and it must act according to the provisions of the law and the Court has a power to scrutinise the action of the executive from the point of view of ascertaining whether the action taken was bona fide or not, vide - 'Vimlabai Deshpande v. Emperor' 1945 Nag 8 (AIR V 32) (Q); - 'Sahadat Ali v. The State of Assam' 1953 Assam 97 (AIR V 40) (R) and - 'Ratanlal Gupta v. The District Magistrate of Ganjam' : AIR1952Ori52 .
9. It was held by this Court that the order issued under the Preventive Detention Act, was not bona fide and the present petitioners failed to establish their good faith while issuing that order and in re-arresting the opposite party under the Preventive Detention Act. An order may be challenged as having been made mala fide without imputing any improper motive to the detaining authority. 'Good-faith' has been defined under Section 52, Penal Code, which is as follows:
Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention.
According to the General Clauses Act, 1897, the element of honesty is material but for the purpose of criminal or quasi-criminal proceedings absence of good faith means simply carelessness or negligence. A detention order passed, without appreciation of the fact that the order in such cases of detention has grave consequences on the judicial trial and must bear scrutiny of the Courts on the footing that such an order was called for notwithstanding such appreciation may well be held to be lacking in bona fides.
10. If petitioner 1 had taken due care and caution he would have considered the advisibility of not re-arresting the opposite party on the outer jail gate as the latter could not possibly commit any offence from inside the jail upto the outer gate. If legal advice had been taken, the same three grounds would never have been mentioned in the grounds of detention under Section 7, Preventive Detention Act, 1950, when they had been expressly held by this Court to be illegal that very day.
The effect of re-arrest of the opposite party clearly was that the public confidence in the Courts was likely to be shaken vide - 'Mankad Prabodhchandra v. Shah Prahlad' 1954 Kutch 2 (AIR V 41) (T) and - 'State of Hyderabad v. C. Nataranjan' 1954 Hyd 180 (AIR V 41) (U), in which it has been held that it is the duty of the High Court to see that the greater Interests of the public are protected and attempts to jeopardise such interest are suppressed.
In - 'State of Uttar Pradesh v. Shyam Sundar Lal' : AIR1954All308 , it was held that the object of contempt proceeding is not to afford protection to Judges personally, from imputations to which they may be exposed as individuals; it is rather intended as a protection to the public whose interests would be very much affected, if by the act or conduct of any party, the authority of the Court is lowered and the sense of confidence which people have in the administration of justice by it is weakened.
For contempt proceedings, the intention or motive of the contemner is not essential if really the act has a tendency or is calculated to impair faith of the general public in a Court of justice in deciding cases without fear or favour.
Once a judgment has been delivered, the Judge and the jury are alike open to public criticism and so long as that criticism does not attribute any base or unfair motive to them, and so long as it does not tend to impair or diminish the authority of the Court or create a general impression in tne public mind destroying its faith in the administration of justice, or lower the authority of the Courts, Judges should not be super-sensitive and hasten to exercise this extraordinary right to suppress legitimate criticism - vide - 'J. C. Medhi, Registrar, Assam High Court v. Frank Moraes' 1954 Assam 201 (AIR V 41) (PB) (W).
In the present case, it has been found, as a fact, that the re-arrest of the opposite party under the Preventive Detention Act, on grounds' which had been held to be illegal that very day, tended to shake the faith of the public in the Court's ability to decide cases without fear or favour. This type of obstruction is most dangerous and it deserves rapid and immediate redress and that is the reason why summary procedure has been laid down by law for this purpose.
Cases, in which tendencies to poison inasmuch as they tend to create distrust and to destroy I confidence of the people in the Courts, are found, (should be deemed to be of prime importance and for protection of rights and liberty of the people generally, suitable action for committal of contempt should invariably be taken. The gravamen is an endeavour to shake the confidence of the public in the Court.
11. I am, therefore, of opinion that this Court could look into the grounds of detention with a view to see whether the action of petitioner 1 was bona fide or mala fide and this argument of the petitioners has, in my opinion, no force.
12. Regarding the contention that the Manipur State Government was a necessary party to the contempt proceedings, I think, the Manipur State Government did not actually commit any contempt. It has not been alleged that the Government definitely asked petitioner l to arrest the opposite party at the outer gate of the jail on the evening of 26-4-1955.
It has been laid down in 'Tarafatullah Mandal v. S.N. Mitra' : AIR1952Cal919 that the practice of impleading the State in contempt proceedings is ridiculous as this proceeding is by its nature a proceeding in personam. I, therefore, hold that this contention of the petitioners also, has no force.
13. The third contention which has been pressed on behalf of the petitioners is that even though the order under Section 144, Cr. P.C. was defective on formal grounds (the Code of Criminal Procedure was not enforced in Manipur at that time), it should have been deemed to be binding on the opposite party because it was intended to preserve peace and public order. It could not be denied that the Code of Criminal Procedure was not in force and so no operative order under Section 144 of that Code could be passed against the opposite party at that time:
It has further been held by this Court as a fact that the opposite party was exercising his, fundamental rights of speech in Tikendrajit Park, Imphal and there appeared to be no chance of disturbance of public tranquillity on account of any act of the opposite party and so the order under Section 144, Cr. P.C. issued against him cannot the deemed to be binding in any manner.
The facts that the opposite party was released before any Advisory Board was created when the other detenu Dr. Ram Manohar Lohia approached the Hon'ble Supreme Court are also very significant. Under Article 134(1)(c) the granting of leave to appeal is discretionary and appeal does not lie as a matter of right as under Sub-clauses (a) and (b) of Clause (1) of that Article.
14. As there has been no departure from the principles of natural justice and as no question of law is likely to be raised nor has it been raised in this Courti at this stage and as there is nothing exceptional or special in this case calling for review of decision of this Court, I think no grounds have been made out for allowing the present petitioner leave to appeal to the Hon'ble Supreme Court.
The decision in Criminal Misc. Case No. 6 of 1955, was based on a pure question of fact that the arrest of the opposite party under the Preventive Detention Act was mala fide and as the opposite party's subsequent conduct also belied all misapprehensions, I reject the present application. As one of the main contentions raised by the opposite party was not substantiated, I order that the parties will bear their own costs in this proceeding.