JUDGMENT
V.K. Gupta, J.
1. On 17, March, 1994 we had pronounced the operative part of the Judgment whereby apology of respondent No. 1 was accepted and respondent No. 4 was convicted for committing contempt of this court and was sentenced to imprisonment till the rising of the court and payment of fine of Rs. ten thousands. We are now giving our reasons for the conclusion that we arrived at on 17 March, 1994.
2. It shall be advantageous to refer to the background in which these contempt proceedings under Section 94 of the Jammu and Kashmir Constitution came to be initiated by two esteemed members of the State Bar practising at Srinagar, namely S/Shri B.A. Rather and S.K. Sharief Geelani, Advocates. In the issue of 7th M ay, 1990 of the Hindustan Times, New Delhi, a publication under caption “Jagmohan faces acid test” datelined Srinagar, May 6, 1990 came to be noticed by the petitioners. This publication was written by Shri Anil Maheshwari, respondent No. 4 who was at the relevant time the correspondent of this newspaper. We are told that even at present Shri Anil Maheshwari is on the staff of the Hindustan Times, New Delhi. Broadly speaking the publication revolves around the then prevalent situation in Kashmir valley which had undoubtedly been afflicted by terrorism, militancy and other forms of widespread disturbances. It started with a report regarding the decision of the State administration to shift its secretariat and other offices from Jammu and Srinagar on the eve of the annual darbar move. It noticed some improvements in the situation in the valley with the opening of primary and middle schools and the shifting of a majority of government staff from Jammu to Srinagar and the provision of Government accommodation to them under the tight security. It was also mentioned that the terrorists have stepped up their activities afresh in a bid to frustrate the move of the State Government to regain normalcy and that the Kashmiri Pandits had become the soft targets by selective killings. The message of the terrorists was to create confidence among their ranks and sympathisers. The current drive of the State administration to flush out was also mentioned in the story. It was revealed that a group of officers, pretending as progressive and secular was disgruntled and was making continuous attempts to settle score with the State Governor through media and that more than one hundred policemen had been dismissed from service during the last three months on account of their links with the terrorists. With the recent arrest of some traders, businessmen and officers on account of their active involvement with the terrorists a dent had been made on the morale of such elements who out of adventurism or to avoid wrath of subversives used to finance the terrorists. A mention was made in the story about Mian Qayuum, leader of the local Bar Association whose anticipatory bail order had been stayed by the Supreme Court, who had slipped from the back door of his house in the locality near Nowgam on the outskirts of the city. Then came the passage which is the subject matter of the present contempt proceedings. Even while we have reproduced sketches of the aforementioned various items forming part of the publication, it shall be desirable and prudent to reproduce the text of the entire passage dealing with the subject matter of this contempt application which reads thus:-
Even the judiciary at the tehsil level and High Court level as well is infiltrated by the subversives. A ‘singular’ example of such infiltration is the manner in which two Judges of the Srinagar Bench of the Jammu and “Kashmir High Court granted stay to some local newspapers against the decision of the State Government to seal their offices and presses and granted anticipatory bail to some persons including half a dozen local journalists. The State Government had launched prosecution against some local newspapers on the charge of sedition as they were publishing the time of “Sehri” and “Iftar” as per the Pakistan Standard Time. Even threats from terrorists to Kashmiri Pendits and non-Kashmiri Government employees to leave the valley within 48 hours or to face the dire consequences were prominently published in these newspapers. The High Court Judges, however, did not give any opportunity to the State by issuing notices and preferred to give ex parte stay orders or grant anticipatory bail. These journalists tried to take cover of the press freedom to carry on as platform for subversive elements. A Sub Judge in Shopian in Pulwama district is an active compaigner of the Jamat-i-Islami, now a banned organisation.
3. Because prima facie, the aforesaid passage relating to the activities of the State judiciary both at the subordinate level as well as in the High Court was considered to be objectionable and prima facie contemptuous in character, these contempt proceedings were initiated by the petitioners against the Editor, Executive President, Printer and Publisher and the correspondent of this newspaper. On 24th May 1990, a Division Bench of this court sitting at Srinagar issued notices to the respondents to show cause as to why they should not be dealt with under Section 94 of the Constitution of J&K State for committing contempt of the High Court and the court of Sub-Judge, Shopian as also members of subordinate judiciary. Since for a long time, notices could not be served upon the respondents and because the court was convinced that there was no other alternative, it vide its order dated 4-10-1992 directed the issuance of bailable warrants against the respondents to be executed through Police Commissioner, Delhi. While the execution of these warrants was in progress, in the meanwhile, vide order dated 10th December 1993 passed in Criminal Transfer Application No. 62/91, this contempt application which had originally been filed in the Srinagar wing of this court was transferred to its Jammu wing. It was after the transfer of the petition from Srinagar to Jammu that on 28th December 1993 for the first time the respondents caused their appearance in the contempt application before the court when they appeared through Shri S.K. Puri and Shri R.K. Gupta their counsel. On that day, i.e., 28th December, 1993, respondents also submitted their reply to the contempt application. We, however, found that the reply submitted by the respondents, even though styled as an unconditional apology, was in fact a conditional one because the respondents had attempted to offer justification for the contemptuous and scandalous writing against this court and its sitting Judges. We also observed that Mr. Puri, learned counsel appearing for respondents has made a feeble attempt to offer explanation in support of the act of the respondents in publishing the news item in question but we refused to consider any such explanation offered at that time keeping in view the contents of the publication and the reply submitted. We accordingly directed the production of respondents Nos. 1 and 4 in the court. We also gave liberty to the respondents, if they so chose, to submit apologies in any other form, as was prayed for by Mr. Puri. On 7th Feb. 1994 respondents Nos. 1 and 4 caused their personal appearance along with their learned counsel. This time unconditional apologies were tendered by the respondents and on their behalf. It shall be advantageous to reproduce these apologies which read thus :
UNCONDITIONAL APOLOGY
I, Anil Maheshwari, Reporter of the news daily The Hindustan Times do hereby unequivocally express my apology for the erring part of the news appearing under the heading “Jagmohan faces acid test” on 5th May, 1990 and express my highest regard and respect for this Hon’ble Court and the Judiciary. I pray that my apology may kindly be accepted.
Sd/-
(Anil Maheshwari)
Reporter
through
(Surinder K. Puri)
Advocate.”
“Unconditional Apology
I.H.K. Dua, Editor of the news daily The Hindustan Times do hereby unequivocally express my apology for the erring part of the news appearing under the heading “Jag-mohan faces acid test” on 5th May, 1990 and express my highest regard and respect for this Hon’ble Court and the Judiciary. I pray that my apology may kindly be accepted.
Sd/-
(H. K. Dua)
Editor
through
(Surinder K. Puri)
Advocate.”
4. Even though vide order dated 28th December 1993, we declined to consider the reply submitted on 27th December 1993 on behalf of the four respondents jointly, to get at the background in which the publication in question was carried, it shall be profitable to refer to two relevant paragraphs of this reply. We reproduce below paras 4 and 6 of this reply which read thus :-
4. That the respondents further submit that the writing in question by the fourth respondent was only a reflection of devastating collapse of the State Administration and the consequent fear psychosis prevailing amongst the people of the Kashmir Valley. A mind which itself is the victim of fear psychosis, a mind which is destablised as a result of unusual turn of events in the valley and a mind which is otherwise dedicated to the responsibility to serve the people as a member of the press core of the country, the said mind could have possibly exaggerated in depicting a particular scenario. The paramount fact remains that none of the respondents could have ever thought of even bringing this Hon’ble Court or the judiciary into disrepute with malicious intent. It is in the backdrop of these circumstances that this Hon’ble Court may consider the validity of the submissions and the apologies tendered while allowing relief sought in this petition.
6. That the fourth respondent, who was earlier stationed at Srinagar as the correspondent, has had to leave Srinagar on account of threats to his life at the hands of terrorists and their sympathisers in the month of May, 1990. He had to shift his family and luggage from Srinagar prior to May, 1990, as the bus in which his 11 years’ old son was travelling was attacked by terrorists and it was on account of firing by the Army Guards accompanying the bus that the child of the fourth respondent was saved but in the firing 30 persons were reported to have been killed. It was an extraordinary unusual, sensitive and critical atmosphere that existed in Srinagar that led to the writing and filing of the news-story by the fourth respondent, for which he is extremely sorry and wishes to be pardoned.
5. The facts of the case are not disputed. It is not disputed that the impugned publication was carried in the newspaper. It is also not disputed that respondent No. 4 is the author of the impugned publication. The fact that respondent No. 1 was the Editor of the newspaper at the relevant time and continues to be so till date has also not been disputed. Respondents Nos. 2 and 3 being the Executive President and Printer and Publisher respectively of the newspaper is also admitted. No proof, therefore, is needed to establish or substantiate these facts. We have, therefore, to consider only one limited aspect of the entire matter. This is as to whether we have to accept the apologies tendered on behalf of respondents Nos. 1 and 4 and, if we do so, what is the course of action available to us to deal with these respondents? Coupled with this is the question relating to the responsibility of the Editor of a newspaper, who admittedly is not the author of the offending publication. Is the Editor responsible and liable for the acts of the author of a story published in his newspaper, and if so, to what extent? Presently we shall be dealing with these two questions.
6. In the case of Haji C.H. Mohammad Koya v. T.K.S.M.A. Muthukoya while dealing with the extent of liability of an editor, their Lordships of the Supreme Court clearly opined that where a person’s name has appeared as an editor in a paper, provisions of Section 7 of the Press and Registration of Books Act, 1967 shall automatically apply and he being a person who controls the selection of the matter that is published in a newspaper is responsible and liable for all acts which originate from such publication. In such an eventuality, Section 7 of the Act raises a presumption of such liability. It was, however, held that the presumption, thus raised is a rebuttable one and the editor can always seek to rebut it by showing that he had nothing to do with the publication of the editorial or the news report. In the case before us, we must say that respondent No. 1 has very candidly, frankly and fairly refused to be drawn into any such legal controversy nor did he try to take cover under such a legal protection. On the other hand, he has, in a manner of speaking, clearly chosen to be in the same position as respondent No. 4 while answering the charge of committing contempt of this court. Respondent No. 1 has not in any manner attempted or tried to wriggle out of his liability or responsibility with regard to the offending publication, except by merely pleading that in practice, it was impossible for him to have had any prior knowledge or information, about the publication and that he came to learn about it himself only when he read the newspaper on the morning of 7th May 1990. By raising this plea, he has not tried to extricate himself of his liability. He has rather made a clean breast of everything.
7. Even while not admitting to absolve himself of the liability, respondent No. 1 has also very fairly and frankly submitted that had he had any prior information about the proposal to publish the offending publication, he would have made sure that it did not go into print. We are, therefore, convinced that it: the present cast:, we cannot pinpoint precisely any actual responsibility upon respondent No. 1, even though technically he is liable for all the acts committed pertaining to the publication in his newspaper. It is because, of this reason and the conduct of respondent No. 1 that we decided to accept his apology, but at the same time also thought it proper to warn him to be careful in future while discharging his professional duties as an editor of a newspaper, especially when these related to the material concerning the institution of the judiciary in the country.
8. Coming to the responsibility of respondent No. 4, who admittedly is the author of the offending publication and who has not disputed that he actually wrote it while being posted in Srinagar at the relevant time, we have to examine whether we can, in the given circumstances of the case accept the: apology of this respondent and allow him to go scotfree. Mr. S.k .Puri, learned counsel appearing for the respondents referred to and relied upon three judgments of the Supreme Court gand Calcutta High Court in the case “In Re S. Mulgaokar” , Ramchandra Mahapatra v. State of Orissa, and Mansa Ram Zade v. Hindustan Steel Ltd., . While putting reliance on those three Judgments Mr. Puri submitted that the apology tendered by respondent No. 4 be accepted and that no punishment be awarded to him. We are unable to agree with the contention of learned counsel while very carefully examining the aforesaid three Judgments because we found that in none of these three cases was any abstract rule laid down either by the apex court or by Calcutta High Court which could be a guiding factor for a court to decide as to whether, in a given set of circumstances to accept or not. to accept an apology tendered by a contemner. On the other hand, we have noted with approval two Judgments of the apex court cited at the bar by the learned Advocate General in the case of Debabrata Bandopadhyaya v. State of West Bengal, Mulkh Raj v. State of Punjab, . In the case of Debabrata Bandopadhyaya v. The State of West Bengal, (1969 Cri LJ 401) (SC), their Lordships of the Supreme Court while dealing with the question of acceptance or otherwise of an apology held as under (at p. 405 of Cri LJ) :-
7. The second point which the High Court unfortunately placed at the very forefront was failure to offer an apology and noted with great show of emotion that none was offered. Of course, an apology must be offered and that too clearly and at the earliest opportunity. A person who offers a belated apology runs the risk that it may not be accepted for such an apology hardly shows the contrition which is the essence of the purging of a contempt. However, a man have the courage of his convictions and may stake his all on proving that he is not in contempt and may take the risk. In the present case the appellants ran the gauntlet of such risk and may be said to have fairly succeeded.
Similarly in the case of Mulkh Raj v. State of Punjab (1972 Cri LJ 754) (SC) it was observed as under in para 9 of the Judgment (at p. 755):-
9. Apology is an act of contrition. Unless apology is offered at the ealiest opportunity and in good grace apology is shorn of penitence. If apology is offered at a time when the contemner finds that the Court is going to impose punishment it ceases to be an apology and it becomes an act of a cringing coward. The High Court was right in not taking any notice of the appellants expression of apology “without any further word”. The High Court correctly said that acceptance of apology in the case would amount to allow the offender to go away with impunity after having committed gross contempt.
9. If we consider the ratio of the aforesaid two Judgments and apply it to the facts of the present case, we find that respondent No. 4 did not at all make any attempt at any stage of the proceedings prior to 7th Feb. 1994 to offer and tender unconditional and unqualified apology for the offending publication. As noticed, the publication was carried in the newspaper of 7th May 1990 and the contempt proceedings were initiated on 17th May 1990. Thereafter despite the respondents having clear knowledge of the pendency of these proceedings and despite their having appeared in the court initially to seek transfer of the contempt application from Srinagar wing to Jammu wing and subsequently while participating in the proceedings in Jammu, had ample opportunities to express repentence for the offending publication. This they could do by one of the two established modes. They could either themselves publish the apology in the newspaper and inform the court of their having done so. Alternatively, they could have directly come to the court and placed themselves at its mercy by offering the apology. They did neither. On the other hand in the reply filed as late on 27th Dec. 1993, even though while terming it as an apology as noticed earlier, in paras 4 and 6, explanation, even though totally unconvincing and irrelevant, was sought to be offered as an excuse for writing the offending publication.
10. It was repeatedly impressed before us by the learned counsel for the respondents that we should adopt an approach of “forgive and forget” and close the matter without proceeding any further against the respondent No. 4. We are, however despite our .best effort’s, unable to subscribe to such an approach because of the contents of the offending publication. When we reflect into the text of the offending publication and look into the actual words used therein, as also the substance flowing out of it, we find that the author (respondent No. 4) acted in the most irresponsible, callous and cavaliar manner while reporting about the functioning of the institution of the judiciary in Kashmir, conduct and character of the Judges of this court as also of subordinate judicial officials. In fact looking to paras 4 and 6 of the reply dated 27th December 1993 (reproduced earlier) we found that perhaps the author was suffering from such a high degree of anger, malice and ill-will that he gave vent to these feelings by unashamedly abusing his freedom of expression as also his privilege as a responsible journalist belonging to a news paper having wide circulation. If the mind of respondent No. 4 at the relevant time was the victim of fear psychosis or it was destablised as a result of unusual turn of events in the valley, that did not mean that he had a licence to denigrate the institution of judiciary and the sitting Judges of this court without there being an iota of material to support such an ill-conceived and deplorable move by him. If respondent No. 4 had to leave Srinagar on account of threats to his life at the hands of terrorists and their sympathisers, or he had to shift his family and luggage or if his 11 years old son, along with other school children was attacked, while commuting in a bus, it did not, mean that he would have or should have lost control of his mind and indulge in abusing the Judges of this court by labelling them as terrorists and subversives. Accusing the High Court as being “infiltrated by subversives” and then going to single out “two Judges of the Srinagar Bench” and linking them with “such infiltration” could be nothing, but an act of a pervert mind, not being used to the normal niceties of expression and communication and totally oblivious of his duties and responsibilities as a reporter of men and matters, events and happenings, turmoils and disturbances at all. In a country totally wedded to democracy and rule of law, where freedom of expression is the most cherished ideal of social ethos, apart from being a guaranteed fundamental right under the Constitution, a corresponding obligation is not only always expected, but is actually cast upon this pillar of democracy, the fourth estate and its esteemed members, not only to respect functioning of other institutions, but to be fair and objective while reporting about events and the people and to use circumspection while dealing with sensitive issues. All these pious rules of the game, however, were thrown over-board by respondent No. 4. In our view, he showed scant respect not to the institution of judiciary but to the basic concept of fair play, decency and respect for the feelings of others. By his conduct, he not only exposed himself to criticism but the institution of press to ridicule,. We have no doubt in our mind (hat he did not deserve any leniency; on the other hand, we are convinced that he deserved a treatment which would be both harsh and exemplary.
11. Power to punish for contempt of court has always to be exercised sparingly, with great degree of caution as also with equal degree of magnanimity and grace. Merely because a court possesses the power to punish a person for committing its contempt does not mean that the power should invariably be exercised with haste, thoughtlessness, rashness or with anger coupled with any sense of revenge. Contrary to this approach, an, onerous responsibility is cast upon the court to deal with a contempt matter with highest degree of coolness, utmost compassion and objectivity. A court should not, rather should never, under any circumstance, loose its cool in dealing with a contemner, even in cases of proven gross contempt and should always try to strike a balance between the act of a contemner committing contempt and the quantum of punishment to be awarded, quite often, of course, not to be oblivious of the gravity of the act of contempt itself or the conduct and attitude of the contemner.
12. Even though, therefore, respondent No. 4 caused incalcuble damage and harm to the institution of judiciary and the reputation of the Judges of this court, we thought that a very mild punishment itself may be an indication from us to him that we did not mean to be very harsh upon him, we also thought that he might appreciate the magnanimity of the majesty of justice and the policy of Judges not to indulge in retribution. May be, he takes a cue from us, goes into a phase of repentence and tries to be careful in future.
13. We were told at the bar by Mr. Puri, learned counsel appearing for the respondents that respondent No. 4 was being defended by the management of the news paper and that he was still in their employment and that all expenses etc. of litigation for defending respondent No. 4 were being borne by the newspaper’s management. Keeping this in mind, we, therefore, had no hesitation in deciding to impose a fine of Rs. ten thousand because we knew that this fine would ultimately be paid by the management of the newspaper and for such an institution to part with an amount of Rs. ten thousand was a pittance. The fine part apart, once the conviction was recorded, we thought the natural corollary and consequence should also be imprisonment of the contemner for some time. May be, not the actual sentence of imprisonment but only the token part of it. We therefore, decided to award the sentence of imprisonment till the rising of the court (the court actually rose immediately after pronouncement of the order). This token punishment, we thought was necessary so as to inform the contemner that his apology had not been accepted and that he was actually convicted for committing contempt of this court.