In Re: Basanta Chandra Ghosh, … vs Unknown on 29 January, 1960

JUDGMENT

Misra, J.

1. This proceeding has been started against Sri Basanta Chandra Ghosh, an Advocate of this Court, to show cause why he should not be committed for contempt of Court in respect of an article published in the latest morning edition of the Searchlight, a Patna daily, in its issue of March 8, 1959. The
article was published under the caption “Recommendations of Law Commission”. The High Court took notice of the article and accordingly the above rule was issued on the 7th of April, 1959. The article deals with certain matters relating to the judicial administration of the High Court. The occasion for the article was the publication of the report of the Law Commission appointed by the Government of India whose report came out duly and was published in the press.

2. The writer, who described himself as “Basant Chandra Ghose”, made comments on the judicial administration of the High Court in various matters. In some of his comments he referred to the recommendations of the Law Commission with approval and in certain other matters he expressed his disagreement with the recommendations of the Law Commission but, on the whole, the article appeared to the High Court to be an independent animadversion on the judicial administration of the High Court with occasional reference to the recommendations of the Law Commission.

In the notice issued to him, the following passages from the article were specifically mentioned as constituting contempt of Court, specially the Patna High Court, although reference was made to the tone of the entire article as being derogatory to the dignity, independence and impartiality of its judicial administration. The impugned passages run thus :

“Very few in this country acquainted with the working of the judiciary would honestly differ from the report of the Law Commission on the unsatisfactory method of recruitment of Judges, the lowering of standard of judiciary and selection of Judges on consideration other than fitness as also with that part of the report which deals with the executive influence on the judiciary”.

” ……… The recommendation for preliminary hearing of Article 32 petition and of enlarging the powers of a Single Judge are retrogatory and cannot be accepted by independent thinking people in the profession. Our experience in some of the High Courts where most of the Writ applications are dismissed at the admission stage and where most of the Civil and Criminal Appeals including First Appeals are heard by Single Judges, has not been very happy and encouraging. More discouraging has been the innovation of hearing in full of Letters Patent Appeals ‘in admission’ (there being no provision for the same in law) and of Writ Applications with notice to the Advocate General and in full at the admission stage which have resulted in stultification of justice.

Instead of one there have been two full hearings in Article 226 matters in some of the High Courts, where these applications are heard with notice to the Advocate General at the admission stage, the result being in more cases than one statements made without affidavit even without instruction by the State Counsel are considered good grounds for rejection at the preliminary hearing, even though, at times it has been found that such statements were contrary to records.

We had expected the Law Commission to say something about the nature of the hearing of these petitions under Article 226 and Article 32 of the Constitution. The Supreme Court has recently condemned the procedure adopted in some High Courts in disposing of application for writ of certiorari without the records. It is surprising that the Law Commission was not aware that in some High Courts prayers for calling for records in application
for writ of certiorari or prohibition have been curtly rejected and what would have appeared from the records themselves have been disposed of on vague affidavits made on behalf of the State of Bihar on the simple ground that the facts are contested and disputed and, therefore, would require investigation and hence beyond the scope of writ application. If records were before the Court, there would have been no scope for such consideration and much of the time of the courts would be saved by stopping unnecessary opposition to such application”.

“The recent case of Babul Chandra Mitra, who is its victim, is an eye-opener to the profession where the High Court has repeatedly refused to consult even the Bar Council in the matter of enrolment and the Supreme Court refused to interfere with the High Court’s exercise of power in the matter without a hearing. Even a hearing, if at all, is done in closed chamber and the applicant, who is refused permission to practise, is not unlike the lawyer, who is removed from the roll, permitted to be heard in open court or even to be represented by a lawyer before the Judges in chamber. This might have been well in conformity with the design of the foreigner’s rule over this country, But to allow this to be continued over 9 years after the achievement of independence and adoption of a democratic Constitution is really a matter of shame and disgrace”.

“Of late arrears have become the bogey with some of the Judges and not only First Appeals of the value of Rs. 10,000/- are being heard by single Judges but they are heard more or less as Second Appeals and it is amusing to watch that a single Judge disposes of 4 or 5 First Appeals in one day without even looking into the printed paper book and the volume of evidence in the case, If the law has been amended today transferring appeals of the value of less than Rs. 10,000/- to the District Judge, the District Judge, it is hoped, will certainly not treat those First Appeals as Second Appeals.

The Single Judge First Appeals in the High Courts have really created a very interesting episode. The parties have lost their right of appeal on facts while the new appeals to the District Judges will be heard on facts and here will be second appeal to the High (Court). The present first appeals of the value of less than Rs. 10,000/-now pending before the High Court are being disposed of on pure question of law without consideration of facts. This has become worst part of the present tendency in administration of justice where the bogus (bogie ?) of clearance of arrears have over-weighed judicial temperament of Judges.”

3. Sri Basanta Chandra Ghosh appeared in due course but did not file any written statement showing cause against the notice. He stated in answer to a question by the Court that he was not prepared to make any statement beyond saying that he was not guilty. He was asked whether he was the author of the article in question inasmuch as the name of the author of the article published in the Searchlight did not describe him as Advocate or Advocate, Patna High Court, but simply as “Basant Chandra Ghose”. Sri Ghosh, however, refused either to admit that he was the author of the article or to say that he was not the author of the article and insisted on maintaining the stand that he would not say anything more than that he was not guilty.

A question of procedure, accordingly, came up for consideration to determine whether Sri Basant
Chandra Ghosh, Advocate, the alleged conteraner before the Court, was the author of the article which might be done either by the statement OB affidavit of persons from the relevant departments of the Searchlight or by examining them in Court to establish the authorship of the articles. Learned Advocate General suggested that it would be convenient to have some witnesses from the Searchlight examined who dealt with the article at various stages, particularly on the editorial side, so that if Sri Basant Chandra Ghosh thought it proper to cross-examine them he might have a chance to do so, of which he might otherwise be deprived if the statements were made on affidavit by the persons concerned. It is no doubt true that it was an extra-ordinary procedure and a favour shown to Sri Basant Chandra Ghosh considering his position as an Advocate practising in this Court, because in normal circumstances the matter could well have been disposed of on a mere statement on affidavit.

It is thus necessary to scrutinise the evidence of the witnesses examined in the case because the primary question to be answered would be whether Sri Basant Chandra Ghosh, Advocate who is being proceeded against, wrote the article in question.

4. The witnesses examined are Sri Sarvadeo Ojha, Chief Sub-Editor in the Searchlight Press; Sri Janardan Pandey, one of the Assistants attached to this Court in the Criminal Department; and Sri S. N. Sahi, Manager of the Searchlight Presa. Sri Sarvadeo Ojha has deposed that he read the article entitled “Recommendations of the Law Commission” appearing in the Searchlight in its issue of Sunday, the 8th March, 1959. He saw the manuscript of the article sent to the press for publication. He stated that the article purported to be signed by Basanta Chandra Ghosh was accompanied by a covering letter on a paper bearing the letter head of Sri Basanta Chandra Ghosh, Advocate, Patna High Court, and the article was also signed by him.

He admitted, however, that he did not recognise the signature of Sri Basanta Chandra Ghosh, He also admitted that in his office hundreds of letters were received daily. His further statement is that, next day after the publication, the editor of the Searchlight came to the office and asked him the following question : “Why did you not publish the correction sent by Mr. B. C. Ghose, Advocate, who had been to my place yesterday and told me that he had sent it? His answer was, “Sir, I received no correction of the sort. If I had received, I would have certainly published it”. Mr. Lalbihari Lal, on the request of Sri Basanta Chandra Ghosh who argued part of his case in person, was permitted to cross-examine the witnesses, who came to prove the authorship of the article. The cross-examination was directed to showing that Sri Sarvadeo Ojha’s memory could not be trustee to support his statement that there was a covering letter accompanying the article from the letter pad of Sri Basanta Chandra Ghosh, Advocate, Patna High Court.

It may be stated that the covering letter has not been produced and it was on that account that the cross-examining lawyer thought it fit to put the question to him as to whether he remembered the name of any other person from whom he received letter on the 7th of March. His answer was that he did not remember. The object of the cross-examining lawyer further was to elicit from the witness that he did not receive any other letter from Sri Basanta Chandra Ghosh and as such he
was not competent to say that the article was signed by Sri Basanta Chandra Ghosh. Advocate. It may, however, be safely held that Sri Sarvadeo Ojha has not been cross-examined to show that he had any animosity against Sri Ghosh.

It is difficult to imagine that he came to depose falsely against Sri Basanta Chandra Ghosh as a writer of the article. Argument has, however, been advanced that in the absence of the covering letter it is secondary evidence with regard to the contents of the letter which would not be admissible. The loss of the covering letter has not been established and it is, therefore, difficult to infer that the letter has been lost, in which case alone secondary evidence could be led to establish its contents. It is true no doubt that the learned Advocate General should have either asked the witness to product the covering letter, if available, or to say that it was lost.

It appears to me that what is being spoken to by this witness is not about the contents of the letter but only with regard to the name of the person which appeared on the letter pad and I see no reason to disbelieve him on that account, nor am I persuaded to hold that the evidence of this witness is not admissible with regard to the letter pad bearing the name of Sri Basanta Chandra Ghosh, Advocate, Patna High Court. Sri S. N. Sahi, Manager of the Searchlight Press, has been examined to prove the loss of the original article. He stated that he received the letter from the editorial staff asking him to trace out the original as, according to the practice prevailing in the Searchlight Press, after the article is edited by the chief sub-editor to remove any clerical or grammatical error and. after it is composed, the article for publication is sent to the management side where it is preserved for some time.

The witness has admitted that there was no hard and fast rule as to the period for which the original manuscript of any article for publication or any matter likewise is preserved, but the practice is that it is kept in a bundle for a month. He has stated that he had a search made on receipt of the letter from the editorial department for the original manuscript but it was not traceable. Documents have been brought on record to show that the Registrar made enquiries of the editor of the Searchlight for the production of the original manuscript and the editor had an enquiry made by the manager to trace it out. There is no reason, therefore, not to accept the evidence of Sri S. N. Sahi that the original manuscript is lost.

5. Apart from the view of law regarding the admissibility of the evidence of Sri Sarvadeo Ojha on the authorship of the article, I am inclined to hold that the strict rule of the Evidence Act may not be even applicable to a proceeding in contempt. I shall deal with this matter with regard to the procedure later on as Sri Ghosh has addressed a detailed argument to us with regard to the procedure to be followed in a contempt proceeding. As it is, however, if the view be correct that it is not necessary to examine the relevant witnesses and that it is enough to act upon their statements on affidavit, the Court would have no difficulty on the materials on record in drawing a conclusion that Sri Saravdeo Ojha, the chief sub-editor, gave a truthful statement when he stated that the original manuscript bearing the name of Sri Basanta Chandra Ghosh was accompanied by a covering letter bearing the name of Sri Basanta Chandra Ghosh, Advocate, Patna High Court.

Sri Ghosh has, however, urged that a distinction has to be made between a statement on affidavit, in which case the procedure of acting upon such statement might be correct, and the case of actual examination of a witness in a judicial proceeding when the strict provisions of the Evidence Act should be held to be applicable. In the present case, it might have been sufficient to take the statements of the persons from the Searchlight Press on affidavit to show that the article in question was written by him; but since witnesses were examined, the provisions of the Evidence Act cannot be excluded. In the absence, therefore, of proof of loss of the covering letter, secondary evidence of its contents should not be admitted.

It is no doubt true that it has been held in a series of decisions that when a witness is examined in a judicial proceeding, the examination of the witness and his statements must be subject to the rules of evidence laid down in the Evidence Act; and it is also no doubt true that the proceeding in contempt is a judicial proceeding. In my opinion, however, in view of the summary nature of the enquiry it will not be correct to apply the strict rules of evidence to this class of cases.

No authorities were brought to our notice in support of the contention that the provisions of the Indian Evidence Act should apply to the reception of materials against the contemner in a contempt proceeding which only necessitates that the proceeding must be based on fairness and justice to the respondent, and if there be anything on record to show, where a fact has to be established by proof, that there is a lacuna in the material which will throw a reasonable doubt on the existence of a state of facts, it must be construed in favour of the person proceeded against. Learned Advocate General brought to our notice the case of Sheoraj v. A. P. Batra, (S) AIR 1955 All 638, where the following passage occurs in answer to this contention at p. 640 :

“Reference may also be made to State v. Padma Kant Malviya, AIR 1954 All 523 (FB), to which I (Desai, J.) was a party. Law of evidence is a part of the law of procedure; if the contempt proceedings are not governed by any particular procedure, it follows that they are not governed by any particular law of evidence. Even if contempt proceedings are judicial proceedings within the meaning of Section 1, Evidence Act, they are outside the scope of Section 1 and have always been treated as such.”

If, therefore, it were possible for us to hold that failure to produce the covering letter is due to an attempt on the part of any one, concerned either with the Searchlight Press or the learned Advocate-General, to hold back this document, adverse inference should have been drawn. aS it is, however, considering the surrounding circumstances, I am satisfied that such an inference cannot be drawn and it cannot be held that Sri Ghosh has been in the least prejudiced as a result of the non-production of the covering letter.

It is, however, unnecessary to be definite on this part of the argument as the show cause petition filed on behalf of the editor, Pandit M. S. M. Sharma, and the printer and publisher, Sri A. K. Tewari, definitely mentions that they published the article in question because they were satisfied that although it related to matters concerning the High Court, the author being Sri Basant Chandra Ghosh, a counsel of standing in the High Court, he could be trusted to be conversant with the affairs of the
High Court and that what he was writing was authoritative. Apart from the evidence, therefore, of Sri Sarvadeo Ojha, the statements on affidavit by Pandit M. S. M. Sharma and Sri A. K. Tewari leave no manner of doubt that Sri Basanta Chandra Ghosh. Advocate, is the author of the impugned article.

It is not a case of an article written under nom de plume nor is it a case of an unsigned article. The name of the writer appears on the head of the article and in spite of abundant opportunity having been given to Sri Basanta Chandra Ghosh to admit or deny whether he wrote the article, he adopted a curious attitude of saying that he would not say anything more beyond this that he was not guilty. A plea, therefore, that the respondent is not guilty may be understood in more than one way. It may be that Shri Ghosh was the author of the article but what he wrote would not amount to contempt of Court. It may also mean that he was not the writer of the article although it might amount to contempt of Court. It may also mean that he was neither the author of the article nor did the matter contained in the article amount to contempt of court.

In the circumstances, there is no clear denial by him of the fact that he wrote the article in question. This matter having been brought to his notice, Sri Ghosh referred to Section 342, Code of Criminal Procedure, and contended that he was not bound to answer this question as to whether he wrote the article or not. Apart from the fact that the applicability in terms of Section 342, Code of Criminal Procedure, itself is not beyond doubt, as it has been repeatedly laid down that a proceeding in contempt is a quasi criminal proceeding and the Code of Criminal Procedure does not apply, Sri Ghosh is not right in relying upon the provisions of Section 342 of the Code of Criminal Procedure. He, however, insisted on his right to do so. Section 342 of the Code of Criminal Procedure, is in these terms :

“342. (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.

(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court and the jury (if any) may draw such inference from such refusal or answers as it thinks just.

(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(4) No oath shall be administered to the accused when he is examined under Sub-section (1)”.

The section itself lays down in explicit terms that although an accused person cannot be compelled to answer a question put to him by the Court, the Court is free to draw an adverse inference on a failure to answer such a question. It is unnecessary to refer to a number of decided cases on this point as the section itself is unambiguous on this
matter. It appears to me that there cannot be a clearer case than the present one where such an adverse inference may be drawn, because it is a simple matter within the knowledge of Sri Ghosh as to whether he wrote the article or not.

The Court did not ask him to incriminate himself by saying that he was the author of the article but only to state whether, in fact, he had written the article. It was open to him to make his stand clear by saying that he did not write the article which might be an exculpatory answer and not an incrimnatory answer. His failure, therefore, to answer the question either at the beginning of the proceeding or in course of his examination after the evidence was recorded must lead to the adverse inference that the article which bears the name of “Basant Chandra Ghosha” as the author was written by the respondent and it was not written by any other Basanta Chandra Ghosh.

It is also borne out by the intrinsic evidence in the contents of the Article where reference is made to the procedure followed in the Patna High Court and the State of Bihar showing that it has been written by a person connected with the Patna High Court. Taking into consideration, therefore, the evidence of Sri Sarvadeo Ojha, the affidavits filed by the editor and the printer and the publisher and the circumstances of the case, I am satisfied that Sri Basanta Chandra Ghosh, Advocate, Patna High Court, who has been proceeded against, has written “the article in question and his non-committal plea is of no avail to him on this point. This conclusion follows even leaving out of consideration the evidence of Sri Sarvadeo Ojha.

This procedure of approaching the case is also consistent with the view propounded in T.B. Hawkins v. D. P. Mishra, ILR (1949) Nag 640: (AIR 1952 Nag 259) to the effect that proceedings in contempt are in a special category and it is not necessary to follow the procedure for trial in a summons case following ILR (1942) Lah 411: (AIR 1942 Lah 105) (FB), In re, K. L. Gauba, Lahore, and referring to AIR 1945 PC 134, Parashuram Detaram v. Emperor. In AIR 1951 Nag 26, Wasudeoraoji Sheorey v. A. D. Mani, it has been held that where a contemner does not deny on affidavit an allegation made against him, he incurs a great risk in having the allegations against him acted upon as true. State v. Dasrath Jha, AIR 1951 Pat 443 also rules that the contemner is not an accused and he can file an affidavit and make a statement on oath,

6. Shri Gosh has argued, in the next place, that the High Courts in India, excepting those of Calcutta, Bombay and Madras, have not got the power to punish any one for contempt — a power which inhered in the three Presidency High Courts by virtue of their having inherited the jurisdiction of the Supreme Court established in these presidencies. A court of record as such has no jurisdiction to punish for contempt of its authority except by virtue of the common law of England under which alone English courts of record were invested with the summary jurisdiction to punish a person found guilty of contempt of court.

The other High Courts in India, even if they are courts of record, cannot be held to possess the power or jurisdiction to punish for contempt of court. Shri Ghosh has gone to the extreme limit of arguing that all these High Courts which, exercised the power from the date of their establishment were doing so in an illegal manner. It is curious indeed, that although the High Courts other than those of Calcutta, Bombay and Madras have exercised the jurisdiction without any challenge, they were and are according to Sri Ghosh, doing so without appreciating that they do not possess that jurisdiction. Since, however, the point has been raised, some discussion of the argument raised on this score is necessary. Shri Ghosh has referred in this connection to the case, In the matter of Amrita Bazar Patrika, 17 Cal WN 1253 at p. 1273.

That was a case in which the editor and manager Babu Matilal Ghosh, and the printer and publisher, Babu Tarit Kanti Biswas, of the Amrita Bazar Patrika, were noticed by the Chief Justice of the Calcutta High Court sitting with another Judge to show cause why they should not be committed for contempt of court for having published a series of articles in the Patrika commenting on the Barisal Conspiracy case which was pending before the Additional District Magistrate of Barisal at the enquiry stage. The point for consideration was whether the High Court of Calcutta had jurisdiction to commit a person charged with contempt of court in respect of a matter not pending in appeal before the Calcutta High Court but before an inferior tribunal subordinate to that High Court.

The origin of the contempt jurisdiction of the King’s Bench Division in England, the power of the Supreme Court of Calcutta in that regard, the power of the Calcutta High Court under its charter and its position as the inheritor of the Jurisdiction of the Supreme Court were gone into in an elaborate manner. Sri Ghosh relied upon the following observation:

“The relation between the Supreme Court and the inferior Courts of the Presidency Town does not rest on the adaptable foundation of the common law, but on the Acts and charter and it certainly is a question whether this Court so constituted did not crystallise these relations and the consequences to which they could give rise…. But however that may be, the courts and Magistrates which are indicated in Clause 21 are those, not of the Mofussil but of the Presidency town, and I am not aware of any statutory jurisdiction possessed by the Supreme Court over Mofussil Magistrates except as provided in 53 Geo, III, e. 155, or in relation to offences against them (if I may use that phrase) except to the extent indicated in Act 30 of 1841.

It is true that the High Court not only has superintendence over the courts of Mufassil Magistrates, but also is a court of Record; if I am right however in my reading of R. v. Davies, (1906) 1 KB 32, superintendence does not give jurisdiction, while the power of the King’s Bench to punish for interference with the lower Court did not arise from its being a court of record but from its common law powers as custos morum.

xxx x x

For the reasons I have expressed, I think the ground on which the Advocate General founded his claim in his opening speech fails. And I may here point out that this would hardly be a satisfactory basis for the jurisdiction invoked, as it would be of use only where the Common law prevails. A jurisdiction so founded would as far as I can see, foe of no vise to the High Court of Allahabad, to any High Court established under the recent Act, or to any of the Chief Courts, but only to the three High Courts which are vested with common law powers.”

It may, however, be stated that the point for consideration in that case was the power of the Calcutta High Court in relation to a contempt committed regarding a judicial proceeding in a court subordinate to that court. The view adopted by their Lordships was that the court had such jurisdiction
and the ratio decidendi was that a proceeding pending at one stage in the inferior court might come up in appeal before the Calcutta High Court and as such Sir Lawrence Jenkins observed that the Calcutta High Court being a court of record in all its jurisdictions had power to commit for any contempt in relation to any of those jurisdictions. The ground on which the conclusion was based was thus formulated by the learned Chief Justice:

“And I would go further and say that it might be cogently argued that there was this power even before the appeal was pending before this court, but to avoid any possibility of misunderstanding I again emphasize this could be on the ground that the contempt was of this Court and not of an inferior court.”

Their Lordships, however, did not make a conclusive pronouncement on that point. In any view, it was held that the Court had such jurisdiction to punish for contempt. The observation therefore, that the High Courts other than those of Calcutta, Bombay and Madras had no such authority is merely in the nature of an obiter dictum. Reference was made also to the case of Surendra Nath Banerjee v. Chief Justice and Judges of High Court at Fort Willian in Bengal, ILR 10 Cal 109 (PC). That is a decision of their Lordships of the Judicial Committee given on an appeal from the judgment of the Calcutta High Court.

It was in relation to an article published in the Bengalee on 28-4-1883. It contained an attack on the Judicial capacity and temperament of one of the judges of the Calcutta High Court upon which a notice was issued by that Court against the editor, Babu Surendra Nath Banerjee (as he then was) and the printer and publisher of the Bengalee to show cause why they should not be sent to prison or otherwise dealt with for contempt of court in having published that article containing, contemptuous and defamatory matters concerning a learned Judge, Mr. Justice Norris. The editor was sentenced to imprisonment for a period of two months.

The printer and publisher, however, was discharged considering the affidavit filed by the editor. Sir Barnes Peacock delivering the opinion of the Judicial Committee on the point of jurisdiction of the Calcutta High Court held that the High Courts in Indian Presidencies are superior Courts of Record and the offence of contempt and the power of the High Court for punishing it are the same as in Superior Courts of England.

Those powers which formed part of the common law were conferred upon the Supreme Courts when they were established in the Presidency Towns. Sri Ghosh’s contention is that the Judicial Committee in that connection laid down the law to the effect that only the High Courts in the Indian Presidencies were superior courts of record and were vested with the power to punish for contempt as a superior court of record and this was grounded on the jurisdiction of English Superior Courts of record in the common law.

It is, however, incorrect to infer from this that the other High Courts had no such authority, because Sir Barnes Peacock in that case had occasion only to consider the basis of the jurisdiction of the Calcutta High Court. The authority of this decision, therefore, cannot be invoked in support of the contention that the other Indian High Courts did not have such power.

7. In the case In the matter of Tarit Kanti Biswas, 21 Cal WN 1161: (AIR 1918 Cal 988) (SB), notice was issued to the printer and publisher along with the directors, manager and the secretary of the Company to show cause why they should not be committed for contempt in respect of two articles appearing in two issues of the Amrit Bazar Patrika relating to the constitution of the Bench of the High Court. There was a decision by Mukherjee and Cuming, JJ. against an appeal from a decision of the Subordinate Judge, 24 Parganas, relating to the power of the Calcutta Improvement Trust to acquire land compulsorily for the purposes of recoupment that it had no such power.

There was another decision by Greaves I. sitting on the original side of the High Court to the contrary. It was suggested that an attempt was being made to secure a Bench favourable to the point of view of the Chairman of the Calcutta Improvement Trust which might uphold the decision or Greaves J. as against the views expressed by Mukharjee and Cuming JJ. The reflections contained in the articles were taken notice of by the learned Chief Justice Sir Lancelot Sanderson, who in consultation with the other Judges, issued notice against the respondents. Questions which have been raised by Sri Basanta Chandra Ghose here were also raised therein. Woodroffe, J, disposed of the objections as follows:

“As regards jurisdiction 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 interest 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. St. Aubyn, (1899) AC 549 at p. 562.

The point of jurisdiction 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 poenam, 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 and (not to speak of other matters) no affidavits could have been filed by or against them. In fact both the offence as also the jurisdiction and procedure under which it is tried are sui generis.”

Mukharjee, J. also made the following observations with regard to the nature of the proceedings in contempt:

“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 two-fold attribute, proceedings in contempt may be regarded as anomalous in their nature, possessed of charcteristics 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”.

The printer and publisher, Tarit Kanti Biswas, was found guilty although the other persons charged with contempt were not proved to have been responsible for the publication and as such discharged. This case is important from the point of view of meeting many of the contentions raised by Sri Basanta Chandra Ghosh.

8. It appears to me, however, unnecessary to refer to certain other decisions inasmuch as in the case of Sukhdeo Singh v. Hon’ble C. J., S. Teja Singh and Hon’ble Judges of the Pepsu High Court at Patiala, AIR 1954 SC 186, their Lordships’ of the Supreme court had occasion to consider a similar argument. After having reviewed the cases bearing on the question, Vivian Bose, J. referred to the case In the matter of Sashi Bhusan Sarbadhicary, ILR 29 All. 95 (PC) and quoted the following from that:

“There is also no doubt that the publication of this libel 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.”

This was an appeal from a decision of the Allahabad High Court which was established in 1866 under the High Court Act of 1861 and duly constituted a court of record. The Privy Council held that the High Court of Allahabad as a court of Record had authority to punish for contempt in summary manner. Bose, J. also referred with approval to the case, In the matter of Habib, AIR 1926 Lah 1 (FB) and another Full Bench decision of the Allahabad High Court in In re Abdul Hasan Jauhar, AIR 1926 All 623 wherein also it was held that Allahabad High Court possessed such power. Bose J. thereafter referred to the enactment of the Contempt of Courts Act, 1926. Section 2 of which ran as follows;

“Subject to the provisions of sub-section 3, the High Courts of Judicature established by Letters Patent shall have and exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice, in respect of contempts of courts subordinate to them ‘as they have and exercise in respect’ of contempts of themselves”.

That Act was a recognition, therefore, of the existing jurisdiction in all Letters Patent High Courts to punish for contempt of themselves. This decision, therefore, is a settler on the point that all the High Courts in India as courts of record had the power to punish for contempt a person charged with that offence, and the power was not confined only to the three Presidency High Courts by virtue of their position as inheritors of the jurisdiction of the Supreme Court which derived that power from the English common law. The argument in the present context, however, appears to be more or less academic because Article 215 of the Constitution of India confers the jurisdiction to punish for contempt on all the High Courts. Article 215 runs thus:

“Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.”

It is also remarkable that Article 225 of the Constitution preserves all the powers and jurisdiction of the High Courts as they were vested in them prior to the Constitution and, even in that view, the power which has been exercised by all the
High Courts must be taken to attach to them as laid down in this Article.

9. Sri Ghosh has argued, in the next place, that under the provisions of the Indian Constitution the power of the High Courts to punish for contempt must be taken to be subject to enactment of a prescribed procedure for proceeding against a person charged with the offence in terms of Article 21 of the Constitution. In this connection, he has drawn our attention to Articles 13, 19 and 21 of the Constitution. He has referred
to Article 13 for the proposition that Clause (1) of this Article lays down that all laws in force
An the territory of India immediately before the commencement of the Constitution, in so far as
they are inconsistent with the provisions of Part III (Fundamental Rights), shall to the extent of such inconsistency, be void. Clause (3) lays down
in Sub-clause (a) that “law” includes any Ordinance, Order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. Article 19(1) Sub-clause (a) guarantees to all citizens the right of freedom of speech and expression, and Article 21 lays down that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Sri Ghosh’s argument is that the article published in the Searchlight is in the nature of the exercise of the Citizens’ right to freedom of speech and expression inasmuch as the writer had the privilege to say what he had to say……… about the judicial administration o£ the High Court. So far as Article 19 is concerned, however, Clause (2) thereof runs as follows:–

“Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

It is obvious, therefore, that any law in relation to contempt of Court shall not be hit by Clause (1) of the Article. Since there is the law of contempt embodied in the Contempt of Courts Act, 1952, which has taken the place of law of contempt embodied in the Contempt of Courts Act, 1926. according to which punishment is limited, Article 19(l) (a) is of no assistance to Sri Ghosh. There is no substance also in the argument based on Article 13. Whatever might otherwise be said with regard to the law of contempt enacted by the Indian legislature the provisions referred to above in Clause (2) of Article 19 were put in the Chapter on Fundamental Rights in the Indian Constitution and hence this argument is not available to Sri Ghosh.

There is no inconsistency of any kind between the Contempt of Courts Act and Article 13, inasmuch as Article 19(2) forms part of Part III of the Constitution itself. The question of inconsistency, therefore, between a law on a subject for which no exception has been provided in the Chapter on Fundamental Rights and the subject matter of this part does not even remotely arise in connection with the law of contempt as in Clause (2) of Article 19 itself it has been provided that a law relating to contempt of Court which may have been in the nature of a restrictive provision on any of the rights incorporated in Clause (1) shall not be held to be bad as constituting a violation of the Fundamental Rights guaranteed under Article 19(1). Sri Ghosh has, however, stressed his argument with regard to Article 21 of the Constitution with reference to the procedure followed in contempt proceedings.

He has urged that the Contempt of Courts Act, 1952, in Section 4 provides for the punishment, by simple imprisonment up to the maximum of six months and a fine of two thousand rupees (corresponding to Section 3 of Act 12 of 1926). This part of the penal section which relates to punishment by fine may not be hit by Article 21, but in so far as it lays down that a person charged with contempt of Court, if found guilty; may be sentenced to imprisonment, which is in the nature of deprivation of personal liberty, it is clearly covered by this section. Hence, this can only, be done according to the procedure established by law. There is no procedure established by law because the Contempt of Courts Act (both of 1926 and 1952) only provides for the existing procedure and practice.

10. There was no procedure whatsoever laid down by the Legislature prior to 1950 when the Constitution of India was promulgated. The procedure was a summary one. There was no fixity about it and the accused person did not have the advantage of any enacted procedure whatsoever. It might be justified as valid prior to 1950 but, in view of Article 21, the Contempt of Courts Act of 1952, which has in substance incorporated the provisions of the Contempt of Courts Act, 1926, on the matter of practice and procedure, must be held to be bad law. Article 21 has been the subject matter of judicial consideration in the well-known case of A.K. Gopalan v. State of Madras, AIR 1950 SC 27 in which their Lordships have gone into an exhaustive discussion as to what is meant by the phrase “according to procedure established by law”. Sri Ghosh has drawn our attention to the views of the various learned Judges constituting the Bench.

It seems to me, however, unnecessary to refer at length to Gopalan’s case, AIR 1950 SC 27, as a similar argument was advanced before a Bench of the Bombay High Court in the case of State of Bombay v. Mr. P., AIR 1959 Bom 182. It may be stated that the passages brought to our notice by Sri Ghosh are identically the same passages which were pressed for consideration before the learned Judges of the Bombay High Court and I am in complete accord with the opinion expressed by their Lordships. That case provides an answer to Sri Ghosh’s argument and which is that the expression “procedure established by law” contemplates a procedure which was followed by the various High Courts prior to the passing of the Indian Constitution by the Constituent Assembly and includes summary procedure based on fairness and justice without the trammels of technicality and there is nothing invalid in the practice and procedure followed in matters of contempt on account of Article 21 of the Constitution. I may also refer in this connection to the case of Sukhdeo Singh, AIR 1954 SC 186 at p. 190 referred to above. Bose, J. on this aspect has observed as follows :

“We hold, therefore, that the Code of Criminal Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. This rule was laid down by the Privy Council in In re Pollard, (1845) 2 P. C. 106 at p. 120, and was followed in India
and in Burma: Vallabhdas Jairam v. Narronjee Permanand, ILR 27 Bom 394 at p. 399 and Ebrahim Mamoojee Parekh v. Emperor, AIR 1926 Rang 188 at pp. 189-190. In our view that is still the law.”

In the case of AIR 1954 All 523, which is a Full Bench decision, it was held that an alleged contemner is not an accused person within the meaning of Section 5 of the Indian Oaths Act and he is not accused of an offence within Article 20(3) of the Constitution of India.

He could file an affidavit and can be cross-examined on it. The same observation was made in the case of Homi Rustomji Pardivala v. Sub-Inspector Baig, AIR 1944 Lah 196 (SB). The power of the High Court to punish for contempt the writer of an article in the newspaper was considered by Harries, C.J. and Dhavle, J. in the case of Superintendent and Remembrancer of Legal Affairs, Bihar v. Murli Manohar Prasad, AIR 1941 Pat 185,

11. In the case of Brahma Prakash Sharma v. State of Uttar Pradesh, AIR 1954 SC 10, it was laid down that the Courts undoubtedly have the power to punish a person guilty of scandalising the Court. The only safeguard laid down in this was that proceeding for this species of contempt should be used sparingly or with reference to the administration of justice; but if it is established that a writing tends to interfere with the administration of justice it is enough to hold that it comes within the ambit of contempt of Court.

The matter arose in connection with a resolution passed by the Executive Committee of the District Bar Association at Muzaffarnagar, copies of which were forwarded to the District Magistrate and other officers in which reflection was made upon the conduct of a Judicial Magistrate of Muzaffarnagar and others”. On a construction of the resolution, it was held that the resolution was in the nature of a representation made by the appellants and the effect was not to scandalise the Court or to impair the administration of justice. Affidavits in that case, however, were filed on behalf of the appellants stating their point of view and accordingly it was held that contempt, if any, was only of a technical character and that explanation should have been accepted.

In the present case, Sri Basanta Chandra Ghosh has not cared to file even an affidavit nor to make any statement, Sri Ghosh, on whose behalf Sri S. N. Datta wanted to raise a contention with regard to good faith, also cannot avail himself of that argument because Sri Ghosh never explained his point of view unlike the appellants in the above case, where an affidavit was filed by the persons passing the resolution to explain what their point of view was. Reference may also be made in this connection to the following cases which hold that the High Court has the power to punish for contempt the contemner for any libel published in a newspaper on a Judge or Judge of the Court calculated to lower the prestige and authority of the Court. In the matter of Tushar Kanti Ghosh, ILR 63 Cal 217: (AIR 1935 Cal 419) (FB); The Crown v. A. Rafique, AIR 1950 Sind 1 (F. B.); Ambard v. Attorney-General of Trinidad and Tobago, AIR 1936 P. C., 141; Debi Prasad Sharma v. Emperor, AIR 1943 P. C. 202; AIR 1942 Lah 105 (FB).

12. In that view of the matter, it does not appear to me to be necessary even to refer to the large number of English and American cases which Sri Ghosh has cited before us.

13. I may, however, deal with some of them as Sri Ghosh has placed them before us to support his contention that a different view of the law should be taken as it is consistent with the altered legal
position under the Indian Constitution. With regard to the summary jurisdiction of the English Courts, Sri Ghosh has referred to the decision in Almon’s case in the Notes of Justice Wilmot which were never delivered. In that case John Almon, a bookseller, was attached for publishing a libel against Chief Justice Lord Mansfield, in Hilary Term 1765. The Notes of Justice Wilmot were prepared in that connection. The judgment, however, could not be delivered as the learned Judges discovered that the rule nisi had been entitled “The King v. Wilkes” instead of “The King v. Almon”. On account of this technical irregularity and as-the counsel for the defendant, Serieant Glynn, refused to amend, the proceeding had to be abandoned, and the ministry having changed, another rule nisi was not further proceeded upon by the Crown.

The Notes, however, of Justice Wilmot which were published after the Judge’s death (37 years after the proceedings) by his son show that the Notes were prepared for delivery, copied fair and corrected with the Judge’s own hand. In that case which, has put on an established foundation the summary power of the English Courts to punish for contempt even in respect of matters not in presence of the court but outside the Court, such as the libellous statement published in the newspaper; the observation of Justice Wilmot runs thus:

“The power which the courts in Westminster Hall have of vindicating then own authority is coeval with their first foundation and institution; it is a necessary incident to every court of justice, whether of record or not, to tine and imprison for a contempt of the court, acted in the face of it, Sparks v. Martin, (1668), 1 Vent 1, and the issuing attachments by the Supreme courts of justice in Westminster Hall for contempts out of court stands upon the same immemorial usage as supports the whole fabric of the common law; it is as much the lex terrae and within the exception of Magna Carta as the issuing any other legal process whatsoever. I have examined very carefully to see if I could find out any vestiges or traces of its introduction but can find none.

It is as ancient as any other part of the common law; there is no priority or posteriority to be discovered about it and therefore (it) cannot be said to invade the common law, but to act in an alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society; And though I do not mean to compare and contrast attachments with trials by jury, yet truth compels me to say that the “mode of proceeding by attachment stands upon the very same foundation and basis as trial by juries do” — immemorial usage and practice (Wilmot’s Notes. 254).”

14. In spite of the dislike of the English people of this procedure, attempts made now and then by way of legislation failed, such as in the year 1883, 1892, 1894, 1896 and 1908. Even strongly worded resolution of the House of Commons passed in the year 1906 to the effect

”that the jurisdiction of Judges in dealing with contempt of court is practically arbitrary and unlimited and calls for the action of Parliament with a view to its definition and limitation”

and repeated in 1908 Hansard, 4th series, vol. 155, 614 (April 4, 1906); vol. 185,, 1432 (March 10, 1908) has not resulted in anything concrete, (Quoted in Contempt of Court by Sir John Fox at p. 3.)

15. So far as the English Law of Contempt is
concerned, which differs in this respect from the
American system, it was held in the case of R. v.

Gray, (1900) 2 Q.B. 36 that the publication in the
newspaper of an article containing scurrilous abuse
of a Judge with reference to his conduct as a Judge in a judicial proceeding which has terminated is a contempt of Court punishable by Court of summary jurisdiction. In that case also an affidavit was sworn by the contemner and it was held that any act done or writing published calculated to bring a Court or Judge of the Court into contempt, or to lower his authority, is a contempt of Court.

16. In the case of National Telephone Co. Ltd. v. Postmaster-General, 1913 AC 546 the Court of the Railway and Canal Commission to whom a dispute was to be referred between the Telephone Company and the Postmaster-General as to the value of the plant to be sold to the Postmaster-General, was held to be a Court of record. The expression “Court of record” has been thus defined in Wharton’s Law Lexicon

“to those whose judicial acts and proceedings are enrolled on parchment, for a perpetual memorial and testimony; which rolls are called the Records of the Court, and are of such high and supereminent authority that their truth is not to be called in question. Every court of record has authority to fine and imprison for contempt of its authority.”

It is true, no doubt, that in India there is no distinction between the superior Court of record and the inferior Court of record as is maintained in English Law, because in India it is only the High Courts which are recognised as Courts of record; but the Courts subordinate to the High Court in India have been vested with the power to punish for contempt committed in presence of the Court provided for under Sections 480 to 487 of the Code of Criminal Procedure so that a distinction sought to be made between the superior and inferior Courts in English Law, and the absence of such a distinction in Indian Law, and the further fact that subordinate Courts in India have not been considered as Courts of record does not make any substantial difference as the powers possessed by the inferior Courts of record in England with regard to punishing for contempt committed in presence of the Court are exercised by the Indian Courts by virtue of the statutory powers conferred upon them. Therefore, there is no substantial difference between the procedure in this country and that prevailing in England.

17. In Constitutional Law by Hood Phillips, the position is stated thus :

“Criminal contempt of Court is punishable in the ordinary way by fine and imprisonment. Superior Courts may also impose such punishment summarily by attachment and committal, and any Court of record can punish contempt committed in face of the Court by immediate fine and imprisonment. An inferior Court of record has in general no jurisdiction to punish contempt summarily unless it is committed in face of the Court. The Queen’s Bench Division has power to protect inferior Courts against contempt to the extent that they cannot protect themselves.”

An identical provision has been made in the Contempt of Courts Act, 1926, and the High Court has been given the power to punish for contempt of Court any person guilty of the offence in respect of the Court subordinate to the High Court in the same manner as if it were its own contempt: vide Section 2 of the 1926 Act. A reference was made to the case In the matter of Special Reference from Bahama Islands, 1893 AC 138. In that case a scurrilous attack was made in a newspaper named “Nassau Guardian” of the Bahama Islands upon the Chief Judge of the Islands and he was committed. Sri Ghosh has referred to this case for the proposition that that case is an authority to show that a writing which could have been made the subject
matter of proceeding for libel could not be regarded as constituting an obstruction or interference with the course of justice or the due administration of justice and, therefore, it did not constitute a contempt of Court.

It may be stated that the said view was laid down on a construction of the matter published in the “Nassau Guardian” and it is too late in the day for Sri Ghosh to argue that the English Courts do not possess the power to punish a person guilty of scandalising the Court as the authorities cited above will show. In the case of R. v. Editor of New Statesman, (1928) 44 TLR 301, a rule was issued on Mr. Sharp, the editor of the New Statesman for having published in his paper (the New Statesman) on January 28, 1928, a comment reflecting upon the judgment of Mr. Justice Avory in the libel action brought by the editor of Morning Post against Dr. Marie Stopes which was characterised as a miscarriage of justice. Reference was made in that case also to the observation of Lord Russell in (1900) 2 Q.B. 36 who approved the observation of Lord Hardwicke on Contempt of Court relating to an attempt to scandalise the Court. Following observation of Lord Russell was quoted:

“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….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.”

Apology tendered, however, was accepted in that case.

18. It may, however, be pointed out that the power of committing to prison exercised by the Judges in England extends to an indefinite duration unlike the Indian Contempt of Courts Act which has set limits to the exercise of such power; and whatever criticism might be levelled against the unlimited, arbitrary power given to Judges in England by public men and citizens of England, that cannot be made applicable to Indian conditions on account of the provisions of the Contempt of Courts Act of 1926 and the present one of 1952. As for the United States of America, no doubt, Judges have been given the power to punish for contempt summarily, only those acts which amount to an offence and have been committed in face of the Court and acts in the nature of contempt of Court committed in absentia of the Judges have been made the subject matter of regular indictment and are triable by jury.

18a. Sri Basanta Chandra Ghosh has drawn our attention to the case of Pennekamp v. Florida, (1945) 328 US 331 (372): 90 Law Ed. 1295 in support of the proposition that in the United States of America contempt of Court which is committed not in presence of the Court, and which has not the effect of disturbing the proceedings when they are going on, is not punishable by the Court in its contempt jurisdiction. Any publication in the newspaper article reflecting upon the dignity of the Court or the administration of justice cannot be punished except by way of an action for defamation by the Court concerned if it is a reflection on the judicial honour and integrity of the Court, and not in exercise of the jurisdiction to punish for contempt of Court. That was a case, however, where the editor was arraigned on the charge of publishing an article together with a cartoon which pictured the Judge as a robed compliant figure on the bench tossing aside formal charges to hand a document marked
“Defendant dismissed” to a powerful figure close at his left arm and of an intentionally drawn criminal type, while at the right a futile individual labelled public interest” vainly protested. The associate editor of a newspaper of general circulation with the title, The Miami Herald, was convicted by the Circuit Court and the conviction was upheld by the Supreme Court of Florida on the view that the article had the effect of bringing into disrepute the administration of criminal justice in certain cases then pending before the Court.

A writ of Certiorari was granted to review the petitioners’ contention that the editorial did not present a clear and present danger of high imminence to the administration of justice by the Court or Judges who were criticised and, therefore, the judgment of contempt was invalid as violative of the petitioners’ right of free expression in the press. In this case the position was scrutinized afresh in the light of the decision in the leading case on the point of the Supreme Court of the United States of America, being Bridges v. California, (1941) 314 US 252: 86 Law. Ed. 192 which was delivered three years prior to this judgment, sometime in 1943.

This case clarified further the bounds of legitimate criticism by a newspaper of the administration of justice. Mr. Justice Reed, who delivered the judgment of the Court, held on the facts of the case that the criticism could not be regarded as constituting a danger to fair judicial administration, nor did this writing constitute a ground of clearness and immediacy necessary to close the door of permissible public comment. It was held that the criticism with regard to the charge of indictment having been returned by the Judge to the State Attorney’s office for a re-indictment which appeared as unjustified to the editor did not constitute a danger to the administration of justice. As Justice Reed observed :

“What is meant by clear and present danger to a fair administration of justice? No definition could give an answer. Certainly this criticism of the Judges’ inclinations or actions in these pending non-jury proceedings could not directly affect such administration. This criticism of their actions could not affect their ability to decide the issues. Here there is only criticism of judicial action already taken, although the cases were still pending on other points or might be revived by rehearings. For such injuries, when the statements amount to defamation a judge has such remedy in damages for libel as do other public servants”.

Further, it was observed:

“As we have pointed out, we must weigh the impact of the word against the protection given by the principles of the First Amendment, as adopted by the Fourteenth, to public comment on pending court cases”.

Mr. Justice Frankfurter, who agreed in a separate judgment, entered into an elaborate discussion of the border zone between the right of free criticism of public matters guaranteed to the press in terms of freedom of utterances and the absolute necessity of protecting the course of judicial process from interference by means of a publication bearing on a public litigation. After an examination of the facts it was held that

“the decisive consideration is whether the judge or the jury is, or presently will be, pondering a decision that comment seeks to affect. Forbidden comment is such as will or may throw psychological weight into scales which the Court is immediately balancing”.

Then it was held that there was no such clear and immediate danger to the fairness of trial and accordingly the judgment of the Supreme Court of Florida, Circuit Court, was reversed. Apart from the fact that this was a case which concerned comment on a pending litigation, which does not arise for consideration in the instant contempt proceeding before us, some kind of criticism in the American system is open to the newspaper and public men because the judiciary there is elective in a good many States. As Mr. Justice Rutledge observed:

“Courts and judges therefore cannot be put altogether beyond the reach of misrepresentation and misstatement. That is true in any case, but perhaps more obviously where the judiciary is elective, as it is in most of our states, including Florida”. The reason why comparatively wider scope is given to criticism in the public press in the American jurisprudence is because of this factor of an elective judiciary. Nor is it correct to say on the strength of this case that defamatory matters in American system can never be made the subject matter of contempt jurisdiction. As was observed by Mr. Justice Frankfurter in the above case at page 1310,

“Not all defamatory matter can amount to contempt of Court …… Whether defamatory matter
amounts to contempt in any particular case is a question in each case of fact, of degree and of circumstances”.

It is clear, therefore, that some defamatory matter may amount to contempt of Court even in the American system, provided it has the effect of influencing the judgment of the Court which has rightly been characterised as presided over by human beings who, with their highest standard of objective analysis, may yet be open to suggestions made in the public press and in that case the trial may degenerate into what is called newspaper trial. The well-known Bridges’ case, (1941) 314 US 252: 86 Law. Ed.. 192 was also a case of a comment in a newspaper on a pending proceeding.

There also it has been laid down that the possibility of a disorderly and unfair administration of justice as a result of the public criticism of the acts of a Judge in a litigation which is still pending, justifying impairment of a constitutional right of freedom of speech and of the press must be determined according to the publication and circumstances involved in the particular case. In the case of Craig v. Harney, (1946) 331 US 367 : 91 Law Ed 1546, which is more to the point, it was held:

“The vehemence of the language used in newspaper publications “concerning a Judge’s decision is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, nor merely a likely, threat to the administration of justice”.

It was held further,

“But a Judge may not hold in contempt one ‘who ventures to publish anything that tends to make him unpopular or to belittle him…….’.”

It may be stated that this observation was also made on account of the elective system of judiciary in the United States. The special conditions prevailing in America and the restrictions on the contempt jurisdiction of the Courts have been considered in the case of Nye v. United States, (1940) 313 US 33 : 85 Law Ed 1172, where Justice Douglas traced the history as follows :

“The question is whether the conduct of petitioners constituted ‘misbehaviour …….. so near’
the presence of the court ‘as to obstruct the administration of justice’ within the meaning of Section 268 of the Judicial Code, 28 USCA Section 385. That section derives from the Act of March 2, 1831 (4 Stat. at L. 487, Chap. 99). The Act of (September 24)
1789 (1 Stat. at L. 73, 83, Chap. 20) provided that courts of the United States ‘shall have power…….

to punish by fine or imprisonment, at the discretion of said Courts, all contempts of authority in any cause or hearing before the same’. Abuses arose, culminating in impeachment proceedings against James H. Peck, a federal district judge, who had imprisoned and disbarred one Lawless for publishing a criticism of one of his opinions in a case which was on appeal. Judge Peck was acquitted. But the history of that episode makes abundantly clear that it served as the occasion for a drastic delimitation by Congress of the broad undefined power of the inferior federal courts under the Act of 1789.

The day after Judge Peck’s acquittal, Congress took steps to change the Act of 1789. The House directed its Committee on the Judiciary to inquire into the expediency by defining by statute all offences which may be punished as contempts of the Courts of the United States, and also to limit the punishment for the same’. Nine days later James Buchanan brought in a bill which became the Act of March 2, 1831. He had charge of the prosecution of Judge Peck and during the trial had told the Senate: ‘I will venture to predict, that whatever may be the decision of the Senate upon this impeachment, Judge Peck has been the last man in the United States to exercise this power, and Mr. Lawless has been its last victim’. The Act of March 2, 1831, ‘declaratory of the law concerning contempts of court’, contained two sections, the first of which provided :

‘That the power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of courts, shall not be construed to extend to any cases except the misbehaviour of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehaviour of any of the officers of the said Courts in their official transactions, and the disobedience or resistance by any officer of the said Courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts.'”

 

19-20. In 1918, the Supreme Court of United States of America in Toledo Newspaper Co. v. United States, (1918) 247 US 402 (418, 419) : 62 Law Ed 1186, took the view that the Act of March 2, 1831
  
 

"conferred no power not already granted.     It was intended to prevent the  danger by reminiscence of what had gone before of attempts to exercise a power not possessed, which ....... had been
sometimes done in the exercise of legislative power." 
 

This observation was explained by the Court in Nye’s case (1940) 313 US 33 : 85 Law Ed 1172 (supra), and it was held that by this Act the previously undefined power of the Court was substantially curtailed and that the words “so near thereto” occurring in the Judicial Code Section 268, 28 USCA S. 385, mean geographical proximity and not casual connotation. In Bridges’ case (1941) 314 US 252 : 86 Law Ed 192, cited supra, where also the history of the peculiar conditions in America has been traced, it has been stated that the view that the power of the Judges to punish by contempt out of court publications tending to obstruct the orderly and fair administration of justice in a pending case was deeply rooted in English Common Law at the time the Constitution was adopted, was a debatable proposition. It was observed further, .

“In any event it need not detain us, for to assume that English common law in this field became ours is to deny the generally accepted historical belief that ‘one of the objects of the Revolution was to get liberty of speech and of the press’.”

Reference was made thereafter to the words of James Madison, the leader in the preparation of the first amendment, which later on came to be embodied in the Bill of Rights, relating to the first amendment of the Constitution, when he stated that

“the state of the press ……….. under the
common law, cannot ………….. be the standard
of its freedom in the United States.”

It was on that background that the power of the American Courts to punish for contempts was considered in Bridges’ case, (1941) 314 US 252 : 86 Law Ed 192, by the majority. The first amendment in regard to the guaranteed freedom of speech was construed accordingly to mean that it could be no part of the power of the Court in America to punish any expression of opinion which might appear to constitute disrespect for the judiciary, and that it would not be consistent with the background and history of the first amendment. In India, however, there is nothing like the Act of 1831, Section 1 of which has been quoted above, nor in India is there any attempt to do away with the British conception of the power of the law courts. I may incidentally state that” even the Due Process clause of the fourteenth amendment of the American Constitution has not been incorporated in the Indian Constitution,

It must accordingly be held that however interesting the American law regarding the power of the law courts to punish for contempt may be, it is not an apt analogy to govern the powers of the Courts in India. In fact all law courts in one form or another must have the authority for their proper functioning and it has been observed that all legal systems which have reached the stage of maturity have developed closely analogous forms for securing and protecting the administration of justice.

Roman magistrates had the powers known as coercitio and any magistrate possessed of imperium had limitless powers in this regard. But in the Anglo-American system this conception has developed most, and as has been mentioned by the writer of the article on Contempt of Court in the Encyclopaedia of the Social Sciences,

“In English law the extensive invocation of contempt powers may be laid to the great procedural accident which resulted in the development of a dual system of courts and hindered the extension of the doctrine of default. Indeed, it is to the proliferation of equity orders by the chancellor in his struggle with the common law courts that Blackstone attributes the multiplication of contempts in English law. The contempt power was necessary to harmonize the conflicts arising from the strange anomaly of the dual system.”

21. In the case of Harry Sacher v. United States of America, (1951) 343 US 1 : 96 Law Ed 717, the persons charged with contempt of Court were the attorney of certain party leaders and a layman acting as his own attorney. The matter arose on a petition for the writ of certiorari in the Supreme Court of the United States against a decision of the United States Court of Appeals which affirmed the order of the United States District Court for the southern district of New York adjudging the attorney guilty of contempt. It relates to the interpretation of Rule 42 of the Federal Rules of
Criminal Procedure which deals with criminal contempt. Rule 42 (a) provides for summary punishment of a criminal contempt by the Judge in whose presence the offence is alleged to have been committed and Rule 42 (b) deals with the punishment in such cases by a Judge other than the accusing Judge. It was held :

“Summary punishment always, and rightly, is regarded with disfavour, and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes. But the very practical reasons which have led every system of law to vest a contempt power in one who presides over judicial proceedings also are the reasons which account for it being made summary. Our criminal processes are adversary in nature and rely upon the self-interest of the litigants and counsel for full and adequate development of their respective cases. The nature of the proceedings presupposes, or at least stimulates, zeal in the opposing lawyers”.

Further, it was also held :

“Rule 42 obviously was intended to make more explicit ‘the prevailing usages at law’ by which, the statute has authorized punishment of contempts” .

The argument, therefore, that the power of summary punishment is not available to the American Judges is incorrect and the further argument that in the American system whenever contempt is committed not ex facie of the Judge but otherwise, it is not punishable by a summary procedure unless it constitutes a present and imminent danger to a cause pending before the Court, is due to the special provisions of Rule 42 which, are incorporated in Clauses (a) and (b) of that rule and other legislative enactments. The power of summary punishment has been held not to transgress the right of free speech guaranteed to the American citizen under the first amendment of the Constitution and it is held further not to be in conflict with the Due Process clause incorporated in the fourteenth amendment of the Constitution. It was observed in this case at p. 737 by Mr. Justice Frankfurter:

“Summary punishment of contempt is concededly an exception to the requirements of Due Process. Necessity dictates the departure. Necessity must bound its limits.”

Mr. Justice Jackson, however, who delivered the majority opinion of the Court, held, as I have mentioned above, that such a power exists and is not in conflict with the Due Process clause. If it is so in America, it can be contended with still less force that in India the jurisdiction to punish for contempt summarily is in conflict with the fundamental right of freedom of speech guaranteed in Article 19 of the Constitution of India, inasmuch as not only there is no Due Process clause in our Constitution but, further, that the power to punish for contempt has been specifically held not to be a violation of the liberties granted to the citizen by way of fundamental right in Article 19 of the Constitution as stated above.

22. In the case of Offutt v. United States. (1954) 348 US 11 : 99 Law Ed. 11 Rule 42 of the Federal Rules of Criminal Procedure was the subject-matter of consideration and it was reiterated that the reason for the extraordinary power to punish criminal contempt in summary proceedings is that the necessities of the administration of justice require such summary dealing with obstructions to it, being a mode of vindicating the majesty of the law, in its active manifestation, against obstruction and outrage.

The claim for a jury trial in this case was overruled and it was held that on interpretation of

Rule 42 it was desirable that that case should be tried by a Judge other than the one in whose presence contempt was committed. In view of the provisions of Rule 42, this case has no bearing on the law in India.

23. Sri Ghosh has urged that the English Procedure with regard to the summary jurisdic of the Judges of King’s Bench Division or of a statutory tribunal should not be applicable to Indian conditions and law in India on the point of contempt but it should be on a par with the law in America, as India having a written Constitution like the United States of America should follow the same salutary practice.

That, however, is a matter for the Legislature to decide and legislate upon and the argument is wholly out of place in a court of law. It has already been stated that the view that the power of the Court to punish for contempt in America circumscribing it within limits, which are unknown to English Law, has been influenced by its own peculiar conditions and the history of it is traced in the cases of Nye (1940) 313 US 33: 85 Law Ed. 1172 and Bridges, (1941) 314 US 252; 86 Law Ed. 192 cited supra. What holds good, therefore, of the position in that country will not apply in the British or in the Indian system where there is no elective judiciary, or, in any case, there is no statute defining and curtailing the Court’s jurisdiction in the matter. Indian Courts of record have been put on the same footing as English Courts of record.

There is no definition of Courts of record given in the Constitution of India for the obvious reason that the expression ”Court of record” in India was understood in the same sense in which it was understood in England and Article 372 (1) of the Constitution provides as follows:

“Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.”

The mere fact, therefore, that in India there is a written Constitution like the Constitution of the United States of America or that there is a chapter on Fundamental Rights corresponding to the same in the Constitution of the United States of America, will not make any difference and it is British system, upon which Indian Constitution is modelled and the British precedents and practice in the matter of contempt of Court Jurisdiction which will govern the position and not the American system which is based on a different concept of jurisprudence in this matter on account of its own peculiar conditions.

24. Sri Ghosh has drawn our attention to a decision of the Bombay High Court in support of the proposition that the law in force in the territory of India immediately before the commencement of the Constitution refers to enacted law and not customary law, nor to any matter of procedure which was not enacted by a Legislature : vide State) of Bombay v. Narasu Appa, ILR (1951) Bom 775: (AIR 1952 Bom 84) as also State of Bombay v. Heman Santlal, AIR 1952 Bom 16 (25), where the same view has been laid down. Inference, therefore, should be that the summary jurisdiction of the High Court to punish for contempt was not preserved by Article 372 inasmuch as explanation (1) itself defines the expression “law in force” in that Article as including a law passed or made by Legislature or other competent authority in the territory of India before
the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in any particular area.

It is, however, clear that the argument sought to be built upon this provision by Sri Ghosh is without substance as the explanation does not lay down that the law in force shall mean a law passed or made by the Legislature, but the word used therein is “included” which is evidently a wider term than the word “mean”. The distinction between the use of the two words “mean” and “include” has been recognised in several decisions and is of frequent occurrence in the various statutes : vide Province of Bengal v. Hingul Kumari Law, AIR 1946 Cal 217 (224). The Constituent Assembly chose the word “included” in this explanation and not the word “mean”, so that Article 372, Clause (1), is obviously of a more comprehensive character than what is specifically mentioned, in the explanation. Were it not so, all the personal laws of the Hindus and Muslims in this country which were not enacted by the Legislature, or the customary law prevalent throughout the length and breadth of this country, in various forms would not have been valid law. Article 372(1) provides for keeping intact the entire body of law which was valid law prior to the enforcement of this Constitution, unless of course the same would be in conflict with any of the provisions of the Constitution.

In my opinion, therefore, Article 372(1) read with the explanation, upon which Sri Ghosh placed some reliance, itself is a pointer in the direction of summary jurisdiction of the High Courts to punish for contempt as having been kept intact. Reference may also be made in this connection to the following decisions: S. Gopalan v. State of Madras, AIR 1958 Mad 539 (543); Naresh Chandra v. Sachindra Chandra, (S) AIR 1956 Cal 222 (224); Panch Gujar Gaur, Brahmans v. Amarsingh, AIR 1954 Raj 100 (FB); Bank of India v. John Bowman, ILR (1955) Bom 654: ((S) AIR 1955 Bom 305). There are many other decisions laying down the same proposition. The expression “Court of record” as used in Article 215 of the Constitution and the construction thereof according to the English practice must hold good in terms of Article 372 even after the Constitution.

The American practice, therefore, which grew up under different conditions, and which limited the power of the Courts in the United States of America to punish summarily only ex facie contempt or publication constituting a present and imminent danger to the administration of justice and reserved the procedure of information and indictment and trial by jury in regard to the contempt not in face of the Court, cannot be made applicable to Indian conditions.

25. The Contempt of Courts Act 1926 is almost in identical terms with Act 32 of 1952 except with regard to the power conferred on a High Court to enquire into or try a contempt of itself or of any Court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction and whether the person alleged to be guilty of the contempt is within or outside such limits.

There is no explicit provision to this effect in the Act of 1926, but so far as the power of a High Court to punish for contempt, is concerned, the phraseology is the same, viz.. power or authority of every High Court to punish an act of contempt in relation to a Court subordinate to it in accordance with the same procedure and practice as it I has and exercised in respect of itself. In my opinion, this provision in the Act of 1926 as well as
in the Act of 1952 has been rightly construed as recognising the power of the High Court to punish for contempt according to its own procedure and practice and rules out the contention that any alteration in the position has been made by virtue of the Constitution of India.

The Act of 1952 has been evidently passed after the coming into force of the Indian Constitution. In the case of Legal Remembrancer v. B. B. Das Gupta, ILR 32 Pat 1069: (AIR 1954 Pat 203), a Division Bench of this Court negatived a similar argument by Sri B. C. Ghosh and pronounced an opinion in consonance with this view. Yet another technical objection to the validity of the present proceeding by Sri B. C. Ghosh is that, the proceeding not having been started on a notice of motion setting out the material facts on affidavit, the proceeding itself is null and void. The short answer to the contention is, as held above in this case, that there is no hard and fast rule in the procedure of contempt except that of fairness and justice. When a private party moves the Court for contempt, it is proper that he should state facts on affidavit before the Court can take notice of his statement, but when the Court moves suo motu, the question of notice of motion or statement on affidavit is wholly redundant.

26. Having thus disposed of the points of law raised by Sri Ghosh, it is now necessary to dispose of the argument on merits advanced by Sri S. N. Datta on behalf of Sri Ghosh. Sri Datta has contended that the article read as a whole will not amount to contempt of Court, much less of the Patna High Court. He has, in the first place, urged the same contention which was raised by Sri Basudeva Prasad in Original Criminal Misc. No. 3 to the effect that the occasion for the publication of this article was a public occasion inasmuch as the Law Commission had published its recommendations on which opinions were expressed by lawyers and public men, interested in the administration of justice, in their own light. The present article also purports to be one of mat character, and on that account, even assuming that Sri Basanta Chandra Ghosh is the author of the article, he should not be punished for contempt of Court.

It may, however, be said in answer to this
contention, as has been held in Sri Basudeva
Prasad’s case, that this Court, while issuing notice,
took care to exclude all those passages in the
article which could be fairly construed as an expression of opinion about the report of the Law
Commission. That might be in the nature of a
fair comment, and this Court can never, be so
sensitive as to rule out the fair comments about
the administration of justice relating even to the
affairs of this Court. But the main criterion to
be kept in view is that the limits of fair comments
must not be exceeded. The language in which
the comment is couched should be objective, dignified and there should be no attempt at ridiculing the administration of justice by this Court by
using language which is likely to shake the confidence of the public in the capacity, impartiality and the fairness of the procedure adopted by
this Court in the disposal of matters which come
up for consideration. Applying this test, it is apparent that Sri Ghosh is guilty of clear contempt
of Court.

The passages on which notice wag issued have been set out above. In the first paragraph quoted in the notice, Sri Ghosh has endeavoured to repeat in his own words a summary of the recommendations of the Law Commission with regard to the unsatisfactory method of recruitment
of Judges, the lowering of standard of judiciary and selection of Judges on consideration other than fitness as also with regard to the executive influence on the judiciary.

It may be stated that the Law Commission as a privileged body might be entitled to go into these matters if the Law Commission was satisfied that whatever was said therein was within its terms of reference. There may be some difference of opinion with regard to all that has been said being within the terms of reference but that, however, is a different matter. The Law Commission, however, collected evidence on its view of its terms of reference. The evidence given before the Law Commission was mostly by men who, however eminent they might be, did not necessarily have first-hand acquaintance with the matters to which they were speaking, particularly in regard to what has been called the executive influence on the judiciary. The statements made before the Law Commission in the very nature of the case must be those based on opinion which in some cases might be well grounded and in other matters might proceed from lack of information, inadequate information and even personal predilections.

As it was, however, the Law Commission might be justified in coming to its own conclusion which might appear to some as being in the nature of unwarranted generalisation or might appear to others as warranted by the evidence recorded. In my opinion, however, a person not a member of the Law Commission would not be competent to say things which would lower the judiciary in the estimation of the public, even hanging his argument on the peg of the Law Commission. Sri Ghosh is saying that no one acquainted with the work of the judiciary would honestly differ from the report of the Law Commission on the matters aforesaid has taken upon himself the responsibility of affirming them by repeating those matters. In my opinion, the privilege which is available to the Law Commission not being available to any one else, on a remark for which the maker thereof takes personal responsibility, if it constitutes contempt of Court, the person concerned brings himself within the ambit of the law of contempt.

There can be no doubt that the remarks referred to above have the tendency of lowering the judiciary of the country as a whole in the public eye and have a tendency to show that the Judges appointed are not of the proper standard and, still more, the reference to executive influence on the judiciary not only in the matter of appointment of Judges but otherwise, is a clear contempt. This sort of aspertion on the judiciary was gone, into in ILR 63 Cal 217: (AIR 1935 Cal 419) (FB) and held to constitute contempt of Court. The impugned article contained the following passage:

“It is so unfortunate and regrettable that at the present day the Chief Justice and the Judges find a peculiar delight in hobnobbing with the Executive, with the result that the judiciary is robbed of its independence which at one time attracted the admiration of the whole country. The old order of things has vanished away. We wish the Chief Justice and the Judges appreciate the sentiments of the public. The generation that has gone by should be an ideal to them.”

In Vindhya Pradesh State v. Baijnath Dube, AIR ‘1951 Vindh. Pra 14, a speech containing false and mischievous allegations calculated to lower the entire judiciary in the estimation of the public was held to be an act of contempt of Court. I have not been able to find in any passage in the report of the Law Commission through which we
have been taken by Sri Datta, on behalf of Sri Ghosh, any trace justifying the remark that the judiciary in the matter of administration of justice in the High Court has been influenced by the executive. Sri. Ghosh not only cannot look into the Law Commission’s report as the basis of the remark but has indulged in something which is clearly derogatory to the judicial independence and impartiality of the High Courts including this Court and he must be held liable for it.

27. A reference is made to the recommendations of the Law Commission for a preliminary hearing of applications under Article 32 of the Constitution in the Supreme Court, which does not receive the commendation of Sri Ghosh. He also adverts to the procedure followed in the High Court with regard to the admission of the writ application. Sri Ghosh, who is a practising lawyer of the Patna High Court, says that his experience in some of the High Courts, where most of the writ applications are dismissed at the admission stage, has not been happy and encouraging.

There can be no doubt that in this he refers to the Patna High Court as well or, at any rate, does not exclude it in definite terms, and the suggestion is that such dismissals at the admission stage are arbitrary and unjustified. A similar reference to first appeals and criminal appeals being heard by single Judges is made arid the writer has bracketed it with writ applications saying that his experience with regard to the disposal of these appeals by single Judges has not been happy and encouraging.

It again casts a reflection upon the manner of disposal of these cases. Sri Ghosh refers more pointedly to the innovation of hearing in full of Letter Patent appeals at the admission stage. He says that his experience in this matter has been more discouraging. He says further that there is no provision for the same in law. It may be pointed out that as an advocate practising in this Court Sri Ghosh should have known that this matter has been decided by the Full Bench of this Court consisting of the Hon’ble the Chief Justice and Jamuar and R. N. Choudhary, JJ. where their Lordships have considered the propriety of putting up for admission appeals from judgments of single Judges in first appeals. This is justified by Rule 2 of Chapter VII, at p. 31 of the Patna High Court Rules. The case is reported in Ramji Singh v. Mt. Chhulghara Kuer, AIR 1958 Pat 655 (FB). The rule may, however, be quoted here for the sake of clarity:

“2(1) Every appeal to the High Court under Clause 10 of the Letters Patent from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of criminal jurisdiction) of one Judge of the High Court or one Judge of any pi vision Court, pursuant to Article 225 of the Constitution, shall be presented to the Registrar within 30 days from the date of the judgment appealed from, unless a Bench in its discretion, on good cause shown shall grant further time.

The Registrar shall endorse on the memorandum the date of presentation and after satisfying himself that the appeal is in order and is within time shall cause it to be laid before a Bench for orders at an early date. It need not be accompanied by a copy of the judgment appealed against, but, if it is admitted, the appellant shall within 10 days
from the admission of the appeal file a typed copy of the judgment for the use of the Court.

XXX X X”

With reference to this provision in the Patna High Court Rules, the Full Bench took the view that such an appeal under Clause 10 of the Letters Patent has to be considered for admission and necessary orders are to be passed either admitting the appeal or rejecting it. The reference by Sri Basanta Chandra Ghosh in the article that there is no provision for the same in law in respect of hearing for admission is evidently based on lack of information which in itself might not be seriously objectionable. If Sri Ghosh had been an ordinary member of the public and not an advocate practising in this Court, such conclusion based on lack of information might have been passed over as proceeding from ignorance.

Coming as it does from a lawyer practising in this Court, it would have been regrettable in any case; but Sri Basanta Chandra Ghosh has made the position worse by couching his conclusion in language which is not only unwarranted but which has the tendency to show that the High Court is not dealing out proper justice in the matter of first appeals disposed of by single Judges, because Sri Ghosh is not satisfied with that and, still less, because the judgment of a single Judge in first appeals in the High Court is subject to scrutiny by a Division Bench before the appeal from it can be admitted and registered. Sri Ghosh calls it “stultification of justice”. Sri S. N. Datta, appearing for Sri Ghosh, has contended that the words “stultification of justice” in itself are not objectionable. I am unable to accept the contention. “Stultification” according to the Concise Oxford Dictionary is

“stultify (of act statement, agent, speaker), reduce (previous act etc.) to absurdity, exhibit (act etc. or meself) in ridiculous light, make (act etc.) of no effect, neutralise (oneself) as agent, by later inconsistent act etc.”

The expression “stultification of justice”, therefore, means definite denial of justice. It is difficult to understand the line of reasoning of an advocate who is of the opinion that judgment by a single Judge is necessarily bad because in all the High Courts of India single Judges have been vested with the power to deal with certain class of cases both civil and criminal and still less how a thorough argument before a Division Bench to consider whether an appeal from the judgment of a single Judge of a High Court should be admitted or not can result in the stultification of justice.

The thorough consideration, if any, should lead to the promotion of the cause of justice and not to the stultification thereof. There is no reason in principle why a Division Bench of the High Court should not test the merits of a Letters Patent Appeal as of any other appeal at the admission stage. Sri Basanta Chandra Ghosh perhaps intends that all Letters Patent Appeals should be admitted even if they are without any merit and notices should be issued to the respondents in each case. Such a procedure would, however, cause harassment to the respondents and would not promote the cause of justice, and the suggestion of Sri Basanta Chandra Ghosh is apparently the result of perverse thinking.

Apart from that however, the tone and tendency of this phrase “stultification of justice” clearly are to lower the High Court and its administration of justice in the estimate of the public.

28-29. It may be stated that this practice is being followed in the other High Courts as well.

In Madras High Court (vide Rule 51 (3) of the Appellate Side Rules of that Court) an appeal arising out of an original decree filed under Clause 15 of the Letters Patent, which corresponds to Clause 10 of the Letters Patent of the Patna High Court, is posted before a Bench of two Judges, other than the Judge from whose decision the appeal is preferred, for orders of issue of notice to the respondent. In Bombay, Letters Patent appeals are placed before a Division Bench Court for a preliminary hearing ex parte. Rule 23 of the Bombay High Court Appellate Side Rules (Chapter III) reads thus:

“An appeal from a judgment of a single Judge passed under Order 41, Rule 11 of the C. P. C., or from the judgment of a single Judge exercising powers under Rule 4 above, other than a judgment made on or after the 1st February 1929 in the exercise of appellate jurisdiction in respect of a decree or order the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court shall be brought before a Division Court for a preliminary hearing ex parte.

An appeal from a judgment of a single Judge made on or after 1-2-1929 in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court shall not be brought before a single Judge or a Division Court for preliminary hearing if it is accompanied by a certificate of the Judge who passed the judgment that the case is a fit one for appeal, but shall be brought before a Division Court for final hearing after it is admitted to the register and notice of the appeal is served upon the respondent”.

In Andhra Pradesh High Court, the appeal is listed before a Bench of two Judges for orders as to admission. In the Allahabad High Court, although the Letters Patent appeal lies before the Court, the rule is not clear whether it should be placed before the Bench for admission. The rule of the Calcutta High Court is silent as to the procedure in such cases as to whether a Letters Patent appeal is to be placed before a Division Bench for admission. So far as the Patna High Court is, however, concerned, I have already, stated that the Full Bench has gone into the matter and considered the propriety of placing the judgment of a single Judge in first appeal before a Division Bench for admission on the basis of the rule of the Patna High Court itself.

The view of Sri Basanta Chandra Ghosh which he has set forth in the article to inform the public on this matter is evidently misleading and the language employed by him is also disrespectful.

30. While referring to the writ applications in the High Court under Article 226 of the Constitution, Sri Ghosh has characterised the procedure of hearing the Advocate-General On affidavit at the admission stage without the records as undesirable. He says:

“that the Law Commission was not aware that in some High Courts prayers for calling for records in application for writ of certiorari or prohibition have been curtly rejected and what would have appeared from the records themselves have been disposed of on vague affidavits made on behalf of the State of Bihar on the simple ground that the facts are contested and disputed and, therefore, would require investigation and hence beyond the scope of writ application.”

Apart from the fact that the reference in this article is to the State of Bihar under Article 226 which would show that Sri Ghosh is referring to Patna High Court, the use of the expression “curtly rejected” smacks of insinuation and the further reference to the rejection of these writ applications on vague affidavits drawing an inference which would be patently drawn from the records, also suggests an arbitrary procedure adopted by the High Court. The relevant rules on the point as contained in the Patna High Court Rules at page 149 are as follows:

“2. The application shall be made according to its nature, to a Division Bench hearing civil or criminal applications as the case may be, except on any day on which no such Bench is available, when it may be made to a single Judge nominated by the Chief Justice but he shall not pass any final order thereon.

If the direction or order or writ is sought against the Government or a public officer acting or purporting to act in discharge of his official duty, a copy of the application shall be served on the Advocate-General not later than noon of the day preceding that on which the application is moved.

XXX X X

4. Every application shall be posted for admission and hearing before a Division Bench. The Bench before which the application is posted for admission may either admit the application and order notice to issue, or pass such orders as it deems fit:

(the proviso has been omitted as being not relevant for the present purpose),

5. The notice of the application shall be served on all persons directly affected and on such other persons as the Court may direct;

Provided that on hearing of any such application, any person who desires to be heard in opposition and appears to the Court to be a proper person to be heard shall be heard, notwithstanding that he has not been served with notice of the application and shall be liable to costs in the discretion of the Court if the order shall be made.

6. An answer to the rule nisi showing cause against such application shall, except with the leave of the Court, be made by filing an affidavit and by serving a copy thereof upon the applicant or his advocate, as the case may be, not later than the date fixed for showing cause:

Provided that an affidavit in reply filed beyond the period prescribed by this rule shall be placed for orders before the Bench at the time of the hearing of the application and the Bench may pass such order on the affidavit as it thinks fit.”

The procedure provided in these rules has been laid clown after mature consideration by the Full Court. The practical advantage of a far reaching character in following this practice ha? been brought out in numerous instances. When an application for a writ is filed against a public authority in charge of a department having certain rules of its own which are not generally known to others outside the department, the notice served on the Advocate-General enables him to come into contact with the authorities of the department concerned and he is then in a position to place before the Court a particular departmental rule which provides a complete answer to the complaint alleged
in the application for a writ, and then it becomes superfluous to issue notice which has not only the effect of adding to the work of the Court but also causes dislocation of the working of the department concerned. This occasion arises more frequently in regard to the information on questions of facts.

In a particular case, an examination to be held at the University on a certain date would have to be stopped if the application for a writ of mandamus had been admitted and interim order for staying the examination had been issued. Since notice was served on the Advocate-General it was possible for him to get into contact with the University authorities and he was able to receive proper instruction as to whether the applicant has been served with the requisite notice. On foot of this definite information the Court could proceed to dismiss the application to save considerable dislocation, and consequent inconvenience to a large number of students who were expected to take the examination.

Other instances also are in point. Sri Basanta Chandra Ghosh, therefore, cannot claim that the procedure followed by this Court in regard to issue of notice in writ cases requiring the service of a copy of the application on the Advocate-General is necessarily disadvantageous as a matter of procedure. It may also be mentioned that it is not always that the counsel for the State is heard before notice is issued. In a clear case notice is issued immediately after hearing the argument advanced on behalf of the petitioner. It is only in doubtful cases where the Court is satisfied that it is necessary to hear the counsel for the State before notice is issued that this procedure is followed.

 

The criticism   of  Sri   Basanta   Chandra   Ghosh
appears to be the result of personal bias or prejudice, and it is definitely contempt of Court to suggest that the Patna  High     Court has  framed the
rule with a design to stiffle writ applications or to 
grant indulgence to the State to file vague or false
affidavits.	
 

31. The next count of charge against him is the reference to the case of Sri Babul Chandra Mitra whom, the High Court refused to enrol as an advocate and to whom a licence was not granted to practise as a pleader. This gentleman is of the district of Champaran and, as appears from the records of the case, there was some reflection upon him for his association with his brother who was charged with criminal breach of trust in respect of a huge sum of Government money from the Motihari Treasury. His application for being granted a licence to practise as a pleader was considered as early as 1938 and permission was refused. There is a chequered history of his applications thereafter and he persisted in his attempt one after another to have himself enrolled as an advocate, but the High Court refused his application on the administrative side. Sri Babul Chandra Mitra thereafter moved the Supreme Court which Court also refused his application. The facts of the case relating to the application of Sri Babul Chandra Mitra for enrolment as a pleader, and thereafter as an advocate, have been set out in the decision of this
Court as also in the decision of the Supreme Court reported in ILR 33 Pat 553: (AIR 1954 SC 524). Mukherjea, J. has set out the facts as follows:

“The present petition, it must be remembered, is the fifth of a series of applications which commenced as early as the year 1938. There were three applications by the petitioner for enrolment as a Pleader of the District Court and all of them were dismissed. We find from the affidavit of the opposite party that in connection with the application for enrolment as a Pleader which was made in October, 1939, the applicant was heard in Chambers by two learned Judges, and then the matter was considered by a full court. The third application was made in 1943, and in this application the petitioner himself submitted an elaborate explanation regarding the matter which seemed to him to have weighed with the learned Judges in rejecting his earlier applications. This was registered as Miscellaneous Judicial Case No. 103 of 1943, and eventually it was withdrawn on 7th February 1944. In 1946, the first application for enrolment as an Advocate was made under the Bar Councils Act, and this application again was withdrawn. On 9th October 1950 the present application was filed, and it was circulated to the full Court, reference being given to the minutes of all the earlier applications. It was in connection with these minutes that the remark was made by the Chief Justice that there was no reason to modify the previous order. This observation of the Chief Justice was approved of by the majority of the Judges, and in accordance with the majority decision, the application was rejected.”

It may be mentioned that an application was filed in this Court again on the administrative side for enrolment as an Advocate and was rejected by the Full Court after a hearing was given to Sri Mitra. He was heard again as to what he had to say regarding his application for enrolment. It may be stated that the point which the writer of the article has made in regard to the High Court having the power to refuse admission to a person to practise as an Advocate, if it is satisfied that the applicant is not a fit person for enrolment, was raised by Sri Basanta Chandra Ghosh even in the Supreme Court.

The learned Judges held that the proviso to Section 9(1) of the Bar Councils Act was a complete answer to this question and with reference to the argument that the proviso to Section 9(1) of the Bar Councils Act amounted to an unreasonable restriction on the fundamental right guaranteed under Article 19(1)(g) of the Constitution, it was observed as follows :

“The vesting of powers even in an unfettered form in the High Court to exercise discretion in the matter of enrolling Advocates, who would be entitled to practise before it does not, in our opinion, amount to an unreasonable restriction. Such discretion will have to be vested in some body, and no other or more appropriate authority could be thought of, except the High Court itself.”

In spite of the pronouncement of the highest judiciary in the land on this matter Sri Basanta Chandra Ghosh has still thought it fit to characterise the refusal of permission to Sri Babul Chandra Mitra to
be enrolled as an Advocate of this Court, as an act of disgrace and scandal. To Sri Basanta Chandra Ghosh, Sri Babul Chandra Mitra is a victim of something done by the High Court. He has called his case “an eve-opener to the profession”, as the High Court refused to consult even the Bar Council in the matter of enrolment.

I see nothing objectionable in that part of the remark where it is mentioned that the hearing is done in closed chambers when the case of enrolment of a pleader is concerned and the writer has every right to ventilate his views that such a practice should not be continued, but to say that such a practice after the achievement of independence is really a matter of “shame and disgrace” is something beyond the limit of legitimate criticism. Sri S. N. Datta has contended that the expression “matter of shame and disgrace” does not refer to the Patna High Court but to the practice followed.

That may be so, but used in the context where the expression occurs, it appears to me that, taken as a whole, this strong expression also is bound to have a deleterious effect on the mind of the reader so far as the administrative side of the Patna High Court in the matter of enrolment of Pleaders and Advocates is concerned.

32. In the next paragraph which is being viewed, reference is to a single Judge disposing of our or five first appeals in one day without even looking into the printed paper book and the volume of evidence in the case. He calls the situation “amusing” which is a highly undecorous expression to use in relation to the proceeding in the High Court. A list has been supplied to the Court by the office which shows that the average disposal of first appeals by a single Judge does not exceed two per day.

That point, however, is immaterial. Assuming, therefore, that four or five first appeals were disposed of on some days, it might be for a number of reasons; as in some cases the appeals are not pressed the matter is compromised, or in some the point of fact or law is so obviously for or against one side or the other that after some argument a counsel thinks it wise not to press it or a short judgment has to be written to dispose of the appeal. It is really surprising that a counsel practising in this Court should call such disposal “amusing” which is factually incorrect and has a tendency to create an impression on the mind of the public that single Judges disposing of first appeals do not even look into the printed paper book and the volume of evidence in the case. Sri Ghosh proceeds further in the following strain :

“The present first appeals of the value of less than Rs. 10,000/- now pending before the High Court are being disposed of on pure question of law without consideration of facts. This has become worst part of the present tendency in administration of justice where the bogus (bogie ?) of clearance of arrears have overweighed judicial temperament of Judges.”

There can be no doubt that if an appeal can be disposed of on a pure question of law it may well be that the question of facts does not arise, e.g. the
question of jurisdiction or maintainability of the appeal etc. may conclude the appeal. Even assuming that such an instance came to the notice of Sri. Ghosh, to generalise on foot thereof to the effect that appeals are being disposed of on pure question of law without consideration of fact is a distortion of the situation. To go further and to say that the bogie (probably bogey, more correctly) of clearance of arrears has overweighed the judicial temperament of Judges, presents the contempt in a worse light.

33. Sri S. N. Datta has argued, however, that unless there be a motive to scandalise the Court or the administration of justice, there can be no contempt of Court and, in the present instance, Sri Basanta Chandra Ghosh wrote the article in public interest and he did not intend to scandalise the Patna High Court or, for the matter of that, any High Court in its administration of justice. It is difficult to say what Sri Ghosh’s motive is, but” the observation of Lord Atkin in the case of 1936 A.C., 822 : (AIR f936 PC 141) which has been referred to by Sri Ghosh also in support of his contention may be quoted as relevant on the point:

“Whether the authority and position of as individual Judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticizing, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein : provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue : she must be allowed to suffer the scrutiny and respectful even though outspoken, comments of ordinary men.”

Sri Basanta Chandra Ghosh relied upon this passage in particular to show that unless there is malice or motive on the part of the person referring to the administration of justice in a Court of law, statement made by him verbally or in writing cannot be brought within the purview of the law of contempt, and that is the effect of this judgment. In this case no improper motive has been imputed to those taking part in the administration of justice in the Patna High Court nor is there any malice on the part of the writer nor does he intend to impair the administration of justice. He is, there-tore, immune from any liability for the publication of the article. As I have mentioned, however, before, it is difficult to say with what motive Sri Basanta Chandra Ghosh wrote the article in an irresponsible strain but, as Lord Atkin put it, it is not only to impute improper motive or malice which matters but it is the tone and phraseology which make a world of difference between innocence by guilt in a proceeding on a charge of contempt of Court. Lord Atkin has rightly pointed out that justice must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

As I have pointed out above, if the criticism had been only outspoken nothing much would have mattered, but the language employed is far from being respectful and is bound to shake the confidence of the public in the administration of justice by the Patna High Court.

34. Sri Basanta Chandra Ghosh has also referred to the case of Ananta Lal Singh v. Alfred Henry Watson, AIR 1931 Cal 257, where it has been observed by Rankin, C. J. that

“the Court’s jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. It is not every theoretical tendency that will attract the action of the Court in its very special jurisdiction. The purpose of the Court’s action is a practical purpose and, it is reasonably clear on the authorities that this Court will not exercise its jurisdiction upon a mere question of propriety where the tendency of the article to do harm is slight and the character and circumstances of the comment is otherwise such that it can properly be ignored”.

That case, however, was in the nature of a comment upon a pending case. It was in respect of certain comments published in the Statesman on the 28th and 31st August, 1930, relating to the Chittagong Armoury Raid case. The observation, therefore, of that case relates to influence to be exercised on the mind of the Court by any publication in a newspaper which might prejudice the trial of the case. The present article, however, is one the effect of which is to scandalise the Court.

35. I am satisfied, therefore, that there is no getting away from the conclusion that Sri Basanta Chandra Ghosh has brought himself clearly within the ambit of the offence of contempt of Court. He is accordingly found guilty.

36. As to the question of sentence, however, it may be stated that Sri Ghosh has taken the occasion of the publication of the recommendations of the Law Commission to put forth his own comment in the press. If he had done so without the context of the Law Commission, the Court would have taken a very serious view but, as it is, however, considering the occasion, it appears to me that the ends of justice will be met in this case by imposing upon him a fine of Rs. 250/- only and in default to undergo simple imprisonment for a period of one month.

37. It may be that if Sri Basanta Chandra Ghosh had adopted a more reasonable attitude and had owned up the article as his own and then argued on merits, this Court might have been inclined to look at his transgression with a certain amount of leniency. If he had made suitable amends by an apology for what he had done, even then the Court might not have insisted on passing the sentence on him. It is curious indeed, however, that Sri Ghosh, in spite of an opportunity being given to him more than once, even after the evidence was recorded, to say whether he had written the article in question and whether he repented for what he did, refused to admit that he was the author of the article;

nor did he help the Court even by clarifying his stand that he had not written the article.

He has embarrassed the Court a good deal by an unhelpful attitude which is totally incomprehensible in an Advocate of his standing. This, apart from the other matter, has influenced the Court a good deal in the matter of costs of the proceedings which have been prolonged from day to day just to establish that Sri Basanta Chandra Ghosh is the writer of the article in question. In the result, he must be mulcted with cost which is assessed at Rs. 500/-.

38. As for the charge against Pandit M. S. M. Sharma, editor of the Searchlight, and Sri Awadhesh Kumar Tewari, printer and publisher, it may be stated that they have tendered unqualified apology and stated that they published the offending article in the Searchlight in the bona fide belief that it was written by Sri Basanta Chandra Ghosh, a senior Advocate of this Court, who was expected to be fully aware of the facts with which he was dealing as also of the legal implications of those facts. They had not the slightest apprehension in their minds that Sri Basanta Chandra Ghosh would write something which would come within the purview of contempt of court.

It is true, no doubt, that the editor of the Searchlight in particular should have been circumspect in the matter. He should have read the article carefully which, prima facie, contained objectionable phraseology and the editor should not have allowed its publication in the Searchlight. Every editor of a newspaper is expected to exercise due care in this matter; and in normal circumstances this kind of plea would not have been accepted as sufficient to purge the contempt. Considering, however, the peculiar circumstances of the present case, I accept the apology tendered on behalf of the editor and the printer and discharge the rule in so far as they are concerned.

It is, however, expected that in future the editor would be wiser by his experience in the present case and would carefully scrutinise every publication in his news-paper which may have a tendency to reflect upon the dignity of the law Court and the administration of justice in general, or which might otherwise appear to offend against the law of contempt of Court.

Sahai, J.

39. I agree.

H.K. Chaudhuri, J.

40. I agree.