{"id":261775,"date":"1978-03-14T00:00:00","date_gmt":"1978-03-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rama-dayal-markarha-vs-state-of-madhya-pradesh-on-14-march-1978"},"modified":"2016-01-21T01:43:07","modified_gmt":"2016-01-20T20:13:07","slug":"rama-dayal-markarha-vs-state-of-madhya-pradesh-on-14-march-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rama-dayal-markarha-vs-state-of-madhya-pradesh-on-14-march-1978","title":{"rendered":"Rama Dayal Markarha vs State Of Madhya Pradesh on 14 March, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rama Dayal Markarha vs State Of Madhya Pradesh on 14 March, 1978<\/div>\n
Equivalent citations: 1978 AIR 921, 1978 SCR (3) 497<\/div>\n
Author: D Desai<\/div>\n
Bench: Desai, D.A.<\/div>\n
           PETITIONER:\nRAMA DAYAL MARKARHA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MADHYA PRADESH\n\nDATE OF JUDGMENT14\/03\/1978\n\nBENCH:\nDESAI, D.A.\nBENCH:\nDESAI, D.A.\nFAZALALI, SYED MURTAZA\n\nCITATION:\n 1978 AIR  921\t\t  1978 SCR  (3) 497\n 1978 SCC  (2) 630\n CITATOR INFO :\n R\t    1988 SC1208\t (17)\n\n\nACT:\nContempt  of Courts Act<\/a> 1977, Sections 5<\/a>, 13-Fair<\/a>  comments-\nPublication of pamphlet by an Advocate imputing motives to a\nMagistrate-Tests to judge if comment is fair.\n\n\n\nHEADNOTE:\nThe  appellant\ta  Senior  Practicing  Advocate\t in   Umaria\nDistrict Sahdol, Madhya Pradesh was convicted and  sentenced\nto  pay\t a fine Rs. 1,000\/- under s. 19<\/a> of the\tContempt  of\nCourts Act 1971, by the High Court.  The appellant  appeared\non behalf of some accused persons in a criminal trial before\nthe  Additional\t District  Magistrate.\t The  accused\twere\nconvicted  by the Magistrate.  They filed an  appeal  which,\nwas  allowed by the Additional Sessions Judge.\t Before\t the\ndate  for challenging the said judgment of  Addl.   Sessions\nJudge  by  way of revision in the High\tCourt  expired,\t the\nappellant published a pamphlet.\t In the pamphlet imputations\nof improper motive to the learned Magistrate in deciding the\ncase  were  made.   The\t appellant  did\t not  question\t the\nauthorship  and publication of the pamphlet.   However,\t his\ndefence\t was that what he did was merely publishing  a\tfair\ncomment on the merits of a criminal case which was beard and\nfinally\t decided and that therefore he was entitled  to\t the\nbenefit of S. 5<\/a> of the Act.  Alternatively it was  contended\nthat  even if the Court came to the conclusion that  he\t was\nguilty\tof contempt of court no sentence should\t be  imposed\nupon   him  because  the  publication  is  not\t likely\t  to\nsubstantially  interfere or would  tend\t substantially\tto\ninterfere  with the due course of justice and therefore,  is\nentitled to benefit of s. 13<\/a>.\nPartially allowing the appeal\nHELD  : 1. The statement in the pamphlet \"should  the  judge\nwith his wayward bend of mind go on using wayward pen\"\t'is\nnothing short of imputing a deliberate motivated approach on\nthe  part of the Judge.\t Similarly to say that the  judgment\nproceeded  in  one  direction  but  thereafter\tit  took   a\nsomersault  because the Magistrate had resolved\t to  convict\nthe  accused  in  spite of there  being\t no  evidence  would\nclearly\t insinuate  that the issues were  prejudged  by\t the\nJudge. [502 C-D]\n2. Even prior to the enactment of the Contempt of Courts Act<\/a>\n1971 a fair and reasonable criticism of judicial act did not\nconstitute  contempt and this cherished and noble  facet  of\nthe  larger  liberty  of freedom of  speech  and  expression\nenshrined in Art. 19(1)(a)<\/a> of the Constitution has found its\necho in s. 5<\/a> of the Act.  The limit of fair comment being an\nintegral part of the larger liberty of freedom of speech and\nexpression it could not be put in a straight-jacket  formula\nor  converted  into a master key which will open  any  lock.\nMore   or   less  it  would  depend  upon  the\t facts\t and\ncircumstances of each case, the situation and  circumstances\nin which the act was done, the language employed the context\nin which the criticism was offered and the people for  whose\nbenefit the exercise was undertaken and the effect which  it\nwill  produce  on the litigants and society in\trelation  to\ncourts and administration of justice. [502 G-H, 503 A-R]\n3. Contempt jurisdiction is a special and to some extent  an\nunusual type of jurisdiction wherein the prosecutor and\t the\nJudge are combined in one.  To some extent it trenches\tupon\nthe  fundamental  Tight of free speech\tand  expression\t and\nstifles\t criticism  of a public officer concerned  with\t the\nadministration of public justice in\tdischarge   of\t his\npublic duty.  Therefore, the contempt jurisdiction has to be\nsparingly    exercised\t  with\t  utmost    restraint\t and\nconsiderable circumspection.  [503 H, 504 A, C]\nBaradakanta    v. Registrar, Orissa High<\/a> Court, AIR 1974  SC\n710 at 735; Queen v. Gray,    (1900) 2 Q.B. 36 at 40; Regina\nv.   Commissioner  of  Police  of  the\t Metropolis,ex-parte\nBlackburn,  (1968)  2  Weekly  Law  Reports  1204  at  1207;\nreferred to.\n498\nPerspective  Publications  Pvt.\t  Ltd. & Anr.  v.  State  of\nMaharashtra<\/a>, [1969] 2 SCR 779 at 791-792 applied.\n4.  Fair and reasonable criticism of a judgment which  is  a\npublic\tdocument  or  which  is a  public  act\tof  a  Judge\nconcerned   with   administration  of  justice\t would\t not\nconstitute  contempt.\tIn  fact such  fair  and  reasonable\ncriticism must be encouraged because after all no one,\tmuch\nless Judges, can claim infallibility.  Such a criticism\t may\nfairly assert that the judgment is incorrect or an error has\nbeen committed both with regard to law or established facts.\nBut  when it is said that the Judge had a predisposition  to\nconvict\t or  deliberately  took\t a  turn  in  discussion  of\nevidence  because  he had already resolved  to\tconvict\t the\naccused,  or  has  a wayward bend of  mind,  is\t attributing\nmotives,  lack of dispassionate and objective  approach\t and\nanalysis  and  prejudging of the issues\t which\twould  bring\nadministration of justice into ridicule.  One has to bear in\nmind  the setting in which the court is functioning and\t the\nattack\ton the administration of justice.  In  this  country\njustice at grass-root level is administered by courts set up\nin  rural backward areas largely inhabitated  by  illiterate\npersons.   Their susceptibility is of a different type\tthan\nthe  urban elite reading newspapers and exposed to  wind  of\nchange or even wind of criticism.  Again the condemner is  a\nlawyer\tbelonging  to the fraternity of\t noble\tand  liberal\nprofession.   A\t criticism  by\thim  would  attract  greater\nattention  than by others because of his day to day  concern\nwith the administration of justice.  Such criticism is bound\nto substantially interfere with due course of justice.\tHigh\nCourt  rightly\theld  that the\tpamphlet  published  by\t the\ncondemner  was highly mischievous. [505 H, 506 A-H, 507\t A-D\n508 C]\n5.  In the present case a token punishment would  serve\t the\nends of justice, because if the contemner while pursuing his\nobject\tzealously  is  required to be kept to  the  path  of\nrectitude,  a  token fine will also consciously\t remind\t the\ncontemner  that he is not a gentleman at large.\t A  fine  of\nRs.   1,000\/-  was  therefore  reduced\tto   Re.1\/-,   while\nmaintaining the conviction. [508 E]\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 100 of
\n1975 .\n<\/p>\n
From  the Judgment and Order dated 14-2-1975 of\t the  Madhya
\nPradesh High Court in Misc.  Criminal Case No. 127\/74).
\nIn Person for the Appellant.\n<\/p>\n
I. N. Shroff for the Respondent
\nThe Judgment of the Court was delivered by
\nDESAI, J. An Advocate, the appellant in this appeal under S.
\n19<\/a>  of the Contempt of Courts Act, 1971, was  convicted\t and
\nsentenced to pay a fine of Rs. 1000\/-, in default to  suffer
\nsimple imprisonment for one month, by a Bench of the  Madhya
\nPradesh\t High  Court  for committing  criminal\tcontempt  by
\nscandalising  or  tending  to  scandalise,  or\tlowering  or
\ntending\t to lower the authority of the Court  of  Additional
\nDistrict Magistrate (J), Umaria, then presided over by\tShri
\nA.  N. Thakur, by publishing a pamphlet on 1st January\t1974
\ncommenting  upon  a judgment rendered, by Shri Thakur  in  a
\ncriminal case of which he had taken cognizance on a  challan
\nfiled  by the police upon a, report made by one\t Lal  Chand
\n‘against  Betai Lal and. his Servant Abdul Majid.  The\tHigh
\nCourt,\ttook cognizance of the criminal contempt alleged  to
\nhave  been committed by the appellant upon a reference\tmade
\nto  it by the Presiding Officer of the Court  of  Additional
\nDistrict Magistrate (J) under section’15(2) of the  Contempt
\nof Courts Act<\/a>
\n499<\/span>
\nA  resume  of  the events leading to the  reference  may  be
\nbriefly\t noticed.  One Lalchand, a tenant, reported  at\t the
\npolice\tstation that his landlord Betai Lal  and  landlord’s
\nservant\t Abdul\tMajid committed criminal trespass  into\t the
\npremises in his occupation and removed iron sheets which  he
\nhad placed in the terrace to arrest leaking of rain water in
\nthe  premises  and  that as the\t water\tleaked\tthrough\t the
\nterrace\t the goods stored in the premises were\tdamaged\t and
\naccordingly  Betai  Lal and Abdul Majid\t committed  offenses under section
\ns 451 and 427 of the Indian Penal Code<\/a>.\t After
\ncompleting,  investigation a charge, sheet was submitted  in
\nthe  Court of Addl.  District Magistrate (J).\tThe  accused
\nwere  represented by the present appellant who is  a  senior
\npracticing advocate in Urnaria, District Sahdol (M.P.).\t The
\nlearned\t Magistrate upon appreciation of evidence  concluded
\nthat  both the charges were brought home to the accused\t aid
\npassed\t sentence  ,considered\tappropriate  by\t him.\t The
\nconviction  and\t sentence  were\t questioned  in\t an   appeal
\npreferred by the accused in the Court of Additional Sessions
\nJudge,\tUmaria,\t who by his judgment and  order\t dated\t21st
\nDecember  1973\tallowed the appeal and set  aside  the\tcon-
\nviction\t and  sentence.\t  Soon\tthereafter,  the   offending
\npamphlet was published by the appellant.  Shri Takur  having
\ncome to know of the publication made a reference to the High
\nCourt  for initiating action for contempt of  court  against
\nthe appellant.\tThat is how the matter came before the\tHigh
\nCourt.\n<\/p>\n
In  the reference made by the Court of\tAdditional  District
\nMagistrate  (J),  certain passages were extracted  from\t the
\npamphlet as indicating the attitude of the appellant towards
\nthe Presiding Officer and the Court and further stated\tthat
\n“the  publication  tends to create an  apprehension  in\t the
\nminds  of  the people regarding the  integrity,\t ability  or
\nfairness  of  the  judge  and  it  also\t deters\t actual\t and
\nprospective  litigants from placing complete  reliance\tupon
\nthe court’s administration of justice” and thus\t scandalised
\nthe  court and the presiding officer as well as lowered\t the
\nauthority of the court.\t The original pamphlet is in  Hindi.
\nThe  High Court had before it the translation which but\t for
\nminor  variation  as suggested by the  appellant,  has\tbeen
\naccepted  by  both sides as correctly reproducing  what\t has
\nbeen stated in Hindi.  These passages posed as questions may
\nbe reproduced in extenso :\n<\/p>\n
\t      “(a)  Was Shri Thakur authorised\tto  overlook
\n\t      the arguments, of counsel ? More so, when\t two
\n\t      citizens were to be sentenced to imprisonment?\n<\/p><\/blockquote>\n
\t      (b) Has not Shri Thakur’s conduct been an open
\n\t      insult  to the Advocate concerned. as also  to
\n\t      the Advocates in general ?\n<\/p><\/blockquote>\n
\t      (c) Has not Shri Thakur’s conduct damaged\t the
\n\t      prestige of the sacred. post of the Judge ?\n<\/p><\/blockquote>\n
\t      (d) Was this witness (a resident of  Jaithari)
\n\t      according to wisdom of Shri Thakur,  competent
\n\t      to  give information after seven\tmonths\tfrom
\n\t      21st June 197T that on this date at Chandia it
\n\t      was  raining,  or that damage  was  caused  to
\n\t      particular person
\n500<\/span>\n<\/p><\/blockquote>\n
\t      (e)  When\t the nation’s entire  might,  police
\n\t      army etc., is ready to enforce obedience\tfrom
\n\t      every  person of the orders of a Judge, is  it
\n\t      proper  that the Judge himself should in\tthis
\n\t      manner  with  his wayward bent of mind  go  on
\n\t      using his
\n\t      wayward pen ?\n<\/p><\/blockquote>\n
\t      (f)  Why\tdid  Shri  Thakur,  after   suddenly
\n\t      twisting\this own finding, write in  the\tnext
\n\t      sentence that the accused entered in the house
\n\t      of  Lalchand and that they entered in  such  a
\n\t      manner  that for an offence under section\t 451<\/a>
\n\t      it  became necessary to impose such a  ‘severe
\n\t      sentence ?\n<\/p><\/blockquote>\n
\t      (h) Did Shri Thakur knowingly took (sic)\tthis
\n\t      turn, because, be had resolved to convict\t the
\n\t      accused in spite of there being no evidence  ?
\n\t      Otherwise\t there is no  understandable  reason
\n\t      for this turn.”\n<\/p><\/blockquote>\n
Some  more questions are also posed by the appellant in\t the
\npamphlet of which the High Court has not taken any note of.
\nOn  am\tanalysis  of  the  questions  posed  with  necessary
\ninnuendos and insinuations contained therein, the High Court
\nconcluded  that\t “the  imputation of improper  motive  to  a
\njudicial  officer in deciding a case by an Advocate who\t has
\nlost,  is a very serious matter, more so when the  Court  is
\nconcerned  with a mofussil place where there are one or\t two
\ncourts and a few lawyers and the litigating public is mostly
\nilliterate or poorly educated” and, therefore, the criticism
\nas contained in the booklet is highly mischievous and it  is
\nbound to undermine the confidence of litigant public in\t the
\nadministration\tof  justice.  They are likely to  feel\tthat
\njustice administered by subordinate judicial officers is not
\nfair and impartial, and, therefore, the appellant is  guilty
\nof  criminal  contempt and if it goes  unpunished,  it\twill
\nsubstantially) obstruct the due course of justice.
\nThe   appellant\t does  not  question  the   authorship\t and
\npublication  of’ the pamphlet by him.  In fact, his  attempt
\nis  to justify the course of action taken by  him.   Broadly
\nstated,\t his  defence  is that what he his  done  is  merely
\npublishing a fair comment on the merits of a criminal’\tcase
\nwhich has been heard and finally decided and, therefore,  he
\nis.  entitled  to  the benefit of s. 5<\/a> of  the\tContempt  of
\nCourts\tAct.  Alternatively, it was suggested that  even  if
\nthe  Court  comes to the conclusion that  the  appellant  is
\nguilty\tof contempt of court, no sentence should be  imposed
\nupon   him  because  the  publication  is  not\tlikely\t to,
\nsubstantially  interfere  or  would  tend  substantially  to
\ninterfere with the due course of justice and, therefore,  he
\nis entitled to the benefit of. s. 13<\/a>.\n<\/p>\n
Even though the Addl.  District Magistrate (J) while  making
\nthe reference extracted the passages from the pamphlet which
\nwere  considered as constituting contempt of the  Court,  it
\nalso annexed to the reference a copy of the pamphlet and the
\nHigh Court issued notice in respect of passages extracted by
\nit  kind reproduced in extenso hereinabove.  However,  while
\nholding\t the contemner of contempt of court, the High  Court
\nappears to have been mainly influenced by
\n501<\/span>
\npassages marked ‘R’ and ‘H’ by it in the judgment.  In\tthis
\nbackground,  the  contemner  made a sort  of  a\t preliminary
\nsubmission  that  while dealing with the appeal\t this  Court
\nshould confine\titself to only those passages noticed by the
\nHigh  Court in holding him guilty of contempt and the  other
\npassages, even if they find a place in the judgment,  should
\nbe  ignored.  Ordinarily, it is true that this\tCourt  while
\nhearing an appeal against a conviction for contempt of Court
\nwould  confine\tits  attention to the  material’  which\t hag
\nreceived consideration of the High Court while adjudging the
\ncontemner  guilty.   However,  there would  be\tno  lack  of
\njurisdiction  to  take into consideration  the\tpassages  in
\nrespect\t of which notice for contempt was issued and  served
\nupon the contemner.  But the wider question of law apart, we
\npropose to confine ourselves only to the material which\t has
\nreceived the consideration of the High Court.  The  question
\nmarked\t‘E’  is a composite statement, the  first  being  an
\ninnocuous  one expostulating the power and authority  behind
\nthe  judicial  pronouncement,  but in the  latter  part\t the
\ncontemner proceeds to state that though there is  tremendous
\nsanction  behind  the judicial\tpronouncement,\t‘should\t the
\njudge with his wayward bend of mind go on using his  wayward
\npen’.\tIn  question marked ‘H’ it is insinuated  that\tShri
\nThakur knowingly took the turn at some stage in the judgment
\n‘because he had resolved to convict the accused in spite  of
\nthere\tbeing\tno   evidence.\t Otherwise   there   is\t  no
\nunderstandable reason for this turn.\n<\/p>\n
The  High Court was of the opinion that it was not  possible
\nto  say that the conclusions reached by Shri Thakur even  if
\nerroneous, could not have been reached judicially by him and
\nthe  reversal  of  his judgment could not give\trise  to  an
\ninference  that in convicting the accused he was  unfair  or
\nthat he was actuated by an improper motive.  The High  Court
\nfurther\t observed that a reading of the criticism  contained
\nin the booklet goes to show that the author wanted to convey
\nthat  the  judgment delivered by Shri  Thakur  was  entirely
\nunfair\tand that be knowingly delivered such a judgment\t and
\nconvicted  the accused in spite of there being\tno  evidence
\nand  that  he  twisted big findings to\tthat  end.   Do\t the
\nquestions  posed  with implied insinuates convey  to  a\t lay
\nreader\tthat the judge lacks judicial  equipoise,  fairness,
\nopen  mind  and is guilty of prejudging issues\twhich  apart
\nfrom   scandalising   the  court,   would   interfere\twith
\nadministration\tof  justice in that the\t litigant  would  be
\nscared\taway  on  the  apprehension  that  the\tjudge  lacks
\nfairness, objectivity, impartiality and judicial approach ?
\nThe contemner, arguing his appeal in person, submitted\tthat
\nthe  High  Court was in error in infusing  into\t record\t the
\njudgment of the Addl.  Sessions Judge in appeal against\t the
\njudgment  of  Shri  Thakur on which the\t contemner  had\t not
\nrelied\tbut which, was called form by the High\tCourt  while
\nhearing the contempt action, and that averments of facts  in
\nthe  appellate judgment of the Addl.  Sessions\tJudge  could
\nnot have been utilised to hold that even if the. conclusions
\nof  Shri Thakur were erroneous they were not such  as  could
\nnot  have  been reached judicially by  him.   The  offending
\npamphlet  was published after the appeal  preferred  against
\nthe judgment of Shri Thakur was allowed by the learned Addl.
\nSessions Judge and the conviction and sentence of
\n502<\/span>
\nthe accused were set aside.  As the judgment of Shri  Thakur
\nwas  the  focal\t point of attack by the\t contemner,  it\t was
\nimperative for the High Court to take into consideration the
\nappellate  judgment against the judgment under attack so  as
\nto  satisfy  itself whether the judgment was  so  manifestly
\nincorrect or perverse as to merit a scurrilous attack on it.
\nThe submission of-the contemner that the appellate  judgment
\nshould not have been taken into consideration has no merit.
\nIf  the two questions extracted above are read by  consumers
\nof judicial service what effect is likely, to., be caused on
\ntheir  minds ? On reading a judgment if it appears that\t the
\njudgment read as a whole discloses a wayward bend of mind of
\na judge which forces a wayward pen even if it is a  contempt
\nit could be ignored because it is a conclusion reached on  a
\nfair  reading  of the judgment which consumers\tof  judicial
\nservice\t have a right to comment upon.\tBut to say that\t the
\njudge with a wayward bend of mind has wielded at wayward pen
\nis nothing short of imputing a deliberate motivated approach
\non  the\t part  of the judge which  is  other  than  judicial
\nindicating  lack  of  dispassionate  analysis  and  judicial
\nobjectivity.   Similarly to say that the judgment  proceeded
\nin  one\t direction  but\t thereafter  the  judgment  took   a
\nsomersault because be bad resolved to convict the accused in
\nspite  of  there being no evidence would  clearly  insinuate
\nthat  the issues were prejudged by the judge.  There  is  no
\ngreater\t calumny or infamy for a judge bound by the oath  or
\nduties)\t of  his  office not to decide a  matter  on  record
\nplaced before him judicially which imply dispassionately and
\nobjectively.  Prejudging an issue is the very anti-thesis of
\na judicial process.  To accuse a judge that he proceeded  to
\nreach  a  conclusion because of his preconceived  notion  or
\nprior resolution is to accuse him of an entirely injudicious
\napproach.   The conclusion, therefore, reached by  the\tHigh
\nCourt  that  the  criticism  of the  judgment  made  by\t the
\ncontemner was wholly unjustified, is unexceptional.
\nThe  contemner\tstrenuously contended that actuated  by\t the
\nmost laudable object of contributing to the establishment of
\nrule of law in our democratic polity, an ideal cherished  by
\nour  Constitution  and established for\tthe  benefit-of\t the
\nrural backward population, the very fact which has  appealed
\nto  the High Court in convicting the appellant a  member  of
\nthe legal fraternity for contempt, he published the pamphlet
\nfairly commenting on the merits of a case already decided so
\nthat   people’s\t faith\tin  administration  of\tjustice\t  is
\nvindicated.  Even prior to the enactment of the Contempt  of
\nCourts\tAct<\/a>,  1971,  a\tfair and  reasonable  comment  of  a
\njudicial act did not constitute contempt and this  cherished
\nand  noble facet of the larger liberty of freedom of  speech
\nand   expression  enshrined  in\t Article  19(1)(a)<\/a>  of\t the
\nConstitution  has found its echo in s. 5<\/a> of the Contempt  of
\nCourts Act which provides that a person shall not be  guilty
\nof contempt of court.for publishing any fair comment on\t the
\nmerits of any case which has been heard and finally decided.
\nWhat  constitutes fair comment and what are  its  peripheral
\nlimits beyond which the comment ceases to be fair and strays
\ninto the  forbidden  field  inviting penalty, has  been\t the
\nsubject-matter of a catena  of decisions.  The limit of fair
\ncomment being
\n503<\/span>
\nan integral part of the larger liberty of freedom of  speech
\nand  expression\t it could not be put  in  a  straight-jacket
\nformula\t or converted into a master-key which will open\t any
\nlock.\tMore  or  less it would depend upon  the  facts\t and
\ncircumstances of each case, the situation and  circumstances
\nin  which the comment was made, the language  employed,\t the
\ncontext\t  in  which  the  criticism  was  offered  and\t the
\npeople\tfor whose benefit the exercise was  undertaken,\t and
\nthe  effect it will produce on the litigants and society  in
\nrelation to courts and administration of justice.
\nBefore\twe  examine the most important\tsubmission  in\tthis
\ncase  ,\t that  the contemner had  merely  published  a\tfair
\ncomment\t on  the merits of a case which had been  heard\t and
\nfinally\t decided, a submission made by Mr. Shroff on  behalf
\nof  the\t respondent  may be briefly  disposed  of.   It\t was
\nsubmitted  that\t in  order  to\tattract\t s.  5<\/a>\tit  must  be
\naffirmatively  shown  that  the case  in  respect  of  which
\ncomments were offered Was heard and finally decided and that
\nthe  expression heard and finally decided, would  comprehend
\nthat  the  limitation for appeal had also  expired  and\t the
\njudgment  had  become final inter partes.   Proceeding\tfrom
\nthis  angle  it\t was said that the judgment  in\t appeal\t was
\nrendered by the Addl.  Sessions Judge on 23rd December\t1973
\nand  the offending publication saw the light of the  day  on
\n1st  January 1974 and that the limitation for appeal by\t the
\nState  against\tthe order of acquittal being  90  days,\t the
\nlimitation  had not expired and, therefore, it could not  be
\nsaid  that  the\t case  was  finally  decided.\tMr.   Shroff
\nsubmitted  with\t due deference to the contemner\t who  is  an
\nadvocate that the timing of the publication was deliberately
\nchosen with a view to forestalling the appeal that the State
\nmight  contemplate.   There is considerable  force  in\tthis
\nsubmission  of Mr. Shroff but we do not propose to  deny  to
\nthe contemner the benefit of s. 5<\/a> if in fact he is  entitled
\nto it on the short ground that the case was not finally\t de-
\ncided.\tExplanation appended to s. 3<\/a> would clearly show that
\nthe, proceeding either civil or criminal shall be deemed  to
\ncontinue  to  be  pending  until it  is\t heard\tand  finally
\ndecided,  that\tis  to say, in a case  where  an  appeal  or
\nrevision is competent, until the appeal or revision is heard
\nand  finally  decided  or, where no appeal  or\trevision  is
\npreferred,  until  the period of limitation  prescribed\t for
\nsuch  appeal  or revision has expired.\t Obviously,  on\t 1st
\nJanuary 1974 the limitation for preferring an appeal by\t the
\nState  against the order of acquittal had not  expired\tand,
\ntherefore,  Explanation to s. 3<\/a> would be clearly  :attracted
\nand the proceeding could be said to be pending and could not
\nbe  said to be heard and finally decided.  However,, as\t the
\nHigh ‘,Court has not shut out the defence of fair comment on
\nthe  short ground that the proceeding was pending, we  would
\nnot  refuse to ,examine the defence of fair comment  if\t the
\nappellant is in a position to substantiate the same.
\nThe  High  Court has held the contemner guilty\tof  criminal
\ncontempt in that by the offending publication the  contemner
\nhas scandalised or tended to scandalise or lowered or tended
\nto  lower  the authority of the Court and  it  substantially
\ninterferes the due course of justice.  Contempt jurisdiction
\nis a special and to some
\n504<\/span>
\nextend\tan  unusual  type  of  jurisdiction  where  in\t the
\nprosecutor  and,  the judge are combined in  one.   To\tsome
\nextent it trenches upon the fundamental right of free speech
\nand  expression and stifles criticism. of a  public  officer
\nconcerned with administration of public justice in discharge
\nof his public duty.  In the words of Krishna Iyer, J :\t“the
\ncornerstone of the contempt law is the accommodation of\t two
\nconstitutional\tvalues,\t the right of free speech.  and\t the
\nright  to  independent justice.\t The  ignition\tof  contempt
\naction should be substantial and mala fide interference with
\nfearless  judicial  action,  not  fair\tcomment\t or  trivial
\nreflections  on the judicial process and  personnel”  (vide
\nBaradakanta v. Registrar, Orissa High<\/a> Court).(1)  Therefore,
\nthe contempt jurisdiction has to be sparingly exercised with
\nutmost\t  restraint   and    considerable    circumspection.
\nUndoubtedly,  judges and courts are alike open to  criticism
\nand  if\t reasonable  argument or  expostulation\t is  offered
\nagainst\t any judicial act as contrary to law or\t the  public
\ngood,  no  court could or would treat that  as\tcontempt  of
\ncourt,\tvide Queen v. Gray.(2) No criticism of\ta  judgment,
\nhowever vigorous, can amount to contempt of court, providing
\nit  keeps within the limits of reasonable courtesy and\tgood
\nfaith,\tvide  Regina  v.  Commissioner\tof  Police  of\t the
\nMetropolis, exparte Blackburn.(3) Lord’ Denning, M.R. in the
\nsame case further observed that “those who comment can\tdeal
\nfaithfully  with  all that is done in a\t court\tof  justice.
\nThey  can  say\tthat  we are  mistaken,\t and  our  decisions
\neffoneous, whether they are subject to appeal or not.” After
\nreferring to these, cases, the contemner drew our  attention
\nto  the\t celebrated passage ofLord Atkin in  Andre  Paul  v.
\nAttorney-General<\/a>(4), which has almost become a classic.\t  It
\nreads as under
\n\t      “But where the authority and position    of an
\n\t      individual Judge or the due administration  of
\n\t      justice\t is concerned, no wrong is committed
\n\t      by any member of\t   the public who  exercises
\n\t      the  ordinary  right of  criticising  in\tgood
\n\t      faith in private or public the public act done
\n\t      in the\t seat\tof  justice.  The  path\t  of
\n\t      criticism is a public way :    the       wrong
\n\t      headed are permitted to err therein : provided  that
\n\t      members  of the public abstain  from  imputing
\n\t      improper\t motives to those taking part in the
\n\t      administration  of justice, and are  genuinely
\n\t      exercising a right of criticism and not acting
\n\t      in   malice  or  attempting  to\timpair\t the
\n\t      administration  of justice, they\tare  immune.
\n\t      Justice is not a choistered virtue : she\tmust
\n\t      be   allowed  to\t‘suffer\t the  scrutiny\t and
\n\t      respectful, even though outspoken, comments of
\n\t      ordinary men”.\n<\/p>\n
In  Perspective Publications Pvt.  Ltd. & Anr. v.  State  of
\nMaharashtra<\/a>,(5) a Bench of three judges of this Court, after
\nreferring to
\n(1)  A.I.R. 1974 S.C. 7 10 at 7 3
\n(2)  (1900) 2 Q.B. 36 at 40.\n<\/p>\n
(3)  (1968) 2 Weekly Law Reports 1204 at 1207.
\n(4)  A.I.R. 1936 P.C. 141 at 145-146.\n<\/p>\n
(5)  [1969] 2 S.C.R. 779 at 791, 792.\n<\/p>\n
505<\/span><\/p>\n
the leading cases on the subject, formulated the  principles
\nwhich ,would govern cases of this kind.\t They read as under:\n<\/p>\n
\t      “(1)  It\twill  not  be  right  to  say\tthat
\n\t      committals  for contempt for sacndalizing\t the
\n\t      court have become obsolete.\n<\/p><\/blockquote>\n
\t      (2)   The\t summary  jurisdiction\tby  way\t  of
\n\t      contempt must be exercised with great care and
\n\t      caution\tand  only  when\t its   exercise\t  is
\n\t      necessary for the proper administration of law
\n\t      and justice.\n<\/p><\/blockquote>\n
\t      (3)  It  is open to anyone  to  express  fair,
\n\t      reasonable and legitimate criticism of any act
\n\t      or conduct of a judge in his judicial capacity
\n\t      or  even to make a proper and fair comment  on
\n\t      any decision given by him because “justice  is
\n\t      not  a  cloistered  virtue  and  she  must  be
\n\t      allowed to suffer the scrutiny and respectful,
\n\t      even  though outspoken, comments\tof  ordinary
\n\t      men”.\n<\/p><\/blockquote>\n
\t      (4) A distinction must be made between a\tmere
\n\t      libel  or\t defamation  of\t a  judge  and\twhat
\n\t      amounts to a Contempt of the court.
\n\t      The  test\t in each case would be\twhether\t the
\n\t      impugned\tpublication  is\t a  mere  defamatory
\n\t      attack   on  the\tjudge  or  whether   it\t  is
\n\t      calculated     to\t   interfere\twith\t the
\n\t      administration   of  justice  or\tthe   proper
\n\t      administration of law by his part.  It is only
\n\t      in the latter case that it will be  punishable
\n\t      as contempt.\n<\/p><\/blockquote>\n
\t      (5) Alternatively the test will be whether the
\n\t      wrong is done to the judge personally or it is
\n\t      done  to\tthe  public.   To  borrow  from\t the
\n\t      language of Mukherjea, J. (as  he\t then\twas)
\n\t      (Braluma\tPrakash\t Sharma’s case,\t (1953)\t SCR
\n\t      1169,   the  publication\tof   a\t disparaging
\n\t      statement\t will be an injury to the public  if
\n\t      it  tends\t to create an  apprehension  in\t the
\n\t      minds  of the people regarding the  integrity,
\n\t      ability  or fairness of the judge or to  deter
\n\t      actual and prospective litigants from  placing
\n\t      complete\t  reliance    upon    the    court’s
\n\t      administration  of justice or if it is  likely
\n\t      to  cause\t embarrassment in the  mind  of\t the
\n\t      judge himself in the discharge of his judicial
\n\t      duties”.\n<\/p><\/blockquote>\n
Applying the aforementioned formulated tests to the facts of
\nthis case, could it be said that the  extracted\t offending
\npassages  with\ta  tinge of  sarcasm  offer  reasonable\t and
\nlegitimate criticism of a case which was heard and  finally
\ndecided ? Fair and reasonable criticism of a judgment  which
\nis  a public document or which is a public act of a  Judge
\nconcerned   with   administration  of  justice\t would\t not
\nconstitute
\n506<\/span>
\ncontempt.  In fact, such fair and reasonable criticism\tmust
\nbe  encouraged because after all no one, much  less  Judges,
\ncan  claim  infallibility.  A fair  and\t reasonable  comment
\nwould even be helpful to the judge concerned because he will
\nbe  able  to  see  his\town  shortcomings,  limitations\t  or
\nimperfection   in  his\twork.\tThe  society  at  large\t  is
\ninterested  in the administration of public justice  because
\nin  the\t words\tof Benjamin Cardozo, “the  great  tides\t and
\ncurrents  which engulf the rest of men do not turn aside  in
\ntheir  course and pass the judges by” (Benjamin N.  Cardozo-
\nThe   Nature  of  the  Judicial\t Process,  p.  168).\tSuch
\npermissible.  criticism\t would\titself\tprovide\t a  sensible
\nanswer\tto  sometimes ill-informed criticism  of  judges  as
\nliving\tin ivory towers.  But then the criticism has  to  be
\nfair  and  reasonable.\tSuch a criticism may  fairly  assert
\nthat  the  judgment  is\t incorrect  or\tan  error  has\tbeen
\ncommitted both with regard to law or established facts.\t  It
\nis one thing to say that a judgment on facts as disclosed is
\nnot  in\t consonance with evidence or the law  has  not\tbeen
\ncorrectly applied.  Ordinarily, the judgment itself will  be
\nthe subject-matter of criticism and not the judge.  But when
\nit  is said that the judge had a pre-disposition to  convict
\nor  deliberately  took\ta turn\tin  discussion\tof  evidence
\nbecause\t he had already resolved to convict the accused,  or
\nhe has a wayward bend of mind, is attributing motives,\tlack
\nof  dispassionate and, objective approach and  analysis\t and
\npre-judging of the, issues, which would bring administration
\nof  justice  into ridicule if not infamy.   When  there\t is’
\ndanger\tof  grave  mischief  being done\t in  the  matter  of
\nadministration\tof  justice,  the  animadversion  cannot  be
\nignored and viewed with placid equanimity.  If the criticism
\nis likely to interfere with due administration of justice or
\nundermine the confidence which the public rightly repose  in
\nthe courts of law as courts of justice, the criticism  would
\ncease  to, be fair and reasonable criticism as\tcontemplated
\nby  s.\t5<\/a>  but would  scandalise  courts  and  substantially
\ninterfere with administration of justice.  As said in Gray’s
\ncase,  (supra) any act done or writing published  calculated
\nto bring the court or judge of the court into contempt or to
\nlower  his  authority is a contempt of\tthe  court,  because
\nnothing\t is  more  pernicious in its  consequences  than  to
\nprejudice the mind of the public against judges of the Court
\nresponsible for dispensing justice.\n<\/p>\n
it  is\talso to be borne in mind the setting  in  which\t the
\ncourt is functioning and the attack on the administration of
\njustice.   In  this country justice at grass-root  level  is
\nadministered  by  courts  set up  in  rural  backward  areas
\nlargely inhabitated by illiterate, persons.  It is they\t who
\nbring  their problems to the court for resolution  and\tthey
\nare  the litigants, or consumers of justice service.   Their
\nsusceptibility is of a different ,-type than the urban elite
\nreading newspaper and exposed to wind ofchange or even\twind
\nof   criticism.\t   The\tpeople\tin  rural   backward   areas
\nunfortunately\t illiterate   have   different\t kinds\t  of
\nsusceptibilities.   A  slight suspicion that  the  judge  is
\npredisposed or approaches the case with a closed mind or has
\nno  judicial  disposition  would  immediately  affect  their
\nsusceptibilities  and  they  would lose\t confidence  in\t the
\nadministration\tof justice.  There is no greater  harm\tthan
\ninfusing or instilling in the minds of such people a lack of
\nconfidence  in\tthe character and integrity  of\t the  judge.
\nConversely, it makes the task of the judge extremely
\n507<\/span>
\ndifficult  when\t operating in such area.  In this  case\t the
\nsetting\t is in a small backward rural area in the, State  of
\nMadhya\tPradesh and which aspect has especially appealed  to
\nthe  High  Court  in  adjudging\t the  appellant\t guilty\t  of
\ncontempt.  Again, the contemner is a lawyer belonging to the
\nfraternity of noble and liberal profession.  A criticism  by
\nhim  would attract greater attention than by others  because
\nof  his\t day-to-day  concern  with  the\t administration\t  of
\njustice,  in  that  area and his belief\t about\tthe  judge’s
\njudicial  disposition would adversely affect a large  number
\nof persons.  Therefore, when in such a back-round it is said
\nthat  the  judge  has a wayward bend of mind  and  wields  a
\nwayward\t pen  and  that he took a  deliberate  turn  in\t the
\ndiscussion  of evidence because he had resolved\t to  convict
\nthe  accused would indicate that the judge has\tno  judicial
\ndisposition  and  that he pre-judges the  issues  and  there
\ncannot be a greater infamy and calumny apart from the, judge
\nof  the Court.\tPeople around would lose all  confidence  in
\nhim  and  in  the ultimate analysis  the  administration  of
\njustice\t would\tconsiderably suffer, and,  therefore,  would
\nconstitute contempt.\n<\/p>\n
The   contemner\t further  submitted  that  prosecution\t for
\ncontempt for scandalising the court has become obsolete.  We
\nneed not examine this submission in detail.  In\t Perspective
\nPublications’ case (supra) after examining this argument and
\nconsidering  the  leading decisions it has  been  said\tthat
\nprosecutions for scandalising court have not become obsolete
\nand we are in respectful agreement with it.
\nIt was next contended that even if the comments made by\t the
\nappellant appear in bad taste or that they are outspoken  or
\nblunt, in view of s. 13<\/a> no sentence can be imposed upon him
\nfor contempt unless the court is satisfied that the contempt
\nis  of\tsuch a nature that it  substantially  interferes  or
\ntends  substantially  to interfere with the  due  course  of
\njustice.    After  drawing  our\t attention  to\tBridges\t  v.
\nCalifornia(1),\tin which it is said that the judges must  be
\nkept mindful of their limitations and their ultimate  public
\nresponsibility\tby  vigorous stream of\tcriticism  expressed
\nwith  candor however blunt, it was said that we should\tbear
\nin  mind the most laudable object with which  the  contemner
\npublished  the comments and in his enthusiasm for  a  public
\ncause, viz., establishment of rule of law in backward  area,
\nand,  therefore,  even if he had strayed slightly  from\t the
\npath  of rectitude, the case does not call for\tsentence  as
\ncontemplated  by s. 13<\/a> of the Contempt of Courts Act.\tThis
\nsubmission  cannot be fully answered unless we refer to\t one
\naspect\tof  the matter which the High Court has\t taken\tinto
\nconsideration  and  which  we  were  keen  to  avoid.\t The
\nappellant is a practicing advocate and is a mature old\tnips
\nhaving had the experience of long, practice at the Bar.\t  If
\nhe  was dissatisfied with the judgment a s he was  appearing
\nfor   the  accused  who\t were  convicted  by   the   learned
\nMagistrate, the proper course was to prefer an appeal  which
\nhe  did adopt.\tAfter the appeal was allowed, the  appellate
\njudgment  was  bound to be sent to the trial court  and\t the
\nerror  of the Magistrate must have been pointed out.  If  be
\nwas  still  not satisfied, it was open to the  contemner  to
\nsubmit a petition to the High Court as envisaged by s. 6<\/a>. of
\nthe  Contempt  of  Courts Act<\/a>,\t1971.\tAssuming  that\tthis
\ncourse, was
\n(1) [1941] 334 U.S. 252.\n<\/p>\n
508<\/span><\/p>\n
an optional one and in the words of Lord Denning, silence is
\nnot  an option when things are ill-done, he, actuated  by  a
\ndesire\tto serve the public cause, came out with a  pamphlet
\ncriticising  the  judgment, looking to\tthe  language  used,
\ncould  he  be  said  to\t have  slightly\t erred\tor   strayed
\nmarginally  from  the  path  of\t rectitude  Conceding\tthat
\njudges.must suffer criticism willingly, it is not the  ques-
\ntion of their personal villifficafion but the effect it\t has
\non  the\t administration\t of  public  justice  which  is\t the
\ncornerstone   of  contempt  action.   The  judge   villified
\nrelevant to his judgment would always shudder at the idea of
\nwriting\t a judgment which cannot meet the high\tstandard  of
\nthe  present contemner. in fact the  vituperative  language
\nwas the outcome of a defeated advocate which appeared to  be
\na  very\t serious  matter  to the High  Court  more  so\twhen
\nconcerned  with a mofussil place where there are one or\t two
\ncourts\tand  a few lawyers, and the  litigating\t public,  is
\nmostly illiterate or poorly educated, and it is such a thing
\nwhich  could  not be ignored or allowed to  pass  by.\tSuch
\ncriticism  is  bound  to substantially\tinterfere  with\t due
\ncourse of justice because in the opinion of the High  Court,
\nwith  which we are in agreements the pamphlet  published  by
\nthe  contemner was highly mischievous.\tTherefore,  this  is
\nnot  a\tfit  case  for\tgiving benefit of  S.  1<\/a>  8<\/a>  to\t the
\ncontemner.\n<\/p>\n
The contemner did not recant either before the High Court or
\neve  before  us.   Even then the  question  is\twhether\t the
\nsentence of fine of Rs. 1000\/  is called for in this  case.
\nThe contemner also ‘showed some other pamphlets which he had
\npublished.   Either  he\t is trying to  impose  himself\tupon
\ncourts\tor in his mistaken zeal he is  publishing  pamphlets
\ncriticising judgments of the courts.  We are mindful of\t the
\nfact that the judges must be feeling extremely\tinconvenient
\nwhenever the contemner must be appearing before them but  we
\nmust  not be oblivious to the fact that the path of  justice
\nis not strewn with roses and justice being not a  cloistered
\nvirtue,\t it  must  be allowed to  suffer  the  scrutiny\t and
\nrespectful, even though outspoken, comments of ordinary men,
\nmore   so,   by\t lawyers  who  are  directly   involved\t  in
\nadministration\t of   justice.\t  While,   therefore,\t not
\nexonerating the contemner, we think a token punishment would
\nserve  the  ends of justice because if the  contemner  while
\npursuing his object zealously is required to be kept to\t the
\npath of rectitude, a token fine will also consciously remind
\nthe  contemner\tthat he is not a gentle map at\tlarge.\t We,
\ntherefore,  modify the sentence of fine awarded by the\tHigh
\nCourt  and impose a token fine of Re. 1\/- on the  contemner,
\nin default to suffer simple imprisonment for a week.
\nAccordingly, this appeal is partly allowed.  We, confirm the
\nconviction of the appellant contemner for contempt of court,
\nbut modify the sentence directing him to pay a fine of Re. 1
\n\/-,  in\t default to suffer simple imprisonment for  a  week.
\nThe fine, if already paid, balance shall be refunded to him.
\nIn the circumstances of the case, there shall be no order as
\nto costs
\n\t\t\t Appeal partly allowed.\n<\/p>\n
P.H.P.\n<\/p>\n
509<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rama Dayal Markarha vs State Of Madhya Pradesh on 14 March, 1978 Equivalent citations: 1978 AIR 921, 1978 SCR (3) 497 Author: D Desai Bench: Desai, D.A. PETITIONER: RAMA DAYAL MARKARHA Vs. RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT14\/03\/1978 BENCH: DESAI, D.A. BENCH: DESAI, D.A. FAZALALI, SYED MURTAZA CITATION: 1978 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-261775","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRama Dayal Markarha vs State Of Madhya Pradesh on 14 March, 1978 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rama-dayal-markarha-vs-state-of-madhya-pradesh-on-14-march-1978\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rama Dayal Markarha vs State Of Madhya Pradesh on 14 March, 1978 - 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