Sammbhu Nath Jha Vs. Kedar Prasad
Sinha & Ors [1972] INSC 24 (24 January 1972)
KHANNA, HANS RAJ KHANNA, HANS RAJ SHELAT,
J.M.
CITATION: 1972 AIR 1515 1972 SCR (3) 183 1972
SCC (1) 573
CITATOR INFO :
E&R 1978 SC 727 (41)
ACT:
Contempt of Court-Publication in Newspaper of
notification under s. 3 of Commissions of Inquiry Act, 1952 instituting inquiry
against erstwhile ministers of Bihar GovernmentAllegation in notification
against one of the ministers that he had against advice of officials ordered
withdrawal of prosecution of criminal case and on trial court refusing
permission to withdraw ordered filing of revision petition in High Court and
thereby interfered with course of justiceRevision filed in High Court by
accused also-Revisions pending in High Court at time of publication of
notification in Newspaper-Such publication whether constitutes contempt of
Court-Section 3(1) of Commissions of Inquiry Act whether makes it mandatory for
Government to publish notification in official gazette.
HEADNOTE:
The appellant who was a minister in the State
Government of Bihar issued to the press a copy of the notification published in
the Bihar Gazette Extraordinary dated March 12, 1968 whereby an inquiry had
been instituted, among others, against a former minister of the State
Government.
According to allegation No. J-4 in the
schedule annexed to the notification the said minister had by misuse of his
official position and power unnecessarily interfered with the administration of
justice in a serious case of rioting and Murder. It was alleged that he had,
against the opinion of the District Magistrate and the Law Secretary, ordered
the withdrawal of the prosecution against two of the accused and thereafter
when the Trial Court rejected the application for withdrawal he caused a
revision petition to be filed in the High Court. The Searchlight of Patna in
its issue of March 14, 1948 published the copy of the notification issued to it
by the appellant, including the schedule of allegations. An application was
filed on March 25, 1968 by the two accused aforesaid in the High Court for
initiating contempt of Court proceedings against several persons including the
appellant and the printer and publisher of Searchlight. It was urged by the
applicants that revision petitions filed by them and by the State Government
against the orders of the Trial Court refusing permission to withdraw the case
were pending in the High Court at the time of publication and since allegation
No. J-4 in the schedule to the notification was related to the subject matter
of the said revision petitions the publication constituted interference with
the Course of justice inasmuch as it had prejudiced mankind against them.
HELD : The Courts have power to take action
against a person who does an act or publishes a writing which is calculated to
bring a court or judge into contempt or to lower his authority or to obstruct
the course of justice or due administration of law. As intention of the
condemner to cause those consequences is not a necessary ingredient Of contempt
of court and it is enough to show that his act was calculated to obstruct or
interfere with the due course of justice and administration of law, there would
be quite number of cases where the contempt alleged would be of a technical
nature. In such cases, the court would exercise circumspection and judicial
restraint in the matter of taking action for contempt of court. The 184 court
has to take into account the surrounding circumstances and the material facts
of the case and on conspectus of them to come to a conclusion whether because
of some contumacious conduct or other sufficient reason the person proceeded
against should be punished for contempt of court. [189 E-G] Reg. v. Gray [1900]
2 Q.B. 36; E.M.S. Namboodripad v. T. N. Nambiar, [1970] S.C.C. 325; Re: P. C.
Sen, [1969] 2 S.C.R.
649; Debi Prasad Sharma and Ors. v. The King
Emperor, L.R.
70 I.A. at p. 224; Legal Remembrancer v.
Matital Ghose and Others, I.L.R. 41, Cal. 173, applied.
Plain reading of S. 3(i) of the Commissions
of Enquiry of Act makes it manifest that the notification appointing a
commission of inquiry must be published in the official gazette. It is an
imperative requirement and cannot be dispensed with. The commission of inquiry
is appointed for the purpose of making an inquiry into some matter of public
importance. The schedule containing the various allegations in the present case
was a part of the notification dated March 12, 1968 and specified definite
matter of public importance which were to be inquired into by the Commission.
As such the publication of the schedule in
the official gazette should be held to be in compliance with the statutory
requirement. The object of publication in an official gazette is twofold : to
give publicity to the notification and further to provide authenticity to the
contents of that notification in case some dispute arises with regard to the
contents. [190 G-H] In the present case no undue emphasis was given to any
portion of the notification as the whole notification as printed in the Gazette
was given to the newspaper for publication. Further, the subject matter of the
inquiry before the Commission as set forth in allegation No. J-4 was whether
there was any misuse of official position on the part of the Minister concerned
when he directed against the recommendation of the Law Secretary and the
District Magistrate, the withdrawal of the prosecution against the two accused
in question. The question for decision which however, was the subject of
criminal revision petitions pending in patna High Court was whether the order
of the magistrate dismissing the, application for withdrawal of prosecution was
contrary to law. The two matters were distinct and separate and not identical.
It may be that some of the matters which were connected with the criminal
revision petitions were the subject of inquiry by the commission of inquiry,
but that would not attract liability for contempt of court. [191 C-D] Jagannath
Rao v. State of Orissa, [1968] S.C.R. 789;
referred to.
The judgment of the High Court must
accordingly be set aside and the rule issued against the appellant for contempt
of court must he discharged. [192 C]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 30 of 1969.
Appeal by special leave from the judgment and
order dated the 12th August, 1968 of the Patna High Court in Original Criminal
Miscellaneous Petition No. 30 of 1968.
Basudev Prasad Sinha and B. P. Jha, for the
Appellant.
185 The Judgment of the Court was delivered
by KhannaJ. This is an appeal by special leave by Sammbhu Nath Jha who along
with two others has been found by the Patna High Court to be guilty of contempt
of court. In view of the fact that the contempt, in the opinion of the High
Court, was of a technical nature, the contemners were let off with a warning.
On January 2, 1966 a report was lodged with
the police by Lachho Paswan that when he and his brother Dwarka Paswan were
going to Jamui market, Kedar Prasad respondent abused them. Kedar Prasad also
exhorted others to assult Dwarka Paswan. An assault was then made upon Dwarka
Paswan and he was surrounded. Arjun Pandey thrust Saif in the chest of Dwarka
Paswan, as a result of which he died on the spot.
The motive for the assault was stated to be
that Lachho Paswan and Dwarka Paswan had voted against Kedar Prasad in the
election to the office of Mukhia. The police on the basis of that report
investigated the case and submitted a charge sheet for offences under sections
148 and 302 read with section 149 I.P.C. against a number of persons. No charge
sheet was submitted against Kedar Prasad and Arjun Pandey. During the course of
commitment proceedings, the committing magistrate ordered that Kedar Prasad and
Arjun Pandey be summoned for May 15, 1966 as accused.
Kedar Prasad and Arjun Pandey filed revision
petitions against the order of the committing magistrate, but the same was
dismissed by the Additional Sessions Judge, Monghyr is per order dated May 5,
1967. It was held that Kedar Prasad and Arjun Pandey had been rightly summoned.
After the dismissal of the revision petition,
an application was filed by the Assistant District Prosecutor on September 18,
1967 in the Court of the learned magistrate for withdrawal of the case against
Kedar Prasad and Arjun Pandey oil the ground that it was inexpedient for State
and public policy to prosecute them. After hearing the counsel for the
complainant and others, the committing magistrate dismissed the said
application oil October 6, 1967. It was observed that the application for
withdrawal of the prosecution amounted to an abuse and improper interference in
the normal course of justice.
Two revision petitions were filed against the
above order dated October 6, 1967. One of the revision petitions was filed by
the State of Bihar and the other was filed by one Abani Kumar Mandal. Both the
revision petitions were admitted by the High Court on November 30, 1967.
During the pendency of the above mentioned
criminal revision petitions, the Governor of Bihar as per notification dated
March -L864 SupCI/72 186 12, 1968 appointed a Commission of Inquiry consisting
of Shri T. L. Venkatarama Aiyer, retired judge of the Supreme Court, under
section 3 of the Commissions of Inquiry Act, 1952 (Act 60 of 1952) to inquire
into a number of charges against 14 persons who had earlier held the offices of
Chief Minister and ministers in the State of Bihar. One of the persons against
whom inquiry was ordered was Shri Hasibur Rahman who had held the office of
Minister during the period from March 16, 1967 to January 28, 1968. The
allegations which were the subject matter of the inquiry were set forth in the
schedule annexed to the notification. Allegation No.
J-4 which was the subject of inquiry against
Shri Hasibur Rahman was asunder:
"Shri Kedar Prasad Sinha and Shri Arjun
Pandey were facing prosecution along with nine others in a serious case of
rioting with murder which was pending before the Munsif-Magistrate, Jamui. They
filed a revision petition before the Additional Sessions Judge, Monghyr against
their prosecution, which was dismissed.
Thereupon on 6th June, 1967 they presented an
application direct to the then Minister for Law, Shri Hasibur Rahman, who
directed that the Law Secretary should examine the matter and report and in the
meanwhile the District Magistrate was requested to take two months' adjournment
of the case and also send the case diary with his report.
On 17th August, 1967, the District Magistrate
sent his report opposing withdrawal cf. the case. Even before the District
Magistrate's letter was diaries in the Law Department, Shri Hasibur Rahman
called for the file directly from the dealing assistant and ordered that a
telegram should be sent to the District Magistrate to take further adjournment
for a fortnight. The matter was then examined thoroughly by the officers of the
Law Department and in his note, dated 30th August, 1967, the Law Secretary
recommended against withdrawal of the prosecution pointing out that there was a
prima facie case and justice demanded that it Should be finished Out in Court.
Shri Hasibur Rahman, however ignored the
advice of the District Magistrate as welt as of the Law Secretary and ordered
on 10th September, 1967 that the case should be withdrawn. A petition for
withdrawal. was accordingly filed on 18th September, 1967, but was rejected by
the trial court. Thereupon Shri Hasibur Rahman directed that a revision should
be filed in the 187 High Court against the refusal of the trial court to allow
withdrawal of the case. A revision was accordingly filed, which is still
pending before the High Court.
"Shri Hasibur RaHman thus by misuse of
his official position and power unnecessarily interfered with the
administration of justice in a serious case of rioting with murder." The
notification relating to the appointment of the Commission of Inquiry along
with the schedule containing the different allegations was published in the
Bihar Gazette Extraordinary dated March 12, 1968. The same day the appellant,
who was one of the ministers of Bihar, gave for publication to the press a copy
of the notification, including the schedule of allegations. The said
notification along with the schedule of allegations was published in the
Searchlight of Patna in issues dated March 13, March 14 and March 15 of 1968.
Allegation No. J-4 relating to the withdrawal of case regarding Kedar Prasad
Sinha was published in the issue of Searchlight dated March 14, 1968.
Application dated March 25, 1968 was thereafter filed by Kedar Prasad and Arjun
Pandey for initiating contempt of court proceedings against 25 persons,
including the State of Bihar, the Chief, Minister and Ministers of Bihar, the
Chief Secretary of the Bihar Government as well as Shri Subhash Chandra Sarkar,
Editor and Shri Awadesh Kumar Tiwari, printer and publisher of the Searchlight.
The appellant was impleaded as respondent No. 3 in the application. It was
urged that the publication of allegation No. J-4 related to a matter which was
the subject matter of criminal revision petitions in the High Court and had the
result of interfering with the course of justice and prejudicing the mankind
against the two in applicants.
The learned judge who dealt with the
application held that no case for contempt of court had been proved against 22
out of 25 persons. The appellant was, however, found to be guilty of contempt
of court because it was he who had handed over the offending matter to the
press for publication in the newspaper. editor as also the printer and publisher
of the Searchlight too were found guilty because of the publication of the news
item in the aforesaid paper.
We have heard Mr. Basudev Prasad on behalf of
the appellant.
No one has appeared on behalf Of. the
respondents. After giving the matter our consideration, we are of the opinion
that the present is not a fit case wherein action should be taken for contempt
of court.
L-L864 Sup.CI/72 188 The law relating to
contempt of court is well-settled. Any act done or writing published which is
calculated to bring a court or judge into contempt or to lower his authority or
to interfere with the due course of justice or the lawful process of the courts
is a contempt of court [Reg. v.
Gray(1)]. The law of contempt as observed by
this Court in the case of E. M. S. Namboodripad v. T. N. Nambiar(2) stems from
the right of the courts to punish by imprisonment or fines persons guilty of
words or acts which either obstruct or tend to obstruct the administration of
justice. This right is exercised in India by all courts when contempt is
committed in facie curaie and by the superior courts on their own behalf or on
behalf of courts subordinate to them even if committed outside the courts.
Formerly, it was regarded as inherent in the powers of a Court of Record and now
by the Constitution of India, it is a part of the powers of the Supreme Court
and the High Courts. There are many kinds of contempts. The chief forms of
contempt are insult to judges, attacks upon them, comment on pending
proceedings with a tendency to prejudice fair trial, obstruction to officers of
courts, witnesses or the parties, abusing the process of the court, breach of
duty by officers connected with the court and scandalising the judges or the
courts.
The last form occurs, generally speaking,
when the conduct of a person tends to bring the authority and administration of
the law into disrespect or disregard. In this conduct are included all acts
which bring the court into disrepute or disrespect or which offend its dignity,
affront its majesty or challenge its majority.
The matter was also dealt with by this Court
Re : P. C. Sen(3) and it was observed :
"Contempt by speech or writing may be by
scandalising the Court itself, or by abusing parties to actions, or by
prejudicing mankind in favour of or against a party before the cause is heard.
It is incumbent upon Courts of justice to preserve their proceedings from being
misrepresented, for prejudicing the minds of the public against persons
concerned as parties in causes before the cause is finally heard has pernicious
consequences.
Speeches or writings misrepresenting the
proceedings of the Court or prejudicing the public for or against a party or
involving reflections on parties to a proceeding amount to contempt. To make a
speech tending to influence the result of a pending trial, whether civil or
criminal is a grave contempt.
Comments on pending proceedings, if emanating
from the parties or their lawyers, are generally a more serious contempt than
those coming from independent sources. The question in all cases of comment (1)
[1900] 2 Q.B 36. (2) [1970] S.C.C. 325.
(3) [1969] 2 S.C.R. 649.
189 .lm15 on pending proceedings is not
whether the publication does interfere, but whether it tends to interfere, with
the due course of justice. The question is not so much of the intention of the
contemner as whether it is calculated to interfere with the administration of
justice." Reliance in the above cited case was placed upon the following
observations of the Judicial Committee in the case of Debi Prasad Sharma and
Ors. v. The King-Emperor(1).
.lm15 ". . . the test applied by
the..... Board which heard the reference, was whether the words complained of
were in the circumstances calculated to obstruct or interfere with the course
of justice and the due administration of law." It has also to be borne in
mind, as observed in Re : P. C.
Sen(2), that ordinarily a court will not
initiate proceedings for commitment for contempt where there is a mere
technical contempt. This Court referred in the above context to tile observations
of Jenkins, C.J., in Legal Remembrancer v. Matilal Ghose and Others(3) that
proceedings for contempt should be initiated with utmost reserve and no court
in the due discharge of its duty can afford to disregard them.
It would follow from the above that the
courts have power to take action against a person who does ,in act or publishes
a writing which is calculated to bring a court or judge into contempt or to
lower his authority or to obstruct the due course of justice or due
administration of law. As intention of the contemner to cause those
consequences is not a necessary ingredient of contempt of court and it is
enough to show that his act was calculated to obstruct or interfere with the
due course of justice and administration of law. there would be quite a number
of cases wherein the contempt alleged would be of a technical nature. In such
cases, the court would exercise circumspection and judicial restraint in the
matter of taking action for contempt of court. The court Has to take into account
the surrounding circumstances and the material facts of the case and on
conspectus of them to come to a conclusion whether because of some contumacious
conduct or other sufficient reason the person proceeded against should be
punished for contempt of court.
Let us now examine the facts of the present
case in the light or what has been stated above. The gravamen of the charge
against the appellant is that during the pendency in theHigh Court of the two
revision petitions mentioned earlier, he handed over to the representatives of
the press for publication in the newspapers the (1) R. 70 1.A. at p. 224. (2)
[969] 2 S.C.R. 649.
(3) I.L.R. 41 Cal. 173.
190 notification, including the schedule of
allegations, which had been issued under section 3 of the Commissions of Inquiry
Act The learned judge in holding the appellant guilty of contempt of court
observed "But the mischief in this case was committed by publicizing the
said allegations with full knowledge that the two criminal revision petitions
were pending in this court and the question as to whether the withdrawal
petitions were bonafide or not was still to be considered by this court. I have
not been shown any statutory provision which lays down that allegations of the
nature contained in the offending matter must be printed in the official
gazette or in the public press." It would follow from the above that the decision
of the High Court was based upon the assumption that there was no statutory
provision which required that allegations of the nature contained in the
offending matter should be printed in the official gazette. Such an assumption
in our view was incorrect. The material part of sub-section (I) of section 3 of
the Commissions of Inquiry Act reads :
The appropriate Government may, if it is of
opinion it is necessary so to do, and shall if a resolution in this behalf is
passed by the House of the People or, as the case may be, the Legislative
Assembly of the State, by notification in the Official Gazette, appoint a
Commission of Inquiry for the purpose of making an inquiry into any definite
matter of public importance and performing such functions and within Such time
as may be specified in the notification. and the Commission so appointed shall
make the inquiry and perform the functions accordingly.
Plain reading of the above subsection makes
it manifest that the notification appointing a commission of inquiry must be
published in the official gazette. It is an, imperative requirement and cannot
be dispensed with. The commission of inquiry is appointed for the purpose of
making an inquiry into some matter of public importance. The schedule
containing the various allegations in the present case was a part of the
notification dated March 12, 1968 and specified definite matters of public
importance which were to be inquired into by the Commission. As such, the
publication of the schedule in the official gazette should be held to be in
compliance with the statutory requirement. The object of publication in
official gazette is twofold : to give publicity to the notification further to
provide authenticity to the contents of that notification case some dispute
arises with regard to the contents.
191 What was given to the press for
publication in the present case was the notification issued under section 3 of
the Commissions of Inquiry Act. The present is not a case wherein only part of
the notification or some portions of the allegations were given for publication
to the press with a view to give emphasis to any part of the allegation. On the
contrary, what was given to the press was the entire notification.
The subject matter of the inquiry before the
Commission as set forth in allegation No. J-4 was whether there was any misuse
of official position on the part of Shri Hasibur Rahman when he directed
against the recommendation of the Law Secretary and the District Magistrate,
the withdrawal of the prosecution against Kedar Prasad and Arjun Pandey. The
question for decision which, however, was the subject of criminal revision petitions
pending in Patna High Court was whether the order of the magistrate dismissing
the application for withdrawal of prosecution was contrary to law. The two
matters were distinct and separate and not identical. It may be that some of
the matters which were connected with the criminal revision petitions were the
subject of inquiry by the commission of inquiry, but that would not attract
liability for contempt of court. In the case of Jagannath Rao v. State of
Orissa(1) the appellant had challenged a notification issued under section 3 of
the Commissions of Inquiry Act appointing a Commission of Inquiry to inquire
into certain allegations against persons who had held the offices of Chief
Ministers and ministers in Orissa. An argument was advanced in that case that
one of the items of charges which were to be inquired into bay the commission
was the subject matter of an appeal pending in the High Court. Question arose
in that context whether the setting up of the commission of inquiry by the
State Government or the continuation of the inquiry by the commission would be
tantamount to contempt of court. This Court held that the above acts would not
constitute contempt of court and observed:
It was pointed out by this Court in Shri Ram
Krishna Dalmia v. Shri Justice S. R. Tendolkar(1) that the inquiry cannot be
looked upon as a judicial inquiry and the order ultimately passed cannot be
enforced proprio vigore. The inquiry and the investigation by the Commission do
not therefore amount to usurpation of the function of the courts of law. The
scope of the trial by the Courts of law and the Commission of Inquiry is
altogether different. In any case, it cannot be said that , the Commission of Inquiry
would be liable for contempt of Court if it proceeded to inquiry into matters
referred to it by the (1) [1968] 3 S.C.R. (2)[1959] S.C.R. 279.
5-L864SupC.I./72 192 Government Notification.
In appointing a Commission of Inquiry under section 3 and in making the inquiry
contemplated by the notification, the Commission is performing its statutory
due. We have already held that in the appointing of the Commission of Inquiry
the,, Government was acting bona fide. It is, therefore, not possible to accept
the argument of the appellants that the setting up of the Commission of Inquiry
by the State Government or tile continuance of the inquiry by the Commission so
constituted would be tantamount to contempt of Court." In our view the
judgment of the High Court cannot be sustained. We, therefore, accept the
appeal, set aside the judgment of the High Court and discharge the rule which
was issued against the appellant for contempt of court.
G.C. Appeal allowed.
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