Report No. 200
How 'imminent' Criminal Proceedings came to be excluded from The Contempt of Courts Act, 1971: A Historical and Important Perspective
Section 3(2) of the Contempt of Court Act, 1971 read with the Explanation below the section (see Chapter II of this Report) excludes from criminal contempt, all publications made, before the filing of charge sheet or challan in court or before issue of summons or warrant, even if such publications interfere or tend to interfere with the course of justice.
In King v. Mirror 1927(1) KB 845, the accused was arrested on January 9, and within 24 hours, brought before the Court on January 10 and investigation started and on January 13, an identification parade was held. Offending photographs were published on January 17. It was held that proceedings have begun. But the question of imminence of criminal proceedings was not decided.
In King v. Parke: (1903) 2 KB 432, it was held that there would be contempt of the assize Court even though no committal had taken place and a bill had been filed. What possible difference can it make, whether a particular Court which is thus sought to be deprived of its independence and its power of effecting the great end for which it is created, be it at the moment in session or even actually constituted or not? It was in this case that Wills J. made the famous observation:
"It is possible very effectively to poison the fountain of justice before it begins to flow. It is not possible to do so when the stream has ceased."
(See Law of Contempt of Court by K.J. Aiyer, 6 th Ed, 1983 for the above analysis of Indian case law. But, today this is not good law, the date of arrest rather than the filing of first information report, is the starting point of 'pendency' as per judgment of our Supreme Court.)
Question is whether such exclusion amounts to over-protection of freedom of expression and dilution of the protection of due process for fair criminal trials?
It is first necessary to go into the historical basis of the exclusion of prejudicial publications made prior to filing of charge sheet or challan from the purview of Contempt of Court Act, 1971. A historical perspective will lay bear how such exclusion, as stated above, from contempt liability come into being and whether such exclusion was justified?