Report No. 200
Kapur J further observed:
"In the present case all that happened was that there was a first information report made to the police in which certain suspects were named; they were not arrested; investigation was started and on the date when the offending article was published no judicial proceedings had been taken or were contemplated against the persons named in the information report. Indeed after the investigation the suspects named in that report were not sent up for trial. At the date of this offending publication was made, there was no proceeding pending in a court of law nor was any such proceeding imminent."
A reading of the above observations shows that the date of filing of a first information report under Section 154 of the Code of Criminal Procedure Code cannot be the starting point for treating a criminal proceeding as pending, still there could be contempt if criminal proceedings are 'imminent'. In that case in the charge sheet, some of the names referred to in the first information report were not included. In order that publications are in contempt, they must be such as would "substantially" interfere with the due course of justice.
It is not necessary to show that as a matter of fact a Judge or Jury will be prejudiced by the offending publication but the essence is whether the publication was calculated to produce an atmosphere of prejudice in the midst of which the proceeding will have to go on and has a tendency to interfere with the due course of justice or to prejudice mankind against persons who are on trial or who may be brought to trial. It must be used to preserve citizens' right to have a fair trial of their causes and that the proceedings arecarried in an atmosphere free of all prejudice or prepossession.
It will be contempt if there is a publication of any news or comments which have a tendency to or are calculated to or are likely to prejudice the parties or their cause or to interfere with course of justice. As to when proceedings begin or when they are imminent must depend upon the circumstances of each case. It was felt that the exact boundaries do not fall for decision in the case. Apart from the facts in information report, various other facts have to be proved. In the above case, the first information report alone was there but, it was stated, that none was arrested as on the date of the publication. Nor was any proceeding pending in Court.
(b) In the second case in A.K. Gopalan v. Noordeen 1969(2) SCC 734 already referred to, an investigation was going on against a person into a charge of murder. We have referred to the case earlier but, we shall discuss the judgment in greater detail in the context of the editorial note in SCCin that case.
The accused was arrested on September 23,1967. While the statement of Mr.A.K. Gopalan about the arrested person was made on 20th September 1967, the first information was lodged on 11th September 1967 but the accused was not arrested while by the date of publication in the newspaper, they were arrested. The Supreme Court held that Mr.A.K. Gopalan was not guilty of contempt and so far as the printers and publishers were concerned, the Court took the view that the question was whether proceedings in a court were imminent?
The Court "referred" to arrest in a serious cognizable case i.e. one of alleged murder, and stated that 'arrest' means that the police was prima facie on the right track. It also referred to the fact that the accused must have been produced before a Magistrate within 24 hours of the arrest in accordance with Article 22 of the Constitution and the Magistrate must have authorized further detention of the accused.
The Court stated "In these circumstances, it is difficult to say that any proceedings in a court were not imminent".
Not only that, the Supreme Court stated further:
"The fact that the police may have, after investigation, come to the conclusion that the accused was innocent does not make the proceedings any the less imminent".
Why publication could subvert the course of justice was:
"because it would tend to encourage public investigation of a crime and a public discussion of the character and antecedents of an accused in detention."
The Court also observed that it is not in every case when a person is arrested, a proceeding in a court can be said to be imminent because there could be delay in the scrutiny of accounts may take time. If it is a case against a company, a large number of accounts may have to be investigated by the police and criminal proceedings may not be imminent in spite of arrest. On that ground the Court said:
"as observed by this Court, it is difficult to lay down any inflexible rule".
It then said:
"But, as far as an investigation of a charge of murder is concerned, once an accused has been arrested proceedings in Court should be treated as imminent".
(Mitter, J however, held even Mr.A.K. Gopalan guilty of contempt.)
It is the above observations that appear to be the basis of the editorial comment in SCC.
However, it appears to be the law declared by the Supreme Court in A.K. Gopalan's case that the fact that an arrest under Section 41 of the Cr.PC has been made may be prima facie proof that criminal proceedings are 'imminent'.
But, it is true the Court made an observation that there can still be exceptions where notwithstanding an arrest, criminal proceedings may not be imminent such as where a mass of accounts of a company are to be scrutinized or investigated before charge sheet is filed under Section 173. Those observations deal with a delayed time factor but that does not, in our opinion, mean that in the case of (say) arrest of a company's Director, there can be prejudicial publications because of delay in the filing of chargesheet. This requires a proper meaning being given to the word 'imminent'.
In our view, the word 'imminent' does not mean merely that the charge sheet must be filed in Court "immediately" after arrest. 'Imminent' here mans the 'reasonable likelihood' of the filing of charge sheet whether immediately or in a reasonable time. If the word 'imminent' should mean "immediate", then in all cases where there are delays in investigation such as when investigation is entrusted to the CBI or the ACB in the States, there could be a free licence to issue prejudicial publications. That cannot be the law. 'Imminence', in our view, really means 'reasonable likelihood' of filing of charge sheet.
But we are not saying that once arrest is made, the media is obliged to make no publications at all. What the law requires is that they should not, while making publications, prejudice the case of the suspect by referring to his character, prior convictions, confessions, photographs (where identity is in question) or describe him as guilty or innocent (see Chapter IX). Further, section 3 grants immunity to publications made without knowledge of the pendency of the criminal proceeding.
Nor is the editorial note correct in suggesting that the word 'imminence' requires a person who wants to make a prejudicial publication to go to the police station or to somehow find out if the police had come to a preliminary conclusion to file a charge sheet. Such an interpretation of the word 'imminent' is a highly unreasonable one and impracticable. We do not see any problem in understanding that 'imminence' in respect of a person who is 'arrested' means that he is "most likely" to be charge sheeted.
Further, as stated below, 'arrest' is important in another sense because of the 24 hour rule which we shall presently discuss. This is a constitutional requirement that a person arrested has to be produced before a magistrate within 24 hours of the arrest. Today, the word 'imminent' is understood as being a stage when a person comes within the constitutional protection of a Court after arrest. (see heading 'B' below).