SAMMBHU NATH JHA v. KEDAR PRASAD SINHA & Ors.

12, 1968 appointed a Commission of Inquiry consisting of Shri T. L. Venkatarama Aiyer, retired judge of the Supreme Cou1t, 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 ltte State of Bihar. One of the persOQ!i against whom inquiry was ordered was Shri Hasibur Rahman who had held the office of Minister duri, ng the period from March 16, 1967 to January 28, 1968. The allegations which were the subject matter of 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 as under: . were facing prosecution along with nine others "Shri Kedar Prasad Sinha and Shri Arjun Pandey in a serious case of rioting with murder which was pending before the Munsif-Magistrate, Jamui. They a revision petition !:¢fore the Additional Sessions Judge, Monghyr against their prosecution, which was dismissed. Thereupon on 6th June, 1967 they presented an appli cation direct to the then M~ster 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 Magistrale sent his report opposing withdrawal cf the case. Even before lhe District Magistrate's letter was diarised 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 ofikers 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 justice demanded that it 'houlcl be thrnshcd case and out in Court. Shri Hasibur Ral11m111, howcwr, ignored the advice of the District Magistrate as well us of the Law Secretary and ordered on 10th September, 1967 that the case should be withdrawn. A petition for withdrawal was accordingly filed on l 81h Scplemhrr, 1967, hut was re jected by trial court. Thereupon Shri Hasibur Rahman directed !hat ;1 revision should be filcJ in the A 8 c D E F G " A 8 c D E F G S, N.,JHA v. K. P. SINHA (Khallll(I, J.) 187 ·High Court against the refusal oi. 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 administration of justice in a senous case of rioting with murder.'' The notification relating to the appointment of the Commission of Inquiry along with the schedule containing the different allega tions 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 eopy _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 with drawal of case regarding Kedar Prasad SWia 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, th~ Chief Minister and Ministers of Bihar, the Chief Secretary of the Bihar Government as well as Shri Subhash Chandra Sarkar, Editor Jlnd Sbri Awadesh Kumar Tiwari, printer and publisher of the Searchlight. . The appellant was impleaded as respondent No. 3 ,\Jl the application. It was urged that the publication ·Of allegation No. J-4 related to a matter which was the subject matter o~ criminal revision peti tions in the High Court and had the result of interfering with the course of justice and prejudicing the mankind against the two applicants. The learned jud~e who dealt with the application held that no case for contempt of court bad been proved against 22 out of 25 persons. The appel!ant was, however, found to be guilty of con tempt of court, because it was be who had handed over the offond ing matter to the press for publication in the newspaper. Th" editor as also the printer and publisher of the Searchlight too were found ~uilty because of the publication of the news item in ·the aforesaid paper. H We have heard Mr. Basudev Prasad on behalf of the appellant. No one has appeared on behalf of the respondents. After givin~ the matter our consideration, we are of the opinion that the p·esent is .not a fit case wherein action should hie taken for contempt of court. 14-L864 Sup.Cl/72 188 SUPREME COURT REPORTS (1972] 3 S.C.R. The law relati.ng 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 con tempt of court [Reg, v. Gray( 1) ]. The law of contempt as ob served by this Court in the case of E. M. S. Namboodrlpad v. T. N. Nambiar(2) stems from the right of the courts to pu.nish by imprisonment or fines pers<Jtlls 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 bjeha.lf or on behalf of courts subordinate to them even if committed outside the courts. Fonnerly, it was regarded as inherent in the powers of a Court of Record and now by the Constitution of lndia, it is a part of the powers of the Supreme Court and the High Courts. There are many kinds of contempts. The chief fonns of contempt are insult to judges, attacks upo_n them, comment on peinding proceedings with a tendency to prejudice fair trial, obstruction to officers of courts, witnesiies or the parties, abusing the process of the court, bre, tch of duty by officers connected with tjle court and scandallsin~ the judges or the oourts. The last form occurs, gene rally speaking, when the conduct of a person tends to. bring the authority and administration of the Jaw into disrespect or disregard. Jn this conduct ate included a.Ii acts which btjng the court into distepute 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(') and it was observed : "Contempt by speech or writing may be by scandalis ing the Court itself, or J:ty 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 td' preserve their proceedings ffOJll being mis represented, for prejudicing the minds of the public against persons concerned as parties in causes befQre the cause is finally heard has pernicious consequences. Speeches or writings mi~repres~ting 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 tendmg to in'lluenee the result of a pending trial, whether civil or criminal is a grave cont~pt. Comments on pending proceedings, if emanating from the t>atties or their lawyers, are generally a mote serious contempt than those comlitg from inde pendent sources. The question in all cases of cotnment (I) (1900] . i Q.ll. 36. (2) [1970l s.c.c. 325. (Jl p969J 2 s.c.R. 649. n c E F G H s. N. JHA v. K. P. SINHA (Khanna,!.) 189 A .B c D E F G on pending proceed\ngs is not whether the publication d9es interfere, but whether it tends to interfere, with the due course of justice. The question is not so much of the intention of the conteni.ner as whether it is calculated to interfere with the administration or justice ... Reliance in the above cited case was placed upon the foJlowing observations of the Judicial Committee iii the case of Debi Prasad' Sharma and Ors. v. The King-Emperor(!). ". . . . the test applied by the . . . . . Board which jteard 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 adminis tration of law." It has -also to be borne in mind, as observed in Re: P. C. Sen('), that ordinarily a court will not initiate proc~edings for commitment for contempt where there is a mere technical contempt. This Court referred in the above context to the observations of J~ins, C.J., in Legal Remembrancer v. Matilal Ghose and Olhers(') that proceedings for contempt should be initiated with ·utm<>st reserve and no court in the due discharge of its duty ca.n afford to disregard them. It would_ follow from the above that 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 au1hority or to obstruct the due course of _justice or dll'~ administratiQn of law. As intention of the contemner to cause those consequences is not a necessary ingredient of contempt of court and it is en011gh to show that his act was calculated to obs truct or interfere with the due course of justice and administration of Jaw, there would be quite a number of cases wherein the con tempt alleged would be of a technical nature. In such cases, the court would exercise circumspection and judicial restraint iu the matter of taking action for contempt of court The court h:is to take into account the surrounding circumstances and the material facts of the case and on conspectus of them to come to a conclu sion whether because of some contumacious conduct or oilier sufficient reason the person proceeded against should be punished for contemptof cqurt. Let us now examine the fac!s of the present case in the light'of • what has bieQn stated above. The gravamen of the charge against the appellant is that during the pendency in .the High Court of the two revi5ion petitions mentioned earlier, he handed over to the representatives of the press for publication in the µewspapers the Ii . (I) LR. 70 I.A. at p. 224. (2) [969} 2 S.C.R. 649. (J) I.LR. 41 Cal. 173. l'llO SUPREME COURT REPORTS [1972] 3 S.C.R. notification, including the schedule of allegations, which had been issued under section 3 of t.hc Commissions of Inquiry Act. The learned judge in holding the appellant guilty ol contempt of court observed : . "But the mischief in this case was committed by pub licizing the said allegations with full knowledge that the two criminal revision petiiions 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 I have not lieen shown any statutory provision court. which lays down that allegations of the ,Ilature contained in the offending matter must be printed in the official gazette or in the public press." It would follow from the ~bove that the decision of the High Court was based upon the assumption that there was no statutory provisiqn which required that allegations of the nature contained in the offending matter should be printed in the official gazette. Such an a~sumpti.on in our view was incorrect. The material part of sub-section (1) of section 3 of the Commissions of ]inquiry Act reads: The appropriate Government may, if it is of opinion that it is necessary so to do, and shall if a resolution in this *half 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 Com mission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions m1d within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the .:Unc tions accordingly. Plain reading of the above sub-section 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 SOI11f matter of public impor tune.~. TI1e schedule containing the various allegations present case was a part of the notification dated March 12. 1968 and spe~ified 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 ble held to be in com pibnce with the statutory requirement. The object of publication in an official gazette is twolold : to give publicity to the notification and further to provide authenticity to the contents of that notifica tion in case some dispute arises with regard to the contents. A B c D E .. G e B c s. N. JliA v. K. i>. SINHA (Khanna; J.) i9! What was given to the press for publication in the present case was the notificatiQn 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 pub lication to the press with a. view to give emphasis to ·ainy 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 Con:tn1ission as set forth in aljegation No. J-4 was whether there was any misuse of official position on the part ol 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 aio.4 Arjun Pandey. The question for decision which, how ever, 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 aind 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 cemmissioll of inqlliry, but that would not attract liability for contempt of court. In the case of JagallflQth Rao v. State of Orissa( 1 ) the appellant had challenged a notification issued under section 3 of the Commis sions of Inquiry Act appointing a Commission of Inquiry to inquire into certain allegations against persons who had held the offices of Chief Mmisters and ministers in Orissa. An arguiacnt was ad vanced iii -that case that one of the items of charges which were to be inquired into biy the commission was the subject matter Of an appeal pending in the High Court. Question arose~ that context whetherJ4e setting up of the commission of inquiry by the State Govern4J-etit or the continuation of the i.nquiry by the cOlllDlission would be tantamount to contempt of court. This Colltt held that the above !lcts would not · · constitute contelllpt of court and observed: _ - -- "It was po\nted out by this Court in Shri Ram Knmna Dalmia v. Shri Justice S. R. Tendo/kar( 1) that the inquiry cannot be looked upon as a judicial inquiry and the order ultimately passed cannot be enforced proprio vi1ore. The inquiry and the investigation by the Commission do not therefore amount to usurpation of the function of the courts of Jaw. The scope of the trial by the Courts of law and the Commissioµ of Inquiry is altogether differ- In any case, it CllrinOt be said that the Commis ent. sion of Inquiry would be liable for contempt of Court if it proceeded to inquire into matters referred to it by the • E F G H ---(I) [1968] _3 S.C.R. 789. (2) [1'S9] S.C.R. 279. 15-L864SupC.I./72 192 SUl'ltEM!: COURT JtBl>ORtS (1972] 3 S.C It the Commission Government Notification. In appointing a Commission of Inquiry under section 3 and in malting the inquiry contemplated qy the !l!Otification, performing its statutory duty. We have already held that in the appointing of the Commission of Inquiry Government was acting bona fide. It is, therefore, not possible to accept the argunuint of the appellants that the setting up of the Commission of Inquiry_ bx. the State Government or the continuance of the inquiry by the Commission so constituted would be tantamount to con- tempt of Court." A B In our view the judgment of the High Court cannot be sus tained. W.e, therefore, accept the appeal, set aside the judgment C of the Higli Court and discharge the rule which was issued against the appeJlant for contempt of court. G.C. Appeal allowed.