SAMMBHU NATH JHA

KEDAR PRASAD SINHA & ORS.

January 24, 1972

(J.M. SHELAT AND H. R. KHANNA, JJ.]

Contempt of Court-Publication in Newspaper of notification under s. 3 of Commissions of Inquiry Act, 1952 instituting inquiry against ers~ while ministers of Bihar Government-Allegation 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 justice-Revision filea in~ Hig, h Court by accused also-Revisions pending in High Court at time of publication of notification in Newspaper-Such publication whether eo.nstitutes contempt of Court-Section 3(1) of Commissions of Inquiry Act whether makes it mandatory for Government to publish notification in official gazette.

The appellant who was a minister in the State Government of Biharissued to the press a copy of the notification published in the Bihar

Gazette Extraordinary dated March 12, 1968 whereby an inquiry bad 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 had1 against the opinion of the District Magistrate and the Law Secretary, ordere!l the withdrawal of the prosecution against two of the accuSed and the"fWter 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. Ai\. 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 l?"rmission 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 contemner to oauae 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 c!f justice and administration of law, there would be quite a number of cases where the contempt aneged would be of a teclmlca! nature.

In such cases, the court would exercise circumspectfon and judicial reru-aint in the matter of taking action for contempt cif coul'l.-The

court bas to take into account the surrounding ci'rcumstances and the material facts of the case and on c0nspectus of them to come to a conclusion whether because of some contumacious conduct or other sulllcient reason the person proceeded against should be punished for comtempt of court. fl 89 E-0]

Reg. v. Gray (1900] 2 Q.B. 36; E.M.S. Namboodripad v.

T. N.

Namblar, [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. Matilal 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 inperative requirement and cannot be dispensed with. The commisslon (J'f 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 nd 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 aazette 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 tp the contents. [190G-HJ

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 neW.paper for publication. Further, the subject matter of the inquiry before the Commission as set 'Iorlh in allegation No. I-4 was whether there was any misuse of official position on the part of the Minis- 1<1" concerned when he directed against the re<:ommendation of the Law Sea:etary aad the District Magistrate, the withdrawal o'f the prosecution against the two accused in question. The question for decision which, liowever, was the subject of criminal revision petitions pending in Patna Court was whether the order of the magistrate dismissing the application for withdrawal of prosecution was contrary to law.

The two aatters were distinct and separate and not identical. It may be that some of tho matters which were connected with the criminal revision petitions

were tho subject of inquiry by the commission of inquiry, but that would aot. attract liabi)ity for contempt of court. [191 C-D]

1., annat/i Rao v. Slate of Or)ssa, [1968] S.C.R. 789; referred to.

The jud1111ent of tho High Court must accordingly be set aside and the rule issued :tgainst the appellant for contempt of court must be discharged.

G · (192 Cl

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 Crimi- 1-1 nal Miscellaneous Petition'No; 30 oi 1968.

Basudev Prasad Sinha and B. P. Jha, for the Appellant.

s. N. JllA v. K. P. S!NllA (Khanna, J.) i85

The Judgment of the Court was delivered by

K11a1ma, J. This is an appeal by ; pecial leave by Sammbhu Nath Jha who along with two others has been found by the Patna l; ligh Court to be guilty ol contempt of court. In view of the fact tliat the contempt, in the opinion of the High Court, was of a technical nature, the contcmiriers were let off with a warning.

On January 2, 1966 a report was lodged wi1h the police ey Lachho Paswan that when he and his brother Dwarka Paswan were going to J amui market, Kedar Prasad respondent abused them.

Kedar Prasad also exhorted others to assult Dwarka Paswan.

Atn assault was then made upon Dwarka Paswan and he was surrounded. Ariun 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 Paswain 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 commitling magistrate ordered that Kedar Prasad and Atjun Pandey be sum mooed for May 15, 1966 as accused.

Kedar Prasad and Arjun Pandey filed revision petitions against the order ot the committing magistrate, but the same was dismissed by the Additional Sessions Judge, Monghyr as per order dated May 5, 1967. It was held that Kcdar Prasad and Atjun Pandey had ben 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 magi>tratc for withdrawal of the case against Kedar Prasad and Arjun Pandey on the grO\llld that it was inexpedient for State and public policy to prosecute them. After hearinp; the counsel for the complainant and others, the committing magistrate dismissed the said application on October 6, 1967. It was o1$erved that the application for withdrawal of the prosecution amounted to an abuse and improper inte1fcrQ11Ce in the normal course of justice.

Two revision petitions were filC<! 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 b¥ one Abani Kumar Ma, ndal.

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 13-18648 upCI/72

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 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 as under:

"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 !:¢fore the Additional Sessions Judge, Monghyr against their prosecution, which was dismissed.

Thereupon on 6th June, 1967 they presented an application direct to the then Mster 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 case and justice demanded that it 'houlcl be thrnshcd 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 rejected by the trial court.

Thereupon Shri Hasibur Rahman directed !hat ;1 revision should be filcJ in the

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 the 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 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 eopy _of the notification, including the schedule of allegations. Thesaid 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 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 petitions 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 jude 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 contempt of court, because it was be who had handed over the offonding 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.

We have heard Mr. Basudev Prasad on behalf of the appellant.

No one has appeared on behalf of the respondents. After givin~ H the matter our consideration, we are of the opinion that the pesent is .not a fit case wherein action should hie taken for contempt of court. 14-L864 Sup.Cl/72

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 contempt of court [Reg, v. Gray( 1) ]. The law of contempt as observed 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, generally 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 scandalising 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 misrepresented, 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 mirepresting 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 contpt. Comments on pending proceedings, if emanating from the t>atties or their lawyers, are generally a mote serious contempt than those comlitg from independent 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.

s. N. JHA v. K. P. SINHA (Khanna,!.) 189

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 administration of law." It has -also to be borne in mind, as observed in Re: P. C. Sen('),

that ordinarily a court will not initiate procedings for commitment for contempt where there is a mere technical contempt.

This Court referred in the above context to the observations of Jins, 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 obstruct or interfere with the due course of justice and administration

of Jaw, 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 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 conclusion 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

. (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


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 publicizing 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 court.

I have not lieen shown any statutory provision 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 asumpti.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 Commission 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 .:Unctions 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 importune.~. TI1e schedule containing the various allegations in the present case was a part of the notification dated March 12. 1968 and speified 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 compibnce 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 notification in case some dispute arises with regard to the contents.

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 publication 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, 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 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 Commissions 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 advanced 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 different. In any case, it CllrinOt be said that the Commission of Inquiry would be liable for contempt of Court if it proceeded to inquire into matters referred to it by the

---(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

Government Notification. In appointing a Commission A of Inquiry under section 3 and in malting the inquiry contemplated qy the !l!Otification, the Commission is performing its statutory duty. 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 argunuint of the appellants that the B 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 contempt of Court." In our view the judgment of the High Court cannot be sustained.

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.