Teja Singh, C.J.@mdashSub-Inspector Kuldip Singh, Kotwal of Malerkotla was attacked and killed at Malerkotla town on 2nd Har, 2006 corresponding to 15th June, 1949. The first information report at the police station was lodged at 9 A.M. and in the course of investigation that was taken in hand at once a number of persons were arrested. A report regarding the incident and various matters connected therewith made by Shri Brish Bhan was published in the issue of the "Tribune" Ambala dated 23rd June 1949 and a translation of the report appeared in the issue of the Daily Vir Bharat dated 26th June 1949 printed at Delhi. The Malwa Gazette, a weekly Urdu paper printed at Patiala, published 6 articles relating to the same incident, three in its issue of 11th Har 2006 (24th June 1949) and two in that of 19th Har, 2006 (2nd July 1949). The publication of the report and the articles mentioned above have given rise to the following three petitions for contempt of court made by the Government Advocate u/s 3, Patiala Contempt of Courts Act: (i) criminal Miscellaneous No. 64 of 2006, against Mr. Brish Bhan; (ii) Criminal Miscellaneous No. 66 of 2006 against Dr. T.G and Goswami Editor, Printer and Publisher of Malwa. Gazette, and (iii) Criminal Miscellaneous No. 67 of 2006 against Mr. J. Natrajan, Editor and L. Ganpat Rai, Printer and Publisher respectively of the Tribune and Mr. Hardyal Shad, Editor and Mr. Chaman Lal Kutial, Printer und Publisher of Vir Bharat.
2. As regards Shri Brish Bhan''s report, it was alleged by the Petitioner that it was intended to prejudice the fair trial of the case relating to the Kotwal''s murder before a Court or, at any rate, it had the tendency to interfere with due course of justice. As regards the articles published in the Malwa Gazette, the Petitioner''s position was that the writer had made an attempt therein to defend the citizens of Malerkotla and the parsons arrested and had made serious insinuations against the administration, that the substance of the articles left no room for doubt that the same were calculated to influence the minds of not only the prosecution witnesses, but also the general public and that they were prejudicial to the final trial of the case.
3. Only Shri Brish Bhan and Dr. G. Goswami have appeared in response to the notices issued to them to show cause why they should not be convicted and punished for contempt of Court. The Respondents in criminal Miscellaneous No. 57 of 2006, though personally served, have failed to attend.
4. In the petition against Shri Brish Bhan, it was mentioned that it was the result of a sort of private inquiry that he conducted on the spot. Shri Brish Bhan in his written statement admitted having made the inquiry and published the report. His defence was that he did so as a part of his public duty. This is what he said in paragraph 3 of his written statement:
With reference to para. 3 of the petition the Respondent submits that he is an Advocate on the rolls of this Hon''ble Court for the last 16 years and is also President of the Pepsu Provincial Congress Committee. The Respondent further submits that he enquired into the happenings as a part of his public duty as responsible head of the Congress Organisation.
He, however, denied that he had any intention to commit a contempt of Court or that the report had the tendency to interfere with the course of justice. Paragraph 6 of his written statement which deals with this point reads as below:
With reference to para. 6 of the petition the Respondent denies that the article was intended to prejudice the fair trial of any case before the Court or has a tendency to interfere with the due course of justice. The Respondent never intended to commit contempt of Court. The Respondent further submits that as far as the statements of facts in the said article are concerned they are made after a bona fide and proper inquiry into the circumstances and are true in substance. In the event of it being held that the statement contains any comments the Respondent says that they were made bona fide in public interest and in the interest of the justice with a view to draw attention of the authorities to the circumstances culminating in the death of the Sub-Inspector referred and in the due discharge of his duty as a public man.
He also denied that at the time the report was published any proceedings were sub-judice or the case was pending in any Court.
5. Dr. Goswami also accepted responsibility for publication of the articles in question in the Malwa Gazette and admitted that he was the Editor, Printer and Publisher of the paper, but he denied that the articles were either intended or had the tendency to bring the Court into contempt or interfere with the course of justice. He pleaded that he had no knowledge that the Police had arrested any persons on the spot for the murder of the Sub-Inspector or that there were any pending proceedings.
6. It is now well recognised that when a person is guilty of a contempt of a subordinate Court, he can be dealt with and punished by the High Court in the same manner as if he has committed the contempt of the High Court itself. In the Patiala State the matter was governed by an enactment (No. V of Samvat 1991). Sub-section (1) of Section 2 of this Act lays down as follows:
Subject to the provisions of Sub-section (2) the High Court of Judicature at Patiala shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempt of Courts subordinate to it as it has and exercises in respect of contempts of itself.
7. Sub-section (2) is to the following effect:
The High Court shall not take cognisance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Penal Code.
8. Section 3 lays down the punishment. It says:
Save as otherwise expressly provided, by any law for the time being in force, a contempt of Court may be punished with simple imprisonment for a term which may extend to one year or with fine, which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.
9. On the formation of the Union, this Act became applicable to the whole of the Union by virtue of Section 3, Patiala and East Punjab States Union General Provisions (Administration) Ordinance, 2005 (No. XVI [16] of 2005), Sub-section of which says:
(1) As from the appointed day, all laws and rules, regulations, bye-laws and notifications made thereunder, and all other provisions having the force of law, in Patiala State on the said day shall apply, mutatis mutandis, to the territories of the Union and all laws in force in the other Covenanting States immediately before that day shall cease to have effect.
10. In addition, Section 33, Patiala and East Punjab States Union Judicature Ordinance, 2005 (No. X [10] of 2005) has given the High Court express power to punish contempt of a subordinate Court. The section reads as follows:
The High Court shall be a Court of record and shall have power to punish with fine not exceeding rupees two thousand or with simple Imprisonment for a period not exceeding one year, or with both any person who is guilty of contempt in relation to Itself or to any Court subordinate to it:
Provided that the High Court shall not take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it when such contempt is an offence punishable under the Penal Code for the time being in force in the Union.
Provided further that such person may be discharged or punishment awarded may be remitted by the High Court on apology being made to the satisfaction of the Court.
11. So there is no question of the jurisdiction of this Court to deal with the petitions and it may be said in fairness to the learned Counsel who appeared for Shri Brish Bhan and Dr. Goswami that they raised no objection on this point. So all that has to be determined is whether the report and the articles contain any matter which amounts to contempt of Court.
12. The general principles that govern cases of this kind are cow well recognised and are laid down in a large number of English and Indian cases. In England the earliest definition of contempt of Court was given by Lord Hardwicke in In re Read and Huggonson (1742) 26 E.R. 683 : (2 ATK. 469). This is what he said:
There are three sorts of contempt; (a) one kind of contempt is scandalizing the Court itself; (b) there may be likewise a contempt of this Court in abusing parties who are concerned in causes here; and (c) there may also be a contempt of Court in prejudicing mankind against persons before the cause is heard.
Later on in Reg. v. Grey (1900) 2 Q.B. 36 : (69 L.J. Q.B. 502), Lord Russell gave the following definition at p. 40 of the report:
Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or lower his authority, is a contempt of Court. That is one class of contempt. Further any act done or writing published calculated to obstruct or interfere with the due coarse of justice or the lawful process of the Courts is a contempt of Court.
13. These definitions have since been adopted by all the High Courts in India. Mention may be made of the latest decisions, namely, In re Tarit Kanta Biswas 45 Cal. 169 : (A.I.R 1928 cal. 988 : 19 Cri.L.J. 680 S.B.), In re Subramanyam Iyer, Editor Tribune A.I.R 1941 Lah. 329 : (45 Cri.L.J. 445 F.B.) and Emperor v. Khushal Chand A.I.R 1945 Lah. 206 : (47 CriL.J. 115). To the last named two decisions I was a party. Oswald in his well, known treatise "Contempt of Court" (Edn. 3) has summed up the law in the following words:
All publications which offend against the dignity of the Court, or are calculated to prejudice the course of justice, will constitute contempts. Offences of this nature we of three kinds, namely, those which (1) scandalise the Court, or (2) abuse the parties concerned in causes there, or (3) prejudice mankind against persons before the cause is heard. Under the first head fall libels on the integrity of the Court, its Judges, officer or proceedings; under the second and third heads anything which tends to excite prejudice against the parties, or their litigation, while it is pending.
14. The learned Government Advocate contended that the present petitions fall under the third head.
15. About this kind of contempt the following observations made by Lord Hardwicke in the case mentioned above are relevant:
Nothing is more incumbent upon Courts of justice than to preserve their proceedings from being misrepresented, nor is there anything of more pernicious consequence than to prejudice the minds of the public against persona concerned as parties in causes, before the cause is finally heard.
16. Later on, he observed:
There cannot be anything of greater consequence than to keep the streams of justice dear and pare, that parties may proceed with safety both to themselves and their characters.
17. I shall deal first with Shri Brish Bhan''s report. In order to be able to understand the view points both of the learned Government Advocate and Shri Brish Bhan''s learned Counsel Shri K.M. Munshi, it appears to be necessary to reproduce the whole report as it appeared in the papers:
PEPSU CONGRESS PRESIDENT DESCRIBES SITUATION IN MALERKOTLA.
WOEFUL TALE OF THE GIRL AND HER PARENTS NARRATED.
(From our own Correspondent.)
Patiala, June 22 - Following is the statement issued by Shri Brish Bhan, President, P.E.P.S.U. Congress Committee, Patiala, on the recent Malerkotla happenings:
1. The tragic happenings in Malerkotla culminating in the deplorable death of the Sub-Inspector of Police, S. Kuldip Singh and subsequent wholesale arrests of prominent Congress workers and respectable citizens, and the Police reign of the jungle now prevailing there has brought soma fundamental issues to the surface. What has happened in Malerkotla is not merely the concern of the people of that city alone. Every citizen of the Patiala Union must ponder over the whole matter seriously and in a responsible manner and decide as to how he shall be governed. When I came back from the tour of the Mohindergarh District on June 18, some people of Malerkotla came to me and told their woeful tales. I decided to go to Malerkotla and see the situation for myself. After going there I appealed to the Sub-Divisional Magistrate for interview with those arrested by the Police in connection with the murder of the Sub-Inspector. I had got report of Police repression on them inside the Police Lock-Up. I wanted to verify the truth of the wild reports by meeting them and getting first hand knowledge. But the Sub-Divisional Magistrate unnecessarily delayed my meeting the next day.
THEIR WOEFUL TALE.
2. I have contacted dozens of people who are in possession of first hand knowledge of the happenings. I have also met the girl named Shakuntla who was criminally assaulted by the deceased Sub-Inspector, her mother and father and heard the woeful tale from their own lips. The facts of the whole of the matter which I have been able to ascertain and about whose truth I am absolutely not in doubt are briefly as follows:
REFUSAL TO RECORD STATEMENT.
3. One Shakuntala, a girl aged about 17 years, accompanied by her mother reached Malerkotla Railway Station by train from Ludhiana at 10 p.m. on June 14. She was received there by her father and brother. At the Railway Station two goondas attempted to play a case with the girl but failed. The girl''s father got hold of case of the goondas, the other having fled away and took him to the Police Station. One Police constable and her mother also accompanied. The Sub-Inspector S. Kuldip Singh, reached the Police Station at about 11 p.m. No case was registered against the goonda. On the other hand, the Sub-Inspector insisted on the girl being brought to the Police Station for recording her statement. Accordingly the girl was brought from the house at mid-night. The Sub-Inspector took the girl in his residential quarters on the pretence of recording her statement there. The father and the mother or any other person was not allowed to be present there. When left alone, the Sub-Inspector made her drink forcibly and criminally assaulted her thrice.
HOW PEOPLE GAME TO KNOW.
4. In the early hours of the morning the parents of the girl approached a few respectable citizens of the town for help and thus the sad news got currency. The whole town was full of resentment at the outrage, perpetrated by the Custodian of Law and Order and consequently observed Hartal. L. Madan Lal, Shree Baboo Ram Sund, Advocates, a member of the Provincial Congress Committee, Shree Amar Nath Jain, President, City Congress Malerkotla, Shri Girdhari Lal, a Socialist Worker, Shri Ram Sarup Advocate, and L. Hukam Chand Advocate (all of them under arrest now) took the girl to the Hospital. The Sub-Inspector also reached there and dissuaded her parents from taking any steps against him and also offered money. The parent did not agree and the girl was examined by a Lady Doctor. The medical certificate obtained corroborated the commission of criminal assault.
SUB-INSPECTOR MOBBED AND KILLED.
5. In the meantime, the Sub-Inspector went to the Grain Market, abused the people for observing Hartal and terrorised them. This high-handed behaviour of the Police Officer acted as fuel to the fire because of injured feelings. The people soon turned into an infuriated mob, got hold of the Sub-Inspector and beat him mercilessly. Rendered unconscious by excessive beating, he was thrown into a Station Wagon standing near by. The Assistant Superintendent of Police, having got this information of this mob fury took Shree Baboo Ram, Shree Hukam Chand and Shree Amar Nath Jain from the Hospital with him and reached the spot to handle the situation. As soon as he reached there the Sub-Inspector asked him to fire at the mob. At this the mob again got excited, dragged the Sub-Inspector from the Station wagon and beat and thrashed him till he succumbed to the injuries. The mob might have attacked the A.S.P. as well but for the intervention of Shree Baboo Ram Sund and others who accompanied him. All of them did their best to save Sub-Inspector but they were helpless.
6. The same day, in the evening the Inspector-General of Police S. Dalip Singh reached Malerkotla. Instead of ordering an impartial Investigation into the whole matter a communal colour was given to the incident by those in authority. It was in pursuance of this design that all the respectable Hindus including prominent Congress Workers who saved the situation and did not take any part in the whole incident have been put under arrest.
WHAT FOLLOWED.
7. It is really tragic and deplorable that the Sub-Inspector was killed in this ghastly way. Those who took the law into their own hands must be punished by the law Courts. But equally tragic and deplorable is the act of the deceased Sub-Inspector who misused his authority and outraged an innocent girl. If the custodians of law and order misbehave in this manner peace and orderly life is not possible. The subsequent behaviour of the Police is all the mare regrettable and condemnable. I found the people in Malerkotla overawed and terror stricken. In the beginning about eighty arrests were made and many of them were let oft later on after a good deal of beating: I went to the hospital to meet one Lachhman Dass who had been removed there from Police look-up, but he was so much nervous because of Police repression, that he hid himself before I could Bee him. I met the lawyers in Malerkotla and requested them to accept the brief but they refused being afraid of the "Police Raj". Throughout my stay at Malerkotla I was surrounded by a swarm of C.I.D. men. At present Malerkotla is in grip of an absolute ''Police Raj''.
IMPARTIAL INQUIRY.
8. I learned that attempts are being made to prove the incident of criminal assault as false and to give to the whole case a communal colour. I am constrained to say under the present circumstances and administration and impartial investigation into the matter is not at all possible. I assert, as I did some days back, that crime wave in Patiala Union is increasing in alarming proportions in spite of the denials by Civil Supplies Minister, Seth Ram Nath, day-light robberies and dacoities in many cases also accompanied by murders have been committed in the districts of Barnala, Mohindergarh and Sangrur.
9. The most tragic part of this is that the Police administration is functioning in a most unsatisfactory manner. At this stage I can only say this much that the tragic events of Malerkotla are bound to have far reaching repercussions whether for worse or better in the whole Union, because they are only a minor manifestation of the disease whish is already be very rampant in all parts of the Union. The life, property and honour of the people in all parts of the Union is constantly in danger because of the present administration. In the interest of peace, law and order in the Union, I make a bold demand that the present I.G. Police must go.
10. I request the States Ministry that an independent enquiry be instituted in the Malerkotla happenings so that the innocent be saved from the Police torture and only the really guilty be punished. I also appeal to the people of the Union that they should not take law into their own hands under any excitement or provocation howsoever grave. I also hope that they will not allow themselves to be misled by communal propaganda.
(The paragraphs have been numbered by me for facility of reference).
18. The perusal of the report leaves no doubt that the writer was aware of the following facts: (1) That the Kotwal had been killed; (2) That the Police had registered a case for murder and had arrested a number of persons for having participated in that offence. The report does not state in so many words that the Police had registered a murder case, but it is mentioned in para. 1 that the writer appealed to the Sub-Divisional Magistrate for interview with those arrested by the Police in connection with the murder of the Sub-Inspector," and since he claims to be an Advocate of sixteen years'' standing and according to law arrests for murder could not have taken place unless the case for murder had been registered, I presume that he must have known of the registration of the case. (3) That while the Police or the prosecution were giving out that it was a case of deliberate murder brought about by communal considerations, the position of the other side was that the cause of the whole trouble was that the Sub-Inspector bad criminally assaulted a young girl. Reference in this connection should be made to the following words of para. 8.
I learned that attempts are being made to prove the incident of criminal assault as false and to give to the whole case a communal colour.
For details of the criminal assault we must turn to para 3.
19. The report would also go to show that these facts were known to the writer before he took up the inquiry. It is stated in para, 1:
When I came back from the tour of the Mohindergarh District on June 18, some people of Malerkotla came to mo and told their woeful tales. I decided to go to Malerkotla and see the situation for myself. After going there I appealed to the Sub Divisional Magistrate for interview with those arrested....I had got reports of Police repression on them inside the Police Look-up.
20. The learned Government Advocate maintained that Shri Brish Bhan brought himself within the pale of law by the very act of starting the inquiry. His argument was that though the case had not been actually put in Court, since the Court proceedings were imminent, it was sub judice for all practical purposes and no'' private person had the right to make any inquiry into the matters which were likely to be raised in the case for one side or the other and which the Court was bound to determine for the decision of the case. I am afraid, it is not possible for me to accept this argument and no authority has been quoted before me in support of the contention that private persons can be prevented from, or any action can be taken against them for, going about and making inquiries into the facts of a pending case. The essence of the offence of contempt of Court consists of doing an act or publishing a writing which is calculated to interfere with due course of justice and I have not been able to under, stand how by merely holding an inquiry one can be said to interfere with the due course of justice. It is only when the result of the inquiry is published that one can be said to be guilty of contempt of Court because the publication is likely to create a prejudice for or against a party and this amounts to interference with the trial of the case and hence the course of justice. The fact that the writer or the publisher had no such intention and he was actuated with the best of motive is not material and all that has to be seen is whether the writing has the tendency to interfere with the due course of justice or it is likely to do so. There is abundant authority in support of this proposition. In
It has been frequently laid down that any act done, or writing published which is calculated to interfere with the due course of justice is a contempt of Court and writing prejudicing the public for or against a party are similarly contempt; see Reg. v. Grey (1900) 2 Q B. 36 : (69 LJ. Q.B. 502) and In re Read and Huggonson (1742) 2 Atk. 469 : (26 E.R. 683). It has also been laid down that no intent to interfere with the due course of justice or to prejudice the public need be established if the effect of the article or articles complained of is to create prejudice or is to interfere with the due course of justice.
21. The same learned Chief Justice made the following remarks in Subramanyam''s case (A.I.R.1943 Lah. 329 : 45 Cri.L.J. 445 F.B.) referred to above:
In the class of cases of contempt of Court where anything is done which is calculated to interfere with the due course of justice or is likely to prejudice the public for or against a party the essence of the matter is the tendency to interfere with the due course of justice. Any publication which is calculated to poison the minds of jurors, intimidate witnesses or parties or to create an atmosphere in which the administration of justice would be difficult or impossible amounts to contempt.
22. Dealing with the question of motive, this is the remark that Kania J. made in Hargowandas B. Kotak v. Chimanlal Vadilal A.I.R 1942 Bom 86 : (43 Cri.L.J. 583):
I am not concerned in this case with the motives of the writer. I am concerned with the effect which this publication is likely to cause.
23. In Krishna Yachendra Bahadur v. Rama Naidu A.I.R 1938 Mad. 248 : (39 Cri.L.J. 328) , the Respondents published in a newspaper an article which stated the case of the Defendants in a suit instituted by the Petitioner against certain ryots and accused the Rajah of having ruined the Defendants and concocted false criminal cases against them, and further of using his influence maliciously and to the detriment of the Defendants. It was held that the article in question amounted to a contempt of Court and the fact that the writers of the article believed that the said article would not prejudice the fair trial of the suit would not excuse the offence. In
24. Shri K.M. Munshi argued that the Government Advocate must be pinned down to the allegations made in his petition and since the petition was silent about the murder case, he could not be allowed to say that the publication of the report had the tendency or was likely to prejudice the trial of that case. He further argued that though the report in question did state that a number of persons had been arrested by the Police at Malerkotla there was nothing to show that to the knowledge of the maker of the report the arrests had taken place for the offence of murder. As regards the first objection, the petition when read as a whole leaves no doubt that the base referred to in para. 6 could be no other than the murder case and what the Government Advocate alleged was that it was the fair trial of that case that was intended to be prejudiced by the publication of the report. It was mentioned in para. 2 of the petition, which has already been referred in the earlier part of this order, that the police had arrested a number of persons for the murder of Kuldip Singh and started investigation in the case and when para. 6 stated that the article was intended to prejudice the fair trial of the case, obviously the case meant was the one relating to the murder which was going to be put in Court. This objection must, therefore, be overruled.
25. As regards the second objection, there does not appear to be any force in it either, because it is stated in the very first paragraph of the report that the arrests made by the polios were in connection with the murder of the Sub-Inspector. Now, even a layman knows that every death that results from a violent Act does not amount to "murder" and the term applies only when the offence comes within the purview of murder as defined in the Penal Code. So when Shri Brish Bhan a lawyer of 16 years standing talked of "murder" he must have done so knowing full well that it was the offence as defined by the Indian Penal Code that the police were investigating and which the persons arrested by them were alleged to have committed. Whether there were any circumstances, such as the commission of rape, the use of abusive language or the terrorising of the shop-keepers by the deceased, or his instigating the Assistant Superintendent of Police to fire at the mob, which could change the nature of the offence, was a matter that could only be decided by the Court. Similarly, whether the persons under arrest bad taken any part in the alleged offence or in the incidents which led to it, and if so to what extent, were also questions that arose in the case and consequently could be answered only by the Court. But Shri Brish Bhan seemed to have paid no attention to this aspect of the matter and not only he constituted himself a tribunal for the determination of all these questions but gave publicity to his verdict on them, as also on various other matters that were connected with the case, and in order to impress upon everybody that there could not be the slightest doubt about the correctness of the conclusions that he had formed, he emphasised in para. 2 of his report "that the facts of the whole of the matter were as I have been able to ascertain and about whose truth I am absolutely not in doubt..." The first thing that he gave out as proved was that the girl had been raped by the deceased Sub-Inspector. He described in detail the whole incident as it happend according to him, and after narrating bow the Sub-Inspector sent for the girl to his house at midnight, he summed up his finding on this point in the following words:
The Sub-Inspector took the girl in his residential quarters on the pretence of recording her statement there. The father and the mother or any other person was not allowed to be present there. When left alone the Sub-Inspector made her drink forcibly and criminally assaulted hex thrice.
26. Paragraph 4 of the report relates to the commotion and stir caused in the whole town of Malerkotla when "the outrage perpetrated by the Custodian of Law and order was known" and the part played by Baboo Ram Sud and a few other persons who had been arrested by the Police. It was also mentioned in this paragraph that the certificate of the Doctor who held the medical examination of the girl "corroborated the commission of criminal assault". The main incident which resulted in Sub-Inspector''s death is described in para. 5 and we find the following facts marshalled one after the other: (1) That the Sub-Inspector went to the grain market, abused the people for observing hartal and terrorised them; (2) this high-handed behaviour of the Police Officer acted as fuel to the fire because of injured feelings; (3) as soon as the Assistant Superintendent of Police reached the spot,
the Sub-Inspector asked him to fire at the mob. At this the mob again got excited, dragged the Sub-Inspector from the station wagon and beat and thrashed him till he succumbed to the injuries.
The concluding words of the paragraph contain the verdict regarding Baboo Ram Sood and others who accompanied him. The names of these persons are mentioned in para, 4 and they bad all been arrested by the Police in connection with the murder. The report not only exonerated them of all kind of blame but held that but for them even the Assistant Superintendent of Police would have suffered at the hands of the mob. The words are:
The mob might have attacked the A.S.P. as well but for the intervention of Shree Baboo Ram Sud and others who accompanied him. All of them did their best to save Sub-Inspector but they were helpless.
Paragraph 6 attacks the Inspector General of Police and the Subordinate Police Officials. It is stated that instead of ordering an impartial investigation a communal colour was given to the incident and it was in pursuance of this design that all respectable Hindus, including the prominent Congress workers who saved the situation and did not take any part in the whole incident have been put under arrest. The finding amounted to this that persons arrested by the Police had taken no part in the incident, that they were innocent, and that they were arrested because it was planned to apprehend all respectable Hindus, including prominent Congress workers. I have not the slightest doubt in holding that all this was calculated to interfere with the course of justice, because it tended to prejudice public mind, first against the deceased and consequently the prosecution case, and secondly, in favour of the arrested persons whose guilt waste be inquired into by the Court. We are not concerned with the fact whether the report had actually that effect. The only question before us is whether it had that tendency and I believe that the answer to this question cannot but be in the affirmative.
27. In Khushal Chand''s case (A.I.R. 1945 Lah. 206 : 47 Cri.L.J. 115) referred to above, certain butchers were attacked at Amritsar while they were carrying beef in their carts in front of the Durgiana Temple. They were attacked by five Hindu youngmen and the matter being reported to the Police a case under Ss. 307 and Indian Penal Code, was registered against the latter. About a week later two articles appeared, one in the Daily Partap and the other in the Daily Milap, two vernacular newspapers that were printed at Lahore. The High Court while convicting the Editor and Printer of the Partap made the following observations:
These articles contain in a sensational form a number of statements highly favourable to the assailants of the butchers on matters which are to be adjudicated upon by the Court by which the case is to be tried. It is stated in the Partap article, for example, that the beef was uncovered and the boys insisted that it should be covered. Again it is stated that the butchers were not prepared to listen and that hot words were exchanged. The question whether beef was or was not covered or whether hot words were or were not exchanged are matters which ought properly to be decided by the Magistrate or the Judge concerned. The Milap article too puts the butchers in the wrong by stating that when a few Hindu youngmen told the butchers not to take the beef by that route they (the butchers) became prepared to fight. Although this article is loss harmful in its tone and effect than the other, it is manifest that both the articles are deliberately designed to create an atmosphere of sympathy for the offenders and to mobilise public opinion in their favour. They are unquestionably calculated to produce the impression that the offenders are not to blame and that they are being persecuted as they happen to belong to a particular community.
28. In Rex v. Parke (1903) 2 K.B. 432 : (72 L.J.K.B. 839), Wills J. set out the reasons why Action is taken against newspapers and publishers of writings of this kind. He said:
The reason why the publication of articles like those with which we have to deal is treated as a contempt of Court is because their tendency, and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists, namely to administer justice duly, impartially, and with reference solely to the facts judicially brought before it. Their tendency is to reduce the Court which has to try the case to impotence, as far as the effectual elimination of prejudice and prepossession is concerned.
29. Now, there is consensus of authority that in order that a writing should be held to amount to contempt of Court it is sufficient if it has a tendency to prejudice the fair trial of a case and interferes with the course of justice by creating prejudice in favour or against a party and I have held that Shri Brish Bhan''s report amply satisfies this condition. I may, however, add that it goes much further, inasmuch as it appears to me that the objects with which it was written and published were not innocent. Those objects were (i) to throw the entire blame upon the Sub-Inspector and to make out that he invited his tragic end by his own doings; (ii) to exonerate, if not all, at least the most prominent of the persons who had been arrested by the Police for the alleged offence of murder and to make out that they were innocent; and (iii) to run down the administration by attacking the Inspector-General of Police under whose supervision the investigation of the case was being conducted and the subordinate officials who were conducting the investigation. Shri K.M. Munshi frankly admitted that if it be found that the persons about whom it was stated in the report that they had not taken any part in the incident had been arrested for murder, the report would amount to contempt of Court, but he contended that different was the case with regard to the criticism of the Police Officers. I agree with learned Counsel that criticism of the executive authority like the Police, howsoever bitter, cannot be treated as contempt of Court, but when such criticism is in connection with the conduct of the said authority in respect of the investigation of a pending case, or a case that is likely to be placed before a Court for decision, and it is calculated substantially to interfere with the due course of justice by creating prejudice for or against a party, it cannot but amount to contempt of Court. This was held by the Full Bench of the Lahore High Court in Subramanyam''s case (A.I.R 1943 Lah. 329 : 45 Cri.L.J. 445 F.B.) and, later on, by a Division Bench in Khushal Chand''s case (A.I.R 1945 Lah 206 : 47 Cri.L.J. 115) both of which have been mentioned above. In the present case, though the primary object of the writer in criticizing the Inspector. General of Police and the Police Officers in charge of the investigation was to make out that the administration was inefficient, the remark that the Inspector General of Police while ordering the arrest of the persons in connection with the murder was swayed by communal considerations and the arrests were being made in pursuance of a plan and because the arrested persons were Hindus and Congressmen, it was inevitable that the writing should create atmosphere of utter contempt for the prosecution and sympathy for the alleged offenders. I, therefore, hold that Shri Brish Bhan was guilty of contempt of Court.
30. Coming now to the case against Dr. T.G. Goswami. Though in the petition the Government Advocate had taken exception to all the five articles at the time of argument, he withdrew his case in so far as it related to article (b) published in the issue of the 11th Har 2006. Of the remaining two articles of that issue, the one under the heading "Malerkotla ka Waqea" was quite short and the learned Government Advocate admitted that para. 1 of it did not contain anything objectionable. Paragraph 2 reads as follows:
The people of the town got so much affected by this incident, (i.e., the incident relating to the rape of the girl) that they became mad and they killed the Kotwal. On this instead of investigating into the condemnable Action of the Kotwal, Government started terrorising all the citizens. Malerkolta today is under the grips of barbarism.
31. The words of para 3 are:
I have not yet lost faith in the Patiala Government and the Ministers and I expect that merely because blame attaches to a high official of the Union they would not try to give a wrong colour to the facts. If this incident is shelved and innocent persons are implicated public would lose all confidence in the Government.
The last paragraph contained a demand for an impartial inquiry into the matter and it was stated that the best thing would be to make over the case to Delhi or the Punjab Police. This article was copied from the issue of the Milap dated 21st June. The mere fact that it was a copy of article appearing in another paper is no valid defence; but I do not think that there is anything in the subject matter of the article which requires serious notice. It is true that the second paragraph takes the incident of rape for granted and it has the tendency to mitigate the offence of those who were responsible for killing the Kotwal, but there being no mention in the whole article either of a case or of the arrest of persons in connection with the alleged murder, I hold that there was nothing in it which could amount to contempt of Court.
32. The third article in the issue of 11th Har is "Riasat Malerkotia fee 80 Muzaz Ashkhas giraftar-Public men, Dehshat" (-eighty respectable citizens of Malerkotla arrested-Panic in Public). Below this are headlines in small letters such as "Section 144 applied." "The Kotwal drunk with liquor sent for the girl from her house on the pretext of search and raped her." "The sensational statement of the girl''s father." "Citizens constitute a Defence Committee." "The girl was to be married ten days after the occurrence" and "The girl and her mother had gone to Ludhiana for preparation of the dowry." This article is fairly long and was copied from the issue of the Daily Milap, Jullundur, dated 20th June 1949. In para. 1 it is mentioned that about eighty respectable residents of Malerkotla, including Lala Baboo Ram, M.A., President, Malerkotla Congress Committee and Member, Pepsu Congress Working Committee, and others have been arrested in connection with the murder of the Sub-Inspector of Malerkotla and they have been so badly beaten while in Police custody that they are still lying in the hospital. It is also mentioned that a Defence Committee has been formed, that Hartal at Malerkotla has been called off but the people are still panicky and that the authorities do not allow them to send even telegrams and no permission is granted to interview the arrested persons. Paragraph 2 says something about the activities of the Defence Committee and the statements that it recorded. It is mentioned that one of the statements is that of the father of the girl who is alleged to have been criminally assaulted by the Sub-Inspector. The statement is given in detail and it describes how the girl was sent for by the Kotwal, that he was drunk, that be took her to the Chobara, that the father of the girl was not allowed to accompany her and that when the girl was turned out she was unconscious and her clothes were besmeared with blood and she appeared to have been drunk, etc. etc. The last paragraph also relates to the same statement and it is mentioned that the girl was medically examined, that when the Sub-Inspector came to know of the examination of the girl etc., he tried to contact the girl''s father through some policemen, and that later on the girl was taken to the hospital.
33. It has been held in some decided cases that publication of the version of one side relating to a pending case can under certain circumstances amount to contempt of Court, but I do not think this can be said of the present article because the alleged rape of the girl, though it had a bearing on the case, could not be characterised as a defence version of the incident of murder which alone could be the subject-matter of the proceedings in Court. Moreover, even if it be considered that it did amount to contempt, it was of a very mild nature and technical.
34. Of the two articles that appeared in the issue of the 19th Har, the first is headed "Malerkotla hi Kahani" (-the story of Malerkotla) reproduced from another paper called ''Jai Hind.'' It starts by referring to the incidents that happened in Malerkotla and after pointing out that they have created a sensation throughout the country and have even made the Government of India tremble, attacks the Prime Minister of Patiala and East Punjab States Union in these words:
The Prime Minister has assured people that he will have an independent inquiry made into all the facts, but I have no hesitation in saying that his attitude is not sympathetic Certain things are being said about the Inspector-General of Police which are rather difficult to believe, but in case they are true, then it should be understood that they will not be listened to. When the highest Police Official of the Union is himself biassed how can it be expected of him that he would bring his officers to the right path? At this time in Malerkotla the Police is on one side and the people on the other. The police want to take revenge for the murder of one of its officials. Accordingly it has started terrorising the people. The persons who have been arrested have oven been deprived of ordinary facilities to which they were entitled as under-trial prisoners.
35. The concluding words of the paragraph are:
I do not justify the murder of the Sub-Inspector. Whatever offence he had committed he could be punished for it, either by a Court or his superior officers, but we should not forget that people were sufficiently tired of Mm, and since their complaints fell on deaf ears and when the Sub-Inspector was guilty of last Act they got provoked and took the law into their own hands.
In Para. 2 a strong plea is entered for adequate action against the Police Officials and a warning is held out that if this is not done and guilty officials are not punished the result would be that the Police would get encouraged and it would be difficult to say whether the incidents that happened at Malerkotla might not be repeated elsewhere. It is stated that "if someone, out of the people has exceeded his right he would be punished for it" but those Police Officers; should also be punished who in spite of their being ''Custodian of Law, have cut at the very root of law''. The only objectionable part of this article consists of the last lines of para. 1 in which the writer tries not exactly to justify but to explain away the conduct of those that were responsible for killing the Sub-Inspector. If strictly construed, these words can be said to have a tendency to interfere with the course of justice, because the question whether or not there was any provocation for putting the Sub-Inspector to death, could only be determined by Court, but by reading those lines along with the rest of the article and the words.
that he did not justify the murder and that if he had committed any offence the power to punish him rested either in a Court of Law or his superier officers.
I do not think that they had the tendency to interfere with the course of justice either.
36. Article 2 in this issue consists of an open letter addressed to Sardar Gian Singn Rarewala, Prime Minister, Patiala Union. The opening words of this letter are:
Dear Sardar Sahib, I have read your statement regarding the events at Malerkotla. By reading that statement it appears that you are not so much concerned with the tyranny perpetrated upon an innocent girl as with the fact that some people considered it proper to punish a Police Official for his diabolic deeds.
Then it goes on:
Who are responsible for the murder of the Thanedar, and whether they were justified in taking the law into their own hands, these questions will be decided by Court, but we wish to say this much that the incidents of the kind that happened at Malerkotla after the murder cannot bring good name to any Government. Whatever has happened at Malerkotla or is happening there now is an ugly blot on your Government and Administration.
In Para. 2 the writer condemns all that happened at Malerkotla. These are the last lines:
If people at large cannot be permitted to take the law in their own hands, certainly no permission can also be given to the police that they should take the law in their own hands and actuated by feelings of revenge should set the law at naught for the reason that they are not accountable to any one. If a certain, person does anything improper, it is the business, of the Court to award punishment to him, not that of the Police, but it appears that in Malerkotla the Police has monopolised the functions of Court and the people of that place are now compelled to say: ''the same is the murderer, the same is the Judge and the same the informer,'' whom should my relations accuse of murder?
37. As I remarked while discussing the other case, criticism of an executive authority like the Prime Minister or the Police cannot be treated as contempt of Court, but as in the other case so in this, the criticism of the Police is in connection with the investigation of the case and this had the tendency to create an atmosphere in favour of the arrested persons and against the prosecution. So it is contempt of Court. The only difference in the two cases is that in the case of Malwa Gazette the criticism is very mild and when read with other parts of the article the tendency of mischief could not be very great.
38. It was stressed by Mr. Pooran Chand, counsel for Dr. T.G. Goswami, that he was altogether unaware that arrests were made for murder and no case was sub judice at the time the articles were published. This objection was also raised by Shri Brish Bhan in his written statement but his learned Counsel did not press it and, in my opinion, quite properly. It is true that at the time Shri Brish Bhan''s report and the article in Malwa Gazette were published proceedings in Court relating to murder had not yet started, but in view of the fact that the case for murder had been registered and investigation was going on, and further in view of the fact that arrests had been made in connection with the murder public discussion of the facts of the case which had the tendency to interfere with the course of justice by prejudicing the world against or in favour of one party amounted to contempt of Court in the same manner as if the case was actually pending before the Court. The theory that for purposes of contempt of Court no case can be regarded as sub judice until the trial or inquiry in the case has started in Court, if it once hold good, exploded long ago. The question was considered in the Lahore Pull Bench case "In re Subramanyam" : (A.I.R 1343 Lah. 329 : 45 Cri.L.J. 445), and the following were the remarks made by Harries C.J., with whom I agree:
It is not necessary in the case of a criminal trial that the case should have been committed for trial, or even for him to have been brought before a Magistrate, provided that he had been arrested and was in custody; See Rex v. Parke (1908) 2 K.B. 432 : (72 L.J.K.B. 839) and Rex v. Clarke (1910) 103 L.T. 636 : (27 T.L.R. 32), Further, it now seems clear that the offence of contempt may be committed even if there is no proceedings or cause Actually pending, provided that such proceedings or cause is imminent and that the writer of the offending publication either knew it to be imminent or should have known that it was imminent.
39. The learned Chief Justice then referred to the remarks made by Lord Hewett C.J., in Rex v. Daily Mirror (1927) 1 K.B. 845 : (96 L.J.K.B. 352) and the observations made in Tuljaram Rao v. Sir James Taylor A.I.R 1989 Mad. 257 : (40 Cri.LJ. 533 S.B.), and added:
I respectfully agree with the opinion expressed in the Madras Full Bench case that proceedings need not actually be pending and that it is sufficient that proceedings are imminent to the knowledge of the person charged with the contempt.
40. In the present case, the proceedings were without doubt imminent and since it was mentioned in some of the very articles which are the subject-matter of these proceedings that arrests had been made in connection with the murder proceedings, the Respondents must have been aware that they were so.
41. The question is now of punishment. Shri K.M. Munshi argued that even if his client be held guilty of contempt of Court, the offence was merely of a technical nature and accordingly it should not be taken notice of. In this connection he drew our attention to a number of decided cases in which it has been held that contempt of Court proceedings being summary, should be sparingly instituted and punishment should be awarded only if it be a substantial contempt. I have no quarrel with the principle enunciated by Shri Munshi, but so far as his client is concerned, my opinion is that the contempt of Court of which he is guilty is not only technical bat is of a very serious kind. Prom what I have said above, it will be clear that his report relates to a crime about the heinousness of which there could be no two opinions. Here was a Police Official, the Kotwal of a town, done to death by a number of persons in a Bazar, in broad daylight and in the presence of a senior Police Officer of the position of an Assistant Superintendent. The fact that he was alleged to have misbehaved and criminally assaulted an innocent girl the previous night, did not affect the seriousness of the crime in so far as it related to his death. Shri Brish Bhan was aware of all this and he was also aware that the Police Officers who were investigating the case must have been bard put to in finding out the persons who were really guilty. Instead of appreciating their difficulties and using his position in helping them in tracing the real offenders he took upon himself the duty of proclaiming that everyone of the persons arrested by the Police in connection with the murder was innocent. Not being satisfied with this, he even announced that the Police had no desire, and were not out, to arrest the real perpetrators of the crime but they had decided, under the directions of their Chief, to arrest every prominent Hindu and some Congressmen because of communal considerations. I can understand his feelings about the alleged rape, of which the deceased Sub-Inspector was said to be guilty, and I agree that if this allegation against the Sub-Inspector was true his Act merited severest condemnation, but being an, experienced lawyer, as he claims to be, he should, have realised that anything said by him in that connection at that stage could not but prejudice the trial of the case and so it was his duty, both as a lawyer and a public man, to keep mum rather than to rush to the Press but he selected to do otherwise.
42. In the result, I would convict Shri Brish Bhan for contempt of Court and order him to pay a fine of Rs. 200 or in default to undergo simple imprisonment for one month. I would also convict Dr. T.G. Goswami for contempt of Court, but in view of the fact that his offence is merely technical instead of awarding any sentence I would give him a warning and order him to pay the costs of Crown which are assessed at Rs. 100. If the costs are not paid within a week, he shall undergo simple imprisonment for two weeks. Shri Brish Bhan has been allowed one week''s time to pay up the fine.
Passey, J.
43. I concur.
Kartar Singh, J.
44. I have had the advantage of persuing the order proposed by my lord the Chief Justice and I agree with the conclusion arrived at by him and with the reasons thereof, In view of the elaborate discussion of the case law as well as the merits of the case in his lordship''s judgment, it is not necessary for me to traverse the same ground once again and I will content myself in adding very briefly a few observations of my own.
45. I am of the view that the case of Shri Brish Bhan famishes an example of the danger of interference with the administration of justice by persons holding influential positions which has to be put a stop to here and now in order to maintain the purity of judicial administration because present is the time for the growth of development of institutions and new values in free India and official and non-official dignitaries and office bearers of public bodies like the President of Patiala Provincial Congress Committee or other such organisations, should not remain in uncertainty as to what is legitimate in the discharge of their public duties and what is not.
46. As to what constitutes contempt of Court, it is the well recognised principle of law that the offence is committed if the Act complained of either obstructs or has the tendency to obstruct the administration of justice and that it is enough to show that the act has the tendency to interfere in the due course of justice. In this case Shri Brish Bhan''s Act not only tended to prejudice the prosecution case against arrested persons but further mobilised public opinion in their favour and thereby encroached upon the duties of Courts of Law and the investigating authority byholding an enquiry and pronouncing his verdict n the press.
47. The plea advanced by the learned defence counsel that he merely criticised the assault made by the Kotwal on a previous night before he was murdered on an innocent girl and as such his statement did not offend the provisions of Contempt of Court Act, is untenable for the simple reason that the Kotwal was no longer in life having met with violent death and the question of punishing him did not arise, however heinous his Act may have been. The enquiry, therefore, evidently was launched in order to muddle with the murder case and to prejudice the fair trial of the accused arraigned for the offence.
48. Now if this action of ex parte expression of opinion by public men in pending cases is allowed the only result that can be, if that the administration of justice will be impaired and there is a grave danger of that situation arising in the political ferment afloat in the country. Accordingly it is all the more necessary that contempts of this kind should not be lightly by-passed, if not severely punished.
49. It was urged that the accused as the President of a responsible body, made the enquiry with the best of motives. His action may have been bona fide; nevertheless the fact remains that when be makes an extra-judicial enquiry with regard to a pending case and publishes the report his action amounts to contempt and he does so at his peril, however it may have been motivated, as held in various authorities already quoted in the leading judgment.
50. Coming to the assessment of punishment, I also feel that the offence is no doubt aggravated as the accused has obdurately persisted in justifying his action but still I would refrain from taking severe action and from imposing a sentence of imprisonment because it is evident that a man in the position of President of Patiala, Provincial Congress Committee would hardly have adopted this wholly wrong attitude, had he not been tempted by his local political importance and obsessed of having taken upon himself the duty of making enquiry into a matter which had created great sensation and commotion in the public at large.
51. The reason for not adopting the more honourable course of tendering unqualified apology and to purge himself of contempt, moreover appears to be the desire of playing the role of a hero and suffer the consequences than to allow much nobler instinct of repentance to prevail.
52. The measure of punishment again depends on the fact and circumstances of each individual cases. In some cases, sentence of imprisonment was awarded despite abject and unreserved apology while in other cases, the Respondent was let off, although no apology was tendered. In principle, the real object of punishment is the prevention of crime and the measure of punishment varies according to the prevalance of a particular form of offence. Accordingly, an amount of severity may be very appropriate at one time and which would be uncalled for at another. The offence being first of its kind in this part of the country, I think, the ends of justice will be served by imposing the sentence of fine only as proposed by the learned Chief Justice.
53. Regarding Dr. T.G. Goswami, I entirely agree with the order proposed and have nothing to add.
