Alarakha Hasan Hamirkha vs Keshavlal Dhaneshwar Dwivedi and Others

Shah, C.J.—These proceedings for contempt of Court are initiated on the application of one Alarakha Hasan of Jamnagar against opponent No. 1 Keshavla1 Dhaneshwar, alias Shani, editor, printer and publisher of a Weekly newspaper called ''Chet Machhendar'' published from Bombay, and four Ors. who are residents of Jamnagar. The application arises out of the following facts.

An incident involving communal tension had occurred at Jamnagar on the night of 26-9-1953 and as a sequel thereto one Kundalia Mohanlal Ladhu-bhai had filed a criminal complaint against Alarakha Hasan on 28-9-1953 charging him with offences Under Sections 323, 352 and 504, Penal Code. The present opponents Nos. 2, 3 & 4 were cited in the complaint as witnesses and they have given evidence for the prosecution.

Some how or other, the case dragged on for an inordinately long time and 20-7-55 was fixed for examining the defence witnesses. In the meantime, the first opponent published in the ''Chet Machhendar'' in its issue of 25-6-1955 an article in the column which is the subject of the present proceedings of contempt.

The article is written in a satirical vein and says that the President of the Congress Mr. Dhebar in an unauspicious and unfortunate moment declared that undesirable elements should be banished from the Congress without little realising In what awkward position he would be placed if the policy to weed out unsocial elements from the Congress was given effect to. The article makes fun of Mr. Dhebar and points out one such individual who did not deserve to be retained in the Congress fold and that person is Alarakha Hasan.

After giving certain particulars of Mr. Alarakha and stating that he never wore Khadi and shall never were it, the article says that his (Alarakha''s) mentality can best be seen from an application dated 13-10-53 made by four persons (present opponents Nos. 2 to 5) to Mr. Dhebar, who was then the Chief Minister of the Saurashtra State. It also refers to an application by two thousand people of Jamnagar, copies of which had been sent to the persons and institutions mentioned in the article.

The application made by opponents Nos 2 to 5 to Dhebarbhai is reproduced verbatim and it refer to the incident of the night of 26-9-53 and to the insolent and haughty behavior of Alarkha and to his having created communal trouble, and says that although Alarakha openly committed offences under'' Sections 151 and 153, Penal Code, no steps were taken against him, and it finally requests that the Government should take immediate steps in order to prevent a recurrence of such events. The impugned article then says that in spite of the long lapse of time no action was taken by the Government and that Alarakha Hasan was even (missing) appointed by the Government on the Finance (missing) committee. It finally asks whether the (missing) would reads (missing) out of the (missing) becomes whose help the congress needed in order to help up its hold.

This petition is opposed by the first opponent on the ground first, that the article complained of does not amount to contempt of Court, and secondly that he had no knowledge of the complaint filed by Mohanlal Ladhubhai against Alarakha or of its hearings. Opponents Nos. 2 to 5 deny having done any act amounting to contempt of Court and they also deny having sent-to the ''Chet Machhendar'' a copy of the application dated 13-10-53 made to the then Chief Minister.

The first question arising for consideration is whether the impugned article amounts to a contempt of Court. The law on the subject of contempt of Court is to be found in Halsbury''s Laws of England, Second Edition, Volume 7 (Paragraph 8), and it says that contempt by speech or writing may be by scandalising the Court itself, or by abusing parties to actions, or by prejudicing mankind in favour of or against a party before the cause is heard. The above principle is deduced from Re Read and Huggonson AIR 1742 2 469 (A). Lord Russell'', C. J., summarised the law of contempt in Reg. v. Gray, 1900 2 QB 36 (B), and observed:

Any act done or writing published calculated, to bring a Court or a Judge of the Court into contempt, or to 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 course of justice or the lawful process of the Courts, is'' a contempt of Court.

This principle was accepted in Demibai Gengji Sojpal Vs. Rowji Sojpal and Others And In Re: Cooverji Keshavji Shah, The article complained of in that case made certain aspersions on the Defendants of a pending suit and His Lordship Mr. Justice B. J. Wadia observed:

There is no question of scandalising the Court. The question is only whether the editor has been guilty of abusing and vilifying, the parties to a pending suit in relation to their defence and thereby prejudicing a fair trial for them at the hearing. The test in such cases is not whether the writings have in fact obstructed or interfered with the administration of justice, or will obstruct or interfere with the administration of justice, but whether they are calculated to do so, or whether it is likely that they will have that effect. The intention of the writer may often be of secondary Importance; the question is what is the client of article, and have they a tendency to obstruct and interfere with the due and proper course of administration of justice?" The learned Judge further said: Another proposition which has been well established is that all proceedings in suits pending in a Court of justice are privileged, and any comment on the subject matter of The suit, and any abuse of the parties or holding them up to ridicule and contempt in the eyes of the public, whilst the suit is pending, are not allowed. In my opinion it would be simply disastrous for the due and proper administration of justice, if when a suit is still pending investigation in a Court of law that investigation was to be taken out of the hands of the Court and practically left to the press. The object of proceedings in contempt is not so much, to vindicate the dignity of the Court or the person of the Judge, as to ensure that every litigant in a Court of justice has a fair and unprejudiced hearing at the trial on the merits of his case. In Ananta Lal Singh and Others Vs. Alfred Henry Watson and Others, Rankin C.J., said:'' "One form of contempt which the Court always watches very narrowly is contemp that lakes the form of prejudicing mankind against persons who are on then trial rising an atmosphere of prejudice against them by comment, which is addressed to the public at large." The same view was taken by the Lahore High Court in the Full Bench case of In re Subrahmanyan, AIR 1943 Lah 329 which was followed in. Emperor v. Khushul Chand, AIR 1945 Lah 200

Now in the present case the criminal complaint filed by Mohanlal Ladhubhai against Alarakha Hasan was pending at the time of the publication of the offending article on 25th June 1955, and Alarakha Hasan was to enter on his defence on the 20-7-1953. Apart from the fact that the; article scandalises Alarakha as being a most undesirable person to be retained in the Congress fold, it definitely accuses him of conduct, which, according to the first opponent, is borne out by the contents of the application (of 13th October 1953) which he has published verbatim, and'' that application definitely charges Alarakha with having done certain acts which amount to creating communal tension and of committing offences under Sections 151 and 153, Penal Code. The article further says that Alarakha''s name, is reported to be heading the list prepared by the; police of notorious characters who are to be rounded up in the event of communal disturbances or riots. By painting Alarakha in such deep hue and holding him out as a notorious character creating communal disturbance, the article does definitely tend to prejudice him in his defence in the trial of charges which originated in a trouble of a communat kind, Therefore there cannot be the slightest doubt that the impugned article was calculated to interfere with the due course of Justice and was likely to prejudice Alarakha in his defence. The test is not whether it has actually obstructed or interfered with the due course of justice or has prejudiced him in his defence, but whether it is calculated or is likely to prejudice him in the pending case. It was urged for the first opponent that Alarakha has in fact been acquitted in; the criminal case; but that is scarcely a relevant consideration because the material time is the date of the publication of the article, and inasmuch as the case was then pending and Alarakha was about to enter on his evidence, it cannot be gain said that the publication of the article at such'' a time was likely to obstruct him in his defence and to interfere with the due course of Justice. Therefore it must be found that the offending article-does commit contempt of the Court.

The next question, and which is more vital in the present case, is whether the first opponent had knowledge of the criminal complaint filed by Mohanlal Ladhubhai against Alarakha. Now the article in question does not make mention of nor does it contain even an oblique reference to the complaint, and it is therefore urged by Mr. deahi that the article was really an Imitation-fog barbhai the President of the Congress to out of the Congress fold such undesirable persona However, the object or intention of the publilcation of the article is not relevant, and whatever may have been the object or intention, if the article abuses and vilifies a party to a pending case in a manner so as likely to prejudice him in the trial, then the article does commit contempt of Court. Again, to constitute a contempt adverse comment on a party need not refer to the subject matter of the pending proceedings and it is sufficient if it is clear that the comment tends to prejudice the trial of the action. (Halsbury''s Laws of England, Volume 7, Second Edition, P. 8, Paragraph 11), Therefore the fact that the impugned article here does not refer to the pending criminal case (missing) not have it iron contempt if the contempt tends to prejudice Alarakha in his defence, and as to this latter we have not the slightest doubt.

As regards knowledge, there is no positive material on the record to indicate that the first opponent knew of the criminal case or that it was still pending at the time of the publication of the article. It is held in AIR 1945 Lah 206 that before a person can be committed for con-tempt, the Court should be satisfied among other things that the offending matter was published with "he knowledge that the cause was imminent, (see also AIR 1943 Lah 329 The question of knowledge was considered in The The State Vs. Biswanath Mohapatra, and after stating that even If knowledge of the pendency of the case is not proved, contempt may be committed if the offender has knowledge of the imminence or the proceedings, Narasimham J. said: "The summary jurisdiction for punishing for contempt is exercised solely in the Interests of justice with a view to prevent trial by newspapers or by the public of a cause that is pending in a Court of justice. The essence of the offence consists in the tendency or likelihood of the offending article to interfere with the course of justice. It may be that the publisher of the article had no intention to interfere with the course of justice, He might also have acted in good faith. But these considerations are immaterial and the only test is whether the publication is calculated or likely to interfere with the course of justice. The law on the subject has been so strictly applied as to fasten vicarious liability even on the proprietor of the newspaper who might have had no knowledge." The learned Judge referred to the well-known St. Jame''s Evening Post case 1742 26 ER 683 (A) and Rex v. Evening Standard Co. Ltd., 1954 1 All ER 1026 (H), and to three other cases and said that these latter merely lay down that where absence of knowledge of the pendency of a case is fairly inferable, the Court may, in the special circumstances of each case, be justified is not proceeding for contempt against the offending newspaper or dealing with the newspaper somewhat leniently. I such absence of knowledge may be interfered either from the unchallenged statement of the alleged condemner or from the internal evidence furnished by the offending article itself. According to the learned Judge, the decisions referred to were no authority for the proposition that in proceedings for contempt, the prosecution should affirmatively establish that the offender had actual knowledge of the pendency. Thus, there appears to be a little cleavage of opinion on the question of the contemner''s knowledge, but it is not real or substantial, and what is of essence is that the knowledge should appear either from the impugned matter or from the other materials in the case. Adopting the standard laid down in the above Orism case, so far as the impugned article in this case is concerned there is not the internal evidence that the first opponent knew of the criminal case against Alarakha or that it was pending at the time. He denies that he had such knowledge, and there is no evidence to the contrary from the applicant''s side or otherwise. The article was published merely one year and nine months after the institution of the criminal complaint, and considering that it was an ordinary case which would not take long to dispose of, It is probable that the first opponent was not aware of the pending case at the time of the publication of the clinding matter At any rate, tho question is not free from doubt. The mere fact that the article was published about twenty-five days before Alarakha was to examine the defence witnesses may oven be a fortuitous circumstance; at the highest, it might create a suspicion but that is not sufficient for proving knowledge on the part of the first opponent. This inference is reinforced by the fact that the article: is published when Alarakha was appointed by the Government on the Finance Advisory Committee and not earlier But apart from it, on the available material on, the record it will not be proper to hold that the first opponent had the knowledge of the pending| prosecution and that he published the article with in that knowledge. Therefore, even if the article is calculated or tends to prejudice Alarakha in his trial, it would not be proper to convict the first opponent of contempt of Court, and the notice as against him will therefore be discharged.

As for the remaining opponents, they are alleged to have committed contempt on account of Minister Mr. Dhebar on 13-10-1953. Of them, Nos. 2, 3 and 4 were actually cited as witnesses in the complaint filed by Mohanlal Ladhubhai and it may be presumed therefore that they were aware of the pending criminal case; and inasmuch as opponent No. 5 has joined the other opponents in making the application to the Chief Minister, it may also be reasonably inferred that he was aware of the pending criminal case. Their action In applying to the Chief Minister will therefore no doubt amount to contempt of Court. It was no doubt improper for them to apply to the Chief Minister when the case was pending and their conduct therefore amounts to contempt of Court; but considering that this was done nearly one year and nine months prior to the present application, we do not think we should take any serious view of the same. The contempt is slight and I do not require interference of the Court by summary jurisdiction of contempt. These opponents deny having furnished opponent No. 1 with a copy of their application dated 13-10-1953 or having anything to do with the publication thereof in the article appearing in the issue if the Chet Machhendar'' of 25-6-1955, Mr. Sinroja for the applicant has fairly conceded this position and the does not seek to hold them liable for being connected with the publication of the offending article.

For the above reasons, we dismiss the application, but in the circumstances of the case we make no order as to costs.

Baxi, J.

I agree.