H.D. Rajah vs C.H. Witherington and Another

The respondents, the editor and printer of a magazine called ""Review of India"" have been ordered to show cause why they should not be

committed for contempt of Court.

The facts are not in dispute.

An order was issued by the Presidency Magistrate, Madras, against one Harihar Dharma Rajah u/s 112, Criminal Procedure Code, to show

cause why he should not be bound over u/s 110(f), Criminal Procedure Code. The learned Magistrate finding that Harihar Dharma Rajah was

instilling revolutionary ideas in the minds of young persons, ordered him to find security and on his failure committed him to jail on 20th September,

1933. He appealed to this Court and in order not to undergo imprisonment he furnished the required security on 25th October, 1933. While the

appeal was pending a paragraph appeared in the November number of the respondents'' review to the effect that a terrorist who was in jail in

connexion with a scheme in Madras to send poisoned handkerchiefs to officials as Christmas presents had been released on bail presumably to

enable him to proceed with his plan of preparing poisoned handkerchiefs. Neither in the findings nor in the evidence in the security proceedings is it

suggested that Harihar Dharma Rajah was intending to send out poisoned handkerchiefs, and of course the suggestion that the Court had released

him on bail in order to enable him to proceed with this plan is in the highest degree offensive. The respondents have filed affidavits tendering their

sincere regret, and stating that they were not aware that an appeal was pending. It might have occurred to them that there would be no question of

bail unless proceedings were pending, and, no matter what false opinion of the facts they may have conceived, there could be no possible

justification for their saying that the Court had released the prisoner to enable him to prepare poisoned handkerchiefs.

We find that the respondents have committed a contempt of Court, and order that they each pay a fine of Rs. 100 to His Majesty the King-

Emperor and do pay the costs of this motion--special costs since a legal argument was raised Rs. 250.

It might have been hoped that the proceedings would have terminated with this unqualified apology, and submission to the authority of the Court

for apology is not as a rule coupled with argument; but the respondents have further instructed the learned Advocate-General to challenge our

jurisdiction and a whole afternoon has been occupied with this question, although in the affidavits filed by the respondents no such question of

jurisdiction has been raised. There can be no doubt but that this Court as a Court of Record has jurisdiction in all matters of contempt of Court

arising in the Madras Presidency. So much is conceded; but the learned Advocate-General argues that because the offenders happen to reside in

Calcutta, the hands of this Court are tied. A party can malign prisoners and insult Courts to the top of his bent, so long as he is careful to be

beyond the territorial jurisdiction of the Court when notice issues. We find no warrant for this view of the law. Contempt of Court is not an offence

within the ambit of the Penal Code, but nevertheless it conforms to the ordinary rule that the jurisdiction of the Court is determined by the place

where the offence is committed, and not by the place where the offender may happen to reside. (cf. Section 177, Criminal Procedure Code.) If an

offender has removed himself beyond the territorial jurisdiction of the Court, there may be difficulty both in securing his appearance and in

executing his sentence, but that is not to deprive the Court of jurisdiction over the offence. Nor in the present case is there any difficulty over the

appearance of the party, because the respondents have appeared, and apologized, and submitted to the jurisdiction. The only possible difficulty

that can arise is if they succeed in removing themselves from the Court''s jurisdiction before the execution of the penalty, and that is not a matter

which need be'' considered at this stage. The learned Advocate-General finds an analogy between this case and a case where the Court of King''s

Bench in London may issue a writ of Habeas Corpus to some remote place which is not otherwise within the jurisdiction of a Court of Record; but

that is rather to assume that the present contempt has been committed outside the territorial jurisdiction of this Court. If the respondents had

confined the circulation of their review to Oates Land the analogy might be more happy, and it would be necessary to follow the learned

Advocate-General along his excursus into the origin of the Court of King''s Bench and its relation to other Courts of Record; but in the present

circumstance it seems to be rather beside the point.