Robkar Adalat vs Aseem Kumar Sawhney and Another

Tejinder Singh Doabia, J.—""Pen is mighter than sword"". This proverb seems to have been totally misunderstood by the respondent-

members of Fourth Estate. One of the respondents' to this petition i.e. respondent No. 2 is a practising advocate and the other is keen to join this

profession.

The Stuart Kings, who claimed to rule by Divine Right, refused to believe that 'the King is under no man but under God and the Law."" When

confronted by the Chief Justice of England, Sir Edward Coke, James-I declared ""Then I am to be under the law. It is treason to affirm it."" Do the

respondents have the same notion? The members of the Fourth Estate may be under no man, but they are definitely under the ""Law"". In our

democratic polity and the Constitution based on the concept of rule of law, which we have adopted and given to ourselves and which serves as an

aorta in the anatomy of our democratic set up. ""The Law is Supreme"". Law in its wisdom considers it of greater consequence that the stream of

justice by kept clear and it must in the name of public interest and public justice strike a blow on him who challenges its supermacy. Before I

proceed to notice the factual and legal position, with a view to determine as to whether respondents have, in fact, fouled the very source and the

stream. I would like to quote what Davis, C.J., said in the leading judgment of Full Bench in ""Emperor v. P. C. Tarapore AIR 1940 Sind 239 :

1941 CriLJ 1 :

It is immaterial whether the attack on the Judge is with reference to a case about to be tried or actually under trial or recently adjudged; in each

instance the tendency is to poison the fountain of justice to create distrust and destroy the confidence of the people in the Courts which are of

prime importance to the public in the protection of their rights and liberties. And an offence is in no way mitigated when the attack is not upon a

particular Judge but upon the Court as a whole, indeed, upon all the Judges.

The facts are given hereafter :

Respondent No. 1 to this petition, is the Editor and Publisher of the newspaper, namely 'Journey Line' (Weekly). He is a student of Law also.

Respondent No. 2, a practising Advocate of this Court, in the editorial written in the issue of 1lth to 17th Dec. 2000, of this newspaper, has

described himself as the Chief Patron of this newspaper. He was, for some time the standing counsel for Union of India. He also had a short stint

as an ad hoc Judicial Officer in the State of Jammu and Kashmir. The respondents are thus aware of the niceties of 'Law'. It is in the light of their

this standing, the publication in the above newspaper has to be taken note of. It is in this publication, a reference has been made to a litigation in

which the proceedings taken u/s 185 of the Cantonment Act were challenged. An interim order was passed by this Court in the writ petition. This

happened on 29th Oct. 1985. The petition remained pending in this Court. As per the news item, thirteen years long pendency in this Court helped

and enabled the writ petitioner to raise a construction. The exact words used are, ""Case continued for 13 long years and the petitioner had the fruit

of this order. The construction was fully raised during these years and the writ petitioner in the above writ petition was ""benefitted"". After

highlighting this factor, the news item goes on to narrate that on 25th Sept. 1998, a ""Bench was shifted from Jammu to Srinagar, for a few days,

Ultimately, the writ petition was disposed of."" Cognizance of this news item was taken when some Advocates of this Court read this news item in

Court. They pointed out that the publication in question is suggestive of the fact that the interim order dated 29-10-1985 was passed to benefit the

writ petitioner and that a Bench was constituted for a purpose; the purpose was to deal with the particular case in which above interim order came

to be passed in the year 1985. It was pointed out that this tends to interfere with the system of administration of justice. A direct insinuation was

made. This was to the effect that a particular Bench was constituted with a purpose; the purpose being to deal with a particular case. As the

constitution of Benches and the further question as to what matters are to be put before a particular Bench, is a matter on which the decision has to

be taken by the Hon'ble Chief Justice of this Court, it was accordingly, as noticed above, pointed out that an insinuation has been directly made

against the then Chief Justice.

Taking note of the above point of view, notice was issued to the respondents, to appear in this Court. They were to appear on 14th Dec, 2000.

The case was adjourned to 15th Dec, 2000. On 15th Dec, 2000, the personal appearance of respondent No. 1 was exempted, respondent No.

2, however, was directed to remain present on the next date i.e. on 19th Dec, 2000. Respondent No. 2 has put in appearance. He has filed the

reply. This was taken on record as annexure C.I. What is stated in paragraphs 1 and 2 of the reply, is being reproduced below :

(1) That I am the Chief Patron of the News Weekly Journey Line.

(2) That I have the highest regards for the judicial institution and reverence for all members of the Bench and as responsible Lawyer and Chief

Patron of the paper can never conceive of disrespecting the Court in any manner.

I hereby tender my unconditional apology before the Court.

Respondent No. 2 also supplemented what was stated by him by filing further reply. This was also taken on record as C-2. For facility of

reference, this is also being reproduced below :

In response to a notice issued by this Court, I submit that the publication in question was never intended to in any way interfere with the

administration of justice, which is being administered by this Court. I have full faith in the system of justice which is being administered by this Court

and other judicial forums in this Country. I submit that after going through the Notification dated 4-8-1998 and Notification dated 13-10-1998, it

has transpired that the concerned Judge was not sent to Srinagar Bench on 25-9-1998. The mentioning of the date in this regard was unintentional.

I submit that there was no intention to indicate that the concerned Judge was sent there with a view to deal with that particular case. The statement

furnished dealing with disposal of cases in this regard does indicate that only old cases were allocated to the concerned Judge. These facts were

not within my knowledge. This led to the publication in question. There was absolutely no intention to undermine the authority of law or to bring the

system of administration of Justice to disrepute. In line with the reply to the show cause notice, unconditional apology is being tendered.

Later on respondent No. 2 filed his reply on 26th Dec. 2000. The reply given by him is being reproduced below :

(1) That the High Court Notice has been received and I have gone through the said order of the Hon'ble Court.

(2) At the very outset I make it clear that I have no intention to undermine the administration of justice system and particularly the authority of your

Lordship in any manner.

(3) That the paper has always tried to highlight the reforms in the system introduced and the high, disposal as in the 'year of action' declared by the

Hon'ble Chief Justice of India.

(4) That final disposal of the cases in J & K High Court is second to none in the country and particularly of this Bench.

(5) That I am a law student and intend to join this noble profession of law, so even in my wildest thoughts I cannot think of undermining the prestige

of the Bar and Bench or undermine the judicial system in any manner which I intend to be part of.

(6) That the suggestive words taken from two paragraphs of my article never intended to convey this meaning as mis-suggested/misunderstood.

(7) The paragraph also has some spelling mistakes, which were published without prior proof reading - personally by me.

(8) Had it been read out by me I would have otherwiswe also changed the complexion of the paragraph.

(9) The two paragraphs intended to convey the time contrast - wherein the cases which were lingering on since 1985 or so on were assigned to

your Lordship which I have come to know from the information supplied along with to me paper by the Court.

(10) I only intended to convey about the speedy disposal in the context of 'year of action' of the judiciary in the year 1998-99 and the media and

general public appreciated this gesture of judicary as a whole. As a student of LLB, I took in this spirit and intended to convey this that cases

lingering on since years were disposed of in a time span of Lordship's transfer at Srinagar.

(11) The two words 'ultimately' and 'finally' in the said para together try to emphasize on the fate (final disposal) of the pending cases since 13-15

years in a time of 3 months approx of Your Lordships' stay at Srinagar, with the order of Lordships Chief Justice dated 4-8-1998 and 13-10-

1998. The two words with the same meaning try to put stress about the 'disposal of these long lingering cases and unfortunately I have been

misunderstood in the paras and I express my sincere regrets for the same. The paper's Chief Patron has already published a letter to the C.J.I.

wherein the paper has tried to clear its position honestly and with sincere efforts to further improve the entire complexion of Journey Line.

(12) The intentions of Journey Line in the letter published go much beyond the scope of the notice of the High Court in the case so as to make it

clear before the Court our intentions and our high reverence and respect for the Bench and the Judicial system. I enclose herewith the subsequent

publication of Journey Line wherein the letter has been published which further clears my intentions. I express my sincere apologies to your

Lordship.

Sd/-

Aseem Kumar Sawhney

Editor, Journey Line Weekly

Newspaper.

On the same date, a further reply was given by him. Paras 1 and 2 of the reply so given is also being reproduced below :

(1) That in continuation to the respondent No. l's reply, it is submitted that I am student of Law and I am depending on my sources and staff and

associates including some journalists in publishing the weekly Journey Line.

(2) That I am not actively participating in the functioning of the paper at present because I am involved in my studies and it appears that some

stories were published in Journey Line without proper verification.

In para 3 of the reply, the editorial published by the Chief Patron of the newspaper in the said newspaper of 11th to 17th Dec. 2000 stands

reproduced. This para is also being reproduced :

(3) To this the Chief Patron has clarified the position by writing and publishing a letter to the Hon'ble Chief Justice of India, in Journey Line's issue

No. 8 dt. 25th Dec. to 31st Dec. 2000.

The contents of this letter are quoted herein which clarify our position and intentions :

I take liberty of writing this letter to your Lordship to convey my deep sense of regret and serious apologies for certain publications made from

time to time about your Lordship and Your Lordship's family members in Journey Line. I published various stories about certain writ petitions filed

in the High Court of Jammu and Kashmir and certain dealings in land as I was misled in believing that they were correct. Now I realise that I ought

to have verified the authenticity and correctness of information and documents supplied to me before publishing the same.

I find that various documents which I published from time to time in Journey Line and on which news was based, formed part of writ petition No.

1275/88 filed in the Supreme Court way back in the year 1988. Now I find that those allegations and statements were not pressed and were

withdrawn by the writ petitioners. I wish I had taken proper care to verify the facts and authenticity of information and documents supplied to me

by various persons claming to be journalists, members of legal fraternity and public spirted people. Had I done so, I might have been saved from

the embarrassment which I am facing today on account of my publications. Now on detailed verification, I find that the allegations communicated

to me were motivated and false and formed part of the writ petition referred to above, 1 was never informed the factual position. I was misled to

believe that informations given to me were correct and documents supplied to me were genuine.

A number of persons, including some journalist also met me and gave lot of informations and told me number of stories. Unfortunately, without any

verification. I believed them to be true. Being relatively new In journalism, I thought I should publish all that I was told and documents supplied,

Now I find that some people with vested interests and grudge against your Lordship supplied me with informations which were not true. Like all

other persons in the State of Jammu and Kashmir, I have also highest regard for your Lordship. Your Lordships is known for the highest integrity

and high principles. I know that I have hurt the feeling of your Lordship' and Your Lordship's family members by publishing stories based on

distorted and false informations and documents. I sincerely apologize for the same. I assure your Lordship that I will be extremely cautious, careful

and circumspect in publishing any news about any persons. I will change the entire complexion of Journey Line and make it more constructive.

Once again, I seek apology from your Lordship for having hurt your Lordship's feelings, I also avail of this opportunity to express my deep regret

to all concerned who might have been hurt by my such publications. I assure your Lordship and the public in general that no news shall ever be

published in Journey Line in such cavalier manner without investigation. I sincerely hope that your Lordship will accept my sincere apologies and

treat me affectionately in same manner as in the past. As it may be difficult for me to get an appointment from your Lordship during your Lordship's

short visit to Jammu tomorrow, I propose to deliver this letter to the Hon'ble Chief Justice of the High Court of Jammu and Kashmir for handing

over trie same to your Lordship.

With sincere regards.

Sd/- A. K. Sawhney Advocate

Chief Patron Journey Line.

Ultimately apoligy was tendered in the following words ;-

once again I humbly submit my sincer-. est apology, which may kindly be accepted.

Sd/- Respondent.No. 1

Aseem Kumar Sawhney,

Editor,

Journey Line,

Weekly Newspaper.

It is thus stated that this respondent had no intention to undermine the system of administration of justice. He pointed out that on account of spelling

mistakes and on account of incorrect proof reading certain impressions have been created which impressions were never sought to be created, It is

in this manner suggested that there was no intention to bring the system of administration of justice into disrepute. At the same time unqualified

apology has also been tendered.

The question arises as to whether the publication in question requires to be dealt, with under the Contempt of Courts Act.

The privileges of the Press in India be briefly noticed :

The privileges which the 'Press' enjoys in India are the same as in England. In England, freedom of speech and liberty of the press were secured

after a bitter struggle between the public and the crown. The liberty of press in England was interdicted. News could not be published without

licence. It was in 1865, when the House of Commons refused to renew the Licensing Act and the lapse of that Act marked the triumph of the

press for thence forth the liberty of press was recognized although it was at the peril of rigorous application of law of libel. William Blackstone in

his 4th Book of Commentaries, published in 1769, at page 145 says :

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restrains upon publication and not in

freedom from censure for criminal matter when published. Every free man has an undoubted right to say what sentiments he pleases before the

public; to forbid this, is to destory the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the

consequences of his own temerity.

Again, the May's Constitutional History of England Vol. II, pages 240-41, makes a vivid reference to this struggle. A reference from this book is

illustrative and reads as under:

Nothing marked more deeply the tyrannical spirit of the first two stuarts than their barbarous persecutions of authority, printers and importers of

prohibited books; nothing illustrated more signally the love of freedom than the heroic courage and constrancy with which those persecutions were

borne.

The contents of freedom of press are the same even in the United States of America. It will also be instructive to refer to the observations of

Frankfurter, J. of United States of America in Pennekamp v. State of Florida (1946) 90 LEd 1295 ;

The press does have the right which is its professional function to criticise and to advocate. The whole gamut of public affairs is the domain for

fearless and critical comment and not the least the administration of justice. But the public function which belongs to the press makes it an

obligation of honour to exercise this function only with the fullest sense of responsibility, a free press may readily become a powerful instrument of

injustice. It should not and may not attempt to influence Judges or juries before they have made up their minds on pending controversies. Such a

restriction which merely bars the operation of extraneous influence specifically directed to a concrete case in no way curtails the fullest discussion

of public issue generally.

In Toledo Newspaper Com v. United States of America (1918) 247 US 402 the Chief Justice of the US Supreme Court while delivering the

opinion of the Court, observed at page 410 :

The safeguarding the fructification of free and constitutional institutions is the very basis and mainstay upon which the freedom of the press rests and

that freedom therefore, does not and cannot be held to include the right virtually to destroy such institutions. It suffices to say that, however,

complete is the right of the press to state public things and discuss them that right as every other right enjoyed (sic) a human society is subject to

the restraining which separates right from wrong doing.

In short, as regards citizens running a newspaper the position under the Indian Constitution is the same as it was when the Judicial Committee

decided the case of Arnold v. Emperor AIR 1914 PC 116 : 1914 CriLJ 309. This was a case of an appeal by the editor of a newspaper against

the publication for criminal libel u/s 499 of the Indian Penal Code. Lord Shaw of Dunformline in delivering the judgment of the Privy Council made

following observations at page 169 :-

Their Lordships regret to find that there appeared on the one side in this case the time worn fallacy that some kind of privilege attaches to the

profession of the Press as distinguished from the members of the Public. The freedom of the journalist is an ordinary part of the freedom of the

subject and to whatever lengths the subject in general may go so also may the journalist, but apart from statute law, his privilege is no other and no

higher. The responsibilities which attach to his power in the dissemination of printed matter may and in the case of a conscientious jouralist do

make him more careful, but the range of his assertions, his criticisms or his comments is as wide as and no wider than that of any other subject. No

privilege attaches to his position.

What was said by Lord Mansfield in R. V. Dean of St. Asaph (1784) 3 TR. 428 , holds good even today. He said that :

The liberty of the press consists in printing without any previous licence subject to the consequences of law.

In Express Newspapers (Private) Ltd. and Another Vs. The Union of India (UOI) and Others, , it was held that the liberty of the press in India

stands on no higher footing than the freedom of speech of citizens. The Courts have negatived the claim of special privilege of the press as often as

it has been asserted.

I am conscious of the fact that liberty of the press is equally important but this cannot be permitted to subvert usefulness and efficiency of the

Courts. Lord Denning M.R. in Morris v. The Crown Office (1970) 1 All ER 1079, said that ""the Course of justice must not be deflected of

interfered with. Those who strike at it strike at the very foundation of our society.

Lord Fitz. Gerald in Macdougall v. Thomas Knight (1889) 14 AC 194 observed :-

The privilege which attaches to the publication of the proceedings of Courts of justice rests on the foundation that the law of this land is

administered publicly and openly and its administration is at once subject to and protected by the full and searching light of public opinion and

public criticism. Openness and publicity of our Courts forms one of the excellences of our practice of the law and admits of exception only in rare

cases of such a character that public morality requires that the proceedings should be in camera wholly or in part.

A publication in newspapers of reports of proceedings before a Court of law must be true and accurate and that it must be without malice. This

is made amply clear by the decision in the Court of Appeal in 'Kimberv. The Press Association Ltd. (1893) 1 QB 65.

In Perspective Publications (P) Ltd. and Another Vs. State of Maharashtra, , Hon'ble Mr. Justice A. N. Grover, summarised the principles

dealing with contempt. It would be useful to quote them :

There can be no manner of doubt that in this country the principles which should govern cases of the present kind are now fully settled by the

previous decisions of this Court. We may restate the result of the discussion of the above cases on this head of contempt which is by no means

exhaustive.

(1) It will not be right to say that committals for contempt scandalizing the Court have become obsolete.

(2) The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the

proper administration of law and justice.

(3) It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity or even to make

a proper and fair comment on any decision given by him.

(4) A distinction must be made between a mere libel or defamation of a judge and what amounts to a contempt of the Court.

The test in each case would be whether the impugned publication is a mere defematory attack on the judge or whether it is calculated to interfere

with the due course of justice or the proper administration of law by his Court. It is only in the later case that it will be punishable as contempt.

(5) Alternatively the test will be whether the wrong is done to the judge personally or it is done to the public. To borrow from the language of

Mukherjee, J. (as he then was) Brahma Prakash Sharma and Others Vs. The State of Uttar Pradesh, ; AIR 1954 SC 10 : 1954 Cr LJ 238, the

publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the

integrity, ability or fairness of the Judge or to deter auctual and prospective litigants from placing complete reliance upon the Court's administration

of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.

The decision of the Supreme Court in the case of Sammbhu Nath Jha Vs. Kedar Prasad Sinha and Others, , be also taken note of, wherein it

was observed (Para 12) :

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 authority or to obstruct the due course of justice or due administration of law...in

such cases the Court would exercise circumspection and judicial restraint in the matter of taking action for contempt of Court. The Court has 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 other sufficient reason the person proceeded against should be punished for contempt of Court.

In this regard, I would refer to the decision given in "" Advocate-general, State of Bihar Vs. Madhya Pradesh Khair Industries and Another, ,

wherein the Supreme Court observed as under (para 7) :

...it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus

extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The public have

an interest, an abiding and a real interest and a vital stake in the effective and orderly administration of justice, because, unless justice is so

administered, there is the peril of all rights and liberties perishing.

The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit

for contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression ""contempt of Court""may seem to

suggest but to protect and to vindicate the right of the public that the administration of justice shall not be prevented, prejudiced, obstructed or

interfered with.

The press as such can claim no special privilege.

In the matter of awarding punishment, what was said by Frank Furter J. in Offuttv. U.S. (1954) 348 US 11, be noticed. He said that 'it is a

mode of vindicating the magesty of law, in its active manifestation against obstruction and outrage'.

Again in Jennison v. Baker (1972) 1 All ER 997, it was said that 'the law should not be seen to sit by simply, while those who defy it go free and

those who seek its protection lose hope.' It would again be useful to quote what Lord Salmon said in Morris v. The Crown Office (1970) 1 All ER

1079. According to him, 'the sole purpose of proceedings for contempt is to give our Courts the power effectively to protect the rights of the

public by ensuring that the administration of justice shall not be obstructed or prevented'. To punish an editor of a newspaper must be regarded as

an extreme measure but to preserve the proceedings of the Court from being deflected or interfered with, the Courts can be guided by what was

said by the Supreme Court in the case of Pritam Pal Vs. High Court of Madhya Pradesh, Jabalpur through Registrar, , where it was observed that

(para 62) :

Punishment is essential to preserve the proceedings of the Courts from being deflected or interfered with and to keep the streams of justice pure,

serene and undefiled, it becomes the duty of the Court, though painful to punish the contemner in order to preserve its dignity. No one can claim

immunity from the operation of the law of contempt of this act or conduct in relation to Court or Court proceedings interferes with or is calculated

to obstruct the due course of justice.

From the judicial pronouncements noticed above, it becomes apparent that:

(i) the liberty of the press is essential to the nature of free State;

(ii) if something is published in a newspaper, which is improper, mischievous, then its author must take the consequence of its (his) own temerity;

(iii) a person found to be guilty of publishing a material which is calculated to bring a Court or a Judge into contempt or to lower his authority must

suffer the consequences;

(iv) the punishment is essential to preserve the proceedings of the Court from being deflected or interfered with.

From the factual and legal position noticed above, it becomes apparent that respondent No. 1 who is the Editor, Printer and Publisher and

respondent No. 2, who is the Chief Patron of the aforementioned newspaper by making the publication in the said newspaper did try to bring the

system of administration of justice into disrepute. It was first suggested :

(i) that some interim order was passed with a view to ""benefit"" the writ petitioner;

(ii) that the interim order continued for thirteen long years;

(iii) that a specific Bench was constituted for dealing with the matter;

(iv) a Judge was sent from Jammu to Srinagar to deal with the said matter;

(v) As indicated above the power to constitute Benches is exercised by the Chief Justices of High Courts and therefore, there is a direct insinuation

against the then Chief Justice;

(vi) that the use of the word, 'then' is suggestive of the fact that a particular matter was required to be dealt with by the Bench constituted for the

purpose.

This news item thus clearly brings the system of administration of justice into disrepute. This would definitely fall within the definition of term

'criminal contempt' as occurring in Clause 2(c) of the Jammu and Kashmir Contempt of Courts Act.

Respondent No. 2, as indicated above, is a practising Advocate of this Court. He has been a Standing Counsel for Union of India. He was an

ad hoc Munsiff in this state for a short span of time and therefore, it cannot be said that he did not understand the implication of publication.

Therefore, to say that the publication in question was an innocent act and no other motive should be attributed to it, would be a suggestion which

cannot be accepted. Respondent No. 2 knowing fully well the implications, deliberately published the aforementioned news item and this would

prima facie fall within the definition of criminal contempt.

So far as respondent No, 1 is concerned, he is as indicated above, the Editor, Publisher and Printer of the said newspaper. He is also a

student of law. He appears to be acting under the advice of Chief Patron. Nevertheless, he cannot be absolved of the consequences of this

publication.

At this stage it would be advantageous to deal with the power of a single Judge of the High Court to deal with contempt matters. Without going

into old precedents on the subject one precedent which is directly on the point is required to be taken note of. A Full Bench of five Judges of the

Punjab & Haryana High Court in the case reported as Court on its own Court on its own motion Vs. Kasturi Lal and Others, has held in

categorical terms that a single Judge of the High Court is in no way barred from initiating proceedings for Criminal Contempt and Section 18 of the

Contempt of Courts Act presents no impediment to the exercise of this limited power. It was observed that Section 18 has no bearing or relevance

to either the taking of cognizance u/s 15 or to the initiation of proceedings and issuance of notice u/s 17. The words 'heard and determined' as used

in Section 18 are not to be read as individual isolated words, but conjointly as a phrase. The legal phrase 'heard and determined' is not to be

applied to any and every step taken in the contempt jurisdiction, but has obvious relevance only to the final trial and adjudication of criminal

contempt. It would be manifest that this phrase would have little relevance to the preliminaries of procedure laid out in Sections 15 & 17. It is only

when the con-temner has appeared and a final adjudication of the matter is to be made then the provisions of Section 18 and the phrase, ""heard

and determined"" is attracted. It is at this stage only that the Legislature in its wisdom has provided that the same should be heard and determined

by a Bench of two or more Judges. The proceedings u/s 15 involves no determination as such nor do the proceedings u/s 17 decide anything till

the contemner appears and makes his defence. Mere cognizance of criminal contempt u/s 15 and the initiation and notice to the contemner u/s 17

are thus obviously different from and in essence distinct from the final hearing and determination which has been provided for u/s 18,

It was further observed in Court on its own motion Vs. Kasturi Lal and Others, that reading the provisions together, it is apparent that both in

consequence and in effect, the provisions of Section 18 come into play only after the preliminaries of taking cognizance u/s 15 and if necessary, the

initiation of proceedings and service of notice u/s 17 etc. and the consequential procedural requirements spelt out therein have been complied with.

It is in this particular context that the mandate is then laid down with regard to the final hearing and determination by a Bench of not less than two

Judges. The preliminary steps envisaged by Sections 15 and 17, would set the stage for the final adjudication would not require the necessity of a

Division Bench or a larger Bench and would, therefore, be well within the jurisdiction of a single Judge of the High Court.

It be seen that the provisions of the Jammu and Kashmir Contempt of Courts Act are in part materia with the Central Act. Therefore, what

was said by a Full Bench of the Punjab & Haryana High Court would be squarely attracted to the interpretation of this statute as well. I am prima

facie of the opinion that the respondents have published a matter which does fall within the definition of Criminal Contempt and they are required to

be dealt with further under the provisions of Section 18 of the Act. Therefore, Registrar (Judicial) is directed to place the file before the Lord Chief

Justice, with a request to the Lord Chief Justice, to constitute a Division Bench or a Bench of more Judges at the earliest. Subject to the decision,

which may be taken by my Lord Chief Justice, the file be placed before the Division Bench or such number of Judges, as my Lord Chief Justice

may determine at the earliest.

Before parting with this order one notion which no doubt stands dispelled 60 years ago by a Full Bench decision of the Lahore High Court,

reported as In Re K. L. Gauba AIR 1942 Lah 105 : 1942 CriLJ 599, requires to be dispelled again, Initially there was a whisper to the effect that

a Judge who is affected by the publications should not hear the matter, This whisper however, remained a whisper only, However, as indicated

above, this notion also requires to be dispelled. In the Full Bench before the Lahore High Court in K. L. Gauba's case, number of objections were

taken to the initiation of contempt proceedings. The contemner had published a book 'The New Magna Charta'. Scandalous allegations were

made against the Chief Justice of Lahore High Court and a sitting Judge of that Court. When contempt proceedings were initiated against the said

K. L. Gauba, the following preliminary objections were raised :

(i) that the Chief Justice of that Court had no power under the law to constitute the Bench;

(ii) that the Court had no jurisdiction to punish brevi manu any contempt ex facie curiae;

(iii) that as the publication oasts serious reflections on the Chief Justice of that Court and another Judge of that Court in their capacity as Judges of

that Court, they are disqualified from sitting as members of the Bench.

These objections were overruled. The decision given in (1850) 36 Mis 341, Watson v. Williams was referred to wherein Harris J. observed as

under :

The power to fine and imprison for contempt from the earliest history of jurisprudence has been regarded as a necessary incident and attribute of a

Court, without which it could no more exist than without a Judge; it is a power inherent in all Courts of Record and co-existing with them by the

wise provisions of the Common Law.

Again the view expressed by Grey C.J. in Cartwright's case (1873) 114 Mass 238, was quoted. What was quoted is being quoted again :-

The summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice is inherent in Courts of

Chancery and other superior Courts, as essential to the execution and to the maintenance of their authority and is part of the law of the land.

The view expressed by the Privy Council dealing with the powers of Courts of Record and as indicated in William Rainy v. The Justices of

Sierre Leone 1852 8 Moore 47 was quoted as under :

In this country every Court of Record is the sole and exclusive Judge of what amounts to a contempt to impose fines for contempt and unless there

exists a difference in the constitution of the Recorder's Court at Sierre Leone the same power must be conceded to be inherent in that Court...we

are of opinion that it is a Court of Record and that the law must be considered the same there as in this country.

It was ultimately concluded as under :

These observations of the Privy Council are conclusive on the point. The High Court of Lahore is a Court of Record and therefore, possesses the

ordinary jurisdiction of a Court of Record to commit for contempt. The reasons why the Court must possess this jurisdiction and why it is not

possible as suggested by K. L. Gauba, for a Judge to pursue a remedy for libel or slander in a civil or criminal Court, are stated as follows by

Emperor Vs. Murli Manohar Prasad and Others, .

It must be remembered that a Judge by reason of his office is precluded from entering into controversy in the columns of the public press. Whether

the comments be of a permissible or of an improper character he cannot enter the arena and do battle with his adversary upon equal terms. A

Judge of a superior Court is moreover precluded by considerations of decency from having recourse to the remedy available to any other citizen of

whom defamatory words are spoken or written that is to say, of taking proceedings for libel or slander before the ordinary tribunals which are

subject to his own jurisdiction and he requires therefore, in the exercise of his office a special protection in order that his authority and dignity may

be maintained.

As a matter of fact, it was observed that if a Court of Record was not possesed of summary jurisdiction to punish contempt of Court, it would

not be also to function. It was concluded :

If a Court of Record was not possessed of this summary jurisdiction to punish contempt of itself by summary procedure, it would not function. I

hold that we have the power to proceed summarily in this matter. No authority has been cited in support of the proposition that the Criminal

Procedure Code is applicable to summary proceedings taken for punishing a contempt. But even if Section 344 of the Code be applicable, I am

not disposed to adjourn the proceedings because in a case where the Court is scandalised and an attempt is made by a scurrilous publication to

undermine and impair the authority of the Court, immediate action is necessary with a view to vindicate the authority of the Court. I therefore,

disallow the application for adjournment. As already stated the provisions of the Code of Criminal Procedure are not applicable to the present

proceedings. Section 556 therefore, does not apply (1990) 2 QB 36, R v. Grey is an authority for the proposition that 'proceedings for punishing

contempt are taken note with a view to protect either the Court as a whole or the individual Judges of the Court from a repetition of the attack, but

with a view to protect the public and specially those who either voluntarily or by compulsion, are subject to the jurisdiction of the Court, from the

mischief they will incur if the authority of the tribunal be undermined or impaired. The gravamen is an endeavour to shake the confidence of the

public in the Court.

The question that as the publication cast's reflection on the Chief Justice and another Judge of that Court and therefore, they could not be

sitting members of the Bench was gone into. What was said by the Full Bench of Lahore High Court is being reproduced below :

If there was any force in this contention, the contemner with a view to oust the jurisdiction would have merely to scandalise not a particular Judge,

but all the Judges of the Court as a whole in order to escape from punishment. In such cases the practice has been for the Judges who have been

defamed to hear the case and to state in the judgment the facts within their knowledge or their reasons for taking a particular course of action. The

Judges concerned sat in the following cases :

AIR 1918 Cal 988. In re Moti Lal Ghose.'

Emperor Vs. Murli Manohar Prasad and Others, . in the matter of William Tayler.

Again in the above case, K. L. Gauba 1942 CriLJ 599, made an attempt to justify his conduct. He furnished a list of 25 witnesses. This

application was rejected holding that this course is not available to him. As in the attempt to justify the libel on a Judge and to make an attempt to

show that the libel is justified, would lead to a fresh contempt. It was observed that the contemner who has been called upon to show cause as to

why he should not be punished for attack on the Court or the Judge, does not have a right to defend and does not occupy the position as a

defendant in a libel action where he may plead or prove justification or the position of an accused person in a prosecution for defamation. It was

accordingly held that the Court of Record has the power to proceed brevi manu to punish contempts of its own authority and in these proceedings,

the contemner is precluded from taking a plea of defence. Certain English and Indian decisions are found quoted at page 108. These paragraphs

are being quoted again :

By our constitution,"" observed Wilmot J. in his underlivered judgment in Almon's case, ""the king is the fountain of every species of justice which is

administered in this Kingdom. The King is de jure to distribute justice to all his subjects and because he cannot do it himself to all persons he

delegates his powers to his Judges who have the custody and the guard of the King's oath and sit in the seat of the king concerning his justice.

The arraignment of the justice of the Judge is arraigning the King's justice; it is an impeachment of his wisdom and goodness in the choice of his

Judges and excites in the minds of the people a general dissatisfaction with all judicial determinations and indisposes their minds to obey them; and

whenever men's allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice and in my opinion

calls out for a more rapid and immediate redress than any other obstruction whatsoever, not for the sake of the Judges, as private individuals, but

because they are the channels by which the King's justice is conveyed to the people.

There is not a single case on record, except one to which reference will presently be made, where a person guilty of scandalising the Court

pleaded or attempted to prove that the libel was true. In In Re: Ram Mohan Lal Agarwala, . In the matter of Ram Mohan Lal, Agarwala an

attempt was made by the contemner to call evidence to prove his allegations but the Court refused to call the witnesses and held that there can be

no justification of contempt of Court. Even assuming that the writer of a manifesto believes all he states therein to be true, if anything in the

manifesto amounts to contempt of Court, the writer is not permitted to lead evidence to establish the truth of his allegation. In (1894) 1 Ch 347,

Coats v. Chadwick, Chitty J. observed in a contempt case as follows :

The plaintiffs' counsel not only admitted but boldly asserted and made it part of their argument that the circular was libellous and that they could

justify the libel and they referred to some of the evidence which apparently had been adduced for the purpose of sustaining the justification. But the

evidence and the argument founded on it are irrelevant on this motion.

Refernce to the above legal position has been made, as indicated in the very beginning to dispel a notion that a Judge against whom allegations

are made should not hear the matter and also to restate that a contemner has no right to justify in contempt proceedings what he has said.

A recent decision of the Supreme Court of India in suo motu contempt petition S.K. Sundaram, , is also being noticed. This was with regard to

the conduct of an Advocate, practising in Madras High Court. This decision takes note of the observations made by a Constitution Bench of the

Supreme Court in the case reported as Supreme Court Bar Association Vs. Union of India and Another, . What was quoted by the Supreme

Court is being quoted again :

The contempt of Court jurisdiction Is not exercised to protect the dignity of an individual Judge, but to protect the administration of justice from

being maligned.

In the above ease, the contemner was found guilty of having committed the eon-tempt of Court, He was sentenced to six months

imprisonment, However, taking into consideration all the facts and circumstances of the case, the sentence was suspended for a period of five

years with the following observations :

We have, therefore, not a speck of doubt in our mind that the impugned action of the contemner is a case of gross criminal contempt of Court. It is

a serious matter for this Court because vilification of the high personage of Chief Justice of India would undermine the majesty of the Court and

dignity of this institution. We, therefore, hold him guilty of criminal contempt and convict him thereunder. We sentence him to undergo

imprisonment for six months.

But then, we consider another aspect. The contemner said that he is a heart partient. Mr. Harish N. Salve, learned Solicitor General pleaded with

us that the said statement of the contemner may be considered as a ground in deciding how to inflict the punishment. We, therefore, order that the

sentence of imprisonment for six months will stand suspended for a period of one month from today. If the contemner would give an undertaking in

this Court, in the form of an affidavit, to the effect that he would not commit or even attempt to commit any act of criminal contempt, then the

sentence now imposed by us would remain suspended for a further period of five years. But if the contemner commits any act of criminal contempt

during the said period of five years, the suspension of the sentence will stand revoked and then he will have to undergo the sentence of

imprisonment for six months. Otherwise, the question of revival of the sentence would depend upon the order which this Court would pass on the

expiry of five years.

In the present case, as noticed above, the respondents have tendered an unqualified apology. Even though, I have expressed a prima facie

opinion that the publication in question falls within the definition of term 'crimirial contempt', but the matter is further required to be heard and

determined by a Division Bench or by such larger Bench as the Lord Chief Justice may decide in terms of the procedure indicated in the Contempt

of Courts Act, Registry would accordingly place the file before my Lord the Chief Justice for further orders In terms of the observations made at,

page 21 of this order.