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PETITIONER: SAMMBHU NATH JHA

       Vs.

RESPONDENT: KEDAR PRASAD SINHA & ORS.

DATE OF JUDGMENT24/01/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ SHELAT, J.M.

CITATION:  1972 AIR 1515            1972 SCR  (3) 183  1972 SCC  (1) 573  CITATOR INFO :  E&R        1978 SC 727  (41)

ACT: Contempt  of Court-Publication in Newspaper of  notification under  s. 3 of Commissions of Inquiry Act, 1952  instituting inquiry  against  erstwhile ministers of  Bihar  Government- Allegation in notification against one of the ministers that he  had  against advice of officials ordered  withdrawal  of prosecution  of  criminal case and on trial  court  refusing permission  to withdraw ordered filing of revision  petition in High Court and thereby interfered with course of justice- Revision  filed  in  High Court  by  accused  also-Revisions pending in High Court at time of publication of notification in  Newspaper-Such publication whether constitutes  contempt of Court-Section 3(1) of Commissions of Inquiry Act  whether makes it mandatory for Government to publish notification in official gazette.

HEADNOTE: The appellant who was a minister in the State Government  of Bihar  issued  to  the  press a  copy  of  the  notification published in the Bihar Gazette Extraordinary dated March 12, 1968  whereby an inquiry had been instituted, among  others, against   a  former  minister  of  the   State   Government. According  to allegation No. J-4 in the schedule annexed  to the  notification  the said minister had by  misuse  of  his official  position and power unnecessarily  interfered  with the  administration of justice in a serious case of  rioting and Murder.  It was alleged that he had, against the opinion of  the District Magistrate and the Law  Secretary,  ordered the withdrawal of the prosecution against two of the accused and thereafter when the Trial Court rejected the application for withdrawal he caused a revision petition to be filed  in the  High Court.  The Searchlight of Patna in its  issue  of March 14, 1948 published the copy of the notification issued to   it  by  the  appellant,  including  the   schedule   of allegations.  An application was filed on March 25, 1968  by the  two accused aforesaid in the High Court for  initiating contempt  of  Court  proceedings  against  several   persons including  the  appellant and the printer and  publisher  of Searchlight.   It was urged by the applicants that  revision petitions filed by them and by the State Government  against

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the  orders  of  the  Trial  Court  refusing  permission  to withdraw the case were pending in the High Court at the time of publication and since allegation No. J-4 in the  schedule to the notification was related to the subject matter of the said   revision   petitions  the   publication   constituted interference  with the Course of justice inasmuch as it  had prejudiced mankind against them. HELD : The Courts have power to take action against a person who  does an act or publishes a writing which is  calculated to  bring  a court or judge into contempt or  to  lower  his authority  or  to  obstruct the course  of  justice  or  due administration  of  law.  As intention of the  condemner  to cause  those consequences is not a necessary  ingredient  Of contempt of court and it is enough to show that his act  was calculated  to obstruct or interfere with the due course  of justice  and  administration of law, there  would  be  quite number  of  cases where the contempt alleged would be  of  a technical  nature.  In such cases, the court would  exercise circumspection  and  judicial  restraint in  the  matter  of taking action for contempt of court.  The 184 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. [189 E-G] Reg. v. Gray [1900] 2 Q.B. 36; E.M.S. Namboodripad v. T.  N. Nambiar,  [1970] S.C.C. 325; Re: P. C. Sen, [1969] 2  S.C.R. 649;  Debi Prasad Sharma and Ors. v. The King Emperor,  L.R. 70  I.A. at p. 224; Legal Remembrancer v. Matital Ghose  and Others, I.L.R. 41, Cal. 173, applied. Plain  reading of S. 3(i) of the Commissions of  Enquiry  of Act  makes  it manifest that the notification  appointing  a commission  of  inquiry must be published  in  the  official gazette.   It  is an imperative requirement  and  cannot  be dispensed with.  The commission of inquiry is appointed  for the purpose of making an inquiry into some matter of  public importance.  The schedule containing the various allegations in  the  present case was a part of the  notification  dated March  12,  1968  and specified definite  matter  of  public importance which were to be inquired into by the Commission. As  such  the publication of the schedule  in  the  official gazette  should  be  held  to  be  in  compliance  with  the statutory  requirement.   The object of  publication  in  an official  gazette  is  twofold : to give  publicity  to  the notification  and  further to provide  authenticity  to  the contents  of that notification in case some  dispute  arises with regard to the contents. [190 G-H] In  the  present  case no undue emphasis was  given  to  any portion  of  the notification as the whole  notification  as printed  in  the  Gazette was given  to  the  newspaper  for publication.   Further,  the subject matter of  the  inquiry before the Commission as set forth in allegation No. J-4 was whether  there  was any misuse of official position  on  the part of the Minister concerned when he directed against  the recommendation  of  the  Law  Secretary  and  the   District Magistrate,  the withdrawal of the prosecution  against  the two  accused in question.  The question for  decision  which however,  was  the subject of  criminal  revision  petitions pending  in  patna High Court was whether the order  of  the magistrate  dismissing  the, application for  withdrawal  of prosecution  was  contrary  to law.  The  two  matters  were distinct  and  separate and not identical.  It may  be  that some  of the matters which were connected with the  criminal revision  petitions  were  the subject  of  inquiry  by  the

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commission of inquiry, but that would not attract  liability for contempt of court. [191 C-D] Jagannath  Rao  v.  State  of  Orissa,  [1968]  S.C.R.  789; referred to. The judgment of the High Court must accordingly be set aside and  the rule issued against the appellant for contempt  of court must he discharged. [192 C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 30  of 1969. Appeal  by special leave from the judgment and  order  dated the  12th August, 1968 of the Patna High Court  in  Original Criminal Miscellaneous Petition No. 30 of 1968. Basudev Prasad Sinha and B. P. Jha, for the Appellant. 185 The Judgment of the Court was delivered by KhannaJ. This is an appeal by special leave by Sammbhu  Nath Jha  who along with two others has been found by  the  Patna High  Court to be guilty of contempt of court.  In  view  of the  fact  that  the contempt, in the opinion  of  the  High Court,  was of a technical nature, the contemners  were  let off with a warning. On  January 2, 1966 a report was lodged with the  police  by Lachho  Paswan  that when he and his brother  Dwarka  Paswan were  going to Jamui market, Kedar Prasad respondent  abused them.   Kedar Prasad also exhorted others to  assult  Dwarka Paswan.  An assault was then made upon Dwarka Paswan and  he was  surrounded.  Arjun Pandey thrust Saif in the  chest  of Dwarka  Paswan,  as a result of which he died on  the  spot. The  motive  for the assault was stated to  be  that  Lachho Paswan  and Dwarka Paswan had voted against Kedar Prasad  in the  election  to the office of Mukhia.  The police  on  the basis  of that report investigated the case and submitted  a charge  sheet for offences under sections 148 and  302  read with  section  149 I.P.C. against a number of  persons.   No charge  sheet was submitted against Kedar Prasad  and  Arjun Pandey.   During the course of commitment  proceedings,  the committing  magistrate ordered that Kedar Prasad  and  Arjun Pandey be summoned for May 15, 1966 as accused. Kedar  Prasad  and  Arjun Pandey  filed  revision  petitions against the order of the committing magistrate, but the same was  dismissed by the Additional Sessions Judge, Monghyr  is per order dated May 5, 1967.  It was held that Kedar  Prasad and Arjun Pandey had been rightly summoned. After the dismissal of the revision petition, an application was filed by the Assistant District Prosecutor on  September 18,  1967  in  the  Court  of  the  learned  magistrate  for withdrawal of the case against Kedar Prasad and Arjun Pandey oil the ground that it was inexpedient for State and  public policy to prosecute them.  After hearing the counsel for the complainant and others, the committing magistrate  dismissed the  said application oil October 6, 1967.  It was  observed that  the  application  for withdrawal  of  the  prosecution amounted to an abuse and improper interference in the normal course of justice. Two  revision petitions were filed against the  above  order dated  October  6, 1967. One of the revision  petitions  was filed  by the State of Bihar and the other was filed by  one Abani  Kumar  Mandal.  Both  the  revision  petitions   were admitted by the High Court on November 30, 1967. During the pendency of the above mentioned criminal revision petitions,  the Governor of Bihar as per notification  dated

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March -L864 SupCI/72 186 12,  1968  appointed a Commission of Inquiry  consisting  of Shri  T. L. Venkatarama Aiyer, retired judge of the  Supreme Court,  under section 3 of the Commissions of  Inquiry  Act, 1952  (Act 60 of 1952) to inquire into a number  of  charges against 14 persons who had earlier held the offices of Chief Minister  and ministers in the State of Bihar.  One  of  the persons  against whom inquiry was ordered was  Shri  Hasibur Rahman who had held the office of Minister during the period from  March 16, 1967 to January 28, 1968.   The  allegations which were the subject matter of the inquiry were set  forth in the schedule annexed to the notification.  Allegation No. J-4  which was the subject of inquiry against  Shri  Hasibur Rahman was asunder:               "Shri Kedar Prasad Sinha and Shri Arjun Pandey               were facing prosecution along with nine others               in a serious case of rioting with murder which               was  pending  before  the   Munsif-Magistrate,               Jamui.  They filed a revision petition  before               the Additional Sessions Judge, Monghyr against               their   prosecution,  which   was   dismissed.               Thereupon on 6th June, 1967 they presented  an               application  direct to the then  Minister  for               Law,  Shri Hasibur Rahman, who  directed  that               the  Law Secretary should examine  the  matter               and  report and in the meanwhile the  District               Magistrate  was requested to take two  months’               adjournment of the case and also send the case               diary with his report.               On 17th August, 1967, the District  Magistrate               sent  his report opposing withdrawal  cf.  the               case.   Even before the District  Magistrate’s               letter was diaries in the Law Department, Shri               Hasibur  Rahman called for the  file  directly               from the dealing assistant and ordered that  a               telegram  should  be  sent  to  the   District               Magistrate  to take further adjournment for  a               fortnight.  The   matter  was  then   examined               thoroughly   by  the  officers  of   the   Law               Department and in his note, dated 30th August,               1967,  the Law Secretary  recommended  against               withdrawal  of  the prosecution  pointing  out               that there was a prima facie case and  justice               demanded  that  it Should be finished  Out  in               Court.               Shri  Hasibur  Rahman,  however  ignored   the               advice  of the District Magistrate as welt  as               of  the  Law  Secretary and  ordered  on  10th               September,  1967  that  the  case  should   be               withdrawn.   A  petition for  withdrawal.  was               accordingly filed on 18th September, 1967, but               was  rejected by the trial  court.   Thereupon               Shri  Hasibur Rahman directed that a  revision               should be filed in the               187               High  Court against the refusal of  the  trial               court  to  allow withdrawal of  the  case.   A               revision was accordingly filed, which is still               pending before the High Court.               "Shri  Hasibur  RaHman thus by misuse  of  his               official  position  and  power   unnecessarily               interfered with the administration of  justice               in a serious case of rioting with murder."

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The   notification  relating  to  the  appointment  of   the Commission of Inquiry along with the schedule containing the different  allegations  was published in the  Bihar  Gazette Extraordinary  dated  March  12, 1968.   The  same  day  the appellant,  who was one of the ministers of Bihar, gave  for publication  to  the  press  a  copy  of  the  notification, including   the   schedule   of   allegations.    The   said notification  along  with the schedule  of  allegations  was published in the Searchlight of Patna in issues dated  March 13,  March  14  and March 15 of 1968.   Allegation  No.  J-4 relating  to the withdrawal of case regarding  Kedar  Prasad Sinha was published in the issue of Searchlight dated  March 14,  1968.  Application dated March 25, 1968 was  thereafter filed  by  Kedar  Prasad and  Arjun  Pandey  for  initiating contempt of court proceedings against 25 persons,  including the  State  of Bihar, the Chief, Minister and  Ministers  of Bihar,  the Chief Secretary of the Bihar Government as  well as  Shri  Subhash Chandra Sarkar, Editor and  Shri  Awadesh Kumar Tiwari, printer and publisher of the Searchlight.  The appellant   was  impleaded  as  respondent  No.  3  in   the application.    It  was  urged  that  the   publication   of allegation No. J-4 related to a matter which was the subject matter of criminal revision petitions in the High Court  and had the result of interfering with the course of justice and prejudicing the mankind against the two in applicants. The  learned judge who dealt with the application held  that no case for contempt of court had been proved against 22 out of  25  persons.  The appellant was, however,  found  to  be guilty of contempt of court because it was he who had handed over  the offending matter to the press for  publication  in the  newspaper. editor as also the printer and publisher  of the  Searchlight  too  were  found  guilty  because  of  the publication of the news item in the aforesaid paper. We have heard Mr. Basudev Prasad on behalf of the appellant. No  one has appeared on behalf Of. the  respondents.   After giving  the matter our consideration, we are of the  opinion that the present is not a fit case wherein action should be taken for contempt of court. L-L864 Sup.CI/72 188 The law relating to contempt of court is well-settled.   Any act done or writing published which is calculated to bring a court or judge into contempt or to lower his authority or to interfere  with  the  due course of justice  or  the  lawful process  of  the  courts is a contempt  of  court  [Reg.  v. Gray(1)].  The law of contempt as observed by this Court  in the case of E. M. S. Namboodripad v. T. N. Nambiar(2)  stems from  the right of the courts to punish by  imprisonment  or fines persons guilty of words or acts which either  obstruct or  tend  to obstruct the administration of  justice.   This right  is exercised in India by all courts when contempt  is committed  in  facie curaie and by the  superior  courts  on their own behalf or on behalf of courts subordinate to  them even  if  committed outside the courts.   Formerly,  it  was regarded as inherent in the powers of a Court of Record  and now by the Constitution of India, it is a part of the powers of  the Supreme Court and the High Courts.  There  are  many kinds of contempts.  The chief forms of contempt are  insult to judges, attacks upon them, comment on pending proceedings with  a  tendency to prejudice fair  trial,  obstruction  to officers  of courts, witnesses or the parties,  abusing  the process  of the court, breach of duty by officers  connected with  the court and scandalising the judges or  the  courts. The  last form occurs, generally speaking, when the  conduct of a person tends to bring the authority and  administration

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of  the law into disrespect or disregard.  In  this  conduct are  included all acts which bring the court into  disrepute or  disrespect  or  which offend its  dignity,  affront  its majesty or challenge its majority. The  matter  was also dealt with by this Court Re  :  P.  C. Sen(3) and it was observed :               "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.  It is incumbent upon  Courts               of justice to preserve their proceedings  from               being  misrepresented,  for  prejudicing   the               minds of the public against persons  concerned               as  parties  in  causes before  the  cause  is               finally  heard  has  pernicious  consequences.               Speeches   or  writings  misrepresenting   the               proceedings  of the Court or  prejudicing  the               public  for  or against a party  or  involving               reflections on parties to a proceeding amount               to  contempt.   To make a  speech  tending  to               influence  the  result  of  a  pending  trial,               whether civil or criminal is a grave contempt.               Comments on pending proceedings, if  emanating               from   the  parties  or  their  lawyers,   are               generally  a more serious contempt than  those               coming from independent sources.  The question               in all cases of comment (1) [1900] 2 Q.B 36.              (2) [1970] S.C.C. 325. (3)  [1969] 2 S.C.R. 649.                  189 .lm15 on  pending proceedings is not whether the publication  does interfere,  but whether it tends to interfere, with the  due course  of  justice.   The question is not so  much  of  the intention  of the contemner as whether it is  calculated  to interfere with the administration of justice." Reliance  in  the  above  cited case  was  placed  upon  the following observations of the Judicial Committee in the case of Debi Prasad Sharma and Ors. v. The King-Emperor(1). .lm15 ".  . . the test applied by the..... Board which  heard  the reference,  was whether the words complained of were in  the circumstances  calculated to obstruct or interfere with  the course of justice and the due administration of law." It  has also to be borne in mind, as observed in Re : P.  C. Sen(2),   that   ordinarily  a  court  will   not   initiate proceedings  for  commitment for contempt where there  is  a mere  technical contempt.  This Court referred in the  above context  to  tile observations of Jenkins,  C.J.,  in  Legal Remembrancer v. Matilal Ghose and Others(3) that proceedings for contempt should be initiated with utmost reserve and  no court  in  the  due  discharge of its  duty  can  afford  to disregard them. It would follow from the above that the courts have power to take action against a person who does ,in 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.    As intention  of the contemner to cause those  consequences  is not  a necessary ingredient of contempt of court and  it  is enough  to show that his act was calculated to  obstruct  or interfere with the due course of justice and  administration of  law. there would be quite a number of cases wherein  the contempt  alleged would be of a technical nature.   In  such

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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. Let  us  now examine the facts of the present  case  in  the light  or what has been stated above.  The gravamen  of  the charge against the appellant is that during the pendency  in the-  High  Court of the two  revision  petitions  mentioned earlier, he handed over to the representatives of the  press for publication in the newspapers the (1) R. 70 1.A. at p. 224.          (2) [969] 2 S.C.R. 649. (3)  I.L.R. 41 Cal. 173. 190 notification,  including the schedule of allegations,  which had  been  issued  under section 3  of  the  Commissions  of Inquiry  Act  The  learned judge in  holding  the  appellant guilty of contempt of court observed               "But  the mischief in this case was  committed               by publicizing the said allegations with  full               knowledge  that  the  two  criminal   revision               petitions  were pending in this court and  the               question   as   to  whether   the   withdrawal               petitions were bonafide or not was still to be               considered  by  this court.  I have  not  been               shown any statutory provision which lays  down               that  allegations of the nature  contained  in               the  offending matter must be printed  in  the               official gazette or in the public press." It would follow from the above that the decision of the High Court  was  based  upon the assumption  that  there  was  no statutory  provision which required that allegations of  the nature  contained in the offending matter should be  printed in the official gazette.  Such an assumption in our view was incorrect.  The material part of sub-section (I) of  section 3 of the Commissions of Inquiry Act reads :               The  appropriate Government may, if it  is  of               opinion it is necessary so to do, and shall if               a  resolution in this behalf is passed by  the               House  of the People or, as the case  may  be,               the  Legislative  Assembly of  the  State,  by               notification in the Official Gazette,  appoint               a  Commission  of Inquiry for the  purpose  of               making an inquiry into any definite matter  of               public   importance   and   performing    such               functions  and  within  Such time  as  may  be               specified   in  the  notification.   and   the               Commission so appointed shall make the inquiry               and perform the functions accordingly. Plain reading of the above subsection makes it manifest that the notification appointing a commission of inquiry must  be published  in  the official gazette.  It is  an,  imperative requirement and cannot be dispensed with.  The commission of inquiry  is appointed for the purpose of making  an  inquiry into  some  matter  of  public  importance.   The   schedule containing the various allegations in the present case was a part of the notification dated March 12, 1968 and  specified definite  matters  of  public importance which  were  to  be inquired  into by the Commission.  As such, the  publication of the schedule in the official gazette should be held to be in compliance with the statutory requirement.  The object of publication  in in official gazette is twofold :  to  give

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publicity   to   the   notification   further   to   provide authenticity to the contents of that notification case  some dispute arises with regard to the contents. 191 What  was given to the press for publication in the  present case  was  the notification issued under section  3  of  the Commissions  of  Inquiry  Act.  The present is  not  a  case wherein  only part of the notification or some  portions  of the allegations were given for publication to the press with a  view to give emphasis to any part of the allegation.   On the  contrary,  what was given to the press was  the  entire notification. The  subject matter of the inquiry before the Commission  as set  forth in allegation No. J-4 was whether there  was  any misuse  of  official position on the part  of  Shri  Hasibur Rahman  when he directed against the recommendation  of  the Law Secretary and the District Magistrate, the withdrawal of the prosecution against Kedar Prasad and Arjun Pandey.   The question  for  decision which, however, was the  subject  of criminal revision petitions pending in Patna High Court  was whether   the  order  of  the  magistrate   dismissing   the application  for withdrawal of prosecution was  contrary  to law.   The  two matters were distinct and separate  and  not identical.   It may be that some of the matters  which  were connected  with  the criminal revision  petitions  were  the subject  of inquiry by the commission of inquiry,  but  that would  not attract liability for contempt of court.  In  the case  of Jagannath Rao v. State of Orissa(1)  the  appellant had challenged a notification issued under section 3 of  the Commissions  of  Inquiry  Act  appointing  a  Commission  of Inquiry to inquire into certain allegations against  persons who had held the offices of Chief Ministers and ministers in Orissa.   An argument was advanced in that case that one  of the items of charges which were to be inquired into bay  the commission  was the subject matter of an appeal  pending  in the High Court.  Question arose in that context whether  the setting  up  of  the  commission of  inquiry  by  the  State Government  or  the  continuation  of  the  inquiry  by  the commission  would be tantamount to contempt of court.   This Court held that the above acts would not constitute contempt of court and observed:               It  was pointed out by this Court in Shri  Ram               Krishna   Dalmia   v.  Shri  Justice   S.   R.               Tendolkar(1) that the inquiry cannot be looked               upon  as  a  judicial inquiry  and  the  order               ultimately  passed cannot be enforced  proprio               vigore.  The inquiry and the investigation  by               the  Commission  do not  therefore  amount  to               usurpation  of the function of the  courts  of               law.  The scope of the trial by the Courts  of               law   and   the  Commission  of   Inquiry   is               altogether different.  In any case, it  cannot               be said that , the Commission of Inquiry would               be   liable  for  contempt  of  Court  if   it               proceeded to inquiry into matters referred  to               it by the (1) [1968] 3 S.C.R.      (2)[1959] S.C.R. 279. 5-L864SupC.I./72 192               Government   Notification.   In.appointing   a               Commission  of Inquiry under section 3 and  in               making   the  inquiry  contemplated   by   the               notification, the Commission is performing its               statutory  due. We have already held  that  in               the  appointing of the Commission  of  Inquiry

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             the,, Government was acting bona fide.  It is,               therefore, not possible to accept the argument               of  the appellants that the setting up of  the               Commission of Inquiry by the State  Government               or  tile  continuance of the  inquiry  by  the               Commission so constituted would be  tantamount               to contempt of Court." In  our view the judgment of the High Court cannot  be  sus- tained.   We,  therefore, accept the appeal, set  aside  the judgment of the High Court and discharge the rule which  was issued against the appellant for contempt of court. G.C.                                    Appeal allowed. 193