P L D 1962 Supreme Court 457 (PLP)

HAMOODUR RAHMAN, J.‑

This appeal, by special leave, is from the judgment and order of a learned Single Judge of the High Court of West Pakistan, Lahore, finding the appellants guilty of contempt of Court under section 3 of the Contempt of Courts Act, 1926, and sentencing each one of them to a fine of Rs. 1,000 or a month's simple imprisonment in default. The proceeding for contempt was initiated on the basis of a petition filed by the respondent No. 2 herein under section 2 of the Contempt of Courts Act, 1926, in respect of an article published in a daily newspaper, called "The Kohistan", on the 9th of October 1958, under the caption: The said respondent, which is a private limited Company carrying on inter alia, the business of cross‑word puzzles popularly known as Shama Moimmas, complained through its Manager and Resident Director, Muhammad Amin Sharaqpuri, that the publication in question was a deliberate mis‑reporting of a criminal case under section 107/151 of the Criminal Procedure Code started by the said Muhammad Amin Sharaqpuri against one Mahmud Hussain in the Court of a Magistrate at Lahore, which was still pending on the date the publication appeared in the said newspaper ; that it constituted a mischievous attempt on the part of the appellants to interrupt the course of justice by disturbing the calm atmosphere essential for judicial deter mination of disputes by a Court of law, and that it had been made maliciously in order to wreak vengeance upon the said respondent for discontinuing the publication of its advertisements in the said newspaper. The appellants, who are the Staff Reporter, Printer and Publisher, Managing Editor and Resident Editor respectively of the said newspaper, were duly served with notices to show cause as to why they should not be committed for contempt of Court for the aforesaid publication. The record of the High Court discloses that they entered appearance through counsel and inspected the records but filed no petition of objection or counter‑affidavit controverting any of the facts alleged in the petition filed by the said respondent. But at the hearing of the matter they, as it appears from the judgment of the High Court, took up the position that whatever had been published in the said offending article was true and did not amount to any kind of contempt, as no details of the names of the parties, between whom the alleged litigations were pending, or the names of the Courts, before which they were pending, had been published. In any event, it was contended that since the comments in the said article were based on the observations of another learned Judge of the High Court of West Pakistan in the case of Zafar Niazi v. Riazuddin (P L D 1958 Lah, 738), they were fair comments on a matter of public importance. The High Court, however, took the view that the offending article and particularly three passages therein, translations of which have been set out in extenso in the judgment of the High Court, were clearly such as were likely to produce the effect in the minds of reasonable members of the general public that the Court before which the litigation was pending was not acting with judicial impartiality and that the respondent No. 2 herein was, by no means, conducting the said Moimmas in an honest manner. The aforesaid offending passages were, accordingly, held to be calculated to prejudice the public against the respon dent during the pendency of the litigations and thus to amount to a clear interference with the course of justice. The appellants now seek to challenge the correctness of the above finding of the High Court upon the following grounds :‑ (1) that the offending article read as a whole was a just and fair comment on the evils of the Moimma business in a general form and was not directed exclusively against the respondent No. 2 herein or the litigations pending against it ; (2) that the references to pending litigations were only incidental and could not possibly affect the merits of any specific pending case ; (3) that in any event, the reproduction of the contents of a petition filed in the course of the compromise proceeding before the Magistrate did not amount to a prejudicial comment on the merits of the case, particularly, since the parties con cerned and the Court, in which the petition was filed, had not been named in the article ; (4) that the conviction of the appellants was based on no evidence at all and was contrary to law, as they were not even questioned as to their alleged guilt nor allowed any opportunity to cross‑examine the complainant ; (5) that their admission of the publication of the article could not be treated as a confession and the conviction could not be based on it alone ; and (6) that, in any event, in the absence of any finding that there had been any substantial interference with the course of justice they should not have been convicted. We have carefully perused the offending article as a whole and, in our view, reading it even liberally it is not possible for us to agree that the article is confined merely to making fair comments on a question of public importance. Starting from its bold heading and caption it clearly imputes the basest possible motives to the organizers of such cross‑word puzzles. It could possibly have created no other effect on the minds of any of the reasonable readers of the said article. The contention that the article had fairly and correctly reproduced the contents of a petition which had been filed in the Court of the Magistrate on the 23rd of October 1958, is also not substantiated by the record. We have perused the original of the said petition which nowhere states that the party filing the petition wanted a decision from the Court in its capacity as a Magistrate and that he was not prepared to compromise the matter on the basis of the advice rendered by the Magistrate in his capacity as a public citizen, in his private Chambers. The embellishments, with which the incident of the compromise in the Court of the Magistrate has been presented in the offending passage, could not but have created the impression in the minds of its readers that the Magistrate concerned was going out of his way to help the organizers of the puzzle and to force a compromise on the other party. The contents of the article also furnish inherent evidence of the fact that the persons responsible for publishing it well knew, that the litigations were pending against the respondent No. 2 herein and if the article read reasonably and as a whole was calculated or had the tendency to prejudice mankind against one or other of the parties involved in the proceedings, it was enough to amount to an interference with the course of justice, for, the question in these cases is not as to whether the publication has, in fact, interfered or not or as to what was the intention of the author and or publisher, but whether it has the tendency to produce such prejudicial effect. The principle upon which this type of contempt is punished is to keep the streams of justice unsullied so that parties against whom litigations are pending in Courts of law should get a fair trial from the Courts and not be subjected in advance by a "trial by newspapers." Fair and impartial reports of proceedings at the hearing of a case or of any interlocutory proceeding therein or even the announcement of the result of such a hearing or interlocutory proceeding are, no doubt, permissible, if they are unaccompanied by comments, but any publication which has, or is likely to have, the tendency to pervert the course of justice by attempting to excite through the medium of newspapers prejudice against the parties or their litigations while they are pending, constitutes a contempt of Court, if it is shown that the persons responsible for such publication made them with the knowledge of the pending proceeding. The intention of the persons responsible for the publication is wholly irrelevant in such cases, for, what the Courts are concerned with ascertaining is as to what effect the publication, read fairly and as a whole, is likely to produce in the minds of reasonable readers. It is no doubt true that the Courts in exercising this extraordinary jurisdiction will not be unduly touchy or sensitive to punish even technical or trifling interferences. But it must be clearly understood that whenever it appears to a Court probable that the offending publication will substantially interfere with a fair trial, it becomes its duty to protect litigants resorting to Courts from being prejudiced in the trial of their cases by anything which savours of a trial by newspapers instead of by the legal Tribunals of the country. It is a misconception to think that publications of briefs, pleadings or petitions even without comments can, in no circumstances, amount to a contempt. Such publications, if one‑sided, may well have the undesirable effect of prejudicing the party whose version is not also placed before the public. From this point of view we have no quarrel with the observa tions of Harries, C. J., in the Full Bench case of In re Subrahmanyan, Editor Tribune and others (A I R 1943 Lah. 329) that "before a Court will take notice of such a publication the Court must be satisfied that the matter published tended substantially to interfere with the due course of justice or was calculated substantially to create prejudice in the public mind. The Court will not take action where the offending matter amounts to what is sometimes referred to as a technical contempt." In the present case, however, the offending article clearly went beyond the limits of any such technical contempt, for, it confined itself not merely to comments on the evils of cross‑word puzzles but went further by vilifying the above‑named respondent and also imputing lack of judicial impartiality to the Magistrate before whom the case was pending and thereby scandalizing him. The tendency in the present case was of a grave and substantial character and not merely of a technical nature. The fact that the names of the parties concerned in the pending litigations or of the Court before which the said litigations were pending had not been specifically mentioned in the offending article is of no consequence, for, any one knowing or taking the trouble to find out as to what litigations concerning cross‑word puzzles were pending in the Courts in the City of Lahore could have had no difficulty in identifying the parties concerned. The contention that the conviction is based on no evidence at all is without any substance; for, once the publication of an article is admitted the Court is concerned with ascertaining the effect that the article is likely to produce, and if upon a fair reading of the article the Court comes to the conclusion that the article could have such pernicious tendency, it can legally convict upon its own reading of the article, for, as already stated, it is not necessary in the case of a contempt of Court to, ascertain in each and every cause as to whether the publication has, in fact, interfered with the course of justice by taking evidence upon the matter. The suggestion, furthermore, that the contempt proceedings were in the nature of criminal proceedings and, therefore, the procedure adopted for criminal trials under the Code of Criminal Procedure must also be observed in such proceedings appears to us also to be misconceived. The offence of contempt of Court is by its nature purely sui generis. It is a power given to superior Courts to punish summarily any attempt to interfere with the administration of justice, upon the principle that persons who have duties to discharge in a Court of justice should be protected and shielded by the law in order that they may safely resort to Courts of justice. The nature of a contempt of Court proceeding was dealt with in the case of The State v. Moulana Abdul Rashid Tarkabagish (P L D 1959 Dacca 252) by the Dacca High Court and it was there pointed. out that contempt of Court proceedings "were sui generis in nature partaking of some of the elements of both civil and criminal proceedings but really constituting neither, that there was no fixed formula for contempt proceedings and that technical accuracies were not required, nor were we bound by the provisions of the Code of Criminal Procedure or by the technicalities of ordinary criminal proceedings ; but, nevertheless being Courts of justice, we would normally follow the fundamental rules for the ascertainment of the truth by giving the fullest opportunity to the person accused of defending himself and of putting forward his case with as much, if not, more fairness than we would in an ordinary trial before us." This view also appears to be supported by Mr. Oswald in his book on Contempt of Court, 3rd Edition page 17, as also by some observations of Woodroffe, J. of the Calcutta High Court in the case of Tarit Kanti Biswas, Printer and Publisher of Amrita Bazar Patrika and others (21 C W N 1161). Reliance was also sought to be placed on the decision in the case of In re Vallabhdas Jairam, Khimji Jairam and Bhanji Jairam Insolvents ((1903) 27 Bom. 394) for the proposition that any proceeding, if it results in any imprisonment, amounts to a criminal case and must, therefore, be tried like any other criminal case by framing a charge and coming to a finding upon the evidence. This was a case which dealt with a conviction under section 50 of the Indian Insolvency Act and has nothing to do with contempt of Court proceedings. This decision, however, appears to be based upon the decision of the Privy Council in the case of In re Pollard ((1868) L R 2 P C 106). That was a peculiar case in which a counsel had been convicted for contempt by the Supreme Court of Hong Kong for refusing to tender an apology to the Court. He was not only not given any notice to show cause but the Court concerned did not even condescend to inform him as to what he should apologize for, although the counsel concerned repeatedly made respectful attempts to ascertain as to what offence he had committed. He was sternly asked to sit down and hold his tongue and promptly committed for contempt. In this case the Privy Council did not even deliver a judgment but merely made a brief report recom mending that the conviction should be set aside wherein it was observed that "no person should be punished for contempt of Court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it to be given to him." This does not, in our opinion, lay down the wide proposition that in all contempt proceedings the procedure prescribed for an ordinary criminal trial must be followed. That observation when read in the light of the facts of the case before the Privy Council merely, in our view, asserts the general rule of audi alteram partem and no more. The present case, however, is clearly distinguishable, for, a show‑cause notice was duly served on the appellants and with this a copy of the petition of complaint was also supplied. The appellants applied for and were given permission to inspect the record and appeared through counsel. Thus the specific charge was clearly made known to them and they were given ample opportunity to answer the same. They, nevertheless, chose to admit the publication and to justify it by claiming that whatever was contained therein was true and a fair comment of proceedings pending in a Court of a Magistrate. They cannot, therefore, now be heard to complain that they were given no opportunity of meeting the allegations made against them. The next contention advanced on behalf of the appellants is that the High Court has erred in making each of the appellants equally liable for the publication, although the Printer and Publisher and those on the managerial side, such as the Resident Manager, had clearly no direct concern with the publication. This argument is, in our view, equally devoid of substance, for, in the case of newspapers the Editor, the Manager, the Printer, the Publisher as also the Staff Reporter, who is the actual author, I are legally responsible in the fullest measure for the publications made therein. It was clearly the duty of the Editors and the Publisher to see that whatever is published in their newspaper is a true and authentic report of proceedings in a Court of law and is not likely to either scandalize the officer presiding over the Court or prejudice parties to litigations pending before it. Lastly it is urged that since the complaint was made by a private petitioner some two months after the publication of the offending article, the punishment imposed upon the appellants by the Court should not have been so excessive. This Court does not, as a rule, interfere with a legal sentence imposed by a competent Court and in the present case we are satisfied that the sentence is, by no means, severe. It appears that the respondent No. 2 herein did not move the petition under section 2 of the Contempt of Courts Act until after the appellants had failed to make amends by publishing a contradiction in their aforesaid newspaper as demanded by him. This explains the delay of two months and makes it abundantly clear that the) appellants were in no mind to make any amends whatsoever Such conduct on their part was, if anything, an aggravation of, the offence and the appellants cannot now be heard to complain that the punishment imposed upon them is excessive. For the reasons given above this appeal is dismissed. A.H. Appeal dismissed.