1978 Supreme(SC) 111

SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI AND D.A. DESAI, JJ.
Rama Dayal Markarha, Appellant
Versus
State of M.P., Respondent.
Criminal Appeal No. 100 of 1975
Decided on  14-3-1978.
Advocates appeared
Appellant in person; I. N. Shroff, Advocate, for Respondent.

Headnote:(1) Contempt of Courts Act, 1971-S.19-High Court relying on certain passages for finding contemner guilty-Supreme Court in appeal has jurisdiction to look those passages about which notice was issued.

       Ordinarily, it is true that the Supreme Court while hearing an appeal against a conviction for contempt of Court would confine its attention to the material which has received consideration of the High Court while adjudging the contemner guilty. However, there would be no lack of jurisdiction to take into consideration the passages in respect of which notice for contempt was issued and served upon the contemner. [Para 5

       (2) Contempt of Courts Act, 1971-S.10-criticism against judgment of the trial Court-High Court entitled to consider the judgment of the appellate Court.

       The offending pamphlet was published after the appeal preferred against the judgment of Shri Thakur was allowed by the learned Additional Sessions Judge and the conviction and sentence of the accused were set aside. As the judgment of Shri Thakur was the focal point of attack by the contemner, it was imperative for the High Court to take into consideration the appellate judgment against the judgment under attack so as to satisfy itself whether the judgment was so manifestly incorrect or perverse as to merit a scurrilous attack on it. [Para 7

       (3) Contempt of Courts Act, 1971-S.5-Judge accused of pre-conceived notion or prior resolution-is not fair comment.

       To say that the Judge with a wayward bend of mind has wielded a wayward pen is nothing short of imputing a deliberate motivated approach on the part of the Judge which is other than judicial indicating lack of dispassionate analysis and judicial objectivity. Similarly, to say that the judgment proceeded in one direction but thereafter the judgment took a somersault because he had resolved to convict the accused in spite of there being no evidence would clearly insinuate that the issues were pre-judged by the Judge. There is no greater calumny or infamy for a Judge bound by the oath or duties of his office not to decide a matter on record placed before him judicially which imply dispassionately and objectively. Pre-judging an issue is the very antithesis of a judicial process. To accuse a Judge that he proceeded to reach a conclusion because of his pre-conceived notion or prior resolution is to accuse him of an entirely injudicious approach. The conclusion therefore, reached by the High Court that the criticism of the judgment made by the contemner was wholly unjustified, is unexceptional. [Para 8

       The Society at large is interested in the administration of public justice because in the words of Benjamin Cardozo, "the great tides and currents which engulf the rest of men do not turn aside in their course and pass the Judges by". Such permissible criticism would itself provide a sensible answer to sometimes ill-informed criticism of Judges as living in ivory towers. But then the criticism has to be fair and reasonable. Such a criticism may fairly assert that the judgment is incorrent or an error has been committed both with regard to law or established facts. It is one thing to say that a judgment on facts as disclosed is not in consonance with evidence or the law has not been correctly applied. Ordinarily, the judgment itself will be 'the subject-matter of criticism and not the Judge. But when it is said that the Judge had a pre-disposition to convict or deliberately took a turn in discussion of evidence because he had already resolved to convict the accused, or he has a wayward bend of mind, is attributing motives, lack of dispassionate and objective approach and analysis and pre-judging of the issues which would being administration of justice into ridicule it not infamy. When there is danger of grave mischief being done in the matter of administration of justice, the animadversion cannot be ignored and viewed with placid equanimity. If the criticism is likely to interfere with due administration of justice or undermine the confidence which the public rightly repose in the Courts of law as Courts of justice, the criticism would cease to be fair and reasonable criticism as contemplated by section 5 but would scandalise Courts and substantially interfere with administration of justice. [Para 13

       In this case the setting is in a small backward rural area in the State of Madhya Pradesh and which aspect has especially appealed to the High Court in adjudging the appellant guilty of contempt. Again, the contemner is a lawyer belonging to the fraternity of noble and liberal profession. A criticism by him would attract greater attention than by others because of his day-to-day concern with the administration of justice in that area and his belief about the Judge's judicial disposition would adversely affect a large number of persons. Therefore, when in such a background it is said that the Judge has a wayward bend of mind and wields a waywards pen and that he took a deliberate turn in the discussion of evidence because he had resolved to convict the accused would indicate that the Judge has no judicial disposition and that he pre-judges the issues and there cannot be a greater infamy and calumny apart from the Judge of the Court. People around would lose all confidence in him and in the ultimate analysis the administration of justice would considerably suffer, and therefore, would constitute contempt. [Para 14

       (4) Contempt of Courts Act 1971-S.3, Explanation-expression heard and finally decided' -import of.

       (5) Words and phrases-expression ‘heard and finally decided'-meaning of.

       Explanation appended to section 3 would clearly show that the proceeding either civil or criminal shall be deemed to continue to be pending until it is heard and finally decided, that is to say, in a case where an appeal or revision is competent, until the appeal or revision is heard and finally decided, or where no appeal or revision is preferred, until the period of limitation prescribed for such appeal or revision has expired. [Para 10

       (6) Contempt of Courts Act, 1971-S.10-nature of contempt of jurisdiction - mode of exercise of the jurisdiction - principles governing contempt cases.

       Contempt jurisdiction is a special and to some extent an unusual type of jurisdiction wherein the prosecutor and the Judge are combined in one. To some extent it trenches upon the fundamental right of free speech and expression and stifles criticism of a public officer concerned with administration of public justice in discharge of his public duty.

       Therefore, the contempt jurisdiction has to be sparingly exercised with utmost restraint and considerable circumspection. Undoubtedly, Judges and Courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court, vide Queen v Gray. No criticism of a judgment however vigorous, can amount to contempt of Court providing it keeps within the limits of reasonable courtesy and good faith. [Para 11

       The principles which govern the cases for contempt of Court are as follows -

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

       (ii) 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.

       (iii) 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 because "justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though out spoken comments of ordinary men."

       (iv) 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 defamatory attack on the Judge or whether it is calculated to interfere with the due course of jusitce or the proper administration of law by his Court. It is only in the latter case that it will be punishable as contempt.

       

       (v) Alternatively the test will be whether the wrong is done to the Judge personally or it is done to the public 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 actual 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. AIR 1974 SC 735, (900) 2 Q.B. 40, (1968) 2 Weekly Law Reports 1204; AIR 1936 PC 141, AIR 1971 SC 221 and AIR 1954 SC 10 relied on. [Para 12

       (7) Contempt of Courts Act, 1971-S.13-benefit-when not given.

       Conceding that Judges must suffer criticism willingly, it is not the question of their personal vilification but the effect it has on the administration of public justice which is the cornerstone of contempt action. The Judge vilified relevant to his judgment would always shudder at the idea of writing a judgment which cannot meet the high standard of the present contemner. In fact the vituperative language was the outcome of a defeated advocate which appeared to be a very serious matter to the High Court more so when concerned with a mofussil place where there are one or two Courts and a few lawyers, and the litigating public is mostly illiterate or poorly educated, and it is such a thing which could not be ignored or allowed to pass by. Such criticism is bound to substantially interfere with due course of justice because in the opinion of the High Court, with which we are in agreement, the pamphlet published by the Contemner was highly mischievous. Therefore, this is not a fit case for giving benefit of section 13 to the contemner. [Para 16

       (8) Contempt of Courts Act, 1971-S.10-sentence.

       We are mindful of the fact that the Judges must be feeling extremely inconvenient whenever the contemner must be appearing before them but we must not be oblivious to the fact that the path of justice is not strewn with roses and justice being not a cloistered virtue, it must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary man, more so, by lawyers who are directly involved in administration of justice. While, therefore, not exonerating the contemner, we think a taken punishment would serve the ends of justice because if the contemner while pursuing his object zealously is required to be kept to the path of rectitude, a token fine will also consciously remind the contemner that he is not a gentleman at large. We, therefore, modify the sentence of fine awarded by the High Court and impose a token fine of Re. 1 on the contemner, in default to suffer simple imprisonment for a week. [Para 17