Bombay High Court
Harish S/O Mahadeo Pimpalkhute And Anr. vs Bal Thackeray And Ors. on 7 February, 1997
Equivalent citations: (1997)99BOMLR455
Author: S.B. Mhase
Bench: S.B. Mhase
JUDGMENT A.A. Desai, J.
1. The newspapers referred to in these proceedings and which are represented by printers, publishers and Editors, and impleaded as respondents, reported that respondent No. 1 Shri Bal Thackeray on 21st October 1996 at a Dasera rally at Shivaji Park, Mumbai made a statement, which precisely contains that he (Shri Bal Thackeray) was reported by someone that a Judge demanded rupees thirty-five lakhs for delivering a judgment in his favour. The petitioners, therefore, prayed for action against respondent No. 1 and newspapers for committing contempt of Court.
2. Appearing for respondent No. 1 and 4, Shri Bobde, the learned Counsel, began to question the tenability of these proceedings. According to him High Court is a Court of Record and has inherent powers as recognised by Article 215 of the Constitution. These powers are not subjected to any control. However, in Criminal Contempt Petition No. 12/96, the petitioner has applied for consent as envisaged by Sub-section (1) of Section 15 of the Contempt of Courts Act, 1971 (hereinafter referred to as 'the Act'). The petitioner has also prayed for action under Section 12 of the Act. As such, for taking cognizance, the consent is imperative. In the absence thereof, the petitions are untenable. Other respondents except Nos. 9 to 12 have adopted the same line.
3. Section 15 of the Act, as recognised, has a laudable purpose. The consent of Advocate General for private person to approach this Court operates as filter to eliminate vexatious or frivolous litigations, which are calculated to harass the opponent or for political vendetta and then to save time of the Court. The petitioner in Criminal Contempt Petition No. 12/96, on 22.11.1996, applied for consent to the Advocate General. Shri Kukday, the learned Government Pleader, stated of having on 26.11.1996 received the same. Till concluding of hearing on 5.2.1997, the Advocate General did not take any decision. According to them this was due to pendency of these proceedings. We are thus deprived of the benefit of valuable opinion of the learned Advocate General on the matter involved herein. Advocate General Shri C.J. Sawant and Additional Advocate General Shri Apte have opted not to address this Court on the merit of the matter, but preferred to support Shri Bobde on the ground of tenability of the petitions for want of consent. At one stage, we posed a question, was it open for the Advocate General to the exception based on his omission? We did not get any satisfactory explanation. Be that as it may, we consider their submissions.
4. In sum substance, the contentions are that the Parliament in exercise of power under Article 245 of the Constitution in relation to Entry No. 14 of Third List of Schedule VII enacted the Act. This is, as per the Preamble, to define and limit the powers of certain Courts in punishing contempts of Courts and to regulate their procedure in relation thereto. Section 22 declares that the Act is in addition to and not in derogation of other laws relating to contempt. The submission is that the Act regulates the procedure through various provisions. This Court though possesses the powers under Article 215, the Act regulates exercise of the same. Hence any private person when approaches this Court for action for contempt, must carry with him consent as envisaged by Section 15(1) of the Act.
The learned Counsel and Advocate General placed reliance on the decisions in R.L. Kapur v. State of Tamil Nadu , Vinaya Chandra Misra v. Sachindra Kumar Sarkar 1974 Cri.L.J. 962, S.K. Sarkar v. Vinay Chandra Misra , Conscientious Group v. Mohammed Yunus and Ors. and P.N. Duda v. P. Shivshankar . With the assistance of the learned Counsel, we have examined the ratios laid down. The dictum as deduced from them does not suggest in any manner that the procedure prescribed by the Act controls the exercise of power under Article 215. Even otherwise, like Articles 14, 19 and 21, etc., the power under Article 215 has not been made subject to any law for the time being in force.
On the other hand, the decisions in Delhi Judicial Service Association v. State of Gujarat , Pritam Pal v. High Court of Madhya Pradesh and Arun Kumar v. Wasudeo Rao 1996 Mh. L.J. 491, have unequivocally affirmed that the procedure as laid down under the Act does not create any fetter on the exercise of power. In a decision in the case of Vinay Chandra Mishra , the Supreme Court took, cognizance of the act of contempt ex facie committed in the High Court at Allahabad though the procedure laid down under Section 14 of the Act has provided otherwise. Particularly in para 10, it is observed:
In the present case, although the contempt is in the face of the Court, the procedure adopted is not only not summary but has adequately safeguarded the contemner's interests. The contemner was issued a notice intimating him the specific allegations against him. He was given an opportunity to counter the allegations by filing his counter affidavit and additional counter/supplementary affidavit as per his request, and he has filed the same. He was also given an opportunity to file an affidavit of any other person that he chose or to produce any other material in his defence, which he has not done.
It is explicit that the exercise of power of Court of record cannot be circumvented even by the procedure laid down under the Act. What was emphasisd is that the procedure as adopted has necessarily to provide adequate safeguard to the interest of contemner. In the instant proceedings, to facilitate the contemner, we issued notice before admission, so that he can set up plea or repudiate impugned allegations. The contemner did not avail the opportunity as provided. We then admitted the matter and issued the Rule.
5. Shri Bobde then contended that suo motu action under Section 15 of the Act could be taken on any information or newspaper, but not on the basis of the instant petitions, which are filed in regular manner by private persons. And if the petitions are taken as a source of information for taking suo motu action, then this Court ought to have framed necessary charge.
The submission does not bear any merit. The Supreme Court in a decision in Delhi Judicial Service Association v. State of Gujarat , has observed that the powers of the Courts of record are of special jurisdiction and they can evolve their own procedure. Such procedure as subsequently laid down in Pritam Pal v. High Court of Madhya Pradesh , ought to be fair and reasonable. In other words, procedure of this Court should provide just and fair opportunity to the contemner or reasonable opportunity to defend effectively. Such opportunity also envisages that the person called must understand the allegations against him. The petitions with necessary enclosures including the newspapers containing alleged statement were supplied to respondents along with notice of the Court. More pertinently, the contemners/respondents have not expressed any prejudice or canvassed any grievance that they could not understand the charge involved in these proceedings to which they have been called upon to defend.
6. Respondent No. 1 Shri Thackeray in his reply denied that the impugned statement has reference to any Judge of the High Court, but he asserted:
This respondent's remarks were referring to a Judge working in a subordinate judiciary about whom it was reported to this respondent that he had demanded an amount of Rs. 35 lakhs for deciding a case in a particular way.
This respondent has not issued any corrigendum to that effect.
Submission of Shri Bobde is that even if the allegations as regards demand are admitted, they are against a Judge and not against a Court. And Judge is not analogous to Court. Allegations against a Judge do not constitute contempt of the Court. Our attention was invited to Section 16 of the Act to indicate that even a Judge or Magistrate could be liable for contempt of his own Court.
This submission is equally without merit. No doubt, a Judge himself or herself does not exclusively constitute the Court, but he is a Presiding Officer of the Court. The Supreme Court in Legal Aid Committee representing Undertrial Prisoners v. Union of India and Ors. (1994) 6 SCC 671, has held that the Judge is a constituent of the Court. As such, the Judge being a prominent component of the Court, the allegations against him, if they are of the character as stipulated under Section 2(c), certainly constitute criminal contempt.
7. Then Shri Bobde tried to urge that in the impugned statement, a Judge, Court of proceedings have not been named. None of them is identifiable. The impugned statement, therefore, does not constitute contempt. Support is solicited from the decision in Vishwanath v. E.S. Venkataramaih and Ors. , where the former Chief Justice of India made a general statement that the Judges accept the hospitability of lawyers for wining and dining.
The submission is equally untenable. Authority as cited does not render support to the propositions. Section 2(b) of the Act defines Civil Contempt being a wilful disobedience amongst others of a judgment decree of any other process of the Court. This definition envisages particular proceedings of the Court. However, Clause (c) of Section 2 of the Act, which defines Criminal Contempt, does not refer to any proceedings. Reference is to an act of a particular character which scandalises or tends to scandalise or lowers the authority of any Court. Hence, omitting to name a Judge or proceedings of Court in the impugned allegations does not make the act incomplete, if otherwise they constitute contempt. This Court in a decision in V.M. Kanade v. Madho Gadkari 1989 Mh. L.J. 1078, has dealt with similar situation where Judge was not named. We reproduce here the observations in para 12.
...To suggest that a particular Judge of the High Court does not give judgment on the basis of the merits of the case before him but decides the case being influenced by the charm of a particular lady advocate is nothing but to scandalise this Court. It should be noted that the contemner did not at least at the time of the publication of the article show enough courage to name the Judge or the lady advocate. This had the result of casting a cloud over practically every Judge of the High Court and every lady advocate practising in this Court. In law, scandalising a Judge of a particular Court amounts to scandalising that Court itself. It must also be noted that the newspaper in which the article was published is not meant for only lawyers; probably lawyers form a very small percentage of the readership of the said newspaper. It is read by the general public in whose minds the effect of the allegation made by the contemner can very well be imagined. The general members of the public must undoubtedly be wondering as to how the High Court can mete out justice when Judges of that Court are swayed by the charm of a lady advocate.
Shri Bobde tried to urge that by a particular reference the Judge was identifiable and in those allegations, Court was named (High Court). Ratio, therefore, has no application. By making a general statement, the contemner otherwise cannot take advantage to escape from the liability. On the contrary such statement is more serious and of devastating effect. It makes the people to speculate in their own way about integrity and honesty of Judges of every Court.
The allegations as admitted by the respondent No. 1 have definite relation with performance of judicial function by a Judge and demand of rupees thirty-five lakhs is alleged to be a consideration for a verdict favourable to the litigant. The allegations not only lower down the authority, but it is a definite and palpable act to scandalise the Court. They, therefore, constitute criminal contempt of the Court.
8. Shri Bobde then urged that respondent No. 1 is not liable for punishment in view of Section 13 of the Act as impugned allegations have not in any manner substantially interferred with the "due course of justice." Submission is that since the statement has no relation with any proceedings, it does not substantially interfere with the due course of justice. The learned Counsel, however, could not persuade us to hold that due course of justice as envisaged by Section 13 is confine to Court proceedings. Even otherwise, it is explicit from the legislative scheme of the Act. Section 2(c)(ii) referes to "to interfere with due process of any judicial proceedings", whereas Section 13 refers to "due course of justice". The due course of justice has a wider connotation, of which justice delivery system is one of the parts. Abiding faith and confidence of the people in the system is an unimpeachable character of the same. The respondent No. 1 has by the impugned statement impaired the faith of the people in that justice delivery system. In a decision in Ram Utar Shukla v. Arvind Shukla 1995 Supp. (2) SCC 130, the Supreme Court has examined this aspect in a great detail and observed:
...Oswald's classic book Contempt of Court states that "to speak generally contempt of Court may be said to be constituted by any conduct that tends to bring the authority or administration of law into disrespect or disregard or to interfere with or prejudice litigant or the witness duriny the litigation". C.J. Miller in his Contempt of Court, 2nd Reprint Edn., 1993, has stated at p.3 that English Law has long recognised that a criminal contempt may be committed by publishing matter or "indulging in conduct which creates a serious risk or prejudice to the full trial of particular criminal or civil proceedings, whether through an effect upon the parties, the witness, or the tribunal itself." The Law of Contempt by Anthony Arlidge and David Eady, 1982 Edn., commenting on Contempt of Court Act, 1981 at p. 151, stated that "any conduct calculated to interfere with the administration of justice was a contempt". Calculated means no more than tending to....
The Supreme Court has further observed:
In a recent judgment of this Court dated 14.11.1994, namely, Chandra Sashi v. Anil Kumar Verma a Bench comprising one of us, Kuldip Singh, J. as a member, learned Brother Hansaria, J. speaking for the Bench had held that:
The stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are therefore, required to be well taken care of to maintain sublimity of Court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned....
It was further observed:
...Law of contempt is only one of the many ways in which the due process of law is prevented from being perverted, hindered or thwarted to further the cause of justice. Due course of justice means not only any particular proceeding but broad stream of administration of justice. Therefore, due course of justice used in Section 2(c) or Section 13 of the Act are of wide import and are not limited to any particular judicial proceeding. Much more wider when this Court exercises suo motu power under Article 129 of the Constitution.... If the act complained of substantially interferes with or tends to interfere with the broad stream of administration of justice, it would be punishable under the Act. If the act complained of undermines the prestige of the Court or causes hindrance in the discharge of due course of justice of tends to obstruct the course of justice of interfere with due course of justice, it is sufficient that the conduct complained of constitutes contempt of court and liable to be dealt with in accordance with the Act....
We record that respondent No. 1 has substantially interfered with the due course of justice. He is, therefore, not entitled to protection under Section 13 of the Act. The respondent No. 1 is, therefore, liable to be punished.
9. Since more than a decade, the respondent No. 1 has been a prominent public figure. Certainly he has responsibility of highest degree. In para 10 of reply, he stated that "he admits that the high authority of the Courts necessarily depends upon the continued public faith that the judiciary is an honest and incorruptible institution." The respondent No. 1 re-asserted impugned statement in this para and further stated that "before this respondent could advise the particular litigant to take steps in accordance with Supreme Court judgment, he is being proceeded with for alleged contempt." The respondent No. 1 is one of the very enlightened members of the public. Obviously he has shown concern for the authority of the Court and continued faith of the public. Also he was conscious as regards the modalities settled for reporting the affair of which he got a knowledge. He could have resorted to that procedure. Instead he utilised public platform and public gathering for declaring the information which he claimed to possess. What is more serious is that the respondent No. 1 did not refrain himself and reiterated the impugned statement on 2.11.1996 at a Press Conference held at Akola.
According to Shri Bobde, the respondent No. 1 in his speech made a general reference to growing corruption. His speech continued for more than an hour. Impugned statement is practically a small reference. And it did not intend to scandalise. We repeatedly asked to the learned Counsel as to what was the context to make the impugned statement. We did not get any satisfactory explanation. Daily "Samna" dated 22.10.1996 extensively covered the speech of respondent No. 1. It reports that the judicial system is not free from corruption and respondent No. 1 with bitterness condemns it. And then came the impugned statement. Thereafter he expressed his resentment against the term "Public Outcry", And then he declared that he can raise even a bigger public outcry. Apparent it is to us that impugned statement was not a just casual reference in the speech, but was well thought of and equally well intended.
The respondent No. 1 was served with a notice before admission. He did not choose to set up any plea or offer any explanation. In reply after admission, he did not prefer to tender any apology for the impugned statement. We hold the respondent No. 1 guilty for committing contempt and he is liable to be punished.
10. Newspaper 'Samna' on 27.10.1996 wrote an article under caption 'Rok Thok' which included impugned statement. The author of this article is respondent No. 2 Sanjay Raut. Respondent No. 4 Shri Thackeray is Editor and respondent No. 6 Shri Subhash Desai is Printer and Publisher of the said newspaper. On 22.10.1996 it reported the impugned statement. S/Shri Kaptan, Bobde and Gilda, the learned Counsel respectively appearing for respondent Nos. 2, 4 and 6 made more or less a common submission that it was a fair criticism as envisaged by Section 5 of the Act and it was in a public good as well as in larger interest. In support, they placed reliance on a decision in R. v. Metropolitan Police Commissioner 1968 (2) All England Law Reports 319. We are unable to agree with the submission. The impugned statement as made is not a criticism of any judicial performance, but it is a definite accusation relating to conduct of a Judge in the context of judicial discharge. As discussed, the demand of rupees thirty-five lakhs was a bribe as a consideration to decide the course of justice on a particular line. The decision as cited, therefore, could not render any support to the submission.
11. The learned Counsel made an attempt to suggest that it being an innocent publication as envisaged by Section 3 of the Act, the contemners be exonerated. This submission is wholly untenable. Section 3 contemplates innocence in relation to proceedings, which are pending and the publication needs to have relation with the proceedings. The allegations, as discussed, have a relation with the conduct of a Judge in relation to judicial discharge and not in relation to pending proceedings.
One of the submissions of Shri Gilda is that judiciary being a democratic Institution, the criticism should not be viewed with sensitivity. He placed reliance on a decision reported in AIR 1978 SC 736 wherein it was suggested that Court should not be super-sensitive on such matters. We do not propose to be sensitive or super-sensitive. However, our being insensitive would provide a chance to responsible person to be unmindful of a sense of proportion. We have to check the growing tendency to make reckless statement against the Judiciary for self glorification or sometime for a thrill. We are also reminded of old saying that to be afraid of criticism is a crime, but to be unmindful of it is a sin. We, therefore, as democratic alligation to save democratic institution have to take congnizance of such ill tempered attack. The respondent Nos. 2, 4 and 6 by impugned publication have committed the contempt of Court. The respondent Nos. 2, 4 and 6 like respondent No. 1 have also not tendered apology. They are, therefore, liable to be punished.
12. Newspaper 'Lok Satta' firstly on 23.10.1996 and then on 3.11.1996 published the impugned statement. Respondent Nos. 3 and 5 are its Editor and Printer and Publisher. Shri Anand Parchure, the learned Counsel appearing for them, made a submission that their reporting was honest and truthul. Having regard to personality of respondent No. 1, they could not afford to ignore it. The Press has a duty to inform the public and they exercised their right of freedom of expression as envisaged by Article 19(1) of the Constitution.
Article 19, no doubt, confers right on the Press, but there is no right to scandalise. Even otherwise, that right under Article 19 is subject to provisions of law and the Contempt of Courts Act is one such legislation, which controls the right. This position has been explained in a decision . Hence, respondent Nos. 3 and 5 by publishing impugned statement have committed contempt of Court and we hold them guilty.
13. Times of India and Economic Times on 22.10.1996 published the impugned statement. Respondent Nos. 9, 11 and 12 also tendered unconditional apology. On behalf of respondent No. 10, though written apology could not be furnished, learned Counsel Shri Patil made a statement that on instructions from his client, he is tendering apology for respondent No. 10. Newspaper 'Lokmat' on 3.11.1996 published the impugned statement. Shri Daga, the learned Counsel appearing for its Editor in Criminal Contempt Petition No. 13 of 1996, tendered unconditional apology.
14. Except Samna, rest of the newspapers like Lok Satta, Times of India, Economic Times and Lokmat tendered apology. Having regard to various aspects, we do not propose to impose any punishment either of sentencing or fine, but we warn them for being unmindful of their responsibility towards democratic system.
While addressing during the course of hearing, authority of the Press was reiterated. Authority and functioning of the Press, which is precious, needs no restating, but exercise of authority is expected with a due sense of responsibility so as to make its function meaningful. In these matters, the newspapers performed their function in a highly irresponsible manner. We, therefore, propose to refer the cases of these newspapers to the Press Council of India for taking appropriate action.
15. Newspapers Asian Age represented by respondent Nos. 13 and 14 and Hindustan Times by respondent Nos. 15 and 16 in Criminal Contempt Petition No. 12/96, no doubt, published the news item in relation to speech of Shri Thackeray. However, they have not made any reference to contemptuous statement. Hence, proceedings against them are liable to be dropped.
16. We have also heard the learned Counsel on the question of sentence and they have addressed us on various aspects.
17. In the result we hold respondent No. 1 Shri Bal Thackeray, respondent No. 2 Shri Sanjay Raut, respondent No. 3 Shri Arun Tikekar, respondent No. 4 Shri Bal Thackeray, respondent No. 5 Shri Kirti D. Shukla, respondent No. 6 Shri Subhash Desai, respondent No. 9 Shri K.N. Amaria, respondent No. 10 Shri Gautam Adhikari, respondent No 11 Shri K.N. Amaria and respondent No. 12 Shri Jaideep Bose in Criminal Contempt Petition No. 12/96 and respondent No. 5 Shri Vijay Jawaharlal Darda in Criminal Contempt Petition No. 13/96 guilty for committing contempt of Court. The respondent Nos. 1, 3 and 5 in Criminal Contempt Petition No. 12/96 are respondent Nos. 1, 3 and 4 respectively in Criminal Contempt Petition No. 13/96.
We direct respondent No. 1 Shri Bal Thackeray to suffer sentence of simple imprisonment for a period of one week and to pay fine of rupees two thousand. In default, he shall suffer additional sentence of simple imprisonment for a period of two weeks.
Respondent No. 2 Shri Sanjay Raut is directed to suffer sentence of simple imprisonment for a period of one week and to pay fine of rupees two thousand. In default, he shall suffer additional sentence of simple imprisonment for a period of two weeks.
Respondent No. 4 Shri Bal Thackeray as an Editor of 'samna' shall suffer simple imprisonment for a period of one week and pay fine of rupees two thousand and in default, he shall suffer additional sentence of simple imprisonment for a period of two weeks.
Both the sentences of imprisonment of Shri Bal Thackeray (respondent Nos. 1 and 4) shall run concurrently.
The respondent No. 6 Shri Subhash Desai is also directed to suffer simple imprisonment for a period of one week and pay fine of rupees two thousand and in default, he shall suffer additional sentence of simple imprisonment for a period of two weeks.
The respondent Nos. 3 Shri Arun Tikekar, 5 Shri Kirti D. Shukla, 9. Shri K.N. Amaria, 10 Shri Gautam Adhikari, 11 Shri K.N. Amaria and 12 Shri Jaideep, Bose in Criminal Contempt Petition No. 12/96 and respondent No. 5 Shri Vijay Jawaharlal Darda in Criminal Contempt Petition No. 13/96 are hereby warned to. be more careful in future.
In relation to respondent Nos. 13 to 16 the proceedings are dropped.
We direct Registry to refer the matter of newspaper namely, Samna, Lok Satta, Nagpur, Lok-Mat, Nagpur, Times of India and Exonomic Times to Press Council of India for taking appropriate action.
Shri Bobde, the learned Counsel for respondent Nos. 1 and 4, Shri Kaptan, the learned Counsel for respondent No. 2, and Shri Gilda, the learned Counsel for respondent No. 6 prayed that the sentence be suspended as respondent Nos. 1, 2, 4 and 6 proposed to prefer an appeal. In view of this, sentence of Jail only is suspended for a period of two weeks.