Karnataka High Court
Venugopal vs Abdul Karim And Anr. on 7 December, 2001
Equivalent citations: ILR2002KAR2519, 2002(3)KARLJ541
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
ORDER K. Sreedhar Rao, J.
1. Both these cases are taken up together as bear same facts and law.
2. The first respondent has given a statement to the press which appeared in Asian Age Daily newspaper on 20-12-2001. The following is the text of the paper report.
"Karim Complains against Tarty for TADA Judge ... To Move Top Court Against Freeing Detenues. By our special correspondent:
Bangalore October 19: Abdul Karim, father of slain STF Officer M. Shakeel Ahmed who was murdered by the Veerappan gang, has sought a judicial inquiry into the thanks giving function allegedly organised by Counsel of the TADA accused, for Special Judge D. Krishnappa. Mr. Karim has filed a complaint with the Chief Justice of the High Court on the issue.
When contacted by the Asian Age, Mr. Karim claimed "Justice Krishnappa has flouted all norms by taking part in a thanks giving function organised by Counsel for the accused".
According to the complaint, the Judge had personally met the acquitted TADA accused after the pronouncement of judgment and expressed his happiness over their release. Justice Krishnappa had recently passed judgment acquitting 109 TADA detenues and sentencing 14 others to life in the Veerappan case.
Mr. Karim has alleged, in his complaint that the thanks giving function was held in the premises of the Court and that Counsel for the accused.
Venugopal and Subbakrishna, presented Justice Krishnappa with a sandalwood Ganesha. "The gift was in appreciation of the favourable judgment given for the TADA accused on September 29, earlier this year" the complaint claims. Mr. Karim said some Advocates of the Mysore Bar Association had brought the incident to his notice. Mr. Karim also said he would appeal to the Supreme Court against the judgment of Special TADA Judge in the Veerappan case. "My son laid down his life for the cause of the nation. The lenient judgment has come as a shock to me. I will file an appeal in the Supreme Court shortly", he told The Asian Age.
The appeal has to be filed within 30 days of announcement of the judgment "in spite of issuing a legal notice, the State has not yet reimbursed the cost of writ appeal filed earlier. A Supreme Court judgment stipulates that if a writ appeal against a State is allowed, the cost of the appeal has to be reimbursed to the plaintiff, Mr. Karim said.
He said he would dispose off the site awarded to the family in 1994 as relief for the murder of his son, to pay for the costs of the appeal".
3. The Trial Judge Sri D. Krishnappa being aggrieved by the remarks made against him in the press statement, submitted a request to the High Court through the Registrar General for initiating contempt action against the first respondent. Accordingly, the Registrar General after obtaining the sanction from the Advocate General has filed Cri. C.C.C. No. 53 of 2001.
4. One Sri Venugopal, Advocate appearing for the accused in the Trial Court has also filed a complaint for initiating action against the first respondent which pertains to Cri. C.C.C. No. 46 of 2001. Annexure-A, dated 18-10-2001 is the complaint submitted by the first respondent to the Chief Justice of the High Court of Karnataka wherein the similar allegations are made against the Trial Judge D. Krishnappa for attending a felicitation function organised by the lawyers pursuant to the disposal of the TADA cases and also said to have accepted gift of sandal-wood of Lord Ganesha. It is also alleged that the Judge had met the accused after disposal of the cases.
5. The Counsel for the complainant strenuously contended that the conduct of the first respondent in going to press and making derogatory remarks against the Judge amounts to criminal contempt and the allegations are per se baseless, therefore sought initiating action under the Contempt of Courts Act.
6. A careful reading of the text of the paper report does not per se impute any corrupt motive on the part of the Judge for delivering the judgment in the TADA cases. His conduct subsequent thereto in participating a felicitation function arranged by some of the members of the Bar at Mysore and accepting a memento of sandalwood Ganesha are the alleged improprieties.
7. The public servant under Rule 15 of the KCS (Conduct) Rules, 1966 is not entitled to have a function arranged in his honour nor entitled to participate in any felicitation function in relation to discharge of his official duties. The provisions of Rule 15 is extracted hereunder for convenient reference:
"15. Public demonstration in honour of Government servants.--No Government servant shall except with the previous sanction of the Government receive any complimentary or valedictory address or accept any testimonial or attend any meeting or entertaining held in his honour or in the honour of any Government servant:
Provided that nothing in this rule shall apply to--
(i) a farewell entertainment of a substantially private and informal character held in honour of Government servant or any other Government servant on the occasion of his retirement or transfer or any person who has recently quit the service of the Government; or
ii) the acceptance of simple and inexpensive entertainment arranged by public bodies or institutions.
Note.--Exercise of pressure or influence of any sort on any Government servant to induce him to subscribe toward any farewell entertainment even it is of a substantially private or informal character and the collection of subscription from Group C or Group D employees under any circumstances for the entertainment of Government servant not belonging to Group C or Group D is forbidden".
8. The provisions of the rule prohibit any Government servant from attending the functions of the nature excepting the one envisaged in the proviso. The allegation made against the first respondent in the complaint to the High Court per se indicates that the aforesaid function is not covered by the proviso. The allegation of holding a felicitation function and attendance by the Judge is stoutly denied. If there has been any such function as alleged definitely it amounts to impropriety amounting to misconduct. However, said allegation of misconduct against the Judge is a subject-matter of complaint filed by the first respondent before the High Court and there is no material before us regarding the stage or the result of the said complaint on the disciplinary side.
9. The criminal contempt is defined thus under Section 2(c) of the Contempt of Courts Act of 1971.
"(c) "Criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which--
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any Court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner".
10. The distinction between the offence of criminal contempt and the defamation is subtly and succinctly explained by the Supreme Court in Brahma Prakash Sharma and Ors. v. State of Uttar Pradesh, The relevant observations on the point of law are at paragraphs 8, 9, 10, 11 and 12 which reads thus:
"(8) It admits of no dispute that the summary jurisdiction exercised by superior Courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the Courts. It would be only repeating what has been said so often by various Judges that the object of contempt proceedings is not to afford protection to Judges personally from imputations to which they may be exposed as individuals; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the Court is lowered and the sense of confidence which people have in the administration of justice by it is weakened.
(9) There are indeed innumerable ways by which attempts can be made to hinder or obstruct the due administration of justice in Courts. One type of such interference is found in cases where there is an act or publication which 'amounts to scandalising the Court itself -- an expression which is familiar to English lawyers since the days of Lord Hardwicks vide In re Read and Huggonson, (1742)2 Atk 469: 26 ER 683. This scandalising might manifest itself in various ways, but in substance, it is an attack on individual Judges or the Court as a whole with or without reference to particular cases casting unwarranted and defamatory aspertions upon the character or ability of the Judges. Such conduct is punished as contempt for this reason that it tends to create distrust in the popular mind and impair confidence of people in the Courts which are of prime importance to the litigants in the protection of their rights and liberties.
(10) There are decisions of English Courts from early time where the Courts assumed jurisdiction in taking committal proceedings against persons who were guilty of publishing any scandalous matter in respect of the Court itself. In the year 1899, Lord Morris in delivering the judgment of the Judicial Committee in McLeod v. St. Aubin, 1899 AC 549 : 68 L.J. PC 137, observed that "Committals for contempt by scandalising the Court itself have become obsolete in this Country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them".
His Lordship said further:
"The power summarily to commit for contempt is considered necessary for the proper administration of justice. It is not to be used for the vindication of a Judge as a person. He must resort to action for libel or criminal information", The observation of Lord Morris that contempt proceedings for scandalising the Courts have become obsolete in England is not, strictly speaking, correct; for, in the very next year, such proceedings were taken in Reg v. Gray, (1900)2 QB 36 : 69 L.J. QB 502 . In that case, there was a scandalous attack of a rather atrocious type on Darling, J. who was sitting at that time in Birmingham Assizes and was trying a man named Wells who was indicted 'inter alia' for selling and publishing obscene literature. The Judge, in the course of the trial, gave a warning to the newspaper press that in reporting the proceedings of the Court, it was not proper for them to give publicity to indecent matters that were revealed during trial. Upon this, the defendant published an article in the Birmingham Daily Argus, under the heading "An Advocate of Decency", where Darling, J. was abused in scurrilous language. The case of Wells was then over but the Assizes were still sitting. There can be no doubt that the publication amounted to contempt of Court and such attack was calculated to interfere directly with proper administration of justice. Lord Russell in the course of his judgment, however, took care to observe that the summary jurisdiction by way of contempt proceedings in such cases where the Court itself was attacked, has to be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt, "Because" as his Lordship said "If it is not a case beyond reasonable doubt, the Court should and ought to leave the Attorney- General to proceed by criminal information".
In 1943, Lord Atkin while delivering the judgment of the Privy Council in Debi Prasad v. Emperor, AIR 1943 PC 202 : 70 Ind. App. 216 observed that cases of contempt which consist of scandalising the Court itself, are fortunately rare and require to be treated with much discretion. Proceedings for this species of contempt should be used sparingly and always with reference to the administration of justice.
"If a Judge is defamed in such a way as not to affect the administration of justice, he has the ordinary remedies for defamation if he should feel impelled to use them".
(11) It seems, therefore, that there are two primary considerations which should weigh with the Court when it is called upon to exercise the summary powers in cases of contempt committed by 'scandalising the Court itself. In the first place, the reflection on the conduct or character of a Judge in reference to the discharge of his judicial duties, would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses in respect of public acts done in the seat of justice. It is not by stiffing criticism that confidence in Courts can be created. "The path of criticism" said Lord Atkin -Ambard v. Attorney-General for Trinidad and Tobago, AIR 1936 PC 141; 1936 AC 322 (PC), at pp. 146 and 146(E):
"is a public way. The wrong-headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune".
(12) In the second place, when attacks or comments are made on a Judge or Judges, disparaging in character and derogatory to their dignity, care should be taken to distinguish between what is a libel on the Judge and what amounts really to contempt of Court. The fact that a statement is defamatory so far as the Judge is concerned does not necessarily make it a contempt. The distinction between a libel and a contempt was pointed out by a Committee of the Privy Council, to which a reference was made by the Secretary of the State in 1892 -- In the matter of a Special Reference from Bahama Islands, 1893 AC 138 : 62 L.J. PC 79.
A man in the Bahama Islands, in a letter published in a colonial newspaper criticised the Chief Justice of the Colony in an extremely ill-chosen language which was sarcastic and pungent. There was a veiled insinuation that he was an incompetent Judge and a shirker of work and the writer suggested in a way that it would be a providential thing if he were to die. A strong Board constituting of 11 members reported that the letter complained of, though it might have been made the subject of proceedings for libel, was not, in the circumstances, calculated to obstruct or interfere with the course of justice or the due administration of the law and therefore did not constitute a contempt of Court.
The same principle was reiterated by Lord Atkin in the case of Debi Prasad, referred to above. It was followed and approved of by the High Court of Australia in King v. Nicholls, 12 Com-W LR 280, and has been accepted as sound by this Court in Bathina Ramakrishna Reddy v. State of Madras, . The position therefore is that a defamatory attack on a Judge may be a libel so far as the Judge is concerned and it would be open to him to proceed against the libeller in a proper action if he so chooses. If, however, the publication of the disparaging statement is calculated to interfere with the due course of justice or proper administration of law by such Court, it can be punished summarily as contempt. One is a wrong done to the Judge personally while the other is a wrong done to the public. It 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. It is well-established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely, or tends in any way, to interfere with the proper administration of law. Mr. Mookerjea, J. -- In re Motilal Ghose, AIR 1918 Cal 988."
11. The free and fearless expression is one of the facets of the fundamental right of freedom of speech and a trait of democracy. The bona fide and constructive criticism of the actions of the men dealing in public affairs is a right acknowledged by law in a democratic polity. The judiciary being one of the State functionaries not only protects such a right but also acknowledges the same when it comes to the criticism of the conduct of the Judge or his judgments.
12. In Prospective Publications (Private) Limited and Anr. v. State of Maharashtra, , the summary of the valid tests laid down by the Supreme Court in several decisions has been culled out and restated in the following manner in para 17:
"17. 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 scandalising 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 because "justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men".
(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 defamatory 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 latter 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 Kukherjee, J. (as he then was) (Brahma. Prakash Sharma's case, supra) the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the mind 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".
13. The allegations and the imputations made against the Judge by the first respondent does not appear to fit in to any of the defined categories of criminal contempt. In the instant case imputation of improper conduct made against the Judge, cannot mean that it scandalises and lowers the authority of the Court nor has a tendency of interfering with the due course of judicial administration in any manner. The allegations refers to a specific individual conduct of the Judge and it does not appear to have a tendency of injurious effect on the minds of the public or of the judiciary itself which may lead to interfere with the administration of justice. If the allegations made are mala fide and without any basis individually the first respondent may expose himself for committing the offence of defamation and on a civil side for a tort of libel. The alleged allegations if they are made in good faith, perhaps the second respondent has a cover of protection under Exception II to Section 499 of the IPC. These aspects are however not germane for our consideration in this case.
14. Recourse to print and visual media for one's own free and fair expressions or criticism in exercise of the fundamental right is one view of the matter when anything printed and published in newspapers, the gullible public always takes such statement as true and correct. The name and the character of the Judge gets maligned in public opinion. The position of the Judge concerned is delicately hopeless and he has no platform to defend himself in public view. Even when he gets clean chit from the Competent Authority in the disciplinary proceedings however, before any such adjudication takes place, the Judge concerned would have been convicted in public opinion even before the commencement of any valid legal enquiry. The first respondent does not appear to be naive and illiterate and not capable of foreseeing the consequences of his impugned action. Equally so, the second respondent, the responsible newspaper would be aware of the evil consequences of such publication.
15. When the journalistic reporting pertains to the actions of men in public affairs where the allegations against such public officials are in a nebulous state, it is not that there should not be a reporting of such a news item but however, the tenor of the report should not be slanted having a tendency to evoke prejudice in the minds of the public against the public servant. After all, the first respondent had only made a complaint to the Chief Justice alleging improprieties on the' part of the Judge concerned. The complaint is still under consideration, may be on the disciplinary side. In such a situation, the second respondent should have been more cautious and responsible regarding the tenor of report in the matter of this nature. The fourth estate has the responsibility to refrain from the temptation of vulnerable reporting, which has a tendency of stigmatising an individual when the imputations or allegations are still is ad judicatory stage. In other words, any reporting so made should not bear the tenor or language which has a tendency to prejudice and create adverse public opinion. In the instant case, although there may not be a strict compliance of this moral and legal obligation on the part of second respondent, we trust and hope that henceforth the high traditions of journalistic ethics are maintained by the second respondent In view of the reasons and discussions made above, the complaints are dismissed.