Navadgi, J.
1. In this proceeding initiated and commenced against B.H. Ravindra Pai and Abdur Rahim Ahmed, arraigned as A-1 and A-2 respectively, as a result of the Reference made by the District Judge, Dakshina Kannada, Mangalore, under Section 15(2) of the Contempt of Courts Act, 1971 ('the Act' for short), a charge, was framed against B.H. Ravindra Pai (A-1) and Abdur Rahim Ahmed (A-2), hereinafter referred to as A-1 and A-2 respectively, for having committed the offence of criminal contempt within the meaning of Section 2(c) of the Act. Both A-1 and A-2 pleaded not guilty to the offence charged and stated that they had defence to make.
2. The Complainant, to establish the charge, has not adduced any oral evidence, but he has produced documentary evidence admitted in evidence and marked as Exs.P-1 to P-4 with the consent of A-1 and A-2.
3. After the charge was framed and the plea was recorded and after the Complainant closed his side, A-1 filed his affidavit while A-2 submitted that his affidavit filed on 18-10-1985 may be treated as his evidence.
4. By the time the case reached the stage of examining A-1 and A-2 under Section 313 of the Code of Criminal Procedure ('the Code' for short), A-2 passed away. Submission made in that behalf was recorded and the proceeding in so far as it related to A-2 was ordered as having stood abated. Hence, A-1 alone was examined under Section 313 of the Code. A-1 denied the offence alleged against him and filed his written statement with the Issue of 'Udayavani' dated April 22, 1985, a Kannada Daily, published from Mangalore.
5. We have examined the documentary evidence produced by the Complainant, the affidavits of A-1 and A-2 and the written statement of A-1. We have perused the record. We have heard the learned Additional State Public Prosecutor for the Complainant, and Sri M.S. Subbarayappa, the learned Counsel representing A-1.
6. Though A-2 died during the pendency of the proceeding and the proceeding in so far as it relates to him has abated, to avoid any possible confusion and to ensure accuracy of the facts of the matter, we will refer to the charge levelled against A-2, the evidence let in in support of the charge and the defence of A-2. For the sake of convenience, we will refer to Abdur Rahim Ahmed, Arraigned as A-2, as A-2.
7. The facts leading to the Reference, on the basis of which this Court assumed jurisdiction and Initiated and commenced action against A-1 and A-2 broadly but briefly stated, are these:
One Sulochana, wife of Kogga Bhandarkar, a resident of Ashoknagar in Mangalore City, had instituted a suit against A-1 seeking a decree for the recovery of a sum of Rs. 17,000/- stated to have been borrowed by A-1 from her on 1-1-1976. Under the terms and conditions of the transaction, A-1 was required to return the sum borrowed by 1-1-1978 with interest at the rate of 15 per cent per annum. Sulochana filed the suit in O.S. No. 175 of 1978 to recover the same with interest and costs, in the Court of the Principal Civil Judge, Mangalore, since A-1 did not return the money by the stipulated date with Interest. The claim was contested by A-1, but unsuccessfully in the Trial Court. The suit was decreed on 31-1-1981. A-1 brought the matter in appeal to this Court in Regular First Appeal No. 71/1981.
A Division Bench of this Court heard the appeal and dismissed the same by the Judgment and Order dated June 23, 1981. A-1 made in vain to take the matter to the Supreme Court.
After the decree attained the stage of finality, Sulochana sued A-1 in Execution to realise the decretal dues.
It was thereafter, A-1 filed a suit in O.S. No. 103/ 1984 in the Court of the Munsiff, Mangalore, seeking a declaratory decree for declaration that the Judgment and Decree passed by this Court in Regular First Appeal No. 71/1981 affirming the Judgment and Decree made by the trial Court in O.S. No. 175/1978 was void ab initio being obtaining practising wanton fraud, committing Illegality and by misrepresentations.
O.S. No. 103/1984, It appears and there Is no dispute about It, was made over to the file of one Jayaram Hegde, who was presiding over the Court at the material time as I Additional Munsiff, for disposal in accordance with law.
In the suit, A-1 made a written motion by means of an Interlocutory Application, numbered as I.A-1, under the provisions of Order 39 Rules 1 and 2 of the Code of Civil Procedure ('the C.P.C.' for short), with a prayer to grant an order of temporary injunction against Sulochana, restraining her from executing the decree in O.S. No. 175/1978 against him. Jayaram Hegde, as I Additional Munsiff, heard and dismissed the written motion by the order dated 17-4-1984, awarding a cost of Rs. 1,000/-. It may be mentioned that in addition to Sulochana impleaded as defendant No. 1, A-1 had impleaded her daughter Sukanya, a married woman, working at the relevant time in a Branch of the Syndicate Bank at Mangalore, and staying with her husband, as defendant No. 2 in the suit.
A-1, feeling dissatisfied by the order dismissing his Interlocutory Application with costs, preferred Miscellaneous Appeal in M.A. No. 21/1984 to the Court of the Civil Judge, Mangalore. The learned Civil Judge heard and dismissed the appeal with costs. A-1 challenged the correctness and legality of the order made by the. I Additional Munsiff, affirmed and maintained in the Miscellaneous Appeal, by instituting a Civil Revision Petition in this Court, but unsuccessfully.
It was thereafter A-1 engaging A-2, filed a verified petition under Section 24 read with Section 151 of the C.P.C. on 16-1-1985 in the Court of the District Judge, Mangalore, with a prayer to transfer O.S. No. 103/1984 from the file of Jayaram Hegde, the I Additional Munsiff, to any other Court of competent jurisdiction or to withdraw the suit to his file for trial and disposal. Along with the Transfer Petition, registered in the Court of the District Judge as Miscellaneous Case No. 1/1985, he filed an Interlocutory Application, numbered as I.A-II under Section 151 of the C.P.C. supported by the Memorandum of Facts of A-2 with a prayer to stay all further proceedings in O.S. No. 103/1984 on the file of the 1 Additional Munsiff till the disposal of the Miscellaneous Case No. 1/1985.
The District Judge, after registering the Transfer Petition and after hearing, directed notice of I.A-II to Sulochana and Sukanya - defendants Nos. 1 and 2 respectively in the suit, impleaded as Respondents Nos. 1 and 2 respectively in the Transfer Petition, making the same returnable with counter by 17-1-1985.
In the Transfer Petition, A-1 made very many averments, assertions and statements. In the Declaration, he declared that all the facts stated in the Transfer Petition were true and correct to the best of his knowledge and information.
The material averments in the Transfer Petition, which are the subject-matter of the charge framed against A-1, appear in Paragraphs Nos. 9, 10 and 11 of it. They are extracted hereinbelow:
'9. In the above suit for declaration, to the petitioner's dismay and utter disappointment, from the ways of the said Additional Munsiff, it has become obvious that he has been under deleterious influence of the aforesaid clique of lawyers, who have befriended him. They have been meeting him frequently at secret rendezvous in drinking parties and revelries. The petitioner reliably learns and verily believes that the respondents who are women of easy virtue residing in the neighbourhood of the said Munsiff's quarters appear in terms of familiarity with him, on account of their introduction by the Jurisdictional police officer who is it is learnt Additional Munsiff's class mate and chum. They appear to be birds of same feather. The said S.I. is a frequent visitor to his quarters, and virtually under his guidance in regard to the criminal complaint made by the petitioner, which has a bearing on the declaratory suit.
10. The I.A. No. I filed by the petitioner in O.S.103/1984 for interim injunction, in a suit for declaration and consequential perpetual injunction, to restrain execution of the impugned decree in O.S.175/1978, which is challengeable in law on grounds of fraud and perjury, was dismissed by the said Munsiff with contempt as it were to please the respondents, awarding fabulous compensatory cost of Rs. 1,000/- (Rupees one thousand) which is unheard of in the judicial history of our land when the main suit is still kept alive making it infructuous defeating the very object of the suit. The petitioner knows and verily believes that the Munsiff did it in gross misuse of his power and in adherence to corruption. Apparently at the instance of the said Munsiff, his class mate the Jurisdictional P.S.I. one Ramachandra Shastri has given a highly belated endorsement in the nature of criminal intimidation in regard to petitioners complaint dated 10-3-1984 in gross misuse of his power, warning the petitioner to stop pursuing his legal remedy for justice in the above suit a glaring example of illegality on the part of a Police Officer.
11. The Additional Munsiff aforesaid is known to go out of the way coaxing people to file frivolous suits, through his lawyer friends. This attitude of his has become the talk of the town. Recently, he appears to have instigated another police officer, a close friend of his, attached to Kankanady Police Station, under Departmental proceedings for misdemeanour to file a suit in his Court, assuring him that he will stop the proceedings. He did it wanton by trespassing on disciplinary jurisdiction of Police Department in respect of their subordinate official. It is learnt that even the drafting was done by his dictation. He has thus totally forfeited the confidence and trust of the litigant public. An enquiry in the matter will reveal his intrinsic perversity, and illicit inclination of mind, which has shaken the confidence of the petitioner in his ever getting justice at his hands in his suit O.S.103/1984 on his file. The I.A. filed in it by the petitioner, to direct the respondents to file their written statement in the suit, which they have abstained from filing for last nearly a year after institution of the suit and encouraging the opponents lawyers to file petition for dismissal of his lawful suit and his reluctance to order the petition to direct the 1st respondent to produce the material document with the case, viz., Bank Pass Book, illegally suppressed the production of which would decide the fate of the suit and result in the vindication of justice which the petitioner has been legitimately clamouring for, the Munsiff has received all these I.As. without passing an order and making it appear any order from him will be discretionary and the Court has a right to pass a wrong order or a right, order which the plaintiff may not question. Under this circumstance the petitioner has reasonable apprehension in his mind of not getting justice from the Court of 1st Additional Munsiff as he appears biased and made up his mind to dismiss the suit without reasonable or probable grounds.'
I.A-II filed by A-1 to stay all further proceedings in O.S. No. 103/1984 till the disposal of the Transfer Petition was in the hand of A-2. A-2 in support of the prayer for stay, submitted the Memorandum of Facts with his signature. In the said Memorandum, he stated that he was a Lawyer engaged by A-1 to prosecute O.S. No. 103/1984; that he was appearing for A-1 in the Transfer Petition; that O.S. No. 103 of 1984 had been posted for further proceedings before the I Additional Munsiff on 18-1-1989 and that ail the facts alleged in the Transfer Petition were to his knowledge substantially correct.
Sulochana and Sukanya, in response to the notice, appeared in Miscellaneous Case No, 1/1985 and filed a detailed counter refuting and repudiating the allegations and statements made In the Transfer Petition.
A-1 filed a rejoinder as per Ex.P-2 which is also the matter in issue, viz., the subject-matter of charge, reiterating his stand taken in the Transfer Petition.
The learned District Judge, in view of the allegations made against Jayaram Hegde in the Transfer Petition adhered to by A-1 in the rejoinder, asked Jayaram Hegde to offer his remarks. Jayaram Hegde submitted his remarks stating therein that A-2 and his daughter were the Judgment-debtors in a decree obtained by M/s. General Investment and Commercial Corporation Private Limited, Manipal; that in Execution Case No. 346/1978 filed by the decree-holder - the Corporation to realise the decretal amount, he had issued arrest warrant against A-2 and that the allegations characterised by him as reckless had appeared in the Transfer Petition because of the grievance nursed by A-2 as a result of his judicial act in issuing arrest warrant. He denied all allegations made by A-1 in the Transfer Petition.
The learned District Judge held inquiry. A-1 examined himself as P.W-1. N.N. Bhat, the Assistant Director of Prosecution, attached to the Office of the Superintendent of Police, Mangalore; Sukanya (respondent No. 2); Sulochana (respondent No. 1) in the Transfer Petition; U.R. Kini - a practising Advocate at Mangalore; O.T. Bhat, another practising Advocate at Mangalore were called by A-1 to give evidence on his behalf. They were examined as P.Ws - 2, 3, 4, 5 and 6 respectively. A-1 produced the photostat copy of an Interlocutory Application filed by him under Order 13 Rules 1 to 5 and Order 11' Rules 12 and 13 read with Section 151 of the C.P.C in this Court in O.S. No. 71/1981, marked as Ex.P-1; the photostat copy of the Memo issued by the Sub-inspector of Police to him, marked as Ex.P-2; and the copy of the notice issued to one Ramachandra Shastry, the Sub-Inspector of Police, Urva Police Station, marked as Ex.P-3.
Sulochana and Sukanya did not adduce any oral evidence during the inquiry, but they produced the Xerox copy of the Judgment in O.S. No. 175/1978, marked as Ex.D-1; the Xerox copy of the Judgment in R.F.A. No. 71/1981 on the file of this Court, marked as Ex.D-2; and copy of the plaint in O.S. No. 103/1984, marked as Ex.D-3.
The learned District Judge, on conclusion of the Inquiry and after hearing the submissions in view of the pleadings, the evidence and the arguments, formulated the following points for his determination:
(1) Whether the suit in O.S. No. 103/1984 can be transferred?
(2) Whether it is a fit case for referring the matter to the High Court for initiating contempt proceedings?
(3) What order?
After analysing the material and the evidence and after evaluating the same, the learned District Judge held that A-1 was not entitled to the prayer for transfer of O.S. No. 103/1984. He, therefore, recorded a finding against A-1 on point No. 1,
With regard to point No. 2, the learned District Judge agreed with the contention urged on behalf of Sulochana and Sukanya that A-1 and A-2 had committed criminal contempt of the Court of Munsiff (I Additional Munsiff) punishable under the provisions of the Act and recorded a finding on point No. 2 holding that the case was a fit one to refer it to this Court for Initiation of proceedings against A-1 and A-2 under the provisions of the Act. It Is pursuant to this finding that the Reference came to be made by the learned District Judge by the order dated 20-4-1985.
8. The Reference was registered in C.C.C. (Crimmal) No. 6/1985 and the proceeding was initiated against A-1 and A-2 by the order dated 15-7-1985 after having found a prima facie case to initiate proceeding and to direct notice.
9. Both A-1 and A-2 appeared in response to the notice and filed their affidavits by way of reply on 18-10-1985.
10. On 6-11-1985 they produced the copies of the rejoinder filed by A-1 in the Transfer Petition, of the affidavit filed by A-2 therein, of the depositions of Sulochana and Sukanya in the Transfer Petition when they gave evidence as witnesses for A-1, and of the letter dated 20-3-1985 written by A-2 to the President of the Bar Association, Mangalore. The above stateddocuments produced by A-1 and A-2 have been marked by them as Annexures 'A' to 'F' respectively. On 27-2-1986, A-1. and A-2 produced the true copy of the notice dated 27-12-1985, to the Editor, Printer and publisher of 'Udayavani' and a photograph in which, according to the, the District Judge who held inquiry and made Reference, figures with one Seetharam Shetty,a practising Advocate (at Mangalore).
11. On 13-11-1985, a Division Bench of this Court heard both the learned Advocate General and the learned Advocates representing A-1 and A-2 and concluded that a prima facie case had been made out against both A-1 and A-2 for framing a charge. The proceeding stoodadjourned to 4-12-1986 for framing charges. On 28-1-1987 A-2, on his request, was heard again on the question of the existence or otherwise of a prima facie case against him. On 18-3-1987 another Division Bench of this Court ordered the matter to be heard again regarding the framing of charge in view of the change in the constitution of the Bench.
12. The matter was heard on 15-9-1989 and 19-9-1989. On 8-11-1989, a considered and detailed order was passed holding that there was a prima facie case to frame charge against both A-1 and A-2.
13. Accordingly, the charges were framed against A-1 and A-2. A-1 stated that he had not committed any contempt and had defence to make, while A-2 pleaded not guilty to the offence charged, adding that he had defence to make. The pleas were recorded and the copies of the charge were furnished to them.
14. The matter was adjourned with a request to the learned Advocate General to file the statement of facts and affidavits, if any.
15. On 23-1-1990, the learned Advocate General filed a Memo with a request to admit the Transfer petition the rejoinder dated 19-3-1985 filed by A-1 in the Transfer Petition, the order of the District Judge dated 20-4-1985 passed in Miscellaneous Case No. 1/1985 and the Memorandum of Facts dated 16-1-1985 filed by A-2 in support of the application for stay of further proceedings in the suit sought to be transferred. The learned Counsel representing A-1 and A-2 were noticed of the Memo and they submitted that they had no objection to admit the documents in evidence for the Complainant and to mark them. Accordingly, the four documents mentioned in the Memo, referred to earlier, were marked as Exs.P-1, P-2, P-3 and P-4 respectively. The learned Advocate General submitted that he had no further evidence either oral or documentary.
16. On the request made by A-1 and A-2, the matter was adjourned to enable them to file affidavits in support of the plea. On 18-2-1990 A-1 filed an application to direct the learned Advocate General not to appear for the Complainant. He brought to the notice of the Court by his affidavit that the learned Advocate General, in his capacity as a practising Advocate, had appeared for Sulochana and Sukanya in Regular First Appeal No. 71/1981. In view of the prayer in the application, the learned Advocate General very fairly submitted that he would not prosecute the complaint and instruct the learned Additional State Public Prosecutor to conduct the proceeding on behalf of the Complainant. Thereafter, the learned Additional State Public Prosecutor conducted the proceeding.
17. On 16-3-1990, A-1 filed his affidavit and an application to summon Jayaram Hegde, the then I Additional Munsiff and S.V. Tilgul, the then District Judge, Mangalore, who held inquiry in the Transfer Petition and made a Reference to this Court for initiation of proceedings against A-1 and A-2 under the provisions of the Act, for cross-examination. The learned Additional State Public Prosecutor filed objections. After hearing both the sides on the application, this Court, by the order dated 25-6-1990, dismissed the application.
18. A-2 submitted that his affidavit filed on 18-10-1985 may be taken as his evidence.
19. Thereafter the matter was heard and stood adjourned to examine A-1 and A-2 under Section 313 of the Code.
20. On 14-9-1990, a Memo was filed by the learned Counsel who was representing A-2 about the death of A-2 on 3-9-1990.
21. A-1 was thereafter examined under Section 313. He stated that he had given Instructions to his Advocate (A-2) to file the Transfer Petition. When the contents of Ex.P-1, the Transfer Petition were put to him, he stated that he had given instructions to his Advocate to prepare. When the contents of the rejoinder were put to him, he gave the same answer given by him with regard to the contents of Ex.P-1. When the contents of Ex.P-3 were read over and explained to him, he stated that he cannot say anything to it, adding that he had not committed any contempt. He stated that he had no defence evidence to lead, adding that he had not committed any mistake and had not committed any contempt. He filed his written statement with the issue of 'Udayavani' adverted to earlier.
22. This is the summary of the facts of the matter and the account of the particulars of the proceeding in this Court.
23. The question is, whether the material and the evidence show and prove the commission of the offence of criminal contempt by A-1 as charged against him.
24. A comprehensive definition of the expression 'Contempt of Court' is provided in the Act. Section 2(a) defines 'Contempt of Court' as either 'Civil Contempt' or 'Criminal Contempt'. Clause (c) of Section 2 defines 'Criminal Contempt' as follows:
'(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 of 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.'
25. The first Sub-clause of Clause (c) of Section 2 deals with scandalization of the Court. This species of criminal contempt has been discussed in Halsbury's Laws of England, Third Edition, in Vol.8, Page 7 at Para-9 as under:
'Scandalous attacks upon Judges are punished by attachment or committal upon the principle that they are, as against the public, not the Judge on obstruction to public justice; and a libel on a Judge, in order to constitute a contempt of Court, must have been calculated to cause such an obstruction...The punishment is inflicted, not for the purpose of protecting either the Court as a whole or the individual Judges of the Court from a repetition of the attack, but of protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the Court, from the mischief they will incur if the authority of the Tribunal is undermined or impaired.'
26. Sub-clause (i) of Clause (c) of Section 2 embodies the concept of 'criminal contempt' by scandalous attack upon Judges as discussed in Halsbury's Laws of England. The said sub-clause takes within Its sweep cases in which by the publication, whether by words, spoken or written, or by signs, or by visible representations, or otherwise, of any matter or by the doing of any other act whatsoever which scandalises or tends to scandalise or towers or tends to lower the authority of any Court. The administration of justice is brought to ridicule and contempt. Any scandalous attack upon a Judge is regarded as obstruction to public justice whereby the authority of the Court Is lowered or undermined. In this species of contempt, obstruction to Public Justice is an important element and, therefore, a vital ingredient to constitute that kind of contempt.
27. Sub-clause (ii) of Section 2(c) speaks of prejudice or interference with the course of any judicial proceeding. This kind of criminal contempt is concerned with the administration of justice as the expression is commonly understood.
28. Thus, Sub-clauses (i) and (ii) deal with obstruction and prejudice or interference respectively in the way in which they are described in the said sub-clauses.
29. Sub-clause (iii) of Clause (c) of Section 2 is a residuary clause by which any other type of obstruction or interference with the administration of Justice is considered as a criminal contempt.
30. The word 'scandalization' is not defined in the Act. The word 'scandal' is defined in Black's Law Dictionary with Pronunciations, Fifth Edition, as under:
'Scandal. Defamatory reports or rumors; aspersion or slanderous talk, uttered recklessly or maliciously. Scandalous matter may be ordered stricken from the pleadings by a motion to strike. Fed.R.Civ.P.12(f). See also Defamation.'
31. The expression 'scandalum magnatum' is defined in the said Dictionary as under:
'Scandalum magnatum. In English Law, scandal or slander of great men or nobles. Words spoken in derogation of a peer, a Judge, or other great officer of the realm, for which an action lies, though it is now rarely resorted to 3 Bl.Comn.123. This offense has not existed in America since the formation of the United States.'
32. scandalization within the meaning of Sub-clause (i) to constitute a criminal contempt has, therefore, to be in respect of the Court or a Judge with reference to administration of Justice. It is in the light of the provisions contained in Section 2(c), we have to examine the allegations and statements made by A-1 in paragraphs Nos. 9, 10 and 11 of the Transfer Petition, Ex.P-1, adhered to in the reply statement, Ex.P-2.
33. But before doing so, it appears necessary to consider whether the statements and allegations made by A-1 which are the subject-matter of charge, merely constitute the offence of defamation as defined by Section 499 of the Indian Penal Code. An allegation may constitute a mere defamation. It may constitute both contempt and defamation. But the offence of contempt is something more than mere defamation and is of a different character. In Bathina Ramakrishna Reddy v. State Of MadraS, : 1952CriLJ832 it was held by the Supreme Court that the fact that the defamation of a Judge of a subordinate Court constitutes an offence under Section 499 of the Indian Penal Code did not oust the jurisdiction of the High Court to take cognizance of the act as a contempt of Court if it amounts to contempt. In that case, in an article in a Telugu Weekly known as 'Praja Rajyam', edited and published at Nellore, an article had appeared under the caption 'is the Sub-Magistrate, Kovvur corrupt?'. The purport of the article was that Surya Narayan Murthi, the stationary Sub-Magistrate of Kovvur was known to the people of the locality to be a bribe taker and to be in the habit of harassing litigants in various ways. He was said to have a broker through whom negotiations in connection with the corrupt practices were carried on. Several specific instances had been cited of cases tried by that Officer, where it had been rumored that he had either taken bribes or had put the parties to undue harassment, because they were obdurate enough to refuse the demands of his broker. The appellant had taken the sole responsibility for the article objected to and had asserted that the article had been published because of his anxiety to uphold the highest traditions of the Judiciary in the land and to create popular confidence in Courts the duty of which was to dispense justice without fear or favour and without any discrimination, caste, creed or community. Mukherjea, J., as His Lordship then was, who delivered the Judgment, described the article as a scurrilous attack on the integrity and honesty of a Judicial Officer. It was observed that if the allegations were false, they could undermine the confidence of the public in the administration of justice and bring judiciary into disrepute. The appellant was not in a position to substantiate by evidence any of the allegations made in the article. It was held that the appellant could not be said to have acted bona fide even if good faith can be held to be a defence at all in a proceeding for contempt.
34. In Re: THE EDITOR, PRINTER AND PUBLISHER OF 'THE TIMES OF INDIA' AND In Re: ASWINI KUMAR GHOSH AND ANR. vs ARABINDA BOSE & ANR, (1953) SCR 215 in a leading article in 'The Times of India' on the Judgment of the Supreme Court in Aswini Kumar Ghose v. Arabinda Bose and Anr., (1953) SCR 1 the burden was that if in a singularly oblique and infelicitous manner the Supreme Court had by a majority decision tolled the knell of the much maligned dual system prevailing in the Calcutta and Bombay High Courts by holding that the right to practise in any High Court conferred on Advocates of the Supreme Court had made the Rules in force in those High Courts requiring Advocates appearing on the original side to be instructed by Attorneys inapplicable to them. Mahajan, J., as His Lordship then was, speaking for the Court, said:
'No objection could have been taken to the article had it merely preached to the Courts of law the sermon of divine detachment. But when it proceeded to attribute improper motives to the Judges, it not only transgressed the limits of fair and bona fide criticism but had a clear tendency to affect the dignity and prestige of this Court. The article in question was thus a gross contempt of Court, It is obvious that if an impression is created in the minds of the public that the Judges in the highest Court in the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be magined.'
35. The Editor, Printer and Publisher of the Newspaper had tendered an apology. The Supreme Court accepted the same concurring in the expression of views in Ambard v. Attorney General of Trinidad, (1936) AC 322 In Brahma Prakash Sharma and Ors. v. The State of Uttar Pradesh, : 1954CriLJ238 the Supreme Court has enunciated the guiding principles to be followed by Courts in contempt proceedings. English decisions including those of the Privy Council have been discussed. The principles laid down for cases of the present kind, i.e., scandalising the Court are that there are two primary considerations which should weigh with the Court when it is called upon to exercise summary power in cases of contempt committed by scandalising the Court itself. It has been observed that 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 has been further observed that secondly, 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 libel on a Judge and what really amounts to Contempt of Court. 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. '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 is any way, to interfere with the proper administration of law'. In the said case, the resolutions which formed the basis of the contempt proceedings related to the conduct of two Judicial Officers, who were functioning at Muzaffarnagar. Appellant No. 1, the President of the Bar Association, had received numerous complaints regarding the way in which the two Judicial Officers had disposed of cases in their respective Courts and had behaved towards Lawyers and the litigant public. The Executive Committee of the Bar Association had taken the matter in hand, and after satisfying themselves that the complaints were legitimate and well-founded, had held a Meeting and had passed two resolutions. The resolutions had attributed incompetency, lack of courtesy, etc., and had referred to complaints against the two Officers, one a Judicial Magistrate and the other a Revenue Officer. The complaints had been sent to the District Magistrate, Commissioner and the Chief Secretary in the State.
36. In Re: Hira Lal Dixit and Two Ors., (1955) SCR 677 7. (SIC) the principles enunciated in the case of Brahma Prakash Sharma and Ors. were applied and reaffirmed. In that case, words which had been used in a poster which had been published had the necessary Implication that the Judges who decided in favour of the Government were rewarded by the Government with appointments to the Supreme Court. Although the case did not relate to scandalising of the Court, the question posed was, whether the offending passage was of such character and import or made in such circumstances as would tend to hinder or obstruct or interfere with the due course of administration of justice by the Supreme Court. It was answered in the affirmative and the contemnor was held guilty of Contempt of Court.
37. In State of Madhya Pradesh v. Revashankar, (1959) Scr 1367 in an application made under Section 526 of the Code of Criminal Procedure 1899 in certain criminal proceedings, serious aspersions had been cast against a Magistrate Mr. N.K. Acharya. Reliance was placed again in the Brahma Prakash Sharma's case and the principles laid therein. The Supreme Court held that the aspersions which had been made amounted to something more than a mere intentional personal insult to the Magistrate; that they scandalised the Court itself and impaired the administration of justice; and that proceedings under the Contempt of Court could be taken against the contemnor.
38. Thus, the principles which would govern cases of the present kind stand now fully settled by the decisions of the Supreme Court, referred to supra,
39. In Perspective Publications (P) Ltd. and Anr. v. State of Maharashtra , : 1971CriLJ268 the Supreme Court, after referring to its earlier decisions and on a review of the law on the point, laid down:
'...We may re-state 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 for scandalizing 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 Mukherjea, J., (as he then was) Brahma Prakash Sharma's case [(1953) S.C.R. 1169] the publication of a disparaging statement will be on 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 decor 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.'
40. In the case of Perspective Publications (P) Ltd. & Anr. supra, one T had filed a suit claiming Rs. 3 lacs damages for libel against a newspaper. The suit had been decreed by a Judge of the Bombay High Court. Thereafter an article had been published in a publication brought out by appellant No. 1 and of which appellant No. 2 was the Editor, Printer and Publisher. The article had contained insinuations that there was a connection between a loan of Rs. 10 lacs, granted to a firm in which the Judge's brother was a partner, and the Judgment in the defamation case; and that the Judge knew about the loan having been granted to the firm. Both the appellants had been found guilty of Contempt of Court.
41. In appeal to the Supreme Court, it had been contended that: (1) in the article no aspersion had been cast on the integrity of the Judge nor was any imputation of dishonesty had been made; (2) proceedings for contempt for scandalizing a Judge had become obsolete, the proper remedy being for the Judge to take action for libel; (3) the allegations had been made in the bona fide belief that they were truthful and there was no evidence that the Judge did not know about the transaction; and (4) the statements, if at all, amounted to a charge of bias against the Judge and could not be regarded as contempt.
42. The Supreme Court held that the obvious Implications and Insinuations made in the various paragraphs of the article, read as a whole, created a strong prejudicial impact on the mind of the reader about the tack of honesty, integrity and impartiality on the part of the Judge in deciding the defamation suit; and that it was 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. But, if an article attributed improper motives to the Judge, it not only transgressed the limits of fair and bona fide criticism but had a clear tendency to affect the dignity and prestige of the Court and would amount to Contempt of Court. It was held that it would not be right to say that committals for contempt of Court for scandalizing the Court had become obsolete and that there is a distinction between a mere libel or defamation of a Judge and what amounts, to Contempt of Court, that the tests are; (i) is the impugned publication a mere defamatory attack on the Judge or is it calculated to interfere with the due course of justice or the proper administration of lay by his Court? and (ii) is the wrong done to the Judge personally, or is it done to the public? it was held that the publication of a disparaging statement would 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.
43. The Supreme Court observed, a 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.
44. There are decision of English Courts from early time where the Court assumed jurisdiction in taking committal proceedings against persona who were guilty publishing scandalous matter in respect of Court Itself. No doubt, in McLEOD v. St. Aubin, (1899) AC 549 Lord Morris observed that 'committals for contempt by scandalizing 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 indication of a Judge as a person. He must resort to action for libel of criminal information.'
45. But a look at the subsequent decisions would show that the observations made by Lord Morris are not correct. In 1900-2 QB 36(A), contempt proceedings for scandalizing the Court were taken. There was a scandalous attack of a rather atrocious type on Darling, J, The Judge, in the course of the trial of one Wells, sitting in Birmingham Assizes, for selling and publishing obscene literature, had given 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 had published an article in the Birmingham Daily Argus under the heading 'An Advocate of Decency' and had abused Darling, J., in scurrilous language. The case of Wells had been over but the Assizes were still sitting. The publication amounted to Contempt of Court and was calculated to Interfere directly with proper administration of justice. Lord Russell, in the course of his Judgment, while observing that in cases where the Court itself was attacked, the summary Jurisdiction by way of contempt has to be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt, held that if it is not a case beyond reasonable doubt, the Court should and ought to leave the Attorney General to proceed by criminal Information.
46. In Debi Prasad v. Emperor, 1943 PC 202 Lord Atkin, while delivering the Judgment, observed that cases of contempt which consist of scandalising the Court Itself, are fortunately rare and require to be treated with much discretion. It was said that proceedings for this species of contempt - the scandalization of Court Itself, 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.'
47. It is in the light of the principles laid down by the Supreme Court, supra, and the decisions of English Courts that we have to proceed to examine the facts stated in paragraphs Nos. 9, 10 and 11 of the Transfer Petition and the reply statement.
48. The averments and allegations, which are the subject-matter of charge, have been made in the Transfer Petition, adhered to in the rejoinder. A-1 filed the Transfer Petition after his application for the grant of temporary injunction restraining Sulochana (defendant No. 1 in the suit) from executing the decree, was dismissed by Jayaram Hegde, the I Additional Munsiff, with costs. It Is in the context of the prayer for transfer of his suit from the file of Jayaram Hegde to some other Court or to the District Court for trial and disposal that A-1 came to make the allegations, presumably to make out a case for the grant of the prayer.
49. It Is in the light of the aforesaid circumstances, we proceed to examine the allegations to determine as to whether they merely constitute a libel against Jayaram Hegde or both libel against him and Contempt of Court of the Munsiff (I Additional Munsiff).
50. Before doing so, we wish to make It clear that the right to ask for transfer does not give right to commit Contempt of Court, nor a citizen in the guise of making a Transfer Petition has a right to bring the authority of the Court Into disrepute or ridicule. Imputations calculated to affect the administration of justice or to lower the authority of the Court cannot be excused or condoned under the garb of a Transfer Petition. In Gobind Ram v. State of Maharashtra, : 1972CriLJ620 the Supreme Court pointed out that in the garb of a Transfer Petition, a person cannot be allowed to commit Contempt of Court by making allegations of a serious and scurrilous nature scandalising the Court and imputing improper motives to the Judge trying the case.
51. In Paragraph-9 of the Transfer Petition, A-1 stated that to his utter dismay and disappointment, from the ways of Jayaram Hegde, it becomes obvious to him that Jayaram Hegde was under deleterious influence of clique of Lawyers (to which A-1 has made a reference in the earlier paragraphs of the Transfer Petition) who had befriended him. He stated that the clique of Lawyers was meeting Jayaram Hegde frequently at secret rendezvous in drinking parties and revelries.
The Import of these statements would show that Jayaram Hegde had gone under the hurtful or destructive or poisonous influence of a group of Lawyers who had developed friendship with him and that they and Jayaram Hegde were meeting at secret appointed meeting place by appointment and were indulging in drinking and merrymaking.
52. A-1 stated further in paragraph-9 that he reliably learnt and verily believed that Sulochana and Sukanya were women of easy virtue; that they were residing in the neighbourhood of Jayaram Hegde's quarters and appeared to be in terms of familiarity with him on account of their introduction by the jurisdictional Police Officer. He further stated that the jurisdictional Police Officer was a class-mate and churn of Jayaram Hegde; that they appeared to be birds of the same feather; that the Sub-Inspector was a frequent visitor to the Quarters of Jayaram Hegde and was virtually under his guidance in regard to the criminal complaint made by him (A-1) bearing on the declaratory suit.
53. By making these statements, A-1 wanted to show that Sulochana, a woman of 55 years of age, and Sukanya, a married woman of 32 years of ago, employed in Syndicate Bank, were women of easy virtue; that they were residing in the neighbourhood of Jayaram Hegde's Quarters; that they had been introduced to him by the jurisdictional Police Officer a classmate and chum of Jayaram Hegde and that they were in terms of familiarity with Jayaram Hegde. He also wanted to show that the Sub-Inspector was a frequent visitor to the Quarters and Jayaram Hegde was guiding him with regard to the criminal complaint lodged by him (A-1) which had a bearing on the declaratory suit.
54. In paragraph-10 of the Transfer Petition, A-1 characterised the dismissal of his Interlocutory Application with a compensatory cost of Rs. 1000/-as unheard of in the judicial history of the Country and that the dismissal had defeated the very object of the suit filed by him. He stated that he knew and verily believed that Jayaram Hegde did it in gross misuse of his power and in adherence to corruption. Clearly enough A-1 intended to state that Jayaram Hegde was a corrupt Judicial Officer and that guided by corrupt motives and in gross misuse of his judicial power, he had dismissed the Interlocutory Application and that It was unheard of in the judicial history of the Country. A-1 further stated in paragraph-10 that Jayaram Hegde Interfering in the discharge of the duties by the Sub-Inspector, had persuaded the Sub-Inspector to give a belated endorsement on the complaint lodged by A-1 displaying the reply in a tone and tenor of criminal intimidation.
55. In paragraph-11, A-1 stated that Jayaram Hegde, going out of the way, was coaxing people to file frivolous suits through his Lawyer friends; that his activity had become the talk of the town; and that Jayaram Hegde had Instigated another friend of him working as a Police Officer to institute a suit in his Court in respect of departmental proceedings taken against the concerned Police Officer with the assurance that he would stop the proceedings. A-1 wanted to state that Jayaram Hegde was in the habit of asking people to commence frivolous litigations through his Lawyer friends; that the said activity had become a talk of the town and that Jayaram Hegde had asked a Police friend of his to file a suit in his Court with assurance of help to stall the Departmental Proceedings with the power and jurisdiction vested in him as a Judicial Officer.
56. A-1 further stated that he learnt that the drafting (of the plaint of the Police Officer) had been done at the dictation of Jayaram Hegde and that Jayaram Hegde, by his activities, had forfeited the confidence and trust of the litigant public. He further stated by displaying intrinsic perversity and Illicit Inclination of mind, Jayaram Hegde had shaken his confidence in getting justice in the suit.
57. He also stated, misusing his jurisdiction, Jayaram Hegde had not passed orders in his suit Intended to advance and sub-serve justice. In the rejoinder, he stated that, 'every word of the imputation made in the Transfer Petition was true and would stand the test of scrutiny anywhere and any place people held as sacred,'
58. In our opinion, the allegations made by A-1, adverted to earlier, reaffirmed in the rejoinder, constitute both defamation and contempt. No doubt, A-1 went before the District Judge with Miscellaneous Case No. 1/1985 to lift his suit from the file of Jayaram Hegde to some other Court or to the District Court and he was within his right to mention the grounds in the Transfer Petition which were sufficient to show or profanities his apprehension that ho was not likely to get fair and even handed justice at the hands of Jayaram Hegde. But the meat of the matter is, whether the allegations made by A-1, to which we have made a detailed reference earlier, contain such grounds which A-1 was entitled to urge in support of the prayer,
59. After carefully and closely going through the allegations, it is difficult for us to hold that the reflection made by A-1 on the conduct and character of Jayaram Hegde are limited to the discharge of the Judicial duties by Jayaram Hegde, Nor it can be said the reflection is made as a ground to seek the transfer. The question as to whether the reflection is 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 does not really arise in view of the context in which A-1 made the allegations against Jayaram Hegde. Even if we assume the right in favour of A-1, to our mind, the allegations imputing improper motives, and extra-judicial activities as they do clearly transgress the bounds of fair and bona fide criticism, but have a pointed and clear tendency to affect the dignity and prestige of the Court over which Jayaram Hegde was presiding.
60. There is no gain saying the fact that the attacks and comments made by A-1 on Jayaram Hegde are disparaging in character and derogatory to his dignity. It is not difficult to see that the disparaging allegations are calculated to interfere with the due course of Justice and proper administration of law by the Court of Jayaram Hegde.
61. The allegations create and decidedly tend to create an apprehension in the minds of the people regarding the integrity and fairness of Jayaram Hegde. They tend to deter actual and prospective litigants from placing complete reliance upon the administration of justice by the Court of Munsiff. Jayaram Hegde, besides having suffered a sense of humiliation and Insult, must have also suffered extreme embarrassment in the discharge of his judicial duties.
62. It is well established that It Is not necessary to prove affirmatively that there has been actual interference with the administration of Justice by reason of the defamatory statements. It is enough if it is likely or tends in any way to interfere with the proper administration of law. In the present case, needless to add, the allegations are/were likely and are/were surely of the tendency to interfere with the proper administration of Justice.
63. The import of the allegations, insinuations in nature, as they are against the public and obstruction to public Justice is apparent and evident in the allegations. A bare reading of the allegations with the implications of the language used would leave no doubt in our mind that they are of such import and character as to undermine and impair the authority of the Court exposing those, who either voluntarily or by compulsion, were subject to the jurisdiction of the Court of Munsiff.
64. Needless to state, the administration of Justice in the Court of the Munsiff was brought to ridicule and contempt by the allegations made by A-1. The allegations ex-facie show that they lowered and undermined the authority of the Court causing serious obstruction to public Justice. The allegations are undoubtedly with reference to administration of Justice. In our opinion, this is not a case where Jayaram Hegde, as an individual, has been defamed. The purport of the allegations was to make a scurrilous attack on the integrity and honesty of Jayaram Hegde. If they are false, which appears to be so in view of the findings given by the District Judge on the basis of evaluation of evidence, they undermine and must have undermined the confidence of the public in the administration of Justice by Jayaram Hegde. It appears from Ex.P-3, the order, that A-1 was not in a position to substantiate by acceptable evidence any of the offending allegations made in paragraphs Nos. 9, 10 and 11, more particularly, the allegations in paragraph-9.
65. The allegations cannot be protected on the ground that A-1 had to show that his apprehension that he would not get fair and Impartial Justice at the hands of Jayaram Hegde in his suit was a probable and reasonable one. It cannot also be said that the allegations if looked in that light and from that point of view would stand protected. We have earlier said that A-1 had no justification to transgress the limits of all decency and indulge in violent, disparaging and atrocious attacks on Jayaram Hegde. The allegations attributed improper motives transgressing the limits and had a clear tendency to affect the dignity and prestige of the Court of Munsiff. It is obvious that the allegations must have created an impression in the minds of the public that Jayaram Hegde was acting on extraneous considerations in deciding cases, and was going out of way and was indulging in activities unbecoming of a Judicial Officer. If that were the impression, the confidence of the whole community in the administration of Justice must have been undermined and we dread to think that no greater mischief than that can possibly be imagined.
66. In our considered view, the aspersions on Jayaram Hegde not only amount to defamation and intentional personal insult, but amount to clear Contempt of Court. They are scandalising in nature and character and have the mischief of impairing the administration of Justice. When the allegations are such as can be said that they are calculated to interfere with the due course of Justice and the proper administration of law by Jayaram Hegde, we cannot avoid the inevitable conclusion that the attacks which are ex facie defamatory, are also such as to come within the mischief of contempt. The allegations in paragraphs Nos. 9, 10 and 11 of the Transfer Petition when read both paragraph-wise and as a whole, create a strong prejudicial impact on the mind of the render about the lack of honesty, Integrity and impartiality of Jayaram Hegde as a Judge. As observed earlier, the allegations transgress the limits of fair and bona fide criticism and show a clear tendency to affect the dignity and prestige of the Court of Munsiff.
67. For all the aforesaid reasons, we hold that the allegations, the subject-matter of charge, constitute clear criminal contempt in the eye of law.
68. The question is, whether the allegations stand protected under the provisions of Section 6 of the Act - the sheet-anchor of A-1. Section 6 of the Act reads:
'6. Complaint against Presiding Officers of subordinate Courts when not contempt:- A person shall not be guilty of Contempt of Court in respect of any statement made by him in good faith concerning the Presiding Officer of any subordinate Court to-
(a) any other subordinate Court, or
(b) the High Court, to which it is subordinate.
Explanation:- In this Section, 'subordinate Court' means any Court subordinate to a High Court.'
69. The Section laws down that a person shall not be guilty of Contempt of Court in respect of any statement made by him in good faith concerning the Presiding Officer of any subordinate Court to any other subordinate Court, or the High Court to which it is subordinate.
70. Sri M.S. Subbarayappa, the learned Counsel for A-1. made a fervent plea that the statements in paragraphs Nos. 9 to 11 of the Transfer Petition were made in good faith concerning Jayaram Hegde to the District Court subordinate to this Court and that they do not constitute Contempt of the Court of the Munsiff. According to him. A-1 was perforce obliged to make the statements since A-1 reasonably apprehended that he would not get fair and impartial justice at the hands of Jayaram Hegde in the suit.
71. Having given our anxious consideration to the submission in the light of the provisions of Section 6 and the nature and character of the allegations, we do not feel persuaded to accept the submission.
72. The recommendation of the Sanyal Committee has relevance in the context of examining the soundness of the contention.
'The Sanyal Committee observes:
The object of the law of contempt is not to provide a cloak for judicial authorities to cover up their inefficiency or to stifle criticism made in good faith against such officers. The ordinary right of making or publishing fair comments on the merits of any case which is no longer pending or on the conduct of any judge in relation to any such case may not be adequate protection for a person who desires in good faith to expose a judicial officer with a view to enabling a superior authority to take the necessary action. In the case of the subordinate Judiciary, the law of contempt ought not to stand in the way of complaint against them being made in good faith to the appropriate superior authorities...
In these circumstances, and having regard to the fact that in the public interest some machinery should be available for bringing inefficient and corrupt officers to book, we are of the opinion that it would be advisable to state expressly and clearly in the law that a complaint against a Judicial officer made to the appropriate superior authority shall not amount to contempt.'
73. To begin with, A-1 made the statements in the Transfer Petition filed under Section 24 of the C.P.C. Evidently, they were not made in the form of a complaint to a superior Court with a view to enable It to take the necessary action against Jayaram Hegde. The Law of Contempt undoubtedly cannot stand in the way of complaint against the subordinate judiciary being made in good faith to the appropriate superior authority. A complaint against a Judicial Officer made to the appropriate superior authority in the public Interest would not amount to contempt. That appears to be the dominant purpose and object of the Legislature in enacting Section 6 of the Act.
74. Even If it is assumed for the sake of arguments without so holding that though under the Transfer Petition A-1 sought the relief of transfer of his suit, the Transfer Petition is in the nature of a complaint made against Jayaram Hegde to the District Court with a view to enable the District Court to take action, still the question that stares at our face demanding answer is, whether, on the facts and in the circumstances of the case, it can be said that the statements made by A-1 were in good faith.
75. The expression 'good faith' has not been defined in the Act. The Apex Court in the case of Bathina Ramakrishna Reddy supra, examined the defence of good faith in the light of the definition of the expression given in Section 52 of the Indian Penal Code which reads as under:
'52. 'Good faith' - Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention.'
76. If the statements in paragraphs Nos. 9, 10 and 11 are examined in the light of the definition of 'good faith' in the Indian Penal Code and the meaning to be given to the expression as a result of Judicial consensus, it cannot be said that the statements were made by A-1 with due care and caution.
77. A perusal of Ex.P-3, the order, would indicate that A-1 chose to substantiate the statements in paragraphs Nos. 9 to 11 by entering the Witness Box and by calling the other witnesses to give evidence in support of the same. The learned District Judge in paragraph No. 13 of his order, has observed with regard to the first part of the allegations in paragraph-9, as under:
'13. POINT No. 1: The first serious allegation against the Munsiff Mr. Jayaram Hegde is in para 9 of the transfer petition, and the same reads:
'In the above suit for declaration, to the petitioner's dismay and utter disappointment, from the ways of the said Additional Munsiff, it has become obvious that he has been under deleterious influence of the aforesaid clique of lawyers, who had befriended him. They have been meeting him frequently at secret rendezvous in drinking parties and nevelries.' No evidence is let in to substantiate this allegation. Therefore, it shall have to be held that this serious allegation made against the Advocates and the learned Munsiff is baseless and false.'
78. As regards the allegations made in the latter part of paragraph-9, the learned District Judge, after referring to the evidence of A-1 extensively and quoting the relevant evidence verbatim, concluded:
'20. The manner in which the evidence is let in clearly goes to show that false assertions have been made with a view to scandalize the Court. The evidence of the petitioner Mr. Ravindra Pai himself is sufficient to arrive at a conclusion that his assertion that Sulochana and Sukanya are visiting the house of Mr. Jayaram Hegde, Munsiff, is false.'
79. It is clear that A-1 maintained that his allegations about Sulochana and Sukanya being on familiar terms with Jayaram Hegde were based on his personal knowledge. He went to the extent of saying that Sulochana and Sukanya were women of easy virtue; that he knew the same from a long time and had observed their connections with Jayaram Hegde personally. He stated that his allegations regarding the character of Jayaram Hegde made in paragraph-9 were based on his personal knowledge.
80. With regard to the allegation of Sulochana and Sukanya being on familiar terms with Jayaram Hegde, this is what the learned District Judge says:
'If what Mr. Ravindra Pal stated before Court is true, then he would have been in a position to let in some tangible and reliable evidence to substantiate his contention, if they were really true. Whatever may be the nature of the contentions put forward, it is really strange that not a single suggestion was put to Sulochana P.W-4 and Sukanya P.W-3 regarding this aspect of the case. It is equally strange that no suggestions were put to them about their illicit intimacy with Mr. Jayaram Hegde, Munsiff.
22. I hold that the evidence let in by the petitioner Mr. Ravindra Pai on this aspect is false and false to his knowledge.'
81. From the findings of the learned District Judge, it becomes clear that A-1 made the allegations without duo care and attention, nay he made unfounded allegations, deliberately, recklessly and maliciously. In the present proceeding, A-1 made no attempt or effort to prove any of the allegations made in paragraphs Nos. 9 to 11 of the Transfer Petition. The allegations lack bona fides. They appear to have been made actuated with mala fides. They lack good faith.
82. Even If we examine the statements in the light of the definition of the expression given in Section 3(32) of the General Clauses Act 1897, we find it difficult to hold that they were made by A-1 in good faith. According to the definition, a thing has to be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not in our opinion, honesty is absent in the allegations. As observed earlier, the allegations appear to have been made recklessly and maliciously.
83. For the aforesaid reasons, we hold that A-1 cannot take shelter or seek protection to absolve himself of the liability and culpability under Section G of the Act.
84. Sri M.S. Subbarayappa, the learned Counsel for A-1, submitted that there was a division in the Bar at Mangalore; that a group of Lawyers with one Sri Ramanath Kini as its leader was against A-2; and that the strained relations between the said group and A-2 was responsible for the language employed in paragraphs Nos. 9 to 11 of the Transfer Petition. He also submitted that A-2, the Lawyer, engaged by A-1 was nursing a grievance against Jayaram Hegde for he having issued an arrest warrant against A-2 in an Execution proceeding and that the possibility of A-2 having exploited his engagement by A-1 to air and ventilate his grievances against Jayaram Hegde is not ruled out.
84(a). Sri M.S. Subbarayappa to emphasise the point, referred us to certain words and phrases in the Transfer Petition and the rejoinder. Undoubtedly, when pleadings, applications, petitions, affidavits, etc., are drafted by Lawyers, they carry into them the language of the Lawyers. But the authors would be the parties and not the Lawyers, and as such the responsibility for the averments would be of the parties and not of the Lawyers.
85. Even assuming for the sake of arguments that a rivalry existed between a group of Lawyers stated to have been headed by one Sri Ramanath Kini and A-2, that could not have been the basis for A-1, even taking a charitable view, to make scurrilous, outrageous and atrocious allegations against Jayaram Hegde. True, as appears from Ex.P-3, in the Remarks that were called for by the District Judge with regard to the averments made in the Transfer Petition, Jayaram Hegde stated that the baseless and reckless allegations had been made against him by A-2 with an ulterior motive because of the issuance of arrest warrant by him against A-2 in the Execution proceedings. A-2 might have taken advantage of his employment by A-1 in the suit as well as in the Transfer Petition to attribute motives of lack of integrity against Jayaram Hegde in a more pronounced manner. But, on that score, A-1 cannot be exonerated from the criminal contempt he is shown to have committed. It was A-1's Transfer Petition. An English knowing businessman like A-1 should have known the consequences of allegations of the nature made in the Transfer Petition. Admittedly he had no grouse or grievance against the group of Lawyers opposed to A-2. Nor is there any material to show that the said group or any one in it had ill-will or animus against A-1. It appears that A-1 wanted to pass; off the buck to A-2 after his demise. That it is so is clear from the material on record. In his affidavit filed on 18-10-1985 by way of reply to the show cause notice, A-1 stated that he is an English knowing person and denied that his Advocate (A-2) encouraged him to make the allegations contained in his Transfer Petition adding that he was the author of the allegations. A-1 is a businessman by avocation and on his own showing as noticed earlier, he is an English knowing person. He maintained in unequivocal terms as early as on 18-10-1985 that all the allegations made in the Transfer Petition were his, emphatically denying that A-2 encouraged him to make the allegations. On the face of this sworn statement of A-1, it is difficult to accept his contention put forward now, evidently after the demise of A-2, that he had simply instructed his Advocate to draft the Transfer Petition and rejoinder and that he lent his signature to the same without affirming or adhering to what has been stated therein.
86. We must, therefore, negative the contention of Sri M.s. Subbarayappa that A-1 cannot be said to have committed criminal contempt by making attacks on Jayaram Hegde in the transfer Petition and reiterating the same in the rejoinder. A-2 might have exploited the occasion of his engagement by A-1 to air his grievance against Jayaram Hegde. But A-1 cannot run away from the responsibility of the allegations made in his Transfer Petition with his solemn declaration.
87. We have exercised the summary jurisdiction with great care and caution only when we found its exercise necessary for the proper administration of law and Justice keeping in mind the object and purpose of the exercise of summary jurisdiction.
88. Highlighting the object and purpose, Oswald on Contempt of Court (3rd Edition), page 49, observed:
'To charge a Judge with injustice is a grievous contempt. To accuse him of corruption might be a worse insult, but a charge of injustice is as gross an insult as can be imagined short of that. The arraignment of the justice of the Judges is arraigning the King's justice; it is an impeachment of his wisdom and goodness in the choice of his Judges, and excites in the minds of his people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them.'
89. Stating the principle upon which commitments are made for contempt, it is observed in the Book:
'To keep ablaze of glory around them, and to deter people from attempting to render them contemptible in the eyes of the public.... A libel upon a Court is a reflection upon the King, and telling the people that the administration of justice is in weak or corrupt hands, that the fountain of justice itself is tai(SIC), and consequently that Judgments which stream out of that fountain must be impure and contaminated.' (Oswald on Contempt, 3rd Edition,Page 50).
90. We have examined the material, the evidence and the contentions of the learned Additional State Public Prosecutor and Sri M.S. Subbarayappa, the learned Counsel for A-1, keeping in mind the principles laid down by the Supreme Court In Re: S. Mulgaokar, AIR 1978 SC 727 and P.N. Duda v. P. Shiv Shanker and Ors., : 1988CriLJ1745 on which considerable dependence was placed by the learned Counsel for A-1. Having done so, we are bound to hold that the evidence placed on record by the Complainant has shown beyond any shadow of doubt that A-1 has committed the criminal contempt of the Court of Munsiff (the I Additional Munsiff).
91. We, accordingly, hold A-1 guilty of the offence of criminal contempt and convict him for the said offence.
92. Before going Into the question, i.e., whether, on the facts and in the circumstances of the case, A-1 deserves punishment or not and If he deserves, the measure of punishment, we must observe that the repeated statement made by A-1 in the course of the proceeding in his affidavits and written statement that 'he has highest regard for Courts established under law and supremacy of judiciary under the Constitution' would not constitute a sense of contrition or remorse. All along, the defence or A-1 has been truth, good faith and justification. We must say that A-1 has failed to substantiate the defence even on the test of probabilities.
93. The criminal contempt committed by A-1 is gross and grave with the unimaginable and incalculable harmful consequences to Public Justice. The allegations excite and must have excited in the minds of the people a general dissatisfaction with the judicial determinations of Jayaram Hegde. They have the tendency to shake and must have shaken fundamentally the allegiance of people to the law. The allegations constitute most fatal and dangerous obstruction to public justice. In view of the nature and gravity of the contempt committed by A-1, the harmful consequence it must have and is likely to have on the system of administration of Justice, we are clearly of the view that this is not a case where punishment on the contemner (A-1) can be said to be not expedient or warranted.
94. The aim of proceeding in contempt is to protect the confidence in the Courts that Justice would be administered in them. The object is to protect the public against any act calculated to undermine the confidence of the public in the Judge's authority. Any impairment in the administration of Justice erodes the traditional and accustomed confidence and faith of the people in the Impartial and objective approach of the Judges which is one of the vital and Important factors for sustenance and survival of democracy and for maintenance, preservation and protection of the Rule of Law.
95. The High Court has a right, indeed a duty to protect subordinate Courts against contempt.
96. Keeping in mind the object and purpose of summary jurisdiction to punish for contempt, the aim of contempt proceedings, the object of punishment, we feel that the punishment we Impose on A-1 must not only express our disapproval of what A-1 has done, but also must be deterrent. The punishment Is Inflicted in a contempt proceeding not for the purpose of protecting either the Court as a whole, or the Individual Judge of the Court from a repetition of the attack, but for protecting the public and especially those who either voluntarily or by compulsions subject themselves to the jurisdiction of the Court from the mischief they will incur if the authority of the Court is undermined or impaired. The chief objective of the contempt proceeding is to deter a man from offering any indignities to the course of Justice and the essential feature of the proceeding is the exercise of a summary power by the Court itself in regard to the delinquent. Having regard to the nature and character of the contempt committed by A-1, the scurrilous, offensive, intimidatery and malicious nature of the allegations made transgressing the limits of decency and beyond condonable limits, we feel the arm of law in the name of public interest and Public Justice must reach A-1 with a deterrent punishment. A-1 has challenged the supremacy of the administration of Justice and Rule of Law by making foul and malicious allegations against Jayaram Hegde. We have examined the question of punishment having regard to the provisions contained in Sections 12 and 13 of the Act. We have come to the conclusion, since the allegations substantially obstruct and interfere the due course of Justice and have tendency to obstruct and interfere with the due administration of Justice, A-1 deserves a deterrent punishment.
97. We, therefore, hold that the ends of Justice demand both sentence of Imprisonment and sentence of fine.
98. Having regard to the year of the initiation and commencement of proceeding, the duration of the proceeding, the hardship and Inconvenience suffered and experienced by A-1, we feel It would serve the cause of Justice If A-1 is sentenced to suffer Simple Imprisonment for a period of three months and to pay a fine of Rs. 1,000/- with a default clause. We accordingly sentence A-1 to undergo Simple Imprisonment for three months and to pay a fine of Rs. 1,000/-, We direct A-1 to suffer Simple Imprisonment for a period of 15 days in default of payment of fine.