Basil Scott, C.J.
1. On the 16th September, we granted a rule, at the instance of the Advocate-General, calling on Narsinha Chintaman Kelkar as editor and publisher of the 'Mahratta' newspaper, to show cause why he should not be committed, or otherwise dealt with according to law for contempt of Court in 1 respect of an article published by him in the issue of the said newspaper of the 26th of July, 1908, containing certain contemptuous and defamatory matter of, and concerning Mr. Justice Davar, one of the Judges of this Court. The accused has put in an affidavit in which he admits that He wrote the article, but defends it as fair and legitimate comment, on a matter of public interest (namely, the trial of Bal Gangadhar Tilak) written after the trial was finished in the discharge of his duty as a journalist.
2. The article which is in English and divided into seven paragraphs suggests very plainly in the third paragraph that at the trial the conviction of the accused was secured by Government by the collusion of the presiding Judge, that the Judge in allowing only half an hour for the midday adjournment, realized the importance of finishing the trial on the day before the Indian Budget debate in Parliament, and that by means of significant hints to the Advocate-General, and unusual haste in closing the proceedings the net was woven around the life of the accused surreptitiously, in the closing vesper hours. These suggestions appear to rest upon no more solid basis than the fact that as happens from time to time in criminal trials in the High Court the sitting was prolonged after the usual hour of rising on the last day of the trial in order to finish the case that evening.
3. In the fifth paragraph of the article the honesty of the Judge is again the subject of attack. He is said to have been guilty of affectation in the solicitude he expressed for the accused during the trial and that when the moment for the charge to the jury had arrived, everything was changed, for as soon as the Judge had found his liberty of speech, he made every point against the accused taking upon himself to bestow a one-sided and adverse treatment on the incriminating articles and trying to make the case more complete for the prosecution, than the Advocate-General himself had done, byferreting out hidden words and hidden innuendoes, which were never touched by counsel for the Crown. We have had occasion recently to examine the proceedings at the trial on the application of the accused for leave to appeal to his Majesty in Council, and we consider that there is no justification -whatever for such remarks.
4. In the sixth paragraph of the article the writer states that he is going to blame Mr. Davar the gentleman and not Mr. Davar the Judge, and then proceeds to discuss certain remarks of the Judge uttered in his judicial capacity when passing sentences; referring to the Judge as a medical quack in a red robe, as an enemy of the accused, privileged to sit upon the Bench, as an impudent glow-worm holding his torch to the Sun.
5. Counsel for N.C. Kelkar has not attempted to justify the passages to which I have referred, but has claimed that a judge after the trial is over, is handed over to criticism and that the article amounts to criticism and nothing more. In my opinion the article far oversteps the bounds of fair criticism, it attacks the independence and honesty of the Judge without any justification and indulges in scurrilous abuse of him in his character of a Judge presiding at the Criminal Sessions of this Court.
6. I can make no remarks on this case more appropriate than those contained in the following passages from the judgment of the Lord Chief Justice of England in Reg. v. Gray [1900] 2 Q.B. 30.
It is not too much to say that it is an article of scurrilous abuse of a judge in his character of a judge. It cannot be doubted that the article does constitute a contempt of Court. Any act done or writing published, calculated to bring a Court or a judge of the Court into contempt or to lower his authority, is a contempt of Court. Further, any act done or writing published calculated to obstruct or interfere with due course of justice, or the lawful process of the Courts is a contempt of Court. The former class belongs to the category which LordHardwicke, L.C. characterised as, scandalising a Court or a judge. That description of that class of contempt is to be taken subject to one and an important qualification. Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as a contempt of Court. The law ought not to be astute in such cases to criticise adversely what under such circumstances and with such an object is published, but it-is to be remembered that in this matter the liberty of the press is no greater and no less than the liberty of every subject of the Queen. Now as I-have said no one has suggested or could suggest that it falls within the right of public criticism in the sense I have described. It is not criticism : I repeat that it is personal scurrilous abuse of a judge as a judge. We have therefore to deal with it ' brevi manu.'
7. The position of N.C. Kelkar has not been improved by the defiant attitude taken up by counsel upon his instructions. Although every opportunity was given to him to submit and apologise, it was stated to the Court that he thought it more manly and straightforward to wait and see whether the Court found him guilty before offering any apology or submission.
8. This is a very serious case and must be met by a suitable sentence not only as a punishment for this particular contempt, N.C but also as a warning to other persons.
Batchelor, J.
9. The article in respect of which this rule was granted, appeared in the English language in the respondent's newspaper, the 'Mahratta.' The article itself proves, and Mr. Baptista has admitted before us, that the respondent is perfectly familiar with English. The only question, therefore, is as to the meaning of the article, read as a whole and construed as it would be construed by the ordinary reader. Upon the best consideration that I can give to the article, I am clear that it constitutes a gross instance of that form of contempt of Court, by which, as it is said, the Court is scandalised. Nor is any serious attempt made to disguise this meaning. After a preparatory paragraph of no special consequence the writer proceeds at once to his thesis, and observes that ''in the first place they (the public) will know what value to attach or what sense to apply to the expression that Mr. Tilak got a fair trial.' Then alter other allusions to the 'unfairness of the trial' the writer promises to speak later of 'the unfairness of the judge.' He keeps his promise in the succeeding paragraphs, which abound in scurrilous references to the 'mockery of a trial,' to the 'affectation of the judge, who is represented as concealing his hostility to the prisoner until the time came to charge the jury when, we are told, he laboured, by a one-sided and adverse treatment of the articles, and by ferreting out hidden words and innuendoes unnoticed by the Advocate General, to make the case for the prosecution more complete than counsel for the Crown had made it. I entirely agree, with that part of Mr. Baptista's address in which he insisted that, upon the conclusion of a trial, the judge is handed over to criticism; but in my opinion, such writing as this is not criticism and is entirely beyond the reach of the argument.I agree, too that the Court should ordinarily be slow to punish for contempt especially, where there is any ground for hope that the common sense of the many will correct the extravagance of an individual; but here I cannot doubt, that the unchecked dissemination of such views as are stated in this article, would tend to create the opinion which the respondent has expressed in his newspaper though he does not maintain it in this Court. For among large numbers of the less instructed people of this country the groundlessness of an opinion is no obstacle to its prevalence; and it is plain that nothing could well be more prejudicial to the administration of justice than the prevalence of such opinions as the respondent has published broad-cast for the acceptance of the readers of his paper. As to the distinction which it was sought to establish, both by the respondent in his article, and by his counsel in argument, between the personal and judicial character of the judge, I am of opinion that no such distinction exists, inasmuch as whatever was done and said by Mr. Justice Davar at the trial, was done and said by him in his judicial capacity alone.
10. Despite the force of these considerations, we hoped up till the end of the hearing that we might be able to extend to the respondent the same clemency which we had shown to similar offenders connected with another journal, but the respondent has put it out of our power to follow this course by the contumacious attitude which he has elected to adopt. In reply to questions and suggestions from the Bench, Mr. Baptista informed us, that he had no instructions to express apology or regret, and that his client desired him to leave the matter to the Court on that footing. That being so, I think that we have no option but to mark our sense of the respondent's misconduct by the imposition of substantial punishment. The only circumstances of mitigation whichI am able to discover are that the trial had concluded when the article was published and as I am prepared to believe, that the respondent was partly misled by his friendship for the prisoner. On the other hand it must be remembered that the respondent is himself a pleader, and could scarcely have failed to realise what mischief would follow from such language as he has employed, language which strikes at the root of all respect for the Court and its authority. It must be understood that this is the ground upon which the Court is acting, and not from any desire to vindicate Mr. Justice Davar from the respondent's misrepresentations. It is in the interests of the due course of justice, and of the authority of this Court thatI conceive it to be our clear duty to take notice of respondent's misconduct. I have said that there has been no expression of regret; and that obliges me to go a little further and notice specifically the position taken by the respondent in this Court. When definitely questioned upon the matter, Mr. Baptista, so far as I was able to understand him, said that his client considered it would be more honest or manly to defer any expression of regret until the Court had pronounced its judgment. The plain English of this seems to be that the respondent will wait till other means of escaping punishment have proved unavailing, before he considers the desirability of expressing regret for his misconduct. That is a course in which I can see some indication of policy; but, its connection with manliness or honesty is certainly remote.
11. For these reasons I agree with the order to be made.
Scott, C.J.
12. N.C. Kelkar, the judgment of the Court is that you pay a fine of Rs. 1,000, and a further sum of Rs. 200 for costs, and that you be imprisoned in the Common Jail for fourteen days, and for such further time as may elapse until the fine and costs have been paid, and until you have made a suitable submission and apology to this Court.