Partly allowed

A. K. Gopalan and Another v. Noordeen

Supreme Court15 Sept 19691969 INSC 241 · [1970] 2 S.C.R. 4101969 INSC 241

Case brief

AI extract

What is this about?

Appeal against Kerala High Court conviction for contempt arising from newspaper statements alleging conspiracy to murder. Majority held lodging of FIR alone did not make court proceedings imminent, acquitting the maker of the statement, but held the editor guilty since proceedings were imminent once the accused was arrested.

What did the court decide?

Appeal of A. K. Gopalan allowed with refund of fine; appeal of P. Govinda Pillai dismissed and his conviction maintained.

What the court decided

A. K. Gopalan and Another versus Noordeen — Contempt of Court | Supreme Court (1970)

¶1

410

¶2

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A. K. GOPALAN AND ANOTHER

•..

J'TOORDEEN

September 15, 1969

[S. M. SIKRI, G. K. MITTER AND.P. JAGANMOHAN REDDY, JJ.]

¶8

¶9

Co111e11ipt of Court's Act (32 of _1952) ss. 3 & 4----Murder-First in/or111ation Re;>ort lodged-Statement charging for niurder 1nadf!-Ar.rest o: accused tl1'·reafter-After arrest stoten1ent published in 1u:wspe.perWhe11 r·on1en101 cu111n1itted. I ·

¶10

A first information report was lodged on Sept. 11, 1967 regarding the loss c!' life of a person when two groups ·of people clashed. ()n Sept, 20, 1967 the first appellant made_ a statement charging one of 1hc grGups being guilty of deliberate conspiracy to comrhit the murder and alleging that a prominent n1embcr of that party hdd giYen instructions for this. The responden1 along \vith his hvo brothers \Vas arrested on Sept . .23, 1967 and on the next day the MagiStrate remanded the accused to police custody. Jn its issue dated Sept. 23. 1967 --a-..ne\'spaper of which the sec1nd appellant was the editor printed the stateffie"ntof the first appellant. Later on an the thre.? ac..:uscd were produced hefore the Magistrate. The respondent filed a petition under ss. 3 and ·4 of the Contempt of Court's Act, l 952 ag:til)St the first appellant, second appellant and the printer of,, the ne\·spapers. The High Court,,found all the persons gµilty of contempt of court.

¶11

Jn uppeal by certificati: obtained by the first and second appellants this Court, HELD :-(Per Full Court) :-The second appellant v.'f\s guilty of contempt of court. as proceedings in ·, court were imminent on Sept. 23, 1967 \Vhen the statement was publisheJ in the ne\vspaper. When the accused had already ,been ar'rested on Septen1ber 23, 1"969 in connection \ith a serious cognizable case proceedings in~ a court were imn1incnt on that <late. The fact that the police 1night. afer investigation, come to the conclusion that the accused was innocent, would not 1nakc the proceedings any the . less imminent. To advance the day of im1ninence to the day when the police makes a report under s. 173 Cr. P.C. would do untold harm to those who may actually '.Je ultimately prosecuted. f418 ll-D (Per Sikri and Jaganmohan Reddy. JJ.) :-The jirst appellant was not guilty of conten1pt of court "as there \vas no evidence that any proceedings in a court were imminent on the date \rhen t.he statement was made. The lodging of a firs_t information report does not by itself establish that proceedings in a court were imminent. It would depend on the facts proved in a particulaT case whether the proceedings are imminent or not. As far as the first appellant was concerned the relevant date was Sept. 20. 1967 when he made the statement and not Sept. 25. 1967 when the newsoaper published the statment. There was no evidence that the first appellant was instrumental in getting this statement published on Sect. 25, 1967. Even the accused were not arrested till September 23. 1967. and ordinarily until ·an accused is atresfed it cannot 'be said that any proceedings in a court are imminent against that person because he may never be arrested or he may be arrested after a 1apse of months or•years. [416 E, F; 417 A-Cl '

A, K, GOPALAN V. NOORDEEN (Sikri, J.)

¶19

411

¶20

A ,\urendrc Mohanty v. State of Orissa Cr. A No. 107 of 1956 dt 23. J -1961, relied on. ·

¶21

!J ould be an undue restriction on the -liberty of free speech to Jay down tnat even before any arrest has been made there should be no coments on the fa~ts of a particular case. In some case no doubt, especiaJly in cases of pubhc scandal regarding companies, it is the duty of a free press to comment on such topic so as to bring 1hem to the attention of B tne public. L417 DJ

¶22

R. v. S«Vundranayagan and Walker, [1968] 3 All E.k. 4?o, refe red to.

¶23

(Per Mitter. J. dissenting) :-A contempt of court may be COP1mitted by a person when he knows or has good reason to believe that crimiruu proceedings are immi11f'nt. The test is .Vhcthef the circumstances in \Vhich the alleged contemnor n1akes the statemL-nt are such that a person of ordinary prudence would be of opinion that criminal proceedings would c SOOn-be launched. Th~ first appellant must have realised on September 20, 1967 that the investigation by the police was sure to lead to cogni~ zance of the offence being taken by a Magistrate and prosecution of some persons for the offence of culpable homicid~. 'fhe :first appellant \Vas not an illiterate person who Cliti!d not be reasonably expected to know. that crimina1 proceedings were bound to be launched in respect of the affair; whether anybody \'ould be .successfully prosecuted is a different matter. D but that would depend upon the evidence which would be brought before the court. But no person \'ith any experi_ence of wordly affairs. much less a person of the standing of the first appellant. a member of Parliament and a leader of a political group could be ignorant of the fact that a murder in broad day light when two group of people clash is sure t:> be investigated into and made the subject of criminal proceedings. His statement suggested that he had some personal enquiries in the n1atter and 1 had come to gather therefrom that certain me1nbers of a particular political E party had entered into a conspiracy to murder and had actually carried their plan into execution. "fhere, can be no doubt that the first appellant's motive and object was not only to further the cause of a particular political party but also to create a11 atmosphere of prejudice against me1nbers of that party and charge some of them with one of the most scriou~ offences known to law, namely. that of conspiracy to murder followed by actual homicide. [422 :ff-4230]

¶24

F Surendra Mohanty v. The Stme of Orissa, Cr. A. No. 107 of 1956 dt. 23-1-1961, distinguished,

¶25

Rex v. Parke, [1903] 2 K.B. 432, R. v. Daily Mirror. [1927] 1 K.B. 845, 851, Ragina v, Odhams Press Ltd. [1957] 1 Q.B. 73 at 81,_ R.v. Sarundaramareyagmli and Walker, [1968] 3 All, E.R. 439 at 441, Tubrama Rao v. Sir James Ta,vlor, !LR. 1939 Mad. 466 at 476, In the mot/er of Tribune, Lahore, I.LR. 25 Lahore 111, and At:oorney-General '" Butter- G worth & Ors. [1962] 3 A.E.R. 326, referred to.

¶26

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 71 of 1968.

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Appeal from the judgmrnt and order dated Janual'}' 15, 1968 of the Kerala High Court in O.P. No. 4394 of 1967 (Contempt).

¶28

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A. S. R. Chari and B. R. G. K. Achar, for the appellants ..

¶30

A. c. Jose, s. K. Mehta, K. L. Mehta and Sona Bhatiani, for the respondent.

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[1970] 2 S.C.R.

¶32

SUPREME COURT REPORTS

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412

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M. R. K. Pillai, for the Advocate-General for the State of Kerala. ·

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The Judgmeint of S. M. SIKRI and P. JAGAl\MOHAN REDDY, JJ. was delivered by SIKRI, J. MITTER, J. gave a dissenting Opinion.

¶37

Sikri, J. fn this appeal by certificate of fitness granted by the Kerala High Court two questions arise : (1) Whether on the day when the appellant, A. K. Gopalan, made the statement complained of or when it WJl,s published in "Deshabhimani" any proceedings in a court could be said to be imminent; and (2) whether this statement amounts to contempt of court.

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The facts in brief are that on September 11, 1967, the ruling parties in Kerala State staged what is called 'Kerala Bandh'. A serious incident took p!s-'e on that day during the course of which one C. P. Karunakaran lost his life at a pJ,ace called Kuttoor .. A First information report was lodged on that very day. On September 12, 1967 th·_ first information report was transferred· to another police station. On September 20, 1967, the appellant, A. K. Gopalan, made the following statement :

¶41

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.. Tearful story

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It was the story of a young man who had to sacrifice his life to the naked goondaism of Congressmen, that was heard from the trembling lips of so many people in Kuttoor. Had this tragedy occurred in the course of a sudden fight one could have understood it: But what I was able to make out was that it was in prosecution of a deliberate conspiracy to commit murder. It appears that a prominent Congress leader of the Cannanore District had given instructions for this the previous day. It was as a result of being oounced upon and stabbed while he was in a peaceful an·d disciplined manner calling for the observance of the Bandh by the closure of shops that Comrade C. P. Karunakaran snffered martyrdom. Comrade Kunhikannan who was with him also suffered serious injuries. The police have seized an unlicensed loaded gun and other weapons from the shop of a congressman at the scene of occurrence.

Murder too was planned.

¶48

Is it not to be inferred from all this that there was a pre-arranged plan to commit murder ? The enlightened people of the locality were determined to press forward to the chosen destination of that class for whom Comrade Karunakaran has sacrificed his life."

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A. K. GOPALAN v. NOORDEEN (Si/ai,. J.}

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413

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,\ On September 23, 1967 K. P. Noordeen was arrested alongwith his two brothers. On September 24, 1967 the Magistrate remanded the accused to police custody. In its issue dated September 25, 1967, the Malayalam Daily newspaper called "Deshabhimani" of which P. Govinda Pillai, the second appellant, was the editor and M. Govindankutty was the printer, printed the ll statement which we have reproduced above. On September 29, 1967, all the three accused were nroduced before the Magistrate. On October 5, 1967, bail was refused by the District Magistrate but was granted by the Sessions Judge. On November 1, 1967, Noordeen filed the petition under ss. 3 and 4 of the Contempt of Court's Act (32 of 195_2) impleading the tilree respondents, A. K. Gopalan, P. Govinda Pillai and M. Govindankutty.

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The High C-mrt held all the three respondents guilty of contempt of court and convicted them accordingly. The High Court impcsed a sentence of fine of Rs. 200/- on the first respondent and of administering an admonition to respondents 2 and 3. The High Court discharged respondents two and three after due admonition. The appellants A. K. GoP.alar: and P. Govinda Pillai D havin2 secured certificate of fitness under Art. !34(1 )( c) the appeal is now before us.

¶56

This Court in Surendra Mohanty v. State of Orissa(1) examined the question whether the publication of a statement at a time when the only step taken was the recording of first informa-· tion report under s. 154, Cr. P.C., could be contempt of court. As the judgment in this case has not been reported we think that we· should reproduce the main portion of the judgment Kapur, J.,. speaking on behalf of the Court, observed_:

¶57

"Before the publication of the comments complained of, only the first information report was filed in which though some persons were mentfoned as being suspected F of being resnonsi)Jle for cau~ng the breach in the bund, there was no definite allegation against any one oi them. In the chargesheet subsequently filed by the police these suspects do not appear to be amongst the persons accused. It was, therefore, argued that by the publication there could not be any tendency or likelihood to interG fere with the due course of justice. The learned Additional Solicitor-General for the SMe submitted on the other han.d that if there was a reasonable probability of a prosecution being launched against any person and such prosecution be merely imminent, the publication would be a contempt of court.

¶58

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· The Contempt of Courts Act confers on the High Courts the pawer to punish for the contempt of inferior

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(1) Criminal Appeal 107 of t966 decided on 23-l-196t

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(1970] 2 SC.R.

¶62

414

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SUPREME COURT REPORTS

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courts. This power is both wide and has been termed arbitrary. The courts must exercise this power with circumspection, carefully and with restraint and only in cases where it is necessary for maintaining the course of justice pure and unaffected. It must be shown that it was ptobable that the publication would substantially interfere with the due course of justice; commitment for contempt is not a matter of course but within the discretion of the court which must be exercised with caution. To constitute contempt it is not necessary to show that as a matter of fact a judge or a jury will be prejudiced by the offending publication but the essence of the offence is conduct calculated to produce an atmosphere of prejudice in the midst of which the proceedings will have to go on and a tendency to interfere with the due course of justice or to prejudice mankind against persons who are on trial or who may be brought to trial. It must be used to preserve citizens' right to have a fair trial of their causes and proceedings in an atmosphere free of all prejudice or prepossession. It will be contempt if there is a publication of any news or comments which have a tendency to or are calculatl'd to or are likely to prejudice the parties or their causes or to interfere with due ccv1rse of justice.

¶65

As to when proceedings begin or when they are imminent for 1he purposes of the offence of contempt of court must depend upon the circumstances of each case, and it is unnecessary in this case to define the exact boundaries within which they are to be ~on .fined.

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The filing of a first information report does not, by itself, establish that proceedings in a court of law are imminent. In order 10 do this various other facts will have to be proved and in each case that question would depend on the facts proved."

Then Kapur J. examined the facts of that case and observed ;

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"In the present case all that happened was that there was a first information report made to the police in which certain suspects were named; they were not arrested; investigation was started and on the date when the offending article was published no judicial proceedings had been taken or were contemplated against the persons named in the first information report. Indeed after investigation the suspects named in that report were not sent up for trial. At the date this offending publication was made there was no proceeding pending in a court of law nor was any such proceeding imminent."

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A. K. GOPALAN V. NOORDEEN (Sikri, J,)

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415

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A On the first point it seems to us clear that on the facts of this case it cannot be said that any proceedings were imminent on Septi:mber 20, 1967 in a court. It is true that the first information report was lodged on September 11, 1967, but this Court has definitely held Jn Surendra Mohanty's cafe(') that lodging of a first information report does not by itself establish that prJceedin~; in a court were imminent. This court further said that it would B depend on the facts proved in ct particular case whether the proceedings are imminent or not. 'fhere are no other facts which tend to establish the imminence of proceedings in a court. Even the accused were not arrested till September 23, 1967, and even if it be relevant there is no proof that arrest was imminent on September 20, 1967. Ordinarily until an accused is arrested it c cannot be said that any proceedings in a court are imminent against that person because he may never be arrested or he may be arrested after a lapse of months or years.

¶80

It would be an undue restriction on the liherty of free speech

¶81

to lay down that even before any arrest has been made there should

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D be no comments on the facts of a particular case. In st.<le cases no doubt, especially in cases of public scandal regardin~ companies, it is the duty of a free press to comment on such topics so as to bring them to the attention of the public. As observed by Salmon, L.J., in R. v. Sayun1ranaragan and Walker(°). "It is in the public interest that this should be done. Indeed, it is

¶83

E sometimes largely because of facts discovered and brought to light by the press that criminals are brought to justice. The private individual is adequately protected by the law of libel sbould defamatory statements published about him be untrue, or if any defamatory comment made about him is unfair". Salmon. L.J., further poin:ed out that "no one should imagine that he is safe from committal for contempt of court if, knowing or having good reason

¶84

F to believe that criminal proceedings are imminent, he chooses to publish matters calculate~ to prejudice a fair trial."

¶85

The learned counsel for the State urges that the crucial date is not September 20, · 1967, when the statement was made, but September 25, 1967, when the newspaper published the statement. G The latter date may b.e relevant in. the case of the other appellant but as far as Gopalan 1s concerned 1t is Sentember 20 1967 which is the relevant date. There is no evidence that he .~as instrumental in getting this statement published on September 25, 1967.

¶86

We are accordingly of the oninion that the appellant Gopalan

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H was w,rongly convicted by the High Court. There is no evidence that any proceedings i,n a court w~re imminent.

¶88

(l) Cr. A. 107of1956 de,ided on 2J..l-196l.

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(2) [1968\1 All E. R. 439.

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(1970] 2 S.C.R.

¶91

SUPREME COURT REPORTS

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416

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¶94

Let us now examine the case of P. Govinda Pillai, the second appellant. The statement was published, ·as we have alreddy said, in the daily newspaper called "Deshabhimani" on September 25, 1967. Were any proceedings in a court imminent on that date? The accused had already been arrested on September 23, 1969, in· a serious cognizable case. Arrest means that the police was prima facie on the right track. The accused must have been produced before a magistrate within 24 hours of the arrest in accordance with Art. 21 of the Constitution, and .the magistrate must have authorised further detention of the accused. In these circumstances it is difficult to say that any proceedings in a court were not imminent on that date. The fact that the police may have after investigation come to the conclusion that the accused was innocent does not make the proceedings any the less imminent. Proceedings in a court may be imminent on one day and yet not be brought the next day. For instance, the accused may in the meantime die or he may be proved innocent. To advance the day of imminence to the day when the police makes a report under s. 173, Cr. P.C would do untold harm to those who may actually be ultimately prosecuted. Not only will it tend to harm the accused but would also tend to subvert the scheme of our criminal law and proce<lure. lt would subvert it because it would tend to encourage public investigation of a crime and a public discussion of the character and antecedents of an accused in detention. The investigation of a cognizable case is eminently the province' of the police, and if a person has information relevant to the commission of a particular crime there is nothing to prevent hil)l from transmitting it to the police. This it seems to us would be the ordinary rule in the case of an investigation of a murder. It may be that in an investigation involving prolonged exami1nation of account books of Companies ancl the ramifications of a conspiracy, proceedings may not be said to be imminent as soon as the accused is arrested. Some of these cases take a Jong t;me to investigate and as observed by this Court, , F it is difficult to lay down any inflexible rule. But as far as an investigation of a charge of murder is concerned once an accused has been arrested proceedings in court should be treated as imminent.

In view of this conclusion we must hold that as far as the appellant P. Govinda Pillai is concerned proceedings in a court were imminent on September 25, 1967.

¶100

¶101

It has not been argued that Govinda Pillai did not know of the arrest of the accused or that he had good reasons to believe that no arrest had been effected by September 25, 1967. It is true that the statement does not mention the name of the accused but it does suggest that the person who committed the deliberate murder was acting as a result of a conspiracy on<l it was not a

¶102

¶103

A, K, GOPALAN V, NOORDEEN (Mitter, J.)

¶104

417

¶105

A case of a sudden fight. It seems to us that the statement would tend to prejudice mankind against the accused.

¶106

In the result we maintain the conviction entered by the High Court against the appellant P. Govinda Pillai.

¶107

Accordingly the appeal of A. K. Gopalan is allowed and B the appeal of P .. GovLnda Pillai dismissed. The fine, if already paid by A. K. Gopalan, shall be refunded.

¶108

Mitter, .J. With respect I agree with the order proposed as regards Govinda Pillai but I am unable to concur in allowing the appeal of the first appellant. The facts are stated sufficiently in the judgment of my learned brother and need not be repeated. c He has held and indeed there can be no doubt that any publication or comment which has a tendency to or os calculated or .likely to prejudice the parties or their causes or with the due course of justice in pending proceedings would constitute a contempt of court. It is also universally accepted that even if proceedings have not actually begun but' are imminent conduct of the kind referred to D above would be punishable. In my view the consensus of authorities both in England and in India is that contempt of court may be committed by any one making il comment or publication of lhe exceptionable type if he knows or has reason t6 believe that proceedings in court th(mgh not actually begun are imminent. There does not appear to be any decision of this Court on the last aspect and it is therefore necessary to make a brief reference E to the authorities.

¶109

It is agreed that there were no proceedings pending in a cocrt when the first appellant made his statement on September 20, 1967 which was actually published in the Malayalam Daily newspaper in its issue dated September 25, 1967. In my view although no criminal proceedings were actually pending in any court on 20th F September, it is not possible to hold that at that time such proceedings were not imminent or that the first appellant had no reasonable cause to believe that they were not imminent.

¶110

The Contempt of Courts Act, 1952 does not purport to define what actually constitutes such contempt. This was done with a purpose as attempts to interfere with the course of justice are of G so many different kinds and may be committed in circumstances so various that the Legislature possibly thought it unwise to define the limits thereof. Courts in India have referred to the manifold aspects of the law of Contempt of court and accepted the principles laid down in English decisions which go back to a date well over a century. Early in the present century in Rex v. Parke(') H one Dongal was brought up before the petty Sessions of Saffron Walden charged with forgery and remanded without any evidence

¶111

(I) [1903] 2 K.B. 432

¶112

[ 1970] 2 S.C.R.

¶113

418

¶114

SUPREME COURT REPORTS

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¶116

being taken. Articles to his disadvantage appeared in a newspaper of which the defendant was the editor. A rule ws issued by '.he High Court to show cause why he should not be committed for contempt of court. A point was taken that the jurisdiction would not be attracted if at the time of the publication of lhe article complained of there were no proceedings actuaily pending in any court but the petty sessions court and that the jurisdiction to punish the publishers of articles of the kind before the court wa confined to cases in which at the moment of publication there was iome cause actually de:iending in the High Court. In rejecting this contention Wills J. observed :

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¶118

"The reason "£.hy the publication of articles like those with which we have to deal is treated as a contempt of c court is because their tendency and sometimes their object is to deprive the court of the power of doing that which is the end for which it exists-namely to ~d minister justice duly, impartially, and with reference solely to the facts judicially brought before it. Their tendency is to reduce the Court which has to try the J) case to impotence, so far as the effectual elimination of prejudice and preposse.'ion is concerned. . . . lf it be once grasped that such is the nature of the offence, what possible difference can it make whether the particular Court which is thus sought to be deprived of its independence, and its power of effecting the great nd for which it is created, be at that n1oment in session or E even actually constituted or not." Daling with the argument that the remedy only existed when there was a muse pendin in the court the Judge said : . in very nearly all the cases which hQ·;e arisen there has been a cause actually begun so that F the expression auite natural under the circumstances, accentuates the fact, not that the case has been begun, but that it is not at an __ end. That is the cardinal consideration. It is possible very effectually to poison the fountain of justice- before it begins to flow. It is not pcs>ible to do so when the stream has ceased." G ln a recent judgment of the Court of Appeal in EnglanJ observations have been made which run counter to the dictum in the last sentence.

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¶120

¶121

The last extract from the judgment of Wills, J. was quoted by Lord Hewart C.J. in R. v. Daily Mirror(') and by Lord Goddard ff C.J. in Regi~a v. Odhams Press Ltd.('). Dealing with the ques0) [1927] I K. B. 845 at 851 (2) [1957]1 Q. B. 73 '' 81.

¶122

A. K. GOPALAN V. NOORDEEN (Mitter,!.}

¶123

419

¶124

A tion whether mens rea was necessary to constitute the offence the: learned Chief Justice said :

¶125

"It is obvious that if a person does not know that pr~c.eedings have begun or are imminent, he cannot by wntmg or speech be said to influence the course of justice or to prejudice a litigant or accused person, but that is B no answer if he publishes that which in fact is calculated to prejudice a fair trial."

¶126

In R. v. Savundaranayagan and Walker(') to be referred. to in detail later the Court of Appeal in England expressed similar views in no unmistakable terms.

¶127

c We may now turn to the decisions of our High Courts. In Tuljarama Rao v. Sir James Taylor(') and-in the matter of "Tribune", Lahore(") opinions were expressed that a: comment on proceedings which were imminent but not yet launched in court. with knowledge of the fact was as much a contempt as a comment of a case actually launched. According to the Lahore High. D Court it was sufficient that the proceedings were imminent to the knowledge of the person charged with contempt.

¶128

It was pointed out in Surendra Mohanty v. The State of Orissa (') that :

¶129

¶130

"As to when proceedings begin or when they are immlnent for the. purposes of the offence of contempt of Court must depend upon the circumstarrces of each case, and it is unnecessary in this case to define the exact boundaries within which they are lo be confined.

¶131

The filing of a First Information Report does not, by itself, establish that proceedings in a court of law are F imminent. In order to do this various other facts wiil have to be proved and in each case that question would depend on the facts proved."

¶132

The facts in Surendra Mohant,v's case(') were that there was a: breach in a bund in a big reservoir between August 12 and 13, 1953 as a result of which some fields were flooded. On August 13, G 1953 a first inforrnation was lodged at a police station stating that it had been cut and the cutting was suspected to have been done by one or more of the persons whose names were therein mentioned. The police thereupon started in-. estigation and on the 24th Sep-· tember under the orders of the Sub-Divisional Magistrate statements of five witnesses were recorded presumably under s. 164 H Criminal Procedure Code. On October 26, 1953 a report called the charge sheet for an offence under s. 430 I.P.C: was received·

¶133

{I) 1!968J 3 All E.R. 439 at 441. (2) l.L.R. 1939 Mad 466 at 476. (3) T.L.R. 25 Lahore 111. (4) C. A. !07 of 1956 decided on 23-1·1961.

¶134

[ 1970] 2 S.C.R.

¶135

SUPREME COURT REPORTS

¶136

420

¶137

:by the Magistrate who took cognizance and summoned the persons accused therein and the proceedings were continued in the court of the Magistrate. Between August 14 and October 26, 1953 two Oriya papers published comments in regard to the inci·dent thus:

¶138

"In the year 1952, a water reservoir had been constructed at Dangarpara in the Titlagarh Sub-Division of the District of Bolangir by the Government at a cost of Rs. 33,000. This has been breached due to heavy rainfall.

¶139

It is heard that 15 days before the breach of thi5 bund, Abhut Sankh, Chintamani Subudhi and Bhagaban Das and others of Lakhana on seeing the condition of the reservoir apprehended a breach and brought it to the notice of the S.D.O. and requested him to open an escap~ for the discharge of the surplus water. But in spite of hearing this, the S.D.O. did not ope,n an escape. When there was excessive accumulation of water. the Bund Was unable to withstand and gave way.

¶140

It is heard that the S.D.O. in order to conceal his own fault is accusing Mangra Najhi of Bana Bahal, Nilamani Mahaktid of Kumanbahal and Satya Ganda, Banemali, Nariha and others of Dangarpara of the offences of cutting the bund and trying to create evidence by assaulting them through the police and by keeoing watch (over the locality).

¶141

If actually the aforesaid persons had reported to the S.D.O. regarding the said bund and the S.D.O. neglected in taking proper steps himself, why he should not be responsible for this."

¶142

This Court held that the order of conviction bv the High Court could not be sustained in view of the facts that 'on the date when 1he offending article was published no judicial proceeding had been taken or were contemplated against the persons named in the first information report. According to the report the breach was not caused through any natural cause but was due to cutting by some persons who were suspected. Indeed, after investigation the suspects named in that repc.t were sent up for trial. On the date when offending publication was made, there was no proceeding pending in a court of law nor was any such proceeding imminent.

¶143

It is difficult to hold on the facts of this case that the first appellant did not know or had no reason to believe that proceedings in court were not imminent when he made the statement on 20th September. It is common knowledge that whenever a man loses

A. "· GQPALAN v. NOORDEEN (Mitter, J.)

¶153

421

¶154

his life through a cause other than natural the police will invariably come to the ·scene, take custody of the dead body and start investigations. Indeed under s. 174 Cr. P.C. even when information is received that a person has died under circumstances raising • reasonable suspicion that some other person has committed an offence, it is the duty of the officer in charge of the police station

¶155

B with4i whose jurisdiction the death occurs to give intimation thereof to •he nearest Magistrate empowered to hold inquest and to pi~ceed to the place where the body of such deceased person is, to'1^{make an investigation and draw up a report.}

¶156

Here a person lost his life in broad day light not by accident

¶157

blfl by stabbing when two groups of people clashed. One of the

¶158

c groups was charged by the statement of the first appellant to be guilty of deliberate conspiracy to commit murder and it was fur-, ther alleged that a prominent member of that party had given instructions for this, the day prior to the violent disturbance. The first appellant was not an illiterate person who could not be reasonably expected to know that criminal proceedings were bound to

¶159

D be launched in respect of the affair : whether anybody would be successfully prosecuted is a different matter, but that would depend upon the evidence which would be brought before the court. But no person with any experience of wordly affairs, much less a person of the standing of the first appellant, a member of Parliament and a leader of a political grou()-{:ould be ignorant of the fac~ that a murder in broad day light when two groups of people

¶160

E clash is sure to be investigated into and made the subject ot criminal proceedings. The statement of the appellant suggests that he had made some pers_onal enquiries in the matter and had come to gather therefrom that certain members of a particular political party had entered into a conspiracy to murder and had actually carried their plan into execution. He had alsq_ charged a leader

¶161

F of a rival party, who was not named, with.having given instructions the previous day. There can be no doubt that the motive and the object was not only to further the cause of a particular political party but also to create an atmosphere of prejudice against mernbers of that party and charge some of them with one of the most serious offences known to law, namely, that of conspiracy to mur-

¶162

G der followed by actual homicide.

¶163

¶164

In the case of R. v. Savundra/1(/yagan and Walker(') the Court of Appeal in England although of opinion that a free press had the right and duty to comment on topics 11f public interest so as to bring them to the attention of the public like the failure of an insurance company in which the moving figure was a m~n with H an unsavoury record who appeared to have used large sums of the company's money for his own purposes and disappeared abroad

¶165

(I) [1968]3 All E.R. 419.

L2Sup. Ci/70-15

[1970}2 $.C.R.

SUPREME COlT• T REPORTS

¶170

422

¶171

at a point of time when there was nothing to suggest that criminal proceedings were even in contemplation, yet took a different view of the television programme depicting an interview with the appellant shortly after his return to England, when according to the Court:

¶172

"It must surely have been obvious to everyone that he was. about to be arrested and tried on charges on gross fraud".

Salmon, L.J. added :

"It must not be supposed that proceedings to commit for contempt of court can be instituted only in respect of matters published after the proceedings have actually begun. No one should imagine that he is safe from committal for contempt of court if, knowing or having good reason to believe that criminal proceedings are imminent, he chooses to publish matters calculated to prejudice a fair trial."

¶177

How jealously courts of law regard the preservation of the purity of the cours!' of justica and the prevention and punishment of any attempt at pollution or preversion thereof as a solemn obligation will appear from a recent decision of the English Court of Appeal in Attorney-General v. Butterworth & others('). The words of Lord Denning, M.R. are worth repeating. He said :

¶178

"I have no hesitation in declaring that the victimisation of a witness is a contempt of court, whether done while the proceedings are pending or after they have finished. Such a contempt can be punished by the C<'«rt itself before which he has given evidence : and so that those who think of doing such things may know where they stand, I would add that, if the witness has been damnified by it, he may well have redress in a civil court for damages."

¶179

In my view, we should hold that a contempt of court may be committed by a person when he knows or has good reason to believe that criminal proceedings are imminent. The test is whether the circumstances in which the alleged contemnor makes the statement are such that a person of ordinary prudence would be of opinion that criminal proceedings would soon be launched. In my way of thinking the first appellant must have realised on September 20, 1967 that th!' investigation by the police was sure to lead to cognizance of the offence being taken by a Magistrate and the prosecution of some persons for t!J_e offence of culpable homicide. His statement itself shows that to his knowledge the police

(I) \962] 3 All E. R. 3~6.

¶187

A. K. GOPALAN V. NOORDEEN (Mitter,!.)

¶188

423

¶189

A were on the track of the guilty and had seized an unlicenced loaded gun and other weapons from the shop of a person belonging to a political party some members whereof were being accused of the crime. I would therefore dismiss the appeal by the first appellant also.

¶190

B ORDER BY COURT In accordance with the opinion of the majority, the appeal of A. K. Gopalan is allowed and the appeal of P. Govinda Pillai is dismissed. The fine, if already paid by A. K. Gopalan, shall b~ refunded.

¶191

Y.P.

A. K. Gopalan and Another v. Noordeen

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A. K. Gopalan and Another v. Noordeen

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