I leave aside the attack on the plaintiff's advocate in this Court, for that in my opinion does not properly speaking, amount to a contempt of Court. No authority has been cited in support of the contention that it does, and I think it undesirable to extend the scope of the definition of a contempt of Court without authority. The insult offered to an advocate not during the trial of a case but after its termination cannot be condemnation of the system of administration of justice, but would amount to a calumny upon an individual. The position of Advocates cannot be that of officers of the Court like Registrars who are appointed by the Court itself. Defamatory statements made against advocates after the termination of a case stand on quite a different footing from insults offered to such advocates while actually conducting cases. I am, therefore, not prepared to hold that the libel-on the plaintiff's advocate in this case amounted to a contempt of the High Court.
2. Both of them appeared to show cause in person. Abdul Hasan is able to speak and to understand the English language; Mohammad Ismail is not and in consequence of this the Court directed that the opening statement, and the passages in the pamphlet complained of, should be read to both respondents in Urdu, although the proceedings were conducted in English. Such questions as the Court thought right to put to both the respondents were interpreted to them in Urdu, in which language their answers were recorded.
3. The matter arose out of a suit which was brought in the Court of the Subordinate Judge of Bareilly, in which the plaintiff set up a certain pedigree, and relied upon certain documents, which were rejected by the trial Court. The Subordinate Judge, Mr. Govind Sarup Mathur, decided the case by a judgment delivered on 6th March 1922, by which he dismissed the plaintiff's case holding that the evidence was false. An appeal was brought from this decision in the High Court (First Appeal No. 247 of 1922) which was decided by the Chief Justice and Mr. Justice Lindsay, who delivered judgment on 21st December 1925, holding that the evidence of the plaintiff in support of his pedigree failed, affirming the judgment of the Subordinate Judge and dismissing the appeal. On 13th May 1926 an application for leave to appeal to the Privy Council made by the plaintiff was dismissed and on the same date the attention of the Bench which dismissed that application was drawn to the pamphlet complained of, which bore date 12th February 1926, and which purported to be printed and published by or on behalf of the Muslim newspaper by the Muslim Press at Moradabad.
4. The respondent Abdul Hasan had been a witness for the plaintiff in the suit, and is related to him. It may be mentioned that the defendants were understood to be persons who might be described as being well off, while the plaintiff, or plaintiffs, were financially not well off. The pamphlet purports to be an account of a dream in which certain scenes were presented to the eye of Jauhar showing the mysterious decision of a case. It was described as: "A mysterious legal drama in dream and its revelation in the Court Supreme." The members of the judicial tribunal were represented as being brought before the Almighty, assisted by His Legal Adviser, to explain their conduct.
5. It is not necessary to do more than to set out one or two of the most offensive passages contained in this somewhat lengthy and fanciful document. After the Subordinate Judge had been summoned and allowed to retire after being severely handled, and accused of corrupt or unjudicial conduct in deciding the case, the Chief Justice was summoned and a copy of his judgment was put up. He was told that he had saddled the complainant-appellant with double fees of the Court and costs, and had paid no attention to their case. He was told that if he had only seen the judgment of the lower Court with a critical eye he would have found there good many materials that were suspicious, doubtful and objectionable, but that he wholly followed the example of the original Court and showed himself to be the pupil of the Subordinate Judge. He was also told that he did not at all use common sense in writing the judgment in appeal.
6. The introduction to the pamphlet professes to show by startling revelations "the rate and market value of Justice and Equity in our Provinces." The reader is informed that only God can look after those who have no money, and that
the poor plaintiff knocks at the door of justice in vain, because it is extremely difficult for him to get justice,
7. In the earlier portion of the main text of the pamphlet the reader is told that when the plaintiffs appealed to the Allahabad High Court the Hon'ble the Chief Justice:
singing the same tune with the lower Court and supporting its doubtful judgment, administers justice in a way the wonderful peculiarity of which itself demands justice from 'Justice' and 'Equity',
8. There can be no doubt about the plain meaning and the scandalous nature of these allegations, suggesting favouritism to wealth, and the infliction of injustice upon poverty, and by the particular Bench which heard the appeal, and by the High Court in its general administration of justice. There is further a distinct suggestion that Mr. Iqbal Ahmad, a distinguished advocate of this Court, had been bribed and did not present the plaintiffs' appeal satisfactorily before the appellate Court. Abdul Hasan himself when asked to explain some of these passages, said that he did intend to convey the impression that the Subordinate Judge had dishonestly decided in favour of the richer party. There can be no question that if either the Subordinate Judge or Mr. Iqbal Ahmad against the high reputation of both of whom nothing can be suggested, had chosen to taken criminal proceedings for defamation against the two respondents, the latter would have been liable to punishment by imprisonment.
9. Abdul Hasan admitted himself to be the author and Mohammad Ismail admitted that he had printed the pamphlet. The latter told us that when his attention was drawn to the pamphlet afterwards, he saw that it was an attack upon the reputation of the High Court and that he mentioned this fact to the author who replied that he would consider the matter. Abdul Hasan, who admitted himself to be the author of the pamphlet and to having ordered 250 copies of it to be lithographed by Mohammad Ismail, protested that he did not mean to suggest maladministration of justice by the High Court, but when asked to explain some passages quoted above which referred to the High Court, answered that he could not give any reasonable explanation, and desired legal assistance. According to the statement of the two respondents, a lithograph copy of the manuscript was brought by Abdul Hasan, who lives in Bareilly, to Mahommad Ismail, who carries on his printing business in Moradabad. Their previous acquaintance was very slight, if any. 250 pamphlets were lithographed, and 220, which had not been folded or made ready for publication, were handed back to the High Court at the hearing. The remaining 30 were accounted for in various ways. Abdul Hasan himself at once circulation some 12 or 13, according to his own statement, to the friends of litigants in Bareilly, but the next day he stopped any further circulation to them declaring that he had found out that there had been a mishap, or what he called a mistake of the pen which seems to mean, although he would not say so, that he realized that he had been guilty of defamation.
10. He was unable to tell us what had occurred to cause him to realize this, which had not occurred when he ordered the document to be lithographed or when he afterwards circulated the copies which he did. He relied upon his previous loyalty to Government and on certain certificates which the possessed, of writings from his pen which had met with approval, and he suggested rather than stated, that he had allowed either his sense of self-importance, or his sympathy with his relations, to get the better of his judgment. We think that this statement of his frame of mind is probably not far wrong, although as an educated person he must have known perfectly well that he was writing a scandalous and defamatory attack upon the administration of justice by the High Court. The printer assured us that he often did not look at the manuscripts which he printed, and that he did not know, and had no particular reason for trying to find out what the pamphlet contained before he printed it, except that it was some account of a dream of a legal drama.
11. There is no question indeed the Privy Council have recognized in a passage to be found in the case reported in In the matter of Sashi Bhushan Sarbadhikary (1899) 29 All 95 that this High Court has jurisdiction to deal with a libellous attack upon the Court of this nature in a summary manner, by fine or imprisonment or both. Abdul Hasan took the objection that the original complainant who brought the matter to the attention of the High Court, namely the defendant in the litigation who was also attacked indirectly by this pamphlet, had no right to complain or to appear. There is nothing in this object on. As a matter of fact, by the direction of the High Court the Government Advocate appeared on behalf of the Local Government to support the complaint but there is no rule of law restricting the manner in which complaints of such defamatory attacks may be brought to the notice of the Court.
12. The jurisdiction of this High Court to punish in a summary manner false and scandalous attacks upon the administration of justice and upon the occupants of the Bench, is exercised on public grounds and is essential for maintaining the confidence of the public in the independence of the judiciary. No Court will allow itself to exercise this jurisdiction merely for the purpose of preventing, or restricting legitimate criticisms upon decisions on questions of principle or upon its methods of conducting public business. There is a wide difference between, on the one hand, such criticisms, even criticisms which although bona fide might by their extravagance, or their ambiguity, encroach upon the border line of what is recognized as legitimate and on the other hand gross and unfounded libels upon the Court. In these matters it is usually, the case that a mere printer is regarded as incurring a smaller measure of responsibility where he is not shown to have understood and joined in a deliberate attack. But in a country in which the mass of the population is illiterate, it is clear that a printer who does not take care to acquaint himself with the nature of the matter which he prints for the purposes of circulation is a source of grave public danger, because to the uneducated and illiterate, matter which appears in print necessarily carries greater weight. They do not as a rule possess the balance of judgment which education confers to be able to distinguish between what may be merely idle and foolish and what is deliberately intended to represent the truth, and as the matter so printed and circulated is necessarily published to them by word of mouth, it is extremely difficult if not impossible for the contradictions which follow to reach into all the corners of the bazar where the original publication has obtained a hearing.
13. We recognize that there is difference between the degree of culpability in the cases of these two respondents and we recognize that in the case of Abdul Hasan he himself reached, after much of the mischief had been done, a stage when he realized that he was doing wrong and that it was time to stop. But it is necessary in the public interest, and in order to prevent scandalous and unwarrantable attacks upon the administration of justice in the High Court to make an example of both the respondents. A mere fine cannot meet the necessities of the case and might in the case of these two respondents mean no personal punishment at all.
14. It is necessary therefore to make an example of both of them by inflicting upon them a term of imprisonment in addition to ordering them to make contribution to the costs incurred by the appearance of the Local Government.
15. It has been pointed out that this libel includes a contempt upon the Court of the Subordinate Judge. On the question of the jurisdiction of the High Court to punish contempts committed against Courts subordinate to itself, I have studied all the cases, particularly the judgment in the case reported in Government of Bengal v. Moti Lal Ghosh AIR 1914 Cal 69, where the question was decided in the negative. This High Court is a Court of record and has general power of superintendence and control over the Courts subordinate to it, and I agree with the view taken in the Bombay case reported in Mohan Das Karamchand Gandhi In re AIR 1920 Bom 175, and in a case decided by three Judges in Madras reported in In the matter of K. Venkata Row (1911) 21 MLJ 832, that the High Courts in India have such power. We have not taken into account this part of the libel complained of in awarding the punishment which we have decided to inflict.
Sulaiman, J.
16. There cannot be the slightest doubt that the pamphlet in question contains a most scurrilous attack on the whole administration of justice in these provinces and in particular on the Subordinate Judge, which is calculated to bring the authority and administration of the law into disrespect and disrepute. The decision of a case is described on the title page as mysterious and the introduction to the pamphlet professes to contain startling revelations and insinuates that justice and equity in these provinces have rate and market value, and that judicial officers who are described as weighmen holding the balance of justice in their hands, can at will by twist of the finger, give short weight and make any side of the scale light or heavy as they like. It is stated that the market of justice is only for moneyed people and only God can look after those who have no money. It is suggested that if a plaintiff who seeks justice, happens to be poor and the aggressive defendant rich, the poor plaintiff has to knock at the door of justice in vain. It is also suggested that a poor man's pleader would not even fully discharge his duty, but being influenced by the wealth of the opposite party would even forsake his client. The body of the document contains defamatory statements against the Subordinate Judge, who tried the case, and insinuates that silver and gold displayed their splendor and that the tampering of a "ruqqa" might even have been done in consultation with him or at a time when the document was kept under lock and key by the Court.
17. The Subordinate Judge, it is suggested had such deep love for the rich defendants that he was disposed to take steps in order to please them and did not care even about the facts. It states that a plan for the dismissal of the plaintiff's claim had already been devised and that as money had power to invert mind, even strong proofs and living objects failed to be worthy of attention. It winds up by saying that the proceedings in his Court disclose a mysterious conspiracy. It is boldly stated that the High Court:
paid no attention to the plaintiff's case and did not see the judgment of the lower Court with a critical eye, but wholly followed the example of the original Court and acted as its pupil and that common sense was not used in writing the judgment.
18. It is further suggested that the High Court became silent on the point because the writer of a particular letter was Khan Bahadur. It also suggests that the plaintiff's vakil in the High Court could not have been a simpleton but might have received a wound from the golden knife of the well-to-do opposite party.
19. I leave aside the attack on the plaintiff's advocate in this Court, for that in my opinion does not properly speaking, amount to a contempt of Court. No authority has been cited in support of the contention that it does, and I think it undesirable to extend the scope of the definition of a contempt of Court without authority. The insult offered to an advocate not during the trial of a case but after its termination cannot be condemnation of the system of administration of justice, but would amount to a calumny upon an individual. The position of Advocates cannot be that of officers of the Court like Registrars who are appointed by the Court itself. Defamatory statements made against advocates after the termination of a case stand on quite a different footing from insults offered to such advocates while actually conducting cases. I am, therefore, not prepared to hold that the libel-on the plaintiff's advocate in this case amounted to a contempt of the High Court.
20. As to the attack on the High Court, it is undoubtedly a contempt though of a contemptible kind, and in spite of the author's assertion before us that he did not mean to cast any aspersions on the High Court Bench, there cannot be the slightest doubt that an insult to the dignity of this Court, couched in satirical language, was deliberately intended, and the High Court along with the whole administration of justice under its supervision, is held out to ridicule for which the author does not now attempt to show that there could be the slightest justification, and which, of course, he is unable to support. That such a contempt of Court can be dealt with summarily is a matter about which there can be no dispute. The pronouncement of their Lordships of the Privy Council in the case of Surendranath Banerji v. Chief Justice and, the Judges of the High Court at Fort William in Bengal (1984) 10 Cal 109 that a High Court has such power is conclusive. Contempt committed out of Court is justs as much punishable as one committed in the presence of a Court. In the matter of Sashi Bhusan Sarbadhikary (1899) 29 All 95.
21. That there was a gross attack on the integrity of the Subordinate Judge is patent even on a cursory perusal of the pamphlet, and that such an attack was intentional is admitted by the writer Abdul Hasan Jauhar.
22. Any conduct that tends to bring the authority of a Court into disrespect or which amounts to an insult offered to the Judge or the dignity of the Court, even though it may be after the termination of a pending case, is undoubtedly a contempt of Court. Contempt is not confined only to cases which directly inter-(sic) with the administration of justice (sic)pending case. In the case of St. James' Evening Post (1742) 2 Atk., 469 at 471, Lord Hardwicke, L.C. distinctly remarked that "one kind of contempt is scandalizing the Court itself." In B. v. Gray (1900) 2 QB 36 Lord Russel of Killowen, C.J., in delivering the judgment of the Court, held that a scurrilous abuse of a Judge in his character of a Judge, that is in reference to the conduct of the Judge in a judicial proceeding, even though the same has terminated, was a contempt of Court punishable in law. Such power exists not on the ground of any exaggerated notion of the dignity of an individual Judge. The power has vested in the Judges not for their personal protection only but for that of the public whose interest it is that Courts of justice should be above reproach and suspicion. If the power to punish contempt of Court were based merely on the advisability of preventing actual interference with the administration of justice, it might have been confined to pending cases only, but if, as is the case, the object be to ensure that the Courts administer justice duly and impartially, they cannot be made helpless to prevent insults to their dignity. As observed by Wills, J., in Rex v. Davies (1905) 1 KB 32 the principle which is the root of and underlies (contempts of Court) will be found to be not the purpose of protecting either the Court as a whole or the individual Judges of the Court from a repetition of them but of protecting the public, and especially those who either voluntarily or by compulsion are subject to its jurisdiction, from the mischief they will incur if the authority of the tribunal be undermined or impaired.... The offended dignity of a particular Court, or of the persons who compose it, is not the subject of punishment....The real offence is the wrong done to the public by weakening the authority and influence of the tribunal which exists for their good alone. When this is the real object it becomes immaterial whether the action, with reference to which the contempt was committed, has or has not terminated.
23. The real question which requires consideration is whether the High Court has jurisdiction to commit for contempt of an inferior Court. Inferior Courts in these provinces not being King's Courts have no jurisdiction to commit for contempts not perpetrated in facie curiae. They cannot punish contempts committed out of Court: Kochappa v. Sachi Devi [1903] 26 Mad 494. If therefore the High Courts also were to have no power to punish such contempts, they would go altogether unpunished unless in particular cases they come within the provisions of the statutory penal law. The High Court has a general superintendence over its civil Courts and watches ever their proceedings not only to prevent their exceeding their jurisdiction or otherwise acting contrary to law, but also to prevent persons from interfering with the course of justice in such Courts. It would seems at first sight that a High Court of justice, being the highest Court in the land yet without power to vindicate the dignity of its subordinate Courts and to protect officers of such Courts, would be an anomaly which could hardly be permitted to exist in a civilized country. Without such protection subordinate Courts would soon lose their hold upon public respect and the maintenance of law and order would be rendered extremely difficult. The question however has become one of some difficulty because of a conflict of opinion that has prevailed in India.
24. I prefer to leave the question of contempt of criminal Courts still open, for that question does not arise in this case. Owing to their respective constitutions there is undoubtedly some difference between the criminal Courts and the civil Courts. The criminal Courts are not directly under the High Court to the same extent as the civil Courts are and she High Court does not possess the same power of control over the officers of the criminal Courts. On the other hand the civil Courts are directly and exclusively under the superintendence and control of the High Courts. Furthermore, the superior criminal Court which existed in these provinces prior to the establishment of this High Court, was the Sadar Nizamat Adalat which was not a Court of record; nor was it even a King's Court but the Company's Court; whereas the Sadar Diwani Adalat was a Court of record and was authorized by statute (21 Geo. III.c 70. Section 21). It is on this ground that I can easily distinguish the case of the Government of Bengal v. Moti Lal Ghosh AIR 1914 Cal 69. In that case the only question which properly arose for decision was as to whether the High Court at Calcutta could punish a contempt of an inferior criminal Court. Jenkins, C.J., at p. 206 thought that as the jurisdiction of the Sadar Diwani Adalat was civil, the powers inherited from that Court were of no assistance to him in the case under consideration. The observations of the other learned Judges affecting contempts of inferior civil Courts were mere obiter dicta as the point did not properly arise for consideration. Similarly the remarks of Shah, J., in his dissentient judgment in the case ofEmperor v. Bal Krishna Govind Kulkarni AIR 1922 Bom 52 must be deemed to relate to contempts of inferior criminal Courts. On the other hand the judgment of Sir Norman Macleod, C.J., in this last mentioned case, upheld the view that the High Court had powers of punishing contempt of even inferior criminal Courts.
25. Confining myself to the question of punishing contempt of an inferior civil Court, I find that there two cases which hold that such jurisdiction exists. In the matter of K. Venkat Rao (1911) 21 MLJ 832 it was held that such power exists. This case was not followed by the learned Judge of the Calcutta High Court on the ground that it was merely based on the authority of Surendranath Banerji v. Chief Justice and the Judges of the High Court at Fort William (1984) 10 Cal 109, which did not support that comprehensive proposition. In re Mohandas Karamchand Gandhi and Mahadeo Haribhai Desai AIR 1920 Bom 175 Martin, J., held that it made no difference that the alleged abuse was of a District Judge and not of a High Court, and that power exists in India, as in England, to protect the Courts of inferior jurisdiction. Curiously enough the case of Legal Remembrancer v. Moti Lal Ghosh AIR 1914 Cal 69 does not seem to have been referred to at all. It therefore becomes necessary to examine the grounds on which such power can be based. The Calcutta High Court has expressed the view that power to punish for contempt of inferior Courts can either be expressly conferred by statute or be inherited from the Courts which were previously in existence and which have been abolished. It has come to the conclusion that no such power has been expressly conferred on the Indian High Court, and further that such power was not possessed by the Courts which have been abolished. It has, therefore, concluded that no such power can exist. I concede at once that there is no statutory provision under which the power to punish for contempt of inferior civil Courts has bean expressly conferred on the High Court. The new Contempt of Courts Act, although passed did not come into force till the 1st of May 1928, long after the publication of the pamphlet. It must also be conceded that such power is not expressly mentioned in the Indian High Courts Act or the Letters Patent under which this High Court was constituted, or the new Government of India Act. When neither the Sadar Diwani Adalat nor the Sadar Nizamat Adalat nor the inferior Courts in these provinces were subordinate to or under the control of the Supreme Court at Calcutta, I would have great difficulty in holding that the Supreme Court had jurisdiction to punish a contempt of an inferior Court of those provinces for even under the common law such jurisdiction is based on the duty to protect subordinate Courts. To have some sort of jurisdiction in an area is one thing and to have control over the Courts existing in that area is quits another.
26. This High Court till the establishment of the Chief Court in Oudh had criminal jurisdiction over British subjects in Oudh but had no control over the Oudh Courts. Court it have been hold that this Could had power to punish for contempt of an inferior Oudh Court? I would also have some difficulty in holding that our Letters Patent together with the Indian High Courts Act has the effect of conferring on this High Court all the Common Law powers vested in the Calcutta High Court including those inherited from the Supreme Court. The preamble merely recites what Her Majesty could by Letters Patent lawfully do under the Indian High Courts Act of 1861. Section 16 of the Act confers all the powers authorized by the Act, and subject to the Letters Patent, makes all the provisions of the Act, as far as circumstances may permit, applicable. And Section 9 confers on a High Court powers vested in any of the Courts "in the same Presidency," which have been abolished. But the Supreme Court at Calcutta was not abolished by the establishment of the Allahabad High Court, but had been abolished five years earlier.
27. One may not, however, be prepared to admit offhand that the Sadar Diwani Adalat, which was a Court of record, and a King's Court authorized by statute did not possess any such inherent power. Although in may be true that every Court of record need not possess such power, for example the Court of Quarter Sessions Mayor's Court and County Courts in England do not possess such powers, it cannot be equally true that a Court of record which is the highest Court in the land, does not also possess such power. But I am prepared to assume for the purposes of this case that the Sadar Diwani Adalat did not possess such inherent jurisdiction. I do not, however, think that the inheritance of such powers is the only true basis. This High Court from its very constitution has certain inherent powers which it can exercise over the districts within its jurisdiction. If the Kumaun division were brought under its regular jurisdiction hereafter, can it be urged with any degree of force that inasmuch as the Court of the Commissioner at Kumaun, which may have to be abolished, does not possess those inherent powers, therefore the High Court also would not possess those inherent powers in Kumaun, though it may possess similar powers in the other districts? It is not the territorial limits of the jurisdiction of a Supreme Court, but rather the very nature of its constitution that is of importance.
28. The question which one has to consider is whether power to protect its inferior Courts is not coeval with its very foundation and institution, and a necessary incident to every High Court of Justice. The circumstance that it is the supreme Court in these provinces would suggest that it must be armed with the power and have imposed on it the duty of preventing brave man attempts to interfere with the administration of justice in the subordinate Courts, for such interference affects the whole administration.
29. Even without any direct authority I would have been inclined to say that such inherent power must necessarily exist, the grounds for this view being (1) that it is not the indignity to individual officers requires to be prevented, but public confidence in the Courts has to be maintained; (2) that inferior Courts themselves possess no such powers and would be entirely helpless if even the superior Court cannot protect them; and (3) that the ordinary remedy under the penal laws of the land are meant for offences against officers in their individual capacity and would, if resorted to, be cumbrous and cause considerable delay. If Courts have to be protected in a way in which swift justice can be dealt out, and that can be only in a summary proceeding of the nature of contempt of Courts.
30. There is, however, abundant authority for the view that inherent jurisdiction in a supreme Court like the High Court must exist. In Rex v. Parka (1903) 2 KB. 432. Wills, J., in delivering the judgment of the Court remarked at p. 442:
This Court (the High Court) exercises a vigilant watch over the proceedings of inferior Courts and successfully prevents them from usurping powers which they do not possess, or otherwise acting contrary to law. It would seem almost a natural corollary that it should possess correlative powers of guarding them against unlawful attacks and interferences with their independence on the part of others. It is said with respect to them that there is remedy by criminal indictment. The latter remedy is unsatisfactory on account of the necessary delay.
31. That eminent Judge, quoting the opinion of Wright, J., with approval, said:
We should hesitate long before casting any more doubt than may already exist upon the capacity of this Court to deal by proceedings for contempt with cases in which attempts are made to pollute the stream of justice, and to interfere with its proper and unfettered administration by Courts which possess no adequate means of protecting themselves in this respect.
32. In Rex v. Davies (1905) 1 KB 32, Wills, J. again remarked:
Courts or the administration of justice exist for the benefit of the people, and for the benefit of the people their independence must be protected from unauthorised interference, and the law provides effective means by which this end can be secured. If it is to be secured at all in the case of the inferior Courts, it can only be secured by the action of this Court, for they have not the power to protect themselves: and if it be true that the King's Bench is in any sense the customs mourn of the kingdom, it must be its function to apply with the necessary adaptations to the altered circumstances of the present day, the same great principle which it has always upheld.
33. And again at p. 443 remarked:
When the attainment of that end required that the misdeeds of others should be corrected as well as the misfeasance of the inferior Courts themselves, it seems to us that it is no departure from principle, but only its legitimate application to a new state of things, if others whose conduct tends to prevent the due performance of their duties by those Courts, have to be corrected as well as the Courts themselves. In fact the danger to the inferior Courts which have no such powers is perhaps greater than it is to superior Courts of having their efficiency impaired by scurrilous publications.
34. I find that these two leading cases were followed in Rex v. Clarke (1910) 103 LT 636, where the High Court punished a contempt of the Coroner's Court.
35. I have been able to find another case where they have been still more recently followed, viz. King v. Editor of the Daily Mail (1921) 2 KB 733. In this last mentioned case, Lord Coleridge, J. at page 745, remarked:
No other Court than the High Court has inherent power to protect itself against contempt by proceedings for attachment or otherwise except where that power is given to it by statute. A Court martial has no inherent power apart from statute to protect itself by such proceedings, but, if this Court can interfere with the proceedings of a Court martial to check irregularities by that Court, it seems to me that it must also be clothed with the inherent jurisdiction to protect a Court martial from contempt calculated or tending to obstruct the administration of justice is that Court, unless the Army Act... ousts the jurisdiction of this Court... I am of opinion on the authority of Rex v. Davies that if the Army Act did not exist, this Court would have inherent jurisdiction in the matter of contempt in the case of a Court martial.
36. Avory, J., at page 752 remarked:
The result of that judgment (Rex v. Davies) is to show that wherever this Court has power to correct an inferior Court, it also has power to protect that Court by punishing those who interfere with the due administration of justice in that Court.
37. And at page 753 the learned Judge remarked that in the Army Act he could find
no provision either express or implied which takes away the right of a party to proceedings before a Court martial who is aggrieved by a contempt of that Court to move this Court to exercise the inherent jurisdiction which it possesses over all inferior Courts.
38. Similarly Salter, J. at, page 754, remarked:
It is of the last importance to assert and maintain the inherent jurisdiction of this Court to protect the administration of justice in all the inferior Courts, unless the Parliament shows a plain intention to restrict that jurisdiction.
39. These leading cases unmistakably show that the power of the High Court in England to deal with the contempt of inferior Courts is based not so much on its historical foundation as on the High Court's inherent jurisdiction. I do not think that I can properly allow my mind to be influenced by the American authorities on such question, as was done by a learned Judge in the Calcutta case.
40. This High Court is in an equal degree the guardian and protector of public justice throughout these provinces and has superintendence over the inferior civil Courts and must therefore have a duty cast upon it to protect such Courts, otherwise their independence and usefulness would be considerably impaired. I have therefore no hesitation in holding that such a power exists. I might add that the new Contempt of Courts Act has been enacted in order to remove doubts which had arisen as to the powers of a High Court. That enactment does not imply that the legislature has recognized that no such power did in fact exist.
Boys, J.
41. The facts of this case are sufficiently set out in the judgment of Walsh, J. There cannot be the shadow of a doubt but that the pamphlet complained of contained many expressions which amount to contempt, both of this Court directly and of a subordinate Court, that of the learned Subordinate Judge.
42. A few words I will add as to the attitude adopted by the opposite party. He appeared before us in person and unrepresented by counsel. He tendered a petition in which he purported to describe how he came to write the pamphlet, how he came to realize the foolishness of his act, and what an excellent character he had previously borne, and states "that the petitioner never entertained any contemptible idea against the judgment of the lower Court." He concluded this document by saying that
the petitioner without showing any cause commits himself entirely to your Lordships mercy and begs for pardon.
43. It is to be noticed that the document does not contain any sort of apology or any expression of sincere regret for his act. It is merely a recognition of the "foolishness" of his act (suggesting merely possibly that he recognized the consequences that were likely to ensue), and asks for pardon.
44. When called upon at the commencement of the proceedings he demanded that orders be passed upon this petition before he said anything further, stating that if the order was unfavourable he would then engage and instruct counsel in his defence. In effect he demanded that a favourable order should be passed or in the alternative the case should be postponed. He had ample time to instruct counsel and such a demand could not possibly be entertained. The later attitude taken up is also to be noted. He declared that he did not adhere to his accusations against the High Court but maintained the truth of his charges against the Subordinate Judge. The question inevitably suggests itself whether this attitude was adopted under a belief that this Court could deal with a contempt directed against a subordinate Court; and whether that belief was not the result of legal advice already taken and given on the basis of the decision in Legal Remembrancer v. Moti Lal Ghosh AIR 1914 Cal 69. The only other question on which I propose to say anything is the jurisdiction of this Court. I have given my most careful consideration to the cases decided by the Courts in India. I will give as briefly as possible my reasons for the conclusion at which I have arrived, that this Court has statutory jurisdiction to punish not only a contempt directed particularly, against this Court but also a contempt directed against a Court subordinate to it, and that in the latter case it is immaterial whether the contempt can or cannot be said to affect the High Court also by reason of the possibility of the proceeding to which the contempt relates coming by process of law before the High Court.
45. That this Court has jurisdiction by summary process to punish a contempt directed against this Court is beyond any need for discussion: see in the matter of Sashi Bhusan Sarbadhikary (1899) 29 All 95. I will therefore only consider our power to deal with the contempt in so far as it related to the inferior Court.
46. I will trace from its inception, as briefly as the subject permits, the history of the jurisdiction in the present matter which I believe to exist in this Court. The Court of King's Bench (I quote from Blackstone 1794) was "the Supreme Court of Common Law", a survival of the Aula Regis, a successor to ''all that was good and salutary of the jurisdiction of the Court of Star Chamber." Included in its extensive powers, there was in particular relation to the offence of contempt of Court, a power to punish
anything in short that demonstrates a gross want of that regard and respect, which when once Courts of Justice are deprived of, their authority (so necessary for the good order of the Kingdom) is entirely lost among the people.
47. Such a contempt "may arise" (not only in the face of the Court but also) "in the absence of the party by speaking or writing contemptuously of the Court or Judges, acting in their judicial capacity.
48. These wide powers to protect the administration of justice had their origin in the facts that
a power, therefore, in the Supreme Courts of Justice to suppress such contempts, by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal if it is a part of the law of the land.
49. I note that in these passages descriptive of the power of the King's Bench as it stood in 1794, i.e. at the very period with which we shall be concerned when considering the power of the Supreme Court at Port William, there is not a hint that the power was limited to the punishment of only such contempt as might be directed against the Superior Court.
50. This brief notice of the origin and scope of the powers of the King's Bench is sufficient and necessary because it is the powers of this Court by name that we shall later find to have been conferred on the Supreme Court at Fort William. The wide scope of the powers of the King's Bench Division, the successor of the Court of King's Bench, are illustrated in Rex v. Davies (1905) 1 KB 32. A rule for a writ of attachment for contempt of Court was issued against a newspaper for publishing a number of statements calculated to give an exceedingly unfavourable impression of a prisoner who was at the time being brought before Justices on a charge of abandoning a child, upon which charge she might be committed to quarter sessions (a subordinate Court); but on a charge of murder being added the prisoner was actually committed to the Assizes (a branch of the High Court). It was contended for the opposite party that the High Court had no jurisdiction as the publication was not necessarily a contempt of the High Court and its jurisdiction did not extend to contempts of inferior tribunals: see page 33. The point was, therefore, definitely and clearly raised. It was held that the fact that at the time of the publication it was uncertain whether the case would reach the Assizes or not made no difference that such articles are "a contempt of any Court which very well may try the case", e.g., the Assizes Court
but in fact does not do so, as well as of the Court which actually tries it * * * * It matters not whether the uncertainty at the time the article was published extended only to the forum to which the case should be sent, or to question whether a committal would take place at all or both (page 65).
51. This brought the case within the rule that the Superior Court could punish for a contempt of an inferior Court if there was merely a possibility that the case might come later before the superior Court. Mr. Justice Wills, however, then proceeded (page 37) to make it quite clear that even if the case had definitely remained in a subordinate Court the King's Bench Division would have power to deal with the contempt and he further declared the principles upon which it had such power. It is this portion of the judgment with which we are more immediately concerned. Mr. Justice Wills held that even assuming that a committal had taken place to quarter sessions, that is, to the subordinate Court, the present King's Bench Division inherits among other powers all the powers of the King's Bench (p. 37); that the King's Bench had the widest powers of superintendence and control of all inferior Courts (page 38;) and was "in a special manner the guardian and protector of public justice" (page 38); that the object of punishing contempts is to protect the public from the deference and respect paid to a tribunal from an opinion of its justice and integrity being undermined; to prevent undue interference with the administration of justice and that this principle is equally applicable to Courts of inferior jurisdiction (page 41). The King's Bench Division can therefore not only administer correction to inferior Courts but can afford them protection (pages 43 and 47).
52. A careful perusal of this latter portion of the judgment discloses no hint that Mr. Justice Wills considered that the power of the King's Bench Division was limited to punishing a contempt of the High Court through an inferior Court, that is, that he was regarding the offence against the inferior Court as in effect an offence against the superior Court. The superior Court was held to have power to punish directly and as such an offence committed outside the Court in relation to proceedings affecting an inferior Court and not; on the ground that there had been an offence against any particular Court but as an act which was prejudicial to the rights of the public to an unhampered administration of justice.
53. In Legal Remembrancer v. Motilal Ghose AIR 1914 Cal 69, to which I shall refer again, his Lordship the Chief Justice doubted whether the role of the King's Bench as "customs mourn" could be attributed to the Supreme Court at Port William or to the High Court. I am unable to appreciate this doubt. If the jurisdiction exercised by the King's Bench was a common law jurisdiction, and that common law jurisdiction was conferred on the Supreme Court at Fort William, it appears to me immaterial whether that common law jurisdiction was gradually acquired by the King's Bench in its capacity as customs mourn or whether it was called customs mourn because it had acquired those common law powers. For the purposes of this case before us my conclusion from Rex v. Davies (1905) 1 KB 32 is that it was definitely held in that case that the King's Bench and its successor the King's Bench Division have and always have had common law jurisdiction to punish an offence against the administration of justice whether the contempt be in relation to proceedings in the Supreme Court or in relation to proceedings in an inferior Court, and in the later case regardless of whether these proceedings may not eventually in some way come before the Supreme Court.
54. The next step was the making applicable of this English common law to the Courts in the Presidency Town of Fort William. The common law was so made applicable at least as early as the Charter of 1726. It was more specifically made applicable to the Supreme Court at Fort William by its Charter when that Court was constituted on March the 26th 1774: compare Clauses 1, 4 and 21 of that Charter. It is unnecessary to elaborate in greater detail the proposition that the Supreme Court was given jurisdiction to enforce the common law for that proposition is nowhere seriously challenged. Serious difference of opinion has only arisen in regard to (a) what was the extent of the common law jurisdiction of the King's Bench; (b) what is the effect of the inheritance by the High Court of the common law jurisdiction conferred upon the Supreme Court.
55. With the first question I have already dealt. It remains to consider the second question. The Supreme Court having power to administer common law, had, as indicated by Rex v. Davies (1905) 1 KB 32, power to deal with not only a contempt directly affecting itself, but a contempt affecting proceedings in any of the Courts subject to its control, the Courts within the limits of the Presidency Town of Fort William. Clause 21 of the Charter declared that
all and every of the said Courts and Magistrates shall be subject to the order and control of the said Supreme Court of Judicature, at Fort William in Bengal, in such sort, manner and form as the inferior Courts and Magistrates of and in that part of Great Britain called England are by law, subject to the order and control of our Court of King's Bench.
56. How the powers of the Supreme Court came to be conferred on the High Court, and to what extent, requires to be considered carefully, for the matter is one (in one) in regard to which a deeply versed student, Mr. Morley, said in 1858:
It would be a difficult task to define exactly the powers and jurisdictions of Her Majesty's Supreme Courts in India given by the Statutes and Charters.
57. By 24 and 25 Vict. C. 104, Clause 1, it was declared that it shall be lawful for Her Majesty by Letters Patent to establish a High Court of Judicature at Fort William for the Bengal Division of the Presidency of Fort William and at Madras and Bombay for those presidencies.
58. By Clause 8 the Supreme Courts and the Courts of Sadder Diwani Adalat and Sadder Nizamat at Calcutta and the corresponding Courts at Madras and Bombay were to be abolished as the High Courts came into being by Letters Patent. By Clause 9 the Presidency High Courts, as soon as established, were to have two classes of jurisdiction: (a) all such jurisdiction as might be specifically granted by their Letters Patent, subject to such directions and limitations as might be prescribed by the Letters Patent as to the exercise of original civil and criminal jurisdiction beyond the limits of the Presidency Town, and further (b) all the jurisdiction of the Courts abolished, i.e., of the Supreme Courts and the Sadder Adalats "save as by Letters Patent may be otherwise directed" and "subject to the legislative powers of the Governor-General of India in Council."
59. The reason of this latter portion of Clause 9 is clearly to avoid depriving the High Court by inadvertent omission from its Letters Patent of any powers of the Court that were disappearing which it was desirable should be preserved; for as I have noted above, nobody at this time could catalogue exactly all the powers of the Supreme Court. The High Court at, e.g. Calcutta, acquired, there-fore, by the simple fact of its creation not only the powers specifically conferred by its Letters Patent but further also all the powers of the Supreme Court except in so far as any of these powers might be specifically taken away by the Letters Patent or by legislation.
60. I have deemed it necessary to state this thus precisely; for there has often been a misconception that the powers of the High Courts are to be found in and only in their Letters Patent. That is not so. By the very act of their coming into existence they receive by virtue of the Statute the powers of the old Courts subject to certain limitations. There are no limitations either in the Letters Patent of e.g. the Calcutta Court, or in legislation affecting the old Supreme Court powers to deal with contempt. The High Court at Calcutta has therefore, had conferred on it those powers in full. It follows that the High Court of Calcutta has power to deal with contempts affecting the administration of justice whether those contempts be committed in regard to proceedings in the High Court or in a Court subordinate to the High Court and whether in the latter case the proceedings might or might not eventually come before the High Court.
61. The only suggested difficulty in accepting this, to my mind, clear chain of reasoning, is to be found in the judgment of their Lordships of the Calcutta High Court in Legal Remembrancer v. Moti Lal Ghose AIR 1914 Cal 69. In giving my most careful consideration to the judgment, the principal judgment in that case of his Lordship the Chief Justice, it became apparent that the Chief Justice held that the High Court had only succeeded to an authority locally limited by the boundaries of the Presidency Town of Fort William within which the Supreme Court exercised jurisdiction. This is, however, with the greatest respect for their Lordships, in my opinion, a mistaken view of the extent of the jurisdiction conferred on the Calcutta High Court. That which the High Court had conferred upon it was not the jurisdiction of the Supreme Court over particular Courts, A, B, C, and D, and their successors situated within a particular area, but the jurisdiction of the Supreme Courts "over all Courts subject to its control." Thus regarded the High Court had conferred upon it jurisdiction not only as regards inferior Courts within the limits of the Presidency Town of Fort "William, but jurisdiction in regard to "all Courts subordinate to its own control." This being the aspect in which the matter presented itself to me on a first careful perusal of this judgment in Legal Remembrancer v. Motilal Ghose AIR 1914 Cal 69.
62. I think it unnecessary to labour the point further for on a subsequent perusal of the judgment of his Lordship the Chief Justice, Sir Norman Macleod, in. Emperor v. Balkrishna AIR 1922 Bom 52, I found the same view to have been taken and admirably expressed by him at pp. 619 and 620 of the judgment, It is important, then, to appreciate that the powers conferred on the High Court by the last part of Clause 9 were not powers limited by former local metes and bounds but powers of the same nature as those previously exercised and to be exercised within the new local jurisdiction.
63. I shall note in connexion with the next point that in fact the jurisdiction of the Supreme Court was not confined to the local limits of Fort William. Such being the power of one of the Presidency High Courts, that at Calcutta, which I have taken only by way of exemplar, I have only now to consider the hearing of this finding on the powers of High Courts other than Presidency, including more particularly Allahabad. An instance of the inaccurate drafting of his Statute 24 and 25 Vict. C. 104. is apparent in Clause 9 which we have been considering. It was clearly intended primarily as it stood by itself, apart from later sections to apply to the High Courts at Fort William. Madras and Bombay, and yet it begins "each of the High Courts to be established under this Act" which includes this Court which is also established under this Act. The clause particularly referring to this High Court is Clause 16 which provided that it shall be lawful for Her Majesty by Letters Patent to establish a High Court for any territory not included within the limits of the local jurisdiction of another High Court.
64. In the first place, such High Court was to have so much as might be conferred by its Letters Patent of that jurisdiction which under the Statute might be conferred on or will become vested in a Presidency Court. This gave powers to confer by Letters Patent exactly as was conferred by Letters Patent on the Fort William Court some of the powers of the nature formerly exercised by the Supreme Court. It was here again of course appreciated, as in the case of the Fort William Court, that there might be powers omitted by inadvertence which it was desirable that the new Court should have whether those were powers conferred by the Statute on the Presidency High Courts or powers formerly exercised by Courts having jurisdiction over the territory of the new High Court.
65. A further provision was, therefore, added to Clause 16 that, subject to any prohibition in the Letters Patent, all the provisions of the Statute having reference to any Presidency High Court shall, as far as circumstances may permit, be applicable to the High Court which is being created. The direction as to the applicability of all the provisions of the Statute includes the application of Clause 9. There is no apparent reason why Clause 9 should not be included so far as circumstances permit. The fact that the Letters Patent of the new High Court may specifically confer not only any or all of the powers conferred on a Presidency High Court under the first part of Clause 9, but also any or all of the powers vested in a Presidency High Court by the second part of Clause 3, is no reason for holding that Clause 9 does not apply to the new High Court so far as circumstances shall permit and subject to any specific direction to the contrary in the Letters Patent, for exactly the same consideration applies to Presidency High Courts whose Letters Patents may and do confer with modifications portions of the jurisdiction exercised by the Supreme Courts.
66. The first part of Clause 9 cannot of course apply, for there is special provision for the Letters Patent of the new Court in Clause 16, But there is no reason why the second part of Clause 9 should not apply and every reason why it should. It is only by its application that the jurisdiction of those Courts which would otherwise be lost by inadvertence is saved. Nor can it be contended that the enactment that all the provisions of the Act having reference to a Presidency High Court shall, as far as circumstances may permit, be applicable to the new High Court created under Clause 16 is satisfied so far as the latter part of Clause 9 is concerned by holding that to the new High Courts are saved only the powers of the Sadder Adalats and supporting such contention by the assertion sometimes made that the Supreme Court had nothing to do with the Subordinate Government or Sub-Presidency of Agra. Such an assertion is wholly unfounded. When referring above to the argument of the learned Chief Justice of the High Court at Calcutta, and for the purposes of that argument. I was content to treat the matter as if the jurisdiction of the Supreme Court was limited to the boundaries of Fort William. But in fact its jurisdiction was much wider. Even in 1774 that was so. In 1853 the Royal Commission appointed to consider the reform of the Judicial Establishments of India, when setting out in an appendix to their First Report the jurisdiction of the Supreme Courts, after stating the more strictly local jurisdiction of the Court at Fort William, continued;
2. In like manner the Court exercises all its jurisdiction over all British born subjects, that is, persons who have been born within the British islands and their descendants, who are resident in any of the provinces which are comprehended within the Presidency of Bengal or the subordinate Government of Agra,
3. All persons resident at any places within the said provinces who have a dwelling house and servants in Calcutta or a place of business there where they carry on any trade, through their agents or servants, are held to be constructively inhabitants of Calcutta for the purpose of liability to the common law and equity jurisdictions of the Court.
6. All servants of the Company or of any British subject are liable to the civil jurisdiction and all such servants who commit any crime or misdemeanour of oppression, are liable to the criminal jurisdiction of the Court, And as to Madras and Bombay, the Supreme Courts have generally the same powers, and their jurisdictions are generally the same within the settlements of Madras and Bombay, as those of the Supreme Court of Judicature at Port William within the territories attached to the Presidency of Bengal and Sub-Presidency of Agra.
67. The Sub Presidency of Agra was, therefore, most intimately concerned in the preservation to the High Court for the North-Western Provinces, as the territory of Agra was latter called, of the powers of the Supreme Court except where for special reasons such powers were wholly taken away or modified and such preservation by Clause 16 was in no sense surplusage.
68. The fact that the Supreme Court was abolished in 1361 and this Court was not created till 1865 is of course no reason for holding that it cannot have had conferred on it any powers similar to those exercised by the Supreme Court. Not uncommonly, Presidency High Courts, because they came into being simultaneously with the disappearance of the Supreme Courts, are spoken of loosely as having inherited powers of the Supreme Courts, but in precise language there was no question of inheritance at all, the powers were expressly conferred by Statute, And the powers formerly exercised by a body that ceased to exist fifty years before could just as easily be conferred by Statute as the powers exercised by a moribund body. Nor does the question whether any body or nobody was exercising those powers in the interval create any difficulty. They could equally easily in either case be conferred by Statute.
69. The whole scheme of the Statute as evidenced by Clause 16 indicates an intention to assimilate the new High Courts to the Presidency High Courts except in certain particulars to be set out in the Letters Patent, and this is how the clause was understood by the framers of the Letters Patent shortly after the Statute became law, for they recite the statute as declaring that
all the provisions of the said recited Act relative to High Courts * * * shall as far as circumstances may permit be applicable to any new High Court.
70. There is no direction to the contrary in the Letters Patent; nor is it apparent that there is "any circumstance which does not permit" of the new High Court created by virtue of Cl, 16 exercising throughout its particular territory the power to attach for contempt which was possessed by the Supreme Court.
71. It follows that this Court at Allahabad has the same common law summary jurisdiction to punish contempt as I have held to be possessed by the Calcutta. Court. I therefore hold
(1) that the King's Bench had by virtue of the common law summary jurisdiction to punish as for contempt all offences against the administration of justice whether or not the offence was committed in the face of the Court or outside the Court and whether the Court was sitting or not sitting; and whether concerning the King's Bench directly or in relation to proceedings concerning an inferior Court and whether in the latter case those proceedings might or might not in some way come at some stage before the King's Bench;
(2) that the Supreme Court had conferred on it by the Statute and the Charter creating it the above named powers of the King's Bench;
(3) that the Calcutta High Court by virtue of the statute and the Charter creating it obtained similar powers note limited to the area within the territorial jurisdiction of the Supreme Court but in relation to all the Courts subject to the control of the High Court;
(4) that this Court at Allahabad had conferred on it by the Statute and the. Letters Patent creating it, similar powers to those conferred on the High Court of Calcutta.
(5) that this Court is, as is the King's Bench Division as successor to the King's Bench, and, I may add as I sea no reason to the contrary, every other High Courts in this country "in a special manner the, guardian and protector of public justice, and that it has power to deal with all contempts directed against the administration of justice whether those contempts are committed in face of the Court or outside it and independently of whether the particular Court is sitting or not sitting; and whether those contempts relate to proceedings directly concerning itself or whether they relate to proceedings concerning an inferior Court, and in the latter case whether those proceedings might or might not at some stage come before this Court.
72. In conclusion I would add that, if there be in fact any doubt as to the correctness of this view, I should further hold that this Court has such power as part of its inherent jurisdiction, accepting the proposition enunciated by Black stone quoted in an earlier portion of this judgment, that such a power in a Supreme Court of Justice results from the first principles of judicial establishments and must be an inseparable attendant upon every superior tribunal. "Laws, without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory." The passages I have quoted are in direct relation, not only to the Superior Court's power to deal with contempt; against itself but in relation to the Superior Court's control of the administration of justice by the Courts subordinate to it.
73. This would have been sufficient to dispose by itself of the question of our powers in the particular case, but there is also raised the question of the statutory powers of this Court and in that aspect the power in this particular case is only a part of the much larger question of the Court's general jurisdiction.
74. I agree to the order prop
Allahabad High Court
Hadi Husain And Ors. vs Nasir Uddin Haider And Anr. on 31 May, 1926
Equivalent citations: AIR 1926 All 623, 97 Ind Cas 108
1. In pursuance of an order made by a Bench of this Court on 14th May 1926, Abdul Hasan Jauhar and Mohammad Ismail appeared before us, a Bench constituted by the Hon'ble the Chief Justice, to show cause why either, or both of them, should not be committed to prison for contempt of Court, for that they wrote and caused to be published a pamphlet containing scandalous and defamatory matter concerning a Bench of this Court and the administration of justice in the High Court of these provinces.2. Both of them appeared to show cause in person. Abdul Hasan is able to speak and to understand the English language; Mohammad Ismail is not and in consequence of this the Court directed that the opening statement, and the passages in the pamphlet complained of, should be read to both respondents in Urdu, although the proceedings were conducted in English. Such questions as the Court thought right to put to both the respondents were interpreted to them in Urdu, in which language their answers were recorded.
3. The matter arose out of a suit which was brought in the Court of the Subordinate Judge of Bareilly, in which the plaintiff set up a certain pedigree, and relied upon certain documents, which were rejected by the trial Court. The Subordinate Judge, Mr. Govind Sarup Mathur, decided the case by a judgment delivered on 6th March 1922, by which he dismissed the plaintiff's case holding that the evidence was false. An appeal was brought from this decision in the High Court (First Appeal No. 247 of 1922) which was decided by the Chief Justice and Mr. Justice Lindsay, who delivered judgment on 21st December 1925, holding that the evidence of the plaintiff in support of his pedigree failed, affirming the judgment of the Subordinate Judge and dismissing the appeal. On 13th May 1926 an application for leave to appeal to the Privy Council made by the plaintiff was dismissed and on the same date the attention of the Bench which dismissed that application was drawn to the pamphlet complained of, which bore date 12th February 1926, and which purported to be printed and published by or on behalf of the Muslim newspaper by the Muslim Press at Moradabad.
4. The respondent Abdul Hasan had been a witness for the plaintiff in the suit, and is related to him. It may be mentioned that the defendants were understood to be persons who might be described as being well off, while the plaintiff, or plaintiffs, were financially not well off. The pamphlet purports to be an account of a dream in which certain scenes were presented to the eye of Jauhar showing the mysterious decision of a case. It was described as: "A mysterious legal drama in dream and its revelation in the Court Supreme." The members of the judicial tribunal were represented as being brought before the Almighty, assisted by His Legal Adviser, to explain their conduct.
5. It is not necessary to do more than to set out one or two of the most offensive passages contained in this somewhat lengthy and fanciful document. After the Subordinate Judge had been summoned and allowed to retire after being severely handled, and accused of corrupt or unjudicial conduct in deciding the case, the Chief Justice was summoned and a copy of his judgment was put up. He was told that he had saddled the complainant-appellant with double fees of the Court and costs, and had paid no attention to their case. He was told that if he had only seen the judgment of the lower Court with a critical eye he would have found there good many materials that were suspicious, doubtful and objectionable, but that he wholly followed the example of the original Court and showed himself to be the pupil of the Subordinate Judge. He was also told that he did not at all use common sense in writing the judgment in appeal.
6. The introduction to the pamphlet professes to show by startling revelations "the rate and market value of Justice and Equity in our Provinces." The reader is informed that only God can look after those who have no money, and that
the poor plaintiff knocks at the door of justice in vain, because it is extremely difficult for him to get justice,
7. In the earlier portion of the main text of the pamphlet the reader is told that when the plaintiffs appealed to the Allahabad High Court the Hon'ble the Chief Justice:
singing the same tune with the lower Court and supporting its doubtful judgment, administers justice in a way the wonderful peculiarity of which itself demands justice from 'Justice' and 'Equity',
8. There can be no doubt about the plain meaning and the scandalous nature of these allegations, suggesting favouritism to wealth, and the infliction of injustice upon poverty, and by the particular Bench which heard the appeal, and by the High Court in its general administration of justice. There is further a distinct suggestion that Mr. Iqbal Ahmad, a distinguished advocate of this Court, had been bribed and did not present the plaintiffs' appeal satisfactorily before the appellate Court. Abdul Hasan himself when asked to explain some of these passages, said that he did intend to convey the impression that the Subordinate Judge had dishonestly decided in favour of the richer party. There can be no question that if either the Subordinate Judge or Mr. Iqbal Ahmad against the high reputation of both of whom nothing can be suggested, had chosen to taken criminal proceedings for defamation against the two respondents, the latter would have been liable to punishment by imprisonment.
9. Abdul Hasan admitted himself to be the author and Mohammad Ismail admitted that he had printed the pamphlet. The latter told us that when his attention was drawn to the pamphlet afterwards, he saw that it was an attack upon the reputation of the High Court and that he mentioned this fact to the author who replied that he would consider the matter. Abdul Hasan, who admitted himself to be the author of the pamphlet and to having ordered 250 copies of it to be lithographed by Mohammad Ismail, protested that he did not mean to suggest maladministration of justice by the High Court, but when asked to explain some passages quoted above which referred to the High Court, answered that he could not give any reasonable explanation, and desired legal assistance. According to the statement of the two respondents, a lithograph copy of the manuscript was brought by Abdul Hasan, who lives in Bareilly, to Mahommad Ismail, who carries on his printing business in Moradabad. Their previous acquaintance was very slight, if any. 250 pamphlets were lithographed, and 220, which had not been folded or made ready for publication, were handed back to the High Court at the hearing. The remaining 30 were accounted for in various ways. Abdul Hasan himself at once circulation some 12 or 13, according to his own statement, to the friends of litigants in Bareilly, but the next day he stopped any further circulation to them declaring that he had found out that there had been a mishap, or what he called a mistake of the pen which seems to mean, although he would not say so, that he realized that he had been guilty of defamation.
10. He was unable to tell us what had occurred to cause him to realize this, which had not occurred when he ordered the document to be lithographed or when he afterwards circulated the copies which he did. He relied upon his previous loyalty to Government and on certain certificates which the possessed, of writings from his pen which had met with approval, and he suggested rather than stated, that he had allowed either his sense of self-importance, or his sympathy with his relations, to get the better of his judgment. We think that this statement of his frame of mind is probably not far wrong, although as an educated person he must have known perfectly well that he was writing a scandalous and defamatory attack upon the administration of justice by the High Court. The printer assured us that he often did not look at the manuscripts which he printed, and that he did not know, and had no particular reason for trying to find out what the pamphlet contained before he printed it, except that it was some account of a dream of a legal drama.
11. There is no question indeed the Privy Council have recognized in a passage to be found in the case reported in In the matter of Sashi Bhushan Sarbadhikary (1899) 29 All 95 that this High Court has jurisdiction to deal with a libellous attack upon the Court of this nature in a summary manner, by fine or imprisonment or both. Abdul Hasan took the objection that the original complainant who brought the matter to the attention of the High Court, namely the defendant in the litigation who was also attacked indirectly by this pamphlet, had no right to complain or to appear. There is nothing in this object on. As a matter of fact, by the direction of the High Court the Government Advocate appeared on behalf of the Local Government to support the complaint but there is no rule of law restricting the manner in which complaints of such defamatory attacks may be brought to the notice of the Court.
12. The jurisdiction of this High Court to punish in a summary manner false and scandalous attacks upon the administration of justice and upon the occupants of the Bench, is exercised on public grounds and is essential for maintaining the confidence of the public in the independence of the judiciary. No Court will allow itself to exercise this jurisdiction merely for the purpose of preventing, or restricting legitimate criticisms upon decisions on questions of principle or upon its methods of conducting public business. There is a wide difference between, on the one hand, such criticisms, even criticisms which although bona fide might by their extravagance, or their ambiguity, encroach upon the border line of what is recognized as legitimate and on the other hand gross and unfounded libels upon the Court. In these matters it is usually, the case that a mere printer is regarded as incurring a smaller measure of responsibility where he is not shown to have understood and joined in a deliberate attack. But in a country in which the mass of the population is illiterate, it is clear that a printer who does not take care to acquaint himself with the nature of the matter which he prints for the purposes of circulation is a source of grave public danger, because to the uneducated and illiterate, matter which appears in print necessarily carries greater weight. They do not as a rule possess the balance of judgment which education confers to be able to distinguish between what may be merely idle and foolish and what is deliberately intended to represent the truth, and as the matter so printed and circulated is necessarily published to them by word of mouth, it is extremely difficult if not impossible for the contradictions which follow to reach into all the corners of the bazar where the original publication has obtained a hearing.
13. We recognize that there is difference between the degree of culpability in the cases of these two respondents and we recognize that in the case of Abdul Hasan he himself reached, after much of the mischief had been done, a stage when he realized that he was doing wrong and that it was time to stop. But it is necessary in the public interest, and in order to prevent scandalous and unwarrantable attacks upon the administration of justice in the High Court to make an example of both the respondents. A mere fine cannot meet the necessities of the case and might in the case of these two respondents mean no personal punishment at all.
14. It is necessary therefore to make an example of both of them by inflicting upon them a term of imprisonment in addition to ordering them to make contribution to the costs incurred by the appearance of the Local Government.
15. It has been pointed out that this libel includes a contempt upon the Court of the Subordinate Judge. On the question of the jurisdiction of the High Court to punish contempts committed against Courts subordinate to itself, I have studied all the cases, particularly the judgment in the case reported in Government of Bengal v. Moti Lal Ghosh AIR 1914 Cal 69, where the question was decided in the negative. This High Court is a Court of record and has general power of superintendence and control over the Courts subordinate to it, and I agree with the view taken in the Bombay case reported in Mohan Das Karamchand Gandhi In re AIR 1920 Bom 175, and in a case decided by three Judges in Madras reported in In the matter of K. Venkata Row (1911) 21 MLJ 832, that the High Courts in India have such power. We have not taken into account this part of the libel complained of in awarding the punishment which we have decided to inflict.
Sulaiman, J.
16. There cannot be the slightest doubt that the pamphlet in question contains a most scurrilous attack on the whole administration of justice in these provinces and in particular on the Subordinate Judge, which is calculated to bring the authority and administration of the law into disrespect and disrepute. The decision of a case is described on the title page as mysterious and the introduction to the pamphlet professes to contain startling revelations and insinuates that justice and equity in these provinces have rate and market value, and that judicial officers who are described as weighmen holding the balance of justice in their hands, can at will by twist of the finger, give short weight and make any side of the scale light or heavy as they like. It is stated that the market of justice is only for moneyed people and only God can look after those who have no money. It is suggested that if a plaintiff who seeks justice, happens to be poor and the aggressive defendant rich, the poor plaintiff has to knock at the door of justice in vain. It is also suggested that a poor man's pleader would not even fully discharge his duty, but being influenced by the wealth of the opposite party would even forsake his client. The body of the document contains defamatory statements against the Subordinate Judge, who tried the case, and insinuates that silver and gold displayed their splendor and that the tampering of a "ruqqa" might even have been done in consultation with him or at a time when the document was kept under lock and key by the Court.
17. The Subordinate Judge, it is suggested had such deep love for the rich defendants that he was disposed to take steps in order to please them and did not care even about the facts. It states that a plan for the dismissal of the plaintiff's claim had already been devised and that as money had power to invert mind, even strong proofs and living objects failed to be worthy of attention. It winds up by saying that the proceedings in his Court disclose a mysterious conspiracy. It is boldly stated that the High Court:
paid no attention to the plaintiff's case and did not see the judgment of the lower Court with a critical eye, but wholly followed the example of the original Court and acted as its pupil and that common sense was not used in writing the judgment.
18. It is further suggested that the High Court became silent on the point because the writer of a particular letter was Khan Bahadur. It also suggests that the plaintiff's vakil in the High Court could not have been a simpleton but might have received a wound from the golden knife of the well-to-do opposite party.
19. I leave aside the attack on the plaintiff's advocate in this Court, for that in my opinion does not properly speaking, amount to a contempt of Court. No authority has been cited in support of the contention that it does, and I think it undesirable to extend the scope of the definition of a contempt of Court without authority. The insult offered to an advocate not during the trial of a case but after its termination cannot be condemnation of the system of administration of justice, but would amount to a calumny upon an individual. The position of Advocates cannot be that of officers of the Court like Registrars who are appointed by the Court itself. Defamatory statements made against advocates after the termination of a case stand on quite a different footing from insults offered to such advocates while actually conducting cases. I am, therefore, not prepared to hold that the libel-on the plaintiff's advocate in this case amounted to a contempt of the High Court.
20. As to the attack on the High Court, it is undoubtedly a contempt though of a contemptible kind, and in spite of the author's assertion before us that he did not mean to cast any aspersions on the High Court Bench, there cannot be the slightest doubt that an insult to the dignity of this Court, couched in satirical language, was deliberately intended, and the High Court along with the whole administration of justice under its supervision, is held out to ridicule for which the author does not now attempt to show that there could be the slightest justification, and which, of course, he is unable to support. That such a contempt of Court can be dealt with summarily is a matter about which there can be no dispute. The pronouncement of their Lordships of the Privy Council in the case of Surendranath Banerji v. Chief Justice and, the Judges of the High Court at Fort William in Bengal (1984) 10 Cal 109 that a High Court has such power is conclusive. Contempt committed out of Court is justs as much punishable as one committed in the presence of a Court. In the matter of Sashi Bhusan Sarbadhikary (1899) 29 All 95.
21. That there was a gross attack on the integrity of the Subordinate Judge is patent even on a cursory perusal of the pamphlet, and that such an attack was intentional is admitted by the writer Abdul Hasan Jauhar.
22. Any conduct that tends to bring the authority of a Court into disrespect or which amounts to an insult offered to the Judge or the dignity of the Court, even though it may be after the termination of a pending case, is undoubtedly a contempt of Court. Contempt is not confined only to cases which directly inter-(sic) with the administration of justice (sic)pending case. In the case of St. James' Evening Post (1742) 2 Atk., 469 at 471, Lord Hardwicke, L.C. distinctly remarked that "one kind of contempt is scandalizing the Court itself." In B. v. Gray (1900) 2 QB 36 Lord Russel of Killowen, C.J., in delivering the judgment of the Court, held that a scurrilous abuse of a Judge in his character of a Judge, that is in reference to the conduct of the Judge in a judicial proceeding, even though the same has terminated, was a contempt of Court punishable in law. Such power exists not on the ground of any exaggerated notion of the dignity of an individual Judge. The power has vested in the Judges not for their personal protection only but for that of the public whose interest it is that Courts of justice should be above reproach and suspicion. If the power to punish contempt of Court were based merely on the advisability of preventing actual interference with the administration of justice, it might have been confined to pending cases only, but if, as is the case, the object be to ensure that the Courts administer justice duly and impartially, they cannot be made helpless to prevent insults to their dignity. As observed by Wills, J., in Rex v. Davies (1905) 1 KB 32 the principle which is the root of and underlies (contempts of Court) will be found to be not the purpose of protecting either the Court as a whole or the individual Judges of the Court from a repetition of them but of protecting the public, and especially those who either voluntarily or by compulsion are subject to its jurisdiction, from the mischief they will incur if the authority of the tribunal be undermined or impaired.... The offended dignity of a particular Court, or of the persons who compose it, is not the subject of punishment....The real offence is the wrong done to the public by weakening the authority and influence of the tribunal which exists for their good alone. When this is the real object it becomes immaterial whether the action, with reference to which the contempt was committed, has or has not terminated.
23. The real question which requires consideration is whether the High Court has jurisdiction to commit for contempt of an inferior Court. Inferior Courts in these provinces not being King's Courts have no jurisdiction to commit for contempts not perpetrated in facie curiae. They cannot punish contempts committed out of Court: Kochappa v. Sachi Devi [1903] 26 Mad 494. If therefore the High Courts also were to have no power to punish such contempts, they would go altogether unpunished unless in particular cases they come within the provisions of the statutory penal law. The High Court has a general superintendence over its civil Courts and watches ever their proceedings not only to prevent their exceeding their jurisdiction or otherwise acting contrary to law, but also to prevent persons from interfering with the course of justice in such Courts. It would seems at first sight that a High Court of justice, being the highest Court in the land yet without power to vindicate the dignity of its subordinate Courts and to protect officers of such Courts, would be an anomaly which could hardly be permitted to exist in a civilized country. Without such protection subordinate Courts would soon lose their hold upon public respect and the maintenance of law and order would be rendered extremely difficult. The question however has become one of some difficulty because of a conflict of opinion that has prevailed in India.
24. I prefer to leave the question of contempt of criminal Courts still open, for that question does not arise in this case. Owing to their respective constitutions there is undoubtedly some difference between the criminal Courts and the civil Courts. The criminal Courts are not directly under the High Court to the same extent as the civil Courts are and she High Court does not possess the same power of control over the officers of the criminal Courts. On the other hand the civil Courts are directly and exclusively under the superintendence and control of the High Courts. Furthermore, the superior criminal Court which existed in these provinces prior to the establishment of this High Court, was the Sadar Nizamat Adalat which was not a Court of record; nor was it even a King's Court but the Company's Court; whereas the Sadar Diwani Adalat was a Court of record and was authorized by statute (21 Geo. III.c 70. Section 21). It is on this ground that I can easily distinguish the case of the Government of Bengal v. Moti Lal Ghosh AIR 1914 Cal 69. In that case the only question which properly arose for decision was as to whether the High Court at Calcutta could punish a contempt of an inferior criminal Court. Jenkins, C.J., at p. 206 thought that as the jurisdiction of the Sadar Diwani Adalat was civil, the powers inherited from that Court were of no assistance to him in the case under consideration. The observations of the other learned Judges affecting contempts of inferior civil Courts were mere obiter dicta as the point did not properly arise for consideration. Similarly the remarks of Shah, J., in his dissentient judgment in the case ofEmperor v. Bal Krishna Govind Kulkarni AIR 1922 Bom 52 must be deemed to relate to contempts of inferior criminal Courts. On the other hand the judgment of Sir Norman Macleod, C.J., in this last mentioned case, upheld the view that the High Court had powers of punishing contempt of even inferior criminal Courts.
25. Confining myself to the question of punishing contempt of an inferior civil Court, I find that there two cases which hold that such jurisdiction exists. In the matter of K. Venkat Rao (1911) 21 MLJ 832 it was held that such power exists. This case was not followed by the learned Judge of the Calcutta High Court on the ground that it was merely based on the authority of Surendranath Banerji v. Chief Justice and the Judges of the High Court at Fort William (1984) 10 Cal 109, which did not support that comprehensive proposition. In re Mohandas Karamchand Gandhi and Mahadeo Haribhai Desai AIR 1920 Bom 175 Martin, J., held that it made no difference that the alleged abuse was of a District Judge and not of a High Court, and that power exists in India, as in England, to protect the Courts of inferior jurisdiction. Curiously enough the case of Legal Remembrancer v. Moti Lal Ghosh AIR 1914 Cal 69 does not seem to have been referred to at all. It therefore becomes necessary to examine the grounds on which such power can be based. The Calcutta High Court has expressed the view that power to punish for contempt of inferior Courts can either be expressly conferred by statute or be inherited from the Courts which were previously in existence and which have been abolished. It has come to the conclusion that no such power has been expressly conferred on the Indian High Court, and further that such power was not possessed by the Courts which have been abolished. It has, therefore, concluded that no such power can exist. I concede at once that there is no statutory provision under which the power to punish for contempt of inferior civil Courts has bean expressly conferred on the High Court. The new Contempt of Courts Act, although passed did not come into force till the 1st of May 1928, long after the publication of the pamphlet. It must also be conceded that such power is not expressly mentioned in the Indian High Courts Act or the Letters Patent under which this High Court was constituted, or the new Government of India Act. When neither the Sadar Diwani Adalat nor the Sadar Nizamat Adalat nor the inferior Courts in these provinces were subordinate to or under the control of the Supreme Court at Calcutta, I would have great difficulty in holding that the Supreme Court had jurisdiction to punish a contempt of an inferior Court of those provinces for even under the common law such jurisdiction is based on the duty to protect subordinate Courts. To have some sort of jurisdiction in an area is one thing and to have control over the Courts existing in that area is quits another.
26. This High Court till the establishment of the Chief Court in Oudh had criminal jurisdiction over British subjects in Oudh but had no control over the Oudh Courts. Court it have been hold that this Could had power to punish for contempt of an inferior Oudh Court? I would also have some difficulty in holding that our Letters Patent together with the Indian High Courts Act has the effect of conferring on this High Court all the Common Law powers vested in the Calcutta High Court including those inherited from the Supreme Court. The preamble merely recites what Her Majesty could by Letters Patent lawfully do under the Indian High Courts Act of 1861. Section 16 of the Act confers all the powers authorized by the Act, and subject to the Letters Patent, makes all the provisions of the Act, as far as circumstances may permit, applicable. And Section 9 confers on a High Court powers vested in any of the Courts "in the same Presidency," which have been abolished. But the Supreme Court at Calcutta was not abolished by the establishment of the Allahabad High Court, but had been abolished five years earlier.
27. One may not, however, be prepared to admit offhand that the Sadar Diwani Adalat, which was a Court of record, and a King's Court authorized by statute did not possess any such inherent power. Although in may be true that every Court of record need not possess such power, for example the Court of Quarter Sessions Mayor's Court and County Courts in England do not possess such powers, it cannot be equally true that a Court of record which is the highest Court in the land, does not also possess such power. But I am prepared to assume for the purposes of this case that the Sadar Diwani Adalat did not possess such inherent jurisdiction. I do not, however, think that the inheritance of such powers is the only true basis. This High Court from its very constitution has certain inherent powers which it can exercise over the districts within its jurisdiction. If the Kumaun division were brought under its regular jurisdiction hereafter, can it be urged with any degree of force that inasmuch as the Court of the Commissioner at Kumaun, which may have to be abolished, does not possess those inherent powers, therefore the High Court also would not possess those inherent powers in Kumaun, though it may possess similar powers in the other districts? It is not the territorial limits of the jurisdiction of a Supreme Court, but rather the very nature of its constitution that is of importance.
28. The question which one has to consider is whether power to protect its inferior Courts is not coeval with its very foundation and institution, and a necessary incident to every High Court of Justice. The circumstance that it is the supreme Court in these provinces would suggest that it must be armed with the power and have imposed on it the duty of preventing brave man attempts to interfere with the administration of justice in the subordinate Courts, for such interference affects the whole administration.
29. Even without any direct authority I would have been inclined to say that such inherent power must necessarily exist, the grounds for this view being (1) that it is not the indignity to individual officers requires to be prevented, but public confidence in the Courts has to be maintained; (2) that inferior Courts themselves possess no such powers and would be entirely helpless if even the superior Court cannot protect them; and (3) that the ordinary remedy under the penal laws of the land are meant for offences against officers in their individual capacity and would, if resorted to, be cumbrous and cause considerable delay. If Courts have to be protected in a way in which swift justice can be dealt out, and that can be only in a summary proceeding of the nature of contempt of Courts.
30. There is, however, abundant authority for the view that inherent jurisdiction in a supreme Court like the High Court must exist. In Rex v. Parka (1903) 2 KB. 432. Wills, J., in delivering the judgment of the Court remarked at p. 442:
This Court (the High Court) exercises a vigilant watch over the proceedings of inferior Courts and successfully prevents them from usurping powers which they do not possess, or otherwise acting contrary to law. It would seem almost a natural corollary that it should possess correlative powers of guarding them against unlawful attacks and interferences with their independence on the part of others. It is said with respect to them that there is remedy by criminal indictment. The latter remedy is unsatisfactory on account of the necessary delay.
31. That eminent Judge, quoting the opinion of Wright, J., with approval, said:
We should hesitate long before casting any more doubt than may already exist upon the capacity of this Court to deal by proceedings for contempt with cases in which attempts are made to pollute the stream of justice, and to interfere with its proper and unfettered administration by Courts which possess no adequate means of protecting themselves in this respect.
32. In Rex v. Davies (1905) 1 KB 32, Wills, J. again remarked:
Courts or the administration of justice exist for the benefit of the people, and for the benefit of the people their independence must be protected from unauthorised interference, and the law provides effective means by which this end can be secured. If it is to be secured at all in the case of the inferior Courts, it can only be secured by the action of this Court, for they have not the power to protect themselves: and if it be true that the King's Bench is in any sense the customs mourn of the kingdom, it must be its function to apply with the necessary adaptations to the altered circumstances of the present day, the same great principle which it has always upheld.
33. And again at p. 443 remarked:
When the attainment of that end required that the misdeeds of others should be corrected as well as the misfeasance of the inferior Courts themselves, it seems to us that it is no departure from principle, but only its legitimate application to a new state of things, if others whose conduct tends to prevent the due performance of their duties by those Courts, have to be corrected as well as the Courts themselves. In fact the danger to the inferior Courts which have no such powers is perhaps greater than it is to superior Courts of having their efficiency impaired by scurrilous publications.
34. I find that these two leading cases were followed in Rex v. Clarke (1910) 103 LT 636, where the High Court punished a contempt of the Coroner's Court.
35. I have been able to find another case where they have been still more recently followed, viz. King v. Editor of the Daily Mail (1921) 2 KB 733. In this last mentioned case, Lord Coleridge, J. at page 745, remarked:
No other Court than the High Court has inherent power to protect itself against contempt by proceedings for attachment or otherwise except where that power is given to it by statute. A Court martial has no inherent power apart from statute to protect itself by such proceedings, but, if this Court can interfere with the proceedings of a Court martial to check irregularities by that Court, it seems to me that it must also be clothed with the inherent jurisdiction to protect a Court martial from contempt calculated or tending to obstruct the administration of justice is that Court, unless the Army Act... ousts the jurisdiction of this Court... I am of opinion on the authority of Rex v. Davies that if the Army Act did not exist, this Court would have inherent jurisdiction in the matter of contempt in the case of a Court martial.
36. Avory, J., at page 752 remarked:
The result of that judgment (Rex v. Davies) is to show that wherever this Court has power to correct an inferior Court, it also has power to protect that Court by punishing those who interfere with the due administration of justice in that Court.
37. And at page 753 the learned Judge remarked that in the Army Act he could find
no provision either express or implied which takes away the right of a party to proceedings before a Court martial who is aggrieved by a contempt of that Court to move this Court to exercise the inherent jurisdiction which it possesses over all inferior Courts.
38. Similarly Salter, J. at, page 754, remarked:
It is of the last importance to assert and maintain the inherent jurisdiction of this Court to protect the administration of justice in all the inferior Courts, unless the Parliament shows a plain intention to restrict that jurisdiction.
39. These leading cases unmistakably show that the power of the High Court in England to deal with the contempt of inferior Courts is based not so much on its historical foundation as on the High Court's inherent jurisdiction. I do not think that I can properly allow my mind to be influenced by the American authorities on such question, as was done by a learned Judge in the Calcutta case.
40. This High Court is in an equal degree the guardian and protector of public justice throughout these provinces and has superintendence over the inferior civil Courts and must therefore have a duty cast upon it to protect such Courts, otherwise their independence and usefulness would be considerably impaired. I have therefore no hesitation in holding that such a power exists. I might add that the new Contempt of Courts Act has been enacted in order to remove doubts which had arisen as to the powers of a High Court. That enactment does not imply that the legislature has recognized that no such power did in fact exist.
Boys, J.
41. The facts of this case are sufficiently set out in the judgment of Walsh, J. There cannot be the shadow of a doubt but that the pamphlet complained of contained many expressions which amount to contempt, both of this Court directly and of a subordinate Court, that of the learned Subordinate Judge.
42. A few words I will add as to the attitude adopted by the opposite party. He appeared before us in person and unrepresented by counsel. He tendered a petition in which he purported to describe how he came to write the pamphlet, how he came to realize the foolishness of his act, and what an excellent character he had previously borne, and states "that the petitioner never entertained any contemptible idea against the judgment of the lower Court." He concluded this document by saying that
the petitioner without showing any cause commits himself entirely to your Lordships mercy and begs for pardon.
43. It is to be noticed that the document does not contain any sort of apology or any expression of sincere regret for his act. It is merely a recognition of the "foolishness" of his act (suggesting merely possibly that he recognized the consequences that were likely to ensue), and asks for pardon.
44. When called upon at the commencement of the proceedings he demanded that orders be passed upon this petition before he said anything further, stating that if the order was unfavourable he would then engage and instruct counsel in his defence. In effect he demanded that a favourable order should be passed or in the alternative the case should be postponed. He had ample time to instruct counsel and such a demand could not possibly be entertained. The later attitude taken up is also to be noted. He declared that he did not adhere to his accusations against the High Court but maintained the truth of his charges against the Subordinate Judge. The question inevitably suggests itself whether this attitude was adopted under a belief that this Court could deal with a contempt directed against a subordinate Court; and whether that belief was not the result of legal advice already taken and given on the basis of the decision in Legal Remembrancer v. Moti Lal Ghosh AIR 1914 Cal 69. The only other question on which I propose to say anything is the jurisdiction of this Court. I have given my most careful consideration to the cases decided by the Courts in India. I will give as briefly as possible my reasons for the conclusion at which I have arrived, that this Court has statutory jurisdiction to punish not only a contempt directed particularly, against this Court but also a contempt directed against a Court subordinate to it, and that in the latter case it is immaterial whether the contempt can or cannot be said to affect the High Court also by reason of the possibility of the proceeding to which the contempt relates coming by process of law before the High Court.
45. That this Court has jurisdiction by summary process to punish a contempt directed against this Court is beyond any need for discussion: see in the matter of Sashi Bhusan Sarbadhikary (1899) 29 All 95. I will therefore only consider our power to deal with the contempt in so far as it related to the inferior Court.
46. I will trace from its inception, as briefly as the subject permits, the history of the jurisdiction in the present matter which I believe to exist in this Court. The Court of King's Bench (I quote from Blackstone 1794) was "the Supreme Court of Common Law", a survival of the Aula Regis, a successor to ''all that was good and salutary of the jurisdiction of the Court of Star Chamber." Included in its extensive powers, there was in particular relation to the offence of contempt of Court, a power to punish
anything in short that demonstrates a gross want of that regard and respect, which when once Courts of Justice are deprived of, their authority (so necessary for the good order of the Kingdom) is entirely lost among the people.
47. Such a contempt "may arise" (not only in the face of the Court but also) "in the absence of the party by speaking or writing contemptuously of the Court or Judges, acting in their judicial capacity.
48. These wide powers to protect the administration of justice had their origin in the facts that
a power, therefore, in the Supreme Courts of Justice to suppress such contempts, by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal if it is a part of the law of the land.
49. I note that in these passages descriptive of the power of the King's Bench as it stood in 1794, i.e. at the very period with which we shall be concerned when considering the power of the Supreme Court at Port William, there is not a hint that the power was limited to the punishment of only such contempt as might be directed against the Superior Court.
50. This brief notice of the origin and scope of the powers of the King's Bench is sufficient and necessary because it is the powers of this Court by name that we shall later find to have been conferred on the Supreme Court at Fort William. The wide scope of the powers of the King's Bench Division, the successor of the Court of King's Bench, are illustrated in Rex v. Davies (1905) 1 KB 32. A rule for a writ of attachment for contempt of Court was issued against a newspaper for publishing a number of statements calculated to give an exceedingly unfavourable impression of a prisoner who was at the time being brought before Justices on a charge of abandoning a child, upon which charge she might be committed to quarter sessions (a subordinate Court); but on a charge of murder being added the prisoner was actually committed to the Assizes (a branch of the High Court). It was contended for the opposite party that the High Court had no jurisdiction as the publication was not necessarily a contempt of the High Court and its jurisdiction did not extend to contempts of inferior tribunals: see page 33. The point was, therefore, definitely and clearly raised. It was held that the fact that at the time of the publication it was uncertain whether the case would reach the Assizes or not made no difference that such articles are "a contempt of any Court which very well may try the case", e.g., the Assizes Court
but in fact does not do so, as well as of the Court which actually tries it * * * * It matters not whether the uncertainty at the time the article was published extended only to the forum to which the case should be sent, or to question whether a committal would take place at all or both (page 65).
51. This brought the case within the rule that the Superior Court could punish for a contempt of an inferior Court if there was merely a possibility that the case might come later before the superior Court. Mr. Justice Wills, however, then proceeded (page 37) to make it quite clear that even if the case had definitely remained in a subordinate Court the King's Bench Division would have power to deal with the contempt and he further declared the principles upon which it had such power. It is this portion of the judgment with which we are more immediately concerned. Mr. Justice Wills held that even assuming that a committal had taken place to quarter sessions, that is, to the subordinate Court, the present King's Bench Division inherits among other powers all the powers of the King's Bench (p. 37); that the King's Bench had the widest powers of superintendence and control of all inferior Courts (page 38;) and was "in a special manner the guardian and protector of public justice" (page 38); that the object of punishing contempts is to protect the public from the deference and respect paid to a tribunal from an opinion of its justice and integrity being undermined; to prevent undue interference with the administration of justice and that this principle is equally applicable to Courts of inferior jurisdiction (page 41). The King's Bench Division can therefore not only administer correction to inferior Courts but can afford them protection (pages 43 and 47).
52. A careful perusal of this latter portion of the judgment discloses no hint that Mr. Justice Wills considered that the power of the King's Bench Division was limited to punishing a contempt of the High Court through an inferior Court, that is, that he was regarding the offence against the inferior Court as in effect an offence against the superior Court. The superior Court was held to have power to punish directly and as such an offence committed outside the Court in relation to proceedings affecting an inferior Court and not; on the ground that there had been an offence against any particular Court but as an act which was prejudicial to the rights of the public to an unhampered administration of justice.
53. In Legal Remembrancer v. Motilal Ghose AIR 1914 Cal 69, to which I shall refer again, his Lordship the Chief Justice doubted whether the role of the King's Bench as "customs mourn" could be attributed to the Supreme Court at Port William or to the High Court. I am unable to appreciate this doubt. If the jurisdiction exercised by the King's Bench was a common law jurisdiction, and that common law jurisdiction was conferred on the Supreme Court at Fort William, it appears to me immaterial whether that common law jurisdiction was gradually acquired by the King's Bench in its capacity as customs mourn or whether it was called customs mourn because it had acquired those common law powers. For the purposes of this case before us my conclusion from Rex v. Davies (1905) 1 KB 32 is that it was definitely held in that case that the King's Bench and its successor the King's Bench Division have and always have had common law jurisdiction to punish an offence against the administration of justice whether the contempt be in relation to proceedings in the Supreme Court or in relation to proceedings in an inferior Court, and in the later case regardless of whether these proceedings may not eventually in some way come before the Supreme Court.
54. The next step was the making applicable of this English common law to the Courts in the Presidency Town of Fort William. The common law was so made applicable at least as early as the Charter of 1726. It was more specifically made applicable to the Supreme Court at Fort William by its Charter when that Court was constituted on March the 26th 1774: compare Clauses 1, 4 and 21 of that Charter. It is unnecessary to elaborate in greater detail the proposition that the Supreme Court was given jurisdiction to enforce the common law for that proposition is nowhere seriously challenged. Serious difference of opinion has only arisen in regard to (a) what was the extent of the common law jurisdiction of the King's Bench; (b) what is the effect of the inheritance by the High Court of the common law jurisdiction conferred upon the Supreme Court.
55. With the first question I have already dealt. It remains to consider the second question. The Supreme Court having power to administer common law, had, as indicated by Rex v. Davies (1905) 1 KB 32, power to deal with not only a contempt directly affecting itself, but a contempt affecting proceedings in any of the Courts subject to its control, the Courts within the limits of the Presidency Town of Fort William. Clause 21 of the Charter declared that
all and every of the said Courts and Magistrates shall be subject to the order and control of the said Supreme Court of Judicature, at Fort William in Bengal, in such sort, manner and form as the inferior Courts and Magistrates of and in that part of Great Britain called England are by law, subject to the order and control of our Court of King's Bench.
56. How the powers of the Supreme Court came to be conferred on the High Court, and to what extent, requires to be considered carefully, for the matter is one (in one) in regard to which a deeply versed student, Mr. Morley, said in 1858:
It would be a difficult task to define exactly the powers and jurisdictions of Her Majesty's Supreme Courts in India given by the Statutes and Charters.
57. By 24 and 25 Vict. C. 104, Clause 1, it was declared that it shall be lawful for Her Majesty by Letters Patent to establish a High Court of Judicature at Fort William for the Bengal Division of the Presidency of Fort William and at Madras and Bombay for those presidencies.
58. By Clause 8 the Supreme Courts and the Courts of Sadder Diwani Adalat and Sadder Nizamat at Calcutta and the corresponding Courts at Madras and Bombay were to be abolished as the High Courts came into being by Letters Patent. By Clause 9 the Presidency High Courts, as soon as established, were to have two classes of jurisdiction: (a) all such jurisdiction as might be specifically granted by their Letters Patent, subject to such directions and limitations as might be prescribed by the Letters Patent as to the exercise of original civil and criminal jurisdiction beyond the limits of the Presidency Town, and further (b) all the jurisdiction of the Courts abolished, i.e., of the Supreme Courts and the Sadder Adalats "save as by Letters Patent may be otherwise directed" and "subject to the legislative powers of the Governor-General of India in Council."
59. The reason of this latter portion of Clause 9 is clearly to avoid depriving the High Court by inadvertent omission from its Letters Patent of any powers of the Court that were disappearing which it was desirable should be preserved; for as I have noted above, nobody at this time could catalogue exactly all the powers of the Supreme Court. The High Court at, e.g. Calcutta, acquired, there-fore, by the simple fact of its creation not only the powers specifically conferred by its Letters Patent but further also all the powers of the Supreme Court except in so far as any of these powers might be specifically taken away by the Letters Patent or by legislation.
60. I have deemed it necessary to state this thus precisely; for there has often been a misconception that the powers of the High Courts are to be found in and only in their Letters Patent. That is not so. By the very act of their coming into existence they receive by virtue of the Statute the powers of the old Courts subject to certain limitations. There are no limitations either in the Letters Patent of e.g. the Calcutta Court, or in legislation affecting the old Supreme Court powers to deal with contempt. The High Court at Calcutta has therefore, had conferred on it those powers in full. It follows that the High Court of Calcutta has power to deal with contempts affecting the administration of justice whether those contempts be committed in regard to proceedings in the High Court or in a Court subordinate to the High Court and whether in the latter case the proceedings might or might not eventually come before the High Court.
61. The only suggested difficulty in accepting this, to my mind, clear chain of reasoning, is to be found in the judgment of their Lordships of the Calcutta High Court in Legal Remembrancer v. Moti Lal Ghose AIR 1914 Cal 69. In giving my most careful consideration to the judgment, the principal judgment in that case of his Lordship the Chief Justice, it became apparent that the Chief Justice held that the High Court had only succeeded to an authority locally limited by the boundaries of the Presidency Town of Fort William within which the Supreme Court exercised jurisdiction. This is, however, with the greatest respect for their Lordships, in my opinion, a mistaken view of the extent of the jurisdiction conferred on the Calcutta High Court. That which the High Court had conferred upon it was not the jurisdiction of the Supreme Court over particular Courts, A, B, C, and D, and their successors situated within a particular area, but the jurisdiction of the Supreme Courts "over all Courts subject to its control." Thus regarded the High Court had conferred upon it jurisdiction not only as regards inferior Courts within the limits of the Presidency Town of Fort "William, but jurisdiction in regard to "all Courts subordinate to its own control." This being the aspect in which the matter presented itself to me on a first careful perusal of this judgment in Legal Remembrancer v. Motilal Ghose AIR 1914 Cal 69.
62. I think it unnecessary to labour the point further for on a subsequent perusal of the judgment of his Lordship the Chief Justice, Sir Norman Macleod, in. Emperor v. Balkrishna AIR 1922 Bom 52, I found the same view to have been taken and admirably expressed by him at pp. 619 and 620 of the judgment, It is important, then, to appreciate that the powers conferred on the High Court by the last part of Clause 9 were not powers limited by former local metes and bounds but powers of the same nature as those previously exercised and to be exercised within the new local jurisdiction.
63. I shall note in connexion with the next point that in fact the jurisdiction of the Supreme Court was not confined to the local limits of Fort William. Such being the power of one of the Presidency High Courts, that at Calcutta, which I have taken only by way of exemplar, I have only now to consider the hearing of this finding on the powers of High Courts other than Presidency, including more particularly Allahabad. An instance of the inaccurate drafting of his Statute 24 and 25 Vict. C. 104. is apparent in Clause 9 which we have been considering. It was clearly intended primarily as it stood by itself, apart from later sections to apply to the High Courts at Fort William. Madras and Bombay, and yet it begins "each of the High Courts to be established under this Act" which includes this Court which is also established under this Act. The clause particularly referring to this High Court is Clause 16 which provided that it shall be lawful for Her Majesty by Letters Patent to establish a High Court for any territory not included within the limits of the local jurisdiction of another High Court.
64. In the first place, such High Court was to have so much as might be conferred by its Letters Patent of that jurisdiction which under the Statute might be conferred on or will become vested in a Presidency Court. This gave powers to confer by Letters Patent exactly as was conferred by Letters Patent on the Fort William Court some of the powers of the nature formerly exercised by the Supreme Court. It was here again of course appreciated, as in the case of the Fort William Court, that there might be powers omitted by inadvertence which it was desirable that the new Court should have whether those were powers conferred by the Statute on the Presidency High Courts or powers formerly exercised by Courts having jurisdiction over the territory of the new High Court.
65. A further provision was, therefore, added to Clause 16 that, subject to any prohibition in the Letters Patent, all the provisions of the Statute having reference to any Presidency High Court shall, as far as circumstances may permit, be applicable to the High Court which is being created. The direction as to the applicability of all the provisions of the Statute includes the application of Clause 9. There is no apparent reason why Clause 9 should not be included so far as circumstances permit. The fact that the Letters Patent of the new High Court may specifically confer not only any or all of the powers conferred on a Presidency High Court under the first part of Clause 9, but also any or all of the powers vested in a Presidency High Court by the second part of Clause 3, is no reason for holding that Clause 9 does not apply to the new High Court so far as circumstances shall permit and subject to any specific direction to the contrary in the Letters Patent, for exactly the same consideration applies to Presidency High Courts whose Letters Patents may and do confer with modifications portions of the jurisdiction exercised by the Supreme Courts.
66. The first part of Clause 9 cannot of course apply, for there is special provision for the Letters Patent of the new Court in Clause 16, But there is no reason why the second part of Clause 9 should not apply and every reason why it should. It is only by its application that the jurisdiction of those Courts which would otherwise be lost by inadvertence is saved. Nor can it be contended that the enactment that all the provisions of the Act having reference to a Presidency High Court shall, as far as circumstances may permit, be applicable to the new High Court created under Clause 16 is satisfied so far as the latter part of Clause 9 is concerned by holding that to the new High Courts are saved only the powers of the Sadder Adalats and supporting such contention by the assertion sometimes made that the Supreme Court had nothing to do with the Subordinate Government or Sub-Presidency of Agra. Such an assertion is wholly unfounded. When referring above to the argument of the learned Chief Justice of the High Court at Calcutta, and for the purposes of that argument. I was content to treat the matter as if the jurisdiction of the Supreme Court was limited to the boundaries of Fort William. But in fact its jurisdiction was much wider. Even in 1774 that was so. In 1853 the Royal Commission appointed to consider the reform of the Judicial Establishments of India, when setting out in an appendix to their First Report the jurisdiction of the Supreme Courts, after stating the more strictly local jurisdiction of the Court at Fort William, continued;
2. In like manner the Court exercises all its jurisdiction over all British born subjects, that is, persons who have been born within the British islands and their descendants, who are resident in any of the provinces which are comprehended within the Presidency of Bengal or the subordinate Government of Agra,
3. All persons resident at any places within the said provinces who have a dwelling house and servants in Calcutta or a place of business there where they carry on any trade, through their agents or servants, are held to be constructively inhabitants of Calcutta for the purpose of liability to the common law and equity jurisdictions of the Court.
6. All servants of the Company or of any British subject are liable to the civil jurisdiction and all such servants who commit any crime or misdemeanour of oppression, are liable to the criminal jurisdiction of the Court, And as to Madras and Bombay, the Supreme Courts have generally the same powers, and their jurisdictions are generally the same within the settlements of Madras and Bombay, as those of the Supreme Court of Judicature at Port William within the territories attached to the Presidency of Bengal and Sub-Presidency of Agra.
67. The Sub Presidency of Agra was, therefore, most intimately concerned in the preservation to the High Court for the North-Western Provinces, as the territory of Agra was latter called, of the powers of the Supreme Court except where for special reasons such powers were wholly taken away or modified and such preservation by Clause 16 was in no sense surplusage.
68. The fact that the Supreme Court was abolished in 1361 and this Court was not created till 1865 is of course no reason for holding that it cannot have had conferred on it any powers similar to those exercised by the Supreme Court. Not uncommonly, Presidency High Courts, because they came into being simultaneously with the disappearance of the Supreme Courts, are spoken of loosely as having inherited powers of the Supreme Courts, but in precise language there was no question of inheritance at all, the powers were expressly conferred by Statute, And the powers formerly exercised by a body that ceased to exist fifty years before could just as easily be conferred by Statute as the powers exercised by a moribund body. Nor does the question whether any body or nobody was exercising those powers in the interval create any difficulty. They could equally easily in either case be conferred by Statute.
69. The whole scheme of the Statute as evidenced by Clause 16 indicates an intention to assimilate the new High Courts to the Presidency High Courts except in certain particulars to be set out in the Letters Patent, and this is how the clause was understood by the framers of the Letters Patent shortly after the Statute became law, for they recite the statute as declaring that
all the provisions of the said recited Act relative to High Courts * * * shall as far as circumstances may permit be applicable to any new High Court.
70. There is no direction to the contrary in the Letters Patent; nor is it apparent that there is "any circumstance which does not permit" of the new High Court created by virtue of Cl, 16 exercising throughout its particular territory the power to attach for contempt which was possessed by the Supreme Court.
71. It follows that this Court at Allahabad has the same common law summary jurisdiction to punish contempt as I have held to be possessed by the Calcutta. Court. I therefore hold
(1) that the King's Bench had by virtue of the common law summary jurisdiction to punish as for contempt all offences against the administration of justice whether or not the offence was committed in the face of the Court or outside the Court and whether the Court was sitting or not sitting; and whether concerning the King's Bench directly or in relation to proceedings concerning an inferior Court and whether in the latter case those proceedings might or might not in some way come at some stage before the King's Bench;
(2) that the Supreme Court had conferred on it by the Statute and the Charter creating it the above named powers of the King's Bench;
(3) that the Calcutta High Court by virtue of the statute and the Charter creating it obtained similar powers note limited to the area within the territorial jurisdiction of the Supreme Court but in relation to all the Courts subject to the control of the High Court;
(4) that this Court at Allahabad had conferred on it by the Statute and the. Letters Patent creating it, similar powers to those conferred on the High Court of Calcutta.
(5) that this Court is, as is the King's Bench Division as successor to the King's Bench, and, I may add as I sea no reason to the contrary, every other High Courts in this country "in a special manner the, guardian and protector of public justice, and that it has power to deal with all contempts directed against the administration of justice whether those contempts are committed in face of the Court or outside it and independently of whether the particular Court is sitting or not sitting; and whether those contempts relate to proceedings directly concerning itself or whether they relate to proceedings concerning an inferior Court, and in the latter case whether those proceedings might or might not at some stage come before this Court.
72. In conclusion I would add that, if there be in fact any doubt as to the correctness of this view, I should further hold that this Court has such power as part of its inherent jurisdiction, accepting the proposition enunciated by Black stone quoted in an earlier portion of this judgment, that such a power in a Supreme Court of Justice results from the first principles of judicial establishments and must be an inseparable attendant upon every superior tribunal. "Laws, without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory." The passages I have quoted are in direct relation, not only to the Superior Court's power to deal with contempt; against itself but in relation to the Superior Court's control of the administration of justice by the Courts subordinate to it.
73. This would have been sufficient to dispose by itself of the question of our powers in the particular case, but there is also raised the question of the statutory powers of this Court and in that aspect the power in this particular case is only a part of the much larger question of the Court's general jurisdiction.
74. I agree to the order prop
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