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Sunday, October 23, 2016

“Ordinarily, the Court would not use the power to punish for contempt for curbing the right of freedom of speech and expression, which is guaranteed under Article 19 (1) (a) of the Constitution. Only when the criticism of judicial institution transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate attempt to denigrate the institution then the court would use this power. - = 2016 Oct. http://judis.nic.in/supremecourt/imgst.aspx?filename=44257

                                                              NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No. 463 of 2006


HET RAM BENIWAL & ORS.


                                                           .... Appellant(s)
                                   Versus

RAGHUVEER SINGH & ORS.

                                                             ….Respondent(s)
                                    With
                       CRIMINAL APPEAL No. 464 of 2006


BHURAMAL SWAMI


                                                           .... Appellant(s)
                                   Versus

RAGHUVEER SINGH & ORS.

                                                             ….Respondent(s)



                               J U D G M E N T


L. NAGESWARA RAO, J.
      The Appellants were found guilty of committing contempt  by  the  High
Court of Judicature for Rajasthan at Jodhpur.  Simple  imprisonment  of  two
months and fine of Rs. 2,000/- each was  imposed.   Aggrieved  by  the  said
judgment, the Appellants have filed these Criminal Appeals.
 The Appellants along with Sheopat Singh belong  to  the  Marxist  Communist
Party.  Sheopat Singh died during the pendency of these proceedings.  It  is
relevant to mention that Appellants Nos. 2 and 3 are advocates. A  prominent
trade union activist of  Sri  Ganganagar  District  Shri  Darshan  Koda  was
murdered on 18.12.2000.  Some of the accused were granted anticipatory  bail
in February, 2001 by the High Court of Rajasthan.  The Appellants  addressed
a huge gathering of their party workers in front of the Collectorate at  Sri
Ganganagar on 23.02.2001. While addressing  the  gathering,  the  Appellants
made scandalous statements against the High Court which  were  published  in
Lok Sammat newspaper on 24.02.2001.   The offending statements made  by  the
Appellants (from the translated version) are summarized as under:
Appellant No. 1 - “Ex MLA Het Ram Beniwal said that, there are two types  of
justice in the courts.  A thief of Rs.100/- cannot get bail,  if  the  lathi
and gandasi is hit then the courts ask for the statements of  the  witnesses
and diary, but Miglani and Gurdayal Singh committed the  murder,  even  then
anticipatory bail had been taken on the application without diary.”
Appellant No. 2 - “Navrang Chaudhary,  Advocate,  District  President,  CITU
said that the general public has lost confidence in the law and justice.”
Appellant No. 3 - “MCP Leader Bhuramal Swami naming the judge  of  the  High
Court said in attacking way that all around there is  rule  of  rich  people
whether it is bureaucracy or judiciary.”
Appellant No. 4 - “Sarpanch Hardeep Singh told that there was  influence  of
money behind the anticipatory bail of the accused.”
The Advocate General gave his consent to Respondent No.1 for  initiation  of
contempt proceedings on 16.01.2002.  Thereafter,  Respondent  No.1  filed  a
Contempt Petition in the High Court.   It was stated by Respondent No. 1  in
the contempt petition that baseless allegations of bias and corruption  were
made by the Appellants against the judiciary.   He  also  alleged  that  the
Appellants were guilty of  a  systematic  campaign  to  destroy  the  public
confidence in the judiciary.


The Appellants filed a common counter denying the allegations  made  against
them. The appointment of the Special Public Prosecutor in the  case  of  the
murder of Shri Darshan Koda was in  dispute  and  the  Appellants  contended
that they were agitating for appointment  of  another  competent  lawyer  as
Special Public  Prosecutor.  They  accused  Respondent  No.1  of  initiating
contempt proceedings  only  to  harass  and  victimize  them  as  they  were
agitating for a change  of  the  Special  Public  Prosecutor.   They  denied
making any defamatory statements against the judiciary.     A  compact  disc
(CD) was produced on 15.07.2003 which was  a  video  recording  of  a  press
conference held on 15.05.2002 at Sri Ganganagar by the third  Appellant  and
Sheopat  Singh.  The  said  press  conference  was  also  telecast  on   ETV
(Rajasthan).  The High Court viewed the CD after taking  consent  from  both
sides in the presence of the third Appellant and Sheopat  Singh.   The  High
Court directed a transcript of the video to  be  prepared  and  be  kept  on
record.


The High Court  framed  three  questions  for  consideration  which  are  as
follows:

“Whether statement published in “Lok Sammat” dtd. 24.2.2001  published  from
Sri Ganganagar amounts to criminal contempt?

Whether editor’s liability for whatever is published  in  the  newspaper  is
absolute or he is not liable for  faithful  reproduction  of  the  statement
made by somebody else in the news reporting?

Whether it is proved beyond reasonable doubt on the  basis  of  material  on
record that respondents No.2 to 6 did  make  the  statements  attributed  to
them respectively so as to hold them liable for contempt?”


In view of the disparaging  remarks  made  by  the  Appellants  against  the
judges of the Rajasthan High Court, the High Court held that  the  statement
published in Lok Sammat on 24.02.2001 amounts  to  criminal  contempt.   The
scathing remarks made by the Appellants have a tendency of creating a  doubt
in the minds of the public about the impartiality,  integrity  and  fairness
of the High Court in administering justice.  According to  the  High  Court,
the scurrilous attack made by the Appellants against  the  judiciary  lowers
the authority of the Court.


In view of the unconditional apology tendered at the earliest point of  time
by Respondent No. 1, the Editor of Lok Sammat,  the  High  Court  discharged
the notices against him in the contempt petition. The  High  Court  answered
the third point against the Appellants and held them guilty of  contempt  as
the case was proved  against  them  beyond  reasonable  doubt.   The  entire
evidence on record was scrutinized carefully by  the  High  Court  to  reach
this conclusion.  The press conference  held  by  the  third  Appellant  was
highlighted by the High Court to  conclude  that  the  highly  objectionable
statements were, in fact, made by the  Appellants  on  23.02.2001.   As  the
Appellants denied having made any statements against the judiciary in  their
reply to the contempt petition, the  journalists  demanded  an  explanation.
The third Appellant stated that they stood by what was said  on  23.02.2001.
The High Court held the Appellants guilty of  committing  criminal  contempt
and sentenced them to simple imprisonment of two  months  and  fine  of  Rs.
2000/- each.


We have  heard  Mr.  Prashant  Bhushan,  Advocate  for  the  Appellants.  As
Respondent No. 1 who  was  the  petitioner  in  the  contempt  petition  was
unrepresented, we requested Ms. Aishwarya  Bhati,  Advocate  to  assist  the
Court to which she readily agreed.   Apart from making oral submissions  Ms.
Bhati also gave a written  note.   Mr.  Bhushan  submitted  that  statements
attributed to the Appellants only represent fair criticism which  would  not
amount to contempt.  According to him, the Appellants were  in  an  agitated
mood due to the murder of one of their leaders and the  mishandling  of  the
criminal case connected to  that  murder.    Criticism  of  class  bias  and
improper administration of justice cannot be considered to be contempt.   He
referred to a statement attributed  to  the  fourth  Appellant  who  alleged
influence of money in the grant of anticipatory  bail  to  the  accused  and
explained that  statement  as  having  been  made  in  a  different  context
altogether.   He  stated  that  the  influence  of  money  was  against  the
authorities and police force and not attributed to the judiciary.   He  also
stated that the statement made by the third Appellant who  named  the  judge
who granted anticipatory bail and accused the judiciary of being partial  to
rich people does not tantamount to contempt.  Strong reliance was placed  on
Indirect Tax Practitioners Association v. R. K. Jain, reported in  (2010)  8
SCC 281 by  Mr. Bhushan to contend that the Courts should not  be  sensitive
to fair criticism.  He also stated that the power of punishing for  contempt
has to be exercised sparingly.
Ms. Aishwarya Bhati, the learned Amicus Curiae, submitted that the  judgment
of the High Court does not warrant any interference as the  entire  evidence
was dealt with in detail.  She submitted that all the relevant factors  were
taken into account by the High Court including the statements  made  by  the
Appellants which ex facie demonstrated contempt, the stand of the editor  of
the newspaper  that  they  have  scrupulously  and  correctly  reported  the
statements in the newspaper and non denial of the Appellants addressing  the
public meeting at the Collectorate of Sri Ganganagar.   She  also  submitted
that the High  Court  took  note  of  the  press  conference  of  the  third
Appellant  and  Sheopat  Singh  on  15.05.2002  and  the  affidavits  of   5
journalists and  one  deed  writer  who  were  witness  to  the  meeting  on
23.02.2001.  She placed reliance on a judgment of  this  Court  reported  in
Bal Kishan Giri v. State of Uttar Pradesh, reported in (2014) 7 SCC  280  to
contend that vituperative comments undermining the  judiciary  would  amount
to contempt.   She also relied upon Vijay Kumar Singh  v.  Union  of  India,
reported in (2014) 16 SCC 460 to contend that the apology was made only  for
the purpose of  avoiding  punishment  and  was  not  bona  fide.   To  avoid
prolixity, we are not referring to other  judgments  cited  by  the  learned
Amicus Curiae.  She referred to the affidavits filed by  the  Appellants  in
this Court apologizing for the statements and even they do  not  demonstrate
any genuine contrition.   She submitted that an apology  by  the  contemnors
should  be  tendered  at  the  earliest  opportunity  and   it   should   be
unconditional.


Section 2 (c) of the Contempt of Courts Act, 1971 (hereinafter  referred  to
as ‘the Act’) defines criminal contempt as follows:


“2. Definitions.  In this Act, unless the context otherwise requires,
(c) “criminal contempt” means the publication (whether by words,  spoken  or
written, or by signs, or by visible representation,  or  otherwise)  of  any
matter or the doing of any other act whatsoever which –
 (i)  scandalises or tends to scandalise, or lowers or tends  to  lower  the
authority of, any court; or
(ii)  prejudices, or interferes or tends to interfere with, the  due  course
of any judicial proceeding; or
(iii)       interferes or tends to interfere with, or obstructs or tends  to
obstruct, the administration of justice in any other manner;”

Section 5 of the Act is as under:

    “5.Fair criticism of judicial act not contempt.

      “A person shall not be guilty of contempt of court for publishing  any
fair comment on the merits of any case which  has  been  heard  and  finally
decided.”

Section 12 of the Act is as under:

“12. Punishment for contempt  of  court  (1)  Save  as  otherwise  expressly
provided in this Act or in any  other  law,  a  contempt  of  court  may  be
punished with simple imprisonment  for  a  term  which  may  extend  to  six
months, or with fine which may extend to two thousand rupees, or with  both.


      Provided that the accused may be discharged or the punishment  awarded
may be remitted on apology being made to the satisfaction of the court.

      Explanation.-An apology shall not be rejected  merely  on  the  ground
that it is qualified or conditional if the accused makes it bona fide.

      (2) Notwithstanding anything contained in any law for the  time  being
in force, no court shall impose a sentence in excess of  that  specified  in
sub-section (1) for any contempt either in respect of itself or of  a  court
subordinate to it.

      (3) Notwithstanding  anything  contained  in  this  section,  where  a
person is found guilty of a civil contempt, the court, if it considers  that
a  fine  will  not  meet  the  ends  of  justice  and  that  a  sentence  of
imprisonment is  necessary  shall,  instead  of  sentencing  him  to  simple
imprisonment, direct that he be detained in a civil prison for  such  period
not exceeding six months as it may think fit.

(4) Where the person found guilty of contempt of court  in  respect  of  any
undertaking given to a court is a company, every person  who,  at  the  time
the contempt was committed, was in charge of, and was  responsible  to,  the
company for the conduct of the business of  the  company,  as  well  as  the
company, shall be deemed to be guilty of the  contempt  and  the  punishment
may be enforced, with the leave of the court,  by  the  detention  in  civil
prison of each such person:

      Provided that nothing contained in this sub-section shall  render  any
such person liable to such punishment if he proves  that  the  contempt  was
committed without his knowledge or that he exercised all  due  diligence  to
prevent its commission.

(5)  Notwithstanding  anything  contained  in  sub-section  (4),  where  the
contempt of court referred to therein has been committed by  a  company  and
it is proved that the contempt  has  been  committed  with  the  consent  or
connivance of, or is attributable  to  any  neglect  on  the  part  of,  any
director,  manager,  secretary  or  other  officer  of  the  company,   such
director, manager, secretary or other officer shall also  be  deemed  to  be
guilty of the contempt and the punishment may be enforced with the leave  of
the court, by the detention in  civil  prison  of  such  director,  manager,
secretary or other officer.

      Explanation.-For the purpose of sub-sections (4) and (5),-

(a)"  company”  means  anybody  corporate  and  includes  a  firm  or  other
association of individuals ; and

(b) "director", in relation to a firm, means a partner in the firm.


We are, in the present case, concerned  with  Section  2(c)(i)  of  the  Act
which deals with scandalizing or lowering the authority of  the  Court.   It
has been held by this Court that judges need not be protected and that  they
can take care of themselves.  It is the right and interest of the public  in
the due administration of justice that have to be protected. See Asharam  M.
Jain v. A. T. Gupta, reported in (1983) 4 SCC 125.  Vilification  of  judges
would lead to the destruction of the system of  administration  of  justice.
The statements made by the Appellants are not only derogatory but also  have
the propensity to lower the authority of  the  Court.   Accusing  judges  of
corruption results in denigration of the institution which has an effect  of
lowering the confidence of the public in the  system  of  administration  of
justice.  A perusal of the allegations made  by  the  Appellants  cannot  be
termed as fair  criticism  on  the  merits  of  the  case.   The  Appellants
indulged in an assault on the integrity of the judges of the High  Court  by
making baseless and unsubstantiated allegations.  They are not  entitled  to
seek shelter under Section 5 of the Act.


The oft-quoted passage from Ambard  v.  Attorney-General  for  Trinidad  and
Tobago, [1936] A.C. 322 is that “[j]ustice is not a cloistered  virtue:  she
must be allowed to suffer the scrutiny and respectful even though  outspoken
comments of ordinary men.”  The Privy Council in the same judgment  held  as
follows: “The path of criticism is  a  public  way:  the  wrong  headed  are
permitted to err therein: provided that members of the public  abstain  from
imputing improper motives to those taking  part  in  the  administration  of
justice, and are genuinely exercising a right of criticism, and  not  acting
in malice or attempting to impair the administration of  justice,  they  are
immune.” [Emphasis ours]

In Indirect Tax Practitioners Association v. R. K. Jain (supra)  this  Court
held in paragraph 23 as follows:

“Ordinarily, the Court would not use the power to punish  for  contempt  for
curbing the right of freedom of speech and expression, which  is  guaranteed
under Article 19 (1) (a) of the Constitution.  Only when  the  criticism  of
judicial institution transgresses all limits  of  decency  and  fairness  or
there is total lack  of  objectivity  or  there  is  deliberate  attempt  to
denigrate the institution then the court would use this power.”


 Every citizen has a fundamental right to speech, guaranteed  under  Article
19  of  the  Constitution  of  India.  Contempt  of  Court  is  one  of  the
restrictions on such right. We are conscious that the power  under  the  Act
has to be exercised sparingly and not in a routine manner.  If  there  is  a
calculated effort to undermine  the  judiciary,  the  Courts  will  exercise
their jurisdiction to  punish  the  offender  for  committing  contempt.  We
approve the findings recorded by the High Court  that  the  Appellants  have
transgressed all decency by making serious  allegations  of  corruption  and
bias against the High Court.  The caustic comments made  by  the  Appellants
cannot, by any stretch of imagination, be termed  as  fair  criticism.   The
statements made by the Appellants,  accusing  the  judiciary  of  corruption
lower the authority of the Court.  The Explanation to   sub-Section  12  (1)
of the Act provides that an apology should not be  rejected  merely  on  the
ground that it is qualified or tendered at a belated stage,  if the  accused
makes it bona fide.  The stand taken  by  the  Appellants  in  the  contempt
petition and the  affidavit  filed  in  this  Court  does  not  inspire  any
confidence  that  the  apology  is  made  bona  fide.   After   a   detailed
consideration of the submissions made by both  sides  and  the  evidence  on
record, we are in agreement with the judgment of the  High  Court  that  the
Appellants are guilty of committing contempt of  Court.   After  considering
the peculiar facts and circumstances of the case  including  the  fact  that
the contemptuous statements were made in 2001, we  modify  the  sentence  to
only payment of fine of Rs. 2,000/- each. The Appeal is dismissed  with  the
said modification.


Criminal Appeal No. 464 of 2006, which concerns the same facts  as  reported
in another newspaper, stands disposed of in terms of Criminal Appeal  No.463
of 2006.


We record our appreciation for the  assistance  rendered  by  Ms.  Aishwarya
Bhati, Advocate as Amicus Curiae.


                      .…............................J.
                 [ANIL R. DAVE]



                                          ................................J.
                             [L. NAGESWARA RAO]

New Delhi,
October 21, 2016

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