1. This Rule was issued on the Opposite Parties to show cause why they should not be proceeded against for contempt of the Court of the Additional Chief Presidency Magistrate of Calcutta for having printed and published certain leaflets containing remarks as regards the merits of a case pending in the Magistrate's Court.
2. The leaflets have been produced before us and quite clearly they contain a remark that the complaint filed by the Petitioner in the Magistrate's Court at Calcutta is false.
3. On behalf of the Opposite Parties a point has been raised that as proceedings have already been instituted by one Biswanak Agarwalla under secs. 500, 501 and 109, I.P.C, with regard to the publication of the very leaflets which form the subject-matter of the present contempt proceedings, these proceedings for contempt do not lie before this Court in view of the provisions of sub-sec. (3) of sec. 2 of the Contempt of Courts Act, The sub-section is in these words: “No High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.” It is important to mark the words “such contempt.”
4. It is contended on behalf of the Opposite Parties that if by the act by which a party is said to have committed contempt of a subordinate Court, an offence punishable under the Indian Penal Code is committed, then the High Court shall not take cognizance of the alleged contempt, In our judgment this is not the proper interpretation to put on the words used in the sub-section. As we have already stated it is necessary to note carefully that this sub-section does not say that the High Court shall not take cognizance of a contempt alleged to have been committed where the acts alleged to have constituted the contempt amounted to an offence punishable under the Indian Penal Code. Instead of saying that,-it says that the High Court shall not take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Indian Penal Code. To read into this sub-section the sense which Mr. Mukherjee appearing for the Opposite Party has contended for, is to read into it something which the Legislature has not said. In our judgment the only possible interpretation of the sub-section is that where the acts alleged to have constituted the contempt are punishable as contempt under the Indian Penal Code, then only the High Court shall not take cognizance of that contempt under the Contempt of Courts Act.
5. It is interesting to see that when this question was raised in the case of Dharani-dhar Singha Roy v. Satish Chandra Giri(1), their Lordships while not deciding the point, as it was not necessary in the circumstances of the particular case, did say that there was considerable force in the argument that it is only contempts punishable as such under Chapter X of the Code (e.g, an offence punishable under sec. 173, I.P.C) that are excluded from the purview of the Contempt of Courts Act. Our attention has been drawn to certain observations of Sanderson, C.J, in the case of Vernon Milward Bason v. Ann Helen Skone(2). It was argued in that case there “that even if the action of the Appellant did constitute contempt of Court, the learned Judge ought not to have invoked the jurisdiction, which is inherent in this Court, and should not have called upon the Appellant to show cause why he should not be committed for contempt, first, because the matter was one which could have been investigated fully and dealt with adequately in a Magistrate's Court in Calcutta, and secondly, because there was no necessity for the matter being immediately dealt with, because, in fact, the notice had been served and the proceedings in execution would go on.” Sanderson, C.J, after mentioning this argument in his judgment proceeded to say this: “I think there is considerable weight in that argument and if I had been sitting as a Judge of first instance and had been hearing the application, I feel sure that I should have rejected it and should have held that the proper place for this matter to be investigated was the Magistrate's Court in Calcutta. I do not think that this was a case in which it was necessary to invoke the special jurisdiction which is inherent in this Court, by way of an application for committal for contempt of Court.”
6. It is important to note that in this case, the question of interpretation of sec. 2 (3) of the Contempt of Courts Act was not before the Court at all. The observations are all as regard the propriety of contempt proceeding in the circumstances mentioned, and are not on the interpretation of sec. 2 (3) of the Contempt of Courts Act.
7. It is worth noting also that after the observation mentioned above his Lordship went on to say: “But the position is this: The learned Judge had jurisdiction.” And finally he used these words: “In my opinion it is not necessary for this Court to set aside the decision of my learned brother in order that the matter might be dealt with in a Magistrate's Court in Calcutta.” The appeal from the judgment of Ghose, J., was dismissed. As we read this judgment, we are unable to find in it any authority for the view for which Mr. Mukherjee contends.
8. We are fortified in the view we have taken of sub-sec. (3) of sec. 2 of the Contempt of Courts Act mentioned above by the decisions of the Patna High Court in the cases of Jnanendra Prasad Bose v. Gopal Prasad Sen*(4). In both the cases the clause was interpreted to mean that where under the Penal Code there is already a provision for punishing a contempt of Court as a contempt of Court, the Contempt of Courts Act itself shall have no application. We respectfully agree with this view.
9. Our decision, therefore, is that the Opposite Parties have committed contempt of the Presidency Magistrate's Court. In view, however, of the unqualified apology tendered by them, we do not think any further action is necessary.
10. The Rule is disposed of accordingly.