Harries, C.J:— On the 16th of August, 1940, an application was filed in this Court by the Superintendent and Remembrancer of Legal Affairs, Bihar, praying that this Court should issue notice on the opposite party, Mr. Murali Manohar Prasad, calling upon him to show cause why he should not be proceeded against for contempt of Court, and, after hearing the opposite party, to make such order or orders as this Court might think fit. Exhibited to that application were copies of certain articles alleged to have been printed in a newspaper called the “Searchlight” of which the opposite party is the Editor. On the 19th of August, 1940, the application was placed before the present Bench. We considered the matter and directed that a rule should issue calling upon the opposite party to show cause why he should not be proceeded against and convicted of an offence of contempt of Court. In answer to that rule the opposite party has appeared, and the case has been fully argued before us.

The facts of the case are practically undisputed. On the 26th of July, 1940, an incident occurred at Dinapore which resulted in the death of a young Indian man. In the issue of the “Searchlight” dated the 27th of July, 1940—in fact published on the 26th of July, 1940—this incident is shortly referred to. The paragraph in the newspaper was headed—

“BRUTAL ASSAULT ON INDIAN. ALLEGED EXPLOIT OF BRITISH SOLDIER.

Injured man expires in Hospital”

The article merely mentions that great sensation prevailed at Dinapore where a man is alleged to have been knocked down and severely assaulted by a Tommy. It is also stated that Mr. M.K Sinha, Superintendent of Police, Patna, was personally investigating the case. There is nothing in this article which can in any way amount to contempt of Court. It is only important because it shows that the writer realised that proceedings might well follow because he himself states that the Superintendent of Police was personally investigating the case.

Some time between the 26th and 27th of July, 1940, one Private Barney of the Lincolnshire Regiment, which was stationed at Dinapore, was arrested by the police as being the person responsible for the unfortunate death of this young Indian man. In the issue of the 28th of July, 1940, which was published on the 27th of July, 1940, two articles appeared in the “Searchlight” newspaper. The first article was headed—

“ALLEGED FATAL ASSAULT BY A TOMMY.

Some details of Dinapore Incident.”

In this article details of the incident are given, and it is to be observed that these Statements are given as statements of fact. In the second article of this date which appeared in the “Searchlight” the heading was “THE TOMMY AGAIN”. In this article also the facts of the case are set out and reasons are given why the blow alleged to have been delivered by the soldier concerned must have been a particularly severe one. The writer in this article makes it clear that he fully realised that the incident might become sub-judice at any moment.

It would appear that shortly afterwards Private Barney was brought before the Court of the Committing Magistrate and proceedings there continued for some little time. In the “Searchlight” of the 3rd of August, 1940, appeared another article headed “DINAPORE CITIZENS' DEMAND”. In that article it is stated that the incident had horrified the entire province; but the writer states that he has no desire to prejudice in any way the trial of the Tommy in question. The writer then sets out what Lad happened previously and how the local officials had not succeeded in maintaining law and order. The writer insists on the transfer of the regiment in question to some other station and then mentions what had occurred at a meeting of citizens in Dinapore when a resolution had been passed calling upon Rai Sahib P.C Ghosh not to undertake the defence of the soldier accused Private Barney. Barney was committed to stand his trial at the Court of Session upon a charge under section 304, Indian Penal Code. It is well known in Patna that cases of this kind are triable in the Sessions Court by a Judge and a Jury, and it is clear that Mr. Murali Manohar Prasad must have been aware that Private Barney would in due course be tried by a Judge and a Jury at Patna.

On the 7th of August, 1940, there appeared another article in the “Searchlight” relating to this matter. The writer states that Private Barney of the Lincolnshire Regiment had been committed to Sessions to stand his trial for an offence under section 304, Indian Penal Code, and the writer says “That is something”. He then goes on to mention what had happened in Dinapore over a period of time. Towards the end of the article the writer states what effect this incident, which had resulted in the committal of Private Barney, had upon the general body of citizens of Dinapore.

Shortly after the rule was issued in this case an application was made by the Advocate-General on behalf of the competent Military authority that the case of Private Barney should be transferred for bearing to this Court. This Court, as it was bound to do, transferred the case for hearing here, and the bearing will take place in due course in this Court before a Judge and a Jury. The order for transfer, however, occurred after these articles had appeared and if these articles do amount to contempt of Court such an offence would be a contempt of the subordinate Courts, namely, the Court of the Committing Magistrate and the Court of Session. The case was pending in those Courts and those Courts only when these articles appeared.

It has been urged by the Advocate-General who appeared on behalf of the Legal Remembrancer that the articles in question clearly amount to contempt of the lower Courts in that they contain matter which tends Ito interfere with the due course of justice. It has been urged that the articles create an atmosphere of prejudice against Private Barney and tend to prejudice his case in the minds of the public generally. The Advocate-General concedes that the Editor had no deliberate intention of interfering with or of obstructing the due course of justice; but he contends that such intention is immaterial. If the articles tend to interfere with the due course of justice and are likely so to do, then it is urged that the Editor is guilty whether he intended such a result or not.

The opposite party, Mr. Murali Manohar Prasad, admits that he is the Editor of the “Searchlight” newspaper and admits the publication of the articles complained of. On his behalf a preliminary point was taken that this Court should not entertain the application because it has not been properly made on behalf of the Executive authority, namely, the Governor. In any event the opposite party contends that the articles do not contain any matter which amounts to contempt of Court.

Before dealing with the case, I should like to make one observation concerning the affidavit which was filed in support of the petition. The petition was made by the Legal Remembrancer and was presented in this Court by the Advocate-General, yet I find that the affidavit was sworn by a clerk. Fortunately the facts in this case are all derived from the articles complained of, but even so the affidavit should, in my opinion, have been sworn to by some responsible officer. It is not proper that an affidavit in a case of this kind should be the affidavit of a clerk.

I shall first deal with the preliminary point which was taken on behalf of the opposite party. Sir Manmatha Nath Mukherji, who appeared and who has argued this case with very great ability, has contended that the application is not such as we should entertain. He has urged that the Legal Remembrancer is not a person who can represent the Government or the Executive authority, and he has placed reliance upon a Calcutta case, Legal Remembrancer v. Matilal Ghosh. In that case certain observations were made which would suggest that the Legal Remembrancer was not a person who could represent the Governor of Bengal in Council in a matter on the Original or Crown Side of the Calcutta High Court. That was a case in which a Bench of the Calcutta High Court had been asked to issue a rule relating to contempt of Court, and it appears to have been made clear when the Bench was moved that they would only take action if they were assured that the application was being made on behalf of the Governor of Bengal in Council. The application on the face of it was made by the Legal Remembrancer; but the Bench appears to have been assured that an amendment would be made, making it clear that the application was being made on behalf of the Governor in Council. As the matter was urgent, notices of motion were served on the opposite parties; but when the matter came for hearing it was found that no amendment had been made and that the Legal Remembrancer was still the applicant. Jenkins, C.J pointed out that the representatives of the Crown had not carried out their undertaking and that the application which had been issued on the understanding that the applicant was the Governor in Council was not the application which was then before the Court. Further, it appears to have been conceded in the case that the Legal Remembrancer was not a person who could represent the Governor in Council on the Crown or the Original Side of the Calcutta High Court. In any event, the question was not finally decided, because an amendment was permitted so that the Governor in Council should be properly represented. This case appears to me to be a rather special one governing the procedure in Calcutta, and I do not think that it lays down any general principle that the. Legal Remembrancer cannot possibly represent the Government or the Governor in cases of this kind in Bihar.

In the province of Bihar the position of the Legal Remembrancer is governed by certain rules which have been published by the Government. He is the Chief Law Officer of the Government and it is his duty to superintend and advise on the conduct of all litigation, criminal and civil, to which Government may be a party or with which Government is in any way concerned. He is also ex-officio Public Prosecutor in all cases coming before the High Court of Judicature at Patna or before any other Court in the province; Further, as Chief Law Officer of the Government it is the duty of the Legal Remembrancer, in criminal matters, to instruct the Government Advocate when necessary in relation to cases coming before the High Court. The definition of his duties given in the Government Rules appears to me wide enough to empower him in a case of this kind to move on behalf of Government or the Governor and to instruct the Advocate-General to carry on proceedings for contempt in this Court.

In any event the matter is not, in my view, important. There can be no question that this Court of its own motion can issue a rule calling upon a person to show cause why he should not be committed for contempt of this Court. This is clear from the case of In re Murali Manohar Prasad in which it was held that under clause 28 of the Letters Patent of this Court a Divisional Bench has power to issue a rule to show cause against committal for contempt. In that particular case which was decided by five Judges, a rule had been issued by this Court on its own motion. Sir Manmatha Nath Mukherji concedes that this Court can issue a rule of its own motion in cases where contempt of this Court is alleged. He, however, urges that this Court has no such power if the contempt alleged is a contempt of a subordinate Court. He has argued that, before this Court can take cognizance of any contempt of a subordinate Court, a proper application must be made either on behalf of the Government or Governor or a report must be received from the subordinate Court concerned. In my judgment the powers of this Court with regard to the contempts of subordinate Courts are precisely the same as its powers with regard to contempt of this Court itself. The powers of a High Court with regard to contempts of subordinate courts are dealt with in the Contempt of Courts Act (Act XII of 1926). Sub-section (1) of section 2 is in these terms:—

“Subject to the provisions of sub-section (3), the High Courts of Judicature established by Letters Patent shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of Courts subordinate to them as they have and exercise in respect of contempts of themselves.”

From this it is clear that the jurisdiction, powers and authority of this Court in dealing with contempts of lower Courts are the same as those of this Court when dealing with contempt of the High Court. Further, the jurisdiction, powers and authority are to be exercised in accordance with the same procedure and practice as that prevailing in the case of contempts of this Court. In short, the sub-section makes it clear that whatever this Court can do in the case of contempt of the High Court it can also do in the case of a contempt of a subordinate Court. If this Court can act of its own motion in a case of a contempt of the High Court, it can also do so in the case of a contempt of a Court subordinate to it. That being so, this Court could, in the present case, have moved without any application being made to it by the Legal Remembrancer. Even assuming that the Legal Remembrancer is not a person who can properly represent the Executive, nevertheless information of an alleged contempt was brought to the attention of the Court by the application. Even if it was not a properly constituted application, this Court could take notice of the contempt alleged and of its own motion issue the rule which it did. In my judgment the Legal Remembrancer could in this case file the present application; but even if he could not, the Court has still jurisdiction to entertain the matter. As the Court could issue a rule of its own motion, the rule would be effective even if the reason for its issue was an application filed by a person not entitled to file it. However the matter is regarded, I am satisfied that this Court has full jurisdiction to deal with this matter, and I would, therefore, overrule the preliminary objection.

Coming to the merits, it is necessary to consider whether the articles or any of them amount to contempt of Court. It has been frequently laid down that any act done or writing published, which is calculated to interfere with the due course of justice, is a contempt of Court, and writings prejudicing the public for or against a party are similarly contempt—see Reg. v. Gray and Roach v. Garvan. It has also been laid down that no intent to interfere with the due course of justice or to prejudice the public need be established if the effect of the article or articles complained of is to create prejudice or is to interfere with the due course of justice. It is of the very essence of the offence that proceedings should be pending when the articles were published. It is not necessary that the accused should have been committed for trial or even for him to have been brought before a committing magistrate provided that he had been arrested and was in custody when the articles were published—see Rex. v. Parke and Rex. v. Clarke.

In the present case it is clear from the articles themselves that Barney was arrested and was in custody either on the evening of the 26th of July, 1940, or on the morning of the 27th of July, 1940. All the articles, therefore, except one were clearly written whilst proceedings were pending, and it must be considered whether these articles tend to interfere with the course of justice or tend to prejudice the public or mankind generally against Private Barney. In my view these articles do tend to interfere with the due course of justice and do tend to prejudice the case of Private Barney in the minds of mankind or the public generally.

Most of these articles are written in unrestrained and often somewhat violent language. They contain most bitter attacks on soldiers of the Lincolnshire Regiment stationed at Dinapore and it must be remembered that Private Barney who is now standing his trial is a private soldier of that regiment. In the article of the 28th of July which is headed “THE TOMMY AGAIN” the conduct of the soldiery at Dinapore is described as the

“white menace of Dinapore which is proving such a terrible strain both on men's nerves and their self-restraint.”

That article refers to numerous assaults committed by the soldiery on both men and women, but it is said that the skin of the soldiers seems to afford them perfect protection. Towards the end the writer suggests that if the authorities

“do not possess the necessary strength and ability to control the ragamuffins that parade in the garb of Tommies they had better remove the regiment from Dinapore and take it to some place where white skin may clash with white and produce more pleasurable sensation.”

I am merely quoting these examples to show the nature of the criticism. It is violent criticism, and it may or may not be true. There can be no doubt that the articles would create prejudice against soldiers at Dinapore; but if the matter had rested there, I would not have held that they tended to interfere with the due course of justice in this case. The writer is entitled to comment and comment severely upon incidents which he thinks deserve comment. If his comment is unjustified, persons injured by such comment have ample redress under the Law of India. Comments generally on these incidents cannot amount to contempt. Unfortunately, however, in dealing with other incidents and with the incident which resulted in the death of this unfortunate young man, the writer and publisher has dealt with facts and has commented on them in such a way as to bring the articles within the ambit of contempt of Court. Had the articles consisted of criticism, no matter how severe, of what had happened in the past and what was then happening at Dinapore, no offence of contempt would have been committed. However, in these articles there are references to the incident which has resulted in the commitment of Private Barney, and these references do, to my mind, tend to prejudice the case of Private Barney and do tend to interfere with the due course of justice.

It must be remembered that Private Barney is to be tried by a Judge and a Jury. The “Searchlight” newspaper has a wide circulation in Patna and the surrounding districts. The case was committed for trial in the Sessions Court at Patna, and in that Court the jurors who would hear it were just the kind of people who would have read these articles when they appeared.

In the article appearing in the “Searchlight” of the 28th of July which is headed “Alleged Fatal Assault by a Tommy”, the facts of the case are set out. The paragraph opens with these words:

“Further details available about the death of the Indian as a result of the alleged brutal assault committed on him by a European soldier at Dinapore…………………………….”

That sentence is harmless. The writer then goes on to say:

“It so happened that yesterday morning at about 7-30 or so he (that is, the deceased) was passing on the Dinapore-Maner Road in front of the Military Guard Room when the change of guard was taking place. The man was stopped from proceeding further by a Tommy. But probably not following the Tommy's order given in English the man proceeded ahead. This seems to have irritated the soldier who severely assaulted the villager who fell down unconscious, bleeding profusely from his ears, nose and mouth. He was removed to the hospital where he ultimately succumbed.”

At the close of the paragraph it is said that “the alleged culprit had been arrested”. In this article the facts of the case are stated without any qualification, and anybody reading the article would be bound to come to the conclusion that the assault committed on this young Indian was a brutal assault committed without any justification of any kind. Whether it was such an assault or not is a matter which a Jury will have to decide. No one has a right to prejudge the case and to state what he regards to be the true facts whilst the case is pending. Towards the close of this article the writer also charges Private Barney or his associates with a piece of almost unheard of callousness. It is said

“In this connection it is also alleged that some shop-keeper wanted to give a little water to the poor victim of the Tommy's wrath but he was prevented from doing so.”

This may or may not have happened, but it is an observation which would undoubtedly tend to prejudice Barney's case in the eyes of mankind.

In the other article appearing in the “Searchlight” of 28th of July, 1940, the facts are again stated in these words:—

“The deceased was passing through the Dinapore-Maner road, which is a public road although a portion of it lies within the cantonment area. Nevertheless, he is said to have been struck by the soldier and struck in a maimer which can only be described as brutal or the result would not have been as serious as mentioned, specially because the victim is reported to have been a well-built and robust young villager who would not have succumbed so easily unless the blow was particularly severe.”

Here the facts are stated and a comment is made on the facts. It is pointed out that the blow delivered must have been a very severe one because it was sufficient to cause fatal injury to a robust well-built young man. Readers could only draw one inference from this statement. Ordinarily a blow will not kill a well-built and robust villager; but as this blow did kill such a man it must have been a terrific one. The remainder of this article contains criticism of what had happened in the past and of the conduct of officials during the past and now.

In the next article which appeared in the edition of the “Searchlight” dated the 3rd of August, 1940, and which is headed “DINAPORE CITIZENS' DEMAND” it is said that the incident had horrified the entire province. The full sentence reads as follows:

“We have no desire to offer any comments on the merits of the case now being heard at Dinapore except to emphasise that the incident has horrified the entire province.”

Now the incident which horrified the entire province is the incident which has resulted in the committal of Private Barney, and it is an incident in connection with which the Jury will have to decide whether Barney is or is not guilty of a serious crime. This incident is said to have horrified the entire province, and it could only do so if the accused was guilty of a brutal or heinous offence. To say that the incident has horrified the entire province must, in my view, prejudice the person who is now standing his trial as a result of this incident. When the true facts are known the province might or might not be justly horrified; but to say so at this stage is, to my mind, to prejudice the case of Barney and to interfere with the due course of justice. Towards the conclusion of this article the following appears:—

“In Dinapore, the transfer of the Regiment in question seems to be the only remedy. The demand, voiced at the meeting in Dinapore, that Rai Sahib P.C Ghosh shall not undertake the defenee of tbs soldier-accused, gives the measure of the state of public feeling.”

In my view this is also a statement which tends to prejudice Barney in the eyes of mankind and tends to interfere with the due course of justice, and it is a statement which should not have been made or repeated. Assuming that a meeting at Dinapore did pass a, resolution calling on the Rai Sahib not to defend Barney, publicity should not have been given to it in the “Searchlight” when Barney's case was pending. The only inference a reader can draw from this paragraph is that the inhabitants of Dinapore were so convinced of the guilt of Barney and so incensed with his conduct that they were of opinion that no decent-minded man should appear on his behalf. That, I am sure, is not the view of the opposite party in this case; but that is the effect which these words would have or might have on persons reading them. I am glad to find that Rai Sahib P.C Ghosh was not influenced by any such resolution and that he continued to do his duty according to the highest traditions of the bar. However guilty a man may be, counsel who is duly instructed must appear and present the man's case to the best of his ability. Rai Sahib P.C Ghosh carried on that tradition. It has been urged that this is a mere statement of what occurred at Dinapore and, therefore, cannot amount to contempt; but in my view this statement, though it merely states what had occurred, does in itself prejudice and prejudice seriously the case of the accused. What would a likely juryman think of the case after he had read that citizens of Dinapore would not consent to have the accused man defended by one of their own lawyers?

The last article which appeared in the “Searchlight” on the 7th of August, 1940, deals in the main with criticism of the conduct of the soldiers and of the conduct of officials. In the later half, however, there appears a paragraph, which, in my view, does tend to prejudice the fair trial of Barney and does tend to interfere with the course of justice. That paragraph is as follows:—

“Is there any wonder the citizens of Dinapore are indignant and agitated? We wonder if the Governor is aware of the scenes witnessed at Dinapore after the fatal assault on the poor Indian villager. The whole of Dinapore was electrified. The hartal observed spontaneously in the town was unprecedented. Moslems vied with the Hindus in the expressions of their indignation so much so that the Moslem League Secretary, bare-headed and bare-footed, was among the foremost in the melancholy procession that hastened to the Sub-divisional Officer to lodge the people's protest against what they regarded as wanton homicide involving the life of a poor Indian. Forgotten were communal and political differences. The outraged Indian heart beat in unison.”

That is, of course, a statement of what is alleged to have taken place in Dinapore and may or may not be true. But assuming it is true, it does not in any way affect the result which the statement would have. The truer the statement the greater would be its prejudice to the trial of Barney. What this statement amounts to is this, that the conduct of the person responsible for the death of this young Indian had so outraged the feelings of the citizens of Dinapore that they had sunk all their differences and had gone to the Sub-divisional Officer headed by a bare-footed and bare-headed Secretary of the Moslem League to register their protest at what they regarded as wanton homicide. Again the writer emphasises the view of the citizens of Dinapore and that view is that this unfortunate young man was killed in circumstances of the greatest brutality and in circumstances which afford no justification of any kind. As I have stated, that view of the case may or may not be true; but it is a view which only the jury trying this case are entitled to express, and the jury are entitled to consider the facts uninfluenced by the views of any other person. Likely jurymen reading the account of this procession to protest against wanton homicide would be most likely to be prejudiced against the accused. In my judgment this paragraph does tend to interfere with the course of justice and does tend to prejudice the public against the accused person Barney.

Sir Manmatha Nath Mukherji has argued that these articles are a mere continuation of earlier articles criticising the conduct of the troops at Dinapore and the failure of the officials—Civil and Military—there to deal with the matter. To some extent that observation is perfectly true. The articles now complained of refer to earlier incidents and may be regarded as a continuation of earlier articles which appeared in March of 1940. Those earlier articles have been exhibited to the affidavit sworn by Mr. Murali Manohar Prasad in this case. As I have stated earlier in this judgment, if these articles now under consideration had merely contained criticism—no matter how severe of the conduct of troops in Dinapore—I should not have held them to amount to contempt though one of the members of the regiment was standing his trial for an offence committed in the Cantonment area. Merely criticising the conduct of troops generally could not, in my view, tend to prejudice the trial of a particular accused for a particular offence, though that offence might have been one of a series for which the troops were being blamed. The incident which now gives rise to the charge against Private Barney was undoubtedly the cause for the resumption of the general criticism of the troops at Dinapore. In the circumstances, particular care was necessary not to make any reference to Barney's case in further criticising the troops. Unfortunately for the opposite party such care was not exercised, and the articles complained of contained not only criticism of the troops generally but also contained matter which directly referred to the incident which has given rise to Barney's trial and matter which created prejudice not against the soldiers generally but against Barney in particular. The effect of the articles is to suggest that Barney is standing his trial for a particularly brutal and wanton act which has shocked not only the citizens of Dinapore but the whole province of Bihar. As I have stated, that may or may not be the view of the jurors who hear the case. They and they alone can pass judgment, and as these articles tend to prejudice the case in the minds of likely jurymen they tend to interfere with the due course of justice and, therefore, amount to contempt.

Sir Manmatha Nath Mukherji argued that even if these articles did amount to contempt of Court it was such contempt that did not need the interference of this Court. At most he urged that the contempt was a technical one.

There can be no doubt that a Court need not and should not interfere in all cases of contempt. It is a very arbitrary method of dealing with an offence and contempt proceedings should be sparingly instituted and a person should not be convicted unless it is essential in the interests of justice that he should be. Judges in the past have laid down time and again that a conviction should only be recorded for contempt when it is necessary in the interests of justice. Reference was made to the case of King v. Dolan. In that case Mr. Walter Long, who was a Member of Parliament, had made a speech which, it was suggested, might tend to interfere with a retrial of certain persons who had previously been tried by a jury which had disagreed. The majority of the Court held that nothing had been said or done which was really calculated to prejudice the fair trial of the accused and, therefore, the application should be rejected. In that case, Sir Manmatha Nath Mukherji urges, there were comments which tended to prejudice the accused's case, but even so the court refused to interfere. It is to be observed that Rankin, C.J in the case of Anantalal Singh v. Alfred Henry Watson, at page 895, observed that Dolan's case was not likely to be followed in India. Dolan's case undoubtedly lays down the proposition that all contempts are not punishable and a Court should only interfere when the words complained of have a substantial tendency to interfere with the due course of justice. Another case relied upon by Counsel for the opposite party is Hunt v. Clarke in which it was held that the publication in a newspaper pending an action or before the trial of an action of any observations which in any way prejudice the parties to the action is technically a contempt of Court. The Court further held that it would not exercise its extraordinary power of committal if the offence complained of was of a slight or trifling nature but only if it was likely to cause substantial prejudice to the parties in the action. Sir Manmatha Nath Mukherji has placed great reliance upon this case. In my view it is clearly distinguishable from the case which this Court is now considering. Hunt v. Clarke was an application for committal of a person who made a statement relating to a civil action which was pending. Two learned Judges of the Queen's Bench Division had come to the conclusion that the statement did not amount to a contempt at all. On appeal the learned Lord Justices of the Court of Appeal were of opinion that the statement amounted to contempt of court, but as it was so trifling, a conviction for contempt should not be recorded. At page 494 Fry, L.J observed:—

“Although I think the paragraph is technically a contempt of Court and does tend to prejudice the minds of the public against the defendant, nevertheless I think the application is of a somewhat trifling and trumpery character. I can hardly imagine any person of much intelligence being influenced by this paragraph, and I cannot think it in point of fact is in any way likely to prejudice the trial of the cause, and, therefore, I think it is a case which the defendant might properly and ought rightly to have passed over without bringing it to the attention of the Court.”

This observation of this most distinguished Lord Justice makes it clear that the Court of Appeal were of opinion that though the words might tend to interfere with the due course of justice or might tend to prejudice the case of one of the parties, it was most unlikely that such would be the result of the article, and that being so the Court of Appeal refused to find the publisher guilty of contempt. Can it be said in the case now before the Court that these articles were unlikely to effect the minds of the readers of the newspaper in Patna? There can be no doubt that newspapers have a very great influence upon the reading public in this country, and in my judgment it cannot possibly be said that these articles could not influence the minds of any intelligent persons reading them in Patna. The present case is clearly distinguishable from the case of Hunt v. Clarke which has been relied upon by the opposite party.

Another case upon which great stress has been laid is the case of Anantalal Singha v. Alfred Henry Watson to which I have already made reference. In that case a Bench of the Calcutta High Court presided over by Rankin, C.J refused to convict for contempt on the ground that though the words complained of amounted to a technical contempt, they did not tend substantially to interfere with the due course of justice: in other words, there was no real probability that any prejudice or injustice would follow from the publication of the matters complained of. In that case it is expressly said that the matters complained of were not substantial and there was no real danger of them having any adverse effect upon the case of the accused persons. In my judgment this case also is clearly distinguishable from the case which we have now to consider.

Sir Manmatha Nath Mukherji has also relied upon a number of English cases, including In re Clements v. Erlanger and In re New Gold Coast Exploration Company. In these two cases the courts followed the same principle, namely of refusing to commit for contempt in cases where it was unnecessary for the court to interfere. In re Clements was a case in which a solicitor was concerned. The Court of Appeal, disagreeing with the learned Vice-Chancellor, came to the conclusion that no contempt had been committed by the solicitor and, therefore, the case can be of no assistance to the opposite party in the present case. In In re New Gold Coast Exploration Company the Court expressly held that the circular could not in any way interfere or prejudice the due trial of the matter, and, therefore, was not a contempt of Court. In the present case I am of opinion that the articles complained of do tend to prejudice and tend to cause substantial prejudice, and that being so the present case is clearly distinguishable from the English authorities to which reference has been made. Another case relied upon by Sir Manmatha Nath Mukherji is King v. Freeman's Journal. Reliance was placed upon certain observations of Lord O'Brien in that case; but those observations merely reiterate the principles enunciated in the earlier cases to which I have referred. I respectfully agree that a mere technical contempt of Court is not sufficient to warrant this Court interfering and convicting the opposite party. There must be something more than a mere technical contempt, there must be a substantial contempt: that is, something which tends in a substantial manner to interfere with the course of justice or tends substantially to prejudice the public against Barney. In my judgment in the present case the articles do create a real tendency to interfere with the due course of justice and do create a substantial prejudice against the case of the accused person. In my view the authorities to which I have referred can afford no assistance to the opposite party because I am satisfied that in this case there is a danger of grave prejudice and a danger of substantial and real interference with the due course of justice.

Before concluding this part of my judgment, I should like to refer to the case of P.S Tuljarama Rao v. Sir James Taylor which was cited to us by Sir Manmatha Nath Mukherji. In that case a Special Bench of the Madras High Court held that the opposite parties were guilty of contempt of court but not such contempt as would compel the court to interfere. Sir Manmatha Nath Mukherji has urged that one observation of Leach, C.J is strongly in his favour. The learned Chief Justice observed:

“The power to commit for contempt of Court is not to be lightly used and should be reserved for cases where the contempt is deliberate and of such a nature that committal is called for. In the present case all that can be said is that the respondents acted without due consideration. They have all expressed their regret to the Court and we think that the matter may be left there. Sufficient has probably been said to prevent a similar situation arising in future.”

It is contended that this Special Bench case lays down that a person should in no case be convicted of contempt of Court unless the contempt was deliberate in the sense that the person charged intended to interfere with the due course of justice or intended to prejudice the trial of a cause or the trial of a criminal case. In my view the learned Chief Justice did not mean that no conviction can be recorded unless there is a deliberate intention to interfere with the course of justice. The facts of that case are unusual and disclose a contempt but not a contempt of a serious kind and one which was committed in all probability, because the respondents acted without due consideration. An application for winding up of a Bank was pending in the High Court, and during the investigation of the affairs of the Bank Sir James Taylor, the Governor of the Reserve Bank, had been consulted. After a preliminary investigation by officials of the Reserve Bank, Sir James Taylor wrote to the Prime Minister of Madras recommending that the liquidation proceeding should be allowed to proceed as it was in the best interest of the depositors. The writer stated that he had no objection to the publication of the contents of the letter, and it was published in a number of newspapers. The Court held that the letter was written with an honest motive and that the writer had no intention whatsoever to influence the Court. In those circumstances, the Special Bench held that though the letter amounted to contempt it was not such a contempt as required the Court to take notice of it. On the question of motive of intention Leach, C.J, at page 474, observes: “To comment on a case which is subjudice or to suggest that the Court should take a certain course in respect of a matter before it undoubtedly constitutes contempt and honesty of motive cannot remove it from that category.” When the whole judgment of the learned Chief Justice is read it is clear that he does not hold that an intent to commit contempt is necessary to maintain a conviction.

It has always been laid down in England, and indeed in this country, that the writer of an article can be guilty of contempt without intending to interfere with the due course of justice. An article written with the deliberate intention of interfering with the due course of justice would be an extremely serious matter meriting very serious punishment. He can, however, be guilty of writing an article which tends to interfere with the course of justice without intending so to interfere. The test has always been not what the writer intended but what effect the words would have upon readers. In my judgment the case of Tuljarama Rao v. Sir James Taylor cannot be regarded as dissenting from the long-established view relating to cases of this kind. Once it is held that words are likely to cause substantial interference with the due course of justice or are likely substantially to prejudice the hearing of a case or the trial of an accused person then the writer of such an article is guilty of contempt whether he intended such results or not. The question of intention is irrelevant in considering whether the offence has been committed, though, of course, it is a most important matter in considering the appropriate sentence to be imposed.

Sir Manmatha Nath Mukherji also contended that as his client had no intention of continuing these articles he should not be convicted. An expression of an intention not to repeat an offence cannot affect the question whether the offence committed is a serious one requiring action on the part of the Court.

Counsel also contended that no prejudice could result from these articles because of the warnings which would undoubtedly be given to the jurors by the presiding judge at the trial. Such warnings are invariably given in criminal jury trials, yet Courts have committed for contempt in all cases where substantial prejudice was likely. The fact that such warnings will be given cannot afford the opposite party any assistance.

For the reasons which I have given, I am satisfied that the opposite party in this case has been guilty of contempt of Court, and that being so he must be found guilty and convicted.

The only question which remains is that of sentence. As I have stated earlier in this judgment, the Advocate-General conceded that the Editor of the “Searchlight” had no deliberate intention of interfering with the course of justice or of prejudicing the case of Private Barney. That is a circumstance in his favour. The matters which he published, however, have in my view, such a result and the matter is made worse because series of articles were published. Articles were published after the arrest and one even after the accused had been committed to trial at the Court of Session. Further, the opposite party has expressed no regret but has insisted throughout that he has not committed any offence. Had an apology been tendered, it would have been open to us to have considered that in dealing with the question of sentence. Section 3, Contempt of Courts Act, expressly provides that the accused may be discharged or the punishment may be remitted on apology being made to the satisfaction of the Court. No such apology, however, has been tendered. Though I do not regard this as an extremely serious case of contempt, it is a case in which punishment must be inflicted. In my view the opposite party must pay a fine of one hundred rupees and also pay the costs of this proceeding which I assess at one hundred rupees. The fine must be paid by Friday, the 4th of October, 1940, and in default of payment of the fine the opposite party must undergo simple imprisonment for a period of one month.

Dhavle, J.:— I agree.

Sir M.N Mukherji for the opposite-party has urged as a preliminary objection that the Legal Remembrancer for whom the Advocate-General obtained this rule from us had no locus standi in this matter. The contention was rested on Legal Remembrancer v. Matilal Ghose; but the circumstances of that case are quite different from the present case. It was a case on the Crown or Original Side of the Calcutta High Court, and the Bench had only given special leave to serve notice of motion on the Advocate-General's statement that he moved on behalf of His Excellency the Governor of Bengal in Council, the Legal Remembrancer not being authorised to represent the Government on that side of the Court. We have no Crown side in this Court, and there is no question here of giving special leave to serve notice of motion at the instance of His Excellency the Governor. It is, however, unnecessary to pursue this aspect of the matter, since the position has become very different under the Contempt of Courts Act (Act XII of 1926), which was passed about 13 years after the Calcutta decision. Under section 2(1) of the Act, subject to the provisions of sub-section (3) (which only bars cognizance of contempts of subordinate courts where they constitute offences punishable under the Indian Penal Code), this Court is to “have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it”, as it has and exercises in respect of contempts of itself. There is no dispute that this Court, being a Court of Record under clause 1 of our Letters Patent, has inherent jurisdiction to deal with contempts of itself; and Sir M.N Mukherji has not contended that in respect of such contempts this Court cannot act suo motu. This power to act suo motu becomes available under section 2 of the Contempt of Courts Act when we have to deal with contempts of courts subordinate to us, as in the present case; and if we can act suo motu in such cases, it becomes entirely immaterial whether or not the Legal Remembrancer on whose behalf the rule was obtained had any locus standi to move us, to say nothing of the fact that the alleged contempt relates to a criminal trial in which he has a definite interest as part of his official duties. The preliminary objection, therefore, fails.

The law applicable to this case seems to be well established. It is contempt of court to publish a newspaper article containing comments on the facts of a case which is pending in a court or is about to come before a court, if the comments are calculated to obstruct or interfere with the course of justice. In such cases the contempt takes the form of “prejudicing mankind against persons who are on their trial raising an atmosphere of prejudice against them by comment which is addressed to the public at large”, to quote Rankin, C.J in Anantalal Singha v. Alfred Henry Watson which, among other cases, was cited by the learned Advocate. The offence does not depend on whether or not the opposite party in fact intended to prejudice mankind against a person who is on his trial and actually raised an atmosphere of prejudice against him, but on whether the articles that appeared in his paper the Searchlight, read fairly, had a tendency to interfere with the administration of justice by prejudicing mankind and raising an atmosphere of prejudice for the trial of Private Barney who was committed to the court of session before the last of the articles placed before us appeared in the Searchlight of the 7th August. It is true not only that the articles more than once expressly disclaim any desire to deal with the merits of the case or to prejudice in any way the trial of the “Tommy in question”, but also that when these articles of July and August are read with those articles of March that the opposite party has put in, the object of the writer seems to have been to get the authorities to take steps to see that what he calls the intolerable situation obtaining in Dinapore for some time did cease. This object by itself has nothing to do with any contempt of court, but in pursuing it the writer has in more places than one commented on the facts of the criminal case, if he has not in effect passed judgment upon it. In the article of the 28th July “The Tommy again”, for instance, the victim is spoken of as being struck in a manner

“which can only be described as brutal, or the result would not have been as serious as mentioned, especially because the victim is reported to have been a well-built and robust young villager who would not have succumbed so easily unless the blow was particularly severe”.

This does not cease to be a comment, if not also a pronouncement on the merits, merely because the article proceeds:

“We are not here concerned with the details, especially because we are told, the police have already taken cognizance of title matter which is under investigation and may become ‘sub judice’. We are referring to the matter here only to impress upon the authorities their own remissness in dealing with the white menace in Dinapore which is proving such a terrible strain both on men's nerves and their self-restraint.”

For the writer to couple the attack on the villager with the “white menace” was to create, possibly in spite of himself, an atmosphere of prejudice, though he was well aware that the matter may become the subject of a criminal trial; and he is so carried away by his feelings that in the next sentence he goes on to say:

“Howsoever the present incident may have taken place and; whosoever may have been responsible for the unprovoked attack on a poor inoffensive Indian young man, the fact is there that incident in which the Dinapore Tommies are concerned are not at all rare.”

Here again, the writer's characterisation of the incident as an “unprovoked attack on a poor inoffensive Indian young man” is a comment and definite pronouncement on the merits of the case. It seems to me impossible to doubt that such comment is calculated to create prejudice and interfere with the administration of justice, however little the writer may have intended to do so. The article of the 3rd August on the “Dinapore Citizens' demand”, intended as it apparently was to impress upon the authorities the necessity of a transfer of the regiment from Dinapore—the writer calls it the only remedy—speaks of the

“demand voiced at the meeting in Dinapore that Rai Sahib P.C Ghose shall not undertake the defence of the soldier-accused”,

and says that this demand “gives the measure of the state of public feeling”. This clearly implies an attempt to deprive the accused of a defence lawyer and thus constitutes interference with the due course of administration of justice, and the statement that such was the state of public feeling could not but tend to create an even wider atmosphere of prejudice for the trial. The article of the 7th August on the “Dinapore situation”, says:

We note, of course, that the accused has been charged under section 304, Indian Penal Code, for which a prima facie case, in the opinion of the magistrate, seems undoubtedly to have been made out. That is something.”

The Advocate-General has argued that this suggests either satisfaction that the magistrate has found a case against the accused or an expectation that the accused should have been charged under section 302. Sir M.N Mukherji's reply to this is that the remark “that is something” meant no more than a recognition of the fact that some steps had at last been taken by way of dealing with what the writer refers to in the next sentence as “the intolerable situation obtaining at Dinapore for some time”. It seems to me that in this context this latter is the correct view to take of the remark in question. But in the same article we find a reference to the

“scenes witnessed at Dinapore alter the fatal assault on the poor Indian villager. The whole of Dinapore was electrified……………… the melancholy procession that hastened to the Sub-divisional Officer to lodge the people's protest against what they regarded as wanton homicide involving the life of a poor Indian”

The writer has taken care in this to attribute to the “people” the view that the incident was a “wanton homicide involving the life of a poor Indian”. But it is idle to say that this does not imply any comment by the writer at all, and that the writer only mentioned what the people of Dinapore felt. The people of Dinapore were not at liberty to comment on pending proceedings in that way—nor the writer of the article to publish that comment—if it tended to create an atmosphere of prejudice and interfere with the course of justice; and that it did so seems plain beyond argument. On a fair reading of all the articles that have been placed before us, it becomes impossible to accept Sir M.N Mukherji's contention that they are not likely to obstruct justice. Their tendency to interfere with the administration of justice by creating an atmosphere of prejudice is unmistakable. The trial of Private Barney is to be by Jury, and though the Jury has yet to be empanelled, any Juror who may have read these articles will hardly find it easy to escape prejudice against the accused, or possibly as a reaction against the vehement language, in favour of the accused—it is immaterial which. The articles, therefore, do constitute a form of contempt which, as Rankin, C.J said, the Court always watches very narrowly.

Sir M.N Mukherji has also argued that even if, notwithstanding the writer's object of merely getting the serious situation, the “white menace”, at Dinapore dealt with without delay by the authorities, it be held that the articles do constitute contempt of Court, it is not such a contempt as this Court is required or would be justified in dealing with summarily in the exercise of this arbitrary jurisdiction. In support of this contention, the learned Advocate referred, among other cases, to Hunt v. Clarke, King v. Dolan and Anantalal Singha v. Alfred Henry Watson. As was said by Rankin, C.J in the last case: “The Court's jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. It is not every theoretical tendency that will attract the action of the Court in its very special jurisdiction. The purpose of the Court's action is a practical purpose, and it is reasonably clear, on the authorities, that this Court will not exercise its jurisdiction upon a mere question of propriety where the tendency of the article to do harm is slight and the character and circumstances of the comment is otherwise such that it can properly be ignored”. Now, can it be said in the present case that the articles at all come within the description of mere improprieties of a theoretical character that can be ignored? The learned Advocate argued that if any atmosphere of prejudice be created, it would be due not to these articles but to the public of Dinapore. He has also pointed out that when Private Barney comes to be tried by Jury, the jurors will be sworn to decide the case on the evidence given before them, and on that evidence alone (the form of oath being “give a true verdict according to the evidence”), and that the Judge will also charge them to the same effect. He has further referred to a statement in the affidavit filed on behalf of the opposite party that an order has been recently served upon him under the Defence of India Rules in effect preventing him from writing on this subject for three months. Upon this it has been argued that as the object of the exercise of this summary jurisdiction in contempt case is preventive, there is no reason why this Court should take any further action against the opposite party. It seems to me that these arguments are rather mixed. There may or may not be public demands in Dinapore of the kind indicated in the articles. We have really nothing to do with that on the present occasion. The opposite-party cannot escape responsibility for the tendency of the articles to create an atmosphere of prejudice merely by taking shelter under what he calls public demands from Dinapore. The oath of the jurors and the Judge's charge with the proper directions to the jury will be there in every case which is tried by Jury. The order under the Defence of India Rules does not deal with the opposite party for contempt of court at all; nor are contempt proceedings confined to mere prevention of a repetition of the offence by the particular offender. I am entirely unable to accept the contention of the learned Advocate that the contempt in the present case is of a character which can be properly ignored. It is true that the opposite party does not seem to have intended to commit contempt of Court. His object, repeatedly expressed, seems to have been to get the authorities to move quickly in the matter of the conduct of the soldiers at Dinapore; but in pursuing this object, he seems to have allowed his pen to run away with him and commented on a pending case in a manner which was clearly calculated—and tended substantially—to interfere with the trial and create an atmosphere of prejudice.

I agree with my Lord the Chief Justice in the conviction of the opposite party and the sentence and order proposed.

Order accordingly.