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TMI Blog1913 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... 22nd May, 1913, constituted serious contempt of Court, the Advocate-General, on the 6th of June, made an application to a Divisional Bench with a view to proceedings being taken against two persons on the ground that one of them was the editor and manager, and the other the printer and publisher of the Amrita Bazar Patrika newspaper. 4. The Advocate-General purported to apply on behalf of an officer of the Government of Bengal, whom he described as the Superintendent and Remembrancer of Legal Affairs and ex officio Public Prosecutor, Bengal. 5. It appeared to the Division Bench that there might be a difficulty as to an application by the officer so described, and on this being brought to his notice, the Advocate-General stated to the Court that he was moving on behalf of His Excellency the Governor of Bengal in Council. Leave was accordingly given to the Advocate-General to move on behalf of the Governor of Bengal in Council and not of the officer described as Legal Remembrancer. An order was accordingly drawn up in the following terms: "The Advocate-General of Bengal stating that he moves on behalf of His Excellency the Governor of Bengal in Council and at the instance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case like the present: Queen v. Stanger 1871 L.R. 6 Q.B. 352. It was suggested by the Advocate-General that there was no denial by Babu Matilal Ghose, but, as pointed out in the Queen v. Stanger 1871 L.R. 6 Q.B. 352 and indeed is obvious, a man in a criminal proceeding need not deny that which is not legally proved against him. Even in a civil proceeding, a statement on information and belief is not admissible, except on an interlocutory application, and then the grounds of such belief must be stated. There certainly was no admission by Babu Matilal Ghose, for he had not time to file an affidavit by reason of the late service on him of the notice of motion, and it was stated before us that he was actually in a position to deny the allegation. The materials, therefore, necessary to fasten responsibility on him were wholly wanting. The suggestion on the part of the Advocate-General that we should at that stage permit further affidavits or evidence was opposed to the conditions on which alone he obtained leave from the Division Bench to serve notice of motion, as well as to the rules of this Court. Realising his difficulty, the learned Counsel withdrew his motion as against Babu Mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tempt of an inferior Court, and drew our attention to a series of blunders in the procedure, which, he claimed, vitiated the proceedings. 14. There undoubtedly have been blunders which should not have found a place in so important an application. One has resulted in the dismissal, of the motion with costs against one of the respondents at the very outset of the case. With that I have already dealt and I need not notice it further. That on which reliance has principally been placed on behalf of the printer and publisher--whose name, by the way, has been incorrectly given--is that the notice of motion is expressed to be on behalf of the Superintendent and Remembrancer of Legal Affairs and ex officio Public Prosecutor. 15. This is contrary to the condition on which leave to serve notice of motion was given, and the irregularity is the less excusable because this matter was discussed and determined at the time; and our order of the 6th June expressly refers to and embodies the Advocate-General's statement that he moved on behalf of His Excellency the Governor of Bengal in Council. It was for such a motion and that alone that leave was granted. No leave was granted for the motion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t William. It was provided by Section 8 that upon the establishment of such High Court, the Supreme Court and the Court of Sudder Dewani Adawlut and Sudder Nizamut Adawlut should be abolished, and that the records and documents of the several Courts so abolished should become and be records and documents of the High Court. 21. By Section 9 it was enacted that "The High Courts to be established under this Act should have and exercise all such Civil, Criminal, Admiralty and Vice-Admiralty, Testamentary, Intestate and Matrimonial Jurisdiction, Original and Appellate, and all such powers and authority for and in relation to the administration of justice in the Presidency for which it is established as Her Majesty might by Letters Patent grant and direct, subject, however, to such directions and limitations as to the exercise of Original, Civil and Criminal Jurisdiction beyond the limits of the Presidency town as might be prescribed there by: and save as by such Letters Patent might be otherwise directed and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council the High Court should have and exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice and the said Puisne Justices; shall severally and respectively be and they are all and every of them hereby appointed to be Justices and Conservators of the Peace and Coroners, within and throughout the said provinces, districts and countries of Bengal, Behar, Orissa and every part thereof; and to have such jurisdiction and authority as our Justices of our Court of King's Bench have and may lawfully exercise within that part of Great Britain called England by the Common Law thereof; and we farther will and ordain that all judgments, rules, orders and acts of authority, or power whatsoever, to be made or done by the said Supreme Court of Judicature at Fort William in Bengal shall be made or done by and with the concurrence of the said four Judges or so many or such one of them, as shall be on such occasions respectively assembled or sitting as a court, or of the major part of them so assembled and sitting; provided always, that in case they shall be equally divided, the Chief Justice or in his absence the senior Judge present shall have a double or casting voice." 27. By Clause 21 the Court of Requests and Court of Quarter Sessions erected and established at Fort Will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Patent, or prescription (see Bacon's Abridgement, Vol. II p. 392; Stephen's Commentaries Vol. III). 32. Not only then is there nothing to show that the Nizamut was created a Court of Record by Act of Parliament, Letters Patent or prescription, but it is not a King's Court, being only a Company's Court, and in theory derived its jurisdiction and authority, not from the British Crown, but from the country Government in whose name the Company acted. (See Ilbert's Government of India, 1st Edition, page 46). 33. But if it was not a Court of Record, then it is difficult to see what power it could have had to commit. McDermott v. Judges of British Guiana I. L.R.1868 . 341 Kochappa v. Sachi Devi I.L.R..1902 494. 34. This view is fully borne out by a circular order of the Sudder Nizamut of the 3rd of February, 1843, to be found in the collection of orders brought out by Mr. J. Curran. It appears from that order that it was brought to the notice of the judicial, authorities that Act. XXX of 1841 was the only law under which contempt of, court could be punished. 35. Act XXX of 1841 is an Act for repressing obstructions to justice in certain courts, of the East India Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attachment for contempt of court. This contempt consisted of the publication of articles in a newspaper calculated to give an exceedingly unfavourable impression of a prisoner, who had been arrested and brought before the Magistrate. The publication was while the case was still before the Magistrate and prior to committal. It was held that the High Court had power to attach, first, because the case might come to the assizes for trial, and secondly, because, even if the committal had actually been made to the quarter session, still the King's Bench Division, as the inheritor of all the jurisdiction and powers of the Court of King's Bench, possessed this summary power of punishment. 42. It was on the second of these two grounds that the Advocate-General relied in his opening. 43. This phase of Rex v. Davies [1906] 1 K.B. 32 demands close attention in order to see whether it rests on reasoning which can legitimately be applied here. Certain links in that chain of reasoning are evident: others perhaps are not so clear. 44. First then, the jurisdiction assumed in Rex v. Davies [1906] 1 K.B. 32 was inherited, if at all, from the old King's Bench and not from the other Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than the legitimate application to now circumstances of the old principles of the Common Law. 50. Those principles of the old Common Law must I think, be that the Court of King's Bench as the "custos morum" had jurisdiction to punish on a summary proceeding as well as on indictment or information all offences in the kingdom being a contempt of Court as tending to interfere with the administration of justice. When the Court so impeded or embarrassed was an inferior Criminal Court, unable to protect itself but under the superintendence and control of the Court of King's Bench, the case was one in which it would be right that the Common Law principles should be applied on a summary proceeding. 51. Have we then these powers? Has this High Court Common Law powers that would enable it to punish as an offence, on a summary proceeding, conduct in relation to a proceeding in a mofussil Criminal Court and not in the face of that Court, such conduct not being an offence under the Indian Penal Code, Act XLV of 1860? The preamble of this Act shows it was intended to be a general Penal Code for British India, but it contains no specific repeal of the penal laws then in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Attoney-General, who afterwards became the Lord Chancellor, Lord Thurlow was altered by the Solicitor-General, who afterwards became the Lord Chancellor, Lord Loughborough, and was revised by the Chief Justice of the Common Pleas, and by Earl Bathurst, then the Lord Chancellor of England. Its parentage therefore was above reproach. 56. But however that may be, the Courts and Magistrate which are indicated in Clause 21 are those, not of the mofussil but of the Presidency town, and I am not aware of any statutory jurisdiction possessed by the Supreme Court over mofussil Magistrates except as provided in 53 George III c. 155, or in relation to offences against them (if I may use that phrase) except to the extent indicated in Act XXX of 1841. 57. It is true that the High Court not only has superintendence over the courts of mofussil Magistrates, but also is a Court of Record; if I am right, however, in my reading of Rex v. Davies [1906] 1 K.B. 32 superintendence does not give jurisdiction, while the power of the King's Bench to punish for interference with the lower courts did not arise from its being a Court of Record but from its Common Law powers as custos morum. I h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assumption that the normal procedure will be followed. And in support of this I may recall the fact that though counsel in Rex v. Davies [1906] 1 K.B. 32 relied on the possibility of removal of the case into the High Court by certiorari, it was apparently not regarded as deserving of notice in the judgment. I therefore put aside the contingency, which on the materials before us is remote, of the case coming before this Court on original trial. 60. But it may come before us on appeal, either at the instance of any person convicted (Criminal Procedure Code Section 410), or conceivably though not probably, at the instance of the Local Government in the event of an acquittal (Section 417 of the Code). If the appeal were by the accused, the result of the trial would go to show that there had been no serious interference with the course of justice to the prejudice of the prosecution. 61. Now this Court is a Court of Record in all its jurisdictions, and it thus has power to commit for any contempt in relation to any of those jurisdictions: In re Abdool and Matab (1867) 8 W.R.Cr. 32. 62. Thus I have no doubt that were there to be an interference with the due administration of justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, no ground has here been shown for its exercise. 65. At the outset it has to be borne in mind that what might have been a contempt of the inferior court would by no means necessarily be a contempt of this Court. Thus an attack upon the Magistrate any endeavour to corrupt him, or any direct obstruction of his proceedings would not, speaking generally, be a contempt of this Court. 66. And the only way in which it could be contended, in the circumstances of this case, that there had been a contempt of this High Court, would be perhaps by showing that witnesses had been attacked, deterred and frightened, to use the language of Blackburn J., in Skipworth's Case (1873) L.R. 9. Q.B. 230, or in some manner dissuaded, hindered or prevented from giving evidence. 67. After careful and repeated consideration of the impugned articles, I come unhesitatingly to the conclusion that, whatever censure they may merit, they do not come under that particular censure. 68. The Advocate-General has taken us through the articles in minute details and has represented to us with insistence that in some respects their culpability could hardly be exceeded. He appears to me to have formed an exaggerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle a contempt of this Court. There is no denial of guilt, on the contrary the wish is expressed that the guilty should be arrested and punished. And I am unable to hold that witnesses would be deterred from giving evidence by reason of this attack on police methods or of anything contained in the articles. I have examined and re-examined the articles to see if they could reasonably produce this consequence, but I come without doubt to the conclusion that they could not. And indeed this was not the principal attack made on them in argument. 73. I purposely refrain from quoting the articles, or extracts from them, at length, for it would serve no useful purpose, but there are one or two passages to which I must refer because they have been made the subject of special animadversion by the Advocate-General. In the article of the 22nd of May there is the following passage: "Why should the defendants in the present case, at least such of them against whom there is no positive evidence, be handcuffed or refused bail and made to not in jail before they have been found guilty." Here, it is said, is an assertion that against some of the accused there is absolutely no evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t think I ask too much when I ask in the interests of judicial officers working in the mofussil districts of this Presidency, that the weight of that responsibility should not be increased, however unwittingly, by comments on the cases before them, or on themselves in connection with those cases. I am tempted here to quote the words of Blackburn J., in Skipworth's Case (1873) L.R. 9 Q.B. 230where he said: "It is not right that a Judge... when personal attacks are made on him, should come forward and meet them and explain them, and that is well known to those who make the attack, and certainly that knowledge does in my mind render the conduct of those who attack a Judge in that way, to use the mildest term, neither just nor decorous." The learned Judge was speaking of those who could in some measure protect themselves: how much more forcibly do his words apply to those who have not that power. 79. Then this motion raises a question of high importance, which it would not be right for me to pass by without remark. I allude to the question--what circumstances ordinarily justify recourse to this summary process of contempt. 80. It is not enough that there should be a tec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable doubt. 85. Other opinions to the same effect might be multiplied, but these will suffice as an indication of the care and reserve with which these applications Should be made. I will therefore limit myself to the citation of two cases which give an instructive illustration of the application of these principles. In King v. Dolan (1907) 2 Ir. Rep. 260 proceedings were taken against Mr. Walter Long for a speech delivered by him commenting on a criminal case, and against others as connected with newspapers which published the speech. 86. This speech was an adverse comment on the failure of a jury to convict, made at a time when there was the prospect of a new trial. 87. It was said that language had been employed the use of which was much to be deprecated and the speech was described by one of the learned Judges as capable of having the effect of prejudicing the trial, so that it appeared to him, that in that sense it constituted a contempt. But he goes on to ask, "is the contempt of so serious a character as, in the circumstances disclosed, to call for the exercise of the very special and summary jurisdiction vested in the Court?" His answer was in the negative, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of the case,--no costs were incurred after the amendment of the record by the addition of the Government. 92. But doubtless the Government will defray the costs that thus fall on their officer. Harry Lushington Stephen, J. 93. This matter comes before us on a motion by the Advocate-General, as to the framing of which I have nothing to add to what has fallen from the Chief Justice. 94. The substantial questions that we have to decide are whether the publications complained of constitute a contempt of Court, whether we have power to commit the respondent for having printed and published them, and whether we ought to do so. Dividing the law from the fact, the questions become, first, what jurisdiction have we to deal with this matter, and, secondly, has the respondent been guilty of contempt? 95. On the first point, the facts are of the simplest, and not in dispute. The respondent printed and published in Calcutta comments on events connected with a charge that had been made against a number of persons of an offence under Section 121A of the Penal Code. The offence was said to have been committed in Barisal, and at the time of the publication complained of, warrants had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Court was ever a Court of Record, a characteristic which is a qualification to the exercise of any power to commit. The Sudder Dewani Adawlut became a Court of Record by the East India Company Act of 1780 2 III 70, but it was not till 1793 that the new Sudder Courts were connected by the Judges of one being the same as the Judges of the other, and the difference between the two lasted till the end. If it is argued that as a Court of Record we supply the one thing lacking to the Sudder Nizamat necessary to qualify it to commit, this takes the question out of the realm of inheritance and anticipates arguments that must be noticed hereafter.97. If we have not inherited the power, has it been conferred on us by direct legislation? For myself I can only say that our attention has not been drawn to any such legislation, and that examination of such Acts and Regulations as would be most likely to confer it, if it has been conferred, has not guided me to any. It is true that by their Original Patent of 1774, the Chief Justice and Puisne Judges, our predecessors in the Supreme Court, had such jurisdiction and authority throughout Bengal as Justices of the King's Bench had in England ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing one thai could not in the ordinary course come before it. But after a careful study of the case I am unable to read it as saying that control or superintendence necessarily implies a power to protect. The reasoning on which the decision depends is, as I apprehend it, that the King's Bench control inferior Courts, being "in a special manner the guardian and protector of public justice throughout the kingdom"; it is almost suggested that it might protect Courts of equal authority, such as the Court of Chancery, and only does not do so because they can protect themselves. The power of punishing contempt is not so much to protect the Court or individual Judges from a repetition of offences against them, as to protect the public "specially those who are either voluntarily or by compulsion subject to (the Court's) jurisdiction from the mischief they will incur if the authority of the tribunal be condemned or impaired." To limit the power of committal to attacks on the committing Court would be to act on the wrong principle that the offended dignity of a Court is the subject of punishment. If an unimpeded course of justice is to be secured to inferior Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st consider what their effect really is, and then whether they constitute a contempt that we ought to punish summarily, bearing in mind that we have to consider the matter only from the point of view of an appellate court. The comments were published on the 19th, 20th, 21st, 22nd, 24th, 26th and 30th of May, so that one may fairly be used to indicate the meaning of another; and with them must be considered an article of the 20th May put in by the respondent. 102. It is not necessary to consider the publications complained of in great detail, and it is not easy or perhaps possible to summarise them fairly. I will therefore, only say that they seem to me certainly to contain allegations, or at least suggestions, that the police are collecting evidence unfairly and harshly and may be expected to contrive to bring forward a false case which they have opportunities for doing. Arrests are being made with unusual harshness. If the case is tried before a Special Magistrate, the police will have it all their own way. The case should be tried before a so-called Special Tribunal. These allegations, repeated with details, which need not be considered, and with various florid terms of speech f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities. But in the present case I cannot consider that there is sufficient probability of witnesses being improperly influenced to justify us in committing the respondent. 105. There is good authority for saying that we are to consider the effects of the respondent's action rather than his intentions. But contempt is to be treated as a crime, though it may not be one in India as it is in England, and we do not need the abundant authority that there is on the point to say that, before we commit for a contempt of this character, it must be clearly made out that the course of justice may really be impeded. In the present case this, in my opinion, has not been done. 106. On this view of the facts of the case, this motion must fail even though the law of contempt is stated in the widest terms applicable to the present case, and I do not think it is necessary to say more on the question of what constitutes a contempt, than that any act which tends to impede the course of justice is a contempt, if there is a well proved probability of such being its result. As this test is not fulfilled in the present case, I do not consider it necessary to enquire in further detail into this pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpt of the Court of the Magistrate of Barisal, has this Court jurisdiction to punish the printer and publisher for such contempt; and, thirdly, if this Court has no jurisdiction to punish for contempt of a subordinate Court, do these articles constitute a contempt of this Court, so as to render the printer and publisher liable to be punished for such contempt? 110. In so far as the first of these questions is concerned it is necessary to state that when the application was made on the 6th June last, it was observed by the Court that it purported, on the face of it, to be made by the Superintendent and Remembrancer of Legal Affairs and ex officio Public Prosecutor. The Court declined to entertain the application, till it was stated by the Advocate-General that he moved on behalf of His Excellency the Governor of Bengal in Council. Special leave was thereupon granted to the Advocate-General to serve notice of motion upon the two persons against whom the application was made. Notice was subsequently served, as well upon the alleged editor and manager as upon the printer and publisher. The application, however, it transpired at the hearing, was not amended, and even after special leav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt is bound to Insist that the application on behalf of the Crown should be made with some approach to regularity and accuracy. The Advocate-General has consequently been constrained, at the close of the arguments which lasted for four days, to apply for leave to amend the petition on behalf of the Crown. In the circumstances of this case, the Court decided to grant leave to amend. This is in conformity with the decision of Chitty J. in Callow v. Young (1887) 56 L.J.N.S. Ch. 690. In that case, the learned Judge stated that he would be very slow to give leave to amend the notice of motion, if it were in any way likely that by so doing an injustice would be done to any party; he therefore gave leave to amend the notice of motion, but directed the motion to stand over so that notice might be served again: see also Buist v. Bridge (1880) 43 L.T. 432. Since leave to amend was granted, a certificate has been produced from the Chief Secretary to the Government of Bengal to the effect that the application had been authorised by His Excellency the Governor of Bengal in Council and the petition will be amended accordingly by the addition of the Governor in Council as petitioner. The applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablishment of this High Court are specified in Section 8, namely, the Supreme Court and the Courts named Sadder Dewani Adawlut and Sadder Nizamut Adawlut at Calcutta. Consequently, the fundamental question which requires examination is,--whether, in a matter of the description now before us, any of the abolished Courts had jurisdiction, power or authority to make the order which this Court is now invited by the Crown to pass. Now, in so far as the Supreme Court of Calcutta is concerned, it is manifest from an examination of Stat. 13 Geo. III c. 63 and the Charter of the 26th March, 1774, by which the Supreme Court was established, that the Supreme Court, if it existed now, would have had no jurisdiction to punish the printer and publisher before us for contempt of a court situated beyond the territorial limits of Calcutta. A Criminal Court at Barisal would in no way be subject to the authority of the Supreme Court as is plain from Clause 21 of the Charter of 1774, and even if it were assumed that the Supreme Court, constituted a Court of Record by Clause 2 of the Charter and invested with the powers of the Court of King's Bench by Clause 4, had inherent authority to punish a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her hand, statutory provisions completely negative any possible theory that the Sudder Nizamut Adawlut had inherent jurisdiction to punish for contempts of subordinate Criminal Courts Reference may in this connection be made to Section 22 of Regulation III of 1803 which made a provision for punishment of contempt of Court in open Court. An examination of Regulation XII of 1825, which was passed avowedly for the uniform punishment of contempts of Court in any of the Courts of Judicature, Civil or Criminal, and which repealed Section 59 of Regulation IX of 1793 and Section 28 of Regulation VII of 1803, is also instructive in this connection. This Regulation was repealed by Act XVII of 1862. Meanwhile, Act XXX of 1841 had been placed on the statute book, and thereby it was provided that any person using menacing gestures or expression or otherwise obstructing justice in the presence of an officer trying criminal cases or in any superior or inferior Civil or Criminal Court was liable to pay a fine of two hundred rupees, or, in default of payment, to suffer imprisonment for one month. It was further laid down that where no proceedings had been held under this clause in the Court where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut which was, as we have seen, not a Court of Record nor a King's Court. It has been argued in support of the application that the High Court as a Court of Record has inherent authority to punish for a contempt of a subordinate Court which is subject to its superintendence under Section 15 of the Indian High Courts Act, and over which it exercises appellate and revisional jurisdiction under Clauses 27 and 28 of the Letters Patent of 1865, which replace Clauses 26 and 27 of the Letters Patent of 1862. Now, it is indisputable that a Court of Record has authority to punish for contempt. Sir Barnes Peacock, C.J., observed in In re Abdool and Mahtab (1867) 8 W.R. Cr. 32 that this Court, by the express terms of the Letters Patent, is a Court of Record, and there can be no doubt that every Court of Record has the power of summarily punishing for contempt. To the same effect, is the observation of Lord Chelmsford in McDermott v. Judges of British Guiana (1868) L.R. 2 P.C. 341. See also Kochappa v. Sachi Devi I.L.R.1902 26 494. . This proposition, when applied to cases of contempt of a Court of Record itself, is defended on the ground that the right of every superior Court of Record to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Record, for example in County Courts, this power to punish for contempt is limited to contempts committed in the face of the Court, as indicated by Levy v. Moylan (1850) 10 C.B. 189; 84 R.R. 524 and Queen v. Lefroy (1873) L.R. 8 Q.B. 134. It is fairly clear therefore that the definition of a Court of Record as given by Blackstone and Stephen does not indicate that a Court of Record, whether so by Parliamentary Statute, by Letters Patent or by prescription, possesses as such, any inherent authority to punish a contempt of a subordinate Court. Is there, then, anything in the reasons assigned in support of the principle that a Court of Record can punish a contempt of its own authority which makes them applicable to a contempt of authority of a subordinate Court? Blackstone in his Commentaries (Vol. IV, page 286) declares that "laws without a competent authority to secure their administration from disobedience and contempt would be vain and nugatory. A power, therefore, in the Supreme Courts of Justice to suppress such contempt by an immediate attachment of the offender results from the first principle of judicial establishments, and must be an inseparable attendant upon every sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punish him at all. It is plain that the reasons thus assigned do not indicate that a Court of Record has inherent power to punish for contempt of an inferior Court over which it exercises a power of superintendence and which is subject to its appellate and revisional jurisdiction. On the other hand, it is a fundamental rule that ordinarily one Court cannot punish a contempt against another Court or Judge, and this principle is based on the doctrine that the offence is substantially criminal and the power to punish it is vested alone in the Court whose judicial authority is challenged: Ex parts Bradley (1868) 7 Wal 364, Ex-parte Tilling Hast (1830) 4 Pet 108, Callan v. McDaniel (1882) 72 Ala 96 Tindall v. Westcott (1900) 113 Geo. 114; 15 L.R.A. 225 Atkinson Railway Co. v. Gennison "(1886) 60 Mich. 232; 27 N.W. 6 In re Williamson (1855) 26 Pa. St 9; 67 Am. Deo. 374 Voorhees v. Albright (1879) 28 Fd. Cas. 16999. The position, however, is obviously different where the contempt is against subordinate officers of the Court; such a contempt is rightly regarded as contempt of the authority of the Court by which the officer was appointed, and may be punished on well-recognised princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which may indicate that the growth of the law on this subject has been arrested. That is a question of some nicety, however, upon which I reserve my opinion; but it is plain that the proposition that the High Court in so far as it has inherited the jurisdiction of the abolished Supreme Court possesses inherent common law powers in connection with matters of contempt which were exercised by the Court of King's Bench, is of no assistance in the solution of the problem now before us, namely whether the High Court as a Court of Record can punish for contempt of a subordinate Court over which it exercises powers of superintendence and which is subject to its appellate and revisional jurisdiction. The fundamental distinction between the two questions is easily realised from an examination of the decision in Rex v. Davies [1906] 1 K.B. 32 upon which the Advocate-General relies as the learned Judges of the Madras High Court did in In re Venkat Rao (1911)21MLJ832 . The decision in Rex v. Davies [1906] 1 K.B. 32 is based on the ground that the King's Bench Division has power to punish by attachment contempts of inferior Courts. This conclusion is not based on the ground that the King ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (Pa.) 2; In re Emery (1907) 149 Mich. 383; 112 N.W. 951. Similarly it has been held that although every superior Court possesses an inherent power of employing contempt proceedings to prevent any interference with its administration of justice, Ex parte Fernandez (1861) 10 C.B.N.S. 3, Ex parts Terry (1888) 128 U.S. 289, this power can be exercised only by the superior Court whose authority is being defied: Androscoggin v. Androscoggin (1862) 49 Maine 392 People v. Placer County Judge (1865) 27 California 151. I am not unmindful that in Victoria it was recently held in In re Packer (1911) V.L.R. 401 that where a newspaper has published statements tending to prove that a person accused of murder and remanded to appear before a lower Court was guilty, the Supreme Court had jurisdiction. to punish the members of the staff of the paper for contempt. This decision, however, like the decisions in Rex v. Davies [1906] 1 K.B. 32 and Rex v. Clarke (1910) 103 L.T. 636 has met with weighty adverse comment (25 Harvard L.R. 561) where it is pointed out that although the summary contempt process is allowed on the theory that otherwise the Court would be prevented from the exercise of its prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... something ordered to be done by a court in a civil action for the benefit of the opposing party therein. Consequently, in the case of a civil contempt the proceeding for its punishment is at the instance of the party interested and is civil in its character; in the case of a criminal contempt, the proceeding is for punishment of an act committed against the majesty of the law, and as the primary purpose of the punishment is the vindication of the public authority, the proceedings conform as nearly as possible to proceedings in criminal cases. It is conceivable that the dividing line between the acts constituting criminal and those constituting civil contempts may become indistinct in those cases where the two gradually merge into each other. But, in ordinary cases the line of demarcation is not difficult to determine: Scott v. Scott [1913] A.C. 417. Reference may in this connection be made to the judgment of Lord Hardwicke in the case of In re St. James Evening Post (1742) 2 Atk. 469; 26 E.R. 633 where the Lord Chancellor observed as follows: "There are three different sorts of contempt. One kind of contempt is, scandalising the Court itself. There may be likewise a contempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and though that Court is subject to the appellate and revisional jurisdiction of this Court, has no power to punish for contempt of the Court of the Magistrate at Barisal. 115. As the second question has been answered in the negative, the third question now requires consideration, namely, do these articles constitute a contempt of this Court, so as to render the printer and publisher liable to punishment for such contempt? This aspect of the matter was not developed, possibly not even appreciated, on behalf of the Crown, but it merits examination, as it is the only possible ground upon which the present application may be supported with any semblance of plausibility. Before I proceed to consider the articles, it is necessary however to premise that conduct which amounts to contempt of a subordinate Court does not necessarily amount to contempt of a superior Court. It is not essential for the present purpose to specify exhaustively the various acts which may constitute contempt. Blackstone in a celebrated passage of his Commentaries (Vol. IV, page 285) specifies some of them: "Some of these contempts may arise in the face of the Court as by rude and contumelious behaviour, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court under circumstances like these, that is, by publication of an improper character made long before the proceedings have been brought to this Court. The question arises, do the articles to which exception is taken, fall within this category. The Advocate-General minutely criticised the language used in these articles; in fact the analysis was so close and the criticism so severe that they considerably diminished the weight which the Court would otherwise be inclined to attach to an argument on behalf of the Crown in a proceeding of a criminal nature. The obvious course to pursue in cases of this description is to read the articles as they stand and to attach to the words used their natural meaning without the assistance of a laborious commentary. 116. Tested from this point of view, how do these articles stand? In the first place, they comment upon the method of house searches and the annoyance and Hardships they cause in many instances to innocent persons. In the second place, they comment upon the mode of arrest of suspected persons, sometimes in what may not inappropriately be called an almost dramatic manner. In the third place, these articles comment upon the employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inasmuch as the vagueness and generality of the charge makes it impossible for any individual member to repudiate the charge or to defend his character. But I am unable to accept the contention that an allegation of this character constitutes a contempt of Court. I must emphatically repudiate the astonishing proposition that the Criminal Investigation Department is the prosecutor in the criminal case before the Court of the Magistrate at Barisal, and that consequently imputations, veiled or otherwise, to the effect that the investigation by the department has been carried on in an objectionable manner constitute a contempt of Court. I must assume that the prosecution has been instituted by and with the sanction of the Governor in Council, and that whatever share the Criminal Investigation Department may have in the investigation of the case, they cannot be deemed. in law, and I trust they are also not in fact, the prosecutors in the criminal case. The statement that the Criminal Investigation Department is really the prosecutor in the criminal case, taken along with the circumstance that the articles make, insinuations as to the mode of investigation by that Department may, no doub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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