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Petitioner: THE STATE VS Respondent: MOULANA ABDUR RASHID TARKABAGISH AND OTHERS
P L D 1964 Dacca 241
P L D 1964 Dacca 241
Before Rahman and Chakraborti, JJ
THE STATE‑Petitioner
versus
Moulana ABDUR RASHID TARKABAGISH AND OTHERS‑Respondents
Criminal Miscellaneous Cases Nos. 30 and 50 of 1958, decided on 11th August 1962.
(a) Contempt of Court‑Proceedings not necessarily criminal proceedings‑‑ Same strictness of proof be observed as in criminal proceedings‑Court, however, not bound by techni calities.
Interferences with the administration of justice when they amount to contempt of Court, are "quasi‑criminal acts" and orders punishing them should, generally speaking, be treated as orders in criminal cases. But this does not indicate that contempt proceedings were for all purposes criminal proceedings.
Andre Paul Terence Ambard v. The Attorney‑General of Trinidad and Tobago 40 C W N 801 P C ref.
As regards the question of proof, the Court in contempt proceedings would insist on an equal amount of strictness of proof and would act with as much prudence in assessing the evidence adduced before it as a Court of justice should exercise in all matters before it. But it must be reiterated that the Court is not bound by any technical considerations in such matters.
In re : Tarit Kanti Biswas, Printer and Publisher of Amrita Bazar Patrika and others 21 C W N 1161 rel.
(b) Contempt of Court‑Scandalous remarks with reference to decided cases having pernicious tendency of impairing authority and dignity of Courts‑Remarks not of general character and hence not excusable‑Actual obstruction or interference with course and administration of justice by words used not necessary‑Word "calculated"‑Meaning.
Where the words printed, published or uttered amount to a scandalisation of the Court with reference to a decided case or cases, it amounts to a clear contempt of Court. Therefore where the remarks complained of are not merely remarks of a general character, but remarks about the manner and method of disposal of some cases decided in the past, they will clearly amount to the scandalisation of the Courts with reference to decided cases.
In re : Subrahmanyan, Editor, Tribune and others A I R 1943 Lah. 329 ref.
If the words used have the pernicious tendency of impairing the authority and the dignity of the Courts of justice, by scand alising them, then it is no excuse for the person who is respon sible for the said publication or who uttered the said words to say that it was in respect of proceedings which have long since concluded in the Courts. It is not necessary that the words used should actually obstruct or interfere with the course of justice and the due administration thereof, but it is sufficient that they should be calculated to have that effect. In this context "calcul ated" has been held to mean that the offending words should be of a nature or character proper or likely to obstruct or interfere in that manner.
(c) Contempt of Court‑Contemptuous words published in newspaper‑Editor, Manager, Printer and Publisher, liable -Repetition of contempt also contempt.
(d) Contempt of Court‑State should uphold dignity and authority of judiciary and not leave it to judiciary to act suo moto.
A. Salam Khan, Mahbubur Rahman, Serajul Huq, M. A. Khaleque and Abdul Munsur Ahmad for the Contemner (in No. 30 of 1958).
M. Hakim and A. M. Chowdhury for the Contemner (in No. 50 of 1958).
Syed Abdul Gani for the State.
JUDGMENT
RAHMAN, J.‑‑This suo moto Rule against Moulana Abdur Rashid Tarkabagish was issued by this Court on 18th of May 1958. It first came up for hearing before us on the 24th of June 1958. The Moulana in answer to the said Rule showed cause by filing an affidavit in‑ which he denied that he had ever made any statement to the purport reported in the "Morning News" in its issue of the 2nd of May 1958, and it was contended on his behalf that this Court should discharge the Rule, because there was no other evidence before it to show that the Moulana had, in fact, made the offending statement which had been mentioned in the Rule issued by this Court.
2. Mr. Salam Khan appearing on his behalf had vigorously contended then that contempt proceedings being criminal pro ceedings should be tried in the same manner as other criminal proceedings, and the rules of such criminal proceedings should also apply. On that date we delivered a judgment dealing with the said contentions, and held that the proceedings were sui generis in nature partaking of some of the elements of both civil and criminal proceedings, but really constituting neither, that there was no fixed formula for contempt proceedings, and that technical accuracies were not required, nor were we bound by the provisions of the Code of Criminal Procedure or by the technicalities of ordinary criminal proceedings ; but nevertheless being Courts of justice we would normally follow the fundamental rules for the ascertainment of the truth by giving the fullest opportunity to the person accused of defending himself and of putting forward his case with as much, if not, more fairness than we would in an ordinary trial before us.
3. Upon those considerations, we decided that it was of the utmost importance not only for this Court, but also for the general litigant public as well as in the interest of the alleged contemner himself that the matter should be properly investigated.
4. It was not disputed in the affidavit filed by the Moulana that he had, in fact, granted an interview to a correspondent of the "Morning News", but he complained that the views expressed by him had been materially garbled by the said correspondent. The learned Deputy Legal Remembrancer appearing on behalf of the State furnished us with the name and address of the said correspondent and suggested that he might be examined. It also appeared to us then that the newspaper could not absolve itself of the liability of publishing any matter which amounted to a contempt of Court even if it was merely quoting the words of somebody else. In those circumstances we decided to issue a similar Rule for contempt on the Editor, Manager, Printer and Publisher of the "Morning News", as also directed the said Rule to be served upon the said correspondent, who was further summoned to appear before this Court and to give evidence in this matter, as also to produce other relevant papers, books or documents, if any, which he might have used in connection with the said interview.
5. In answer to this latter Rule, the Editor, one Mr. Badruddin, and the Manager, Printer and Publisher, one Mr. Lawrence have also showed cause by filing affidavits herein, and the said correspondent Mr. Tasiqul Alam Khan has also appeared and given evidence in this case. He was examined‑in- chief by this Court itself, but he was cross‑examined at great length by the learned Advocate appearing for the Moulana, and re‑examined by the learned counsel for the Editor, Manager, Printer and Publisher of the "Morning News".
6. The Editor in his affidavit state that the publication in the "Morning News" was made according to the typed report furnished by the said correspondent Mr. Tasiqul Alam Khan, who is one of its senior staff reporters, and had been with them for more than six years incharge of the political news section. He was, according to the Editor, a highly qualified, responsible and honest person, and has no enmity or bias against the said Moulana, and, therefore, he accepted the report presented by the said correspondent, and also published the same without any scrutiny whatsoever, as he had no reason to think that he would misquote or misrepresent the Moulana. He accepted the responsibility for the publication, but stated that by the said publication it was never intended to lower the prestige or dignity of the judiciary or to interfere in any way with the course of justice. According to him, his newspaper had all along endeavoured to uphold the prestige of the judiciary, and to invite unequivocal condemnation from everybody for attempts made to cast any doubt on the high traditions of the judiciary, and he concluded by tendering an unconditional apology to the Court for the publication made, which he stated had been made in good faith. The affidavit of the Manager, Printer and Publisher is also to the same effect, and he also has tendered an unconditional apology.
7. We shall deal later with the evidence of Tasiqul Alam Khan, but before we do so, we have first to deal with some of the points urged by Mr. Salam Khan on behalf of the Moulana. Although we had fairly exhaustively dealt with his contention that proceedings in contempt were criminal proceedings and should be dealt with like ordinary criminal matters in our judg ment of the 24th of June 1958, he has again considered it necessary to urge the same point before us though for a somewhat different purpose. Apart from the propriety of urging the same point over again in spite of the fact that this Court had in this very matter given a decision on the point earlier, we are constrained to observe that the object with which the argument was again pressed before us is, if anything, a direct challenge to the correct ness of our earlier decision. Mr. Salam Khan sought to contend that in contempt proceedings the technicalities not only of pro cedure or of the law of evidence applicable to ordinary criminal trials should apply, but further that even the rules of prudence which are ordinarily followed in criminal trials should also be applicable to contempt proceedings. Thus, the rule of prudence that the evidence of an accomplice should not be relied upon unless corroborated in material particulars by other independent evidence, should also be applied to contempt proceedings, and the evidence of Tasiqul Alam Khan, who, it was urged, was really in the position of an accomplice, should be totally rejected.
8. Apart from the decisions upon which he relied for this very purpose on the earlier occasion, the only other new decision that he has placed before us in this connection is a decision of the Privy Council in the case of Andre Paul Terence Ambard v. The Attorney‑General of Trinidad and Tobago (40 C W N 801 (P C)), where Lord Atkin while deciding the question as to whether the Privy Council should or should not grant special leave to appeal, and, if so, on what grounds, observed at one place that interferences with the administration of justice when they amount to contempt of Court are "quasi‑criminal acts", and orders punishing them should, generally speaking, be treated as orders in criminal cases, and leave to appeal against them should only be granted on the well known principles on which leave to appeal in criminal cases is given. This observation does not, in our opinion, indicate that thereby their Lordships of the Judicial Committee intended to lay down that contempt proceedings were for all purposes criminal proceedings.
9. We have no wish to repeat what we have already stated in our judgment on the 24th of June 1958. But since the object now sought to be achieved by this argument does not relate to the procedure but to a matter of evidence, we would like to quote here the observations on this point of Woodroffe, J., in the case of Tarit Kanti Biswas, Printer and Publisher of Amrita Bazar Patrika and others (21 C W N 1161). In that case, too, it had been laboured at the Bar to establish that a proceeding in contempt should be decided as a criminal proceeding, and that the same strictness of proof should be observed in those proceedings. With regard to this later question that eminent Judge observed (at page 1185):
"As regards the question of proof, no case either civil or criminal should be tried and determined otherwise than according to the law governing it. It is not the fact that civil proceedings may be slack and criminal proceedings must be strict. A dereliction of duty may of course be of greater or less moment according to the nature of the proceeding in which it happens. As regards the standard of proof, I would repeat what was held in Westom v. Peary Mohun Das I L R 40 Cal. 898 that there is but one rule of evidence which in India applies to both civil and criminal trials, and that is contained in the definition of `proved' and `disproved' in section 3 of the Evidence Act, whether the case is civil or criminal, a fact is only proved or disproved if it comes within the terms of that section."
We respectfully agree with these observations, and for ourselves hold that we, too, in such proceedings would insist on an equal amount of strictness of proof, and would act with as much prudence in assessing the evidence adduced before us as Court of justice should exercise in all matters before them. But we must again reiterate that we cannot accept that we are bound by any technical considerations in these matters. Indeed, it maybe per tinent to point out that in the case above‑mentioned even Sir Ashutosh Mukherjee, J., who, although he had at some places expressed opinions which have been often sought to be construed as having laid down that the same procedure and the same technicalities should be observed in such proceedings too ; observed with regard to one of them, namely, that a person
charged with a contempt may refuse to disclose anything or for that matter to keep silent, in the penultimate paragraph of his judgment, as follows:
"The immunity from punishment which the offenders may imagine they enjoy by reason of stolid silence, is most probably of an illusory character."
10. This observation is not without significance. It does not tend to support the view that he had indeed laid down any such wide rule.
11. For these reasons, we are unable to accept either the contention that Tasiqul Alam Khan is in the position of an accomplice in this case, in the sense of being particeps criminis, or that we should not accept his evidence merely because it is not corroborated in material particulars by other independent evidence.
12. In the course of his arguments Mr. Salam Khan again placed strong reliance on the dissenting judgment of Monmatha Nath Mukherji, J., in the matter of Tushar Kanti Ghosh, the Editors and others (39 C W N 770). In that case the alleged contemners had been charged with having published in their newspaper a general remark to the effect the learned Judge of the Calcutta High Court found special delight in hobnobbing with the executive. It was not a remark in connection with any pending, anticipated or disposed of proceeding in that Court. It was argued at the Bar in, that case ; firstly, that commitments for scandalisation of Courts had become obsolete ; secondly, that since the remark was not in connection with any cause pending in that Court there was no question of any interference being caused to the administration of justice by that Court which could amount to a contempt ; and thirdly, that in any event general remarks of that character did not prevent the Court in any way from following its normal course. The majority judgment, of course, did not accept any one of these contentions. But Mukherji, J., in his dissenting judgment accepted the first two contentions and dissented from the other members of the Bench.
13. That case was heard in the Calcutta High Court in April 1935, but just a year later the Privy Council in the case of Andre Paul Terence Ambard v. The Attorney‑General of Trinidad and Tcbago, decided in March 1936, pointed out that the observations in the case of McLeod v. St. Aubyn (1899 A C 549), to the effect that committals for contempt of Court for scandalising the Court had become obsolete, had been sadly disproved the next year" fn the case of the Queen v. Gray ((1900) 2 Q B 36). After this authoritative pronouncement of their Lordships of the Judicial Committee, the observations of Mukherji, J., that the decision of Lord Russell in the case of Queen v. Gray had been made without reference to the case of McLeod v. St. Aubyn, and was of no binding effect upon Courts in India, can no longer hold good.
14. With regard to the second question as to whether it is necessary that any cause should be pending to create obstruction to the course of justice, we must observe that the observation of Mukherji, J., should be read only with reference to the facts of that case. There the remarks were absolutely general remarks unconnected with any cause whatsoever in the said Court either expected or pending or disposed of. What the learned Judge actually said in his judgment was that in order to infer that an intention to obstruct the course of justice was present or that there was a tendency to create such obstruc tion by the acts or words complained of, the presence or absence of a cause or proceeding either expected or pending or disposed of, formed a most important factor to be taken into account. The learned Judge, however, clearly held (at page 809) that:
"Scandalising the Court with reference to a decided case may bring the decision itself into disrepute by means outside the ordinary course of justice, and may have the effect of deterring the Court from proceeding on the lines on which the Court had proceeded in arriving at the decision."
From this observation it is clear that where the words "printed or published or uttered" amounts to a scandalisation of the Court with reference to a decided case or cases, it amounts to a clear contempt of Court. In the present case the remarks complained of are not merely remarks of a general character, but remarks about the manner and method of the disposal of some cases decided in the past when the Muslim League Government was in office, and, therefore, clearly amounted to the scandalisation of the Courts in this Province with reference to decided cases.
15. In this connection we may also refer to the observations of Munir, J., as he then was, in the case of In re : Subrahmanyan, Editor, Tribune and others (A I R 1943 Lah. 329), where he observed:
"The principle that the summary proceedings for contempt of Court should not be instituted in respect of what amounts to a technical contempt after the proceedings in the Court have been disposed of, and there is no possibilities of inter ference with the due course of justice applies only to appli cations for proceedings in contempt made by private parties, and not to institution of proceedings by Court. The jurisdiction of the Court exists not only to prevent the mischief in the particular case, but also to prevent similar mischief arising in other cases. Consequently, even when the proceedings before it had been disposed of, the Court can institute proceedings to see whether an article published in connection with the pro ceedings before it was on the date of its publication calculated to interfere with the due course of justice, and to prevent repetition of the same if it amounted to contempt."
There is thus no question that if the words used in the case before us have the pernicious tendency of impairing the authority and the dignity of the Courts of justice in this Province by scandalis ing them, then it is no excuse for the person who is responsible for the said publication or who uttered the said words to say that it was in respect of proceedings which had long since concluded in these Courts. It is not necessary that the words used should actually obstruct or interfere with the course of justice and the due administration thereof, but it is sufficient that they should be calculated to have that effect. As to what "calculated" means in this context has been pointed out by our Supreme Court in the recent case of Abdus Salam, Editor, Pakistan Observer and others v. The State (hitherto unreported). Their Lordships have held it to mean that the offending words should be of a nature or character proper or likely to obstruct or interfere in that manner.
16. It is not necessary for us to enter into the question as to whether general remarks unconnected with any cause either expected or pending or disposed of can or cannot prevent a Court of justice, no matter what its character or nature, from following its normal course, for, in the case before us, as we have pointed out the words used are not such general remarks, but remarks concerning proceedings or cases disposed of by the Courts.
17. With regard to the tendency or meaning of the words complained of in the present case, there is no manner of doubt or dispute. The words in no uncertain terms impute that during the regime of the Muslim League the judiciary had been influenced by the Ministry. That is a direct attack upon the independence and integrity of the Courts of justice in this country. Even Mr. Salam Khan was constrained to concede that these words cannot but amount to a serious and gross contempt of Court.
18. The question, therefore, that now arises for our con sideration is as to whether the Moulana is responsible for having uttered these words. It may be pointed out here that soon after this report was published in the "Morning News" on the 2nd of May 1958, the Moulana caused a correction thereof to be published in some of the local dailies including the "Morning News", which published it on the 6th of May 1958. In this it is stated that what the Moulana actually said was that he did not want that those jailed by Courts of law on charges of activities subversive to law and order should be freed, because, in that case the judiciary cannot function independently, and any action like that by the administration would result in chaos. Even in this, how ever, he admitted that he added that if it is proved that any Court on the trial of the prisoners referred to by the NAP during the Muslim League regime had been influenced resulting in injustice there may be a re‑trial. Of course, this is a layman's and not a law yer's point of view. In the affidavit before us, however, he has con tended himself merely by charging that the words published in the "Morning News" were a materially garbled version, and had grievously misreported his views. He does not on oath state what exactly he said, but he asserts that he not only made no statement derogatory either to the dignity or to the independence of the judiciary, but on the other hand, he sought to impress on the importance of upholding the judgments of the Courts of law, for, he is of the firm opinion that the rule of law is essential, and that the rule of law would be meaningless unless the judiciary can act independently with authority and dignity.
19. Mr. Tasiqul Alam Khan, however, has given evidence to the effect that not only the Moulana did categorically say so, but that he also insisted that these things must be published in the paper, namely, about the political prisoners, and that the Muslim League Ministers much influenced the judiciary.
20. Mr. Salam Khan has critically assailed the evidence given by this staff correspondent, and has contended, that he should not be believed ; firstly, because the witness does not appear to be entirely free from bias against the Moulana ; secondly, because his account of the interview is a highly improbable one ; and thirdly, because of his demeanour in the witness box. Next it is contended that the evidence of these witnesses, even if it can be believed, does not exclude the possibility of the witness having misunderstood the Moulana or of having made some confusion with regard to the actual words used by him, particularly, since even, according to the witness, the interview consisted both of formal and informal discussions, and no minutes, had been kept of the informal discussions as they were not intended for public ation. Furthermore, because of the fact that admittedly verbatim minutes or notes were not taken at the interview ; and lastly, because the offending passage which has been printed in bold type and given unusual prominence in the "Morning News" of the 2nd of May 1958, is not, according to the newspaper itself, a quotation of the words of the said Moulana. Although the passages immediately preceding and succeeding the offending portion have been printed within inverted commas the offending portion has not been so included within inverted commas. Mr. Salam Khan has also in this connection asked us to take into account the subsequent conduct of the Moulana in issuing a contradiction, and pointing out the inaccuracies in the report published on the 2nd of May 1958, almost immediately afterwards, and has suggested that this shows that from the very beginning the Moulana was taking the stand that he had been misreported, and that his view had been misrepresented.
21. In the course of the cross‑examination it has also been suggested to the witness that he has sufficient motive to mis represent the Moulana ; firstly, because the newspaper for which he was working was opposed to the views of the political party of which the Moulana was the President ; secondly, because the witness's father's cousin was a rival candidate of the Moulana in the last election; and lastly,…
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