ATKIN,J. - (1.) WHEN the parties appeared Mr. Gandhi filed an affidavit in which he said that since the notice was issued he had made personal inquiries at Meerut and had ascertained certain facts, which he set out, but desired to assure the court that it was no part of his intention to cast any reflection on the conduct of the Chief Justice or to bring the court into disrepute or contempt, and that he would be sorry indeed if his conduct in publishing the comments, which he did publish as editor, relying on the accuracy of his informant, were interpreted as implying any malicious intention on his part or intended to bring the court or any member of it into disrepute. Their Lordships, for reasons which will appear, do not find it necessary to enumerate the facts alleged in Mr. Gandhi's affidavit. In substance, they were that" Mr. Singhal had been present in the court of Mr. Vidyarthi on July 31 when he gave judgment in the murder case, and that after sentencing the four accused to transportation for life the judge made the following statement in open court: "Since the Chief Justice, who has been requested by His Excellency the Governor to help in the war effort, has asked us to raise subscriptions for the war fund, it is incumbent on us to raise subscriptions and you should help me in this work." Thereupon, lawyers and litigants present in court held consultations; Rs. 200 were collected in court and placed on the table of the judge: and, according to Mr. Singhal, one of the counsel who appeared for some of the accused told the court that he had collected Rs. 150 from his clients as requested by the judge and that he would present that money the next morning. The judge then declared the rest of the accused discharged. This statement was said to have been corroborated by various people in Meerut, some present at the trial and some not.
(2.) AT the hearing on September 9 no further evidence was tendered. Sir Tej Bahadur Sapru, counsel for the printer and the editor, repeated that it was no part of the intention of either to cast any reflection on the court. The Chief Justice stated that the information contained in the comment was based on untrue facts, and that no circular was issued by him, and he would like further discussion to proceed on that basis. This statement was accepted by counsel, and the case has proceeded on the footing that no circular and no request was issued by the Chief Justice to judicial officers of the subordinate courts to the effect stated. At the end of the hearing on September 9 the Chief Justice, addressing counsel, said: "We are going to reserve judgment. Having given due weight to what you have said, we have arrived at the conclusion that your clients are guilty of contempt of court; and, in the absence of an apology, for which we give time until the day after to-morrow, it shall be our duty to pass sentence according to law." There then followed a series of transactions on which the appellants, in support of their case, proposed strongly to rely, but which their Lordships find in unnecessary to discuss in view of their opinion on the question whether the appellants were guilty of any contempt of court on which they ought to have been convicted. The Chief Justice, before the day reserved for judgment arrived, had with Collister J. interviewed Mr. Vidyarthi and gave notice to the appellants on September 11 that as he had asserted that most of the allegations in Mr. Gandhi's affidavit were untrue, the court proposed to examine him and another witness in court on September 15, and that the appellants would be given the opportunity of calling further evidence. The two witnesses were examined, the case was further adjourned to September 25, the Chief Justice stating that in a way Mr. Vidyarthi was also on trial, and would be allowed to produce witnesses. At the resumed hearing the Chief Justice said that if Mr. Vidyarthi did not utter the words alleged then Mr. Singhal would primarily be guilty of contempt of court, having sent the information, and that it was desirable that the proceedings should continue together. Accordingly, it was agreed by Mr. Singhal and all the parties that Mr. Singhal should accept a notice then issued that he should "show cause why he should not be dealt with for contempt of this Court with respect to the news published in the Hindustan Times of Sunday, August 3, on information supplied by him." The case proceeded on this footing on September 26 and 27 and October 27 and 28, when Mr. Vidyarthi appeared by counsel who cross-examined the witnesses called by the appellants. It should be stated that no objection was taken by the appellants' counsel to any of the procedure adopted by the court. On November 14 the Chief Justice delivered the considered judgment of the court. He reviewed the evidence and came to the conclusion that Mr. Vidyarthi had not made the statement imputed to him: and that Mr. Singhal had founded his report on "nothing more substantial than a suggestion or an easy inference from the facts." The Chief Justice then stated that in the opinion of the court the charge of contempt was established against all three respondents. He proceeded to state what impression, in the opinion of the court, an ordinary intelligent reader would receive from reading the editorial comment of August 6. "The comment contains a clear insinuation that the Chief Justice had issued a circular to all judicial officers to raise contributions from litigants and others to the War Fund, that pressure was thereby being exerted by an authority which it would not be safe to displease,' and that the prestige of the courts would thus be impaired. The implication is that the Chief Justice had done something which was unworthy of a person holding that high office, and that as the head and representative of this High Court he had committed the gross impropriety of forcing judicial officers subordinate to this Court to ask for war contributions from litigants who, notwithstanding that the giving of donations was ostensibly voluntary, were not in a position to refuse." As to Mr. Singhal, the court found that he sent information which was probably founded either on his own inference from what took place or on a suggestion from other persons, and he had endeavoured to defend his action by giving evidence which they were unable to accept as true. As to the printer and Mr. Gandhi, they had no reason to suspect the accuracy of their correspondent's reports, and were acquitted of malice. Nevertheless, they erred grievously in publishing the news item and the editorial comment without attempting to verify its truth.
(3.) AT the hearing of the appeal their Lordships intimated that they desired to deal first with the primary question whether in the circumstances the words complained of were capable of being a contempt of court, and counsel for both sides argued this point. On the conclusion of this argument their Lordships intimated that their decision was in favour of the appellants. The other points, therefore, raised by the appellants were not further discussed by counsel for the appellants or at all by counsel for the respondent, and their Lordships must not be taken as expressing any opinion one way or the other on them. In their Lordships' opinion, the conviction for contempt of court cannot stand. The cases of contempt which consist of "scandalizing the court itself" are fortunately rare, and require to be treated with much, discretion. In 1899 this Board pronounced proceedings for this species of contempt to be obsolete in this country, though surviving in other parts of the Empire, but they added that it is a weapon to be used sparingly and always with reference to the administration of justice: McLeod v. St. Aubyn [1899] A.C. 549. In In re a Special Reference from the Bahama Islands [1893] A.C. 138 the test applied by the very strong Board which heard the reference was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of justice and the due administration of the law. In Reg. v. Gray [1900] 2 Q.B. 36 it was shown that the offence of scandalizing the court itself was not obsolete in this country. A very scandalous attack had been made on a judge for his judicial utterances while sitting in a criminal case on circuit, and it was with the foregoing opinions on record that Lord Russell of Killowen C.J., adopting the expression of Wilmot C.J. in his opinion in Rex v. Almon (1765) Wilmot's Notes of Opinions, 243, which is the source of much of the present law on the subject, spoke of the article complained of as calculated to lower the authority of the judge. When the comment in question in the present case is examined it is found that there is no criticism of any judicial act of the Chief Justice, or any imputation on him for anything done or omitted to be done by him in the administration of justice. It can hardly be said that there is any criticism of him in his administrative capacity, for, as far as their Lordships have been informed, the administrative control of the subordinate courts of the Province, whatever it is, is exercised, not by the Chief Justice, but by the court over which he presides. The appellants are not charged with saying anything in contempt of the subordinate courts or the administration of justice by them. In truth, the Chief Justice is alleged, untruly, as is now admitted, to have committed an ill-advised act in writing to his subordinate judges asking (as the news item says), enjoining (as the comment says) them to collect for the War Fund. If the facts were as alleged they admitted of criticism. No doubt it is galling for any judicial personage to be criticized publicly as having done something outside his judicial proceedings which was ill-advised or indiscreet. But judicial personages can afford not to be too sensitive. A simple denial in public of the alleged request would at once have allayed the trouble. If a judge is defamed in such a way as not to affect the administration of justice he has the ordinary remedies for defamation if he should feel impelled to use them. Their Lordships cannot accept the view taken by the court as stated above of the meaning of the comment: the words do not support the innuendo. In the opinion of their Lordships the proceedings in contempt were misconceived, and the appellants were not guilty of the contempt alleged. At the end of the hearing their Lordships intimated they would advise His Majesty that the appeal should be allowed and the fine and the costs ordered to be refunded, and that they would give their reasons for their report later, as they have now done.;