STATE OF BIHAR Vs. SHANKAR LAL KHIRWAL
LAWS(PAT)-1960-2-1
HIGH COURT OF PATNA
Decided on February 02,1960

STATE OF BIHAR Appellant
VERSUS
SHANKAR LAL KHIRWAL Respondents


Referred Judgements :-

IN RE SUBRAHMANYAN,EDITOR TRIBUNE [REFERRED TO]
NARAYANDAS BHAGWANDAS MADHAVDAS VS. STATE OF WEST BENGAL [REFERRED TO]
SUBRAMANIA PILLAI VS. VENKATARAMA REDDI [REFERRED TO]
SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS VS. MURALI MANOHAR PRASAD [REFERRED TO]
EMPEROR VS. JCHOUDHURY [REFERRED TO]


JUDGEMENT

H.K. Chaudhuri, J. - (1.)THIS proceeding was started on an application by the State of Bihar for issue of notice on the opposite party to show cause why they should not be proceeded against for contempt of Court. Shankar Lal Khirwal, opposite party No. 1, is the Editor and Duryodhan Bihari, opposite party No. 2, is the Printer and Publisher respectively of a Hindi News weekly the "Nawa Rasta" published from Chaibassa in the district of Singhbhum. In the months of January and February 1959, five criminal cases under Sections 153A and 505 of the Indian Penal Code, being G. R. Case Nos. 745, 746, 747, 748 and 749 of 1958, were pending in the court of the Subdivisional Magistrate, Sadar, Chaibassa, in which the opposite party along with one Brajnandan Kishore figured as accused persons. In G. R. Case No. 748 of 1958 the Divisional Inspector of Police, Sadar, who was investigating the case, filed an application before the Subdivisional Magistrate for issue of warrants of arrest and house search against Shankar Lal Khirwal, opposite party No. 1. The Subdivisional Magistrate by his order dated 5-1-59 issued a search warrant at the first instance directing the Divisional Inspector to conduct the house search under Section 98 of the Code, of Criminal Procedure. On 27-1-59 on receipt of a further report from the Inspector ot Police, the Subdivisional Magistrate passed orders for issue of a warrant of arrest against opposite party No. 1, who was arrested and produced before the Subdivisional Magistrate on the same date. On 6-2-59 opposite party No. 1 was released On bail. Thereafter on 11-2-59 an article was published in the Naya Rasta under the caption "Naya Rasta ke sampadak jamanat per chore gaya" with different sub-heads in which comments on the arrest of Shankar Lal Khirwal were made (Annexure A). On 25-2-59 two more articles were published in the same paper, one under the caption "Shri Babuki sarkar ankhe kholkar padhey our nyaye de" along with a true copy of the order-sheet of G. R. Case No. 748 of 1958 (Annexure B) and another under the caption of "Rajya ke patra abam patrkaron doara Shiri Khirwal ki giraftari par kshov" (Annexure C). In both these articles comments were made on the arrest of the editor. It is submitted on behalf of the petitioner that the three articles tended to create distrust in the popular mind and shake the confidence of the public in the Sub-divisional Magistrate, Sadar, and the District Magistrate, Chaibassa, acting in their judicial capacity, inasmuch as it was sought to propagate by the publication of these articles that the proceedings in the court of the Subdivisional Magistrate, Sadar, were irregular and illegal and that there was public dissatisfaction and resentment on that account. The publication of the articles, Annexures A, B and C, it is urged, was calculated to interfere with the administration of justice. The comments made on the various orders of the Subdivisional Magistrate in the article dated 25-2-59 (Annexure B), it is further submitted, amount to scandalising the Subdivisional Magistrate who passed those orders acting in his judicial capacity.
(2.)OPPOSITE party No. 2 in his petition showing cause pleads that he has been serving at Rourkela and has no connection with the paper since 1957. It is then submitted that whatever may be the position he was tendering unqualitied apology and expressing his deep regret for any act alleged to have been done by him.
Opposite party No. 1, the Editor, asserts that he has not committed any contempt of Court. He denies that he made any comments on any pending legal proceedings, started or instituted in any court of law, or interfered in any manner with the administration of justice. According to him, he is the victim of "consistent and persistent illegal and unauthorised actions of local executive and police officers particularly local Subdivisional Officer and the local Divisional Inspector of police who have been abusing all their power to misuse the process of law" against him. It is contended that the Subdivisional Magistrate had not taken any legal proceeding and had no jurisdiction to initiate any such proceeding and that he was not acting as a Magistrate empowered under the Code of Criminal Procedure to initiate any such proceeding. As regards the Divisional Inspector of Police, it is stated that he was not authorised to take any steps by way of investigation for issue of a warrant of arrest or a search warrant. The opposite party states that he has been advised that he had been arrested and kept in custody by the Sub-divisional Magistrate and the other local executive authorities without any lawful authority and that all actions taken against him were executive and police actions. Finally, it is said that the comments to which exception has been taken do not exceed the limits of fair criticism.

Mr. Basantchandra Ghosh appearing on behalf of the Editor contended that there was no proceeding pending in the eye of law at the time the articles in question were published, since the Subdivisional Magistrate had no authority to initiate any such proceeding under the Code of Criminal Procedure nor was the Divisional Inspector of Police empowered to investigate the case and apply for and obtain processes for house search and arrest of the opposite party. The arrest of the Editor, which is challenged as illegal, is said to have been the result of executive high-handedness and could by no means be said to have been a judicial act done by a Magistrate acting as a Court under the authority of law. In this connection, learned counsel has referred to Sections 196 and 196B of the Code of Criminal Procedure. The relevant portion of Section 196 is quoted below:

"No court shall take cognizance of any offence punishable........under........Section 153A......or Section 505 ....unless upon complaint made by order of, or under authority from the State Government or some officer empowered by the State Government in this behalf". Section 196B runs as follows: "In the case of any offence in respect of which the provisions of Section 196 or Section 196A apply, a District Magistrate or Chief Presidency Magistrate may, notwithstanding anything contained in those sections or in any other part of this Code, order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police-officer shall have the powers referred to in Section 155 Sub-section (3)".
Section 155(2) provides that no police-officer shall investigate, a non-cognizable case without the order of a Magistrate of the first or second class having power to try such case or commit the same for trial. Sub-section (3) provides that any police-officer receiving orders from a Magistrate to investigate a non-cognizable case may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police-station may exercise in a cognizable case.
Sections 153A and 505 of the Indian Penal Code being some of the sections included in Section 196 of the Code of Criminal Procedure the Subdivisional Magistrate had no powers to take cognizance of those offences without a complaint made by order of or under authority from the State Government or some officer empowered by the State Government in this behalf. It is undisputed that at the time the offending articles were published no such complaint had been filed and there was, therefore, no question of the Subdivisional Magistrate taking cognizance of any case under Sections 153A and 505 of the Indian Penal Code. Mr. Basant Chandra Ghosh, however, contends that not only there was no complaint before the Subdivisional Magistrate, there was, at the relevant time, not even an order under Section 196B by the District Magistrate authorising the Divisional Inspector to hold a preliminary investigation in G. R. Case No. 746 of 1958 in which the warrants for search and arrest were issued. It was urged that the Divisional Inspector had, therefore, no authority to hold the preliminary investigation and to apply for and obtain the warrants.

In order to understand the contention of learned counsel it is necessary to state a few facts. It appears that the Inspector of Police drew up five first information reports against the opposite party in respect of certain articles published in the "Naya Rasta" dated 3-9-58, 27-8-58, 1-7-58, 9-9-58 and 3-9-58. On 23-10-58 the Divisional Inspector made an application before the Subdivisional Magistrate stating that opposite party No. 1 had in his paper published certain news items relating to the conversion of several Adibasis to Christianity which were likely to promote feelings of enmity and hatred between the Christians and the Adibasis of this State. Since the alleged offences came within the purview of Sections 153A and 505 of the Indian Penal Code, the Inspector requested the Subdivisional Magistrate to move the Deputy Commissioner, Singhbhum, to issue orders authorising him to hold preliminary investigation into those offences. Accordingly an order under Section 196B of the Code of Criminal Procedure authorising the Inspector to hold preliminary investigation was passed by the Deputy Commissioner on 18-11-58. Thereafter Chaibassa Police case Nos. 12, 13, 14 15 and 16 dated 24-11-58 arising out of the publications dated 3-9-58, 27-8-58, 1-7-58, 3-9-58 and 9-9-58 respectively were registered. We are in the present case mainly concerned with case No. 13 dated 24-11-58 which relates to G. R. Case No. 746 of 1958. There are two sets of order-sheets in this case. One set bearing serial Nos. 1 to 4 contains orders which are more or less of a formal character. The first order in this series is dated 26-11-58 and runs as follows: "Seen the F.I.R. of Sadar P. S. Case No. 13 (10) 58 (13(11) 58?) under Section 153A/505 I.P.C. Put up with the final form on 18-12-58". In the other three orders only a date was fixed for submission of final form. After the second order dated 18-12-58 was recorded the Inspector in the course of his investigation made an application on 27-12-58 for issue of warrants of arrest and house search against opposite party No. 1. Then followed a series of orders on different dates on a separate order-sheet culminating in the discharge of the accused on 8-6-59. The recording of these orders on a separate order-sheet was criticised by learned counsel and this was undoubtedly irregular. Nothing, however, turns on this because both sets of orders were passed by the Subdivisional Magistrate himself in G. R. Case No. 746 of 1958. Mr. Ghosh also contended that there was nothing on the record to connect P. S. Case No. 13(11)58 with G. R. Case No. 746 of 1958 and consequently the Subdivisional Magistrate's order directing issue of warrant of arrest was wholly without jurisdiction. The submission of Mr. Ghosh is not correct. The very first order dated 26-11-58 shows that G. R. Case No. 746 of 1958 under Sections 153A and 505 of the Indian Penal Code was registered on receipt of the first information report in P. S. Case No. 13(11) 58. This is also confirmed by the endorsement dated 26-11-58 on the first information report itself. There are other circumstances to indicate that P. S. Case No. 13(11) 58 relates to G. R. Case No. 746 of 1958. In his order detect 27-12-58 the Subdivisional Magistrate pointed out that for the prosecution of the opposite party under Sections 153A and 505 the order of the State Government had to be obtained in accordance with the provisions contained in Section 196 of the Code of Criminal Procedure. He further observed that it was the District Magistrate who alone was empowered under Section 196B of the Code of Criminal Procedure to authorise the Inspector of Police to hold the preliminary investigation. A copy of this Order was forwarded to the Divisional Inspector who reported on 5-1-59 that P. S. Case No. 13(11) 58 under Sections 153A, and 505 of the Indian Penal Code, in which prayer for issue of warrant of arrest and search warrant had been made, was being investigated by him under orders of the Deputy Commissioner passed under Section 196B of the Code of Criminal Procedure. In his report the Inspector further submitted that the investigation of the case was nearing completion except that the examination of accused Shankar Lal Khirwal, who had failed to appear, had not taken place. He also submitted that for proper investigation it was necessary to search the press called the "Chotanagpore Printers" from where the paper was published. On receipt of this report the Subdivisional Magistrate directed issue of search warrant on 5-1-59 and the warrant of arrest on 27-1-59. It is, therefore, idle to contend that the order of the District Magistrate directing preliminary investigation of P. S. Case No. 13(11) 58 has no connection with G. R. Case, No. 746 of 1958.

(3.)MR. Ghosh rext argued that no complaint having been filed by the State Government and the Subdivisional Magistrate not having taken cognizance of the case which was non-cognizable the issue of warrant of arrest was illegal. This contention is equally untenable. Section 196B provides that in the case of any offence in which the provisions of Section 196 apply a District Magistrate may, notwithstanding anything contained in those sections or in any other part of this Code, order a preliminary investigation by a police-officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in Section 155, Sub-section (3). Sub-section (3) of Section 155 provides that any police-officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police-station may exercise in a cognizable case. This provision makes it clear that in an appropriate case the Investigating Officer may arrest the accused in course of the investigation under the authority of a warrant. That this procedure has the sanction of law is indicated by the case of Narayandas Bhagwandas v. State of West Bengal, AIR 1959 SC 1118. That was a case in which the accused was sought to be prosecuted under the provisions of Section 19 of the Sea Customs Act. In that case also the Magistrate issued a warrant of arrest against tins appellant without having taken cognizance of the offence. Referring to the warrant of arrest issued on the application of the Inspector of Police their Lordships observed as follows:--
"This application was obviously made under the Criminal Procedure Code. The offence which the appellant is alleged to have committed was a non-cognizable offence. Under section 155 (2) of the Code of Criminal Procedure, no police officer shall investigate a non-cognizable offence without the order of a Magistrate of the fast or second class 'Having power to try such a case or commit the same for trial, or of a Presidency Magistrate. Inspector Mitra's application definitely states that he is asking for permission to investigate a non-cognizable offence under Section 155, Criminal Procedure Code. The order of the Additional District Magistrate directing the issue of a search warrant and the word 'permitted' contained therein, we consider, in the context of the application, to mean that he granted the sanction for investigation as asked for. Under Sec. 155 (3) of the Code a Police Officer being permitted to investigate a non-cognizable offence may exercise the same powers in respect of the investigation as an officer incharge of a" police station may exercise in a cognizable case, except that he has not the power to arrest without a warrant. It was necessary therefore for Inspector Mitra to obtain from the Additional District Magistrate a warrant of arrest."
In the present case, in order to facilitate the Inspector's investigation it was necessary for him to arrest opposite party No. 1 and that he could not do without a warrant of arrest. The Subdivi-sional Magistrate accordingly directed issue of the warrant of arrest for purposes of the Investigation. I am unable to hold that in issuing the warrant of arrest the Subdivisional Magistrate went beyond his jurisdiction. Nor am I impressed with MR. Ghosh's contention that in directing the issue of a search warrant or the warrant of arrest the Subdivisional Magistrate was not acting as a Magistrate or a Court but only as an executive officer. As I have stated before, on receipt of the first Information report from the police the Sub-divisional Magistrate had registered the case as G. R. Case No. 746 of 1958. Whatever orders he passed thereafter in that case must be held to have been passed by him in his capacity as a Magistrate presiding over a Court.
The offending articles, which are Annexures A, B and C were published on 11-2-59 and 25-2-59, i.e. soon after opposite party No. I was released on bail. At the time of the publication of these articles the opposite party No. 1 was fully aware that a police investigation against; him in connection with an offence under sections 153A and 505 of the Indian Penal Code was going on, that a proceeding was pending in the court of the Subdivisional Magistrate and that his prosecution was imminent. There are authorities to show that in the case of a criminal trial proceedings will be deemed to be pending after the accused is taken into custody. It is also well-established that the offence in contempt may he committed even if no case is actually pending provided that such a proceeding is imminent and the writer of the offending publication either knew it to be so or should have known that it was imminent. In the Special Bench case of Emperor v. J. Choudhury, AIR 1947 Cal 414, Biswas, J. referring to two English cases observed that the question whether there may be contempt ot Court when proceedings are imminent but have not yet been launched was not finally decided in those cases. As to the state of law in India his Lordship observed:

"In India, however, there are at least two Full Benches which have not only considered but pronounced upon this question. These are the two decisions to which Mr. Khaitan has referred, Tuljaram Rao v. Governor of Reserve Bank of India, ILR (1939) Mad 466: (AIR 1930 Mad 257) (SB) and In re Subrahmanyan, Editor Tribune, AIR 1943 Lah 329 (FB), and the decision in either of those cases was rested on the two English cases, R. v. Parke, (1903) 2 K. B. 432 and R. v. Daily Mirror, Ex parte Smith, (1927) 1 KB 845, referred to above. In the Madras case, Leach C. J. delivering the judgment of the Court, observed that to comment on a case which is about to come before the Court with knowledge of the fact is just as much a contempt as comment on a case actually launched. In the Lahore case, Harries, C. J. expressed his agreement with this opinion in so many words, observing that proceedings need not actually be pending, and that it is sufficient that proceedings are imminent to the knowledge of the person charged with contempt'."
The same view was expressed by Harries, C. J. In Supdt. and Remembrancer of Legal Affairs, Bihar v. Murali Manohar, ILR 20 Pat 306: (AIR 1941 Pat 185). The case with which we are concerned here is worse still inasmuch as a proceeding was actually pending in the court of the Sub-divisional Magistrate when the publication of the offending articles took place.
Coming now to the merits of the case, the article dated 11-2-59 (Annexure A) was published under a sub-heading "Arrest of the Editor improper?" After referring to what happened in the court the writer states under the heading "Public Reaction" as follows:

"The atmosphere of the entire town became agitated due to this arrest. The civilised citizens began to think of their fundamental rights. Several local institutions and respectable persons openly protested against it. Several resolutions were also passed." Reference then is made to the alleged manner in which the Editor was taken to the court room through the bazzar. The publication dated 25-2-59 begins with the words "Shri Babu's government should peruse with open eyes the copies of the papers which speak for themselves and reveal the secrets and should administer justice." It is then stated that although two other papers were alleged to be involved in undesirable activities the "Naya Rasta" alone had been victimised. The order sheet of G. R. Case No. 746 of 1958, State v. Shankar Lal Khirwal, under Sections 153A and 505 of the Indian Penal Code is then set out in extenso and against each order some comment or other is made which, however, are not of a serious nature and may be ignored. On the same day extracts from several journals of the State were reproduced under the heading "Agitation of the Journals and journalists of the State at the arrest of Shri Khirwal". The passages to which exceptions have been taken are as follows: "Propensity to despotic action on the part of officers posted in far off areas of the State --Duty of the State Government to put a check on the activities of officers resorted to in a spirit of revenge."
Then follow what are stated to be extracts from some other journals of the State with comments: "The improper and unconstitutional arrest of Shri Shankar Lal Khirwal, the Editor of the 'Naya Rasta', has created profound agitation (the Hindi word used is Kshov) among the journalists' circle. The journalists of Patna while expressing their sense of agitation over it have made A demand for an impartial enquiry to Dr. Shri Krishna Sinha and the Government ..... If, in order to throttle strong criticism the local officers impelled by an urge of vengeance seek to take some action it is the duty of the Government of Shri Krishna Sinha to check it. Hence the Government should enquire into these allegations." It then refers to the Hindi Weekly "Azad Mazdoor" of Jamshedpur and states that this paper too while calling the arrest of Shri Shankar Lal Khirwal as conspiratorial has made a forceful demand for an impartial enquiry in its issue dated 22-2-59.


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