At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE D.V. VYAS & THE HONOURABLE MR. JUSTICE V.R. DATAR
For the Appearing Parties: A.S.R. Chari, L.R. Chari, V.D. Mengde, V.K. Pai, V.S. Desai, Advocates.
(1) THESE applications raise an interesting point of law and the point raised is : Is the Coroner appointed under the Coroners Act, 1871 (Act No. IV of 1871), a Court within the meaning of the Contempt of Courts Act, 1952 (Act No. 32 1952)? The circumstances under which this point has arisen may be briefly stated.
(2) CERTAIN articles and reports, containing allegations regarding the cause of death of Anant Vishwanath Golatkar were printed and published by Shrimati Shirish V. Pai and Shrimati Malti Tendulkar in the issues dated 27-1-1957 of "navyug" and "har Har Mahadev" respectively. Certain writings, a poem and a speech of Shri P. K. Atre were printed and published in the issues, under various dates, of "maratha" and "navyug". The State of Bombay contends that by the printing and publishing of the above material and by the making of the above speech the opponents Shrimati Shirish V. Pai, Shrimati Malti Tendulkar and Shri P. K. Atre committed contempt of Court.
(3) ON 20-1-1957 at about 8-45 O'clock in the evening, information was received by Sub-Inspector Kurne of the Gamdevi Police Station that a dead body of a male person had been taken to Dr. Purandare's Maternity Hospital at Chowpatty. The Police took charge of the said dead body on the same night at about 10 O'clock and thereafter the body was sent to the morgue at the J. J. Hospital. About the same time, a memo was sent by the Police to the Coroner of Bombay asking the Coroner to hold an inquest over the dead body. The dead body was subsequently identified to be that of Anant Vishwanath Golatkar. The State of Bombay contends that the Coroner of Bombay took cognizance of this matter at about 11-45 O'clock at night on the same day (20th January 1957). According to the submission of the State in these applications, the subject matter of the cause of death of Anant Vishwanath Golatkar was sub-judice before the Coroner of Bombay from 11-45 p. m. on 20-1-1957 onward and that this fact was known to all the opponents who figure in these applications.
(4) IMMEDIATELY after the occurrence of the above-mentioned incident, the opponents, says the State of Bombay, started making false and malicious propaganda by publishing editorials, articles and reports in the issues of "maratha" and "navyug", alleging that Shri Anant Vishwanath Golatkar had become a victim of a brutal assault in the shape of a lathi-charge which was made by the Police on 20-1-1957. The State contends that during the abovementioned malicious propaganda, which was carried on by the opponents by publishing editorials, articles, reports, etc. , it was alleged by the opponents that upon the person of Golatkar were found marks of injuries, such as weal marks, marks of nails of boots, etc. The opponents alleged that these marks of inj
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ries showed that the deceased, after having sustained injuries during the lathi-charge, had been trampled upon by the Police. It is the contention of the State of Bombay in these applications that the above-mentioned false and malicious propaganda was made by the opponents on the eve of general elections and when the cause of death of Anant Vishwanath Golatkar was pending enquiry before the Coroner of Bombay. According to the State, the printing and publishing of the above editorials, articles and reports, during the pendency of the enquiry by the Coroner of Bombay into the cause of death of Golatkar, constituted a contempt of Court, as the articles abovementioned and the speech referred to above alleged unequivocally that Golatkar had died on account of the blows sustained by him during the lathi-charge which was made by the Police at a meeting held at Chowpatty in the evening of 20-1-1957. The State contends that the printing and publication of the abovementioned writings prejudiced the State and brought the administration of justice into disrepute and that, in those circumstances, the opponents committed contempt of Court. (5) THE editorials, articles, reports and the speech, which are the subject-matter of these applications, were all worded in a similar strain. It would, therefore, be sufficient to illustrate the nature of these writings by referring in details to one of them. The writing to which we would refer as being typical of all the writings is the re-pert published by the opponent P. K. Atre in the issue of the "maratha" dated 22-1-1957. This report alleged that Anant Golatkar, a 25-year old press worker, fell a victim to the lathi-charge made by the Police. The report alleged further that Golatkar had "marks of lathi beating all over his body. His palm and thigh bore the marks of the nails of the shoes of the police. Several persons saw them with their eyes". The report then went on to say that "the police later concocted a story that he (meaning thereby Golatkar) committed suicide by taking poison", Shri P. K. Atre stated in this report that at 11 O'clock in the morning on 21-1-1 957. he was informed by his friend Keshavlao Thakre on telephone that a young worker who was employed in the Rashtravaibhav Press at Girgaum had been killed in the lathi-charge which was made by the Police on the previous day at Chowpatty. Upon receiving the telephone message from Thakre, said Shri Atre in this report, he (Atre) went to the Rashtravaibhay Press, where he was informed by the owner of the Press that on the previous evening Anant Golatkar had gone to the meeting and had died as a result of the lathi-charge which was made near the Tilak statue. Shri Atre went on to say in this report that upon receiving the above information from the owner of the Press, he went to Purandare's Hospital where he was told by an employee of the Hospital that there were marks of beating on the body of Golat-kar. Then Shri Atre alleged in this report that when the dead body of Golatkar was handed over to his relatives, all persons present were shocked to see the remark "the cause of death unknown on Golatkar's death certificate. Then Shri Atre wrote in the report : "where was the reason to dissect the body of a man who died as a result of the police lathi-charge? When we began to think over this we immediately realised that the police must have some plot behind this. We were stunned to see the remark : 'the report of the post-mortem will be available on 28th February' on the death certificate. From it we realised in a moment that the police had hatched a plot to prove that Anant did not die as a result of police lathi-charge but that he died as a result of some other cause". Shri Atre then alleged in the report that the entire portion of Golatkar's back had turned blue ana black by reason of the weal marks. He wrote that there were weal marks on the right shoulder and aim of Golatkar, that the skin was torn and blood had oozed out, that there was a wound en the right elbow, that the lower side of the palm of the left hand bore marks of nails of the shoes of the police, that there was an injury near the thumb, that the palm was swollen, that the thigh bore marks of nails of shoes, that there was an injury on the head behind the ear, etc. etc. After writing all this, Shri Atre said : "the examination of the corpse clearly revealed that Anant fell down in sand as a result of the heavy lathi-charge of the police and that he died as a result of being trampled upon by the police with nailed shoes". Then Shri Atre went on to say that, after reaching the crematorium, the dead body of Golatkar was laid bare and that all present at the crematorium examined the weal marks on the dead body and that, upon the examination of the marks, everybody was convinced that Anant had died as a result of the Police lathi-charge and as a result of being trampled upon with the shoes of the Police. Then Shri Atre referred to the issue of the Evening News which he happened to read and he said that on the very first page of that issue, there was a matter published under the heading 'a dead body found' and it was stated in that issue of the Evening News that the body of a lover who had committed suicide as a result of disappointment in life was found on the chowpatty sands. Shri Atre then made these allegations in his report : "this was an attempt of the police of showing 'martyr Anant Golatkar' who died in the lathi-charge made at Nehru's Chowpatty meeting as a love-lorn person committing suicide owing to disappointment in love and of concealing their own brutal atrocity and of keeping Pandit Nehru's reputation unstained, similar to the one (attempt) in the past in which the police showed the 'martyr Sitaram Ghadigaonkar' who was killed by Vadilal Panchal by a bullet at the time of ' Pandit Nehru's 'speech at Chowpatty on 3rd June, as a goonda making a murderous assault on Vadilal". As I have stated above, this report, which was published by Atre in the issue of the "maratha" on 22-1-1957 is typical of all the writings which are the subject-matter of these applications.(6) NOW, the principal defence taken by all the opponents while resisting these applications is that the Coroner appointed under the Coroners Act, 1871, is not a Court within the meaning, of the Contempt of Courts Act, 1952, and that, therefore, the printing and publication of the abovementioned writings cannot amount to a contempt of Court. The learned Advocate Mr. Chari appearing for the opponents contends, and in our view it is a valid contention, that although the procedure which the Coroner is required to follow under the Coroners Act for determining the cause of death of a deceased person shares in some respects the characteristics of a procedure followed by Courts, he is not a Court within the meaning of the Contempt of Courts Act. The word "court' is not defined in the Contempt of Courts Act and, therefore, as Mr. Justice Bhagwati, delivering the judgment of the Supreme Court in Brajnandan Sinha v. Jyoti Narain, (1955) 2 SCR 955: ((S) AIR 1956 SC 66) (A), pointed out, the expression 'court' must be given its prima facie meaning, namely that it must be a Court of law in the hierarchy of Courts established for the purpose of administration of justice throughout the Union. It is true that there are sections in the Coroners Act which speak of the Coroner as a Court or a Magistrate. Section 17, sub-s. (4) lays down that for the purpose of causing prisoners to be brought up to give evidence, the Coroner shall be deemed a Criminal Court within the meaning of Part 9 of the Prisoners' Act, 1900. Section 19, sub-section (3) provides that for the purpose of S. 26 of Indian Evidence Act, 1872. a Coroner shall be deemed to be a Magistrate. Then there is S. 20, sub-s. (2) which says that for the purpose of S. 20, the Coroner shall be deemed to be a Magistrate. Section 9, sub-s. (4) speaks of an inquest held by the Coroner as a judicial proceeding within the meaning, of S. 193 of the Indian Penal Code and says that for the purpose of such inquest, he shall have and may exercise all the powers of a criminal Court under S. 476 and S. 480 of the Code of Criminal Procedure, 1898. In these sections, however, the Legislature has made it expressly clear by using the words 'for the purpose of in each of the sections as it intended that the Coroner shall be deemed to be a Court or a Magistrate for the purpose of certain sections only of certain enactments. In other words, the intention of the Legislature in enacting the Coroners Act was that the Coroner should be deemed to be a Court or a Magistrate only for a few specified or limited purposes. Furthermore, there is a manifest distinction, and a real distinction, between the words "shall be deemed" or "shall be deemed to be" and the words "shall be", and it is well-settled that the intention of the Legislature must be gathered from the words which it uses. In our view, the fact that the Legislature used the words "shall be deemed" in S. 17, sub-s. (4) and the words "shall be deemed to be" in S. 19, sub-s. (3) and S. 20, sub-s. (2) would show that its intention was that for certain limited purposes, the Coroner was to discharge his functions in a manner in which a criminal Court or a Magistrate would discharge them. It did not intend that the Coroner should be one of the Courts in the heirarchy of the Courts established for the administration of justice throughout the Union. When the sections of the Coroners] Act, to which I have referred above, speak of the Coroner being deemed to be a Court or a Magistrate for certain purposes only, it is clear that he is so for those purposes only and for none else. It is clear, therefore, in our view, that the Legislature did not intend the Coroner to be a Court wit. in the accepted connotation of the term 'court'. As to the accepted connotation of 'court', it is settled upon authority that an essential condition of a tribunal being a Court is that it should have power to give a decision or a definitive judgment which has finality and authoritativeness which are the tests of a judicial pronouncement. As the learned Judges of the Supreme Court observed in Brajnandan Sinha v. Jyoti Narain (A), "unless and until a binding and authoritative judgment can be pronounced by a person or body of persons, it cannot be predicated* that he or they constituted a Court". Now, the Coroner has no power to pronounce a binding and authoritative judgment. He. has power to draw up an inquisition which is to set out the details mentioned in S. 24. His power extends only to the recording of the verdict of the jury or the opinion of the majority of the jurors and forwarding the said verdict or opinion to the Commissioner of Police. The inquisition drawn up by him does not bind the Commissioner of Police. There is no provision in the Coroners Act which invests the inquisition with a binding character. The Commissioner of Police might or might not use the inquisition to assist him in such action as he might think of taking. The inquisition drawn up by the Coroner might say that the death of a person was not occasioned by the criminal act of another, and yet, though it might rarely happen, the Police might prosecute a person whom they might reasonably and upon the material before them suspect to have been concerned in the causing of the death of the deceased. On the other hand, the inquisition might say that the death of the deceased was caused by the criminal act of another, and yet the Police, upon the material available to them, might decide to take no action upon the inquisition. Take the present instance itself, the instance of the death of Anant Vishwanath Golatkar. The inquisition drawn up by the Coroner stated that Anant Vishwanath Golatkar died as a result of the injuries sustained by him, and yet the inquisition did not have a binding effect, in that it bound nobody to take any action against anybody. It is true that S. 29 of the Coroners Act provides that an inquisition shall not be quashed for any technical defect. But that is not to say that it has a binding character which would compel an action to be taken upon it. Thus, upon the application of the well-settled test as to what constitutes a Court, it is clear that the essential sine qua non of a tribunal being a Court is missing in the case of a Coroner appointed under the Coroners Act and, therefore, the Coroner is not a Court within the meaning of the Contempt of Courts Act. We have no doubt that if the Legislature had intended that a Coroner should be deemed to be a Court under the Contempt of Courts Act, it would have expressly stated so when it specifically provided in sec. 17, sub-s. (4). section 19. sub-s. (31 and section 20, sub-s. (2) that he shall be deemed to be a Court for the purpose of certain sections of certain enactments.(7) WE are not unaware of certain sections in the Coroners Act which invest the proceedings held by the Coroner with the trappings of a judicial proceeding. Section 9, sub-s. (2) provides that the inquest held by the Coroner shall ordinarily be held in the Coroner's Court-house. Section 13 speaks of the Coroner summoning and empanelling a jury. Section 14 refers to the Coroner opening his Court by proclamation. Section 16 empowers the Coroner to issue proclamation for attendance of witnesses. Section 19, sub-s. (1) provides that all evidence given under the Act shall be given on oath. Section 22 speaks of the Coroner summing up the evidence to the jury. It also speaks of the jury considering their verdict. But because the proceedings held by the Coroner under the Coroners Act have the externals of a judicial proceeding, the Coroner does not become a Court within the meaning of Contempt of Courts Act. Lord Halsbury said in his celebrated work, Laws of England, Hailsham Edition, Volume VIII, p. 526 : ' Many bodies are not Courts, although they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality. " It is clear, therefore, that although the Coroner, in the discharge of his duty of ascertaining with the assistance of the jury the cause of death of a deceased person, has to act judicially, in the sense that he has to act as provided by Sec. 13, section 14, Sec. 16, Sec. 19, sub-s. (1) and Sec. 22 of the Act, he is not a Court. The true test for finding out whether a tribunal is a Court is whether it has judicial power, that is, power to administer justice. Judicial power, as Stephen says, is a power not merely to examine the truth of a fact, but also to ascertain the remedy by determining the law arising upon that particular fact and to apply that remedy. As I have stated above, the Coroner's power ends with the examination of the truth or otherwise of the allegations made before him by witnesses in the matter of the cause of the death of a deceased person. He is not concerned with the ascertainment of the remedy by determining the law applicable to the facts and circumstances under winch the death might have been caused and of course he has no power to apply the remedy. As their Lordships of the Privy Council observed in the case of Shell Co. of Australia v. Federal Commissioner of Taxation, (1931) A. C. 27s (33), the exercise of judicial power does not begin until some tribunal, which has power to give a binding and authoritative decision, is called upon to take action. I have stated above that the Coroner has no power to pronounce a binding and authoritative decision nor has any power been conferred upon him under the Act to take action upon the conclusion which he might, with the assistance of the jury, reach in the matter of the death of a deceased person, whose cause he is called upon to investigate under the Act. It is, therefore, clear that, upon the application of the test that a Tribunal is not a Court unless it has power to administer justice, in other words, judicial power, it must be held that the Coroner is not a Court within the meaning of the Contempt of Courts Act.(8) THERE is intrinsic evidence in the Coroners Act itself which would show that the Coroner is not a Court within the well-settled connotation of that term. Section 8, sub-s. (2) provides that the Coroner may view and examine the dead body and that such view and examination shall be held in the presence of the Police Officer to whose section the case belongs and if possible in the presence of the relations or friends, if any, of the deceased. Section 9, sub-section (1), clause (e) says that if it appears to the Coroner that there is reason to hold an inquest by jury, he shall proceed to hold such inquest whether or not the cause of death arose within his jurisdiction. Then there is section 25 which lays down that when the jury or a majority of the jury finds that the death of the deceased person was occasioned by an act which amounts to an offence under any law in force in India, the Coroner shall immediately after the inquest forward a copy of the inquisition, together with names and addresses of the witnesses, to the Commissioner of Police. Section 26 says that the Coroner may, where the verdict justifies him in so doing, issue a warrant for the apprehension of the person who is found to have caused the death of the deceased person and send him forthwith to a Magistrate empowered to commit him for trial. Then there is sec-lion 38 which provides that the Coroner may from time to lime, with the previous sanction of the Provincial Government, appoint by writing under his hand a proper person to act for him as his deputy in the holding of inquests. Now, the abovementioned provisions of the various sections clearly furnish intrinsic evidence in the Coroners Act itself that the Legislature did not intend the Coroner to be a Court or a Magistrate for any other purpose except the purposes specifically referred to in section 9, sub-section (4,), Sec. 17, sub-s. (4), section 19, sub-s. (3) and Sec. 20, subsection (2). It need scarcely be stated that no Court, in the hierarchy of Courts established in the Union of India for the administration of justice, is required to hold its proceedings in the presence of the Police, nor is there any obligation upon such Courts to keep the relation; or friends of any person present in the Court. It is also beyond controversy that if the offence has occurred outside the local limits of the Court's jurisdiction, the Court has no competence to proceed with the enquiry or trial in respect of that offence. It is also clear that no Court ever sends, or is called upon to send, its finding to the Police authorities. Also, no Court has power to appoint its own deputy with the previous sanction of the State Government. Indeed, it is clear from the provisions of section 26 of the Act that if the Coroner. thinks that a certain person ought to be committed for trial, then he has no power to take action in that matter. He has to forward the person concerned to a Magistrate empowered to commit him for trial. These provisions of the Coroners Act itself would clearly show that the legislature did not intend the Coroner to be a Court like the Courts in the hierarchy of Courts established throughout the Union for the administration of justice. (9) MR. Chari says that in the present case the hearing before, the Coroner commenced on 19-3-1957 and as the various writings, which are the subject-matter of these applications, were printed and published before 19-3-1957, no question of contempt of Court could arise. On the other hand, the learned Government Pleader says that it is possible to pollute the fountain of justice even before a cause reaches a Court. Now, since we have come to the conclusion that the Coroner is not a Court within the meaning of the, Contempt of Courts Act, it is really unnecessary to go into this aspect of the case. Nevertheless, for examining the learned Government Pleader's contention that the stream of justice may be polluted even before a cause reaches the Court, let it be assumed that the Coroner is a Court. In support of his submission that a contempt of Court may be committed even before a cause reaches a Court the learned Government Pleader relies on the English decision in The King v. Parke, (1903) 2 KB 432 (C), in which it was held that in a case where a person having been charged before the petty sessions with an indictable offence triable only at the assizes, matter was published in a newspaper tending to interfere with the fair trial of the charge, the High Court had jurisdiction to attach the publisher of such matter for contempt of Court, notwithstanding that at the time or the publication the person charged had not yet been committed for trial. In that case, the reason why the publication of articles like those with which the Court had to deal was treated as a contempt of Court was because their tendency and sometimes their object was to deprive the Court of the power of doing that which was the end for which it existed - namely, to administer justice duly, impartially and with reference solely to the facts judicially brought before it. Their tendency was to reduce the Court which had to try the case to impotence so far as the effectual elimination of prejudice and prepossession was concerned. The learned Judges said that it was difficult to conceive an apter description of such conduct than was conveyed by the expression "contempt of Court. " What is important to remember is that in The King v. Parke (C), the accused person was arrested and charged and was called upon to face the fountain of justice. At the date of the publication, which was the basis of the action for contempt, proceedings were already pending against the accused, before the petty sessions. The Court, which was competent to try the accused, was the assizes. Fountain of justice was to operate before the assizes in that case. It was there that the stream of justice was to flow, but the source of that stream lay in the proceedings which were pending against the accused in the petty sessions, and it was held that it was possible to pollute that source by the impugned publication. In the, present case, the facts are quite different. At the dates of the publication of the impugned writings, no person was, and even since then, no person has been, arrested, charged and called upon to face the fountain of justice in connection with the death of Anant Vishwanath Golatkar. When the authorities speak of the stream of justice, they speak of a stream which flows before a Tribunal which possesses judicial power and exercises that power for the administration of justice. As no proceeding was pending against anybody before a tribunal possessing judicial power at the. dates of these publications, no question of polluting the stream of justice and committing contempt of Court arose in this case. (10) THE learned Government Pleader has also referred us to the case of Re Read and Huggon-son, (1742) 26 E. R. 683 (D), where Lord Hard-woke said that one of the kinds of contempt of Court was a contempt in prejudicing mankind against persons before the cause was heard. It is to be remembered, however, that even in that case, the accused had been arrested and charged before the publication of the writing. (11) IN the case of Emperor v. J. Choudhury, AIR 1947 Cal 414 (E), the Special Bench of the Calcutta High Court observed that as a general rule, the essence of the contempt of Court by commenting on a proceeding in a Court was that proceedings should be pending when the offending publication appeared. Their Lordships said that in criminal cases, for a proceeding to be pending, so as to give jurisdiction to punish for contempt, it was not necessary that the accused should be committed for trial or even brought before a Magistrate. It would be sufficient if he had been arrested and was in custody. In the present case, as we have pointed out, none had been arrested at the date of the various publications which are the subject-matter of these applications. (12) AT the worst, it might be contended against the opponents that the publication of the articles, reports etc. , by them had a tendency to interfere with the inquest proceeding which was being held by the Coroner. But, as the Coroner has no judicial power and is, therefore, not a Court and as the inquisition drawn up by him is not a judgment but is merely the forwarding of the verdict of the jury to the Police Commissioner, which the Police might use to assist them in the action which they might intend to take, the comments made and published by the opponents would not amount to contempt of Court. (13) IT is clear that the provisions of section 3 of the Contempt of Counts Act cannot be successfully invoked unless there is a contempt of Court subordinate to the High Court. As the learned Judges of the Supreme Court observed in Brajnandan Sinha v. Jyoti Narain (A) the expression "courts subordinate to the High Court" would prima facie mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purpose of administration of justice throughout the Union. In our view, for the reasons stated above, the Coroner appointed under | the Coroners Act is not such a Court and accordingly the writings printed and published by the opponents and the speech made by the opponent Atre would not attract the provisions of the Contempt of Courts Act. (14) IN the result, all these applications fail and are rejected with costs. We quantify the costs at Rs. 10 per each application. Applications rejected.
"1959 AIR (Bom) 6" == "1958 (60) BOM.L.R 822" == "1958 ILR(Bom) 847"