THE ATTORNEY- GENERAL, Appellant, and VAIKUNTHA VASAN, Respondent

126-NLR-NLR-V-53-THE-ATTORNEY-GENERAL-Appellant-and-VAIKUNTHA-VASAN-Respondent.pdf


656
NAGAliINGAM J.—The Attorney-General v. Vaikunthavasan.
1981 Present : Nagalingam J., Basnayake J. and Gunasekara J.
THE ATTOBNEY-GENEBAL, Applicant, and VAIKUNTHA-VASAN, Bespondent
S. C. 358—In the matter of a Bule Nisi for Contempt of CourtCOMMITTED IN RESPECT OF M. C. MATARA, 23,219
Contempt of Court—Tender of apology—Measure of punishment.
The respondent, who was the editor, printer and publisher of a newspaper,published an article containing matter which was calculated to prejudice thefair trial of a case that was then pending before a Magistrate's Court. Headmitted the offence, but denied that he ever intended to commit a contemptof court. Expressing contrition, he pleaded that the offence was unwittinglycommitted owing to his inexperience as a journalist.
Held by Basnayake J. and Gunasekara J. (Nagalingam J. dissenting), thatin the circumstances a sentence of line should be passed. An offender guiltyof contempt of court should not be permitted to go unpunished merely becausehe acknowledges his offence and expresses regret.
In the matter of a Buie Nisi issued under section 47 of the CourtsOrdinance.
12. JR. Crossette Thambiah, K.C., with A. C. M. Ameer, Crown Counsel,for the Attorney-General.
O.E. Chitty, with S. P. Amarasingham, Vernon Wijetunge and N.Kanekaratne, for the respondent.
Cur. adv. vult.
October 10, 1951. Nagalingam J.—
At the instance of the Attorney-General a Buie was issued on therespondent calling upon him to show cause why he should not be punishedfor contempt of Court in that he being editor, printer and publisher of aweekly English newspaper called “ People’s Voice ” published in theissue of the said newspaper dated 20th April, 1951, an article entitled“ Threat to Murder Leftist Leader—Hakmana Police Bun Biot ” whichsaid article was calculated to prejudice the fair hearing of the MataraMagistrate’s Court case No. 23,219 before this Court in its Assizejurisdiction.
The article referred to an incident that had taken place at Hakmanaon 14th April, 1951, in which at least one person lost his life as a resultof receiving stab injuries and certain others were wounded. The articlewas published, as stated earlier, on 20th April, 1951, and the respondent inhis affidavit states that to the best of his knowledge and belief at thetime he published the article he was not aware of any proceedings havingbeen instituted in a court of law in respect of the incidents which werethe subject of the article. The affidavit of the Assistant Superintendent
NAGALINGAM J.—The Attorney-General t>. Vaikuntliavasan
669
of Police, however, clearly establishes that on 15th April, 1951, the Magis-trate of Matara commenced an inquiry under the provisions of theCriminal Procedure Code. That inquiry obviously was one in terms ofsection 153 of the Criminal Procedure Code and constituted proceedingsbefore a Court of Law.
Learned Counsel for the respondent in attempting to show causesuggested that a possible view was that there were no legal proceedingsin a Court of Law at tlje date of the publication as no charge had beenframed against any accused person, and that therefore the publicationdid not amount to a contempt of Court in that it could not be said that itcould have been the intention of the respondent in publishing the articleto prejudice the fair trial of any case.
I do not think this contention is entitled to any weight. When areport is made to a Magistrate under section 148 (1) (6) of the Criminal ■Procedure Code, it could properly be said for the purpose of the law ofcontempt that a proceeding has commenced which is pending before acourt of law and it is immaterial whether in the report any person isnamed or not. The cases of King v. Parke 1 and Rex v. Clarke a supportthis view. I do not, however, wish it to be understood that in no cir-cumstance would a rule for contempt of Court lie where a publication ismade calculated to prejudice the fair trial of a case that may thereafterbe instituted in respect of incidents that may have occurred earlier.In other words, the question whether in fact at the date of publicationa proceeding should be pending at all, is a question that must be decidedwhen it does arise and in appropriate proceedings.
The respondent, however, in this case has unreservedly admitted thecommission by him of a contempt and has tendered his apologies andthereby submits himself to the mercy of the Court. In thesecircumstances there can be little doubt but that the rule should be madeabsolute.
The further question however remains to be considered as to what,if any, should be the punishment that should be imposed, on the re-spondent. In regardtothisquestion I think it isbut proper and right
that a court of lawshouldtake into consideration all mitigating cir-
cumstances and temper justice with mercy. The respondent states,and it has not been challenged, that he started this paper in Januarythis year without any previous experience of journalism, he havingbeen employed as a clerk till 1950 after he had left school. He alsosays that he published the article as an item of public interest and ofnews value but withoutanyintention to influenceor prejudice the trial
of the case. Thereisthefurther circumstancethat the publication
was made at a very early stage of the proceedings, and the effect of sucha publication at that date (to prejudice mankind against a party to thecause) would have been almost nil. Besides, the respondent has at theearliest possible opportunity without raising any technical or other
plea made a full and complete apology..
* (1903) 2 K. B. 432.
4I-N. L.R. Vol.-Liii ;
(1910) 103 L. T. 636.
560
NAGAIjINGAM ,J.—The Attorney-General v. Vaikunthavasan
In the case of Hunt v. Clarke l, Lord Justice Cotton in dismissing anappeal from an order refusing an application to issue a rule laid downcertain principles which have a large bearing on the question of sentence:
“ My view was in substance this, that where the offence complainedof is of a slight and trifling nature, and not likely to cause any sub-stantial prejudice to the party in the conduct of the action or to thedue administration of justice, the party ought not to apply, andis mere waste of time to do so, and that it is not merely a proceedingin order to have the case properly conducted and justice properlyadministered, but that it is a mere waste of time to attempt to throw-costs on the person who has done the act, where it is obvious therecould not be any case calling upon the Court for committing, whichis a more serious matter to be done, and only to be done when theadministration of justice really requires it. ”
In our own Courts this view of Lord Justice Cotton has been reflectedparticularly in the case of Veerasamy v. Stewart 2 which is the last of thereported cases in our Courts on this matter ; but before I deal with thisease I shall briefly refer to the earlier cases which were cited at the Bar.
The case of Abdul Wahab v. Perera 3 was a case where the respondentsexpressly published leaflets containing matter which was calculated toprejudice the fair trial of a case that was then pending before the Magis-trate’s Court. In that publication certain inflammatory language wasalso used calculated to excite racial feeling. The learned Chief Justicewho delivered the judgment refers to this aspect of the article beingcalculated to excite racial feeling and social indignation. It may be amatter of doubt that such a circumstance should have been taken intoconsideration even in regard to the sentence, for an incitement of racialfeeling is one which is not a matter properly within the law of contemptof Court. There are other provisions of .the law under which a trans-gression of that kind can be punished but the point to be rememberedis that the object of the publication of the leaflet was to summon ameeting with a view to bring to the notice of the public not only theheinous -nature of the crime but also the guilt of the accused whose namewas specifically disclosed. That such an organised attempt at inter-ference with the course of justice is a serious case of contempt there canbe little doubt and in that case the Court imposed the fine of Rs. 200on each of the respondents. Arising out of the same incident anotherrule wasrissued on a leading Proctor for his participation in the publicationof the notice and for that he did preside at a public meeting in pursuanceof the notice. In that case, in view of the position the respondent heldin the public fife of the area and in view of the fact that he was a livewire behind the publication, he was sentenced to .pay a fine of Rs. 500.
In 1938 in the case of Jayasinghe v. Wijesinghe *, where again therewas a publication of a notice the avowed object of which was to makereference to certain criminal pleadings then pending and the effect ofwhich would -have been to prejudice the accused in the case in his defenceat the trial, the Court sentenced the respondent to pay a fine of Rs. 100.
(1889) SS R. J. Q. B. D. 490.* (1936) 39 N. L. R. 475.
(1941) 42 N. L. R. 481.‘ (1938) 40 N. L. R. 68.
BASNAYAXE J.—The Attorney-General v. Vaikunthavasan
561
I now come to the case Veerasam-y v. Stewart et al. 1 which was a casefsu more serious than the present one in its effect in regard to prejudicingthe fair trial of the accused person concerned in the case and that was acase where the respondent maintained the position that no offence hadbeen committed by him by the publication. An apology was tenderedonly after the Court had held that a clear contempt of Court had beencommitted. Even in those circumstances, Soertsz J. while making therule absolute gave the following as his reasons for not imposing anypunishment: —
"In all these circumstances, and particularly in view of the factthat I have found that it was not the purpose of the respondentswhen they published these articles to cause prejudice to the accusedor to interfere with the course of justice, I think that it will be sufficientif I order that the rule be discharged, in view of the apology that hasbeen tendered by the respondents. This apology, I think, will servethe purpose the petitioner had in view in making this application. ’ ’Applying these principles to the present case where the respondentat the beginning of his career as a journalist without any previousexperience and without any intention to prejudice the trial of the casepublished the article, and that at a very early stage of the proceedingsin the Magistrate’s Court, resulting in its having little or no effect inregard to the actual trial of the case, I think the ends of justice would beamply met if the rule were made absolute and no further punishmentwere inflicted.
My order therefore is that the rule be made absolute.
Basnayake J.—.
On the application of the Attorney-General a Rule Nisi forcontempt of Court was issued on the respondent KriehnapillaiVaikunthavasan. The allegation in the application was that on the – 20thday of April, 1951, the respondent published in the issue of the newspapercalled " People’s Voice ” an article entitled " Threat to Murder LeftistLeader—Hakmana Police Run Riot ”. That article contained thefollowing objectionable passages: —
“ Under the auspices of the Rural Development' Movement theD. R. O. and Medical Officer of Health had organised a National DayCelebrations at Hakmana on New Year Day on the 14th. The celebra-tions took place at the police station.
In spite of the exhortations of the Minister for State and his prohi-bition stalwarts the consumption of liquor seems to have been one ofthe principal part of the celebrations. Quite a number of RichardAluvihare ‘ most efficient ’ police force were dead drunk.
A quarrel arose between one of the local residents Warnasuriya anda police constable. It led to words and others had to intervene andthe resident was persuaded to go home where he was locked insidehis house by relations who were afraid of further trouble.
But our ‘ efficient ’ police force was not going to leave it at that.Three police constables who were playing a prominent part in thecelebrations, one of whose main aims was to inculcate crime prevention
1 (1941) 42 N. L. R. 481.
•562
BASNAYAKE J.—The Attorney-General v. Vaikunthavaean
in the area, went in search of Wamasuriya. Meeting his brother,Albert, on the way they stabbed him. Then it was a case of stabbingeverybody who came on the scene. One man, Bambis Silva, wasstabbed to death. Another woman died of injuries later. Severalothers are lying in a critical condition in hospital ….
The incidents took place within a few yards of the police station.
How do you account for this wanton lawlessness on the part of thepolice force ? Is it that they were just drunk or had run amok ?By careful investigation and discussion with a number of people of thearea I have come to. the conclusion that this sort of behaviour is partof the deliberate attempt of the police, acting on instructions, tointimidate and terrorise the people of the area.
We must remember that- Hakmana is in the Matara District—theBed stronghold, the Stalingrad of Ceylon) as it is usually called. TheMember for Hakmana is a Communist. Hence the police have beengiven instructions to teach the people of the area a good lesson for the‘ crime ’ of having voted Communist and to bring them round to asuitable frame of mind before the next general elections. They havebeen instructed to use force indiscriminately and no questions wouldbe asked. In obeying these instructions to the letter the poor policeconstables aresometimesnot able to drawa line between communist
supporters andU. N. P.supporters. Thisis what happens whenthe
police is trained to kill ….
The crime at Hakmana .was committed with weapons taken fromthe police station. Theconstables left after making threats inthe
hearing-of theInspectorof Police and yetthe Inspector went tothe
scene only after the killings. The weapons were handed over to himby the constables and the Inspector is still on duty ….
The position in the Southern Province has degenerated to suchfantastic proportions that the other day the Superintendent of Police,Mr. Colin Wijeyasooriya, had the audacity to send a message to Dr. *S. A. Wickremasinghe, the communist leader, through Mr. PremalalKumarasiri, that if the Doctor would not – discontinue his attacks onthe police, he would be opening himself to assault and risk of murderby the police ~.
The . U. N. P. Government must hold itself responsible before thepeople for these police brutalities and murders.
When the Buie came up for hearing, counsel for the respondenttendered an affidavit in which the respondent while admitting his offencedenied that he ever intended to commit a contempt of court. Heapologised and expressed his. contrition and offered to publish an un-qualified withdrawal of the • offending passages. He pleaded that theoffence was unwittingly committed owing to his inexperience as ajournalist.
In the course of his affidavit he stated—
(a)i that he was the editor, printer, publisher, and proprietor ofa weekly English newspaper called “ People’s "Voice
BASNAYAKE J.—The Attorney-General *. Vaikvnthavasan
668
(ft) that he printed and published the article in question,
• (c) that he was not the author of the article,
that he started the publication of the paper in' question only
in January, 1951,
that he had no previous training or experience as a journalist
as he had been a clerk since he left school,
(J) that he had no intention of prejudicing the fair hearing of thecase against the assailants of the deceased Xiambis Silva,
that he was not aware that at the time he published the
article legal proceedings had commenced f
that his paper is printed and published and mainly circulated
in Colombo and that no more than 40 copies were incirculation in Matara and Galle.
The only question that now remains for consideration is the sentencethat should be passed on the respondent. Learned counsel pleaded thatthe respondent should be treated as a first offender and discharged with awarning and not punished. He relied strongly on the case of Veerasamyv. Stewart et al.1.
According to the passages quoted in the application of the Attorney-General, it would appear that the writer purported to give a first-handaccount of the events that occurred at the National Hay Celebrations atHakmana on 14th April, 1951. Now the respondent’s publicationwas made on 20th April, 1951. Marambe Liyanage Lamb is Silvahad been killed on 14th April, 1951, and the Magisterial inquiry into hisdeath had commenced on 15th April, 1951. The inquiry stood adjournedfor 28th April, 1951. In a ease of contempt of this nature the questionthat arises for decision is not whether the publication in fact inter-feres, but whether it tends to interfere with the due course of justice,and if it tended to prejudice either the mind of the judge or any otherperson who would have to consider the case, then it is a publication thatought not to be allowed. There can be no doubt that the article in theinstant case, which contains a highly coloured and far from impartialaccount of the events leading to the death of Lambis Silva, tends tointerfere with due course of justice.
In regard to the question of sentence I find myself unable to take theview that the respondent should go unpunished. Contempt of Court isa very serious offence and is ordinarily punishable with imprisonment.Tlie case books contain instances in which” offenders have been punishedwith a fine. The instancesinwhichguiltyoffenders have been dis-
charged with a warning are rare. The most recent English case whichis one of those rare instancesisRex v.Weisz& another a. The reasons
for the course taken by theCourt arestatedthus in the judgment of
Lord Goddard:
“ We have now to consider what penalty, if any, should be imposedon Mr. Martin. We do not overlook the fact that he sent the papersto counsel, who settled the indorsement. We have not been asked tohear any application againstcounsel, andtherefore only say this;
1 (1951) 2 T. L. R. 337 ; (1951) 2 All E. R. 408.
1 (1941) 42 N. L. R. 481.
664
BASNAYA KB J.—The Attorney-General o. Vaikunthavasan
no doubt, had counsel been asked to explain his action, he wouldhave said, as Mr. Martin has said, that this form of indorsement hasbeen often used in these cases without its ever having been said tobe a contempt, and he might well have pointed particularly to Ottgen-heim v. Ladbroke & Co. Ltd.'1. We recognize that there is considerableforce in this, and as we have already said with regard to the solicitorit ought to be regarded as strong mitigation. We hope, however,that counsel as well as solicitors will always bear in mind that theyowe a duty to the Court as well as to their clients, and that a mainobject in requiring the signature of counsel or a solicitor to pleadingssettled by them is to prevent issues, whether called feigned or fictitious,from being presented to the Court. Henceforward there will be noexcuse for using this form of indorsement, or, we would add, one suchas ‘ Money due under a contract in writing made between the parties ’,when the claim is simply in respect of gaming or wagering. Whileholding Mr. Martin guilty of a contempt, we acquit him of anyintention to act in contempt of the Court, and he has, by his counsel,offered a full apology. We therefore impose no penalty on him . . . ."
There appears to be an impression that an apology to the Court erasesthe effect of a contempt of this nature. In order to remove thatimpression I wish to repeat here the words of Darling J. in Rex v. Clarke *:“ It is not to the Court that an apology can do any good. Apologyis due to the person whose trial might have been prejudiced, and thepublic whose interest it is to sec that justice is fairly administeredin this case, and not to the Court which has no feeling in the matter.”
For, as was observed by Darling J. in the same case:
“ When one does repent of a wrong we will not punish him as thoughhe still persisted in his wrongdoing.”
Now, in regard to the case on which counsel relied, I wish to observewith the greatest respect that the decisions collected therein to my mindafford no support for the course taken, nor am I able to reconcile theconcluding paragraph of that judgment with the earlier observations,three passages of which I quote below: —
“ It may well be that when the true facts are known these descriptionsmay fit the crime, but the use of these expressions at this stage iscalculated to prejudice the-accused in regard to the charges preferredagainst them.”
“ I fully appreciate this and I should not have been disposed to takeserious notice of the petitioner’s complaint if it related only to the useof the word * murder ’, and if that word occurred in this first editorialonly …. But the difficulty here is the insistence upon the factthat the offence is murder. ”
“ Again it may well be that when the true facts are ascertained bythe proper tribunal these statements may prove to be correct, but to sayall. this at this stage when the case is due to be tried is calculated toprejudice the accused. ”
1 (1947) 1 AU B. R. 292.
* (1910) 103 L. T. 636.
Jafferjee v. The Attorney-General
666
I find myself unable to regard that case as an authority for theproposition that an offender guilty of contempt should go unpunishedwhen he acknowledges his offence, expresses regret, and offers to makeamends. The instances where offenders guilty of contempt even thoughof a technical nature have been punished despite the tendering of anapology an'd the expression of regret are many. It is sufficient to mentionhere the cases of In re Labouchre & another—Ex parte the ColombusCompany, Ltd. 1 and Greenwood v. The Leather-Shod Wheel Company,Ltd. *. The latter case is similar to the instant case in many respects.There too the respondent admitted his offence and expressed his regretboth by affidavit and through his counsel. He had no direct interestin the prosecution of the action, he had been , editor of the paper forhardly a month when the contempt was committed, he was a youngman and had but little experience in the management of newspapers,and he offered to publish an apology in his paper. Despite all this hewas asked to pay £20 and the costs of the applicant. When dealingwith the question of punishment it must be remembered that the juris-diction of the court exists not only to prevent the mischief in this partic-ular case, but also to prevent similar mischief arising in other cases. Ihave given very careful thought to the question of punishment. Inview of the repentance of the respondent and the mitigating circum-stances, I refrain from imposing a sentence of imprisonment. I sentencethe respondent to pay a fine of Rs. 250. If he does not pay it, he willundergo six weeks’ rigorous imprisonment.-
I make no order as to costs as these proceedings are of a quasi-criminalnature and under our law costs cannot be awarded in criminal or quasi-criminal proceedings except in the case provided by section 352 of theCriminal Procedure Code.
Gunasekera J.—I concur in the order proposed by my brotherBasnayake.
Rule made absolute.