application to present caw
The principles of law then being clear, how ought they to be applied to the facts of this particular case? In my opinion, those principles prohibited Publication of the District judge’s letter pending the hearing of the notices issued by the Bombay High Court. It was contended by the respondent Gandhi that the letter was written by Mr. Kennedy in his private capacity, and not as District Judge. I think that contention is erroneous. The letter is an official letter written by the District Judge in the exercise of his duties as such and submitting the case to the High Court for orders. As my brother Hayward has pointed out to me, the letter follows the procedure laid down in the Civil Circulars of this Court, in cases of alleged misconduct by a pleader (see p.259). It very popularly sets out what the learned Judge considers to be the facts, both for and against the pleaders, and gives his reasons for bringing the matter before the High Court. Indeed, f he had not done so, he would presumably have been asked by the High Court for further particulars before they took any action. The letter is on lines quite familiar to this Court in other cases, where the Session Judge, in the exercise of his duties as such, brings some matter before this Court with a view to the exercise of its exceptional powers.
I may instance criminal references where the Session Judge for the reasons given in his special letter recommends the revision of some illegal or inadequate sentence which has been passed by a subordinate Court and which the High Court alone can alter in certain contingencies. If, in the present case, the District Judge’s letter contained any statements which the respondent pleaders or barristers contended were inaccurate, that would be a matter for decision at the hearing of the notices, when all they had to say would be fully considered. But even if the letter was written by Mr. Kennedy in his private capacity, I do not think it would make any substantial difference as regards mere publication. The letter would still form part and a most important part of the pending proceedings and the record thereon, and I do not think that any substantial difference can be drawn between it and the other classes of documents mentioned in the authorities cited in Oswald and in Halsbury to which I have already referred. In my judgment, therefore, the publication of this letter was a Contempt of Court.
That brings me to the comments made in the newspaper, including the heading “O’Dwyerism in Ahmedabad” under which the letter was published. These comments are not only comments on pending proceedings, but are of a particularly intemperate and reprehensible character. They prejudge the case and tend to undermine any decision which the High Court may come to at the trial. They also amount in my opinion to what Lord Russell describes as “scurrilous abuse of the Judge as such”. In this latter connection, the question whether the letter was written by Mr. Kennedy in his private or in his judicial capacity becomes immaterial, but as I have already stated it was in my judgment written in his judicial capacity.
According, on the authorities I have already referred to, these comments are clearly Contempt of Court and come within both the classes to which Lord Russell refers and in my judgment they constitute a serious Contempt of Court.