IN RE M Vs. JAYARAJAN

JUDGEMENT

(1.) WHAT IS THIS CASE ABOUT? In this case initiated suo motu under Rule 7 of the Contempt of Court (High Court of Kerala) Rules 1988, (hereinafter referred to as ''the Rules" for short) the respondent, M.V. Jayarajan, Ex-M.L.A. and a member of the State Committee of the Communist Party of India (Marxist), is called upon to answer a charge that on 26/06/2010 he made a public speech at Kannur making discreditable and denigrating remarks against the Judges of the High Court who rendered Ext. C5 final judgment dated 23/06/2010 and the said speech was reported in the print and visual media and that the respondent thereby committed "criminal contempt" within the meaning of Section 2 (c ) of the Contempt of Courts Act, 1971 (hereinafter referred to as "the Act" for short) and punishable under Section 12 thereof.

(2.) POST INSTITUTIONAL IMBROGLIO This case was originally instituted as a petition for contempt filed under Rule 3 (c ) of the Rules by one Advocate P. Rehim but without the consent in writing of the Advocate General as enjoined by Section 15 (1) (b) of the Act. Since the contempt petition was not one filed with the written consent of the Advocate General, it could only be treated as an "information" within the meaning of Rule 7 of the Rules and was liable to be placed before the Chief Justice or such other Judge as may be designated by him on the administrative side, to consider whether it was expedient or proper to take action under the Act as provided under Rule 7 of the Rules. That was the interpretation which had been placed on Rule 7 of the Rules by two Division Bench rulings of this Court in Kallara Sukumaran v. T. M. Jacob, 1986 KHC 13 : 1986 KLT 32 : 1985 KLN 806 and One Earth One Life v. Sindhu Joy, 2007 (1) KHC 982 : 2007 (1) KLT 897 : ILR 2007 (1) Ker. 680 : 2007 (1) KLD 495. However, another Division Bench of this Court in Suo Motu Contempt, 2009 (1) KHC 356 : 2009 (1) KLT 695 had taken the view that for initiating suo motu criminal contempt the Chief Justice is required to cause the matter placed before the Full Court of the High Court for decision as provided under Section 15 of the Act. In the light of the conflict of judicial opinion this case was referred to a Full Bench. Eventually, a Full Bench of this Court headed by Chief-Justice Jasti Chelameswar, in Rehim v. M.V. Jayarajan, 2010 (4) KHC 263 : 2010 (4) KLT 286 : 2011 (1) KLD 76 : ILR 2010 (4) Ker. 165 : AIR 2011 Ker. 12 overruled Suo Motu Contempt5 and affirmed Kallara Sukumaran and One Earth One Life. In accordance with the verdict of the Full Bench, the petition was placed before the Hon'ble the Chief Justice for appropriate action on the administrative side. The learned Chief Justice designated the Hon'ble Justice Pius C. Kuriakose, a senior Judge of this Court to consider the matter for preliminary hearing under Rule 7(ii) of the Rules. The matter was considered by the Hon'ble Judge who was of the view that it was expedient to take suo motu action under the Act. That is how this case came to be placed before the Division Bench for consideration on the judicial side.

(3.) THE EVIDENCE Witnesses in support of the charge A. CW I (P. Rehim) is an Advocate practicing in the Courts at Thiruvananthapuram and occasionally in the High Court for the past 27 years. He is also the General Secretary of the Indian Lawyers Congress and also the officer-bearer of other organization as well. He deposed that he has been working in the field of social service for the past 37 years. He had heard the speech of respondent as telecast by the Asianet and Indiavision the CDs of which were marked as Exts. X1 and X2. He had also read the news about the offending speech as reported in Mathrubhumi, Malayala Manorama, Deepika and Mangalam dailies. Exts. C1 to C4 are copies of the said dailies and Exts. C1(a), C2(a), C3(a) and C4(a) are the news items pertaining to the offending speech in those dailies. Ext. C5 judgment dated 23/06/2010 against which respondent reacted in the offending speech made on 26/06/2010, was marked through CW 1. He also proved Ext. C6 series of orders as per which the Division Bench which passed Ext. C5 judgment dismissed the review petitions. CW 1 deposed that the offending speech was made by respondent in a manner undermining the dignity and majesty of the High Court and that the Judges who rendered the verdict banning public meetings on road sides were attacked in person. Ext. X1 and X2 CDs were played in open Court and CW 1 stated that he had heard the news telecast by both Asianet and Indiavision. He stated that he had filed a petition before this Court requesting to take action against respondent for committing contempt of Court. In cross-examination CW 1 admitted that he did not hear respondent directly but only through the media. He further admitted that personally he fully endorses the view taken by the Judges in the verdict and that eventhough as a social worker he has some difference of opinion, his organisation did not discuss the verdict of the High Court in public. He stated that Mathrubhumi daily, Malayala Manorama daily, Asianet T. V. and Malayala Manorama T.V. were also respondents in his contempt petition but they were arrayed as such not for committing contempt of Court but for reporting the news regarding the offending speech and no releifs were sought against them. According to him the Advocate General was made a respondent since consent of the Advocate General was required to be obtained. He further deposed that the words "Shumbhanmar" and "Pulluvila" were not used in his speech by respondent in different context but in an inter-related manner. He denied the defence suggestion that the expression "Shumbhanmar" was used to denote erroneous judgments pronounced by Judges. He also denied the defence suggestion that he filed the contempt petition out of his political enmity towards respondent and stated that he has no political antagonism against respondent. B. CW2 (Byju) is the cameraman attached to a local television channel at Kannur called City News Channel. He has been working as the cameraman in that channel from November 2002 onwards. 26/06/2010 was a hartal day at Kannur. He had shot all the events on that day to be telecast as news item. He had covered the speech made by M.V. Jayarajan on that day . Ext.X3 is the CD containing the news item pertaining to the speech of M.V. Jayarajan shot by him and which was telecast in City News Channel. He had truly and correctly shot the speech while Jayarajan was making the speech at Kannur . All the news items covered by him were shot in the D.V. cassette which was handed over to the News Editor, N. P. Santhosh (CW 3) . In cross-examination he stated that every programme shot in the D.V. cassette will be captured in the computer in the office of the News Editor and the necessary portions will be saved in the computer and each news item will be transferred to the C.D. Ext. X3 C.D. which was played in Court does not contain the full speech of Jayarajan. But his D.V. cassette contained the complete speech. Whatever is recorded in the D.V. cassette will get erased when fresh matters are shot on the D.V. cassette on the next day. He had heard the entire speech of Jayarajan. The actual speech of Jayarajan might have lasted for 35 to 40 minutes. The duration of the programme in Ext. X3 C.D. is only two minutes. There were good things spoken about Courts in the speech . The overall speech did not have the effect of undermining the Court . He was born and bought up at Kannur. To a leading question put to him that the word Shumbhan in that part of the State means a knowledgeable person uttering some nonsense , the witness answered that the said word is used among friends when some nonsense is spoken. The venue for the speech was some distance away from the Kannur bus stand . Since it was a hartal day the main listeners were the protagonists of the hartal. In re-examination he clarified that the opinion which he gave regarding the word "Shumbhan" was his personal opinion and that it depends on the context in which it is used. C. CW 3 (N. P. Santhosh) He is the news editor of City News channel, Kannur and has been working as such since 2002. News items are telecast through City News Channel under his responsibility. He makes arrangements for telecasting maximum news within the time allotted for telecasting the news. He will examine the D.V. Cassette submitted by CW2 and will finally select for telecast matters having sensational news value. The speech of Jayarajan was telecast since it was in response to the verdict of the High Court. The relevant portion of the speech which was telecast is contained in Ext. X3 C.D. The matter which was read by the News reader and the caption appearing below the speech of Jayarajan were both prepared by him. In cross-examination he stated that he is aware that publishing words which are tantamount to contempt of Court will also amount to contempt of Court. What was necessary for telecasting for the purpose of news was taken from the full speech of Jayarajan contained in the D.V. cassette after editing. D. CW 4 Saseendran is the Bureau Chief of the Kannur Unit of the Mathrubhumi daily and is working in that capacity from the year 2000 onwards. Ext.C1 is the Mathrubhumi daily dated 27/06/2010. It contains Ext.C1 (a) news item titled ...[VERNACULAR TEXT OMMITED]... . The said news item was reported by one of the reporters of Mathrubhumi by name Biju (CW 8) . He thought it relevant to publish the news item since it was something against the Court . He forwarded the news item to the News Editor who gave the approval for publishing the news item. Ext.C1 (a) news item was published in all the editions of Mathrubhumi and bears the same text. In cross-examination he stated that eventhough Ext.C1 is the Cochin Edition of the Mathrubhumi daily, Ext. C1(a) news item was published in all the 14 editions of Mathrubhumi. To the question whether he was aware of the fact that publication of contemptuous news item will amount to contempt, the witness answered that it was published since it was the statement of somebody else and he thought that there was news value for the news item. He said that eventhough the news item will be generally published after editing, the speech as such will not be edited. He admitted that the irrelevant portions will be omitted from the speech. According to him the bureau chief, the news editor or the editor may decide as to what is relevant or what is irrelevant. He stated that he himself selected the caption which was prepared according to his understanding of the speech. He clarified that what was reported by the reporter was the original version of the speech. E. CW 5 (Kesava Menon) - He is the Editor of Mathrubhumi daily and in-charge of all the 14 Editions of which four are outside Kerala. He is a B.A. LLb Degree holder. Prior to his service in the Mathrubhumi daily he was working with the Hindu for about 25 years. The total circulation of Mathrubhumi daily is 12 lakhs plus. He is responsible for the publication of news items in all the editions of Mathrubhumi daily. Ext.C1 is the Cochin Edition of the Mathrubhumi daily dated 27/06/2010. Ext.C1 (a) news item pertaining to the speech of M.V. Jayarajan was published in all the 14 editions of the daily and the text of the news item was the same. After the publication of Ext.C1 (a) news item there was no complaint from any quarters regarding the accuracy of the news. The news item was harshly critical of the Courts. In cross-examination, to the suggestion put to him that he will not publish the news item if it amounts to contempt of Court the witness replied in the negative and said that if the news item has got news value and if it is to be put the public domain it would be published even if it amounts to contempt. The witness added that his first duty was towards the readers. He stated that he is not fully aware that reporting this news item which amount to contempt will be contempt. To the suggestion that he would not have published it if he was fully aware , the witness answered that if the matter was of great public importance he has a duty to publish it even at his risk. To the further question put to him that was he fully aware of the fact that he was committing contempt of Court for publishing the news item, the witness answered that he was only making a verbatim report of what someone else had said. He further deposed that he has the discretion to decide whether the news item should be avoided or not. F. CW 6 (Sujith) was the Kannur Reporter of Mangalam daily . He proved Ext.C4 (a) news item in Ext.C4 copy of Mangalam daily dated 27/06/2010. The caption for the news was ...[VERNACULAR TEXT OMMITED]...