STATE OF BIHAR Vs. SHANKAR LAL KHIRWAL

JUDGEMENT

(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.

(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:--