B A RATHER Vs. H K DUA

JUDGEMENT

(1.) On 17/03/1994 we had pronounced the operative part of the judgment whereby apology of respondent No. l was accepted and respondent No. 4 was convicted for committing contempt of this court and was sentenced to imprisonment till the rising of the court and payment of fine of Rs. ten thousands. We are now giving our reasons for the conclusion that we arrived at on 17/03/1994.

(2.) It shall be advantageous to refer to the background in which these contempt proceedings under S.94 of the Jammu and Kashmir Constitution came to be initiated by two esteemed members of the State Bar practising at Srinagar, namely S/Shri B. A. Rather and S. K. Sharief Geelani, Advocates. ln the issue of 7/05/1990 of the Hindustan Times, New Delhi, a publication under caption "Jagmohan faces acid test" datelined Srinagar, 6/05/1990 came to be noticed by the petitioners. This publication was written by Shri Anil Maheshwari, respondent No.4 who was at the relevant time the correspondent of this newspaper. We are told that even at present Shri Anil Maheshwari is on the staff of the Hindustan Times, New Delhi. Broadly speaking the publication revolves around the then prevalent situation in Kashmir valley which had undoubtedly been afflicted by terrorism, militancy and other forms of widespread disturbances. It started with a report regarding the decision of the State administration to shift its secretariat and other offices from Jammu and Srinagar on the eve of the annual darbar move. It noticed some improvements in the situation in the valley with the opening of primary and middle schools and the shifting of a majority of government staff from Jammu to Srinagar and the provision of Government accommodation to them under the tight security. It was also mentioned that the terrorists have stepped up their activities afresh in a bid to frustrate the move of the State Government to regain normalcy and that the Kashmiri Pandits had become the soft targets by selective killings. The message of the terrorists was to create confidence among their ranks and sympathisers. The current drive of the State administration to flush out was also mentioned in the story. It was revealed that a group of officers, pretending as progressive and secular was disgruntled and was making continuous attempts to settle score with the State Governor through media and that more than one hundred policemen had been dismissed from service during the last three months on account of their links with the terrorists. With the recent arrest of some traders, businessmen and officers on account of their active involvement with the terrorists a dent had been made on the morale of such elements who out of adventurism or to avoid wrath of subversives used to finance the terrorists. A mention was made in the story about Mian Qayuum, leader of the local Bar Association whose anticipatory bail order had been stayed by the Supreme Court, who had slipped from the back door of his house in the locality near Nowgam on the outskirts of the city. Then came the passage which is the subject matter of the present contempt proceedings. Even while we have reproduced sketches of the aforementioned various items forming part of the publication, it shall be desirable and prudent to reproduce the text of the entire passage dealing with the subject matter of this contempt application which reads thus :-

(3.) Because prima facie, the aforesaid passage relating to the activities of the State judiciary both at the subordinate level as well as in the High Court was considered to be objectionable and prima facie contemptuous in character, these contempt proceedings were initiated by the petitioners against the Editor, Executive President, Printer and Publisher and the correspondent of this newspaper. On 24/05/1990, a Division Bench of this court sitting at Srinagar issued notices to the respondents to show cause as to why they should not be dealt with under S. 94 of the Constitution of JandK State for committing contempt of the High Court and the court of Sub-Judge, Shopian as also members of subordinate judiciary. Since for a long time, notices could not be served upon the respondents and because the court was convinced that there was no other alternative, it vide its order dated 4-10-1992 directed the issuance of bailable warrants against the respondents to be executed through Police Commissioner, Delhi. While the execution of these warrants was in progress, in the meanwhile, vide order dated 1/12/1993 passed in Criminal Transfer Application No.62/91, this contempt application which had originally been filed in the Srinagar wing of this court was transferred to its Jammu wing. It was after the transfer of the petition from Srinagar to Jammu that on 28/12/1993 for the first time the respondents caused their appearance in the contempt application before the court when they appeared through Shri S. K. Puri and Shri R. K. Gupta their counsel. On that day, i.e., 28/12/1993, respondents also submitted their reply to the contempt application. We, however, found that the reply submitted by the respondents, even though styled as an unconditional apology, was in fact a conditional one because the respondents had attempted to offer justification for the contemptuous and scandalous writing against this court and its sitting Judges. We also observed that Mr. Puri, learned counsel appearing for respondents has made a feeble attempt to offer explanation in support of the act of the respondents in publishing the news item in question but we refused to consider any such explanation offered at that time keeping in view the contents of the publication and the reply submitted. We accordingly directed the production of respondents Nos. 1 and 4 in the court. We also gave liberty to the respondents, if they so chose, to submit apologies in any other form, as was prayed for by Mr. Puri. On 7th Feb. 1994 respondents Nos. 1 and 4 caused their personal appearance along with their learned counsel. This time unconditional apologies were tendered by the respondents and on their behalf. It shall be advantageous to reproduce these apologies which read thus :