EMPEROR Vs. BENJAMIN GUY HORNIMAN

JUDGEMENT

(1.) On 10 May 1943 we issued notice to the editor, publisher and printer of a daily newspaper known as the "Bombay Sentinel" in respect to a comment which appeared in its issue of 28 April 1943. The respondent is a gentleman named Mr. B.G. Horniman, and apparently he combines in himself the functions of editor, publisher and printer of the aforesaid paper. He failed to appear in response to two successive notices from this Court, and accordingly on 2 September, 1943 we issued a bailable warrant of arrest against him. The warrant was addressed to the Commissioner of Police at Bombay. The latter produced the respondent before the Chief Presidency Magistrate, who released him on bail in terms of our order. The respondent then went in revision to the High Court at Bombay against the order which had been passed by the Chief Presidency Magistrate and in which the latter approved the respondent's surety and released the respondent on bail and directed him to appear before this Court on the appointed date. On 17th September 1943 See ( 44) 31 A.I.R. 1944 Bom. 127 a Bench of the High Court at Bombay, composed of the learned Chief Justice and Sen J. heard the application in revision and in the result the Chief Justice held that the order of the Chief Presidency Magistrate should be set aside as being without jurisdiction. Sen J. expressed agreement with the judgment of the learned Chief Justice. The order of the Chief Presidency Magistrate against which the respondent went in revision was in the following terms: Mr. Horniman be enlarged on bail of Rs. 1000 without deposit with one surety in a like amount to appear before the High Court of Judicature at Allahabad on or before 18 September 1943 at 10-30 A.M.

(2.) This was of course nothing more than giving effect to the order of this Court; it was not an independent order by the Chief Presidency Magistrate. The learned Chief Justice of Bombay has expressed the opinion that the order of this Court was "erroneous and misconceived." I make no comment on this language as used by one High Court in respect to an order passed by another High Court and I will proceed at once to consider whether or not I am able to agree with the order which has been passed by the learned Judges at Bombay. The comment in the "Bombay Sentinel" in respect to which we issued notice for contempt was in the following terms : - The Allahabad High Court, where an Indian happens to be the Chief Justice, alone refused to take any action until it sees with its own eyes a certified copy of the whole Federal Court's Judgment. It would not even accept the word of Sir Tej Bahadur Sapru nor trust newspaper reports. At any rate it will have to act when the certified copies are furnished to it. It is always within the power of a Court to take judicial notice of an evident fact which nobody can deny. Perhaps in this instance the denial of Mr. Amery disturbed the equanimity of the Court. The learned Chief Justice of Bombay says: We have not succeeded in ascertaining what denial of Mr. Amery is referred to, or how it is suggested that it could have disturbed the equanimity of the Allahabad High Court, and without the information it is a little difficult to appreciate the last sentence in the passage I have read, or to understand in what respect the words are considered objectionable.

(3.) But the respondent was presumably before the Court-or at least his counsel must have been there - and he was the best person to explain the meaning of the comment in the paper of which he was the editor, publisher and printer. It appears that on 22 April, 1943 a judgment was pronounced by the Federal Court in which the validity of Rule 26, Defence of India Rules was called in question. On 27 April 1943 an application was preferred to this Court by Sir Tej Bahadur Sapru on behalf of a certain person. Sir Tej mentioned the judgment of the Federal Court, but the learned Chief Justice of this Court, who was seized of the application, naturally declined to pass any order until a certified copy of the judgment had been produced; and he accordingly adjourned the proceedings. A certified copy was produced on 30 April, but meanwhile ordinance 14 of 1943 had been promulgated on 28 April and the application was accordingly dismissed. Our attention has been drawn to the "Leader" of 28 April, in which what purports to be an official statement issued by the India Office was published and the last few lines of the statement read as follows: It is understood that the issue of an Ordinance to remove the technical defect is under urgent consideration and no practical question arises of the release of the detinues.