judgement:
Appeal No. 230 of 1955.
Appeal from the judgment and order dated October 5, 1953, of the Patna High Court in M. J. C. No. 128 of 1953.
Mahabir Prasad, Advocate General for the State of Bihar and R. C. Prasad, for the appellants.
N. C. Chatterjee and P. K. Chatterjee, for the respondent.
April 15.
The Judgment of the Court was delivered by section K. DAS, J.
This appeal relates to a trust known as the Srimati Charusila Trust and the properties appertaining thereto.
By its judgment and order dated October 5, 1953, the High Court of Patna has held that the trust in question is a private trust created for the worship of a family idol in which the public are not interested and, therefore, the provisions 604 of the Bihar Hindu Religious Trusts Act, 1950 (Bihar I of 1951), hereinafter referred to as the Act, do not apply to it.
Accordingly, it allowed an application made to it under article 226 of the Constitution and quashed the proceedings taken against the respondent herein under sections 59 and 70 of the Act.
The State of Bihar, the President of the Bihar State Board of Religious Trusts and the Superintendent of the said Board who were respondents to the petition under article 226 are the appellants before us.
The trust in question was created by a trust deed executed on March 11, 1938.
Srimati Charusila Dasi is the widow of one Akshaya Kumar Ghose of No. 3, Jorabagan Street in Calcutta.
She resided at the relevant time in a house known as Charu Niwas at Deoghar in the district of Santhal Parganas in the State of Bihar.
In the trust deed she described herself as the settlor who was entitled to and in possession of certain properties described in schedules B, C and D. Schedule B property consisted of three bights and odd of land situate in mohalla Karanibad of Deoghar town together with buildings and structures thereon schedule C property was Charu Niwas, also situate in Karanibad of Deoghar; and schedule D properties consisted of several houses and some land in Calcutta the aggregate value of which was in the neighborhood of Rs. 8,50,000.
In a subsequent letter to the Superintendent, Bihar State Board of Religious Trusts, it was stated on behalf of Srimati Charusila Dasi that the total annual income from all the properties was about Rs. 87,839.
In the trust deed it was recited that the settlor had installed a deity named Iswar Srigopal in her house and had since been regularly worshipping and performing the " puja " of the said deity; that she had been erecting and constructing a twin temple (jugal mandir) and a Nat Mandir (entrance hall) to be named in memory of her deceased son Dwijendra Nath on the plot of land described in schedule B and was further desirous of installing in one of the two temples the deity Srigopal and such other deity or deities as she might wish to establish during her lifetime and also of installing in 605 the other temple a marble image of Sri Sri Balanand Brahmachari, who was her religious preceptor and who was regarded by his disciples as a divine person.
It was further recited in the trust deed that the settlor was also desirous of establishing and founding a hospital at Karanibad for Hindu females to be called Akshaya Kumar Female Hospital in memory of her deceased husband.
By the trust deed the settler transferred to the trustees the properties described in schedules B, C and D and the trustees were five in number including Srimati Charusila Dasi and her deceased husband 's adopted son Debi Prasanna Ghosh; the other three trustees were Amarendra Kumar Bose, Tara Shanker Chatterjee and Surendra Nath Burman, but they.
were not members of the family of the settlers Amarendra Kumar Bose resigned from the office of trusteeship and was later replaced by Dr. Shailendra Nath Dutt.
The trusts imposed under the trust deed were (1) to complete the construction of the two temples and the Nat Mandir at a cost not exceeding three lakhs to be met out of the trust estate and donations, if any ; (2) after the completion of the two temples, to instal or cause to be installed the deity Iswar Srigopal in one of the temples and the marble image of Sri Balanand Brahmachari in the other and to hold a consecration ceremony and a festival in connection therewith ; (3) after the installation ceremonies and festivals mentioned above, to provide for the payment and expenditure of the daily " sheba puja " and periodical festivals each year of the deity Srigopal and such other deities as might be installed at an amount not exceeding the sum of Rs. 13,600 per annum and also to provide for the daily " sheba " of the marble image of Sri Balanand Brahmachari and to celebrate each year in his memory festivals on the occasion of (a) the " Janma tithi " (the anniversary of the installation of the marble image); (b) " Gurupurnima " (full moon in the Bengali month of Ashar) ; and (c) " Tirodhan " (anniversary of the day on which Sri Balanand Brahmachari gave up his body) at a cost not exceeding Rs. 4,500 per annum ; and (4) to establish or cause to be established and run and 606 manage in Deoghar a hospital for Hindu females only to be called Akshaya Kumar Female Hospital and an attached outdoor charitable dispensary for all out patients of any religion or creed whatsoever and pay out of the income for the hospital and the outdoor dispensary an annual sum of Rs. 12,000 or such other sum as might be available and sufficient after meeting the charges and expenditure of the two temples and after paying the allowance of the " shebait " and trustees and members of the temple committee.
It was further stated that the work of the establishment of the 'hospital and the out door charitable dispensary should not be taken in hand until the construction of the temples and the installation of the deities mentioned above.
It may be here stated that it is the case of both parties before us that the temples and the Nat Mandir have been constructed and the deity and the marble image installed therein; but neither the hospital nor the charitable dispensary has yet been constructed.
The powers, functions and duties of the trustees were also mentioned in the deed and, in schedule A, detailed rules were laid down for the holding of annual general meetings, special meetings, and ordinary meetings of the trustees.
To these details we shall advert later.
On October 27, 1952, the Superintendent, Bihar State Board of Religious Trusts, Patna, sent a notice to Srimati Charusila Dasi under section 59 of the Act asking her to furnish a return in respect of the trust in question.
Srimati Charusila Dasi said in reply that the trust in question was a private endowment created for the worship of a family idol in which the public were not interested and therefore the Act did not apply to it.
On January 5, 1953, the Superintendent wrote again to Srimati Charusila Dasi informing her that the Board did not consider that the trust was a private trust and so the Act applied to it.
There was further correspondence between the solicitor of Srimati Charusila Dasi and the President of the Bihar State Board of Religious Trusts.
The correspondence did not, however, carry the matter any further and on February 5, 1953, the President of the State Board of 607 Religious Trusts said in a notice that he had been authorised to assess a fee under section 70 of the Act in respect of the trust.
Ultimately, on April 6,1953, Srimati Gharusila Dasi made an application to the High Court under article 226 of the Constitution in which she prayed that a writ or order be issued quashing the proceedings taken against her by the Bihar State Board of Religious Trusts on the grounds (a) that the trust in question was a private trust to which the Act did not apply and (b) that the Act was ultra vires the Constitution by reason of the circumstance that its several provisions interfered with her rights as a citizen guaranteed under article 19 of the Constitution.
This application was contested by the State of Bihar and the Bihar State Board of Religious Trusts, though no affidavit was filed by either of them.
On a construction of the trust deed the High Court came to the conclusion that the trust in question was wholly of a private character created for the worship of a family idol in which the public were not interested and in that view of the matter held that the Act and its provisions did not apply to it.
Accordingly, the High Court allowed the application and issued a writ in the nature of a writ of certiorari quashing the proceedings under sections 59 and 70 of the Act and a writ in the nature of a writ of prohibition restraining the Bihar State Board of Religious Trusts from taking further proceedings against Srimati Charusila Dasi in respect of the trust in question.
The appellants then applied for and obtained a certificate from the High Court that the case fulfilled the requirements of article 133 of the Constitution.
The present appeal has been filed in pursuance of that certificate.
In connected Civil Appeals numbered 225, 226, 228, 229 and 248 of 1955 (1) judgment has been pronounced to day, and we have given therein a conspectus of the provisions of the Act and have further dealt with the question of the constitutional validity of those provisions in the context of fundamental rights guaranteed by Part III of the Constitution.
We have held therein that the provisions of the Act do not take away or (1) Mahant Moti Das vs section P. Saki, see P. 563, ante, 608 abridge any of the rights conferred by that Part.
In Civil Appeal No. 343 of 1955 (1) in which also judgment has been pronounced today, we have considered the definition clause in section 2(1) of the Act and come to the conclusion that the Act does not apply to private endowments, and have further explained therein the essential distinction in Hindu law between private and public religious trusts.
We do not wish to repeat what we have said in those two decisions; but in the light of the observations made therein, the two questions which fall for decision in this appeal are (I) if on a true construction of the trust deed dated March 11, 1938, the Charusila Trust is a private endowment created for the worship of a family idol in which the public are not interested, as found by the High Court and (2) if the answer to the first question is in the negative, does the Act apply by reason of section 3 thereof to trust properties which are situate outside the State of Bihar.
We now proceed to consider and decide these two questions in the order in which we have stated them.
On behalf of the appellants it has been contended that on a true construction of the deed of trust, the Charusila Trust must be held to be a public religious trust.
The learned Judges of the High Court emphasised that part of the preamble wherein it was stated that the settler had installed a deity called Iswar Srigopal in her house and had been regularly worshiping the said deity, which circumstance (according to them) showed that in its, origin the endowment was a private endowment created for the worship of a family idol in which the public were not interested, and the learned Judges were further of the view that the installation of the said deity in one of the two temples and of the marble image of Sri Balanand Brahmachari in the other temple did not, alter the nature of the endowment which continued to be a expressed the opinion that deed for the establishment of a females and a charitable dispensary for patients of any main objects of the endowment.
These findings of the private endowment; they also the provision in the trust hospital for Hindu religion or creed was merely incidental to the other (1) Mahant Ram saroop Dasji vs section e.
sahi, see 609 High Court have been seriously and strenuously challenged before us.
We say this with respect, but we consider that the learned Judges of the High Court have failed to give to several material clauses of the trust deed their due weight and these have an important bearing on the question in issue.
It is true that the settler said that she had installed the deity Iswar Srigopal in her house and she had been regularly worshipping the deity since such installation; if the trust had been created only for the purpose of continuing such family worship, the conclusion would no doubt be that the endowment was wholly of a private character in which the public had no interest.
That was not, however, what was done.
The settlor created the trust for the construction of two temples, in 'one of which was to be installed the deity Iswar Srigopal and in the other the marble image of her preceptor; the trustees consisted of persons three of whom were strangers to the family, though the settlor reserved to herself the power to remove in her absolute discretion any one or more of the trustees for misconduct by reason of change of religion, etc.
One of the relevant considerations is if by the trust deed any right of worship has been given to the public or any section of the public answering a particular description.
One of the clauses of the trust deed reads : " The ' pronamis ' and perquisites to be offered to the deities and image in the Jugal Mandir shall form part of the Srimati Charusila Trust Estate and neither the shebait nor any one else shall have interest or claim in or over same." This clause to which the learned Judges of the High Court have made no reference shows that the right of worship was not confined to the family of the settlor or founder, but was given to other members of the Hindu public who could offer " pronamis " and perquisites to the deities, and those I pronamis ' and perquisites were to form part of the trust estate.
Schedule E of the deed gives details of the festivals and ceremonials to be performed for the deity and the image of Sri Balanand Brahmachari.
One of the cere monials is a Jal Chhatra " (free distribution of 77 610 water); another is annakoot " (distribution of food) at the time of Diwali, the approximate expenditure being fixed at Rs. 500.
A third ceremony is a "bhandara ", culminating in free distribution of food, of the Mataji of Sri Balanand Brahmachari.
These are ceremonies which even if ancillary to "deva sheba", appear prima facie to confer benefit on the general body of worshippers.
Though not conclusive by them selves, they have to be considered in the light of the other main provisions of the trust deed.
The other festivals which have to be performed as a rule for the deity are such well known festivals as Rath Yatra, Jhulan, Janmastami, Rash and Dol (Holi) in which members of the Hindu community usually take part in large numbers, and the scale of expenses laid down shows that the festivals are to be performed on a large scale so as to enable a large number of persons to take part in them.
Even with regard to the special festivals for Sri Balanand Brahmachari on the occasion of the Janmatithi, Gurupurnima and Tirodhan, the provisions of the trust deed contemplate that they are to be performed on a large scale so that other disciples of Sri Balananda Brahmachari may also join in them.
Even the constitution of the committee of trustees is such as would show that the endowment is not a mere private endowment.
The trust deed says " In filling up a vacancy the trustees shall see that in the Board of Trustees there shall be, if available, one who is the seniormost lineal male descendant of Akshaya Kumar Ghose, the deceased husband of the settlor, who is eligible and willing and capable of acting as a trustee, another who is a trustee of the Sree Sree Balanand Trust created at Deoghar by the said Sree Balanandji Brahmachari Maharaj of sacred memory, and a third who shall be disciple of Sree Sree Balanand order, that is to say, any one of the disciples of the said Sree Sree Balanand Brahmachari Maharaj of sacred memory and his disciples and the disciples of the latter and so on if such a disciple is willing, eligible and capable of acting as a trustee of the said Trust hereby created, provided always that the full number of trustees shall at all times be five in number and no one 611 shall be eligible to be a trustee unless he be adult male, pious, Bengali Hindu and provided also that the shebait of Sree Gopal and the shebait of Sree Baleshwari Devi of the Ashram Deoghar shall under no circumstances be eligible to be a trustee tinder these presents save and except in the case of the settlor who shall so long as she lives to both a trustee and a shebait.
" We may here draw attention to the formation of the temple committee as envisaged by the trust deed.
It says that the temple committee 'shall consist of the Jugal Mandir shebait for the time being who shall be the ex officio member and president of the committee and the other members who will be appointed or nominated by the trustees shall consist of six pious Hindus who must be residents of Deoghar and of whom at least four shall be Bengalis.
If the trust were created for the worship of a family idol, one would not expect provisions of this nature which vest the management of the temple and the " sheba puja " in members of the public outside the family of the settlor.
Besides the aforesaid provisions, there is in express terms the imposition of a trust in favour of the public so far as the hospital and the charitable dispensary are concerned.
It is necessary to quote here el. 8 of the trust deed.
That clause reads: " To establish or cause to be established and run and manage in Deoghar a hospital for Hindu females only to be called in memory of the husband of the settlor, since deceased, the " Akshaya Kumar Female Hospital " and an attached out door Charitable Dispensary for all out patients of any religion or creed whatsoever and out of the said income to pay and/or spend for the objects of the said Hospital and out door Dispensary annually a sum of rupees twelve thousand or such sum as will be available and sufficient after meeting the aforesaid charges and expenditure and after paying the allowance of the shebait and trustees and members of the temple committee and the establishment charges of offices at Calcutta and Deoghar and of the temple establishment hereinafter mentioned provided however that the work of the establishment 612 of the Hospital and out door Charitable Dispensary shall not be taken in hand by the trustees until the construction of the temple and installation of the deities hereinbefore mentioned." The trust deed further states that the female hospital and charitable dispensary shall, so long as the settlor is alive, be located in a house to be rented in Deoghar and after her death shall be shifted to and located in Charu Niwas.
Charu Niwas was, however, sold by an order of the Calcutta High Court and the sale proceeds, it is stated, were appropriated towards the satisfaction of the debts and liabilities of the trust estate.
One clause of the trust deed relating to the hospital and the charitable dispensary says: " The object of the said Hospital shall be to provide Hindu females with gratuitous medical and surgical and maternity advice and aid and also to admit them as indoor patients in conformity with such rules and regulation as may be made by or with the sanction of the Board of Trustees.
The outdoor Charitable Hospital shall be run as the trustees shall provide by rules.
In furtherance of these objects, its funds may be expended in subscriptions or contributions to convalescent and other similar institutions and to other special hospitals and in sending patients to and maintaining them in such institution and hospitals provided that the sum so expended in any one year shall not exceed rupees one thousand or such sum as may be fixed by the trustees from time to time.
" The learned Judges of the High Court have expressed the view that these provisions for the establishment of a hospital and charitable dispensary are merely incidental or ancillary to the other main objects of the trust.
With great respect, we are unable to appreciate how the establishment of a hospital and charitable dispensary of the nature indicated in the trust deed can be said to be ancillary or incidental to other objects of the trust, viz., the construction of two temples and the installation of the deities therein.
In clear and unequivocal terms the trust deed imposes a distinct and independent trust in favour of a considerable section of the public for whose benefit the hospital 613 and the charitable dispensary are to be established.
It is true that the establishment of the hospital and the charitable dispensary is to be taken in hand after the construction of the temples and the installation of the deities; that circumstance, however, does not make the trust in relation to the hospital and the dispensary any the less important or even merely incidental or ancillary to the other trusts.
It merely determines the priority of time when the different trusts created by the deed are to be given effect to.
The High Court has placed reliance on the decision in Prasaddas Pal vs Jagannath Pal (1).
That was a case in which by the deed of endowment were dedicated certain houses and premises to the " sheba of a family idol established in one of the said houses and for feeding the poor and carrying out other charitable objects; the deity was installed inside one of the residential quarters, the " shebaitship " was confined to the members of the family of the founder, and the feeding of the poor and of students, in case the income of the debutter property increased, was found to be part and parcel of the "debasheba ", and in those circumstances it was held that the feeding of the poor etc.
was not an independent charity but incidental to the main purpose of the endowment, viz., the " puja " of the deity.
We are unable to hold that the same considerations apply to the trust before us.
In Deoki Nandan vs Murlidhar (2) this Court considered the principles of law applicable to a determination of the question whether an endowment is public or private, and observed: " The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof.
In accordance with this theory, it has been held that when property is dedicated for the worship of a familyidol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals.
But (1) Cal.538.
(2) ; , 762.
614 where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.
" One of the facts which was held in that case to indicate that the endowment was public was that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site.
We do not suggest that such a fact is by itself decisive of the question.
The fact that the temple is outside the dwelling house is only a circumstance in favour of it being regarded a public temple, particularly in Madras (except Malabar); there are, however, private temples in Bengal which are built outside the residential houses of donors (see the Hindu Law of Religious and Charitable Trust, Tagore Law Lectures by the late Dr. B. K. Mukherjea, 1952 edition, p. 188).
In the case before us, the two temples were constructed outside the residential quarters, but that is only one of the relevant circumstances.
We must construe the deed of trust with reference to all its clauses and so construed, we have no doubt that the trusts imposed constitute a public endowment.
There is one other point to be noticed in this connexion.
The deed of trust in the presept case is in the English form and the settlor has transferred the properties to trustees who are to hold them for certain specific purposes of religion and charity; that in our opinion is not decisive but is nevertheless a significant departure from the mode a private religious endowment is commonly made.
It is necessary now to refer to a decision of the Calcutta High Court, In re Charusila Dasi (1) relating to this very trust.
The question for consideration in that case was the assessment of income tax on the income of this trust estate for the accounting year 193839.
The trustees were assessed upon the whole income of the trust. 'The trustees appealed against the assessment and contended that the entire trust was for public, religious and charitable purposes and the whole income (1) I.L.R. 615 fell within cl.
(1) of sub section
3 of section 4 of the Income tax Act.
The contention of the Commissioner of Income tax was that the trust was no more than a private religious trust and the income did not enure for the public benefit, save with respect to that part of the income which was to be devoted to the hospital and dispensary and to which the latter part of cl.
(1) applied.
A reference was accordingly made to the High Court and the question framed was whether on a proper construction of the deed of trust, so much of the income of the trust as was not applied for the purpose of constructing and maintaining the female hospital was exempt from tax under the provisions of section 4(3) of the Indian Income tax Act.
It was pointed out before the High Court that no part of the income of the trust during the accounting year was devoted to the hospital and dispensary and it was conceded that part of the income which would be devoted to those institutions would fall within the exempting clause.
It so happens that the learned counsel who argued the case on behalf of the trustees in the Calcutta High Court in the income tax reference is the same counsel who has argued the case before us on behalf of Srimati Charusila Dasi.
The contention now is that the trust in its entirety is a private religious trust.
Eleven circumstances were referred to by learned counsel in the income tax reference in support of his contention that the entire trust as ascertained from the trust deed was of a public nature.
Gentle, J., with whom Ormond, J., agreed, held that on a proper construction of the deed of trust, so much of the income of the trust as was not applied for the purpose of constructing an maintaining the female hospital was not exempt from tax under the provisions of section 4(3) of the Indian Income tax Act.
This decision, it must be stated at once, does not wholly support the present respondent.
So far as the hospital and the dispensary are concerned the trust was held to be a public trust.
We are of the view that having regard to the main clauses of the trust deed to which we have already made a reference, the trusts in favour of the deity Iswar Srigopal and the image of Sri Balanand Brahmachari are also of a public nature.
816 One of the points which was emphasised before the Calcutta High Court was the provision with regard to pronamis " and perquisites to be offered to the deity and the image.
The High Court said: " This provision does not indicate the creation of a trust in favour of the public, but, on the contrary, it denies the right of any one, which must include any member of the public.
having a right to the pronamis.
In its terms, the deed negatives that benefit is conferred upon the public ".
The aforesaid observations appear to us, with respect, to be based on a misconception.
When a member of the public makes an offering to a deity, he does not retain any right to what he has offered.
What he offers belongs to the deity.
When we talk of the right of members of the public or a considerable section thereof, we refer to the right of worship or the right to make offerings in worship of the deity and not of the right to the offerings after they have been made.
With regard to other clauses of the trust deed also we take a view different from that of the learned Judges 'who decided the income tax reference.
We have already explained our view in the preceding paragraphs and it is unnecessary to reiterate it.
The conclusions at which we have arrived on a construction of the deed of trust is that it creates a religious and charitable trust of a public nature.
Now, we proceed to a consideration of the second point.
Section 3 of the Act says " This Act shall apply to all religious trusts, whether created before or after the commencement of this Act, any part of the property of which is situated in the State of Bihar ".
The argument before us on behalf of the respondent is this.
Under article 245 of the Constitution, Parliament may make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State.
Clause (2) of the said Article further states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation.
Article 246 gives the distribution of legislative power; 617 Parliament has exclusive power to make laws with respect to any of the matters enumerated in what has been called the Union List; Parliament as also the legislature of a State have power to make laws with respect to any of the matters enumerated in the Concurrent List; the legislature of a State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in the State List.
Item 28 of the Concurrent List is,, charities and charitable institutions, charitable and religious endowments and religious institutions ".
Learned counsel for the respondent contends that by reason of the provisions in articles 245 and 246 of the Constitution read with item 28 of the Concurrent List, the Bihar legislature which passed the Act had no power to make a law which has operation outside the State of Bihar; he further contends that under section 3 the Act is made applicable to all religious trusts, whether created before or after the commencement of the Act, any part of the property of which is situated in the State of Bihar; therefore, the Act will apply to a religious institution which is outside Bihar even though a small part of its property may lie in that State.
It is contended that such a provision is ultra vires the power of the Bihar Legislature, and Parliament alone can make a law which will apply to religious institutions having properties in different States.
Alternatively, it is contended that even if the Act applies to a religious institution in Bihar a small part of the property of which is in Bihar, the provisions of the Act can have no application to such property of the institution as is outside Bihar, such as the Calcutta properties in the present case.
It is necessary first to determine the extent of the application of the Act with reference to sections 1 (2) and 3 of the Act read with the preamble.
The preamble states: " Whereas it is expedient to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts 78 618 It is clear from the preamble that the Act is intended to provide for the better administration of Hindu religious trusts in the State of Bihar.
Section 1 (2) states that the Act extends to the whole of the State of Bihar, and section 3 we have quoted earlier.
If these two provisions are read in the context of the preamble, they can only mean that the Act applies in cases in which (a) the religious trust or institution is in Bihar and (b) any part of the property of which institution is situated in the State of Bihar.
In other words, the aforesaid two conditions must be fulfilled for the application of the Act.
It is now well settled that there is a general presumption that the legislature does not intend to exceed its jurisdiction, and it is a sound principle of construction that the Act of a sovereign legislature should, if possible, receive such an interpretation as will make it operative and not in operative; see the cases referred to In re the Hindu Women 's Right to Property Act, 1937 and The Hindu Women 's Rights to Property (Amendment) Act, 1936 and In re a Special Reference under section 213 of The Government of India Act, 1935 (1), and the decision of this Court in R. M. D. Chamarbaugwalla vs The Union of India (2).
We accordingly hold that section 3 makes the Act applicable to all public religious trusts, that is to say, all public religious and charitable institutions within the meaning of the definition clause in section 2 (1) of the Act, which are situate in the State of Bihar and any part of the property of which is in that State.
In other words, both conditions must be fulfilled before the Act can apply.
If this be the true meaning of section 3 of the Act, we do not think that any of the provisions of the Act have extra territorial application or are beyond the competence and power of the Bihar Legislature.
Undoubtedly, the Bihar Legislature has power to legislate in respect of, to use the phraseology of item 28 of the Concurrent List, " charities, charitable institutions, charitable and religious endowments and religious institutions " situate in the State of Bihar.
The question, therefore, narrows down to, this: in so legislating,, has it power to affect trust (1) , 27 30.
(2) 619 property which may be outside Bihar but which appertains to the trust situate in Bihar ? In our opinion, the answer to the question must be in the affirmative.
It is to be remembered that with regard, to an interest under a trust the beneficiaries ' only right is to have the trust duly administered according to its terms and this right can normally be enforced only at the place where the trust or religious institution is situate or at the trustees ' place of residence: see Dicey 's Conflict of Laws, 7th edition, p. 506.
The Act purports to do nothing more.
Its aim.
, as recited in the preamble, is to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection of properties appertaining thereto.
This aim is sought to be achieved by exercising control over the trustees in personam.
The trust being situate in Bihar the State has legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer, the trust.
Therefore, there is really no question of the Act having extraterrestrial operation.
In any case, the circumstance that the temples where the deities are installed are situate in Bihar, that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu public in Bihar gives enough territorial connection to enable the legislature of Bihar to make a law with respect to such a trust.
This Court has applied the doctrine of territorial connection or nexus to income tax legislation, sales tax legislation and also to legislation imposing a tax on gambling.
In Tata Iron & Steel Co. Ltd. vs State of Bihar (1) the earlier cases were reviewed and it was pointed out that sufficiency of the territorial connection involved a consideration of two elements, namely, (a) the connection must be real and not illusory and (b) the liability sought to be imposed must be pertinent to that connection.
It cannot be disputed that if the religious endowment is itself situate& in Bihar and the trustees function there, the connection between the religious institution and the property appertaining thereto is real and not illusory ; indeed, the religious institution (I) ; 620 and the property appertaining thereto form one integrated whole and one cannot be dissociated from the other.
If, therefore, any liability is imposed on the trustees, such liability must affect the trust property It is true that in the Tata Iron & Steel Co. 's case this Court observed : " It is not necessary for us on this occasion to lay down any broad proposition as to whether the theory of nexus, as a principle of legislation is applicable to all kinds of legislation.
It will be enough for disposing of the point now under consideration, to say that this Court has found no apparent reason to confine its application to income tax legislation but has extended it to sales tax and to tax on gambling.
" We do not see any reason why the principles which were followed in The State of Bombay vs R. M. D. Chamarbaugwala (2) should not be followed in the present case.
In R. M. D. Chamarbaugwala 's case (2) it was found that the respondent who was the organiser of a prize competition was outside the State of Bombay; the paper through which the prize competition was conducted was printed and published outside the State of Bombay, but it had a wide circulation in the State of Bombay and it was found that " all the activities which the gambler is ordinarily expected to undertake" took place mostly, if not entirely, in the State of Bombay.
These circumstances, it was held, constituted a sufficient territorial nexus which entitled the State of Bombay to impose a tax on the gambling that took place within its boundaries and the law could not be struck down on the ground of extra territoriality.
We are of the opinion that the same principles apply in the present case and the religious endowment itself being in Bihar and the trustees functioning there, the Act applies and the provisions of the Act cannot be struck down on the ground of extra territoriality.
We proceed now to consider some of the decisions on which learned counsel for the respondent has placed reliance.
These are (1) Sirdar Gurdyal Singh vs The Rajah of Faridkote (3) ; (2) Commissioner of Wakfs, Bengal (1) ; (2)[1957] S.C.R. 874.
(3) (1894) 21 I.A. 17r, 185.
621 V. Narasingh Chandra Daw and Co. (1); (3) Madangopal Bagla vs Lachmidas (2); and (4) Maharaj Kishore Khanna vs Raja Ram Singh (3 ).
Those decisions, in our opinion, are not in point, as they related to different problems altogether.
In Sirdar Gurdyal Singh 's case (4) a Faridkote court passed an ex parte money decree against a defendant who had been a treasurer of Faridkode, but who at the time of suit had ceased to be such and was resident in Jhind of which State he was a domiciled subject; it was held that the decree was a nullity by international law.
The ratio of the decision was thus expressed by Lord Selborne: "Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. . .
In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in absentem by a foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by international law an absolute nullity.
" The decision in Commissioner of Wakfs, Bengal vs Narasingh Chandra Daw & Co. (1) proceeded on a construction of section 70 of the Bengal Wakf Act which also had a section similar to section 3 of the Act.
Section 70 of the Bengal Wakf Act required notice to the Commissioner of Wakfs before any wakf property could be sold and the question was whether a court in Assam was under any obligation to send such a notice.
It was held that the Bengal Act did not apply to Assam and section 70 stood in a different category from the other sections of the Bengal Act.
The ratio of the decision was thus explained : " So far as the status of the Commissioner is concerned, it is conferred by the Bengal Act to operate even outside the province.
Therefore, the Commissioner may bring suits under section 72 or section 73 of the Bengal Act in courts outside the province.
But section 70 lies (1) I.L.R. (3) A.I.R. 1954 Pat. 164.
(2) I.L.R. (4) (1894) 21 I.A. 171, 185.
622 in a different category, because it imposes an obligation on the court to issue notice to the Commissioner in certain circumstances. .
Section 70(1) refers to a suit or proceeding in respect of any wakf property, etc., and if this wakf property is situated outside the province, so that the court having jurisdiction over it is also outside the province, then the Act cannot operate beyond its extent, that is to say outside the province of Bengal.
" The decision in Madangopal Bagla vs Lachmidas and the decision in Maharaj Kishore Khanna vs Raja Ram Singh (1) both related to the interpretation of some of the provisions of the United Provinces Encumbered Estates Act (U. P. Act 25 of 1934).
In the former case the limited question for decision was if the decreeholder under a decree of the Original side of the Calcutta High Court was precluded from executing the decree by reason of certain proceedings which had taken place before the Special Judge, Banaras, under the United Provinces Encumbered Estates Act, 1934.
The answer given was that the decreeholder was not so precluded and the decision proceeded on a construction of section 18 of the United Provinces Encumbered Estates Act, 1934, read with sections 7, 13 and 14(7) of that Act.
It was held that the exclusive jurisdiction intended to be conferred on the Special Judge in supersession of those of civil and revenue courts extended,, as indicated by section 7, only over debts enforceable through the courts within the province and the word " creditor " in section 10 must be limited to those of them who would have to enforce their rights through such courts alone.
In the Patna case the question for decision was if section 14(7) of the U. P. Encumbered Estates Act, 1934, should be construed to mean that the decree of a Special Judge is to be deemed to be the decree of a civil court of competent jurisdiction even beyond the territorial jurisdiction of the State Legislature.
It was held that the decree passed by the Special Judge of Banaras had not the effect of a decree of a civil court outside the territorial limits of the United Provinces and the Sub (1) I.L.R. (2) A.I.R. 1954 Pat. 164.
623 ordinate Judge of Purnea in Bihar had no jurisdiction to execute such a decree or to direct that the properties of a judgment debtor in Purnea should be attach, ed in execution of the decree.
As we have said earlier, these decisions relate to an altogether different problem, namely, the proper construction of certain sections of the Bengal Wakf Act or of the United Provinces Encumbered Estates Act.
The problem before us is of a more general nature and the aforesaid decisions are no authorities for the solution of that problem.
There is a decision of this Court to which our attention has been drawn (Petition No. 234 of 1953 decided on March 18, 1953).
A similar problem arose in that case where the head of a math situate in Banaras made an application under article 32 of the Constitution for a writ in the nature of mandamus against the State of Bombay and the Charity Commissioner of that State directing them to forbear from enforcing against the petitioner the provisions of the Bombay Public Trusts Act, 1950, on the ground inter alia that the Bombay Act could have no application to the math situate in Banaras or to any of the properties or places of worship appurtenant to that math.
In the course of the hearing of the petition the learned Attorney General who appeared for the State of Bom bay made it clear that there was no intention on the part of the Government of Bombay or the Charity Commissioner to apply the provisions of the Bombay Act to any math or religious institution situated outside the State territory.
The learned Attorney General submitted that the Bombay Act could be made applicable, if at all, to any place of religious instruction or worship which is appurtenant to the math and is actually within the State territory.
In view of these submissions no decision was given on the point urged.
The case cannot, therefore, be taken as a final decision of the question in issue before us.
For the reasons which we have already given the Act applies to the Charusila Trust which is in Bihar and its provisions cannot be struck down on the ground of extra territoriality.
624 The result is that the appeal succeeds and is allowed with costs, the judgment and order of the High Court dated October 5, 1953, are set aside and the petition of Srimati Charusila Dasi must stand dismissed with costs.
Appeal allowed.

summary:
A deed of trust was executed by the respondent on March II, 1938, when she was residing at D in the State of Bihar, in respect of the properties described in the Schedules referred to in the deed, some of which were situate outside the State of Bihar.
In the trust deed she described herself as the settlor, and it was recited therein that the settlor had installed a deity named Iswar Srigopal in her house and had since been regularly worshiping and performing the puja of the said deity; and that she had been erecting a Nat Mandir to be named in memory of her deceased son.
The recitals also showed that the settlor had provided for the construction of two temples (jugal Mandir), in one of which was to be installed the deity Srigopal and other deities, and in the other the marble image of, her preceptor and that the temple, committee shall consist of the, Jugal.
Mandir shebait for the time being and six pious Hindus who must be residents.
of D and of whom at least four shall be Begalis.
One 76 602 of the clauses of the trust deed recited : "The ' pronamis ' and perquisites to be offered to the deities and image in the jugal Mandir shall form part of the Srimati Charusila Trust Estate and neither the shebait nor any one else shall have interest or claim in or over same.
,, The provisions of the trust deed in regard to the ceremonials relating to free distribution of food and water and the festivals to be performed for the deity and the image, which were well known festivals in which members of the Hindu Community usually take part, contemplated that they were to be done on a large scale so as to enable a large number of persons to take part in them.
There was also a provision in the trust deed for the establishment of a hospital for Hindu females and a charitable dispensary for patients of any religion or creed.
After the coming into force of the Bihar Hindu Religious Trusts Act, 1950, the President of Bihar State Board of Religious Trusts started proceedings under sections 59 and 70 Of the Act against the respondent in respect of the trust on the footing that it was a public trust to which the Act applied.
The respondent made an application to the Patna High Court under article 226 of the Constitution in which she prayed that a writ or order be issued quashing the proceedings taken against her by the Bihar State Board of Religious Trusts on the grounds (I) that the trust deed dated March II, 1938, was a private endowment created for the worship of a family idol in which the public were not interested, (2) that the Act did not apply to private trusts, (3) that the Act was ultra vires the Constitution by reason of the circumstance that its several provisions interfered with her rights as a citizen guaranteed under Part III of the Constitution, and (4) that, in any case, the Act was not applicable to the trust deed in question as some of the properties were situate outside the State of Bihar.
Held (1) that on its true construction the deed of trust dated March 11, 1938, created a religious and charitable trust of a public nature.
Deoki Nandan vs Murlidar, ; , considered.
In re Charusila Dasi, I.L.R. [1946] I Cal. 473, explained.
One of the relevant considerations as to whether the trust was a public trust, will be if by the trust deed any right of worship has been given to the public or any, section of the public answering a particular description.
(2) that the Act does not apply to private endowments.
Mahant Ram Saroop Dasji vs section P. Sahi, [1959] SUPP.
2 S.C.R. 583, followed.
(3) that the provisions of the Act do not take away or abridge any of the rights conferred by Part III of the Constitution.
Mahant Moti Das vs section P. Sahi, [1959] Supp. 2 S.C.R. 563, followed.
603 (4) that section 3 of the Act makes the Act applicable to all public religious and charitable institutions within, the meaning of the definition clause in section 2(1) Of the Act, which are situate in the State of Bihar and any part of the property of which is in that State.
(5) that where the trust is situate in Bihar the State has legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer the trust, and as the object of the Act is to provide for the better administration of Hindu Religious Trusts in the State of Bihar and for the protection of properties appertaining thereto, in respect of the property belonging to the trust outside the State the aim is sought to be achieved by exercising control over the trustees in Personam, and there is really no question of the Act having extra territorial operation.
(6) that, in the present case, the circumstance that the temples where the deities were installed are situate in Bihar and that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu Public in Bihar, gives enough territorial connection to enable the legislature of Bihar to make a law with respect to such.
trust.
Tata Iron & Steel Co. Ltd. vs State of Bihar, [1958] S.C.R. 1355 and The State of Bombay vs R.M.D. Chamaybaugwala, (1957] S.C.R. 874, relied on.
Saydar Gurdyal Singh vs The Rajah of Faridkote, (1894) L.R. 21 I.A. I71, distinguished.


judgement:
N: Criminal Appeal No. 13 of 1951.
Appeal by special leave from the judgment and order of the High Court of Madras (Rajamannar C.J. and Balakrishna Ayyar J.) dated 10 th April, 1950, in Contempt Application No. 10 of 1949.
426 S.P. Sinha (S.S. Prakasam, with him), for the appellant.
R. Ganapathy Iyer, for the respondent.
February 14.
The Judgment of the Court was delivered by MUKHERJEA J.
This appeal has come up before us on special leave granted by this court on May 23, 1950, and it is directed against a judgment of a Division Bench of the Madras High Court dated April 10, 1950, by which the learned Judges found the appellant guilty of contempt of court and sentenced him to serve simple imprisonment for three months.
The appellant is the publisher and managing editor of a Telugu Weekly known as "Praja Rajyam" which is edited and published at Nellore in the State of Madras.
In the issue of the said paper dated 10th February, 1949, an article appeared under the caption "Is the Sub Magistrate, Kovvur, corrupt?" The purport of the article was that Surya Narayan Murthi, the stationary Sub Magistrate of Kovvur, was known to the people of the locality to be a bribe taker and to be in the habit of harassing litigants in various ways.
He was said to have a broker, through whom negotiations in connec tion with these corrupt practices were carried on.
Several specific instances were cited of cases tried by that offi cer, where it was rumoured that he had either taken bribes or had put the parties to undue harassment, because they were obdurate enough to refuse the demands of his broker.
The article, which is a short one, concludes with the fol lowing paragraph: "There are party factions in many villages in Kovvur Taluk.
Taking advantage of those parties many wealthy persons make attempt to get the opposite party punished either by giving bribes or making recommendations.
To appoint Magistrates who run after parties for a Taluk like this. . is to betray the public.
It is tantamount to failure of justice.
Will the Collector enquire into the matter and allay the public of their fears?" 427 The attention of the State Government being drawn to this article, an application was filed by the AdvocateGener al of Madras before the High Court on November 14, 1949, under section 2 of the Contempt of Courts Act (Act XII of 1926) praying that suitable action might be taken against the appellant as well as three other persons, of whom two were respectively the editor and sub editor of the paper, while the third was the owner of the Press where the paper was printed.
On receiving notice, the appellant appeared before the High Court and filed an affidavit taking sole responsibility for the article objected to and asserting that the article was published because of his anxiety to uphold the highest traditions of the judiciary in the land and to create popular confidence in courts, the duty of which was to dispense justice without fear or favour and without any discrimination of caste, creed or community.
It was said that before the article was published, numerous complaints had reached him from various quarters imputing corruption and disreputable conduct to this Magistrate and the only desire of the appellant was to draw the attention of the higher authorities to the state of public opinion in the matter and to invite an enquiry into the truth or otherwise of the allegations which were not asserted as facts but were based only on hearsay.
The High Court after hearing the parties came to the conclusion that the publication in question did amount to contempt of court, as it was calculated to lower the pres tige and dignity of courts and bring into disrepute the administration of justice.
As the appellant was not prepared to substantiate the allegations which he made and which he admitted to be based on hearsay and did not think it proper even to express any regret for what he had done, the court sentenced him to simple imprisonment for three months.
The other three respondents, through their counsel, tendered unqualified apology to the court and the learned Judges considered that no further action against them was necessary.
428 The propriety of the decision of the High Court so far as it relates to the appellant has been challenged before us in this appeal and Mr. Sinha, who appeared in support of the same, raised before us a two fold contention; his first and main contention is that as the contempt in this case was said to have been committed in respect of a court subordi nate to the High Court and the allegations made in the article in question constitute an offence under section 499 of the Indian Penal Code, the jurisdiction of the High Court to take cognizance of such a case is expressly barred under section 2 (3) of the Contempt of Courts Act.
The other contention advanced by the learned counsel relates to the merits of the case and it is urged that in publishing the article objected to, the appellant acted in perfect good faith, and as the article amounted to nothing else but a demand for enquiry into the conduct of a particular person who was believed to be guilty of corrupt practices in the discharge of his judicial duties, there was no contempt of court either intended or committed by the appellant.
So far as the first point is concerned, the determina tion of the question raised by the appellant would depend upon the proper interpretation to be put upon section 2(3) of the Contempt of Courts Act which runs as follows : "No High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subor dinate to it where such contempt is an offence punishable under the Indian Penal Code.
" According to Mr. Sinha, what the sub section means is that if the act by which a party is alleged to have commit ted contempt of a subordinate court constitutes offence of any description whatsoever punishable under the Indian Penal Code, the High Court is precluded from taking cognizance of it.
It is said that in the present case the allegations made in the article in question amount to an offence of defama tion as defined by section 499 of the Indian Penal Code and consequently the jurisdiction of the High Court is barred.
Reliance 429 is placed in support of this proposition upon the decision of the Nagpur High Court in Kisan Krishna Ji vs Nagpur Conference of Society of St. Vincent de Paul(1).
This con tention, though somewhat plausible at first sight, does not appear to us to be sound.
In our opinion, the sub section referred to above excludes the jurisdiction of High Court only.
in cases where the acts alleged to constitute contempt of a subordinate court are punishable as contempt under specific provisions of the Indian Penal Code but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code.
This would be clear from the language of the sub section which uses the words "where such contempt is an offence" and does not say "where the act alleged to consti tute such contempt is an offence".
It is argued that if such was the intention of the Legislature, it could have express ly said that the High Court 's jurisdiction will be ousted only when the contempt is punishable as such under the Indian Penal Code.
It seems to us that the reason for not using such language in the sub section may be that the expression "contempt of court" has not been used as descrip tion of any offence in the Indian Penal Code, though certain acts, which would be punishable as contempt of court in England, are made offences under it.
It may be pointed out in this connection that al though the powers of the High Courts in India established under the Letters Patent to exercise jurisdiction as Superi or Courts of Record in punishing contempt of their authority or processes have never been doubted, it was a controversial point prior to the passing of the Contempt of Courts Act, 1926, as to whether the High Court could, like the Court of King 's Bench in England, punish contempt of courts subordi nate to it in exercise of its inherent jurisdiction.
The doubt has been removed by Act XII of 1926 which expressly declares the right of the High Court to protect subordinate courts against contempt, but (1) (1943) A.I.R. 1943 Nag.
430 subject to this restriction, that cases of contempt which have already been provided for in the Indian Penal Code should not be taken cognizance of by the High Court.
This seems to be the principle underlying section 2(3)of the Contempt of Courts Act.
What these cases are need not be exhaustively determined for purposes of the present case, but some light is undoubtedly thrown upon this matter by the provision of section 480 of the Criminal Procedure Code, which empowers any civil, criminal or revenue court to punish summarily a person who is found guilty of committing any offence under sections 176, 178, 179, 180 or section 228 of the Indian Penal Code in the view or presence of the court.
We are not prepared to say, as has been said by the Patna High Court in Jnanendra prasad vs Gopal(1), that the only section of the Indian Penal Code which deals with contempt committed against a court of justice or judicial officer is section 228.
Offences under sections 175, 178, 179 and 180 may also, as section 480 of the Criminal Proce dure Code shows, amount to contempt of court if the "public servant" referred to in these sections happens to be a judicial officer in a particular case.
It is well known that the aim of the contempt proceeding is "to deter men from offering any indignities to a court of justice" and an essential feature of the proceeding is the exercise of a summary power by the court itself in regard to the delin quent.
In the cases mentioned in section 480 of the Indian Penal Code, the court has been expressly given summary powers to punish a person who is guilty of offending its dignity in the manner indicated in the section.
The court is competent also under section 482 of the Criminal Proce dure Code to forward any case of this description to a Magistrate having jurisdiction to try it, if it considers that the offender deserves a higher punishment than what can be inflicted under section 480.
Again, the court is enti tled under section 484 to discharge the offender on his submitting an apology, although it has already adjudged him to punishment under section Pat.
172. 431 or forwarded his case for trial under section 482.
The mode of purging contempt by tendering apology is a further char acteristic of a contempt proceeding.
It seems, therefore, that there are offences which are punishable as contempt under the Indian Penal Code and as subordinate courts can sufficiently vindicate their dignity under the provisions of criminal law in such cases the legislature deemed it proper to exclude them from the jurisdiction of the High Court under section 2(3) of the Contempt of Courts Act;but it would not be correct to ' say that the High Court 's juris diction is excluded even in cases where the act complained of, which is alleged to constitute contempt, is otherwise an offence under the Indian Penal Code.
This view has been taken and, in our opinion quite rightly, in a number of decisions by the Calcutta,(1) Patna,(2) Allahabad(3) and Lahore(4) High Courts.
The only authority which Mr. Sinha could cite in support of his contention is the decision of the Nagpur High Court in Kisan Krishna Ji vs Nagpur Conference of Society of St. Vincent de Paul(").
The authority is undoubtedly in his favour as it proceeds upon the assumption that the idea underlying the provision of section 2(3) of the Contempt of Courts Act is that if a person can be punished by some other tribunal, then the High Court should not entertain any proceeding for contempt.
It is to be noticed that the learned Judge, who decided this case, himself took the opposite view in the case of Subordinate Judge, First Class, Hoshangabad vs Jawaharlal(6) and definitely held that the prohibition contained in section 2(3) of the Contempt of Courts Act refers to offences punishable as contempt of court by the Indian Penal Code and not to offences punishable otherwise than as contempt.
This decision was neither noticed nor dissented from in the subsequent case, and it is quite possible that (1) Narayan Chandra vs Panehu Pramanik (A.I.R. ; Naresh Kumar.v.
Umaromar (A.I.R. 1951 Cal.
(2)Kaulashia vs Emperor (12 Pat. 1).
(3) State vs Brahma Prakash (A.I.R. 1950 All. 556); Emperor vs Jagannath (A.I.R. 1938 All. 358).
(4) Bennett Coleman vs G. section Monga (I.L.R. (5) A.I.R. 1943 Nag.
(6) A.I.R. 1940 Nag.
56 432 the attention of the learned judge was not drawn to this earlier pronouncement of his, in which case the matter would certainly have been more fully discussed.
We think further that the decision of the Calcutta High Court in V.M. Bason vs A. H. Skone(1) which was the basis of the decision of the learned Judge in the subsequent case does not really support the view taken in it.
In the Calcutta case what happened was, that a clerk of the Attorney, who appeared for the respondent decreeholder, went to serve a notice under Order 21, Rule 37(1), of the Civil Procedure Code upon the appellant judgment debtor.
The judgmentdebtor refused to take the notice and abused and assaulted the Attorney 's clerk.
Upon that, contempt proceedings were started against him and Mr. Justice C.C. Ghosh, sitting on the Original Side of the High Court of Calcutta, held the appellant guilty of contempt and fined him Rs. 200.
On appeal, this judgment was affirmed by the appellate Bench and there was a general observation made by Chief Justice Sanderson at the close of his judgment that it is not desirable to invoke the special inherent jurisdiction of the High Court by way of proceeding for contempt if ordinary proceedings in a Magistrate 's court are sufficient to meet the requirements of a case.
This was not a case under section 2(3) of the Contempt of Courts Act at all and no question either arose or was decided as to whether if an act is otherwise punishable as an offence under the Indian Penal Code the jurisdiction of the High Court under that section would be ousted.
Undoubtedly the High Court had jurisdiction in that case and whether such jurisdiction, which is certainly of a special character and is exercised summarily, should be called in to aid in the circumstances of a particular case would depend upon the discretion of the court.
This has, however, no bearing on the point that has arisen for consideration before us.
We would hold, therefore, that the right view was taken by the learned Judge of the Nagpur High Court in the earlier case and not in the later one, (1) I.L R. 433 It is next urged by Mr. Sinha that even assuming that this view is correct, the language of section 499 of the Indian Penal Code is wide enough to cover a case of contempt of court.
What is said is, that if a libel is published against a judge in respect of his judicial functions, that also is defamation within the meaning of section 499 of the Indian Penal Code and as such libel constitutes a contempt of court, it may be said with perfect propriety that libel on a judge is punishable as contempt under the Indian Penal Code.
We do not think that this contention can be accepted as sound.
A libellous reflection upon the conduct of a judge in respect of his judicial duties may certainly come under section 499 of the Indian Penal Code and it may be open to the judge to take steps against the libeller in the ordinary way for vindication of his character and personal dignity as a judge; but such libel may or may not amount to contempt of court.
As the Privy Council observed in Surendra Nath Banerjee vs The Chief Justice and Judges of the High Court,(1) "although contempt may include defamation, yet an offence of contempt is something more than mere defamation and is of a different character.
" When the act of defaming a judge is calculated to obstruct or interfere with the due course of justice or proper administration of law, it would certainly amount to contempt.
TIle offence of con tempt is really a wrong done to the public by weakening the authority and influence of courts of law which exist for their good.
As was said by Willmot, C.J.(2) "attacks upon the judges excite in the minds of the people a general dissatisfaction with all judicial determi nations. and whenever man 's allegiance to the laws is so fundamentally shaken it is the most fatal and dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the judges as private indi viduals but because they are the channels by which the King 's justice is conveyed to the people".
(1) I.L.R. at 131.
(2) Willmot 's Opinions page 256; Rex vs Davies 30 at p. 40 41. 434 What is made punishable in the Indian Penal Code is the offence of defamation as defamation and not as.
contempt of court.
If the defamation of a subordinate court amounts to contempt of court, proceedings can certainly be taken under section 2 of the Contempt of Courts Act, quite apart from the fact that other remedy may be open to the aggrieved officer under section 499 of the Indian Penal Code.
But a libel attacking the integrity of a judge may not in the circumstances of a particular case amount to a contempt at all, although it may be the subject matter of a libel pro ceeding.
This is clear from the observation of the Judicial Committee in the case of The Matter of a Special Reference from the Bahama Islands(1).
The first contention of Mr. Sinha, therefore, fails.
The second point raised by the learned counsel does not appear to us to have any real substance.
The article in question is a scurrilous attack on the integrity and honesty of a judicial officer.
Specific instances have been given where the officer is alleged to have taken bribes or behaved with impropriety to the litigants who did not satisfy his dishonest demands.
If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light.
But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute.
The appel lant, though he took sole responsibility regarding the publication of the article, was not in a position to sub stantiate by evidence any of the allegations made therein.
He admitted that the statement was based on hearsay.
Ru mours may have reached him from various sources, but before he published the article it was incumbent upon him as a reasonable man to attempt to verify the informations he received and ascertain, as far as he could.
whether the facts were true or mere concocted lies.
He does not appear to have made any endeavour in this direction.
As the appel lant did not act with reasonable care and caution, he cannot be said to have acted (1) 435 bona fide, even if good faith can be held to be a defence at all in a proceeding for contempt.
What is more, he did not express any regret for what he had done either in the High Court or before us and his behaviour does not show the least trace of contrition.
In these circumstances, we think that the appeal cannot succeed and must be dismissed.
Appeal dismissed.

dataset_name: IN-Abs

summary:
Sub sec.
(3) of section 2 of the Contempt of Courts Act, 1926, excludes the jurisdiction of the High Court to take cognisance of a contempt alleged to have been committed in respect of a Court subordinate to it only in cases where the acts alleged to constitute contempt are punishable as con tempt under specific provisions of the Indian Penal Code, but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code.
The fact that defamation of a judge of a subordinate Court constitutes an offence under sec.
499 of the Indian Penal Code does not, therefore, oust the jurisdiction of the High Court to take cognisance of the act as a contempt of court.
Defamatory statements about the conduct of a judge even in respect of his judicial duties do not necessarily consti tute contempt of Court.
It is only when the defamation is calculated to obstruct or interfere with the due course of justice or proper administration of justice that it amounts to contempt.
Kisan Krishna Ji vs Nagpur Conference of Society of St. Vincent de Paul (A.I.R. 1943 Nag.
334) disapproved.
V.M. Bason vs A.H. Skone ([.L.R. explained.
Subordi nate Judge.
First Class Hoshangabad vs Jawaharlal (A.I.R. , Narayan Chandra vs Panchu Pramanick (A. L R. , Naresh Kumar vs Umaromal (A.I.R. 1951 Cal. 489), Kaulashia vs Emperor (I.L.R. 12 Pat. 1), State vs Brahma Prakash (A.I.R. 1950 All. 556), Emperor vs Jagannath (A.I.R. 1938 All.
358), Bennet Colman vs C.S. Monga (I.L.R. approved.