JUDGMENT Derbyshire, C.J. - This is an application made on behalf of Tushar Kanti Ghosh and Tarit Kanti Biswasi who were committed to prison on the 8th of April last in respect of a contempt of this Court. Tushar Kanti Ghosh was committed to prison for a period of three months and Tarit Kanti Biswas for a period of one month. The committals were in respect of publication of a certain matter in The Amnio, Bazar Patrika on the 23rd of March, 1935. Tushar Kanti Ghosh was the Editor of The Amrita Bazar Patrika and Tarit Kanti Biswas was the Printer and Publisher of the same. The application is made or purports to be made under cl. 41 of the Letters Patent of this Court, dated 1865. That clause reads as follows:-- And we do further ordain that, from any judgment, order or sentence of the said High Court of Judicature at Fort William in Bengal, made in the exercise of Original Criminal Jurisdiction, or in any criminal cage where any point or points of law have been reserved for the opinion of the said High Court in manner hereinbefore provided, by any Court which has exercised original jurisdiction, it shall be lawful for the persons aggrieved by such judgment, order, or sentence to appeal to us, Our heirs or successors in council, provided the said High Court shall declare that the case is a fit one for such appeal and under such conditions as the said High Court may establish or require, subject always to such rules and orders as We may, with the advice of our Privy Council, hereafter make in that behalf. 2. Mr. Banerji who makes this application asks for a certificate for a declaration by us that the case is a fit one for appeal. He says that the order was made in the exercise of original criminal jurisdiction of this Court and that thereby he or his clients come within cl. 41. In my view proceedings for contempt of Court do not come within the phrase "original criminal jurisdiction of this Court." The power of this Court, which is a Court of Record, to punish for contempt is derived--as was pointed out by Sir Barnes Peacock in the case of Surendra Nath Banerjee L. R. 10 I. A. 171; s. c. I. L. R. 10 Cal. 109 (1883)--from the common law of England at the time when the Supreme Court was constituted a Court by the Charter. this Court of course succeeded to the jurisdiction exercised by the Supreme Court. It may be well to note that the case of Surendra Nath Banerjee v. The Chief Justice and Judges, of the High Court L. R. 10 I. A. 171; s. c. I. L. R. 10 Cal. 109 (1883) which is reported in I. L. R. 10 Cal. at page 109 was a case in which the writer in a newspaper was held by the Judges of this Court to have committed contempt of Court by scandalising the Court. He was committed to prison for a period of two months. He did not make any application under cl. 41 of the Charter as is done in this case. He petitioned to the Privy Council to have his case considered and during the course of that matter Sir Barnes Peacock, who delivered the opinion of the Board, said: "Their Lordships are of opinion that a contempt of the High Court by a libel such as the present, published out of Court when the Court is not sitting, is not included in the words 'offences under the Indian Penal Code,' although the contempt may include defamation. Such an offence is something more than mere defamation, and is of a different character. It is an offence which by the common law of England is punishable by the High Court in a summary manner by fine or imprisonment, or both. That part of the common law of England was introduced into the Presidency Towns when the late Supreme Courts were respectively established by the Charters of Justice. It is an offence which by the common law of England is punishable by the High Court in a summary manner by fine or imprisonment, or both. That part of the common law of England was introduced into the Presidency Towns when the late Supreme Courts were respectively established by the Charters of Justice. The High Courts in the Presidencies are Superior Courts of Record, and the offence of contempt, and the powers of the High Court for punishing it, are the same there as in this country, not by virtue of the Penal Code for British India and the Code of Criminal Procedure, 1882, but by virtue of the common law of England: 5 Moore's P.C.C., N.S. 497." In my view, having regard to the words used by Sir Barnes Peacock--particularly those "such an offence," i.e., scandalising a Court "is something more than mere defamation and is of a different character," it is clear that proceedings for contempt of Court--a Court of Record, at any rate, this Court--are not made or done in the exercise of original criminal jurisdiction within the meaning of cl. 41. These proceedings for contempt of Court are of a peculiar nature, though it may be that in certain aspects they are quasi-criminal; in my view they are not exercised as part of the original criminal jurisdiction of this Court. Consequently the application must fail. But I will consider the matter one step further. If it should be, contrary to my view, that proceedings for contempt of this Court are made or done in the exercise of its original criminal jurisdiction, it seems to me that this Court would not even in such having regard to the decision of the Privy Council, declare under cl. 41 that this case is a fit one for appeal to the Privy Council. This case is in its essentials a similar case to that of Surendra Nath Banerjee's L. R. 10 I. A. 171; s. c. I. L. R. 18 Cal. 109 (1883). In that case Sir Barnes Peacock--I am now quoting from p. 132 of volume 10 of the I. L. R., Calcutta series--says "Their Lordships having decided that the libel was a contempt of Court, and that the High Court had jurisdiction to commit the Petitioner for a period of two months, the case is not a proper one for an appeal to Her Majesty. In the case of Rainy v. The Justices of Sierra Leone 8 Moo. P. C. C. 47 (1853), 8 Moore's P.C.C. 47 at p.54, upon an application for leave to appeal to enable the Petitioner to get rid of certain fines imposed upon him by the Court of Sierra Leone for contempts of Court, it was said: 'It is the opinion not only of the members of the Committee who heard the petition, but also of the other members, who usually attend here to whom the petition has been submitted, and we have had the benefit of their judgment as well as our own, that we cannot interfere with such a subject. In this country every Court of Record is the sole and exclusive Judge of what amounts to a contempt of Court.' That case was referred to as an authority by the Judicial Committee in the case of McDermot v. The Justices of British Guiana L. R. 2 P. C. 341; 2 Moo. P. C. C. (N. S.) 466 (1868), (5 Moore's P.C.C., N.S., 466). In the latter case an application was made ex parte for leave to appeal from an order of the Supreme Court of Civil Justice in British Guiana, by which the Petitioner was, for a contempt of Court in publishing certain libels commenting on the administration of justice, and upon one of the Judges of the Court, committed to jail for a period of six months or until further orders: See S. C., p. 490, and 4 Moore's P. C. C., N. S., 110, 120. Leave to appeal was granted, without prejudice to the question of the competency of Her Majesty in Council to entertain an appeal from an order of a Court of Record inflicting punishment by fine or imprisonment a contempt of Court, which question was to be open to argument on the hearing of the appeal. The case came on for argument, and it was contended by the Solicitor-General, that the leave to appeal ought not to have been granted, as a Court of Record is the sole Judge of what constitutes a contempt. He stated, however, that he was prepared to support the order upon the merits, but he was not called upon to do so. He stated, however, that he was prepared to support the order upon the merits, but he was not called upon to do so. In delivering the opinion of the Judicial Committee Lord Chelmsford, after stating that the leave to appeal was conditionally granted, said the Respondents might have come in to discharge the order upon the very ground which had been taken, namely, that there could be no appeal against an order of a Court of Record committing a person for contempt, and that, in order to support the propriety of the leave to appeal, the Appellant must show either that the Court was not a Court of Record, or that, if it was a Court of Record, yet that there was something in the order committing the Appellant which rendered it improper, and therefore the subject of appeal. Then after deciding that the Court at Sierra Leone was a Court of Record, His Lordship says (498): 'Not a single case is to be found, where there has been a committal by one of the colonial Courts for contempt, where it appeared clearly upon the face of the order that the party had committed a contempt, that he had been duly summoned, and that the punishment awarded for the contempt was an appropriate one, in which this Committee has ever entertained an appeal against an order of this description.' Again, after referring to the authorities, and amongst others to Rainy's case 8 Moo. P. C. C. 47 (1853), his Lordship concluded by saying: 'Under these circumstances their Lordships entertain no doubt whatever as to the propriety of deciding that in this case the leave to appeal ought not to have been granted; that the Supreme Court of Justice was a Court of Record; and that, as a Court of Record, it had power to commit for the particular contempt. As their Lordships do not enter into the merits of the case, they will say nothing as to the character of the libel upon which the Court thought it proper to commit the publisher for contempt.' Acting upon these authorities and holding that the High Court had jurisdiction to commit the publisher of the libel in question for contempt, their Lordships will say nothing as to the character of the libel, or as to the extent of the punishment awarded. They will humbly advise Her Majesty to dismiss the petition." 3. They will humbly advise Her Majesty to dismiss the petition." 3. Mr. Banerji has made his application on the ground that this Court has no jurisdiction to commit the two applicants for contempt. That it has such jurisdiction is clearly laid down by their Lordships of the Privy Council in the case of Surendra Nath Banerjee L. R. 10 I. A. 171: s. c. I. L. R. 10 Cal 109 (1883). 4. Mr. Banerji has advanced a further argument which is based upon some words of Lord Morris in the case of McLeod v. St. Aubym L. R. [1899] A. C. 549 3. C. W. N. ccclxvi (346), L. R., (1899) Appeal Cases, 549. The head-note is Contempt of Court may be committed by publication of soandalous matter respecting the Court after adjudication as well as pending a case before it. In England committals for such contempts have become obsolete: in small colonies consisting principally of coloured populations they may still be necessary in proper cases: But held, that where the appellant was neither printer nor publisher nor writer of such scandalous matter, but had innocently lent the paper containing it to a friend without knowledge of its contents, he was neither constructively nor necessarily guilty of contempt of Court. 5. In that case Lord Morris at page 561, says with reference to summary procedure for contempt: "It is a summary process, and should be used only from a sense of duty and under the pressure of public necessity, for there can be no landmarks pointing out the boundaries in all cases. Committals for contempt of Court by scandalising the Court itself have become obsolete in this country." Then he goes on to say: "Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court." Lord Morris then goes on to consider the question whether there was contempt of Court in a man in lending a newspaper which contained scandalous matters and he decides that it was not. 6. Now, Mr. 6. Now, Mr. Banerji says that the words "committals for contempt of Court by scandalising the Court itself have become obsolete" indicate that there is no longer jurisdiction in this Court to exercise this summary procedure. That argument of course was raised when these applicants were before the Court and was dealt with in the judgment which was then delivered. But with deference to the argument of Mr. Banerji, I would like to point out that that statement "committals for contempt of Court by scandalising the Court itself have become obsolete in this country" is a statement of fact relating to England and Wales. It is a statement of fact which is proved to be incorrect, because in the following year there was the case of Regina v. Gray [1900] 2 Q. B. 36: 4 C. W. N. cxlvi (146), (1900) 2 Q. B. 36, in which the Courts in England punished the writer of a certain matter in a newspaper which scandalised a Judge. Again in 1928, the Courts in England punished the editor of The New Statesman in respect of some matter which was considered to be scandalising a Judge of the High Court in England. So as a statement of fact that is incorrect. Again in this country in 1917 there was the case, In the matter of the Amrita Bazar Patrika 21 C. W. N. 1161 ; s. C. 26 C. J. L. 459 ; I. L. R. 45 Cal. 169 (1917), reported in 26 C. L. J., 459, in which an attack was made in the newspaper upon the conduct of the Chief Justice of this Court. There the delinquent, who happened to be one of the applicants in this case, was punished by this Court for a contempt that he had committed. Under these circumstances it seems to me that the argument which Mr. Banerji has endeavoured to build on those lines from the judgment of Lord Morris in McLeod v. St. Aubyn L. R. [1899] A. C. 549: 3 C. W. N. cccxlvi (346), fails. 7. In my opinion, having regard to the decision of their Lordships of the Privy Council in the case of Surendra Nath Banerjee L. R. 10 I. A. 171 s. c. I. L. R. 10 Cal. Aubyn L. R. [1899] A. C. 549: 3 C. W. N. cccxlvi (346), fails. 7. In my opinion, having regard to the decision of their Lordships of the Privy Council in the case of Surendra Nath Banerjee L. R. 10 I. A. 171 s. c. I. L. R. 10 Cal. 109 (1883), it would not be open to this Court to declare that this case is a fit case for appeal to His Majesty in Council if, indeed, such leave could be given at all in such a case as this under cl. 41 of the Letters Patent of this Court of 1865. In my opinion, this application must be dismissed. Costello, J. 8. I entirely agree with the views expressed by my Lord the Chief Justice. In my opinion the order or sentence made by this Court on the 8th of April last was not an order or sentence made in the exercise of its original criminal jurisdiction. Therefore, this matter is not one which falls within the purview of the provisions of cl. 41 of the Letters Patent of this Court, dated 1865. The proceeding for contempt of Court--of a summary nature--are proceedings derived from the Common Law of England. There is inherent right to take such proceedings in this Court by virtue of its position as a Superior Court of Record. Moreover the power of this Court to exercise jurisdiction of a summary character in a case of contempt was conferred or, affirmed by the Charter under which the Supreme Court was originally established: which power this Court has inherited. The power to punish for a contempt of Court is a power sui generis. In my opinion it is not a power which is or can be exercised under the ordinary criminal jurisdiction of the Court. 9. The judgment of Sir Barnes Peacock in Surendra Nath Banerji's case L. R. 10 I. A. 171 s. c. I. L. R. 10 Cal. 109 (1883), in my view, puts this matter beyond all question whatever and indicates that when this Court as a Court of Record thinks it fit to exercise summary jurisdiction and under that jurisdiction punishes for a contempt of Court it is not open to the person concerned to ask this Court for leave to appeal to His Majesty in Council. 10. 10. With regard to the observation of Lord Morris in the case of McLeod v. St. Aubyn L. R. [1899] A. C. 549; 3 C. W. N. cccxlvi (346), (L. R. 1899 Appeal Cases 549), as I pointed out in the judgment which I gave when this matter was before the Court on the 8th of April last, that observation is clearly not only in the nature of an obiter dictum, but a statement which could only have been intended to express the opinion of the learned Judge with regard to the state of fact existing in England at the time the observation was made. But whether one takes that observation as a statement of fact or even as an expression of opinion with regard to the state of the law, it is obvious from the subsequent events--from the proceedings and decisions in cases which have occurred since the time of Lord Morris--that that observation even as a statement with regard to the law was not accurate. In any event, as the Chief Justice has already pointed out, Lord Morris was speaking solely as regards the state of things in England. That proposition has no reference whatever either to the state of fact or to the state of law existing in India. 11. In my opinion it is abundantly clear from the judgment in Surendra Nath Banerji's case L. R. 10 I. A. 171 : s. c.I. L. R. 10 Cal. 109 (1883) that summary proceedings for a contempt of Court is not only competent but the decision, that is to say, judgment, order and sentence given in such proceedings must be taken to be final and not open to appeal. I think this application for leave must be refused.