R.K. ANAND v. REGISTRAR, DELHI HIGH COURT

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:i.- - A (Criminal Appeal No. 1393 of 2008) JULY 29, 2009 B

._ CONTEMPT OF COURTS ACT, 1971: ~ c Sections 2, 3, 12, 14, 17:

Hit and run case known as BMW case - Attempt to suborn a prosecution witness - Sting operation by a TV channel - High Court issuing Contempt Notices to Defence Counsel (RK) and the Special Public Prosecutor (IU) who were seen .discussing with the Prosecution witness (K) in the t sting operation - Not satisfied with the explanation of the alleged 'contemnors', High Court held them viz. 'RK' and 'IU' guilty of committing contempt of court and in exercise of power under Article 215 of the Constitution of India, prohibited them from appearing in the Delhi High Court and courts subordinate to it for four months - However, they were left free to carry on their professional work like consultations, advices, conference, opinion etc. - High Court also held that both the Advocates had forfeited their right to be designated as Senior ..;

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----1 instead tried to take on the High Court by defying its authority A - Punishment given by High Court inadequate and incommensurate to the seriousness of his actions and conduct - He needs to be kept away from the portals of the court for a longer time - Accordingly, notice to be issued to him - Such a notice would also cure the defect in the High B Court order in debarring him from appearing in courts without giving any specific notice - There is no doubt that the exchanges between the proposed Prosecution Witness 'K' -" ~ and the Prosecutor 'JU' far crosses the limits of proper professional conduct of a prosecutor especially engaged to c conduct a sensational trial and a designated Senior Advocate of long standing - Thus the High Court rightly found that the conduct of 'IU' was inappropriate for a lawyer in general and a prosecutor in particular - But having regard to the charge of criminal contempt any suspicion however strong cannot take place of proof - Hence it would not be wholly prudent to ~ rely upon the exchanges between 'K' and 'RK' to record a finding against 'IU' - On the basis of materials on record the change of criminal contempt cannot be held to be satisfactorily established against 'IU' and he is entitled to benefit of doubt - Constitution of India, Articles 19, 227 and 235 - Administrative Law - Principles of Natural Justice.

Issue of Notice - High Court issuing notices to the

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A CONSTITUTION OF IND/A, 1950: ,.._. Articles 227, 235 - Powers and duties of High Courts - Every failed trial is a negative comment on the State's High Court - It is high time that the High Courts assume a more pro-active role in such matters - The powers are not confined 8 only to posting, transfer and promotion of the officers of the subordinate judiciary - The power of control should also be exercised to protect them from external interference that may sometime appear overpowering to them and to support them ~ to discharge their duties fearlessly. ~ c ADVOCATES ACT, 1961:

Section 34 - Debarring an Advocate from appearing in Court - In a matter as fundamental and grave as preserving D the purity of judicial proceedings, High Court would be free to exercise the powers under Section 34 not withstanding the ·~ fact that Rules prescribing the manner of exercise of power have not been framed - In the absence of statutory rules in this regard, an Advocate facing charges of contempt would normally think only of punishments under Section 12 of the E Contempt of Courts Act - He may not know that it might end up in being debarred from appearing in Courts - Rules of Natural Justice demand that he should be clearly told that he might be debarred for a specific period - The warning may be given in the initial notice of contempt or after he was held guilty- In the instant case, the Advocates were not given any notice by the High Court that if found guilty they might be " - prohibited from appearing in the High Court and the Courts subordinate to it for a certain period - To that extent the directions given by the High Court was not in conformity with the Principles of Natural Justice - In order to avoid such controversies in future all the High Courts which have not so far framed rules under Section 34 are directed to frame rules • ..., without any further delay within four months - The High Courts may also consider framing Rules for having Advocates on H

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·J Record on the pattern of the Supreme Court of India - A Contempt of c;ourts Act, 1971, Sections 12, 14, 17 - Administrative Law - Principles of Natural Justice.

STING OPERATION BY TV CHANNELS:

Sting operation conducted by NDTV in BMW case - The 8 programme telecast may have faults and weaknesses, but it showed to the people that a conspiracy was afoot to • undermine the trial - What was shown was proved to be • substantially true and accurate - It was clearly intended to prevent the attempt to interfere with or obstruct the due course of the trial - It was indeed in larger public interest and served an important public cause.

LEGAL PROFESSION - Falling standards - Concern expressed - Bar Council of India and State Bar Councils to pay proper attention to the restoration of high professiona•t standards among lawyers worthy of their position in the judicial system and in the society.

In a hit and run accident in Delhi, six people were crushed to death, including three policemen. Known as the BMW Case, it was lingering for years, the main accused coming from a very wealthy business family. It evoked considerable media attention and public interest.

An English News Channel NDTV telecast a F programme in which one 'K' was shown meeting 'IU', the Special Public Prosecutor and 'RK', the Senior Defence Counsel (with two others) negotiating for the sell out of 'K' in favour of defence for a very high price. 'K' considered the most valuable witness for the prosecution G was later on dropped by the prosecution. Shocked by the TV programme the Delhi High Court suo moto initiated a proceeding. It called for from the news channel all the materials on which the telecast was based and after .·.examining those materials issued show cause notices to H

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A 'RK', 'IU' and 'BS', an associate advocate with 'RK' as to ,-... .. why they should not be convicted and punished for committing criminal contempt of court as defined under section 2 (c) of the Contempt of Courts Act. On considering their show cause and after hearing the B parties the High Court expressed its displeasure over the role of 'BS' but acquitted him of the charge of contempt of court. As regards 'RK' and 'IU', however, the High Court found and held that their acts squarely fell within the definition of contempt under clauses (ii) & (iii) of c section 2(c) of the Contempt of Courts Act. It, accordingly, held them guilty of committing contempt of Court and in exercise of power under Article 215 of the Constitution of India prohibited them, by way of punishment, from appearing in the Delhi High Court and the courts subordinate to it for a period of four months from the date 0 of the judgment. It, however, left them free to carry on their other professional work, e. g., 'consultations, advises, conferences, opinion etc'. It also held that 'RK' and 'IU' had forfeited their right to be designated as Senior Advocates and recommended to the Full Court to E divest them of the honour. In addition to this the High Court also sentenced them to fine of rupees two thousand each. Hence the appeals.

The following questions arose for consideration: F

1. Whether the conviction of the two appellants for committing criminal contempt of court is justified and sustainable?

2. Whether the procedure adopted by the High Court G in the contempt proceedings was fair and reasonable, causing no prejudice to the two appellants?

3. Whether it was open to the High Court to prohibit the appellants from appearing before the High Court and H the courts sub-ordinate to it for a specified period as one

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-~ of the punishments for criminal contempt_ of court? A

4. Whether in the facts and circumstances of the case the punishments awarded to the appellants can be said to be adequate and commensurate to their misdeeds?

Apart from the above, some other important issues B also arose from the facts of the case:

... 5. The role of NDTV in carrying out sting operations ~ and telecasting the programme based on the sting materials in regard to a criminal-trial that was11<:>ing on c before the court.

6. The declining professional standards among ,,. lawyers, and

7. The root-cause behind the whole affair; the way D the BMW trial was allowed to go directionless.

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A facing the charge of contempt of court and that should >- • allow him/her the fullest opportunity to defend himself/ herself. [Para 82] [1108-A-D]

In Re Vinay Mishra (1995) 2 SCC 584 and Daroga Singh and Ors. vs. B.K. Pandey (2004) 5 sec 26, relied on. B Mritunjoy Das vs. Sayed Hasibur Rahman, (2001) 3 SCC 739; Chotu Ram vs. Urvashi Gulati and Ors., (2001) 7 SCC 530; Anil Rattan Sarkar vs. Hirak Ghosh, (2002) 4 SCC 21; • Bijay Kumar Mahanty vs. Jadu @ Ram Chandra Sahoo, c (2003) 1 SCC 644; J. R. Parashar, Advocate vs. Prashant Bhushan, Advocate (2001) 6 SCC 735; S. Abdul Karim vs. - •

NK Prakash and others (1976) 1 SCC 975; SA Khan vs. Bhajan Lal, (1993) 3 SCC 151; Quamarul Islam vs. S. K. ~- Kanta, (1973) 1 SCC 471; N. Shri Rama Reddy vs. V. Giri D (1970) 2 SCC 340; R. M. Malkani vs. State of Maharashtra (1973) 1 SCC 471; Mahabir Prasad Verma vs. Dr. Surinder Kaur (1982) 2 SCC 258 and Rafll Singh vs. Col. Ram Singh (1985) Suppl SCC 611, referred to.

R vs. Stevenson, 1971 (1) All ER 678 and State vs. E Cannon. 92 N C App. 246, referred to.

'The Sedona Conference. Commentary on ES/ Evidence & Admissibility': A Project of The Sedona Conference Working Group on Electronic Document Retention & F Production (WGl).,by Mr. Ahmed published in Sedona Conference Journal, Fall 2008 and "Detection Technique of Video Tape Alteration on the Basis of Sound Track Analysis" The Indian Police Journal, July- September 2004 issue, referred to. G 2.1. 'RK' admitted that 'K' met him at the airport lounge. He didn't deny any part of the conversation between them as shown in the programme based on the • ... sting recordings. To the anchor of the first programme, H

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~ he impliedly admitted meeting 'K' for the second time in the car simply stating that he didn't ask 'K' to sit in the car and he did not ask him to come to the office. But •. about half an hour later, to the anchor of the second programme, though admitting meeting 'K' at the airport lounge, 'RK' completely denied meeting him in the car or anywhere else for the second time. However, the denial was quite false. [Para 84] [1113-C-D] J• 2.2. 'RK', in his interactions with the programme ~ _..., anchors, appeared to be quite stunned at being caught on the camera in the wrong act, rather than outraged at c any false accusations. [Para 85] [1113-E-F]

-11:: 2.3. Immediately after the telecast 'RK' sent a legal notice to NDTV threatening legal actions against them and demanding a. huge sum as compensation. NDTV D .... gave its reply to the legal notice and thereafter 'RK' didn't pursue the matter any further. tPara 86) (1113-F-G]

2.4. There is plain and clear admission in regard to

- the second meeting taking place in the car between 'RK' and 'K' on the evening of May 8, 2007. The statement made on oath before the High Court thus completely falsifies his denial in the live interview with the anchor of the TV programme about the second meeting with 'K' in E

.. the car. As to the later part of the paragraph regarding the alleged sting on 'K' by 'S', this Court does not have the slightest doubt that it was an afterthought and concoction. Had there been such a sting recording 'RK' was duty bound to inform the High Court about it when the Criminal Revision against the trial court order summoning 'K' as court witness was heard on several dates in May 2007 before the telecast of the programme --- .j by ND1V. He was equally duty bound to inform the trial court about 'K's approaches and the sting done on him by 'S' when 'K' was examined before it on May 14, 17 & H

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A 29. [Para 89) [1115-A-D] .... 2.5. Further, interestingly, though calling the sting recordings fabricated, manufactured, and distorted, he also relies on the very same sting recordings to make out - some point or the other in his defence. [Para 90) [1115- B E]

2.6. 'RK' thus accepts the entire recordings in both the stings. For, it is absurd even to suggest that the sting JI recordings are true and correct if those are seen as . c supporting his explanations but are otherwise false and fabricated. [Para 91) [1119-A-B]

2.7. There is no substance in the anomalies and alleged inter correlation in the sting recordings as pointed .- D out on behalf of 'RK' on the basis of the eight minute CD which he got prepared from the materials supplied to him by the Court. Along with ti .e other materials this Court also viewed eight minute CD produced by 'RK'. In the CD an attempt is made to show that the frames in the sting recordings some times jumped out of the sequence number and such other technical flaws. The objections raised by 'RK' were fully explained by the affidavit filed on behalf of NDTV. [Para 93) [1119-D-F] - 2.8. On a careful consideration of the materials on record this Court does not have the slightest doubt that the authenticity and integrity of the sting recordings was never disputed or doubted by 'RK'. He kept on changing his stand in regard to the sting recordings. In the facts and circumstances of the case, therefore, there was no requirement of any formal proof of the sting recordings. Further, so far as 'RK' is concerned there was no violation of the principles of natural justice inasmuch as he was . given copies of all the sting recordings along with their transcripts. He was fully made aware of the charge against him. He was given fullest opportunity to defend

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·-~ himself and to explain his conduct as appearing from the sting recordings. The High Court viewed the microchips ·. used in the spy camera and the programme telecast by TV channel in his presence and gave him further opportunity of hearing thereafter. The sting recordings were rightly made the basis of conviction and the irresistible conclusion is that the conviction of 'RK' for contempt of court is proper, legal and valid calling for no ... interference. [Para 95] [1120-C-F] .. 3.1. The recording of the sting operation on 'IU' is more than an hour long. But the transcript of this sting c recording submitted to the Court by NDTV is confined only to the exchange between 'IU' and 'K'. In the absence ..... of the full transcript it becomes difficult and cumbersome to see what transpired between 'K' and 'D' immediately before and after the meeting with their subject. That part D +. of the sting recording was also highly relevant and important for judging the true import of the exchange that took place between 'K' and 'IU'. It is surprising that the High Court did not notice this big omission in the transcript of the first sting and this Court records its E disapproval of NDTV in withholding the full transcript of the sting recording. [Para 97] [1121-G-H; 1122-A-B] ,., 3.2. The conduct of NDTV before the High Court in a vary serious proceeding was quite cavalier and causal. F At the time the High Court issued show cause notices to the three proceedees it did not have before it the recording on one of the five microchips used in the sting operations. The materials given to the proceedees along with show cause notice were not exactly the same as G submitted before the High Court. The explanation in the '- 4 form of affidavit came on October 1, 2007 on the same day when 'IU' filed his reply affidavit in response to the show cause notice. [Para 100] [1124-F-H; 1125-A]

3.3. Having regard to seriousness of the proceeding H

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"'1- ,, A this Court should have wished that it was free from such lapses. But it needs to be made absolutely clear that the irregularities pointed out above were in regard to the first • sting concerning 'IU'. These in no way affect 'RK' or alter his position. The discussions and findings recorded 8 above in respect of 'RK' thus remains completely unaffected by the mistakes pointed out here. [Para 102] [1125-E-G] .)

3.4. 'IU' does not deny the conversation that is shown . to have taken place between him and 'K'. In his first c response, that is, in the interview given to NDTV on the morning following the telecast he said that he did not deny anything at all, he did not deny {the utterances) but the inferences sought to be drawn were totally unfounded and wrong. When he said 'Bade Saheb' he meant some D high officer in the police headquarter. He also said that was the way 'K' used to refer to superior officers in the police headquarter(s) and that is how he had referred to them in his deposition before the trial court. When the trial court asked 'K' to clarify he explained that Bade Saheb E meant a superior officer of the police headquarter. The words Bade Saheb, according to 'IU', did not in any way refer to 'RK'. The High Court did not accept 'IU's defence. The High Court held that there was great familiarity between 'IU', 'K' and 'RK'. In coming to this conclusion, F the High Court relied a great deal upon the conversations between 'K' and 'RK'. [Paras 106, 108 and 109) [1129-H; 1130-A-G]

3.5. The High Court further held that when 'IU' asked 'K' whether he had met 'Bade Saheb' he only meant 'RK'. G It rejected 'IU's stand that what he meant by the expression was a senior police officer. The High Court • observed that no material was produced on behalf of 'IU' in support of the statement that in colirse of his deposition before the trial court 'K' used the expression H

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'Bade Saheb' to mean a senior police officer. It further observed that in the sting operation, just before the conclusion of the meeting, 'K' had said that he had met 'P' (who was then the Police Cbmmissioner). This, according to the High Court, clearly showed that 'K' referred to the Police Commissioner by his name and not by the expression 'Bade Saheb'. High Court further observed that for 'K' there was no reason to meet the senior police officers particularly when he was dropped as prosecution witness. There was nothing to suggest that while in Delhi 'K' used to meet the senior police c officers. On the other hand there was sufficient evidence to show that he was very familiar with both 'IU' and 'RK', had easy access to both of them and used to frequently meet them. The High Court then took up 'K's affidavit that supported 'IU's plea that by the expression he had meant some senior police officer and not 'RK' and rejected it on a number of grounds. [Paras 110 and 111] [1130-G-H; 1131-A-F]

3.6. This Court has carefully gone through all the materials concerning 'IU' and perused the transcript of the exchange between 'K' and 'IU' and have also viewed the full recording of the sting several times since the full transcript of the recording is not available on the record. This Court does not have the slightest doubt that the exchange between 'K' and 'IU' far crosses the limits of proper professional conduct of a prosecutor (especially engaged to conduct a sensational trial) and a designated Senior Advocate of long standing. This Court not prepared to accept for a moment that on seeing 'K' suddenly after several years in the company of a 'burly stranger' 'D', 'IU' became apprehensive about his personal safety since in the past some violent incidents had taken place in the court premises and some lawyers had lost their lives and consequently he was simply play- acting and pampering 'K' in order to mollify him. The plea H

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A is not borne out from the transcript and much less from .... the video recording. In the video recording there is no trace of any fear or apprehension on his face or in his gestures. He appears perfectly normal and natural sitting among his colleagues (and may be one or two clients) 8 and at no point the situation appears to be out of his control. As a matter of fact, the plea is not quite worthy of a lawyer of 'IU's standing and this Court should have much appreciated had he simply taken the plea of an )> error of discretion on his part. [Para 116] [1134-E-H; 1135- " c A] 3.7. Coming back to the exchange between 'IU' and 'K', this Court accepts that the transcript of the exchange does not present the accurate picture; listening to the live voices of the two (and others present in the chamber) on the CD gives a more realistic idea of the meeting. This Court grants everything that can be said in favour of 'IU'. The meeting took place without any prior appointment from him. 'K' was able to reach him, unlike 'RK', without his permission or consent. 'IU' did not seem to be overly enthused at the appearance of 'K'. Accosted by 'K', he spoke to him out of civility and mostly responded only to his questions and comments. There were others present in the chamber with whom he was equally engaged in conversation. He also greeted someone else -1 ', F who came into the chamber far more cheerfully than 'K'. But the undeniable fact remains that he was talking to him all the time about the BMW trial and the related proceedings. Instead of simply telling him to receive the summons and appear before the court as directed, 'IU' G gave reassurances to 'K' telling him about the revision filed in the High Court against the trial court's order. He advised him to relax saying that since he had dropped .. him (as a prosecution witness) the court was no one to ask for his statement. The part of the exchange that took H place outside the chamber was worse. Inside the

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~ ... chamber, at one stage, 'IU' seemed even dismissive of 'K' A but on coming out he appeared quite anxious to fix up . another meeting with him at his residence giving promising good Scotch whisky as inducement. 'IU' would be the first person to deny any friendship or even a long acquaintanceship with 'K'. The only common factor B between them was the BMW case in which one was the prosecutor and the other was a prosecution witness, later . dropped from the list of witnesses. A lawyer, howsoever, affable and sociable by disposition, if he has the slightest ~ respect for professional ethics, would not allow himself c such degree of familiarity with the witness of a criminal trial that he might be prosecuting and would not indulge with him into the kind of exchange as admittedly took place between 'IU' and 'K'. This Court is also not prepared to believe that in his conversation with 'K', 'IU' did not mean what he was saying and he was simply trying to ~ somehow get rid of 'K'. The video of the sting recordings leaves no room for doubt that 'IU' was freely discussing the proceeding of BMW case with 'K' and was not at all averse to another meeting with him rather he was looking forward to it. This Court, therefore, fully endorses the High Court finding that the conduct of 'IU' was inappropriate for a lawyer in general and a prosecutor in particular. [Para 117] [1135-8-H; 1136-A-D] ~

4.1. The High Court held that there was an extraordinary degree of familiarity between 'IU', 'K' and 1 'RK' and each of them knew that the other two were equally familiar with each other. So far as BMW trial is concerned 'K' was a link 'between 'IU' and 'RK'. 'IU', by reason of his familiarity both with 'RK' and 'K' would also know about the game that was afoot for the subversion '- -.1 of the trial. He failed to inform the prosecution and the court about it and his omission to do so was likely. to have a very serious impact on the trial. He was, therefore, H

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A guilty of actually interfering with due course of judicial ... proceeding, in the BMW case. [Para 119) [1136-E-G]

4.2. While examining what 'K' understood or rather what he wanted 'D' to believe what was meant by 'Bade Saheb' it is necessary to bear in mind that the whole B object of the sting was to uncover the alleged unholy alliance between the defence and the prosecution. It was based on the premise that the prosecution was colluding ,. with the defence in the effort to save the accused In the ~ .BMW case. In that situation for 'K', who for his own c reasons was anxious to get NDTV's help for doing the sting, it was natural to find out and show to 'D' some link between 'IU' and 'RK' irrespective of whether or not there was, in reality, any link between the two. There is no way to find out whether 'K' really believed that by 'Bade D Saheb' 'IU' meant 'RK' or he just wanted 'D' to believe so. But even if 'K' really understood Bade Saheb to mean 'RK', that would not change the position much. It is not important what 'K' or 'D' or any one else understood (truthfully or otherwise!) by that expression. One may use E an expression to mean a certain thing but to the listener it may mean something quite different. What is important here is to judge what 'IU' meant when he used that expression. On the basis of the exchange between 'K' and 'D', it will be highly unsafe to hold that when 'IU' F asked 'K' whether he had met "Bade Saheb' he meant 'RK'. [Para 125] [1139-D-H; 1140-A-B]

4.3. The High Court rejected 'IU's explanation that what he meant by 'Bade Saheb' was some senior officer in the police headquarter. According to 'IU', 'K' was in the G habit of directly approaching the superior police officers and he would refer to them by that expression. The proceeding before the High Court was under the .. Contempt of Courts Act and the High Court was not following any well known and well established format. In H

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"'- .. that situation it was only fair to give notice to the A proceedees to substantiate the pleas taken in the reply affidavit by leading proper evidence. It must, therefore be held that the High Court rejected a material plea raised on behalf of the 'IU' without giving him any opportunity to substantiate it. [Paras 126 and 127] [1140-C; 1141-A- B E]

4.4. Further, the High Court, for arriving at the finding ... that there was a high degree of familiarity among 'IU', 'K' ~ and 'RK' has repeatedly used the transcripts of the meetings between 'K' and 'RK'. It is indeed true that in c the exchanges between 'K' and 'RK' there are many references to 'IU'. That may give rise of a strong suspicion, of a common connection between the three. But having regard to the charge of criminal contempt any suspicion howsoever strong cannot take the place of proof and this D -4- Court does not feel it wholly prudent to rely upon the exchanges between 'K' and 'RK' to record a finding against 'IU'. [Para 128] [1141-E-G]

4.5. The appellant was given no opportunity to show that, as a matter of fact, after 'K' met him at the Patiala House on April 28, 2007 he had informed the concerned authorities that after being summoned by the court 'K' :..- was back to his old tricks. He further submitted that the appellant, given the opportunity, could also show that the decision to riot examine him as one of the prosecution witnesses was taken by the concerned authorities in consultation with him. On the basis of materials on record the charge of criminal contempt cannot be held to be satisfactorily established against 'IU' and he is entitled to the benefit of doubt. [Paras 130 and 131] [1142-C-F] . """ 5.1. At first the direction of the High Court leaving the microchips containing the original' sting recordings and the magnetic tapes with the TV channel indeed appears to be somewhat strange and uncommon but a moment's H

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I> • A thought would show the rationale behind it. If the recordings on the microchips were fake from the start or if the microchips were morphed before notice was issued to the TV channel, those would come to the court in that condition and in that case the question whether the B microchips were genuine or fake/morphed would be another issue. But once the High Court obtained their copies there was no possibility of any tampering with the microchips from that stage. Moreover, the High Court ,. might have felt that the TV channel with its well equipped c studio/laboratory would be a much better place for the " handling and conservation of such electronic articles than the High Court Registry. On the facts of the case, therefore, there was no lapse on the part of the High Court in leaving the microchips in the safe custody of the TV channel and in any event it does not have any bearing D on the final decision of the case. [Para 133] [1143-B-E]

5.2. Since the contents of the sting recordings were admitted there was no need for the proof of integrity and correctness of the electronic materials. But at the time the E High Court issued notices to the two appellants (and two others) the position was completely different. At that stage the issue of integrity, authenticity and reliability of the sting recordings was wide open. The appellants might have taken the stand that not only the sting recordings but their respective responses shown by the TV channel were fake and doctored. In such an event the TV channel would have been required to be subjected to the strictest proof of the electronic materials on which its programmes were based and, in case it failed to establish their genuineness and correctness, it would have been· equally guilty, if not more, of serious contempt of court and other criminal offences. By all reckoning, at the time . ,. of initiation of the proceeding, the place of NDTV was along with the appellants facing the charge of contempt. H Such a course would have put the proceeding on a more

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~-~ even keel and given it a more balanced appearance. Then A perhaps there would have been no scope for the grievance that the High Court put the TV channel on the complainant's seat. And then perhaps the TV Channel too would have conducted itself in a more careful manner and the lapses as in the case of 'IU' might not have B occurred. [Para 134] [1143-G-H; 1144-A-D]

6.1. In a given case a direction disallowing an >. ;. advocate who is convicted of criminal contempt from appearing in court may not only be a measure to maintain the dignity and orderly functioning of the courts but may c become necessary for the self protection of the court and for preservation ofthe purity of court proceedings. [Para 143) [1154-D-E]

6.2. Further, the prohibition against appearance in D .... courts does not affect the right of the concerned lawyer to carry on his legal practice in other ways. [Para 143] [1155-D]

6.3. The occasion to take recourse to the extreme E step of debarring an advocate from appearing in court should arise very rarely and only as a measure of last

~ resort in cases where the wrong doer advocate does not at all appear to be genuinely contrite and remorseful for his act/conduct, but on the contrary shows a tendency to repeat or perpetuate the wrong act(s). [Para 145] [1155- F F-G]

6.4. Ideally every High Court should have rules framed under section 34 of the Advocates Act in order to meet such eventualities but even in the absence of the G Rule the High Court cannot be held to be helpless against .... -../ such threats. In a matter as fundamental and grave as preserving the purity of judicial proceedings, the High Court would be free to exercise the powers vested in it under section 34 of the Advocates Act notwithstanding H

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A the fact that Rules prescribing the manner of exercise of power have not been framed. But in the absence of statutory Rules providing for such a course an advocate facing the charge of contempt would normally think of only the punishments specified under section 12 of the B Contempt of Courts Act. He may not even imagine that at the end of the proceeding he might end up being deb:ured from appearing before the court. The rules of natural justice, therefore, demand that before passing an ).

order debarring an advocate from appearing in courts he c must be clearly told that his alleged conduct or actions are such that if found guilty he might be debarred from appearing in courts for a specific period. The warning may be given in the initial notice of contempt issued under section 14 or section 17 (as the case may be) of the Contempt of Courts Act. Or such a notice may be given after the proceedee is held guilty of criminal contempt before dealing with the question of punishment. [Para 146] [1155-G-H; 1156-A-E]

6.5. In order to avoid any such controversies in future all the High Courts that have so far not framed rules under section 34 of the Advocates Act are directed to frame the rules without any further delay. It is earnestly hoped that all the High Courts shall frame the rules within

F four months. The High Courts may also consider framing rules for having Advocates on Record on the pattern of the Supreme Court of India. Suborning a witness in a criminal trial is an act striking at the root of the judicial proceeding and it surely deserves the treatment meted ' out to the appellant. But the appellants were not given G any notice by the High Court that if found guilty they might be prohibited from appearing in the High Court, and the courts subordinate to it, for a certain period. To that .. "' extent the direction given by the High Court was not in conformity with the principles of natural justice. [Para 147] H [1156-E-H]

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Ex. Capt. Harish Uppal vs. Union of India and Anr. (2003) A 2 sec 45, followed.

Supreme Court Bar Association vs. Union of India (1998) 4 SCC 409; Pravin C. Shah vs. K.A. Mohd. Ali and Anr. (2001) 8 SCC 650 and Bar Council of India vs. The High B Court of Kera/a (2004) 6 SCC 311, referred to.

7.1. What is of significance in 'K"s affidavit, however, is that it anticipated what in the sting recordings might prove fatal for 'RK' and 'IU' and tried to do the ground work for their defence. In regard to his meeting with 'IU', C 'K' said that he met and spoke to him in the manner directed by 'P'. He further said on affidavit that when 'IU' asked him if he had met 'Bade Saheb' he implied some senior police official but it was 'P' who forced him to say that 'IU' referred to 'RK'. Now, this is exactly what 'IU' said D in his interview to the TV channel and what he would say later in his show cause to the High Court. He also said that as agreed between the two in the meeting of April 28, 2007, he again met 'IU' in the evening but the conversation that took place in that meeting exposed E NDTV story and, therefore, that recording was withheld from being telecast. [Para 150] [1157-H; 1158-A-C]

7.2. The similarity between what 'K' said in his affidavit and what 'RK~ had to say about this matter and the manner in which he would say it is unmistakable. This Court is unable to believe the manner in which 'K's affidavit fore-shadows the proceedees defence was simply coincidental. It does not require much imagination to see that 'K' had once again switched over sides and he had joined hands with those whom he had earlier tried to trap in the stings. [Para 151] [1158-E-G]

8.1. Of all the obstructive measures adopted before the High Court the most unfortunate and undesirable H

p. 1046 Copy page pinpoint

A came from 'RK' in the form of a petition 'requesting' ,. . Manmohan Sarin J., the presiding judge on the bench dealing with the matter, to recuse him from the proceeding. This petition, an ill concealed attempt at intimidation, was, as a matter of fact, 'RK's first response B to the notice issued to him by the Court. He stated in this petition that he had the feeling that he was not likely to get justic~ at the hands of Manmohan Sarin J. He further stated alluding to some past events, that he had tried his A best to forget the past and bury the hatchet but the way .- c and the manner in which the matter was being dealt with had caused the greatest damage to his reputation. He made the prayer that the recusal application should be heard in camera and the main matter be transferred to another Bench of which Sarin J. was not a member. Along with the petition he filed a sealed cover containing D a note and the materials giving rise to the belief that he was not likely to get justice at the hands of Sarin J. [Para 156] [1160-A-D]

8.2. Having dealt with the rest of the allegations made in the recusal application, the order, towards its end, said something which alone was sufficient to reject the request for recusal. It was pointed out that the applicant had a flourishing practice; he had been frequently appearing in the court of Sarin, J. ever since he was appointed as a judge and for the past twelve years was getting orders, both favourable and unfavourable, for his different clients. He never complained of any unfair treatment by Sarin J. but recalled his old 'hostility' with the judge only after the notice was issued to him. [Para G 158] [1162-D-E] 8.3. The said order correctly sums up what should be the Court's response in the face of a request for recusal made with the intent to intimidate the court or to get better of an 'inconvenient' judge or to obfuscate the H

1047 issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice. [Para 159] [1163-C-D]

8.4. A motivated application for recusal, therefore, needs to be dealt with sternly and should be viewed ordinarily as interference in the due course of justice leading to penal consequences. [Para 159] [1163-E]

8.5. The other Judge on the Bench, however, it seems was unable to bear the onslaught and he took the easy way out. He expressed his inability to concur with the c order passed by presiding judge observing that "the nature of the controversy before us pertains to my learned brother alone. It revolves around a number of factual assertions, which can only be known to my learned brother personally, and which must necessarily D be examined in the light of the law on the subject. "- Therefore, I consider it inappropriate to express any opinion in the matter, one way or the other." Having passed the brief separate order he declined to take any further part in the proceeding. [Para 160] [1163-E-G] E 8.6. The said development provided 'RK' with another "\ opportunity to carry on his offensiye further. He i unhesitatingly availed of the opportunity and filed an ) ~ application for clarification/review of the order dated October 4, 2007 dismissing his recusal petition. Review F was sought primarily on the ground that the order of Sarin J. was not the order by the Bench since the other judge had declined to concur with him. After the other judge opted out of the Bench, the Chief Justice put Lokur J. in his place. Consequently, the clarification/review G application came before Sarin J., sitting with Lokur J., and .. ,., the first thing this Bench was told, and with some assertiveness too, was that it was not competent to hear the application and it could only be heard bythe previous H

p. 1048 Copy page pinpoint

A Bench as it arose from an order passed by that Bench. ~ ~ The clarification/review application was rejected by a long order dated November 29, 2007 authored by Lokur J. Henceforth all substantive orders in the proceeding werewritten, not by the presiding judge, but by Lokur J. B and the significance of it is not lost on us. The application for recusal though rejected was not completely unsuccessful. It left a lasting shadow on the proceeding. [Paras 161 and 162] [1164-A-D]

8.7. Apart from filing an application for its clarification/review before the High Court, the order rejecting the recusal application was also sought to be challenged before this Court by filing SLP. The SLP was, however, withdrawn on December 14, 2007. Nevertheless, .... the challenge to the High Court order rejecting the recusal application is still not given up and paragraphs H & I of the Grounds i,, the present Memo of appeal • expressly seek to assail that order. The appellant was given ample time to consider the suggestion for withdrawing the said grounds but later, on enquiry his counsel stated that he had not pressed those grounds in course of his submissions exercising his discretion as the Counsel but he had no instructions to get those grounds deleted from the SLP. [Paras 163 and 164] [1164- E-H; 1165-A-C] F 8.8. The action of the appellant, 'RK' in trying to suborn the court witness in a criminal trial was reprehensible enough but his conduct before the High Court aggravates the matter manifold. He does not show any remorse for his gross misdemeanour and instead G tries to take on the High Court by defying its authority. The punishment given to him by the High Court was wholly inadequate and incommensurate to the seriousness of his actions and conduct. Accordingly, it is proposed to issue a notice to him for enhancement of H

1049 punishment. By his actions and conduct the appellant A has established himself as a person who needs to be !<ept away from the portals of the court for a longer time. The notice would therefore require him to ~how-cause why the punishment awarded to him should not be enhanced as provided under section 12 of the Contempt of Courts B Act. He would additionally show-cause why he should not be debarred from appearing in courts for a longer period. The second part of the notice would also cure the defect in the High Court order in debarring the appellant from appearing in courts without giving any specific c notice in that regard. [Para 165] [1165-D-G]

9.1. This Court unable to agree that the TV channel •, viz. NDTV should have carried out the stings only after obtaining the permission of the trial court or the Chief Justice of the Delhi High Court and should have D "- submitted the sting m~terials to the 'court before its telecast. Such a course would not be an exercise in journalism but in that case the media would be acting as some sort of special vigilance agency for the court. On little consideration the idea appears to be quite repugnant E both from the points of view of the court and the media, It would be a sad day for the court to employ the media / ,...l for setting its own house in order; and media too would ~ certainly not relish the role of being the snoopers for the court. Moreover, to insist that a report concerning a F pending trial may be published or a sting operation concerning a trial may be done only subject to the prior consent and permission of the court would tantamount to pre-censorship of reporting of court proceedings. And this would be plainly an infraction of the media's right of G freedom of speech and expression guaranteed under ... ~ Article 19(1) of the Constitution. This is, however, not to say that media is free to publish any kind of report concerning a sub-judice matter or to do a sting on some H

p. 1050 Copy page pinpoint

; ~ A matter concerning a pending trial in any manner they please. The legal parameter within which a report or comment on a sub-judice matter can be made is well defined and any action in breach of the legal bounds would invite consequences. Compared to normal B reporting, a sting operation is an incalculably more risky and dangerous thing to do. A sting is based on deception and, therefore, it would attract the legal restrictions with far greater stringency and any infraction would invite more severe punishment. [Para 173] [1170-B-G] c 9.2. It can hardly be said that the sting programme telecast by NDTV was a media trial. Leaving aside some stray remarks or comments by the anchors or the interviewees, the programme showed some people trying .. to subvert the BMW trial and the state of the criminal administration of justice in the country (as perceived by ..! the TV channel and the interviewees). There was nothing in the programme to suggest that the accused in the BMW case were guilty or innocent. The programme was not about the accused but it was mainly about two lawyers representing the two sides and one of the , witnesses in the case. It indeed made serious allegations against the two lawyers. The allegations, insofar as 'RK' is concerned, stand established after strict scrutiny by the High Court and this Court. Insofar as 'IU' is concerned, I

,. - F though this Court held that his conduct did not constitute criminal contempt of court, nonetheless allegations against him too are established to the extent that his conduct has been found to be inappropriate for a Special Prosecutor. In regard to the witness the comments and G remarks made in the telecast were never cubject to a judicial scrutiny but those too are broadly in conformity with the materials on the court's record. Thus this Court is clearly of the view that the sting programme telecast ~ " by NDTV cannot be described as a piece of trial by - H

1051

....... media. [Para 175] [1171-E-H; 1172-A-B] A

Saibal Kumar Gupta & Ors. vs. B.K. Sen & Anr. 1961 3 SCR 460; In Re: P. C. Sen (1969) 2 SCR 649; Reliance Petrochemicals Ltd. vs. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. (1988) 4 SCC 592 and MP. B Lohia vs. State of WB. (2005) 2 SCC 686, referred to.

10.1. Sub-section (1) of section 3 provides immunity ~ ·to a publisher of any matter which interferes or tends to ~ interfere with, or obstructs or tends to obstruct the course of justice in any civil or criminal proceeding if he c reasonably believed that there was no proceeding

- ~ pending. Sub-section (3) deal with distribution of the publication as mentioned in sub-section (1) and provides immunity to the distributor if he reasonably believed that the publication did not contain any matter which interfered or tended to_ interfere with, or obstructed or D tended to obstruct the course of justice in any civil or criminal proceeding. The immunity provided under sub- section (3) is subject to the exceptions as stated in the proviso and explanations to the sub-section. This Court E fails to see any application of section 3(3) of the Contempt of Courts Act in the facts of this case. In this case there is no distribution of any publication made under sub- ~ section (1). Hence, neither sub-section (3) nor its proviso or explanation is attracted. NDTV did the sting, prepared F a programme on the basis of the sting materials and telecast it at a time when it fully knew that the BMW trial was going on. Hence, if the programme is held to be a matter which interfered or tended to interfere with, orobstructed or tended to obstruct the ~ue course of the G BMW case then the immunity under sub-section (1) will not be available to it and the telecast would clearly "~ constitute criminal contempt within the meaning of section 2 (c) (ii) & (iii) of the Act. The programme may have H

p. 1052 Copy page pinpoint

A any other faults or weaknesses but it certainly did not ~ ~ interfere with or obstruct the due course of the BMW trial. The programme telecast by NDTV showed to the people (the courts not excluded) that a conspiracy was afoot to undermine the BMW trial. What was shown was proved B to be substantially true and accurate. The programme was thus clearly intended to prevent the attempt to interfere with or obstruct the due course of the BMW trial. [Para 178] [1173-G-H; 1174-A-G] ... 10.2. Looking at the matter from a slightly different • c angle one can ask the simple question, what would have . been in greater public interest; to allow the attempt to

- suborn a witness, with the object to undermine a criminal trial, lie quietly behind the veil of sacrecy or to bring out the mischief in full public gaze? The answer is obvious. D The sting telecast by NDTV was indeed in larger public interest and it served an important public cause. [Para 179] [1174-H; 1175-A-B]

10.3. The omissions on the part of NDTV leave one E with the feeling that it was not sharing all the facts within its knowledge with the court. The disclosures before the Court do not appear to be completely open, full and frank. It would tell the court only so much as was necessary to secure the conviction of the proceedees- F wrong doers. There were some things that it would rather hold back from the court. This Court would have appreciated the TV channel to make a fuller disclosure before the High Court of all the facts within its knowledge. Despite all its faults the stings and the telecast of the sting programme by NDTV rendered valuable service to G the important public cause to protect and salvage the purity of the course of justice. This Court appreciates the professional initiative and courage shown by the young ~ ., reporter Poonam Agarwal and is impressed by the H

R.K, ANAND v. REGISTRAR, DELHI HIGH COURT 1053

.__,, painstaking investigation undertaken by NDTV to uncover the Shimla connection between 'K' and 'RK'. [Paras 193 and 194] [1181-A-D]

10.4. It is not the intention of this Court to lay down any reformist agenda for the media. Any attempt to control and regulate the media from outside is likely to cause more harm than good. The norms to regulate the

.. ,._ media and to raise its professional standards must come from inside. [Para 198] [1182-D]

11.1. This Court expresses concern on the falling c professional norms among the lawyers with considerable pain because it strongly feels that unless the trend is ~ immediately arrested and reversed, it will have very deleterious consequences for administration of justice in the country. No judicial system in a democratic society D can work satisfactorily unless it is supported by a bar that enjoys the unqualified trust and confidence of the people, that share the aspirations, hopes and the ideals of the people and whose members are monetarily accessible and affordable to the people. [Para 200] (1183-D-F] E 11.2. The Bar Council of India and the Bar Councils of the different states cannot escape their responsibility in this regard. Indeed the Bar council(s) have very ~- positively taken up a number of important issues concerning the administration of justice in the country. It has consistently fought to safeguard the interests of lawyers and it has done a lot of good work for their welfare. But on the issue of maintaining high professional standards and enforcing discipline among lawyers its performance hardly matches its achievements in other areas. It has not shown much concern even to see that .... lawyers should observe the statutory norms prescribed by the Council itself. It is the hope and trust of the Court that the Council will at least now sit up and pay proper H

1054 SUPREl\'.E COURT REPORTS [2009] 11 S.C.R.

_. A attention to the restoration of the high professional ~ standards among lawyers worthy of their position in the judicial system and in the society. [Para 203] [1184-C-E]

Pritam Pal vs. High Court of Madhya Pradesh 1993 Supp (1) SCC 529 and In Re: Sanjeev Datta (1995) 3 SCC B 619, affirmed.

Address of Shri M.C. Setalvad at the Diamond Jubilee c Celebrations of the Bangalore Bar Association, 1961, referred to. . 12.1. 'K's conduct in course of investigation and at the commencement of the trial; the fight that broke out -<{

- in the court premises betwe~n some policemen and a section of lawyers over his control and custody; the • D manner in which 'H', a key prosecution witness turned hostile in court; the curious way in which, another key witness for the prosecution appeared before the court and overriding the prosecution's protest, was allowed to depose only to resile from his earlier statement, all this and several other similar developments calculated to derail the trial would not have escaped the notice of the Chief Justice or the judges of the Court. But there is nothing to show that the High Court, as an institution, as a body took any step to thwart the nefarious activities -~ aimed at undermining the trial and to ensure that it proceeded on the proper course. As a result, everyone seemed to feel free to try to subvert the trial in any way they pleased. [Para 204] [1184-H; 1185-A-C]

12.2. This indifferent and passive attitude is not confined to the BMW trial or to the Delhi High Court alone. It is shared in greater or lesser degrees by many other High Courts. Every trial that fails due to external interference is a tragedy for the victim(s) of the crime. ~ ' More importantly, every frustrated trial defies and mocks the society based on the rule of law. Every subverted trial

1055 . ,... ...... )( leaves a scar on the criminal justice system. Repeated A scars make the system unrecognisable and it then loses the trust and confidence of the people. Every failed trial is also, in a manner of speaking, a negative comment on the State's High Court that is entrusted with the responsibility of superintendence, supervision and B control of the lower courts. It is, therefore, high time for the High Courts to assume a more pro-active role in such ,... matters. A step in time by the High Court can save a >- criminal case from going astray. An enquiry from the High Court Registry to the concerned quarters would send the c message that the High Court is watching; it means business and it will not tolerate any nonsense. Even this much would help a great deal in insulating a criminal case from outside interferences. In very few cases where more positive intervention is called for, if the matter is at the D ~ stage of investigation the High Court may call for status report and progress reports from police headquarter or the concerned Superintendent of Police. That alone would provide sufficient stimulation and pressure for a fair investigation of the case. In rare cases if the High Court is not satisfied by the status/progress reports it may even consider taking up the matter on the judicial side. Once the case reaches the stage of trial the High Court obviously has far wider powers. It can assign the -.( trial to some judicial officer who has made a reputation for independence and integrity. It may fix the venue of the trial at a proper place where the scope for any external interference may be eliminated or minimized. It can give effective directions for protection of witnesses and victims and their families. It can ensure a speedy conclusion of the trial by directing the trial court to take up the matter on a day-to-day basis. The High Court has " -1 got ample powers for all this both on the judicial and administrative sides. Article 227 of the Constitution of India that gives the High Court the authority of H

1056 SUPREME COURT REPORTS [2009] 11 S.C.R.

A superintendence over the subordinate courts has great ". ' dynamism and now is the time to add to it another dimension for monitoring and protection of criminal trials. Similarly Article 235 of ~lle Constitution that vests the High Court with. the powel' of control over sub-ordinate B courts should also include a positive element. It should not be confined only to posting, transfer and promotion of the officers of the subordinate judiciary. The power of control should also be exercised to protect them from _.. external interference that may sometime appear • c overpowering to them and to support them to discharge their duties fearlessly. [Para 205) [1185-D-H; 1186-A-H; 1187-A]

Case Law Reference :

D (2001) 3 sec 739 referred to Para 66 (2001) 7 sec 530 referred to Para 66 (2002) 4 sec 21 referred to Para 67 (2003) 1 sec 644 referred to Para 67 E (2001) s sec 735 referred to Para 67 (1976) 1 sec 975 referred to Para 67 (1993) 3 sec 151 referred to Para 71 F (1973) 1 sec 471 referred to Para 71 (1970) 2 sec 340 referred to Para 72 (1973) 1 sec 471 referred to Para 72 G (1982) 2 sec 258 referred to Para 72 (1985) Suppl sec 611 referred to Para 72 ). ' ' 1971 (1) All ER 678 referred to Para 72

1057

,.__ '" A 92 N C App. 246 referred to Para 74

(1995) 2 sec 584 relied on Para 82

(2004) 5 sec 26 relied on Para 82

(1998) 4 sec 409 referred to Para 138 B (2001) 8 sec 650 referred to Para 139 if- (2003) 2 sec 45 followed Para 141 ,.. (2004) 6 sec 311 referred to Para 142 c 1961 3 SCR 460 referred to Para 169

(1969) 2 SCR 649 referred to Para 169

(1988) 4 sec 592 referred to Para 169

(2005) 2 sec 686 referred to Para 169 D L

1993 Supp (1) sec 529 affirmed Para 201 (1995) 3 sec 619 affirmed Para 201

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal E No. 1393 of 2008.

From the Judgment & Order dated 21.08.2008 of the High ,,,. Court of Delhi at New Delhi in W.P. (Crl.) No. 796 of 2007. WITH F Crl. A. No. 1451 of 2008.

Gopal Subramaniam, ASG (A.C.), L. Nageswara Rao (A.C.), Altaf Ahmad, P.P. Rao, S.K. Agarwal, Harish N. Salve, Sanjay Jain, Balaji Subramanian, Anand Varma, Siddhartha G Dave, Deeptakirti Verma, Uday Gupta, Dharmendra Kumar ,. 4 Sinha, D.S. Chadha, Huzefa Ahmedi, S.A. Hashmi, Vikas Arora, Aman Khan, H.R. Khan Suhel, Arun K. Sinha, Rakesh Singh, Sumit Sinha, Vijay K. Sondhi, Varun Pareek, Kapil Arora, Wasin Beg, Subramonium Prasad for the Appearing H

1058 SUPREME COURT REPORTS [2009] 11 S.C.R.

YI ·<4 A Parties.