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

"From your aforesaid acts and conduct as discerned from the CDs and their transcripts, the affidavit 23rd July, 2007 B of Ms. Poonam Agarwal along with its annexures, we are, prima facie, satisfied that you Mr. R.K. Anand, Senior .i. Advocate, Mr. I. U. Khan, Senior Advocate, Mr. Sri Bhagwan, Advocate and Mr. Lovely have wilfully and deliberately tried to interfere with the due course of judicial proceedings and administration of justice by the courts. c Prima facie your acts and conduct JlS aforesaid was intended to subvert the administration of justice in th@ -- pending trial and in particular influence the outcome of the pending judicial proceedings. D "Accordingly, in exercise of the powers under Article 215 of the Constitution of India, we do hereby direct initiation of proceedings for contempt and issuance of notice to you, Mr. RK Anand, Senior Advocate, Mr. IU Khan, Senior Advocate, Mr. Shri Bhagwan, Advocate and E ~· Mr. Lovely to show cause as to why you should not be proceeded and punished for contempt of court as defined under Section 2(c) of the Contempt of Courts Act and -I under Article 215 of the Constitution of India. F "You are, therefore, required to file your reply showing cause, if any, against the action as proposed within four weeks.

"Noticees and contemnors shall be present in Court on the next date of hearing i.e. 24th September, 2007. G

... "Registry is directed to supply under mentioned material to the noticees:,

"(i) Copy of the order dated 7th August, 2007; H

1082 SUPREME COURT REPORTS [2009] 11 S.C.R.

"(ii) Affidavit of Ms. Poonam Agarwal dated 23rd July, 2007 ~ - together with annexures including the four copies of CDs filed along with the affidavit;

"(iii) Copies of the corrected transcripts filed on 6th August, 2007 in terms of the order dated 31st July, 2007; 13 "(iv) Copies of 6 CDs, including one edited and five unedited containing the original footage which were "-\ produced on 6th June, 2007. ... c "NDTV shall make available to the Registry sufficient number of copies of the CDs. and transcripts, which the Registry has to supply to the noticees as above."

43Copy pinpoint43. In response to the notice RK Anand, instead of filing a show cause, first filed a petition (on September 5, 2007) asking -- D one of the judges on the Bench, namely, Manmohan Sarin J. to recuse himself from the t.earing of the matter. The recusal petition and the review petition arising from it were rejected by the High Court by orders dated October 4 and November 29,

2007. We will be required to consider the unpleasant business of the recusal petition in greater detail at its proper place later in the judgment.

44Copy pinpoint44. While the matter of recusal was still pending a - grievance was made before the Court (on September 24) that along with the notice the proceedees were given only five CDs, though the number of CDs submitted by NDTV before the Court was six. Counsel for NDTV explained that the contents of two of the CDs were copied onto a single CD and hence, the number of CDs furnished to the noticees had come down to five. Counsel for the TV channel, however, undertook to provide fresh sets of six CDs to each of the noticees.

45Copy pinpoint45. On September 28, 2007 counsel for IU Khan was granted permission for viewing the six CDs submitted by NDTV on the courts record. H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1083 [AFTAB ALAM, J.]

46Copy pinpoint46. On October 1, IU Khan filed his affidavit in reply to the notice issued by the High Court and RK Anand and Bhagwan Shanna filed their affidavits on October 3, 2007 . • YET ANOTHER TELECAST:

47Copy pinpoint47. In the evening of December 3, 2007 NDTV telecast yet another programme from which it appeared that RK Anand and Kulkarni were by no means strangers to each other and ).. the association between the two went back several years in the past. Kulkarni, under the assumed name of Nishikant, had stayed in RK Anand's villa in Shimla for some time. There he also had a brush with the law and was arrested by the police in Una (HP). He had spent about forty five days in jail. From the HP police record it appeared that after coming on the scene in the BMW case he spent some time in hotels in Rajasthan and Gurgaon with the Nanda's paying the bills. •D

48Copy pinpoint48. This time RK Anand did not give any legal notice to NDTV seeking apology or claiming damages etc. but on the following day (December 4) he made a complaint about the telecast before the Court. The Court directed NDTV to produce E all the original materials concerning the telecast and its transcript. The Court further directed NDTV to file an affidavit giving details in regard to the collection of the materials and the making of the programme.

49Copy pinpoint49. In response to the High Court's direction one Deepak F Bajpai, Principal Correspondent with NDTV filed an affidavit on its behalf on December 11, 2007. In the affidavit it was stated that following a reference to HP in the conversation between RK Anand and Kulkarni in the second sting that took place in the car he went to Shimla and other places in Himachal G Pradesh and made extensive investigations there. Kulkarni was easily identified by the people there through his photograph. On making enquiries he came to learn that iin the year 2000 Kulkarni lived in RK Anand's villa called 'Schilthorn' in Shimla for about a year under the assumed name of Nishikant. While H

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A staying there he corresponded with an insurance company on behalf of RK Anand, using his letter-head, in connection with some insurance claim. Interestingly, there he also obtained a . driving licence describing himself as Nishikant Anand son of RK Anand. In Shimla and in other places in Himachal he also B duped a number of traders and businessmen. In Una he was arrested by Police on suspicion ar,j he had to spend about 45 days in jail. ....

50Copy pinpoint50. In reply to the affidavit filed by Deepak Bajpai, RK Anand filed an affidavit on January 10, 2008 in which he mostly c tried to point out the discrepancies in the sting recordings and contended that those were inadmissible in evidence.

PROCEEDINGS BEFORE THE HIGH COURT:

51Copy pinpoint51. After putting the recusal petition and the review application out of its way, the Court took up the hearing of the main matter that was held on many dates spread over a period of four months from December 4, 2007 to May 2, 2008. RK Anand appeared in person while IU Khan was represented through lawyers. Neither RK Anand nor IU Khar. (nor for that matter Bhagwan Sharma) tendered apology or expressed regret or contrition for their acts. IU Khan simply denied the charge of trying to interfere with the due course of judicial proceedings and administration of justice by the Courts. He took the stand that the expressions and words he is shown to have uttered in his meeting with Kulkarni were misinterpreted and a completely different meaning was given to them to suit the story fabricated by the TV channel for its programme.

52Copy pinpoint52. RK Anand on his part took a posture of defiant denial and tried to present himself as one who was more sinned against than a sinner. Before coming to his own defence he raised a number of issues concerning the role of the mass media in general and, in particular, in reporting about the BMW case. He contended that it was NDTV that was guilty of committing contempt of Court as the programmes telecast by

RK. ANAND v. REGISTRAR, DELHI HIGH COURT 1085 [AFTAB ALAM, J.]

it on May 30, 2007 (and on subsequent dates) clearly violated the sub-judice rule. On this issue, however, he was strangely ambivalent; he would not file an application before the Court for initiating contempt proceedings against the TV channel but 'invite' the Court to suo moto take appropriate action against it. He next submitted that the Court should rein in and control the mass media in reporting court matters, especially live cases pending adjudication before the court, arguing that media ... reports mould public opinion and thereby tend to goad the court to take a certain view of the matter that may not necessarily be the correct view. He also urged the Court to lay down the c law and guidelines in respect of stings or undercover operations by media. After an elaborate discussion the High Court rejected

- all the contentions of the contemnors based on these issues. Before us these issues were not raised on behalf of the appellants. But we must observe we fail to see how those D issues could be raised before the High Court as pleas in defence of a charge of criminal contempt for suborning a witness in a criminal trial. In the overall facts and circumstances of the case it was perfectly open to the High Court to deal with those issues as well. But it certainly did not lie with anyone E . facing the charge of criminal contempt to plead any alleged wrong doing by the TV channel as defence against the charge. If the telecast of the programme concerning a pending triC!I could be viewed as contempt of Court; or if the stings preceding it, in any way, violated the rights of the subjects of the stings those would be separate issues to be dealt with separately. In F case of the former the matter was between the Court and the TV channel and in the latter case it was open to the aggrieved person(s) to seek his remedies under the civil and/or criminal law. As a matter of fact RK Anand had given a legal notice to NDTV that he did not pursue. But neither the stings nor the G telecast would absolve the contemnors of the grave charge of suborning a witness in a criminal trial. We have, therefore, not the slightest doubt that the High Court was quite right in rejecting the contemnors' contentions based on those so called preliminary issues. H

1086 SUPREME COURT REPORTS [2009] 11 S.C.R.

53Copy pinpoint53. The contemnors then raised the issues of the nature of contempt jurisdiction and the onus and the standard of proof in a proceeding for criminal contempt. They further questioned • the admissibility of the sting recordings and contended that those recordings were even otherwise unreliable. In course of B hearing RK Anand tried to assail the integrity of the CDs furnished to him that were the reproductions from the original of the sting recordings. According to him, there were several anomalies and discrepancies in those recordings and (on January 29, 2008) he submitted before the Court that from the c CDs furnished to him he had got another CD of eight minutes duration prepared in order to highlight the tampering in the original recording. He sought the Court's permission to play his eight minute CD before it. On RK Anand's request the Court viewed the eight minute CD submitted by him on February 5,

2008. On February 27, 2008 the Court directed NDTV to file - 0 an affidavit giving its response to the CD prepared by RK Anand. As directed, NDTV filed the affidavit, sworn by one Dinesh Singh, on March 7, 2008. The affidavit explained all the objections raised by RK Anand in his eight minute CD. RK E Anand then filed a petition (Crl. M. 4012/2008) on March 31, 2008 for sending the original CDs for examination by the Central Forensic Science Laboratory.

54Copy pinpoint54. Besides this, RK Anand filed a number of interlocutory applications in course of the proceedings. Only three of those F are relevant for us having regard to the points raised in the hearing of the appeal. Those were: (I) Crl.M. No. 13782 of 2007 filed on December 3, 2007 for summoning Poonam Agarwal for cross-examination, (II) Crl.M. No. 4010 of 2008 filed on March 31, 2008 for initiating proceeding of perjury against G NDTV and Poonam Agarwal for deliberately making false statements on affidavits and fabricating evidence and (Ill) Crl.M. No. 4150 of 2008 filed on April 2, 2008 asking the Court to direct NDTV to place all the original microchips before it and to furnish him copies directly reproduced from those chips. H Apart from the above, RK Anand also filed before the High

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1087 [AFTAB ALAM, J.] ,. Court on March 31, 2008 an application in the nature of written arguments.

55Copy pinpoint55. On conclusion of oral submissions, on April 5, 2008 the Court, in presence of the three contemnors and their counsel, viewed all the original materi~ls of the sting operations submitted before it by NDTV. In the order passed on that date it recorded the proceeding of the day as under:

~ "The under mentioned recordings were played in court today in the presence of noticees, their counsel and the amicus curiae: c (i) Bag camera chip of conversation with Shri I. U. Khan on 28.4.2007;

(ii) Button camera DVD of conversation with Shri I. U. D .. Khan on 28.4.2007;

(iii) Button camera chip of conversation with Shri R. K. Anand on 6.⁵.2007;

(iv) Button camera chip of conversation with Shri R. K. E Anand on 8.⁵.2007;

(v) Button Camera Chip of conversation with Sri Bhagwan Sharma; Shri Lovely;

(vi) Telecast of second expose of 3.12.2007 at H.P. stay of Sunil Kulkarni

Mr. Huzefa Ahmedi for noticee Mr. I. U. Khan and Mr. R. K. Anand for himself and Sri Bhagwan offered their comments on the inferences to be drawn from the video recordings and the conversations therein.

Re-notify on 10th Ap~i), 2008 at 2.30 p.m. for conclusion of submissions on behalf of noticees."

56Copy pinpoint56. On the next date April 10, 2008 RK Anand concluded H

1088 SUPREME COURT REPORTS [2009] 11 S.C.R.

A his submission and the counsel for IU Khan filed reply to the written submission of amicus curiae. The matter came up once more before the Court on May 2, 2008 when the Court after giving some direction to NDTV and amicus curiae, reserved judgment in the case which was finally pronounced on August B 21, 2008. The Court held that the contempt jurisdiction of a Court is sui generis. The provisions of CrPC and the Evidence Act are not applicable to a proceeding of contempt. In dealing with contempt, the Court was entitled to devise its own ~ procedure but it must firmly adhere to the principles of natural c justice. The Court also found and held that the recOidings of the stings on the microchips and their reproduction on the CDs were completely genuine and unimpeachable and hence, those materials could not only be taken in evidence but fully relied on in support of the charge.

57Copy pinpoint57. The High Court rejected all the interlocutory } applications filed by RK Anand. As to the request to call Poonam Agarwal for cross-examination the Court observed that what transpired between RK Anand and Kulkarni in the sting meetings was there on the microchips and the CDs, copied E from those chips, for anyone to see and no statement by Poonam Agarwal in her cross-examination would alter that even slightly. The Court further recorded its finding that the microchips were not subjected to any tampering etc. and hence, rejected the petition for proceeding against NDTV for perjury. In regard ~

F to the other petitions the Court observed that those were moved in desperation and for exerting pressure on NDTV and Poonam Agarwal. The Court further observed that the original chips were in the safe custody of NDTV and there was no need for those chips to be deposited in Court. The contents of the G microchips were viewed by the proceedees and the CDs onto which the microchips were copied were handed over to them. The proceedees, therefore, had no cause for grievance and the ~

submission to send the microchips for forensic examination or for directing NDTV to submit the original microchips before the H High Court had no substance or merit.

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1089 [AFTAB ALAM, J.]

58Copy pinpoint58. In the end the Court held that the circumstances and the manner in which the meetings took place between the proceedees and Kulkarni and the exchanges that took place in those meetings as evidenced from the sting recordings fully established that both IU Khan and RK Anand were guilty of the charges framed against them. It accordingly convicted them for criminal contempt of Court and sentenced them as noticed above. ~ SOME OF THE ISSUES ARISING IN THE CASE: '

59Copy pinpoint59. These are broadly all the facts of the case. We have c set out the relevant facts in considerable detail since we do not see this case as simply a matter of culpability, or otherwise, of two individuals. Inherent in the facts of the case are a number of issues, some of which go to the very root of the administration of justice in the country and need to be D " addressed by this Court.

The two appeals give rise to the following questions:

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 + 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 the courts sub-ordinate to it for a G specified period as one of the punishments for criminal contempt of court?

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 H

1090 SUPREME COURT REPORTS [2009] 11 S.C.R.

A misdeeds?

Apart from the above, some other important issues arise from the facts of the case that need to be addressed by us. These are:

B 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 was going on before the court.

c 6. The declining professional standards among lawyers, and

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

60Copy pinpoint60. On these issues we were addressed at length by Mr. Altaf Ahmed, learned Senior Advocate appearing for RK Anand and Mr. P. P. Rao, learned Senior Advocate appearing on behalf of IU Khan. We also heard Mr. Harish Salve, learned Senior Advocate representing NDTV, which thoygh not a party in the appeals was, nevertheless issued notice by us. We also received valuable assistance from Mr. Gopal Subramanium, Senior Advocate and Mr. Nageshwar Rao, Senior advocate, the amici appointed by us having regard to the important issues involved in the case. We spent a full day viewing all the sting recordings, the recording of the programmes telecast by NDTV on May 30, 2007 and the eight minute CD prepared by RK Anand. Present at the viewing were all the counsel and one of the appellants, namely RK Anand.

RK ANAND'S APPEAL G

61Copy pinpoint61. Before adverting to anything else we must deal with the appeals proper. In order to judge the charge of criminal contempt against the appellants it needs to be seen what actually transpired between Kulkarni and the two appellants in H the stings to which they were subjected. And for that we shall

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1091 . [AFTAB ALAM, J.]

have to examine the raw sting recordings. A

62Copy pinpoint62. Taking the case of RK Anand first we go to the sting done on him on May 6, 2007 when Kulkarni met him in the VIP lounge at the domestic terminal of IGI Airport, Delhi. Here, it needs to be recalled that as Kulkarni was behind the camera 8 (which was fixed to his shirt front) he is not seen in the picture. What one sees and hears are the pictures of whomsoever he is engaged with and their voices. The video begins with Kulkarni approaching the guard at the entrance of the airport building and asking him about the public address system from where he could contact RK Anand who was inside the airport building in the VIP lounge. The following are the extracts from the transcript of the sting recording of the meeting that would give an idea how the meeting between the two took place and what was said in the meeting. D THE EXCHANGE BETWEEN KULKARNI & RK ANAND: Kulkarni: Excuse me, apka announcement kaha hai? Someone :Kis liye? Kulkarni Mr. RK Anand, yaha hai, ex Member of E Parliament, mujhe unse milna hai, urgent.. .. I think woh udhar hi hai. KULKARNI ON THE PUBLIC TELEPHONE AT THE NRPOITT F Kulkarni Hello Haanji boss, bahar hi hoo ... gate No.1 gate No.² ke beech mein, Ha, VIP gate ok ... I'll be there. Ya, ya, ya, ya, ok. " KULKARNI HANGS UP AND PROCEEDS TOWARDS THE G VIP GATE Kulkarni Poonam, keep your mobile on! Ok! and keep it with your recorder! Ok! Ok! I'm leaving for the VIP gate ... he is waiting there .. ok ... ok H

1092 SUPREME COURT REPORTS [2009] 11 S.C.R.

A Anand Kya badmashi karte rehte ho? Kulkarni Main aapko wohi time bata raha tha ke mujhe sab kuch pata tha ye ..isi liye hamne ... but lekin nobody believed me ... (Anand laughing)

B Anand Acha Tu mere saath badmashi karni band kar de ... tu banda ban ja. '. Kulkarni Aap banaoge to banoonga. """· 1 Anand Agar nahi banega to main maroonga ., c (Kulkarni : cuts in)

Kulkarni Ab kya strategy banani hai batao. Kulkarni Maine message bheja tha khan saab ke pass ... aapko shayad mi/a hoga ·Anand Haan ... mil gaya tha

Anand Main kya bola? (Laughs) E Anand Acha Jet me come back tomorrow, meri flight ayegi koi saare nau (9.30) baje.. tum ghar mein xxxx. Kulkarni Han that will be better because I dont want ..... F

Anand Haan ab .... ab mujhe batao ... Anand Ab batao mereko ...... G Kulkarni Mujhe bola dhai crore doonga ... aap batao mereko. Anand Hain? Kulkarni Dhai crore ..... H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1093 [AFTAB ALAM, J.] Anand Tu paanch crore maang le ..... A Kulkarni Main paanch crore maang feta hoo ... Anand Tere ko cross examine maine zaroor karna hai! Kulkarni Aur doosri baat .... cross examine aap karoge B mereko? (Anand laughs).

Kulkarni Jab bhi mereko zaroorat padegi main ghar pe aa jaunga, mujhe pata hai. C Anand Chalo let me come back tomorrow evening, you come and meet me in the night ... in the farm .... don't meet me outside. D

Kulkarni Nahi aaj jaroori tha is/iye main mi/a ... nahi to main .. / avoid it.. Anand Nahi farm pe milna. E Kulkarni Aur doosri baat...yeh inhe bhi jante ho ... yeh dekho its Commando ... ok Anand Ya, Tomorrow evening, bye! The second sting took place on May 8, 2007 in the car. F · Extracts from the transcript of that meeting are as follows. Kulkarni kyon office mein bhi aur ghar pe bhi mcft millo ... yeh sare log mere peeche... F Anand yahan kyon milte ho phir? Kulkarni Yahan koi nahi dekhta ... acha abhi kya karna hai batao. H

1094 SUPREME COURT REPORTS [2009] 11 S.C.R.

A Anand Ab dekho tum xxxx tum xx .paise xxxxx ,. Kulkarni Main .... yeh sab main kaise bo/oonga ... ab yeh sab drama yeh kar rahe hai na ... drama kar rehe hai poora hi ... ab dekho jo hua so hua .... B Anand Baat to tumhare samne karonga, peeche to karongaa nahi.... Kulkarni Vo to mainbhi janta hoo 1

c Anand Samne baat hogi tumhare Kulkarni Kai kya mere ko nikaal rahe ho kya ... 311 se? Anand Nikal doo? 0 Kulkarni Nahi.. nahi mat nikalna xxx Anand Nahi Nikalta Kulkarni Nahi Nahi mat nikalna.. withdraw karva lo na aap ...jab main aapke saath hoo, jo E marzi karne ke liye tyaar hoo. to yeh kaye ke /iye High Court main laga diya aapne .. aur mere upar aapko itna bhi bharosa hahi hai kya ..... theek hai gussa ho jata hoo main xxxx.. F Anand Nahi Nahi Kulkarni Lekin aana hai..... depose karna hai. Anand Ab usse kya baat karni hai ... batao, Reasonable baat karo. G Kulkarni Aap decide karo. Anand Tum decide karo. Anand Woh to you decide." H Kulkarni· 30,000 crores ... CBI ne 2300 crores .. big

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1095 [AFTAB ALAM, J.]

investment ... 84 crores A Anand Vo choddo Kulkarni Kyon .. kyon Chodo .. kyon chodo? .. Aap .. main aapka beta hoo. bolo. Anand Tumhara bheja kharaab ho gaya 8 hai ... (Laughs) Kulkarni Kharaab ho gaya hai na abhi .... Anand Haa bheja kharaab ho raha hai. c Anand So you have not taken the summon? Kulkarni Na ... not al all. Jab tak aap nahin bataoge, Khan sahib nahi bataenge tab main D summon kaise Ju. Anand How did Ramesh Gupta inform him that you have taken the summons?

E Kulkarni Ab maine kya karna hai.. maine summon liya nahi hai.. aap mere upar to bharosa kar sakte ho na? Anand Poora, mujhe to poora... F Kulkarni Poora vishwas hai na? To maine summon nahi Jiya ha ...

Anand I'm out of touch ... I'm not in trial, I'm in High G Court so I don't know ... anyhow.. what statement you are supposed to make.. we will decide about it... First of all, meet the bugger and talk to him. And be reasonable. Don't be unreasonable like what you told H

1096 SUPREME COURT REPORTS (2009] 11 S.C.R.

A me that day. Don't be silly/ " Kulkarni Kitna Mango? Anand Chodo na ... bat samjha kar yaar ... aadmi ko zindagi main aur bhi bade kaam aate B hai... aise nahi karte .. that fellow is sick you know.. that man..jo kya naam hai uska xxx Kulkarni Hmm. i

c Anand ; Talk to me around seven forty five. Kulkarni Ok Anand Ok Kulkarni Sir.. D Anand Then we'll decide about it.

Kulkarni Hmm. Paune aath (8) baje I'll get back to E you.. agar paune aath (8) baje aap bu/ate ho to main aaju-baaju ke area main hi rehta hoo.. Kanth ko bu/a /ena bas.. meri ek di/ ki bhadaas nik/ane do bas ... do minute. Anand Aaju baju mein hi rehna, main tumhe bu/a F /unga. Kulkarni /sme bachana hai na 11sko Sanjeev ko? Anand xx Kabhi kisika bura mat kiya karo. Panga Jene ka kaya faydaa.! G Kulkarni Theek hai. Kulkarni Nahi,.Jekin kaise kya karna hai vo aapne aur khan sahab ne decided karna hai.. after all it was merely an accidentxxx. H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1097 [AFTAB ALAM, J.] . :.. Anand And he remained in jail for 8-9 A months ... yaar. Kulkarni ·To main .. to mere ko bhool jayoge aa,'J .. pentalis (45) din. Anand Kaise. B

Anand You were enjoying.. Kulkarni Kya,. .. c Anand You were enjoying. Not that you were in a problem .. uski to dikkat hai bechare kixxxx

. Kulkarni Nahi Nahi.. I'm also not interested. Aisi baat nahi hai.. D Anand Kabhi kisi ka bura nahi kara karo .• aise bha/a karne se hi aadmi to acha rehta hai.. kisi ko jhoota nahi phasana chahiye.. nika/ dena chahiye ... Kulkarni Chalo theek hai. Aap ke kehne par main kuch bhi karne ke liye tayaar hoo .. aur inki saari galat information hai. Anand Aage jake bhi bhagwan ko jawaab dena hota hai yaar.. aage bhi jawaab .... kya fayda kame .. xxx F Anand Chhuraane se phir bhi ache rehta hai.. phasane seto (abuses) bura hi kaam hota hai ... main to kisi main interested hi nahi hoo .. kisiko phasane main ... G Kulkarni nahi vo to mujhe bhi pata hai ... Anand In logo ne Narsiml1a Rao ko phasaya .. acha thodi hua tah vo .. vaapis chhuraya tha humne .. kya fayda hua.. H

1098 SUPREME COURT REPORTS [2009] 11 S.C.R.

~ A Kulkarni Main aajo baajo main paune aath baje.. aap mere ko bu/a /ena Anand Give me a call at seven forty five .. Kulkarni Ji.. B Anand On my office number. xxxxxxxxxxxxxxxxxxxxxxxxxx i Kulkarni Phir mere khayaal se 311 udega nahi na, blood sample ka udega? c Anand Hain? Anand Kyon udaye..jab tumhare pass paise bante hai to main kyon udayo? .. Kulkarni Jab main aapke saath hoo.. D Anand Ha.. to phir kya hai..

Kulkarni Koi neta log tha .. acha.. seven forty five .. E Anand Pakki gal..

63Copy pinpoint63. It is quite possible that Kulkarni had somehow found out RK Anand's programme and RK Anand did not know that he was coming to meet him at the airport but there can be no doubt that he allowed him to come to him and the meeting took place with his consent. From his opening remark and the general tenor of the conversation it is evident that they were quite free and familiar with each other. ryve may recall here their seven years old Shimla connection!). Now, when Kulkarni asks him what strategy was to be made it could mean only one thing. He did not give any direct reply to that question but he did not ask Kulkarni to shut up either. When Kulkarni said that he was offered two and half crores he indeed mockingly suggested that he should ask for five crores but here also what was sought to be ridiculed was the sum quoted and not the prospects for

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1099 [AFTAB ALAM, J.] .:.. negotiation. As a matter of fact for further negotiation door was kept wide open with the express invitation for further meeting albeit at a discreet place and time.

64Copy pinpoint64. The meeting at the airport might or might not have been scheduled but there can be no doubt that the meeting in the car was fixed from before. Otherwise, it was impossible for Kulkarni to enter the car having equipped himself with a hidden camera and the recording device from before in anticipation ~ that he would get the chance to get into the car outside Delhi High Court. The purpose of the meeting is manifest by the conversation between the two. It is also evident that before c parting another meeting was fixed in the evening for which Kulkarni was to call up RK Anand at his office. As arranged, Kulkarni did telephone at RK Anand's office but the meeting did not take place there or with RK Anand. The meeting took place at the South Extension Market where first Bhagwan D

" Sharma and then Lovely came to meet.Kulkarni. Both claimed that they were sent to meet him by RK Anand. There is a very long transcript of the sting on the third meeting, first between · Kulkarni and Bhagwan Sharma (who stayed with Kulkarni till Lovely came there) and then between Kulkarni and Lovely. The E recording of the third sting further makes it evident that Kulkarni was trying (at least for the purpose of the sting) to sell himself off in favour of the accused Sanjeev Nanda for a price that he -# left to be fixed by RK Anand. However we see no reason to advert to the third sting, first because RK Anand was not personally present in the meeting and secondly and more importantly because the charge is fully established against him on the basis of the two stings done on him personally. This is of course, provided the recordings of the two stings truly and faithfully represent what actually transpired in those two meetings . • Submissions on behalf of RK Anand:

65Copy pinpoint65. Mr. Altaf Ahmed, learned senior counsel appearing for RK Anand, submitted that the High Court founded the H

1100 SUPREME COURT REPORTS [2009] 11 S.C.R.

A appellant's conviction under the Contempt of Courts Act on "'"" facts that were electronically recorded, even without having the authenticity of the recording properly proved. The High Court simply assumed the sting recordings to be correct and proceeded to pronounce the appellant guilty of criminal B contempt on that basis. Hence, the genuineness and accuracy of what appeared in the sting recordings always remained questionable. Mr. Ahmed submitted that the judgment and order coming under appeal was quite untenable for the simple reason i that the integrity of its factual foundation was never free from c doubt. Learned counsel further submitted that the procedure followed by the High Court was not fair and the appellant was denied a fair trial. He also submitted that the High Court arrived at its conclusions without taking into consideration the appellant's defence and that was yet another reason for setting aside the impugned judgment and order. D J Nature of Contempt Proceeding:

66Copy pinpoint66. Mr. Ahmed submitted that under the Contempt of Courts Act the High Court exercised extra-ordinary jurisdiction. E A proceeding under the Act was quasi criminal in nature and it demanded the same standard of proof as required in a criminal trial to hold a person guilty of criminal contempt. In support of the proposition he cited two decisions of this Court, one in Mritunjoy Das Vs. Sayed Hasibur Rahman, (2001) 3 SCC F 739 and the other in Chotu Ram vs. Urvashi Gulati and Ors., (2001) 7 SCC 530. In both the decisions the Court observed that the common English phrase, "he who asserts must prove" was equally applicable to contempt proceedings. In both the decisions the Court cited a passage from a decision by Lord Denning in Re Bramblevale Ltd., (ALL ER pp. 1063H and G 10648) on the nature and standard of evidence required in a proceeding of contempt.

"A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1101 [AFTAB ALAM, J.] :.. proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence. Where there are two equally consistent possibilities open to the court, it is not right to hold that the offence is proved beyond reasonable doubt."

67Copy pinpoint67. Seeking to buttress the point learned Counsel also referred to some more decisions of this Court in: (i) Anil Rattan Sarkar vs. Hirak Ghosh, (2002) 4 SCC 21 (ii) Bijay Kumar c Mahanty vs. Jadu @ Ram Chandra Sahoo, (2003) 1 SCC 644 (iii) J. R. Parashar, Advocate vs. Prashant Bhushan, Advocate (2001) 6 SCC 735 and (iv) S. Abdul Karim vs. NK Prakash and others (1976) 1 SCC 975 D

68Copy pinpoint68. There cannot be any disagreement with the proposition advanced by Mr. Ahmed but as noted above if the sting recordings are true and correct no more evidence is required to see that RK Anand was trying to suborn a witness, that is, a particularly vile way of interfering with due course of a judicial E proceeding especially if indulged in by a lawyer of lung standing.

Admissibilitv of electronicall~ recorded & stored materials in evidence:

69Copy pinpoint69. This leads us to consider the main thrust of Mr. F Ahmed's submissions in regard to the integrity, authenticity, and reliability of the electronic materials on the basis of which the appellants were held guilty of committing contempt of Court. Learned counsel submitted that the way the High Court proceeded in the matter it was impossible to say with any G certainty that the microchips that finally came before it for viewing were the same microchips that were used in the spy cameras for the stings or those WE:re not in any way manipulated or interfered with before production in court. He further submitted that the admissibility in evidence of electronic H

1102 SUPREME COURT REPORTS (2009] 11 S.C.R.

A recordings or Electronically Stored Information (ESI) was subject to stringent conditions but the High Court completely disregarded those conditions and freely used the sting recordings as the basis for the appellants' conviction.

70Copy pinpoint70. In support of the submissions Mr. Ahmed submitted a 8 voluminous compilation of decisions (of this Court and of some foreign courts) and some technical literature and articles on ESI. We propose to take note of only those decisions/articles that Mr. Ahmed specifically referred to us and that have some relevance to the case in hand. c

71Copy pinpoint71. Two of the decisions of this Court referred by Mr. Ahmed, one in SA Khan vs. Bhajan Lal, (1993) 3 SCC 151 and the other in Quamarul Islam vs. S. K. Kanta, (1973) 1 SCC 471 relate to newspaper reports. In these two decisions it was held that news paper report is hearsay secondary evidence which cannot be relied on unless proved by evidence aliunde. Even absence of denial of statement appearing in newspaper by its maker would not absolve the obligation of the applicant of proving the statement. These two decisions have evidently no relevance to the case before us.

72Copy pinpoint72. In regard to the admissibility in evidence of tape recorded statements Mr. Ahmed cited a number of decisions of this Court in (i) N. Shri Rama Reddy vs. V. Giri (1970) 2 SCC 340 (ii) R. M. Malkani vs. State of Maharashtra (1973) F 1 SCC 471 (iii) Mahabir Prasad Verma vs. Dr. Surinder Kaur (1982) 2 SCC 258 and (iv) Ram Singh vs. Col. Ram Singh (1985) Suppl SCC 611. He also referred to two foreign decisions on the point, one in (i) R vs. Stevenson, 1971 (1) All ER 678, and the other of the Supreme Court, Appellate G Division of the State of New York in The People of State of New York vs. Francis Bell (taken down from the internet). We need here refer to the last among the decisions of this Court and the English decisions in R vs. Stevenson. In Ram Singh, a case arising from an election trial the Court examined the H question of admissibility of tape recorded conversations under

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1103 ' [AFTAB ALAM, J.]

the relevant provisions of the Indian Evidence Act. The Court A lay down that a tape recorded statement would be admissible in evidence subject to the following conditions '1'

"Thus, so far as this Court is concerned the conditions for admissibility of a tape-recorded statement B may be stated as follows:

(1) The voice of the speaker must be duly identified by the maker of the record or by other who recognise his voice. In other words, it manifestly follows as a logical· corollary that in the first condition for the admissibility of c such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. D (2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence-direct or circumstantial.

(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out E otherwise it may render the said statement out of context and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of Evidence Act. F

(5) The recorded cassette must be carefully sealed and kept in a safe or official custody.

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances." G

" tape 73.recorded In R vs. Stevenson too the Court was dealing with a conversation in a criminal case. In regard to the admissibility of the tape recorded conversation the court observed as follows: H

1104 SUPREME COURT REPORTS [2009] 11 S.C.R.

A "Just as in the case of photographs in a criminal trial the original un-retouched negatives have to be retained in strict custody so in my views should original tape recordings. However one looks at it, whether, as counsel for the Crown ... argues, all the prosecution have to do on this issue is to B establish a prima facie case, or whether, as counsel for the defendant Stevenson in particular, and counsel for the defendant Hulse joining with him, argues for the defence, the burden of establishing an original document is a criminal burden of proof beyond reasonable doubt, in the " c circumstances of this case it seems to me that the prosecution have failed to establish this particular type of evidence. Once the original is impugned and sufficient details as to certain peculiarities in the proffered evidence have been examined in court, and once the situation is reached that it is likely that the proffered evidence is not the original-is not the primary and the best evidence -that ,I

seems to me to create a situation in which, whether on reasonable doubt or whether on a prima facie basis, the judge is left with no alternative but to reject the evidence. In this case on the facts as I have heard them such doubt does arise. That means that no one can hear this evidence and it is inadmissible."

(emphasis added) i,..

74Copy pinpoint74. Mr. Ahmed also referred to another decision by a US F Court on the admissibility of video tapes. This is by the Court of Appeal of the State of North Carolina in State of North Carolina vs. Michael Odell Sibley (downloaded from the internet). In this decision there is a reference to an earlier decision of the same court in State vs. Cannon. 92 N C App. G 246 etc. in which the conditions for admissibility of video tape in evidence were laid down as under:

"The prerequisite that the offer or lay a proper foundation • for the videotape can be met by: ( 1) testimony that the motion picture or videotape fairly and accurately illustrates

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1105 [AFTAB ALAM, J.]

the events filmed (illustrative purpose); (2) "proper testimony concerning the checking and operation of the video camera and the chain of evidence concerning the videotape ... "; (3) testimony that "the photographs introduced at trial were the same as those [ the witness] had inspected immediately after processing," (substantive purposes); or (4) "testimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area 'photographed."

75Copy pinpoint75. On the different issues germane to the admissibility of c ESI Mr. Ahmed also referred to a decision of the District Court of Maryland, United State in Civil Action No. PWG-06-1893, Jack R. Lorraine and Beverly Mack vs. Markel American Insurance Company (downloaded from the internet). Mr. Ahmed also cited before us an article captioned 'The Sedona D Conference ® Commentary on ES/ Evidence & Admissibility': A Project of The Sedona Conference Working Group on Electronic Document Retention & Production (WGI)®, published in Sedona Conference Journal, Fall 2008. The article deals extensively with the different questions relating to E admissibility in evidence of ESI and one of its basic premises is that the mere fact that the information was created and stored within a computer system would not make that information ~ reliable and authentic, F

76Copy pinpoint76. He also invited our attention to an article appearing in The Indian Police Journal, July-September 2004 issue under the caption "Detection Technique of Video Tape Alteration on the Basis of Sound Track Analysis". From this article Mr. Ahmed read out the following passages: G

"The acceptance of recorded evidence in the court of law depends solely on the establishment of its integrity. In other words, the recorded evidence should be free from intentional alteration. Generally, examination of recorded H

1106 SUPREME COURT REPORTS [2009] 11 S.C.R.

A. evidence for establishing the integrity/authenticity is performed to find out whether it is a one-time recording or an edited version or copy of the original."

And further: B "Alteration on an audio recording can be of Addition, Deletion, Obscuration, Transformation and Synthesis. In video recordings the alteration may be with the intention to change either on the audio track or on the video track. In both the ways there is always disturbance on both the c track. Alterations in a video track are usually made by adding or removing some frames, by rearranging few frames, by distorting certain frames and lastly by introducing artificially generated frames. Alteration on a video recording" D

77Copy pinpoint77. In light of the decisions and articles cited above Mr Ahmed contended that the High Court freely used the copies of the sting recordings and the transcripts of those recordings made and supplied by NDTV without caring to first establish the authenticity of the sting recordings. Learned counsel submitted that the use of the CDs of the sting recordings and their transcripts by the High Court was in complete violation of the conditions laid down by this Court in Ram Singh.

78Copy pinpoint78. Learned counsel pointed out that at the threshold of the proceeding, started suo moto, the High Court, instead of taking the microchips used for the sting operations in its custody directed NDTV 'to preserve the original material including the CDsNideo' pertaining to the sting operations and to submit to the Court copies and transcripts made from those chips. Thus G the microchips remained all along with NDTV, allowing it all the time and opportunity to make any alterations and changes in ., the sting recordings (even assuming there were such recording in the first place!) to suit its purpose. The petition filed by RK Anand for directing NDTV to submit the original microchips before the Court and to give him copies made in Court directly

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1107 [AFTAB ALAM, J.] ) from those chips remained lying on the record unattended till it was rejected by the final judgment and order passed in the case. Another petition requesting to send the microchips for forensic examination also met with the same fate.

79Copy pinpoint79. Mr. Ahmed further submitted that the procedure followed by the High Court was so flawed that even the number of chips used for the different sting operations remained indeterminate. The trial court order dated June 1, 2007 referred to three chips produced on behalf of NDTV. The written statement of Poonam Agarwal made before the High Court on June 6, 2007 mentioned four chips and finally their number c became five in her affidavit dated October 1, 2007.

80Copy pinpoint80. He further submitted that the audio and the video recording on the basis of which the NDTV telecast was based and that was produced before the High Court was done by D ,I. Kulkarni and it was he who was the maker of those materials. The Court never got Kulkarni brought before it either for the formal proof of the electronic materials or for cross-examination by the contemnors. The finding of the High Court was thus based on materials of which neither the authenticity was proved nor the veracity of which was tested by cross-examination. He further submitted that the affidavit of the NDTV reporter (Poonam Agarwal) doesn't cure this basic ' flaw in the proceedings. The recordings were not done by the TV channel's reporter: her participation in the process was only to the extent that she 'wired' Kulkarni and received from him the recorded materials. What she received from Kulkarni was also not identified, much less formally proved before the High Court. According to Mr. Ahmed, therefore, the finding of the High Court was wholly untenable and fit to be set aside. G SUBMISSIONS CONSIDERED: " 81. The legal principles advanced by Mr. Ahmed are unexceptionable but the way he tried to apply those principles to the present case appear to us to be completely misplaced. H

1108 SUPREME COURT REPORTS [2009] 11 S.C.R.

82Copy pinpoint82. Here, we must make it clear that we are dealing with 1

CORRECTNESS OF STING RECORDINGS NEVER E DISPUTED OR DOUBTED:

83Copy pinpoint83. Keeping this in mind when we turn to the facts of this case we find that the correctness of the sting recordings was never in doubt or dispute. RK Anand never said that on the given dates and time he never met Kulkarni at the airport lounge or in the car and what was shown in the sting recordings was fabricated and false. He did not say that though he met Kulkarni on the two occasions, they were talking about the weather or the stock market or the latest film hits and the utterances put in their mouth were fabricated and doctored. Where then is the question of proof of authenticity and integrity of the recordings? It may be recalled that both in the eight o'clock and nine o'clock programmes, RK Anand was interviewed by the programme anchors and the live exchange was integrated into the programmes. Let us see what his first response to the telecast H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1109 [AFTAB ALAM, J.]

• was when the anchor of the eight o'clock programme brought him on the show. A

[Following are the extracts from the exchange between the anchor and RK Anand]

LIVE EXCHANGE BElWEEN TV ANCHOR & RK ANAND: B

"India 60 Minutes (BMW Special) 8 PM" t Segment 2

Sonia: We have RK Anand, on line with us. Mr. RK Anand, c you have watched that report, what's your defence?

RK Anand: My defence, what can be the defence you tell me. See, he just came to me and he was making a joke that should I make a demand for Rs. 2. 5 crores and I said what D !.. the hell are you talking, you would want any amount you want ten, I meant this jokingly I'd not serious manner. I thought what the hell you want and I never invited him I was going out he must have come there to meet me and I don't know what kind of story if being made my NDTV on this channel. E xxxxxxxxxxxxxxx Sonia: But Mr. Anand if you have a w.itt~ess who has come ~ up, you have. a witness of the prosecution who has come up to you he has claimed that he wants this much money and F you may've laughed it off but you then met him again, you've again discussed details of the case, surely that is not appropriate behaviour for a defence lawyer with a prosecution witness. G RK Anand: See, did I ask him to sit in the car? Did I ask him to come to my office? Did I ever give him a call to come to me? ).- We never called. I think it's a trap being laid by the NDTV people and sending the Kulkarni to me. It's nothing that we have done anything. H

1110 SUPREME COURT REPORTS [2009] 11 S.C.R.

Sonia: But Mr Anand, let me come back to the central point once again why should a defence lawyer and a prosecution witness be meeting and discussing the case even if it's at the behest of the witness, surely as a senior defence lawyer you 8 should've thrown him out and not entertained this conversation?

RK Anand: Just listen to me now; somebody comes up and talks to you, what do you do, you throw him out? c

Sonia: But you met him again in your car?

RK Anand: HE was saying 2.⁵ and I said make a demand for

D 5. I was making a joke of him. Could you not understand the language in which I said it? I was laughing at that time. Listen to me, he is a blackmailer, he is trying to blackmail at your instance.

E Sonia: Mr Anand, if you were joking the questions that we are raismg as we've said many times, we have no evidence that money changed hands or didn't change hands, what we are showing you is what was caught on camera. Money being F discussed whether it was jokingly or not jokingly has to be investigated and two meetings between you and the key prosecution witness, that seems to be what is currently on camera, what actually happened has to be investigated. But how do you justify these two meetings? G RK Anand: You are tying again to ask questions after questions. I am saying that you know when he said about 2.⁵ crores, I laughed at him and said bloody you are joking. I was smiling at him; he was making a fool of himself. H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1111 [AFTAB ALAM, J.]

~ A Next is his response in course of the second telecast ·" immediately following the first one:

[Following are the extracts from the exchange between the anchor and RK Anand] B

30th May - 9 PM BMW Special

Barkha Dutt: Mr RK Anand if you can hear me, by now you have watched over two times on NDTV. The camera doesn't C lie sir, u were meeting the prosecution's witness not once but twice, sir, how was this appropriate, how can you defend this sir?

Anand: Barkha, we should talk in the right perspective. One must understand that this witness is a blackmailer, we have been fighting in the High Court even today that this witness should not be examined because he has been blackmailing us for the last so many years and when I was going out of Delhi, he appeared suddenly at the airport, and starts talking to me and say should I make it 2.⁵ crores. I laughed at him and what the hell are you talking, u demand 5 crores, I'll cross- examine you. This is my first reaction to that one.

Barkha: But Mr Anand if he's a blackmailer, why did you meet him a second time in your own car a second time outside the F Delhi High Court, if he's a blackinailer?

Anand: I have not met him in my car I'm telling you, this is not correct.

Barkha: Did u meet him a second time? G Anand: No I did not meet him

Barkha: Sir our investigation reveals that you met him at the Delhi airport and then again a second time conversation between you and him takes place inside a car, it may not have H

1112 SUPREME COURT REPORTS [2009] 11 S.C.R.

A been your car. There are two separate meetings for sure sir. •.

Anand: There is no second meeting, I've never met him. I only met him once and that he came. I was going out of Delhi, and .- somebody comes and talks to me and asks for 2.⁵ crores and I laughed at him that what the hell are u talking. U want 2.⁵ 8 crores and just see what I've said. I'll cross-examine you. He said will you cross-examine me, I said yes /'II cross-examine you. And then we go to the HG and tell HG that he is a blackmailer and we will not examine him.

c Barkha: Anand, when Sunil Kulkarni met u at the airport, how correct is it for the defence lawyer to be toughing (sic. laughing) when Suni/ Kulkarni raises the question of Rs 2.⁵ 0 crores. In response u laugh and say for that money I will cross-examine you. Even as a joke is it appropriate?

Anand: It is not a joke I'm saying. If somebody comes before your vision suddenly when u are going out of Delhi, and say I will demand 2. 5 crores, I say what 2. 5 crores, make a E demand of 5 crores I will cross examine you in the court of law

xxxxxxxxxxxxxxx. F Barkha: U we (sic. have) flatly denied meeting Sunil Kulkarni, is that correct?

Anand: I've not met him a second time.

XXXXXXXXlOOOOOO

G Barkha: u think its appropriate for you to asking the prosecution witness to come and met you at your house sir?

Anand: why what is the difficulty in meeting anyone, I don't understand? H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1113 [AFTAB ALAM, J.]

Barkha: So according to u RK Anand ..... A

Anand: ..... so long u do not influence them ...

84Copy pinpoint84. As may be seen from the above, the first response of 8 RK Anand is to try to explain away (quite unconvincingly to anyone who might have viewed the recorded programme!) what he said when Kulkarni mentioned the amount of rupees 2.⁵ crores. He admitted that Kulkarni 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, he impliedly admitted meeting Kulkarni for the second time in the car simply stating that he didn't ask Kulkarni 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 Kulkarni at the airport lounge, RK Anand completely denied meeting him in the car or anywhere else for the second time. However, · as we shall see presently the denial was quite false.

85Copy pinpoint85. We have gone through the transcripts of the exchange between the two anchors and RK Anand a number of times and we have also viewed the progran:ime recorded on CDs. To us, RK Anand, 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 any false accusations. F

86Copy pinpoint86. It is noted above that immediately after the telecast RK Anand sent a legal notice to NDTV threatening legal actions against them and demanding a huge sum as compensation. NDTV gave its reply to the legal notice and thereafter RK Anand G didn't pursue the matter any further.

1. Meeting with Kulkarni in car admitted:

87Copy pinpoint87. RI< Anand filed his reply affidavit in response to the notice issued by the Court on October 3, 2007. In paragraph H

1114 SUPREME COURT f'.EPORTS [2009] 11 S.C.R.

A B of the affidavit he denied, "each and every part of alleged tape conversation and CDs produced before the Court in response to order passed by this Court in relation to telecast of BMW exposing thereby denying each part of the conversation". He further stated that the whole tape was B fabricated, distorted, edited in such a manner to tarnish his image and to suit and project the TV channel's story in particular manner.

In paragraph 'O' ·of the affidavit, however, he stated as follows: c "O. That the Deponent was awfully busy in Court on 8.⁵.2007. He finished his arguments in a bride burning case at 5.45 p.m. While he was sitting in his car, Sunil Kulkarni made entry in the car. The Deponent was unwilling D to talk and to allow him to sit in the car. The opening lines would make it clear that the Deponent nevef wanted to talk to Sunil Kulkarni. "

"Kulkarni:Kyon office mein, ghar pe bhi mat milo .... E Anand:Yahan Kyon milto ho phir."

"After reaching office, the deponent had meeting with clients i.e. Sanjeev Nanda and his father. Lovely had come to meet Mr. Suresh Nanda. All the colleagues of the F deponent and Nanda's were apprised of development in the car about Sunil Kulkarni. After some time, the deponent left the office. The deponent was informed that Lovely offered to record the conversation of Kulkarni so as to trap him. The deponent was informed later that not only Lovely G was successful in recording the demand of Sunil Kulkarni but Shri Bhagwan also recorded another conversation subsequent to that of Lovely. The said conversation is reproduced below."

88Copy pinpoint88. This is followed by a transcript of some alleged conversation between Shri Bhagwan and Kulkarni.

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1115 [AFTAB ALAM, J.] .~

89Copy pinpoint89. In the above quoted paragraph there is plain and clear admission in regard to the second meeting taking place in the car between RK Anand and Kulkarni 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 Kulkarni B in the car. As to the later part of the paragraph regarding 'the alleged sting on Sunil Kulkarni by Shri Bhagwan, we don't have ' the slightest doubt that it was an afterthought and concoction. Had there been such a sting recording RK Anand was duty bound to inform the High Court about it when the Criminal c Revision against the trial court order summoning Kulkarni as court witness was heard on several dates in May 2007 before . the telecast of the programme by NDTV. He was equally duty bound to inform the trial court about Kulkarni's approaches and the sting done on him by Shri Bhagwan when Kulkarni was examined before it on May 14, 17 & 29.

Referring to sting recordings to show innocence:

90Copy pinpoint90. 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. For example, in paragraph S of the affidavit it is stated as follows: .4

"S. That in fact, this alleged witness Sunil Kulkarni had earlier attempted to meet the Respondent in his office. It is a matter of chance that Shri Amod Kanth the then Director General of Police, Arunachal Pradesh was present with the Respondent in his office. Sunil Kulkarni was rebuffed, rebuked and was asked to leave Respondent's office in the presence of Shri Kanth. G

l> Thereafter, Sunil Kulkarni was physically thrown out from the office of Respondent. Shri Amodh Kanth also rebuked him for his conduct.

This fact stands corroborated by the transcript in which it " H

1116 SUPREME COURT REPORTS [2009] 11 S.C.R.

A has been stated by Sunil Kulkarni as under:-

"Kul: mujhe koi to message nahi mil raha tha. Phir panga yeh ho raha ki when u told me I don't want to discuss B (mujhe koi message naf-ii mil raha tha phir panga yeh ho raha ki when u told me I c!on't want to discuss."

"Kul:"beech main aap par gussa ho gaya tha.

(Beech me aap par gussa ho gaya tha, aap ka koi c neta log hain, ek aaddmi jisne mere ko aisa kheencha tha).

Kul: vo aapka ek neta log hain ek Neta isne mereko aisa Kheecha tha D (Ek neta tha usne mere kko aisa kheencha tha, aisa kheencha tha, bola sahib ne milne ko manakar diya, bigar gaya, kaha bhag jao, bhag jao, aisa bola)."

"From the above transcript, it is clear that the Respondent E had no intention at any time to meet the said witness. He was thrown out physically from the office of Respondent. He was told not to meet the Respondent as they are not interested in any one."

F Similarly in paragraph Z10 it is stated as follows:

"Z10 ....... The deponent has never tried or intended to influence this witness so as to interfere in the course of justice. On the other hand, deponent have rebuked and rebuffed him & told him not to ask for any money. Rather G the witness was advised to 'speak the truth and not to falsely implicate the Nanda's. Respondent has gone to the extent of telling him to have fear from God since everyone is answerable for his acts to God ........ "

H And again in paragraph 17 it is stated as follows:

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1117 [AFTAB ALAM, J.]

"17 ............. The deponent had no intention to discuss the A subject matter of the case with Sunil Kulkarni. The . discussion was started by Sunil Kulkarni b{alleging that;

Kul "kal kya mereko nikaal rahe ho kya ... 311 se." B Anand: Karoon ... r Kulkarni· nahi

KulkarniNo, nahi nikalna c Kulkarni nahi, nahi, mat nikalna .. withdraw karva lo na aap. Jab Main aapke saath ho jo marzi karne ke liya tyaar ho to yeh kay ke liye High Court main lagwa diya aapne ... mere upar aapko itna bhi bharosa nahin hain kya .. theek hain gussa ho jata hoon main .... D

Kulkarni lekin aana hain depose karma hain."

"The aforesaid transcript of Sunil Kulkarni would clearly indicate that he himself was suggesting that he is prepared E to make any kind of statement. It is not that the deponent wanted him to make a statement in a particular manner. It is not that the deponent was trying to influence the witness. + The witness had already taken a decision to make a statement in a particular manner norat the instance of the depo_nent." F

Further in Paragraph 23

"23 ......... The below noted conversation would substantiate the stand of the deponent. G

"Kul: kitna mango.

Anand: chodo ... baat samjha kar. .. aadmi ki zindagi main aur Shi bade kaam aate hain. Aisa nahi karte" H

1118 SUPREME COURT REPORTS [2009] 11 S.C.R.

A 'The whole conversation about reasonableness was in the form of an admonishment and advice so that no money is demanded. If the deponent wanted to deal with the witness or influence the witness or negotiate the terms of settlement, at that point of time, the deponent could have B discussed since the demand of 2.⁵ crores was already allegedly made by the witness but categorically telling the witness to not to talk about the money and reminding of the relations would negate the discussion about the money part in the whole transcript. The reference to the utterances c by Sunil Kulkarni.

Kul: "isme bachana hain usko sanjeev ko ..

Anand: kabhi kisika bura mat kiya karo.

D Anand: Kabhi kisi ka bura nahin l<ara karo .. aisa bhala karne se hi Aadmi ko acha xx .... kisii ko jhoota nahi phasana chahiya .... nikal der1a chahiye ...

Anand: aage jake bhi bhagwan ko jawaab dena hota hain yaar ... aage bhi jawaab ... kya fayda karne ... xxx ... E Anand: Bachane se phir bhi ache rehta hain ... phasane me To bura kaam hota hain ... main to kisi main interested hi nahin hoon."

First of all ... " F Further in paragraph 24

"24. That during the course of conversation and in view of the past acquaintance Sunil Kulkarni had with the G deponent, number of irrelevant statements were made by the witness. One such part was in relation to Amodh Kanth. The important conversation which came to light during the course of the talks was;

"Uska koi taluk nahin. .phir bhi yeh amod kanth ke H

j ( v. 1119 .'- R.K. ANAND REGISTRAR, DELHI HIGH COURT [AFTAB ALAM, J.] ' peeche kyon pada hua K.K.Paul." A

--< 91. He thus accepts the entire recordings in both the stings. For, it is absurd even to suggest that the sting recordings are true and correct if those are seen as supporting his explanations (which, in any event, are quite un-statable!) but are B otherwise false and fabricated.

92Copy pinpoint92. In a rearguard action Mr. Altaf Ahmed took us one by y one through all the paragraphs in different affidavits filed by RK Anand in which the sting recordings were described as false, fabricated, doctored, morphed and manipulated. But those c allegations are simply not compatible with the other statements in his affidavits as noted above and his responses in regard to the sting operations at different times. The denials in the affidavits are nothing more than ornamental pleas. \ D ~ 93. We also see no substance in the anomalies and alleged inter correlation in the sting recordings as pointed out on behalf of RK Anand on the basis of the eight minute CD which he got prepared from the materials suppllecfto him by the Court. Along with the other materials we also viewed eight E minute CD produced by RK Anand. In the CD an attempt is made to show that the frames in the sting recordings some times jumped out of the sequence number alld such other

- ... technical flaws. The objections raised by RK Anand were fully explained by the affidavit filed by Dinesh Singh on behalf of NDTV. In the affidavit it was explained

"80 ... the alleged discrepancies in the CDs produced F

before the Court and supplied to the appellants occurred primarily due to conversion of the recorded material from . chips into CDs, via the intermediary medium of tapes.. Shri Singh further explains the gap occurring at certain points G

of the recording as due to displacement of the ear-plus connector i.e. the device uses to attach the button lens and the microphone with the recording device." H

1120 SUPREME COURT REPORTS [2009) 11 S.C.R.

94Copy pinpoint94. Mr. Altaf Ahmed also made the grievance that the High Court failed to consider his defence. According to him NDTV had conceived the sting operation as pre-empted measure against Shri Anand, who was consulted in his professional capacity in connection with a matter in which NDTV in collusion B with one Mrs. Sumana Sain and IRS officer was indulging in massive tax evasion. The materials in support of the allegations and in particular RK Anand's connection with the matter are so vague and tenuous that we don't consider it worthwhile to go into that question. c 95. On a careful consideration of the materials on record we don't have the slightest doubt that the authenticity and integrity of the sting recordings was never disputed or doubted by RK Anand. As noted above 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 Anand 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 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 Anand for contempt of court is proper legal and valid calling for no interference.

IU KHAN'S APPEAL G

96Copy pinpoint96. The sting on IU Khan was done on April 28, 2007 in -,' one of the lawyers' chambers at the Patiala House court premises. The video CD begins by showing Poonam Agarwal fixing the recording device and the button camera on Kulkarni's H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1121 [AFTAB ALAM, J.] ... person sitting inside the car. Then Kulkarni and Deepak Verma A together enter the Patiala House. They move around in the court ' premises for a long time till just before the lunch recess they are able to find IU Khan sitting in someone else's chamber. The chamber seems to be quite crowded with people all the time coming and going away. The first exchange of greetings B between IU khan and Kulkarni as he, accompanied with Deepak Verma, enters into the chamber is not audible. But then r IU Khan is heard describing Kulkarni, in a general sort of introduction to those present there, as 'the prime witness in the BMW case', 'star witness' 'a very public spirited and devoted c man' etc. Kulkarni starts chatting with him about the summons issued to him by the court in the BMW case. In the meanwhile someone else comes into the chamber. IU Khan greets him loudly and starts talking to him. After a while, on Kulkarni's request, both IU Khan and Kulkarni come out of the chamber D }. and some conversation between the two takes place outside the chamber. After the meeting is over Kulkarni and Deepak Verma together return back. As the recording devices carried by them are still on the conversation that takes place between the two is naturally recorded. Kulkarni does not allow Deepak E Verma to go directly to the TV Channel's vehicle parked outside the Court premises where Poonam Agarwal would be waiting for their return, saying that they are bound to be followed. Instead, they take an auto-rickshaw and go to Pargati Maidan -1 .... at a short distance from the court. From there they contact Poonam Agarwal on mobile phone, who goes there and joins F them and de-wires Kulkarni.

Only partial transcript of the sting recording submitted to Court: G

97Copy pinpoint97. The recording of this sting operation is more than an --; hour long. But the transcript of this sting recording submitted to the Court by NDTV is confined only to the exchange between IU Khan and Kulkarni. In the absence of the full transcript it becomes difficult and cumbersome to see what transpired H

1122 SUPREME COURT REPORTS [2009] 11 S.C.R.

A between Kulkarni and Deepak Verma immediately before and after the meeting with their subject. In our view that part of the sting recording was also highly relevant and important for judging the true import of the exchange that took place between Kulkarni and IU Khan. We are surprised that the High Court did B not notice this big omission in the transcript of the first sting and we record our disapproval of NDTV in withholding the full transcript of the sting recording. ;

Full transcript/recording of IU Khan's interview by TV C channel on May 31, 2007 not on record:

98Copy pinpoint98. Further, it is noted above that in the morning of May 31, 2007 one Anusuya Roy, a reporter from NDTV had interviewed IU Khan at his residence for his response to the programme telecast the previous evening. The interview was telecast live from around 8 to 8.23 in the morning. But that was the only time the full interview was shown and later only one * statement made by IU Khan in course of the interview was incorporated in the programmes telecast in the evening of May

31. What is more significant, however, is that NDTV did not present before the High Court either the full recording of the interview or its transcript-and what we find on the High Court record is only the statement that was used in the programmes telecast on May 31, 2007 and, that runs as follows;

"IU Khan: I am not denying anything at all, I am not denying _. F it but the interpretation, meaning and inferences which were drawn are totally wrong, unfounded and totally inconsonance (sic) with the actual record that I am producing before you. Kulkarni also has used the word 'Bade Saheb' means the big officer, high officer of the G police headquarter. In his deposition in the court also· he had used the word Bade Saheb twice and when the explanation was sought, he explained that by bade saheb ~ I mean senior officer of the police headquarter, it was unconnected to Mr. R.K. Anand as it has been wrongly, H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1123 [AFTAB ALAM, J.]

mischievously and calculatedly projected by you people." A

Confusion in submitting copies of sting recording to High Court:

99Copy pinpoint99. Yet again, there is serious confusion about the production of the recording of the first sting on the microchip of the spy camera carried by Kulkarni before the High Court. It is noted above that on June 1, 2007 three chips and five CDs r were produced before the trial court. Those were returned back because in the meanwhile the proceeding was initiated by the High Court. On June 2, 2007 six CDs were submitted before the High Court. On that date Poonam Agarwal stated before the Registrar that one of the CDs (marked '1 ')was edited and the other five CDs (marked '2' to '6') were unedited. She also said that NDTV news channel did not have any other material in connection with the sting operation in question. On June 6, D f. 2007 she submitted the transcripts of the recordings. In the statement made on that date she said that she had earlier submitted six CDs. Those CDs were duplicated from four spy camera chips which were recorded on different occasions. After copies of the CDs were given to the proceedees as directed in the order dated August 7, 2007 issuing show cause notices to them, a grievance was made before the Court that they were supplied only five CDs, though the number of CDs ~ submitted before the High Court was six. It was then explained on behalf of NDTV that the contents of two CDs were copied onto a single one and thus the number of CDs was reduced from six to five. It was of course stated that a fresh set of six CDs each would again be supplied to all the three proceedees. The High Court apparently accepted the explanation given by NDTV (High Court order dated 24.9.2007). But the lapse was far more serious as would appear from the affidavit dated ~ October 1, 2007 filed by Poonam Agarwal to explain the position. In her affidavit she stated that in the first sting (on IU Khan) two spy cameras were used, one carried by Kulkarni and the other by Deepak Verma. The recording of the first sting was H

1124 SUPREME COURT REPORTS [2009] 11 S.C.R.

A thus on two microchips one in Kulkarni's camera and other in the bag camera of Deepak Verma. In the other three stings there was a single spy camera carried by Kulkarni, on each occasion having a fresh microchips. Thus for all the four stings a total number of five chips were used. The contents of the B microchip in Kulkarni's spy camera used for the first sting (on IU Khan) were copied onto magnetic tape and then to a CD. That microchip was then reformatted for other uses. The other four microchips were available in their original and undisturbed 1 condition. For preparation of the programme telecast on May . c 30 the contents of all the five chips, including the one that was reformatted, were used. However, the five unedited CDs (marked '2' to '6') that were submitted before the High Court on June 2, 2007 were copies from the four microchips that had remained in their original and undisturbed condition. The sixth CD (marked as '1') was the copy of the programme that was telecast. The recording on the microchip in Kulkami's camera used for the first sting operation, though available on • magnetic tape and CD was not submitted to the High Court because the microchip itself was reformatted. She further stated that while supplying CDs to the noticees in pursuance to the direction of the Court, "a mistake occurred in that, one of the CDs given to the noticees (sic) was not taken from the "four chips but the CD which is a copy of the formatted chip containing the recording done by Mr. Kulkarni". She further ~ stated that a CD made from the mother tape of the formatted chip was being filed along with the affidavit before the High Court.

100Copy pinpoint100. What follows from the affidavit may be summarised as follows; (I) the conduct of NDTV before the High Court in a G vary serious proceeding was quite cavalier and causal. (II) 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. (Ill) The ---1 materials given to the proceedees along with show cause H notice were not exactly the same as submitted before the High

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1125 [AFTAB ALAM, J.]

Court. (IV) The explanation in the form of Poonam Agarwal's A affidavit came on October 1, 2007 on the same day when IU Khan filed his reply affidavit in response to the show cause notice.

101Copy pinpoint101. In those circumstances it was not wrong for IU Khan B to state in paragraphs 14 and 15 of his memorandum of appeal as under:

"14 .... This finding is again against the material on record as the original chip of the button camera carried by Mr. Kulkarni was formatted by the NDTV in violation of the direction issued by the Hon'ble Court. This part of the conversation is not available in the transcript of the bag camera."

"15. Because the CD of the button camera firstly cannot be relied upon as it was filed after the reply was filed by the appellant on 1.10.2007 ... "

Lapses have no effect on RK Anand's case or even on case of IU Khan:' E

102Copy pinpoint102. We have recounted here some of the noticeable lapses committed by NDTV in the proceedings that were overlooked by the High Court. Having regard to seriousness of the proceeding we should have wished that it was free from such lapses. But it needs to be made absolutely clear that the F irregularities pointed out above were in regard to the first sting concerning IU Khan. These in no way affect RK Anand or alter his position. The discussions and findings recorded above in respect of RK Anand thus remains completely unaffected by the mistakes pointed out here. G

103Copy pinpoint103. Further, having regard to the, defence taken by IU Khan the aforementioned lapses do not have any material affeet on his case either. But before proceeding to examine his defence and how the High Court dealt with it, it would be H

1126 SUPREME COURT REPORTS [2009] 11 S.C.R.

A necessary to see what conversation is shown to have taken place in the sting recordings between Kulkarni and IU Khan.

THE EXCHANGE BElWEEN KULKARNI & IU KHAN:

Khan: Meet Kulkarni, he is the prime witness in the BMW B case. He is our star witness and he is a very public spirited and devoted man and incidentally, he was in Delhi on the way/ day when this unfortunate incident happened. He was going 1 on foot to the Nizamuddin Railway Station.

c A BIT FOLLOWS THAT IS HARD TO UNDERSTAND Kulkarni: Mein barbad ho gaya, sir. Khan How? Kulkarni: This particular thing is only you and myself are D aware of. But I am not aware of anything, anything. ~ I don't want to go again with that particular guy. I lost my mother, I don't know where my father is. I'm just roaming around for 8 years. ~b yeh mujhe kyun bu/aya gaya hai? E Khan Ab court ne (coughs) we dropped you .... court ne (unclear) Kulkarni: No, no you .... / think the state told you to drop, right, if I'm not wrong? F Khan These were the instructions I received from the Headquarters and that's why I got the SHO statement recorded that "on the instruction of the SHO and the ACP, such and such witness has been dropped". Then how can I make a statement? G My clients are Delhi Police. Whatever instructions they will give, I will act upon it. I was very keen to f examine you. . Kulkarni: Ya, I know that because I still remember, still remember. H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1127 [AFTAB ALAM, J.] ·- Khan lnhone mera haath dabaya xxxbhi dabaya, khoob A dabaya, maine kaha main kya karoo, agar • individual client ho to samjha bhi lo, department hai. Khan Bade Sahab se mile? Nahi mile? Mulakat hi nahi hooyi? B

Kulkarni: Ab yeh kya jhanjhat aur? ( Khan Nahi nahi kuch nahi hoga, ab High Court mein ... unhone petition file kar di hai ki Kulkarniki statement xxxxxxx. c Kulkarni: To woh record karenge nahi na? h Khan Nahi. Kulkarni: Pakka? D + Khan Tum mauj karo ... hum ... humne drop kar diya, court ko kya ... who is he is to say that it should be recorded. Someone : Investigation to court kar sakta hai, pur mode· of · investigation to determine nahi kar sakta. E Khan Exactly, they cannot decide the mode of investigation } SOMEBODY ENTERS THE CHAMBER F Kulkarni: Khan Sahab, ek minute, chafe jata hoo, mein sham to ghar pe xxxxaa jaon ga. Khan Ha, ha who to ana hi hai, ghar pe nahi xxx Kulkarni: Who to abhi di/Ii mein aya hoo to aya hoo, ek G second. l Khan In Delhi, you're our guest. Kulkarni: lnka nahi! Khan Na inke nahi. H

1128 SUPREME COURT REPORTS [2009] 11 S.C.R.

A Khan Aapka aur hamara personal effort/rapport (not • clear) hai Kulkarni: Who to alag hi baat hai. .. Khan Aur, bhai yaar thanda peeke jana. B Kulkarni: Nahi thanda nahi, bus ek second khali, kyonki wahi xxxx THEY COME OUT OF THE CHAMBER AND TALK

Kulkarni: Summons Bombay cha/la gaya thaa, ab waha se c reject ho ke ayaa hua hai. Ab loon ken na loon? Baad me mere ko raat ko ghar pe (Mr. Khan cuts in) Khan Tum mere ko miloge kab, yeh batao?

D Kulkarni: Aap batao kyonki mere ko .... SHO se meri baat hui hai. Aap usko ... (Mr. Khan cuts in) Khan Tum thehre kahan ho? Kulkarni: Main to thehre hoo out of Delhi. E Khan Out of Delhi? Kulkarni: Out of Delhi, Haan. Khan Sham ko keh baje aaoge? Kulkarni: Aaj nahi aaonga ... mein kal zarror ... shamko. "' F Sunday aaram reheat hai aur.. .. ' Khan Sunday ko kis waqt aaoge? Kulkarni: Aap batao mere ko. G Khan Aapko suit kaunsa time karta hai? Kulkarni: Kai bhi. • Khan Saat aur aath ke darmiyan? Kulkarni: Hann, theek hai. H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT . 1129 [AFTAB ALAM, J.] Khan Kalxxx A Kulkarni : Lekin kisi ko bhi batao mat. Khan Nahi ji, sawal hi paida nahi hota yaar. Kulkarni: Na, na. B Khan : Aur tumhare /iye bahut badiya scotch rakhi hui haixxxx Kulkarni: Scotch..laughs ..,. . Khan Bahut badiya xxxx c Kulkarni: Acha baki sab khairyat sahib?

-- Khan Sab khairyat xx.Khuda ka xxx Kulkarni: Chalo, kal mulaqat hogi D Kulkarni: Ok, main ... (Mr.Khan cuts in) Khan Saat aur aath ke danniyan Kulkarni : Main, vese meri K K Paul se baat hui hai, lekin maine abhi tak nahin bola hoo I have not received summons at all. Woh mere ko bata E dena. Khan Kai tum aajao Kulkarni: Main ... Huh? Woh hamare dona ki baat hogi, F Khan : Theek hai.

104Copy pinpoint104. After this Kulkarni and Deepak Verma return back. As walking along they naturally talk about the sting done by them together. G

105Copy pinpoint105. As we shall see presently much depends on what IU Khan meant when he asked Kulkarni whether he had met 'Bade Saheb'.

106Copy pinpoint106. As noted above IU Khan does not deny the H

1130· SUPREME COURT REPORTS [2009) 11 S.C.R.

A conversation that is shown to have taken place between him and Kulkarni. In his first 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 B and wrong. When he said 'Bade Saheb' he meant some high officer in the police headquarter. He also said that was the way Kulkarni 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 c Kulkarni to clarify he explained that Bade Saheb meant a superior officer of the police headquarter. The words Bade - Saheb, according to IU Khan, did not in any way refer to RK Anand.

107Copy pinpoint107. And this was broadly his defence before the High - D Court.

High Court dealing with IU Khan Defence:

108Copy pinpoint108. The High Court did not accept his defence. The High Court held that there was great familiarity between IU Khan, E Kulkarni and RK Anand. In this regard it observed as follows;

"We have noted above that there are several references to Mr. Khan in the conversations of Mr. Kulkarni with Mr. Anand. We cannot overlook these since they suggest a F tacit arrangement or at least an understanding between Mr. Khan, Mr. Anand and Mr. Kulkarni".

109Copy pinpoint109. In coming to this conclusion, as is evident from the above quoted observation the High Court relied a great deal G upon the conversations between Kulkarni and RK Anand (vide paragraphs 196, 197 & 198 of the High Court Judgment).

110Copy pinpoint110. The High Court further held that when IU Khan asked Kulkarni whether he had met 'Bade Saheb' he only meant RK Anand. It rejected IU Khan's stand that what he meant by the H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1131 [AFTAB ALAM, J.] expression was a senior police officer. The High Court observed A that no material was produced on behalf of IU Khan in support of the statement that in course of his deposition befc~e the trial court Kulkarni used the expression 'Bade Saheb' to mean a senior police officer. It further observed that in the sting operation, just before the conclusion of the meeting, Kulkarni B had said that he had met K.K. Paul (who was then the Police Commissioner). The passage referred to is as follows; f "Kulkarni: Main, vese meri K K Paul se baat hui hai, lekin maine abhi tak nahin bola hoo I have not received summons at all. Wah mere ko bata dena". c

111Copy pinpoint111. This, according to the High Court, clearly showed that Kulkarni referred to the Police Commissioner by his name and not by the expression 'Bade Saheb'. High Court further observed that for Kulkarni 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 Kulkarni used to meet the senior police officers. On the other hand there was sufficient evidence to show that he was very familiar with both IU·Khan and RK Anand, had easy access to both of them and used to frequently meet them. The High Court then took up Kulkarni's affidavit that supported IU Khan's plea that by the expression he had meant some senior police officer and not RK Anand and rejected it on a number + of grounds. F

112Copy pinpoint112. After giving the reasons for rejecting the stand of IU Khan the High Court held that Bade Saheb was none else then RK Anand observing as follows;

"190. On the other hand, when we watched the recording G of the events of 28th April, 2007 from the button camera, ) we noted that towards the end of the recording, Mr. Deepak Verina asked Mr. Kulkarni ab0ut the identity of Bade Saheb and Mr. Kulkarni responded by saying that it is Mr. Anand. There is no suggestion that this part of the H

1132 SUPREME COURT REPORTS [2009] 11 S.C.R.

A video recording is doctored or morpheq ..... .".

(emphasis added)

113Copy pinpoint113. The High Court further observed that as IU Khan was fully aware that Kulkarni, a prosecution witness was on highly B familiar terms with a senior defence lawyer RK Anand, he was obliged to inform the prosecution about it and by not doing so he clearly failed in his duty as a prosecutor who was expected to be fair not only to his client but also to the Court. His conduct

c was, therefore, plainly unbecoming of a prosecutor. The High Court then proceeded to consider whether the conduct of IU -- Khan amounted to a criminal contempt of court. In this regard the Court refers to the conversation between IU Khan and Kulkarni taking place outside the chamber in which a second meeting was fixed up for the following evening with IU Khan D giving Kulkarni the inducement of good scotch whisky. From the exchange between the two the court inferred that the extent of familiarity between the two was rather more than normal. IU Khan was aware that Kulkarni was on equally, if not more familiar, terms with RK Anand. Coupled with this his failure to inform the prosecution or the Court about the connection between Kulkarni .and RK Anand had the potential and the tendency to interfere or obstruct the natural course of the BMW case and certainly the administration of justice, particularly when Mr. Khan himself described Mr. Kulkarni as the prime witness in the BMW case and the 'star witness of the prosecution'. Finally the court held

"207. Under these circumstances, we are left with no option but to hold that Mr. Khan was quite familiar with Mr. Kulkarni; Mr. Khan was aware that Mr. Kulkarni was in touch with Mr. Anand; Mr. ~\han was not unwilling to advise Mr. Kulkarni or at least discuss with him the issue of accepting the summons sent by the trial court to Mr. Kulkarni. We also have no option but to hold that Mr. Khan very seriously erred in not bringing important facts touching upon the H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1133 [AFTAB ALAM, J.] )... BMW case to his client's notice, the prosecution. The error is so grave as to make it a deliberate omission that may have a very serious impact on the case of the prosecution in the Trial court. Consequently, we have no option but to hold Mr. Khan criminally liable, beyond a shadow of doubt, for actually interfering, if not tending to interfere with the due course of the judicial proceeding, that is the BMW case, and thereby actually interfering, if not tending to interfere with the administration of justice in any other manner". ·, Submissions on behalf of IU Khan: c

114Copy pinpoint114. Mr. P. P. Rao, learned Senior Advocate appearing for IU Khan mainly submitted that even if the sting recording is accepted as true, on the basis of the exchange that took place between his client and Kulkarni it cannot be said that he acted in a way or colluded in any action aimed at interfering or tending D • to interfere with the prosecution of the accused in the BMW case or interfering or tending to interfere with or obstructing or tending to obstruct the administration of justice in any other manner. He further submitted that the findings of the High Court were based on assumptions that were not only completely unfounded but in respect of which the appellant was given no opportunity to defend himself. The High Court held the appellant guilty of committing criminal contempt of court referring to and relying upon certain alleged facts and circumstances that did • not form part ofthe notice and in regard to which he was given no opportunity to defend himself. Mr. Rao submitted that along with the notice· issued by the High Court the appellant was not given all the materials concerning his case and he was thus handicapped in submitting his show cause. He further submitted that the High Court erroneously placed the case of his client at par with RK Anand and convicted him because RK Anand was found guilty even though the two cases were • completely different. Mr. Rao was also highly critical of the TV channel. He questioned the propriety of the sting operation and the telecast of the sting programme concerning a pending trial H

1134 SUPREME COURT REPORTS [2009] 11 S.C.R.

A and involving a court witness without any information to, much less permission by the trial court or even the High Court or its Chief Justice. Mr. Rao submitted that when Kulkarni first approached Poonam Agarwal she thought it imperative to first obtain the approval of her superiors before embarking upon the B project, but it did not occur to anyone, including her superiors in the TV channel to obtain the permission or to even inform at least the Chief Justice of the Delhi High Court before taking up the operation fraught with highly sinister implications. Mr. Rao also assailed the judgment coming under appeal on a c number of other grounds. SUBMISSIONS CONSIDERED:

115Copy pinpoint115. We have carefully gone through all the materials concerning IU Khan. We have perused the transcript of the D exchange between Kulkarni and IU Khan 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.

IU Khan's conduct quite improper:

116Copy pinpoint116. We have not the slightest doubt that the exchange between Kulkarni and IU Khan 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. We are not prepared to accept for a moment that on seeing Kulkarni suddenly after several years in the company of a 'burly stranger' (Deepak Verma) IU Khan 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 Kulkarni in order to mollify him. The plea 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

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1135 [AFTAB ALAM, J.]

clients) and at no point the situation appears to be out of his control. As a matter of fact. we feel constrained to say that the plea is not quite worthy of a lawyer of IU Khan's standing and we should have much appreciated had he simply taken the plea of an error of discretion on his part. B

117Copy pinpoint117. Coming back to the exchange between IU Khan and Kulkarni, we accept 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. We grant everything that can be said in favour of IU Khan. The meeting took place without c any prior appointment from him. Kulkarni was able to reach him, unlike RK Anand, without his permission or consent. IU Khan did not seem to be overly enthused at the appearance of Kulkarni. Accosted by Kulkarni, he spoke to him out of civility and mostly responded only to his questions and comments. D ~ There were others present in the chamber with whom he was equally engaged in conversation. He also greeted someone else who came into the chamber far more cheerfully than Kulkarni. But the undeniable fact remains that he was talking to him all the time about the BMW trial and the related E proceedings. Instead of simply telling him to receive the summons and appear before the court as directed, IU Khan gave reassurances to Kulkarni 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 F prosecution witness) the court was no one to ask for his statement. The part of the exchange that took place outside the chamber was worse. Inside the chamber, at one stage, IU Khan seemed even dismissive of Kulkarni but on coming out he appeared quite anxious to fix up another meeting with him at G his residence giving promising good Scotch whisky as • inducement. IU Khan would be the first person to deny any friendship or even a long acquaintanceship with Kulkarni. The only common factor between them was the BMW case in which one was the prosecutor and the other was a prosecution H

1136 SUPREME COURT REPORTS [2009] 11 S.C.R.

A 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 such degree of familiarity with the witness of a criminal trial that he might be prosecuting and would not indulge with him into the B kind of exchange as admittedly took place between IU Khan and Kulkarni. We are also not prepared to believe that in his conversation with Kulkarni, IU Khan did not mean what he was saying and he was simply trying to somehow get rid of Kulkarni. The video of the sting recordings leaves no room for doubt that IU Khan was freely discussing the proceeding of BMW case c with Kulkarni and was not at all averse to another meeting with him rather he was looking forward to it. We, therefore, fully endorse the High Court finding that the eonduct of IU Khan was inappropriate for a lawyer in general and a prosecutor in particular. D CRIMINAL CONTEMPT???

118Copy pinpoint118. But there is a wide gap between professional misconduct and criminal contempt of court and we now proceed E to examine whether on the basis of materials on record the charge of criminal contempt of court can be sustained against IU Khan.

119Copy pinpoint119. The High Court held that there was an extraordinary ;.. degree of familiarity between IU Khan, Kulkarni and RK Anand F and each of them knew that the other two were equally familiar with each other. So far as BMW trial is concerned Kulkarni was a link between IU Khan and RK Anand. IU Khan, by reason of his familiarity both with RK Anand and Kulkarni would also know about the game that was afoot for the subversion of the trial. G 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, guilty of actually interfering with .. due course of judicial proceeding, in the BMW case.

120Copy pinpoint120. In the two sting recordings concerning RK Anand H

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1137 [AFTAB ALAM, J.] _._ there are ample references to IU Khan to suggest a high degree of familiarity between the three. But in the sting on IU Khan the only words used by him that might connect him to RK Anand through Kulkarni are 'Bade Saheb'. If 'Bade Saheb' referred to RK Anand, the involvement of IU Khan needs no further proof. The question, however, is whether that finding can be safely arrived at.

121Copy pinpoint121. Now, what are the materials that might suggest that while asking Kulkarni whether he had met Bade Saheb, IU Khan meant RK Anand. Apart from the piece of conversation between Deepak Verma and Kulkarni when they were returning c after meeting with IU Khan, relied upon by the High Court, there is another material, for whatever its worth, that doesn't find any mention in the High Court judgment. It is Kulkarni's statement in his interview recorded at the NDTV studio. He said as follows; D ' "He (IU Khan) directed me to Mr RK Anand is in that video you can find 'Bade Saheb'. He meant that Mr. RK Anand."

122Copy pinpoint122. We mention it only because it is one of the materials E lying on the record. Not that we rely on it in the least. Having known the conduct of Kulkarni throughout this episode as discussed in detail in the earlier part of the judgment it is .i· impossible to rely on this statement and we don't even fault the High Court for not taking any note of it. F

123Copy pinpoint123. The only other positive material in this regard is the one referred to by the High Court. The High Court obseNed that towards the end of the recording by the button camera, "Mr. Deepak Verma asked Mr. Kulkarni about the identity of Bade Saheb and Mr. Kulkarni responded by saying that it is Mr. G Anand." But the reference by the High Court to that particular piece of conversation between Deepak Verma and Kulkarni is neither complete nor accurate. We have noted earlier that the transcript submitted to the High Court by NDTV was incomplete and it covered only the exchange between Kulkarni and IU Khan. H

1138 SUPREME COURT REPORTS [2009] 11 S.C.R.

A If the High Court had before it the full transcript of the entire recording it might have taken a different view. We have viewed the CD labelled as "Button Spy cam Recording done by Sunil Kulkarni. IU Khan Sting Operation" a number of times and we find that on the way back after meeting IU Khan, Kulkarni was B being quite voluble. He spoke to Deepak Verma and gave him some instructions. A part of their conversation, relevant for our purpose is as follows: