Court On Its Own Motion vs State And Others on 21 August, 2008
IN THE HIGH COURT OF DELHI AT NEW DELHI WP (CRL.) NO. 796/2007
Judgment reserved on: May 2, 2008 21.08.2008
Judgment delivered on: August 21st, 2008
Court on its own motion ?Petitioner Through: Mr. Arvind Nigam, Advocate and
Amicus Curiae
Versus
State and Others ?Respondents
Through: Mr. Sanjay Jain, Sr. Advocate with
Mr. Vijay K. Sondhi, Mr. Varun
Pareek and Mr. Kapil Arora,
Advocates for NDTV.
Mr. Vinay Bhasin and Mr. Ashok
Bhasin, Sr. Advocates with
Ms. Shivani Lal and Mr. Vishv
Nidhi,
Advocates for contemnor Mr.
R.K.
Anand along with Mr. R.K Anand
in person.
Mr. P.P. Rao, Sr. Advocate with Mr. Huzefa Ahmadi, Mr. H.R. Khan Suhel, Mr.
Amaan Khan and
Mr. Saif Khan, Advocates for
contemnor Mr. I.U. Khan with
Mr. I.U. Khan in person.
Mr. S.P. Kalra, Sr. Advocate
with
Mr. Munish Malhotra for
contemnor
Mr. Sri Bhagwan Sharma with contemnor Mr. Sri Bhagwan Sharma in person.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SARIN HON'BLE MR. JUSTICE MADAN B. LOKUR
1. Whether the Reporters of local papers may be allowed to see the judgment?
Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
MADAN B. LOKUR, J.
The question for our consideration is whether Mr. R.K. Anand and Mr. I.U.
Khan, Senior Advocates and Mr. Sri Bhagwan Sharma, Advocate have committed
criminal contempt of Court or not. We have found Mr. Anand and Mr. Khan
guilty
of criminal contempt of Court for reasons recorded in the judgment. Neither
of
them had tendered any apology or demonstrated contrition or repentance for
their
actions. Accordingly, towards the end of the judgment, we have pronounced the
punishment awarded to them. We have found Mr. Sri Bhagwan Sharma not guilty
of
criminal contempt of Court.
Background facts:
2. On 30th May, 2007 a TV news channel ? NDTV ? carried a report relating
to a ?sting? operation. The report concerned itself with the role of a
defence
lawyer and the Special Public Prosecutor in an ongoing Sessions trial in what
is
commonly called the ?BMW case?.
3. On 31st May, 2007 a Division Bench of this Court, on its own motion,
registered a writ petition being WP (Crl.) No. 796 of 2007 since it was of the
opinion that if the reported contents were true, they raise serious issues
concerning criminal justice administration. Under these circumstances, the
Division Bench felt it expedient and in the interest of justice to ascertain
the
full facts from NDTV.
4. The Division Bench issued a direction to the Registrar General to collect
all materials that may be available in respect of the telecast and also
directed NDTV to preserve the original material including the CD/video
pertaining to the sting operation.
5. It appears that simultaneously the learned Additional Sessions Judge
before whom the BMW case was pending also instituted an inquiry into the
contents of the report and on 1st June, 2007 the Managing Editor of NDTV
produced before him three chips and five CDs containing the material in the
three chips (which had the original unedited recording). However, since this
Court was seized of the matter, the learned Additional Sessions Judge did not
proceed further with the inquiry.
6. In compliance with the order dated 31st May, 2007 NDTV produced before
the Registrar (General/Administration) of this Court, on 2nd June, 2007 six
CDs.
One of the CDs was said to be edited, while the remaining five were said to
be
unedited. The statement of Ms. Poonam Agarwal a reporter of NDTV was recorded
to
this effect and the CDs were placed in a sealed cover. Ms. Agarwal also
stated
that ?The NDTV news channel does not have any other material in connection
with
the sting operation in question?. She undertook to preserve the original
chips.
7. Subsequently, on 6th June, 2007 Ms. Agarwal submitted the transcripts
of the six CDs. She also stated that the six CDs were ?prepared from four spy
camera chips which were recorded on different occasions?.
8. On 23rd July, 2007 Ms. Agarwal filed an affidavit (on the direction of
the Court) concerning the sting or undercover operation from the stage it was
conceived, attendant circumstances, details of recordings, time and place
etc.
The affidavit broadly states that on 20th April, 2007 NDTV had telecast a
half-
hour special on the BMW case and thereafter on 22nd April, 2007 one Mr. Sunil
Laxman Kulkarni contacted her and told her that he had seen the half-hour
programme and was impressed by it. He told her that he had some information
relevant to the case and would like to meet her. She met Mr. Kulkarni the
same
day and again on the 23rd April, 2007 when he told her that there was a
strong
nexus between the prosecution and the defence in the BMW case and that he
wanted
to do a sting operation to make the nexus public.
9. At this stage, it may be broadly mentioned that Mr. Kulkarni claims to
have witnessed an incident that occurred in the early morning of 10th
January,
1999 when a BMW car allegedly driven by one Mr. Sanjeev Nanda in a drunken
state
caused the death of six persons. The police registered a case under Section
304
read with Sections 308 and 34 of the IPC and commenced their investigations.
During the course of investigations, Mr. Kulkarni came forward as an eye
witness
to the incident. After investigations were complete, the police filed a
challan,
charges were framed against the accused (including Mr. Nanda) and the trial
commenced before the Additional Sessions Judge.
10. Among others, the prosecution cited Mr. Kulkarni as its witness, but
on 30th September, 1999 he was dropped from the list of witnesses, apparently
on
the instructions of the police.
11. Much later, by an order dated 19th March, 2007 the learned Additional
Sessions Judge suo motu issued a summons to Mr. Kulkarni to depose as a court
witness. The summons was returnable on 14th May, 2007 and the telecast by
NDTV
is mainly concerned with the events of this period. It may be mentioned for
the
record that Mr. Kulkarni was apparently not served with the summons, but
appeared in Court and his examination in chief was recorded on 14th and 17th
May, 2007 and he was partly examined by Mr. I.U. Khan (Special Public
Prosecutor
in the BMW case) on 29th May, 2007.
12. Earlier, on 28th April, 2007 a sting operation was carried out by Mr.
Kulkarni and Mr. Deepak Verma of NDTV in the chamber of Mr. I.U. Khan in the
Patiala House Courts. Mr. Kulkarni carried a hidden camera in his shirt (a
button camera) and Mr. Verma also carried a hidden camera in a bag (a bag
camera). The chip containing the recording made by the button camera was
subsequently reformatted by NDTV after copying the contents onto a compact
disc
(CD). The original chip from the bag camera is available and we have viewed
its
contents.
13. A second sting operation was carried out by Mr. Kulkarni on 6th May,
2007 when he met Mr. R.K. Anand (Senior Advocate and learned counsel for the
accused) in the VIP lounge at the Indira Gandhi International Airport
(Domestic
Terminal). The recording was carried out by using a button camera.
14. A third sting operation was carried out in the same manner by Mr.
Kulkarni on 8th May, 2007 when he entered a car in which Mr. Anand was already
sitting. Both Mr. Kulkarni and Mr. Anand travelled from outside the Delhi
High
court premises to South Extension where Mr. Kulkarni disembarked.
15. The fourth and final sting operation was carried out later in the evening
on the same day when Mr. Kulkarni met Mr. Sri Bhagwan Sharma (an
advocate and colleague of Mr. Anand) and Mr. Lovely (an associate of Mr.
Anand
and since deceased) in the South Extension Part II market.
16. The original chips used in the last three sting operations are available
and we have viewed their contents.
17. Based on the four sting or undercover operations, NDTV telecast a
programme called ?India 60 Minutes? on 30th May, 2007. The programme begins with
a short statement or introduction by Mr. Kulkarni. The programme was followed
by
the 9 O?clock News on the same day and the 8 O?clock News and the 9 O?clock
News
on the 31st containing excerpts from the sting operation.
18. On 6th August, 2007 Mr. Kulkarni filed an affidavit (which was put up
before the Court on 9th August, 2007) in which he stated, inter alia, that he
was not interested in giving any interview to Ms. Agarwal but because of her
repeated attempts and to get rid of her, he gave her an interview on 25th
April,
2007. According to Mr. Kulkarni, Ms. Agarwal was aggressive, adamant and had
threatened him a lot. He says that in his meeting with Mr. Khan on 28th
April,
2007 he put questions to him in the manner directed by Ms. Agarwal. The
reference to ?Bade Saheb? in that meeting meant senior police officials but Ms.
Agarwal ?forced me to mean that Bade Saheb means Sh. R.K. Anand as it suits
her
whole story.? Mr. Kulkarni says that he met Mr. Anand, ?following him on the
instructions of Ms. Poonam Agarwal and forced me to converse with me (sic)
regarding the case.?
19. The sum and substance of Mr. Kulkarni?s affidavit is that the sting
operation was masterminded by Ms. Agarwal for her ulterior purposes and to boost
the TRP ratings of NDTV and that Mr. Kulkarni was ?trapped? into
participation.
20. On 7th August, 2007 on a consideration of the material available, that
is, the CDs, the transcripts of the various programmes, viewing of the edited
and unedited footage and the affidavits on record (other than the affidavit
of
Mr. Kulkarni) the Court noted that meetings took place on 28th April, 2007,
6th
May, 2007 and 8th May, 2007 between Mr. Sunil Laxman Kulkarni, Mr. I.U. Khan
Special Public Prosecutor, Mr. R.K. Anand, Senior Advocate and learned
counsel
for the accused, Mr. Sri Bhagwan Sharma, Advocate and colleague of Mr. Anand
and
Mr. Lovely a representative of Mr. Anand and that it was prima facie
satisfied
that these persons ?have willfully and deliberately tried to interfere with
the
due course of judicial proceedings and administration of justice by the
courts.?
It was observed that prima facie their acts and conduct were intended to
subvert
the administration of justice in the pending BMW case and in particular
influence the outcome of the pending judicial proceedings. Accordingly, in
exercise of powers conferred by Article 215 of the Constitution proceedings
for
contempt of Court (as defined in Section 2(c) of the Contempt of Courts Act,
1972) were initiated against Mr. Anand, Mr. Khan and Mr. Sri Bhagwan Sharma
and
they were asked to show cause why they should not be punished accordingly.
Notice was also issued Mr. Lovely but since he expired, the proceedings
against
him did not continue any further.
21. In response to the notice, Mr. Khan filed a reply affidavit dated 1st
October, 2007, while Mr. Sri Bhagwan Sharma and Mr. Anand filed their
respective
reply affidavit on 3rd October, 2007. Further affidavits and written
submissions
have also been filed by the alleged contemnors and they have been heard in
extenso. Mr. Arvind Nigam, Advocate was appointed as Amicus Curiae and he has
also been heard in detail. Some clarifications were sought from NDTV and they
were given by Mr. Harish Salve and Mr. Sanjay Jain, Senior Advocates. We have
had occasion to view the footage from the CDs and the original chips.
22. We may mention that during the course of hearing, NDTV made another
telecast on 3rd December, 2007 suggesting therein that Mr. Kulkarni and Mr.
Anand were known to each other for a considerable period of time and that Mr.
Kulkarni had even stayed at the residence of Mr. Anand in Himachal Pradesh.
We
have merely taken note of this telecast as also the response of Mr. Anand in
respect of this telecast.
Preliminary matters:
23. For the purposes of deciding on the show cause notice, Mr. Anand, who
appeared in person, submitted five preliminary matters for our consideration.
He
was followed and supported on some issues by Mr. P.P. Rao Senior Advocate
(ably
assisted by Mr. Huzefa Ahmadi, Advocate) appearing for Mr. I.U. Khan.
24. Mr. Anand submitted firstly, that NDTV had committed contempt of Court by
telecasting the programme on 30th May, 2007; secondly, the mass media
needs to be checked and controlled, especially in respect of reporting
pending
cases, since it uses its reach to influence or prejudice mankind in general
to
hold a particular view which may not necessarily be the correct view;
thirdly,
this Court needs to lay down the law in respect of sting or undercover
operations such as the ones that we are concerned with; fourthly, it is
imperative for us to appreciate the nature of criminal contempt proceedings,
with particular reference to the standard and onus of proof, and finally, the
video recordings that are the primary material against the alleged contemnors
are not admissible in evidence and are even otherwise unreliable. Mr. Anand
has
also filed certain interlocutory applications, which we will be dealing with
later in the judgment.
Has NDTV committed contempt of Court?
25. Mr. Anand submitted that the expose by NDTV on 30th May, 2007 actually
cast him in a bad light in as much as aspersions were made on his
professional
integrity and even otherwise it attacked his professional competence.
According
to him, viewers were made to believe that he is capable of resorting to
unethical conduct to save his client from conviction (assuming his client is
guilty). By casting aspersions on him and attacking his professional
integrity
and competence, NDTV has prevented him from fearlessly discharging his duties
as
an advocate for the cause of his client. Thus, it was contended, that
actually
NDTV had interfered in the administration and due course of justice. In this
context, it was also submitted that NDTV had violated the ?sub judice
principle?
by unfairly telecasting untruths or half truths thereby seriously prejudicing
the pending proceedings in the BMW case. It was submitted that NDTV
selectively
telecast clandestinely obtained video clips with the intention of
deliberately
misleading the general public, and to make matters worse, it did not air the
viewpoint of Mr. Anand but only telecast one side of the story on national
television. The sum and substance of the contentions of Mr. Anand in this
regard
were that he is more a victim rather than a villain - in fact NDTV had
committed
criminal contempt rather than he.
26. On the issue whether or not proceedings should be initiated against NDTV
for criminal contempt of Court, we wish to make it clear that Mr. Anand did
not ask for a notice of criminal contempt to be issued to NDTV - he left it
to
our wisdom to take whatever steps are necessary.
27. We find that Mr. Anand has advanced a rather peculiar argument: he did
not wish to move a petition against NDTV for committing contempt of Court,
but
he ?invited? us to exercise our contempt power suo motu. We are of the
opinion
that since Mr. Anand has not moved any petition for initiating proceedings
for
contempt of Court against NDTV in respect of the telecast of 30th May, 2007
nor
has he made any oral request in that regard, we should decline to consider
his
?suggestion?. As regards exercise of suo motu jurisdiction, we are of the
opinion that a Court should exercise its contempt jurisdiction sparingly,
with
scrupulous care and caution. Contempt of Court is serious business and no
Court
should wantonly invoke its contempt jurisdiction only because it is vested
with
the power to do so. Given the facts of this case, we are of the view that
this
is not one of those rare or brazen cases where we should initiate suo motu
action against NDTV for contempt of Court.
28. Consequently, it does not appear to be necessary to deal with the cases
cited by Mr. Anand. However, we are doing so because we feel it necessary
to clear the air in so far as the rights of litigants and their advocates are
concerned. Even if a different perspective or view than the findings and
views
expressed by us can be propounded, that would not affect the finding on
merits
given by us in respect of criminal contempt having been committed by the
alleged
contemnors. This is because of overwhelming and unimpeachable evidence on
record
beckoning and calling for maintaining the purity of the stream of justice
especially when it is sought to be polluted by those having a pivotal role
within the system.
29. In support of his contention, Mr. Anand relied upon Ananta Lal Singh
v. Alfred Henry Watson, AIR 1931 Calcutta 257, Telhara Cotton Ginning Co.
Ltd.
v. Kashinath Gangadhar Namjoshi, AIR 1940 Nagpur 110, Thirumalaiappa v.
Kumaraswami, AIR 1956 Madras 621, In re Bhola Nath, 1961 Cri LJ 134, Damayanti
v. S. Vaney, 1966 Cri LJ 9, Delhi Tamil Education Association v. J.
Samimalai,
97 (2002) DLT 352 (DB) and an unreported decision of this Court H. Syama
Sundara
Rao v. Union of India, MANU/DE/9650/20061.
30. Ananta Lal Singh is important because it deals with allegations made
in the mass media (in a newspaper) during the pendency of a trial. The Court
noted and accepted the argument of learned counsel that a tendency to
interfere
with the due course of justice may be noticed in two ways: one form of
contempt
(which the Court watches very narrowly) is of ?prejudicing mankind against
persons who are on their trial raising an atmosphere of prejudice against
them
by comment which is addressed to the public at large.? Another form of
contempt
is if aspersions are cast on ?certain? clients of an advocate such that it
deters the advocate from continuing with his duty towards the client or
embarrasses him in discharging that duty. Similarly, commenting on an advocate
with reference to his professional conduct of cases may also amount to
contempt
of Court, if it has the tendency to or is calculated to interfere in the
administration of justice. The Court cautioned, however, that, ?? the Court?s
jurisdiction in contempt is not to be invoked unless there is
real prejudice which can be regarded as a substantial interference with the
due
course of justice. It is not every theoretical tendency that will attract the
action of the Court in its very special jurisdiction.?
31. Telhara Cotton is an instance of an attempt to cow down or browbeat an
advocate so that he is deterred from continuing with the brief of his client.
In
this case a threat was given to an advocate that action would be taken
against
him unless he unconditionally withdrew an averment made in the written
statement. This was held to be ?a clear invasion of the counsel?s right to
represent his client?s case loyally and properly and further interfered in
the
due performance of his duty towards his client.?
32. Reliance upon Thirumalaiappa is misplaced. That was a case in which (i)
attacks were made against an advocate outside court precincts, (ii) the
attacks were made two days after termination of the proceedings, and (iii)
the
attacks had no bearing or relation to the proceedings that terminated. In
these
circumstances, it was held doubtful if protection and consequent exercise of
the
summary jurisdiction of the Court was necessary. The insult to the advocate
could not be construed as a condemnation of the system of administration of
justice but would amount to a calumny upon an individual.
33. However, one important and noteworthy enunciation of law is mentioned
in Thirumalaiappa. This is a passage from Oswald?s Contempt of Court,
Committal,
Attachment, and Arrest upon Civil Process which reads as follows (page 91 of
the
1910 edition):
?An insult to counsel may be punished as a contempt. All publications which
offend against the dignity of the Court, or are calculated to prejudice the
course of justice, will constitute contempts.
Offences of this nature are of three kinds - namely, those which (1)
scandalize
the Court; or (2) abuse the parties concerned in causes there; or (3)
prejudice
mankind against persons before the cause is heard. Under the first head fall
libels on the integrity of the Court, its Judges, officers or proceedings;
under
the second and third heads anything which tends to excite prejudice against
the
parties, or their litigation, while it is pending. For example, attacks on or
abuse of a party, his witnesses or solicitor, constitute contempts, though a
mere libel on a party, not amounting to an interference with the course of
justice, does not, the party being left to his remedy by action.?
34. We will have occasion, a little later when we are dealing with the merits
of the case, to consider a fourth category of offence, namely, where both
parties (the prosecution and the defense) collude to defeat the course of
justice thereby virtually playing a fraud upon the Court.
35. Bhola Nath is not of any importance in so far as we are concerned since
that decision related to contempt in the face of the Court. What is of
relevance, though, is the reiteration of the principle that any interruption
in
the discharge of the duties of an advocate (in this case the Public
Prosecutor)
by reason of an attack on his integrity or a similar embarrassment would
amount
to contempt of Court. In the decision under review, the Public Prosecutor was
so
worried, unnerved and shocked that he wanted to give up the case entrusted to
him.
36. Damayanti was again a case of contempt committed in the face of the
Court. The defendant in that case threatened the plaintiff?s advocate by saying
that he (the defendant) would see to it that the plaintiff?s advocate would
go
to jail, that two criminal cases had already been filed by the defendant
against
him and that he would shortly file two more criminal cases against him. This
was
held to be contempt of Court. Reference was also made to French v. French,
(1824) 1 Hog. 134 wherein it was held: ?Advocates who appear for the parties
being officers of Court, any abuse or
insult or aspersions cast on them, which would interfere with the course of
administration of justice, must necessarily be held to amount to contempt of
Court.?
37. But what is of importance in Damayanti is that reliance was placed on
Smith v. Zakeman, (1856) 26 LJ Ch 305 wherein it was observed that a threat
for
the purpose of intimidating a suitor would be contempt of Court and it was
not
relevant whether the threat had its effect or not. In our opinion, the
principle
laid down would equally apply in the event of a threat to an advocate,
regardless of whether the advocate is cowed down by the threat or not. In R v.
Machin, [1980] 3 All ER 151 it was noted that the gist of an offence of
contempt
of Court is ?conduct which may lead and is intended to lead to a miscarriage
of
justice whether or not a miscarriage actually occurs.? We agree with this
exposition of the law.
38. In Delhi Tamil Education Association, the law on the subject was pithily,
though in a somewhat narrow manner, stated in the following words:
??all and every type of threat to an Advocate or a litigant does not and
would
not attract a criminal contempt jurisdiction of the Court unless it was
specifically shown and established to have bred a tendency to prevent or deter
the Advocate concerned from discharging his professional duty. The threat
must
have a nexus with and impact on the pending judicial proceedings so as to
interfere in it or tend to do so to change or alter the course of justice. It
must be a real and not a casual and imaginary and its degree must be such as
to
set an Advocate thinking and to constrain him to throw up his brief depriving
the Court of his assistance to do justice.?
39. Syama Sundara Rao reiterates and reaffirms the principles mentioned in
the decisions referred to above, and in a sense extends the frontiers of
contempt jurisdiction. It was held: ?However, any attempt made by a party to
pressurize the opposite party or its
advocate to withdraw a plea taken in the course of proceedings pending in
court,
amounts to direct interference with the administration of justice. Such an
attempt, in our opinion, also takes in its fold, issuance of notices and
filing
of applications, etc. containing scurrilous, disparaging and derogatory
remarks
against the opposite party and its advocate. In preventing the respondent
from
putting forward its defense and pleas as may be deemed by it to be relevant
for
the purposes of adjudicating the case in hand, it cannot be a defense to
state
that any party ? enjoys a privilege to pressurize the opposite party, much
less
his/her advocate. In our opinion, such an act amounts to creating impediments
in
the free flow of administration of justice. Any such attempt has to be
treated
as an attempt to interfere with and obstruct the administration of justice.?
40. On the duty of the Court in dealing with such a situation, the Division
Bench observed:
?It is thus the duty of the courts to protect the advocate from being cowed
down
into submission and under pressure of threat of menace from any quarter and
thus
abandon their clients by withdrawing pleas taken on their behalf or from
withdrawing from the brief itself, which may prove fatal not only to the
legal
proceeding in question but also permit an impression to gain ground that
adoption of such tactics are permissible or even acceptable.?
41. From a review of the decisions cited before us, the following principles
may be deduced, in so far as the right of an advocate to conduct a
case is concerned. The principles are:
1. It is of primary importance to ensure that the administration of justice
is
kept unsullied from any external influence whatsoever.
2. An advocate is an officer of the Court and if he is interrupted or
hindered
from performing his duty faithfully and devotedly to his client or from
rendering effective assistance to the Court, a prima facie case for contempt of
Court is made out.
3. It is irrelevant that the advocate is not actually prevented from
performing
his duty to his client or to the Court. It is enough to invite proceedings
for
contempt if the act complained of is such that it has a real tendency to do
so.
4. While the nature of ?contemptuous? acts may be several, some examples are
where the client of an advocate is portrayed in such light that it is
embarrassing for an advocate to represent him; where the professional
competence, conduct or integrity of an advocate is doubted or criticized; where
the advocate is sought to be cowed down or browbeaten through applications,
notices or pleadings that are drafted in a manner calculated to make it
difficult for an advocate to appropriately represent his client, etc.
Prejudicing mankind against a person on trial (in the broader sense) may also
invite action for contempt of Court.
5. The Court is obliged to satisfy itself that the act complained of results
in
the advocate running a real risk of not being able to perform his duty or
that
there is a real prejudice that the administration of justice may be
interfered
with or prejudicially affected or compromised. To put it negatively, the act
complained of must not have only a theoretical tendency of preventing the
advocate from performing his functions fearlessly.
6. It is also the duty of the Court to protect its officers (including
advocates) from being maligned or suffer calumnies of a degree that interfere
with the due course of justice.
7. The principles enunciated above are applicable only in respect of pending
causes or causes that are imminent. Where the proceedings have terminated, an
advocate is not entitled to complain of contempt of Court, but his remedy
lies
in taking recourse to the normal legal channels and processes of law.
8. Similarly, there is a thin line between preventing or tending to prevent
an
advocate from performing his duties and heaping calumny upon him. The latter
does not necessarily interfere or tend to interfere in the administration of
justice and may be otherwise actionable at law.
42. Since Mr. Anand did not press for initiating proceedings for contempt
of Court against NDTV or its reporter, we need not decide whether any of
these
principles would come into play, one way or the other. We are also not
required
to express any opinion whether Ms. Agarwal or NDTV have committed contempt of
Court and, therefore, we refrain from doing so. We may only mention that Mr.
Anand has not denied meeting Mr. Kulkarni in the lounge in the domestic
terminal
in IGI Airport on 6th May, 2007. It is true that the meeting was not on the
invitation of Mr. Anand, but it was with his consent. It is also possible
that
given the nature of the conversation that took place, Mr. Anand did not want
to
make a ?scene? at a public place by shooing off Mr. Kulkarni. But surely,
isn?t
it rather odd that Mr. Anand and Mr. Kulkarni travelled together on 8th May,
2007 in Mr. Anand?s car from just outside the Delhi High Court premises all
the
way to South Extension without so much as whimper of protest from Mr. Anand?
43. We wondered why NDTV or Ms. Agarwal or both would want to ?get after?
Mr. Anand and Mr. Khan. In response, learned counsel for Mr. Khan submitted
that
Ms. Agarwal was rather aggressive in her attempts to get information about
the
BMW case from Mr. Khan, but when he refused her ?overtures? she hatched a
conspiracy to malign him. Reference was made to the affidavit dated 1st
October,
2007 filed by Mr. Khan wherein he states that a few days prior to 19th April,
2007 the reporter started pressing him and his office for the statements of
the
witnesses and the case diary; she also wanted to interview Mr. Khan to enable
her to telecast a programme on the BMW case. But when Mr. Khan declined to
cooperate, she got annoyed and ?adopted threatening tactics?.
44. On 19th April, 2007 Mr. Vikas Arora, a colleague of Mr. Khan sent a
telegram to the Chief Editor of NDTV with a copy to the Commissioner of Police,
the Chairman of the Press Council of India and to the Deputy Commissioner of
Police to the effect that the reporter was blackmailing them (Mr. Khan and
Mr.
Arora) to supply the statement of witnesses and the case diary in the BMW
case
and to give an interview in connection with the prosecution of the case. Upon
refusal being communicated to her, the reporter threatened to expose Mr. Khan
and Mr. Arora through some unknown person and would bring it on record that
the
police and the Public Prosecutor had been influenced and bribed by the
accused.
A request was made in the telegram to take action against the reporter and
other
persons behind the conspiracy.
45. As far as Mr. Anand is concerned, he stated in his affidavit dated 3rd
October, 2007 that he was handed over a file containing serious allegations
of a
tax fraud committed by NDTV and some other entities. He was in the process of
settling a First Information Report to the police and initiating a public
interest litigation in connection with the tax fraud. NDTV was aware of the
fact
that Mr. Anand was in possession of the relevant papers and so the telecast
was
made on 30th May, 2007 to deter him from bringing the tax fraud out in the
open.
46. As far as we are concerned, the alleged motive behind NDTV?s expose (as
detailed by learned counsel for Mr. Khan and by Mr. Anand) is rather thin
and in any case, irrelevant. NDTV or its reporter may or may not have had a
grouse or a grudge against Mr. Anand or Mr. Khan but that cannot be used as a
justification by them for committing contempt of Court. The motive may have
some
relevance to the genuineness or authenticity of the contents of the telecast,
but that is a different matter altogether and we will advert to it at the
appropriate stage. Suffice it to say that our principal concern is simply
this:
have Mr. Anand, Mr. Khan and Mr. Sri Bhagwan Sharma committed contempt of
Court
or not. What prompted the sting operation by NDTV is not of any consequence
for
answering this question. In this regard, reference may be made to Raja Ram
Pal
v. Hon?ble Speaker, Lok Sabha, (2007) 3 SCC 184 wherein a similar contention
was
rejected by the Supreme Court in the following words: ?It has been contended
by the petitioners that the circumstances did not warrant
the exercise by the Houses of Parliament of the power of expulsion inasmuch
as
the persons behind the sting operations were driven by motives of pelf and
profit. In this context, the learned counsel for the petitioners would refer
repeatedly to the evidence, in particular, of Mr. Aniruddha Bahal as adduced
before the Inquiry Committee of Lok Sabha wherein he would concede certain
financial gains on account of arrangements with the television channels for
telecast of the programme in question. ?We are unable to subscribe to this
reasoning so as to find fault with the
action that has been impugned before us. We are not concerned here with what
kind of gains, financial or otherwise, those persons made as had conceived or
engineered the sting operations leading to the material being brought into
public domain through electronic media. This was not an area of anxiety even
for
the Houses of Parliament when they set about probing the matter resulting
ultimately in expulsions. The sole question that was required to be addressed
by
the Inquiry Committees and the legislative chambers revolved around the issue
of
misconduct attributed to the individual Members bringing the House in
disrepute.
We, therefore, reject the above contention reiterating what we have already
concluded, namely, that the expediency and necessity of exercise of such a
power
by the legislature is for determination by the latter and not by the courts.?
(emphasis ours)
Investigations, court cases, investigative journalism and trial by media :
47. Mr. Anand submitted that NDTV did not adhere to journalistic norms in
gathering information prejudicial to his interest and telecasting the
programme
on 30th May, 2007. It was submitted that NDTV should not have used a
clandestine
method of collecting ?news? and it ought to have telecast his version of the
events and his comments on the sting operation, which it did not, except
after
the event.
48. We are not really concerned with journalistic norms or how the mass media
?behaves? in a given situation. This is really a matter that falls within
the domain of journalists and broadcasters and their disciplinary bodies. The
Courts come into the picture only if there is an allegation of transgression
of
the law by the media. Similarly, if there is an allegation of defamation by
the
media against an individual, he has a right to approach the Courts to redress
his grievances. The Courts are not and cannot be expected to deal with
subjective issues of bias, attitude, behavior etc. in reporting events.
49. However, since considerable arguments were advanced on the role of the
media in matters such as the present, we think it appropriate to explain the
legal limits for the benefit of those concerned.
50. There is no doubt, as observed by the Supreme Court in Rajendra Sail
v. M.P. High Court Bar Association, (2005) 6 SCC 109 that the reach of the
media
is to every nook and corner of the world, particularly these days when we
have
24-hour news channels and webcasts on the Internet. The Supreme Court also
observed that a large number of people tend to believe as correct that which
appears in the print or electronic media. For these reasons alone, the mass
media has to be circumspect while dealing with ?news?.
51. The Supreme Court has noted that Robertson and Nicol on Media Law express
the view that the media?s general mechanism of self regulation has
failed in the United Kingdom. The Press Complaints Commission has been
regarded
as a public relations operation and the National Union of Journalists has
devised a code of conduct for its members but it is seldom enforced.
52. In D.N. Prasad v. Principal Secretary, 2005 Cri LJ 1901 it was observed:
?Unfortunately, it is not realized that any item of news telecast in the
channels would reach persons of all categories, irrespective of age,
literacy,
and their capacity to understand or withstand. The impact of such a telecast
on
the society is phenomenal. ? Unfortunately, this uncontrolled or unedited
telecast or propagation of news is resorted to [in] the name of exercise of
right to freedom of speech and expression, or freedom of Press.?
53. In Surya Prakash Khatri v. Smt. Madhu Trehan, 92 (2001) DLT 665 (FB)
it was observed that the power of the Press is almost like nuclear power ? it
can create and it can destroy. Keeping this in mind, it is imperative for the
media to exercise due care and caution before publication of a potentially
damaging piece. It was said that such news reports are like a loaded gun and
it
may not be appropriate for the media to contend that it not know that the gun
was loaded. It was observed that, ?The editor of a newspaper or a journal has
a greater responsibility to guard
against untruthful news and publications for the simple reason that his
utterances have a far greater circulation and impact than the utterances of an
individual and by reason of their appearing in print, they are likely to be
believed by the ignorant.?
54. It was also observed that it is well settled that once proceedings in
Court have begun, the media has no role to play in the administration of
justice.
55. In the context of the last observation, it is necessary to refer to M.P.
Lohia v. State of West Bengal, (2005) 2 SCC 686 wherein the Supreme Court
deprecated the practice of a ?trial by media? since it certainly interferes
in
the administration of justice. In this case, anticipatory bail in a dowry
death
case was declined by the Calcutta High Court and while a similar petition was
pending in the Supreme Court, a magazine brought out an interview with the
family of the deceased extensively giving their version of the events. This
was
deprecated by the Supreme Court. Similarly, in State of Maharashtra v.
Rajendra
Jawanmal Gandhi, (1997) 8 SCC 386 the Supreme Court observed that ?A trial by
press, electronic media or public agitation is the very antithesis of the
rule
of law.?
56. However, what is of limited importance from M.P. Lohia in so far as we
are concerned is whether the Supreme Court gave its assent to the principle
of
?strict liability contempt?. This is so because it is not clear from a
reading
of the decision whether or not the magazine was aware of the pendency of the
proceedings before the Supreme Court. It is quite possible that the magazine
unknowingly took an incorrect decision to publish the interview and invited
strict liability contempt.
57. Our attention was drawn to Indian Council of Legal Aid and Advice v.
State, WP ? No. 17595/2006 decided on 27th November, 2006 wherein this Court
stated:
?The kind of media trial which is going on in this country creates bias not
only
in the minds of the general public but also vitiates the atmosphere and this
certainly has the tendency to put pressure on the Magistrate or the Sessions
Judge or on the court, while taking decisions, which is not a healthy sign
for
development of criminal jurisprudence. Media does not know what harm the
media
is doing by having a parallel trial and reporting the proceedings in a manner
by
giving the news which are detrimental sometimes to the accused who is facing
trial and sometimes even to the prosecution. Judges are also human beings and
when hue and cry is made by the media it is possible that the equilibrium of
a
Judge is also disturbed. It is high time that under the garb of freedom of
press
the parallel proceedings of media people in criminal trial should stop
immediately.?
58. No doubt the advice given by this Court has gone unheeded and so we
frequently come across instances of ?trial by media?.
59. Mr. Anand placed reliance on R. v. Savundranayagan, [1968] 3 All ER 439
to suggest that the law in England is no different. This decision is of some
importance and deals with two vital issues that we are concerned with. The
first
relates to ?a press campaign of considerable magnitude? in July 1966 in
connection, inter alia, with the disappearance of Savundra and his past unsavory
record. In this regard, the Court held that at that stage there was nothing
to
suggest that criminal proceedings were even in contemplation against him and,
therefore, there was no question of any contempt of Court. It was held, ?When
an insurance company fails and its policy holders are left stranded, this
is undoubtedly a matter of public interest and, indeed, public concern. When,
in
such circumstances, the moving figure in the company is a man with an
unsavoury
record who appears to have used large sums of the company?s money for his own
purposes and disappeared abroad, the matter becomes a public scandal. There
is
no doubt that a free press has a right, and indeed the duty, to comment on
such
topics so as to bring them to the attention of the public. It is in the
public
interest that this should be done. Indeed, it is sometimes largely because of
facts discovered and brought to light by the press that criminals are brought
to
justice. The private individual is adequately protected by the law of libel
should defamatory statements published about him be untrue, or if any
defamatory
comment made about him is unfair. This court does not consider that any real
complaint can be made about the press campaign in July, 1966, eighteen months
before the trial.?
60. The second issue related to an interview of Savundra in February, 1967
shortly after his return to England. The Court observed that at that time it
surely would have been obvious to everyone that he was about to be arrested
and
tried on charges of gross fraud. Commenting on the interview, it was held,
?It must not be supposed that proceedings to commit for contempt of court can
be
instituted only in respect of matters published after proceedings have
actually
begun. No one should imagine that he is safe from committal for contempt of
court if, knowing or having good reason to believe that criminal proceedings
are
imminent, he chooses to publish matters calculated to prejudice a fair trial.
On
any view the television interview with the appellant Savundra was deplorable.
?
None of the ordinary safeguards for fairness that exist in a court of law
were
observed, no doubt because they were not understood. They may seem prosaic to
those engaged in the entertainment business, but they are the rocks on which
freedom from oppression and tyranny have been established in this country for
centuries ?. The court has no doubt that the television authorities and all
those producing and appearing in televised programmes are conscious of their
public responsibility and know also of the peril in which they would all
stand
if any such interview were ever to be televised in the future. Trial by
television is not to be tolerated in a civilized society.?
61. It was not suggested by Mr. Anand that there should be a total ban on
reporting matters concerning judicial proceedings ? far from it. Indeed, he
cited In re: Harijai Singh, (1996) 6 SCC 466 to submit that freedom of the
Press
(in all its connotations) is a prerequisite for a democratic form of
government
and is regarded as ?the mother of all liberties?. But, at the same time, he
submitted that those concerned with the media must maintain high professional
standards and are obliged to verify the correctness of the news disseminated.
Publication of false news cannot be regarded as a public service, but a
disservice to the public. We cannot disagree. We may also add to this that
publication of every bit of news does not necessarily serve the public
interest.
62. The question posed by Mr. Anand, on this basis, was: what is the remedy
available to an advocate during the conduct of a case, if he is maligned
and vilified by irresponsible coverage in the media, as in the NDTV expose?
This
question arises, according to Mr. Anand, from the fact that NDTV did not
present
his version when it telecast the expose. To make matters worse, he submitted
that an attempt was made by NDTV to get his viewpoint, but since he could not
immediately respond being otherwise busy, this was projected by NDTV,
according
to Mr. Anand, as an attempt by him (that is Mr. Anand) to decline to put
forth
his point of view by stating that Mr. Anand was not available for his
comments!
63. To highlight his travails and tribulations caused by the expose, Mr.
Anand referred to Kartongen Kemi Och Forvaltning AB v. State, 2004 (72) DRJ
693.
In this case, the Central Bureau of Investigation (CBI) filed a charge sheet
after thirteen years of investigation, which included three years of
?investigative journalism? by the media. In a petition against the framing of
charges, it was conceded by learned counsel appearing for the CBI that there
was
no evidence showing the receipt of bribe money, but the CBI was on the trail
for
gathering such evidence. In this context, the Court observed: ?This case is a
nefarious example which manifestly demonstrates how the trial
and justice by media can cause irreparable, irreversible and incalculable
harm
to the reputation of a person and shunning of his family, relatives, and
friends
by the society. He is ostracized, humiliated and convicted without trial. All
this puts at grave risk due administration of justice. ?It is common
knowledge that such trials and investigative journalism and
publicity of pre-mature, half baked or even presumptive facets of
investigation
either by the media itself or at the instance of Investigating Agency has
almost
become a daily occurrence whether by electronic media, radio or press. They
chase some wrong doer, publish material about him little realizing the peril
it
may cause as it involves substantial risk to the fairness of the trial.
Unfortunately we are getting used to it.?
64. We are unable to appreciate the relevance of this case, except to the
extent that ?investigative journalism? has been adversely commented upon.
But,
the real questions that this decision raises are: what is the media to do in
a
case where investigations go on interminably? Is the media expected to remain
a
silent spectator during the entire period? What if the investigations are
shoddy
or patently one-sided or are carried out with a ?sweep it under the carpet?
attitude? What about the rights of the victim of a vilification campaign ? is
he
without recourse to any remedy in law? We propose to deal with these
questions
at the appropriate stage.
65. Mr. Anand cited another decision, which we find to be inapposite. This
was Subhash Chander v. S.M. Aggarwal, 25 (1984) DLT 52. This case arose as a
result of an interview given by a judge who tried a case in which he
convicted
the accused to death. The judge knew that the death sentence was awaiting
confirmation in the High Court, but still he gave interviews to the press and
even an interview on national television supporting the decision that he had
given. The Court noted:
?What is exercising our minds and as we know the minds of all those concerned
with law and justice is as to why does he [the judge] find it necessary to go
to
the press etc. to give interviews in respect of pending case knowing very
well
that his interviews were bound to create an atmosphere of prejudice against
the
accused in the mind of the general public??
66. In discussing the ?atmosphere of prejudice? mentioned in the question,
the Court held that,
?It cannot be denied that one of the most valuable rights of our citizens is
to
get a fair and impartial trial free from an atmosphere of prejudice. This
right
flows necessarily from Article 21 of the Constitution which makes it
obligatory
upon the State not to deprive any person of his life or personal liberty
except
according to the procedures established by law. It is, therefore, obligatory
on
all the citizens that while exercising their right they must keep in view the
obligations cast upon them. If accused have a right to a fair trial then it
necessarily follows that they must have a right to be tried in an atmosphere
free from prejudice or else the trial may be vitiated on this ground alone.?
67. On the impact of post-decision interviews pending an appeal (or
confirmation as in this case) the Court observed: ?[S]howering praise on a
judgment while its confirmation was sub-judice would
certainly amount to creating prejudice in the mind of the general public and
would make the task of the court very difficult. In such a case if the High
Court comes to a different conclusion it will be faced with an additional
burden
of dispelling the impression from the public mind that the approach adopted
by
the lower court was correct.?
68. In Brig. E.T. Sen v. Edatata Narayanan, 5 (1969) DLT 348 the allegation
was that pending the trial of a complaint for libel, the respondents
carried out a persistent one-sided press campaign against the cause of the
petitioner with a view to poisoning the mind of the general public and
thereby
hampering the course of justice. Among the allegations made by the petitioner
was that the report of the Court proceedings was inaccurate and misleading
and
there was a display of headlines of a scaring and sensational character. In
this
context, it was held that,
?Neither the press reporter nor the publisher of a newspaper can in my view,
claim an indefeasible right to put his own gloss on the statements in Court
by
selecting stray passages out of context which may have a tendency to convey
to
the reader to the prejudice of a party to the proceedings, a sense different
from what would appear when the statement is read in its own context. To
reproduce stray misleading passages in bold headlines in order to attract the
attention of casual readers may serve as an aggravating factor. Similarly,
while
reproducing the Court proceedings, no words may be added, omitted or
substituted
if their effect is to be more prejudicial to a party litigant than the actual
proceedings. Any deviation in the report from the correct proceedings
actually
recorded must, if it offends the law of contempt of Court, render the alleged
contemnor liable to be proceeded against.?
69. The above line of cases actually answer the questions posed by Mr. Anand
in as much as the remedy available to him, if so advised, is to move
against NDTV for defamation and for his client (the accused in the criminal
case) to move for contempt of Court. Neither of these steps has been taken
either by Mr. Anand or his client.
70. There does seem to be yet another remedy available and this is provided
by Attorney-General v. Times Newspapers Ltd., [1972] 3 All ER 1136 and
Attorney-General v. Times Newspapers Ltd., [1973] 3 All ER 54 and that is the
remedy of an injunction. Both these decisions were cited by Mr. Anand and
they
deal with the case of the ?thalidomide children? who were born with terrible
deformities due to the mothers of the children taking a drug called
thalidomide
during pregnancy.
71. In 1961, litigation was initiated against the manufacturer of
thalidomide, but that was settled by way of a compromise. Thereafter, in 1968
action was initiated by another group of aggrieved persons and during the
pendency of that cause, the press and television published articles and gave
commentaries, but within the bounds of the ?sub judice rule?. However, in
1972 a
newspaper published a series of critical articles and a complaint was made to
the Attorney-General that these articles amounted to a contempt of Court, but
he
took no action thereon. The case under discussion pertained to a further but
as
yet unpublished article in respect of which the Attorney-General sought an
injunction from publication. On going through the draft article, the Court
was
of the opinion that the only effect of its publication would be to mobilize
public opinion on the children?s behalf and that the purpose of the
publication
was to affect the outcome of the pending litigation, in that the manufacturer
would be persuaded to settle for a higher figure than it would be otherwise
minded.
72. Given this background, the concern of the Court was ensuring that justice
would be administered impartially. The Court considered the impact of
the proposed publication on the administration of justice and concluded that
there are three ways in which due and impartial administration of justice may
be
affected: first, it may affect and prejudice the mind of the tribunal itself;
second it may affect witnesses who are to be called. ?In an extreme case the
comment might amount to a threat to the witness sufficient to deter him from
giving evidence at all, and even where the comment is temperate and in no
sense
threatening, it is well known that witnesses often have difficulty in
reconstructing the events of an occurrence some time previously, and it is
clearly possible that comment sufficiently strong and sufficiently often
repeated might persuade a witness, quite unwittingly, to adopt a version of
the
events to which he speaks which is not the true version at all.?; third, it
may
prejudice the free choice and conduct of a party himself. ??.. it is quite
clearly established that comment on a pending action, directed to the conduct
and integrity of a party, may have a result of causing that party to abandon
his
claim or to settle his claim for a lower figure than he would otherwise have
been prepared to accept. If a party is subjected to pressure by reason of
unilateral comment on his case, and that pressure is of a kind which raises a
serious prospect that he will be denied justice because his freedom of action
in
the case will be affected, then a contempt of court has been established and
may
be the subject of prosecution or injunction.?
73. The Court referred to and cited the following from Skipworth?s Case
(1873) LR 9 QB 230:
?When an action is pending in a Court and anything is done which has tendency
to
obstruct the ordinary course of justice or to prejudice the trial, there is a
power given to the Courts ? to deal with and prevent any such matter.?
74. On the above facts, the Court concluded that the publication of the
proposed article would seriously prejudice the cause of justice and would be a
clear contempt of Court and so the Attorney-General was entitled to the
injunction sought against its publication.
75. This view was upheld by the House of Lords. While doing so, Lord Reid
observed:
?I do not think the freedom of the press would suffer, and I think the law
would
be clearer and easier to apply in practice if it is made a general rule that
it
is not permissible to prejudge issues in pending cases.? Lord Morris of
Borth-y-Gest said, ?When such unjustifiable interference is suppressed it is not
because those
charged with the responsibilities of administering justice are concerned for
their own dignity: it is because the very structure of ordered life is at
risk
if the recognized courts of the land are so flouted that their authority
wanes
and is supplanted.?
Lord Diplock observed,
?The due administration of justice requires first that all citizens should
have
unhindered access to the constitutionally established courts of criminal or
civil jurisdiction for the determination of disputes as to their legal rights
and liabilities; secondly, that they should be able to rely on obtaining in
the
courts the arbitrament of a tribunal which is free from bias against any
party
and whose decision will be based on those facts only that have been proved in
evidence adduced before it in accordance with the procedure adopted in courts
of
law; and thirdly that once the dispute has been submitted to a court of law,
they should be able to rely on their being no usurpation by any other person
of
the function of that court to decide it according to law. Conduct which is
calculated to prejudice any of these three requirements or to undermine the
public confidence that they will be observed is contempt of court.?
76. Finally, on the issue of responsible journalism, Mr. Anand cited the
ten principles enunciated in Reynolds v. Times Newspapers Ltd., [1999] 4 All
ER
609. These principles are:
(a) The seriousness of the allegation. The more serious the charge, the more
the
public is misinformed and the individual harmed, if the allegation is not
true.
(b) The nature of the information, and the extent to which the subject matter
is
of public concern.
(c) The source of the information. Some informants have no direct knowledge
of
the events. Some have their own axes to grind, or are being paid for their
stories.
(d) The steps taken to verify the allegation. (e) The status of the
information. The allegation may have already been the
subject of an investigation which commands respect. (f) The urgency of the
matter. News is often a perishable commodity. (g) Whether comment was sought
from the claimant (the aggrieved party). He may
have information others do not possess or have not disclosed. An approach to
the
claimant will not always be necessary. (h) Whether the [publication]
contained the gist of the claimant?s side of the
story.
(i) The tone of the [publication] can raise queries or call for an
investigation. It need not adopt allegations as statements of fact. (j) The
circumstances of the publication, including its timing.
77. On the basis of the case law cited before us on the issue of media ethics
and conduct, infractions thereof which tend to or constitute interference
with the administration of justice so as to constitute contempt, the
following
norms emerge.
1. The reach of the mass media is undoubtedly enormous. It can make contact
with
just about everybody, anywhere in the world. This range itself puts the media
under the spotlight requiring it to act with a great degree of care and
responsibility.
2. Most people tend to believe what is published in the mass media making it
necessary for the media to ensure that what is being published is accurate.
In
respect of a potentially damaging publication, the media cannot feign
ignorance
or plead that it did not know that it had a ?loaded gun?.
3. The concept of self-regulation of the media appears to be a myth. There
will
always be a debate about whether, in a given case, the media has transgressed
its limits so as to invite an injunction or later an action for contempt of
Court. The less frequently this happens, the better it is for an ordered
society.
4. Once proceedings have begun in a court of law or are otherwise imminent,
the
media has no role to play in the form of ?investigative journalism? or as a
fact
finder. The matter then rests entirely within the domain of the Court,
litigants
and their lawyers ? no matter how long the litigation lasts. The media ought
to
keep its hands off an ?active? case.
5. It follows from the above that before a cause is instituted in a Court of
law, or is otherwise not imminent, the media has full play in the matter of
legitimate ?investigative journalism?. This is in accord with our
Constitutional
principle of freedom of speech and expression and is in consonance with the
right and duty of the media to raise issues of public concern and interest.
This
is also in harmony with a citizen?s right to know particularly about events
relating to the investigation in a case, or delay in investigation or soft-
pedaling on investigations pertaining to matters of public concern and
importance.
6. When a cause is pending in Court, the media may only report fairly, truly,
faithfully and accurately the proceedings in the Court, without any semblance
of
bias towards one or the other party. The media may also make a fair comment
in
a pending cause without violating the sub-judice rule.
7. While trial by media ought to be deprecated, in the event any person feels
victimized or unfairly treated by the media - either through a ?trial by
media?
or otherwise - he is not without remedy. Proceedings for defamation or
injunction can always be initiated in an appropriate case.
8. It is not very clear whether the principle of ?strict liability contempt?
is
accepted in our jurisprudence or not. Until a definite conclusion is arrived
at
in an appropriate case, knowledge about the pendency of a case or its
imminent
institution is crucial in so far as the media is concerned. It may be said,
to
be on the safer side, that if the media (or reporter) is unaware about the
pendency of a case, and comments on it, no case of contempt of Court can be
made
out.
9. In the administration of justice, no balancing act is permissible. It is
not
permissible to contend that the public interest or the right to know
outweighs
the administration of justice. Such a view may shake the very structural
foundations of an impartial justice delivery system.
10. The norms mentioned above are in addition to the principles laid down in
Reynolds, with which we are in agreement.
78. On the issue raised by Mr. Anand, so far as we are concerned, there has
been no ?trial by media? in as much as the telecast does not concern itself
with the merits of the BMW case. The telecast merely seeks to project what
NDTV
believes to be the state of affairs in respect of the conduct of the lawyers
handling the case. It seeks to project that state of affairs on the basis of
material gathered by it through a set of sting operations. That NDTV is
entitled
to project its point of view is undoubted ? it is squarely covered by the
freedom of speech and expression. That it should have done so in and active
case, with material gathered in an intrusive and clandestine manner is
another
issue altogether, and we are immediately adverting to that issue.
79. We do appreciate that in respect of some cases (largely criminal cases)
the justice delivery system in our country progresses virtually at a
snail?s pace and often an innocent person has no real remedy available to
him,
if he in framed in a matter, or is subjected to a ?trial by media?. As a
result, seldom does anyone approach a court of law for relief either by way
of
an injunction or for damages in a case of ?trial by media?. Such being the
reality, we are of the opinion that the Courts have a great responsibility
and,
therefore, need to be far more vigilant and proactive in protecting the
rights
and reputation of an individual from an unwarranted ?trial by media?. In a
sense, the Courts have to energize the rule of law. While this may add to the
burden of our criminal Courts, we are of the view that it is imperative for
the
Courts to protect a citizen from what may appear to be victimization ? this
is
certainly the duty if not an obligation of Courts. This is all the more
important in a pending matter. For example, if a person is arrested on the
suspicion of having committed a crime, it is not the function of the media to
?declare? him (by implication) innocent or guilty ? that is within the
exclusive
domain of the judiciary. But if the accused is subjected to a ?trial?, either
through the print or audio-visual medium, it may subconsciously affect the
judgment of the judge, and that may well be to the prejudice of the accused ?
who is, in our justice delivery system, presumed innocent until proven
guilty.
In such a situation, the judge must be proactive by restraining the media
from
carrying out a parallel trial otherwise our criminal justice delivery system
will be completely subverted. Failure to do so would result in an unfortunate
situation arising in some cases as will be evident from what we discuss
herein
below.
80. Having said this, we find it difficult to accept the contention of Mr.
Anand that he was subjected to a trial. It is true that the telecast has
portrayed him negatively, but he had the choice of then moving the Courts for
an
injunction or now suing for damages. Mr. Anand does appear to have taken a
step
in the latter direction by issuing a notice to NDTV, but we have not been
told
if there has been any follow-up in that regard. In any event, both Mr. Anand
and
Mr. Khan were given adequate time and coverage by NDTV to explain their point
of
view, and they did. That they may or may not have come out trumps is another
matter altogether and does not concern us in the least ? it is for the
viewers
of the telecast to decide. Our limited concern is about the ?trial by media?
which we find has not happened in this case and so we leave it that. What is
the law on undercover operations?
81. Mr. Anand addressed us at length on the law relating to sting or
undercover operations. While we do not see the relevance of this for deciding
the merits of the issue before us, we are dealing with the decisions cited
since
this issue apparently arises quite frequently and our discussion may
contribute
to an understanding of the correct legal position. The broad contention of
Mr.
Anand is that a sting operation is unethical and that he was secretly trapped
by
NDTV and Mr. Kulkarni to say and do the things that he did.
82. To begin with, Mr. Anand referred to a passage from Regina v.
Broadcasting Standards Commission, ex p British Broadcasting Corporation, [2001]
1 QB 885 criticizing such an activity in the following words: ?It would be
departure from proper standards if, for example, the BBC without
justification attempts to listen clandestinely to the activities of a board
meeting. The same would be true of secret filming of the board meeting. The
individual members of the board would no doubt have grounds for complaint,
but
so would the board and the company as a whole.?
83. Similarly, reference was made to the following passage from Brannan v.
Peek, [1947] 2 All ER 572:
?The court observes with concern and disapproval the fact that the police
authority at Derby thought it right to send a police officer into a public
house
to commit an offence. It cannot be too strongly emphasized that, unless an
Act
of Parliament does so provide ? and I do not think any Act of Parliament does
so
provide ? it is wholly wrong for a police officer or any other person to be
sent
to commit an offence in order that an offence by another person may be
detected.
It is not right that police authorities should instruct, allow, or permit
detective officers or plain clothes constables to commit an offence so that
they
can prove that another person has committed an offence.?
84. This decision was followed in In re M.S. Mohiddin, AIR 1952 Madras 561
wherein it was stated:
?But I have held in several cases already that there are two kinds of traps
?a
legitimate trap?, where an offence has already been born and is in course,
and
?an illegitimate trap?, where the offence has not yet been born and a
temptation
is offered to see whether an offence would be committed, succumbing to it, or
not. Thus, where the bribe has already been demanded from a man, and the man
goes out offering to bring the money but goes to the police and the
magistrate
and brings them to witness the payment, it will be ?a legitimate trap?,
wholly
laudable and admirable, and adopted in every civilized country without the
least
criticism by any honest man. But where a man has not demanded a bribe, and he
is
only suspected to be in the habit of taking bribes and he is tempted with a
bribe, just to see whether he would accept it or not and to trap him, if he
accepts it will be ?an illegitimate trap? and, unless authorized by an Act of
Parliament, it will be an offence on the part of the persons taking part in
the
trap who will all be ?accomplices? whose evidence will have to be
corroborated
by untainted evidence to a smaller or larger extent as the case may be before
a
conviction can be had under a rule of Court which has ripened almost into a
rule
of law?
85. A similar view and sentiment was expressed in Rao Shiv Bahadur Singh
v. State of Vindhya Pradesh, AIR 1954 SC 322.
86. Reference was also made to erudite and academic articles on the subject,
but we are not inclined to discuss them in this judgment. The views of
various scholars, based on the law in some other countries, lead us to
conclude
as follows:
1. A sting operation by a private person or agency is, by and large,
unpalatable
or unacceptable in a civilized society. A sting operation by a State actor is
also unacceptable if the State actor commits an offence so that an offence by
another person is detected.
2. A State actor or a law enforcement agency may resort to hidden camera or
sting operations only to collect further or conclusive evidence as regards
the
criminality of a person who is already suspected of a crime.
3. The law enforcement agency must maintain the original version of the
actual
sting operation. Tampering with the original video or audio clips of a sting
operation may lead to a presumption of the spuriousness of the entire
operation.
4. A sting operation cannot be initiated to induce or tempt an otherwise
innocent person to commit a crime or entrap him to commit a crime.
5. Normally, if a private person or agency unilaterally conducts a sting
operation, it would be violating the privacy of another person and would make
itself liable for action at law.
6. A sting operation must have the sanction of an appropriate authority.
Since
no such authority exists in India, and until it is set up, a sting operation
by
a private person or agency, ought to have the sanction of a court of
competent
jurisdiction which may be in a position to ensure that the legal limits are
not
transgressed, including trespass, the right to privacy of an individual or
inducement to commit an offence etc.
87. The law in India in this regard is still in the process of development,
but we feel that the views expressed by us help in a better
understanding of the subject and implementation of the law.
88. In Bhupendra Singh Patel v. State (CBI), Cri. M.C. No.59/2004 decided
on 10th November, 2004 a first information report was lodged against a
journalist who conducted a sting operation in which he bribed the Additional
Private Secretary of a Union Minister of State with the avowed object of
exposing corruption at the highest level in government. While declining to
quash
the first information report, this Court held that immunity is given to a
bribe-
giver where he is unwilling to pay illegal gratification to a public servant
and
approaches the police to get the public servant trapped while accepting a
bribe.
However, in the case under review, the accused bribed the public servant on
three occasions and in not a single instance did he report the matter to the
police in advance, otherwise they could have laid a legally admissible trap
and
apprehended the bribe takers. To make matters worse, the accused did not
inform
the police even after the transaction was complete.
89. Similarly, in Shri Bharadwaaj Media Pvt. Ltd. v. State, W.P. (Crl)
No.1125/2007 decided on 27th November, 2007 this Court declined to quash a first
information report against a private television channel and some of its
officials who had conducted an undercover operation wherein a Member of
Parliament received money for raising questions in the House. This Court was of
the opinion that prima facie an offence had been committed by the bribe-
givers
as well as by the bribe-takers.
90. Learned counsel for Mr. Khan referred to an important decision of the
Supreme Court on the question of entrapment. In Ramjanam Singh v. State of
Bihar, AIR 1956 SC 643 it was said: ?Whatever the criminal tendencies of a
man may be, he has a right to expect that
he will not be deliberately tempted beyond the powers of his frail endurance
and
provoked into breaking the law; ?? it is one thing to tempt a suspected
offender
to overt action when he is doing all he can to commit a crime and has every
intention of carrying through his nefarious purpose from start to finish, and
quite another to egg him on to do that which it has been finally and firmly
decided shall not be done.
The very best of men have moments of weakness and temptation, and even the
worst, times when they repent of an evil thought and are given an inner
strength
to set Satan behind them; ?.?
91. This decision was cited for the purpose of contending that, at worst,
Mr. Khan had no ?evil? design and that it could be said that he was entrapped
into committing an indiscretion.
92. Reference was also made to Major E.G. Barsay v. State of Bombay, [1962] 2
SCR 195 to contend that in the case of an entrapment, it would not be
appropriate to rely on the testimony of a trap witness, since he is partisan
?
the evidence of a trap witness would need corroboration. In this context,
reference was also made to R v. Governor of Pentonville Prison, [1989] 3 All
ER
701, Mirza Akbar v. King-Emperor, AIR 1940 PC 176 and Natwarlal Sakarlal Mody
v.
State of Bombay, 26 (1984) DLT 64 and Kehar Singh v. State, (1988) 3 SCC 609
to
suggest that the evidence of a conspirator cannot be relied upon without
corroboration. We do not see the relevance of these decisions, particularly
since Mr. Khan is said to be the victim of a conspiracy and not a co-
conspirator. The evidence of a trap witness (Mr. Kulkarni in this case ?
assuming he is a trap witness) is not the sole basis on which notice has been
issued to the alleged contemnors. The evidence against the alleged contemnors
is
to be found in the chips and CDs ? and these need no corroboration if they
are
found to be authentic and not tampered with.
93. In R v Looseley, [2001] 4 All ER 897 the House of Lords dealt with
?fairness of proceedings? as occurring in Section 78 of the Police and Criminal
Evidence Act, 1984 and held that the expression ?is directed primarily at
matters going to fairness in the actual conduct of the trial.? This is not
limited to substantive fairness but also includes procedural fairness.
Therefore, if the admission of evidence has such an adverse effect on the
fairness of the proceedings, then the Court may exclude it. Among the factors
that the Court may take into consideration in this regard are the
circumstances
in which the evidence was obtained.
94. Among the more important decisions on the subject is Court on its own
motion vs. State, 2008 (100) DRJ 144 (for convenience referred to as the
School
teacher case). In this case, a television news channel aired a programme on
30th
August, 2007 in which it was shown that a school teacher was forcing a school
girl into prostitution. Subsequently, a crowd gathered at the school gate,
and
being aghast at the conduct of the teacher, they raised slogans and demanded
that she be handed over to them. In the commotion and mayhem that followed,
the
school teacher was physically attacked and her clothes torn. This incident
was
telecast nationwide and was also reported in the daily newspaper Hindustan
Times
on 7th September, 2007.
95. As a follow up action, the Delhi Government suspended the teacher and
then dismissed her from service.
96. The police investigated the allegations made against the school teacher
and it was revealed that someone, who had some monetary dispute with
her, in connivance with another person, hatched a plan to trap her in a
stage-
managed act of forcing girls into prostitution. The girl who was allegedly
being forced into prostitution was neither a school girl nor a sex worker but
a
journalist who wanted to make a name for herself. The whole episode was stage
managed and was nationally shown as a ?sting operation?.
97. Investigations revealed that the school teacher was not involved in any
prostitution racket and no evidence was found against her to support the
allegations of child prostitution. However, as a result of the sting
operation,
the reputation of the school teacher was irreparably damaged, her modesty was
outraged, she was physically manhandled and her clothes torn. In so far as
the
persons involved in the stage-managed operation are concerned, they are being
prosecuted for various offences and the TV channel was prohibited from
transmitting anything through cable television networks or any other platform
throughout the country for one month.
98. While disposing of the case, a Division Bench of this Court noted that
freedom of the Press is a valuable right but it carries with it a
responsibility
and a duty to be truthful and to protect the rights of others. The Division
Bench noted that entrapment of any person should not be resorted to and
should
not be permitted. Reference was made to a decision of the Supreme Court of
the
United States being Keith Jacobson v. United States, 503 US 540.
99. The United States Supreme Court observed that: (i) the State must not
originate a criminal design and induce an innocent person to commit a crime
so
that he may be prosecuted; (ii) if the State does so, it is its duty to prove
beyond reasonable doubt that the defendant was predisposed to commit the
criminal act prior to first being approached by government agents.
100. The Division Bench deplored the thought of inducing a person to commit
an offence which he is not otherwise likely to or inclined to commit and
then make it a part of a sting operation. The Division Bench observed that it
was permissible for the media to use tools of investigative journalism but
that
did not permit the media to induce a person to commit a crime.
101. On the suggestion of learned Amicus Curiae appointed by it, the Division
Bench proposed certain guidelines in respect of sting operations, which
are not necessary to be repeated here, but with which we generally agree.
102. The School teacher case is a classic example of the dangers of a sting
operation per se as well the weakness in our justice delivery system to
respond to a misdemeanor of this type expeditiously, effectively and
efficaciously. While the sting operation conducted on Mr. Anand and Mr. Khan may
be criticized on ethical grounds and as violating their privacy and may have
left them with a sense of having been deceived by Mr. Kulkarni, to say that
they
were trapped into indiscretions would certainly not be correct because the
tenor
of the conversations that they had with Mr. Kulkarni does not suggest that
they
were being led up the garden path. The conversations were, by and large and
in
the circumstances, quite normal and showed that Mr. Anand and Mr. Khan were
in
control of the conversations. Moreover, both Mr. Anand and Mr. Khan are
seasoned
lawyers with a tremendously long stint at the Bar and it is difficult to
imagine
that they would not have suspected anything amiss had the conversation with
Mr.
Kulkarni been anything but normal. The tragedy really lies not in the alleged
entrapping or cheating of Mr. Anand and Mr. Khan but in their willingness to
meet and converse with Mr. Kulkarni, when they, as seasoned lawyers, ought to
have known better. Furthermore, we have seen Mr. Anand himself and through
his
emissary negotiating the quantum of payment to Mr. Kulkarni to secure a
perceived advantage for his client by influencing him and thereby interfering
with the judicial process.
103. At this stage, we may deal with the contention urged on behalf of Mr.
Khan that he did nothing wrong in meeting with Mr. Kulkarni. It was submitted
that Mr. Khan was the Special Public Prosecutor and Mr. Kulkarni was a
witness
for the prosecution and it was, therefore, but natural for them to meet and
converse. Reliance was placed upon Hukam Singh v. State of Rajasthan, (2000)
7
SCC 490 and Banti v. State of Madhya Pradesh, (2004) 1 SCC 414.
104. In both the cited decisions the Supreme Court observed that the Public
Prosecutor was entitled to interview a witness to enable him (the Public
Prosecutor) to know the stand that the witness may adopt when examined in
Court.
Of course, there cannot be any quarrel with this proposition. However, it may
be
recalled that Mr. Kulkarni was not a potential witness for the prosecution
when
he met Mr. Khan in his chambers in Patiala House on 28th April, 2007 ? Mr.
Kulkarni had already been dropped as its witness by the prosecution. When he
met
Mr. Khan he was summoned as a Court witness. Therefore, the two decisions
relied
on do not assist Mr. Khan.
105. In any event, we cannot read too much into that meeting per se since
Mr. Kulkarni entered Mr. Khan?s chamber uninvited and without an appointment
or
a notice. What would one expect Mr. Khan to do in that event except to throw
Mr.
Kulkarni out or behave rather civilly? Mr. Khan chose the more dignified
course
and he certainly cannot be faulted for that. What he can be faulted for, if
at
all, is the conversation that he had with Mr. Kulkarni and we will consider
that
issue in due course.
106. We may mention here that the Press Complaints Commission in England
has drawn up a Code of Practice and item 7 thereof reads as follows:
?Journalists must not obtain or publish material obtained by using clandestine
listening devices or by intercepting private telephone conversations.?
107. We had noted earlier that Mr. Kulkarni had stated on affidavit that
the sting operation was, in a sense thrust upon him by Ms. Agarwal and that
she
?manipulated? the entire sequence of events with the intention of showing Mr.
Anand and Mr. Khan in a poor light. We do not wish to comment on the
affidavit
of Mr. Kulkarni. The affidavit was filed by him without any permission from
this
Court and without any direction having been given to him to do so. We also
feel
that any comment on the affidavit of Mr. Kulkarni may be capitalized on in
the
BMW case by either of the parties. We, therefore, refrain from saying
anything,
one way or another, on the contents of the affidavit. Can video recordings be
used as evidence? Can the contents of a chip be used as
evidence?
108. The crux of the matter really lies in the authenticity of the programme
telecast on 30th May, 2007 and in this regard, we are of the opinion
that Mr. Anand and the other noticees have really missed the point.
109. We all know that in so far as audio or visual evidence is concerned,
it is necessary to produce the original material. In the case of a
photograph,
the negative is necessary without which the photograph may not be relied on.
In
so far as taped material is concerned, Mr. Anand and learned counsel for Mr.
Khan cited several judgments that we will, of course, deal with.
110. In the case of digital recordings, such as the ones that we are
concerned with, the original is not the video footage but the chip or the
microchip on which the recording is made. To put it loosely, the chip or
microchip is the negative while the video footage is the photograph produced
from that negative. All original chips (except one) on which the recordings
were made are available with NDTV and were produced and we viewed the
contents
thereof. No contention was raised by anybody that the chips were tampered
with.
Issues of morphing or doctoring the video footage would certainly arise
provided
the original chips were missing or had been re-recorded on by wiping out the
original recording. That has not happened in the present case in any chip
(except one). Even if the video footage were doctored or morphed (as it can
be),
it would make no difference at all, as long as the original chips existed
because the original chips could be used to verify the contents of the video
footage. This is much like a doctored photograph ? its authenticity can be
easily verified from the negative. The problem would arise only if the
original
chip or the negative of a photograph were not available.
111. In the present case, since all the original chips (except one) are in
existence, we have no hesitation in accepting the genuineness and
authenticity
of the video footage which led to the telecast on 30th May, 2007. But, what
about the chip that has been re-recorded on, wiping out the original?
112. Mr. Anand made a reference to N. Sri Rama Reddy v. Shri V.V. Giri, AIR
1971 SC 1162 which was explained by Mukharji, J in Ram Singh v. Col. Ram
Singh, 1985 (Supp) SCC 611 as laying down the propositions that tape recorded
conversation is admissible in evidence and that if it contains the previous
statement made by a witness, it may be used to contradict his evidence before
the Court.
113. In Mahabir Prasad v. Surinder Kaur, AIR 1982 SC 1043 it was held that
a tape recorded conversation can only be relied upon as corroborative
evidence
of a conversation and in the absence of evidence of any such conversation,
the
tape recorded conversation is indeed no proper evidence and cannot be relied
upon.
114. Mr. Anand took us through Quamarul Islam v. S.K. Kanta, AIR 1994 SC
1733, The State v. Ravi, 2000 Cri LJ 1125 and Subhash Sharma v. Central
Bureau
of Investigation, 2004 I AD (Delhi) 526, Jayalakshmi Jaitly v. Union of
India,
99 (2002) DLT 448, Amar @ Bahadur v. State, 120 (2005) DLT 267, Asokan v.
State
of Kerala, 1982 Cri LJ 173, M.S. Narayana Menon v. State of Kerala, (2006) 6
SCC
39 and Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233 but these
cases
were either decided on the evidence recorded or they do not lay down any new
or
different principle than what has already been mentioned above. Consequently,
they are of no further value or assistance for our present purposes.
115. The sheet anchor of Mr. Anand?s submission on this topic (as also that
of learned counsel for Mr. Khan) is the conclusions given by Fazal Ali, J
in Ram Singh. It was held, in regard to the admissibility of a tape recorded
statement, as follows:
1. The voice of the speaker must be duly identified by the maker of the
record
or by others who recognize his voice. In other words, it manifestly follows
as a
logical corollary that the first condition for the admissibility of 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.
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 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.
5. The recorded cassette must be carefully sealed and kept in safe or
official
custody.
6. The voice of the speaker should be clearly audible and not lost or
distorted
by other sounds or disturbances.
116. Mukharji, J referred (without disagreement) to the conclusions in R
v. Maqsud Ali, [1965] 2 All ER 464 that tape recorded material was admissible
in
evidence provided the accuracy of the recording can be proved and the voices
recorded can be properly identified and that the evidence is relevant and
otherwise admissible. There cannot, however, be any question of laying down
any
exhaustive set of rules by which the admissibility of such evidence should be
judged. R v. Robson, [1972] 2 All ER 699 was a case in which the tape
recording
was held admissible for the following reasons: ?(i) the court was required to
do no more than satisfy itself that a prima facie
case of originality had been made out by evidence which defined and described
the provenance and history of the recordings up to the moment of production
in
court and had not been disturbed on cross-examination; in the circumstances
that
requirement had been fulfilled.
(ii) the court was satisfied, on the balance of probabilities, that the
recordings were original and authentic and their quality was adequate to enable
the jury to form a fair assessment of the conversations recorded in them and
should not be excluded on that account.?
117. It was held in Ram Singh that the tape recordings, ?as we have heard?
were misleading and could not be relied on because in most places they were
unintelligible and of a poor quality and of no use and so their potential
prejudicial effect outweighed the evidentiary value of the recordings.
118. Reference was made to Sumitra Debi Gour v. Calcutta Dyeing and Bleaching
Works, AIR 1976 Calcutta 99 wherein it was held, in connection with
regard to a tape recording without the knowledge and consent of the person
concerned, who may be unknowingly trapped into it, that: ?? anything which is
born of trickery or trapping or cunningness should be very cautiously and
carefully considered by the court before it is admitted and accepted.? On the
issue of stealthy tape recording it was observed in Joginder Kaur v. Surjit
Singh, AIR 1985 PandH 128 that such a recording ?proves nothing else than an
effort to create evidence.?
119. In R v. Stevenson, [1971] 1 All ER 678 it was held that, ?Just as in
the case of photographs in a criminal trial the original unretouched
negatives
have to be retained in strict custody so should original tape recordings.?
120. The sum and substance of all these decisions cited by Mr. Anand is that
the expose is either not ?evidence? that may be used against him or is
untrustworthy and unreliable.
121. On the other hand, learned Amicus pointed out, relying on Raja Ram Pal
that a bald denial of the contents of a video tape is not adequate to doubt
its authenticity - there should be material to show that the video clippings
are
doctored or morphed. This view was reiterated in Jagjit Singh v. State of
Haryana, (2006) 11 SCC 1. In R.M. Malkani v. State of Maharashtra, (1973) 1
SCC
471 it was noted that in Shri N. Sri Rama Reddy, Yusufalh Esmail Nagree v.
State
of Maharashtra, AIR 1968 SC 147 and S. Pratap Singh v. State of Punjab, AIR
1964
SC 72 a conversation or dialogue recorded on a tape recording machine was
accepted as admissible evidence. But, it was pointed out that such a
conversation is admissible provided: first, the conversation is relevant to the
matters in issue; second, there is identification of the voice; third, the
accuracy of the tape recording is proved by eliminating the possibility of
erasing the tape record. ?A contemporaneous tape record of a relevant
conversation is a relevant fact and is admissible under Section 8 of the
Evidence Act. It is res gestae. It is also comparable to a photograph of a
relevant incident. The tape recorded conversation is therefore a relevant
fact
and is admissible under Section 7 of the Evidence Act.? This is, of course,
subject to ascertaining the genuineness of the tape recording and its being
free
from tampering or mutilation.
122. Neither Mr. Anand nor Mr. Khan have doubted their voice in the video
clippings; they have not disputed that the video clippings contain their
images;
they have not disputed that the meetings in the video tapes took place with
Mr.
Kulkarni; they have not doubted the conversation that they had with Mr.
Kulkarni. We may note that Mr. Anand has pointed out some ?errors? in the video
footage such as the lips are not in sync with the words spoken at some
places;
there is a five second gap in the video footage; a lady suddenly appears
(rather
unclearly and fleetingly) when the video camera is switched on at one point
of
time; the counter suddenly jumps by about a thousand numbers; there is a
discrepancy in the time shown in the clock at one place; the reporter stated
on
affidavit that Mr. Kulkarni could not switch on/off the camera, but that is
belied by the fact that he switches off the camera when he goes to the
toilet;
at some places the voice is admittedly inaudible as is clear from the
transcript
provided by NDTV etc. Mr. Anand submitted that there are several more
discrepancies or mistakes in the video recording leading to the conclusion that
the videotapes were not reliable evidence. He further submitted that he has
challenged the authenticity of the video tapes by giving specific examples
and
has not given a bald or vague denial.
123. Assuming all this to be so, it really does not advance Mr. Anand?s case
(or for that matter of Mr. Khan) any further. This is because the original
chips (except one) are in existence and available. Therefore, even if the
video
footage is discarded, we need only view the original chips to decide whether
the
contents digitally recorded thereon make out a case of contempt of Court
having
been committed by the alleged contemnors.
124. As luck would have it, the only original chip that is not available
with NDTV is the one containing a recording (taken by a button camera carried
by
Mr. Kulkarni) of a meeting between Mr. Kulkarni and Mr. Khan in the latter?s
chamber in Patiala House Courts on 28th April, 2007. However, that meeting
was
recorded with two cameras ? one a button camera carried by Mr. Kulkarni and
the
other a bag camera carried by Mr. Deepak Verma of NDTV. There is no
discrepancy
between the two recordings ? both audio as well as visual - except that the
angle of the camera is naturally different. The button camera also carries a
personal conversation between Mr. Khan and Mr. Kulkarni just outside Mr.
Khan?s
chamber, but we are not concerned with that, except to a limited extent. We
are
primarily concerned with the conversation that takes place within the chamber
of
Mr. Khan and about this there can be no dispute since the conversation picked
up
by both the hidden cameras is the same. Additionally, in a subsequent
interview
given by Mr. Khan to NDTV on 31st May, 2007 (which is not denied by him) he
stated as follows:
?Barkha Dutt: Well, heads have already begun to roll after the NDTV expose. I
U
Khan the public prosecutor on the case, the man whose job it was to prove the
police allegations has been dropped by the Delhi Police as the prosecutor, he
is
likely to be replaced by Rajiv Mohan. Mr. Khan however told NDTV earlier in
the
day that while he was the man on the tape, that we have broadcast he believes
that he had done absolutely nothing wrong and the media interpretation of his
role is incorrect.
I U Khan to Anasuya Roy ?
I U Khan: I am not denying anything at all, I am not denying 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 Sahab? means the
big
officer, high officer of the 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, mischievously
and
calculatedly projected by you people.?
125. Under the circumstances, we have to proceed on the basis that the entire
video footage produced before us is genuine, authentic and unimpeachable
evidence. We also say this having viewed the original chips except one, which
was not preserved.
126. The fact that Mr. Anand was able to point out some discrepancies in
the video footage clearly suggests that he has been given full access to all
the
material and so he cannot make a grievance of non compliance with the
principles
of natural justice in the sense that he was not given an adequate opportunity
to
defend himself. That apart, (as noticed above) the discrepancies pointed out
by
him are not in the original chips but in the video recording made out of
those
chips. Even if we ignore the video recording, we are left with the original
chips which we have played back and which do not contain any significant or
material discrepancy.
127. It must be remembered that tape recorded material is concerned with
only one of our senses ? the sense of hearing, while video recorded material
is
concerned with two senses ? the sense of hearing and that of sight. To that
extent, the specific arguments that may be available to challenge the
authenticity of tape recorded material may not be applicable mutatis mutandis to
video recordings. In addition to demonstrating that the sound is tampered
with,
it must be shown that the images are also tampered with.
128. Looked at in this light, there can be no doubt about the relevance or
admissibility of the contents of the original chips which are then recorded
on
video footage. As observed in Robson the Court has to be prima facie
satisfied
as to the originality of the recordings. Even in Ram Singh the Supreme Court
heard the tapes and then held them to be unreliable. Following these two
decisions, and to give an opportunity to Mr. Anand and Mr. Khan to
demonstrate
to us the lack of integrity in the video recordings, we saw the video
recordings
in open Court (though on a Saturday) in their presence but found nothing odd
to
make us doubt the originality of the recordings or the contents thereof. Even
if
the ?offending? portions are removed from consideration, the sum and
substance
of the conversations and their gist are more than apparent.
129. That we need to move with the times and accept and recognize that
technology of the 1980s is quite different from the technology of this century,
is clear from a reading of State of Maharashtra v. Praful B. Desai, (2003) 4
SCC
601 where recording of evidence by video conferencing was held permissible in
law. It is true that the technology of this century also enables an expert to
doctor or morph video material, but there is no allegation in the present
case
that NDTV has doctored or morphed images for some purpose. A viewing of the
original chips and video recordings leaves us in no manner of doubt of the
genuineness and reliability of the footage. In view of the above, we have no
hesitation in rejecting the contention of Mr. Anand and Mr. Khan regarding
the
integrity of the video recordings and certainly that of the chips. How are
criminal contempt proceedings to be dealt with?
130. Over the years, the nature of criminal contempt proceedings has been
settled by various decisions of the Supreme Court. Nevertheless, Mr. Anand
and
learned counsel for Mr. Khan thought it necessary to take us through some key
judgments.
131. S. Abdul Karim v. M.K. Prakash, (1976) 1 SCC 975 laid down the
proposition that the standard of proof required to establish a charge of
criminal contempt is the same as in any other criminal proceeding. The
Supreme
Court did not go into the issue whether mens rea is an indispensible
ingredient
of the offence of contempt but observed that the Courts would be loathe in
punishing a contemnor if the act or omission complained of was not willful,
deliberate and, as mentioned in Debabrato Bandopadhyay v. State of West
Bengal,
AIR 1969 SC 189 ?It is only when a clear case of contumacious conduct not
explainable otherwise, arises that the contemnor must be punished?. This is,
of
course, distinguishable from a case where an innocent person is induced by
certain circumstances or factors to say something improper, which may perhaps
be
on the borderline of the law. (H.L. Sehgal v. State, ILR (1985) II Delhi
921).
132. In J.R. Parashar v. Prashant Bhushan, (2001) 6 SCC 735 it was held that
proceedings for criminal contempt of Court are quasi-criminal and summary
in nature. From this, two consequences follow: first, the alleged contemnor
must
be intimated the facts, with sufficient particularity, for which proceedings
are
intended to be launched to enable him to effectively defend himself; second,
if
there is any reasonable doubt of the existence of a state of facts, that
doubt
must be resolved in favour of the alleged contemnor. The expression
?sufficient
particularity? was stressed by learned counsel for Mr. Khan, who contended
that
the notice issued to his client was vague and lacked sufficient particulars.
In
this context reference was made to Manohar Joshi v. Damodar Tatyaba, (1991) 2
SCC 342 which was a case under the Representation of the People Act, 1951. It
was held that an allegation of corrupt practices during an election relates
to
an offence of a quasi-criminal nature. Therefore, not only must the
allegations
be specific, but the person called upon to face the charges should be
apprised
of the evidence against him so that he can meet the allegations.
Additionally,
it was held that a heavy burden rests upon a person alleging a corrupt
practice
to prove strictly all the ingredients of the charge. It was submitted that
the
general principles laid down would, mutatis mutandis, apply to a charge of
criminal contempt.
133. Learned counsel for Mr. Khan sought to introduce some principles of
criminal law regarding appreciation of evidence (both oral and documentary)
by
relying upon Harchand Singh v. State of Haryana, AIR 1974 SC 344, Chunni Lal
v.
The State, 2006 [2] JCC 878, Suraj Mal v. The State, AIR 1979 SC 1408,
Minakshi
Bala v. Sudhir Bala, JT 1994 (4) SC 158 and Vikramjit Singh v. State of
Punjab,
2007 [1] JCC 64. We are of the opinion that these decisions are not at all
relevant since we are not dealing with a criminal offence under the Indian
Penal
Code. Moreover, as already noted, contempt jurisdiction is a summary
jurisdiction and a trial is not called for unless it is unavoidable in view of
some peculiar facts.
134. On the burden of proof, reliance was placed upon Chhotu Ram v. Urvashi
Gulati, (2001) 7 SCC 530 and Mritunjoy Das v. Sayed Hasibur Rahaman,
(2001) 3 SCC 739 wherein it was noted that the burden of proof is guided by
the
principle ?he who asserts must prove?. One of the reasons for this, as
explained
in Re Bramblevale Ltd. [1969] 3 All ER 1062 is that contempt of Court is an
offence of a criminal character and a contemnor may be sent to prison for it.
It
must, therefore, be satisfactorily proved. If two equally consistent
possibilities exist, it cannot be said, beyond a reasonable doubt, that an
offence has been committed. Mritunjoy Das was followed in Bijay Kumar Mahanty
v.
Jadu, (2003) 1 SCC 644. [See also M.R. Parashar v. Dr. Farooq Abdullah,
(1984) 2
SCC 343 and Biman Bose v. State of West Bengal, (2004) 13 SCC 95]. Reliance
was
also placed upon V.G. Nigam v. Kedar Nath Gupta, (1992) 4 SCC 697 for the
proposition that willful conduct is a primary and basic ingredient of an
offence
of criminal contempt.
135. Two important conclusions have been given in Murray and Co. v. Ashok
Kumar Newatia, (2000) 2 SCC 367, namely, that the contempt jurisdiction is a
special jurisdiction to punish an offender for his contemptuous conduct or
obstruction to the majesty of the law and that what is necessary for the
imposition of a punishment is a substantial interference with the course of
justice. In Murray and Co. it was held (as in Dhananjay Sharma v. State of
Haryana, (1995) 3 SCC 757) that deliberately filing a false affidavit in
Court
or making a false statement on oath would also amount to a contempt of Court
if
it tends to cause obstruction in the due course of judicial proceedings or
impedes and interferes with the administration of justice.
136. Obviously, it is not in every case that action for contempt would be
necessary. Given the wide powers available with a Court exercising contempt
jurisdiction, it cannot afford to be hypersensitive and, therefore, a trivial
misdemeanor would not warrant contempt action. Circumspection is all the more
necessary because, as observed in Supreme Court Bar Association v. Union of
India, (1998) 4 SCC 409) the Court is in effect the jury, the judge and the
hangman; while in M.R. Parashar and H.L. Sehgal it was observed that the
Court
is also a prosecutor. Anil Ratan Sarkar v. Hirak Ghosh, (2002) 4 SCC 21
reiterates this.
137. Mr. Anand cited Bal Thackrey v. Harish Pimpalkhute, (2005) 1 SCC 254
for the purpose of explaining the procedure to be followed for registering a
criminal contempt petition. The Supreme Court approved the procedure laid
down
by this Court in Anil Kumar Gupta v. K. Suba Rao, ILR (1974) 1 Delhi 1. We
cannot see the relevance of this decision for our present purposes. We are
dealing with a suo motu notice for contempt of Court and not the registration
of
a criminal contempt petition.
138. On another aspect of the procedure to be followed, reference was made
to Daroga Singh v. B.K. Pandey, (2004) 5 SCC 26 for the proposition that the
principles of natural justice are required to be followed and if the alleged
contemnor desires to cross examine a person who has filed (anything) against
him, he may be permitted to do so. Reference was also made to M/s Bareilly
Electricity Supply Co. Ltd. v. The Workmen, 1971 (2) SCC 617 and Union of
India
v. Varma, AIR 1957 SC 882 to contend that even if the principles laid down in
the Evidence Act do not apply to contempt proceedings, the principles of
natural
justice must be followed such that the decision is not liable to be impeached
on
the ground that the procedure followed was not in accordance with that which
obtains in a Court of law. Moreover, this does not imply that what is not
evidence can still be relied upon. ?? no materials can be relied upon to
establish a contested fact which are not spoken to by persons who are
competent
to speak about them and are subjected to cross-examination by the party
against
whom they are sought to be used.? Relying upon L.K. Advani v. Central Bureau
of
Investigation, 66 (1997) DLT 618 it was submitted that only that ?evidence?
can
be relied upon which is capable of being converted into legal evidence.
Relying
on Subhash Chand Chauhan v. C.B.I., 2005 [1] JCC 230 it was submitted that if
some evidence is unproved, it cannot be relied upon. This submission was made
by
Mr. Anand in the context of an application being Crl. M. No. 13782 of 2007
filed
by him to cross examine the reporter of NDTV. We will be dealing with this
application in due course.
139. It was emphasized by Mr. Anand that if denials by an alleged contemnor
are vague or general, then they should not be accepted; but in the
present case, he has specifically denied the allegations made against him in
considerable detail and so if an opportunity is not given to him to cross-
examine the reporter, he would not be getting a fair deal and the principles
of
natural justice would be violated. Reliance in this regard was placed on
Jagjit
Singh v. State of Haryana, (2006) 11 SCC 1.
140. Learned Amicus cited Baradakanta Mishra v. The Registrar of Orissa High
Court, (1974) 1 SCC 374 wherein the Supreme Court noted that all the three
clauses of Section 2(c) of the Contempt of Courts Act, 1971 that define
?criminal contempt? define it in terms of obstruction of or interference with
the administration of justice. It was further noted that broadly the Act
accepts
that proceedings in contempt are always with reference to the administration
of
justice. With reference to the three sub-clauses of Section 2(c) of the Act,
the
Supreme Court observed that sub-clauses (i) and (ii) deal with obstruction
and
interference respectively in the particular way described therein, while sub-
clause (iii) is a residuary provision by which any other type of obstruction
or
interference with the administration of justice is regarded as a criminal
contempt. A little later in the decision (citing R v. Gray [1900] 2 QB 36) it
was said that the contempt jurisdiction should be exercised ?with scrupulous
care and only when the case is clear and beyond reasonable doubt.?
141. In Rachpudi Subba Rao v. Advocate General, (1981) 2 SCC 577 the Supreme
Court considered the scope of the expressions ?administration of
justice? appearing in sub-clause (iii) of Section 2(c) of the Act and ?course
of
judicial proceedings? appearing in sub-clause (i) and (ii) thereof. It was
observed that the expression ?administration of justice? is far wider in
scope
than the expression ?course of judicial proceedings?. The words ?in any other
manner? further extend its ambit and give it a residuary character. It was
emphasized that: ?although sub-clauses (i) to (iii) describe three distinct
species of ?criminal contempt? they are not mutually exclusive. Interference
or
tendency to interfere with any judicial proceeding or administration of
justice
is a common element of sub-clauses (ii) and (iii).?
142. ?Administration of justice? has been explained in Attorney-general v.
Times Newspapers Ltd., [1973] 3 All ER 54 in the speech of Lord Diplock that
we
have extracted above.
143. Influencing someone who might be called as a witness to alter his
evidence or to decline to testify would amount to interference in the
administration of justice. It was further said, ?Contempt of court is punishable
because it undermines the confidence not only of the parties to the
particular
litigation but also of the public as potential suitors, in the due
administration of justice by the established courts of law.?
144. In Contempt of Court by C.J. Miller (3rd edition) it is said on page
324 that ?Interference with the administration of justice may also be
occasioned
through conduct which carries a substantial risk of influencing a witness in
an
improper manner.? It is further stated that, ?It has long been clear that it
[is] an offence at common law to use threats or persuasion to witnesses to
induce them not to appear in courts of justice, or to endeavour to persuade a
witness to give evidence in a particular sense or to alter the evidence
already
given.?
145. Learned counsel for NDTV referred to Balogh v. St. Albans Crown Court,
[1975] 1 QB 72 which is a rather interesting case that dealt with
contempt in the face of the Court. This was sought to be equated with the
power
to ?to make an order of committal of its own motion against a person guilty
of
contempt of court.? But that really begged the question: what is ?of its own
motion?? Lord Denning MR referred to some cases and commentaries such as
those
of Blackstone and Oswald, and concluded that contempt in the face of the
Court
led to instant punishment or punishment on the spot, unlike punishment
rendered
on motion. It was never confined to conduct which a judge saw with his own
eyes
and so contempt in the face of the Court is the same thing as contempt which
the
Court can punish of its own motion and it really means contempt in the
cognizance of the Court. In other words, contempt ?of its own motion? is a
species of contempt in the face of the Court. Some instances were given of
this
such as contempt (i) in the sight of the Court, (ii) within the court room
but
not seen by the judge, and (iii) at some distance from the Court. In this
context it was said that the power to punish for contempt is a summary power,
it
is a great power and it is a necessary power. Striking a note of caution, the
Court observed:
?As I have said, a judge should act of his own motion only when it is urgent
and
imperative to act immediately. In all other cases he should not take it upon
himself to move. He should leave it to the Attorney-General or to the party
aggrieved to make a motion in accordance with the rules ?. The reason is so
that
he should not appear to be both prosecutor and judge: for that is a role
which
does not become him well.?
146. Stephenson LJ agreed that the remedy of contempt is a summary remedy,
but ?when a judge of the High Court or Crown Court proceeds of his own
motion,
the procedure is more summary still. It must never be invoked unless the ends
of
justice really require such drastic means; it appears to be rough justice; it
is
contrary to natural justice; and it can only be justified if nothing else
will
do.?
147. In Amrik Singh v. State, 1971 (3) SCC 215 the Supreme Court emphasized
that it is the duty of the Court, brevi manu, to prevent in contempt
interference in the administration of justice. Similarly, in Daroga Singh v.
B.K. Pandey, (2004) 5 SCC 26 the Supreme Court noted that it has ?repeatedly
been held? that the procedure prescribed either under the Code of Criminal
Procedure or under the Evidence Act is not attracted to proceedings under the
Contempt of Courts Act. ?The High Court can deal with such matters summarily
and
adopt its own procedure. The only caution that has to be observed by the
Court
in exercising this inherent power of summary procedure is that the procedure
followed must be fair and the contemners are made aware of the charges
leveled
against them and given a fair and reasonable opportunity.?
148. Referring to Vinay Chandra Mishra, In re (1995) 2 SCC 584 the Supreme
Court held that ?? criminal contempt no doubt amounts to an offence but it is
an
offence sui generis and hence for such an offence, the procedure adopted both
under the common law and the statute law in the country has always been
summary.?
149. Finally, learned Amicus drew our attention to Reliance Petrochemicals
Ltd. v. Indian Express Newspapers, (2004) 9 SCC 580 wherein it is said, ?The
question of contempt must be judged in a particular situation. The process
of due course of administration of justice must remain unimpaired. Public
interest demands that there should be no interference with judicial process
and
the effect of the judicial decision should not be pre-empted or circumvented
by
public agitation or publications. It has to be remembered that even at
turbulent
times through which the developing countries are passing, contempt of court
means interference with the due administration of justice.?
150. From the decisions cited before us, the following principles emerge
as important considerations in dealing with cases of criminal contempt of
Court:
1. The contempt jurisdiction of a Court is sui generis; it is a special
jurisdiction and a summary jurisdiction. The Court is in effect the jury, the
prosecutor, the judge and the hangman and so the jurisdiction has to be
exercised with great caution and circumspection.
2. Action for contempt may be taken only if there is a substantial
interference
in the administration of justice. A Court should not be hypersensitive and
take
umbrage at every trivial misdemeanor. A Court should punish for contempt only
if
the act or omission complained of is deliberate and contumacious.
3. Proceedings for contempt are quasi-criminal in nature. While it may not be
necessary to prove mens rea, but the standard of proof is that of proof
beyond a
reasonable doubt. This is because an alleged contemnor may be sent to prison
for
criminal contempt of Court.
4. Since proceedings for contempt of Court are quasi criminal in nature, the
alleged contemnor must be duly informed, with sufficient particularity, of
the
allegations against him so that he may effectively defend himself.
5. The burden of proof is on the person asserting that there is a contempt of
Court.
6. The Court is entitled to devise its own procedure for dealing with
contempt
of Court, and the generally accepted criminal law principles or the Evidence
Act
are not applicable to such proceedings. However, the principles of natural
justice must be adhered to. Summary justice may be rough justice, but it
should
be fair.
151. We will, of course, keep these principles in mind while deciding whether
any of the noticees have committed contempt of Court. But before we do
that, it is necessary to deal with the submission of learned counsel
appearing
for Mr. Khan that the notice of contempt was vague or lacked sufficient
particularity.
152. It may be recalled that notice was issued on 7th August, 2007 keeping
in mind the provisions of Article 215 of the Constitution and Section 2(c) of
the Contempt of Courts Act, 1971. Article 215 of the Constitution reads as
follows:
?215. High Courts to be courts of record - Every High Court shall be a court
of
record and shall have all the powers of such a court including the power to
punish for contempt of itself.?
153. Section 2(c) of the Contempt of Courts Act, 1971 reads as follows: ?2.
Definitions: - In this Act, unless the context otherwise requires, (a) xxx
(b) xxx
(c) criminal contempt? means the publication (whether by words, spoken or
written, or by signs, or by visible representations, or otherwise) of any
matter
or the doing of any other act whatsoever which ? (i) scandalises or tends to
scandalise, or lowers or tends to lower the authority of any court ; or
(ii) prejudices, or interferes or tends to interfere with, the due course of
any
judicial proceeding ; or
(iii) interferes or tends to interfere with, or obstructs or tends to
obstruct,
the administration of justice in any other manner; (d) xxx?
154. Nobody has any doubt that the notice was not issued in contemplation
of sub-clause (i) above and so we are really concerned with sub-clauses (ii)
and
(iii) of Clause (c) above.
155. A perusal of the order dated 7th August, 2007 (which is rather detailed)
would show that it was passed after due deliberation and hearing
learned Amicus. The order details the full facts of the case, including the
material then before the Court, and it is only thereafter that the provisions
of
Clause (c) above were invoked. Certain facts in this regard are undisputed.
Firstly, that the telecast of 30th May, 2007 concerned itself with a pending
trial, namely, the BMW case; secondly, the telecast strongly suggested that
Mr.
Khan and Mr. Anand were colluding in the BMW case and that Mr. Kulkarni was
known to both of them, perhaps more to Mr. Anand than to Mr. Khan; thirdly,
the
impression given by Mr. Anand and Mr. Khan in their conversations with Mr.
Kulkarni leaves no manner of doubt that Mr. Kulkarni was knowingly in touch
with
both of them, which is unusual for a person who was a witness for the
prosecution; fourthly, if the reported contents of the telecast are true, then
the conduct of Mr. Khan and Mr. Anand has a direct impact on the BMW case so
as
to attract sub-clause (ii) concerning a judicial proceeding, or in any event
sub-clause (iii) concerning the administration of justice as broadly defined
in
Section 2(c) of the Contempt of Courts Act, 1971 and; finally, the overall
impression conveyed by the telecast was that Mr. Kulkarni was suborned.
156. What is important to appreciate in the present case is that it is a
rather unusual one, particularly in terms of the material available. In run
of
the mill cases of contempt of Court, there is usually a complainant who
brings
forth either oral or documentary evidence that relates to the past conduct of
the alleged contemnor. Such material can be the subject of varying
interpretations depending upon its presentation. However, in the present case,
even though the subject matter is the past conduct of the noticees, the
evidence
is available in an audio-visual form and is in a sense ?live? so that it can
be
viewed at any time, and one does not have to go by impressions or affidavits
alone. A playback of the CDs and its visual presentation cannot leave anyone
in
doubt about the nature of the alleged contempt. Whether the conduct of Mr.
Anand
and Mr. Khan is contemptuous or not is another matter altogether, but there
can
be no doubt that the contents of the CDs vividly portray the contempt alleged
to
have been committed by them. This is a case where, because of the nature of
the
material available, we cannot apply traditional defences of vagueness or lack
of
sufficient particularity ? the alleged contempt is very much before our eyes
and
within our hearing as also that of the noticees. The noticees have also
viewed
the contents of the original chips as well as the contents of the CDs and
they
are, therefore, fully aware of not only what has transpired, but also the
basis
on which notice was issued to them by this Court. Under the circumstances,
they
cannot claim to be blissfully unaware or feign ignorance of the offence that
they are alleged to have committed, nor can they successfully complain of
vagueness or lack of material particulars concerning their conduct or
otherwise
disabling them from effectually defending themselves ? the entire material is
available to them in an audio-visual form. Actually, the noticees Mr. Khan
(through his learned counsel) and Mr. Anand himself have made elaborate
submissions in their attempt to explain their spoken words, gestures,
expressions as they appear in the video footage. For instance, Mr. Anand (in
respect of a portion of the conversation that we will advert to a little
later)
has urged that his quoting double the amount demanded by Mr. Kulkarni was
only
to mock him and to suggest that he was only joking. Similarly, Mr. Khan
sought
to explain the cordial conversation that he had with Mr. Kulkarni (outside
his
chamber in Patiala House Courts) including the offer of drinks as an attempt
to
humour him on account of the intimidation and insecurity felt by him due to
the
presence of Mr. Deepak Verma. It is, therefore, evident that full opportunity
has been provided to the noticees and they have availed of this full
opportunity
to urge each and every defence that could be urged. The contention of learned
counsel for Mr. Khan is, therefore, rejected.
157. We also need to deal with various applications filed by Mr. Anand. In
Crl. M. No. 13782 of 2007 Mr. Anand has sought leave to cross-examine Ms.
Agarwal. It is the submission of Mr. Anand that there are material
contradictions in the affidavits of Ms. Agarwal in regard to the sequence of
events and the attendant circumstances relating to the sting operations. In
our
opinion, we are not directly concerned with the affidavits filed by Ms.
Agarwal
except to the extent that she has placed on record a true copy of the
contents
of the chips, that is, the video recording of the sting operations and the
transcripts of the conversations that had taken place between the dramatis
personae. The chips are the primary material and there is nothing to suggest
that in her affidavits Ms. Agarwal adds to or detracts from the actual
contents
of the chips. We have only to see the contents of the chips (which we have)
and
decide whether the noticees have committed contempt of Court or not. Cross-
examination of Ms. Agarwal will not add to the material on record nor will it
subtract anything from it.
158. Why the sting operations were conducted is strictly not our concern.
We have expressed our view that a sting operation by a private agency,
without
any sanction from anyone would be unpalatable and unethical and we need not
add
anything more to it. In the present case, public airing of the sting
operations
has served a public purpose, while in the School teacher case, it has not.
But,
that is not (and cannot be) the test of the ethical propriety of conducting a
sting operation. The application is, accordingly, rejected.
159. Crl. M. No. 4010 of 2008 is an application for initiating proceedings
for perjury against NDTV and Ms. Agarwal for deliberately making false
statements on affidavit and fabricating evidence. It is also alleged that the
non-applicants have violated the undertaking given to this Court that the
chips
would be kept without destruction. We are not satisfied that NDTV or Ms.
Agarwal
deliberately made any false statement on oath so as to mislead us. There is
also
nothing to suggest that they fabricated false evidence, either for this
purpose,
or otherwise. We have found that the chips have not been tampered with and
that
is our only concern. If the chips are tampered with or destroyed, it may well
be
to the advantage of the noticees and, therefore, we feel that they should not
be
unduly worried about the non-preservation of one of the original chips.
160. Crl. M. No. 4011 of 2008 is an application for a direction to learned
counsel for NDTV to disclose the name of the employee or concerned officer of
NDTV on whose instructions Mr. Harish Salve, Senior Advocate furnished a
false
clarification in this Court on 24th September, 2007. Ex facie, this
application
deserves to be rejected.
161. Crl. M. No. 4012 of 2008 is an application for sending the original
chips and CDs for forensic examination to ensure that they are not edited,
fabricated or tampered with.
162. Crl. M. No. 4150 of 2008 is an application for placing all the chips
before this Court and for a direction to prepare a copy of the chips for
being
given to the applicant.
163. The contents of all these applications suggest that they have been moved
in desperation and for exerting pressure on NDTV or Ms. Agarwal. The
application concerning the forensic examination of the chips has been filed
apparently to delay the proceedings, since no substantial submissions were
made,
as we have noted above, challenging the authenticity of the original chips.
As
far as the CDs are concerned, we are not solely relying on them oblivious of
the
contents of the chips. The original chips are in the safe custody of NDTV and
it
is not necessary that they should be filed in Court. The contents of these
chips
have been viewed by the noticees and the CDs containing their contents have
been
handed over to them. To this extent, the noticees surely cannot have any
grievance. Consequently, we reject all these applications.
164. We now propose to deal with the issue squarely facing us: do the
contents of the chips disclose an offence of criminal contempt of Court having
been committed by the noticees?
ON MERITS
165. Before discussing the merits of the conduct of the alleged contemnors,
it is appropriate to state a few conclusions that we have arrived at
after hearing all concerned and after viewing the original chips and video
recordings.
166. First, the material has to be considered as a whole, rather than in
disjunctive bits and pieces. Therefore, we have to decide the matter on the
basis of the overall impact of the material, rather than on its sentence by
sentence analysis.
167. Second, the conversations between Mr. Kulkarni and the alleged
contemnors largely concerned the BMW case, even though the case was not
specifically mentioned in the discussions. In fact, no one raised any doubt
about the conversations relating to the BMW case and all the hearings took
place
on this factual premise.
168. Third, Mr. Kulkarni was quite familiar with the three alleged contemnors
and each one of them was aware of this.
169. Fourth, for finding the alleged contemnors guilty of criminal contempt,
it is not necessary for us to go so far as to conclude that they had
prejudiced or interfered with or obstructed the due course of the judicial
proceeding or interfered with or obstructed the administration of justice in
any
other manner. It is enough for our purposes if there is sufficient material
to
show that their conduct was such that it had the tendency to interfere with
the
due course of the judicial proceeding or had the tendency to interfere with
or
obstruct the administration of justice in any other manner. It is, therefore,
not at all necessary for us to answer the question whether the alleged
contemnors had entered into any conspiracy in respect of the BMW case.
170. The first, second and fourth conclusions really need no elucidation.
In so far as the third conclusion is concerned, relevant portions of the
conversations between the alleged contemnors would clearly bring out the
familiarity that Mr. Kulkarni had with them and that each one of them was
aware
of this. Having said this, we also need to study the material before us to
determine whether any of the noticees are guilty of criminal contempt. We
propose to simultaneously attempt both.
171. The first sting operation is the meeting that Mr. Kulkarni had with
Mr. Khan on 28th April, 2007 in the Patiala House Court complex. Soon after
Mr.
Kulkarni enters the chamber of Mr. Khan, he is introduced by Mr. Khan to the
others present in the chamber in the following words: Mr. Khan: Meet
Kulkarni. He is the prime witness in the BMW case. He is our star
witness and he is a very public-spirited and devoted man, and incidentally he
was in Delhi on the day when this unfortunate incident happened. He was going
on
foot to the Nizamuddin Railway station.
172. There is then a conversation concerning ?Bade Saheb? which we propose
to deal with in detail a little later. The conversation in regard to Bade
Saheb
runs as follows:
Mr. Khan: Ab court ne (coughs) we dropped you ? court ne? (unclear). Mr.
Kulkarni: No, no, you ? I think the state told you to drop, right, if I?m
not wrong?
Mr. Khan: Those were the instructions I received from the Headquarters and
that?s why I got the SHO statement recorded that ?on the instructions of the
SHO
and the ACP, such and such witness has been dropped?. Then how can I make a
statement? My clients are Delhi Police. Whatever instructions they will give,
I
will act upon it. I was very keen to examine you. Mr. Kulkarni: Ya, I know
that because I still remember, still remember. Mr. Khan: Inhone mera haath
dabaya, khoob dabaya. Maine kaha main kya karoo,
agar individual client ho to samjha bhi lo, department hai. (They pressed me
hard, very hard. What can I do ? it is possible to explain to an individual
client, but this the department). Mr. Khan: Bade Saheb se mile? Nahi mile?
Mukalat hi nai hoi? (Did you meet Bade
Saheb? You didn?t meet him? You have not met him)? Mr. Kulkarni: Ab yeh kya
jhanjhat aur? (What is this new problem)? Mr. Khan: Nah nahi kuch nahi hoga. Ab
High Court mein unhone petition file kar
di hai ki Kulkarni ki statement xxx. (Nothing will happen. They have
petitioned
the High Court that Kulkarni?s statement ?).
173. There is also a personal conversation recorded by Mr. Kulkarni?s button
camera (which is not denied by Mr. Khan) wherein Mr. Khan invites Mr.
Kulkarni apparently to his residence (which is accepted by Mr. Kulkarni) for
a
drink of good scotch whisky. One of the topics that Mr. Kulkarni wanted to
discuss, and take the advice of Mr. Khan, was on the question whether he
should
accept the summons calling him as a Court witness. In fact, the conversation
begins and ends on this note as is clear from the following. The conversation
runs as follows:
Mr. Kulkarni: Summons Bombay challa gaya thaa, ab waha se reject ho ke ayaa
hua
hai. Ab loon ke na loon? Baad me mere ko raat ko ghar pe?. (The summons had
gone
to Bombay but it has come back. Should I accept it or not? Later in the
evening
at the house??).
Mr. Khan: Tum mere ko miloge kab, yeh batao? (Tell me, when will you meet
me?)
Mr. Kulkarni: Aap batao kyonki mere ko ? SHO se meri baat hui hai. Aap usko ?
(You let me know because ? I have spoken to the SHO?). Mr. Khan: Tum thehre
kahan ho? (Where are you staying)? Mr. Kulkarni: Main to thehra hoo out of
Delhi. Mr. Khan: Out of Delhi?
Mr. Kulkarni: Out of Delhi, haan. Mr. Khan: Sham ke keh baje aaoge? (At what
time will you come in the evening)?
Mr. Kulkarni: Aaj nahi aaonga ? main koi zaroor ? sham ko. Sunday aaram rehta
hai aur ? (I will not come today. ?. Sunday is relaxed). Mr. Khan: Sunday ko
kis waqt aaoge? (At what time will you come on Sunday)?
Mr. Kulkarni: Aap batao mere ko. (You tell me). Mr. Khan: Aapko kaun time
suit karta hai? (What time suits you)? Mr. Kulkarni: Koi bhi. (Anytime). Mr.
Khan: Saat aur aath ke darmiyan? (Between 7 and 8)? Mr. Kulkarni: Haan. Theek
hai. (Yes, OK). Mr. Khan: Kal xxxx (not intelligible). Mr. Kulkarni: Lekin kisi
ko batao mat. (But don?t tell anybody). Mr. Khan: Nahi ji. Sawal hi nahi paida
hota. (No question about it). Mr. Kulkarni: Na, na.
Mr. Khan: Aur tumhare liya bahut badhiya scotch rakhi hui hai maine. (I have
some very good scotch for you).
Mr. Kulkarni: Scotch ?
Mr. Khan: Bahut badhiya. (Very good). Mr. Kulkarni: Acha. Baki sab khairiyat
sab? (Is everything OK)? Mr. Khan: Sab khairiyat. Xxx Khuda ka xxx (Everything
is OK). Mr. Kulkarni: Chalo. Kal mulakat hogi. (We will meet tomorrow). Mr.
Khan: Saat aur aath ke darmiyan. ([Come] Between 7 and 8).
174. The conversation ends in this note: Mr. Kulkarni: Main, vese meri K.K.
Paul se baat hui hai, lekin maine abhi tak
nahi bola hoo. I have not received summons at all. Woh mere ko bata dena. (I
had
a talk with K.K. Paul [the Police Commissioner] but I have not told him. I
have
not received the summons at all. You tell me [what to do]). Mr. Khan: Kal tum
aajao. (Come tomorrow). Mr. Kulkarni: Main ? huh? Woh hamare dono ki baat hogi.
(That will be between
us).
Mr. Khan: Theek hai. (OK).
175. In the second sting operation at the Indira Gandhi International Airport
on 6th May, 2007 the conversation between Mr. Kulkarni and Mr. Anand is
as follows:
Mr. Kulkarni: Ab kya strategy banana hai batao. (Tell me what should be the
strategy)?
Mr. Kulkarni: Maine message bheja tha Khan saab ke paas ... aapko shayad mila
hoga. (I had sent the message to Mr. Khan. You may have received it). Mr.
Anand: Haan ? mil gaya tha. (Yes, I received it).
176. There is then some talk about money and the cross-examination of Mr.
Kulkarni. The conversation in this regard is as follows: Mr. Anand: Haan ab ?
ab mujhe batao? Ab batao mere ko. (Now tell me). Mr. Kulkarni: Mujhe bola dhai
crore doonga ? aap batao mere ko. (He told me that
he will give two-and?a-half crore. You advise me). Mr. Anand: Hain?
Mr. Kulkarni: Dhai crore.
Mr. Anand: Tu paanch crore maang le. (You ask for five crore). Mr. Kulkarni:
Mein paanch crore maang leta hoo. (I will ask for five crore).
Mr. Anand: Tere ko cross-examine maine zaroor karna hai. (I will definitely
cross-examine you).
Mr. Kulkarni: Aur doosri baat ? cross-examine aap karoge mere ko? (Another
thing
? you will cross-examine me)? Mr. Anand laughs.
177. There is also some conversation concerning a meeting with Mr. Khan and
this is as follows:
Mr. Anand: Any how tum Khan sahab se baat kar lo. (You talk to Mr. Khan).
Mr. Kulkarni: Unko bolna ? aap unko phone kar ke bolna main aa jaunga ? mere
se
baat kar lena kyunki mera aur aapka milna theek nahi hai. (You phone him up
and
tell him that I will be coming and that he should speak to me, because it is
not
proper for us to meet).
Mr. Anand: Nahi ?
Mr. Kulkarni: Jab bhi mereko zaroorat padegi main ghar pe aa jaunga, mujhe
pata
hai ? (Whenever it is necessary, I will come to your house). Mr. Anand: Chalo
let me come back tomorrow evening, you come and meet me in the
night ? in the farm ? don?t meet me outside ? Mr. Kulkarni: Nahi aaj jaroori
tha isliye main mila ? nahi to main ? I avoid it.
(Today it was necessary that is why I met you). Mr. Anand: Nahi farm pe
milna. (Come to the farm). Mr. Kulkarni: Aur doosri baat ? yeh inhe bhi jante ho
... yeh dekho its Commando
? ok. (This is not intelligible). Mr. Anand: Ya, tomorrow evening, bye!
178. In the third sting operation on 8th May, 2007 in Mr. Anand?s car, with
regard to Mr. Khan, the relevant conversation between Mr. Anand and Mr.
Kulkarni runs like this:
Mr. Kulkarni: Yeh log kya karte hai, pata hai aapko. (Do you know what these
people do?)
Mr. Anand: Arre bhaiyya ... unko karne do jo ? mujhe to jo bataya hua hai woh
bata diya maine ?. Acha Khan ki to ghar ki baat hai. (Let them do [what they
want]. I have told [you] what was told to me. [The next sentence is
colloquial
and therefore difficult to translate, but it conveys that Mr. Khan is a part
of
the family].
Mr. Kulkarni: Haan vo to Khan sahab ke apne ghar ki baat hai. (Yes, Mr. Khan
is
a part of the family).
Mr. Anand: Yeh to tum usko keh nahi sakte ho ki tumhe paise mil rahe hain.
(But
you cannot [should not?] tell him [Mr. Khan] that you are getting paid).
179. The relevant conversation between Mr. Anand and Mr. Kulkarni with regard
to the petition filed in the High Court challenging the summoning order
under Section 311 of the Cr.P.C. is as follows: Mr. Kulkarni: Kal kya mereko
nikaal rahe ho kya ? 311 se? (Will you get me out
of the 311 issue tomorrow)?
Mr. Anand: Nikaal do? (Should I take you out)? Mr. Kulkarni: Nahi, nahi mat
nikalna. (No, don?t). Mr. Anand: Nahi nikalta. (I won?t take you out). Mr.
Kulkarni: Nahi, nahi mat nikalna? withdraw karva do na aap? jab main aapke
saath hoo, jo marzi karne ke liye tayyar hoo. To yeh kaye ke liye High Court
main laga diya aapne? Aur mere upar aapko itna bhi bharosa nahin hai kya?
Theek
hai, gussa ho jata hoo?. (No, don?t. Have it withdrawn. I am with you and
willing to do whatever you want. Then why has this [petition] been filed in
the
High Court? Do you not have faith in me? OK, I get angry sometimes?). Mr.
Anand: Nahi, nahi. (No).
Mr. Kulkarni: Lekin aana hai? depose karna hai. (I have to depose). Mr.
Anand: Ab usse kya baat karni hai?batao? Reasonable baat karo. (What is to
be said to him? Be reasonable).
Mr. Kulkarni: Aap decide karo. (You decide). Mr. Anand: Tum decide karo. Woh
to you decide. (You decide).
180. In the context of receiving the Court summons, the conversation between
Mr. Kulkarni and Mr. Anand is as follows: Mr. Kulkarni: Bus baat hi kuch nahi
... Patiala House Court main jakar meine de
diya ? Khan sahab ne vo din mereko summon lene ke liye mana kar diya ? ab
theek
hai vo ? vo to obviously hona hi tha ? ab mereko message pahuchana tha ? vo
pahuch gaya. (That day Mr. Khan told me not to accept the summons. I had to
convey a message and that has been conveyed). Mr. Anand: Toh liya kya summon.
(So did you take the summons?) Mr. Kulkarni: Main kahan se summon liya ? bilkul
nahi. (No, I did not take the
summons).
Mr. Anand: To summon nahi liya abhi tak? Mr. Kulkarni: Na.
Mr. Anand: So you have not taken the summon? Mr. Kulkarni: Na ... not at
all... jab tak aap nahi bataoge, Khan sahab nahi
bataenge tab main summon kaise lu?.? (No, not at all. Until you or Mr. Khan
advise me, how can I take the summons?). Mr. Anand: How did Ramesh Gupta
inform him that you have taken the summons?
Mr. Kulkarni: Ab yahi baat to yahi hai na ? maine summon nahi liya hai ? aap
pata kar lo ? maine summon nahi liya hai ? jab vahan Bombay main jake ?
unhone
phir vahin panga chaloo kar diya na. (I have not taken the summon. You may
find
out).
181. In the context of the deposition to be made by Mr. Kulkarni, Mr. Anand
says,
Mr. Anand: I?m out of touch ? I?m not in trial ? I?m in High 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 me that day. Don?t be silly. Mr. Kulkarni:
Kitna mangoo? (How much should I ask for)? Mr. Anand: Chodo na ? baat samjha kar
yaar ???. (Leave it. Try to understand
??.)
182. With reference to the meeting that Mr. Kulkarni had with Mr. Khan on
28th April, 2007 the conversation between Mr. Anand and Mr. Kulkarni is as
follows:
Mr. Kulkarni: ?.. yeh, doosri baat hai ki ekdum vo din bhi Khan sahab ke
saath
bahut log the. (That day, there were many people with Mr. Khan). Mr. Anand:
Hmm
Mr. Kulkarni: Yeh nahi tha ki akele Khan saheb the. (It is not that Mr. Khan
was
alone).
Mr. Anand: Hmm
Mr. Kulkarni: Phir bhi maine bahar bulake unko bolne ki koshish ki. Lekin
phir
bhi vo unke peeche itni bheed lagi rehti hai. (I called him outside to try
and
speak to him, but there are still so many people with him). Mr. Anand: But
natural, yaar, professional hai. (It?s but natural ? he is a
professional).
Mr. Kulkarni: But rush xxx all the time. Mr. Kulkarni: Abhi main office main
nahi aata ? main bahar utar jata hoo. (I
will not come to your office just now. I will get down outside). Mr. Anand:
xxx
Mr. Kulkarni: Haa
Mr. Anand: Talk to me around seven forty five. Mr. Kulkarni: OK
Mr. Anand: OK
Mr. Kulkarni: Sir ?
Mr. Anand: Then we?ll decide about it.
183. In the same vein, the conversation continues a little later: Mr.
Kulkarni: Main aajoo bajoo main paune aath baje ? aap mere ko bula lena. (I
will be around at a quarter to eight. Please call me). Mr. Anand: Give me a
call at seven forty five. Mr. Kulkarni: Ji.
Mr. Anand: On my office number.
Mr. Kulkarni: Ha ? ha ? ha (Yes). Aur iska bhi number mein de deta hoo? Jaya
bhi
aayegee ? isko leke aayo? (I will give you that number also [referring to his
wife Jaya]. Can I bring her)?
Mr. Anand: Tum aa jana yaar. (You come along). Mr. Kulkarni: Theek hai? aur
vo copy fax kar di hogi mere khayal se. (OK. I
think the copy would have been faxed [referring to a document mentioned
earlier]).
Mr. Anand: Hogi to tum le aana yaar ? kya dikkat hai ? aur ye lo xxx (If you
have it, then bring it along. what is the difficulty?. Take this). Mr.
Kulkarni: Phir mere khayaal se 311 udega nahi na, blood sample ka udega?
(Then I think [the petition under Section 311 of the Cr. P.C.] will not be
dismissed. What about the blood sample)? Mr. Anand: Hain?
Mr. Kulkarni: Kyon udaye ? jab tumhare paas paise bante hai to mein kyon
udayoo?
(Why should it be dismissed? When you can make money [on it] then why should
I
get it dismissed)?
184. With reference to the BMW case the conversation between Mr. Anand and
Mr. Kulkarni is as follows:
Mr. Kulkarni: Isme bachana hai na usko Sanjeev ko? (Sanjeev [the accused in
the
BMW case] has to be saved in this)? Mr. Anand: Bachana hai. Kabhi kisika bura
mat kiya karo ? Panga lene ka kya
faydaa. (He has to be saved. Don?t harm anyone. There is no benefit in
creating
a problem).
Mr. Kulkarni: Theek hai. (OK).
Mr. Kulkarni: Nahi? lekin kaise kya karna hai vo aapne aur Khan saheb ne
decide
karna hai? After all it was merely an accident. (But you and Mr. Khan have to
decide what has to be done).
Mr. Anand: And he remained in jail for 8-9 months? yaar.
185. The nature of the conversations in the three sting operations, the
contents of the conversations and the location of the meetings clearly show that
Mr. Kulkarni was quite familiar with Mr. Anand and also with Mr. Khan. The
several references made to Mr. Khan in the conversations between Mr. Kulkarni
and Mr. Anand clearly bring out the fact that Mr. Anand knew that Mr.
Kulkarni
was in touch with Mr. Khan. Similarly, Mr. Khan knew that Mr. Kulkarni was in
touch with Mr. Anand. We have no doubt about this. The case against Mr. I.U.
Khan:
186. There is only one occasion when Mr. Khan and Mr. Kulkarni meet with
each other and that is on 28th April, 2007 in the chamber of Mr. Khan in the
Patiala House Courts. The meeting was without any appointment but it was not
objected to by Mr. Khan. On the contrary, Mr. Khan and Mr. Kulkarni leave the
chamber together to have a private and personal conversation. In the third
sting
operation, Mr. Kulkarni tells Mr. Anand that Mr. Khan is a very busy man and
Mr.
Anand acknowledges it. This quite clearly suggests that even though Mr. Khan
is
a very busy man, Mr. Kulkarni had free access to him. 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 tacit
arrangement
or at least an understanding between Mr. Khan, Mr. Anand and Mr. Kulkarni.
187. On going through the recording of the sting operation of 28th April,
2007 and on a reading of the available transcript, it is clear that Mr. Khan
was
very keen to examine Mr. Kulkarni as a prosecution witness (and he
specifically
stated so). But, apparently because of the decision of the prosecution (which
was opposed by Mr. Khan), Mr. Kulkarni was dropped as a witness. Then
suddenly,
Mr. Khan asks Mr. Kulkarni whether he has met ?Bade Saheb? and expressed some
surprise when Mr. Kulkarni responded in the negative. Thereafter, there is
some
conversation between Mr. Khan and Mr. Kulkarni wherein Mr. Khan informs him
that
the Trial Court cannot require his statement to be recorded. This is followed
by a private and personal conversation between Mr. Khan and Mr. Kulkarni to
the
effect that they should meet in the evening over a drink. We are again
mentioning the private and personal conversation only to indicate the
familiarity between Mr. Kulkarni and Mr. Khan. In fact, from the recording taken
of this conversation from the bag camera, it is quite clear that Mr. Kulkarni
and Mr. Khan are quite familiar with each other so much so that Mr. Khan even
rests his hand on the shoulder of Mr. Kulkarni at one stage. Who is Bade
Saheb?
188. There was much debate about the identity of Bade Saheb. According to
learned Amicus, it has reference to none other than Mr. Anand but according
to
Mr. Khan, it has reference to a senior police officer. Learned counsel for
Mr.
Khan relied on the immediately preceding sentences in the conversation
regarding
Mr. Kulkarni being dropped as a witness by the prosecution. The contention
was
that the flow of the conversation suggests that Bade Saheb refers to someone
from the prosecution, which in the context means a senior police officer. It
was
further submitted that during the recording of Mr. Kulkarni?s evidence on an
earlier occasion, a reference to Bade Saheb was made more than once. ?Bade
Saheb? was then translated and recorded in the deposition to mean senior
police
officers. Learned counsel for Mr. Khan, however, did not produce any material
to support the last submission.
189. The contention of Mr. Khan cannot be accepted since in the personal
conversation (recorded by the button camera), Mr. Kulkarni informs Mr. Khan
that
he has had a talk with Mr. K.K. Paul [the Police Commissioner]. Mr. Paul,
though
a senior police officer, is not referred to as Bade Saheb in the
conversation.
Moreover, earlier in the conversation when Mr. Khan asks Mr. Kulkarni whether
he
has met Bade Saheb, Mr. Kulkarni replies in the negative instead of telling
him
that he had spoken to Mr. K.K. Paul. Looking at the conversation as a whole
and
in its proper context, we find it difficult to accept the contention of
learned
counsel for Mr. Khan that Bade Saheb has reference to one or more senior
police
officers.
190. On the other hand, when we watched the recording of the events of 28th
April, 2007 from the button camera, we noted that towards the end of the
recording, Mr. Deepak Verma asked Mr. Kulkarni about 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 video recording is doctored or morphed.
However, Mr. Kulkarni has stated in his affidavit dated 6th August, 2007 that
Ms. Poonam Agarwal ?forced me to mean that Bade Saheb means Sh. R.K. Anand as
it
suits her whole story.?
191. We are not prepared to accept the affidavit of Mr. Kulkarni in this
regard for three reasons. Firstly, the conversation between him and Mr.
Deepak
Verma was impromptu and a part of the sting operation continuum. The
expression
?Bade Saheb? came up only during the sting operation. It is nobody?s case
that
Ms. Poonam Agarwal had any prior knowledge of this expression. Secondly,
there
is no doubt that during the course of the live recording, Ms. Poonam Agarwal
did
not meet Mr. Kulkarni, and so there was no question of her pressurizing him
to
say to Mr. Deepak Verma that Bade Saheb referred to Mr. Anand. Thirdly, the
explanation given by Mr. Kulkarni in the video recording is contemporaneous
and
spontaneous unlike the explanation in the affidavit that came much later.
192. In our opinion, the affidavit of Mr. Kulkarni is an afterthought. For
the very same reasons we do not accept the explanation given by Mr. Khan in
his
subsequent interview to NDTV on 31st May, 2007 to the effect that Bade Saheb
has
reference to one or more senior police officer.
193. Therefore, we hold that Bade Saheb referred to by Mr. Khan has reference
only to Mr. Anand and that Mr. Khan was a little surprised that Mr.
Kulkarni had not yet met Mr. Anand.
194. Even otherwise, it is difficult to accept the suggestion of Mr. Khan
that Bade Saheb refers to a senior police officer, since it causes more
questions to be raised. Why would Mr. Kulkarni want to meet with senior police
officers, particularly when he has been dropped as a prosecution witness?
There
is nothing to suggest that Mr. Kulkarni frequently met senior police officers
whenever he was in Delhi, and so why should he meet them on this particular
occasion? On the other hand, there is enough material to show that Mr.
Kulkarni
was quite familiar, if not friendly, with Mr. Khan and Mr. Anand. Mr.
Kulkarni
had access to Mr. Khan?s chamber without an appointment. He also had free
access
to Mr. Anand and in fact took a ride with Mr. Anand in his car without any
semblance of a protest from Mr. Anand.
195. Consequently, whichever way one looks at it, it is difficult to accept
the contention of Mr. Khan that Bade Saheb refers to a senior police
officer - the reference can only be to Mr. Anand.
196. We may also note the conversation that Mr. Kulkarni had with Mr. Anand
on 6th May, 2007 in the VIP lounge of the Indira Gandhi International
Airport (Domestic Terminal) which shows that he had easy access to Mr. Anand.
This conversation and the conversation that Mr. Kulkarni had with Mr. Anand
in
his car on 8th May, 2007 clearly show that Mr. Anand knew that Mr. Kulkarni
was
in contact with Mr. Khan, and Mr. Kulkarni knew that Mr. Anand was in contact
with Mr. Khan. The first sting operation on 28th April, 2007 in the chamber
of
Mr. Khan clearly suggests that Mr. Khan knew that Mr. Kulkarni was in touch
with
Mr. Anand. In other words, all three of them knew that they were in contact
with
one another.
197. In the second sting operation on 6th May, 2007 at the Indira Gandhi
International Airport, Mr. Kulkarni informed Mr. Anand that he had sent a
message to Mr. Khan and he enquired from him (Mr. Anand) whether he had
received
the message. Mr. Anand replied in the affirmative. Towards the end of the
conversation, Mr. Anand tells Mr. Kulkarni to talk to Mr. Khan.
198. In the conversation that Mr. Kulkarni had with Mr. Anand in his (Mr.
Anand?s) car on 8th May, 2007 there are several references to Mr. Khan and we
need not repeat them here.
199. With the knowledge that Mr. Khan had of the familiarity that Mr.
Kulkarni and Mr. Anand had, the only course open to him, as an honest
prosecutor, would be to inform the prosecution (regardless of when Mr. Khan came
to know of it) that one of its witnesses was more than an acquaintance of the
defence lawyer. Mr. Khan does not say that he ever brought this to the notice
of the prosecution. In this regard, Mr. Khan clearly failed in his duty as a
prosecutor, who is expected to be fair not only to his client but also to the
Court.
200. It has been said by the Supreme Court in Shakila Abdul Gafar Khan v.
Vasant Raghunath Dhoble, (2003) 7 SCC 749: ?Justice has no favourite, except
the truth. It is as much the duty of the
prosecutor as of the court to ensure that full and material facts are brought
on
record so that there might not be miscarriage of justice.?
201. Similarly, it is said in Zahira Habibulla H. Sheikh v. State of Gujarat,
(2004) 4 SCC 158:
?The prosecutor who does not act fairly and acts more like a counsel for the
defence is a liability to the fair judicial system, ??.?
202. In view of the above, there is no doubt that the conduct of Mr. Khan
is rather unbecoming of a prosecutor. But the question that arises is whether
this demonstrates, beyond a reasonable doubt, that Mr. Khan has committed
criminal contempt of Court?
203. We do not know the extent of Mr. Khan?s awareness of the ?association?
between Mr. Anand and Mr. Kulkarni. Was he aware, for example that
both of them could be ?mixed up? and could sabotage the prosecution case in
the
BMW trial? In hindsight, the answer must certainly be in the affirmative ?
but
hindsight enables us to draw on knowledge that was not available at the
relevant
time. But, that apart, Mr. Khan is a seasoned lawyer with decades of practice
behind him. Surely, the proximity between Mr. Kulkarni and Mr. Anand (however
little that may have been) would have aroused his suspicion ? and the natural
corollary to that suspicion would be that their proximity (however little)
would
impact on the BMW case in only one way. Mr. Khan would have certainly
realized
this.
204. In addition, we find that the conversation that Mr. Khan had with Mr.
Kulkarni with regard to accepting the Court summons, followed by an
invitation
from Mr. Khan to Mr. Kulkarni to visit his residence for a drink is totally
unwarranted in the circumstances. Relevant extracts of this conversation read
as
follows:
Mr. Kulkarni: Summons Bombay challa gaya thaa, ab waha se reject ho ke ayaa
hua
hai. Ab loon ke na loon? Baad me mere ko raat ko ghar pe?. (The summons had
gone
to Bombay but it has come back. Should I accept it or not? Later in the
evening
at the house??).
Mr. Khan: Tum mere ko miloge kab, yeh batao? (Tell me, when will you meet
me?)
Mr. Kulkarni: Aap batao kyonki mere ko ? SHO se meri baat hui hai. Aap usko ?
(You let me know because ? I have spoken to the SHO?). Then,
Mr. Khan: Sunday ko kis waqt aaoge? (At what time will you come on Sunday)?
Mr. Kulkarni: Aap batao mere ko. (You tell me). Mr. Khan: Aapko kaun time
suit karta hai? (What time suits you)? Mr. Kulkarni: Koi bhi. (Anytime). Mr.
Khan: Saat aur aath ke darmiyan? (Between 7 and 8)? Mr. Kulkarni: Haan. Theek
hai. (Yes, OK). Finally,
Mr. Kulkarni: Main, vese meri K.K. Paul se baat hui hai, lekin maine abhi tak
nahi bola hoo. I have not received summons at all. Woh mere ko bata dena. (I
had
a talk with K.K. Paul [the Police Commissioner] but I have not told him. I
have
not received the summons at all. You tell me [what to do]). Mr. Khan: Kal tum
aajao. (Come tomorrow). Mr. Kulkarni: Main ? huh? Woh hamare dono ki baat hogi.
(That will be between
us).
Mr. Khan: Theek hai. (OK).
205. Learned counsel for Mr. Khan submitted that there is nothing wrong if
the Special Public Prosecutor is in contact with a prosecution witness.
Perhaps
not ? but the ?contact? between Mr. Khan and Mr. Kulkarni stretches well
beyond
that. They are on extremely familiar terms and moreover, their discussion
goes
several steps further than what one would expect. They discuss (or at least
propose to discuss) strategy in the BMW case, particularly with reference to
the
Court summons. Was that at all necessary?
206. Does Mr. Khan?s more than normal familiarity with Mr. Kulkarni and his
failure to bring all relevant facts to the notice of the prosecution or the
Court amount to criminal contempt? Does his silence interfere or tend to
interfere with the due course of the judicial proceeding or interfere or tend
to
interfere with or obstruct or tend to obstruct the administration of justice
in
any manner? In our opinion, the answer to both these questions must be in the
affirmative ? in any event there is definitely a tendency to interfere with
the
due course of a judicial proceeding or a tendency to interfere or obstruct
the
administration of justice. If Mr. Khan knew, and there is no doubt about it,
that Mr. Kulkarni and Mr. Anand were in touch, and Mr. Khan chose not to
inform
the prosecution or the Court about it, his silence 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
describes Mr. Kulkarni as the prime witness in the BMW case and the star
witness
of the prosecution. In Mr. Khan?s perception, Mr. Kulkarni is undoubtedly no
ordinary witness and Mr. Anand is certainly no ordinary lawyer ? he is the
advocate for the accused.
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. Khan 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 to option but to hold that Mr.
Khan very seriously erred in not bringing important facts touching upon the
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.
208. A reference was made by learned Amicus, though not with any great
vigour, to the opinion expressed by Mr. Khan that the Trial Court could not
require Mr. Kulkarni?s statement to be recorded. This is merely an opinion
expressed by Mr. Khan to Mr. Kulkarni and it cannot in any manner be
interpreted
to mean that there is any contempt of Court committed by Mr. Khan merely by
expressing his opinion in private. Even if Mr. Khan had expressed this
opinion
publicly, it would, to our mind, not make any difference at all since it is a
completely innocuous opinion.
209. We may note a submission made by learned counsel for Mr. Khan to the
effect that Mr. Khan was intimidated by the towering presence of Mr. Deepak
Verma, who is said to be a burly man. We cannot accept this submission. The
nature of the conversation that Mr. Khan has with Mr. Kulkarni belies this
suggestion. Moreover, there were several people present in the chamber of Mr.
Khan and so he had the safety of numbers. Furthermore, on viewing the
original
chips and the video recording, it is clear to us that there was not an iota
of
?fear? on Mr. Khan. Then there is the private and personal conversation that
Mr.
Khan has with Mr. Kulkarni. The contents of the conversation, the manner in
which it was conducted (with Mr. Khan?s hand on the shoulder of Mr. Kulkarni)
and in the somewhat close proximity of Mr. Deepak Verma show clearly that Mr.
Khan and Mr. Kulkarni were familiar with each other and that the presence of
Mr.
Deepak Verma was certainly not a deterrent. Finally, in his interview with
Ms.
Anasuya Roy, Mr. Khan clearly says that he is ?not denying anything at all?.
That interview was the first of its kind given by Mr. Khan and was
contemporaneous. It is, under these circumstances, quite clear to us that the
submission made by learned counsel for Mr. Khan does not have any substance.
The case against Mr. Sri Bhagwan Sharma:
210. Mr. Sri Bhagwan Sharma is an associate advocate of Mr. Anand and is
also one of the learned counsel for the accused. As regards his defence, he
has
adopted the arguments advanced by Mr. Anand. The only material against him is
the video recording taken on 8th May, 2007. It is not disputed before us that
Mr. Sri Bhagwan Sharma met Mr. Kulkarni in the South Extension Part II market
and was joined by one Mr. Lovely (since deceased). Mr. Sri Bhagwan Sharma is
a
mature lawyer with considerable experience and obviously can be assumed to be
fully conscious of and understanding the consequences of each of his actions.
The video recording reveals that Mr. Sri Bhagwan Sharma met Mr. Kulkarni in
the
evening and was with him for a while and till Mr. Lovely, another associate
of
Mr. Anand came on the scene. The conversation that Mr. Sri Bhagwan Sharma has
with Mr. Kulkarni reveals the anxiety and discomfiture of Mr. Kulkarni on
being
made to wait for a third person (Mr. Lovely), about whom he keeps on
enquiring
and who is described as a close confidant and right hand man of Mr. Anand
(referred to in the conversation as Boss). Barring the usual banter, the
conversation records Mr. Kulkarni?s desire to speak directly to Mr. Nanda,
without any middleman. Mr. Kulkarni also sought instructions with regard to
receiving eh Court summons. After a considerable lapse of time, the wait for
Mr.
Lovely ends. Thereafter, there is some conversation with Mr. Lovely where
huge
sums are discussed with his (Mr. Kulkarni) share being preserved. We need not
go
into the conversation that Mr. Kulkarni had with Mr. Lovely for reason that
Mr.
Lovely has since passed away and is not a noticee in the suo motu contempt
proceedings.
211. From a perusal of the entire recorded conversation of 8th May, 2007
we are left the impression that and Mr. Sri Bhagwan Sharma was not the main
actor and was in fact waiting for the arrival of Mr. Lovely (since deceased).
While reference to the BMW case and Mr. Nanda appear in the conversation that
he
had with Mr. Kulkarni, on the basis of the conversation taken as a whole, the
role of Mr. Sri Bhagwan Sharma at best could be described as a facilitator,
while the main emissary of Mr. Anand was Mr. Lovely and his assignment was to
make him wait till Mr. Lovely appeared on the scene. On the basis of the
conversation taken as a whole, it is difficult to hold Mr. Sri Bhagwan Sharma
guilty of criminal contempt.
212. It is true that as one of the lawyers for the accused, Mr. Sri Bhagwan
Sharma had no business to be in touch with Mr. Kulkarni and the fact
that he was in touch with Mr. Kulkarni is, in itself, totally unethical and
unprofessional, but it would be difficult to say, on the material before us,
that Mr. Sri Bhagwan Sharma had influenced or had attempted to influence Mr.
Kulkarni in any manner whatsoever, or to alter the course of justice. The
contact that Mr. Sri Bhagwan Sharma had with Mr. Kulkarni may be a relevant
factor to take into consideration for other proceedings. In our opinion it
would be stretching the matter a little too far to say that merely because
Mr.
Sri Bhagwan Sharma had met Mr. Kulkarni on the evening of 8th May, 2007 (and
perhaps on some other occasions also but for which there is no clear
evidence,
but it seems more than likely) that, by itself, must mean that Mr. Sri
Bhagwan
Sharma has committed criminal contempt of Court.
213. However, we do express our displeasure at the conduct of Mr. Sri Bhagwan
Sharma for conversing with Mr. Kulkarni who had been a witness for the
prosecution. As a defence lawyer, Mr. Sri Bhagwan Sharma had no business to
be
in touch with Mr. Kulkarni and for this he invites our displeasure. But, in
our
opinion, his conduct does not amount to criminal contempt of Court. We may
note
that we have taken into consideration the fact that Mr. Sri Bhagwan Sharma
was
not a major player in the entire operation or even in the BMW case and was
only
a ?junior? or sidekick of Mr. Anand, and acting on his instructions as his
Man
Friday.
The case against Mr. R.K. Anand:
214. There is absolutely no doubt that the role of Mr. Anand is dubious,
to say the very least. The first sting operation clearly brings out the
connection that Mr. Khan and Mr. Kulkarni have with Mr. Anand, who is like the
?team leader? who must be made aware of everything that is going on. That
appears to be the reason why Mr. Khan is surprised that Mr. Kulkarni has not
yet
met Mr. Anand. Admittedly, there is no direct reference to Mr. Anand in the
first sting operation, but that hardly makes any difference. In our opinion,
the
reference to Bade Saheb is quite clear and even if it is not so, there is
enough
other material on the basis of which it is possible to hold Mr. Anand guilty
of
criminal contempt. We propose to deal with each such category of material.
Familiarity between Mr. Anand and Mr. Kulkarni:
215. The second and third sting operations make it explicit that Mr. Kulkarni
had easy access to Mr. Anand. This, by itself, is extremely odd
considering that Mr. Kulkarni is the prime witness and the star witness for
the
prosecution and Mr. Anand is the lawyer for the accused in that very case.
Mr.
Anand and Mr. Kulkarni meet in the VIP lounge of the airport; Mr. Kulkarni
says
that he will come to his house, but Mr. Anand invites Mr. Kulkarni to his
farm ?
the conversation being:
Mr. Kulkarni: Jab bhi mereko zaroorat padegi main ghar pe aa jaunga, mujhe
pata
hai ? (Whenever it is necessary, I will come to your house). Mr. Anand: Chalo
let me come back tomorrow evening, you come and meet me in the
night ? in the farm ? don?t meet me outside ? Mr. Kulkarni: Nahi aaj jaroori
tha isliye main mila ? nahi to main ? I avoid it.
(Today it was necessary that is why I met you). Mr. Anand: Nahi farm pe
milna. (Come to the farm).
216. Then again the possibility of a meeting in Mr. Anand?s office: Mr.
Kulkarni: Ha ? ha ? ha (Yes). Aur iska bhi number mein de deta hoo? Jaya bhi
aayegee ? isko leke aayo? (I will give you that number also [referring to his
wife Jaya]. Can I bring her)?
Mr. Anand: Tum aa jana yaar. (You come along). Mr. Kulkarni: Theek hai? aur
vo copy fax kar di hogi mere khayal se. (OK. I
think the copy would have been faxed [referring to a document mentioned
earlier]).
Mr. Anand: Hogi to tum le aana yaar ? kya dikkat hai ? aur ye lo xxx (If you
have it, then bring it along. what is the difficulty?. Take this).
217. Mr. Kulkarni has access to Mr. Anand over the telephone and to his
office. This is clear from the following: Mr. Anand: Abhi main office main nahi
aata ? main bahar utar jata hoo. (I will
not come to your office just now. I will get down outside). Mr. Anand: xxx
Mr. Kulkarni: Haa
Mr. Anand: Talk to me around seven forty five. Mr. Kulkarni: OK
Mr. Anand: OK
Mr. Kulkarni: Sir ?
Mr. Anand: Then we?ll decide about it. Then again,
Mr. Kulkarni: Main aajoo bajoo main paune aath baje ? aap mere ko bula lena.
(I
will be around at a quarter to eight. Please call me). Mr. Anand: Give me a
call at seven forty five. Mr. Kulkarni: Ji.
Mr. Anand: On my office number.
218. That Mr. Kulkarni could gain easy entry into Mr. Anand?s car further
shows their familiarity and proximity. There was no protest or objection from
Mr. Anand. In fact, his car stopped to pick up Mr. Kulkarni ? it was not as
if
Mr. Kulkarni forced his way into the car. All the material that we have
referred
to above clearly shows the lack of any distance between Mr. Anand and Mr.
Kulkarni. We ask: Is it ethical or even proper for a defence lawyer to be so
familiar with the star prosecution witness? What does their proximity
suggest?
Discussions regarding money:
219. There is also talk of some money between Mr. Anand and Mr. Kulkarni.
There is a mention of two-and-a-half crore versus five crore in this manner:
Mr. Anand: Haan ab ? ab mujhe batao.. Ab batao mere ko. (Now tell me). Mr.
Kulkarni: Mujhe bola dhai crore doonga ? aap batao mere ko. (He told me that
he will give two-and?a-half crore. You advise me). Mr. Anand: Hain?
Mr. Kulkarni: Dhai crore.
Mr. Anand: Tu paanch crore maang le. (You ask for five crore). Mr. Kulkarni:
Mein paanch crore maang leta hoo. (I will ask for five crore).
Mr. Anand: Tere ko cross-examine maine zaroor karna hai. (I will definitely
cross-examine you).
220. Then there is the admonition by Mr. Anand to Mr. Kulkarni not to be
unreasonable:
Mr. Anand: I?m out of touch ? I?m not in trial ? I?m in High 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 me that day. Don?t be silly. Mr. Kulkarni:
Kitna mangoo? (How much should I ask for)?
221. There is also a financial benefit that Mr. Kulkarni may get in
connection with the petition challenging the summons issued to Mr. Kulkarni
under Section 311 of the Cr.P.C. The conversation in this regard is as
follows:
Mr. Kulkarni: Phir mere khayaal se 311 udega nahi na, blood sample ka udega?
(Then I think [the petition under Section 311 of the Cr. P.C.] will not be
dismissed. What about the blood sample)? Mr. Anand: Hain?
Mr. Kulkarni: Kyon udaye ? jab tumhare paas paise bante hai to mein kyon
udayoo?
(Why should it be dismissed? When you can make money [on it] then why should
I
get it dismissed)?
222. That Mr. Kulkarni is receiving some money is not to be disclosed to
Mr. Khan:
Mr. Kulkarni: Haan vo to Khan sahab ke apne ghar ki baat hai. (Yes, Mr. Khan
is
a part of the family).
Mr. Anand: Yeh to tum usko keh nahi sakte ho ki tumhe paise mil rahe hain.
(You
cannot [should not?] tell him [Mr. Khan] that you are getting paid).
223. We ask: Should the defence lawyer discuss anything about any money at
all with the star prosecution witness ? even jokingly? Discussions on
strategy and future course of action:
224. There is a discussion between Mr. Anand and Mr. Kulkarni about the
strategy to be adopted in the case with regard to the receipt of summons by Mr.
Kulkarni. This is as follows:
Mr. Kulkarni: Ab kya strategy banana hai batao. (Tell me what should be the
strategy)?
Mr. Kulkarni: Maine message bheja tha Khan saab ke paas ... aapko shayad mila
hoga. (I had sent the message to Mr. Khan. You may have received it). Mr.
Anand: Haan ? mil gaya tha. (Yes, I received it). Then again,
Mr. Kulkarni: Bus baat hi kuch nahi ... Patiala House Court main jakar meine
de
diya ? Khan sahab ne vo din mereko summon lene ke liye mana kar diya ? ab
theek
hai vo ? vo to obviously hona hi tha ? ab mereko message pahuchana tha ? vo
pahuch gaya. (That day Mr. Khan asked me not to accept the summons. I had to
convey a message and that has been conveyed). Mr. Anand: Toh liya kya summon.
(So did you take the summons?) Mr. Kulkarni: Main kahan se summon liya ? bilkul
nahi. (No, I did not take the
summons).
Mr. Anand: To summon nahi liya abhi tak? Mr. Kulkarni: Na.
Mr. Anand: So you have not taken the summon? Mr. Kulkarni: Na ... not at
all... jab tak aap nahi bataoge, Khan sahab nahi
bataenge tab main summon kaise lu?.? (No, not at all. Until you or Mr. Khan
advise me, how can I take the summons?). Mr. Anand: How did Ramesh Gupta
inform him that you have taken the summons?
Mr. Kulkarni: Ab yahi baat to yahi hai na ? maine summon nahi liya hai ? aap
pata kar lo ? maine summon nahi liya hai ? jab vahan Bombay main jake ?
unhone
phir vahin panga chaloo kar diya na. (I have not taken the summon. You may
find
out).
225. There is a discussion about the effect of the petition challenging the
summons issued to Mr. Kulkarni under Section 311 of the Cr.P.C. Mr. Kulkarni:
Phir mere khayaal se 311 udega nahi na, blood sample ka udega?
(Then I think [the petition under Section 311 of the Cr. P.C.] will not be
dismissed. What about the blood sample)? Mr. Anand: Hain?
Mr. Kulkarni: Kyon udaye ? jab tumhare paas paise bante hai to mein kyon
udayoo?
(Why should it be dismissed? When you can make money [on it] then why should
I
get it dismissed)?
226. There is talk about what statement Mr. Kulkarni should make: Mr. Anand:
I?m out of touch ? I?m not in trial ? I?m in High Court so I don?t
know ? anyhow ? what statement you are supposed to make ? we will decide
about
it.
227. In the context of the BMW case itself: Mr. Kulkarni: Isme bachana hai na
usko Sanjeev ko? (Sanjeev [the accused in the
BMW case] has to be saved in this?) Mr. Anand: Bachana hai. Kabhi kisika bura
mat kiya karo ? Panga lene ka kya
faydaa. (He has to be saved. Don?t harm anyone. There is no benefit in
creating
a problem)?
Mr. Kulkarni: Theek hai. (OK).
Mr. Kulkarni: Nahi? lekin kaise kya karna hai vo aapne aur Khan saheb ne
decide
karna hai? After all it was merely an accident. (But you and Mr. Khan have to
decide what has to be done).
Mr. Anand: And he remained in jail for 8-9 months? yaar.
228. The conclusions that can be drawn from this conversation are more than
obvious.
Complicity between Mr. Anand and Mr. Khan:
229. There are plenty of discussions between Mr. Anand and Mr. Kulkarni
relating to Mr. Khan.
230. There is, first of all, some discussion about a message delivered to
Mr. Khan, which was received also by Mr. Anand. Mr. Kulkarni: Ab kya strategy
banana hai batao. (Tell me what should be the
strategy)?
Mr. Kulkarni: Maine message bheja tha Khan saab ke paas ... aapko shayad mila
hoga. (I had sent the message to Mr. Khan. You may have received it). Mr.
Anand: Haan ? mil gaya tha. (Yes, I received it).
231. There is also a discussion of a meeting with Mr. Khan in the following
words:
Mr. Anand: Any how tum Khan sahab se baat kar lo. (You talk to Mr. Khan).
Mr. Kulkarni: Unko bolna ? aap unko phone kar ke bolna main aa jaunga ? mere
se
baat kar lena kyunki mera aur aapka milna theek nahi hai. (You phone him up
and
tell him that I will be coming and that he should speak to me, because it is
not
proper for us to meet).
232. There is talk of Mr. Khan being a member of the family and yet, for
some reason, he should not know about payments being received by Mr.
Kulkarni.
This is apparent from the following conversation: Mr. Kulkarni: Yeh log kya
karte hai, pata hai aapko. (Do you know what these
people do?)
Mr. Anand: Arre bhaiyya ... unko karne do jo ? mujhe to jo bataya hua hai woh
bata diya maine ?. Acha Khan ki to ghar ki baat hai. (Let them do [what they
want]. I have told [you] what I was told to me. [The next sentence is
colloquial
and therefore difficult to translate, but it conveys that Mr. Khan is a part
of
the family].
Mr. Kulkarni: Haan vo to Khan sahab ke apne ghar ki baat hai. (Yes, Mr. Khan
is
a part of the family).
Mr. Anand: Yeh to tum usko keh nahi sakte ho ki tumhe paise mil rahe hain.
(You
cannot [should not?] tell him [Mr. Khan] that you are getting paid).
233. Mr. Kulkarni took advice from Mr. Khan about receiving the Court summons
and this is within the knowledge of Mr. Anand, as is clear from the
following conversation:
Mr. Kulkarni: Bus baat hi kuch nahi ... Patiala House Court main jakar meine
de
diya ? Khan sahab ne vo din mereko summon lene ke liye mana kar diya ? ab
theek
hai vo ? vo to obviously hona hi tha ? ab mereko message pahuchana tha ? vo
pahuch gaya. (That day Mr. Khan asked me not to accept the summons. I had to
convey a message and that has been conveyed). Mr. Anand: Toh liya kya summon.
(So did you take the summons?) Mr. Kulkarni: Main kahan se summon liya ? bilkul
nahi. (No, I did not take the
summons).
Mr. Anand: To summon nahi liya abhi tak? Mr. Kulkarni: Na.
Mr. Anand: So you have not taken the summon? Mr. Kulkarni: Na ... not at
all... jab tak aap nahi bataoge, Khan sahab nahi
bataenge tab main summon kaise lu?.? (No, not at all. Until you or Mr. Khan
advise me, how can I take the summons?).
234. Mr. Kulkarni reported to Mr. Anand about the meeting that he had with
Mr. Khan on 28th April, 2007 in the following words: Mr. Kulkarni: ?.. yeh,
doosri baat hai ki ekdum vo din bhi Khan sahab ke saath
bahut log the. (That day, there were many people with Mr. Khan). Mr. Anand:
Hmm
Mr. Kulkarni: Yeh nahi tha ki akele Khan sahab the. (It is not that Mr. Khan
was
alone).
Mr. Anand: Hmm
Mr. Kulkarni: Phir bhi maine bahar bulake unko bolne ki koshish ki. lekin
phir
bhi vo unke peeche itni bheed lagi rehti hai. (I called him outside to try
and
speak to him, but there are still so many people with him). Mr. Anand: But
natural, yaar, professional hai. (It?s but natural ? he is a
professional).
235. About the assistance Mr. Kulkarni can give to the defence is discussed
with Mr. Anand in the following words ? the decision being that of Mr.
Khan and Mr. Anand:
Mr. Kulkarni: Isme bachana hai na usko Sanjeev ko? (Sanjeev [the accused in
the
BMW case] has to be saved in this?) Mr. Anand: Bachana hai. Kabhi kisika bura
mat kiya karo ? Panga lene ka kya
faydaa. (He has to be saved. Don?t harm anyone. There is no benefit in
creating
a problem)?
Mr. Kulkarni: Theek hai. (OK).
Mr. Kulkarni: Nahi? lekin kaise kya karna hai vo aapne aur Khan saheb ne
decide
karna hai? After all it was merely an accident. (But you and Mr. Khan have to
decide what has to be done).
Mr. Anand: And he remained in jail for 8-9 months? yaar.
236. The entire material leaves a bitter taste in the mouth about the goings-
on in the BMW case and there is no manner of doubt whatsoever that there
was complicity between Mr. Khan and Mr. Anand and that Mr. Kulkarni was aware
of
it and was apparently trying to use it to his advantage. It is not necessary
for
us to comment on the conduct of Mr. Kulkarni, nor would it be proper, but
there
can be absolutely no doubt that Mr. Khan and Mr. Anand were, somehow or the
other, more than ?mixed up? in the BMW case.
237. It is also important to note that the sting operation is the only
material presently available and it discloses the fact that the dramatis
personae had been in touch earlier also ? the sting operations were clearly
not
their first meetings. That being so, we will never know what transpired
between
them prior to the sting operations, but it was certainly something not very
pleasant.
238. We are left without a shadow of doubt in our mind, on the basis of the
material before us, in more features than one, that Mr. Anand was a key
player in interfering or at least tending to interfere in the due course of a
judicial proceeding and interfering or obstructing or at least tending to
interfere or obstruct the administration of justice in any other manner. We
are
also left with no doubt in our mind that the unshakeable truth is that Mr.
Anand
is guilty of criminal contempt of Court. Punishment:
239. What then is the sentence or punishment to be meted out to the
contemnors? As far as we are concerned, Mr. Anand and Mr. Khan are seasoned
lawyers of this Court with decades of practice behind them. Mr. Anand has
held
prestigious elective positions in the legal fraternity, including the Bar
Council of Delhi. He has also been a Member of Parliament in the Rajya Sabha.
That he should indulge in sharp practices may have taken many in the legal
fraternity by surprise. Mr. Khan is known for his legal acumen and forensic
skills and that is perhaps the reason why he was appointed as a Special
Public
Prosecutor in the BMW case. That he would betray the trust that the
prosecution
reposed in him, in the manner that he did, was perhaps beyond the realm of
contemplation of the prosecuting agency. As far as Mr. Anand and Mr. Khan are
concerned, in our view, the higher the position they hold, the greater the
responsibility on them and higher the expectations that others may have from
such eminent persons.
240. In this background, we have considered and deliberated upon the
punishment that should be imposed on Mr. Anand and Mr. Khan. We are not dealing
with a young lawyer who, driven by ambition and desire to make his
career and in his over zealousness, transgresses the limits by crossing the
Laxman Rekha or unwittingly or unknowingly commits criminal contempt. We are
dealing with Senior Advocates, who are expected to conduct themselves as
gentlemen and role models for younger members of the Bar. Both Mr. Anand and
Mr.
Khan are fully aware of all the intricacies and nuances of the law of
contempt.
They have not tendered any apology, conditional or unconditional, expressed
any
contrition or repentance for their conduct.
241. In these circumstances, we feel the adequate punishment would be to
prohibit them from appearing before this Court and the Courts subordinate to
it
for a specified period and also to recommend to the Full Court that they
should
be stripped of their designation as Senior Advocates. In this context, we may
refer to a decision of a Division Bench of this Court authored by one of us
(Manmohan Sarin, J.), titled Court on its own Motion v. Rajiv Dawar, 2007 I
AD
(DELHI) 567. In that case, the defence lawyer had assured the accused of his
release on bail for a sum of Rs.30,00,000/- having spoken to ?the people, who
would be responsible for his release on bail?. After being given a full
opportunity of representing his case, he was found guilty of criminal contempt
and substantially interfering with the administration of justice. In that
case,
the contemnor had refunded Rs.4,00,000/- as directed by the Bar Council and a
plea was made to bring a quietus to the matter. This submission was rejected
by
the Bench holding:
??? To our mind, it is essential that aberration committed by those who are
integral part of the administration of justice are sternly and firmly dealt
with. Magnanimity and latitude should be available to those who are not
knowledgeable or conversant with the system or commit the offence unwittingly or
innocently. We may also observe that throughout these prolonged proceedings,
despite several opportunities being available, there has not even been
expression of any slightest remorse or regret on the part of respondent-
contemnor and he continues to maintain his high ground.? A fine of Rs.2,000/-
was imposed on the contemnor. Further, in exercise of
powers conferred by Article 215 of the Constitution of India, he was debarred
from appearing in this Court and the Courts subordinate to it for a period of
two months while permitting him to discharge his professional duties in terms
of
consultation etc.
242. We are of the view that the ratio of the above case would apply to the
present situation, particularly as regards the punishment to be given to Mr.
Anand and Mr. Khan. We accordingly direct: (i) In exercise of powers
conferred by Article 215 of the Constitution of India, Mr. R.K. Anand and Mr.
I.U. Khan are prohibited from appearing in this
Court or the Courts subordinate to it for a period of four months from today.
However, they are free to discharge their professional duties in terms of
consultation, advises, conferences, opinions etc. (ii) Mr. R.K. Anand and Mr.
I.U. Khan, on account of their conduct, have
forfeited the right to enjoy the honour conferred on them by this Court of
being
designated Senior Advocates. We recommend to the Full Court to strip them of
their designation as such.
(iii) The Registrar General will put up our recommendation to Hon?ble the
Chief
Justice within a month for placing the matter before the Full Court for
consideration and a decision be taken thereon. (iv) Both Mr. R.K. Anand and Mr.
I.U. Khan will each pay a fine of Rs.2,000/-
for committing criminal contempt of Court.
243. Finally, we may place on record the fact that we have been ably assisted
throughout by Mr. Arvind Nigam, Advocate, who had the unpleasant task
of rendering assistance in a matter where senior advocates of the Bar were
involved. He spared no effort in rendering able assistance and we found the
same to be of a high caliber and quality. Mr. Nigam truly performed the task
of
an Amicus Curiae in ably assisting the Court in formulating the legal
propositions and giving an objective and impartial assessment. We recommend to
Hon?ble the Chief Justice to suo motu consider designating Mr. Arvind Nigam
as a
Senior Advocate of this Court.
244. A free copy of this judgment and order be handed over today to the
learned
Amicus, learned counsel for NDTV, Mr. R.K. Anand, Mr. I.U. Khan, Mr. Sri
Bhagwan
Sharma under the signatures of the Courtmaster.
245. In the event that Mr. Anand or Mr. Khan may wish to take up the matter
further, we direct NDTV to preserve the original chips until 31st
December, 2008. If there are no further orders from any Court in respect of
the
original chips, NDTV may thereafter reformat them or otherwise utilize them.
246. The suo motu criminal contempt petition is disposed of as above. Madan
B. Lokur, J.
August 21, 2008 Manmohan Sarin, J. 1 Available at www.manupatra.com
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