wp.5434.17 & 132.18.1.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 5434 OF 2017 1. [ENTITY] s/o C.B. Singh Baghel, Age : 42 years, Occupation:Journalist, Address : A-45/202, Sector 3, Shanti Nagar, Mira Road (East). 2. [ENTITY], Age 50 years, Occupation Journalist, Address : Jagannath Niwas, 2nd floor, Awantikabai Gokhale Cross Lane, Mumbai. 3. [ENTITY], Age : 40 years, Occupation Journalist, Address : 604, 23D, Sneh CHS, Bimbisar Nagar, Goregaon (East), Mumbai. 4. [ENTITY], Age: 26 years, Occupation : Journalist, Address : 36/37, 4th Floor, Lucky Building, 16, Pakmodia Street, Mumbai. 5. [ENTITY], Age : 28 years, Occupation : Journalist, Address : 103, Mudit Gardens, Sector 12/A, Plot : 17/1, Koparkhairane, Navi Mumbai. 6. [ENTITY], Age : 61 years, Occupation : Journalist, Address : 21, Prem Court, J. Tata Road, Churchgate Reclamation, Mumbai. 7. [ENTITY], Age : 48 years, Occupation : Journalist, [ENTITY] 1/39 Uploaded on - 03/02/2018 Downloaded on - 04/02/2018 00:15:43 wp.5434.17 & 132.18.1.doc Address : Chez Nous, 125, St. Cyril Road, Bandra (West), Mumbai. 8. [ENTITY], Age : 48 years, Occupation : Journalist, Address : Flat No. 14, 5th Floor, Janardan Apartment, Somwar Bazar, Malad (West), Mumbai. 9. [ENTITY], Age : 34 years, Occupation : Journalist, Address : A 504, Vastu Park, Evershine Nagar, Malad (W), Mumbai. Petitioners Versus 1. The [ENTITY] 2. [ENTITY], Special Crime Branch, Mumbai. 3. [ENTITY] (Original accused no.4) S/o [ENTITY], Occupation : Then Dy. Superintendent of Police, ATS, Ahmedabad, Gujarat Address : D-1/5, Officer's Quarters, Opp. Police Head Quarters, Shahi Baug, Ahmedabad, Gujarat Village: Anawada, Tehsil-Pattan, District Patan, Gujarat 4. [ENTITY] (Original accused no.5) S/o [ENTITY], Occupation : Then Police Inspector, ATS, Ahmedabad, Gujarat Address : 2/3, Police Officer's Flats, Hira Baug, Ellis Bridge, Ahmedabad Gujarat, Village Nagnesh, Tehsil Chuda, District Surendra Nagar, Gujarat [ENTITY] 2/39 Uploaded on - 03/02/2018 Downloaded on - 04/02/2018 00:15:43 wp.5434.17 & 132.18.1.doc 5. [ENTITY] (Original accused no.6) s/o [ENTITY] Occupation : The then Police Sub-Inspector, ATS, Ahmedabad, Gujarat Address : House No. 126/1, "CH" Type, Sector-20, Govt. Quarters, Gandhinagar, Village Gram/Post, Lassipur, Taluka Jahanaguni, District Azamgarh, UP 6. [ENTITY] (Original accused no 7) S/o [ENTITY] Occupation : The then Police Sub-Inspector/SHO P.S. Pratapnagar, Udaipur, Address : Government Quarters, Pratap Nagar, Udaipur, 345, Jalpura, [ENTITY] 7. [ENTITY] (Original Accused no 8) S/o [ENTITY], Occupation : The then Police Sub-Inspector/SHO, Khanoda P.S., Udaipur, Address : 10-B, Adarsh Nagar, University Road, Udaipur, Rajasthan, Village 5, Anand Bhavan, Temple Road, Bhitwari, Dist: Pali, Rajasthan 8. [ENTITY] (Original Accused no. 9) S/o Late [ENTITY] Occupation : The then Police Sub-Inspector, Jawar Mines P. S. Udaipur Rajasthan Address : Residing at P.S.: Sahira, District Jodhpur, Rajasthan. 9. [ENTITY] (Original Accused no 10) S/o [ENTITY], Occupation : The then Police Constable, ATS, Ahmedabad, Gujarat, Address : 3-Anand Vihar Society, Opp. Rohit Park, Danilinada, Ahmedabad, Gujarat [ENTITY] 3/39 Uploaded on - 03/02/2018 Downloaded on - 04/02/2018 00:15:43 wp.5434.17 & 132.18.1.doc Village Sollaiya, Taluka - Mansa, District Gandhinagar, Gujarat 10. [ENTITY] (Original Accused no 11) S/o [ENTITY] Occupation: The then Police Constable, ATS, Ahmedabad, Gujarat, Address : Quarter No. 10/4, Type-VI, Sector 28, Gandhinagar, Gujarat Village/Post-Naraina, Taluka-Samalka Mandi, District Panipat, Haryana 11. [ENTITY] (Original Accused no 9) S/o [ENTITY] Occupation: The then Sub-Inspector of Police, ATS, Ahmedabad, Gujarat, Address : C-27, Kamdhenu Society, Ranip, Ahmedabad Gujarat 12. [ENTITY] (Original Accused no 14) s/o [ENTITY] Occupation: The then Police Inspector, ATS, Ahmedabad, Gujarat, Address : Udit Apartments, Tulip Bungalows, Opp. TV Tower, Thaltej, Ahmedabad, Gujarat 13. [ENTITY] (Original Accused no 19) S/o [ENTITY] Occupation: Property Developer and Real Estate Agent O/Address : Jirawala Construction, 10 New Cloth Market, Raipur, Ahmedabad Address : 20-B, Sthanak Wasi, Jain Society, Near Naranpura Crossing, Ahmedabad 14. [ENTITY] (Original Accused no 23) S/o [ENTITY] 4/39 Uploaded on - 03/02/2018 Downloaded on - 04/02/2018 00:15:43 wp.5434.17 & 132.18.1.doc Occupation : The Then Police Sub-Inspector, Singaraykonda PS., Singaraykonda, Dist - Prakasam, Andhra Pradesh, Now Police Inspector, Addanki Circle, Dist - Prakasam, Andhra Pradesh 15. [ENTITY] (Original accused no. 24) S/o [ENTITY], Occupation : The Then Superintendent of Police, Banaskantha, Gujarat Address : DE-03, Dy. SP bungalow, Police Head Quarters, Palanpur, Gujarat & C-21, Ashok Vihar, Phase-I, New Delhi 16. [ENTITY] (Original accused no 25) S/o [ENTITY] Occupation : The then Police Sub-Inspector, SOG, Palanpur, Gujarat Address : Quarter No.D2, Police Head Quarter, Palanpur, Gujarat & Village: Meghpar, Taluka-Bhuj , Dist. Kutch, Gujarat 17. [ENTITY] (Original accused no 26) S/o [ENTITY] Occupation : The then Assistant Sub-Inspector, Dist. Police Udaipur, Rajasthan. Address : Village - Utharda, Tehsil - Nathdwara, Dist. Rajsamand, Rajasthan 18. [ENTITY] (Original accused no 27) S/o [ENTITY] Occupation : The then Police Constable, Dist. Police, Udaipur, Rajasthan. Address : [ENTITY], Police Station, Udaipur, Rajasthan, Village - Jalalpur, Tehsil - Bawal, Dist. Rewari, Haryana [ENTITY] 5/39 Uploaded on - 03/02/2018 Downloaded on - 04/02/2018 00:15:43 wp.5434.17 & 132.18.1.doc 19. [ENTITY] (Original accused no 29) S/o [ENTITY] Occupation : The then Police Constable, Dist. Police, Udaipur, Rajasthan. Address : [ENTITY] Police Station, Udaipur, Rajasthan, Village-Majrakath, Tehsil - Bharor, Dist. Alwar, Rajasthan 20. [ENTITY] (Original accused no 30) S/o [ENTITY] Occupation : The then Assistant Sub-Inspector of Police, SOG, Palanpur, Gujarat, Address : Village Mota, Taluka Palanpur, Dist - Banaskantha, Gujarat 21. [ENTITY] (Original accused no 31) S/o [ENTITY] Occupation : The then Police Constable, SOG, Palanpur, Gujarat Address : Quarter No. 332, Block No. B-28, Police Headquarter, Palanpur, Gujarat, At & Post - Village Vasi, Taluka-Santa, Dist - Banaskantha, Gujarat 22. [ENTITY] (Original accused no 32) S/o [ENTITY] Occupation : The then Police Constable, SOG, Palanpur, Gujarat Address : Quarter No. 283, Block No. B-24, Police Headquarters, Palanpur, Gujarat, & At & Post : Village Dangiya, Taluka-Dantivada, Dist - Banaskantha, Gujarat 23. [ENTITY] (Original accused no 33) S/o [ENTITY] Occupation : The then Constable, SOG, Palanpur, Gujarat Address : Chamunda Society, [ENTITY] 6/39 Uploaded on - 03/02/2018 Downloaded on - 04/02/2018 00:15:43 wp.5434.17 & 132.18.1.doc Behind Police Headquarters, Madhupur Road, Palanpur, Gujarat, & Village - Madna (Dangia), Taluka-Palanpur, Dist - Banaskantha, Gujarat 24. [ENTITY] (Original accused no 34) S/o [ENTITY] Occupation : The then Police Head Constable Driver, SOG, Palanpur, Gujarat Address : Village - Hadad, Taluka - Danta 25. [ENTITY] (Original accused no 38) S/o [ENTITY] Occupation : The then Dy. Superintendent of Police, CID Crime, Ahmedabad (presently posted as Dy S.P, Sarkhej Division, Ahmedabad Rural, Ahmedabad) Address : 6-Raghukul Bungalows, Opp. Gulab Tower, Sola, Ahmedabad Respondents WITH [CASE NUMBER] [ENTITY] through its Executive Committee Member 23-25, Prospect Chambers Annexe, 2nd Floor, Dr. D. N. Rd, Mumbai - 01 Petitioners Versus 1. [ENTITY] through Joint Director, Zone-I, CBI, 13th Floor, Plot No. C-35A, `G' Block, Bandra Kurla Complex (BKC), Near MTNL Exchange, Bandra (East), Mumbai 400 098 2. [ENTITY] (Original accused no. 7) Government Quarters, [ENTITY] 7/39 Uploaded on - 03/02/2018 Downloaded on - 04/02/2018 00:15:43 wp.5434.17 & 132.18.1.doc Pratap Nagar, Udaipur, 345, Jalpura, [ENTITY] 3. Home Department, [ENTITY], Through its Principal Secretary, Mantralaya Annex, Mumbai Respondents Mr. [ENTITY] a/w Mr. [ENTITY] i/b Ms. [ENTITY] and Mr. [ENTITY] for the Petitioners in WP/5434/2017 Mr. [ENTITY], Sr. Advocate i/b Mr. [ENTITY] for the Petitioners in WP/132/18 Mr. [ENTITY], A.P.P for the Respondent No.1-State in WP/5434/17 Mr. [ENTITY], A.P.P for the Respondent No.3-State in WP/132/18 Mr. [ENTITY] for the Respondent-CBI (No.2 in WP/5434/17 & No.1 in WP/132/18) Mr. [ENTITY] i/b Mr. [ENTITY] for the Respondent No.6 in WP/5434/17 and for the Respondent No. 2 in WP/132/18 Mr. [ENTITY] for the Respondent No. 12 in WP/5434/17 Mr. [ENTITY] for the Respondent No. 16 in WP/5434/17 Mr. [ENTITY] for the Respondent Nos. 20 to 24 in WP/5434/17 CORAM : [ENTITY], J. TUESDAY, 23rd JANUARY, 2018 & WEDNESDAY, 24th JANUARY, 2018 [ENTITY] 8/39 Uploaded on - 03/02/2018 Downloaded on - 04/02/2018 00:15:43 wp.5434.17 & 132.18.1.doc ORAL ORDER :
1 Heard learned counsel for the parties. 2 Rule. Respondents waive notice through their respective counsel. 3 Rule is made returnable forthwith, with the consent of the parties and is taken up for final disposal. 4 By these petitions, the petitioners have impugned the order
dated 29th November, 2017 passed by the learned Additional Sessions Judge, City Civil and Sessions Court, Greater Mumbai, below Exhibit 1502 in [CASE NUMBER], by which, the learned Sessions Judge banned the print, electronic and social media from publishing/posting and/or reporting the court proceedings, until further orders.
wp.5434.17 & 132.18.1.doc 5 The short question that arises for consideration in both the aforesaid petitions essentially is, whether the learned Judge had the power to pass the impugned order i.e. to ban the media from publishing and reporting the court proceedings, in the absence of any provision under the [ACT] (hereinafter referred to as `the Code'). 6 Mr. [ENTITY] and Mr. [ENTITY], learned counsel for the petitioners appearing in [CASE NUMBER] submitted that the learned Judge had no power under the Code, to gag the media/Press and as such, the impugned order dated 29th November, 2017 was clearly illegal and unsustainable in law. They submitted that the powers, if any, to pass postponement orders vests only with the High Courts and the Supreme Court and that the subordinate criminal courts have no such inherent powers to pass such orders. Learned counsel relied on the Judgments of the Apex Court in the case of [ENTITY] vs. SEBI & Ors.1 and in the case of [ENTITY] & Ors. vs. [ENTITY] & Anr.2 in support of their submission. They submitted that by the impugned order, the learned Judge has taken away the fundamental right of [CASE NUMBER] wp.5434.17 & 132.18.1.doc the Press to report the court proceedings. Mr. [ENTITY] further submitted that [SECTION] of the Code and [SECTION] of the [ACT], contemplate for in-camera proceedings; that under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the Code, Courts even have injunctory powers; that there are also provisions in some Special Statutes which ban the media from reporting e.g. [SECTION] of [ACT] (`[ACT]'); [SECTION] of the [ACT] (`NIA'); [SECTION] of the [ACT] (`[ACT]'); [SECTION] of the [ACT] (`[ACT]'); etc. According to the learned counsel, the trial in question is an `open trial', and therefore, the learned Judge, in the absence of any provision, had no power to ban the media/Press from reporting. 7 Mr. [ENTITY], learned senior counsel appearing for the petitioners in [CASE NUMBER], also submitted that the learned Judge had no power/jurisdiction to pass the impugned order, and that the wp.5434.17 & 132.18.1.doc said order was also in contravention of the provision of [SECTION] of the Code. He submitted that there are only 3 or 4 contingencies in which a Court i.e. the High Court and the Supreme Court can restrain the media from publication and that too, for a short duration, i.e. when there is a real and imminent danger to a fair trial; that there is real and substantial risk of prejudice to the administration of justice or to the fairness of trial; and where reporting by the Press would shift the burden of innocence. 8 He further submitted that the freedom of speech and expression guaranteed under [SECTION] of the [ACT], includes freedom of the Press and that the same has been recognized as a fundamental right. Learned counsel has tendered a compilation of the following judgments, [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [ENTITY] vs. Kali Singh 8; [ENTITY] & 3 1950 SCR 605 4 1962 (3) SCR 842 5 1972(2) SCC 788 6 (1985) 1 SCC 641 7 (1989) 2 SCC 574 8 (1977) 1 SCC 57 wp.5434.17 & 132.18.1.doc Ors. vs. Delhi (State Administration)9; [ENTITY] (supra); [PRECEDENT] & Ors.10; [ENTITY] (supra); [PRECEDENT]; [PRECEDENT] & Anr. 12; and [PRECEDENT] in support of his submissions. 9 Mr. [ENTITY], learned counsel for the CBI submitted that the CBI had no stand in the matter and would subject to the orders of the Court. 10 Mr. [ENTITY], learned counsel for [ENTITY] (original accused No. 7)-the respondent No. 2 in [CASE NUMBER] and respondent No. 6 in [CASE NUMBER] opposed the petitions. He submitted that no interference was warranted in the impugned order. He submitted that since the case has a chequered history, there is an apprehension to the lives and safety of witnesses, the prosecuting advocates and the defence advocates. He submitted that an accused has a right to a 9 (1988) 3 SCC 609 10 (1988) 4 SCC 592 11 (995) (O) MP LJ 995 12 (2013) 136 DRJ 223 13 (2013) 10 SCC 37 wp.5434.17 & 132.18.1.doc free and fair trial and considering the sensitivity of the said case, the learned Judge has rightly restrained the media from reporting the case. 11 Mr. [ENTITY] appearing for respondent No. 16 in [CASE NUMBER] also opposed the petitions. He submitted that this is one of the most sensitive case, as top politicians and IPS Officers are involved in the case. He further submitted that the accused are the victims of political parties, as a result of which, great prejudice is being caused to the accused. He further submitted that not only the accused but also the defence advocates apprehend danger to their lives, if the media is allowed to publish and report the trial. According to the learned counsel, reporting will also affect the national security.
12 Mr. [ENTITY] appearing for respondent No. 12 and Mr. [ENTITY] appearing for respondent Nos. 20 to 24 in [CASE NUMBER] supported Mr. [ENTITY] and Mr. [ENTITY]. Though, private notices in [CASE NUMBER] were served on all other wp.5434.17 & 132.18.1.doc accused/their Advocates in trial Court, none appeared on their behalf. Service affidavits have been tendered in [CASE NUMBER]. Same are taken on record.
13 Before I proceed to decide the issues/questions raised in these petitions, it would be necessary to advert to a few facts, which have a bearing in the said case. The case relates to the killing of [ENTITY], his wife-[ENTITY] and their close associate-[ENTITY], allegedly in a fake encounter. Considering the involvement of high ranking officials of the State of Gujarat, including senior police officers, the Apex Court handed over the investigation of the said case to CBI in January, 2010. In 2012, the Apex Court transferred the `[ENTITY] case' from Gujarat to Mumbai, on a transfer petition preferred by the CBI ([CASE NUMBER]). The Apex Court in para 37 of its judgment in the transfer petition reported in [PRECEDENT], observed as under :
"37. On hearing Mr [ENTITY], appearing for the CBI, Mr [ENTITY] representing the writ petitioner, Mr [ENTITY] appearing on behalf of the State of Gujarat, and the counsel appearing for the different accused and Mr [ENTITY], the learned amicus curiae, and on a careful consideration of all the material facts and circumstances as also having regard to the wp.5434.17 & 132.18.1.doc past experience in the [ENTITY] matter, we are convinced that in order to preserve the integrity of the trial it is necessary to shift it outside the State. The decision to transfer the case is not a reflection on the State judiciary and it is made clear that this Court reposes full trust in the judiciary of the State. As a matter of fact, the decision to transfer the case outside the State is intended to save the trial court in the State from undue stress and to avoid any possible misgivings in the minds of the ordinary people about the case getting a fair trial in the State."
(emphasis supplied) 14 After the case was transferred to Mumbai, several accused filed applications seeking their discharge from the said case. It is informed that out of 38 accused, 15 accused have been discharged and 22 accused are facing trial, in the said case. The learned Sessions Judge framed charges as against the said 22 accused. Before the recording of evidence of the first prosecution witness commenced, the respondent-[ENTITY] (original accused No. 7) filed an application (Exhibit 1502) seeking a ban on the print, electronic and social media from publishing, posting and/or reporting the proceedings till the judgment. All accused in the said case supported the said application. Pursuant thereto, the learned Additional Sessions Judge, after hearing the parties, including the Reporters present in the Court, passed the impugned order dated 29th October, 2017. Vide the said order, the learned Judge gagged the media from reporting/publishing any of the proceedings during the trial in the matter, until further orders.
wp.5434.17 & 132.18.1.doc 15 The broad questions raised in the present petitions are; whether the learned Judge had the power/jurisdiction to gag the media; whether the impugned order is contrary to the very principle of an open trial as mandated by [SECTION] of the Code; and whether the gag order violated the petitioners' fundamental rights guaranteed to them under [SECTION]
(a) of the [ACT].
16 Before I proceed to deal with the said questions, it would be apposite to consider [SECTION] of the Code and the law in regard to the same. [SECTION] of the Code reads thus :
"327. COURT TO BE OPEN. - (1) The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.
(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under [SECTION], [SECTION], [SECTION], [SECTION] or [SECTION] or [SECTION] of the [ACT] shall be conducted in camera:
wp.5434.17 & 132.18.1.doc Provided that the presiding judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the court:
Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.
(3) Where any proceedings are held under sub- section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the court:
Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties." (emphasis supplied) The language of [SECTION] itself indicates that the place where the Criminal Court is held for the purpose of inquiry and trial of any offence shall be deemed to be an open court. An open trial is the rule and wherever exceptions are carved out, they are made only to secure the ends of justice. [SECTION] declares that the place of inquiry and trial of any offence shall be deemed to be an "open court". The words "open court"
used in [SECTION] of the Code are significant. [SECTION] embodies the principle of public trial. The [SECTION] gives the Presiding Judge or the Magistrate, if he thinks fit, to order at any stage of any inquiry or trial of any particular case, that the public generally, wp.5434.17 & 132.18.1.doc or any particular person, shall not have access to, or be or remain in, the room or building used by the Court. Thus, the Presiding Officer has the power to remove any person or the public generally from the Court room/building, as a public trial is not a disorderly trial but an orderly trial.
As far as [SECTION] are concerned, they do not apply to the facts of the case and as such, it is not necessary to deal with the same in detail. Suffice to state, that [SECTION], only creates an exception to the general rule and states that cases relating to sexual offences i.e. [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] or [SECTION] of the [ACT] shall be conducted in-camera and under [SECTION], where proceedings are held under sub-section (2), it is not lawful for any person to print/publish any matter relating to such proceedings, except with the previous permission of the Court. The said ban is not an absolute ban, inasmuch as, the [SECTION] provides, that the ban on printing/publication may be lifted, subject to maintaining confidentiality of the name and address of the parties.
wp.5434.17 & 132.18.1.doc
17 Coming back to [SECTION] of the Code, and as noted earlier, an `open trial' is the general rule. It is not in dispute that the trial in the present case is an open trial, inasmuch as, the Press/media and the public are permitted to attend the same. However, the learned Sessions Judge, by the impugned order, has gagged the media/Press from reporting/publishing the trial Court proceedings. Apart from the question of power of the learned Sessions Judge to pass the impugned order, it is also necessary to spell out the underlying principles behind an `open trial'. It is one of the salutary principles of the administration of justice, that justice must not only be done but must also seen to be done and an `open trial' reaffirms the said principle. The other fundamental principles justifying public access to criminal trials are; (i) that crime is a wrong done more to the society than to an individual; (ii) it involves a serious invasion of rights and liberties of other person(s), and as such, people are entitled to know whether the justice delivery system is adequate or inadequate; (iii) whether the State is misusing the State machinery like the police, prosecutors and other public servants; (iv) whether the accused is dealt with fairly and not unjustly condemned and so on. Thus, when the State representing the society, seeks to prosecute a person, it must do so, openly, fairly and fearlessly. In this wp.5434.17 & 132.18.1.doc context, it would be apposite to reproduce the words of Lord [ENTITY] in the case of [PRECEDENT]14, which reads thus:
"It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves [ENTITY] over and over again. 'In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.' 'Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.' 'The security of securities is publicity.' " (emphasis supplied)
18 In [ENTITY] (supra), the Apex Court in the context of public access to criminal trials, observed in para 196 as under :
"196. There are numerous benefits accruing from the public access to criminal trials. [ENTITY] in his article, "First Amendment Right of Access to Pretrial Proceeding in Criminal Cases" (Emory Law Journal, V. 32( 1983) P. 618 to
688) neatly recounts the benefits identified by the Supreme Court of the United States in some of the leading decisions. He categorizes the benefits as the "fairness" and "testimonial improvement" effects on the trial itself, and the "educative" and "sunshine" effects beyond the trial. He then proceeds to state;
"Public access to a criminal trial helps to ensure the fairness of the proceeding. The presence of public and press encourages all participants to perform their duties conscientiously and discourages misconduct and abuse of power by judges, prosecutors and other participants. Decisions based on partiality and bias are discouraged, thus protecting the integrity of the trial process. Public access helps to ensure that 14 1913 A.C. 417 wp.5434.17 & 132.18.1.doc procedural rights are respected and that justice is applied equally.
Closely related to the fairness function is the role of public access in assuring accurate fact-finding through the improvement of witness testimony. This occurs in three ways. First, witnesses are discouraged from committing perjury by the presence of members of the public who may be aware of the truth. Second, witnesses like other participants, may be encouraged to perform more conscientiously by the presence of the public, thus improving the overall quality of testimony. Third, unknown witnesses may be inducted to come forward and testify if they learn of the proceedings through publicity. Public access to trials also plays a significant role in educating the public about the criminal justice process. Public awareness of the functioning of judicial proceedings is essential to informed citizen debate and decision making about issues with significant effects beyond the outcome of the particular proceeding. Public debate about controversial topics, such as, exclusionary evidentiary rules, is enhanced by public observation of the effect of such rules on actual trials. Attendance at criminal trials is a key means by which the public can learn about the activities of police, prosecutors, attorneys and other public servants, and thus make educated decisions about how to remedy abuses within the criminal justice system.
Finally, public access to trials serves an important `sunshine' function. Closed proceedings, especially when they are the only judicial proceedings in a particular case or when they determine the outcome of subsequent proceedings, may foster distrust of the judicial system. Open proceedings, enhance the appearance of justice and thus help to maintain public confidence in the judicial system."
(emphasis supplied) wp.5434.17 & 132.18.1.doc 19 In [PRECEDENT]. 15, the Apex Court observed, that in all civilized countries governed by the rule of law, all criminal trials have to be public trials, where public and press have complete access. Public access is essential if trial adjudication is to achieve the objective of maintaining public confidence in the administration of justice. It was further observed that publicity is the authentic hallmark of judicial functioning distinct from administrative functioning; that open trials serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion; that public trial restores the balance in cases when shocking crime occurs in the society; that people have inherent distrust for the secret trials and one of the demands of the democratic society is that public should know what goes on in court while being told by the press or what happens there, to the end that the public may judge whether our system of criminal justice is fair and right. It was further observed that criminal trial is a public event and what transpires is a public property and that open trial is the universal rule and must be scrupulously adhered to, except in exceptional and extraordinary circumstances.
[PRECEDENT] wp.5434.17 & 132.18.1.doc Thus, an `open trial' subserves the ends of justice. It acts as a safeguard for protection of the rights of all i.e. witnesses, accused, etc. and as such ensures fairness of the proceedings. Open trial is the rule and must be scrupulously adhered to, except under exceptional and extraordinary circumstances. [SECTION] recognizes the right to public trial. Closed proceedings foster distrust in the judicial system and hence, proceedings must be open proceedings, as it helps maintain public confidence in the judicial system. Needless to state, that there are statutory exceptions to the publicity rule. A number of Statutes restrict, empower or require the court to restrict admission to certain court proceedings and the publication of such proceedings, e.g. [SECTION] of the [ACT], [SECTION] of the [ACT], [SECTION] of the [ACT], [SECTION] of the [ACT], [SECTION] of [ACT], [SECTION] of [ACT], [SECTION] of [ACT], [SECTION] of [ACT], etc. Apart from this statutory exceptions, publicity of proceedings can be restricted `in the interest of justice; where the Court is satisfied beyond doubt that the ends of justice would be defeated if the case would be tried in open Court.
wp.5434.17 & 132.18.1.doc 20 Coming to the question of the powers of the subordinate criminal courts, it is pertinent to note that the subordinate criminal courts do not have any inherent powers vested in them under the Code. It is only the `courts of record' i.e. the High Courts and the Supreme Court, that are vested with such powers i.e. inherent jurisdiction to pass postponement orders. A perusal of the judgments mentioned hereinafter, show that subordinate criminal courts have no inherent powers under the Code. The Apex Court in [ENTITY] (supra) in para 4 has observed as under :
"4. We might mention that the order dated November 23, 1968 was a judicial order by which the Magistrate had given full reasons for dismissing the complaint. Even if the Magistrate had any jurisdiction to recall this order, it could have been done by another judicial order after giving reasons that he was satisfied that a case was made out for recalling the order. We, however, need not dilate on this point because there is absolutely no provision in the [ACT] (which applies to this case) empowering a Magistrate to review or recall an order passed by him. [ACT] does contain a provision for inherent powers, namely, [SECTION] which, however, confers these powers on the High Court and the High Court alone. Unlike [SECTION] of [ACT], the subordinate criminal courts have no inherent powers. In these circumstances, therefore, the learned Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision.
" (emphasis supplied) wp.5434.17 & 132.18.1.doc
The same was reiterated by the Apex Court in the case of [PRECEDENT]. 16 and in the case of [PRECEDENT] 17. In Super Cassettes Industries Ltd. (supra), the Apex Court in para 25 observed as under :
"25. Referring to the decision of this Court in [ENTITY] v. Kali Singh (1977) 1 SCC 57, Mr. [ENTITY] urged that in the said decision, this Court was called upon to decide as to whether a Magistrate had the authority to review or recall his order. It was held that unlike [SECTION] of the [ACT], which vests the civil courts and certain tribunals with inherent powers, the subordinate criminal courts had no such inherent power, since there was absolutely no provision in the [ACT] empowering a magistrate to exercise such powers."
Similarly in the case of [ENTITY] (supra), the Apex Court observed in para 50 as under :
"50. In the light of the law enunciated hereinabove, anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the content of the publication and its effect, an infringement of his/ her rights under [SECTION] to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ court and seek an order of postponement of the offending 16 (2013) 2 SCC 357 17 (2012) 5 SCC 488 wp.5434.17 & 132.18.1.doc publication/broadcast or postponement of reporting of certain phases of the trial (including identity of the victim or the witness or the complainant), and that the court may grant such preventive relief, on a balancing of the right to a fair trial and [SECTION] rights, bearing in mind the abovementioned principles of necessity and proportionality and keeping in mind that such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. Such neutralizing device (balancing test) would not be an unreasonable restriction and on the contrary would fall within the proper constitutional framework."
(emphasis supplied) In [ENTITY] & Ors. (supra), the nine Judges [ACT] Bench, in para 30, observed as under :
"30. If the High Court thus had inherent power to hold the trial of a case in camera, provided, of course, it was satisfied that the ends of justice required such a course to be adopted, it would not be difficult to accept the argument urged by the learned Attorney General that the power to hold a trial in camera must include the power to hold a part of the trial in camera, or to prohibit excessive publication of a part of the proceedings at such trial. What would meet the ends of justice will always depend upon the facts of each case and the requirements of justice. In a certain case, the Court may feel that the trial may continue to be a public trial, but that the evidence of a particular witness need not receive excessive publicity, because fear of such excessive publicity may prevent the witness from speaking the truth. That being so, we are unable to hold that the High Court did not posses inherent jurisdiction to pass the impugned order. We have already indicated that the impugned order, in our opinion, prevented the publication of Mr. [ENTITY]'s evidence during the course of the trial and not thereafter."
wp.5434.17 & 132.18.1.doc 21 With regard to the powers of the Court to pass postponement orders, it would be useful to place reliance on the judgment of the Apex Court in the case of [ENTITY] (supra). The Apex Court in the said judgment observed in para 42 as under :
"42. At the outset, we must understand the nature of such orders of postponement. Publicity postponement orders should be seen in the context of [SECTION] not being an absolute right. The US clash model based on collision between freedom of expression (including free press) and the right to a fair trial will not apply to the [ACT]. In certain cases, even the accused seeks publicity (not in the pejorative sense) as openness and transparency is the basis of a fair trial in which all the stakeholders who are a party to a litigation including the judges are under scrutiny and at the same time people get to know what is going on inside the court rooms. These aspects come within the scope of [SECTION] and [SECTION]. When rights of equal weight clash, the Courts have to evolve balancing techniques or measures based on re-calibration under which both the rights are given equal space in the [ACT]al Scheme and this is what the "postponement order" does, subject to the parameters, mentioned hereinafter. But, what happens when the courts are required to balance important public interests placed side by side. For example, in cases where presumption of open justice has to be balanced with presumption of innocence, which as stated above, is now recognized as a human right. These presumptions existed at the time when the [ACT] was framed [existing law under [SECTION]] and they continue till date not only as part of rule of law under [SECTION] but also as an [SECTION] right. The constitutional protection in [SECTION] which protects the rights of the person for a fair trial is, in law, a valid restriction operating on the right to free speech under wp.5434.17 & 132.18.1.doc [SECTION], by virtue of force of it being a constitutional provision. Given that the postponement orders curtail the freedom of expression of third parties, such orders have to be passed only in cases in which there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice which in the words of Justice [ENTITY] is "the end and purpose of all laws". However, such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial (court proceedings), if reasonable alternative methods or measures such as change of venue or postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint. The order of postponement will only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period. It is not possible for this Court to enumerate categories of publications amounting to contempt. It would require the courts in each case to see the content and the context of the offending publication. There cannot be any straightjacket formula enumerating such categories. In our view, keeping the above parameters, if the High Court/ Supreme Court (being Courts of Record) pass postponement orders under their inherent jurisdictions, such orders would fall within "reasonable restrictions"
under [SECTION] and which would be in conformity with societal interests, as held in [PRECEDENT]. In this connection, we must also keep in mind the language of [SECTION] and [SECTION]. Freedom of press has been read into [SECTION]. After the judgment of this Court in [PRECEDENT], it is now well-settled that test of reasonableness applies not only to [SECTION] but also to [SECTION] and [SECTION]. For example, right to access courts under [SECTION], [SECTION] or wp.5434.17 & 132.18.1.doc 136 seeking relief against infringement of say [SECTION] rights has not been specifically mentioned in [SECTION]. Yet, this right has been deduced from the words "equality before the law" in [SECTION]. Thus, the test of reasonableness which applies in [SECTION] context would equally apply to [SECTION] rights. Similarly, while judging reasonableness of an enactment even the Directive Principles have been taken into consideration by this Court in several cases [see the recent judgment of this Court in [PRECEDENT]. Similarly, in [PRECEDENT], it has been held that rights not included in [SECTION] expressly, but which are deduced from the express language of the Article are concomitant rights, the restrictions thereof would not merely be those in [SECTION]. Thus, balancing of such rights or equal public interest by order of postponement of publication or publicity in cases in which there is real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial and within the above enumerated parameters of necessity and proportionality would satisfy the test of reasonableness in [SECTION] and [SECTION]. One cannot say that what is reasonable in the context of [SECTION] or [SECTION] is not reasonable when it comes to [SECTION]. Ultimately, such orders of postponement are only to balance conflicting public interests or rights in [SECTION] of the [ACT]. They also satisfy the requirements of justification under [SECTION] and [SECTION]."
(emphasis supplied) 22 Having regard to the aforesaid judgments, it is thus clear that the learned Judge, had no power under the Code to pass the impugned order. Infact, even the learned counsel for the respondent-accused were wp.5434.17 & 132.18.1.doc unable to point out the provision under which the learned Judge could have banned the media from publication/reporting of the trial court proceedings. It is thus abundantly clear, that it is only the High Courts and the Supreme Court that have the power to pass postponement orders, in exceptional circumstances for a brief period, and that subordinate criminal courts do not have any inherent powers under the Code. In the absence of any provision under the Code conferring power on the learned Judge to pass such an order, the impugned order gagging the media/Press from publishing/posting and/or reporting the trial court proceedings was clearly illegal, unsustainable and contrary to law.
23 The application for banning the media from publishing/posting and/or reporting the proceedings was filed by the respondent-[ENTITY] and the same was supported by all the accused and their counsel. The said application preferred by the original accused No.7-[ENTITY] reads thus :
"May It Please Your Honor, This Hon'ble Court may graciously be pleased to ban the print, electronic and social media from publishing, posting, and/or reporting the proceeding of the present trial till its judgment, as wp.5434.17 & 132.18.1.doc such act will prejudice the case of prosecution, defense. The same may create security problem for accused facing trial, prosecution witness, Ld. Prosecutor as well as Defense Team. The case is having chequered history and mis-reporting has already caused prejudice to both side.
Mumbai Date 29th November 2017 Advocate for Accused no.7"
24 A perusal of the said application shows that the grounds for banning the media from publishing, posting and/or reporting the proceedings till its judgment, was on the premise - (i) that such an act would prejudice the case of the prosecution, defence; (ii) the same would create security problems for the accused facing trial, prosecution witnesses, learned Prosecutor as well as the defence Advocates; (iii) that the case having a chequered history and misreporting of the same has already caused prejudice to both the sides.
25 A perusal of the impugned order shows that the learned Judge was essentially swayed by the sensationalism of the said case. Sensationalism, by itself, cannot be the sole ground for banning the media from publishing, posting and/or reporting proceedings. Similarly, mere wp.5434.17 & 132.18.1.doc allegation that there is an apprehension that justice will not be done in a given case or that there are general allegations of surcharged atmosphere alone would not suffice. The Court has to see whether the apprehension/doubt is reasonable or not and the basis for such an apprehension. Learned counsel for the respondent-accused have not been able to show any basis for such apprehensions. Although, some of the learned counsel for the respondents submitted that they feared for their lives and for the lives of the accused or apprehend some untoward incident, nothing has been brought on record to substantiate the same, except bare words made across the bar. Similarly, how national security would be affected, if media is permitted to report, the proceedings, is in the realm of speculation, without any basis. Thus, the apprehensions expressed are not such that they do not show real and substantial risk of prejudice being caused to the accused or a clear and present danger to a fair trial. In fact, the record shows that till date, almost 15 accused have been discharged from the said case and as such the apprehension is misplaced and unjustified.
wp.5434.17 & 132.18.1.doc 26 The learned counsel for the respondent accused also submitted that the death of a former Judge dealing with the said case and the publicity attached to it would jeopardize their rights to a fair trial. Infact, before the argument commenced, Mr. [ENTITY], learned counsel for the respondent- [ENTITY] (accused No.25) urged that the matter be deferred, as the Apex Court was hearing Public Interest Litigations (PILs) in connection with the death of a former Judge dealing with the said case and that one of the reasons given for banning the media from publication was the manner in which the death of the said Judge was distorted. Learned counsel for the petitioners vehemently opposed the deferring of these petitions and submitted that the said petitions had no bearing with the PILs pending before the Apex Court. Perused the order of the Apex Court. Admittedly, the petitions before the Apex Court are with respect to the death of Judge [ENTITY] and therefore in that context, it was stated that no other High Court including the High Court of Bombay will entertain the petition with regard to the subject matter in issue. The present petitions are not even remotely connected with the PILs or the subject matter of the PILs, before the Apex Court and as such there is no question of deferring the hearing of these petitions.
wp.5434.17 & 132.18.1.doc 27 The case in hand has a chequered history. As noted earlier, the investigation in the said case, having regard to the peculiar facts of the case, was handed over to the CBI by the Apex Court in 2010 and in 2012 the case was transferred from Gujarat to Mumbai for trial. Merely because a given case is sensational, does not warrant a ban on publication/publishing of the court proceedings. Certainly, the public has a right to know what is happening in the proceedings. The right to know flows from the rights of the Press under [SECTION] of the [ACT], i.e. to publish and circulate information. The Apex Court in the case of [PRECEDENT]. 18, in para 31 has observed that although [SECTION] does not mention the freedom of the Press, it is the settled law that freedom of speech and expression includes freedom of the Press and circulation. Similarly, in the case of [PRECEDENT], it is said that there can be no doubt that liberty of the Press is an essential part of the freedom of speech and expression guaranteed by [SECTION]. The Press has the right of free propagation and free 18 (1972) 2 SCC 788 19 AIR 1958 SC 578 wp.5434.17 & 132.18.1.doc circulation without any previous restraint on publication. 28 Similarly, in the case of Sakal Papers (P) Ltd. (supra), it is said that the freedom of speech and expression guaranteed by [SECTION] gives a citizen the right to propagate and publish his ideas, to disseminate them, and to circulate them either by words of mouth or by writing. 29 Needless to state, that in any democratic society, the open justice rule must be the norm and covertness, the exception. The right to open justice flows from the right to a fair trial. The importance of public trial in a democratic country governed by the rule of law can hardly be overemphasized, as the primary function of the judiciary is to do justice between the parties, which bring their causes before it. The right of the public to information flows from the right of the Press under [SECTION]
(a) of the [ACT]. The media, by reporting court proceedings, is fulfilling the public's right to information about the working of the courts. Infact, the media not only exercises its own right to freedom of expression under [SECTION] but it also serves a larger public purpose by disseminating or being the carrier of information, which otherwise is not wp.5434.17 & 132.18.1.doc easily available or accessible to the public, at large. In that sense, the Press are the eyes and ears of the public, who, by reporting fulfill the public's right to know, about the happenings in court proceedings. The Press is the most powerful watchdog of public interest, in a democracy. Infact, the presence of Press and public in criminal trials encourages all participants to perform their duties diligently and conscientiously. It discourages misconduct and abuse of power by the prosecuting agency, prosecutors, judges and all other participants. It discourages decisions based on partiality and bias. It discourages witnesses from committing perjury. In that sense, the presence of Press and public protects the integrity of the trial; and public awareness of court proceedings helps maintain public confidence in the judicial system. As observed in [PRECEDENT] (supra), "Publicity is the soul of justice. Where there is no publicity, there is no justice". The interests of the society are not to be treated with disdain and as persona non-grata. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth, has to be fair to all concerned i.e. the accused, the victims and the society. A fair trial is one, where there is a balance of competing interests of the accused, the victim and the society.
wp.5434.17 & 132.18.1.doc 30 As far as the witnesses are concerned, they must be protected at all costs as [ENTITY] has rightly said "that the witnesses are the eyes and ears of justice". If truth is to be ultimately arrived at, the eyes and ears of justice have to be protected, so that, justice does not get incapacitated. Needless to state, that it is always open for the prosecution, if necessary, to request the Court to conceal the identity of the witnesses, and to give protection to the witnesses, if the need so arises. 31 Accordingly, for the reasons set out hereinabove, the petitions are allowed. The impugned order dated 29th November, 2017 passed by the learned Additional Sessions Judge, City Civil and Sessions Court, Greater Mumbai below Exhibit 1502 filed in [CASE NUMBER], is quashed and set-aside. 32 Rule is made absolute in the above terms.
33 All concerned to act on the authenticated copy of this order.
wp.5434.17 & 132.18.1.doc [ENTITY], J.