WP (Crl.) No.796/2007 Page 1 of 112 * HIGH COURT OF DELHI : NEW DELHI + WP (CRL.) NO. 796/2007 Judgment reserved on: May 2, 2008 % Judgment delivered on: August 21st, 2008 Court on its own motion …Petitioner Through: Mr. Arvind Nigam, Advocate and Amicus Curiae Versus State & 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 WP (Crl.) No.796/2007 Page 2 of 112 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. WP (Crl.) No.796/2007 Page 3 of 112 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. WP (Crl.) No.796/2007 Page 4 of 112 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 WP (Crl.) No.796/2007 Page 5 of 112 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. WP (Crl.) No.796/2007 Page 6 of 112 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 WP (Crl.) No.796/2007 Page 7 of 112 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, WP (Crl.) No.796/2007 Page 8 of 112 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. WP (Crl.) No.796/2007 Page 9 of 112 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 WP (Crl.) No.796/2007 Page 10 of 112 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 WP (Crl.) No.796/2007 Page 11 of 112 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 WP (Crl.) No.796/2007 Page 12 of 112 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 1 Available at www.manupatra.com WP (Crl.) No.796/2007 Page 13 of 112 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 WP (Crl.) No.796/2007 Page 14 of 112 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 WP (Crl.) No.796/2007 Page 15 of 112 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 WP (Crl.) No.796/2007 Page 16 of 112 intended to lead to a miscarriage