TMI Blog2009 (7) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... eople, including three policemen. Facing the trial, as the main accused, was a young person called Sanjeev Nanda coming from a very wealthy business family. According to the prosecution, the accident was caused by Sanjeev Nanda who, in an inebriated state, was driving a black BMW car at very high speed. The trial, commonly called as the BMW case, was meandering endlessly even after eight years of the accident and in the year 2007, it was not proceeding very satisfactorily at all from the point of view of the prosecution. The status of the main accused coupled with the flip flop of the prosecution witnesses evoked considerable media attention and public interest. To the people who watch TV and read newspapers it was yet another case that was destined to end up in a fiasco. It was in this background that a well known English language news channel called New Delhi Television (NDTV) telecast a programme on May 30, 2007 in which one Sunil Kulkarni was shown meeting with IU Khan, the Special Public Prosecutor and RK Anand, the Senior Defence Counsel (and two others) and negotiating for his sell out in favour of the defence for a very high price. Kulkarni was at one time considered the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion etc'. It also held that RK Anand and IU Khan had forfeited their right to be designated as Senior Advocates and recommended to the Full Court to divest them of the honour. In addition to this the High Court also sentenced them to fine of rupees two thousand each. 2. These two appeals by RK Anand and IU Khan respectively are filed under section 19 (1) of the Contempt of Courts Act against the judgment and order passed by the Delhi High Court. THE CONTEXT: 3. Before proceeding to examine the different issues arising in the case it is necessary to first know the context in which the whole sordid episode took place. It will be, therefore, useful to put together the basic facts and circumstances of the case at one place. The occurance in which six people lost their lives was reconstructed by the prosecution on the basis of police investigation as follows: The crime, the Police investigation proceedings before the Trial court: 4. On January 10, 1999 at about half past four in the morning a speeding vehicle crashed through a police check-post on one of the Delhi roads and drove away leaving behind six people dead or dying. As the speeding car hit the group of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice under section 161 of the Code of Criminal Procedure (CrPC). The following day he was shown Nanda's BMW car at Lodhi Colony Police Station and he identified it as the one that had caused the accident. On January 21, 1999 Kulkarni's statement was recorded before a magistrate under section 164 of CrPC. Before the magistrate, in regard to the accident, he substantially reiterated the statement made before the police, lacing it up with details about his stay in Delhi from January 7 and his movements on the evening before the accident. In the statement before the magistrate the manner of identification of Sanjeev Nanda was also the same with the addition that after the accident when the car moved again the person on the driving seat was trying to look for the way by craning out his head out of the broken glass window and thus he was able to see him from a distance of no more than three and a half feet when the car passed by his side. The police wanted to settle the question of the driver's identification by having Kulkarni identify Sanjeev Nanda in a test identification parade but Sanjeev Nanda refused to take part in any identification parade. Then, on March 31, 1999 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efending the action of the policemen the Jt. Commissioner had a lot of things to say about Kulkarni's conduct since he became a witness for the prosecution in the BMW case. He noted that he would never give his address or any contact number to any police official. His life style had completely changed. He lived in expensive hotels and moved around in big cars. The Jt. Commissioner enclosed with his report a copy of the print-out of the cell phone of Kulkarni (the number of which he had given to one of the police officers) that showed that as early as on July 17, 1999 he was in touch with the counsel for the defence RK Anand (one of the appellants) and his junior Mr. Jai Bhagwan, Advocate and even with Suresh Nanda, father of Sanjeev Nanda. He cited several other instances to show Kulkarni's duplicity. The long and short of the report was that Kulkarni was bought off by the defence. He was in collusion with the defence and was receiving fat sums of money from the family of the accused. He was trying to play the two ends against the middle and he was completely unreliable. 10. On September 30, the date fixed for his examination, Kulkarni was duly present in court. He was, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lysis and comparison with the blood stains found in the car and on his clothes, and the other by the defence under section 311 of CrPC for recalling nine prosecution witnesses for their further cross-examination. By order dated March 19, 2007 the trial court rejected both the applications. It severely criticised the police for trying to seek its direction for something for which the law gave it ample power and authority. It also rejected the petition by the defence for recall of witnesses observing that the power under section 311 of CrPC was available to the court and not to the accused. At the end of the order the court observed that the only witness in the case whose statement was recorded under section 164 of CrPC was Kulkarni and even though he was given up by the prosecution, the court felt his examination essential for the case. It, accordingly, summoned Kulkarni to appear before the court on May 14, 2007. Kulkarni thus bounced back on the stage with greater vigour than before. MEDIA INTERVENTION: 13. In the trial court the matter was in this state when another chapter was opened up by a TV channel with which we are primarily concerned in this case. On April 19, 2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l electronic device that comprised of a tiny black button-shaped lens attached to his shirt front connected through a wire to a small recorder with a microchip hidden at his backside. Before sending off Kulkarni she switched on the camera and waited outside the court premises in a vehicle. Deepak Verma from the TV channel was sent along to ensure that everything went according to plan. He was carrying another concealed camera and the recording device in his handbag. Kulkarni and Deepak Verma were able to meet IU Khan while he was sitting in the chamber of another lawyer. Kulkarni entered into a conversation with IU Khan inside the crowded chamber (the details of the conversation we will examine later on at its proper place in the judgment). The conversation between the two that took place inside the chamber was recorded on the microchips of both the devices, one worn by Kulkarni and the other carried by Deepak Verma in his bag. After a while, on Kulkarni's request, both IU Khan and Kulkarni came out of the chamber and some conversation between the two took place outside the chamber. The recording on the microchip of Kulkarni's camera was copied onto magnetic tapes and from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first met IU Khan who referred him to RK Anand. He then met some people sent by RK Anand, including someone whose name was `Lovely or something like that'. As to his objective he said quite righteously that he did the sting operation `in the interest of the judiciary'. In answer to one of the questions by the interviewer he replied rather grandly that he would ask the court to provide him security by the NSG and he would try to go and depose as soon as security was provided to him. In the second part of the interview the interviewer asked him about the accident and in that regard he said briefly and in substance what he had earlier stated before the police and the magistrate. Back to the Court: 22. It is noted above that by order dated March 19, 2007 the trial court had summoned Kulkarni to appear before it as a court witness on May 14, 2007. The defence took the matter to the Delhi High Court (in Crl. M. C. No.1035/2007 with Crl. M. 3562/2007) assailing the trial court order rejecting their prayer to recall some prosecution witnesses for further cross-examination and suo moto summoning Kulkarni under section 311 of CrPC, to be examined as a court witness. The matter w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name that he heard being uttered by the occupant(s) of the car and the number of persons he saw getting down from the car the rest of his statement under section 164 was correct. He said that actually three, and not two, persons had got down from the car. The court then asked him to identify the persons who came out of the offending car. Kulkarni identified Sanjeev Nanda who was present in court. He further said that the third occupant of the car was a hefty boy whom he did not see in the court. At this point IU Khan explained that he might be referring to Sidharth Gupta who was discharged by the order of the High Court. Kulkarni added that he was unable to identify the second occupant of the car and went on to declare, even without being asked, he could not say who came out of the driver's side. He was shown Manik Kapoor, another accused in the case, as one the occupants of the car but he said that after lapse of nine years he was not in a position to identify him. 24. On May 29 Kulkarni was cross examined on behalf of the Prosecution by IU Khan. The prosecutor confronted him with his earlier statements recorded under sections 161 and 164 of CrPC and he took it as opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. But later on RK Anand came twice on the TV and spoke with the two anchors giving his comments on what was being shown in the telecasts. We shall presently examine whether the programmes aired to the viewers were truly and faithfully based on the sting operations or whether in the process of editing for preparing the programmes any slant was given, prejudicial to the two appellants. This is of course subject to the premise that the Court has no reason to suspect the original materials on which the programme was based and it is fully satisfied in regard to the integrity and authenticity of the recordings made in the sting operations. That is to say, the recordings of the sting operations were true and pure and those were not fake, fabricated, doctored or morphed. 27. In regard to the telecast it needs to be noted that though the sting operations were complete on May 8, 2007 and all the materials on which the telecast would be based were available with the TV channel, the programme came on air much later on May 30. The reason for withholding the telecast was touched upon by the anchors who said in their introductory remarks that after the sting operations were complete and just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintained that in his meeting with Kulkarni he had said nothing wrong much less anything to interfere with the court's proceeding in the pending BMW case. Impact of the telecast: 30. On the same day IU Khan withdrew from the BMW case as Special Public Prosecutor. Before his withdrawal, however, he produced before the trial court a letter that finds mention in the trial court order passed on that date, written in the hand of Kulkarni stating that he collected the summons issued to him by the court from SHO, Lodhi Colony Police Station on the advice of IU Khan. 31. The trial court viewed the telecast by NDTV very seriously and issued notice to its Managing Director directing to produce `the entire unedited original record of the sting operation as well as the names of the employees/reporters of NDTV who were part of the said sting operation' by the following day. 32. The further cross-examination of Kulkarni was deferred to another date on the request of the counsel replacing IU Khan as Special Public Prosecutor. 33. On June 1, 2007, RK Anand had a legal notice sent to NDTV, its Chairman, Directors and a host of other staff asking them to stop any further telecast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rochips used in all the four stings was actually five and not four). She also gave the undertaking, on behalf of NDTV that those original chips would be duly preserved. 37. On June 11 (during summer vacation) the Court recorded the statement of the counsel appearing for NDTV that its order dated May 31 had been fully complied with. On July 9 after hearing counsel for NDTV and on going through the earlier orders passed in the matter the Court felt the need for a further affidavit regarding the telecast based on the sting operation. It, accordingly, directed NDTV to file an affidavit `concerning the sting operation from the stage it was conceived and the attendant circumstances, details of the recording done, i.e., the time and place etc. and other relevant circumstances'. In compliance with the Court's direction, Poonam Agarwal filed an affidavit on July 23, 2007. Poonam Agarwal's Affidavit: 38. In her affidavit Poonam Agarwal stated that she was a reporter working with NDTV. She had joined the TV channel two years ago. She stated that NDTV was covering the BMW trial and had telecast a special programme on the case on April 20, 2007. Two days later Kulkarni co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mestic Terminal) and suggested to do a sting there. She, accordingly, took her to the airport on May 6, 2007. There she fitted him with the hidden camera and the recording device, switched the camera on and send him off to meet RK Anand. She herself waited for him in her car. After meeting with RK Anand, Kulkarni came out of the airport building and contacted her on the cell phone to find out where her car was parked. He then came back to the car. She switched off the camera and brought her back to her office. Kulkarni again contacted her to say that he was meeting RK Anand on May 8. This time she met him near the Delhi High Court and in her vehicle equipped him with the hidden camera and switched it on. She waited in her vehicle while Kulkarni got into the back seat of a black car outside the Delhi High Court in which RK Anand was sitting from before. The car with Kulkarni and RK Anand drove off and she followed them in her vehicle. They went to South Extension, New Delhi where Kulkarni was dropped. He came back to her vehicle and joined her. She then switched off the camera. She stated in the affidavit that all along the way from outside the Delhi High Court to South Extension th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presence and under her supervision. She, at all time, retained the custody of the original chips. At all successive stages she was personally present to ensure the factual accuracy of the edited version incorporated in the programme. But once the programme was made Kulkarni completely changed his position and strongly opposed the telecast of the programme. He asked her not to telecast the programme saying that he and his wife were facing threat to their lives. He would not clearly spell out the nature of the threat or its source but simply oppose the telecast. In view of his plea that he and his wife faced threat to their lives it was decided to defer the telecast till his examination-in-chief in the court was over. She then stated about Kulkarni's interview (without stating the date on which it was recorded) on camera in the NDTV studio in which he spoke about why and how he carried out the stings. Coming back to the telecast she said that she met Kulkarni on the dates of his appearance in the trial court on May 14, 17 and 29 but was not able to persuade him to agree to the telecast. He was not willing to give his consent even on May 29 but then the people at NDTV felt that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice. On the same day both RK Anand and IU Khan also tried to intervene in the Court proceedings and sought to put forward their point of view. The Court, however, declined to hear them, pointing out that there was no occasion for it at that stage since no notice was issued to them. 42. On August 7, 2007, the Court on a consideration of all the materials coming before it came to the view that prima facie the actions of RK Anand, IU Khan, Bhagwan Sharma and Lovely (who was dead by then) were aimed at influencing the testimony of a witness in a manner so as to interfere with the due legal process. Their actions thus clearly amounted to criminal contempt of court as defined under clause (ii) (iii) of section 2(c) of the Contempt of Courts Act. The Court accordingly passed the following order: From your aforesaid acts and conduct as discerned from the CDs and their transcripts, the affidavit 23rd July, 2007 of Ms. Poonam Agarwal along with its annexures, we are, prima facie, satisfied that you Mr. R.K. Anand, Senior Advocate, Mr. I. U. Khan, Senior Advocate, Mr. Sri Bhagwan, Advocate and Mr. Lovely have wilfully and deliberately tried to interfere with the due course of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by NDTV before the Court was six. Counsel for NDTV explained that the contents of two of the CDs were copied onto a single CD and hence, the number of CDs furnished to the noticees had come down to five. Counsel for the TV channel, however, undertook to provide fresh sets of six CDs to each of the noticees. 45. On September 28, 2007 counsel for IU Khan was granted permission for viewing the six CDs submitted by NDTV on the courts record. 46. On October 1, IU Khan filed his affidavit in reply to the notice issued by the High Court and RK Anand and Bhagwan Sharma filed their affidavits on October 3, 2007. YET ANOTHER TELECAST: 47. In the evening of December 3, 2007 NDTV telecast yet another programme from which it appeared that RK Anand and Kulkarni were by no means strangers to each other and the association between the two went back several years in the past. Kulkarni, under the assumed name of Nishikant, had stayed in RK Anand's villa in Shimla for some time. There he also had a brush with the law and was arrested by the police in Una (HP). He had spent about forty five days in jail. From the HP police record it appeared that after coming on the scene in the BMW cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... simply denied the charge of trying to interfere with the due course of judicial proceedings and administration of justice by the Courts. He took the stand that the expressions and words he is shown to have uttered in his meeting with Kulkarni were misinterpreted and a completely different meaning was given to them to suit the story fabricated by the TV channel for its programme. 52. RK Anand on his part took a posture of defiant denial and tried to present himself as one who was more sinned against than a sinner. Before coming to his own defence he raised a number of issues concerning the role of the mass media in general and, in particular, in reporting about the BMW case. He contended that it was NDTV that was guilty of committing contempt of Court as the programmes telecast by it on May 30, 2007 (and on subsequent dates) clearly violated the sub-judice rule. On this issue, however, he was strangely ambivalent; he would not file an application before the Court for initiating contempt proceedings against the TV channel but `invite' the Court to suo moto take appropriate action against it. He next submitted that the Court should rein in and control the mass media in reporti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... January 29, 2008) he submitted before the Court that from the CDs furnished to him he had got another CD of eight minutes duration prepared in order to highlight the tampering in the original recording. He sought the Court's permission to play his eight minute CD before it. On RK Anand's request the Court viewed the eight minute CD submitted by him on February 5, 2008. On February 27, 2008 the Court directed NDTV to file an affidavit giving its response to the CD prepared by RK Anand. As directed, NDTV filed the affidavit, sworn by one Dinesh Singh, on March 7, 2008. The affidavit explained all the objections raised by RK Anand in his eight minute CD. RK Anand then filed a petition (Crl. M. 4012/2008) on March 31, 2008 for sending the original CDs for examination by the Central Forensic Science Laboratory. 54. Besides this, RK Anand filed a number of interlocutory applications in course of the proceedings. Only three of those are relevant for us having regard to the points raised in the hearing of the appeal. Those were: (I) Crl.M. No. 13782 of 2007 filed on December 3, 2007 for summoning Poonam Agarwal for cross-examination, (II) Crl.M. No. 4010 of 2008 filed on March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecordings of the stings on the microchips and their reproduction on the CDs were completely genuine and unimpeachable and hence, those materials could not only be taken in evidence but fully relied on in support of the charge. 57. The High Court rejected all the interlocutory applications filed by RK Anand. As to the request to call Poonam Agarwal for cross-examination the Court observed that what transpired between RK Anand and Kulkarni in the sting meetings was there on the microchips and the CDs, copied from those chips, for anyone to see and no statement by Poonam Agarwal in her cross- examination would alter that even slightly. The Court further recorded its finding that the microchips were not subjected to any tampering etc. and hence, rejected the petition for proceeding against NDTV for perjury. In regard to the other petitions the Court observed that those were moved in desperation and for exerting pressure on NDTV and Poonam Agarwal. The Court further observed that the original chips were in the safe custody of NDTV and there was no need for those chips to be deposited in Court. The contents of the microchips were viewed by the proceedees and the CDs onto which the mic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior Advocate appearing for RK Anand and Mr. P. P. Rao, learned Senior Advocate appearing on behalf of IU Khan. We also heard Mr. Harish Salve, learned Senior Advocate representing NDTV, which though not a party in the appeals was, nevertheless issued notice by us. We also received valuable assistance from Mr. Gopal Subramanium, Senior Advocate and Mr. Nageshwar Rao, Senior advocate, the amici appointed by us having regard to the important issues involved in the case. We spent a full day viewing all the sting recordings, the recording of the programmes telecast by NDTV on May 30, 2007 and the eight minute CD prepared by RK Anand. Present at the viewing were all the counsel and one of the appellants, namely RK Anand. RK ANAND'S APPEAL 61. Before adverting to anything else we must deal with the appeals proper. In order to judge the charge of criminal contempt against the appellants it needs to be seen what actually transpired between Kulkarni and the two appellants in the stings to which they were subjected. And for that we shall have to examine the raw sting recordings. 62. Taking the case of RK Anand first we go to the sting done on him on May 6, 2007 when Kulkarni me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... karna hai! Kulkarni: Aur doosri baat....cross examine aap karoge mereko? (Anand laughs) Kulkarni: Jab bhi mereko zaroorat padegi main ghar pe aa jaunga, mujhe pata hai. Anand: Chalo let me come back tomorrow evening, you come and meet me in the night...in the farm....don't meet me outside. Kulkarni: Nahi aaj jaroori tha isliye main mila...nahi to main..I avoid it.. Anand: Nahi farm pe milna. Kulkarni: Aur doosri baat...yeh inhe bhi jante ho...yeh dekho its Commando...ok Anand: Ya, Tomorrow evening, bye! The second sting took place on May 8, 2007 in the car. Extracts from the transcript of that meeting are as follows. Kulkarni: kyon office mein bhi aur ghar pe bhi mat millo...yeh sare log mere peeche... Anand: yahan kyon milte ho phir? Kulkarni: Yahan koi nahi dekhta...acha abhi kya karna hai batao. Anand: Ab dekho tum xxxx tum xx .paise xxxxx Kulkarni: Main....yeh sab main kaise boloonga...ab yeh sab drama yeh kar rahe hai na...drama kar rehe hai poora hi...ab dekho jo hua so hua.... Anand: Baat to tumhare samne karonga, peeche to karongaa nahi.... Kulkarni: Vo to mainbhi janta hoo Anand: Samne baat hogi tumhare Kulkarni: Kal kya m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v ko? Anand: xx Kabhi kisika bura mat kiya karo. Panga lene ka kaya faydaa.! Kulkarni: Theek hai. Kulkarni: Nahi..lekin kaise kya karna hai vo aapne aur khan sahab ne decided karna hai..after all it was merely an accidentxxx. Anand: And he remained in jail for 8-9 months...yaar. Kulkarni: To main..to mere ko bhool jayoge aap..pentalis (45) din. Anand: Kaise. Anand: You were enjoying.. Kulkarni: Kya,... Anand: You were enjoying. Not that you were in a problem..uski to dikkat hai bechare kixxxx Kulkarni: Nahi Nahi..I'm also not interested. Aisi baat nahi hai.. Anand: Kabhi kisi ka bura nahi kara karo..aise bhala karne se hi aadmi to acha rehta hai..kisi ko jhoota nahi phasana chahiye..nikal dena chahiye... Kulkarni: Chalo theek hai. Aap ke kehne par main kuch bhi karne ke liye tayaar hoo..aur inki saari galat information hai. Anand: Aage jake bhi bhagwan ko jawaab dena hota hai yaar..aage bhi jawaab.... kya fayda karne..xxx Anand: Chhuraane se phir bhi ache rehta hai..phasane seto (abuses) bura hi kaam hota hai... main to kisi main interested hi nahi hoo..kisiko phasane main... Kulkarni: nahi vo to mujhe bhi pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng took place at the South Extension Market where first Bhagwan Sharma and then Lovely came to meet Kulkarni. Both claimed that they were sent to meet him by RK Anand. There is a very long transcript of the sting on the third meeting, first between Kulkarni and Bhagwan Sharma (who stayed with Kulkarni till Lovely came there) and then between Kulkarni and Lovely. The recording of the third sting further makes it evident that Kulkarni was trying (at least for the purpose of the sting) to sell himself off in favour of the accused Sanjeev Nanda for a price that he left to be fixed by RK Anand. However we see no reason to advert to the third sting, first because RK Anand was not personally present in the meeting and secondly and more importantly because the charge is fully established against him on the basis of the two stings done on him personally. This is of course, provided the recordings of the two stings truly and faithfully represent what actually transpired in those two meetings. Submissions on behalf of RK Anand: 65. Mr. Altaf Ahmed, learned senior counsel appearing for RK Anand, submitted that the High Court founded the appellant's conviction under the Contempt of Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reasonable doubt. 67. Seeking to buttress the point learned Counsel also referred to some more decisions of this Court in: (i) Anil Rattan Sarkar vs. Hirak Ghosh, (2002) 4 SCC 21 (ii) Bijay Kumar Mahanty vs. Jadu @ Ram Chandra Sahoo, (2003) 1 SCC 644 (iii) J. R. Parashar, Advocate vs. Prashant Bhushan, Advocate (2001) 6 SCC 735 and (iv) S. Abdul Karim vs. NK Prakash and others (1976) 1 SCC 975 68. There cannot be any disagreement with the proposition advanced by Mr. Ahmed but as noted above if the sting recordings are true and correct no more evidence is required to see that RK Anand was trying to suborn a witness, that is, a particularly vile way of interfering with due course of a judicial proceeding especially if indulged in by a lawyer of long standing. Admissibility of electronically recorded stored materials in evidence: 69. This leads us to consider the main thrust of Mr. Ahmed's submissions in regard to the integrity, authenticity, and reliability of the electronic materials on the basis of which the appellants were held guilty of committing contempt of Court. Learned counsel submitted that the way the High Court proceeded in the matter it was impossible t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence Act. The Court lay down that a tape recorded statement would be admissible in evidence subject to the following conditions Thus, so far as this Court is concerned the conditions for admissibility of a tape- recorded statement may be stated as follows: (1) The voice of the speaker must be duly identified by the maker of the record or by other who recognise his voice. In other words, it manifestly follows as a logical corollary that in the first condition for the admissibility of 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 a safe or off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and operation of the video camera and the chain of evidence concerning the videotape... ; (3) testimony that the photographs introduced at trial were the same as those [ the witness] had inspected immediately after processing, (substantive purposes); or (4) testimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area `photographed. 75. On the different issues germane to the admissibility of ESI Mr. Ahmed also referred to a decision of the District Court of Maryland, United State in Civil Action No. PWG-06-1893, Jack R. Lorraine and Beverly Mack vs. Markel American Insurance Company (downloaded from the internet). Mr. Ahmed also cited before us an article captioned `The Sedona Conference . Commentary on ESI Evidence Admissibility': A Project of The Sedona Conference Working Group on Electronic Document Retention Production (WGI)., published in Sedona Conference Journal, Fall 2008. The article deals extensively with the different questions relating to admissibility in evidence of ESI and one of its basic premises is that the mere fact that the information was created and stored within a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for directing NDTV to submit the original microchips before the Court and to give him copies made in Court directly from those chips remained lying on the record unattended till it was rejected by the final judgment and order passed in the case. Another petition requesting to send the microchips for forensic examination also met with the same fate. 79. Mr. Ahmed further submitted that the procedure followed by the High Court was so flawed that even the number of chips used for the different sting operations remained indeterminate. The trial court order dated June 1, 2007 referred to three chips produced on behalf of NDTV. The written statement of Poonam Agarwal made before the High Court on June 6, 2007 mentioned four chips and finally their number became five in her affidavit dated October 1, 2007. 80. He further submitted that the audio and the video recording on the basis of which the NDTV telecast was based and that was produced before the High Court was done by Kulkarni and it was he who was the maker of those materials. The Court never got Kulkarni brought before it either for the formal proof of the electronic materials or for cross-examination by the contemnors. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and false. He did not say that though he met Kulkarni on the two occasions, they were talking about the weather or the stock market or the latest film hits and the utterances put in their mouth were fabricated and doctored. Where then is the question of proof of authenticity and integrity of the recordings? It may be recalled that both in the eight o'clock and nine o'clock programmes, RK Anand was interviewed by the programme anchors and the live exchange was integrated into the programmes. Let us see what his first response to the telecast was when the anchor of the eight o'clock programme brought him on the show. [Following are the extracts from the exchange between the anchor and RK Anand] LIVE EXCHANGE BETWEEN TV ANCHOR RK ANAND: India 60 Minutes (BMW Special) 8 PM Segment 2 Sonia: We have RK Anand, on line with us. Mr. RK Anand, you have watched that report, what's your defence? RK Anand: My defence, what can be the defence you tell me. See, he just came to me and he was making a joke that should I make a demand for ₹ 2.5 crores and I said what the hell are you talking, you would want any amount you want ten, I meant this jokingly I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol of himself. xxxxxxxxxxxxxxxxxxxxxxxxxxxx Next is his response in course of the second telecast immediately following the first one: [Following are the extracts from the exchange between the anchor and RK Anand] 30th May - 9 PM BMW Special Barkha Dutt: Mr RK Anand if you can hear me, by now you have watched over two times on NDTV. The camera doesn't lie sir, u were meeting the prosecution's witness not once but twice, sir, how was this appropriate, how can you defend this sir? Anand: Barkha, we should talk in the right perspective. One must understand that this witness is a blackmailer, we have been fighting in the High Court even today that this witness should not be examined because he has been blackmailing us for the last so many years and when I was going out of Delhi, he appeared suddenly at the airport, and starts talking to me and say should I make it 2.5 crores. I laughed at him and what the hell are you talking, u demand 5 crores, I'll cross- examine you. This is my first reaction to that one. Barkha: But Mr Anand if he's a blackmailer, why did you meet him a second time in your own car a second time outside the Delhi High Court, if he's a bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impliedly admitted meeting Kulkarni for the second time in the car simply stating that he didn't ask Kulkarni to sit in the car and he did not ask him to come to the office. But about half an hour later, to the anchor of the second programme, though admitting meeting Kulkarni at the airport lounge, RK Anand completely denied meeting him in the car or anywhere else for the second time. However, as we shall see presently the denial was quite false. 85. We have gone through the transcripts of the exchange between the two anchors and RK Anand a number of times and we have also viewed the programme recorded on CDs. To us, RK Anand, in his interactions with the programme anchors, appeared to be quite stunned at being caught on the camera in the wrong act, rather than outraged at any false accusations. 86. It is noted above that immediately after the telecast RK Anand sent a legal notice to NDTV threatening legal actions against them and demanding a huge sum as compensation. NDTV gave its replay to the legal notice and thereafter RK Anand didn't pursue the matter any further. Meeting with Kulkarni in car admitted: 87. RK Anand filed his reply affidavit in response to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inform the High Court about it when the Criminal Revision against the trial court order summoning Kulkarni as court witness was heard on several dates in May 2007 before the telecast of the programme by NDTV. He was equally duty bound to inform the trial court about Kulkarni's approaches and the sting done on him by Shri Bhagwan when Kulkarni was examined before it on May 14, 17 29. Referring to sting recordings to show innocence: 90. Further, interestingly, though calling the sting recordings fabricated, manufactured, and distorted, he also relies on the very same sting recordings to make out some point or the other in his defence. For example, in paragraph S of the affidavit it is stated as follows: S. That in fact, this alleged witness Sunil Kulkarni had earlier attempted to meet the Respondent in his office. It is a matter of chance that Shri Amod Kanth the then Director General of Police, Arunachal Pradesh was present with the Respondent in his office. Sunil Kulkarni was rebuffed, rebuked and was asked to leave Respondent's office in the presence of Shri Kanth. Thereafter, Sunil Kulkarni was physically thrown out from the office of Respondent. Shri Amodh K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deponent wanted him to make a statement in a particular manner. It is not that the deponent was trying to influence the witness. The witness had already taken a decision to make a statement in a particular manner not at the instance of the deponent. Further in Paragraph 23 23.........The below noted conversation would substantiate the stand of the deponent. Kul: kitna mango. Anand: chodo...baat samjha kar...aadmi ki zindagi main aur Bhi bade kaam aate hain. Aisa nahi karte The whole conversation about reasonableness was in the form of an admonishment and advice so that no money is demanded. If the deponent wanted to deal with the witness or influence the witness or negotiate the terms of settlement, at that point of time, the deponent could have discussed since the demand of 2.5 crores was already allegedly made by the witness but categorically telling the witness to not to talk about the money and reminding of the relations would negate the discussion about the money part in the whole transcript. The reference to the utterances by Sunil Kulkarni. Kul: isme bachana hain usko sanjeev ko.. Anand: kabhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial from chips into CDs, via the intermediary medium of tapes. Shri Singh further explains the gap occurring at certain points of the recording as due to displacement of the ear-plus connector i.e. the device uses to attach the button lens and the microphone with the recording device. 94. Mr. Altaf Ahmed also made the grievance that the High Court failed to consider his defence. According to him NDTV had conceived the sting operation as pre-empted measure against Shri Anand, who was consulted in his professional capacity in connection with a matter in which NDTV in collusion with one Mrs. Sumana Sain and IRS officer was indulging in massive tax evasion. The materials in support of the allegations and in particular RK Anand's connection with the matter are so vague and tenuous that we don't consider it worthwhile to go into that question. 95. On a careful consideration of the materials on record we don't have the slightest doubt that the authenticity and integrity of the sting recordings was never disputed or doubted by RK Anand. As noted above he kept on changing his stand in regard to the sting recordings. In the facts and circumstances of the case, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hannel's vehicle parked outside the Court premises where Poonam Agarwal would be waiting for their return, saying that they are bound to be followed. Instead, they take an auto-rickshaw and go to Pargati Maidan at a short distance from the court. From there they contact Poonam Agarwal on mobile phone, who goes there and joins them and de-wires Kulkarni. Only partial transcript of the sting recording submitted to Court: 97. The recording of this sting operation is more than an hour long. But the transcript of this sting recording submitted to the Court by NDTV is confined only to the exchange between IU Khan and Kulkarni. In the absence of the full transcript it becomes difficult and cumbersome to see what transpired between Kulkarni and Deepak Verma immediately before and after the meeting with their subject. In our view that part of the sting recording was also highly relevant and important for judging the true import of the exchange that took place between Kulkarni and IU Khan. We are surprised that the High Court did not notice this big omission in the transcript of the first sting and we record our disapproval of NDTV in withholding the full transcript of the sting re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the recordings. In the statement made on that date she said that she had earlier submitted six CDs. Those CDs were duplicated from four spy camera chips which were recorded on different occasions. After copies of the CDs were given to the proceedees as directed in the order dated August 7, 2007 issuing show cause notices to them, a grievance was made before the Court that they were supplied only five CDs, though the number of CDs submitted before the High Court was six. It was then explained on behalf of NDTV that the contents of two CDs were copied onto a single one and thus the number of CDs was reduced from six to five. It was of course stated that a fresh set of six CDs each would again be supplied to all the three proceedees. The High Court apparently accepted the explanation given by NDTV (High Court order dated 24.9.2007). But the lapse was far more serious as would appear from the affidavit dated October 1, 2007 filed by Poonam Agarwal to explain the position. In her affidavit she stated that in the first sting (on IU Khan) two spy cameras were used, one carried by Kulkarni and the other by Deepak Verma. The recording of the first sting was thus on two microchips one in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phs 14 and 15 of his memorandum of appeal as under: 14.... This finding is again against the material on record as the original chip of the button camera carried by Mr. Kulkarni was formatted by the NDTV in violation of the direction issued by the Hon'ble Court. This part of the conversation is not available in the transcript of the bag camera. 15. Because the CD of the button camera firstly cannot be relied upon as it was filed after the reply was filed by the appellant on 1.10.2007... Lapses have no effect on RK Anand's case or even on case of IU Khan: 102. We have recounted here some of the noticeable lapses committed by NDTV in the proceedings that were overlooked by the High Court. Having regard to seriousness of the proceeding we should have wished that it was free from such lapses. But it needs to be made absolutely clear that the irregularities pointed out above were in regard to the first sting concerning IU Khan. These in no way affect RK Anand or alter his position. The discussions and findings recorded above in respect of RK Anand thus remains completely unaffected by the mistakes pointed out here. 103. Further, having regard to the defence ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R Kulkarni: Khan Sahab, ek minute, chale jata hoo, mein sham to ghar pe xxxxaa jaon ga. Khan: Ha, ha who to ana hi hai, ghar pe nahi xxx Kulkarni: Who to abhi dilli mein aya hoo to aya hoo, ek second. Khan: In Delhi, you're our guest. Kulkarni: Inka nahi! Khan: Na inke nahi. Khan: Aapka aur hamara personal effort/rapport (not clear) hai Kulkarni: Who to alag hi baat hai. Khan: Aur, bhai yaar thanda peeke jana. Kulkarni: Nahi thanda nahi, bus ek second khali, kyonki wahi xxxx THEY COME OUT OF THE CHAMBER AND TALK Kulkarni: Summons Bombay challa gaya thaa, ab waha se reject ho ke ayaa hua hai. Ab loon ken na loon? Baad me mere ko raat ko ghar pe (Mr. Khan cuts in) Khan: Tum mere ko miloge kab, yeh batao? Kulkarni: Aap batao kyonki mere ko....SHO se meri baat hui hai. Aap usko...(Mr. Khan cuts in) Khan: Tum thehre kahan ho? Kulkarni: Main to thehre hoo out of Delhi. Khan: Out of Delhi? Kulkarni: Out of Delhi, Haan. Khan: Sham ko keh baje aaoge? Kulkarni: Aaj nahi aaonga...mein kal zarror...shamko. Sunday aaram r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 109. In coming to this conclusion, as is evident from the above quoted observation the High Court relied a great deal upon the conversations between Kulkarni and RK Anand (vide paragraphs 196, 197 198 of the High Court Judgment). 110. The High Court further held that when IU Khan asked Kulkarni whether he had met `Bade Saheb' he only meant RK Anand. It rejected IU Khan's stand that what he meant by the expression was a senior police officer. The High Court observed that no material was produced on behalf of IU Khan in support of the statement that in course of his deposition before the trial court Kulkarni used the expression `Bade Saheb' to mean a senior police officer. It further observed that in the sting operation, just before the conclusion of the meeting, Kulkarni had said that he had met K.K. Paul (who was then the Police Commissioner). The passage referred to is as follows; Kulkarni: Main, vese meri K K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmal. IU Khan was aware that Kulkarni was on equally, if not more familiar, terms with RK Anand. Coupled with this his failure to inform the prosecution or the Court about the connection between Kulkarni and RK Anand had the potential and the tendency to interfere or obstruct the natural course of the BMW case and certainly the administration of justice, particularly when Mr. Khan himself described Mr. Kulkarni as the prime witness in the BMW case and the `star witness of the prosecution'. Finally the court held 207. Under these circumstances, we are left with no option but to hold that Mr. Khan was quite familiar with Mr. Kulkarni; Mr. Khan was aware that Mr. Kulkarni was in touch with Mr. Anand; Mr. 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 no 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt before taking up the operation fraught with highly sinister implications. Mr. Rao also assailed the judgment coming under appeal on a number of other grounds. SUBMISSIONS CONSIDERED: 115. We have carefully gone through all the materials concerning IU Khan. We have perused the transcript of the exchange between Kulkarni and IU Khan and have also viewed the full recording of the sting several times since the full transcript of the recording is not available on the record. IU Khan's conduct quite improper: 116. We have not the slightest doubt that the exchange between Kulkarni and IU Khan far crosses the limits of proper professional conduct of a prosecutor (especially engaged to conduct a sensational trial) and a designated Senior Advocate of long standing. We are not prepared to accept for a moment that on seeing Kulkarni suddenly after several years in the company of a `burly stranger' (Deepak Verma) IU Khan became apprehensive about his personal safety since in the past some violent incidents had taken place in the court premises and some lawyers had lost their lives and consequently he was simply play-acting and pampering Kulkarni in order to mollify h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the other was a prosecution witness, later dropped from the list of witnesses. A lawyer, howsoever, affable and sociable by disposition, if he has the slightest respect for professional ethics, would not allow himself such degree of familiarity with the witness of a criminal trial that he might be prosecuting and would not indulge with him into the kind of exchange as admittedly took place between IU Khan and Kulkarni. We are also not prepared to believe that in his conversation with Kulkarni, IU Khan did not mean what he was saying and he was simply trying to somehow get rid of Kulkarni. The video of the sting recordings leaves no room for doubt that IU Khan was freely discussing the proceeding of BMW case with Kulkarni and was not at all averse to another meeting with him rather he was looking forward to it. We, therefore, fully endorse the High Court finding that the conduct of IU Khan was inappropriate for a lawyer in general and a prosecutor in particular. CRIMINAL CONTEMPT??? 118. But there is a wide gap between professional misconduct and criminal contempt of court and we now proceed to examine whether on the basis of materials on record the charge of criminal cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Saheb and Mr. Kulkarni responded by saying that it is Mr. Anand. But the reference by the High Court to that particular piece of conversation between Deepak Verma and Kulkarni is neither complete nor accurate. We have noted earlier that the transcript submitted to the High Court by NDTV was incomplete and it covered only the exchange between Kulkarni and IU Khan. If the High Court had before it the full transcript of the entire recording it might have taken a different view. We have viewed the CD labelled as Button Spy cam Recording done by Sunil Kulkarni. IU Khan Sting Operation a number of times and we find that on the way back after meeting IU Khan, Kulkarni was being quite voluble. He spoke to Deepak Verma and gave him some instructions. A part of their conversation, relevant for our purpose is as follows: EXCHANGE BETWEEN KULKARNI DEEPAK VERMA: Kulkarni: Humming some tune Kulkarni: Don't go to car directly. We'll take an auto Deepak Verma: Take an auto? Kulkarni: Haan. Thoda sa aage chalen ge Kulkarni: Aap ne suna nahin? Bade Saheb se mile ya nahin? Deepak Verma: Haan Kulkarni: Ab dekho kal you will get [unclear..] y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when IU Khan asked Kulkarni whether he had met Bade Saheb' he meant RK Anand. 126. The High Court rejected IU Khan's explanation that what he meant by `Bade Saheb' was some senior officer in the police headquarter. According to IU Khan, Kulkarni was in the habit of directly approaching the superior police officers and he would refer to them by that expression. In support of the plea in his reply affidavit (paragraph 12) IU Khan stated as follows: Even during the course of his deposition in court Mr. S. Kulkarni had used the expression Bade Sahab while referring to the higher police officers. The Ld. trial court also translated the same in English while recording the statement as higher police officers . In the cross-examination Mr. S. Kulkarni has stated I had voluntarily gone to the higher police officers of the police headquarter . The High Court rejected the aforesaid plea observing as follows; 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. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant for something in regard to which he was never given an opportunity to defend himself. From the notice issued by the High Court it was impossible to discern that the charge of criminal contempt would be eventually fastened on him for his failure to inform the court and the prosecution about the way Kulkarni's was being manipulated by the defence. Mr. Rao further submitted that the reason assigned by the Court to hold the appellant guilty was based purely on assumption. The appellant was given no opportunity to show that, as a matter of fact, after Kulkarni met him at the Patiala House on April 28, 2007 he had informed the concerned authorities that after being summoned by the court Kulkarni was back to his old tricks. He further submitted that the appellant, given the opportunity, could also show that the decision to not examine him as one of the prosecution witnesses was taken by the concerned authorities in consultation with him. We find substance in Mr. Rao's submission. 131. In our considered view, on the basis of materials on record the charge of criminal contempt cannot be held to be satisfactorily established against IU Khan. In our opinion he is entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm of their live interviews), we are in the position to say that since the contents of the sting recordings were admitted there was no need for the proof of integrity and correctness of the electronic materials. But at the time the High Court issued notices to the two appellants (and two others) the position was completely different. At that stage the issue of integrity, authenticity and reliability of the sting recordings was wide open. The appellants might have taken the stand that not only the sting recordings but their respective responses shown by the TV channel were fake and doctored. In such an event the TV channel would have been required to be subjected to the strictest proof of the electronic materials on which its programmes were based and, in case it failed to establish their genuineness and correctness, it would have been equally guilty, if not more, of serious contempt of court and other criminal offences. By all reckoning, at the time of initiation of the proceeding, the place of NDTV was along with the appellants facing the charge of contempt. Such a course would have put the proceeding on a more even keel and given it a more balanced appearance. Then perhaps there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Article 215 of the Constitution or its inherent powers. Mr. Rao submitted that a person who is a law graduate becomes entitled to practise the profession of law on the basis of his enrolment with any of the State Bar Councils established under the Advocates Act, 1961. Appearance in Court is the dominant, if not the sole content of a lawyer's practice. Since, the authority to grant licence to a law graduate to practise as an advocate vests exclusively in a State Bar Council, the power to revoke the licence or to suspend it for a specified term also vests in the same body. Further, the revocation or suspension of licence of an advocate has not only civil but also penal consequences; hence, the relevant statutory provisions in regard to imposition of punishment must be strictly followed. Punishment by way of suspension of the licence of an advocate can only be imposed by the Bar Council, the competent statutory body, after the charge is established against the advocate concerned in the manner prescribed by the Act and the Rules framed thereunder. The High Court can, of course, prohibit an advocate convicted of contempt from appearing before it or any court subordinate to it t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orated in the Contempt of Courts Act, 1971 insofar as the High Courts are concerned and therefore to the extent the Contempt of Courts Act, 1971 identifies the nature or types of punishments which can be awarded in the case of established contempt, it does not impinge upon the inherent powers of the High Court under Article 215 either. No new type of punishment can be created or assumed. In paragraphs 39 40 it observed: 39. Suspending the licence to practise of any professional like a lawyer, doctor, chartered accountant etc. when such a professional is found guilty of committing contempt of court, for any specified period, is not recognised or accepted punishment which a court of record either under the common law or under the statutory law can impose on a contemnor in addition to any of the other recognised punishments. 40. The suspension of an advocate from practise and his removal from the State roll of advocates are both punishments specifically provided for under the Advocates Act, 1961, for proven professional misconduct of an advocate. While exercising its contempt jurisdiction under Article 129, the only cause or matter before this Court is regarding commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in courts till he purged himself of contempt. Kerala High Court has framed Rules under section 34 of the Advocates Act and rule 11 reads thus: No advocate who has been found guilty of contempt of court shall be permitted to appear, act or plead in any court unless he has purged himself of the contempt. 140. An Advocate, notwithstanding his conviction for contempt of Court by the Kerala High Court continued to freely appear before the courts. A complaint was made to the Kerala State Bar Council on which a disciplinary proceeding was initiated against the advocate concerned and finally the State Bar Council imposed a punishment on him debarring him from acting or pleading in any court till he got himself purged of the contempt of court by an order of the appropriate court. The concerned advocate challenged the order of the State Bar Council in appeal before the Bar Council of India. The Bar Council of India allowed the appeal and set aside the interdict imposed on the advocate. The matter was brought in appeal before this Court and a two judges' Bench hearing the appeal framed the question arising for consideration as follows: When an advocate was punished for contem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he delinquent advocate would continue to be under the spell of the interdict contained in Rule 11 of the Rules. 141. More importantly, another Constitution Bench of this Court in Ex. Capt. Harish Uppal vs. Union of India and Another, (2003) 2 SCC 45, examined the question whether lawyers have a right to strike and/or give a call for boycott of Court(s). In paragraph 34 of the decision the Court made highly illuminating observations in regard to lawyers' right to appear before the Court and sounded the note of caution for the lawyers. Para 34 of the decision need to be reproduced below: 34. One last thing which must be mentioned is that the right of appearance in courts is still within the control and jurisdiction of courts. Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in court can only be within the domain of courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an advocate) can practise in the Supreme Court and/or in the High Court and courts sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for dispensation of justice according to law is operated by the court. Proceedings inside the courts are always expected to be held in dignified and orderly manner. The very sight of an advocate, who is guilty of contempt of court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the court and even corrode its majesty besides impairing the confidence of the public in the efficacy of the institution of the courts. The power to frame such rules should not be confused with the right to practice law. While the Bar council can exercise control over the latter, the courts are in control of the former. The distinction is clearly brought out by the difference in language in Section 49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and Section 34(1) of the Advocates Act on the other. Section 49 merely empower the Bar Council to frame rules laying down conditions subject to which an advocate shall have a right to practise i.e. do all the other acts set out above. However, Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating this practice and procedure of the court includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary for the self protection of the court and for preservation of the purity of court proceedings. Let us, for example, take the case where an advocate is shown to have accepted money in the name of a judge or on the pretext of influencing him; or where an advocate is found tampering with the court's record; or where an advocate is found actively taking part in faking court orders (fake bail orders are not unknown in several High Courts!); or where an advocate has made it into a practice to browbeat and abuse judges and on that basis has earned the reputation to get a case transferred from an `inconvenient' court; or where an advocate is found to be in the habit of sending unfounded and unsubstantiated allegation petitions against judicial officers and judges to the superior courts. Unfortunately these examples are not from imagination. These things are happening more frequently than we care to acknowledge. We may also add that these illustrations are not exhaustive but there may be other ways in which a malefactor's conduct and actions may pose a real and imminent threat to the purity of court proceedings, cardinal to any court's functioning, apart from constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found guilty he might be debarred from appearing in courts for a specific period. The warning may be given in the initial notice of contempt issued under section 14 or section 17 (as the case may be) of the Contempt of Courts Act. Or such a notice may be given after the proceedee is held guilty of criminal contempt before dealing with the question of punishment. 147. In order to avoid any such controversies in future all the High Courts that have so far not framed rules under section 34 of the Advocates Act are directed to frame the rules without any further delay. It is earnestly hoped that all the High Courts shall frame the rules within four months from today. The High Courts may also consider framing rules for having Advocates on Record on the pattern of the Supreme Court of India. Suborning a witness in a criminal trial is an act striking at the root of the judicial proceeding and it surely deserves the treatment meted out to the appellant. But the appellants were not given any notice by the High Court that if found guilty they might be prohibited from appearing in the High Court, and the courts subordinate to it, for a certain period. To that extent the direction given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Khan referred to RK Anand. Now, this is exactly what IU Khan said in his interview to the TV channel and what he would say later in his show cause to the High Court. He also said that as agreed between the two in the meeting of April 28, 2007, he again met IU Khan in the evening but the conversation that took place in that meeting exposed NDTV story and, therefore, that recording was withheld from being telecast. 151. Similarly, in regard to his meeting with RK Anand, Kulkarni said that he met him on being forced by Poonam Agarwal. He further said on affidavit that he had mentioned the sum of rupees two and half crores to RK Anand on the direction of Poonam Agarwal. He himself had neither any idea nor the intention to ask him for any money. He further said that on the mention of the sum of money RK Anand was shocked and he rebuked him by making the sarcastic remark that he should ask for five crores and not only two and half crores. He said that he got the message that no demand for money would be entertained. The similarity between what Kulkarni said in his affidavit and what RK Anand had to say about this matter and the manner in which he would say it is unmistakable. We are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... REQUEST FOR RECUSAL: 156. Of all the obstructive measures adopted before the High Court the most unfortunate and undesirable came from RK Anand in the form of a petition `requesting' Manmohan Sarin J., the presiding judge on the bench dealing with the matter, to recuse him from the proceeding. This petition, an ill concealed attempt at intimidation, was, as a matter of fact, RK Anand's first response to the notice issued to him by the Court. He stated in this petition that he had the feeling that he was not likely to get justice at the hands of Manmohan Sarin J. He further stated alluding to some past events, that he had tried his best to forget the past and bury the hatchet but the way and the manner in which the matter was being dealt with had caused the greatest damage to his reputation. He made the prayer that the recusal application should be heard in camera and the main matter be transferred to another bench of which Sarin J. was not a member. Along with the petition he filed a sealed cover containing a note and the materials giving rise to the belief that he was not likely to get justice at the hands of Sarin J. 157. The recusal petition was primarily based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds on which recusal was asked for appear fit to be rejected out of hands. But the court gave the matter far greater importance than it merited, apparently because it saw a personal angle in it. The petition was heard for three days before it was rejected by the order dated October 4, 2007. It is a long order running into twenty seven pages authored by Sarin J. The order dealt with all the grounds advanced in support of the recusal petition and effectively showed that there was no truth or substance in any of those grounds. In regard to the 1988 resolution of the Bar Association allegedly passed against RK Anand at the instance of Mr. Sarin the Court called for the Association's Register of Resolutions for the years 1988 and 1989. From the Association's Register it transpired that at the relevant time Mr. Sarin was not an office bearer of the Association but was simply a member of its Executive Committee. Further, there was no resolution concerning RK Anand. A resolution of the nature stated in the recusal application was passed against someone from the Judicial Service. It is true that one Mr. Tufail, the Joint Secretary of the Association had wished to move a res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. We have come across instances where one would simply throw a stone on a judge (who is quite defenceless in such matters!) and later on cite the gratuitous attack as a ground to ask the judge to recuse himself from hearing a case in which he would be appearing. Such conduct is bound to cause deep hurt to the judge concerned but what is far greater importance is that it defies the very fundamentals of administration of justice. A motivated application for recusal, therefore, needs to be dealt with sternly and should be viewed ordinarily as interference in the due course of justice leading to penal consequences. 160. The other Judge on the bench, however, it seems was unable to bear the onslaught and he took the easy way out. He expressed his inability to concur with the order passed by presiding judge observing that the nature of the controversy before us pertains to my learned brother alone. It revolves around a number of factual assertions, which can only be known to my learned brother personally, and which must necessarily be examined in the light of the law on the subject. Therefore, I consider it inappropriate to express any opinion in the matter, one way or the other. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recusal application but before taking up the issue he fairly tried to give another opportunity to the appellant stating that perhaps even now the appellant might wish to withdraw the grounds in the SLP challenging the order passed by the High Court on the recusal application. The appellant was given ample time to consider the suggestion but later on enquiry Mr. Altaf Ahmed stated that he had not pressed those grounds in course of his submissions exercising his discretion as the Counsel but he had no instructions to get those grounds deleted from the SLP. 165. The action of the appellant in trying to suborn the court witness in a criminal trial was reprehensible enough but his conduct before the High Court aggravates the matter manifold. He does not show any remorse for his gross misdemeanour and instead tries to take on the High Court by defying its authority. We are in agreement with Mr. Salve and Mr. Subramanium that punishment given to him by the High Court was wholly inadequate and incommensurate to the seriousness of his actions and conduct. We, accordingly, propose to issue a notice to him for enhancement of punishment. We also hold that by his actions and conduct the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt to inquire into and satisfy itself whether the sting operation was a genuine exercise by the TV channel to expose the attempted subversion of the trial. He further submitted that the affidavit of Poonam Agarwal was not sufficient to arrive at the conclusion that the action of the TV channel was genuine and bona fide and the matter required further enquiry. Mr. Subramanium further submitted that the act of publication/telecast and the contents of publication/telecast, though interlinked, were still needed to be viewed separately and whether or not a publication or telecast was justified would, to a large extent, depend, as much on the contents of the publication/telecast, as the act of publication/telecast itself. He further submitted that, in the facts of the case, the sting operation was in public interest and there was nothing objectionable there. But the same cannot be said of the telecast. The date on which the programme was telecast (May 30, 2007- when Kulkarni's cross- examination was still pending), the slant given to the episode by the NDTV presenters, and the way opinions were solicited from eminent lawyers, left much to be explained by the TV channel. Learned Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a of `larger public good' was not a legal defence. In support of his submission he cited several decisions of this court in (i) Saibal Kumar Gupta and Others vs. B.K.Sen and Another., 1961 3 SCR 460 (473) (ii) In Re: P.C.Sen, 1969 2 SCR 649 (651,653,654,658) (iii) Reliance Petrochemcials Ltd. vs. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd., (1988) 4 SCC 592 pr. 32,34,95,38 (iv) M. P. Lohia vs. State of W. B., (2005) 2 SCC 686 pr. 10. 170. Mr. Salve learned Senior Advocate appearing for NDTV, on the other hand, defended the telecast of the programme. Mr. Salve submitted that commenting on or exposing something foul concerning proceedings pending in courts would not constitute contempt if the court is satisfied that the report/comment is substantially accurate, it is bona fide and it is in public interest. He referred to the new section 13 in the Contempt of Courts Act substituted with effect from March 17, 2006 which is as under: 13. Notwithstanding anything contained in any law for the time being in force,- (a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd media too would certainly not relish the role of being the snoopers for the court. Moreover, to insist that a report concerning a pending trial may be published or a sting operation concerning a trial may be done only subject to the prior consent and permission of the court would tantamount to pre- censorship of reporting of court proceedings. And this would be plainly an infraction of the media's right of freedom of speech and expression guaranteed under Article 19(1) of the Constitution. This is, however, not to say that media is free to publish any kind of report concerning a sub-judice matter or to do a sting on some matter concerning a pending trial in any manner they please. The legal parameter within which a report or comment on a sub-judice matter can be made is well defined and any action in breach of the legal bounds would invite consequences. Compared to normal reporting, a sting operation is an incalculably more risky and dangerous thing to do. A sting is based on deception and, therefore, it would attract the legal restrictions with far greater stringency and any infraction would invite more severe punishment. Sting programme whether trial by media?? 174 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... programme telecast by NDTV cannot be described as a piece of trial by media. Stings telecast of sting programmes not constituting criminal contempt: 176. Coming now to section 3 of the Contempt of Courts Act we are unable to appreciate Mr. Rao's submission that NDTV did not have the immunity under sub-section (3) of section 3 as the telecast was hit by proviso (ii) Explanation (B) to that sub section. Section 3 of the Act insofar as relevant is as under: 3. Innocent publication and distribution of matter not contempt.- (1) A person shall not be guilty of contempt of court on the ground that he has published (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at that time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending. (2) xxx (3) A person shall not be guilty of contempt of court on the ground that he has distributed a publication containing any such matter as is mentioned in sub-section (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and telecast it at a time when it fully knew that the BMW trial was going on. Hence, if the programme is held to be a matter which interfered or tended to interfere with, or obstructed or tended to obstruct the due course of the BMW case then the immunity under sub- section (1) will not be available to it and the telecast would clearly constitute criminal contempt within the meaning of section 2 (c) (ii) (iii) of the Act. But can the programme be accused of interfering or tending to interfere with, or obstructing or tending to obstruct the due course of the BMW case. Whichever way we look at the programme we are not able to come to that conclusion. The programme may have any other faults or weaknesses but it certainly did not interfere with or obstruct the due course of the BMW trial. The programme telecast by NDTV showed to the people (the courts not excluded) that a conspiracy was afoot to undermine the BMW trial. What was shown was proved to be substantially true and accurate. The programme was thus clearly intended to prevent the attempt to interfere with or obstruct the due course of the BMW trial. STINGS TELECAST OF STING PROGRAMMES SERVED IMPORTANT PUBLIC CAUSE 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st after some brief introductory remarks, clips from the sting recordings are shown for several minutes and a commentator from the background (probably Poonam Agarwal) introduces the main characters in the BMW case. Kulkarni is introduced by the commentator in the following words: Sunil Kulkarni, a passerby, who allegedly saw the accident but inexplicably dropped as witness by prosecution. They claim he had been bought by the Nandas. This despite the fact that he is the only witness who still says the accident was caused by a `black car' with two men in it one of them called Sanjeev. 184. [This statement does not find place in the manuscript of the telecast furnished to the court and can be found only by carefully watching the CD of the telecast submitted before the court. We are again left with the feeling that NDTV did not submit full and complete materials before the court and we are surprised that the High Court did not find it amiss] 185. In the first statement Kulkarni is twice described as the only witness in the BMW case who after eight years had not turned hostile. The statement is fallacious and misleading. Kulkarni was not being examined in the court as pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/her attention, but truth, for the moment at least was relegated to the sidelines. It is indeed true that later on in the programme facts concerning Kulkarni were stated correctly and he was presented in a more balanced way and Mr. Subramanium wanted to give NDTV credit points for that. But the impact and value of the opening remarks in a TV programme is quite different from what comes later on. The later corrections were for the sake of the record while the introductory remarks had their own value. 187. Further, on the basis of the sting recordings NDTV might have justifiably said that IU Khan, the Special Prosecutor appeared to be colluding with the defence (though this court found that there was no conclusive evidence to come to such a finding). But there was no material before NDTV to make such allegation against the prosecution as a whole and thus to run down the other agencies and people connected with the prosecution. There are other instances also of wrong and inappropriate choice of words and expressions but we need not go any further in the matter. 188. Another sad feature is its stridency. It is understandable that the programme should have started on a highly sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace while RK Anand was actually being subjected to the sting). It thus appears that at that time, for some reason, the smell of sting was in the air. In those circumstances we find it strange that in the affidavits filed on behalf of NDTV there should be absolutely no reference to Vikas Arora's complaint. In the earlier part of the judgment we have examined the affidavits filed by Poonam Agarwal and found that she states about all the aspects of the sting operations in great detail. But surprisingly those affidavits do not even refer to, much less deal with the complaint of Vikas Arora despite the striking similarity between the threat that was allegedly given to him and his senior IU Khan and the way the sting operation was actually carried out on IU Khan. 190. There is another loose end in the whole matter. Kulkarni's sting meeting with IU Khan had ended with fixing up another meeting for the following Sunday at the latter's residence. (It was the setting up of this meeting that is primarily the basis for holding him guilty of misconduct as the Special Public Prosecutor). One should have thought that this meeting would surely take place because it provided a far be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation undertaken by NDTV to uncover the Shimla connection between Kulkarni and RK Anand. 195. We have recounted above the acts of omission and commission by NDTV before the High Court and in the telecast of the sting programme in the hope that the observations will help NDTV and other TV channels in their future operations and programmes. We are conscious that the privately run TV channels in this country are very young, no more than eighteen or twenty years old. We also find that like almost every other sphere of human activity in the country the electronic news media has a very broad spectrum ranging from very good to unspeakably bad. 196. The better news channels in the country (NDTV being one of them) are second to none in the world in matters of coverage of news, impartiality and objectivity in reporting, reach to the audience and capacity to influence public opinion and are actually better than many foreign TV channels. But that is not to say that they are totally free from biases and prejudices or they do not commit mistakes or gaffes or they some times do not tend to trivialise highly serious issues or that there is nothing wanting in their social content and ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thusiastic journalist invited him to a drink of Dom Perignon, vastly superior and far more expensive than his usual `plonk', `Chbteau Fleet Street', he joined him with alacrity but when in the course of the drink the journalist offered him a large sum of money for giving him a story on the case; `why he was defending the most hated woman in England', Rumpole ended the meeting simply saying In the circumstance I think it is best if I pay for the Dom Perignon 200. We express our concern on the falling professional norms among the lawyers with considerable pain because we strongly feel that unless the trend is immediately arrested and reversed, it will have very deleterious consequences for administration of justice in the country. No judicial system in a democratic society can work satisfactorily unless it is supported by a bar that enjoys the unqualified trust and confidence of the people, that share the aspirations, hopes and the ideals of the people and whose members are monetarily accessible and affordable to the people. 201. We are glad to note that Mr. Gopal Subramanium, the amicus fully shared our concern and realised the gravity of the issue. In course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness for the prosecution appeared before the court and overriding the prosecution's protest, was allowed to depose only to resile from his earlier statement. All this and several other similar developments calculated to derail the trial would not have escaped the notice of the Chief Justice or the judges of the Court. But there is nothing to show that the High Court, as an institution, as a body took any step to thwart the nefarious activities aimed at undermining the trial and to ensure that it proceeded on the proper course. As a result, everyone seemed to feel free to try to subvert the trial in any way they pleased. 205. We must add here that this indifferent and passive attitude is not confined to the BMW trial or to the Delhi High Court alone. It is shared in greater or lesser degrees by many other High Courts. From experience in Bihar, the author of these lines can say that every now and then one would come across reports of investigation deliberately botched up or of the trial being hijacked by some powerful and influential accused, either by buying over or intimidating witnesses or by creating insurmountable impediments for the trial court and not allowing the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ample powers for all this both on the judicial and administrative sides. Article 227 of the Constitution of India that gives the High Court the authority of superintendence over the subordinate courts has great dynamism and now is the time to add to it another dimension for monitoring and protection of criminal trials. Similarly Article 235 of the Constitution that vests the High Court with the power of control over sub-ordinate courts should also include a positive element. It should not be confined only to posting, transfer and promotion of the officers of the subordinate judiciary. The power of control should also be exercised to protect them from external interference that may sometime appear overpowering to them and to support them to discharge their duties fearlessly. 206. In light of the discussions made above we pass the following orders and directions. 1. The appeal filed by IU Khan is allowed and his conviction for criminal contempt is set aside. The period of four month's prohibition from appearing in Delhi High Court and the courts sub-ordinate to it is already over. The punishment of fine given to him by the High Court is set aside. The Full Court of the Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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