2009 Supreme(SC) 1329

Supreme Court of India
THE HONOURABLE MR. JUSTICE B.N. AGRAWAL, THE HONOURABLE MR. JUSTICE G.S. SINGHVI & THE HONOURABLE MR. JUSTICE AFTAB ALAM
R.K. Anand & Another
Versus
Registrar, Delhi High Court
CRIMINAL APPEAL NO. 1393 OF 2008 WITH CRIMINAL APPEAL NO. 1451 OF 2008
Decided On : 29-07-2009

IMPORTANT POINTS
Attempt to suborn a witness particularly by Senior Advocate is a particularly vile way of interfering with due course of a judicial proceeding.
Contempt proceedings are sui generis.
Conduct of a lawyer in general and a prosecutor in particular freely discussing the case with the witness, looking forward to meeting him at his residence over Scotch whisky is inappropriate.
Power vested in High Court u/s 34, Advicates Act, 1961 would not cease merely because it has not framed any rules.
Leniency in the matter of sentence in case of proved contempt of court would be misplaced.
Motivated application for recusal tantamounts to interference in due course of justice, Needs to be dealt with sternly and should lead to penal consequences.
NDTV programme intending to prevent attempt to interfere with or obstruct the due course of the BMW trial, entitled to immunity u/s 3(3).
Its time to arrest decline of ethical and professional standards among lawyers.

Headnote:(a) Contempt of Courts Act, 1971 – Section 2(c)(ii) & (iii) r/w Article 215, Constitution of India – Contemnors charged with suborning a witness in a criminal trial – Contemnors not tendering apology but denying charges on ground of their statements/conversations being distorted, media telecasting programme relating to matter sub-judice, etc. – Contentions rightly rejected by High Court. (Para 52)

       (b) Contempt of Courts Act, 1971 – Section 2(c)(ii) & (iii) r/w Article 215, Constitution of India – Sting operation by NDTV – Contemnors trying to suborn witness – Conversations recorded on microchips and copied on CDs – CDs supplied to contemnors and proceedees – Contemnors praying for forensic examination of microchips and CDs for tampering – Also seeking cross-examination of NDTV official handling the sting operation – Court examining original and copied materials with the proceedees – Finding them genuine and un-tampered – Cross-examination of NDTV official would not change the recorded material even slightly – High Court rightly rejecting contentions of the contemnors and convicting them. (Para 56, 57)

       (c) Contempt of Courts Act, 1971 – Section 12 – Senior Advocate trying to suborn a witness – A particularly vile way of interfering with due course of a judicial proceeding – Standard of proof – Offence of contempt required to be proved as in any criminal trial – Instantly basis of contempt proceedings sting operation by media channel – If the electronic recordings are true and faithful, no other evidence will be required for conviction. (Para 67, 68)

       (2001) 3 SCC 739; (2001) 7 SCC 530; ALL ER 1063H and 1064B; (2002) 4 SCC 21; (2003) 1 SCC 644; (2001) 6 SCC 735; (1976) 1 SCC 975 – Referred

       (d) Contempt of Courts Act, 1971 – Section 12 – Contempt proceedings – Standard of proof and manner of proof in contempt proceeding and criminal proceeding – Rigour of standard remaining same, manner may differ – Contempt proceedings are sui generis – Rues of Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872 do not apply – However, principles of natural justice apply with more vigour – Contemnor should not be prejudiced – The proceedings must be fair, reasonable and objective – Instantly sitng recordings found truthful and intact – Their authenticity and integrity not controverted – Contemnor given full opportunity – No infirmity in conviction. (Para 82, 95)

       (1970) 2 SCC 340; (1973) 1 SCC 471; (1982) 2 SCC 258; (1985) Suppl SCC 611; 1971 (1) All ER 678; 92 N C App. 246 – Referred

       (e) Contempt proceedings – Sting operation – Counsel for contemnor doubting authenticity and integrity of sting recordings – Contemnor himself never doubting the authenticity and integrity of sting recordings – Even in live conversation with the media during telecast contemnor not disputing authenticity and integrity of the same – No question of proof of authenticity and integrity of the recordings. (Para 83, 95)

       (f) Administration of Justice – Professional misconduct – Public prosecutor interacting with prosecution witness – Neglecting professional restraint – Freely discussing the case with the witness – Looking forward to meeting him at his residence, offering him Scotch whisky – Conduct inappropriate for a lawyer in general and a prosecutor in particular. (Para 117)

       (g) Contempt of Courts Act, 1971 – Section 12 r/w Article 215, Constitution of India – Expression ‘Bade sahab’ – High Court inferring that IU Khan meant R.K.Anand – No material on record for such inference – Further, Khan not given oppotuinity to show that he informed the concerned authorities about manipulation of the witness and his tricky behaviour – Khan entitled to benefit of doubt. (Para 130, 131)

       (h) Contempt proceeding – Procedure – High Court leaving the microchips and original CD recordings in safe custody of NDTV – Propriety – Once copy of the materials was submitted to the High Court, there was no possibility of their being tampered – Moreover the well equipped TV channel studios were better place for custody and presevation than the High Court registry – No lapse. (Para 133)

       (i) Contempt of Courts Act, 1971 – Section 12 – At the time of issuing notice, authenticity and integrity of sting recording was wide open – High Court ought to have arrayed the TV channel as one of the contemnor – That would have ensured at least more careful apprpoach of the channel. (Para 134)

       (j) Advocates Act, 1961 – Section 34 – High Court conferred authority to frame rules laying down conditions precedent for an advocate to practice in the High Court and the courts subordinate to it – Such rules may provide for debarring an advocate convicted of contempt of court from appearing before it or before the subordinate courts for a specified period – No rules yet framed by Delhi High Court – Power vested in High Court would not cease merely because it has not framed any rules – Prohibiting an advocate from apopearing in courts – Not affecting his legal practice in other ways – Not punishment for professional misconduct – However the proceedee must be given notice of the possible prohibition in the initial show cause or at least before dealing with the question of punishment – No such notice given instantly – Punishment not sustainable – High Courts directed to frame rules u/s 34, Advicates Act, 1961. (Para 136, 137, 143, 146, 147)

       (2001) 8 SCC 650; (2003) 2 SCC 45 – Relied upon

       (1998) 4 SSC 409; (2004) 6 SCC 311 – Referred

       (k) Contempt of Courts Act, 1971 – Section 12 – Contemnor taking a defiant stand and constantly trying to obstruct proceedings – Not tendering apology – High Court prohibiting him from appearing before it or any court subordinate to it for four months – High Court taking a lienient view – Leniency misplaced. (Para 148)

       (l) Constitution of India – Article 219 – Duty of a Judge – Recusal application – In fact an attempt to intimidate the court – Succumbing to such pressure would tantamount to not fulfilling the oath of office taken by the Judge under Article 219 – Such motivated application for recusal – Interference in due course of justice – Needs to be dealt with sternly – Should lead to penal consequences. (Para 158, 159)

       (m) Sting operation – Matter sub judice – Ongoing trial – Suggestion that NDTV should have taken permission from the court before the operation or submitted the materials to court before telecast – Rejected – Would be infraction of media’s right of freedom of expression under Article 19(1) of the Constitution – Making media into some sort of special vigilance agency for the court – Making the media snoopers for the court – Parameters are already in place for reporting court proceedings, violation of which attracts consequences. (Para 174)

       (1961) 3 SCR 460; (1969) 2 SCR 649; (1988) 4 SCC 592; (2005) 2 SCC 686; [1989] 2 All ER 1100 – Referred

       (n) Sting operation – Whether media trial – Defined as the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of his guilt regardless of any verdict in a court of law – Instantly the sting operation not relating to the accused in BMW case – It concerned two advocates on opposite sides and a witness – While allegations against RK Anand held established by the court, actions of IU Khan also held inappropriate for a Public Prosecutor – Sting operation and programme telecast on that basis, not media trial. (Para 175)

       (o) Contempt of Courts Act, 1971 – Section 3(3) – Immunity to media – Sting operation not interfering with or obstructing due course of BMW trial – Telecast by NDTV showing conspiracy to undermine the BMW trial – Telecast proved to be substantially true and accurate – Programme clearly intended to prevent attempt to interfere with or obstruct the due course of the BMW trial – Immunity available. (Para 176)

       (p) Administration of Justice – Concen at decline of ethical and professional standards among lawyers – It is time that the ternd is arrested lest it has very deleterious consequences for administration of justice in the country. (Para 200)

       1993 Supp (1) SCC 529; (1995) 3 SCC 619 – Referred

       Facts of the case:

       The present is a fall out from a criminal trial arising from a hit and run accident on a cold winter morning in Delhi in which a car travelling at reckless speed crashed through a police check post and crushed to death six people, 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.

       In this background 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 most valuable witness for the prosecution but afterwards, at an early stage in the trial, he was dropped by the prosecution as one of its witnesses. Nearly eight years later, the trial court had summoned him to appear and give his testimony as a court witness. The telecast came a few weeks after the court order and even as his evidence in the trial was going on.

       Shocked by the programme the Delhi High Court suo moto initiated a proceeding (Writ Petition (Criminal) No.796 of 2007). It called for from the news channel all the materials on which the telecast was based and after examining those materials issued show cause notices to RK Anand, IU Khan and Bhagwan Sharma, an associate advocate with RK Anand why they should not be convicted and punished for committing criminal contempt of court as defined under section 2 (c) of the Contempt of Courts Act.

       On considering their show cause and after hearing the parties the High Court expressed its displeasure over the role of Bhagwan Sharma but acquitted him of the charge of contempt of court.

       As regards RK Anand and IU Khan, however, the High Court found and held that their acts squarely fell within the definition of contempt under clauses (ii) & (iii) of section 2(c) of the Contempt of Courts Act. It, accordingly, held them guilty of committing contempt of Court vide judgment and order dated August 21, 2008 and in exercise of power under Article 215 of the Constitution of India prohibited them, by way of punishment, from appearing in the Delhi High Court and the courts subordinate to it for a period of four months from the date of the judgment. It, however, left them free to carry on their other professional work, e. g., `consultations, advises, conferences, opinion 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.

       Finding of the Court:

       The sting telecast by NDTV was indeed in larger public interest and it served an important public cause.

       Result:

       Appeal filed by IU Khan is allowed.

       Appeal of RK Anand is dismissed subject to the notice of enhancement of punishment issued to him.