Revati Mohite Dere, J.

1. Heard learned counsel for the parties.

2. Rule. Respondents waive notice through their respective counsel.

3. Rule is made returnable forthwith, with the consent of the parties and is taken up for final disposal.

4. By these petitions, the petitioners have impugned the order dated 29th November, 2017 passed by the learned Additional Sessions Judge, City Civil and Sessions Court, Greater Mumbai, below Exhibit 1502 in Sessions Case Nos. 177 of 2013, 178 of 2014, 577 of 2013 and 312 of 2014, by which, the learned Sessions Judge banned the print, electronic and social media from publishing/posting and/or reporting the court proceedings, until further orders.

5. The short question that arises for consideration in both the aforesaid petitions essentially is, whether the learned Judge had the power to pass the impugned order i.e. to ban the media from publishing and reporting the court proceedings, in the absence of any provision under the Code of Criminal Procedure (hereinafter referred to as 'the Code').

6. Mr. Ponda and Mr. Chandrachud, learned counsel for the petitioners appearing in Writ Petition No. 5434 of 2017 submitted that the learned Judge had no power under the Code, to gag the media/Press and as such, the impugned order dated 29th November, 2017 was clearly illegal and unsustainable in law. They submitted that the powers, if any, to pass postponement orders vests only with the High Courts and the Supreme Court and that the subordinate criminal courts have no such inherent powers to pass such orders. Learned counsel relied on the Judgments of the Apex Court in the case of Sahara India Real Estate Corp. Ltd. v. SEBI & Ors., (2012) 10 SCC 603 and in the case of Naresh Mirajkar & Ors. v. State of Maharashtra & Anr. (1966) 3 SCR 744 in support of their submission. They submitted that by the impugned order, the learned Judge has taken away the fundamental right of the Press to report the court proceedings. Mr. Ponda further submitted that Section 327(2) of the Code and Section 2 of Order XXXIIA of the Code of Civil Procedure, contemplate for in-camera proceedings; that under Sections 133, 142, 143, 145, 146 and 147 of the Code, Courts even have injunctory powers; that there are also provisions in some Special Statutes which ban the media from reporting e.g. Section 16 of Terrorist and Disruptive Activities (Prevention) Act ('TADA'); Section 17 of the National Investigation Act ('NIA'); Section 30 of the Prevention of Terrorism Act ('POTA'); Section 18 of the Maharashtra Control of Organised Crime Act ('MCOCA'); etc. According to the learned counsel, the trial in question is an 'open trial', and therefore, the learned Judge, in the absence of any provision, had no power to ban the media/Press from reporting.

7. Mr. Mihir Desai, learned senior counsel appearing for the petitioners in Writ Petition No. 132 of 2018, also submitted that the learned Judge had no power/jurisdiction to pass the impugned order, and that the said order was also in contravention of the provision of Section 327 of the Code. He submitted that there are only 3 or 4 contingencies in which a Court i.e. the High Court and the Supreme Court can restrain the media from publication and that too, for a short duration, i.e. when there is a real and imminent danger to a fair trial; that there is real and substantial risk of prejudice to the administration of justice or to the fairness of trial; and where reporting by the Press would shift the burden of innocence.

8. He further submitted that the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution, includes freedom of the Press and that the same has been recognized as a fundamental right. Learned counsel has tendered a compilation of the following judgments, Brij Bhushan v. State of Delhi, (1950) SCR 605; Sakal Papers (P) Ltd. v. Union of India, 1962 (