R. K. Anand
Vs. Registrar, Delhi High Court  INSC 1323 (29 July 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1393
OF 2008 R.K. Anand ....Appellant Versus Registrar, Delhi High Court
CRIMINAL APPEAL NO. 1451 OF 2008 I.U. Khan ....Appellant Versus Registrar,
Delhi High Court ....Respondent
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.
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 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. According to NDTV, the programme was based on a clandestine
operation carried out by means of a concealed camera with Kulkarni acting as
the mole. What appeared in the telecast was outrageous and tended to confirm
the cynical but widely held belief that in this country the rich and the mighty
enjoyed some kind of corrupt and extra-constitutional immunity that put them
beyond the reach of the criminal justice system. 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.
sting operations there was another person called Lovely who was apparently sent
to meet Kulkarni as an emissary of RK Anand. But he died in a freak accident
even before the stage of issuance of notice in the proceeding before the High
Court). 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.
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.
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:
crime, the Police investigation & proceedings before the Trial court:
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 persons standing on the road some were thrown away but two or
three persons landed on the car's bonnet and rolled down to the ground under
however, did not stop. It moved on dragging along the persons who were caught
in its underside. It halted only after the driver lost control and going down a
distance of 200-300 feet hit the road divider. At this point the occupants came
down from the car to inspect the scene. They looked at the front and the rear
of the car and would not have failed to notice the persons caught under the car
who were still crying for help and who perhaps might have been saved if they
were taken out even at that stage. But the anxiety of the car's occupants to
leave the accident site without delay seemed to override all other
considerations. They got back into the car, reversed it and drove on. The car
went on dragging the unfortunate victims trapped under it to certain and
ghastly death and left behind at the accident site dismembered limbs and dead
bodies of men.
The police investigation brought to light that the accident was
caused by a black BMW car which was being driven by Sanjeev Nanda. He was
returning from a late night party, under the influence of liquor, along with
Five days after the accident, on January 15, 1999 one Sunil
Kulkarni contacted the Joint Commissioner of Police, Delhi, and claimed to be
an eye witness to the occurrence. According to his story, at the time of the
accident he was passing through the spot, on foot, on his way to the Nizamuddin
Railway Station for catching a train for Bhopal. He described the accident in
considerable detail and stated that at the sight of so many people being mowed
down by the car he got completely unnerved. He proceeded for the railway station
and on reaching their tried to ring up the police or the emergency number 100
but was unable to get through. He finally went to Bhopal and on coming back to
Delhi, being bitten by conscience, he contacted the police. What was of
significance in Kulkarni's statement is that the accident was caused by a car
and when it stopped after hitting the people a man alighted from the driving
seat and examined the front and rear of the car. Then, another person got down
from the passenger seat called the other, "Sanjeev", and urged that
they should go. On the same day his statement was recorded by the police 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 when Sanjeev Nanda was produced
in court Kulkarni also happened to be there. He identified him to the
investigating officer as the driver of the car causing accident.
Kulkarni's arrival on the scene as an eye witness of the tragic
accident got wide publicity and he was generally acclaimed as a champion of the
public cause. He must have appeared to the police too as godsend but soon there
were reasons for the police to look at him completely differently. He had given
as his address a place in Mumbai. A summons issued by the trial court on the
Mumbai address given by him returned unserved. The report dated August 30, 1999
on the summons disclosed that he had given a wrong address and his actual
address was not known to anyone. It also stated that he was a petty fraudster
who had defrauded several people in different ways. The report concluded by
saying that he seemed to be a person of shady character.
At the same time Kulkarni also turned around. On August 31, 1999 a
Habeas Corpus petition (Writ Petition (Crl) No.846/99) was filed in the Delhi
High Court making the allegation that he was being held by the Delhi Police in
wrongful confinement. On the following day (September 1, 1999) when the writ
petition was taken up the allegations were denied on behalf of the police.
Kulkarni was personally present in Court. The Court, therefore, dismissed the
writ petition without any directions. Next, Kulkarni filed a petition (through
a lawyer) before the trial court on September 13, 1999. In this petition, he
stated that on the date of occurrence, that is, January 10, 1999 itself he had
told the police that the accident was caused by a truck. But the police was
adamant not to change the version of the FIR that was already registered and on
the basis of which five persons were arrested. The police forced him to support
its story, and his earlier statements were made under police coercion.
On September 23, 1999 a clash took place between some policemen
and some members of the bar in the Patiala House court premises for the
`custody' of Kulkarni. A complaint about the alleged high handed actions of the
police was formally lodged before the court and a notice was issued to the Jt.
Commissioner. In response to the notice the Jt. Commissioner submitted a long
and detailed report to the court on September 27, 1999. In the report, apart
from defending 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
trying to play the two ends against the middle and he was completely
On September 30, the date fixed for his examination, Kulkarni was
duly present in court.
however, represented by his own lawyer and not by the prosecuting counsel. He
was quite eager to depose. But the prosecution no longer wanted to examine him.
IU Khan, the Special Prosecutor filed a petition stating that on the
instructions of the State he gave up Kulkarni as one of the prosecution witness
on the ground that he was won over by the accused. He also submitted before the
court the report of the Joint Commissioner dated September 27. The allegation
that he was won over was of course, denied both by Kulkarni and the accused.
The court, however, discharged him leaving the question open as to what
inference would it draw as a result of his non- examination by the prosecution.
Earlier to Kulkarni's exit from the case, the prosecution had lost
two other key witnesses.
with there were three crucial witnesses for the prosecution. One was Hari
Shankar Yadav, an attendant on a petrol pump near the site of the tragedy; the
other was one Manoj Malik who was the lone survivor among the victims of the
accident and the third of course was Kulkarni. Hari Shankar Yadav was examined
before the court on August 18, 1999 and he resiled from his earlier statement
made before the police. Manoj Malik was scheduled to be examined on August 30,
1999 but he seemed to have disappeared and the police was unable to trace him
out either in Delhi or at his home address in Orissa. On the date fixed in the
case, however, he appeared in court, not with the prosecution team but with two
other lawyers. He was examined as a witness notwithstanding the strong protest
by the prosecution who asked for an adjournment. Not surprisingly, he too
turned hostile. Lastly, Kulkarni too had to be dropped as one of the
prosecution witness in the circumstances as noted above.
The trial proceeded in this manner and over a period of the next
four years the prosecution examined around sixty witnesses on the forensic and
other circumstantial aspects of the case. The prosecution finally closed its
evidence on August 22, 2003. Thereafter, the accused were examined under
section 313 of CrPC and a list of defence witnesses was furnished on their
case was fixed for defence evidence two applications came to be filed before
the trial court, one was at the instance of the prosecution seeking a direction
to the accused Sanjeev Nanda to give his blood sample for analysis 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.
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 one Vikas Arora, Advocate, an assistant of IU Khan
sent a complaint in writing to the Chief Editor, NDTV with copies to the
Commissioner of Police and some other authorities. In the complaint it was
alleged that one Ms Poonam Agarwal, a reporter of the TV Channel was demanding
copies of statements of witnesses and the Police Case-diary of the BMW case and
was also seeking an interview with IU Khan or the complainant, his junior. On
their refusal to meet the demands she had threatened to expose them through
some unknown person and to let the people know that the police and the public
prosecutor had been influenced and bribed by the accused party. He requested
the authorities to take appropriate action against Poonam Agarwal.
On April 20, 2007 NDTV telecast a half hour special programme on
how the BMW case was floundering endlessly even after more than seven years of
the occurrence. Apparently, the telecast on April 20, 2007 brought Poonam
Agarwal and Kulkarni together. According to Poonam Agarwal, on April 22, 2007
she received a phone call from Kulkarni who said that he was deeply impressed
by the programme telecast by her channel and requested for a meeting with her.
(The version of Kulkarni is of course quite different). She met him on April 22
and 23. He told her that in the BMW case the prosecution was hand in glove with
the defence; he wanted to expose the nexus between the prosecution and the
defence and needed her help in that regard. Poonam Agarwal obtained the
approval of her superiors and the idea to carry out the sting operation using
Kulkarni as the decoy was thus conceived.
Even while the planning for the sting operation was going on, NDTV
on April 26 gave reply to the notice by Vikas Arora. In their reply it was
admitted that Poonam Agarwal had sought an interview with Arora's senior which
was denied for reasons best known to him. All other allegations in Arora's
notice were totally denied and it was loftily added that the people at NDTV
were conscious of their responsibilities and obligations and would make
continuous efforts to unravel the truth as a responsible news channel.
On April 28, 2007 Kulkarni along with one Deepak Verma of NDTV
went to meet IU Khan in the Patiala House court premises. For the mission
Poonam Agarwal `wired' Kulkarni, that is to say, she equipped him with a
concealed camera and a small 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
there to compact discs (CDs). The microchip in Kulkarni's camera used on April
28, 2007 was later reformatted for other uses. Thus, admittedly that part of
the conversation between Kulkarni and IU Khan that took place on April 28, 2007
outside the chamber is available only on CD and the microchip on which the
original recording was made is no longer available. The second operation was
carried out on May 6, 2007 when Kulkarni met RK Anand in the VIP lounge at the
domestic terminal of IGI Airport. The recording of the meeting was made on the
microchip of the concealed camera carried by Kulkarni.
On May 8, 2007 the third sting operation was carried out when
Kulkarni got into the back seat of RK Anand's car that was standing outside the
Delhi High Court premises. RK Anand was sitting on the back seat of the car from
before. The recording shows Kulkarni and RK Anand in conversation as they
travelled together in the car from Delhi High Court to South Extension.
In the evening of the same day the fourth and final sting
operation was carried out in South Extension Part II market where Kulkarni met
one Bhagwan Sharma, Advocate and another person called Lovely. Bhagwan Sharma
is one of the juniors working with RK Anand and Lovely appears to be his
handyman who was sent to negotiate with Kulkarni on behalf of RK Anand.
According to Poonam Agarwal, in all these operation she was only
at a little distance from the scene and was keeping Kulkarni, as far as
possible, within her sight.
According to NDTV, in all these operations a total of five
microchips were used. Four out of those five chips are available with them in
completely untouched and unaltered condition.
microchip that was used in the camera of Kulkarni on April 28, 2007, as noted
above, was reformatted after its contents were transferred onto a CD.
On May 13, 2007 NDTV recorded an interview by Kulkarni in its
studio in which Kulkarni is shown saying that after watching the NDTV programme
(on the BMW case) he got in touch with the people from the channel and told
them that the prosecution and the defence in the case were in league and he
knew how witnesses in the case were bought over by the accused and their
lawyers. He also told NDTV that he could expose them through a sting operation.
He further said that he carried out the sting operation with the help of NDTV.
He 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.
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 was heard in the High Court on several dates. In the
meanwhile Kulkarni was to appear before the trial court on May 14, 2007. Hence,
the High Court gave interim directions allowing Kulkarni to be examined by the
court but not to put him to any cross-examinations till the disposal of the
petition being argued before it. The petition was finally disposed of by a
detailed order dated May 29, 2007. The High Court set aside the trial court
order rejecting the defence petition for recall of certain prosecution
witnesses and asked the trial court to reconsider the matter. It also held that
the trial court's criticism of the police was unwarranted and accordingly,
expunged those passages from its order. However, insofar as summoning of
Kulkarni was concerned the High Court held that there was no infirmity in the
trial court order and left it undisturbed.
On May 14, 2007 Kulkarni appeared before the trial court but on
that date, despite much persuasion, the court was not able to get any statement
from him. From the beginning he asked for an adjournment on the plea that he
was not well. In the end the court adjourned the proceedings to May 17 with the
direction to provide him police protection. On May 17, the examination of
Kulkarni commenced and he described the accident more or less in the same way
as in his statements before the police and the magistrate. He said that the
accident was caused by a black car (and not by a truck) but added that the car
was coming from his front and its light was so strong that he could not see
much. He said about his identification of the car at the Lodhi Colony police station.
the question of identification of the driver there was a significant shift from
his earlier statements. He told the court that what he had heard was one of the
occupants urging the other to go calling him "Sanch or Sanz". He had
also heard another name `Sidh' being mentioned among the car's occupants. In
reply to the court's question he said that in his statement before the
magistrate under section 164 of CrPC he had stated the name `Sanjeev', and not
the nick names that he actually heard, under pressure from some police
officials. He said that he was also put under pressure not to take the name of
Sidharth Gupta and some police official told him that he was not in the car at
the time of the accident. He said that apart from the 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.
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
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 opportunity to move more
and more away from the prosecution case. He admitted that Sanjeev Nanda was one
of the occupants of the car but positively denied that he came out from the
driving seat of the offending car. He elaborated that the one to come out from
the driving seat of the car was a fat, hefty boy who was not present on that
date. (It does not take much imagination to see that he was trying to put
Sidharth Gupta on the driving seat of the car who had been discharged from the
case by the order of the Delhi High Court and was thus in no imminent danger
from his deposition!). He denied that he disowned or changed some portions from
his earlier statements under the influence of the accused persons. On May 29
Kulkarni's cross-examination by IU Khan was incomplete and it was deferred to
May 31. But before that NDTV telecast the sting programme that badly jolted not
only everyone connected with the BMW trial but the judicial system as well.
Based on the sting operations NDTV telecast a programme called
India 60 Minutes (BMW Special) on May 30, 2007 at 8.00 p.m. It was followed at
9.00 pm, normally reserved for news, as `BMW Special'. From a purely
journalistic point of view it was a brilliant programme designed to have the
greatest impact on the viewers. The programmes commenced with the anchors (Ms.
Sonia Singh in the first and Ms. Barkha Dutt in the second telecast) making
some crisp and hard hitting introductory remarks on the way the BMW case was
proceeding which, according to the two anchors, was typical of the country's
legal system. The introductory remarks were followed by some clips from the sting
recordings and comments by the anchors, interspersed with comments on what was
shown in the programme by a host of well known legal experts.
It is highly significant for our purpose that both the telecasts
also showed live interviews with RK Anand. According to the channel's reporter,
who was posted at RK Anand's residence with a mobile unit, he initially
declined to come on the camera or to make any comments on the programme saying
that he would speak only the following day in the court at the hearing of the
to the reporter, in course of the telecast Sanjeev Nanda also arrived at the
residence of RK Anand and joined him in his office. He too refused to make any
comments on the on-going telecast. 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.
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 before his testimony began in court
Kulkarni withdrew his consent for telecasting the programmes. Nevertheless,
after taking legal opinion on the matter NDTV was going ahead with the airing
of programme in larger public interest. Towards the end of the nine o'clock
programme the anchor had a live discussion with Poonam Agarwal in which she
elaborated upon the reason for withholding the telecast for about three weeks.
Concerning Kulkarni, Poonam Agarwal said that he was the main person behind the
stings and the sting operation was planned at his initiative. He had approached
her and said to her that he wished to bring out into the open the nexus between
the prosecution and the defence in the BMW case. He had also said to her that
in connection with the case he was under tremendous pressure from both sides.
But after the stings were complete he changed his stand and would not agree to
the telecast of the programme based on the stings. In the discussion between
the anchor and Poonam Agarwal it also came to light that initially NDTV had
seen Kulkarni as one of the victims of the system but later on he appeared in
highly dubious light. The anchor said that they had no means to know if he had
received any money from any side. Poonam Agarwal who had the occasion to
closely see him in course of the sting operations gave instances to say that he
appeared to her duplicitous, shifty and completely unreliable.
NDTV took the interview of RK Anand even as the first telecasts
were on and thus what he had to say on what was being shown on the TV was fully
integrated in the eight o'clock and nine o'clock programmes on May 30. IU Khan
was interviewed on the following morning when a reporter from the TV channel
met him at his residence with a mobile transmission unit. The interview was
live telecast from around eight to twenty three past eight on the morning of
was the only time his interview was telecast in full. In the programmes
telecast later on, one or two sentences from his interview were used by the
anchor to make her comments.
In his interview IU Khan basically maintained that from the
clandestine recording of his conversation with Kulkarni, pieces, were used out
of context and selectively for making the programme and what he spoke to
Kulkarni was deliberately misinterpreted to derive completely wrong inferences.
He further maintained 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.
On the same day IU Khan withdrew from the BMW case as Special
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.
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
The further cross-examination of Kulkarni was deferred to another
date on the request of the counsel replacing IU Khan as Special Public
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
telecasts of their BMW programme and to tender an unconditional apology to him
failing which he would take legal action against them inter alia for damages
amounting to rupees fifty crores. NDTV gave its reply to the legal notice on
July 20, 2007. No further action was taken by RK Anand in pursuance of the
COURT TAKES NOTICE:
On the same day (May 31, 2007) a Bench of the Delhi High Court
presided over by the Chief Justice took cognisance of the programme telecast by
NDTV the previous evening and felt compelled to examine all the facts. The
Court, accordingly, directed the Registrar General `to collect all materials
that may be available in respect of the telecast including copies of CDs/Video
and transcript and submit the same for consideration within 10 days'. The court
further directed NDTV `to preserve the original material including the
CDs/Video pertaining to the aforesaid sting operation.'
In response to the notice issued by the trial court, NDTV produced
before it on June 1, 2007 two microchips and a recorder with the third chip
inside it. The chips were said to contain the original recordings. In addition
to the chips and the recorder NDTV also produced 5 CDs that were copies of the
original, unedited recordings on the three chips. It was brought to the notice
of the trial court that the High Court had also issued notice to NDTV in the
same matter. The trial court, accordingly, stopped its inquiry and returned
everything back to NDTV for production before the High Court.
On June 2, 2007, Ms. Poonam Agarwal of NDTV submitted before the
High Court six CDs; one of the CDs (marked `1') was stated to be edited and the
remaining five (marked `2'-`6') unedited. In a written statement given on the
same day she declared that NDTV News Channel did not have any other material in
connection with the sting operation. She also stated that in accordance with
the direction of the Court, NDTV was preserving the original CDs/ Videos
relating to the sting operation. On June 6, 2007, Poonam Agarwal submitted true
transcripts of the CDs duly signed by her on each page. She also gave a written
statement on that date stating that the CDs submitted by her earlier were
duplicated from a tape-recording prepared from four spy camera chips which were
recorded on different occasions. (As we shall see later on, the total number of
microchips 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
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.
relevant circumstances'. In compliance with the Court's direction, Poonam
Agarwal filed an affidavit on July 23, 2007.
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 contacted her on telephone and
requested for a meeting saying that he had something important to tell her
about the case. She met him on April 22 and 23. In the second meeting he was
accompanied by his wife. He told her that there was a strong nexus between the
prosecution and the defence in that case and that he had suffered a lot due to
his involvement in the case. He was determined to expose the nexus. He said
that he needed the help of NDTV to do a sting operation in order to bring out
the complicity between the prosecution and the defence into open. She discussed
the plan mooted by Kulkarni with her superiors in the organisation and got
their permission to carry out the sting operation. In this regard she stated in
the affidavit that the people at NDTV were greatly concerned over the manner in
which a number of trials had ended up in acquittal on account of witnesses
turning hostile, especially in cases in which accused were influential people.
NDTV, as a news channel, was trying to uncover the causes behind this malaise
and it was in this spirit that the channel decided to help Kulkarni. She duly
told Kulkarni that NDTV was willing to help him in doing the sting operation.
Kulkarni informed her that he was going to meet IU Khan in his chamber to seek
his direction in connection with the court summons issued to him and that would
be good a opportunity for doing the sting. Accordingly, she along with one
Deepak Verma (a camera person from the TV channel) met Kulkarni outside the
Patiala House court premises. She fitted Kulkarni with a button camera and a
recording device and also gave her a cell phone to communicate with her in any
emergency. Then Kulkarni and Deepak Verma went to meet IU Khan. Deepak Verma
carried another concealed camera and a recording device in his bag. Deepak
Verma was sent along with Kulkarni to ensure that he did not in any manner
tamper with the hidden camera. Before sending them off she switched on
Kulkarni's camera. After meeting with IU Khan both came back and she then
switched off Kulkarni's camera. She stated in the affidavit that after copying
its contents onto a compact disc the microchip used in Kulkarni's camera was
formatted for other projects but the microchip in the camera in Deepak Verma's
bag was available undisturbed. Kulkarni next called to tell her that he was
meeting RK Anand at the IGI Airport (Domestic 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 the car in which
Kulkarni and RK Anand were travelling did not stop anywhere except at the red
lights on the crossings. She also averred that all along the way she followed
the car in her own vehicle and it always remained in her sight. On the same day
Kulkarni told her that he was scheduled to meet RK Anand in his office at South
Extension Part II. They together went to South Extension and from there
Kulkarni telephoned RK Anand. He told her that he was asked to wait there at a
particular spot where someone would come to meet him. After a short while
Bhagwan Sharma arrived there whom she knew from before as an advocate
associated with RK Anand. At that time they were in her vehicle. She `wired'
Kulkarni, like the earlier occasions, and he went to meet Bhagwan Sharma at the
fixed spot. For a little while she lost them from her sight. She then contacted
Kulkarni on his cell phone and he, feigning to be talking to his wife,
indicated to her the exact spot where he was at that moment. She approached
that spot and found that Bhagwan Sharma had gone away and Kulkarni was talking
with a Sikh person whom he later identified as `Lovely'.
moved around and talked for a pretty long time. In the end Lovely got into his
car and drove away. Kulkarni then called her on the cell phone to find out
where her vehicle was parked. He came back to her. She switched off the camera.
He narrated to her what transpired in the meetings with Bhagwan Sharma and
Lovely. She stated in the affidavit that the entire episode lasted for over an
hour and a half. All through she had Kulkarni in her sight except for the short
period as indicated above. She also stated that as the episode went on for a
long time the batteries of the hidden camera got exhausted and, therefore, the
recording of the meeting ended abruptly. Once all the material collected in
course of the sting operations came in possession of NDTV it was carefully
examined and evaluated and the editorial team at NDTV came to the view that in
the larger public interest it was their duty to put the whole matter in the
public domain. The decision was thus taken to telecast a special programme
under the caption `BMW expose'. The recordings made in the sting operations
were then very carefully edited for making a programme that could be telecast.
The process of editing took three days. The chips were copied onto CDs in her
presence and under her supervision.
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.
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 his stand was quite contradictory to
the objective avowed by him for carrying out the stings with the help of NDTV;
by that date his examination-in-chief was over and he was also provided with
police protection. Taking all those facts and circumstances into account it was
decided to go ahead with the telecast regardless of Kulkarni's objections. The
programme was, accordingly, telecast on May 30, 2007. In course of the telecast
the anchor of the show engaged with RK Anand and presented his version too
before the viewers. IU Khan was similarly tried to be contacted but he was
indisposed. In the end the affidavit gave a list of all the materials submitted
in the court along with it.
In Poonam Agarwal's affidavit NDTV took the stand that the stings
were conceived and executed by Kulkarni. Its own role was only that of the
facilitator. Kulkarni would choose the date and time and venue of the meetings
where he would like to do the sting. He would fix up the meetings not in
consultation with Poonam Agarwal but on his own. He would simply tell her about
the meetings and she would provide him with the wherewithal to do the sting.
She would not ask him when and how and for what purpose the meeting was fixed
even though it may take place at such strange places as the VIP lounge of the
airport or a car travelling from outside the Delhi High Court to South
Extension. She would not ask him even about any future meetings or his further
On July 25, 2007 when the matter next came up before the Court the
affidavit of Poonam Agarwal was already submitted before it. On that date the
counsel for NDTV took the Court through the transcripts of the sting recordings
and submitted that the three advocates and the other person Lovely, the
subjects of the sting, had prima facie interfered with the due administration
of criminal justice. The Court, however, deferred any further action in the
matter till it viewed for itself the original sting recordings. On that date it
appointed Mr. Arvind K. Nigam, Advocate as amicus curiae to assist the court in
On July 31, 2007, one Mr. Vinay Bhasin, Senior Advocate, tried to
intervene stating that the action of NDTV in telecasting a programme based on
sting operations in connection with a pending criminal trial itself amounted to
interference with the administration of criminal 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.
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:
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
judicial proceedings and administration of justice by the courts. Prima facie
your acts and conduct as aforesaid was intended to subvert the administration
of justice in the pending trial and in particular influence the outcome of the pending
in exercise of the powers under Article 215 of the Constitution of India, we do
hereby direct initiation of proceedings for contempt and issuance of notice to
you, Mr. RK Anand, Senior Advocate, Mr. IU Khan, Senior Advocate, Mr. Shri
Bhagwan, Advocate and Mr. Lovely to show cause as to why you should not be
proceeded and punished for contempt of court as defined under Section 2(c) of
the Contempt of Courts Act and under Article 215 of the Constitution of India.
are, therefore, required to file your reply showing cause, if any, against the
action as proposed within four weeks.
and contemnors shall be present in Court on the next date of hearing i.e. 24
"Registry is directed to supply under mentioned material to the noticees:-
"(i) Copy of the order dated 7th August, 2007;
Affidavit of Ms. Poonam Agarwal dated 23rd July, 2007 together with annexures
including the four copies of CDs filed along with the affidavit;
Copies of the corrected transcripts filed on 6th August, 2007 in terms of the
order dated 31st July, 2007;
Copies of 6 CDs, including one edited and five unedited containing the original
footage which were produced on 6th June, 2007.
shall make available to the Registry sufficient number of copies of the CDs.
and transcripts, which the Registry has to supply to the noticees as
In response to the notice RK Anand, instead of filing a show
cause, first filed a petition (on September 5, 2007) asking one of the judges
on the Bench, namely, Manmohan Sarin J. to recuse himself from the hearing of
the matter. The recusal petition and the review petition arising from it were
rejected by the High Court by orders dated October 4 and November 29, 2007. We
will be required to consider the unpleasant business of the recusal petition in
greater detail at its proper place later in the judgment.
While the matter of recusal was still pending a grievance was made
before the Court (on September 24) that along with the notice the proceedees
were given only five CDs, though the number of CDs submitted 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.
On September 28, 2007 counsel for IU Khan was granted permission
for viewing the six CDs submitted by NDTV on the courts record.
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.
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
case he spent some time in hotels in Rajasthan and Gurgaon with the Nanda's
paying the bills.
This time RK Anand did not give any legal notice to NDTV seeking
apology or claiming damages etc. but on the following day (December 4) he made
a complaint about the telecast before the Court. The Court directed NDTV to
produce all the original materials concerning the telecast and its transcript.
The Court further directed NDTV to file an affidavit giving details in regard
to the collection of the materials and the making of the programme.
In response to the High Court's direction one Deepak Bajpai,
Principal Correspondent with NDTV filed an affidavit on its behalf on December
11, 2007. In the affidavit it was stated that following a reference to HP in
the conversation between RK Anand and Kulkarni in the second sting that took
place in the car he went to Shimla and other places in Himachal Pradesh and
made extensive investigations there. Kulkarni was easily identified by the
people there through his photograph. On making enquiries he came to learn that
in the year 2000 Kulkarni lived in RK Anand's villa called `Schilthorn' in
Shimla for about a year under the assumed name of Nishikant.
While staying there he corresponded with an insurance company on
behalf of RK Anand, using his letter-head, in connection with some insurance
claim. Interestingly, there he also obtained a driving licence describing
himself as Nishikant Anand son of RK Anand. In Shimla and in other places in
Himachal he also duped a number of traders and businessmen. In Una he was
arrested by Police on suspicion and he had to spend about 45 days in jail.
In reply to the affidavit filed by Deepak Bajpai, RK Anand filed
an affidavit on January 10, 2008 in which he mostly tried to point out the
discrepancies in the sting recordings and contended that those were
inadmissible in evidence.
BEFORE THE HIGH COURT:
After putting the recusal petition and the review application out
of its way, the Court took up the hearing of the main matter that was held on
many dates spread over a period of four months from December 4, 2007 to May 2,
2008. RK Anand appeared in person while IU Khan was represented through
lawyers. Neither RK Anand nor IU Khan (nor for that matter Bhagwan Sharma)
tendered apology or expressed regret or contrition for their acts. IU Khan
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.
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 reporting court matters, especially live
cases pending adjudication before the court, arguing that media reports mould
public opinion and thereby tend to goad the court to take a certain view of the
matter that may not necessarily be the correct view. He also urged the Court to
lay down the law and guidelines in respect of stings or undercover operations
by media. After an elaborate discussion the High Court rejected all the
contentions of the contemnors based on these issues. Before us these issues
were not raised on behalf of the appellants. But we must observe we fail to see
how those issues could be raised before the High Court as pleas in defence of a
charge of criminal contempt for suborning a witness in a criminal trial. In the
overall facts and circumstances of the case it was perfectly open to the High
Court to deal with those issues as well. But it certainly did not lie with
anyone facing the charge of criminal contempt to plead any alleged wrong doing
by the TV channel as defence against the charge. If the telecast of the
programme concerning a pending trial could be viewed as contempt of Court; or
if the stings preceding it, in any way, violated the rights of the subjects of
the stings those would be separate issues to be dealt with separately. In case
of the former the matter was between the Court and the TV channel and in the
latter case it was open to the aggrieved person(s) to seek his remedies under
the civil and/or criminal law. As a matter of fact RK Anand had given a legal
notice to NDTV that he did not pursue. But neither the stings nor the telecast
would absolve the contemnors of the grave charge of suborning a witness in a
criminal trial. We have, therefore, not the slightest doubt that the High Court
was quite right in rejecting the contemnors' contentions based on those so
called preliminary issues.
The contemnors then raised the issues of the nature of contempt
jurisdiction and the onus and the standard of proof in a proceeding for
criminal contempt. They further questioned the admissibility of the sting
recordings and contended that those recordings were even otherwise unreliable.
In course of hearing RK Anand tried to assail the integrity of the CDs
furnished to him that were the reproductions from the original of the sting
recordings. According to him, there were several anomalies and discrepancies in
those recordings and (on 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.
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 31,
2008 for initiating proceeding of perjury against NDTV and Poonam Agarwal for
deliberately making false statements on affidavits and fabricating evidence and
(III) Crl.M. No. 4150 of 2008 filed on April 2, 2008 asking the Court to direct
NDTV to place all the original microchips before it and to furnish him copies
directly reproduced from those chips. Apart from the above, RK Anand also filed
before the High Court on March 31, 2008 an application in the nature of written
On conclusion of oral submissions, on April 5, 2008 the Court, in
presence of the three contemnors and their counsel, viewed all the original
materials of the sting operations submitted before it by NDTV. In the order
passed on that date it recorded the proceeding of the day as under:
under mentioned recordings were played in court today in the presence of
noticees, their counsel and the amicus curiae:
camera chip of conversation with Shri I. U. Khan on 28.4.2007;
Button camera DVD of conversation with Shri I. U. Khan on 28.4.2007;
Button camera chip of conversation with Shri R. K. Anand on 6.5.2007;
Button camera chip of conversation with Shri R. K. Anand on 8.5.2007;
Button Camera Chip of conversation with Sri Bhagwan Sharma; Shri Lovely;
Telecast of second expose of 3.12.2007 at H.P. stay of Sunil Kulkarni Mr.
Huzefa Ahmedi for noticee Mr. I. U. Khan and Mr. R. K. Anand for himself and
Sri Bhagwan offered their comments on the inferences to be drawn from the video
recordings and the conversations therein.
on 10th April, 2008 at 2.30 p.m. for conclusion of submissions on behalf of
On the next date April 10, 2008 RK Anand concluded his submission
and the counsel for IU Khan filed reply to the written submission of amicus
curiae. The matter came up once more before the Court on May 2, 2008 when the
Court after giving some direction to NDTV and amicus curiae, reserved judgment
in the case which was finally pronounced on August 21, 2008. The Court held
that the contempt jurisdiction of a Court is sui generis. The provisions of
CrPC and the Evidence Act are not applicable to a proceeding of contempt. In
dealing with contempt, the Court was entitled to devise its own procedure but
it must firmly adhere to the principles of natural justice.
also found and held that the recordings 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.
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 microchips were copied were
handed over to them. The proceedees, therefore, had no cause for grievance and
the submission to send the microchips for forensic examination or for directing
NDTV to submit the original microchips before the High Court had no substance
In the end the Court held that the circumstances and the manner in
which the meetings took place between the proceedees and Kulkarni and the
exchanges that took place in those meetings as evidenced from the sting
recordings fully established that both IU Khan and RK Anand were guilty of the
charges framed against them. It accordingly convicted them for criminal
contempt of Court and sentenced them as noticed above.
THE ISSUES ARISING IN THE CASE:
These are broadly all the facts of the case. We have set out the
relevant facts in considerable detail since we do not see this case as simply a
matter of culpability, or otherwise, of two individuals. Inherent in the facts
of the case are a number of issues, some of which go to the very root of the
administration of justice in the country and need to be addressed by this
appeals give rise to the following questions:
Whether the conviction of the two appellants for committing criminal contempt
of court is justified and sustainable?
Whether the procedure adopted by the High Court in the contempt proceedings was
fair and reasonable, causing no prejudice to the two appellants?
Whether it was open to the High Court to prohibit the appellants from appearing
before the High Court and the courts sub-ordinate to it for a specified period
as one of the punishments for criminal contempt of court?
Whether in the facts and circumstances of the case the punishments awarded to
the appellants can be said to be adequate and commensurate to their misdeeds?
Apart from the above, some other important issues arise from the facts of the
case that need to be addressed by us. These are:
role of NDTV in carrying out sting operations and telecasting the programme
based on the sting materials in regard to a criminal trial that was going on
before the court.
declining professional standards among lawyers, and
root-cause behind the whole affair; the way the BMW trial was allowed to go
On these issues we were addressed at length by Mr. Altaf Ahmed,
learned Senior 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.
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.
Taking the case of RK Anand first we go to the sting done on him
on May 6, 2007 when Kulkarni met him in the VIP lounge at the domestic terminal
of IGI Airport, Delhi. Here, it needs to be recalled that as Kulkarni was
behind the camera (which was fixed to his shirt front) he is not seen in the
picture. What one sees and hears are the pictures of whomsoever he is engaged
with and their voices. The video begins with Kulkarni approaching the guard at
the entrance of the airport building and asking him about the public address
system from where he could contact RK Anand who was inside the airport building
in the VIP lounge. The following are the extracts from the transcript of the
sting recording of the meeting that would give an idea how the meeting between
the two took place and what was said in the meeting.
EXCHANGE BETWEEN KULKARNI & RK ANAND:
Excuse me, apka announcement kaha hai? Someone: Kis liye? Kulkarni: Mr. RK
Anand, yaha hai, ex Member of Parliament, mujhe unse milna hai, urgent....I
think woh udhar hi hai.
ON THE PUBLIC TELEPHONE AT THE AIRPORT Kulkarni: Hello Haanji boss, bahar hi
hoo...gate No.1 gate No.2 ke beech mein, Ha, VIP gate ok...I'll be there. Ya,
ya, ya, ya, ok.
HANGS UP AND PROCEEDS TOWARDS THE VIP GATE Kulkarni: Poonam, keep your mobile
on! Ok! and keep it with your recorder! Ok! Ok! I'm leaving for the VIP
gate...he is waiting there..ok...ok Anand: Kya badmashi karte rehte ho?
Kulkarni: Main aapko wohi time bata raha tha ke mujhe sab kuch pata tha ye..isi
liye hamne...but lekin nobody believed me...(Anand laughing) Anand: Acha Tu
mere saath badmashi karni band kar de...tu banda ban ja.
Aap banaoge to banoonga.
Agar nahi banega to main maroonga (Kulkarni: cuts in)
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Kulkarni: Ab kya strategy banani hai
Maine message bheja tha khan saab ke pass...aapko shayad mila hoga Anand:
Haan...mil gaya tha xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Anand: Main kya bola?
(Laughs) Anand: Acha let me come back tomorrow, meri flight ayegi koi saare nau
(9.30) baje..tum ghar mein xxxx.
Han that will be better because I dont want.....
Anand: Haan ab....ab mujhe batao...
Mujhe bola dhai crore doonga...aap batao mereko.
Hain? Kulkarni: Dhai crore.....
paanch crore maang le.....
Main paanch crore maang leta hoo...
Tere ko cross examine maine zaroor karna hai! Kulkarni: Aur doosri
baat....cross examine aap karoge mereko? (Anand laughs)
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Kulkarni: Jab bhi mereko zaroorat padegi
main ghar pe aa jaunga, mujhe pata hai.
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..
Nahi farm pe milna.
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.
kyon office mein bhi aur ghar pe bhi mat millo...yeh sare log mere peeche...
yahan kyon milte ho phir? Kulkarni: Yahan koi nahi dekhta...acha abhi kya karna
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....
Baat to tumhare samne karonga, peeche to karongaa nahi....
Vo to mainbhi janta hoo Anand: Samne baat hogi tumhare Kulkarni: Kal kya mere ko
nikaal rahe ho kya...311 se? Anand: Nikal doo? Kulkarni: Nahi..nahi mat nikalna
xxx Anand: Nahi Nikalta Kulkarni: Nahi Nahi mat nikalna..withdraw karva lo na
aap...jab main aapke saath hoo, jo marzi karne ke liye tyaar hoo. to yeh kaye
ke liye High Court main laga diya aapne..aur mere upar aapko itna bhi bharosa
nahi hai kya.....theek hai gussa ho jata hoo main xxxx..
Nahi Nahi Kulkarni: Lekin aana hai.....depose karna hai.
usse kya baat karni hai...batao, Reasonable baat karo.
Aap decide karo.
Tum decide karo.
Woh to you decide."
30,000 crores...CBI ne 2300 crores..big investment...84 crores Anand: Vo choddo
Kulkarni: Kyon..kyon Chodo..kyon chodo?.. Aap..main aapka beta hoo. bolo.
Tumhara bheja kharaab ho gaya hai...(Laughs) Kulkarni: Kharaab ho gaya hai na
Haa bheja kharaab ho raha hai.
Anand: So you have not taken the summon? Kulkarni: Na...not al all. Jab tak aap
nahin bataoge, Khan sahib nahi bataenge tab main summon kaise lu.
How did Ramesh Gupta inform him that you have taken the summons?
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Kulkarni: Ab maine kya karna hai..maine
summon liya nahi hai..aap mere upar to bharosa kar sakte ho na? Anand: Poora,
mujhe to poora...
Poora vishwas hai na? To maine summon nahi liya ha...
Anand: I'm out of touch...I'm not in trial, I'm in High Court so I don't
know...anyhow..what statement you are supposed to make..we will decide about
it...First of all, meet the bugger and talk to him. And be reasonable. Don't be
unreasonable like what you told me that day. Don't be silly! Kulkarni: Kitna
Mango? Anand: Chodo na...bat samjha kar yaar...aadmi ko zindagi main aur bhi
bade kaam aate hai...aise nahi karte..that fellow is sick you know..that
man..jo kya naam hai uska xxx Kulkarni: Hmm.
Anand: Talk to me around seven forty five.
Ok Anand: Ok Kulkarni: Sir..
Then we'll decide about it.
Kulkarni: Hmm. Paune aath (8) baje I'll get back to you..agar paune aath (8)
baje aap bulate ho to main aaju-baaju ke area main hi rehta hoo..Kanth ko bula
lena bas..meri ek dil ki bhadaas niklane do bas...do minute.
Aaju baju mein hi rehna, main tumhe bula lunga.
Isme bachana hai na usko Sanjeev ko? Anand: xx Kabhi kisika bura mat kiya karo.
Panga lene ka kaya faydaa.! Kulkarni: Theek hai.
Nahi..lekin kaise kya karna hai vo aapne aur khan sahab ne decided karna
hai..after all it was merely an accidentxxx.
And he remained in jail for 8-9 months...yaar.
To main..to mere ko bhool jayoge aap..pentalis (45) din.
Anand: You were enjoying..
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..
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...
Chalo theek hai. Aap ke kehne par main kuch bhi karne ke liye tayaar hoo..aur
inki saari galat information hai.
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...
kisi main interested hi nahi hoo..kisiko phasane main...
nahi vo to mujhe bhi pata hai...
logo ne Narsimha Rao ko phasaya..acha thodi hua tah vo..vaapis chhuraya tha
humne..kya fayda hua..
Main aajo baajo main paune aath baje..aap mere ko bula lena Anand: Give me a
call at seven forty five..
my office number.
Kulkarni: Phir mere khayaal se 311 udega nahi na, blood sample ka udega? Anand:
Hain? Anand: Kyon udaye..jab tumhare pass paise bante hai to main kyon udayo?
Kulkarni: Jab main aapke saath hoo..
Ha..to phir kya hai..
Kulkarni: Koi neta log tha..acha..seven forty five..
It is quite possible that Kulkarni had somehow found out RK
Anand's programme and RK Anand did not know that he was coming to meet him at
the airport but there can be no doubt that he allowed him to come to him and
the meeting took place with his consent. From his opening remark and the
general tenor of the conversation it is evident that they were quite free and
familiar with each other. (We may recall here their seven years old Shimla
connection!). Now, when Kulkarni asks him what strategy was to be made it could
mean only one thing. He did not give any direct reply to that question but he
did not ask Kulkarni to shut up either. When Kulkarni said that he was offered
two and half crores he indeed mockingly suggested that he should ask for five
crores but here also what was sought to be ridiculed was the sum quoted and not
the prospects for negotiation. As a matter of fact for further negotiation door
was kept wide open with the express invitation for further meeting albeit at a
discreet place and time.
The meeting at the airport might or might not have been scheduled
but there can be no doubt that the meeting in the car was fixed from before.
Otherwise, it was impossible for Kulkarni to enter the car having equipped
himself with a hidden camera and the recording device from before in
anticipation that he would get the chance to get into the car outside Delhi
High Court. The purpose of the meeting is manifest by the conversation between
the two. It is also evident that before parting another meeting was fixed in
the evening for which Kulkarni was to call up RK Anand at his office. As
arranged, Kulkarni did telephone at RK Anand's office but the meeting did not
take place there or with RK Anand. The meeting 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.
on behalf of RK Anand:
Mr. Altaf Ahmed, learned senior counsel appearing for RK Anand,
submitted that the High Court founded the appellant's conviction under the Contempt
of Courts Act on facts that were electronically recorded, even without having
the authenticity of the recording properly proved. The High Court simply
assumed the sting recordings to be correct and proceeded to pronounce the
appellant guilty of criminal contempt on that basis. Hence, the genuineness and
accuracy of what appeared in the sting recordings always remained questionable.
Mr. Ahmed submitted that the judgment and order coming under appeal was quite
untenable for the simple reason that the integrity of its factual foundation
was never free from doubt. Learned counsel further submitted that the procedure
followed by the High Court was not fair and the appellant was denied a fair
submitted that the High Court arrived at its conclusions without taking into
consideration the appellant's defence and that was yet another reason for
setting aside the impugned judgment and order.
Mr. Ahmed submitted that under the Contempt of Courts Act the High
Court exercised extra-ordinary jurisdiction. A proceeding under the Act was
quasi criminal in nature and it demanded the same standard of proof as required
in a criminal trial to hold a person guilty of criminal contempt. In support of
the proposition he cited two decisions of this Court, one in Urvashi Gulati and
ors., (2001) 7 SCC 530. In both the decisions the Court observed that the
common English phrase, "he who asserts must prove" was equally
applicable to contempt proceedings. In both the decisions the Court cited a
passage from a decision by Lord Denning in Re Bramblevale Ltd., (ALL ER pp.
1063H and 1064B) on the nature and standard of evidence required in a
proceeding of contempt.
contempt of court is an offence of a criminal character. A man may be sent to
prison for it. It must be satisfactorily proved. To use the time-honoured
phrase, it must be proved beyond reasonable doubt. It is not proved by showing
that, when the man was asked about it, he told lies. There must be some further
evidence to incriminate him. Once some evidence is given, then his lies can be
thrown into the scale against him. But there must be some other evidence. Where
there are two equally consistent possibilities open to the court, it is not
right to hold that the offence is proved beyond reasonable doubt."
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
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.
of electronically recorded & stored materials in evidence:
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 to say with any certainty that
the microchips that finally came before it for viewing were the same microchips
that were used in the spy cameras for the stings or those were not in any way
manipulated or interfered with before production in court.
further submitted that the admissibility in evidence of electronic recordings
or Electronically Stored Information (ESI) was subject to stringent conditions
but the High Court completely disregarded those conditions and freely used the
sting recordings as the basis for the appellants' conviction.
In support of the submissions Mr. Ahmed submitted a voluminous
compilation of decisions (of this Court and of some foreign courts) and some
technical literature and articles on ESI. We propose to take note of only those
decisions/articles that Mr. Ahmed specifically referred to us and that have
some relevance to the case in hand.
Two of the decisions of this Court referred by Mr. Ahmed, one in S
A Khan vs. Bhajan Lal, (1993) 3 SCC 151 and the other in Quamarul Islam vs. S.
K. Kanta, (1973) 1 SCC 471 relate to newspaper reports. In these two decisions
it was held that news paper report is hearsay secondary evidence which cannot
be relied on unless proved by evidence aliunde. Even absence of denial of
statement appearing in newspaper by its maker would not absolve the obligation
of the applicant of proving the statement. These two decisions have evidently
no relevance to the case before us.
In regard to the admissibility in evidence of tape recorded
statements Mr. Ahmed cited a number of decisions of this Court in (i) N. Shri
Rama Reddy vs. V. Giri (1970) 2 SCC 340 (ii) R. M. Malkani vs. State of
Maharashtra (1973) 1 SCC 471 (iii) Mahabir Prasad Verma vs. Dr. Surinder Kaur
(1982) 2 SCC 258 and (iv) Ram Singh vs. Col. Ram Singh (1985) Suppl SCC 611. He
also referred to two foreign decisions on the point, one in (i) R vs.
Stevenson, 1971 (1) All ER 678, and the other of the Supreme Court, Appellate
Division of the State of New York in The People of State of New York vs.
Francis Bell (taken down from the internet). We need here refer to the last
among the decisions of this Court and the English decisions in R vs. Stevenson.
In Ram Singh, a case arising from an election trial the Court examined the
question of admissibility of tape recorded conversations under the relevant
provisions of the Indian Evidence 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:
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.
accuracy of the tape-recorded statement has to be proved by the maker of the
record by satisfactory evidence-direct or circumstantial.
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.
statement must be relevant according to the rules of Evidence Act.
recorded cassette must be carefully sealed and kept in a safe or official
voice of the speaker should be clearly audible and not lost or distorted by
other sounds or disturbances."
In R vs. Stevenson too the Court was dealing with a tape recorded
conversation in a criminal case. In regard to the admissibility of the tape
recorded conversation the court observed as follows:
as in the case of photographs in a criminal trial the original un-retouched
negatives have to be retained in strict custody so in my views should original
one looks at it, whether, as counsel for the Crown argues, all the prosecution
have to do on this issue is to establish a prima facie case, or whether, as
counsel for the defendant Stevenson in particular, and counsel for the
defendant Hulse joining with him, argues for the defence, the burden of
establishing an original document is a criminal burden of proof beyond
reasonable doubt, in the circumstances of this case it seems to me that the
prosecution have failed to establish this particular type of evidence. Once the
original is impugned and sufficient details as to certain peculiarities in the
proffered evidence have been examined in court, and once the situation is
reached that it is likely that the proffered evidence is not the original-is
not the primary and the best evidence -that seems to me to create a situation
in which, whether on reasonable doubt or whether on a prima facie basis, the
judge is left with no alternative but to reject the evidence. In this case on
the facts as I have heard them such doubt does arise. That means that no one
can hear this evidence and it is inadmissible."
Mr. Ahmed also referred to another decision by a US Court on the
admissibility of video tapes. This is by the Court of Appeal of the State of
North Carolina in State of North Carolina vs. Michael Odell Sibley (downloaded
from the internet). In this decision there is a reference to an earlier
decision of the same court in State vs. Cannon. 92 N C App. 246 etc. in which
the conditions for admissibility of video tape in evidence were laid down as
prerequisite that the offer or lay a proper foundation for the videotape can be
testimony that the motion picture or videotape fairly and accurately
illustrates the events filmed (illustrative purpose); (2) "proper
testimony concerning the checking 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
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 .
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 computer system would not make that information
reliable and authentic.
He also invited our attention to an article appearing in The Indian
Police Journal, July- September 2004 issue under the caption "Detection
Technique of Video Tape Alteration on the Basis of Sound Track Analysis".
From this article Mr. Ahmed read out the following passages:
acceptance of recorded evidence in the court of law depends solely on the
establishment of its integrity. In other words, the recorded evidence should be
free from intentional alteration. Generally, examination of recorded evidence
for establishing the integrity/authenticity is performed to find out whether it
is a one-time recording or an edited version or copy of the original."
on an audio recording can be of Addition, Deletion, Obscuration, Transformation
and Synthesis. In video recordings the alteration may be with the intention to
change either on the audio track or on the video track. In both the ways there
is always disturbance on both the track. Alterations in a video track are
usually made by adding or removing some frames, by rearranging few frames, by
distorting certain frames and lastly by introducing artificially generated
frames. Alteration on a video recording"
In light of the decisions and articles cited above Mr Ahmed
contended that the High Court freely used the copies of the sting recordings
and the transcripts of those recordings made and supplied by NDTV without
caring to first establish the authenticity of the sting recordings. Learned
counsel submitted that the use of the CDs of the sting recordings and their
transcripts by the High Court was in complete violation of the conditions laid
down by this Court in Ram Singh.
Learned counsel pointed out that at the threshold of the
proceeding, started suo moto, the High Court, instead of taking the microchips
used for the sting operations in its custody directed NDTV `to preserve the
original material including the CDs/Video' pertaining to the sting operations
and to submit to the Court copies and transcripts made from those chips. Thus
the microchips remained all along with NDTV, allowing it all the time and
opportunity to make any alterations and changes in the sting recordings (even
assuming there were such recording in the first place!) to suit its purpose.
The petition filed by RK Anand 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.
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.
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.
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 finding of the High Court was thus based on materials of which neither the
authenticity was proved nor the veracity of which was tested by
cross-examination. He further submitted that the affidavit of the NDTV reporter
(Poonam Agarwal) doesn't cure this basic flaw in the proceedings. The
recordings were not done by the TV channel's reporter: her participation in the
process was only to the extent that she `wired' Kulkarni and received from him
the recorded materials. What she received from Kulkarni was also not
identified, much less formally proved before the High Court. According to Mr.
Ahmed, therefore, the finding of the High Court was wholly untenable and fit to
be set aside.
The legal principles advanced by Mr. Ahmed are unexceptionable but
the way he tried to apply those principles to the present case appear to us to
be completely misplaced.
Here, we must make it clear that we are dealing with a proceeding
under the Contempt of Courts Act. Now, it is one thing to say that the standard
of proof in a contempt proceeding is no less rigorous than a criminal trial but
it is something entirely different to insist that the manner of proof for the
two proceedings must also be the same. It is now well settled and so also the
High Court has held that the proceeding of contempt of court is sui generis. In
other words, it is not strictly controlled by the provisions of the CrPC and
the Indian Evidence Act. What, however, applies to a proceeding of contempt of
court are the principles of natural justice and those principles apply to the
contempt proceeding with greater rigour than any other proceeding. This means
that the Court must follow a procedure that is fair and objective; that should
cause no prejudice to the person facing the charge of contempt of court and
that should allow him/her the fullest opportunity to defend himself/herself.
(See In Re Vinay Mishra (1995) 2 SCC 584, Daroga Singh and Ors. vs. B.K. Pandey
(2004) 5 SCC 26) CORRECTNESS OF STING RECORDINGS NEVER DISPUTED OR DOUBTED:
Keeping this in mind when we turn to the facts of this case we
find that the correctness of the sting recordings was never in doubt or
dispute. RK Anand never said that on the given dates and time he never met
Kulkarni at the airport lounge or in the car and what was shown in the sting
recordings was fabricated 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.
are the extracts from the exchange between the anchor and RK Anand] LIVE
EXCHANGE BETWEEN TV ANCHOR & RK ANAND:
60 Minutes (BMW Special) 8 PM"
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 Rs. 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'd not serious manner.
what the hell you want and I never invited him I was going out he must have
come there to meet me and I don't know what kind of story if being made my NDTV
on this channel.
Sonia: But Mr. Anand if you have a witness who has come up, you have a witness
of the prosecution who has come up to you he has claimed that he wants this
much money and you may've laughed it off but you then met him again, you've
again discussed details of the case, surely that is not appropriate behaviour
for a defence lawyer with a prosecution witness.
See, did I ask him to sit in the car? Did I ask him to come to my office? Did I
ever give him a call to come to me? We never called. I think it's a trap being
laid by the NDTV people and sending the Kulkarni to me. It's nothing that we
have done anything.
Sonia: But Mr Anand, let me come back to the central point once again why
should a defence lawyer and a prosecution witness be meeting and discussing the
case even if it's at the behest of the witness, surely as a senior defence
lawyer you should've thrown him out and not entertained this conversation? RK
Anand: Just listen to me now; somebody comes up and talks to you, what do you
do, you throw him out? xxxxxxxxxxxxxxxxxxxxxxxxxx Sonia: But you met him again
in your car? RK Anand: HE was saying 2.5 and I said make a demand for 5. I was
making a joke of him.
not understand the language in which I said it? I was laughing at that time.
Listen to me, he is a blackmailer, he is trying to blackmail at your instance.
Sonia: Mr Anand, if you were joking the questions that we are raising as we've
said many times, we have no evidence that money changed hands or didn't change
hands, what we are showing you is what was caught on camera. Money being
discussed whether it was jokingly or not jokingly has to be investigated and
two meetings between you and the key prosecution witness, that seems to be what
is currently on camera, what actually happened has to be investigated. But how
do you justify these two meetings? RK Anand: You are trying again to ask
questions after questions. I am saying that you know when he said about 2.5
crores, I laughed at him and said bloody you are joking. I was smiling at him;
he was making a fool of himself.
Next is his response in course of the second telecast immediately following the
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.
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.
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 blackmailer?
Anand: I have not met him in my car I'm telling you, this is not correct.
Did u meet him a second time? Anand: No I did not meet him Barkha: Sir our
investigation reveals that you met him at the Delhi airport and then again a
second time conversation between you and him takes place inside a car, it may
not have been your car.
two separate meetings for sure sir.
There is no second meeting, I've never met him. I only met him once and that he
came. I was going out of Delhi, and somebody comes and talks to me and asks for
2.5 crores and I laughed at him that what the hell are u talking. U want 2.5
crores and just see what I've said.
cross-examine you. He said will you cross-examine me, I said yes I'll
we go to the HC and tell HC that he is a blackmailer and we will not examine
Barkha: Anand, when Sunil Kulkarni met u at the airport, how correct is it for
the defence lawyer to be toughing (sic. laughing) when Sunil Kulkarni raises
the question of Rs 2.5 crores. In response u laugh and say for that money I
will cross-examine you. Even as a joke is it appropriate? Anand: It is not a
joke I'm saying.If somebody comes before your vision suddenly when u are going
out of Delhi, and say I will demand 2.5 crores, I say what 2.5 crores, make a
demand of 5 crores I will cross examine you in the court of law
we (sic. have) flatly denied meeting Sunil Kulkarni, is that correct? Anand:
I've not met him a second time.
Barkha: u think its appropriate for you to asking the prosecution witness to
come and met you at your house sir? Anand: why what is the difficulty in
meeting anyone, I don't understand? Barkha: So according to u RK Anand.....
long u do not influence them...
As may be seen from the above, the first response of RK Anand is
to try to explain away (quite unconvincingly to anyone who might have viewed
the recorded programme!) what he said when Kulkarni mentioned the amount of
rupees 2.5 crores. He admitted that Kulkarni met him at the airport lounge. He
didn't deny any part of the conversation between them as shown in the programme
based on the sting recordings. To the anchor of the first programme, 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.
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.
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.
with Kulkarni in car admitted:
RK Anand filed his reply affidavit in response to the notice
issued by the Court on October 3, 2007. In paragraph B of the affidavit he
denied, "each and every part of alleged tape conversation and CDs produced
before the Court in response to order passed by this Court in relation to
telecast of BMW exposing thereby denying each part of the conversation".
He further stated that the whole tape was fabricated, distorted, edited in such
a manner to tarnish his image and to suit and project the TV channel's story in
paragraph `O' of the affidavit, however, he stated as follows:
That the Deponent was awfully busy in Court on 8.5.2007. He finished his
arguments in a bride burning case at 5.45 p.m. While he was sitting in his car,
Sunil Kulkarni made entry in the car. The Deponent was unwilling to talk and to
allow him to sit in the car. The opening lines would make it clear that the
Deponent never wanted to talk to Sunil Kulkarni.
Kyon office mein, ghar pe bhi mat milo....
Yahan Kyon milto ho phir."
reaching office, the deponent had meeting with clients i.e. Sanjeev Nanda and
his father. Lovely had come to meet Mr. Suresh Nanda. All the colleagues of the
deponent and Nanda's were apprised of development in the car about Sunil
Kulkarni. After some time, the deponent left the office. The deponent was
informed that Lovely offered to record the conversation of Kulkarni so as to
trap him. The deponent was informed later that not only Lovely was successful
in recording the demand of Sunil Kulkarni but Shri Bhagwan also recorded
another conversation subsequent to that of Lovely. The said conversation is reproduced
This is followed by a transcript of some alleged conversation
between Shri Bhagwan and Kulkarni.
In the above quoted paragraph there is plain and clear admission
in regard to the second meeting taking place in the car between RK Anand and
Kulkarni on the evening of May 8, 2007.
statement made on oath before the High Court thus completely falsifies his
denial in the live interview with the anchor of the TV programme about the
second meeting with Kulkarni in the car.
As to the
later part of the paragraph regarding the alleged sting on Sunil Kulkarni by
Shri Bhagwan, we don't have the slightest doubt that it was an afterthought and
concoction. Had there been such a sting recording RK Anand was duty bound to
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 &
to sting recordings to show innocence:
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:
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
Kanth also rebuked him for his conduct.
stands corroborated by the transcript in which it has been stated by Sunil Kulkarni
as under:- "Kul: mujhe koi to message nahi mil raha tha. Phir panga yeh ho
raha ki when u told me I don't want to discuss (mujhe koi message nahi mil raha
tha phir panga yeh ho raha ki when u told me I don't want to discuss."
"beech main aap par gussa ho gaya tha.
aap par gussa ho gaya tha, aap ka koi neta log hain, ek aaddmi jisne mere ko
aisa kheencha tha).
aapka ek neta log hain ek Neta isne mereko aisa Kheecha tha (Ek neta tha usne
mere kko aisa kheencha tha, aisa kheencha tha, bola sahib ne milne ko manakar
diya, bigar gaya, kaha bhag jao, bhag jao, aisa bola)."
the above transcript, it is clear that the Respondent had no intention at any
time to meet the said witness. He was thrown out physically from the office of
Respondent. He was told not to meet the Respondent as they are not interested
in any one."
in paragraph Z10 it is stated as follows:
deponent has never tried or intended to influence this witness so as to
interfere in the course of justice. On the other hand, deponent have rebuked
and rebuffed him & told him not to ask for any money. Rather the witness
was advised to speak the truth and not to falsely implicate the Nanda's.
Respondent has gone to the extent of telling him to have fear from God since
everyone is answerable for his acts to God........"
in paragraph 17 it is stated as follows:
deponent had no intention to discuss the subject matter of the case with Sunil
Kulkarni. The discussion was started by Sunil Kulkarni by alleging that;
"kal kya mereko nikaal rahe ho kya...311 se."
nahi Kulkarni No, nahi nikalna Kulkarni nahi, nahi, mat nikalna..withdraw karva
lo na aap. Jab Main aapke saath ho jo marzi karne ke liya tyaar ho to yeh kay
ke liye High Court main lagwa diya aapne...mere upar aapko itna bhi bharosa
nahin hain kya..theek hain gussa ho jata hoon main....
lekin aana hain depose karma hain."
aforesaid transcript of Sunil Kulkarni would clearly indicate that he himself
was suggesting that he is prepared to make any kind of statement. It is not
that the 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."
in Paragraph 23 "23.........The below noted conversation would
substantiate the stand of the deponent.
chodo...baat samjha kar...aadmi ki zindagi main aur Bhi bade kaam aate hain.
Aisa nahi karte"
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.
"isme bachana hain usko sanjeev ko..
kabhi kisika bura mat kiya karo.
kisi ka bura nahin kara karo..aisa bhala karne se hi Aadmi ko acha xx....kisii
ko jhoota nahi phasana chahiya....nikal dena chahiye...
aage jake bhi bhagwan ko jawaab dena hota hain yaar ...aage bhi jawaab...kya
se phir bhi ache rehta hain...phasane me To bura kaam hota hain...main to kisi
main interested hi nahin hoon."
in paragraph 24 "24. That during the course of conversation and in view of
the past acquaintance Sunil Kulkarni had with the deponent, number of
irrelevant statements were made by the witness. One such part was in relation
to Amodh Kanth. The important conversation which came to light during the
course of the talks was;
koi taluk nahin..phir bhi yeh amod kanth ke peeche kyon pada hua
He thus accepts the entire recordings in both the stings. For, it
is absurd even to suggest that the sting recordings are true and correct if
those are seen as supporting his explanations (which, in any event, are quite
un-statable!) but are otherwise false and fabricated.
In a rearguard action Mr. Altaf Ahmed took us one by one through
all the paragraphs in different affidavits filed by RK Anand in which the sting
recordings were described as false, fabricated, doctored, morphed and
manipulated. But those allegations are simply not compatible with the other
statements in his affidavits as noted above and his responses in regard to the
sting operations at different times. The denials in the affidavits are nothing
more than ornamental pleas.
We also see no substance in the anomalies and alleged inter
correlation in the sting recordings as pointed out on behalf of RK Anand on the
basis of the eight minute CD which he got prepared from the materials supplied
to him by the Court. Along with the other materials we also viewed eight minute
CD produced by RK Anand. In the CD an attempt is made to show that the frames
in the sting recordings sometimes jumped out of the sequence number and such
other technical flaws. The objections raised by RK Anand where fully explained
by the affidavit filed by Dinesh Singh on behalf of NDTV. In the affidavit it
was explained "80...the alleged discrepancies in the CDs produced before
the Court and supplied to the appellants occurred primarily due to conversion
of the recorded material 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."
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.
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, there was no requirement of any formal proof of the sting
recordings. Further, so far as RK Anand is concerned there was no violation of
the principles of natural justice inasmuch as he was given copies of all the
sting recordings along with their transcripts. He was fully made aware of the
charge against him. He was given fullest opportunity to defend himself and to
explain his conduct as appearing from the sting recordings. The High Court
viewed the microchips used in the spy camera and the programme telecast by TV
channel in his presence and gave him further opportunity of hearing thereafter.
The sting recordings were rightly made the basis of conviction and the
irresistible conclusion is that the conviction of RK Anand for contempt of
court is proper legal and valid calling for no interference.
The sting on IU Khan was done on April 28, 2007 in one of the
lawyers' chambers at the Patiala House court premises. The video CD begins by
showing Poonam Agarwal fixing the recording device and the button camera on
Kulkarni's person sitting inside the car. Then Kulkarni and Deepak Verma
together enter the Patiala House. They move around in the court premises for a
long time till just before the lunch recess they are able to find IU Khan
sitting in someone else's chamber. The chamber seems to be quite crowded with
people all the time coming and going away.
exchange of greetings between IU khan and Kulkarni as he, accompanied with
Deepak Verma, enters into the chamber is not audible. But then IU Khan is heard
describing Kulkarni, in a general sort of introduction to those present there,
as `the prime witness in the BMW case', `star witness' `a very public spirited
and devoted man' etc. Kulkarni starts chatting with him about the summons
issued to him by the court in the BMW case. In the meanwhile someone else comes
into the chamber. IU Khan greets him loudly and starts talking to him. After a
while, on Kulkarni's request, both IU Khan and Kulkarni come out of the chamber
and some conversation between the two takes place outside the chamber. After
the meeting is over Kulkarni and Deepak Verma together return back. As the
recording devices carried by them are still on the conversation that takes
place between the two is naturally recorded. Kulkarni does not allow Deepak
Verma to go directly to the TV Channel'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
partial transcript of the sting recording submitted to Court:
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
transcript/recording of IU Khan's interview by TV channel on May 31, 2007 not
Further, it is noted above that in the morning of May 31, 2007 one
Anusuya Roy, a reporter from NDTV had interviewed IU Khan at his residence for
his response to the programme telecast the previous evening. The interview was
telecast live from around 8 to 8.23 in the morning.
was the only time the full interview was shown and later only one statement
made by IU Khan in course of the interview was incorporated in the programmes
telecast in the evening of May
is more significant, however, is that NDTV did not present before the High
Court either the full recording of the interview or its transcript and what we
find on the High Court record is only the statement that was used in the
programmes telecast on May 31, 2007 and that runs as follows;
Khan: I am not denying anything at all, I am not denying it but the
interpretation, meaning and inferences which were drawn are totally wrong,
unfounded and totally inconsonance (sic) with the actual record that I am
producing before you. Kulkarni also has used the word `Bade Saheb' means the
big officer, high officer of the police headquarter. In his deposition in the
court also he had used the word Bade Saheb twice and when the explanation was
sought, he explained that by bade saheb I mean senior officer of the police
headquarter, it was unconnected to Mr. R.K. Anand as it has been wrongly,
mischievously and calculatedly projected by you people."
in submitting copies of sting recording to High Court:
Yet again, there is serious confusion about the production of the
recording of the first sting on the microchip of the spy camera carried by
Kulkarni before the High Court. It is noted above that on June 1, 2007 three
chips and five CDs were produced before the trial court. Those were returned
back because in the meanwhile the proceeding was initiated by the High Court.
On June 2, 2007 six CDs were submitted before the High Court. On that date
Poonam Agarwal stated before the Registrar that one of the CDs (marked `1') was
edited and the other five CDs (marked `2' to `6') were unedited. She also said
that NDTV news channel did not have any other material in connection with the
sting operation in question. On June 6, 2007 she submitted the transcripts of
the recordings. In the statement made on that date she said that she had
earlier submitted six 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 Kulkarni's camera and other in the bag camera of Deepak Verma. In the other
three stings there was a single spy camera carried by Kulkarni, on each
occasion having a fresh microchips. Thus for all the four stings a total number
of five chips were used. The contents of the microchip in Kulkarni's spy camera
used for the first sting (on IU Khan) were copied onto magnetic tape and then
to a CD. That microchip was then reformatted for other uses.
four microchips were available in their original and undisturbed condition. For
preparation of the programme telecast on May 30 the contents of all the five
chips, including the one that was reformatted, were used. However, the five
unedited CDs (marked `2' to `6') that were submitted before the High Court on
June 2, 2007 were copies from the four microchips that had remained in their
original and undisturbed condition. The sixth CD (marked as `1') was the copy
of the programme that was telecast. The recording on the microchip in
Kulkarni's camera used for the first sting operation, though available on
magnetic tape and CD was not submitted to the High Court because the microchip
itself was reformatted. She further stated that while supplying CDs to the
noticees in pursuance to the direction of the Court, "a mistake occurred
in that, one of the CDs given to the noticees (sic) was not taken from the
"four chips but the CD which is a copy of the formatted chip containing
the recording done by Mr. Kulkarni". She further stated that a CD made
from the mother tape of the formatted chip was being filed along with the
affidavit before the High Court.
What follows from the affidavit may be summarised as follows; (I)
the conduct of NDTV before the High Court in a very serious proceeding was
quite cavalier and causal. (II) At the time the High Court issued show cause
notices to the three proceedees it did not have before it the recording on one
of the five microchips used in the sting operations. (III) The materials given
to the proceedees along with show cause notice were not exactly the same as
submitted before the High Court. (IV) The explanation in the form of Poonam
Agarwal's affidavit came on October 1, 2007 on the same day when IU Khan filed
his reply affidavit in response to the show cause notice.
In those circumstances it was not wrong for IU Khan to state in
paragraphs 14 and 15 of his memorandum of appeal as under:
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."
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..."
have no effect on RK Anand's case or even on case of IU Khan:
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.
Further, having regard to the defence taken by IU Khan the
aforementioned lapses do not have any material affect on his case either. But
before proceeding to examine his defence and how the High Court dealt with it,
it would be necessary to see what conversation is shown to have taken place in
the sting recordings between Kulkarni and IU Khan.
EXCHANGE BETWEEN KULKARNI & IU KHAN:
Meet Kulkarni, he is the prime witness in the BMW case. He is our star witness
and he is a very public spirited and devoted man and incidentally, he was in
Delhi on the way/day when this unfortunate incident happened. He was going on
foot to the Nizamuddin Railway Station.
FOLLOWS THAT IS HARD TO UNDERSTAND Kulkarni: Mein barbad ho gaya, sir.
How? Kulkarni: This particular thing is only you and myself are aware of. But I
am not aware of anything, anything. I don't want to go again with that
particular guy. I lost my mother, I don't know where my father is. I'm just
roaming around for 8 years. Ab yeh mujhe kyun bulaya gaya hai? Khan: Ab court
ne (coughs) we dropped you....court ne (unclear) Kulkarni: No, no you....I
think the state told you to drop, right, if I'm not wrong? Khan: These were the
instructions I received from the Headquarters and that's why I got the SHO
statement recorded that "on the instruction of the SHO and the ACP, such
and such witness has been dropped". Then how can I make a statement? My
clients are Delhi Police. Whatever instructions they will give, I will act upon
it. I was very keen to examine you.
Ya, I know that because I still remember, still remember.
Inhone mera haath dabaya xxxbhi dabaya, khoob dabaya, maine kaha main kya
karoo, agar individual client ho to samjha bhi lo, department hai.
Bade Sahab se mile? Nahi mile? Mulakat hi nahi hooyi? Kulkarni: Ab yeh kya
jhanjhat aur? Khan: Nahi nahi kuch nahi hoga, ab High Court mein unhone
petition file kar di hai ki Kulkarni ki statement xxxxxxx.
To woh record karenge nahi na? Khan: Nahi.
Pakka? Khan: Tum mauj karo...hum...humne drop kar diya, court ko kya...who is
he is to say that it should be recorded.
Investigation to court kar sakta hai, pur mode of investigation to determine
nahi kar sakta.
Exactly, they cannot decide the mode of investigation SOMEBODY ENTERS THE
CHAMBER Kulkarni: Khan Sahab, ek minute, chale jata hoo, mein sham to ghar pe
xxxxaa jaon ga.
ha who to ana hi hai, ghar pe nahi xxx Kulkarni: Who to abhi dilli mein aya hoo
to aya hoo, ek second.
Delhi, you're our guest.
Inka nahi! Khan: Na inke nahi.
Aapka aur hamara personal effort/rapport (not clear) hai Kulkarni: Who to alag
hi baat hai.
Aur, bhai yaar thanda peeke jana.
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.
of Delhi? Kulkarni: Out of Delhi, Haan.
Sham ko keh baje aaoge? Kulkarni: Aaj nahi aaonga...mein kal zarror...shamko.
Sunday aaram reheat hai aur....
Sunday ko kis waqt aaoge? Kulkarni: Aap batao mere ko.
Aapko suit kaunsa time karta hai? Kulkarni: Koi bhi.
Saat aur aath ke darmiyan? Kulkarni: Hann, theek hai.
Kalxxx Kulkarni: Lekin kisi ko bhi batao mat.
Nahi ji, sawal hi paida nahi hota yaar.
tumhare liye bahut badiya scotch rakhi hui haixxxx Kulkarni: Scotch..laughs Khan:
Bahut badiya xxxx Kulkarni: Acha baki sab khairyat sahib? Khan: Sab khairyat
xx.Khuda ka xxx Kulkarni: Chalo, kal mulaqat hogi Kulkarni: Ok, main...
(Mr.Khan cuts in) Khan: Saat aur aath ke darmiyan Kulkarni: Main, vese meri K K
Paul se baat hui hai, lekin maine abhi tak nahin bola hoo I have not received
summons at all. Woh mere ko bata dena.
tum aajao Kulkarni: Main...Huh? Woh hamare dono ki baat hogi, Khan: Theek hai.
After this Kulkarni and Deepak Verma return back. As walking along
they naturally talk about the sting done by them together.
As we shall see presently much depends on what IU Khan meant when
he asked Kulkarni whether he had met `Bade Saheb'.
As noted above IU Khan does not deny the conversation that is
shown to have taken place between him and Kulkarni. In his first response, that
is, in the interview given to NDTV on the morning following the telecast he
said that he did not deny anything at all, he did not deny (the utterances) but
the inferences sought to be drawn were totally unfounded and wrong. When he
said `Bade Saheb' he meant some high officer in the police headquarter. He also
said that was the way Kulkarni used to refer to superior officers in the police
headquarter(s) and that is how he had referred to them in his deposition before
the trial court. When the trial court asked Kulkarni to clarify he explained
that Bade Saheb meant a superior officer of the police headquarter. The words
Bade Saheb, according to IU Khan, did not in any way refer to RK Anand.
And this was broadly his defence before the High Court.
Court dealing with IU Khan Defence:
The High Court did not accept his defence. The High Court held
that there was great familiarity between IU Khan, Kulkarni and RK Anand. In
this regard it observed as follows;
have 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".
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
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;
Main, vese meri K K Paul se baat hui hai, lekin maine abhi tak nahin bola hoo I
have not received summons at all. Woh mere ko bata dena".
This, according to the High Court, clearly showed that Kulkarni
referred to the Police Commissioner by his name and not by the expression `Bade
Saheb'. High Court further observed that for Kulkarni there was no reason to
meet the senior police officers particularly when he was dropped as prosecution
witness. There was nothing to suggest that while in Delhi Kulkarni used to meet
the senior police officers. On the other hand there was sufficient evidence to
show that he was very familiar with both IU Khan and RK Anand, had easy access
to both of them and used to frequently meet them. The High Court then took up
Kulkarni's affidavit that supported IU Khan's plea that by the expression he
had meant some senior police officer and not RK Anand and rejected it on a
number of grounds.
After giving the reasons for rejecting the stand of IU Khan the
High Court held that Bade Saheb was none else then RK Anand observing as
On the other hand, when we watched the recording of the events of 28th April,
2007 from the button camera, we noted that towards the end of the recording,
Mr. Deepak Verma asked Mr. Kulkarni about the identity of Bade Saheb and Mr.
Kulkarni responded by saying that it is Mr. Anand. There is no suggestion that
this part of the video recording is doctored or morphed......".
The High Court further observed that as IU Khan was fully aware
that Kulkarni, a prosecution witness was on highly familiar terms with a senior
defence lawyer RK Anand, he was obliged to inform the prosecution about it and
by not doing so he clearly failed in his duty as a prosecutor who was expected
to be fair not only to his client but also to the Court. His conduct was,
therefore, plainly unbecoming of a prosecutor. The High Court then proceeded to
consider whether the conduct of IU Khan amounted to a criminal contempt of
court. In this regard the Court refers to the conversation between IU Khan and
Kulkarni taking place outside the chamber in which a second meeting was fixed
up for the following evening with IU Khan giving Kulkarni the inducement of
good scotch whisky. From the exchange between the two the court inferred that
the extent of familiarity between the two was rather more than normal. 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, we have no option but to hold Mr.
Khan criminally liable, beyond a shadow of doubt, for actually interfering, if
not tending to interfere with the due course of the judicial proceeding, that
is the BMW case, and thereby actually interfering, if not tending to interfere
with the administration of justice in any other manner".
on behalf of IU Khan:
Mr. P. P. Rao, learned Senior Advocate appearing for IU Khan
mainly submitted that even if the sting recording is accepted as true, on the
basis of the exchange that took place between his client and Kulkarni it cannot
be said that he acted in a way or colluded in any action aimed at interfering
or tending to interfere with the prosecution of the accused in the BMW case or
interfering or tending to interfere with or obstructing or tending to obstruct
the administration of justice in any other manner. He further submitted that
the findings of the High Court were based on assumptions that were not only
completely unfounded but in respect of which the appellant was given no
opportunity to defend himself. The High Court held the appellant guilty of
committing criminal contempt of court referring to and relying upon certain
alleged facts and circumstances that did not form part of the notice and in
regard to which he was given no opportunity to defend himself. Mr. Rao
submitted that along with the notice issued by the High Court the appellant was
not given all the materials concerning his case and he was thus handicapped in
submitting his show cause. He further submitted that the High Court erroneously
placed the case of his client at par with RK Anand and convicted him because RK
Anand was found guilty even though the two cases were completely different. Mr.
Rao was also highly critical of the TV channel. He questioned the propriety of
the sting operation and the telecast of the sting programme concerning a
pending trial and involving a court witness without any information to, much
less permission by the trial court or even the High Court or its Chief Justice.
Mr. Rao submitted that when Kulkarni first approached Poonam Agarwal she
thought it imperative to first obtain the approval of her superiors before
embarking upon the project, but it did not occur to anyone, including her
superiors in the TV channel to obtain the permission or to even inform at least
the Chief Justice of the Delhi High Court 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.
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.
conduct quite improper:
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 him. The plea is not
borne out from the transcript and much less from the video recording. In the
video recording there is no trace of any fear or apprehension on his face or in
his gestures. He appears perfectly normal and natural sitting among his
colleagues (and may be one or two clients) and at no point the situation
appears to be out of his control. As a matter of fact, we feel constrained to
say that the plea is not quite worthy of a lawyer of IU Khan's standing and we
should have much appreciated had he simply taken the plea of an error of
discretion on his part.
Coming back to the exchange between IU Khan and Kulkarni, we
accept that the transcript of the exchange does not present the accurate
picture; listening to the live voices of the two (and others present in the
chamber) on the CD gives a more realistic idea of the meeting. We grant
everything that can be said in favour of IU Khan. The meeting took place
without any prior appointment from him. Kulkarni was able to reach him, unlike
RK Anand, without his permission or consent. IU Khan did not seem to be overly
enthused at the appearance of Kulkarni. Accosted by Kulkarni, he spoke to him
out of civility and mostly responded only to his questions and comments.
were others present in the chamber with whom he was equally engaged in
conversation. He also greeted someone else who came into the chamber far more
cheerfully than Kulkarni. But the undeniable fact remains that he was talking
to him all the time about the BMW trial and the related proceedings. Instead of
simply telling him to receive the summons and appear before the court as
directed, IU Khan gave reassurances to Kulkarni telling him about the revision
filed in the High Court against the trial court's order. He advised him to
relax saying that since he had dropped him (as a prosecution witness) the court
was no one to ask for his statement. The part of the exchange that took place
outside the chamber was worse. Inside the chamber, at one stage, IU Khan seemed
even dismissive of Kulkarni but on coming out he appeared quite anxious to fix
up another meeting with him at his residence giving promising good Scotch
whisky as inducement. IU Khan would be the first person to deny any friendship
or even a long acquaintanceship with Kulkarni. The only common factor between
them was the BMW case in which one was the prosecutor and 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.
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.
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 contempt of court can be
sustained against IU Khan.
The High Court held that there was an extraordinary degree of
familiarity between IU Khan, Kulkarni and RK Anand and each of them knew that
the other two were equally familiar with each other. So far as BMW trial is
concerned Kulkarni was a link between IU Khan and RK Anand.
by reason of his familiarity both with RK Anand and Kulkarni would also know
about the game that was afoot for the subversion of the trial. He failed to
inform the prosecution and the court about it and his omission to do so was
likely to have a very serious impact on the trial. He was, therefore, guilty of
actually interfering with due course of judicial proceeding, in the BMW case.
In the two sting recordings concerning RK Anand there are ample
references to IU Khan to suggest a high degree of familiarity between the
three. But in the sting on IU Khan the only words used by him that might
connect him to RK Anand through Kulkarni are `Bade Saheb'. If `Bade Saheb'
referred to RK Anand, the involvement of IU Khan needs no further proof. The
question, however, is whether that finding can be safely arrived at.
Now, what are the materials that might suggest that while asking
Kulkarni whether he had met Bade Saheb, IU Khan meant RK Anand. Apart from the
piece of conversation between Deepak Verma and Kulkarni when they were
returning after meeting with IU Khan, relied upon by the High Court, there is
another material, for whatever its worth, that doesn't find any mention in the
High Court judgment. It is Kulkarni's statement in his interview recorded at
the NDTV studio.
(IU Khan) directed me to Mr RK Anand is in that video you can find `Bade
Saheb'. He meant that Mr. RK Anand."
We mention it only because it is one of the materials lying on the
record. Not that we rely on it in the least. Having known the conduct of
Kulkarni throughout this episode as discussed in detail in the earlier part of
the judgment it is impossible to rely on this statement and we don't even fault
the High Court for not taking any note of it.
The only other positive material in this regard is the one referred
to by the High Court.
Court observed that towards the end of the recording by the button camera,
"Mr. Deepak Verma asked Mr. Kulkarni about the identity of Bade 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:
BETWEEN KULKARNI & DEEPAK VERMA:
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?"
Verma: Haan Kulkarni: Ab dekho kal you will get [unclear..] you what you want
Deepak Verma: Kal aap Bade Saheb se milne ja rahe hain? Kulkani: Na, Haan unke
ghar pe. No, you don't have to come. You just come and stay outside.
na? [unclear... ] Haan ab to aap ke samne hua sab kucchh Deepak Verma: Bade
Saheb woh hai, Anand? Kulkarni: Hmm.
some auto/heavy vehicle engine Deepak Verma: [Unclear...] Ek baar iska
Photograph lein....Iska photograph aaya ki nahin aaya? Kulkarni: Aaya. Aaya,
Pukka trail hoga hamara. Hundred percent Tail hoga.
Verma: Police Waale ko kaise kah raha tha who? Gaadi Dilwao yaar..
From the manner of speaking Kulkarni appeared to be giving the
impression that everything went off according to the plan. He also tended to be
slightly melodramatic. (He would not go to the car directly because they were
bound to be followed!) 125. Now, while examining what Kulkarni understood or
rather what he wanted Deepak Verma to believe what was meant by `Bade Saheb' it
is necessary to bear in mind that the whole object of the sting was to uncover
the alleged unholy alliance between the defence and the prosecution. It was
based on the premise that the prosecution was colluding with the defence in the
effort to save the accused in the BMW case. In that situation for Kulkarni, who
for his own reasons was anxious to get NDTV's help for doing the sting, it was
natural to find out and show to Deepak Verma some link between IU Khan and RK
Anand irrespective of whether or not there was, in reality, any link between
the two. There is no way to find out whether Kulkarni really believed that by
`Bade Saheb' IU Khan meant RK Anand (Like everything else even on this issue he
changed his stand from time to time!) or he just wanted Deepak Verma to believe
so. But even if Kulkarni really understood Bade Saheb to mean RK Anand, that
would not change the position much. For our purpose it is not important what
Kulkarni or Deepak Verma or any one else understood (truthfully or otherwise!)
by that expression. One may use an expression to mean a certain thing but to
the listener it may mean something quite different. What is important here is
to judge what IU Khan meant when he used that expression. In our view, on the
basis of the exchange between Kulkarni and Deepak Verma, it will be highly
unsafe to hold that when IU Khan asked Kulkarni whether he had met "Bade
Saheb' he meant RK Anand.
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:
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;
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. Learned counsel for Mr. Khan, however, did not
produce any material to support the last submission".
Mr. P. P. Rao submitted that the approach of the High Court was
quite unfair. The proceeding before the High Court was not in the nature of a suit
or a criminal trial. In response to the notice issued by the Court the
appellant had made a positive statement in his reply affidavit. The statement
was not formally traversed by anyone. There was, therefore, no reason for the
appellant to assume that he would be required to produce evidence in support of
the statement. In case the High Court felt the need for some evidence in
support of the averment it should have at least made it known to the appellant.
But the High Court without giving any inkling to the appellant rejected the
plea in the final judgment. The appellant was thus clearly denied a proper
opportunity to defend himself. We find that the submission is not without
substance. The proceeding before the High Court was under the Contempt of Courts
Act and the High Court was not following any well known and well established
format. In that situation it was only fair to give notice to the proceedees to
substantiate the pleas taken in the reply affidavit by leading proper evidence.
It must, therefore be held that the High Court rejected a material plea raised
on behalf of the IU Khan without giving him any opportunity to substantiate it.
Further, as noticed above, the High Court, for arriving at the
finding that there was a high degree of familiarity among IU Khan, Kulkarni and
RK Anand has repeatedly used the transcripts of the meetings between Kulkarni
and RK Anand. It is indeed true that in the exchanges between Kulkarni and RK
Anand there are many references to IU Khan. That may give rise of a strong
suspicion, of a common connection between the three. But having regard to the
charge of criminal contempt any suspicion howsoever strong cannot take the
place of proof and we don't feel it wholly prudent to rely upon the exchanges
between Kulkarni and RK Anand to record a finding against IU Khan.
Further, according to the High Court, the essence of culpability
of IU Khan was his omission to inform the prosecution and the Court "that
one of its witnesses was more than an acquaintance of defence lawyer".
Mr. P. P. Rao submitted that the High Court convicted the
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.
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 entitled to the benefit of doubt.
FOLLOWED BY THE HIGH COURT:
A lot has been argued about the procedure followed by the High
Court in dealing with the matter. On behalf of RK Anand it was strongly
contended that by only asking for the copies of the original sting recordings
and allowing the original microchips and the magnetic tapes to be retained in
the custody of NDTV the High Court committed a serious and fatal lapse. Mr.
Gopal Subramanium also took the view that though the final judgment passed by
the High Court was faultless, it was nevertheless an error on its part to leave
the original sting recordings in the safe custody of the TV channel. On
principle and as a matter of proper procedure, the Court, at the first
instance, ought to have taken in its custody all the original electronic
materials concerning the stings.
At first the direction of the High Court leaving the microchips
containing the original sting recordings and the magnetic tapes with the TV
channel indeed appears to be somewhat strange and uncommon but a moment's
thought would show the rationale behind it. If the recordings on the microchips
were fake from the start or if the microchips were morphed before notice was
issued to the TV channel, those would come to the court in that condition and
in that case the question whether the microchips were genuine or fake/morphed
would be another issue. But once the High Court obtained their copies there was
no possibility of any tampering with the microchips from that stage. Moreover,
the High Court might have felt that the TV channel with its well equipped
studio/laboratory would be a much better place for the handling and
conservation of such electronic articles than the High Court Registry. On the
facts of the case, therefore, there was no lapse on the part of the High Court
in leaving the microchips in the safe custody of the TV channel and in any
event it does not have any bearing on the final decision of the case.
However, what we find completely inexplicable is why, at least at
the beginning of the proceeding, the High Court did not put NDTV, along with
the two appellants, in the array of contemnors. Looking back at the matter (now
that we have on the record before us the appellants' affidavits in reply to the
notice issued by the High Court as well as their first response to the telecast
in the form 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.
perhaps there would have been no scope for the grievance that the High Court
put the TV channel on the complainant's seat. And then perhaps the TV Channel
too would have conducted itself in a more careful manner and the lapses as
indicated above in the case of IU Khan might not have occurred.
PUNISHMENT: PROHIBITION AGAINST APPEARING IN COURTS
We were also addressed on the validity of the High Court's
direction prohibiting the two appellants from appearing before the High Court
and the courts subordinate to it for a period of four months. Though by the
time the appeals were taken up for hearing the period of four months was over,
Mr. Altaf Ahmed contended that the High Court's direction was beyond its
competence and authority. In a proceeding of contempt punishment could only be
awarded as provided under the Contempt of Courts Act, though in a given case
the High Court could debar the contemnor from appearing in court till he purged
himself of the contempt. He further submitted that professional misconduct is a
subject specifically dealt with under the Advocates Act and the authority to
take action against a lawyer for any professional misconduct vests exclusively
in the State Bar Council, where he may be enrolled, and the Bar Council of
India. The Counsel further submitted that a High Court could frame rules under
section 34 of the Advocates Act laying down the conditions subject to which an
advocate would be permitted to practise in the High Court and the courts
subordinate to it and such rules may contain a provision that an advocate
convicted of contempt of court would be barred from appearing before it or
before the subordinate courts for a specified period. But so far the Delhi High
Court has not framed any rules under section 34 of the Act. According to him,
therefore, the punishment awarded to the appellant by the High Court had no
Mr. Nageshwar Rao learned Senior Advocate assisting the Court as
amicus shared the same view. Mr. Rao submitted that the direction given by the
High Court was beyond its jurisdiction. In a proceeding of contempt the High
Court could only impose a punishment as provided under section 12 of the Contempt of Courts
Act, 1971. The High Court was bound by the provisions
of the Contempt of Courts Act and it was not open to it to innovate any new kind of
punishment in exercise of its powers under Article 215 of the Constitution or
its inherent powers.
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 till the
contemnor purged himself of the contempt. But it cannot assume the authority
and the power statutorily vested in the Bar Council.
Mr. Gopal Subramanium the other amicus, however, approached the
issue in a slightly different manner and took the middle ground. Mr.
Subramanium submitted that the power to suspend the licence of a lawyer for a
reason that may constitute contempt of court and at the same time may also
amount to professional misconduct is a power to be exercised by the
disciplinary authority i.e. the Disciplinary Committee of the State Bar Council
where the concerned advocate is registered or the Bar Council of India. The
Supreme Court has held that even it, in exercise of its powers under Article
142, cannot override statutory provisions and, assuming the position of the
Disciplinary Committee, suspend the licence of a lawyer. Such a course cannot
be followed even by taking recourse to the appellate powers of the Supreme
Court under section 38 of the Advocates Act while dealing
with a case of contempt of court (and not an appeal relating to professional
misconduct as such). But approaching the matter from a different angle Mr.
Subramanium submitted, it is, however, open to the High Court to make rules
regulating the appearance of advocates in courts. He further submitted that
although the Delhi High Court has not framed any specific rules regulating the
appearance of advocates, it is settled law that power vested in an authority
would not cease to exist merely because rules prescribing the manner of
exercise of power have not been framed.
The contention that the direction debarring a lawyer from
appearing before it or in courts subordinate to it is beyond the jurisdiction
of the High Court is based on the premise that the bar is akin to revocation/suspension
of the lawyer's licence which is a punishment for professional misconduct that
can only be inflicted by the Bar Council after following the procedure
prescribed under the Advocates
Act. The contention finds support from the
Constitution Bench decision of this Court in Supreme Court Bar Association vs.
Union of India, (1998) 4 SSC 409. In paragraph 37 of the decision the Court
observed and held as under:
nature and types of punishment which a court of record can impose in a case of
under the common law have now been specifically incorporated 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."
paragraphs 39 & 40 it observed:
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."
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 commission of contempt of
court. There is no cause of professional misconduct, properly so called,
pending before the Court. This Court, therefore, in exercise of its
jurisdiction under Article 129 cannot take over the jurisdiction of the
Disciplinary Committee of the Bar Council of the State or the Bar Council of
India to punish an advocate by suspending his licence, which punishment can
only be imposed after a finding of "professional misconduct" is
recorded in the manner prescribed under the Advocates Act and the Rules framed thereunder."
Paragraph 57 it observed:
57. In a
given case, an advocate found guilty of committing contempt of court may also
be guilty of committing "professional misconduct", depending upon the
gravity or nature of his contumacious conduct, but the two jurisdictions are
separate and distinct and exercisable by different forums by following separate
and distinct procedures. The power to punish an advocate by suspending his
licence or by removal of his name from the roll of the State Bar Council for
proven professional misconduct vests exclusively in the statutory authorities
created under the Advocates
Act, 1961, while the jurisdiction to punish him for
committing contempt of court vests exclusively in the courts."
paragraph 80 it observed:
In a given case it may be possible for this Court or the High Court, to prevent
the contemnor advocate to appear before it till he purges himself of the
contempt but that is much different from suspending or revoking his licence or
debarring him to practise as an advocate. In a case of contemptuous,
contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this
Court possesses jurisdiction, under the Supreme Court Rules, itself, to
withdraw his privilege to practice as an Advocate-on- Record because that
privilege is conferred by this Court and the power to grant the privilege includes
the power to revoke or suspend it. The withdrawal of that privilege, however,
does not amount to suspending or revoking his licence to practice as an
advocate in other courts or tribunals."
The matter, however, did not stop at Supreme Court Bar Association.
In Pravin C Shah vs. K. A. Mohd. Ali and Another, (2001) 8 SCC 650, this Court
considered the case of a lawyer who was found guilty of contempt of court and
as a consequence was sought to be debarred from appearing 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:
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
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:
an advocate was punished for contempt of court can he appear thereafter as a
counsel in the courts, unless he purges himself of such contempt? If he cannot,
then what is the way he can purge himself of such contempt?"
answered the question in paragraphs 27, 28 and 31 of the judgment as follows:
We cannot therefore approve the view that merely undergoing the penalty imposed
on a contemnor is sufficient to complete the process of purging himself of the
contempt, particularly in a case where the contemnor is convicted of criminal
contempt. The danger in giving accord to the said view of the learned Single
Judge in the aforesaid decision is that if a contemnor is sentenced to a fine
he can immediately pay it and continue to commit contempt in the same court,
and then again pay the fine and persist with his contemptuous conduct. There
must be something more to be done to get oneself purged of the contempt when it
is a case of criminal contempt."
The Disciplinary Committee of the Bar Council of India highlighted the absence
of any mode of purging oneself of the guilt in any of the Rules as a reason for
not following the interdict contained in Rule 11. Merely because the Rules did
not prescribe the mode of purging oneself of the guilt it does not mean that
one cannot purge the guilt at all. The first thing to be done in that direction
when a contemnor is found guilty of a criminal contempt is to implant or infuse
in his own mind real remorse about his conduct which the court found to have
amounted to contempt of court. Next step is to seek pardon from the court
concerned for what he did on the ground that he really and genuinely repented
and that he has resolved not to commit any such act in future. It is not enough
that he tenders an apology. The apology tendered should impress the court to be
genuine and sincere. If the court, on being impressed of his genuineness,
accepts the apology then it could be said the contemnor has purged himself of
Thus a mere statement made by a contemnor before court that he apologises is
hardly enough to amount to purging himself of the contempt. The court must be
satisfied of the genuineness of the apology. If the court is so satisfied and
on its basis accepts the apology as genuine the court has to make an order
holding that the contemnor has purged himself of the contempt. Till such an
order is passed by the court the delinquent advocate would continue to be under
the spell of the interdict contained in Rule 11 of the Rules."
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:
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
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 subordinate thereto. Many courts have framed rules in
this behalf. Such a rule would be valid and binding on all. Let the Bar take
note that unless self-restraint is exercised, courts may now have to consider
framing specific rules debarring advocates, guilty of contempt and/or
unprofessional or unbecoming conduct, from appearing before the courts. Such a
rule if framed would not have anything to do with the disciplinary jurisdiction
of the Bar Councils. It would be concerning the dignity and orderly functioning
of the courts. The right of the advocate to practise envelopes a lot of acts to
be performed by him in discharge of his professional duties. Apart from
appearing in the courts he can be consulted by his clients, he can give his
legal opinion whenever sought for, he can draft instruments, pleadings,
affidavits or any other documents, he can participate in any conference
involving legal discussions, he can work in any office or firm as a legal
officer, he can appear for his clients before an arbitrator or arbitrators etc.
Such a rule would have nothing to do with all the acts done by an advocate
during his practice. He may even file vakalat on behalf of a client event
though his appearance inside the court is not permitted.
in court is a matter concerning the court and hence the Bar Council cannot
claim that what should happen inside the court could also be regulated by them
in exercise of their disciplinary powers. The right to practise, no doubt, is
genus of which the right to appeal and conduct cases in the court may be a
specie. But the right to appear and conduct cases in the court is a matter on
which the court must and does have major supervisory and controlling power.
Hence courts cannot be and are not divested of control or supervision of
conduct in court merely because it may involve the right of an advocate. A rule
can stipulate that a person who has committed contempt of court or has behaved
unprofessionally and in an unbecoming manner will not have the right to
continue to appear and plead and conduct cases in courts. The Bar Councils
cannot overrule such a regulation concerning the orderly conduct of court
proceedings. On the contrary, it will be their duty to see that such a rule is
strictly abided by. Courts of law are structured in such a design as to evoke
respect and reverence to the majesty of law and justice. The machinery 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 including inter
alia rules as to persons practising before this Court. Similarly Section 34 of
the Advocates Act empowers High Courts to frame rules, inter alia to lay down
conditions on which an advocate shall be permitted to practice in courts.
Article 145 of the Constitution of India and Section 34 of the Advocates Act clearly show that there is no absolute right to an
advocate to appear in a court. An advocate appears in a Court to such
conditions as are laid down by the Court. It must be remembered that Section 30
has not been brought into force and this also shows that there is no absolute
right to appear in a court. Even if Section 30 were to be brought into force
control of proceedings in a court will always remain with the court. Thus even
then the right to appear in court will be subject to complying with conditions
laid down by courts just as practice outside courts would be subject to
conditions laid down by the Bar Council of India. There is thus no conflict or
clash between other provisions of the Advocates Act on the one hand and Section 34 or Article 145 Constitution
of Indian on the other."
In both Pravin C. Shah and Ex. Capt. Harish Uppal the earlier
Constitution Bench decision was extensively considered. The decision in Ex.
Capt. Harish Uppal was later followed in a three judge Bench decision in Bar
Council of India vs. The High Court of Kerala, (2004) 6 SCC 311.
In Supreme Court Bar Association the direction prohibiting an
advocate from appearing in court for a specified period was viewed as a total
and complete denial of his right to practise law and the bar was considered as
a punishment inflicted on him. 1 In Ex. Capt. Harish Uppal it was seen not as
punishment for professional misconduct but as a measure necessary to regulate
the court's proceedings and to maintain the dignity and orderly functioning of
the courts. We may respectfully add that in a given case a direction
disallowing an advocate who is convicted of criminal contempt from appearing in
court may not only be a measure to maintain the dignity and 1 Though in
Paragraph 80 of the decision, as seen earlier there is an observation that in a
given case it might be possible for this court or the High Court to prevent the
contemnor advocate to appear before it till he purge himself of the contempt.
functioning of the courts but may become necessary 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
constituting a substantive offence and contempt of court and professional
misconduct. In such a situation the court does not only have the right but it
also has the obligation cast upon it to protect itself and save the purity of
its proceedings from being polluted in any way and to that end bar the
malefactor from appearing before the courts for an appropriate period of time.
It is already explained in Ex. Captain Harish Uppal that a direction of this
kind by the Court cannot be equated with punishment for professional
the prohibition against appearance in courts does not affect the right of the
concerned lawyer to carry on his legal practice in other ways as indicated in
We respectfully submit that the decision in Ex-Capt. Harish Uppal
vs. Union of India places the issue in correct perspective and must be followed
to answer the question at issue before us.
Lest we are misunderstood it needs to be made clear that the
occasion to take recourse to the extreme step of debarring an advocate from
appearing in court should arise very rarely and only as a measure of last
resort in cases where the wrong doer advocate does not at all appear to be
genuinely contrite and remorseful for his act/conduct, but on the contrary
shows a tendency to repeat or perpetuate the wrong act(s).
Ideally every High Court should have rules framed under section 34
of the Advocates Act in order to meet with such eventualities but even in the
absence of the Rule the High Court cannot be held to be helpless against such
threats. In a matter as fundamental and grave as preserving the purity of
judicial proceedings, the High Court would be free to exercise the powers
vested in it under section 34 of the Advocates Act
notwithstanding the fact that Rules prescribing the manner of exercise of power
have not been framed. But in the absence of statutory Rules providing for such
a course an advocate facing the charge of contempt would normally think of only
the punishments specified under section 12 of the Contempt of Courts Act. He may not even imagine that at the end of the proceeding
he might end up being debarred from appearing before the court. The rules of
natural justice, therefore, demand that before passing an order debarring an
advocate from appearing in courts he must be clearly told that his alleged
conduct or actions are such that if 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.
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
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.
extent the direction given by the High Court was not in conformity with the
principles of natural justice. But as to the consequence of that we shall deal
with in due course.
QUESTION OF SENTENCE:
Having regard to the misdeeds of which RK Anand has been found
guilty, the punishment given to him by the High Court can only be regarded as
nominal. We feel that the leniency shown by the High Court in meting out the
punishment was qute misplaced. And the view is greatly reinforced if one looks
at the contemnor's conduct before the High Court. As we shall see presently,
before the High Court the contemnor took a defiant stand and constantly tried
to obstruct the proceedings.
DIVERSIONARY & INTIMIDATORY TACTICS IN THE PROCEEDING:
Even as contempt notices were issued by the High Court, or even
before it, some diversionary and even intimidatory tactics were employed to
stonewall the proceeding initiated by it.
The first in the series was an affidavit filed on August 6, 2007
by Kulkarni in regard to the stings done by him. The affidavit was not called
for by the Court and it was filed quite gratuitously. It was a jumble of
non-sense, half truths and lies. Kulkarni made all conceivable and even some
inconceivable allegations against NDTV in general and Poonam Agarwal in
that Poonam Agarwal had recorded his first interview on April 25, 2003 and
thereafter on several other dates till the last one in the last week of May
before the telecast. It is not clear on whose behalf Poonam Agarwal would take
his earlier interviews because she had joined NDTV only two years prior to July
2007. He then alleged that Poonam Agarwal subjected him to "Gobel's
technique" (sic. Goebbels's) to make him `illicit' (sic. elicit) certain
answers `to' (sic. from) RK Anand and IU Khan in a particular manner. What is
of significance in Kulkarni's affidavit, however, is that it anticipated what
in the sting recordings might prove fatal for RK Anand and IU Khan and tried to
do the ground work for their defence. In regard to his meeting with IU Khan,
Kulkarni said that he met and spoke to him in the manner directed by Poonam
Agarwal. He further said on affidavit that when IU Khan asked him if he had met
`Bade Saheb' he implied some senior police official but it was Poonam Agarwal
who forced him to say that IU 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.
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 unable to believe that the manner in which Kulkarni's affidavit fore-
shadows the proceedees defence was simply coincidental. It does not require
much imagination to see that Kulkarni had once again switched over sides and he
had joined hands with those whom he had earlier tried to trap in the stings.
In one of the paragraphs of the affidavit there is a ludicrous
description of his meeting with Lovely. It is stated that despite persistent
request by him for a meeting there was no positive response from RK Anand.
Then, "suddenly a Sardar Ji came and started talking with me. In his
pocket I saw some flash light beeping which alerted me that I was trapped. I
was upset and wanted to convey all the facts to Hon'ble Court but Ms. Poonam
Agarwal prevailed over me and dissuaded me to do the same". Even this
apparently absurd story was not without purpose; its object was to provide for
the existence of another recording, apart from his own sting, of his meeting
The recording, by Lovely, of their meeting was the second
diversionary attempt in the proceeding before the High Court.
audio recording of the meeting between Kulkarni & Lovely:
The High Court registry received an audio cassette along with a
letter from one Sunil Garg. In the letter it was stated that the cassette had
the recording of some conversation between Lovely and Kulkarni. The cassette
proved to be completely blank. Then on notice being issued to him Garg appeared
in Court and made a statement on oath. He said that Kulbir Singh alias Lovely
was his friend. Shortly before his death he had come to him and handed over to
him to two audio cassettes saying that those contained the recordings of his
conversation with Kulkarni. He had earlier sent one of the two cassettes
without playing it on the recorder. He later came to learn from the newspaper
reports the cassette was blank. He then played the other cassette and found it
had the recording of some conversation between his friend Lovely and someone
else. He recognised the voice of his friend Lovely. He submitted the other
cassette in the High Court.
We would have completely ignored Kulkarni's affidavit and Garg's
audio cassettes as foolish and desperate attempts to create some defence, not
worthy of any attention. But there is something more to come that is impossible
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
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.
The recusal petition was primarily based on the plea that he had
reasonable apprehension of bias, for Sarin J. was personally hostile to him.
The self perceived hostility between the applicant (RK Anand) and Sarin J.
dated back to 1984 when he was still a lawyer. They had a quarrel then that had
led to an exchange of verbal abuses. In 1988 Sarin J. (still a lawyer), in his
position as the Vice President of the Delhi High Court Bar Association, had
moved a resolution before the Association's executive committee opposing any
proposal for the applicant's nomination for appointment as a judge of the Delhi
High Court. Sarin J., as a lawyer, had among his clients, the magazine, `India
Today' (Living Media) and the owners of NDTV were closely associated with
`India Today'. Sarin J., as an advocate had done the cases of the applicant's
brothers whom he had referred to him. It was stated that the judge, thus, might
have been privy to some family gossip causing him to be prejudicially disposed
towards the applicant. The applicant had earlier sent a complaint to the Prime
Minister against the Law Minister, who was one of his (applicant's) political
rival. In the complaint, apart from the Law Minister, allegations were also
made against the then Chief Justice of the High Court. And in that connection
it was alleged that the Chief Justice had around him a coterie of Judges that
included Sarin J. On the arrest of a sitting judge of the Delhi High Court by
the CBI the media had gone to Sarin J. for his comments and even this, it was
stated, might lead him to harbour ill will against the applicant. In a civil
case for damages arising from the BMW case the matter was settled between the
parties (one of the victims of the accident on the one side and the family of
the accused Sanjeev Nanda on the other). But Sarin J. who was a member of the
bench before which the matter came up for recording the settlement, did not
allow it to be said in the compromise petition that the accident was caused by
a truck and not by any car. It showed, according to the applicant, that Sarin
J. had some pre-conceived notion that the accident was caused by the car driven
by Sanjeev Nanda. The bench had appointed as amicus curiae a lawyer personally
hostile to the applicant. And lastly the applicant had moved the Chief Justice
on the administrative side to assign the matter to some other bench.
In one glance, 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 resolution against RK Anand
too and was given the permission to do so by the Executive Committee. But he
did not actually move any resolution and later said that he did not have
necessary proof in support of the allegations and the matter was dropped. As
regards the complaint to the Prime Minister in which Sarin J. was said to be a
member of the alleged coterie around the Chief Justice, Sarin J. commented that
until a copy of the complaint was filed with the recusal application he was not
even aware of it. Having thus dealt with the rest of the allegations made in
the recusal application, the order, towards its end, said something which alone
was sufficient to reject the request for recusal. It was pointed out that the
applicant had a flourishing practice; he had been frequently appearing in the
court of Sarin J. ever since he was appointed as a judge and for the past
twelve years was getting orders, both favourable and unfavourable, for his
different clients. He never complained of any unfair treatment by Sarin J. but
recalled his old `hostility' with the judge only after the notice was issued to
order the concerned judge further observed:
path of recusal is very often a convenient and a soft option. This is
especially so since a Judge really has no vested interest in doing a particular
matter. However, the oath of office taken under Article 219 of the Constitution
of India enjoins the Judge to duly and faithfully and to the best of his
knowledge and judgment, perform the duties of office without fear or favour
affection or ill will while upholding the constitution and the laws. In a case,
where unfounded and motivated allegations of bias are sought to be made with a
view of forum hunting / Bench preference or brow-beating the Court, then,
succumbing to such a pressure would tantamount to not fulfilling the oath of
The above passage, in our view, correctly sums up what should be
the Court's response in the face of a request for recusal made with the intent
to intimidate the court or to get better of an `inconvenient' judge or to
obfuscate the issues or to cause obstruction and delay the proceedings or in
any other way frustrate or obstruct the course of justice. We are constrained
to pause here for a moment and to express grave concern over the fact that
lately such tendencies and practices are on the increase. 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.
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." Having passed the brief
separate order he declined to take any further part in the proceeding.
This development provided RK Anand with another opportunity to
carry on his offensive further. He unhesitatingly availed of the opportunity
and filed an application (Crl. M. 11677/2007) for clarification/review of the
order dated October 4, 2007 dismissing his recusal petition. Review was sought
primarily on the ground that the order of Sarin J. was not the order by the
bench since the other judge had declined to concur with him. After the other
judge opted out of the bench, the Chief Justice put Lokur J. in his place.
Consequently, the clarification/review application came before Sarin J.,
sitting with Lokur J., and the first thing this bench was told, and with some
assertiveness too, was that it was not competent to hear the application and it
could only be heard by the previous bench as it arose from an order passed by
The clarification/review application was rejected by a long order
dated November 29, 2007 authored by Lokur J. As we shall see, henceforth all
substantive orders in the proceeding were written, not by the presiding judge,
but by Lokur J. and the significance of it is not lost on us. The application
for recusal though rejected was not completely unsuccessful. It left a lasting
shadow on the proceeding.
Here, it may be noted that apart from filing an application for its
clarification/review before the High Court, the order rejecting the recusal
application was also sought to be challenged before this Court by filing SLP
(Crl) No. 7374 of 2007. The SLP was, however, withdrawn on December 14, 2007.
Nevertheless, the challenge to the High Court order rejecting the recusal
application is still not given up and paragraphs H & I of the Grounds in
the present Memo of appeal expressly seek to assail that order.
Both Mr. Salve and Mr. Subramanium strongly submitted that the
appellant had plainly no respect for the court or the court proceedings. Mr.
Salve submitted that the recusal application was a brazen attempt to browbeat
the High Court and in that attempt the appellant succeeded to a large extent
since the prohibition to appear before the courts for a period of only four
months could only be considered as a token punishment having regard to the
gravity of his conduct. Mr. Subramanium also felt strongly about the 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.
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 appellant has established himself as a
person who needs to be kept away from the portals of the court for a longer
time. The notice would therefore require him to show-cause why the punishment
awarded to him should not be enhanced as provided under section 12 of the Contempt of Courts
Act. He would additionally show-cause why he should
not be debarred from appearing in courts for a longer period. The second part
of the notice would also cure the defect in the High Court order in debarring
the appellant from appearing in courts without giving any specific notice in
that regard as held in the earlier part of the judgment.
We have so far been considering the two appeals proper. We now
proceed to examine some other important issues arising from the case.
NDTV came under heavy attack from practically all sides for
carrying out the stings and airing the programme based on it. On behalf of RK
Anand the sting programme was called malicious and motivated, aimed at defaming
him personally. Mr. P P Rao appearing for IU Khan questioned the propriety of
the stings and the repeated telecast of the sting programme concerning a
pending trial and involving a court witness. Mr. Rao submitted that before
taking up the sting operations, fraught with highly sinister implications, the
TV channel should have informed the trial court and obtained its permission. If
for any reason it was not possible to inform the trial judge then permission
for the stings should have been taken from the Chief Justice of the Delhi High
was the duty of that TV channel to place the sting materials before the court
before telecasting any programme on that basis.
Mr. Gopal Subramanium submitted that this case raised the
important issue regarding the nature and extent of the right of the media to
deal with a pending trial. He submitted that a sting operation was, by its
nature, based on deception and hence, overriding public interest alone might
justify its publication/telecast. Further, since the operation was based on
deception the onus would be heavy on the person behind the sting and
publication/telecast of the sting materials to establish his/her bona fide,
apart from the genuineness and truthfulness of the sting materials. In regard
to sting operations bona fide could not be assumed. In this case, therefore, it
was the duty of the High Court 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.
Counsel submitted that a question may arise whether NDTV was justified in
telecasting the programme based on the sting when they were not in a position
to vouch for Kulkarni's character.
however, submitted that the TV channel must at least be given credit for
transparency - it made a public disclosure, in the same telecast, that (a)
Kulkarni had withdrawn his consent for the telecast;
did not know if any money had in fact changed hands, and (c) it could not vouch
for Kulkarni's character. It also gave the contemnors a chance to state their
version of the story. In conclusion Mr Subramanium submitted that it would be
difficult to conclude that NDTV was guilty of contempt or of conducting a media
trial although the "slant in the telecast was regrettable overreach."
The other amicus Mr. N. Rao was more severe in his criticism of
the telecast of the sting programme by NDTV. He maintained that NDTV was
equally guilty of contempt of court, though under a different provision of law.
Mr. Rao submitted that the programme was an instance of, what is commonly
called, `trial by media' and it was telecast while the criminal trial was going
on. He submitted that in our system of law there was no place for trial by
media in a sub-judice matter. Mr. Rao submitted that freedom of speech and
expression, subject of course to reasonable restrictions, was indeed one of the
most important rights guaranteed by the Constitution of India. But the press or
the electronic media did not enjoy any right(s) superior to an individual
citizen. Further, the right of free and fair trial was of far greater
importance and in case of any conflict between free speech and fair trial the
latter must always get precedence. Mr. Rao submitted that though the law
normally did not permit any pre-censorship of a media report concerning an
ongoing criminal trial or sub-judice matter, any person publishing the report
in contravention of the provisions of law would certainly make himself liable
to the proceeding of contempt. Mr. Rao further submitted that the immunity
provided under section 3 (3) of the Contempt of Courts Act was not available to the TV channel in terms of proviso (ii)
Explanation (B) to sub-section (3) and thus the telecast of the sting programme
by NDTV clearly fell in the prohibited zone under the Act. He further submitted
that in such an event, a plea 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.
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:
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 substantially
interferes, or tends substantially to interfere with the due course of justice;
court may permit, in any proceeding for contempt of court, justification by
truth as a valid defence if it is satisfied that it is in public interest and
the request for invoking the said defence is bona fide."
Mr. Salve submitted that in a situation of this kind two competing
public interests are likely to arise; one, purity of trial and the other public
reporting of something concerning the conduct of a trial (that may even have
the tendency to impinge on the proceedings) where the trial, for any reason,
can be considered as a matter of public concern. With regard to the case in hand
Mr. Salve submitted that in the sting programmes there was nothing to influence
the outcome of the BMW trial. But even if the telecast had any potential to
influence the trial proceedings that risk was far outweighed by the public good
served by the programme. He further submitted that in a case where two
important considerations arise, vying with each other, the court is the final
arbiter to judge whether or not the publication or telecast is in larger public
interest; how far, if at all, it interferes or tends to interfere with or
obstructs or tends to obstruct the course of justice and on which side the
balance tilts. In support of his submission he relied upon a decision of the
House of Lords in Re Lonrho plc and others,  2 All ER 1100 paragraphs 7.2
and 7.3 at 1116.
We have already dealt with the allegations made on behalf of RK
Anand while considering his appeal earlier in this judgment and we find no
substance in those allegations.
of pending trial:
We are also unable to agree with the submission made by Mr. P. P.
Rao that the TV channel should have carried out the stings only after obtaining
the permission of the trial court or the Chief Justice of the Delhi High Court
and should have submitted the sting materials to the court before its telecast.
Such a course would not be an exercise in journalism but in that case the media
would be acting as some sort of special vigilance agency for the court. On
little consideration the idea appears to be quite repugnant both from the
points of view of the court and the media. It would be a sad day for the court
to employ the media for setting its own house in order; and 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.
programme whether trial by media??
The submissions of Mr. N. Rao are based on two premises: one, the
sting programme telecast by NDTV was of the genre, `trial by media' and two,
the programme interfered or tended to interfere with or obstructed or tended to
obstruct the proceedings of the BMW trial that was going on at the time of the
telecast. If the two premises are correct then the rest of the submissions
would logically follow. But are the two premises correct? What is trial by
media? The expression `trial by media' is defined to mean:
impact of television and newspaper coverage on a person's reputation by
creating a widespread perception of guilt regardless of any verdict in a court
of law. During high publicity court cases, the media are often accused of
provoking an atmosphere of public hysteria akin to a lynch mob which not only
makes a fair trial nearly impossible but means that, regardless of the result
of the trial, in public perception the accused is already held guilty and would
not be able to live the rest of their life without intense public
In light of the above it can hardly be said that the sting
programme telecast by NDTV was a media trial. Leaving aside some stray remarks
or comments by the anchors or the interviewees, the programme showed some
people trying to subvert the BMW trial and the state of the criminal
administration of justice in the country (as perceived by the TV channel and
the interviewees). There was nothing in the programme to suggest that the
accused in the BMW case were guilty or innocent. The programme was not about
the accused but it was mainly about two lawyers representing the two sides and
one of the witnesses in the case. It indeed made serious allegations against
the two lawyers. The allegations, insofar as RK Anand is concerned, stand
established after strict scrutiny by the High Court and this Court. Insofar as
IU Khan is concerned, though this Court held that his conduct did not
constitute criminal contempt of court, nonetheless allegations against him too
are established to the extent that his conduct has been found to be
inappropriate for a Special Prosecutor. In regard to the witness the comments
and remarks made in the telecast were never subject to a judicial scrutiny but
those too are broadly in conformity with the materials on the court's record.
We are thus clearly of the view that the sting programme telecast by NDTV
cannot be described as a piece of trial by media.
& telecast of sting programmes not constituting criminal contempt:
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:
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.
(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), if at the time of distribution he had no reasonable grounds
for believing that it contained or was likely to contain any such matter as
that this sub-section shall not apply in respect of the distribution of- (i)
any publication which is a book or paper printed or published otherwise than in
conformity with the rules contained in section 3 of the Press and Registration
of Books Act, 1867 (25 of 1867);
publication which is a newspaper published otherwise than in conformity with
the rules contained in section 5 of the said Act.
For the purposes of this section, a judicial proceeding- (a) is said to be
pending- (A) xxx (B) in the case of a criminal proceeding under the Code of
Criminal Procedure, 1898 ( 5 of 1898), or any other law- (i) where it relates
to the commission of an offence, when the charge-sheet or challan is filed, or
when the court issues summons or warrant, as the case may be, against the
accused, and (ii) in any other case, when the court takes cognizance of the
matter to which the proceeding relates, and xxx (b) xxxx"
Section 5 provides that a fair criticism of a judicial act
concerning any case which has been heard and finally decided would not
Sub-section (1) of section 3 provides immunity to a publisher of
any matter which interferes or tends to interfere with, or obstructs or tends
to obstruct the course of justice in any civil or criminal proceeding if he
reasonably believed that there was no proceeding pending. A sub- section (3)
deal with distribution of the publication as mentioned in sub-section (1) and
provides immunity to the distributor if he reasonably believed that the
publication did not contain any matter which interfered or tended to interfere
with, or obstructed or tended to obstruct the course of justice in any civil or
criminal proceeding. The immunity provided under sub-section (3) is subject to
the exceptions as stated in the proviso and explanations to the sub-section. We
fail to see any application of section 3(3) of the Contempt of Courts
Act in the facts of this case. In this case there is
no distribution of any publication made under sub-section (1). Hence, neither
sub-section (3) nor its proviso or explanation is attracted. NDTV did the
sting, prepared a programme on the basis of the sting materials and telecast it
at a time when it fully knew that the BMW trial was going on.
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.
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
& TELECAST OF STING PROGRAMMES SERVED IMPORTANT PUBLIC CAUSE
Looking at the matter from a slightly different angle we ask the
simple question, what would have been in greater public interest; to allow the
attempt to suborn a witness, with the object to undermine a criminal trial, lie
quietly behind the veil of secrecy or to bring out the mischief in full public
gaze? To our mind the answer is obvious. The sting telecast by NDTV was indeed
in larger public interest and it served an important public cause.
We have held that the sting programme telecast by NDTV in no way
interfered with or obstructed the due course of any judicial proceeding, rather
it was intended to prevent the attempt to interfere with or obstruct the due
course of law in the BMW trial. We have also held that the sting programme
telecast by NDTV served an important public cause. In view of the twin findings
we need not go into the larger question canvassed by Mr Salve that even if the
programme marginally tended to influence the proceedings in the BMW trial the
larger public interest served by it was so important that the little risk
should not be allowed to stand in its way.
in the telecast:
We have unequivocally upheld the basic legitimacy of the stings
and the sting programmes telecast by NDTV. But at the same time we must also
point out the deficiencies (or rather the excesses) in the telecast. Mr.
Subramanium spoke about the `slant' in the telecast as `regrettable overreach'.
But we find many instances in the programme that cannot be simply described as
`slants'. There are a number of statements and remarks which are actually
incorrect and misleading. In the first sting programme telecast on May 30, 2007
at 8.00 pm the anchor made the opening remarks as under:
Evening,.... an NDTV expose, on how the legal system may have been subverted in
the high profile BMW case. In 1999 six people were run over allegedly by a BMW
driven by Sanjeev Nanda a young, rich industrialist but 8 years later every
witness except one has turned hostile. Tonight NDTV investigates did the
prosecution, the defence and the only witness not turned hostile Sunil Kulkarni
The anchor's remarks were apparently from a prepared text since
the same remarks were repeated word by word by another anchor as introduction
to the second telecast on the same day at 9:00 pm.
Further, in the 9 o'clock telecast 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
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."
[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.
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 prosecution witness and, therefore, there was no question of his being
declared `hostile' by the prosecution. He was being examined as a Court
Nevertheless, the prosecution was cross-examining him in detail in
course of which he was trying to sabotage the prosecution case.
The second statement is equally, if not more, fallacious. In the
second statement it is said that Kulkarni was `inexplicably' dropped as a
prosecution witness. We have seen earlier that Kulkarni was dropped as a
prosecution witness for good reasons summed up in the Joint Commissioner's
report to the trial court and there was nothing `inexplicable' about it. In the
second statement it is further suggested that the prosecution's claim that
Kulkarni was bought over by the accused was untrue because he was the only
witness who still said that the accident was caused by a black car with two men
in it, one of them being called Sanjeev. It is true that in his deposition
before the court Kulkarni said that the accident was caused by a black car but
he resiled from his earlier statements made before the police and the
magistrate in a more subtle and clever way than the other two prosecution
witnesses, namely, Hari Shankar Yadav and Manoj Malik. Departing from his
earlier statements he said in the court that he heard one of the two occupants
of the car addressing the other as `Sanch or sanz' (and not as Sanjeev). Further,
though admitting that Sanjeev Nanda was one of the occupants of the car, he
positively denied that he got down from the driving seat of the car and placed
someone else on the driving seat of the car causing the accident. Thus the
damage to the prosecution case that he tried to cause was far more serious than
any other prosecution witness. It is not that NDTV did not know these facts.
NDTV was covering the BMW trial very closely since its beginning and was aware
of all the developments taking place in the case.
did it introduce the programme in this way, running down the prosecution and
presenting Kulkarni as the only person standing upright while everyone else had
fallen down? The answer is not far to seek. One can not start a highly
sensational programme by saying that it was prepared with the active help of
someone whose own credibility is extremely suspect. The opening remarks were
thus designed to catch the viewer and to hold his/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
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.
Another sad feature is its stridency. It is understandable that
the programme should have started on a highly sensational note because what was
about to be shown was really quite shocking.
programme never regained poise and it became more and more shrill. All the
interviewees, highly eminent people, expressed their shock and dismay over the
state of the legal system in the country and the way the BMW trial was
proceeding. But as the interview progressed, they somewhat tended to lose their
self restraint and did not pause to ponder that they were speaking about a
sub-judice matter and a trial in which the testimony of a court witness was not
left with the feeling that some of the speakers allowed their passions, roused
by witnessing the shocking scenes on the TV screen, to get better of their
judgment and made certain very general and broad remarks about the country's
legal system that they might not have made if speaking in a more dispassionate
and objective circumstances. Unfortunately, not a single constructive
suggestion came from anyone as to how to revamp the administration of criminal
justice. The programme began on negative note and remained so till the very
of NDTV in proceeding before High Court:
In the earlier part of the judgment some of the glaring lapses
committed by NDTV in the proceeding before the High Court are already
recounted. Apart from those one or two other issues need to be mentioned here
that failed to catch the attention of the High Court. It seems that at the time
the sting operations were carried out people were actually apprehensive of
something of that kind. Vikas Arora, Advocate had stated in his complaint
(dated April 19, 2007) about receiving such a threat from Poonam Agarwal. NDTV
in its reply dated April 26, 2007 had denied the allegations in the complaint,
at the same time, declaring its resolve to make continuous efforts to unravel
the truth. At the same time Poonam Agarwal was planning the stings in her
meetings with Kulkarni. As a matter of fact, the first sting was carried out on
IU Khan just two days after giving reply to Arora's complaint. Further, from
the transcript of the first sting carried out on RK Anand on May 6, 2007 it
appears that he too had expressed some apprehension of this kind to which
Kulkarni responded by saying that he did not have money enough to eat how could
he do any recording of anyone. (It is difficult to miss the irony that the
exchange took place 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.
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 better opportunity for the sting. With `good
Scotch whisky' flowing it was likely that the planners of the stings would get
more substantial evidences of what they suspected.
are not told anything about this meeting: whether it took place or not? If it
took place what transpired in it and whether any sting recording was done? If
it did not take place what was the reason for not keeping the appointment and
giving up such a good opportunity. Here it may be noted that Kulkarni also in
his affidavit filed before the High Court on August 6, 2007 stated that as
arranged between them he again met IU Khan in the evening but the sting
recording of that meeting was withheld by NDTV because that falsified their
story. Kulkarni, as was his wont, might be telling lies but that was an
additional reason for NDTV to clarify the issue regarding the second meeting
between the two.
The next meeting between Kulkarni and IU Khan that was fixed up in
the sting meeting on April 28, 2007 might or might not have taken place but
there can be little doubt that they met again between April 28, 2007 and May
31, 2007 (the day following the first sting telecast) when Kulkarni gave IU
Khan the `certificate' that he had accepted the summons on his advice (which
was submitted by IU Khan before the trial court when he withdrew from the
The affidavits filed on behalf of NDTV are completely silent on
These omissions (and some similar others) on the part of NDTV
leave one with the feeling that it was not sharing all the facts within its
knowledge with the court. The disclosures before the Court do not appear to be
completely open, full and frank. It would tell the court only so much as was
necessary to secure the conviction of the proceedees-wrong doers. There were
some things that it would rather hold back from the court. We would have
appreciated the TV channel to make a fuller disclosure before the High Court of
all the facts within its knowledge.
Having said all this we would say, in the end, that for all its
faults the stings and the telecast of the sting programme by NDTV rendered
valuable service to the important public cause to protect and salvage the
purity of the course of justice. We appreciate the professional initiative and
courage shown by the young reporter Poonam Agarwal and we are impressed by the
painstaking investigation undertaken by NDTV to uncover the Shimla connection
between Kulkarni and RK Anand.
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
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 orientation or that they maintain the same standards in all their
programmes. In quest of excellence they have still a long way to go.
A private TV channel which is also a vast business venture has the
inherent dilemma to reconcile its business interests with the higher standards
of professionalism/demands of profession.
may not always converge and then the TV channel would find its professional
options getting limited as a result of conflict of priorities. The media trips
mostly on TRPs (television rating points), when commercial considerations
assume dominance over higher standards of professionalism.
It is not our intent here to lay down any reformist agenda for the
media. Any attempt to control and regulate the media from outside is likely to
cause more harm than good. The norms to regulate the media and to raise its
professional standards must come from inside.
The other important issue thrown up by this case and that causes
us both grave concern and dismay is the decline of ethical and professional
standards among lawyers. The conduct of the two appellants (one convicted of
committing criminal contempt of court and the other found guilty of misconduct
as Special Prosecutor), both of them lawyers of long standing, and designated
Senior Advocates, should not be seen in isolation. The bitter truth is that the
facts of the case are manifestation of the general erosion of the professional
values among lawyers at all levels. We find today lawyers indulging in
practices that would have appalled their predecessors in the profession barely
two or three decades ago. Leaving aside the many kinds of unethical practices
indulged in by a section of lawyers we find that even some highly successful
lawyers seem to live by their own rules of conduct. We have viewed with
disbelief Senior Advocates freely taking part in TV debates or giving
interviews to a TV reporter/anchor of the show on issues that are directly the
subject matter of cases pending before the court and in which they are
appearing for one of the sides or taking up the brief of one of the sides soon
after the TV show. Such conduct reminds us of the fictional barrister Rumpole,
`the Old Hack of Bailey', who self deprecatingly described himself as an `old
taxi plying for hire'. He at least was not bereft of professional values. When
a young and enthusiastic 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"
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.
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 his
submissions he eloquently addressed us on the elevated position enjoyed by a
lawyer in our system of justice and the responsibilities cast upon him in
consequence. His Written Submissions begin with this issue and he quotes
extensively form the address of Shri M C Setalvad at the Diamond Jubilee
Celebrations of the Banglore Bar Association, 1961, and from the decisions of
this Court in Pritam Pal vs. High court of Madhya Pradesh, 1993 Supp (1) SCC
529 (observations of Ratnavel Pandian J.) and Sanjeev Datta, In Re, (1995) 3
SCC 619 (observations of Sawant J. at pp 634-635, para 20).
We respectfully endorse the views and sentiments expressed by Mr.
M.C. Setalvad, Pandian J. and Sawant J.
Here we must also observe that the Bar Council of India and the
Bar Councils of the different states cannot escape their responsibility in this
regard. Indeed the Bar council(s) have very positively taken up a number of
important issues concerning the administration of justice in the country. It
has consistently fought to safeguard the interests of lawyers and it has done a
lot of good work for their welfare. But on the issue of maintaining high
professional standards and enforcing discipline among lawyers its performance
hardly matches its achievements in other areas. It has not shown much concern
even to see that lawyers should observe the statutory norms prescribed by the
Council itself. We hope and trust that the Council will at least now sit up and
pay proper attention to the restoration of the high professional standards
among lawyers worthy of their position in the judicial system and in the
takes us to the last leg of this matter.
LARGER ISSUE: BMW TRIAL GETTING OUT OF HAND:
Before laying down the records of the case we must also advert to
another issue of great importance that causes grave concern to this Court. At
the root of this odious affair is the way the BMW trial was allowed to be
constantly interfered with till it almost became directionless. We have noted
Kulkarni's conduct in course of investigation and at the commencement of the
trial; the fight that broke out in the court premises between some policemen
and a section of lawyers over his control and custody; the manner in which Hari
Shankar Yadav, a key prosecution witness turned hostile in court; the curious
way in which Manoj Malik, another key witness 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.
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 to proceed. But unfortunately the reports would seldom, if
ever, be taken note of by the collective consciousness of the Court. The High
Court would continue to carry on its business as if everything under it was
proceeding normally and smoothly. The trial would fail because it was not
protected from external interferences. Every trial that fails due to external
interference is a tragedy for the victim(s) of the crime. More importantly,
every frustrated trial defies and mocks the society based on the rule of law.
Every subverted trial leaves a scar on the criminal justice system. Repeated
scars make the system unrecognisable and it then loses the trust and confidence
of the people. Every failed trial is also, in a manner of speaking, a negative
comment on the State's High Court that is entrusted with the responsibility of
superintendence, supervision and control of the lower courts. It is, therefore,
high time for the High Courts to assume a more pro-active role in such matters.
A step in time by the High Court can save a criminal case from going astray. An
enquiry from the High Court Registry to the concerned quarters would send the
message that the High Court is watching; it means business and it will not
tolerate any nonsense. Even this much would help a great deal in insulating a
criminal case from outside interferences. In very few cases where more positive
intervention is called for, if the matter is at the stage of investigation the
High Court may call for status report and progress reports from police
headquarter or the concerned Superintendent of Police. That alone would provide
sufficient stimulation and pressure for a fair investigation of the case. In
rare cases if the High Court is not satisfied by the status/progress reports it
may even consider taking up the matter on the judicial side. Once the case
reaches the stage of trial the High Court obviously has far wider powers. It
can assign the trial to some judicial officer who has made a reputation for
independence and integrity. It may fix the venue of the trial at a proper place
where the scope for any external interference may be eliminated or minimized.
It can give effective directions for protection of witnesses and victims and
their families. It can ensure a speedy conclusion of the trial by directing the
trial court to take up the matter on a day-to-day basis. The High Court has got
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
In light of the discussions made above we pass the following
orders and directions.
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 Delhi High
Court may still consider whether or not to continue the honour of Senior
Advocate conferred on him in light of the findings recorded in this judgment.
appeal of RK Anand is dismissed subject to the notice of enhancement of
punishment issued to him as indicated in paragraph 165 of the judgment. He is
allowed eight weeks time from the date of service of notice for filing his
of the High Courts which have so far not framed any rules under section 34 of
Act, shall frame appropriate rules without any
further delay as directed in paragraph 147 of the judgment.
4. Put up
the appeal of RK Anand after the show-cause is filed.
..............................J. [B.N. AGRAWAL]
....................................J. [G.S. SINGHVI]
..........................................J. [AFTAB ALAM]
New Delhi, July 29, 2009.