Report No. 200
Pre-trial publications granted immunity under section 3(2) & Explanation:
It will be seen from the Explanation below section 3, the starting point for deeming a criminal proceeding as pending, it is sufficient if a charge sheet or challan is filed or Court summons or warrant are issued. Thus so far as criminal contempt is concerned, the 'pre-trial' period has not been given the required importance under the Court of Contempts Act, 1971.
'Pendency' under the Explanation to section 3 starts, in a criminal case, only from the time when the charge sheet or challan is filed or summon or warrant is issued by the criminal Court and not even from date of arrest, even though from the time of arrest, a person comes within the protection of the Court for he has to be brought before a Court within 24 hours under Art 22(2) of the Constitution of India. If there are prejudicial publications after arrest and before the person is brought before Court or his plea for bail is considered, there are serious risks in his getting released on bail.
Certain acts like publications in the media at the pre-trial stage, can affect the rights of the accused for a fair trial. Such publications may relate to previous convictions of the accused, or about his general character or about his alleged confessions to the police etc.
In the context of a parallel investigation which was undertaken pending arrest and trial in the court, the Supreme Court referred to 'trial by press'. This was, of course, before 1971 Act was enacted. In Saibal v. B.K. Sen (AIR 1961 SC 633) it said:
"It would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of the investigation. This is because, trial by newspapers, when a trial by one of the regular tribunal is going on, must be prevented. The basis for this view is that such action on the part of the newspaper tends to interfere with the course of justice".
The words "tends to interfere with the course of justice" used by the Supreme Court in the above case are quite significant.
In the light of the human rights concepts referred to above and the provisions of our Constitution and the Contempt of Courts Act, 1971, the question arises whether any publication of matters regarding suspect or accused can amount to contempt of Court not only when it is made during the pendeny of a criminal case (i.e. after the charge sheet is filed) but before that event, e.g. once a person is arrested and criminal proceedings are "imminent". This issue requires a very detailed examination and will be considered in the ensuing chapters.