R.K. Anand v. Registrar, Delhi High Court(2009) 8 SCC 106

Case Summary

Full Case Details

AFTAB ALAM, J. 1. The present is a fall out from a criminal trial arising from a hit and run
accident on a cold winter morning in Delhi in which a car travelling at reckless speed crashed
through a police check post and crushed to death six people, including three policemen. Facing the
trial, as the main accused, was a young person called Sanjeev Nanda coming from a very wealthy
business family. According to the prosecution, the accident was caused by Sanjeev Nanda who, in
an inebriated state, was driving a black BMW car at very high speed. The trial, commonly called as
the BMW case, was meandering endlessly even after eight years of the accident and in the year
2007, it was not proceeding very satisfactorily at all from the point of view of the prosecution. The
status of the main accused coupled with the flip flop of the prosecution witnesses evoked
considerable media attention and public interest. 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. (In the 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.

2. These two appeals by RK Anand and IU Khan respectively are filed under Section 19(1) of
   the Contempt of Courts Act against the judgment and order passed by the Delhi High Court.
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   THE CONTEXT
3. Before proceeding to examine the different issues arising in the case it is necessary to first
   know the context in which the whole sordid episode took place. It will be, therefore, useful to put
   together the basic facts and circumstances of the case at one place. The occurance in which six
   people lost their lives was reconstructed by the prosecution on the basis of police investigation as
   follows:
   The crime, the Police investigation & proceedings before the Trial court
4. On January 10, 1999 at about half past four in the morning a speeding vehicle crashed
   through a police check-post on one of the Delhi roads and drove away leaving behind six people
   dead or dying. As the speeding car hit the group of 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 it.
   The car, 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.
5. 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 some friend(s).
6. 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 there 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
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   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.
7. 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.
8. 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. Moreover,
   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.
9. 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 accused. He was trying to play the two ends against the middle and he was completely
   unreliable.
10. On September 30, the date fixed for his examination, Kulkarni was duly present in court. He
    was, 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,
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    discharged him leaving the question open as to what inference would it draw as a result of his nonexamination by the prosecution.
11. Earlier to Kulkarni’s exit from the case, the prosecution had lost two other key witnesses. To
    begin 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.
12. 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 behalf. While the
    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.
    MEDIA INTERVENTION
13. In the trial court the matter was in this state when another chapter was opened up by a TV
    channel with which we are primarily concerned in this case. On April 19, 2007 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.
14. 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
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    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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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. One
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    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.
21. 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 operationin the interest of the judiciary’. In answer to one of the questions by the interviewer he
    replied rather grandly that he would ask the court to provide him security by the NSG and he would
    try to go and depose as soon as security was provided to him. In the second part of the interview the
    interviewer asked him about the accident and in that regard he said briefly and in substance what he
    had earlier stated before the police and the magistrate.
    Back to the Court
22. It is noted above that by order dated March 19, 2007 the trial court had summoned Kulkarni
    to appear before it as a court witness on May 14, 2007. The defence took the matter to the Delhi
    High Court (in Crl. M.C. No. 1035/2007 with Crl. M. 3562/2007) assailing the trial court order
    rejecting their prayer to recall some prosecution witnesses for further cross-examination and suo
    moto summoning Kulkarni under Section 311 of CrPC, to be examined as a court witness. The
    matter 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.
23. 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.
    But on 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 nameSanjeev’, 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
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    his statement under Section 164 was correct. He said that actually three, and not two, persons had
    got down from the car. The court then asked him to identify the persons who came out of the
    offending car. Kulkarni identified Sanjeev Nanda who was present in court. He further said that the
    third occupant of the car was a hefty boy whom he did not see in the court. At this point IU Khan
    explained that he might be referring to Sidharth Gupta who was discharged by the order of the High
    Court. Kulkarni added that he was unable to identify the second occupant of the car and went on to
    declare, even without being asked, he could not say who came out of the driver’s side. He was
    shown Manik Kapoor, another accused in the case, as one the occupants of the car but he said that
    after lapse of nine years he was not in a position to identify him.
24. On May 29 Kulkarni was cross examined on behalf of the Prosecution by IU Khan. The
    prosecutor confronted him with his earlier statements recorded under Sections 161 and 164 of CrPC
    and he took it as 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.
    THE TELECAST
25. 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. BarkhaDutt 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.
26. 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
    case. According 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.
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27. In regard to the telecast it needs to be noted that though the sting operations were complete
    on May 8, 2007 and all the materials on which the telecast would be based were available with the
    TV channel, the programme came on air much later on May 30. The reason for withholding the
    telecast was touched upon by the anchors who said in their introductory remarks that after the sting
    operations were complete and just 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.
28. 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 May 31.
    But that 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.
29. 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.
    Impact of the telecast:
30. On the same day IU Khan withdrew from the BMW case as Special Public Prosecutor.
    Before his withdrawal, however, he produced before the trial court a letter that finds mention in the
    trial court order passed on that date, written in the hand of Kulkarni stating that he collected the
    summons issued to him by the court from SHO, Lodhi Colony Police Station on the advice of IU
    Khan.
31. The trial court viewed the telecast by NDTV very seriously and issued notice to its
    Managing Director directing to produce `the entire unedited original record of the sting operation as
    well as the names of the employees/reporters of NDTV who were part of the said sting operation’ by
    the following day.
32. The further cross-examination of Kulkarni was deferred to another date on the request of the
    counsel replacing IU Khan as Special Public Prosecutor.
33. On June 1, 2007, RK Anand had a legal notice sent to NDTV, its Chairman, Directors and a
    host of other staff asking them to stop any further telecasts of their BMW programme and to tender
    75
    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 notice.
    HIGH COURT TAKES NOTICE
34. 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 NDTVto preserve the original material including the CDs/Video pertaining to the aforesaid sting
    operation.’
35. 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 (marked2′-`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 duly preserved.
36. 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
    plans. Proceeding resumes:
37. On August 7, 2007, the Court on a consideration of all the materials coming before it came
    to the view that prima facie the actions of RK Anand, IU Khan, Bhagwan Sharma and Lovely (who
    was dead by then) were aimed at influencing the testimony of a witness in a manner so as to
    interfere with the due legal process. Their actions thus clearly amounted to criminal contempt of
    court as defined under Clause (ii) & (iii) of Section 2(c) of the Contempt of Courts Act. The Court
    accordingly passed the following order:
    From your aforesaid acts and conduct as discerned from the CDs and their transcripts, the
    affidavit 23rd July, 2007 of Ms. Poonam Agarwal along with its annexures, we are, prima facie,
    satisfied that you Mr. R.K. Anand, Senior Advocate, Mr. I. U. Khan, Senior Advocate, Mr. Sri
    Bhagwan, Advocate and Mr. Lovely have wilfully and deliberately tried to interfere with the due
    course of 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 judicial proceedings.
    Accordingly, 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,
    76
    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.
    You are, therefore, required to file your reply showing cause, if any, against the action as
    proposed within four weeks.
38. 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.
39. On October 1, IU Khan filed his affidavit in reply to the notice issued by the High Court and
    RK Anand and Bhagwan Sharma filed their affidavits on October 3, 2007.
    YET ANOTHER TELECAST
40. In the evening of December 3, 2007 NDTV telecast yet another programme from which it
    appeared that RK Anand and Kulkarni were by no means strangers to each other and the association
    between the two went back several years in the past. Kulkarni, under the assumed name of
    Nishikant, had stayed in RK Anand’s villa in Shimla for some time. There he also had a brush with
    the law and was arrested by the police in Una (HP). He had spent about forty five days in jail. From
    the HP police record it appeared that after coming on the scene in the BMW case he spent some
    time in hotels in Rajasthan and Gurgaon with the Nanda’s paying the bills.
41. 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.
42. 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.
    PROCEEDINGS BEFORE THE HIGH COURT
43. 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
    77
    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.
44. 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.
45. 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.
    SOME OF THE ISSUES ARISING IN THE CASE
46. 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 Court.
    The two appeals give rise to the following questions:
47. Whether the conviction of the two appellants for committing criminal contempt of court is
    justified and sustainable?
48. Whether the procedure adopted by the High Court in the contempt proceedings was fair and
    reasonable, causing no prejudice to the two appellants?
49. 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?
50. 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:
51. The 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.
52. The declining professional standards among lawyers, and
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53. The root-cause behind the whole affair; the way the BMW trial was allowed to go
    directionless
54. 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.
    RK ANAND’S APPEAL
55. 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.
56. 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 trial.
    He also 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. Nature of Contempt Proceeding:
57. 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
    Mritunjoy Das v.Sayed Hasibur Rahman [2001] 2 SCR 471 and the other in Chotu Ram
    v.Urvashi Gulati[2001Cri LJ 4204]. 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 1063H and 1064B] on the nature and standard of evidence required in a proceeding of
    contempt.
    A 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.
    79
58. Seeking to buttress the point learned Counsel also referred to some more decisions of this
    Court in: (i) Anil Rattan Sarkar v.Hirak Ghosh2002 Cri LJ 1814 Bijay Kumar
    Mahantyv.Jadu @ Ram Chandra Sahoo 2003 Cri LJ 841 J. R. Parashar, Advocate
    v.Prashant Bhushan, Advocate [2001 Cri LJ 4207] and (iv) S. Abdul Karim v.NK Prakash [1976
    Cri LJ 641].
59. There cannot be any disagreement with the proposition advanced by Mr. Ahmed but as
    noted above if the sting recordings are true and correct no more evidence is required to see that RK
    Anand was trying to suborn a witness, that is, a particularly vile way of interfering with due course
    of a judicial proceeding especially if indulged in by a lawyer of long standing. Admissibility of
    electronically recorded & stored materials in evidence:
60. 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. He 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.
61. 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.
62. Two of the decisions of this Court referred by Mr. Ahmed, one in S A Khanv.Bhajan
    Lal[(1993) 3 SCC 151] and the other in Quamarul Islam v.S. K. Kanta[1973 Cri LJ 228] 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.
63. 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 v. V. Giri[1971] 1 SCR 399 (ii)
    R.M. Malkani v.State of Maharashtra1973Cri LJ228 (iii) Mahabir Prasad Verma v.Dr. Surinder
    Kaur[1982]3 SCR 607 and (iv) Ram Singh v.Col. Ram Singh AIR 1986 SC 3 . He also referred to
    two foreign decisions on the point, one in (i) R v. 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 v. 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 v. 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:
    (1) The voice of the speaker must be duly identified by the maker of the record or by other who
    recognise his voice. In other words, it manifestly follows as a logical corollary that in the first
    condition for the admissibility of such a statement is to identify the voice of the speaker. Where the
    80
    voice has been denied by the maker it will require very strict proof to determine whether or not it
    was really the voice of the speaker.
    (2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by
    satisfactory evidence-direct or circumstantial.
    (3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be
    ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
    (4) The statement must be relevant according to the rules of Evidence Act.
    (5) The recorded cassette must be carefully sealed and kept in a safe or official custody.
    (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds
    or disturbances.
64. In R v. 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:
    Just 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 tape recordings. However 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.
65. 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 v.
    Michael Odell Sibley. In this decision there is a reference to an earlier decision of the same court in
    State v. Cannon. [92 N C App. 246] etc. in which the conditions for admissibility of video tape in
    evidence were laid down as under:
    The prerequisite that the offer or lay a proper foundation for the videotape can be met by:
    (1) 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 `photographed.
66. 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 v. Markel American Insurance Company. Mr. Ahmed also cited
    before us an article captioned `The Sedona Conference. Commentary on ESI Evidence &
    Admissibility’: A Project of The Sedona Conference Working Group on Electronic Document
    Retention & Production (WGI). published in Sedona Conference Journal, Fall 2008. The article
    81
    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.
67. He also invited our attention to an article appearing in The Indian Police Journal, JulySeptember 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:
    The 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.
    And further:
    Alteration 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
68. 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.
69. 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.
70. Mr. Ahmed further submitted that the procedure followed by the High Court was so flawed
    that even the number of chips used for the different sting operations remained indeterminate. The
    trial court order dated June 1, 2007 referred to three chips produced on behalf of NDTV. The
    written statement of Poonam Agarwal made before the High Court on June 6, 2007 mentioned four
    chips and finally their number became five in her affidavit dated October 1, 2007.
71. 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
    82
    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.
    SUBMISSIONS CONSIDERED
72. 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.
73. 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 Cri LJ 3994; Daroga Singh v.B.K. Pandey
    2004 Cri LJ 2084].
    CORRECTNESS OF STING RECORDINGS NEVER DISPUTED OR DOUBTED:
74. 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.
    [Following are the extracts from the exchange between the anchor and RK Anand]
75. 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.
76. 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.
77. 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 some times 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.
    83
78. 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.
    IU KHAN’S APPEAL
79. 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.
    The first 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 Kulkarni. Only
    partial transcript of the sting recording submitted to Court:
80. What follows from the affidavit may be summarised as follows; (I) the conduct of NDTV
    before the High Court in a vary 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.
81. In those circumstances it was not wrong for IU Khan to state in paragraphs 14 and 15 of
    his memorandum of appeal as under:
82. …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.
    84
83. 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…
    Submissions on behalf of IU Khan
84. 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.
    SUBMISSIONS CONSIDERED
85. We have carefully gone through all the materials concerning IU Khan. We have perused
    the transcript of the exchange between Kulkarni and IU Khan and have also viewed the full
    recording of the sting several times since the full transcript of the recording is not available on the
    record. IU Khan’s conduct quite improper:
86. 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.
87. 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
    85
    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.
    There 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.
    The video of the sting recordings leaves no room for doubt that IU Khan was freely discussing the
    proceeding of BMW case with Kulkarni and was not at all averse to another meeting with him
    rather he was looking forward to it. We, therefore, fully endorse the High Court finding that the
    conduct of IU Khan was inappropriate for a lawyer in general and a prosecutor in particular.
    CRIMINAL CONTEMPT ???
88. 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.
89. 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.
    IU Khan, 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.
90. 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'. IfBade
    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.
91. 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
    86
    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. He said as
    follows;
    He (IU Khan) directed me to Mr RK Anand is in that video you can find `Bade Saheb’. He
    meant that Mr. RK Anand.
92. 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.
93. The only other positive material in this regard is the one referred to by the High Court. The
    High 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:
94. The High Court rejected IU Khan’s explanation that what he meant by `Bade Saheb’ was
    some senior officer in the police headquarter.
95. 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.
96. 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,
    87
    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.
97. 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.
    PROCEDURE FOLLOWED BY THE HIGH COURT
98. 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.
99. 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.
100. 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. Then 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
     88
     conducted itself in a more careful manner and the lapses as indicated above in the case of IU Khan
     might not have occurred.
     THE PUNISHMENT: PROHIBITION AGAINST APPEARING IN COURTS
101. 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 legal sanction.
102. 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.
     Mr. Rao submitted that a person who is a law graduate becomes entitled to practise the profession
     of law on the basis of his enrolment with any of the State Bar Councils established under the
     Advocates Act, 1961. Appearance in Court is the dominant, if not the sole content of a lawyer’s
     practice. Since, the authority to grant licence to a law graduate to practise as an advocate vests
     exclusively in a State Bar Council, the power to revoke the licence or to suspend it for a specified
     term also vests in the same body. Further, the revocation or suspension of licence of an advocate
     has not only civil but also penal consequences; hence, the relevant statutory provisions in regard to
     imposition of punishment must be strictly followed. Punishment by way of suspension of the
     licence of an advocate can only be imposed by the Bar Council, the competent statutory body, after
     the charge is established against the advocate concerned in the manner prescribed by the Act and
     the Rules framed thereunder. The High Court can, of course, prohibit an advocate convicted of
     contempt from appearing before it or any court subordinate to it till the contemnor purged himself
     of the contempt. But it cannot assume the authority and the power statutorily vested in the Bar
     Council.
103. 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
     89
     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.
104. 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 v. Union of India MANU/SC/0291/1998 : [1998]2SCR795
     . In paragraph 37 of the decision the Court observed and held as under:
     37.The nature and types of punishment which a court of record can impose in a case of
     established contempt 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.
     In Paragraph 57 it observed:
105. 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. Again in paragraph 80 it
     observed:
106. 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.
107. The matter, however, did not stop at Supreme Court Bar Association. In Pravin C Shah
     v.K.A. Mohd. Ali [AIR 2001 SC 3041], 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:
     90
     No advocate who has been found guilty of contempt of court shall be permitted to appear, act or
     plead in any court unless he has purged himself of the contempt.
108. More importantly, another Constitution Bench of this Court in Ex. Capt. Harish Uppal
     v.Union of India [(2002) SUPP 5 SCR 186], 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.
109. 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 v.The High Court of Kerala[AIR 2004 SC
     2227].
110. 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
     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. orderly 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 misconduct. Further, 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 the decision.
111. We respectfully submit that the decision in Ex-Capt. Harish Uppal v. Union of India places
     the issue in correct perspective and must be followed to answer the question at issue before us.
112. 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
     91
     genuinely contrite and remorseful for his act/conduct, but on the contrary shows a tendency to
     repeat or perpetuate the wrong act(s).
113. 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.
114. In order to avoid any such controversies in future all the High Courts that have so far not
     framed rules under Section 34 of the Advocates Act are directed to frame the rules without any
     further delay. It is earnestly hoped that all the High Courts shall frame the rules within four months
     from today. The High Courts may also consider framing rules for having Advocates on Record on
     the pattern of the Supreme Court of India. Suborning a witness in a criminal trial is an act striking at
     the root of the judicial proceeding and it surely deserves the treatment meted out to the appellant.
     But the appellants were not given any notice by the High Court that if found guilty they might be
     prohibited from appearing in the High Court, and the courts subordinate to it, for a certain period.
     To that extent the direction given by the High Court was not in conformity with the principles of
     natural justice.
     THE QUESTION OF SENTENCE
115. 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.
     THE DIVERSIONARY & INTIMIDATORY TACTICS IN THE PROCEEDING
116. 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.
     REQUEST FOR RECUSAL
117. 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
     92
     events, that he had tried his best to forget the past and bury the hatchet but the way and the manner
     in which the matter was being dealt with had caused the greatest damage to his reputation. He made
     the prayer that the recusal application should be heard in camera and the main matter be transferred
     to another bench of which Sarin J. was not a member. Along with the petition he filed a sealed
     cover containing a note and the materials giving rise to the belief that he was not likely to get justice
     at the hands of Sarin J.
118. 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.
119. 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.
120. We have so far been considering the two appeals proper. We now proceed to examine
     some other important issues arising from the case.
     THE ROLE OF NDTV
121. 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 Court.
     Also, it was the duty of that TV channel to place the sting materials before the court before
     telecasting any programme on that basis.
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122. 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. Reporting of
     pending trial:
123. 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 precensorship of reporting of court proceedings. And this would be plainly an infraction of the media’s
     right of freedom of speech and expression guaranteed under Article 19(1) of the Constitution.This
     is, however, not to say that media is free to publish any kind of report concerning a sub-judice
     matter or to do a sting on some matter concerning a pending trial in any manner they please. The
     legal parameter within which a report or comment on a sub-judice matter can be made is well
     defined and any action in breach of the legal bounds would invite consequences. Compared to
     normal reporting, a sting operation is an incalculably more risky and dangerous thing to do. A sting
     is based on deception and, therefore, it would attract the legal restrictions with far greater stringency
     and any infraction would invite more severe punishment.
     Sting programme whether trial by media??
124. 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 expressiontrial by
     media’ is defined to mean:
     the 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 scrutiny.
125. 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
     94
     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. Stings & telecast of sting programmes not constituting
     criminal contempt:
126. 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:
127. Innocent publication and distribution of matter not contempt.- (1) A person shall not be guilty
     of contempt of court on the ground that he has published (whether by words, spoken or written, or
     by signs, or by visible representations, or otherwise) any matter which interferes or tends to
     interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or
     criminal proceeding pending at that time of publication, if at that time he had no reasonable grounds
     for believing that the proceeding was pending.
     (2) x xx
     (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 aforesaid: Provided 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);
     (ii) any publication which is a newspaper published otherwise than in conformity with the rules
     contained in Section 5 of the said Act.
     Explanantion.- For the purposes of this section, a judicial proceeding-
     (a) is said to be pending-
     (A) x xx
     (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) x xx
128. Section 5 provides that a fair criticism of a judicial act concerning any case which has been
     heard and finally decided would not constitute contempt.
129. 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 Subsection (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
     95
     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.
     Hence, if the programme is held to be a matter which interfered or tended to interfere with, or
     obstructed or tended to obstruct the due course of the BMW case then the immunity under Subsection (1) will not be available to it and the telecast would clearly constitute criminal contempt
     within the meaning of Section 2(c)(ii)& (iii) of the Act. But can the programme be accused of
     interfering or tending to interfere with, or obstructing or tending to obstruct the due course of the
     BMW case. Whichever way we look at the programme we are not able to come to that conclusion.
     The programme may have any other faults or weaknesses but it certainly did not interfere with or
     obstruct the due course of the BMW trial. The programme telecast by NDTV showed to the people
     (the courts not excluded) that a conspiracy was afoot to undermine the BMW trial. What was shown
     was proved to be substantially true and accurate. The programme was thus clearly intended to
     prevent the attempt to interfere with or obstruct the due course of the BMW trial.
     STINGS & TELECAST OF STING PROGRAMMES SERVED IMPORTANT PUBLIC
     CAUSE
130. 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.
131. 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. Excesses in the telecast:
132. 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 asregrettable
     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:
     Good 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 collude…
133. 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.
     96
134. 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 following words:
     Sunil Kulkarni, a passerby, who allegedly saw the accident but inexplicably dropped as witness
     by prosecution. They claim he had been bought by the Nandas. This despite the fact that he is the
     only witness who still says the accident was caused by a `black car’ with two men in it one of them
     called Sanjeev.
135. [This statement does not find place in the manuscript of the telecast furnished to the court
     and can be found only by carefully watching the CD of the telecast submitted before the court. We
     are again left with the feeling that NDTV did not submit full and complete materials before the
     court and we are surprised that the High Court did not find it amiss]
136. 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 witnesses.
     Nevertheless, the prosecution was cross-examining him in detail in course of which he was trying to
     sabotage the prosecution case.
137. 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 nothinginexplicable’ 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.
     Then why 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 value.
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138. 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.
139. 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.
     But the 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 even over.
     We are 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 end. Conduct of NDTV in proceeding before
     High Court:
140. 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.
141. 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.
     98
     But we 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.
142. 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 case).
143. The affidavits filed on behalf of NDTV are completely silent on these aspects.
144. 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.
145. 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.
146. We have recounted above the acts of omission and commission by NDTV before the High
     Court and in the telecast of the sting programme in the hope that the observations will help NDTV
     and other TV channels in their future operations and programmes. We are conscious that the
     privately run TV channels in this country are very young, no more than eighteen or twenty years
     old. We also find that like almost every other sphere of human activity in the country the electronic
     news media has a very broad spectrum ranging from very good to unspeakably bad.
147. 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.
148. 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.
     The two 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.
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149. 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.
     ROLE OF THE LAWYER
150. 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 anold 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”
151. 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.
152. 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 v. High court of Madhya Pradesh
     MANU/SC/0169/1992 : 1992CriLJ1269 (observations of Ratnavel Pandian J.) and Sanjeev Datta,
     In Re, MANU/SC/0697/1995 : 1995CriLJ2910 (observations of Sawant J. at pp 634-635, para 20).
153. We respectfully endorse the views and sentiments expressed by Mr. M.C. Setalvad,
     Pandian J. and Sawant J.
154. 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
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     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 society. This takes us to the last leg of this matter.
     THE LARGER ISSUE: BMW TRIAL GETTING OUT OF HAND
155. 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.
156. 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
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     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
     duties fearlessly.
157. In light of the discussions made above we pass the following orders and directions.
158. The appeal filed by IU Khan is allowed and his conviction for criminal contempt is set aside.
     The period of four month’s prohibition from appearing in Delhi High Court and the courts subordinate 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.
159. The 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 show-cause.
160. Those of the High Courts which have so far not framed any rules under Section 34 of the
     Advocates Act, shall frame appropriate rules without any further delay as directed in paragraph 147
     of the judgment.
161. Put up the appeal of RK Anand after the show-cause is filed.