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TMI Blog2009 (7) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... derable 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the same with the addition that after the accident when the car moved again the person on the driving seat was trying to look for the way by craning out his head out of the broken glass window and thus he was able to see him from a distance of no more than three and a half feet when the car passed by his side. The police wanted to settle the question of the driver's identification by having Kulkarni identify Sanjeev Nanda in a test identification parade but Sanjeev Nanda refused to take part in any identification parade. Then, on March 31, 1999 when Sanjeev Nanda was produced in court Kulkarni also happened to be there. He identified him to the investigating officer as the driver of the car causing accident. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, discharged him leaving the question open as to what inference would it draw as a result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itness 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erations were true and pure and those were not fake, fabricated, doctored or morphed. 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce `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 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 CD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g done, i.e., the time and place etc. and other relevant circumstances'. In compliance with the Court's direction, Poonam Agarwal filed an affidavit on July 23, 2007. Poonam Agarwal's Affidavit: 38. In her affidavit Poonam Agarwal stated that she was a reporter working with NDTV. She had joined the TV channel two years ago. She stated that NDTV was covering the BMW trial and had telecast a special programme on the case on April 20, 2007. Two days later Kulkarni contacted her on telephone and requested for a meeting saying that he had something important to tell her about the case. She met him on April 22 and 23. In the second meeting he was accompanied by his wife. He told her that there was a strong nexus between the prosecution and the defence in that case and that he had suffered a lot due to his involvement in the case. He was determined to expose the nexus. He said that he needed the help of NDTV to do a sting operation in order to bring out the complicity between the prosecution and the defence into open. She discussed the plan mooted by Kulkarni with her superiors in the organisation and got their permission to carry out the sting operation. In this regard she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waited in her vehicle while Kulkarni got into the back seat of a black car outside the Delhi High Court in which RK Anand was sitting from before. The car with Kulkarni and RK Anand drove off and she followed them in her vehicle. They went to South Extension, New Delhi where Kulkarni was dropped. He came back to her vehicle and joined her. She then switched off the camera. She stated in the affidavit that all along the way from outside the Delhi High Court to South Extension the car in which Kulkarni and RK Anand were travelling did not stop anywhere except at the red lights on the crossings. She also averred that all along the way she followed the car in her own vehicle and it always remained in her sight. On the same day Kulkarni told her that he was scheduled to meet RK Anand in his office at South Extension Part II. They together went to South Extension and from there Kulkarni telephoned RK Anand. He told her that he was asked to wait there at a particular spot where someone would come to meet him. After a short while Bhagwan Sharma arrived there whom she knew from before as an advocate associated with RK Anand. At that time they were in her vehicle. She `wired' Kulkarni, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as over. She then stated about Kulkarni's interview (without stating the date on which it was recorded) on camera in the NDTV studio in which he spoke about why and how he carried out the stings. Coming back to the telecast she said that she met Kulkarni on the dates of his appearance in the trial court on May 14, 17 and 29 but was not able to persuade him to agree to the telecast. He was not willing to give his consent even on May 29 but then the people at NDTV felt that his stand was quite contradictory to the objective avowed by him for carrying out the stings with the help of NDTV; by that date his examination-in-chief was over and he was also provided with police protection. Taking all those facts and circumstances into account it was decided to go ahead with the telecast regardless of Kulkarni's objections. The programme was, accordingly, telecast on May 30, 2007. In course of the telecast the anchor of the show engaged with RK Anand and presented his version too before the viewers. IU Khan was similarly tried to be contacted but he was indisposed. In the end the affidavit gave a list of all the materials submitted in the court along with it. 39. In Poonam Agarwal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 48. 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. 49. 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Court as the programmes telecast by it on May 30, 2007 (and on subsequent dates) clearly violated the sub-judice rule. On this issue, however, he was strangely ambivalent; he would not file an application before the Court for initiating contempt proceedings against the TV channel but `invite' the Court to suo moto take appropriate action against it. He next submitted that the Court should rein in and control the mass media in reporting court matters, especially live cases pending adjudication before the court, arguing that media reports mould public opinion and thereby tend to goad the court to take a certain view of the matter that may not necessarily be the correct view. He also urged the Court to lay down the law and guidelines in respect of stings or undercover operations by media. After an elaborate discussion the High Court rejected all the contentions of the contemnors based on these issues. Before us these issues were not raised on behalf of the appellants. But we must observe we fail to see how those issues could be raised before the High Court as pleas in defence of a charge of criminal contempt for suborning a witness in a criminal trial. In the overall facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal CDs for examination by the Central Forensic Science Laboratory. 54. Besides this, RK Anand filed a number of interlocutory applications in course of the proceedings. Only three of those are relevant for us having regard to the points raised in the hearing of the appeal. Those were: (I) Crl.M. No. 13782 of 2007 filed on December 3, 2007 for summoning Poonam Agarwal for cross-examination, (II) Crl.M. No. 4010 of 2008 filed on March 31, 2008 for initiating proceeding of perjury against NDTV and Poonam Agarwal for deliberately making false statements on affidavits and fabricating evidence and (III) Crl.M. No. 4150 of 2008 filed on April 2, 2008 asking the Court to direct NDTV to place all the original microchips before it and to furnish him copies directly reproduced from those chips. Apart from the above, RK Anand also filed before the High Court on March 31, 2008 an application in the nature of written arguments. 55. On conclusion of oral submissions, on April 5, 2008 the Court, in presence of the three contemnors and their counsel, viewed all the original materials of the sting operations submitted before it by NDTV. In the order passed on that date it recorded the proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence, rejected the petition for proceeding against NDTV for perjury. In regard to the other petitions the Court observed that those were moved in desperation and for exerting pressure on NDTV and Poonam Agarwal. The Court further observed that the original chips were in the safe custody of NDTV and there was no need for those chips to be deposited in Court. The contents of the microchips were viewed by the proceedees and the CDs onto which the microchips were copied were handed over to them. The proceedees, therefore, had no cause for grievance and the submission to send the microchips for forensic examination or for directing NDTV to submit the original microchips before the High Court had no substance or merit. 58. 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: 59. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 62. Taking the case of RK Anand first we go to the sting done on him on May 6, 2007 when Kulkarni met him in the VIP lounge at the domestic terminal of IGI Airport, Delhi. Here, it needs to be recalled that as Kulkarni was behind the camera (which was fixed to his shirt front) he is not seen in the picture. What one sees and hears are the pictures of whomsoever he is engaged with and their voices. The video begins with Kulkarni approaching the guard at the entrance of the airport building and asking him about the public address system from where he could contact RK Anand who was inside the airport building in the VIP lounge. The following are the extracts from the transcript of the sting recording of the meeting that would give an idea how the meeting between the two took place and what was said in the meeting. THE EXCHANGE BETWEEN KULKARNI & RK ANAND: Kulkarni: E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anand: yahan kyon milte ho phir? Kulkarni: Yahan koi nahi dekhta...acha abhi kya karna hai batao. Anand: Ab dekho tum xxxx tum xx .paise xxxxx Kulkarni: Main....yeh sab main kaise boloonga...ab yeh sab drama yeh kar rahe hai na...drama kar rehe hai poora hi...ab dekho jo hua so hua.... Anand: Baat to tumhare samne karonga, peeche to karongaa nahi.... Kulkarni: Vo to mainbhi janta hoo Anand: Samne baat hogi tumhare Kulkarni: Kal kya mere ko nikaal rahe ho kya...311 se? Anand: Nikal doo? Kulkarni: Nahi..nahi mat nikalna xxx Anand: Nahi Nikalta Kulkarni: Nahi Nahi mat nikalna..withdraw karva lo na aap...jab main aapke saath hoo, jo marzi karne ke liye tyaar hoo. to yeh kaye ke liye High Court main laga diya aapne..aur mere upar aapko itna bhi bharosa nahi hai kya.....theek hai gussa ho jata hoo main xxxx.. Anand: Nahi Nahi Kulkarni: Lekin aana hai.....depose karna hai. Anand: Ab usse kya baat karni hai...batao, Reasonable baat karo. Kulkarni: Aap decide karo. Anand: Tum decide karo. Anand: Woh to you decide." Kulkarni: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; You were enjoying. Not that you were in a problem..uski to dikkat hai bechare kixxxx Kulkarni: Nahi Nahi..I'm also not interested. Aisi baat nahi hai.. Anand: Kabhi kisi ka bura nahi kara karo..aise bhala karne se hi aadmi to acha rehta hai..kisi ko jhoota nahi phasana chahiye..nikal dena chahiye... Kulkarni: Chalo theek hai. Aap ke kehne par main kuch bhi karne ke liye tayaar hoo..aur inki saari galat information hai. Anand: Aage jake bhi bhagwan ko jawaab dena hota hai yaar..aage bhi jawaab.... kya fayda karne..xxx Anand: Chhuraane se phir bhi ache rehta hai..phasane seto (abuses) bura hi kaam hota hai... main to kisi main interested hi nahi hoo..kisiko phasane main... Kulkarni: nahi vo to mujhe bhi pata hai... Anand: In logo ne Narsimha Rao ko phasaya..acha thodi hua tah vo..vaapis chhuraya tha humne..kya fayda hua.. Kulkarni: Main aajo baajo main paune aath baje..aap mere ko bula lena Anand: Give me a call at seven forty five.. Kulkarni: Ji.. Anand: On my office number. Kulkarni: Phir mere khayaal se 311 udega nahi na, blood sample ka u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (who stayed with Kulkarni till Lovely came there) and then between Kulkarni and Lovely. The recording of the third sting further makes it evident that Kulkarni was trying (at least for the purpose of the sting) to sell himself off in favour of the accused Sanjeev Nanda for a price that he left to be fixed by RK Anand. However we see no reason to advert to the third sting, first because RK Anand was not personally present in the meeting and secondly and more importantly because the charge is fully established against him on the basis of the two stings done on him personally. This is of course, provided the recordings of the two stings truly and faithfully represent what actually transpired in those two meetings. Submissions on behalf of RK Anand: 65. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e vs. Prashant Bhushan, Advocate (2001) 6 SCC 735 and (iv) S. Abdul Karim vs. NK Prakash and others (1976) 1 SCC 975 68. 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: 69. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st be duly identified by the maker of the record or by other who recognise his voice. In other words, it manifestly follows as a logical corollary that in the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. (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." 73. In R vs. Stevenson too the Court was dealing with a tape recorded conversation in a criminal case. In regard to the admissibility of the tape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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." 75. On the different issues germane to the admissibility of ESI Mr. Ahmed also referred to a decision of the District Court of Maryland, United State in Civil Action No. PWG-06-1893, Jack R. Lorraine and Beverly Mack vs. Markel American Insurance Company (downloaded from the internet). Mr. Ahmed also cited before us an article captioned `The Sedona Conference . 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 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. 76. He also invited our attention to an article appearing in The Indian Police Journal, July- September 2004 issue under the caption "Detection Technique of Video Tape Alteration on the Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting to send the microchips for forensic examination also met with the same fate. 79. 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. 80. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity 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] LIVE EXCHANGE BETWEEN TV ANCHOR & RK ANAND: "India 60 Minutes (BMW Special) 8 PM" Segment 2 Sonia: We have RK Anand, on line with us. Mr. RK Anand, you have watched that report, what's your defence? RK Anand: My defence, what can be the defence you tell me. See, he just came to me and he was making a joke that should I make a demand for Rs. 2.5 crores and I said what the hell are you talking, you would want any amount you want ten, I meant this jokingly I'd not serious manner. I thought what the hell you want and I never invited him I was going out he must have come there to meet me and I don't know what kind of story if being made my NDTV on this channel. xxxxxxxxxxxxxxxxxxx Sonia: But Mr. Anand if you have a witness who has come up, you have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over two times on NDTV. The camera doesn't lie sir, u were meeting the prosecution's witness not once but twice, sir, how was this appropriate, how can you defend this sir? Anand: Barkha, we should talk in the right perspective. One must understand that this witness is a blackmailer, we have been fighting in the High Court even today that this witness should not be examined because he has been blackmailing us for the last so many years and when I was going out of Delhi, he appeared suddenly at the airport, and starts talking to me and say should I make it 2.5 crores. I laughed at him and what the hell are you talking, u demand 5 crores, I'll cross- examine you. This is my first reaction to that one. Barkha: But Mr Anand if he's a blackmailer, why did you meet him a second time in your own car a second time outside the Delhi High Court, if he's a blackmailer? Anand: I have not met him in my car I'm telling you, this is not correct. Barkha: Did u meet him a second time? Anand: No I did not meet him Barkha: Sir our investigation reveals that you met him at the Delhi airport and then again a second time conversation between you and him takes place inside a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him in the car or anywhere else for the second time. However, as we shall see presently the denial was quite false. 85. 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. 86. It is noted above that immediately after the telecast RK Anand sent a legal notice to NDTV threatening legal actions against them and demanding a huge sum as compensation. NDTV gave its replay to the legal notice and thereafter RK Anand didn't pursue the matter any further. Meeting with Kulkarni in car admitted: 87. RK Anand filed his reply affidavit in response to the notice issued by the Court on October 3, 2007. In paragraph B of the affidavit he denied, "each and every part of alleged tape conversation and CDs produced before the Court in response to order passed by this Court in relation to telecast of BMW exposing thereby denying each part of the conversation". He further stated that the whole tape wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined before it on May 14, 17 & 29. Referring to sting recordings to show innocence: 90. Further, interestingly, though calling the sting recordings fabricated, manufactured, and distorted, he also relies on the very same sting recordings to make out some point or the other in his defence. For example, in paragraph S of the affidavit it is stated as follows: "S. That in fact, this alleged witness Sunil Kulkarni had earlier attempted to meet the Respondent in his office. It is a matter of chance that Shri Amod Kanth the then Director General of Police, Arunachal Pradesh was present with the Respondent in his office. Sunil Kulkarni was rebuffed, rebuked and was asked to leave Respondent's office in the presence of Shri Kanth. Thereafter, Sunil Kulkarni was physically thrown out from the office of Respondent. Shri Amodh Kanth also rebuked him for his conduct. This fact stands corroborated by the transcript in which it has been stated by Sunil Kulkarni as under:- "Kul: mujhe koi to message nahi mil raha tha. Phir panga yeh ho raha ki when u told me I don't want to discuss (mujhe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement in a particular manner not at the instance of the deponent." Further in Paragraph 23 "23.........The below noted conversation would substantiate the stand of the deponent. "Kul: kitna mango. Anand: chodo...baat samjha kar...aadmi ki zindagi main aur Bhi bade kaam aate hain. Aisa nahi karte" "The whole conversation about reasonableness was in the form of an admonishment and advice so that no money is demanded. If the deponent wanted to deal with the witness or influence the witness or negotiate the terms of settlement, at that point of time, the deponent could have discussed since the demand of 2.5 crores was already allegedly made by the witness but categorically telling the witness to not to talk about the money and reminding of the relations would negate the discussion about the money part in the whole transcript. The reference to the utterances by Sunil Kulkarni. Kul: "isme bachana hain usko sanjeev ko.. Anand:&nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he alleged discrepancies in the CDs produced before the Court and supplied to the appellants occurred primarily due to conversion of the recorded material from chips into CDs, via the intermediary medium of tapes. Shri Singh further explains the gap occurring at certain points of the recording as due to displacement of the ear-plus connector i.e. the device uses to attach the button lens and the microphone with the recording device." 94. Mr. Altaf Ahmed also made the grievance that the High Court failed to consider his defence. According to him NDTV had conceived the sting operation as pre-empted measure against Shri Anand, who was consulted in his professional capacity in connection with a matter in which NDTV in collusion with one Mrs. Sumana Sain and IRS officer was indulging in massive tax evasion. The materials in support of the allegations and in particular RK Anand's connection with the matter are so vague and tenuous that we don't consider it worthwhile to go into that question. 95. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till 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: 97. The recording of this sting operation is more than an hour long. But the transcript of this sting recording submitted to the Court by NDTV is confined only to the exchange between IU Khan and Kulkarni. In the absence of the full transcript it becomes difficult and cumbersome to see what transpired between Kulkarni and Deepak Verma immediately before and after the meeting with their subject. In our view that part of the sting recording was also highly relevant and important for judging the true import of the exchange that took place between Kulkarni and IU Khan. We are surprised that the High Court did not notice thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l did not have any other material in connection with the sting operation in question. On June 6, 2007 she submitted the transcripts of the recordings. In the statement made on that date she said that she had earlier submitted six CDs. Those CDs were duplicated from four spy camera chips which were recorded on different occasions. After copies of the CDs were given to the proceedees as directed in the order dated August 7, 2007 issuing show cause notices to them, a grievance was made before the Court that they were supplied only five CDs, though the number of CDs submitted before the High Court was six. It was then explained on behalf of NDTV that the contents of two CDs were copied onto a single one and thus the number of CDs was reduced from six to five. It was of course stated that a fresh set of six CDs each would again be supplied to all the three proceedees. The High Court apparently accepted the explanation given by NDTV (High Court order dated 24.9.2007). But the lapse was far more serious as would appear from the affidavit dated October 1, 2007 filed by Poonam Agarwal to explain the position. In her affidavit she stated that in the first sting (on IU Khan) two spy cameras w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y affidavit in response to the show cause notice. 101. In those circumstances it was not wrong for IU Khan to state in paragraphs 14 and 15 of his memorandum of appeal as under: "14.... 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." "15. 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..." Lapses have no effect on RK Anand's case or even on case of IU Khan: 102. We have recounted here some of the noticeable lapses committed by NDTV in the proceedings that were overlooked by the High Court. Having regard to seriousness of the proceeding we should have wished that it was free from such lapses. But it needs to be made absolutely clear that the irregularities pointed out above were in regard to the first sting concerning IU Khan. These in no way affect RK Anand or alter his position. The discussions and findings recorded above in respect of RK An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sakta hai, pur mode of investigation to determine nahi kar sakta. Khan: Exactly, they cannot decide the mode of investigation SOMEBODY ENTERS THE CHAMBER Kulkarni: Khan Sahab, ek minute, chale jata hoo, mein sham to ghar pe xxxxaa jaon ga. Khan: Ha, ha who to ana hi hai, ghar pe nahi xxx Kulkarni: Who to abhi dilli mein aya hoo to aya hoo, ek second. Khan: In Delhi, you're our guest. Kulkarni: Inka nahi! Khan: Na inke nahi. Khan: Aapka aur hamara personal effort/rapport (not clear) hai Kulkarni: Who to alag hi baat hai. Khan: Aur, bhai yaar thanda peeke jana. Kulkarni: Nahi thanda nahi, bus ek second khali, kyonki wahi xxxx THEY COME OUT O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken place between him and Kulkarni. In his first response, that is, in the interview given to NDTV on the morning following the telecast he said that he did not deny anything at all, he did not deny (the utterances) but the inferences sought to be drawn were totally unfounded and wrong. When he said `Bade Saheb' he meant some high officer in the police headquarter. He also said that was the way Kulkarni used to refer to superior officers in the police headquarter(s) and that is how he had referred to them in his deposition before the trial court. When the trial court asked Kulkarni to clarify he explained that Bade Saheb meant a superior officer of the police headquarter. The words Bade Saheb, according to IU Khan, did not in any way refer to RK Anand. 107. And this was broadly his defence before the High Court. High Court dealing with IU Khan Defence: 108. The High Court did not accept his defence. The High Court held that there was great familiarity between IU Khan, Kulkarni and RK Anand. In this regard it observed as follows; "We have noted above that there are several references to Mr. Khan in the conversations of Mr. Kulkarni with Mr. Anand. We cannot overlook these s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that it is Mr. Anand. There is no suggestion that this part of the video recording is doctored or morphed......". (emphasis added) 113. The High Court further observed that as IU Khan was fully aware that Kulkarni, a prosecution witness was on highly familiar terms with a senior defence lawyer RK Anand, he was obliged to inform the prosecution about it and by not doing so he clearly failed in his duty as a prosecutor who was expected to be fair not only to his client but also to the Court. His conduct was, therefore, plainly unbecoming of a prosecutor. The High Court then proceeded to consider whether the conduct of IU Khan amounted to a criminal contempt of court. In this regard the Court refers to the conversation between IU Khan and Kulkarni taking place outside the chamber in which a second meeting was fixed up for the following evening with IU Khan giving Kulkarni the inducement of good scotch whisky. From the exchange between the two the court inferred that the extent of familiarity between the two was rather more than normal. IU Khan was aware that Kulkarni was on equally, if not more familiar, terms with RK Anand. Coupled with this his failure to inform the prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... karni when they were returning after meeting with IU Khan, relied upon by the High Court, there is another material, for whatever its worth, that doesn't find any mention in the High Court judgment. It is Kulkarni's statement in his interview recorded at the NDTV studio. 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." 122. 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. 123. 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution. It was based on the premise that the prosecution was colluding with the defence in the effort to save the accused in the BMW case. In that situation for Kulkarni, who for his own reasons was anxious to get NDTV's help for doing the sting, it was natural to find out and show to Deepak Verma some link between IU Khan and RK Anand irrespective of whether or not there was, in reality, any link between the two. There is no way to find out whether Kulkarni really believed that by `Bade Saheb' IU Khan meant RK Anand (Like everything else even on this issue he changed his stand from time to time!) or he just wanted Deepak Verma to believe so. But even if Kulkarni really understood Bade Saheb to mean RK Anand, that would not change the position much. For our purpose it is not important what Kulkarni or Deepak Verma or any one else understood (truthfully or otherwise!) by that expression. One may use an expression to mean a certain thing but to the listener it may mean something quite different. What is important here is to judge what IU Khan meant when he used that expression. In our view, on the basis of the exchange between Kulkarni and Deepak Verma, it will be highly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedees 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. 128. Further, as noticed above, the High Court, for arriving at the finding that there was a high degree of familiarity among IU Khan, Kulkarni and RK Anand has repeatedly used the transcripts of the meetings between Kulkarni and RK Anand. It is indeed true that in the exchanges between Kulkarni and RK Anand there are many references to IU Khan. That may give rise of a strong suspicion, of a common connection between the three. But having regard to the charge of criminal contempt any suspicion howsoever strong cannot take the place of proof and we don't feel it wholly prudent to rely upon the exchanges between Kulkarni and RK Anand to record a finding against IU Khan. 129. Further, according to the High Court, the essence of culpability of IU Khan was his omission to inform the prosecution and the Court "that one of its witnesses was more than an acquaintance of defence lawyer". 130. Mr. P. P. Rao submitted that the High Court co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hips 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. 134. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 136. 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 Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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. 138. The contention that the direction debarring a lawyer from appearing before it or in courts subordinate to it is beyond the jurisdiction of the High Court is based on the premise that the bar is akin to revocation/suspension of the lawyer's licence which is a punishment for professional misconduct that can only be inflicted by the Bar Council after following the procedure prescribed under the Advocates Act. The contention finds support from the Constitution Bench decision of this Court in Supreme Court Bar Association vs. Union of India, (1998) 4 SSC 409. In paragraph 37 of the decision the Court observed and held as under: "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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f court vests exclusively in the courts." Again in paragraph 80 it observed: "80. 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." 139. The matter, however, did not stop at Supreme Court Bar Association. In Pravin C Shah vs. K. A. Mohd. Ali and Another, (2001) 8 SCC 650, this Court considered the case of a lawyer who was found guilty of contempt of court and as a consequence was sought to be debarred from appearing in courts till he purged hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guilt it does not mean that one cannot purge the guilt at all. The first thing to be done in that direction when a contemnor is found guilty of a criminal contempt is to implant or infuse in his own mind real remorse about his conduct which the court found to have amounted to contempt of court. Next step is to seek pardon from the court concerned for what he did on the ground that he really and genuinely repented and that he has resolved not to commit any such act in future. It is not enough that he tenders an apology. The apology tendered should impress the court to be genuine and sincere. If the court, on being impressed of his genuineness, accepts the apology then it could be said the contemnor has purged himself of the guilt." "31. Thus a mere statement made by a contemnor before court that he apologises is hardly enough to amount to purging himself of the contempt. The court must be satisfied of the genuineness of the apology. If the court is so satisfied and on its basis accepts the apology as genuine the court has to make an order holding that the contemnor has purged himself of the contempt. Till such an order is passed by the court the delinquent advocate would con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permitted. Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court could also be regulated by them in exercise of their disciplinary powers. The right to practise, no doubt, is genus of which the right to appeal and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts. The Bar Councils cannot overrule such a regulation concerning the orderly conduct of court proceedings. On the contrary, it will be their duty to see that such a rule is strictly abided by. Courts of law are structured in such a design as to evoke respect and reverence to the majesty of law and justice. The machinery for dispensation of justice accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was extensively considered. The decision in Ex. Capt. Harish Uppal was later followed in a three judge Bench decision in Bar Council of India vs. The High Court of Kerala, (2004) 6 SCC 311. 143. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act/conduct, but on the contrary shows a tendency to repeat or perpetuate the wrong act(s). 146. 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vable allegations against NDTV in general and Poonam Agarwal in particular. He stated that Poonam Agarwal had recorded his first interview on April 25, 2003 and thereafter on several other dates till the last one in the last week of May before the telecast. It is not clear on whose behalf Poonam Agarwal would take his earlier interviews because she had joined NDTV only two years prior to July 2007. He then alleged that Poonam Agarwal subjected him to "Gobel's technique" (sic. Goebbels's) to make him `illicit' (sic. elicit) certain answers `to' (sic. from) RK Anand and IU Khan in a particular manner. What is of significance in Kulkarni's affidavit, however, is that it anticipated what in the sting recordings might prove fatal for RK Anand and IU Khan and tried to do the ground work for their defence. In regard to his meeting with IU Khan, Kulkarni said that he met and spoke to him in the manner directed by Poonam Agarwal. He further said on affidavit that when IU Khan asked him if he had met `Bade Saheb' he implied some senior police official but it was Poonam Agarwal who forced him to say that IU Khan referred to RK Anand. Now, this is exactly what IU Khan s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom one Sunil Garg. In the letter it was stated that the cassette had the recording of some conversation between Lovely and Kulkarni. The cassette proved to be completely blank. Then on notice being issued to him Garg appeared in Court and made a statement on oath. He said that Kulbir Singh alias Lovely was his friend. Shortly before his death he had come to him and handed over to him to two audio cassettes saying that those contained the recordings of his conversation with Kulkarni. He had earlier sent one of the two cassettes without playing it on the recorder. He later came to learn from the newspaper reports the cassette was blank. He then played the other cassette and found it had the recording of some conversation between his friend Lovely and someone else. He recognised the voice of his friend Lovely. He submitted the other cassette in the High Court. 155. We would have completely ignored Kulkarni's affidavit and Garg's audio cassettes as foolish and desperate attempts to create some defence, not worthy of any attention. But there is something more to come that is impossible to ignore. "REQUEST" FOR RECUSAL: 156. Of all the obstructive measures adopted before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nection it was alleged that the Chief Justice had around him a coterie of Judges that included Sarin J. On the arrest of a sitting judge of the Delhi High Court by the CBI the media had gone to Sarin J. for his comments and even this, it was stated, might lead him to harbour ill will against the applicant. In a civil case for damages arising from the BMW case the matter was settled between the parties (one of the victims of the accident on the one side and the family of the accused Sanjeev Nanda on the other). But Sarin J. who was a member of the bench before which the matter came up for recording the settlement, did not allow it to be said in the compromise petition that the accident was caused by a truck and not by any car. It showed, according to the applicant, that Sarin J. had some pre-conceived notion that the accident was caused by the car driven by Sanjeev Nanda. The bench had appointed as amicus curiae a lawyer personally hostile to the applicant. And lastly the applicant had moved the Chief Justice on the administrative side to assign the matter to some other bench. 158. In one glance, the grounds on which recusal was asked for appear fit to be rejected out of hands. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting / Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office." 159. The above passage, in our view, correctly sums up what should be the Court's response in the face of a request for recusal made with the intent to intimidate the court or to get better of an `inconvenient' judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice. We are constrained to pause here for a moment and to express grave concern over the fact that lately such tendencies and practices are on the increase. We have come across instances where one would simply throw a stone on a judge (who is qui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely unsuccessful. It left a lasting shadow on the proceeding. 163. Here, it may be noted that apart from filing an application for its clarification/review before the High Court, the order rejecting the recusal application was also sought to be challenged before this Court by filing SLP (Crl) No. 7374 of 2007. The SLP was, however, withdrawn on December 14, 2007. Nevertheless, the challenge to the High Court order rejecting the recusal application is still not given up and paragraphs H & I of the Grounds in the present Memo of appeal expressly seek to assail that order. 164. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, 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. 168. Mr. Gopal Subramanium submitted that this case raised the important issue regarding the nature and extent of the right of the media to deal with a pending trial. He submitted that a sting operation was, by its nature, based on deception and hence, overriding public interest alone might justify its publication/telecast. Further, since the operation was based on deception the onus would be heavy on the person behind the sting and publication/telecast of the sting materials to establish his/her bona fide, apart from the genuineness and truthfulness of the sting materials. In regard to sting operations bona fide could not be assumed. In this case, therefore, it was the duty of the High Court to inquire into and satisfy itself whether the sting operation was a genuine exercise by the TV channel to exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dom of speech and expression, subject of course to reasonable restrictions, was indeed one of the most important rights guaranteed by the Constitution of India. But the press or the electronic media did not enjoy any right(s) superior to an individual citizen. Further, the right of free and fair trial was of far greater importance and in case of any conflict between free speech and fair trial the latter must always get precedence. Mr. Rao submitted that though the law normally did not permit any pre-censorship of a media report concerning an ongoing criminal trial or sub-judice matter, any person publishing the report in contravention of the provisions of law would certainly make himself liable to the proceeding of contempt. Mr. Rao further submitted that the immunity provided under section 3 (3) of the Contempt of Courts Act was not available to the TV channel in terms of proviso (ii) Explanation (B) to sub-section (3) and thus the telecast of the sting programme by NDTV clearly fell in the prohibited zone under the Act. He further submitted that in such an event, a plea of `larger public good' was not a legal defence. In support of his submission he cited several decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of justice and on which side the balance tilts. In support of his submission he relied upon a decision of the House of Lords in Re Lonrho plc and others, [1989] 2 All ER 1100 paragraphs 7.2 and 7.3 at 1116. 172. 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: 173. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the BMW trial and the state of the criminal administration of justice in the country (as perceived by the TV channel and the interviewees). There was nothing in the programme to suggest that the accused in the BMW case were guilty or innocent. The programme was not about the accused but it was mainly about two lawyers representing the two sides and one of the witnesses in the case. It indeed made serious allegations against the two lawyers. The allegations, insofar as RK Anand is concerned, stand established after strict scrutiny by the High Court and this Court. Insofar as IU Khan is concerned, though this Court held that his conduct did not constitute criminal contempt of court, nonetheless allegations against him too are established to the extent that his conduct has been found to be inappropriate for a Special Prosecutor. In regard to the witness the comments and remarks made in the telecast were never subject to a judicial scrutiny but those too are broadly in conformity with the materials on the court's record. We are thus clearly of the view that the sting programme telecast by NDTV cannot be described as a piece of trial by media. Stings & telecast of sting programmes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-section (1) of section 3 provides immunity to a publisher of any matter which interferes or tends to interfere with, or obstructs or tends to obstruct the course of justice in any civil or criminal proceeding if he reasonably believed that there was no proceeding pending. A sub- section (3) deal with distribution of the publication as mentioned in sub-section (1) and provides immunity to the distributor if he reasonably believed that the publication did not contain any matter which interfered or tended to interfere with, or obstructed or tended to obstruct the course of justice in any civil or criminal proceeding. The immunity provided under sub-section (3) is subject to the exceptions as stated in the proviso and explanations to the sub-section. We fail to see any application of section 3(3) of the Contempt of Courts Act in the facts of this case. In this case there is no distribution of any publication made under sub-section (1). Hence, neither sub-section (3) nor its proviso or explanation is attracted. NDTV did the sting, prepared a programme on the basis of the sting materials and telecast it at a time when it fully knew that the BMW trial was going on. Hence, if the prog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iencies (or rather the excesses) in the telecast. Mr. Subramanium spoke about the `slant' in the telecast as `regrettable overreach'. But we find many instances in the programme that cannot be simply described as `slants'. There are a number of statements and remarks which are actually incorrect and misleading. In the first sting programme telecast on May 30, 2007 at 8.00 pm the anchor made the opening remarks as under: "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..." 182. 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. 183. Further, in the 9 o'clock telecast after some brief introductory remarks, clips from the sting recordings are shown for several minutes and a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew from the case). 192. The affidavits filed on behalf of NDTV are completely silent on these aspects. 193. 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. 194. 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. 195. We have recounted above the acts of om ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. The bitter truth is that the facts of the case are manifestation of the general erosion of the professional values among lawyers at all levels. We find today lawyers indulging in practices that would have appalled their predecessors in the profession barely two or three decades ago. Leaving aside the many kinds of unethical practices indulged in by a section of lawyers we find that even some highly successful lawyers seem to live by their own rules of conduct. We have viewed with disbelief Senior Advocates freely taking part in TV debates or giving interviews to a TV reporter/anchor of the show on issues that are directly the subject matter of cases pending before the court and in which they are appearing for one of the sides or taking up the brief of one of the sides soon after the TV show. Such conduct reminds us of the fictional barrister Rumpole, `the Old Hack of Bailey', who self deprecatingly described himself as an `old taxi plying for hire'. He at least was not bereft of professional values. When a young and enthusiastic journalist invited him to a drink of Dom Perignon, vastly superior and far more expensive than his usual `plonk', `Chbteau Fleet Street&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 204. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where more positive intervention is called for, if the matter is at the stage of investigation the High Court may call for status report and progress reports from police headquarter or the concerned Superintendent of Police. That alone would provide sufficient stimulation and pressure for a fair investigation of the case. In rare cases if the High Court is not satisfied by the status/progress reports it may even consider taking up the matter on the judicial side. Once the case reaches the stage of trial the High Court obviously has far wider powers. It can assign the trial to some judicial officer who has made a reputation for independence and integrity. It may fix the venue of the trial at a proper place where the scope for any external interference may be eliminated or minimized. It can give effective directions for protection of witnesses and victims and their families. It can ensure a speedy conclusion of the trial by directing the trial court to take up the matter on a day-to-day basis. The High Court has got ample powers for all this both on the judicial and administrative sides. Article 227 of the Constitution of India that gives the High Court the authority of superintenden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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