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TMI Blog2008 (8) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; NDTV ' carried a report relating to a 'sting' operation. The report concerned itself with the role of a defence lawyer and the Special Public Prosecutor in an ongoing Sessions trial in what is commonly called the 'BMW case'. 3. On 31st May, 2007 a Division Bench of this Court, on its own motion, registered a writ petition being WP (Crl.) No. 796 of 2007 since it was of the opinion that if the reported contents were true, they raise serious issues concerning criminal justice administration. Under these circumstances, the Division Bench felt it expedient and in the interest of justice to ascertain the full facts from NDTV. 4. The Division Bench issued a direction to the Registrar General to collect all materials that may be available in respect of the telecast and also directed NDTV to preserve the original material including the CD/video pertaining to the sting operation. 5. It appears that simultaneously the learned Additional Sessions Judge before whom the BMW case was pending also instituted an inquiry into the contents of the report and on 1st June, 2007 the Managing Editor of NDTV produced before him three chips and five CDs containing the materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused (including Mr. Nanda) and the trial commenced before the Additional Sessions Judge. 10. Among others, the prosecution cited Mr. Kulkarni as its witness, but on 30th September, 1999 he was dropped from the list of witnesses, apparently on the instructions of the police. 11. Much later, by an order dated 19th March, 2007 the learned Additional Sessions Judge suo motu issued a summons to Mr. Kulkarni to depose as a court witness. The summons was returnable on 14th May, 2007 and the telecast by NDTV is mainly concerned with the events of this period. It may be mentioned for the record that Mr. Kulkarni was apparently not served with the summons, but appeared in Court and his examination in chief was recorded on 14th and 17th May, 2007 and he was partly examined by Mr. I.U. Khan (Special Public Prosecutor in the BMW case) on 29th May, 2007. 12. Earlier, on 28th April, 2007 a sting operation was carried out by Mr. Kulkarni and Mr. Deepak Verma of NDTV in the chamber of Mr. I.U. Khan in the Patiala House Courts. Mr. Kulkarni carried a hidden camera in his shirt (a button camera) and Mr. Verma also carried a hidden camera in a bag (a bag camera). The chip containing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstructions of Ms. Poonam Agarwal and forced me to converse with me (sic) regarding the case. 19. The sum and substance of Mr. Kulkarni's affidavit is that the sting operation was masterminded by Ms. Agarwal for her ulterior purposes and to boost the TRP ratings of NDTV and that Mr. Kulkarni was 'trapped' into participation. 20. On 7th August, 2007 on a consideration of the material available, that is, the CDs, the transcripts of the various programmes, viewing of the edited and unedited footage and the affidavits on record (other than the affidavit of Mr. Kulkarni) the Court noted that meetings took place on 28th April, 2007, 6th May, 2007 and 8th May, 2007 between Mr. Sunil Laxman Kulkarni, Mr. I.U. Khan Special Public Prosecutor, Mr. R.K. Anand, Senior Advocate and learned Counsel for the accused, Mr. Sri Bhagwan Sharma, Advocate and colleague of Mr. Anand and Mr. Lovely a representative of Mr. Anand and that it was prima facie satisfied that these persons 'have willfully and deliberately tried to interfere with the due course of judicial proceedings and administration of justice by the courts.' It was observed that prima facie their acts and conduct we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing or undercover operations such as the ones that we are concerned with; fourthly, it is imperative for us to appreciate the nature of criminal contempt proceedings, with particular reference to the standard and onus of proof, and finally, the video recordings that are the primary material against the alleged contemnors are not admissible in evidence and are even otherwise unreliable. Mr. Anand has also filed certain interlocutory applications, which we will be dealing with later in the judgment. Has NDTV committed contempt of Court 25. Mr. Anand submitted that the expose by NDTV on 30th May, 2007 actually cast him in a bad light in as much as aspersions were made on his professional integrity and even otherwise it attacked his professional competence. According to him, viewers were made to believe that he is capable of resorting to unethical conduct to save his client from conviction (assuming his client is guilty). By casting aspersions on him and attacking his professional integrity and competence, NDTV has prevented him from fearlessly discharging his duties as an advocate for the cause of his client. Thus, it was contended, that actually NDTV had interfered in the admin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us in respect of criminal contempt having been committed by the alleged contemnors. This is because of overwhelming and unimpeachable evidence on record beckoning and calling for maintaining the purity of the stream of justice especially when it is sought to be polluted by those having a pivotal role within the system. 29. In support of his contention, Mr. Anand relied upon Ananta Lal Singh v. Alfred Henry Watson AIR1931Cal257 , Telhara Cotton Ginning Co. Ltd. v. Kashinath Gangadhar Namjoshi, Thirumalaiappa v. Kumaraswami AIR 1956 Mad 621, In re Bhola Nath AIR1961Pat1 , Damayanti v. S. Vaney AIR1966Bom19 , Delhi Tamil Education Association v. J. Samimalai 97(2002)DLT352 and an unreported decision of this Court H. Syama Sundara Rao v. Union of India 30. Ananta Lal Singh is important because it deals with allegations made in the mass media (in a newspaper) during the pendency of a trial. The Court noted and accepted the argument of learned Counsel that a tendency to interfere with the due course of justice may be noticed in two ways: one form of contempt (which the Court watches very narrowly) is of 'prejudicing mankind against persons who are on their trial raising an atm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he course of justice, will constitute contempts. Offences of this nature are of three kinds - namely, those which (1) scandalize the Court; or (2) abuse the parties concerned in causes there; or (3) prejudice mankind against persons before the cause is heard. Under the first head fall libels on the integrity of the Court, its Judges, officers or proceedings; under the second and third heads anything which tends to excite prejudice against the parties, or their litigation, while it is pending. For example, attacks on or abuse of a party, his witnesses or solicitor, constitute contempts, though a mere libel on a party, not amounting to an interference with the course of justice, does not, the party being left to his remedy by action. 34. We will have occasion, a little later when we are dealing with the merits of the case, to consider a fourth category of offence, namely, where both parties (the prosecution and the defense) collude to defeat the course of justice thereby virtually playing a fraud upon the Court. 35. Bhola Nath is not of any importance in so far as we are concerned since that decision related to contempt in the face of the Court. What is of relevance, though, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to interfere in it or tend to do so to change or alter the course of justice. It must be a real and not a casual and imaginary and its degree must be such as to set an Advocate thinking and to constrain him to throw up his brief depriving the Court of his assistance to do justice. 39. Syama Sundara Rao reiterates and reaffirms the principles mentioned in the decisions referred to above, and in a sense extends the frontiers of contempt jurisdiction. It was held: However, any attempt made by a party to pressurize the opposite party or its advocate to withdraw a plea taken in the course of proceedings pending in court, amounts to direct interference with the administration of justice. Such an attempt, in our opinion, also takes in its fold, issuance of notices and filing of applications, etc. containing scurrilous, disparaging and derogatory remarks against the opposite party and its advocate. In preventing the respondent from putting forward its defense and pleas as may be deemed by it to be relevant for the purposes of adjudicating the case in hand, it cannot be a defense to state that any party ' enjoys a privilege to pressurize the opposite party, much less his/her advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a real prejudice that the administration of justice may be interfered with or prejudicially affected or compromised. To put it negatively, the act complained of must not have only a theoretical tendency of preventing the advocate from performing his functions fearlessly. 6. It is also the duty of the Court to protect its officers (including advocates) from being maligned or suffer calumnies of a degree that interfere with the due course of justice. 7. The principles enunciated above are applicable only in respect of pending causes or causes that are imminent. Where the proceedings have terminated, an advocate is not entitled to complain of contempt of Court, but his remedy lies in taking recourse to the normal legal channels and processes of law. 8. Similarly, there is a thin line between preventing or tending to prevent an advocate from performing his duties and heaping calumny upon him. The latter does not necessarily interfere or tend to interfere in the administration of justice and may be otherwise actionable at law. 42. Since Mr. Anand did not press for initiating proceedings for contempt of Court against NDTV or its reporter, we need not decide wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was made in the telegram to take action against the reporter and other persons behind the conspiracy. 45. As far as Mr. Anand is concerned, he stated in his affidavit dated 3rd October, 2007 that he was handed over a file containing serious allegations of a tax fraud committed by NDTV and some other entities. He was in the process of settling a First Information Report to the police and initiating a public interest litigation in connection with the tax fraud. NDTV was aware of the fact that Mr. Anand was in possession of the relevant papers and so the telecast was made on 30th May, 2007 to deter him from bringing the tax fraud out in the open. 46. As far as we are concerned, the alleged motive behind NDTV's expose (as detailed by learned Counsel for Mr. Khan and by Mr. Anand) is rather thin and in any case, irrelevant. NDTV or its reporter may or may not have had a grouse or a grudge against Mr. Anand or Mr. Khan but that cannot be used as a justification by them for committing contempt of Court. The motive may have some relevance to the genuineness or authenticity of the contents of the telecast, but that is a different matter altogether and we will advert to it at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the sting operation, which it did not, except after the event. 48. We are not really concerned with journalistic norms or how the mass media 'behaves' in a given situation. This is really a matter that falls within the domain of journalists and broadcasters and their disciplinary bodies. The Courts come into the picture only if there is an allegation of transgression of the law by the media. Similarly, if there is an allegation of defamation by the media against an individual, he has a right to approach the Courts to redress his grievances. The Courts are not and cannot be expected to deal with subjective issues of bias, attitude, behavior etc. in reporting events. 49. However, since considerable arguments were advanced on the role of the media in matters such as the present, we think it appropriate to explain the legal limits for the benefit of those concerned. 50. There is no doubt, as observed by the Supreme Court in Rajendra Sail v. M.P. High Court Bar Association 2005CriLJ2585 that the reach of the media is to every nook and corner of the world, particularly these days when we have 24-hour news channels and webcasts on the Internet. The Supreme Court also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory bail in a dowry death case was declined by the Calcutta High Court and while a similar petition was pending in the Supreme Court, a magazine brought out an interview with the family of the deceased extensively giving their version of the events. This was deprecated by the Supreme Court. Similarly, in State of Maharashtra v. Rajendra Jawanmal Gandhi (1997)8SCC386 the Supreme Court observed that 'A trial by press, electronic media or public agitation is the very antithesis of the rule of law. 56. However, what is of limited importance from M.P. Lohia in so far as we are concerned is whether the Supreme Court gave its assent to the principle of 'strict liability contempt'. This is so because it is not clear from a reading of the decision whether or not the magazine was aware of the pendency of the proceedings before the Supreme Court. It is quite possible that the magazine unknowingly took an incorrect decision to publish the interview and invited strict liability contempt. 57. Our attention was drawn to Indian Council of Legal Aid and Advice v. State, WP ' No. 17595/2006 decided on 27th November, 2006 wherein this Court stated: The kind of media trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of libel should defamatory statements published about him be untrue, or if any defamatory comment made about him is unfair. This court does not consider that any real complaint can be made about the press campaign in July, 1966, eighteen months before the trial. 60. The second issue related to an interview of Savundra in February, 1967 shortly after his return to England. The Court observed that at that time it surely would have been obvious to everyone that he was about to be arrested and tried on charges of gross fraud. Commenting on the interview, it was held, 'It must not be supposed that proceedings to commit for contempt of court can be instituted only in respect of matters published after proceedings have actually begun. No one should imagine that he is safe from committal for contempt of court if, knowing or having good reason to believe that criminal proceedings are imminent, he chooses to publish matters calculated to prejudice a fair trial. On any view the television interview with the appellant Savundra was deplorable. ' None of the ordinary safeguards for fairness that exist in a court of law were observed, no doubt because they were not understood. They m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the framing of charges, it was conceded by learned Counsel appearing for the CBI that there was no evidence showing the receipt of bribe money, but the CBI was on the trail for gathering such evidence. In this context, the Court observed: This case is a nefarious example which manifestly demonstrates how the trial and justice by media can cause irreparable, irreversible and incalculable harm to the reputation of a person and shunning of his family, relatives, and friends by the society. He is ostracized, humiliated and convicted without trial. All this puts at grave risk due administration of justice. It is common knowledge that such trials and investigative journalism and publicity of pre-mature, half baked or even presumptive facets of investigation either by the media itself or at the instance of Investigating Agency has almost become a daily occurrence whether by electronic media, radio or press. They chase some wrong doer, publish material about him little realizing the peril it may cause as it involves substantial risk to the fairness of the trial. Unfortunately we are getting used to it. 64. We are unable to appreciate the relevance of this case, except to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed: Showering praise on a judgment while its confirmation was sub-judice would certainly amount to creating prejudice in the mind of the general public and would make the task of the court very difficult. In such a case if the High Court comes to a different conclusion it will be faced with an additional burden of dispelling the impression from the public mind that the approach adopted by the lower court was correct. 68. In Brig. E.T. Sen v. Edatata Narayanan AIR1969Delhi201 the allegation was that pending the trial of a complaint for libel, the respondents carried out a persistent one-sided press campaign against the cause of the petitioner with a view to poisoning the mind of the general public and thereby hampering the course of justice. Among the allegations made by the petitioner was that the report of the Court proceedings was inaccurate and misleading and there was a display of headlines of a scaring and sensational character. In this context, it was held that, Neither the press reporter nor the publisher of a newspaper can in my view, claim an indefeasible right to put his own gloss on the statements in Court by selecting stray passages out of context which may h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dren's behalf and that the purpose of the publication was to affect the outcome of the pending litigation, in that the manufacturer would be persuaded to settle for a higher figure than it would be otherwise minded. 72. Given this background, the concern of the Court was ensuring that justice would be administered impartially. The Court considered the impact of the proposed publication on the administration of justice and concluded that there are three ways in which due and impartial administration of justice may be affected: first, it may affect and prejudice the mind of the tribunal itself; second it may affect witnesses who are to be called. 'In an extreme case the comment might amount to a threat to the witness sufficient to deter him from giving evidence at all, and even where the comment is temperate and in no sense threatening, it is well known that witnesses often have difficulty in reconstructing the events of an occurrence some time previously, and it is clearly possible that comment sufficiently strong and sufficiently often repeated might persuade a witness, quite unwittingly, to adopt a version of the events to which he speaks which is not the true version a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y party and whose decision will be based on those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that once the dispute has been submitted to a court of law, they should be able to rely on their being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court. 76. Finally, on the issue of responsible journalism, Mr. Anand cited the ten principles enunciated in Reynolds v. Times Newspapers Ltd. [1999] 4 All ER 609. These principles are: (a) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. (b) The nature of the information, and the extent to which the subject matter is of public concern. (c) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. (d) The steps taken to verify the al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigative journalism'. This is in accord with our Constitutional principle of freedom of speech and expression and is in consonance with the right and duty of the media to raise issues of public concern and interest. This is also in harmony with a citizen's right to know particularly about events relating to the investigation in a case, or delay in investigation or soft- pedaling on investigations pertaining to matters of public concern and importance. 6. When a cause is pending in Court, the media may only report fairly, truly, faithfully and accurately the proceedings in the Court, without any semblance of bias towards one or the other party. The media may also make a fair comment in a pending cause without violating the sub-judice rule. 7. While trial by media ought to be deprecated, in the event any person feels victimized or unfairly treated by the media - either through a 'trial by media' or otherwise - he is not without remedy. Proceedings for defamation or injunction can always be initiated in an appropriate case. 8. It is not very clear whether the principle of 'strict liability contempt' is accepted in our jurisprudence or not. Unti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imperative for the Courts to protect a citizen from what may appear to be victimization ' this is certainly the duty if not an obligation of Courts. This is all the more important in a pending matter. For example, if a person is arrested on the suspicion of having committed a crime, it is not the function of the media to 'declare' him (by implication) innocent or guilty ' that is within the exclusive domain of the judiciary. But if the accused is subjected to a 'trial', either through the print or audio-visual medium, it may subconsciously affect the judgment of the judge, and that may well be to the prejudice of the accused ' who is, in our justice delivery system, presumed innocent until proven guilty. In such a situation, the judge must be proactive by restraining the media from carrying out a parallel trial otherwise our criminal justice delivery system will be completely subverted. Failure to do so would result in an unfortunate situation arising in some cases as will be evident from what we discuss herein below. 80. Having said this, we find it difficult to accept the contention of Mr. Anand that he was subjected to a trial. It is true that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce in order that an offence by another person may be detected. It is not right that police authorities should instruct, allow, or permit detective officers or plain clothes constables to commit an offence so that they can prove that another person has committed an offence. 84. This decision was followed in In re M.S. Mohiddin AIR 1952 Mad 561 wherein it was stated: But I have held in several cases already that there are two kinds of traps 'a legitimate trap', where an offence has already been born and is in course, and an illegitimate trap', where the offence has not yet been born and a temptation is offered to see whether an offence would be committed, succumbing to it, or not. Thus, where the bribe has already been demanded from a man, and the man goes out offering to bring the money but goes to the police and the magistrate and brings them to witness the payment, it will be 'a legitimate trap', wholly laudable and admirable, and adopted in every civilized country without the least criticism by any honest man. But where a man has not demanded a bribe, and he is only suspected to be in the habit of taking bribes and he is tempted with a bribe, just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess of development, but we feel that the views expressed by us help in a better understanding of the subject and implementation of the law. 88. In Bhupendra Singh Patel v. State (CBI), Cri. M.C. No. 59/2004 decided on 10th November, 2004 a first information report was lodged against a journalist who conducted a sting operation in which he bribed the Additional Private Secretary of a Union Minister of State with the avowed object of exposing corruption at the highest level in government. While declining to quash the first information report, this Court held that immunity is given to a bribe- giver where he is unwilling to pay illegal gratification to a public servant and approaches the police to get the public servant trapped while accepting a bribe. However, in the case under review, the accused bribed the public servant on three occasions and in not a single instance did he report the matter to the police in advance, otherwise they could have laid a legally admissible trap and apprehended the bribe takers. To make matters worse, the accused did not inform the police even after the transaction was complete. 89. Similarly, in Shri Bharadwaaj Media Pvt. Ltd. v. State, W.P. (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alleged contemnors. The evidence against the alleged contemnors is to be found in the chips and CDs ' and these need no corroboration if they are found to be authentic and not tampered with. 93. In R v. Looseley [2001] 4 All ER 897 the House of Lords dealt with 'fairness of proceedings' as occurring in Section 78 of the Police and Criminal Evidence Act, 1984 and held that the expression 'is directed primarily at matters going to fairness in the actual conduct of the trial.' This is not limited to substantive fairness but also includes procedural fairness. Therefore, if the admission of evidence has such an adverse effect on the fairness of the proceedings, then the Court may exclude it. Among the factors that the Court may take into consideration in this regard are the circumstances in which the evidence was obtained. 94. Among the more important decisions on the subject is Court on its own motion v. State 2008 (100) DRJ 144 (for convenience referred to as the School teacher case). In this case, a television news channel aired a programme on 30th August, 2007 in which it was shown that a school teacher was forcing a school girl into prostitution. Subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant was predisposed to commit the criminal act prior to first being approached by government agents. 100. The Division Bench deplored the thought of inducing a person to commit an offence which he is not otherwise likely to or inclined to commit and then make it a part of a sting operation. The Division Bench observed that it was permissible for the media to use tools of investigative journalism but that did not permit the media to induce a person to commit a crime. 101. On the suggestion of learned Amicus Curiae appointed by it, the Division Bench proposed certain guidelines in respect of sting operations, which are not necessary to be repeated here, but with which we generally agree. 102. The School teacher case is a classic example of the dangers of a sting operation per se as well the weakness in our justice delivery system to respond to a misdemeanor of this type expeditiously, effectively and efficaciously. While the sting operation conducted on Mr. Anand and Mr. Khan may be criticized on ethical grounds and as violating their privacy and may have left them with a sense of having been deceived by Mr. Kulkarni, to say that they were trapped into indiscretio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civilly' Mr. Khan chose the more dignified course and he certainly cannot be faulted for that. What he can be faulted for, if at all, is the conversation that he had with Mr. Kulkarni and we will consider that issue in due course. 106. We may mention here that the Press Complaints Commission in England has drawn up a Code of Practice and item 7 thereof reads as follows: 'Journalists must not obtain or publish material obtained by using clandestine listening devices or by intercepting private telephone conversations. 107. We had noted earlier that Mr. Kulkarni had stated on affidavit that the sting operation was, in a sense thrust upon him by Ms. Agarwal and that she 'manipulated' the entire sequence of events with the intention of showing Mr. Anand and Mr. Khan in a poor light. We do not wish to comment on the affidavit of Mr. Kulkarni. The affidavit was filed by him without any permission from this Court and without any direction having been given to him to do so. We also feel that any comment on the affidavit of Mr. Kulkarni may be capitalized on in the BMW case by either of the parties. We, therefore, refrain from saying anything, one way or another, on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aying down the propositions that tape recorded conversation is admissible in evidence and that if it contains the previous statement made by a witness, it may be used to contradict his evidence before the Court. 113. In Mahabir Prasad v. Surinder Kaur [1982]3SCR681 it was held that a tape recorded conversation can only be relied upon as corroborative evidence of a conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon. 114. Mr. Anand took us through Quamarul Islam v. S.K. Kanta [1994]1SCR210 , The State v. Ravi 82(1999)DLT730 and Subhash Sharma v. Central Bureau of Investigation 2004 I AD (Delhi) 526, Jayalakshmi Jaitly v. Union of India (2002)DLT448 , Amar @ Bahadur v. State (2005)DLT267 , Asokan v. State of Kerala, M.S. Narayana Menon v. State of Kerala 2006CriLJ4607 and Rabindra Kumar Dey v. State of Orissa 1977CriLJ173 but these cases were either decided on the evidence recorded or they do not lay down any new or different principle than what has already been mentioned above. Consequently, they are of no further value or assistance for our present purposes. 115. The she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dequate to enable the jury to form a fair assessment of the conversations recorded in them and should not be excluded on that account. 117. It was held in Ram Singh that the tape recordings, 'as we have heard' were misleading and could not be relied on because in most places they were unintelligible and of a poor quality and of no use and so their potential prejudicial effect outweighed the evidentiary value of the recordings. 118. Reference was made to Sumitra Debi Gour v. Calcutta Dyeing and Bleaching Works AIR1976Cal99 wherein it was held, in connection with regard to a tape recording without the knowledge and consent of the person concerned, who may be unknowingly trapped into it, that: anything which is born of trickery or trapping or cunningness should be very cautiously and carefully considered by the court before it is admitted and accepted.' On the issue of stealthy tape recording it was observed in Joginder Kaur v. Surjit Singh that such a recording 'proves nothing else than an effort to create evidence. 119. In R v. Stevenson [1971] 1 All ER 678 it was held that, Just as in the case of photographs in a criminal trial the original unretouc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy in the time shown in the clock at one place; the reporter stated on affidavit that Mr. Kulkarni could not switch on/off the camera, but that is belied by the fact that he switches off the camera when he goes to the toilet; at some places the voice is admittedly inaudible as is clear from the transcript provided by NDTV etc. Mr. Anand submitted that there are several more discrepancies or mistakes in the video recording leading to the conclusion that the videotapes were not reliable evidence. He further submitted that he has challenged the authenticity of the video tapes by giving specific examples and has not given a bald or vague denial. 123. Assuming all this to be so, it really does not advance Mr. Anand's case (or for that matter of Mr. Khan) any further. This is because the original chips (except one) are in existence and available. Therefore, even if the video footage is discarded, we need only view the original chips to decide whether the contents digitally recorded thereon make out a case of contempt of Court having been committed by the alleged contemnors. 124. As luck would have it, the only original chip that is not available with NDTV is the one containing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also say this having viewed the original chips except one, which was not preserved. 126. The fact that Mr. Anand was able to point out some discrepancies in the video footage clearly suggests that he has been given full access to all the material and so he cannot make a grievance of non compliance with the principles of natural justice in the sense that he was not given an adequate opportunity to defend himself. That apart, (as noticed above) the discrepancies pointed out by him are not in the original chips but in the video recording made out of those chips. Even if we ignore the video recording, we are left with the original chips which we have played back and which do not contain any significant or material discrepancy. 127. It must be remembered that tape recorded material is concerned with only one of our senses ' the sense of hearing, while video recorded material is concerned with two senses ' the sense of hearing and that of sight. To that extent, the specific arguments that may be available to challenge the authenticity of tape recorded material may not be applicable mutatis mutandis to video recordings. In addition to demonstrating that the sound is tamper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved that the Courts would be loathe in punishing a contemnor if the act or omission complained of was not willful, deliberate and, as mentioned in Debabrato Bandopadhyay v. State of West Bengal: 1969CriLJ401 'It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished'. This is, of course, distinguishable from a case where an innocent person is induced by certain circumstances or factors to say something improper, which may perhaps be on the borderline of the law. (H.L. Sehgal v. State ILR (1985) 1 Del 921. 132. In J.R. Parashar v. Prashant Bhushan 2001CriLJ4207 it was held that proceedings for criminal contempt of Court are quasi-criminal and summary in nature. From this, two consequences follow: first, the alleged contemnor must be intimated the facts, with sufficient particularity, for which proceedings are intended to be launched to enable him to effectively defend himself; second, if there is any reasonable doubt of the existence of a state of facts, that doubt must be resolved in favour of the alleged contemnor. The expression 'sufficient particularity' was stressed by learned Counsel for Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gam v. Kedar Nath Gupta 1992CriLJ3576 for the proposition that willful conduct is a primary and basic ingredient of an offence of criminal contempt. 135. Two important conclusions have been given in Murray and Co. v. Ashok Kumar Newatia 2000CriLJ1394 , namely, that the contempt jurisdiction is a special jurisdiction to punish an offender for his contemptuous conduct or obstruction to the majesty of the law and that what is necessary for the imposition of a punishment is a substantial interference with the course of justice. In Murray and Co. it was held (as in Dhananjay Sharma v. State of Haryana [1995]3SCR964 ) that deliberately filing a false affidavit in Court or making a false statement on oath would also amount to a contempt of Court if it tends to cause obstruction in the due course of judicial proceedings or impedes and interferes with the administration of justice. 136. Obviously, it is not in every case that action for contempt would be necessary. Given the wide powers available with a Court exercising contempt jurisdiction, it cannot afford to be hypersensitive and, therefore, a trivial misdemeanor would not warrant contempt action. Circumspection is all the more ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reporter of NDTV. We will be dealing with this application in due course. 139. It was emphasized by Mr. Anand that if denials by an alleged contemnor are vague or general, then they should not be accepted; but in the present case, he has specifically denied the allegations made against him in considerable detail and so if an opportunity is not given to him to cross- examine the reporter, he would not be getting a fair deal and the principles of natural justice would be violated. Reliance in this regard was placed on Jagjit Singh v. State of Haryana AIR2007SC590 . 140. Learned Amicus cited Baradakanta Mishra v. The Registrar of Orissa High Court 1974CriLJ631 wherein the Supreme Court noted that all the three clauses of Section 2(c) of the Contempt of Courts Act, 1971 that define 'criminal contempt' define it in terms of obstruction of or interference with the administration of justice. It was further noted that broadly the Act accepts that proceedings in contempt are always with reference to the administration of justice. With reference to the three sub-clauses of Section 2(c) of the Act, the Supreme Court observed that Sub-clauses (i) and (ii) deal with obstruction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of justice, or to endeavour to persuade a witness to give evidence in a particular sense or to alter the evidence already given.' 145. Learned Counsel for NDTV referred to Balogh v. St. Albans Crown Court [1975] 1 QB 72 which is a rather interesting case that dealt with contempt in the face of the Court. This was sought to be equated with the power to 'to make an order of committal of its own motion against a person guilty of contempt of court.' But that really begged the question: what is 'of its own motion'' Lord Denning MR referred to some cases and commentaries such as those of Blackstone and Oswald, and concluded that contempt in the face of the Court led to instant punishment or punishment on the spot, unlike punishment rendered on motion. It was never confined to conduct which a judge saw with his own eyes and so contempt in the face of the Court is the same thing as contempt which the Court can punish of its own motion and it really means contempt in the cognizance of the Court. In other words, contempt 'of its own motion' is a species of contempt in the face of the Court. Some instances were given of this such as contempt (i) in the sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss Newspapers AIR2004SC456 wherein it is said, The question of contempt must be judged in a particular situation. The process of due course of administration of justice must remain unimpaired. Public interest demands that there should be no interference with judicial process and the effect of the judicial decision should not be pre-empted or circumvented by public agitation or publications. It has to be remembered that even at turbulent times through which the developing countries are passing, contempt of court means interference with the due administration of justice. 150. From the decisions cited before us, the following principles emerge as important considerations in dealing with cases of criminal contempt of Court: 1. The contempt jurisdiction of a Court is sui generis; it is a special jurisdiction and a summary jurisdiction. The Court is in effect the jury, the prosecutor, the judge and the hangman and so the jurisdiction has to be exercised with great caution and circumspection. 2. Action for contempt may be taken only if there is a substantial interference in the administration of justice. A Court should not be hypersensitive and take umbrage at every trivial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner; (d) xxx 154. Nobody has any doubt that the notice was not issued in contemplation of Sub-clause (i) above and so we are really concerned with Sub-clauses (ii) and (iii) of Clause (c) above. 155. A perusal of the order dated 7th August, 2007 (which is rather detailed) would show that it was passed after due deliberation and hearing learned Amicus. The order details the full facts of the case, including the material then before the Court, and it is only thereafter that the provisions of Clause (c) above were invoked. Certain facts in this regard are undisputed. Firstly, that the telecast of 30th May, 2007 concerned itself with a pending trial, namely, the BMW case; secondly, the telecast strongly suggested that Mr. Khan and Mr. Anand were colluding in the BMW case and that Mr. Kulkarni was known to both of them, perhaps more to Mr. Anand than to Mr. Khan; thirdly, the impression given by Mr. Anand and Mr. Khan in their conversations with Mr. Kulkarni leaves no manner of doubt that Mr. Kulkarni was knowingly in touch with both of them, which is unu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial is available to them in an audio-visual form. Actually, the noticees Mr. Khan (through his learned Counsel) and Mr. Anand himself have made elaborate submissions in their attempt to explain their spoken words, gestures, expressions as they appear in the video footage. For instance, Mr. Anand (in respect of a portion of the conversation that we will advert to a little later) has urged that his quoting double the amount demanded by Mr. Kulkarni was only to mock him and to suggest that he was only joking. Similarly, Mr. Khan sought to explain the cordial conversation that he had with Mr. Kulkarni (outside his chamber in Patiala House Courts) including the offer of drinks as an attempt to humour him on account of the intimidation and insecurity felt by him due to the presence of Mr. Deepak Verma. It is, therefore, evident that full opportunity has been provided to the noticees and they have availed of this full opportunity to urge each and every defence that could be urged. The contention of learned Counsel for Mr. Khan is, therefore, rejected. 157. We also need to deal with various applications filed by Mr. Anand. In Crl. M. No. 13782 of 2007 Mr. Anand has sought leave to cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an application for a direction to learned Counsel for NDTV to disclose the name of the employee or concerned officer of NDTV on whose instructions Mr. Harish Salve, Senior Advocate furnished a false clarification in this Court on 24th September, 2007. Ex facie, this application deserves to be rejected. 161. Crl. M. No. 4012 of 2008 is an application for sending the original chips and CDs for forensic examination to ensure that they are not edited, fabricated or tampered with. 162. Crl. M. No. 4150 of 2008 is an application for placing all the chips before this Court and for a direction to prepare a copy of the chips for being given to the applicant. 163. The contents of all these applications suggest that they have been moved in desperation and for exerting pressure on NDTV or Ms. Agarwal. The application concerning the forensic examination of the chips has been filed apparently to delay the proceedings, since no substantial submissions were made, as we have noted above, challenging the authenticity of the original chips. As far as the CDs are concerned, we are not solely relying on them oblivious of the contents of the chips. The original chips are in the safe custody of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clearly bring out the familiarity that Mr. Kulkarni had with them and that each one of them was aware of this. Having said this, we also need to study the material before us to determine whether any of the noticees are guilty of criminal contempt. We propose to simultaneously attempt both. 171. The first sting operation is the meeting that Mr. Kulkarni had with Mr. Khan on 28th April, 2007 in the Patiala House Court complex. Soon after Mr. Kulkarni enters the chamber of Mr. Khan, he is introduced by Mr. Khan to the others present in the chamber in the following words: Mr. Khan: Meet Kulkarni. He is the prime witness in the BMW case. He is our star witness and he is a very public-spirited and devoted man, and incidentally he was in Delhi on the day when this unfortunate incident happened. He was going on foot to the Nizamuddin Railway station. 172. There is then a conversation concerning 'Bade Saheb' which we propose to deal with in detail a little later. The conversation in regard to Bade Saheb runs as follows: Mr. Khan: Ab court ne (coughs) we dropped you ' court ne' (unclear). Mr. Kulkarni: No, no, you ' I think the state told you to drop, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra hoo out of Delhi. Mr. Khan: Out of Delhi' Mr. Kulkarni: Out of Delhi, haan. Mr. Khan: Sham ke keh baje aaoge' (At what time will you come in the evening)' Mr. Kulkarni: Aaj nahi aaonga ' main koi zaroor ' sham ko. Sunday aaram rehta hai aur ' (I will not come today. '. Sunday is relaxed). Mr. Khan: Sunday ko kis waqt aaoge' (At what time will you come on Sunday)' Mr. Kulkarni: Aap batao mere ko. (You tell me). Mr. Khan: Aapko kaun time suit karta hai' (What time suits you)' Mr. Kulkarni: Koi bhi. (Anytime). Mr. Khan: Saat aur aath ke darmiyan' (Between 7 and 8)' Mr. Kulkarni: Haan. Theek hai. (Yes, OK). Mr. Khan: Kal xxxx (not intelligible). Mr. Kulkarni: Lekin kisi ko batao mat. (But don't tell anybody). Mr. Khan: Nahi ji. Sawal hi nahi paida hota. (No question about it). Mr. Kulkarni: Na, na. Mr. Khan: Aur tumhare liya bahut badhiya scotch rakhi hui hai maine. (I have some very good scotch for you). Mr. Kulkarni: Scotch ' Mr. Khan: Bahut badhiya. (Very good). Mr. Kulkarni: Acha. Baki sab khairiyat sab' (Is everything OK)' Mr. Khan: Sab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause it is not proper for us to meet). Mr. Anand: Nahi ' Mr. Kulkarni: Jab bhi mereko zaroorat padegi main ghar pe aa jaunga, mujhe pata hai ' (Whenever it is necessary, I will come to your house). Mr. Anand: Chalo let me come back tomorrow evening, you come and meet me in the night ' in the farm ' don't meet me outside ' Mr. Kulkarni: Nahi aaj jaroori tha isliye main mila ' nahi to main ' I avoid it. (Today it was necessary that is why I met you). Mr. Anand: Nahi farm pe milna. (Come to the farm). Mr. Kulkarni: Aur doosri baat ' yeh inhe bhi jante ho...yeh dekho its Commando ' ok. (This is not intelligible). Mr. Anand: Ya, tomorrow evening, bye! 178. In the third sting operation on 8th May, 2007 in Mr. Anand's car, with regard to Mr. Khan, the relevant conversation between Mr. Anand and Mr. Kulkarni runs like this: Mr. Kulkarni: Yeh log kya karte hai, pata hai aapko. (Do you know what these people do') Mr. Anand: Arre bhaiyya...unko karne do jo ' mujhe to jo bataya hua hai woh bata diya maine '. Acha Khan ki to ghar ki baat hai. (Let them do [what they want]. I have told [you] what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I did not take the summons). Mr. Anand: To summon nahi liya abhi tak' Mr. Kulkarni: Na. Mr. Anand: So you have not taken the summon' Mr. Kulkarni: Na...not at all...jab tak aap nahi bataoge, Khan sahab nahi bataenge tab main summon kaise lu'.' (No, not at all. Until you or Mr. Khan advise me, how can I take the summons'). Mr. Anand: How did Ramesh Gupta inform him that you have taken the summons' Mr. Kulkarni: Ab yahi baat to yahi hai na ' maine summon nahi liya hai ' aap pata kar lo ' maine summon nahi liya hai ' jab vahan Bombay main jake ' unhone phir vahin panga chaloo kar diya na. (I have not taken the summon. You may find out). 181. In the context of the deposition to be made by Mr. Kulkarni, Mr. Anand says, Mr. Anand: I'm out of touch ' I'm not in trial ' I'm in High Court so I don't know ' anyhow ' what statement you are supposed to make ' we will decide about it. First of all, meet the bugger and talk to him. And be reasonable. Don't be unreasonable like what you told me that day. Don't be silly. Mr. Kulkarni: Kitna mangoo' (How much should I ask for) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )' Mr. Anand: Hain' Mr. Kulkarni: Kyon udaye ' jab tumhare paas paise bante hai to mein kyon udayoo' (Why should it be dismissed' When you can make money [on it] then why should I get it dismissed)' 184. With reference to the BMW case the conversation between Mr. Anand and Mr. Kulkarni is as follows: Mr. Kulkarni: Isme bachana hai na usko Sanjeev ko' (Sanjeev [the accused in the BMW case] has to be saved in this)' Mr. Anand: Bachana hai. Kabhi kisika bura mat kiya karo ' Panga lene ka kya faydaa. (He has to be saved. Don't harm anyone. There is no benefit in creating a problem). Mr. Kulkarni: Theek hai. (OK). Mr. Kulkarni: Nahi' lekin kaise kya karna hai vo aapne aur Khan saheb ne decide karna hai' After all it was merely an accident. (But you and Mr. Khan have to decide what has to be done). Mr. Anand: And he remained in jail for 8-9 months' yaar. 185. The nature of the conversations in the three sting operations, the contents of the conversations and the location of the meetings clearly show that Mr. Kulkarni was quite familiar with Mr. Anand and also with Mr. Khan. The several references made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Who is Bade Saheb' 188. There was much debate about the identity of Bade Saheb. According to learned Amicus, it has reference to none other than Mr. Anand but according to Mr. Khan, it has reference to a senior police officer. Learned Counsel for Mr. Khan relied on the immediately preceding sentences in the conversation regarding Mr. Kulkarni being dropped as a witness by the prosecution. The contention was that the flow of the conversation suggests that Bade Saheb refers to someone from the prosecution, which in the context means a senior police officer. It was further submitted that during the recording of Mr. Kulkarni's evidence on an earlier occasion, a reference to Bade Saheb was made more than once. 'Bade Saheb' was then translated and recorded in the deposition to mean senior police officers. Learned Counsel for Mr. Khan, however, did not produce any material to support the last submission. 189. The contention of Mr. Khan cannot be accepted since in the personal conversation (recorded by the button camera), Mr. Kulkarni informs Mr. Khan that he has had a talk with Mr. K.K. Paul [the Police Commissioner]. Mr. Paul, though a senior police officer, is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior police officer, since it causes more questions to be raised. Why would Mr. Kulkarni want to meet with senior police officers, particularly when he has been dropped as a prosecution witness' There is nothing to suggest that Mr. Kulkarni frequently met senior police officers whenever he was in Delhi, and so why should he meet them on this particular occasion' On the other hand, there is enough material to show that Mr. Kulkarni was quite familiar, if not friendly, with Mr. Khan and Mr. Anand. Mr. Kulkarni had access to Mr. Khan's chamber without an appointment. He also had free access to Mr. Anand and in fact took a ride with Mr. Anand in his car without any semblance of a protest from Mr. Anand. 195. Consequently, whichever way one looks at it, it is difficult to accept the contention of Mr. Khan that Bade Saheb refers to a senior police officer - the reference can only be to Mr. Anand. 196. We may also note the conversation that Mr. Kulkarni had with Mr. Anand on 6th May, 2007 in the VIP lounge of the Indira Gandhi International Airport (Domestic Terminal) which shows that he had easy access to Mr. Anand. This conversation and the conversation that Mr. Kulkar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extent of Mr. Khan's awareness of the 'association' between Mr. Anand and Mr. Kulkarni. Was he aware, for example that both of them could be 'mixed up' and could sabotage the prosecution case in the BMW trial' In hindsight, the answer must certainly be in the affirmative ' but hindsight enables us to draw on knowledge that was not available at the relevant time. But, that apart, Mr. Khan is a seasoned lawyer with decades of practice behind him. Surely, the proximity between Mr. Kulkarni and Mr. Anand (however little that may have been) would have aroused his suspicion ' and the natural corollary to that suspicion would be that their proximity (however little) would impact on the BMW case in only one way. Mr. Khan would have certainly realized this. 204. In addition, we find that the conversation that Mr. Khan had with Mr. Kulkarni with regard to accepting the Court summons, followed by an invitation from Mr. Khan to Mr. Kulkarni to visit his residence for a drink is totally unwarranted in the circumstances. Relevant extracts of this conversation read as follows: Mr. Kulkarni: Summons Bombay challa gaya thaa, ab waha se reject ho ke ayaa hua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due course of a judicial proceeding or a tendency to interfere or obstruct the administration of justice. If Mr. Khan knew, and there is no doubt about it, that Mr. Kulkarni and Mr. Anand were in touch, and Mr. Khan chose not to inform the prosecution or the Court about it, his silence had the potential and the tendency to interfere or obstruct the natural course of the BMW case and certainly the administration of justice, particularly when Mr. Khan himself describes Mr. Kulkarni as the prime witness in the BMW case and the star witness of the prosecution. In Mr. Khan's perception, Mr. Kulkarni is undoubtedly no ordinary witness and Mr. Anand is certainly no ordinary lawyer ' he is the advocate for the accused. 207. Under these circumstances, we are left with no option but to hold that Mr. Khan was quite familiar with Mr. Kulkarni; Mr. Khan was aware that Mr. Kulkarni was in touch with Mr. Anand; Mr. Khan was not unwilling to advise Mr. Kulkarni or at least discuss with him the issue of accepting the summons sent by the Trial Court to Mr. Kulkarni. We also have to option but to hold that Mr. Khan very seriously erred in not bringing important facts touching upon the BMW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Mr. Khan does not have any substance. The case against Mr. Sri Bhagwan Sharma: 210. Mr. Sri Bhagwan Sharma is an associate advocate of Mr. Anand and is also one of the learned Counsel for the accused. As regards his defence, he has adopted the arguments advanced by Mr. Anand. The only material against him is the video recording taken on 8th May, 2007. It is not disputed before us that Mr. Sri Bhagwan Sharma met Mr. Kulkarni in the South Extension Part II market and was joined by one Mr. Lovely (since deceased). Mr. Sri Bhagwan Sharma is a mature lawyer with considerable experience and obviously can be assumed to be fully conscious of and understanding the consequences of each of his actions. The video recording reveals that Mr. Sri Bhagwan Sharma met Mr. Kulkarni in the evening and was with him for a while and till Mr. Lovely, another associate of Mr. Anand came on the scene. The conversation that Mr. Sri Bhagwan Sharma has with Mr. Kulkarni reveals the anxiety and discomfiture of Mr. Kulkarni on being made to wait for a third person (Mr. Lovely), about whom he keeps on enquiring and who is described as a close confidant and right hand man of Mr. Anand (referred to in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versing with Mr. Kulkarni who had been a witness for the prosecution. As a defence lawyer, Mr. Sri Bhagwan Sharma had no business to be in touch with Mr. Kulkarni and for this he invites our displeasure. But, in our opinion, his conduct does not amount to criminal contempt of Court. We may note that we have taken into consideration the fact that Mr. Sri Bhagwan Sharma was not a major player in the entire operation or even in the BMW case and was only a 'junior' or sidekick of Mr. Anand, and acting on his instructions as his Man Friday. The case against Mr. R.K. Anand: 214. There is absolutely no doubt that the role of Mr. Anand is dubious, to say the very least. The first sting operation clearly brings out the connection that Mr. Khan and Mr. Kulkarni have with Mr. Anand, who is like the 'team leader' who must be made aware of everything that is going on. That appears to be the reason why Mr. Khan is surprised that Mr. Kulkarni has not yet met Mr. Anand. Admittedly, there is no direct reference to Mr. Anand in the first sting operation, but that hardly makes any difference. In our opinion, the reference to Bade Saheb is quite clear and even if it is not so, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aath baje ' aap mere ko bula lena. (I will be around at a quarter to eight. Please call me). Mr. Anand: Give me a call at seven forty five. Mr. Kulkarni: Ji. Mr. Anand: On my office number. 218. That Mr. Kulkarni could gain easy entry into Mr. Anand's car further shows their familiarity and proximity. There was no protest or objection from Mr. Anand. In fact, his car stopped to pick up Mr. Kulkarni ' it was not as if Mr. Kulkarni forced his way into the car. All the material that we have referred to above clearly shows the lack of any distance between Mr. Anand and Mr. Kulkarni. We ask: Is it ethical or even proper for a defence lawyer to be so familiar with the star prosecution witness' What does their proximity suggest' Discussions regarding money: 219. There is also talk of some money between Mr. Anand and Mr. Kulkarni. There is a mention of two-and-a-half crore v. five crore in this manner: Mr. Anand: Haan ab ' ab mujhe batao.... Ab batao mere ko. (Now tell me). Mr. Kulkarni: Mujhe bola dhai crore doonga ' aap batao mere ko. (He told me that he will give two-and'a-half crore. You advise me). Mr. Anand: Hain' Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t). Mr. Anand: Haan ' mil gaya tha. (Yes, I received it). Then again, Mr. Kulkarni: Bus baat hi kuch nahi.... Patiala House Court main jakar meine de diya ' Khan sahab ne vo din mereko summon lene ke liye mana kar diya ' ab theek hai vo ' vo to obviously hona hi tha ' ab mereko message pahuchana tha ' vo pahuch gaya. (That day Mr. Khan asked me not to accept the summons. I had to convey a message and that has been conveyed). Mr. Anand: Toh liya kya summon. (So did you take the summons') Mr. Kulkarni: Main kahan se summon liya ' bilkul nahi. (No, I did not take the summons). Mr. Anand: To summon nahi liya abhi tak' Mr. Kulkarni: Na. Mr. Anand: So you have not taken the summon' Mr. Kulkarni: Na...not at all...jab tak aap nahi bataoge, Khan sahab nahi bataenge tab main summon kaise lu'.' (No, not at all. Until you or Mr. Khan advise me, how can I take the summons'). Mr. Anand: How did Ramesh Gupta inform him that you have taken the summons' Mr. Kulkarni: Ab yahi baat to yahi hai na ' maine summon nahi liya hai ' aap pata kar lo ' maine summon nahi liya hai ' jab vahan Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (You talk to Mr. Khan). Mr. Kulkarni: Unko bolna ' aap unko phone kar ke bolna main aa jaunga ' mere se baat kar lena kyunki mera aur aapka milna theek nahi hai. (You phone him up and tell him that I will be coming and that he should speak to me, because it is not proper for us to meet). 232. There is talk of Mr. Khan being a member of the family and yet, for some reason, he should not know about payments being received by Mr. Kulkarni. This is apparent from the following conversation: Mr. Kulkarni: Yeh log kya karte hai, pata hai aapko. (Do you know what these people do') Mr. Anand: Arre bhaiyya...unko karne do jo ' mujhe to jo bataya hua hai woh bata diya maine '. Acha Khan ki to ghar ki baat hai. (Let them do [what they want]. I have told [you] what I was told to me. [The next sentence is colloquial and therefore difficult to translate, but it conveys that Mr. Khan is a part of the family]. Mr. Kulkarni: Haan vo to Khan sahab ke apne ghar ki baat hai. (Yes, Mr. Khan is a part of the family). Mr. Anand: Yeh to tum usko keh nahi sakte ho ki tumhe paise mil rahe hain. (You cannot [should not'] tell him [Mr. Khan] that you are getting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecide karna hai' After all it was merely an accident. (But you and Mr. Khan have to decide what has to be done). Mr. Anand: And he remained in jail for 8-9 months' yaar. 236. The entire material leaves a bitter taste in the mouth about the goings-on in the BMW case and there is no manner of doubt whatsoever that there was complicity between Mr. Khan and Mr. Anand and that Mr. Kulkarni was aware of it and was apparently trying to use it to his advantage. It is not necessary for us to comment on the conduct of Mr. Kulkarni, nor would it be proper, but there can be absolutely no doubt that Mr. Khan and Mr. Anand were, somehow or the other, more than 'mixed up' in the BMW case. 237. It is also important to note that the sting operation is the only material presently available and it discloses the fact that the dramatis personae had been in touch earlier also ' the sting operations were clearly not their first meetings. That being so, we will never know what transpired between them prior to the sting operations, but it was certainly something not very pleasant. 238. We are left without a shadow of doubt in our mind, on the basis of the material before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey should be stripped of their designation as Senior Advocates. In this context, we may refer to a decision of a Division Bench of this Court authored by one of us (Manmohan Sarin, J.), titled Court on its own Motion v. Rajiv Dawar 2007 I AD (DELHI) 567. In that case, the defence lawyer had assured the accused of his release on bail for a sum of ₹ 30,00,000/- having spoken to 'the people, who would be responsible for his release on bail'. After being given a full opportunity of representing his case, he was found guilty of criminal contempt and substantially interfering with the administration of justice. In that case, the contemnor had refunded ₹ 4,00,000/- as directed by the Bar Council and a plea was made to bring a quietus to the matter. This submission was rejected by the Bench holding: To our mind, it is essential that aberration committed by those who are integral part of the administration of justice are sternly and firmly dealt with. Magnanimity and latitude should be available to those who are not knowledgeable or conversant with the system or commit the offence unwittingly or innocently. We may also observe that throughout these prolonged proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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