R.K. ANAND v. REGISTRAR, DELHI HIGH COURT

Citation: [2009] 11 S.C.R. 1026

Court: Supreme Court of India

Bench: B.N. AGRAWAL, G.S. SINGHVI, AFTAB ALAM

Case summary

R.K. ANAND v. REGISTRAR, DELHI HIGH COURT.pdf

Judgment text

[2009] 11 S. C. R. 1026 :i. -- R. K. ANAND v. REGISTRAR, DELHI HIGH COURT (Criminal Appeal No. 1393 of 2008) JULY 29, 2009 [B. N. AGRAWAL, G. S. SINGHVI AND AFTAB ALAM, JJ. ] . _ CONTEMPT OF COURTS ACT, 1971: ~ Sections 2, 3, 12, 14, 17: Hit and run case known as BMW case - Attempt to suborn a prosecution witness - Sting operation by a TV channel - High Court issuing Contempt Notices to Defence Counsel (RK) and the Special Public Prosecutor (IU) who were seen . discussing with the Prosecution witness (K) in the t sting operation - Not satisfied with the explanation of the alleged 'contemnors', High Court held them viz. 'RK' and 'IU' guilty of committing contempt of court and in exercise of power under Article 215 of the Constitution of India, prohibited them from appearing in the Delhi High Court and courts subordinate to it for four months - However, they were left free to carry on their professional work like consultations, advices, conference, opinion etc.

- High Court also held that both the .. ; Advocates had forfeited their right to be designated as Senior Advocates and recommended to the Full Court to divest them ---of the honour - Both the Advocates were also sentenced to fine of Rs. 20001- each on appeal, Held: The authenticity and integrity of the sting recordings never disputed nor doubted by 'RK' - Therefore no requirement of any formal proof of the sting operation - He was given fullest opportunity to defend himself - The sting recordings were rightly made the basis of conviction - Thus conyiction of 'RK' for contempt of court > ...

is proper, legal and valid calling for no interference - However 'RK' did not show any remorse for his gross misdemenour and ----1 instead tried to take on the High Court by defying its authority - Punishment given by High Court inadequate and incommensurate to the seriousness of his actions and conduct - He needs to be kept away from the portals of the court for a longer time - Accordingly, notice to be issued to him - Such a notice would also cure the defect in the High Court order in debarring him from appearing in courts without giving any specific notice - There is no doubt that the exchanges between the proposed Prosecution Witness 'K' -" and the Prosecutor 'JU' far crosses the limits of proper ~ professional conduct of a prosecutor especially engaged to conduct a sensational trial and a designated Senior Advocate of long standing - Thus the High Court rightly found that the conduct of 'IU' was inappropriate for a lawyer in general and a prosecutor in particular - But having regard to the charge of criminal contempt any suspicion however strong cannot take place of proof - Hence it would not be wholly prudent to ~ rely upon the exchanges between 'K' and 'RK' to record finding against 'IU' - On the basis of materials on record the change of criminal contempt cannot be held to be satisfactorily established against 'IU' and he is entitled to benefit of doubt - Constitution of India, Articles 19, 227 and 235 - Administrative Law - Principles of Natural Justice.

Issue of Notice - High Court issuing notices to the Advocates only - Correctness of - Held: the stage of issue '"' of notices, the integrity, authenticity and reliability of the sting recordings were wide open - In case the TV channel failed to establish the genuineness and correctness, it would have been equally guilty if not more of serious contempt of court and other criminal offences - Thus, if notice had been issued also to the TV Channel, there would have been no scope for grievance that the High Court put the TV Channel on the ,, complainant's seat - Then perhaps the TV Channel would . ,,. ,, I have conducted itself in a more careful manner and the lapses noticed might not have occurred. CONSTITUTION OF IND/A, 1950: ,.. _.

Articles 227, 235 - Powers and duties of High Courts - Every failed trial is a negative comment on the State's High Court - It is high time that the High Courts assume a more pro-active role in such matters - The powers are not confined 8 only to posting, transfer and promotion of the officers of the subordinate judiciary - The power of control should also be exercised to protect them from external interference that may sometime appear overpowering to them and to support them ~ ~ to discharge their duties fearlessly.

ADVOCATES ACT, 1961: Section 34 - Debarring an Advocate from appearing in Court - In a matter as fundamental and grave as preserving the purity of judicial proceedings, High Court would be free to exercise the powers under Section 34 not withstanding the ·~ fact that Rules prescribing the manner of exercise of power have not been framed - In the absence of statutory rules in this regard, an Advocate facing charges of contempt would normally think only of punishments under Section 12 of the Contempt of Courts Act - He may not know that it might end up in being debarred from appearing in Courts - Rules of Natural Justice demand that he should be clearly told that he might be debarred for a specific period - The warning may be given in the initial notice of contempt or after he was held " guilty- In the instant case, the Advocates were not given any notice by the High Court that if found guilty they might be prohibited from appearing in the High Court and the Courts subordinate to it for a certain period - To that extent the directions given by the High Court was not in conformity with the Principles of Natural Justice - In order to avoid such controversies in future all the High Courts which have not so far framed rules under Section 34 are directed to frame rules • ...

, without any further delay within four months - The High Courts may also consider framing Rules for having Advocates on ·J Record on the pattern of the Supreme Court of India - Contempt of c;ourts Act, 1971, Sections 12, 14, 17 - Administrative Law - Principles of Natural Justice. STING OPERATION BY TV CHANNELS: 8 Sting operation conducted by NDTV in BMW case - The programme telecast may have faults and weaknesses, but it showed to the people that a conspiracy was afoot to • undermine the trial - What was shown was proved to be • substantially true and accurate - It was clearly intended to prevent the attempt to interfere with or obstruct the due course of the trial - It was indeed in larger public interest and served an important public cause.

LEGAL PROFESSION - Falling standards - Concern expressed - Bar Council of India and State Bar Councils to pay proper attention to the restoration of high professiona•t standards among lawyers worthy of their position in the judicial system and in the society. In a hit and run accident in Delhi, six people were crushed to death, including three policemen. Known as the BMW Case, it was lingering for years, the main accused coming from a very wealthy business family. It evoked considerable media attention and public interest. An English News Channel NDTV telecast a programme in which one 'K' was shown meeting 'IU', the Special Public Prosecutor and 'RK', the Senior Defence Counsel (with two others) negotiating for the sell out of 'K' in favour of defence for a very high price. 'K' considered the most valuable witness for the prosecution was later on dropped by the prosecution. Shocked by the TV programme the Delhi High Court suo moto initiated a proceeding.

It called for from the news channel all the materials on which the telecast was based and after . ·. examining those materials issued show cause notices to 'RK', 'IU' and 'BS', an associate advocate with 'RK' as to ,-... .. why they should not be convicted and punished for committing criminal contempt of court as defined under section 2 (c) of the Contempt of Courts Act. On considering their show cause and after hearing the parties the High Court expressed its displeasure over the role of 'BS' but acquitted him of the charge of contempt of court. As regards 'RK' and 'IU', however, the High Court found and held that their acts squarely fell within the definition of contempt under clauses (ii) & (iii) of section 2(c) of the Contempt of Courts Act.

It, accordingly, held them guilty of committing contempt of Court and in exercise of power under Article 215 of the Constitution of India prohibited them, by way of punishment, from appearing in the Delhi High Court and the courts subordinate to it for a period of four months from the date 0 of the judgment. It, however, left them free to carry on their other professional work, e. g. , 'consultations, advises, conferences, opinion etc'. It also held that 'RK' and 'IU' had forfeited their right to be designated as Senior Advocates and recommended to the Full Court to divest them of the honour. In addition to this the High Court also sentenced them to fine of rupees two thousand each. Hence the appeals. The following questions arose for consideration: 1. Whether the conviction of the two appellants for committing criminal contempt of court is justified and sustainable? 2.

Whether the procedure adopted by the High Court in the contempt proceedings was fair and reasonable, causing no prejudice to the two appellants? 3. Whether it was open to the High Court to prohibit the appellants from appearing before the High Court and the courts sub-ordinate to it for a specified period as one -~ of the punishments for criminal contempt_ of court? 4. Whether in the facts and circumstances of the case the punishments awarded to the appellants can be said to be adequate and commensurate to their misdeeds? Apart from the above, some other important issues also arose from the facts of the case: 5. The role of NDTV in carrying out sting operations ... and telecasting the programme based on the sting ~ materials in regard to a criminal-trial that was11 ing on before the court. 6. The declining professional standards among ,,. lawyers, and 7. The root-cause behind the whole affair; the way the BMW trial was allowed to go directionless.

Allowing the appeal of 'IU' and dismissing the appeal of 'RK' subject to the notice issued to him for enhancemen't of punishment, the Court HELD: 1. It is one thing to say that the standard of proof in a contempt proceeding is no less rigorous than a criminal trial but it is something entirely different to insist that the manner of proof for the two proceedings must also be the same. It is now well settled and so also the High Court has held that the proceeding of contempt of court is sui generis. In other words, it is not strictly controlled by the provisions of the CrPC and the Indian Evidence Act. What, however, applies to a proceeding of contempt of court are the principles of natural justice and those principles apply to the contempt proceeding with greater rigour than any other proceeding. This means· "' .

j that the Court must follow a procedure that is fair and objective; that should cause no prejudice to the person facing the charge of contempt of court and that should >- • allow him/her the fullest opportunity to defend himself/ herself. [Para 82] [1108-A-D] In Re Vinay Mishra (1995) 2 SCC 584 and Daroga Singh and Ors. vs. B. K. Pandey (2004) 5 sec 26, relied on. Mritunjoy Das vs. Sayed Hasibur Rahman, (2001) 3 SCC 739; Chotu Ram vs. Urvashi Gulati and Ors. , (2001) 7 SCC 530; Anil Rattan Sarkar vs. Hirak Ghosh, (2002) 4 SCC 21; • Bijay Kumar Mahanty vs. Jadu @ Ram Chandra Sahoo, • (2003) 1 SCC 644; J. R. Parashar, Advocate vs. Prashant - Bhushan, Advocate (2001) 6 SCC 735; S. Abdul Karim vs. NK Prakash and others (1976) 1 SCC 975; SA Khan vs. Bhajan Lal, (1993) 3 SCC 151; Quamarul Islam vs. S. K. ~- Kanta, (1973) 1 SCC 471; N. Shri Rama Reddy vs. V. Giri (1970) 2 SCC 340; R. M. Malkani vs. State of Maharashtra (1973) 1 SCC 471; Mahabir Prasad Verma vs. Dr.

Surinder Kaur (1982) 2 SCC 258 and Rafll Singh vs. Col. Ram Singh (1985) Suppl SCC 611, referred to. R vs. Stevenson, 1971 (1) All ER 678 and State vs. Cannon. 92 N C App. 246, referred to. 'The Sedona Conference. Commentary on ES/ Evidence & Admissibility': A Project of The Sedona Conference Working Group on Electronic Document Retention & Production (WGl). ,by Mr. Ahmed published in Sedona Conference Journal, Fall 2008 and "Detection Technique of Video Tape Alteration on the Basis of Sound Track Analysis" The Indian Police Journal, July- September 2004 issue, referred to. 2. 1. 'RK' admitted that 'K' met him at the airport lounge. He didn't deny any part of the conversation • ... between them as shown in the programme based on the sting recordings. To the anchor of the first programme, ~ he impliedly admitted meeting 'K' for the second time in the car simply stating that he didn't ask 'K' to sit in the car and he did not ask him to come to the office. But •.

about half an hour later, to the anchor of the second programme, though admitting meeting 'K' at the airport lounge, 'RK' completely denied meeting him in the car or anywhere else for the second time. However, the denial was quite false. [Para 84] [1113-C-D] J• 2. 2. 'RK', 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. [Para 85] [1113-E-F] 2. 3. Immediately after the telecast 'RK' sent a legal -11:: notice to NDTV threatening legal actions against them and demanding a. huge sum as compensation. NDTV gave its reply to the legal notice and thereafter 'RK' didn't .... pursue the matter any further. tPara 86) (1113-F-G] 2. 4. There is plain and clear admission in regard to the second meeting taking place in the car between 'RK' and 'K' on the evening of May 8, 2007.

The statement made on oath before the High Court thus completely falsifies his denial in the live interview with the anchor of the TV programme about the second meeting with 'K' in .. the car. As to the later part of the paragraph regarding the alleged sting on 'K' by 'S', this Court does not have the slightest doubt that it was an afterthought and concoction. Had there been such a sting recording 'RK' was duty bound to inform the High Court about it when the Criminal Revision against the trial court order summoning 'K' as court witness was heard on several dates in May 2007 before the telecast of the programme by ND1V. He was equally duty bound to inform the trial --- . j court about 'K's approaches and the sting done on him by 'S' when 'K' was examined before it on May 14, 17 & 29. [Para 89) [1115-A-D] .... 2. 5.

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. [Para 90) [1115- E] 2. 6. 'RK' thus accepts the entire recordings in both the stings. For, it is absurd even to suggest that the sting JI recordings are true and correct if those are seen as .. supporting his explanations but are otherwise false and fabricated. [Para 91) [1119-A-B] 2. 7. There is no substance in the anomalies and . alleged inter correlation in the sting recordings as pointed out on behalf of 'RK' on the basis of the eight minute CD which he got prepared from the materials supplied to him by the Court. Along with ti . e other materials this Court also viewed eight minute CD produced by 'RK'. In the CD an attempt is made to show that the frames in the sting recordings some times jumped out of the sequence number and such other technical flaws.

The objections raised by 'RK' were fully explained by the affidavit filed on behalf of NDTV. [Para 93) [1119-D-F] 2. 8. On a careful consideration of the materials on record this Court does not have the slightest doubt that the authenticity and integrity of the sting recordings was never disputed or doubted by 'RK'. He kept on changing his stand in regard to the sting recordings. In the facts and circumstances of the case, therefore, there was no requirement of any formal proof of the sting recordings. Further, so far as 'RK' is concerned there was no violation of the principles of natural justice inasmuch as he was .. given copies of all the sting recordings along with their transcripts. He was fully made aware of the charge against him. He was given fullest opportunity to defend ·-~ himself and to explain his conduct as appearing from the sting recordings. The High Court viewed the microchips ·.

used in the spy camera and the programme telecast by TV channel in his presence and gave him further opportunity of hearing thereafter. The sting recordings were rightly made the basis of conviction and the irresistible conclusion is that the conviction of 'RK' for contempt of court is proper, legal and valid calling for no ... interference. [Para 95] [1120-C-F] .. 3. 1. The recording of the sting operation on 'IU' 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' and 'K'. In the absence ..... of the full transcript it becomes difficult and cumbersome to see what transpired between 'K' and 'D' immediately before and after the meeting with their subject. That part +. of the sting recording was also highly relevant and important for judging the true import of the exchange that took place between 'K' and 'IU'.

It is surprising that the High Court did not notice this big omission in the transcript of the first sting and this Court records its disapproval of NDTV in withholding the full transcript of the sting recording. [Para 97] [1121-G-H; 1122-A-B] ,. , 3. 2. The conduct of NDTV before the High Court in a vary serious proceeding was quite cavalier and causal. At the time the High Court issued show cause notices to the three proceedees it did not have before it the recording on one of the five microchips used in the sting operations. The materials given to the proceedees along with show cause notice were not exactly the same as submitted before the High Court. The explanation in the form of affidavit came on October 1, 2007 on the same '- 4 day when 'IU' filed his reply affidavit in response to the show cause notice. [Para 100] [1124-F-H; 1125-A] 3. 3. Having regard to seriousness of the proceeding "'1- ,, this Court 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'. These in no way affect 'RK' or alter his position. The discussions and findings recorded above in respect of 'RK' thus remains completely 8 unaffected by the mistakes pointed out here. [Para 102] [1125-E-G] . ) 3. 4. 'IU' does not deny the conversation that is shown .. to have taken place between him and 'K'. 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 'K' 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 'K' to clarify he explained that Bade Saheb meant a superior officer of the police headquarter. The words Bade Saheb, according to 'IU', did not in any way refer to 'RK'. The High Court did not accept 'IU's defence. The High Court held that there was great familiarity between 'IU', 'K' and 'RK'. In coming to this conclusion, the High Court relied a great deal upon the conversations between 'K' and 'RK'. [Paras 106, 108 and 109) [1129-H; 1130-A-G] 3. 5. The High Court further held that when 'IU' asked 'K' whether he had met 'Bade Saheb' he only meant 'RK'. It rejected 'IU's stand that what he meant by the expression was a senior police officer. The High Court • observed that no material was produced on behalf of 'IU' in support of the statement that in colirse of his deposition before the trial court 'K' used the expression 'Bade Saheb' to mean a senior police officer.

It further observed that in the sting operation, just before the conclusion of the meeting, 'K' had said that he had met 'P' (who was then the Police Cbmmissioner). This, according to the High Court, clearly showed that 'K' referred to the Police Commissioner by his name and not by the expression 'Bade Saheb'. High Court further observed that for 'K' there was no reason to meet the senior police officers particularly when he was dropped as prosecution witness. There was nothing to suggest that while in Delhi 'K' used to meet the senior police officers. On the other hand there was sufficient evidence to show that he was very familiar with both 'IU' and 'RK', had easy access to both of them and used to frequently meet them. The High Court then took up 'K's affidavit that supported 'IU's plea that by the expression he had meant some senior police officer and not 'RK' and rejected it on a number of grounds. [Paras 110 and 111] [1130-G-H; 1131-A-F] 3. 6.

This Court has carefully gone through all the materials concerning 'IU' and perused the transcript of the exchange between 'K' and 'IU' and have also viewed the full recording of the sting several times since the full transcript of the recording is not available on the record. This Court does not have the slightest doubt that the exchange between 'K' and 'IU' far crosses the limits of proper professional conduct of a prosecutor (especially engaged to conduct a sensational trial) and a designated Senior Advocate of long standing. This Court not prepared to accept for a moment that on seeing 'K' suddenly after several years in the company of a 'burly stranger' 'D', 'IU' became apprehensive about his personal safety since in the past some violent incidents had taken place in the court premises and some lawyers had lost their lives and consequently he was simply playacting and pampering 'K' in order to mollify him. The plea ....

is not borne out from the transcript and much less from the video recording. In the video recording there is no trace of any fear or apprehension on his face or in his gestures. He appears perfectly normal and natural sitting among his colleagues (and may be one or two clients) 8 and at no point the situation appears to be out of his control. As a matter of fact, the plea is not quite worthy of a lawyer of 'IU's standing and this Court should have much appreciated had he simply taken the plea of an )> error of discretion on his part. [Para 116] [1134-E-H; 1135- " A] 3. 7. Coming back to the exchange between 'IU' and 'K', this Court accepts that the transcript of the exchange does not present the accurate picture; listening to the live voices of the two (and others present in the chamber) on the CD gives a more realistic idea of the meeting. This Court grants everything that can be said in favour of 'IU'. The meeting took place without any prior appointment from him.

'K' was able to reach him, unlike 'RK', without his permission or consent. 'IU' did not seem to be overly enthused at the appearance of 'K'. Accosted by 'K', he spoke to him out of civility and mostly responded only to his questions and comments. There were others present in the chamber with whom he was equally engaged in conversation. He also greeted someone else -1 ', who came into the chamber far more cheerfully than 'K'. 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' gave reassurances to 'K' 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' seemed even dismissive of 'K' 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' would be the first person to deny any friendship or even a long acquaintanceship with 'K'. The only common factor between them was the BMW case in which one was the prosecutor and the other was a prosecution witness, later .. dropped from the list of witnesses. A lawyer, howsoever, affable and sociable by disposition, if he has the slightest ~ respect for professional ethics, would not allow himself such degree of familiarity with the witness of a criminal trial that he might be prosecuting and would not indulge with him into the kind of exchange as admittedly took place between 'IU' and 'K'. This Court is also not prepared to believe that in his conversation with 'K', 'IU' did not mean what he was saying and he was simply trying to ~ somehow get rid of 'K'.

The video of the sting recordings leaves no room for doubt that 'IU' was freely discussing the proceeding of BMW case with 'K' and was not at all averse to another meeting with him rather he was looking forward to it. This Court, therefore, fully endorses the High Court finding that the conduct of 'IU' was inappropriate for a lawyer in general and a prosecutor in particular. [Para 117] [1135-8-H; 1136-A-D] ~ 4. 1. The High Court held that there was an extraordinary degree of familiarity between 'IU', 'K' and 1 'RK' and each of them knew that the other two were equally familiar with each other. So far as BMW trial is concerned 'K' was a link 'between 'IU' and 'RK'. 'IU', by reason of his familiarity both with 'RK' and 'K' would also know about the game that was afoot for the subversion -. 1 of the trial. He failed to inform the prosecution and the 'court about it and his omission to do so was likely. to have a very serious impact on the trial. He was, therefore, ...

guilty of actually interfering with due course of judicial proceeding, in the BMW case. [Para 119) [1136-E-G] 4. 2. While examining what 'K' understood or rather what he wanted 'D' to believe what was meant by 'Bade Saheb' it is necessary to bear in mind that the whole object of the sting was to uncover the alleged unholy alliance between the defence and the prosecution. It was based on the premise that the prosecution was colluding ,. with the defence in the effort to save the accused In the ~ . BMW case. In that situation for 'K', 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 'D' some link between 'IU' and 'RK' irrespective of whether or not there was, in reality, any link between the two. There is no way to find out whether 'K' really believed that by 'Bade Saheb' 'IU' meant 'RK' or he just wanted 'D' to believe so. But even if 'K' really understood Bade Saheb to mean 'RK', that would not change the position much.

It is not important what 'K' or 'D' 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' meant when he used that expression. On the basis of the exchange between 'K' and 'D', it will be highly unsafe to hold that when 'IU' asked 'K' whether he had met "Bade Saheb' he meant 'RK'. [Para 125] [1139-D-H; 1140-A-B] 4. 3. The High Court rejected 'IU's explanation that what he meant by 'Bade Saheb' was some senior officer in the police headquarter. According to 'IU', 'K' was in the habit of directly approaching the superior police officers and he would refer to them by that expression. The .. proceeding before the High Court was under the Contempt of Courts Act and the High Court was not following any well known and well established format. In "'-..

that situation it was only fair to give notice to the proceedees to substantiate the pleas taken in the reply affidavit by leading proper evidence. It must, therefore be held that the High Court rejected a material plea raised on behalf of the 'IU' without giving him any opportunity to substantiate it. [Paras 126 and 127] [1140-C; 1141-A- E] 4. 4. Further, the High Court, for arriving at the finding ... that there was a high degree of familiarity among 'IU', 'K' ~ and 'RK' has repeatedly used the transcripts of the meetings between 'K' and 'RK'. It is indeed true that in the exchanges between 'K' and 'RK' there are many references to 'IU'. 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 this -4- Court does not feel it wholly prudent to rely upon the exchanges between 'K' and 'RK' to record a finding against 'IU'.

[Para 128] [1141-E-G] 4. 5. The appellant was given no opportunity to show that, as a matter of fact, after 'K' met him at the Patiala House on April 28, 2007 he had informed the concerned authorities that after being summoned by the court 'K' was back to his old tricks. He further submitted that the :.. appellant, given the opportunity, could also show that the decision to riot examine him as one of the prosecution witnesses was taken by the concerned authorities in consultation with him. On the basis of materials on record the charge of criminal contempt cannot be held to be satisfactorily established against 'IU' and he is entitled to the benefit of doubt. [Paras 130 and 131] [1142-C-F] .. 5. 1. At first the direction of the High Court leaving the """ microchips containing the original' sting recordings and the magnetic tapes with the TV channel indeed appears to be somewhat strange and uncommon but a moment's I> • thought would show the rationale behind it.

If the recordings on the microchips were fake from the start or if the microchips were morphed before notice was issued to the TV channel, those would come to the court in that condition and in that case the question whether the microchips were genuine or fake/morphed would be another issue. But once the High Court obtained their copies there was no possibility of any tampering with the microchips from that stage. Moreover, the High Court ,. might have felt that the TV channel with its well equipped " studio/laboratory would be a much better place for the handling and conservation of such electronic articles than the High Court Registry. On the facts of the case, therefore, there was no lapse on the part of the High Court in leaving the microchips in the safe custody of the TV channel and in any event it does not have any bearing on the final decision of the case. [Para 133] [1143-B-E] 5. 2.

Since the contents of the sting recordings were admitted there was no need for the proof of integrity and correctness of the electronic materials. But at the time the High Court issued notices to the two appellants (and two others) the position was completely different. At that stage the issue of integrity, authenticity and reliability of the sting recordings was wide open. The appellants might have taken the stand that not only the sting recordings but their respective responses shown by the TV channel were fake and doctored. In such an event the TV channel would have been required to be subjected to the strictest proof of the electronic materials on which its programmes were based and, in case it failed to establish their genuineness and correctness, it would have been· equally guilty, if not more, of serious contempt of court and other criminal offences. By all reckoning, at the time .. ,.

of initiation of the proceeding, the place of NDTV was along with the appellants facing the charge of contempt. Such a course would have put the proceeding on a more ~-~ even keel and given it a more balanced appearance. Then perhaps there would have been no scope for the grievance that the High Court put the TV channel on the complainant's seat. And then perhaps the TV Channel too would have conducted itself in a more careful manner and the lapses as in the case of 'IU' might not have occurred. [Para 134] [1143-G-H; 1144-A-D] 6. 1. 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 orderly functioning of the courts but may become necessary for the self protection of the court and for preservation ofthe purity of court proceedings. [Para 143) [1154-D-E] 6. 2. Further, the prohibition against appearance in ....

courts does not affect the right of the concerned lawyer to carry on his legal practice in other ways. [Para 143] [1155-D] 6. 3. The occasion to take recourse to the extreme step of debarring an advocate from appearing in court should arise very rarely and only as a measure of last resort in cases where the wrong doer advocate does not at all appear to be genuinely contrite and remorseful for ~ his act/conduct, but on the contrary shows a tendency to repeat or perpetuate the wrong act(s). [Para 145] [1155- F-G] 6. 4. Ideally every High Court should have rules framed under section 34 of the Advocates Act in order to meet 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 deb:ured from appearing before the court. The rules of natural justice, therefore, demand that before passing an ). order debarring an advocate from appearing in courts he must be clearly told that his alleged conduct or actions are such that if found guilty he might be debarred from appearing in courts for a specific period.

The warning may be given in the initial notice of contempt issued under section 14 or section 17 (as the case may be) of the Contempt of Courts Act. Or such a notice may be given after the proceedee is held guilty of criminal contempt before dealing with the question of punishment. [Para 146] [1155-G-H; 1156-A-E] 6. 5. In order to avoid any such controversies in future all the High Courts that have so far not framed rules under section 34 of the Advocates Act are directed to frame the rules without any further delay. It is earnestly hoped that all the High Courts shall frame the rules within four months. The High Courts may also consider framing rules for having Advocates on Record on the pattern of the Supreme Court of India. Suborning a witness in a ' criminal trial is an act striking at the root of the judicial proceeding and it surely deserves the treatment meted out to the appellant.

But the appellants were not given any notice by the High Court that if found guilty they might be prohibited from appearing in the High Court, and the courts subordinate to it, for a certain period. To that .. "' extent the direction given by the High Court was not in conformity with the principles of natural justice. [Para 147] [1156-E-H] Ex. Capt. Harish Uppal vs. Union of India and Anr. (2003) 2 sec 45, followed. Supreme Court Bar Association vs. Union of India (1998) 4 SCC 409; Pravin C. Shah vs. K. A. Mohd. Ali and Anr. (2001) 8 SCC 650 and Bar Council of India vs. The High Court of Kera/a (2004) 6 SCC 311, referred to. 7. 1. What is of significance in 'K"s affidavit, however, is that it anticipated what in the sting recordings might prove fatal for 'RK' and 'IU' and tried to do the ground work for their defence. In regard to his meeting with 'IU', 'K' said that he met and spoke to him in the manner directed by 'P'.

He further said on affidavit that when 'IU' asked him if he had met 'Bade Saheb' he implied some senior police official but it was 'P' who forced him to say that 'IU' referred to 'RK'. Now, this is exactly what 'IU' said in his interview to the TV channel and what he would say later in his show cause to the High Court. He also said that as agreed between the two in the meeting of April 28, 2007, he again met 'IU' in the evening but the conversation that took place in that meeting exposed NDTV story and, therefore, that recording was withheld from being telecast. [Para 150] [1157-H; 1158-A-C] 7. 2. The similarity between what 'K' said in his affidavit and what 'RK~ had to say about this matter and the manner in which he would say it is unmistakable. This Court is unable to believe the manner in which 'K's affidavit fore-shadows the proceedees defence was simply coincidental.

It does not require much imagination to see that 'K' had once again switched over sides and he had joined hands with those whom he had earlier tried to trap in the stings. [Para 151] [1158-E-G] 8. 1. Of all the obstructive measures adopted before the High Court the most unfortunate and undesirable ,. . came from 'RK' in the form of a petition 'requesting' Manmohan Sarin J. , the presiding judge on the bench dealing with the matter, to recuse him from the proceeding. This petition, an ill concealed attempt at intimidation, was, as a matter of fact, 'RK's first response to the notice issued to him by the Court. He stated in this petition that he had the feeling that he was not likely to get justic~ at the hands of Manmohan Sarin J. He further stated alluding to some past events, that he had tried his A best to forget the past and bury the hatchet but the way . and the manner in which the matter was being dealt with had caused the greatest damage to his reputation.

He made the prayer that the recusal application should be heard in camera and the main matter be transferred to another Bench of which Sarin J. was not a member. Along with the petition he filed a sealed cover containing a note and the materials giving rise to the belief that he was not likely to get justice at the hands of Sarin J. [Para 156] [1160-A-D] 8. 2. Having dealt with the rest of the allegations made in the recusal application, the order, towards its end, said something which alone was sufficient to reject the request for recusal. It was pointed out that the applicant had a flourishing practice; he had been frequently appearing in the court of Sarin, J. ever since he was appointed as a judge and for the past twelve years was getting orders, both favourable and unfavourable, for his different clients. He never complained of any unfair treatment by Sarin J. but recalled his old 'hostility' with the judge only after the notice was issued to him. [Para 158] [1162-D-E] 8. 3.

The said order 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. [Para 159] [1163-C-D] 8. 4. A motivated application for recusal, therefore, needs to be dealt with sternly and should be viewed ordinarily as interference in the due course of justice leading to penal consequences. [Para 159] [1163-E] 8. 5. The other Judge on the Bench, however, it seems was unable to bear the onslaught and he took the easy way out. He expressed his inability to concur with the order passed by presiding judge observing that "the nature of the controversy before us pertains to my learned brother alone.

It revolves around a number of factual assertions, which can only be known to my learned brother personally, and which must necessarily be examined in the light of the law on the subject. "- Therefore, I consider it inappropriate to express any opinion in the matter, one way or the other. " Having passed the brief separate order he declined to take any further part in the proceeding. [Para 160] [1163-E-G] 8. 6. The said development provided 'RK' with another opportunity to carry on his offensiye further. He "\ i unhesitatingly availed of the opportunity and filed an ) ~ application for clarification/review of the order dated October 4, 2007 dismissing his recusal petition. Review was sought primarily on the ground that the order of Sarin J. was not the order by the Bench since the other judge had declined to concur with him. After the other judge opted out of the Bench, the Chief Justice put Lokur J. in his place. Consequently, the clarification/review application came before Sarin J.

, sitting with Lokur J. , and .. ,. , the first thing this Bench was told, and with some assertiveness too, was that it was not competent to hear the application and it could only be heard bythe previous Bench as it arose from an order passed by that Bench. ~ ~ The clarification/review application was rejected by a long order dated November 29, 2007 authored by Lokur J. Henceforth all substantive orders in the proceeding werewritten, not by the presiding judge, but by Lokur J. and the significance of it is not lost on us. The application for recusal though rejected was not completely unsuccessful. It left a lasting shadow on the proceeding. [Paras 161 and 162] [1164-A-D] 8. 7. 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. 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 & I of the Grounds i,, the present Memo of appeal • expressly seek to assail that order. The appellant was given ample time to consider the suggestion for withdrawing the said grounds but later, on enquiry his counsel stated that he had not pressed those grounds in course of his submissions exercising his discretion as the Counsel but he had no instructions to get those grounds deleted from the SLP. [Paras 163 and 164] [1164- E-H; 1165-A-C] 8. 8. The action of the appellant, 'RK' in trying to suborn the court witness in a criminal trial was reprehensible enough but his conduct before the High Court aggravates the matter manifold. He does not show any remorse for his gross misdemeanour and instead tries to take on the High Court by defying its authority.

The punishment given to him by the High Court was wholly inadequate and incommensurate to the seriousness of his actions and conduct. Accordingly, it is proposed to issue a notice to him for enhancement of . _ ~ punishment. By his actions and conduct the appellant has established himself as a person who needs to be ! - criminal case from going astray. An enquiry from the High Court Registry to the concerned quarters would send the message that the High Court is watching; it means business and it will not tolerate any nonsense. Even this much would help a great deal in insulating a criminal case from outside interferences. In very few cases where more positive intervention is called for, if the matter is at the stage of investigation the High Court may call for status ~ report and progress reports from police headquarter or the concerned Superintendent of Police. That alone would provide sufficient stimulation and pressure for a fair investigation of the case.

In rare cases if the High Court is not satisfied by the status/progress reports it may even consider taking up the matter on the judicial side. Once the case reaches the stage of trial the High Court obviously has far wider powers. It can assign the -. ( trial to some judicial officer who has made a reputation for independence and integrity. It may fix the venue of the trial at a proper place where the scope for any external interference may be eliminated or minimized. It can give effective directions for protection of witnesses and victims and their families. It can ensure a speedy conclusion of the trial by directing the trial court to take up the matter on a day-to-day basis. The High Court has got ample powers for all this both on the judicial and " -1 administrative sides. Article 227 of the Constitution of India that gives the High Court the authority of superintendence over the subordinate courts has great " .

' dynamism and now is the time to add to it another dimension for monitoring and protection of criminal trials. Similarly Article 235 of ~lle Constitution that vests the High Court with. the powel' of control over sub-ordinate courts should also include a positive element. It should not be confined only to posting, transfer and promotion of the officers of the subordinate judiciary. The power of control should also be exercised to protect them from _.. external interference that may sometime appear • overpowering to them and to support them to discharge their duties fearlessly.

[Para 205) [1185-D-H; 1186-A-H; 1187-A] Case Law Reference : (2001) 3 sec 739 referred to Para 66 (2001) 7 sec 530 referred to Para 66 (2002) 4 sec 21 referred to Para 67 (2003) 1 sec 644 referred to Para 67 (2001) s sec 735 referred to Para 67 (1976) 1 sec 975 referred to Para 67 (1993) 3 sec 151 referred to Para 71 (1973) 1 sec 471 referred to Para 71 (1970) 2 sec 340 referred to Para 72 (1973) 1 sec 471 referred to Para 72 (1982) 2 sec 258 referred to Para 72 (1985) Suppl sec 611 referred to Para 72 ). ' ' 1971 (1) All ER 678 referred to Para 72 ,. __'" 92 N C App. 246 referred to Para 74 (1995) 2 sec 584 relied on Para 82 (2004) 5 sec 26 relied on Para 82 (1998) 4 sec 409 referred to Para 138 (2001) 8 sec 650 referred to Para 139 if- (2003) 2 sec 45 followed Para 141 ,..

(2004) 6 sec 311 referred to Para 142 1961 3 SCR 460 referred to Para 169 (1969) 2 SCR 649 referred to Para 169 (1988) 4 sec 592 referred to Para 169 (2005) 2 sec 686 referred to Para 169 L 1993 Supp (1) sec 529 affirmed Para 201 (1995) 3 sec 619 affirmed Para 201 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1393 of 2008. From the Judgment &Order dated 21. 08. 2008 of the High ,,,. Court of Delhi at New Delhi in W. P. (Crl. ) No. 796 of 2007. WITH Crl. A. No. 1451 of 2008. Gopal Subramaniam, ASG (A. C. ), L. Nageswara Rao (A. C. ), Altaf Ahmad, P. P. Rao, S. K. Agarwal, Harish N. Salve, Sanjay Jain, Balaji Subramanian, Anand Varma, Siddhartha Dave, Deeptakirti Verma, Uday Gupta, Dharmendra Kumar ,. 4 Sinha, D. S. Chadha, Huzefa Ahmedi, S. A. Hashmi, Vikas Arora, Aman Khan, H. R. Khan Suhel, Arun K. Sinha, Rakesh Singh, Sumit Sinha, Vijay K. Sondhi, Varun Pareek, Kapil Arora, Wasin Beg, Subramonium Prasad for the Appearing YI · by a truck.

But the police was adamant not to change the version of the FIR that was already registered and on the basis of which five persons were arrested. The police forced him to support its story, and his earlier statements were made under police coercion. 9. On September 23, 1999 a clash took place between some policemen and some members of the bar in the Patiala House court premises for the 'custody' of Kulkarni. A complaint ... about the alleged high handed actions of the police was __. formally lodged before the court and a notice was issued to the Jt. Commissioner. In response to the notice the Jt.. Commissioner submitted a long and detailed report to the court on September 27, 1999. In the report, apart from defending the ). _ action of the policemen the Jt. Commissioner had a lot of things to say about Kulkarni's conduct since he became a witness for the prosecution in the BMW case. He noted that he woμld never ~ give his address or any contact number to any police official.

His life style had completely changed. He lived in expensive hotels and moved around in big cars. The Jt. Commissioner enclosed with his report a copy of the print-out of the cell phone of Kulkarni (the number of which he had given to one of the police officers) that showed that as early as on July 17, 1999 he was in touch with the counsel for the defence RK Anand (one of the appellants) and his junior Mr. Jai Bhagwan, Advocate and even with Suresh Nanda, father of Sanjeev Nanda. He cited .... several other instances to show Kulkarni's duplicity. The long and short of the report was that Kulkarni was bought off by the defence. He was in collusion with the defence and was receiving fat sums of money from the family of the accused. He was trying to play the two ends against the middle and he was completely unreliable. 10. On September 30, the date fixed for his examination, . ,. ~ Kulkarni was duly present in court.

He was, however, represented by his own lawyer and not by the_ prosecuting counsel. He was quite eager to depose. But the prosecution • -- . their behalf. While the case was fixed for defence evidence two. applications came to be filed before the trial court, one was at the instance of the prosecution seeking a direction to the accused Sanjeev Nanda to give his blood sample for analysis and comparison with the blood stains found in the car and on his clothes, and the other by the defence under section 311 of CrPC for recalling nine prosecution witnesses for their further cross-examination. By order dated March 19, 2007 the trial court rejected both the applications. It severely criticised the .. police for trying to seek its direction for something for which the law gave it ample power and authority. It also rejected the petition by the defence for recall of witnesses observing that the power under section 311 of CrPC was available to the court and not to the accused.

At the end of the order the court observed that the only witness in the case whose statement was recorded under section 164 of CrPC was Kulkarni and even though he was given up by the prosecution, the court felt his examination essential for the case. It, accordingly, summoned Kulkarni to appear before the court on May 14, 2007. Kulkarni thus bounced back on the stage with greater vigour than before. MEDIA INTERVENTION: 13. In the trial court the matter was in this state when another chapter was opened up by a TV channel with which we are primarily concerned in this case. On April 19, 2007 one Vikas Arora, Advocate, an assistant of IU Khan sent a complaint in writing to the Chief Editor, NDTV with copies to the Commissioner of Police and some other authorities.

In the complaint it was alleged that one Ms Poonam Agarwal, 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 ,tit she had threatened to expose them through some unknown person and to let the people know that the police and the public prosecutor had been influenced and bribed by the accused party. He requested the authorities to take appropriate action .... against Poonam Agarwal. 14. On April 20, 2007 NDTV telecast a half hour special programme on how the BMW case was floundering endlessly even after more than seven years of the occurrence. Apparently, the telecast on April 20, 2007 brought Poonam Agarwal and Kulkarni together.

According to Poonam Agarwal, on April 22, 2007 she received a phone call from Kulkarni who said that he ~ was deeply impressed by the programme telecast by her channel and requested for a meeting with her. (The version of Kulkarni is of course quite different). S,he met him on April 22 and 23. He told her that in the BMW case the prosecution was hand in glove with the defence; he wanted to expose the nexus between the prosecution and the defence and needed her help in that regard. Poonam Agarwal obtained the approval of her superiors and the idea to carry out the sting operation using Kulkarni as the decoy was thus conceived. 15. Even while the planning for the sting operation was going on, NDTV on April 26·gave reply to the notice by Vikas Arora. In their reply it was admitted that Poonam Agarwal had sought an interview with Arora's senior which was denied for reasons best known to him.

All other allegations in Arora's notice were totally denied and it was loftily added that the people at NDTV were conscious of their responsibilities and obligations and would make continuous efforts to unravel the truth as a responsible news channel. 16. On April 28, 2007 Kulkarni along with one Deepak Verma of NDTV went to meet IU Khan in the Patiala House court premises. For the mission Poonam Agarwal 'wired' Kulkarni, that is to say, she equipped him with a concealed camera and a small electronic device that comprised of a tiny black button-shaped lens attached to his shirt front connected ... through a wire to a small recorder with a microchip hidden at his backside. Before sending off Kulkarni she switched on the camera and waited outside the court premises in a vehicle. ~ -1' Deepak Verma from the TV channel was sent along to ensure that everything went according to plan. He was carrying another • concealed camera and the recording device in his nandbag.

Kulkarni and Deepak Verma were able to meet IU Khanwhile he was sitting in the chamber of another lawyer. Kulkarni entered into a conversation with IU Khan inside the crowded chamber (the details of the conversation we will examine later on at its proper place in the judgment). The conversation ~ between the two that took place inside the chamber was ,,,; recorded on the microchips of both the devices, one worn by Kulkarni and the other carried by Deepak Verma in his bag. After a while, on Kulkarni's request, both IU Khan and Kulkarni came out of the chamber and some conversation between the two took place outside the chamber. The recording on the microchip of Kulkarni's camera was copied onto magnetic tapes and from there to compact discs (CDs). The microchip in Kulkarni's camera used on April 28, 2007 was later reformatted for other uses.

Thus, admittedly that part of the conversation between Kulkarni and IU Khan that took place on April 28, 2007 outside the chamber is available only on CD and the microchip on which the original recording was made is no longer available. The second operation was carried out on May 6, 2007 when Kulkarni met RK Anand i11 the VIP lounge at the domestic terminal of IGI Airport. The recording of the meeting was made on the microchip of the concealed camera carried " by Kulkarni. 17. On May 8, 2007 the third sting operation was carried out when Kulkarni got into the back seat of RK Anand's car that was standing outside the Delhi High Court premises. RK Anand was sitting on the back seat of the car from before. The recording shows Kulkarni· and RK Anand in conversation as they travelled together in the car from Delhi High Court to South Extension. and completely unreliable. 28.

NDTV took the interview of RK Anand even as the first telecasts were on and thus what he had to say on what was being shown on the TV was fully integrated in the eight o'clock and nine o'clock programmes on May 30. IU Khan was interviewed on the following morning when a reporter from the TV channel met him at his residence with a mobile transmission unit. The interview was live telecast from around eight to twenty three past eight on the morning of May 31. But that was the only time his interview was telecast in full. In the programmes telecast later on, one or two sentences from his interview were used by the anchor to make her comments. 29. In his interview IU Khan basically maintained that from the clandestine recording of his conversation with Kulkarni, pieces, were used out of context and selectively for making the programme and what he spoke to Kulkarni was deliberately misinterpreted to derive completely wrong inferences.

He further ma;ntained that in his meeting with Kulkarni he had said nothing wrong much less anything to interfere with the court's proceeding in the pending BMW case. Impact of the telecast: ' 30. On the same day IU Khan withdrew from the BMW case as Special Public Prosecutor. Before his withdrawal, however, he produced before the trial court a letter that finds mention in the trial court order passed on that date, written in -l " · the hand of Kulkarni stating that he collected the summons issued to him by the court from SHO, Lodhi Colony Police Station on the advice of IU Khan. 31. The trial court viewed the telecast by NDTV very seriously and issued notice to its Managing Director directing to produce 'the entire unedited original record of the sting operation as well as the names of the employees/reporters of .. NDTV who were part of the said sting operation' by the following .. day. 32.

The further cross-examination of Kulkarni was deferred to another date on the request of the counsel replacing IU Khan as Special Public Prosecutor. 33. On June 1, 2007, RK Anand had a legal notice sent to NDTV, its Chairman, Directors and a host of other staff asking them to stop any further telecasts of their BMW programme and to tender an unconditional apology to him failing which he would take legal action against them inter alia for damages amounting to rupees fifty crores. NDTV gave its reply to the legal notice on July 20, 2007. No further action was taken by RK Anand in pursuance of the notice. HIGH COURT TAKES NOTICE: 34. On the same day (May 31, 2007) a Bench of the Delhi High Court presided over by the Chief Justice took cognisance of the programme telecast by NDTV the previous evening and felt compelled to examine all the facts.

The Court, accordingly, directed the Registrar General 'to collect all materials that may be available in respect of the telecast including copies of CDs/ Video and transcript and submit the same for consideration within 10 days'. The court further directed NDTV 'to preserve the original material including the CDsNideo pertaining to the aforesaid sting operation. ' 35. In response to the notice issued by the trial court, NDTV produced before it on June 1, 2007 two microchips and a recorder with the third chip inside it. The chips were said to contain the original recordings. In addition to the chips and the recorder NDTV also produced 5 CDs that were copies of the original, unedited recordings on the three chips. It was brought to the notice of the trial court that the High Court had also issued notice to NDTV in the same matter. The trial court, accordingly, stopped its inquiry and returned everything back ~ to NDTV for production before the High Court. ~ 36. On June 2, 2007, Ms.

Poonam Agarwal of NDTV submitted before the High Court six CDs; one of the CDs (marked '1') was stated to be edited and the remaining five (marked '2'-'6') unedited. In a written statement given on the same day she declared that NDTV News Channel did not have any other material in connection with the sting operation. She also stated that in accordance with the direction of the t Court, NDTV was preserving the original CDs/ Videos relating to the sting operation. On June 6, 2007, Poonam Agarwal submitted true transcripts of the CDs duly signed by her on each page. She also gave a written statement on that date stating that the CDs submitted by her earlier were duplicated from a tape-recording prepared from four spy camera chips which were recorded on different occasions. (As we shall see later on, the total number of microchips used in all the four stings ~ was actually five and not four).

She also gave the undertaking, on behalf of NDTV that those original chips would be duly preserved. 37. On June 11 (during summer vacation) the Court recorded the statement of the counsel appearing for NDTV that its order dated May 31 had been fully complied with. On July 9 after hearing counsel for NDTV and on going through the earlier orders passed in the matter the Court felt the need for a further ~. affidavit regarding the telecast based on the sting operation. It, accordingly, directed NDTV to file an affidavit 'concerning the sting operation from the stage it was conceived and the attendant circumstances, details of the recording done, i. e. , the time and place etc. and other relevant circumstances'. In compliance with the Court's direction, Poonam Agarwal filed an affidavit on July 23, 2C07. 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 stated in the affidavit that the people at NDTV were greatly concerned over the manner in which a number of trials had ended up in acquittal on account " of witnesses turning hostile, especially in cases in which accused were influential people. NDTV, as a news channel, was trying to uncover the causes behind this malaise and it was in this spirit that the channel decided to help Kulkarni. She duly told Kulkarni that NDTV was willing to help him in doing the sting operation. Kulkarni informed her that he was going to meet IU Khan in his chamber to seek his direction in connection with the court summons issued to him and that would be good a opportunity for doing the sting. Accordingly, she along with one Deepak Verma (a camera person from the TV channel) met Kulkarni outside the Patiala House court premises. She fitted ,.

) compact disc the microchip used in Kulkarni's camera was formatted for other projects but the microchip in the camera in Deepak Verma's bag was available undisturbed. Kulkarni next calleCl to tell her that he was meeting RK Anand at the IGI Airport (Domestic Terminal) and suggested to do a sting there. She, accordingly, took her to the airport on May 6, 2007. There she fitted him with the hidden camera and the recording device, t switched the camera on and send him off to meet RK Anand. She herself waited for him in her car. After meeting with RK Anand, Kulkarni came out of the airport building and contacted her on the cell phone to find out where her car was parked. He then came back to the car. She switched off the camera and brought her back to her office. Kulkarni again contacted her to say that he was meeting RK Anand on May 8. This time she met him near the Delhi High Court and in her vehicle equipped ,,, him with the hidden camera and switched it on.

She waited in her vehicle while Kulkarni got into the back seat of a black car outside the Delhi High Court in which RK Anand was sitting from before. The car with Kulkarni and RK Anand drove off and she followed them in her vehicle. They went to South Extension, New Delhi where Kulkarni was dropped. He came back to her vehicle and joined her. She then switched off the camera. She stated in the affidavit that all along the way from outside the Delhi High Court to South Extension the car in which Kulkarni and -" ,. RK Anand were travelling did not stop anywhere except at the red lights on the crossings. She also averred that all along the way she followed the car in her own vehicle and it always remained in her sight. On the same day Kulkarni told her that he was scheduled to meet RK Anand in his office at South Extension Part II. They together went to South Extension and from there Kulkarni telephoned RK Anand.

He told her that he was asked to wait there at a particular spot where someone would come to meet him. After a short while Bhagwan Sharma arrived there whom she knew from before as an advocate associated with RK Anand. At that time they were in her vehicle. She 'wired' Kulkarni, like the earlier occasions, and he went to meet Bhagwan Sharma at the fixed spot. For a little while she lost them from her sight. She then contacted Kulkarni on his cell phone and he, feigning to be talking to his wife, indicated to her the exact spot where he was at that moment. She approached that spot and found that Bhagwan Sharma had gone away and Kulkarni was talking with a Sikh person whom he later identified as 'Lovely'. They moved around and talked 0 for a pretty long time. In the end Lovely got into his car and drove away. Kulkarni then called her on the cell phone to find out where her vehicle was pa:-ked. He came back to her. She switched off the camera.

He narrated to her what transpired in the meetings with Bhagwan Sharma and Lovely. She stated in the affidavit that the entire episode lasted for over an hour and half. All through she had Kulkarni in her sight except for the short period as indicated above. She also stated that as the episode went on for a long time the batteries of the hidden camera got exhausted and, therefore, the recording of the meeting ended abruptly. Once all the material collected in course of the sting operations came in possession of NDTY it was carefully examined and evaluated and the editorial team at NDTY came to the view that in the larger public interest it was their duty to put the whole matter in the public domain. The decision was thus taken to telecast a special programme under the caption 'BMW expose'. The recordings made in the sting operations were then very carefully edited for making a programme that could be telecast. The process of editing took three days.

The chips were copied onto CDs in her presence and under her supervision. She, at all time, retained the custody of the original chips. At §ii $UC 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 koi message naf-ii mil raha tha phir panga yeh ho raha ki when u told me I c! on't want to discuss. " "Kul:"beech main aap par gussa ho gaya tha. (Beech me aap par gussa ho gaya tha, aap ka koi neta log hain, ek aaddmi jisne mere ko aisa kheencha tha). Kul: vo aapka ek neta log hain ek Neta isne mereko aisa Kheecha tha (Ek neta tha usne mere kko aisa kheencha tha, aisa kheencha tha, bola sahib ne milne ko manakar diya, bigar gaya, kaha bhag jao, bhag jao, aisa bola).

" "From the above transcript, it is clear that the Respondent had no intention at any time to meet the said witness. He was thrown out physically from the office of Respondent. He was told not to meet the Respondent as they are not interested in any one. " Similarly in paragraph Z10 it is stated as follows: "Z10....... The deponent has never tried or intended to influence this witness so as to interfere in the course of justice. On the other hand, deponent have rebuked and rebuffed him & told him not to ask for any money. Rather the witness was advised to 'speak the truth and not to falsely implicate the Nanda's. Respondent has gone to the extent of telling him to have fear from God since everyone is answerable for his acts to God ........ " And again in paragraph 17 it is stated as follows: "17............. The deponent had no intention to discuss the subject matter of the case with Sunil Kulkarni. The .

discussion was started by Sunil Kulkarni b{alleging that; Kul "kal kya mereko nikaal rahe ho kya... 311 se. " Anand: Karoon ... r Kulkarni· nahi KulkarniNo, nahi nikalna Kulkarni nahi, nahi, mat nikalna.. withdraw karva lo na aap. Jab Main aapke saath ho jo marzi karne ke liya tyaar ho to yeh kay ke liye High Court main lagwa diya aapne... mere upar aapko itna bhi bharosa nahin hain kya.. theek hain gussa ho jata hoon main .... Kulkarni lekin aana hain depose karma hain. " "The aforesaid transcript of Sunil Kulkarni would clearly indicate that he himself was suggesting that he is prepared to make any kind of statement. It is not that the deponent wanted him to make a statement in a particular manner. It is not that the deponent was trying to influence the witness. The witness had already taken a decision to make a + statement in a particular manner norat the instance of the depo_nent. " 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 Shi 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: kabhi kisika bura mat kiya karo.

Anand: Kabhi kisi ka bura nahin l 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 i record can impose in a case of established contempt under the common law have now been specifically incorporated in the Contempt of Courts Act, 1971 insofar as the High Courts are concerned and therefore to the extent the Contempt of Courts Act, 1971 identifies the ' ' nature or types of punishments which can be awarded in the case of established contempt, it does not impinge upon the inherent powers of the High Court under Article 215 either. No new type of punishment can be created or assumed.

" In paragraphs 39 & 40 it observed: "39. Suspending the licence to practise of any professional like a lawyer, doctor, chartered accountant etc. when such a professional is found guilty of committing contempt of court, for any specified period, is not recognised or accepted punishment which a court of record either under the common law or under the statutory law can impose on a contemnor in addition to any of the other recognised punishments. " "40. The suspension of an advocate from practise and his removal from the State roll of advocates are both punishments specifically provided for under the Advocates ~ Act, 1961, for proven "professional misconduct" of an advocate. While exercising its contempt jurisdiction under Article 129, the only cause or matter before this Court is regarding commission of contempt of court. There is no .. cause of professional misconduct, properly so called, pending before the Court.

This Court, therefore, in exercise of its jurisdiction under Article 129 cannot take over the jurisdiction of the Disciplinary Committee of the Bar Council of the State or the Bar Council of India to punish an advocate by suspending his licence, which punishment can only be imposed after a finding of "professional misconduct" is recorded in the manner prescribed under the Advocates Act and the Rules framed thereunder. " In Paragraph 57 it observed: 57. In a given case, an advocate found guilty of committing contempt of court may also be guilty of committing "professional misconduct", depending upon the gravity or nature of his contumacious conduct, but the two jurisdictions are separate and distinct and exercisable by different forums by following separate and distinct procedures.

The power to punish an advocate by suspending his licence or by removal of his name from the roll of the State Bar Council for proven professional misconduct vests exclusively in the statutory authorities created under the Advocates Act, 1961, while the jurisdiction to punish him for committing contempt of court vests exclusively in the courts. " 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, co:itumacious, 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 himself of contempt.

Kerala High Court has framed Rules under section 34 of the Advocates Act and rule 11 reads thus: "No advocate who has been found guilty of contempt of court shall be permitted to appear, act or plead in any court unless he has purged himself of the contempt. " 140. An Advocate, notwithstanding his conviction for contempt of Court by the Kerala High Court continued to freely appear before the courts. A complaint was made to the Kerala State Bar Council on which a disciplinary proceeding was initiated against the advocate concerned and finally the State Bar Council imposed a punishment on him debarring him from acting or pleading in any court till he got himself purged of the contempt of court by an order of the appropriate court. The concerned advocate challenged the order of the State Bar Council in appeal before the Bar Council of India. The Bar Council of India allowed the appeal and set aside the interdict imposed on the advocate.

The matter was brought in appeal before this Court and a two judges' Bench hearing the appeal framed the question arising for consideration as follows: "When an advocate was punished for contempt of court can he appear thereafter as a counsel in the courts, unless he purges himself of such contempt? If he cannot, then what is the way he can purge himself of such contempt? " The Court answered the question in paragraphs 27, 28 and 31 of the judgment as follows: "27. We cannot therefore approve the view that merely undergoing the penalty imposed on a contemnor is sufficient to complete the process of purging himself of the contempt, particularly in a case where the contemnor is convicted of criminal contempt.

The danger in giving accord to the said view of the learned Single Judge in the aforesaid decision is that if a contemnor is sentenced to a fine he can immediately pay it and continue to commit contempt in the same court, and then again pay the fine and persist with his contemptuous conduct. There must be something more to be done to get oneself purged of the contempt when it is a case of criminal contempt. " "28. The Disciplinary Committee of the Bar Council of India highlighted the absence of any mode of purging oneself of the guilt in any of the Rules as a reason for not following the interdict contained in Rule 11. Merely because the Rules did not prescribe the mode of purging oneself of the guilt it does not mean that one cannot purge the guilt at all.

The first thing to be done in that direction when a contemnor is found guilty of a criminal contempt is to implant or infuse in his own mind real remorse about his conduct which the court found to have amounted to contempt of court. Next step is to seek pardon from the court concerned for what he did on the ground that he really and genuinely repented and that he has resolved not to commit any such act in future. It is not enough that he tenders an apology. The apology tendered should impress the court to be genuine and sincere. If the court, on being impressed of his genuineness, accepts the apology then it could be said the contemnor has purged himself of 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 continue to be under the spell of the interdict contained in Rule 11 of the Rules. " 141. More importantly, another Constitution Bench of this Court in Ex. Capt. Harish Uppal vs. Union of India and Another, (2003) 2 SCC 45, examined the question whether lawyers have a right to strike and/or give a call for boycott of Court(s). In paragraph 34 of the decision the Court made highly illuminating observations in regard to lawyers' right to appear before the Court and sounded the note of caution for the lawyers. Para 34 of the decision need to be reproduced below: "34.. One last thing which must be mentioned is that the right of appearance in courts is still within the control and jurisdiction of courts.

Section 30 of the Advocates Act has not been brought into force and rightly so. Control of conduct in court can only be within the domain of courts. Thus Article 145 of the Constitution of India gives to the Supreme Court and Section 34 of the Advocates Act gives to the High Court power to frame rules including rules regarding condition on which a person (including an advocate) can practise in the Supreme Court and/or in the High Court and courts subordinate thereto. Many courts have framed rules in this behalf. Such a rule would be valid and binding on all. Let the Bar take note that unless self-restraint is exercised, courts may now have to consider framing specific rules debarring advocates, guilty of contempt and/or unprofessional or unbecoming ; conduct, from appearing before the courts. Such a rule if framed would not have anything to do with the disciplinary jurisdiction of the Bar Councils. It would be .. concerning the dignity and orderly functioning of the courts.

The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for his clients before an arbitrator or arbitrators etc. Such a rule woul~ have nothing to do with all the acts done by an advocate during his practice. He may even file vakalat on behalf of a client event though his appearance inside the court is not permitted. Conduct in court is a matter concerning the court and hence the Bar Council cannot claim that what should happen inside the court c::ould also be regulated by them in exarcise of their disciplinary powers. The right to practise,