# R.K. ANAND :i v. REGISTRAR, DELHI HIGH COURT

- **Citation:** [2009] 11 S.C.R. 1026
- **Court:** Supreme Court of India
- **Decided:** 2009-07-29
- **Case number:** Criminal Appeal No. 1393 of 2008
- **Bench:** B.N. Agrawal, G.S. Singhvi, Aftab Alam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-k-anand-i-v-registrar-delhi-high-court-25006
- **Pages:** 162

## Headnote

CONTEMPT OF COURTS ACT, 1971:
._
~
c
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
D
Counsel (RK) and the Special Public Prosecutor (IU) who
were seen .discussing with the Prosecution witness (K) in the
sting operation - Not satisfied with the explanation of the
t
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
E 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
..;
F 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
G 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
H
1026
R.K. ANAND v. REGISTRAR, DELHI HIGH COURT
1027
----1
instead tried to take on the High Court by defying its authority A
-
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
B
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 c
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 D
take place of proof - Hence it would not be wholly prudent to
~
rely upon the exchanges between 'K' and 'RK' to record a
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
E
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
F
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 G
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.
H
1028
SUPREME COURT REPORTS [2009] 11 S.C.R.
A
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
8 pro-active role in such matters - The powers are not confined
only to po

## Text

_Characters 0–39,945 of 310,730. This is a partial read: ask again with offset=39945 for what follows._

[2009] 11 S.C.R. 1026
A
R.K. ANAND
:i.--
v.
REGISTRAR, DELHI HIGH COURT
(Criminal Appeal No. 1393 of 2008)
B
JULY 29, 2009
[B.N. AGRAWAL, G.S. SINGHVI AND AFTAB ALAM, JJ.]
CONTEMPT OF COURTS ACT, 1971:
._
~
c
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
D
Counsel (RK) and the Special Public Prosecutor (IU) who
were seen .discussing with the Prosecution witness (K) in the
sting operation - Not satisfied with the explanation of the
t
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
E 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
..;
F 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
G 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
H
1026
R.K. ANAND v. REGISTRAR, DELHI HIGH COURT
1027
----1
instead tried to take on the High Court by defying its authority A
-
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
B
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 c
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 D
take place of proof - Hence it would not be wholly prudent to
~
rely upon the exchanges between 'K' and 'RK' to record a
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
E
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
F
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 G
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.
H
1028
SUPREME COURT REPORTS [2009] 11 S.C.R.
A
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
8 pro-active role in such matters - The powers are not 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.
~
c
ADVOCATES ACT, 1961:
Section 34 - Debarring an Advocate from appearing in
Court - In a matter as fundamental and grave as preserving
D 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
E 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
F 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
G
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
H
R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1029
·J
Record on the pattern of the Supreme Court of India -
A
Contempt of c;ourts Act, 1971, Sections 12, 14, 17 -
Administrative Law - Principles of Natural Justice.
STING OPERATION BY TV CHANNELS:
Sting operation conducted by NDTV in BMW case - The
8
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
C
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
D
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.
E
An English News Channel NDTV telecast a
F
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
G
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
H
1030
SUPREME COURT REPORTS [2009) 11 S.C.R.
A '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
B 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
c 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
0 subordinate to it for a period of four months from the date
of the judgment. It, however, left them free to carry on
their other professional work, e. g., 'consultations,
advises, conferences, opinion etc'. It also held that 'RK'
and 'IU' had forfeited their right to be designated as
Senior Advocates and recommended to the Full Court to
E 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.
F
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
G 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
H the courts sub-ordinate to it for a specified period as one
,-... ..
R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1031
-~
of the punishments for criminal contempt_ of court?
A
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
B
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 c
before the court.
6. The declining professional standards among
,,.
lawyers, and
7. The root-cause behind the whole affair; the way D
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
E
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
F
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
G
those principles apply to the contempt proceeding with
"' .j
greater rigour than any other proceeding. This means·
that the Court must follow a procedure that is fair and
objective; that should cause no prejudice to the person
H
1032
SUPREME COURT REPORTS [2009] 11 S.C.R.
A 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
B 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,
•
c (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
D (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.
E
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 &
F 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.
G
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,
H
R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1033
~
he impliedly admitted meeting 'K' for the second time in
A
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
B
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
_...,
c
on the camera in the wrong act, rather than outraged at
any false accusations. [Para 85] [1113-E-F]
-11::
2.3. Immediately after the telecast 'RK' sent a legal
notice to NDTV threatening legal actions against them
and demanding a. huge sum as compensation. NDTV
D
....
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'
E
-
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
F
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
G
summoning 'K' as court witness was heard on several
dates in May 2007 before the telecast of the programme
--- .j
by ND1V. He was equally duty bound to inform the trial
court about 'K's approaches and the sting done on him
by 'S' when 'K' was examined before it on May 14, 17 &
H
1034
SUPREME COURT REPORTS [2009] 11 S.C.R.
A 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
B some point or the other in his defence. [Para 90) [1115E]
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
..
c 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
.-
D 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
E 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
F 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
G 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
H against him. He was given fullest opportunity to defend
R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1035
·-~
himself and to explain his conduct as appearing from the
A
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
B
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 c
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
D
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
E
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.
F
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
G
submitted before the High Court. The explanation in the
'-
4
form of affidavit came on October 1, 2007 on the same
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
H
1036
SUPREME COURT REPORTS (2009] 11 S.C.R.
A this Court should have wished that it was free from such
"'1- ,,
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
8 above in respect of 'RK' thus remains completely
unaffected by the mistakes pointed out here. [Para 102]
[1125-E-G]
.)
3.4. 'IU' does not deny the conversation that is shown
..
c
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
D 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
E 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,
F 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
G '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
H
deposition before the trial court 'K' used the expression
R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1037
'Bade Saheb' to mean a senior police officer. It further
A
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
B
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 c
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 D
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 E
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 F
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 G
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
H
1038
SUPREME COURT REPORTS [2009] 11 S.C.R.
A 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-
"
c 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
D
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
E 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
'
F 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'
G 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
H place outside the chamber was worse. Inside the
R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1039
~ ...
chamber, at one stage, 'IU' seemed even dismissive of 'K'
A
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
B
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 c
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 D
~ 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
E
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
F
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
G
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,
H
1040
SUPREME COURT REPORTS [2009] 11 S.C.R.
A 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
B 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
~
c 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
D
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
E 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'
F 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
G 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
H following any well known and well established format. In
R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1041
"'-..
that situation it was only fair to give notice to the
A
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-AB
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 c
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 D
howsoever strong cannot take the place of proof and this
-4Court 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
E
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
F
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
G
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
H
1042
SUPREME COURT REPORTS [2009] 11 S.C.R.
A thought would show the rationale behind it. If the
I> •
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
B 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
"
c 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
D 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
E 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
F 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
G 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.
H Such a course would have put the proceeding on a more
R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1043
~-~
even keel and given it a more balanced appearance. Then
A
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
B
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 c
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
D
....
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
E
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] [1155F
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
G
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
H
1044
SUPREME COURT REPORTS [2009] 11 S.C.R.
A 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
B 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
c 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
D 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
E 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
F 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
G 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]
H [1156-E-H]
R.K. ANAND v. REGISTRAR, DELHI HIGH COURT 1045
Ex. Capt. Harish Uppal vs. Union of India and Anr. (2003)
A
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
B
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',
C
'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
D
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
E
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
F
to see that 'K' had once again switched over sides and
he had joined hands with those whom he had earlier tried
G
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
H
1046
SUPREME COURT REPORTS [2009] 11 S.C.R.
A 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
B 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
.-
c 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.
D 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
E 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
F appointed as a judge and for the past twelve years was
getting orders, both favourable and unfavourable, for his
different clients.