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

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 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] E ~ ~ ~

4.1. The High Court held that there was an F 1 extraordinary degree of familiarity between 'IU', 'K' and '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 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 D '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 .. G H "'-.. ... ~ -4- :..- .. """ 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-A- B 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 howsoever strong cannot take the place of proof and this 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] D

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 the benefit of doubt. [Paras 130 and 131] [1142-C-F] G

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 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 channel and in any event it does not have any bearing on the final decision of the case. [Para 133] [1143-B-E] D

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 I> • ,. " .. ,. 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 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] E F ~ .... -../

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 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] D

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] [1156-E-H] 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.