REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1393 OF 2008

R.K. Anand                                     ….Appellant

Versus

Registrar, Delhi High Court      …..Respondent

W I T H

CRIMINAL APPEAL NO. 1451 OF 2008

I.U.  Khan              ….Appellant

Versus

Registrar, Delhi High Court            ….Respondent

J U D G M E N T

AFTAB ALAM, J.

1. The present is a fall out from a criminal trial arising from a hit and run accident on a cold  

winter morning in Delhi in which a car travelling at reckless speed crashed through a police check  

post  and  crushed to  death  six  people,  including three  policemen.  Facing the  trial,  as  the  main  

accused, was a young person called Sanjeev Nanda coming from a very wealthy business family.  

According to the prosecution, the accident was caused by Sanjeev Nanda who, in an inebriated state,  

was driving a black BMW car at very high speed.  The trial, commonly called as the BMW case,  

was meandering endlessly even after eight years of the accident and in the year 2007, it was not  

proceeding very satisfactorily at all from the point of view of the prosecution. The status of the main  

accused coupled with the flip flop of the prosecution witnesses evoked considerable media attention

and public interest.  To the people who watch TV and read newspapers it was yet another case that  

was destined to end up in a fiasco. It was in this background that a well known English language  

news channel  called New Delhi  Television (NDTV) telecast  a programme on May 30,  2007 in  

which one Sunil Kulkarni was shown meeting with IU Khan, the Special Public Prosecutor and RK  

Anand, the Senior Defence Counsel (and two others) and negotiating for his sell out in favour of the  

defence for a very high price. Kulkarni was at one time considered the most valuable witness for the  

prosecution but afterwards, at an early stage in the trial, he was dropped by the prosecution as one of  

its witnesses. Nearly eight years later, the trial court had summoned him to appear and give his  

testimony as a court witness. The telecast came a few weeks after the court order and even as his  

evidence in the trial was going on.  According to NDTV, the programme was based on a clandestine  

operation carried out by means of a concealed camera with Kulkarni  acting as the mole.  What  

appeared in the telecast was outrageous and tended to confirm the cynical but widely held belief that  

in  this  country the  rich  and  the  mighty enjoyed  some kind  of  corrupt  and  extra-constitutional  

immunity that put them beyond the reach of the criminal justice system. Shocked by the programme  

the Delhi High Court suo moto initiated a proceeding (Writ Petition (Criminal) No.796 of 2007). 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 Anand, IU Khan and Bhagwan Sharma,  

an  associate  advocate  with  RK  Anand  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.  

(In the sting operations there was another person called Lovely who was apparently sent to meet  

Kulkarni as an emissary of RK Anand. But he died in a freak accident even before the stage of  

issuance of notice in the proceeding before the High Court). On considering their show cause and  

after hearing the parties the High Court expressed its displeasure over the role of Bhagwan Sharma  

but acquitted him of the charge of contempt of court. As regards RK Anand and IU Khan, 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 vide judgment and order dated August 21, 2008 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 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 Anand and IU Khan 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.

2. These two appeals by RK Anand and IU Khan respectively are filed under section 19 (1)  

of the Contempt of Courts Act against the judgment and order passed by the Delhi High Court.

THE CONTEXT:

3. Before proceeding to examine the different issues arising in the case it is necessary to  

first know the context in which the whole sordid episode took place. It will be, therefore, useful to  

put together the basic facts and circumstances of the case at one place. The occurance in which six  

people lost their lives was reconstructed by the prosecution on the basis of police investigation as  

follows:

The crime, the Police investigation & proceedings before the Trial court:

4. On January 10, 1999 at about half past four in the morning a speeding vehicle crashed  

through a police check-post on one of the Delhi roads and drove away leaving behind six people  

dead or dying. As the speeding car hit the group of persons standing on the road some were thrown  

away but two or three persons landed on the car’s bonnet and rolled down to the ground under it.  

The car, however, did not stop. It moved on dragging along the persons who were caught in its  

underside. It halted only after the driver lost control and going down a distance of 200-300 feet hit  

the road divider. At this point the occupants came down from the car to inspect the scene. They  

looked at the front and the rear of the car and would not have failed to notice the persons caught  

under the car who were still crying for help and who perhaps might have been saved if they were

taken out even at that stage. But the anxiety of the car’s occupants to leave the accident site without  

delay seemed to override all other considerations. They got back into the car, reversed it and drove  

on. The car went on dragging the unfortunate victims trapped under it to certain and ghastly death  

and left behind at the accident site dismembered limbs and dead bodies of men.  

5. The police investigation brought to light that the accident was caused by a black BMW  

car which was being driven by Sanjeev Nanda. He was returning from a late night party, under the  

influence of liquor, along with some friend(s).

6. Five days after the accident, on January 15, 1999 one Sunil Kulkarni contacted the Joint  

Commissioner of Police, Delhi, and claimed to be an eye witness to the occurrence. According to his  

story, at  the time of  the accident  he was passing through the spot,  on foot,  on his  way to  the  

Nizamuddin  Railway  Station  for  catching  a  train  for  Bhopal.  He  described  the  accident  in  

considerable detail and stated that at the sight of so many people being mowed down by the car he  

got completely unnerved. He proceeded for the railway station and on reaching there tried to ring up  

the police or the emergency number 100 but was unable to get through. He finally went to Bhopal  

and on coming back to Delhi, being bitten by conscience, he contacted the police. What was of  

significance in Kulkarni’s statement is that the accident was caused by a  car and when it stopped  

after hitting the people a man alighted from the driving seat and examined the front and rear of the  

car. Then, another person got down from the passenger seat called the other, “Sanjeev”, and urged  

that they should go. On the same day his statement was recorded by the police under section 161 of  

the Code of Criminal Procedure (CrPC). The following day he was shown Nanda’s BMW car at  

Lodhi Colony Police Station and he identified it as the one that had caused the accident. On January  

21, 1999 Kulkarni’s statement was recorded before a magistrate under section 164 of CrPC. Before  

the magistrate, in regard to the accident, he substantially reiterated the statement made before the  

police, lacing it up with details about his stay in Delhi from January 7 and his movements on the  

evening before the accident. In the statement before the magistrate the manner of identification of  

Sanjeev Nanda was also the same with the addition that after the accident when the car moved again  

the person on the driving seat was trying to look for the way by craning out his head out of the

broken glass window and thus he was able to see him from a distance of no more than three and a  

half feet when the car passed by his side. The police wanted to settle the question of the driver’s  

identification by having Kulkarni identify Sanjeev Nanda in a test identification parade but Sanjeev  

Nanda refused to take part in any identification parade. Then, on March 31, 1999 when Sanjeev  

Nanda  was  produced  in  court  Kulkarni  also  happened  to  be  there.  He  identified  him  to  the  

investigating officer as the driver of the car causing accident.  

7. Kulkarni’s arrival on the scene as an eye witness of the tragic accident got wide publicity  

and he was generally acclaimed as a champion of the public cause. He must have appeared to the  

police  too  as  godsend  but  soon  there  were  reasons  for  the  police  to  look  at  him  completely  

differently. He had given as his address a place in Mumbai. A summons issued by the trial court on  

the Mumbai address given by him returned unserved. The report  dated August 30, 1999 on the  

summons disclosed that he had given a wrong address and his actual address was not known to  

anyone. It also stated that he was a petty fraudster who had defrauded several people in different  

ways. The report concluded by saying that he seemed to be a person of shady character.  

8. At the same time Kulkarni also turned around. On August 31, 1999 a  Habeas Corpus  

petition (Writ Petition (Crl) No.846/99) was filed in the Delhi High Court making the allegation that  

he was being held by the Delhi Police in wrongful confinement. On the following day (September 1,  

1999) when the writ  petition was taken up the allegations were denied on behalf of the police.  

Moreover,  Kulkarni  was  personally present  in  Court.  The  Court,  therefore,  dismissed  the  writ  

petition without any directions. Next, Kulkarni filed a petition (through a lawyer) before the trial  

court  on September 13,  1999. In this  petition,  he stated that  on the date of occurrence, that  is,  

January 10, 1999 itself he had told the police that the accident was caused 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 would 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  no  longer  wanted  to  examine  him.  IU Khan,  the  Special  

Prosecutor filed a petition stating that on the instructions of the State he gave up Kulkarni as one of  

the prosecution witness on the ground that he was won over by the accused. He also submitted  

before the court the report of the Joint Commissioner dated September 27. The allegation that he  

was  won  over  was  of  course,  denied  both  by Kulkarni  and  the  accused.  The  court,  however,  

discharged him leaving the question open as to what inference would it draw as a result of his non-

examination by the prosecution.

11. Earlier to Kulkarni’s exit from the case, the prosecution had lost two other key witnesses.  

To begin with there were three crucial witnesses for the prosecution. One was Hari Shankar Yadav,  

an attendant on a petrol pump near the site of the tragedy; the other was one Manoj Malik who was  

the lone survivor among the victims of the accident and the third of course was Kulkarni. Hari

Shankar Yadav was examined before the court on August 18, 1999 and he resiled from his earlier  

statement made before the police. Manoj Malik was scheduled to be examined on August 30, 1999  

but he seemed to have disappeared and the police was unable to trace him out either in Delhi or at  

his home address in Orissa. On the date fixed in the case, however, he appeared in court, not with  

the prosecution team but with two other lawyers.  He was examined as a witness notwithstanding  

the strong protest by the prosecution who asked for an adjournment. Not surprisingly, he too turned  

hostile.  Lastly,  Kulkarni  too  had  to  be  dropped  as  one  of  the  prosecution  witness  in  the  

circumstances as noted above.

12. The  trial  proceeded  in  this  manner  and  over  a  period  of  the  next  four  years  the  

prosecution examined around sixty witnesses on the forensic and other circumstantial aspects of the  

case. The prosecution finally closed its evidence on August 22, 2003. Thereafter, the accused were  

examined under section 313 of CrPC and a list of defence witnesses was furnished on 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, a reporter of the TV Channel was demanding copies of statements of  

witnesses and the Police Case-diary of the BMW case and was also seeking an interview with IU  

Khan or the complainant, his junior. On their refusal to meet the demands she had threatened to  

expose them through some unknown person and to let the people know that the police and the public  

prosecutor had been influenced and bribed by the accused party. He 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). She 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. 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 handbag. Kulkarni and Deepak Verma were able to meet IU  

Khan while 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 in the VIP lounge at the domestic  

terminal of IGI Airport. The recording of the meeting was made on the microchip of the concealed  

camera carried by Kulkarni.

17. On May 8, 2007 the third sting operation was carried out 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.

18. In the evening of the same day the fourth and final sting operation was carried out in  

South Extension Part II market where Kulkarni met one Bhagwan Sharma, Advocate and another

person called Lovely. Bhagwan Sharma is one of the juniors working with RK Anand and Lovely  

appears to be his handyman who was sent to negotiate with Kulkarni on behalf of RK Anand.

19. According to Poonam Agarwal, in all these operation she was only at a little distance  

from the scene and was keeping Kulkarni, as far as possible, within her sight.

20. According to NDTV, in all these operations a total of five microchips were used. Four  

out of those five chips are available with them in completely untouched and unaltered condition.  

One microchip that was used in the camera of Kulkarni on April 28, 2007, as noted above, was  

reformatted after its contents were transferred onto a CD.   

21. On  May 13,  2007 NDTV recorded an  interview by Kulkarni  in  its  studio  in  which  

Kulkarni is shown saying that after watching the NDTV programme (on the BMW case) he got in  

touch with the people from the channel and told them that the prosecution and the defence in the  

case were in league and he knew how witnesses in the case were bought over by the accused and  

their lawyers. He also told NDTV that he could expose them through a sting operation. He further  

said that he carried out the sting operation with the help of NDTV. He first met IU Khan who  

referred him to RK Anand. He then met some people sent by RK Anand, including someone whose  

name was ‘Lovely or something like that’. As to his objective he said quite righteously that he did  

the  sting  operation  ‘in  the  interest  of  the  judiciary’.  In answer  to  one  of  the  questions  by the  

interviewer he replied rather grandly that he would ask the court to provide him security by the NSG  

and he would try to go and depose as soon as security was provided to him. In the second part of the  

interview the interviewer asked him about the accident and in that regard he said briefly and in  

substance what he had earlier stated before the police and the magistrate.

Back to the Court:

22. It is  noted above that  by order  dated March 19,  2007 the trial  court  had summoned  

Kulkarni to appear before it as a court witness on May 14, 2007. The defence took the matter to the  

Delhi High Court (in Crl. M. C. No.1035/2007 with Crl. M. 3562/2007) assailing the trial court  

order rejecting their prayer to recall some prosecution witnesses for further cross-examination and  

suo moto summoning Kulkarni under section 311 of CrPC, to be examined as a court witness. The

matter was heard in the High Court on several dates. In the meanwhile Kulkarni was to appear  

before the trial court on May 14, 2007. Hence, the High Court gave interim directions allowing  

Kulkarni to be examined by the court but not to put him to any cross-examinations till the disposal  

of the petition being argued before it. The petition was finally disposed of by a detailed order dated  

May 29, 2007. The High Court set aside the trial court order rejecting the defence petition for recall  

of certain prosecution witnesses and asked the trial court to reconsider the matter. It also held that  

the trial court’s criticism of the police was unwarranted and accordingly, expunged those passages  

from its order. However, insofar as summoning of Kulkarni was concerned the High Court held that  

there was no infirmity in the trial court order and left it undisturbed.  

23. On May 14, 2007 Kulkarni appeared before the trial court but on that date, despite much  

persuasion, the court was not able to get any statement from him. From the beginning he asked for  

an adjournment on the plea that he was not well. In the end the court adjourned the proceedings to  

May 17  with  the  direction  to  provide  him  police  protection.  On  May 17,  the  examination  of  

Kulkarni  commenced  and  he  described  the  accident  more  or  less  in  the  same  way as  in  his  

statements before the police and the magistrate. He said that the accident was caused by a black car  

(and not by a truck) but added that the car was coming from his front and its light was so strong that  

he could not see much. He said about his identification of the car at the Lodhi Colony police station.  

But on the question of identification of the driver there was a significant shift  from his earlier  

statements. He told the court that what he had heard was one of the occupants urging the other to go  

calling him “Sanch or Sanz”. He had also heard another name ‘Sidh’ being mentioned among the  

car’s occupants. In reply to the court’s question he said that in his statement before the magistrate  

under section 164 of CrPC he had stated the name ‘Sanjeev’, and not the nick names that he actually  

heard, under pressure from some police officials. He said that he was also put under pressure not to  

take the name of Sidharth Gupta and some police official told him that he was not in the car at the  

time of the accident. He said that apart from the name that he heard being uttered by the occupant(s)  

of the car and the number of persons he saw getting down from the car the rest of his statement  

under section 164 was correct. He said that actually three, and not two, persons had got down from

the  car.  The court  then asked him to  identify the  persons  who came out  of  the  offending car.  

Kulkarni identified Sanjeev Nanda who was present in court. He further said that the third occupant  

of the car was a hefty boy whom he did not see in the court. At this point IU Khan explained that he  

might be referring to Sidharth Gupta who was discharged by the order of the High Court. Kulkarni  

added that he was unable to identify the second occupant of the car and went on to declare, even  

without being asked, he could not say who came out of the driver’s side. He was shown Manik  

Kapoor, another accused in the case, as one the occupants of the car but he said that after lapse of  

nine years he was not in a position to identify him.

24. On May 29 Kulkarni was cross examined on behalf of the Prosecution by IU Khan. The  

prosecutor confronted him with his earlier statements recorded under sections 161 and 164 of CrPC  

and he took it as opportunity to move more and more away from the prosecution case. He admitted  

that Sanjeev Nanda was one of the occupants of the car but positively denied that he came out from  

the driving seat of the offending car. He elaborated that the one to come out from the driving seat of  

the car was a fat, hefty boy who was not present on that date. (It does not take much imagination to  

see that he was trying to put  Sidharth Gupta on the driving seat of the car who had been discharged  

from the case by the order of the Delhi High Court and was thus in no imminent danger from his  

deposition!).  He denied that  he disowned or changed some portions from his earlier statements  

under the influence of the accused persons. On May 29 Kulkarni’s cross-examination by IU Khan  

was incomplete and it was deferred to May 31. But before that NDTV telecast the sting programme  

that badly jolted not only everyone connected with the BMW trial but the judicial system as well.

THE TELECAST:

25. Based on  the  sting  operations  NDTV telecast  a  programme  called  India  60  Minutes  

(BMW Special) on May 30, 2007 at 8.00 p.m. It was followed at 9.00 pm, normally reserved for  

news, as ‘BMW Special’. From a purely journalistic point of view it was a brilliant programme  

designed to have the greatest impact on the viewers. The programmes commenced with the anchors  

(Ms. Sonia Singh in the first and Ms. Barkha Dutt in the second telecast) making some crisp and  

hard hitting introductory remarks on the way the BMW case was proceeding which, according to the

two anchors, was typical of the country’s legal system. The introductory remarks were followed by  

some clips from the sting recordings and comments by the anchors, interspersed with comments on  

what was shown in the programme by a host of well known legal experts.

26. It is highly significant for our purpose that both the telecasts also showed live interviews  

with RK Anand. According to the channel’s reporter, who was posted at RK Anand’s residence with  

a  mobile  unit,  he  initially declined  to  come on  the  camera  or  to  make  any comments  on  the  

programme saying that he would speak only the following day in the court at the hearing of the case.  

According to the reporter, in course of the telecast Sanjeev Nanda also arrived at the residence of  

RK Anand and joined him in his office. He too refused to make any comments on the on-going  

telecast. But later on RK Anand came twice on the TV and spoke with the two anchors giving his  

comments  on what  was being shown in  the  telecasts.  We shall  presently examine  whether  the  

programmes aired to the viewers were truly and faithfully based on the sting operations or whether  

in the process of editing for preparing the programmes any slant was given, prejudicial to the two  

appellants.  This is  of course subject  to  the premise that the Court  has no reason to suspect the  

original  materials  on which the  programme was based and it  is  fully satisfied  in regard to the  

integrity  and  authenticity  of  the  recordings  made  in  the  sting  operations.  That  is  to  say,  the  

recordings of the sting operations were true and pure and those were not fake, fabricated, doctored  

or morphed.  

27. In regard  to  the  telecast  it  needs  to  be  noted  that  though  the  sting  operations  were  

complete on May 8, 2007 and all the materials on which the telecast would be based were available  

with the TV channel, the programme came on air much later on May 30. The reason for withholding  

the telecast was touched upon by the anchors who said in their introductory remarks that after the  

sting operations were complete and just before his testimony began in court Kulkarni withdrew his  

consent  for  telecasting  the  programmes.  Nevertheless,  after  taking  legal  opinion  on  the  matter  

NDTV was going ahead with the airing of programme in larger public interest. Towards the end of  

the nine o’clock programme the anchor had a live discussion with Poonam Agarwal in which she  

elaborated upon the reason for withholding the telecast for about three weeks. Concerning Kulkarni,

Poonam Agarwal said that he was the main person behind the stings and the sting operation was  

planned at his initiative. He had approached her and said to her that he wished to bring out into the  

open the nexus between the prosecution and the defence in the BMW case. He had also said to her  

that in connection with the case he was under tremendous pressure from both sides. But after the  

stings were complete he changed his stand and would not agree to the telecast of the programme  

based on the stings. In the discussion between the anchor and Poonam Agarwal it also came to light  

that initially NDTV had seen Kulkarni as one of the victims of the system but later on he appeared  

in highly dubious light.  The anchor said that they had no means to know if he had received any  

money from any side. Poonam Agarwal who had the occasion to closely see him in course of the  

sting operations gave instances to say that he appeared to her duplicitous, shifty 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 maintained 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 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  CDs/Video  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 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, 2007.

Poonam Agarwal’s Affidavit:

38. In her affidavit Poonam Agarwal stated that she was a reporter working with NDTV. She  

had joined the TV channel two years ago. She stated that NDTV was covering the BMW trial and  

had telecast a special programme on the case on April 20, 2007. Two days later Kulkarni contacted  

her on telephone and requested for a meeting saying that he had something important to tell her  

about the case. She met him on April 22 and 23. In the second meeting he was accompanied by his  

wife. He told her that there was a strong nexus between the prosecution and the defence in that case

and that he had suffered a lot due to his involvement in the case. He was determined to expose the  

nexus. He said that he needed the help of NDTV to do a sting operation in order to bring out the  

complicity between the prosecution and the defence into open. She discussed the plan mooted by  

Kulkarni  with  her  superiors  in  the  organisation  and got  their  permission  to  carry out  the  sting  

operation. In this regard she 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 Kulkarni  

with a button camera and a recording device and also gave her a cell phone to communicate with her  

in any emergency. Then Kulkarni and Deepak Verma went to meet IU Khan. Deepak Verma carried  

another concealed camera and a recording device in his bag. Deepak Verma was sent along with  

Kulkarni to ensure that he did not in any manner tamper with the hidden camera. Before sending  

them off she switched on Kulkarni’s camera. After meeting with IU Khan both came back and she  

then switched off Kulkarni’s camera. She stated in the affidavit that after copying its contents onto a  

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 called 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, 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 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 parked. 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 a 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 NDTV it was carefully examined

and evaluated and the editorial team at NDTV 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  all  successive  stages  she  was  

personally  present  to  ensure  the  factual  accuracy  of  the  edited  version  incorporated  in  the  

programme.  But  once the programme was made Kulkarni  completely changed his  position  and  

strongly opposed the telecast of the programme. He asked her not to telecast the programme saying  

that he and his wife were facing threat to their lives. He would not clearly spell out the nature of the  

threat or its source but simply oppose the telecast. In view of his plea that he and his wife faced  

threat to their lives it was decided to defer the telecast till his examination-in-chief in the court was  

over. She then stated about Kulkarni’s interview (without stating the date on which it was recorded)  

on camera in the NDTV studio in which he spoke about why and how he carried out the stings.  

Coming back to the telecast she said that she met Kulkarni on the dates of his appearance in the trial  

court on May 14, 17 and 29 but was not able to persuade him to agree to the telecast. He was not  

willing to give his consent even on May 29 but then the people at NDTV felt that his stand was quite  

contradictory to the objective avowed by him for carrying out the stings with the help of NDTV; by  

that date his examination-in-chief was over and he was also provided with police protection. Taking  

all those facts and circumstances into account it was decided to go ahead with the telecast regardless  

of Kulkarni’s objections. The programme was, accordingly, telecast on May 30, 2007. In course of  

the telecast the anchor of the show engaged with RK Anand and presented his version too before the  

viewers. IU Khan was similarly tried to be contacted but he was indisposed. In the end the affidavit  

gave a list of all the materials submitted in the court along with it.          

39. In Poonam Agarwal’s affidavit NDTV took the stand that the stings were conceived and  

executed by Kulkarni. Its own role was only that of the facilitator. Kulkarni would choose the date  

and time and venue of the meetings where he would like to do the sting. He would fix up the

meetings not in consultation with Poonam Agarwal but on his own. He would simply tell her about  

the meetings and she would provide him with the wherewithal to do the sting. She would not ask  

him when and how and for what purpose the meeting was fixed even though it may take place at  

such strange places as the VIP lounge of the airport or a car travelling from outside the Delhi High  

Court to South Extension. She would not ask him even about any future meetings or his further  

plans.

Proceeding resumes:

40. On July 25, 2007 when the matter next came up before the Court the affidavit of Poonam  

Agarwal was already submitted before it. On that date the counsel for NDTV took the Court through  

the transcripts of the sting recordings and submitted that the three advocates and the other person  

Lovely, the subjects of the sting, had prima facie interfered with the due administration of criminal  

justice. The Court,  however, deferred any further action in the matter till  it  viewed for itself the  

original  sting recordings.  On that  date it  appointed Mr.  Arvind K. Nigam, Advocate as  amicus  

curiae to assist the court in the matter.

41. On July 31, 2007, one Mr. Vinay Bhasin, Senior Advocate, tried to intervene stating that  

the action of NDTV in telecasting a programme based on sting operations in connection with a  

pending criminal trial itself amounted to interference with the administration of criminal justice. On  

the same day both RK Anand and IU Khan also tried to intervene in the Court proceedings and  

sought to put forward their point of view. The Court, however, declined to hear them, pointing out  

that there was no occasion for it at that stage since no notice was issued to them.

42. On August 7, 2007, the Court on a consideration of all the materials coming before it  

came to the view that prima facie the actions of RK Anand, IU Khan, Bhagwan Sharma and Lovely  

(who was dead by then) were aimed at influencing the testimony of a witness in a manner so as to  

interfere with the due legal process. Their actions thus clearly amounted to criminal contempt of  

court as defined under clause (ii) & (iii) of section 2(c) of the Contempt of Courts Act. The Court  

accordingly passed the following order:

“From your aforesaid acts and conduct as discerned from the CDs and their transcripts, the

affidavit 23rd July, 2007 of Ms. Poonam Agarwal along with its annexures, we are, prima  facie,  satisfied  that  you  Mr.  R.K.  Anand,  Senior  Advocate,  Mr.  I.  U.  Khan,  Senior  Advocate, Mr. Sri Bhagwan, Advocate and Mr. Lovely have wilfully and deliberately tried  to interfere with the due course of judicial proceedings and administration of justice by the  courts.   Prima  facie your  acts  and  conduct  as  aforesaid  was  intended  to  subvert  the  administration of justice in the pending trial and in particular influence the outcome of the  pending judicial proceedings.

“Accordingly, in exercise of the powers under Article 215 of the Constitution of  India, we do hereby direct initiation of proceedings for contempt and issuance of notice to  you, Mr. RK Anand, Senior Advocate, Mr. IU Khan, Senior Advocate, Mr. Shri Bhagwan,  Advocate  and  Mr.  Lovely to  show cause  as  to  why you should  not  be proceeded and  punished for contempt of court as defined under Section 2(c) of the Contempt of Courts  Act and under Article 215 of the Constitution of India.

“You are, therefore, required to file your reply showing cause, if any, against the  action as proposed within four weeks.

“Noticees and contemnors shall be present in Court on the next date of hearing  i.e. 24th September, 2007.

“Registry is directed to supply under mentioned material to the noticees:-  

“(i) Copy of the order dated 7th August, 2007;

“(ii)  Affidavit  of  Ms.  Poonam Agarwal  dated 23rd July,  2007 together  with  annexures  including the four copies of CDs filed along with the affidavit;

“(iii) Copies of the corrected transcripts filed on 6th August, 2007 in terms of the order  dated 31st July, 2007;  

“(iv)  Copies  of  6  CDs,  including one  edited  and five  unedited  containing the  original  footage which were produced on 6th June, 2007.  

“NDTV shall  make available to  the Registry sufficient  number of copies of the  CDs. and transcripts, which the Registry has to supply to the noticees as above.”

43. In response to the notice RK Anand, instead of filing a show cause, first filed a petition  

(on September 5, 2007) asking one of the judges on the Bench, namely, Manmohan Sarin J.  to  

recuse himself from the hearing of the matter. The recusal petition and the review petition arising  

from it were rejected by the High Court by orders dated October 4 and November 29, 2007. We will  

be required to consider the unpleasant business of the recusal petition in greater detail at its proper  

place later in the judgment.

44. While the matter of recusal was still pending a grievance was made before the Court (on  

September 24) that  along with the notice the proceedees were given only five CDs,  though the

number of CDs submitted by NDTV before the Court was six. Counsel for NDTV explained that the  

contents of two of the CDs were copied onto a single CD and hence, the number of CDs furnished to  

the noticees had come down to five. Counsel for the TV channel, however, undertook to provide  

fresh sets of six CDs to each of the noticees.  

45. On September 28, 2007 counsel for IU Khan was granted permission for viewing the six  

CDs submitted by NDTV on the courts record.

46. On October 1, IU Khan filed his affidavit in reply to the notice issued by the High Court  

and RK Anand and Bhagwan Sharma filed their affidavits on October 3, 2007.  

YET ANOTHER TELECAST:

47. In the evening of December 3, 2007 NDTV telecast yet another programme from which it  

appeared that RK Anand and Kulkarni were by no means strangers to each other and the association  

between  the  two  went  back  several  years  in  the  past.  Kulkarni,  under  the  assumed  name  of  

Nishikant, had stayed in RK Anand’s villa in Shimla for some time. There he also had a brush with  

the law and was arrested by the police in Una (HP). He had spent about forty five days in jail. From  

the HP police record it appeared that after coming on the scene in the BMW case he spent some  

time in hotels in Rajasthan and Gurgaon with the Nanda’s paying the bills.  

48. This time RK Anand did not give any legal notice to NDTV seeking apology or claiming  

damages etc. but on the following day (December 4) he made a complaint about the telecast before  

the Court. The Court directed NDTV to produce all the original materials concerning the telecast  

and its transcript. The Court further directed NDTV to file an affidavit giving details in regard to the  

collection of the materials and the making of the programme.

49. In response to the High Court’s direction one Deepak Bajpai, Principal Correspondent  

with NDTV filed an affidavit on its behalf on December 11, 2007. In the affidavit it was stated that  

following a reference to HP in the conversation between RK Anand and Kulkarni in the second sting  

that  took place in  the  car  he went  to  Shimla  and other  places in  Himachal  Pradesh and made  

extensive  investigations  there.  Kulkarni  was  easily  identified  by  the  people  there  through  his  

photograph. On making enquiries he came to learn that in the year 2000 Kulkarni lived in RK

Anand’s villa called ‘Schilthorn’ in Shimla for about a year under the assumed name of Nishikant.  

While staying there he corresponded with an insurance company on behalf of RK Anand, using his  

letter-head, in connection with some insurance claim. Interestingly, there he also obtained a driving  

licence describing himself as Nishikant Anand son of RK Anand. In Shimla and in other places in  

Himachal he also duped a number of traders and businessmen. In Una he was arrested by Police on  

suspicion and he had to spend about 45 days in jail.  

50. In reply to the affidavit filed by Deepak Bajpai, RK Anand filed an affidavit on January  

10,  2008  in  which  he  mostly  tried  to  point  out  the  discrepancies  in  the  sting  recordings  and  

contended that those were inadmissible in evidence.  

PROCEEDINGS BEFORE THE HIGH COURT:

51. After putting the recusal petition and the review application out of its way, the Court took  

up the hearing of the main matter that was held on many dates spread over a period of four months  

from December  4,  2007  to  May 2,  2008.  RK  Anand  appeared  in  person  while  IU Khan  was  

represented through lawyers. Neither RK Anand nor IU Khan (nor for that matter Bhagwan Sharma)  

tendered apology or expressed regret or contrition for their acts. IU Khan simply denied the charge  

of trying to interfere with the due course of judicial proceedings and administration of justice by the  

Courts. He took the stand that the expressions and words he is shown to have uttered in his meeting  

with Kulkarni were misinterpreted and a completely different meaning was given to them to suit the  

story fabricated by the TV channel for its programme.

52. RK Anand on his part took a posture of defiant denial and tried to present himself as one  

who was more sinned against than a sinner. Before coming to his own defence he raised a number of  

issues concerning the role of the mass media in general and, in particular, in reporting about the  

BMW case. He contended that it was NDTV that was guilty of committing contempt of Court as the  

programmes telecast by it on May 30, 2007 (and on subsequent dates) clearly violated the sub-judice  

rule. On this issue, however, he was strangely ambivalent; he would not file an application before  

the Court for initiating contempt proceedings against the TV channel but ‘invite’ the Court to suo  

moto take appropriate action against it. He next submitted that the Court should rein in and control

the mass media in reporting court  matters,  especially live cases pending adjudication before the  

court, arguing that media reports mould public opinion and thereby tend to goad the court to take a  

certain view of the matter that may not necessarily be the correct view. He also urged the Court to  

lay down the law and guidelines in respect of stings or undercover operations by media. After an  

elaborate discussion the High Court rejected all the contentions of the contemnors based on these  

issues. Before us these issues were not raised on behalf of the appellants. But we must observe we  

fail to see how those issues could be raised before the High Court as pleas in defence of a charge of  

criminal contempt for suborning a witness in a criminal trial. In the overall facts and circumstances  

of the case it was perfectly open to the High Court to deal with those issues as well. But it certainly  

did not lie with anyone facing the charge of criminal contempt to plead any alleged wrong doing by  

the TV channel as defence against the charge. If the telecast of the programme concerning a pending  

trial could be viewed as contempt of Court; or if the stings preceding it, in any way, violated the  

rights of the subjects of the stings those would be separate issues to be dealt with separately. In case  

of the former the matter was between the Court and the TV channel and in the latter case it was open  

to the aggrieved person(s) to seek his remedies under the civil and/or criminal law. As a matter of  

fact RK Anand had given a legal notice to NDTV that he did not pursue. But neither the stings nor  

the telecast would absolve the contemnors of the grave charge of suborning a witness in a criminal  

trial. We have, therefore, not the slightest doubt that the High Court was quite right in rejecting the  

contemnors’ contentions based on those so called preliminary issues.

53. The contemnors then raised the issues of the nature of contempt jurisdiction and the onus  

and  the  standard  of  proof  in  a  proceeding  for  criminal  contempt.  They further  questioned  the  

admissibility  of  the  sting  recordings  and  contended  that  those  recordings  were  even  otherwise  

unreliable. In course of hearing RK Anand tried to assail the integrity of the CDs furnished to him  

that were the reproductions from the original of the sting recordings. According to him, there were  

several anomalies and discrepancies in those recordings and (on January 29, 2008) he submitted  

before the Court  that  from the CDs furnished to  him he had got  another  CD of  eight  minutes  

duration  prepared  in  order  to  highlight  the  tampering in  the  original  recording.  He  sought  the

Court’s permission to play his eight minute CD before it. On RK Anand’s request the Court viewed  

the  eight  minute  CD submitted  by him on February 5,  2008.  On February 27,  2008 the Court  

directed  NDTV to  file  an  affidavit  giving  its  response  to  the  CD prepared  by RK Anand.  As  

directed, NDTV filed the affidavit, sworn by one Dinesh Singh, on March 7, 2008. The affidavit  

explained all the objections raised by RK Anand in his eight minute CD. RK Anand then filed a  

petition (Crl. M. 4012/2008) on March 31, 2008 for sending the original CDs for examination by the  

Central Forensic Science Laboratory.

54. Besides this,  RK Anand filed a number of interlocutory applications in course of the  

proceedings. Only three of those are relevant for us having regard to the points raised in the hearing  

of the appeal. Those were: (I) Crl.M. No. 13782 of 2007 filed on December 3, 2007 for summoning  

Poonam Agarwal for cross-examination, (II) Crl.M. No. 4010 of 2008 filed on March 31, 2008 for  

initiating proceeding of perjury against NDTV and Poonam Agarwal for deliberately making false  

statements on affidavits and fabricating evidence and (III) Crl.M. No. 4150 of 2008 filed on April 2,  

2008 asking the Court to direct NDTV to place all the original microchips before it and to furnish  

him copies directly reproduced from those chips. Apart from the above, RK Anand also filed before  

the High Court on March 31, 2008 an application in the nature of written arguments.

55. On conclusion of oral submissions, on April 5, 2008 the Court, in presence of the three  

contemnors and their counsel, viewed all the original materials of the sting operations submitted  

before it by NDTV. In the order passed on that date it recorded the proceeding of the day as under:  

“The under mentioned recordings were played in court today in the presence of noticees,  their counsel and the amicus curiae:

(i) Bag camera chip of conversation with Shri I. U. Khan on   28.4.2007;

(ii) Button camera DVD of conversation with Shri I. U. Khan on 28.4.2007;

(iii) Button camera chip of conversation with Shri R. K. Anand on 6.5.2007;

(iv) Button camera chip of conversation with Shri R. K. Anand on 8.5.2007;

(v) Button Camera Chip of conversation with Sri Bhagwan Sharma; Shri Lovely;

(vi) Telecast of second expose of 3.12.2007 at H.P. stay of Sunil Kulkarni

Mr. Huzefa Ahmedi for noticee Mr. I. U. Khan and Mr. R. K. Anand for himself and Sri  Bhagwan offered their comments on the inferences to be drawn from the video recordings  and the conversations therein.  

Re-notify on 10th April,  2008 at 2.30 p.m. for conclusion of submissions  on behalf of  noticees.”   

56. On the next date April 10, 2008 RK Anand concluded his submission and the counsel for  

IU Khan filed reply to the written submission of  amicus curiae. The matter came up once more  

before the Court on May 2, 2008 when the Court after giving some direction to NDTV and amicus  

curiae, reserved judgment in the case which was finally pronounced on August 21, 2008. The Court  

held  that  the  contempt  jurisdiction  of  a  Court  is  sui  generis.  The provisions  of  CrPC and the  

Evidence Act are not applicable to a proceeding of contempt. In dealing with contempt, the Court  

was entitled to devise its own procedure but it must firmly adhere to the principles of natural justice.  

The  Court  also  found  and  held  that  the  recordings  of  the  stings  on  the  microchips  and  their  

reproduction on the CDs were completely genuine and unimpeachable and hence, those materials  

could not only be taken in evidence but fully relied on in support of the charge.

57. The High Court rejected all the interlocutory applications filed by RK Anand. As to the  

request  to  call  Poonam Agarwal  for  cross-examination  the  Court  observed that  what  transpired  

between RK Anand and Kulkarni in the sting meetings was there on the microchips and the CDs,  

copied from those chips,  for anyone to see and no statement  by Poonam Agarwal in her cross-

examination  would  alter  that  even  slightly.  The  Court  further  recorded  its  finding  that  the  

microchips were not subjected to any tampering etc. and hence, rejected the petition for proceeding  

against NDTV for perjury. In regard to the other petitions the Court observed that those were moved  

in  desperation  and  for  exerting  pressure  on  NDTV  and  Poonam  Agarwal.  The  Court  further  

observed that the original chips were in the safe custody of NDTV and there was no need for those  

chips to be deposited in Court. The contents of the microchips were viewed by the proceedees and  

the  CDs  onto  which  the  microchips  were  copied  were  handed  over  to  them.  The  proceedees,  

therefore,  had  no  cause  for  grievance  and  the  submission  to  send  the  microchips  for  forensic  

examination or for directing NDTV to submit the original microchips before the High Court had no

substance or merit.

58. In the end the Court held that the circumstances and the manner in which the meetings  

took place between the proceedees and Kulkarni and the exchanges that took place in those meetings  

as evidenced from the sting recordings fully established that both IU Khan and RK Anand were  

guilty of the charges framed against them. It accordingly convicted them for criminal contempt of  

Court and sentenced them as noticed above.

SOME OF THE ISSUES ARISING IN THE CASE:

59. These  are  broadly  all  the  facts  of  the  case.  We  have  set  out  the  relevant  facts  in  

considerable detail since we do not see this case as simply a matter of culpability, or otherwise, of  

two individuals. Inherent in the facts of the case are a number of issues, some of which go to the  

very root of the administration of justice in the country and need to be addressed by this Court.

The two appeals give rise to the following questions:

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 arise from the facts of the case that need to be  

addressed by us. These are:  

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 was going 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

60. On  these  issues  we  were  addressed  at  length  by  Mr.  Altaf  Ahmed,  learned  Senior  

Advocate appearing for RK Anand and Mr. P. P. Rao, learned Senior Advocate appearing on behalf  

of IU Khan. We also heard Mr. Harish Salve, learned Senior Advocate representing NDTV, which  

though not a party in the appeals was, nevertheless issued notice by us. We also received valuable  

assistance  from  Mr.  Gopal  Subramanium,  Senior  Advocate  and  Mr.  Nageshwar  Rao,  Senior  

advocate, the amici appointed by us having regard to the important issues involved in the case. We  

spent a full day viewing all the sting recordings, the recording of the programmes telecast by NDTV  

on May 30, 2007 and the eight minute CD prepared by RK Anand. Present at the viewing were all  

the counsel and one of the appellants, namely RK Anand.

RK ANAND’S APPEAL  

61. Before adverting to anything else we must deal with the appeals proper. In order to judge  

the charge of criminal contempt against the appellants it needs to be seen what actually transpired  

between Kulkarni and the two appellants in the stings to which they were subjected. And for that we  

shall have to examine the raw sting recordings.

62. Taking the case of RK Anand first we go to the sting done on him on May 6, 2007 when  

Kulkarni met him in the VIP lounge at the domestic terminal of IGI Airport, Delhi. Here, it needs to  

be recalled that as Kulkarni was behind the camera (which was fixed to his shirt front) he is not seen  

in the picture. What one sees and hears are the pictures of whomsoever he is engaged with and their  

voices. The video begins with Kulkarni approaching the guard at the entrance of the airport building  

and asking him about the public address system from where he could contact RK Anand who was  

inside the airport building in the VIP lounge. The following are the extracts from the transcript of  

the sting recording of the meeting that would give an idea how the meeting between the two took  

place and what was said in the meeting.

THE EXCHANGE BETWEEN KULKARNI & RK ANAND:

Kulkarni: Excuse me, apka announcement kaha hai?

Someone: Kis liye?

Kulkarni: Mr. RK Anand, yaha hai, ex Member of Parliament, mujhe unse milna hai, urgent….I   

think woh udhar hi hai.

KULKARNI ON THE PUBLIC TELEPHONE AT THE AIRPORT

Kulkarni: Hello Haanji boss, bahar hi hoo…gate No.1 gate No.2 ke beech mein, Ha, VIP gate  

ok…I’ll be there.  Ya, ya, ya, ya, ok.

KULKARNI HANGS UP AND PROCEEDS TOWARDS THE VIP GATE

Kulkarni: Poonam, keep your mobile on! Ok! and keep it with your recorder! Ok!  Ok! I’m leaving   

for the VIP gate…he is waiting there..ok…ok

Anand: Kya badmashi karte rehte ho?

Kulkarni: Main aapko wohi time bata raha tha ke mujhe sab kuch pata tha ye..isi liye hamne…but  

lekin nobody believed me…(Anand laughing)

Anand: Acha Tu mere saath badmashi karni band kar de…tu banda ban ja.

Kulkarni: Aap banaoge to banoonga.

Anand: Agar nahi banega to main maroonga (Kulkarni: cuts in)

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Kulkarni: Ab kya strategy banani hai batao.

Kulkarni: Maine message bheja tha khan saab ke pass…aapko shayad mila hoga

Anand: Haan…mil gaya tha

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Anand: Main kya bola? (Laughs)

Anand: Acha let me come back tomorrow, meri flight ayegi koi saare nau (9.30) baje..tum   

ghar mein xxxx.

Kulkarni: Han that will be better because I dont want…..

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Anand: Haan ab….ab mujhe batao…

Anand: Ab batao mereko……

Kulkarni: Mujhe bola dhai crore doonga…aap batao mereko.

Anand: Hain?

Kulkarni: Dhai crore…..

Anand: Tu paanch crore maang le…..

Kulkarni: Main paanch crore maang leta hoo…

Anand: Tere ko cross examine maine zaroor karna hai!

Kulkarni: Aur doosri baat….cross examine aap karoge mereko? (Anand laughs)

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Kulkarni: Jab bhi mereko zaroorat padegi main ghar pe aa jaunga, mujhe pata hai.

Anand: Chalo let me come back tomorrow evening, you come and meet me in the night…in   

the farm….don’t meet me outside.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Kulkarni: Nahi aaj jaroori tha isliye main mila…nahi to main..I avoid it..

Anand: Nahi farm pe milna.

Kulkarni: Aur doosri baat…yeh inhe bhi jante ho…yeh dekho its Commando…ok

Anand: Ya, Tomorrow evening, bye!

The second sting took place on May 8, 2007 in the car. Extracts from the transcript of that meeting  

are as follows.  

Kulkarni: kyon office mein bhi aur ghar pe bhi mat millo…yeh sare log mere peeche...

Anand: yahan kyon milte ho phir?

Kulkarni: Yahan koi nahi dekhta...acha abhi kya karna hai batao.

xxxxxxxxxxxxxxxxxxxxxxxxxxxx

Anand: Ab dekho tum xxxx tum xx .paise  xxxxx

Kulkarni: Main….yeh sab main kaise boloonga…ab yeh sab drama yeh kar rahe hai na…drama  

kar rehe hai poora hi…ab dekho jo hua so hua….

Anand: Baat  to tumhare samne karonga, peeche to karongaa nahi….

Kulkarni: Vo to mainbhi janta hoo

Anand: Samne baat hogi tumhare

Kulkarni: Kal kya mere ko nikaal rahe ho kya…311 se?

Anand: Nikal doo?

Kulkarni: Nahi..nahi mat nikalna xxx

Anand: Nahi Nikalta

Kulkarni: Nahi Nahi mat nikalna..withdraw karva lo na aap…jab main aapke saath hoo, jo   

marzi karne ke liye tyaar hoo.  to yeh kaye ke liye High Court main laga diya aapne..aur mere   

upar aapko itna bhi bharosa nahi hai kya…..theek hai gussa ho jata hoo main xxxx..

Anand: Nahi Nahi

Kulkarni: Lekin aana hai…..depose karna hai.

Anand: Ab usse kya baat karni hai…batao, Reasonable baat karo.

Kulkarni: Aap decide karo.

Anand: Tum decide karo.

Anand: Woh to you decide.”

Kulkarni: 30,000 crores…CBI ne 2300 crores..big investment…84 crores

Anand: Vo choddo

Kulkarni: Kyon..kyon Chodo..kyon chodo?..  Aap..main aapka beta hoo. bolo.  

Anand: Tumhara bheja kharaab ho gaya hai…(Laughs)

Kulkarni: Kharaab ho gaya hai na abhi….

Anand: Haa bheja kharaab ho raha hai.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Anand: So you have not taken the summon?

Kulkarni: Na…not al all.   Jab tak aap nahin bataoge, Khan sahib nahi  bataenge tab main   

summon kaise lu.

Anand: How did Ramesh Gupta inform him that you have taken the summons?

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Kulkarni: Ab maine kya karna hai..maine summon liya nahi hai..aap mere upar to bharosa kar   

sakte ho na?

Anand: Poora, mujhe to poora…

Kulkarni: Poora vishwas hai na?  To maine summon nahi liya ha…

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Anand: I’m out of touch…I’m not in trial, I’m in High Court so  I don’t know…anyhow..what   

statement you are supposed to make..we will decide about it…First of all, meet the bugger and   

talk to him.  And be reasonable.  Don’t be unreasonable like what you told me that day.  Don’t   

be silly!     

Kulkarni: Kitna Mango?

Anand: Chodo na…bat samjha kar yaar…aadmi ko zindagi main aur bhi bade kaam aate   

hai…aise nahi karte..that fellow is sick you know..that man..jo kya naam hai uska xxx  

Kulkarni: Hmm.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Anand: Talk to me around seven forty five.

Kulkarni: Ok

Anand: Ok

Kulkarni: Sir..

Anand: Then we’ll decide about it.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Kulkarni: Hmm. Paune aath (8) baje I’ll get back to you..agar paune aath (8) baje aap bulate   

ho to main aaju-baaju ke area main hi rehta hoo..Kanth ko bula lena bas..meri ek dil ki bhadaas   

niklane do bas…do minute.  

Anand: Aaju baju mein hi rehna, main tumhe bula lunga.

Kulkarni: Isme bachana hai na usko Sanjeev ko?

Anand: xx Kabhi kisika bura mat kiya karo. Panga lene ka kaya faydaa.!

Kulkarni: Theek hai.

Kulkarni: Nahi..lekin kaise kya karna hai vo aapne aur khan sahab ne decided karna hai..after   

all it was merely an accidentxxx.

Anand:         And he remained in jail for 8-9 months…yaar.  

Kulkarni: To main..to mere ko bhool jayoge aap..pentalis (45) din.

Anand: Kaise.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Anand: You were enjoying..

Kulkarni: Kya,…

Anand: You were enjoying. Not that you were in a problem..uski to dikkat hai bechare kixxxx

Kulkarni: Nahi Nahi..I’m also not interested. Aisi baat nahi hai..  

Anand: Kabhi  kisi  ka  bura  nahi  kara  karo..aise  bhala  karne  se  hi  aadmi  to  acha  rehta   

hai..kisi ko jhoota nahi phasana chahiye..nikal dena chahiye…

Kulkarni:     Chalo theek hai. Aap ke kehne par main kuch bhi karne ke liye tayaar hoo..aur inki   

saari galat information hai.

Anand: Aage jake bhi bhagwan ko jawaab dena hota hai yaar..aage bhi jawaab…. kya fayda  

karne..xxx

Anand:      Chhuraane se phir bhi ache rehta hai..phasane seto (abuses) bura hi kaam hota hai…

main to kisi main interested hi nahi hoo..kisiko phasane main…   

Kulkarni:      nahi vo to mujhe bhi pata hai…

Anand:     In logo ne Narsimha Rao ko phasaya..acha thodi hua tah vo..vaapis chhuraya tha   

humne..kya fayda hua..

Kulkarni: Main aajo baajo main paune aath baje..aap mere ko bula lena

Anand: Give me a call at seven forty five..

Kulkarni: Ji..

Anand: On my office number.

XXXXXXXXXXXXXXXXXXXXXXXXXX

Kulkarni: Phir mere khayaal se 311 udega nahi na, blood sample ka udega?

Anand: Hain?

Anand: Kyon udaye..jab tumhare pass paise bante hai to main kyon udayo?

Kulkarni: Jab main aapke saath hoo..

Anand: Ha..to phir kya hai..

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Kulkarni:     Koi neta log tha..acha..seven forty five..

Anand: Pakki gal..

63. It is quite possible that Kulkarni had somehow found out RK Anand’s programme and  

RK Anand did not know that he was coming to meet him at the airport but there can be no doubt  

that he allowed him to come to him and the meeting took place with his consent. From his opening  

remark and the general tenor of the conversation it is evident that they were quite free and familiar  

with  each other.  (We may recall  here  their  seven years  old  Shimla  connection!).  Now,  when  

Kulkarni asks him what strategy was to be made it could mean only one thing. He did not give any  

direct reply to that question but he did not ask Kulkarni to shut up either. When Kulkarni said that  

he was offered  two and half crores he indeed mockingly suggested that he should ask for five  

crores but here also what was sought to be ridiculed was the sum quoted and not the prospects for  

negotiation. As a matter of fact for further negotiation door was kept wide open with the express  

invitation for further meeting albeit at a discreet place and time.   

64. The meeting at the airport might or might not have been scheduled but there can be no  

doubt that the meeting in the car was fixed from before. Otherwise, it was impossible for Kulkarni  

to enter the car having equipped himself with a hidden camera and the recording device from  

before in anticipation that he would get the chance to get into the car outside Delhi High Court. The  

purpose of the meeting is manifest by the conversation between the two. It is also evident that  

before parting another meeting was fixed in the evening for which Kulkarni was to call up RK  

Anand at his office. As arranged, Kulkarni did telephone at RK Anand’s office but the meeting did  

not take place there or with RK Anand. The meeting took place at the South Extension Market

where first Bhagwan Sharma and then Lovely came to meet Kulkarni. Both claimed that they were  

sent to meet him by RK Anand. There is a very long transcript of the sting on the third meeting,  

first between Kulkarni and Bhagwan Sharma (who stayed with Kulkarni till Lovely came there)  

and then between Kulkarni and Lovely. The recording of the third sting further makes it evident  

that Kulkarni was trying (at least for the purpose of the sting) to sell himself off in favour of the  

accused Sanjeev Nanda for a price that he left to be fixed by RK Anand. However we see no reason  

to advert to the third sting, first because RK Anand was not personally present in the meeting and  

secondly and more importantly because the charge is fully established against him on the basis of  

the two stings done on him personally. This is of course, provided the recordings of the two stings  

truly and faithfully represent what actually transpired in those two meetings.

Submissions on behalf of RK Anand:

65. Mr. Altaf Ahmed, learned senior counsel appearing for RK Anand, submitted that the  

High Court founded the appellant’s conviction under the Contempt of Courts Act on facts that were  

electronically recorded, even without having the authenticity of the recording properly proved. The  

High Court  simply assumed the sting recordings to be correct and proceeded to pronounce the  

appellant guilty of criminal contempt on that basis. Hence, the genuineness and accuracy of what  

appeared in the sting recordings always remained questionable.  Mr.  Ahmed submitted  that  the  

judgment  and  order  coming  under  appeal  was  quite  untenable  for  the  simple  reason  that  the  

integrity of its factual foundation was never free from doubt. Learned counsel further submitted  

that the procedure followed by the High Court was not fair and the appellant was denied a fair trial.  

He also submitted that the High Court arrived at its conclusions without taking into consideration  

the appellant’s defence and that was yet another reason for setting aside the impugned judgment  

and order.

Nature of Contempt Proceeding:

66. Mr. Ahmed submitted that under the Contempt of Courts Act the High Court exercised  

extra-ordinary  jurisdiction.  A  proceeding  under  the  Act  was  quasi  criminal  in  nature  and  it  

demanded the same standard of proof as required in a criminal trial to hold a person guilty of

criminal  contempt.  In support  of  the  proposition  he  cited  two decisions  of  this  Court,  one  in  

Mritunjoy Das Vs. Sayed Hasibur Rahman,  (2001) 3 SCC 739 and the other in  Chotu Ram Vs.   

Urvashi Gulati  and ors.,  (2001) 7 SCC 530. In both the decisions the Court observed that the  

common  English  phrase,  “he  who  asserts  must  prove”  was  equally  applicable  to  contempt  

proceedings. In both the decisions the Court cited a passage from a decision by Lord Denning in Re  

Bramblevale Ltd., (ALL ER pp. 1063H and 1064B) on the nature and standard of evidence required  

in a proceeding of contempt.

“A contempt of court is an offence of a criminal character. A man may be sent to prison for  it.  It must be satisfactorily proved. To use the time-honoured phrase, it  must be proved  beyond reasonable doubt. It is not proved by showing that, when the man was asked about  it,  he  told  lies.  There  must  be  some further  evidence  to  incriminate  him.  Once  some  evidence is given, then his lies can be thrown into the scale against him. But there must be  some other evidence. Where there are two equally consistent possibilities open to the court,  it is not right to hold that the offence is proved beyond reasonable doubt.”   

67. Seeking to buttress the point learned Counsel also referred to some more decisions of  

this Court in: (i) Anil Rattan Sarkar vs. Hirak Ghosh, (2002) 4 SCC 21 (ii) Bijay Kumar Mahanty  

vs. Jadu @ Ram Chandra Sahoo, (2003) 1 SCC 644 (iii)  J. R. Parashar, Advocate vs. Prashant   

Bhushan, Advocate (2001) 6 SCC 735 and (iv) S. Abdul Karim vs. NK Prakash and others (1976) 1  

SCC 975

68. There cannot be any disagreement with the proposition advanced by Mr. Ahmed but as  

noted above if the sting recordings are true and correct no more evidence is required to see that RK  

Anand was trying to suborn a witness, that is, a particularly vile way of interfering with due course  

of a judicial proceeding especially if indulged in by a lawyer of long standing.

Admissibility of electronically recorded & stored materials in evidence:

69. This leads us to consider the main thrust of Mr. Ahmed’s submissions in regard to the  

integrity, authenticity, and reliability of the electronic materials on the basis of which the appellants  

were held guilty of committing contempt of Court. Learned counsel submitted that the way the High  

Court proceeded in the matter it was impossible to say with any certainty that the microchips that  

finally came before it for viewing were the same microchips that were used in the spy cameras for  

the stings or those were not in any way manipulated or interfered with before production in court.

He further submitted that the admissibility in evidence of electronic recordings or Electronically  

Stored  Information  (ESI)  was  subject  to  stringent  conditions  but  the  High  Court  completely  

disregarded those conditions and freely used the sting recordings as the basis for the appellants’  

conviction.   

70. In  support  of  the  submissions  Mr.  Ahmed  submitted  a  voluminous  compilation  of  

decisions (of this Court and of some foreign courts) and some technical literature and articles on  

ESI. We propose to take note of only those decisions/articles that Mr. Ahmed specifically referred  

to us and that have some relevance to the case in hand.

71. Two of the decisions of this Court referred by Mr. Ahmed, one in S A Khan vs. Bhajan  

Lal, (1993) 3 SCC 151 and the other in Quamarul Islam vs. S. K. Kanta, (1973) 1 SCC 471 relate to  

newspaper reports. In these two decisions it was held that news paper report is hearsay secondary  

evidence which cannot be relied on unless proved by evidence aliunde. Even absence of denial of  

statement appearing in newspaper by its maker would not absolve the obligation of the applicant of  

proving the statement. These two decisions have evidently no relevance to the case before us.   

72. In regard to the admissibility in evidence of tape recorded statements Mr. Ahmed cited a  

number of decisions of this Court in (i) N. Shri Rama Reddy vs. V. Giri (1970) 2 SCC 340 (ii) R. M.  

Malkani vs. State of Maharashtra (1973) 1 SCC 471 (iii) Mahabir Prasad Verma vs. Dr. Surinder   

Kaur (1982) 2 SCC 258 and (iv)  Ram Singh vs. Col. Ram Singh (1985) Suppl SCC 611. He also  

referred to two foreign decisions on the point, one in (i) R vs. Stevenson, 1971 (1) All ER 678, and  

the other of the Supreme Court, Appellate Division of the State of New York in The People of State   

of New York vs. Francis Bell (taken down from the internet). We need here refer to the last among  

the decisions of this Court and the English decisions in  R vs. Stevenson.  In  Ram Singh,  a case  

arising from an election trial the Court examined the question of admissibility of tape recorded  

conversations under the relevant provisions of the Indian Evidence Act. The Court lay down that a  

tape recorded statement would be admissible in evidence subject to the following conditions

“Thus, so far as this Court is concerned the conditions for admissibility of a tape- recorded statement may be stated as follows:  

(1) The voice of the speaker must be duly identified by the maker of the record or

by other who recognise his voice. In other words, it  manifestly follows as a  logical  corollary  that  in  the  first  condition  for  the  admissibility  of  such  a  statement is  to identify the voice of the speaker. Where the voice has been  denied by the maker it will require very strict proof to determine whether or not  it was really the voice of the speaker.

(2) The accuracy of the tape-recorded statement has to be proved by the maker of  the record by satisfactory evidence-direct or circumstantial.

(3) Every possibility of  tampering with  or  erasure  of  a  part  of  a  tape-recorded  statement must be ruled out otherwise it may render the said statement out of  context and, therefore, inadmissible.  

(4) The statement must be relevant according to the rules of Evidence Act.  (5) The recorded cassette must be carefully sealed and kept in a safe or official  

custody.  (6) The voice of the speaker should be clearly audible and not lost or distorted by  

other sounds or disturbances.”

73. In  R vs. Stevenson  too the Court was dealing with a tape recorded conversation in a  

criminal case. In regard to the admissibility of the tape recorded conversation the court observed as  

follows:

“Just as in the case of photographs in a criminal trial the original un-retouched negatives  have  to  be  retained  in  strict  custody so  in  my views  should  original  tape  recordings.  However one looks at it, whether, as counsel for the Crown argues, all the prosecution have  to  do  on  this  issue  is  to  establish  a  prima  facie  case,  or  whether,  as  counsel  for  the  defendant Stevenson in particular, and counsel for the defendant Hulse joining with him,  argues for the defence, the burden of establishing an original document is a criminal burden  of proof beyond reasonable doubt, in the circumstances of this case it seems to me that the  prosecution have failed to establish this particular type of evidence.  Once the original is   impugned and sufficient details as to certain peculiarities in the proffered evidence have  been examined in court, and once the situation is reached that it is likely that the proffered  evidence is not the original-is not the primary and the best evidence -that seems to me to   create a situation in which, whether on reasonable doubt or whether on a prima facie   basis, the judge is left with no alternative but to reject the evidence. In this case on the facts  as I have heard them such doubt does arise. That means that no one can hear this evidence  and it is inadmissible.”

(emphasis added)

74. Mr. Ahmed also referred to another decision by a US Court on the admissibility of video  

tapes. This is by the Court of Appeal of the State of North Carolina in State of North Carolina vs.   

Michael Odell Sibley (downloaded from the internet). In this decision there is a reference to an  

earlier decision of the same court in State vs. Cannon. 92 N C App. 246 etc. in which the conditions  

for admissibility of video tape in evidence were laid down as under:

“The prerequisite that the offer or lay a proper foundation for the videotape can be met by:  (1) testimony that the motion picture or videotape fairly and accurately illustrates the events  filmed (illustrative purpose); (2) “proper testimony concerning the checking and operation  of the video camera and the chain of evidence concerning the videotape…”; (3) testimony

that “the photographs introduced at trial were the same as those [ the witness] had inspected  immediately after processing,” (substantive purposes); or (4) “testimony that the videotape  had  not  been  edited,  and  that  the  picture  fairly  and  accurately  recorded  the  actual  appearance of the area ‘photographed.”

75. On the different issues germane to the admissibility of ESI Mr. Ahmed also referred to a  

decision of the District Court of Maryland, United State in Civil Action No. PWG-06-1893, Jack R.  

Lorraine  and  Beverly  Mack  vs.  Markel  American  Insurance  Company (downloaded  from  the  

internet).  Mr.  Ahmed  also  cited  before  us  an  article  captioned  ‘The  Sedona  Conference  ®  

Commentary on ESI Evidence & Admissibility’:  A Project  of  The Sedona Conference Working  

Group on Electronic Document Retention & Production (WGI)®, published in Sedona Conference  

Journal, Fall 2008. The article deals extensively with the different questions relating to admissibility  

in evidence of ESI and one of its  basic premises is that the mere fact that the information was  

created and stored within a computer system would not make that information reliable and authentic.

76. He also invited our attention to an article appearing in The Indian Police Journal, July-

September 2004 issue under the caption “Detection Technique of Video Tape Alteration on the   

Basis of Sound Track Analysis”. From this article Mr. Ahmed read out the following passages:

“The  acceptance  of  recorded  evidence  in  the  court  of  law  depends  solely  on  the  establishment of its integrity. In other words, the recorded evidence should be free from  intentional  alteration.  Generally, examination  of  recorded  evidence  for  establishing the  integrity/authenticity is  performed to  find out  whether  it  is  a  one-time recording or  an  edited version or copy of the original.”

And further:

“Alteration  on  an  audio  recording  can  be  of  Addition,  Deletion,  Obscuration,  Transformation and Synthesis. In video recordings the alteration may be with the intention  to change either on the audio track or on the video track. In both the ways there is always  disturbance on both the track. Alterations in a video track are usually made by adding or  removing some frames, by rearranging few frames, by distorting certain frames and lastly  by introducing artificially generated frames. Alteration on a video recording”  

77. In light of the decisions and articles cited above Mr Ahmed contended that the High  

Court freely used the copies of the sting recordings and the transcripts of those recordings made and  

supplied by NDTV without caring to first establish the authenticity of the sting recordings. Learned  

counsel submitted that the use of the CDs of the sting recordings and their transcripts by the High  

Court was in complete violation of the conditions laid down by this Court in Ram Singh.

78. Learned counsel pointed out that at the threshold of the proceeding, started suo moto, the  

High Court, instead of taking the microchips used for the sting operations in its custody directed  

NDTV ‘to preserve the original material including the CDs/Video’ pertaining to the sting operations  

and to submit  to  the Court  copies  and transcripts  made from those  chips.  Thus the  microchips  

remained all along with NDTV, allowing it all the time and opportunity to make any alterations and  

changes in the sting recordings (even assuming there were such recording in the first place!) to suit  

its purpose. The petition filed by RK Anand for directing NDTV to submit the original microchips  

before the Court and to give him copies made in Court directly from those chips remained lying on  

the record unattended till it was rejected by the final judgment and order passed in the case. Another  

petition requesting to send the microchips for forensic examination also met with the same fate.   

79. Mr.  Ahmed further  submitted  that  the procedure followed by the High Court  was  so  

flawed that even the number of chips used for the different sting operations remained indeterminate.  

The trial court order dated June 1, 2007 referred to three chips produced on behalf of NDTV. The  

written statement of Poonam Agarwal made before the High Court on June 6, 2007 mentioned four  

chips and finally their number became five in her affidavit dated October 1, 2007.

80. He further submitted that the audio and the video recording on the basis of which the  

NDTV telecast was based and that was produced before the High Court was done by Kulkarni and it  

was he who was the maker of those materials. The Court never got Kulkarni brought before it either  

for the formal proof of the electronic materials  or for cross-examination by the contemnors. The  

finding of the High Court was thus based on materials of which neither the authenticity was proved  

nor the veracity of which was tested by cross-examination. He further submitted that the affidavit of  

the  NDTV  reporter  (Poonam  Agarwal)  doesn’t  cure  this  basic  flaw  in  the  proceedings.  The  

recordings were not done by the TV channel’s reporter: her participation in the process was only to  

the extent that she ‘wired’ Kulkarni and received from him the recorded materials. What she received  

from Kulkarni was also not identified, much less formally proved before the High Court. According  

to Mr. Ahmed, therefore, the finding of the High Court was wholly untenable and fit to be set aside.

SUBMISSIONS CONSIDERED:

81. The legal principles advanced by Mr. Ahmed are unexceptionable but the way he tried to  

apply those principles to the present case appear to us to be completely misplaced.

82. Here, we must make it clear that we are dealing with a proceeding under the Contempt of  

Courts Act. Now, 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 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. (See  In Re Vinay Mishra (1995) 2 SCC 584,  Daroga Singh and Ors. vs.   

B.K. Pandey (2004) 5 SCC 26)

CORRECTNESS OF STING RECORDINGS NEVER DISPUTED OR DOUBTED:  

83. Keeping this in mind when we turn to the facts of this case we find that the correctness of  

the sting recordings was never in doubt or dispute. RK Anand never said that on the given dates and  

time he never met Kulkarni at the airport lounge or in the car and what was shown in the sting  

recordings  was  fabricated  and  false.  He  did  not  say that  though  he  met  Kulkarni  on  the  two  

occasions, they were talking about the weather or the stock market or the latest film hits and the  

utterances put in their mouth were fabricated and doctored. Where then is the question of proof of  

authenticity and integrity of the recordings? It may be recalled that both in the eight o’clock and  

nine  o’clock programmes,  RK Anand was interviewed by the programme anchors  and the live  

exchange was integrated into the programmes. Let us see what his first response to the telecast was  

when the anchor of the eight o’clock programme brought him on the show.

[Following are the extracts from the exchange between the anchor and RK Anand]

LIVE EXCHANGE BETWEEN TV ANCHOR & RK ANAND:

“India 60 Minutes (BMW Special) 8 PM”

Segment 2  

Sonia: We have RK Anand, on line with us. Mr.  RK Anand, you have watched that report, what’s   

your defence?

RK Anand: My defence, what can be the defence you tell me. See, he just came to me and he was   

making a joke that should I make a demand for Rs. 2.5 crores and I said what the hell are you  

talking, you would want any amount you want ten, I meant this jokingly I’d not serious manner.   

I thought what the hell you want and I never invited him I was going out he must have come  

there to meet me and I don’t know what kind of story if being made my NDTV on this channel.  

xxxxxxxxxxxxxxxxxxx

Sonia: But  Mr.  Anand  if  you  have  a  witness  who  has  come  up,  you  have  a  witness  of  the   

prosecution who has come up to you he has claimed that  he wants this  much money and you  

may’ve laughed it off but you then met him again, you’ve again discussed details of the case, surely   

that is not appropriate behaviour for a defence lawyer with a prosecution witness.

RK Anand: See, did I ask him to sit in the car? Did I ask him to come to my office? Did I ever   

give him a call to come to me? We never called. I think it’s a trap being laid by the NDTV people   

and sending the Kulkarni to me. It’s nothing that we have done anything.  

xxxxxxxxxxxxxxxxxxxxx

Sonia: But Mr Anand, let me come back to the central point once again why should a defence   

lawyer and a prosecution witness be meeting and discussing the case even if it’s at the behest of the   

witness, surely as a senior defence lawyer you should’ve thrown him out and not entertained this   

conversation?

RK Anand: Just listen to me now; somebody comes up and talks to you, what do you do, you  

throw him out?

xxxxxxxxxxxxxxxxxxxxxxxxxx

Sonia: But you met him again in your car?

RK Anand: HE was saying 2.5 and I said make a demand for 5. I was making a joke of him.   

Could you not understand the language in which I said it? I was laughing at that time. Listen to  

me, he is a blackmailer, he is trying to blackmail at your instance.  

xxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Sonia: Mr Anand, if you were joking the questions that we are raising as we’ve said many times,   

we have no evidence that money changed hands or didn’t change hands, what we are showing you   

is what was caught on camera. Money being discussed whether it was jokingly or not jokingly has   

to be investigated and two meetings between you and the key prosecution witness, that seems to be   

what is currently on camera, what actually happened has to be investigated. But how do you justify   

these two meetings?

RK Anand: You are tying again to ask questions after questions. I am saying that you know  

when he said about 2.5 crores, I laughed at him and said bloody you are joking. I was smiling at   

him; he was making a fool of himself.  

xxxxxxxxxxxxxxxxxxxxxxxxxxxx

Next is his response in course of the second telecast immediately following the first one:

[Following are the extracts from the exchange between the anchor and RK Anand]  

30th May – 9 PM BMW Special

Barkha Dutt: Mr RK Anand if you can hear me, by now you have watched over two times on NDTV.   

The camera doesn’t lie sir, u were meeting the prosecution’s witness not once but twice, sir, how  

was this appropriate, how can you defend this sir?

Anand: Barkha, we should talk in the right perspective. One must understand that this witness is a   

blackmailer, we have been fighting in the High Court even today that this witness should not be   

examined because he has been blackmailing us for the last so many years and when I was going  

out of Delhi, he appeared suddenly at the airport, and starts talking to me and say should I make   

it 2.5 crores. I laughed at him and what the hell are you talking, u demand 5 crores, I’ll cross-

examine you. This is my first reaction to that one.

Barkha: But Mr Anand if he’s a blackmailer, why did you meet him a second time in your own car  

a second time outside the Delhi High Court, if he’s a blackmailer?

Anand: I have not met him in my car I’m telling you, this is not correct.  

Barkha: Did u meet him a second time?

Anand: No I did not meet him  

Barkha: Sir our investigation reveals that you met him at the Delhi airport and then again a second   

time conversation between you and him takes place inside a car, it may not have been your car.   

There are two separate meetings for sure sir.  

Anand: There is no second meeting, I’ve never met him. I only met him once and that he came. I   

was going out of Delhi, and somebody comes and talks to me and asks for 2.5 crores and I  

laughed at him that what the hell are u talking. U want 2.5 crores and just see what I’ve said.   

I’ll cross-examine you. He said will you cross-examine me, I said yes I’ll cross-examine you.   

And then we go to the HC and tell HC that he is a blackmailer and we will not examine him.  

xxxxxxxxxxxxxxxxxxxxxxxxx  

Barkha: Anand, when Sunil Kulkarni met u at the airport, how correct is it for the defence lawyer   

to be toughing (sic. laughing) when Sunil Kulkarni raises the question of Rs 2.5 crores. In response   

u laugh and say for that money I will cross-examine you. Even as a joke is it appropriate?  

Anand: It is not a joke I’m saying.If somebody comes before your vision suddenly when u are  

going out of Delhi, and say I will demand 2.5 crores, I say what 2.5 crores, make a demand of 5   

crores I will cross examine you in the court of law

xxxxxxxxxxxxxxxxxxxxxx.  

Barkha: U we (sic. have) flatly denied meeting Sunil Kulkarni, is that correct?

Anand: I’ve not met him a second time.

xxxxxxxxxxxxxxxxxxxxx

Barkha: u think its appropriate for you to asking the prosecution witness to come and met you at  

your house sir?

Anand: why what is the difficulty in meeting anyone, I don’t understand?

Barkha: So according to u RK Anand…..

Anand:…..so long u do not influence them…

xxxxxxxxxxxxxxxxxxxxxxxxxxxx

84. As may be seen from the above, the first response of RK Anand is to try to explain away  

(quite unconvincingly to anyone who might have viewed the recorded programme!) what he said  

when Kulkarni mentioned the amount of rupees 2.5 crores. He admitted that Kulkarni 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 Kulkarni for the second time in the car simply stating that he didn’t ask Kulkarni  

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 Kulkarni at the airport lounge, RK  

Anand completely denied meeting him in the car or anywhere else for the second time. However, as  

we shall see presently the denial was quite false.

85. We have gone through the transcripts of the exchange between the two anchors and RK  

Anand a number of times and we have also viewed the programme recorded on CDs. To us, RK  

Anand, in  his interactions with the programme anchors,  appeared to be quite stunned at  being  

caught on the camera in the wrong act, rather than outraged at any false accusations.   

86. It is noted above that immediately after the telecast RK Anand sent a legal notice to  

NDTV threatening legal actions against them and demanding a huge sum as compensation. NDTV  

gave its replay to the legal notice and thereafter RK Anand didn’t pursue the matter any further.

Meeting with Kulkarni in car admitted:

87. RK Anand filed his reply affidavit  in response to the notice issued by the Court  on  

October 3, 2007. In paragraph B of the affidavit he denied, “each and every part of alleged tape  

conversation and CDs produced before the Court  in  response to order passed by this  Court  in  

relation to telecast of BMW exposing thereby denying each part of the conversation”. He further  

stated that the whole tape was fabricated, distorted, edited in such a manner to tarnish his image and

to suit and project the TV channel’s story in particular manner.

In paragraph ‘O’ of the affidavit, however, he stated as follows:

“O. That  the  Deponent  was  awfully busy in  Court  on  8.5.2007.  He finished  his  arguments  in  a  bride  burning case at  5.45 p.m.  While  he was sitting in his  car,  Sunil  Kulkarni made entry in the car. The Deponent was unwilling to talk and to allow him to sit  in the car. The opening lines would make it clear that the Deponent never wanted to talk to  Sunil Kulkarni.

“Kulkarni:Kyon office mein, ghar pe bhi mat milo….   Anand: Yahan Kyon milto ho phir.”  

“After reaching office, the deponent had meeting with clients i.e. Sanjeev Nanda and his  father. Lovely had come to meet Mr. Suresh Nanda. All the colleagues of the deponent and  Nanda’s were apprised of development in the car about Sunil Kulkarni. After some time,  the deponent left the office. The deponent was informed that Lovely offered to record the  conversation of Kulkarni so as to trap him. The deponent was informed later that not only  Lovely was successful in recording the demand of Sunil Kulkarni but Shri Bhagwan also  recorded  another  conversation  subsequent  to  that  of  Lovely.  The  said  conversation  is  reproduced below.”

88. This is followed by a transcript of some alleged conversation between Shri Bhagwan and  

Kulkarni.

89. In the above quoted paragraph there is plain and clear admission in regard to the second  

meeting taking place in the car between RK Anand and Kulkarni 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 Kulkarni in the car.  

As to the later part of the paragraph regarding the alleged sting on Sunil Kulkarni by Shri Bhagwan,  

we don’t have the slightest doubt that it was an afterthought and concoction. Had there been such a  

sting recording RK Anand was duty bound to inform the High Court about it when the Criminal  

Revision against the trial court order summoning Kulkarni as court witness was heard on several  

dates in May 2007 before the telecast of the programme by NDTV. He was equally duty bound to  

inform the trial court about Kulkarni’s approaches and the sting done on him by Shri Bhagwan  

when Kulkarni was examined before it on May 14, 17 & 29.

Referring to sting recordings to show innocence:

90. Further, interestingly, though calling the sting recordings fabricated, manufactured, and

distorted, he also relies on the very same sting recordings to make out some point or the other in his  

defence. For example, in paragraph S of the affidavit it is stated as follows:

“S. That in fact, this alleged witness Sunil Kulkarni had earlier attempted to meet  the  Respondent  in  his  office.  It  is  a  matter  of  chance  that  Shri  Amod Kanth  the  then  Director  General of Police,  Arunachal Pradesh was present  with the Respondent in  his  office. Sunil Kulkarni was rebuffed, rebuked and was asked to leave Respondent’s office in  the presence of Shri Kanth. Thereafter, Sunil Kulkarni was physically thrown out from the  office of Respondent. Shri Amodh Kanth also rebuked him for his conduct.  

This fact  stands corroborated by the transcript in which it  has been stated by Sunil  Kulkarni as under:-

“Kul: mujhe koi to message nahi mil raha tha. Phir panga yeh  ho raha ki when u told me I don’t want to discuss

(mujhe koi message nahi  mil  raha tha phir panga yeh ho raha ki   when u told me I don’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 by alleging that;

Kul “kal kya mereko nikaal rahe ho kya…311 se.” Anand: Karoon… Kulkarni nahi Kulkarni No, 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 not at the instance of the deponent.”

Further in Paragraph 23  

“23………The below noted conversation would substantiate  the stand of  the  deponent.  

“Kul: kitna mango.  Anand:        chodo…baat samjha kar…aadmi ki zindagi main aur Bhi bade   

kaam aate hain. Aisa nahi karte”  

“The whole conversation about reasonableness was in the form of an admonishment and  advice so that no money is demanded. If the deponent wanted to deal with the witness or  influence  the  witness  or  negotiate  the  terms  of  settlement,  at  that  point  of  time,  the  deponent could have discussed since the demand of 2.5 crores was already allegedly made  by the witness but categorically telling the witness to not to  talk about the money and  reminding of the relations would negate the discussion about the money part in the whole  transcript. The reference to the utterances by Sunil Kulkarni.  

Kul: “isme bachana hain usko sanjeev ko..

   Anand: kabhi kisika bura mat kiya karo.  

 Anand: Kabhi kisi ka bura nahin kara karo..aisa bhala karne se hi Aadmi ko   acha xx….kisii ko jhoota nahi  phasana chahiya….nikal dena chahiye…

Anand: aage jake bhi bhagwan ko jawaab dena hota hain yaar …aage bhi   jawaab…kya fayda karne…xxx…

Anand: Bachane se phir bhi ache rehta hain…phasane me To bura kaam   hota hain…main to kisi main interested hi nahin hoon.”

First of all…”

Further in paragraph 24  

“24. That during the course of conversation and in view of the past  acquaintance  Sunil Kulkarni had with the deponent, number of irrelevant statements were made by the  witness. One such part was in relation to Amodh Kanth. The important conversation which  came to light during the course of the talks was;  

“Uska koi taluk nahin..phir bhi yeh amod kanth ke peeche kyon pada hua K.K.Paul.”

91. He thus accepts the entire recordings in both the stings. For, it is absurd even to suggest  

that the sting recordings are true and correct if those are seen as supporting his explanations (which,

in any event, are quite un-statable!) but are otherwise false and fabricated.

92. In a rearguard action Mr. Altaf Ahmed took us one by one through all the paragraphs in  

different  affidavits  filed  by RK  Anand  in  which  the  sting  recordings  were  described  as  false,  

fabricated, doctored, morphed and manipulated. But those allegations are simply not compatible  

with the other statements in his affidavits as noted above and his responses in regard to the sting  

operations at different times. The denials in the affidavits are nothing more than ornamental pleas.  

93. We also see no substance in the anomalies  and alleged inter  correlation in the sting  

recordings as pointed out on behalf of RK Anand on the basis of the eight minute CD which he got  

prepared from the materials supplied to him by the Court. Along with the other materials we also  

viewed eight minute CD produced by RK Anand. 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 Anand where fully explained by the affidavit filed by  

Dinesh Singh on behalf of NDTV. In the affidavit it was explained  

“80…the alleged discrepancies in the CDs produced before the Court and supplied to the  appellants occurred primarily due to conversion of the recorded material from chips into  CDs, via the intermediary medium of tapes. Shri Singh further explains the gap occurring at  certain points of the recording as due to displacement of the ear-plus connector i.e. the  device uses to attach the button lens and the microphone with the recording device.”

94. Mr. Altaf Ahmed also made the grievance that the High Court failed to consider his  

defence. According to him NDTV had conceived the sting operation as pre-empted measure against  

Shri Anand, who was consulted in his professional capacity in connection with a matter in which  

NDTV in collusion with one Mrs.  Sumana Sain and IRS officer was indulging in massive tax  

evasion. The materials in support of the allegations and in particular RK Anand’s connection with  

the matter are so vague and tenuous that we don’t consider it worthwhile to go into that question.  

95. On a careful consideration of the materials on record we don’t have the slightest doubt  

that the authenticity and integrity of the sting recordings was never disputed or doubted by RK  

Anand. As noted above 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 Anand 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 Anand for  

contempt of court is proper legal and valid calling for no interference.  

IU KHAN’S APPEAL

96. The sting on IU Khan was done on April 28, 2007 in one of the lawyers’ chambers at the  

Patiala  House  court  premises.  The  video  CD  begins  by  showing  Poonam  Agarwal  fixing  the  

recording device and the button camera on Kulkarni’s person sitting inside the car. Then Kulkarni  

and Deepak Verma together enter the Patiala House. They move around in the court premises for a  

long time till just before the lunch recess they are able to find IU Khan sitting in someone else’s  

chamber. The chamber seems to be quite crowded with people all the time coming and going away.  

The first exchange of greetings between IU khan and Kulkarni as he, accompanied with Deepak  

Verma, enters into the chamber is not audible. But then IU Khan is heard describing Kulkarni, in a  

general sort of introduction to those present there, as ‘the prime witness in the BMW case’, ‘star  

witness’ ‘a very public spirited and devoted man’ etc. Kulkarni starts chatting with him about the  

summons issued to him by the court in the BMW case. In the meanwhile someone else comes into  

the chamber. IU Khan greets him loudly and starts talking to him. After a while, on Kulkarni’s  

request, both IU Khan and Kulkarni come out of the chamber and some conversation between the  

two takes place outside the chamber. After the meeting is over Kulkarni and Deepak Verma together  

return back. As the recording devices carried by them are still on the conversation that takes place  

between the two is naturally recorded.  Kulkarni does not allow Deepak Verma to go directly to the  

TV Channel’s vehicle parked outside the Court premises where Poonam Agarwal would be waiting

for their return, saying that they are bound to be followed. Instead, they take an auto-rickshaw and  

go to Pargati Maidan at a short distance from the court. From there they contact Poonam Agarwal on  

mobile phone, who goes there and joins them and de-wires Kulkarni.

Only partial transcript of the sting recording submitted to Court:

97. The recording of this sting operation is more than an hour long. But the transcript of this  

sting recording submitted to the Court by NDTV is confined only to the exchange between IU Khan  

and Kulkarni. In the absence of the full transcript it becomes difficult and cumbersome to see what  

transpired between Kulkarni and Deepak Verma immediately before and after the meeting with their  

subject.  In our view that  part  of the sting recording was also highly relevant and important for  

judging the true import of the exchange that took place between Kulkarni and IU Khan. We are  

surprised that the High Court did not notice this big omission in the transcript of the first sting and  

we record our disapproval of NDTV in withholding the full transcript of the sting recording.

Full transcript/recording of IU Khan’s interview by TV channel on May 31, 2007 not on record:

98. Further, it  is noted above that in the morning of May 31, 2007 one Anusuya Roy, a  

reporter from NDTV had interviewed IU Khan at his residence for his response to the programme  

telecast the previous evening. The interview was telecast live from around 8 to 8.23 in the morning.  

But that was the only time the full interview was shown and later only one statement made by IU  

Khan in course of the interview was incorporated in the programmes telecast in the evening of May  

31. What is more significant, however, is that NDTV did not present before the High Court either  

the full recording of the interview or its transcript and what we find on the High Court record is only  

the statement that was used in the programmes telecast on May 31, 2007 and that runs as follows;  

“IU Khan: I am not denying anything at  all,  I am not denying it  but the interpretation,  meaning  and  inferences  which  were  drawn  are  totally  wrong,  unfounded  and  totally  inconsonance (sic) with the actual record that I am producing before you. Kulkarni also has  used the word ‘Bade Saheb’ means the big officer, high officer of the police headquarter. In  his deposition in the court  also he had used the word Bade Saheb twice and when the  explanation was sought, he explained that by bade saheb I mean senior officer of the police  headquarter, it was unconnected to Mr. R.K. Anand as it has been wrongly, mischievously  and calculatedly projected by you people.”

Confusion in submitting copies of sting recording to High Court:

99. Yet again, there is serious confusion about the production of the recording of the first  

sting on the microchip of the spy camera carried by Kulkarni before the High Court. It is noted  

above that on June 1, 2007 three chips and five CDs were produced before the trial court. Those  

were returned back because in the meanwhile the proceeding was initiated by the High Court. On  

June 2, 2007 six CDs were submitted before the High Court. On that date Poonam Agarwal stated  

before the Registrar that one of the CDs (marked ‘1’) was edited and the other five CDs (marked ‘2’  

to ‘6’) were unedited. She also said that NDTV news channel did not have any other material in  

connection with the sting operation in question. On June 6, 2007 she submitted the transcripts of the  

recordings. In the statement made on that date she said that she had earlier submitted six CDs.  

Those  CDs  were  duplicated  from  four  spy  camera  chips  which  were  recorded  on  different  

occasions.  After copies of the CDs were given to the proceedees as directed in the order dated  

August 7, 2007 issuing show cause notices to them, a grievance was made before the Court that they  

were supplied only five CDs, though the number of CDs submitted before the High Court was six. It  

was then explained on behalf of NDTV that the contents of two CDs were copied onto a single one  

and thus the number of CDs was reduced from six to five. It was of course stated that a fresh set of  

six  CDs each would again be supplied to all  the three proceedees.  The High Court  apparently  

accepted the explanation given by NDTV (High Court order dated 24.9.2007). But the lapse was far  

more serious as would appear from the affidavit dated October 1, 2007 filed by Poonam Agarwal to  

explain the position. In her affidavit she stated that in the first sting (on IU Khan) two spy cameras  

were used, one carried by Kulkarni and the other by Deepak Verma. The recording of the first sting  

was thus  on two microchips one in Kulkarni’s camera and other in  the bag camera of Deepak  

Verma. In the other three stings there was a single spy camera carried by Kulkarni, on each occasion  

having a fresh microchips. Thus for all the four stings a total number of five chips were used. The  

contents of the microchip in Kulkarni’s spy camera used for the first  sting (on IU Khan) were  

copied onto magnetic tape and then to a CD. That microchip was then reformatted for other uses.  

The  other  four  microchips  were  available  in  their  original  and  undisturbed  condition.  For  

preparation of the programme telecast on May 30 the contents of all the five chips, including the

one that was reformatted, were used. However, the five unedited CDs (marked ‘2’ to ‘6’) that were  

submitted before the High Court on June 2, 2007 were copies from the four microchips that had  

remained in their original and undisturbed condition. The sixth CD (marked as ‘1’) was the copy of  

the programme that was telecast. The recording on the microchip in Kulkarni’s camera used for  

the first sting operation, though available on magnetic tape and CD was not submitted to the  

High Court because the microchip itself was reformatted. She further stated that while supplying  

CDs to the noticees in pursuance to the direction of the Court, “a mistake occurred in that, one of  

the CDs given to the noticees (sic) was not taken from the “four chips but the CD which is a copy of  

the formatted chip containing the recording done by Mr. Kulkarni”. She further stated that a CD  

made from the mother tape of the formatted chip was being filed along with the affidavit before the  

High Court.  

100. What follows from the affidavit may be summarised as follows; (I) the conduct of NDTV  

before the High Court in a vary serious proceeding was quite cavalier and causal. (II) 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.  (III)  The  materials  given  to  the  

proceedees along with show cause notice were not exactly the same as submitted before the High  

Court. (IV) The explanation in the form of Poonam Agarwal’s affidavit came on October 1, 2007 on  

the same day when IU Khan filed his reply affidavit in response to the show cause notice.  

101. In those circumstances it was not wrong for IU Khan to state in paragraphs 14 and 15 of  

his memorandum of appeal as under:

“14…. This finding is again against the material on record as the original chip of the button  camera carried by Mr. Kulkarni was formatted by the NDTV in violation of the direction  issued by the Hon’ble Court. This part of the conversation is not available in the transcript  of the bag camera.”

“15. Because the CD of the button camera firstly cannot be relied upon as it was filed after  the reply was filed by the appellant on 1.10.2007…”

Lapses have no effect on RK Anand’s case or even on case of IU Khan:

102. We have recounted  here  some  of  the  noticeable  lapses  committed  by NDTV in  the  

proceedings that were overlooked by the High Court. Having regard to seriousness of the proceeding

we should have wished that it was free from such lapses. But it needs to be made absolutely clear  

that the irregularities pointed out above were in regard to the first sting concerning IU Khan. These  

in no way affect RK Anand or alter his position. The discussions and findings recorded above in  

respect of RK Anand thus remains completely unaffected by the mistakes pointed out here.

103. Further, having regard to the defence taken by IU Khan the aforementioned lapses do not  

have any material affect on his case either. But before proceeding to examine his defence and how  

the High Court dealt with it, it would be necessary to see what conversation is shown to have taken  

place in the sting recordings between Kulkarni and IU Khan.     

THE EXCHANGE BETWEEN KULKARNI & IU KHAN:

Khan: Meet Kulkarni, he is the prime witness in the BMW case. He is our star witness and he is a   

very public spirited and devoted man and incidentally, he was in Delhi on the way/day when this   

unfortunate incident happened. He was going on foot to the Nizamuddin Railway Station.

A BIT FOLLOWS THAT IS HARD TO UNDERSTAND

Kulkarni: Mein barbad ho gaya, sir.

Khan: How?

Kulkarni: This  particular  thing is  only  you and myself  are  aware of.   But  I  am not  aware of   

anything, anything. I don’t want to go again with that particular guy. I lost my mother, I don’t know  

where my father is. I’m just roaming around for 8 years. Ab yeh mujhe kyun bulaya gaya hai?

Khan: Ab court ne (coughs) we dropped you….court ne (unclear)

Kulkarni: No, no you….I think the state told you to drop, right, if I’m not wrong?

Khan: These were the instructions I received from the Headquarters and that’s why I got the SHO   

statement recorded that “on the instruction of the SHO and the ACP, such and such witness has   

been  dropped”.   Then  how can  I  make  a  statement?   My clients  are  Delhi  Police.  Whatever   

instructions they will give, I will act upon it.  I was very keen to examine you.

Kulkarni: Ya, I know that because I still remember, still remember.

Khan: Inhone mera haath dabaya xxxbhi dabaya, khoob dabaya, maine kaha main kya karoo,   

agar individual client ho to samjha bhi lo, department hai.         

Khan: Bade Sahab se mile?  Nahi mile?  Mulakat hi nahi hooyi?

Kulkarni: Ab yeh kya jhanjhat aur?

Khan: Nahi  nahi  kuch  nahi  hoga,  ab  High  Court  mein  unhone  petition  file  kar  di  hai  ki   

Kulkarni ki statement xxxxxxx.

Kulkarni: To woh record karenge nahi na?

Khan: Nahi.

Kulkarni: Pakka?

Khan: Tum mauj karo…hum…humne drop kar diya, court ko kya...who is he is to say that it   

should be recorded.

Someone: Investigation to court kar sakta hai, pur mode of investigation to determine nahi kar   

sakta.

Khan: Exactly, they cannot decide the mode of investigation

SOMEBODY ENTERS THE CHAMBER

Kulkarni: Khan Sahab, ek minute, chale jata hoo, mein sham to ghar pe xxxxaa jaon ga.

Khan: Ha, ha who to ana hi hai, ghar pe nahi xxx

Kulkarni:  Who to abhi dilli mein aya hoo to aya hoo, ek second.

Khan: In Delhi, you’re our guest.

Kulkarni: Inka nahi!

Khan: Na inke nahi.

Khan: Aapka aur hamara personal effort/rapport (not clear) hai

Kulkarni: Who to alag hi baat hai.

Khan: Aur, bhai yaar thanda peeke jana.

Kulkarni: Nahi thanda nahi, bus ek second khali, kyonki wahi xxxx

THEY COME OUT OF THE CHAMBER AND TALK  

Kulkarni: Summons Bombay challa gaya thaa, ab waha se reject ho ke ayaa hua hai.  Ab loon ken   

na loon?  Baad me mere ko raat ko ghar pe (Mr. Khan cuts in)

Khan:  Tum mere ko miloge kab, yeh batao?

Kulkarni: Aap batao kyonki mere ko….SHO se meri baat hui hai. Aap usko…(Mr. Khan cuts in)

Khan: Tum thehre kahan ho?

Kulkarni: Main to thehre hoo out of Delhi.

Khan: Out of Delhi?

Kulkarni: Out of Delhi, Haan.

Khan: Sham ko keh baje aaoge?

Kulkarni: Aaj nahi aaonga…mein kal zarror…shamko. Sunday aaram reheat hai aur….

Khan: Sunday ko kis waqt aaoge?

Kulkarni: Aap batao mere ko.

Khan: Aapko suit kaunsa time karta hai?

Kulkarni: Koi bhi.

Khan: Saat aur aath ke darmiyan?

Kulkarni: Hann, theek hai.

Khan: Kalxxx

Kulkarni: Lekin kisi ko bhi batao mat.

Khan: Nahi ji, sawal hi paida nahi hota yaar.

Kulkarni: Na, na.

Khan:  Aur tumhare liye bahut badiya scotch rakhi hui haixxxx

Kulkarni: Scotch..laughs

Khan:  Bahut badiya xxxx

Kulkarni: Acha baki sab khairyat sahib?

Khan:  Sab khairyat xx.Khuda ka xxx

Kulkarni: Chalo, kal mulaqat hogi

Kulkarni: Ok, main… (Mr.Khan cuts in)

Khan:  Saat aur aath ke darmiyan

Kulkarni: Main, vese meri K K Paul se baat hui hai, lekin maine abhi tak nahin bola hoo I have   

not received summons at all.  Woh mere ko bata dena.

Khan:  Kal tum aajao

Kulkarni: Main…Huh?  Woh hamare dono ki baat hogi,

Khan: Theek hai.

104. After this Kulkarni and Deepak Verma return back. As walking along they naturally talk  

about the sting done by them together.

105. As we shall see presently much depends on what IU Khan meant when he asked Kulkarni  

whether he had met ‘Bade Saheb’.

106. As noted above IU Khan does not deny the conversation that is shown to have taken  

place between him and Kulkarni. In his first response, that is, in the interview given to NDTV on the  

morning following the telecast he said that he did not deny anything at all, he did not deny (the  

utterances) but the inferences sought to be drawn were totally unfounded and wrong. When he said  

‘Bade Saheb’ he meant some high officer in the police headquarter. He also said that was the way  

Kulkarni  used to refer  to  superior  officers  in  the  police headquarter(s)  and that  is  how he had  

referred to them in his deposition before the trial court. When the trial court  asked Kulkarni to  

clarify he explained that Bade Saheb meant a superior officer of the police headquarter. The words  

Bade Saheb, according to IU Khan, did not in any way refer to RK Anand.     

107. And this was broadly his defence before the High Court.

High Court dealing with IU Khan Defence:

108. The High Court did not accept his defence. The High Court held that there was great  

familiarity between IU Khan, Kulkarni and RK Anand. In this regard it observed as follows;

“We have noted above that there are several references to Mr. Khan in the conversations of  Mr.  Kulkarni  with Mr.  Anand.  We cannot  overlook these since  they suggest  a  tacit  arrangement or at least an understanding between Mr. Khan, Mr. Anand and Mr.  Kulkarni”.  

109. In coming to this conclusion, as is evident from the above quoted observation the High  

Court relied a great deal upon the conversations between Kulkarni and RK Anand (vide paragraphs  

196, 197 & 198 of the High Court Judgment).

110. The High Court further held that when IU Khan asked Kulkarni whether he had met

‘Bade Saheb’ he only meant RK Anand. It rejected IU Khan’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 Khan in support of the statement that in course of his deposition before the trial court  

Kulkarni 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, Kulkarni had said that he had met  

K.K. Paul (who was then the Police Commissioner). The passage referred to is as follows;  

“Kulkarni:Main, vese meri K K Paul se baat hui hai, lekin maine abhi tak nahin bola hoo I   have not received summons at all.  Woh mere ko bata dena”.

111. This, according to the High Court, clearly showed that Kulkarni referred to the Police  

Commissioner by his name and not by the expression ‘Bade Saheb’.  High Court further observed  

that for Kulkarni 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 Kulkarni 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 Khan and RK Anand, had easy access to  both of them and used to  

frequently meet them. The High Court then took up Kulkarni’s affidavit that supported IU Khan’s  

plea that by the expression he had meant some senior police officer and not RK Anand and rejected  

it on a number of grounds.

112. After giving the reasons for rejecting the stand of IU Khan the High Court held that Bade  

Saheb was none else then RK Anand observing as follows;  

“190. On the other hand, when we watched the recording of the events of 28th April, 2007  from the button camera,  we noted that  towards the end of the recording, Mr.  Deepak  Verma  asked  Mr.  Kulkarni  about  the  identity  of  Bade  Saheb  and  Mr.  Kulkarni  responded by saying that it is Mr. Anand.  There is no suggestion that this part of the  video recording is doctored or morphed……”.                                                                           (emphasis added)

113. The High Court  further  observed that  as  IU Khan was  fully aware  that  Kulkarni,  a  

prosecution witness was on highly familiar terms with a senior defence lawyer RK Anand, he was  

obliged to inform the prosecution about it and by not doing so he clearly failed in his duty as a  

prosecutor who was expected to be fair not only to his client but also to the Court. His conduct was,  

therefore, plainly unbecoming of a prosecutor.  The High Court then proceeded to consider whether

the conduct of IU Khan amounted to a criminal contempt of court. In this regard the Court refers to  

the conversation between IU Khan and Kulkarni taking place outside the chamber in which a second  

meeting was fixed up for the following evening with IU Khan giving Kulkarni the inducement of  

good scotch whisky.  From the exchange between the two the court  inferred that the extent  of  

familiarity between the two was rather more than normal. IU Khan was aware that Kulkarni was on  

equally, if not more familiar, terms with RK Anand. Coupled with this his failure to inform the  

prosecution or the Court about the connection between Kulkarni and RK Anand had the potential  

and the tendency to interfere or obstruct the natural course of the BMW case and certainly the  

administration of justice, particularly when Mr. Khan himself described Mr. Kulkarni as the prime  

witness in the BMW case and the ‘star witness of the prosecution’. Finally the court held

“207. Under these circumstances, we are left with no option but to hold that Mr. Khan was  quite familiar with Mr. Kulkarni; Mr. Khan was aware that Mr. Kulkarni was in touch with  Mr. Anand; Mr. Khan was not unwilling to advise Mr. Kulkarni or at least discuss with him  the issue of accepting the summons sent by the trial court to Mr. Kulkarni. We also have no  option  but  to  hold  that  Mr.  Khan very seriously erred  in  not  bringing important  facts  touching upon the BMW case to his client’s notice, the prosecution. The error is so grave as  to make it a deliberate omission that may have a very serious impact on the case of the  prosecution in the Trial court.  Consequently, we have no option but to hold Mr.  Khan  criminally liable,  beyond a  shadow of  doubt,  for  actually interfering,  if  not  tending to  interfere with the due course of the judicial proceeding, that is the BMW case, and thereby  actually interfering, if not tending to interfere with the administration of justice in any other  manner”.

Submissions on behalf of IU Khan:

114. Mr. P. P. Rao, learned Senior Advocate appearing for IU Khan mainly submitted that  

even if the sting recording is accepted as true, on the basis of the exchange that took place between  

his client and Kulkarni it cannot be said that he acted in a way or colluded in any action aimed at  

interfering  or  tending  to  interfere  with  the  prosecution  of  the  accused  in  the  BMW  case  or  

interfering or tending to interfere with or obstructing or tending to obstruct the administration of  

justice in any other manner. He further submitted that the findings of the High Court were based on  

assumptions that were not only completely unfounded but in respect of which the appellant was  

given no opportunity to defend himself. The High Court held the appellant guilty of committing  

criminal contempt of court referring to and relying upon certain alleged facts and circumstances that

did not form part  of the notice and in regard to which he was given no opportunity to  defend  

himself. Mr. Rao submitted that along with the notice issued by the High Court the appellant was  

not given all the materials concerning his case and he was thus handicapped in submitting his show  

cause. He further submitted that the High Court erroneously placed the case of his client at par with  

RK Anand and convicted him because RK Anand was found guilty even though the two cases were  

completely  different.  Mr.  Rao  was  also  highly  critical  of  the  TV  channel.  He  questioned  the  

propriety of the sting operation and the telecast of the sting programme concerning a pending trial  

and involving a court witness without any information to, much less permission by the trial court or  

even the High Court or its Chief Justice. Mr. Rao submitted that when Kulkarni first approached  

Poonam Agarwal  she thought  it  imperative  to  first  obtain  the approval  of  her  superiors  before  

embarking upon the project,  but  it  did not  occur  to  anyone, including her superiors in  the TV  

channel to obtain the permission or to even inform at least the Chief Justice of the Delhi High Court  

before taking up the operation fraught with highly sinister implications. Mr. Rao also assailed the  

judgment coming under appeal on a number of other grounds.  

SUBMISSIONS CONSIDERED:

115. We have carefully gone through all the materials concerning IU Khan. We have perused  

the  transcript  of  the  exchange  between  Kulkarni  and  IU Khan  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.

IU Khan’s conduct quite improper:

116. We have not the slightest doubt that the exchange between Kulkarni and IU Khan 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. We are not prepared to accept  

for  a moment  that  on seeing Kulkarni  suddenly after several  years  in  the company of a ‘burly  

stranger’ (Deepak Verma) IU Khan 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 play-acting and pampering Kulkarni 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) and at no  

point the situation appears to be out of his control. As a matter of fact, we feel constrained to say  

that the plea is  not quite worthy of a lawyer of IU Khan’s standing and we should have much  

appreciated had he simply taken the plea of an error of discretion on his part.  

117. Coming  back  to  the  exchange  between  IU  Khan  and  Kulkarni,  we  accept  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. We  

grant everything that can be said in favour of IU Khan. The meeting took place without any prior  

appointment from him. Kulkarni was able to reach him, unlike RK Anand, without his permission  

or consent. IU Khan did not seem to be overly enthused at the appearance of Kulkarni. Accosted by  

Kulkarni, 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 who came into the chamber far more cheerfully than Kulkarni. But the  

undeniable fact remains that he was talking to him all the time about the BMW trial and the related  

proceedings. Instead of simply telling him to receive the summons and appear before the court as  

directed, IU Khan gave reassurances to Kulkarni telling him about the revision filed in the High  

Court against the trial court’s order. He advised him to relax saying that since he had dropped him  

(as a prosecution witness) the court was no one to ask for his statement. The part of the exchange  

that took place outside the chamber was worse. Inside the chamber, at one stage, IU Khan seemed  

even dismissive of Kulkarni but on coming out he appeared quite anxious to fix up another meeting  

with him at his residence giving promising good Scotch whisky as inducement. IU Khan would be  

the first person to deny any friendship or even a long acquaintanceship with Kulkarni. The only  

common factor between them was the BMW case in which one was the prosecutor and the other  

was a prosecution witness, later dropped from the list of witnesses. A lawyer, howsoever, affable  

and sociable by disposition, if he has the slightest 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  

Khan and Kulkarni. We are also not prepared to believe that in his conversation with Kulkarni, IU  

Khan did not mean what he was saying and he was simply trying to somehow get rid of Kulkarni.  

The video of the sting recordings leaves no room for doubt that IU Khan was freely discussing the  

proceeding of BMW case with Kulkarni and was not at all averse to another meeting with him  

rather he was looking forward to it. We, therefore, fully endorse the High Court finding that the  

conduct of IU Khan was inappropriate for a lawyer in general and a prosecutor in particular.  

CRIMINAL CONTEMPT???

118. But there is a wide gap between professional misconduct and criminal contempt of court  

and we now proceed to examine whether on the basis of materials on record the charge of criminal  

contempt of court can be sustained against IU Khan.    

119. The High Court held that there was an extraordinary degree of familiarity between IU  

Khan, Kulkarni and RK Anand and each of them knew that the other two were equally familiar with  

each other. So far as BMW trial is concerned Kulkarni was a link between IU Khan and RK Anand.  

IU Khan, by reason of his familiarity both with RK Anand and Kulkarni would also know about the  

game that was afoot for the subversion 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.  

120. In the two sting recordings concerning RK Anand there are ample references to IU Khan  

to suggest a high degree of familiarity between the three. But in the sting on IU Khan the only words  

used by him that might connect him to RK Anand through Kulkarni are ‘Bade Saheb’. If ‘Bade  

Saheb’ referred to RK Anand, the involvement of IU Khan needs no further proof. The question,  

however, is whether that finding can be safely arrived at.

121. Now, what are the materials that might suggest that while asking Kulkarni whether he  

had met Bade Saheb, IU Khan meant RK Anand. Apart from the piece of conversation between  

Deepak Verma and Kulkarni when they were returning after meeting with IU Khan, relied upon by

the High Court, there is another material, for whatever its worth, that doesn’t find any mention in  

the High Court judgment. It is Kulkarni’s statement in his interview recorded at the NDTV studio.  

He said as follows;  

“He (IU Khan) directed me to Mr RK Anand is in that video you can find ‘Bade Saheb’. He  meant that Mr. RK Anand.”  

122. We mention it only because it is one of the materials lying on the record. Not that we rely  

on it in the least. Having known the conduct of Kulkarni throughout this episode as discussed in  

detail in the earlier part of the judgment it is impossible to rely on this statement and we don’t even  

fault the High Court for not taking any note of it.

123. The only other positive material in this regard is the one referred to by the High Court.  

The High Court observed that towards the end of the recording by the button camera, “Mr. Deepak  

Verma asked Mr. Kulkarni about the identity of Bade Saheb and Mr. Kulkarni responded by  

saying that it  is  Mr. Anand.”  But the reference by the High Court  to  that particular piece of  

conversation between Deepak Verma and Kulkarni is neither complete nor accurate. We have noted  

earlier that the transcript submitted to the High Court by NDTV was incomplete and it covered only  

the exchange between Kulkarni and IU Khan. If the High Court had before it the full transcript of  

the entire recording it  might  have taken a  different  view. We have viewed the CD labelled as  

“Button Spy cam Recording done by Sunil Kulkarni. IU Khan Sting Operation” a number of times  

and we find that on the way back after meeting IU Khan, Kulkarni was being quite voluble. He  

spoke to Deepak Verma and gave him some instructions. A part of their conversation, relevant for  

our purpose is as follows:

EXCHANGE BETWEEN KULKARNI & DEEPAK VERMA:

Kulkarni:     Humming some tune

Kulkarni:     Don’t go to car directly. We’ll take an auto

Deepak Verma:   Take an auto?

Kulkarni:    Haan.  Thoda sa aage chalen ge

Kulkarni:      Aap ne suna nahin? “Bade Saheb se mile ya nahin?”

Deepak Verma:  Haan

Kulkarni:     Ab dekho kal you will get [unclear..] you what  you want

Deepak Verma:    Kal aap Bade Saheb se milne ja rahe hain?

Kulkani:      Na, Haan unke ghar pe. No, you don’t have to come. You just    come and stay outside.   

Theek hai na?

[unclear…  ]  Haan ab to aap ke samne hua sab kucchh

Deepak Verma:    Bade Saheb woh hai, Anand?

Kulkarni:      Hmm.

Noise of some auto/heavy vehicle engine  

Deepak Verma: [Unclear…] Ek baar iska Photograph lein….Iska photograph aaya ki nahin aaya?

Kulkarni:   Aaya. Aaya, aaya.

Kulkarni:  Pukka trail hoga hamara. Hundred percent Tail hoga.

Deepak Verma: Police Waale ko kaise kah raha tha who? Gaadi Dilwao  

yaar..

----------------------------------  

124. From  the  manner  of  speaking  Kulkarni  appeared  to  be  giving  the  impression  that  

everything went off according to the plan. He also tended to be slightly melodramatic. (He would  

not go to the car directly because they were bound to be followed!)

125. Now,  while  examining  what  Kulkarni  understood  or  rather  what  he  wanted  Deepak  

Verma 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 Kulkarni, who for his own reasons  

was anxious to get NDTV’s help for doing the sting, it was natural to find out and show to Deepak  

Verma some link between IU Khan and RK Anand irrespective of whether or not there was, in  

reality, any link between the two. There is no way to find out whether Kulkarni really believed that  

by ‘Bade Saheb’ IU Khan meant RK Anand (Like everything else even on this issue he changed his

stand from time to time!) or he just wanted Deepak Verma to believe so. But even if Kulkarni really  

understood Bade Saheb to mean RK Anand, that  would not  change the position much. For our  

purpose it is not important what Kulkarni or Deepak Verma or any one else understood (truthfully or  

otherwise!) by that expression. One may use an expression to mean a certain thing but to the listener  

it may mean something quite different. What is important here is to judge what IU Khan meant  

when he used that expression. In our view, on the basis of the exchange between Kulkarni and  

Deepak Verma, it will be highly unsafe to hold that when IU Khan asked Kulkarni whether he had  

met “Bade Saheb’ he meant RK Anand.  

126. The High Court rejected IU Khan’s explanation that what he meant by ‘Bade Saheb’ was  

some senior officer in the police headquarter. According to IU Khan, Kulkarni was in the habit of  

directly approaching the superior police officers and he would refer to them by that expression. In  

support of the plea in his reply affidavit (paragraph 12) IU Khan stated as follows:

“Even during the course of his deposition in court Mr. S. Kulkarni had used the expression  “Bade  Sahab” while  referring  to  the  higher  police  officers.  The  Ld.  trial  court  also  translated the same in English while recording the statement as “higher police officers”. In  the cross-examination Mr. S. Kulkarni has stated “I had voluntarily gone to the higher  police officers of the police headquarter””.  

The High Court rejected the aforesaid plea observing as follows;

“It was further submitted that during the recording of Mr. Kulkarni’s evidence on an earlier  occasion, a reference to Bade Saheb was made more than once. “Bade Saheb” was then  translated and recorded in the deposition to mean senior police officers. Learned counsel  for Mr. Khan, however, did not produce any material to support the last submission”.

(emphasis added)  

127. Mr.  P.  P.  Rao submitted  that  the approach of  the  High Court  was quite  unfair.  The  

proceeding before the High Court was not in the nature of a suit or a criminal trial. In response to the  

notice issued by the Court the appellant had made a positive statement in his reply affidavit. The  

statement was not formally traversed by anyone. There was, therefore, no reason for the appellant to  

assume that he would be required to produce evidence in support of the statement. In case the High  

Court felt the need for some evidence in support of the averment it should have at least made it  

known to the appellant. But the High Court without giving any inkling to the appellant rejected the  

plea in the final judgment. The appellant was thus clearly denied a proper opportunity to defend

himself.  We find that  the submission is  not without  substance. 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 Khan without giving him  

any opportunity to substantiate it.

128. Further, as noticed above, the High Court, for arriving at the finding that there was a high  

degree of familiarity among IU Khan, Kulkarni and RK Anand has repeatedly used the transcripts of  

the meetings between Kulkarni and RK Anand. It is  indeed true that in the exchanges between  

Kulkarni and RK Anand there are many references to IU Khan. That may give rise of a strong  

suspicion, of a common connection between the three. But having regard to the charge of criminal  

contempt any suspicion howsoever strong cannot take the place of proof and we don’t feel it wholly  

prudent to rely upon the exchanges between Kulkarni and RK Anand to record a finding against IU  

Khan.  

129. Further,  according to the High Court,  the essence of culpability of IU Khan was his  

omission  to inform the prosecution and the Court  “that  one of  its  witnesses was more than an  

acquaintance of defence lawyer”.  

130. Mr. P. P. Rao submitted that the High Court convicted the appellant for something in  

regard to which he was never given an opportunity to defend himself. From the notice issued by the  

High Court it was impossible to discern that the charge of criminal contempt would be eventually  

fastened on him for his failure to inform the court and the prosecution about the way Kulkarni’s was  

being manipulated by the defence. Mr. Rao further submitted that the reason assigned by the Court  

to hold the appellant guilty was based purely on assumption. The appellant was given no opportunity  

to show that, as a matter of fact, after Kulkarni met him at the Patiala House on April 28, 2007 he  

had informed the concerned authorities that after being summoned by the court Kulkarni was back to  

his old tricks. He further submitted that the appellant, given the opportunity, could also show that  

the decision to not examine him as one of the prosecution witnesses was taken by the concerned

authorities in consultation with him. We find substance in Mr. Rao’s submission.  

131. In  our  considered  view,  on  the  basis  of  materials  on  record  the  charge  of  criminal  

contempt  cannot  be held  to  be  satisfactorily established against  IU Khan.  In our  opinion  he is  

entitled to the benefit of doubt.  

PROCEDURE FOLLOWED BY THE HIGH COURT:

132. A lot has been argued about the procedure followed by the High Court in dealing with the  

matter. On behalf of RK Anand it was strongly contended that by only asking for the copies of the  

original sting recordings and allowing the original microchips and the magnetic tapes to be retained  

in  the  custody  of  NDTV  the  High  Court  committed  a  serious  and  fatal  lapse.  Mr.  Gopal  

Subramanium also took the view that  though the final judgment passed by the High Court  was  

faultless, it was nevertheless an error on its part to leave the original sting recordings in the safe  

custody of the TV channel. On principle and as a matter of proper procedure, the Court, at the first  

instance, ought to have taken in its custody all the original electronic materials concerning the stings.

133. 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 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.  

134. However, what we find completely inexplicable is why, at least at the beginning of the  

proceeding,  the  High Court  did  not  put  NDTV,  along with  the  two appellants,  in  the  array of

contemnors. Looking back at the matter (now that we have on the record before us the appellants’  

affidavits in reply to the notice issued by the High Court as well as their first response to the telecast  

in the form of their live interviews), we are in the position to say that 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 indicated above in the case of IU Khan might not  

have occurred.

THE PUNISHMENT: PROHIBITION AGAINST APPEARING IN COURTS

135. We were also addressed on the validity of the High Court’s direction prohibiting the two  

appellants from appearing before the High Court and the courts subordinate to it for a period of four  

months. Though by the time the appeals were taken up for hearing the period of four months was  

over, Mr. Altaf Ahmed contended that the High Court’s direction was beyond its competence and  

authority. In a proceeding of contempt punishment could only be awarded as provided under the  

Contempt of Courts Act, though in a given case the High Court could debar the contemnor from  

appearing in court till  he purged himself of the contempt. He further submitted that professional  

misconduct is a subject specifically dealt with under the Advocates Act and the authority to take

action against a lawyer for any professional misconduct vests exclusively in the State Bar Council,  

where he may be enrolled, and the Bar Council of India. The Counsel further submitted that a High  

Court could frame rules under section 34 of the Advocates Act laying down the conditions subject to  

which an advocate would be permitted to practise in the High Court and the courts subordinate to it  

and such rules may contain a provision that an advocate convicted of contempt of court would be  

barred from appearing before it or before the subordinate courts for a specified period. But so far the  

Delhi High Court has not framed any rules under section 34 of the Act. According to him, therefore,  

the punishment awarded to the appellant by the High Court had no legal sanction.

136. Mr. Nageshwar Rao learned Senior Advocate assisting the Court as  amicus  shared the  

same  view.  Mr.  Rao  submitted  that  the  direction  given  by  the  High  Court  was  beyond  its  

jurisdiction.  In  a  proceeding  of  contempt  the  High  Court  could  only impose  a  punishment  as  

provided under section 12 of the Contempt of Courts Act, 1971. The High Court was bound by the  

provisions of the Contempt of Courts Act and it was not open to it to innovate any new kind of  

punishment in exercise of its powers under Article 215 of the Constitution or its inherent powers.  

Mr. Rao submitted that a person who is a law graduate becomes entitled to practise the profession of  

law  on  the  basis  of  his  enrolment  with  any  of  the  State  Bar  Councils  established  under  the  

Advocates Act, 1961. Appearance in Court is the dominant, if not the sole content of a lawyer’s  

practice. Since, the authority to grant licence to a law graduate to practise as an advocate vests  

exclusively in a State Bar Council, the power to revoke the licence or to suspend it for a specified  

term also vests in the same body. Further, the revocation or suspension of licence of an advocate has  

not only civil  but  also penal consequences; hence, the relevant statutory provisions in regard to  

imposition of punishment must be strictly followed. Punishment by way of suspension of the licence  

of an advocate can only be imposed by the Bar Council, the competent statutory body, after the  

charge is established against the advocate concerned in the manner prescribed by the Act and the  

Rules  framed  thereunder.  The  High  Court  can,  of  course,  prohibit  an  advocate  convicted  of  

contempt from appearing before it or any court subordinate to it till the contemnor purged himself of  

the contempt. But it cannot assume the authority and the power statutorily vested in the Bar Council.

137. Mr. Gopal Subramanium the other  amicus,  however, approached the issue in a slightly  

different  manner  and  took  the  middle  ground.  Mr.  Subramanium  submitted  that  the  power  to  

suspend the licence of a lawyer for a reason that may constitute contempt of court and at the same  

time may also amount to professional misconduct is a power to be exercised by the disciplinary  

authority i.e. the Disciplinary Committee of the State Bar Council where the concerned advocate is  

registered or the Bar Council of India. The Supreme Court has held that even it, in exercise of its  

powers under Article 142, cannot override statutory provisions and, assuming the position of the  

Disciplinary Committee, suspend the licence of a lawyer. Such a course cannot be followed even by  

taking recourse to the appellate powers of the Supreme Court under section 38 of the Advocates Act  

while  dealing  with  a  case  of  contempt  of  court  (and  not  an  appeal  relating  to  professional  

misconduct  as  such).  But  approaching  the  matter  from  a  different  angle  Mr.  Subramanium  

submitted,  it  is,  however,  open  to  the  High  Court  to  make  rules  regulating  the  appearance  of  

advocates in courts. He further submitted that although the Delhi High Court has not framed any  

specific  rules  regulating the  appearance  of  advocates,  it  is  settled  law that  power  vested  in  an  

authority would not cease to exist merely because rules prescribing the manner of exercise of power  

have not been framed.  

138. The contention that the direction debarring a lawyer from appearing before it or in courts  

subordinate to it is beyond the jurisdiction of the High Court is based on the premise that the bar is  

akin  to  revocation/suspension  of  the  lawyer’s  licence  which  is  a  punishment  for  professional  

misconduct that can only be inflicted by the Bar Council after following the procedure prescribed  

under the Advocates Act. The contention finds support from the Constitution Bench decision of this  

Court in Supreme Court Bar Association vs. Union of India, (1998) 4 SSC 409. In paragraph 37 of  

the decision the Court observed and held as under:  

“37.The nature and types of punishment which a court of record can impose in a case of  established contempt under the common law have now been specifically incorporated in the  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,  contumacious,  unbecoming  or  blameworthy conduct of an Advocate-on-Record, this Court possesses jurisdiction, under  the Supreme Court Rules, itself, to withdraw his privilege to practice as an Advocate-on- Record  because  that  privilege  is  conferred  by  this  Court  and  the  power  to  grant  the  privilege includes the power to revoke or suspend it.  The withdrawal of that  privilege,  however, does not amount to suspending or revoking his licence to practice as an advocate  in other courts or tribunals.”  

139. The matter, however, did not stop at Supreme Court Bar Association. In Pravin C Shah  

vs. K. A. Mohd. Ali and Another, (2001) 8 SCC 650, this Court considered the case of a lawyer who  

was  found guilty of  contempt  of  court  and  as  a  consequence  was  sought  to  be  debarred  from  

appearing in courts till he purged 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 would 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 could also be regulated by them in exercise of  their disciplinary powers. The right to practise, no doubt, is genus of which the right to  appeal  and conduct  cases  in  the court  may be a specie.  But the right to  appear and  conduct cases in the court is a matter on which the court must and does have major  supervisory and controlling power. Hence courts cannot be and are not divested of  control or supervision of conduct in court merely because it may involve the right of  an advocate. A rule can stipulate that a person who has committed contempt of court or  has behaved unprofessionally and in an unbecoming manner will  not  have the right  to  continue to appear and plead and conduct cases in courts. The Bar Councils cannot overrule  such a regulation concerning the orderly conduct of court proceedings. On the contrary, it  will be their duty to see that such a rule is strictly abided by. Courts of law are structured in  such a design as to evoke respect and reverence to the majesty of law and justice. The  machinery for dispensation of justice according to law is operated by the court. Proceedings  inside the courts are always expected to be held in dignified and orderly manner. The very  sight of an advocate, who is guilty of contempt of court or of unbecoming or unprofessional

conduct, standing in the court would erode the dignity of the court and even corrode its  majesty besides impairing the confidence of the public in the efficacy of the institution of  the courts. The power to frame such rules should not be confused with the right to practice  law. While the Bar council can exercise control over the latter, the courts are in control of  the former. The distinction is clearly brought out by the difference in language in Section  49 of the Advocates Act on the one hand and Article 145 of the Constitution of India and  Section 34(1)  of  the Advocates  Act  on the other.  Section 49 merely empower the Bar  Council to frame rules laying down conditions subject to which an advocate shall have a  right  to  practise  i.e.  do  all  the  other  acts  set  out  above.  However,  Article  145  of  the  Constitution  of  India  empowers  the  Supreme  Court  to  make  rules  for  regulating  this  practice and procedure of the court including inter alia rules as to persons practising before  this Court.  Similarly Section 34 of the Advocates Act empowers High Courts to frame  rules, inter alia to lay down conditions on which an advocate shall be permitted to practice  in courts. Article 145 of the Constitution of India and Section 34 of the Advocates Act  clearly show that there is no absolute right to an advocate to appear in a court. An advocate  appears  in  a  Court  to  such  conditions  as  are  laid  down  by  the  Court.  It  must  be  remembered that Section 30 has not been brought into force and this also shows that  there is no absolute right to appear in a court. Even if Section 30 were to be brought  into force control of proceedings in a court will always remain with the court. Thus  even then the right to appear in court will be subject to complying with conditions  laid down by courts just as practice outside courts would be subject to conditions laid  down by the Bar Council  of  India. There is  thus  no conflict  or  clash between other  provisions  of  the  Advocates  Act  on  the  one  hand  and  Section  34  or  Article  145  Constitution of Indian on the other.”

                                                                      (emphasis added)

142. In both  Pravin  C.  Shah  and  Ex.  Capt.  Harish  Uppal  the  earlier  Constitution  Bench  

decision was extensively considered. The decision in Ex. Capt. Harish Uppal was later followed in  

a three judge Bench decision in Bar Council of India vs. The High Court of Kerala, (2004) 6 SCC  

311.

143. In Supreme Court Bar Association the direction prohibiting an advocate from appearing  

in court for a specified period was viewed as a total and complete denial of his right to practise law  

and the bar was considered as a punishment inflicted on him.1 In Ex. Capt. Harish Uppal it was  

seen not as punishment  for professional  misconduct  but as a measure necessary to regulate the  

court’s proceedings and to maintain the dignity and orderly functioning of the courts.  We may  

respectfully add that  in  a  given case  a  direction  disallowing an  advocate  who is  convicted of  

criminal contempt from appearing in court may not only be a measure to maintain the dignity and  

1  Though in Paragraph 80 of the decision, as seen earlier there is an observation that in a given case it  might be possible for this court or the High Court to prevent the contemnor advocate to appear before it  till he purge himself of the contempt.

orderly functioning of the courts but may become necessary for the self protection of the court and  

for preservation of the purity of court proceedings. Let us, for example, take the case where an  

advocate is shown to have accepted money in the name of a judge or on the pretext of influencing  

him; or where an advocate is found tampering with the court’s record; or where an advocate is  

found actively taking part in faking court orders (fake bail orders are not unknown in several High  

Courts!); or where an advocate has made it into a practice to browbeat and abuse judges and on that  

basis has earned the reputation to get a case transferred from an ‘inconvenient’ court; or where an  

advocate is found to be in the habit of sending unfounded and unsubstantiated allegation petitions  

against judicial officers and judges to the superior courts.  Unfortunately these examples are not  

from imagination. These things are happening more frequently than we care to acknowledge. We  

may also add that these illustrations are not exhaustive but there may be other ways in which a  

malefactor’s  conduct  and  actions  may pose  a  real  and  imminent  threat  to  the  purity of  court  

proceedings, cardinal to any court’s functioning, apart from constituting a substantive offence and  

contempt of court and professional misconduct. In such a situation the court does not only have the  

right but it also has the obligation cast upon it to protect itself and save the purity of its proceedings  

from being polluted in any way and to that end bar the malefactor from appearing before the courts  

for  an  appropriate  period  of  time.  It  is  already explained  in  Ex.  Captain  Harish  Uppal  that  a  

direction of this kind by the Court cannot be equated with punishment for professional misconduct.  

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 as indicated in the decision.

144. We respectfully submit that the decision in  Ex-Capt. Harish Uppal vs. Union of India  

places the issue in correct perspective and must be followed to answer the question at issue before  

us.

145. Lest we are misunderstood it needs to be made clear that 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).

146. Ideally every High Court should have rules framed under section 34 of the Advocates  

Act in order to meet with such eventualities but even in the absence of the Rule the High Court  

cannot  be  held  to  be  helpless  against  such  threats.  In  a  matter  as  fundamental  and  grave  as  

preserving the purity of judicial proceedings, the High Court would be free to exercise the powers  

vested in it under section 34 of the Advocates Act notwithstanding the fact that Rules prescribing  

the manner of  exercise of  power have not  been framed.  But in  the absence of  statutory Rules  

providing for such a course an advocate facing the charge of contempt would normally think of only  

the  punishments  specified under  section 12 of  the  Contempt  of  Courts  Act.  He may not  even  

imagine that at the end of the proceeding he might end up being debarred from appearing before the  

court.  The rules of natural  justice,  therefore,  demand that  before passing an order debarring an  

advocate from appearing in courts he must be clearly told that his alleged conduct or actions are  

such that if found guilty he might be debarred from 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.    

147. 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  

from today. 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. But as to the consequence of that we shall deal with in due course.

THE QUESTION OF SENTENCE:

148. Having  regard  to  the  misdeeds  of  which  RK  Anand  has  been  found  guilty,  the  

punishment given to him by the High Court can only be regarded as nominal. We feel that the  

leniency shown by the High Court in meting out the punishment was qute misplaced. And the view  

is greatly reinforced if one looks at the contemnor’s conduct before the High Court. As we shall see  

presently, before the High Court the contemnor took a defiant stand and constantly tried to obstruct  

the proceedings.

THE DIVERSIONARY & INTIMIDATORY TACTICS IN THE PROCEEDING:

149. Even  as  contempt  notices  were  issued  by the  High  Court,  or  even  before  it,  some  

diversionary and even intimidatory tactics were employed to stonewall the proceeding initiated by  

it.

Kulkarni’s Affidavit:

150. The first in the series was an affidavit filed on August 6, 2007 by Kulkarni in regard to  

the  stings  done  by him.  The  affidavit  was  not  called  for  by the  Court  and it  was  filed  quite  

gratuitously.  It was a jumble of non-sense, half truths and lies. Kulkarni made all conceivable and  

even some inconceivable allegations against NDTV in general and Poonam Agarwal in particular.  

He stated that Poonam Agarwal had recorded his first interview on April 25, 2003 and thereafter on  

several other dates till the last one in the last week of May before the telecast. It is not clear on  

whose behalf Poonam Agarwal would take his earlier interviews because she had joined NDTV  

only two years prior to July 2007. He then alleged that Poonam Agarwal subjected him to “Gobel’s  

technique” (sic. Goebbels’s) to make him ‘illicit’ (sic. elicit) certain answers ‘to’ (sic. from) RK  

Anand  and  IU Khan  in  a  particular  manner.   What  is  of  significance  in  Kulkarni’s  affidavit,  

however, is that it anticipated what in the sting recordings might prove fatal for RK Anand and IU  

Khan and tried to do the ground work for their defence. In regard to his meeting with IU Khan,  

Kulkarni said that he met and spoke to him in the manner directed by Poonam Agarwal. He further  

said on affidavit that when IU Khan asked him if he had met ‘Bade Saheb’ he implied some senior  

police official but it was Poonam Agarwal who forced him to say that IU Khan referred to RK

Anand. Now, this is exactly what IU Khan 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 Khan in the evening but the conversation that took  

place in that meeting exposed NDTV story and, therefore, that recording was withheld from being  

telecast.

151. Similarly, in regard to his meeting with RK Anand, Kulkarni said that he met him on  

being forced by Poonam Agarwal. He further said on affidavit that he had mentioned the sum of  

rupees two and half crores to RK Anand on the direction of Poonam Agarwal. He himself had  

neither any idea nor the intention to ask him for any money.  He further said that on the mention of  

the sum of money RK Anand was shocked and he rebuked him by making the sarcastic remark that  

he should ask for five crores and not only two and half crores. He said that he got the message that  

no demand for money would be entertained. The similarity between what  Kulkarni  said in  his  

affidavit and what RK Anand had to say about this matter and the manner in which he would say it  

is  unmistakable.  We are  unable  to  believe that  the  manner in  which  Kulkarni’s  affidavit  fore-

shadows the proceedees defence was simply coincidental. It does not require much imagination to  

see that Kulkarni had once again switched over sides and he had joined hands with those whom he  

had earlier tried to trap in the stings.

152. In one of the paragraphs of the affidavit there is a ludicrous description of his meeting  

with Lovely. It is stated that despite persistent request by him for a meeting there was no positive  

response from RK Anand. Then, “suddenly a Sardar Ji came and started talking with me. In his  

pocket I saw some flash light beeping which alerted me that I was trapped. I was upset and wanted  

to convey all the facts to Hon’ble Court but Ms. Poonam Agarwal prevailed over me and dissuaded  

me to do the same”. Even this apparently absurd story was not without purpose; its object was to  

provide for the existence of another recording, apart from his own sting, of his meeting with Lovely.

153. The recording, by Lovely, of their meeting was the second diversionary attempt in the  

proceeding before the High Court.

Another audio recording of the meeting between Kulkarni & Lovely:

154. The High Court registry received an audio cassette along with a letter from one Sunil  

Garg. In the letter it was stated that the cassette had the recording of some conversation between  

Lovely and Kulkarni. The cassette proved to be completely blank. Then on notice being issued to  

him Garg appeared in Court and made a statement on oath. He said that Kulbir Singh alias Lovely  

was his friend. Shortly before his death he had come to him and handed over to him to two audio  

cassettes  saying that  those contained the recordings of his  conversation  with Kulkarni.  He had  

earlier sent one of the two cassettes without playing it on the recorder. He later came to learn from  

the newspaper reports the cassette was blank. He then played the other cassette and found it had the  

recording of some conversation between his friend Lovely and someone else. He recognised the  

voice of his friend Lovely. He submitted the other cassette in the High Court.

155. We would have completely ignored Kulkarni’s affidavit and Garg’s audio cassettes as  

foolish and desperate attempts to create some defence, not worthy of any attention. But there is  

something more to come that is impossible to ignore.

“REQUEST” FOR RECUSAL:   

156. Of all the obstructive measures adopted before the High Court the most unfortunate and  

undesirable came from RK Anand 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 Anand’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 justice at the hands of Manmohan Sarin J. He further stated alluding to some  

past events, that he had tried his 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.

157. The recusal petition was primarily based on the plea that he had reasonable apprehension

of bias, for Sarin J. was personally hostile to him. The self perceived hostility between the applicant  

(RK Anand) and Sarin J. dated back to 1984 when he was still a lawyer. They had a quarrel then  

that had led to an exchange of verbal abuses. In 1988 Sarin J. (still a lawyer), in his position as the  

Vice  President  of  the  Delhi  High  Court  Bar  Association,  had  moved  a  resolution  before  the  

Association’s  executive  committee  opposing  any  proposal  for  the  applicant’s  nomination  for  

appointment as a judge of the Delhi High Court. Sarin J., as a lawyer, had among his clients, the  

magazine, ‘India Today’ (Living Media) and the owners of NDTV were closely associated with  

‘India Today’. Sarin J., as an advocate had done the cases of the applicant’s brothers whom he had  

referred to him. It was stated that the judge, thus, might have been privy to some family gossip  

causing him to be prejudicially disposed towards the applicant. The applicant had earlier sent a  

complaint to the Prime Minister against the Law Minister, who was one of his (applicant’s) political  

rival. In the complaint, apart from the Law Minister, allegations were also made against the then  

Chief Justice of the High Court. And in that connection it was alleged that the Chief Justice had  

around him a coterie of Judges that included Sarin J. On the arrest of a sitting judge of the Delhi  

High Court by the CBI the media had gone to Sarin J. for his comments and even this, it was stated,  

might lead him to harbour ill will against the applicant. In a civil case for damages arising from the  

BMW case the matter was settled between the parties (one of the victims of the accident on the one  

side and the family of the accused Sanjeev Nanda on the other). But Sarin J. who was a member of  

the bench before which the matter came up for recording the settlement, did not allow it to be said  

in the compromise petition that the accident was caused by a truck and not by any car. It showed,  

according to the applicant, that Sarin J. had some pre-conceived notion that the accident was caused  

by the car driven by Sanjeev Nanda. The bench had appointed as amicus curiae a lawyer personally  

hostile to the applicant. And lastly the applicant had moved the Chief Justice on the administrative  

side to assign the matter to some other bench.

158. In one glance, the grounds on which recusal was asked for appear fit to be rejected out of  

hands. But the court gave the matter far greater importance than it merited, apparently because it  

saw a personal angle in it. The petition was heard for three days before it was rejected by the order

dated October 4, 2007. It is a long order running into twenty seven pages authored by Sarin J. The  

order dealt with all the grounds advanced in support of the recusal petition and effectively showed  

that there was no truth or substance in any of those grounds. In regard to the 1988 resolution of the  

Bar Association allegedly passed against RK Anand at the instance of Mr. Sarin the Court called  

for the Association’s Register of Resolutions for the years 1988 and 1989. From the Association’s  

Register it transpired that at the relevant time Mr. Sarin was not an office bearer of the Association  

but was simply a member of its Executive Committee. Further, there was no resolution concerning  

RK Anand. A resolution of the nature stated in the recusal application was passed against someone  

from the Judicial Service. It is true that one Mr. Tufail, the Joint Secretary of the Association had  

wished to move a resolution against RK Anand too and was given the permission to do so by the  

Executive Committee. But he did not actually move any resolution and later said that he did not  

have necessary proof in support of the allegations and the matter was dropped. As regards the  

complaint to the Prime Minister in which Sarin J. was said to be a member of the alleged coterie  

around the Chief Justice, Sarin J. commented that until a copy of the complaint was filed with the  

recusal application he was not even aware of it. Having thus 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.  

In the order the concerned judge further observed:

“The path of recusal is very often a convenient and a soft option. This is especially so since  a Judge really has no vested interest in doing a particular matter.  However, the oath of  office taken under Article 219 of the Constitution of India enjoins the Judge to duly and  faithfully and to the best  of his  knowledge and judgment,  perform the duties  of office  without fear or favour affection or ill will while upholding the constitution and the laws. In  a case, where unfounded and motivated allegations of bias are sought to be made with a  view of forum hunting / Bench preference or brow-beating the Court, then, succumbing to  such a pressure would tantamount to not fulfilling the oath of office.”

159. The above passage, in our view, correctly sums up what should be the Court’s response in  

the face of a request for recusal made with the intent to intimidate the court or to get better of an  

‘inconvenient’ judge or to obfuscate the issues or to cause obstruction and delay the proceedings or  

in any other way frustrate or obstruct the course of justice. We are constrained to pause here for a  

moment and to express grave concern over the fact that lately such tendencies and practices are on  

the increase. We have come across instances where one would simply throw a stone on a judge (who  

is quite defenceless in such matters!) and later on cite the gratuitous attack as a ground to ask the  

judge to recuse himself from hearing a case in which he would be appearing. Such conduct is bound  

to cause deep hurt to the judge concerned but what is far greater importance is that it defies the very  

fundamentals of administration of justice. 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.  

160. 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.  

161. This development provided RK Anand with another opportunity to carry on his offensive  

further. He unhesitatingly availed of the opportunity and filed an application (Crl. M. 11677/2007)  

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 by

the previous bench as it arose from an order passed by that bench.

162. The clarification/review application was rejected by a long order dated November 29,  

2007 authored by Lokur J. As we shall see, henceforth all substantive orders in the proceeding were  

written, 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.

163. Here, it  may be noted that apart from filing an application for its  clarification/review  

before the High Court, the order rejecting the recusal application was also sought to be challenged  

before this Court  by filing SLP (Crl) No. 7374 of 2007. The SLP was, however, withdrawn on  

December  14,  2007.  Nevertheless,  the  challenge  to  the  High  Court  order  rejecting  the  recusal  

application is still not given up and paragraphs H & I of the Grounds in the present Memo of appeal  

expressly seek to assail that order.

164. Both Mr. Salve and Mr. Subramanium strongly submitted that the appellant had plainly  

no respect for the court or the court proceedings. Mr. Salve submitted that the recusal application  

was a brazen attempt to browbeat the High Court and in that attempt the appellant succeeded to a  

large extent since the prohibition to appear before the courts for a period of only four months could  

only  be  considered  as  a  token  punishment  having  regard  to  the  gravity  of  his  conduct.  Mr.  

Subramanium also felt strongly about the recusal application but before taking up the issue he fairly  

tried to give another opportunity to the appellant stating that perhaps even now the appellant might  

wish to withdraw the grounds in the SLP challenging the order passed by the High Court on the  

recusal application. The appellant was given ample time to consider the suggestion but later on  

enquiry Mr. Altaf Ahmed 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.

165. The action of the appellant 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. We are in agreement with Mr. Salve and Mr. Subramanium that punishment  

given to him by the High Court was wholly inadequate and incommensurate to the seriousness of his  

actions  and  conduct.  We,  accordingly,  propose  to  issue  a  notice  to  him  for  enhancement  of  

punishment. We also hold that by his actions and conduct the appellant has established himself as a  

person who needs to be kept away from the portals of the court for a longer time. The notice would  

therefore require him to show-cause why the punishment awarded to him should not be enhanced as  

provided under section 12 of the Contempt of Courts Act. He would additionally show-cause why he  

should not be debarred from appearing in courts for a longer period. The second part of the notice  

would also cure the defect in the High Court order in debarring the appellant from appearing in  

courts without giving any specific notice in that regard as held in the earlier part of the judgment.

166. We have so far been considering the two appeals proper. We now proceed to examine  

some other important issues arising from the case.

THE ROLE OF NDTV:

167. NDTV came under heavy attack from practically all sides for carrying out the stings and  

airing  the  programme  based  on  it.  On  behalf  of  RK  Anand  the  sting  programme  was  called  

malicious and motivated, aimed at defaming him personally. Mr. P P Rao appearing for IU Khan  

questioned the propriety of the stings and the repeated telecast of the sting programme concerning a  

pending trial  and involving a  court  witness.  Mr.  Rao submitted  that  before taking up the sting  

operations, fraught with highly sinister implications, the TV channel should have informed the trial  

court and obtained its permission. If for any reason it was not possible to inform the trial judge then  

permission for the stings should have been taken from the Chief Justice of the Delhi High Court.  

Also,  it  was  the  duty of  that  TV channel  to  place  the  sting  materials  before  the  court  before  

telecasting any programme on that basis.  

168. Mr. Gopal Subramanium submitted that this case raised the important issue regarding the  

nature and extent of the right of the media to deal with a pending trial. He submitted that a sting

operation was, by its nature, based on deception and hence, overriding public interest alone might  

justify its publication/telecast. Further, since the operation was based on deception the onus would  

be heavy on the person behind the sting and publication/telecast of the sting materials to establish  

his/her  bona fide, apart from the genuineness and truthfulness of the sting materials. In regard to  

sting operations bona fide could not be assumed. In this case, therefore, it was the duty of the High  

Court to inquire into and satisfy itself whether the sting operation was a genuine exercise by the TV  

channel to expose the attempted subversion of the trial. He further submitted that the affidavit of  

Poonam Agarwal was not sufficient to arrive at the conclusion that the action of the TV channel was  

genuine and bona fide and the matter required further enquiry. Mr. Subramanium further submitted  

that the act of publication/telecast and the contents of publication/telecast, though interlinked, were  

still needed to be viewed separately and whether or not a publication or telecast was justified would,  

to  a  large  extent,  depend,  as  much  on  the  contents  of  the  publication/telecast,  as  the  act  of  

publication/telecast itself. He further submitted that, in the facts of the case, the sting operation was  

in public interest and there was nothing objectionable there. But the same cannot be said of the  

telecast. The date on which the programme was telecast (May 30, 2007- when Kulkarni’s cross-

examination was still pending), the “slant” given to the episode by the NDTV presenters, and the  

way opinions were solicited from eminent lawyers, left much to be  explained by the TV channel.  

Learned Counsel submitted that a question may arise whether NDTV was justified in telecasting the  

programme based on the sting when they were not in a position to vouch for Kulkarni’s character.  

He, however, submitted that the TV channel must at least be given credit for transparency – it made  

a public disclosure, in the same telecast, that (a) Kulkarni had withdrawn his consent for the telecast;  

(b) it did not know if any money had in fact changed hands, and (c) it could not vouch for Kulkarni’s  

character. It also gave the contemnors a chance to state their version of the story. In conclusion Mr  

Subramanium submitted that it would be difficult to conclude that NDTV was guilty of contempt or  

of conducting a media trial although the “slant in the telecast was regrettable overreach.”

169. The other amicus Mr. N. Rao was more severe in his criticism of the telecast of the sting  

programme by NDTV. He maintained that NDTV was equally guilty of contempt of court, though

under a different provision of law. Mr. Rao submitted that the programme was an instance of, what  

is commonly called, ‘trial by media’ and it was telecast while the criminal trial was going on. He  

submitted that in our system of law there was no place for trial by media in a sub-judice matter. Mr.  

Rao submitted that freedom of speech and expression, subject of course to reasonable restrictions,  

was indeed one of the most important rights guaranteed by the Constitution of India. But the press or  

the electronic media did not enjoy any right(s) superior to an individual citizen. Further, the right of  

free and fair trial was of far greater importance and in case of any conflict between free speech and  

fair trial the latter must always get precedence. Mr. Rao submitted that though the law normally did  

not permit any pre-censorship of a media report concerning an ongoing criminal trial or sub-judice  

matter, any person publishing the report in contravention of the provisions of law would certainly  

make himself liable to the proceeding of contempt. Mr. Rao further submitted that the immunity  

provided under section 3 (3) of the Contempt of Courts Act was not available to the TV channel in  

terms of proviso (ii) Explanation (B) to sub-section (3) and thus the telecast of the sting programme  

by NDTV clearly fell in the prohibited zone under the Act.  He further submitted that in such an  

event, a plea of ‘larger public good’ was not a legal defence. In support of his submission he cited  

several decisions of this court in (i) Saibal Kumar Gupta and Others vs. B.K.Sen and Another., 1961  

3  SCR  460  (473)  (ii)  In  Re:  P.C.Sen,  1969  2  SCR  649  (651,653,654,658)  (iii)  Reliance  

Petrochemcials Ltd. vs. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd., (1988) 4 SCC  

592 pr. 32,34,95,38 (iv) M. P. Lohia vs. State of W. B., (2005) 2 SCC 686 pr. 10.

170. Mr. Salve learned Senior Advocate appearing for NDTV, on the other hand, defended the  

telecast of the programme. Mr. Salve submitted that commenting on or exposing something foul  

concerning proceedings pending in courts would not constitute contempt if the court is satisfied that  

the report/comment is substantially accurate, it is bona fide and it is in public interest. He referred to  

the new section 13 in the Contempt of Courts Act substituted with effect from March 17, 2006  

which is as under:

“13. Notwithstanding anything contained in any law for the time being in force,-  

(a) no court shall impose a sentence under this Act for a contempt of court unless it  is

satisfied that the contempt is of such a nature that it substantially interferes, or tends  substantially to interfere with the due course of justice;

(b) the court may permit, in any proceeding for contempt of court, justification by  truth as a valid defence if it is satisfied that it is in public interest and the request  for invoking the said defence is bona fide.”

(emphasis added)  

171. Mr. Salve submitted that in a situation of this kind two competing public interests are  

likely to  arise;  one,  purity of  trial  and the  other  public  reporting of  something concerning  the  

conduct of a trial (that may even have the tendency to impinge on the proceedings) where the trial,  

for any reason, can be considered as a matter of public concern. With regard to the case in hand Mr.  

Salve submitted that in the sting programmes there was nothing to influence the outcome of the  

BMW trial. But even if the telecast had any potential to influence the trial proceedings that risk was  

far outweighed by the public good served by the programme. He further submitted that in a case  

where two important considerations arise, vying with each other, the court is the final arbiter to  

judge whether or not the publication or telecast is in larger public interest;  how far, if at all,  it  

interferes or tends to interfere with or obstructs or tends to obstruct the course of justice and on  

which side the balance tilts. In support of his submission he relied upon a decision of the House of  

Lords in Re Lonrho plc and others, [1989] 2 All ER 1100 paragraphs 7.2 and 7.3 at 1116.  

172. We  have  already  dealt  with  the  allegations  made  on  behalf  of  RK  Anand  while  

considering his appeal earlier in this judgment and we find no substance in those allegations.

Reporting of pending trial:

173. We are also unable to agree with the submission made by Mr. P. P. Rao that the TV  

channel should have carried out the stings only after obtaining the permission of the trial court or the  

Chief Justice of the Delhi High Court and should have submitted the sting materials to the court  

before its telecast. Such a course would not be an exercise in journalism but in that case the media  

would be acting as some sort of special vigilance agency for the court. On little consideration the  

idea appears to be quite repugnant both from the points of view of the court and the media. It would  

be a sad day for the court to employ the media for setting its own house in order; and media too

would certainly not relish the role of being the snoopers for the court. Moreover, to insist that a  

report concerning a pending trial may be published or a sting operation concerning a trial may be  

done  only subject  to  the  prior  consent  and  permission  of  the  court  would  tantamount  to  pre-

censorship of reporting of court proceedings. And this would be plainly an infraction of the media’s  

right of freedom of speech and expression guaranteed under Article 19(1) of the Constitution. This  

is,  however, not to say that media is free to publish any kind of report  concerning a  sub-judice  

matter or to do a sting on some matter concerning a pending trial in any manner they please. The  

legal  parameter within  which a report  or comment  on a  sub-judice matter  can be made is  well  

defined and any action in breach of  the legal  bounds would invite  consequences.  Compared to  

normal reporting, a sting operation is an incalculably more risky and dangerous thing to do. A sting  

is based on deception and, therefore, it would attract the legal restrictions with far greater stringency  

and any infraction would invite more severe punishment.

Sting programme whether trial by media??  

174. The submissions of Mr. N. Rao are based on two premises: one, the sting programme  

telecast by NDTV was of the genre, ‘trial by media’ and two, the programme interfered or tended to  

interfere with or obstructed or tended to obstruct the proceedings of the BMW trial that was going  

on at the time of the telecast. If the two premises are correct then the rest of the submissions would  

logically follow. But are the two premises correct?  What is trial by media?  The expression ‘trial by  

media’ is defined to mean:  

“the impact of television and newspaper coverage on a person’s reputation by creating a  widespread perception of guilt  regardless of any verdict in a court  of law. During high  publicity court cases, the media are often accused of provoking an atmosphere of public  hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means  that, regardless of the result of the trial, in public perception the accused is already held  guilty and would not be able to live the rest of their life without intense public scrutiny.”  

175. In light of the above it can hardly be said that the sting programme telecast by NDTV  

was  a  media  trial.  Leaving  aside  some  stray  remarks  or  comments  by  the  anchors  or  the

interviewees, the programme showed some people trying to subvert the BMW trial and the state of  

the  criminal  administration  of  justice  in  the  country (as  perceived by the  TV channel  and the  

interviewees). There was nothing in the programme to suggest that the accused in the BMW case  

were guilty or innocent. The programme was not about the accused but it was mainly about two  

lawyers representing the two sides and one of the witnesses in the case. It indeed made serious  

allegations  against  the  two lawyers.  The allegations,  insofar  as  RK Anand is  concerned,  stand  

established after strict scrutiny by the High Court and this Court. Insofar as IU Khan is concerned,  

though this Court held that his conduct did not constitute criminal contempt of court, nonetheless  

allegations against  him too are established to the extent  that  his  conduct  has been found to be  

inappropriate for a Special Prosecutor. In regard to the witness the comments and remarks made in  

the telecast were never subject to a judicial scrutiny but those too are broadly in conformity with the  

materials on the court’s record. We are thus clearly of the view that the sting programme telecast by  

NDTV cannot be described as a piece of trial by media.

Stings & telecast of sting programmes not constituting criminal contempt:

176. Coming now to section 3 of the Contempt of Courts Act we are unable to appreciate Mr.  

Rao’s submission that NDTV did not have the immunity under sub-section (3) of section 3 as the  

telecast was hit by proviso (ii) Explanation (B) to that sub section. Section 3 of the Act insofar as  

relevant is as under:

“3. Innocent publication and distribution of matter not contempt.- (1) A person  shall not be guilty of contempt of court on the ground that he has published (whether by  words,  spoken or  written,  or  by signs,  or  by visible  representations,  or  otherwise)  any  matter  which interferes or tends to interfere with,  or obstructs or tends to obstruct,  the  course of justice in connection with any civil or criminal proceeding pending at that time of  publication, if at that time he had no reasonable grounds for believing that the proceeding  was pending.  

(2) xxx

(3) A person shall not be guilty of contempt of court on the ground that he has distributed a  publication containing any such matter as is mentioned in sub-section (1), if at the time of  distribution he had no reasonable grounds for believing that it contained or was likely to  contain any such matter as aforesaid: Provided that this sub-section shall not apply in respect of the distribution of-  

(i) any publication which is a book or paper printed or published otherwise than in conformity

with the rules contained in section 3 of the Press and Registration of Books Act, 1867 (25  of 1867);

(ii)  any publication which is a newspaper published otherwise than in conformity with the  rules contained in section 5 of the said Act.  

Explanantion.- For the purposes of this section, a judicial proceeding-   (a) is said to be pending-  

(A) xxx (B) in the case of a criminal proceeding under the Code of Criminal Procedure, 1898 ( 5 of  

1898), or any other law-

(i) where it relates to the commission of an offence, when the charge-sheet or challan  is filed, or when the court issues summons or warrant, as the case may be, against  the accused, and  

(ii) in  any other  case,  when the  court  takes  cognizance of  the  matter  to  which the  proceeding relates, and xxx

(b)  xxxx”

177. Section 5 provides that a fair criticism of a judicial act concerning any case which has  

been heard and finally decided would not constitute contempt.

178. Sub-section  (1)  of  section  3  provides  immunity to  a  publisher  of  any matter  which  

interferes or tends to interfere with, or obstructs or tends to obstruct the course of justice in any civil  

or criminal proceeding if he reasonably believed that there was no proceeding pending. A sub-

section (3) deal with distribution of the publication as mentioned in sub-section (1) and provides  

immunity to the distributor if he reasonably believed that the publication did not contain any matter  

which interfered or tended to interfere with, or obstructed or tended to obstruct the course of justice  

in any civil or criminal proceeding. The immunity provided under sub-section (3) is subject to the  

exceptions  as  stated  in  the  proviso  and  explanations  to  the  sub-section.  We  fail  to  see  any  

application of section 3(3) of the Contempt of Courts Act in the facts of this case. In this case there  

is no distribution of any publication made under sub-section (1). Hence, neither sub-section (3) nor  

its proviso or explanation is attracted. NDTV did the sting, prepared a programme on the basis of  

the sting materials and telecast it at a time when it fully knew that the BMW trial was going on.  

Hence, if the programme is held to be a matter which interfered or tended to interfere with, or

obstructed or tended to obstruct the due course of  the BMW case then the immunity under sub-

section (1) will not be available to it and the telecast would clearly constitute criminal contempt  

within the meaning of section 2 (c) (ii) & (iii) of the Act. But can the programme be accused of  

interfering or tending to interfere with, or obstructing or tending to obstruct the due course of the  

BMW case. Whichever way we look at the programme we are not able to come to that conclusion.  

The programme may have any other faults or weaknesses but it certainly did not interfere with or  

obstruct the due course of the BMW trial. The programme telecast by NDTV showed to the people  

(the courts not excluded) that a conspiracy was afoot to undermine the BMW trial. What was shown  

was proved to be substantially true and accurate.  The programme was thus clearly intended to  

prevent the attempt to interfere with or obstruct the due course of the BMW trial.

STINGS  &  TELECAST  OF  STING  PROGRAMMES  SERVED  IMPORTANT  PUBLIC  

CAUSE  

179. Looking at the matter from a slightly different angle we ask the simple question, what  

would have been in greater public interest; to allow the attempt to suborn a witness, with the object  

to undermine a criminal trial,   lie quietly behind the veil of secrecy or to bring out the mischief in  

full public gaze? To our mind the answer is obvious. The sting telecast by NDTV was indeed in  

larger public interest and it served an important public cause.

180. We have held that the sting programme telecast by NDTV in no way interfered with or  

obstructed the due course of any judicial proceeding, rather it was intended to prevent the attempt to  

interfere with or obstruct the due course of law in the BMW trial. We have also held that the sting  

programme telecast by NDTV served an important public cause. In view of the twin findings we  

need not go into the larger question canvassed by Mr Salve that even if the programme marginally  

tended to influence the proceedings in the BMW trial the larger public interest served by it was so  

important that the little risk should not be allowed to stand in its way.

Excesses in the telecast:

181. We  have  unequivocally  upheld  the  basic  legitimacy  of  the  stings  and  the  sting  

programmes telecast by NDTV. But at the same time we must also point out the deficiencies (or

rather the excesses) in the telecast.  Mr. Subramanium spoke about the ‘slant’ in the telecast as  

‘regrettable  overreach’.  But  we  find  many instances  in  the  programme  that  cannot  be  simply  

described as ‘slants’. There are a number of statements and remarks which are actually incorrect  

and misleading. In the first sting programme telecast on May 30, 2007 at 8.00 pm the anchor made  

the opening remarks as under:

“Good Evening,…. an NDTV expose, on how the legal system may have been subverted in  the high profile BMW case. In 1999 six people were run over allegedly by a BMW driven  by Sanjeev Nanda a young, rich industrialist but 8 years later every witness except one has  turned hostile. Tonight NDTV investigates did the prosecution, the defence and the only  witness not turned hostile Sunil Kulkarni collude…”

182. The anchor’s remarks were apparently from a prepared text since the same remarks were  

repeated word by word by another anchor as introduction to the second telecast on the same day at  

9:00 pm.

183. Further, in the 9 o’clock telecast after some brief introductory remarks, clips from the  

sting recordings are shown for several minutes and a commentator from the background (probably  

Poonam Agarwal) introduces the main characters in the BMW case. Kulkarni is introduced by the  

commentator in the following words:

“Sunil Kulkarni, a passerby, who allegedly saw the accident but inexplicably dropped as  witness by prosecution. They claim he had been bought by the Nandas. This despite the fact  that he is the only witness who still says the accident was caused by a ‘black car’ with two  men in it one of them called Sanjeev.”

184. [This statement does not find place in the manuscript of the telecast furnished to the  

court and can be found only by carefully watching the CD of the telecast submitted before the court.  

We are again left with the feeling that NDTV did not submit full and complete materials before the  

court and we are surprised that the High Court did not find it amiss]

185. In the first statement Kulkarni is twice described as the only witness in the BMW case  

who after eight years had not turned hostile. The statement is fallacious and misleading. Kulkarni  

was not being examined in the court as prosecution witness and, therefore, there was no question of  

his  being declared ‘hostile’  by the prosecution.  He was being examined as  a Court  witnesses.  

Nevertheless, the prosecution was cross-examining him in detail in course of which he was trying

to sabotage the prosecution case.

186. The second statement is equally, if not more, fallacious. In the second statement it is said  

that  Kulkarni  was  ‘inexplicably’ dropped  as  a  prosecution  witness.  We  have  seen  earlier  that  

Kulkarni  was  dropped  as  a  prosecution  witness  for  good  reasons  summed  up  in  the  Joint  

Commissioner’s report to the trial court and there was nothing ‘inexplicable’ about it. In the second  

statement it is further suggested that the prosecution’s claim that Kulkarni was bought over by the  

accused was untrue because he was the only witness who still said that the accident was caused by a  

black car with two men in it, one of them being called Sanjeev. It is true that in his deposition  

before the court Kulkarni said that the accident was caused by a black car but he resiled from his  

earlier statements made before the police and the magistrate in a more subtle and clever way than  

the other two prosecution witnesses, namely, Hari Shankar Yadav and Manoj Malik.  Departing  

from his earlier statements he said in the court that he heard one of the two occupants of the car  

addressing the other as ‘Sanch or sanz’ (and not as Sanjeev). Further, though admitting that Sanjeev  

Nanda was one of the occupants of the car, he positively denied that he got down from the driving  

seat of the car and placed someone else on the driving seat of the car causing the accident. Thus the  

damage  to  the  prosecution  case  that  he  tried  to  cause  was  far  more  serious  than  any  other  

prosecution witness. It is not that NDTV did not know these facts. NDTV was covering the BMW  

trial very closely since its beginning and was aware of all the developments taking place in the case.  

Then why did it introduce the programme in this way, running down the prosecution and presenting  

Kulkarni as the only person standing upright while everyone else had fallen down? The answer is  

not far to seek. One can not start a highly sensational programme by saying that it was prepared  

with the active help of someone whose own credibility is extremely suspect. The opening remarks  

were thus designed to catch the viewer and to hold his/her attention, but truth, for the moment at  

least was relegated to the sidelines. It is indeed true that later on in the programme facts concerning  

Kulkarni were stated correctly and he was presented in a more balanced way and Mr. Subramanium  

wanted to give NDTV credit points for that. But the impact and value of the opening remarks in a  

TV programme is quite different from what comes later on. The later corrections were for the sake

of the record while the introductory remarks had their own value.   

187. Further, on the basis of the sting recordings NDTV might have justifiably said that IU  

Khan, the Special Prosecutor appeared to be colluding with the defence (though this court found  

that there was no conclusive evidence to come to such a finding). But there was no material before  

NDTV to make such allegation against the prosecution as a whole and thus to run down the other  

agencies and people connected with the prosecution. There are other instances also of wrong and  

inappropriate choice of words and expressions but we need not go any further in the matter.

188. Another sad feature is its stridency. It is understandable that the programme should have  

started on a highly sensational note because what was about to be shown was really quite shocking.  

But the programme never regained poise and it became more and more shrill. All the interviewees,  

highly eminent people, expressed their shock and dismay over the state of the legal system in the  

country  and  the  way  the  BMW  trial  was  proceeding.  But  as  the  interview  progressed,  they  

somewhat tended to lose their self restraint and did not pause to ponder that they were speaking  

about a sub-judice matter and a trial in which the testimony of a court witness was not even over.  

We are left with the feeling that some of the speakers allowed their passions, roused by witnessing  

the shocking scenes on the TV screen, to get better of their judgment and made certain very general  

and broad remarks about the country’s legal system that they might not have made if speaking in a  

more dispassionate and objective circumstances. Unfortunately, not a single constructive suggestion  

came from anyone as to how to revamp the administration of criminal justice. The programme  

began on negative note and remained so till the very end.

Conduct of NDTV in proceeding before High Court:

189. In the earlier part of the judgment some of the glaring lapses committed by NDTV in the  

proceeding before the High Court are already recounted. Apart from those one or two other issues  

need to be mentioned here that failed to catch the attention of the High Court. It seems that at the  

time the sting operations were carried out people were actually apprehensive of something of that  

kind. Vikas Arora, Advocate had stated in his complaint (dated April 19, 2007) about receiving  

such a  threat  from Poonam Agarwal.  NDTV in its  reply dated April  26,  2007 had denied the

allegations in the complaint, at the same time, declaring its resolve to make continuous efforts to  

unravel the truth. At the same time Poonam Agarwal was planning the stings in her meetings with  

Kulkarni. As a matter of fact, the first sting was carried out on IU Khan just two days after giving  

reply to Arora’s complaint. Further, from the transcript of the first sting carried out on RK Anand  

on May 6, 2007 it  appears that he too had expressed some apprehension of this kind to which  

Kulkarni responded by saying that he did not have money enough to eat how could he do any  

recording of anyone. (It is difficult to miss the irony that the exchange took place while RK Anand  

was actually being subjected to the sting). It thus appears that at that time, for some reason, the  

smell of sting was in the air. In those circumstances we find it strange that in the affidavits filed on  

behalf of NDTV there should be absolutely no reference to Vikas Arora’s complaint. In the earlier  

part of the judgment we have examined the affidavits filed by Poonam Agarwal and found that she  

states about all the aspects of the sting operations in great detail. But surprisingly those affidavits  

do  not  even  refer  to,  much  less  deal  with  the  complaint  of  Vikas  Arora  despite  the  striking  

similarity between the threat that was allegedly given to him and his senior IU Khan and the way  

the sting operation was actually carried out on IU Khan.

190. There is another loose end in the whole matter. Kulkarni’s sting meeting with IU Khan  

had ended with fixing up another meeting for the following Sunday at the latter’s residence. (It was  

the setting up of this meeting that is primarily the basis for holding him guilty of misconduct as the  

Special  Public  Prosecutor).  One should have thought that  this  meeting would surely take place  

because it provided a far better opportunity for the sting. With ‘good Scotch whisky’ flowing it was  

likely that the planners of the stings would get more substantial evidences of what they suspected.  

But we are not told anything about this meeting: whether it took place or not? If it took place what  

transpired in it and whether any sting recording was done? If it did not take place what was the  

reason for not keeping the appointment and giving up such a good opportunity. Here it may be  

noted that Kulkarni also in his affidavit filed before the High Court on August 6, 2007 stated that as  

arranged between them he again met IU Khan in the evening but the sting recording of that meeting  

was withheld by NDTV because that falsified their story. Kulkarni,  as was his wont,  might be

telling lies but that was an additional reason for NDTV to clarify the issue regarding the second  

meeting between the two.  

191. The next meeting between Kulkarni and IU Khan that was fixed up in the sting meeting  

on April 28, 2007 might or might not have taken place but there can be little doubt that they met  

again between April 28, 2007 and May 31, 2007 (the day following the first sting telecast) when  

Kulkarni gave IU Khan the ‘certificate’ that he had accepted the summons on his advice (which  

was submitted by IU Khan before the trial court when he withdrew from the case).  

192. The affidavits filed on behalf of NDTV are completely silent on these aspects.  

193. These omissions  (and some similar others) on the part  of NDTV leave one with the  

feeling that it was not sharing all the facts within its knowledge with the court. The disclosures  

before the Court do not appear to be completely open, full and frank. It would tell the court only so  

much as was necessary to secure the conviction of the proceedees-wrong doers. There were some  

things that it would rather hold back from the court. We would have appreciated the TV channel to  

make a fuller disclosure before the High Court of all the facts within its knowledge.

194. Having said all this we would say, in the end, that for all its faults the stings and the  

telecast of the sting programme by NDTV rendered valuable service to the important public cause  

to protect and salvage the purity of the course of justice. We appreciate the professional initiative  

and  courage  shown  by  the  young  reporter  Poonam  Agarwal  and  we  are  impressed  by  the  

painstaking  investigation  undertaken  by  NDTV  to  uncover  the  Shimla  connection  between  

Kulkarni and RK Anand.  

195. We have recounted above the acts of omission and commission by NDTV before the  

High Court and in the telecast of the sting programme in the hope that the observations will help  

NDTV and other TV channels in their future operations and programmes. We are conscious that the  

privately run TV channels in this country are very young, no more than eighteen or twenty years  

old. We also find that like almost every other sphere of human activity in the country the electronic  

news media has a very broad spectrum ranging from very good to unspeakably bad.  

196. The better news channels in the country (NDTV being one of them) are second to none

in the world in matters of coverage of news, impartiality and objectivity in reporting, reach to the  

audience and capacity to influence public opinion and are actually better than many foreign TV  

channels. But that is not to say that they are totally free from biases and prejudices or they do not  

commit mistakes or gaffes or they some times do not tend to trivialise highly serious issues or that  

there is  nothing wanting in their social  content  and orientation or that  they maintain  the same  

standards in all their programmes. In quest of excellence they have still a long way to go.

197. A private TV channel which is also a vast business venture has the inherent dilemma to  

reconcile its business interests with the higher standards of professionalism/demands of profession.  

The two may not always converge and then the TV channel would find its professional options  

getting limited as a result of conflict of priorities. The media trips mostly on TRPs (television rating  

points),  when  commercial  considerations  assume  dominance  over  higher  standards  of  

professionalism.

198. It is not our intent here to lay down any reformist agenda for the media. Any attempt to  

control and regulate the media from outside is likely to cause more harm than good. The norms to  

regulate the media and to raise its professional standards must come from inside.  

ROLE OF THE LAWYER  

199. The other important issue thrown up by this case and that causes us both grave concern  

and dismay is the decline of ethical and professional standards among lawyers. The conduct of the  

two appellants (one convicted of committing criminal contempt of court and the other found guilty  

of misconduct as Special Prosecutor), both of them lawyers of long standing, and designated Senior  

Advocates,  should  not  be  seen  in  isolation.  The  bitter  truth  is  that  the  facts  of  the  case  are  

manifestation of the general erosion of the professional values among lawyers at all levels. We find  

today lawyers indulging in practices that would have appalled their predecessors in the profession  

barely two or three decades ago. Leaving aside the many kinds of unethical practices indulged in by  

a section of lawyers we find that even some highly successful lawyers seem to live by their own  

rules of conduct. We have viewed with disbelief Senior Advocates freely taking part in TV debates  

or giving interviews to a TV reporter/anchor of the show on issues that are directly the subject

matter of cases pending before the court and in which they are appearing for one of the sides or  

taking up the brief of one of the sides soon after the TV show. Such conduct reminds us of the  

fictional barrister Rumpole, ‘the Old Hack of Bailey’, who self deprecatingly described himself as  

an ‘old taxi plying for hire’. He at least was not bereft of professional values. When a young and  

enthusiastic  journalist  invited  him  to  a  drink  of  Dom  Perignon,  vastly superior  and  far  more  

expensive than his usual ‘plonk’, ‘Château Fleet Street’, he joined him with alacrity but when in the  

course of the drink the journalist offered him a large sum of money for giving him a story on the  

case;  ‘why he was defending the most  hated woman in England’,  Rumpole ended the meeting  

simply saying  

“In the circumstance I think it is best if I pay for the Dom Perignon”  

200. We express  our  concern  on  the  falling  professional  norms  among the  lawyers  with  

considerable  pain  because  we  strongly feel  that  unless  the  trend  is  immediately  arrested  and  

reversed, it will have very deleterious consequences for administration of justice in the country. No  

judicial system in a democratic society can work satisfactorily unless it is supported by a bar that  

enjoys the unqualified trust and confidence of the people, that share the aspirations, hopes and the  

ideals of the people and whose members are monetarily accessible and affordable to the people.

201. We are glad to note that Mr. Gopal Subramanium, the amicus fully shared our concern  

and realised the gravity of the issue. In course of his submissions he eloquently addressed us on the  

elevated position enjoyed by a lawyer in our system of justice and the responsibilities cast upon him  

in consequence. His Written Submissions begin with this issue and he quotes extensively form the  

address of Shri M C Setalvad at the Diamond Jubilee Celebrations of the Banglore Bar Association,  

1961, and from the decisions of this Court in Pritam Pal vs. High court of Madhya Pradesh, 1993  

Supp (1) SCC 529 (observations of Ratnavel Pandian J.) and Sanjeev Datta, In Re, (1995) 3 SCC  

619 (observations of Sawant J. at pp 634-635, para 20).

202. We respectfully endorse  the views and sentiments  expressed by Mr.  M.C.  Setalvad,  

Pandian J. and Sawant J.  

203. Here we must also observe that the Bar Council of India and the Bar Councils of the

different states cannot escape their responsibility in this regard. Indeed the Bar council(s) have very  

positively taken up a number of important issues concerning the administration of justice in the  

country. It has consistently fought to safeguard the interests of lawyers and it has done a lot of good  

work for their welfare. But on the issue of maintaining high professional standards and enforcing  

discipline among lawyers its performance hardly matches its achievements in other areas. It has not  

shown much concern even to see that lawyers should observe the statutory norms prescribed by the  

Council itself. We hope and trust that the Council will at least now sit up and pay proper attention  

to the restoration of the high professional standards among lawyers worthy of their position in the  

judicial system and in the society.  

This takes us to the last leg of this matter.

THE LARGER ISSUE: BMW TRIAL GETTING OUT OF HAND:

204. Before laying down the records of the case we must also advert to another issue of great  

importance that causes grave concern to this Court. At the root of this odious affair is the way the  

BMW trial was allowed to be constantly interfered with till  it  almost became directionless. We  

have noted Kulkarni’s conduct  in course of investigation and at the commencement of the trial; the  

fight that broke out in the court premises between some policemen and a section of lawyers over his  

control and custody; the manner in which Hari Shankar Yadav, a key prosecution witness turned  

hostile in court; the curious way in which Manoj Malik, another key witness for the prosecution  

appeared before the court and overriding the prosecution’s protest, was allowed to depose only to  

resile from his earlier statement. All this and several other similar developments calculated to derail  

the trial would not have escaped the notice of the Chief Justice or the judges of the Court. But there  

is nothing to show that the High Court, as an institution, as a body took any step to thwart the  

nefarious activities aimed at undermining the trial and to ensure that it proceeded on the proper  

course. As a result, everyone seemed to feel free to try to subvert the trial in any way they pleased.

205. We must add here that this indifferent and passive attitude is not confined to the BMW  

trial or to the Delhi High Court alone. It is shared in greater or lesser degrees by many other High  

Courts. From experience in Bihar, the author of these lines can say that every now and then one

would come across reports of investigation deliberately botched up or of the trial being hijacked by  

some powerful  and  influential  accused,  either  by buying  over  or  intimidating  witnesses  or  by  

creating insurmountable impediments for the trial court and not allowing the trial to proceed. But  

unfortunately the reports would seldom, if ever, be taken note of by the collective consciousness of  

the Court. The High Court would continue to carry on its business as if everything under it was  

proceeding normally and smoothly. The trial would fail because it was not protected from external  

interferences. Every trial that fails due to external interference is a tragedy for the victim(s) of the  

crime. More importantly, every frustrated trial defies and mocks the society based on the rule of  

law. Every subverted trial leaves a scar on the criminal justice system. Repeated scars make the  

system unrecognisable and it then loses the trust and confidence of the people. Every failed trial is  

also, in a manner of speaking, a negative comment on the State’s High Court that is entrusted with  

the responsibility of superintendence, supervision and control of the lower courts. It is, therefore,  

high time for the High Courts to assume a more pro-active role in such matters. A step in time by  

the  High Court  can save  a  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 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 the Constitution that vests the  

High Court  with  the  power  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.  

206. In light of the discussions made above we pass the following orders and directions.

1. The appeal filed by IU Khan is allowed and his conviction for criminal contempt is set  

aside. The period of four month’s prohibition from appearing in Delhi High Court and the  

courts sub-ordinate to it is already over. The punishment of fine given to him by the High  

Court is set aside. The Full Court of the Delhi High Court may still consider whether or not  

to  continue  the  honour  of  Senior  Advocate  conferred  on  him  in  light  of  the  findings  

recorded in this judgment.

2. The appeal of RK Anand is dismissed subject to the notice of enhancement of punishment  

issued to him as indicated in paragraph 165 of the judgment. He is allowed eight weeks time  

from the date of service of notice for filing his show-cause.

3. Those of the High Courts which have so far not framed any rules under section 34 of the  

Advocates  Act,  shall  frame  appropriate  rules  without  any  further  delay as  directed  in  

paragraph 147 of the judgment.

4. Put up the appeal of RK Anand after the show-cause is filed.

…………………………J.                                                 [B.N. AGRAWAL]

………………………………J.                                               [G.S. SINGHVI]  

……………………………………J.                                             [AFTAB ALAM]

New Delhi, July 29,  2009.