Court No. - 44
Case :- CONTEMPT APPLICATION (CRIMINAL) No. - 17 of 2010
Petitioner :- Ravi Kiran Jain Senior Advocate
Respondent :- Vinod Mehta Editor-In-Chief Outlook & Others
Petitioner Counsel :- R.K. Jain (In Person)
Hon'ble Imtiyaz Murtaza,J.
Hon'ble Naheed Ara Moonis,J.
The present petition has been preferred by the petitioner who is a
Senior Advocate practising in this High Court praying for taking
suo motu cognizance for punishing the respondents under the
Contempt of Courts Act 1971 for their acts of scandalizing the
Court by making reckless allegations against the Chief Justice of
this Court, by imputing motives to him of having passed
administrative orders for favouring Smt. Mayawati, Chief Minister
of U.P. and making other pejorative allegations against the
judiciary and in this manner they have lowered the authority of this
Court, and also interfered with the due course of judicial
proceedings.
The matter has its genesis in an article which appeared in the 4
th
October, 2010 issue of the weekly Magazine "Out Look" which has
been published for the week of Sept 28Oct 04, 2010. In this article
the Chief Justice of this Court F.I. Rebello has been bracketed with
certain High Court Judges, who have been aspersed upon to have
detracted from the judicial propriety. The essential allegations
which are said to be contemptuous, ascribe motives to the Chief
Justice for taking away the case of sanction for prosecution from
the Bench of Justice Pradeep Kant and Justice Shabihul Hasnain
in the Taj Corridor matter at the fag end of the hearing of the case
after his meeting with the Chief Minister Sushri Mayawati, for
conferring an advantage on her. There was no specific order
taking away the case, and the administrative orders bifurcating
Criminal PILs from Civil PILs, and holding that PILs seeking
prosecution sanctions would be cognizable by the criminal PIL
Bench which resulted in the case being taken away from the
Bench, was regarded as a colourable exercise of power by Chief
Justice Rebello.
The petitioner has also identified certain sentences from the Article
which it is stated are derogatory to the judiciary and the Chief
Justice in particular which are quoted below.
In para 5 it is mentioned that the cover page of the issue contains
the title "The Six Black Sheep", relating to 6 past Chief Justices of
India who have been described as black sheep. This cover story
has been correlated with the present article.
In para 7, reference has been made to a Heading at page 38 "How
to Lower The Bar" with the subheading "The State High Courts
are rife with cases of abuse of law and corruption".
The offending/contemptuous part of the article has been quoted in
para 11 which further being germane to the controversy involved,
is excerpted below.
"The rumour decibels in the corridors of our high courts have steadily gone up in
the past few years. The issue, of course, is the moral and monetary corruption of
those that sit in judgment in these highest courts. Proof may be a bit elusive but
reputations have hit rock bottom. Indeed, there is no dearth of anecdotal tales in
the bar councils on how some judges routinely dole out favours. The latest
controversy in this long list involves the chief justice of the Allahabad HC, Justice
F.I. Rebello."
In the Article, photographs of four Judges have been published at
page nos 3839 with brief resume of alleged anecdotes denigrating
them. The first Judge mentioned is Justice Soumitra Sen, the
second is Justice Nirmal Yadav, the third Judge mentioned is
Chief Justice F.I Rebello and the fourth Judge is Justice Mehtab
Singh Gill. Here we are concerned with certain general allegations
which are said to be contemptuous in nature, against the third
Judge i.e Chief Justice F.I Rebello. The brief anecdote related
about him, mentioned below the photograph reads as under:
"Passed order favouring Mayawati in the Taj Corridor case days after he met her,
taking control of the case away from the Judges who had issued notice against
the CM."
The present petition on account of it being labelled as a contempt
application was listed before the appropriate Bench dealing with
contempt matters on 30.9.2010, but one of the judges in the
Division Bench recused herself and the matter has been ordered
to be laid/listed before the Bench presided over by one of us
(Imtiyaz Murtaza, J) vide order of the Hon. Senior Judge dated
30.9.2010.
On the matter being called out, the petitioner restricted his
arguments to prefatory submissions that the Court should initiate
suo motu action in the matter in exercise of powers conferred
under section 15(1) of the Contempt of Courts Act, 1971. In this
connection it was pointed out that no rules have yet been framed
by the High Court in compliance of the directions of the Apex Court
in Bal Thackrey v. Harish Pimpalkhute (AIR 2005 SC 396). The
relevant portion of the judgement on which emphasis has been
laid by the learned counsel reads as follows:
"25. Before parting, it is necessary to direct framing of necessary rule or practice
direction by the High Courts in terms of Duda's case. Accordingly, we direct
Registrar General to send a copy of this Judgment to the Registrar Generals of
the High Courts so that wherever rule and/or practice direction on the line
suggested in Duda's case has not been framed, the High Courts may now frame
the same at their earliest convenience."
We are informed by the Office that the matter was referred to the
relevant Committee and it is still under consideration there. Be that
as it may, it is worth noticing that the direction was issued as far
back as in the year 2005.
Before proceeding further we must first take up the question
whether we should initiate contempt proceedings against the
respondents suo motu. or whether we should treat the petition as a
contempt petition at the behest of the petitioner.
It is clear that the present contempt was initiated without the
consent of the Advocate General. However, a question which
arises, is whether even without the consent of the Advocate
General, can this Court initiate contempt proceedings on its own
motion, if it is satisfied that the allegations referred to in the petition
brings the case within the relevant clauses defining criminal
contempt in section 2 (c) of the Contempt of Courts Act, 1971.
In connection with the submission as aforesaid whether the
petition should be treated as suo motu, suffice it to say that the
Apex Court in S.K.Sarkar v. Vinay Chand Misra AIR 1981 SC 723
has ruled as under:
"18. It is, however, to be noted that Section 15 does not specify the basis or the
source of information on which the High Court can act on its own motion. If the
High Court acts on information derived from its own sources, such as from a
perusal of the records of a subordinate court or on reading a report in a news.
paper or hearing a public speech, without there being any reference from the
subordinate court or the AdvocateGeneral, it can be said to have taken
cognizance on its own motion. But if the High Court is directly moved by a petition
by a private person feeling aggrieved, not being the AdvocateGeneral, can the
High Court refuse to entertain the same on the ground that it has been made
without the consent in writing of the AdvocateGeneral ? It appears to us that the
High Court has, in such a situation, a discretion to refuse to entertain the petition
or to take cognizance on its own motion on the basis of the information supplied to
it in that petition. If the petitioner is a responsible member of the legal profession,
it may act suo motu, more so, if the petitioneradvocate, as in the instant case,
prays that the court should act suo motu. The whole object of prescribing these
procedural modes of taking cognizance in Section 15 is to safeguard the valuable
time of the High Court or the Supreme Court from being wasted by frivolous
complaints of contempt of Court. If the High Court is prima facie satisfied that the
information received by it regarding the commission of contempt of a subordinate
court is not frivolous, and the contempt alleged is not merely technical or trivial, it
may, in its discretion, act suo motu and commence the proceedings against the
contemner. However, this mode of taking suo motu cognizance of contempt of a
subordinate court, should be resorted to sparingly where the contempt concerned
is of a grave and serious nature. Frequent use of this suo motu power on the
information furnished by an incompetent petition, may render these procedural
safeguards provided in subsection (2), otiose. In such cases, the High Court may
be well advised to avail of the advice and assistance of the AdvocateGeneral
before initiating proceedings."
The Apex Court also referred to the advice and opinion of Sanyal
Committee in which advice was expressed in the following terms.
"The advice and opinion, in this connection, expressed by the Sanyal Committee
is a pertinent reminder : "In the case of criminal contempt, not being contempt
committed in the face of the Court, we are of the opinion that it would lighten the
burden of the court, without in any way interfering with the sanctity of the
administration of justice, if action is taken on a motion by some other agency.
Such a course of action would give considerable assurance to the individual
charged and the public at large. Indeed, some High Courts have already made
rules for the association of the AdvocateGeneral in some categories of cases at
least ......... the AdvocateGeneral may, also, move the Court not only on his own
motion but also at the instance of the Court concerned..........."
In Bal Thackrey v. Harish Pimpalkhute (AIR 2005 SC 396), the
observation of the Apex Court is quoted below.
" 22. In these matters, the question is not about compliance or noncompliance of
the principles of natural justice by granting adequate opportunity to the appellant
but is about compliance of the mandatory requirements of Section 15 of the Act.
As already noticed the procedure of Section 15 is required to be followed even
when a petition is filed by a party under Article 215 of the Constitution, though in
these matters petitions filed were under Section 15 of the Act. From the material
on record, it is not possible to accept the contention of the respondents that the
Court had taken suo motu action. Of course, the Court had the power and
jurisdiction to initiate contempt proceedings suo motu and for that purpose
consent of the AdvocateGeneral was not necessary. At the same time, it is also
to be borne in mind that the Courts normally take suo motu action in rare cases.
In the present case, it is evident that the proceedings before the High Court were
initiated by the respondents by filing contempt petitions under Section 15. The
petitions were vigorously pursued and strenuously argued as private petitions.
The same were never treated as suo motu petitions. In absence of compliance of
mandatory requirement of Section 15, the petitions were not maintainable."
(Emphasis added)
It is thus clearly provided that even if the petition is preferred by a
private person, the Court has jurisdiction to take suo motu
cognizance of the matter in its contempt jurisdiction, if it considers
it to be a fit case for taking cognizance. It is further clarified in the
law report that such suo motu action may be taken only in rare
cases. From the above reasoning it is clear, that even in the
absence of a motion or consent in writing of the Advocate General,
suo motu action for contempt can be initiated by the Court, if it
considers it to be a fit case.
Now the question arises whether the ingredients for initiating
action under the Contempt of Courts Act are discernible and
whether this case falls in the category of the rare cases where
notice to show cause should be issued to the alleged contemners.
An analysis of the article shows that the article appears to be a
roving indictment of the Chief Justice of the Allahabad High Court
and other Judges of this Court and other Courts, and the article
appears to have arrived at a prejudged conclusion about the
corruption in the judiciary in the High Courts and is peppered with
such headings as “The State High Courts are rife with cases of
abuse of law and corruption". or with lines such as "The rumour
decibels in the corridors of our high courts have steadily gone up
in the past few years. The issue, of course, is the moral and
monetary corruption of those that sit in judgement in these highest
courts. Proof may be a bit elusive but reputations have hit rock
bottom. Indeed, there is no dearth of anecdotal tales in the bar
councils on how some judges routinely dole out favours. The latest
controversy in this long list involves the chief justice of the
Allahabad HC, Justice F.I. Rebello."
It would thus exfacie appear that in a reckless and unfair manner
without any opportunity to the Judges who are “held in the dock”
by this article, i.e. Chief Justice Rebello, and Justices Soumitra
Sen, Nirmal Yadav, M.S. Gill, their photographs have been posted
relying on “anecdotal” evidence gathered from bar councils, whose
sources are left undisclosed. Under the photograph of Chief
Justice Rebello, it is mentioned , "Passed order favouring
Mayawati in the Taj Corridor case days after he met her, taking
control of the case away from the Judges who had issued notice
against the CM." Before making the suggestive imputation
prejudging Chief Justice Rebello as guilty of having transferred the
case in an indirect manner to favour Chief Minister Mayawati as
guilty no care has been made for examining the circumstances
how the case was transferred.
We may also advert to the “Norms of Journalistic Conduct” 2005
Issued by the Press Council of India.
Norm 2 Norm 2 relating to “Prepublication and Verification” casts
a duty on the editor to check with due care and attention as to its
factual accuracy and authenticity of any report or article of public
interest which makes imputations against a citizen, and to seek
and publish the clarification of the individual or organization
involved.
Again Norm 3 (vi) reads:
Where the impugned publication is manifestly injurious to the reputation of the
complainant, the onus shall be on the respondent to show that it was true or to establish
that it constituted fair comment made in good faith for public good.
Norm 3(viii) reads:
Publication of defamatory news by one paper does not give licence to others to publish
news/ information reproducing or repeating the same.
3 (xii) reads: Public interest and Public Bodies
As a custodian of public interest, the Press has a right to highlight cases of corruption
and irregularities in public bodies but such material should be based on irrefutable
evidence and published after due inquiries and verification from the concerned source
and after obtaining the version of the person/ authority being commented upon.
Newspapers should refrain from barbed, stinging and pungent language and ironical /
satirical style of comment.
12.(a) reads: Caution in criticising judicial acts
i) Excepting where the court sits 'incamera' or directs otherwise, it
is open to a newspaper to report pending judicial proceedings, in a
fair, accurate and reasonable manner. But it shall not publish
anything :
which, in its direct and immediate effect, creates a substantial risk
of obstructing, impeding or prejudicing seriously the due
administration of justice; or
is in the nature of a running commentary or debate, or records
the paper's own findings, conjectures, reflection or comments on
issues, sub judice and which may amount to abrogation to the
newspaper the functions of the court; or
regarding the personal character of the accused standing trial on
a charge of committing a crime.
ii) Newspaper shall not as a matter of caution, publish or comment
on evidence collected as a result of investigative journalism, when,
after the accused is arrested and charged, the court becomes
seized of the case:
Nor should they reveal, comment upon or evaluate a confession
allegedly made by the accused.
Iii) While newspapers may, in the public interest make reasonable
criticism of a judicial act or the judgement of a court for public
good; they shall not cast scurrilous aspersions on, or impute
improper motives, or personal bias to the judge. Nor shall they
scandalize the court or the judiciary as a whole, or make personal
allegations of lack of ability or integrity against a judge.
iv) Newspaper shall, as a matter of caution, avoid unfair and
unwarranted criticism which, by innuendo attributes to a judge
extraneous consideration for performing an act in due course of
his / her judicial functions, even if such criticism does not strictly
amount to criminal Contempt of Court.
b) Reporting News pertaining to Court Proceedings
Before publishing a news item about court proceedings, it will be
appropriate for the correspondent and editor to ascertain its
genuineness and, correctness and authenticity from the records,
so that the concerned person can be held guilty and accountable
for furnishing incorrect facts or wrong information about the court
proceedings.
In blatant disregard of the Press Council's 'Norms of Journalistic Conduct' restraining the
news paper from casting scurrilous aspersions on, or imputing improper motives, or personal
bias to the judge, or making personal allegations of lack of ability or integrity against a judge,
and from making allegations of corrupt practices, and irregularities, without verification and
irrefutable evidence, and without putting its information to the concerned source, the acts of the
Newspaper concerned could amount to scandalising the court or the judiciary as a whole.
In this connection, a clarification issued by the Registrar dated
28.9.10 has been placed before us, from which it is eloquent that
the administrative order was issued by the Chief Justice on
20.8.2010 conferring exclusive powers on a bench headed by
Justice Pradeep Kant to hear cases of Civil PILs, and on Justice A.
Mateen to hear Criminal PILs at the Lucknow bench of the
Allahabad High Court, on a note put up by the registry at the
Lucknow bench on July 23, 2010 based on a report of the
Computer Section regarding the huge pendency of PIL matters
and the need for bifurcation of such matters into two categories,
Civil and Criminal. For Allahabad likewise exclusive powers for
hearing Civil PILs has been reserved by the Chief Justice's bench
while for PILs relating to criminal matters has been assigned to the
Bench headed by one of us (I.Murtaza J) by an administrative
circular of the Chief Justice dated 27.8.2010. The circular further
envisages that the Chief Justice has directed that in the event it
was not possible for the PIL (Civil) bench to take up the matters,
the PIL (Civil) matters would be heard by a Bench hearing PIL
(Criminal) matters, and vice versa, unless there be a specific order
of the Chief Justice to the contrary. In the absence of both the
aforesaid benches, the matters would be taken over by the Bench
presided over by the Senior most judge.
In these circumstances, prima facie, it appears unfair to impute
motives to the Chief Justice that he had taken away the case
relating to the sanction for prosecution of Smt. Mayawati in the Taj
Corridor matter in an unfair manner from the bench of Justice
Pradeep Kant, as the note clarifies that owing to the huge backlog
of PIL matters, for administrative convenience, PIL matters have
been bifurcated into two categories, with Civil PILs in Lucknow
being taken up by a bench headed by Justice Pradeep Kant, and
PILs relating to Criminal matters being heard by a bench headed
by Justice A. Matin.
Significantly the article when referring to a complaint dated 23.9.10
made to the CJI by the “Committee for Judicial Accountability”
itself admits that it is the absolute prerogative of the Chief Justice
to assign a case to a particular bench or to withdraw the case from
the bench. If the Chief Justice enjoys this plenary power, no
substance would lie in a complaint as to why the case was
transferred by a general administrative order and not by a specific
order.
However, so far as the Taj Corridor case is concerned it needs to
be clarified that even after the issuance of the Chief Justice's
administrative circular dated 20.8.2010, the case (Anupma Singh
v. CBI and others, C.M. Application No. 19884 of 2010 and
connected matters rendered in Misc Writ Petition 2087 (M/B) of
2009), was heard by the Bench of Hon'ble Pradeep Kant J and
Hon'ble Shabihul Hasnain J on 23.9.10 and a Miscellaneous
matter was disposed of, and the Bench itself passed an order that
the writ petition be posted for hearing in the next month before the
regular bench.
Thus, the further averment in the Complaint to the CJI, that it was
only for this one case that the administrative order was passed,
appears misleading, factually incorrect and irresponsible.
Practically, all pending criminal PILs have been transferred to
Benches headed by Justice A. Matin in Lucknow, and to a Bench
headed by one of us (I. Murtaza J) in Allahabad.
The ruling of the Chief Justice that PILs relating to sanctions for
prosecution under section 197 (1) Cr.P.C. or section 19 of the
Prevention of Corruption Act also fall in the category of criminal
matters and are to be heard by a bench hearing Criminal PILs
cannot be legally faulted.
Yet another aspect worthy of notice here is that the Complaint to
the CJI by the Committee for Judicial Accountability is dated 23rd
Sept 2010 while the Magazine being for the week commencing
from 28th Sept, 2010 had come on the stalls prior to 28th Sept
2010. According to the claim of Sri Ravi Kiran Jain, Senior
Advocate, the aforesaid magazine was purchased by him from the
market on 25th Sept 2010. There is nothing on record to show
what was the mode of sending the complaint. The complaint sent
on 23rd Sept 2010 cannot be processed for publication in the
Magazine in the issue meant for the week 28th Sept to 4th Oct
2010. Also whereas no citizen can be prevented from making a
confidential complaint to the CJI against a particular judge, but the
swift leakage of such a complaint to the press in the circumstances
as outlined above which may be suggestive of some intrigue or
collusion between the complainant and the publisher will be
needed to be looked into at the time of hearing of this petition.
The article aforesaid is based on a complaint made to the Chief
Justice of India and it contains the excerpts of the allegations
made in the complaint. It remains to be seen whether the
publication which insinuates the influence of the executive on the
judiciary, and tries to cast aspersions regarding routine meetings
of the head of the judiciary with the executive head of the State
tends to create distrust in the popular mind and impairs the
confidence of the people in the courts and further tends to create
mistrust that the head of the State judiciary is not of the proper
standard.
On consideration of the above facts, it would exfacie appear that the
ingredients of section 2 (C ) of the Contempt of Court Act, 1971 are
disclosed and the alleged contemnors have made themselves liable to
be prosecuted under Section 2 (C)of the Contempt of Court Act, 1971
punishable under section 12 of the said Act.
The article has been attributed to have been jointly processed for
publication by Sugata Srinivasaraju in Bangalore, Smruti Koppikar in
Mumbai, Chander Suta Dogra in Chandigarh, Saikat Datta and
Chandrani Banerjee in Delhi who have been arrayed as respondents 5 to
9. Besides the above, Vinod Mehta, the Editor inChief, Outlook,
Maheshwar Peri Publisher, Outlook, Kirshna Prasad, Editor, Outlook and
Bishwadeep Moitra, Executive Editor, Outlook have also been arrayed
as respondents 1 to 4.
Let notice be issued to the respondents accordingly to appear in Court
on 12.11.2010 at 10 am intimating that the Court has taken suo motu
cognizance of the matter and to show cause why charges be not framed
for making the contemptuous statements outlined above, which
denigrate the Chief Justice and the Judiciary generally and tend to
scandalize and lower the authority of this Court and to prejudice the due
course of judicial proceedings. Let the case be put up before the Chief
Justice for assigning a bench for regular hearing in the matter on the
next and subsequent dates.
As we have held above it is directed that the name of the petitioner shall
be deleted from the array of parties and the case should be treated as
one where the Court has taken suo motu action in the matter, and
described as RE: In the matter of contempt by the weekly magazine
OUTLOOK.
Copy of the notice shall also be given to the Registrar General,
Allahabad High Court and the Government Advocate.
Order Date :- 11.10.2010
MH
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