Court On Its Own Motion vs The Asian Age And Ors.
2003 Latest Caselaw 1250 Del

JUDGMENT

Pradeep Nandrajog, J.

1. The present contempt proceedings stand initiated on the facts as noted by us in our order dated 30.5.2003, under which we had issued a notice to show cause against the contemnors as to why they be not proceeded against and punished for having committed contempt of court. Since the facts stand crystalised in the said order, rather than re-stating the facts, we note our order dated 30.5.2003. The same reads as under :

"News item under the caption "Plea in Court to name Judge as fraud accused" published in "The Asian Age" dated 30.5.2003, New Delhi edition has come to our notice. News item, as published in the newspaper, reports that Mr. Mohan Murthi Shandilya had moved an application on May 5, 2001 before Metropolitan Magistrate Kamini Lao. The report, inter alia, in verbatim, purports to record the averments made in the said application stated to have been filed by Mohan Murthi Shandilya in the Court of Metropolitan Magistrate. The quoted portion of the application as contained in the newspaper report is as under:

"It is worth mentioning here that it was only Mr. Sanjay Kishan Kaul, as advocate of Vijaya Bank, who had filed a copy of the first false specimen signature card allegedly pertaining to NRE 6523 as genuine on 1.2.1994 under his own signature, though knowing that same was false, in the suit No. 1154 of 1993 in the high court of Delhi at New Delhi."

"Similarly, Mr. Maninder Singh was aware of these facts and dishonestly acted in concert with the accused person (Mr. Shetty) and performed an act in furtherance of the common intention with the accused persons in commission of the crime by filing a copy of false specimen signature card allegedly pertaining to NRE 6523 as genuine on 16.11.1995 under his own signature, though knowing that same was false, in the Crl.Misc (Main) No. 2709 of 1995 in Delhi high court, at New Delhi, and thus, fraudulently obtained a wrong order of bail for the accused Mr. Rajeev Shetty to which he was not entitled and for which reason the said bail is liable to be rejected forthwith."

"It is, therefore, most respectfully prayed that this honourable court may be most graciously pleased to take cognizance of the serious and grave offences mentioned herein above by the accused persons, Mr. Sanjay Kishan Kaul and Mr. Maninder Singh, and their names be added as accused persons with the other accused persons named in this complaint, and further, may kindly be summoned, tried and convicted in accordance with the law."

The news item reports that the application is pending in the Court of a Metropolitan Magistrate, Patiala House Courts, New Delhi. From the caption of news item and statements contained in the news item, it is apparent that it concerns a sitting judge of this Court.

We have summoned the concerned record from the Court of Shri V.K. Gupta, Metropolitan Magistrate pertaining to Case Nos. 42/1/96 and 22/1/95;

A perusal of the judicial record reveals that the application dated May 5, 2001 filed under the signatures of Mohan Murthi Shandilya was taken up for consideration by Ms. Kamini Lao, Metropolitan Magistrate, New Delhi on 18.2.2002 and the same was dismissed by a reasoned order holding that neither the allegations in the application make out any case for the Court to proceed against Mr. Maninder Singh, Advocate and Justice Sanjay Kishan Kaul besides holding that the application was barred by limitation and was an abuse of process of law. Inter alia, the order records :

"Both the respondents persons (Shri Maninder Singh, Advocate and Shri Sanjay Kishan Kaul, Advocate) have only performed their professional duties for which they are protected.

The present application which has been filed after the period of almost 6-7 years is only an abuse of the process of law and is not maintainable before this Court. Even otherwise I do not find any merits on the allegations made therein. The application is hereby rejected."

Judicial record shows that a criminal revision was filed against the said order which was dismissed by a reasoned order dated 2.8.2002 passed by Shri H.S. Sharma, Additional Sessions Judge, Delhi wherein he affirmed the findings of the Metropolitan Magistrate that the application was an abuse of process of law and even on merits, no case was made out for impleading Mr. Maninder Singh, Advocate and Justice Sanjay Kishan Kaul as accused persons in the complaint.

Record of the Trial Court shows that the applicant did not take out any further proceedings either in this Court or the Hon'ble Supreme Court challenging the orders of the Metropolitan Magistrate and the Additional Sessions Judge. Thus, the decision on the application dated May 5, 2001 attained finality.

The aforesaid newspaper report categorically records that the application filed on May 5, 2001 is pending in the Court of the Metropolitan Magistrate whereas the record is to the contrary. From the manner in which the caption to the news item is given and the deliberate false manner of reporting, in that, reporting that the application is pending and extensively quoting from the application, without reporting that the application was found to be without any merit and was a frivolous application and that it was dismissed, we are prima facie satisfied that the reporter Mr. Venkatesh Kesri, the printer and publisher Mr. Venkatesh and Mr. Kaushik Mitter, editor of "The Asian Age", New Delhi edition are guilty of scandalising the court and the Judge. The publication lowers the authority of the Court and brings the administration of justice to disrepute.

Prima facie, therefore, a criminal contempt has been committed by the said persons. Let notice to show cause be issued under Section 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India to show, cause as to why they be not proceeded against and punished for having committed contempt of Court. Notice be issued, returnable for 7.7.2003." .

2. Subsequently, based on the stand taken by the three contemnors to whom the notice was issued, notices were issued to Shri M.J. Akbar, Editor-in-Chief of "The Asian Age" and Mohan Murti Shandilya.

3. Response has been filed. The contemnors, Mr. M.J. Akbar, Editor in Chief, Mr. Venkatesh Kesri, Reporter, Mr. Kaushik Mitter, Managing Editor and Mr. T. Venkatesh, Printer and Publisher of "The Asian Age" have at the outset tendered an unqualified apology to this Court for publication of the new item. In their affidavits, they have stated that they hold the entire judiciary of the country in very high esteem and have the highest level of regard for this Court. Deep regrets have been expressed for having published the news item. As per the affidavit of Shri Venkatesh Kesri, Reporter of "The Asian Age", contemnor Mohan Murti Shandilya had contacted him and had furnished the information on the basis of which he prepared the news item. In his affidavit, Shri Venkatesh Kesri states that he went by the words of Shri Mohan Murti Shandilya. We may note that in his affidavit, Shri Venkatesh Kesri has not stated that he tried to verify the contents of the statements given to him by Mr. Mohan Murti Shandilya, by causing an inspection to be made of the Court record or by contacting Shri Maninder Singh (Advocate) against whom also, certain acts have been alleged. Shri Kaushik Mitter, Managing Editor, in his affidavit has stated that he bonafide believed the statements to be true and cleared the report for publication. We may note that Shri Kaushik Mitter also does not say in his affidavit that he tried to obtain verification of the contents by causing inspection to be made of the court records. In his affidavit, Mr. T. Venkatesh, Printer and Publisher has stated that he believed the contents of the news item to be correct based on the scrutiny of the application under Section 319 Cr.P.C. We may note that even Mr. T. Venkatesh does not state in his affidavit that he attempted to find out as to what happened to the application in question. In his affidavit, Mr. M.J. Akbar, Editor has also not stated that he caused or directed that an enquiry be made of the Court record about the application. Contemner Mohan Murti Shandilya has not expressed any regret nor tendered any apology. As per his affidavit, Mr. Venkatesh Kesri contacted him and wanted his comments in respect of the subject matter in issue. He requested Mr. Venkatesh Kesri to meet him but the meeting never materialised. In his affidavit, Mr. Mohan Murti Shandilya has denied having given any papers to Mr. Venkatesh Kesri, much less being the motivator of the offending publication. However, the following averments need to be noted :

"2. That the aforementioned criminal complaints are pending before the Court of the Ld.MM, Patiala House, New Delhi, and the aforementioned civil suit is pending before the Hon'Delhi High Court, and the Crl.Misc.Main 2709/95 was disposed off by the Hon'ble Delhi High Court vide order for grant of bail to the accused.

3. However I further state that I have moved an application for cancellation of the said bail, which the accused person had obtained by presenting false and fabricated documents as genuine though knowing that the same were false.

4. That the said application is still pending for admission because the original file/records of the Criminal Misc. Main No. 2709 of 1995 are reported to have been missing from the record room without any trace.

5. In the circumstances, it is most respectively submitted that this aspect deserves urgent consideration of this Hon'ble Court, since unexplained disappearance of court records without trace amounts to a very grave and serious assault on the very sanctity of the temples of justice in upholding the supremacy of the rule of law."

(The underlined portions in the paragraphs reproduced by us from the affidavit of Shri Mohan Murti Shandilya are as underlined by him in his affidavit.)

4. At the hearing held on 5.9.2003, contemnors other than Mohan Murti Shandilya made a statement that since they have tendered an unqualified apology, they would like to publish the same in the newspaper, with the same prominence in which the offending news item was published.

5. In the newspaper of 20.9.2003, the apology was published. Though published, the prominence as undertaken to be given was found missing. On 4.11.2003, re-publication was effected though not strictly in the manner undertaken.

6. A good name is worth more than good riches. Shakespear's Othello, Act II, Scene 3, 167 :

"Good name in man and woman, dear my Lord

Is the immediate jewel of their souls;

Who steals my purse, steals trash;

Its something nothing;

T was mine, its his, and has been stale to thousands;

But he that filches from me my good name,

Robs me of that which not enriches him

And makes me poor indeed."

7. John Stuart Mill, in his essay on "Liberty" pointed out the need for allowing even erroneous opinions to be expressed on the ground that the correct ones become more firmly established by what may be called the dialectical process of a struggle with wrong ones which exposes errors. Milton, in his "Areopagitica" said :

"Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously be licensing and prohibiting to mis-doubt her strength. Let her and Falsehood grapple; whoever knew Truth put to the worse, in a free and open encounter? ..... Who knows nor that Truth is strong, next to the Almighty, she needs no policies, no stratagems, no licensing to make her victorious, those are the shifts and defenses that error makes against the power....."

8. History is witness that civilization would not have intellectually prospered in the absence of freedom of speech and expression. Voltaire expressed a democrat's faith when during arguments he told an adversary in arguments: 'I do not agree with a word you say, but I will defend to the death your right to say it.' Indeed, our Constitution by virtue of Article 19(1)(a) guarantees the freedom of expression and opinion.

9. The right of the press in any democracy to report on matters of public importance has to be not only recognised but even protected. Indeed, freedom of the press is an ark of the covenant of democracy, because criticism is essential in every democracy. But like any other right, this right must also to be limited. The social interest in free expression is simply that without expression, there is no society at all, because communication is the very essence of social life. Society has no other intelligence, no other fertility, no other raw material than what the individuals give out of their minds through acts of expression.

10. In the traditional theory, freedom of expression is not only an individual but a social good. In a democratically organized society, all members have a right to form their own beliefs and communicate them freely to others. However, in the democratic society, there are other values to be attained as well, such as public order, justice, equality and moral progress. At times, these values may come in conflict with the chershed freedom of speech. Jacques Maritan (Man and the State) was of the view that no right is absolutely unconditional and exclusive of limitation.

11. Though freedom of expression and speech is essential to a democratic society, it is not the sole aim of a good society. As private right of the individual, freedom of expression might be an end in itself, but it is not the only end of a man as an individual. In its social aspects, freedom of expression is primarily a process of reaching other goals. It is one of the basic element of a democratic way of life, but is not through this process alone that a democracy attains its ultimate end.

12. An important social interest lies in the fair and impartial administration of justice. This social interest is sought to be protected by inclusion of, what is called, 'Contempt of Court'. This power exists to maintain the continuity of the crystal clear flow of the stream of justice by sustaining the confidence of the public at large in the free administration of justice.

13. In an area of competing social values absolutionist approaches are sure to err. The delimma is clear. The prosecutor is the punishing authority. Delimma has to be resolved by the judicial process requiring the judge to resist, with sage silence, the shafts of acid speech, unfair and uncharitable criticism, but not to a point where social interest suffers; benign neglect being misread as impotency of the judicial process. In our constitutional scheme, one must hot forget, that the most fundamental of all freedoms is the free quest for justice by small men. "This, then is the measure of the span of freedom of speech and the sweep of the contempt power.

14. The right of the press in a free democracy to put to scrutiny, the working of the judicial institution is without exception. Administration of justice as well as those who administer it, namely Judges, are open to criticism and put to scrutiny. Judges are accountable to the Society. This accountability has, however, to be judged on the anvil of the oath of their office i.e. to defend and uphold the Constitution and laws without fear and favor. To quote Lord Atkin in Ambard v. Attorney General for Trinidad and Tobago, (1936) 1 ALL E.R. 704 'Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though out spoken, comments of ordinary men.'

15. On this subject, the Apex Court in R.C. Cooper v. Union of India, as under : .

"There is no doubt that the Court like any other institution does not enjoy immunity from fair criticism. This Court does not claim to be always right although it does not spare any effort to be right according to the best of the ability, knowledge and judgment of the Judges. They do not think themselves in possession of all truth or hold that wherever others differ from them, it is so for error. No one is more conscious of his limitations and fallibility than a Judge but because of his training and the assistance he gets from learned counsel he is apt to avoid mistakes more than others...... We are constrained to say also that while fair and temperate criticism of this Court or any other Court even if strong, may not be actionable, attributing improper motives, or tending to bring Judges or Courts into hatred and contempt or obstructing directly or indirectly with the functioning of Courts is serious contempt of which notice must and will be taken. Respect is expected not only from those to whom the judgment of the Court is acceptable but also from those to whom it is repugnant. Those who err in their criticism by indulging in vilification of the institution of the Courts, administration of justice and the instruments through which the administration acts, should take heed for they will act at their own peril. We think this will be enough caution to persons embarking on the path of criticism."

16. In the case of State v. Vikar Ahmed, AIR 1954 Hyd 175, it was observed :

'We may observe that the freedom of press under our Constitution is not higher than that of citizen, and that there is no privilege attaching to the profession of the press as distinguished from the members of the public. To whatever height the subject in general may go, so also may the journalist, and if an ordinary citizen may not transgress the law so must not the press. That the exercise of expression is subject to the reasonable restriction of the law of contempt, is borne out by Clause (2) of Article 19 of the Constitution. It should be well to remember that the Judges by reason of their office are precluded from entering into any controversy in the columns of the public press, nor can enter the arena and do battle upon equal terms in newspaper, as can be done by ordinary citizens."

17. Quoting with approval the observations of Willmet C.J., Supreme Court in the judgment reported as Bathina Ramakrishna Reddy v. State of Madras, observed :

"The offence of contempt is really a wrong done to the public weakening the authority and influence of Courts of law which exist for their good. As was said by Willmot C.J., Willmot's opinions P.256; Rex v. Davis, 30 at 40-41:

"attacks upon the judges excite in the minds of the people a general dissatisfaction with all judicial determinations ....... and whenever man's allegiance to the laws is so fundamentally shaken it is the most fatal and dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the judges as private individuals but because they are the channels by which the King's justice is conveyed to the people."

18. Lord Denning expressed himself in the following words:-

"All we would ask is that those who criticize us will remember that from the nature of our office, we cannot reply to their criticism. We cannot enter into public controversy. Still less into, political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that nothing which is written by this pen or that, will deter us doing what we believe is right, nor I would add from saying what the occasion requires provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done. (See R.V. Metropolitan Public Commissioner Ex.p. (1968) 2 All.E.R. 3(9)."

19. Indeed, innumerable are the ways by which attempts can be made to hinder or obstruct the administration of justice in Courts. One said type of interference is found in cases where there is an act or a publication which scandalises the Courts itself. Again, this scandalising may manifest itself in various ways, but it substance, it is a scurrilous attack on an individual Judge or Judges of the Court as a whole, such conduct is punishable as contempt for the reason that it tends to create dis-respect in the popular mind and impair confidence in belief in Courts which are of prime importance to the litigants in the protection of their rights and liberties.

20. Crystalising as to what are the considerations in an action for punitive action under contempt jurisdiction, speaking for the Bench, Hon'ble Mr. Justice V.R. Krishna Iyer in the judgment reported as In Re S. Mulgaokar, AIR 1978 SC 727 held that there were six facets which may be called guidelines, to guide a judicial decision in a matter pertaining to contempt of Court, which are :

A) Where the attack was unfounded on a Judge or where it was calculated to obstruct or destroy the judicial process, contempt power could be invoked.

B) While invoking the power, Constitutional value of free criticism and specially of the press had to be harmonised. Balance had to be struck, benefit of doubt being given generously against the Judge. While considering this, if it is found that the freedom of expression was fairly exercised, public justice could not gag it because free people are the guarantors of fearless justice.

C) Distinction between personal protection of a libelled judge and prevention of obstruction of public justice must be considered. Law of Contempt exists to protect public confidence in the administration of justice and not to protect the judge.

D) The press should be given free play within reasonable limits even when the focus of its critical attention is the Court, including the highest court.

E) Contempt jurisdiction has not to be hypersensitive.

F) On an evaluation of the five guiding factors above if on the totality of the factors it is found that the conduct of the offender is scurrilous, offensive, intimidatory or malicious beyond condonable limits, public interest and public justice demands that action be taken against the offender for the fouling its source where stream of justice flows.

21. In the same judgment, in the concurring opinion, discussing the right of the powers to report news items, Chief Justice M.M. Beg observed :

"if this is done in a reasonable manner, which pre-supposes accuracy of information about a matter on which any criticism is offered, and arguments are directed fairly against any reasoning adopted, I would speaking for myself, be the last person to consider it objectionable even if some criticism offered is erroneous."

22. In the judgment In Re. Harijai Singh, Hon'ble Supreme Court held that right to freedom of the press which has a flavour of individual liberty, has always been respected by the Courts. However, it is the concoctment duty of the press, not to mis-use its freedom. Freedom is not to be mis-understood as to be a press free to disregard its duty to be responsible. It was emphasised that the element of responsibility must be present in the conscious of the press. Indeed, in an organized society, every right has a corresponding duty and responsibility. Protective cover of press freedom must not be thrown open for wrong doings. Presentation of the news needs to be truthful, objective and comprehensive without any false and distorted expression. On facts, it was found :

"In the present case, as we have noticed above, neither printer, publisher nor the editor and reporter took the necessary care in evaluating the correctness and credibility of the information published by them as the news items in the newspapers referred to above in respect of an allegation of a very serious nature having great repercussion causing an embarrassment to this Court. An Editor is a person who controls the selection of the matter which is to be published in a particular issue of the newspaper. The Editor and Publisher are liable for illegal and false matter which is published in their newspaper. Such an irresponsible conduct and attitude on the part of the Editor, Publisher and the Reporter cannot be said to be done in good faith, but distinctly opposed to the high professional standards as even a slightest enquiry or a simple verification of the alleged statement about grant of petrol outlets to the two sons of a senior Judge of the Supreme Court, out of discretionary quota, which is found to be patently false would have revealed the truth. But it appears that even the ordinary care was not resorted to by the contemnors in publishing such a false news items. This cannot be regarded as a public service, but a dis-service to the public by misguiding them with a false news. Obviously, this cannot be regarded as something done in good faith.

23. The aforesaid two judgments of Hon'ble Supreme Court, which we have referred to, clearly bring out the duty of the Reporter, Printer, Publisher and Editor to take a minimum precaution of care, in evaluating the correctness and credibility of the information received before publishing the same as news item.

24. The Press Council has enunciated guidelines to regulate the conduct of the press. At this stage, it would be convenient to set out some of the norms of journalistic conduct : "XX XX XX Accuracy and Fairness

(1) The press shall eschew publication of inaccurate, baseless, graceless, misleading of distorted material. All sides of the core issue or subject should be reported. Unjustified remours and surmises should not be set forth as facts. Re-publication verification

(2) On receipt of a report on article of public interest and benefit containing imputations or comments against a citizen, the editor should check with due care and attention its factual accuracy-apart from other authentic sources with the person or the organization concerned to elicit his/her or its version, comments or reaction and publish the same with due amendments in the report where necessary. In the event of lack of absence of response, a footnote to that effect should be appended to the report.

XXXXXX"

25. What is contempt of Court has been stated in lucid terms by Oswald in Classic "Book on Contempt of Court". It is said:

"To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and demonstration of law into disrespect and disregard or to interfere with or prejudice parties, litigant or their witnesses during the litigation."

"Contempt in the legal acceptance of the term, primarily signifies disrespect to that which is entitled to legal regard, but as a wrong purely moral or affecting an object not possessing a legal status, it has in the eye of the law no existence. In its origin all legal contempt will be found to consist in an offence more or less direct against the sovereign himself as the fountainhead of law and justice or against his palace where justice was administered. This clearly appears from old cases."

26. The affidavits filed, as noticed by us above, reflect that the duty of care arid caution has been thrown to the winds. Reporter, Editor, Printer and Publisher have proceeded to publish the news item post haste. Even the manner of its publication is suggestive of a mischievous intent. A single column news item has been given a caption in prominent bold letters spread over six columns. No attempt was made to verify from the court record or from Shri Maninder Singh (Advocate), as to what happened to the application filed by contemner Mohan Murti Shandilya; extracts whereof have been liberally taken and quoted in the offending news item. A little care would have revealed that the application was found to be without merit. The same was dismissed by the Court without even issuing any notice to those against whom the application was directed(mis-directed would be more appropriate word). Respondents i.e. the Printer, Publisher, Editor and Reporter of "The Asian Age" have indeed, by the offending news item brought to dis-repute, in the public eye, a sitting judge of this Court undermining and subverting the dignity of the judge. The news item cast expression against a sitting judge of this Court. To the Reader, what would be conveyed by the news item is that a sitting judge of this Court has forged documents and is a party to fraud. The news item suggests that the judge acted in concert with the accused person. The news item contains statements which casts aspersions on the integrity and character of an Hon'ble Judge of this Court. The news item highlights false and incorrect facts without proper verification. Limits of freedom of press and fair journalism have been over stepped. The news item has attempted to show an Hon'ble Judge of this Court in poor light. Consumers of justice would loose faith in the members of the judiciary and corrode credibility of the institution. The news item is not a criticism of a view taken by the judge. It has targeted a judge in person. Bound by the limitations of his office, the judge cannot respond. In our opinion, when a judge is attacked personally and not in respect of a view taken by him in a judgment, the offence of contempt becomes graver. We hold that the Editor, Reporter, Printer and Publisher and Editor-in-Chief of the Asian Age guilty of having committed contempt of this Court.

27. That takes us as to what punishment be inflicted. As noticed above, time and again, courts, while upholding the right of press to report on court proceedings have cautioned that press has a duty of care and caution to investigation about the correctness of the news. The contemnors, who have been found guilty, violated the duty of care. Though unconditional apologies have been tendered, but this would be a factor to mitigate the contempt. Indeed, an apology does not wipe out a contempt. Considering that the apology has been tendered to the Court, at the first instance, coupled with the fact that the same has been published in the newspaper and also considering the fact that inspite of the repeated court pronouncements, the contemnors have not verified the factual correctness of the news report, we, while convicting the Reporter Mr. Venkatesh Kesri, Editor Mr. Kaushik Mitter, Editor-in-Chief Mr. M.J. Akbar and Printer and publisher Mr. T. Venkatesh of having committed contempt of this Court, impose upon each one of them a fine of Rs. 2000/- to be deposited by each one of them with Delhi Legal Services Authority within one week. In default of payment of find the contemnors shall undergo simple imprisonment for one month.

28. We hope that such situation, where the court is required to perform the painful duty of invoking it's contempt jurisdiction against the press, would not arise again. We hope and trust, that press would, while reporting on judges conduct and court proceedings keep in mind the legal duty enjoined on the press to verify the accuracy of the contents of the news item. Reporting on courts or about courts should be entrusted to correspondents having expertise in knowledge of court procedures. Accredited reporters/journalists to courts who alone would report on court proceedings would be a welcome idea. We believe this is being followed in the Apex Court.

29. We direct that the Registrar General of this Court be supplied a copy of this judgment for consideration on the administrative side to have a system of accredited reporter/journalist for reporting qua Delhi High Court and subordinate courts.

30. That leaves us with the contempt notice to Mr. Mohan Murti Shandilya. We have noticed his defense. It requires trial proceedings against Mohan Murti Shandilya. List the matter on 10th December, 2003 for further proceedings.