Nehru Memorial Museum & Library ... vs Dr. N. Balakrishnan
2010 Latest Caselaw 4899 Del

*          HIGH COURT OF DELHI : NEW DELHI

+         CCP No.380/2010 in WP (C) No.13733/2009

%                                 Judgment decided on : 25.10.2010

Nehru Memorial Museum & Library Society            ....Petitioner
                   Through: Mr. Parag P. Tripathi, ASG with Mr. Kunal
                            Bahri, Mr. Jayant K. Mehta and Mr. S.C.
                            Dhanda, Advs.

                      Versus

Dr. N. Balakrishnan                           ......Respondent/Contemnor
                      Through: Ms. Nitya Ramakrishnan, Adv. with
                               Ms. Piya Singh, Adv.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                       Yes

2. To be referred to Reporter or not?                    Yes

3. Whether the judgment should be reported               Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The respondent/applicant Nehru Memorial Museum and

Library has filed the present contempt petition against Dr. N.

Balakrishnan under Sections 11 and 12 of the Contempt of Courts Act,

1971 and Article 215 of the Constitution of India alleging that during the

hearing of the main writ petition No.13733/2009 on 19.5.2010 a news

appeared in the newspaper The Hindu with the caption "One Year on

Nehru Library Deputy Director Awaits Justice". According to the

petitioner, that from mere perusal of newspaper report it is clear that the

respondent has committed contempt as the respondent has created an

atmosphere of trial by press. The said reporting also reports an interview

on behalf of the respondent. The contention of the petitioner is that there

is no reference in the newspaper report that the matter was being heard on

day-to-day basis. Thus, an impression is given as if the hearing which

was held on 19.5.2010 is a stand alone hearing and not a continuation of

day-to-day hearing.

2. In reply it is stated that the contempt petition is a frivolous one

and is liable to be dismissed. It is stated that the said publication of

article has added nothing to what was put forth in writing to the Court in

March 2010 and to what was also read out in open Court. Since the

proceedings were in open Court, every part of the record was read out

during the course of the arguments. Any legal inferences to be drawn

therefrom vis-à-vis the cause of action are entirely for the Court. The

publication has not presumed to make any such inferences which in fact

are part of arguments and pleadings. The publication and comments

which appeared in the newspaper report being the part of judicial

proceedings are excluded from being contempt by virtue of Section 4 of

the Contempt of Courts Act, 1971. It is contended by the respondent that

the trial by media refers to a situation where media asserts the rightness or

wrongness of a cause of action, pronouncers on what is for the Court to

lay down. The report dated 19.5.2010 has uttered not one word on the

legitimacy or otherwise of the charge-sheet. It is denied by the

respondent that the said story reported in the newspaper was one sided

and whatever is published i.e. on the basis of the record available on the

file. It is also stated that there is no discussion in the publication on the

issue involved in the writ petition and its relative merits. Therefore, the

said petition filed by the petitioner under Sections 11 and 12 of the

Contempt of Courts Act, 1947 be dismissed with cost.

3. The contention of the learned counsel for the petitioner is that

as per settled law the trial by press is a contempt of court, as it is an

attempt to overreach the Court and influence the decision of the Court.

According to the counsel, the entire tenor of the newspaper report was

that the petitioner in the contempt petition has been greatly wrong and the

respondent‟s so-called crave for justice has to be completed so that he

gets justice. It is also submitted that there was no reference in the

newspaper report that the matter was being heard on day-to-day basis.

4. Reliance was placed by the petitioner on the following three

judgments:

1. In re P.C. Sen, AIR 1970 SC 1821.

2. M.P. Lohia Vs. State of WB, (2005) 2 SCC 686.

3. Rao Harnarain Singh Vs. Ghumani Ram Arya, AIR 1958 Punjab 273.

5. I have heard the submissions of the learned counsel appearing

on behalf of Dr. N. Balakrishnan who has also referred few decisions in

support of her client.

6. C.K. Thakker‟s Law lexicon defines „public domain‟ as

"domain that has no restrictions upon dissemination of information within

or from it; the existence of any legal rights to intellectual property in that

information does not remove such information from being in public

domain". The 1971 Act was passed with the express intent of bringing

the contempt law more in line with widening trends of the freedom of

expression.

7. The amendment of Section 13 of the present Contempt of

Courts Act in 2006, adding „truth‟ as a defence, the scope of what

constitutes „contempt‟ has been limited even further Section 13 of the

present Act also contains a bar against imposing a sentence even where

there is a technical contempt unless there has been a substantial

interference with the due course of justice.

8. Section 4 of the Contempt of Courts Act, 1971 is relevant to

the present case. It rules out of the definition of „contempt‟ any fair and

accurate report of a judicial proceeding or any stage whereof.

9. In Vijay S. Mallya Vs. Bennett Coleman and Co. decided on

10th March 2010, the Bombay High Court held that an article published

under the title "Senior Citizen Takes on „Bullying‟ Builder Drags Him to

Court over Revdevpt Deal" which detailed the bullying tactics of one of

the parties in an ongoing proceeding was held to be not contempt in view

of the fact that everything stated therein was based on the pleadings in the

pending court proceedings. In fact, the story was based on information

supplied by one of the parties and no attempt was made even to secure

the comments of the rival party. The Court held "On going through the

said paragraph 19 (of the reply) it s crystal clear that the newspaper

reporting is based on the documentary (sic) as well as pleadings which

form part of the court proceedings. In our view, therefore, it cannot be

said that the said reporting was not accurate and bona fide as the

reporting is made on the basis of the record placed before the court in the

pending proceedings...".

The court went on to add that the media is required to show

some restraint particularly in criminal matters where life and liberty would

be involved.

10. Even in respect of a murder trial in Sushil Sharma Vs. State

(Delhi Administration) & Ors., 1996 Crl. LJ 3944, has repelled the

charge of contempt with respect to media reports based on the charge-

sheet praising prosecution witnesses and referring to the public desire to

hang the offender as also publishing results of the DNA test results which

were part of the police investigation.

This Court held that "in all these news items press has stated

as a matter of fact what has been placed on court record by the

prosecution and what is happening in the society after the murder of

Naina Sahni. By publishing the news items including reporting of

demonstrations, views of some of the people and the evidence filed on

record including DNA expert report the press has stated what has come

on record. There is no criticism of any of the evidence in any manner. It

is more a case of propriety than contempt. In fact people at large have a

right to know in order to be able to take part in such like proceedings.

The right to know is a basic right which citizens of a free country aspire

in the broader horizon of the right to live in this age in our land under the

Constitution of India.

11. In Narain Das Vs. Government of Madhya Pradesh and

Ors., AIR 1974 SC 1252, ruled that an unfavourable projection of one of

the parties in a pending litigation merely affected the reputation of that

party and did not amount to contempt. In Reliance Petrochemicals Ltd

Vs. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd and

Ors, AIR 1989 SC 190, the broadening and deepening dimensions of the

Right to Freedom of expression were recognized as was the case in S.

Rangarajan Vs. P. Jagjivan Ram, (1989) 2 SCC 574. Institutions

cannot be hypersensitive about comment even pertaining to pending

proceedings. In Re Lonrho plc and others, (1989) 2 All ER 1100 and

Schering Chemicals Ltd v. Falkman Ltd, (1981) 2 All ER 321 even

tendency was held to be "a matter to be judged with a view to a clear and

present danger to the one or the other identifiable interest in an ongoing

proceeding, such as whether it would affect the conduct of witnesses or

deter any party from pursuing the remedy." The possibility of a

professional judge being influenced was held to be far more remote.

12. In the Rao Harnarain Singh case (supra), the daily

declaration of a newspaper that the accused in a case were rapists and

killers was seen as inimical to their right of due process. M.P. Lohia's

case (supra) is the only post -1972 judgment relied upon by the petitioner

which was not a case on contempt of court however, the publishing of an

interview of the victim family without any attempt to take the view of the

other side when the later was facing criminal charges that would affect his

life and liberty was deprecated by the court.

13. In the judgment of the European Court of Human Rights in the

celebrated case of Sunday Times v. The United Kingdom. "It is true

that if the Sunday Times article had appeared at the intended time

distillers might have felt obliged to develop in public, and in advance of

any trial, their arguments on the facts of the case; however the facts did

not cease to be a matter of a matter of public interest merely because they

formed a background to pending litigation. By bringing to light certain

facts, the article might have served as a break on speculative and

unenlightened discussion."

14. I have gone through the submissions advanced by the parties

also the records of the proceedings and have given the careful

consideration to the matter. I am of the opinion that no case is made out

to exercise the contempt jurisdiction due to following reasons:

a) The mere newspaper write up raising the grievance and giving the

opinion does not by itself amount to trial by media. The right to

speech and expression envisaged under the constitution also

includes right to express the opinion in media. The times have

changed and the media has very active role to play in the country.

There are cases of more heineous nature and of utmost importance

wherein the media tries to delve into the areas which the parties

litigating may find objectionable. But it would be incorrect to draw

the inference that the said thing would amount to trial by media by

itself or the court is going to be influenced by such things. Thus, I

feel that the present case do not fall in the area of the trial by media

itself on the reason that the publication and comments which

appeared in the newspaper report being the part of judicial

proceedings and the matter was being argued in open Court by

referring various documents. It was also a matter of fact that Dr.

Balakrishnan was suspended on 30.4.209 and charge-sheet was

issued against him on 22.6.2009 and the matter was not finalised

for more than one year. Therefore, this Court is of the considered

opinion that no case of contempt under Sections 11 and 12 of the

Contempt of Courts Act, 1971 against Dr. Balakrishanan has been

made out.

b) The contempt jurisdiction is exercised by the court wherein there is

deliberate or willful disobedience of the orders of the court or in

anything which undermines the majesty of the court. The mere

newspaper report or write up raising some grievance in the opinion

of this court will not enable this court to exercise the contempt

jurisdiction.

16. It is well settled that the contempt jurisdiction is the special

jurisdiction and the court has to itself form the opinion that it is contempt

of the court and not upon the insistence of any party.

In Re: Special Reference No. 1 of 1964, [1965] 1 S.C.R. 413, it has been

observed by the apex court that it is for the court to consider whether any

matter falls within its jurisdiction or not. Unlike a court of limited

jurisdiction, the superior Court is entitled to determine for itself questions

about its own jurisdiction.

17. The judgment referred by the learned counsel for the petitioner

is on different facts. Hence, the same is not applicable to the facts and

circumstances of the present case.

18. In view of the same, it is upon this court to determine whether

to exercise the contempt jurisdiction or not. Upon examination of the

material, I am of the view that no case is made out for exercising the

contempt jurisdiction and it is hereby dismissed. No order as to cost.

MANMOHAN SINGH, J.

OCTOBER 25, 2010 jk/sa