Vikram Bakshi vs State & Anr
2017 Latest Caselaw 3353 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of Decision: 18th July, 2017

+      Crl.M.A. 10706/2017 in Crl. M.C. No. 2493/2017

VIKRAM BAKSHI                                             .... Petitioner
                                       versus
STATE & ANR                                               ..... Respondents
Advocates who appeared in this case:

For the Petitioner            : Mr Kirti Uppal, Sr. Adv. With Mr Rishi Sood,
                                Adv.
For the Respondents          : Mr Hirein Sharma, APP for State.
                                Mr Deepak Khosla, R-2 in person.

CORAM:-

HON'BLE MR JUSTICE C. HARI SHANKAR

                                   ORDER

C. HARI SHANKAR, J

1. This application, preferred by Mr Khosla/respondent no.2, prays

for a direction that the proceedings of the court be video recorded or at

least audio recorded or "in the lesser preferred alternative", that the

entire hearing be transcribed by multiple court stenographers, at the

expense of the applicant.

2. Mr Khosla, who appears in person, advanced lengthy arguments

on the above application, on 11th July 2017. Pursuant to conclusion of

the arguments, vide order passed on the said date, the application was

dismissed, for reasons to be stated separately.

3. This order proceeds to record the reasons for dismissing the

aforementioned application.

4. Paras 4 to 7, and 13 to 16 of the application, which purport to

set out the justification, for the prayers contained therein, read as

under:

"4. That it is most humbly submitted that parties resorting to wayward conduct(such as filing false affidavits, filing forged documents, etcetera), itself, is bad enough; but when the "rot" spread to counsels acting in the matter, the manner in which proceedings are conducted has to change, so that no party can claim that benevolence has been shown by the Hon‟ble Court to any erring party and/or his counsel.

5. That in the present litigation, 3 advocates have already been summoned to stand trial vide order dated 22.06.2017. In addition, in Crl. MC (Co) No. 1 of 2009, 5 advocates have been issued a notice by the Hon‟ble Delhi High Court under Section 340 of the CRPC ( for perjury), which proceedings have still not been closed; rather, the erring advocates, by refusing to the affidavits

to contribute the allegations against them, have, in legal effect, accepted the charges levelled against them.

6. That under the circumstances, in order to protect the dignity and authority of this Hon‟ble Court, and, consequently, the solemnity and sanctity of the proceedings it conducts, and even if not for the aforesaid purpose, but equally, for the protection of the rights of the parties hereto, it is essentially that there be an incontrovertible record of all that is argued in Court, so that should any party and/or counsel be caught " making false claims in Court", as the offence is prosecutable, inter alia, under Section 209 of the Indian Penal Code, it is very vital that the proceedings be meticulously recorded.

7. That it is equally vital to record the proceedings on the principles that "prevention is better than cure". This argument is put forward on the from ice that in the event that the parties know that the proceedings are being recorded, everybody shall be much more circumspect in their conduct while appearing in Court, and shall refrain from making even what could be generously termed as "loose statements", much less "false claims in Court".

13. That as the Petitioner‟s deposition at para 2 of their identical affidavits filed before this Hon‟ble Court have deliberately excluded the mandatory phrase to the effect that the contents of their petition and subsequent applications are also based on the legal advice believed by him to be true, and since the affidavit, too, has undoubtedly been drafted by learned counsel, and he (learned counsel) is using the contents of the petition and the application in oral arguments put before this Hon‟ble Court, and as it is inconceivable that any counsel worth his salt would- or could- give them advice of such a nature so as to enable the deponents to set out the alleged facts as set out by them in the petition and the application

whose contents they are using to put forward arguments before this Hon‟ble Court and argue the same, it is necessary and expedient in the interests of justice that the counsel(s) who have rendered this advice also be summoned and examined by this Hon‟ble Court and cross-examined by the applicant, as they, too, would be witnesses to the correctness of the contents of the affidavits drafted by them and executed by the deponents.

14. That the submission of the applicant in the foregoing para may also be read in light of the Bar Council Rules which make it a mandatory prohibition for a counsel to not mislead Court, nor to be a "mouth piece" of his client. The relevant parts of Part VI of the Bar Council Rules ( Being Chapter II (Preamble) and its Section 1 (Duty to the Court) are reproduced below for the ease of referral of this Hon‟ble Court:

„PART VI

CHAPTER-II

Standards of Professional Conduct and Etiquette

(Rules under Section 49 (1) (c) of the Act read with the Proviso thereto) Preamble

An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client and in his conduct conform to the rules hereinafter mentioned both

in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as denial of the existence of others equally imperative though not specifically mentioned.

Section 1 - Duty to the Court

3. An advocate shall not influence the decision of a court by any illegal or improper means. Private communications with a judge relating to a pending case are forbidden.

4. An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the Court, opposing counsel or parties which the advocates himself ought not to do. An advocate shall refuse to represent the client who persists in such proper conduct. He shall not consider himself a mere mouth-piece of the client, and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks on pleadings, and using intemperate language during arguments in court.‟

Therefore as it is inconceivable that a competent counsel who is even reasonably conversant with the provisions inter alia of the Companies Act could have drafted the contents of the aforesaid petition and subsequent application with willing and informed consent on his part (as the true, correct and full facts must assuredly be contrary to the knowledge of such counsel also), and since it is clear from the deliberately distinct averments made by the petitioners where they have not used the mandatory/standard phrase that "That the legal submissions are based on advice of counsel believed to be true"), and where they have not explained the source of the legal submission, and furthermore, the petitioners

have merely stated that "... the contents ....are to my knowledge". But meaning thereby not necessarily true to his belief), and since the affidavits executants have been identified by the same counsel ( Mr Abhinav Lal) who, in all probability, has drafted the two affidavits, and since the counsel would assuredly know the facts as well as the points in law on which the petition and the application are based to be untrue, hence, either the counsel is acting merely as a "mouthpiece" of his client (which is specifically and expressly forbidden by Rule 4 of Section 1 of Chapter II, Part VI of the Bar Council Rules), and/or it is (strangely) the client (the deponents) who is advising and/or instructing the counsel to "advise" the client in a "particular" manner, or- even worse- the counsel(s) is/are also party to the falsities set out by petitioner no.1 and petitioner no.2 in the petition and the accompanying applications with deliberate intent to mislead this Hon‟ble Court.

As the applicant understand and have reason to believe that the counsel(s) in this matter is/are not conducting the litigation pro bono, thus, it cannot be said with any degree of certainty that his/thierpecuniary interests are divorced from his/their motives behind filing the petition in this particular way, which is replete with falsehoods.

Therefore, the whole truth can only emerge when the counsels are also summoned by this Hon‟ble Court in the capacity of witnesses to the explanations to be furnished by petitioner no.1 and petitioner no.2 during cross examination.

15. That the imperativity behind this application is reinforced by the fact that petitioner and his associates are already facing perjury proceedings in four separate petitions awaiting adjudication before this Ho‟ble Court (Crl. Misc. (Co) Applications Nos. 3,4 and 5 of 2008., and 1 of 2009), but the ppunitive consequences of their

actions simply do not seem to act as a deterrent against their continuing conduct which is of a blatantly- contumacious and repetitive and/or continuing nature.

16. That the gravity of the matter is further enhanced in view of the fact that the applicant now has incontrovertible evidence that some or even all the counsels appearing in the matter are party to the criminal acts of their clients to perpetrate a fraud upon the applicants. Thus, these counsels can no longer lay defence to the provisions of Section 126 of the Indian Evidence Act, because now their conduct is squarely hit by proviso (1) and (2) of the same Section, read with illustrations (b) and/or (c) of the same."

5. Para 18 of the application also refers to a "formal caution to the

counsels" stated, by Mr Khosla, to have been sent by him vide e-mail

dated 30.04.2017. The said e-mail is principally addressed to Mr Kirti

Uppal, Senior Advocate, who has been appearing on behalf of the

petitioner and against Mr Khosla in these proceedings. The following

passages from the said e-mail merit reproduction in extenso:

"As counsel who has been appearing for Vikram Bakshi group, inter alia, in Crl.M.C. No. 1143 of 2017, I would like to bring some important matters to your kind attention before the issue escalates into something that is, clearly, not within the definition of an "amicable professional atmosphere" between advocate or litigating parties:-

1st ISSUE-MAKING FALSE CLAIMS IN COURT:-

1. Firstly, perhaps acting suo moto or on the dishonest urging of advocate Anand Mohan Mishra and/or Advocate Abhinav Lall, etc. you have taken it upon herself to prove the Court with what is downright misleading information, namely, that by virtue of the order dated

24.04.2012 passed by a Division Bench of the Hon'ble Delhi High Court in LPA No.24 of 2012, all matters between the parties still stand stayed, and therefore, the complaint could not have been proceeded with at all.

2. In fact, you have been made categorical assertions to the effect that the complaint in which the summoning order dated 06.02.2017 was passed by the learned trial Court was "surreptitiously passed" by me, by not disclosing the existence of the stay order previously passed on 24.04.2012.

3. In context of the above, I'm bringing to your attention that the "omnibus" stay order passed on 24.04.2012 was vacated by operation of law with effect from 13.01.2015 passed in CCP No.165 of 2008. This is well known to your briefing advocate, who is always accompanied by Advocate Anand Mohan Mishra.

4. I'm also bringing it to your attention that it is very much in the knowledge of your briefing advocate(s) that all the matters between the parties, by operation of law, are being proceeded with by both parties, and with full force.

5. In light of the above, please do your Due Diligence on this aspect, because it you attempt to make submissions which can only be termed (at least hereafter) as an intentional attempt to mislead the Hon'ble Court and waste its valuable time, take note that I will be pressing for criminal contempt of Court charges, read with perjury, inter alia, prosecutable under Section 209 of the Indian Penal Code against all concerned.

6. Please note that "acting on instructions" does not absolve even a Senior Advocate from recriminatory action by the Hon'ble Court if it can be demonstrated that he is knowledge misleading the Court, as would also be clear from an incident of the Hon'ble Calcutta High Court, elaborated upon in paragraph 8 below, which Hon'ble High Court has issued a Section 340 Cr.P.C to a Sr. Advocate practicing before it as well.

7. Before you decide a display any machismo (or whatever be the advocacy equivalent of the same) and frame a snarlingly (or "sneeringly") "fitting" reply, you would be well-advised to read Section 209 of the India Penal Code first. For the simple reason that the submissions made by you in Court to the aforesaid effect are downright false, and I find it impossible to believe that you were not aware of this

(though now, you can lay claim to no such defence at least hereafter). Read:

209. Dishonestly making false claim in Court:- Whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in a Court of justice any claim which he knows to be false, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.

8. And perhaps this link may be of some help, or at least of interest, given that the Hon'ble High Court of Calcutta, acting inter alia, on Section 209 Indian Penal Code, has issued notice to 22 individuals on 18.04.2017 under Section 340 of the CrPC for perjury and criminal contempt of court, which include 13 lawyers, of whom one is a formally-designated Senior Advocate, and 9 are partners of the largest law firm in the country (on the principles of agency read with abetment):

http://www.legallyindia.com/the-bench-and-the-bar/khosla-files- perjury-and-contempt-case-against-each-individual-khaitan-co- partner-also-complains-to-west-bengal-bar-council-00011130- 8466#comments.

9. Lastly, please read some judicial precedents on conduct of advocates (reproduced below), and how advocates, too, are liable for their conduct in Court. (Of course, that may sound like Greek of many lawyers who practices in India, but fortunately, there is a lot of Latin in the precedents reproduced below as well; and Greek and Latin are close).

10. Why this judgment is of special relevance in the present scenario is because Justice Midha of the Hon'ble Delhi High court has extensively drawn on a judgment of the Supreme Court of Singapore when it dealt with imprisonment for a Singaporean lawyer (incidentally, of Indian origin) for making false claims on behalf of his client, which is the country where McDonald's AOR (Mr.Ang I- Ming) has (presumably) obtained his degree in law from. (PS: And please don't ho-hum bore me with a reply replete how you feel that I should be doing the same; because if such reply is supposed to reflect your combativeness, do save it-and your energy-for the Judge for 02.05.2017, as you will surely need it then)."

6. While arguing his application, Mr Khosla advanced lengthy

submissions on the main dispute between the petitioner and himself,

with an effort to establish that the stand take by the petitioner, in the

pleadings contained in Crl. M.C. 2493/2017, was contrary to the

record. The endeavour of Mr Khosla, in doing so, was to canvass the

proposition that counsel drafting the pleadings, as well as counsel

arguing the matter in court, had a duty cast on them to thoroughly

study all the facts, and draft no such pleading/argue no such

proposition as could be belied by the facts on record. Else, according

to Mr Khosla, it would amount to actionable dereliction of duty on the

part of counsel, and an abdication of their function as officers of the

court.

7. I am entirely unable to fathom how the said contention of Mr

Khosla, even assuming it to merit any consideration, could justify a

prayer for audio/vide-recording the proceedings in court. If

submissions contained in pleadings, or argued in court, are contrary to

the facts on record, that would be an aspect to be pleaded, and argued,

by the opposing party/counsel. There is no requirement, whatsoever,

either in fact or in law, for audio- or video-recording the proceedings

merely for this reason.

8. A well-considered and comprehensive pronouncement, on

whether court proceedings should be allowed to be audio- or video-

recorded, is to be found in the somewhat recent decision of the High

Court of Bombay in Sunil Shantisarup Gupta v Department of Legal

Affairs, MANU/MH/2221/2016. The following passages, from the

said decision, are instructive and relevant:

"10. Pertinently none of the parties and seeking above reliefs have pointed out any right vested in them by law which would enable us to issue the writ prayed for. It is too well settled to require any reference to judicial precedents that a writ of mandamus is issued for enforcement of some legal right. There should be a legal right vesting in the party and of which breach is complained. The failure to redress the wrong or correct such breach enables it to take recourse to this remedy. Thus, it cannot be urged in the absence of any legal right that this Court must issue the writ as claimed. The Petitioners have failed to establish any such right. No relief not founded on law, but merely on broad principles as are narrated above can be granted.

11. Apart from the above, what we find is that both the Petitioners are aware that the decisions of the nature referred by them, namely, ordering and directing audio and visual recording of Court proceedings or a live telecast thereof are in the realm of policy. It cannot be made applicable to all Courts nor can all Presiding

Officers be compelled or directed to allow such recordings in the absence of a mandate flowing from law or a clear and defined policy having force of law.

12. The order of the learned single Judge of the Delhi High Court relied upon by the party-in-person would reflect that it was based on a transfer application. The transfer was directed on account of a reasonable apprehension entertained by the parties that they would not get justice and in an atmosphere which was charged. Therefore, the proceedings were transferred from a Court in Delhi to another Court in Delhi itself, namely, the Court of District & Sessions Judge, Patiala House Court, New Delhi. In paragraph 10 of the order passed by the learned single Judge on the transfer writ petition dated 30th November, 2015, by consent of parties, the District & Sessions Judge was requested to videograph the entire proceedings in the trial to be conducted before him. The private Respondents undertook to cover the costs of the video recording and that is how without the order being treated as a precedent of any nature for future cases, the transfer petition was disposed of.

22. It is erroneous to assume that the principle that justice should not only be done but must be seen to be done is violated because of lack of live recordings or live telecast on day-today basis of the proceedings in a Court of law or refusal to allow parties to audio-visually record the Court proceedings. That justice is done and must be seen to have been done is a principle evolved not on the basis of open access to Court proceedings only. That is a guarantee more fundamental or far reaching than what the Petitioners in this case assume to be. That is a guarantee to the litigant and parties that justice would be meted out to them and even if they do not have the means and resources nor are they mighty and powerful that they will leave a Court with an impression that they have not been treated fairly and equally. That is ensured at all

costs by a Court and a Presiding Officer. That is not in jeopardy merely because the Court proceedings cannot be recorded live.

27. One must sound a note of caution and need not be necessarily enthusiastic given the state of literacy and understanding of the Court proceedings in India. The repercussions and ramifications of allowing live telecast or live recordings of certain cases or in general would be far too serious bearing in mind the sensitivity of matters in Court. Criminal and civil trials involving individual dignity, reputation and status if telecast live and as a matter of routine not only exposes parties before the Court but provides opportunity to the viewers to peep into their private disputes and render judgments about their conduct and character. We have already seen in numerous instances of famous trials and Court cases inviting strange reactions and responses from the viewing public. Sometimes a trial of a criminal or a civil case evinces so much interest and generates such feelings that people in India are known to perform extreme acts. The Hon'ble Supreme Court noted that the impact of print and electronic media so also the medium of cinema is so enormous that people have repeated the stunts and the roles in real life."

9. G.S. Patel, J., in his concurring judgment in the same case,

observed, in his inimitable fashion, thus:

"40. It is difficult to accept any part of this argument, as its foundational construct is so utterly and egregiously misdirected. Nobody suggests that courts are free from error. Throughout recorded human history, they never have been. The annals of mankind's progress are littered with instances of courts in error. Yet judicial systems, adversarial or otherwise, have endured and are an

integral to what we now accept it means to be a 'civilized' and 'civil' society. All known and recognized judicial systems acknowledge the possibility of error. Therefore: courts of appeal, and provisions for review and revision, all in-built corrective mechanisms. There are permissible and legitimate steps available to all courts to correct course. This has worked for two millenia. It works still. There is no basis for the assertion that without video recording some great evil will continue to be perpetrated. The authorities and precedent quoted in Dharmadhikari J's judgment speak again and again of publicity. This does not mean advertising. This does not mean more than keeping the process open and transparent. Video recording adds nothing to this, and takes away a very great deal, as we shall presently see.

41. I see the Petitioners' statements against our judicial processes as far from neutral. They operate only on a single, fatally flawed assumption: that while Courts and judges are arbitrary, unreasonable and untrustworthy, other pillars of a free, open and democratic society are always and invariably balanced and responsible. In particular, public media is reliable, fair and even-handed. Nothing in our collective experience suggests this to be even remotely true. There is no dearth of recent experience that speaks to wholly unbalanced 'trials by media', where the legitimate and legally sound determination of cases is attempted to be forced into imbalance by creating a fear of whipped up public odium. We note, with no little dismay, that there is no reflection of this at all in the Petitions before us. Structurally and operationally, the submissions assume that there is not the slightest risk of misrepresentation or misinformation were judicial proceedings to be sent out 'live'; that viewers would watch the entire process through; that there is not the least chance of a lopsided or sensationalist media coverage of a single incident, assertion or piece of evidence affecting the judicial

determination of a complex case. We do not think this is accurate. We have already seen much second-guessing of judicial orders and a resultant undermining of public confidence in the judiciary. There are instances of brash news anchors unable to distinguish between bail and acquittal, of equating the former with what is popularly called 'a clean chit' and consequently raising sub-silentio question marks over the competence and integrity of our judges.

45. Our judicial system is adversarial, not gladiatorial. Our courts are not the amphitheatres of Roman times, though much of our law is descended from Roman law. What happens in Court on a minute-to-minute basis is often unrelated or tangential to the final result. The Congressional Report Services report of 2006 quotes Chief Judge Edward Becker of Third Circuit Federal Court of Appeals as saying:

"The oral argument process is very intense, rigorous. It's rough. Judges play devil's advocate. Sometimes you deride a counsel's argument so as to bring him or her out and to test the argument. You do it to both sides."

46. This dialectic of questioning, probing, testing is constant. Taken out of context, a single question, sometimes sharply worded, from the Bench is apt to be misread. The entire context and colour changes. Our attempt as judges is to remove emotion from the judicial decision-making process. As Jonathan Temm, once President of the New Zealand Law Society, observed, television coverage re-introduces emotion. The focus of live telecasts, he argued, was to provide entertainment. This can only erode confidence in the justice delivery system and foment public odium for a given accused or a litigant long before the final decision or verdict.

47. We wonder what the Petitioners before us, and Mr. Nedumpara himself in particular, would make of what

appears to us to be the inevitable consequence of an acceptance of his proposal; this one in particular: that, being on 'candid camera', lawyers would also be forced confine their arguments to pre-decided time limits. Counsel at our Bar do tend to go on a fair bit -often quite an unfair bit - wearyingly covering the same ground ad infinitum. They do this possibly in the belief that constant repetition might yield a quasi-Gobbelsian result of, if not penetrating a judicial mind that lawyers will, as is their wont, later describe as especially dim, then at least exhausting it into wearied acceptance.

48. Also, some Advocates tend very often to be obstreperous, even downright obnoxious. Courts and judges know how to deal with such situations: selective deafness, a gentle chiding, something light-hearted and, if it gets too much, "Move along, Mr. So-and-So". Sometimes, a fleeting moment of good-natured levity defuses a potentially volatile exchange. At other times, there is a passing moment of waspishness. It happens on either side of the Bar. Both sides know well to take these moments in their stride and to not make over much of them. In live broadcasts, these moments are likely to be taken wholly out of context and out of proportion. With cameras omnipresent, many lawyers, perhaps tempted into seeing this as a shot at some sort of two penny publicity, would give free rein to their thus far thankfully constrained histrionic tendencies. That is unlikely to be very helpful from any perspective.

49. Our Petitioners suggest that video archives would be valuable resources. Perhaps; but resources for what, apart from needless finger-pointing and catching imagined and imaginary slights? It seems to us a colossal waste of time to be forced to sit through hours and hours of tedious digital archives to find something that is likely to be wholly irrelevant, given that the entire process is

already sufficiently open, and the result is out in plain view.

50. The talk of 'greater transparency' is meaningless. Courts do not operate as star chambers, functioning in secret and behind closed doors, except in those exceptional circumstances where the law specifically allows an in camera proceeding or where the judge exercises an inherent jurisdiction to so order it. As a general rule, all Courts are open to all; that, as Dharmadhikari J points out, is the settled mandate of the law. A person who has nothing whatever to do with any given case is entitled to attend court and to observe those proceedings for himself. The entire process is open to everyone. Orders and judgments are in the public domain, unprotected by either copyright or password. Media reportage of cases is permitted. In a number of recent cases, considered by the media to be 'high profile', there have been instances of reportage going out live from within the court room on social media: Twitter and Facebook updates and so on. There is little that can be done about this. But this much is also true: Courts are open to those who trouble themselves to come to them, and who care to conduct themselves with the decorum and solemnity required of judicial proceedings. It is one thing to afford everyone a right to come to Court. It is quite another to take that Court into everyone's living room. The Constitutional right to freedom of speech and expression, and the freedom of press do not demand the admission of television crews into a courtroom. Those Constitutional guarantees are sufficiently satisfied as long as courts are freely open to all. The Petitions make a fundamental error about the judicial process. This is a solemn, serious business, one that requires care, caution and thought. It is most emphatically not entertainment and nothing ought to be done that would even minimally risk turning a court into a circus.

51. The comparison with Parliamentary proceedings is inapt. Parliament is not in fact open to all in the same way our courts are. Besides, this parallel is most curious and, in the context of the presentation before us, self- defeating: we see little indication that televising Parliamentary proceedings has had the kind of salutary effect which the Petitioners claim to be an inevitable result of recording and transmitting. Indeed, the 'effect' we see is precisely the kind that so many courts and judges have deplored: a slice here, a nugget there, and very often, not enough context.

52. There is the very real danger of 'splicing'. I use this term to refer to a process of taking a truncated, out-of- context chunk of data and presenting it with another, with an all-important omission in between. This is the kind of thing that is necessary in television programming perhaps, but which is likely to have unintended repercussions and implications to a general lay public. This is particularly so in trials. We, as judges and lawyers, know only too well that trials are unpredictable. A trial's path twists and turns through its progression. A litigant's fortunes may rise one day only to flounder the next, or even a few minutes later. Lawyers and judges are trained to take this in their stride, and to make no assessment till the entire trial is complete and all the evidence is in. Then begins the process of analysing that evidence, collating it, and presenting it to the Judge in a particular fashion, of advocating a particular interpretation, suggesting one particular sequence of causality as preferrable to another, and cushioning all this in the framework of what the law allows and does not allow. These are necessary safeguards; and it is to prevent a 'splicing', a stripped-from-context dissemination of nuggets of evidence yet in the process of being gathered, that we in this Court do not allow the public availability of evidence transcripts. Ensuring that the right to a fair and impartial hearing or a trial is never

compromised is the paramount responsibility of a court. That responsibility is entirely compromised, and those essential rights threatened and curtailed, by allowing televising of our proceedings. The impact on parties, witnesses and judges is bound to be severe.

53. There is one critical aspect that the Petitioners overlook: the independence of the judiciary. This independence is not only from executive interference. It also means, at a deeply personal level, that a judge must be unafraid to judge, and must be sequestered to the extent possible from external influences. Far worse than a lazy judge is a timid or intimidated judge; the former can at least once in a while be goaded into making a determination. Possible public pressure by daily coverage of court proceedings, followed by commentaries (sometimes savagely mounted, unthinking and harsh) only add to the burden of all judges. When I speak of judges, I speak not only of those in the High Court and the Supreme Court. I speak, too, of judges across the entire echelon of the hierarchical system: magistrates, civil judges, district judges, judicial officers at every level. Already these judges are under severe pressure. We all know of many in our own judiciary who have suffered terribly when handling sensitive trials. We all know of some who lost their lives because of the sheer strain. And we all know, too, of the kind of pressures that are brought to bear on them and just how vulnerable these judges are. These are, of course, pressures that attempt to operate in the shadows. We combat them as best we can. I see no reason to add to our judges' burdens by subjecting them to more vociferous and publicly unabashed influences.

54. Paragraph 42 of Mr. Nedumpara's petition is indeed strangely worded. It speaks of recording every utterance, every gesture during the course of a hearing. I can think of little more reprehensible than this. What, in short, the Petitioners seek is to strait-jacket the

proceedings in court for one and only one purpose: to develop a weapon with which to pillory and terrorize judges and so to wholly compromise the judicial decision-making process. What the Petitions say to judges is this: "Watch out. You are on candid camera. We will drag you before the public if you dare contradict us." All this, knowing that before the general public, and in public media, judges are the most voiceless in public service. We speak through only through our judgments. We cannot defend them in public forums. What the Petitioners seek is not the right to criticize judges' decisions - that is a right given to all - but the opportunity to flog judges in the market square.

55. Neither Dharmadhikari J nor I suggest that there can never be video recordings at all. We do not advocate any such absolute or blanket ban. We just do not support these proposals for absolute and compulsory recording; and we most resolutely do not approve of any 'live' telecasts. In a given case, a video recording for that particular case, or for one particular day, may be necessary. There is no need to fear the technology itself. But it requires the consent of all, lawyers, litigants and the Judge. Each one has a complete veto. Sitting singly, I myself have allowed video recording in at least one trial. I found it necessary in that case because the principal witness had a speech impediment. Both sides agreed on the proposal. None of those proceedings were, however, televised. The day's recordings were kept securely in Court and were not accessed except in Court. The only use we made, together, was for reference, to correct the day's transcripts. In three other cases, I have used a videoconferencing link to complete a long-delayed trial where the witnesses in question were overseas and could not travel to India. That, too, was by consent. In one custody dispute, I spoke with the child over Skype. But what of it? None of this was with a view to any of the so- called 'benefits' that Mr. Nedumpara and Mr. Chugani

extol before us. All of it was directed to a single end: the needs of that particular case. Not the needs of the general public to be entertained. These are Courts, not stages and sets and props from The Truman Show. This is a judicial proceeding of the utmost solemnity, not The Hunger Games.

56. With no assurance or guarantee of a preservation of a day's proceeding, or of following a case 'from gavel to gavel', the dangers of half-information, misinformation and misdirection are not to be underestimated. This is precisely the failing of the Petitioners' submissions before us. There is a clear difference between a litigant or a lawyer or even a member of the public attending Court and of the general public using courts as spectacles or arenas for amusement, diversion and entertainment. The dangers we speak of risk reducing the gravity, solemnity and dignity of these proceedings into something bordering on the farcical, and even more deadly, the ignominious. I see no reason to permit this."

9. I record my respectful concurrence with the above views of the

Bombay High Court which, in my opinion, admirably answer the

prayer for video-recording of proceedings, supposedly as a measure

for infusing transparency.

10. Be that as it may, inasmuch as the asseverations so assiduously

cavassed by Mr Khosla at the bar find no place, whatsoever, in the

body of his application, it is not necessary to delve in detail into their

specifics. Suffice it to reiterate that, in the perception of this court, the

averments contained in the present application, even if read in

conjunction with the submissions made by Mr Khosla at the bar, do

not make out any case for issuance of any direction to video/audio

record the proceedings or to have them transcribed by multiple court

stenographers. Even if it were to be assumed that the pleadings in a

given case, or arguments advanced before court therein, were contrary

to the record, or even patently perjurious in nature, that would not

make out a case for directing the video/audio recording of the

proceedings. It is always open to every litigant to produce all

evidence, available with her or him, in rebuttal of the stand taken by

the opposite party, or to point out, on the basis thereof, the unfairness,

or even falsehood, of such stand. These are maters for argument and

evidence, and cannot be a basis to claim that the proceedings require

to be and video-recorded or audio-recorded.

11. Mr Khosla has chosen to place reliance on the following

judgments to support his prayers in the application:-

(i) judgment, dated 15th July 2015, of the High Court of Calcutta in

Angelo Brothers Ltd v. The Official Liquidator,

(ii) judgment, dated 30th November 2015, of this court in Joginider

Singh v. C.B.I., and

(iii) judgment, dated 5th November 2009, of the High Court of

Punjab and Haryana in S.P.S. Rathore v CBI.

12. None of the above decisions, in the opinion of this court, can

support the prayer of Mr Khosla.

13. The judgment of the Calcutta High Court in Angelo Brothers

Ltd (supra) specifically states that the learned Judge was allowing the

prayer for video recording "as there was no objection from the learned

Advocates appearing for the different parties". Even so, the court was

cautious to clarify that the proceedings would not form part of the

official record of the court.

14. The judgement of this court in Joginder Singh (supra) has

rightly been distinguished, by the Bombay High Court, in para 12 of

the decision in Sunil Shantisarup Gupta (supra), and I express my

respectful concurrence therewith. That apart, para 10 of the judgment

in Joginder Singh (supra) also indicates that it was "with the consent

of the parties appearing before this court" that the learned District and

Sessions Judge was requested to videograph the proceedings. This

aspect was re-emphasized in para 12 of the order which again

clarified, obviously by way of abundant caution, "that the above order

has been occasioned in the interest of justice and with the consent of

parties appearing before this court".

15. Similarly, the decision of the High Court of Punjab & Haryana

in S.P.S. Rathore (supra) records that there was a joint statement of

all the learned counsel in the matter, recording the terms of consensual

arrangement for conducting of the proceedings, clause (f) of which

specifically stipulated that the court would hold in-camera and on-

camera proceedings. The application was disposed of in terms of the

said consensual agreement.

16. It is transparently obvious, therefore, that the decisions relied

upon by Mr Khosla to support his prayer for video recording/ audio

recording of the present proceedings, directed such recording only

because all counsel appearing in the said cases consented to the said

arrangement. These orders cannot, by any stretch of imagination, be

read as postulating any legal principle to the effect that audio/video

recording of the proceedings should mandatorily be allowed, or even

advising such recording. No vestige of any such consent, or

concurrence, however, exists in the present case; neither does Mr

Khosla so plead.

17. In view of the reliance, on the said decisions, by Mr Khosla, I

queried, from the learned Senior Counsel appearing for the

respondents in this matter i.e. Mr Kirti Uppal and Ms Rebecca John,

whether they were consenting to video recording of the present

proceedings. Both learned counsel categorically responded in the

negative, and pointed out that Mr Khosla had, on earlier occasions as

well, failed in obtaining concurrence of this court thereto - a matter to

which I shall advert presently. In any event, it is clear that the

reliance, by Mr Khosla, on the above pronouncements of the High

Court of Calcutta, the High Court of Punjab and Haryana and of this

court, is, in the circumstances, totally misplaced.

18. I reluctantly turn, now, to a somewhat disturbing aspect of the

matter.

19. As already noted hereinabove, the present application does not

represent the first occasion when such a prayer has been made by Mr

Khosla. This court had occasion to examine similar prayers, made by

him, at least on two earlier occasions, as manifested by the judgment

dated 9th August 2011 in WP(C) 12787/2009 and order dated 12th

December 2014 in Review Petition 188/2014, both rendered by

Division Benches of this court.

20. The judgment, dated 9th August 2011, in WP(C) 12787/2009,

specifically dealt with a prayer of Mr Khosla for being permitted to

"non-intrusively audio record judicial proceedings that involved his

participation before this court and to so recorded by himself or

through his Advocate on record". Para 4 of the said decision records

submissions made by Mr Khosla on the said occasion thus:

"4. Mr. Deepak Khosla, the Petitioner appearing in person, submitted that the audio and video recording would not involve substantial cost and there is no

involvement of any kind of infrastructural improvement and it should be done for the sake of transparency. It is his further submission that the said audio and video recording would show an undeniable and objective record of what transpired in Court. It is propounded by him that it would hasten the dispensation of justice and fructify the hopes of the litigants. He has brought on record certain calculations to demonstrate how it will be cost effective. It is highlighted by him that in a progressive and civilized society, audio and video recording would add more transparency to the justice dispensation system. He has referred to certain paper cuttings to show that in United Kingdom, the Supreme Court proceedings are being televised where Justices are seated at eye level with the lawyers and the visiting public in the court rooms. He has commended us to the decision in State of Punjab v. Geeta Iron & Brass Works Ltd., AIR 1978 SC 1608. Mr. Khosla has also referred to various speeches of eminent jurists which pertained to the Court proceedings and the conception of transparency."

21. The decision of this court on the said request of Mr Khosla as

contained in para 7 of the said judgment, reads as under:

"7. In the case at hand, the Petitioner does not have a legal right which is provided for under any enactment, common law or by rules or orders which have the force of law. He has advanced his arguments on the basis of transparency. Needless to emphasise, the material brought on record pertains to the practice followed in other countries and the Petitioner's personal belief as he has been litigating many cases before this Court. In a way, he has made an adroit effort to give sermons in the name of transparency. An individual sermon cannot earn the status of any law. What is canvassed by him is that the audio/video recording process will curtail the Courts'

time and the submissions would be luculent and there would be saving of the proceedings for future. The feelings of the Petitioner have not yet been codified into a law by the Legislature. Hearings in Court take place in open court except where it is stipulated by the statute that proceedings shall be taken in camera or in certain cases of habeas corpus or matters relating to chamber proceedings. They are different from recording of proceedings in open court by way of audio/video recording. There is no rule in that regard. Framing of a rule is a matter of policy. Someone can have a grievance when there is a rule which is not followed and the litigant's legal right is affected. Therefore, no mandamus can be issued to the Respondents for audio and video recording of the Court proceedings."

22. Resultantly, the request of Mr Khosla was declined.

23. Undeterred, Mr Khosla repeated his request before another

Division Bench of this court while arguing Review Petition 118/2014.

The submissions of Mr Khosla, on that occasion, are encapsulated in

para 7 of the decision of this court which is reproduced thus:

"7. On 12.09.2014, (when the Court, after hearing Mr. Khosla, reserved judgment in the writ petition) it was argued that this Court is under a duty to record or permit video recording of the proceedings, to promote transparency and eliminate the possibility of error, as well as avoiding situations where counsel and parties urge certain grounds in oral hearings, which are not reflected at all in the judgment delivered in the matter, on account of not being recorded in Court, as there is no system of transcribing oral submissions. Mr. Khosla referred to the view of the previous elected Government

of Delhi, which had - as a policy decision - decided to require video recordings of court proceedings. It was argued that the public interest in favour of such recording of court proceedings promotes the concept and idea of open court, and brings veracity and transparency. In the long run, it cuts down the hearing time and eliminates frivolous arguments. The other contentions by Mr. Khosla were summarised in the order recorded on that date and are extracted below:

„Mr. Khosla resumed his arguments in the review petition, and during course of submissions, urged that there is no bar with respect to audio video recordings of arguments in Court and that this aspect is integrally connected with the hearing of the present review petition. He relied upon the reply to RTI queries given by the Delhi High Court establishment about existence of Rules and pointed out that the Mediation rules contain a bar. Likewise, he made submissions with regard to the issuance of the Circular by the Chairman of the Company Law Board on 20.02.2014. Mr. Khosla further drew the attention of the Court and relied upon the judgment of the Court passed in W.P.(C) 12789/2009 dated 25.02.2011 and stated that the final order was premised on the existence or otherwise of a duty and not on the merits of the audio recording of proceedings by the Courts. He pointed out to the Court that in other proceedings, permission has been granted by the District Judge at certain points of time pursuant to which audio recording was conducted in matters pending before the Metropolitan Magistrate. He also relied upon the decision taken by the then Law Minister of the Government of NCT of Delhi on 13.02.2013 whereby the proposal to amend Section 153B of the CPC to enable recording of Court proceedings and its publication, was made. Reliance was also

placed upon the order of the Punjab and Haryana High Court in S.P.S. Rathore v. C.B.I, Criminal Misc. No. M-21101 of 2008 dated 5.11.2009 where video recording of a criminal trial was permitted.‟ "

24. The following findings were returned, by this court, in its

judgment in the aforementioned Review Petition 118/2014, for

rejecting the prayer of Mr Khosla for video recording of the

proceedings:

"13. As regards the submission of Mr. Khosla, that Court rules and procedures should facilitate, nay, enable video recording of proceedings because of the public interest in transparency, this Court is of the opinion that a review petition cannot be a platform to consider such substantive aspects. The merits and demerits of such a decision have to be deliberated and considered at a wider plane as it involves a balance between the individual rights of litigants, or even a class of them who wish it, and those, whose interests the Court would be obliged and duty- bound to protect, given the volume and diversity of litigation that the judicial system has to deal with in the country. The views expressed and the experience gained in other jurisdictions, which have challenges based on their own societies, while providing some guidance, cannot define what ought to be done in this respect, considering the number and variety of cases that courts have to adjudicate in India - even the number of applications and repeated listings of a single case which the court has to deal with. Therefore, anecdotal references to some instances where courts agreed to permit video recording, cannot be viewed as precedent that compels the judicial system to adopt that course. Equally, the policy choice indicated in a Govt. of NCT memo which did not translate into anything more -

certainly serious enough in that it undermines the autonomy of courts to regulate their proceedings - cannot be an argument to compel video recordings, as a policy to be followed universally, or to permit such video recordings."

25. Learned Senior Counsel appearing for the petitioners-non-

applicants took serious objections to the absence, either in the body

of the present application of Mr Khosla or during the argument

advanced by him thereon, before me, of any reference to the

aforementioned two decisions, which were rendered by the Division

Benches of this court on an identical prayers made by Mr Khosla on

earlier occasions. The objection is, undoubtedly, well taken. It is

required to be recorded, in this connection, that the arguments

advanced by Mr Khosla, before me, over nearly two hours, dealt

almost entirely with the facts of his substantive petition, without

making any reference to the afore-mentioned decisions of this court

in WP(C) 12787/2009 or Review Petition 118/2014. It was

specifically queried, by me, of Mr Khosla, whether he had completed

his submissions and, on his answering in the affirmative, I sought his

explanation as to why he had suppressed, from the present

proceedings, the earlier decisions of this court in his own case. The

response of Mr Khosla was that the standard of disclosure which

apply to counsel are different from those which apply to a party

arguing in person; while it is the duty of the counsel to disclose all

necessary facts in the body of the pleadings, a party arguing in

person, in the submissions of Mr Khosla, could afford the luxury of

concealing material facts in the pleadings and reserving disclosure

thereof till the stage of oral argument. On the attention of Mr Khosla

being drawn to the fact that, even during oral arguments, he had not

disclosed the fact of the aforementioned two decisions having been

passed by this court, Mr Khosla's belligerent response was that he

had further submissions to make, but that, if his application had

anyway to be dismissed, he himself could provide twenty-one other

reasons for doing so.

26. This court is unaware of any principle of law or procedure to

the effect that the standard of disclosure, in proceedings before a

court, are different, in the case of counsel, as compared to party

arguing in person. That apart, it is obvious that Mr Khosla cannot

seek support of any such distinction, even if it were assumed to exist,

as he is himself a counsel of several years standing, and is

undoubtedly well versed in the nuance, and niceties of the law and

of court procedure. The awareness, by Mr Khosla, of the

requirements of law, cannot stand eviscerated merely because he

removes the cap of counsel and dons that of petitioner arguing in

person.

27. The temerity of Mr Khosla can be gleaned from the pointed

reliance, placed by him, on the judgment of the High Court of

Punjab & Haryana in S.P.S. Rathore (supra), concealing the fact

that he had relied, on the very same decision, before this Court while

arguing Review Petition 118/2014, and failed to convince the court.

28. In the circumstances, this court is constrained to record,

regrettably, that the present application of Mr Khosla amounts to an

attempt at adventurism, and to plainly abusive of the process of law,

apparently with a view to protract the proceedings and avoid a hearing

on the substantive petition.

29. The conduct of Mr Khosla, in re-arguing an issue, on which he

has already attempted, and failed, to convince this court at least two

earlier occasions, without disclosing the said fact, is strongly

deprecated.

30. While the above recitals constitute more than sufficient ground

to dismiss the present application, this court is further constrained to

note that the tone and tenor of the allegations levelled by Mr Khosla

against counsel, including senior counsel, especially in his e-mail

dated 30th April 2017, are objectionable and are practically an attempt

at insult, rather than a reflection of injury. This court has, on several

earlier occasions, been constrained to comment on the conduct of Mr

Khosla, to the extent that an embargo, on his appearing before court,

for a year, had also to be issued; however, those decisions are not

strictly material for deciding the present application and no further

reference is, therefore, being made thereto. Mr Khosla would,

however, be well advised to be more temperate and civilized in his

communications, oral as well as written.

31. In the circumstances, the present application of Mr Khosla,

seeking video recording of the proceedings before this court, or

transcribing of the proceedings by multiple court stenographers, is

dismissed with costs, quantified at Rs. 20,000/-, to be deposited with

the Prime Minister's Relief Fund within a period of two weeks from

today.

Certified copies of the order may be provided to learned counsel

appearing for the petitioner and Respondent No.1, and to Mr.Deepak

Khosla.

C. HARI SHANKAR, J

JULY 18, 2017 kb