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Trial Media Crime

Trial Media Crime

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Published by: fkkfox on Aug 19, 2013
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08/19/2013

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LAW COMMISSION OF INDIA
200
TH
REPORTONTRIAL BY MEDIAFREE SPEECH AND FAIR TRIAL UNDER CRIMINAL PROCEDURE CODE, 1973AUGUST 2006
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JUSTICE M. JAGANNADHA RAO
 
LAW COMMISSION OF INDIA
 
CHAIRMANSHASTRI BHAWAN NEW DELHI-110001TEL: 23384475FAX: 23073864, 23388870E-MAIL:ch.lc@sb.nic.inRESIDENCE: 1, JANPATH NEW DELHI-110011TEL: 23019465
F.No.6(3)/124/2006-LC(LS)31
st
August, 2006Dear I have great pleasure in presenting to you the 200
th
Report of the LawCommission on “Trial by Media: Free Speech Vs. Fair Trial Under CriminalProcedure (Amendments to the Contempt of Court Act, 1971)”. The subjectwas taken up suo motu having regard to the extensive prejudicial coverageof crime and information about suspects and accused, both in the print andelectronic media. There is today a feeling that in view of the extensive useof the television and cable services, the whole pattern of publication of news has changed and several such publications are likely to have prejudicial impact on the suspects, accused, witnesses and even Judges andin general, on the administration of justice. According to our law, asuspect/accused is entitled to a fair procedure and is presumed to beinnocent till proved guilty in a Court of law. None can be allowed to prejudge or prejudice his case by the time it goes to trial.Art. 19(1)(a) of the Constitution of India guarantees freedom of speech and expression and Art. 19(2) permits reasonable restrictions to beimposed by statute for the purposes of various matters including ‘Contemptof Court’. Art. 19(2) does not refer to ‘administration of justice’ butinterference of the administration of justice is clearly referred to in thedefinition of ‘criminal contempt’ in sec. 2 of the Contempt of Courts Act,1971 and in sec. 3 thereof as amounting to contempt. Therefore, publications which interfere or tend to interfere with the administration of  justice amount to criminal contempt under that Act and if in order to
 
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 preclude such interference, the provisions of that Act impose reasonablerestrictions on freedom of speech, such restrictions would be valid.At present, under sec. 3(2) of the Contempt of Courts Act, 1971 readwith the Explanation below it, full immunity is granted to publications evenif they prejudicially interfere with the course of justice in a criminal case, if  by the date of publication, a chargesheet or challan is not filed or if summons or warrant are not issued. Such publications would be contemptonly if a criminal proceeding is actually pending i.e. if chargesheet or challan is filed or summons or warrant are issued by the Court by the date of  publication. Question is whether this can be allowed to remain so under our Constitution or whether publications relating to suspects or accusedfrom the date of their arrest should be regulated?Supreme Court and House of Lords accept that prejudicial publications mayaffect Judges subconsciously:The Supreme Court and the House of Lords have, as pointed out inChapter III of our Report, observed that publications which are prejudicialto a suspect or accused may affect Judges also subconsciously. This can be at the stage of granting or refusing bail or at the trial.Supreme Court holds prejudicial publication after ‘arrest’ can be criminalcontempt:Under the Contempt of Courts Acts of 1926 and 1952, unlike the Actof 1971, there was no specific definition of ‘civil’ or ‘criminal’ contempt.Further before 1971, the common law principles were applied to treat prejudicial publications made even before the ‘arrest’ of a person ascontempt. In fact, some Courts were treating as ‘criminal contempt’, prejudicial publications even if they were made after the filing of a FirstInformation Report (FIR). But the Supreme Court, in Surendra Mohanty v.State of Orissa (Crl. App. 107/56 dt. 23.1.1961) however, held that filing of an FIR could not be the starting point of pendency of a criminal case.Because of that judgment, a prejudicial publication made after the filing of the FIR gained immunity from law of contempt. But in 1969, the SupremeCourt held in A.K. Gopalan v. Noordeen 1969 (2) SCC 734 (15
th
Sept.,1969) that a publication made after ‘arrest’ of a person could be contempt if it was prejudicial to the suspect or accused. This continues to be the law asof today so far as Art. 19(1)(a), 19(2) and Art. 21 are concerned.
 
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