SYMBIOSIS LAW SCHOOL, PUNE

CARE | COURAGE | COMPETENCE | COLLABORATION

“ADVANCED RESEARCH METHODOLOGY”

INTERNAL ASSESSMENT
TITLE OF ASSIGNMENT-

“IRAC ANALYSIS”

R.K. ANAND
V/S
REGISTRAR, DELHI HIGH COURT
(CRIMINAL APPEAL NO. 1393 OF 2008)

SUBMITTED BY –

RONAK PARAKH
ROLL NO. 051
PRN 20010143051
(E) 20010143051@SYMLAW.AC.IN
HUMAN RIGHTS LAW

LL.M BATCH OF 2020-21

SYMBIOSIS LAW SCHOOL, PUNE

GUIDED BY –

PROF. DR. DHANAJI JADHAV

 1. INTRODUCTION & BRIEF BACKGROUND
The present appeal is a fall out from a criminal trial arising from a hit and run accident in
which a car travelling at reckless speed crashed through a police check post and crushed to
death six people, including three policemen. Facing the trial, as the main accused, was
Sanjeev Nanda coming from a very wealthy business family. It was in this background that a
well-known English language news channel called New Delhi Television (NDTV) telecast a
programme on May 30, 2007 in which one Sunil Kulkarni was shown meeting with IU Khan,
the Special Public Prosecutor and RK Anand, the Senior Defence Counsel (and two others)
and negotiating for his sell out in favour of the defence for a very high price. Shocked by the
programme the Delhi High Court suo moto initiated a proceeding (Writ Petition (Criminal)
No.796 of 2007). It called for from the news channel all the materials on which the telecast
was based and after examining those materials issued show cause notices to RK Anand, IU
Khan and Bhagwan Sharma, an associate advocate with RK Anand why they should not be
convicted and punished for committing criminal contempt of court as defined under section 2
(c) of the Contempt of Courts Act, 1971. The High Court held that RK Anand’s and IU
Khan’s acts squarely fell within the definition of contempt under clauses (ii) & (iii) of
section 2(c) of the Contempt of Courts Act. It, accordingly, held them guilty of committing
contempt of Court vide judgment and order dated August 21, 2008 and in exercise of power
under Article 215 of the Constitution of India prohibited them, by way of punishment, from
appearing in the Delhi High Court and the courts subordinate to it for a period of four months
from the date of the judgment. It also held that R.K. Anand and IU Khan had forfeited their
right to be designated as Senior Advocates and recommended to the Full Court to divest them
of the honour. In addition to this the High Court also sentenced them to fine of rupees two
thousand each. Thus, these two appeals by R.K. Anand and IU Khan respectively are filed
under section 19 (1) of the Contempt of Courts Act against the judgment and order passed by
the Delhi High Court.

2. ISSUES
1. 1. Whether the conviction of the two appellants for committing criminal contempt of
court is justified and sustainable?
2. Whether the procedure adopted by the High Court in the contempt proceedings was
fair and reasonable, causing no prejudice to the two appellants?
 3. Whether it was open to the High Court to prohibit the appellants from appearing
before the High Court and the courts sub-ordinate to it for a specified period as one of
the punishments for criminal contempt of court?
4. Whether the role of NDTV was justified in carrying out sting operations and
telecasting the programme based on the sting materials regarding a criminal trial that
was going on before the court.

3. RULES
Contempt of Courts Act, 1971

1. Section 19(1) - An appeal shall lie as of right from any order or decision of High
Court in the exercise of its jurisdiction to punish for contempt.
2. Section 2(c) - “criminal contempt” means the publication (whether by words, spoken
or written, or by signs, or by visible representation, or otherwise) of any matter or the
doing of any other act whatsoever which—
3. Section 2(c)(ii) - prejudices, or interferes or tends to interfere with, the due course of
any judicial proceeding; or
4. Section 2 (c)(iii) - interferes or tends to interfere with, or obstructs or tends to
obstruct, the administration of justice in any other manner;

4. ANALYSIS / SUGGESTIONS
On the Issue of Contempt of Court
The Standard of Proof in Contempt of Court Proceedings is one of the striking issues in the in
the present case. The way the Court decided whether the charge of criminal contempt had
been established or not, the standard applied was like the precedent case law. The approach
of the Court was in consonance with the law laid down in a range of cases from In Re Vinay
Mishra1 to Daroga Singh and Ors. v. B.K. Pandey 2. The Court spelt it out clearly that there is
a difference between the manner of proof in a contempt proceeding and that in a criminal
trial. While the standard of proof in both was said to be the same, namely, that of proving a
fact “beyond reasonable doubt”, the manner of proof in both was contended to be different.
The settled position of law was noted to be that proceeding of contempt of court was sui
generis. The provisions of the Criminal Procedure Code and the Indian Evidence Act were
not applicable in such a proceeding. Instead, the principles of natural justice were said to

1
Re Vinay Mishra MANU/SC/0471/1995: 1995CriLJ3994
2
Daroga Singh and Ors. v. B.K. Pandey MANU/SC/0336/2004: 2004CriLJ2084
apply. The absence of a fixed procedure to be followed in these types of trials has led to the
following shortcomings in the way the contempt of court proceedings is conducted. In this
regard, the lacunae which can be identified from a reading of R.K. Anand v. Registrar, Delhi
High Court are:
Firstly, the opportunity to cross-examine the witnesses is very rarely given to the person
charged with criminal contempt. In the case of Daroga Singh and Ors., it was noted that one
of the reasons for denying the opportunity to cross-examine is the need to decide the case
expeditiously. R.K. Anand’s request to cross-examine Poonam Agarwal was turned down by
the High Court. But the point to be noted is to what extent should interests of expediency be
given priority to interests of fairness and uncovering the truth. Further, the reasoning behind
denial of the opportunity to cross examine was that what had transpired between the parties
were already there on the micro-chips and the CDs. It was stated that no statement by
Poonam Agarwal would change this situation. But the point to be noted is that it was the
reliability of these CDs that was being questioned by R.K. Anand in the first place. Secondly,
IU Khan was let off the hook on the ground that the tape, containing his recording, submitted
to the Court was incomplete and hence its veracity was not adequately established. However,
it does not seem that the veracity of R.K. Anand’s sting tape was proved either. Attempts to
do so were struck down by the Court. Thirdly, the judgment states that R.K. Anand did not
deny the recording, which was broadcasted by the news channel, in the first instance. This
fact seems to have weighed against him, especially since, as is mentioned in the judgment,
that IU Khan had, right at the beginning, claimed that the recording had been doctored.
However, the fact of the matter is that the judges should not have referred to statements made
by the persons, in interviews to television channels, in the first place. Such observations do
not have any place in the judgment.
These faux pas which have been pointed out would not have taken place at all if the Criminal
Procedure Code and the Indian Evidence Act procedural standards had been followed.
Professional misconduct vis-à-vis Criminal Contempt of Court
Khan’s behaviour was held to be professional misconduct whereas Anand was charged with
criminal contempt of court. While Anand was given a period of eight weeks from the date of
service of notice for filing his show-cause as to why punishment awarded to him should not
be enhanced, Khan’s case was directed back to the Delhi High Court for consideration and he
had no prior notice as to the action of the SC. In the case In re Vinay Mishra 3, the SC held
that under Article 142 of the Constitution the jurisdiction and powers of the Supreme Court
3
Supra
which are supplementary in nature and are provided to do complete justice in any manner, are
independent of the jurisdiction and powers of the Supreme Court under Article 129 which
cannot be trammelled in any manner by any statutory provision including any provisions of
the Advocates Act, 1961 or the Contempt of Courts Act, 1971. The implication of this case
was that the SC was vesting the power to try cases of professional misconduct by advocates
which was vested in the Bar Council as per s.35 of the Advocates Act, 1961. Fortunately, this
decision was overruled in Supreme Court Bar Association v. Union of India where it was
held that the SC must not exceed its jurisdiction and it must act with restraint while
exercising its powers under A.142. Thus, it was unacceptable for the Court to “take over” the
role of the statutory bodies or other organs of the State and “perform” their functions. While
the Bar Council is considering cases relating to professional misconduct, it follows a fixed
procedure where a Disciplinary Committee is set up, the advocate is allowed to defend
himself and most importantly an appeal to the decision of the Committee lies with the SC.
This procedure as contrasted with the contempt proceedings seems much fairer as the
advocate is allowed one appeal. It is surprising that Criminal Contempt of Court which is a
graver offence does not have either a fixed procedure or a process of appeal. With reference
to the case, if IU Khan is dissatisfied with the decision of the Del HC, then it is highly
unlikely that his appeal will be successful since the Supreme Court has already pre-judged the
matter. Wouldn’t this amount to unfairness?
Role of the Media
Several issues emerge from the R.K. Anand which need to be scrutinized. One of the
questions posed by Singhvi J. to the lawyers concerned was whether it was appropriate for
the media to air the tapes during court proceedings of the BMW case? Does it adversely
affect or prejudice the parties involved? At a broader level does this vitiate fair trial? Several
issues emerge from the RK Anand which need to be scrutinized. It is important to conduct
such scrutiny considering recent incidents and practical considerations. The question posed
by J. Singhvi to the lawyers concerned was whether it was appropriate for the media to air the
tapes during court proceedings of the BMW case? Does it adversely affect or prejudice the
parties involved? At a broader level does this vitiate fair trial? The present judgment explains
that trial by media takes place where the impact of television or newspaper coverage on a
person’s reputation creates a widespread perception of guilt regardless of any verdict in a
court of law. In such cases the media has tried and found the person guilty and thus
adjudicated upon the very issue pending before the court and this makes a fair trial virtually
impossible regardless of the its result. In this case, an important issue which came up before
the Court was whether NDTV was guilty of criminal contempt under the Contempt of Courts
Act? The Court held that this case fell squarely under the defence under the new S. 13(b) of
the Act which provides that justification by truth and public interest put together form a
defence. The Court also accepted Shri Salve’s compelling argument that NDTV was in fact
trying to prevent the advocates’ attempt to interfere during justice. It exposed erring lawyers.
Further, the stings had nothing to do with the accused, Sanjeev Nanda. It did not conjecture
about the culpability of the accused which is what the Court thought the standard is.
However, it is interesting to note at this point that there were television interventions even in
December 2007 when the Anand contempt case was before the Delhi High Court.

5. CONCLUSION
The present BMW’s Case precisely revolves around winning over and influencing the star
witness, Sunil Kulkarni. The two appellants, defence counsel as well as special public
prosecutor, were caught through live conversation in a sting operation conducted by Poonam
Agarwal, a journalist of NDTV. Entire recordings in both the stings were accepted. R.K.
Anand and IU Khan both were prohibited by way of punishment, from appearing in Delhi
High Court and all the courts subordinate to if, for a period of four months from the date of
judgment and a fine of Rs. 2000 too was imposed. In the event of appeals against the above
judgment of the Delhi Court, the appeal by R.K. Anand was dismissed by the Supreme Court,
subject to the notice of enhancement of punishment. He was allowed eight weeks’ time from
the date of service of notice for filing his show-cause. In case of I.U. Khan, he was supposed
to know about the ongoing game plan that was afoot for subversion of the Trial. His omission
to inform about the same to prosecution and the court, as per the Delhi High Court was likely
to have a very serious impact on the trial and thus formed a case of professional misconduct.
But, as per the Supreme Court, based on materials on record the charges of criminal contempt
cannot be held to be satisfactorily established against him. The appeal filed by I.U. Khan was
therefore allowed and his conviction for criminal contempt was set aside. The period of four
month’s prohibition from appearing in Delhi High Court and the courts sub-ordinate to it was
already over by then, however, the punishment of fine given to him by the High Court was
set aside. The Supreme Court further held that the Full Court of the Delhi High Court may
still consider whether to continue the honour of Senior Advocate conferred on him
considering the findings recorded in this judgment. Also, to avoid any such controversies in
future all the High Courts that have so far not framed rules under Section 34 of the Advocates
Act are directed to frame the rules without any further delay.
While appreciating the TV channel’s exposure of a renowned criminal lawyer’s crime of
bribing a witness, the apex court declined to regulate media in the interest of an autonomous
judiciary and a free media. I would like to conclude by quoting J. Singhvi, “What appeared
in the telecast was outrageous and tended to confirm the cynical but widely held belief that
in this country the rich and the mighty enjoyed some kind of corrupt and extra-
constitutional immunity that put them beyond the reach of the criminal justice system.”
The Apex court termed this sting as opening of another chapter in trial. NDTV has
sufficiently documented the entire episode, which is essential to nail criminals. Their half-an-
hour program on delays in the trial inspired witness Kulkarni to work with TV channel to
expose prosecution-defence nexus.