R.K.

Anand vs Registrar,Delhi High Court 2009

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN

LAW
RANCHI

Constitution

CASE ANALYSIS
R.K.Anand vs Registrar,Delhi High Court

Name- Vipin Sharma

2nd semester student of B.A.LLB
Roll number- 604 (B)
Email- [email protected], 8889897996

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 R.K.Anand vs Registrar,Delhi High Court 2009

Introduction

Criminal contempt of Court by Senior Advocate (suborning court witness) - Punishment - Social
service in the field of law as alternative to imprisonment which may not serve any socially useful
purpose - Appellant found guilty of contempt by High Court and certain penalties imposed on
him - While dismissing his appeal, Supreme Court finding that punishment awarded by High
Court was not adequate and therefore show-cause notice issued for its enhancement, in R.K.
Anand - While matter was sub judice, appellant tendering unconditional apology and also
offering to:

(i) abstain from remunerative legal practice for one year,

(ii) (ii) provide free legal aid, and
(iii) (iii) make significant cash donation towards promotion of education in Law

Held, suborning criminal justice system is an odious offence deserving punishment of

imprisonment - However, Court has to remain objective and cannot lose sight of peculiar
circumstances of a particular case - There were certain mitigating factors deserving some
leniency in this case - Keeping in view appellant's old age, his wife's infirm condition,
prolongation of contempt case for five years and miscarriage of justice having already been
prevented in criminal case in which suborning of justice was noticed i.e. Sanjeev (Nanda
witness)

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 R.K.Anand vs Registrar,Delhi High Court 2009

Facts of the Case

-Sanjeev Nanda, grandson of the former naval chief, S.M. Nanda, crushed six persons to death
while driving the car inebriated in the early hours of January 10, 1999 at Lodhi Colony in South
Delhi.

-It halted only after the driver lost control and going down a distance of 200-300 feet hit the road
divider. But the anxiety of the car's occupants to leave the accident site without delay seemed to
override all other considerations.

-The police investigation brought to light that the accident was caused by a black BMW car
which was being driven by Sanjeev Nanda. He was returning from a late night party, under the
influence of liquor, along with some friend(s).

-On May 30, 2007 NDTV exposed the nexus between the two well-known lawyers, who tried to
influence a key witness Sunil Kulkarni in the BMW hit-and-run case.

-Defence lawyer R K Anand and public prosecutor I U Khan were caught on hidden camera
trying to win over Sunil Kulkarni who on the night of 10th January 1999 saw Sanjeev Nanda
drive his black BMW on Delhi's Lodhi Road.Khan was immediately removed from the case and
the Delhi Bar Council asked both lawyers for an explanation and started an inquiry against them.

-The Delhi high court took suo motu cognizance of the expose. NDTV was asked to submit
original tapes of the recordings, but the lawyers protested that the tapes were tampered with. The
case was heard for over a year. Eventually in August 2008, the High Court found both of the
lawyers guilty. They were barred them from Delhi courts for four months and stripped off their
seniority.

-Anand and Khan appealed against the High Court order in the Supreme Court under article 1321
of Indian constitution.

1
Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases ( 1 ) An appeal shall lie to the Supreme
Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other
proceeding,

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 R.K.Anand vs Registrar,Delhi High Court 2009

-Issues-

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 in the facts and circumstances of the case the punishments awarded to the appellants
can be said to be adequate and commensurate to their misdeeds?

5. The role of NDTV in carrying out sting operations and telecasting the program based on the
sting materials in regard to a criminal trial that was going on before the court.

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 R.K.Anand vs Registrar,Delhi High Court 2009

Arguments on the behalf of Appellant

Mr. Altaf Ahmed, learned senior counsel appearing for RK Anand, submitted in regard to the
integrity, authenticity, and reliability of the electronic materials on the basis of which the
appellants were held guilty of committing contempt of Court. Learned counsel submitted that the
way the High Court preceded in the matter it was impossible to say with any certainty that the
microchips that finally came before it for viewing were the same microchips that were used in
the spy cameras for the stings or those were not in any way manipulated or interfered with before
production in court

-High Court founded the appellant's conviction under the Contempt of Courts Act on facts that
were electronically recorded, even without having the authenticity of the recording properly
proved. The High Court simply assumed the sting recordings to be correct and proceeded to
pronounce the appellant guilty of criminal contempt on that basis. Hence, the genuineness and
accuracy of what appeared in the sting recordings always remained questionable.

-Mr. Ahmed submitted that the judgment and order coming under appeal was quite untenable for
the simple reason that the integrity of its factual foundation was never free from doubt and
procedure followed by the High Court was not fair and the appellant was denied a fair trial. the
High Court arrived at its conclusions without taking into consideration the appellant's defence
and that was yet another reason for setting aside the impugned judgment and order.

-In support of the proposition he cited two decisions of this Court, one in Mritunjoy Das Vs.
Sayed Hasibur Rahman2, and the other in Chotu Ram Vs. Urvashi Gulati and ors.3,. In both the
decisions the Court observed that the common English phrase, "he who asserts must prove" was
equally applicable to contempt proceedings. In both the decisions the Court cited a passage from
a decision by Lord Denning in Re Bramblevale Ltd.4 on the nature and standard of evidence
required in a proceeding of contempt.

2 (2001) 3 SCC 739

3
(2001) 7 SCC 530
4
(ALL ER pp. 1063H and 1064B)

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 R.K.Anand vs Registrar,Delhi High Court 2009

"A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It
must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond
reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies.
There must be some further evidence to incriminate him. Once some evidence is given, then his
lies can be thrown into the scale against him. But there must be some other evidence. Where
there are two equally consistent possibilities open to the court, it is not right to hold that the
offence is proved beyond reasonable doubt.

-He further submitted that the admissibility in evidence of electronic recordings or Electronically
Stored Information (ESI) was subject to stringent conditions but the High Court completely
disregarded those conditions and freely used the sting recordings as the basis for the appellants'
conviction.

-Two of the decisions of this Court referred by Mr. Ahmed, one in S A Khan vs. Bhajan Lal5
and the other in Quamarul Islam vs. S. K. Kanta6, relate to newspaper reports. In these two
decisions it was held that news paper report is hearsay secondary evidence which cannot be
relied on unless proved by evidence aliunde. Even absence of denial of statement appearing in
newspaper by its maker would not absolve the obligation of the applicant of proving the
statement.

5
(1993) 3 SCC 151
6
(1973) 1 SCC 471

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 R.K.Anand vs Registrar,Delhi High Court 2009

Counter Arguments

-In Ram Singh, a case arising from an election trial the Court examined the question of
admissibility of tape recorded conversations under the relevant provisions of the Indian Evidence
Act. The Court lay down that a tape recorded statement would be admissible in evidence subject
to the following conditions "Thus, so far as this Court is concerned the conditions for
admissibility of a tape- recorded statement may be stated as follows:

(1) The voice of the speaker must be duly identified by the maker of the record or by other who
recognise his voice. In other words, it manifestly follows as a logical corollary that in the first
condition for the admissibility of such a statement is to identify the voice of the speaker. Where
the voice has been denied by the maker it will require very strict proof to determine whether or
not it was really the voice of the speaker.

(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by
satisfactory evidence-direct or circumstantial.

(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be
ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of Evidence Act (5) the recorded
cassette must be carefully sealed and kept in a safe or official custody.

(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or
disturbances."

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 R.K.Anand vs Registrar,Delhi High Court 2009

Ratio Decidendi

-There cannot be any disagreement with the proposition advanced by Mr. Ahmed but as noted
above if the sting recordings are true and correct no more evidence is required to see that RK
Anand was trying to suborn a witness, that is, a particularly vile way of interfering with due
course of a judicial proceeding especially if indulged in by a lawyer of long standing.
Admissibility of electronically recorded & stored materials in evidence:

In Naresh Shridhar Mirajkar v. State of Maharashtra7 , the court justified exclusion of press by
the presiding judge from the recording of evidence of a witness, in the interest of administration
of justice. In camera proceeding in the court could also be justified on similar grounds.

In the case of sting operation by a TV channel showing the public prosecutor and the defense
lawyer negotiating the money to be paid to a prosecution witness for distorting his evidence in a
highly publicized case, the court held the sting operation as a valid exercise of freedom of
speech.

Supreme Court noted cases like R v Loosely show that entrapment is being recognized as a valid
defence. However all these deal with sting operations carried out by state agencies. In the instant
case, the operation was carried out by a private party and the operation was by NDTV which is a
private body

In Rajat Prasad v CBI, the Supreme Court in its judgment dated 24 April 2014 laid down the
law regarding sting operations. The aforementioned case was an appeal against the refusal
against the decision of the Delhi High Court not to use its inherent power under Section 482 of
the CrPC to quash the charges framed against the appellants. The allegation was that the
appellants had hatched a conspiracy to execute a sting operation, showing that their political
opponents accept bribes, in order gain political mileage ahead of elections. Their opponents did
fall for the trap and were charged under S. 7 of the Prevention of Corruption Act, 1988 (PC Act)
[Public servant taking gratification other than legal remuneration in respect of an official act]

7
AIR 1967 SC (1966)

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 R.K.Anand vs Registrar,Delhi High Court 2009

Judgment of appeal

Writing the judgment, Justice Alam said: “On a careful consideration of the materials on record,
we don’t have the slightest doubt that the authenticity and integrity of the sting recordings were
never disputed or doubted by R.K. Anand. He kept changing his stand in regard to the sting
recordings. In the facts and circumstances of the case, therefore, there was no requirement of any
formal proof of the sting recordings.

The Bench said: There was no violation of the principles of natural justice inasmuch as he was
given copies of all the sting recordings along with their transcripts. He was fully made aware of
the charge against him. He was given the fullest opportunity to defend himself and to explain his
conduct as appearing from the sting recordings. The recordings were rightly made the basis of
conviction and the irresistible conclusion is that the conviction of R.K. Anand for contempt of
court is proper, legal and valid calling for no interference.”

Mr. Anand’s action in trying to suborn the court witness in a criminal trial was reprehensible
enough and his conduct before the High Court “aggravates the matter manifold.” The judges said
“he does not show any remorse for his gross misdemeanour and instead tries to take on the High
Court by defying its authority. We are in agreement with Mr. Harish Salve, and Mr. Gopal
Subramaniam that the punishment given to him by the High Court was wholly inadequate [to]
and incommensurate with the seriousness of his actions and conduct.”

-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 Bench, while dismissing Mr. Anand’s appeal, issued notice, asking him to show cause in
eight weeks why the punishment should not be enhanced as provided under Section 12 of the
Contempt of Courts Act and also to explain why he should not be debarred from appearing in
courts for a longer period. Court also imposed fine of 2000 rupees over him.

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 R.K.Anand vs Registrar,Delhi High Court 2009

Conclusion

The Standard of Proof in Contempt of Court Proceedings: - One of the striking issues in the
recent judgment by the Supreme Court in this appeal is the manner in which the Court decided
whether the charge of criminal contempt had been established or not. The standard applied was
not different from 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 Mishra to Daroga Singh and Ors. v. B.K.
Pandey. 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 was said to apply. Now, the established position of law is that the standards that need to
be met in a contempt of court proceeding are those of fairness and objectivity, absence of
prejudice to the person facing the charge of contempt and provision of the opportunity to the
person to defend herself.

-the opportunity to cross-examine the witnesses is very rarely given to the person charged with
criminal contempt. 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 interests of expediency should 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 state of affairs. But the point to be noted is that it was the reliability
of these CDs that was being questioned by RK Anand in the first place.

-The request by RK Anand to send the CDs to the Central Forensic Science Laboratory to
determine whether it had been tampered was turned down. So it seems that different standards
were applied to judge IU Khan and RK Anand.

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 R.K.Anand vs Registrar,Delhi High Court 2009

-while RK Anand’s attempt at Bench fixing must be condemned, an allegation of bias is taken to
be akin to doubting the integrity of the judges and questioning the neutrality and freedom of the
judiciary. RK Anand to show-cause why his punishment must not be increased. The Supreme
Court emphasizes that RK Anand has not shown any regret for his gross misdemeanor and the
petition is an indication of him defying the High court’s authority. One can connect this stand of
the Supreme Court with their statements earlier as to how a motivated application for recusal is
bound to cause “hurt” to the judges.

-the judgment states that RK 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. There is
no overarching reason as to why a contempt of court charge should be made subject to a different
manner of proof as opposed to a criminal trial. This is especially since it is in the same genre as a
criminal proceeding. The defence that, nevertheless, a “beyond reasonable” standard is being
applied doesn’t hold well either.

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