Direction) Vijay Nair vs Central Bureau Of Investigation & Ors on 21 November, 2022

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Delhi High Court - Orders

Direction) Vijay Nair vs Central Bureau Of Investigation & Ors on 21 November, 2022

1. This writ petition has been preferred for directions being framed restraining the respondents from leaking and disseminating any information to the print or electronic media relating to court proceedings including in-camera proceedings in respect of CBI FIR No. RC0032022A0053.

2. On the last occasion when the matter had been taken up, the Signature Not Verified Court had upon going through the alleged offending broadcasts and in Digitally Signed By:NEHA Signing Date:21.11.2022 18:44:57 respect of which a grievance was raised by the petitioner, called upon learned counsels for the Central Bureau of Investigation ["CBI"] as well as the Enforcement Directorate to place for the perusal of the Court all press releases or communications that may have been issued by them.

3. Mr. Hossain, learned counsel representing the Enforcement Directorate, apprises the Court that insofar as the said respondent is concerned, it has not issued any Press Releases pertaining to the aforesaid case. He, on instructions, also states that none of the broadcasts in respect of which objections are raised by the petitioner are based on any information provided or disclosed by the said respondent to the concerned broadcasters.

4. Mr. Sharrma, learned counsel appearing for the CBI, has placed for the perusal of the Court the Press Releases issued by it and dated 19 August 2022, 05 September 2022 and 17 October 2022. A textual examination of those releases in juxtaposition with the broadcasts which have constrained the petitioner to approach this Court would indicate that there is simply no correlation between what was broadcasted and the information which was provided by the investigating agencies in the public domain. Mr. Sharrma takes a stand identical to that adopted by the Enforcement Directorate that no details of the investigative process were divulged by any person of the CBI to the news broadcasters. This is, therefore, not a case where at least at this stage it can be said that information was selectively leaked or provided by the investigating agencies.

5. The Court also bears in mind the various safeguards which have been structured and put in place by the Special Judge before whom the trial itself is pending. The conditions so imposed and which clearly bind and operate upon the investigating agencies are thus sufficient to protect the interest of all concerned parties in the meanwhile.

Signature Not Verified Digitally Signed By:NEHA Signing Date:21.11.2022 18:44:57

6. Be that as it may and bearing in mind the content of the broadcasts which had been carried on various TV channels and in respect of which the instant challenge is raised, let notice issue to respondent Nos. 5, 6, 7, 8 and 9. The petitioner may take steps for service on the said respondents through all permissible modes including via approved courier service.

7. In the meanwhile, the Court directs the respondent No. 4 to duly examine the broadcasts which have been questioned in the instant writ petition and place a report in these proceedings as to whether they would be compliant with the Code of Ethics and Broadcasting Standards as well as the News Broadcasting and Digital Standards Regulations as adopted by the News Broadcasters and Digital Association [NBDA].

8. The petitioner may additionally implead the NBDA of which respondent Nos. 7 to 9 are members. The oral prayer made in this respect by learned counsel is granted. Let an amended memo of parties be placed on the record within a period of 48 hours from today. The petitioner shall take steps for the newly impleaded respondent through all permissible modes including via approved courier service.

9. The Court notes that the subject of the deleterious impact that irresponsible news broadcasts designed only to sensationalise may have on an ongoing investigation and what is now commonly termed as a "media trial" was elaborately considered by a Division Bench of the Bombay High Court in Nilesh Navalakha vs. Union of India, [2021 SCC OnLine Bom 56] where the following pertinent observations came to be made:-

"232. Notwithstanding that freedom of speech is the bulwark of a democratic government and the role of the press/media to discover the truth and to ensure proper functioning of the democratic process is undoubtedly salutary, at the same time, the press/media must remember that its concern for discovery of truth and maintenance of purity in all streams of good governance by Signature Not Verified opening up channels of free discussion of issues should stop short Digitally Signed By:NEHA Signing Date:21.11.2022 18:44:57 of exceeding the permissible legal and Constitutional means. Since here we are majorly concerned with "administration of justice", any report of the press/media, having the propensity of tilting the balance against fair and impartial "administration of justice", could make a mockery of the justice delivery system rendering „truth‟ a casualty. The duty of the press/media to have news items printed/telecast based on true and correct version relating to incidents worth reporting accurately and without any distortion/embellishment as well as without taking sides, cannot therefore be overemphasized.

253. Resting on the authorities referred to above and as a sequel to our aforesaid discussion, we hold that any act done or publication made which is presumed by the appropriate court (having power to punish for contempt) to cause prejudice to mankind and affect a fair investigation of crime as well as a fair trial of the accused, being essential steps for "administration of justice", could attract sub-clause (iii) of section 2(c) of the CoC Act depending upon the circumstances and be dealt with in accordance with law."

10. Proceeding then to recognise the applicability of the CTNV Act and the Rules on broadcasts relating to an ongoing investigation, the Court held as follows:-

"280. In the context of the issue before us, as rightly urged on behalf of the petitioners at the Bar sub-rules (a), (d), (f), (g), (I) and

(k) would apply to the telecast which are in the nature of a media trial having adverse consequences on an ongoing criminal investigation. These sub-rules would have omnibus application and would apply to situations of a media trial at all the stages including when the process of criminal law is set into motion on registration of an FIR resulting into arrest and till the trial is complete and to further judicial proceedings before the Court.

284. For the reasons so discussed, we answer the question by recording our firm opinion that the matters which are pending investigation on a criminal complaint clearly fall within the restriction as contained in the Programme Code as stipulated under section 5 of the CTVN Act and Rule 6 of the CTVN Rules."

11. Turning then to the issues that arise from a media trial, the Court in Nilesh Navlakha, the following pertinent observations came to be entered:-

"318. Given the circumstance that the press/media has the ability to mould the opinion of the society by publicity of certain facets of an investigative process, which could give rise to strong public emotions and prejudice the case of one party or the other, it ought to refrain from taking stances in its presentations which are biased and show a predilection for a particular point of view having Signature Not Verified enormous potential of deflecting the course of justice. Digitally Signed By:NEHA Signing Date:21.11.2022 18:44:57

322. Giving due recognition to the press/media as the fourth pillar of democracy and that it plays a vital role in not only disseminating information to the public but at times in urging the justice delivery system to set right a wrong, there have been several decisions of the Supreme Court expressing hope and trust that the media would cover and report events and incidents accurately and by exercising a degree of restraint so as not to impinge on others rights and even if it does cross the line, the self-regulatory mechanism would spring in to keep the media under check. The sole intention was to ensure that nothing would be done which could be destructive of orderly administration of justice, challenge the supremacy of the rule of law and shake the confidence of the people in the judicial process. Drawing from experience, there is good enough reason to conclude that the hope and trust are belied and the self-regulatory mechanism has failed to deliver in adequate measure in keeping erring media houses under check. It is now time that some corrective action is taken, lest judicial independence remains only on paper and right-thinking people start losing faith in the justice delivery system and doubt the capacity of the Courts to correct what needs to be corrected.

325. Question no. 5 is, thus, answered by observing that regulation of reporting by the media amounting to a „media trial‟ is necessary but limited to securing the rights of others under Article 21 as well as to preserve and maintain the sanctity of the criminal justice system of the country, to the extent delineated by us while we answer Question D (infra)."

12. Ultimately the Court framed the following operative directions:-

"355. Having given our anxious consideration to all aspects of the matter, we are inclined to the opinion that the press/media ought to avoid/regulate certain reports/discussions/debates/interviews in respect of and/or touching upon any on-going inquiry/investigation into a criminal offence and that only those items are presented for reading/viewing and otherwise perceiving through the senses which are merely informative but in public interest instead of what, according to the media, the public is interested in. No report/discussion/debate/interview should be presented by the press/media which could harm the interests of the accused being investigated or a witness in the case or any such person who may be relevant for any investigation, with a view to satiate the thirst of stealing a march over competitors in the field of reporting. Accordingly, we direct the press/media to exercise restraint and refrain from printing/displaying any news item and/or initiating any discussion/debate/interview of the nature, as indicated hereunder:

a. In relation to death by suicide, depicting the deceased as one having a weak character or intruding in any manner on the privacy of the deceased;

b. That causes prejudice to an ongoing inquiry/investigation Signature Not Verified by: Digitally Signed By:NEHA Signing Date:21.11.2022 18:44:57

(i) Referring to the character of the accused/victim and creating an atmosphere of prejudice for both;

(ii) Holding interviews with the victim, the witnesses and/or any of their family members and displaying it on screen;

(iii) Analyzing versions of witnesses, whose evidence could be vital at the stage of trial;

(iv) Publishing a confession allegedly made to a police officer by an accused and trying to make the public believe that the same is a piece of evidence which is admissible before a Court and there is no reason for the Court not to act upon it, without letting the public know the nitty-gritty of the Evidence Act, 1872;

(v) Printing photographs of an accused and thereby facilitating his identification;

(vi) Criticizing the investigative agency based on half- baked information without proper research;

(vii) Pronouncing on the merits of the case, including pre-judging the guilt or innocence qua an accused or an individual not yet wanted in a case, as the case may be;

(viii) Recreating/reconstructing a crime scene and depicting how the accused committed the crime;

(ix) Predicting the proposed/future course of action including steps that ought to be taken in a particular direction to complete the investigation; and

(x) Leaking sensitive and confidential information from materials collected by the investigating agency;

c. Acting in any manner so as to violate the provisions of the Programme Code as prescribed under section 5 of the CTVN Act read with rule 6 of the CTVN Rules and thereby inviting contempt of court; and d. Indulging in character assassination of any individual and thereby mar his reputation."

13. The Court at this stage deems it appropriate to observe that it hopes and trusts that the news and broadcasting agencies shall bear in mind the aforesaid salutary principles which have been duly enunciated and noticed above while covering the criminal proceedings in question.

14. Pending further consideration, the Court directs the respondent No.5 to 9 to ensure that all broadcasts that are carried with respect to ECIR bearing No. ECIR/HIU-II/14/2022 and CBI FIR No. Signature Not Verified Digitally Signed By:NEHA Signing Date:21.11.2022 18:44:57 RC0032022A0053 are in tune with the official Press Releases that may be issued either by the CBI or the Enforcement Directorate and comply with the directives which govern and are noticed in paragraph 7 of this order.

15. Let the matter be called again on 07.02.2023.

YASHWANT VARMA, J.

NOVEMBER 21, 2022 bh Signature Not Verified Digitally Signed By:NEHA Signing Date:21.11.2022 18:44:57

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Delhi High Court - Orders