Orissa High Court
Anjana Mishra vs Indrajit Ray on 27 November, 1998
Equivalent citations: 1999(I)OLR313
Author: A. Pasayat
Bench: S.N. Phukan, A. Pasayat
JUDGMENT A. Pasayat, J.
1. An affidavit filed by Shri Arniya Bhusan Tripathy, an ex-Director-General of Police, Orissa has generated a lot of heat, as is evident from the present misc. case. The affidavit has been filed in OJC No. 9929 of 1997, which was filed by Mrs. Anjana Mishra making certain allegations against Shri Indrajit Ray, the ex- Advocate General, who at the relevant point of time was functioning as Advocate General. The case was taken up along with OJC Nos. 9788, 9801, 9806 and 9862 of 1997. Considering certain unusual features which were noticed by this Court, investigation of the criminal case registered on the basis of first-information-report lodged by Mrs. Anjana Mishra was handed over to the Central Bureau of Investigation (in short, 'CBI'). OJC No. 9929 of 1997 was disposed of along with OJC Nos. 9413, 9788, 9801, 9806 and 10039 of 1997 by a common judgment dated 8.8.1 997. Subsequently grievance was made that Shri Amiya Bhusan Tripathy was not examined in a case referred to above, though he is a vital witness. The CBI was directed to indicate its stand. A counter affidavit was filed by the Deputy Superintendent of Police, CBI, Special Branch, Calcutta. In Clause (c) of paragraph 3 of the affidavit it was stated that immediately after registration of the case, elaborate discussion was held by the CBI team of Investigators with Shri Amiya Bhusan Tripathy. After such discussion, it was not felt necessary to record the statement formally Under Section 161 of the Code of Criminal Procedure, 1973 (in short, the 'Code'). As no provision under the Code was brought to the notice of the Bench as to permissibility of such discussion and non-recording of statement Under Section 161 of the Code after registration of a cognizable-offence, notice was issued to Shri Tripathy to file affidavit as to what discussion took place between the officers of the CBI and himself as stated in the counter affidavit. The order was passed on 8.5.1998. The matter was listed on 28.8.1998, and the following order was passed.
"List it on 18.9.1998. In the meantime, affidavit shall be filed by Shri A.B.Tripathy".
After taking time, the affidavit has been filed. On 18.9.1998, the matter was placed before the Bench for consideration of the affidavit of Shri Tripathy. Following order was passed on that date.
"Perused the affidavit of Mr. A. B. Tripathy. Former Director General of Police.
Mr. Sanjit Mohanty, learned counsel for the CBI has stated that he has received a copy of the same. According to Mr. Mohanty. CBI will take such action on the basis of statements made in the affidavit as it may deem fit and proper.
xxx xxx xxx "
It is to be noted at this juncture that there was another writ application (OJC No. 1794 of 1998) which was filed making similar grievances. In view of the order dated 18.9.1998 passed on OJC No. 9929 of 1997. same was also disposed of.
2. In the present misc. case, prayer has been made for an order of restraint/appropriate direction. According to the applicant, after the affidavit was filed by him, the Chief Minister of the State, several high placed officials and politicians have started smear campaign against him, though he had filed the affidavit pursuant to the direction given by this Court, and had stated what was within best of his knowledge. Motives have been attributed and State machineries have been issued. It has been highlighted that though the matter was to be listed on 18.9.1998, before the date, the Chief Minister and several officials have rushed to the press. This has created a panic. Since the applicant apprehended danger to his life, on his request protection was provided to him by this Court. There has been character assassination. Even an affidavit has been sworn to by a high placed police official, Shn A.K.Patnaik, a retired Director General of Police, who has tried to contradict certain statements made in the applicant's affidavit. It is stated that how he was interested in the matter is not understood. It is pleaded that before the matter was taken up by this Court, the sudden rush to the press was nothing but an attempt to hush up the matter and to obstruct the cause of justice. It is stated that the acts clearly show an attempt to draw red-herrings to divert attention from truth.
3. It was stated by the learned counsel for State that affidavit filed by the retired Director General of Police contained his own personal views and there is no foundation for the allegation that it was done at the behest of State functionaries. It is further stated that even before the affidavit of Shri Tripathy had been filed in this Court, same had figured prominently in several newspapers. None else than Shri Tripathy could be the source for such publication. As regards the statements stated to have been made by various persons, it is stated that they are essentially their personal views and the State has nothing to do in the matter. So far as press release is concerned, it is submitted that as certain inaccuracies were noticed, it was thought appropriate to clarify the position so far actual factual position is concerned.
4. At this juncture it"is necessary to take note of the affidavit filed by Shri Tripathy. Same was filed in this Court on 1 6.9.1 998, though a copy was supplied on 15.9.1998 to the learned counsellor CBI and a copy was handed over to one Shri Kanhu Charan Misra on 15.9.1998. who received the copy as petitioner though he was not To keep the records straight, it is necessary to indicate thai in the affidavits filed by Shri Tripathy, Shri A. K. Patnaik and Shri G.R.Patnaik. K.C.Mishra has been stated to be the petitioner in OJC No. 9929 of 1997. In reality petitioner was Smt. Anjana Mishra
5. On verification of records, we find that the affidavit stated to have been sworn to by Shri Amulya Kumar Pattnaik, the former Director-General of Police as referred to in Annexure - A/12 was filed in the misc. case. Shri Tripathy's affidavit, as a conscious citizen. he felt it is duty to make reaction to the affidavit of Shri Tripathy, more particularly when he had held a similar post. He has referred to an earlier affidavit filed by Shri Tripathy as Director-General of Police on 8.8.1997 before the matter was handed over to CBI to highlight that the subsequent affidavit was motivated. Another affidavit has been filed by one Shri Gyana Ranjan Patnaik, Advocate wherein it has been stated that text of affidavit filed by Shri Tripathy had been printed in several newspapers even before it was filed in Court, and it was indicative of undue interest shown by Shri Tripathy, which is unbecoming of him.
6. It is stated by Shri Tripathy that a complaint has been lodged in-the Court of learned S.D.J.M., Sadar, Cuttack on 26.9.1998 Under Sections 202 and 176 of the Indian Penal Code, I860. The applicant has stated that there are materials to examine him Under Section 161 of the Code by the CBI.
7. One thing which is necessary to be indicated is that the case should be tried by a Court of Law and not by press. It is often seen that whenever a case has any sensational or publicity value, there is usually a trial by the press. Before the Court of Law takes a decision as to whether a person is to be declared guilty or innocent there is trial by the press. It is stated by learned counsel for the State that though Shri Tripathy's stand is that there should not be trial by the press, circumstances establish that he has triggered it.
8. "The Press plays a vital role in the administration of justice. It is the watchdog to see that every trial is conducted fairly, openly and above board. But the watchdog may sometimes break loose and have to be punished for misbehaviour". H.R.'s book Road to Justice, ( 1955) page 78 have become locus classicus. Press occupies a vital place in the modern society. Press in this country has risen to great height in the past. In the past when we were under foreign denomination, press on the one hand awakened human consciousness towards their rights to freedom and liberty, and on the other hand posed a threat to the foreign rulers of being exposed wherever they did any act of highhandedness. Yet. any institution when misused is bound to do more harm than good. Press too in the zeal of either helping tlm victim of oppression. or in exposing the oppressor entered into the field of investigation or trial of a pending case. It was here that the conflict with the judiciary came and cases for contempt of the Court were started. In 1954, a Press Commission was appointed, which enquired into all matters connected with the working of Press and all aspects of Journalism. One of the matters considered was contempt of Court, and contempt of Legislature,
9. The freedom of the press is basically the freedom of the individuals to express themselves through the medium of press. This implies that the freedom of press is not superior to that of an individual. In fact this freedom is fundamental to the life of an individual. In the words of William Blackstone. ."The liberty of the Press is indeed essential to the nature of a free State; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiment he pleaded before the public, to forbid this, is to destroy the freedom of the press; but if publishes what is improper, mischievous, or illegal he must take the consequence* of his own temerity." (See Blackstone's Commentaries. Vol. IV at pages 151, 152), In early nineteen century Lord Ellenborough observed in Max v. Cob bet : (1804)20 Mow. St. Trl. 1) :
"The law of England is the law of liberty, and consistently with this liberty we have not what is called an imprimatur; there is no such preliminary licence necessary, but if a man publishes a paper he is exposed to the penal consequences as he is in every other act if it be illegal."
10, There is guarantee of the Constitution of India that there will be freedom of speech and writing, but reasonable restriction can be imposed. It will be of relevance to compare the various suggestions as prevalent in America and India. It is worthwhile to note that all utterances against a Judge or concerning a pending case do not in America amount to contempt of Court. In Article 19 the expression 'reasonable restrictions' is used which is almost at par with the American Phraseology 'inherent tendency* or 'reasonable tendency'. The apex Court of American in Bridges v. Calfornia : (1911) 86 Law Ed. 192 said :
"What finally emerges from the clear and present danger cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished."
The vehemence of the language used is not alone the measure of the power to punish for contempt of Court. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The stream of administration of justice has to remain unpolluted so that purity of Court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of Court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.
11. The press does not have the right, which is its professional function, to criticise and to advocate. The whole gamut of public affairs is the domain for fearless and critical comment, and not least the administration of justice. But the public function which belongs to the press makes it an obligation of honour to exercise this function only with the fullest sense of responsibility. Without such a lively sense of responsibility a free press may readily become a powerful instrument of injustice. It should not and may not attempt to influence Judges before they have made up their minds on pending controversies. Such restriction, which merely bars the operation of extraneous influence specifically directed to a concrete case, in no way curtails the fullest discussion of public issues generally. It is not suggested that generalised discussion of a particular topic should be forbidden, or run the hazard of contempt proceedings, merely because some phrases of such a general topic may be involved in a pending litigation. It is the focussed attempt to influence a particular decision that may have a corroding effect on the process of justice, and it is such common that justifies the corrective process. To similar effect was the observation of Frankfurthai; J. in Pennekamo v. Florida : (1946) 90 Law Ed. 1295. '
12. So far as this Court is concerned, in the case at hand the affidavit was filed by Shri Tripathy pursuant to the direction given by this Court. Regarding truth or otherwise of the statement no opinion has been expressed by the Court in view of the order dated i 8.9.1 998 quoted above. The matter was closed so far as this Court is concerned on the question whether the course adopted by the CBI in the matter of examination of Shri Tripathy was appropriate. It had been clearly stated by the learned counsel for CBI that such action on the basis of the statements made in the affidavit as deemed proper shall be taken.
13. There can be no dispute about the proposition that a witness should not be intimidated and demoralised by any sort of pressure tactics, intimidation. Witnesses are syes and ears of justice said Bantharn. A witness should go to tender evidence without any fear, intimidation or pressure. Public character assassination of persons who are to be witnesses of a case is not desirable. Villification, intimidation are not desirable because they are likely to affect the administration of justice. If the witnesses are deterred from coming to the aid of legal proceeding, it will be impossible that justice can be administered. If any person had anything to say about correctness of the statements made by Shri Tripathy, he could, if so advised, have brought the same to the notice of CBI, which has assured this Court that action as deemed fit and proper on the basis of statements made by Shri Tripathy shall be taken. It was stated at the Bar that if the statements of Shri Tripathy on affidavit could find its place in the newspaper before it was taken up by this Court, he should not make a grievance that contradictions or clarifications have been given to the Press. We do not think it necessary to go into that question. A Court of Law is not an arena for settling political disputes or personal villifications. The misc. case is accordingly disposed of.
S.N. Phukan, C.J.
14. I agree.