Sushil Sharma vs The State (Delhi Administration) ...

on 1 May, 1996

Delhi High Court

Sushil Sharma vs The State (Delhi Administration) ... on 1 May, 1996
Equivalent citations: 1996 CriLJ 3944
Author: U Mehra
Bench: U Mehra
JUDGMENT Usha Mehra, J.

(1) The awareness of what is happening around in the society to a great extent is the work-force of
journalists. Mature investigative journalism helps in unearthing many skeletons Democratic
institutions are surviving, thanks to the eternal vigilance of the journalists. But for journalists also
there is code of conduct and ethical norms. The task to keep restraint in pending matters is expected
more from the investigating and prosecuting agencies. Similarly the Judge dealing with sensitive
and important matters have to exercise due restraint in their utterances. It is rightly said that the
Judge speak through their judgments only keeping this dictum in mind, we have to see as to what is
the grievance of this petitioner.

(2) Sushil Sharma is facing murder trial before the Additional Sessions Judge. He has felt aggrieved
because according to him the news items appearing in the Press and the electronic media having
reported the Naina Sahni murder case in such a fashion that it has not only coloured the public
opinion but also arouse public passions against him. So much so the senior police officials by their
utterances published in the Press have prejudged his case thereby holding him guilty. In fact by
doing so, a parallel public trial has been held against him thereby declaring him guilty of the charge
of murder of Naina Sahni. The Additional Commissioner of Police Maxwell Pereira has gone on
record to say that he was possessed of sufficient material to hang the petitioner. Because of these
statements by the officials of the Investigating Agency and senior police officials made in the
Press/electronic media, the petitioner can not expect fair trial. In view of surcharged atmosphere
prevailing against him, he wants either the trial he postponed or he be discharged. In any case
contempt proceedings be initiated against all those who are responsible for lowering the dignity of
the Court by interfering in the Administration of Justice by publishing these news items.

(3) To appreciate the contentions of the petitioner we may have quick glance to the relevant facts of
this case. As per prosecution story on 2nd July, 1995 gruesome murdel. of Naina Sahni took place in
her Gole Market. flat. She was shot at and thereafter the culprits with the intention to destroy the
evidence tried to burn her body in the Tandoor of Bagiya Restaurant at Ashok Yatri Niwas. But
unfortunately for them, the flames coming from the Tandoor were seen by Smt. Anguri Devi. She
raised he and cry. The Beat Constable got alerted and he retrieved the charred body of Naina Sahni
from the Tandoor. After investigation, the prosecution registered the case against the petitioner and
others. Petitioner is booked on the charged of murder of Naina Sahni and others have been charged
for destruction of evidence and harbouring a criminal. In the report under Section 173 Criminal
Procedure Code . filed by the prosecution, the petitioner has been named as 'Killer'. Further details
have been furnished regarding the whereabouts of the petitioner at the time of incident and
thereafter and also where he went after fleeing from Delhi.. At this moment, we are not concerned
with these details nor with the allegations or involvement of each of the accused persons. Suffice it
to say, that after collecting the evidence including that of the experts, the prosecution presented the.

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challan in Court on 28th July 1995. The Metropolitan Magistrate after completing the proceedings
committed the case to the Court of Session on 31st August, 1995. The learned Additional Sessions
Judge took up the case for hearing the arguments on charge. It is at this stage that the petitioner
presented two applications thereby seeking the relief of postponement or dropping of the
proceedings against him on the ground that in the prevalent atmosphere with emotions having been
aroused by the media he could not expect fair trial. According to him, the Investigating Agency was
hell bent upon fixing him though he is an innocent person. The mind of the general public has been
poisoned against him. Because of the parallel trial by the Press thereby dubbing his as Tandoor
Killer, his apprehension of not getting fair trial has been fortified. The reason of not exception fair
trial is based on the following surmises; (i) It is the only case in which the charge sheet has been.
presented within 25 days of the alleged offence. (ii) It has happened for the first time in the history
of administration of criminal justice that in such a serious. offence of murdar, the Investigating
Agency rushed through the investigation without even recording the statement of deceased relations
and waiting for experts report, (iii) Moreover, in order to falsely implicate the petitioner and to show
anxiety, the investigating agency obtained two postmortem reports, (iv) That the witnesses of the
alleged occurrence were publicly awarded by political parties before consideration of charge and
even before commencement of the trial, (v) In order to rush through the case proper investigation
has not been done.

(4) These applications were contested by the public prosecutor on the ground that criminal
proceedings once initiated could neither be dropped nor postponed. It is only when the Court, prima
facie. comes to the conclusion that the charge has not been made out that the accused can be
discharged and thereafter proceedings come to an end. Further that none of the news items
appearing in the media originated from the prosecuting agency. These news items were published
before the start of the trial.

(5) The learned Trial Court after hearing the arguments of the counsel for the parties came to the
conclusion that since most of these news items were published prior to the commencement of the
trial i.e. before filing the chargesheet, therefore, no prejudice had been caused to the petitioner.
These applications were accordingly rejected. Second application whereby the petitioner sought the
initiation of contempt proceedings was summarily dismissed. It is against these two impugned
orders of the learned Additional Sessions Judge dated 8th February and 15th February. 1996
respectively that petitioner has felt aggrieved and approached this Court.

(6) In this petition the petitioner has raised following points for consideration :-

(I)Whether on account of expeditious investigation and expeditious filing of challan. there has been
denial of fair trial and hence session case No. 120/95 be stayed or postponed.

(II)Whether on account of adverse publicity and public opinion having been aroused against him
there is denial of fair trial and he be discharged.

(III)Grant of 'B' Class facility.

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(IV& v) Whether on account of statements given by Senior police officials to the Press and other
news items appearing in Press pertaining to Sessions Case No. 120/95, it amount to denial of fair
trial? Can on the basis of these news items contempt proceedings be initiated against the guilty?

(VI)What guidelines and safeguards, if any, can be provided so that right of the accused to have a
fair trial is not prejudicated.

(7) At the outset Mr. S.K.. Aggarwal, Standing Counsel for the State, challenged the jurisdiction of
this Court to entertain this writ under Article 227 of the Constitution of India read with Section 482
Criminal Procedure Code ..

(8) The objection raised is whether in a writ of certiorari the petitioner can challenge the judicial
orders passed by a Court of competent jurisdiction? His contention was that validity of these two
judicial orders dated 8th February, 1996 and 15th February, 1996 respectively cannot be gone into
nor assailed in a writ jurisdiction. Proper course for the petitioner was to file a revision petition or
an appeal as the case may be. The jurisdiction of this Court under Article 227 or for that matter
under Section 482 Criminal Procedure Code . is limited, the inherent jurisdiction cannot be
exercised in this case nor this Court under the garb of the inherent jurisdiction assume the power of
an Appellate authority. To support his contention Mr. S.K. Aggarwal placed reliance on the decision
of the Supreme Court in the case of Naresh Shridhar Mirojkar & ors. Vs. State of Maharashtra and
anr., . There the Apex Court observed that judicial orders passed by the High Court in or in relation
to proceedings pending before it are not amenable to be corrected by a writ of certiorari. If a judicial
order has been passed by a Court in exercise of its inherent jurisdiction and its. sole purpose was to
help the administration of justice then any incidental consequence which may flow from the order
will not introduce any constitutional infirmity in it.

(9) Relying on these observations Mr. Aggarwal contended that since the impugned orders were
passed by the Trial Court in exercise of its inherent powers to help the administration of justice,
hence in this writ petition the merits and demerits of the same cannot be gone into as these are not
amenable to the writ jurisdiction. Two different orders passed on two different dates cannot be
questioned in this writ petition.

(10) Refuting this argument of Mr. Aggarwal, Mr. R. K. Anand, Senior Advocate for petitioner
contended that this Court has ample powers to correct the error in exercise of its supervisory
jurisdiction under Article 227 of the Constitution of India and also under Section 482 Criminal
Procedure Code . For challenging a judicial order which is palpably erroneous the petitioner need
not have to file a revision or the appeal. To strengthen his contentions, Mr. R.K. Anand placed
reliance on the following decisions namely T. C. Basappa Vs. T. Nagappa & anr., , Dwarka Nath Vs.
Income tax Officer, Special Circle, D Ward, Kanpur, Air 1966 Sc 61, Harbans Lal Vs. Jagmohan
Saran, , Anar Devi Vs. Nathu Ram, and Morgan Stanley Mutual Fund Vs. Piyush Aggarwal & anr. .
The Apex Court in the above cases laid down that a writ of certiorari can be issued against the order
of the Subordinate Court, particularly when that order suffers from error of jurisdiction or from
breach of principles of natural justice or there appears to be error of law. I find force in the
submission of Mr. Anand that in writ petition erroneous order can be corrected. But at the same

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time we cannot loose sight of the fact that while exercising supervisory power or the inherent
jurisdiction the Court cannot re-appraise the evidence. It is only when the error is apparent either of
law or of fact that the Court in its inherent and supervisory powers would act. Even the case relied
by Mr. Aggarwal i.e. Naresh Shridhar Mirajkar (supra) supports this conclusion. In that case, the
Apex Court opined that where a judicial order passed by a High Court prohibits the publication in
the newspapers of evidence given by a witness pending hearing of the suit, the question for
consideration would be; is it amenable to be corrected by a writ of certiorari by the High Court
under Article 227 ? It was observed that this question had two broad facets, namely. (1) does the
impunged order violate the fundamental rights of the petitioner under Article 19(1)(a), (d) and (g)
and if it does (ii) is it amenable to the writ jurisdiction of the Apex Court under Article 32(2). After
analysing various provisions,, the Court opined that if a real conflict arises between, fair
administration of justice itself on the one hand and public trial on the other, inevitably public trial
may have to be regulated or controlled in the interest of administration of justice. The Court further
observed that:- if the judicial pronouncement by the Court is in relation to a matter brought before it
for its decision, it cannot be said to effect the fundamental right of a citizen under Article 19(1). But
if the impunged order is, in a sense, an order of collateral nature, it has no direct relation with the
decision of the dispute which had been brought before the Court in the proceedings between the
parties, then the thing is different. It is only when a judicial pronouncement is in relation to the
matter pending before the Court that the writ of certiorari will not lie and that order is not amenable
to the inherent jurisdiction of the Court. But if the order is not in relation to trial but touches the
administration of justice, then this Court has jurisdiction to correct such an error.

(11) Keeping this principles in mind it can safely be concluded in the facts of this case that since the
impunged orders touch the administration of justice and not the merits of the case hence these
would be amenable to the writ jurisdiction. This disposes the jurisdictional objection raised by
standing counsel for the State. We now turn to the points raised by the petitioner. Points No. 1 & 2 :

(12) So far as the question of postponement or suspension of trial, to my mind, it is neither

sustainable in law nor on facts. There is in fact no right vested in the petitioner to get the session
trial once started postponed. As per the mandate of the Legislature given in Section 167 Criminal
Procedure Code . the investigation must be done expeditiously. The challan should be filed within
the prescribed period of 60 days or 90 days as the case may be. This shows that the intention of the
Legislature was that investigation should be completed expeditiously and challan be filed within the
prescribed period. It does not mean that investigating agency should wait till the last date for filing
the challan. The outer limit is prescribed under Section 167 Criminal Procedure Code . but not the
minimum limit. If the investigation is complete, the challan has to be filed at the earliest, otherwise
motive can be assigned against the Investigation Agency. Similarly, section 309 Criminal Procedure
Code . provides that in every enquiry or trial the proceedings be held as expeditiously as possible,
and if possible, on day to day basis. Thus, there is a mandate of the Legislature to expedite the
criminal trials so that the accused an under-trial may not have to face prolonged agony of he trial
and jail. By expediting the matter neither the investigating agency nor the prosecuting agency has
committed any crime nor shown any bias. The allegation of the petitioner that he has been deprived
of fair trial because of expeditious filing of challan, on the face of it, appears to be frivolous,
erroneous and without substance. Such an argument is not tenable because of Article 21 of the

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Constitution of India which guarantees expeditious trial not under the Code of Criminal Procedure.
Law expects that criminal trial particularly where the accused is in custody should be disposed of at
the earliest. Such is mandate available under Section 309 Criminal Procedure Code . It appear that
the relief of postponement of trial has been sought by the petitioner with the motive and intention to
delay the proceedings, If petitioner was not expecting fair trial he could have got the case
transferred. But unfortunately for the petitioner his request in this regard had been declined by the
Supreme Court. No doubt the decision of the Apex Court at the time of dismissing his application for
transfer was not on merits but the fact remain that while dismissing the same in limini all those
facts must have been urged by the petitioner. These must have been considered and yet the Apex
Court declined his request. Alternatively he could have asked the Trial Court to hold the session case
in camera. But no such request appears to have been made. Such request if made would have been
considered by the trial court as per the provisions of Section 327 read with Section 324 Criminal
Procedure Code . In fact number of safeguards already exist under the Criminal Procedure Code .
itself which exists in order to protect the interest of the accused. Hence the question of suspension of
trial or postponement of it does not arise. By proceeding the trial expeditiously to my mind, no
prejudice has been caused to the petitioner. In fact Article 21 envisages that the trial should be
expedited. On the contrary postponement of the trial would cause prejudice to the petitioner who is
in judicial custody. Even otherwise postponement of trial is not an answer nor a remedy. It appears
the petitioner was aware of this position of law that is why in the alternative he has sought
guidelines from this Court in order to protect his interest. Taking into consideration the provisions
of the Constitution and of the Code, I am of the considered view that expeditious trial by no means
can prejudice the cause of the petitioner. Neither on account of expeditious trial nor on account of
news items appearing in the press, the criminal trial once started can be postponed nor the
petitioner can be discharged for this reason. For the reasons discussed above, those points cannot be
answered in his favour. Point No. 3 (13) This point was given up during the course of arguments.
Points Nos. 4 & 5 (14) The main plank of Mr. R. K.. Anand's arguments is denial of fair trial because
of excessive public reporting of this case by the media. Assailing the observation of the Trial Court as
appearing in the impugned order whereby the Court presumed that since trial had not commenced
hence these news items could not prejudice the cause of the petitioner, Mr. Anand contended that
Court in presuming that trial had not commenced fell in grave error. In fact the proceedings were
imminent, therefore, any statement made pertaining to this case prejudiced the cause of the
petitioner. It amounted to interfering with the administration of justice. The Trial Court ought to
have taken action against the guilty even though the proceedings had been initiated subsequently to
the making of those statements. Arrest of the petitioner was imminent and so was the filling of the
challan, hence the proceeding being imminent it was wrong to observe that proceedings were not
pending. To support his contentions that when proceedings are imminent any prejudicial statement
made would effect the administration of justice, reliance has been placed on the decision of Supreme
Court in the case of A. K.. Gopalan V. Nourdeen . There, the Supreme Court was dealing with the
matter under the Contempt of Courts Act and opined that:- "MERE lodging of Fir and the accused
having not been arrested, does not prove imminence of proceedings, However, where there was no
proof that arrest was imminent when the impugned statement was made, it cannot be said that
proceedings were imminent when the statement was made, Ordinarily, until the accused is arrested,
it cannot be said that any proceedings in a Court are imminent against that person because he may
never be arrested or he may be arrested after a lapse of months or years,. But when such a statement

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though made before the arrest of the accused but published after the arrest of the accused the
publication is when proceedings are imminent and can be subject matter of a charge for contempt of
Court."

(15) Relying on these observations, Mr. Anand contended that the news items even if published in
the press before the filing of the challan still as the proceedings in this case were imminent hence
the author of these statements committed Contempt of Court. Reliance was also placed on the
decision of Madras High Court in the case of P.S. Tuliaram Rao V. Sir James Taylor, Governor of
Reserve Bank of India & Ors. Air 1939 Madras 257 and Patna High Court in re; State of Bihar V.
Shanker Lal Kairwal Air 1952 Patna page 2. In Patna case a news item was published which was
circulated. The Court after going through that article opined that the circulation of the same
interfered with the due course of justice. The article was beyond the limit of fair criticism. It created
a bias and improper motive to the S.D.M. who issued the arrest warrants. By doing so the writer of
the article lowered the authority of the Court. In almost similar circumstances the American . Court
in the case of Samuel H. Shepherred V. E. L. Maxwell, 384 Us 333 observed that :- "WHERE
prospective witnesses were interviewed by news media which in many instances disclosed their
testimony and the full verbatim testimony of the witnesses who had testified was available in the
press to the witnesses who had not yet testified and the Trial Judge made no effort to control the
release of such leads. information and gossip to the Press by the prosecuting Attorney, it amounted
to denial of fair trial."

(16) Relying on these authorities Mr. Anand contended that since the press has reported the
verbatim evidence of the expert and of the witnesses who have yet to be examined hence contempt
has been committed by the author or publishers of the news items as well as Editor of the Press
besides senior police officials.

(17) There is no quarrel with the proposition as law laid down in 'the above authorities cited by Mr.
Anand, but the facts of each case have to be seen on there own merits. There cannot be any
disagreement with the proposition that, if the statement made by the investigating or prosecuting
agency or by any other person including the police officials interfered with the administration of the
justice or in any way lower the dignity of the Court, then the Court would be justified in initiating
contempt proceedings. Court cannot in such eventualities shut its eyes nor would refuse to take
notice on the ground that these news items were published before filing of the charge sheet i.e.,
before commencement of the Trial. The arrest of the petitioner and the proceedings in this case were
admittedly imminent, therefore, any statement made to the press which prejudiced the cause of the
petitioner or interfered with the administration of justice has to be dealt with in accordance with
law. But the question remains to be considered is, whether any of the news items published in the
press the clippings of which have been placed on record, in any way, amounts to denial of fair trial
or hampered the administration of justice ? If answer to these questions is in the affirmative, then
Court will initiate contempt proceedings against all those responsible for the same. But, by no
stretch of imagination, it can be said that till the action of contempt is taken, session case No.
120/95 cannot proceed.

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(18) The concept of 'denial of a fair trial' has been coined by authoritative judicial pronouncements
as a safeguard in a criminal trial. For the purpose of understanding as to what amounts "denial of a
fair trial", we have to fall on the judicial decisions where in the Courts have laid down the
circumstances in which it would amount to denial of a fair trial. Those can be summed up as follows:
(i) obstruction or interference in the administration of justice vis a vis a person facing trial: (ii) The
prejudicial publication affecting public which in term affect the accused amount to denial of fair
trial. Similarly, (iii) prejudicial publication affecting the mind of the Judge and (iv) suggesting the
Court as to in what manner the case should be proceeded.

(19) Keeping the above principle in mind, we have to scrutinise the news items appearing in the
Press and as produced on the record. My attention in particular has been drawn to the news items
published on 11th July, 1995 wherein Maxwell Periera stated that thus, "Enough Proof to hang
Sashil, says Pereira" and of 31st July, 1995 under the heading "Expert evaded police request". An
another news item "Sushil Naina Chargesheet reveals a love triangle" and press report dated 25th
July, 1995 under the heading "DNA tests leave no room for doubt" and of 24th July, 1995 another
news item appearing in the Indian Express under the heading "Confidential Dna report handed over
to police ". Photographs showing that the women protestors at Patiala House Courts demanding that
the police should handover Sushil Sharma to the public. Even students hold "Chhatra Adalat for
hanging Sushil". Photographs indicating the "Witnesses to a gory event' appearing in the newspaper
of 6th July, 1995. Yet another news item appeared in the Express News Service on 13th July, 1995
under the heading "It was Naina's body, Sharma told Pereira',. In Patriot of 29th July, 1995 news
item appeared "Sushil was 'obsessed' with Naina's 'affairs' Police" in which the photograph of Delhi
Police Chief Nikhil Kumar and Additional Commissioner Maxwell Periera briefing the press about
the charges against the accused in Naina Sahni murder case. In another news item of 14th July, 1995
it was stated "NAINA'Sbody sent for 2nd Postmortem" and on 15th July, 1995 the news item
appeared under the heading "Doctor involved in first autopsy may be booked".

(20) Mr. R.K. Anand, Sr. Advocate, by high-lighting those news items wanted this Court to believe
that a parallel trial has been held by the Press against the petitioner. These news items show that by
writing one sided storey press aroused the emotions of the public at large which in turn vitiated, the.
atmosphere against him. It would definitely affect the mind of presiding. Judge, who is after all a
human being. After reading these news items a layman is going to get prejudiced and so would be
the witnesses. The threat to. book the doctors who conducted the first autopsy has caused prejudice
to the petitioner. Doctors under fear would, not speak truth. It is in this backdrop, Mr. Anand
contended that fair trial cannot be ex pceted. The media has infact held a parallel trial and the
investigating and prosecuting agencies end in particular Mr. Maxwell Priera, senior police official by
revealing the evidence even before the trial started and by giving verdict thereby holding the
petitioner guilty and sentencing him to be hanged committed contempt of the Court. In such vitiated
atmosphere, if the petitioner is directed to the face trial he cannot expect unbiased testimony nor
fair tratment. Maxwell Periera has not .denied the news item dated 11th July, 1995 wherein Maxwell
Periera is stated to have sufficient proof to hang the petitioner. This shows scant regard for the
authority of the Court. Mr. Periera has by saying so assumed the role of a Judge. By his utterances
Mr. Periera has expressed opinion on the merits of the case and also suggested what sentence is to
be awarded to the petitioner. Such statement having been given to the Press for public consumption

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amounts to over reaching the Court. Innocent public is going to believe what senior police officials
say. Despite such statement of police officer, if on merits the Judge acquits the petitioner, then the
acquittal in such circumstances would be misunderstood by the public, in their eyes the image of the
judiciary would be lowered thus effecting the administration of Justice. Senior police officials
namely Mr. Maxwell Pariera as well as the Commissioner of Police not only disclosed the testimony
of the witnesses who are. yet to be examined but also discussed in detail the expert report of D.N.A,
Finger Print Analysis, which report even the expert Dr. Lalji Singh refused to disclose to the Press on
25th July, 1995 being a secret document. Dr. Lalji Singh came to Delhi with the report. He was
asked by the press to disclose about the report but Dr. Singh refused to divulge the same on the
ground that the report had to be kept confidential otherwise the Court would take action against
him. The very next day verbatim report appeared in the Newspaper. Divulgence of that report to the
Press could only be the handiwork of the police. This report has still to be proved and testified in the
Court but before reaching the Court it has already been discussed and analysed in the Press. By
doing this the prosecuting Agency including Mr. Maxwell Periera and the Commissioner of Police
have committed contempt of the court. To support these conclusions reference was made to the
observations of English Court in the case of Attorney general Vs. Times Newspaper Ltd., (1973, 3 All
Eng- land Reports page 54. In that case the newspaper published a long and powerful article which
criticised the law relating to the liability of drug companies and the method of assessing damages.
The Court held that it was a fit case for initiating contempt proceedings because the article
published expressed an opinion on the merits of a specific issue which was before the Court for
determination. In such an eventuality when the prosecuting agency itself start divulging the
evidence which has yet to be produced before the Court it would amount to interference with the
administration of Justice. Reliance was also placed on the observations of the Supreme Court in the
case of S.P. Gupta & Ors. Vs. President of India & Ors. . In para 681 where the Court opined that :-
"PRESS exceeded its limits of fair reporting and fair comment by discussing the merits and demerits
of the grounds on which recommendations were made concerning the Judges or the truth or falsity
of the disclosed material. Evan then how could the Press before this Court finally adjudicate upon
the issues involved, pronounce its verdict, which it almost did. It amounted to holding a trial by the
Presss. The action of the Press was deprecated in that case."

(21) To the same effect are the observations of the Supreme Court in case of Mohinder Singh Gill Vs.
Chief Election Commissioner, New Delhi & Ors.., and Supreme Court of Us in the case of Nebraska
press Asso. V. Stuart Vol. 49 L.E.D. 2nd U.S. Page 693.

(22) Admittedly comments on a case which is subjudice or to suggest, that the Court should take a
certain course in respect of a matter before it. undoubtedly constitutes contempt, and honesty of
motive cannot remove it from this category. For, if this wore to be allowed, persons in a position to
assist the Court by their evidence might be prevented from coming forward and persons appearing
as witnesses might be influenced in their testimony. News items whereby Mr. Maxwell Periera said
he has sufficient proof may or may not effect the cause of the petitioner. I am not expressing any
opinion on the same because matter regarding his making such a statement is subjudiced in
Criminal Writ Petition No. -417/95. But as regards other news items, to my mind, do not touch the
merits of the case. Even otherwise media's attraction to this case and contributing to the building up
of public interest in no way establish that the case would not be decided on its own merits.

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Conviction, if any, would be based not on media's report but what facts are placed on record. Judge
dealing .with the case is supposed to be neutral. Now if what petitioner contends regarding denial of
fair trial because of these news items is accepted it would cause aspiration on the Judge being not
neutral. Press report or no reports, the charge to be framed has to be based on the basis of the
material available on record. The charge cannot be framed on extraneous circumstances or facts
dehors the material available on record. While framing the charge the Court will from prima facie
view on the basis of the material available on record. To my mind, the apprehension of the petitioner
that he would not get fair trial is perfunctory and without foundation. None of the news items, if
read in the proper prospective as a whole, lead to the conclusion that there is any interference in the
administration of justice or in any way has lowered the authority of the Court. The Trial Court has
rightly observed that after the charge sheet has been filed, if the Press, revealed the contents of the
chargesheet it by itself by no stretch of imagination amounts to interference in the administration of
justice. The evidence of D.N.A. which Mr. Anand mentioned appeared in the Press after the same
had been placed on record. On this evidence there is neither any suggestion nor criticism by the
Press. It has only published what Dna has said in its report, the publication of that would not
amount to denial of fair trial. As regards demonstration by Women Organisations or by students
that also cannot mean interference in the administration of justice nor can it in any manner, hamper
the proceedings nor can amount to denial of fair trial to the petitioner. Even in highly sensitive
cases, the Session trial had been conducted by the Courts of Sessions without fear or favour for
example to count few cases which are commonly know has "Billa Ranga Case". "Baba Nirankar",
"Sudha Gupta" and of Shalini Malhotra". In all these cases enough publicity was given. Statements
of various organisations and of police were published, yet neither the trial was postponed nor the
accused was discharged. The Sessions Courts decided the cases on its own merits. One cannot gag
the press. The petitioner has not been able to point out any instance to show that Court has been
carried away by these news items or press reporting's or of media's publicity. So far only chargesheet
has been filed. The charge has yet to be framed. The case had to be adjourned by the trial court
because of this writ petition. At this preliminary stage When the charge has yet not been framed, to
my mind, Do prejudice has been caused to the cause of the petitioner. Sufficient time has already
elapsed between the publication of these news items i.e. of July/August, 1995 and of now when the
case would be taken up by the Trial court for framing of charge, of course, if the case is made out. As
regards the initiation of contempt proceedings, Mr. S. K.. Aggarwal, Standing Counsel for the State,
rightly contended that in view of the public interest litigation already pending, this Court or for that
matter Trial Court could not have initiated contempt proceedings against the Senior Police Officials.
Admittedly, in this Court, Public Interest Litigation, filed by one Dr. Janak Raj Jain, and registered
as Criminal Writ Petition No. 417/95 seeking initiation of contempt proceedings against Mr.
Maxwell Periera, because of his statements made in Press, is pending. Dr. Janak Raj Jain has based
his relief on the .basis of a press report where it is stated that Maxwell Periera Addl. Commissioner
of Police stated "We have sufficient evidence to hang Sushil Sharma". In view of the pendency of this
petition, it was not necessary for the Court to adjudicate the matter of contempt on the same cause
of action. It would not be correct to contend that since the petitioner is not a party in that Criminal
Writ Petition hence his right has been effected. This argument does not cut any ice as the same is
without substance. In Contempt of Court matters, Courts are not there to protect the private rights
of a party to criminal proceedings, but are there to prevent interference with the administration of
justice. Once the High Court is seized of the matter with reregard to the statement of Mr. Preira, that

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became an issue between the Court and the alleged contemnor. In case that petition is withdrawn by
the petitioner for any reason, in that eventuality present petitioner can get his application for
initiation of contempt proceedings revived before the Trial Court. To that extent it is made clear that
his application to initiate contempt proceedings will be kept pending. This Court in the case of D. B.
Vohra reported in 1974 Crl. L.J. 899 opined that in order not to prejudice the accused in their trial,
the Contempt proceedings in the High Court be adjourned till the decision in the criminal case.
Similarly, in the present case relying on these observations it can be said that contempt application
filed by the present petitioner shall be kept pending till the decision of the Criminal Writ Petition
No. 417/95. So far as the initiation of contempt of court against the Press is concerned, prima facie,
no case is made out. In all these news items, press has stated as a matter of fact what has been
placed on court record by the prosecution and what is happening in the society after the murder of
Naina Sahni. Simply because some party a so-called Social Welfare Organisation headed by a
political personality felicitated the witnesses who were responsible for detecting the fire/flames
coming out from the Tandoor and then retrieved the charred body by itself can neither amount to
interference with the fair trial nor with the administration of justice nor can be a basis for initiation
of contend proceedings.

(23) In none of the judgments relied by Mr. Anand the facts are similar to the present case. For
example in the case of P. C. Sen (Supra) Contempt of Court was committed because petitioner
therein was deterred from prosecuting his proceeding. In the case of Shanker Lak Khairwal (Supra)
the article went beyond the limit of fair criticism by imparting vies and improper motive to Sdm who
issued Arrest Warrants. By doing so it was held that the writer lowered the authority of the Court. In
the case of Samuel H. Shephered (Supra) prospective witnesses were interviewed by news media
and they disclosed their testimony much before the start of the case. But that is not the case in hand.
In the case of A. K. Gopalan (Supra) newspaper published a long and powerful article which
criticised the law relating to the liability of drug companies and the method of assessing damages in
a proceeding in Court, it was in this circumstance that contempt proceedings were initiated against
the Times Newspaper. By publishing the news items including reporting of demonstrations, views of
some of the people and the evidence filed on record including Dna expert report, the press has
stated what has come on record. There is no criticism of any kind of the evidence in any manner. It
is more a case of propriety rather than contempt. In fact people at large have a right to know in
order to be able to take part in such like proceedings. The right to know is a basic right which citizen
of a free country aspire in the broader horizon of the right to live in this age in our land under the
Constitution of India.

(24) By seeking guidelines the petitioner wants this Court to presume that fair trial has already been
hampered. I am afraid, not a single instance has been pointed out by the petitioner when because of
these news items he has been prejudiced. Apprehension of the petitioner has thus no substance. Not
a single instance has been quoted to establish that the prosecuting agency or for that matter
investigating agency obtained any instruction from any political party or conducted the investigation
under the direction of a political party. At the same time there is no denying the fact that judicial
reporting should be judicious. Freedom of speech should not be limited to any greater extent than is
necessary, but it cannot be allowed where there would be real prejudice to the administration of
justice. The path of criticism is a public way. That right puts greater responsibility upon those who

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take up the responsibility to inform. Justice is not a cloistered virtue, she must be allowed to suffer
the scrutiny and respectful even though outspoken comments of ordinary man. Parties should be
protected from scurrilous abuse. In case of excessive publicity of Court proceedings, the proceedings
can be held in camera in order to avoid the same. This power/discretion shall be exercised only by
the Judge concerned who is dealing with the matter, keeping in view the interest of administration
of justice and to prevent any serious prejudice to be caused to the accused.

(25) With these observations the petition stands disposed of.

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