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CS no.184/18 Ishrat Masroor Qudussi VS Foundation for Independent Journalism 21.04.2018. ORDER
1.
By way of this order, I shall dispose off application filed u/O 39 rule 1 & 2
CPC by the plaintiff. Case of the plaintiff 2.
Present is a suit for temporary and mandatory injunction filed by the
plaintiff against the defendants alongwith an application for exparte ad interim injunction. 3.
It is the case of plaintiff that he was appointed as Judge of High Court of
UP at Allahabad on 18.04.1995 and retired as Acting Chief Justice of High Court of Chattisgarh on 17.06.2002. In an illustrious career spanning over 17 years, plaintiff has earned impeccable reputation and has otherwise been held in high esteem by the Bar and Bench. Since retirement, the plaintiff is practicing as a Sr. Advocate before Hon'ble Supeme Court of India. 4.
It is further the case of plaintiff that CBI defendant no.5 has filed a
preliminary inquiry on the basis of a tip off that the plaintiff and other persons have been involved in the commission of offences punishable under Prevention of Corruption Act/IPC. On the basis of said Preliminary Enquiry a regular FIR was also registered against the plaintiff and few other individuals. Plaintiff is on bail in the said FIR. CS No. 184/18
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5.
It is the case of plaintiff that on 15.01.2018, the defendant no.1 published
an article titled, Medial College Bribery Scam: CBI tapes talk of prasad for temple in Delhi, Allahabad, authored by defendant no.2 which reproduced the Preliminary Enquiry report and the 'transcript of alleged tape recorded conversation' dated 03.09.2017 and 04.09.2017 between the plaintiff and other persons. 6.
It is further the case of plaintiff that on 16.01.2018, defendant no.3
published a similar article in Times of India Newspaper, copy of which is already on record. The said article also reproduced extracts of alleged conversation dated 03.09.2017 and 04.09.2017 between the plaintiff and other persons. Further defendant no.3 also aired a show on their Channel Times Now and also published article on their website regarding the same. The said article also reproduced extracts of the above mentioned 'tape recorded conversation'. Further defendant no.4 also published an article along with transcript, copy of which is on record. 7.
It is further the case of plaintiff that said publication along with transcript
gives an impression to the reader that plaintiff was talking of fixing the said case. It is further the case of plaintiff that plaintiff does not know that how defendant nos. 1 to 4 received copies of purported transcripts as the same are confidential documents and even plaintiff is not supplied with a copy of it. 8.
It is further the case of plaintiff that at present he is 68 years of age, has
had an illustrious and blemish free career spanning more than 40 years in legal fraternity. The said reckless and irresponsible reporting of defendant nos. 1 to 4 seeking to increase their circulation and TRPs, lowered the reputation of the CS No. 184/18
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plaintiff, have caused grave and irreparable injury to the reputation of the plaintiff. Such acts of defendant nos. 1 to 4 have lowered the esteem of the plaintiff in the estimation of the public in large, colleagues, staff, piers and members of his social circle. The said acts of the defendants are per se defamatory and have harmed his impeccable reputation in the public estimation. 9.
It is further the case of plaintiff that the Courts in several judgments
repeatedly urged press to refrain from trial by media. It is further the case of plaintiff that administration of justice needs to be kept aside from any extreme influence whatsoever. 10.
Further any publication which gives excessive worse publicity to an
accused and constitutes an interference with the Courts of justice, could be a ground for grant of injunction. 11.
It is further the case of plaintiff that the said publication besides being
interfering with the administration of justice, would also be against the principle of fair trial and open justice. It is further the argument that Press cannot convict anyone. Further the freedom of Press under the Constitution is not higher than the freedom of the citizen and is subject to restrictions imposed under Article 19(2) thereof. It is further the case of plaintiff that such news as in the present case which is published in the mass media is believed by the reader and therefore media has to ensure what has been published is accurate. 12.
It is further the case of plaintiff that defendant no.6 Union of India has been
made a party as defendant no.6 has regulatory control over defendant nos. 1 to 4 beside such other media houses which are not made party here too. It is further CS No. 184/18
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the case of plaintiff that such publication have defamed the plaintiff in the eyes of his family members, colleagues and friends, many of whom had expressed doubts on the integrity of the plaintiff believing the article to be true. 13.
It is further the case of plaintiff that a double meaning has been tried to be
given to the said transcript. Further said transcripts are under investigation and yet to be proved. 14.
It is further the argument of the plaintiff that it is the functional right of the
media to gather and convey information to the public and to comment on the administration of justice, including cases before, during and after trial without violating the presumption of innocence. But in this case media has infringed his right of presumption of innocence. The said articles show that the media has already pronounced plaintiff guilty and has prejudged the issue. It is further argued that grant of fairest of the opportunity to the accused to prove his innocence is the object of every fair trial. It is again pointed out that it is not known to the plaintiff that how said media houses have come to lay their hands on such transcripts and they may be directed to file affidavit regarding the same. 15.
It is further the case of plaintiff that as plaintiff is prime alleged accused in
the present case, hence media be restrained from publishing any proceedings connected with the present FIR. 16.
Further an application under Section 82 is moved by plaintiff there by
seeking for leave to institute the suit without serving notice under Section 80(1) CPC. 17.
Reliance is placed on the following judgments in his support by plaintiff
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i.
Sahara India Real Estate Corporation Ltd & Ors. VS Securities &
Exchange Board of India & Anr., 2012 (10) SCC 603. ii.
Naveen Jindal Vs M/s ZEE Media Corporation Ltd & Anr., 2015 (29) DLT
605. iii.
Swatanter Kumar VS. The Indian Express Ltd & Ors., 2014 (207) DLT 221
iv.
R K Anand, Registrar, Delhi High Court Vs I U Khan, Registrar, Delhi High
Court., 2009 (8) SCC 106 v.
Dr. Shashi Tharoor VS. Arnab Goswami & Anr., 2018 (246) DLT 279.
vi.
Sidhartha Vashisht VS State (NCT of Delhi)., 2010 (6) SCC
1.
Case of Defendant no.1 18.
Defendant no.1 filed reply to Order 39 Rules 1 and 2 CPC application. It is
the case of defendant no.1 that right to freedom of speech is paramount and is not liable to be restricted with mere application of defamation. Further defamation means actual defamation and not any impugned or anticipated defamation. Only a clear final judicial finding that any publication constitutes defamation can be ground numerated in Article 19 (2). Further future discussion on the surrounding subject is also part of freedom of expression of the answering defendant. Further whatever is the content of one publication is not a ground on which injunction to future articles may be granted. It is further the case of defendant no.1 that the report is fully justified and is based on reasonable verification of the truth and is also a fair comment by defendant no.1 with reasonable belief in his truthfulness based on reasonable verification. It is further the case of defendant no.1 that CS No. 184/18
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issue involved is a matter subjudiced before the said Court by which bail was granted to the plaintiff in FIR No. RC10(A) (ACR)/2017. Further it is the case of defendant no.1 that he is being prosecuted in the said FIR and hence matter is subjudice. It is further argued that the present Court does not have any jurisdiction. It is further argued that power to order postponment of publication of subjudiced matters can only be exercised by Supreme Court of India and High Court alone under their inherent powers. It is further the case of defendant no.1 that the reporting by defendant no.1 is based on a complaint made by Shri Prashant Bhushan to five sitting Supreme Court Judges in which these transcripts and phone conversations were annexed. Hence these transcripts were already in public domain as they were filed with annexure by Shri Prashant Bhushan before Hon'ble Supreme Court. Other newspaper has published report regarding the same before publication by defendant no.1. Further free comment and discussion by the media on the matters that are in public domain are open to free comment. Further injunction against publication will not be granted when the publication is not proven or shown to be false. Further plaintiff has not been able to point out any deliberate falsehood in the article. Further these allegations are stated in the FIR itself also placed on record by the plaintiff himself.
Case of defendant no.3 19.
It is the case of defendant no.3 that publishing of news articles in the
Times of India on 16.01.2018 and a show aired on Times Now and another article which was published on website had been in public domain prior to publishing of CS No. 184/18
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the said article. It is the case of defendant no.3 that plaintiff has pleaded lowering the esteem of plaintiff in the eyes of public but no prima facie opinion on the same is possible unless facts and circumstances are established beyond reasonable doubt. Further the said publication was based on the information as received by the answering defendant and believed to be true and correct. Further no injunction against pre publication should be granted by Courts if the defendant claims to justify the said publication. Further the remedy if any arises after publication and not prior thereto. Further no injunction can be granted against an article to which defendants plead fair justification and fair comment. Further freedom of press is sacrosanct under Article 19 (1) A of the Constitution of India. Further truth is the ultimate defence and fair comment is also protected against freedom of speech and expression. Further newspapers are permitted to have opinions on published articles in relation to provide information to public persons. Further plaintiff is a retired judge of the Hon'ble High Court and has been accused for bribery and matter involves huge interest from public at large. It is further argued that said article is merely reporting of facts. The transcripts of the conversation was already available in the public domain. The articles only refer to the plaintiff as accused and one on whom charges have been levelled. Further plaintiff was arrested is a matter of fact. Hence, defendant has done only true and correct factual reporting. Further an article was published by the wire prior to the article of Defendant no.3 and it was in public knowledge. Further no injunction is maintainable when damages can be claimed.
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Case of defendant no.4 20.
It is the case of defendant no.4 that plaintiff has erroneous understanding
of the functining of www.abp news.com as well as ownership of the same. The website was not owned by answering defendant and the answering defendant has no right or control over the said website. Further publication which was carried out on the website of ABP news is outside the domain of defendant no.4 which is a company. Hence a separate application against under Order 1 Rule 10 CPC is also moved for removal of name of defendant no.4 from the array of parties.
Case of defendant no.5 21.
Defendant no.5 is CBI which has not filed any reply to application under
Order 39 Rule 1 and 2 CPC despite given opportunity nor any written statement is filed on record till date.
Case of defendant no.6 22.
Defendant no.6 is Union of India which has mentioned in its reply that
Press Council of India, NBSA, BCC, EMMC, are various authorities set up by Government for exercising regulatory role on the print media and TV Channels. It is denied that any cause of action exists in favour of plaintiff to file the present suit. It is further averred that th suit is not maintainable against defendant no.6. Further defendant no.6 has no role to play in the said publication or telecast thereby harming the reputation of the plaintiff. 23.
Following is the list of judgments relied upon by defendants:
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i.
R. K. Pachauri Vs. Bennett Coleman and Company Ltd & Ors. Order dated 13.02.2018 in CS no. 57510/2016,
ii.
Fraser Vs. Evans & Ors Court of Appeal (1969) 1 All ER 8,
iii.
Mother Dairy foods & Processing Ltd, Vs. Zee Telefilms.,
117, (2005)
DLT 272, iv.
Ram Jethmalani Vs. Subramaniam Swami, 126 (2006) DLT
535,
v.
Tata Sons Ltd VS Greenpeace International, 178 (2011) DLT 705,
vi.
R. J Rajagopal Vs. State of Tamil Nadu, AIR 1995 SC 264,
vii.
Khushwant Singh Vs. Maneka Gandhi, AIR 2002 Delhi 58,
viii.
Rajiv Khosla VS. Delhi High Court Bar Association, CS (OS) No. 2149/2013 Order dated 13.11.2013 Dehi High Court,
ix.
Reliance Petrochemical VS. Proprietors of Indian Express Newspapers, AIR 1989 SC 190,
x.
R. Rajagopal Vs. Jauyalalitha, AIR 2006 Mad 312,
xi.
His Holiness Shamar Rimpoche Vs. Lea Terhune, AIR 2005 Delhi 67,
xii.
FIITJEE vs. Nitin Jain, FAO (OS) no. 294/2010 Delhi High
xiii.
Sahara India Real Estate Corporation Ltd Vs. SEBI2012 (10) SCC603
xiv.
Swatanter Kumar Vs. The Indian Express Ltd & Ors., 2014
Court, (1) HCC
(Del) 572, xv.
Shobhana Bhartia & Ors. VS NCT of Delhi,
xvi.
NJ Nanporia Vs. Brajendra Bhowmick,
xvii.
Nishika Properties Pvt Ltd & Anr. Vs State of West Bengal & Anr.
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Reasons for decision 24.
Though defendant nos. 1 to 4 have filed their separate reply to application
under Order 39 Rule 1 and 2 CPC but the arguments raised by defendant nos. 1 to 4 are more or less the same. Hence instead of individually addressing the same, I shall address the issues raised by defendants collectively. 25.
The first and the foremost issue raised by the defendants is regarding
jurisdiction of the present case. It is argued that in subjudice matter, only Hon'ble High Court and Hon'ble Supreme Court in their writ jurisdiction have powers to grant injunction in publication or media order. However, in the present case only FIR was registered pursuant to which plaintiff was arrested and later on granted bail. The chargesheet is not filed as of now. Hence, the matter is not subjudice before any Court. Further defendants have not filed any document on record to show that the matter is subjudice before any Court. 26.
It is further the argument that Civil Court cannot grant injunction thereby
restraining the defendants from reporting any news or broadcasting any show related to the issue. However, there are several cases placed on record by both the parties namely Shashi Tharoor Vs. Arbab Goswami, Naveen Jindal Vs. Zee Media, Swatantar Kumar Vs. Indian Express. All these cases were civil suits for injunction and damages. It was observed in Naveen Jindal case 19. The first question that arises in this case is whether this Court would have the powers to grant a pre publication or prebroadcasting injunction against the defendants. The above issue is no longer res intergra. A Constitution Bench of the Supreme Court in Sahara India CS No. 184/18
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Real Estate Corporation Ltd. And Ors. vs. Securities and Exchange Board of India and Anr., (2012) 10 SCC 603 (MANU/SC/0735/2012) concluded that in most jurisdictions there is power in the Court to postpone reporting of judicial proceedings in the interest of administration of justice.” Truth, Justification and Fair Comment 28.
It is the argument of defendants that where truth, justification and fair
comment is pleaded, and defendants had intention to prove the same, no injunction on the publication can be granted. However, defendants have not placed on record nor pleaded the basis of the truth. The media report is based primarily on said tape recorded conversation between the plaintiff and some other individuals. None of the defendants have placed on record or pleaded the source from where they procured the said tapes. It is the argument of all the defendants that they were not the first ones to publish the same and some other media house has already published it. Hence, it was in public domain. Only because some other media house has published one article before the publication by the defendants herein, it cannot be said it is in public domain or based on truth and fair comment. Taking the plea of public domain, defendants cannot be permitted to continue with the publication and telecast of unsubstantiated facts of a case where investigation is still pending. 29.
The said tapes are yet to be proved in Courts of law and even plaintiff has
not been provided with a copy of it. On the other hand, it is pleaded by defendants that Advocate Prashant Bhushan had given tape recorded CS No. 184/18
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conversation to Hon'ble Supreme Court judges along with his complaint hence it is in public domain. However, the said tapes, as per the own case of defendants, was given by Shri Prashant Bhuashan, Advocate to sitting Hon'ble Supreme Court judges only. Then how media houses came to lay their hands on it is not explained. 30.
Further media is fourth pillar of the society. It is expected to act in a
responsible way while reporting any news or publication. Whether the tape recordings relied upon by media houses are the same without any tampering, as are the original recordings with the CBI, the reply of the defendants is silent regarding the same. None of the media houses claimed to have untempered copies of the recordings with the CBI. 31.
The reply of the defendants is absolutely silent on these aspects. Further
even going by the assumption that the tape recordings, transcript of which is published by media houses, is the same as was with CBI, they are yet to be proved in a Court of law. At this stage, an FIR is registered against the plaintiff. On the basis of registration of the FIR, he cannot be pronounced guilty, when even chargesheet final report is not filed against him as of now. 32.
On the basis of registration of FIR against the plaintiff, stories are
published and telecasted regarding involvement of plaintiff in the said crime. When the genuineness, authenticity and source of the tape recordings is not explained by defendants, can the reporting be called a truth and fair comment especially in the way it has been done in the present case. No one knows about the authenticity or source of these tapes with media houses. This further raises CS No. 184/18
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doubt on the defence taken by the media houses of truth justification and fair comment. Further the defence taken that some other media house has published it before them, is not a ground to call the tapes within the public domain and as authentic. 33.
Rather it appears that in a fist of excitement, the article and contents of
tapes were published by defendants without even making effort to assess the source of the recordings and despite knowing the fact that their authenticity is yet to be proved in a Court of law.
Adverse Excessive Publicity 34.
Further in the present case, an FIR is registered against the plaintiff and
veracity of the allegations is yet to be tested in the Courts of law. By way of these publications an adverse excessive publicity is given to the plaintiff who is a retired High Court Judge. On the fair reading of the material available on record, it prima facie appears that the same can prejudicially affect the public mind and there is real and tangible risk to the plaintiff in not getting fair trial and open justice. 35.
In the present case prima facie it appears that there is actual defamation to
the plaintiff by way of articles already published on record and telecast made. The present plaintiff is a retired judge of a High Court. The degree of prejudice caused to the plaintiff and is going to be caused to the plaintiff due to publicity and publishing of the articles may put the plaintiff in an irreversible position by creating a public opinion which may create impediment in getting fair trial beside defaming him. Degree of prejudice caused and is going to be caused to the plaintiff in such CS No. 184/18
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cases as is the present one where plaintiff is seen with the eyes of public confidence and public faith by the people cannot be compensated in monetary terms. If some allegations are casted on a retired member of judiciary especially constitutional courts, the publicity has to be handled with care and caution as the damage caused to the reputation of such a person is irreversible to his reputation. Such loss of faith results in bad repute for the person and for the justice system as a whole. As already observed in Swartantar Kumar case and Sahara India case that in appropriate cases orders for postponment of publication orders can be passed after seeing the content of the publication and its effect. Such postponment orders operate on actual publication and can be passed for a limited period. 36.
It was observed in Swatanter Kumar Vs. The Indian Express Ltd. & ors.
(Emphasis supplied) “46. Thus, the interference with the course of justice as a term is not merely confined to the restraint order only on the publications relating to pending Court proceedings. But also, any publication which would given excessive adverse publicity to the accused or alleged victim which may likely to hamper the fair trial in future is also covered within the ambit and sweep of the enquiry of the Court as to what may constitute the interference with the course of the justice. This can be seen if one reads the following paragraphs of the judgment in Sahara India case wherein it has been observed thus: “To see that the administration of justice is not prejudiced or perverted clearly includes power of the Supreme Court/High Court to prohibit CS No. 184/18
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temporarily, statements being made in the media which would prejudice or obstruct or interfere with the administration of justice in a given case pending in the Supreme Court or the High Court or even in the subordinate Courts. In view of the judgment of this Court in A.K. Gopatan V. Noordeen, such statements which could be prohibited temporarily would include statements in the media which would prejudice the right to a fair trial of a suspect or accused under Article 21 from the time when the criminal proceedings in a subordinate Court are imminent or where suspect is arrested. Presumption of innocence is held to be a human right. (See Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra). If in a given case the appropriate Court finds infringement of such presumption by excessive prejudicial publicity by the newspapers (in general), then under inherent powers, the Courts of Record suo motu or on being approached or on report being filed before it by subordinate Court can under its inherent powers under Article 129 or Article 215 pass orders of postponement of publication for a limited period if the applicant is able to demonstrate substantial risk of prejudice to the pending trial and provided he is able to displace the presumption of open Justice and to that extent the burden will be on the applicant who seeks such postponement of offending publication. (emphasis supplied) 48. The Supreme Court in Sahara India case proceeded to observe that the superior Courts would assume jurisdiction not merely in cases, where there is an actual contempt committed by the media but also order of restraint to prevent the future committal of the contempt. It has been observed by the Supreme Court that in an CS No. 184/18
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exceptional cases where the publicity is so excessive that in a given case when it appears to the fair reporting but the prejudice is such that may result in fair trial, then the Court has no option short of the prevention of the publication even if some kind of fairness is ascribed to the publication. 50. It is seen that the Supreme Court has given only one instance of murder trial where such excessive adverse publicity even if be it fair may compel the Court to interdict and pas postponement order. It is only one such example where the degree of prejudice is so higher and the same may affect the fair trial and impact in administration of justice. Similar can be other cases where such degree of the prejudice exists due to the excessive publicity which may put the party in such an irreversible position by creating a public opinion which may create impediments in getting fair trial or interferes in the administration of the justice due to dominant adverse public opinion. Prima facie, I find that such degree of prejudice exists in the cases of persons who are seen with the eyes of public confidence and public faith like judges of the Supreme Court or the other superior Courts of justice. The said confidence reinforces the faith in the minds of the public about the fairness and credibility attached the institution of the justice. If some allegations are casted against any member of the Judiciary of the Supreme Court current or retired relating to his service in his office as a judge of the Supreme Court, the publicity relating to the same has to be handled with care and caution as the excessive adverse publicity relating to the said instance may not merely because a damage to the person himself (as it jeopardises his repute which he has earned for several years as serving officer of the institute) and put question mark on the integrity of the person, but it also could CS No. 184/18
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damage the public good due to the reason that the confidence of the public reposed in higher judiciary muchless the Apex body as a last hope for getting justice is seriously prejudiced. The said loss of faith in turn results in bad repute for the person and the institution of justice as a whole. Thus, the degree of prejudice in such case not merely creates an adverse public opinion but also casts doubts on the institution as a whole. The person who is accused of such allegations is seen with extreme suspicion and the same also creates a kind of pressure of adverse public opinion which may affect his likelihood of getting fair trial or may lead to interference in the course of the justice. 51. The Supreme Court in Sahara India case also proceeded to observe that the postponement of publication orders can be passed by the Court after seeking the publication and no general orders restraining future publications can be made but the Court will adopt a judicious approach while making the orders of postponements after considering the material available on record. In the words of the Supreme Court, it was observed thus: “The principle underlying postponement orders is that it prevents possible contempt. Of course, before passing postponement orders. Courts should look at the content of the offending publication (as alleged) and its effect. Such postponement orders operate on actual publication. Such orders direct postponement of the publication for a limited period.” Balancing of Rights of Media Vs. Right of Defendant 37.
Further it was held in Dr. Shahsi Tharoor Vs. Arnab Goswami & Anr.,
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CS (OS) 253/2017 that “41. This Court is of the opinion that it is the function and right of the media to gather and convey information to the public and to comment on the administration of justice, including cases before, during and after trial, without violating the presumption of innocence. In fact, presumption of innocence and a fair trial are at the hear t of criminal jurisprudence and in a way important facets of a democratic polity that is governed by rule of law. Journalists are free to investigate but they cannot pronounce anyone guilty and/or pre judge the issue and/or prejudice the trial. The grant of the fairest of the opportunity to the accused to prove his innocence is the object of every fair trial. Conducting a fair trial is beneficial both to the accused as well as to the society. A conviction resulting from unfair trial is contrary to the concept of justice. 75. Coordinate Benches of this Court in Naveen Jindal Vs. M/s. Zee Media Corporation Limited & Anr. (Supra) and Swatanter Kumar Vs. The Indian Express Ltd. & Ors., 207 (2014) DLT 221 have granted injunctions in defamation suits. 76. In fact, a Coordinate Bench of this Court in Naveen Jindal Vs. M/s. Zee Media Corporation Limited & Anr. (supra) has held that the power of the High Court to order restrain of publication in the media would clearly encompass the stage when the criminal case against the accused is at the preliminary enquiry or investigation stage. In the aforesaid case, injunction was granted as investigation was sought to be influenced inasmuch as the Investigating Officer was sought to be interrogated/interviewed on Television by a party to the lis. 77. Keeping in view the aforesaid judgments, this Court is CS No. 184/18
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of the opinion that the twopronged test of necessity and proportionally have to be satisfied before ordering postponement of publication, namely, necessity to prevent real and substantial risk to fairness of trial and salutary effect of such an injunction outweighs deleterious effect to the free expression. This Court would like to clarify that tests like necessity, proportionality and balance of convenience are not end points but points of departure. Moreover, the injunction order should only be passed if reasonable alternative methods or measures would not prevent the said risk.” 38.
In the case of Swatantra Kumar Vs Indian Express, it was observed “32. It is correct that freedom of expression in press and media is the part of Article 19 (1) of the Constitution of India where by all the citizens have a right to express their view. However, the said right of the expression is also not absolute but is subjected to the reasonable restrictions imposed by the Parliament or State in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence. The said position is clear from the plain reading of the Articles 19 (1) and (2) of the Constitution of India.”
39.
In case titled Naveen Jindal Vs. M/s. Zee Media Corporation Ltd.
& Anr, it was observed 23. The next issue would be as to under what facts and circumstances, the Court should exercise its jurisdiction to grant an injunction regarding publication of news items or broadcasting of programmes. The Constitution Bench in CS No. 184/18
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Sahara India Real Estte Corporation Ltd. And Ors. Vs. Securities and Exchange Board of India and Anr. (supra) held as follows: 42.....But, what happens when courts are required to balance important public interests placed side by side. For example, in cases where presumption of open justice has to be balanced with presumption of innocence, which as stated above, is now recognized as a human right. These presumptions existed at the time when the Constitution was framed [existing law under Article 19 (2)] and they continue till date not only as part of rule of law under Article 14 but also as an Article 21 right. The constitutional protection in Article 21 which protects the rights of the person for a fair trial is, in law, a valid restriction operating on the right to free speech under Article 19 (1) (a), by virtue of force of it being a constitutional provision. Given that the postponement orders curtail the freedom of expression of third parties, such orders have to be passed only in cases in which there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice which in the words of Justice Cardozo is “the end and purpose of all lawsd”. However, such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial (court proceedings), if reasonable alternative CS No. 184/18
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methods or measures such as change of venue for postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint. The order of postponement will only be appropriate in cases where the balancing test otherwise favours nonpublication for a limited period.”
40.
Coming to the facts of the present case and content of publication, it can
be said that the publication and telecast was prima facie defamatory, leads to and will lead to future obstruction of justice. Applying the above mentioned test to the instant case, it can be seen that there are some allegations against the plaintiff about his alleged involvement in the crime as is mention in FIR No. bearing no. RC 10(A)/ACIII/2017/New Delhi dated 19.09.2017 registered at PS CBI New Delhi. In the alleged articles on record, name of plaintiff is mentioned along with his photograph. Further transcript of relevant part of the alleged tape recorded conversation is also mentioned. As per the material available on record wherein primarily on the basis of tape recordings, verification of which is required to be tested in a Court of law, the defendants are excessively publicising the same which gives an impression as if the plaintiff is actually involved in the incident in order to create adverse public opinion. His name is prominently written in the articles and imputations are mentioned while the investigation is still pending. The CS No. 184/18
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continuous adverse publicity is destructive of reputation of the plaintiff as a retired judge and as senior counsel, and would result in loss of confidence in the institution itself. Prima facie I find that the publication connecting the plaintiff with such allegations creates a trial by media kind of situation by creating a sensation amongst the public and the same are required to be postponed. The constitutional guarantee of free speech does not confer a right to defame persons and harm their reputation by false and unsubstantiated allegations. Prima faice I find that in view of the publication already made, any such further publication would be destructive of the reputation of the plaintiff and would be an impediment in creating fair trial and justice to the plaintiff and the same needs to be restrained. 41.
Further plaintiff is one of the prime persons involved in the said FIR as he
is specifically named therein. Any reporting/telecast/news pertaining to the contents of this FIR, crime mentioned in the FIR, investigation pertaining to this FIR, discussion of any evidence pertaining to this FIR is going to affect the plaintiff and his reputation directly or indirectly. 42.
In view of the above mentioned discussion, plaintiff has been able to make
out a strong prima facie case on the basis of the material enclosed on record wherein articles have been written against the plaintiff thereby creating an impression that plaintiff in all probability is involved in such incident. Balance of inconvenience is also in favour of plaintiff as degree of prejudice to the plaintiff is far more excessive than that of the defendants. The irreparable loss shall ensue to the plaintiff at this stage and not to the defendants if such publication, telecast and TV news of such nature on similar lines, if not postponed. CS No. 184/18
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43.
Hence by way of this temporary injunction order, defendants no. 1 to 4 and
through defendant no.6 Union of India and its various Ministries, Departments, councils, regulatory authorities set up by Union of India, all the media houses whether print or electronic or internet, and their associates are hereby restrained from publishing, republishing, repeating any article or rightups, or telecasting or retelecasting any programmes or debates or interviews or opinions or reports or off shoot reports or publicizing in any other manner, directly or indirectly, pertaining to FIR bearing no. RC 10(A)/ACIII/2017/New Delhi dated 19.09.2017 registered at PS CBI New Delhi, till the time police completes its investigation and files appropriate report before the Court or till further orders, which ever is earlier. Further any publication/telecast/any other form of reporting still existing on any of the websites or in any other electronic form is directed to be withdrawn. The present order operates with immediate effect. 44.
However, media houses are free to report about any Court proceedings
pertaining to this FIR or about the final conclusion of the police report as and when filed before appropriate Court covered under the ambit of fair reporting on the basis of true, correct and verified information. Application accordingly disposed off.
(Twinkle Wadhwa) ADJ03/PHC/NEW DELHI. 21.04.2018
CS No. 184/18
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CS no.184/18 Ishrat Masroor Qudussi VS Foundation for Independent Journalism 21.04.2018 Present:
Ld. Counsel Sh. Tarun Singh and Sh. Mohis Tyagi for plaintiff. Ld. Counsel Sh. Akshay Chandna for defendant no.4. Ld. Counsel Sh. Ramesh Chandra for defendant no.6. Arguments were already heard on application filed u/Sec 80
(2) CPC by plaintiff. No reply to the application is filed either by defendant no.5 or defendant no.6 despite being given opportunity. Arguments heard. In view of the grounds taken in the application that it was an urgent matter, application u/O 80 (2) CPC is allowed. Vide a separate order, application u/O 39 rule 1 & 2 CPC is allowed and accordingly disposed off. Now to come up for arguments on all the pending applications on 10.07.2018.
(Twinkle Wadhwa) ADJ-03/PHC/NEW DELHI. 21.04.2018
CS No. 184/18
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