1. A.S.

Mohammed Rafi v State of Tamil Nadu

CASE CITATION: (2011) 1 SCC 688

JUDGES: Markandey Katju and Gyan Sudha Misra

FACTS: A resolution was passed by the Coimbatore Bar Association exhorting its members not
to defend the policemen who were the accused in a particular criminal case. The resolution was
challenged before the Madras High Court. The Madras High Court made some observations
about the Coimbatore Bar Association in its judgment. A civil appeal was filed before the
Supreme Court seeking to quash the observations made against it. While granting the plea of the
Coimbatore Bar Association in Civil Appeal No. 10304-10308 of 2010 that the observations
made against it in the impugned judgment of the High Court of the Madras should be quashed,
the Supreme Court also considered the validity and propriety of the resolution passes by the Bar
Association.

ISSUES:
1. Whether professional standards and ethics require advocates to defend all accused persons.
2. Whether the resolution passed by the Bar Association not to defend accused policemen in
criminal cases violates the right to be defended under Article 22(1) of the Constitution.

RULES: 1. Article 22(1) in The Constitution of India 1949

2. Article 142 in The Constitution of India 1949

ANALYSIS: The legality of the Bar Association resolution that none of its members will appear
for an accused came up for consideration in this case. It has been noticed that several Bar
Associations have passed resolutions in the past as follows-
 That they will not defend a particular person or persons in a particular case.
 When there are clashes between the policemen and lawyers, that no one will defend the
policeman in the criminal case.
 That they will not defend a person who is alleged to be a terrorist or a person accused of a
brutal or heinous crime or involved in a rape case.

There is ample evidence to show that Indian Lawyers have never shirked their responsibility on
the ground that they would become either unpopular or it is personally dangerous for him to
defend such persons. It was noticed that in spite of such high traditions established by Bar,
several instances have occurred about the refusal to defend certain accused persons like-
a) The revolutionaries in Bengal during British rule were defended by lawyers.
b) Indian communists were defended in the Meerut conspiracy case.
c) Razakars of Hyderabad were defended
d) Sheikh Abdullah and his co-accused were defended.
e) Alleged assasins of Mahatma Gandhi and Indira Gandhi were defended.
f) Dr. Binayak Sen has been defended, and
g) Bhulabhai Desai defended the accused in INA trials in Red Fort at Delhi (1945 to 1946).
The Constitution of India and Rules framed by Bar Council of India imposed a duty on the
lawyers to defend the causes and not to refuse to accept briefs. The Constitutional provisions
guarantees that no person arrested shall be detained in custody without being informed, as soon
as may be the ground of his arrest and shall not be denied the right to consult and be defended by
a legal practitioner of his choice. The rules framed by the Bar Council of India provides that an
advocate is bound to accept any brief in Courts or tribunals before any other authorities in or
before which he proposes to practice at a fee consistent with his standing at the Bar and the
nature of the case.

CONCLUSION: Thus, the Court held that professional ethics requires that a lawyer cannot
refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged.
Hence, the action of any Bar Association in passing such a resolution that none of its members
will appear for a particular accused, whether on the ground that he is a policeman or on the
ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the
Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which
has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a
disgrace to the legal community. The Court declared that all such resolutions of Bar Associations
in India are null and void and the right minded lawyers should ignore and defy such resolutions
if they want democracy and rule of law to be upheld in this country. Thus, a resolution of the
Bar, that no member of the Bar will appear for a particular accused, is against all norms of the
Constitution, the statute and professional ethics. It is also against great traditions of the Bar
which took cases where persons were accused of treason and other serious offences.

Democracy and the rule of law can be maintained only by providing access to justice through
legal profession and no person shall be denied of the right to be defended by a lawyer. The
Supreme Court’s decision upholding the right of a person to be defended by a lawyer and
corresponding duty of the lawyer to defend strengthen, not only the cause of legal profession but
also strengthens the rule of law and democracy in the Country.
 2. RK Anand
Facts:
The present appeal is a fall out from a criminal trial arising from a hit and run accident in which a car
travelling at reckless speed crashed through a police check post and crushed to death six people, including
three policemen. Facing the trial, as the main accused, was Sanjeev Nanda coming from a very wealthy
business family. It was in this background that a well known English language news channel called New
Delhi Television (NDTV) telecast a programme on May 30, 2007 in which one Sunil Kulkarni was shown
meeting with IU Khan, the Special Public Prosecutor and RK Anand, the Senior Defence Counsel (and
two others) and negotiating for his sell out in favour of the defence for a very high price. Shocked by the
programme the Delhi High Court suo moto initiated a proceeding (Writ Petition (Criminal) No.796 of
2007). It called for from the news channel all the materials on which the telecast was based and after
examining those materials issued show cause notices to RK Anand, IU Khan and Bhagwan Sharma, an
associate advocate with RK Anand why they should not be convicted and punished for committing
criminal contempt of court as defined under section 2 (c) of the Contempt of Courts Act, 1971. The High
Court held that RK Anand’s and IU Khan’s acts squarely fell within the definition of contempt under
clauses (ii) & (iii) of section 2(c) of the Contempt of Courts Act. It, accordingly, held them guilty of
committing contempt of Court vide judgment and order dated August 21, 2008 and in exercise of power
under Article 215 of the Constitution of India prohibited them, by way of punishment, from appearing in
the Delhi High Court and the courts subordinate to it for a period of four months from the date of the
judgment. It also held that RK Anand and IU Khan had forfeited their right to be designated as Senior
Advocates and recommended to the Full Court to divest them of the honour. In addition to this the High
Court also sentenced them to fine of rupees two thousand each. Thus these two appeals by RK Anand and
IU Khan respectively are filed under section 19 (1) of the Contempt of Courts Act against the judgment
and order passed by the Delhi High Court.

A. ISSUES
1. Whether the conviction of the two appellants for committing criminal contempt of court is justified
and sustainable?
2. Whether the procedure adopted by the High Court in the contempt proceedings was fair and
reasonable, causing no prejudice to the two appellants?
3. Whether it was open to the High Court to prohibit the appellants from appearing before the High
Court and the courts sub-ordinate to it for a specified period as one of the punishments for criminal
contempt of court?
4. Whether the role of NDTV was justified in carrying out sting operations and telecasting the
programme based on the sting materials in regard to a criminal trial that was going on before the
court.

B. RULES
Contempt of Courts Act, 1971
 Section 19(1) - An appeal shall lie as of right from any order or decision of High Court in the exercise
of its jurisdiction to punish for contempt.
 Section 2(c) - “criminal contempt” means the publication (whether by words, spoken or written, or by
signs, or by visible representation, or otherwise) of any matter or the doing of any other act
whatsoever which—
 Section 2(c)(ii) - prejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding; or
 Section 2 (c)(iii) - interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner;

C. ANALYSIS
On the Issue of Contempt of Court
The Standard of Proof in Contempt of Court Proceedings is one of the striking issues in the in the present
case. The manner in which the Court decided whether the charge of criminal contempt had been
established or not, the standard applied was not different from the precedent case law. The approach of
the Court was in consonance with the law laid down in a range of cases from In Re Vinay Mishra 1 to
Daroga Singh and Ors. v. B.K. Pandey2. The Court spelt it out clearly that there is a difference between
the manner of proof in a contempt proceeding and that in a criminal trial. While the standard of proof in
both was said to be the same, namely, that of proving a fact “beyond reasonable doubt”, the manner of
proof in both was contended to be different. The settled position of law was noted to be that proceeding of
contempt of court was sui generis. The provisions of the Criminal Procedure Code and the Indian

1
Re Vinay Mishra MANU/SC/0471/1995 : 1995CriLJ3994
2
Daroga Singh and Ors. v. B.K. Pandey MANU/SC/0336/2004 : 2004CriLJ2084
Evidence Act were not applicable in such a proceeding. Instead, the principles of natural justice was said
to apply. The absence of a fixed procedure to be followed in these type of trials has led to the following
shortcomings in the manner in which the contempt of court proceedings are conducted. In this regard, the
lacunae which can be identified from a reading of R.K. Anand v. Registrar, Delhi High Court are:

Firstly, the opportunity to cross-examine the witnesses is very rarely given to the person charged with
criminal contempt. In the case of Daroga Singh and Ors., it was noted that one of the reasons for denying
the opportunity to cross-examine is the need to decide the case expeditiously. R.K. Anand’s request to
cross-examine Poonam Agarwal was turned down by the High Court. But the point to be noted is to what
extent should interests of expediency be given priority to interests of fairness and uncovering the truth.
Further, the reasoning behind denial of the opportunity to cross examine was that what had transpired
between the parties were already there on the micro-chips and the CDs. It was stated that no statement by
Poonam Agarwal would change this state of affairs. But the point to be noted is that it was the reliability
of these CDs that was being questioned by RK Anand in the first place. Secondly, IU Khan was let off
the hook on the ground that the tape, containing his recording, submitted to the Court was incomplete and
hence its veracity was not adequately established. However, it doesn’t seem that the veracity of RK
Anand’s sting tape was proved either. Attempts to do so were struck down by the Court. Thirdly, the
judgment states that RK Anand did not deny the recording, which was broadcasted by the news channel,
in the first instance. This fact seems to have weighed against him, especially since, as is mentioned in the
judgment, that IU Khan had, right at the beginning, claimed that the recording had been doctored.
However, the fact of the matter is that the judges should not have referred to statements made by the
persons, in interviews to television channels, in the first place. Such observations do not have any place in
the judgment.
These faux pas which have been pointed out would not have taken place at all if the Criminal Procedure
Code and the Indian Evidence Act procedural standards had been followed.

Professional misconduct vis-à-vis Criminal Contempt of Court

Khan’s behaviour was held to be professional misconduct whereas Anand was charged with criminal
contempt of court. While Anand was given a period of eight weeks from the date of service of notice for
filing his show-cause as to why punishment awarded to him should not be enhanced, Khan’s case was
directed back to the Delhi High Court for consideration and he had no prior notice as to the action of the
SC. In the case In re Vinay Mishra3, the SC held that under Article 142 of the Constitution the jurisdiction
and powers of the Supreme Court which are supplementary in nature and are provided to do complete

3
Supra
justice in any manner, are independent of the jurisdiction and powers of the Supreme Court under Article
129 which cannot be trammeled in any manner by any statutory provision including any provisions of the
Advocates Act, 1961 or the Contempt of Courts Act, 1971. The implication of this case was that the SC
was vesting in itself the power to try cases of professional misconduct by advocates which was actually
vested in the Bar Council as per s.35 of the Advocates Act, 1961. Fortunately, this decision was overruled
in Supreme Court Bar Association v. Union of India where it was held that the SC must not exceed its
jurisdiction and it must act with restraint while exercising its powers under A.142. Thus, it was
unacceptable for the Court to "take over" the role of the statutory bodies or other organs of the State and
"perform" their functions. While the Bar Council is considering cases relating to professional misconduct,
it follows a fixed procedure where a Disciplinary Committee is set up, the advocate is allowed to defend
himself and most importantly an appeal to the decision of the Committee lies with the SC. This procedure
as contrasted with the contempt proceedings seems much fairer as the advocate is allowed one appeal. It
is surprising that Criminal Contempt of Court which is a graver offence does not have either a fixed
procedure or a process of appeal. With reference to the case, if IU Khan is dissatisfied with the decision
of the Del HC, then it is highly unlikely that his appeal will be successful since the Supreme Court has
already pre-judged the matter. Wouldn’t this amount to unfairness?

Role of the Media

Several issues emerge from the RK Anand which need to be scrutinized. One of the questions posed by
Singhvi J. to the lawyers concerned was whether it was appropriate for the media to air the tapes during
court proceedings of the BMW case? Does it adversely affect or prejudice the parties involved? At a
broader level does this vitiate fair trial? Several issues emerge from the RK Anand which need to be
scrutinized. It is important to conduct such scrutiny in light of recent incidents and practical
considerations. The question posed by J. Singhvi to the lawyers concerned was whether it was appropriate
for the media to air the tapes during court proceedings of the BMW case? Does it adversely affect or
prejudice the parties involved? At a broader level does this vitiate fair trial? The present judgment
explains that trial by media takes place where the impact of television or newspaper coverage on a
person’s reputation creates a widespread perception of guilt regardless of any verdict in a court of law. In
such cases the media has tried and found the person guilty and thus adjudicated upon the very issue
pending before the court and this makes a fair trial virtually impossible regardless of the its result. In this
case, an important issue which came up before the Court was whether NDTV was guilty of criminal
contempt under the Contempt of Courts Act? The Court held that this case fell squarely under the defence
under the new S. 13(b) of the Act which provides that justification by truth and public interest put
together form a defence. The Court also accepted Shri Salve’s compelling argument that NDTV was in
fact trying to prevent the advocates’ attempt to interfere in the course of justice. It exposed erring lawyers.
Further, the stings had nothing to do with the accused, Sanjeev Nanda. It did not conjecture about the
culpability of the accused which is what the Court thought the standard is. However, it is interesting to
note at this point that there were television interventions even in December 2007 when the Anand
contempt case was before the Delhi High Court.
D. CONCLUSION
The present BMW's Case precisely revolves around winning over and influencing the star witness, Sunil
Kulkarni. The two appellants, defence counsel as well as special public prosecutor, were caught through
live conversation in a sting operation conducted by Poonam Agarwal, a journalist of NDTV. Entire
recordings in both the stings were accepted. R.K. Anand and IU Khan both were prohibited by way of
punishment, from appearing in Delhi High Court and all the courts subordinate to if, for a period of four
months from the date of judgment and a fine of Rs. 2000 too was imposed. In the event of appeals against
the above judgment of the Delhi Court, the appeal by RK Anand was dismissed by the Supreme Court,
subject to the notice of enhancement of punishment. He was allowed eight weeks time from the date of
service of notice for filing his show-cause. In case of I.U. Khan, he was supposed to know about the
ongoing game plan that was afoot for subversion of the Trial. His omission to inform about the same to
prosecution and the court, as per the Delhi High Court was likely to have a very serious impact on the
trial and thus formed a case of professional misconduct. But, as per the Supreme Court, on the basis of
materials on record the charges of criminal contempt cannot be held to be satisfactorily established
against him. The appeal filed by I.U. Khan was therefore allowed and his conviction for criminal
contempt was set aside. The period of four month's prohibition from appearing in Delhi High Court and
the courts sub-ordinate to it was already over by then, however, the punishment of fine given to him by
the High Court was set aside. The Supreme Court further held that the Full Court of the Delhi High Court
may still consider whether or not to continue the honour of Senior Advocate conferred on him in light of
the findings recorded in this judgment. Also in order to avoid any such controversies in future all the High
Courts that have so far not framed rules under Section 34 of the Advocates Act are directed to frame the
rules without any further delay.

While appreciating the TV channel’s exposure of a renowned criminal lawyer’s crime of bribing a
witness, the apex court declined to regulate media in the interest of an autonomous judiciary and a free
media. I would like to conclude by quoting J. Singhvi, "What appeared in the telecast was outrageous
and tended to confirm the cynical but widely held belief that in this country the rich and the mighty
enjoyed some kind of corrupt and extra-constitutional immunity that put them beyond the reach of the
criminal justice system." The Apex court termed this sting as opening of another chapter in trial. NDTV
has sufficiently documented the entire episode, which is essential to nail criminals. Their half-an-hour
program on delays in the trial inspired witness Kulkarni to work with TV channel to expose prosecution-
defence nexus.