Kerala High Court Dismisses Reporter TV's Plea Against Direction To Produce Allegedly Contemptuous News Items Broadcasted On 2017 Actor Assault Case

The Kerala High Court on Tuesday dismissed a petition filed on behalf of Reporter TV challenging the order of a Sessions Court directing the news channel to produce the news items, including discussions and interviews, broadcasted by it from December 25, 2021 to October 21, 2022, in connection with the 2017 Actor Assault case. 

The direction was issued in a petition seeking reference to the High Court for initiating contempt proceedings against the petitioners for allegedly broadcasting details of the trial. The 2017 case pertains to the alleged abduction and sexual assault of an actor in a moving car in the year 2017.

Justice Bechu Kurian Thomas observed, 

"The purpose of the statute directing trial of certain categories of cases to be held in camera has a salutary objective. No person, including the press, can report what transpires inside the court or discuss or publish the statement of witnesses or even disclose the evidence in cases that are being tried in camera. When allegations are raised about publishing details of a trial of an in camera proceedings, it is essential, in public interest, as well for the court, to ascertain details of the matter published or telecasted". 

The Court thus went on to observe that, 

"The impugned order merely directs the petitioners to produce matters that are already in the public domain and hence the order cannot cause any prejudice also." 

Factual Background

On details of the case, including scandalous and malicious statements, allegedly being published in the media, the Sessions Court had issued an order dated March 19, 2020, on the petition filed by the second respondent Malayalam film actor Dileep, who is also the 8th accused in the crime.  It was directed that nobody ought to print or publish the proceedings in connection with the trial, except the matters permitted in Nipun Saxena and Anr v. Union of India & Ors. (2019). 

Subsequently, actor Dileep filed another petition seeking a reference to the High Court under Section 15(2) of the Act for initiating contempt proceedings against the petitioners, alleging that from December 25, 2021, Reporter TV had indulged in broadcasting false, fabricated and misleading matters relating to the trial with a view to cause prejudice against the court "in an orchestrated attempt to derail the trial of the case". The content of the programme telecast on December 25, 2021 was also produced to show the same.

It was contended that the broadcast was made with the knowledge that the Sessions case was directed to be conducted in camera. It was further alleged that a parallel trial was being conducted by the petitioners through the TV channel. This was denied by the petitioners who averred that the restriction imposed was only with respect to reporting transactions that happen inside the court and form part of the enquiry and trial only and that when persons come forward and disclose matters, the same could not be attributed as contemptuous.

While the above petition was pending consideration, another petition was filed by the actor for accepting a pen-drive as evidence of various channel discussions and interviews conducted on several days by the petitioners, which was also objected to by the latter on the ground that the same contained only portions of interviews and short clippings of conversations that could not convey a complete picture of the context in which those conversations were broadcasted.

It is in this context that the Sessions Judge issued the impugned order directing the petitioners to produce the interviews and channel discussions that was broadcasted by them between December 25, 2021 till October 21, 2022. The petitioners have challenged the same in the present petition. 

Arguments Raised 

It was contended by the counsels for the petitioners that in case of pending criminal cases, the Court is precluded from raising the same issue as contempt of Court as per the proviso to Section 10 of the Act. It was argued that the Sessions Court was compelling the petitioners to provide pieces of evidence which could be self-incriminatory as per Article 20(3). The contention regarding the 2nd respondent having no locus standi as he was a third party against whom no right could be sought to be enforced was also raised. Additionally, it was argued that the 2nd respondent had only sought for matters telecasted from December 25, 2021 till April 5, 2022, but the Sessions Court had directed the production of materials broadcasted till October 21, 2022, which was beyond what had been sought for. 

On the other hand, it was argued by the counsels for the respondents that the impugned order was only a step in the enquiry, which could not be challenged under Article 227 of the Constitution. It was contended that the proviso to Section 10 would not apply, as portrayed by various Apex Court decisions in this regard, and that the registration of an FIR would not bar the initiation of contempt of court proceedings. Additionally, it was averred that Article 20(3) would not apply in the course of criminal proceedings, particularly while gathering information for producing it before the court and that the direction to produce the materials arose only because petitioners themselves had objected to the pen-drive produced. It was also submitted that the petitioners were themselves in possession of the original contents, which were already available in the public media. 

Findings of the Court 

i.  Whether further contempt action can be initiated once FIRs have already been registered 

The Court noted that five FIRs had already been registered against the petitioners alleging that they had, without the permission of the Sessions Court, conducted discussions and broadcasted the same through the Reporter TV channel, social media, YouTube and internet with the intent to reveal the details of the trial. 

The Court thus perused Section 10 of the Contempt of Courts Act which stipulates the power of the High Court to punish for contempt of subordinate courts. The proviso states that, "no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code". 

The Court in this context ascertained that the contention of the petitioners that once FIRs had been registered, a further contempt action could not be initiated could not be accepted since it would defeat the very purpose of the statute. 

"The proviso to S.10 of the Act can apply only in cases where the acts alleged as contempt are punishable as contempt itself under the specific provisions of the IPC. Merely because the acts alleged as contempt, also satisfy the description of other offences under the penal code, that by itself would not exclude the applicability of the contempt jurisdiction," it was observed. The Court also referred to the decisions in State of M.P. v. Revashankar (1959) and Daroga Singh & Ors. v. B.K.Pandey (2004) in this regard. 

The Court thus observed that although the petitioners were being proceeded against under Section 228A of the IPC, which penalizes printing or publishing the name or anything which reveals the identity of the victim in a trial relating to rape without permission of the court, that by itself would not attract Section 10 of the Act. 

"Thus, petitioners cannot take the benefit of the proviso to section 10 of the Act for excluding them from being proceeded against in contempt. Viewed in the above perspective, the main contention urged by the petitioners that they are protected by the proviso to section 10 of the Act is not at all tenable and has no merit in it," it was observed. 

ii. Whether producing the evidence would violate the right against self-incrimination of the petitioners under Article 20(3)

The Court observed that under Article 20(3) of the Constitution, the following ingredients had to be satisfied, namely, a. that the person must be accused of an offence; b. that he must be compelled to be a witness; and c. that the compulsion must be to be a witness against himself.

The Court thus observed that when allegations are raised about publishing details of a trial of an in camera proceedings, it would be essential for the Court to ascertain details of the matter published or telecast. The Court noted that in such a context, the petitioners who are not an accused in the case, could not claim the privilege of the doctrine against self-incrimination. 

"Further, in the instant case, all that has been directed to be produced are materials that are already in public domain and a part of which are already produced in court in a pen-drive. Since the contents of the pen-drive were objected to by the petitioners stating that they were only piecemeal production, the Court directed the production of the materials for comparison to arrive at a conclusion regarding the veracity of the materials produced by the second respondent. By no stretch of imagination can the direction be termed as compelling the petitioners to be a witness against themselves," it was added. 

iii. Regarding Locus Standi of the second respondent Actor Dileep 

The Court did not find any merit in the argument of locus standi raised by the petitioners either. It was observed that the actor only brought to the attention of the Court certain instances for informing it that contempt of Court had taken place. 

"Even if the second respondent is an accused in the crime, that does not restrain him from bringing to the notice of the court instances, which can amount to contempt. Even if the process of enquiry is triggered by an accused, ultimately, it is for the court to arrive at a conclusion as to whether any contempt has occurred. Therefore the said contention also is without any merit," the Court observed in this light. 

The Court also observed that the court below had only sought the production of materials allegedly broadcasted during the said period to ascertain whether there had been any contempt of court or not. It was observed that the period was within the discretion of the Court, and it could not be restrained from seeking production of documents relating to the broadcast of the alleged contemptuous matter till October 21, 2022. 

Resultantly, the petition was dismissed on these grounds. 

The petitioners were represented by Advocates Kaleeswaram Raj, C.P. Udayabhanu, Boban Palat, Navaneeth N. Nath, P.U. Pratheesh Kumar, P.R. Ajay, Rassal Janardhanan A., and Abhishek M. Kunnathu. Public Prosecutor Vipin Narayan and Advocates Philip T. Varghese, Achu Subha Abraham, V.T. Litha, K.R. Monisha, Nitya R., and Sujesh Menon V.B. appeared on behalf of the respondents. 

Case Title: Indo-Asian News Channel Pvt. Ltd. & Anr. v. State of Kerala & Ors. 

Citation: 2023 LiveLaw (Ker) 207 

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