While clearly, cogently, categorically, convincingly and courageously drawing the red lines for the media, the Kerala High Court in a learned, laudable, landmark and latest judgment titled TN Suraj vs State of Kerala & Ors in W.P. (Crl.) No. 346 of 2022 and cited in 2022 LiveLaw (Ker) 186 and delivered as recently as on April 19, 2022 has minced just no words to say that media can’t make suggestions of guilt or innocence of a person or credibility of witnesses. It also minced no words to point out that the media trial results in denigration of the justice delivery system. Media must refrain from doing so!
While temporarily very rightly gagging the Reporter TV after deliberation from indulging in any kind of publishing/broadcasting/ telecasting any item concerning or relating to actor Dileep’s brother-in-law named Suraj on the murder conspiracy case or the 2017 actor sexual assault case, the Kerala High Court was at pains to comment on the detrimental effect that media trial has on the legal system as a whole. The single Judge Bench of Justice Mohammed Nias CP of Kerala High Court remarked that media trials influence public opinion and that they could often lead to loss of faith in the justice delivery system.
To start with, this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of the Kerala High Court comprising of Justice Mohammed Nias CP sets the ball rolling by first and foremost putting forth in para 3 that, “The petitioner is arrayed as the third accused in Crime No. of 2022 of Crime Branch Police Station pursuant to Ext. P1 FIR dated 9-1-2022 alleging commission of offences under Sections 116, 118, 120 B and 506 read with Section 34 of Indian Penal Code. A report was filed on 4-1-2022 by the Investigating Officer changing S.120 B to Section 120 B (1) for adding offence under Section 302 of IPC.”
It must be noted that the Bench then states in para 4 that, “The 5th respondent herein, the de facto complainant, Mr. Baiju Paulose, Dy.S.P., Crime Branch also happens to be one of the Investigating Officers in Crime No. 297/2017 of Nedumbassery Police Station registered on 18-2-20217. In the said case, initially there were only 7 accused but pursuant to the final report dated 22-11-2017, Mr.Gopalakrishnan @ Dileep, who is the brother-in-law of the petitioner and a film actor was also arrayed as the 8th accused.”
To put things in perspective, the Bench then specifies in para 5 stating that, “The allegation in Ext. P1 FIR is due to the enmity of the accused in Crime No. 297/2017 of Nedumbassery Police Station, arising from the arrest and implication of Sri. Dileep in the said Crime, the accused in Ext. P1 FIR conspired, instigated and abetted to do away with the fifth respondent and other officers in the investigation team of Crime No. 297/2017. It was alleged that this conspiracy was committed on 15-2-2017 and it was seen and heard by one Mr. Balachandrakumar. It is further submitted that petitioner along with his brothers-in-law Mr. Dileep and Anoop had filed applications seeking anticipatory bail from this Court and by a common order dated 29-01-2022 in Bail Application Nos. 248/2022, 288/2022 and 300/2022, anticipatory bail was granted to the petitioners vide Ext. P4 order holding prima facie that the offences alleged were not attracted. Reference was also made to certain comments made in the media about the manner in which this Court considered the bail applications. The media was reminded that its right to freedom of speech and expression cannot be a license to abuse the justice delivery system by persons who have little or no knowledge of the fundamental legal principles. The learned Senior counsel submits that notwithstanding the said observations in Ext. P4, the 6th respondent continued interfering and reporting about the investigation worsening the situation. It is further alleged that respondents 3 to 5 are leaking out materials allegedly collected during investigation and including those from the in camera trial in S.C. 118/2018 and the same is forming the basis for the false and fabricated stories in the media. Though the judicial First Class Court, Angamally had passed an order dated 17-1-2018, Ext. P5 including strictures against the 5th respondent herein and had pointed out that the publications had its impact on the administration of justice, such publications in the media continued. It is further alleged that the trial in S.C. 118/2018 conducted in camera and inspite of the prohibition under Section 327 (3) of the Cr.P.C., publications in violation thereof are being made and Sessions Court had passed Ext. P6 order specifically prohibits publishing of proceedings except those permitted under the judgment of the Supreme Court in Nipun Saxena and Another v. Union of India [(2019) 2 SCC 703].”
While elaborating in detail, the Bench then discloses in para 6 that, “The 6th respondent using his online news portal named Reporter and their Television Channel named Reporter TV, has been telecasting items regarding the cases in question from 25-12-2021 onwards fabricating more and more allegations against Mr. Dileep and the petitioner about matters which are sub judice in the ongoing trial and the pending investigation. It is alleged that Mr. M.V. Nikesh Kumar, is the Chief Executive Officer of the 6th respondent and that he was cited as a prosecution witness in the pending trial. It is further alleged that inspite of Mr. Dileep filing OP (Crl) No. 23/2022 before this Court seeking implementation of Ext. P6 order in which Ext. P7 order was passed by this Court, no effective investigation is being carried out though cases have been registered against the CEO of the 6th respondent. Alleging that the 6th respondent is resorting to sensationalism/publication/broadcast of fabricated allegations against the accused persons and their associates which is evident from Exts. P8 to P11 and Ext. P12 reports by the other medias. Exts. P8, P8 (a), P8(b) and P8(c) suggested that one Mr. Sarath, a friend of the petitioner’s family is the 6th accused in the case and several news items implicating the said person were published. As a matter of fact, the application filed by Sri. Sarath for anticipatory bail was closed as the prosecution conceded that there was no material for implicating him. The 6th respondent had notwithstanding the above factual position made several nefarious attacks on Sarath. Exts. P9, P9(a) to (c) are also on same lines. The petitioner further states that from the last week of February 2022 onwards, the media reports alleged destruction of data in the mobile phones of Sri. Dileep and it was one Mr. Saisankar who allegedly did this. Several reports have been published spreading stories about the destruction of data by Mr. Dileep when the prosecution has not moved this Court which granted bail pointing out the same if it were actually true. Similar reports about the surrender of Mr. Saishankar before the 3rd respondent who in turn made allegations about the lawyers appearing for Sri. Dileep and the petitioner herein as could be seen from Exts. P10 (a), (b), (c) and P10(d) respectively. It was also reported that the mobile phone of the petitioner herein was seized and that portions of audio recordings from it were leaked out to the media. Audio recording allegedly of the conversations between the petitioner and the above mentioned Sarath and between the petitioner and his family members etc. were leaked out and the copies of the reports published in the Reporter Online Portal regarding the audio clippings are marked as Exts. P11(a) to (e). Other medias also published the similar items in their print media on 9-4-2022 and 10-4-2022 and the same is marked as Ext. P12(a) and (b).”
Notably, the Bench then points out in para 7 that, “Apart from pleading about the reports as aforesaid in paragraphs 10 to 16 of the writ petition, it is stated that Crl.M.C. 1106/2022 filed by Mr. Dileep before this Court to quash the proceedings in Crime No. 6 of 2022 and the hearing of which concluded on 31-3-2022 and the judgment reserved. It is at that stage when the judgment is awaited, respondents 3 to 5 are indulging in the act of leaking out the alleged materials collected during investigation.”
As it turned out, the Bench then concedes in para 14 that, “Several of the constitutionally guaranteed fundamental rights comes into play while considering a prayer for interim relief of the nature sought. The right of the public to know the details of the criminal case through the media, the media’s right to freedom of speech and expression, the right of the victim to bring out the truth through a fair trial, presumption of innocence which the accused or the suspect has until proved guilty, the right to reputation, privacy which are facets of Article 21 of the Constitution of India available to the parties and above all the indefeasible right for a due administration of justice in accordance with the law.”
Most significantly, the Bench then minces absolutely no words to hold in para 15 that, “The media interest or media debate, are all permitted in a democracy government by rule of law subject to one inviolable exception namely that the media cannot during the course of trial or investigation suggest/publish/telecast that A or B is guilty or that C or D is untrustworthy or an honest witness. This is plainly impermissible as the said suggestions of guilt of innocence or credit worthiness of witness etc. are beyond the permissible rights of the media. Media cannot usurp the jurisdiction of the courts which alone has the constitutional authority to decide the guilt/innocence of a person or decide on the content, quality or the width of any right available to any citizen/accused/suspect. The rule of law, a basic feature of our Constitution grants every accused a right to ensure that he is tried in accordance with the procedure laid down by the criminal laws on the basis of the evidence let in the trial and without the court trying the case being influenced by a parallel trial by media or by commits and discussions by the media in regard to matters which are sub judice.”
Equally significant is what is then stated in para 16 that, “Half truths and misinformation cannot be the basis of publications or telecast. The media cannot be given the right to speculate on the outcome of the on going investigations or the court proceedings or criminal trials. Publication of leaks from the investigation agencies and to level allegations against individuals based on such leaks are not protected by the freedom of press under Article 19 (a) of the Constitution and it cannot be a defense that what was telecast was the allegation based on the prima facie findings of an investigating agency or worse on the basis of suspicions of Investigating agency. As far as criminal trial is concerned, any reporting beyond the factual statement of what has transpired in a court room can be curbed in a given case. Though the media performs the vital public function of being the communicator and the link between the courts of law and the people, its rights are also regulated and the fundamental right of speech and expression cannot be allowed to trample upon the rights available to the other citizens/accused/suspect.”
No less significant is what is then stated so very rightly in para 17 that, “Reports/telecast having the effect of prejudicing mankind against the parties and the court before the case is heard clearly interferes with the course of justice. A larger negative impact to a trial by media, a more subtle one which often goes unnoticed also needs a mention. In a trial by media which apart from adversely affecting the rights of an accused for a fair trial has immense power to influence public opinion. A perception is created for or against the accused in the mind of the laymen. So much so, that when a Judge passes a verdict which may be totally against the layman’s perception, it causes him to distrust the integrity of the very legal system. The time tested system of arriving at the conclusion of guilt on the basis of legal evidence need not always be a concept which is familiar to a person untrained in law. Such persons are more comfortable with the version that the media has given him. This loss of faith in justice delivery system is aggravated when the judge, not the judgment itself is subjected to media criticism. In such cases, trial by media results in denigration of the justice delivery system which without doubt, is the very foundation of the rule of law in any democratic set up.”
Be it noted, the Bench then states in para 18 that, “As stated above, there are specific allegations made against respondents 3 to 5 that reports of the investigation has been leaked out to the 6th respondent and to the other media who published the same.”
It deserves mentioning that the Bench then envisages in para 19 that, “The Hon’ble Supreme Court has commented on such leaks in the decision reported in Rajendran Chingaravelu v. R.K. Mishra, Additional Commissioner of Income Tax and Others [(2010) 1 SCC 457] and the same is profitably extracted hereunder:
13. But the appellant’s grievance in regard to media being informed about the incident even before completion of investigation, is justified. There is a growing tendency among investigating officers (either police or other departments) to inform the media, even before the completion of investigation, that they have caught a criminal or an offender. Such crude attempts to claim credit for imaginary investigational breakthroughs should be curbed. Even where a suspect surrenders or a person required for questioning voluntarily appears, it is not uncommon for the Investigating Officers to represent to the media that the person was arrested with much effort after considerable investigation or a chase. Similarly, when someone voluntarily declares the money he is carrying, media is informed that huge cash which was not declared was discovered by their vigilant investigations and thorough checking. Premature disclosures or ‘leakage’ to the media in a pending investigation will not only jeopardise and impede further investigation, but many a time, allow the real culprit to escape from law. Be that as it may.”
While citing yet another relevant case law, the Bench then enunciates in para 20 that, “As pointed out in Murukeshan v. State of Kerala and Others [2011 (1) KHC 97], once a case involving the commission of a cognizable offence has been registered and the FIR forwarded to the Magistrate, the matter is subjudice and no police officer has the right to leak out any information regarding the outcome of the investigation until the final report is filed before this Court. The formation of opinion as to whether or not there is a case to place the accused for trial is that of the police officer making the investigation and that final step in the investigation is to be taken by the police and by no other authority.”
Most forthrightly, the Bench then goes on to hold in para 21 that, “Even the accused who is arrested during investigation and produced before a Magistrate under Section 167 (1) Cr.P.C. Is entitled only to get a copy of the remand report as it is on its basis his custody is sought. The Code only directs the investigating Officer to transmit to the Magistrate a copy of the entries in the case diary and when even the accused is not entitled to get the copy of any of the documents except remand report at that stage, it is difficult to comprehend as to how any other person/citizen/media can get copies of the details which even the accused is not entitled. Still worse will be the case of publication/telecast of the alleged materials referred above, which can only be on the basis of surmises/suspicion. During the course of investigation, the Investigating Agency is not allowed to divulge the details of investigation of any crime to the public at large on three counts namely; principle, authority and propriety.”
Most commendably, the Bench then hastens to add in para 22 that, “The Norms of Journalist Conduct published by Press Council of India, 2019 Edition also recognises that in a conflict between fair trial and freedom of speech fair trial has to necessarily prevail. It also makes it clear :
The media reports should not induce the general public to believe in the complicity of the person indicted as such kind of action brings undue pressure on the course of fair investigation by the police.
It is not always advisable to vigorously report crime related issues on a day to day basis nor to comment on supposed evidence of the crime without ascertaining the factual matrix.
Victim, witnesses, suspects and accused should not be given excessive publicity as it is amount to invasion of their privacy rights.
The media is not expected to conduct its own parallel trial or foretell the decision putting undue pressure on the judge, the jury or the witnesses or prejudice a party to the proceedings.”
The members of the electronic media should also be bound by the spirit of the above guidelines, which I feel is precise and reckoning the various rights mentioned above.”
It is worth noting that the Bench then holds in para 23 that, “The contention of the learned Addl. Director General of Prosecution Sri. Grashious Kuriakose is that the petitioner has no locus to approach this Court cannot be accepted as there are specific references in the reports about the petitioner.”
Most candidly, the Bench then concedes in para 24 that, “The 6th respondent herein who is alleged to have telecast items, the contents of which are evidenced by Exts. P8 to P11 and pleaded from paragraph Nos. 10 to 16 in the Writ Petition are if true l be nothing but gross interference in the due administration of justice. It further shows the propensity of the 6th respondent to publish/telecast such items despite the orders passed on earlier occasions by the court trying the Sessions Case and of this Court’s evidenced by Exts. P5, P6 and P7. The petitioners apprehension that the 6th respondent will indulge in similar telecasts in future has sound basis. As stated above, since these reports interferes/obstructs the due course of justice going by the principles culled out from the various decisions of the Apex Court, the sixth respondent is to be prevented from telecasting/publishing the reports in the nature of contents revealed in Exts. P8 to P11 reports and P12. The propensity of the 6th respondent is clear and therefore, a reasonable inference about its continuance can be drawn. Considering the nature of the contents of the publication/telecast in Exts. P8 to P11 and that those materials had not been established in any legal proceedings, there cannot be any justification for permitting such publications. Thus viewed, I have no hesitation to hold that the instant case warrants the extreme step of passing directions against the 6th respondent to prevent such publications in future.”
As a corollary, the Bench then directs in para 25 that, “Hence I direct the 6th respondent not to publish/broadcast/telecast any item concerning or relating to the petitioner herein while reporting about Crime No. 6 of 2022 of Crime Branch Police Station and SC No. 118 of 2018 of Additional Special Sessions Court (SPE/CBI) III, Ernakulam), except the order of the Court for a period of three weeks from today.”
Finally, the Bench then concludes by holding in para 26 that, “In view of the specific allegations made against respondents 3 to 5 in the Writ Petition, there will be a direction to the said respondents to file counter affidavits dealing with the said allegations. The 2nd respondent, State Police Chief is also directed to ensure that no information regarding the investigation of Crime No. 6 of 2022 of Crime Branch Police Station shall be leaked out to any one by any of the Investigating Officers . Post on 29.04.2022.”
All told, the Kerala High Court has very forthrightly, frankly, firmly and finally held in no uncertain terms that the media can’t make suggestions of guilt or innocence of a person or the credibility of witnesses. It is definitely the bounden duty of the media to fully comply with what the Kerala High Court has directed in this leading case. There can be certainly just no denying or disputing it!
Sanjeev Sirohi