Scraps trial court gag order
The court’s decision comes a day after it had asked whether the trial court that passed an order restraining the media from reporting proceedings in the Sohrabuddin Sheikh alleged fake encounter case had the powers to do so.
The Bombay High Court Wednesday quashed and set aside a trial court order restraining the media from reporting on proceedings in the Sohrabuddin Sheikh alleged fake encounter case. Court observed that the “press is the most powerful watchdog of society”,
In her order, Justice Revati Mohite-Dere said “certainly public has a right to know what is happening in this case”.
She said freedom of press is intrinsic to the right to freedom of expression.
She was hearing a writ petition filed by nine journalists, including from The Indian Express, against the special CBI court’s order passed on November 29, 2017, restraining the media from reporting on the ongoing trial.
Justice Mohite-Dere held that in a democratic society, there must be right to fair trial. “The media is ensuring the public right to information. The media serves a larger public interest by ensuring dissemination of information which otherwise would not be easily accessible to the public… Press is the most powerful watchdog of society. In the facts of the case, interest of society is not to be treated with disdain. A fair trial is one which balances the public interest of society.”
Representing the journalists, advocates Aabad Ponda and Abhinav Chandrachud, assisted by Varsha Bhogle and Shailendra Singh, relied on a Supreme Court judgment ordering postponement of publication of a proceeding while ruling that such powers lie only with the ‘court of records’, that is the High Courts and the Supreme Court.
“Even defence counsel was unable to point out any provisions of law,” the High Court observed, regarding the trial court’s restraining order. “In the absence of any such provision, the ban on media from publishing facts relating to this case is clearly unsustainable and contrary to law.”
Referring to Section 327 of the Code of Criminal Procedure, which provides that any criminal court that is deemed to be an open court to which public may generally have access except in some cases, Justice Mohite-Dere said, “The statutory principles of administration of justice provides that justice must not only be done but it must also be seen as done. Open trial reaffirms this principle.”
The High Court did not accept the trial judge’s consideration of the sensational nature of the case being a reason to ban media from reporting the matter. “A mere allegation that justice could not be done or mere allegation of charged atmosphere is not enough reason to ban reporting… some of the accused allege they fear for their lives but nothing has been brought on record to substantiate the same except words,” Justice Mohite-Dere said. “Merely because it is sensational does not merit a gag order,” she said.
Taking into consideration involvement of high-ranking officers in the Sohrabuddin Shaikh alleged fake encounter case, the Supreme Court in 2010 asked the CBI to investigate the matter. Thereafter, the matter was transferred from Gujarat to Mumbai in 2012. Of the 38 accused in the case, 15 were discharged, 22 co-accused are facing trial while trial against one has been stayed.
On November 29, 2017, before commencement of the recording of evidence by the first prosecution witness, Rehman Abdul, an accused in the case, filed an application seeking to ban media coverage of the proceedings. The application was endorsed by advocates of other accused. The court passed an order the same day, restraining the media from reporting the case “till further orders”.
On Tuesday, the High Court said that questions to be addressed include whether the trial judge had the power to pass orders gagging the media, whether it violated fundamental rights and whether the facts justified such a gag.
Pointing out that the lawyer for the accused had sought that hearing in the matter be deferred as the Supreme Court is hearing matters relating to the death of judge B H Loya, the High Court held that “the present case is not remotely connected to the matter being heard by the Supreme Court… therefore, there is no question of deferring the matter”.
Taking into consideration that witnesses in a case were the eyes and ears of a case, the High Court held that in the interest of justice, they must be protected if necessary. “It is always open for the prosecution, if necessary, to request court to conceal the identity of the witnesses if needed,” Justice Mohite-Dere said.