Lessons from a case

CURTAINS came down on the sensational BMW hit-and-run case in the national capital with the Delhi High Court reducing the sentence of the prime accused, Sanjeev Nanda, to two years rigorous imprisonment, on July 21. Justice Kailash Gambhir found Nanda guilty of rash and negligent driving, rather than of culpable homicide not amounting to murder. As Nanda had already completed a substantial part of the sentence during the trial and faced only two more months of imprisonment, his family announced that he would not appeal against the verdict. Sanjeev Nanda is the son of an arms dealer, Suresh Nanda, and the grandson of former Navy chief Admiral S.M. Nanda.

The High Courts judgment was followed by an equally significant judgment from the Supreme Court on July 29, finding senior advocate R.K. Anand guilty of contempt of court for attempting to suborn a witness in the case and to disrespect the High Court proceedings in the matter.

Nanda, who was driving a BMW car while under the influence of alcohol, mowed down six persons in the wee hours of January 10, 1999. The Sessions Court, after a protracted trial involving many twists and turns, convicted Sanjeev Nanda on September 2, 2008, of culpable homicide not amounting to murder, and three other businessmen of destruction of evidence. The trial court set a precedent by making drunken driving resulting in an accidental death an offence of culpable homicide not amounting to murder, a crime that draws punishment of up to 10 years imprisonment. The court sentenced Nanda to seven years rigorous imprisonment amidst apprehensions of denial of justice.

On August 21, 2008, a Delhi High Court Bench comprising Justices Madan B. Lokur and Manmohan Sarin convicted Anand and another senior advocate of the High Court, I.U. Khan, of criminal contempt, punished them with a fine and suspension. Anand was defence counsel in the BMW case while Khan was the Special Public Prosecutor.

The High Court had taken suo motu notice of the telecast of a sting operation by NDTV on May 30, 2007, alleging that Anand and Khan colluded to influence a key witness. The witness, Sunil Laxman Kulkarni, was dropped from the list of witnesses, on the instructions of the police, on September 30, 1999. However, on March 19, 2007, the Additional Sessions Judge, hearing the case in the trial court, issued a summons to Kulkarni to depose as a court witness, and he did so, before the telecast of the sting.

The sting involved four operations, all of which Kulkarni carried out himself with Anand, Khan and Bhagwan Sharma, an advocate and colleague of Anand. After viewing the transcripts of these four operations, the High Court found that Anand, Khan and Bhagwan Sharma had deliberately tried to interfere with the due course of judicial proceedings and administration of justice by the courts. On August 21, 2008, the High Court convicted Anand and Khan for contempt of court and prohibited them 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. The High Court also recommended to the Full Court that they should be divested of the designation and honour of Senior Advocates, and imposed on them a fine of Rs.2,000 each. However, the High Court acquitted Sharma even while admonishing him for his unethical and unprofessional conduct of meeting Kulkarni.

The Additional Sessions Judge, Vinod Kumar, had this to say in the trial court judgment: It must be kept in mind that he [Kulkarni] was facing a public prosecutor [Khan] who was acting in collusion with defence counsel Anand. Therefore, the witness was clearly under great mental pressure at the time of recording of his evidence. Hence, the contradictions and improvement on the periphery appearing in his testimony should be seen in that light.

The High Court, however, looked at Kulkarnis testimony with considerable distrust. It found several discrepancies in his testimony as to what he did in Delhi on the day of the incident and on the subsequent days. The court also found his very description of the accident unreliable. The court held that the police made no effort to test Kulkarnis credibility.

Kulkarni claimed that on the fateful day, after witnessing the accident, he went to a petrol pump where he found everybody sleeping. He also stated he could not make any telephone call from the petrol pump. However, another witness, Hari Shankar, who was on duty at the petrol pump, informed his employer after witnessing the accident. His employer, in turn, contacted the police. The High Court found Hari Shankar more reliable than Kulkarni.

Again, Kulkarni checked out from his hotel on January 9, 1999, at about 12.30 p.m. He gave his place of destination as Solan, but he did not go to Solan at all. He had come to Delhi on January 7, 1999, to meet a Minister of State in connection with a vigilance case of an unnamed friend, but he never disclosed at any point which Minister he wanted to meet and on what date and at what time.

On January 9, 1999, after checking out from the hotel he went to see a movie at Sheela theatre, but did not disclose whether he saw any movie or not. At about 11.30 p.m., he went to Lodhi Colony to meet his friend, Sushil Kataria, whose address he could not remember. He stayed with this friend from 12 a.m. to 3.45 a.m. Then he went to Nizamuddin Railway Station, walking all the way because he could not get an autorickshaw, to board the Chhattisgarh Express to Bhopal. He stated he saw some auto drivers on the way, and it is not clear whether they refused to take him to the railway station.

According to the High Court, Kulkarni is a shady character who, in order to hog the limelight, made his entry on the scene on January 15, 1999, and was produced by the prosecution as its star witness. The court held: He utterly failed to prove his presence at the wee hours of wintry morning of January 10, 1999. The story as given by him was wholly unconvincing, illogical and irrational as to inspire any confidence.

The High Court ordered criminal proceedings against Kulkarni under Section 340 of the Criminal Procedure Code (Cr.PC) for deliberately and intentionally giving false evidence.

It was again Kulkarnis testimony that Nandas car reversed after killing the victims that forced the trial court to conclude that Nanda had knowledge that his act would kill the innocent victims. The trial court found that Kulkarnis testimony was corroborated by the oblique tyre marks as captured by the videography of the scene of the crime.

According to the High Court, however, Nanda had no knowledge of the presence of the victims on the road. Besides, the High Court felt that the reversal of the car by Nanda was a creation of Kulkarni, which found support neither from the prosecution version nor from the site plan and the video of the site. The police did not get expert evidence to prove that Nanda had reversed the car, the High Court pointed out.

The trial court convicted Nanda under Section 304 II of the Indian Penal Code (IPC) since, in its view, he had caused the accident with the knowledge that his rash and negligent driving in a state of drunkenness was likely to cause death. The High Court countered this finding with its view that Nanda drove the car rashly with the knowledge that illegal consequences might follow his act, but with the hope that they would not. This hope, the High Court suggested, would take Nanda out of the ambit of Section 304 II of the IPC and subject him to Section 304 A, IPC, which makes a rash and negligent act not amounting to culpable homicide punishable with imprisonment for a maximum of two years.

This interpretation of the High Court, introducing the element of hope within the meaning of knowledge, will mean that Section 304 II of the IPC can never be invoked against any accused as it is easy to claim that one hoped that what one knew would not actually happen. Therefore, this conclusion of the High Court gives the benefit of the doubt to Nanda, and is debatable.

As a result of this conclusion, the High Court had no option but to reduce the sentence of the other three people accused of seeking to destroy evidence in the case. The sentence of Rajiv Gupta was reduced from one year to six months rigorous imprisonment. The sentences of Shyam Singh Rana and Bhola Nath also stood reduced from six months rigorous imprisonment to three months rigorous imprisonment.

Part Two of the BMW case also came to a conclusion when the Supreme Court Bench comprising Justices B.N. Agrawal, G.S. Singhvi and Aftab Alam on July 29 rejected the appeal of R.K. Anand against the High Courts judgment punishing him for contempt of court. The Bench issued a notice to him asking why the mild punishment given by the High Court should not be enhanced. The Bench held that Anands conduct demanded that he should be kept away from the portals of the courts for a longer time.

The Bench, however, set aside Khans conviction and fine, giving him the benefit of the doubt. The period of four months prohibition from appearing in the Delhi High Court and its subordinate courts was already over.

The judgment in this case is significant for the contribution it makes to the understanding of sting journalism, an undercover operation, made popular by the Tehelka expose of fictitious defence deals in 2001. Since then, many Indian journalists have made use of sting operations to uncover social malpractices, political bribery at the highest level, and subversion of legal processes. But its practitioners have not been entirely free of allegations of professional misconduct.

The Bench agreed with the contention that there was nothing in the sting programme telecast by NDTV that could have influenced the outcome of the BMW trial. The Bench warned that a sting operation is an incalculably more risky and dangerous thing to do than normal reporting.

A sting operation is based on deception and, therefore, might attract the legal restrictions with far greater stringency and any infraction would invite more severe punishment. But the Bench was not prepared to lay down any pre-censorship norms for reporting of court proceedings by insisting on prior consent and permission of the court before telecasting a sting operation. The sting telecast by NDTV was indeed in the larger public interest and it served an important public cause: it brought out the attempt to suborn a witness with the object to undermine a criminal trial, in full public gaze.

During the arguments, NDTVs counsel Harish Salve submitted that even if the programme tended to influence marginally the proceedings in the BMW trial, the larger public interest served by it was so important that the little risk should not be allowed to stand in its way. The Bench refrained from going into this larger question, as in its view it was not necessary to do so, having found that the programme did not influence the BMW trial at all.

The Bench appreciated the professional initiative and courage shown by the young reporter, Poonam Agarwal, who conducted the sting operation.

The Bench felt that private news channels had a long way to go in the quest for excellence, but it is not for the court to lay down any reformist agenda for the media. Any attempt to control and regulate the media from outside is likely to cause more harm than good. The norms to regulate the media and to raise its professional standards must come from inside, the Bench said.