Bombay High Court: G.S. Patel, J., held that the reporter or any other commentator should not deliver for public consumption a view on the quality of evidence before judgment is pronounced. Only the Court can do that and that is firmly and exclusively the prerogative of the Court.

High Court noted that the 2nd respondent had gone beyond what was legitimately permissible in its reportage of a part of the cross-examination in the present matter.

Further, the Court stated that, in proceedings, in an Open Court System fair reporting cannot be restrained, except perhaps in the most extraordinary circumstances, or where there are valid issues of privacy and security.

“…with modern communications technology, the nature of reporting — often from the well of the Court itself — has radically changed: we often now see updates going out every few minutes on digital media.”

Expressing more on the said matter, Bench stated that there is a limit to what a news report can say and do.

“…fair reporting of court proceedings does not extend to comments on the quality of evidence or arguments before a Court before judgment is delivered. Assessing those — finding them good or bad —is no part of a reporter’s job. It is the work of a Court and only a Court.”

Elaborating the above, High Court remarked that Judges and lawyers are trained in the matter of appreciation of the entire body of evidence in a trial. It is often described as an art. A reporter or commentator, whether a journalist, columnist or a lay person, is certainly entitled to critically examine the resultant judgment. He or she is perfectly at liberty to critique or criticize that judgment, in terms that may even be fierce, harsh and unsparing.

What assessment can reporter do?

High Court added that simply noting a particular question and answer might also be acceptable, or at least not objectionable. But the line is crossed when such reproduction is accompanied by what is effectively a judgment on merits, a statement that purports to assess the evidentiary value and weight of the cross-examination in a matter yet pending before Court; for instance, by suggesting that some part of the cross-examination was repetitive or ineffective or futile. That is an assessment that no Court reporter can do.

An editorialising of yet-to-adjudged evidence, when communicated publicly, directly affects the decision-making process and, more importantly, clouds the perception of necessary neutrality in the decision-making process.

“…a fleeting impression by a journalist of the value of evidence is entirely beyond his or her legitimate scope. Such a journalistic pronouncement becomes unacceptable when it is conveyed to the reading audience or public as something already decided, or about which no other view is possible.”

Stating that the understanding of the process of appreciation of evidence, with which lawyers and judges are familiar not to be obvious to others who watch or follow a trial, Court held that the Udaipur Times was an advertent error.

“…the press and courts each have their roles to play. Each must respect the other’s duties and responsibilities, always careful not to cross the dividing lines. If courts should not gag or silence the press, then, equally, the press must be reasonably circumspect about entering a territory that is exclusively the preserve of a court.”

Dr Saraf assured the Court that the above has been explained to the staff concerned at the Udaipur Times and stated that no repetition of such would be committed.[Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2021 SCC OnLine Bom 1579, decided on 27-07-2021]

Advocates before the Court:

Mr Anand Desai, with Mr Chirag Mody, Mr Samit Shukla, Mr Nausher Kohli, Ms Saloni Shah & Ms Shivani Khanwilkar, i/b DSK Legal, for the Plaintiff in Suit and for Respondent No. 1 in IA/1152/2021 in S/337/2014.

Mr Iqbal Chagla, Senior Counsel, with Mr Fredun DeVitre, Senior Counsel, Mr Pankaj Savant, Senior Counsel & Mr Murtaza Kachwalla, i/b Argus Partners for the Applicant/Original Defendant.

Dr Birendra Saraf, Senior Advocate, with Dipesh Siroya, i/b Dipesh Siroya, for Respondent 2.

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