THE BOMBAY High Court Tuesday 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. Hearing a writ petition filed by nine journalists, including from The Indian Express, against the special CBI court’s November 29 order restraining the media from reporting the ongoing trial, Justice Revati Mohite-Dere asked: “Under which provision does the judge have the power to direct the media not to publish? Can the court, in the absence of power, pass such an order?”.
Representing the journalists, advocates Aabad Ponda and Abhinav Chandrachud, assisted by Varsha Bhogle and Shailendra Singh, relied on a Supreme Court judgment in which the court had ordered postponement of publication of a proceeding and had ruled that such powers lie only with the ‘court of records’, that is the HCs and the SC.
“The trial court’s order usurps jurisdiction of the superior courts. It has not prohibited access, it is an open trial which can be attended by anyone including the mediapersons but prohibits publication. The order is in nature of an injunction which it does not have the power to give. It cannot restrict the media from reporting the trial,” Ponda submitted.
Referring to the Code of Criminal Procedure, Code of Civil Procedure, Press and Registration of Books Act and Contempt of Courts Act, Ponda said there was no such provision in any of these laws to restrain publication as had been done by the trial court. “Even under provisions of special Acts such as Terrorism and Disruptive Activities (Prevention) Act or the Maharashtra Control of Organised Crime Act, legislature has refrained from banning publishing of trial proceedings,” he said.
Advocate Mihir Desai, representing the Brihanmumbai Union of Journalists, which also filed a writ against the trial court’s ban on publication, said the court had passed an order on an application “devoid” of any material to seek such a restraining order. The defence advocates, representing the accused in the Sohrabuddin Sheikh case, said the application was filed because there were apprehensions about the safety of accused, prosecutor, witnesses and defence advocates.
“Due to the involvement of political parties in the case, there are other political parties interested in this matter. They want to blame each other. Ultimately, innocent accused are becoming victims in the case,” advocate Rajesh Bindra said. Justice Mohite-Dere pointed out that the prosecution had not said anything about such an apprehension regarding witnesses. CBI counsel Sandesh Patil did not make any submission, and said the agency would leave it to the court to decide.
Other defence advocates submitted that the controversy surrounding the death of CBI judge Brijmohan Loya had impacted the case and was affecting the safety of the accused. The court said that had nothing to do with this case.
Initially, the defence advocates contended that as the SC has transferred to itself petitions pending in the Bombay HC regarding the death of judge Loya, this petition too should be transferred to the SC. Justice Mohite-Dere said the petition before it was a “completely different” matter and this petition was not connected to petitions in the apex court.