"Bentham" noted jurist on the open court system observed that:
"in the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial in the sense that the security of all securities is publicity."
It is well settled that in general, all cases brought before the Courts, whether civil, criminal, or others, must be heard in open Court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two options on the broad proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public administration to the court-room.
Our judicial system works in an open and transparent manner and there is no restrain either on media or man of public to attend the proceedings of the Court. Even orders of day to day proceedings are now available on the web site of the respective courts and any person can get the information about the status of the case, proceedings as well as day to day orders of the Courts. It is without saying that the orders and the judgments of the court are the public documents. However, principle of open justice is not absolute and there can be exception in the interest of justice.
Print Page
"in the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial in the sense that the security of all securities is publicity."
It is well settled that in general, all cases brought before the Courts, whether civil, criminal, or others, must be heard in open Court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two options on the broad proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public administration to the court-room.
Our judicial system works in an open and transparent manner and there is no restrain either on media or man of public to attend the proceedings of the Court. Even orders of day to day proceedings are now available on the web site of the respective courts and any person can get the information about the status of the case, proceedings as well as day to day orders of the Courts. It is without saying that the orders and the judgments of the court are the public documents. However, principle of open justice is not absolute and there can be exception in the interest of justice.
Petitioner :- Reed Elsevier India Pvt. Ltd.
Respondent :- District & Sessions Judge, Lucknow & Others
Decided on;27 Nov 2012 Allahabad High court
Hon'ble Devendra Kumar Arora,J.
Short counter affidavit filed on behalf of opposite parties no. 2 to 5 is taken on record.
Heard Shri Prashant Chandra, Senior Advocate assisted by Shri Akshat Srivastava, learned counsel for the petitioner and Shri J.N. Mathur, Senior Advocate assisted by Shri Sudeep Seth, learned counsel for opposite parties no. 2 to 5.
Shri Prashant Chandra, Senior Advocate, learned counsel for the petitioner submitted that he will not file any reply to the short counter affidavit filed on behalf of opposite parties no. 2 to 5.
By means of present writ petition, the petitioner is challenging the order dated 23.10.2012 passed by the learned District and Session Judge, Lucknow (opposite party no. 1) in Regular Suit No. 134 of 2012 filed under the Copyright Act, 1957. The petitioner also prays that learned District & Sessions Judge, Lucknow may be directed not to extend the ex parte injunction order dated 22.09.2012 and command the opposite party no. 2 to 5 not to make any publicity in any manner of the order dated 22.09.2012 granted ex parte by the learned District and Session Judge, Lucknow and to command the Cyber Wing of the State Government (opposite party no. 6) to forthwith block and remove all material posted on the website of the opposite parties no. 2 to 5 and also other websites which have borrowed the said material and have been displaying it on the web.
The submission of learned counsel for the petitioner is that an ex parte ad interim temporary injunction was granted on 22.09.2012 by the learned District and Session Judge, Lucknow in favour of opposite parties no. 2 to 5 at the time of presentation of the Suit under the Copyright Act, 1957. It is also submitted that in principle the learned court below was persuaded to pass the said order on the basis of the examples given in the application under Order 39 Rules 1 and 2 and the "test of minimum creativity" as propounded by the Hon'ble Supreme Court in the case of Eastern Book Company Vs. D.B. Modak, reported in (2008) 1 SCC 1 (hereinafter referred to as "D.B. Modak Case") and it was solely on the basis of the cases cited in the said application, the learned Court below formulated a prima facie view in favour of granting an ex parte ad interim temporary injunction.
It is also submitted by the learned counsel for the petitioner that as the publications in the electronic and print media were causing a serious dent on the business and reputation of the petitioner, which is a reputed company dealing in publication of court judgments; and as the petitioner was flooded with queries as if it had been found guilty of having violated the copyright of opposite parties no. 2 to 5, an application was preferred on behalf of the petitioner indicating abuse of the process of Court by the opposite parties no. 2 to 5 by indulging in adverse and negative publicity against the petitioner. The learned District Judge, Lucknow vide order dated 03.10.2012 directed Shri Sudeep Seth, learned counsel for the opposite parties no. 2 to 5 to instruct his client not to make publication of the temporary injunction in electronic and print media till the date fixed.
Further submission of learned counsel for the petitioner is that instead of ensuring the compliance of the order passed by the learned court below, the material posted on the website was not removed and an affidavit dated 16.10.2012 was filed along with an application, seeking vacation of the part of order dated 03.10.2012. In paragraph no. 10 of the said affidavit, it has been mentioned that only the courts of record i.e. High Court and Supreme Court have the power to postpone publicity in appropriate cases as preventive measure without disturbing its contents. It has been further mentioned that Hon'ble Supreme Court has held that an aggrieved person apprehending the content of the publication to infringe his right to a fair trial would be entitled to approach the writ court and seek an order of postponement of the offending publication or postponement of reporting of certain phases of trial and writ court may grant such preventive relief on balancing of the right to a fair trial and bearing in mind the principles of necessity and proportionality.
It is also submitted that subsequently, on being objection raised by the learned court below, the affidavit dated 16.10.2012 was permitted to be withdrawn and another affidavit was filed by opposite parties no. 2 and 5 on 19.10.2012 in which again it was emphasized that "no restraint orders from publicizing the order of temporary injunction can be passed". The opposite parties in response to the averments made by the petitioner, filed counter affidavit on 18.10.2012 and a supplementary counter affidavit on 19.10.2012, in which it has been stated that further publication with new material has not been made by the Plaintiffs in the print and electronic media but the question of removal of publication already made in the print and electronic media, does not arise and there was no direction of the Court on 03.10.2012 to remove the earlier press release from the print and electronic media. It was also mentioned that they have released the contents of the order of injunction to the press to bring forth to the notice of the consumers about the infringement of their copyright being made by the defendants, without any alteration in the language used in the order of temporary injunction and the injunction order dated 22.09.2012 was issued against the defendants, their assigns and business franchisees, licensees, distributors, agents etc.. The publication of the order of injunction was meant for bringing it to the notice of the business Franchisees, licensees, distributors, agents etc. also and the plaintiffs cannot remove the posts and press release on the website and Facebook Home page of other entities.
The opposite parties filed another counter affidavit dated 20.10.2012, in which it has been alleged that the petitioner is continuing to infringe the copyright of the opposite parties no. 2 to 5 and as such, is not entitled for any relief under Section 151 C.P.C. and no material is being uploaded by them on their website. regarding distribution of their own publication even after the passing of the order dated 03.10.2012, the opposite party no. 3 has alleged that the same was sent for being published prior to the order dated 03.10.2012 and consequently, its distribution after 03.10.2012 would not amount to disobedience of the said orders of the learned Court below.
It is also submitted that the petitioner/defendant moved an application primarily praying for restraining the opposite parties no. 2 to 5 from making any publicity of the orders dated 22.09.2012 and to ensure compliance of the order dated 03.10.2012 passed by the learned court below. It was emphasized in the affidavit filed in support of application that on the basis of the ex parte order dated 22.09.2012, a presumption had been drawn by the opposite parties no. 2 to 5 that the petitioner had already been held guilty of having infringed the copyright of the opposite parties no. 2 to 5 on the basis of D.B. Modak Case. As the order dated 03.10.2012 was being defied with impunity and the disobedience was being defended with unprecedented impertinence; and it was categorically alleged by the opposite parties no. 2 to 5 that it was not within their domain to remove all what had already been uploaded on their website and released through the print media. The petitioner preferred an application under Section 151 C.P.C. on 19.10.2012, seeking direction that in view of the helplessness expressed by plaintiffs/opposite parties no. 2 to 5, the Senior Superintendent of Police/Cyber Cell of the State of U.P. be directed to block the posts and press releases publicizing the ex parte ad interim injunction order dated 22.09.2012 and also withdraw them from the websites of the opposite parties nos. 2 to 5 as well as other respective third party websites.
Further submission of learned counsel for the petitioner is that hearing of the said applications of the petitioner took place on several dates and ultimately order was reserved and thereafter learned District and Session Judge, Lucknow passed a cryptic order dated 23.10.2012 and failed to exercise the jurisdiction vested in him and has erred in not passing an innocuous order, so as to give effect to the orders already passed by him on 03.10.2012. Learned District Judge has not taken into consideration the stand of the petitioner; and little realizing that the suit itself was hopelessly time barred; and the purpose of filing the suit was not at all bonafide but was for the purposes of making adverse publicity in the electronic as well as print media, so as to cause deliberate and calculated harm to the petitioner. It is also submitted that disposal of all the applications on the premise that while deciding the issue regarding the disobedience of the orders passed by the learned Court below, the merit of the application for injunction and the Suit would have to be decided, is per se misplaced and is unsustainable. It is emphasized that by virtue of the provisions contained in Section 52 (q) (iv) and proviso to Section 55 of the Copyright Act, 1957, continuance of ex parte ad interim injunction dated 22.09.2012 is per se bad and is unsustainable being without authority of law. Learned counsel for the petitioner submitted that order dated 23.10.2012 passed by the learned District Judge, Lucknow is unjust, illegal, without application of mind and in derogation to the jurisdiction vested in him and as such the same is liable to be quashed.
It has also been submitted by learned counsel for the petitioner that no explanation whatsoever was given as to why there has been a deliberate violation of the directions dated 03.10.2012 issued by learned District & Session Judge, Lucknow. It is settled position of law that every court is possessed of the power to exercise inherent jurisdiction in the interest of justice. It is also pointed out that for grant of injunction under Order 39 Rule 1 and 2 of the C.P.C., it has consistently been held by Hon'ble Apex Court and various High Courts that upon prima facie case alone being made out, an injunction is not to be granted rather irreparable loss has also to be taken into consideration.
Learned counsel for the petitioner in support of his submission placed reliance on the judgments reported in 1995 (6) SCC 742, Moolchand and others vs. Fatima Sultana Begun and others, 1996 (5) SCC 550, Indian Bank vs. Satyam Fibres (India) Pvt. Ltd., 2007 (11) SCC 374, All Bengal Excise Licensees' Association vs. Raghabendra Singh and others, 2007 (15) SCC 218, Palitana Sugar Mills Pvt. Ltd. and another vs. Vilasiniben Ramachandran and others and the judgment of Hon'ble Supreme Court delivered in Civil Appeal No.9813 of 2011, dated 18.10.2011, Sahara India Real Estate Corporation Ltd. vs. Securities Exchange Board of India, and submitted that wherein violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the court as a policy to set the wrong right and not allow the perpetuation of the wrong doing, as inherent powers are powers which are resident in all courts, especially of superior jurisdiction and these powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. It is also submitted that civil courts have powers under Section 151 PC.P.C. to pass order prohibiting the abuse of the process of court. As learned Judge failed to appreciate the grievance of the petitioner, therefore, petitioner is constrained to approach this Court by means of present writ petition.
Shri, J.N. Mathur, Senior Advocate assisted by Shri Sudeep Seth, learned counsel for opposite parties no. 2 to 5 submitted that the present writ petition is not maintainable as the petitioner has statutory alternative remedy of filing Civil Revision under Section 115 of the Code of Civil Procedure, 1908, against the order dated 23.10.2012 passed the learned District Judge, Lucknow in Regular Suit No. 134 of 2012 (Eastern Book Company Vs. Reed Elsevier India Ltd.). In the order dated 23.10.2012, it has been mentioned by the learned District Judge, Lucknow that if the Misc. Applications preferred by the petitioner/defendant are disposed of finally then it would affect the final decision of the Regular Suit and would also affect the disposal of application for temporary injunction. It is pointed out that opposite party no. 6, Cyber Wing of State Government through Senior Superintendent of Police, Lucknow was not arrayed as a party in the Suit, hence, the opposite party no. 6 ought to be deleted from the array of opposite parties in the present writ petition.
It is further submitted that petitioner/defendant did not file any application under Order 39 Rule 4 C.P.C. for vacation of order of injunction and has not denied infringement of the copyright of the plaintiffs/answering opposite parties in their literary work titled "Supreme Court Cases" (SCC). It has not been pleaded by the petitioner/defendant in the trial court about the suit being time barred and any such assertion in the present writ petition is not liable to be considered by this Hon'ble Court. It is also submitted that petitioner/defendant filed an application dated 03.10.2012 supported with an affidavit dated 02.10.2012 (Annexure no. 4 to the writ petition), in which petitioner/defendant prayed for four reliefs and the relief no. (a) and (c) were not granted by the learned District Judge, Lucknow in the order dated 03.10.2012. The petitioner sought relief (a) directing the plaintiffs to immediately withdraw press release from the website as well as face-book home page and relief (c) directing the plaintiffs to publish an apology of giving negative publicity of the injunction order dated 22.09.2012 in the media in breach of Supreme Court decision in the matter of Sahara India Real Estate Corporation Ltd. Vs. Securities Exchange Board of India.
Shri J.N. Mathur, learned Senior Advocate also submitted that answering opposite parties/plaintiffs had simply released the contents of the order of interim injunction dated 22.09.2012 and Section 4 of the Contempt of Courts Act, 1971 provides that subject to the provisions contained in Section 7, a person shall not be guilty of contempt of Court for publishing a fair and accurate report of judicial proceeding or any stage thereof. Section 7 is not applicable in the present case. Hence, a press release of the contents of order of interim injunction by the answering opposite parties is not prohibited under any law nor it flouts the provisions of Contempt of Courts Act, 1971. On the other hand, publishing the fair and accurate report of judicial proceeding or any stage thereof is protected under Section 4 of the Contempt of Courts Act, 1971. It is also submitted that vide order dated 03.10.2012, the learned District Judge, Lucknow directed the counsel for the plaintiffs to instruct his clients not to make any publication of order of injunction in the print and electronic media till the next date. In difference of the order passed by the learned District Judge, Lucknow, the plaintiffs/answering opposite parties have not made any further publication with new material in print and electronic media.
Learned counsel for opposite parties no. 2 to 5 further submitted that order dated 23.10.2012 (Annexure no. 1 to the writ petition) was passed by the learned District Judge, Lucknow, aptly observing and recording a finding that on the basis of the case laws relied upon by counsel for the parties and reference made to various provisions of the copyright Act, if any order was passed for disposal of Misc. Applications preferred by the defendants, it would tantamount to disposal of application for interim injunction on merits. Since any order so passed would have affected the disposal of application for temporary injunction and would also have affected the final decision of the regular suit, as such, the learned District Judge, Lucknow, found it fit to permit the counsel for both the parties to argue on final disposal of application for temporary injunction. The Misc. Applications were disposed of accordingly and 25.10.2012 was fixed for hearing on application for temporary injunction. On 25.10.2012, an adjourned was sought on behalf of defendants and matter was fixed for 26.10.2012 for hearing. On 26.10.2012, learned counsel for defendants sought time to file detailed objection against application for temporary injunction and submitted that since detailed objections could not be filed, hence, hearing on application for temporary injunction is not possible, accordingly, with the consent of counsel for the parties, a time frame was fixed for exchange of objections and rejoinder affidavit and the next date has been fixed as 27.11.2012 for hearing on application for temporary injunction.
Shri Jaideep Narain Mathur, learned Senior Advocate for the opposite parties no. 2 to 5 in support of his submission placed reliance upon Full Bench judgment of this Court reported in AIR 1970 Allahabad 376, Zila Parishad, Budaun and others vs. Brahma Rishi Sharma and submitted that the provisions of Order 39 do not classify orders of injunction into (1) an ex-parte order of injunction and (2) a final order of injunction. Courts have coined this dichotomy for the sake of convenience of speech and expressions. In the eye of law an 'ex-parte' order is as much an order under Rule 1 or 2 as a 'final' order.
It is also submitted by Shri Mathur that Hon'ble Supreme Court in the case of Sahara India Real Estate Corporation Ltd. vs. Securities Exchange Board of India (Supra), has held that superior court i.e. High Court and Supreme Court, who on examination if found that if the administration of justice is prejudiced, can prohibit temporarily, statement being made in the media in a given case pending in the Supreme Court, or in the High Court or even in the subordinate court and in the present case the opposite parties no. 2 to 5 have not violated the order dated 03.10.2012 as no publication was made after the stay, whereas there was no order by trial court for removal of publication already made regarding grant of temporary injunction.
It is also submitted by Shri Mathur that on one hand the petitioner is aggrieved by publication of interim injunction in a Print & Electronic Media and on the other hand petitioner got published the order dated 03.10.2012 on 11.11.2012, as is evident from page 75 of the writ petition. It is also submitted that present proceedings are not the contempt proceedings and the case laws relied upon by the learned counsel for the petitioner are not relevant for the purposes of present controversy. It is also submitted that it is always open for the petitioner to move appropriate application under the provisions of Order 39 Rule 2-A of C.P.C., if petitioners think that the answering respondents have violated the orders in any manner and in this background Sri J. N. Mathur, Senior Advocate vehemently submitted that in view of the above facts, circumstances and legal proposition, the present writ petition is not maintainable and is liable to be dismissed in limine.
I have examined the submissions of the learned counsels for parties and gone through the record.
"Bentham" noted jurist on the open court system observed that:
"in the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial in the sense that the security of all securities is publicity."
It is well settled that in general, all cases brought before the Courts, whether civil, criminal, or others, must be heard in open Court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two options on the broad proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public administration to the court-room.
Our judicial system works in an open and transparent manner and there is no restrain either on media or man of public to attend the proceedings of the Court. Even orders of day to day proceedings are now available on the web site of the respective courts and any person can get the information about the status of the case, proceedings as well as day to day orders of the Courts. It is without saying that the orders and the judgments of the court are the public documents. However, principle of open justice is not absolute and there can be exception in the interest of justice.
The nine Judges Bench of the Hon'ble Apex Court in the case of Naresh Shridhar Mirajkar vs. State of Maharastra, reported in AIR 1967 SC 1, while examining the power of Court to conduct the court proceedings in camera under its inherent powers and also to incidentally prohibit publication of the Court proceedings or evidence of the cases outside the Court by the Media, held that all court are having inherent powers. Supreme Court, High Court and Civil Court can issue prior restraint orders or proceedings, prohibitory in exceptional circumstances temporarily prohibiting publication of court proceedings to be made in the media and that such powers do not violate Article 19(1)(a).
The question of prior restraint arose before the Hon'ble Apex Court in the matter of Reliance Petro Chemicals Ltd. vs. Proprietors of Indian Express Newspapers, Bombay (P) Ltd., reported AIR 1989 SC 190 in which a test was formulated to the effect that any preventive injunction against the press must be "based on reasonable grounds for keeping the administration of justice unimpaired" and that, there must be reasonable ground to believe that the danger apprehended is real and imminent. Hon'ble Apex Court went by the doctrine propended by Holmes J. of " Clear and Present Danger" and treated the said doctrine as the basis of balance of convenience test.
The position is absolutely clear that every court is having inherent power to restrain the publication of the proceedings for a temporary period, if publication of the same effects the interest of a party and administration of justice of a particular case. However, while passing such orders of postponement, in the absence of any other alternative measures, such as change of venue or postponement of trial, satisfy the requirement of justification under Article 19(2) and the same also helps the courts to balance conflicting societal interest of right to know vis a vis another societal interest in fair administration of justice.
Even section 4 of the Contempt of Courts Act, 1971 deals with the report of a judicial proceeding and it provides that a person will not be treated as guilty of contempt if he has published such a report which is fair and accurate. The provision of Section 4 are subject to the provisions of section 7 of the Act which deals with the publication of information relating to proceedings in Chambers.
The Hon'ble Apex Court In Sahara India Real Estate Corporation Ltd. (supra) while examining the issue of postponement of publication, its nature and object, pleased to observe that courts are duty bound under inherent jurisdiction, subject to parameters mentioned in judgment, to protect the presumption of innocence which is now recognised as a human right under Article 21, subject to the applicant proving displacement of such a presumption in appropriate proceedings as well as to satisfy the test of reasonableness. The para 43 of the judgment which lays down the principle reads as under:
"In the light of law annunciated herein above, anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the contents of the publication and its effect, an infringement of his/her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ court and seek an order of postponement of the offending publication/ broadcast or postponement of reporting of certain phases of the trial including identity of the victim or the witness or the complainant and that the court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19 (1(a) rights, bearing in mind the above mentioned principles of necessity and proportionality and keeping in mind that such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. Such neutralizing device (balancing test) would not be an unreasonable restriction and on the contrary would fell within the proper constitutional framework."
After examining the legal position, now this Court proceed to examine the impugned order dated 23.10.2012 and submissions of respective parties.
The present writ petition has been filed by the petitioners being aggrieved against the order of the District Judge, Lucknow dated 23.10.2012, passed in Regular Suit No. 134 of 2012, Eastern Book Company vs. Reed Elsevier India Private Ltd., filed under the Copyright Act, 1957, by which application of the petitioner dated 16.10.2012 under section 151 C.P.C. for seeking immediate action against the answering opposite parties/plaintiffs for violating the Court's order dated 3rd October, 2012, as well as application for direction to the Senior Superintendent of Police/ Cyber Squad dated 19.10.2012 were disposed of with the observations that on the basis of case laws relied by learned counsel for the parties and the references made to the various provisions of Copyright Act, 1957, if any order is passed for disposal of the misc. application referred by the defendants, it would definitely effect the disposal of the application for temporary injunction as well as merit of the suit and accordingly, learned counsel for parties were directed to argue on final disposal of the application for temporary injunction and fixed the date 25.10.2012 for hearing on the application for temporary injunction.
Petitioner has also prayed for a writ, order or direction in the nature of mandamus commanding the District Judge, Lucknow to not to extend the exparte injunction order dated 22.9.2012 and to command the opposite parties no. 2 to 5 not to make any publicity in any manner of the order dated 22.9.2012. Petitioner further prayed that Cyber Wing of State Government through Senior Superintendent of Police, Lucknow (Opposite Party No. 6) be directed to block and remove all the material posted on the website of the opposite parties no. 2 to 5 and also other websites which have borrowed the said material and are displaying it on the web.
From perusal of the record, it is evident that the answering opposite parties no. 2 to 5 filed a regular suit bearing no. 134 of 2012, Eastern Book Company vs. Reed Elsevier India Private Ltd. under the Copyright Act, 1957, against the petitioner alongwith application under Order 39 Rule 1 & 2, C.P.C. and the learned District Judge after examining the grievance of the answering respondents while issuing notice to the petitioner/defendant, passed an interim injunction restraining the petitioner/defendants, their assigns and business franchisees, licensees, distributors, agents etc. from infringing the copyrights in the literary work of the plaintiffs in their law report 'Supreme Court Cases' (SCC) and from selling, distributing or otherwise making available to the public, either as CD Roms or through their websites on the Internet or by any other means, copies of its law reports and data bases which infringe the copyrights of the plaintiffs in and to the law reports titled Supreme Court Cases (SCC).
It appears that the said interim injunction order dated 22.9.2012 was displayed on home page of the web sites as well as in the magazine, namely, Practical Lawyer of the opposite parties no. 2 to 5. The other agencies also reported the interim injunction order granted by the learned District Judge on the basis of press notes circulated by the answering opposite parties no. 2 to 5, in the electronic and print media. The petitioner feeling aggrieved against the publication and publicity of interim injunction dated 22.9.2012 in the electronic and print media moved an application on 3.10.2012 on the ground that the same is causing a serious dent to their business and reputation, with the following prayer:
'(a) The plaintiffs jointly and severally be directed to immediately withdraw the said press releases from their websites as well as their Facebook home page.
(b) The Plaintiffs jointly and severally be restrained from further publicizing the ex parte ad-interim injunction order dated 22nd September, 2012 in any print or electronic media, including the internet or otherwise in any other manner.
(c) The Plaintiffs jointly and severally be ordered and directed to publish by way of an apology that they have wrongfully given negative publicity of the ex-parte ad-interim injunction Order dated 22nd September, 2012 in the media and on the internet or in any manner whatsoever, as the same is in breach of the Supreme Court decision in the matter of Sahara India Real Estate Corporation Ltd.vs. SEBI, order dated 11.9.2012.
(d) The said ex-party ad-interim injunction Order dated 22.9.2012 be not extended in favour of the Plaintiffs and be vacated with immediate effect, as the balance of convenience is clearly in favour of the defendants, who would otherwise be severely prejudiced and suffer grave and irreperable injury to their goodwill and reputation,'
Learned District Judge by means of order dated 3.10.2012 directed Sri Sudeep Seth, learned counsel for the answering opposite parties/ plaintiffs to instruct his client, not to make any publication of the temporary injunction till the date fixed in print or electronic media.
The answering respondents contested the said application by filing reply and made averments that the contents of the order of injunction has been released prior to the passing of the order dated 3.10.2012 and submitted that only the courts of record i.e. High Court and Supreme Court have the power to postpone publicity in appropriate cases as preventive measure without disturbing its contents and an aggrieved person apprehending the content of the publication to infringe his right to a fair trial would be entitled to approach the writ court and seek an order of postponement of the offending publication or postponement of reporting of certain phases of trial and writ court may grant such preventive relief on balancing of the right to a fair trial and bearing in mind the principles of necessity and proportionality.
The petitioner-defendants moved another application dated 6.10.2012 for taking immediate action against the plaintiff under the provisions of Section 151 of Code of Civil Procedure , for violating the Court's order dated 03.10.2012.
The answering opposite parties no. 2 to 5/ plaintiffs while opposing the application, have taken stand that no further publication with new material was being made by the plaintiffs in the print and electronic media, but the question of removal of publication already made in the print and electronic media did not arise, as there is no direction in the order dated 03.10.2012 of the court, to remove the earlier press release from the print and electronic media and they have not altered the language used in temporary injunction. The temporary injunction was issued against the defendants, their assigns and business franchisees, licensees, distributors, agents etc. and publication of the order of injunction was meant for bringing it to the notice of the business franchisees, licensees, distributors, agents etc. also.
The petitioner thereafter moved another application on 19.10.2012 under Section 151 C.P.C. for direction to the Senior Superintendent of Police, Lucknow / Cyber Cell/Cyber Squad on the ground that the answering opposite parties no. 2 to 5/ plaintiffs in their counter affidavit to the supplementary affidavit dated 15.10.2012 stated that further publication with new material has not been made in the print and electronic media, but the question of removal of publication already made does not arise and plaintiffs cannot remove the print and press release on the web site & Face Book Home Page of other entities, as it was not within their domain and sought a direction to block the posts and press releases publicizing the ex-parte ad-interim injunction order dated 22.9.2012 and also withdraw them from the websites of the plaintiffs and also other respective third party websites.
Sri J. N. Mathur, learned counsel for answering opposite parties no. 2 to 5 submitted that after passing of the order dated 3.10.2012 by the learned District & Sessions Judge, Lucknow on the application of the petitioner/defendants no matter was published by them either in print or in electronic media but it is the petitioner himself, who got published the order dated 3.10.2012 on the website of Legally India on 11.10.2012 with the Heading " Case report war continues: Lexis Nexis injuncts EBC from publicizing own injunction" The report further reveals that on 3rd October, Lexis Nexis obtained an injunction from the Lucknow District Court that stated, according to a translation of the Hindi order supplied to Legally India by the Company. The publication also indicates that the answering respondents declined to make any comments on the same as is evident from page 75 of the writ petition.
In this background, Sri J. N. Mathur submitted that on the one hand the petitioner wants to restrain the answering opposite parties from making any publication of the temporary injunction granted by the trial court and on other hand, petitioner itself got published the order dated 3.10.2012 and it is not open for the petitioner to approbate and reprobate simultaneously.
This Court also examine the application dated 03.10.2012 (Annexure no.4 to the writ petition), by which the petitioner/ defendant sought direction for restraining the plaintiffs/ answering opposite parties no.2 to 5 from negatively publishing the order dated 22.09.2012 and refusal of the extension of the said order, as well as application dated 06.10.2012. ((Annexure no.14 to the writ petition), by which prayer has been made for taking immediate action against the plaintiffs/ answering opposite parties no. 2 to 5 under the provisions of Section 151 of Code of Civil Procedure, 1908 for violating the court's order dated 03.10.2012 and application dated 19.10.2012 (Annexure no.12 to the writ petition) seeking directions for Senior Superintendent of Police, Lucknow/ Cyber Cell/ Cyber Squad.
In none of the applications and the affidavits filed in support thereof, the petitioner has stated, in what manner the publication of interim order dated 22.09.2012 is affecting the fair trial and administration of justice, the only submission of learned counsel for the petitioner is that on account of publication of interim injunction is causing a serious dent to their business, reputation and goodwill. The learned District Judge by means of order dated 03.10.2012 directed the learned counsel for the plaintiffs/ answering opposite parties no.2 to 5 not to make publication of the order of interim injunction in an electronic and print media till the date fixed and admittedly no order for removal of the said publication was passed by the learned District Judge.
Learned counsel for the petitioner failed to demonstrate any publication after passing of the order dated 03.10.2012 except the material posted earlier on the home page of the website of opposite parties no. 2 to 5, which is still existing. It is very strange that on one hand the petitioner is aggrieved on account of publication of interim injunction by the answering opposite parties no.2 to 5 on the home page of their website as well in their Magazine and other agencies, and on the other hand, the petitioner himself got the order dated 03.10.2012 published on the website of 'Legally India', as is evident from perusal of page 75 of the paper book, which clearly indicates that the translation of Hindi order dated 03.10.2012 was supplied by the company (petitioner) to the 'Legally India'. The report further indicates that on the other hand the answering opposite party no.3 declined to make any comments on the same. In this manner, it is not open for the petitioner to approbate and reprobate simultaneously.
Now, the examination of impugned order 23.10.2012 reveals that learned District Judge while disposing of the concerned applications of the petitioner observed that on the basis of case laws relied by the learned counsel for parties and reference made to the various provisions of Copyright Act, 1957, if any order is passed, the same will definitely effect the disposal of the application for temporary injunction as well as merit of the suit and accordingly directed the learned counsel for the parties to advance their arguments on the application for temporary injunction and fixed date 25.10.2012 for the final disposal of the application for interim direction, but the petitioner sought adjournment for 26.10.2012. On 26.10.2012, Shri Prashant Chandra, learned Senior Advocate for the petitioner/defendant submitted that hearing is not possible, as he could not file detailed objections against the application for temporary injunction and with the consent of the learned counsel for the parties while fixing 27.11.2012 for hearing on the application for temporary injunction, time was granted for filing detailed objection to the application for temporary injunction till 09.11.2012 and thereafter ten days for rejoinder affidavit.
Learned counsel for the petitioner in support of his submission mainly cited judgments on the issue of inherent power of the Court as well as relating to the contempt matters.
On examination, none of the judgments cited by the learned counsel for the petitioner help the petitioner in any manner in the facts and circumstances of the instant case.
On due consideration, this Court does not find any illegality or infirmity in the impugned order dated 23.10.2012 of the learned District Judge. Learned counsel for the petitioner failed to demonstrate, in what manner the publication of the order will effect the fair trial of the suit or will prejudice the administration of justice.
No good ground has been made out before this Court for interference in the matter.
Accordingly, the writ petition lacks merit and is hereby dismissed.
Order Date :- 27.11.2012
Tanveer/ashok
Respondent :- District & Sessions Judge, Lucknow & Others
Decided on;27 Nov 2012 Allahabad High court
Hon'ble Devendra Kumar Arora,J.
Short counter affidavit filed on behalf of opposite parties no. 2 to 5 is taken on record.
Heard Shri Prashant Chandra, Senior Advocate assisted by Shri Akshat Srivastava, learned counsel for the petitioner and Shri J.N. Mathur, Senior Advocate assisted by Shri Sudeep Seth, learned counsel for opposite parties no. 2 to 5.
Shri Prashant Chandra, Senior Advocate, learned counsel for the petitioner submitted that he will not file any reply to the short counter affidavit filed on behalf of opposite parties no. 2 to 5.
By means of present writ petition, the petitioner is challenging the order dated 23.10.2012 passed by the learned District and Session Judge, Lucknow (opposite party no. 1) in Regular Suit No. 134 of 2012 filed under the Copyright Act, 1957. The petitioner also prays that learned District & Sessions Judge, Lucknow may be directed not to extend the ex parte injunction order dated 22.09.2012 and command the opposite party no. 2 to 5 not to make any publicity in any manner of the order dated 22.09.2012 granted ex parte by the learned District and Session Judge, Lucknow and to command the Cyber Wing of the State Government (opposite party no. 6) to forthwith block and remove all material posted on the website of the opposite parties no. 2 to 5 and also other websites which have borrowed the said material and have been displaying it on the web.
The submission of learned counsel for the petitioner is that an ex parte ad interim temporary injunction was granted on 22.09.2012 by the learned District and Session Judge, Lucknow in favour of opposite parties no. 2 to 5 at the time of presentation of the Suit under the Copyright Act, 1957. It is also submitted that in principle the learned court below was persuaded to pass the said order on the basis of the examples given in the application under Order 39 Rules 1 and 2 and the "test of minimum creativity" as propounded by the Hon'ble Supreme Court in the case of Eastern Book Company Vs. D.B. Modak, reported in (2008) 1 SCC 1 (hereinafter referred to as "D.B. Modak Case") and it was solely on the basis of the cases cited in the said application, the learned Court below formulated a prima facie view in favour of granting an ex parte ad interim temporary injunction.
It is also submitted by the learned counsel for the petitioner that as the publications in the electronic and print media were causing a serious dent on the business and reputation of the petitioner, which is a reputed company dealing in publication of court judgments; and as the petitioner was flooded with queries as if it had been found guilty of having violated the copyright of opposite parties no. 2 to 5, an application was preferred on behalf of the petitioner indicating abuse of the process of Court by the opposite parties no. 2 to 5 by indulging in adverse and negative publicity against the petitioner. The learned District Judge, Lucknow vide order dated 03.10.2012 directed Shri Sudeep Seth, learned counsel for the opposite parties no. 2 to 5 to instruct his client not to make publication of the temporary injunction in electronic and print media till the date fixed.
Further submission of learned counsel for the petitioner is that instead of ensuring the compliance of the order passed by the learned court below, the material posted on the website was not removed and an affidavit dated 16.10.2012 was filed along with an application, seeking vacation of the part of order dated 03.10.2012. In paragraph no. 10 of the said affidavit, it has been mentioned that only the courts of record i.e. High Court and Supreme Court have the power to postpone publicity in appropriate cases as preventive measure without disturbing its contents. It has been further mentioned that Hon'ble Supreme Court has held that an aggrieved person apprehending the content of the publication to infringe his right to a fair trial would be entitled to approach the writ court and seek an order of postponement of the offending publication or postponement of reporting of certain phases of trial and writ court may grant such preventive relief on balancing of the right to a fair trial and bearing in mind the principles of necessity and proportionality.
It is also submitted that subsequently, on being objection raised by the learned court below, the affidavit dated 16.10.2012 was permitted to be withdrawn and another affidavit was filed by opposite parties no. 2 and 5 on 19.10.2012 in which again it was emphasized that "no restraint orders from publicizing the order of temporary injunction can be passed". The opposite parties in response to the averments made by the petitioner, filed counter affidavit on 18.10.2012 and a supplementary counter affidavit on 19.10.2012, in which it has been stated that further publication with new material has not been made by the Plaintiffs in the print and electronic media but the question of removal of publication already made in the print and electronic media, does not arise and there was no direction of the Court on 03.10.2012 to remove the earlier press release from the print and electronic media. It was also mentioned that they have released the contents of the order of injunction to the press to bring forth to the notice of the consumers about the infringement of their copyright being made by the defendants, without any alteration in the language used in the order of temporary injunction and the injunction order dated 22.09.2012 was issued against the defendants, their assigns and business franchisees, licensees, distributors, agents etc.. The publication of the order of injunction was meant for bringing it to the notice of the business Franchisees, licensees, distributors, agents etc. also and the plaintiffs cannot remove the posts and press release on the website and Facebook Home page of other entities.
The opposite parties filed another counter affidavit dated 20.10.2012, in which it has been alleged that the petitioner is continuing to infringe the copyright of the opposite parties no. 2 to 5 and as such, is not entitled for any relief under Section 151 C.P.C. and no material is being uploaded by them on their website. regarding distribution of their own publication even after the passing of the order dated 03.10.2012, the opposite party no. 3 has alleged that the same was sent for being published prior to the order dated 03.10.2012 and consequently, its distribution after 03.10.2012 would not amount to disobedience of the said orders of the learned Court below.
It is also submitted that the petitioner/defendant moved an application primarily praying for restraining the opposite parties no. 2 to 5 from making any publicity of the orders dated 22.09.2012 and to ensure compliance of the order dated 03.10.2012 passed by the learned court below. It was emphasized in the affidavit filed in support of application that on the basis of the ex parte order dated 22.09.2012, a presumption had been drawn by the opposite parties no. 2 to 5 that the petitioner had already been held guilty of having infringed the copyright of the opposite parties no. 2 to 5 on the basis of D.B. Modak Case. As the order dated 03.10.2012 was being defied with impunity and the disobedience was being defended with unprecedented impertinence; and it was categorically alleged by the opposite parties no. 2 to 5 that it was not within their domain to remove all what had already been uploaded on their website and released through the print media. The petitioner preferred an application under Section 151 C.P.C. on 19.10.2012, seeking direction that in view of the helplessness expressed by plaintiffs/opposite parties no. 2 to 5, the Senior Superintendent of Police/Cyber Cell of the State of U.P. be directed to block the posts and press releases publicizing the ex parte ad interim injunction order dated 22.09.2012 and also withdraw them from the websites of the opposite parties nos. 2 to 5 as well as other respective third party websites.
Further submission of learned counsel for the petitioner is that hearing of the said applications of the petitioner took place on several dates and ultimately order was reserved and thereafter learned District and Session Judge, Lucknow passed a cryptic order dated 23.10.2012 and failed to exercise the jurisdiction vested in him and has erred in not passing an innocuous order, so as to give effect to the orders already passed by him on 03.10.2012. Learned District Judge has not taken into consideration the stand of the petitioner; and little realizing that the suit itself was hopelessly time barred; and the purpose of filing the suit was not at all bonafide but was for the purposes of making adverse publicity in the electronic as well as print media, so as to cause deliberate and calculated harm to the petitioner. It is also submitted that disposal of all the applications on the premise that while deciding the issue regarding the disobedience of the orders passed by the learned Court below, the merit of the application for injunction and the Suit would have to be decided, is per se misplaced and is unsustainable. It is emphasized that by virtue of the provisions contained in Section 52 (q) (iv) and proviso to Section 55 of the Copyright Act, 1957, continuance of ex parte ad interim injunction dated 22.09.2012 is per se bad and is unsustainable being without authority of law. Learned counsel for the petitioner submitted that order dated 23.10.2012 passed by the learned District Judge, Lucknow is unjust, illegal, without application of mind and in derogation to the jurisdiction vested in him and as such the same is liable to be quashed.
It has also been submitted by learned counsel for the petitioner that no explanation whatsoever was given as to why there has been a deliberate violation of the directions dated 03.10.2012 issued by learned District & Session Judge, Lucknow. It is settled position of law that every court is possessed of the power to exercise inherent jurisdiction in the interest of justice. It is also pointed out that for grant of injunction under Order 39 Rule 1 and 2 of the C.P.C., it has consistently been held by Hon'ble Apex Court and various High Courts that upon prima facie case alone being made out, an injunction is not to be granted rather irreparable loss has also to be taken into consideration.
Learned counsel for the petitioner in support of his submission placed reliance on the judgments reported in 1995 (6) SCC 742, Moolchand and others vs. Fatima Sultana Begun and others, 1996 (5) SCC 550, Indian Bank vs. Satyam Fibres (India) Pvt. Ltd., 2007 (11) SCC 374, All Bengal Excise Licensees' Association vs. Raghabendra Singh and others, 2007 (15) SCC 218, Palitana Sugar Mills Pvt. Ltd. and another vs. Vilasiniben Ramachandran and others and the judgment of Hon'ble Supreme Court delivered in Civil Appeal No.9813 of 2011, dated 18.10.2011, Sahara India Real Estate Corporation Ltd. vs. Securities Exchange Board of India, and submitted that wherein violation of a stay order or injunction against a party, something has been done in disobedience, it will be the duty of the court as a policy to set the wrong right and not allow the perpetuation of the wrong doing, as inherent powers are powers which are resident in all courts, especially of superior jurisdiction and these powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. It is also submitted that civil courts have powers under Section 151 PC.P.C. to pass order prohibiting the abuse of the process of court. As learned Judge failed to appreciate the grievance of the petitioner, therefore, petitioner is constrained to approach this Court by means of present writ petition.
Shri, J.N. Mathur, Senior Advocate assisted by Shri Sudeep Seth, learned counsel for opposite parties no. 2 to 5 submitted that the present writ petition is not maintainable as the petitioner has statutory alternative remedy of filing Civil Revision under Section 115 of the Code of Civil Procedure, 1908, against the order dated 23.10.2012 passed the learned District Judge, Lucknow in Regular Suit No. 134 of 2012 (Eastern Book Company Vs. Reed Elsevier India Ltd.). In the order dated 23.10.2012, it has been mentioned by the learned District Judge, Lucknow that if the Misc. Applications preferred by the petitioner/defendant are disposed of finally then it would affect the final decision of the Regular Suit and would also affect the disposal of application for temporary injunction. It is pointed out that opposite party no. 6, Cyber Wing of State Government through Senior Superintendent of Police, Lucknow was not arrayed as a party in the Suit, hence, the opposite party no. 6 ought to be deleted from the array of opposite parties in the present writ petition.
It is further submitted that petitioner/defendant did not file any application under Order 39 Rule 4 C.P.C. for vacation of order of injunction and has not denied infringement of the copyright of the plaintiffs/answering opposite parties in their literary work titled "Supreme Court Cases" (SCC). It has not been pleaded by the petitioner/defendant in the trial court about the suit being time barred and any such assertion in the present writ petition is not liable to be considered by this Hon'ble Court. It is also submitted that petitioner/defendant filed an application dated 03.10.2012 supported with an affidavit dated 02.10.2012 (Annexure no. 4 to the writ petition), in which petitioner/defendant prayed for four reliefs and the relief no. (a) and (c) were not granted by the learned District Judge, Lucknow in the order dated 03.10.2012. The petitioner sought relief (a) directing the plaintiffs to immediately withdraw press release from the website as well as face-book home page and relief (c) directing the plaintiffs to publish an apology of giving negative publicity of the injunction order dated 22.09.2012 in the media in breach of Supreme Court decision in the matter of Sahara India Real Estate Corporation Ltd. Vs. Securities Exchange Board of India.
Shri J.N. Mathur, learned Senior Advocate also submitted that answering opposite parties/plaintiffs had simply released the contents of the order of interim injunction dated 22.09.2012 and Section 4 of the Contempt of Courts Act, 1971 provides that subject to the provisions contained in Section 7, a person shall not be guilty of contempt of Court for publishing a fair and accurate report of judicial proceeding or any stage thereof. Section 7 is not applicable in the present case. Hence, a press release of the contents of order of interim injunction by the answering opposite parties is not prohibited under any law nor it flouts the provisions of Contempt of Courts Act, 1971. On the other hand, publishing the fair and accurate report of judicial proceeding or any stage thereof is protected under Section 4 of the Contempt of Courts Act, 1971. It is also submitted that vide order dated 03.10.2012, the learned District Judge, Lucknow directed the counsel for the plaintiffs to instruct his clients not to make any publication of order of injunction in the print and electronic media till the next date. In difference of the order passed by the learned District Judge, Lucknow, the plaintiffs/answering opposite parties have not made any further publication with new material in print and electronic media.
Learned counsel for opposite parties no. 2 to 5 further submitted that order dated 23.10.2012 (Annexure no. 1 to the writ petition) was passed by the learned District Judge, Lucknow, aptly observing and recording a finding that on the basis of the case laws relied upon by counsel for the parties and reference made to various provisions of the copyright Act, if any order was passed for disposal of Misc. Applications preferred by the defendants, it would tantamount to disposal of application for interim injunction on merits. Since any order so passed would have affected the disposal of application for temporary injunction and would also have affected the final decision of the regular suit, as such, the learned District Judge, Lucknow, found it fit to permit the counsel for both the parties to argue on final disposal of application for temporary injunction. The Misc. Applications were disposed of accordingly and 25.10.2012 was fixed for hearing on application for temporary injunction. On 25.10.2012, an adjourned was sought on behalf of defendants and matter was fixed for 26.10.2012 for hearing. On 26.10.2012, learned counsel for defendants sought time to file detailed objection against application for temporary injunction and submitted that since detailed objections could not be filed, hence, hearing on application for temporary injunction is not possible, accordingly, with the consent of counsel for the parties, a time frame was fixed for exchange of objections and rejoinder affidavit and the next date has been fixed as 27.11.2012 for hearing on application for temporary injunction.
Shri Jaideep Narain Mathur, learned Senior Advocate for the opposite parties no. 2 to 5 in support of his submission placed reliance upon Full Bench judgment of this Court reported in AIR 1970 Allahabad 376, Zila Parishad, Budaun and others vs. Brahma Rishi Sharma and submitted that the provisions of Order 39 do not classify orders of injunction into (1) an ex-parte order of injunction and (2) a final order of injunction. Courts have coined this dichotomy for the sake of convenience of speech and expressions. In the eye of law an 'ex-parte' order is as much an order under Rule 1 or 2 as a 'final' order.
It is also submitted by Shri Mathur that Hon'ble Supreme Court in the case of Sahara India Real Estate Corporation Ltd. vs. Securities Exchange Board of India (Supra), has held that superior court i.e. High Court and Supreme Court, who on examination if found that if the administration of justice is prejudiced, can prohibit temporarily, statement being made in the media in a given case pending in the Supreme Court, or in the High Court or even in the subordinate court and in the present case the opposite parties no. 2 to 5 have not violated the order dated 03.10.2012 as no publication was made after the stay, whereas there was no order by trial court for removal of publication already made regarding grant of temporary injunction.
It is also submitted by Shri Mathur that on one hand the petitioner is aggrieved by publication of interim injunction in a Print & Electronic Media and on the other hand petitioner got published the order dated 03.10.2012 on 11.11.2012, as is evident from page 75 of the writ petition. It is also submitted that present proceedings are not the contempt proceedings and the case laws relied upon by the learned counsel for the petitioner are not relevant for the purposes of present controversy. It is also submitted that it is always open for the petitioner to move appropriate application under the provisions of Order 39 Rule 2-A of C.P.C., if petitioners think that the answering respondents have violated the orders in any manner and in this background Sri J. N. Mathur, Senior Advocate vehemently submitted that in view of the above facts, circumstances and legal proposition, the present writ petition is not maintainable and is liable to be dismissed in limine.
I have examined the submissions of the learned counsels for parties and gone through the record.
"Bentham" noted jurist on the open court system observed that:
"in the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial in the sense that the security of all securities is publicity."
It is well settled that in general, all cases brought before the Courts, whether civil, criminal, or others, must be heard in open Court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two options on the broad proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public administration to the court-room.
Our judicial system works in an open and transparent manner and there is no restrain either on media or man of public to attend the proceedings of the Court. Even orders of day to day proceedings are now available on the web site of the respective courts and any person can get the information about the status of the case, proceedings as well as day to day orders of the Courts. It is without saying that the orders and the judgments of the court are the public documents. However, principle of open justice is not absolute and there can be exception in the interest of justice.
The nine Judges Bench of the Hon'ble Apex Court in the case of Naresh Shridhar Mirajkar vs. State of Maharastra, reported in AIR 1967 SC 1, while examining the power of Court to conduct the court proceedings in camera under its inherent powers and also to incidentally prohibit publication of the Court proceedings or evidence of the cases outside the Court by the Media, held that all court are having inherent powers. Supreme Court, High Court and Civil Court can issue prior restraint orders or proceedings, prohibitory in exceptional circumstances temporarily prohibiting publication of court proceedings to be made in the media and that such powers do not violate Article 19(1)(a).
The question of prior restraint arose before the Hon'ble Apex Court in the matter of Reliance Petro Chemicals Ltd. vs. Proprietors of Indian Express Newspapers, Bombay (P) Ltd., reported AIR 1989 SC 190 in which a test was formulated to the effect that any preventive injunction against the press must be "based on reasonable grounds for keeping the administration of justice unimpaired" and that, there must be reasonable ground to believe that the danger apprehended is real and imminent. Hon'ble Apex Court went by the doctrine propended by Holmes J. of " Clear and Present Danger" and treated the said doctrine as the basis of balance of convenience test.
The position is absolutely clear that every court is having inherent power to restrain the publication of the proceedings for a temporary period, if publication of the same effects the interest of a party and administration of justice of a particular case. However, while passing such orders of postponement, in the absence of any other alternative measures, such as change of venue or postponement of trial, satisfy the requirement of justification under Article 19(2) and the same also helps the courts to balance conflicting societal interest of right to know vis a vis another societal interest in fair administration of justice.
Even section 4 of the Contempt of Courts Act, 1971 deals with the report of a judicial proceeding and it provides that a person will not be treated as guilty of contempt if he has published such a report which is fair and accurate. The provision of Section 4 are subject to the provisions of section 7 of the Act which deals with the publication of information relating to proceedings in Chambers.
The Hon'ble Apex Court In Sahara India Real Estate Corporation Ltd. (supra) while examining the issue of postponement of publication, its nature and object, pleased to observe that courts are duty bound under inherent jurisdiction, subject to parameters mentioned in judgment, to protect the presumption of innocence which is now recognised as a human right under Article 21, subject to the applicant proving displacement of such a presumption in appropriate proceedings as well as to satisfy the test of reasonableness. The para 43 of the judgment which lays down the principle reads as under:
"In the light of law annunciated herein above, anyone, be he an accused or an aggrieved person, who genuinely apprehends on the basis of the contents of the publication and its effect, an infringement of his/her rights under Article 21 to a fair trial and all that it comprehends, would be entitled to approach an appropriate writ court and seek an order of postponement of the offending publication/ broadcast or postponement of reporting of certain phases of the trial including identity of the victim or the witness or the complainant and that the court may grant such preventive relief, on a balancing of the right to a fair trial and Article 19 (1(a) rights, bearing in mind the above mentioned principles of necessity and proportionality and keeping in mind that such orders of postponement should be for short duration and should be applied only in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. Such neutralizing device (balancing test) would not be an unreasonable restriction and on the contrary would fell within the proper constitutional framework."
After examining the legal position, now this Court proceed to examine the impugned order dated 23.10.2012 and submissions of respective parties.
The present writ petition has been filed by the petitioners being aggrieved against the order of the District Judge, Lucknow dated 23.10.2012, passed in Regular Suit No. 134 of 2012, Eastern Book Company vs. Reed Elsevier India Private Ltd., filed under the Copyright Act, 1957, by which application of the petitioner dated 16.10.2012 under section 151 C.P.C. for seeking immediate action against the answering opposite parties/plaintiffs for violating the Court's order dated 3rd October, 2012, as well as application for direction to the Senior Superintendent of Police/ Cyber Squad dated 19.10.2012 were disposed of with the observations that on the basis of case laws relied by learned counsel for the parties and the references made to the various provisions of Copyright Act, 1957, if any order is passed for disposal of the misc. application referred by the defendants, it would definitely effect the disposal of the application for temporary injunction as well as merit of the suit and accordingly, learned counsel for parties were directed to argue on final disposal of the application for temporary injunction and fixed the date 25.10.2012 for hearing on the application for temporary injunction.
Petitioner has also prayed for a writ, order or direction in the nature of mandamus commanding the District Judge, Lucknow to not to extend the exparte injunction order dated 22.9.2012 and to command the opposite parties no. 2 to 5 not to make any publicity in any manner of the order dated 22.9.2012. Petitioner further prayed that Cyber Wing of State Government through Senior Superintendent of Police, Lucknow (Opposite Party No. 6) be directed to block and remove all the material posted on the website of the opposite parties no. 2 to 5 and also other websites which have borrowed the said material and are displaying it on the web.
From perusal of the record, it is evident that the answering opposite parties no. 2 to 5 filed a regular suit bearing no. 134 of 2012, Eastern Book Company vs. Reed Elsevier India Private Ltd. under the Copyright Act, 1957, against the petitioner alongwith application under Order 39 Rule 1 & 2, C.P.C. and the learned District Judge after examining the grievance of the answering respondents while issuing notice to the petitioner/defendant, passed an interim injunction restraining the petitioner/defendants, their assigns and business franchisees, licensees, distributors, agents etc. from infringing the copyrights in the literary work of the plaintiffs in their law report 'Supreme Court Cases' (SCC) and from selling, distributing or otherwise making available to the public, either as CD Roms or through their websites on the Internet or by any other means, copies of its law reports and data bases which infringe the copyrights of the plaintiffs in and to the law reports titled Supreme Court Cases (SCC).
It appears that the said interim injunction order dated 22.9.2012 was displayed on home page of the web sites as well as in the magazine, namely, Practical Lawyer of the opposite parties no. 2 to 5. The other agencies also reported the interim injunction order granted by the learned District Judge on the basis of press notes circulated by the answering opposite parties no. 2 to 5, in the electronic and print media. The petitioner feeling aggrieved against the publication and publicity of interim injunction dated 22.9.2012 in the electronic and print media moved an application on 3.10.2012 on the ground that the same is causing a serious dent to their business and reputation, with the following prayer:
'(a) The plaintiffs jointly and severally be directed to immediately withdraw the said press releases from their websites as well as their Facebook home page.
(b) The Plaintiffs jointly and severally be restrained from further publicizing the ex parte ad-interim injunction order dated 22nd September, 2012 in any print or electronic media, including the internet or otherwise in any other manner.
(c) The Plaintiffs jointly and severally be ordered and directed to publish by way of an apology that they have wrongfully given negative publicity of the ex-parte ad-interim injunction Order dated 22nd September, 2012 in the media and on the internet or in any manner whatsoever, as the same is in breach of the Supreme Court decision in the matter of Sahara India Real Estate Corporation Ltd.vs. SEBI, order dated 11.9.2012.
(d) The said ex-party ad-interim injunction Order dated 22.9.2012 be not extended in favour of the Plaintiffs and be vacated with immediate effect, as the balance of convenience is clearly in favour of the defendants, who would otherwise be severely prejudiced and suffer grave and irreperable injury to their goodwill and reputation,'
Learned District Judge by means of order dated 3.10.2012 directed Sri Sudeep Seth, learned counsel for the answering opposite parties/ plaintiffs to instruct his client, not to make any publication of the temporary injunction till the date fixed in print or electronic media.
The answering respondents contested the said application by filing reply and made averments that the contents of the order of injunction has been released prior to the passing of the order dated 3.10.2012 and submitted that only the courts of record i.e. High Court and Supreme Court have the power to postpone publicity in appropriate cases as preventive measure without disturbing its contents and an aggrieved person apprehending the content of the publication to infringe his right to a fair trial would be entitled to approach the writ court and seek an order of postponement of the offending publication or postponement of reporting of certain phases of trial and writ court may grant such preventive relief on balancing of the right to a fair trial and bearing in mind the principles of necessity and proportionality.
The petitioner-defendants moved another application dated 6.10.2012 for taking immediate action against the plaintiff under the provisions of Section 151 of Code of Civil Procedure , for violating the Court's order dated 03.10.2012.
The answering opposite parties no. 2 to 5/ plaintiffs while opposing the application, have taken stand that no further publication with new material was being made by the plaintiffs in the print and electronic media, but the question of removal of publication already made in the print and electronic media did not arise, as there is no direction in the order dated 03.10.2012 of the court, to remove the earlier press release from the print and electronic media and they have not altered the language used in temporary injunction. The temporary injunction was issued against the defendants, their assigns and business franchisees, licensees, distributors, agents etc. and publication of the order of injunction was meant for bringing it to the notice of the business franchisees, licensees, distributors, agents etc. also.
The petitioner thereafter moved another application on 19.10.2012 under Section 151 C.P.C. for direction to the Senior Superintendent of Police, Lucknow / Cyber Cell/Cyber Squad on the ground that the answering opposite parties no. 2 to 5/ plaintiffs in their counter affidavit to the supplementary affidavit dated 15.10.2012 stated that further publication with new material has not been made in the print and electronic media, but the question of removal of publication already made does not arise and plaintiffs cannot remove the print and press release on the web site & Face Book Home Page of other entities, as it was not within their domain and sought a direction to block the posts and press releases publicizing the ex-parte ad-interim injunction order dated 22.9.2012 and also withdraw them from the websites of the plaintiffs and also other respective third party websites.
Sri J. N. Mathur, learned counsel for answering opposite parties no. 2 to 5 submitted that after passing of the order dated 3.10.2012 by the learned District & Sessions Judge, Lucknow on the application of the petitioner/defendants no matter was published by them either in print or in electronic media but it is the petitioner himself, who got published the order dated 3.10.2012 on the website of Legally India on 11.10.2012 with the Heading " Case report war continues: Lexis Nexis injuncts EBC from publicizing own injunction" The report further reveals that on 3rd October, Lexis Nexis obtained an injunction from the Lucknow District Court that stated, according to a translation of the Hindi order supplied to Legally India by the Company. The publication also indicates that the answering respondents declined to make any comments on the same as is evident from page 75 of the writ petition.
In this background, Sri J. N. Mathur submitted that on the one hand the petitioner wants to restrain the answering opposite parties from making any publication of the temporary injunction granted by the trial court and on other hand, petitioner itself got published the order dated 3.10.2012 and it is not open for the petitioner to approbate and reprobate simultaneously.
This Court also examine the application dated 03.10.2012 (Annexure no.4 to the writ petition), by which the petitioner/ defendant sought direction for restraining the plaintiffs/ answering opposite parties no.2 to 5 from negatively publishing the order dated 22.09.2012 and refusal of the extension of the said order, as well as application dated 06.10.2012. ((Annexure no.14 to the writ petition), by which prayer has been made for taking immediate action against the plaintiffs/ answering opposite parties no. 2 to 5 under the provisions of Section 151 of Code of Civil Procedure, 1908 for violating the court's order dated 03.10.2012 and application dated 19.10.2012 (Annexure no.12 to the writ petition) seeking directions for Senior Superintendent of Police, Lucknow/ Cyber Cell/ Cyber Squad.
In none of the applications and the affidavits filed in support thereof, the petitioner has stated, in what manner the publication of interim order dated 22.09.2012 is affecting the fair trial and administration of justice, the only submission of learned counsel for the petitioner is that on account of publication of interim injunction is causing a serious dent to their business, reputation and goodwill. The learned District Judge by means of order dated 03.10.2012 directed the learned counsel for the plaintiffs/ answering opposite parties no.2 to 5 not to make publication of the order of interim injunction in an electronic and print media till the date fixed and admittedly no order for removal of the said publication was passed by the learned District Judge.
Learned counsel for the petitioner failed to demonstrate any publication after passing of the order dated 03.10.2012 except the material posted earlier on the home page of the website of opposite parties no. 2 to 5, which is still existing. It is very strange that on one hand the petitioner is aggrieved on account of publication of interim injunction by the answering opposite parties no.2 to 5 on the home page of their website as well in their Magazine and other agencies, and on the other hand, the petitioner himself got the order dated 03.10.2012 published on the website of 'Legally India', as is evident from perusal of page 75 of the paper book, which clearly indicates that the translation of Hindi order dated 03.10.2012 was supplied by the company (petitioner) to the 'Legally India'. The report further indicates that on the other hand the answering opposite party no.3 declined to make any comments on the same. In this manner, it is not open for the petitioner to approbate and reprobate simultaneously.
Now, the examination of impugned order 23.10.2012 reveals that learned District Judge while disposing of the concerned applications of the petitioner observed that on the basis of case laws relied by the learned counsel for parties and reference made to the various provisions of Copyright Act, 1957, if any order is passed, the same will definitely effect the disposal of the application for temporary injunction as well as merit of the suit and accordingly directed the learned counsel for the parties to advance their arguments on the application for temporary injunction and fixed date 25.10.2012 for the final disposal of the application for interim direction, but the petitioner sought adjournment for 26.10.2012. On 26.10.2012, Shri Prashant Chandra, learned Senior Advocate for the petitioner/defendant submitted that hearing is not possible, as he could not file detailed objections against the application for temporary injunction and with the consent of the learned counsel for the parties while fixing 27.11.2012 for hearing on the application for temporary injunction, time was granted for filing detailed objection to the application for temporary injunction till 09.11.2012 and thereafter ten days for rejoinder affidavit.
Learned counsel for the petitioner in support of his submission mainly cited judgments on the issue of inherent power of the Court as well as relating to the contempt matters.
On examination, none of the judgments cited by the learned counsel for the petitioner help the petitioner in any manner in the facts and circumstances of the instant case.
On due consideration, this Court does not find any illegality or infirmity in the impugned order dated 23.10.2012 of the learned District Judge. Learned counsel for the petitioner failed to demonstrate, in what manner the publication of the order will effect the fair trial of the suit or will prejudice the administration of justice.
No good ground has been made out before this Court for interference in the matter.
Accordingly, the writ petition lacks merit and is hereby dismissed.
Order Date :- 27.11.2012
Tanveer/ashok
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