Such an order could be issued only in rare cases, and for a limited period of time, the court said.
Mumbai: Calling the press "most powerful watchdog of society", the Bombay High Court on Wednesday quashed the trial court's order which barred journalists from reporting the proceedings of the high-profile Sohrabuddin Shaikh fake encounter case.
Justice Revati Mohite-Dere ruled that the special CBI court had overreached its powers by issuing the gag order, and said in reporting court proceedings, the press "serves the larger purpose of making such information available to the general public" which is entitled to it.
She agreed with the petitioners - a group of court reporters and a city-based journalists' union - that under the Code of Criminal Procedure, only high courts and the Supreme Court can issue such prohibitory orders, that too in rare cases and for a limited period of time.
Mere apprehension of the accused that media may sensationalise the proceedings was not a sufficient ground for banning reporting it, the high court said.
On November 29 last year, special CBI judge SJ Sharma had prohibited journalists from publishing the proceedings of the trial. Reporters may attend the proceedings, but cannot publish them, it said.
One of the accused, Rehman Abdul, had sought a gag order against media, claiming the case was sensitive as several senior police officials were named as accused, and that news reports would lead to "sensationalism" and threaten "national security".
Several other accused supported Abdul's plea.
Justice Mohite-Dere, however, held that the trial court should not have considered mere apprehension of sensationalism a sufficient ground to ban reporting of the proceedings.
Defence lawyers had also raised the issue of security of the accused as well as witnesses, and referred to alleged "misreporting" about the death of judge BH Loya when he was hearing the case.
"The arguments of the accused persons are just bare words. They have failed to present any legal provisions to back the trial court order," the high court said.
"The CrPC makes it clear that an open trial is a rule, and an exception can be made only on rare occasions. The words 'open courts' are significant since they affirm that the public is entitled to know whether the justice delivery system is adequate or not," she said.
"...justice must not only be done but it must also be seen to be done," the HC said.
The CBI had earlier refused to take a stand on the gag order, saying it was "neutral", and left the decision to the high court.
The high court went on to say in its ruling that the special court's prohibitory order breached the journalists' constitutional right of freedom of expression.
"The rights of the press are intrinsic with the constitutional right of freedom of expression. In reporting from an open trial, the press not only makes use of its own right, but serves the larger purpose of making such information available to general public. The press is the most powerful watchdog of the society," Justice Mohite-Dere said.
"The demands of a democratic society are that it must know what is happening in the country," the judge added.
Defence lawyers contended that as the Supreme Court has transferred to itself the petitions pending in the Bombay High Court on the death of judge Loya, the journalists' plea too should be transferred to the SC. The high court declined, saying these petitions were completely different.
Lawyers Abad Ponda, Mihir Desai and Abhinav Chandrachud, who appeared for journalists, had argued that the ban on reporting was illegal, and the trial had a "large element of public interest". People have the right to know what transpired during the trial, they said.
Currently, 23 accused are facing trial in the case. Gangster Sohrabuddin Shaikh, claimed to have terrorist links, was killed in an alleged fake encounter by the Gujarat and Rajasthan police. His wife Kauser Bi had mysteriously disappeared and was never found. She was suspected to have been killed by the police. Shaikh's associate Tulsi Prajapati, eye witness to the encounter, was also killed in another alleged fake police encounter later.
The CBI's charge sheet in 2010 named several police officers and BJP president Amit Shah, who at that time was the minister of state for home in Gujarat, as accused. The trial court later discharged several accused, including Shah and four IPS officers.
The CBI court has so far examined 40 witnesses, of whom 28 were declared hostile by the prosecution subsequently.