TaxTMI 
TaxTMI 
2010 (3) TMI 991
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....ssued by the State of Bihar at the behest of the High Court of Patna. The State of Bihar has established a Court of Judicial Magistrate 1st Class inside the District Jail, Siwan and directed that: (a) the Court of Judicial Magistrate 1st Class, Siwan shall now hold its sitting inside the District Jail Siwan for trial of cases pending against the appellant Md. Shahabuddin in the Court of Judicial Magistrate 1st Class; and (b) This notification shall come into force with effect from the 7th June, 2006. 5. The appellant is further aggrieved by another notification issued on the same day by which the court of the Additional District & Sessions Judge of Siwan Sessions Division was directed to now hold its sitting inside the District Jail, Siwan to try Sessions cases pending against the appellant Md. Shahabuddin. 6. Mr. Ram Jethmalani, learned senior counsel appearing for the appellant canvassed the following propositions of law; (a) That in pending criminal cases of which cognizance had been taken and even evidence had been recorded can only be shifted to another venue by the trial court after satisfying the conditions laid down in Section 9(6) of the Code. (b) That the High Court....
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....y with the High Court and the State Government has no say in the matter. 9. The power under Section 9(6) of the Code cannot be exercised for a particular individual or accused and if it has to be exercised for one individual, then according to the principle of audi alteram partem, he has to be given hearing. Admittedly, no such hearing was given to the accused in this case. 10. Mr. Jethmalani referred to Section 407 of the Code which reads as under: "407. Power of High Court to transfer cases and appeals.- (1) Whenever it is made to appear to the High Court- (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise; or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order- (i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offen....
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.... Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under section 197." 11. Mr. Jethmalani further submitted that power under Section 407 of the Code can be exercised after hearing all the concerned parties. He heavily relied on the judgment of this court in State of West Bengal v. Anwar Ali Sarkar & Another AIR 1952 SC 75 and particularly placed reliance on para 37 which reads as under: "37. Speedier trial of offences may be the reason and motive for the legislation but it does not amount either to a classification of offences or of cases. As pointed out by Chakravarti J. the necessity of a speedy trial is too vague and uncertain a criterion to form the basis of a valid and reasonable classification. In the words of Das Gupta J., it is too indefinite as there can hardly be any definite objective test to determine it. In my opinion, it is no classification at all in ....
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....could be distinguished from those who are outside the purview of the Special Act. The Act has left this matter entirely to the unregulated discretion of the provincial government. It has the power to pick out a case of a person similarly situate and hand it over to the special tribunal and leave the case of the other person in the same circumstance to be tried by the procedure laid down in the Code. The State Government is authorized, if it so chooses, to hand over an ordinary case of simple hurt to the special tribunal, leaving the case of dacoity with murder to be tried in the ordinary way. It is open under this Act for the provincial government to direct that a case of dacoity with firearms and accompanied by murder, where the persons killed are Europeans, be tried by the Special Court, while exactly similar cases where the persons killed are Indians may be tried under the procedure of the Code. 14. According to the learned senior counsel, the appellant cannot be denied the trial in an open court where there is presence of free media. He has also placed reliance on Cora Lillian McPherson v. Oran Leo McPherson AIR 1936 Privy Council 246 wherein it is held that "Every Court of Ju....
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....e widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value. 20. (Pages 985-986) When a shocking crime occurs, a community reaction of outrage and public protest often follows. [See H. Weihofen, The Urge to Punish 130-131 (1956)]. Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. Without an awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated, and may manifest themselves in some form of vengeful "self-help," as indeed they did regularly in the activities of vigilante "committees" on our frontiers. "The accusation and conviction or acquittal, as much perhaps as the execution of punishment, operate to restore the imbalance which was created by the offense or public charge, to reaffirm the temporarily lost feeling of security and, perhaps, to satisfy that latent 'urge to punish.'" Mueller, Problems Posed by Publicity to Crime and Criminal Proceedings, 110 U Pa L Rev 1, 6 (1961)." 21. (Page 987) From this unbroken, uncontradicted his....
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....ntial, therefore, if trial adjudication is to achieve the objective of maintaining public confidence in the administration of justice. [See Gannett, supra at 428-429, 61 L Ed 2d 608, 99 S Ct 2898 (Blackmum, J., concurring and dissenting). 26. (Page 1003) Shrewd legal observers have averred that: "open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth than the private and secret examination . . . where a witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal." 3 Blackstone (supra) at *373. 27. Mr. Jethmalani also submitted that Kehar Singh & Others v State (Delhi Administration) (1988) 3 SCC 609 has no relevance in the present case. In the said case, the shifting of the trial in jail was caused because of extraordinary situation which happened after assassination of Mrs. Indira Gandhi and that cannot be compared with the present situation. He placed reliance on the following paragraph: '204. In Naresh Shridhar Miraj....
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....g, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be 'cribbed, cabined and confined' within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevan....
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.... the doctrine of natural justice, there can be no distinction between a quasijudicial function and an administrative function for this purpose. The aim of both administrative inquiry as well as quasijudicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. On what principle can distinction be made between one and the other? Can it be said that the requirement of 'fair-play in actions' is any the less in an administrative inquiry than in a quasijudicial one? Sometimes an unjust decision in an administrative inquiry may have far more serious consequences than a decision in a quasi-judicial inquiry and hence the rules of natural justice must apply equally in an administrative inquiry which entails civil consequences." (emphasis supplied) 31. Mr. Jethmalani placed reliance on Delhi Transport Corporation v. D.T.C. Mazdoor Congress & Others 1991 (Supp) 1 SCC 600 wherein vide paras 166, 167 and 168, this Court observed thus: &nb....
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....asonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice." 33. Learned counsel for the appellant referred to the case of Krishan Lal v. State of J&K (1994) 4 SCC 422, wherein vide para 28 the court observed thus: "28. The aforesaid, however, is not sufficient to demand....
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....rt Sd/- Registrar General" 36. Mr. Kumar, learned senior counsel further submitted that the two notifications were subsequently issued by the Government of Bihar because the premises were not under the control of the High Court. Where the premises are not under the control of the High Court, the notification has also to be issued by the State Government. The establishment of the court can be done by the State Government in consultation with the High Court. He referred to the notification dated 20.5.2006 and notifications corresponding to S.O. Nos.80 and 82 both dated 7.6.2006. The notifications establishing the court were issued in consonance with the scheme of the Act. 37. Mr. Ranjit Kumar has drawn our attention to the counter affidavit filed by the State in extenso. In the said counter affidavit filed by the State it is mentioned that the reign of terror created by the appellant and his 'private army' in the last two decades is beyond imagination. Some of the notorious crimes committed by the appellant and his gang of criminals and the extent to which he has been interfering with the administration of justice, has been enumerated in the counter affidavit. It would be pertine....
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....investigating officers turned hostile due to fear created by the petitioner. Presently, this case is being tried in the Court at Siwan Jail, where the father and mother of the deceased have filed their affidavits stating that they were coerced and threatened by the petitioner and his gang, therefore, they could not depose against him. (f) That the distance between the District Court Siwan and the Court at Siwan Jail is about one kilometer. From the jail gate to District Court there is one way which passes through narrow bridge over a river. This area is densely populated and is a market area of the town. Whenever, the accused was produced in the District Court in the past, there used to be large gathering of criminals. It was always very difficult for the District Administration to control the situation. During the trial, thousands of criminals and armed men used to enter District Court premises and also inside the Court Room in support of the accused and created an atmosphere of terror in the minds of the prosecution witnesses. Consequently, no one dared to depose truthfully against the accused which led to his acquittal in more than 16 cases, one after the other. (g) That prior....
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....mitted that Notification No. 184A dated 20.5.2006 was issued by the Patna High Court in exercise of its power conferred under section 9(6) of the Code. Mr. Kumar further submitted that Section 9(6) is in two parts. First part pertains to the statutory power of the High Court and the Second part pertains to the judicial power of the Sessions Court. Notification No.184A dt.20.05.2006 pertains to the first part. 41. According to the learned counsel for the State, the audi alteram partem rule would not be applicable to the first part but the second part. Therefore, the challenge by the appellant on the ground of breach of the audi alteram partem rule is unsustainable. 42. Mr. Kumar further submitted that immediately after the notification on 20.5.2006, on the same day, the High Court through its Registrar General wrote a letter asking for the State of Bihar to publish the notification in the official gazette. Delay in the publication was not at the instance of the High Court. The appellant could not assail the notification of the High Court on this ground as no such plea or ground was raised either in the High Court or in this appeal. 43. Mr. Kumar also contended that the court in....
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....hat during the course of the hearing, the appellant was permitted inspection of the High Court records. Based on it, the appellant has set out a new case during the course of arguments in rejoinder. 49. According to the learned counsel for the State, the submission of the appellant that there was variance between the Notification No. 184A in English and the Notification No.184 Ni in Hindi is wholly untenable. (This has been explained both by the State and the High Court to mean 'appointment' in English and 'niyukti' in Hindi.) 50. Learned counsel for the State further submitted that the contention of the appellant that absence of a serial order in the publication of 16.8.2006 makes it suspicious is also unsustainable. 51. Mr. Kumar also contended that the State Government issued notifications for establishing courts in jail only after issuance of the Notification No. 184A dated 20.5.2006 by the High Court is fully proved from the following correspondence: a. Letter No.5137 dated 20th May 2006 from the Registrar General to the Secretary, Department of Personnel and Administrative Reforms, State of Bihar, requesting that the State Government be moved to issue the necessary notif....
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....te (copy of this letter was also submitted by the Counsel for appellant in the High Court during the course of hearing on the last day). j. The Patna High Court notification dated 20th May, 2006 issued under Section 9(6) of the Code was forwarded by the Registrar General of the High Court vide letter Nos.5146-49 of even date to the District and Sessions Judge/The Chief Judicial Magistrate, Siwan/Secretary to the Government of Bihar (Law), Judicial Department, the Secretary, Department of Personnel and Administrative Reforms for information and necessary action. 52. It will, thus, be seen from the above chronology that after the High Court took the decision to establish a Court of Additional District and Sessions Judge and of the Judicial Magistrate First Class in the Siwan District Jail, necessary correspondence/instruments/requests were sent by the High Court for implementation of the decision of the High Court in seriatim from letter Sl.Nos.5137-5138, 5139-5140, 5141-5142, 5143-5144, 5145 and 5146-5149. This full series of correspondence to give effect to the decision of the High Court was brought into operation which ultimately culminated in the two Notifications issued by the....
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....ad because of non-gazetting thereof, prior to the State gazette notification inasmuch as the notification of the High Court having been issued on 16th August, 2006, it is stated that the delay, if any, would only amount to an irregularity and nothing more. Even for the said irregularity the appellant would have to lay foundation in the pleadings and prove to the court that there has been a failure of justice in his case. 56. In fact the appellant himself admitted in the summary of submissions in rejoinder that new points could be raised 'so long as they did not cause surprise to the other side' or at another place 'new point must be capable of being disposed off on the existing record or additional record, the aforesaid is not open to any challenge'. The learned counsel for the State-respondent submitted that the argument definitely raised surprise to the State Government because had such an argument been raised, both the State and High Court would have filed counter-affidavits. It is for the appellant to prove his allegations. He, having not even pleaded, cannot be allowed to raise new point at this stage. 57. A notification empowering a Sessions Court to sit and hold a trial in....
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....e of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial." 60. Mr. Kumar further submitted that when the notification of 20th May, 2006 was issued by the High Court, it is expected that the judges of the High Court would take care of all aspects including the interest of the accused. According to him, section 9(6) of the Code is in two parts. The first part is when the notification is issued by the High Court, then it is presumed that they would take into consideration the interests of the parties including the accused before issuing the notification. In the second part, the Court of Session may decide to hold its sitting at any place in the session. They can do so only after hearing the parties and that order of the Court of Session is a judicial order and order issued by the High Court is an administrative order. 61. He submitted that the Jail is an open court as long as there are no restri....
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....st be tried in open court. 64. Mr. Kumar contended that all the questions which have been raised by Mr. Ram Jethmalani were raised before this Court in the case of Kehar Singh's case (supra). This Court has answered to all those questions in the said case against the appellant herein. In this case, a three Judge Bench of this Court has given three separate judgments. Reliance has been particularly placed on paragraphs 21 to 24. On interpretation of section 9(6) of the Code, Oza, J. in paras 21 and 22 at pages 635 to 636 observed as under: "21. ................ On the basis of this language one thing is clear that so far as the High Court is concerned it has the jurisdiction to specify the place or places where ordinarily a Court of Sessions may sit within the division. So far as any particular case is to be taken at a place other than the normal place of sitting it is only permissible under the second part of sub-clause with the consent of parties and that decision has to be taken by the trial court itself. It appears that seeing the difficulty the Uttar Pradesh amended the provision further by adding a pro....
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....e Court and on the basis of these circumstances and the situation as it was in Tihar Jail it was contended that the trial was not public and open and therefore on this ground the trial vitiates. It was also contended that provisions contained in Section 327 Cr.P.C. clearly provides that a trial in a criminal case has to be public and open except if any part of the proceedings for some special reasons to be recorded by the trial court, could be in camera. It was contended that the High Court while exercising jurisdiction. under Section 9(6) notified the place of trial as Tihar Jail, it indirectly did what the trial court could have done in respect of particular, part of the proceedings and the, High. Court has no jurisdiction under Section 327 to order trial to be held in camera or private and in fact as the trial was shifted to Tihar Jail it ceased to be open and public trial. Learned counsel on this part of the contention referred to decisions from American Supreme Court and also from House of Lords. In fact, the argument advanced has been on the basis of the American decisions where the concept of open trial has developed in due course of time whereas so far as India is concerned....
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....alt with this aspect of the case. On interpretation of Section 327 Cr.P.C., the Court observed as under: ".......It is pertinent of mention that Section 327 of the Cr.P.C. provides that any place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court, to which the public generally may have access, so far as the same can conveniently contain them. The place of trial in Tihar Jail according to this provision is to be deemed to be an open court as the access of the public to it was not prohibited. Moreover, it has been submitted on behalf of the prosecution that there is nothing to show that the friends and relations of the accused or any other member of the public was prevented from having access to the place where trial was held. On the other hand, it has been stated that permission was granted to the friends and relations of the accused as well as to outsiders who wanted to have access to the court to see the proceedings subject, of course, to jail regulations. Section 2(p) Criminal Procedure Code defines places as including a house, building, tent, vehic....
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....ation of justice, it is a means, not an end. It is the fair administration of justice which is the end of judicial process, and so, if ever a real conflict, arises between fair administration of justice itself on the one hand, and public trial on the other, inevitably, public trial may have to be regulated or controlled in the interest of administration of justice." 70. In this case, Shetty, J. in his concurring judgment also elaborately dealt with this aspect of the matter and observed as under: "The right of an accused to have a public trial in our country has been expressly provided in the code, and I will have an occasion to consider that question a little later. The Sixth Amendment to the United States Constitution provides "In all criminal prosecution, the accused shall enjoy the right to a speedy and public trial by an impartial jury..." No such right has been guaranteed to the accused under our Constitution." 71. The Court observed that "the trial in jail is not an innovation. It has been there before we were born". The validity of the trial with reference to Section 352 of the Code of 1898 since re-enacted as Section 327(1) has been the su....
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....or for other valid reasons. 78. Mr. Pravin Parekh, the learned senior counsel appearing for the High Court submitted that the Law Secretary, Government of Bihar vide letter No. 1-C(R) dated 7.5.2006 wrote to the Registrar General of the Patna High Court that the Patna High Court may kindly be moved for trial of cases pending against Md. Shahabuddin in Siwan Jail by constituting two special courts, one each of Additional Sessions Judge and another of Judicial Magistrate 1st Class. 79. Mr. Parekh pointed out that the Superintendent of Police, Siwan vide his letter No. 1493 dated 8.5.2006 wrote to the District Magistrate that more than forty cases were pending against Mohd. Shahabuddin and directions had been received from the Patna High Court to dispose of those cases expeditiously. It is stated that there was a serious danger to public peace during the presence of the appellant in the court premises. His supporters and other co-criminals could attack the witnesses. Even the possibility of threat and attack on the public prosecutor/district prosecuting officer could not be ruled out. Besides this, since he was wanted in many cases, therefore, other criminal groups could also attac....
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....trial of the appellant Md. Shahabuddin inside the District Jail, Siwan. 82. Accordingly, a note requesting for placing the aforesaid matter for consideration of the Standing Committee was put up by the Registrar General on 9.5.2006 to the Chief Justice of Patna High Court by enclosing both the letters of Superintendent of Police, Siwan and the District Magistrate dated 8.5.06 along with the Law Secretary's letter dated 9.5.06 by enclosing three precedents in respect of designation of the Special Courts for the trial of: (a) Accused person relating to the cases of Lakshmanpur (Bathe), Jerhanabad carnage; (b) Cases relating to Narainpur (Jehanabad) massacre; (c) Sessions trial No. 115 of 2006 (State vs. Anandmohan & Ors.) relating to murder of G. Krishnaiyyah, the then District Magistrate, Gopalganj and for earmarking court of the Additional District & Sessions Judge. 83. Mr. Parekh further submitted that the Chief Justice of Patna High Court directed that the matter be put up before the Standing Committee. A list of the Additional Sessions Judges for trial of sessions' cases and list of the Special Magistrates was also placed for kind consideration of the Standing Committee. 8....
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....Sub-section (1) of the Code of Criminal Procedure, 1973, respectively" be added." 87. Accordingly, Notification No. 184A dated 20.5.2006 was issued by the Patna High Court by which the premises of the District Jail, Siwan will be place of sitting of the Court of Sessions. 88. Mr. Parekh also pointed out that vide letter No. 5137/Admn (Appointment) dated 20.5.2006, Mr. Gyaneshwar Srivastava, Additional District and Sessions Judge, Darbhanga was designated as the Presiding Officer (Special Judge) of the Special Court of the Additional District and Sessions Judge being constituted inside the District Jail, Siwan for the expeditious trial of Sessions Cases pending against Mohd. Shahabuddin. 89. Similarly, vide letter No. 5139, the Registrar General informed the Law Secretary that the Patna High Court had been pleased to accept the proposal of the State Government for establishment of a Special Court of Judicial Magistrate, 1st Class inside the District Jail, Siwan for the expeditious trial of cases pending against Mohd. Shahabuddin. The Registrar General vide letter No. 5141 dated 20.5.2006 informed the Secretary Department (Personnel) that Patna High Court has been pleased to recom....
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....s came into force with effect from 7.6.2006. 95. Mr. Parekh submitted that there is no infirmity in establishing two Special Courts inside the Siwan Jail for trying the cases of Md. Shahabuddin, M.P. from Siwan constituency, as the impugned notifications were issued in pursuance to the direction of the Patna High Court vide its notification dated 20.5.2006. 96. According to Mr. Parekh, the contentions raised by the appellant in the present appeal have been rejected by a three- Judge Bench of this court in Kehar Singh's case. It has been held that: "The High Court need not afford hearing to accused before fixing place of sitting of Sessions Court. Under Section 9(6) Cr.P.C. the High Court has the jurisdiction to specify the place or places where ordinarily a Court of Session may sit within the division. There is no error if the Sessions trial is held in Tihar Jail after such a notification has been issued by the High court. As soon as a Court holds trial in a venue fixed for such trial, it is deemed to be an open Court under Section 327, irrespective of the place of trial - whether it is a private house or a....
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....(6), the High Court exercises administrative power intended to further the administration of justice. The second part deals with the power of the Court of Session. The judicial power of the court intended to avoid hardship to the parties and witnesses in particular. One is independent of and unconnected with the other, the exercise of which is conditioned by mutual consent of the parties. The court further observed that the exercise of that power has to be narrowly tailored to the convenience of all concerned. It cannot be made use for any other purpose. The limited judicial power of the Court of Session should not be put across to curtail the vast administrative power of the High Court. 100. In response thereto, Mr. Jethmalani, the learned senior counsel for the appellant pointed out in the rejoinder that there is no law that a bad character person should be tried by a Special Court. He submitted that Notification dated 20th May, 2006 was not gazetted before the consequential notification dated 7th June, 2006 was issued. He has referred to the definitions of "notification", "official Gazette" and "Gazette" in the Criminal Procedure Code. According to the definition given in the C....
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....rding of Section 9 of the Code that there is no need for the High Court to give a hearing while deciding the venue of the trial. It is only if the Sessions Court is moving the place of trial that the parties have a right to a hearing. It must be added that one of the exceptions to the rule of audi alteram partem is the denial of hearing by implication. D. D. Basu in his celebrated book mentions: "(a) Where the statute classifies different situations and while, in some cases, it makes it obligatory to give a hearing to the party to be affected by the proposed order, in some other specified circumstances, such as an emergency or the avoidance of public injury, no such hearing is required because of the nature of the exceptional situation." [Basu, Durga Das, Administrataive Law, Sixth Edition, 2004 at pg. 288] 105. It is therefore, clear that there is no statutory right for the appellant to be heard. However, common law and the principles laid down in the Constitution lay down that even in administrative action there must be minimum standards that are to be maintained. In State Bank of Patiala & Others v. S.K. Sharma (1996) 3 S....
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....uld be required to protect the witnesses, the officers of the Court and the appellant. Therefore, it is clear from the letter of the Superintendent of Police of Siwan that it is not possible to hold the trials of the appellant in the open court. Holding of the trials of the appellant in open court may affect the trials of other civil and criminal cases that are going on in the same court building. Therefore, there is no violation of the principles of natural justice in shifting the trials of the cases of the appellant from a regular court to a special court. 111. When there is no prima facie violation of the principles of natural justice then one must test whether there is need for a judicial review of the orders of shifting the trials. The Privy Council in Alfred Thangarajah Durayappah of Chundikuly v. W.J. Fernando & Others (1967) 2 AC 337 laid down that it was neither possible nor desirable to classify exhaustively the cases in which a hearing is required but three factors must be borne in mind- (1) The nature of the property or office held or status enjoyed by the complainant. (2) The circumstances in which the other deciding party is entitled to intervene. (3) When the la....
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.... right to a presumption of innocence." 116. In Adolph Dammerau v. Commonwealth of Virginia 3 Va. App. 285 (1986), the Court of Appeal ruled: "Rather, the surroundings and circumstances of each situation must be examined to determine if the public was inhibited from attending the trial so that "freedom of access" was effectively denied." 117. This clearly shows that the approach of the court that there is no presumption that a trial in prison is not an open trial. 118. In The People v. Robert England the Court 83 Cal. App. 4th 772 (2000) of Appeals of California held that reasonable restrictions, like security checks should be allowed. The court found: "In this case, the court did not close the trial to the public. Defendant argues only that it was more difficult for the public to attend because some people would be dissuaded from attending a proceeding held on prison grounds and some would resent having to identify themselves to prison officials to gain access to the grounds. Neither concern impacts defendant's right to a public trial. As noted previously, becau....
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.... party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly...." In the same case this Court stated: "it is true that all actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice..." 123. In George v Secretary of the State for the Environment (1979) 77 L.G.R. 689 (1979), the court held that there must be some real prejudice to the complainant: "there is no such thing as a merely technical infringement of natural justice." The court noted: "The question is whether, as a result of any failure in procedure or the like, there was a breach of natural justice. On this approach, the position under the first limb is almost indistinguishable from that under the second limb. One should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error that has been made." 124. In R. Balakrishna Pillai v. State of Kerala (2000) 7 SCC 129, this Court observed regarding adherence to the Principles of Natural Just....
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....eace in the court premises and nearby areas and can commit murder and other serious law and order problems.........." 128. In Ajit Kumar Nag v. General Manager (P.J.), Indian Oil Corporation Ltd., Haldia & Others (2005) 7 SCC 764, there was clear record that the employee had assaulted a doctor and it was not possible to run a hospital safely and as an emergency the employee was dismissed. The court held that the dismissal was valid in view of maintaining discipline of the hospital. 129. I have heard the learned counsel for the parties at length and carefully examined the provisions of law and the relevant Indian, English and American judgments. The judgments and other literature available on record favour public trial or open trial as a rule. 130. Cooley, J. in his well known book Cooley's Constitutional Law, Vol I, 8th edn., at page 647 observed as under: "It is also requisite that the trial be public. By this is not meant that every person who sees fit shall in all cases be permitted to attend criminal trials; because there are may cases where, from the character of the charge and the nature of the evidence by which it is to be....
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.... publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: "Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise...." 132. In dispensation of justice, the people should be satisfied that the State is not misusing the State machinery like the Police, the Prosecutors and other Public Servants. The people may see that the accused is fairly dealt with and not unjustly condemned. There is yet another aspect. The courts like other institutions also belong to people. They are as much human institutions as any other. The other instruments and institutions of the State may survive by the power of the purse or might of the sword. But not the Courts. The Cour....
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....educated decisions about how to remedy abuses within the criminal justice system. Finally, public access to trials serves an important "sunshine" function. Closed proceedings, especially when they are the only judicial proceedings in a particular case or when they determine the outcome of subsequent proceedings, may foster distrust of the judicial system. Open proceedings, enhance the appearance of justice and thus help to maintain public confidence in the judicial system." 134. In Gannett Co. Inc. v. Danial A. DePasquale (1979) 443 U.S. 368, the defendants were charged with murder and requested closure of the hearing of their motion to suppress allegedly involuntary confessions and physical evidence. The prosecution and the trial Judge agreed and said that closure was necessary. The public and the press were denied access to avoid adverse publicity. The closure was also to ensure that the defendants' right to a fair trial was not jeopardized. The Supreme Court addressed to the question whether the public has an independent constitutional right of access to a pretrial judicial proceedings, even though the defendant, the prosecution, and the trial Judge had agreed that closure was....
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....the interests of parents and relatives. .... Such an approach ensures that the constitutional right of the press and public to gain access to criminal trials will not be restricted except where necessary to protect the State's interest. 136. It will be clear from these decisions that the mandatory exclusion of the press and public to criminal trials in all cases violates the First Amendment to the United States Constitution. But if such exclusion is made by the trial Judge in the best interest of fairness to make that exclusion, it would not violate that constitutional right. 137. It is interesting to note that the view taken by the American Supreme Court in the last case, runs parallel to the principles laid down by this Court in Naresh Shridhar Mirajkar case (supra). 138. In the present case, it is necessary to maintain the discipline of the court which is not only trying the case of the appellant but a large number of other cases which were getting delayed by the presence of a large number of supporters. 139. The appellant is claiming that his right to a public trial has been vitiated by the court being set up inside the jail. The State must demonstrate that: (a) nobody is ....
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....hat goes on in court while being told by the press or what happens there, to the end that the public may judge whether our system of criminal justice is fair and right. Criminal trial is a public event. What transpires is a public property. Therefore, I have no difficulty in concluding that open trial is the universal rule and must be scrupulously adhered to. The right to public trial has also been recognized under section 327 of the Code. 146. The importance of public trial in a democratic country governed by rule of law can hardly be over emphasized, but at the same time I cannot overlook the fact that primary function of the judiciary is to do justice between the parties which bring their causes before it. Therefore, it is difficult to accede to the proposition that there cannot be any exception to the universal rule that all cases must be tried in open court. In a case of extraordinary nature, the universal rule of open trial may not be adhered to. This is the settled legal position crystallized by a three-Judge Bench of this court in Kehar Singh case (supra). The High Court looking to the exceptional and extraordinary circumstances can take such a decision and no personal he....
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....remanded to Siwan Jail in various criminal cases from time to time, he never co-operated and got himself produced in the concerned court, situated only about one kilometer away from Siwan Jail, on the dates fixed for his appearance. A large number of advocates and press people have attended the hearings and they have been regularly reporting this matter in the press. 152. In this case though the trials are taking place in jail but in fact no real prejudice has been caused to the appellant. All 38 counsel of the appellant, public and press people are permitted to remain present during the court proceedings. The court proceedings were regularly reported in the Press. 153. I would like to reiterate my main findings on following issues as under:- I. Initially the copy of the notification was not given to the appellant but on the directions of this court the same was made available to the appellant. So there is no surviving grievance of the appellant as far as this aspect of the matter is concerned. II. The decision to hold the trials of cases of the appellant in jail was taken in pursuance to the notification dated 20.5.2006 issued by the High Court of Patna. The State Government ....
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....he same, while, in essence, concurring with the conclusions arrived at by my learned brother. I may, however, add that since in the main judgment detailed facts have been delineated, I refrain myself from repeating the same, but refer only to those basic facts as would help in appreciating the issues discussed hereinafter. 2. Main challenge in this appeal as it appears from the arguments advanced is to the legality and the validity of the three notifications one of which was issued by the Patna High Court on 20.05.2006 and the other two notifications dated 07.06.2006 were issued by the Government of Bihar. 3. The appellant, who was a Member of Parliament from Siwan Lok Sabha Constituency, being aggrieved by the issuance of the aforesaid notifications filed a writ petition in the High Court of Patna wherein he challenged the legality and validity of the aforesaid three notifications. 4. The appellant was arrested in connection with the Siwan P.S. Case No. 8 of 2001 and was remanded to judicial custody on 13.8.2003 and he continued to remain in custody till 18.02.2005 till he was granted bail by the Patna High Court on 10.02.2005. A number of other cases came to be lodged against....
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....s applicable to transfer of any case to any court to which provisions of Section 407 of CrPC would apply. It was further submitted that since the power of transfer of a case is a judicial power, an opportunity of hearing should have been afforded to the appellant before exercising such powers and as the aforesaid notifications were issued without doing so, the said notifications were illegal, without jurisdiction and in violation of the principles of natural justice. It was further submitted that the expeditious hearing of cases is a concomitant of the principles of administration of justice and, therefore, the same could not be a valid criteria for transfer of cases and that also cannot be done in relation to one particular individual. It was also submitted that the trial held in the District Jail, Siwan cannot be said to be an open court and, therefore, there was violation of Section 327 of the CrPC as also violation of the right to have a fair and open trial. 7. All the aforesaid submissions made by the appellant before the High Court were considered by the High Court and by its impugned judgment and order dated 14.08.2007, the same were held to be without merit and consequentl....
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....ticularly when the said power is exercised in the cases of only one individual. (h) A trial conducted inside the jail premises, not being an open court, violates Section 327 of CrPC as well as Articles 14 and 21 of the Constitution. (i) Whether mention of the words 'Civil Code' and 'Civil Court' in the notifications issued by the State vitiates the notifications. 10. First of all, let me deal with the scope and ambit of the power under Section 9(6) and Section 11 of CrPC. Since reference was also made by the counsel appearing for the appellant to Section 407 of CrPC, it would be appropriate to extract the aforesaid provisions in order to appreciate the issues raised before us. Section 9 (6) of the CrPC reads as follows: - "9. Court of Session. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (6) The Court of Sessions shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution an....
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....(iv) That any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower court, or on the application of a party interested, or on its own initiative: xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (8) When the High Court orders under sub-section (1) that a case be transferred from any court for trial before itself, it shall observe in such trial the same procedure which that court would have observed if the case had not been so transferred." xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx" 11. Mr. Jethmalani, after referring to the aforesaid provisions, submitted that the power to transfer cases from one sessions division to other sessions division could be made only in respect of the pending cases of which cognizance has been taken and evidence recorded only after resorting to the principles of audi alteram partem, that is, upon opportunity of hearing having been given to the party as the interest of the party to have a fair and open trial is involved in the case and consequently such a power could be exercised only under the provisions of Section 9(6) of CrPC which could only be done after hearing the par....
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.... Court of Sessions shall be the place notified by the High Court. That the power of the Court of Sessions to fix the venue is an exception to the aforesaid general rule is also indicated by the use of the word "ordinarily" in the first part of Section 9(6) of CrPC. Thus, by virtue of the provision contained in the second part of Section 9(6), the Court of Sessions is endowed with the power to hold its sittings at any place in the sessions division other than that notified by the High Court. However, being an exception, the CrPC specifically mandates in the second part for observance of a special procedure contemplating compliance of the rule of audi alteram partem and also for obtaining the consent of the parties before the Court of Sessions may hold its sittings at a place other than the place or places notified by the High Court. Being an exception to the general rule, the power of the Court of Sessions to change the venue of a trial is circumscribed and could be exercised by the Court of Sessions only on the fulfillment of the aforesaid condition and only on the ground that such change in the venue of trial will tend to the general convenience of the parties and witnesses and ca....
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....ng a case or class of cases from the jurisdiction of the court where it/they is/are pending trial, and (b) putting it/them under the jurisdiction of another court (whether of equal or superior jurisdiction) for adjudication. Thus, every transfer involves two different courts. By issuing the said notification, the High Court cannot be said to have transferred the cases pending against the appellant, for the said notification simply notified the premises of District Jail, Siwan, to be the place of sitting for holding the trial of cases pending against the appellant. The notifications did not, in any manner, affect or abridge the jurisdiction of the Court of Sessions, Siwan, to try those cases. Thus, there was a shift simpliciter in the venue of the trial, without there being anything more. In such circumstances, the present case cannot be said to be a case of "transfer" to which the provisions of Section 407 are attracted. 17. Now what remains to be examined is whether the rule of audi alteram partem should have been complied with when the High Court notified a shift in the venue of the trial. The power of the High Court under section 9(6) to notify a particular place or places whe....
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....servant serving under the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Constitution. But this "pleasure" doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Article 311. Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in A.K. Kraipak v. Union of India "the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it". It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of ....
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....on 9 is to be construed as a conscious decision on the part of the legislature for, it intended to exclude such a requirement when such power is to be exercised by the High Court. 23. Even otherwise, it is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is a determinative factor of the legislative intent. If the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statute. Reference in this regard may be made to a recent decision of this Court in Ansal Properties & Industries Ltd. v. State of Haryana (2009) 3 SCC 553. 24. Further, it is a well established principle of statutory interpretation that the legislature is specially precise and careful in its choice of language. Thus, if a statutory provision is enacted by the legislature, which prescribes a condition at one place but not at some other place in the same provision, the only reasonable interpretation which can be resorted to by the courts is that such was the intention of the legislature and that ....
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.... and Court of Judicial Magistrate First Class was established in, the District Jail, Siwan. 29. It is the case of the appellant that while issuing the notification dated 20.05.2006, the High Court had no intention of creating a jail Sessions Court in exercise of its administrative power because it left the same to be done by the State Government and further that the notification dated 07.06.2006 was void as the Governor of Bihar could not have exercised power under Section 9(6) of the CrPC. He further submitted that the notification dated 20.05.2006 was not supplied to the appellant and the same was not published in the Gazette and, therefore, the said notification was invalid. 30. The aforesaid submission of the learned senior counsel appearing for the appellant was strongly refuted by Mr. Ranjit Kumar, learned senior counsel appearing for the State of Bihar and also by Mr. P.H. Parekh, learned senior counsel appearing for the High Court of Patna. 31. Mr. Ranjit Kumar specifically submitted that neither such plea was raised in the writ petition nor argued before the High Court nor any such issue was raised before this Court and, therefore, such an issue cannot be raised for the....
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....xpeditiously. It was further indicated that there was a serious danger to public peace during the presence of the appellant in the court premises due to the fact that his supporters and other co-criminals could attack the witnesses and that even the possibility of threat and attack on the Public Prosecutor and the District Prosecuting Officer could not be ruled out. It was mentioned in the letter that besides that, since the appellant was wanted in many criminal cases, other criminal groups could attack him. It was also mentioned in the letter that since the appellant was a sitting MP and had a large number of supporters, there was every possibility of the working of the other courts in District Court, Siwan being impaired for, his supporters could create disturbance during hearing and that there could be murder and other serious law and order problems during the hearing of the cases of the appellant. 34. The District Magistrate after receipt of the aforesaid communication concurred with the report of the Superintendent of Police, Siwan and wrote to the Home Secretary, Bihar requesting for necessary action for construction of court rooms in District Jail for trial of cases relatin....
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....regarding designation of Special Court of Sessions and Court of Judicial Magistrate, 1st Class for expeditious trial of cases pending against Md. Shahbuddin and for notifying the Siwan Jail for sitting of Sessions and Magisterial Courts inside the Siwan Jail for trial of such cases. It is resolved to designate one Court of Additional District and Sessions Judge as Special Court for trying the cases triable by the Court of Sessions and one Court of Judicial Magistrate for trying the cases triable by the Court of Magistrate, First Class. The matter of posting of the Officers i.e. ADJ and Judicial Magistrate, First Class, the matter is placed before the Sub Committee which has been entrusted the transfer and posting under the Annual General Transfer. It is also resolved that the Siwan Jail premises be notified as a place of sitting of Sessions Court and Magisterial Court under provisions of Section 9(6) of Criminal Procedure Code". 37. Subsequent thereto, another note was prepared by the Joint Registrar (Establishment) on 17.05.2006 which was placed before the Registrar General in which it was pointed out that Section 9(6) of the CrPC related only to the Court of Sessions and not to....
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....is letter No. 5145 dated 20.05.2006 wrote to the Superintendent, Secretariat Press, Bihar, Gulzarbagh, Patna with a request to publish the notification issued under Section 9(6) of the CrPC in the next issue of the Bihar Gazette. The issuing section was instructed to issue the same at once on the very same day under a sealed cover as per the direction of the Registrar General. However, the said notification which was directed to be published in the next issue of the Bihar Gazette came to be published in Part - I of the Bihar Gazette dated 16.08.2006 along with other notifications of various dates. Thereafter, the Law (Judicial) Department, Government of Bihar, Patna published the two Notifications bearing No. 1452 dated 07.06.2006 with S.O. 80 and 82 in the Bihar Gazette (Extra Ordinary Edition) which were assailed by the appellant. The Personnel Department also issued the Notification Nos. 5556 and 5557 dated 12.06.2006 regarding appointment of Presiding Officer for the said two Special Courts. 42. It is therefore conclusively established that the High Court took all necessary steps to get the notification issued and published in the official gazette. If however the Government Pr....
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....ged on the ground that the State Government has no power to issue such a direction under Section 9(6) and Section 11 of the CrPC. As already discussed hereinbefore that the power under Section 9(6) is vested in the High Court and in exercise of the said power the High Court had issued a notification on 20.05.2006 which was also published in the official Gazette. The subsequent notification issued by the State of Bihar appears to be a surplusage, which was issued for making available the jail premises for the purpose of holding the Sessions Court. The competent authority as envisaged under law having issued a notification for constituting and establishing a Sessions Court within the District Jail, Siwan, any further notification by the State Government making the jail premises available for the said purposes cannot be said to be illegal and void. 45. I am, therefore, of the considered view that there is no infirmity in establishing both the Special Courts i.e. the Court of Additional District and Sessions Judge to try sessions cases pending against the appellant and the Court of Judicial Magistrate, First Class to try the cases pending against the appellant in the Court of Judicial....
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....is traceable to a statutory power, the courts will uphold such State action. [Reference in this regard may be made to the decisions of this Court in P. Balakotaiah v. Union of India, AIR 1958 SC 232; Lekhraj Sathramdas Lalvani v. N.M. Shah, Deputy Custodian-cum-Managing Officer, (1966) 1 SCR 120; Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343; B.S.E. Brokers' Forum, Bombay v. Securities And Exchange Board of India, (2001) 3 SCC 482] 49. Although the State Government could not have exercised powers under the provisions of Sections 13 and 14 (1) of the Bengal, Assam and Agra Civil Courts Act, 1887 for making available the jail premises for the purpose of holding the Sessions Court, the provisions of the CrPC would be applicable under sub-section (6) of Section 9 of the CrPC. The aforesaid contention, therefore, is also without merit and is rejected. 50. The next contention which was raised by the learned senior counsel appearing for the appellant was that the aforesaid power and jurisdiction could not be exercised by the High Court in respect of the trials relating to one particular individual pending in one Sessions Division. It was fur....
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.... against him. So far the contention as to whether or not such power as envisaged under Section 9(6) of the CrPC could be exercised in a pending case, there is no reason as to why the said power should not be applicable even to pending cases and, therefore, the said contention is also without any valid substance. 53. The next issue which arises for consideration is based on the submissions of the learned senior counsel appearing for the appellant is that a trial must be conducted in an open court and the constitution of a special Sessions Court in the jail premises of District Jail, Siwan amounts to violation of Articles 14 and 21 of the Constitution of India as also of the provision contained in Section 327 of CrPC. This issue was extensively argued by the learned senior counsel appearing for the appellant. However, learned senior counsel appearing for the respondent vehemently repelled the aforesaid submission and submitted that the grievance of the appellant with regard to a fair trial not being meted out to him in the jail is unfounded. It was further submitted that only because the trial is being conducted against the appellant in the jail premises, it cannot be said that the ....
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....t have full control of the Courthouse. The accused must have all facilities to have a fair trial and all safeguards to avoid prejudice." 55. It is evidently clear from the aforesaid decision that a trial inside a jail does not stand vitiated solely because it is conducted inside the jail premises. However, at the same time, there must be compliance of the provisions contained in Section 327 of the CrPC which guarantees certain safeguards to ensure that a trial is an open trial. Section 327 of CrPC is reproduced as hereunder: "327. Court to be open. (1) The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court to which the public generally may have access, so far as the same can conveniently contain them: Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room building used by the court. (2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under sectio....
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....atna High Court and the Government of Bihar simply shifted the venue of the trial of cases pending against the appellant in the different courts to the premises of the District Jail, Siwan. I wish to point out that it is well settled law that a classification may be reasonable even though a single individual is treated as a class by himself, if there are some special circumstances or reasons applicable to him alone and not applicable to others. The reasons which necessitated the shifting of the venue of the trial of cases pending against the appellant only have already been discussed hereinbefore. It must be noted that no special procedure was prescribed and the cases were to be conducted and disposed of in accordance with the ordinary criminal procedure as prescribed under the CrPC. I am, therefore, of the considered opinion that no prejudice was caused to the appellant while shifting the cases to the Special Courts situated inside the premises of District Jail, Siwan. Therefore, I am of the considered view that there is no violation either of Section 327 or of Articles 14 and 21 of the Constitution. 58. In light of the aforesaid discussion, although aforesaid issues were raised ....