TaxTMI 
TaxTMI 
2010 (3) TMI 991
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....of sitting of the Court of Sessions for the Sessions Division of Siwan for the expeditious trial of Sessions cases pending against Md. Shahabuddin. 4. The appellant is also aggrieved by the two notifications bearing No.A/Act-01/2006 Part-1452/J corresponding to S.O. No. 80 dated 7.6.2006 and No.A/Act-01/2006 Part-1453/J corresponding to S.O. No.82 dt. 7.6.2006 issued 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. Shahab....
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....itnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein." 8. Mr. Jethmalani submitted that the power of changing the venue is vested exclusively 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 ....
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....d under section 309. (7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (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. (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....
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....e summarily tried, while for grave and heinous offences an elaborate mode of procedure has been laid down. 13. The said Special Act suggests no reasonable basis or classification, either in respect of offences or in respect of cases. It has not laid down any yardstick or measure for the grouping either of persons or of cases or of offences by which measuring these groups 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 ....
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.... might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance." J. Bentham Rationale of Judicial Evidence 524 (1827). 19. (Page 985) The early history of open trials in part reflects the 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 t....
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.... demonstrative purpose of the trial process. Open trials assure the public that procedural rights are respected, and that justice is afforded equally. Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law. Public access is essential, 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. I....
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.... pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, 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 fo....
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.... of applicability of 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, ....
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....ble 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 setting aside of the dismissal order in this proceeding itself because what has been stated in ECIL case (199....
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.... 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 pe....
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....nts and sisters of the deceased as well as the 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 m....
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....cases pending against the appellant. 40. Mr. Ranjit Kumar next submitted 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 C....
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.... desire of the High Court qua trial of the appellant. 48. He further submitted that 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 Ref....
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....Court to Superintendent, Government Printing Press, Gulzarbagh for publication of the notification No.184A dated 20th May, 2006 in the next issue of Bihar gazette (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 20^th 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 f....
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....e Code. It would also come within the words 'irregularities in any sanction for the prosecution'. If the arguments of the appellant were to be upheld that the notification is bad 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 ....
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....al Judge, a fair prosecutor and atmosphere 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....
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....rt. 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 proviso which reads: Provided that the court of Sessions may hold, or th....
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....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 here even before the Constitution our criminal practice always contemplated a trial which is open to publi....
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....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, vehicle and vessel. So court can be held in a tent, vehicle, a vessel other than in court. Furthermore, the proviso to Section 327 Criminal Procedure Code provides that the presiding Judge or Magistrate may also at any stage of trial by order restrict acces....
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.... 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 subject matter of several decisions of different High Courts. 72. The Court also dealt with the judgment of this Court in A.K. Roy & Others v. Union of India & Others (1982) 1 SCC 271 and observed (at page 342, para 106) as under: "..... The right to a public trial is not one of the guaranteed right....
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.... 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 attack him. Since he was a sitting Member of Parliament (hereinafter referred to as 'M.P.') and looking to the number of his supporters, it would impair the working of other courts in the Civil Court, Siwan. His supporters could create disturbance during hearing or realizing that his defence became weak and there was a possibility that h....
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....ce, 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. 84. Accordingly, the matter was placed before the Standing Committee in its meeting held on 11.5.2006. The Agenda for the said meeting was: "Letters received from the Law Secretary, Government of Bihar regarding designation of the Special Court of Sessions and Court of Judicial Magistrate, 1st Class f....
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.... 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 recommend the name of Shri Vishwa Vibhuti Gupta, Judicial Magistrate, 1st Class, Siwan for his designation as the Presiding Officer (Special Magistrate) of the Special Court of Judicial Magistrate, 1st Class being constituted inside the District Jail, Siwan for expeditious trials of cases pending against Md. Shahabuddin. 90. The Registrar General vide his letter No. 5145 dated 20.5.2006 wrote to the Sup....
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.... 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 jail and everyone has a right to go and attend the trial. The High Court can fix a place other than the Court where the sittings are ordinarily held if the High Court so notifies for the ends of justice. The argument that jail can never be regarded as a proper place for a public trial is too general. Jail is not a prohibited place for trial of criminal cases. Nor the jail trial can be regarded as an illegitimate trial. There can be trial in jail prem....
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....r 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 Code, the word "notification" means a notification published in the Oficial Gazette. "Official Gazette" or "Gazette" shall mean the Gazette of India or the Official Gazette of a State. 101. He submitted that the copy of the notification was not made available to the appellant and he was driven to file a writ petition before this court and only because of the direction of this court, a copy of the notification was made available to him. 10....
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.... 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 SCC 364 this court ruled: "The objects of the principles of natural justice - which are now understood as synonymous with the obligation to provide a fair hearing is to ensure that justice is done, that there is no failure of justice and that every person whose rights are going to be affected by the proposed action gets a fair hearing." 106. In Wiseman & Another v. Borneman & Others (1971) A.C. 297 Lord Reid held: "For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they h....
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.... 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 latter's right to intervene is proved, the sanctions he can impose on the complainant. 112. The subject matter in the present case is the open trials for the appellant. There is a claim that it is being vitiated by holding the trial in the jail. Here again there is doubt as to whether the first requirement has been vitiated by the decision of the High Court. The appellant has merely stated that the trial of his case has been transferred from the Siwan Court to the Siwan Jail. This in itself does not prove that the trial has been closed to the public. In Kehar Singh's case, this court observed that for reasons o....
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....s 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, because the courtroom was located outside the actual prison wires, there was little possibility that the public might come into contact with inmates or otherwise be exposed to prison activities. That some people might not want to go to a courtroom located on prison grounds is irrelevant to determining whether a trial was public. Other individuals might not want to go downtown to an urban courtroom, while others might not want to drive long distances in rural areas to attend a courtroom located in another town. These individual predilections do not make what is otherwise a public trial any less public. Nor does the fact that individuals have to identify themselves before entering prison grounds unlawfully curtail defendant's right to a public trial. Far more stringent security procedures have been permitted in other cases." 11....
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....d 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 Justice. Relevant para is reproduced as under: "It is true that one of the principles of the administration of justice is that justice should not only be done but it should be seen to have been done. However, a mere allegation that there is apprehension that justice will not be done in a given case is not sufficient." 125. In Jankinath Sarangi v. State of Orissa (1969) 3 SCC 392, this court pointed out that there is no carte blanche rule of setting aside orders. Hidayatullah CJ, ruled: "There is no doubt that if the principles of natural Justice are violated and there is a gross case, this Court would interfere by striking down the order of dismissal; but there are cases and cases. We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right." 126. In Sahai Singh (supra), the court noted that if the Executive....
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....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 supported, the motives to attend the trial on the part of portions of the community would be of the worst character, and where a regard for public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidences of human depravity which the trial must necessarily bring to light. The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility into the importance of their functions; and the requirement is fairly observed if, without partiality of favouritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a pru....
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.... 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 Courts have no such means or power. The Courts could survive only by the strength of public confidence. The public confidence can be fostered by exposing Courts more and more to public gaze. 133. Beth Hornbuckle Fleming in his article "First Amendment Right of Access to Pretrial Proceeding in Criminal Cases" (Emory Law Journal, V.32 (1983) P.619) neatly recounts the benefits identified by the Supreme Court of the United States in some of the leading decisions. He categorizes the benefits as the "fairness" and "testimonial improvement" effects on the trial itself, and the "educative" and "sunshine" effects beyond the trial. He then proceeds to state; "Public access to a criminal trial helps to ensure the fairness of the proceeding. The presence of public and press encourages all participants to perform their duties conscientiously and discourages misconduct and abuse of power by judges, prosecutors and other participants. Decisions based on partiality and bias are....
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.... 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 necessary. Explaining that the right to a public trial is personal to the defendant, the Court held that the public and press do not have an independent right of access to pretrial proceedings under the Sixth Amendment. 135. Although the Court in Gannett held that no right of public access emanated from the sixth Amendment it did not decide whether a constitutional right of public access is guaranteed by the first amendment. This issue was discussed in great detail in Richmond Newspaper (supra). This case involved the closure of the court-room during the fourth attempt to try the accused for murder. The United States Supreme Court considered whether the public and press have a constitutional right of access to criminal trials under the first amendment. The Court held that the first and fourteenth amendments guarantee the public and press the right to attend criminal trials. But the Richmond Newspapers case (supra) still left....
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....t 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 being denied entry to the court room as long as they agree to the regular security checks and (b) there is a clear and logical reason as to why the case was transferred from the Siwan courthouse to the Siwan Jail. 140. The second argument of the appellant is that the notification was not made available to him on time and therefore the proceedings are void. In Managing Director, ECIL, Hyderabad etc. etc. v. B. Karunakar etc. etc. (1993) 4 SCC 727 a Constitution Bench took the view that before an employee is punished in a disciplinary enquiry, a copy of the enquiry report should be furnished to him (i.e., wherever an enquiry officer is appointed and he submits a report to the Disciplinary Authority). It was held that not furnishing the report amounts to denial of natural justice. At the same time, it was held that just because it is shown that a copy of the enquiry officer's report is not furnis....
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....ordinary 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 hearing is warranted before taking such a decision. 147. The test as laid down by this Court in Kehar Singh's case (supra) is whether public could have reasonable access to the court room. The court noted: "It may now be stated without contradiction that jail is not a prohibited place for trial of criminal cases. Nor the jail trial can be regarded as an illegitimate trial. There can be trial in jail premises for reasons of security to the parties, witnesses and for other valid reasons. The enquiry or trial, however, must be conducted in open Court. There should not be any veil of secrecy in the proceedings. There should not even be an impression that it is a secret trial. The dynamics of judicial process should be thrown open to the public at every stage. The public must have reasonable access to the place of trial. The Presiding Judge must have full control of the Court ho....
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....e 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 issued two notifications on 7th June, 2006 in pursuance to the notification of the High Court dated 20.5.2006. It became imperative for the State to issue the said notification because the new venue of the trial, i.e., Siwan Jail was not within the control of the High Court. III. I hold that these three notifications, one issued by the High Court dated 20.5.2006 and two issued by the State Government on 7.6.2006 are valid and were issued in consonance with the provisions of law. IV. The High Court in view of the extraordinary facts and circumstances of a particular case is empowered to change the venue of the pending case/trial without hearing the appellant and this would not violate appellant's fundamental rights under Articles 14 and 21 or any other provision of the Constitution. This controversy is no longer res integra and is ....
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.... 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 him and he was re-arrested and detained in Beur Jail, Patna under the provisions of the Bihar Control of Crimes Act, 1981. Though the aforesaid order of detention was set aside, still the appellant continued to remain in custody in connection with other cases that had been lodged against the appellant. 5. The notification dated 20.05.2006 notified the decision of the Patna High Court that the premises of the District Jail, Siwan would be the place of sitting of the Court of Sessions for the Sessions Division of Siwan for expeditious trial of sessions cases pending against the appellant namely Md. Shahabuddin. By issuing the other two notifications dated 07.06.2006, the Government of Bihar directed that the Court of Additional District and Sessions Judge of Siwan, Sessions Division would hold its sitting in....
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....annot 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 consequently, the writ petition was dismissed. 8. Being aggrieved by the aforesaid judgment and order passed by the High Court, the present appeal was preferred by the appellant in which notice was issued. The learned counsel appearing for the parties argued the case in extenso and in conclusion of the same the judgment was reserved. 9. Mr. Ram Jethmalani, learned senior counsel appearing for the appellant made extensive arguments during the course of which he even travelled beyond the pleadings filed in the writ petition to which reference shall be made during the course of present discussions on the various arguments raised before this Court. On the basis of the pleadings and the arguments advanced and on consideration thereof, the following legal issues arise for consideration which have been dealt with her....
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.... "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 and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein." xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Section 11 of the CrPC reads as follows: "11. Courts of Judicial Magistrates. (1) In every district (not being a metropolitan area), there shall be established as many, Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify: [Provided that the State Government may, after consultation with the High Court, establish, for any, local area, one or more Special Courts of ....
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....xxxxxxxxxxxxxxxxxxxxxxx" 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 parties. Mr. Jethmalani also submitted that if the administrative power of the High Court is construed as applicable to a pending case and without any duty of affording an opportunity of hearing, Section 9(6) should be considered as constitutionally invalid being opposed to Articles 14 and 21 of the Constitution of India. He also submitted that the power under Section 9(6) could not have been exercised either by the High Court or by the State Government and also that even if it is held that the High Court has such a power vested in it under....
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....ifically 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 cannot be exercised for any other purpose or on any other ground. Moreover, the said power can be exercised only with reference to a particular case. The expression "particular case" as used in the second part of Section 9(6) connotes a single or specific case as opposed to a bunch or class of cases. Being an exception to the general rule, the conditions, subject to the fulfilment of which the power to shift the venue of the trial may be exercised by the Court of Sessions, have to be strictly construed. Thus, where the conditions spec....
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....ses 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 where the Court of Sessions shall ordinarily hold its sitting is an administrative power unlike the power of the Court of Sessions under second part of section 9(6) which is judicial in nature. Being so, the High Court was under no obligation to observe the rule of audi alteram partem. The said power undoubtedly is an administrative power exercisable by the High Court. This position was also made clear by the decision of this Court in Kehar Singh (supra) wherein it was observed as follows: "171. The argument that the first ....
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....o 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 the Legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power." (emphasis supplied) 20. In Haradhan Saha v. State of W.B. (1975) 3 SCC 198....
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....t 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 the provision was consciously enacted in that manner. In such cases, it will be wrong to presume that such omission was inadvertent or that by incorporating the condition at one place in the provision the legislature also intended the condition to be applied at some other place in that provision. 25. On a detailed and proper interpretation of Section 9(6) of CrPC there can be only one opinion that it was not necessary for the High Court to observe or comply with the rule o....
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....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 first time at the time of hearing of the present appeal. Mr. Jethmalani, however, tried to repel the aforesaid objection taken by Mr. Ranjit Kumar contending, inter alia, that the aforesaid issue being a legal one, the same could be amended and could be raised by him at any point of time. 32. I find force in the submissions of Mr. Ranjit Kumar, the learned senior counsel appearing for the State of Bihar that the issue which was sought to be raised about the n....
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....nal 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 relating to the appellant. The Law Secretary, Government of Bihar thereafter by his letter No. 361/C/2006 dated 09.05.2006 wrote to the Registrar General of the Patna High Court by enclosing a photocopy of the letters of the Superintendent of Police, Siwan and the District Magistrate, Siwan. He alleged that Md. Shahabuddin, the appellant was a high profile MP of Siwan having criminal antecedents, reportedly facing prosecution in more than 40 cases. He also mention....
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....e 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 the Judicial Magistrate and, therefore, a request was made to place the matter before the court for necessary orders. After obtaining the order of the Registrar General and the Chief Justice of the Patna High Court to the aforesaid extent the matter was placed before the Standing Committee which in its meeting dated 18.05.2006 decided as under: "It is resolved that the minutes of the proceeding of the last meeting of the Stand....
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....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 Press took some time to get the notification published in the official gazette, the High Court cannot be blamed for it nor could the notification be declared to be void particularly when it was so published in the official gazette, as it is established from the records placed before us, although after some delay. The appellant also failed to prove before us and had also failed to plead before the writ Court that t....
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....e 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 Magistrate, First Class, inside the premises of the District Jail, Siwan as the notification under Section 9(6) was issued in accordance with the provisions of law by the High Court of Patna and subsequent notification was also issued by the Government of Bihar in consultation with the Patna High Court. 46. Another issue which was raised by the learned senior counsel appearing for the appellant was tha....
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....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 further contended that if at all such power was exercisable, it could be exercised only with regard to new cases. If the power could be exercised by the High Court for establishing a new court, the same could be created for a group of cases or a class of cases. There were about 40 cases pending against the appellant and they were being tried in different courts creating difficulties for ....
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....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 same was not open and public. 54. According to Black's Law Dictionary (6th Edition, 1990, p. 1091), an "open court" means a court to which the public have a right to be admitted. This term may mean either a court which has been formally convened and declared open for the transaction of its proper judicial business, or a court which is freely open to spectators. In R. v. Denbi....
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.... 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 section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code (45 of 1860) shall be conducted in camera: Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building....