Propriety of trial within the Jail premises.

These are two petitions for revising the order of the Additional First Class Magistrate, Cuddalore, in C. C. Nos. 552 and 568 of 1949, directing the trial of the petitioners in those two cases to take place in the Civil Debtor’s yard of the Cuddalore Central Jail and dismissing the petitions put in by these petitioners to hold the Court in the Additional First Class Magistrate’s own Court house or other suitable Court house and not in the Civil Debtor’s yard. C. C. No. 552 of 1949 is a case concerning 30 accused, including, the petitioner in Cr. R. C. No. 1624 of 1949, and the offence therein are offences under sections 147, 332, 353 and 149, Indian Penal Code. C. C. No. 568 of 1949 is against 26 accused, including the petitioner in Cr. R. C. No. 1625 of 1949 and comprises offences under sections 147, 332 and 149, Indian Penal Code. Some of the accused in both the cases are detenus, and some others are convicts. The petitioner in both these Criminal revision cases is a detenu and is the first accused in both the cases.

I have perused the connected records, and heard the learned counsel for the petitioner and the learned Public Prosecutor contra. The learned counsel for the petitioner raised several contentions. The first was that, under section 352, Criminal Procedure Code, a presiding Judge or Magistrate has himself to decide about the venue of the trial, and cannot consult any other person, like the District Magistrate, as in these two cases. I cannot agree. The Magistrate has, no doubt, himself to decide the venue. But there is nothing in law to prevent him from consulting his superior officers, or even others likely to give suitable advice, before arriving at his decision. Thus, a Sub-Divisional Magistrate camping in an out of the way place has under our law, to try cases and has often to hold his Court in a travellers bungalow, a Hanuman temple, or even under a village banian tree near his tent. He cannot himself know the amenities in all the places he proposes to camp at, and he will have to consult his superior officers, or others competent to give advice and acquainted with the places about the suitable place for holding his Court in such camps, and then decide himself where he will hold his Court. So long as a Judge or Magistrate decides for himself finally about the venue, without being fettered by the advice of any unauthorised person, I see nothing wrong about it. It will be only like a judge or Magistrate hearing a vakil about the right decision in a case, and then arriving at his own decision which sometimes may coincide with the decision advocated by one party.

The next contention was that, in any event, the trial ought to be held only in a Court house or similar buildings. I have already held above that, under our system of touring Magistrates Courts cannot always be held in the Court house, and will have often to be held in other places.

The next contention was the most important one, namely, that the place chosen for holding a Court by a Judge or a Magistrate must be open to the public generally, and that a Court must not be held in a place causing apprehensions to the accused regarding a fair trial or smacking of privacy or exclusion of the public. There is no doubt that, generally, Courts should, under the law of our land and under section 352, Criminal Procedure Code, be held only in an open and public place to which the public generally may have access, so far as the place can conveniently contain them, provided of course, that the presiding Judge or Magistrate may, if he thinks fit, order, at any stage or any enquiry or trial in a particular case that the public generally or any particular person, shall not have access to, or be or remain in, the room or building used by the Court. The House of Lords has, no doubt, held in Scott v. Scott1, that even a nullity suit or other matrimonial suit cannot be held by the Probate, Divorce and Admiralty Division in camera even in the interests of public decency. B