2010 Supreme(SC) 260

2010 (2) Supreme 562
SUPREME COURT OF INDIA
(From Patna High Court)
Dalveer Bhandari. JJ.
Md. Shahabuddin — Appellant
versus
State of Bihar & Others — Respondents
Criminal Appeal No.591 of 2010.
[Arising out of SLP (Crl.) No.1311 of 2008]
Decided on : 25-3-2010

IMPORTANT POINT
The court in jail being an open court and there being no restriction for anybody to witness the trial in the jail, Article 21 is not violated.
In a case of extraordinary nature, the universal rule of open trial may not be adhered to
Entire trial cannot vitiate by non-supply of the notification constituting the court in the jail.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 9(6) – Constitution of special court – Entirely at the discretion of the State Government – State 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. (Para 13)

       AIR 1952 SC 75 – Impliedly distinguished

       (b) Code of Criminal Procedure, 1973 – Section 9(6) – Constitution of special court – No prejudice caused to the appellant by constituting court within the jail – Jail court within one km of sessions court – His supporters disturbing court proceedings in sessions court by their armed presence terrorizing the witnesses – His enemies might endanger his life – Trial virtually not possible in sessions court – No infirmity in constituting special court. (Paras 35 and 37)

       61 L Ed 2d 608, 99 S Ct 2898; (2005) 7 SCC 764 – Relied upon

       1991 (Supp) 1 SCC 600; (1993) 3 SCC 259; (1994) 4 SCC 422 – Referred

       (c) Code of Criminal Procedure, 1973 – Section 9(6) – Principles of natural justice do not apply to first part which is statutory power of the High Court – No infirmity in constituting special court. (Para 41)

       (1985) 3 SCC 398; (1974) 4 SCC 3 – Distinguished impliedly

       (d) Code of Criminal Procedure, 1973 – Section 9(6) – Court premises inside the Jail open to all – Appellant being represented through 38 lawyers – Besides, every other person wanting to attend has been allowed to do so – Press and the public also allowed entry – On the other hand, the appellant and his supporters had objected to the presence of the reporters – Allegation of denial of a fair and open trial devoid of any substance. (Para 46)

       (e) Code of Criminal Procedure, 1973 – Section 9(6) – High Court consciously taking decision to constitute court in Siwan jail – The decision being that of the High Court and not the State Government, no infirmity. (Para 52)

       (f) Code of Criminal Procedure, 1973 – Section 462 – The jail court being in the same Sessions Division and being duly notified, no infirmity. (Para 54)

       (1987) 2 SCC 74 – Relied upon

       (g) Code of Criminal Procedure, 1973 – Section 465 – “Other proceedings before and during the trial” – Would include the notification issued by the High Court and given effect to by the State Government by virtue of the constitutional provisions in Chapter-VI of the Constitution relating to Subordinate Courts – The notification in the nature of a sanction to prosecute the appellant within the Siwan jail premises in the courts of Sessions Division and the Judicial Magistrate – The notification issued in other proceedings during the trial would clearly come within the purview of Section 465 of the Code – A notification empowering a Sessions Court to sit and hold a trial inside the jail is not outside the purview of Section 465 of the Code. (Paras 54 and 57)

       (h) Code of Criminal Procedure, 1973 – Section 407 – So long as power can be and is exercised purely for administrative exigency without impinging upon an prejudicially affecting the rights or interests of the parties to any judicial proceeding it cannot be held that administrative powers must yield place to judicial powers simply because in a given circumstance they co-exist – Jail is an open court as long as there are no restrictions and his right to fair trial is not compromised. (Paras 58 and 61)

       (1995) 4 SCC 392; (2004) 4 SCC 158; (1966) 3 SCR 744; (1988) 3 SCC 609 – Relied upon

       ILR 1985 Delhi 388 – Cited with approval

       (i) Constitution of India – Articles 21 and 327 – Fair trial – The court in jail being an open court and there being no restriction for anybody to witness the trial in the jail, Article 21 is not violated. (Paras 65, 66 to 71 and 121)

       (1988) 3 SCC 609; (1982) 1 SCC 271; (1984) 1 SCC 43 : AIR 1984 SC 273; (1979) 77 L.G.R. 689 (1979); (2000) 7 SCC 129; (1969) 3 SCC 392 – Relied upon

       AIR 1917 Lah. 311; AIR (34) 1947 Allahabad 436; AIR (37) 1950 Madras 441; AIR (37) 1950 Madras 696; AIR (39) 1952 Calcutta 91; AIR 1952 Madhya Bharat 193 – Cited with approval

       (j) Code of Criminal Procedure, 1973 – Section 9(6) – The place of trial having not been changed, appellant did not have any statutory right of being heard before shifting the trial inside the jail – Moreover proceedings in the session’s court rendered practically impossible by supporters of the appellant – No violation of natural justice and no warrant for judicial review. (Paras 104 and 110)

       (1996) 3 SCC 364; (1971) A.C. 297; (1970) 2 Q.B. 417; (1967) 2 AC 337; (1966) 3 SCR 744; 384 U.S. 333 (1966); 478 U.S. 1 (1986); 6 Va. App. 132 (1988); 3 Va. App. 285 (1986); 83 Cal. App. 4th 772 (2000) – Relied upon

       36 P3d 500 (2001) – Referred

       (k) Judicial Review – Tests for interfering with administrative decisions on the ground of violation of audi alteram partem. (Para 120)

       (1971) 1 W.L.R. 1578 – Relied upon

       (l) Public trial – Crime is a wrong done more to the society than to an individual – It involves a serious invasion of rights and liberties of some other person or persons – The people are, therefore, entitled to know whether the justice delivery system is adequate or inadequate – When the State representing the society seeks to prosecute a person, the State must do it openly – However, the public and press do not have an independent right of access to pretrial proceedings. (Paras 131 and 134)

       (1913) A C 417; 65L Ed 2d 973 = (1980) 448 US 555; (1979) 443 U.S. 368; (1982) 457 US 596 : 73 L.Ed. 2d 248; (1966) 3 SCR 744; 333 U.S. at 266, 92 L Ed 682, 68 S Ct 499; 331 US 367, 91 L Ed 1546, 67 S Ct 1249 (1947); 381 U.S., 14 L Ed 2nd 543, 85 S Ct 1628 – Relied upon

       (m) Criminal Trial – Entire trial cannot vitiate by non-supply of the notification constituting the court in the jail. (Para 141)

       (1993) 4 SCC 727 – Relied upon

       (n) Criminal Trial – All criminal trials have to be public trials where public and press have complete access – However, in a case of extraordinary nature, the universal rule of open trial may not be adhered to – 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. (Para 142, 146 and 147)

       (1988) 3 SCC 609 – Relied upon

       Facts of the case:

       1.The appellant is aggrieved by the notification No.184A dated 20th May, 2006 whereby the Patna High Court in exercise of administrative powers conferred under sub-section (6) of section 9 of the Code of Criminal Procedure, 1973 has been pleased to decide that the premises of the District Jail, Siwan will be the place of sitting of the Court of Sessions for the Sessions Division of Siwan for the expeditious trial of Sessions cases pending against Md. Shahabuddin.

       2.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.

       3.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.

       Finding of the Court:

       1.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.

       2.The case in hand would fall in the category of those extraordinary and exceptional cases where in the interest of justice it became imperative to shift the venue of the trials.