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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.591 OF 2010. [Arising out of SLP (Crl.) No.1311 of 2008]

Md. Shahabuddin .. Appellant

Versus

State of Bihar & Others             .. Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. Leave granted.

2. This appeal is directed against the judgment of the High  

Court of Judicature at Patna passed in Criminal Writ Jurisdiction  

Case No.553 of 2006 dated 14.08.2007.

3. 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 (hereinafter referred  

to as “the Code”) 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.

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

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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’s administrative power of creating a  

court is not applicable for transferring a case from one court to  

another.  A new court with its own defined jurisdiction can be  

created for the public generally, or for specified class of cases  

generally but not for cases in which a particular citizen is  

involved.  The High Court missed the significance of the word  

‘ordinarily’ in Section 9(6) of the Code.

(c) That the administrative power of the High Court can only  

be exercised where the principle of audi alteram partem does not

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apply.  In all situations where an order affects the interests of  

a party in a pending case, this power is not available.  That  

power can only be exercised under section 408 of the Code after  

hearing  the  affected  parties.   It  is  settled  law  that  even  

administrative orders are subject to the rule of  audi alteram  

partem and by not hearing the appellant before transferring of  

the venue of cases had led to infringement of the fundamental  

rights  of  the  appellant  under  Articles  14  and  21  of  the  

Constitution.

(d) That the administrative power is not available merely to  

expedite the trial of a particular case.  Expedition is necessary  

for all cases.  The High Court did not act in the interest of  

expedition  but  really  for  terrorizing  witnesses  into  giving  

evidence which suited the prosecution.

(e) That the three notifications read together show that the  

action was taken by the State Government and the High Court has  

merely concurred with it.  All the three notifications are thus  

without jurisdiction and void.

7. Mr. Jethmalani has drawn our attention to the relevant  

part of Section 9(6) of the Code which reads as under:

“9. Court of Session.—  

x   x x

(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.”    

8. Mr. Jethmalani submitted that the power of changing the  

venue is vested exclusively with the High Court and the State

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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 offence;

(ii) that any particular, or appeal, or class of cases or  appeals,  be  transferred  from  a  Criminal  Court  subordinate to its authority to any other such Criminal  Court of equal or superior jurisdiction;

(iii)that any particular case be committed for trial of to a  Court of Session; or

(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:

Provided that no application shall lie to the High Court

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for  transferring  a  case  from  one  Criminal  Court  to  another  Criminal  Court  in  the  same  sessions  division,  unless  an  application for such transfer has been made to the Sessions Judge  and rejected by him.

(3) Every  application  for  an  order  under  sub-section  (1)  shall be made by motion, which shall, except when the applicant  is the Advocate-General of the State, be supported by affidavit  or affirmation.

(4) When such application is made by an accused person, the  High Court may direct him to executive a bond, with or without  sureties,  for  the  payment  of  any  compensation  which  the  High  Court may award under sub-section (7).

(5) Every accused person making such application shall give  to the Public Prosecutor notice in writing of the application,  together with a copy of the grounds on which it is made; and no  order shall be made on the merits of the application unless at  least-twenty-four hours have elapsed between the giving of such  notice and the hearing of the application.

(6) Where the application is for the transfer of a case of  appeal from any subordinate Court, the High Court may, if it is  satisfied  that it  is necessary  so to  do in  the interests  of  justice, order that, pending the disposal of the application, the  proceedings in the subordinate Court shall be stayed, on such  terms as the High Court may think fit to impose:

Provided that such stay shall not affect the subordinate  Court’s power of remand 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

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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  the  real  sense  of  the  term  as  it  is  not  based  on  any  characteristics which are peculiar to persons or to cases which  are to be subject to the special procedure prescribed by the Act.  The mere fact of classification is not sufficient to relieve a  statute from the reach of the equality clause of Article 14. To  get  out  of  its  reach  it  must  appear  that  not  only  a  classification has been made but also that it is one based upon a  reasonable  ground  on  some  difference  which  bears  a  just  and  proper relation to the attempted classification and is not a mere  arbitrary  selection.  Persons  concerned  in  offences  or  cases  needing so-called speedier trial are entitled to inquire "Why are  they being made the subject of a law which has short-circuited  the normal procedure of trial; why has it grouped them in that  category and why has the law deprived them of the protection and  safeguards which are allowed in the case of accused tried under  the  procedure  mentioned  in  the  Criminal  Procedure  Code;  what  makes the legislature or the executive to think that their cases  need speedier trial than those of others like them?"  

12. He further contended that the West Bengal Special Act,  

1950 (Special Act) gives special treatment because they need it  

in  the  opinion  of  the  provincial  government;  in  other  words,  

because such is the choice of their prosecutors. This answer is  

neither rational nor reasonable. The only answer for withholding  

from such person the protection of Article 14 of the Constitution  

that could reasonably be given to these inquiries would be that  

"Of all other accused persons they are a class by themselves and  

there is a reasonable difference between them and those other  

persons who may have committed similar offences." They could be  

told that the law regards persons guilty of offences against the  

security  of the  State as  a class  in themselves.  The Code  of  

Criminal  Procedure  has  by  the  process  of  classification

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prescribed different modes of procedure for trial of different  

offences. Minor offences can be 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 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 Justice is open to  

every subject of the King."  (Ref.: Scott & Anr. v. Scott  (1913)  

A C 417). Publicity is the authentic hall-mark of judicial as  

distinct  from  administrative  procedure,  and  it  can  be  safely  

hazarded that the trial of a divorce suit, a suit not entertained  

by  the  old  Ecclesiastical  Courts  at  all,  is  not  within  any

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exception.

15. Mr. Jethmalani placed strong reliance on the observation  

of the US Supreme Court in  Richmond Newspapers, Inc. et al v.  

Commonwealth of Virginia et al 65L Ed 2d 973 = (1980) 448 US 555.  

One of the most conspicuous features of English justice, that all  

judicial trials are held in open court, to which the public have  

free access, . . . appears to have been the rule in England from  

time immemorial. This was mentioned by F. Pollock, The Expansion  

of the Common Law 31-32 (1904).  [See also: E. Jenks, The Book of  

English Law 73-74 (6th ed 1967)].  

16. The  learned  senior  counsel  for  the  appellant  further  

relied  upon  the  following  passages  of  the  Richmond’s  case  

(supra):  

17. (Page 983)  In some instances, the openness of trials  

was explicitly recognized as part of the fundamental law of the  

Colony. The 1677 Concessions and Agreements of West New Jersey,  

for example, provided:

"That in all public courts of justice for trials of causes, civil  or  criminal,  any  person  or  persons,  inhabitants  of  the  said  Province may freely come into, and attend the said courts, and  hear and be present, at all or any such trials as shall be there  had or passed, that justice may not be done in a corner nor in  any covert manner." [Reprinted in Sources of Our Liberties 188  (R. Perry ed.1959). See also 1 B. Schwartz, The Bill of Rights: A  Documentary History 129 (1971).]  

18. (Page 985)  Jeremy Bentham not only recognized the  

therapeutic  value  of  open  justice  but  regarded  it  as  the  

keystone:

"Without  publicity,  all  other  checks  are  insufficient:  in  comparison of publicity, all other checks are of small account.  Recordation,  appeal,  whatever  other  institutions  might  present  themselves in the character of checks, would be found to operate

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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 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  history,  

supported by reasons as valid today as in centuries past, we are  

bound to conclude that a presumption of openness inheres in the  

very nature of a criminal trial under our system of justice. This  

conclusion  is  hardly  novel;  without  a  direct  holding  on  the  

issue, the Court has voiced its recognition of it in a variety of  

contexts over the years.

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22. (Page 999)  This Court too has persistently defended  

the  public  character  of  the  trial  process.  In  re  Oliver  

established  that  the  Due  Process  Clause  of  the  Fourteenth  

Amendment forbids closed criminal trials. Noting the "universal  

rule against secret trials," 333 U.S. at 266, 92 L Ed 682, 68 S  

Ct 499, the Court held that

"In  view  of  this  nation's  historic  distrust  of  secret  proceedings, their inherent dangers to freedom, and the universal  requirement of our federal and state governments that criminal  trials be public, the Fourteenth Amendment's guarantee that no  one shall be deprived of his liberty without due process of law  means, at least, that an accused cannot be thus sentenced to  prison." Id., at 273, 92 L Ed 682, 68 S Ct 499.

23. (Page  1000)  Tradition,  contemporaneous  state  practice,  

and this Court's own decisions manifest a common understanding  

that "[a] trial is a public event. What transpires in the court  

room is public property." Craig v. Harney, 331 US 367, 374, 91 L  

Ed 1546, 67 S Ct 1249 (1947).  

24. (Page 1000-1001) Publicity serves to advance several of  

the particular purposes of the trial (and, indeed, the judicial)  

process. Open trials play a fundamental role in furthering the  

efforts of our judicial system to assure the criminal defendant a  

fair and accurate adjudication of guilt or innocence. [See, e.g.,  

Estes v. Texas, 381 U.S., at 538-539, 14 L Ed 2nd 543, 85 S Ct  

1628]. But, as a feature of our governing system of justice, the  

trial  process  serves  other,  broadly  political,  interests,  and  

public access advances these objectives as well. To that extent,  

trial access possesses specific structural significance.

25. (Page  1001)  Secrecy  is  profoundly  inimical  to  this  

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

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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.  Indira  Gandhi  and  that  cannot  be  

compared with the present situation.  He placed reliance on the  

following paragraph:

‘204. In Naresh Shridhar Mirajkar v. State of Maharashtra (1966)  3 SCR 744 this Court had an occasion to consider the validity of  a judicial verdict of the High Court of Bombay made under the  inherent  powers.  There  the  learned  Judge  made  an  oral  order  directing the press not to publish the evidence of a witness  given in the course of proceedings. That order was challenged by  a journalist and others before this Court on the ground that  their fundamental rights guaranteed under Article 19(1)(a) and  (g) have been violated. Repelling the contention, Gajendragadkar,  C.J., speaking for the majority view, said: (SCR pp. 760-61)

“The argument that the impugned order affects the fundamental  rights  of  the  appellants  under  Article  19(1),  is  based  on  a  complete misconception about the true nature and character of  judicial  process  and  of  judicial  decision.  .  .  .  But  it  is  singularly  inappropriate  to  assume  that  a  judicial  decision  pronounced by a judge of competent jurisdiction in or in relation  to a matter brought before him for adjudication can affect the  fundamental rights of the citizens under Article 19(1). What the

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judicial decision purports to do is to decide the controversy  between the parties brought before the court and nothing more. If  this basic and essential aspect of the judicial process is borne  in mind, it would be plain that the judicial verdict pronounced  by court in or in relation to a matter brought before it for its  decisions  cannot  be  said  to  affect  the  fundamental  rights  of  citizens under Article 19(1).”

28. Mr. Jethmalani also placed reliance on  Union of India &  

Another v. Tulsiram Patel & Others  (1985) 3 SCC 398 para 92 in  

which this Court relied on E. P. Royappa v. State of Tamil Nadu  

(1974) 4 SCC 3.  Para 85 of the said judgment reads as under:

“...  Article 14  is the  genus while  Article 16  is a  species.  Article  16  gives  effect  to  the  doctrine  of  equality  in  all  matters relating to public employment. The basic principle which,  therefore,  informs  both  Articles  14  and  16  is  equality  and  inhibition against discrimination. Now, what is the content and  reach of this great equalising principle? It is a founding faith,  to use the words of Bose, J., ‘a way of life’, and it must not be  subjected  to  a  narrow  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  for  State  action,  as  distinguished from motive inducing from the antechamber of the  mind,  is  not  legitimate  and  relevant  but  is  extraneous  and  outside the area of permissible considerations, it would amount  to mala fide exercise of power and that is hit by Articles 14 and  16. Mala fide exercise of power and arbitrariness are different  lethal  radiations  emanating  from  the  same  vice:  in  fact  the  latter comprehends the former. Both are inhibited by Articles 14  and 16.” (emphasis supplied)

29. Mr. Jethmalani further placed reliance on the following

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paragraph:

“93. Bhagwati, J., reaffirmed in Maneka Gandhi case (1978) 1 SCC  248 what he had said in Royappa case (supra) in these words (at  pp. 673-74): (SCC p. 283, para 7):

“Now,  the  question  immediately  arises  as  to  what  is  the  requirement of Article 14: what is the content and reach of the  great equalising principle enunciated in this article? There can  be no doubt that it is a founding faith of the Constitution. It  is indeed the pillar on which rests securely the foundation of  our democratic republic. And, therefore, it must not be subjected  to  a  narrow,  pedantic  or  lexicographic  approach.  No  attempt  should be made 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 imprisoned within traditional and doctrinaire limits.  We must reiterate here what was pointed out by the majority in  E.P. Royappa v.  State of T.N. namely, that 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. Article 14 strikes at arbitrariness in State action  and ensures fairness and equality of treatment. The principle of  reasonableness, which legally as well as philosophically, is an  essential  element  of  equality  or  non-arbitrariness  pervades  Article 14 like a brooding omnipresence ....”   (emphasis supplied)

30. In the said judgment, Bhagwati, J., further observed (at  

pp. 676-77): (SCC p. 286, para 10)

“Now, if this be the test of applicability of the doctrine of  natural justice,  there can be no distinction between a quasi- judicial  function  and  an  administrative  function  for  this  purpose. The aim of both administrative inquiry as well as quasi- judicial 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  quasi- judicial 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)

14

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:  

“166.  It  is  well  settled  that  even  if  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.

167.  An  order  impounding  a  passport  must  be  made  quasi- judicially. This was not done in the present case. It cannot be  said  that  a  good  enough  reason  has  been  shown  to  exist  for  impounding the passport of the appellant. The appellant had no  opportunity of showing that the ground for impounding it given in  this Court either does not exist or has no bearing on public  interest or that the public interest can be better served in some  other  manner.  The  order  should  be  quashed  and  the  respondent  should be directed to give an opportunity to the appellant to  show cause against any proposed action on such grounds as may be  available.

168. Even executive authorities when taking administrative action  which  involves  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.”

32. Reliance  was  also  placed  on  D.K.  Yadav  v.  J.M.A.  

Industries Ltd. (1993) 3 SCC 259, wherein vide para 10, the court  

observed thus:  

“10. In  State of W.B. v.  Anwar Ali Sarkar AIR 1952 SC 75 per  majority, a seven-Judge Bench held that the rule of procedure  laid down by law comes as much within the purview of Article 14  of the Constitution as any rule of substantive law. In  Maneka  Gandhi v. Union of India (1978) 1 SCC 248 another Bench of seven  Judges held that the substantive and procedural laws and action  taken under them will have to pass the test under Article 14. The  test of reason and justice cannot be abstract. They cannot be  divorced  from the  needs of  the nation.  The tests  have to  be  pragmatic  otherwise  they  would  cease  to  be  reasonable.  The

15

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 setting  aside of the dismissal order in this proceeding itself because  what  has  been  stated  in  ECIL  case (1993)  4  SCC  727  in  this  context  would  nonetheless  apply.  This  is  for  the  reason  that  violation of natural justice which was dealt with in that case,  also  renders  an  order  invalid  despite  which  the  Constitution  Bench did not concede that the order of dismissal passed without  furnishing copy of the inquiry officer’s report would be enough  to set aside the order.  ………”

34. Mr. Ranjit Kumar, learned senior counsel appearing for  

the State submitted that the appellant is involved in a large  

number of criminal cases, the details of which are as under:

“(i) Session Trial No. 287/2007 (ii) Session Trial No. 441/2006 (iii)Session Trial No. 419/2006 (iv) Siwan Town P.W. Case No. 11/2001 (v) Ander P.S. case – 41/1999 (vi) Ander P.S. case – 10/1998 (vii)Siwan Muffassil case no. 61/1990 (viii)Session Trial No. 99/1997; and (ix) Session Trial No. 63/2004”

35. Mr. Kumar also submitted that even by transferring the  

trial, no prejudice whatsoever has been caused to the appellant.  

He submitted that the venue is just one kilometer away from the

16

Sessions  Court,  therefore,  no  inconvenience  or  prejudice  is  

caused  to  any  one.   No  one  has  been  denied  entry.   On  the  

contrary,  a  large  number  of  advocates  and  press  people  have  

attended the hearings and they have been regularly reporting this  

matter.  He also referred to the notification dated 20th May, 2006  

issued by the Patna High Court by which trial pending against the  

appellant has been expedited.  The notification reads as under:

“No.184A:- In exercise of powers conferred under sub-section (6)  of Section 9 of the Criminal Procedure Code, 1973, the High Court  has been pleased to decide that the premises of the District  Jail, Siwan will be the place of sitting of Court of Sessions for  the Sessions Division of Siwan for expeditious trial of sessions  cases pending against Md. Sahabuddin.

By Order of the High Court Sd/-

Registrar General

Memo No.5146-49 dated, Patna the 20th May, 2006.

Copy  forwarded  to  the  District  and  Sessions  Judge,  Siwan/The Chief Judicial Magistrate, Siwan/ The Secretary to the  Government  of  Bihar,  Law  (Judicial)  Department,  Patna/The  Secretary to the Government of Bihar, Department of Personnel and  Administrative  Reforms,  Patna  for  information  and  necessary  action.

By Order of the High Court 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.

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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 pertinent to recapitulate the same as  

under:

“ xxx xxx xxx

(a) That  on  03.5.1996  the  petitioner  along  with  his  associates fired upon the then Superintendent of Police, Shri S.  K. Singhal, IPS with sophisticated arms.  In this case, bearing  S.T. No. 320/2001, the petitioner and his two associates have  been found guilty and sentenced to undergo rigorous imprisonment  for 10 years.

(b) That during a raid conducted on 16.03.2001 in the  house  of  the  petitioner,  the  accused-petitioner  and his private army fired upon the raiding party  and  burnt  the  vehicles  of  the  Deputy  Inspector  General  of  Police,  Saran  Range,  District  Magistrate  Siwan  and  Superintendent  of  Police  Siwan.    These  criminals  fired  more  than  100  rounds of ammunition from arms including AK 47 and  AK  56  etc.   In  that  firing,  one  constable  was  killed  and  several  constables  were  injured.  In  this  raid,  huge  quantity  of  ammunitions  were  recovered from the house of the accused.  An FIR  bearing Case No. 32 of 2001 was registered in the  Hussainganj Police Station.”

(c) That in another raid conducted in 2005 on the order of  the Bihar Military Force-I, a large number of arms and ammunition  and other articles were recovered from the house of the accused.  Pursuant to this raid, an FIR bearing Case Nos. 41 to 44/2005 was  registered in the Hussainganj Police Station.

(d) That  when  the  petitioner  was  being  shifted  from  Siwan  Jail to Beur Jail Patna pursuant to his arrest on 10.02.2005, the  petitioner did not sit in the vehicle of the Jail Administration  and forcibly sat in a private vehicle.  He first visited his  village home at Pratapur in flagrant violation of the directions  of the jail administration and the police escort party. All along

18

the way he did as he chose and before finally arriving at the  Beur Jail Patna, he even visited his relative and minister Sh.  Izazul  Haq  at  the  government  quarter.   Resistance  of  the  escorting police party were brushed aside by threatening them  with dire consequences and use of brute force to carryout the  above illegal acts.

(e) That in Sessions Trial No. 63 of 2002 accused and his  gang fired upon Munna Choudhary.  He was kidnapped in injured  conditions and was thereafter killed and his body was disposed  off.  Such was the terror of the accused person that when the  case was tried in the general court, 21 prosecution witnesses  including the parents 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 more than 16 cases, one after the other.

(g) That prior to the constitution of the Court in the jail  premises,  when  the  petitioner  was  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 about  one kilometer away from Siwan Jail, on the dates fixed for his  appearance.   Perusal of the order sheet of 9 cases which are  undergoing trial in the Court shows that on only 24% occasions,  the petitioner co-operated and got himself produced in the trial  courts situated in court campus Siwan.  On 76% occasions, he did  not cooperate and consequently could not be produced from the  Jail before the various trial courts.  It is apparent that in  most of them, the petitioner appeared before the Trial Court only  once, at the time of remand or when he surrendered before the  Court  for  getting  himself  remanded  in  the  case.   On  several  subsequent occasions, on one pretext or the other, he did not  appear before the concerned court despite being in Siwan Jail.”

19

38. It is also incorporated in the counter affidavit filed by  

the State that by the criminal acts of the appellant reign of  

terror had spread.  The appellant has also earned enemies who  

would like to seize upon an opportunity and endanger his life if  

the  trial  is  conducted  in  general  court.   Simultaneously,  

criminals owing allegiance to the appellant are likely to create  

law and order problem including communal tension and endanger the  

life of the common public during his trial in general court.   

39. It is further incorporated in the counter affidavit that  

in view of the aforementioned background and after assessing the  

entire situation, the then District Magistrate, Siwan informed  

the State Government that trial is not possible in the District  

Court  of  Siwan  against  the  accused  person.   Pursuant  to  the  

report of the District Magistrate, the Law Secretary, Government  

of Bihar made a request to the Patna High Court for designation  

of Court of Sessions and Court of Judicial Magistrate, 1st Class  

inside the Siwan Jail Premises for expeditious trial of the cases  

pending against the appellant.  After evaluating and assessing  

the entire situation, the notification was issued by the Patna  

High Court as also by the State Government with the consultation  

of Patna High Court for sitting and establishment of courts for  

expeditious trial of 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

20

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 inside the Jail  

was  created  by  the  High  Court  through  its  Notification  dated  

20.05.2006.  Since the jail premises did not belong to the High  

Court, the State of Bihar issued two Notifications dated 7.6.2006  

to facilitate the smooth functioning of the said court which had  

been  created  by  the  High  Court.  In  any  case,  the  

administrative/statutory orders made by the High Court are given  

effect  to  by  the  State  Government  (e.g.  appointments,  

terminations, dismissals, retirements etc.)

44. Mr. Kumar further contended that the Sessions Court was  

created by the State and not by the High Court is contrary to the  

record.  The notification dt.7.6.2006 makes it clear that it was  

issued in pursuance to Notification No.184A dated 20.5.2006 of  

the Patna High Court.

45. Mr. Kumar also brought to the attention of the court that  

the appellant has faced trials in 43 cases before the Magistrates  

and  the  Sessions’  Courts.   Out  of  the  30  cases  before  the  

Magistrates, he has been convicted in 3 and acquitted in 1 and 26  

remaining cases are pending.  Out of the 13 cases before the  

Sessions, he has been convicted in 3, acquitted in 3 and 7 cases

21

are still pending.   

46. Mr. Kumar also contended that the Court premises inside  

the Jail are open to all.  The appellant is being represented  

through 38 lawyers.  Apart from all his lawyers and every other  

person wanting to attend has been allowed to do so.  The press  

and  the  public  have  also  been  allowed  entry.   In  fact,  the  

appellant and his supporters had objected to the presence of the  

reporters.  Therefore, the allegation of denial of a fair and  

open trial is devoid of any substance.

47. Mr.  Kumar  further  submitted  that  the  appellant  is  a  

notorious criminal and it is virtually impossible to hold his  

trials in the normal court premises.  The atmosphere of terror  

let loose by the appellant and his supporters had jeopardized the  

functioning of the court warranting trials of his cases inside  

the jail.  The Superintendent of Police formed an opinion and  

forwarded it to the District Magistrate.  The State drew the  

attention of the High Court and the High Court decided to act on  

it.   There  is nothing  sinister or  clandestine in  this.  The  

opening and the closing lines of the opinion forwarded by the  

Superintendent  of  Police  of  the  District  to  the  District  

Magistrate speak of the 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

22

‘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 notification to give effect to the  

transfer to Siwan of one Shri Gyaneshar Singh  

as Additional and District Sessions Judge in  

the  Court  being  constituted  inside  the  

District Jail, Siwan for expediting the trial  

for sessions case pending for trail against  

the appellant.

b. Letter No.5138 dated 20th May, 2006 was sent  

to the Law Secretary as a copy of the letter  

at Sl.No.1.

c. Letter  No.5139  was  addressed  to  the  

Secretary,  Law  Department  by  the  Registrar  

General dated 20th May, 2006 informing that  

the  High  Court  had  considered  the  matter  

regarding establishment of a Special Court of  

Judicial Magistrate, First Class inside the  

District  Jail,  Siwan  and  expedite  the

23

proposal  of  the  State  Government  for  such  

establishment  for  trial  of  cases  pending  

against the appellant.

d. Letter No.5140 dated 20th May, 2006 was a copy  

of the aforesaid letter at Sl.No.3 forwarded  

to the Secretary, Department of Personnel and  

Administrative  Reforms  for  information  and  

necessary action.

e. Letter No.5141 of 20th May, 2006 was written  

to  the  Secretary,  Government  of  Bihar,  

Department  of  Personnel  and  Administrative  

Reforms requesting that Shri Vishwa Vibhuti  

Gupta, Judicial Magistrate First Class, Siwan  

designated  as  presiding  officer  of  the  

Judicial  Magistrate  First  Class  being  

constituted inside the District Jail, Siwan  

for expeditious trial of pending cases of the  

appellant.

f. The Letter No.5142 of 20th May, 2006 being the  

copy of the letter at Sl.No.5 was sent to the  

Secretary  (Law),  Judicial  Department  for  

information and necessary action.   

g. Letter  No.5143  dated  20th May  2006  was  

addressed by the High Court to the Secretary  

(Law), Judicial Department informing that the  

High Court having considered the matter was  

pleased to accept the proposal of the State  

Government  for  establishment  of  a  special  

court  of  Additional  District  and  Sessions  

Judge  inside  the  District  Jail,  Siwan  for  

expeditious  trial  of  cases  against  the

24

appellant.  

h. Letter No.5144 dated 20th May 2006 being the  

copy of letter at Sl.No.7 was sent by the  

High  Court  to  the  Secretary,  Department  of  

Personnel  and  Administrative  Reforms  for  

information and necessary action.

i. Letter No.5145 dated 20th May, 2006 was sent  

by the Registrar General of the High 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 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

25

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 State Government on 7th June, 2006 respectively and  

also culminated in the Notification of the 20th May 2006 being  

gazetted on 16th August, 2006.  There is, therefore, no scope for  

any  person,  leave  alone  the  appellant,  to  contend  that  the  

decision was not of the High Court or High Court never applied  

its mind.

53. Learned counsel for the State further submitted that the  

argument that Section 462 of the Code only deals with a wrong  

court and not a wrong place is untenable.  A reading of Section  

462 categorically shows that the title of the section speaks of  

proceedings in wrong place but the substantive portion of the  

Section speaks of the wrong  Sessions Division, District, Sub-

Division or other local area, unless it appears that such an  

error in fact occasioned a failure of justice.

54. The decision rendered in State of Karnataka v. Kuppuswamy  

Gownder & Others  (1987) 2 SCC 74 placed before the Court fully  

demolishes the contention of the appellant.  Further, in any case  

the court of the Sessions Division within the compound of the  

Siwan Jail is not a wrong place for the purpose of holding the  

trial.  The same has been duly notified.  

55. The  argument  qua  Section  465  Cr.P.C.  that  the  

notification dated 20th May, 2006 saying “other proceedings before  

and during the trial” and therefore, section 465 would not apply  

is totally devoid of any merit.  Firstly, as per the admission of  

the  appellant  himself,  judicial  proceedings  against  him  had  

started in several cases and trials were going on, and therefore,  

it would come within the purview of words ‘before or during the  

trial’.   The  emphasis  of  the  State  is  on  ‘during  trial’.  

Secondly, the words ‘other proceedings before and during trial”

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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 and the notification is 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,  therefore,  in  other  

proceedings  during  the  trial  would  clearly  come  within  the  

purview of Section 465 of the 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 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  inside  the  jail  is  not  outside  the  purview  of  

Section 465 of the Code.  It would come within the meaning of

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other proceedings as explained above during a trial, because as  

per the admission of the appellant the trial has already been  

started.

58. The  argument  qua  exercise  of  power  for  transfer  of  

proceedings could only be done under Section 407 of the Code  

after giving adequate opportunity of hearing to the appellant has  

been answered against the appellant by this court in Ranbir Singh  

v. State of Bihar (1995) 4 SCC page  

392.  In para 13 it has been specifically said -   

"We are unable to share the above view of Mr. Jethmalani. 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 we  do not find any reason to hold that administrative powers must  yield  place  to  judicial  powers  simply  because  in  a  given  circumstance they co-exist. On the contrary, the present case  illustrates  how  exercise  of  administrative  powers  were  more  expedient,  effective  and  efficacious.  If  the  High  Court  had  intended  to  exercise  its  judicial  power  of  transfer  invoking  Section  407 of the Code it would have necessitated compliance  with all the procedural formalities thereof, besides providing  adequate opportunity to the parties of a proper hearing which,  resultantly, would have not only delayed the trial but further  incarceration of some of the accused, it is obvious, therefore,  that  by  invoking  its  power  of  superintendence,  instead  of  judicial powers, the High Court not only redressed the grievances  of the accused and other connected with the trial but did it with  utmost dispatch.” 59. Mr.  Kumar  placed  reliance  on  the  case  of  Zahira  

Habibullah  H.  Shaikh  &  Another  v.  State  of  Gujarat  &  Others  

(2004) 4 SCC 158, particularly on Para 36 of the judgment.  The  

relevant portion of Para 36 of the judgment reads as under:

“36. ……………..Each one has an inbuilt right to be dealt with  fairly in a criminal trial. Denial of a fair trial is as much  injustice to the accused as is to the victim and the society.  Fair  trial  obviously  would  mean  a  trial  before  an  impartial  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

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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 restrictions and right of the accused to fair trial  

is not compromised.  The concept of open court is where there is  

access of every one.

62. He placed reliance on a Division Bench judgment of the  

Delhi High Court in Ranjit Singh v. Hon’ble the Chief Justice &  

Others ILR 1985 Delhi 388.  In this case, the court held that  

when the notification is issued by the High Court, then there is  

no necessity of issuing notice to the accused before passing an  

order  to  fix  a  place  of  holding  the  trial.    The  relevant  

observation made by the Division Bench reads as under:

“7. ……….Surely, it is a reasonable presumption to hold  that when the Full Court exercised its power, like in the present  case, directing that the Court of Session may hold its sitting at  a place other than its ordinary place of sitting considerations  of the interest of justice, expeditious hearing of the trial and  the requirement of a fair and open trial are the considerations  which have weighed with the High Court in issuing the impugned  notification.  It should be borne in mind that very rarely does  the High Court exercise its power to direct any particular case  to be tried in jail.  When it does so it is done only because of  overwhelming consideration of public order, internal security and  a realization that holding of trial outside jail may be held in  such a surcharged atmosphere as to completely spoil and vitiate  the Court atmosphere where it will not be possible to have a  calm, detached and fair trial.  It is these considerations which

29

necessitated the High Court to issue the impugned notification.  Decision is taken on these policy considerations and the question  of giving a hearing to the accused before issuing a notification  is totally out of place in such matters.  These are matters which  evidently  have  to  be  left  to  the  good  sense  and  to  the  impartiality  of  the  Full  Court  in  taking  a  decision  in  a  particular case……….”

63. Mr.  Kumar  also  placed  reliance  on  the  case  of  Naresh  

Shridhar Mirajkar (supra). In this case, the court emphasized the  

importance of public trial, but at the same time noted that they  

cannot overlook the fact that the primary function of judiciary  

is to do justice between the parties and that it was difficult to  

accede to the proposition that there can be no exception to the  

rule that all cases must 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 proviso which reads:

Provided that the court of Sessions may hold, or the High Court  may, direct the Court of Session to hold, its sitting in any  particular case at any place in the sessions division, where it  appears  expedient  to  do  so  for  considerations  of  internal  security or public order, and in such cases, the consent of the  prosecution and accused shall not be necessary.

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22.  But it is certain that if this proviso is not on the  statute book applicable to Delhi, it can not be used as the High  Court has used to interpret it. That apart, if we look at the  notification from a different angle the contention advanced by  the learned Counsel for the appellants ceases to have any force.  Whatever be the terms of the notification, it is not disputed  that it is a notification issued by the Delhi High Court under  Section 9 Sub-clause (6) Cr.P.C. and thereunder the High Court  could do nothing more or less than what it has the authority to  do. Therefore, the said notification of the High Court could be  taken to have notified that Tihar Jail is also one of the places  of  sitting  of  the  Sessions  Court  in  the  Sessions  division  ordinarily. That means apart from the two places Tis Hazari and  the New Delhi, the High Court by notification also notified Tihar  Jail as one of the places where ordinarily a Sessions Court could  hold its sittings. In this view of the matter, there is no error  if  the  Sessions  trial  is  held  in  Tihar  Jail  after  such  a  notification has been issued by the High Court.”

65. The question regarding Article 21 of the Constitution was  

also dealt with by this Court.  The relevant para 23 of the  

judgment reads as under:

“23. The next main contention advanced by the counsel for the  appellants is about the nature of the trial. It was contended  that under Article 21 of the Constitution a citizen has a right  to an open public trial and as by changing the venue the trial  was shifted to Tihar Jail, it could not be said to be an open  public trial. Learned counsel also referred to certain orders  passed  by  the  trial  court  wherein  it  has  been  provided  that  representatives of the Press may be permitted to attend and while  passing those orders the learned trial Judge had indicated that  for  security  and  other  regulations  it  will  be  open  to  Jail  authorities to regulate the entry or issue passes necessary for  coming to the 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

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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 public.”

66. In this case, the Court dealt with Section 327 Cr.P.C.  

which reads as under:

“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, of 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 or 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 376-A, Section 376-B, Section 376-C or Section 376-D of  the Indian Penal Code 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  per: son to have access to, or be or remains in, the room or  building used by the court.  

(3) Where any proceedings are held under Sub-section (2) it shall  not be lawful for any person to print or publish any matter in  relation  to  any  such  proceedings,  except  with  the  previous  permission of the court.”

67. On analysis of Section 327 Cr.P.C., this Court observed  

as under:

“…….So far as this country is concerned the law be very  clear that as soon as a trial of a criminal case is held whatever  may be the place it will be an open trial. The only thing that it  is necessary for the appellant is to point out that in fact that  it was not an open trial. It is not disputed that there is no  material at all to suggest that any one who wanted to attend the  trial was prevented from so doing or one who wanted to go into  the Court room was not allowed to do so and in absence of any  such material on actual facts all these legal arguments loses its  significance. The authorities on which reliance were placed are  being dealt with elsewhere in the judgment.”

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68. In  the  concurring  judgment,  Ray,  J.  has  specifically  

dealt 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,  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 access of the public in  general, or any particular person in particular in the room or  building where the trial is held. In some cases trial of criminal  case  is  held  in  court  and  some  restrictions  are  imposed  for  security reason regarding entry into the court. Such restrictions  do not detract from trial in open court. Section 327 proviso  empowers the Presiding Judge or Magistrate to make order denying  entry of public in court. No such order had been made in this  case denying access of members of public to court.”

69. Ray, J. has also dealt with Indian, English and American  

cases.  He placed reliance on a judgment of this Court in Naresh  

Shridhar  Mirajkar (supra).  The  relevant  passage  of  the  said  

judgment which was relied on by Ray, J. is set out as under:

“While  emphasizing  the  importance  of  public  trial,  we  cannot  overlook the fact that the primary function of the judiciary is  to do justice between the parties who bring their causes before  it. If a judge trying a cause is satisfied that the very purpose  of finding truth in the case would be retarded, or even defeated  if witnesses are required to give evidence subject to pubic gaze,  is it or is it not open to him in exercise of his inherent power  to  hold  the  trial  in  camera  either  partly  or  fully?  If  the  primary function of the trial is to do justice in causes brought  before it, then on principle, it is difficult to accede to the  proposition that there can be no exception to the rule that all

33

causes must be tried in open court. If the principle that all  trials  before  courts  must  be  held  in  public  was  treated  as  inflexible and universal and it is held that it admits of no  exceptions  whatever,  cases  may  arise  whereby  following  the  principle, justice itself may be defeated. That is why we feel no  hesitation  in  holding  that  the  high  Court  has  inherent  jurisdiction to hold a trial in camera if the ends of justice  clearly  and  necessarily  require  the  adoption  of  such  a  course…..... In this connection it is essential to remember that  public trial of causes is a means, though important and valuable,  to ensure fair administration 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 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 rights under our Constitution as it is under the 6th  Amendment of the American Constitution which secures to persons  charged with crimes a public, as well as a speedy, trial. Even  under the American Constitution, the right guaranteed by the 6th  Amendment is held to be personal to the accused, which the public  in general cannot share. Considering the nature of the inquiry  which the Advisory Board has to undertake, we do not think that  the interest of justice will be served better by giving access to

34

the public to the proceedings of the Advisory Board.”   

73. Reliance was placed on the case of Sahai Singh v. Emperor  

AIR 1917 Lah. 311.  In this case, the conviction of the accused  

was challenged on the ground that the whole trial is vitiated  

because it was held in the jail.  In this case, the Court held  

that, “there is nothing to show that admittance was refused to  

anyone  who  desired  it,  or  that  the  prisoners  were  unable  to  

communicate  with  their  friends  or  counsel.   No  doubt,  it  is  

difficult  to get  counsel to  appear in  the jail  and for  that  

reason, if for no other, such trials are usually undesirable, but  

in this case the Executive Authorities were of the opinion that  

it would be unsafe to hold the trial elsewhere.”

74. In  Kailash Nath Agarwal & Another v.  Emperor AIR (34)  

1947 Allahabad 436, the Allahabad High Court has taken the view  

that  there  is  no  inherent  illegality  in  jail  trials  if  the  

Magistrate follows the rules of Section 352 which is equivalent  

to Section 327(1) of the new Code.

75. In re M. R. Venkataraman AIR (37) 1950 Madras 441, the  

Court  came  to  the  conclusion  that  the  trial  is  not  vitiated  

because it was held in jail.

76. In re T. R. Ganeshan AIR (37) 1950 Madras 696, the High  

Court upheld the validity of the jail trial.

77. In  Prasanta Kumar Mukerjee v.  The State AIR (39) 1952  

Calcutta 91 and  Narwarsingh & Another  v.  State AIR 1952 Madhya  

Bharat 193, the High Court recognized the right of the Magistrate  

to hold court in jail for reasons of security for accused, for  

witnesses  or  for  the  Magistrate  himself  or  for  other  valid  

reasons.

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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 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 his  

supporters might disturb public peace in the court premises and  

nearby areas and could commit murder and/or create other serious  

law and order problems.  The people of Siwan got frightened on  

the mere mention of name of Mohd. Shahabuddin.  In view of orders  

passed  by  the  High  Court,  competent  Court  may  be  moved  for  

constituting Special Court in Siwan Jail.

80. Mr.  Parekh  submitted  that  the  District  Magistrate  

concurred with the report of the Superintendent of Police, Siwan

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and wrote to the Home Secretary, Bihar.  While referring to the  

Superintendent of Police’s letter dated 8.5.2006, the District  

Magistrate requested that necessary action may kindly be taken  

for construction of Court rooms in District Jail for quick trial  

of cases relating to the appellant.   

81. Mr. Parekh also brought to our attention that the Law  

Secretary, Government of Bihar vide letter No. 361/C/2006 dated  

9th May, 2006 wrote to the Registrar General of Patna High Court  

by enclosing a photocopy of letters of Superintendent of Police,  

Siwan and District Magistrate, Siwan both dated 8.5.2006.  He  

stated that Md. Shahabuddin is a high profile M.P. from Siwan  

having criminal antecedents, since reportedly facing prosecution  

in more than forty cases.   His physical production in the court  

during trial may be a source of menace to the public peace and  

tranquility,  besides  posing  a  great  threat  to  the  internal  

security  extending  other  prosecution  witnesses  and  prosecutors  

too.  That apart, it may have adverse impact on inside Court  

working condition making the situation surcharged during trial.  

It was likely to impair inside court room working culture which  

in the ultimate analysis may have fallout on the administration  

of criminal justice.  To promote efficient conducting of trial as  

also  to  strengthen  its  efficacy,  therefore,  the  trial  of  Md.  

Shahabuddin inside District Jail, Siwan by proposed especially  

constituted courts seems to be an imperative need of the time.  

Accordingly, he requested that the Patna High Court may be moved  

to constitute Special Courts for the 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

37

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  for  

expeditious trial of the cases pending against Mohd. Shahabuddin  

and for notifying Siwan Jail a place for shifting of Sessions  

Court and Magisterial Court inside the jail for trial of such  

cases”.  Accordingly,  a  decision  was  taken  by  the  Standing  

Committee, which is as under:

“Upon due deliberation and consideration of the letters received  from the Law Secretary, 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  Courts of Sessions and one Court of Judicial Magistrate for  trying the cases triable by the  Court of Maigistrate, 1st Class.  The  matter  of  posting  of  the  Officers  i.e.  ADJ  and  Judicial  Magistrate,  1st Class,  the  matter  be  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

38

Jail premises be notified as a place of sitting of Sessions Court  and Magisterial Court under provisions of Section 9(6) of the  Criminal Procedure Code.”

85. Mr. Parekh further pointed out that another note was put  

up by the Joint Registrar (Estt) on 17.5.2006 to the Registrar  

General pointing out Section 9(6) of the Code related only to  

Court of Sessions and not to Judicial Magistrate.  A request was  

made to place the matter before the Hon’ble Court for necessary  

orders.

86. The  Standing  Committee  in  its  meeting  dated  18.5.2006  

decided as under:

“It is resolved that the minutes of the proceeding of the last  meeting  of  the  Standing  Committee  held  on  11th May,  2006,  be  approved, with the only modification that in the last line of  agenda item No. (4) after section 9 sub-section (6) “and section  11  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

39

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 Superintendent, Secretariat Press, Bihar,  

Gulzarbagh,  Patna  with  a  request  to  publish  the  enclosed  

notification in the next issue of Bihar Gazette.   The issuing  

section was instructed to issue it at once on the very same day  

under  a  sealed  cover  as  per  the  directions  of  the  Registrar  

General.

91. Accordingly,  notification  No.  184A  dated  20.5.06  was  

published in Part-1 of the Bihar Gazette dated 16.8.2006 along  

with other notifications of various dates.

92. Thereafter, the Law (Judicial) Department, Government of  

Bihar, Patna published the two Notifications bearing Nos. Part-

1452/J and Part-1453/J both dated 7.6.2006 corresponding to S.Os.  

80  and  82  respectively  in  the  Bihar  Gazette  (Extraordinary  

Edition) which were impugned by the appellant.  The Personnel  

Department also issued the Notification Nos. 5556 and 5557 dated  

12.6.2006 regarding appointment of the Presiding Officers for the  

said two Special Courts.  

93. The  impugned  Notifications  provide  that  the  State  of  

Bihar in exercise of its power conferred by Section 11 of Cr.P.C.  

and in consultation with Patna High Court had been pleased to

40

establish a Court of Judicial Magistrate of 1st Class, inside the  

District Jail, Siwan, shall hold its sitting inside the District  

Jail, Siwan for trial of cases pending against Md. Shahabuddin in  

the Court of Judicial Magistrate, 1st Class.

94. Similarly, another Notification dated 7.6.2006 was issued  

by the Governor of Bihar, in exercise of the powers conferred by  

sub-section (1) of Section 13 and sub-section (1) of Section 14  

of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of  

1887) and sub-section (6) of Section 9 of the Code and in the  

light of Notification No. 184A dated 20th May, 2006 issued by the  

High Court of Judicature at Patna directing that the  Court of  

Additional District and Sessions Judge of Siwan Sessions Division  

shall now hold its sitting inside the District Jail, Siwan to try  

Sessions  cases  pending  against  Md.  Shahabudin.   Both  these  

notifications 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 jail and everyone has a right to go and attend the

41

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 premises for reasons of security to the  parties, witnesses and for other valid reasons.”

97. Kehar Singh’s judgment (supra) laid down that the public  

trial is a means, though important and valuable to ensure fair  

administration 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  

trials on the other, inevitably, public trials may have to be  

regulated  or  controlled  in  the  interest  of  administration  of  

justice.  Moreover, it is laid down that order of the High Court  

is an Administrative Order and not Judicial Order.  

98. Mr. Parekh has referred to a separate counter affidavit  

filed  in  the  High  Court.   He  has  also  mentioned  that   the  

expeditious trial should not be read out of context.  The cases  

of the appellant cannot be decided in normal course in the court  

premises  because  of  the  background  of  the  appellant.   The  

appellant is keeping a private army and if trial is conducted in  

court  there  is  serious  apprehension  to  the  lives  of  the  

witnesses, public prosecutor, Presiding Officer and the accused.  

Therefore,  after  taking  into  consideration  all  facts  and  

circumstances, a decision has been taken to hold the trials in  

jail.   He referred to para 22 of the  Kehar Singh’s judgment  

(supra)  delivered by Oza, J. in which it is mentioned that the  

High Court by notification has notified that Tihar Jail along  

with Tis Hazari and the New Delhi will be the places of sittings  

of the sessions court.  He also referred to the para 157 of the  

judgment delivered by Shetty, J. who gave a concurring judgment  

in the Kehar Singh’s case (supra).

42

99. He has further submitted that the High Court is empowered  

under section 9(6) of the Code to specify a place or places for  

hearing of individual case.   He referred to para 171 in which  

Shetty, J. has observed that under Section 9(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 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.

43

102. Public trial is an important part of the judicial system  

and this court in Kehar Singh’s case has ruled:

“In open dispensation of justice, the people may see 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 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.”   

103. The first question that one asks, before setting aside  

any order, is the nature of the action, judicial, legislative or  

administrative. This is because the grounds under which each type  

of action may be set aside are different. It was held in Kehar  

Singh’s case   that the order of the High Court notifying the  

trial is not a judicial order but an administrative order.  The  

court held as under:-

“The order of the High Court notifying the trial of a particular  case in a place other than the Court is not a judicial order but  an administrative order.”

104. Since this is an administrative function, therefore, the  

test for this court should be whether the decision of the High  

Court stands up to the test of judicial review of administrative  

decisions.  The  first  question,  therefore,  is  whether  the  

appellant had a statutory right to a hearing. If this is answered  

in the positive, then there is no need to go to further issues,  

as this would mean that the State has violated a statutory right  

to hearing. It is clear from the wording 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.

44

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 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 have found that to be necessary for this purpose. But before  this unusual kind of power is exercised it must be clear that the  statutory procedure is insufficient to achieve justice and that  to  require  additional  steps  would  not  frustrate  the  apparent  purpose of the legislation.”  

107. Therefore, this court must look into the issue whether  

the right to a fair hearing was denied to the appellant or not  

even if there is no statutory provision for it.  

108. The principles of natural justice are essential to the  

framework of our laws and a protection against arbitrary actions.  

There  is  every  duty  of  the  courts  to  judicially  review

45

administrative  actions.  However,  this  is  usually  not  to  be  

applied  blindly.  In  Regina  v.  Gaming  Board  for  Great  Britain  

(1970) 2 Q.B. 417, the court emphasized:

“it is not possible to lay down rigid rules as to when the  principles of natural justice are to apply: nor as to their scope  and extent. Everything depends on the subject-matter.”  

109. However,  there  are  situations  where  the  action  of  the  

State is prima facie void and therefore has to be set aside. If  

the denial of a public trial was a prima facie case of vitiation  

of natural justice, the court would be justified in exercising  

judicial review. This Court in  Naresh Shridhar Mirajkar’s case  

(supra) held that:

“If the principle that all trials before courts must be held in  public was treated as inflexible and universal and it is held  that it admits of no exception whatever, cases may arise where by  following the principle, justice itself may be defeated.”  

110. In the present case, it must be noted that a large number  

of supporters of the appellant may create unrest in front of the  

court room and much larger security would 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.

46

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 of security, the public access to trial  

can be regulated. The relevant observations are reproduced as  

under:-

“10. For  security  reasons,  the  public  access  to  trial  was  

regulated. Those who desired to witness the trial were required  

to intimate the court in advance. The trial Judge used to accord  

permission to such persons subject to usual security checks”  

113. This was considered a valid trial in open court.  

114. Even in the United States in Samuel H. Sheppard v. E.L.  

Maxwell 384 U.S. 333 (1966), the Supreme Court ruled that the  

right  to  a  public  trial  is  not  absolute.  Sometimes  excess  

publicity can be harmful to the case and therefore public access  

may be restricted. In Press-Enterprise Co. v. Superior Court 478  

U.S.  1  (1986),  the  court  held  that  trials  can  be  closed  on  

account of there being:

47

“an  overriding  interest  based  on  findings  that  closure  is  essential to preserve higher values and is narrowly tailored to  serve that interest.”  

115. While  the  Oregon  Court  of  Appeals  overruled  the  trial  

held in prison in State of Oregon v. James Donald Jackson 178 Or  

App 233, 36 P3d 500 (2001) on the specific ground that the public  

did not have access to watch the trial; there is no ruling that  

all trials inside jails are void.   In the case of Stephen Gary  

Howard  v  Commonwealth  of  Virginia  6  Va.  App.  132  (1988)  the  

appellant claimed that the trial inside prison was inherently  

prejudicial to his case. The Court of Appeals of Virginia held  

that there is no presumption of prejudice if a trial is held in  

prison. The court noted:

“We find that the trial location did not erode Howard's 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

48

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.”  

119. Therefore, to hold that the appellant’s right to a public  

trial has been denied the appellant has to prove more than mere  

shifting of the location of the trial.  

120. Lord  Wilberforce  in  Malloch v.  Aberdeen  Corporation  

(1971)  1  W.L.R.  1578  laid  down  a  test  for  courts  before  it  

interfered in the decisions of administrative authorities on the  

ground of violation of audi alteram partem. He stated:  

“The appellant has first to show that his position was such that  he had, in principle, a right to make representations before a  decision  against  him  was  taken.  But  to  show  this  is  not  necessarily enough, unless he can also show that if admitted to  state his case he had a case of substance to make. A breach of  procedure, whether called a failure of natural justice, or an  essential administrative fault, cannot give him a remedy in the  courts, unless behind it there is something of substance which  has been lost by the failure. The court does not act in vain”  

121. In the present case, it has been shown by the respondents  

that no one had been denied from attending or watching the trial.  

The appellant is being represented by 38 lawyers.   Apart from

49

his lawyers, the press and those who want to attend the trial or  

case  had  free  access  to  remain  present  during  the  court  

proceedings.   

122. In K.L. Tripathi v. State Bank of India & Others (1984) 1  

SCC 43 this Court held:  

“When on the question of facts there was no dispute, no real  prejudice has been caused to a 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 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

50

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 Authorities were of the opinion that it would be unsafe  

to hold the trial elsewhere it could be held in jail.

127. In the present case, the letters exchanged between the  

police authorities and the request made to High Court clearly  

show that there was serious danger in producing the appellant in  

open court.  The police authorities had shown that the large  

crowds were making a fair trial impossible and creating delays in  

deciding  the  cases.  The  relevant  part  of  the  letter  dated  

8.5.2006 written by the Superintendent of Police, Siwan reads:

“With reference to the above, I have to respectfully inform you  that more than forty cases are pending against Hon’ble Member of  Parliament Mohd. Shahabuddin. Directions have been received from  Hon’ble Patna High Court to dispose of cases as soon as possible.  There is serious danger to public peace during the presence of  Hon’ble  Member  of  Parliament  Mohd.  Shahabuddin,  in  the  court  premises.  His supporters and other co-criminals can attack the  witnesses.  Even the possibility of threat and attack on the  public  prosecutor/district  prosecuting  officer  cannot  be  ruled  out.  Besides this, since he is wanted in many cases, therefore,  other criminal groups can also attack him.  Since he is a sitting  M.P. and looking to the number of his supporters, it will impair  the working of other courts in Civil Court Siwan.  His supporters  can  create  disturbance  during  hearing  after  seeing  that  his  defence gets weak and there is possibility that his supporters  may disturb public peace in the court premises and nearby areas

51

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 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  prurient curiosity, are excluded altogether.”

131. Every  criminal  act  is  an  offence  against  the  society.  

The  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. Whether it responds appropriately to

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the situation or it presents a pathetic picture. This is one  

aspect.  The  other  aspect  is  still  more  fundamental.  When  the  

State representing the society seeks to prosecute a person, the  

State must do it openly. As Lord Shaw said with most outspoken  

words [Scott & Another v. Scott: 1913 A.C. 417]:

“It is needless to quote authority on this topic from legal,  philosophical, or historical writers. It moves Bentham over and  over again. “In the darkness of secrecy, sinister interest and  evil  in  every  shape  have  full  swing.  Only  in  proportion  as  publicity has place can any of the checks applicable to judicial  injustice  operate.  Where  there  is  no  publicity  there  is  no  justice.”  “Publicity  is  the  very  soul  of  justice.  It  is  the  keenest spur to exertion and the surest of all guards against  improbity. It keeps the judge himself while trying under trial.”  “The security of securities is publicity.” But amongst historians  the grave and enlightened verdict of Hal-lam, in which he ranks  the 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 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

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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  discouraged,  thus  protecting  the  integrity  of  the  trial  process. Public access helps to ensure that procedural rights are  respected and that justice is applied equally.

Closely related to the fairness function is the role of public  access in assuring accurate fact- finding through the improvement  of witness testimony. This occurs in three ways. First, witnesses  are  discouraged  from  committing  perjury  by  the  presence  of  members of the public who may be aware of the truth. Second,  witnesses like other participants, may be encouraged to perform  more  conscientiously  by  the  presence  of  the  public,  thus  improving  the  overall  quality  of  testimony.  Third,  unknown  witnesses may be inducted to come forward and testify if they  learn of the proceedings through publicity.  

Public  access  to  trials  also  plays  a  significant  role  in  educating the public about the criminal justice process. Public  awareness of the functioning of judicial proceedings is essential  to informed citizen debate and decision-making about issues with  significant  effects  beyond  the  outcome  of  the  particular  proceeding. Public debate about controversial topics, such as,  exclusionary evidentiary rules, is enhanced by public observation  of  the  effect  of  such  rules  on  actual  trials.  Attendance  at  criminal trials is a key means by which the public can learn  about the activities of police, prosecutors, attorneys and other  public servants, and thus make 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.”

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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 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 the question as to whether the  

press and public could be excluded from trial when it may be in  

the best interest of fairness to make such an exclusion. That  

question was considered in the  Globe Newspaper Co. v.  Superior  

Court for the County of Norfolk (1982) 457 US 596 : 73 L.Ed. 2d  

248. There the trial Judge excluded the press and public from the  

court room pursuant to a Massachusetts statute making closure

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mandatory in cases involving minor victims of sex crimes. The  

Court  considered  the  constitutionality  of  the  Massachusetts  

statute and held that the statute violated the first amendment  

because of its mandatory nature. But it was held that it would be  

open to the Court in any given case to deny public access to  

criminal trials on the ground of state's interest. Brennan, J.,  

who delivered the opinion of the Court said (at 258-59):

“We agree with appellee that the first interest - safeguarding  the  physical  and  psychological  well-being  of  a  minor  -  is  a  compelling one. But as compelling as that interest is, it does  not justify a  mandatory closure rule, for it is clear that the  circumstances of the particular case may affect the significance  of the interest.  A trial court can determine on a case by case  basis whether closure is necessary to protect the welfare of a  minor  victim.  Among  the  factors  to  be  weighed  are  the  minor  victim's  age,  psychological  maturity  and  understanding,  the  nature  of  the  crime,  the  desires  of  the  victims,  and  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.

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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  

furnished, the punishment ought not be set aside as a matter of  

course. It was directed that in such cases, a copy of the report  

should be furnished to the delinquent officer and his comments  

obtained in that behalf and that the court should interfere with  

the punishment order only if it is satisfied that there has been  

a failure of justice. (see para 25 of  State Bank of Patiala  

(supra).  

141. Therefore, to vitiate the entire trial on the ground that  

the notification was not sent to the appellant in time would not  

be in the interest of justice, and the High Court was correct in  

ordering  that  a  copy  of  the  notification  be  supplied  to  the  

appellant.  

142. On  analysis  of  the  provisions  of  law  and  the  leading

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judgments  which  all  in  one  voice  say  that  in  all  civilized  

countries governed by the rule of law, all criminal trials have  

to be public trials where public and press have complete access.  

143. Public access is essential if trial adjudication is to  

achieve the objective of maintaining public confidence in the  

administration of justice.   

144. Publicity  is  the  authentic  hallmark  of  judicial  

functioning distinct from administrative functioning.  Open trial  

serves an important prophylactic purpose, providing an outlet for  

community concern, hostility, and emotion. Public trial restores  

the balance in cases when shocking crime occurs in the society.   

145. People have inherent distrust for the secret trials.  One  

of the demands of the democratic society is that public should  

know what 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

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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 house. The  accused must have all facilities to have a fair trial and all  safeguards to avoid prejudice.”

148. The question arises – whether the present case would fall  

in the category of those extraordinary or exceptional cases where  

universal rule of open trial can be given a go-bye.   

149. It is alleged by the learned counsel appearing for the  

State that the appellant is involved in more than forty criminal  

cases.   In  the  counter  affidavit  filed  by  the  State  it  is  

mentioned  that  a  reign  of  terror  has  been  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 detail in the counter affidavit.    

150. During the raid conducted on 16.03.2001 in the house of  

the appellant, the appellant and his private army fired upon the  

raiding  party  and  burnt  the  vehicles  of  the  Deputy  Inspector  

General of Police, Saran Range, District Magistrate Siwan and  

Superintendent of Police Siwan.   These criminals fired more than

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100 rounds of ammunition from arms including AK 47 and AK 56 etc.  

In that firing, one constable was killed and several constables  

were injured.  There are innumerable cases of the same kind in  

which the appellant is directly involved.

151. It is also stated in the counter affidavit that prior to  

the constitution of the Court in the jail premises, when the  

appellant was 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  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

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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 fully  settled  in  view  of  the  judgment  of  this  court  in  Kehar Singh’s case (supra).

V.  In  the  instant  case  apart  from  appellant’s  38  lawyers, the public and the press had access to the  court  proceedings.   The  Siwan  Jail  is  only  one  kilometer  from  the  Siwan  Court.   The  court  proceedings were regularly reported in the press.  So  in the instant case no real prejudice has been caused  to the appellant.

154. I accept the main argument of the learned counsel of the  

appellant and reiterate that universal rule as recognized in all  

civilized countries governed by rule of law is that the criminal  

trial should be a public trial or open trial but in  exceptional  

cases  there  can  be  deviation  from  the  universal  rule  in  the  

larger  public interest.   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 for the reasons stated in the preceding paragraphs.

155. On  consideration  of  the  totality  of  the  facts  and  

circumstances,  this  appeal  lacks  merit  and  is  accordingly  

dismissed.   

156. Before parting with the case, I would like to place on  

record  my  deep  sense  of  appreciation  for  the  able  assistance  

provided by the learned counsel for the parties.

.…….……………………..J.                                          (Dalveer Bhandari) New Delhi; March 25,  2010

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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.591 OF 2010 (Arising out of S.L.P. (Crl.) No. 1311 of 2008)

Md. Shahabuddin              …. Appellant

Versus

State of Bihar & Ors.     …. Respondents

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. I  have  had  the  privilege  of  perusing  the  considered  

judgment  of  my  esteemed  brother  Justice  Dalveer  Bhandari.  

However, in view of the fact that the present appeal involves  

several important and wide-ranging questions of law, I wish to  

record my own reasons for the 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

62

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 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 inside the jail premises of District Jail, Siwan

63

for  trying  the  cases  relating  to  the  appellant  herein.   By  

issuing the third notification dated 07.06.2006, the Government  

of Bihar in exercise of power conferred under Section 11 of the  

Code  of  Criminal  Procedure  (for  short  ‘the  CrPC’)  and  in  

consultation with the Patna High Court ordered the establishment  

of  a  Court  of  Judicial  Magistrate  of  First  Class  inside  the  

District Jail, Siwan for holding its sitting for the trial of  

cases pending against the appellant. On issuance of the aforesaid  

notifications dated 07.06.2006, the venue for holding the trial  

of the cases pending against the appellant was shifted to the  

premises of the District Jail, Siwan.

6. The  appellant  had  earlier  challenged  and  assailed  the  

legality and validity of the aforesaid notifications in the High  

Court of Patna by filing a Writ Petition. It was submitted on  

behalf of the present appellant before the High Court that the  

provisions of Section 9(6) of the CrPC do not empower the High  

Court to transfer the pending cases although such power might or  

could be exercised with regard to the newly instituted cases.  It  

was also submitted that since the State Government has no power  

and  jurisdiction  to  exercise  powers  under  Section  9(6),  

therefore,  the  notification  issued  by  the  State  Government  

exercising powers under Section 9(6) by way of establishing a  

Sessions Court in District Jail, Siwan is without jurisdiction  

and violative of Articles 14 and 21 of the Constitution of India.  

It was next submitted that the rule of ‘audi alteram partem’ is  

applicable  to  transfer  of  any  case  to  any  court  to  which

64

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 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.

65

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 hereinafter:  -

(a) The scope and ambit of the power under Section 9(6) and  

Section 11 of CrPC.

(b) 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 under Section 9(6)  

of CrPC because it left the same to be done by the State  

Government. Further, the notification dated 07.06.2006 was  

void as the Governor of Bihar could not have exercised  

power  under  Section  9(6)  of  CrPC  as  such  power  lies  

exclusively with the High Court.  

(c) 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 is invalid.   

(d) If  issues  of  the  aforesaid  nature  were  neither  raised  

earlier  in  the  writ  petition  nor  argued  in  the  writ  

petition nor decided in the writ petition and not also  

taken in the SLP, whether the same could be argued as a  

question of law on the ground that such legal issues could  

be amended at any time.

(e) Before issuing a notification was it necessary to provide

66

an opportunity of being heard to the accused in compliance  

of the rule of ‘audi alteram partem’ which is an embodied  

rule under          Section 9(6).  

(f) Section 9(6) of CrPC does not empower the High Court to  

transfer any pending case but it covers only new cases.  

(g) Reason  for  issuance  of  notification  being  only  for  

expeditious disposal which is even otherwise a necessary  

concomitant of administration of justice, the notification  

is  void  as  no  special  reason  to  exercise  power  under  

Section 9(6) was spelt out and also particularly 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,

67

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  Judicial  Magistrate of the first class or of the second class to  try any particular case or particular class of cases, and  where  any  such  Special  Court  is  established,  no  other  court  of  Magistrate  in  the  local  area  shall  have  jurisdiction to try any case or class of cases for the  trial of which such Special Court of Judicial Magistrate  has been established.]

(2) The presiding officers of such Courts shall be appointed by  the High Courts.

(3) The High Court may, whenever it appears to it to be expedient  or necessary, confer the powers of a Judicial Magistrate of the  first class or of the second class on any member of the Judicial  Service of the State, functioning as a Judge in a Civil Court.”

Section 407 of the CrPC reads as follows:

“407. Power of High Court to transfer cases and appeals.

(1) Whenever it is made to appear to the High Court-

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(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 be 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 offence;

(ii) That any particular case, or appeal, or class of cases or  appeals, be transferred from a Criminal Court subordinate to its  authority to any other such Criminal Court of equal or superior  jurisdiction;

(iii) That any particular case be committed for trial of to a  Court of Session; or

(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

69

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  

Section 9(6), the same could be exercised only in consonance with  

the intention of the legislature gathered from the provisions.  

Another  connected  issue  which  was  raised  was  whether  before  

issuing a notification under Section 9(6), was it necessary to  

provide an opportunity of hearing to the appellant in compliance  

with the rule of audi alteram partem which is embodied in Section  

9(6) of CrPC.  Since both the aforesaid issues are interconnected  

and  interrelated,  both  the  issues  are  taken  up  together  for  

consideration.

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12. The  aforesaid  submissions  of  Mr.  Jethmalani  were  

vehemently 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 Patna High Court.  They  

extensively relied upon the judgment rendered by this Court in  

the case of Kehar Singh v. State (Delhi Administration) reported  

in 1988 SCC (3) 609, wherein the issue of change of venue of the  

trial from the Patiala House Court, Delhi to the Special Court  

established  in  the  Tihar  Jail,  Delhi  had  come  up  for  

consideration.   

13. This Court in the aforesaid case was also called upon to  

interpret  Section  9  of  the  CrPC  and  after  referring  to  the  

various provisions of the CrPC and the provisions of Section 9,  

it was held that Section 9(6) is divided into two parts – the  

first part thereof confers power on the High Court whereas the  

second part thereof endows power on the Court of Sessions.  

14. A  bare  reading  of  the  aforesaid  provisions  of  Section  

9(6) explicitly indicates that the power conferred on the High  

Court is the power to determine the place or places where the  

Court of Sessions shall ordinarily hold its sittings. The second  

part which immediately follows the first part opens with the word  

“but”, thereby carving out an exception to the general rule that  

the venue of the 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

71

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 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 specified under  

the second part of Section 9(6) of the Code are not complied

72

with, the Court of Sessions has no power to shift the venue. In  

such a case, the power of shifting the venue continues to lie  

with the High Court.  

15. In the present case, the essential conditions ingrained  

in the second part of Section 9(6), as set out above, are not  

applicable inasmuch as neither inconvenience to the parties or  

witnesses  was  ever  perceived  or  recorded  by  the  Court  of  

Additional Sessions Judge nor was the venue of trial shifted for  

a particular case. On the contrary, it was shifted for the entire  

class of cases that were pending against the appellant. In light  

of the aforesaid, it may be said that the power to change the  

venue of the trial of cases pending against the appellant, was  

exercisable by the High Court and not by the Court of Sessions.  

Furthermore, a careful reading of Section 9(6) reveals that the  

second part expressly requires the Court of Sessions to afford  

the prosecution and the accused an opportunity of hearing and to  

obtain their consent beforehand.   It is, therefore, not a case  

falling under second part of Section 9(6) but is a case falling  

under first part of Section 9(6) of CrPC.

16. Learned Senior Counsel appearing for the appellant also  

contended that there was a “transfer” of cases pending against  

the appellant from the Sessions Court, Siwan to Jail Sessions  

Court, Siwan and as such there was a case of exercise of power  

under Section 407 of CrPC by the High Court which is a judicial  

power and thus compliance with the rule of  audi alteram partem

73

was necessary.  In my considered view, the argument is entirely  

misplaced as Section 407 of the Code deals with the power of the  

High Court to “transfer” cases and appeals. The key word in this  

section is the word ‘transfer’, which essentially consists of two  

steps:  (a)  removing  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  where  the  Court  of  Sessions  shall  ordinarily  hold  its  

sitting is an administrative power unlike the power of the Court

74

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 part of Section 9(6) should be  read along with the second part thereof has, in the context, no  place. The first part provides power to the High Court. It is an  administrative power, intended to further the administration of  justice. The second part deals with the power of the Court of  Session. It is a judicial power of the court intended to avoid  hardship to the parties and witnesses in a particular case. One  is independent of and unconnected with the other. So, one should  not be confused with the other. The judicial power of the Court  of Session is of limited operation, the exercise of which is  conditioned by mutual consent of the parties in the first place.  Secondly, the exercise of that power has to be narrowly tailored  to the convenience of all concerned. It cannot be made use of for  any other purpose. This limited judicial power of the Court of  Session  should  not  be  put  across  to  curtail  the  vast  administrative power of the High Court.”

 18. The  intention  of  the  legislature  for  providing  an  

opportunity of hearing in the matters of transfer of criminal  

cases could be gathered from the language used in the provision  

wherein  the  legislature  desired  that  there  should  be  an  

opportunity  of  hearing  that  is  so  specifically  stated  in  the  

language  itself  and  where  the  legislature  desired  that  there  

should be a power of the High Court to fix the place or places of  

sittings of a Sessions Court for holding its trial, it has so  

mentioned explicitly by excluding the rules of natural justice  

from its ambit thereby excluding the principles of audi alteram  

partem.

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19. In Union of India v. Col. J.N. Sinha, (1970) 2 SCC 458,  

at page 460, this Court observed as follows:   

“8. Fundamental Rule 56(i) in terms does not require that any  opportunity should be given to the concerned government servant  to show cause against his compulsory retirement. A government  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 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, at  

page 208, a five judge Bench of this Court reiterated the  

aforesaid view as follows:  

“30.  Elaborate  rules  of  natural  justice  are  excluded  either  expressly or by necessary implication where procedural provisions  are  made  in  the  statute  or  where  disclosure  of  relevant  information  to  an  interested  party  would  be  contrary  to  the  public  interest.  If  a  statutory  provision  excludes  the  application of any or all the principles of natural justice then  the  court  does  not  completely  ignore  the  mandate  of  the  legislature. The court notices the distinction between the duty  to act fairly and a duty to act judicially in accordance with

76

natural justice. The detaining authority is under a duty to give  fair consideration to the representation made by the detenu but  it is not under a duty to disclose to the detenu any evidence or  information. The duty to act fairly is discharged even if there  is not an oral hearing. Fairness denotes abstention from abuse of  discretion.”  

(emphasis supplied)

21. It has been the consistent view of this Court that an  

administrative order when passed by a competent authority may not  

necessarily be required to be issued only after due compliance  

with the principles of natural justice. Reference in this regard  

may be made to the decisions of this Court in Olga Tellis v.  

Bombay  Municipal  Corporation,  (1985)  3  SCC  545;  Carborundum  

Universal Ltd. v. Central Board of Direct Taxes, (1989) Supp. 2  

SCC 462; and Ajit Kumar Nag v. G. M. (PJ), Indian Oil Corp. Ltd.,  

(2005) 7 SCC 764.

22. The second part of Section 9(6) of the CrPC expressly  

requires the Court of Sessions to afford the prosecution and the  

accused an opportunity of hearing and to obtain their consent  

beforehand whereas there is no such stipulation under first part  

of Section 9(6).  The omission of such a requirement in case of  

the High Court pertaining to first part of sub-section (6) of  

Section 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

77

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  

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 of audi  

alteram  partem  before  notifying  a  shift  in  the  venue  of  the  

trial, for such power of the High Court under Section 9(6) of the  

CrPC to notify a particular place or places where the Court of

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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 a purely a judicial power in nature.  

Consequently, the High Court was under no requirement to follow  

and to comply with the rule of audi alteram partem before issuing  

the notification dated 20.05.2006.   

26. As  stated  hereinbefore,  a  feeble  attempt  was  made  to  

argue the constitutional validity of Section 9(6). Significantly,  

no such plea was ever raised at any stage and even such ground  

was not raised in the memo of appeal. An important question of  

constitutional validity of a provision in a Central Act cannot be  

permitted to be raised for the first time at the stage of final  

hearing.   The Union of India is also not a party in the present  

proceeding and in its absence no such issue could be allowed to  

be raised, argued and decided.

27. Now, I come to Section 11 of the CrPC which makes it  

explicitly clear that a Court of Judicial Magistrate could be  

established by the State Government after consultation with the  

High Court.  The State Government is vested with the power, after  

due consultation with the High Court, to create or to establish  

for any local area one or more Judicial Magistrate Court of the  

First Class so as to try any particular case or particular class  

of cases and that where such special court is established, no  

other court be created or established for such a case or any

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class of cases for the trial of which such a Court of Judicial  

Magistrate has been established.  

28.  In terms of Section 9(6) and Section 11 of the CrPC, the  

venue of Court of Sessions for holding of trial of the cases  

pending  against  the  appellant  was  shifted  to,  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

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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 non-publication of  

the notification in the official Gazette is a mixed question of  

law and fact and, therefore, the same should have been raised  

specifically in the writ petition and at least in this appeal  

petition.   It  also  does  not  appear  to  us  from  the  material  

available on record that such an issue was ever raised by the  

appellant  before  the  High  Court.  Therefore,  the  issue  being  

raised, for the first time, at the time of hearing of the case  

before  us  which,  according  to  us,  cannot  be  permitted  to  be  

raised for the first time for the simple reason that the issue  

being whether the notification dated 20.05.2006 was supplied to  

the appellant and the same was published in the Gazette or not,  

is not a pure question of law but a mixed question of law and  

fact.  The  said  facts  were  required  to  be  urged  evidentially  

before  the  courts  below.  Unless  such  a  factual  foundation  is  

available it is not possible to decide such a mixed question of  

law and fact. Therefore, such a mixed question of law and fact

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should not be allowed to be raised at the time of final hearing  

of appeal before this Court. [Reference in this regard may be  

made to a recent decision of this Court in Shakti Tubes Ltd. v.  

State  of  Bihar,  (2009)  7  SCC  673].  However,  in  order  to  do  

complete justice to the parties the parties were called upon to  

place  their  additional  documents,  relevant  to  the  issues  

involved,  if  any,  which  were  accepted  during  the  course  of  

arguments.   

33. On going through the records, it is clear that before  

issuance  of  the  notification  dated  20.05.2006,  a  bunch  of  

correspondences had taken place among the different authorities.  

The Superintendent of Police, Siwan under his letter No. 1493  

dated 08.05.2006 wrote to the District Magistrate, Siwan that  

more than 40 cases were pending against the appellant.  In the  

said letter, it was also indicated that there were directions  

issued  by  the  Patna  High  Court  to  dispose  of  the  cases  

expeditiously.  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,

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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 mentioned in  

his report that his physical production in the court during the  

trial  may  be  a  source  of  menace  to  the  public  peace  and  

tranquility,  besides  posing  a  great  threat  to  the  internal  

security  extending  to  other  prosecution  witnesses  and  other  

prosecutors.  It was also indicated in the report that it may  

also have adverse impact on inside court working condition making  

the situation surcharged during the trial.  He suggested that to  

promote efficient conducting of trial as also to strengthen its  

efficacy, the trial of the appellant be conducted by constituting

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a special court inside the District Jail, Siwan which, according  

to  him,  was  an  imperative  need  of  the  time.   He  therefore,  

suggested  that  the  Patna  High  Court  may  be  requested  to  

constitute special courts for the trial of the appellant inside  

the District Jail, Siwan.   

35. The aforesaid records were placed before the Registrar  

General of the Patna High Court who put up a note upon which the  

Chief Justice of the Patna High Court directed the matter to be  

put  up  before  the  Standing  Committee.   A  list  of  Additional  

Sessions Judges for the trial of sessions cases and a list of  

Special Magistrates were also placed for consideration before the  

Standing Committee.  Consequently, the matter was placed before  

the Standing Committee in its meeting held on 11.05.2006.  The  

Agenda for the said meeting is reproduced hereunder:  

“Letters received from the Law Secretary, Government of Bihar  regarding designation of Special Court of Sessions and Court of  Judicial  Magistrate  First  Class  for  expeditious  trial  of  the  cases pending against Md. Shahbuddin and for notifying Siwan Jail  a  place  for  shifting  of  Sessions  Court  and  Magisterial  Court  inside the jail for trial of such cases.”

36. In  the  aforesaid  meeting  of  the  Standing  Committee,  a  

decision was taken to the following effect:  

“Upon due deliberation and consideration of the letters received  from the Law Secretary, 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

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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  Standing  Committee  held  on  11th May,  2006,  be  approved, with the only modification that in the last line of  agenda item No. (4) after section 9 sub-section (6) “and Section  11  sub-section  (1)  of  the  Code  of  Criminal  Procedure,  1973,  respectively” be added”.

38. Pursuant  to  the  aforesaid  decision  of  the  Standing  

Committee  of  the  Patna  High  Court,  the  notification  dated  

20.05.2006 was issued by the Patna High Court which reads as  

follows :  

“In exercise of powers conferred under Sub section (6) of Section  9 of the Criminal Procedure Code, 1973, the High Court have been  pleased to decide that the premises of the District Jail, Siwan  will  be  the  place  of  sitting  the  Court  of  Sessions  for  the  Sessions Divisions of Siwan for the expeditious trial of Sessions  cases pending against Md. Shahabuddin.”

85

39. By letter No. 5137/Admn. (Appointment) dated 20.05.2006,  

Mr. Gyaneshwar Shrivastav, Additional District and Sessions Judge  

was  designated  as  the  Presiding  Officer  (Special  Judge)  

constituted inside the District Jail, Siwan for the expeditious  

trial  of  sessions  cases  pending  against  the  appellant.  

Similarly, by letter No. 5139, the Registrar General informed the  

Law Secretary that Patna High Court had been pleased to accept  

the proposal of the State Government for the establishment of a  

Special  Court  of  Judicial  Magistrate  First  Class  inside  the  

District Jail, Siwan for the expeditious trial of cases pending  

against the appellant.   

40. The  Registrar  General  under  letter  No.  5141  dated  

20.05.2006  informed  the  Secretary,  Department  (Personnel)  that  

the Patna High Court has been pleased to recommend the name of  

Sri  Vishwa  Vibhuti  Gupta,  Judicial  Magistrate,  First  Class,  

Siwan,  for  his  designation  as  Presiding  Officer  (Special  

Magistrate) of the Special Court of Judicial Magistrate, First  

Class being constituted to function inside the District Jail,  

Siwan  for  expeditious  trial  of  cases  pending  against  the  

appellant.   

41. The  Registrar  General  under  his  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

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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  

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 the said notification issued  

by the High Court is void on the ground of non-publication of the  

same in the official gazette.  The appellant has not even pleaded  

such ground in the writ petition or in the Memorandum of Appeal  

nor placed any evidence before us to show that any effective

87

order  which was  prejudicial to  him was  passed in  any of  the  

criminal cases during the aforesaid period.  Instead, he took  

part in all the proceedings without any protest and now at the  

time of argument is making an effort to take up such issues,  

which again involve questions of fact, and therefore, cannot be  

allowed to be raised only at this stage.  

43. By  issuing  one  of  the  aforesaid  two  impugned  

notifications  the  State  of  Bihar,  in  exercise  of  its  powers  

conferred under Section 11 of the CrPC and in consultation with  

the  Patna  High  Court,  was  pleased  to  establish  a  Court  of  

Judicial Magistrate, First Class inside the District Jail, Siwan  

to hold its sitting inside the jail premises for the trial of  

cases  pending  against  the  appellant  in  the  Court  of  Judicial  

Magistrate, First Class. The said notification was challenged by  

the appellant on various grounds. But on consideration of the  

records  of  the  case,  I  am  satisfied  that  the  impugned  

notification  satisfies  all  the  requirements  and  all  the  four  

corners as envisaged under Section 11 of the CrPC and, therefore,  

the  said  notification  appears  to  us  to  be  legal  and  valid  

inasmuch  as,  according  to  us,  the  same  was  issued  by  the  

competent  authority  and  also  in  full  compliance  with  the  

requirements and the safeguards provided in the said provisions.  

44. So far the other notifications which were issued by the  

Government  of  Bihar  are  concerned,  the  same  were  issued  on  

07.06.2006 directing that the Court of Additional District and

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Sessions  Judge  of  Siwan  Sessions  Division  would  now  hold  its  

sitting inside the District Jail, Siwan to try sessions cases  

pending against the appellant.  The legality and validity of the  

same was challenged 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  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

89

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 that the notification  

dated  07.06.2006  issued  by  the  State  Government  apart  from  

referring to the provisions of Section 9 of the CrPC also refers  

and relies upon the provisions of Section 14 (1) of the Bengal,  

Assam and Agra Civil Courts Act, 1887.  It was submitted that  

since the aforesaid reference was made in the notification, the  

same pinpoints to the fact of non-application of mind by the  

competent  authority  and  on  that  ground  the  notification  was  

illegal and void.  

47. I am unable to accept the aforesaid submission for the  

simple reason that if the notification quotes a wrong section and  

refers  to  a  wrong  provision,  the  same  cannot  be  held  to  be  

invalid if the validity of the same could be upheld on the basis  

of some other provision. In N. Mani v. Sangeetha Theatre, (2004)  

12  SCC  278,  at  page  279,  a  three  judge  Bench  of  this  Court  

succinctly observed as follows:  

“9. It is well settled that if an authority has a power under the  law  merely  because  while  exercising  that  power  the  source  of  power is not specifically referred to or a reference is made to a  wrong  provision  of  law,  that  by  itself  does  not  vitiate  the  exercise of power so long as the power does exist and can be  traced to a source available in law.”

48. It  is  a  well-established  law  that  when  an  authority  

passes an order which is within its competence, it cannot fail  

merely because it purports to be made under a wrong provision if

90

it can be shown to be within its power under any other provision  

or rule, and the validity of such impugned order must be judged  

on  a  consideration  of  its  substance  and  not  its  form.  The  

principle is that we must ascribe the act of a public servant to  

an actual existing authority under which it would have validity  

rather than to one under which it would be void. In such cases,  

this Court will always rely upon Section 114 Ill. (e) of the  

Evidence Act to draw a statutory presumption that the official  

acts are regularly performed and if satisfied that the action in  

question  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

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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 conducting  

the cases at various courts both for the prosecution as also to  

the  appellant.   That  also  created  a  number  of  problems  as  

mentioned in the letter dated 08.05.2006 of the Superintendent of  

Police, Siwan which was affirmed by the District Magistrate.  The  

Law Secretary, Government of Bihar had also affirmed the said  

reasons.  Therefore, in order to dispose of all the cases pending  

against the appellant most expeditiously at one place without  

being in any manner disturbed by the factors mentioned in the  

letter of the Superintendent of Police could be said to be a  

reasonable ground.  

51. Expeditious  disposal  of  cases  is  also  a  factor  and  a  

necessary  concomitant  to  administration  of  justice  and  the  

hallmark of fair administration of justice.  Since the venue of  

the  trial  of  a  group  or  a  class  of  cases  was  shifted  by  

establishing and constituting a Court within the District Jail,  

Siwan, the same cannot be said to be void or invalid in any

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manner.   The  aforesaid  issue,  therefore,  stands  answered  

accordingly along with the issue which was argued by the learned  

senior  counsel  appearing  for  the  appellant  that  reason  for  

issuance of notification being only the expeditious disposal of  

the cases pending against the appellant which is even otherwise a  

necessary  concomitant  of  the  administration  of  justice,  the  

notification was void as no special reason to exercise such power  

under Section 9(6) of the CrPC is spelt out and also particularly  

when  the  said  power  is  exercised  in  the  cases  of  only  one  

individual.  I have dealt with the aforesaid issue as well and  

have given my reasons for rejecting the aforesaid submission for,  

according to me, the said submission is devoid of any merit.

52. The correspondences spell out as to why the trial of all  

the cases of the appellant should be held at one place.  The  

reasons given in the aforesaid communications were sufficient to  

arrive at a conclusion which was rightly done by the High Court  

to  have the  trial of  all the  cases of  the appellant  pending  

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

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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. Denbigh Justices, (1974) 2 All ER 1052, 1056  

(QBD), it was held that the presence or absence of the press is a  

vital factor in deciding whether a particular hearing was or was  

not in the open Courts. It was further held that if the press has  

been actively excluded, the hearing is not in the open Courts. On  

the  other  hand,  even  if  the  press  is  present,  if  individual  

members  of  the  public  are  refused  admission,  the  proceedings

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cannot be considered to go on in open Courts. In my considered  

view an ‘open court’ is a court to which general public has a  

right to be admitted and access to the court is granted to all  

the persons desirous of entering the court to observe the conduct  

of the judicial proceedings.  Although the general rule still  

remains that a trial must be conducted in an open court, it may  

sometimes  become  necessary  or  rather  indispensable  to  hold  a  

trial  inside  a  jail.  Considerations  of  public  peace  and  

tranquility, maintenance of law and order situation, safety and  

security of the accused and the witnesses may make the holding of  

a trial inside the jail premises imperative as is the situation  

in the present case.  The legal position as regards the validity  

of a trial inside the jail premises is well settled. In Kehar  

Singh case (supra) Shetty J. in his concurring judgment, after  

going through a number of authorities, on this issue observed  

thus:

“45. 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 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

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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 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 used by the court.

(3)  Where  any  proceedings  are  held  under  sub-section  (2),  it  shall not be lawful for any person to print or publish any matter  in relation to any such proceedings, except with the previous  permission of the court.”

56. Learned counsel appearing for the respondent brought to  

our  notice  that  on  the  direction  of  the  Presiding  Judge,  a  

general notice inviting the public to witness the trial of the

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appellant  was  affixed  on  the  jail  gate,  the  appellant  was  

represented by 38 advocates who regularly attended the court in  

jail  premises,  the  day-to-day  proceedings  of  the  court  were  

reported in the newspapers daily and that the entry was allowed  

to  all  persons  after  entering  their  personal  details  into  a  

register  maintained  by  the  jail  authorities.   Furthermore,  a  

retired judicial officer who was a relative of the appellant had  

attended  all  the  proceedings  of  the  court.  All  the  aforesaid  

facts have not been controverted by the appellant.   We have also  

not been shown or made aware of any fact that any permission  

sought for by any intending person to witness the proceedings was  

refused by the authority.  As a matter of fact, presence of a  

press person in the audience present on one occasion at least was  

vehemently objected to by the appellant himself. In view of the  

aforesaid,  I  find  that  there  was  sufficient  compliance  with  

Section 327 of the CrPC.   

57. After referring to the decision of this Court in the case  

of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, the learned  

senior counsel appearing for the appellant assailed the impugned  

notifications on the ground that the object of expeditious trial  

of cases does not amount to a valid criterion for shifting the  

venue of the trial.  In my considered opinion, the aforesaid  

decision has no application to the present case as in Anwar Ali  

case (supra) the West Bengal Special Courts Act, 1950 was enacted  

which  provided  for  differential  treatment  for  the  trial  of  

criminals in certain cases and for certain offences.  On the

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contrary, in the present case, the notifications issued by the  

Patna 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 before us for challenging the legality and the  

validity  of  the  three  notifications  which  were  issued  by  the  

respondents for holding the trial of cases pending against the  

appellant  in  one  Sessions  Division  and  for  constituting  and  

establishing  two  Special  Courts  i.e.  the  Court  of  Additional  

District and Sessions Judge to try sessions cases pending against

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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,  within  the  premises  of  the  

District  Jail,  Siwan,  I  find  no  merit  and  force  in  the  

submissions  of  the  learned  senior  counsel  appearing  for  the  

appellant.  

59. Having held, thus, in the foregoing paragraphs of this  

judgment, all the issues that were framed in paragraph 9 above,  

on the basis of the arguments of the parties stand discussed and  

answered.

60. That being the position, I uphold the legality and the  

validity of all the three notifications.  Consequently, the trial  

can proceed as against the appellant in all the pending cases and  

it would continue to be held in terms of the notifications in  

accordance with law.  

61. In view of the foregoing, the order passed by the High  

Court  is  upheld  and  consequently  the  appeal  filed  by  the  

appellant stands dismissed. The parties are left to bear their  

own costs.  

…......………………………J.  [Dr. Mukundakam Sharma]

New Delhi, March  25, 2010.