MD. SHAHABUDDIN v. STATE OF BIHAR & ORS

Citation: [2010] 3 S.C.R. 911

Court: Supreme Court of India

Bench: DALVEER BHANDARI, MUKUNDAKAM SHARMA

Case summary

MD. SHAHABUDDIN v. STATE OF BIHAR & ORS.pdf

Judgment text

[2010] 3 S. C. R. 911 MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. (Criminal Appeal No. 591 of 2010) MARCH 25, 2010 [DALVEER BHANDARI AND DR. MUKUNDAKAM SHARMA, JJ. ] Code of Criminal Procedure, 1973: ss.

9(6), 11, 407 and 465 - Notification by High Court shifting the venue of Court of Session inside the District Jail, and Notification by State Government establishing Court of Judicial Magisrate 1st class inside District Jail to try cases pending against accused - HELD: Are valid - High Court in 0 exercise of its administrative power uls 9(6) is empowered to shift the venue of the pending case/trial without hearing the accused and this would not violate his fundamental rights under Articles 14 and 21 or any other provision of the Constitution - The power of High Court uls 9(6) is administrative in natur~ and as such, it is under no obligation to observe the rule of audi alteram partem - By issuing the· Notification, High Court cannot be said to have transfered the cases pending against the accused - There was a shift simpliciter in the venue of the trial without there being anything more - Delay in publishing the Notification and supplying a copy thereof to accused would not vitiate the trial as no prejudice is caused to him- Notification dated 7.

6. 2006 issued by State Government establishing the Court of Judicial Magistrate 1st Class inside the District Jail satisfies all the requirements of s. 11 - Constitution of India, 1950 -Articles 14 and 21 - Principle of natural justice - Rule of audi alteram partem - Interpretation of Statutes - Judicial Review - Practice and Procedure. s. 327 - Court to be open - Trial of accused inside the jail - HELD: Open trial is an important part ofjudicial system - Public access is essential to achieve the objective of maintaining public confidence in the administration of justice - Although the universal rule is that criminal trial should be an open trial, but in exceptional cases, there can be deviation from the rule in larger public interest - The instant case falls in the category of and exceptional cases where, in the interest of justice, it became imperative to shift the venue of the .

trials inside the jail - However, there is no presumption that a trial in prison is not an open trial - Apart from the large number of lawyers of the accused, press and those who want to watch the trial have free access to the venue during the courl proceedings - Thus, no prejudice is caused to the appellant - Constitution of India, 1950 - Articles 14 and 21 - Administration of Justice - Open trial. Constitution of India, 1950: Article 14 - Equality before law - Reasonable classification - A classification may be reasonable even though a single individual is treated as a class by himself - · Code of Criminal Procedure, 1973 - s. 9(6). Plea: New pleas regarding constitutional validity of s. 9(6) CrPC and delay in publication of notification in official gazette and in supply of copy thereof to accused raised at the time of hearing of appeal before Supreme Court - HELD: Not maintainable. Evidence Act, 1872: s.

114, Illustration {e) - Presumption that official act has been regularly performed - In the Notification issued by the State Government stating that Courl of Session would hold its sitting inside District Jail, apart from mentioning s. 9(6) CrPC, s. 14(1) of Bengal, Assam and Agra Civil Courts Act, 1887 also referred - HELD: If the notification refers to a wrong provision, the same cannot be held to be invalid when its validity could be upheld on the basis of some other provision - In the instant case, notification was valid in view ofprovisions of s. 9(6) CrPC- Besides statutory presumption as envisaged by s. 114 Illustration (e) would also be available - Code of Criminal Procedure, 1973 - s. 9(6) - Practice and Procedure. The appellant, a sitting M. P. , was involved in a large number of criminal cases and, as such, was in custody in District Jail, Siwan in the State of Bihar.

The Superintendent of Police reported that more than forty cases were pending against the appellant and there was serious danger to public peace during his presence in the court premises; that his supporters and other criminals could attack the witnesses; that since the appellant was accused in many cases, other criminal groups could also attack him. The matter was taken up by the Law Secretary of the State with the Registrar General of the High Court and ultimately, the High Court in exercise of its powers, under sub-section (6) of s. 9 of the Code of Criminal Procedure, 1973, issued Notification dated 20. 5,2006 stating that the premises of District Jail, Siwan would be the place of sitting of the Court of Session for the Sessions Division of Siwan for expeditious trial of the Sessions cases pending against the appellant. Thereafter, the State Government issued Notification dated 7. 6.

2006 to the effect that Court of Judicial Magistrate I Class, Siwan would hold its sitting inside the District Jail, Siwan for trial of cases pending against the appellant. Another Notification dated 7. 6. 2006, issued by the State Government, stated that the Additional District and Sessions Judge of Siwan Sessions Division "'-· ·. would hold its sitting inside the District Jail, Siwan to try Sessions cases pending against the appellant. The appellant challenged all the three Notifications before the High Court in a writ petition, which was dismissed. [201 OJ ~ ,s. C. R. In the instant appeal it was primarily conter:ded for the appellant that the power u/s 9(6) of the Code of Criminal Procedure, 1973 could not be exercised for a particular individual or accused, and if at all, the principle of 'audi alteram partem' ha~ to be complied with; that the Notification . dated 20. 5.

2006 was vitiated a~ copy thereof was not supplied to the appellant; that changing the venue of the Court inside the District Jail would violate the right of the appellant to be tried in an open court. Dismissing the appeal, the Court HELD: Per Dalveer Bhandari, J 1. 1The 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 0 hearing the accused and this would not violate his fundamental rights guaranteed 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. * [para 153. IV] [998-C-D] *Kehar Singh vs. State (Delhi Administration) 1988 (2) Suppl. SCR 24 = 1988 sec (3) 609, relied on. 1. 2. In the instant case, the record indicates 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, other 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. After assessing the ent+re situation, the District Magistrate informed the State Government that trial of the appellant was not possible in the District Court of Siwan. Pursuant to the report of the District Magistrate, the Law Secretary, Government of Bihar made a request to the High Court for designation of Court of Session 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 High Court as also by the State Government in consultation with the High Court for sitting and establishment of courts for expeditious trial of cases pending against the appellant. [Para 38 and 39] [953-G-H; 954-A-D] 2. 1. This Court in Kehar Singh's case has held that the order of the High Court notifying the trial of a particular case in a place other than the court house is not a judicial order but an administrative order. It is clear from the wordiny of Section 9 of the Code of Criminal Procedure, 1973 that there is no need for the High Court to give ·a hearing while deciding the venue of the trial. It is, therefore, clear that there is no statutory right for the appellant to be heard. [Para 103-105) [979-G-H; 980-A-F- H] 2. 2. The principles of natural justice are essential to the framework of our laws and protection against arbitrary actions.

It is the bounden duty of the courts to judicially review administrative actions. However, this power has to be exercised judiciously. In the instant case, 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. When there is no prima facie violation of the principles of natural justice then one must properly consi-der whether there is need for a judicial review of the orders of shifting the trials. [Para 105, 108, 110 and 111] [981-D-E; 982-C-D] [2010] 3 S. C. R. State Bank of Patiala & Others v. S. K. Sharma (1996) 3 sec 364, relied on. Wiseman & Another v. Borneman & Others (1971) A. C. 297; Regina v. Gaming Board for Great Britain (1970) 2 Q. B. 417, referred to. 3. 1. The decision to hold the trials of cases of the appellant in jail was taken in pursuance of the notification dated 20. 5. 2006 issued by the High Court.

The State Government issued two notifications on 7th June, 2006 in pursuance of the notification of the High Court dated 20. 5. 2006. It became imperative for the State to issue the said notifications because of the Notification of High Court dated 20. 5. 2006 particularly when the new venue of the trial, i. e. , Siwan Jail, was not within the control of the High Court. All the three notifications are valid and were issued in consonance with the relevant provisions of law. [para 153. 11 and Ill] [997-G-H; 998-A-B] 3. 2. After the High Court took the decision to establish a Court of Additional District and Sessions Judge in the Siwan District Jail, necessary correspondence/instruments/requests were sent by the High Court for implementation of its decision, which ultimately culminated in the two Notifications issued by the State Government on 7th June, 2006 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. [para 52] [959-B-D] 4. A notification empowering a Court of Session to sit and hold a trial inside the jail is not outside the purview of s. 465 of the Code. It would come within the meaning of "other proceedings" "during a trial", because as per the admission of the appellant the trial has already been started. [Para 57] [961-A] 5. It cannot be said that the entire trial would vitiate because of non-supply of a copy of the notification dated 20. 5. 2006 to the appellant in time. The High Court was correct in ordering that a copy of the notification be supplied to the appellant. 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. [para 141 and 153. I] [994-G-H; 997-E-F] Managing pirector, ECIL, Hyderabad etc. etc. v. B. Karunakar etc. etc. (1993) 4 SCC 727; and State Bank of Patiala & Others v. S. K. Sharma (1996) 3 SCC 364, relied on. 6. 1. Criminal trial is a public event. What transpires is a public property. Therefore, open trial is the universal rule and must be scrupulously adhered to. The right to public trial has also been recognized u/s 327 of the Code. Public trial is an important part of the judicial system. Every criminal act is an offence against the society. The people are, therefore, entitled to know whether the justice delivery system is adequate or inadequate; whether it responds appropriately to the situation or it presents a pathetic picture. The other aspect, which is still more fundamental, is that when the State representing the society seeks to prosecute a person, it must do so openly.

In dispensation of justice, the people should be satisfied that the State is not misusing its machinery viz. the Police, the Prosecutors and other Public Servants. The people may see that the accused is fairly dealt with and not unjustly condemned. [para 102,131,132 and 145] {979-C; 989-C-D; 990-B-C; 995-D-E] Kehar Singh vs. State (Delhi Administration) 1988 (2) Suppl. SCR 24 =1988 sec (3) 609, relied on. Ajit Kumar Nag v. General Manager (P. J. ), Indian Oil Corporation Ltd. ; Haldia & Others (2005) 7 SCC 764, referred to Scott & Another v. Scott: 1913 A. C. 417, referred to. Cooley's Constitutional Law, Vol I, 8th edn. , at page 647, referred to. 6. 2. There is yet another aspect. The courts like other institutions also belong to people. They are as much human institutions as any other, and could survive only by the strength of public confidence. The public confidence can be fostered by exposing courts more and more to public gaze.

Public access is essential if trial adjudication is to achieve the objective of maintaining public confidence in the administration of justice. 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. It restores the balance in cases when shocking crime occurs in the society. [Para 132, and 142-144] [990-C-D; 995-A-C; 994- G-H] Kehar Singh vs. State (Delhi Administration) 1988 (2) Suppl. SCR 24 =1988 SCC (3) 609; and Naresh Shridhar Mirajkar v. State of Maharashtra (1966) 3 SCR 744, relied on. "First Amendment Right of Access to Pretrial Proceeding in Criminal Cases" by Beth Hornbuckle Fleming Emory Law Journal, V. 32 (1983) P. 619, referred to. Gannett Co. Inc. v. Danial A. DePasquale (1979) 443 U. S. 368; Richmond Newspapers, Inc. et al v.

Commonwealth of Virginia et al SSL Ed 2d 973 = (1980) 448 US 555; Globe Newspaper Co. v. Superior Court for the County of Norfolk (1982) 457 US 596 : 73 L. Ed. 2d 248, referred to. 6. 3. Although the universal rule as recognized in all 8 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. However, in order to ensure that the right of the appellant to a public trial is not vitiated by the court being set up inside the jail, the State must demonstrate that: (a) there is a clear and logical reason as to why the case was transferred from the court house to the Jail; and (b) nobody is being denied entry to the court room as long as they agree to 0 the regular security checks.

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 trial. 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 appellant being a sitting M. P. , his supporters and the large crowds were making a fa. ir trial impossible and creating delays in deciding the cases. Besides, since the appellant was wanted in many cases, other criminal groups could also attack him. 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.

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 the supporters of the appellant. [para 110, 127,138,139,146,149 and 154) [982~ [2010) 3 S. C. R. B; 987-D-E-H; 993-G-H; 994-A-B; 998-F-G] Alfred Thangarajah Durayappah of Chundikuly v. W. J. Fernando & Others (1967) 2 AC 337, referred to. 6. 4. There is no presumption that a trial in prison is 8 not an open trial. The appellant has merely stated that the trial of his cases 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 order to establish that the appellant's right to a open trial has been denied, the appellant has to prove more than mere shifting of the location of the trial. It has been shown by the respondents that no one had been prevented from attending or watching the trial.

Apart from appellant's 38 lawyers, the public and the press used to attend 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, jn the instant case no real prejudice has been caused to the appellant. [Para 112,117, 119, 121 and 153V] [983-A-B; 984-C; 985-8-C-F; 998-D-E] K. L. Tripathi v. State Bank of India & Others (1984) 1 SCC 43; R. Balakrishna Pillai v. State of Kera/a (2000) 7 SCC 129; Jankinath Sarangi v. State of Orissa (1969) 3 SCC 392; A. K. Roy & Others v. Union of India & Others (1982) 1 SCC 271 and Sahai Singh v. Emperor AIR 1917 Lah. 311, referred to. Samuel H. Sheppard v. E. L. Maxwell 384 U. S. 333 (1966); Press-Enterprise Co. v. Superior Court 478 U. S. 1 (1986); State of Oregon v. James Donald Jackson 178 Or App 233, 36 P3d 500 (2001); Stephen Gary Howard v Commonwealth of Virginia 6 Va. App. 132 (1988); Adolph Dammerau v. Commonwealth of Virginia 3 Va. App.

285 (1986); The People v. Robert England the Court 83 Cal. App. - MD. SHAHABUDDIN v. STATE OF B! HAR & ORS. 921 4th 772 (2000); Malloch v. Aberdeen Corporation (1971) 1 W. L. R. 1578; and George v Secretary of the State for the Environment (1979) 77 L. G. R. 689 (1979), referred to. Union of India & Another v. Tulsiram Patel & Others 1985 (2) Suppl. SCR 131 = (1985) 3 sec 398 ; E. P. . Royappa v. State of Tamil Nadu 1974 (2) SCR 348 = (1974) 4 SCC 3; Maneka Gandhi v. Union of India 1978 (2) SCR 621 =(1978) 1 SCC 248; Delhi Transport Corporation v. D. T. C. Mazdoor Congress & Others 1990 (1) Suppl. SCR 142 =1991 (Supp) 1 SCC 600; D. ~. Yadav v. J. M. A. Industries Ltd. 1993 (3) SCR 930 = (1993) 3 SCC 259; State of WB. v. Anwar Ali Sarkar AIR 1952 SC 75; Krishan Lal v. State of J&K 1994 (2) SCR 149 = (1994) 4 SCC 422; State of Karnataka v. Kuppuswamy Gownder & Others 1987 (2) SCR 295 = (1987) 2 SCC 74; Ranbir Singh v. State of Bihar (1995) 4 SCC 392; Zahira Habibul/ah H.

Shaikh & Another v. State of Gujarat & Others (2004) 4 SCC 158; Ranjit Singh v. Hon'ble the Chief Justice & Others ILR 1985 Delhi 388; Kai/ash Nath Agarwal & Another v. Emperor AIR (34) 1947 Allahabad 436; re M. R. Venkataraman AIR (37) 1950 Madras 441; re T. R. Ganeshan AIR (37) 1950 Madras 696; Prasanta Kumar Mukerjee v. The State AIR (39) 1952 Calcutta 91 Narwarsingh & Another v. State AIR 1952 Madhya Bharat 193, cited. Per Dr. Mukundakam Sharma, J (Concurring) 1. 1. A bare reading of the provisions of s. 9(6) of the Code of Criminal Procedure, 1973 explicitly indicates that the power conferred on the High Court is the power to determine the place or places where the Court of Session 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 Session shall be the place notified by the High Court.

However, being an exception, the Code specifically mandates in the second [2010] 3 S. C. R. 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 Session may hold its sittings at a place other than the place or places notified by the High Court. [Para 14] [1007- A-E] 1. 2. In the instant case, the essential conditions ingrained in the second part of s. 9(6), are not applicable inasmuch as the power to change the venue of the trial of cases pending against the appellant, was exercised by the High Court and not by the Court of Session. The power of the High Court uls 9(6) to notify a particular place or places where the Court of Session shall ordinarily hold its sitting is an administrative power unlike the power of the Court of Session under second part of s. 9(6) which is a purely judicial power in nature.

Being so, the High Court was under no obligation to observe the rule of audi alteram partem. 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. [Para 15, 17, 21 and 25] [1008- 8-D; 1009-D-E; 1012-B-C; 1013-D-E] Kehar Singh vs. State (Delhi Administration) 1988 (2) Suppl. SCR 24 =1988 SCC (3) 609; Union of India v. Col. J. N. Sinha, (1970) 2 SCC 458; Haradhan Saha v. State of W. B. 1975 ( 1 ) SCR 778 = (1975) 3 SCC 198 ; Olga Tellis v. Bombay Municipal Corporation 1985 (2) Suppl. SCR 51 =(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 sec 764, relied on. 1. 3. The second part of s.

9(6) of the CrPC expressly requires the Court· of Session 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 s. 9(6r. The omission of such a requirement in case of the High Court pertaining to first part of sub-section (6) of s. 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. [Para 22] [1012-D- F] 1. 4. Even otherwise, it is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is the 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.

[Para 23] [1012-F-G] Ansal Properties & Industries Ltd. v. State of Haryana 2009 (1) SCR 553 = (2009) 3 sec 553, relied on. 1. 5. As regards the constitutional validity of s. 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 proceedings and in its absence no such issue could be allowed to be raised, argued and decided. [Para 26] [1013-F-G] 2. 1. 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. [Para 16] [1008-G-H; 1009- A] (2010] 3 S. C. R. 2. 2. By issuing ttie notification dated 20. 5. 2006, 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 notification did not, in any manner, affect or abridge the jurisdiction of the Court of Session, 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 instant case cannot be said to be a case of "transfer" to which the provisions of s. 407 are attracted. [Para 16) [1009-A-C) 3. 1. Section 11 CrPC makes it explicitly clear that a Court of Judicial Magistrate could be established by th~j 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 courts of Judicial Magistrate First Class so as to try any particular case or class of cases. [Para 27) [1014-A-C] 3. 2. By issuing one of the two impugned notifications dated 7. 6. 2006 the State of Bihar, in exercise of its powers conferred u/s 11 of the CrPC and in consultation with the High Court, established a Court of Judicial Magistrate, First Class inside the District Jail, Siwan to hold its sitting for the trial of cases pending against the appellant in the Court of Judicial Magistrate, First Class.

The impugned notification satisfies all the requirements and all the four corners as envisaged u/s 11 of the Code and, therefore, the said notification is legal and valid inasmuch as, the same was issued by the competent authority and also in full compliance with the requirements and the safeguards provided in the said provisions. [Para 43) [1020-G-H; · 1021-A-B] 3. 3. So far the other notification issued by the Government of Bihar on 07. 06. 2006 directing that the Court of Additional District and Sessions Judge of Siwan Sessions Division would hold its sitting inside the District Jail, Siwan to try sessions cases pending against the appellant is concerned, it appears to be a surplusage, which was issued for making available the jail premises for the purpose of holding the Court of Session. The power u/s 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.

Any further notification by the State Government making the jail premises available for the said purposes cannot be said to be illegal and void. [Para 44) [1021-C-F] 3. 4. There is thus no infirmity in establishing both the Special Courts i. e. the Court of Additional District and Sessions Judge to try sessions cases and the Court of Judicial Magistrate, First Class to try the other cases, pending against the appellant, inside the premises of the District Jail, Siwan as the notification u/s 9(6) was issued in accordance with the provisions of law by the High Court and subsequent notification was also issued by the State Government in consultation with the High Court. [Para 45) [1021-G-H; 1022-A-B] 4. 1. The issue whether the notification dated 20. 5.

2006 was published in the official Gazette or not or whether a copy thereof was supplied to the appellant or not, 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 the appeal petition. Italso does not appear 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 appeal before this Court cannot be permitted to be raised. [Para 32) [1015-B-D] Shakti Tubes Ltd. v. State of Bihar, 2009 (10) SCR 739 =(2009) 7 sec 673, relied on 4. 2. However, from the records, it is conclusively established that the High Court took all necessary steps to get the notification issued and published in the official 8 gazette.

If 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 ~eclared to be void, particularly, when it was so published in the official gazette, as it is established from the records placed before the Court, although after some delay. [Para 42] [1020-B-D] 5. 1. It cannot be said that reference of the provisions of s. 14 (1) of the Bengal, Assam and Agra Civil Courts Act, 1887 apart from referring to the provisions of s. 9(6) CrPC in the notification dated 07. 06. 2006 issued by the State Government indicates non-application of mind by the competent authority and on that ground the notification was illegal and void. 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 the instant case, for making available the jail premises to hold the Court of Session, provisions of s. 9(6) CrPC would be applicable. [Para 46,47 and 49] [1022-8-E; 1023-E] N. Mani v. Sangeetha Theatre,. (2004) 12 SCC 278, relied on. 5. 2. 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 it can be shown to be within ;ts 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 the act of a public servant must be ascribed 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 s. 114 Ill.

(e) of the Evidence Act, 1872 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. [para 48) [1022-G- H; 1023-A-B] P. Balakotaiah v. Union of India, 1958 SCR 1052 =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 (1) SCR 406 = (1992) 2 SCC 343; B. S. E. Brokers' Forum, Bombay v. Securities And Exchange Board of India, (2001) 3 SCC 482, relied on. 6.

As regards the plea that the power and jurisdiction u/s 9(6), CrPC could not be exercised by the High Court in respect of the trials relating to one particular individual pending in one Sessions Division, 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. There were about 40 cases pending against the appellant and they were being tried in different courts. Difficulties were being created for conducting the said cases at various courts both for the prosecution as also to the appellant. Therefore, disposal 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.

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 manner. [Para 50-51 and 57] [1023-F-H; 1024-A-C-D; 1028-E-F] 7. 1. So far as the plea that a trial must be conducted in an open court and the constitution of a special Court of Session in the jail pi:. emises of District Jail, Siwan amounts to violation of Articles 14 and 21 of the Constitution of India as also of the provision contained in s. 327 CrPC is concerned, although the general rule is 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 instant case. A trial does not stand vitiated solely because it is conducted inside the jail premises. What is significant is that there must be compliance of the provisions contained in s. 327 CrPC which guarantees certain safeguards to ensure that a trial is an open trial. [Para 53-55] [1025-8-C; 1026-8-C- F-H] Kehar Singh vs. State (Delhi Administration) 1988 SCC (3) 609, relied on. R. v. Denbigh Justices, (1974) 2 All ER 1052, 1056 (Q8D), relied on. · Black's Law Dictionary (6th Edition, 1990, p. 1091),, referred to. - 7. 2.

In the instant case, a general notice inviting the public to witness the trial of the 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 A reported in the newspapers daily; and entry was allowed to all persons after recording their personal details into a register maintained by the jail authorities. It has also not been shown that any permission sought for by any intending person to witness the proceedings was B refused by the authority. In this view of the matter, there was sufficient compliance with ! ;. 327 CrPC. (Para 56) [1027-G-H; 1028-A-8] West Bengal v. Anwar Ali Sarkar, 1952 SCR 284 =AIR C 1952 SC 75 held in applicable. 7. 3.

It must be noted that in the instant case, 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 D Code of Criminal Procedure. Thus, no prejudice was caused to the appellant while shifting the cases to the Special Courts situated inside the premises of District Jail, Siwan. Therefore, there is no violation either of s. 327 CrPC or of Articles 14 and 21 of the Constitution. The. E legality and the validity of all the three notifications is upheld. 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. The order passed by the High Court F is upheld.

[Para 57, 60 and 61) (1028-G-H; 1029-A-E-G] Case Law Reference: Judgment by Dalveer Bhandari, J G 1952 SCR 284 not applicable para 11 AIR 1936 Privy Council 246 referred to para 14 (1913) A C 417 referred to para 14 65L Ed 2d 973 referred to para 15 H 1988 (2) Suppl. SCR 24 relied on para 27 (1966) 3 SCR 744 relied on para 27 1985 (2) Suppl. SCR 131 cited para 28 1974 (2) SCR 348 cited para 28 1978 (2) SCR 621 cited para 28 1990 (1) Suppl. SCR 142 cited para 31 1993 (3) SCR 930 cited para 32 1994 (2) SCR 149 cited para 33 1987 (2) SCR 295 cited para 54 (1982) 1 sec 211 referred to para 72 AIR 1917 Lah. 311 referred to para 73 AIR (34) 1947 Allahabad 436 referred to para 74 AIR (37) 1950 Madras 441 referred to para 75 AIR (37) 1950 Madras 696 referred to para 76 AIR (39) 1952 Calcutta 91 referred to para 77 AIR 1952 Madhya Bharat 193 referred to para 77 (1996) 3 sec 364 relied on Para 105 (1971) A. C. 297 referred to para 107 (1970) 2 Q. B.

417 referred to para 108 (1967) 2 AC 337 referred to para 111 384 U. S. 333 (1966) referred to para 114 478 U. S. 1 (1986) referred to para 114 178 Or App 233, 36 referred to para 115 P3d 500 (2001) 6 Va. App. 132 (1988) referred to para 115 3 Va. App. 285 (1986) referred to para 116 83 Cal. App. 4th 772 (2000) referred to para 118 (1971) 1 W. L. R. 1578 referred to para 120 (1984) 1 sec 43 referred to para 122 (1979) 77 L. G. R. 689 (1979) referred to para 123 AIR 1917 Lah. 311 referred to para 118 (2000) 1 sec 129 referred to para 124 (1969) 3 sec 392 referred to para 125 (2005) 1 sec 764 relied on para 134 (1982) 457 us 596 : referred to para 135 73 L. Ed. 2d 248 (1993) 4 sec 121 relied on para 140 Judgment by Dr. Mukundakam Sharma, J. 1988 (2) Suppl.. SCR 24 relied on para 12 (1970) 2 sec 458 relied on para 19 1975 (1) SCR 778 relied on para 20 1985 (2) Suppl. SCR 51 relied on para 21 (1989) Supp.

2 sec 462 relied on para 21 (2005) 1 sec 764 relied on para 21 2009 (1) SCR 553 relied on para 23 2009 (10) SCR 739 relied on para 32 (2004) 12 sec 218 relied on para 47 1958 SCR 1052 relied on para 48 [2010] 3 S. C. R. (1966) 1 SCR 120 relied on para 48 1992 (1) SCR 406 relied on para 48 (2001) 3 sec 482 relied on para 48 (1974) 2 All ER relied on para 54 10521056 (QBD) 1952 SCR 284 held in applicable para 57 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 591 of 2010. From the Judgment & Order dated 14. 8. 2007 of the High Court of Judicature at Patna in Criminal Writ Jurisdiction Case No. 553 of 2006. Ram Jethmalani, Pranay Ranjan, Lata Krishnamurthy, P. R. Mala, Sourab Ajay Gupta, Praneet Ranjan for the Appellant. Ranjeet Kumar, P. H. Parekh, Gopal Singh, Manish Kumar, Ajay Kumar Jha, Divya Sinha, Vishal Prasad (for Parekh & Co. ) for the Respondents. The Judgment of the Court was delivered by 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 1dated 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 Session for the Sessions Division of Siwan for the expeditious trial of Sessions cases pending against Md. Shahabuddin. 4. The appellant is also aggrieved by the two notifications bearing No. A/Act-01/2006 Part-1452/J corresponding to S. O. No. 80 dated 7. 6. 2006 and No. A/Act-01/2006 Part-1453/J corresponding to S. O. No. 82 dt. 7. 6. 2006 issued by the State of Bihar at the behest of the High Court of Patna.

The State of Bihar has established a Court of Judicial Magistrate 1st Class inside the District Jail, Siwan and directed that: (a) the Court of Judicial Magistrate 1st Class, Siwan shall now hold its sitting inside the District Jail Siwan for trial of cases pending against the appellant Md. Shahabuddin in the Court of Judicial Magistrate 1st Class; and (b) This notification shall come into force with effect from the 7th June, 2006. 5. The appellant is further aggrieved by another notification issued on the same day by which the court of the Additional District & Sessions Judge of Siwan Sessions Division was directed to now hold its sitting inside the District Jail, Siwan to try Sessions cases pending against the appellant Md. 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 [201 O] 3 S. C. R. 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 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 (6) The Court of Session 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 Government has no say in th~ matter. I 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 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 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 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 execute 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 dismiss~d, 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 transferre,d from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under section 197. " 11. Mr. Jethmalani further submitted that power under Section 407 of the Code can be exercised after hearing all the concerned parties. He heavily relied on the judgment of this court in State of West Bengal v.

Anwar Ali Sarkar & Another AIR 1952 SC 75 and particularly placed reliance on para 37 which reads as under: "37. Speedier trial of offences may be the reason and motive for the legislation but it does not amount either to a classification of offences or of cases. As pointed out by Chakravarti J. the necessity of a speedy trial is too vague and uncertain a criterion to form the basis of a valid and reasonable classification. In the words of Das Gupta J. , it is too indefinite as there can hardly be. any definite objective test to determine it. In my opini0n, 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 concemeCI 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 a(ld 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 of 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 , I process of classification 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 8 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 a're 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) AC 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 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 WesJ 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 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. I ' 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 procesl? es 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. 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 iorbids elasad 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. Hamey, 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 and arbitrariness, which in turn spawns disrespect for law. Pub! ic 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 8 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 ·A 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 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 rr 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 c 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 paragraph: "93. Bhagwati, J. , reaffirmed in Maneka Gandhi case (1978)1 sec 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 G 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. Arlicle 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 Arlicle 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) 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 gpportunity 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. li'lis 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. lndustrie_s_Ltd. (1993). 3 sec 259, wherein vide para 10, the court observed thus: "' "10. In State of WB. 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 sec 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 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 . A 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 sec 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 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 8 reads as under: "No.

184A:- In exercise of powers conferred under subsection (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 Session 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 te 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 cf the court can be done by the State Government in consultation with the High Court. He referred to the notification dated 20. 5. 2006 and notifications corresponding to S. O. Nos. 80 and 82 both dated 7. 6. 2006. The notifications establishing the court were issued in consonance with the scheme of the Act. 37. Mr. Ranjit Kumar has drawn our attention to the counter affidavit filed by the State in extenso. In the said counter affidavit filed by the State it is mentioned that the reign of terror created by the appellant and his 'private army' in the last two decades is beyond imagination.

Some of the notorious crimes committed by the appellant and his gang of criminals and the extent to which he has been interfering . with the administration of justice, has been enumerated in the counter affidavit. It would be pertinent to recapitulate the same as under: "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 the way he did as he chose and before finally arriving at the Beur Jail Patna, he even visited his relative and minister Sh. lzazul 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 [::::>ALVEER BHANDARI, J. ] 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 cooperated 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. " 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 8 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 Session 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 a/teram 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 8 was created by tt:e High CoU,rt 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 i! l 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 Court, he has been convicted in 3, acquitted in 3 and 7 cases are st~I 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 ah 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.