1

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 20

th

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

2

behest of the High Court of Patna. The State of Bihar has

established a Court of Judicial Magistrate 1

st

Class inside the

District Jail, Siwan and directed that:

(a) the Court of Judicial Magistrate 1

st

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 1

st

Class; and

(b) This notification shall come into force with effect from the

7

th

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

3

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

4

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

5

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

6

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

7

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

8

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 (6

th

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

9

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.

10

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 2

nd

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

11

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

12

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

13

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 20

th

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 20

th

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.

17

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, 1

st

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 20

th

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 20

th

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 20

th

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 20

th

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 20

th

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 20

th

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 20

th

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 20

th

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 20

th

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 20

th

May, 2006 in

the next issue of Bihar gazette (copy of this

letter was also submitted by the Counsel for

appellant in the High Court during the course

of hearing on the last day).

j. The Patna High Court notification dated 20

th

May, 2006 issued under Section 9(6) of the

Code was forwarded by the Registrar General

of the High Court vide letter Nos.5146-49 of

even date to the District and Sessions

Judge/The Chief Judicial Magistrate,

Siwan/Secretary to the Government of Bihar

(Law), Judicial Department, the Secretary,

Department of Personnel and Administrative

Reforms for information and necessary action.

52. It will, thus, be seen from the above chronology that

after the High Court took the decision to establish a Court of

Additional District and Sessions Judge and of the Judicial

Magistrate First Class in the Siwan District Jail, necessary

correspondence/instruments/requests were sent by the High Court

for implementation of the decision of the High Court in seriatim

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 7

th

June, 2006 respectively and

also culminated in the Notification of the 20

th

May 2006 being

gazetted on 16

th

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 20

th

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”

26

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 16

th

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

27

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

28

20

th

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.

30

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

31

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.”

32

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.

35

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 1

st

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

36

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

9

th

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, 1

st

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, 1

st

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, 1

st

Class.

The matter of posting of the Officers i.e. ADJ and Judicial

Magistrate, 1

st

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 11

th

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, 1

st

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, 1

st

Class, Siwan for his designation as the Presiding

Officer (Special Magistrate) of the Special Court of Judicial

Magistrate, 1

st

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 1

st

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, 1

st

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 20

th

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 20

th

May,

2006 was not gazetted before the consequential notification dated

7

th

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.

4

th

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, 8

th

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

52

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

53

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.”

54

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

55

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.

56

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

57

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

58

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

59

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 7

th

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

60

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

61

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-

68

(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.

70

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.

75

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

78

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

79

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

80

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

81

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,

82

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

83

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, 1

st

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

84

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 11

th

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

86

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

88

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

91

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

92

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

93

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 (6

th

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

94

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

95

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

96

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

97

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

98

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.