In Re: M.R. Venkataraman

Panchapakesa Ayyar, J.—These are two petitions for revising the order of the Additional First Class Magistrate, Cuddalore, in C. C. Nos.

552 and 568 of 1949, directing the trial of the petitioners in those two cases to take place in the civil debtor''s yard of the Cuddalore Central Jail

and dismissing the petitions put in by these petitioners to hold the Court in the Additional First Class Magistrate''s own Court house or other

suitable Court house and not in the civil debtor''s yard. C. C. No. 552, of 1949 is a case concerning 80 accused, including the petitioner in Cri. B.

C. No. 1624 of 1949, and the offences therein are offences under Sections 147, 332, 353 and 149, Penal Code. C. C. No. 568 of 1949 is

against 26 accused, including the petitioner in Cri. R. C. No. 1625 of 1949, and comprises, offences under Sections 147, 332 and 149, Penal

Code. Some of the accused in both the cases are detenus, and some others are convicts. The petitioner in both these criminal revision cases is a

detenu and is accused 1 in both the cases.

I have perused the connected records, and heard the learned counsel for the petitioner and the learned Public Prosecutor contra. The learned

counsel for the petitioner raised several contentions. The first was that, u/s 352, Criminal P. C., a presiding Judge or Magistrate has himself to

decide about the venue of the trial, and cannot consult any other persons, like the District Magistrate, as in these two cases. I cannot agree. The

Magistrate has, no doubt, himself to decide the venue. But there is nothing in law to prevent him from consulting his superior officers, or even

others likely to give suitable advice, before arriving at his decision. Thus, a Sub-Divisional Magistrate camping in an out-of-the-way place has

under our law, to try cases and has often to hold his Court in a traveller''s bungalow, a Hanuman temple, or even under a village banian tree near

his tent. He cannot himself know the amenities in all the places he proposes to camp at, and he will have to consult his superior officers, or others

competent to give advice and acquainted with the places, about the suitable place for holding his Court in such, camps, and then decide himself

where he will hold his Court. So long as a Judge or Magistrate decides for himself finally about the venue, without being fettered by the advice of

any unauthorised person, I see nothing wrong about it. It will be only like a Judge or Magistrate hearing a vakil about the right decision in a case,

and then arriving at his own decision which some-times may coincide with the decision advocated by one party.

The next contention was that, in any event, the trial ought to be held only in a Court house or similar buildings. I have already held above that,

under our system of touring Magistrates, Courts cannot always be held in the Court house, and will have often to be held in other places.

The next contention was the most important one, namely, that the place chosen for holding a Court by a Judge or a Magistrate must be open to

the public generally, and that a Court must not be held in a place causing apprehensions to the accused regarding a fair trial, or smacking of privacy

or exclusion of the public. There is no doubt that, generally, Courts should under the law of our land and u/s 352, Criminal P. C., be held only in an

open and public place to which the public generally may have access, so far as the place can conveniently contain them, provided of course, that

the presiding Judge or Magistrate may, if he thinks fit, order, at any stage of any enquiry or trial in a particular case, that the public generally, or any

particular person, shall not have access to, or be, or remain in, the room or building used by the Court. The House of Lords has, no doubt, held in

Scott v. Scott (No. 1), (1913) A. C. 417 : 82 L. J. P. 74, that even a nullity suit or other matrimonial suit-cannot be held by the Probate, Divorce

and Admiralty division in camera even in the interests of public decency. But, that ruling will not strictly apply to this country, and to the Courts

here, which are governed by Section 352, Criminal P. C., where liberty is given to a Judge to exclude certain persons in certain circumstances, for

valid reasons appealing to the trying Magistrate or the Judge. But the general principle, that a trial should be held in a public place, and that all the

members of the public should have access to it, as far as may be, has not been disputed by any one in this country. In fact, in this country, even go

far back as 3000 years, Hindu law givers have directed that a Court should be held in a public place, and cabinet meetings in a secret place; that

the proceedings of a cabinet meeting should always be secret, while the proceedings of a Court should always be public; and that the decisions of

a Court shall always be pronounced fully and openly, and the decisions of the Cabinet never pronounced fully or openly, and, even when

published, should be only in the form edited by the members of the Cabinet. That is also the general rule followed now in all the civilized countries.

But there are recognized exceptions to this rule. Just as poison should not be administered to the human system when it is healthy, and it will be an

offence to do so, but, nonetheless, exceptions exist, like the administration of arsenic and mercurial medicines to a diseased system, so too, in

extraordinary circumstances, there will be need to relax the above rule of law about Courts. That is why Section 352, Criminal P. C., itself makes

provision for such contingencies. Lack of space in the Court house may justify a Judge or a Magistrate in admitting only a limited number of

members of the public in the interests of public health and hygiene. So too, when indecent and obscene matters have to be canvassed during a trial,

Judges and Magistrates in India may well have a discretion to exclude women, children and others likely to be injuriously affected by hearing that

stuff. In the same way, there will be a discretion for the Judge to bold his Court in a suitable building, public or private, other than his court house,

but unconnected with the parties to the proceedings, in cases of emergency. Thus, if a cyclone, like the recent one in Andhra Desa, brings down

the court house, the Judge or Magistrate cannot sit idle, on the ground that his court house is not available for trials, but should apply at once to his

superior officers, or to the Government, for placing another suitable building at his disposal, and carry on his work. So too, if a District is in a

turbulent state, and the place where the court house is located is in the possession of a riotous mob, he can hold his court in any other suitable

building. Again, if the conveyance of prisoners and the accused to and from the court house or other buildings, will be attended with serious danger

of attack, and the rescue of the accused or the prisoners, or with heavy cost to the Government in providing an armed escort, it may well be within

the powers of the Judge or Magistrate, after due consideration of the public interests and after writing down the reasons in each case, to hold the

trials even inside the jail premises, where the accused are confined, let alone any building outside the jail premises, provided that the offences tried

are not connected with those premises, and there is no apprehension therefore in the minds o� the accused that they may not get a fair trial there.

But this is an exceptional thing, like medicine and should not be made a usual thing, like making medicine the daily food. It is common knowledge

that, in all civilized countries, passengers travelling without tickets are often tried summarily on railway platforms by Magistrates specially deputed

for the purpose and who have not even a separate building for holding the trials. But, of course, such persons as care to witness such trials are

allowed to witness them. All these exceptions will, in my opinion, not be contrary to the rule of the Privy Council in Mcpherson v. Mcpherson,

(1936) A. C. 177 : 105 L. J. P. C. 41. The decision there, that the holding of the trial in the Judge''s law library behind a swinging door, which was

kept closed by accident and had the inscription ""private"" on it, vitiated a trial, was based on the facts of that case where nothing extraordinary had

to be taken into account and where the trial could well have been held in the Court hall itself. No member of the public went there also on a

misapprehension of the word ""private."" The general principles laid down there simply emphasise the fact that Courts must be held in public,

normally, and that members of the public should be allowed to be present as far as they can be, regard being had to the size of the buildings, etc.,

as the potential presence of the public necessarily invests the proceedings with some degree of formality and dignity.

In Emperor v. Kailashnath, I. L. R. (1947) ALL. 657 : A. I. R. 1947 ALL. 436: (1947) Cri. L. J. 868, it has been held that it is not illegal for a

Magistrate to hold an enquiry, in a proper case, inside the jail premises, or anywhere else, but that the place where the enquiry is held must be

deemed to be an open Court where the public, as such, has a right to attend although such right may be controlled in proper cases on special

grounds, and that a Magistrate owes a duty to see that proper facilities are given to the members of the Bar and the members of the public who

cannot be restricted by the jail rules or by the officer in-charge of the jail. In Sahai Singh v. Emperor, AIR 1917 Lah. 311: (1917) Cri. L. J. 852, a

trial held inside the jail, in the interests of safety, was held to be not vitiated. But, of course, as already stated, a trial in the jail premises should only

be held in the most exceptional circumstances, where the needs of the situation are imperative, and afford no alternative, consistent with the safety

of the prisoners and the need to save the Government from extravagant and unnecessary expenditure.

The learned Public Prosecutor relied upon Section 20 , Criminal Rules of Practice which prohibits the removal of State prisoners or prisoners

under sentence of death from the jail premises without the special sanction of the Government for giving evidence under the Prisoners'' Testimony

Act, and wants such evidence, when necessary, to be recorded inside the jail. But, of course, Rule 20, Criminal Rules of Practice does not apply

to trials of State prisoners for offences committed by them, whether inside or outside the jail, and only relates to evidence recorded from them.

Still, of course, there is the analogy there of State prisoners being tried inside the jail premises in exceptional cases.

The next contention of the learned counsel for the petitioner was that the learned Additional First Class Magistrate was not justified in stating in

his order that the Court can be held by him anywhere in his jurisdiction. I agree. A Court is not allowed to be held anywhere within a Magistrate''s

jurisdiction. Thus, for instance, a Judge or Magistrate cannot hold the Court in the complainant''s house or the accused''s house without the

strongest reasons to be recorded in writing and appealing to all men as sound. It is also desirable for a Magistrate, whenever he has got a court

building, as here, to record reasons for holding the trial outside the Court building, in another place The learned Magistrate has not given in his

order any reasons of public safety, or of danger, or of extravagant expense to the Government, for his decision to hold the trial in Civil Debtor''s

yard of the Central Jail, Cuddalore. The Civil Debtor''s yard of the Central Jail is also alleged, by the learned counsel for the petitioner, to be part

of the Central Jail premises and to be under the control of the Superintendent of the Central Jail. The name of the place also seems to support his

contention. As these offences admittedly took place against the jail officials and inside the jail premises, it is, in my opinion, desirable that some

place outside the jail premises, and outside the control of the jail authorities, should be chosen for trying these two cases. It is not impossible to find

such a place. In my opinion also, usually, the trial should not be held inside jail premises, leading to the apprehension that the trial hall is only the

antechamber to the jail closely. In the circumstances of this case, I am of opinion that the trial should be held in some other place than the Civil

Debtor''s yard, and I direct the District Magistrate of South Arcot to choose some other convenient and suitable place for trying these two cases,

and to place it at the disposal of the Additional First Class Magistrate.