MD. SHAHABUDDIN v. STATE OF BIHAR & Ors.

Judgment

1.1The High Court, in view of the extraordinary facts and circumstances of a particular case, is empowered to 0 change the venue of the pending case/trial without hearing the accused and this would not violate his fundamental rights guaranteed under Articles 14 and 21 or any other provision of the Constitution. This controversy is no longer res integra and is fully settled in view of the judgment of this Court in Kehar Singh's case.* [para 153.IV] [998-C-D] E *Kehar Singh vs. State (Delhi Administration) 1988 (2) Suppl. SCR 24 = 1988 sec (3) 609, relied on. F

1.2. In the instant case, the record indicates that by the criminal acts of the appellant reign of terror had spread. The appellant has also earned enemies who would like to seize upon an opportunity and endanger his life if the trial is conducted in general court. G Simultaneously, other criminals owing allegiance to the appellant are likely to create law and order problem including communal tension and endanger the life of the common public during his trial in general court. After assessing the ent+re situation, the District Magistrate informed the State Government that trial of the appellant H MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 915 was not possible in the District Court of Siwan. Pursuant A to the report of the District Magistrate, the Law Secretary, Government of Bihar made a request to the High Court for designation of Court of Session and Court of Judicial Magistrate, 1st Class inside the Siwan Jail premises for expeditious trial of the cases pending against the B appellant. After evaluating and assessing the entire situation, the notification was issued by the High Court as also by the State Government in consultation with the High Court for sitting and establishment of courts for expeditious trial of cases pending against the appellant. c [Para 38 and 39] [953-G-H; 954-A-D]

2.1. This Court in Kehar Singh's case has held that the order of the High Court notifying the trial of a particular case in a place other than the court house is not a judicial order but an administrative order. It is clear from the D wordiny of Section 9 of the Code of Criminal Procedure, 1973 that there is no need for the High Court to give ·a hearing while deciding the venue of the trial. It is, therefore, clear that there is no statutory right for the appellant to be heard. [Para 103-105) [979-G-H; 980-A-F- E H]

2.2. The principles of natural justice are essential to protection against the framework of our laws and arbitrary actions. It is the bounden duty of the courts to F judicially review administrative actions. However, this power has to be exercised judiciously. In the instant case, there is no violation of the principles of natural justice in shifting the trials of the cases of the appellant from a regular court to a special court. When there is no prima G facie violation of the principles of natural justice then one must properly consi-der whether there is need for a judicial review of the orders of shifting the trials. [Para 105, 108, 110 and 111] [981-D-E; 982-C-D] H 916 SUPREME COURT REPORTS [2010] 3 S.C.R. A State Bank of Patiala & Others v. S.K. Sharma (1996) 3 sec 364, relied on. Wiseman & Another v. Borneman & Others (1971) A.C. 297; Regina v. Gaming Board for Great Britain (1970) 2 Q.B. B 417, referred to.

3.1. The decision to hold the trials of cases of the appellant in jail was taken in pursuance of the notification dated 20.5.2006 issued by the High Court. The State Government issued two notifications on 7th June, 2006 in pursuance of the notification of the High Court dated 20.5.2006. It became imperative for the State to issue the said notifications because of the Notification of High Court dated 20.5.2006 particularly when the new venue of the trial, i.e., Siwan Jail, was not within the control of the High Court. All the three notifications are valid and were issued in consonance with the relevant provisions of law. [para 153.11 and Ill] [997-G-H; 998-A-B] C D

3.2. After the High Court took the decision to E establish a Court of Additional District and Sessions Judge the Siwan District Jail, necessary correspondence/instruments/requests were sent by the High Court for implementation of its decision, which ultimately culminated in the two Notifications issued by the State Government on 7th June, 2006 and also culminated in the Notification of the 20th May 2006 being gazetted on 16th August, 2006. There is, therefore, no scope for any person, leave alone the appellant, to contend that the decision was not of the High Court or F G High Court never applied its mind. [para 52] [959-B-D]

#4. A notification empowering a Court of Session to sit and hold a trial inside the jail is not outside the purview of s.465 of the Code. It would come within the meaning of "other proceedings" "during a trial", because as per H MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 917 the admission of the appellant the trial has already been A started. [Para 57] [961-A]

#5. It cannot be said that the entire trial would vitiate because of non-supply of a copy of the notification dated 20.5.2006 to the appellant in time. The High Court was B correct in ordering that a copy of the notification be supplied to the appellant. Initially the copy of the notification was not given to the appellant but on the directions of this Court the same was made available to the appellant. So there is no surviving grievance of the C appellant as far as this aspect of the matter is concerned. [para 141 and 153.I] [994-G-H; 997-E-F] Managing pirector, ECIL, Hyderabad etc. etc. v. B. Karunakar etc. etc. (1993) 4 SCC 727; and State Bank of Patiala & Others v. S.K. Sharma (1996) 3 SCC 364, relied D on. E

6.1. Criminal trial is a public event. What transpires is a public property. Therefore, open trial is the universal rule and must be scrupulously adhered to. The right to public trial has also been recognized u/s 327 of the Code. Public trial is an important part of the judicial system. Every criminal act is an offence against the society. The people are, therefore, entitled to know whether the justice delivery system is adequate or inadequate; whether it responds appropriately to the situation or it presents a pathetic picture. The other aspect, which is still more fundamental, is that when the State representing the society seeks to prosecute a person, it must do so openly. In dispensation of justice, the people should be G satisfied that the State is not misusing its machinery viz. the Police, the Prosecutors and other Public Servants. The people may see that the accused is fairly dealt with and not unjustly condemned. [para 102,131,132 and 145] {979-C; 989-C-D; 990-B-C; 995-D-E] F H 918 SUPREME COURT REPORTS [2010] 3 S.C.R. A Kehar Singh vs. State (Delhi Administration) 1988 (2) Suppl. SCR 24 =1988 sec (3) 609, relied on. Ajit Kumar Nag v. General Manager (P.J.), Indian Oil Corporation Ltd.; Haldia & Others (2005) 7 SCC 764, referred B Scott & Another v. Scott: 1913 A.C. 417, referred to. Cooley's Constitutional Law, Vol I, 8th edn., at page 647, referred to. c

6.2. There is yet another aspect. The courts like other institutions also belong to people. They are as much human institutions as any other, and could survive only by the strength of public confidence. The public confidence can be fostered by exposing courts more and D more to public gaze. Public access is essential if trial adjudication is to achieve the objective of maintaining public confidence in the administration of justice. Publicity is the authentic hallmark of judicial functioning distinct from administrative functioning. Open trial serves E an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. It restores the balance in cases when shocking crime occurs in the society. [Para 132, and 142-144] [990-C-D; 995-A-C; 994- G-H] F G H Kehar Singh vs. State (Delhi Administration) 1988 (2) Suppl. SCR 24 =1988 SCC (3) 609; and Naresh Shridhar Mirajkar v. State of Maharashtra (1966) 3 SCR 744, relied on. "First Amendment Right of Access to Pretrial Proceeding in Criminal Cases" by Beth Hornbuckle Fleming Emory Law Journal, V.32 (1983) P.619, referred to. Gannett Co. Inc. v. Danial A. DePasquale (1979) 443 MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 919 U.S. 368; Richmond Newspapers, Inc. et al v. Commonwealth A of Virginia et al SSL Ed 2d 973 = (1980) 448 US 555; Globe Newspaper Co. v. Superior Court for the County of Norfolk (1982) 457 US 596 : 73 L.Ed. 2d 248, referred to.

6.3. Although the universal rule as recognized in all 8 0 civilized countries governed by rule of law is that the · criminal trial should be a public trial or open trial, but in exceptional cases there can be deviation from the universal rule in the larger public interest. However, in order to ensure that the right of the appellant to a public C trial is not vitiated by the court being set up inside the jail, the State must demonstrate that: (a) there is a clear and logical reason as to why the case was transferred from the court house to the Jail; and (b) nobody is being denied entry to the court room as long as they agree to the regular security checks. The case in hand would fall in the category of those extraordinary and exceptional cases where in the interest of justice it became imperative to shift the venue of the trial. The letters exchanged between the police authorities and the request made to High Court clearly show that there was serious danger E in producing the appellant in open court. The police authorities had shown that the appellant being a sitting M.P., his supporters and the large crowds were making a fa.ir trial impossible and creating delays in deciding the cases. Besides, since the appellant was wanted in many F cases, other criminal groups could also attack him. It must be noted that a large number of supporters of the appellant may create unrest in front of the court room and much larger security would be required to protect the witnesses, the officers of the Court and the appellant. It G is necessary to maintain the discipline of the court which is not only trying the case of the appellant but a large number of other cases which were getting delayed by the presence of a large number of the supporters of the appellant. [para 110, 127,138,139,146,149 and 154) [982~ H 920 SUPREME COURT REPORTS [2010) 3 S.C.R. A B; 987-D-E-H; 993-G-H; 994-A-B; 998-F-G] Alfred Thangarajah Durayappah of Chundikuly v. W.J. Fernando & Others (1967) 2 AC 337, referred to. 8 C

6.4. There is no presumption that a trial in prison is not an open trial. The appellant has merely stated that the trial of his cases has been transferred from the Siwan Court to the Siwan Jail. This in itself does not prove that the trial has been closed to the public. In order to establish that the appellant's right to a open trial has been denied, the appellant has to prove more than mere shifting of the location of the trial. It has been shown by the respondents that no one had been prevented from attending or watching the trial. Apart from appellant's 38 lawyers, the public and the press used to attend to the D court proceedings. The Siwan Jail is only one kilometer from the Siwan Court. The court proceedings were regularly reported in the press. So, jn the instant case no real prejudice has been caused to the appellant. [Para 112,117, 119, 121 and 153V] [983-A-B; 984-C; 985-8-C-F; E 998-D-E] K.L. Tripathi v. State Bank of India & Others (1984) 1 SCC 43; R. Balakrishna Pillai v. State of Kera/a (2000) 7 SCC 129; Jankinath Sarangi v. State of Orissa (1969) 3 SCC F 392; A.K. Roy & Others v. Union of India & Others (1982) 1 SCC 271 and Sahai Singh v. Emperor AIR 1917 Lah. 311, referred to. Samuel H. Sheppard v. E.L. Maxwell 384 U.S. 333 (1966); Press-Enterprise Co. v. Superior Court 478 U.S. 1 (1986); State of Oregon v. James Donald Jackson 178 Or App 233, 36 P3d 500 (2001); Stephen Gary Howard v Commonwealth of Virginia 6 Va. App. 132 (1988); Adolph Dammerau v. Commonwealth of Virginia 3 Va. App. 285 (1986); The People v. Robert England the Court 83 Cal. App. G H MD. SHAHABUDDIN v. STATE OF B!HAR & ORS. - 921 4th 772 (2000); Malloch v. Aberdeen Corporation (1971) 1 A W.L.R. 1578; and George v Secretary of the State for the Environment (1979) 77 L.G.R. 689 (1979), referred to. Union of India & Another v. Tulsiram Patel & Others 1985 (2) Suppl. SCR 131 = (1985) 3 sec 398 ; E. P. B . Royappa v. State of Tamil Nadu 1974 (2) SCR 348 = (1974) 4 SCC 3; Maneka Gandhi v. Union of India 1978 (2) SCR 621 =(1978) 1 SCC 248; Delhi Transport Corporation v. D. T.C. Mazdoor Congress & Others 1990 (1) Suppl. SCR 142 =1991 (Supp) 1 SCC 600; D.~. Yadav v. J.M.A. C Industries Ltd. 1993 (3) SCR 930 = (1993) 3 SCC 259; State of WB. v. Anwar Ali Sarkar AIR 1952 SC 75; Krishan Lal v. State of J&K 1994 (2) SCR 149 = (1994) 4 SCC 422; State of Karnataka v. Kuppuswamy Gownder & Others 1987 (2) SCR 295 = (1987) 2 SCC 74; Ranbir Singh v. State of Bihar (1995) 4 SCC 392; Zahira Habibul/ah H. Shaikh & Another D v. State of Gujarat & Others (2004) 4 SCC 158; Ranjit Singh v. Hon'ble the Chief Justice & Others ILR 1985 Delhi 388; Kai/ash Nath Agarwal & Another v. Emperor AIR (34) 1947 Allahabad 436; re M. R. Venkataraman AIR (37) 1950 Madras 441; re T. R. Ganeshan AIR (37) 1950 Madras 696; E Prasanta Kumar Mukerjee v. The State AIR (39) 1952 Calcutta 91 Narwarsingh & Another v. State AIR 1952 Madhya Bharat 193, cited. Per Dr. Mukundakam Sharma, J (Concurring) F

1.1. A bare reading of the provisions of s.9(6) of the Code of Criminal Procedure, 1973 explicitly indicates that the power conferred on the High Court is the power to determine the place or places where the Court of Session shall ordinarily hold its sittings. The second part which G immediately follows the first part opens with the word "but", thereby carving out an exception to the general rule that the venue of the Court of Session shall be the place notified by the High Court. However, being an exception, the Code specifically mandates in the second H 922 SUPREME COURT REPORTS [2010] 3 S.C.R. A part for observance of a special procedure contemplating compliance of the rule of audi alteram partem and also for obtaining the consent of the parties before the Court of Session may hold its sittings at a place other than the place or places notified by the High Court. [Para 14] [1007- B A-E] C

1.2. In the instant case, the essential conditions ingrained in the second part of s. 9(6), are not applicable inasmuch as the power to change the venue of the trial of cases pending against the appellant, was exercised by the High Court and not by the Court of Session. The power of the High Court uls 9(6) to notify a particular place or places where the Court of Session shall ordinarily hold its sitting is an administrative power unlike the power of the Court of Session under second part of D s.9(6) which is a purely judicial power in nature. Being so, the High Court was under no obligation to observe the rule of audi alteram partem. It has been the consistent view of this Court that an administrative order when passed by a competent authority may not necessarily be required to be issued only after due compliance with the principles of natural justice. [Para 15, 17, 21 and 25] [1008- 8-D; 1009-D-E; 1012-B-C; 1013-D-E] E Kehar Singh vs. State (Delhi Administration) 1988 (2) Suppl. SCR 24 =1988 SCC (3) 609; Union of India v. Col. F J.N. Sinha, (1970) 2 SCC 458; Haradhan Saha v. State of W.B. 1975 ( 1 ) SCR 778 = (1975) 3 SCC 198 ; Olga Tellis v. Bombay Municipal Corporation 1985 (2) Suppl. SCR 51 =(1985) 3 SCC 545; Carborundum Universal Ltd. v. Central Board of Direct Taxes, (1989) Supp. 2 SCC 462; and G Ajit Kumar Nag v. G. M. (PJ), Indian Oil Corp. Ltd. (2005) 7 sec 764, relied on.

1.3. The second part of s.9(6) of the CrPC expressly requires the Court· of Session to afford the prosecution and the accused an opportunity of hearing and to obtain their consent beforehand whereas there is no such H MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 923

stipulation under first part of s.9(6r. The omission of such A a requirement in case of the High Court pertaining to first part of sub-section (6) of s.9 is to be construed as a conscious decision on the part of the legislature for, it intended to exclude such a requirement when such power is to be exercised by the High Court. [Para 22] [1012-D- B F]

1.4. Even otherwise, it is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is the determinative factor of the C legislative intent. If the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statute. [Para 23] [1012-F-G] Ansal Properties & Industries Ltd. v. State of Haryana D 2009 (1) SCR 553 = (2009) 3 sec 553, relied on.

1.5. As regards the constitutional validity of s.9(6), significantly, no such plea was ever raised at any stage and even such ground was not raised in the memo of appeal. An important question of constitutional validity of E a provision in a Central Act cannot be permitted to be raised for the first time at the stage of final hearing. The Union of India is also not a party in the proceedings and in its absence no such issue could be allowed to be raised, argued and decided. [Para 26] [1013-F-G] F

2.1. Section 407 of the Code deals with the power of the High Court to "transfer" cases and appeals. The key word in this section is the word 'transfer', which essentially consists of two steps: (a) removing a case or G class of cases from the jurisdiction of the court where it/ they is/are pending trial, and (b) putting it/them under the jurisdiction of another court (whether of equal or superior jurisdiction) for adjudication. Thus, every transfer involves two different courts. [Para 16] [1008-G-H; 1009- H A] 924 SUPREME COURT REPORTS (2010] 3 S.C.R. A

2.2. By issuing ttie notification dated 20.5.2006, the High Court cannot be said to have transferred the cases pending against the appellant, for the said notification simply notified the premises of District Jail, Siwan, to be the place of sitting for holding the trial of cases pending B against the appellant. The notification did not, in any manner, affect or abridge the jurisdiction of the Court of Session, Siwan, to try those cases. Thus, there was a shift simpliciter in the venue of the trial, without there being anything more. In such circumstances,· the instant case c cannot be said to be a case of "transfer" to which the provisions of s. 407 are attracted. [Para 16) [1009-A-C)

3.1. Section 11 CrPC makes it explicitly clear that a Court of Judicial Magistrate could be established by th~j State Government after consultation with the High Court. D The State Government is vested with the power, after due consultation with the High Court, to create or to establish for any local area one or more courts of Judicial Magistrate First Class so as to try any particular case or class of cases. [Para 27) [1014-A-C] E F G

3.2. By issuing one of the two impugned notifications dated 7.6.2006 the State of Bihar, in exercise of its powers conferred u/s 11 of the CrPC and in consultation with the High Court, established a Court of Judicial Magistrate, First Class inside the District Jail, Siwan to hold its sitting for the trial of cases pending against the appellant in the Court of Judicial Magistrate, First Class. The impugned notification satisfies all the requirements and all the four corners as envisaged u/s 11 of the Code and, therefore, the said notification is legal and valid inasmuch as, the same was issued by the competent authority and also in full compliance with the requirements and the safeguards provided in the said provisions. [Para 43) [1020-G-H; · 1021-A-B] H

3.3. So far the other notification issued by the MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 925 Government of Bihar on 07 .06.2006 directing that the A Court of Additional District and Sessions Judge of Siwan Sessions Division would hold its sitting inside the District Jail, Siwan to try sessions cases pending against the appellant is concerned, it appears to be a surplusage, which was issued for making available the jail premises B - for the purpose of holding the Court of Session. The power u/s 9(6) is vested in the High Court and in exercise of the said power the High Court had issued a notification on 20.05.2006 which was also published in the official Gazette. Any further notification by the State c Government making the jail premises available for the said purposes cannot be said to be illegal and void. [Para 44) [1021-C-F]

3.4. There is thus no infirmity in establishing both the Special Courts i.e. the Court of Additional District and D Sessions Judge to try sessions cases and the Court of Judicial Magistrate, First Class to try the other cases, pending against the appellant, inside the premises of the District Jail, Siwan as the notification u/s 9(6) was issued in accordance with the provisions of law by the High E Court and subsequent notification was also issued by the State Government in consultation with the High Court. [Para 45) [1021-G-H; 1022-A-B]

4.1. The issue whether the notification dated F

20.5.2006 was published in the official Gazette or not or whether a copy thereof was supplied to the appellant or not, is a mixed question of law and fact and, therefore, the same should have been raised specifically in the writ petition and at least in the appeal petition. It also does not G appear from the material available on record that such an issue was ever raised by the appellant before the High Court. Therefore, the issue being raised for the first time at the time of hearing of the appeal before this Court cannot be permitted to be raised. [Para 32) [1015-B-D] H 926 SUPREME COURT REPORTS [2010] 3 S.C.R. A 8 C Shakti Tubes Ltd. v. State of Bihar, 2009 (10) SCR 739 = (2009) 7 sec 673, relied on

4.2. However, from the records, it is conclusively established that the High Court took all necessary steps to get the notification issued and published in the official gazette. If the Government Press took some time to get · the notification published in the official gazette, the High Court cannot be blamed for it nor could the notification be ~eclared to be void, particularly, when it was so published in the official gazette, as it is established from the records placed before the Court, although after some delay. [Para 42] [1020-B-D]

5.1. It cannot be said that reference of the provisions of s.14 (1) of the Bengal, Assam and Agra Civil Courts D Act, 1887 apart from referring to the provisions of s.9(6) CrPC in the notification dated 07.06.2006 issued by the State Government indicates non-application of mind by the competent authority and on that ground the notification was illegal and void. If the notification quotes E a wrong section and refers to a wrong provision, the · same cannot be held to be invalid if the validity of the same could be upheld on the basis of some other provision. In the instant case, for making available the jail premises to hold the Court of Session, provisions of F s.9(6) CrPC would be applicable. [Para 46,47 and 49] [1022-8-E; 1023-E] N. Mani v. Sangeetha Theatre,. (2004) 12 SCC 278, relied on. G H

5.2. It is a well-established law that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within ;ts power under any other provision or rule, and the validity of such impugned order must be judged on a consideration of its MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 927 substance and not its form. The principle is that the act A of a public servant must be ascribed to an actual existing authority under which it would have validity rather than to one under which it would be void. In such cases, this Court will always rely upon s.114 Ill. (e) of the Evidence Act, 1872 to draw a statutory presumption that the official B acts are regularly performed and if satisfied that the action in question is traceable to a statutory power, the courts will uphold such State action. [para 48) [1022-G- H; 1023-A-B] ,, P. Balakotaiah v. Union of India, 1958 SCR 1052 =AIR C