1. In this application Thakur Narwarsingh who along with some other persons is being tried by Mr. H.B. Agarwal Special Magistrate, for offences under Sections 395, 397, 308, 120B, 460, 332, 149 and 458, I.P.C. The applicant complains that the Ruler of Zabua, under whose instigation cases relating to the above offences have been instituted against him, resides in Indore and is influencing the prosecution witnesses against him and that the witnesses which he himself wishes to produce in defence are residents of Zabua and Zaknawada which places are at a considerable distance from Indore, and further says that his trial in the Indore Central Jail premises is likely to prejudice him. On these grounds the applicant prays that his trial should be held either at Dhar at Ujjain and that in no case should it be held in the Jail premises.
2. I have heard the petitioner who was present in person, and the learned Government Advocate. In my opinion the application must be refused. It is not the allegation of the applicant that Mr. Agarwal the Special Magistrate, is prejudiced against him and the applicant does not ask for a transfer of the cases pending against him from Mr. Agarwal's court to any other court. The applicant no doubt stated before me that during the course of examination of certain witnesses the Special Magistrate suggested questions to the Public Prosecutor and he also suggested answers to the witnesses. A similar allegation has also been made by the other accused persons, who are being tried along with the applicant, in a separate application which is not supported by any affidavit. This allegation appears to me so indefinite and general in character that I am not persuaded even to ask the Magistrate to send to this Court his observations with regard to this allegation. There is therefore, no question of the transfer of the cases pending against the applicant from the Court of Mr. Agarwal to any other court.
3. As to the objection about holding of the trial in Jail premises, I think there is no force m it. The Government has appointed Mr. Agarwal, as a Special Magistrate under Section 14 of the Code of Criminal Procedure to try the cases against the applicant and has defined the area of his jurisdiction as comprising the entire Madhya Bharat. In holding me trial in the Central Jail premises, Indore, the Magistrate is therefore, holding the trial within the limits of his jurisdiction. There is nothing in the Criminal Procedure Code to compel a Magistrate to hold his Court in. the usual Court premises. Section 352 of the Code gives a wide discretion to the Magistrate as regards the place where a trial or inquiry is to be held. The ordinary rule is no doubt that the trial or inquiry should be held in the usual court-room. But there may be circumstances under which the Magistrate may think it expedient for reasons of security for the accused or for the witnesses or for any other valid ground to hold the trial in Jail premises. In - Kailashnath v. Emperor AIR 1947 All. 436, Malik J. (as he then was) observed that there is no provision in the Criminal Procedure Code which compels a Magistrate to hold his Court in the usual court-room. Section 352 probably contemplates that a Magistrate can hold his Court anywhere he likes. But the Magistrate wherever he may be compelled to sit by executive orders, is bound by the provisions of Section 352, and he must realise that the place where the trial is held must be something like an open court to which the public generally may have access so far as the same can conveniently contain them. Malik J. also stated that it was the duty of the Magistrate to see that proper facilities are given to the members of the Bar and the members of the public and that they are not restricted by the Jail rules or by the officers-in-charge of the Jail in attending the trial or inquiry.
To the same effect are the decisions of the Madras and Calcutta High Courts reported in - In re Ganesan : AIR1950Mad696 and - Prasanta Kumar v. State : AIR1952Cal91 . I am in respectful agreement with these decisions and I do not think that it can be held that the trial of the applicant would be invalid or would be prejudicial to him merely because it is being held in Jail premises. In the present case, the Special Magistrate is holding the trial in Jail not because there is a direction in the order of the Government appointing him as Special Magistrate that he should hold the trial in the Central Jail, at Indore, but because, the Magistrate has in his discretion decided to hold the same in the Jail premises. On the 15th of December 1951, the Magistrate passed an order stating that for reasons of security it was desirable that the trial should be held in the Central Jail premises. In this order, the Magistrate has also emphasised the fact that his court will be an open court and that all facilities will be given to the pleaders and members of the public for attending the proceedings in his Court and that they shall have free access to the Jail premises. This order was passed by the Special Magistrate in the presence of the applicant and the other accused persons and they were also informed of the facilities which the Magistrate proposed to give to the pleaders and the public. In these circumstances I do not think that the applicant can have any reason to complain that the trial in the Tail premises is prejudicial to him, I am confident that if later on the Magistrate finds or if it comes to his notice that the access of the public or the members of the Bar is restricted in any way, he will no doubt reconsider the matter and pass Appropriate orders about the continuance or otherwise of the trial in the Jail premises, after giving full reasons for his decision. I fail to see how on the ground that the Raja of Zabua Is influencing the witnesses or that the applicants' witnesses live in Zabua or Zaknawada, this Court can direct the Magistrate to sit at Char or Ujjain.
4. For the above reasons the petition is reflected.