As desired by the Hon'ble High Court, New Delhi, vide order dated 24-7-1980 communicated by the District & Sessions Judge, Delhi, vide his end. No. F5(4)/Gaz/27061 dated 24-7-1980 Shri Dinesh Dayal, Metropolitan Magistrate, Delhi, is deputed for the extension of judicial remand of all the four accused persons arrested in connection with the murder of Baba Gurcharan Singh in case No. RC/2/80/CIU(A) CBI, New Delhi, at Central Jail, New Delhi, on 25-7-1980, and also on subsequent dates.
2. Admittedly in the present case the State Government has not exercised its power as envisaged under S. 268 of the Code empowering it to direct that the four accused shall not be removed from the Central Jail, Tihar. The learned counsel for the respondents, Shri D. C. Mathur, submits that the request made by the Delhi Administrative vide its letter of July 23, 1980 (Annexure 'A') and the administrative order passed by this Court resulting in deputing of the learned Metropolitan Magistrate holding his Court in Central Jail, Tihar are in accordance with the Rules & Orders of the Punjab High Court (as applicable in Delhi). In support of his contention he relies on Delhi Gazette Notification dated the 3rd September, 1975, whereby Para. 5 of Chap. 1-A, High Court Rules and Orders, Vol. III, was amended which, according to him, enables the High Court to direct a Magistrate to hold his Court in jail premises. The said Notification is reproduced as under :
'DELHI ADMINISTRATION, DELHI. DELHI HIGH COURT NOTIFICATION
Delhi, the 3rd September, 1975. No. 164/Rules, - In exercise of the powers conferred by S. 7 of the Delhi High Court Act, 1966 (Act No. 26 of 1966), and all other powers enabling in this behalf, the Delhi High Court hereby substitutes the following para. for the existing Para. 5 of Chap. I-A, High Court Rules and Orders, Volume III :-
'Section 327 of the Cr.P.C. lays down that the place where a criminal Court is held '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, but the discretion to exclude the public from the ordinary Court room rests with the presiding magistrate. When, however, the presiding magistrate, for any reason, excludes the public by holding his Court in a building such as jail, to which the public is not admitted, he should obtain the sanction of High Court thereto through the District and Sessions Judge.
By order of the Court :
M. L. Jain, Registrar.'
3. According to Mr. Mathur, the said administrative order dated July, 24, 1980, amounts to grant of a sanction as required in the said notification permitting the Magistrate to exclude the public by holding his Court in Central Jail, Tihar.
4. The argument runs thus : The order dated July 19, 1980, of the learned Chief Metropolitan Magistrate, Delhi, quoted above, must be construed to mean that he was, in fact, allowing the petition, directing, however, that for appropriate orders this Court be directly approached by the prosecution. The subsequent request made by the Delhi Administration to this Court and the administrative orders passed thereon amount to the grant of sanction as provided in the said notification.
5. In my view the submission is wholly misconceived. The prosecution in their application moved on July 19, 1980, before the learned Chief Metropolitan Magistrate while seeking that extension of judicial remand be held in Central Jail, Tihar, had submitted : 'If considered necessary, instruction of the Hon'ble High Court may be obtained well in advance in this behalf.' Presumably that submission had been made in accordance with the provision of unamended Para 5 of Chap. 1-A of Vol. III of the Rules and Orders of the Punjab High Court. Para. 5 of that Chapter with reference to S. 352 of the old Code (S. 327 of the new Code) made it mandatory for the presiding magistrate who had decided to hold his Court in a building other than his ordinary Court room and also to exclude the public there from, to obtain the sanction of the Government through the District Magistrate and inform the High Court that such a sanction has been accorded. By amendment of that paragraph vide the said notification, the Magistrate, when deciding to hold the Court in a building such as jail to which public is not admitted, is now obliged to obtain sanction of the High Court through the District & Sessions Judges. It appears that the learned Magistrate's observation that the High Court be directly approached was based on the assumption that the plea made in the application was correct. However, it is clear that the discretion which vests in the Magistrate to exclude the presence of the public from his Court is to be exercised judicially. It is for the Magistrate or the Presiding Judge concerned to exercise that power after recording his reasons. From the order dated July, 19, 1980, which Mr. Dinesh Mathur wants me to read as if the learned Magistrate had decided to hold his Court in Central Jail, Tihar, it is apparent that the learned Magistrate had not decided to do so. His observation that 'the prosecution/State may approach the Hon'ble High Court directly in this connection for appropriate orders' merely repeats the plea of the prosecution contained in the said application on this observation it cannot be urged that the learned Magistrate was seeking sanction of the High Court to hold his Court in jail.
6. Before approaching the learned Magistrate, it was open to the State to pass an order under S. 268 of the Code prohibiting the removal of petitioner from the said jail subject to the condition laid down in sub-section (2) of that Section which reads as follows :
'268(1) X X X X X X
(2) Before making an order under sub-section (1), the State Government shall have regard to the following matters, namely :-
(a) the nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison;
(b) the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison;
(c) the public interest, generally.'
No such order has been passed by the State. In their affidavit in opposition it is averred by the respondents that in view of the learned Magistrate's order, this Court was moved in the matter. In the facts of this case the question which arises for consideration is whether in the absence of an order as contemplated in S. 268 of the Code, can the High Court on the authority of the above-quoted notification by an administrative order direct a Magistrate or a Presiding Judge to hold his Court in Central Jail, Tihar, so as to exclude the public from attending his Court.
7. It is well-settled that an inquiry or a trial under the Code must be held in an open Court. While enunciating this universally accepted proposition, the Supreme Court in case Naresh Shridhar Mirajkar v. State of Maharashtra, reported in 0044/1966 : 3SCR744 has held :
'Public trial in open Court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad proposition that in discharging their functions as judicial Tribunals, Courts must generally hear causes in open and must permit the public admission to the Court-room.'
One of the exceptions to this rule re-organized by their Lordships in the above case was contained in S. 352 of the old Code (S. 327 of the new Code). It is abundantly clear that this exception comes into play only when the Presiding Judge or the Magistrate decides for him-self to exclude the public from his Court. When he decide to hold his Court in a place other than his ordinary Court-room so as to exclude the public, he has to obtain prior sanction of this Court. The administrative order directing the Magistrate to hold his Court in Central Jail, Tihar, on July, 25, 1980, or on subsequent dates for extension of remand cannot be held to be covered by the provisions of Para. 5 of Chap. 1-A of the High Court Rules and Orders as amended by the above-quoted notification. The order has no statutory force. It does not, however, necessarily follow that the proceedings held in Central Jail, Tihar, for extension of remand on administrative directions of this Court, are illegal. The proceedings were held by a Court of competent jurisdiction in a place other than the ordinary Court-room. Mr. Dinesh Dayal, Metropolitan Magistrate, in view of the administrative directions of this Court, had no option but to hold his Court in Jail premises on July, 25, 1980. In my view, it cannot be said that the proceedings have occasioned a failure of justice. The grievance of Mr. Bawa is that because of this act the counsel for the petitioners did not attend the said proceedings. On this aspect the avernment in Para. 4 of the petition is that : '........... The lawyers would not come and refused to come for any proceedings being taken in jail with the result that they were deprived of the legal assistance by the advocates of their choice which is granted to them under the Constitution of India.' It is not the case of Mr. Bawa that the counsel were prevented from attending the remand hearing. The said proceedings are thus not liable to be set aside. But the irregularity, although curable, having been brought to the notice of this Court cannot be allowed to persist. I, accordingly, direct that the petitioners, if still in custody, henceforth be produced in accordance with law in the ordinary Court-room of the Magistrate for extension of judicial remand.
8. The petition, so far as it seeks the above direction, is allowed.
9. Petition allowed.