P L D 1972 Azad J & K 38 (PLP)

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 or building used by the Court." There is also no provision in the Civil Defence Rules for proceedings to be held in camera. It was urged in reply on behalf of the Government that if section 352, Cr. P. C. was not applicable, then there existed no provision for conducting the present proceedings in an open Court. While agreeing with the learned counsel for the petitioners that as section 352, Cr. P. C. clearly speaks of the trial of offences, the proviso should also be taken to refer only to the trial of offences and hence not applicable to the present case but all the same, as the Code is not exhaustive as also on the principle of analogy the same principle should govern cases which are in the nature of criminal proceedings such as those under section 491, Cr. P. C. The law on the subject in England may he usefully cited here as it appears in Halsbury's Laws of England, Vol. IX (1909) at page 362: "As a general rule all persons have a right to be present in Court, provided there is sufficient accommodation and there is no disturbance of the proceedings. It is usual, where cases involving indecent details are called on, to direct females and boys to leave the Court; but if an adult woman should insist on being present at the hearing of a case, there is probably no power to prevent her being present. It is expressly provided by statute that when a person who in the opinion of the Court is under sixteen is called as a witness in any proceedings in relation to an offence against or any conduct contrary to decency or morality, the Court may order the exclusion of all persons King members or officers of the Court or parties, their counsel or solicitors, and the bona fide representatives of a newspaper or news agency. No child (i.e., anyone under fourteen) other than an infant in arms may be present during the trial of any person charged with such an offence or during any preliminary proceedings relating to such offence, and, if he is present, he must be ordered to be removed, unless he is the person charged with the offence or his presence is required as a witness or otherwise for the purpose of justice, and then he can only remain so long as his presence is so required. Except in the cases above referred to, and in cases under the Incest Act, 1908, it does not appear that a Judge trying a criminal case has any power to exclude the public in general and to hear a case In camera." Some of the reasons why judicial proceedings should be held in open Court are contained in A I R 1936 P C 246 which was a divorce case. Their Lordships said:‑ "The actual presence of the public is never of course necessary. Where Courts are held in remote parts of the Province, as they frequently must be, there may be no members of the public available to attend. But even so the Court must he open to any who may present themselves for admission. The remoteness of the possibility of any public attendance must never by judicial action be reduced to the certainty that there will be none . . . . . Again publicity goes far to prevent the trial of these actions, where one is superficially so much like another, from becoming stereotyped and standardised so that the ability to dispose of them with a minimum expenditure of judicial time is even now apparently regarded in some quarters as the convincing test of judicial efficiency. Moreover the potential presence of the public almost necessarily invests the proceedings with some degree of formality. And formality is perhaps the only available substitute for the solemnity, by which, ideally at all events, such proceedings, especially where the welfare of children is involved, should be characterised. That potential presence is at least some guarantee that there shall be a certain decorum of procedure." There is nothing secret about Court proceedings which are essentially and basically public proceedings in the sense that it takes place, especially a criminal proceeding, not only for the dispensation of justice between the parties before at but also for the good of the community as a whole. The public is interested in the punishment of an offender so that they may not only live in peace but remain convinced of the capability of the state to bring to justice any offenders against their person property etc; similarly it is also vitally interested that an innocent person may not be punished and that every one has a fair trial. According to Rousseau one of the two primary considerations that led to Man's surrender of personal sovereignty in favour of the State so created, was to seek justice in a circle of superior force because while he could enforce his will on those weaker than himself, he was himself a victim of force, superior to his own. It is therefore in the paramount interests of the State itself that there should be no suspicion whatsoever, as to what happened inside the Court while a case was being heard because secrecy unduly and unfairly tends to compromise the impartiality and integrity of the presiding officer. It is also necessary to convince the public at large that justice was not only being done but had, in fact, been done in any particular case. It is not an uncommon experience that even the perpetrators of worst crimes do sometimes, evoke public sympathy. Should unfortunately an impression be created that the offender was not tried fairly and impartially, the criminal is likely to become a martyr‑‑a result that must be avoided. This is all the more true in the case of political workers as the petitioners who are not being presently tried but are detained under the preventive detention powers of the executive on the allegation of being enemies of the State‑‑‑an allegation denied by them and countered by alleging victimization to achieve the ends of power politics it is, therefore, all the more necessary that these proceeding should be held in public so that not only is the Government protected against any suspicions likely to result from a camera hearing but so that confidence in the even‑handedness of the Court is also maintained and strengthened. For the time‑being evidence has to be led by the petitioners and when the turn of the Government comes or at any other stage if some such evidence is offered the disclosure of which may, in the opinion of the Court, create any security complica tions or affect national security, the Government may move the Court for such evidence being taken in camera. For the reasons aforesaid, the application of the Government for holding the hearing in camera is rejected. Application rejected.