Paragraph numbers below are the court’s original numbering, recovered from the source text.
14. A bare reading of the aforesaid provisions of Section 9(6) 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 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. That the power of the Court of Session to fix the venue is an exception to the aforesaid general rule is also indicated by the use of the word "ordinarily" in the first part of Section 9(6) of CrPC. Thus, by vfrtue of the provision contained in the second part of Section 9(6), the Court of Session is endowed with the power to hold its sittings at any place in the sessions division other than that notified by the High Court. However, being an exception, the CrPC specifically mandates in the second 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. Being an exception to the general rule, the power of the Court of Session to change the venue of a trial is circumscribed and could be ex~rcfsed by the Court of Session only on the fulfillment of the aforesaid condition and only on the ground that such change in the venue of trial will tend to the general convenience of the parties and witnesses. and cannot be exercised for any other purpose or on any other ground. Moreover, the said power can be exercised only with reference to a particular case. The expression "particular case" as used in the second part of Section 9(6) connotes a single or specific case as opposed to a bunch or class of cases. Being an exception to the general rule, the conditions, subject to the fulfilment of which the power to shift the venue of the trial may be exercised by the Court of Session, have to be strictly construed. Thus, where the conditions specified under the second part of Section 9(6) of the Code are not complied with, the Court of Session has no B power to shift the venue. In such a case, the power of shifting the venue continues to lie with the High Court.
15. In the present case, the essential conditions ingrained in the second part of Section 9(6), as set out above, are not C applicable inasmuch as neither inconvenience to the parties or witnesses was ever perceived or record~d by the Court of Additional Sessions Judge nor was the venue of trial shifted for a particular case. On the contrary, it was shifted for the entire class of cases that were pending against the appellant. In light of the aforesaid, it may be said that the power to change the D venue of the trial of cases pending against the appellant, was exercisable by the High Court and not by the Court of Session. -Furthermore, a careful reading of Section 9(6) reveals that the second part expressly requires the Court of Session to afford the prosecution and the accused an opportunity of hearing and E to obtain their consent beforehand. It is, therefore, not a case falling under second part of Section 9(6) but is a case falling under first part of Section 9(6) of CrPC.
16. Learned Senior Counsel appearing for the appellant also contended that there was a "transfer" of cases pending against the appellant from the Sessions Court, Siwan to Jail Sessions Court, Siwan and as such there was a case of exercise of power under Section 407 of CrPG by the High Court which is a judicial power and thus compliance with the rule of G audi alteram partem was necessary. In my considered view, the argument is entirely misplaced as 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 class of cases from the jurisdiction of the cburt where it/they MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1009 [DR. MUKUNDAKAM SHARMA, J.] 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. By issuing the said notification, 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 against the appellant. The notifications 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 c more. In such circumstances, the present case cannot be said to be a case of "transfer'' to which the provisions of Section 407 are attracted.
17. Now what remains to be examined is whether the rule of audi alteram partem should have been complied with when the High Court notified a shift in the venue of the trial. The power of the High Court under section 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 section 9(6) which is judicial in nature. Being so, the High Court was under no obligation to observe the rule of audi alteram partem. The said power undoubtedly is an administrative power exercisable by the High Court. This position was also made clear by the decision of this Court in Kehar Singh (supra) wherein it was observed as follows: "171. The argument that the first part of Section 9(6) should be read along with the second part thereof has, in the context, no place. The first part provides power to the High Court. It is an administrative power, intended to further the administration of justice. The second part deals with the power of the Court of Session. It is a judicial power of the court intended to avoid hardship to the parties and witnesses in a particular case. One is independent of and (2010] 3 S.C.R. unconnected with the other. So, one should not be confused with the other. The judicial power of the Court of Session is of limited operation, the exercise of which is conditioned by mutual consent of the parties in the first place. Secondly, the exercise of that power has to be narrowly tailored to the convenience of all concerned. It cannot be made use of for any other purpose. This limited judicial power of the 'Court of Session should not be put across to curtail the vast administrative power of the High Court." c
18. The intention qf the legislature for. providing an opportunity of hearing in the matters of transfer of criminal cases could be gathered from the language used in the provision wherein the legislature desired that there should be an opportunity of hearing that is so specifically stated in the D language itself and where the legislature desired that there should be a power of the High Court to fix the place or places of sittings of a Sessions Court for holding its trial, it has so men!ioned explicitly by excluding the rules of natural justice from its ambit thereby excluding the principles of audi alteram E partem.
19. In ,Union of India v. Col. J.N. Sinha, (1970) 2 SCC 458, at page 460, this Court observed as follows: "8. Fundamental Rule 56(i) in terms does not require that any opportunity should be given to the concerned government servant to show cause against his compulsory retirement. A government servant serving;.1,1nder the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Constitution. But this "pleasure" doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Article 311. Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this_Court in A.K. Kraipak v. Union of India "the aim of rules of natural justice MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1011 [DR. MUKUNDAKAM SHARMA, J.] is to secure justice or to put it negatively to prevent A miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it". It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so B because it must be presumed that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the c principles of natural justice then the court cannot ignore the mandate of the Legislature or the statutory authority and read into. the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power." (emphasis supplied)
20. In Haradhan Saha v. State of WB. (1975) 3 SCC 198, at page 208, a five judge Bench of this Court reiterated the · ·– aforesaid view as follows: "30. Elaborate rules of natural justice are excluded either expressly or by necessary implication where procedural provisions are made in the statute or where disclosure of relevant information to an interested party would be contrary to the public interest. If a statutory provision excludes the application of any or all the principles of G natural justice then the court does not completely ignore the mandate of the legislature. The court notices the distinction between the duty to act fairly and a duty to act judicially in accordance with natural justice. The detaining authority is under a duty to give fair consideration to the representation made by the detenu but it is not under a duty to disclose to the detenu any evidence or information. The duty to act fairly is discharged even if there is not an oral hearing. Fairness denotes abstention from abuse of discretion." (emphasis supplied)
21. 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. Reference in this regard may be made to the decisions of this Court in Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545; Carborundum Universal Ltd. v. Central Board of Direct Taxes, (1989) Supp. 2 SCC 462; and Ajit Kumar Nag v. G. M. (PJ), Indian Oil Corp. Ltd., (2005) 7 SCC 764.
22. The second part of Section 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 stipulation under first part of Section 9(6). The omission of such a requirement in case of the High Court pertaining to first part of sub-section (6) of Section 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.
23. 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 a determinative factor of the 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. Reference in· this regard may be made to a recent decision of this Court in Ansal H_ MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1013 [DR. MUKUNDAKAM SHARMA, J.] Properlies & Industries Ltd. v. State of Haryana (2009) 3 SCC 553.
24. Further, it is a well established principle of statutory interpretation that the legislature is specially precise and careful in its choice of language. Thus, if a statutory provision is enacted by the legislature, which prescribes a condition at one place but not at some other place in the same provision, the only reasonable interpretation which can be resorted to by the courts is that such was the intention of the legislature and that the provision was consciously enacted in that manner. In such cases, it will .be wrong to presume that such omission was inadvertent or that by incorporating the condition at one place in the provision the legislature also intended the condition to be applied at some other place in that provision.
25. On a detailed and proper interpretation of Section 9(6) of CrPC there can be only one opinion that it was not necessary for the High Court to observe or comply with the rule of audi alteram partem before notifying a shift in the venue of the trial, for such power of the High Court under Section 9(6) of the CrPC 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 Section 9(6) which is a purely a judicial power in nature. Consequently, the High Court was under no requirement to follow and to comply with the rule of audi alteram partem before issuing the notification dated 20.05.2006.
26. As stated hereinbefore, a feeble attempt was made to argue the constitutional validity of Section 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 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 present proceeding and in its absence no such issue could be allowed to be raised, argued and decided.
27. Now, I come to Section 11 of the CrPC which makes it explicitly clear that a Court of Judicial Magistrate could be established by the State Government after consultation with the High Court. The State Government is vested with the power, after due consultation with the High Gourt, to create or to B establish for any local area one or more Judicial Magistrate Court of the First Class so as to try any particular case or particular class of cases and that where such special court is established, no other court be created or established for such a case or any class of cases for the trial of which such a Court c of Judicial Magistrate has been established.
28. In terms of Section 9(6) and Section 11 of the CrPC, the venue of Court of Session for holding of trial of the cases pending against the appellant was shifted to, and Court of Judicial Magistrate First Class was established in, the District D Jail, Siwan.
29. It is the case of the appellant that while jssuing the notification dated 20.05.2006, the High Court had no intention of creating a jail Sessions Court in exercise of its administrative E power because it left the same to be done by the State Government and further that the notification dated 07.06.2006 was void as the Governor of Bihar could not have exercised power under Section 9(6) of the CrPC. He further submitted that the notification dated 20.05.2006 was not supplied to the F appellant and the same was not published in the Gazette and, therefore, the said notification was invalid.
30. The aforesaid submission of the learned senior counsel appearing for the appellant was strongly refuted by Mr. Ranjit Kumar, learned senior counsel appearing for the State G of Bihar and also by Mr. P.H. Parekh, learned senior counsel appearing for the High Court of Patna.
31. Mr. Ranjit Kumar specifically submitted that neither such plea was raised in the writ petition nor argued before the High H Court nor any such issue was raised before this Court and, MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1015 [DR. MUKUNDAKAM SHARMA, J.] therefore, such an issue cannot be raised for the first time at the time of hearing of the present appeal. Mr. Jethmalani, however, tried to repel the aforesaid objection taken by Mr. Ranjit Kumar contending, inter alia, that the aforesaid issue being a legal one, the same could be amended and could be raised by him at any point of time.
32. I find force in the submissions of Mr. Ranjit Kumar, the learned senior counsel appearing for the State of Bihar that the issue which was sought to be raised about the non-publication of the notification in the official Gazette is a mixed question of C law and fact and, therefore, the same should have been raised specifically in the writ petition and at least in this appeal petition. It also does not appear to us 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 case before us which, according to us, cannot be permitted to be raised for the first time for the simple reason that the issue being whether the notification dated 20.05.2006 was supplied to the appellant and the same was published in the Gazette or not, is not a pure question of law but a mixed question of law and fact. The said facts were required to be urged evidentially before the courts below. Unless such a factual foundation is available it is not possible to decide such a mixed question of law and fact. Therefore, such a mixed question of law and fact should not be allowed to be raised at the time of final hearing of appeal before this Court. [Reference in this regard may be made to a recent decision of this Court in Shakti Tubes Ltd. v .. State of Bihar, (2009) 7 SCC 673]. However, in order to do complete justice to the parties the parties were called upon to place their additional documents, relevant to the issues involved, if any, which were accepted during the course of arguments.
33. On going through the records, it is clear that before issuance of the notification dated 20.05.2006, a bunch of correspondences had taken place among the different H (2010] 3 S.C.R. A authorities. The Superintendent of Police, Siwan under his letter No. 1493 dated 08.05.2006 wrote to the District Magistrate, Siwan that more than 40 cases were pending against the appellant. In the said letter, it was also indicated that there were directions issued by the Patna High Court to dispose of the B cases expeditiously. It was further indicated that there was a serious danger to public peace during the presence of the appellant in the court premises due to the fact that his supporters and other co-criminals could attack the witnesses and that even the possibility of threat and attack on the Public c Prosecutor and the District Prosecuting Officer could not be ruled out. It was mentioned in the letter that besides that, since the appellant was wanted in many criminal cases, other criminal groups could attack him. It was also mentioned in the letter that since the appellant was a sitting MP and had a large number D of supporters, there was every possibility of the working of the other courts in District Court, Siwan being impaired for, his supporters could create disturbance during hearing and that there could be murder and other serious law and order problems during the hearing of the cases of the appellant.
34. The District Magistrate after receipt of the aforesaid communication concurred with the report of the Superintendent of Police, Siwan and wrote to the Home Secretary, Bihar requesting for necessary action for construction of court rooms in District Jail for trial of cases relating to the appellant. The F Law Secretary, Government of Bihar thereafter by his letter No. 361/C/2006 dated 09.05.2006 wrote to the Registrar General of the Patna High Court by enclosing a photocopy of the letters of the Superintendent of Police, Siwan and the District Magistrate, Siwan. He alleged that Md. Shahabuddin, the G appellant was a high profile MP of Siwan having criminal al'.tecedents, reportedly facing prosecution in more than 40 cases. He also mentioned in his report that his physical production in the court during the trial may be a source of menace to the public peace and tranquility, besides posing a H great threat to the internal security extending to other MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1017 [DR. MUKUNDAKAM SHARMA. J.] prosecution witnesses and other prosecutors. It was also indicated in the report that it may also have adverse impact on inside court working condition making the situation surcharged during the trial. He suggested that to promote efficient conducting of trial as also to strengthen its efficacy, the trial of the appellant be conducted by constituting a special court inside the District Jail, Siwan which, according to him, was an imperative need of the time. He therefore, suggested that the Patna High Court may be requested to constitute special courts for the trial of the appellant inside the District Jail, Siwan.
35. The aforesaid records were placed before the Registrar General of the Patna High Court who put up a note upon which the Chief Justice of the Patna High Court directed the matter to be put up before the Standing Committee. A list of Additional Sessions Judges for the trial of sessions cases and a list of Special Magistrates were also placed for consideration before the Standing Committee. Consequently, the matter was placed before the Standing Committee in its meeting held on 11.05.2006. The Agenda for the said meeting is reproduced hereunder: "Letters received from the Law Secretary, Government of Bihar regarding designation of Special Court of Session and Court of Judicial Magistrate First Class for expeditious trial of the cases pending against Md. Shahbuddin and for notifying Siwan Jail a place for shifting of Sessions Court and Magisterial Court inside the jail for trial of such cases."
36. In.the aforesaid meeting of the Standing Committee, a decision was taken to the following effect: "Upon due deliberation and consideration of the letters received from the Law Secretary, regarding designation of Special Court of Session and Court of Judicial Magistrate, 1st Class for expeditious trial of cases pending against Md. Shahbuddin and for notifying the Siwan Jail for sitting of Sessions and Magisterial Courts inside the Siwan Jail for trial of such cases. It is resolved to designate one Court of Additional District and Sessions Judge as Special Court for trying the cases triable by the Court of Session and one Court of Judicial Magistrate for trying the cases triable by the Court of Magistrate, First Class. The matter of posting of the Officers i.e. ADJ and Judicial Magistrate, First Class, the matter is placed before the Sub Committee which has been entrusted the transfer and posting under the Annual General Transfer. It is also resolved that the Siwan Jail premises be notified as a c place of sitting of Sessions Court and Magisterial Court under provisions of Section 9(6) of Criminal Procedure Code".
37. Subsequent thereto, another note was prepared by the Joint Registrar (Establishment) on 17 .05.2006 which was D placed before the Registrar General in which it was pointed out that Section 9(6) of the CrPC related only to the Court of Session and not to the Judicial Magistrate and, therefore, a request was made to place the matter before the court for necessary orders. After obtaining the order of the Registrar E General and the Chief Justice of the Patna High Court to the aforesaid extent the matter was placed before the Standing Committee which in its meeting dated 18.05.2006 decided as under: "It is resolved that the minutes of the proceeding of the last meeting of the Standing Committee held on 11th May, 2006, be approved, with the only modification that in the last line of agenda item No. (4) after section 9 sub-section (6) "and Section 11 sub-section (1) of the Code of Criminal Procedure, 1973, respectively" be added".
38. Pursuant to the aforesaid decision of the Standing Committee of the Patna High Court, the notification dated 20.05.2006 was issued by the Patna High Court which reads as follows : MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1019 [DR. MUKUNDAKAty1 SHARMA, J.] "In exercise of powers conferred under Sub section (6) of Section 9 of the Criminal Procedure Code, 1973, the High Court have been pleased to decide that the premises of the District Jail, Siwan will be the place of sitting the Court of Session for the Sessions Divisions of Siwan for the expeditious trial of Sessions cases pending against Md. Shahabuddin."
39. By letter No. 5137/Admn. (Appointment) dated 20.05.2006, Mr. Gyaneshwar Shrivastav, Additional District and Sessions Judge was designated as the Presiding Officer (Special Judge) constituted inside the District Jail, Siwan for the expeditious trial of sessions cases pending against the appellant. Similarly, by letter No. 5139, the Registrar General informed the Law Secretary that Patna High Court had been pleased to accept the proposal of the State Government for the establishment of a Special Court of Judicial Magistrate First Class inside the District Jail, Siwan for the expeditious trial of cases pending against the appellant.
40. The Registrar General under letter No. 5141 dated 20.05.2006 informed the Secretary, Department (Personnel) that the Patna High Court has been pleased to recommend the. name of Sri Vishwa Vibhuti Gupta, Judicial Magistrate, First Class, Siwan, for his designation as Presiding Officer (Special Magistrate) of the Special Court of Judicial Magistrate, First Class being constituted to function inside the District Jail, Siwan for expeditious trial of cases pending against the appellant.
41. The Registrar General under his letter No. 5145 dated 20.05.2006 wrote to the Superintendent, Secretariat Press, Bihar, Gulzarbagh, Patna with a request to publish the notification issued under Section 9(6) of the CrPC in the next issue of the Bihar Gazette. The issuing section was instructed to issue the same at once on the very same day under a · sealed cover as per the direction of the Registrar General. However, the said notification which was directed to be published in the next issue of the Bihar Gazette came to be A published in Part – I of the Bihar Gazette dated 16.08.2006 along with other notifications of various dates. Thereafter, the Law (Judicial) Department, Government of Bihar, Patna published the two Notifications bearing No. 1452 dated 07.06.2006 with S.O. 80 and 82 in the Bihar Gazette (Extra 8 Ordinary Edition) which were assailed by the appellant. The Personnel Department also issued the Notification Nos. 5556 and 5557 dated 12.06.2006 regarding appointment of Presiding Officer for the said two Special Courts.
42. It is therefore conclusively established that the High C Court took all necessary steps to get the notification issued and published in the official gazette. If however 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 declared to be void particularly when it was D so published in the official gazette, as it is established from the records placed before us, although after some delay. The appellant also failed to prove before us and had also failed to plead before the writ Court that the said notification issued by the High Court is void on the ground of non-publication of the E same in the official gazette. The appellant has not even pleaded such ground in the writ petition or in the Memorandum of Appeal nor placed any evidence before us to show-tflcit-any-effective order which was prejudicial to him was passed in any_of the criminal cases during the aforesaid period. Instead, he took part . F in all the proceedings without any protest and now at the time of argument is making an effort to take up such issues, which again involve questions of fact, and therefore, cannot be allowed to be raised only at this stage.
43. By issuing one of the aforesaid two impugned G notifications the State of Bihar, in exercise of its powers conferred under Section 11 of the CrPC and in consultation with the Patna High Court, was pleased to establish a Court of Judicial Magistrate, First Class inside the District Jail, Siwan to hold its sitting inside the jail premises for the trial of cases MD. SHAHABUDDIN v. SIATE OF BIHAR & ORS. 1021 [DR. MUKUNDAKAM SHARMA, J.] pending against the appellant in the Court of Judicial · Magistrate, First Class. The said notification was challenged by the appellant on various grounds. But on consideration of the records of the case, I am satisfied that the impugned notification satisfies all the requirements and all the four corners as envisaged under Section 11 of the CrPC and, therefore, the said notification appears to us to be legal and valid inasmuch as, according to us, the same was issued by the competent authority and also in full compliance with the requirements and the safeguards provided in the said provisions.
44. So far the other notifications which were issued by the Government of Bihar are concerned, the same were issued on 07.06.2006 directing that the Court of Additional District and Sessions Judge of Siwan Sessions Division would now hold its sitting inside the District Jail, Siwan to try sessions cases pending against the appellant. The legality and validity of the same was challenged on the ground that the State Government has no power to issue such a direction under Section 9(6) and Section 11 of the CrPC. As already discussed hereinbefore that the power under Section 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. The subsequent notification issued by the State of Bihar appears to be a surplusage, which was issued for making available the jail premises for the purpose of holding the Sessions Court. The competent authority as envisaged under law having issued a notification for constituting and establishing a Sessions Court within the District Jail, Siwan, any further notification by the State Government making the jail premises available for the said purposes cannot be said to be illegal and void.
45. I am, therefore, of the considered view that there is no infirniity in establishing both the Special Courts i.e. the Court of Additional District and Sessions Judge to try sessions cases pending against the appellant and the Court of Judicial c Magistrate, First Class to try the cases pending against the appellant in the Court of Judicial Magistrate, First Class, inside the premises of the District Jail, Siwan as the notification under Section 9(6) was issued in accordance with the provisions of law by the High Court of Patna and subsequent notification was B also issued by the Government of Bihar in consultation with the Patna High Court.
46. Another issue which was raised by the learned senior ·- counsel appearing for the appellant was that the notification dated 07.06.2006 issued by the State Government apart from C referring to the provisions of Section 9 of the CrPC also refers and relies upon the provisions of Section 14 (1) of the Bengal, Assam and Agra Civil Courts Act, 1887. It was submitted that since the aforesaid reference was made in the notification, the same pinpoints to the fact of non-application of mind by the D competent authority and on that ground the notification was illegal and void.
47. I am unable to accept the aforesaid submission for the simple reason that if the notification quotes a wrong section and E 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 N. Mani v. Sangeetha Theatre, (2004) 12 SCC 278, at page 279, a three judge Bench of this Court. succinctly observed as follows: "9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law."
48. 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 H if it can be shown to be within its power under any other MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. [DR. MUKUNDAKAM SHARMA, J.] provision or rule, and the validity of such impugned order must be judged on a consideration of its substance and not its form. The' principle is that we must ascribe the act of a public servant 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 Section 114 Ill. (e) of the Evidence Act to draw a statutory presumption that the official 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. [Reference in this reg~rd may be made to the decisions of this Court in P. Balakotaiah v. Union of India, AIR 1958 SC 232; Lekhraj Sathramdas Lalvani v. N.M. Shah, Deputy Custodian-cum-Managing Officer, (1966) 1 SCR 120; Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343; B.S.E. Brokers' Forum, Bombay v. Securities And Exchange Board of India, (2001) 3 sec 4821
49. Although the State Government could not have exercised powers under the provisions of Sections 13 and 14 (1) of the Bengal, Assam and Agra Civil Courts Act, 1887 for making available the jail premises for the purpose of holding the Sessions Court, the provisions of the CrPC would be applicable under sub-section (6) of Section 9 of the CrPC. The aforesaid contention, therefore, is also without merit and is rejected.
50. The next contention which was raised by the learned senior counsel appearing for the appellant was that the aforesaid power and jurisdiction could not be exercised by the High Court in respect of the trials relating to one particular individual pending in one Sessions Division. It was further contended that if at all such power was exercisable, it could be exercised only with regard to new cases. If the power could be exercised by the High Court for establishing a new court, the same could be created for a group of cases or a class of cases. There were about 40 cases pending against the A appellant and they were being tried in different courts creating difficulties for conducting the cases at various courts both for the prosecution as also to the appellant. That also created a number of problems as mentioned in the letter dated 08.05.2006 of the Superintendent of Police, Siwan which was B affirmed by the District Magistrate. The Law Secretary, Government of Bihar had also affirmed the said reasons. Therefore, in order to dispose of all the cases pending against the appellant most expeditiously at one place without being in any manner disturbed by the factors mentioned in the letter of C the Superintendent of Police could be said to be a reasonable ground.
51. Expeditious disposal of cases is also a factor and a necessary concomitant to administration of justice and the hallmark of fair administration of justice. Since the venue of the D trial of a group or a class of cases was shifted by establishing and constituting a Court within the District Jail, Siwan, the same cannot be said to be void or invalid in any manner. The aforesaid issue, therefore, stands answered accordingly along with the issue which was argued by the learned senior counsel E appearing for the appellant that reason for issuance of notification being only the expeditious disposal of the cases pending against the appellant which is even otherwise a necessary concomitant of the administration of justice, the notification was void as no special reason to exercise such F power under Section 9(6) of the' CrPC is spelt out and also particularly when the said power is exercised in the cases of only one indiv.idual. I have dealt with the aforesaid issue as well and have given my reasons for rejecting the aforesaid submission for, according to me, the said submission is devoid G of any merit.
52. The correspondences spell out as to why the trial of all the cases of the appellant should be held at one place. The reasons given in the aforesaid communications were sufficient to arrive at a conclusion which was rightly done by the High MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1025 [DR. MUKUNDAKAM SHARMA, J.] Court to have the trial of all the cases of the appellant pending against him. So far the contention as to whether or not such power as envisaged under Section 9(6) of the CrPC could be exercised in a pending case, there is no reason as to why the said power should not be applicable even to pending cases and, therefore, the said contention is also without any valid substance.
53. The next issue which arises for consideration is based on the submissions of the learned senior counsel appearing for the appellant is that a trial must be conducted in an open court and the constitution of a special Sessions Court in the jail premises of District Jail, Siwan amounts to violation of Articles 14 and 21 of the Constitution of India as also of the provision contained in Section 327 of CrPC. This issue was e,><tensively argued by the learned senior counsel appearing for the appellant. However, learned senior counsel appearing for the respondent vehemently repelled the aforesaid submission and submitted that the grievance of the appellant with regard to a fair trial not being meted out to him in the jail is unfounded. It was further submitted that only because the trial is being conducted against the appellant in the jail premises, it cannot be said that the same was not open and public.
54. According to Black's Law Dictionary (6th Edition, 1990, p. 1091), an "open court" means a court to which the public have a right to be admitted. This term may mean either a court which has been formally convened and declared open for the transaction of its proper judicial business, or a court which is freely open to spectators. In R. v. Denbigh Justices, (1974) 2 All ER 1052, 1056 (QBD), it was held that the presence or absence of the press is a vital factor in deciding whether a particular hearing was or was not in the open Courts. It was further held that if the press has been actively excluded, the hearing is not in the open Courts. On the other hand, even if the press is present, if individual members of the .public are refused admission, the proceedings cannot be considered to go on in open Courts. In my considered view an 'open court' is A a court to which general public has a right to be admitted and access to the court is granted to all the persons desirous of entering the court to observe the conduct of the judicial proceedings. Although the general rule still remains that a trial must be conducted in an open court, it may sometimes become B necessary or rather indispensable to hold a trial inside a jail. Considerations of public peace and tranquility, maintenance of law and order situation, safety and security of the accused and the witnesses may make the holding of a trial inside the jail premises imperative as is the situation in the present case. The c legal position as regards the validity of a trial inside the jail premises is well settled. In Kehar Singh case (supra) Shetty J. in his concurring judgment, after going through a number of authorities, on this issue observed thus: "45. It may now be stated without contradiction that jail is not a prohibited place for trial of criminal cases. Nor the jail trial can be regarded as an illegitimate trial. There can be trial in jail premises for reasons of security to the parties, witnesses and for other valid reasons. The enquiry or trial, however, must be conducted in open Court. There should not be any veil of secrecy in the proceedings. There should not even be an impression that it is a secret trial. The dynamics of judicial process should be thrown open to the public at every stage. The public must have reasonable access to the place of trial. The Presiding Judge must have full control of the Courthouse. The accused must have all facilities to have a fair trial and all safeguards to avoid prejudice."
55. It is evidently clear from the aforesaid decision that a G trial inside a jail does not stand. vitiated solely because it is conducted inside the jail premises. However, at the same time, there must b~ compliance of the provisions contained in Section 327 of .the CrPC which guarantees certain safeguards to ensure that ~ trial is an· open trial. Section 327 of CrPC is reproduc;ed as hereunder: MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. [DR. MUKUNDAKAM SHARMA, J.] "327. Court to be open. (1) The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence 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: 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 building used by the court. (2) Notwithstanding anything contained in sub-section (1 ), the inquiry into and trial of rape or an offence under section 376, section 376A, section 3768, section 376C or section 376D of the Indian Penal Code (45 of 1860) shall be conducted in camera: Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, 9r be or remain in, the room or building used by the courr.—— (3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the court."
56. Learned counsel appearing for the respondent brought to our notice that on the direction of the Presiding Judge, a general notice inviting the public to witness the trial of the appellant was affixed on the jail gate, the appellant was represented by 38 advocates who regularly attend•3d the court in jail premises, the day-to-day proceedings of the court were reported in the newspapers daily and that the entry was allowed to all persons after entering their personal details into a register A maintained by the jail authorities. Furthermore, a retired judicial officer who was a relative of the appellant had attended all the proceedings of the court. All the aforesaid facts have not been controverted by the appellant. We have also not been shown or made aware of any fact that any permission sought for by B any intending person to witness the proceedings was refused by the authority. As a matter of fact, presence of a press person in the audience present on one occasion at least was vehemently objected to by the appellant himself. In view of the aforesaid, I find that there was sufficient compliance with c Section 327 of the CrPC.
57. After referring to the decision of this Court in the case of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, the learned senior counsel appearing for the appellant assailed the impugned notifications on the ground that the object of D expeditious trial of cases does not amount to a valid criterion for shifting the venue of the trial. In my considered opinion, the aforesaid decision has no application to the present case as in Anwar Ali case (supra) the West Bengal Special Courts Act, 1950 was enacted which provided for differential treatment for E the trial of criminals in certain cases and for certain offences. On the contrary, in the present case, the notifications issued by the Patna High Court and the Government of Bihar simply shifted the venue of the trial of cases pending against the appellant in the different courts to the premises of the District F Jail, Siwan. I wish to point out that it is well settled law that a classification may be reasonable even though a single individual is treated as a class by himself, if there are some special circumstances or reasons applicable to ~im alone and not applicable to others. The reasons which necessitated the G shifting of the venue of the trial of cases pending against the appellant only have already been discussed hereinbefore. It must be noted that no special procedure was prescribed and the cases were to be conducted and disposed of in accordance with the ordinary criminal procedure as prescribed under the H CrPC. I am, therefore, of the considered opinion that no MD. SHAHABUDDIN v. STATE OF BIHAR & ORS. 1029 [DR. MUKUNDAKAM SHARMA, J.] prejudice was caused to the appellant while shifting the cases to the Special Courts situated inside the premises of District Jail, Siwan. Therefore, I am of the considered view that there is no violation either of Section 327 or of Articles 14 and 21 of the Constitution.
58. In light of the aforesaid discussion, although aforesaid issues were raised before us for challenging the legality and the validity of the three notifications which were issued by the respondents for holding the trial of cases pending against the appellant in one Sessions Division and for constituting and establishing two Special Courts i.e. the Court of Additional District and Sessions Judge to try sessions cases pending against the appellant and the Court of Judicial Magistrate, First Class to try the cases pending against the appellant in the Court of Judicial Magistrate, First Class, within the premises of the District Jail, Siwan, I find no merit and force in the submissions of the learned senior counsel appearing for the appellant.
59. Having held, thus, in the foregoing paragraphs of this judgment, all the issues that were framed in paragraph 9 above, on the basis of the arguments of the parties stand discussed and answered.
60. That being the position, I uphold the legality and the validity of all the three notifications. Consequently, the trial can proceed as against the appellant in all the pending cases and it would continue to be held in terms of the notifications in accordance with law. ·
61. In view of the foregoing, the order passed by the High Court is upheld and consequently the appeal filed by the appellant stands dismissed. The parties are left to bear their own costs. R.P. Appeal dismissed.