Full Judgment
K. Ramanna, J.
1. An unsuccessful petitioner-accused has come up with this petition, challenging the order dated 27-12-2004 in S.C. No. 64/2002, passed by the Fast Track Court-VIII Sessions, Bangalore City.
2. The brief facts leading to the case are the petitioner has been chargesheeted for offences punishable under Sections 376 and 420 of the I.P.C. The trial of the case was excepted to commence on 27-12-2004 and the trial was to be conducted in an in camera form. At that time, the learned Counsel for the petitioner-accused submitted before the Court-below to conduct the trial in the Court hall itself in the form of in camera, excluding the presence of unconcerned, as it is a normal procedure and it is not convenient to hold and conduct trial in the private chamber of the Trial Court. But the request of the learned Counsel for the petitioner was rejected and the Trial Court, directed the petitioner-accused, the Counsel for the petitioner and the prosecutor to come to the chamber of the Trial Court and raised from the Court. When the case is called in the chamber of the Trial Court, the learned Counsel for the petitioner-accused submitted an application under Section 327 of the Criminal Procedure Code to conduct the trial in the Court hall itself in the form of in camera. But that application came to be rejected by the Trial Court and passed the impugned order under revision. Hence, this revision petition.
3. I have heard the arguments of the learned Counsel for the petitioner and the learned High Court Government Pleader for the respondent and perused the records.
4. During the course of the arguments, learned Counsel for the petitioner submitted that the chamber of the Trial Court i.e., Fast Track Court-VIII is a small one and it is very difficult to accommodate the Prosecutor, defence Counsel, the accused as well as the prosecution witnesses and the staff of the Trial Court. Therefore, the request made by the learned Counsel for the petitioner-accused came to be rejected on the ground that when the accused is facing charge under Section 376 of the I.P.C. and the Trial Court is expected to follow the procedure contained in Section 327 of the Criminal Procedure Code and record the evidence of prosecutrix. Therefore, the Trial Court was wrong in rejecting the application filed by the petitioner-accused, erroneously, which is illegal and incorrect and call for interference of this Court. In support of all these contentions, learned counsel for the petitioner submitted that in camera means in chambers, in private. A judicial proceedings is said to be heard in camera either when the hearing is held before the Judge in his private chambers or when all spectators are excluded from the Court room. Further, the learned counsel for the petitioner submitted that according to the dictionary 'the In camera proceedings' means trial or hearing held in a place not open to the public such as Judges lobby or chambers. 'In Chamber' means where a common meaning of word 'chambers' is room adjacent to Court room in which Judge performs the duties of his office when Court is not in sessions, it also cannotes facts that judicial action was taken when Court was not in a sessions. Thus, when Judge performs the judicial act while Court was not in sessions in the matter acted upon, it is said whether act performed in the Judges chambers, the library at his house. Therefore, the Court can record the evidence of the prosecutrix in the open Court, if sufficient accommodation is not available in the chambers of the Trial Court. In support of all these contentions, learned Counsel for the petitioner relied on several decisions. In the case of Scott (otherwise Horgan) and Anr. v. Scott, 1913 P.C. where in it was held that the order to hear in camera was made without jurisdiction, that the order, assuming that there was jurisdiction to make it, did not prevent the subsequent publication of the proceedings; that the order to pay costs was not a judgment in a 'criminal cause or matter' within Section 47 of the Judicature Act, 1873, so that no appeal would lie from it. In the same Judgment, the Hon'ble Court held that when the subject-matter of the action would be destroyed by a hearing in open Court, in a case of some secret process of manufacture, the doors may be closed and the Court may close or clear if such a precaution is necessary for the administration of justice. Tumult or disorder, or the just apprehension of it, would certainly justify the exclusion of all from whom such interruption is expected, and, if discrimination is impracticable, the exclusion of the public in general.
5. Further, learned Counsel for the petitioner has also referred Blackstone's 'Criminal Practice', 1992, wherein the author has stated that the normal rule is that criminal proceedings (like other litigation) should be conducted publicly. Therefore, the Trial Court has got ample powers to send all the general public, who are expected to sit in the open Court and also the Advocates, who are unconnected with the case and record the evidence. The Trial Court, without considering about the dimensions of the chamber, straightaway rejected the application filed by the petitioner, which is illegal and incorrect and liable to be set aside.
6. Per contra, learned High Court Government Pleader for the respondent submitted that the chargesheet has been filed against the petitioner-accused for the aforesaid offences and if the trial is conducted in the open Court, there is every likelihood of causing damage to the prosecutrix when the cross-examination was commenced. Therefore, the Trial Court has rightly rejected the application filed by the petitioner to conduct the trial in the open Court. Therefore, the present petition is liable to be rejected.
7. In support of his contention, learned High Court Government pleader has relied on the decision reported in : 1996 CriLJ1728 Head Note I-sexual offence-In camera trials-Court seemed invariably resort to-trial by lady Judges, whenever available, suggested-Anonymity of victim-to be maintained.
8. In another decision in the case of Khar Singh v. State (Delhi Administration) Indira Gandhi Assasination, : 1989 CriLJ1 wherein the Court has held as follows:
'23. The next main contention advanced by the Counsel for the appellants is about the nature of the trial. It was contended that under Article 21 of the Constitution a citizen has a right to an open public trial and as by changing the venue the trial was shifted to Tihar Jail, it could not be said to be an open public trial. Learned Counsel also referred to certain orders passed by the trial Court wherein it has been provided that representatives of the Press may be permitted to attend and while passing those orders the learned trial Judge had indicated that for security and other regulations it will be open to Jail authorities to regulate the entry or issue passes necessary for coming to the Court and in the basis of these circumstances and the situation as it was in Tihar Jail it was contended that the trial was not public and open and therefore on this ground the trial vitiates. It was also contended that provisions contained in Section 327, Criminal Procedure Code, clearly provides that a trial in a criminal case has to be public and open except if any part of the proceedings for some special reasons to be recorded by the trial Court, could be in camera. It was contended that the High Court while exercising jurisdiction under Section 9(6) notified the place of trial as Tihar Jail, it indirectly did what the trial Court could have done in respect of particular part of the proceedings and the High Court has no jurisdiction under Section 327 to order trial to be held in camera or private and in fact as the trial was shifted to Tihar Jail it ceased to be open and public trial. Learned Counsel on this part of the contention referred to decisions from American Supreme Court and also from House of Lords. In fact, the argument advanced has been on the basis of the American decisions where the concept of open trial has developed in due course of time whereas so far as India is concerned here even before the 1973 Code of Criminal Procedure and even before the Constitution our criminal practice always contemplated a trial which is open to public.'
9. So, after hearing the arguments, the point that arise for consideration and determining the decision is:
'Whether the impugned order under challenge is illegal or incorrect and if so, call for interference?'
10. The material placed on record clearly indicates that the petitioner is facing charge for offence like Section 376 of the I.P.C. No doubt that such cases are to be tried in camera in the chambers of the Sessions Judge. But when the Trial Court has no sufficient accommodation to accommodate the accused, prosecutrix, defence Counsel and so also the staff, which require to assist the Trial Court in recording the evidence of the prosecution, considering the fact that the chamber of the Trial Court is very small and the Trial Court cannot accommodate the accused and other prosecution witnesses, defence counsel and staff in a small chamber and the Court ought to have allowed the application filed by the petitioner under Section 327 of the Criminal Procedure code, for recording the evidence of the prosecutrix in the Court Hall, after sending the general public and the Advocates, who are unconnected with the case by closing the doors and windows. The Advocates are the officers of the Court and they were not excepted to stand when the examination-in-chief was going on in the chambers of the Trial Court and when it is not possible to accommodate the aforesaid persons, like prosecutrix, public prosecutor, accused and his advocate and Court staff, the Trial Court ought to have allowed the application filed by the petitioner. The Privy Council in 1913 has clearly held that the evidence of the prosecutrix may be recorded in an open Court, after taking all precautions, after sending the general public, press and other persons, including junior Advocates of the defense Counsel.
11. Therefore, the impugned order under challenge is liable to be set aside. Accordingly, the revision petition is allowed. The order dated 27-12-2004 in S.C. 64/2002 passed by the Trial Court is hereby set aside. The Trial Court is directed to conduct the trial in the open Court by following the observations made in this petition.