28.4 None of this was considered by the Courts below, in a holistic manner. While the first order of the learned Magistrate was passed prior to committal of proceedings, the second order, which is the order of the learned ASJ, was passed after the case was committed to the session Court. The first order, by virtue of subsequent events, has lost its legal efficacy. In so far the order dated 21.01.2013 is concerned, it cannot be sustained for the very reasons set out above. The Courts below in that sense acted with material irregularity in exercise of jurisdiction vested in it in law. There is a high purpose in the provisions of Section 327 of Cr.P.C. Even in a rape trial, the Court is required to consider the various facets and dimensions obtaining in the case before taking a decision one way or the other. A mechanical approach is to be abjured.
207. These being: Gannet Co. vs De Pasquale (1979) 443 US 368; Richmond Newspaper Inc. vs Virginia (1980) 448 US 555 and Globe Newspaper Co. vs Superior Court (1982) 457 US 596. After examining the judgments Mr Justice Jagannatha Shetty concluded as follows:
31. The other objection taken by the learned counsel for the Respondents is that the present proceeding is not maintainable as the Petitioners ought to have taken recourse to the provisions of Section 397 and 482 of the Cr.P.C. and not to a proceeding under Article 226 of the Constitution of India. According to me this argument is untenable as all three proceedings would lie in the High Court, as presently positioned. The mere fact that the Petitioners have chosen to approach this Court by way of a petition under Article 226 of the Constitution of India, will not come in the way of the Court entertaining a petition. The power under Article 226 of the Constitution, which is available to the Court, is far wider. As a matter of fact, the Petitioners, not being a party to the criminal proceeding, would perhaps not be entertained if, a revision petition were to be filed under Section 397 of the Cr.P.C. or a petition under Section 482 of the Cr.P.C. This would, however, not fetter the Court from entertaining proceedings on its own against orders of the Courts below, if deemed fit, in a given case. (see Sarveshwar Singh Vs. State, 1999 "Cr. LJ 2179) 31.1 The power of the High Court to issue writs extends not only for enforcement of rights conferred under Part III of the Constitution but also for "any other purpose". The Petitioners in this case seek access to a Court proceeding, which they say has been denied to them, based on an erroneous and/or irregular exercise of jurisdiction conferred on the Courts below. The challenge is also to the advisory issued by the Respondents on the ground that it violates the Petitioners' fundamental right under Article 19(1)(a) of the Constitution. To my mind, the present petition filed under Article 226 of the Constitution is, the appropriate remedy.
32. The argument advanced by Mr. Krishnan, based on the judgment of the Supreme Court in the case of Gurmit Singh and Sakshi has relevance to the extent that ordinarily in an enquiry or trial of an offence of rape and / or allied offences, should be held in camera. The Supreme Court‟s exhortation in that regard, however, cannot be construed in manner so as to exclude the trial Courts‟ discretion to act otherwise for good reason. The Supreme Court, in my opinion, consciously uses the words "invariably" as against exclusionary words such as "must" and "without fail" when opining in paragraph 24 at pages 404 and 405 of its judgment that such trials should be held in camera and that trial Courts should "liberally" take recourse to the provisions of Sub Sections (2) and (3) of Section 327 of Cr.P.C. 32.1 To my mind there could be myriad situations in which the trial Court may not want to take recourse to Sub Section (2) of Section 327 of Cr.P.C. even in a rape trial. Take a case where the victim is a woman of small means, who is put into flesh trade by a group of persons, enjoying power and pelf. The accused in such case may want the entire proceedings to be held in camera. The trial Court while protecting the victim from unwanted public glare may still consider opening certain phases of the trial to public. One of the reasons for adopting such a course, out of many, could be to send out a signal that a fair trial would be held, which would remain impervious to powerful influences.
32.2 Every case therefore to my mind needs employment of judicial discretion which would cater to a given fact situation. It cannot be, as is sought to be argued by Mr. Krishnan, that once it is established that offence to be tried is an offence of rape (or other allied offences), the Judge would have no choice, but to hold the trial in camera.
32.3 Furthermore, in Sakshi‟s case, the Petitioner had approached the Supreme Court in a petition filed under Article 32 of the Constitution of India seeking a declaration that the term "sexual intercourse", as contained in Section 375 of the IPC would include all kinds of penetration and not be confined to penile / vaginal penetration. While the Supreme Court declined relief in respect of this prayer, it issued two significant directions. The first direction issued was that provisions of Section 327(2) of the Cr.P.C. would also apply to an inquiry or trial of offences under Section 354 and 377 of the IPC.