"..22. I cannot lightly brush aside the complaint that was made to me, while I was receiving applications, by more than one senior counsel, practicing in this Court, of the treatment that they had received while they were engaged to do their duty in defending 2 Pari materia with Section 352 of the Code of Criminal Procedure, 1898 WP(C) 195/2013 Page 20 of 38 their clients. Everyone of them complained that there was inordinate amount of delay outside the jail and inside the jail; the learned Magistrate failed to realize that he must, as far as possible, try to reproduce the atmosphere of a Court room. The learned Magistrate may have been compelled to hold his inquiry inside the jail by reason of the Standing Order mentioned by the District Magistrate in his order rejecting the application for transfer. I can find no provision in the Criminal Procedure Code which compels a Magistrate to hold his Court in the usual Court room. Section 352 Cr.P.C.3, probably contemplates that a Magistrate can hold his Court anywhere he likes. The Standing order cannot bind the learned Magistrate in his judicial capacity, but as both the Executive and the judicial functions are not separated, the executive order directing the Magistrate to hold his Court inside the jail is probably binding on him. But the learned Magistrate, wherever he may be compelled to sit by executive orders, is bound by the provisions of section 352 Cr.P.C., and he must realize that the place where the trial is held must be something that an open Court to which the public generally may have access so far as the same can conveniently contain them.
"...5.7 In the light of the above discussion, a specific proviso should be added to Section 327 of the Code of Criminal Procedure, as under: -
proviso to be added to section 327 of the Code of Criminal Procedure, 1973.
"Provided further that unless the presiding judge or magistrate, for reasons to be recorded directs otherwise, the inquiry into and trial of rape or allied offence shall be conducted in camera.
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.