These are two petitions for revising the order of the Additional First Class Magistrate, Cuddalore, in C.C Nos. 552 and 568 of 1949, directing she trial of the petitioners in those two cases to take place in the Civil Debtor's yard of the Cuddalore Central Jail and dismissing the petitions put in by these petitioners to hold she court in the Additional First Class Magistrate's own Court house or other suitable court house and not in the Civil debtor's yard, C.C No. 552 of 1949 is a case concerning 30 accused, including the petitioner in Cr.R.C No. 1624 of 1949, and the offences therein are offences under Ss. 147, 332, 353 and 149 I.P.C.C.C No. 568 of 1949 is against 26 accused, including the petitioner in Cr. R.C No. 1625 of 1949, and comprises offences under Ss. 147, 332 and 149 I.P.C Some of the accused a both the cases are detenus, and some others are convicts. The petitioner in both these criminal revision cases is a detenu and is the first accused in both the cases.

I have perused the connected records, and heard the learned counsel for the petitioner and the learned Public Prosecutor contra. The learned counsel for the petitioner raised several contentions. The first was that, under S. 352 Cr. P.C, a presiding Judge or magistrate has himself to decide about the venue of the trial, and cannot consult any other person, like the District Magistrate, as in these two cases. I cannot agree. The magistrate has, no doubt, himself to decide the venue. But there is nothing in law to prevent him from consulting his superior officers, or even others likely to give suitable advice, before arriving as his decision. Thus, a Sub Divisional Magistrate camping in an out or the way place has under our law, to try cases, and has often to hold his court in a traveller's bungalow, a Hanuman temple, or even under a village banian tree near his tent. He cannot himself know the amenities in all the pieces he proposes to camp at, and fee will have to consult his superior officers, or others competent to give advice and acquainted with the places, about the suitable place for holding his court in such camps, and then decide himself where he will hold his court. So long as a Judge or Magistrate decides for himself finally about the venue, without being fettered by the advice of any unauthorised person, I see nothing wrong about it. It will be only like a judge or magistrate heating a vakil about the right decision in a case, and then arriving at his own decision which sometimes may coincide with the decision advocated by one party.

The next contention was that, in any event, the trial ought to be held only in a court-house or similar buildings. I have already held above that, under our system of touring magistrates, courts cannot always be held in the court house, and will have often to be held in other places.

The next contention was the most important one, namely, that the place chosen for holding a court by a Judge or a Magistrate must be open to the public generally, and that a court must not be held in a place caus- ing apprehensions to the accused regarding a fair trial, or smacking of privacy or exclusion of the public There is no doubt that, generally, courts should, under the law of our land and under S. 352 Cr. P.C be held only in an open and public place to which the public generally may have access, so far as the place can conveniently, contain them, provided, of course, that the presiding Judge or Magistrate may, if he thinks fit, order, at any stage of any enquiry or trial in a particular case, that the public generally, or any particular parson, shall not have access to, or be or remain in, the room or building used by the court. The House of Lords has, no doubt, held in Scott v. Scott [1913] A.C 417 that even a nullity suit or other matrimonial suit cannot be held by the Probate, Divorce and Admiralty Division in camera even in the interests of public decency. But, that ruling will not strictly apply to this country, and to the courts here, which are governed by S. 352, Cr. P.C, where liberty is given to a Judge to exclude certain persons in certain circumstances, for valid reasons appealing to the trying Magistrate or the Judge. But the general principle, that a trial should be help in a public place and that all the members of the public should have access to it as far as may be, has not been disputed by any one in this country. In fact, in this country, even so far back as 3000 years, Hindu law-givers have directed that a court should be held in a public place, and cabinet meetings in a secret place; that the proceedings of a cabinet meeting should always be secret, while the proceedings of a court should always be public; and that the decisions of a court shall always be pronounced fully and openly, and the decisions of she cabinet never pronounced fully or openly, and, even when published, should be only in the form edited by the members of the Cabinet. That is also the general rule followed now in all the civilized countries. But there are recognised exceptions to this rule. Just as poison should not be administered to the human system when it is healthy, and it will be an offence to do so, but, nonetheless, exceptions exist, like the administration of arsenic and mercurial medicines to a diseased system, so too, in extraordinary circumstances, there will be need to relax the above rule of law about courts. That is why S. 352 Cr. P.C itself makes provision for such contingencies. Lack of space in the court house, may justify a Judge or a Magistrate in admitting only a limited number of members of the public in the interests of public health and hygiene. So too, when indecent and obscene matters have to be canvassed during a trial Judges and Magistrates in India may well have a discretion to exclude women, children and others likely to be injuriously affected by hearing that stuff. In the same way, there will be a discretion for the Judge to hold his court in a suitable building, public or private, other than his court house but unconnected with the parties to the proceedings, in cases of emergency. Thus, if a cyclone, like the recent one in Andhra Desa, brings down the court house, the Judge or Magistrate cannot sit idle, on the ground that his court house is not available for trials, but should apply at once to his superior officers, or to the Government, for placing another suitable building at his disposal, and carry on his work. So too, if a District is in a turbulent state, and the place where the court house is located is in the possession of a riotous mob, he can hold his court in any other suitable building. Again, if the conveyance of prisoners and the accused to and from the court house or other buildings, will be attended with serious danger of attack, and the rescue of the accused or the prisoners, or with heavy cost to the Government in providing an armed escort, it may well be within the powers of the Judge or Magistrate, after due consideration of the public interests and after writing down the reasons in each case, to hold the trials even inside the jail premises, where the accused are confined, let alone any building outside the jail premises, provided that the offences fried are not connected with those premises, and there is no apprehension, therefore, in the minds of the accused that they may not get a fair trial there. But this is an exceptional thing, like medicine and should not be made a usual thing, like making medicine the daily food. It is common knowledge that, in all civilized countries, passengers travelling without tickets are often tried summarily on railway platforms by Magistrates specially deputed for the purpose and who have not even a separate building for holding the trials. But, of course, such persons as care to witness such trials are allowed to witness them. All these exceptions will, in my opinion, not be contrary to the rule of the Privy Council in Mcpherson v. Mcpherson [1936] A.C 177. The decision there, that the holding of the trial in the Judge's law library behind a swinging door, which was kept closed, by accident, and had the inscription ‘private’ on it vitiated a trial, was based on the facts of that case where nothing extraordinary had to be taken into account and where the trial could well have been held in the court hall itself. No member of the public went there also on a mis-apprehension of the word ‘private’. The general principles laid down there simply emphasise the fact that courts must be held in public normally, and that members of the public should be allowed to be present as far as they can be, regard being had to the size of the buildings etc. as the potential presence of the public necessarily invests the proceedings with some degree of formality and dignity.

In Emperor v. Kailashnath Agarwal [1947] I.L.R All. 657 it has been held that it is not illegal for a Magistrate to hold an enquiry, in a proper case, inside the jail premises, or anywhere else, but that she place where the enquiry is held must be deemed to be an open court where the public, as such, has a right to attend although such right may be controlled in proper cases on special grounds, and that a Magistrate owes a duty to see that proper facilities are given to the members of the Bar and the members of the public who cannot be restricted by the jail rules or by the officer-in-charge of the jail. In Sahai Singh v. Emperor [1917] A.I.R Lah. 311 a trial held inside the jail, in the interests of safety, was held to be not vitiated. But, of course, as already stated a trial in the jail premises should only be held in the most exceptional circumstances, where the needs of the situation are imperative, and afford no alternative, consistent with the safety of the prisoners and the need to save the Government from extravagant and unnecessary expenditure.

The learned Public Prosecutor relied upon Rule 20 of the Criminal Rules of Practice which prohibits the removal of State prisoners or prisoners under sentence of death from the jail premises without the special sanction of the Government for giving evidence under the Prisoners' Testimony Act, and waists such evidence, when necessary, to be recorded inside the jail. But, of course, Rule 20 of the Criminal Rules of Practice doss not apply to trials of State prisoners for offences committed by them, whether inside or outside the jail, and only relates to evidence recorded from them. Still, of course, there is the analogy there of State prisoners feeing tried inside the jail premises in exceptional cases.

The next contention of the learned counsel for the petitioner was that the learned Additional 1st Class Magistrate was not justified in stating in his order that the court can be held by him anywhere in his jurisdiction. I agree. A court is not allowed to be held anywhere within a magistrate's jurisdiction. Thus, for instance, a Judge or Magistrate cannot hold the court in the complainant's house or the accused's house without the strongest reasons to be recorded in writing and appealing to all men as sound. It is also desirable for a magistrate, whenever he has get a court building, as here, to record reasons for holding the trial outside the court building, in another place. The learned Magistrate has not given in his order any reasons of public safety, or of danger, or of extravagant expense to the Government, for his decision to hold the trial in the Civil Debtor's yard of the Central Jail, Cuddalore. The Civil Debtor's yard of the Central Jail is also alleged, by the learned counsel for the petitioner, to be part of the Central Jail premises and to be under the control of the Superintendent of the Central Jail. The name of the place also seems to support his contention. As these offences admittedly took place against the jail officials and inside the jail premises, it is, in my opinion, desirable that some place outside the jail premises, and outside the control of the jail authorities, should be chosen for trying these two cases. It is not impossible to find such a place. In my opinion also, usually, the trial should not be held inside jail premises, leading to the apprehension that the trial hall is only the ante-chamber to the jail close by. In she circumstances of this case, I am of opinion that the trial should be held in some other place than the Civil Debtor's yard, and I direct the District Magistrate of South Arcot to choose some other convenient and suitable place for trying these two cases, and to place it at the disposal of the Additional First Class Magistrate.

N.T.R