Madhya Pradesh High Court
Sumeshwar Khemi Choudhary vs State Of Madhya Pradesh on 11 August, 1993
Equivalent citations: 1994(0)MPLJ265
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
ORDER D.M. Dharmadhikari, J.
1. The applicant, by this revision, challenges the order dated 27-4-1993 passed by VI Additional Judge to the Court of Sessions Judge, Jabalpur whereby the Court has refused permission to a junior lawyer to appear with the senior lawyer for the accused appellant in Sessions Trial No. 61 of 1991 held in camera for the alleged offences under Sections 363, 366 and 376, Indian Penal Code.
2. The learned counsel appearing for the appellant argues that the provisions of Section 327 of the Criminal Procedure Code do not permit the learned trial Judge to exclude appearance of lawyers or legal practitioners engaged by the accused whatsoever be their number.
3. I have also heard the learned counsel appearing for the State who has submitted before me that the provisions of Section 327 of the Code of Criminal Procedure, particularly the two provisos to sub-sections (1) and (2) of the said section, confer discretion on the trial Judge not to permit appearance of any 'particular person', may be he is a lawyer, if the accused is already represented by another lawyer duly engaged. For answering the question posed before me, the provisions of Section 327, Criminal Procedure Code have to be examined, which read as under :-
"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 or building used by the Court.
(2) "Notwithstanding any thing contained in sub-section (1), the inquiry into and trial of rape or an offence under Section 376, Section 376A, Section 376B, Section 376C or Section 376D of the Indian Penal Code 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, or be or remain in, the room or building used by the court.
(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."
From the above quoted provisions, it is to be noted that normally every trial of a criminal case should be open to general public. The first proviso to sub-section (1) permits the trial Judge to restrict access to or appearance of or particular person to regulate the trial. Sub-section (2) of Section 327, Criminal Procedure Code has been introduced by the Amendment Act No. 45 of 1978, which starts with a Non-Obstante clause and permits conduct of trial in camera of cases of sexual offences punishable under Section 376A, 376B, 376C and 376D of the Indian Penal Code. The proviso to sub-section (2) confers discretion on the presiding Judge to allow any 'particular person' to be present in the Court of trial, if his presence is found desirable or necessary.
4. The intention behind introduction of sub-section (2) to Section 327, Criminal Procedure Code by amendment, clearly appears to be that the prosecutrix or victim of sexual offences is not embarrassed or feel intimidated while deposing in the Court. It is also to safeguard the reputation of the victim concerned and her conduct being made a subject matter of general public talk or debate. Any construction, therefore, to be placed on sub-section (2) of Section 327, Criminal Procedure Code should be such as to effectuate and fulfil the subject of holding trial in camera in the cases of sexual offenes against women.
5. In a case where the accused engages more than one lawyer, the trial court has discretion to restrict appearance of number of lawyers engaged in trial conducted in camera or else the very purpose of holding trial in camera would be frustrated and the women may feel embarrassed to depose in the presence of a group of lawyers, may be male or female.
6. In the present case, the accused is already represented by a senior lawyer who can fully safeguard the interest of the accused. The question is whether the junior lawyer engaged by the accused should also have a right to remain present in the trial conducted in camera.
7. In my considered opinion, proviso to sub-section (2) of Section 327, Criminal Procedure Code, by implication, confers power and discretion on the presiding Judge to allow or restrict appearance of any particular person, may be he is an additional lawyer engaged by the accused person in his defence. It is true that there is no prohibition in law for the accused to engage more than one lawyer to defend him but where the trial is held in camera, the presiding Judge has inherent power to regulate such trial and to restrict appearance of the persons other than parties and also legal practitioners appearing for them where their number is more than one for each of the parties. Such power and discretion in the presiding Judge have to be inferred from the provisions of the Code. The purpose to be achieved by holding trial in camera of the cases of sexual offences is to ensure suitable atmosphere of the Court in which the prosecutrix may not feel shy or embarrassed in making frank disclosures while deposing in the course of trial.
8. For the aforesaid reasons, this revision cannot be allowed and is hereby dismissed.