Delhi gang-rape: Order on in camera trial upheld
New Delhi: The order for in-camera hearing of the gang-rape and murder case of girl in a bus and banning media from reporting its proceedings was on Wednesday upheld by a Delhi Court, which said the magistrate`s direction was "sacrosanct".
Dismissing a plea challenging the order of Metropolitan Magistrate Namrita Aggarwal, District Judge R K Gauba said the magistrate was "duty bound" to pass such an order.
It is "mandatory" under the law to hold proceedings in camera and restrain media from printing and publishing the happenings inside the courtroom on rape and related offences, he said.
"The magistrate was within her rights, rather dutybound, to apply provisions contained in section 327 (2) and (3) (in-camera trial of rape cases) CrPC to the proceedings before her.
"The fact that large crowd entered into her courtroom leaving no space even for the accused persons to be brought in only added to circumstances leading to the impugned order being passed," Gauba said.
"I do not find any error, impropriety or illegality in the impugned order. Therefore, the revision petition is devoid of substance and is dismissed," he added.
The order was passed on an application moved by advocates D K Mishra and Poonam Kaushik seeking setting aside of the January 7 order of the magistrate for in-camera hearing, alleging that the court room was crowded because of the presence of large number of policemen.
Considering that the magistrate had passed the order in
the wake of unprecedented crowd in her courtroom, the DJ said, "The petitioners seek to question the order of the magistrate on facts. I am afraid this is not permissible as the judicial order is sacrosanct and cannot be questioned on factual aspects in the manner sought to be done."
He noted that the magistrate had invoked the provisions of section 327 (2)& (3) CrPC on the application of Special PP.
She had described as "unprecedented" the situation that was created in her courtroom resulting in the court being jampacked, with members of the bar and large number of public persons unconnected with the case converging and occupying every possible space, leaving no room or safe passage even for the undertrial prisoners to be brought in by the concerned authority.
Judge Gauba also said that the magistrate had passed the order after the prosecution submitted that there was apprehension to the safety of the undertrial prisoners in such a situation.
On Mishra`s claim that they have a legitimate interest in the judicial proceedings relating to the case being concerned lawyers and citizens, the court said, "Undoubtedly, under the general rule in section 327 (1) CrPC, every criminal court is expected to be an open court where public generally may be allowed access. But then, that rule does not confer any absolute right.
"It is subject to exceptions provided within the said
clause, including on the factors of the capacity of the court hall to contain persons to an extent or even public generally, from the court room or building used by the court.
"The command of the law contained in section 327(2) CrPC is than in such case (of rape) section 327 (1) CrPC would not apply and it is mandatory for the presiding judge or the magistrate to hold the proceedings in camera," Judge Gauba said.
On Mishra`s submission that the section could not be invoked by the court as the case is still at the stage of committal proceedings, the District judge said, "the premise on which the grievance is raised stems from an erroneous understanding of the statutory rule".
"The case is expected to be committed to the court of Sessions in near future. Eventually, the trial court would be required to regulate the proceedings in terms of section 327 CrPC and pass necessary orders in that regard."
Earlier, during arguments, Mishra argued that "the prosecution had stage-managed the situation by crowding the court with police personnel so that the judge passes the order for in-camera trial."
He also submitted that the media cannot be barred from reporting the proceedings in the case as the country wants to know what is happening during the trial.
In a written reply filed on behalf of Delhi Police, SPP Rajiv Mohan said the petition is not maintainable as the petitioners have not disclosed how they have been aggrieved and the relief sought is against the provisions of CrPC.
Five of the six accused arrested in the case will be produced before the court tomorrow.
The juvenile accused will be produced before the Juvenile Justice Board on January 15.
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