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TMI Blog1981 (1) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was filed on the 20th March 1969 against 38 accused persons under Section 120B of the Indian Penal Code read with Sections 3, 9 and 10 of the Act. The charges against the accused were no doubt very serious and concerned the security of the State, as the accused persons are alleged to have passed on some military secrets to the enemy resulting in serious detriment to the safety and security of our country. Of the 38 accused persons named in the chargesheet, only 17 were in custody and a commitment inquiry into the charges was held against them by the trial Magistrate. 3. During the commitment inquiry the State filed an application under Section 14 of the Act praying that the proceedings be held in camera and public should be excluded from attending the hearings of the case because the statements made in the course of the proceedings would be prejudicial to the safety of the State. It was also prayed that apart from excluding the public from the hearings of the proceeding, the accused should not be allowed to have access to. or be given copies of the statements of the witnesses recorded by the Magistrate or those recorded earlier during police investigation. The Magistrate part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion but have given separate reasons for coming to the conclusion arrived at by them. 6. The only question that is to he determined in the present appeal is as to the scope and ambit of Section 14 of the Act. Mr. Mukherjee, appearing for the State, however, submitted that on a close scrutiny of the language employed in Section 14, it would appear that the statute contains a twofold bar (1) that publication of any evidence cannot be given, and (2) that public should be excluded from attending the hearing of the proceedings. The learned Counsel appearing for the respondents submitted that Section 14 does not in any way deprive the valuable right of the accused to get copies of the statements of witnesses re corded during the commitment inquiry or the documents or statements recorded by the police which is a statutory right conferred on the accused under the CrPC and the Criminal rules framed there under by various High Courts. All that Section 14 prohibits is that the public be excluded from attending the hearings of the inquiry. Since the Magistrate had already acceded to this prayer of the accused, there was nothing more that could be done by him. 7. It appears that the Calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secrets Act, 1923 when it reasonably appears to the Court that a trial ostiis apertis would have the, risk of any publication of any evidence to be given or any statements to be made in course of the proceedings would be prejudicial to the safety of the State, the Court in exercise of its discretion can exclude the public from such proceedings and that this power is in addition to the inherent power exercised by the Court to do justice. 10. It may be noticed that the High Court did not go to the extreme extent of holding that even the statements or evidence recorded by the Magistrate in the course of the proceedings would have to be excluded under Section 14. All that was held by the High Court was that the Court has a discretion to exclude the public from the proceedings and that this power of exclusion was available to the court apart from the inherent power which every Court possessed in this matter. With due respect we find ourselves in agreement with the view taken by the Calcutta High Court in Fletcher's case (supra) as mentioned above. However, we find ourselves unable to agree with the view taken by the High Court in the judgment under appeal for the reasons that we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations made by this Court fully apply to the facts of the present case also on the view that we take on the scope and am bit of Section 14 of the Act. 14. There can be no doubt that an open trial held in public is the general rule and seems to be the very concomitant of a fair and reasonable trial. Yet the public can be excluded from the hearings of the trial and the proceedings can be held in camera only under very exceptional circumstances as pointed out by this Court in the aforesaid case. This being the position, Section 14 must be interpreted so as to fall in line with the observations made and the test laid down by this Court regarding the doc trine of holding proceedings in camera. A close and careful scrutiny of Section 14 would itself clearly show that the section does not contemplate the type of exclusion that the High Court seems to think. 15. It is true that offences under the Act are very serious offences and maintenance of secrecy is of the very essence of the matter but that by itself will not justify the legislature to pass an Act so as to deprive an accused of the valuable right to defend or, for that matter to stifle the defence itself. The importance of hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ukherjee argued that the opening words of Section 14, referred to above, really amount to a non obstante clause overriding the provisions of all Acts including the CrPC and the mode of trial contemplated by Section 14 would take precedence over the mode of trial provided by Section 251A or 252 of the CrPC. We are, however, unable to agree with this extreme argument which in fact overstates the law. It is well settled that a non obstante clause has doubtless the effect of overriding the provisions of a law or of the law in which the said clause is inserted. Sarathi in 'Interpretation of Statutes' defines a non obstante clause thus: A section sometimes begins with the phrase 'notwithstanding anything contained etc. Such a clause is called a non obstante clause and its general purpose is to give the provision contained in the non obstante clause an overriding effect in the event of a conflict between it and the rest of the Section. 18. In Aswini Kumar Ghosh v. Arabinda Bose, [1953]4SCR1 Sastri, C.J., held that the non obstante clause cannot reasonably be read as overriding anything contained in any relevant existing law which is inconsistent with the new enactment. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion, however, is: does the first part of Section 14 empower the court to take away the valuable right of an accused of getting copies of the statements recorded by the Magistrate before the Court? Even before the amending Act of 1955, under the criminal rules framed by various High Courts, an accused was undoubtedly entitled to have copies of the statements of witnesses recorded by the police. This is a very valuable right because without having the statements recorded by the police in his possession, it would be difficult, if not impossible, for an accused to defend himself effectively. It is well settled that fouler the crime the higher should be the proof. If an accused is not supplied either the statements recorded by the police or the statements of witnesses recorded at the inquiry or the trial, how can he possibly defend himself and instruct his lawyer to cross-examine the witnesses successfully and effectively so as to disprove the prosecution case. We, therefore, think that Section 14 could never have intended to take away or deprive an accused of this valuable right which has been conferred on him by the criminal law of the land. The legislature when it passed the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. 23. Thus, if we hold that Section 14 by using the word 'publication' deprives an accused of getting any copies of the statement of witnesses or of the judgment under Section 548 of the CrPC or Criminal Rules 308 and 310 framed by the Calcutta High Court, then it would be difficult to uphold the constitutional validity of Section 14 because then the procedure would become extremely un-reasonable, harsh and prejudicial to the accused as a result of which the case would have been tried according to a procedure which was not in consonance with the provisions of Article 21 of the Constitution. This aspect of the matter does not appear to have been considered by the High Court perhaps because Maneka Gandhi's case (supra) came much later. 24. Mr. Mukherjee submitted that if the accused is allowed to have access to the statements recorded by the police or is given a copy of the statement reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and a true interpretation of the language employed in Section 14 of the Act, we reach the following conclusions: 1. That Section 14 apart from providing that proceedings of the Court may be held' in camera under the circumstances mentioned in the section, does not in any way affect or override the provisions of the Criminal Procedure Code relating to enquiries or trials held thereunder. 2. That Section 14 does not in any way deprive the valuable rights of the accused to get copies of the statement recorded by the Magistrate or statements of witnesses recorded by the police or the documents obtained by the Police during the investigation as envisaged by Criminal Rules 308 and 310 framed under the CrPC by various High Courts nor does Section 14 in any way affect the right of the accused to get copies under Section 548 of the CrPC 3. That the opening words of Section 14 do not amount to a non obstante clause but are merely in the nature of an enabling provision reserving the inherent powers of the Court to exclude the public from the proceedings if the Court is of the opinion that it is just and expedient to do so. 4. That there was absolutely no impropriety on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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