AZAD JAMMU & KASHMIR GOVERNMENT Versus MUHAMMAD IBRAHIM KHAN

ORDER

ABDUL MAJEED MALLICK, J.‑ --This petition for leave to appeal arises out of the judgment of the High Court, dated 30th October, 1982, whereby prayer for holding proceedings fn camera, was disallowed.

2. Sardar Muhammad Ibrahim Khan has challenged the propriety and legality of his detention in the High Court. The detention is shown to have been made under the Azad Jammu & Kashmir Civil Defence Rules. B During the hearing of writ petition, the petitioners moved an application before the High Court (Division Bench) wherein one of the reliefs claimed was that proceedings in the case may be held in camera. This prayer was declined by the learned Judges of the High Court on the view that in the absence of provisions (relating to proceedings in camera) in the Civil Defence Rules, 1962 or the Azad Jammu & Kashmir Interim Constitution Act, 1974, High Court could not hold the proceedings in camera, in a writ petition. In concluding part of the judgment it was observed :‑

" ....has also referred to a case reported as P L D 1980 Jour 65 wherein the proceedings were held in Supreme Judicial Council under the Azad Jammu & Kashmir Supreme Judicial Council Act of 1979, wherein a specific provision has been made for holding the proceedings in camera. No such provision exists either in Civil Defence Rules of 1962 or in the Azad Jammu & Kashmir Interim Constitution Act of 1974, providing for holding proceedings in a writ petition in camera. It is well‑settled principle of law that proceedings in the Court should be in an open Court until and unless any statutory provision requires such proceedings to be held in camera, in view of the relevant facts of the case."

3. Mr. Fazal‑e‑Hussain, the learned counsel for the petitioners, raised the following points :‑

(i) that despite absence of express provisions relating to proceedings in camera, in Civil Defence Rules and in the Interim Constitution Act, the High Court was vested with inherent jurisdiction to hold the proceedings in Camera ;

(ii) that speeches attributed to the detenu, contain unhappy and inde cent criticism against the Governments of Pakistan and Azad Kashmir. All the speeches are made in bad taste. Hearing of the case in open Court, would tend to help wide Press publicity which may impair the relations between Azad Kashmir and Pakistan ; and

(iii) that hearing in open Court would attract large number of followers of the detenu and they may create a problem of law and order.

The learned counsel took pains to justify his stand for holding the pro ceedings in camera. In support of his contentions, he referred to Shahkot Bus Service, Shahkot v. The State and another (1969 S C M R 325), The Province of If West Punjab v. Khan Iftikhar Hussain Khan of Mamdot (P L D 1949 Lah. 572), Zulfikar Ali Bhutto v. The State (PLD1979SC53), Mahrof Hussain Khan v. Mst. Zahida Par veen (PLD1981SC(AJ&K)123.) and Halsbury's Laws of England, 4th Edition, Volume 10.

4. Sardar Muhammad Ibrahim Khan admitted that the High Court has ample inherent power to proceed in camera, but he objected to the approach of the petitioners to seek camera proceedings and contended that the Government wants the proceedings may be held in camera so that its fabrications and concoctions are not made known to the public. He gave the details of his detention and urged that the Government was anxious to keep him in detention and with that object was trying to delay the proceed ings. He raised a point that no question of secrecy of defence or safety of the State was involved in the case. He argued that all the points raised in the petition, were argued today in the open Court, then how it is expedient to impose a rider that these very points may be heard in camera, in the High Court.

5. Detailed arguments are made by both sides. The matter arises out of the detention order and the detenu is fighting for his liberty, hence this deserves expeditious disposal. We, therefore, feel advised to treat this petition as appeal and decide it as such. In similar circumstances this Court has treated various petitions for leave to appeal as appeals and disposed them of accordingly. Reference may be made to Azad Government of the State of Jammu & Kashmir v. Kashmir Timber Corporation (P L D 1978 S C (AJ&K) 42) and Raja Abdul Hamid Khan and another v. Muhammad Naseem and others (1980 C L C 1105).

6. The impugned judgment reflects that the learned Judges of the High Court entertained the view that in absence of statutory provisions, proceedings could not be held in camera. It was observed that unless there were express provisions in the Civil Defence Rules or the Interim Constitution Act of 1974, to hold the proceedings in camera, the High Court was not empowered to issue directions in that respect. This view of the High Court is not correct. It is undeniable that the High Court is vested with wide inherent powers. Inherent powers come into play, in absence of statutory provisions, to meet the ends of justice. The Courts jealously protect the domain of their jurisdiction. This is moreso in the case of superior Courts. In our view, in absence of any statutory limitation or restriction, the High Court is fully empowered t6 take proceedings in camera in an appropriate case. Reference may be made to the case of Kh. Muhammad Yusuf Saraf, heard in January last by the Full Bench of the High Court. In that case Kh. Muhammad Yusuf Saraf challenged the law imposing restriction on the practice of retired Judges of superior Courts, through a writ petition under section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. In that case, the learned Judges allowed the prayer of the petitioner and held the proceedings in camera. It may be stated that in that case the prayer was not opposed by the opposite counsel. But the fact remains that consent or agreement of the parties does not give jurisdiction to Court or Tribunal. In that case too, there were no express statutory provisions in the impugned law requiring to take proceedings in camera. Therefore, we agree with the contention of the learned counsel for the appellant that the High Court was competent to hear the case in camera. Sardar Muhammad Ibrahim Khan, has rightly agreed with the proposition.

In Shahkot Bus Service, Shahkot v. The State and another it was held under : ‑

"It is, no doubt, true that where express provision is made in the Code itself for a particular purpose recourse cannot be had to the inherent jurisdiction to achieve the same purpose, but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of this power the High Court can make all such order which may be necessary to do real and substantial justice and prevent abuse of the process of the Court, subject only to the limitation that cannot override an express provision of the Code."

In The Province of West Punjab v. Khan Iftikhar Hussain Khan of Mamdot it was observed :‑

"Where allegations of misconduct against an ex‑Minister were the subject of inquiry before the High Court under the Public and Representative Offices (Disqualification). Act, 1949, and the evidence led on the charges, in certain respects directly referred to very high matters of State, Public disclosure of which might be fraught with the gravest consequences to the State, the High Court, while being satisfied that in a proper case falling under the Act it would be open to the Court to direct that the entire proceedings should be held in camera, ordered that it would be sufficient in the case before Court to restrict publication of proceedings in Press to a limited extent, and accordingly directed that the Press is entitled to publish everything appearing on the Court's record of proceedings except matter the publication of which is expressly forbidden by the Court. The publication of anything which may fall from the Court, or be said by a witness or by counsel or by any other person, in the course of the proceedings, which does not appear on the official record of proceedings, was prohibited without the specific permission of the Court:"

In Zulfikar Ali Bhutto v. The State it has been observed :‑

"Let me now advert to the propriety of the orders passed by the learned trial Bench in holding this part of the proceedings in camera. The matter is governed by section 352 of the Criminal Procedure Code, 1898, which lays down that:

"The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed on 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 particu lar 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.

The operative part of this section embodies the general rule that ordinarily criminal trials should be open to the public, as publicity is the authentic hallmark of judicial proceedings. In cases decided under the Common Law of England as well as in the United States of America, there is a traditional distrust of secret trials and the right to public trial of a person accused of a crime is generally recognised. As stated by Black, J. In re: William Oliver ((1947) 333 U S 257):

Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognised as a safeguard against any attempt to employ our Courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power."

However, as stated in Corpus Juris Secundum, Volume 23, section 963 (1), pages 849 to 853, the public trial concept has never been viewed as imposing a right to inflexible strait jacket on the Courts, and it is generally conceded that 'the right to have the general public present at a trial is subject to some limitations. The trial Judge has discretion to close to the public, even without the con sent of accused where there is good cause for such action. In exercising control over the trial proceedings, the Judge may exclude those whose con duct is of disturbing nature, or whose presence is likely to interfere with the administration of justice. It is usually held that, unless accused is thereby prejudiced for want of aid, or counsel of any person whose presence might be of advantage to him, it is within the discretion of the Court to exclude persons from the Court room where it deems necessary so to do in order to preserve decorum, to secure the administration of justice, or to facilitate the proper conduct of the trial.

These principles underly the judgments cited as Scott and another v. Scott (1913 A C 417), King v. Governor of Lewes Prison ((1917) 2 K B D 254), Cora Lillian McPherson v. Cora Lillian McPherson (A I R 1936 P C 246), Naresh Shridher Mirajkar and others v. State of Maharashtra and others (A I R 1967 S C 1‑(1966) 3), W. E. Gardner v. U. Kha (A I R 1936 Rang. 471S C R 744.), In re: M. R. Venkataraman (A I R 1950 Mad. 441), Mst. Shirin Nazir v. Badruddin, Karamali Nazir and another (P L D 1963 Kar. 440), Mairaj Muhammad Khan v. The State (P L D 1978 Kar. 308), Abdul Rashid Chaudhry and others v. The State (P L D 1966 Lab. 562) and The Province of West Punjab v. Khan Iftikhar Hussain Khan of Mamdot (P L D 1940 Lab. 572).

According to Halsbury's Laws of England (4th Edn.), Volume II, para. 280 in general all persons, except children have a right to be present in Court, provided there‑ is sufficient accommodation and no disturbance of the proceedings. There is, however, an inherent jurisdiction in the Court to exclude the public if it becomes necessary so as to do so for the due administration of justice

In general, all cases, both civil and criminal, must be heard in open Court, but in certain exceptional cases, where the administration of justice would be rendered impracticable by the presence of the public, the Court may sit in camera. Thus the Court may sit in camera, either throughout the whole or part of the hearing, where it is necessary for the public safety, or where the subject‑matter of the suit would otherwise be destroyed, for example by the disclosure of a secret process or of a secret document, or where the Court is of opinion that witnesses are hindered in, or prevented from, giving evidence by the presence of the public. In addition the Court is directed or has been given power by statute or statutory rules to exclude the public in particular proceedings and is empowered to do so in any proceedings for an offence against morality or decency when evidence is given by children or young persons."

In "Mahrof Hussain Khan v. Mst. Zahida Parveen" it has been held :‑

"Section 151 of the Code of Civil Procedure, which reads

Saving of inherent power of Court.‑ Nothing in this Code should be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for ends of justice or pre vent abuse of the process of the Court, obviously gives wide powers to the High Court to make any order which may advance justice and suppress mischief. The word as may be necessary for the ends of justice' appearing in section 151 of the Code of Civil Procedure give inherent power to the High Court to interfere with the orders of the subordinate Courts and pass any order to secure the ends of justice.

7. Mr. Fazal‑e‑Hussain has emphasised that materiel placed on the file of this Court is sufficient to justify issuance of direction for holding proceedings in camera in the High Court. We have examined the material placed on the file and objections raised in the arguments in support of the contention. As we have held that the High Court is competent to lay its hands on the proposition, in a legal fashion, we restrain to issue any direc tion in that respect. The fact of the matter is that the High Court, despite holding the proceedings in open Court, is competent to restrict publica tion of scandalous, indecent and unhealthy part of criticism made in the alleged speeches. Likewise number of the audience can be curtailed to maintain decorum and congenial atmosphere. It is the duty of the execu tive to look after the law and order situation but despite that, the High Court is not deprived of the powers to control the situation.

In view of the aforesaid observations, the impugned judgment is set aside and the appeal is accepted to the extent indicated above.

Appeal accepted.