Criminal Procedure Code

While the main part of section 327 of the Criminal Procedure Code embodies the principle of public trial in open court the proviso recognises an exception to the principle. Cases may occur where the requirement of the administration of justice itself may make it necessary for the Court to hold a trial in camera. [28] Following are some instances where in camera trial was made use of: Rape The word ‘Rape’ is derived from the Latin term ‘Rapio’, which means ‘to seize’.

Thus, rape literally means a forcible seizure and that is the essential characteristic feature of the offence. In common parlance, it means intercourse without her consent by force, fear or fraud. In other words, rape is the violation of the private person of a woman. Rape is not just the physical violation of a woman’s body but also psychological and emotional as well. In such cases, it is good cause and healthy practice for the courts to respect the privacy of the victim and not harass her more by holding an open court trial where the media and the public will be allowed.

She has had enough to deal with already. She doesn’t have to deal with the constant media scrutiny and the judging eyes of the public while she is answering the questions put in cross-examination which are more often than not very embarrassing and derogatory. In cases of rape and such other sexual offences, the undue publicity given to the court proceedings is evidently harmful to the unfortunate women victims of such crimes.

Such publicity would mar their future in many ways, and may make their life miserable in society. In order to protect women against such publicity the court has discretion to hold inquiries and trial in such cases in camera[29]. Section 327, while providing for open court has provided for in camera proceedings as well, under the proviso to sub-section (1). Sub-section (2) specifically provides the procedure of conducting trial for sexual offences.

It reads: “Notwithstanding anything contained in sub-section (1) the inquiry into and trial of rape or an offence under section 376[30], 376-A[31], 376-B[32], 376-C[33] or 376-D[34] 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. ”

An amendment in 2008 has added another proviso to this sub-section and it reads as follows: “PROVIDED FURTHER that in camera trial shall be conducted as far as practicable by a woman judge or magistrate. ” The legislative intent behind these provisions is obvious. The framers of the law envisaged upholding the right of a woman to her privacy. After the humiliation she has gone through at the hands of a man who did not respect her body, putting her through rounds of open court trial would be cruel and inhumane.

But, even if in camera trials are done, most of the witnesses turn hostile, then a question arises, what is the use of in camera trials? Does it truly serve its purpose? Take the case of Shiney Ahuja rape case, a 20 year-old maid who worked in Shiney Ahuja’s house accused him of raped her at his Andheri West home June 14, 2009. He was arrested and spent 110 days in police and judicial custody in various jails before the Bombay High Court granted him bail on surety of Rs. 50,000.

Following a nationwide furore over the incident and intervention by the National Commission of Women, Chief Minister Ashok Chavan had ordered the transfer of the case from a regular court to a fast track court to ensure speedy justice for the victim. While granting bail, Justice A. P. Deshpande had imposed stringent conditions on ordering Shiney to live in New Delhi till the trial started in Mumbai, not to influence witnesses, deposit his passport with the police, and report regularly to a nearby police station while in the capital.

She then, on the 8th September, 2010 told the court that she was not actually raped and she just filed the complaint because of some pressure from a woman who introduced her to the actor. The case against Shiney will continue before the fast track court and the outcome would depend on the statements of other witnesses besides the evidence gathered against him. About the victim, legal circles say that if she was found to have lied before the court, she could be liable for perjury and face appropriate action. The next hearing in the case is scheduled for Sep 15.

The trial is being conducted in-camera before the Sewri fast track court. In-camera trial refers to a case where the court bars the media from reporting about the case as per section 327 of the CrPC, applicable in sensitive cases like rape. [35] High profile cases In the hit-and-run case in which actor Salman Khan is accused of killing one and injuring four others, Salman had moved the High Court demanding an in-camera trial and later amended his plea to just recording deposition of eye witness Ravindra Patil in-camera. 10 charges against Salman even as the actor had pleaded not guilty.

The magistrate had rejected Salman's plea for in-camera trial saying the grounds cited by the actor did not make out a case for such trial. He also noted that in-camera trial is held in cases of rape or unnatural offences to protect the identity of victim or witnesses but in this case it was not justified. Aggrieved Salman moved the High Court. The counsel for Salman had pleaded in the lower court that media was going overboard in reporting this case. He said interviews of witnesses appeared in media which prejudiced the mind of the court and the people.

Prosecution opposed Salman's plea saying that this was not a case for in-camera trial and that the grounds cited by the actor were not relevant to ask for in-camera trial. Salman was exempted from appearance throughout the trial unless his presence was felt necessary by the court. Patil, former police bodyguard of Salman and a key witness, had alleged earlier that he had received threats from actor's relatives asking him not to depose as a result of which he did not appear during three occasions earlier.

Patil's deposition is considered significant as he was accompanying Salman when the actor allegedly rammed his car into a bakery killing one person and injuring four on September 28, 2002. Patil had earlier given a police statement that he had warned the actor not to drive so rashly or else he would meet with an accident but Salman did not pay heed to his advice. The High Court had dropped the charge of culpable homicide not amounting to murder against Salman and directed the lower court to frame other charges. 

In such cases, there are higher chances of the accused going through trial by media and the judges being influenced by the same. In these cases, it is but natural to hold the trial in camera and also to record the statements of witnesses in camera or on camera which may be played in the court. Again, the Nitish Katara murder case,[37] where Nitish Katara was murdered by the family of Bharti Yadav who belonged to a family of criminals-politicians for ‘tarnishing’ the reputation of the family by falling in love with Bharti. Bharti, after the murder had moved to London.

But when called to testify, she refused to heed to the order. The court had to order her passport to be cancelled so that her stay in London may be made illegal so that she could be compelled to come to India to testify. She finally relented, but by this time there was a lot of media attention around this and she requested for an in camera hearing of her evidence. She requested that Nitish Katara’s sister not be present but okay-ed the presence of Nitish’s parents. National security concerns In the case of Kartar Singh v.

State of Punjab,[38] the Supreme Court upheld the validity of secitonn 16(2) and (3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 [TADA] which gave the discretion to the designated court to keep the identity and address of a witness secret upon certain contingencies; to hold the proceedings at a place to be decided by the court and to withhold the names and addresses of witnesses in its orders. The court held that the right of the accused to cross-examine the prosecution witnesses was not absolute but was subject to exceptions.

One manner in which the accused may seek to diminish the effect of adverse media publicity upon his trial at a particular place is to apply for transfer of proceedings under sections 406 and 407 of the Criminal Procedure Code, 1973. The question of transfer of cases was dealt with in Maneka Sanjay Gandhi v. Rani Jethmalani,[39] wherein it was observed by Justice V. R. Krishna Iyer: “Turbulent conditions putting the accused’s life in danger and creating chaos inside the court hall may jettison public justice.

If there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate vitiating the necessary neutrality to hold a detached judicial trial, the situation may be said to have deteoriated to such an extent as to warrant transfer. ” The judges or the court could also come up with some guidelines to the media as to how to conduct themselves in a public trial and a private one. They could set out the rules which the media has to follow while reporting cases in their newspapers.

The media needs to be scrutinized and carefully monitored. The media should not be allowed to interview the victims or the suspects in a case. The court should inform the media of any cases that they are trying in the form of a memo or a document without revealing the names of the parties, the witnesses etc. [40] The most potent weapon against trial by media my be found in the law of contempt of various countries which punishes publications that influence, prejudice or in any manner interfere or tend to interfere with the administration of justice.

However, contempt proceedings constitute not preventive but punitive action against trial by media as they are a means of punishing the contemnor rather then providing a remedy to the accused who might have suffered due to the contemnor’s activities. The publication or the media which interfere with the administration of justice must be reprimanded and held liable for contempt and for obstructing the administration of justice much to the detriment of the parties, in terms of rights and to the court, in terms of time.

The court should, in as many cases as possible, order for in camera trial so that the witnesses are comfortable in the environment without the glaring and judging eyes of the public or the constant media attention. The statements could also be recorded on camera in the homes of the witness or the victim and played at the courthouse later on. This would save a lot of time which is spent by the victim in commuting from their place of residence to the courthouse for the hearing.

CONCLUSION

Incamera trials, though it has its disadvantages, this shouldn’t prevent the court from opting for this method of trial if it is evident that this would be for the benefit of the parties to the trial. The basic objective of criminal law being the protection of the rights of the victim and those who are helping the court in administering justice-like witnesses who testify for or against the accused.

With this in mind, in camera trials should be encouraged. As for the media, any opinion they have on the conduct of the trial is likely to be greatly coloured by other circumstances. The press, on the other hand, is much more likely to be objective in its view of the proceeding and see that the public interest is protected. This distinction between the media and the press should and could be kept in mind when the court is passing an order for in camera trial.

Isn’t a little bit of canvassing for the rights of the victim necessary so that the court does not completely corrupt the use of in camera or closed trials? The researcher is of the opinion the in camera trial is a boon to the victims of sexual assault and as far as possible in camera trial should be held. But, this would come with a caveat that the court will give a copy of what happened inside the courtroom at the end of the day without revealing the names of the witnesses who have testified and the parties.

The need of the hour is a harmony between the media and the in camera trial. The researcher strongly believes that in the greater interest of the society and the victim, in camera trial is totally justified. As for the rights of the accused, he can ask for an in camera trial proceeding too but when it is asked by the victim, he cannot object to it because the balance of convenience here is in the favour of the victim. Also, the society may be affected adversely or in any other manner if details of a gruesome murder or like cases are made public.