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Bombay High Court has quashed gag order against media in Sohrabuddin case given by Special CBI judge SJ Sharma dated November 29. The court has further held that the sub-ordinate courts do not have inherent powers to pass such orders. The court held that it is only the court of records, that is the Supreme Court and the High Courts, that have inherent power of postponement of order. The counsel for the petitioners, senior advocate Mihir Desai had submitted that there are only two basic points on which a court can restrain media reporting on a certain order, the points being ,
(a) when there is real and imminent danger to fair trial
(b) that there is real and imminent danger to administration to justice.
It was also submitted by the learned advocate that the freedom of press is inherent in freedom of speech and expression. Senior advocates Abhinav Chandrachud and Abad Ponda also submitted that trial judge has exceeded the jurisdiction and that such an order was arbitrary and illegal. The court further observed that open trial is a rule in Indian law. Moreover, Section 327 itself provides that the place where criminal court is held for purpose of enquiry and trial shall be an open court. Section 327 embodies the principle of open trial. The court further went on to explain that one of the essential principles underlying ‘open trial’ is that it is one of the statutory principles of administration of justice. Open trial sub serves ends of justice. It acts as a safeguard to protect rights of witnesses, accused etc and as such ensure fairness of proceedings. The court has observed that right to open justice flows from right to fair trial. In conclusion , Justice Dere has said that ‘The press is the most powerful watchdog of public interest, in a democracy.’ In fact, the presence of press and public in criminal trials encourages all litgants to fulfill their duties. It discourages abuse of power by the prosecuting agency, prosecutors, judges and all other participants. It discourages decisions based on partiality and bias.
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