Full Judgment Text
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CASE NO.:
Transfer Petition (crl.) 77-78 of 2003
PETITIONER:
K. Anbazhagan
RESPONDENT:
The Superintendent of Police & ors.
DATE OF JUDGMENT: 18/11/2003
BENCH:
S.N. VARIAVA & H.K. SEMA.
JUDGMENT:
J U D G M E N T
SEMA,J
These two petitions have been preferred under Section 406 of the
Code of Criminal Procedure, seeking transfer of CC No.7 of 1997 and CC
No. 2 of 2001 on the file of the XI Addl. Sessions Judge (Special Court
No.1) Chennai in the State of Tamil Nadu to a court of equal and competent
jurisdiction in any other State. The facts are common in both the petitions.
Reference to parties will be as arrayed in Transfer Petition No.77 of 2003.
We also propose to dispose of the petitions by this common judgment.
Brief facts leading to the filing of the present petition may be noticed.
In 1991-96, the second respondent herein was the Chief Minister of Tamil
Nadu. AIADMK party headed by the second respondent was defeated in the
General Election held in 1996 and DMK party was voted to power. Special
courts were constituted for the trial of cases filed against the second
respondent and others, the constitution of which came to be upheld by this
Court. Thereafter, in 1997, CC No. 7 was filed for the trial of respondent
nos. 2, 3, 4 and 5, who have been charge-sheeted for offences under Sections
120-B IPC, 13(2) read with 13(1)(e) of the Prevention of Corruption Act,
1988 (hereinafter referred to as the Act) for alleged accumulation of wealth
of Rs. 66.65 crores disproportionate to their known sources of income. In
2001, CC No.2/2001 was filed on the file of Principal Special Judge,
Chennai. Respondent No. 2 and Mr. T.T.V. Dinakaran (respondent No.3 in
T.P.No.78 of 2003) have been charge-sheeted for offences under Sections
120-B IPC, 13(2) read with 13(1)(e) of Prevention of Corruption Act, 1988
for acquisition and possession of pecuniary resources and property outside
India, which are disproportionate to known sources of income, by resorting
to clandestine transfer of funds belonging to respondent No. 2 with the help
of Mr.T.T.V. Dinakaran from India to outside country by violating the
provisions of Foreign Exchange Regulation Act and from other countries
into the United Kingdom. Trial of CC No.7 of 1977 progressed and by
August 2000, 250 prosecution witnesses had been examined. We are told
that only 10 more witnesses remained to be examined in this case. In the
general election held in May, 2001 AIADMK party headed by the second
respondent secured an absolute majority in the legislative assembly. The
second respondent was unanimously chosen to be the leader of the house by
the AIADMK party. The said appointment was challenged and this Court
nullified the appointment. Consequently, on 21.9.2001, the second
respondent ceased to hold the office of Chief Minister. It is claimed that a
nominee of the second respondent was sworn in as Chief Minister of Tamil
Naidu. The Election Commission of India announced the bye-election to
the Andipatti Constituency. In the bye election held on 21.2.2002, the
second respondent was declared elected and she was again sworn in as Chief
Minister on 2.3.2002. With the change in government, 3 public prosecutors
resigned. Senior counsel S. Natarajan, who was appearing for the State also
resigned. It appears that IO Mailama Naidu, who had earlier been given an
extension, also resigned. It must be mentioned, even though we are sure that
it has nothing to do with the change in government, that due to retirements
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and routine transfers there were changes in the Special Judge also. On
7.11.2002, the trial in CC No.7 of 1997 resumed. It is alleged that since
7.11.2002 when the trial resumed as many as 76 PWs have been recalled for
cross examination on the ground that counsel appearing for the respondents
or some of them had earlier been busy in some other case filed against them.
It is claimed that the public prosecutor did not object and/or give consent to
the witnesses being recalled. Out of total 76 PWs, 64 PWs resiled from their
previous statement in chief. It is alleged that the Public Prosecutor has
not made any attempt to declare them hostile and/or to cross-examine them
by resorting to Section 154 of the Indian Evidence Act. No attempt has been
made to see that Court takes action against them for perjury. It has also been
alleged that the presence of second respondent has been dispensed with
during her examination under Section 313 Cr.P.C. and instead a
questionnaire was sent to second respondent and her reply to the
questionnaire was sent to the court in absentia. It is alleged that the
procedure so adopted is unknown to the law and the public prosecutor has
not objected to the application of the respondent No.2 for dispensing her
presence at the time of examination under Section 313 Cr.P.C. These are the
main facts, which have been pointed out by the counsel for the petitioner.
We have heard Mr. T. R. Andhyarujina, learned senior counsel for the
petitioner. We have also heard Mr. Subramanium Swamy who was the
original complainant. We have heard Mr. K.K. Venugopal and Mr.
V.A.Bobde and Mr.ATM Ranga Ramanujam, learned senior counsel for the
respondents. We have also heard Mr. Altaf Ahmed learned ASG .
Before we advert to the merit of the case, we may at this stage,
dispose of a preliminary objection raised by the counsel for the respondents,
with regard to the maintainability of the present petitions.
The main thrust of argument has been advanced by Mr. K.K.
Venugopal, learned senior counsel for respondent no. 2. The other
respondents’ counsels have more or less adopted the arguments of Mr.
Venugopal. It is contended by Mr. Venugopal that the petitioner has filed
Writ Petition Nos. 630 of 2002 and 1777 of 2002, praying for identical relief
which have been heard extensively by the High Court of Madras at Chennai
and the judgment had been reserved on 19.2.2003. He submitted that the
petitioner has filed the present petition before this Court without disclosing
that similar petitions are pending before the High Court of Madras and on
this score alone the Transfer Petitions are liable to be dismissed. He has
further submitted that although the petitioner was aware that the aforesaid
two writ petitions were to be taken up for further hearing on 6-2-2003, he
has filed the present transfer petition on 5-2-2003 by suppressing the fact
that the grievances and facts raised in these petitions are the same as were
before the High Court of Madras in the aforesaid two writ petitions. Learned
counsel has also invited our attention to paragraph I of the counter statement
of respondent No.2 to show that the statement of facts and grievances raised
before the High Court of Madras in writ petition Nos. 630 of 2002 and 1777
of 2002 are in pari-materia with the statement of facts and grievances raised
before this Court in T.P. No. 77 of 2003. In this connection, learned
counsel particularly referred to statement of facts before this Court in paras
3, 4, 7, 8, 9, 10, 13, 14, 15, 16, 17 and 18 which are stated to be in
parimateria to paras 4, 6, 9, 10, 11, 12, 15, 17, 18, 19, 20 and 21 in writ
petition No. 630 of 2002. Learned counsel, therefore, urged that parallel
proceedings over the same statement of facts pending in the High Court, if
allowed to be transferred to outside the jurisdiction of the High Court, the
majesty of the High Court would be greatly affected. It is further argued
by the counsel that the petitioner is trying to over reach the court by taking
the court for a ride, the conduct of which is highly reprehensible.
Reliance has been placed by Mr.Venugopal, senior counsel for the
respondent on S.B. Mathur vs. Matti Ullah (1995 Supp.(2) SCC 650).
There, the petitioner filed a writ petition in the High Court of Delhi seeking
interim order against his proposed transfer. The High Court merely issued
notice but had not granted any interim order. While that petition was
pending the petitioner filed another writ petition in J & K High Court
without disclosing the fact of pendency of the writ petition in the Delhi High
Court and obtained the interim order from J & K High Court and
subsequently withdrew the writ petition filed in the High Court of Delhi. It
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is in these circumstances, this Court has stayed the interim order, passed by
the J & K High Court, on the ground that the petitioner obtained interim
order without disclosing the fact that the writ petition is also pending before
the Delhi High Court. Mr. Venugopal also relied on the decision rendered in
G.Narayanaswamy Reddy(dead) by Lrs. Vs. Government of Karnataka,
(1991) 3 SCC 261. In that case, the interim orders of stay of dispossession
from land were issued by courts in favour of the landowners. This was a
highly material fact for deciding the question of delay in making the award
under the Land Acquisition Act. This fact was not disclosed by the
petitioners in Special Leave Petitions and the fact was highlighted by the
counter affidavit filed on behalf of the respondents. It is in these
circumstances, this Court observed that relief under Section 136 of the
Constitution is discretionary. The petitioner who approaches this Court for
such relief must come with full disclosure of facts and on this ground the
Special Leave Petitions were dismissed.
It would have been advisable for the petitioner to have informed this
Court about the proceedings in the Madras High Court. However, as is set
out in greater detail hereinafter, it appears that justice is not being done. In
fact it appears that the course of justice is being subverted. Thus even
though this Court might otherwise have viewed the conduct, in not
disclosing, seriously we do not feel that, in this matter, on this ground, we
can allow the course of justice to be subverted. Further we find that even
though some statements of facts made before the High Court, are in
parimateria with the facts stated before this Court, these petitions are not
parallel proceedings. The petitions pending before the High Court are under
Article 226 of the Constitution and the Transfer Petitions have been filed
under Section 406 of the Code of Criminal Procedure. The jurisdiction of
the High Court under Article 226 of the Constitution and the jurisdiction of
this Court under Section 406 Cr.P.C. are quite distinct and different.
It is also to be noticed that the prayer made before the High Court and
before this Court are also different. Before the High Court in writ petition
No. 630 of 2002 the petitioner prayed the following reliefs:-
"I pray that this Hon’ble Court may be pleased to direct
the appointment of an independent experienced Lawyer as the
Special Public Prosecutor for the conduct of the prosecution
case in C.C.No. 7 of 97 on the file of the XI Additional
Sessions Judge ( Special Court 1) Chennai, and C.C.No.2 of
2001 on the file of the Learned Principal Sessions Judge
transferred to the file of XI Additional Sessions Judge (Special
Court 1) Chennai pending disposal of the writ petition.
I, therefore, pray that this Hon’ble Court may be pleased
to issue a Writ of Mandamus or any other appropriate order or
direction in the nature of a writ, directing the entrustment of
C.C.No. 7 of 97 on the file of the XI Additional Sessions Judge
(Special Court 1) Chennai, and C.C. No.2 of 2001 on the file of
the Learned Principal Sessions Judge (Special Court 1) Chennai
to the 1st Respondent or any other independent agency not
under the control of the State Government of Tamil Nadu, and
pass such further order or orders as deem fit and proper in the
circumstances of the case and thus render justice.
In Writ Petition No.1777 of 2002, the following reliefs are
prayed for:
" In the above circumstances, it is most humbly prayed
that this Hon’ble Court may be pleased to issue a Writ of
Mandamus or any other appropriate order or direction in the
nature of Writ, appointing one or more experienced Counsel as
the prosecutor or prosecutors for conducting the criminal case
in C.C. No. 7 of 97 pending on the file of the XI Additional
Sessions Judge cum Special Judge No.1, Chennai and C.C. No.
2 of 2001 (which has been ordered to be transferred from the
Learned Principal Special Judge Chennai to the XI Additional
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Sessions Judge cum Special Judge No.1, Chennai by this
Hon’ble Court in Crl. O.P. No.21969 of 2001 dated 10.1.2002)
and directly monitor the conduct of the above said cases under
the powers of Judicial Superintendence vested in the High
Court and to pass such further orders as deemed just and proper
in the circumstances of the case and thus render justice. "
In the present petitions before this Court the following reliefs are
prayed for:
"(a) transfer of C.C.No.7 of 1997 entitled to The
Superintendent of Police Vs. J.Jayalalitha & Ors. and
C.C.No.2 of 2001 entitled to Additional Superintendent of
Police Vs. J. Jayalalitha & Ors. on the file of the XI
Additional Sessions Judge (Special Court-I) Chennai in State of
Tamil Nadu to Court of equal and competent jurisdiction in any
other State.
(b) pass such other or further order or orders as this
Hon’ble Court may deem fit and proper in the circumstances of
the case."
It is also contended by the counsel for the respondent, that having
known that the judgment in the writ petitions has been reserved by the High
Court on 19.2.2003, the petitioner obtained interim order before this Court
on 28th March, 2003 without disclosing the fact that the judgment in writ
petitions, before the High Court, has been reserved. It is true, that it was
incumbent on the part of the petitioner, to have disclosed the fact that the
writ petitions are also pending before the High Court, in which the judgment
has been reserved. But non-disclosure of this fact would not, for reasons set
out above, non-suit the petitioner to approach this Court with an application
under Section 406 Cr.P.C.
The second leg of argument what appears to be an argument of
despair, is of locus standi of the petitioner. In point of fact this question
need not detain us any longer because on 28.2.2003 this Court had already
granted permission to the petitioner to file the petition. No application has
been taken out to revoke the permission so granted. Therefore, this question
becomes mere academic. However, since the question involved is of public
importance, we proceed to answer the question. Mr. V.A. Bobde, learned
senior counsel, appearing for respondent Nos. 3 and 4 in CC 7 of 1997 and
respondent No. 3 in CC 2 of 2001 contended that in view of the provision of
sub-section 2 of Section 406 Cr.P.C. the petition is maintainable only when
motion is moved by the Attorney General or by "party interested".
According to the counsel, it is the "party interested" and not a "person
interested" and, therefore, only Attorney General or a "party interested" has
locus standi to file application and the petitioner not being a party to the
proceeding is not a "party interested", and has no locus standi to file the
present petition. We are unable to accept this submission for more than one
reason. It will be noticed that the "party interested" has not been defined
under Cr.P.C. The word "party interested" is of a wide import and,
therefore, it has to be given a wider meaning. If it was the intendment of the
legislature to give restricted meaning then they would have used words to
the effect, "party to the proceedings". In this behalf the wording of Article
139A of the Constitution of India may be looked at. Under Article 139A the
transfer can be if "the Supreme Court is satisfied on its own motion or on the
application made by the Attorney General of India or by a party to any such
case (emphasis supplied). Also if the provisions of Chapter XXIX of the
Criminal Procedure Code are looked at, it is seen that when the legislature
intended a "party to the proceeding" to have a right of appeal it specifically
so stated. The legislature, therefore, keeping in view the larger public
interest involved in a criminal justice system, purposely used words of a
wider import in Section 406. Also it is well-settled principle of law that
statutes must be interpreted to advance the cause of statute and not to defeat
it. The petitioner being a political opponent, is vitally interested in the
administration of justice in the State and is a "party interested" within the
meaning of sub-section 2 of Section 406 Cr.P.C. Even otherwise Mr.
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Subramanium Swamy was the original complainant. He supports these
transfer petitions.
It has also been urged that the petitioner being a political opponent of
respondent No.2, these petitions have been launched against respondent no.2
on ground of political vendetta. This submission has also no force. In a
democracy, the political opponents play an important role both inside and
outside the House. They are the watchdogs of the government in power. It
will be their effective weapon to counter the misdeeds and mischieves of the
government in power. They are the mouthpiece to ventilate the grievances
of the public at large, if genuinely and unbiasedly projected. In that view of
the matter, being a political opponent, the petitioner is a vitally interested
party in the run of the government or in the administration of criminal justice
in the State. The petition lodged by such persons cannot be brushed aside on
the allegation of a political vendetta, if otherwise, it is genuine and raises a
reasonable apprehension of likelihood of bias in the dispensation of criminal
justice system. This question has been set at rest by this Court in
Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288 (SCC p. 318,
para 16), where it is said:
"It is a well established proposition of law that a criminal
prosecution, if otherwise justifiable and based upon adequate
evidence does not become vitiated on account of mala fides or
political vendetta of the first informant or the complainant."
This decision was reiterated in State of Haryana & Ors. Vs. Bhajan Lal &
Ors., 1992 Supp.(1) SCC 335.
In the present case, in our view, the petitioner has raised many
justifiable and reasonable apprehensions of miscarriage of justice and
likelihood of bias, which would require our interference in exercise of our
power under Section 406 Cr.P.C.
At this stage, we may notice few decisions of this Court with regard to
the scope of Section 406 Cr.P.C. In Gurcharan Das Chadha Vs. State
of Rajasthan, 1966 (2) SCR 678 at SCR p.686, this Court observed as
under:-
"A case is transferred if there is a reasonable apprehension on
the part of a party to a case that justice will not be done. A
petitioner is not required to demonstrate that justice will
inevitably fail. He is entitled to a transfer if he shows
circumstances from which it can be inferred that he entertains
an apprehension and that it is reasonable in the circumstances
alleged. It is one of the principles of the administration of
justice that justice should not only be done but it should be seen
to be done. However, a mere allegation that there is
apprehension that justice will not be done in a given case does
not suffice. The Court has further to see whether the
apprehension is reasonable or not. To judge of the
reasonableness of the apprehension the State of the mind of the
person who entertains the apprehension is no doubt relevant but
that is not all. The apprehension must not only be entertained
but must appear to the Court to be a reasonable apprehension. "
In Mrs. Maneka Sanjay Gandhi Vs. Ms. Rani Jethmalani, (1979)
4 SCC 167, this is what this Court has said in paragraph 2:
"Assurance of a fair trial is the first imperative of the
dispensation of justice and the central criterion for the court to
consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or easy
availability of legal services or like mini-grievances.
Something more substantial, more compelling, more
imperiling, from the point of view of public justice and its
attendant environment, is necessitous if the Court is to exercise
its power of transfer. This is the cardinal principle although
the circumstances may be myriad and vary from case to case.
We have to test the petitioner’s grounds on this touchstone
bearing in mind the rule that normally the complainant has the
right to choose any court having jurisdiction and the accused
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cannot dictate where the case against him should be tried.
Even so, the process of justice should not harass the parties and
from that angle the court may weigh the circumstances.
In Abdul Nazar Madani Vs. State of Tamil Nadu , (2000) 6 SCC
204, this court pointed out in paragraph 7 at page SCC p.210 as under:-
"The purpose of the criminal trial is to dispense fair and
impartial justice uninfluenced by extraneous considerations.
When it is shown that public confidence in the fairness of a trial
would be seriously undermined, any party can seek the transfer
of a case within the State under Section 407 and anywhere in
the country under Section 406 Cr.P.C. The apprehension of not
getting a fair and impartial inquiry or trial is required to be
reasonable and not imaginary, based upon conjectures and
surmises. If it appears that the dispensation of criminal justice
is not possible impartially and objectively and without any bias,
before any court or even at any place, the appropriate court may
transfer the case to another court where it feels that holding of
fair and proper trial is conducive. No universal or hard and fast
rules can be prescribed for deciding a transfer petition which
has always to be decided on the basis of the facts of each case.
Convenience of the parties including the witnesses to be
produced at the trial is also a relevant consideration for deciding
the transfer petition. The convenience of the parties does not
necessarily mean the convenience of the petitioners alone who
approached the court on misconceived notions of apprehension.
Convenience for the purposes of transfer means the
convenience of the prosecution, other accused, the witnesses
and the larger interest of the society."
Reverting to the facts of the case, respondent no.2 is the Chief
Minister of Tamil Nadu. Respondent Nos. 3, 4 and 5 are her close relatives
or close associates. In CC 7 of 1997 and CC 2 of 2001 she has been
arraigned as accused No.1. In this petition serious contentions have been
raised from paragraph 25 to paragraph 33. These are extracted:
"25. It is submitted that the 2nd Respondent being the Chief
Minister of Tamil Nadu, the cases pending against her have to
be entrusted to an independent agency. I submit that the police
officers who are under the control of the State Government
cannot be expected to prosecute the cases against the 2nd
Respondent diligently. In fact there will be every attempt to
save the 2nd Respondent and others from punishment. Similarly
the law officers appointed by the State Government also cannot
be in charge of the cases pending against the 2nd Respondent and
others.
26. It is submitted that after nearly 7 months of lull the trial in
the Rs.66.65 crores disproportionate wealth case in C.C.No. 7/97
against the 2nd Respondent Chief Minister Ms.J.Jayalalitha and
others resumed on the 7-11-2002. In this connection it is
pertinent to point out that it is common knowledge that number
of witnesses have been cross-examined before the trial came to a
pause due to reconstitution of the Special Courts. When the trial
resumed on 7-11-2002 Indian Bank Official Shri A.R.
Arunachalam was cross examined. On his chief examination
which took place on 16-6-2000 Shri Arunachalam was cited as a
witness by the DVAC. He was an official of the Indian Bank at
the relevant point of time. He was cross examined on the
accounts maintained by Mrs. Sasikala a close associate of
Ms.J.Jayalalitha as well as the accounts maintained by Sasikala’s
relatives.
27. It is submitted that it is ascertained that another witness Shri
R.Krishnamoorthy of Saidapet who was working as a Section
officer in the Inormation and Tourism Department of
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Government of Tamil Nadu at the relevant point of time was
also cross examined. In his chief examination on 31-5-2000
Shri R.Krishnamoorthy had deposed that Shri Natarajan,
husband of Sasikala joined the social welfare department as a
Publicity Assistant on 13-5-1970 and he became an Information
and Public Relation Officer on 13-11-1970. He further deposed
in his chief examination that Shri Natarajan was in the said post
till 1976 till the abolition of the post. In 1980 Shri Natarajan got
back the post and he became a Deputy Director in 1988. Shri
R.Krishnamoorthy has clearly deposed in his chief examination
that Shri Natarajan husband of Sasikala had given Mrs.
Sasikala’s name as the PPF nominee and Shri Natarajan obtained
a scooter advance apart from a housing loan of Rs. 1,84,700/-
Shri Natarajan also obtained a car loan of Rs.80,000/- in the
year 1987. However on the cross examination held on 7-11-
2002 the witness of Shri R.Krishnamoorthy said that he did not
tender any evidence regarding the nomination of PPF account of
Shri Natarajan. The witness also said in his cross examination
that he did not know the dates on which Shri Natarajan applied
for Scooter loan or when he obtained the loan amount. The
witness went on to say that he did not know when Shri Natarajan
applied for housing loan and when it was sanctioned.
28 It is submitted that on 8-11-2002 P.W. 151 Mansoor
Ahamed was cross examined. On 11-11-2002 P.W. 148 Mohan
who is running the business of Automobile upholstery turned
hostile during his cross-examination. On 11-11-2002 itself
P.W.196 Hajaj Ahmed, a tailor who was entrusted with the task
of tailoring the marriage dress of the 5th Respondent herein/the
fourth accused was cross-examined. The fourth accused Shri
Sudhagaran is the sister’s son of the second accused Mrs.
Sasikala. On 12-11-2002 P.W. 184 a tourist car operator was
cross-examined. On the subsequent day of 13-11-2002 P.W.
147 Madan Lal, P.W. 186 Chalapathy Rao and P.W. 219
R.S.Usman were cross-examined. The trial stood adjourned to
18-11-2002. The Special Judge has ordered summons as per the
process list as prepared by the Special Court.
29. On 18.11.2002 five witnesses were recalled and cross-
examined by the Counsel for the accused. The five witnesses
who were examined on this date were P.W.127 Rajseshwari,
P.W.180 Suseela, P.W.143 Geethalakshmi, PW. 174 Mani and
P.W. 206 Abdul Jaffar. The Trial continued on 19-11-2002 and
two witnesses were examined. P.W.171 Abdul Razack, Village
Administrative Officer of Thiruthuraipoondi village was
examined on that date. The other witness who was examined on
the said day was P.W.234 Mohamed Asumathulla Hussain who
is Block Development Officer of Siruvathoor village in
Thiruporur Taluk. The next date of effective proceedings were
on 2-12-2002 on which date four more witnesses were
examined. They were P.W.183 Ramesh, P.W. 198 Jayaraman,
P.W. 216 Naziruddin and P.W.218 V.M. Somasundaram.
30. Similarly during the trial at the end of January 2003, P.W.
237 Shri S.S.Jawahar, I.A.S. formerly working as Deputy
Secretary who was examined as prosecution witness in the year
2000 was recalled at the instance of the Accused and was cross
examined. In that cross examination he has stated that what he
has deposed in the Chief Examination in the year 2000 was
under pressure. The Public Prosecutor has not taken any steps to
treat him hostile or to file any petition for perjury. So also
P.W.230 Shri N.V.Balaji, Auditor of some of the Accused
whose chief examination was over in the year 2000, on recall
has stated in the cross examination that the Accused had
enormous funds during the relevant period. His statement was
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made orally contrary to his deposition in chief examination,
unsupported by any Assessment returns or other documentary
evidence. Public Prosecutor has not disputed this nor put any
suggestion controverting the above statement.
31. On 3-2-2003 in the Crl.M.P.No.125 of 2003 filed on behalf
of Respondent No.4/Accused No.3 for recall of witnesses
Special Public Prosecutor made an endorsement that he had no
objection for allowing the petition. After recording the above
endorsement the Special Court allowed recall of witnesses for
cross examination by the Accused, who were all examined more
than 2 years back. Consequently on 4-2-2003 P.W.46 Shri
T.G.Gopinath, P.W.51 Shri Amarnath Mariacose, P.W.84 Shri
V.Ayyadurai, P.W.141 Shri M.Swaminathan and P.W.201 Shri
C.K.R.K.Vidhyasagar were summoned and cross-examined by
the Accused. All the above witnesses have stated that their
earlier deposition in Chief examination was given under
pressure. The Public Prosecutor has not made any effort to
declare them hostile and cross-examine them.
32. It is submitted that the act of recalling most of the witnesses
for the purpose of cross examination and the fact of some of the
witnesses turning hostile does not inspire confidence in the mind
of public that free and fair trial would be conducted by the
present prosecution. There is a genuine apprehension in the
mind of the public and that there is a real likelihood of bias, if
not a pronounced bias in the conduct of prosecution by the
prosecutor appointed by the AIADMK Government.
33. It is submitted that justice must not only be done but must
be seen to be done. Free and fair trial being the foundation of
criminal jurisprudence. There is prevalent apprehension in the
mind of the public at large that the trial is neither free nor fair
with the present prosecutor appointed by State Government
conducting the trial in a manner where frequently the
prosecution witnesses turn hostile especially during cross
examination. Recalling most of the witnesses for the purpose of
cross examination after the appointment of the Prosecutor
chosen by the 2nd Respondent Government and after a lapse of
several months itself creates a strong likelihood of official bias
in the conduct of prosecution when the Chief Minister of the
state is the first accused."
Counter on behalf of the second respondent has been filed. In fact
respondent nos. 3,4 and 5 have adopted the counter of respondent No.2.
Respondent No.3 has denied the correctness of the statement made by the
petitioner in respect of PW-126 R. Krishnamoorthy and PW-230 N.V.
Balaji. The rest of the statements contained in paragraphs 25 to 33 have not
been controverted. The second respondent has filed a detailed counter. In
the counter of the second respondent also the statements made in paragraphs
25 to 33 of the petition have not been controverted. Respondent No.1 has
also filed a detailed counter. In paragraph 8 of the said counter, it is stated
as under:-
"I submit that the petitioner has not appreciated the legal
concept of a "hostile witness", correctly. Accurate narration
has not been made by the petitioner, in so far as the instances
set out by him. The depositions of witnesses Mr.
Krishnamurthy and Mr. Balaji have not been accurately
summarised by him. I submit that the Investigating Agency and
the Prosecutor took a considered decision as to when they
should seek cross-examination of their own witnesses under
section 154 of the Evidence Act. If any aspect is to be clarified,
it is done by re-examination, which, in fact, was done in the
case of witness Balaji. In so far as witness Krishnamurthy was
concerned, he did not say that he has not tendered evidence
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regarding the nomination of the Provident Fund account of
Natarajan. He only stated that he did not tender any
documentary evidence."
It is undisputed that 76 witnesses have been recalled. Many of them
had earlier been cross-examined. On a question from Court we were
informed that the witnesses were recalled as Senior counsel for the second
Respondent had been busy attending to some other case filed against her
when they were first examined. This could hardly have been a ground for
recall of witnesses. The fact that the public prosecutor now appointed did not
object to such an application itself suggests that free and fair trial is not
going on. It appears that process of justice is being subverted. This gets
reinforced by the fact that even when witness after witness has resiled from
what they had stated in the evidence in chief, yet no steps have been taken
by the public prosecutor to resort to Section 154 of the Indian Evidence Act.
As already noticed, the second respondent became the Chief Minister in
May, 2001. The list of witnesses recalled and cross-examined after
14.5.2001 has been set out by the Petitioner in Annexure P-2 of the affidavit
of the petitioner. For brevity, we refer to few instances.
PW-98 Velayudham was examined in chief on 6.12.1999; cross-
examined by A1 and A2 on 6.12.1999; recalled and cross-examined on
18.12.2002; resiled from his previous statement. No re-examination and
not treated as hostile.
PW-116 Jayabal was examined in chief on 23.12.1999; cross-
examined by A1 on 6.1.2000 and 13.1.2000; re-examined on 13.1.2000;
recalled and cross-examined on 30.12.2002, 31.12.2002 and 2.1.2003 by A1,
A2 and A4; resiled from his previous statement. No re-examination and not
treated as hostile.
PW-126 Krishnamurthy was examined in chief on 10.2.2000 and
2.3.2000; recalled and cross-examined on 2.1.2003 and 23.1.2003; resiled
from his previous statement. No re-examination and not treated as hostile.
PW-129 Namasi was examined in chief and cross-examined on
9.3.2000; recalled and re-examined on 13.12.2002. No re-examination.
PW-130 Maran was examined in chief and cross-examined on
9.3.2000; recalled and cross-examined on 13.12.2002; resiled from his
previous statement. No re-examination and not treated as hostile.
PW-134 Rajendran was examined in chief and cross-examined on
12.4.2000. 18.4.2000. 25.4.2000 and 5.5.2000; recalled and cross-examined
on 6.1.2003; resiled from his previous statement. No re-examination and not
treated as hostile.
PW-135 Parthasarathy was examined in chief on 25.4.2000, 2.5.2000,
12.5.2000 and 17.5.2000; recalled and cross-examined on 6.1.2003 by A1,
A2 and A4; resiled from his previous statement. No re-examination and not
treated as hostile.
PW-155 Subburaj was examined in chief on 12.5.2000; recalled and
cross-examined on 22.1.2003 by A1, A2 and A4; resiled from his previous
statement. No re-examination and not treated as hostile.
We have cited only a few instances to show how the prosecution
appears to have acted hand in glove with the accused.
On examining the facts of this case, as adumbrated above, on the
touchstone of the decisions of this Court, as referred to above, the petitioner
has made out a case that the public confidence in the fairness of trial is being
seriously undermined. As revealed from the aforesaid recited facts, great
prejudice appear to have been caused to the prosecution which could
culminate in grave miscarriage of justice. The witnesses who had been
examined and cross-examined earlier should on such a flimsy ground never
have been recalled for cross-examination. The fact that it is done after the
second respondent assumed the power as the Chief Minister of the State and
the public prosecutor appointed by her government did not oppose and/or
give consent to application for recall of witnesses is indicative of how
judicial process is being subverted. The public prosecutor not resorting to
Section 154 of the Indian Evidence Act nor making any application to take
action in perjury taken against the witnesses also indicate that trial is not
proceeding fairly. It was the duty of the public prosecutor to have first
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strenuously opposed any application for recall and in any event to have
confronted witnesses with their statements recorded under Section 161 of
Cr.P.C. and their examination-in-chief. No attempt has been made to elicit
or find out whether witnesses were resiling because they are now under
pressure to do so. It does appear that the new public prosecutor is hand in
glove with the accused thereby creating a reasonable apprehension of
likelihood of failure of justice in the minds of the public at large. There is
strong indication that the process of justice is being subverted.
Free and fair trial is sine qua non of Article 21 of the Constitution. It
is trite law that justice should not only be done but it should be seen to have
been done. If the criminal trial is not free and fair and not free from bias,
judicial fairness and the criminal justice system would be at stake shaking
the confidence of the public in the system and woe would be the rule of law.
It is important to note that in such a case the question is not whether the
petitioner is actually biased but the question is whether the circumstances are
such that there is a reasonable apprehension in the mind of the petitioner. In
the present case, the circumstances as recited above are such as to create
reasonable apprehension in the minds of the public at large in general and
the petitioner in particular that there is every likelihood of failure of justice.
Mr.Venugopal, learned senior counsel for the respondent, contended
that merely because the witnesses were not declared hostile, would not
exclude or render unworthy of consideration the facts rendered by them in
their evidence-in-chief. He submitted that the Court can consider any part
of their testimony and can still believe and rely upon that part of testimony
which was given in the evidence in chief if that part of the deposition is
found to be creditworthy. According to Mr.Venugopal by not declaring the
PWs as hostile witnesses no prejudice has been caused to the prosecution
case. To buttress his contention reliance has been placed in Gura Singh
Vs. State of Rajasthan, (2001) 2 SCC 205, State of Bihar vs. Laloo
Prasad , (2002) 9 SCC 626 and Pandappa Hanumappa Hanamar Vs.
State of Karnataka (1997) 10 SCC 197. This Court in Laloo Prasad’s case
(supra) observed that it is open to the party who called the witness to seek
the permission of the Court as envisaged in Section 154 of the Evidence Act
at any stage of the examination and it is a discretion vested with the court
whether to grant the permission or not. It is further observed that normally
when the public prosecutor requested for the permission to put cross-
questions to a witness called by him the court used to grant it. It was further
pointed out that if the public prosecutor had sought permission at the end of
the chief examination itself the trial court would have no good reason for
declining the permission sought for. On a combined reading of the aforesaid
decisions of this Court, it emerges clearly that even in a criminal prosecution
when a witness is cross-examined and contradicted with the leave of the
court, by the party calling him, his evidence cannot, as a matter of law, be
treated as washed off the record altogether. It is for the Judge of fact to
consider in each case whether as a result of such cross-examination and
contradiction, the witness stands thoroughly discredited or can still be
believed in regard to a part of his testimony. If the Judge finds that in the
process, the credit of the witness has not been completely shaken, he may,
after reading and considering the evidence of the witness, as a whole, with
due caution and care, accept, in the light of other evidence on the record, that
part of his testimony which he finds to be creditworthy and act upon it.
The decisions by this court in the above referred cases are rendered in cases
where the public prosecutor seeks permission to question his own witnesses
by resorting to Section 154 of the Evidence Act and the court allowed the
public prosecutor to cross-examine his own witnesses, In such cases the trial
judge has discretionary power to examine the entire testimony and accept
that part of testimony which he finds to be creditworthy and act upon it. But
in the present case, the public prosecutor has not sought permission from the
court by resorting to Section 154 of the Evidence Act even though the
witnesses have resiled from their earlier testimony. In such a situation the
subsequent testimony of the witnesses remains uncontroverted. Just to take
an example, when the witness now states that his earlier evidence was given
under pressure and no attempt is made to cross-examine such a witness, the
Court may find it difficult if not impossible to accept the earlier statement.
The Trial Judge may find it difficult not to accept the subsequent testimony
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of the witness, which has remained uncontroverted. This causes great
prejudice to the prosecution culminating in great miscarriage of justice.
Mr. Andhyarujina, learned senior counsel for the petitioner, has
brought to our notice the manner in which the examination of 2nd respondent
under Section 313 is sought to be done, which according to him, is unknown
to the procedure established by law. The second respondent filed a criminal
M.P.No.230 of 2003 dated 24.2.2003 with the prayer to dispense with the
personal appearance and to permit her to answer the questionnaire through
the counsel, a copy of which is made available to us. It is averred in
paragraph 5 of the application that she has just returned from hectic election
campaign after a week’s tour of Thoothukudi District. She has further stated
that she is quite exhausted and laid up with fever and the doctor has advised
her complete rest for a few days. She is physically incapacitated to attend
the Court in person to fulfil the requirement of Section 313 Cr.P.C. The
physical hardship, which the applicant may undergo while answering the
questions, will further aggravate physical condition. In paragraph 6 she has
further stated that she is making the application not because of the position
she is holding but purely on the ground of physical condition. The public
prosecutor did not oppose the said application. In the aforesaid facts, the
trial court allowed the application by an order dated 24.2.2003. Be you
ever so high the law is above you. In our view, the grounds recited in the
application as referred to above, were not at all mitigating circumstances to
have granted dispensation of personal appearance. To say the least, that was
a ploy adopted to circumvent the due process of law. Mr. Venugopal has
drawn our attention to the decision of this Court rendered in Basavaraj R.
Patil Vs. State of Karnataka (2000) 8 SCC 740, where this Court
allowed the accused to dispense with personal appearance and make
application to the court praying that he may be allowed to answer the
questionnaire without making his physical appearance in court under the
conditions stipulated therein. That order was rendered in exceptional
exigency circumstances. The accused was in a far-away country - America
and he had to incur a whopping expenditure and undertake a tedious long
journey solely for the purpose of answering the court questions. This
authority makes it clear that the general rule remains that the accused must
answer the questions by personally remaining present in Court. It is only in
exceptional circumstances that the general rule can be departed/dispensed
with. In this case respondent No.2 is holding the position of the Chief
Minister of Tamil Nadu. She was available at Chennai. There was no
exceptional exigency or circumstances such as her having to undertake a
tedious long journey or incur a whopping expenditure to appear in Court to
answer the questions under Section 313 Cr.P.C. None of the facts, which
have weighed with the consideration of the Court in Basavaraj’s case
(supra), was available in the given case. The grounds given in her
application do not make out any case for granting exemption from
personally appearing to answer question under Section 313. The conduct of
the public prosecutor in not opposing such a frivolous application has to be
deprecated.
Lastly, it is contended by counsel for the respondents, that the
petitions seeking transfer of the cases have been filed belatedly and these
petitions deserve dismissal for laches and negligence of the petitioner.
Reliance was placed on the decision of this Court rendered in R.Balakrishna
Pillai Vs. State of Kerala, (2000) 7 SCC 129, where this Court dismissed
the petition on the ground that objection was raised four long years after
filing of the appeal and no objection was taken when the appeal was heard
by a Single Judge who referred the matter to a larger Bench. The facts of
that case are not applicable in the facts of the present case. As already
noticed, sequence of events leading to the filing of the petitions started on
7.11.2002. The present petitions were filed on 5.2.2003. We do not find
any delay and laches much less, inordinate delay, which would non-suit, the
petitioner.
In the result, we deem it expedient for the ends of justice to allow
these petitions. The only point that remains to be considered is now to
which State the cases should be transferred. We are of the view that for the
convenience of the parties the State of Karnataka would be most convenient
due to its nearness to Tamil Nadu. Accordingly, the petitions are allowed.
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CC No.7 of 1997 and CC No.2 of 2001 pending on the file of the XI Addl.
Sessions Judge (Special Court No.1) Chennai, in the State of Tamil Nadu
shall stand transferred with the following directions:-
(a) The State of Karnataka in consultation with the Chief
Justice of the High Court of Karnataka shall constitute a Special
court under the Prevention of Corruption Act, 1988 to whom
CC No.7 of 1997 and CC No.2 of 2001 pending on the file of
the XI Addl. Sessions Judge (Special Court No.1) Chennai in
the State of Tamil Nadu shall stand transferred. The Special
Court to have its sitting in Bangalore.
(b) As the matter is pending since 1997 the State of
Karnataka shall appoint Special Judge within a month from the
date of receipt of this Order and the trial before the Special
Judge shall commence as soon as possible and will then
proceed from day to day till completion.
(c) The State of Karnataka in consultation with the Chief
Justice of High Court of Karnataka shall appoint a senior
lawyer having experience in criminal trials as public prosecutor
to conduct these cases. The public prosecutor so appointed
shall be entitled to assistance of another lawyer of his choice.
The fees and all other expenses of the Public Prosecutor and the
Assistant shall be paid by the State of Karnataka who will
thereafter be entitled to get the same reimbursed from the State
of Tamil Nadu. The Public Prosecutor to be appointed within
six weeks from today.
(d) The investigating agency is directed to render all
assistance to the public prosecutor and his assistant.
(e) The Special Judge so appointed to proceed with the cases
from such stage as he deems fit and proper and in accordance
with law.
(f) The Public Prosecutor will be at liberty to apply that the
witnesses who have been recalled and cross-examined by the
accused and who have resiled from their previous statement,
may be again recalled. The public prosecutor would be at
liberty to apply to the court to have these witnesses declared
hostile and to seek permission to cross-examine them. Any
such application if made to the Special court shall be allowed.
The public prosecutor will also be at liberty to apply that action
in perjury to be taken against some or all such witnesses. Any
such application/s will be undoubtedly considered on its
merit/s.
(g) The State of Tamil Nadu shall ensure that all documents
and records are forthwith transferred to the Special Court on its
constitution. The State of Tamil Nadu shall also ensure that the
witnesses are produced before the Special Court whenever they
are required to attend that Court.
(h) In case any witness asks for protection the State of
Karnataka shall provide protection to that witness.
(i) The Special Judge shall after completion of evidence put
to all the accused all relevant evidence and documents
appearing against them whilst recording their statement under
Section 313. All the accused shall personally appear in Court,
on the day they are called upon to do so, for answering
questions under Section 313, Criminal Procedure Code.
These Petitions are allowed in the above terms.
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