Full Judgment Text
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CASE NO.:
Transfer Petition (crl.) 183 of 1999
Transfer Petition (crl.) 26 of 2000
PETITIONER:
ABDUL NAZAR MADANI
Vs.
RESPONDENT:
VS.
DATE OF JUDGMENT: 05/05/2000
BENCH:
K.T. Thomas & R.P. Sethi.
JUDGMENT:
SETHI,J.
L...I...T.......T.......T.......T.......T.......T.......T..J
Being some of the accused along with 152 others involved
in what is popularly known as Coimbatore-Bomb Blast Case,
the petitioners have prayed for the transfer of case PRC
No.54 of 1998 pending in the Court of FCJ Magistrate Court,
Coimbatore, Tamil Nadu entitled State vs. Abdul Nazir
Madani and others to any Sessions Court in the State of
Kerala allegedly on the ground of there being no possibility
of fair trial in the State of Tamil Nadu. It is alleged
that in the State of Tamil Nadu both Hindu and Muslim
fundamentalists are inciting trouble which has surcharged
the communal atmosphere in that State making the conduct of
the fair trial impossible. It is apprehended that the
witnesses will not be in a position to give evidence without
fear or favour. The petitioner Abdul Nazar Madani has
referred to some attack on him by RSS Cadres during August,
1992 as a consequence of which he sustained injuries which
ultimately resulted in the imputation of his right leg. He
has two children aged four and one year old and a wife from
a very poor family. He claims to be the founder of Al-amwar
islamic Madrass and Orphanage in Kollam District in Kerala
where about 280 orphans are stated to be studying for whose
day to day expenses an amount of Rs.2050/- is required which
is not possible to procure in his absence. He has further
claimed to be the leader of an organisation named "Islamic
Seva Sangh" which, according to him, was a social and
cultural organisation. The said organisation is stated to
have been declared as unlawful organisation in the State of
Kerala after the demolition of Babri Masjid. Thereafter the
said petitioner is stated to have organised a party named
Peoples Democratic Party. He submits that there exists a
feeling generally in Tamilnadu, Chennai and Coimbatore that
the petitioner was an ISI (Pakistani Intelligence Service)
agent who was responsible for the bomb blasts in the city of
Coimbatore in Tamilnadu. It is alleged that a popular
opinion appears to have been formed that no patriotic lawyer
from Tamilnadu would appear and plead the case of the
petitioners, as they thought it as anti-national and due to
intimidation by the Police Intelligence Wing, lawyers are
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not willing to take up their briefs. On their behalf some
advocates from Kerala are stated to have visited Coimbatore
and Chennai with a request to local lawyers there to
cooperate with the petitioners and conduct their cases but
all of them are stated to have refused. It is submitted
that being a well known political leader in the State of
Kerala, the respondents have falsely implicated petitioner
Madani, with others in the criminal cases.
In the counter affidavit filed on behalf of the
respondents it is submitted that the petitioners along with@@
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others are involved in Coimbatore B-1 Bazar Police Station@@
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CR No.151 of 1998 under Sections 120B, 302, 307, 449, 465,
468, 471, 212, 153A(1), 148, 149, 201, 109, 114 and 353 IPC,
Sections 3, 4 (b), 5, 6 of the Explosive Substances Act,
1908, Section 25(1-B)(a) of the Arms Act, 1959 and Section 4
of the Tamil Nadu Property (Prevention of Damage and Loss)
Act, 1992. The petitioner, Madani is stated to be the prime
accused concerned in the Serial Bomb Blast Case of
Coimbatore. It is alleged that on 14.2.1998 at about 4 p.m.
when Shri L.K. Advani, the then President of Bhartiya Janta
Party was to address election meeting at RS Puram,
Coimbatore City, the whole of the city and its suburbs were
hit by a series of 12 powerful bomb blasts killing 47
persons and injuring 218 persons apart from causing
extensive damage to the properties owned primarily by a
particular section of the society. The high intensity
bombs/Improvised Explosive Devices (IEDs) exploded all over
the city and its suburbs including near the venue of the
public meeting. The bomb blasts were targeted at some
specified congregations and their establishments. Shri L.K.
Advani was planned to be targeted by Suicide Squad members
armed with "instantaneous-type bombs" tied to their waists
and "throw-type bombs", which, however, could not
materialise since neither the members of the suicide squad
charged with the task could penetrate the police cardon and
reach near the public meeting place, nor Shri Advani was
available at the targeted place at the scheduled time due to
delay of his flight. The blasts had been planned and
executed by the muslim fundamentalists organisation named
"Al-Umma" headed by S.A. Basha, co- accused No.1 in the
case allegedly as a brutal answer/retaliation to the killing
of 18 muslims in communal riots and police firing and
extensive damages to the muslim properties following the
stabbing to death of a Traffic Police Constable Selvaraj at
Ukkadam, Coimbatore on 29.11.1997. There were some other
bomb blasts resulting in total the death of 58 persons
besides injuring 250 persons. Private and public properties
to the tune of Rs.4.37 crores is also stated to have been
damaged. The petitioner Madani has admitted to be the
founder leader of Islamic Seva Sangh and presently the
leader of Peoples Democratic party. He was arrested at
Kozhikode on 31.3.1998 in connection with Kozhikode Kasba PS
Cr.No.103/92 u/s 153-A and B IPC and in the case in
Cr.No.62/98 under Section 120(B) 212 IPC and under Section 3
read with Section 25(1)(a) Arms Act, 1959 and was remanded
to judicial custody and lodged in Central Prison, Cannanore,
Kerala State. His involvement in the Coimbatore Series Bomb
Blast case came to light from the alleged confession
statement made by accused Tajudeen @ Abu Mujahith, Accused
No.3 on 26th March, 1988. Other accused persons were
arrested from different places on different dates.
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Regarding allegations of the petitioners which have been
made basis for seeking transfer, the respondents have
submitted that it was not correct to state that there
existed feelings in Tamil Nadu in general or in Chennai and
Coimbature in particular, that no patriotic lawyer would
appear and plead for any of the accused persons in the Bomb
Blast cases. The submission of the petitioners is alleged
to be illusory. Advocates from Chennai, Vijayawada and
Coimbatore are stated to have already appeared for the
accused in the courts at Coimbature and also before the High
Court of Judicature at Chennai. A list of such advocates
has been annexed with the counter affidavit as Annexure A.
Regarding the existence of an alleged surcharged communal
atmosphere, it is submitted that there is presently no
communal tension in Tamil Nadu as communal harmony is
maintained in the State. The situation which was created in
the aftermath of series bomb blasts in February, 1998 has
since been completely defused and normalised due to the
strong measures taken by the fair and firm investigagion of
the case and by the law and order machinery. The atmosphere
in the State is stated to be peaceful and the trial is
assured to be conducted peacefully and smoothly.
The submission of the petitioners that they will not get
any assistance of lawyers of their choice due to rivalry of
religious fundamentalists is false and concocted,
deliberately put as a ground to stall and delay the progress
of the case. The proposed transfer would cause
inconvenience not only to the prosecution but also other co-
accused persons. Most of the witnesses are in Tamil Nadu
and to ensure the speedy trial of the case the prayer of the
petitioner is liable to be rejected. We have heard the
learned counsel for the parties and perused the records.
Appearing for the respondents Shri V.R. Reddy, learned
Senior Counsel has brought to our notice that charge-sheet
had been laid against 181 accused persons out of whom 8 have
died and 5 are still at large. Remaining 168 accused are
lodged in various prisons in the State of Tamil Nadu. Out
of 168 accused persons 154 are from Coimbatore, 7 from
Kerala 2 from Karnataka and 2 from Andhra Pradesh. Total
number of witnesses which are likely to be produced are 2333
out of whom 2083 are Tamil speaking witnesses. The
Government has constituted a special court exclusively for
the speedy trial of this case. Remodelling of the building
adjacent to the Central Prison, Coimbatore with the object
of accommodating the special court was completed in January,
2000 at a cost of Rs.22.40 lacs. Final report under Section
173 Cr.P.C. consisting of statements and documents which
runs into 16480 pages in Tamil has been submitted. Total
copies running into 37 lakh pages have been made and
supplied to the accused persons on 27th March, 2000. Shri
Thanikachalam, the Special Judge has taken charge on
7.4.2000. The learned counsel has also shown us the sketch
regarding the location of the Central Prison and the special
court specially constituted for the trial of bomb blast case
along with photographs of the specially made cells where all
the accused persons are intended to be accommodated during
the trial of the case. Dr.Singhvi, the learned senior
counsel appearing for the petitioner has drawn our attention
to various averments made in the petition particularly in
paras 16, 17 and 25 to urge that in view of existing
surcharged atmosphere it was not possible to have a fair
trial of the accused persons in the State of Tamil Nadu. In
the alternative he has submitted that if the transfer of the
case from the State of Tamil Nadu is not possible, the same
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be transferred to any court at Chennai, Thirunalveli, Salem
in the State of Tamil Nadu. Relying upon G.X Francis &
Ors.v. Banke Bihari Singh & Anr.[AIR 1958 SC 309], he has
argued that in view of the surcharged communal tension in
the area, the local atmosphere not being conducive to fair
and impartial trial, there existed good ground for the
transfer of the case to another State. In support of his
submissions he has referred to Annexure P-3, proceedings of
the Commissioner of Police, Coimbatore City which is an
order passed under the National Security Act dated 7.7.1998.
Relying upon the averments made therein to the effect that
"Coimbatore City has become a communally hypersensitive
place in the recent years in view of the communal riots. On
29.11.1997 at Ukkadam Traffic Point, Selvaraj, a Traffic
Police Constable on duty was brutally murdered by the muslim
youths belonging to Al-Umma. This resulted in the outburst
of a major communal harmony", the learned counsel has
submitted that in the interests of justice and for fair
trial of the case, the prayer made in the petition is
justified. 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 of
the 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. In G.X. Francis’s case (supra)
this Court felt that where public confidence in the fairness
of the trial is likely to be seriously undermined under the
circumstances of the case, transfer petition could be
allowed. On finding that "there is uniformity of testimony
from both sides about the nature of surcharged communal
tension in that area", the Court found that the local
atmosphere was not conducive to a fair and impartial trial
which justified a good ground for transfer. The court
rejected the contention of the petitioner therein regarding
the wild allegations made to the effect that no court in the
State of M.P. would be unbiased or impartial for dispensing
justice. In the peculiar facts and circumstances of the
case, the trial was transferred to an adjoining court. The
mere existence of a surcharged atmosphere without there
being proof of inability for holding fair and impartial
trial cannot be made a ground for transfer of a case.
Alleged communally surcharged atmosphere has to be
considered in the light of the accusations made and the
nature of the crime committed by the accused seeking
transfer of his case. It will be unsafe to hold that as and
when accusations are made regarding the existence of a
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surcharged communal atmosphere, the case should be
transferred from the area where existence of such surcharged
atmosphere is alleged. This Court had not concluded so
generally in Francis’s case as has been argued before us on
behalf of the petitioner.
On facts also we find that petitioners in the instant
case have made wild and general allegations of the
surcharged atmosphere against a particular community of the
society in the whole of the State of Tamil Nadu. We are of
the opinion that in a secular, democratic country governed
by the rule of law, the appropriate State Government is
responsible for ensuring free, fair and impartial trial to
the accused notwithstanding the nature of accusations made
against them. Nothing has been placed on record nor was it
possible to allege that the whole of the State of Tamil Nadu
has become a communal State which cannot ensure a free, fair
and impartial trial against the petitioners. If such a
situation is shown to be existing, the State Government has
no constitutional and moral right to rule the State as it
would amount to perpetuating the continuance of a Government
against the provisions of the Constitution which ensures and
guarantees of a secular, democratic system of governance.
The respondent have very emphatically submitted and we have
no reason to doubt that the atmosphere in the State is not
communally surcharged to the extent that holding of criminal
trial against the petitioners and others is not possible in
any part of the State. Even if some communal tension is
shown to be in existence as perhaps is likely to be in view
of the nature of offence committed and the accusations made
against the petitioner and other accused persons, it is the
obligation of the State Government to ensure the safety and
security of the accused persons to stand free and impartial
trial. It is true that in the detention order dated
7.7.1998 against the petitioner, the Commissioner of Police
has mentioned that on account of the communal riots the
Coimbatore City had become communally hypersensitive but
those averments cannot be stretched to hold firstly that the
whole State of Tamil Nadu has become communally surcharged
and secondly that Coimbatore City itself continues to be so
communally hypersensitive till date that the trial against
the petitioners and other accused persons is not likely to
be free, fair and impartial. In the counter affidavit the
respondents have specifically stated:
"With regard to the averments in Ground (A) of the
petition, it is submitted that it is not correct to state
that the communal tension is prevailing in the State of
Tamil Nadu and both Muslim and Hindu fundamentalist are
inciting troubles which will lead to communal tension is
presently no communal tension in Tamil Nadu and communal
harmony is maintained in the State. The situation that was
created in the aftermath of the serial bomb blasts of
February, 1998, has been since completely defused and
normalised due to the strong measures taken by the fair and
firm investigation of the case and by the Law & Order
machinery. The atmosphere in the State is peaceful. Hence
the trial will be conducted peacefully and smoothly."
After perusing Annexure A we do not find any substance
in the submission of the petitioners that as they and other
accused persons are not likely to get proper legal
assistance, the case should be transferred to some other
State. We are also satisfied that the petitioners and other
accused are adequately represented in the court and even if
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not, they can get the legal services from Palghat in Kerala
where they want the case to be transferred. It may be
noticed that Palghat is approximately 40 kilometers from
Coimbatore and it is not difficult for any number of
advocates to travel or stay at Coimbatore during the conduct
of the trial. We are sure that if any advocate from outside
the State of Tamil Nadu appears for any of the accused, the
State Government shall provide him appropriate security to
ensure him the discharge of his professional obligation
towards the accused persons facing the trial in the case
filed against them.
Dr.Singhvi, the learned counsel appearing for the
petitioners alternatively submitted that even if this Court
does not find any ground to transfer the case of the
petitioner from the State of Tamil Nadu to any other State,
particularly the State of Kerala, the trial of the case be
ordered to be conducted at some other place in the State of
Tamil Nadu preferably at Chennai, Thirunalveli or Salem. We
are not satisfied with this submission also as we are of the
opinion that at present there exists conducive atmosphere at
Coimbatore where free, fair and impartial trial is possible
to be conducted against the accused persons. This Court
cannot loose sight of the fact that despite the petitioners
there are 152 other accused persons out of which more than
150 are from Coimbatore and the State Government have made
elaborate arrangements for their stay in the Central Prison,
Coimbatore by making provision of having specified cells for
the accused persons. We cannot forget the expenses of
Rs.22.40 lacs incurred by the State Government for re-
modelling the building adjacent to the Central Prison to
accommodate the special court for which even a judicial
officer has been appointed who is stated to have taken
charge on 7.4.2000. Lakhs of rupees are shown to have been
spent for the conduct of smooth, speedy, fair and impartial
trial. The transfer of the case, at this stage, is not only
against the interests of the prosecution but also against
the interests of the other accused persons, the prosecution
witnesses and the convenience of all concerned in the
matter. We are satisfied that a fair and speedy trial of
the case is possible at Coimbatore and the accused persons
including the petitioners need not have any cause for
apprehension.
In this regard we have also perused the figures
furnished to us showing the authorised accommodation and the
actual population in the lock-ups in the State of Tamil
Nadu. Whereas in Coimbatore Central Prison the authorised
accommodation is for 2208 persons and the present lock-up
strength is only 1998. In Chennai the position is otherwise
as against authorised accommodation of 1419 persons 1765
have been and are being accommodated. We cannot loose sight
of the statement made on behalf of the respondents that in
Coimbatore Central Prison separate cells have been renovated
for accommodation of 168 accused persons in the instant case
and such a facility is not available elsewhere in any other
prison in that State.
The present petitions which are totally misconceived are
hereby dismissed with a direction to the trial court to
expedite the trial and if possible hold the same on day to
day basis so that cause of justice is achieved without any
further delay.
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