Full Judgment Text
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CASE NO.:
Transfer Petition (crl.) 134 of 2005
PETITIONER:
Sri Jayendra Saraswathy Swamigal,Tamil Nadu
RESPONDENT:
State of Tamil Nadu and others
DATE OF JUDGMENT: 26/10/2005
BENCH:
CJI R.C. Lahoti & G.P. Mathur
JUDGMENT:
J U D G M E N T
G.P. Mathur,J.
This petition has been filed by Jayendra Saraswathy Swamigal,
Sankaracharya of Kanchi Kamakoti Peetam under Section 406 Cr.P.C.
seeking transfer of Sessions Case No. 197 of 2005 pending before the
Principal Sessions Court, Chenglepet, to any other State, out side the
State of Tamil Nadu. The respondents arrayed in the Transfer
Petition are (1) State of Tamil Nadu, (2) Director General of Police,
Tamil Nadu, (3) Shri Prem Kumar, Superintendent of Police, Head of
the Special Investigation Team (SIT), (4) Shri S.P. Sakthivel, Chief
Investigating Officer, SIT, besides respondent Nos. 5 to 28, who are
co-accused in the case. Except for respondent No. 5, P. Subramaniam
@ Ravi Subramaniam, who has been granted pardon and has turned
approver, the remaining co-accused, namely, respondent Nos. 6 to 28
are supporting the prayer for transfer of the case and some of them
have filed affidavits in that regard.
2. An FIR was lodged at 7.00 p.m. on 3.9.2004 at Police Station
B-2, Vishnu Kanchi by Shri N.S. Ganesan. It was stated therein that
at about 5.45 p.m. on 3.9.2004 while he was in the office of
Devarajaswamy Devasthanam, two persons armed with aruval came
there and caused multiple injuries to Sankararaman, In-charge
Administrative Manager, who was sitting on a chair. Four persons
were waiting outside and the assailants escaped on their motorcycles.
After the case was registered, necessary investigation followed and
several persons were arrested.
3. According to the case of the prosecution, the petitioner had
entered into a conspiracy with some other co-accused for getting
Sankararaman murdered. The motive for the commission of the crime
is said to be various complaints alleged to have been made by the
deceased levelling serious allegations, both against the personal
character of the petitioner and also his style of functioning as
Shankaracharya of the Mutt. The petitioner was arrested on
11.11.2004 from Mehboobnagar in Andhra Pradesh. He filed a bail
petition before the High Court of Madras, which was rejected on
20.11.2004 and the second petition was rejected on 8.12.2004.
Thereafter, the petitioner filed Special Leave Petition (Crl.) No. 6192
of 2004, which was allowed by this Court on 10.1.2005 and he was
granted bail. The very next day, i.e., on 11.1.2005 Vijayendra
Saraswati Swamigal (respondent No. 6), who is the junior
Sankaracharya, was arrested. According to the custom and tradition
of the Mutt, he would succeed the petitioner.
4. After completion of investigation the police submitted a charge-
sheet against all the 24 accused in the Court of Judicial Magistrate,
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Kanchipuram on 21.1.2005, which was registered as Preliminary
Registered Case (PRC) No. 2 of 2005 and committal proceedings took
place and finally the case was committed to the Court of Sessions
where it has been registered as S.C. No. 197 of 2005.
5. The transfer of the case has been sought on several grounds and
basically speaking they are as under: -
i) The State machinery in Tamil Nadu and specially the Special
Investigation Team headed by Shri Prem Kumar,
Superintendent of Police, has shown great zeal and has made
extraordinary efforts, much beyond what is required under the
law to anyhow secure the conviction of the accused and to
achieve that object has procured and fabricated false evidence.
ii) The Chief Minister of the State of Tamil Nadu, who is also
holding the Home portfolio, has made statements on the floor of
the House that the petitioner and the other co-accused are
actually involved in the murder of Sankararaman and has also
given some press statements and has thereby pre-empted a fair
decision in the criminal trial, as statements of persons holding
such high offices and specially those made on the floor of the
House, are generally believed to be correct and thus the accused
stand condemned even before the commencement of the trial.
iii) A solatium of Rs.5.00 lakhs was paid by the Chief Minister of
Tamil Nadu to Padma Sankararaman (widow of deceased
Sankararaman) on 24.11.2004, long before completion of
investigation and submission of charge-sheet, and, this was
given wide publicity in the electronic media and newspapers
etc., which shows that the State Government is taking special
interest in the case and is too keen to secure conviction of the
accused in order to justify the stand taken by it.
iv) Concocted and false cases have been registered against 16 co-
accused. Even before their bail applications in the present case
could be heard, detention orders were passed against them
under the Tamil Nadu Prevention of Dangerous Activities of
Bootleggers, Drug Offenders, Forest Offenders, Goondas,
Immoral Traffic Offenders, Slum Grabbers and Video Pirates
Act, 1982 (for short "Goondas Act") between 16.1.2005 and
6.2.2005 so that even after grant of bail by the court they may
remain in custody.
v) The advocates appearing for the petitioner and other co-accused
have been put under great threat on account of lodging of false
and fabricated criminal cases against them and a situation has
been created wherein they may not be in a position to defend
the accused properly. This will also have a general affect as
other lawyers would feel hesitant to conduct the case on behalf
of the accused.
vi) The Mutt and other associated and connected trusts have 183
accounts in banks, which were all frozen by the SIT resulting in
paralyzing the religious and other activities of the Mutt and
other connected bodies.
vii) Criminal cases have been lodged against some leading
journalists of the country and other prominent personalities,
who had written articles criticizing the arrest of the petitioner,
which not only violates right of free speech but also creates an
atmosphere of threat against anyone daring to speak or write in
favour of the accused and thus the accused seriously apprehend
that they would not get a fair trial in the State of Tamil Nadu.
viii) Shri Prem Kumar, who is heading the Special Investigating
Team, is not a fair and upright officer and superior courts have
passed strictures against him several times in the past for his
uncalled for actions in going out of the way to implicate
innocent persons in criminal cases.
6. In reply to the Transfer Petition three sets of counter affidavits
have been filed, one on behalf of the State of Tamil Nadu and its
Director General of Police, second by Shri Prem Kumar, Head of SIT,
who has been impleaded as respondent No. 3 and the third by P.
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Subramaniam @ Ravi Subramaniam, co-accused, who has been
granted pardon and has turned approver in the case. A detailed
rejoinder affidavit has been filed by the petitioner and some other
affidavits have also been filed to which we will make reference at the
appropriate stage.
7. We have heard Shri F.S. Nariman, learned senior counsel for
the petitioner, Shri Ashok Desai, learned senior counsel, who has
appeared for respondent No. 6 Vijayendra Saraswati Swamigal (junior
Shankaracharya) and Shri G.L. Sanghi, learned senior counsel for
respondent No. 8. We have also heard Dr. Rajeev Dhavan, learned
senior counsel, who has appeared for respondent Nos. 1 and 2, Shri
Shanti Bhushan, learned senior counsel, who has appeared for
respondent No. 5 Ravi Subramaniam (approver) and Ms. Indira
Jaisingh, who has appeared for Padma Sankararaman (widow of the
deceased), though she had not been arrayed as party to the Transfer
Petition.
8. The contention raised on the basis of the statements made by
the Chief Minister on the floor of the House does not impress us. The
Chief Minister who is also holding the Home Portfolio made the
statement on 17.11.2004 and also gave a Press statement on
1.12.2004. She merely stated that the investigation has revealed the
involvement of the petitioner Jayendra Saraswathy in the
Shankararaman murder case. The investigating agency has come out
with a case that the petitioner had entered into a conspiracy with some
other co-accused in getting Shankararaman murdered. The petitioner
had already been arrested earlier on 11.11.2004. The arrest of the
petitioner had generated lot of publicity and in such circumstances no
exception can be taken to the statement made by the Chief Minister on
the floor of the House. We are, therefore, of the opinion that the
petitioner or other co-accused cannot raise any grievance on the basis
of the aforesaid statement of the Chief Minister and it cannot be a
ground for transferring the case to another State.
9. We will now take up the issue regarding availability of counsel
to the accused and conduct of their cases by lawyers in a free
atmosphere without any threat or fear, so that their defence may not
go by default. The petitioner has engaged Shri K.S. Dinakaran, who
is 67 years of age and is a very senior counsel having put in 43 years
of practice. Besides him Shri A. Shanmugam, who has a standing of
27 years at the Bar and some other lawyers are also appearing for him.
Shri Shanmugam has filed an affidavit in this Court on 27.4.2005,
which was sworn on 18.4.2005. It is averred therein that the copy of
the charge-sheet, which is a long document and runs into 1873 pages,
was given to the accused on 31.3.2005 and on the same day the
prosecution sought to examine Ravi Subramaniam (approver) before
the Court of Judicial Magistrate, who had taken cognizance of the
offence and was holding committal proceedings. An application was
then moved on behalf of the petitioner praying for permission to
cross-examine Ravi Subramaniam in case his statement was recorded
and for this purpose some time was sought in order to go through all
the documents contained in the charge-sheet. The learned Magistrate
fixed 4.4.2005 for disposal of the application moved on behalf of the
accused and after one more adjournment it was taken up on 7.4.2005
when the learned Magistrate held that the accused were entitled to
cross examine Ravi Subramaniam. However, the prayer made on
behalf of the accused to furnish copy of the video and audio cassettes,
which are mentioned in the charge-sheet, was rejected. The
examination-in-chief of Ravi Subramaniam commenced on 7.4.2005
which could not be completed on that day and the case was adjourned
to 8.4.2005 and thereafter to 11.4.2005. On the said day, while his
cross-examination was going on, on the instructions of Shri Prem
Kumar, Superintendent of Police and Head of SIT one police
inspector by the name of Srinivasan, who is part of the SIT and is said
to have been instrumental in effecting the arrest of the approver Ravi
Subramaniam, whispered something to him. Immediately thereafter,
Ravi Subramaniam of his own volunteered and made a statement that
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Shri K.S. Dinakaran, senior counsel who is appearing for the
petitioner, had met his wife Smt. Chitra at his house and had
threatened her that he (Ravi Subramaniam) should not give any
statement against the petitioner. This conduct of Shri Prem Kumar
and inspector Srinivasan of prompting the witness to make a statement
against the senior counsel Shri Dinakaran was strongly objected to by
the defence lawyers and they expressed their anguish in the manner in
which the police was going out of its way in making insinuations and
securing statement of witnesses against the defence lawyers. On the
objection being taken by the defence lawyers the learned Judicial
Magistrate, who had witnessed the entire incident, asked the inspector
Srinivasan to leave the court. He also declined to record the aforesaid
statement made by Ravi Subramaniam wherein he had said that Shri
K.S. Dinakaran had gone to his house and had threatened his wife.
Shri K.S. Dinakaran, in his letter dated 23.9.2005 sent to Shri Krishna
Kumar, Advocate on Record for the petitioner in the Supreme Court
(copy of which has been placed on record), has mentioned that the
said incident did take place in the court of learned Judicial Magistrate
on 11.4.2005 and the affidavit filed by Shri A. Shanmugam,
Advocate, wherein the aforesaid incident had been narrated, is correct.
The allegation made against him by Ravi Subramaniam at the instance
of Shri Prem Kumar and on the whispering made to him by inspector
Srinivasan are false, frivolous and vexatious, apart from being
motivated and he had never met the wife of Ravi Subramaniam at any
time. He has also written that this is an attempt to demoralize and
scare him by scandalizing his reputation and casting slur on his
character and conduct. In the counter affidavit filed on behalf of the
State it is stated in paragraph 15(vi) that Ravi Subramaniam had
himself made a voluntary statement to the effect that Shri K.S.
Dinakaran had met his wife at his house and had threatened her.
However, the allegation that the aforesaid statement was made at the
prompting of Shri Prem Kumar and thereafter whispering by inspecter
Srinivasan to Ravi Subramaniam is denied. It is also denied that the
learned Magistrate asked Srinivasan to leave the court. Shri Prem
Kumar has given exactly similar version of the incident in paragraph 9
of his counter affidavit, namely, that Ravi Subramaniam made a
voluntary statement that Shri K.S. Dinakaran had met his wife at his
house and had threatened her and further that the said statement was
not made either on his prompting or on the whispering of Srinivasan.
It is important to note that in the statement of Ravi Subramaniam, as
recorded in the court of Judicial Magistrate on 11.4.2005, the sentence
that "Shri K.S. Dinakaran had met his wife at his house and had
threatened her" does not find place. This, therefore, establishes the
correctness of the version of the incident given by Shri A.
Shanmugam in his affidavit and also by Shri K.S. Dinakaran,
advocate in his letter, namely, that the aforesaid statement was given
by Ravi Subramaniam at the prompting of Shri Prem Kumar and then
whispering done by inspector Srinivasan to the witness and as a result
of the objection raised by the defence lawyers the learned Magistrate
declined to record the said part of the statement of the witness. This
conduct of the prosecution machinery in prompting the witness to
make a totally false allegation against a very senior counsel appearing
for the defence is hound to demoralize and scare him and he cannot
perform his duty of conducting the case in a fearless and proper
manner. No lawyer would like to get associated with a case where a
slur is made on his character and conduct and the reputation, which he
has earned by maintaining high professional standards for a long
period, is sought to be damaged. Any dignified lawyer would not
agree to conduct a case on behalf of the accused in such an
atmosphere and even if he does so, he would not be able to discharge
his duties properly on account of threat to his personal reputation.
This is bound to result in miscarriage of justice for the accused.
10. There is some other material to show threat to lawyers. One
Mrs. Revathy Vasudevan is an advocate practicing at Kanchipuram
and she is junior of Shri A. Shanmugam, Advocate. Another lady
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lawyer Mrs. Nadhira Banu is also practicing at Kanchipuram and is
junior of Shri Y. Thiagarajan. Shri A. Shanmugam and Shri Y.
Thiagarajan are appearing as counsel for the accused. Mrs. Revathy
Vasudevan has been appointed by the Chairman, Legal Aid Service
Authority as counsel to assist prisoners, who may be on remand and
want to avail the services of a legal aid counsel. Mrs. Nadhira Banu
has been appointed as a counsel for visiting the sub-jail, Kanchipuram
and providing legal assistance from Legal Services Authority to under
trial prisoners, who want to seek legal aid. On 19.2.2005 Smt. Chitra
wife of Ravi Subramaniam (approver) lodged an FIR at B-1
Sivakanchi Police Station, alleging that she had visited the
Kanchipuram sub-jail on the said date as she had come to know
through newspaper reports that her husband had been arrested in
connection with the Sankararaman murder case by the police and has
turned as approver and is lodged at Kanchipuram sub-jail. When she
met her husband, he told her that on 1.2.2005 and 9.2.2005 two lady
advocates, namely, Revathy and Nathira Banu met him in the jail and
asked him not to give any statement or evidence against the
Shankaracharya and for this purpose he would be given huge sum of
money and if he did not abide by their advice he would be killed when
he would come out of the jail. He also told her that this threat was
given to him by the lady lawyers as per the directions of Jayendra
Saraswathi Swamigal (petitioner herein) and two advocates, viz., Shri
Shanmugam and Shri Thiyagarajan. On the basis of the aforesaid
report a case was registered as Crime No. 127 of 2005 under Section
201 read with Section 109, 213E, 506(2) IPC at Sivakanchi Police
Station. It is noteworthy to mention here that in his confessional
statement, which was recorded under Section 164 Cr.P.C. on
31.12.2004 before the Chief Judicial Magistrate, Chenglepet, Ravi
Subramaniam had stated that his relations with his wife were strained
for over ten years. Shri A. Shanmugam, advocate, apprehending that
the FIR lodged by Smt. Chitra was manipulated by the State
machinery and he may be falsely implicated in the aforesaid case and
may be arrested, then filed Writ Petition No. 6407 of 2005 (A.
Shanmugham vs. State of Tamil Nadu and others) in the High Court
of Madras praying for a writ of mandamus for transferring the
investigation of case Crime No. 127 of 2005 from the local police to
CBI. The writ petition was disposed of on 15.3.2005 by the following
order: -
"The learned Public Prosecutor states that no proceedings
are contemplated against the writ petitioner Mr. A.
Shanmugham. Therefore, nothing further survives in the
writ petition. The writ petition is disposed of
accordingly. Consequently, the connected W.P.M.P. No.
6990 of 2005 is closed."
11. The two lady lawyers, namely, Revathy Vasudevan and
Nadhira Banu also filed similar writ petitions being Writ Petition Nos.
19146 of 2005 and 19147 of 2005 praying that a writ of mandamus be
issued directing the transfer of investigation of case Crime No. 127 of
2005 registered against them from the local police to the CBI. The
local police, however, acted with considerable speed and submitted a
charge-sheet on 17.6.2005 against both the lady lawyers under
Sections 451, 214 IPC read with Sections 109, 201, 506 (2) IPC and a
case was registered on the file of Judicial Magistrate No. I,
Kanchipuram being PRC No. 3 of 2005. The writ petitions were
disposed of on 24.6.2005 and paragraphs 1, 5, 6 and 7 of the order
passed by the High Court are being reproduced below: -
"1. Petitioners herein are practicing Women Lawyers
at Kancheepuram and both of them are in the panel of
Taluk Legal Services Committee, Kancheepuram.
Misconstruing their visit to the sub-jail on 1.2.2005 and
9.2.2005 as though they had attempted to induce one
Ravisubramaniam, an accused in the sensitive criminal
case, namely, Sankararaman murder case, in crime No.
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914 of 2004 on the file of Vishnu Kanchi Police Station
and now pending as S.C. No. 197 of 2005 on the file of
District and Sessions Court, Chingleput, to resile from
his earlier statement made against the co-accused in the
said case, a case was registered against both the
petitioners in crime No. 127 of 2005 for the offences
punishable under Sections 201 read with 109, 213, 451
and 506(2) IPC, in which final report had already been
filed and was taken on file as PRC No. 3 of 2005 on the
file of Judicial Magistrate No. I, Kancheepuram. ............
5. Today Mr. K. Doraisami, learned Public
Prosecutor after getting necessary instructions from the
Government, perusing the relevant records, applying his
mind on the issue and taking into consideration the facts
and circumstances of the case, submits that necessary
steps will be taken to withdraw the case against the
petitioners in accordance with law or alternatively the
petitioners may be permitted to take appropriate steps in
PRC 3 of 2005 on the file of Judicial Magistrate No. I,
Kancheepuram, to discharge themselves, to which
learned Public Prosecutor will not have any objection.
Of course, the learned Public Prosecutor also expects the
petitioners that they will not give any room for such
allegations in future.
6. Both the petitioners present before the Court today
stated that they did not involve in any such act as
complained and charged, nor they will involve in such
act in future. The above statement of the petitioners is
put on record.
7. In view of the fair stand of Mr. K. Doraisamy,
learned Public Prosecutor, I am of the considered opinion
that nothing survives in the above writ petitions and
therefore no further orders are required in the matter,
except to permit the learned Public Prosecutor to take
steps for withdrawal of the case against the petitioners as
contemplated under Section 321 Crl.P.C., or
alternatively, to permit the petitioners to get themselves
discharged from PRC No. 3 of 2005 on the file of
Judicial Magistrate No. I, Kancheepuram, in accordance
with law, in appropriate proceedings."
12. Shri F.S. Nariman, learned senior counsel for the petitioner has
strongly urged that in case the version given in the FIR lodged by
Smt. Chitra, wife of Ravi Subramaniam, was correct there was no
occasion for the public prosecutor to make a statement that necessary
steps would be taken to withdraw the case and the prosecution should
have proceeded with the case to its logical end which would have
revealed the truth. He has further submitted that in spite of the
statement of the public prosecutor on the basis of which the writ
petition was disposed of on 24.6.2005, till now no application has
been moved under Section 321 Cr.P.C. seeking withdrawal of the
case. Dr. Rajeev Dhavan, learned senior counsel for the State has,
however, submitted that the presence of the two lady lawyers in the
jail on the dates mentioned in the FIR lodged by Smt. Chitra is not
disputed, which prima facie indicates about the correctness of the FIR
lodged by her. Dr. Dhavan has also placed some papers for the
perusal of the Court which show that the District Magistrate has
written to the Government for withdrawing the case. However, the
fact remains that so far no application under Section 321 Cr.P.C. has
been moved to withdraw the criminal case wherein a charge-sheet has
been submitted against the two lady lawyers. The fact that Shri A.
Shanmugam, advocate for the petitioner, had to move a writ petition
in the High Court for transfer of the investigation of the case lodged
by Smt. Chitra and the two lady lawyers, who are juniors to the
advocates appearing for the accused, had also to file similar writ
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petitions gives an idea of the atmosphere in which the lawyers
appearing for the accused are functioning and discharging their
professional duties. The mere statement of the public prosecutor that
steps will be taken to withdraw the criminal case, in absence of any
concrete steps having been taken in that regard, namely, filing of an
application under Section 321 Cr.P.C., can hardly give any solace to
the concerned lawyers. There cannot be even a slightest doubt that a
lawyer appearing for an accused who is facing a murder charge,
cannot perform his professional duty as is required of him when he
himself is faced with criminal prosecution, for a serious charge like
201 and 214 IPC, which are punishable with imprisonment for a term
which may extend to seven years and also fine. Though it is not
necessary for the decision of the present Transfer Petition yet we
cannot restrain ourselves from commenting that the necessary
ingredient of an offence under Section 201 IPC is actually causing any
evidence of the commission of an offence to disappear with the
intention of screening the offender from legal punishment. Therefore,
the oral threat or inducement allegedly given by the two lady lawyers
to Ravi Subramaniam not to give any statement against the petitioner
cannot amount to commission of an offence under the said section.
Yet the local police submitted a charge-sheet against the aforesaid
lady lawyers for their prosecution under Section 201 IPC. Institution
of the criminal case against the junior lawyers, whose seniors are
appearing as counsel for the accused, undoubtedly shows that in the
prevailing conditions the accused will be seriously handicapped in
defending themselves on account of threat and intimidation to their
counsel.
13. Another strong circumstance, pointed out by the learned
counsel for the petitioner to show that the State machinery is going
out of its way in preventing the petitioner and some other accused
connected with the Mutt in defending themselves and to secure their
conviction by any means, is the action of the SIT in issuing a direction
for freezing the accounts of the Mutt in the banks. Shri Prem Kumar
and Shri S.P. Sakthivel, Head and Chief Investigating Officer of SIT
(respondent Nos. 3 and 4) wrote to several banks to "stop all further
transactions, if any, through your bank in future" whereby 183 bank
accounts belonging to the Mutt and even independent trusts, which
had been functioning under the control and/or direction of the Mutt,
became unfunctional. The result whereof was that the entire working
of the Kanchi Mutt came to a standstill. Faced with such a draconian
order of the State authorities His Holiness Sri Kanchi Kamakoti
Peetadhipathi Jagadguru Sri Sankaracharya Swamigal Srimatam
Samasthanam, represented by its Manager, filed writ petition No.
1050 of 2005 impleading (1) State of Tamil Nadu, (2) Secretary to
Government, Hindu Religious and Charitable Endowments
Department, (3) Superintendent of Police, SIT and several banks as
respondents praying that a writ of mandamus be issued forbearing
respondents 1 to 3 from interfering with the right of the petitioner to
manage and administer its affairs properly including the bank
accounts in various banks held in its name and in the names of its
various endowments and trusts connected with it. The High Court
after examining the matter in considerable detail allowed the writ
petition by the judgment and order dated 11.2.2005. It is noticed in
the judgment that the Manager of the Mutt was called at least 15 times
for interrogation and was arrested on 24.12.2004 and the junior
Shankaracharya was also arrested on 11.1.2005. The police called for
title deeds relating to the properties, which had no connection with the
criminal case. The letter, which was sent by the Chief Investigating
Officer to various banks has been quoted in the judgment and the
same reads as under: -
"During the course of investigation there are reasonable
suspicion to indicate certain irregularities had crept in by
way of money transactions to certain agencies through
your bank till today. Hence it is expedient and necessary
to stop all further transaction if any through your bank in
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future.
Therefore, I request that necessary steps may be
taken immediately to freeze the account in the above
reference No. 1 on the file of your bank."
The respondent State sought to justify the action of freezing of the
accounts under Section 102 Cr.P.C. After detailed consideration of
the matter the High Court recorded its findings on the relevant issues
and paragraphs 44 and 46 thereof are being reproduced below: -
"44. The scope and applicability of Section 102,
Cr.P.C. is under rare and exceptional circumstances and
is to be applied only to the assets of the accused, which
are the direct outcome of the crime and not to stifle the
activities of the Mutt which is an institution unconnected
with the offence. The power which is vested for a
particular purpose cannot be stretched to irrelevant
matters and to extremes and to a breaking point, in the
event of which, the Court is compelled to interfere.
Discretion to use the power should be used and exercised
cautiously, failing which, it becomes misuse of discretion
and tainted with arbitrariness.
46. The Mutt is an organization of religious faith of
innumerable people. So also is the Church, Mosque,
Wakf, etc. There are several Endowments, Trusts and
philanthropic activities attached to these organizations
over which several devotees have personal interest, faith
and sentimental devotion. One may or may not agree
with the respective faith or belief of others. But they
have a right to establish and maintain institutions for
religious and charitable purposes within the framework
of law and such right is granted as a fundamental right
under the Constitution vide Article 26. Such an
organization cannot be paralysed or closed down
virtually by sending a letter purporting to act under
Section 102, Cr.P.C., only for the reason that the Head of
the Mutt and few office bearers are alleged to be
involved in some offences. A word of caution to the
Special Investigation Team: By all means, take action in
the criminal cases against the indicted individuals with a
single-minded determination if you feel convinced about
their guilt. No one is above the law. But if you divert
and deviate from that direction unmindful of the rights of
innocent devotees of the Mutt, it would result not only in
diluting the prosecution, but also cast a deep shadow on
it. If there is anything wrong with the administration of
the Mutt, it is for the H.R. and C.E. Department which
has to comply with the procedure under the Act and to
look after the said issues in terms of the provisions of the
Act and it is not for the police to interfere with the
functions of the Mutt while investigating a case of
murder or assault. Even if any commission or omission
amounting to a criminal misconduct is brought to light in
so far as the administration of the Mutt is concerned in
the opinion of the H.R. & C.E. Department, it may be
open to the H.R. & C.E. Department to file a complaint
before the police for appropriate action against the
individuals concerned. It is not for the Special
Investigation Team dealing with a murder and assault
case to plunge into the accounts of the Mutt, and paralyse
its functions by invoking Section 102, Cr.P.C."
14. The High Court accordingly held that the impugned action of
the Chief Investigating Officer, SIT in invoking Section 102 Cr.P.C.
for freezing of the accounts of the Mutt is ultra vires the said
provision, illegal and liable to be set aside, subject to the direction to
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the petitioner that they shall submit a statement of accounts pertaining
to all bank deposits to the third respondent once in a month till the
completion of the trial.
15. Dr. Dhavan, learned senior counsel appearing for the
respondents sought to justify the freezing of the accounts on the
ground that the petitioner had hatched conspiracy to get Sankararaman
murdered and large amount of money was being withdrawn from the
banks to finance the hirelings. We are not impressed by the
submission made by Dr. Dhavan. The alleged conspiracy to commit
the murder of Sankararaman culminated with his murder, which took
place on 3.9.2004 and thereafter even according to the own case of the
prosecution no further offence has been committed in pursuance of the
said conspiracy. The directions for freezing the accounts were issued
some time in 2005. It is also important to note that the order of the
High Court allowing the writ petition and setting aside the direction
issued regarding freezing of the accounts has attained finality as the
same has not been challenged in any higher forum. As rightly
observed by the High Court an organization (Mutt) cannot be
paralysed or closed down by issuing a direction under Section 102
Cr.P.C. only for the reason that the head of the Mutt and few office
bearers are alleged to be involved in some offence. The freezing of all
the accounts of the Mutt and its associated trusts and endowments is a
clear pointer to the fact that the State machinery anyhow wants to
paralyse the entire working of the Mutt and the associated trusts and
endowments in order to put pressure upon the petitioner and other co-
accused who are in any manner connected with the Mutt so that they
may not be able to defend themselves. It is indeed surprising that in
spite of clear language used in sub-Section (1) of Section 102 Cr.P.C.
to the effect \026 any police officer may seize any property which may be
alleged or suspected to have been stolen, or which may be found
under circumstances which create suspicion of the commission of any
office \026 all the 183 accounts were frozen merely on the ground that
the head of the Mutt was involved in the murder case. The action of
freezing the accounts demonstrates as to what extent the State
machinery can go while prosecuting the petitioner in the
Sankararaman murder case.
16. Another circumstance pointed out by the learned counsel for the
petitioner is the invocation of Goondas Act against 16 co-accused of
the case, including N. Sundaresan (respondent No. 7) and M.K. Raghu
(respondent No. 8) between 13th to 25th January, 2005, while they had
still not been granted bail in the present murder case. N. Sundaresan
is a Gold Medalist of B.Com. and retired as Class I Officer in the
Reserve Bank of India. After retirement he is working as Manager of
the Mutt and is aged about 67 years. The detention order was
challenged by these accused by filing Habeas Corpus petition No. 79
etc. of 2005 in Madras High Court and the same was allowed on
5.5.2005 and all the detention orders were quashed. The High Court
observed as under in its judgment: -
"In spite of our hectic search, we are unable to find any
material either through some documents or through some
statements from the public to show that due to the ground
incident, there has been a feeling of insecurity among the
people who are residents of the local area. Similarly, no
single materials has been placed before the detaining
authority to indicate that even tempo of life was affected
or that the people in the locality got afraid or felt insecure
or that there was public disorder. Nobody speaks about
the apprehension that even tempo of the community got
endangered
In the absence of any material to show that there was
disturbance to the public order in the public place and the
people got panic due to the said incident, we are at loss to
understand as to how the detaining authority could
uniformly state in all the detention order: "by committing
the above describing crime in a public place, he has
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created fear and panic and a feeling of insecurity in the
minds of the people of the area and thereby acted in a
manner prejudicial to the maintenance of public order.
......... that the conclusion arrived at by the
detaining authority as mentioned in the grounds of
detention totally contradicts the case of the sponsoring
authority."
(the word "ground incident" has been used for the murder
case of Sankararaman)
17. Dr. Rajeev Dhavan, learned senior counsel for the respondents,
has submitted that against the judgment of the High Court the
Prohibition and Excise Department, Tamil Nadu, has filed a Special
Leave Petition in the Supreme Court on which notice has been issued
both on the petition and also on the stay application on 22.8.2005. Be
that as it may, the date of passing of the detention order is quite
relevant. This Court granted bail to the petitioner Jayendra
Saraswathi on 10th January, 2005 and the detention orders have been
passed between 13th to 25th January, 2005, while these 16 co-accused
were still in custody in the murder case. It is not possible to lightly
brush aside the contention of the learned counsel for the petitioner that
the aforesaid detention orders were passed only to pre-empt the
release from custody of these accused as a result of bail being granted
to them, as some of them would have claimed parity with the order of
bail granted to the petitioner Jayendra Saraswathi by the Supreme
Court.
18. Shri G.L. Sanghi, learned senior counsel for the accused M.K.
Raghu (respondent No. 8) has submitted that another case as Crime
No. 289 of 2005 has been registered against respondent Nos. 7, 8 and
10 under Section 20(b)(ii) of NDPS Act on the basis of the alleged
statement of one Agilan @ Sait, who was allegedly arrested on
22.4.2005 near bus stand Chenglepet for being in possession of 3 Kg.
of Ganja. According to the learned counsel a persistent attempt is
being made by the State machinery to implicate the accused in several
cases so that they may not be in a position to effectively defend
themselves in the murder case of Sankararaman.
19. Shri Nariman, learned senior counsel for the petitioner has also
submitted that not only the State machinery is being used to cause
harassment to the accused in the murder case in every possible
manner but even those, who have written any kind of article or have
given any press statement or interview criticizing the action of the
State in arresting and involving the petitioner Jayendra Saraswathi in
the murder case of Sankararaman, have not been spared and criminal
cases have been lodged against them. He has placed before the Court
copies of the complaints which have been filed under Section 199(2)
Cr.P.C. against Shri Murli Manohar Joshi, former Union Minister for
Human Resources Development, Shri Karunanidhi (President, DMK
and former Chief Minister of Tamil Nadu), Shri H. Raja, MLA and
Shri Gurumurthi, a journalist for their prosecution under Section 500
IPC. These papers show that the City Public Prosecutor, Chennai has
filed separate complaints in accordance with Section 199(2) Cr.P.C.
against Shri Murli Manohar Joshi, Shri Karunanidhi, Shri H. Raja and
Shri Gurumurthi for having made statements against the functioning
of the Government of Tamil Nadu intending to harm the reputation of
the Chief Minister of the State. Shri Gurumurthi filed writ petition
No. 5835 of 2005 in the Madras High Court for quashing of the FIR
and the charge-sheet filed against him and an order has been passed
staying his arrest. Learned counsel has submitted that filing of the
complaints under Section 500 IPC against these persons shows that
even expressing any kind of dissent against the prosecution of the
petitioner either in an article which is published in a newspaper or by
giving interview to media or a press statement is not being tolerated in
the State of Tamil Nadu and by launching prosecution an atmosphere
of threat and fear has been created to stifle any kind of dissent.
According to the learned counsel the filing of the complaints amounts
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to violation of the fundamental rights of free speech guaranteed under
the Constitution. Dr. Dhavan, learned counsel for the State has
submitted that if any defamatory statement is made maligning the
reputation of the Chief Minister a prosecution under Section 500 IPC
can certainly be launched and as such no adverse inference can be
drawn merely because a complaint has been filed against those who
are holding high political offices or some journalists.
20. Shri Nariman has also submitted that an amount of Rs.5.00
lakhs was paid by way of solatium by the Chief Minister to Padma
Sankararaman, widow of Sankararaman (deceased) in the Secretariat
building on 24.11.2005, which event was widely covered in the
media. Just five days thereafter Padma Sankararaman identified
respondent Nos. 12 and 13 in a test identification parade as they are
alleged to have gone to her house enquiring about the deceased.
Learned counsel has submitted that there is no occasion for paying an
amount of Rs.5.00 lakhs from public exchequer to the widow of the
deceased of a murder case. Ordinarily, the State pays compensation
or some monetary help to victims of natural calamity like flood,
earthquake, cyclone, etc., or to family members of public servants
who are killed in the discharge of their official duty. After payment of
this heavy amount of money to the widow of the deceased, it is urged,
the widow of the deceased can go to any extent and would speak
whatever the prosecution agency wants her to say. The fact that an
amount of Rs.5.00 lakhs was paid to the widow of the deceased
Sankararaman on 24.11.2004 in the Secretariat building, which was
widely covered in the media, is not disputed from the side of the State.
21. Shri Shanti Bhushan, learned senior counsel for respondent No.
6 Ravi Subramaniam (approver) has strongly opposed the prayer for
transfer of the case from the State of Tamil Nadu. Learned counsel
has submitted that that there is nothing wrong if the Chief Minister,
who is also holding the Home portfolio, makes a statement on the
floor of the House, specially where the case had generated wide
publicity and was being reported in various newspapers and media.
Learned counsel has further submitted that in case the accused has any
genuine apprehension that they will not get a fair trial before a
particular sessions judge, they can approach the High Court and seek
transfer to some other Sessions Judge but there is no reason at all to
condemn the entire judiciary of the State of Tamil Nadu. Learned
counsel has also urged that over 370 prosecution witnesses have been
cited in the charge-sheet and while judging the apprehension of the
accused the inconvenience, which may result to the prosecution in the
event of transfer of the case to another State, cannot be overlooked.
Ms. Indira Jaisingh, who has appeared for Padma Sankararaman
(widow of the deceased Sankararaman) has submitted that all the
prosecution witnesses are Tamil speaking and various documents
pertaining to the case are also in the Tamil language. There being no
allegation against the concerned Sessions Judge, it is contended that
there is absolutely no ground to transfer the case outside the State of
Tamil Nadu. Learned counsel has placed strong reliance on Abdul
Nazar Madani vs. State of Tamil Nadu and another (2000) 6 SCC 204,
where this Court made the following observations in paragraphs 7 and
8 of the report: -
"The purpose of the criminal trial is to dispense
fair and impartial justice uninfluenced by extraneous
consideration. 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
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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.
The mere existence of a surcharged atmosphere
without there being proof of inability of holding fair and
impartial trial cannot be made a ground for transfer of a
case. The 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 surcharged communal atmosphere, the
case should be transferred from the area where existence
of such surcharged atmosphere is alleged. The Supreme
Court had not concluded so generally in Francis Case
(G.X. Francis vs. Banke Bihari Singh AIR 1958 SC 309,
explained and distinguished)."
22. Learned counsel for the petitioner in support of his submission
has placed reliance on the following observations made by this Court
in Gurcharan Dass Chadha vs. State of Rajasthan AIR 1966 SC 1418:-
"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 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 K. Anbazhagan v. Superintendent of Police & Ors. (2004) 3 SCC
767, it was held as under: -
"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 it should be seemed 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."
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The principle laid down in these cases is more or less the same. If
there is reasonable apprehension on the part of a party to a case that
justice may not be done, he may seek transfer of the case. The
apprehension entertained by the party must be a reasonable one and
the case cannot be transferred on a mere allegation that there is
apprehension that justice will not be done.
23. We have discussed above many facets of the case which do
show that the State machinery in Tamil Nadu is not only taking an
undue interest but is going to any extent in securing the conviction of
the accused by any means and to stifle even publication of any article
or expression of dissent in media or press, interview by journalists or
persons who have held high positions in public life and are wholly
unconnected with the criminal case. The affidavits and the documents
placed on record conclusively establish that a serious attempt has been
made by the State machinery to launch criminal prosecution against
lawyers, who may be even remotely connected with the defence of the
accused. The Superintendent of Police, SIT and police inspector
connected with the investigation even went to the extent of prompting
the approver Ravi Subramaniam to make insinuation against a very
senior counsel, who has been practicing for over 43 years and is
appearing as counsel for the petitioner. The other counsel had to file
writ petitions in the Madras High Court for seeking a direction for
transferring investigation of the criminal cases registered against them
from the local police to CBI. The police submitted charge-sheet
against two junior lady lawyers under various sections of IPC
including Section 201 IPC when even accepting every word in the
FIR lodged by Smt. Chitra wife of Ravi Subramaniam (approver) as
correct, no offence under the said provision is made out. Clause (1) of
Article 22, which finds place in Part III of the Constitution of India
dealing with Fundamental Rights, gives a guarantee to a person
arrested and detained to be defended by a legal practitioner of his
choice. Section 303 of Code of Criminal Procedure says that any
person accused of an offence before a criminal court or against whom
proceedings are instituted under the Code, may of right be defended
by a pleader of his choice. Even under the British Rule when Code of
Criminal Procedure 1898, was enacted, Section 340(1) thereof gave a
similar right to an accused. It is elementary that if a lawyer whom the
accused has engaged for his defence is put under a threat of criminal
prosecution, he can hardly discharge his professional duty of
defending his client in a fearless manner. A senior and respected
counsel is bound to get unnerved if an insinuation is made against him
in court that he approached the wife of a witness for not giving
evidence against the accused in the court. From the material placed
before us we are prima facie satisfied that a situation has arisen in the
present case wherein the lawyers engaged by the petitioner and other
co-accused cannot perform their professional duty in a proper and
dignified manner on account of various hurdles created by the State
machinery. The lawyers would be more concerned with shielding
their own reputation or their liberty rather than cross-examining the
prosecution witnesses for eliciting the truth. The constant fear of not
causing any annoyance to the prosecution witnesses specially those of
the police department would loom large over their mind vitally
affecting the defence of the accused. Passing of the detention order
against 16 co-accused soon after grant of bail to the petitioner by this
Court on 10.1.2005, which order could be of some support in seeking
parity or otherwise for securing bail in the present murder case, is a
clear pointer to the fact that the State wanted to deprive them of any
chance to secure release from custody. Even though this Court has
issued notice on the special leave petition filed by the State against the
order of the High Court by which Habeas Corpus petition of the 16
co-accused was allowed, yet the observations made in the said order
show in unmistakable terms that the even tempo of life was not
disturbed, nor the public order was affected by the murder of
Sankararaman and the detention order was passed without any basis.
Again, the action of the State in directing the banks to freeze all the
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183 accounts of the Mutt in the purported exercise of the power
conferred under Section 102 Cr.P.C., which had affected the entire
activities of the Mutt and other associated trusts and endowments only
on the ground that the petitioner, who is the head of the Mutt, has
been charge sheeted for entering into a conspiracy to murder
Sankararaman, leads to an inference that the State machinery is not
only interested in securing conviction of the petitioner and the other
co-accused but also to bring to a complete halt the entire religious and
other activities of the various trusts and endowments and the
performance of Pooja and other rituals in the temples and religious
places in accordance with the custom and traditions and thereby create
a fear psychosis in the minds of the people. This may deter any one to
appear in court and give evidence in defence of the accused.
Launching of prosecution against prominent persons who have held
high political offices and prominent journalists merely because they
expressed some dissent against the arrest of the petitioner shows the
attitude of the State that it cannot tolerate any kind of dissent, which is
the most cherished right in a democracy guaranteed by Article 19 of
the Constitution.
24. Taking into consideration the entire facts and circumstances of
the case and the material on record, we have no hesitation in holding
that the petitioner and other co-accused of the case have a reasonable
apprehension that they will not get justice in the State of Tamil Nadu.
We would like to clarify here that we are casting no reflection on the
district judiciary in the State of Tamil Nadu. But it is the actions of
the prosecuting agency and the State machinery, which are
responsible for creating a reasonable apprehension in the mind of the
petitioner and other co-accused that they will not get justice if the trial
is held in any place inside the State of Tamil Nadu. We are, therefore,
of the opinion that the interest of justice requires that the trial may be
transferred to a place outside the State of Tamil Nadu.
25. The next question which arises for consideration is as to where
the sessions case should be transferred. Shri F.S. Nariman, learned
senior counsel for the petitioner, has submitted that the case may be
transferred to any adjoining district like Chittoor, Nellore, Cuddapah
or Tirupati in the State of Andhra Pradesh as about one-third of the
judicial officers in the said State and particularly in the aforesaid
districts are conversant with Tamil language. It is also submitted that
in view of Section 277 Cr.P.C. if the witness does not give statement
in the language of the Court, a translation of the evidence in the
language of the Court has to be prepared as the examination of the
witness proceeds and, therefore, transferring the case to a district
which is not Tamil speaking is also permissible under law. Dr. Rajiv
Dhawan, learned counsel for the respondents, has submitted that if at
all the case is transferred, it should be transferred to Pondicherry as
the language spoken there is Tamil and it is only at a distance of 70
kms. From Kanchipuram. In our opinion, while directing transfer of
a criminal case the language spoken by the witnesses assumes great
importance as translation of deposition of a witness apart from being a
difficult job, often does not carry the same sense which the witness
wants to convey. The convenience of the prosecuting agency,
especially in a case where there are large number of witnesses and
documents, has also an important bearing. We are, therefore, of the
opinion that the case may be transferred to Pondicherry as there will
be no difficulty in recording the evidence in the same language in
which almost all the witnesses would depose and with which the
presiding judge would be familiar. It is only at a short distance from
Kanchipuram and the witnesses would not face much inconvenience
in going there.
26. The transfer petition is accordingly allowed. The Sessions
Case No.197 of 2005 pending before the Principal Sessions Court,
Chenglepet, is transferred to the Court of Principal District and
Sessions Judge, Pondicherry, who may either try the case himself or
assign it to any other Sessions Judge competent to try the same. All
applications stand disposed of.
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