The Supreme Court - Kanchi Shankaracharya Case -2

contd. from previous

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

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

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

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."

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

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.

CASE NO.:

Appeal (crl.) 44 of 2005

PETITIONER:

Sri Jayendra Saraswathi Swamigal

RESPONDENT:

State of Tamil Nadu

DATE OF JUDGMENT: 26/10/2005

BENCH:

CJI R.C. Lahoti & G.P. Mathur

JUDGMENT:

JUDGMENT

O R D E R

Criminal M.P. Nos. 540, 543 and 11224 of 2005

In

Criminal Appeal No. 44 of 2005

G.P. Mathur,J.

Soon after the petitioner was granted bail by this Court on

10.1.2005, an application was moved on 12.1.2005 being Criminal

Misc. Petition no. 540 of 2005 in Criminal Appeal No.44 of 2005 on

behalf of the State of Tamil Nadu praying that the petitioner Jayendra

Saraswathy should not reside in Tamil Nadu, Karnataka, Andhra

Pradesh and U.T. Pondicherry during the course of investigation and

trial on the ground that "he would be in a position to influence or

threaten the witnesses." Subsequently, on 3.10.2005, Criminal Misc.

Petition No.11224 of 2005 has been filed to withdraw the aforesaid

application. It is interesting to note that the withdrawal application

has been filed long after notice had been issued in the present transfer

petition on 6.5.2005. The application is accordingly dismissed as

withdrawn.

Criminal Miscellaneous Petition No. 543 of 2005 is dismissed.

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