K.Anbazhagan Vs. Superintendent of Police,
Chennai & Ors  Insc 108 (17 February 2004)
S.N. Variava & H.K. Sema. Sema,J
Transfer Case (crl.) 77-78 of 2003
By these applications the applicant sought to
modify the judgment dated 18th November, 2003 passed by this Court in Transfer Petition
(Criminal) Nos. 77-78 of 2003. By the aforesaid judgment, this Court after
hearing counsel for both the sides at length allowed the transfer petitions in
terms of the following directions:
"(a) The State of Karnataka in consultation
with the Chief Justice of the High Court of Karnataka shall constitute a
Special court under the Prevention of Corruption Act, 1988 to whom CC No.7 of
1997 and CC No.2 of 2001 pending on the file of the XI Addl. Sessions Judge
(Special Court No.1) Chennai in the State of Tamil Nadu shall stand
transferred. The Special Court to have its sitting in Bangalore.
(b) As the matter is pending since 1997 the
State of Karnataka shall appoint Special
Judge within a month from the date of receipt of this Order and the trial
before the Special Judge shall commence as soon as possible and will then
proceed from day to day till completion.
(c) The State of Karnataka in consultation with the Chief Justice
of High Court of Karnataka shall appoint a senior lawyer having experience in
criminal trials as public prosecutor to conduct these cases. The public
prosecutor so appointed shall be entitled to assistance of another lawyer of
The fees and all other expenses of the Public
Prosecutor and the Assistant shall be paid by the State of Karnataka who will thereafter be
entitled to get the same reimbursed from the State of Tamil Nadu. The Public Prosecutor
to be appointed within six weeks from today.
(d) The investigating agency is directed to render
all assistance to the public prosecutor and his assistant.
(e) The Special Judge so appointed to proceed
with the cases from such stage as he deems fit and proper and in accordance
(f) The Public Prosecutor will be at liberty to
apply that the witnesses who have been recalled and cross-examined by the
accused and who have resiled from their previous statement, may be again
recalled. The public prosecutor would be at liberty to apply to the court to
have these witnesses declared hostile and to seek permission to cross-examine
them. Any such application if made to the Special court shall be allowed.
The public prosecutor will also be at liberty to
apply that action in perjury to be taken against some or all such witnesses.
Any such application/s will be undoubtedly considered on its merit/s.
(g) The State of Tamil Nadu shall ensure that all
documents and records are forthwith transferred to the Special Court on its constitution.
The State of Tamil
shall also ensure that the witnesses are produced before the Special Court whenever they are
required to attend that Court.
(h) In case any witness asks for protection the
State of Karnataka shall provide
protection to that witness.
(i) The Special Judge shall after completion of
evidence put to all the accused all relevant evidence and documents appearing
against them whilst recording their statement under Section 313. All the
accused shall personally appear in Court, on the day they are called upon to do
so, for answering questions under Section 313, Criminal Procedure Code."
In our view, the aforesaid directions have
adequately taken care of the security of the witnesses and others.
Mr. Venugopal, learned Senior counsel contended
that in view of surcharged atmosphere and large scale agitation by a section of
the people of Karnataka targeting the applicant as well as attacks on tamil
speaking people caused by highly sensitive Cauvery water dispute issue, the
trial if allowed to be taken in the State of Karnataka, the personal security
of the applicant would be seriously jeopardized and thus free and fair trial
would not be possible. Another ground seeking for modification of the order is
that the notorious forest brigand Veerappan, who is believed to be a Tamilian,
kidnapped the Karnataka matinee idol, Shri Raj Kumar and demanded a huge ransom
for his release, resulting in constraint relationship between the two States.
It is argued by Mr. K.K. Venugopal that in view of the surcharged and tense
situation in between the States of Tamil Nadu and Karnataka, the personal
security of the applicant is prejudiced and free and fair trial in such an
atmosphere would not be possible depriving the right of the applicant to have
free and fair trial as enshrined in Article 21 of the Constitution. It is
further argued that the Union Territory of Pondicherry, being closest to
Chennai, it is a more convenient place for the parties due to its proximity to
Chennai and also the people in Pondicherry are Tamil speaking people and the
Judges there are expected to know Tamil and in that view no translation of the
Tamil documents and depositions would be necessary. According to Mr. Venugopal,
if the cases are transferred to the Union Territory of Pondicherry instead of
Karnataka, justice would be better subserved. Mr. Venugopal further submitted
that the closest amongst the capitals of the three States and the Union
Territory of Pondicherry to Chennai is Pondicherry which is about 100 miles
(162 Kms) whereas Bangalore is 200 miles (334 kms), Hyderabad 400 miles (704 kms),
Cochin 430 miles (689 kms) and Thiruvananthapuram 500 miles (790 kms).
Before we advert further, we may at this stage,
dispose of this part of the argument of Mr. Venugopal. This Court has exercised
its powers under Section 406 of the Code of Criminal Procedure. Section 406
enjoins that it is expedient for the ends of justice, this Court may direct any
particular case or appeal be transferred from one High Court to another High
Court or from a Criminal Court subordinate to one High Court to another
Criminal Court of equal or superior jurisdiction subordinate to another High
Admittedly, Union Territory of Pondicherry does
not have a separate High Court, it is within the jurisdiction of Madras High
Court. If this submission is accepted it would amount to transfer of case from
Madras High Court to the same jurisdiction of the High Court. This situation is
not contemplated under Section 406 of the Code. This contention, in our view,
is not well founded.
Pursuant to the notice, the State of Karnataka has filed counter
affidavit. The State of Karnataka in their counter has denied all the allegations made in the
applications. Learned Advocate General for the State of Karnataka has appeared before us
and submitted that pursuant to the directions of this Court a Special Judge has
been appointed in consultation with the Chief Justice of the High Court and all
the arrangements have been made for conducting free and fair trial smoothly. In
paragraph 2 of the counter affidavit it is stated:- "At the outset, it is
submitted that for the purpose of securing the relief prayed for in the
application, the applicant has chosen to present a picture far from the
existing reality in the State of Karnataka. It is no doubt true that the
dispute relating to the River Cauvery which is now pending adjudication before
the Cauvery Water Disputes Tribunal has occasionally given rise to strong
feelings among the peoples of both States. This, would not mean that the legal
system in Karnataka will be unable to ensure a fair trial for the applicant in
accordance with the norms and conditions set out by this Hon'ble Court in its
earlier order dated 18.11.2003. For its part, Karnataka will ensure that the
trial is fair and all necessary security is provided to the applicant at all
stages of the trial. This submission is made as the allegations in the
application amount to an unfair criticism of the legal system operating in
Karnataka for which there is absolutely no warrant or justification.
(Emphasis supplied) In paragraph 5 it is stated
"Undoubtedly, there have been large scale
agitations in the past in regard to the dispute relating to the sharing of Cauvery
waters and feelings ran high in both States. The issue of release of water in
accordance with the orders of the Tribunal has no relevance to the facts herein
pleaded and have no bearing on the conduct of a fair trial. The suicides
referred to are not of Tamil Nadu farmers but of farmers from Karnataka who
carry on agricultural operations in the Cauvery basin.
In paragraph 8 it is stated :- "Karnataka
takes strong exception for describing the atmosphere in the State as "foul
and totally vitiated". These false and self-serving statements are
apparently made to bolster up the plea for the relief. There is no reason to
apprehend that Karnataka will not take adequate steps for ensuring a fair trial
as directed by this Hon'ble Court. Only a few months ago, the applicant visited on her own a Temple in Mysore City and there is absolutely
no incident relating to it and she was able to complete her visit to the Temple peacefully and return
to Tamil Nadu safely. She informed the press persons that it was a personal
visit and did not wish to be drawn into political matters".
In paragraph 9 it is stated:
"This Hon'ble Court when it made its order was aware of the
fact that many of the documents would be in Tamil. Karnataka has arranged for
Official Translators so that the translation of the Tamil documents and
witnesses' depositions can be effectively done".
In paragraph 11it is stated :- "As
submitted earlier, Karnataka being a State of the Union, is duty bound to
uphold the federal system and constructively participate and carry out the
directions of this Hon'ble Court.
Karnataka will ensure that the trial is fair and
such security as may be necessary will be provided. Karnataka has no interest
in the outcome of the trial. It looks upon it only as a constitutional duty to
be discharged to effectuate the order of this Hon'ble Court".
(Emphasis supplied) We are not persuaded to
re-appreciate the circumstances leading to the filing of the Transfer Petitions
and order of this Court transferring the same to the State of Karnataka. After hearing counsel
for both the sides and threadbare discussion this court was of the view that it
is expedient for the ends of justice the cases be transferred from Tamil Nadu
to Karnataka for trial in accordance with law. Similarly, the lurking
apprehension raised by the applicant is well safe guarded by the undertaking of
the Karnataka Government with regard to the personal security of the applicant
and witnesses and others as referred to above. To say the least, the
apprehensions with regard to the Cauvery Water dispute, forest brigand Veerappan,
have got nothing to do with the judicial function of the Court.
At the same time, the security and safety of the
applicant and witnesses are well safeguarded as highlighted in the counter
affidavit of the State of Karnataka.
In the facts and circumstances aforesaid, no
case is made out for modification of our order under reference. Resultantly,
the petitions are dismissed being devoid of merits.
Before parting with the record, we must
unequivocally say that in a democratic country like ours, governed by the Rule
of Law, the efficient and independent judiciary manned the subordinate courts,
where justice is administered impartially, fearless of public glamour,
regardless of public responses and indifferent to private, political or
partisan influences. We have no least doubt in our mind that the learned judge
who has been assigned the job will do well in discharging his divine duty in
accordance with law, keeping in mind the above principle in view.