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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@@                    JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ others  are involved in Coimbatore B-1 Bazar Police  Station@@ JJJJJJJJJJJJJJJJJJJJJJJ 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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