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CASE NO.: Contempt Petition (crl.)  11439-40 of 2003 Transfer Case (crl.)  77-78 of 2003

PETITIONER: K.Anbazhagan

RESPONDENT: Superintendent of Police, Chennai & Ors.                  

DATE OF JUDGMENT: 17/02/2004

BENCH: S.N. VARIAVA & H.K. SEMA.

JUDGMENT: JUDGMENT

SEMA,J

                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 his choice.  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  with law.

(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

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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 Nadu 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.  (Emphasis supplied) (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 Court.   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.  

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       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

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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.