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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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