TaxTMI 
TaxTMI 
2003 (11) TMI 654
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....a court of equal and competent jurisdiction in any other State. The facts are common in both the petitions. Reference to parties will be as arrayed in Transfer Petition No. 77 of 2003. We also propose to dispose of the petitions by this common judgment. 2. Brief facts leading to the filing of the present petition may be noticed. In 1991-96, the second respondent herein was the Chief Minister, of Tamil Nadu. AIADMK party headed by the second respondent was defeated in the General Election held in 1996 and DMK party was voted to power. Special courts were constituted for the trial of cases filed against the second, respondent and others, the constitution of which came to be upheld by this Court. Thereafter; in 1997, CC No. 7 was filed for the trial of respondent Nos. 2, 3, 4 and 5, Who have been charge-sheeted for offences under Sections 120-B IPC, 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) for alleged accumulation of wealth of Rs. 66.65 crores disproportionate to their known sources of income. In, 2001, CC No. 2/2001 was filed on the file of Principal Special Judge, Chennai. Respondent No. 2 and Mr. T.T.V. Dinakaran (re....
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....t is alleged that the Public Prosecutor has not made any attempt to declare them hostile and/or to cross-examine them by resorting to Section 154 of the Indian Evidence Act. No attempt has been made to see that Court takes action against them for perjury. It has also been alleged that the presence of second respondent has been dispensed with during her examination under Section 313 Cr. P.C. and instead a questionnaire was sent to second, respondent, and her reply to the questionnaire was sent to the court in absentia. It is alleged that the procedure so adopted is unknown to the law and the public prosecutor has not objected to the application of the respondent No. 2 for dispensing her presence at the time of examination under Section 313 Cr. P.C. These are the main facts, which have been pointed out by the counsel for the petitioner. 3. We have heard Mr. T.R. Andhyarujina, learned senior counsel for the petitioner. We have also heard Mr. Subramanium Swamy who was the original complainant. We have heard Mr. K.K. Venugopal and Mr. V.A. Bobde and Mr. ATM Ranga Ramanujam, learned senior counsel for the respondents. We have also heard Mr. Altaf Ahmed learned ASG. 4. Before we adv....
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...., senior counsel for the respondent on S.B. Mathur v. Matti Ullah . There, the petitioner filed a writ petition in the High Court of Delhi seeking interim order against his proposed transfer. The High Court merely issued notice but had not granted any interim order. While that petition was pending the petitioner filed another writ petition in J & K High Court without disclosing the fact of pendency of the writ petition in the Delhi High Court and obtained the interim order from J & K High Court and subsequently withdrew the writ petition filed in the High Court of Delhi. It is in these circumstances, this Court has stayed the interim order, passed by the J & K High Court, on the ground that the petitioner obtained interim order without disclosing the fact that the writ petition is also pending before the Delhi High Court. Mr. Vehugopal also relied on the decision rendered in G. Narayanaswamy Reddy (dead) by Lrs. v. Government of Karnataka, [1991]2SCR563 . In that case, the interim orders of stay of dispossession from land were issued by courts in favour of the landowners. This was a highly material fact for deciding the question of delay in making the award under the Land Acquisiti....
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....of 97 on the file of the XI Additional Sessions Judge (Special Court 1) Chennai, and C.C. No. 2 of 2001 on the file of the Learned Principal Sessions Judge (Special Court 1) Chennai to the 1st Respondent or any other independent agency not under the control of the State Government of Tamil Nadu, and pass such further order or orders as deem fit and proper in the circumstances of the case and thus render justice. 9. In Writ Petition No. 1777 of 2002, the following reliefs are prayed for: "In the above circumstances, it is most humbly prayed that this Hon'ble Court may be pleased to issue a Writ of Mandamus or any other appropriate order or direction in the nature of Writ, appointing one or more experienced Counsel as the prosecutor or prosecutors for conducting the criminal case in C.C. No. 7 of 97 pending on the file of the XI Additional Sessions Judge cum Special Judge No. 1, Chennai and C.C. No. 2 of 2001 (which has been ordered to be transferred from the Learned Principal Special Judge Chennai to the XI Additional Sessions Judge cum Special Judge No. 1, Chennai by this Hon'ble Court in Crl. O.P. No. 21969 of 2001 dated 10.1.2002) and directly monitor the cond....
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.... and not a "person interested" and, therefore, only Attorney General or a "party interested" has locus standi to file application and the petitioner not being a party to the proceeding is not a "party interested", and has no locus standi to file the present petition. We are unable to accept this submission for more than one reason. It will be noticed that the "party interested" has not been defined under Cr. P.C. The word "party interested" is of a wide import and, therefore, it has to be given a wider meaning. If it was the intendment of the legislature to give restricted meaning then they would have used words to the effect, "party to the proceedings". In this behalf the wording of Article 139A of the Constitution of India may be looked at. Under Article 139A the transfer can be if "the Supreme Court is satisfied on its own motion or on the application made by the Attorney General of India or by a party to any such case (emphasis supplied). Also if the provisions of Chapter XXIX of the Criminal Procedure Code are looked at, it is seen that when the legislature intended a "party to the proceeding" to have a night of appeal it specifically so stated. The legislature, therefore, kee....
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....ion 406 Cr.P.C. In Gurckaran Das Chadha v. State of Rajasthan,, this Court observed as under:- "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 tail. 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 of 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." 16. In Mrs. Maneka Sanjay Gandhi v. Ms. Rani Jethmalani (1079) 4 SCC 167, this is what this Court has said in paragra....
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....e for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the, society." 18. Reverting to the facts of the case, respondent No. 2 is the Chief Minister of Tamil Nadu. Respondent Nos. 3, 4 and 5 are her close relatives or close associates. In CC 7 of 1997 and CC 2 of 2001 she has been arraigned as accused No. 1. In this petition serious contentions have been raised from paragraph 25 to paragraph 33. These are extracted: "25. It is submitted that the 2nd Respondent being the Chief Minister of Tamil Nadu, the cases pending against her have to be entrusted to an independent agency. I submit that the police officers who are under the control of the State Government cannot be expected to prosecute the cases against the 2nd Respondent diligently. In fact there will be every attempt to save the 2nd Respondent and others from punishment. Similarly the law officers appointed by the State Government also cannot be in charge of the cases pending against the 2nd Respondent and others. 26. It is submitted that after nearly 7 months of lull the trial in the Rs.66.65 crores disproportionate wealth case in C....
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....2002 P.W. 148 Mohan who is running the business of Automobile upholstery turned hostile during his cross-examination. On 11-11-2002 itself P.W.196 Hajaj Ahmed, a tailor who was entrusted with the task of tailoring the marriage dress of the 5th Respondent herein/the fourth accused was cross-examined. The fourth accused Shri Sudhagaran is the sister's son of the second accused Mrs. Sasikala. On 12-11-2002 P.W. 184 a tourist car operator was cross-examined. On the subsequent day of 13-11-2002 P.W. 147 Madan Lal, P.W. 186 Chalapathy Rao and P.W. 219 R.S. Usman were cross-examined. The trial stood adjourned to 18-11-2002. The Special Judge has ordered summons as per the process list as prepared by the Special Court. 29. On 18.11.2002 five witnesses were recalled and cross-examined by the Counsel for the accused. The five witnesses who were examined on this date were P.W. 127 Rajseshwari, P.W.180 Suseela, P.W.143 Geethalakshmi, PW. 174 Mani and P.W. 206 Abdul Jaffar. The Trial continued on 19-11-2002 and two witnesses were examined. P.W. 171 Abdul Razack, Village Administrative Officer of Thiruthuraipoondi village was examined on that date. The other witness who was examined....
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....the present prosecution. There is a genuine apprehension in the mind of the public and that there is a real likelihood of bias, if not a pronounced bias in the conduct of prosecution by the prosecutor appointed by the AIADMK Government. 33. It is submitted that justice must not only be done but must be seen to be done. Free and fair trial being the foundation of criminal jurisprudence. There is prevalent apprehension in the mind of the public at large that the trial is neither free nor fair with the present prosecutor appointed by State Government conducting the trial in a manner where frequently the prosecution witnesses turn hostile especially during cross examination. Recalling most of the witnesses for the purpose of cross examination after the appointment of the Prosecutor chosen by the 2nd Respondent Government and after a lapse of several months itself creates a strong likelihood of official bias in the conduct of prosecution when the Chief Minister of the state is the first accused." 19. Counter on behalf of the second respondent has been filed. In fact respondent Nos. 3,4 and 5 have adopted the counter of respondent No. 2. Respondent No. 3 has denied the correc....
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....e petitioner. For brevity, we refer to few instances. 21. PW-98 Velayudham was examined in chief on 6.12.1999; cross-examined by A1 and A2 on 6.12.1999; recalled and cross-examined on 18.12.2002; resiled from his previous statement. No re-examination and not treated as hostile. 22. PW-116 Jayabal was examined in chief on 23.12.1999; cross-examined by A1 on 6.1.2000 and 13.1.2000; re-examined on 13.1.2000; recalled and cross-examined on 30.12.2002, 31.12.2002 and 2.1.2003 by A1, A2 and A4; resiled from his previous statement. No re-examination and not treated as hostile. 23. PW-126 Krishnamurthy was examined in chief on 10.2.2000 and 2.3.2000; recalled and cross-examined on 2.1.2003 and 23.1.2003; resiled from his previous statement. No re-examination and not treated as hostile. 24. PW-129 Namasi was examined in chief and cross-examined on 9.3.2000; recalled and re-examined on 13.12.2002. No re-examination. 25. PW-130 Maran was examined in chief and cross-examined on 9.3.2000; recalled and cross-examined on 13.12.2002; resiled from his previous statement. No re-examination and not treated as hostile. 26. PW-134 Rajendran was examined in chief and cross-examined on ....
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....s of justice is being subverted. 31. 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 but it should be seen 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. In the present case, the circumstances as recited above are such as to create reasonable apprehension in the minds of the public at large in general and the petitioner in particular that there is every likelihood of failure of justice. 32. Mr. Venugopal, learned senior counsel for the respondent contended that merely because the witnesses were not declared hostile, would not exclude or render unworthy of consideration the facts rendered by them in their evidence-in-chief. He submitted that the Court can consider any part of their t....
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....amine the entire testimony and accept that part of testimony which he finds to be creditworthy and act upon it But in the present case, the public prosecutor has not sought permission from the court by resorting to Section 154 of the Evidence Act even though the witnesses have resiled from their earlier testimony. In such a situation the subsequent testimony of the witnesses remains uncontroverted. Just to take an example, when the witness now states that his earlier evidence was given under pressure and no attempt is made to cross-examine such a witness, the Court may find it difficult if not impossible to accept the earlier statement. The Trial Judge may find it difficult not to accept the subsequent testimony of the witness, which has remained uncontroverted. This causes great prejudice to the prosecution culminating in great miscarriage of justice 33. Mr. Andhyarujina, learned senior counsel for the petitioner, has brought to our notice the manner in which the examination of 2nd respondent under Section 313 is" sought to be done, which according to him, is unknown to the procedure established by law. The second respondent filed a criminal M.P. No. 230 of 2003 dated 24.2.2003....
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....cur a whopping expenditure to appear in Court to answer the questions under Section 313 Cr. P.C. None of the facts, which have weighed with the consideration of the Court in Basavaraj's case (supra), was available in the given case. The grounds given in her application do not make out any case for granting exemption from personally appearing to answer question under Section 313. The conduct of the public prosecutor in not opposing such a frivolous application has to be deprecated. 34. Lastly, it is contended by counsel for the respondents, that the petitions seeking transfer of the cases have been filed belatedly and these petitions deserve dismissal for laches and negligence of the petitioner. Reliance was placed on the decision of this Court rendered in R. Balakrishna Pillai v. State of Kerala, AIR 2000 SC 2778, where this Court dismissed the petition on the ground that objection was raised four long years after filing of the appeal and no objection was taken when the appeal was heard by a Single Judge who referred the matter to a larger Bench. The facts of that case are not applicable in the facts of the present case. As already noticed, sequence of events leading to the ....