Supreme Court Of India

Allowing the petition, the Court HELD: 1. If there is a 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. [578-c-d] Abdul Nazar Madani v. State of Tamil Nadu [2000] 6 SCC 204 and Gurcharan Dass Chadha v. State of Rajasthan AIR (1966) SC 1418, relied on. G.X. Francis v. Banke Bihari Singh AIR (1958) SC 309, cited. 2. 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, Special Investigation Team and Police Inspector connected with the investigation even went to the extent of prompting the approver 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 accepting every word in the FIR lodged by the wife of the approver as correct; no offence under the said provision is made out. Article 22(1), 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, 1973 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. Therefore, 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, 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 neither disturbed nor the public order was affected by the murder of the deceased and the detention order was passed without any basis. Again, the action of the State in directing the banks to freeze all the 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 the deceased, 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 anyone 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. [578-d-h; 579-a-h; 580-a-b] 3. Taking into consideration the entire facts and circumstances of the case and the material on record, it is held 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. It is clarified that no reflection on the district judiciary in the State of Tamil Nadu is cast. 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. Therefore, the interest of justice requires that the trial may be transferred to a place outside the State of Tamil Nadu. [580-c-d] 4. 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. Therefore, 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. The witnesses would not face much inconvenience in going there. [580-g-h; 581-a-b] Abdul Nazar Madani v. State of Tamil Nadu [2000] 6 SCC 204, referred to. G.X. Francis v. Banke Bihari Singh AIR (1958) SC 309, cited. F.S. Nariman, Krishna Kumar, A. Shanmugam, Subhash Sharma and S. Karthikeyan for the Petitioner. Dr. Rajeev Dhavan, Shanti Bhushan (NP), Ashok H. Desai, G.L. Sanghi (NP), P.N. Narasimha, B. Kumar and Ms. Indira Jaisingh, R. Ayyam Perumal, S. Vallinayagam, Prasnanth Venkatesh, M.A. Chinnasamy, Naresh Kumar, N.L. Ganapathi, M. Sathyanarayanan, K.S. Vaithianathan, Vinodh Kanna B., Mahesh Agarwal, Ms.Lupanlu Gangmei, Rishi Agrawala, Manu Krishnan, E.C. Agrawala, Rutwik Panda, Pradeep Kumar Kar, Ashok K. Sadhu Khan, M.K.D. Namboodiry, Ms. Sumita Hazarika, Hari Shankar K., T. Raja, M.A. Krishna Moorthy, D.Bharat Kumar, Anand, Azim H. Laskar, Abhijit Sengupta, Ms.Indrani, Naveen R Nath, Ms. Lalit Mohini Bhat, Ms. Anitha Shenoy and Ms.Hetu Arora for the Respondents.