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SUPREME COURT OF
TAMIL NADU GOVT. AND ITS POLICE
CASE NO.: Transfer Petition (crl.) 134 of
2005
PETITIONER: Sri Jayendra Saraswathy
Swamigal,Tamil Nadu
RESPONDENT: State of
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
2. An FIR was lodged at 7.00 p.m . on 3.9.2004 at Police Station B-2, Vishnu Kanchi by
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,
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. 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 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 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. 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 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 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 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 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 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
"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 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 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
"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 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."
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 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
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,
26. The transfer petition is accordingly allowed. The Sessions
Case No.197 of 2005 pending before the