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TMI Blog2005 (10) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... amakoti 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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, Goudas, Immoral Traffic Offenders, Slum Grabbers and Video Pirates Act, 1982 (for short Goudas 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Subraman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 (app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 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 statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 Goudas 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 Medallist 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent Nos. 7, 8 and 10 under Section 20(b)(ii) of NDPS Act on the basis of the alleged statement of one Agile @ 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Banke Bihari Singh, 1958CriLJ569, 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 v. State of Rajasthan, 1966CriLJ1071 :- 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 inev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lish 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 circ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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