Paragraph numbers below are the court’s original numbering, recovered from the source text.
14. The High Court accordingly held that the impugned action of the Chief Investigating Officer, SIT in invoking Section I 02 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the ground that the petitioner had hatched conspiracy to get Sankararaman murdered and large amount of money was being withdrawn from the banks to finance the hirelings.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 E 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 F 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 I 02 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 G 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. H It is indeed surprising that in spite of clear language used in sub-Section (I) JAYENDRA SARASWATHYSWAMIGAL, TAMILNADU•. STATEOFTAMIL NADU[G.P. MATHUR,J.] 573 of Section I 02 Cr.P.C. to the effect-any police officer may seize any property A 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 B 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 c 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 D Court observed as under in its judgment: – "In spite of our hectic search, we are unable to find any material either through some documents or through some statements from the public to show that due to the ground incident, there has been a feeling of insecurity among the people who are residents of the local area. Similarly, no single materials has been placed before the detaining authority to indicate that even tempo of life was affected or that the people in the locality got afraid or felt insecure or that there was public disorder. Nobody speaks about the apprehension that even tempo of the community got endangered In the absence of any material to show that there was disturbance to the public order in the public place and the people got panic due to the said incident, we are at loss to understand as to how the detaining authority could uniformly state in all the detention order: "by committing the above describing crime in a public place, he has G 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 H 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 B 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 C 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 D 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 forthe 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 I 0 under Section E 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 G 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 H formerChiefMinisterofTamil Nadu), Shri H. Raja, MLA and Shri Gurumurthi, ' l JAYENDRA SARASWATHYSWAMIGAL, TAMIL NAOUv. STATE OF TAMIL NADU(G.P. MATHUR,J.j 575 a journalist for their prosecution under Section 500 !PC.
These papers show A 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 hann the reputation of the Chief Minister of the State. Shri Gurumurthi filed writ B petition No. 5835 of2005 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 !PC 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 C 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 D Minister a prosecution under Section 500 !PC 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 Sankararam11n identified respondent Nos. 12 and 13 in a test identification parade as they are alleged tQ have gone to her house enquiring about the F deceased. Learned counsel has submitted that there is no occasion for paying an amount ofRs.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 calami.ty like flood, earthquake, cyclone, etc., or to family members of public servants who are killed in the discharge of their G 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 m 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 B the case had generated wide publicity and was being reported in various newspapers and media. Learned counsel has further submitted that in case the accused has any genuine apprehension that they will not get a fair trial before a particular sessions judge, they can approach the High Court and seek transfer to some other Sessions Judge but there is no reason at all to condemn the entire judiciary of the State of Tamil Nadu. Learned counsel has also urged C that over 370 prosecution witnesses have been cited in the charge-sheet and while judging the apprehension of the accused the inconvenience, which may result to the prosecution in the event of transfer of the case to another State, cannot be overlooked.
Ms. Indira Jaisingh, who has appeared for Padma Sankararaman (widow of the deceased Sankararaman) has submitted that all the prosecution witnesses are Tamil speaking and various documents D pertaining to the case are also in the Tamil language. There being no allegation against the concerned Sessions Judge, it is contended that there is absolutely no ground to transfer the case outside the State of Tamil Nadu. Learned counsel has placed strong reliance on Abdul Nazar Madani v. State of Tamil Nadu and Anr., [2000] 6 SCC 204, wher~ this Court made the following E observations in paragraphs 7 and 8 of the report: – "The purpose of the crimin8.l trial is to dispense fair and impartial justice uninfluenced by extrar.eous consideration. When it is shown that public confidence in th1~ fairness of a trial would be seriously undermined, any party can se_ek 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 JAYENDRASARASWATHY SWAMIGAL, TAMIL NADU '· STATE OFT AMIL NADU[G.P. MATHUR,!.] 577 the trial is also a relevant consideration for deciding the transfer A 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 C 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 AIR (1958) SC 309, explained and D 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, AIR (19660 SC 1418:- "A case is transferred if there is a reasonable apprehe_nsion 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 F 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 G 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 H A 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." C 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 E 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 p 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 G police submitted charge-sheet against two junior lady lawyers under various sections of !PC including Section 20 I 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 (I) of Article 22, which finds place in Part III of the Constitution of India dealing with H Fundamental Rights, gives a guarantee to a person arrested and detained to JA YENDRA SARASWA THY SWAMIGAL, TAMIL NADU ''· ST ATE OFT AMIL NADU [G.P. MA THUR, J.] 5 79 be defended by a legal practitioner of his choice. Section 303 of Code of A 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 B 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 primafacie satisfied that a situation C 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 D 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 I 0.1.2005, which order could be of some support in seeking parity or otherwise for securing bail in the present murder case, is a clear pointer E 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 F 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, G 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 H A 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 B 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 C petitioner and other co-accused of the case have a reasonable apprehension that they will not get justice in the State of Tamil Nadu. We would like to clarify here that we are casting no reflection on the district judiciary in the State of Tamil Nadu. But it is the actions of the prosecuting agency and the State machinery, which are responsible for creating a reasonable apprehension in the mind of the petitioner and other co-accused that they will not get D justice if the trial is held in any place inside the State of Tamil Nadu. We are, therefore, of the opinion that the interest of justice requires that the trial may be transferred to a place outside the State of Tamil Nadu.
25. The next question which arises for consideration is as to where the sessions case should be transferred. Shri F.S. Nariman, learned senior counsel for the petitioner, has submitted that the case may be transferred to any adjoining district like Chittoor, Nellore, Cuddapah or Tirupati in the State of Andhra Pradesh as about one-third of the judicial officers in the said State and particularly in the aforesaid districts are conversant with Tamil language. It is also submitted that in view of Section 277 Cr.P.C. ifthe witness does not p give statement in the language of the Court, a translation of the evidence in the language of the Court has to be prepared as the examination of the witness proceeds and, therefore, transferring the case to a district which is not Tamil speaking is also permissible under law. Dr. Rajiv Dhawan, learned counsel for the respondents, has submitted that if at all the case is transferred, it should be transferred to Pondicherry as the language spoken there is Tamil G and it is only at a distance of70 kms.
From Kanchipuram. In our opinion, while directing transfer of a criminal case the language spoken by the witnesses assumes great importance as translation of deposition of a witness apart from being a difficult job, often does not carry the same sense which the witness wants to convey. The convenience of the prosecuting agency, especially in H a case where there are large number of witnesses and documents, has also IA VEND RA SARA SW A THY SWAMIGAL. TAMIL NADU "· ST ATE OFT AMIL NADU [G.P. MA THUR. 1 ] 5 8 J an important bearing. We are, therefore, of the opinion that the case may be A transferred to Pondicherry as there will be no difficulty in recording the evidence in the same language in which almost all the witnesses would depose and with which the presiding judge would be familiar. It is only at a short distance from Kanchipuram and the witnesses would not face much inconvenience in going there.
26. The transfer petition is accordingly allowed. The Sessions Case No.197 of 2005 pending before the Principal Sessions Court, Chenglepet, is transferred to the Court of Principal District and Sessions Judge, Pondicherry, who may either try the case himself or assign it to any other Sessions Judge competent to try the same. All applications stand disposed of. v.s.s. Petition allowed. c