IMPORTANT POINT
In case of transfer petition for trial of Ms. Jayalalitha, the petitioner has made out a case that the public confidence in the fairness of trial is being seriously undermined and great prejudice appear to have been caused to the prosecution which could culminate in grave miscarriage of justice, the Court transferred the trial from the Court at Chennai to the State of Karnataka.

Headnote:Criminal Procedure Code, 1973-Section 406-Prevention of Corruption Act, 1988-Section 13(2) rw/s 13(1)(e)-Indian Penal Code, 1860-Section 120B-Transfer petition-Trial of respondent Nos. 2, 3, 4 and 5 pending in Chennai Court-Respondent 2, former Chief Minister of the State and her close associates were prosecuted for alleged accumulation of wealth disproportionate to their known sources of income-Trial of case progressed and only 10 more witnesses remained to be examined-2nd respondent secured on absolute majority in 2001 elections-Change in government-3 Public Prosecutors resigned-76 PWs recalled for cross examination-Public Prosecutor did not object-Out of total 76 PWs, 64 PWs resiled from their previous statement in chief-Public Prosecutor had not made any attempt to declare them hostile and/or to cross examine them by resorting to Section 154 Evidence Act-Presence of second respondent dispensed with during her examination u/s 313 Cr.P.C.-A questionnaire was sent to 2nd respondent-Course of justice being subverted-Petitioner, a political opponent raised many justifiable and reasonable apprehensions of miscarriage of justice and likelihood of bias-Petitioner held as a party interested within the meaning of sub section 2 of Section 406 Cr.P.C.-Petition filed by him maintainable-Cases transferred from Courts at Chennai to Courts at Karnataka.
       Held : The petitioner has made out a case that the public confidence in the fairness of trial is being seriously undermined. As revealed from the aforesaid recited facts, great prejudice appear to have been caused to the prosecution which could culminate in grave miscarriage of justice. The witnesses who had been examined and cross-examined earlier should on such a flimsy ground never have been recalled for cross-examination. The fact that it is done after the second respondent assumed the power as the Chief Minister of the State and the public prosecutor appointed by her government did not oppose and/or give consent to application for recall of witnesses is indicative of how judicial process is being subverted. The public prosecutor not resorting to Section 154 of the Indian Evidence Act nor making any application to take action in perjury taken against the witnesses also indicate that trial is not proceeding fairly. It was the duty of the public prosecutor to have first strenuously opposed any application for recall and in any event to have confronted witnesses with their statements recorded under Section 161 of Cr.P.C. and their examination-in-chief. No attempt has been made to elicit or find out whether witnesses were resiling because they are now under pressure to do so. It does appear that the new public prosecutor is hand in glove with the accused thereby creating a reasonable apprehension of likelihood of failure of justice in the minds of the public at large. There is strong indication that the process of justice is being subverted. Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be the rule of law. It is important to note that in such a case the question is not whether the petitioner is actually biased but the question is whether the circumstances are such that there is a reasonable apprehension in the mind of the petitioner. In the present case, the circumstances as recited above are such as to create reasonable apprehension in the minds of the public at large in general and the petitioner in particular that there is every likelihood of failure of justice. (Paras 29 and 30)
       The general rule remains that the accused must answer the questions by personally remaining present in Court. It is only in exceptional circumstances that the general rule can be departed/dispensed with. In this case respondent No. 2 is holding the position of the Chief Minister of Tamil Nadu. She was available at Chennai. There was no exceptional exigency or circumstances such as her having to undertake a tedious long journey or incur a whopping expenditure to appear in Court to answer the questions under Section 313 Cr.P.C. None of the facts, which have weighed with the consideration of the Court in Basavaraj s case (supra), was available in the given case. The grounds given in her application do not make out any case for granting exemption from personally appearing to answer question under Section 313. The conduct of the public prosecutor in not opposing such a frivolous application has to be deprecated. (Para 32)
       In the result, we deem it expedient for the ends of justice to allow these petitions. The only point that remains to be considered is now to which State the cases should be transferred. We are of the view that for the convenience of the parties the State of Karnataka would be most convenient due to its nearness of Tamil Nadu. Accordingly, the petitions are allowed. CC No. 7 of 1997 and CC No. 2 of 2001 pending on the file of the XI Addl. Sessions Judge (Special Court No. 1) Chennai, in the State of Tamil Nadu shall stand transferred. (Para 34)

JUDGMENT

Sema, J.-These two petitions have been preferred under Section 406 of the Code of Criminal Procedure, seeking transfer of CC No. 7 of 1997 and CC No. 2 of 2001 on the file of the XI Addl. Sessions Judge (Special Court No. 1) Chennai in the State of Tamil Nadu to a court of equal and competent jurisdiction in any other State. The facts are common in both the petitions. Reference to parties will be as arrayed in Transfer Petition No. 77 of 2003. We also propose to dispose of the petitions by this common judgment.

2. Brief facts leading to the filing of the present petition may be noticed. In 1991-96, the second respondent herein was the Chief Minister of Tamil Nadu. AIADMK party headed by the second respondent was defeated in the General Election held in 1996 and DMK party was voted to power. Special courts were constituted for the trial of cases filed against the second respondent and others, the constitution of which came to be upheld by this Court. Thereafter, in 1997, CC No. 7 was filed for the trial of respondent Nos. 2, 3, 4 and 5, who have been charge-sheeted for offences under Sections 120-B IPC, 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) for alleged accumulation of wealth of Rs. 66.65 crores disproportionate to their known sources of income. In 2001, CC No. 2/2001 was filed on the file of Principal Special Judge, Chennai. Respondent No. 2 and Mr. T.T.V. Dinakaran (respondent No. 3 in T.P.No. 78 of 2003) have been charge-sheeted for offences under Sections 120-B IPC, 13(2) read with 13(1)(e) of Prevention of Corruption Act, 1988 for acquisition and possession of pecuniary resources and property outside India, which are disproportionate to known sources of income, by resorting to clandestine transfer of funds belonging to respondent No. 2 with the help of Mr. T.T.V. Dinakaran from India to outside country by violating the provisions of Foreign Exchange Regulation Act and from other countries into the United Kingdom. Trial of CC No. 7 of 1977 progressed and by August 2000, 250 prosecution witnesses had been examined. We are told that only 10 more witnesses remained to be examined in this case. In the general election held in May, 2001 AIADMK party headed by the second respondent secured an absolute majority in the legislative assembly. The second respondent was unanimously chosen to be the leader of the house by the AIADMK party. The said appointment was challenged and this Court nullified the appointment. Consequently, on 21.9.2001, the second respondent ceased to hold the office of Chief Minister. It is claimed that a nominee of the second respondent was sworn in as Chief Minister of Tamil Naidu. The Election Commission of India announced the bye-election to the Andipatti Constituency. In the bye election held on 21.2.2002, the second respondent was declared elected and she was again sworn in as Chief Minister on 2.3.2002. With the change in government, 3 public prosecutors resigned. Senior counsel S. Natarajan, who was appearing for the State also resigned. It appears that IO Mailama Naidu, who had earlier been given an extension, also resigned. It must be mentioned, even though we are sure that it has nothing to do with the change in government, that due to retirements and routine transfers there were changes in the Special Judge also. On 7.11.2002, the trial in CC No. 7 of 1997 resumed. It is alleged that since 7.11.2002 when the trial resumed as many as 76 PWs have been recalled for cross examination on the ground that counsel appearing for the respondents or some of them had earlier been busy in some other case filed against them. It is claimed that the public prosecutor did not object and/or give consent to the witnesses being recalled. Out of total 76 PWs, 64 PWs resiled from their previous statement in chief. It is alleged that the Public Prosecutor has not made any attempt to declare them hostile and/or to cross-examine them by resorting to Sect

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2003 Supreme(SC) 1156

Cases Referred (11)