Wednesday, Nov 19, 2003
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By J. Venkatesan
A Bench, comprising Justice S. N. Variava and Justice H. K. Sema, thereby allowed the petitions filed by the general secretary of DMK, K. Anbazhagan, and the impleading application filed by the Janata Party president, Subramanian Swamy, praying for a direction to transfer the cases to a court outside Tamil Nadu to ensure a free and fair trial.
Besides Ms. Jayalalithaa, the other accused in the "Rs. 66.65-crore wealth case" are: N. Sasikalaa, Ms. Jayalalithaa's erstwhile foster son, V. N. Sudhakaran and Ilavarasi and the AIADMK MP, T.T.V. Dinakaran is the accused in the other case. The court had on February 28 stayed all further proceedings in the two cases pending before a Chennai Special Court.
The Bench held that Mr. Anbazhagan had made out a case that public confidence in the fairness of trial was being seriously undermined and great prejudice appeared to have been caused to the prosecution which could culminate in miscarriage of justice.
The Bench rejected the charge made on behalf of Ms. Jayalalithaa that the petitioner being a political opponent had filed the petition due to political vendetta and hence had no locus standi. "This submission has no force," the Bench noted and added that "in a democracy, the political opponents play an important role both inside and outside the House. They are the watchdogs of the Government in power." In that view of the matter, the petition lodged by such persons could not be brushed aside on the allegation of political vendetta.
The petitioner being a political opponent "is vitally interested in the administration of justice in the State" and is a "party interested" within the meaning of Sec. 406 (2) Criminal Procedure Code (which provides for transfer of a case from one court to another), the Bench said. Even otherwise, Dr. Swamy, who was the original complainant, had supported these transfer petitions, the Bench said.
The petitioner's senior counsel, T.R. Andhyarujina, argued that if this case was allowed to continue in Chennai in the hostile atmosphere prevailing in the State it might result in another "Best Bakery case" of Gujarat (in which all the 21 accused were acquitted by a trial court) and the Bench, by transferring the case to Bangalore, has agreed with the contention.
The judges said that "it is undisputed that 76 witnesses have been recalled. Many of them had earlier been cross-examined. We were informed that witnesses were recalled as senior counsel for Ms. Jayalalithaa had been busy attending to some other case filed against her when they were first examined."
The Bench said that the fact that witnesses were recalled for cross-examination on flimsy grounds after Ms. Jayalalithaa assumed power as Chief Minister and the Public Prosecutor appointed by her Government did not oppose and/or gave consent to application for recall of witnesses was indicative of how "judicial process 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," the judges observed.
In the present case, the Bench said, "it appears that process of justice is being subverted... The circumstances are such that it would 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."
The judges took serious exception to the trial court dispensing with the personal appearance of Ms. Jayalalithaa and said "be you ever so high, the law is above you. The grounds cited by her in the application were not all mitigating circumstances to have granted dispensation of personal appearance. To say the least, that was a ploy adopted to circumvent the due process of law."
Referring to the submissions made by K.K. Venugopal, senior counsel for Ms. Jayalalithaa, that the apex court had allowed the accused to dispense with their personal appearance in certain cases, the Bench made it clear that "the general rule remains that the accused must answer the questions by personally remaining present in the court. It is only in exceptional circumstances that the general rule can be departed/dispensed with. In this case, Ms. Jayalalithaa was available at Chennai and 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 Sec. 313 Cr.P.C... . The conduct of the Public Prosecutor in not opposing such a frivolous application has to be deprecated."
The Bench issued the following directions: The State of Karnataka, in consultation with the Chief Justice of the High Court, shall constitute a special court under the Prevention of Corruption Act, 1988 to whom the two cases pending on the file of XI Addl. Sessions Judge, Chennai shall stand transferred. The special court to have its sittings in Bangalore.
The State of Karnataka shall appoint a special judge within a month and trial shall start as soon as possible and will then proceed from day-to-day till completion.
Tamil Nadu shall ensure that all documents and records are forthwith transferred to the special court in Bangalore.
The State shall appoint within six weeks a senior lawyer having experience in criminal trials as the Public Prosecutor to conduct these cases and he shall have an assistant of his choice; the investigating agency shall render all assistance to the Public Prosecutor and his assistant; the Public Prosecutor will be at liberty to recall witnesses who had resiled from their previous statement and declare them as hostile and seek permission to cross-examine them. He will also be at liberty to take action for perjury against some or all such witnesses. In case any witness asks for protection, Karnataka shall provide protection to that witness; the special judge shall put to all the accused all relevant evidence and documents appearing against them whilst recording their statement under Sec. 313 Cr.P.C.. All the accused shall personally appear in the court to answer questions under Sec. 313 Cr.P.C. on the day they are called upon to do so.
"In our view, the petitioner has raised many justifiable and reasonable apprehensions of miscarriage of justice and likelihood of bias, which would require our interference," the judges said and ordered the transfer of the two cases to a special court in Bangalore.
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