# JA YENDRA SARASWA THY SWAMI GAL, TAMIL NADU v. STATE OF TAMIL NADU AND ORS

- **Citation:** [2005] Supp. 4 S.C.R. 556
- **Court:** Supreme Court of India
- **Decided:** 2005-10-26
- **Bench:** R.C. Lahoti, G.P. Mathur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ja-yendra-saraswa-thy-swami-gal-tamil-nadu-v-state-of-tamil-nadu-and-ors-20975
- **Pages:** 26

## Headnote

Code of Criminal Procedure, 1973:
Section 406-Transfer of criminal case-Petition for-Criminal case
C pending against accused in Tamil Nadu Courts-Accused allegedly entered
into conspiracy for getting one 'S' murdered-While 'S' was in office two
persons armed with 'aruval' came there and caused multiple injuries to 'S'
who died later-State machinery took undue interest in securing conviction
of the accused by any means-Criminal prosecution launched against lawyers
D connected with the defence of the accused-Detention order passed against
I 6 co-accused soon efter grant of bail to the accused-Prosecution also
launched against persons expressing dissent against the accused-Bank
accounts of the Mutt frozen thereby paralyzing the religious and other
activities of the Mutt and other connected bodies-Held: The actions of the
prosecuting agency and the State machinery are responsible for creating a
E reasonable apprehension in the mind of the accused and other co-accused
that they would not get justice if the trial was held in the State of Tamil
Nadu-Hence, the criminal trial pending against the accused and other coaccused transferred to a place outside the State of Tamil Nadu i.e. Pondicherry
where the same language is spoken and, therefore, there would be no difficulty
F in examining witnesses and documents.
According to the prosecution, the petitioner had entered into a criminal
conspiracy with some other co-accused for getting the in-charge
Administrative Manager of the 'Devarajaswamy Devasthanam' murdered.
While the said in-charge Administrative Manager was sitting on a chair in
G his office two persons armed with an 'aruval' came there and caused multiple
injuries to him as a result of which he died. The petitioner was arrested and
a charge sheet against him and 24 co-accused was filed in the Principal
Sessions Court in the State of Tamil Nadu.
The petitioner filed the present Transfer Petition under Section 406 of
H
556
JAYENDRA SARASWATHYS\VAMIGAL, TAMIL NADU "· STATEOFTAMll. NADU
557
the Code of Criminal Procedure, 1973 seeking transfer of the sessions case A
pending against him to any other place outside the State of Tamil Nadu on the
following grounds:-
(i) The State machinery in Tamil Nadu had shown great zeal and had
made extraordinary efforts, much beyond what was required under the law, to
anyhow secure the conviction of the petitioner and to achieve that object had B
procured and fabricated false evidence.
(ii) Concocted and false cases had been registered against 15 co-accused
and detention order had been passed against them soon after grant of bail to
the petitioner.
(iii) The advocates appearing for the petitioner and other co-accused had
been put under great threat on account of lodging of false and fabricated
criminal cases against them and a situation had been created wherein they
might not be in a position to defend the petitioner properly.
c
(iv) The Mutt and other associated and connected trusts had 183 D
accounts in banks, which were all frozen by the Special Investigation Team
resulting in paralyzing the religious and other activities of the Mutt and other
connected bodies.
(v) Criminal cases had been lodged against some leading journalists of E
the country and other prominent personalities who had written articles
criticizing the arrest of the petitioner.
(vi) Thus, the petitioner seriously apprehended that he would not get a
fair trial in the State of Tamil Nadu.
Allowing the petition, the Court
HELD: I. If there is a reasonable apprehension on the part of a party to
F
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 G
justice will not be done. 1578-C-DI
Abdul Nazar Madani v. State of Tamil Nadu 120001 6 SCC 204 and
Gurcharan Dass Chadha v. State of Rajasthan AIR (1966) SC 1418, relied
on.
H
558
SUPREME COURT REPORTS [2005] SUPP. 4

## Text

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A
JA YENDRA SARASWA THY SWAMI GAL, TAMIL NADU
v.
STATE OF TAMIL NADU AND ORS.
OCTOBER 26, 2005
B
[R.C. LAHOTI, CJ. AND G.P. MATHUR, J.]
Code of Criminal Procedure, 1973:
Section 406-Transfer of criminal case-Petition for-Criminal case
C pending against accused in Tamil Nadu Courts-Accused allegedly entered
into conspiracy for getting one 'S' murdered-While 'S' was in office two
persons armed with 'aruval' came there and caused multiple injuries to 'S'
who died later-State machinery took undue interest in securing conviction
of the accused by any means-Criminal prosecution launched against lawyers
D connected with the defence of the accused-Detention order passed against
I 6 co-accused soon efter grant of bail to the accused-Prosecution also
launched against persons expressing dissent against the accused-Bank
accounts of the Mutt frozen thereby paralyzing the religious and other
activities of the Mutt and other connected bodies-Held: The actions of the
prosecuting agency and the State machinery are responsible for creating a
E reasonable apprehension in the mind of the accused and other co-accused
that they would not get justice if the trial was held in the State of Tamil
Nadu-Hence, the criminal trial pending against the accused and other coaccused transferred to a place outside the State of Tamil Nadu i.e. Pondicherry
where the same language is spoken and, therefore, there would be no difficulty
F in examining witnesses and documents.
According to the prosecution, the petitioner had entered into a criminal
conspiracy with some other co-accused for getting the in-charge
Administrative Manager of the 'Devarajaswamy Devasthanam' murdered.
While the said in-charge Administrative Manager was sitting on a chair in
G his office two persons armed with an 'aruval' came there and caused multiple
injuries to him as a result of which he died. The petitioner was arrested and
a charge sheet against him and 24 co-accused was filed in the Principal
Sessions Court in the State of Tamil Nadu.
The petitioner filed the present Transfer Petition under Section 406 of
H
556
JAYENDRA SARASWATHYS\VAMIGAL, TAMIL NADU "· STATEOFTAMll. NADU
557
the Code of Criminal Procedure, 1973 seeking transfer of the sessions case A
pending against him to any other place outside the State of Tamil Nadu on the
following grounds:-
(i) The State machinery in Tamil Nadu had shown great zeal and had
made extraordinary efforts, much beyond what was required under the law, to
anyhow secure the conviction of the petitioner and to achieve that object had B
procured and fabricated false evidence.
(ii) Concocted and false cases had been registered against 15 co-accused
and detention order had been passed against them soon after grant of bail to
the petitioner.
(iii) The advocates appearing for the petitioner and other co-accused had
been put under great threat on account of lodging of false and fabricated
criminal cases against them and a situation had been created wherein they
might not be in a position to defend the petitioner properly.
c
(iv) The Mutt and other associated and connected trusts had 183 D
accounts in banks, which were all frozen by the Special Investigation Team
resulting in paralyzing the religious and other activities of the Mutt and other
connected bodies.
(v) Criminal cases had been lodged against some leading journalists of E
the country and other prominent personalities who had written articles
criticizing the arrest of the petitioner.
(vi) Thus, the petitioner seriously apprehended that he would not get a
fair trial in the State of Tamil Nadu.
Allowing the petition, the Court
HELD: I. If there is a reasonable apprehension on the part of a party to
F
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 G
justice will not be done. 1578-C-DI
Abdul Nazar Madani v. State of Tamil Nadu 120001 6 SCC 204 and
Gurcharan Dass Chadha v. State of Rajasthan AIR (1966) SC 1418, relied
on.
H
558
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A
G.X. Francis v. Banke Bihari Singh AIR (1958) SC 309, cited.
2. 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
B 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, Special
C Investigation Team and Police Inspector connected with the investigation even
went to the extent of prompting the approver 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 crimfoa'I cases registered against them from the local
D police to CBI. The police submitted charge-sheet against two junior lady
lawyers under various Sections of IPC including Section 201 lPC accepting
every word in the FIR lodged by the wife of the approver as correct; no offence
under the said provision is made out. Article 22(D, which finds place in Part
III of the Constitution of India dealing with Fundamental Rights, gives a
E guarantee to a person arrested and detained to be defended by a legal
practitioner of his choice. Section 303 of Code of Criminal Procedure, 1973
says that any person accused of an offence before a criminal court or against
whom proceedings arit instituted under the Code, may of right be defended by
a pleader of his choice. Even under the British Rule when Code of Criminal
PrQcedure 1898, was enacted, Section 340(1) thereof gave a similar.right to
F 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
G giving evidence against the accused in the court. Therefore, 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
H eliciting the truth. The constant fear of not causing any annoyance to the
JA YENDRA SARASWA THY SWAMIGAL, TAMIL NADU ''·STATE OFTAMIL NADU
559
prosecution witnesses specially those of the police department would loom A
large over their mind vitally affecting the defence of the accused. Passiμg of
the detention order against 16 co-accused soon after grant of bail tifthe
'•,
petitioner by this Court, 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 B
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 neither disturbed nor the public order was affected by the murder of
the deceased and the detention order was passed without any basis. Again, C
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 the deceased, leads to an inference that the State machinery is not
only interested in securing conviction of the petitioner and the other coaccused 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'
D
!_nd 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 E
people. This may deter anyone 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. F
[578-D-H; 579-A-H; 580-A-BJ
3. Taking into consideration the entire facts and circumstances of the
case and the material on record, it is held that the petitioner and other coaccused of the case have a reasonable apprehension that they will not get justice G
in the State of Tamil Nadu. It is clarified that no reflection on the district
judiciary in the State of Tamil Nadu is cast. 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 justice if the trial is held in any place inside
the State of Tamil Nadu. Therefore, the interest of justice requires that the H
560
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A trial may be transferred to a place outside the State of Tamil Na du.
[580-C-D[
4. 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
B which the witness wants to convey. The convenience of the prosecuting agency,
especially in a case where there are large number of witnesses and documents,
has also an important bearing. Therefore, the case may be 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
C the presiding judge would be familiar. The witnesses would not face much
inconvenience in going there. [580-G-H; 581-A-BI
Abdul Nazar Madani v. State of Tamil Nadu [200016 SCC 204, referred
to.
D
G.X. Francis v. Banke Bihari Singh AIR (1958) SC 309, cited.
CRIMINAL ORIGINAL JURISDICTION: Transfer Petition (Crl.) No. 134
of2005.
F.S. Nariman, Krishna Kumar, A. Shanmugam, Subhash Sharma and S.
E Karthikeyan for the Petitioner.
Dr. Rajeev Dhavan, Shanti Bhushan (NP), Ashok H. Desai, G.L. Sanghi
(NP), P.N. Narasimha, B. Kumar ?,nd Ms. Indira Jaisingh, R. Ayyam Perumal,
S. Vallinayagam, Prasnanth Venkatesh, M.A. Chinnasamy, Naresh Kumar, N.L.
Ganapathi, M. Sathyanarayanan, KS. Vaithianathan, Vinodh Kanna B., Mahesh
F Agarwal, Ms.Lupanlu Gangme1, Rishi Agrawala, Manu Krishnan, E.C. Agrawala,
Rutwik Panda, Pradeep Kumar Kar, Ashok K. Sadhu Khan, M.K.D. Namboodiry,
Ms. Sumita Hazarika, Hari Shankar K., T. Raja, M.A. Krishna Moorthy, D.Bharat
Kumar, Anand, Azim H. Laskar, Abhijit Sengupta, Ms.lndrani, Naveen R Nath,
Ms. Lalit Mohini Bhat, Ms. Anitha Shenoy and Ms.Hetu Arora for the
Respondents.
G
The Judgment of the Court was delivered by
G.P. MATHUR, J. This petition has been filed by Jayendra Saraswathy
Swamigal, Sankaracharya ofKanchi Kamakoti Peetam under Section 406 Cr.P.C.
seeking transfer of Sessions Case No. 197 of 2005 pending before the Principal
H Sessions Court, Chenglepet, to any other State,-out side the State of Tamil
JAYENDRA SARASWA THY SW AMI GAL, TAMIL NADU "· ST A TE OF TAMIL NADU (GP.MA THUR ,J] 56 J
Nadu. The respondents arrayed in the Transfer Petition are (I) State of Tamil A
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 B
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 C
p.m. on 3.9.2004 while he was in the office ofDevarajaswamy 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 persons were waiting outside and the assailants escaped on their
motorcycles. After the case was registered, necessary investigation followed
and several persons were arrested.
D
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 E
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 Peiition (Crl.) No. 6192 of 2004, which was allowed by this· F
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- G
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 of2005.
H
562
SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.
A
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,
B
much beyond what is required under the law to anyhow secure
the conviction of the accused and to achieve thar 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
c
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
D
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
E
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.
F
(iv) Concocted and false cases have been registered against 16 coaccused. 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
G
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
H
been created wherein they may not be in a position to defend the
JA YENDRA SARASWATHY SWAMIGAL, TAMIL NADU "· STATEOFTAMILNADU [G.P. MATHUR,J.] 563
accused properly, This will also have a general affect as other A
lawyers would feel hesitant to conduct the case on behalf of ihe
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 B
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 C
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 D
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 E
of Police, second by Shri Prem Kumar,}lead 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.
F
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 Yijayendra Saraswati Swamigal (junior Shankaracharya) and
Shri G.L. Sanghi, learned senior counsel for respondent No. 8. We have also G
heard Dr. Rajeev Dhavan, learned senior counsel, who has appeared for
respondent Nos. I 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.
H
564
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A
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
B 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
C House. We are, therefore, of the opinion that the petitioner or other coaccused 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
D 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
E 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
F 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
G 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
H case was adjourned to 8.4.2005 and thereafter to 11.4.2005. On the said day,
JAYENDRA SARASWATHYSWAMIGAL, TAMIL NADU ,., STATEOFTAMIL NADU [G.i' MATHUR, J] 565
while his cross-examination was going on, on the instructions of Shri Prem A
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 B
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 C
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),
D
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. Shanmugarn,
Advocate, wherein the aforesaid incident had been narrated, is correct. The E
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 F
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. G
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 H
566
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A 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
B 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
C 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
D 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.
E
I 0. 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,
F 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
G 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,
H namely, Revathy and Nathira Banu met him in the jail and asked him not to
JAYENDRASARASWATHYSWAM!GAL. TAMILNAD!Jv. STATEOFTAMIL NADU[G.P. MATHUR.]] 567
give any statement or evidence against the Shankaracharya and for this A
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 B
aforesaid report a case was registered as Crime No. 127 of2005 under Section
201 read with Section 109, 213E, 506(2) !PC 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, C
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
v. State of Tamil Nadu and Ors.) 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 D
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 E
disposed of accordingly. Consequently, the connected W.P.M.P. No.
6990 of2005 is closed."
11. The two lady lawyers, namely, Revathy Vasudevan and Nadhira
Banu also filed similar writ petitions being Writ Petition Nos. 19146 of2005
and 19147 of 2005 praying that a writ of mandamus be issued directing the p
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 !PC read with Sections 109, 201, 506
(2) !PC 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 G
on 24.6.2005 and paragraphs I, 5, 6 and 7 of the order passed by the High
Court are being reproduced below: -
"I. Petitioners herein are practicing Women Lawyers at Kancheepuram
and both of them are in the panel ofTaluk Legal Services Committee,
Kancheepuram. Misconstruing their visit to the sub-jail on 1.2.2005 H
A
B
c
D
E
F
G
568
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
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 of2005
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 20 I read with I 09,
- 213, 451 and 506(2) !PC, 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
H strongly urged that in case the version given in the FIR lodged by Smt. Chitra,
JAYENDRA SARASWATllY SWAMI GAL, TAMIL NADU •·. ST ATE OFT AMIL NADU [GP. MATHUR, J] 569
wife of Ravi Subramaniam, was correct there was no occasion for the public A
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 B
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 C
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 tyvo 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 lawylrs, D
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 E
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
20 I and 214 !PC, which are punishable with imprisonment for a term which F
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. G
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 20 I IPC. Institution of the criminal case
against the junior lawyers, whose seniors are appearing as counsel for the H
570
SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.
A 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
B 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
C 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
D Sankaracharya Swamigal Srimatam Samasthanam, represented by its Manager,
filed writ petition No. I 050 of 2005 impleading (I) 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 I to 3 from
E 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
j1,1dgment that the Manager of the Mutt was called at least 15. times for
F 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: -
G
"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.
H
JAYENDRA SARASWATHYSWAMIGAL, TAMILNADU,. STATE OFT AMIL NADU[G.P. MATHUR, J] 57 \
Therefore, I request that necessary steps may be taken immediately A
to freeze the account in the above reference No.