# K. ANBAZHAGAN v. THE SUPERINTENDENT OF POLICE AND ORS. ETC

- **Citation:** [2003] Supp. 5 S.C.R. 610
- **Court:** Supreme Court of India
- **Decided:** 2003-11-18
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-anbazhagan-v-the-superintendent-of-police-and-ors-etc-19597
- **Pages:** 24

## Headnote

A
B
K. ANBAZHAGAN
v.
THE SUPERINTENDENT OF POLICE AND ORS. ETC.
NOVEMBER 18, 2003
[S.N. VA~
VA AND H.K. SEMA, Jl]
Penal Code, 1860; Section 1208/Prevention of Corruption Act, 1988;
Section I 3(2) rlw Section 13(1) (e):
C
Trial of cases of corruption/conspiracy by Special Court-Trial Court
dispensed with personal appearance of accused on personal hardshipPetition for transfer of cases to another State on ground. that course of justice
being subverted-Another petition allegedly on same issue pending before
the High Court-Jurisdiction of Supreme Court-Held: Petitions filed before
D the High Court and Supreme Court under different provisions of /awJurisdiction of Supreme Court and High Courts under the provisions are
distinct and different-Proceedings in transfer petitions cannot be construed
as parallel proceedings-In the facts and circumstances of the case, prejudice
having been caused to the prosecution, reasonable apprehension of failure
of justice exist-Hence, Transfer Petitions allowed and cases transferred for
E trial in the State of Karnataka-State to constitute Special Court, to provide
security/requisite facilities to witnesses-Directions issued-Constitution of
India, 1950-Article 2 I-Code of Criminal Procedure, 1973-Sections 313
and 406.
Non-disclosure of facts as to pendency of similar matters before the
F High Court-Effect of-Held: non-disclosure of such fact for justified reasons
would not non-suit accused-petitioner to approach Supreme Court.
G
H
'Party to the proceedings' vis-a-vis 'Party interested'-Meaning of in
the context of Code of Criminal Procedure, 1973.
Evidence Act, I 872; Section I 54: Recalling of witnesses after their
examination/cross-examination-Necessity of-Held: Recalling of witnesses
cannot be allowed on ground of non-availability of the counsel due to his
preoccupation.
610
I
•
K. ANBAZHAGAN v. SUPDT. OF POLICE
611
Words and Phrases:
A
'party interested'-Meaning of in the context of criminal jurisprudence.
Two petitions have been filed under Section 406 Cr.P.C. for transfer of
certain cases from Special Court, Chennai to a Court of equal and competent
jurisdiction in any other State, on the alleged ground that the course of justice B
is being subverted. In these cases, respondents were charge-sheeted for
offences under Sections 1208 IPC, 13(2) r/w Section 13(1)(e) of the
Prevention of Corruption Act.
It was contended for the petitioners that a number of witnesses have
bee!I recalled for cross-examination on the ground of non-availability of the C
counsel as he was busy in other cases; that personal appearance of respondent
No.2 for examination was dispensed with by the Trial Court on ground of
physical hardship; and that the public prosecutor did not oppose the application.
On behalf of the respondents, it was contended that petitioners did not
have locus standi to file transfer petitions; that since petitioners did not D
di~close the fact regarding pendency of writ petitions befor~ the High Court
on identical issues, petitions are liable to be dismissed; that petitions had been
filed on ground of political vendetta against respondent No.2; and that merely
by declaring the prosecution witnesses hostile, no prejudice had been caused
to the case of prosecution; and that since transfer petitions have been filed
belatedly, the same are liable to be dismissed for !aches/negligence on the E
part of petitioners.
Allowing the transfer petitions with certain directions, the Court
HELD: 1.1. Non-disclosure of the fact about pendency of proceedings
before the High Court would not non-suit the petitioner to approach the F
Supreme Court with an application under Section 406 Cr.P.C. This Court
might have viewed seriously the conduct of the petitioners in not disclosing
about the proceedings pending in the High Court. However, it appears that
justice is not being done. The course of justice cannot be allowed to be
subverted. Further, even though some statements of facts made before the High
Court, are in parima

## Text

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A
B
K. ANBAZHAGAN
v.
THE SUPERINTENDENT OF POLICE AND ORS. ETC.
NOVEMBER 18, 2003
[S.N. VA~
VA AND H.K. SEMA, Jl]
Penal Code, 1860; Section 1208/Prevention of Corruption Act, 1988;
Section I 3(2) rlw Section 13(1) (e):
C
Trial of cases of corruption/conspiracy by Special Court-Trial Court
dispensed with personal appearance of accused on personal hardshipPetition for transfer of cases to another State on ground. that course of justice
being subverted-Another petition allegedly on same issue pending before
the High Court-Jurisdiction of Supreme Court-Held: Petitions filed before
D the High Court and Supreme Court under different provisions of /awJurisdiction of Supreme Court and High Courts under the provisions are
distinct and different-Proceedings in transfer petitions cannot be construed
as parallel proceedings-In the facts and circumstances of the case, prejudice
having been caused to the prosecution, reasonable apprehension of failure
of justice exist-Hence, Transfer Petitions allowed and cases transferred for
E trial in the State of Karnataka-State to constitute Special Court, to provide
security/requisite facilities to witnesses-Directions issued-Constitution of
India, 1950-Article 2 I-Code of Criminal Procedure, 1973-Sections 313
and 406.
Non-disclosure of facts as to pendency of similar matters before the
F High Court-Effect of-Held: non-disclosure of such fact for justified reasons
would not non-suit accused-petitioner to approach Supreme Court.
G
H
'Party to the proceedings' vis-a-vis 'Party interested'-Meaning of in
the context of Code of Criminal Procedure, 1973.
Evidence Act, I 872; Section I 54: Recalling of witnesses after their
examination/cross-examination-Necessity of-Held: Recalling of witnesses
cannot be allowed on ground of non-availability of the counsel due to his
preoccupation.
610
I
•
K. ANBAZHAGAN v. SUPDT. OF POLICE
611
Words and Phrases:
A
'party interested'-Meaning of in the context of criminal jurisprudence.
Two petitions have been filed under Section 406 Cr.P.C. for transfer of
certain cases from Special Court, Chennai to a Court of equal and competent
jurisdiction in any other State, on the alleged ground that the course of justice B
is being subverted. In these cases, respondents were charge-sheeted for
offences under Sections 1208 IPC, 13(2) r/w Section 13(1)(e) of the
Prevention of Corruption Act.
It was contended for the petitioners that a number of witnesses have
bee!I recalled for cross-examination on the ground of non-availability of the C
counsel as he was busy in other cases; that personal appearance of respondent
No.2 for examination was dispensed with by the Trial Court on ground of
physical hardship; and that the public prosecutor did not oppose the application.
On behalf of the respondents, it was contended that petitioners did not
have locus standi to file transfer petitions; that since petitioners did not D
di~close the fact regarding pendency of writ petitions befor~ the High Court
on identical issues, petitions are liable to be dismissed; that petitions had been
filed on ground of political vendetta against respondent No.2; and that merely
by declaring the prosecution witnesses hostile, no prejudice had been caused
to the case of prosecution; and that since transfer petitions have been filed
belatedly, the same are liable to be dismissed for !aches/negligence on the E
part of petitioners.
Allowing the transfer petitions with certain directions, the Court
HELD: 1.1. Non-disclosure of the fact about pendency of proceedings
before the High Court would not non-suit the petitioner to approach the F
Supreme Court with an application under Section 406 Cr.P.C. This Court
might have viewed seriously the conduct of the petitioners in not disclosing
about the proceedings pending in the High Court. However, it appears that
justice is not being done. The course of justice cannot be allowed to be
subverted. Further, even though some statements of facts made before the High
Court, are in parimateria with the facts stated before this Court, these G
petitions cannot be held as parallel proceedings. The petitions pending before
the High Court are under Article 226 of the Constitution and the Transfer
Petitions have been filed under Section 406 of the Code of Criminal Procedure.
The jurisdiction of the High Court under Article 226 of the Con~titution and
the jurisdiction of this Court under Section 406 Cr.P.C. are quite distinct H
612
SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.
A and different. This Court had already granted permission to the petitioner to
file petition and no application has been filed thereafter to revoke the
permission so granted. The locus standi of the petitioner cannot be challenged
on this count. [618-8-C-D; 619-G-H]
1.2. It cannot be said that the petitioner not being a party to the
B proceeding is not a "party interested", and has no locus standi to file the
present petition. The "party interested" has not been defined under Cr.P.C.
The word "party interested" is of a wide import and, therefore, it has to be
given a wider meaning. If it was the intendment of the legislature to give
restricted meaning then they would have used words to the effect, "party to
C the proceedings". When the legislature intended a "party to the proceedings"
to have a right of appeal it specifically so stated. The legislature, therefore,
keeping in view the larger public interest involved in a criminal justice system,
purposely used words of wider import in Section 406. Also it is well-settled
principle of law that statutes must be interpreted to advance the cause of statute
and not to defeat it. The petitioner being a political opponent, is vitally
D interested in the administration of justice in the State and is a "party
interested" within the meaning of sub-section (2) of Section 406 Cr.P.C.
['620-C-D-E-F-GJ
1.3. In a democracy, the political opponents play an important role both
inside and outside the House. They are the watchdogs of the Government in
E power. In that view of the matter, being a political opponent, the petitioner is
a vitally interested !larty in the run of the Government or in the administration
of criminal justice in the State. The petition lodged by such persons cannot
be brushed aside on the allegation of a political vendetta, if otherwise, it is
genuine and raises a reasonable apprehension of likelihood of bias in the
F dispensation of criminal justice system. [620-H; 621-A-B)
Sheonandan Paswan v. State of Bihar, [1987) I SCC 288; State of
Haryana and Ors., v. Bhajan Lal and Ors., [1992) Suppl. 1 SCC 335;
Gurcharan Das Chadha v. State of Rajasthan, (1966) 2 SCR 678; Mrs. Mane/ca
Sanjay Gandhi v. Ms. Rani Jethmalani, [1979) 4 SCC 167 and Abdul Nazar
G Madani v. State of Tamil Nadu, [2000) 6 sec 204, relied on.
1.4. The petitioner has made out a case that public confidence in the
fairness of trial is being seriously undermined. In the facts and circumstances
of the case, great prejudice appear to have been caused to the prosecution
which could culminate in grave miscarriage of justice. The witnesses who
H had been examined and cross-examined earlier should, on such a flimsy
K. ANBAZHAGAN v. SUPDT. OF POLICE
613
ground, never have been recalled for cross-examination. The fact that it is A
done after Respondent No.2 assumed 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 which is indicative of
how judicial process is being subverted. The Public Prosecutor was not
resorting to Section 154 of the Indian Evidence Act nor making any application
to take action in perjury against the witnesses also indicate that trial was not B
proceeding fairly. No attempt has been made to elicit or find out whether
witnesses were resiting because they were 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 C
of justice is being subverted. [628-D-E-F-G)
1.5. 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 D
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 are such as to create reasonable E
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.
[628-H; 629-A-B)
1.6. Even in a criminal prosecution when a witness is cross-examined
and contradicted with the leave of the court, by the party calling him, his p
evidence cannot, as a matter of law, be treated as washed off the record
altogether. It is for the Judge of fact to consider in each case whether as a
result of such cross-examination and contradiction, the witness stands
thoroughly discredited or can still be believed in regard to a part of his
testimony. But in the present case, the Public Prosecutor has not sought
permission from the Court by resorting to Section 154 of the Evidence Act G
even though the witnesses have resiled from their earlier testimony. In such
a situation the ~ubsequent testimony of the witnesses remains uncontroverted.
[629-F-G; 630-B-C)
Gura Singh v. State of Rajasthan, (2001) 2 SCC 205; State of Bihar v.
Laloo Prasad, (20021 9 SCC 626 and Pandappa Hanumappa Hanamar v. H
614
SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.
A State of Karnataka, (1997110 sec 197, relied on.
1.7. The Public Prosecutor did not oppose the application of Respondent
No.2 to dispense with her personal appearance on ground of personal hardship
and the trial Court allowed it. Be you ever so high the law is above you. The
grounds recited in the application were not at all mitigating circumstances
B to have granted dispensation of personal appearance. It was a ploy adopted to
circumvent the due process of law. 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. The conduct of the Public Prosecutor in not opposing such a
C frivolous application has to be deprecated. (630-G-H; 631-A; C; DJ
1.8. There was no delay and laches much less, inordinate delay in filing
the transfer petitions in the present case, which would non-suit the petitioner.
The cases pending on the file of the Sessions Judge, Special Court, Chenoa~
shall stand transferred to the State of Karnataka. The State of Karnataka
D shall constitute a Special Court under the Prevention of Corruption Act, in
consultation with the Chief Justice of the High Court of Karnataka.
(631-G-H; 632-A; DJ
E
Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC 740 and R.
Balakrishna Pillai v. State of Kera/a, (2000) 7 SCC 129, distinguished.
CRIMINAL APPELLATE JURISDICTION: Transfer Petition (CRL.)
Nos. 77-78 of2003
T.R. Andhyarujina, R. Shanmugasundaram, R. Mohan and V.G. Pragasam
for the Petitioner.
F
Altaf Ahmed, Additional Solicitor General, A.T.M. Ranga Ramanujam,
V.A. Bobde, S.Nanda Kumar, G.Saravana Kumar, M.Yogesh, Anuj Kumar
Srivastava, R.Suresh, Rakesh K. Sharma, K.V. Vijaya Kumar, V. Balaji and P.N.
Ramalingam for the Respondents.
K.K. Venugopal, K.V. Vishwanathan, Ms. Seema Bengani, N. Jothi, B.
G Raghunath, Atul Kumar Sinha and K.V. Venkataraman for the Respondents
No.2.
Dr. Subramanian Swamy, In-person for Crl.M.P. Nos. 3988-89/2003
The Judgment of the Court was delivered by
H
SEMA, J. These two petitions have been preferred under Section 406
K. ANBAZHAGAN v. SUPDT. OF POLICE [SEMA, J.]
615
of the Code of Criminal Procedure, seeking transfer of CC No. 7 of 1997 and A
CC No. 2 of 200 I on the file of the XI Addi. Sessions Judge (Special Court
No. I) 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 of2003. We
also propose to dispose of the petitions by this common judgment.
Brief facts leading to the filing of the present petition may be noticed.
B
In 1991-96, the second respondent )Jerein 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 C
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 !PC,
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 200 I, CC No. 2/200 I D
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 of2003) 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 E
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 Regulatk.1
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 F
in this case. In the general election held in May, 200 I 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 appointnlent. Consequently, on 21.9.2001, the
second respondent ceased to hold the office of Chief Minister. It is claimed G
that a nominee of the second respondent was sworn in as Chief Minister of
Tamil Nadu. 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. H
616
SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.
A Senior counsel S. Natarajan, who was appeaping 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,
B 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
C 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
Section 154 of the Indian Evidence Act. No attempt has been made to see that
Court takes action against them for perjury. It has also been alleged that the
presence of second respondent has been dispensed with during her
examination under Section 313 Cr.P.C. and instead a questionnaire was sent
D to second respondent and her reply to the questionnaire was sent to the court
in absentia. It is alleged that the procedure so 1 :!opted is unknown to the law
and the public prosecutor has not objected to the application of the respondent
No. 2 for dispensing her presence at the time of examination under Section
313 Cr.P.C. These are the main facts, which have been pointed out by the
E counsel for the petitioner.
We have heard Mr. T.R. Andhyarujina, learned senior counsel for the
petitioner. We have also heard Mr. Subramanium Swamy who was the original
complainant. We have heard Mr. K.K. Venugopal and Mr. V.A. Bobde and Mr.
ATM Ranga Ramanujam, learned senior counsel for the respondents. We
F have also heard Mr. Altaf Ahmed learned ASG.
Before we advert to the merit of the case, we may at this stage, dispose
of a preliminary objection raised by the counsel for the respondents, with
regard to the maintainability of the present petitions.
G
The main thrust of argument has been advanced by Mr. K.K. Venugopal,
learned senior counsel for respondent no. 2. The other respondents' counsels
have more or less adopted the arguments of Mr. Venugopal. It is contended
by Mr. Venugopal that the petitioner has filed Writ Petition Nos. 630 of 2002
and I 777 of 2002, praying for identical relief which have been heard extensively
H by the High Court of Madras at Chennai and the judgment has been reserved
K. ANBAZHAGAN v. SUPDT. OF POLICE [SEMA, J.]
617
on 19.2.2003. He submitted that the petitioner has filed the present petition A
before this Court without disclosing that similar petitions are pending before
the High Court of Madras and on this score alone the Transfer Petitions are
liable to be dismissed. He has further submitted that although the petitioner
was aware that the aforesaid two writ petitions were to be taken up for further
hearing on 6.2.2003, he has filed the present transfer petition on 5.2.2003 by
suppressing the fact that the grievances and facts raised in these petitions B
are the same as were before the High Court of Madras in the aforesaid two
writ petitions. Learned counsel has also invited our attention to paragraph I
of the counter statement of respondent No. 2 to show that the statement of
facts and grievances raised before the High Court of Madras in writ petition
Nos. 630 of 2002 and 1777 of 2002 are in pari-materia with the statement of C
facts and grievances raised before this Court in T.P. No. 77 of 2003. In this
connection, learned counsel particularly referred to statement of facts before
this Court in paras 3, 4, 7, 8, 9, 10, 13, 14, 15, 16, 17 and 18 which are stated
tobeinparimateriatoparas4,6,9, 10, 11, 12, 15, 17, 18, 19,20and21 in
writ peti~ion No. 630 of 2002. Learned counsel, therefore, urged that parallel
proceedipgs over the same statement of facts pending in the High Court, if D
allowed to be transferred to outside the jurisdiction of the High Court, the
majesty of the High Court would be greatly affected. It is further argued by
the counsel that the petitioner is trying ·to over reach the court by taking the
court for a ride, the conduct of which is highly reprehensible.
Reliance has been placed by Mr. Venugopal. Senior counsel for the
respondent on S.B. Mathur v. Matti Ullah, [1995] supp, 92 SCC 650. There,
the petitioner filed a writ petition in the High Court of Delhi seeking interim
order against his proposed transfer. The High Court merely issued notice but
E
had not granted any interim order. While that petition was pending the
petitioner filed another writ petition in J & K High Court without disclosing F
the fact of pendency of writ petition in the Delhi High Court and obtained
the interim order from J & K High Court and subsequently withdrew the writ
petition filed in the High Court of Delhi. It is in these circumstances, this
Court has stayed the interim order, passed by the J & K High Court, on the
ground that the petitioner obtained interim order without disclosing the fact G
that the writ petition is also pending before the Delhi High Court. Mr. Venugopal
also relied on the decision rendered in G. Narayanaswamy Reddy (dead) by
Lrs. v. Government of Karnataka, [1991] 3 SCC 261.In that case, the interim
orders of stay of dispossession from land were issued by courts in favour
of the landowners. This was a highly material fac.t for deciding the question
of delay in making the award under the Land Acquisition Act. This fact was H
618
SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.
A not disclosed by the petitioners in Special Leave Petitions and the fact was
highlighted by the counter affidavit filed on behalf of the respondents. It is
in these circumstances, this Court observed that relief under Section 136 of
the Constitution is discretionary. The petitioner who approaches this Court
for such relief must come with full disclosure of facts and on this ground the
B Special Leave Petitions were dismissed.
It would have been advisable for the petitioner to have informed this
Court about the proceedings in the Madras High Court. However, as is set
out in greater detail hereinafter, it appears that justice is not being done. In
fact it appears that the course of justice is being subverted. Thus even
C though this Court might otherwise have viewed the conduct, in not disclosing,
seriously we do not feel that, in this matter, on this ground, we can allow the
course of justice to be subverted. Further we find that even though some
statements of facts made before the High Court, are in parimateria .with the
facts stated before this Court, these petitions are not parallel proceedings.
The petitions pending before the High Court are under Article 226 of the
D Constitution and the Transfer Petitions have been filed under Section 406 of
the Code of Criminal Procedure. The jurisdiction of the high Court under
Article 226 of the Constitution and the jurisdiction of this Court under Section
406 Cr.P.C. are quite distinct and different.
It is also to be noticed that the prayer made before the High Court and
E · before this Court are also different. Before the High Court in writ petition No.
630 of 2002 the petitioner prayed the following reliefs:-
F
G
H
"I pray that this Hon'ble Court may be pleased to direct the
appointment of an independent experienced Lawyer as the Special
Public Prosecutor for the conduct of the prosecution case in C.C.No.
7 of 97 on the file of the XI Additional Sessions Judge (Special Court
I) Chennai, and C.C.No.2 of2001 on the file of the Learned Principal
Sessions Judge transferred to the file of XI Additional Sessions Judge
(Special Court I) Chennai pending disposal of the writ petition.
I, therefore, pray that this Hon 'ble Court may be pleased to issue
a Writ of Mandamus or any other appropriate order or direction in the
nature of a writ, directing the entrustment of C.C.No. 7 of 97 on the
file of the XI Additional Sessions Judge (Special Court I) Chennai,
and C.C.No. 2 of 200 I on the file of the Learned Priccipal Sessions
Judge (Special Court I) Chennai to the I st Respondent or any other
independent agency not under the control of the State Government
for:
K.ANBAZHAGAN v. SUPDT.OFPOLICE [SEMA,J.]
619
of Tamil Nadu, and pass such further order or orders as deem fit and . A
proper in the circumstances of the case and thus render justice.
In Writ Petition No. 1777 of 2002, the following reliefs are prayed for:
"In the above circumstances, it is most humbly prayed that this
Hon'ble Court may be pleased to issue a Writ of Mandamus or any B
other appropriate order or direction in the nature of Writ, appointing
one or more experienced Counsel as the prosecutor or prosecutors for
conducting the criminal case in C.C.No. 7 of97 pending on the file of
the XI Additional Sessions Judge cum Special Judge No. I, Chennai
and C.C.No. 2 of2001 (which has been ordered to be transferred from
the Learned Principal Special Judge Chennai to the XI Additional C
Sessions Judge cum Special Judge No.I, Chennai by this Hon'ble
Court in Crl. O.P. No. 21969 of2001 dated 10.1.2002) and directly
monitor the conduct of the above said cases under the powers of
Judicial Superintendence vested in the High Court and to pass such
further orders as deemed just and proper in the circumstances of the D
case and thus render justice."
In the present petitions before this Court the following reliefs are prayed .
"(a) transfer ofC.C.No. 7of1997 entitled to The Superintendent E
of Police v. J.Jayalalitha and Ors. and C.C.No.2 of 2001 entitled to
Additional Superintendent of Police v. J. Jayalalitha and Ors. on the
file of the XI Additional Sessions Judge (Special Court-I) Chennai in
State of Tamil Nadu to Court of equal and competent jurisdiction in
any other State.
(b) pass such other or further order or orders as this Hon'ble
Court may deem fit and proper in the circumstances of the case."
F
It is also contended by the counsel for the respondent, that having
known that the judgment in the writ petitions has been reserved by the High
Court on 19.2.2003, the petitioner obtained interim order before this Court on G
28th March, 2003 without disclosing the fact that the judgment in writ petitions,
before the High Court, has been reserved. It is true, that it was incumbent on
the part of the petitioner, to have disclosed the fact that the writ petitions are
also pending before the High Court, in which the judgment has been reserved.
But non-disclosure of this fact would not, for reasons set out above, nonsuit the petitioner to approach this Court with an application under Section H
620
SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.
A 406 Cr.P.C.
The second leg of argument what appears to be an argument of despair,
is of locus standi of the petitioner. In point of fact this question need not
detain us any longer because on 28.2.2003 this Court had already granted
permission to the petitioner to file the petition. No application has been taken
B out to revoke the permission so granted. Therefore, this question becomes
mere academic. However, since the question involved is of public importance,
we proceed to answer the question. Mr. V.A. Bobde, learned senior counsel,
appearing for respondent Nos. 3 and 4 in CC7 of 1997 and respondent No.3
in CC2 of 200 I contended that in view of the provision of sub-section 2 of
C Section 406 Cr. P.C. the petition is maintainable only when motion is moved
by the Attorney General or by "party interested". According to the counsel,
it is the "party interested" and not a "person interested" and, therefore, only
Attorney General or a "party interested" has locus standi to file application
and the petitioner not being a party to the proceeding is not a "party
interested", and has no locus standi to file the present petition. We are
D unable to accept this submission for more than one reason. It will be noticed
that the "party interested" has not been defined under Cr.P.C. The word
"party interested" is of a wide import and, therefore, it has to be given a wider
meaning. If it was the intendment of the legislature to give restricted meaning
then they would have used words to the effect, "party to the proceedings".
E In this behalf the wording of Article 139A of the Constitution of India may
be looked at. Under Article 139A the transfer can be if" the Supreme Court
is satisfied on its own motion or on the application made by the Attorney
General of India or by a party to any such case (emphasis supplied). Also
if the provisions of Chapter XXIX of the Criminal Procedure Code are looked
at, it is seen that when the legislature intended a "party to the proceeding"
F to have a right of appeal it specifically so stated. The legislature, therefore,
keeping in view the larger public interest involved in a criminal justice system,
purposely used words of a wider import in Section 406. Also it is well-settled
principle of law that statutes must be interpreted to advance the cause of
statute and not to defeat it. The petitioner being a political opponent, is vitally
G interested in the administration of justice in the State and is a "party interested"
within the meaning of sub-section 2 of Section 406 Cr.P.C. Even otherwise Mr.
Subramanium Swamy was the original complainant. He supports these transfer
petitions.
It has also been urged that the petitioner being a political opponent of
H respondent No.2, these petitions have been launched against respondent
K. ANBAZHAGAN v. SUPDT. OF POLICE [SEMA, J.]
621
no.2 on ground of political vendetta. This submission has also no force. In A
a democracy, the political opponents play an important role both inside and
outside the House. They are the watchdogs of the government in power. It
will be their effective weapon to counter the misdeeds and mischieves of the
government in power. They are the mouthpiece to ventilate the grievances of
the public at large, if genuinely and unbiasedly projected. In that view of the
matter, being a political opponent, the petitioner is a vitally interested party B
in the run of the government or in the administration of criminal justice in the
State. The petition lodged by such persons cannot be brushed aside on the
allegation of a political vendetta, if otherwise, it is genuine and raises a
reasonable apprehension of likelihood of bias in the dispensation of criminal
justice system. This question has been set at rest by this Court in Sheonandan C
Paswan v. State of Bihar, [ 1987] I SCC 288 SCC p. 318, para 16), where it is
said:
"It is a well established proposition oflaw that a criminal prosecution,
if otherwise justifiable and based upon adequate evidence does not
become vitiated on account of ma/a fides or political vendetta of the D
first informant or the complainant." .
This decision was reiterated in State of Haryana and Ors. v. Bhajan Lal and
Ors., [1992] Supp. I SCC 335.
In the present case, in our view, the petitioner has raised many justifiable E
and reasonable apprehensions of miscarriage of justice and likelihood of bias,
which would require our interference in exercise of our power under 'section
406Cr.P.C.
At this stage, we may notice few decisions of this Court with regard to
the scope of Section 406 Cr.P.C. In Gurcharan Das Chadha v. State of F
Rajasthan, [1966] 2 SCR 678 at SCR p.686, this Court observed as under:-
"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 inevitable fail. He is
entitled to a transfer if he shows circumstances from which it can be G
inferred that he entertains an apprehension and that it. is reasonable
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 H
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suffice. The Court has further to see whether the apprehension is
reasonable or not. To judge of the reasonableness of the apprehension
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 Mrs. Maneka Sanjay Gandhi v. Ms. Rani Jethma/ani, (1979) 4 SCC
167, this is what this Court has said in paragraph 2:
"Assurance of a fair trial is the first imperative of the dispensation of
justice and the central criterion for the court to consider when a
motion for transfer is made is not the hypersensitivity or relative
convenience of a party or easy availability of legal services or like
mini-grievances. Something more substantial, more compelling, more
imperilling, from the point of view of public justice and its attendant
environment, is necessitous if the Court is to exercise its power of
transfer. This is the cardinal principle although the circumstances may
be myriad and vary from case to case. We have to test the petitioner's
grounds on this touchstone bearing in mind the rule that normally the
complainant has the right to choose any court having jurisdiction and
the accused cannot dictate where the case aga!nst him should be
tried. Even so, the process of justice should not harass the parties
and from that angle the court may weigh the circumstances.
In Abdul Nazar Madani v. State o/Tamil Nadu, (2000] 6 SCC 204, this
court pointed out in paragraph 7 at page sec p.210 as under:-
"The purpose of the criminal trial is to dispense fair and impartial
justice uninfluenced by extraneous considerations. When it is shown
that public confidence in the fairness of a trial would be seriously
undermined, any party can seek 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 impart.ial 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
K. ANBAZHAGAN v. SUPDT. OF POLICE [SEMA, J.]
623
decided on the basis of the facts of each case. Convenience of the A
parties including the witnesses to be produced at the trial is also a
relevant consideration for deciding the transfer 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 B
means the convenience of the prosecution, other accused, the
witnesses and the larger interest of the society."
Reverting to the facts of the case, respondent no.2 is the Chief Minister
of Tamil Nadu. Respondent Nos.3, 4 and 5 are her close relatives or close
associates. In CC 7 of 1997 and CC 2 of 2001 she has been arraigned as C
accused No. I. In this petition serious contentions have been raised from
paragraph 25 to paragraph 33. These are extracted:
"25. It is submitted that the 2nd Respondent being the Chief Minister
of Tamil Nadu, the cases pending against her have to be entrusted to
an independent agency. I submit that the police officers who are under D
the control of the State Government cannot be expected to prosecute
the cases against the 2nd Respondent diligently. In fact there will be
every attempt to save the 2nd Respondent and others from punishment.
Similarly the law officers appointed by the State Government also
cannot be in charge of the cases pending against the 2nd Respondent
and others.
E
26. It is submitted that after nearly 7 months of lull the trial in the Rs.
66.65 crores disproportionate wealth case in C.C.No. 7/97 against the
2nd Respondent Chief Minister Ms. J. Jayalalitha and others resumed
on the 7-11-2002. In this connection it is pertinent to point out' that
it is common knowledge that number of witnesses have been cross- F
examined before the trial came to a pause due to reconstitution of the
Special Courts. When the trial resumed on 7-11-2002 Indian Bank
Official Shri A.R. Arunachalam was cross examined. On his chief
examination which took place on 16-6-2000 Shri Arunachalam was
cited as a witness by the DVAC. He was an official of the Indian Bank G
at the relevant point of time. He was cross examined on the accounts
maintained by Mrs. Sasikala a close associate of Ms. J. Jayalalitha as
well as the accounts maintained by Sasikala's relatives.
27. It is submitted that it is ascertained that another witness Shri R.
Krishnamoorthy of Saidapet who was working as a Section officer in H
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the Information and Tourism Department of Government of Tamil
Nadu at the relevant point of time was also cross examined. In his
chief examination on 31-5-2000 Shri R. Krishnamoorthy had deposed
that Shri Natarajan, husband of Sasikala joined the social welfare
department as a Publicity Assistant on 13-5-1970 and he became an
information and Public Relation Officer on 13-11-1970. He further
deposed in his chief examination that Shri Natarajan was in the said
post till 1976 till the abolition of the post. In 1980 Shri Natarajan got
back the post and he became a Deputy Director in 1988. Shri R.
Krishnamoorthy has clearly deposed in his chief examination that Shri
Natarajan husband of Sasikala had given Mrs. Sasikala's name as the
PPF nominee and Shri Natarajan obtained a scooter advance apart
from a housing loan of Rs. 1,84, 700 Shri Natarajan also obtained a car
loan of Rs. 80,000 in the year 1987. However on the cross examination
held on 7-11-2002 the witness ofShri R. Krishnamoorthy said that he
did not tender any evidence regarding the nomination of PPF account
of Shri Natarajan. The witness also said in his cross examination that
he did not know the dates on which Shri Natarajan applied for Scooter
loan or when he obtained the loan amount. The witnesses went on
· to say that he did not know when Shri Natarajan applied for housing
loan and when it was sanctioned.
28. It is submitted that on 8-11-2002 P.W. 151 Mansoor Ahamed was
cross examined. On 11-11-2002 P.W. 148 Mohan who is running the
business of Automobile upholstery turned hostile during his crossexamination. On 11-11-2002 itself P.W. 196 Hajaj Ahmed, a tailor who
was entrusted with the task of tailoring the marriage dress of 5th
Respondent herein/the fourth accused was cross-examined. The fourth
accused Shri Sudhagaran is the sister's son of the second accused
Mrs. Sasikala. On 12.11.2002 P. W 184 a tourist car operator was crossexamined. On the subsequent day of 13.11.2002 P.W. 147 Madan Lal,
P.W. 186 Chaiapathy Rao and P.W. 219 R.S. Usman were crossexamined. The trial stood adjourned to 18.11.2002. The Special Judge
has ordered summons as per the process list as prepared by the
special Court.
29. On 18.11.2002 five witnesses were recalled and cross-examined by
the counsel for the accused. The five witnesses who were examined
on this date were P.W. 127 Rajseshwari, P.W. 180 Suseela. P.W.143
Geethalakshmi, P. W. 174 Mani and P.W. 206 Abdul Jaffar. Trial
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K. ANBAZHAGAN v. SUPDT. OF POLICE [SEMA, J.]
625
continued on 19.11.2002 and two witnesses were examined. P. W. 171 A
Abdul Razack, Village Administrative Officer of Thiruthuraipoondi
village was examined on that date. The other witness who was examined
on the said day was P.W. 234 Mohammed Asumathulla Hussain who
is Block Development Officer of Siruvathoor village in Thiruporur
Taluk. The next date of effective proceedings were on 2.12.2002 on B
which date four more witnesses were examined. They were P.W. 183
Ramesh, P.W. 198 Jayaraman, P.W. 216 Naziruddin and P.W. 218 V.M.
Somasundaram.
30. Similarly during the trial at the end of January 2003, P.W. 237 Shri
S.S Jawahar, l.A.S. formerly working as Deputy Secretary who was C
examined as prosecution witness in the years 2000 was recalled at the
instance of the accused and was cross examined. In that cross
examination he has stated that what he has deposed in the Chief
Examination in the year 2000 was under pressure.