Supreme Court of India

JAYENDRA SARASWATHY SWAMIGAL, TAMIL NADUversusSTATE OF TAMIL NADU AND ORS.

Citation: 2005 INSC 528
Decided: 26 October 2005
Disposal: Appeal(s) allowed
Bench: R C LAHOTI

Holding

The petitioner and co‑accused have a reasonable apprehension of not receiving a fair trial in Tamil Nadu, warranting transfer of the case to Pondicherry.

Summary

Jayendra Saraswathy Swamigal, head of the Kanchi Mutt, was charged with conspiracy to murder the in‑charge manager of Devarajaswamy Devasthanam. He and 24 co‑accused filed a transfer petition under Section 406 of the CrPC, alleging that the Tamil Nadu State machinery was fabricating evidence, intimidating defence counsel, freezing the Mutt’s bank accounts, and using the Goondas Act to detain co‑accused, thereby creating a reasonable apprehension of a fair trial. The Supreme Court held that these actions amounted to a genuine threat to justice and that the apprehension was reasonable. Considering the language of witnesses and convenience, the Court ordered the trial to be transferred to Pondicherry, where Tamil is spoken. The petition was allowed.

Issues considered

Whether the petitioner has a reasonable apprehension of denial of justice justifying transfer under Section 406 CrPC.
Whether the actions of the State machinery (fabricated evidence, threats to counsel, freezing of accounts, detention orders) constitute sufficient ground for transfer.
Whether statements by political leaders and media prosecutions affect the fairness of the trial.
Whether language considerations and convenience of witnesses justify transferring the case to a different jurisdiction.

Legislation cited

Code of Criminal Procedure, 1973s. 102, s. 199(2), s. 277, s. 303, s. 321, s. 340(1), s. 406
Indian Penal Code, 1860s. 109, s. 201, s. 211, s. 214, s. 451, s. 500, s. 506(2)

Subjects

Transfer of criminal caseSection 406 CrPCreasonable apprehensionfair trialstate machinery biasthreats to defence counselfreezing of bank accountsGoondas Actlanguage of witnessesKanchi Muttmurder conspiracy

Judgment

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 co-
accused 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.
c
(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.

(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.
F
Allowing the petition, the Court

HELD: I. If there is a reasonable apprehension on the part of a party to
a case that justice may not be done, he may seek transfer of the case. The
apprehension entertained by the party must be a reasonable one and the case
cannot be transferred on a mere allegation that there is apprehension that 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 SARASWATHY 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 D
only interested in securing conviction of the petitioner and the other co-
accused but also to bring to a complete halt the entire religious and other
activities of the various trusts and endowments and the performance of 'Pooja'
!_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 co-
accused 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 SARASWATHY SW AMI GAL, TAMIL NADU "· ST ATE 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
generally believed to be correct and thus the accused stand
D 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
investigation and submission of charge-sheet, and, this was given
E 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.
(iv) Concocted and false cases have been registered against 16 co-
F accused. 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
been created wherein they may not be in a position to defend the
H
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 co-
accused 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 D
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),
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.

I 0. There is some other material to show threat to lawyers. One Mrs.
E
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
568 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 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
B case was registered against both the petitioners in crime No. 127 of
2005 for the offences punishable under Sections 20 I read with I09,
- 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 ........... ..
c 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
D 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.
E
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.

F 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
G 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. I050 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. I on the file of your
bank."

.The respondent State sought to justify the action of freezing of the accounts
under Section 102 Cr.P.C. After detailed consideration of the matter the High
Court recorded its findings on the relevant issues and paragraphs 44 and 46 B
thereof are being reproduced below: -

"44. The scope and applicability of Section 102, Cr.P.C. is under rare
and exceptional circumstances and is to be applied only to the assets
of the accused, which are the direct outcome of the crime and not to
stifle the activities of the Mutt which is an institution unconnected C
with the offence. The power which is vested for a particular purpose
cannot be stretched to irrelevant matters and to extremes and to a
breaking point, in the event of which, the Court is compelled to
interfere. Discretion to use the power should be used and exercised
cautiously, failing which, it becomes misuse of discretion and tainted D
with arbitrariness.

46. The Mutt is an organization of religious faith of innumerable
people. So also is 'the Church, Mosque, Wakf, etc. There are several
Endowments, Trusts and philanthropic activities attached to these
organizations over which several devotees have. personal interest, E
faith and sentimental devotion. One may or may not agree with the
respective faith or belief of others. But they have a right to establish
and maintain institutions for religious and charitable purposes within
the framework of law and such right is granted as a fundamental right
under the Constitution vide Article 26. Such an organization cannot
be paralysed or closed down virtually by sending g letter purporting F
to act under Section 102, Cr.P.C., only for the reason that the Head of
the Mutt and few office bearers are alleged to be involved in some
offences. A word of caution to the Special Investigation Team: By all
means, take action in the criminal cases against the indicted individuals
with a single-minded determination if you feel convinced about their G
guilt. No one is above the law. But if you divert and deviate from that
direction unmindful of the rights of innocent devotees of the Mutt,
it would result not only in diluting the prosecution, but also cast a
deep shadow on it. If there is anything wrong with the administration
of the Mutt, it is for the H.R. and C.Ec Department which has to
comply with the procedure under the Act and to look after the said H
572 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A issues in tenns of the provisions of the Act and it is not for the police
to interfere with the functions of the Mutt while investigating a case
of murder or assault. Even if any commission or omission amounting
to a criminal misconduct is brought to light in so far as the administration
of the Mutt is concerned in the opinion of the H.R. & C.E. Department,
it may be open to the H.R. & C.E. Department to file a complaint
B before the police for appropriate action against the individuals
concerned. It is not for the Special Investigation Team dealing with
a murder and assault case to plunge into the accounts of the Mutt,
and paralyse its functions by invoking Section I 02, Cr.P.C."

C 14. The High Court accordingly held that the impugned action of the
Chief Investigating Officer, SIT in invoking Section I 02 Cr.P.C. for freezing of
the accounts of the Mutt is ultra vires the said provision, illegal and liable
to be set aside, subject to the direction to the petitioner that they shall submit
a statement of accounts pertaining to all bank deposits to the third respondent
once in a month till the completion of the trial.
D
15. Dr. Dhavan, learned senior counsel appearing for the respondents
sought to justify the freezing of the accounts on the ground that the petitioner
had hatched conspiracy to get Sankararaman murdered and large amount of
money was being withdrawn from the banks to finance the hirelings. We are
not impressed by the submission made by Dr. Dhavan. The alleged conspiracy
E to commit the murder of Sankararaman culminated with his murder, which took
place on 3.9.2004 and thereafter even according to the own case of the
prosecution no further offence has been committed in pursuance of the said
conspiracy. The directions for freezing the accounts were issued some time
in 2005. It is also important to note that the order of the High Court allowing
F the writ petition and setting aside the direction issued regarding freezing of
the accounts has attained finality as the same has not been challenged in any
higher forum. As rightly observed by the High Court an organization (Mutt)
cannot be paralysed or closed down by issuing a direction under Section I02
Cr.P.C. only for the reason that the head of the Mutt and few office bearers
are alleged to be involved in some offence. The freezing of all the accounts
G of the Mutt and its associated trusts and endowments is a clear pointer to
the fact that the State machinery anyhow wants to paralyse the entire working
of the Mutt and the associated trusts and endowments in order to put
pressure upon the petitioner and other co-accused who are in any manner
connected with the Mutt so that they may not be able to defend themselves.
H It is indeed surprising that in spite of clear language used in sub-Section (I)
JAYENDRA SARASWATHYSWAMIGAL, TAMILNADU•. STATEOFTAMIL NADU[G.P. MATHUR,J.] 573

of Section I02 Cr.P.C. to the effect-any police officer may seize any property A
which may be alleged or suspected to have been stolen, or which may be
found under circumstances which create suspicion of the commission of any
office-all the 183 accounts were frozen merely on the ground that the head
-·· of the Mutt was involved in the murder case. The action of freezing the
accounts demonstrates as to what extent the State machinery can go while
prosecuting the petitioner in the Sankararaman murder case. B

16. Another circumstance pointed out by the learned counsel for the
petitioner is the invocation of Goondas Act against 16 co-accused of the
case, including N. Sundaresan (respondent No. 7) and M.K. Raghu (respondent
No. 8) between 13th to 25th January, 2005, while they had still not been
granted bail in the present murder case. N. Sundaresan is a Gold Medalist of
c
B.Com. and retired as Class I Officer in the Reserve Bank of India. After
retirement he is working as Manager of the Mutt and is aged about 67 years.
The detention order was challenged by these accused by filing Habeas
Corpus petition No. 79 etc. of 2005 in Madras High Court and the same was
allowed on 5.5.2005 and all the detention orders were quashed. The High D
Court observed as under in its judgment: -

"In spite of our hectic search, we are unable to find any material either
through some documents or through some statements from the public
to show that due to the ground incident, there has been a feeling of
::. .
insecurity among the people who are residents of the local area. E
Similarly, no single materials has been placed before the detaining
authority to indicate that even tempo of life was affected or that the
people in the locality got afraid or felt insecure or that there was
public disorder. Nobody speaks about the apprehension that even
tempo of the community got endangered F
In the absence of any material to show that there was disturbance to
the public order in the public place and the people got panic due to
the said incident, we are at loss to understand as to how the detaining
authority could uniformly state in all the detention order: "by
committing the above describing crime in a public place, he has G
created fear and panic and a feeling of insecurity in the minds of the
1
people of the area and thereby acted in a manner prejudicial to the
maintenance of public order.

......... that the conclusion arrived at by the detaining authority as
mentioned in the grounds of detention totally contradicts the case of H
574 SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A the sponsoring authority."

(the word "ground incident" has been used for the murder case of
Sankararaman)

17. Dr. Rajeev Dhavan, learned senior counsel for the respondents, has
B submitted that against the judgment of the High Court the Prohibition and
Excise Department, Tamil Nadu, has filed a Special Leave Petition in the
Supreme Court on which notice has been issued both on the petition and also
on the stay application on 22.8.2005. Be that as it may, the date of passing
of the detention order is quite relevant. This Court granted bail to the petitioner
Jayendra Saraswathi on 10th January, 2005 and the detention orders have
C been passed between 13th to 25th January, 2005, while these 16 co-accused
were still in custody in the murder case. It is not possible to lightly brush
aside the contention of the learned counsel for the petitioner that the aforesaid
detention orders were passed only to pre-empt the release from custody of
these accused as a result of bail being granted to them, as some of them
D would have claimed parity with the order of bail granted to the petitioner
Jayendra Saraswathi by the Supreme Court.

18. Shri G.L. Sanghi, learned senior counsel forthe accused M.K. Raghu
(respondent No. 8) has submitted that another case as Crime No. 289 of 2005
has been registered against respondent Nos. 7, 8 and I0 under Section
E 20(b )(ii) of NDPS Act on the basis of the alleged statement of one Agilan @
Sait, who was allegedly arrested on 22.4.2005 near bus stand Chenglepet for
being in possession of 3 Kg. of Ganja. According to the learned counsel a
persistent attempt is being made by the State machinery to implicate the
accused in several cases so that they may not be in a position to effectively
defend themselves in the murder case of Sankararaman.
F
19. Shri Nariman, learned senior counsel for the petitioner has also
submitted that not only the State machinery is being used to cause harassment
to the accused in the murder case in every possible manner but even those,
who have written any kind of article or have given any press statement or
G interview criticizing the action of the State in arresting and involving the
petitioner Jayendra Saraswathi in the murder case of Sankararaman, have not
been spared and criminal cases have been lodged against them. He has placed
before the Court copies of the complaints which have been filed under
Section 199(2) Cr.P.C. against Shri Murli Manohar Joshi, former Union Minister
for Human Resources Development, Shri Karunanidhi (President, DMK and
H formerChiefMinisterofTamil Nadu), Shri H. Raja, MLA and Shri Gurumurthi,
JAYENDRA SARASWATHYSWAMIGAL, TAMIL NAOUv. STATE OF TAMIL NADU(G.P. MATHUR,J.j 575

a journalist for their prosecution under Section 500 !PC. These papers show A
that the City Public Prosecutor, Chennai has filed separate complaints in
accordance with Section 199(2) Cr.P.C. against Shri Murli Manohar Joshi, Shri
Karunanidhi, Shri H. Raja and Shri Gurumurthi for having made statements
against the functioning of the Government of Tamil Nadu intending to hann
the reputation of the Chief Minister of the State. Shri Gurumurthi filed writ B
petition No. 5835 of2005 in the Madras High Court for quashing of the FIR
and the charge-sheet filed against him and an order has been passed staying
his arrest. Learned counsel has submitted that filing of the complaints under
Section 500 !PC against these persons shows that even expressing any kind
of dissent against the prosecution of the petitioner either in an article which
is published in a newspaper or by giving interview to media or a press C
statement is not being tolerated in the State of Tamil Nadu and by launching
prosecution an atmosphere of threat and fear has been created to stifle any
kind of dissent. According to the learned counsel the filing of the complaints
amounts to violation of the fundamental rights of free speech guaranteed
under the Constitution. Dr. Dhavan, learned counsel for the State has submitted
that if any defamatory statement is made maligning the reputation of the Chief D
Minister a prosecution under Section 500 !PC can certainly be launched and
as such no adverse inference can be drawn merely because a complaint has
been filed against those who are holding high political offices or some

- journalists.

20. Shri Nariman has also submitted that an amount of Rs.5.00 lakhs was
paid by way of solatium by the Chief Minister to Padma Sankararaman, widow
E

of Sankararaman (deceased) in the Secretariat building on 24. 11.2005, which
, event was widely covered in the media. Just five days thereafter Padma
Sankararam11n identified respondent Nos. 12 and 13 in a test identification
parade as they are alleged tQ have gone to her house enquiring about the F
deceased. Learned counsel has submitted that there is no occasion for paying
an amount ofRs.5.00 lakhs from public exchequer to the widow of the deceased
of a murder case. Ordinarily, the State pays compensation or some monetary
help to victims of natural calami.ty like flood, earthquake, cyclone, etc., or to
family members of public servants who are killed in the discharge of their G
'l official duty. After payment of this heavy amount of money to the widow of
the deceased, it is urged, the widow of the deceased can go to any extent
and would speak whatever the prosecution agency wants her to say. The fact
that an amount of Rs.5.00 lakhs was paid to the widow of the deceased
Sankararaman on 24.11.2004 m the Secretariat building, which was widely
covered in the media, is not disputed from the side of the State. H
576 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A 21. Shri Shanti Bhushan, learned senior counsel for respondent No. 6
Ravi Subramaniam (approver) has strongly opposed the prayer for transfer of
the case from the State of Tamil Nadu. Learned counsel has submitted that
that there is nothing wrong if the Chief Minister, who is also holding the
Home portfolio, makes a statement on the floor of the House, specially where
B the case had generated wide publicity and was being reported in various
newspapers and media. Learned counsel has further submitted that in case the
accused has any genuine apprehension that they will not get a fair trial before
a particular sessions judge, they can approach the High Court and seek
transfer to some other Sessions Judge but there is no reason at all to condemn
the entire judiciary of the State of Tamil Nadu. Learned counsel has also urged
C that over 370 prosecution witnesses have been cited in the charge-sheet and
while judging the apprehension of the accused the inconvenience, which may
result to the prosecution in the event of transfer of the case to another State,
cannot be overlooked. Ms. Indira Jaisingh, who has appeared for Padma
Sankararaman (widow of the deceased Sankararaman) has submitted that all
the prosecution witnesses are Tamil speaking and various documents
D pertaining to the case are also in the Tamil language. There being no allegation
against the concerned Sessions Judge, it is contended that there is absolutely
no ground to transfer the case outside the State of Tamil Nadu. Learned
counsel has placed strong reliance on Abdul Nazar Madani v. State of Tamil
Nadu and Anr., [2000] 6 SCC 204, wher~ this Court made the following
E observations in paragraphs 7 and 8 of the report: -
"The purpose of the crimin8.l trial is to dispense fair and impartial
-
justice uninfluenced by extrar.eous consideration. When it is shown
that public confidence in th1~ fairness of a trial would be seriously
undermined, any party can se_ek the transfer of a case within the State
F under Section 407 and anywhere in the country under Section 406
Cr.P.C. The apprehension of not getting a fair and impartial inquiry or
trial is required to be reasonable and not imaginary, based upon
conjectures and surmises. If it appears that the dispensation of criminal
justice is not possible impartially and objectively and without any
bias, before any court or even at any place, the appropriate court may
G transfer the case to another court where it feels that holding of fair
and proper trial is conducive. No universal or hard and fast rules can
be prescribed for deciding a transfer petition which has always to be
decided on the basis of the facts of each case.

Convenience of the parties including the witnesses to be produced at
H
JAYENDRASARASWATHY SWAMIGAL, TAMIL NADU '· STATE OFT AMIL NADU[G.P. MATHUR,!.] 577

the trial is also a relevant consideration for deciding the transfer A
petition. The convenience of the parties does not necessarily mean
the convenience of the petitioners alone who approached the court
on misconceived notions of apprehension. Convenience for the
purposes of transfer means the convenience of the prosecution, other
accused, the witnesses and the larger interest of the society.
B
The mere existence of a surcharged atmosphere without there
being proof of inability of holding fair and impartial trial cannot be
made a ground for transfer of a case. The alleged communally
surcharged atmosphere has to be considered in the light of the
accusations made and the nature of the crime committed by the C
accused seeking transfer of his case. It will be unsafe to hold that as
and when accusations are made regarding the existence of a surcharged
communal atmosphere, the case should be transferred from the area
where existence of such surcharged atmosphere is alleged. The
Supreme Court had not concluded so generally in Francis Case (G.X
Francis v. Banke Bihari Singh AIR (1958) SC 309, explained and D
distinguished)."

22. Learned counsel for the petitioner in support of his submission has placed
reliance on the following observations made by this Court in Gurcharan Dass
Chadha v. State of Rajasthan, AIR (19660 SC 1418:-
E
"A case is transferred if there is a reasonable apprehe_nsion on the
part of a party to a case that justice will not be done. A petitioner is
not required to demonstrate that justice will inevitably fail. He is
entitled to a transfer if he shows circumstances from which it can be
inferred that he entertains an apprehension and that it is reasonable F
in the circumstances alleged. It is one of the principles of the
administration of justice that justice should not only be done but it
should be seen to be done. However, a mere allegation that there is
apprehension that justice will not be done in a given case does not
suffice. The Court has further to see whether the apprehension is
reasonable or not. To judge the reasonableness of the apprehension G
the state of the mind of the person who entertains the apprehension
is no doubt relevant but that is not all. The apprehension must not
only be entertained, but must appear to the Court to be a reasonable
apprehension."

In K. Anbazhagan v. Superintendent of Police & Ors., (2004) 3 SCC 767, it H
578 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A was held as under: -
"Free and fair trial is sine qua non of Article 21 of the Constitution.
It is trite law that justice should not only be done it should be seemed
to have been done. If the criminal trial is not free and fair and not free
from bias, judicial fairness and the criminal justice system would be
B at stake shaking the confidence of the public in the system and woe
would be the rule of law. It is important to note that in such a case
the question is not whether the petitioner is actually biased but the
question is whether the circumstances are such that there is a
reasonable apprehension in the mind of the petitioner."

C The principle laid down in these cases is more or less the same. If there is
reasonable apprehension on the part of a party to a case that justice may not
be done, he may seek transfer of the case. The apprehension entertained by
the party must be a reasonable one and the case cannot be transferred on
a mere allegation that there is apprehension that justice will not be done.
D
23. We have discussed above many facets of the case which do show
that the State machinery in Tamil Nadu is not only taking an undue interest
but is going to any extent in securing the conviction of the accused by any
means and to stifle even publication of any article or expression of dissent
in media or press, interview by journalists or persons who have held high
E positions in public life and are wholly unconnected with the criminal case.
The affidavits and the documents placed on record conclusively establish
that a serious attempt has been made by the State machinery to launch
criminal prosecution against lawyers, who may be even remotely connected
with the defence of the accused. The Superintendent of Police, SIT and police
p inspector connected with the investigation even went to the extent of
prompting the approver Ravi Subramaniam to make insinuation against a very
senior counsel, who has been practicing for over 43 years and is appearing
as counsel for the petitioner. The other counsel had to file writ petitions in
the Madras High Court for seeking a direction for transferring investigation
of the criminal cases registered against them from the local police to CBI. The
G police submitted charge-sheet against two junior lady lawyers under various
sections of !PC including Section 20 I IPC when even accepting every word
in the FIR lodged by Smt. Chitra wife of Ravi Subramaniam (approver) as
correct, no offence under the said provision is made out. Clause (I) of Article
22, which finds place in Part III of the Constitution of India dealing with
H Fundamental Rights, gives a guarantee to a person arrested and detained to
JA YENDRA SARASWA THY SWAMIGAL, TAMIL NADU ''· ST ATE OFT AMIL NADU [G.P. MA THUR, J.] 579

be defended by a legal practitioner of his choice. Section 303 of Code of A
Criminal Procedure says that any person accused of an offence before a
criminal court or against whom proceedings are instituted under the Code,
may of right be defended by a pleader of his choice. Even under the British
Rule when Code of Criminal Procedure 1898, was enacted, Section 340(1)
thereof gave a similar right to an accused. It is elementary that if a lawyer B
whom the accused has engaged for his defence is put under a threat of
criminal prosecution, he can hardly discharge his professional duty of defending
his client in a fearless manner. A senior and respected counsel is bound to
get unnerved if an insinuation is made against him in court that he approached
the wife of a witness for not giving evidence against the accused in the court.
From the material placed before us we are primafacie satisfied that a situation C
has arisen in the present case wherein the lawyers engaged by the petitioner
and other co-accused cannot perform their professional duty in a proper and
dignified manner on account of various hurdles created by the State machinery.
The lawyers would be more concerned with shielding their own reputation or
their liberty rather than cross-examining the prosecution witnesses for eliciting
the truth. The constant fear of not causing any annoyance to the prosecution D
witnesses specially those of the police department would loom large over
their mind vitally affecting the defence of the accused. Passing of the detention
order against 16 co-accused soon after grant of bail to the petitioner by this
Court on I 0.1.2005, which order could be of some support in seeking parity
or otherwise for securing bail in the present murder case, is a clear pointer E
to the fact that the State wanted to deprive them of any chance to secure
release from custody. Even though this Court has issued notice on the special
leave-petition filed by the State against the order of the High Court by which
Habeas Corpus petition of the 16 co-accused was allowed, yet the observations
made in the said order show in unmistakable terms that the even tempo of
life was not disturbed, nor the public order was affected by the murder of F
Sankararaman and the detention order was passed without any basis. Again,
the action of the State in directing the banks to freeze all the 183 accounts
of the Mutt in the purported exercise of the power conferred under Section
102 Cr.P.C., which had affected the entire activities of the Mutt and other
associated trusts and endowments only on the ground that the petitioner, G
who is .the head of the Mutt, has been charge sheeted for entering into a
conspiracy to murder Sankararaman, leads to an inference that the State
machinery is not only interested in securing conviction of the petitioner and
the other co-accused but also to bring to a complete halt the entire religious
and other activities of the various trusts and endowments and the performance
of Pooja and other rituals in the temples and religious places in accordance H
580 SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A with the custom and traditions and thereby create a fear psychosis in the
minds of the people. This may deter any one to appear in court and give
evidence in defence of the accused. Launching of prosecution against
prominent persons who have held high political offices and prominent
journalists merely because they expressed some dissent against the arrest of
B the petitioner shows the attitude of the State that it cannot tolerate any kind
of dissent, which is the most cherished right in a democracy guaranteed by
Article 19 of the Constitution.

24. Taking into consideration the entire facts and circumstances of the
case and the material on record, we have no hesitation in holding that the
C petitioner and other co-accused of the case have a reasonable apprehension
that they will not get justice in the State of Tamil Nadu. We would like to
clarify here that we are casting no reflection on the district judiciary in the
State of Tamil Nadu. But it is the actions of the prosecuting agency and the
State machinery, which are responsible for creating a reasonable apprehension
in the mind of the petitioner and other co-accused that they will not get
D justice if the trial is held in any place inside the State of Tamil Nadu. We are, <.
therefore, of the opinion that the interest of justice requires that the trial may
be transferred to a place outside the State of Tamil Nadu.

25. The next question which arises for consideration is as to where the
sessions case should be transferred. Shri F.S. Nariman, learned senior counsel
E for the petitioner, has submitted that the case may be transferred to any
adjoining district like Chittoor, Nellore, Cuddapah or Tirupati in the State of
Andhra Pradesh as about one-third of the judicial officers in the said State
and particularly in the aforesaid districts are conversant with Tamil language.
It is also submitted that in view of Section 277 Cr.P.C. ifthe witness does not
p give statement in the language of the Court, a translation of the evidence in
the language of the Court has to be prepared as the examination of the
witness proceeds and, therefore, transferring the case to a district which is
not Tamil speaking is also permissible under law. Dr. Rajiv Dhawan, learned
counsel for the respondents, has submitted that if at all the case is transferred,
it should be transferred to Pondicherry as the language spoken there is Tamil
G and it is only at a distance of70 kms. From Kanchipuram. In our opinion, while
directing transfer of a criminal case the language spoken by the witnesses
assumes great importance as translation of deposition of a witness apart from
being a difficult job, often does not carry the same sense which the witness
wants to convey. The convenience of the prosecuting agency, especially in
H a case where there are large number of witnesses and documents, has also
IA VEND RA SARA SWATHY SWAMIGAL. TAMIL NADU "· STATE OFT AMIL NADU [G.P. MATHUR. 1 ] 58J

an important bearing. We are, therefore, of the opinion that the case may be A
transferred to Pondicherry as there will be no difficulty in recording the
evidence in the same language in which almost all the witnesses would
depose and with which the presiding judge would be familiar. It is only at a
short distance from Kanchipuram and the witnesses would not face much
inconvenience in going there.
B
26. The transfer petition is accordingly allowed. The Sessions Case
No.197 of 2005 pending before the Principal Sessions Court, Chenglepet, is
transferred to the Court of Principal District and Sessions Judge, Pondicherry,
who may either try the case himself or assign it to any other Sessions Judge
competent to try the same. All applications stand disposed of.
c
v.s.s. Petition allowed.

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