Supreme Court of India
K.ANBAZHAGANversusSUPERINTENDENT OF POLICE, CHENNAI AND ORS.
- Citation
- 2004 INSC 118
- Decided
- 17 February 2004
- Disposal
- Dismissed
- Bench
- S N VARIAVA
Holding
The Court held that modification of the transfer order is not permissible as a transfer to Pondicherry would amount to a transfer within the same High Court jurisdiction, which Section 406 does not contemplate, and the security concerns were adequately addressed.
Summary
The petitioners sought to modify a Supreme Court order that had transferred criminal proceedings against them from Tamil Nadu to Karnataka under Section 406 of the Code of Criminal Procedure, 1973. They argued that the prevailing tension between Tamil Nadu and Karnataka over the Cauvery water dispute, the threat posed by forest brigand Veerappan, and language considerations warranted a further transfer to the Union Territory of Pondicherry, where Tamil is spoken and translation would not be required. The State of Karnataka, in its counter‑affidavit, undertook to provide adequate security and a fair trial, and the Court noted that such apprehensions were already addressed. The Court held that a transfer to Pondicherry would effectively be a transfer within the jurisdiction of the Madras High Court, which Section 406 does not contemplate, and therefore no modification was justified. Consequently, the petitions for modification were dismissed.
Issues considered
- Whether Section 406 CrPC permits modification of a transfer order to a Union Territory that falls under the same High Court jurisdiction.
- Whether the petitioners' security and language concerns justify altering the original transfer order.
- Whether the undertaking by the State of Karnataka suffices to ensure a free and fair trial.
Legislation cited
Subjects
Transfer of criminal caseSection 406 CrPCJurisdictionPersonal securityFree and fair trialLanguage issuesUnion TerritoryMadras High CourtModification of transfer order
Judgment
K.ANBAZHAGAN A
v.
SUPERINTENDENT OF POLICE, CHENNAI AND ORS.
FEBRUARY 17, 2004
[S.N. VARIA VA AND H.K. SEMA, JJ.] B
- Code of Criminal Procedure, I 973-Section 406-Transfer ofcase from
State a/Tamil Nadu to Karnatakcr-Petitionsfor modification of transfer order
seeking transfer to Pondicherry-Personal security and free and fair trial C
apprehended in State of Karnataka-State of Karnataka undertaking_ to ensure
security of the petitioners and free and fair trial-Held: In the facts and
circumstances of the case, no case is made out for modification-Pondicherry
falling within same jurisdiction of High Court of Madras, transfer thereto
would amount to transfer of case to the jurisdiction of same High Court,
which is not contemplated u/s 406. D
In a transfer petition u/s 406 Cr.P.C., Supreme Court had
. transferred a case from Tamil Nadu to Karnataka. Miscellaneous petitions
were filed seeking modification of the judgment transferring the case.
Petitioners sought transfer of the case to Pondicherry instead of
Karnataka, apprehending their security and free and fair trial in view of E
--· surcharged atmosphere between the States of Tamil Nadu and Karnataka
due to Cauvery Water dispute and in view of terror of forest brigand
Veerappan; and that ifthe cases were transferred to Pondicherry, the same
having Tamil speaking people, translation of Tamil documents and
depositions would not be required. F
!
L. State of Karnataka in its Counter affidavit undertook that the State
of Karnataka would ensure free and fair trial and it would provide such
security as would be necessary.
Dismissing the petitions, the Court G
HELD: 1. In the judgment deciding the transfer petition, this Court
was of the view that it is expedient for the ends of justice, the cases be
transferred from Tamil Nadu to Karnataka for trial in accordance with
law. Similarly, the lurking apprehension raised by the applicant is well
495 H
496 SUPREME COURT REPORTS [2004] 2 S.C.R.
A safeguarded by the undertaking of the Karnataka Government with
regard to the personal security of the applicant and witnesses and others.
The apprehensions with regard to the Cauvery Water dispute, forest
brigand Veerappan, have got nothing to do with the judicial function of
the Court. In the facts and circumstances, no case is made out for
B modification of the order under reference. (501-C-E)
2. The Court has exercised its powers under Section 406 Cr.P.C.
Section 406 enjoins that it is expedient for the ends of justice, this Court
-
may direct any particular case or appeal be transferred from one High
Court to another Criminal Court of equal or superior jurisdiction
C subordinate to another High Court. Admittedly, Union Territory of
Pondicherry does not have a separate High Court, it is within the
j~risdiction of Madras High Court. If the case is transferred to
Pondicherry, it would amount to transfer of case from Madras High Court
to the same jurisdiction of the High Court. This situation is not
contemplated under Section 406 Cr. P.C. [499-C-D)
D
CRIMINAL APPELLATE JURISDICTION : Criminal Misc. Petition
Nos. 11439-40 of 2003.
IN
E Transfer Petition Cr! Nos. 77-78 of 2003.
T.R. Andhyarujina, R. Shanmugasundaram, R. Mohan and V.G.
Pragasam for the Petitioner.
K.K. Venugopal, C.S. Vaidyanathan, K.V. Vishwanathan, K.V.
F Venkataraman, N. Jothi and B. Raghunath for Applicant.
A.T.M. Rangaramanujam, S. Nanda Kumar, M. Yogesh Khanna, R.
Suresh, S. Venketesh Perumal, Rakesh K. Sharma K.V. Vijayakumar,
Subramonium Prasad, R. Gopala Krishnan, P.N. Ramalingam, R.N. Keshwani,
A.N. Jayram, Adv. General for State, Sanjay R. Hedge and Anil K. Misra for
G the Respondents.
The Judgment of the Court was delivered by
SEMA, J. By these applications the applicant sought to modify the
judgment dated 18th November, 2003 passed by this Court in Transfer Petition
H (Criminal) Nos. 77-78 of 2003. By the aforesaid judgment, this Court after
-
K. ANBAZHAGAN v.SUPERINTENDENT OF POLICE [SEMA, J.) 497
hearing counsel for both the sides at length allowed the tnmsfer petitions in A
terms of the following directions:
"(a)The State of Karnataka in consultation with the Chief Justice of
the High Court of Karnataka shall constitute a Special court under the
Prevention of Corruption Act, 1988 to whom CC No. 7 of 1997 and
- CC No.2 of 200 I pending on the file of the XI Addi. Sessions Judge
(Special Court No. I) Chennai in the State of Tamil Nadu shall stand
transferred. The Special Court to have its sitting in Bangalore.
B
(b) As the matter is pending since 1997 the State of Kamataka shall
appoint Special Judge within a month from the date of receipt of this
Order and the trial before the Special Judge shall commence as soon C
as possible and will then proceed from day to day till completion.
(c) The State of Kamataka in consultation with the Chief Justice of
High Court of Karnataka shall appoint a senior lawyer having
experience in criminal trials as public prosecutor to conduct these
cases. The public prosecutor so appointed shall be entitled to assistance D
of another lawyer of his choice. The fees and all other expenses of
the Public Prosecutor and the Assistant shall be paid by the State of
Kamataka who will thereafter be entitled to get the same reimbursed
from the State of Tamil Nadu. The Public Prosecutor to be appointed
-
within six weeks from today.
E
(d) The investigating agency is directed to render all assistance to the
public prosecutor and his assistant.
(e) The Special Judge so appointed to proceed with the cases from
such stage as he deems fit and proper and in accordance with law.
F
(t) The Public Prosecutor will be at liberty to apply that the witnesses
who have been recalled and cross-examined by the accused and who
have resiled from their previous statement, may be again recalled.
The public prosecutor would be at liberty to apply to the court to
have these witnesses declared hostile and to seek permission to cross- G
examine them. Any such application if made to the Special court
shall be allowed. The public prosecutor will also be at liberty to
- apply that action in perjury to be taken against some or all such
witnesses. Any such application/s will be undoubtedly considered on
its merit/s.
H
498 SUPREME COURT REPORTS [2004] 2 S.C.R.
A (g) The State of Tamil Nadu shall ensure that all documents and
records are forthwith transferred to the Special Court on its constitution.
The State of Tamil Nadu shall also ensure th:it the witnesses are
produced before the Special Court whenever they are required to
attend that Court.
B (h) In case any witness asks for protection the State of Karnataka
shall provide protection to that witness.
(Emphasis supplied)
-
(i) The Special Judge shall after completion of evldence put to all
c the accused all relevant evidence and documents appearing against
them whilst recording their statement under Section 313. All the \
accused shall personally appear in Court, on the day they are called
upon to do so, for answering questions under 'Section 313, Criminal
Procedure Code."
D In our view, the aforesaid directions have adequately taken care of the security
of the witnesses and others.
Mr. Venugopal, learned Senior counsel contended that in view of
surcharged atmosphere and large scale agitation by a section of the people of
Kamataka targeting the applicant as well as attacks on Tamil speaking people
E caused by highly sensitive Cauvery Water dispute issue, the trial if allowed
to be taken in the St~te of Kamataka, the personal security of the applicant
would be seriously jeopardized and thus free and fair trial would not be
possible. Another ground seeking for modification of the order is that the
notorious forest brigand Veerappan, who is believed to be a Tamilian,
kidnapped the Kamataka matinee idol, Shri Raj Kumar and demanded a huge
F
ransom for his release, resulting in constraint relationship between the two
States. It is argued by Mr. K.K. Venugopal that in view of the surcharged
and tense situation in between the States of Tamil Nadu and Kamataka, the
personal security of the applicant is prejudiced and free and fair trial in such
an atmosphere would not be possible depriving the right of the applicant to
G have free and fair trial as enshrined in Article 21 of the Constitution. It is
further argued that the Union Territory of Pondicherry, being closest to
Chennai, it is a more convenient place for the parties due to its proximity to
Chennai and also the people in Pondicherry are Tamil speaking people and
the Judges there are expected to know Tamil and in that view no translation
-
H of the Tamil documents and depositions would be necessary. According to
K. ANBAZHAGAN v.SUPERJNTENDENT OF POLICE [SEMA, J.] 499
--- Mr. Venugopal, if the cases are transferred to the Un ion Territory of A
Pondicherry instead of Karnataka, justice would be better subserved. Mr.
Venugopal further submitted that the closest amongst the capitals of the three
States and the Union Territory of Pondicherry to Chennai is Pondicherry
which is about 100 miles (162 Kms) whereas Bangalore is 200 miles (334
kms), Hyderabad 400 miles (704 kms), Cochin 430 miles (689 kms) and B
Thiruvananthapuram 500 miles (790 kms).
Before we advert further, we may at this stage, dispose of this part of
the argument of Mr. Venugopal. This Court has exercised its powers under
Section 406 of the Code of Criminal Procedure. Section 406 enjoins that it
is expedient for the ends of justice, this Court may direct any particular case C
or appeal be transferred from one High Court to another High Court or from
a Criminal Court subordinate to one High Court to another Criminal Court
of equal or superior jurisdiction subordinate to another High Court. .
Admittedly, Union Territory of Pondicherry does not have a separate High
Court, it is within the jurisdiction of Madras High Court. If this submission D
is accepted it would amount to transfer of case from Madras High Court to
the same jurisdiction of the High Court. This situation is not contemplated
under Section 406 of the Code. This contention, in our view, is not well
founded.
Pursuant to the notice, the State of Kamataka has filed counter affidavit. E
-- The State of Karnataka in their counter has denied all the allegations made
in the applications. Learned Advocate General for the State of Kamataka has
appeared before us and submitted that pursuant to the directions of this Court
a Special Judge has been appointed in consultation with the Chief Justice of
the High Court and all the arrangements have been made for conducting free
and fair trial smoothly. In paragraph 2 of the counter affidavit it is stated:-
F
"At the outset, it is submitted that for the purpose of securing the
relief prayed for in the application, the applicant has chosen to present
a picture far from the existing reality in the State of Kamataka. It is
no doubt true that the dispute relating to the River Cauvery which is G
now pending adjudication before the Cauvery Water Disputes Tribunal
has occasionally given rise to strong feelings among the peoples of
both States. This. would not mean that the legal system in Karnataka
will be unahle to ensure a fair trial for the applicant in accordance
with the norms and conditions set out by this Hon 'hie Court in its H
500 SUPREME COURT REPORTS [20041 2 S.C.R.
A earlier order dated I 8. I 1.2003. For its part, Karnataka will ensure
that the trial is fair and all necessary security is provided to the
applicant at all stages of the trial. This submission is made as the
allegations in the application amount to an unfair criticism of the
legal system operating in Karnataka for which there is absolutely no
B warrant or justification.
(Emphasis supplied)
In paragraph 5 it is stated :
"Undoubtedly, there have been large scale agitations in the past in
C regard to the dispute relating to the sharing of Cauvery waters and
feelings ran high in both States. The issue of release of water in
accordance with the orders of the Tribunal has no relevance to the
facts herein pleaded and have no bearing on the conduct of a fair
trial. The suicides referred to are not of Tamil Nadu farmers but of
D farmers from Karnataka who carry on agricultural operations in the
Cauvery basin.
In paragraph 8 it is stated :-
"Karnataka takes strong exception for describing the atmosphere in
E the State as "foul and totally vitiated". These false and self-serving
statements are apparently made to bolster up the plea for the relief.
There is no reason to apprehend that Karnataka will not take adequate """'
!
steps for ensuring a fair trial as directed by this Hon'ble Court. Only l
a few months ago, the applicant visited on her own a Temple in
Mysore City and there is absolutely no incident relating to it and she
F was able to complete her visit to the Temple peacefully and return to
Tam.ii Nadu safely. She informed the press persons that it was a
personal visit and did not wish to be drawn· into political matters".
In paragraph 9 it is stated:
G "This Hon'ble Court when it made its order was aware of the fact that
many of the documents would be in Tamil. Kamataka has arranged
for Official Translators so that the translation of the Tamil documents
and witnesses' depositions can be effectively done".
H In paragraph 11 it is stated :-
·"As submitted earlier, Karnataka being a State of the Union, is duty
- K. ANBAZHAGAN v.SUPERINTENDENT OF POLiCE [SEMA, J.] 501
bound to uphold the federal system and constructively participate and carry
out the directions of this Hon 'ble Court. Karnataka will ensure that the trial
A
is fair and such security as may be necessary will be provided Karnataka
has no interest in the outcome of the trial. It looks upon it only as a
constitutional duty to be discharged to effectuate the order of this Hon 'ble
Court".
B
(Emphasis supplied)
We are not persuaded to re-appreciate the circumstances leading to the
filing of the Transfer Petitions and order of this Court transferring the same
to the State of Kamataka. After hearing counsel for both the sides and C
threadbare discussion this Court was of the view that it is expedient for the
ends of justice the cases be transferred from Tamil Nadu to Kamataka for
trial in accordance with law. Similarly, the lurking apprehension raised by
the applicant is well safeguarded by the undertaking of the Karnataka
Government with regard to the personal security of the applicant and witnesses
and others as referred to above. To say the least, the apprehensions with D
regard to the Cauvery Water dispute, forest brigand Veerappan, have got
nothing to do with the judicial function of the Court. At the same time, the
security and safety of the applicant and witnesses are well safeguarded as ·
highlighted in the counter affidavit of the State of Kamataka.
-· In the facts and circumstances aforesaid, no case is made out for
modification of our order under reference. Resultantly, the petitions are
dismissed being devoid of merits.
E
Before parting with the record, we must unequivocally say that in a
democratic country like ours, governed by the Rule of Law, the efficient and p
independent judiciary manned the subordinate courts, where justice is
administered impartially, fearless of public glamour, regardless of public
responses and indifferent to private, political or partisan influences. We have
no least doubt in our mind that the learned judge who has been assigned the
job will do well in discharging his divine duty in accordance with law,
keeping in mind the above principle in view. G
K.K.T. Petition dismissed.
-
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