Sarasamma @ Saraswathiyamma v. The Secretary To The Government Of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 13.07.2023

CORAM

THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH Crl.O.P.Nos.29787, 19987 & 29835 of 2018 and 21140 of 2020 & Crl.M.P.Nos.10648, 17452 & 17512 of 2018 & 8993 of 2020 Crl.O.P.No.29787 of 2018 Sarasamma @ Saraswathiyamma ... Petitioner

Versus

1.The Secretary to the Government of Tamilnadu Home Department Secretariat, Fort St.George, Chennai - 600 009.

2.The Deputy Superintendent of Police, District Crime Branch, Krishnagiri District, Crime No:614/1995 3.Varadharajan 4.Ramachandran 5.Lagumaiya 6.Narayanappa 7.Irudhayaraj @ Doctor Irudhayaraj @ Sagaya Irudhayaraj 8.Ramachandran 9.Prabhakaran 10.E.Ramadoss Page No.1 of 22

11.V.Palani ... Respondents PRAYER: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to order denova trial in S.C.No.451 of 2018 pending before the Hon'ble Special Court Chennai constituted trying Elected Representatives who are involved in criminal cases. Crl.O.P.No.29835 of 2018 Vanjinathan ... Petitioner

Versus

1.The State Rep. By The Inspector of Police, Utthanapallai Police Station, Krishnagiri District.

Crime No:143 of 2012 2.Varadharajan 3.Ramachandran 4.Lagumaiya 5.Kesavan @ Kesavamoorthy 6.Periyasamy 7.Muniraj @ Sappadi Muniraj 8.Sathappa 9.Galil 10.MSK Murthy @ Sri Kandamoorthi 11.Velu 12.Pappanna 13.Raja @ Rajappa @ Siththaraj 14.Murugan @ Murugesan 15.Veeramani 16.S.K.Murali 17.Manju @ Manjunath Page No.2 of 22

18.Senni @ Srinivasan 19.Ganesh 20.Krishanan @ Krishnappa 21.Malliga Arjun 22.Srinivasan 23.Raman @ Lakshmanan @ Kullakaruppan @ Pattasu 24.Purusothaman @ Purusothama Reddy 25.Denkanikottai Mohan 26.Murali @ Muralikumar ... Respondents PRAYER: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to order denova trial in S.C.No.452 of 2018 pending before the Hon'ble Special Court Chennai constituted for trying the Elected Representatives against who criminal cases are pending. Crl.O.P.No.21140 of 2020 Nagaraja Reddy ... Petitioner

Versus

1.State Rep. By The Inspector of Police, Thalli Police Station, Thalli, Krishnagiri District.

(Crime No.84 / 2012) 2.Nagaraj @ Kuddynagan 3.Muniraj @ Thuppa 4.Sivasankar 5.Mathes 6.Ramachandran 7.Varatharajan Page No.3 of 22

8.Lagumaiah 9.Rajamani (R2 to R9 are suo moto impleaded as per order in Crl.O.P.No.21140/2020 and Crl.M.P.No.8993/2020 dated 05.01.2021) ... Respondents PRAYER: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to withdraw the S.C.No.178 of 2019 from the file of the Court of Learned Principal District & Sessions Judge, Krishnagiri and to transfer the same to the file of the Court of Learned Principal District & Sessions Judge, Salem.

Crl.O.P.No.19987 of 2018 Sarasamma @ Saraswathiyamma ... Petitioner

Versus

1.The Secretary to the Government of Tamilnadu Home Department Secretariat, Fort St.George, Chennai - 600 009.

2.The Deputy Superintendent of Police, District Crime Branch, Krishnagiri District, Crime No:614/1995 ... Respondents PRAYER: Criminal Original Petition filed under Section 482 of the Code Page No.4 of 22

of Criminal Procedure, to direct the 1st respondent to appoint Mr.Thirumalairajan as Special Public Prosecutor to conduct trial in Session Case in S.C.No.451 of 2018 pending before the Hon'ble Special Court, Chennai, which is transferred from the 1st Additional District and Session Court, Hosur in S.C.No.81 of 2016 by the order of the Hon'ble Supreme Court of India in the Criminal Appeal No.713 of 2018 dated 09.05.2018, pursuant to the petitioner's representation dated:29.01.2018. Case Nos.

For Petitioners For Respondents Crl.O.P.No.

29787 of 2018 Mr.P.Rathinam Mr.M.Balsu Muthumeeran (R1 & R2) Additional Public Prosecutor Mr.V.Gopinath, Senior Counsel & Mr.V.Karthik, Senior Counsel for M/s.S.Gajapathikrishnan (R3 to R5 & R8 & R9) Crl.O.P.No.

29835 of 2018 Mr.R.Sankarasubbu Mr.M.Balsu Muthumeeran (R1) Additional Public Prosecutor Mr.V.Gopinath, Senior Counsel & Mr.V.Karthik, Senior Counsel for M/s.S.Gajapathikrishnan (R2 to R4 & R8) Crl.O.P.No.

21140 of 2020 Mr.G.Mohan for Mr.Kumaradevan Mr.M.Balsu Muthumeeran (R1) Additional Public Prosecutor Mr.V.Gopinath, Senior Counsel & Mr.V.Karthik, Senior Counsel for M/s.S.Gajapathikrishnan (R7 & R8) Mr.A.Ram Kumar (for R6) Crl.O.P.No.

19987 of 2018 Mr.P.Rathinam Mr.M.Balsu Muthumeeran (R1 & R2) Additional Public Prosecutor ***** Page No.5 of 22

COMMON ORDER The relief sought for in these petitions are inter connected and hence, all these petitions are taken up together, heard and disposed of through this common order.

2. Crl.O.P.Nos.29787 & 29835 of 2018 have been filed seeking for de novo trial in S.C.No.452 of 2018. Crl.O.P.No.19987 of 2018 has been filed for appointment of Special Public Prosecutor to conduct the trial in S.C.No.452 of 2018. Crl.O.P.No.21140 of 2020 has been filed for transfer of the case.

3. The facts leading to the filing of these Criminal Original petitions need not be restated and same has been dealt with by the Apex Court while disposing of Criminal Appeal No.713 of 2018 through judgment dated 09.05.2018. For appreciation, the entire judgment of the Apex court is extracted here under, " .....

3.The brief facts of the case, including its genesis, which are Non-Reportable 2018 INSC 468 necessary for the purpose of disposal of the case are that in the year 1992, one N. C. Raman, who was alleged to be the head man of Nagamangalam village, was murdered by certain persons. The aforesaid case was Page No.6 of 22

registered, as Crime No. 302 of 1992, before the jurisdictional police station. In the context of the aforesaid case N.C.Chandrashekran, husband of the appellant herein, was alleged to have been murdered at Hosur Bus Stand (Tamil Nadu), as N.C.Chandrashekran was an eye witness to the earlier murder of his deceased brother (N. C. Raman).

4. Accordingly, a First Information Report, being FIR No.614 of 1995, dated 15-81995, was initially registered under Section 307 of the Indian Penal Code [IPC] at Hosur Police Station but after the death of deceased (N.C.Chandrashekran), Section 307 was altered into Section 302 IPC. In the year 1997, one Ramachandran, son of Marappa, a different person than respondent no. 3 (Ramachandran son of Thimmaiya), along with another accused surrendered before the Magistrate with reference to FIR No.614 of 1995. Thereafter, first Charge-sheet was filed against the said Ramachandran son of Marappa and in the 2 year 2012, the complainant who is the present appellant herein, gave a representation to the concerned Police Station indicating that the original accused viz. Ramachandran son of Thimmaiya (respondent no. 3 herein) was not arrested and in his place, Ramachandran son of Marappa (an alleged imposter) was shown as an accused. Therefore, she requested that the original accused Ramachandran son of Thimmaiya (respondent no. 3) be arrested and tried.

5. In the context of the representation, the police investigated into the matter and found that certain police men were involved in the Page No.7 of 22

active concealment of the real accused.

Thereafter, on 30-4-2015, a supplementary charge-sheet was filed, against the present Respondent No.2, Ramachandran son of Thimmaiya (respondent no.3) along with two accused Police officials who were alleged to have actively connived in suppressing the identity of the true accused. It was brought to our notice that further investigation was carried out and proceedings before the Sessions Court have been inordinately delayed. After filing the supplementary Charge-sheet, the Court took cognizance and committed the case to the Sessions Court at Hosur in Sessions Case No.81 of 2016.

6. Learned senior counsel, Mrs. Indira Jaising, appearing on behalf of the Appellant has vehemently contended that said accused Ramachandran son of Thimmaiya (respondent no. 3 herein) was earlier an M.L.A. from the Thalli Constituency and there are about 14 criminal cases pending against him. He is alleged to be a very influential and was being an impediment for the witnesses to depose freely.

7. Learned Senior counsel appearing for the Appellant drew our attention to the fact that one of the witnesses filed a Criminal Original Petition No.8000 of 2017 before the Madras High Court under Section 482 of the Code of Criminal Procedure, 1973 seeking expeditious completion of the trial, accordingly, on 14-62017, the High Court has directed the trial court to complete the trial within a period of six months. In this context she argues that, even though such directions were passed by the High Court, the Trial Court has not yet completed the Page No.8 of 22

trial. Thereafter, the Appellant apprehended threat to her life and sought transfer of Sessions Case No.81 of 2016 from Additional Sessions Court, Hosur to Principal Sessions Court at Salem, Tamil Nadu.

8. The High Court by the impugned order while rejecting such a request on the ground that the transfer may not be a solution for ameliorating the apprehensions of the Appellant, as such apprehension may continue even after a transfer, but granted liberty to the appellant to approach the concerned jurisdictional police seeking necessary protection for the purpose of deposing evidence.

9. Learned Senior counsel appearing for the Appellant submitted that the transfer, which they are seeking, is essentially on the ground that the manner in which three murders have taken place and the adverse circumstances under which the trial is being conducted. According to the Appellant, the genesis of this criminal case concerning death of a witness (N. C. Chandrashekaran) for the earlier criminal case is indicative of the nature of apprehension the Appellants are reeling under.

10. It is stated by the appellant that the accused had earlier threatened the deceased, husband of the complainant, not to give evidence and if he gives evidence against the accused, he will meet the same fate. As the deceased did not oblige the accused, the deceased (N. C. Chandrashekaran), 5 who is the husband of the Appellant herein, was done to death. It was also submitted that the same accused has murdered another person i.e., the husband of the Appellant in the other Special Page No.9 of 22

Leave Petition (Crl.) No.1896 of 2018 and in addition to this, learned senior counsel appearing for the Appellant submitted that the accused - respondents are very influential in the locality and according to her, the allegations which are substantiated are supported from the counter affidavit filed by the State of Tamil Nadu. She has relied on the principles enunciated in Abdul Nazar Madani v. State of Tamil Nadu and Anr., (2000) 6 SCC 204, and submitted that there is a reasonable apprehension that there cannot be a fair trial, more so when the witnesses are not coming forward to depose and are turning hostile due to the pressure tactics of the accused. According to her, there are 24 witnesses still to be examined and so far 20 witnesses are examined out of them 16 witnesses already turned hostile.

It is further submitted that most of official witnesses turned hostile. In the circumstances, she submits that there is no way that proper and fair trial can be held and justice will be done to the Appellant. Therefore, it is a fit case to transfer under Section 407 of the Code of Criminal 6 Procedure, 1973.

11. On the other hand, Mr. Kapil Sibal and Mr. Sanjay R. Hegde, learned senior counsels appearing for the respondents submitted that there is no reason for transferring the case. They further submitted that the appellant has expressed her apprehension for her life and security, which was properly considered by the High Court and taken care of. They further contended that the respondent no. 3 is no more an M.L.A. and there is no evidence on record concerning the Page No.10 of 22

pressure exerted on any of the witnesses. On the aspect of delay, they contend that the trial is being delayed due to the fact that the appellants herein herself is not deposing. So far as the hostile witnesses are concerned, they submit that it is a matter which the Court will examine and even though the witnesses have turned hostile, they can be cross-examined. They further submitted that the statements which sought to be relied upon by the appellants, are filed before this Court for the first time and the same cannot be taken into consideration as they are of questionable veracity. They suggested that respondents can be directed to stay out of the District till the trial is concluded and there is no ground made out for transfer.

12. Heard the learned counsels appearing for the parties and perused the material available on record.

13. In this case at hand, there is no dispute that the F.I.R. was registered way back in the year 1995 and initially the first chargesheet was filed against Ramachandran son of Marappa. Subsequently, in 2012, the appellant herein had submitted a representation, which ultimately led to the further investigation and filing of the supplementary charge-sheet against the present respondents. A perusal of the affidavit filed by State make it apparent that certain Police officials, who are now arraigned as accused nos. 8 and 9, in collusion with respondent no.3 had wrongly portrayed the other Ramachandran as accused instead of the present respondent no.3.

14. Coming to the manner of conduction of trial, it is not in dispute that as per the Page No.11 of 22

information provided before this Court, almost 21 witnesses so far have been examined and out of which 16 witnesses have turned hostile. It is surprising to note that some of the official witnesses have also turned hostile being P.W. 9, 10 and 11. Still, there are 24 witnesses who are yet to be examined. We cannot ignore that several criminal cases, where the accused - respondents are involved, are pending before the Court. Apart from that, in the affidavit filed on behalf of the State by Respondent No.1, it is admitted that the Village Administrative Officer and the Village Assistant who are punch witnesses have turned hostile.

15. It is also stated in the affidavit by the State that the accused Ramachandran son of Marappa who surrendered before the concerned Court was not the real accused and basing on that, District Judge directed the respondents to conduct further investigation, accordingly, the case was transferred to District Crime Branch. After the investigation, it was found that the real accused i.e., Accused Nos. 1 and 2 in this case are alleged of colluding with the investigating officer and swapping the real accused for an imposter. It is in this context that the police officials have also been added as accused in the supplementary charge-sheet.

16. Taking into consideration the aforesaid allegation which prima facie indicates that the investigation officer at that point of time has not properly conducted the investigation. At this juncture it may be relevant to extract the counter affidavit filed by the State concerning the influence of the respondent no. 3MLA Tr. Ramachandran and his Page No.12 of 22

associates who had maintained an iron grip over 15 villages and had not allowed any political rivals to set up a base were infuriated by the challenge posed by the PDK Party of which the deceased was a prominent local leader.

It is apparent from the affidavit filed by the State that the members of the respondents - accused group being public representatives have significant influence in these villages so the apprehension expressed by the appellant cannot be brushed aside. Taking into consideration of the facts and circumstances of this case, we conclude that the apprehension of the complainant - appellant that there is no possibility for conduction of fair and impartial trial at Hosur is reasonable. Further, by transferring the case, the respondents - accused are not prejudiced in any manner. Accordingly, the case (Sessions Case No.81 of 2016) is transferred from Additional Sessions Court, Hosur to Principal Sessions Court at Salem, Tamil Nadu.

17. Taking into consideration the long pendency of the case, we direct the Principal Sessions Judge, Salem, Tamil Nadu to conduct and conclude the trial expeditiously. It may be noted that we have not expressed anything on the merits of the case and trial court is directed to independently consider the case uninfluenced by any observations passed herein.

Criminal Appeal No. 714 of 2018 (arising out of SPECIAL LEAVE PETITION (CRIMINAL) NO.1896 OF 2018) Page No.13 of 22

18. This case is filed seeking transfer of the criminal case being SC NO. 1/2013, pending before the Additional Sessions Court, Hosur to anyplace outside Hosur.

19. A brief factual matrix is that the husband of the appellant herein was murdered on 05.07.2012 by respondent no. 2 to 26 herein. It may not be out of context to note that respondent no. 2 and respondent no. 3 (ex-MLA) are common accused in both the petitions. A FIR, being Crime No. 143 of 2012, was registered under Sections 147, 148, 341, 120 (B), 307, 302 of IPC, Section 25(1)(B) of Arms Act and Section 5 of Explosives Act, by the Appellant's son. Thereafter, a charge-sheet was filed before the Additional District Court, Hosur in SC No. 1 of 2013 on 03.10.2012.

20. It is brought to our notice that on the earlier occasions the Appellant's son had approached the High Court seeking transfer of the case which was dismissed. As the trial was being stalled, the Appellant filed Crl. O.P. No. 28217 of 2017, before the High Court on 20.12.2017. It is apparent from the record in the present case 19 witnesses have been examined since the filing of the transfer petition before the High Court.

21. By the impugned order dated 23.01.2018, the High Court dismissed the transfer petition on the ground that transfer of the case at the belated stage of the trial would be prejudicial instead directed the trial court to dispose of the case expeditiously. Aggrieved by the same the Appellant is in appeal before this Court.

22. Mr. Gopal Shankar Narayan, learned Page No.14 of 22

counsel for the Appellant, has contended that the Appellant apprehends that there may not be possibility of fair trial as apparent from the facts of the other case, wherein the witnesses are being pressurized. He adopts the arguments of the learned Senior counsel appearing on behalf of the Appellant in the other case, to contend that the apprehension in the present case are reasonable as apparent from the affidavit filed by the State.

23. Having heard learned counsel appearing on behalf of both parties and perusing the documents available on record, we may note that from the day when the transfer petition has been filed, about 19 witnesses have been examined and 13 among them have turned hostile. Interestingly, nine official witnesses have turned hostile in this case. We are further apprised of the fact that Witness No. 36 to 124 are still to depose. Moreover, it is apparent from the affidavit filed by the State that the accused (respondent no. 3) is supposed to have an iron grip over 15 villages around the area which is indicative of possible influence over the men and machinery in the area.

24. As justice should not only be done, but also seem to have been done, it would be necessary that the trial should take place in a fair and transparent manner, wherein there should be no element of bias or witness tampering. As the appellant has clearly made out a case for transfer, we are inclined to accept the prayer sought by the Appellant in this case. Accordingly, the case being SC No. 1 of 2013 pending before the Additional Sessions Court, Hosur is directed to be transferred to Principal Page No.15 of 22

Sessions Court at Salem, Tamil Nadu. Further the trial court is directed to conduct the trial in an expeditious manner and uninfluenced by any observations made herein."

4. It is pellucid from the above judgment that the Apex Court, on considering the serious allegations that where raised on the side of the de-facto complainant, thought it fit to transfer the case from the Additional Sessions Court, Hosur to the Principal Sessions Court at Salem and directed to conduct the trial in an expeditious manner.

5. Pursuant to the above order passed by the Apex Court, all these petitions have been filed before this Court.

6. Criminal Original petition No.19987 of 2018 has been filed for the appointment of Special Public Prosecutor to conduct the trial in S.C.No.451 of 2018, which has been renumbered as S.C.No.92 of 2019 pending on the file of learned Principal District Judge, Salem. It is brought to the notice of this Court that the learned Principal District and Sessions Judge, Salem is designated as Special Court to try MP and MLA cases.

7. Learned Additional Public Prosecutor on instructions submitted Page No.16 of 22

that based on the request made by the de-facto complainant, a recommendation was made for appointment of Mr.Thirumalairajan, Advocate as the Special Public Prosecutor to conduct the case. It was informed to this Court that the said Mr.Thirumalairajan, Advocate may have some conflict of interest since he had appeared on behalf of the accused person.

8. In the considered view of this court, the appointment of Mr.Thirumalairajan, Advocate as Special Public Prosecutor should not cause any further complications in this case and hence, there shall be a direction to the de-facto complainant to suggest any other counsel to the State to discharge the functions of the Special Public Prosecutor and on receipt of such request, the State shall appoint that Advocate as Special Public Prosecutor to conduct the trial. The representation shall be made within a period of two (2) weeks from date of receipt of a copy of this order and the appointment of the Special Public Prosecutor shall be made within a period of four (4) weeks thereafter.

9. Criminal Original Petition No.21140 of 2020 has been filed seeking for the transfer of the case in S.C.No.178 of 2019 from the file of Page No.17 of 22

learned Principal District and Sessions Judge, Krishnagiri to the file of the learned Principal District and Sessions Judge, Salem.

10. Taking into consideration the facts and circumstances of the case and also the fact that A5 in that case is a sitting MLA, there shall be an order to withdraw S.C.No.178 of 2019 from the file of the learned Principal District and Sessions Judge, Krishnagiri and the same shall be transferred to the file of the learned Principal District and Sessions Judge, Salem, which is the designated Special Court for conducting trial for MP and MLA cases. This process shall be completed within a period of four (4) weeks from date of receipt of a copy of this order and the entire file shall be transferred to the Principal District and Sessions Court, Salem. The learned Special Public Prosecutor who is going to be appointed pursuant to the order passed in Crl.O.P.No.19987 of 2018 shall conduct the trial on the side of the prosecution in this case also.

11. Criminal Original Petition Nos.29787 & 29835 of 2018 have been filed seeking for de novo trial in S.C.No.452 of 2018 (renumbered as S.C.No.91 of 2019). The Apex Court while disposing of the Criminal Appeal had directed that the trial must be conducted in an expeditious Page No.18 of 22

manner. The Apex Court also took into consideration the fact that most of the witnesses in this case had turned hostile. However, the Apex Court did not deem it fit to order for de novo trial. Hence, it will not be appropriate for this Court to pass any such order in these petitions. However, the learned Special Public Prosecutor who is going to be appointed by the State is going to conduct the trial. It is always left open to the learned Special Public Prosecutor to have a free hand with regard to examining or recalling of witnesses. Ultimately, the power vested under Section 311 of Cr.P.C., is to ensure that the ends of justice is secured. Consequently, even in the absence of de novo trial, the prosecution can always make use of Section 311 of Cr.P.C. and examine the witnesses. It goes without saying that, as and when any recalling of witness is sought for, the accused persons will be put on notice and their objections will also be taken into consideration.

12. These observations made will sufficiently take care of the relief sought for in these petitions.

13. In light of the above, all these Criminal Original Petitions are disposed of in the above terms. There shall be a direction to the Principal Page No.19 of 22

District and Sessions Judge Court, Salem which is the designated Special Court to conduct trial of MP and MLA cases to dispose of the S.C.Nos.91 & 92 of 2019 within a period of six (6) months from date of receipt of a copy of this order.

14. These Criminal Original Petitions stands disposed of accordingly. Connected Miscellaneous petitions are closed. 13.07.2023 Index : Yes/No Internet : Yes/No Speaking Order/Non-Speaking Order : Yes/No mpl To 1.The Secretary to the Government of Tamilnadu Home Department Secretariat, Fort St.George, Chennai - 600 009.

2.The Deputy Superintendent of Police, District Crime Branch, Krishnagiri District.

3.The Inspector of Police, Utthanapallai Police Station, Krishnagiri District.

4.The Inspector of Police, Page No.20 of 22

Thalli Police Station, Thalli, Krishnagiri District.

5.The Public Prosecutor, High Court, Madras.

6. The Principal District and Sessions Judge Court, Salem.

Page No.21 of 22

N. ANAND VENKATESH, J.

mpl Crl.O.P.Nos.29787, 19987 & 29835 of 2018 and 21140 of 2020 & Crl.M.P.Nos.10648, 17452 & 17512 of 2018 & 8993 of 2020 13.07.2023 Page No.22 of 22