Sarasamma @ Saraswathiyamma vs The State Rep. by Deputy Superintendent of Police and Others

Criminal Appeal No.713 of 2018 (arising out of SLP (Crl.) No. 1878 of 2018)

SARASAMMA @ SARASWATHIYAMMA Appellant(s)

VERSUS

THE STATE REP. BY DEPUTY Respondent(s) SUPERINTENDENT OF POLICE AND OTHERS

With

Criminal Appeal No.714 of 2018 (arising out of SLP (Crl.) No. 1896 of 2018)

JUDGMENT

N. V. RAMANA, J.

1. Leave granted.

Criminal Appeal No. 713 of 2018 (arising out of Special Leave Petition (Criminal) No.1878 of 2018)

2. This Special Leave Petition (Criminal) No.1878 of 2018 is

filed, being aggrieved by the impugned order passed by the

High Court, wherein it has rejected the prayer seeking

transfer of Sessions Case No.81 of 2016 from Hosur to

Salem in Tamil Nadu.

3. The brief facts of the case, including its genesis, which are

1 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 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 15-8-1995, 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 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.

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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 14-6-2017, 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 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.

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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 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

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.

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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

charge-sheet 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 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

8 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

9 respondent no. 3- MLA Tr. Ramachandran and his 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

10 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)

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

11 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 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

12 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 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.

25. Accordingly, the appeals stand allowed in the above terms

13 and pending applications, if any, shall also stand disposed

of.

…………………………….J. (N. V. Ramana)

……………………………..J. (S. Abdul Nazeer)

NEW DELHI MAY 09, 2018

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