K ANBAZHAGAN Vs. SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) These two petitions have been preferred under Section 406 of the Code of Criminal Procedure seeking transfer of CC No. 7 of 1997 and CC No. 2 of 2001 on the file of the XI Addl. Sessions Judge (Special Court No. 1) Chennai in the State of Tamil Nadu to a court of equal and competent jurisdiction in any other State. The facts are common in both the petitions. Reference to parties will be as arrayed in Transfer Petition No. 77 of 2003. We also propose to dispose of the petitions by this common judgment.

(2.) Brief facts leading to the filing of the present petition may be noticed. In 1991-96, the second respondent herein was the Chief Minister of Tamil Nadu, AIADMK party headed by the second respondent was defeated in the General Election held in 1996 and DMK party was voted to power. Special Courts were constituted for the trial of cases filed against the second respondent and others, the constitution of which came to be upheld by this Court. Thereafter in 1997 CC No. 7 was filed for the trial of the respondent Nos. 2,3, 4 and 5, who have been charge-sheeted for offences under Sections 120-B IPC,13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) for alleged accumulation of wealth of Rs. 66.65 crores disproportionate to their known sources of income. In 2001, CC No. 2/2001 was filed on the file of Principal Special Judge, Chennai. Respondent No. 2 and Mr. T.T.V.Dinakaran (respondent No. 3 in T. P. No. 78 of 2003) have been charge-sheeted for offences under Sections 120-B IPC, 13(2) read with 13(1)(e) of Prevention of Corruption Act, 1988 for acquisition and possession of pecuniary resources and property outside India, which are disproportionate to known sources of income, by resorting to clandestine transfer of funds belonging to respondent No. 2 with the help of Mr. T.T.V. Dinakaran from India to outside country by violating the provisions of Foreign Exchange Regulation Act and from other countries into the United Kingdom. Trial of CC No. 7 of 1977 progressed and by August 2000, 250 prosecution witnesses had been examined. We are told that only 10 more witnesses remained to be examined in this case. In the general election held in May, 2001 AIADMK party headed by the second respondent secured an absolute majority in the legislative assembly. The second respondent was unanimously chosen to be the leader of the house by the AIADMK party. The said appointment was challenged and this Court nullified the appointment. Consequently, on 21-9-2001, the second respondent ceased to hold the office of Chief Minister. It is claimed that a nominee of the second respondent was sworn in as Chief Minister of Tamil Nadu. The Election Commission of India announced the bye-election to the Andipatti Constituency. In the bye-election held on 21-2-2002, the second respondent was declared elected and she was again sworn in as Chief Minister on 2-3-2002. With the change in Government, 3 public prosecutors resigned. Senior counsel S. Natarajan, who was appearing for the State also resigned. It appears that IO Mailama Naidu, who had earlier been given an extension, also resigned. It must be mentioned, even though we are sure that it has nothing to do with the change in Government, that due to retirements and routine transfers there were changes in the Special Judge also. On 7-11-2002, the trial in CC No. 7 of 1997 resumed. It is alleged that since 7-11-2002 when the trial resumed as many as 76 PWs. have been recalled for cross-examination on the ground that counsel appearing for the respondents or some of them had earlier been busy in some other case filed against them. It is claimed that the public prosecutor did not object and/or give consent to the witnesses being recalled. Out of total 76 P.Ws, 64 P.Ws. resiled from their previous statement in chief. It is alleged that the public prosecutor has not made any attempt to declare them hostile and/or to cross-examine them by resorting to Section 154 of the Indian Evidence Act. No attempt has been made to see that Court takes action against them for perjury. It has also been alleged that the presence of second respondent has been dispensed with during her examination under Section 313, Cr.P.C. and instead a questionnaire was sent to second respondent and her reply to the questionnaire was sent to the Court in absentia. It is alleged that the procedure so adopted is unknown to the law and the public prosecutor has not objected to the application of the respondent No. 2 for dispensing her presence at the time of examination under Section 313, Cr.P.C. These are the main facts, which have been pointed out by the counsel for the petitioner.

(3.) We have heard Mr. T. R. Andhyarujina, learned senior counsel for the petitioner. We have also heard Mr. Subramanium Swamy who was the original complainant. We have heard Mr. K. K. Venugopal and Mr. V. A. Bobde and Mr. ATM Ranga Ramanujam, learned senior counsel for the respondents. We have also heard Mr. Altaf Ahmed, learned ASG.