V.K. SASIKALA Vs. STATE REPRESENTED BY THE SUPERINTENDENT OF POLICE AND SPECIAL PUBLIC PROSECUTOR FOR SPECIAL COURT

JUDGEMENT

(1.) IN this petition filed under Section 482 Code of Criminal Procedure, the Petitioner herein who has been arraigned as accused No. 2 in Spl. C.C. No. 208/04 before XXXVI Additional City Civil and Sessions Judge (Special Judge), Bangalore has sought for setting aside the order dated 3.6.2011 passed in the said case on I.A. No. 558/2011 filed under Section 311 of Code of Criminal Procedure and to allow the said application.

(2.) THE Petitioner herein along with other accused persons has been facing charges for the offences punishable under Sections 120B and 109 r/w 13(2) and 13(1) of the Prevention Corruption Act. Accused No. 1 in the case is Selvi Jayalalithaa who is presently the Chief Minister of the State of Tamil Nadu. Between 1991 -1996 accused No. 1 was the Chief Minister of the State of Tamil Nadu. However, during the General Elections held' to the Legislative Assembly of that State in 1996, the party headed by accused No. 1 viz., AIADMK was defeated and DMK party was voted to power. Thereafter several cases were registered against accused No. 1 and Others for various offences said to have been committed by her during her tenure as Chief Minister of the State. After investigation, charge sheet came to be filed by the Superintendent of Police, Directorate of Vigilance and Anti -Corruption, Chennai (for short S.P., DVAC) and one such case was Spl. C.C. No. 7/97. The State Government of Tamil Nadu constituted Special Court for the trial of the case filed against accused No. 1 and others. In Spl. C.C. No. 7/97 with which we are concerned accused Nos. 1 to 4 were charge sheeted for the offences punishable under Sections 120B and 109 of Indian Penal Code, 1860 and Section 13(2) r/w 13(1)(a) of the P.C. Act. The learned Special Judge at Chennai before whom the charge sheet came to be laid took cognizance of the offence alleged in the charge sheet and directed issue of summons to the accused persons. Upon appearance of the accused persons, charges were framed and plea of the accused, persons were recorded. Since the accused persons pleaded not guilty of the charges levelled against them and claimed to be tried, the Special Court proceeded with the trial of the case. By April 2000 about 250 prosecution witnesses were examined. Thereafter, in the General Election held in May 2001 the party headed by accused No. 1. secured absolute majority in the assembly and she on being unanimously chosen as leader of the House by the elected members of the Legislative Assembly of that party, was sworn in as the Chief Minister of Tamil Nadu. Thereafter, in the trial of Spl. C.C. No. 7/97 several developments took place wherein 76 witnesses who had already been examined earlier were recalled for further cross -examination and during the further cross -examination, they appear to have resiled from their earlier evidence and in spite of the same there was No. attempt on the part of the Public Prosecutor to declare them hostile and to cross examine those witnesses. In the light of those developments, petitions were filed before the Supreme Court under Section 406 of Code of Criminal Procedure seeking transfer of Spl. C.C. No. 7/97 which was pending before the Special Court, at Chennai to a Court of equivalent and competent jurisdiction in any other State inter alia on the, ground that free and fair trial is not going on and process of justice is subverted. The Hon'ble Supreme Court by its judgment dated 18.11.2003, allowed the transfer petition and ordered transfer of Spl. CC. No. 7/97. to the State of Karnataka with a direction to the State of Karnataka to constitute a Special Court in consultation with the Chief Justice of the High Court of Karnataka. The Hon'ble Supreme Court also directed the State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall appoint a Senior Advocate having experience in criminal trials as Public Prosecutor to conduct these cases and the prosecutor was given liberty to apply for recalling the witnesses who have been recalled and cross -examination by the accused and who have resiled from their previous statement and to have those witnesses declared hostile and to seek permission, to cross -examine them. Pursuant to the said direction, the Government of Karnataka constituted XXXVI Addition City Civil and Sessions Judge as Special Court to try Spl. C.C. No. 7/97. Upon such transfer, the case in Spl. C.C. No. 7/97 was renumbered as Spl. C.C. No. 208/04, Sri. B.V. Zachary, Senior Advocate was appointed as Special Public Prosecutor. Before the Special Court at Bangalore, Special Public Prosecutor sought recalling of certain witnesses as indicated in the judgment of the Supreme Court and they were cross -examined on being treated hostile. After the Special Public Prosecutor closed the prosecution evidence and when the case was set down for examination of the accused under Section 313 Code of Criminal Procedure, the Petitioner herein accused No. 2 filed an application under Section 311 of Code of Criminal Procedure in I.A. No. 558/2011 seeking to recall PW.230 - Balaji a Chartered Accountant by profession for the purpose of further examination and to mark the documents viz., subscription details, Bank statements, Sale bills, scheme deposits and Income Tax returns and financial statements relating to "Namadu MGR" a division of Jaya Publication inter alia on the ground that though the said witness in his earlier evidence had spoken to about the income of Namadu MGR, documentary evidence has not been marked through him, therefore, it is necessary to mark the documentary evidence through him, therefore, it is necessary to mark the documentary evidence through him. He was also sought to be recalled to speak with regard to the income relating to firms namely Metal King, Vinoth Video Vision, Anjeneya Printers and Super Duper TV. According to the applicant, her earlier counsel failed to mark vital documents through the witness to prove the income of the above said concerns as such it is necessary to further cross -examine the witness to place the truth on record. It was also stated in the application that the prosecution filed application I.A.321 to recall PW.230 along with other witnesses and though the said application was allowed by the Court, the Special Public Prosecutor by filing a memo dispensed with the examination of PW.230 and this act on the part of Special Public Prosecutor dispensing with the examination of PW.230 was without jurisdiction, therefore, further examination of PW.230 is essential for just decision of the case. It was also stated in the application that the present application is filed without prejudice to the right of the accused to recall other witnesses.

(3.) AFTER hearing both sides, learned Special Judge by the order dated 3.6.2011 impugned in this petition rejected the application and declined to recall PW.230 as sought in the application filed by the Petitioner mainly on the ground that there were No. bonafides in the application, the application is highly belated and filed with a view to protract and delay the proceedings and No. reasons are assigned as to why the documents now sought to be marked were not marked earlier when the witness was recalled and cross -examined at length for 3 days. Being aggrieved by the said order, the Petitioner/ accused No. 2 has presented this petition.