Selvi J Jayalalithaa vs State Represented By The ... on 23 November, 2010

[Cites 16, Cited by 0]

Karnataka High Court

Selvi J Jayalalithaa vs State Represented By The ... on 23 November, 2010

Equivalent citations: 2011 CRI. L. J. 1567, 2011 (1) AIR KANT HCR 532, (2011) 4 KCCR 3184, (2011) 3 KANT LJ 187

Bench: Subhash B.Adi

" '~ The.. S'u1:)}3:1"iI11end€fV1t"G--f~F01iC€

IN THE HIGH; comm' OF KARNATAKA AT BANGALORE
DATED THIS THE 23% DAY OF' NOVEMBER 2010
BEFORE "

THE HONBLE MRJUSTICE SUBHASH j .»____, _

CRIMINAL PETITION No.374s/29,.x1_fg_ '

CRIMINAL PETITION No---,3'766/zjom' "

IN CRL.P. 3748/2010 ..

BEIEWEEN:

Se1ViJJaya}a1ith_aa.__ I - _ -

(aged 62 years?!

81 Foes Gardcﬁa " .

Chennai --~ 600 £586. » .. PETITIONER

(By Sri, .:1=i_Q11I:;:ﬁ§. V
Sri.A. N.r;1vaIIeetha. 'E _rI;-.Adv.}

AND:
State jI9épr.eseIV1t."ed_V15y'

IN 13: .AC,, Cher_1_r1ai. .. RESPONDENT

I Special PP for

Sri."'Sande*$1j J Chouta, Adv.)

IN CRL.P. 3766/203.0
BETWEEN:

State by the Superintendent of Police

Special Investigation Cell

Vigilance and anti Corruption

Chennai -- 600 035

Represented by Special Public Prosecutor

in Special C.C.No.208/2004 p .y «
On the file of the Special Judge and .3
Additional Sessions Judge

Bangalore City

[By Sri.B.V.Ac:harya, Special PP _
Sri. Sandesh J Chouta, Adv.)

AND:

1. Selvi J.Jayal'a.litha,"' -- .1': V _/ .
Former Chief VMin1"s_ter.; o«;¥'Ta'mi'l --Nad_uj
Residing at l'§i:o.36~.Poes- Gar_cie§1.

Chennai --_.'6oo'

2. Trri1'."'Sas}ﬁ;ala:Zﬁatarajan
WT/o M.Natarajan, "

N 02.1 8', 43"? Stieet.
(East) Chennai #- l6€_)O*--0_0'4

3. 'I'hi1fu V.N.-Sudhakaran
~ / o T. '1' .Vivie"2§aI_1a ndan
A "No}€>"8. ilabibullah Road
' ~ ,Ci1.ennai_ 4%: 600 017.

4. r '--Tmt.'J';'Elavarasi
A W/ o. Latte V J ayaraman
No.31 , ix/Iannai Nagar. Mannargudi
A.'T.Pannerselvan District. .. RESPONDENTS

'(By Sri_«.A.Navaneetha Krishnan, Adv. a/w
__ Uciaya Holla, Sr.Counsel for R1:

"Sri.%A.l~:{.Bhagawan 8: Sri. A.N.Radhakrishana. Advs. for R~4;
' 'Sri. S.K.Venkata Reddy, Adv. for R--2)

3. Petitioner in Criminal Petition No.37-48/2010 has
sought for quashmg of portion. of the order dated 22*'? July
2010 on I.A.No.396 passed in Special C.C.No.2{)V8:;/<ll2}C¥Q4.
Eérayer reads as under: l l

"Hence, the petitioner/A1 most humblyeprays that l V '
this Horfble Court may be pleasedp to call for' they
entire records in I.A.No.396 ofISpecialjj.C;C.'No;208'of f
2004 Special Judge & 3631 "«Ad;r1itional- _Session.__s*._.
Judge [CC'H--3?') at Bangalore andto qurzshor sei';
aside the order dated 221.2010" " in !.A.'No.'3_96'-"of
Special C.C.No.208 of 2004 Special" Judge &, 36"'
Addtsessions Judge (CCI-I_-_3'?}_ atﬂarrgaixare erﬁccept
the portion giving ?'lil9.erty to accttsed to rectify the
defects with the helpfof Experts "arid 'direction to the
accused to furnish theI.na.rnes of" and to
allow the I.A1_ 396 of Special C.C.I\_'o,i208 of 2004 of
the above «said Court "to_j~order scrapping of
available defective'. t:f_anslated' version of entire
evidence 'and~~~to or-cle__r "~de' no:_)o_.translation of the
entire eptdertce (both'io'ml and documentary} of this
case.fro'r'n_Claf:1ilV._tu-».Engt£sh-in. manner known to
law Tj0_ order to=s_uppi_g of the copy of the true
trdnsl--atio.n" 'of-..A'evidenc'e. to the petitioner/A1 and
grant such' otf1er._o1*,_fL'e'.tl'1er orders as this Horfble
Court-rnayv deemﬁt proper in the circumstances

of the caseand'-- thus render jus tice. "

' " -v.1?et:{tio'ﬁer in Criminai Petition No.37/66/2010 has
sough~tjfot' hes under:
set the foltowing directions:

" flfllreaily the portion shown in Column No.4 of the
r Annexures, which are fited along with the objections
of A-1 and A-3 are defective transtatecl versions,

then the accused are at' liberty to get it rectify either
by calling the persons, who are connected to the said
translation work or to refer the same it} some other

Expert, who is well versed in both the languages i.e..
Tamil and English.

To avoid further complications, the name of the
Expert shall be chosen by both the sides in the evve~ntg_

if the accused prefers to get the help of the 2.
rectify the alleged defects or mistakes in trainsllatio-n" r.-
version in English. . » _ r
disposed of and the written objections_.jiled'<by'»A-<1 "
and A-3 are taken on Records." -- M V
issued by the Special Judge andiXXXVl'Additionril«._.
Sessions Judge, Bangalore City 'L_earned,M5agis Irate '
in the order dated 22. 7.201 passed in _I.Av.No.__305. in
Spl.CC No.208/2004 and "produced "hereto as
Annexure-A.
(bl Further direc'__tV.,the speedy,' disposal of the
proceedings in C.CLNo..20-8/12004 pending on the file
of the Special Judge and 1 .X.XXV.l:'~.Addl.S€SSlOTlS
Judge, Barigalore,-City .:as 'per the directions of the
Hon'ble ,Su;-zzrerrie =:Courti~':dated--:_'l 8 _/ left]. / 2003 passed
in Trans {er {Cd} No..--'}'7'~.78,/g 2003. "

-J.

Partireisvareﬂrcferred asfper their ranking before the

trial court. =

Brief factsleaciiing to filing of these criminal petitions

,Aare_itiiat,:,between 1991 to 1996 the accused No.1 was the

State of Tamil Nadu, she represented a

po1it--ical--,_'p'arty by name 'All lndia Anna D.M.K. {AlADMK}'. She

}was defeated in general election in 1996 and another political
by name was voted to power. Complaint was

....tiled alleging that, the accused No.1 committed offence by

abusing the official position. On the basis of the complaint,

Accordingly I.A.No."396., H

<%3&

-rt

and on investigation, accused No.1 and others were charge
sheeted for an offence punishable under Section 120fB IPC

read with Section 13(2) read with Section 13(1) clause {e}-.oi' the

Prevention of Corruption Act on the allegation of

of wealth of Rs.66.65 crores disproportionate"toﬁhe:known"

source of income of the accused No.1. :O1"JA.:¥.'1'Ei'11,.g" of"th'eV:'char-ge

sheet, the jurisdictional Courttook cogn_iiancee.'atid.a_ criiininalgttt.

case was registered in against'v'accused No.1
and others. Another.'_._"':ease.{VAV. reigisterediii for offence
punishable undergsection Section 13
sub~section clause {e] of the
Prevention and possession of
I3ecuni€,§iv")"i.'VtV it Outside India

disproportionate'to.'thc_i{noWn.»source of income by resorting to

clandestine itransferf of"v_fui'ids beionging to the accused No.1

«--withi_:the_A..h(;1.p of 'accused No.2 therein from India to outside

:"vi:oia.ting the provisions of Foreign Exchange

ReguIation"}X.ct.: In this regard, another criminal case was

'guregistered «Lin C.C.No.2/2001.
During the course of the trial, as many as 250
i prosecution witnesses were examined and when some of the

witnesses remained to be examined, accused Not once again

got elected by absolute majority to the legislative assembly and
she was unanimously chosen as the leader of the lflouse.
However, as electing her was challenged. on
resigned to the said office and nominated
the Chief Minister. Once again she ywas by-"
election held on 21.2.2002 and once size
as the Chief Minister on 2.3.2009.
Government, the Public abpelanng in
C.C.Nos.7/1997 and another Public
Prosecutor was appointed,Jthelhvltrial 1997 again
begun on witnesses were
recalled and 64 prosecution
witnesseshllllv theirwvﬂprevious statement in
the Public Prosecutor did not

rnakeany 51%?" pt ~;.toA'*_selek them declared as hostile. The

'PV'«app-e_ara:nce».of accused VNo.1 was also dispensed to give her

"under Section 313 of Cr.P.C. and instead, a

questionnaii=e_ was sent to her and her reply was secured in

uabsentia. ' g_

it H In the backdrop of these developments, one

' iAVii'.I'{'iAnbazhagan, person from a rival political party moved a

.lV'i'i'ansfer Petition {Criminal} 77-78/2003 before the Supreme

{get

.,,_..

Court interalia seeking transfer of C.C.No.7/1997 and 2/2001
from the State of Tamil Nadu to a court of equal and competent
jurisdiction of any other State. The Supreme Court after

hearing. considered the case on the touchstone of the decisions

of the Apex Court, held that. the petitioner therein_llhas*llr:lraade

out a case, and observed that, the public conlfideitcélllin
fairness of iriai is being seriouslylllluriderrriinedl"land'=:great l
prejudice appears to have been cat1_se!:_lfto tl1_e.'p.rosecuti:o13_VV

which couid culminate in grave.iu4l.fniscarriagecsofvjulstice. it Free'

and fair trial is sine qua; non '?._i of the»Cor1stitution.
It is trite law that justicelshouids. be 'done but it should

be seen to have been done. if if 'crirninaitrial is not free and

fair anclllnotlfr-efe_Vfroiri judicial fairness and the criminal
justice system wouldtoel 'a.tj:sta;~i'{e shaking the conﬁdence of the

publicin the"'sj{ls'teIr§-- andllwoe would be the rule of law. With

"V"«theselllobAservations,l"thee Supreme Court allowed the Criminal

Petiti"ons'~a_nc¥ 'lthecriminal cases were transferred.

Et.lis:l'r:j';_1..r::the light of the directions issued by the Apex

lV_Court inlla transfer petition, the cases pending on the file of
A V~ld_Snele'ial Judge, Tamil Nadu were transferred to State of

' Karnataka and numbered as Special C.C.Nos.208/2004 and

209/2004. The order sheet of the Special Court dated

25.10.2004 reads as under:

'The Hon'ble Supreme Court had directed for
translation of Tamil records into English.
Accordingly. the Government of Karnataka tssuedizn
order cteputing 20 professors of Government Col.leges~._
for the purpose of translation. Ten translatorse.
amongst the deputed persons joined today "h_a:2e'
started the translation work.
regarding appointment of RP. Put up--;for..:{:_t,t"ter.Vthe
GPP<earance0j'P.P."

In these criminal cases, the State was r"epresented' by S'pecia'i',

Public Prosecutor Sri.B.V.Acha1#y%'assistec}. Choutha V V

and accused Nos.1. 2 and 4.v't'repre'ser1ted bylVVAd'\"zocate one
John, accused No.3 was re_presented_.gbyf_C3r;S=araVana Kurnar.

It appears that, 20005;._3the7translated copies of

Tamil cllepositioris tlhleddocuments in English were handed
over to eaclitof and to the prosecution. The

SpeCi§al1llJ't1,dge passed an order for clubbing of both the cases

i,.e'.«,,Special.4C:.C.No.2O8/2004 and Special C.C.No.209/2004.

lllliolvtrever; 'against the order clubbing, K.Anbazhagan --

petit'ioner.ir1"the transfer petition filed a Special Leave Petition

:p.l'l'{oVe.3828/$2005 before the Apex Court, questioning the
of the cases. The Apex Court by order dated
"5---;:8.2005 stayed the proceedings on the ﬁle of the Special

0 Court. Later. the State made an application before the Special

No iigfonrzation -- ll

Court for withdrawal of the prosecution in C.C.No.209/2004,
however, the said application was rejected and. as against
which the matter came up before this Court in
Revision Petition No.938/ 2009 and by order
this Court permitted the prosecution to .0»
C.C.No.209/2004. The Apex f; 2'
withdrawal of prosecution disposed of ,
by order dated 30t:-». January 20 against the V
clubbing of the cases. ' 'before the Special

Judge. the prosecution filed I.A.No.321 and

so also accusedétiiied 1.13.-..Ncup.3'22."' AVI.A.V'.'1'*'.'vr_.)...IZ§21 was for recalling

of the V. was for summoning of
documents." by order dated 25.2.2010 allowed
I.A.No.3x2«1'forVrecai1ii~i.§uzitnesses and rejected I.A.No.322.

Aecord_ingly." ordecdatehd 3.3.2010, he issued summons to

' "~v_A42'-pérosiecution witi'1e'sVses for appearance on various dates

and 26.3.2010. Same day accused filed

1.Pi._N'os.3é0e:'I.a:nd 341, one for service of summons through

RPAD and another for directions. Thereafter, accused ﬁled

A application in I.A.No.346 seeking modification of the

order dated 3.3.2010. I.A.Nos.340. 341 and 34.6 were heard

<9:/A

("5u-~

and by common order dated 5.3.2010, I.A.Nos.340. 341 and
346 were dismissed.

10. However, the accused No.1 ﬁled Criminal Peliirtion

No.79 / 2010 challenging the taking cognizance by the'

order dated 5.6.1997. This Court by order 'dated 1?o;;~3C',12o'1-o_g

dismissed the said criminal petition and as againstvthgevvgsame}

accused moved the Supreme_.Court'7in:"--S.L.P.gNt;

however, the Supreme Court":Vdismissedl with

direction to reschedule 'dates for trial.j"e'.1n pursuance of the

direction issued by V Court in
s.L.p.No.2248[.2«oi the trialﬂeourtreescheduled the date and
fixed the same the accused filed another
application * ._ 'seeking dropping of entire
proceedingson the "grodri-e,"tr1at the investigation conducted

was iillegal and"th_e"saidd'application was dismissed by the trial

ddjappears that the accused No.1 directly filed

against the said order before the Apex

Court, the said S.L.P. was disn1issed- as withdrawn

the' 'petitioner sought for withdrawal of theS.L.P. with
libernj to move the High Court under Section 482 of the Code

Criminal Procedure.

1 1. It is thereafter. accused No.1 requested the trial
court for supply of three sets of copies of the translated copies

running into 70,000 pages each set. Accordingly. three}-:.ets_of

copies were furnished to accused No.1 on _

court also issued summons to the witnesses.».ti1owever., the

accused No.1 ﬁled one more 1.AL__

scrapping of English translation arid 'for 'dd;1dvd'.

translation. Accused No.3 also tilted'sin'1ilar'-atiplicatipn. Trial
Court after hearing by it's"o_rde_r'dated_ 212'.-?.201(1"Arejected the
said I.A.No.396 with certain rewscheduled the

trial by ﬁxing theddtes 6_.s}~20*1.o,"'9.8,.2'0'1o, 11.8.2010 and

13.8.2010. 251$ Listggagainstffthe't..s:aid'*:,:order dated 22.7.2010,
rejecting"I.A;No;396""directions, accused No.1 has
filed Criminal VPettti.on:'il\IoI3%%3.~8/2010 for setting aside the

order and fog a11dw_1ng."t1§é I.A.No.396 and Special Public

~"1.o_l?'rosf.§c3t.1to_if has d1sd....__f:1ed Criminal Petition No.37'66/2010

7._agai'r1st the' ~1sfsue of direction.

'"12. S1:i..BV..V.Acharya, learned Special Public Prosecutor

'and Senior Counsel submitted that, the accused No.1 and
"..ot'her"«...'accused have been charge sheeted for alleged
=«l.'rac'cun1Au1atior1 of wealth by accused No.1 disproportionate to

known source of income between 1.1.1991 to 30.4.1996

ie, during the period when the accused No.1 was the Chief

Minister of Tamil Nadu. The offence alleged are one

punishable under Section 13{l) clause (e) read with Section

13(2) of the Prevention of Corruption Act read with Section_

120-13 read with Section 109 of IPC. The Apex

case of KANBAZHAGAN mvs-- SUPERINTENDEN35.

AND OTHERS reported in (2004) 3

while transferring the matter has iss'ued._directions,.r

other that the trial before the Judge' sha_1lxoori1nience it

as soon as possible and will then~~'prooeeci front 'day.-to day till
completion. The Special the case from

such stage as he deerns fitVV'and:pr'ope»r_gi11V-accordance with law.

Liberty was' "given l'rosecutor to apply for
recallingthe have resiled from their previous

statement. furtherAs--ubrJaitted that. the Apex Court taking

v into consideration allvvthe'circumstances has issued a direction

llﬁto to go on with the trial on day to day

basis."'VlThe sheet is filed in 1997 and even in 2010, the

[trial has not been progressed.
it " regards to the request of the accused No.1 for
of English translation and prepare denovo

~ translation. he submitted that. such request is made only with

intention to protract the trial for the political advantage. The
translated copies have been filed and served on the accused

on 28.8.2005 and since then, at no point of time, any in

the translation has been pointed out. Even if__there_' _

discrepancy or correction in the translatiorltvit'mean ..

corrected if the mistakes are pointed outlojy

that itself is not a ground to scrap' entireAtransliationfi.

which runs into 70,000 pagesid"..}fi1.ere some minor
defects, such defects matter is
taken up for hearing, the entire
translation 13;. I trial court from
proceeding in the request.
Prosecution the'._co"rrection of mistake in the
translation' nor object for correction of any

mistake in the traVI1slati_on~;":if pointed out. The translation is

'ibyi _thei__Proi;esso.rs; who are experts in the ﬁeﬁci. there is

no the same. Asking for denovo translation is

totally' unwarranted in the facts and circumstances of the

Q case. x

0 " iii: Even the accused No.1 in this Criminal Petition has

. notidpiointed out as to what are the mistakes. Learned Senior

"Counsel submitted that, if the mistakes in the translation are

pointed out, the same will be corrected. The offence is
committed during the period from 1991 to 1996 and charge

sheet is filed in 1997 and since then, for one or othevrreasovn,

the trial is delayed. He submitted that,

translation is remedial, which can be Correc'te'd-. 1je--..r¢n. at the " *

stage of the argument. same will notprej.i1diee,t.helcasefol the

accused and some mistake in the__transl.ation, s.li'o:ild_VnotV§bel ;

ground to delay the trial. Whe'n_l'the evidence reeorded is
already on record, the co_rrection:_in" tljieitranslation could be

done any time and will not have effect' the further trial.

15' amongst 276
summoning only 41
witnesses for and which would be done in
accordanceV»..L§vvithl contemplated under the

pI'OV1Sf;Q31v1s_. of lseetion Q77 and 278 of Cr.P.C. read with

Crirninal of Practice. Insofar as the evidence

of it to be recalled, learned Special P.P.

subnii_tted.- if any name of the translator is suggested,

3"-'««___lwho are easily available in Karnataka, he has no objection to
l.alcc€_ptiSuCh person as a Trarislator for recording the evidence

K lot 43] witnesses.

s-'

E6. Per contra, Sri.Udaya Holla, learned Senior Counsel
appearing for accused No.1 submitted that, criminal case was
registered in Tamil Nadu. the alleged offence is committed in
Tamil Nadu, the witnesses are from Tamil Nadu and uni-ost of

the documents produced are in Tamil. the

court in Tamil Nadu is Tamil, the depositions o17t__he

have been recorded in Taniil. I-Iowe'\?eAr,"in. View _:of_tli.e order

the Apex Court for transfer of criminal cases frcrn'TarniLi\Iadu_

to State of Karnataka, the is." being ",co'n:duct'ed in'

Karnataka. The language oi-""thp_e-- court iv-Kariiataka is
Kannada and not Tamil, anther 'A-Jiudge does not know

Tamil language,_:lex[en the'E3peci«al--__Pros-gzeutor and defence

lawyersivdlolv thlevllofiicial language of the trial
court being Kannada Stand--.,4lla.nguage of the witnesses being

Tamil,_ they' lwill"notjunderstand Kannada language and if their

..vVers'i_jdn translated--------into English, it has to be done only by

reoal*ling._ allﬁsueh witnesses and their evidence has to be

recorded lin'i:'j_ac'cordance with the provisions of Section 2'?"/"'

clausleo.vflCr.P.C. The evidence already on record being in
in l..:'Taniil.,& and the court will be only looking into the translated
' deposition in English. in such a case, if the translation is not

" "done in the presence of the witnesses. the translated version

cannot be relied and it would defeat the very object of fair
trial. In this regard, he relied on the provisions of Section 278

sub--section {3} of Cr.P.C. and submitted that, the

witnesses do not understand the English langtiage~..lor:

Kannada language and their evidence, if not _i.nt.e_rpret.eti._iI1tl*ieu

ianguage known to them, it would fidefelaltl

recording the evidence as well as the verj%.Apurpose'l ofg

conducting a trial on the basis evildencevf such, the
interpretation of the evidence in the presence of the
witnesses is necessary. on a judgment
reported in AIR of RAMCHANDRA
KESHAV VGOVIND JOTI CHAVARE
AND if power is given to do
certain the thing must be done in

that Way and. notat-_ a1l--._ar1dl other methods of performance are

..t_forbidde--n--;«" He further relied on the decision

l_{'2;t)O7) 5 SCC 85 in the matter of KUNWAR PAL

SJNGH (DE}:joj.'iBY LRS. --vs- STATE or up. AND OTHERS and

',.subrnitted._ that, where any statutory provision provides a
it particular manner for doing a particular act, that thing or act
be done in accordance with the manner prescribed

ll "therefor in the Act. When law requires that the deposition of

the Witnesses to be recorded in the language of the court and if
the language of the court is different from the language of the
Witnesses, the deposition of the witnesses must be translated
in the presence of the witnesses.

17. As regard to the conduct of the trial is coneelriiegdtlthe

Apex Court has directed the trial court to fix caleiildarV_"'of
the triai according to the convenience. ' of! and

submitted that, for the fair and proper

translation of the deposition is Even iiii_:i's'tal-ge may* V

become fatal to the accused.p_....ll}i-e_ also .rel'iedA another
judgment reported in in the matter of

G.K.DUDANI AND OTHERS' "~s.sfg OTHERS and

submitted t.i'iatl 'eve-ritfbod3r:i:2cl"u.ding High Court have to obey
the orders the there is no way to avoid the

samegl 'He relied. this decision to submit that. day to day

fair trial, fairness of procedure and the

1 that the court should record correct and

_ accuratetranslation of the evidence in accordance with law.
also relied on decision reported in AIR 1956 so 116 in the
of WILLIE (WILLIAM) SLANEY wvs-- STATE OF MADHYA

WSADESH. which reads as under:

2%"

'as in all procedural laws. certain things are
regarded as vital. Disregard of a provision of that
nature is fatal to the trial and at once invalidates the
conviction. Others are not vital and whatever the
irregularity they can be cured: and in that event»
conviction must stand unless the Court is sa_tisftedV. 3
that there was prejudice. Some of these rrta.tters"az?e 9' '
dealt with by the Code and wherever that the case

full effect must be given to its provisions." = --. f b *

He also relied on another decision refrorted [I 7

in the matter of SHIV KUMziR«1.._V--us-it'-Hvt<,AM,:"ci5;iNb.V3AND.i"

ANOTHER and submitted that, _the,:_expectedattitufde of the
Public Prosecutor while._..l:r,ontluoiting._V_'wpfbsecution must be
couched in fairness not....oi11y'v--.to_ and to the

investigating it'); as Well. If the

accused:"ismentitled beneﬁt during trial, the
Public Prosecutor scuttle or conceal it. On the

contrary, it ihli Public Prosecutor to winch it to

'~ the n1akeit'av.ailable to the accused. He further relied

a._ ~.deeis:§n--._ reported in 2004(3) sec 767 in

case (supra) and submitted that, the Apex"

[Court transfer of this case from Tamil Nadu to
"4.f;ai'Iiat,akal has observed at para--3O that, free and fair trial is
non of Article 21 of the Constitution of India and it is

f:ie'l whether the party is actually biased or not, but question is

aI"'\

whether the circumstances are such that there is a reasonable
apprehension in the mind of the party that it is likely to cause

bias. He submitted that, in order to have a free and to

create conﬁdence in the party as well as in

court must adopt the procedure, which is _free,..:ii7air=.an.d just. p

and not to circumvent.

18. He relied on Rule 8_of__the lliuulesﬁ

of Practice and in conformity utvithllSection'-2lf7'?v':clause {c} and
278 sub--section (3) of isvvreclvuired to be
recorded. When a witncspsisl language of the
witness is other theftfcourt, his deposition

should be tirans'la_teVd:l"hy4'theAut1'an~slla:to1"appointed by the court

in accoifdancelpixrivtthe~lCrin1inal Rules of Practice.
19;' also V ';§u'bt£1'itt'éti that, in the petition filed by

accused _No.l.l, 'ac'clusedl'No.l has produced at Annexure--I, the

lldeplositiion iri,_Tan1il language and a comparative chart at

t'AnnexurV¢}.§.IbV infrespect of some of the witnesses pointing out

the'mistfak3s:'~v'in the translation and if the translated deposition

relieldvand appreciated, certainly it will affect the interest of

l i;he._accused, as the translation is 1"iOt only imperfect but it is

«Sw:

not a true translation of the deposition and if that deposition is

relied, it would necessarily defeat the free and fair trial.

20. Sri.Navaneetha Krishnan. learned Advocate for
accused No.1 submitted that. the original evidence is»g'i.rr.gTamil

and is not incriminating, however, the English is

incriminating and in this case, accused No.1
the defects in the deposition of as rr'1any"as_ is the l 7

purpose of this case. He sub1nittedA:'tha't_,V_ the tra.nslatio1--r'is:Vnat

done by the expert and if said translated dd-eposiltion
relied, as the court does. I'lOt',.I1"T1€i'¢'i'éﬁ3.I_ld the"'i'amii language

and is not the language' of the prejudice the

case of the accused, erifa. reported in 2010(6)

scc l:7._in--. the VASHISHT ALIAS AMNU
SHARMA "'"US"' tsrA'=re"':ivcr"----_or4 DELHI} and submitted that, the

courfﬁrnust en"su_reV that the Prosecutor is doing his duties to

V:'thegVi'utrnoAst."lei{el of efficiency and fair play and submitted that

A the said judgment has relied on the reported

decision__"in.A:'°2O04 Vol.4 SCC 158 in the matter of ZAHIRA

:"'HAeIeULLA I-LSHEIKH --vs~ STATE op GUJARAT wherein it is

, ' 'heidas under:

"43. The Courts have to take a
participatory role in a trial. They are not
expected to be tape recorders to record whatever

is being stated by the witnesses. Section 31 1 of

the Code and Section 165 of Evidence Act confer
vast and wide powers on Presiding Officers of
court to elicit all necessary materials by playingx",
an active role in the evidence collecting processg
1'' hey have to monitor the proceedings in aid of V
justice in a manner that something, whichils notfjj -1- "
relevant, is not unnecessarily brought. __ into, " h
record. Even y" the prosecutor is remiss' ' A
ways, it can control the proceedings 'effectively 7
so that the ultimate objective =.i.e. tntth is VCl!.'I'ViDe'C{V..,,l,__
at. This becomes more necessary before" the if '
court has reasons to beliez;_e thaithe prolsecuting _
agency or the prosecutarfisy not acting '
requisite manner. The court_ cannot afford to be
wishfully or pretend to be'*.blissj"ully tgnorantor
oblivious to such' s_eriou,s pitfdEls_ ;o_r"derelictton of
duty on the part of the prosersutingyrragency. The
prosecutor who does not actfairly andacts more

like a counsel for:'the'defence>-is ct liability to the
fair judicial1;.s'ystem, iand 'courts-could not also
play intro' they_hands__of..suchfprosecuting agency
showing .:ihdiffe'renc'e.'j'~or' 'adopting an attitude of
totqiValcoj:zegg,.VV" ., * " "

The Apex "that, a Public Prosecutor has

wider set ofduties. merely ensure that the accused is

the Vd"u--ties____ot ensuring fair play in the proceedings,
all» ryeleyantﬂfacts are brought before the court for the

llldeterinivnatmnl'yofvtruth and justice for all the parties including

thef'y'icti'rhs§' must be noted that these duties do not allow the

ilfrrosecutor to be lax in any of his duties as against the
_l 'accused. The court must ensure that the Prosecutor is doing

"his duties to the utmost level of efficiency and fair play.

2}. He further relied on another judgment reported in
2010 (2) SCC (Criminal) 904 and submitted that, the entire

translation is one without jurisdiction.

22. Sri.Venkata Reddy. learned Counsel':__:appeearingV_$for'

accused No.2 submitted that, accused' iisjllgrilot V

servant and the offences alleged llareii-one

Section 13{i] clause {e} read §v.i.t:lri~~_Section__ {2} of

the Prevention of Corfllption Sectioriis 109 and
120--B of IPC. He such charge cannot
be framed agairist,__acct'ised' allegation is one of
abetment. tliiaté. an evidence is partly
recorded Magistrate may not
act onithe of Section 326 of Cr.P.C. The
Apex as to What procedure to be

adopted by Slpecialiludge, as such, if the evidence is recorded

'v:'bj,.7':'ﬂ"L'3 Tamil Nadu in the language of that State, that

an evidence of the court in Karnataka, as

such, it.__vcan;91ot be treated as an evidence on record. He also

"relied on-- 1a judgment reported in 2004(3) SCC 76?' (supra) i.e.,
transfer case at para--34 and submitted that. there is no

_,_di%rection to adopt particular procedure. Learned Special Judge

has been directed to proceed from such stage, as he deems fit

and proper in accordance with law. In accordance with iaw
means. the procedure contemplated under the Criminal Rules

of Practice in the State of Karnataka. He also reIied'~o_n~_slRu_le 8

of the Karnataka Criminal Rules of Practice

that. the evidence recorded in Tamil Hto

translated by the interpreter in accordan.c3e :8.__&o'f;the
Criminal Rules of Practice. l l V l l l
23. Sri.A.H.I3hagawan, anfpearing for
another accused submitted th_at,i. oilcase from one
State to another State :t:ot'allT the evidence
recorded at as an evidence

recorded in _Ka;rnatal"<ar~. gasffthletvcouijt "is required to record the

evidence in the court in Karnataka. The
language court l Karnataka being Kannada. the

evidegnceei. recordedivby the court at Tamil Nadu cannot be

,regarded_as an evidence recorded in Karnataka. He further

learned trial Judge has to find out as to

what isv-[the"incriminating statement and for that, he has to

the evidence and if the evidence is in Tamil language, he
'cannot rely on the translation to find out the incriminating

....niaterial against the accused, and the accused will not be in a

position to answer the same, the evidence is not for the benefit

of the Prosecutor or the defence Advocate, but it is for the
benefit of the court and if the translated version of the evidence
is considered, it will not be beneficial to the party nor beneficial

to the court nor such trial could be construed as and

fair trial in View of the transfer of case fromfone to

another State.

24. In reply, Sri.B.V.Achar§ra, leaned '1 Speci-&1l..e:eelI5ublic

Prosecutor submitted that, tran_slationA.of~ the evidence reins to re

70,000 pages and it has been 'prepared by ltiae-I ertperts. They
are Professors and trarjlslatiohlj'll;"3,*t?iii15£"been served in 2005,
raising objection in 2010 also submitted

that, if there defects.~'or'~or:1issiOriffor requires addition

in trara_slati'onV 'a11'd_'ifeepointed out, prosecution is not
reluctant "to *accept'°theV."sarne. Prosecution wants fair and

properutrial, prosecutiori is neither interested in conviction or

but«.._trial must go on as directed by the Apex Court.

any justification, trial should not be

hin'd.ere.d.' ~.Ei'e submitted that, the provisions of Sections 277

11nd 2.78. of Cr.P.C. are not applicable to the facts and

' *..circu*mstances of the case.

25. In the light of the submissions made by the learned

Counsels on both the sides. the point that arises for

consideration is:

Whether the evidence recorded by the Special Court
constituted by Tamil Nadu Government in the t7'ia2i.of
C.C.Nos. 7/1997 and 2/200.1 now numbered
Special C.C.NOS.208/2004 and 209/2004 _
be scrapped in view of the transjer of the cdsesfrom --
the State of Tarntt Nadu to State of dS_ the _ 2
evidence recorded is not in the"i'a>*:guai3e of the court "
in Karnataka? T . I ' l ..

26. The facts, which aregnot in lldisputeﬁarie :tha;t,f'tviro*cg

criminal cases were registered in._C;C.I\§os'.2?',/11997 and 2/2001
by the XI Addl.SpeCia1 .,,l{1.dge com Nov.lA),"Chennai for

an offence punishable under IPC read with

Sectionllllél sula»§sectio11_j(2).:'.furth_erV'read with Section 13(1)(e) of
the Prevention-- of Act against the accused in

respective §;"as<;;~'s.. Acctzsedl No.1 was the Chief Minister of the

$12-'::lCitlA betiiveeI1"V1991 and 1996 and from 21.2.2002

government was formed. Upto August

prlosvecultion had examined as many as 250 witnesses

before. the $pecial Court at Chennai. One of the rival political
A person by name K.Ar1bazhagan moved the Apex Court
for transfer of the cases from the State of Tamil Nadu to any

"other State on the ground that the accused No.1 is the Chief

Minister and the witnesses examined were recalled and after
recall. the said witnesses have resiled from their previous

statements. Even reply to Section 313

questionnaire, the accused No.1. had not personally

before the court to reply, in turn. her replyi~~'.vas.dSecuredin

absentia. The Apex Court consi,dering.fivthe higravitgt

matter, involvement of the ,__politic_a1" partiest

considering the evidence of thelvvitnesVsesl"re.cord:ed.l:'t;>y the trial
court, found that, for sine qua
non under Article 21 of justice and to
keep the pub1ic'c'ont"ide:ncea ordered for transfer
of both the Nadu to State of
Karnatalta V asiinder:

":30. Free and 'failrvis sine qua non of Article 21 of

the Coristituiion.' It trite law that justice should not

only done 'but--it should be seen to have been done.

4; Q' the criminal trial is not free and fair and not free

from bias, judicial fairness and the criminal justice

_ ' sgste_m«.1,vould be at stake shaking the confidence of

3 _the'public~in the system and woe would be the rule of

_ It..lis"ing9ortant to note that in such a case the

question.' is not whether the petitioner is actually

bi_ased'but the question is whether the circumstances

such that there is a reasonable apprehension in

x T the mind of the petitioner. In the present case, the

' circumstances as recited above are such as to create

reasonable apprehension in the minds of the public at

large in general and the petitioner in particular that
there is every likelihood of failure of justice. "

.10

and accordingly, passed an order transferring C.C.Nos.'7/1997
and 2/2001 pending on the file of XI Addl.Special Judge
{Special Court No.1), Chennai in the State of Tamil Nadu to
State of Karnataka. While passing the order of transfe1:.__it also

issued directions. which read as under:

"34. In the result, we deem it expedient 'for-th'el
ends of justice to allow these petition_.s;""v--The only
point that remains to be consir£ere'd« now is. to'u_zhic'hf; &
State the cases should be irans_ferredj? We 'are*-oj"ihe , .
view that for the convenience ofthe. parties ._the,S«.tai§.,,., V'
of Karnataka would be.»r'nost COlriU€l1ienf»,'d'L£€'.VtO its
nearness to Tamil Nadu. 'Accordingly,' petiiioris

are allowed. cc No.7 of 199.? and cone; :2 ofg_2o01
pending on the file of the XI'.Additional==Ses'sions
Judge (Special Cour"tr.No..'1),_Chennai,in the State of
Tamil Nadu shall' ' s'tandf: with the
following directions:H_g_" it ' _

llll Tile State of Karnataka in consultation
with the ChiefJiLstir_:e the High Court of Karnataka
shall lCOnstitute»a'iSpeeial. Court under the Prevention
of Cionuption Act, _1":;'?.88 to whom CC No.7 of 1997
and CC No.2 ':_)f'2OL...i pending on the file of the XI

;A'dditiona-l _ Sessions Judge (Special Court No.1),

._"'¥Chen.n_ai inl"'the._..-State of Tamil Nadu shall stand

V transferred. The Special Court to have its sitting in
-. .Bangalor"e..._

. A {b}? As the matter is pending since 1997' the
State of Karnataka shall appoint a Special Judge
withinv a month from the date of receipt of this order

the trial before the Special Judge shall

A' ' ._commence as soon as possible and will then proceed

it * . _ jrom day to day till completion.

(C) The State of Karnataka in consultation
with the Chief Justice of the High Court of Karnataka
shall appoint a senior lawyer having experience in
criminal trials as Public Prosecutor to conduct these

rneritls). ..

cases. The Public Prosecutor so appointed shall be
entitle to assistance 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 Karnataka 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.

{d} The investigating agency is directedl_' ;. S

render all assistance to the Public Prosecuta-r__an.d.h'L's S

Assistant. _-- »-- ., ~

{e} The Special Judge fl appointed S in .
proceed with the cases from such stage as'he'~deerr;s"~.. "

fit and proper and in accordance with law./"

0') The Public Prosecutor will be "at liberty
to apply that the witnesses who have beenrecalled
and cross--examin'ed"'~by theV.acc«used..and who have
resiled from their prev.ious__staten1ent,b be again
recalled. The PublicH_Pr"osecutor w'ouidl_'l3__e--~at liberty to
apply to thel'c.ourt<to have these witnesses declared
hostile andto seek: permission -_to: ;ross--examine
them. _. «Any syc'.h"a;;plicatio'n...i;" made to the Special
Court :'shall'_,be allowed. ' '---T:1eV'Public Prosecutor will

also at to that action in perjury to be
takenagainlst soymgo: all such witnesses. Any such
applicationisl'willbe~--"undoubtedly considered on its

(g) The State of Tamil Nadu shall ensure

'-that" all documents and records are forthwith

trctn'sferred"'to the Special Court on its Constitution.

l"l'Ihe State of Tamil Nadu shall also ensure that the
tviinesses are produced before the Special Court

whenever they are required to attend that court.

{h} In case any witness asks for protection,

lithe State of Karnataka shall provide protection to

that witness.

{i} The Special Judge shall after
completion of evidence put to all the accused all

relevant evidence and documents appearing against
them whilst recording their statement under Section
3J3. Ali the accused shall personally appear in
court, on the day they are called upon to do so. for
answering questions under Section 313 Qf._th_e?._
Criminal Procedure Code."

27. From the directions issued by the
clear that the transfer of the Cases"shouid'l..&be.:.efiected*--within S T
one month from the date of receipt the

the trial shail commence as soon» as."possil;2le_: then'

proceed from day to vday tilli-theVg_:'conipletion.v-.. Tfie State of
Karnataka was directed' lawyer having an
experience in" with the Chief
Justice of to be appointed as
thelcvases and said senior lawyer
was permiltted to ::as;~sistance of another lawyer of his

choice. The Special'-._bJu'dge so appointed was directed to

the from such stage, as he deems fit and

pl "accordance with law. The State of Tamil Nadu was

disrelcted ltoffenlsure that all the documents and the records are

forthyizith transferred to the Special Court on its constitution.
if '~ was given to the Pubiic Prosecutor to apply for recalling
the witnesses for examination and the Special Judge was

V "also directed that after completion of recording of the evidence,

he shall put to all the accused all relevant evidence and
documents appearing against them while recording the
statement under Section 313 of Cr.P.C. and the accused shall
personally appear before the court on the date they agrepcalled
upon to do so. . S

28. Thus, it is clear that, Special Judge
continue the proceedings from suchlstageg as S j
is not in dispute that, by the time
evidence of as many as 276 were and if the
prosecution is not seeking reca1l.i"nglcf..thetwitnesses and if
there are no other uIitnesls.e'sll'toi§V:'l3::e the next stage

was only to record the accused under Section 313

of Cr.Fl;.C. in the order of transfer passed by the
Supreme Court on hlléih November 2003, Criminal Misc. Petition

Nos} 1439-40/'2flOl?l were filed seeking modification of the

lilorder "1893 November 2003 interalia on the ground that,

atmosphere and large scale agitation by a

section .,jol' people of Kamataka targeting the applicant

glp."(accuse'd-- S. No.1) as well as Tamil speaking people and on

_ it 'accotint of the highly sensitive Cauvery water dispute, the trial

.,._i.f; allowed to be continued in the State of Karnataka, the

personal security of the applicant would be seriously

gal

jeopardized and free and fair trial would not be possible.
Another ground was that, kidnapping of Kannada matinee idol
Dr.Raj Kumar by Veerappan and in this constraint
relationship, a fair trial as envisaged under Article 2g'i"~--pf the

Constitution may not be possible. Against the said.._app1it:'ation,

State of Karnataka filed a counter affidavit

Additional Chief Secretary.

29. Apex Court by itscoi"-der dated l7"u?=l5'ebruar$f

disposed of the Criminal Misceldlaneous recording
the statement made oni__b'chal.f of of Karnataka in its
counter ai"f1davii:_ ensuring" .a security to the

accused and also"p;eiisui*ing all necessaryccassistance for the free

and fair triall TiieiVApe3i:_jC--ourt placed on record the relevant
statement'-gin the affidavit and rejected the said

application. doing so, the Apex Court reiterated the

directions a1i'eady issued in the order of transfer and observed

"' as-l'underE* ._ ' V A

'fin' view. the aforesaid directions have
.. adequately taken care of the security of the
wimesses and others. "

A"l'h'eHState of Karnataka in its counter affidavit at para-9 had

it undertaken to arrange for official translators for translation of

Tamil documents and witnesses' depositions. The said para~«9
of the counter affidavit was reiterated by the Apex Court in its
order, which reads as under:

"This Horrble Court when it made its Or;_cier* _
aware of the fact that many of the docnn'zents.tuotilCi -
be in Tamil. Karnataka has arranged--'f0if~..Oﬂicia1
Translators so that the trattslaiian 'of _.'._Tamii "A
documents and witnesses'; depos:itio.ns._
effectively done." A' '-- .. "

In the light of the undertaking by oliiivarnatakail
Criminal Miscellaneous" Pgetitions 'A - _;_1ismissed'" thy further

observing as under:

"Before witit the ---.'*~record, we must
uneqiiivocaliy _ say _that_ in"a[jd'emocratic country like
ours. ?govetn_ed"'.'3y Ruler 0f::LC'lLU. the efficient and
independent; :_ judiciary " manned the subordinate
courts,'uti.vherefV'ju_siice is _administered impartially,
fearlessg of'*pubglic._giamour, regardless of public
responses. lindiﬁerent to private, political or
partisan inﬂ-uenCes."'«--.cWe have no least doubt in our
mind that thei-.learned Judge who has been assigned
4; thejob uJil.l_ do well in discharging his divine duly in
..':_"i~acCordance 'hwi--t--.-'tlaw, keeping in mind the above
' prinCipl°e.._in view."

30. :\i"ﬁ.IfQ1TiV"£i""i€ observations made in the order of transfer

passed by Apex Court and thereafter in the Criminal

J3/iiscellaneous Petitions, Apex Court accepting the statement
_ it 'the5State of Karnataka to provide all such assistance for the

...s.;{fety and security of the accused and witnesses for free and

fair trial, and taking note of the fact that in View of the
transfer, the evidence recorded by the Special Court at
Chennai and most of the documents produced might be in
Tamil language and the Tamil language is not the langdeige of

the court at Karnataka, has ensured that

Karnataka would make arrangement for trans3ationV.loflt11e V'

documents and the depositions, which"are_ in 'I?ar.nil«.langvuag'e

into English.

31. The transfer of thecase from one court{._"to...anothe1'..l'

court within the State or from one-Sta.tge tolhariothervfstate, the
proceedings of the transferor vitiate merely on

the ground of t.ransfer..~-- While issuing

directions olbseiaied -that, the Special Judge shall
proceed fromllsuch stage, as he deems fit in

accordance with .law.

" . fit to note that, the trial of the cases was

at stage when the prosecution had examined

almost all the witnesses, the recording of

"the evidence of the witnesses has been done in Tamil

it glhlangulage. The Tamil language is the language of the court in

_fFalmil Nadu. It is nobody's case that, the evidence recorded by

Special Court at Chennai was not in consonance with the
provisions of Section 277 of Cr.P.C.

33. However. the question is, as to whether, of

the transfer of the cases from one State to anoth.erl'Sta.te' _

being change in the language of the court whethet1'.. the entire "2.

evidence recorded by the transferor:=.courtcbeconiesredurndant

in law and required to be scrapped? It,is"in this reegard;

appropriate to refer to the relevan't..provisioln-s to mode
of taking and recordingtot. lmllvvvllenquiriles and trials.
Chapter XXIII deals and trials.
Section 272 ;"'o1l"'AJCr.P}C. that the State

Governmentilmaytl'd.etei?ni:ne'.fgvhat:,:sha.ll"be, for the purposes of

the Code of the language of each court
within the the High Court. In State of

Karnataka, Kan'na_daland English are the official language. In

lc'as,e'Vlof of evidence by the Sessions Court, the

276, 277 and 278 of Cr.P.C. would

apply.,__ saidl provisions read as under:

pp p Record in trial before Court of Session:-

In all trials before a Court of Session, the

evidence of each witness shall. as his
examination proceeds, be taken down in writing
either by the presiding Judge hirnsetf or by his
dictation in open Court or. under his direction

and superintendence. by an officer of the Court
appointed by him in this behalf.

(2) Such evidence shall ordinarily be taken downing
the form of a narrative but the presiding Jndge_'
may in his discretion take down or cause to be

taken down, any part of such evidence -1-

form of question and answer.

(3) The evidence so taken doi.vn"s'hI.11l be

the presiding Judge and ,t'orrn',part"of'tlie_. ,1-'

record.

277. Language of recorcfqf evnidenccgﬁ.,In'~-every:
case where evidence is down 'under section
275 or section 276; * ' = V

(a) if the witness language of
the Court, it shall be :ytalten'--.fdown in that
language:_. ' I ..

(bl if_,he%giiievs--.1evidence in any other language, it

may. if. prac.tic'ai;le, be 'taken down in that

__ g_langu°age.,__and_iﬁit' not practicable to do so, a

t'ranstaiion'»Qf the evidence in the language

_ of the'«.Court'-._sh,ail~ be prepared as the

'I,examinationofthe.uaitness proceeds, signed by

the il_Magisti'aie "or: presiding Judge, and shall
form part of thelrecord:

°'{c), .__where und-e-.-"clause (b) evidence is taken down

_in_ ayylanguage other than the language of the
Court; a true translation thereof in the language

T' fof thew"Court shall be prepared as soon as

practicable, signed by the Magistrate or
presiding Judge, and shall form part of the
zrecord:

it 'l"',Prolvided that when under clause (in) evidence is
..taken down in English and a translation thereof in

the language of the Court is not required by any of
the parties. the Court may dispense with such
translation.

2'?8. Procedure in regard to such evidence
when completed:~

(I) As the evidence of each witness taken under.
section 275 or section 276 or section 27.6fts'V._
completed, it shall be read over to himyéyyin other,
presence of the accused, if in at't'endan_ce,'"or'_'of i.-
his pleader, if he appears by pleader, and shall, if
iJ°necessCU'y. be corrected. «

(2) If the witness denies the correctness--icof.afty'pCLrt , .f
of the evidence when the Same read over
him, the Magistrate,'o.r_ presiding Judgevmay;
instead of correcting," the evidence, v-_me-,k"e~V a
memorandum thereon ofathe objection to it
by the witness. and sh--a!ly "add..such 'revrnarks as
he thinks nece*f'$CtTy.

(3) if the record of the_ye*:5_idence.iis--[in_ 5a language
dﬁferentfrom that in which it hogs been given
and ;thci;_witness§ 'does fnot .._14nderstand that
langV:iageLj_V.th.e'vrecord shall be interpreted to him
in3the_:-Ianguage"'ir;«,which it was given, or in a

__ langt{.a"ge1.:u_)hich'hVeV 'uhders "

343. Sectior172?7_6 requires the evidence of each

of the witnesses shah, asyffhis examination proceeds, be taken

V. writing' the presiding Judge himself or by his
court or, under his direction and
by an officer of the Court appointed by him

_ in and evidence so taken down shaii be signed by

Ji1aecI?res'iding Judge and it shail form part of record.

":35. However, more reievant provision is Section 277,

f "which deals with language of court. In case the witness gives

««§»€,,,"3'~»-

evidence in the language of the court, it shall be taken down
in that language. lf he gives evidence in any other language, if

practicable, may be taken down in that language and_iin_rease

it is not practicable to do so, a true translation of

in the language of the Court shall be the"

examination of the witness proceeds signed by ."the--.1\'/£a[girstr.e.tAe

or presiding Judge. The scopeof Section clause

that, if the evidence is given in aiianguage other
than the court languagie;~.g,_it forxthe court to
record the said evidence" If it is not
practicable, it" 'i'ng§w- tafar{s1ated'«:."'sitnitiltaneously as the
examination. In this case, it is not
in disptiteVVt11at.a of 276 vxdtnesses has
been. at .Chennai in Tamil ie, in the

language ofthe_Said*--,_»'coart and that complies with the

,.Vrequ:ii'eInerit:.y_of Se'ctien*2.77 clause [a] of Cr.P.C. However, in

Vi.evv --of cases from one State to another and the

language lolflthiel Court to which they are transferred being

differentvgtheé evidence has to be in the language of the court.

it "..fltAisl'nobody's case that the court in Karnataka is recording the

* evidence of the witnesses whose transiation is filed. The said

" evidence is aiready on record. There is no fault in recording of

the evidence, as it is recorded in the language of that court
and in the language of the witness. That is what required to

be complied under Section 277(a} of Cr.P.C. However~,.,_ to

understand and appreciate the evidence alreadyenlieecvord

the Court to which it is transferred, the said~revi:dience: has 'v

be in the language of the court.

already on record is in Tamil language',._af1d

may not be known to the and the
defence lawyer. But understand
and appreciate the same,V_1;he recalling of
the witnesses forlhjesh wrong in
the evidence' liiowever, in View of the
it isllreqluired to be translated. In
such case, the evidence is not the scope of

either Sectio'n..2'?7l oi: 278 of Cr.P.C. At the same time,

be mind that, the trial Judge for all

p1tacLiega1v.,15uIlfpose,will be relying on the translated evidence, it

is'in"these'eircumstances, the translation has to be correct

' V and accurate.

l he :,436l."Before the Apex Court, the State of Karnataka in its

counter affidavit had undertaken to get the documents and

d-ebositions of the witnesses, which are in Tamil language

translated into English language. The order sheet of trial
court dated 25.10.2004 shows that the State Government

(Karnataka) had deputed 20 Professors, who are in

translation of Tamil documents into English,

also shows that 10 Professors reported, it fu--r=the:r:~shovvsthat"»

the translation of the Tamil documents.,and:_depo.sition_ v.-*_as

completed and same is ﬁled before thetrial

on the parties on 28.3.2005.

37. However, _ application in
l.A.No.396 in Jt}l'1'E_. to scrap entire
English E-1n'd_:fo:I* translation, and
sought of the witnesses. It is
not in dispute work was completed in the

year 20OSi=tself, tollnearly 70,000 pages.

._':_4'}88,,_:.Chapter'Xxlii of the Code of Criminal Procedure

evitlence in enquiries and trials. The relevant

provisions' 'Sections 276, 277 and 278. As the trial in

ﬂpquestionlis hefore the learned Sessions Judge, the procedure of
ll..f'the'l1"ecording of evidence is prescribed under Section 277,

-- [?which reads as under:

.%avw'

____,_.»----p

,-.4

277. Language of record of evidence:- In every
case where evidence is taken down under section
275 or section 276 --

{d} U the witness gives evidence in the language
the Court, it shall be taken down in
language; ' '

(e) y' he gives evidence in any other _lang.uoge,..,it-A
may, if practicable, be taken. «down, in-jthatj;
language, and if it is not practica.isle.,,to do«.so,Fa
true translation of the evidence in the'-laj:guC.Ige_"'«.., V
of the Court shall _ be 'prepared the";
examination of the u;itr£€§s proceeds, 'stgne'd~b.y"
the Magistrate or presiding Judge, '*and shall

form part of the record,-_____

(f) where under ctause (Lb) evidence taken down
in a language other thelléingaage of the
Court, atrue translation thereof in the language
of the.-Court §shall_V'V,«be-.,gprepareit' as soon as
practicable,, signed by thel""'l\/Iagistrate or
prestdét1g"r-:)I;;dg.g3--..___ai~i.d shallfonn part of the
record} C' ' ._ ._

Provided,thati._,whe'n_gunder clause (19) evidence is
taken down in EnglisVh.-ai~1d a translation thereof in
the la.nguage'--of'the Court is not required by any of
the parties, , the 'Court may dispense with such

g translation... _

"«._o1_~,ilperus.ali ofiilsection 277, it is clear, if the Witness gives

evidence in language of the court, it shall be taken down in

[the said language. If the Witness gives evidence in any other
2..liangi1age,"which shall be recorded in the said language, if it is
practicable to do so, a true translation of the evidence in

" language of the court shall be recorded as the examination

of witnesses proceeds. This circumstance arises only if the
witness gives evidence in the language other than the court

language. Either it could be recorded in the same language or

if it is not practicabie, translation of the said

be recorded, as the examination of the witnessesﬂproceeds "En,

such event, the Presiding Officer or" the:AlViagf_stratej

to sign such evidence to make_it_ partef the record.' :'l~Ilowever.li'fg

the evidence is already taken the"languagev,:olther than
the language of the t,,iral;§si1gm{ fhéfeof in the
language of the court shalls__o_on as practicabie
and be signed. Officer to
make it asia " Three circumstances are
provided. that, Witness gives the
evidencein the there is no difficulty as

far as _recorC1in.g oft-he'~.evi'dence of such witness is concerned.

< ,r_:.ir(:u_mstalnce------7'--sthat, if the language of the witnesses is

tiiffe1*eniv..fro1n the court language, simultaneous translation of

the said eviiielrice in the language of the court. if practicable,

.which ..also requires a signing of the said evidence by the
it ll..:ijPrelsiding Officer or the Magistrate. The third circumstance is,
' vviiere the evidence is taken down in the language other than

u that of court under clause (b), then it has to be translated and

signed by the Presiding Officer or the Magistrate. This is not
the case where the trial court. which is now dealing with the
matter, is recording the evidence of the witnesses whose
translation is fiied. It is also not in dispute that. t.he eviidegnce of

these witnesses has been recorded in terms of SectionVV'2*'??.fa} of

Cr.P.C. As such. there is compiiance with

Section 277{a} of Cr.P.C. It is oriivtwhen,'evjidenceﬁisfibelizfigbf '

recorded in a ianguage other than the catirt "

cases. simuitaneous transiat-i,on._ or V. traixsiationd"after the

evidence is recorded requires to-'be.
39. Section 278 subssectivotnf {1.;:_idé;a1é 'with procedure in

regard to eviderncejwhien pp completion of the

evidence wot1}Vd;tb'e_poniy'-.aite_rthe evidence is read over to the
witness irithe presence pot: the accused, if in attendance. or if

his Qieader, if 'i1e_V_Vappears by pieader. This stage is also over in

gthi_s' case as 'recording of evidence was compieted, as it was

read .0vei'"in t/he*"'presence of the witrxesses and in the presence

of "the ..'_'a'L:éti'sed. Section 278 sub--section {2} aiso is not

. attracted. as no witness denies or objects the evidence recorded

it court. Section 278 sub--section {3} deais with recording

evidence in a ianguage different from that in which it has

been given and the witness does not understand that ianguage.

In such cases, the record shall be interpreted to him in the
language in which it is given and in the language in which he

understands. In this case, this stage also does not a_rise=a_s=.this

Court is not recording the evidence of those \xIit.n.esses;'g:'*whose-.

evidence is translated in English. Asmsuch, the v1'eliancev'plaeed"»

by the learned Counsel on the provisionezof S.ectio'nsl 'arid

278, in my opinion, are not-.___attrac.t_ed to :':t'h'ev_facts andii'

circumstances of this case.

40. There is no defect' evidence of the
witnesses in Tarn_il'lsang1.fiage lChennai nor any
fault could is. whether the
correct and been made or there are
any defects, Althe.'tra'I;slat.io11.?'Assuming that there are some
defects or doels"*not:l meaning of the evidence

recorded in Taxniiilanguiage, it is not disputed by the Public

y if there are any mistakes, errors, omissions or
in the translation and if they are pointed

l _ out,l it Wi'll' accepted by the prosecution. Thus, for the
' "'«__gp'u.Arpose. «ascertaining the accuracy of the translation, it may
beslnecessaiy to scrap the entire evidence or translation
re--do the same. If the evidence before the court available

his not in the language of the court, it is always open to the

court to get the said evidence translated in the language of the
court. When evidence has been recorded in the language of
the court at relevant point of time and no defect4..co:iLlde_ be
found as regard to recording of said evidence,
the transfer of said case to another court ..
of the court is different, such defect
getting the said deposition the vlannguage the
which the case is transferred,"""::iu't. neitherd_t'neV-I of
Section 277 or Sectioii~..2.78_."dof< or A 'Rulexv'8 of the
Karnataka Criminal Rulesdof on transfer
of the case fromfone the evidence
and do Once the evidence is
validly :recoVrd:ed.._vas anddevidence of the prosecution
and theVV'tran.slatiori.'VisVonly-to,facilitate the court, prosecution

and the defc.ncc.._'v--_Nonde*=of the provisions of the Code of

~'"~,_CriniinaL_g:PrQCedu;re----------require denovo recording of evidence

Section 277 or 278 of Cr.P.C. Section 277(c}

of 'Cr'.'i5.C. fisiviapfplicable where the court records the evidence in

[Va lanxguauge other than the language of the court in terms of

"..fSecti'o.n :27? clause {b}, such evidence is required to be

-- translated in the language of the court and it is required to be

" signed, but that is not a case here. % 5 4 ,

41. However. if the evidence already on record is in the
language other than the language of the court in Karnataka,
an accurate translation of the deposition and docurnen_t's_vis

necessary for free, fair and proper trial.

42. It is no doubt true that, iifuthe .cou1't.;isAlV'requi'red

rely on the translated evidence, it be ae.cur.ate

must give the same meaning as.__i'n._the oi'igii1-alforinrecordedll

by the court. To rernedyexsuchyisituation, it islaiways open to
the accused to point out' in the evidence
at appropriate Special Public
Prosecutor ~co:uldp belllrnade. If that is so,
the apprehension may not give the correct
meaning andAlitl"'V1s:'v-note'properly translated, does not merit.
When there is no reason to do

denotﬁd translation_land such exercise would result in delay in

in ' condluctiln trial.

'"43. Insiefar as recalling of 41 witnesses is concerned, in

Cview of submissions made by the Special Public

..:Proseeutor, I do not think there is any reason to issue

-.l.'.-direction to the Special Court, as both the parties agree that

procedure contemplated for recording of the evidence of

the witnesses, whose language is not the language of court,
would be followed i.e., in accordance with Sections 2?? and
278 of Cr.P.C. read with Rule 8 of the Ka1'nataka'vC:riniinal

Rules of Practice.

44. Free and fair trial is sine qua 'non&_ oi'

Constitution oi" India, it has been'cleaj»'.,pAby_

Court also. There is also noldojubt thatthe_ac_cuse<fl"should"'

get {air and proper opportunity 'lead Public
Prosecutor owes a duty only but also to the
court as well as tip)" the responsible Counsel to
plead for justice court with an
ultilnatev"objectfiofiiplacing before the court and in
this case, thc1_P1'o-secutor has accepted that he
owes a duty? but also to the accused for

free and fair ln iriew of the submission of the Special

Pislillfijgg-;6:v"()A1;li[0I' and the defect, if any, in the translation

I I find that the defect or correction, if any,

in the translation, should not come in the way of proceeding

' with :Such correction could be done at appropriate stage.

it In my opinion, there is no defect in the recording of

the evidence as it is done by the court of competent

jurisdiction in accordance with the provisions of Section 277
of Cr.P.C. The evidence already on record is in the language of
that court, now on transfer, there is a change in the language

and it requires a translation of the said evidence. .. an_d~.,the

translation has been done in the light of the undertaldrfigi _

by the State of Karnataka before the Apex Court is V.

no illegality or irregularity in filing of tiianslationzolf

deposition of the Witnesses and document', which are in 'l';'arnil._" ,

46. The Trial Court haxvriiigb found'"that there is no
reasonable ground to do.,_:c.'iVr:n0i'_iAo ~of,recording the evidence
of the witnesses nor tl_1ere._ to do denovo

translation, to "accused to rectify the

defects,;_if any,b5"'icalling_gtlie persons, who are not connected
to the said transla--tioh.A'\Arork, or to refer the same to some other

experjt,"who is Wel_ll¥\}ersved in both languages Tamil and English

'ardered for choosing the name of the expert by

fhpot-_h the accused prefers to get the help of the

expert to the alleged defects or the mistakes in the

Vl"Epnglish"m'ersion. The effect of this direction would result in
deiaynin conducting the trial. When there is already evidence
its original form, the defect in translation as observed

V' above, could be rectified as and when it is pointed out at

ORDER

Criminal Petition No.3766/2010 filed by the State is allowed. The direction issued for appointment of experts once again is hereby set aside. Criminal Petition No.3748/20V1Q f1led by the accused No.1 is dismissed.

However, liberty is reserved to the prose_clu_'ijon.A_l.:anid the l accused to point out the defects; mi_stai<es. Vomiissionslh or additions, etc., if any. to be Vmade in-the translation such mistakes are pointed out, trial court shall consider V the same and correct thie*~rtran_«sllatiAo*n. the deioosition of the witnesses and the docun17entslV;"ll\3}hi.c_}i1'*translated into English from fi'ain:il}'* l.j_triVaiLfsha1l go on till the recording of the 'stai;ernerit:o£the accused under Section 313 of Cr.P.C. Prosecution and theaccused may file necessary memo pointing out th"e..e_rrors and mistakes. if any, in the translation lwherevelr required, on or before the completion of the thlfe-evidence of 41 witnesses sought to be recalled. l ....i?.l\'iM/~ Sdf'"?

jiidge

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