Madras High Court
Chitra vs The Additional District ... on 8 May, 2019
Equivalent citations: AIRONLINE 2019 MAD 321, 2019 CRI LJ 3639
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.05.2019
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.6030 of 2019
and
Crl.M.P.No.3364 of 2019
Chitra ... Petitioner
Vs.
1.The Additional District Superintendent of Police,
CBCID, Namakkal District,
Namakkal
2.Yuvaraj
3.Arun
4.Kumar @ Sivakumar
5.Sankari
6.Arul Senthil
7.Selvakumar
8.Thangadurai
9.Sathish Kumar
10.Ragu @ Sridhar
11.Ranjith
12.Selvaraj
13.Chandrasekaran
14.Jothimani
15.Praba
16.Giridhar
17.Suresh
18.Amudharasu
19.B.Mohan ... Respondents
http://www.judis.nic.in
2
(R-19 impleaded as respondent as per order dated 08.05.2019 in
Crl.M.P.No.5897 of 2019 in Crl.O.P.No.6030 of 2019)
PRAYER: Criminal Original Petition filed under Section 407 Cr.P.C.
praying to transfer the case in S.C.No.78 of 2016 on the file of Special
Judge for SC & ST Prevention of Atrocities Act (Principal Sessions Judge),
Namakkal to Special Judge under SC & ST Prevention of Atrocities Act
1989, (Principal Sessions Judge) Salem or any other court to secure the
ends of justice.
For Petitioner : Mr.R.Shankarasubbu
For Respondents
For R1 : Mr.M.Mohamed Riyaz,
Additional Public Prosecutor
For R12 : Mr.P.Kumaresan,
for Mr.M.Guruprasad
For R2 to 11,
R13 to 18 : No Appearance
For R19 : Mr.P.Rathinam
ORDER
This petition has been filed to transfer the case in S.C.No.78 of 2016 on the file of the Special Judge for SC & ST Prevention of Atrocities Act (Principal Sessions Judge), Namakkal to the file of the Special Judge under SC ST (Prevention of Atrocities) Act 1989, Salem or any other court.
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2. The learned counsel for the petitioner submitted that the petitioner is the defacto complainant. He lodged a complaint and the same was registered in Crime No.289 of 2015. Thereafter, the same was transferred to the file of the District Superintendent of Police, CBCID, Namakkal and renumbered as Crime No.2 of 2015. The allegation in the complaint is that the son of the petitioner was murdered due to honour killing as the girl belongs to other community fell in love with the deceased son. Therefore all the accused persons murdered his son mercilessly. The respondent after completing investigation filed charge sheet and the same was taken cognizance in S.C.No.78 of 2016.
3. He further submitted that the District Collector, Namakkal District appointed one, Thiru.Karunanidhi as Special Public Prosecutor to conduct the trial. Unfortunately he could not withstand the scheme of accused party who are intimidating the witnesses and one after another due to the slackness of the prosecution. Therefore the witnesses were forced to turn hostile one after another. Material witnesses were also not able to be marked properly. As such the trial was not conducted in a fair manner and the Presiding Officer had also been a silent spectator to the incident happened inside the court campus. Therefore, the petitioner http://www.judis.nic.in 4 approached this Court for appointment of any other person as Special Public Prosecutor instead of Thiru.Karunanidhi. Thereafter Mr.B.Mohan was appointed as Special Public Prosecutor to conduct the trial. The Special Public Prosecutor filed a petition under Section 311 Cr.P.C. to recall the witnesses who turned hostile and the same was not considered by the trial court. The trial court had no regard for the order passed by the High Court and the fair trial atmosphere was vitiated and as such fair justice was denied to the victim. In this regard, newly appointed Special Public Prosecutor also submitted a detailed representation to the District Collector, Namakkal on 26.01.2019 but to no avail.
4. He further submitted that the deceased belonged to SC community and the girl belongs to Konguvellalar Gownder community and as such they have taken away the life of the deceased by the false prestige of dominated caste people. In fact the Assistant of the first accused, who is the leader of the Theeran Chinnamalai Gownder Peravai has taken away the life of the deceased. He further submitted that on the instigation of the petitioner, the first respondent approached the Hon'ble Supreme Court of India challenging the bail granted to the first accused in Crl.A.No.1757 of 2017 and the Hon'ble Supreme Court of India allowed the same and cancelled the bail granted to the first accused, and further http://www.judis.nic.in 5 ordered that the first accused shall remain in custody as a pre-trial prisoner till such time as he was released by order of a competent court. Further the Hon'ble Supreme Court of India also directed the trial court to complete the trial within a period of 18 months from the date of receipt of copy of the order. Further the time was also extended by four months by an order dated 12.04.2019.
5. He further submitted that in pursuant to the said order, bail granted to the other accused was also cancelled and now all are under the judicial custody. It shows the seriousness of the offences committed by the accused persons and also they threatened all the witnesses and as such if the trial is permitted to be proceeded further it would cause prejudice to the petitioner / defacto complainant and he would not get fair justice from the trial court, since the first accused is having influence with all the persons and he is a capable person to prevent all the witnesses from deposing before the trial court. He further submitted that in fact the main witnesses PW1 to PW5 turned hostile only because of the threatening of the first accused. In this regard, the learned counsel for the petitioner cited the following judgments:
(i) In the case of Zahira Habibulla H.Sheikh and Another Vs. http://www.judis.nic.in 6 State of Gujarat and others reported in (2004) 4 SCC 158.
(ii) Sarasamma Alias Saraswathiyamma Vs. State Rep. by Deputy Superintendent of Police and Others reported in (2018) 7 SCC 339
(iii) Dinubhai Boghabhai Solanki Vs. State of Gujarat and Others reported in (2018) 11 SCC 129, and
(iv) Lata Singh Vs. State of U.P. and Another reported in (2006) 5 SCC 475.
6. The Special Public Prosecutor, Mr.B.Mohan filed a petition to implead himself as party to the present proceedings and submitted that he was appointed as Special Public Prosecutor to conduct trial in S.C.No.78 of 2016 by the Government Order dated 18.07.2018 in G.O.Ms.No.827 of 2018 by the District Collector, Namakkal. Even before his appointment as Special Public Prosecutor in S.C.No.78 of 2016, the prosecution already examined 40 witnesses. He further submitted that on verifying the documents after consultation with the first respondent he came to understand that the prosecution witnesses did not depose properly and there is a glaring lapses on the part of the prosecution witness. Further PW1 Mrs.Chitra, who is the mother of the deceased and other witnesses PW2 to PW5 are key witnesses to the prosecution turned http://www.judis.nic.in 7 hostile and the crucial information relating to the judicial statements recorded under Section 164 Cr.P.C. had been not properly put to them after being declared hostile.
7. He further submitted that there was also CCTV footage recorded under Section 164 Cr.P.C. statement not cross examined by the prosecution. Therefore, he filed a petition under Section 311 Cr.P.C. to recall PW1, 4, 5, 23, 24 and 30 before the trial court. He further submitted that though he was appointed as Special Public Prosecutor, the trial court allowed the earlier Special Public Prosecutor namely Mr.Karunanidhi to proceed with the examination of further witnesses. In fact PW41, Village Administrative Officer was examined by him without marking the crucial evidences. In the meanwhile the trial court returned the application filed by him under Section 311 Cr.P.C. with the following endorsement which is extracted as follows:
“The Section 15 of SC/ST (POA) Act, 1989 states that the State Government has power to appoint the Special Public Prosecutor, whereas the Special Public Prosecutor has been appointed by District Collector, Namakkal as per Rule 4(5) of SC/ST (POA) Rules, 1995 which is not in consonance of the Section 15 of SC/ST(POA) Act, 1989, an appointment http://www.judis.nic.in 8 made by the State Government is to be considered as principal and any other persons appointed by the District Collector is inferior and is not inconsonance of the Section 15 of SC/ST(POA) Act, 1989”.
“ So the petition ought to have been filed by the Special Public Prosecutor appointed by the State Government alone having power to conduct leads the case. The Special Public Prosecutor who was appointed by the District Collector has to sail along with the Special Public Prosecutor appointed by the State Government”.
8. He further submitted that this Court appointed him as Special Public Prosecutor by replacing the earlier Special Public Prosecutor, Mr.Karunanidhi. Even then, the trial court did not permit him to conduct the case and he could play second fiddle to the earlier Special Public Prosecutor. Thereafter he also filed memo to the fact that he has been appointed as Special Public Prosecutor in the place of Mr.Karunanidhi. Even then, the trial court was not willing to recognise him as Special Public Prosecutor. He further submitted that it is seen from the orders passed by the trial court, he apprehends that the victim is deprived of the right to fair and effective trial and the trial court has misunderstood the entire object of SC/ST Act and proceeded with the trial adopting unfair approach on the petitions filed by him. Therefore, he expressed his http://www.judis.nic.in 9 inability to conduct prosecution in an effective manner before the trial court at Namakkal. He further submitted that Namakkal District is the native district of all the accused persons where the occurrence took place and they have significant influence in the village and as such the first respondent is also not cooperating in the trial proceedings. If trial is allowed to continue in the trial court at Namakkal, the victim will be deprived of fair and effective trial. Therefore he prayed to transfer the entire trial to a court in any other District.
9. Per contra, the learned Additional Public Prosecutor filed status report on behalf of the first respondent and submitted that the first respondent filed final report and the same has been taken cognizance for the offences under Sections 120(b), 364, 34 r/w 109 I.P.C., 384, 465, 468 I.P.C., 471 r/w 468 I.P.C., 302, 201, 212, 216 I.P.C. and 3(2)(v) of SC & ST (POA) Act, 1989 in SC.No.78 of 2016 by the trial court as against the accused persons. During the investigation in Crime No.289 of 2015, one, Selvi.R.Vishnupriya, the then Deputy Superintendent of Police was appointed as investigation officer and she committed suicide on 18.09.2015. Thereafter the entire investigation was done by the first respondent and completed the entire investigation by securing the accused persons. There are totally 17 accused and initially one, http://www.judis.nic.in 10 Mr.P.Karunanidhi was appointed as Special Public Prosecutor by the Government of Tamil Nadu. In addition to that the petitioner herein filed petition seeking permission to engage counsel on behalf of her. Accordingly, one, Mr.Narayanan, Advocate, Salem was permitted to assist the prosecution.
10. He further submitted that there are totally 116 witnesses in which so far the prosecution examined 72 witnesses in which 21 witnesses turned hostile. In fact, PW4, namely Selvi.P.Swathi, who is none other than the lover of the deceased, was examined and she deposed before the trial court contradicting her statement recorded under Section 161 Cr.P.C. and also statement recorded under Section 164 Cr.P.C. In fact, she identified during Test Identification Parade, Central Prison, Salem and rightly identified the accused persons. Unfortunately, during the course of evidence before the trial court she refused to identify the accused from CCTV footage taken from the occurrence place when the same was played during the trial. Therefore, the prosecution has taken steps to prosecute the hostile witnesses, namely PW4 for perjury and accordingly filed a petition before the trial court and it is pending before the learned Judicial Magistrate-I, Namakkal in C.C.No.71 of 2019.
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11. He further submitted that the other list of witnesses have identified the accused persons along with the deceased and PW4. While being so, the petitioner filed the petition before this Court to appoint one, Mr.B.Mohan, Special Public Prosecutor and it was allowed. Accordingly, Mr.B.Mohan was appointed as Special Public Prosecutor. Thereafter the trial is running smoothly and the first respondent is taking all steps with care and caution right from the beginning of the investigation till the trial and collected all the valuable evidences and produced before the trial court. Further he submitted that while cancelling the bail of the first accused, the Hon'ble Supreme Court of India directed the trial court to complete the trial within the period of 18 months and thereafter by an order dated 12.04.2019 it has been extended for further period of four months. At this stage, if the trial is transferred to any other court it is very difficult to proceed further by another court and it is not possible to complete the trial within a period fixed by the Hon'ble Supreme Court of India and prayed for dismissal of this petition.
12. Heard the learned counsel for the petitioner, the learned Additional Public Prosecutor appearing for the first respondent, the learned counsel for the respondents 2 to 18, and also the learned counsel http://www.judis.nic.in 12 for the impleaded respondent.
13. The petitioner is the complainant and deposed as PW1 in S.C.No.78 of 2016. She filed a petition before this Court in Crl.O.P.No.23412 of 2018 to appoint one, Mr.B.Mohan as Special Public Prosecutor to conduct the trial in S.C.No.78 of 2016. This Court by an order dated 12.11.2018 allowed the petition and appointed the said Mr.B.Mohan as Special Public Prosecutor to conduct the trial. So far, the prosecution examined 72 witnesses out of 116 witnesses in which 21 witnesses have turned hostile. All the accused persons are the residents of Namakkal District and they are very powerful persons. In fact, PW1 namely the petitioner herein turned hostile only on the threatening of the accused persons since the petitioner belongs to SC community.
14. Admittedly the accused persons especially the first accused is the leader of Theeran Chinnamalai Gownder Peravai. Further PW4 Selvi.P.Swathi, who is none other than the lover of the deceased also turned hostile and as such there is no chance for fair trial at Namakkal District. Further it is seen from the affidavit filed by the newly appointed Special Public Prosecutor Mr.B.Mohan that after his appointment he filed a petition under Section 311 Cr.P.C. to recall PW1 to PW5, but the trial court returned the petition stating reasons, which read as follows:
http://www.judis.nic.in 13 “The Section 15 of SC/ST (POA) Act, 1989 states that the State Government has power to appoint the Special Public Prosecutor, whereas the Special Public Prosecutor has been appointed by District Collector, Namakkal as per Rule 4(5) of SC/ST (POA) Rules, 1995 which is not in consonance of the Section 15 of SC/ST(POA) Act, 1989, an appointment made by the State Government is to be considered as principal and any other persons appointed by the District Collector is inferior and is not inconsonance of the Section 15 of SC/ST(POA) Act, 1989”.
“ So the petition ought to have been filed by the Special Public Prosecutor appointed by the State Government alone having power to conduct leads the case. The Special Public Prosecutor who was appointed by the District Collector has to sail along with the Special Public Prosecutor appointed by the State Government”.
15. Only on the direction issued by this Court in Crl.O.P.No.23412 of 2018 by an order dated 18.12.2018, the District Collector, Namakkal appointed the said Mr.B.Mohan as Special Public Prosecutor as per G.O.No.827 of 2018. Therefore, it is clear that he has been appointed in the place of earlier Special Public Prosecutor, namely Mr.Karunanidhi and he is the only person to be acted as Special Public Prosecutor to conduct trial in S.C.No.78 of 2016. There cannot be two http://www.judis.nic.in 14 Public Prosecutors to conduct trial as observed by the trial court. However, subsequently newly appointed Special Public Prosecutor has been recognised. It is also seen from the report submitted by the trial court, when the case was adjourned for framing of charges, the first accused threatened the Presiding Officer in the open court and the first accused along with the other accused persons refused to leave the accused box from the court premises.
16. In this regard, the trial court also have lodged complaint under Section 340 Cr.P.C. and it is pending. Thereafter the first respondent filed a petition to cancel bail, which was allowed, and the accused persons were remanded to judicial custody. Insofar as the 17 th accused is concerned, the case has been split up and assigned new number as S.C.No.140 of 2018. It shows that the attitude of the accused persons are very bad and though the trial court have taken so many actions against them, but to no avail. Further it shows that the influence of the accused persons is the reason for their arrogance before the trial court since all of them are originated from Namakkal District. In fact, the first accused is the leader of Theeran Chinnamalai Gownder Peravai and he has full influence with all the persons and he is capable to threaten the witnesses including the Presiding Officer of the trial court. It is also evident that the investigation was initially handed over to one, http://www.judis.nic.in 15 Selvi.R.Vishnu Priya, Deputy Superintendent of Police. While investigation was under progress, she committed suicide on mysterious circumstances. It shows the interference of the accused in the investigation and their powerful influence since she also belonged to scheduled caste community. Therefore if the trial is permitted to be proceeded in the same district, the victim would not get fair trial and justice.
17. The learned counsel for the petitioner cited the judgment of the Hon'ble Supreme Court of India in the case of Zahira Habibulla H.Sheikh and Another Vs. State of Gujarat and others reported in (2004) 4 SCC 158, wherein it is held as follows:
33.The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation - peculiar at times and related to the nature of crime, persons involved -
directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.
34.As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the laws of evidence. There is, however, an overriding and, perhaps, unifying principle. As http://www.judis.nic.in 16 Deane J put it:
"It is desirable that the requirement of fairness be separately identified since it transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law".
36.The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial http://www.judis.nic.in 17 calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
37.While dealing with the claims for the transfer of a case under Section 406 of the Code from one State to another this Court in Mrs. Maneka Sanjay Gandhi and Anr. v. Ms. Rani Jethmalani (1979 (4) SCC 167), emphasised the necessity to ensure fair trial, observing as hereunder:
"Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court http://www.judis.nic.in 18 may weigh the circumstances.
5.A more serious ground which disturbs us in more ways than one is the alleged absence of congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of toughs and street roughs to violate the serenity of court is obstructive of the course of justice and must surely be stamped out. Likewise, the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily. It causes disquiet and concern to a court of justice if a person seeking justice is unable to appear, present one's case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the court to assure propitious conditions which conduce to comparative tranquility at the trial. Turbulent conditions putting the accused's life in danger or creating chaos inside the court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary. Likewise, if there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and http://www.judis.nic.in 19 polluting the climate, vitiating the necessary neutrality to hold detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer. In a decision cited by the counsel for the petitioner, Bose, J., observed :
.... But we do feel that good grounds for transfer from Jashpurnagar are made out because of the bitterness of local communal feeling and the tenseness of the atmosphere there. Public confidence in the fairness of a trial held in such an atmosphere would be seriously undermined, particularly among reasonable Christians all over India not because the Judge was unfair or biased but because the machinery of justice is not geared to work in the midst of such conditions. The calm detached atmosphere of a fair and impartial judicial trial would be wanting, and even if justice were done it would not be "seen to be done". (G. X. Francis v. Banke Behari Singh, AIR 1958 SC 309)
6.Accepting this perspective we must approach the facts of the present case without excitement, exaggeration or eclipse of a sense of proportion. It may be true that the petitioner attracts a crowd in Bombay. Indeed, it is true of many controversial figures in public life that their presence in a public place gathers partisans for and against, leading to cries and catcalls or 'jais' or 'zindabads'. Nor is it unnatural that some persons may have acquired, for a time a certain quality of reputation, sometimes notoriety, sometimes glory, which may make them the cynosure of popular attention http://www.judis.nic.in 20 when they appear in cities even in a court. And when unkempt crowds press into a court hall it is possible that some pushing, some nudging, some brash ogling or angry staring may occur in the rough and tumble resulting in ruffled feelings for the victim. This is a far cry from saying that the peace inside the court has broken down, that calm inside the court is beyond restoration, that a tranquil atmosphere for holding the trial is beyond accomplishment or that operational freedom for judge, parties, advocates and witnesses has creased to exist. None of the allegations made by the petitioner, read in the pragmatic light of the counter-
averments of the respondent and understood realistically, makes the contention of the counsel credible that a fair trial is impossible. Perhaps, there was some rough weather but it subsided, and it was a storm in the tea cup or transient tension to exaggerate which is unwarranted. The petitioner's case of great insecurity or molestation to the point of threat to life is, so far as the record bears out, difficult to accept. The mere word of an interested party is insufficient to convince us that she is in jeopardy or the court may not be able to conduct the case under conditions of detachment, neutrality or uninterrupted progress. We are disinclined to stampede ourselves into conceding a transfer of the case on this score, as things stand now.
7.Nevertheless, we cannot view with unconcern the potentiality of a flare up and the challenge to a fair trial, in the sense of a satisfactory participation by the accused in the http://www.judis.nic.in 21 proceedings against her. Mob action may throw out of gear the wheels of the judicial process. Engineered fury may paralyse a party's ability to present his case or participate in the trial. If the justice system grinds to a halt through physical manoeuvres or sound and fury of the senseless populace the rule of law runs aground. Even the most hated human anathema has a right to be heard without the rage of ruffians or huff of toughs being turned against him to unnerve him as party or witness or advocate. Physical violence to a party, actual or imminent, is reprehensible when he seeks justice before a tribunal. Manageable solutions must not sweep this Court off its feet into granting an easy transfer but uncontrollable or perilous deterioration will surely persuade us to shift the venue. It depends. The frequency of mobbing manoeuvres in court precincts is a bad omen for social justice in its wider connotation. We, therefore, think it necessary to make a few cautionary observations which will be sufficient, as we see at present, to protect the petitioner and ensure for her a fair trial.
40.The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.
41."Witnesses" as Benthem said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated http://www.judis.nic.in 22 from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and http://www.judis.nic.in 23 that the trial is not reduced to mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the 'TADA Act') have taken note of the reluctance shown by witnesses to depose against dangerous criminals- terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies.”
18. He also relied upon the judgment in the case of Sarasamma Alias Saraswathiyamma Vs. State Rep. by Deputy Superintendent of Police and Others reported in (2018) 7 SCC 339, wherein it is held as follows:
“16. Taking into consideration the aforesaid
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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. 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 http://www.judis.nic.in 25 merits of the case and trial court is directed to independently consider the case uninfluenced by any observations passed herein.”
19. He also relied upon the judgment in the case of Lata Singh Vs. State of U.P. and Another reported in (2006) 5 SCC 475, wherein it is held as follows:
“16.Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.
17.The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and http://www.judis.nic.in 26 democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-
religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter- caste or inter- religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.
18.We sometimes hear of `honour' killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.
19. In the circumstances, the writ petition is allowed. The proceedings in Sessions Trial No. 1201/2001 http://www.judis.nic.in 27 titled State of U.P. vs. Sangita Gupta & Ors. arising out of FIR No. 336/2000 registered at Police Station Sarojini Nagar, Lucknow and pending in the Fast Track Court V, Lucknow are quashed. The warrants against the accused are also quashed. The police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner's husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned.”
20. In the above judgments, the Hon'ble Supreme Court of India has held that the fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. Further held that the witnesses are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process, if the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. In the case on hand, the prosecution examined 72 witnesses in which 21 witnesses turned hostile.
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21. In fact, PW1, who is none other than the petitioner herein / mother of the deceased also turned hostile. Further, PW4, who is none other than the lover of the deceased also turned hostile and as such the trial court also have taken action of perjury and it is pending in C.C.No.71 of 2019 on the file of the learned Judicial Magistrate-I, Namakkal. Therefore, the above judgments cited by the learned counsel for the petitioner are squarely applicable to the present case on hand.
22. Nowadays, there are several instances that harassment, threat and violence against young couple who marry outside their caste. It is very painful to note that our country is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern such as the present one. As held by the Hon'ble Supreme Court of India, the honour killing of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal- minded persons who deserve harsh punishment.
23. In fact in the case on hand, the deceased was abducted by the first accused and others and was taken to Orukkamalai. They have http://www.judis.nic.in 29 beaten him and abused him in filthy languages and threatened him to speak as if he would commit suicide due to love failure under threat of life. As directed by the first accused the deceased had spoken and the same was vediographed by the first accused by using the mobile belongs to the second accused. Thereafter the first accused also threatened the deceased to write a suicide note as dictated by him. Thereafter he had been taken to railway track and murdered him brutally and also severed his head. In order to escape from the charge of murder, they created a scene as if the deceased committed suicide and damaged his head portion and kept the head portion outside the track.
24. It is very unfortunate to state that the caste system of our country is destroying the entire nation and it is dividing the nation. In the case on hand, the deceased belongs to SC community and the girl namely PW4 belongs to other community. When they fell in love, the unfortunate occurrence took place only for the reason that both belong to different community. As discussed above, the accused persons are very influential persons and all are natives of Namakkal district. If the trial is permitted to be proceeded further in Namakkal District, the victim would not get fair justice.
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25. Under these circumstances, this Court is satisfied with the reason stated by the petitioner as well as the submissions of the Special Public Prosecutor and also the report received from the trial court. This Court finds there is a valid reason for transferring the trial from the file of the present court to some other court. Accordingly, this criminal original petition is allowed and the proceedings in SC.No.78 of 2016 is hereby withdrawn from the file of the learned Special Judge for SC & ST Prevention of Atrocities Act (Principal Sessions Judge), Namakkal and the same is transferred to the file of the learned Special Judge for SC & ST Prevention of Atrocities Act, Madurai. The learned Special Judge for SC & ST Prevention of Atrocities Act (Principal Sessions Judge), Namakkal is directed to transfer the entire bundle in S.C.No.78 of 2016 to the file of the learned Special Judge for SC & ST (Prevention of Atrocities) Act, Madurai forthwith.
26. As directed by the Hon'ble Supreme Court of India in Crl.A.No.1757 of 2017, arising out of S.L.P.(Crl.)No.5998 of 2016 dated 10.10.2017, the trial court is directed to conduct trial in day to day basis and comply the order passed by the Hon'ble Supreme Court of India. It is also seen that the petition filed under Section 311 Cr.P.C. by the Special Public Prosecutor is pending. The trial court is directed to consider and http://www.judis.nic.in 31 pass orders to recall the witnesses as prayed by the Special Public Prosecutor and proceed with trial. The accused persons and the prosecution are directed to cooperate for fair trial. If the accused persons are not cooperating for trial and if they indulge in any kind of illegal activity, it is open to the trial court to take stringent action against the accused persons as contemplated under the provisions of law. Consequently, connected miscellaneous petition is closed.
08.05.2019 (2/2) lok Index:Yes/No Internet:Yes/No Speaking/Non-speaking order http://www.judis.nic.in 32 G.K.ILANTHIRAIYAN, J.
lok To
1.The Additional District Superintendent of Police, CBCID, Namakkal District, Namakkal
2. The Special Judge for SC & ST Prevention of Atrocities Act (Principal Sessions Judge), Namakkal
3.The Principal District and Sessions Judge, Madurai
4.The Additional Public Prosecutor, High Court of Madras Crl.O.P.No.6030 of 2019 08.05.2019 http://www.judis.nic.in