IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

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

SARASAMMA @ SARASWATHIYAMMA                        Appellant(s)

VERSUS

THE STATE REP. BY DEPUTY  SUPERINTENDENT OF POLICE AND OTHERS

Respondent(s)

With

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

J U D G M E N T

N. V. RAMANA, J.   

1. Leave granted.

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

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

filed, being aggrieved by the impugned order passed by the

High  Court,  wherein  it  has  rejected  the  prayer  seeking

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

Salem in Tamil Nadu. 3. The brief facts of the case, including its genesis, which are

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Non-Reportable

necessary for the purpose of disposal of the case are that in

the year 1992, one N. C. Raman, who was alleged to be the

head  man  of  Nagamangalam  village,  was  murdered  by

certain persons. The aforesaid case was registered, as Crime

No. 302 of 1992, before the jurisdictional police station. In

the  context  of  the  aforesaid  case  N.C.Chandrashekran,

husband of the appellant herein, was alleged to have been

murdered  at  Hosur  Bus  Stand  (Tamil  Nadu),  as

N.C.Chandrashekran  was  an  eye  witness  to  the  earlier

murder of his deceased brother (N. C. Raman).  

4. Accordingly, a First Information Report, being FIR No.614 of

1995,  dated  15-8-1995,  was  initially  registered  under

Section 307 of the Indian Penal Code [IPC] at Hosur Police

Station  but  after  the  death  of  deceased

(N.C.Chandrashekran), Section 307 was altered into Section

302  IPC.  In  the  year  1997,  one  Ramachandran,  son  of

Marappa,  a  different  person  than  respondent  no.  3

(Ramachandran  son  of  Thimmaiya),  along  with  another

accused surrendered before the Magistrate with reference to

FIR No.614 of 1995. Thereafter, first Charge-sheet was filed

against the said Ramachandran son of Marappa and in the

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year  2012,  the  complainant  who is  the  present  appellant

herein, gave a representation to the concerned Police Station

indicating that the original accused viz. Ramachandran son

of  Thimmaiya (respondent  no.  3  herein)  was not  arrested

and in his place, Ramachandran son of Marappa (an alleged

imposter)  was  shown  as  an  accused.  Therefore,  she

requested that the original accused Ramachandran son of

Thimmaiya (respondent no. 3) be arrested and tried.

5. In the context of the representation, the police investigated

into  the  matter  and  found  that  certain  police  men  were

involved  in  the  active  concealment  of  the  real  accused.

Thereafter,  on  30-4-2015,  a  supplementary  charge-sheet

was  filed,  against  the  present  Respondent  No.2,

Ramachandran son of  Thimmaiya (respondent no.3)  along

with two accused Police officials who were alleged to have

actively  connived  in  suppressing  the  identity  of  the  true

accused.  It  was  brought  to  our  notice  that  further

investigation  was  carried  out  and  proceedings  before  the

Sessions Court have been inordinately delayed. After filing

the supplementary Charge-sheet, the Court took cognizance

and committed the case to the Sessions Court at Hosur in

Sessions Case No.81 of 2016.  

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6. Learned senior counsel,  Mrs. Indira Jaising, appearing on

behalf of the Appellant has vehemently contended that said

accused Ramachandran son of Thimmaiya (respondent no. 3

herein) was earlier an M.L.A. from the Thalli Constituency

and there are about 14 criminal cases pending against him.

He  is  alleged  to  be  a  very  influential  and  was  being  an

impediment for the witnesses to depose freely.  

7. Learned  Senior  counsel  appearing  for  the  Appellant  drew

our attention to the fact that one of  the witnesses filed a

Criminal  Original  Petition  No.8000  of  2017  before  the

Madras  High  Court  under  Section  482  of  the  Code  of

Criminal Procedure, 1973 seeking expeditious completion of

the  trial,  accordingly,  on  14-6-2017,  the  High  Court  has

directed the trial court to complete the trial within a period

of six months. In this context she argues that, even though

such directions were passed by the High Court,  the Trial

Court  has  not  yet  completed  the  trial.   Thereafter,  the

Appellant apprehended threat to her life and sought transfer

of  Sessions Case No.81 of  2016 from Additional  Sessions

Court,  Hosur to Principal  Sessions Court at  Salem, Tamil

Nadu.  

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8. The High Court by the impugned order while rejecting such

a request  on the  ground that  the  transfer  may  not  be  a

solution for ameliorating the apprehensions of the Appellant,

as such apprehension may continue even after a transfer,

but  granted  liberty  to  the  appellant  to  approach  the

concerned jurisdictional police seeking necessary protection

for the purpose of deposing evidence.  

9. Learned  Senior  counsel  appearing  for  the  Appellant

submitted  that  the  transfer,  which  they  are  seeking,  is

essentially on the ground that the manner in which three

murders have taken place and the adverse circumstances

under which the trial is being conducted. According to the

Appellant, the genesis of this criminal case concerning death

of a witness (N. C. Chandrashekaran) for the earlier criminal

case  is  indicative  of  the  nature  of  apprehension  the

Appellants are reeling under.  

10. It  is  stated by the appellant that the accused had earlier

threatened the deceased, husband of the complainant, not

to  give  evidence  and  if  he  gives  evidence  against  the

accused, he will meet the same fate. As the deceased did not

oblige the accused, the deceased (N. C. Chandrashekaran),

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who is the husband of the Appellant herein,  was done to

death.  It  was  also  submitted  that  the  same  accused  has

murdered another person i.e., the husband of the Appellant

in the other Special Leave Petition (Crl.)  No.1896 of 2018

and in addition to this, learned senior counsel appearing for

the Appellant submitted that the accused – respondents are

very  influential  in  the  locality  and  according  to  her,  the

allegations which are substantiated are supported from the

counter affidavit filed by the State of Tamil Nadu. She has

relied on the principles enunciated in Abdul Nazar Madani

v. State of Tamil Nadu and Anr., (2000) 6 SCC 204, and

submitted  that  there  is  a  reasonable  apprehension  that

there cannot be a fair trial, more so when the witnesses are

not coming forward to depose and are turning hostile due to

the pressure tactics of the accused. According to her, there

are  24  witnesses  still  to  be  examined  and  so  far  20

witnesses are examined out of  them 16 witnesses already

turned hostile. It is further submitted that most of official

witnesses turned hostile. In the circumstances, she submits

that there is no way that proper and fair trial can be held

and justice will be done to the Appellant. Therefore, it is a fit

case to transfer under Section 407 of the Code of Criminal

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Procedure, 1973. 11. On the other hand, Mr. Kapil Sibal and Mr. Sanjay R. Hegde,

learned  senior  counsels  appearing  for  the  respondents

submitted that there is no reason for transferring the case.

They further submitted that the appellant has expressed her

apprehension for her life and security, which was properly

considered  by  the  High  Court  and  taken  care  of.  They

further contended that the respondent no. 3 is no more an

M.L.A. and there is no evidence on record concerning the

pressure exerted on any of the witnesses. On the aspect of

delay, they contend that the trial is being delayed due to the

fact that the appellants herein herself is not deposing. So far

as the hostile witnesses are concerned, they submit that it is

a matter which the Court will examine and even though the

witnesses have turned hostile, they can be cross-examined.

They further submitted that the statements which sought to

be relied upon by the appellants, are filed before this Court

for  the  first  time  and  the  same  cannot  be  taken  into

consideration  as  they  are  of  questionable  veracity.  They

suggested that respondents can be directed to stay out of

the District till the trial is concluded and there is no ground

made out for transfer.

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12. Heard the learned counsels appearing for  the parties and

perused the material available on record.  

13. In this case at hand, there is no dispute that the F.I.R. was

registered way back in the year 1995 and initially the first

charge-sheet  was  filed  against  Ramachandran  son  of

Marappa. Subsequently, in 2012, the appellant herein had

submitted  a  representation,  which  ultimately  led  to  the

further  investigation  and  filing  of  the  supplementary

charge-sheet against the present respondents. A perusal of

the  affidavit  filed  by  State  make  it  apparent  that  certain

Police officials,  who are now arraigned as accused nos.  8

and  9,  in  collusion  with  respondent  no.3  had  wrongly

portrayed the other  Ramachandran as accused instead of

the present respondent no.3.  

14. Coming to  the manner of  conduction of  trial,  it  is  not  in

dispute  that  as  per  the  information  provided  before  this

Court, almost 21 witnesses so far have been examined and

out  of  which  16  witnesses  have  turned  hostile.  It  is

surprising to note that some of the official witnesses have

also turned hostile being P.W. 9, 10 and 11. Still, there are

24 witnesses who are yet to be examined. We cannot ignore

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that  several  criminal  cases,  where  the  accused  –

respondents  are  involved,  are  pending  before  the  Court.

Apart from that, in the affidavit filed on behalf of the State

by  Respondent  No.1,  it  is  admitted  that  the  Village

Administrative  Officer  and  the  Village  Assistant  who  are

punch witnesses have turned hostile.  

15. It is also stated in the affidavit by the State that the accused

Ramachandran son of Marappa who surrendered before the

concerned Court was not the real accused and basing on

that,  District  Judge  directed  the  respondents  to  conduct

further investigation, accordingly, the case was transferred

to  District  Crime  Branch.  After  the  investigation,  it  was

found that the real accused i.e., Accused Nos. 1 and 2 in

this  case  are  alleged  of  colluding  with  the  investigating

officer and swapping the real accused for an imposter. It is

in this context that the police officials have also been added

as accused in the supplementary charge-sheet.

16. Taking  into  consideration  the  aforesaid  allegation  which

prima facie indicates  that  the  investigation officer  at  that

point of time has not properly conducted the investigation.

At this juncture it  may be relevant to extract the counter

affidavit filed by the State concerning the influence of the

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respondent no. 3-

MLA Tr. Ramachandran and his associates who had maintained an iron grip over 15 villages and had not allowed any political rivals to set up a base were infuriated by the challenge posed by the  PDK  Party  of  which  the  deceased  was  a prominent local leader.

It  is  apparent  from the  affidavit  filed  by  the  State  that  the

members  of  the  respondents  –  accused  group  being  public

representatives have significant  influence in these villages so

the  apprehension  expressed  by  the  appellant  cannot  be

brushed  aside.  Taking  into  consideration  of  the  facts  and

circumstances of this case, we conclude that the apprehension

of the complainant – appellant that there is no possibility for

conduction of fair and impartial trial at Hosur is reasonable.

Further,  by transferring the case, the respondents – accused

are  not  prejudiced  in  any  manner.  Accordingly,  the  case

(Sessions Case No.81 of  2016) is  transferred from Additional

Sessions Court,  Hosur to Principal  Sessions Court  at  Salem,

Tamil Nadu.  

17. Taking into consideration the long pendency of the case, we

direct the Principal Sessions Judge, Salem, Tamil Nadu to

conduct  and  conclude  the  trial  expeditiously.  It  may  be

noted that we have not expressed anything on the merits of

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the case and trial court is directed to independently consider

the case uninfluenced by any observations passed herein.

Criminal Appeal No. 714 of 2018  (arising out of    SPECIAL LEAVE PETITION (CRIMINAL) NO.1896  OF   2018)   

18. This case is filed seeking transfer of the criminal case being

SC  NO.  1/2013,  pending  before  the  Additional  Sessions

Court, Hosur to anyplace outside Hosur.

19. A brief factual matrix is that the husband of the appellant

herein was murdered on 05.07.2012 by respondent no. 2 to

26  herein.  It  may  not  be  out  of  context  to  note  that

respondent  no.  2  and  respondent  no.  3  (ex-MLA)  are

common accused in both the petitions. A FIR, being Crime

No. 143 of 2012, was registered under Sections 147, 148,

341, 120 (B), 307, 302 of IPC, Section 25(1)(B) of Arms Act

and  Section  5  of  Explosives  Act,  by  the  Appellant’s  son.

Thereafter,  a  charge-sheet  was  filed  before  the  Additional

District Court, Hosur in SC No. 1 of 2013 on 03.10.2012. 20. It is brought to our notice that on the earlier occasions the

Appellant’s  son  had  approached  the  High  Court  seeking

transfer of the case which was dismissed. As the trial was

being  stalled,  the  Appellant  filed  Crl.  O.P.  No.  28217  of

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2017, before the High Court on 20.12.2017. It is apparent

from the record in the present case 19 witnesses have been

examined since the filing of the transfer petition before the

High Court.

21. By the impugned order dated 23.01.2018, the High Court

dismissed the transfer petition on the ground that transfer

of  the  case  at  the  belated  stage  of  the  trial  would  be

prejudicial instead directed the trial court to dispose of the

case expeditiously. Aggrieved by the same the Appellant is in

appeal before this Court.

22. Mr.  Gopal  Shankar  Narayan,  learned  counsel  for  the

Appellant,  has  contended  that  the  Appellant  apprehends

that  there may not  be possibility  of  fair  trial  as apparent

from the facts of the other case, wherein the witnesses are

being pressurized. He adopts the arguments of the learned

Senior counsel appearing on behalf of the Appellant in the

other case, to contend that the apprehension in the present

case are reasonable as apparent from the affidavit filed by

the State.

23. Having heard learned counsel appearing on behalf of both

parties and perusing the documents available on record, we

may note that from the day when the transfer petition has

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been filed, about 19 witnesses have been examined and 13

among them have turned hostile. Interestingly, nine official

witnesses have turned hostile in this case. We are further

apprised of the fact that Witness No. 36 to 124 are still to

depose. Moreover, it is apparent from the affidavit filed by

the State that the accused (respondent no. 3) is supposed to

have an iron grip over 15 villages around the area which is

indicative of possible influence over the men and machinery

in the area.  

24. As justice should not only be done, but also seem to have

been done, it would be necessary that the trial should take

place  in  a  fair  and  transparent  manner,  wherein  there

should be no element of bias or witness tampering. As the

appellant has clearly made out a case for transfer, we are

inclined to accept the prayer sought by the Appellant in this

case. Accordingly, the case being SC No. 1 of 2013 pending

before the Additional Sessions Court, Hosur is directed to be

transferred  to  Principal  Sessions  Court  at  Salem,  Tamil

Nadu. Further the trial court is directed to conduct the trial

in  an  expeditious  manner  and  uninfluenced  by  any

observations made herein.

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

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and pending applications, if any, shall also stand disposed

of.

…………………………….J.                                                                       (N. V. Ramana)

……………………………..J.                                                                             (S. Abdul Nazeer)

NEW DELHI MAY 09, 2018

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