K. ANBAZHAGANversusTHE SUPERINTENDENT OF POLICE AND ORS. ETC.

                                                                                       I


A                           K. ANBAZHAGAN
                                   v.
               THE SUPERINTENDENT OF POLICE AND ORS. ETC.

                                NOVEMBER 18, 2003

B                       [S.N. VA~VA AND H.K. SEMA, Jl]


          Penal Code, 1860; Section 1208/Prevention of Corruption Act, 1988;
    Section I 3(2) rlw Section 13(1) (e):

C          Trial of cases of corruption/conspiracy by Special Court-Trial Court
    dispensed with personal appearance of accused on personal hardship-
    Petition for transfer of cases to another State on ground. that course ofjustice
    being subverted-Another petition allegedly on same issue pending before
    the High Court-Jurisdiction of Supreme Court-Held: Petitions filed before
D   the High Court and Supreme Court under different provisions of /aw-
    Jurisdiction of Supreme Court and High Courts under the provisions are
    distinct and different-Proceedings in transfer petitions cannot be construed
    as parallel proceedings-In the facts and circumstances of the case, prejudice
    having been caused to the prosecution, reasonable apprehension of failure
    ofjustice exist-Hence, Transfer Petitions allowed and cases transferred for
E   trial in the State of Karnataka-State to constitute Special Court, to provide
    security/requisite facilities to witnesses-Directions issued-Constitution of
    India, 1950-Article 2 I-Code of Criminal Procedure, 1973-Sections 313
    and 406.

         Non-disclosure of facts as to pendency of similar matters before the
F   High Court-Effect of-Held: non-disclosure ofsuch fact for justified reasons
    would not non-suit accused-petitioner to approach Supreme Court.

          'Party to the proceedings' vis-a-vis 'Party interested'-Meaning of in
    the context of Code of Criminal Procedure, 1973.
G        Evidence Act, I 872; Section I 54: Recalling of witnesses after their
    examination/cross-examination-Necessity of-Held: Recalling of witnesses
    cannot be allowed on ground of non-availability of the counsel due to his
    preoccupation.

H                                        610


                                                                                       •
                   K. ANBAZHAGAN v. SUPDT. OF POLICE                          611

      Words and Phrases:                                                             A
      'party interested'-Meaning of in the context of criminal jurisprudence.
      Two petitions have been filed under Section 406 Cr.P.C. for transfer of
certain cases from Special Court, Chennai to a Court of equal and competent
jurisdiction in any other State, on the alleged ground that the course of justice    B
is being subverted. In these cases, respondents were charge-sheeted for
offences under Sections 1208 IPC, 13(2) r/w Section 13(1)(e) of the
Prevention of Corruption Act.

      It was contended for the petitioners that a number of witnesses have
bee!I recalled for cross-examination on the ground of non-availability of the        C
counsel as he was busy in other cases; that personal appearance of respondent
No.2 for examination was dispensed with by the Trial Court on ground of
physical hardship; and that the public prosecutor did not oppose the application.

       On behalf of the respondents, it was contended that petitioners did not
have locus standi to file transfer petitions; that since petitioners did not         D
di~close the fact regarding pendency of writ petitions befor~ the High Court
on identical issues, petitions are liable to be dismissed; that petitions had been
filed on ground of political vendetta against respondent No.2; and that merely
by declaring the prosecution witnesses hostile, no prejudice had been caused
to the case of prosecution; and that since transfer petitions have been filed
belatedly, the same are liable to be dismissed for !aches/negligence on the          E
part of petitioners.

      Allowing the transfer petitions with certain directions, the Court

       HELD: 1.1. Non-disclosure of the fact about pendency of proceedings
before the High Court would not non-suit the petitioner to approach the              F
Supreme Court with an application under Section 406 Cr.P.C. This Court
might have viewed seriously the conduct of the petitioners in not disclosing
about the proceedings pending in the High Court. However, it appears that
justice is not being done. The course of justice cannot be allowed to be
subverted. Further, even though some statements of facts made before the High
Court, are in parimateria with the facts stated before this Court, these             G
petitions cannot be held as parallel proceedings. The petitions pending before
the High Court are under Article 226 of the Constitution and the Transfer
Petitions have been filed under Section 406 of the Code of Criminal Procedure.
The jurisdiction of the High Court under Article 226 of the Con~titution and
the jurisdiction of this Court under Section 406 Cr.P.C. are quite distinct          H
    612                     SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A and different. This Court had already granted permission to the petitioner to
    file petition and no application has been filed thereafter to revoke the
    permission so granted. The locus standi of the petitioner cannot be challenged
    on this count. [618-8-C-D; 619-G-H]

          1.2. It cannot be said that the petitioner not being a party to the
B   proceeding is not a "party interested", and has no locus standi to file the
    present petition. The "party interested" has not been defined under Cr.P.C.
    The word "party interested" is of a wide import and, therefore, it has to be
    given a wider meaning. If it was the intendment of the legislature to give
    restricted meaning then they would have used words to the effect, "party to
C   the proceedings". When the legislature intended a "party to the proceedings"
    to have a right of appeal it specifically so stated. The legislature, therefore,
    keeping in view the larger public interest involved in a criminal justice system,
    purposely used words of wider import in Section 406. Also it is well-settled
    principle of law that statutes must be interpreted to advance the cause of statute
    and not to defeat it. The petitioner being a political opponent, is vitally
D   interested in the administration of justice in the State and is a "party
    interested" within the meaning of sub-section (2) of Section 406 Cr.P.C.
                                                                    ['620-C-D-E-F-GJ

           1.3. In a democracy, the political opponents play an important role both
    inside and outside the House. They are the watchdogs of the Government in
E   power. In that view of the matter, being a political opponent, the petitioner is
    a vitally interested !larty in the run of the Government or in the administration
    of criminal justice in the State. The petition lodged by such persons cannot
    be brushed aside on the allegation of a political vendetta, if otherwise, it is
    genuine and raises a reasonable apprehension of likelihood of bias in the
F   dispensation of criminal justice system. [620-H; 621-A-B)

         Sheonandan Paswan v. State of Bihar, [1987) I SCC 288; State of
    Haryana and Ors., v. Bhajan Lal and Ors., [1992) Suppl. 1 SCC 335;
    Gurcharan Das Chadha v. State ofRajasthan, (1966) 2 SCR 678; Mrs. Mane/ca
    Sanjay Gandhi v. Ms. Rani Jethmalani, [1979) 4 SCC 167 and Abdul Nazar
G   Madani v. State of Tamil Nadu, [2000) 6 sec 204, relied on.

          1.4. The petitioner has made out a case that public confidence in the
    fairness of trial is being seriously undermined. In the facts and circumstances
    of the case, great prejudice appear to have been caused to the prosecution
    which could culminate in grave miscarriage of justice. The witnesses who
H   had been examined and cross-examined earlier should, on such a flimsy
                 K. ANBAZHAGAN v. SUPDT. OF POLICE                            613

ground, never have been recalled for cross-examination. The fact that it is           A
done after Respondent No.2 assumed power as the Chief Minister of the State
and the Public Prosecutor appointed by her Government did not oppose and
or give consent to application for recall of witnesses which is indicative of
how judicial process is being subverted. The Public Prosecutor was not
resorting to Section 154 of the Indian Evidence Act nor making any application
to take action in perjury against the witnesses also indicate that trial was not      B
proceeding fairly. No attempt has been made to elicit or find out whether
witnesses were resiting because they were under pressure to do so. It does
appear that the new Public Prosecutor is hand in glove with the accused
thereby creating a reasonable apprehension of likelihood of failure of justice
in the minds of the public at large. There is strong indication that the process      C
of justice is being subverted. [628-D-E-F-G)

        1.5. Free and fair trial is sine qua non of Article 21 of the Constitution.
It is trite law that justice should not only be done but it should be seen to have
been done. If the criminal trial is not free and fair and not free from bias,
judicial fairness and the criminal justice system would be at stake shaking           D
the confidence of the public in the system and woe would be the rule of law. It
is important to note that in such a case the question is not whether the
petitioner is actually biased but the question is whether the circumstances
are such that there is a reasonable apprehension in the mind of the petitioner.
In the present case, the circumstances are such as to create reasonable               E
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.
                                                                 [628-H; 629-A-B)

       1.6. Even in a criminal prosecution when a witness is cross-examined
and contradicted with the leave of the court, by the party calling him, his           p
evidence cannot, as a matter of law, be treated as washed off the record
altogether. It is for the Judge of fact to consider in each case whether as a
result of such cross-examination and contradiction, the witness stands
thoroughly discredited or can still be believed in regard to a part of his
testimony. But in the present case, the Public Prosecutor has not sought
permission from the Court by resorting to Section 154 of the Evidence Act             G
even though the witnesses have resiled from their earlier testimony. In such
a situation the ~ubsequent testimony of the witnesses remains uncontroverted.
                                                          [629-F-G; 630-B-C)

     Gura Singh v. State of Rajasthan, (2001) 2 SCC 205; State of Bihar v.
Laloo Prasad, (20021 9 SCC 626 and Pandappa Hanumappa Hanamar v.                      H
    614                    SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.
A State of Karnataka, (1997110 sec 197, relied on.
          1.7. The Public Prosecutor did not oppose the application of Respondent
    No.2 to dispense with her personal appearance on ground of personal hardship
    and the trial Court allowed it. Be you ever so high the law is above you. The
    grounds recited in the application were not at all mitigating circumstances
B   to have granted dispensation of personal appearance. It was a ploy adopted to
    circumvent the due process of law. The general rule remains that the accused
    must answer the questions by personally remaining present in Court. It is
    only in exceptional circumstances that the general rule can be departed/
    dispensed with. The conduct of the Public Prosecutor in not opposing such a
C   frivolous application has to be deprecated. (630-G-H; 631-A; C; DJ

         1.8. There was no delay and laches much less, inordinate delay in filing
  the transfer petitions in the present case, which would non-suit the petitioner.
  The cases pending on the file of the Sessions Judge, Special Court, Chenoa~
  shall stand transferred to the State of Karnataka. The State of Karnataka
D shall constitute a Special Court under the Prevention of Corruption Act, in
  consultation with the Chief Justice of the High Court of Karnataka.
                                                           (631-G-H; 632-A; DJ

         Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC 740 and R.
    Balakrishna Pillai v. State of Kera/a, (2000) 7 SCC 129, distinguished.
E
         CRIMINAL APPELLATE JURISDICTION: Transfer Petition (CRL.)
    Nos. 77-78 of2003
          T.R. Andhyarujina, R. Shanmugasundaram, R. Mohan and V.G. Pragasam
    for the Petitioner.
F         Altaf Ahmed, Additional Solicitor General, A.T.M. Ranga Ramanujam,
    V.A. Bobde, S.Nanda Kumar, G.Saravana Kumar, M.Yogesh, Anuj Kumar
    Srivastava, R.Suresh, Rakesh K. Sharma, K.V. Vijaya Kumar, V. Balaji and P.N.
    Ramalingam for the Respondents.
          K.K. Venugopal, K.V. Vishwanathan, Ms. Seema Bengani, N. Jothi, B.
G Raghunath, Atul Kumar Sinha and K.V. Venkataraman for the Respondents
    No.2.
          Dr. Subramanian Swamy, In-person for Crl.M.P. Nos. 3988-89/2003
          The Judgment of the Court was delivered by

H         SEMA, J. These two petitions have been preferred under Section 406
             K. ANBAZHAGAN v. SUPDT. OF POLICE [SEMA, J.]                  615
of the Code of Criminal Procedure, seeking transfer of CC No. 7 of 1997 and      A
CC No. 2 of 200 I on the file of the XI Addi. Sessions Judge (Special Court
No. I) Chennai in the State of Tamil Nadu to a court of equal and competent
jurisdiction in any other State. The facts are common in both the petitions.
Reference to parties will be as arrayed in Transfer Petition No. 77 of2003. We
also propose to dispose of the petitions by this common judgment.
                                                                                 B
       Brief facts leading to the filing of the present petition may be noticed.
In 1991-96, the second respondent )Jerein was the Chief Minister of Tamil
Nadu. AIADMK party headed by the second respondent was defeated in the
General Election held in 1996 and DMK party was voted to power. Special
courts were constituted for the trial of cases filed against the second respondent C
and others, the constitution of which came to be upheld by this Court.
Thereafter, in 1997, CC No. 7 was filed for the trial of respondent nos. 2,3,4
and 5, who have been charge-sheeted for offences under Sections 120-B !PC,
 13(2) read with 13(1) (e) of the Prevention of Corruption Act, 1988 (hereinafter
referred to as the Act) for alleged accumulation of wealth of Rs. 66.65 crores
disproportionate to their known sources of income. In 200 I, CC No. 2/200 I D
was filed on the file of Principal Special Judge, Chennai. Respondent No. 2
and Mr. T.T.V. Dinakaran (respondent No. 3 in T.P.No.78 of2003) have been
charge-sheeted for offences under Sections 120-B IPC,13(2) read with 13(1)(e)
of Prevention of Corruption Act, 1988 for acquisition and possession of
pecuniary resources and property outside India, which are disproportionate E
to known sources of income, by resorting to clandestine transfer of funds
belonging to respondent No.2 with the help of Mr. T.T.V. Dinakaran from India
to outside country by violating the provisions of Foreign Exchange Regulatk.1
Act and from other countries into the United Kingdom. Trial of CC No. 7 of
1977 progressed and by August 2000, 250 prosecution witnesses had been
examined. We are told that only 10 more witnesses remained to be examined F
in this case. In the general election held in May, 200 I AIADMK party headed
by the second respondent secured an absolute majority in the legislative
assembly. The second respondent was unanimously chosen to be the leader
of the house by the AIADMK party. The said appointment was challenged
and this Court nullified the appointnlent. Consequently, on 21.9.2001, the
second respondent ceased to hold the office of Chief Minister. It is claimed G
that a nominee of the second respondent was sworn in as Chief Minister of
Tamil Nadu. The Election Commission of India announced the bye-election to
the Andipatti Constituency. In the bye election held on 21.2.2002, the second
respondent was declared elected and she was again sworn in as chief Minister
on 2.3.2002. With the change in government, 3 public prosecutors resigned. H
    616                    SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A Senior counsel S. Natarajan, who was appeaping for the State also resigned.
  It appears that IO Mailama Naidu, who had earlier been given an extension,
  also resigned. It must be mentioned, even though we are sure that it has
  nothing to do with the change in government, that due to retirements and
  routine transfers there were changes in the Special Judge also. On 7.11.2002,
B the trial in CC No. 7 of 1997 resumed. It is alleged that since 7.11.2002 when
  the trial resumed as many as 76 PWs have been recalled for cross examination
  on the ground that counsel appearing for the respondents or some of them
  had earlier been busy in some other case filed against them. It is claimed that
  the public prosecutor did not object and/or give consent to the witnesses
  being recalled. Out of total 76 PWs, 64 PWs resiled from their previous
C statement in chief. It is alleged that the Public Prosecutor has not made any
  attempt to declare them hostile and/or to cross-examine them by resorting to
  Section 154 of the Indian Evidence Act. No attempt has been made to see that
  Court takes action against them for perjury. It has also been alleged that the
  presence of second respondent has been dispensed with during her
  examination under Section 313 Cr.P.C. and instead a questionnaire was sent
D to second respondent and her reply to the questionnaire was sent to the court
  in absentia. It is alleged that the procedure so 1 :!opted is unknown to the law
  and the public prosecutor has not objected to the application of the respondent
  No. 2 for dispensing her presence at the time of examination under Section
  313 Cr.P.C. These are the main facts, which have been pointed out by the
E counsel for the petitioner.
         We have heard Mr. T.R. Andhyarujina, learned senior counsel for the
  petitioner. We have also heard Mr. Subramanium Swamy who was the original
  complainant. We have heard Mr. K.K. Venugopal and Mr. V.A. Bobde and Mr.
  ATM Ranga Ramanujam, learned senior counsel for the respondents. We
F have also heard Mr. Altaf Ahmed learned ASG.
          Before we advert to the merit of the case, we may at this stage, dispose
    of a preliminary objection raised by the counsel for the respondents, with
    regard to the maintainability of the present petitions.

G       The main thrust of argument has been advanced by Mr. K.K. Venugopal,
  learned senior counsel for respondent no. 2. The other respondents' counsels
  have more or less adopted the arguments of Mr. Venugopal. It is contended
  by Mr. Venugopal that the petitioner has filed Writ Petition Nos. 630 of 2002
  and I 777 of 2002, praying for identical relief which have been heard extensively
H by the High Court of Madras at Chennai and the judgment has been reserved
             K. ANBAZHAGAN v. SUPDT. OF POLICE [SEMA, J.]                    617

 on 19.2.2003. He submitted that the petitioner has filed the present petition A
 before this Court without disclosing that similar petitions are pending before
the High Court of Madras and on this score alone the Transfer Petitions are
 liable to be dismissed. He has further submitted that although the petitioner
was aware that the aforesaid two writ petitions were to be taken up for further
hearing on 6.2.2003, he has filed the present transfer petition on 5.2.2003 by
suppressing the fact that the grievances and facts raised in these petitions B
are the same as were before the High Court of Madras in the aforesaid two
writ petitions. Learned counsel has also invited our attention to paragraph I
of the counter statement of respondent No. 2 to show that the statement of
facts and grievances raised before the High Court of Madras in writ petition
Nos. 630 of 2002 and 1777 of 2002 are in pari-materia with the statement of C
facts and grievances raised before this Court in T.P. No. 77 of 2003. In this
connection, learned counsel particularly referred to statement of facts before
this Court in paras 3, 4, 7, 8, 9, 10, 13, 14, 15, 16, 17 and 18 which are stated
tobeinparimateriatoparas4,6,9, 10, 11, 12, 15, 17, 18, 19,20and21 in
writ peti~ion No. 630 of 2002. Learned counsel, therefore, urged that parallel
proceedipgs over the same statement of facts pending in the High Court, if D
allowed to be transferred to outside the jurisdiction of the High Court, the
majesty of the High Court would be greatly affected. It is further argued by
the counsel that the petitioner is trying ·to over reach the court by taking the
court for a ride, the conduct of which is highly reprehensible.
                                                                                    E
       Reliance has been placed by Mr. Venugopal. Senior counsel for the
respondent on S.B. Mathur v. Matti Ullah, [1995] supp, 92 SCC 650. There,
the petitioner filed a writ petition in the High Court of Delhi seeking interim
order against his proposed transfer. The High Court merely issued notice but
had not granted any interim order. While that petition was pending the
petitioner filed another writ petition in J & K High Court without disclosing       F
the fact of pendency of writ petition in the Delhi High Court and obtained
the interim order from J & K High Court and subsequently withdrew the writ
petition filed in the High Court of Delhi. It is in these circumstances, this
Court has stayed the interim order, passed by the J & K High Court, on the
ground that the petitioner obtained interim order without disclosing the fact       G
that the writ petition is also pending before the Delhi High Court. Mr. Venugopal
also relied on the decision rendered in G. Narayanaswamy Reddy (dead) by
Lrs. v. Government of Karnataka, [1991] 3 SCC 261.In that case, the interim
orders of stay of dispossession from land were issued by courts in favour
of the landowners. This was a highly material fac.t for deciding the question
of delay in making the award under the Land Acquisition Act. This fact was          H
    618                     SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A not disclosed by the petitioners in Special Leave Petitions and the fact was
    highlighted by the counter affidavit filed on behalf of the respondents. It is
    in these circumstances, this Court observed that relief under Section 136 of
    the Constitution is discretionary. The petitioner who approaches this Court
    for such relief must come with full disclosure of facts and on this ground the
B   Special Leave Petitions were dismissed.

          It would have been advisable for the petitioner to have informed this
    Court about the proceedings in the Madras High Court. However, as is set
    out in greater detail hereinafter, it appears that justice is not being done. In
    fact it appears that the course of justice is being subverted. Thus even
C   though this Court might otherwise have viewed the conduct, in not disclosing,
    seriously we do not feel that, in this matter, on this ground, we can allow the
    course of justice to be subverted. Further we find that even though some
    statements of facts made before the High Court, are in parimateria .with the
    facts stated before this Court, these petitions are not parallel proceedings.
    The petitions pending before the High Court are under Article 226 of the
D   Constitution and the Transfer Petitions have been filed under Section 406 of
    the Code of Criminal Procedure. The jurisdiction of the high Court under
    Article 226 of the Constitution and the jurisdiction of this Court under Section
    406 Cr.P.C. are quite distinct and different.

          It is also to be noticed that the prayer made before the High Court and
E · before this Court are also different. Before the High Court in writ petition No.
    630 of 2002 the petitioner prayed the following reliefs:-

                "I pray that this Hon'ble Court may be pleased to direct the
            appointment of an independent experienced Lawyer as the Special
            Public Prosecutor for the conduct of the prosecution case in C.C.No.
F           7 of 97 on the file of the XI Additional Sessions Judge (Special Court
            I) Chennai, and C.C.No.2 of2001 on the file of the Learned Principal
            Sessions Judge transferred to the file of XI Additional Sessions Judge
            (Special Court I) Chennai pending disposal of the writ petition.
                 I, therefore, pray that this Hon 'ble Court may be pleased to issue
G
            a Writ of Mandamus or any other appropriate order or direction in the
            nature of a writ, directing the entrustment of C.C.No. 7 of 97 on the
            file of the XI Additional Sessions Judge (Special Court I) Chennai,
            and C.C.No. 2 of 200 I on the file of the Learned Priccipal Sessions
            Judge (Special Court I) Chennai to the Ist Respondent or any other
H           independent agency not under the control of the State Government
              K.ANBAZHAGAN v. SUPDT.OFPOLICE [SEMA,J.]                        619

         of Tamil Nadu, and pass such further order or orders as deem fit and . A
         proper in the circumstances of the case and thus render justice.

       In Writ Petition No. 1777 of 2002, the following reliefs are prayed for:

            "In the above circumstances, it is most humbly prayed that this
        Hon'ble Court may be pleased to issue a Writ of Mandamus or any B
        other appropriate order or direction in the nature of Writ, appointing
        one or more experienced Counsel as the prosecutor or prosecutors for
        conducting the criminal case in C.C.No. 7 of97 pending on the file of
        the XI Additional Sessions Judge cum Special Judge No. I, Chennai
        and C.C.No. 2 of2001 (which has been ordered to be transferred from
        the Learned Principal Special Judge Chennai to the XI Additional C
        Sessions Judge cum Special Judge No.I, Chennai by this Hon'ble
        Court in Crl. O.P. No. 21969 of2001 dated 10.1.2002) and directly
        monitor the conduct of the above said cases under the powers of
        Judicial Superintendence vested in the High Court and to pass such
        further orders as deemed just and proper in the circumstances of the D
        case and thus render justice."

       In the present petitions before this Court the following reliefs are prayed .
for:

             "(a) transfer ofC.C.No. 7of1997 entitled to The Superintendent            E
        of Police v. J.Jayalalitha and Ors. and C.C.No.2 of 2001 entitled to
        Additional Superintendent of Police v. J. Jayalalitha and Ors. on the
        file of the XI Additional Sessions Judge (Special Court-I) Chennai in
        State of Tamil Nadu to Court of equal and competent jurisdiction in
        any other State.
                                                                                       F
             (b) pass such other or further order or orders as this Hon'ble
        Court may deem fit and proper in the circumstances of the case."

       It is also contended by the counsel for the respondent, that having
known that the judgment in the writ petitions has been reserved by the High
Court on 19.2.2003, the petitioner obtained interim order before this Court on G
28th March, 2003 without disclosing the fact that the judgment in writ petitions,
before the High Court, has been reserved. It is true, that it was incumbent on
the part of the petitioner, to have disclosed the fact that the writ petitions are
also pending before the High Court, in which the judgment has been reserved.
But non-disclosure of this fact would not, for reasons set out above, non-
suit the petitioner to approach this Court with an application under Section H
    620                     SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A 406 Cr.P.C.
          The second leg of argument what appears to be an argument of despair,
  is of locus standi of the petitioner. In point of fact this question need not
  detain us any longer because on 28.2.2003 this Court had already granted
  permission to the petitioner to file the petition. No application has been taken
B out to revoke the permission so granted. Therefore, this question becomes
  mere academic. However, since the question involved is of public importance,
  we proceed to answer the question. Mr. V.A. Bobde, learned senior counsel,
  appearing for respondent Nos. 3 and 4 in CC7 of 1997 and respondent No.3
  in CC2 of 200 I contended that in view of the provision of sub-section 2 of
C Section 406 Cr. P.C. the petition is maintainable only when motion is moved
  by the Attorney General or by "party interested". According to the counsel,
  it is the "party interested" and not a "person interested" and, therefore, only
  Attorney General or a "party interested" has locus standi to file application
  and the petitioner not being a party to the proceeding is not a "party
  interested", and has no locus standi to file the present petition. We are
D unable to accept this submission for more than one reason. It will be noticed
  that the "party interested" has not been defined under Cr.P.C. The word
  "party interested" is of a wide import and, therefore, it has to be given a wider
  meaning. If it was the intendment of the legislature to give restricted meaning
  then they would have used words to the effect, "party to the proceedings".
E In this behalf the wording of Article 139A of the Constitution of India may
  be looked at. Under Article 139A the transfer can be if" the Supreme Court
  is satisfied on its own motion or on the application made by the Attorney
  General of India or by a party to any such case (emphasis supplied). Also
  if the provisions of Chapter XXIX of the Criminal Procedure Code are looked
  at, it is seen that when the legislature intended a "party to the proceeding"
F to have a right of appeal it specifically so stated. The legislature, therefore,
  keeping in view the larger public interest involved in a criminal justice system,
  purposely used words of a wider import in Section 406. Also it is well-settled
  principle of law that statutes must be interpreted to advance the cause of
  statute and not to defeat it. The petitioner being a political opponent, is vitally
G interested in the administration of justice in the State and is a "party interested"
  within the meaning of sub-section 2 of Section 406 Cr.P.C. Even otherwise Mr.
  Subramanium Swamy was the original complainant. He supports these transfer
  petitions.

       It has also been urged that the petitioner being a political opponent of
H respondent No.2, these petitions have been launched against respondent
             K. ANBAZHAGAN v. SUPDT. OF POLICE [SEMA, J.]                  621
 no.2 on ground of political vendetta. This submission has also no force. In A
 a democracy, the political opponents play an important role both inside and
 outside the House. They are the watchdogs of the government in power. It
 will be their effective weapon to counter the misdeeds and mischieves of the
 government in power. They are the mouthpiece to ventilate the grievances of
the public at large, if genuinely and unbiasedly projected. In that view of the
matter, being a political opponent, the petitioner is a vitally interested party B
 in the run of the government or in the administration of criminal justice in the
 State. The petition lodged by such persons cannot be brushed aside on the
allegation of a political vendetta, if otherwise, it is genuine and raises a
reasonable apprehension of likelihood of bias in the dispensation of criminal
justice system. This question has been set at rest by this Court in Sheonandan C
Paswan v. State of Bihar, [ 1987] I SCC 288 SCC p. 318, para 16), where it is
said:

        "It is a well established proposition oflaw that a criminal prosecution,
        if otherwise justifiable and based upon adequate evidence does not
        become vitiated on account of ma/a fides or political vendetta of the D
        first informant or the complainant." .

This decision was reiterated in State of Haryana and Ors. v. Bhajan Lal and
Ors., [1992] Supp. I SCC 335.

      In the present case, in our view, the petitioner has raised many justifiable E
and reasonable apprehensions of miscarriage of justice and likelihood of bias,
which would require our interference in exercise of our power under 'section
406Cr.P.C.

      At this stage, we may notice few decisions of this Court with regard to
the scope of Section 406 Cr.P.C. In Gurcharan Das Chadha v. State of F
Rajasthan, [1966] 2 SCR 678 at SCR p.686, this Court observed as under:-

       "A case is transferred if there is a reasonable apprehension on the
       part of a party to a case that justice will not be done. A petitioner is
       not required to demonstrate that justice will inevitable fail. He is
       entitled to a transfer if he shows circumstances from which it can be G
       inferred that he entertains an apprehension and that it. is reasonable
       in the circumstances alleged. It is one of the principles of the
       administration of justice that justice should not only be done but it
       should be seen to be done. However, a mere allegation that there is
       apprehension that justice will not be done in a given case does not H
    622                    SUPREME COURT REPORTS (2003) SUPP. 5 S.C.R.

A          suffice. The Court has further to see whether the apprehension is
           reasonable or not. To judge of the reasonableness of the apprehension
           the State of the mind of the person who entertains the apprehension
           is no doubt relevant but that is not all. The apprehension must not
           only be entertained but must appear to the Court to be a reasonable
           apprehension."
B
          In Mrs. Maneka Sanjay Gandhi v. Ms. Rani Jethma/ani, (1979) 4 SCC
    167, this is what this Court has said in paragraph 2:

           "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
c          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
D          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 aga!nst him should be
           tried. Even so, the process of justice should not harass the parties
E          and from that angle the court may weigh the circumstances.

          In Abdul Nazar Madani v. State o/Tamil Nadu, (2000] 6 SCC 204, this
    court pointed out in paragraph 7 at page sec p.210 as under:-

           "The purpose of the criminal trial is to dispense fair and impartial
F          justice uninfluenced by extraneous considerations. When it is shown
           that public confidence in the fairness of a trial would be seriously
           undermined, any party can seek the transfer of a case within the State
           under Section 407 and anywhere in the country under Section 406
           Cr.P.C. The apprehension of not getting a fair and impart.ial inquiry or
           trial is required to be reasonable and not imaginary, based upon
G          conjectures and surmises. If it appears that the dispensation of criminal
           justice is not possible impartially and objectively and without any
           bias, before any court or even at any place, the appropriate court may
           transfer the case to another court where it feels that holding of fair
           and proper trial is conducive. No universal or hard and fast rules can
H          be prescribed for deciding a transfer petition which has always to be
             K. ANBAZHAGAN v. SUPDT. OF POLICE [SEMA, J.]                 623

        decided on the basis of the facts of each case. Convenience of the A
        parties including the witnesses to be produced at the trial is also a
        relevant consideration for deciding the transfer petition. The
        convenience of the parties does not necessarily mean the convenience
        of the petitioners alone who approached the court on misconceived
        notions of apprehension. Convenience for the purposes of transfer B
        means the convenience of the prosecution, other accused, the
        witnesses and the larger interest of the society."

      Reverting to the facts of the case, respondent no.2 is the Chief Minister
of Tamil Nadu. Respondent Nos.3, 4 and 5 are her close relatives or close
associates. In CC 7 of 1997 and CC 2 of 2001 she has been arraigned as            C
accused No. I. In this petition serious contentions have been raised from
paragraph 25 to paragraph 33. These are extracted:

       "25. It is submitted that the 2nd Respondent being the Chief Minister
       of Tamil Nadu, the cases pending against her have to be entrusted to
       an independent agency. I submit that the police officers who are under D
       the control of the State Government cannot be expected to prosecute
       the cases against the 2nd Respondent diligently. In fact there will be
       every attempt to save the 2nd Respondent and others from punishment.
       Similarly the law officers appointed by the State Government also
       cannot be in charge of the cases pending against the 2nd Respondent
       and others.                                                            E
       26. It is submitted that after nearly 7 months of lull the trial in the Rs.
       66.65 crores disproportionate wealth case in C.C.No. 7/97 against the
       2nd Respondent Chief Minister Ms. J. Jayalalitha and others resumed
       on the 7-11-2002. In this connection it is pertinent to point out' that
       it is common knowledge that number of witnesses have been cross- F
       examined before the trial came to a pause due to reconstitution of the
       Special Courts. When the trial resumed on 7-11-2002 Indian Bank
       Official Shri A.R. Arunachalam was cross examined. On his chief
       examination which took place on 16-6-2000 Shri Arunachalam was
       cited as a witness by the DVAC. He was an official of the Indian Bank G
       at the relevant point of time. He was cross examined on the accounts
       maintained by Mrs. Sasikala a close associate of Ms. J. Jayalalitha as
       well as the accounts maintained by Sasikala's relatives.
       27. It is submitted that it is ascertained that another witness Shri R.
       Krishnamoorthy of Saidapet who was working as a Section officer in H
    624                    SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A           the Information and Tourism Department of Government of Tamil
            Nadu at the relevant point of time was also cross examined. In his
            chief examination on 31-5-2000 Shri R. Krishnamoorthy had deposed
            that Shri Natarajan, husband of Sasikala joined the social welfare
            department as a Publicity Assistant on 13-5-1970 and he became an
            information and Public Relation Officer on 13-11-1970. He further
B           deposed in his chief examination that Shri Natarajan was in the said
            post till 1976 till the abolition of the post. In 1980 Shri Natarajan got
            back the post and he became a Deputy Director in 1988. Shri R.
            Krishnamoorthy has clearly deposed in his chief examination that Shri
            Natarajan husband of Sasikala had given Mrs. Sasikala's name as the
c           PPF nominee and Shri Natarajan obtained a scooter advance apart
            from a housing loan of Rs. 1,84,700 Shri Natarajan also obtained a car
            loan of Rs. 80,000 in the year 1987. However on the cross examination
            held on 7-11-2002 the witness ofShri R. Krishnamoorthy said that he
            did not tender any evidence regarding the nomination of PPF account
            of Shri Natarajan. The witness also said in his cross examination that
D           he did not know the dates on which Shri Natarajan applied for Scooter
            loan or when he obtained the loan amount. The witnesses went on
          · to say that he did not know when Shri Natarajan applied for housing
            loan and when it was sanctioned.

           28. It is submitted that on 8-11-2002 P.W. 151 Mansoor Ahamed was
E          cross examined. On 11-11-2002 P.W. 148 Mohan who is running the
           business of Automobile upholstery turned hostile during his cross-
           examination. On 11-11-2002 itself P.W. 196 Hajaj Ahmed, a tailor who
           was entrusted with the task of tailoring the marriage dress of 5th
           Respondent herein/the fourth accused was cross-examined. The fourth
F          accused Shri Sudhagaran is the sister's son of the second accused
           Mrs. Sasikala. On 12.11.2002 P. W 184 a tourist car operator was cross-
           examined. On the subsequent day of 13.11.2002 P.W. 147 Madan Lal,
           P.W. 186 Chaiapathy Rao and P.W. 219 R.S. Usman were cross-
           examined. The trial stood adjourned to 18.11.2002. The Special Judge
           has ordered summons as per the process list as prepared by the
G          special Court.

           29. On 18.11.2002 five witnesses were recalled and cross-examined by
           the counsel for the accused. The five witnesses who were examined
           on this date were P.W. 127 Rajseshwari, P.W. 180 Suseela. P.W.143
           Geethalakshmi, P. W. 174 Mani and P.W. 206 Abdul Jaffar. Trial
H
         K. ANBAZHAGAN v. SUPDT. OF POLICE [SEMA, J.]                625
    continued on 19.11.2002 and two witnesses were examined. P. W. 171      A
    Abdul Razack, Village Administrative Officer of Thiruthuraipoondi
    village was examined on that date. The other witness who was examined
    on the said day was P.W. 234 Mohammed Asumathulla Hussain who
    is Block Development Officer of Siruvathoor village in Thiruporur
    Taluk. The next date of effective proceedings were on 2.12.2002 on      B
    which date four more witnesses were examined. They were P.W. 183
    Ramesh, P.W. 198 Jayaraman, P.W. 216 Naziruddin and P.W. 218 V.M.
    Somasundaram.

    30. Similarly during the trial at the end of January 2003, P.W. 237 Shri
    S.S Jawahar, l.A.S. formerly working as Deputy Secretary who was C
    examined as prosecution witness in the years 2000 was recalled at the
    instance of the accused and was cross examined. In that cross
    examination he has stated that what he has deposed in the Chief
}   Examination in the year 2000 was under pressure. The Public Prosecutor
    has not taken any steps to treat him hostile or to file any petition for
    perjury. So also P.W, 230 Shri N.V. Balaji, Auditor of some of the D
    Accused whose chief examination was over in the year 2000, on recall
    has stated in the cross examination that the Accused had enormous
    funds during the relevant period. His statement was made orally
    contrary to his deposition in chief examination, unsupported by any
    Assessment returns or other documentary evidence. Public Prosecutor E
    has not disputed this nor put any suggestion controverting the above
    statement.

    31. On 3-2-2003 in the Crl. M.P. No. 125 of2003 filed on behalf of
    Respondent No.4/Accused No.3 for recall of witnesses special Public
    Prosecutor made an endorsement that he had no objection for allowing F
    the petition. After recording the above endorsement the Special Court
    allowed recall of witnesses for cross examination by the Accused,
    who were all examined more than 2 years back. Consequently on 4-
    2-2003 P.W. 46 Shri T.G. Gopinath, P.W.51 Shri Amamath Mariacose,
    P.W. 84 Shri V. Ayyadurai, P.W.141 Shri M. Swaminathan and P.W.201
    Shri C.K.R.K. Vidhyasagar were summoned and cross-examined by the G
    Accused. All the above witnesses have stated that their earlier
    deposition in Chief examination was given under pressure. The Public
    Prosecutor has not made any effort to declare them hostile and cross-
    examine them.
    32. It is submitted that the act of recalling most of the witnesses for H
    626                   SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A          the purpose of cross examination and the fact of some of the witnesses
           turning hostile does not inspire confidence in the mind of public that
           free and fair trial would be conducted by the present prosecution.
           There is a genuine apprehension in the mind of the public and that
           there is a real likelihood of bias, if not a pronounced bias in the
           conduct of prosecution by the prosecutor appointed by the AIADMK
B          Government.

           33. It is submitted that justice must not only be done but must be seen
           to be done. Free and fair trial being the foundation of criminal
           jurisprudence. There is prevalent apprehension in the mind of the
           public at large that the trial is neither free nor fair with the present
c          prosecutor appointed by State Government conducting the trial in a
           manner where frequently the prosecution witnesses turn hostile
           especially during cross examination. Recalling most of the witnesses
           for the purpose of cross examination after the appointment of the
           Prosecutor chosen by the 2nd Respondent Government and after a             '
D          lapse of several months itself creates a strong likelihood of official
           bias in the conduct of prosecution when the Chief Minister of the
           state is the first accused."

         Counter on behalf of the second respondent has been filed. In fact
  respondent nos. 3,4 and 5 have adopted the counter of respondent No. 3
E Respondent No.3 has denied the correctness of the statement made by the
  petitioner in respect of PW-126 R. Krishnamoorthy and PW-230 N.V. Balaji.
  The rest of the statements contained in paragraphs 25 to 33 have not been
  controverted. The second respondent has filed a detailed counter. In the
  counter of the second respondent also the statements made in paragraphs 25
F to 33 of the petition have not been controverted. Respondent No. I has also
  filed a detailed counter. In paragraph 8 of the said counter, it is stated as
  under:-

           "I submit that the petitioner has not appreciated the legal concept of
           a "hostile witness", correctly. Accurate narration has not been made
G          by the petitioner, in so far as the instances set out by him. The
           depositions of witnesses Mr. Krishnamoorthy and Mr. Balaji have not
           been accurately summarised by him. I submit that the Investigating
           Agency and the Prosecutor took a considered decision as to when
           they should seek cross-examination of their own witnesses under
           section 154 of the Evidence Act. If any aspect is to be clarified, it is
H          done by re•examination, which, in fact, was done in the case of
                 K. ANBAZHAGAN v. SUPDT. OF POLICE [SEMA, J.]                   627

            witness Balaji. In so far as witness Krishnamoorthy was concerned, A
            he did not say that he has not tendered evidence regarding the
            nomination of the Provident Fund account of Natarajan. He only
            stated that he did not tender any documentary evidence."

           It is undisputed that 76 witnesses have been recalled. Many of them
    had earlier been cross-examined. On a question from Court we were informed B
    that the witnesses were recalled as Senior counsel for the second Respondent
    had been busy attending to some other case filed against her when they were
    first examined. This could hardly have been a ground for recall of witnesses.
    The fact tha~ the public prosecutor now appointed did not object to such an
    application itself suggests that free and fair trial is not going on. It appears C
    that process of justice is being subverted. This gets reinforced by the fact
    that even when witness after witness has resiled from what they had stated
    in the evidence in chief, yet no steps have been taken by the public prosecutor
    to resort to Section I54 of the Indian Evidence Act. As already noticed, the
    second respondent became the Chief Minister in May, 200 I. The list of
    witnesses recalled and cross-examined after 14.5.2001 has been set out by the D
    Petitioner in Annexure P-2 of the affidavit of the petitioner. For brevity, we
    refer to few instances.

         PW-98 Velayudham was examined in chief on 6.12.1999; cross-examined
    by Al and A2 on 6.12.1999; recalled and cross-examined on 18.12.2002; resiled
    from his previous statement. No re-examination and not treated as hostile.         E
         PW-116 Jayabal was examined in chiefon 23.12.1999; cross-examined by
    Al on 6.1.2000 and 13.1.2000; re-examined on 13.1.2000; recalled and cross-
    examined on 30.12.2002, 31.12.2002 and 2.1.2003 by Al, A2 and A4; resiled
    from his previous statement. No re-examination and not treated as hostile.
                                                                                       F
           PW-126 Krishnamurthy was examined in chief on 10.2.2000 and 2.3.2000;
    recalled and cross-examined on 2.1.2003 and 23.1.2003; resiled from his previous
    statement. No re-examination and not treated as hostile.

           PW-129 Namasi was examined in chief and cross-examined on 9.3.2000;         G
    recalled and re-examined on 13.12.2002. No re-examination.

           PW-130 Maran was examined in chief and cross-examined on 9.3.2000;
    recalled and cross-examined on 13.12.2002; resiled from his previous statement.
    No re-examination and not treated as hostile.
                                                                                       H
.
'
    628                    SUPREME COURT REPORTS (2003) SUPP. 5 S.C.R.

A         PW-134 Rajendran was examined in chief and cross-examined on
    12.4.2000. 18.4.2000. 25.4.2000 and 5.5.2000; recalled and cross-examined on
    6.1.2003; resiled from his previous statement. No re-examination and not
    treated as hostile.

          PW-135 Parthasarathy was examined in chief on 25.4.2000, 2.5.2000,
B 12.5.2000 and 17.5.2000; recalled and cross-examined on 6.1.20~3 by Al, A2
    and A4; resiled from his previous statement. No re-examination and not
    treated as hostile.

          PW-155 Subburaj was examined in chief on 12.5.2000; recalled and
C   cross-examined on 22.1.2003 by A1, A2 and A4; resiled from his previous
    statement. No re-examination and not treated as hostile.

         We have cited only a few instances to show how the prosecution
    appears to have acted hand in glove with the accused.

         On examining the facts of this case, as adumbrated above, on the
D touchstone of the decisions of this Court, as referred to above, the petitioner
  has made out a case that the public confidence in the fairness of trial is being
  seriously undermined. As revealed from the aforesaid recited facts, great
  prejudice appear to have been caused to the prosecution which could
  culminate in grave miscarriage of justice. The witnesses who had been examined
E and cross-examined earlier should on such a flimsy ground never have been
  recalled for cross-examination. The fact that it is done after the second
  respondent assumed the power as the Chief Minister of the State and the
  public prosecutor appointed by her government did not oppose and/or give
  consent to application for recall of witnesses is indicative of how judicial
  process is being subverted. The public prosecutor not resorting to Section
F 154 of the Indian Evidence Act nor making any application to take action in
  perjury taken against the witnesses also indicate that trial is not proceeding
  fairly. It was the duty of the public prosecutor to have first strenuously
  opposed any application for recall and in any event to have confronted
  witnesses with their statements recorded under Section 161 of Cr.P.C. and
G their examination-in-chief. No attempt has been made to elicit or find out
  whether witnesses were resiling because they are now under pressure to do
  so. It does appear that the new public prosecutor is hand in glove with the
  accused thereby creating a reasonable apprehension of likelihood of failure
  of justice in the minds of the public at large. There is strong indication that
  the process of justice is being subverted.
H
              K. ANBAZHAGAN v. SUPDT. OF POLICE [SEMA, J.)                   629

        Free and fair trial is sine qua non of Article 21 of the Constitution. It    A
is trite law that justice should not only be done but it should be seen to have
been done. If the criminal trial is not free and fair and not free from bias,
judicial fairness and the criminal justice systeni would be at stake shaking the
confidence of the public in the system and woe would be the rule of law. It
is important to note that in such a case the question is not whether the
petitioner is actually biased but the question is whether the circumstances are      B
such that there is a reasonable apprehension in 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.

       Mr. Venugopal, learned senior counsel for the respondent, contended
                                                                                     c
that merely because the witnesses were not declared hostile, would not
exclude or render unworthy of consideration the facts rendered by them in
their evidence-in7chief. He submitted that the Court can consider any part of
their testimony and can still believe and rely upon that part of testimony
which was given in the evidence in chief if that part of the deposition is found D
to be creditworthy. According to Mr. Venugopal by not declaring the PWs
as hostile witnesses no prejudice has been caused to the prosecution case.
To buttress his contention reliance has been placed in Gura Singh v. State
ofRajasthan, [200 I] 2 SCC 205, State ofBihar v. Laloo Prasad, [2002] 9 SCC
626 and Pandappa Hanumappa Hanamar v. State of Karnataka, [1997] 10 E
SCC 197. This Court in La/oo Prasad's case (supra) observed that it is open
to the party who called the witness to seek the permission of the Court as
envisaged in Section 154 of the Evidence Act at any stage of the examination
and it is a discretion vested with the court whether to grant the permission
or not. It is further observed that normally when the public prosecutor
requested for the permission to put cross-questions to a witness called by F
him the court used to grant it. It was further pointed out that if the public
prosecutor had sought permission at the end of the chief examination itself
the trial court would have no good reason for declining the permission sought
for. On a combined reading of the aforesaid decisions of this Court, it emerges
clearly that even in a criminal prosecution when a witness is cross-examined G
and contradicted with the leave of the court, by the party calling him, his
evidence cannot, as a matter of law, be treated as washed off the record
altogether. It is for the Judge of fact to consider in each case whether as a
result of such cross-examination and contradiction, the witness stands
thoroughly discredited or can still be believed in regard to a part of his
testimony. If the Judge finds that in the process, the credit of the witness has H
    630                     SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A not been completely shaken, he may, after reading and considering the evidence
  of the witness, as a whole, with due caution and care, accept, in the light of
  other evidence on the record, that part of his testimony which he finds to be
  creditworthy and act upon it. The decisions by this court in the above
  referred cases are rendered in cases where the public prosecutor seeks
B permission to question his own witnesses by resorting to Section 154 of the
  Evidence Act and the court allowed the public prosecutor to cross-examine
  his own witnesses. In such cases the trial judge has discretionary power to
  examine the entire testimony and accept that part of testimony which he finds
  to be creditworthy and act upon it. But in the present case, the public
  prosecutor has not sought permission from the court by resorting to Section
C 154 of the Evidence Act even though the witnesses have resiled from their
  earlier testimony. In such a situation the subsequent testimony of the witnesses
  remains uncontroverted. Just to take an example, when the witness now states
  that his earlier evidence was given under pressure and no attempt is made
  to cross-examine such a witness, the Court may find it difficult if not impossible
  to accept the earlier statement. The Trial Judge may find it difficult not to
D accept the subsequent testimony of the witness, which has remained
  uncontroverted. This causes great prejudice to the prosecution culminating
  in great miscarriage of justice.

          Mr. Andhyarujina, learned senior counsel for the petitioner, has brought
E to our notice the manner in which the examination of 2nd respondent under
  Section 313 is sought to be done, which according to him, is unknown to the
  procedure established by law. The second respondent filed a criminal M.P.No.
  230 of 2003 dated 24.2.2003 with the prayer to dispense with the personal
  appearance and to permit her to answer the questionnaire through the counsel,
  a copy of which is made available to us. It is averred in paragraph 5 of the
F application that she has just returned from hectic election campaign after a
  week's tour of Thoothukudi District. She has further stated that she is quite
  exhausted and laid up with fever and the doctor has advised her complete rest
  for a few days. She is physically incapacitated to attend the Court in person
  to fulfil the requirement of Section 313 Cr.P.C. The physical hardship, which
G the applicaot may undergo while answering the questions, will further
  aggravate physical condition. In paragraph 6 she has further stated that she
  is making the application not because of the position she is holding but
  purely on the ground of physical condition. The public prosecutor did not
  oppose the said application. In the aforesaid facts, the trial court allowed the
  application by an order dated 24.2.2003. Be you ever so high the law is above
H you. In our view, the grounds recited in the application as referred to above,
              K. ANBAZHAGAN v. SUPDT. OF POLICE [SEMA, J.]                   631
 were not at all mitigating circumstances to have granted dispensation of A
 personal appearance. To say the least, that was a play adopted to circumvent
the due process of law. Mr. Venugopal has drawn our attention to the decision
of this Court rendered in Basavaraj R. Patil v. State of Karnataka, [2000] 8
SCC 740, where this Court allowed the accused to dispense with personal
 appearance and make application to the court praying that he may be allowed B
to answer the questionnaire without making his physical appearance in court
under the conditions stipulated therein. That order was rendered in exceptional
exigency circumstances. The accused was in a far-away country - America
and he had to incur a whopping expenditure and undertake a tedious long
journey solely for the purpose of answering the court questions. This authority
makes it clear that the general rule remains that the accused must answer the C
questions by personally remaining present in Court. It is only in exceptional
circumstances that the general rule can be departed/dispensed with. In this
case respondent No. 2 is holding the position of the Chief Minister of Tamil
Nadu. She was available at Chennai. There was no exceptional exigency or
circumstances such as her having to undertake a tedious long journey or
incur a whopping expenditure to appear in Court to answer the questions D
under Section 313 Cr.P.C. None of the facts, which have weighed with the
consideration of the Court in Basavaraj's case (sapra), was available in the
given case. The grounds given in her application do not make out any case
for granting exemption from personally appearing to question under Section
313. The conduct of the public prosecutor in not opposing such a frivolous E
application has to be deprecated.

      Lastly, it is contended by counsel for the respondents, that the petitioos
seeking transfer of the cases have been filed belatedly and these petitions
deserve dismissal for (aches and negligence of the petitioner. Reliance. was
placed on the decision of this Court rendered in R. Balakrishna Pillai v. State      F
of Kera/a, [2000] 7 SCC 129, where this court dismissed the petition on the
ground that objection was raised four long years after filing of the appeal and
no objection was taken when the appeal was heard by a Single Judge who
referred the matter to a larger Bench. The facts of that case are not applicable
in the facts of the present case. As already noticed, sequence of events             G
leading to the filing of the petitions started on 7.11.2002. The present petitions
were filed on 5.2.2003. We do nqt find any delay and !aches much less,
inordinate delay, which would non-suit, the petitioner.

       In the result, we deem it expedient for the ends of justice to allow these
petitions. The only point that remains to be considered is now to which State        H
    632                     SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A   the cases should be transferred. We are of the view that for the convenience
    of the parties the State of Kamataka would be most convenient due to its
    nearness to Tamil Nadu. Accordingly, the petitions are allowed. C.C.No.7, of
    1997, and C.C.No.2 of2001 pending on the file of the XI Addi. Sessions Judge
    (Special Court No. I) Chennai, in the State of Tamil Nadu shall stand transferred
B   with the following directions:-

            (a) The State of Kamataka in consultation with the Chief Justice of
            the High Court of Kamataka shall constitute a Special court under the
            Prevention of Corruption Act, 1988 to whom CC No. 7 of 1997 and CC
            No. 2 of 2001 pending on the file of the XI Addi. Sessions Judge
            (Special Court No. I) Chennai in the State of Tamil Nadu shall stand
c           transferred. The Special Court to have its sitting in Bangalore.

            (b) As the matter is pending since 1997 the State of Kamataka shall
            appoint Special Judge within a month from the date of receipt of this
            Order and the trial before the Special Judge shall commence as soon
            as possible and will then proceed from day to day till completion.
D
            (c) The State of Kamataka in consultat.on with the Chief Justice of
            High Court of Kamataka shall appoint a senior lawyer having experience
            in criminal trials as public prosecutor to conduct these cases. The
            public prosecutor so appointed shall be entitled to assistance of
E           another lawyer of his choice. The fees and all other e.xpenses of the
            Public Prosecutor and the Assistant shall be paid by the State of
            Kamataka 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.

F           (d) The investigating agency is directed to render all assistance to the
            public prosecutor and his assistant.

            (e) The Special Judge so appointed to proceed with the cases from
            such stage as he deems fit and proper and in accordance with law.

            (f) The Public Prosecutor will be at liberty to apply that the witnesses
G           who have been recalled and cross-examined by the accused and who
            have resiled from their previous statement, may be again recalled. The
            public prosecutor would be at liberty to apply to the court to have
            these witnesses declared hostile and to seek. permission. to. cross- .
            examine them. Any such application if made to the Special court shall
H           be allowed. The public prosecutor will also be at liberty to apply that
                K. ANBAZHAGAN v. SUPDT. OF POLICE (SEMA, J.]                     633

           action in perjury to be taken against some or all such witnesses. Any        A
           such application/s will be undoubtedly considered on its merit/s.

          (g) The State of Tamil Nadu shall ensure that all documents and
          records are forthwith transferred to the Special Court on its constitution.
          The State of Tamil Nadu shall also ensure that the witnesses are
          produced before the Special Court whenever they are required to               B
          attend that .Court.

          (h) In case any witness asks for protection the State of Kamataka
          shall provide protection to that witness.

          (i) The Special Judge shall after completion of evidence put to all the       C
          accused all relevant evidence and documents appearing against them
          whilst recording their statement under Section 313. All the accused
          shall personally appear in Court, on the day they are called upon to
          do so, for answering questions under Section 313, Criminal Procedure
          Code.
                                                                                        D
         These Petitions are allowed in the above terms.

S.K.S.                                                           Petitions allowed.