Over to Bangalore

Print edition : December 19, 2003

Sasikala Natarajan at the Special Court in Chennai on February 25, in connection with the "disproportionate wealth" case. - VINO JOHN

The Supreme Court orders the transfer of the trial in the "disproportionate wealth" cases, in which Jayalalithaa is the prime accused, from Chennai to Bangalore on the grounds of a "strong indication that the process of justice is being subverted".

ALTHOUGH the Supreme Court acquitted Tamil Nadu Chief Minister Jayalalithaa in the two TANSI cases, she is not out of the legal woods yet. On November 18, a Bench of the court ordered the transfer of two "disproportionate wealth" cases against her from a Special Court in Chennai to a Special Court to be set up in Bangalore. In their 32-page judgment, Justices S.N. Variava and H.K. Sema said: "The petitioner has made out a case that the public confidence in the fairness of the trial is being seriously undermined... There is strong indication that the process of justice is being subverted."

The first case was based on the allegation that during Jayalalithaa's tenure as Chief Minister from 1991 to 1996, she and three of her associates acquired assets worth Rs.66.65 crores, which was "disproportionate to her known sources of income". She drew a salary of Re.1 a month when she was Chief Minister.

The second case was based on the alleged purchase of two hotels in the United Kingdom by companies floated by T.T.V. Dinakaran, currently the All India Anna Dravida Munnetra Kazhagam (AIADMK) member of the Lok Sabha representing Periakulam in Tamil Nadu. The Directorate of Vigilance and Anti-Corruption (DVAC), which filed the cases, alleged in its charge-sheet that Jayalalithaa had illegally funnelled funds amounting to Rs.43.98 crores to foreign countries and used them to buy the hotels in 1994. The first accused was Jayalalithaa and the second Dinakaran.

The petitioner, K. Anbazhagan, general secretary of the Dravida Munnetra Kazhagam (DMK), had filed two petitions in the Supreme Court, requesting the transfer of the two cases to "a court of equal and competent jurisdiction in any other State" to ensure a free and fair trial. The two cases were filed when the DMK, headed by M. Karunanidhi, was in power in Tamil Nadu.

The Bench rejected the argument of K.K. Venugopal, counsel for Jayalalithaa, that Anbazhagan had no locus standi to file the petitions. The Bench called it "an argument of despair" and added that the submission that Anbazhagan filed the petitions because of political vendetta had "no force". It said that in a democracy, political opponents "are the watchdogs of the government in power".

The order that allowed Anbazhagan's petitions said: "In the present case, the circumstances... 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." The impleading application filed by Janata Party president Subramanian Swamy, the original complainant, was also allowed.

The Judges gave the following directions: the Karnataka government, in consultation with the Chief Justice of the Karnataka High Court, shall constitute a Special Court in Bangalore under the Prevention of Corruption Act (PCA), 1988, to whom the two cases shall be transferred; the Special Court will have its sittings in Bangalore; the Karnataka government shall appoint a Special Judge within a month; the trial shall start as soon as possible and will proceed on a day-to-day basis until completion; the Karnataka government, in consultation with the Chief Justice of the Karnataka High Court, shall appoint a senior lawyer having experience in criminal trials as the public prosecutor to conduct these cases; and the public prosecutor shall be at liberty to recall the witnesses who have resiled from their previous statements.

The Bench said that the public prosecutor could apply to have these witnesses declared hostile and seek permission to cross-examine them. He or she would be at liberty to apply that action be taken against some or all such witnesses for perjury. (At the Chennai Special Court, 64 of the 74 prosecution witnesses recalled for cross-examination turned hostile.) The Bench asked the Tamil Nadu government to ensure that all documents and records were transferred to the Special Court on its constitution and that witnesses were produced before it whenever they were required to be there. In case any witness asks for protection, the Karnataka government will provide him protection. The Judges directed that all the accused should personally appear in court on the day they were asked to do so.

IN his petition, Anbazhagan pointed out that after the AIADMK returned to power in May 2001, a new prosecutor was appointed and most of the prosecution witnesses were recalled for cross-examination and these witnesses turned hostile. So, the petitioner said, there was apprehension among the public that "the trial is neither free nor fair with the present prosecutor appointed by the State government conducting the trial in a manner where frequently the prosecution witnesses turn hostile, especially during cross-examination". He submitted that the police officers, who were under the control of the State government, could not be expected to prosecute the cases against Jayalalithaa diligently.

Anbazhagan said that after the trial resumed on November 7, 2002, as many as 76 prosecution witnesses were recalled for examination on the grounds that the respondents' counsel were busy with some other cases filed against the respondents. The petitioner alleged that the public prosecutor did not object to the witnesses being recalled. Out of the 76 witnesses, 64 resiled from their earlier statements. It was alleged that the public prosecutor did not make any effort to declare them hostile, to cross-examine them by using Section 154 (questions by party to his own witness) of the Indian Evidence Act, or to take action against them for perjury. The petitioner also alleged that Jayalalithaa's presence was dispensed with during her examination under Section 313 of the Code of Criminal Procedure (Cr.P.C.) and a questionnaire was sent to her and her reply was sent to the court.

Justices Variava and Sema said: "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 causing a reasonable apprehension of likelihood of failure of justice in the minds of the public at large. There is a strong indication that the process of justice is being subverted."

The fact that the recall of witnesses for cross-examination took place after the second respondent (Jayalalithaa) became the Chief Minister and the public prosecutor appointed by her government did not oppose the recall of witnesses "is indicative of how the judicial process is being subverted", the order said. The Bench remarked: "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 free from bias, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public and woe would be the rule of law."

The Judges criticised the grant of dispensation from personal appearance to Jayalalithaa in the cases, required under Section 313 of the Cr.P.C., which deals with the court's power to examine the accused. "Be you ever so high, the law is above you," the Bench wrote in its order. In its view, the grounds did not constitute mitigating circumstances to grant her dispensation from personal appearance. It observed: "To say the least, that was a ploy adopted to circumvent the due process of law."

The Bench added: "This authority makes it clear that the general rule remains that the accused must answer the questions by personally remaining present in the court. It is only in exceptional circumstances that the general rule can be departed/dispensed with. In this case, the 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 under Section 313 Cr.P.C... "

The Bench rejected the argument that since Anbazhagan was a political opponent of Jayalalithaa political motivations underlay the filing of petitions. It said: "This submission also has no force. In a democracy, the political opponents play an important role both inside and outside the House. They are the watchdogs of the government in power... 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... In the present case, in our view, the petitioner has raised many justifiable and reasonable apprehensions of miscarriage of justice and likelihood of bias, which would require our interference in exercise of our power under Section 406 Cr.P.C."

IN the first case, the DVAC filed the charge-sheet in a Special Court in Chennai on June 4, 1997. The charge-sheet named Jayalalithaa, her friend Sasikala Natarajan, Sasikala's nephew V.N. Sudhagaran and Sasikala's sister-in-law J. Ilavarasi as the first, second, third and fourth accused respectively in the case. The prosecution case was that Jayalalithaa and the remaining accused amassed assets valued at Rs.66.65 crores when Jayalalithaa was Chief Minister, that is, a public servant, from 1991 to 1996, which was disproportionate to their known sources of income. Hence the prosecution alleged that she was guilty of criminal misconduct.

The charge-sheet said that among the assets were palatial farmhouses and bungalows in and around Chennai, agricultural land at Oothukottai and Tirunelveli district, farmhouses in Hyderabad, a tea estate in the Nilgiris, industrial sheds in Chennai, jewellery, cash in bank accounts, and investments in financial firms. These were in Jayalalithaa's name or in the names of the other accused or firms in which Jayalalithaa was a partner (Frontline, June 27,1997).

Jayalalithaa was charged with offences under Sections 13(1)(e) read with 13(2) of the PCA. The other accused were charged with the same offences under the PCA and Section 109 (abetment) of the Indian Penal Code. Section 120-B (conspiracy) of the IPC was invoked against all the accused.

In the second case, the charge-sheet filed on March 23, 2001 said that the DVAC investigation through the Serious Fraud Office in the U.K. revealed that when she was Chief Minister, Jayalalithaa had entered into a criminal conspiracy with Dinakaran and funds were taken out of India through "other than regular banking channels" with his help. The money was used for buying demand drafts from banks for $300,000 in Sri Lanka, $3.58 million in Dubai, $1.59 million in Singapore, $4.53 million in Hong Kong and $476,200 in Malaysia.

Dinakaran, the charge-sheet said, had acquired three companies - Dipper Investments and Turnkey Industries, both registered in the British Virgin Islands, and Banyan Tree Enterprises. He transferred the funds to the bank accounts of these companies with the Barclays Bank, Sutton Branch, London, by depositing the demand drafts. In 1994, he arranged to convert the funds into about 6.83 million and transfer it to the account of a solicitor with the Natwest Bank, London. Another 1.32 million was transferred from a different source and the total, 8.15 million, was used to buy two hotels in the U.K - the Hopcrofts Holt at Oxfordshire and the Slaley Hall at Northumberland. (In Indian currency this amount works out to about Rs.39.56 crores.) The hotels were sold in 1998 for about Rs.121.53 crores. During the same period, Dinakaran did not have financial resources that would have enabled him to buy these assets, the charge-sheet said. Jayalalithaa was charged with offences under IPC Section 120-B read with PCA Sections 13(2) and 13(1)(e). Dinakaran faced charges under IPC Section 109 (punishment for abetment) read with PCA Sections 13(2) and 13(1)(e).

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