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CASE NO.:

Transfer Petition (crl.) 183 of 1999

Transfer Petition (crl.) 26 of 2000

PETITIONER:

ABDUL NAZAR MADANI

Vs.

RESPONDENT:

VS.

DATE OF JUDGMENT: 05/05/2000

BENCH:

K.T. Thomas & R.P. Sethi.

JUDGMENT:

SETHI,J.

L...I...T.......T.......T.......T.......T.......T.......T..J

Being some of the accused along with 152 others involved

in what is popularly known as Coimbatore-Bomb Blast Case,

the petitioners have prayed for the transfer of case PRC

No.54 of 1998 pending in the Court of FCJ Magistrate Court,

Coimbatore, Tamil Nadu entitled State vs. Abdul Nazir

Madani and others to any Sessions Court in the State of

Kerala allegedly on the ground of there being no possibility

of fair trial in the State of Tamil Nadu. It is alleged

that in the State of Tamil Nadu both Hindu and Muslim

fundamentalists are inciting trouble which has surcharged

the communal atmosphere in that State making the conduct of

the fair trial impossible. It is apprehended that the

witnesses will not be in a position to give evidence without

fear or favour. The petitioner Abdul Nazar Madani has

referred to some attack on him by RSS Cadres during August,

1992 as a consequence of which he sustained injuries which

ultimately resulted in the imputation of his right leg. He

has two children aged four and one year old and a wife from

a very poor family. He claims to be the founder of Al-amwar

islamic Madrass and Orphanage in Kollam District in Kerala

where about 280 orphans are stated to be studying for whose

day to day expenses an amount of Rs.2050/- is required which

is not possible to procure in his absence. He has further

claimed to be the leader of an organisation named "Islamic

Seva Sangh" which, according to him, was a social and

cultural organisation. The said organisation is stated to

have been declared as unlawful organisation in the State of

Kerala after the demolition of Babri Masjid. Thereafter the

said petitioner is stated to have organised a party named

Peoples Democratic Party. He submits that there exists a

feeling generally in Tamilnadu, Chennai and Coimbatore that

the petitioner was an ISI (Pakistani Intelligence Service)

agent who was responsible for the bomb blasts in the city of

Coimbatore in Tamilnadu. It is alleged that a popular

opinion appears to have been formed that no patriotic lawyer

from Tamilnadu would appear and plead the case of the

petitioners, as they thought it as anti-national and due to

intimidation by the Police Intelligence Wing, lawyers are

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not willing to take up their briefs. On their behalf some

advocates from Kerala are stated to have visited Coimbatore

and Chennai with a request to local lawyers there to

cooperate with the petitioners and conduct their cases but

all of them are stated to have refused. It is submitted

that being a well known political leader in the State of

Kerala, the respondents have falsely implicated petitioner

Madani, with others in the criminal cases.

In the counter affidavit filed on behalf of the

respondents it is submitted that the petitioners along with@@

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others are involved in Coimbatore B-1 Bazar Police Station@@

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CR No.151 of 1998 under Sections 120B, 302, 307, 449, 465,

468, 471, 212, 153A(1), 148, 149, 201, 109, 114 and 353 IPC,

Sections 3, 4 (b), 5, 6 of the Explosive Substances Act,

1908, Section 25(1-B)(a) of the Arms Act, 1959 and Section 4

of the Tamil Nadu Property (Prevention of Damage and Loss)

Act, 1992. The petitioner, Madani is stated to be the prime

accused concerned in the Serial Bomb Blast Case of

Coimbatore. It is alleged that on 14.2.1998 at about 4 p.m.

when Shri L.K. Advani, the then President of Bhartiya Janta

Party was to address election meeting at RS Puram,

Coimbatore City, the whole of the city and its suburbs were

hit by a series of 12 powerful bomb blasts killing 47

persons and injuring 218 persons apart from causing

extensive damage to the properties owned primarily by a

particular section of the society. The high intensity

bombs/Improvised Explosive Devices (IEDs) exploded all over

the city and its suburbs including near the venue of the

public meeting. The bomb blasts were targeted at some

specified congregations and their establishments. Shri L.K.

Advani was planned to be targeted by Suicide Squad members

armed with "instantaneous-type bombs" tied to their waists

and "throw-type bombs", which, however, could not

materialise since neither the members of the suicide squad

charged with the task could penetrate the police cardon and

reach near the public meeting place, nor Shri Advani was

available at the targeted place at the scheduled time due to

delay of his flight. The blasts had been planned and

executed by the muslim fundamentalists organisation named

"Al-Umma" headed by S.A. Basha, co- accused No.1 in the

case allegedly as a brutal answer/retaliation to the killing

of 18 muslims in communal riots and police firing and

extensive damages to the muslim properties following the

stabbing to death of a Traffic Police Constable Selvaraj at

Ukkadam, Coimbatore on 29.11.1997. There were some other

bomb blasts resulting in total the death of 58 persons

besides injuring 250 persons. Private and public properties

to the tune of Rs.4.37 crores is also stated to have been

damaged. The petitioner Madani has admitted to be the

founder leader of Islamic Seva Sangh and presently the

leader of Peoples Democratic party. He was arrested at

Kozhikode on 31.3.1998 in connection with Kozhikode Kasba PS

Cr.No.103/92 u/s 153-A and B IPC and in the case in

Cr.No.62/98 under Section 120(B) 212 IPC and under Section 3

read with Section 25(1)(a) Arms Act, 1959 and was remanded

to judicial custody and lodged in Central Prison, Cannanore,

Kerala State. His involvement in the Coimbatore Series Bomb

Blast case came to light from the alleged confession

statement made by accused Tajudeen @ Abu Mujahith, Accused

No.3 on 26th March, 1988. Other accused persons were

arrested from different places on different dates.

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Regarding allegations of the petitioners which have been

made basis for seeking transfer, the respondents have

submitted that it was not correct to state that there

existed feelings in Tamil Nadu in general or in Chennai and

Coimbature in particular, that no patriotic lawyer would

appear and plead for any of the accused persons in the Bomb

Blast cases. The submission of the petitioners is alleged

to be illusory. Advocates from Chennai, Vijayawada and

Coimbatore are stated to have already appeared for the

accused in the courts at Coimbature and also before the High

Court of Judicature at Chennai. A list of such advocates

has been annexed with the counter affidavit as Annexure A.

Regarding the existence of an alleged surcharged communal

atmosphere, it is submitted that there is presently no

communal tension in Tamil Nadu as communal harmony is

maintained in the State. The situation which was created in

the aftermath of series bomb blasts in February, 1998 has

since been completely defused and normalised due to the

strong measures taken by the fair and firm investigagion of

the case and by the law and order machinery. The atmosphere

in the State is stated to be peaceful and the trial is

assured to be conducted peacefully and smoothly.

The submission of the petitioners that they will not get

any assistance of lawyers of their choice due to rivalry of

religious fundamentalists is false and concocted,

deliberately put as a ground to stall and delay the progress

of the case. The proposed transfer would cause

inconvenience not only to the prosecution but also other co-

accused persons. Most of the witnesses are in Tamil Nadu

and to ensure the speedy trial of the case the prayer of the

petitioner is liable to be rejected. We have heard the

learned counsel for the parties and perused the records.

Appearing for the respondents Shri V.R. Reddy, learned

Senior Counsel has brought to our notice that charge-sheet

had been laid against 181 accused persons out of whom 8 have

died and 5 are still at large. Remaining 168 accused are

lodged in various prisons in the State of Tamil Nadu. Out

of 168 accused persons 154 are from Coimbatore, 7 from

Kerala 2 from Karnataka and 2 from Andhra Pradesh. Total

number of witnesses which are likely to be produced are 2333

out of whom 2083 are Tamil speaking witnesses. The

Government has constituted a special court exclusively for

the speedy trial of this case. Remodelling of the building

adjacent to the Central Prison, Coimbatore with the object

of accommodating the special court was completed in January,

2000 at a cost of Rs.22.40 lacs. Final report under Section

173 Cr.P.C. consisting of statements and documents which

runs into 16480 pages in Tamil has been submitted. Total

copies running into 37 lakh pages have been made and

supplied to the accused persons on 27th March, 2000. Shri

Thanikachalam, the Special Judge has taken charge on

7.4.2000. The learned counsel has also shown us the sketch

regarding the location of the Central Prison and the special

court specially constituted for the trial of bomb blast case

along with photographs of the specially made cells where all

the accused persons are intended to be accommodated during

the trial of the case. Dr.Singhvi, the learned senior

counsel appearing for the petitioner has drawn our attention

to various averments made in the petition particularly in

paras 16, 17 and 25 to urge that in view of existing

surcharged atmosphere it was not possible to have a fair

trial of the accused persons in the State of Tamil Nadu. In

the alternative he has submitted that if the transfer of the

case from the State of Tamil Nadu is not possible, the same

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be transferred to any court at Chennai, Thirunalveli, Salem

in the State of Tamil Nadu. Relying upon G.X Francis &

Ors.v. Banke Bihari Singh & Anr.[AIR 1958 SC 309], he has

argued that in view of the surcharged communal tension in

the area, the local atmosphere not being conducive to fair

and impartial trial, there existed good ground for the

transfer of the case to another State. In support of his

submissions he has referred to Annexure P-3, proceedings of

the Commissioner of Police, Coimbatore City which is an

order passed under the National Security Act dated 7.7.1998.

Relying upon the averments made therein to the effect that

"Coimbatore City has become a communally hypersensitive

place in the recent years in view of the communal riots. On

29.11.1997 at Ukkadam Traffic Point, Selvaraj, a Traffic

Police Constable on duty was brutally murdered by the muslim

youths belonging to Al-Umma. This resulted in the outburst

of a major communal harmony", the learned counsel has

submitted that in the interests of justice and for fair

trial of the case, the prayer made in the petition is

justified. The purpose of the criminal trial is to dispense

fair and impartial 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 of

the Cr.P.C. The apprehension of not getting a fair and

impartial inquiry or trial is required to be reasonable and

not imaginary based upon 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 be prescribed for deciding a

transfer petition which has always to be decided on the

basis of the facts of each case. Convenience of the 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 means the convenience of the

prosecution, other accused, the witnesses and the larger

interest of the society. In G.X. Francis's case (supra)

this Court felt that where public confidence in the fairness

of the trial is likely to be seriously undermined under the

circumstances of the case, transfer petition could be

allowed. On finding that "there is uniformity of testimony

from both sides about the nature of surcharged communal

tension in that area", the Court found that the local

atmosphere was not conducive to a fair and impartial trial

which justified a good ground for transfer. The court

rejected the contention of the petitioner therein regarding

the wild allegations made to the effect that no court in the

State of M.P. would be unbiased or impartial for dispensing

justice. In the peculiar facts and circumstances of the

case, the trial was transferred to an adjoining court. The

mere existence of a surcharged atmosphere without there

being proof of inability for holding fair and impartial

trial cannot be made a ground for transfer of a case.

Alleged communally surcharged atmosphere has to be

considered in the light of the accusations made and the

nature of the crime committed by the accused seeking

transfer of his case. It will be unsafe to hold that as and

when accusations are made regarding the existence of a

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surcharged communal atmosphere, the case should be

transferred from the area where existence of such surcharged

atmosphere is alleged. This Court had not concluded so

generally in Francis's case as has been argued before us on

behalf of the petitioner.

On facts also we find that petitioners in the instant

case have made wild and general allegations of the

surcharged atmosphere against a particular community of the

society in the whole of the State of Tamil Nadu. We are of

the opinion that in a secular, democratic country governed

by the rule of law, the appropriate State Government is

responsible for ensuring free, fair and impartial trial to

the accused notwithstanding the nature of accusations made

against them. Nothing has been placed on record nor was it

possible to allege that the whole of the State of Tamil Nadu

has become a communal State which cannot ensure a free, fair

and impartial trial against the petitioners. If such a

situation is shown to be existing, the State Government has

no constitutional and moral right to rule the State as it

would amount to perpetuating the continuance of a Government

against the provisions of the Constitution which ensures and

guarantees of a secular, democratic system of governance.

The respondent have very emphatically submitted and we have

no reason to doubt that the atmosphere in the State is not

communally surcharged to the extent that holding of criminal

trial against the petitioners and others is not possible in

any part of the State. Even if some communal tension is

shown to be in existence as perhaps is likely to be in view

of the nature of offence committed and the accusations made

against the petitioner and other accused persons, it is the

obligation of the State Government to ensure the safety and

security of the accused persons to stand free and impartial

trial. It is true that in the detention order dated

7.7.1998 against the petitioner, the Commissioner of Police

has mentioned that on account of the communal riots the

Coimbatore City had become communally hypersensitive but

those averments cannot be stretched to hold firstly that the

whole State of Tamil Nadu has become communally surcharged

and secondly that Coimbatore City itself continues to be so

communally hypersensitive till date that the trial against

the petitioners and other accused persons is not likely to

be free, fair and impartial. In the counter affidavit the

respondents have specifically stated:

"With regard to the averments in Ground (A) of the

petition, it is submitted that it is not correct to state

that the communal tension is prevailing in the State of

Tamil Nadu and both Muslim and Hindu fundamentalist are

inciting troubles which will lead to communal tension is

presently no communal tension in Tamil Nadu and communal

harmony is maintained in the State. The situation that was

created in the aftermath of the serial bomb blasts of

February, 1998, has been since completely defused and

normalised due to the strong measures taken by the fair and

firm investigation of the case and by the Law & Order

machinery. The atmosphere in the State is peaceful. Hence

the trial will be conducted peacefully and smoothly."

After perusing Annexure A we do not find any substance

in the submission of the petitioners that as they and other

accused persons are not likely to get proper legal

assistance, the case should be transferred to some other

State. We are also satisfied that the petitioners and other

accused are adequately represented in the court and even if

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not, they can get the legal services from Palghat in Kerala

where they want the case to be transferred. It may be

noticed that Palghat is approximately 40 kilometers from

Coimbatore and it is not difficult for any number of

advocates to travel or stay at Coimbatore during the conduct

of the trial. We are sure that if any advocate from outside

the State of Tamil Nadu appears for any of the accused, the

State Government shall provide him appropriate security to

ensure him the discharge of his professional obligation

towards the accused persons facing the trial in the case

filed against them.

Dr.Singhvi, the learned counsel appearing for the

petitioners alternatively submitted that even if this Court

does not find any ground to transfer the case of the

petitioner from the State of Tamil Nadu to any other State,

particularly the State of Kerala, the trial of the case be

ordered to be conducted at some other place in the State of

Tamil Nadu preferably at Chennai, Thirunalveli or Salem. We

are not satisfied with this submission also as we are of the

opinion that at present there exists conducive atmosphere at

Coimbatore where free, fair and impartial trial is possible

to be conducted against the accused persons. This Court

cannot loose sight of the fact that despite the petitioners

there are 152 other accused persons out of which more than

150 are from Coimbatore and the State Government have made

elaborate arrangements for their stay in the Central Prison,

Coimbatore by making provision of having specified cells for

the accused persons. We cannot forget the expenses of

Rs.22.40 lacs incurred by the State Government for re-

modelling the building adjacent to the Central Prison to

accommodate the special court for which even a judicial

officer has been appointed who is stated to have taken

charge on 7.4.2000. Lakhs of rupees are shown to have been

spent for the conduct of smooth, speedy, fair and impartial

trial. The transfer of the case, at this stage, is not only

against the interests of the prosecution but also against

the interests of the other accused persons, the prosecution

witnesses and the convenience of all concerned in the

matter. We are satisfied that a fair and speedy trial of

the case is possible at Coimbatore and the accused persons

including the petitioners need not have any cause for

apprehension.

In this regard we have also perused the figures

furnished to us showing the authorised accommodation and the

actual population in the lock-ups in the State of Tamil

Nadu. Whereas in Coimbatore Central Prison the authorised

accommodation is for 2208 persons and the present lock-up

strength is only 1998. In Chennai the position is otherwise

as against authorised accommodation of 1419 persons 1765

have been and are being accommodated. We cannot loose sight

of the statement made on behalf of the respondents that in

Coimbatore Central Prison separate cells have been renovated

for accommodation of 168 accused persons in the instant case

and such a facility is not available elsewhere in any other

prison in that State.

The present petitions which are totally misconceived are

hereby dismissed with a direction to the trial court to

expedite the trial and if possible hold the same on day to

day basis so that cause of justice is achieved without any

further delay.

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