Selvi J Jayalalithaa v. State Represented by the Superintendent of Police, DV & AC, Chennai
2010-11-23
SUBHASH B.ADI
body2010
DigiLaw.ai
Judgment :- Criminal Petition No.3766/2010 is by the Superintendent of Police, Special Investigation Cell, Chennai represented by Special Public Prosecutor, Bangalore. Criminal Petition No.3748/2010 is by accused No.1. 2. These two criminal petitions are directed against the order dated 22nd July 2010 passed by the Special Judge & 36th Addl.Sessions Judge, Bangalore, in Special C.C.No.208/2004. 3. Petitioner in Criminal Petition No.3748/2010 has sought for quashing of portion of the order dated 22nd July 2010 on I.A.No.396 passed in Special C.C.No.208/2004. Prayer reads as under: “Hence, the petitioner/A1 most humbly prays that this Hon’ble Court may be pleased to call for the entire records in I.A.No.396 of Special C.C.No.208 of 2004 Special Judge & 36th Additional Sessions Judge (CCH-37)at Bangalore and to quash or set aside the order dated 22.7.2010 in I.A.No.396 of Special C.C.No.208 of 2004 Special Judge & 36th Addl.Sessions Judge (CCH-37) at Bangalore except the portion giving “liberty to the accused to rectify the defects with the help of Experts and direction to the accused to furnish the names of the Experts” and to allow the I.A.396 of Special C.C.No.208 of 2004 of the above said Court and to order scrapping of available defective translated version of entire evidence and to order de novo translation of the entire evidence (both oral and documentary) of this case from Tamil to English in the manner known to law and to order to supply of the copy of the true translation of evidence to the petitioner/A1 and grant such other or further orders as this Hon’ble Court may deem fit and proper in the circumstances of the case and thus render justice.” 4. Petitioner in Criminal Petition No.3766/2010 has sought for prayer as under: (a) set aside the following directions: “If really the portion shown in Column No.4 of the Annexures, which are filed along with the objections of A-1 and A-3 are defective translated versions, then the accused are at liberty to get it rectify either by calling the persons, who are connected to the said translation work or to refer the same to some other Expert, who is well versed in both the languages i.e., Tamil and English.
To avoid further complications, the name of the Expert shall be chosen by both the sides in the event if the accused prefers to get the help of the Experts to rectify the alleged defects or mistakes in translation version in English. Accordingly I.A.No.396 is disposed of and the written objections filed by A-1 and A-3 are taken on Records.” issued by the Special Judge and XXXVI Additional Sessions Judge, Bangalore City Learned Magistrate in the order dated 22.7.2010 passed in I.A.No.396 in Spl.CC No.208/2004 and produced hereto as Annexure-A. (b) Further direct the speedy disposal of the proceedings in C.C.No.208/2004 pending on the file of the Special Judge and XXXVI Addl.Sessions Judge, Bangalore City as per the directions of the Hon’ble Supreme Court dated 18/11/2003 passed in Transfer Petition (Crl) No.77-78/2003.” 5. Parties are referred as per their ranking before the trial court. 6. Brief facts leading to filing of these criminal petitions are that, between 1991 to 1996 the accused No.1 was the Chief Minister of State of Tamil Nadu, she represented a political party by name ‘All India Anna D.M.K. (AIADMK)’. She was defeated in general election in 1996 and another political party by name ‘D.M.K.’ was voted to power. Complaint was filed alleging that, the accused No.1 committed offence by abusing the official position. On the basis of the complaint, and on investigation, accused No.1 and others were charge sheeted for an offence punishable under Section 120-B IPC read with Section 13(2) read with Section 13(1) clause (e) of the Prevention of Corruption Act on the allegation of accumulation of wealth of Rs.66.65 crores disproportionate to the known source of income of the accused No.1, on filing of the charge sheet, the jurisdictional Court took cognizance and a criminal case was registered in C.C.No.7/1997 against accused No.1 and others. Another case was registered for offence punishable under Section 120-B of IPC read with Section 13 sub-section (2) further read with Section 13 clause (e) of the Prevention of Corruption Act for acquisition and possession of pecuniary resources and property outside India disproportionate to the known source of income by resorting to clandestine transfer of funds belonging to the accused No.1 with the help of accused No.2 therein from India to outside country by violating the provisions of Foreign Exchange Regulation Act. In this regard, another criminal case was registered in C.C.No.2/2001. 7.
In this regard, another criminal case was registered in C.C.No.2/2001. 7. During the course of the trial, as many as 250 prosecution witnesses were examined and when some of the witnesses remained to be examined, accused No.1 once again got elected by absolute majority to the legislative assembly and she was unanimously chosen as the leader of the House. However, as electing her was challenged, on 21.9.2001 she resigned to the said office and nominated another person as the Chief Minister. Once again she was elected in a by-election held on 21.2.2002 and once again she was sworn in as the Chief Minister on 2.3.2002. In view of change in the Government, the Public Prosecutor appearing in C.C.Nos.7/1997 and 2/2001 resigned and another Public Prosecutor was appointed, the trial of C.C.No.7/1997 again begun on 7.11.2002 and as many as 76 witnesses were recalled and out of 76 prosecution witnesses, 64 prosecution witnesses resiled from their previous statement in examination-in-chief. However, the Public Prosecutor did not make any attempt to seek them declared as hostile. The appearance of accused No.1 was also dispensed to give her reply statement under Section 313 of Cr.P.C. and instead, a questionnaire was sent to her and her reply was secured in absentia. 8. In the backdrop of these developments, one Mr.K.Anbazhagan, person from a rival political party moved a Transfer Petition (Criminal) 77-78/2003 before the Supreme Court interalia seeking transfer of C.C.No.7/1997 and 2/2001 from the State of Tamil Nadu to a court of equal and competent jurisdiction of any other State. The Supreme Court after hearing, considered the case on the touchstone of the decisions of the Apex Court, held that, the petitioner therein has made out a case, and observed that, the public confidence in the fairness of trial is being seriously undermined and great prejudice appears to have been caused to the prosecution which could culminate in grave miscarriage of justice. 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 the confidence of the public in the system and woe would be the rule of law.
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 the confidence of the public in the system and woe would be the rule of law. With these observations, the Supreme Court allowed the Criminal Petitions and the criminal cases were transferred. 9. It is in the light of the directions issued by the Apex Court in a transfer petition, the cases pending on the file of Special Judge, Tamil Nadu were transferred to State of Karnataka and numbered as Special C.C.Nos.208/2004 and 209/2004. The order sheet of the Special Court dated 25.10.2004 reads as under: “The Hon’ble Supreme Court had directed for translation of Tamil records into English. Accordingly, the Government of Karnataka issued an order deputing 20 professors of Government Colleges for the purpose of translation. Ten translators amongst the deputed persons joined today and have started the translation work. No information regarding appointment of P.P. Put up for after the appearance of P.P.” In these criminal cases, the State was represented by Special Public Prosecutor Sri.B.V.Acharya assisted by Sri.S.J.Choutha and accused Nos.1, 2 and 4 represented by Advocate one John, accused No.3 was represented by G.Saravana Kumar. It appears that, by 28th March 2005, the translated copies of Tamil depositions and the documents in English were handed over to each of the accused and to the prosecution. The Special Judge passed an order for clubbing of both the cases i.e., Special C.C.No.208/2004 and Special C.C.No.209/2004. However, as against the order clubbing, K.Anbazhagan – petitioner in the transfer petition filed a Special Leave petition No.3828/2005 before the Apex Court, questioning the clubbing of the cases. The Apex Court by order dated 5.8.2005 stayed the proceedings on the file of the Special Court. Later, the State made an application before the Special Court for withdrawal of the prosecution in C.C.No.209/2004, however, the said application was rejected and, as against which the matter came up before this Court in Criminal Revision Petition No.938/2009 and by order dated 7.12.2009, this Court permitted the prosecution to withdraw Special C.C.No.209/2004. The Apex Court considering the withdrawal of prosecution disposed of the S.L.P.No.3828/2005 by order dated 30th January 2010, which was filed against the clubbing of the cases.
The Apex Court considering the withdrawal of prosecution disposed of the S.L.P.No.3828/2005 by order dated 30th January 2010, which was filed against the clubbing of the cases. On the same day, before the Special Judge, the prosecution filed an application in I.A.No.321 and so also accused filed I.A.No.322. I.A.No.321 was for recalling of the witnesses and I.A.No.322 was for summoning of documents. The trial judge by order dated 25.2.2010 allowed I.A.No.321 for recalling the witnesses and rejected I.A.No.322. Accordingly, by order dated 3.3.2010, he issued summons to 42 prosecution witnesses for appearance on various dates between 18.3.2010 and 26.3.2010. Same day accused filed I.A.Nos.340 and 341, one for service of summons through RPAD and another for directions. Thereafter, accused filed another application in I.A.No.346 seeking modification of the order dated 3.3.2010. I.A.Nos.340, 341 and 346 were heard and by common order dated 5.3.2010, I.A.Nos.340, 341 and 346 were dismissed. 10. However, the accused No.1 filed Criminal Petition No.79/2010 challenging the taking cognizance by the court by order dated 5.6.1997. This Court by order dated 10.3.2010 dismissed the said criminal petition and as against the same, accused moved the Supreme Court in S.L.P.No.2248/2010, however, the Supreme Court dismissed the same with direction to reschedule dates for trial. In pursuance of the direction issued by the Supreme Court in S.L.P.No.2248/2010, the trial court re-scheduled the date and fixed the same from 3.5.2010. Again the accused filed another application in I.A.No.359 seeking dropping of entire proceedings on the ground that the investigation conducted was illegal and the said application was dismissed by the trial court. It appears that the accused No.1 directly filed S.L.P.No.3836/2010 against the said order before the Apex Court, however, the said S.L.P. was dismissed as withdrawn as the petitioner sought for withdrawal of the S.L.P. with liberty to move the High Court under Section 482 of the Code of Criminal Procedure. 11. It is thereafter, accused No.1 requested the trial court for supply of three sets of copies of the translated copies running into 70,000 pages each set. Accordingly, three sets of copies were furnished to accused No.1 on 26.6.2010 and the court also issued summons to the witnesses. However, the accused No.1 filed one more I.A. in I.A.No.396, seeking scrapping of English translation and for making denovo translation. Accused No.3 also filed similar application.
Accordingly, three sets of copies were furnished to accused No.1 on 26.6.2010 and the court also issued summons to the witnesses. However, the accused No.1 filed one more I.A. in I.A.No.396, seeking scrapping of English translation and for making denovo translation. Accused No.3 also filed similar application. Trial Court after hearing by its order dated 22.7.2010 rejected the said I.A.No.396 with certain directions and re-scheduled the trial by fixing the dates as 6.8.2010, 9.8.2010, 11.8.2010 and 13.8.2010. It is against the said order dated 22.7.2010, rejecting I.A.No.396 with certain directions, accused No.1 has filed Criminal Petition No.3748/2010 for setting aside the order and for allowing the I.A.No.396 and Special Public Prosecutor has also filed Criminal Petition No.3766/2010 against the issue of direction. 12. Sri.B.V.Acharya, learned Special Public Prosecutor and Senior Counsel submitted that, the accused No.1 and other accused have been charge sheeted for alleged accumulation of wealth by accused No.1 disproportionate to her known source of income between 1.1.1991 to 30.4.1995 i.e., during the period when the accused No.1 was the Chief Minister of Tamil Nadu. The offence alleged are one punishable under Section 13(1) clause (e) read with Section 13(2) of the Prevention of Corruption Act read with Section 120-B read with Section 109 of IPC. The Apex Court in the case of K.ANBAZHAGAN –vs- SUPERINTENDENT OF POLICE AND OTHERS reported in (2004) 3 SCC 767 (Transfer case) while transferring the matter has issued directions, amongst other that the trial before the Special Judge shall commence as soon as possible and will then proceed from day to day till completion. The Special Judge to proceed with the case from such stage as he deems fit and proper in accordance with law. Liberty was given to the Public Prosecutor to apply for recalling the witnesses, who have resiled from their previous statement. He further submitted that, the Apex Court taking into consideration all the circumstances has issued a direction to the Special Judge to go on with the trial on day to day basis. The charge sheet is filed in 1997 and even in 2010, the trial has not been progressed. 13. As regards to the request of the accused No.1 for scrapping of English translation and prepare denovo translation, he submitted that, such request is made only with intention to protract the trial for the political advantage.
The charge sheet is filed in 1997 and even in 2010, the trial has not been progressed. 13. As regards to the request of the accused No.1 for scrapping of English translation and prepare denovo translation, he submitted that, such request is made only with intention to protract the trial for the political advantage. The translated copies have been filed been filed and served on the accused on 28.3.2005 and since then, at no point of time, any defect in the translation has been pointed out. Even if there is any discrepancy or correction in the translation, it can be corrected if the mistakes are pointed out by the accused, but that itself is not a ground to scrap the entire translation, which runs into 70,000 pages. There may be some minor defects, such defects can be corrected when the matter is taken up for hearing, but asking to scrap the entire translation is nothing but to stop the trial court from proceeding with trial. There is no bonafide in the request. Prosecution is not against the correction of mistake in the translation nor prosecution would object for correction of any mistake in the translation, if pointed out. The translation is done by the Professors, who are experts in the filed, there is no reason to scrap the same. Asking for denovo translation is totally unwarranted in the facts and circumstances of the case. 14. Even the accused No.1 in this Criminal Petition has not pointed out as to what are the mistakes. Learned Senior Counsel submitted that, if the mistakes in the translation are pointed out, the same will be corrected. The offence is committed during the period from 1991 to 1996 and charge sheet is filed in 1997 and since then, for one or other reason, the trial is delayed. He submitted that, objection to the translation is remedial, which can be corrected even at the stage of the argument, same will not prejudice the case of the accused and some mistake in the translation, should not be a ground to delay the trial. When the evidence recorded is already on record, the correction in the translation could be done any time and will not have any effect on the further trial. 15.
When the evidence recorded is already on record, the correction in the translation could be done any time and will not have any effect on the further trial. 15. He further submitted that, from amongst 276 witnesses, prosecution has sought for summoning only 41 witnesses for cross-examination and which would be done in accordance with the procedure contemplated under the provisions of Section 277 and 278 of Cr.P.C. read with Karnataka Criminal Rules of Practice. Insofar as the evidence of 41 witnesses sought to be recalled, learned Special P.P. submitted that, if any name of the translator is suggested, who are easily available in Karnataka, he has no objection to accept such person as a Translator for recording the evidence of 41 witnesses. 16. Per contra, Sri.Udaya Holla, learned Senior Counsel appearing for accused No.1 submitted that, criminal case was registered in Tamil Nadu, the alleged offence is committed in Tamil Nadu, the witnesses are from Tamil Nadu and most of the documents produced are in Tamil, the language of the court in Tamil Nadu is Tamil, the depositions of the witnesses have been recorded in Tamil. However, in view of the order by the Apex Court for transfer of criminal cases from Tamil Nadu to State of Karnataka, the trial is being conducted in Karnataka. The language of the court in Karnataka is Kannada and not Tamil, the learned Trial Judge does not know Tamil language, even the Special Prosecutor and defence lawyers do not know Tamil, the official language of the trial court being Kannada and language of the witnesses being Tamil, they will not understand Kannada language and if their version is translated into English, it has to be done only by recalling all such witnesses and their evidence has to be recorded in accordance with the provisions of Section 277 clause (b) of Cr.P.C. The evidence already on record being in Tamil, and the court will be only looking into the translated deposition in English, in such a case, if the translation is not done in the presence of the witnesses, the translated version cannot be relied and it would defeat the very object of fair trial.
In this regard, he relied on the provisions of Section 278 sub-section (3) of Cr.P.C. and submitted that, since the witnesses do not understand the English language or the Kannada language and their evidence, if not interpreted in the language known to them, it would defeat the very purpose of recording the evidence as well as the very purpose of conducting a trial on the basis of such evidence. As such, the interpretation of the evidence once again in the presence of the witnesses is necessary. In this regard, he relied on a judgment reported in AIR 1975 SC 915 in the matter of RAMCHANDRA KESHAV ADKE (DEAD) BY LRS. –vs- GOVIND JOTI CHAVARE AND OTHERS and submitted that, if power is given to do certain things in a particular way, the thing must be done in that way and not at all and other methods of performance are necessarily forbidden. He further relied on the decision reported in (2007) 5 SCC 85 in the matter of KUNWAR PAL SINGH (DEAD) BY LRS. –vs- STATE OF U.P. AND OTHERS and submitted that, where any statutory provision provides a particular manner for doing a particular act, that thing or act must be done in accordance with the manner prescribed therefor in the Act. When law requires that the deposition of the witnesses to be recorded in the language of the court and if the language of the court is different from the language of the witnesses, the deposition of the witnesses must be translated in the presence of the witnesses. 17. As regard to the conduct of the trial is concerned, the Apex Court has directed the trial court to fix the calendar of the trial according to the convenience of the parties and submitted that, for the fair and proper trial, accurate translation of the deposition is must. Even small mistake may become fatal to the accused. He also relied on another judgment reported in AIR 1986 SC 1455 in the matter of G.K.DUDANI AND OTHERS – vs- S.D.SHARMA AND OTHERS and submitted that, everybody including High Court have to obey the orders of the Apex Court and there is no way to avoid the same.
Even small mistake may become fatal to the accused. He also relied on another judgment reported in AIR 1986 SC 1455 in the matter of G.K.DUDANI AND OTHERS – vs- S.D.SHARMA AND OTHERS and submitted that, everybody including High Court have to obey the orders of the Apex Court and there is no way to avoid the same. He relied on this decision to submit that, day to day trial must mean fair trial, fairness of procedure and the procedure requires that the court should record correct and accurate translation of the evidence in accordance with law. He also relied on decision reported in AIR 1956 SC 116 in the matter of WILLIE (WILLIAM) SLANEY –vs- STATE OF MADHYA PRADESH, which reads as under: “as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions.” He also relied on another decision reported in (1999) 7 SCC 467 in the matter of SHIV KUMAR –vs- HUKAM CHAND AND ANOTHER and submitted that, the expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If the accused is entitled to any legitimate benefit during trial, the Public Prosecutor should not scuttle or conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. He further relied on a decision reported in 2004(3) SCC 767 in K.ANBAZHAGAN’s case (supra) and submitted that, the Apex Court in the transfer of this case from Tamil Nadu to Karnataka has observed at para-30 that, free and fair trial is sine qua non of Article 21 of the Constitution of India and it is not whether the party is actually biased or not, but question is whether the circumstances are such that there is a reasonable apprehension in the mind of the party that it is likely to cause bias.
He submitted that, in order to have a free and fair trial to create confidence in the party as well as in the public, the court must adopt the procedure, which is free, fair and just and not to circumvent. 18. He relied on Rule 8 of the Karnataka Criminal Rules of Practice and in conformity with Section 277 clause (c) and 278 sub-section (3) of Cr.P.C., the evidence is required to be recorded. When a witness is in the box and the language of the witness is other than the language of the court, his deposition should be translated by the translator appointed by the court in accordance with Rule 8 of the Criminal Rules of Practice. 19. He also submitted that, in the petition filed by accused No.1, accused No.1 has produced at Annexure-I, the deposition in Tamil language and a comparative chart at Annexure-II in respect of some of the witnesses pointing out the mistakes in the translation and if the translated deposition is relied and appreciated, certainly it will affect the interest of the accused, as the translation is not only imperfect but it is not a true translation of the deposition and if that deposition is relied, it would necessarily defeat the free and fail trial. 20. Sri.Navaneetha Krishnan, learned Advocate for accused No.1 submitted that, the original evidence is in Tamil and is not incriminating, however, the English translation is incriminating and in this case, accused No.1 has pointed out the defects in the deposition of as many as 18 witnesses for the purpose of this case. He submitted that, the translation is not done by the expert and if the said translated deposition is relied, as the court does not understand the Tamil language and is not the language of the court, it would prejudice the case of the accused. He relied on a decision reported in 2010(6) SCC 1 in the matter of SIDHARTHA VASHISHT ALIAS MANU SHARMA –vs- STATE (NCT OF DELHI) and submitted that, the court must ensure that the Prosecutor is doing his duties to the utmost level of efficiency and fair play and submitted that the Apex Court in the said judgment has relied on the reported decision in 2004 Vol.4 SCC 158 in the matter of ZAHIRA HABIBULLA H.SHEIKH –vs- STATE OF GUJARAT wherein it is held as under: “43.
The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of Evidence Act confer vast and wide powers on Presiding Officers of court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e, truth is arrived at. This becomes more necessary before the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.” The Apex Court has observed that, a Public Prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the court for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the Prosecutor to be lax in any of his duties as against the accused. The court must ensure that the Prosecutor is doing his duties to the utmost level of efficiency and fair play. 21. He further relied on another judgment reported in 2010 (2) SCC (Criminal) 904 and submitted that, the entire translation is one without jurisdiction. 22. Sri. Venkata Reddy, learned Counsel appearing for accused No.2 submitted that, accused No.2 is not a public servant and the offences alleged are one punishable under Section 13(1) clause (e) read with Section 13 sub-section (2) of the Prevention of Corruption Act read with Sections 109 and 120-B of IPC.
22. Sri. Venkata Reddy, learned Counsel appearing for accused No.2 submitted that, accused No.2 is not a public servant and the offences alleged are one punishable under Section 13(1) clause (e) read with Section 13 sub-section (2) of the Prevention of Corruption Act read with Sections 109 and 120-B of IPC. He further submitted that, such charge cannot be framed against accused No.2, as the allegation is one of abetment. He also submitted that, when an evidence is partly recorded by one Magistrate, the succeeding Magistrate may not act on the said evidence in terms of Section 326 of Cr.P.C. The Apex Court has not directed as to what procedure to be adopted by Special Judge, as such, if the evidence is recorded by the court at Tamil Nadu in the language of that State, that will not become an evidence of the court in Karnataka, as such, it cannot be treated as an evidence on record. He also relied on a judgment reported in 2004(3) SCC 767 (supra) i.e., transfer case at para-34 and submitted that, there is no direction to adopt particular procedure. Learned Special Judge has been directed to proceed from such stage, as he deems fit and proper in accordance with law. In accordance with law means, the procedure contemplated under the Criminal Rules of Practice in the State of Karnataka. He also relied on Rule 8 of the Karnataka Criminal Rules of Practice and submitted that, the evidence recorded in Tamil is required to be translated by the interpreter in accordance with Rule 8 of the Criminal Rules of Practice. 23. Sri.A.H.Bhagawan, learned Counsel appearing for another accused submitted that, the transfer of case from one State to another State makes total change, the evidence recorded at Tamil Nadu cannot be regarded as an evidence recorded in Karnataka, as the court is required to record the evidence in the language of the court in Karnataka. The language of the court in Karnataka being Kannada, the evidence recorded by the court at Tamil Nadu cannot be regarded as an evidence recorded in Karnataka.
The language of the court in Karnataka being Kannada, the evidence recorded by the court at Tamil Nadu cannot be regarded as an evidence recorded in Karnataka. He further submitted that, the learned trial Judge has to find out as to what is the incriminating statement and for that, he has to read the evidence and if the evidence is in Tamil language, he cannot rely on the translation to find out the incriminating material against the accused, and the accused will not be in a position to answer the same, the evidence is not for the benefit of the Prosecutor or the defence Advocate, but it is for the benefit of the court and if the translated version of the evidence is considered, it will not be beneficial to the party nor beneficial to the court nor such trial could be construed as proper and fair trial in view of the transfer of case from one State to another State. 24. In reply, Sri.B.V.Acharya, learned Special Public Prosecutor submitted that, translation of the evidence runs to 70,000 pages and it has been prepared by the experts. They are Professors and translation having been served in 2005, raising objection in 2010 is untenable. He also submitted that, if there are any defects or omission or requires addition in translation and if it is pointed out, prosecution is not reluctant to accept the same. Prosecution wants fair and proper trial, prosecution is neither interested in conviction or acquittal, but trial must go on as directed by the Apex Court, however, without any justification, trial should not be hindered. He submitted that, the provisions of Sections 277 and 278 of Cr.P.C. are not applicable to the facts and circumstances of the case. 25. In the light of the submissions made by the learned Counsels on both the sides, the point that arises for consideration is: Whether the evidence recorded by the Special Court constituted by Tamil Nadu Government in the trial of C.C.Nos.7/1997 and 2/2001 now numbered as Special C.C.Nos.208/2004 and 209/2004 require to be scrapped in view of the transfer of the cases from the State of Tamil Nadu to State of Karnataka, as the evidence recorded is not in the language of the court in Karnataka? 26.
26. The facts, which are not in dispute, are that, two criminal cases were registered in C.C.Nos.7/1997 and 2/2001 by the XI Addl.Special Judge (Special Court No.1), Chennai for an offence punishable under Section 120-B of IPC read with Section 13 sub-section (2) further read with Section 13(1)(e) of the Prevention of Corruption Act against the accused in respective cases. Accused No.1 was the Chief Minister of the Tamil Nadu between 1991 and 1996 from 21.2.2002 onwards till the next government was formed. Upto August 2000, prosecution had examined as many as 250 witnesses before the Special Court at Chennai. One of the rival political party person by name K.Anbazhagan moved the Apex Court for transfer of the cases from the State of Tamil Nadu to any other State on the ground that the accused No.1 is the Chief Minister and the witnesses examined were recalled and after recall, the said witnesses have resiled from their previous statements. Even reply to Section 313 of Cr.P.C. questionnaire, the accused No.1 had not personally appeared before the court to reply, in turn, her reply was secured in absentia. The Apex Court considering the gravity of the matter, involvement of the political parties and also considering the evidence of the witnesses recorded by the trial court, found that, for the free and fair trial, which is sine qua non under Article 21 of the Constitution, to do justice and to keep the public confidence in the system, ordered for transfer of both the cases from the State of Tamil Nadu to State of Karnataka interalia observing as under: “30. 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 staking the confidence of the public in the system and was 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.
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 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.” and accordingly, passed an order transferring C.C.Nos.7/1997 and 2/2001 pending on the file of XI Addl.Special Judge (Special Court No.1), Chennai in the State of Tamil Nadu to State of Karnataka. While passing the order of transfer, it also issued directions, which read as under: “34. In the result, we deem it expedient for the ends of justice to allow these petitions. The only point that remains to be considered now is to which State the cases should be transferred. We are of the view that for the convenience of the parties the State of Karnataka would be most convenient due to its nearness to Tamil Nadu. Accordingly, the petitions are allowed. CC No.7 of 1997 and CC No.2 of 2001 pending on the file of the XI Additional Sessions Judge (Special Court No.1), Chennai in the State of Tamil Nadu shall stand transferred with the following directions: (a) The State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka 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 Additional Sessions Judge (Special Court No.1), Chennai in the State of Tamil Nadu shall stand transferred. The Special Court to have its sitting in Bangalore. (b) As the matter is pending since 1997 the State of Karnataka shall appoint a Special Judge within a month from the date of receipt of this order and the trail before the Special Judge shall commence as soon as possible and will then proceed from day to day till completion. (c) The State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall appoint a senior lawyer having experience in criminal trials as Public Prosecutor to conduct these cases.
(c) The State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka shall appoint a senior lawyer having experience in criminal trials as Public Prosecutor to conduct these cases. The Public Prosecutor so appointed shall be entitle to assistance of another lawyer of his choice. The fees and all other expenses of the Public Prosecutor and the Assistant shall be paid by the State of Karnataka 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. (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 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 be allowed. The Public Prosecutor will also be at liberty to apply that action in perjury to be taken against some or all such witnesses. Any 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 attend that court. (h) In case any witness asks for protection, the State of Karnataka shall provide protection to that witness. (i) The Special Judge shall after completion of evidence put to all the 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 of the Criminal Procedure Code.” 27.
(i) The Special Judge shall after completion of evidence put to all the 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 of the Criminal Procedure Code.” 27. From the directions issued by the Apex Court, it is clear that the transfer of the cases should be effected within one month from the date of receipt of the copy of the order and the trial shall commence as soon as possible and will then proceed from day to day till the completion. The State of Karnataka was directed to appoint Senior lawyer having an experience in criminal trials in consultation with the Chief Justice of the High Court of Karnataka to be appointed as Public Prosecutor to conduct the cases and said senior lawyer was permitted to avail the assistance of another lawyer of his choice. The Special Judge so appointed was directed to proceed with the case from such stage, as he deems fit and proper in accordance with law. The State of Tamil Nadu was directed to ensure that all the documents and the records are forthwith transferred to the Special Court on its constitution. Liberty was given to the Public Prosecutor to apply for recalling of the witnesses for examination and the Special Judge was also directed that after completion of recording of the evidence, he shall put to all the accused all relevant evidence and documents appearing against them while recording the statement under Section 313 of Cr.P.C. and the accused shall personally appear before the court on the date they are called upon to do so. 28. Thus, it is clear that, Special Judge was permitted to continue the proceedings from such stage, as he deems fit.
28. Thus, it is clear that, Special Judge was permitted to continue the proceedings from such stage, as he deems fit. It is not in dispute that, by the time the transfer was effected, the evidence of as many as 276 witnesses were recorded and if the prosecution is not seeking recalling of the witnesses and if there are no other witnesses to be examined, the next stage was only to record the statement of accused under Section 313 of Cr.P.C. In this case, after the order of transfer passed by the Supreme Court on 18th November 2003, Criminal Misc, Petition Nos.11439-40/2003 were filed seeking modification of the order dated 18th November 2003 interalia on the ground that, there is surcharged atmosphere and large scale agitation by a section of the people of Karnataka targeting the applicant (accused No.1) as well as Tamil speaking people and on account of the highly sensitive Cauvery water dispute, the trial if allowed to be continued in the State of Karnataka, the personal security of the applicant would be seriously jeopardized and free and fair trial would not be possible. Another ground was that, kidnapping of Kannada matinee idol Dr.Raj Kumar by Veerappan and in this constraint relationship, a fair trial as envisaged under Article 21 of the Constitution may not be possible. Against the said application, State of Karnataka filed a counter affidavit sworn to by the Additional Chief Secretary. 29. Apex Court by its order dated 17th February 2004 disposed of the Criminal Miscellaneous Petitions by recording the statement made on behalf of the State of Karnataka in its counter affidavit ensuring a fair trial and security to the accused and also ensuring all necessary assistance for the free and fair trial. The Apex Court placed on record the relevant statement in the counter affidavit and rejected the said application. While doing so, the Apex Court reiterated the directions already issued in the order of transfer and observed as under: “In our view, the aforesaid directions have adequately taken care of the security of the witnesses and others.” The State of Karnataka in its counter affidavit at para-9 had undertaken to arrange for official translators for translation of Tamil documents and witnesses’ depositions.
The said para-9 of the counter affidavit was reiterated by the Apex Court in its order, which reads as under: “This Hon’ble Court when it made its order was aware of the fact that many of the documents would be in Tamil. Karnataka has arranged for Official Translators so that the translation of the Tamil documents and witnesses’ depositions can be effectively done.” In the light of the undertaking given by the State of Karnataka, Criminal Miscellaneous Petitions were dismissed by further observing as under: “Before parting with the record, we must unequivocally say that in a democratic country like ours, governed by the Rule of Law, the efficient and independent judiciary manned the subordinate courts, where justice is administered impartially, fearless of public glamour, regardless of public responses and indifferent to private, political or partisan influences. We have no least doubt in our mind that the learned Judge who has been assigned the job will do well in discharging his divine duly in accordance with law, keeping in mind the above principle in view.” 30. From the observations made in the order of transfer passed by the Apex Court and thereafter in the Criminal Miscellaneous Petitions, Apex Court accepting the statement of the State of Karnataka to provide all such assistance for the safety and security of the accused and witnesses for free and fair trial, and taking note of the fact that in view of the transfer, the evidence recorded by the Special Court at Chennai and most of the documents produced might be in Tamil language and the Tamil language is not the language of the court at Karnataka, has ensured that the State of Karnataka would make arrangement for translation of the documents and the depositions, which are in Tamil language into English. 31. The transfer of the case from one court to another court within the State or from one State to another State, the proceedings of the transferor court will not vitiate merely on the ground of transfer. The Apex Court while issuing directions has clearly observed that, the Special Judge shall proceed with the trial from such stage, as he deems fit in accordance with law. 32.
The Apex Court while issuing directions has clearly observed that, the Special Judge shall proceed with the trial from such stage, as he deems fit in accordance with law. 32. It is pertinent to note that, the trial of the cases was transferred at the stage when the prosecution had examined 276 witnesses i.e., almost all the witnesses, the recording of the evidence of the witnesses has been done in Tamil language. The Tamil language is the language of the court in Tamil Nadu. It is nobody’s case that, the evidence recorded by Special Court at Chennai was not in consonance with the provisions of Section 277 of Cr.P.C. 33. However, the question is, as to whether, in view of the transfer of the cases from one State to another State and being change in the language of the court whether the entire evidence recorded by the transferor court becomes redundant in law and required to be scrapped? It is in this regard, it is appropriate to refer to the relevant provisions relating to mode of taking and recording of evidence in enquiries and trials. Chapter XXIII deals with evidence in enquiries and trials. Section 272 of Cr.P.C. contemplates that the State Government may determine what shall be, for the purposes of the Code of Criminal Procedure, the language of each court within the State other than the High Court. In State of Karnataka, Kannada and English are the official language. In case of recording of evidence by the Sessions Court, the provisions of Sections 276, 277 and 278 of Cr.P.C. would apply. The said provisions read as under: “276. Record in trial before Court of Session:- (1) In all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open Court or, under his direction and superintendence, by an officer of the Court appointed by him in this behalf. (2) Such evidence shall ordinarily be taken down in the form of a narrative but the presiding Judge may in his discretion take down or cause to be taken down, any part of such evidence in the form of question and answer. (3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record. 277.
(3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record. 277. Language of record of evidence:- In every case where evidence is taken down under section 275 or section 276 – (a) if the witness gives evidence in the language of the Court, it shall be taken down in that language; (b) if he gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or presiding Judge, and shall form part of the record; (c) where under clause (b) evidence is taken down in a language other than the language of the Court, a true translation thereof in the language of the Court shall be prepared as soon as practicable, signed by the Magistrate or presiding Judge, and shall form part of the record: Provided that when under clause (b) evidence is taken down in English and a translation thereof in the language of the Court is not required by any of the parties, the Court may dispense with such translation. 278. Procedure in regard to such evidence when completed:- (1) As the evidence of each witness taken under section 275 or section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. (2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary. (3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands.” 34.
(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands.” 34. Section 276 of Cr.P.C. requires the evidence of each of the witnesses shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open court or, under his direction and superintendence, by an officer of the Court appointed by him in this behalf and evidence so taken down shall be signed by the Presiding Judge and it shall form part of record. 35. However, more relevant provision is Section 277, which deals with language of court. In case the witness gives evidence in the language of the court, it shall be taken down in that language. If he gives evidence in any other language, if practicable, may be taken down in that language and in case it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the examination of the witness proceeds signed by the Magistrate or presiding Judge. The scope of Section 277 clause (b) is that, if the evidence is given by witness in a language other than the court language, it is permissible for the court to record the said evidence in the said language. If it is not practicable, it may be translated simultaneously as the examination of the witnesses proceeds. In this case, it is not in dispute that, recording of evidence of 276 witnesses has been done by Special Court at Chennai in Tamil i.e., in the language of the said court and that complies with the requirement of Section 277 clause (a) of Cr.P.C. However, in view of transfer of cases from one State to another and the language of the court to which they are transferred being different, the evidence has to be in the language of the court. It is nobody’s case that the court in Karnataka is recording the evidence of the witnesses whose translation is filed. The said evidence is already on record.
It is nobody’s case that the court in Karnataka is recording the evidence of the witnesses whose translation is filed. The said evidence is already on record. There is no fault in recording of the evidence, as it is recorded in the language of that court and in the language of the witness. That is what required to be complied under Section 277(a) of Cr.P.C. However, to understand and appreciate the evidence already on record by the Court to which it is transferred, the said evidence has to be in the language of the court. No doubt, the evidence already on record is in Tamil language, and the said language may not be known to the trail Judge, Prosecutor and the defence lawyer. But to know the evidence and understand and appreciate the same, it does not require the recalling of the witnesses for fresh recording. There is nothing wrong in the evidence already recorded. However, in view of the transfer for the convenience, it is required to be translated. In such case, the recording of fresh evidence is not the scope of either Section 277 or Section 278 of Cr.P.C. At the same time, it should be borne in mind that, the trial Judge for all practical purpose will be relying on the translated evidence, it is in these circumstance, the translation has to be correct and accurate. 36. Before the Apex Court, the State of Karnataka in its counter affidavit had undertaken to get the documents and depositions of the witnesses, which are in Tamil language translated into English language. The order sheet of trial court dated 25.10.2004 shows that the State Government (Karnataka) had deputed 20 Professors, who are experts in translation of Tamil documents into English, the order sheet also shows that 10 Professors reported, it further shows that the translation of the Tamil documents and deposition was completed and same is filed before the trial court and served on the parties on 28.3.2005. 37. However, accused No.1 filed application in I.A.No.396 in June 2010 seeking direction to scrap entire English translation and for doing denovo translation, and sought for translation in the presence of the witnesses. It is not in dispute that the translation work was completed in the year 2005 itself, and runs to nearly 70,000 pages. 38. Chapter XXIII of the Code of Criminal Procedure deals with evidence in enquires and trials.
It is not in dispute that the translation work was completed in the year 2005 itself, and runs to nearly 70,000 pages. 38. Chapter XXIII of the Code of Criminal Procedure deals with evidence in enquires and trials. The relevant provisions are Sections 276, 277 and 278. As the trial in question is before the learned Sessions Judge, the procedure of the recording of evidence is prescribed under Section 277, which reads as under: 277. Language of record of evidence:- In every case where evidence is taken down under section 275 or section 276 – (d) if the witness gives evidence in the language of the Court, it shall be taken down in that language; (e) if he gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or presiding Judge, and shall form part of the record: (f) where under clause (b) evidence is taken down in a language other than the language of the Court, a true translation thereof in the language of the Court shall be prepared as soon as practicable, signed by the Magistrate or presiding Judge, and shall form part of the record: Provided that when under clause (b) evidence is taken down in English and a translation thereof in the language of the Court is not required by any of the parties, the Court may dispense with such translation. On perusal of Section 277, it is clear, if the witness gives evidence in the language of the court, it shall be taken down in the said language. If the witness gives evidence in any other language, which shall be recorded in the said language, if it is not practicable to do so, a true translation of the evidence in the language of the court shall be recorded as the examination of witnesses proceeds. This circumstance arises only if the witness gives evidence in the language other than the court language. Either it could be recorded in the same language or if it is not practicable, translation of the said evidence should be recorded, as the examination of the witnesses proceeds.
This circumstance arises only if the witness gives evidence in the language other than the court language. Either it could be recorded in the same language or if it is not practicable, translation of the said evidence should be recorded, as the examination of the witnesses proceeds. In such event, the Presiding Officer or the Magistrate is required to sign such evidence to make it part of the record. However, if the evidence is already taken down in the language other than the language of the court, true translation thereof in the language of the court shall be prepared as soon as practicable and be signed by the Magistrate or the Presiding Officer to make it as a part of the record. Three circumstances are provided. First circumstance is that, witness gives the evidence in the language of the court, there is no difficulty as far as recording of the evidence of such witness is concerned. Second circumstance is that, if the language of the witnesses is different from the court language, simultaneous translation of the said evidence in the language of the court if practicable, which also requires a signing of the said evidence by the Presiding Officer or the Magistrate. The third circumstance is, where the evidence is taken down in the language other than that of court under clause (b), then it has to be translated and signed by the Presiding Officer or the Magistrate. This is not the case where the trial court, which is now dealing with the matter, is recording the evidence of the witnesses whose translation is filed. It is also not in dispute that the evidence of these witnesses has been recorded in terms of Section 277(a) of Cr.P.C. As such, there is compliance with requirement of Section 277(a) of Cr.P.C. It is only when evidence is being recorded in a language other than the court language. In such cases, simultaneous translation or translation after the evidence is recorded requires to be done. 39. Section 278 sub-section (1) deals with procedure in regard to evidence when completed. The completion of the evidence would be only after the evidence is read over to the witness in the presence of the accused, if in attendance, or if his pleader, if he appears by pleader.
39. Section 278 sub-section (1) deals with procedure in regard to evidence when completed. The completion of the evidence would be only after the evidence is read over to the witness in the presence of the accused, if in attendance, or if his pleader, if he appears by pleader. This stage is also over in this case as recording of evidence was completed, as it was read over in the presence of the witnesses and in the presence of the accused. Section 278 sub-section (2) also is not attracted, as no witness denies or objects the evidence recorded by the court. Section 278 sub-section (3) deals with recording of evidence in a language different from that in which it has been given and the witness does not understand that language. In such cases, the record shall be interpreted to him in the language in which it is given and in the language in which he understands. In this case, this stage also does not arise as this Court is not recording the evidence of those witnesses, whose evidence is translated in English. As such, the reliance placed by the learned Counsel on the provisions of Sections 277 and 278, in my opinion, are not attracted to the facts and circumstances of this case. 40. There is no defect in recording of the evidence of the witnesses in Tamil language by the court at Chennai nor any fault could be found. Now the only question is, whether the correct and accurate translation has been made or there are any defects in the translation? Assuming that there are some defects or it does not give correct meaning of the evidence recorded in Tamil language, it is not disputed by the Public Prosecutor that, if there are any mistakes, errors, omissions or additions to be made in the translation and if they are pointed out, it will be accepted by the prosecution. Thus, for the purpose of ascertaining the accuracy of the translation, it may not be necessary to scrap the entire evidence or translation and re-do the same. If the evidence before the court available is not in the language of the court, it is always open to the court to get the said evidence translated in the language of the court.
If the evidence before the court available is not in the language of the court, it is always open to the court to get the said evidence translated in the language of the court. When evidence has been recorded in the language of the court at relevant point of time and no defect could be found as regard to recording of said evidence, on account of the transfer of said case to another court where the language of the court is different, such defect could be remedied by getting the said deposition in the language of the court to which the case is transferred, but neither the provisions of Section 277 or Section 278 of Cr.P.C. or Rule 8 of the Karnataka Criminal Rules of Practice require that on transfer of the case from one State to another to scrap the evidence and do denovo recording of evidence. Once the evidence is validly recorded, it remains as an evidence of the prosecution and the translation is only to facilitate the court, prosecution and the defence. None of the provisions of the Code of Criminal Procedure require denovo recording of evidence much less under Section 277 or 278 of Cr.P.C. Section 277(c) of Cr.P.C. is applicable where the court records the evidence in a language other than the language of the court in terms of Section 277 clause (b), such evidence is required to be translated in the language of the court and it is required to be signed, but that is not a case here. 41. However, if the evidence already on record is in the language other than the language of the court in Karnataka, an accurate translation of the deposition and documents is necessary for free, fair and proper trial. 42. It is no doubt true that, if the court is required to rely on the translated evidence, it should be accurate and it must give the same meaning as in the original form recorded by the court. To remedy such situation, it is always open to the accused to point out such defects, if any, in the evidence at appropriate time and as submitted by the Special Public Prosecutor that such correction could be made. If that is so, the apprehension that the translation may not give the correct meaning and it is not properly translated, does not merit.
If that is so, the apprehension that the translation may not give the correct meaning and it is not properly translated, does not merit. When defects can be remedied, there is no reason to do denovo translation and such exercise would result in delay in conducing trial. 43. Insofar as recalling of 41 witnesses is concerned, in view of the submissions made by the Special Public Prosecutor, I do not think there is any reason to issue direction to the Special Court, as both the parties agree that the procedure contemplated for recording of the evidence of the witnesses, whose language is not the language of court, would be followed i.e., in accordance with Sections 277 and 278 of Cr.P.C. read with Rule 8 of the Karnataka Criminal Rules of Practice. 44. Free and fair trial is sine qua non of Article 21 of the Constitution of India, it has been made clear by the Apex Court also. There is also no doubt that the accused should get fair and proper opportunity to lead its case. Public Prosecutor owes a duty not only to the State, but also to the court as well as to the accused. He is responsible Counsel to plead for justice and he would assist the court with an ultimate object of placing the truth before the court and in this case, the Special Public Prosecutor has accepted that he owes a duty not only to the court, but also to the accused for free and fair trial. In view of the submission of the Special Public Prosecutor and the defect, if any, in the translation could be remedied, I find that the defect or correction, if any, in the translation, should not come in the way of proceeding with trial. Such correction could be done at appropriate stage. 45. In my opinion, there is no defect in the recording of the evidence as it is done by the court of competent jurisdiction in accordance with the provisions of Section 277 of Cr.P.C. The evidence already on record is in the language of that court, now on transfer, there is a change in the language and it requires a translation of the said evidence and the translation has been done in the light of the undertaking given by the State of Karnataka before the Apex Court.
There is also no illegality or irregularity in filing of the translation of the deposition of the witnesses and document, which are in Tamil. 46. The Trial Court having found that there is no reasonable ground to do denovo trial of recording the evidence of the witnesses nor there is any ground to do denovo translation, has given liberty to the accused to rectify the defects, if any, by calling the persons, who are not connected to the said translation work or to refer the same to some other expert, who is well-versed in both languages Tamil and English and further ordered for choosing the name of the expert by both the sides, if the accused prefers to get the help of the expert to rectify the alleged defects or the mistakes in the English version. The effect of this direction would result in delay in conducting the trial. When there is already evidence in its original form, the defect in translation as observed above, could be rectified as and when it is pointed out at appropriate stage. For the purpose of getting the corrections in the translation, the trial need not wait, as the translations are not necessary for the recording of further evidence of other witnesses. Hence, in my opinion, the order portion giving liberty to the accused to choose the experts once again is wholly unnecessary. The evidence has already been translated and again choosing the experts means doing the translation denovo, which will defeat the very purpose and cause substantial delay, as this is a case of 1997 and still it is at the trial stage. No doubt, fair trial is sine qua non to Article 21 of the Constitution, the delay also defeat the fair trial for many reasons. When there is already translation, the court could have corrected the translation of the evidence, if any mistakes are pointed out, and that would serve the fair and speedy trial and meet the ends of justice. 47. Hence, in the circumstances stated above, I find that the direction issued for choosing the experts once again for translation requires to be set aside. Accordingly, I pass the following: ORDER Criminal Petition No.3766/2010 filed by the State is allowed. The direction issued for appointment of experts once again is hereby set aside. Criminal Petition No.3748/2010 filed by the accused No.1 is dismissed.
Accordingly, I pass the following: ORDER Criminal Petition No.3766/2010 filed by the State is allowed. The direction issued for appointment of experts once again is hereby set aside. Criminal Petition No.3748/2010 filed by the accused No.1 is dismissed. However, liberty is reserved to the prosecution and the accused to point out the defects, mistakes, omissions or additions, etc., if any, to be made in the translation and if such mistakes are pointed out, the trial court shall consider the same and correct the translation of the deposition of the witnesses and the documents, which are translated into English from Tamil. However, the trial shall go on till the recording of the statement of the accused under Section 313 of Cr.P.C. Prosecution and the accused may filed necessary memo pointing out the errors and mistakes, if any, in the translation wherever it is required, on or before the completion of the recording of the evidence of 41 witnesses sought to be recalled.