Jayendra Saraswati Swamigal Alias ... vs State Of Tamil Nadu

2. The appellant herein is one of the accused in a Crime registered by Vishnu Kanchi Police Station at Tamil Nadu. The police after investigation filed final report on 21-1-2005 and the case was committed to the Principal Sessions Judge- Chinglepet and was registered as Session Case No. 197/05. 2 The appellant then moved this Court under Section 406 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) seeking transfer of the case to any other State. The appellant alleged in the Transfer Petition that he was being unnecessarily harassed by the State of Tamil Nadu and that he would not get a fair trial. This Court in SRI JAYENDRA SARASWATHI SWAMIGAL (II), T.N. v. STATE OF TAMIL NADU (2005) 8 SCC 771 considered the matter in detail and reached the following conclusion in paragraph 24 of the judgment :-

Thus, the Sessions Case No. 197/2005, pending before the Principal Sessions Judge, Chinglepet, was transferred to the court of Principal District and Sessions Judge, Pondicherry and was numbered as Sessions Case 94/2005.

3. The Home Department of the State of Tamil Nadu on 25-11-2005 appointed one Special Public Prosecutor and four Additional Special Public Prosecutors for conducting the trial of the Sessions case pending before the Principal District and Sessions Judge, Pondicherry. The appellant herein filed a petition before the Sessions court challenging the appointment of the Public Prosecutors by the State of Tamil Nadu and contended that the Special Public Prosecutor appointed by State of Tamil Nadu has no right to conduct the prosecution of 4 the Sessions case pending before the Pondicherry court, outside the State of Tamil Nadu. The Principal Sessions Judge, Pondicherry, by an order dated 25-1-2006, held that under Section 24 of the Cr.P.C. the State of Tamil Nadu has the power to appoint the Special Public Prosecutor for conducting the trial of the case and the State had not lost its right to appoint the Public Prosecutor, merely on account of transfer of the case to the Sessions court at Pondicherry. The court also noticed the fact that this Court, while transferring the Sessions case at Pondicherry, had not specifically directed that the State of Tamil Nadu shall not appoint a Public Prosecutor to conduct the case.

4. The appellant preferred a Revision Petition challenging the order passed by the Principal District and Sessions Judge, Pondicherry. The High Court of Madras confirmed the decision of the Sessions court and held that the offence had been committed within the State of Tamil Nadu, the 5 investigation was done by the Tamil Nadu police and the committal proceedings had also taken place in the court at Tamil Nadu and hence the Government of Tamil Nadu had the domain over that sessions case and unless this Court, considering the special circumstances, directs in a particular case, appointment of a Special Public Prosecutor by the State to which the case has been transferred in the interest of justice, the transferee State cannot normally venture to appoint any Special Public Prosecutor to handle the case which it received as per the orders of this Court. The High Court was also of the view that it would be unjust to direct the transferee State Government to open the purse stings to meet out the expenditure for the appointment of a Special Public Prosecutor.

12. We set aside the impugned order passed by the High Court and direct that the State of Pondicherry may continue with the prosecution of the case in accordance with the law and the Public Prosecutor or Special Public Prosecutor may be appointed by the State of Pondicherry to conduct the criminal proceedings in respect of Sessions Case No. 94 of 2005 pending before Principal & Sessions Judge of Pondicherry.

13. The Appeal is allowed to the extent indicated above.

JULY 22, 2008.