Message going out to the world that accused being kept as undertrials for years on end: Madras High Court in Thanjavur Murder case

The Madras High Court recently took a dim view of trials being protracted and said that due to such delays, a message is going to the world that accused are being kept as undertrials in India for years on end [Mohammed Asarudeen v. Union of India]..A bench of Justices PN Prakash and RMT Teeka Raman took exception to the delay by the special court under the National Investigation Agency Act (NIA Act) in examining protected witnesses in the 2019 Thanjavur murder case."What is highlighted to the superior courts and to the world is, accused are being kept as undertrials for years on end in our criminal justice system. None will have the patience to pore over trial court records to find out who was actually responsible for the delay," the High Court said.It further stated the special court had failed to follow all guidelines on examination of protected witnesses.The Court cited the 2021 killing of the Additional Sessions Judge Uttam Anand in Dhanbad, Jharkhand and asked what the special court would do if anything was to happen to the key protected witnesses in the Thanjavur case."Supposing, something untoward happens to PW1 and PW2, what would happen to their testimony in chief? Can it be eschewed?" We are constrained to record our fears because, the whole world saw a Sessions Judge dealing with the cases of Mining Mafia being mowed to death in the State of Jharkhand while he was on his morning walk," the bench said.It, therefore, directed the special court in Chennai to complete the cross examination of two protected witnesses in the case without any delay. .The Court was hearing appeals filed by the ten accused challenging rejection of their bail petitions by the special court.The case, in which a man was killed allegedly after he had raised objections to a group of men "proselytising Hindus to Islam," had resulted in much communal tensions across the State at the time. The local police had arrested several Muslim men following the incident. The case was subsequently transferred to the NIA by the Central government and a total of eighteen men, all Muslims were named as accused in the chargesheet.They were charged under the Indian Penal Code and the Unlawful Activities Prevention Act (UAPA). Twelve were arrested and remanded to judicial custody while six were said to be absconding. All their bail petitions were dismissed by the special court..Subsequently, two accused moved the High Court challenging the special court order and they were granted bail by the High Court on September 6, 2019. Ten other accused then filed appeals before the High Court for bail.The High Court by an order dated March 10, 2020 rejected the appeals filed by the accused but granted liberty to them to file a fresh bail application after the examination of the protected witnesses.The Court also directed the special court to complete the examination of the witness by June 30, 2020. That deadline was subsequently extended to January 31, 2021 by the High Court. However, protected witnesses were still not examined. .The High Court then sought a report from the special court on why it was yet to examine the witnesses.The special court submitted a report to the High Court on September 15 this year saying that there were 243 witnesses in the case, of which 14 were protected witnesses. The special judge said that the prosecution and the defence had mutually agreed that witnesses will be cross examined serial number wise and protected witnesses need not be cross examined first.However, during the hearing, the Court was informed that the first protected witness, one of the police officers present for the panchnama in the case, was brought to court for cross examination on February 22 but the cross examination could not go on for too long because the special court noted that one word in the panchnama had been erased with a whitener and something else had been written with pen in Tamil. The word written in pen was 'torn' but the witness denied having written it.In order to rebut this witness, the counsel for the defence had asked the special court to make the witness write the concerned word five times and send it to a hand writing expert for comparison. But the public prosecutor opposed this course and filed a counter to this plea of the defence.The High Court noted that on this score, the further cross examination of the concerned witness has come to a stand still.The Court took a strong exception to the episode."If the trial is to progress in this manner, we are afraid, it will not see the light of the day for another decade to come," the High Court opined..It, therefore, directed the special court to complete the cross examination of witnesses, particularly the protected witnesses numbers one and two "without any delay." Advocate Issac Mohanlal, senior counsel SAS Alaudeen, and advocate A Nowfal appeared for the appellants seeking bail.Special Public Prosecutor for the NIA R Karthikeyan appeared for the prosecution..[Read Judgment]