IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.6243/2018 BETWEEN:
SRI. PARAMAHAMSA NITHYANANDA SWAMY @ RAJASHEKARAN AGED ABOUT 40 YEARS S/O ANNAMALAI ARUNACHALAM R/A NITHYANANDA DHYANAPEETA KALLUGOPANAHALLI, BIDADI HOBLI RAMANAGARA TALUK RAMANAGARA DISTRICT-562 109 ... PETITIONER (BY SHRI. C.V.NAGESH, SENIOR ADVOCATE FOR SHRI. K.RAGHAVENDRA, ADVOCATE) AND STATE OF KARNATAKA BY THE STATION HOUSE OFFICER BIDADI POLICE STATION RAMANAGARA DISTRICT RAMANAGARA, REP BY SPP HIGH COURT OF KARNATAKA BANGALORE-560 001 ... RESPONDENT (BY SHRI. SANDESH J. CHOUTA, SPL.PP) THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 16.07.2018 PASSED IN S.C.NO.86/2014 PRESENTLY PENDING ON THE FILE OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA ORDERING THE APPOINTMENT OF A BASAVARJU AS THE TRANSLATOR TO TRANSLATE THE EVIDENCE OF C.W.1-LENIN FROM TAMIL TO ENGLISH OR KANNADA AND ETC.
THIS CRIMINAL PETITION, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 29.11.2018, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THIS COURT PRONOUNCED THE FOLLOWING:-
ORDER This petition is presented by accused No.1 in S.C.No.86/2014 on the file of III Addl. District & Sessions Judge, Ramanagara, challenging order dated 16.07.2018, appointing Shri Basavaraju, Assistant Lecturer as Translator to translate the deposition of CW.1 from Tamil language to English or Kannada languages.
2. Heard Shri C.V.Nagesh, learned Senior Advocate for the petitioner and Shri Sandesh J.Chouta, learned Additional Advocate General for the State.
3. Briefly stated the facts of the case are, petitioner is facing trial for offences punishable under Sections 376, 377, 420, 114, 201, 417 read with 415, 506(1), 120(B) of IPC. Upon petitioner pleading ‘not guilty’, the case was set down to 16.07.2018 for fixing the date for commencement of trial. On that day, prosecution filed a memo requesting the Trial Court to appoint a Translator to translate the evidence of CW.1, Shri Lenin, proposed to be recorded from 08.08.2018. The memo was accepted and one Basavaraju, was appointed as the Translator.
4. Assailing the impugned order, Shri Nagesh learned Senior Advocate urged following contentions:
that the impugned order has been passed only on the basis of a memo filed by the prosecution even without mentioning the name of the Translator. It is stated in the memo that CW.1 – Lenin knows English & Kannada to certain extent. CW.1 was not summoned to the Court for the learned Trial Judge to record his satisfaction that CW.1 did not have sufficient knowledge of English or Kannada languages;
that the said Shri Basavaraju is a charge sheet witness;
that the Translator being a prosecution witness, there is every possibility of him being guided by the Investigating Officer; and that neither the defence counsel nor the learned Sessions Judge know Tamil language. Therefore, they cannot make out if the evidence of CW.1 is truthfully translated.
5. Opposing the petition, Shri Chouta submitted that CW.1 is a Tamilian and knows Tamil language fluently; and that prosecution has stated in the memo that CW.1 would not be in a position to satisfactorily answer the questions put to him by both prosecution and the defence lawyer. Shri Basavaraju is a Lecturer working in Maharani’s College in Bengaluru. His services were availed by the prosecution to translate certain documents. Hence, he has been shown as a prosecution witness. He is not an interested party and prosecution has sought only professional assistance of translating the deposition. There is no error in law or jurisdiction in the impugned order passed by the learned Trial Judge. With these submissions, he prayed for dismissal of the petition.
6. I have carefully considered the submissions of learned Senior Advocate for the petitioner and the learned Additional Advocate General for the State and perused the records.
7. It is not in dispute that the criminal case was listed before the learned Sessions Judge on 16.07.2018 to fix a date for commencement of trial. It is also not in dispute that on the same day, the Special Public Prosecutor filed a ‘Memo’ requesting the Court to appoint a Translator. Thus, Shri Basavaraju has been appointed as a Translator based on an oral request made by the prosecution as his name is not found in the memo.
8. In substance, petitioner’s case is except the assertion made on behalf of the prosecution before this Court, there was no material before the learned Sessions Judge to infer that C.W.1 did not know any other language than Tamil. Admittedly, C.W.1 was not called to the Court and his proficiency in Kannada and English languages was not ascertained by the learned Sessions Judge.
9. Shri Chouta, placing reliance on paragraphs No.38 to 42 and 53 to 55 in Zahira Habibulla H.Sheikh and another Vs. State of Gujarat and others1 argued that witnesses are the eye and ear of justice and if they are incapacitated to act as such, the trial gets paralysed. Therefore, the Trial Court was justified in appointing the Translator.
10. Shri Nagesh placed mahazars drawn on 09.01.2010, 23.11.2010, 24.11.2010 and a ‘further statement’ of CW1 for perusal and pointed out that all those 1 (2004) 4 SCC 158 documents are in English language and bear the signatures of CW.1, panch witnesses and the Police Officer. He also placed a print out of a blog maintained by CW.1 on the net in English language and a compact disc(CD) and submitted that the said CD contains interviews given by CW.1 in TV channels in English language.
11. Shri. Chouta is right in his submission that witnesses are eyes and ear of justice and if they are incapacitated, trial shall be paralysed. At the same time, an accused facing serious criminal charge must have the benefit of a fair trial. No exception could have been taken to the impugned order if the learned Sessions Judge had recorded his satisfaction with regard to the languages known to him and his proficiency in the said languages. Admittedly, the impugned order has been passed before summoning CW.1. It is also not in dispute that Translator is C.W.79. Perusal of panchanamas and further statement of C.W.1, which run to about ‘nine’ pages are all in English language.
12. It is a settled principle that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
13. In the circumstances, the impugned order appointing a Translator without enquiring CW.1 and recording the satisfaction of learned Trial Judge is unsustainable in law.
14. Resultantly, this petition merits consideration and hence the following:
ORDER i) Petition is allowed;
ii) Order dated 16.07.2018 in S.C.No.86/2014 passed by the III Addl. District & Sessions Judge, Ramanagara, is set aside;
iii) The case is remitted to the learned Sessions Judge for fresh consideration in accordance with law after making an enquiry with CW.1 with regard to languages known to him and his proficiency in the said languages and proceed further; and iv) In the event the learned Sessions Judge arrives at a conclusion based on his satisfaction that Translator is necessary, he may order appointing a Translator, as far as possible an officer of the Court or a neutral person who is totally unconnected with the case.
No costs.
Sd/- JUDGE Yn.