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Over to the apex court

Saturday 8 January 2005, by VISWANATHAN*S.

HAVING failed to secure bail even after moving various courts four times in five weeks, the head of the Kanchi Kamakoti Peetam, Jayendra Saraswathi, now lodged in the Vellore Central Prison, is looking to the apex court for relief. On December 17, a three-Judge Bench of the Supreme Court heard his Special Leave Petition (SLP) against the Madras High Court’s refusal to grant him bail in the Sankararaman murder case, and posted it for further hearing on January 6, 2005, after ordering notice to the Tamil Nadu government. The court rejected the Sankaracharya’s prayer that he be granted interim bail to perform `Dhanur masa puja’ at the mutt, under police guard. The Supreme Court "kept pending" another petition by Jayendra Saraswathi that challenged the December 10 order of the Principal Sessions Court, Chennai, denying him bail in the Radhakrishnan assault case. He was asked to move the appeal before the Madras High Court first.

Although the police objected to the grant of bail contending that the investigation was incomplete and the Sankaracharya, if released on bail, might attempt to tamper with evidence, the legal point at stake appears to be whether the recent ruling of the Supreme Court in the Pappu Yadav case would be applicable to the cases in question. In the Pappu Yadav case, the Supreme Court had ruled that the conditions laid down under Section 437 (1) (i) of the Code of Criminal Procedure (CrPC) was a sine qua non (condition precedent) for granting bail even under Section 439 of the Code, which confers special powers on the High Court and the Court of Sessions to grant bail in criminal cases.

[Section 437 of the CrPC reads: When bail may be taken in case of non-bailable offence, "(1) When any person accused of, or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but - (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life."]

Senior Counsel Fali S. Nariman, who appeared for the petitioner when the Bench comprising Chief Justice R.C. Lahoti, Justice G.P. Mathur and Justice P.P. Naolekar took up the seer’s SLP, argued that the High Court had erroneously rejected the bail petition applying the Pappu Yadav case ruling. He cited a five-Judge Constitution Bench ruling to contend that the High Courts had the power to grant bail based on the facts and circumstances of each case.

Nariman told the court that two accused, Kathiravan and Rajni alias Chinna, had retracted the confessional statements they had made before a judicial magistrate. When the Bench asked him about the confessional statement said to have been made by Jayendra Saraswathi in police custody, Nariman said that "it was a professional misconduct on the part of the prosecution to have submitted it when it was not admissible in evidence and what is more surprising is how the High Court allowed it to be produced in the court".

The Judges told Nariman that no interim relief would be possible because the Bench wanted to examine the entire matter. Senior counsel for the State, K.T.S. Tulsi, was asked to produce all the records in the court on January 6. The Bench also directed the prosecution to produce details of the bank accounts from which money was allegedly withdrawn to pay the assailants. It also sought details such as who was authorised to withdraw the money and who had actually withdrawn it. The State was also directed to furnish the passbooks seized by the police, the confessional statements of the accused and the retraction thereof, and the last letter which Sankararaman was said to have written to Jayendra Saraswathi, which has been cited by the prosecution as a dying declaration of the murdered person.

On December 8, Justice R. Balasubramanian in the Madras High Court, who dismissed the bail petition in the Sankararaman murder case, observed that the "materials relied upon by the prosecution... would prima facie constitute `reasonable grounds to believe’ that the petitioner is shown to be guilty of an offence punishable with death or imprisonment for life." The Judge "carefully" avoided expressing any opinion "at this stage" on the merits or demerits of the case based on the material produced, on the grounds that the court could not go beyond prima facie material in support of the charge and left it to be decided on evidence by the trial court. The Judge cited in his judgment the Supreme Court ruling in the Pappu Yadav case.

However, the same Judge, who heard the submissions by Tulsi and Jayendra Saraswathi’s counsel, M. Sathyanarayanan, on the seer’s writ petition seeking bail in the Radhakrishnan assault case, raised certain significant queries on the applicability of a statutory bar under Section 437 (1) (i) of the CrPC to granting bail in assault cases and the meaning of the term "punishable with" as given in the legal lexicon. The court wanted to ascertain whether the term referred only to the maximum sentence mentioned in the code or even a lesser sentence, while interpreting the ruling in assault cases. Tulsi held the view that assault cases would also attract the bar to the granting of bail. He observed that it would suffice if the court was enabled to punish the accused and that it need not actually punish him with life imprisonment.

Sathyanarayanan’s contention was that there were, before the court, other facts that could conform to the "normal yardstick" for a person accused in an assault case. He cited the two-and-a-half year delay in the prosecution’s attempt to establish the motive behind the murder and the recovery of knives allegedly used by the assailants two years after the assault.

When the hearings before the High Court and the Supreme Court resume, the applicability of the Pappu Yadav case ruling is likely to come under further scrutiny.

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