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CASE NO.: Appeal (crl.)  44 of 2005

PETITIONER: Jayendra Saraswathi Swamigal

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 10/01/2005

BENCH: CJI R. C. Lahoti, G. P. Mathur & P.P. Naolekar

JUDGMENT: J U D G M E N T  

(Arising out of SLP(Crl.) No. 6192 OF  2004)

G.P. MATHUR, J.

1.      Leave granted.

2.      This appeal, by special leave, has been preferred against the order  dated 8.12.2004 of Madras High Court, by which the petition for bail filed  by the petitioner under Section 439 Cr.P.C. was rejected.

3       An F.I.R was lodged at 7.00 p.m. on 3.9.2004 at Police Station B-2,  Vishnu Kanchi by Shri N.S. Ganesan.  It was stated therein that at about  5.45 p.m. on 3.9.2004 while he was in the office of Devarajaswamy  Devasthanam, two persons armed with aruval came there and caused  multiple injuries to Sanakararaman, In-charge Administrative Manager, who  was sitting on a chair.  Three persons were waiting outside and the assailants   escaped on their motor cycles.   After the case was registered, necessary  investigation followed and several persons have been arrested.   According  to the case of the prosecution, the actual assault upon the deceased was made  by A-6 and A-7, while four persons, namely,  A-5, A-8, A-9 and A-10 were  standing outside.  

4.      The petitioner, Shri Jayendra Saraswathi Swamigal, who is the  Shankaracharya of Kanchi Mutt, Kanchipuram, was arrested on 11.11.2004  from Mehboob Nagar in Andhra Pradesh.  He moved a bail petition before  the High Court of Madras, which was rejected on 20.11.2004 and the second  bail petition was also rejected by the impugned order dated 8.12.2004.   

5.      According to the case of the prosecution, the petitioner had entered  into a conspiracy with some other co-accused for getting Sankararaman  murdered.   The motive for the commission of the crime is said to be various  complaints alleged to have been made by the deceased levelling serious  allegations, both against the personal character of the petitioner and also his  style of functioning as Shankaracharya of the Mutt.   In the reply statement  filed on behalf of State of Tamil Nadu, it is averred that the deceased had  filed a complaint before the Commissioner HR&CE not to allow the  petitioner to visit China.  He filed a writ petition in the Madras High Court  claiming the same relief which was later on dismissed as a statement was  made by the petitioner that he had no intention of going to the said country.  The deceased sent several letters alleging that the petitioner was selling  properties of the Mutt; was indulging in corruption and misappropriation of  funds.  He also made complaint before Special Commissioner, HR&CE that  the petitioner was not observing the rules of Sanyasa Asrama Dharma; was  leading a luxurious life enjoying mundane comforts; not performing the  Pooja and promoting commercial ventures.   It is also the case of the

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prosecution that the deceased sent a letter under the name of Somasekara  Ganapadigal alleging that the petitioner was indulging in immoral activities  and was having relationship with women and finally a letter was sent by him  on 30.8.2004 to the petitioner as "last warning" wherein it was said that  when the petitioner went to Thalakeverj, Kaveri river dried; when he went to  the only Hindu Kingdom of Nepal, the entire royal family was wiped out;  and when he went to Kumbakonam, there was a fire tragedy and many  innocent lives were lost.  Shri K.T.S. Tulsi, learned senior counsel for the  State, has submitted that after receipt of this letter dated 30.8.2004 described  as "last warning", the petitioner called accused A-2, A-3 and A-4 and a  conspiracy was hatched for eliminating the deceased.    

6.      In order to establish the aforesaid motive for commission of crime, the  prosecution relies upon copies of 39 letters which were allegedly recovered  from the house of the deceased himself.   What the prosecution claims is that  the deceased used to keep copies of all the letters and complaints which he  made against the petitioner and it is these copies which have been recovered  from the house of the deceased.  The prosecution claims that of these 39  letters or complaints 5 complaints were found in the office of HR&CE,  Chennai which relate to the  period 14.8.2001 to 23.1.2002, one in the  residence of A-4 and 2 in the residence of the petitioner.  In our opinion, the  recovery of these letters from the house of the deceased himself is not a  proof of the fact that they were actually received by the petitioner or were  brought to his notice.   The deceased was not an employee of the Mutt but  was working as In-charge Administrative Manager of another  Dharamsthanam which has nothing to do with Kanchi Mutt and at least since  1998 he had no connection with the said Mutt.   Though according to the  case of the prosecution, the deceased had started making complaints against  the petitioner since August 2001, there is absolutely no evidence collected in  investigation that the petitioner made any kind of protest or took any kind of  action against the deceased.   Even otherwise, many letters or complaints etc.  are addressed to people holding high office or position and it is not  necessary that they read every such letter or complaint or take them  seriously.   There is absolutely no evidence or material collected so far in  investigation which may indicate that the petitioner had ever shown any  resentment against the deceased for having made allegations against either  his personal character or the discharge of his duties as Shankaracharya of the  Mutt.   The petitioner having kept absolutely quiet for over three years, it  does not appeal to reason that he suddenly decided to have Sankararaman  murdered and entered into a conspiracy for the said purpose.

7.      Shri F.S. Nariman, learned senior counsel for the petitioner,  has  submitted that the specific case of the prosecution at the time of the hearing  of the first bail application before the High Court was that a huge sum of  money amounting to Rs.50 lakhs was withdrawn from an account of the  Mutt maintained in ICICI Bank, Kanchipuram for being paid to the  hirelings.   The same stand was taken by the prosecution when the second  bail application was heard by the High Court. In the two orders passed by  the High Court by which the bail petitions were rejected, the plea of the  State that the money was withdrawn from the account of the Mutt in ICICI  Bank, Kanchipuram for payment to the hirelings is clearly mentioned. When  the special leave petition was heard for admission on 17.12.2004, a detailed  order was passed by this Court, wherein the State was directed to give  particulars of the bank account wherefrom money is alleged to have been  withdrawn by the petitioner for payment to the assailants and also to produce  the copy of the account and the passbook, if any, seized by the investigating  agency.   However, in the statement in reply which has been filed in this  Court by the State on 6.1.2005, a different stand is taken that an agreement  had been entered into for sale of 50 acres of land belonging to Kanchi  Janakalyan Trust to Bhargava Federation Pvt. Ltd. for Rs.5 crores, wherein  an advance of Rs.50 lakhs in cash was received on 30.4.2004 and an  endorsement regarding receipt of the said amount was made on the reverse  side of the first page of the agreement.   It was this money which was  retained in cash by the petitioner all along from which payment was made to  the hirelings after the conspiracy was hatched soon after the receipt of the

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alleged letter dated 30.8.2004 sent by the deceased which was described as  "last warning".    No  documents  of  the  account   in   ICICI  bank   have  been     produced    in    support   of   the   plea   which    was   twice     taken  by the prosecution before the High Court while opposing the prayer for bail  made by the petitioner.

8.      N. Sundaresan (A-23) who is Manager of the Mutt was arrested on  24.12.2004 and was produced before the Judicial Magistrate, Kanchipuram  at 1.45 p.m. on 25.12.2004.   He stated before the Magistrate that he had  received Rs.50 lakhs in cash on 30.4.2004 and the said amount was  deposited in Indian Bank, Sankara Mutt Branch on 7.5.2004.   Learned  counsel for the petitioner has placed before the Court copies of two accounts  bearing nos.124 and 125 which the Kanchi Kamakothi Peetham Shri  Sankaracharya Swam has in the Indian Bank at No.1, Salai Street,  Kanchipuram.   This statement of account shows that on 7.5.2004 an amount  of Rs.28,24,225/- was deposited in cash in account no.124 and an amount of  Rs.21,85,478/- was deposited in cash in account no.125.   Thus the total  amount which was deposited in cash comes to Rs.50,09,703/-.   Learned  counsel has explained that in addition to Rs.50 lakhs which received in cash  an extra amount of Rs.9,703/- was deposited in order to liquidate the  overdraft over which penal interest was being charged by the bank.   The  statement of account clearly shows that after deposit of the aforesaid amount  the entire overdraft was cleared.   This clearly shows that the entire amount  of Rs.50 lakhs which was received in cash on 30.4.2004 was deposited in  Bank on 7.5.2004.   This belies the prosecution case, which was developed  subsequently after the order had been passed by this Court on 17.12.2004  directing the State to produce copy of the ICICI Bank account, that the cash  money was retained by the Petitioner from which substantial amount was  paid to the hirelings.

9.      The prosecution also relies upon confessional statement of Kathiravan  (A-4) recorded under Section 164 Cr.P.C. on 19.11.2004, wherein he stated  that he went to the Kanchi Mutt on 1.9.2004 and in the presence of Ravi  Subramaniam and Sundaresan, the petitioner said that Sankararaman had  written letters and had filed cases and it was not possible for him to bear the  torture any longer and, therefore, he should be killed on the same day.   It is  important to mention here that A-4 retracted his confession on 24.11.2004  when his statement was again recorded under Section 164 Cr.P.C.   The  prosecution also relies upon confession of Ravi Subramaniam (A-2) which  was recorded on 30.12.2004 wherein he made a similar statement that the  petitioner offered him Rs.50 lakhs on 1.9.2004 for getting rid of  Sankararaman.   

10.     Shri Nariman has submitted that in view of Section 30 of the Evidence  Act confession of a co-accused is a very weak type of evidence which can at  best be taken into consideration to lend assurance to the prosecution case.    He has referred to the decision of the Privy Council in Bhuboni Sahu v. The  King AIR 1949 PC 257, wherein it was observed that confession of a co- accused is obviously evidence of a very weak type and it does not come  within the definition of evidence contained in Section 3 as it is not required  to be given on oath, nor in the presence of the accused and it cannot be  tested by cross-examination.   Learned counsel has also referred to Kashmira  Singh v. State of M.P. AIR 1952 SC 159 where it was held that the  confession of an accused person is not evidence in the ordinary sense of the  term as defined in Section 3 and it cannot be made the foundation of a  conviction and can only be used in support of other evidence.  It was further  observed that the proper way is, first to marshall the evidence against the  accused excluding the confession altogether from consideration and see  whether, if it is believed a conviction could safely be based on it.  If it is  capable of belief independently of the confession, then of course it is not  necessary to call the confession in aid.  But cases may arise where the Judge  is not prepared to act on the other evidence as it stands even though, if  believed , it would be sufficient to sustain a conviction.  In such an event the  Judge may call in aid the confession and use it  to lend assurance to the other  evidence and thus fortify himself in believing such evidence which without

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the aid of the confession he would not be prepared to rely on for basing a  finding of guilty.  Reliance has also been placed upon the Constitution  Bench decision in Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184,  where it was held that the Court cannot start with the confession of a co- accused person; it must begin with other evidence adduced by the  prosecution and after it has formed its opinion with regard to the quality and  effect of the said evidence, then it is permissible to turn to the confession in  order to receive assurance to the conclusion of guilt which the judicial mind  is about to reach on the said other evidence.   It was further observed that the  confession of a co-accused person cannot be treated as substantive evidence  and can be pressed into service only when the Court is inclined to accept  other evidence and feels the necessity of seeking for an assurance in support  of its conclusion deducible from the said evidence.   It has thus been urged  that the confession of A-4 which was retracted by him subsequently and also  that of A-2 have very little evidentiary value in order to sustain the charge  against the petitioner.

11.     Shri K.T.S. Tulsi, learned senior counsel, has,  on the other hand,  placed strong reliance on Section 10 of the Evidence Act and has submitted  that this being a specific provision dealing with a case of conspiracy to  commit an offence, the principle laid down  in  the  authorities  cited  by   Shri Nariman would not apply and anything said, done or written by any one  of the accused is a relevant fact as against each of the person conspiring to  commit a crime.   In this connection he has referred to State of U.P. v. Buta  Singh 1979 (1) SCC 31, State of Maharashtra v. Damu 2000 (6) SCC 269,  Firozuddin Basheeruddin & Ors. V. State of Kerala 2001 (7) SCC 596,  Prakash Dhawal Khairnar v. State of Maharashtra 2002 (2) SCC 35 and  State of H.P. v. Satya Dev Sharma & Ors. 2002 (10) SCC 601.    

12.     The opening words in Section 10 are "where there is reasonable  ground to believe that two or more persons have conspired together to  commit an offence".   If prima facie evidence of the existence of a  conspiracy is given and accepted, the evidence of acts and statements made  by anyone of the conspirators in furtherance of the common object is  admissible against all.   Therefore, there should first be a prima facie  evidence that the person was a party to the conspiracy before his acts or  statements can be used against his co-conspirators.   No worthwhile prima  facie evidence apart from the alleged confessions have been brought to our  notice to show that the petitioner along with A-2 and A-4 was party to a  conspiracy. The involvement of the petitioner and A-2 and A-4 in the  alleged conspiracy is sought to be established by the confessions themselves.    The correct import of  Section 10 was explained by the Judicial Committee  of the Privy Council in Mirza Akbar v. King Emperor AIR 1940 PC 176 as  under :

"The words of S.10 are not capable of being widely  construed so as to include a statement made by one conspirator  in the absence of the other with reference to past acts done in  the actual course of carrying out the conspiracy, after it has  been completed.  The words "common intention" signify a  common intention existing at the time when the thing was said,  done or written by one of them.  Things said, done or written  while the conspiracy was on foot are relevant as evidence of the  common intention, once reasonable ground has been shown to  believe in its existence.  But it would be a very different matter  to hold that any narrative or statement or confession made to a  third party after the common intention or conspiracy was no  longer operating and had ceased to exist is admissible against  the other party.  There is then no common intention of the  conspirators to which the statement can have reference."

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       Here, the confessions of A-2 and A-4 were recorded long after the  murder when the conspiracy had culminated and, therefore, Section 10 of the  Evidence Act cannot be pressed into service.  However, we do not feel the  necessity of expressing a concluded opinion on this question in the present  case as the matter relates to grant of bail only and the question may be  examined more deeply at the appropriate stage.

13.     Shri Tulsi has also submitted that there is also evidence of dying- declaration in order to fasten the liability upon the petitioner and for this  reliance is placed upon the statement of S. Vaidyanathan, which was  recorded under Section 164 Cr.P.C. on 28.12.2004.   This witness has  merely stated that he knew deceased Sankararaman and used to talk to him  and further that at 1.30 p.m. on 3.9.2004 Sankararaman contacted him over  phone and told him that his petition presented to HR&CE Department was  numbered and if any danger came to him, Jayendra alone will be responsible  for the same.  Since the telephonic conversation which the Sankararaman  had with this witness, did not relate to the cause of his death or as to any of  the circumstances of the transaction which resulted in his death, the same  does not come within the purview of Section 32(1) of the Evidence Act and  is not admissible in evidence.

14.     Shri Tulsi, learned senior counsel for the respondent, has also referred  to certain other pieces of evidence which, according to him, showed the  complicity of the petitioner with the crime in question.   He has submitted  that the petitioner had talked on phone to some of the co-accused.   The  material placed before us does not indicate that the talk was with A-6 and   A-7 who are alleged to have assaulted the deceased or with A-5, A-8, A-9  and  A-10, who are alleged to have been standing outside.   Learned counsel  has also submitted that there are two other witnesses who have heard the  petitioner telling some of the co-accused to eliminate the deceased.   The  names and identity of these witnesses have not been disclosed on the ground  that the interrogation is still in progress.   However, these persons are not  employees of the Mutt and are strangers.   It looks highly improbable that  the petitioner would talk about the commission of murder at such a time and  place where his talks could be heard by total strangers.   

15.     Shri Tulsi has lastly submitted that the prohibition contained in  Section 437(1)(i) Cr.P.C. that the class of persons mentioned therein shall  not be released on bail, if there appears to be a reasonable ground for  believing that such person is guilty of an offence punishable with death or  imprisonment for life, is also applicable to the Courts entertaining a bail  petition under Section 439 Cr.P.C.   In support of this submission, strong  reliance has been placed on a recent decision of this Court in Kalyan  Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr. 2004 (7) SCC  528.   The considerations which normally weigh with the Court in granting  bail in non-bailable offences have been explained by this Court in State v.  Capt. Jagjit Singh AIR 1962 SC 253 and Gurcharan Singh v. State (Delhi  Admn.) AIR 1978 SC 179 and basically they are \026 the nature and  seriousness of the offence; the character of the evidence; circumstances  which are peculiar to the accused; a reasonable possibility of the presence of  the accused not being secured at the trial; reasonable apprehension of  witnesses being tampered with; the larger interest of the public or the State  and other similar factors which may be relevant in the facts and  circumstances of the case.   The case of Kalyan Chandra Sarkar (supra) was  decided on its own peculiar facts where the accused had made 7 applications  for bail before the High Court, all of which were rejected except the 5th one  which order was also set aside in appeal before this Court.   The 8th bail  application of the accused was granted by the High Court which order was  subject matter of challenge before this Court.   The observations made  therein cannot have general application so as to apply in every case

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including the present one wherein the Court is hearing the matter for the first  time.   

16.     For the reasons discussed above, we are of the opinion that prima  facie a strong case has been made out for grant of bail to the petitioner.   The  appeal is accordingly allowed and the impugned order of the High Court is  set aside.    The petitioner shall be released on bail on his furnishing a  personal bond and two sureties to the satisfaction of the Chief Judicial  Magistrate, Chengleput.  Shri Nariman has made a very fair statement that  till the investigation is under progress, the petitioner shall not visit the Mutt  premises.   We accordingly direct that till the submission of the charge sheet  in Court, the petitioner shall not visit the Mutt premises.   He shall also  surrender his passport before the CJM.   

17.     Before parting, we would like to place it on record by way of  abundant caution that whatever has been stated hereinabove in this order has  been so said only for the purpose of disposing of the prayer for bail made by  the petitioner.  Nothing contained in this order shall be construed as  expression of a final opinion  on any of the issues of fact or law arising for  decision in the case which shall naturally have to be done by the trial court  seized of the trial.  We have only formed a prima facie opinion and placed  the same on record in fairness to the learned senior counsel for the State who  raised those pleas and vehemently urged the same by citing various  provisions of law and the authorities.