@JUDGMENTTAG-ORDER
M. Thanikachalam, J.@mdashThe second accused in Cr. No. 914/2004 on the file of the respondent herein, has moved this bail application, since
he is detained in prison, after his apprehension on and from 10.1.2005, for the alleged offences said to have been committed by him along with
other accused, totalling 24 or 25.
2. The Learned Counsel for the petitioner/accused Mr. K.S. Dinakaran submitted, that to link or connect or implicate this petitioner, as accused, in
the murder case, practically there is no material and nil evidence, except the statement of one Ravi Subramaniam recorded u/s 164 of Cr.P.C, who
has turned as an approver and in addition to the alleged confession statements of the co-accused, which cannot be treated as substantial evidence,
in proving the serious offence of this nature and based on these materials, further detention is unwarranted. It is the further submission of the
Learned Counsel, that the first accused was already ordered to be released on bail by the Hon''ble Apex Court, considering the same materials
relied on by the petitioner, and this petitioner being placed similarly, the benefits extended to the first accused should be extended to the second
accused also, since there is no reason to deny that benefit, or advantage, the further fact being, even as per the materials placed before the Court,
no prima facie case has been made out.
3. Mr. K. Duraisamy the learned Public Prosecutor countering the above submissions submitted, that the materials are plenty in this case, to make
out a prima facie case against the petitioner and that the grounds on which the first accused has been released on bail, are not at all available to this
accused, since he is not placed in the similar circumstances of the first accused. In support of his submission, aid was sought from the statement of
Ravi Subramaniam/approver given u/s 164 of Cr.P.C, as well as the statement of Raghu/A4, 161 Cr.P.C. statement of Appu, in addition to some
other statements given by the Mutt employees viz., Subramaniam & Kannan.
4. On 3.9.2004, at about 5.45 p.m., when Mr. Sankara Raman, an Administrative Manager of Shri Devarajaswamy Devasthanam,
Kancheepuram was in the precinct of Sri Varadaraja Perumal Temple, Kancheepuram, attending his duty, he was brutally attacked by some
persons, showing their muscle power, spreading the waves of terror in the region, thereby terminating his life instantaneously and prematurely, for
which there cannot be any parallel. On the basis of the complaint given by one Shri N.S. Ganesan at about 7.00 p.m. on the same day, a case has
been registered u/s 302 r/w 34, 120(B) I.P.C. in Cr. No. 914/2004. Though originally the names of the petitioner and A-1 do not find place in the
first information report, the investigation conducted by the Special Team formed, for the specific purpose of investigating this case, brought to
surface the involvement of this petitioner also, along with others and in this view, after interrogating twice or so, this petitioner was arrested on
10.1.2005. Being aggrieved, as if he is detained, without any base, as mentioned supra, the petition is moved for bail, claiming innocence, which is
countered, labelling this petitioner also the cause for murder.
5. As ruled by the Apex Court in Kalyan Chandra Sarkar etc. vs. Rajesh Ranjan @ Pappu Yadav and another (2005 SCCL. COM 43), and in
plethora of decisions of the various courts, it is trite law that personal liberty cannot be taken away, except in accordance with the procedure
established by law. In this case, the accused petitioner is detained under the criminal law of this Country, which should be construed, that the
detention is in accordance with the procedure established by law and there cannot be any dispute. Only on the ground that the petitioner was
arrested or shown as an accused of non bailable offence, his right of bail cannot be denied totally and in order to deny that right, it must be shown
that there is ''prima facie'' case against this petitioner, warranting an unquestionable interference at least, for the offence u/s 302 r/w 120-B I.P.C,
since it is said this petitioner is one of the conspirators, and in case of his release, there is every possibility to come to the conclusion, that by using
his position as junior pontiff of Shri Shankara Mutt, Kancheepuram, he would wield influence over the witnesses, thereby tampering the witnesses,
crippling the further progress of the case. If these things are not established, though the accused stands charged for the non bailable offence, his
claim for bail could be considered favourably, since law also favours so. Further, as ruled by the Apex Court, even if the Court is satisfied, for
reasons to be recorded, that in spite of the existence of prima facie case, there is a need to release such person on bail, where fact situations
require it to do so, the claim of the bail should be considered, since the liberty of the individual takes predominant role, that too the legal position
being, when a man is charged for an offence, until his guilt is proved, he is to be presumed as innocent.
6. In order to contain the law and order situation, and lawlessness and to infuse security in the mind of law abiding citizens, certainly it is the duty of
the investigating officer not only to collect the materials, to fix the accused, especially when a gruesome murder was reported, then to file the final
report, but also the duty extends till the end of the trial, since he is expected to preserve that materials in tact, beyond the reach of the accused
hands, to prove the guilt of the accused. Thus, to give protection and safeguard the materials collected by the investigating agency, while
considering the liberty of an individual, his alleged role, position in the society, his conduct in case of his release are to be taken into consideration,
since the law mandates, the guilty should not be allowed to escape from the clutches of law.
7. In this case, the bail application is opposed mainly on the ground, that the petitioner being the junior pontiff of Kan-chi Kamakoti Peetam, having
powerful followers and some of the witnesses being the employees of the said Peetam, there is every chance for this petitioner to meddle with the
materials, which cannot be ruled out so easily, considering the admitted position. At the same time, taking into account this fact alone, ignoring the
other position, such as, whether prima facie case is available or not and what would be its effect, it may not be proper to say straightway, that the
petitioner is not entitled to be released on bail.
8. Before law, the status of a person is immaterial, the position being, whatever may be the status of the accused, his post, command in the society,
followers, wielding power over the ruling, he is bound to obey before the law, when it is said he had committed some offence and the law should
deal with him, treating on par with an ordinary citizen. Law does not favour an individual or law should not consider the status of an individual, to
decide whether that person should have committed the offence or not. Whereas it is expected from Court of law, whether the materials produced
before me Court are sufficient to rope in the accused unquestionably, warranting conviction. This kind of situation would arise in a criminal case at
the time of the trial, recording evidence, evaluating, appreciating and appraising the same. While considering the bail, the duty of the court is to see
prima facie, whether any offence has been made out, if so, whether the release of the petitioner on bail would prejudice or jeopardize the further
investigation if any, or trial.
9. Further, at the pre-trial stage, when the presumption is available in favour of the accused, that he is innocent, till the guilt is proved, the Court
should not embark upon in analysing the evidence, in order to reach a conclusive finding, regarding the points urged by either party, as ruled by the
Apex Court. But at the same time, for granting or refusing the bail, the Court should not shirk its responsibility in assigning the reasons. For that
purpose, the paramount consideration should be the nature of offence, as well as its severity of punishment in case of conviction and the materials
sought to be relied on, in support of the accusation, reasonable apprehension of tampering the witnesses or apprehension of threat to the
complainant in certain cases where the complainant claims that he is also an affected party or the complainant claims that he is an eye witness, in
addition to prima facie satisfaction in support of the charges, whether directly or indirectly on the basis of the evidence of the eye witness or on the
basis of circumstantial evidence or on the basis of some other extraordinary attending circumstances. While doing so and exercising the judicial
discretion in granting or refusing the bail, the liberty of the individual should not be unnecessarily and unduly abridged and at the same time, justice
also should not suffer, as ruled by the Apex Court in Gurubachan Singh v. State (Delhi Admn.) AIR 1978 SC 1979. On the above basis alone, the
materials sought to be relied upon against this petitioner/accused have to be scanned to certain extent, certainly not in order to give a finding,
whether those materials are admissible in evidence, leading to conviction etc.
10. The learned Public Prosecutor, Mr. K. Duraisamy argued that on 1.9.2004, there was a conspiracy between Senior Acharya (A-1), Ravi
Subramaniam, Appu, Kathiravan and Iyer (Sundaresa Iyer), wherein they have decided to terminate the life of Sankara Raman, since he was the
perennial trouble maker, accusing Senior Acharya, implicating him in so many matters, detriment to the interest of the Mutt, by way of writing
letters, giving final warning also. It is not the case of the prosecution, as narrated before me, that at the time of the said conspiracy, Junior Acharya
viz., the present petitioner was present, participated, involved himself directly, giving idea or indirectly supporting the conspiracy said to have been
hatched between the above said persons. It is the further submission of the learned Public Prosecutor that A-1 requested the above said accused,
to contact this petitioner, inform the same, have the financial help for committing the murder of Sankara Raman and accordingly Ravi, Appu,
Kathiravan and Iyer informed the matter to the petitioner, who readily agreed to oblige and in pursuance of the same, he had also directed his
brother Raghu A-4 to make initial payment of Rs. 5 lakhs. In this way, the prosecution wants to connect the present petitioner with other accused
labeling him also, as one of the conspirators.
11. From the facts narrated above, in the absence of actual involvement of this petitioner or his participation to agree to do an illegal act or so
cause to be done, a doubt should arise, whether he would come within the meaning of the conspirator, attracting Sections 120-A and 120-B of
I.P.C, warranting prima facie case, u/s 302 r/w 120-B I.P.C, which has to be decided also, after recording evidence, during the trial. In the
absence of clear materials, to prove the meeting of minds between the conspirators, at present, it may not be possible, to say even prima facie, this
petitioner was a party to the conspiracy. Assuming for the purpose of this case, (not giving any conclusive finding) that this petitioner carried out the
mandate of Senior Acharya, if at all, it could be said that he obeyed the direction of his senior, being the junior, bound to carry out the instructions,
without any intention. If the case of the prosecution is true or it is to be accepted, even it could be said, the petitioner had carried out the direction
of the first accused, through his brother and carrying out such direction would attract the penal provision or not, is a matter to be decided later on,
after recording evidence. But prima facie, a doubt should arise regarding the participation of this petitioner as co-conspirator. In support of the
above contention, some materials were produced for my perusal, to show as if at the direction of this petitioner, his brother, Raghu had paid a sum
of Rs. 5 lakhs to Ravi, Appu and Kathiravan, thereby showing his involvement, with others.
12. Sri Kamakodi Ghatikasramam Trust is also under the control of Kanchi Mutt, though it appears, it has its own directors. The incident had
taken place on 3.9.2004 at about 5.45 p.m. In pursuance of the conspiracy, as initial payment, if any amount had been paid, it should be before
the incident. But the materials produced for my perusal would suggest, it is not so. Though a cheque is said to have been issued on 3.9.2004 i.e.
the date of the incident, it is not established before me, that in pursuance of the same, the DD was drawn on the same date, handed over to the
hirelings to carry out the mandate of A-1 one of the conspirators. This being the position, even it could be said, there is no advance payment
before the actual murder, the fact being, the murder took place at 5.45 p.m. on 3.9.2004. On 3.9.2004 it is said Mr. Raghu (A-4) had written a
letter to ICICI Bank. Kancheepuram requesting to debit from their account, a sum of Rs. 5 lakhs, further requesting to issue a DD in favour of
M/s. Residency Builders payable at Chennai. No materials has been placed before me, informing that M/s. Residency Builders, belongs to any one
of the accused at present. This letter dated 3.9.2004 also accompanied a self cheque for Rs. 5 lakhs dated 3.9.2004 for the purpose of favouring
D.D. This withdrawal of the amount or the issue of cheque, is taken advantage by the prosecution, to say as if in pursuance of the conspiracy
hatched between the accused, and as directed by the Senior Acharya the Junior Acharya has given direction to carry out the mandate of Senior
Acharya, by providing fund, for murdering Sankararaman. If that is so, the D.D. should have been drawn in favour of M/s. Residency Builders.
For that, no document has been produced for my perusal. Therefore, it is impossible, at present, to say, that in pursuance of the conspiracy
hatched between the Senior Acharya and other accused, on information, this petitioner carried out the same, and therefore, he should come within
the four walls of Section 120-B I.P.C.
13. The other materials produced, probably to prove the payment to the mercenaries or hirelings, at present, also failed to give any support. It is
not the case of the prosecution before me that apart from Rs. 5 lakhs referred above, some more amounts have been paid, enabling the
mercenaries or hirelings, for causing the murder of Sankara Raman. The documents produced for perusal indicate, that four self cheques were
drawn for, Rs. 3 lakhs on 31.5.2004 by S.S.S.V.S. Pattasala Trust; Rs. 12 lakhs on 25.7.2004; Rs. 5 lakhs on 29.7.2004 and Rs. 5000/- on
2.8.2004. Since all the cheques are dated prior to the actual incident, since no case was projected before me, that prior to 1.9.2004, amounts
were paid to the hirelings, I am unable to understand, how these documents could connect this accused, with the conspiracy, which was hatched,
even according to the prosecution only on 1.9.2004. No material is placed before me that the cash received, on the basis of the above documents,
were retained by Raghu, in order to say, that amounts would have been paid later, directly. In this view of the matter, by going through the
materials produced for the payment also, at present, it is not possible and desirable to say unhesitatingly, unless it is corroborated or connected by
other evidence, that this petitioner should have given direction to A-4, to pay the amount, in order to say that his hands are also involved in the
conspiracy.
14. The learned Public Prosecutor invited my attention to the confession statement of Krishnasamy @ Appu, to show prima facie, that this
petitioner should have paid the amount. By going through the confession statement of Krishnaswamy @ Appu, though it is inadmissible in entirety, I
am unable to find out any materials directly connecting this petitioner with the crime, whether under conspiracy or otherwise. At one place, it reads
as if Krishnaswamy @ Appu went to the room of Shri Vijayendra Saraswathy Swamigal, viz., the petitioner herein along with Ravi Subramaniam
and the petitioner called Raghu informed the message of Senior Acharya about his direction to murder Sankara Raman. It is also stated in the
confession statement that, for this, the petitioner also gave consent, not on his own, but obeying the direction of his senior and it is also stated that,
since the senior has stated so, the junior agreed to carry out the same directed Raghu to give amount, if necessary. The confession statement of the
co-accused may not test prescribed u/s 10 of the Indian Evidence Act. That apart, even no prima facie material is available therein, to rope in this
petitioner, as conspirator/accused.
15. One of the accused by name Subramaniam @ Ravi Subramaniam has given a statement before the Judicial Magistrate u/s 164 Cr.P.C. and its
aid is sought to rope in the accused. The said Ravi Subramaniam appears to have turned as an approver, receiving tender of pardon. The
statement given by Ravi Subramaniam, connecting this petitioner also, in my considered opinion, at present, may not be sufficient, in the absence of
any corroboration or supportive evidence, since it is reads:
The above statement, if admissible in evidence, which is to be tested and scanned at the time of the trial, may not positively suggest that this
petitioner, who is described as Bala Periyavar also involved in the offence, being the conspirator. After all, as per the statement given by Ravi
Subramaniam, it seems the decision taken by the Senior Pontiff was conveyed to the Junior Pontiff (the petitioner), that too, as per the direction of
the senior. It is not the case of Ravi Subramaniam, that this petitioner affirmed the same or reiterated the decision taken by the Senior Pontiff,
describing the activities of Sankara Raman, who deserves elimination. It appears, from the above statement, this petitioner requested Raghu to
make arrangement for the payment. As I have already adverted to above, at present, it is not established that by the direction of this petitioner,
payment was made by Raghu, to the hirelings. Therefore, this statement, whether it is admissible or not, fails to make out a prima facie case of
conspiracy against this petitioner.
16. The confession statement of Raghu-A4 also at present fails to make out a prima facie case of conspiracy, against this petitioner, since it does
not disclose the actual payment, supported by any documents. The statements given by M.S. Subramaniam and Kannan, as if they have seen Ravi
Subramaniam, Krishnasamy @ Appu, Kathiravan coming out from the room of Senior Pontiff and went to the junior room, must have the support
of other materials, so as to say, that the conspiracy was conveyed to Junior Pontiff and the same was affirmed, for which I find no material. The
letters said to have been written by the deceased Sankararaman to the Senior Pontiff have not been placed before me, so as to say, wherein he
had implicated this petitioner also for the alleged irregularities in the mutt, including immoral activities, etc. so as to say that this petitioner also
should have grievance against Mr. Sankara Raman, thereby conspiring or supporting the conspiracy hatched by the senior pontiff along with some
of the accused. Thus analyzing, for the limited purpose of seeing prima facie case of conspiracy, the materials relied on by the learned Public
Prosecutor appear to be insufficient and in view of this reasoning, it can be said that the petitioner has made out a case for bail, if it is not otherwise
barred.
17. The main thrust of the learned public prosecutor before me, was that if the petitioner is released on bail, there is every possibility of the
petitioner tampering the witness and no other reasons or grounds were urged, to negative the plea or to deny the right of liberty. True, because of
the position held by the petitioner, the apprehension of the prosecution may appear reasonable. But, considering the materials available on record
as far as this petitioner is concerned, the tampering of the witnesses pleaded, may not come in the way of granting bail to the petitioner, since the
tampering appears to be remote. One of the accused, after giving 164 statement, turned as an approver and he is in the custody and there is no
possibility of him coming out under th law. Hence, meddling with the statement given by Ravi Subramaniam may not arise for consideration. As far
as the statements of other co-accused are concerned, question of tampering may not arise, since its validity and admissibility are under the shade of
cloud. The other witnesses viz., employees of the mutt may be influenced, since the accused petitioner is the junior head of the mutt. But the
statements given by the two employees of the mutt have no direct bearing regarding the offence, except seeing some of the accused coming out
from the Senior Pontiffs room, then going to the room of the petitioner, in the mutt, which may be the usual courtesy, being the devotees or usual
visitors.
18. Considering all these facts and the attending circumstances of the case, I am of the considered opinion, tampering of the witnesses urged on
behalf of the prosecution appears to be not well founded and the apprehension also may not be reasonable, considering the quality of the materials
collected by the prosecution, and this apprehension is probably aimed to deny the right of bail, not acceptable to me. Admittedly the entire
investigation is over and all the materials have been collected by the competent special investigation team, who has the power to retain the materials
till the end of the trial. Considering all these facts, for the reasons assigned supra, I am constrained to say, that no prima facie case has been made
out against the petitioner, warranting him to detain further, whereas it should be said, a case has been made out for bail.
19. The Learned Counsel for the petitioner submitted, that the first accused viz, Shri Jayendra Saraswathi Swamigal (A-1) has been ordered to be
released on bail by the Apex Court, considering the same materials, which are sought to be enforced against the present petitioner and the benefit
extended to A-1 should be extended to this petitioner also, since he stands in a better position, for which I am unable to say ''No''. The Apex
Court had observed while granting bail to the first accused Shri Jayendra Saraswathi Swamigal that, ""Nothing contained in this order shall be
construed as an 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"". Therefore, as a matter of right under law, the benefit extended to Shri Jayendra Saraswathi Swamigal, cannot
be extended to the present petitioner. However, I cannot ignore the case projected by the prosecution against the first accused and the case
projected against the second accused/petitioner. As said supra, it is the case of the prosecution that the first accused alone had conspired to
commit the murder of Sankara Raman, taking the aid of other accused, for payment. For that, some materials have been placed and the Hon''ble
Apex Court felt that they may not be sufficient. In this case, the materials relied on as discussed above, to rope in this petitioner, is not so strong, as
that of A-1 and the role said to have been played by this petitioner is very limited, even according to the prosecution, as submitted before me. Thus
considering the facts of the case even independently against this petitioner, I am satisfied at present that the petitioner has made out a case for bail.
The apprehension of the prosecution that the possibility of tampering the witness could be curtailed by imposing conditions, for which denying the
right of liberty may not be proper and legal.
20. For the foregoing reasons, the petitioner is ordered to be released on bail on the following conditions that:
(i) The petitioner shall execute a bond for a sum of Rs. 50,000/- (Rupees fifty thousand only) with two sureties each for a like sum to the
satisfaction of the Chief Judicial Magistrate, Chengalpattu;
(ii) The petitioner shall remain within the Corporation limit of Chennai, except the days on which his presence is required before any other Court, in
connection with this case, or any other cases;
(iii) The petitioner shall report to the Thousand Light Police Station, every Sunday at 10.00 a.m., until further orders;
(iv) The petitioner shall surrender his passport, if any, to the Chief Judicial Magistrate, Chengalpatu, and
(v) The petitioner shall file an affidavit before the Chief Judicial Magistrate, Chengalpattu, stating that he will not tamper the witnesses, or make any
attempt even to tamper the witnesses or the materials collected and connected in this case, by any manner, and in any form, till the end of the trial.
