'There Is Absolutely No Evidence'

Before the bail for the Senior Shankaracharya, Jayendra Saraswati by the SC could be savoured and hailed by the faithful that the Tamil Nadu police moved in to arrest the junior Shankaracharya, Vijayendra Saraswati, leaving charges of vindictiveness in its trail.
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Finally, the Kanchi Shankaracharya Jayendra Saraswati has been granted bail by the Supreme Court and that too with a virtual indictment of the Tamil Nadu police for failing to provide evidence, 60 days after his arrest in the Sankararaman murder case on November 11, 2004.

"We are of the opinion that prima facie a strong case has been made out for grant of bail to the petitioner.

The appeal [by the Sankaracharya] is allowed and the impugned order of the High Court is set aside," a Bench comprising Chief Justice R C Lahoti, Justice G P Mathur and Justice P P Naolekar said while restraining the seer from visiting the math till probe into the case was completed.

"The petitioner shall be released on bail on his furnishing a personal bond and two sureties to the satisfaction of the Chief Judicial Magistrate, Chengalput, and that he should surrender his passport before the CJM."

Allowing the seer's appeal against the Madras High Court order refusing him bail in the case, Justice Mathur, writing for the Bench, said the observations of the Court in prima facie appreciating the evidence against the seer should not be construed as a "final expression" by the trial court.

The Court rejected the prosecution's claim that the tirade of Sanakararaman against the alleged mal-administration of the math and illegal activities of the seer formed a major ground for the motive of Sankaracharya to eliminate him.

"There is absolutely no evidence or material collected so far in investigation which may indicate that the Sankaracharya had ever shown any resentment against the deceased for having made allegations against either his personal character or the discharge of his duties as Sankaracharya of the math".

Noting that the Sankaracharya had kept absolutely quiet for over three years on the tirade of Sankararaman against him, the Court said "the petitioner having kept 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 purposes". On the transaction of Rs 50 lakh for payment to assailants and the changing theories of Tamil Nadu Police on it, the Bench referred to the bank statements produced by the counsel for the Seer Fali S Nariman showing that the money was deposited in a bank long before the murder and there was no question of it forming a part of the case.

The Court said "this clearly shows that the entire amount of Rs 50 lakh which was received in cash on April 30, 2004, was deposited in bank on May 7, 2004.

"This belies the prosecution case, which was developed subsequently after the order has been passed by the Court on December 17 directing the State to produce copy of ICICI Bank account, that the cash money was retained by the petitioner from which substantial amount was paid to hirelings," it said.

The mainstay of the High Court order, that the apex Court had put a bar on granting bail in heinous crimes punishable with murder or life imprisonment as ruled in the Pappu Yadav case, was also demolished by the Supreme Court in its ruling.

It said the Pappu Yadav case verdict was concerned with the peculiar facts of that case and the observations made therein could not have a general application in all cases.

On the reliance of Tamil Nadu police on so-called confessional statements of the accused, the Supreme Court said "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. "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," it said.

"No worthwhile prima facie evidence apart from the alleged confessions have been brought to our notice to show that the petitioner along with other accused was party to a conspiracy," the Court said.

Refusing to elaborate its opinion on the evidence collected by Tamil Nadu Police on this aspect, the Bench said "we do not feel the necessity of expressing a concluded opinion on this question in the present case as the matter related to grant of bail only and the question may be examined more deeply at the appropriate stage."

Referring to the alleged telephonic conversation between Sankararaman with another witness in which the deceased had allegedly said that the seer would be responsible if any harm came to him, the Bench said: "The witness in his 164 Cr.P.C. statement before a Magistrate had merely stated that Sankararaman spoke to him on September 3, 2004. Since the telephonic conversation which 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".

The Court also weighed the evidence of two witnesses who, the prosecution claimed, had directly overheard the conversation between the seer and other accused conspiring to kill Sankararaman. The Bench said "these persons are not employees of the math 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."

The Court, after taking a prima facie view of the entire case documents and evidence collected by Tamil Nadu police against the Sankaracharya, said "a strong case has been made out for grant of bail to the petitioner".

It said Nariman has made a very fair statement that till the investigation was under progress, Sankaracharya would not visit the math premises.

However, in the concluding paragraph of the 17-page judgement, the Bench said "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," it said.