Special Feature: High Court warning to SIT

"Power cannot be stretched to a breaking point"

4 days after the Supreme Court granted Sankaracharya Sri Jayendra Saraswati Swamigal bail on the basis that the State had failed to make a prima facie case against Him, on January 14th, the SIT In Charge sent a letter to 5 banks in which the Kanchi Mutt and its various Trusts maintain accounts.

In his letter to the Kancheepuram branches of the Indian Bank, State Bank of India, Canara Bank, Union Bank of India and the Indian Overseas Bank, Additional Superintendent of Police Shaktivel said:

“During the course of investigation there are reasonable suspicion to indicate certain irregularities had crept in by way of money transactions to certain agencies through your bank till today. Hence it is expedient and necessary to stop all further transaction if any through your bank in future.

Therefore, I request that necessary steps may be taken immediately to freeze the account in the above reference No.1 on the file of your bank.”

On the basis of this letter, all the current accounts of the Kanchi Mutt were frozen, and the Mutt’s activities placed in jeopardy. The Mutt’s ability to continue its traditional observances, administer its payroll, its numerous charitable works were all placed at risk.

The Mutt’s employees could not be sure of receiving their month-end salaries. Indigent recipients of medical aid had to worry about being able to continue their treatment. Since the police had sequentially charged the Mutt’s Peetadipathis and a number of its employees in a series of cases, Mr. Shaktivel’s letter was bound to fetter these individuals from conducting their legal defense.

Yesterday, the High Court ruled the police action unsustainable under law, and ordered the Kanchi Mutt accounts freed. Sadly, the details of that judgment have been glossed over by the press. However, we believe this case to be instructive of the issues arising out of this case. One of these is a question of religion. The second concerns the exercise of governmental powers.

The Prosecution argument rested on three points. First, they claimed the Mutt was not a religious institution, as it had never been registered as one. Its activities were therefore not protected under the Constitutional right to religious freedom.

Second, not only was the Mutt not a religious institution, but, according to the Prosecution, it had no juridical standing. That is to say, the Mutt was not an entity in the eyes of the law. As such, the Mutt could not seek justice before a court of law, and their petition should not even be considered. As a legal non-entity, the Mutt’s operation of its accounts and charitable Trusts had been illegal all along!

Finally, in the absence of a freeze, the Mutt’s money might be used to “tamper witnesses.” Since these monies might be used in the commission of a crime, the police argued they were liable to seizure under Section 102 of the Criminal Procedure Court.

Justice KP Sivasubramaniam refuted the Prosecution’s first claim handily. Pointing to the antiquity of the Kanchi Mutt, and its acceptance by a large section of society, it was, indisputably, a religious institution. The Kanchi Sreematam, he averred: “is not one of the mushroom mutts or religious outfits of recent origin most of which are established with ulterior motives. The ancient mutts like the petitioner, Thiruvavaduthurai, Thirupanandal, Ahobilam Mutt, Madurai Adheenam, etc., were established by great saints.”

Antiquity, the greatness of its founders, as well as the sentiment people attached to it, qualified an institution as religious, ruled the Honorable Justice. All that mattered to the State of Tamil Nadu was the registration.

In a body blow to SP Shaktivel, the Court also disputed the police’s interpretation of their powers under criminal law. Section 102, said Justice Sivasubramaniam, deliberately limited the scope of police power with regard to property seizures, and was meant to be construed narrowly. “Otherwise, the provision would be arbitrary ... and would be liable to be misused for ulterior purposes.”

Under Section 102, police could only seize property that was either stolen or “connected to the commission of any offence.” Further, the Supreme Court had ruled that the seized amount “has to be the outcome of commission of offence”. That meant offences that had actually occurred, averred the Court, not “the apprehension or possibility” of “future activities”.

The Justice concluded: “I am unable to comprehend any possibility or justification to invoke Section 102, Cr.P.C. as regards future activities of the Mutt."

The Justice pointed out that the Prosecution’s argument would mean the police could seize the property of anyone accused of a crime under the I.P.C. For instance, if a Company’s manager was charged with murder, the police could seize and shut down that Company. This was clearly not what was envisioned in Section 102.

Since the Mutt had offered to abide by any such order, the Court ruled that the police could oversee the Mutt’s accounts for “a reasonable period”, even though, in the Courts view it was “wholly unwarranted” and strictly speaking, "cannot be justified or sought for by the police."

In conclusion, the Honorable High Court cautioned the police sternly. Citing the maxim that “all power has legal limits”, Justice Sivasubramaniam admonished:

“The power which is vested for a particular purpose cannot be stretched to irrelevant matters and to extremes and to a breaking point, in the event of which, the Court is compelled to interfere. Discretion to use the power should be used and exercised cautiously, failing which, it becomes misuse of discretion and tainted with arbitrariness.”

And as a parting shot:

“A word of caution to the Special Investigation Team: By all means, take action in the criminal cases against the indicted individuals with a single-minded determination if you feel convinced about their guilt. No one is above the law. But if you divert and deviate from that direction unmindful of the rights of innocent devotees of the Mutt, it would result not only in diluting the prosecution, but also cast a deep shadow on it.”

Superintendent Shaktivel, are you listening?