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MEMORANDUM OF CRIMINAL ORIGINAL PETITION
(UNDER SECTION 439 OF THE CRIMINAL PROCEDURE CODE)

IN THE HIGH COURT OF JUDICATURE AT MADRAS
(CRIMINAL O.P NO. 38880 OF 2004
IN
FIR NO.859 OF 2002
(ON THE FILE OF THE RESPONDENT POLICE)

SRI JAYENDRA SARASWATHY SWAMIGAL ……….Petitioner/Accused

STATE BY
B-5 Foreshore Police Station, Chennai
Now investigated by Addl S.P P.E.W
Kancheepuram ………..Respondent

BAIL PETITION FILED UNDER SECTION 439 OF THE CRIMINAL PROCEDURE CODE.

The address of services of all notices and processes of the Petitioner is that of his Counsel M/s M. SATHYANARAYANAN P.I RAMKUMAR and ARUN ANBUMANI at IV High Court Chambers, High Court Building Chennai- 600 104
1. Sri Jayendra Saraswathy Swamigal, the Petitioner herein begs to prefer this Memorandum of Criminal Original Petition before this Hon’ble High Court seeking to enlarge him on bail in Crime NO.859 of 2002 pending investigation on the file of B-5 Foreshore Police Station. Chennai now investigated by Addl S.P P.E.W Kancheepuram for alleged offences under Sections 452, 324 and 307 of the Indian Penal Code. It is now claimed by the Prosecution that the Petitioner herein is a conspirator and the attempt to commit murder was committed by hired assassins at his instance. The Petitioner is presently lodged in the Central Prison Vellore. This is the first bail application preferred by the Petitioner before this Hon’ble High Court.

2. The Petitioner herein is presently the Senior Pontiff of the Kanchi Kamakoti Peetam, one of the five institutions established by Sri Adishankara around 860 A.D. It has devotees all over India and abroad. Besides disseminating Vedanta and scriptural knowledge to the masses the Mutt is engaged in other social and charitable activities catering to millions of people all over India. Charitable Hospitals and Educational Institutions imparting Post Graduate teaching in various faculties are also in the sphere of activities of the Mutt.

3. It is submitted that in the usual course of his religious duties the Acharya Sri Jayendara Saraswathy Swamigal., the Petitioner herein left Kancheepuram on 23.09.2004 and proceeded to Madurai and thereafter to various other places. He ultimately landed in Mehboob Nagar on 10.11.2004. Pertinent it is to note that between the 3rd September 2003 and the 23rd September 2004, the Police never visited the Mutt nor did they attempt to contact the Acharya in relation to the case.

4. While so on 09.11.2004 the Tamil Nadu Police investigating Crime No.914 of 2004 claims to have arrested one Kathiravan who is said to have confessed about his complicity in the murder of one Sankararaman, Manager, Varadaraja Swamy Temple, Kancheepuram and that based upon his confessional statement monies were recovered from him. It appears that the said Kathiravan had implicated the Petitioner herein as a conspirator and responsible for the murder of the said Sankararaman. To the same effect, one Rajini alias Chinna is also alleged to have been arrested by the Police on the very same day and he is also alleged to have admitted his guilt.

5. Based upon the materials the Tamil Nadu Police went over to Mehboob Nagar in Andhra Pradesh in a State owned Cessna aircraft with a posse of high ranking police officials heavily armed with sophisticated weapons which was in fact objected by the CISF authorities. It is understood that a helicopter was also pressed into service, obviously for surveillance. This operation was admittedly for arresting the Acharya at Mehboob Nagar and bringing him to Madras. The irony is, it was a Deepavali night coupled with the fact that the Acharya who in the Z category security could never flee from Mehboob Nagar to enable the Acharya apparently along with his commandos to flee from the place. The justification to embark upon such a course of action is now found to be unsustainable.

6. The Petitioner herein after his arrest at Mehboob Nagar was brought to Madras and thereafter taken to Kancheepuram where the Hon’ble Judicial Magistrate No.1 on 12.11.2004 remanded him to judicial custody till 26.11.2004. His custody has been extended subsequently and he is under incarceration till then. While so, on 23.11.2004 the Petitioner while he was in judicial custody in the Central Prison, Vellore he was served with arrest intimation in respect of Crime No.859 of 2002 on the file of B-5 Foreshore Estate Police Station for alleged offences under Sections 452, 324 and 307 of the Indian Penal Code.

7. The complainant in Crime No. 859 of 2002 was one Mr. Radhakrishnan. The First Information Report in the case reveals that the said Radhakrishnan and his family members were attacked on 20.09.2002 at about 7.30 p.m by two persons aged 26, 30 years. It is stated that when the two persons entered the house one shouted ‘kill him’ and subsequently the other persons attacked Radhakrishnan. It is further stated that when his wife and servant intervened all of them sustained injuries. The two persons fled from the scene when they raised an alarm. The complainant Radhakrishnan informed his brother Narayanan by phone and that his son Harish admitted them to Devaki Hospital. Pertinent it is to note that the First Information Report does not disclose any names or identity or any other particulars of the accused. The copy of the FIR has been annexed in the typed set of papers.

8. It is respectfully submitted that the investigating agency effected no arrest or recovery on the past two years. It is now understood that the Petitioner was arrested in the case based on the alleged confessional statement made by one Kathiravan an accused (A-1) in Crime No.914 of 2004. The Police claims to have arrested Kathiravan on 9.11.2004. It may be submitted at this juncture that the said Kathiravan had given a judicial confession on 19.11.2004 itself and prosecution served the arrest intimation on the Petitioner only on 23.11.2004. The Petitioner was subsequently produced before the jurisdictional Magistrate at Saidapet Chennai on 26.11.2004. The Petitioner was remanded to 15 days judicial custody till 09.12.2004. The custody has now been extended.

9. In respect of the said case in Crime No. 859 of 2002 the Petitioner herein preferred an application for bail on 26.11.2004 before the Principal Sessions Judge, Madras. The Counsel appearing for the Petitioner submitted the following.

a. There is no evidence whatsoever to connect the Petitioner with the case. The Petitioner was innocent and that the case against him was foisted.
b. The name of the Petitioner is not mentioned in the FIR nor did the complainant cast any suspicion of the Petitioner’s involvement.
c. The case is in respect of an occurrence that took place two years ago and that the witnesses have been examined.
d. The alleged confession of the co-accused on whose instance the Petitioner was implicated and came to be arrested cannot be taken into consideration. This is especially so when the confessions stood retracted and the accused complained of his illegal detention, torture, ill treatment and the police torturing him to give incriminating statements against the Petitioner herein.
e. The accused is presumed to be innocent until proven guilty and Court shall presume innocence of the Petitioner. The Counsel relied upon the decision of the Constitutional Bench of the Hon’ble Supreme Court in Gurbaksh Singh Sibbia vs State of Punjab reported in 1980 (3) SCR 383.
f. The injured were discharged from the hospital long back.
g. The Petitioner is aged 70 years a chronic diabetic and requires constant medical attention.
h. Alternatively the ban is section 437 (1)-------Cr. P.C will not apply to cases where the maximum punishments is only life imprisonment .
10. The Senior Counsel appearing for the prosecution objected to the release of the Petitioner on the following.
a. Dangerous weapons used by the accused were recovered.
b. Witnesses have identified the accused.
c. The accused retracted his confession on advice by his lawyers and that the Petitioner has this much influence while in prison.
d. The injured Radhakrishnan wrote letters that were sent by registered post to the investigating Officer of the case alleging the Petitioner’s direct involvement on the attack against him.
e. That if the Police had acted with due diligence and taken action against the Petitioner then the life of Sankararaman could have been saved .
f. As per the decision in Kalyan Chandara Sarkar vs Rajesh Ranjan alias Pappu Yadav and another reported in 2004 (7) SCC 528, the statutory mandate engrafted in Section 437 (1) of the CRPC would apply to the Sessions and or High Court as well and hence the Petitioner was disabled from seeking bail.
11. The Counsel appearing for the Petitioner had countered each and every argument put forward by the prosecution and replied .
a. The so-called recovery of weapons allegedly used by the assassins in the incident which was recovered two years after the occurrence is too big a pill to swallow.
b. The so called identification parade where in the witnesses are said to have identified the accused was held after two years of the occurrence. Further the identification parade would have had no value in the eyes of law as the identity and photographs of the accused were widely circulated by the Press.
c. The confession of the co-accused is not substantive evidence and can be relied upon only to lend an assurance and that too after marshalling all other evidence. The retracted confession has totally foiled the prosecution’s theory .
d. If the letters were written as early as 2003 and they clearly implicated the Petitioner and his involvement then why wasn’t the Petitioner interrogated then and arrested if need be.
e. Why wasn’t action taken against the concerned Investigating Officer and the Commissioner of the City of Chennai for such lapses as admitted by the Senior Counsel appearing for the State.
f. The judgment in Kalyan Chandra Sarkar vs Rajesh Ranjan alias Pappu Yadav and another reported in 2004 (7) SCC 528 may have to be confined to the peculiar facts thereof and cannot be considered as either laying a ration or for that matter a binding precedent under Article 141 of the Constitution of India. Even otherwise the Learned Judge had not taken the note of the decision of the Constitutional Bench in Gurbaksh Singh Sibbia vs State of Punjab reported in 1980 (3) SCR 383 and the Division Bench in Gurcharan Singh vs State (Delhi Administration ) reported in 1978 SCC Crl 41.
12. Despite the foregoing the Hon’ble Sessions Court Madras on 10.12.2004 was pleased to dismiss the bail petition by holding that there is a prima facie case as against the Petitioner at this stage. The Learned Judge further held that the Petition is not maintainable and the same is dismissed. Aggrieved over the Judgment of the Hon’ble Sessions Court. Madras dated 10.12.2004 the Petitioner preferred Special Leave Petition (Criminal) No.6215 of 2004. The Special Leave Petition came up for hearing on 17.12.2004. The Senior Counsel appearing for the Respondent herein had objected to the hearing of the Special Leave Petition came up for hearing on 17.12.2004. The Senior Counsel appearing for the Respondent herein had objected to the hearing of the Special Leave Petition on the ground that the Petitioner directly approached the Supreme Court by Passing the High Court and was seeking to lay down new law. It was submitted on behalf of the Petitioner that the Special Leave Petition filed by the Petitioner was maintainable in law. The Hon’ble Supreme Court directed the Petitioner to file an appropriate petition before the High Court, Madras and seek redress. In pursuance to the said direction the Petitioner has filed the present Bail Petition under Section 439 of the Code of Criminal Procedure.
13. It is respectfully submitted that there is no more justification for keeping the Petitioner under incarceration. Moreover the Investigating Agency is also now disabled from seeking police custody of the Petitioner. It is also understood that material witnesses in the case have been examined. . The identification parade is also over there is no possibility of the Petitioner resorting to any act by which the free investigation in the case would be impeded. Besides, he is aged 70 years and being a chronic diabetic needs constant medical attention which the Prosecution itself has unambiguously and in all fairness admitted.
14. The Petitioner respectfully submits that he will never misuse or abuse his liberty in the event of his release on bail. He will not make himself scarce or abscond if ordered to be released on bail. The Petitioner submits that any allegation of alleged tampering or absconding is fanciful and frivolous and not based on facts and reality.
It is therefore prayed that this Hon’ble Court be pleased to enlarge the Petitioner on bail in Crime No.859 of 2002 on the file of B-5 Foreshore Police Station, Chennai now investigated by Addl. SP P.E.W Kancheepuram, the Respondent Police herein, for alleged offences under Sections 452, 324 and 307 of the Indian Penal Code pending investigation and render justice.

DATED AT CHENNAI THIS 20TH DAY OF DECEMBER 2004

COUNSEL FOR THE PETITIONER
Note
1. This is the First Application before the Hon’ble Court, Madras
2. The Petitioner is presently lodged in the Central Prison, Vellore
3. Bail to the satisfaction of XXIII Metropolitan Magistrate Sadapet, Chennai 600 015

MEMORANDUM OF CRIMINAL
ORIGINAL PETITION
(UNDER SECTION 439 OF THE
CRIMINAL PROCEDURE CODE)

IN THE HIGH COURT OF
JUDICATURE AT MADRAS
(CRIMINAL ORIGINAL
JURISDICTION
CRIMINAL O.P NO. 38880 OF 2004
IN

FIR NO.859 OF 2002
(ON THE FILE OF THE
RESPONDENT POLICE)

SRI JAYENDRA SARASWATHY SWAMIGAL
……… .Petitioner/Accused

STATE BY
B-5 Foreshore Police Station, Chennai
Now investigated by Addl S.P P.E.W
Kancheepuram
…………...Respondent

BAIL PETITION FILED UNDER
SECTION 439 OF THE
CRIMINAL PROCEDURE CODE.

M/S M. SATHYANARAYAN
P.T RAMKUMAR
ARUN ANBUMANI
(COUNSEL FOR THE PETIONER)